(dissenting). — I am unable to concur in the foregoing opinion, for while I must concede that the conclusions therein seem to be justified by the authorities cited in their support, I cannot free my mind from the opinion which I have long entertained, that it was the intention of the legislature, in providing for appeals from certain judgments and orders, that, except when otherwise expressly provided, the effect of an appeal should be not' only to stay any affirmative action by which the judgment appealed from was sought to be enforced, but also to entirely suspend the force of such judgment during the pendency of the appeal. All the legislation upon the subject seems to indicate that such was the intention of the legislature. It has greatly extended the right of appeal and made it apply to *350judgments and orders from which no appeal would lie except by virtue of express legislation. In. many of these the right of appeal would be of little or no benefit if, during its pendency, the judgment or order appealed from should remain in force. That it has been the object of the legislature to not only thus enlarge the right of appeal but to provide fully for the protection of appellant’s rights during its pendency is not disputed; but, it is claimed that judgments or orders granting, injunctions and judgments of ouster in proceedings in the nature of quo warranto are exceptions to the general rule. As to these it is claimed that, notwithstanding an appeal and the offer by the appellant to give a bond that shall amply protect the rights of the respondent, they will not be suspended but will remain in full force so that the appellant will be bound thereby as fully after he has perfected his appeal as before. I can see no sufficient reason for excepting judgments of this kind from the general rule. There would be greater reason for excepting judgments or orders granting injunctions from the general rule than there would for so excepting judgments of ouster; but if it had been the intention of the legislature that such judgments or orders should be excepted, there would have been little reason in extending the right of appeal to orders granting temporary injunctions. If the effect of' an appeal from an order of this kind was not to suspend it so that it would no longer bind the appellant, he could derive no benefit from an appeal therefrom. Before such appeal could be determined the case would, under ordinary circumstances, have been tried upon its merits, and a final judgment rendered.
But it is said that if a judgment of this kind could he suspended, the relator would be deprived of any *351substantial benefit of his proceeding, for the reason that before the appeal could be prosecuted to a final determination the term of office over which the contention was being waged would have terminated. But this argument loses sight of the fact that the court would require such a bond as would amply protect the respondent. Beside, less hardship and uncertainty, not only to the contestants but to the public, would flow from the rule which allows the judgment to be suspended than from the contrary one. If the judgment is not suspended it may well happen that the person declared elected to the office may go into possession thereof and in a few weeks be compelled to surrender it by reason of a judgment of ouster in the superior court, and in a few months more be reinstated therein by reason of the reversal of such judgment of ouster.
Public policy will be best subserved by such a construction of the legislation as to appeals as will make the rights of appellants in all classes of cases as nearly uniform as circumstances will allow. When a general rule exists it should be applied to every case possible, and exceptions should only be recognised when they have been expressly provided for or are absolutely necessary to the protection of the rights of parties.
There is a suggestion in the majority opinion as to the right of the appellant to appeal from any judgment which may be rendered in the contempt proceedings. If by what is said it is intended to intimate that by reason of the fact that an appeal will lie from the judgment in such contempt proceedings, prohibition against the superior court should not be allowed even though it was proceeding without jurisdiction, I cannot agree to such intimation. To hold that a de*352fendant must obey a judgment which he is satisfied is of ho force against him or take the chances of being punished by fine and imprisonment for violating it, if it eventuates that he is mistaken, is to establish a rule which may result in great oppression. A sensitive person might prefer to suffer in silence by reason of a judgment which he believed to be void rather than take the risk of being imprisoned for violating it, if it should afterwards be held to be in force. Hence the fact that the defendant may appeal from a judgment rendered in á contempt proceeding does not render such an appeal an adequate remedy. Beside, this question has been so often decided by this court adversely to the position intimated in the majority opinion that it should now be treated as stare decisis.