(dissenting). — The ruling question in this case is whether an appeal, duly taken, with bond given as provided by statute, suspends the execution of a judgment by the circuit court, in a contested election case, until the appeal can be passed upon by the appellate court.
Our learned brethren answer this question in the negative. We think, with all due respect, that it should be answered in the affirmative.
The question is important enough to warrant a short statement of some reasons that lead us to dissent.
The case turns at last on the meaning to be given to the words, “until the contest shall be decided,” as they occur in section 4707 (R. S. 1889J. We hold that those words refer to the final decision of the contest, wherever that may occur.
1. In our opinion it does not follow from the fact that a judgment is final, within the meaning of a law permitting an appeal only from a final judgment, that it therefore is necessarily to be held final for the purpose of enforcement pending an appeal taken from it, as our brethren seem to say. Whether or not it is so enforceable, in the face of an appeal, depends on the intent of the lawmakers as expressed by the statutory regulations of the subject of appeal.
In the case at bar, the inquiry whether the circuit judgment in an election contest is sufficiently final to support an appeal seems to us unimportant, since the statute expressly gives an appeal in that class of cases. R. S. 1889, sec. 4744.
*520The right of appeal now exists in Missouri'in many instances where no final judgment has been rendered. Laws, 1891, page 70, amending section 2246, Bevised Statutes, 1889.
• In ordinary civil actions in Missouri, an appeal, because of the express terms of law, operates as a stay of execution upon the giving of bond in compliance with the statute. Bevised Statutes, 1889, sections 2249 and 2250. But where a proper bond is given, the appeal is held to operate a stay of any affirmative action, or process, to carry out the judgment pending the appeal, notwithstanding the fact that the judgment may be final enough to support an appeal. State ex rel. v. Lewis (1882), 76 Mo. 370; State ex rel. v. Ranson (1885), 86 Mo. 327.
By virtue of the statute concerning appeals in contested elections, the only appeal bond required is for costs. Section 4744. The giving of that bond and the usual affidavit perfect the appeal, and bring the jurisdiction of the appellate court to bear upon the case. Tet, in that condition of the record, our learned brethren hold that the contest is “decided,77 and that the affirmative process (necessary under section 4707) to enforce the judgment may be issued and executed at once, by the circuit court, notwithstanding an appeal may be pending to review that judgment.
If that view shall ultimately prevail, and if each decision during the progress of the case is to be held final for the purpose of effecting a change of officers, we might, in one contest, see, first, the contestee filling the disputed office, under his certificate of election; next, the contestant taking it under a judgment of the circuit court; then, upon a possible reversal of that judgment for some error of law, the contestee would be replaced, until a second trial could occur on the circuit, with, perhaps, more changes upon further litigation. *521Thus the office might be tossed about like a shuttlecock between the two claimants until the contest should be “decided” by a judgment, which would really be the conclusion of the law as applied to the controversy.
We do not believe such results were intended by the statutes on this subject, and hence that a construction permitting those results is not sound.
When the appeal has been duly perfected and bond given, as the statute directs, it should be held to stay all process requiring any act to be done, commanded by the circuit court judgment. That is, on principle, the normal effect of such an appeal in' the nature of a writ of error, in the absence of statutory provisions to the contrary. That proposition was positively declared in Hudson v. Smith (1859), 9 Wis. 122, quoted and followed in Missouri in State ex rel. v. Lewis (1882), 76 Mo. 370, as well as in Wisconsin in a later opinion by Chief Justice Ryan. Insurance Co. v. Hotel Co. (1875), 37 Wis. 125.
We consider that the contest should not be regarded as “decided” until finally decided in due course; and that no intermediate judgment, duly appealed from, should be carried into execution during such an appeal.
2. But whatever doubt there may be as to the meaning of the words “until the contest shall be decided,” in section 4707 (standing alone or read.in connection with section 4744), we think is cleared away upon considering another section of the statute bearing on proceedings of this nature, namely, section 8611 (Revised Statutes, 1889).
It is there provided that whenever any office, the emoluments of which are required to be paid from the state treasury, shall be contested, no warrant shall be drawn or paid for the salary attached to said office, until the right to the same shall be “legally deter-, mined” between the parties claiming such right, with *522a proviso that the person to whom the commission for snch office shall have issued may receive the salary of the office as it falls due, upon giving bond to the claimant, in double the amount of the annual salary of the office, conditioned to pay to the latter the salary so received (with interest) in event of a decision in favor of the latter, “upon final determination of the rights of the contestants.”
The section further makes it the duty of every contestant to notify the state auditor of his contest under the penalty of not having it heard until such notice has been given.
The provisions of law just mentioned seem to us to make it very plain that the words “legally determined” and “upon final determination of the rights of the contestants,” occurring in that section, are used to express the same legislative thought. It is evidently the same thought embodied in the words, “until the contest shall be decided,” in section 4707.
The section for the stoppage of state salary during a contest for an office paid by such salary is a part of the body of statutory law regulating contested elections. Hence, on the authority of a ruling of our learned brethren in this very case, that section may properly be considered in gathering light to construe any doubtful passages in other parts of that law.
That section (8611) does not, it is true, apply to offities paid by fees, as is the one in contest between Messrs. Nash and Craig in the case at bar. But, on the other hand, no different mode of procedure is provided for reviewing contests in that class of cases from the mode prescribed for other offices.
The phrase “until the contest is decided,” in section 4707, applies to offices with a state salary as well as to the office in question in Mr. Nash’s pending contest. Yet the section governing contests for offices *523paid by the state obviously contemplates no payment of salary-without bond, until “final determination of the rights of the contestants.” The whole tenor of that section reveals that its provisions are intended to supply (in the cases mentioned) the full effect that an appeal bond produces in ordinary actions. The facts that no such bond is demanded where the office is compensated by fees, and only a bond for costs is then required (section 4744) merely disclose the legislative purpose to give the incumbent of such a contested office the fees thereof while he discharges its duties.
But no difference is made by the statute law, as to the mode of, appeal in the two classes of cases, or as to the right of the holder of the certificate to keep the office “until the contest is decided.”
Reading all these sections together, it appears to us that the intent of the legislature to leave the person obtaining the certificate of election in possession of the office until “final determination of the rights of the contestants” (as said in section 8611) is very manifest. That intent, we say with due deference, should be carried out by this court.
The rule for a prohibition should be made absolute, and we respectfully dissent to the judgment of our learned colleagues to the contrary.
Beace, C. J., joins in this opinion.