State ex rel. Engen v. Hewen

Pemberton, J. On November 15, 1923, defendant, a judge of the superior court of Grays Harbor county, after a trial in a case wherein the Grays Harbor Dairymen’s Association was plaintiff and plaintiffs herein were defendants, entered a decree enjoining plaintiffs from selling milk to anyone other than the dairymen’s association. This is a proceeding for a writ of mandate directed to the defendant as judge requiring him to further fix the amount of supersedeas bond to suspend the injunction pending the appeal. It is the contention of the plaintiffs that they are entitled to a stay for the reason that the injunction is mandatory in fact although prohibitory in form. The material portion of the decree reads as follows: “That the defendant be and they are hereby enjoined from selling any of their marketable milk pro [35] duced upon their farm to any third person, firm or corporation.” It is stated that the injunction is none the • less mandatory because couched in prohibitory language. High on Injunctions, vol. 1 (4th ed.), § 2, p. 6; Procter v. Stuart, 4 Old. 679, 46 Pac. 501; State ex rel. Norris Safe & Lock Co. v. Superior Court, 30 Wash. 177, 70 Pac. 256. We cannot hold that the language of the decree is in fact mandatory. It does not require the sale of the milk to the Grays Harbor Dairymen’s Association. It is the contention that the appeal will he made futile unless the status quo is preserved pending the determination of the appeal upon its merits. The Grays Harbor Dairymen’s Association might well contend that a stay of proceedings while an appeal is pending would destroy the purpose of the action by permitting the injuries complained of to be accomplished. We said in the case of State ex rel. Commercial Electric L. & P. Co. v. Stallcup, 15 Wash. 263, 46 Pac. 251: “The remedy afforded by injunction is often sought to prevent irreparable injury which cannot he estimated in dollars and cents, and if the injunction is suspended while an appeal is pending, it might and doubtless would often follow that the mischief would he done which the object of the action was to prevent. “To hold that the legislature intended to authorize a party to commit the very act which it is the sole object of an action to prevent, in the face of an adverse order or decree standing unreversed, and remand his adversary to another forum there to seek in another form of action damages which he might he loath to accept, and which would oftentimes he difficult of ascertainment, and more often inadequate, upon the mere general terms of a statute that is inapplicable to the very nature of the case, would he unreasonable and do violence to the spirit, if not the letter, of the law.” [36] In the ease of Lund v. Idaho & Washington Northern R. Co., 48 Wash. 453, 93 Pac. 1071, we said: “The injunction is prohibitory and cannot be superseded as a matter of right under any statute of this state. We have repeatedly held that a trial court will not, by the mandate of this court, be required to fix a bond superseding a prohibitory injunction.” It was not an abuse of discretion to refuse to grant a stay of proceedings. The application will be denied. Main, C J., Mitchell, Fullerton, and Bridges, JJ., concur.