29 Wn.2d 843, THE STATE OF WASHINGTON, on the Relation of Taxpayers of Pierce County et al., Plaintiff, v. F. G. REMANN, as Judge of the Superior Court for Pierce County

[No. 30522. En Banc.      Supreme Court      February 24, 1948.]

THE STATE OF WASHINGTON, on the Relation of Taxpayers
           of Pierce County et al., Plaintiff, v. F. G. REMANN,
                as Judge of the Superior Court for Pierce
                              County, Respondent.1

[1] APPEAL AND ERROR - CERTIORARI - HEARING AND REHEARING - DIVIDED COURT - AFFIRMANCE. Where a cause before the supreme court on appeal or certiorari is heard by eight judges who divide four to four, and a hearing before the full court in the near future is impossible, the judgment of the superior court will stand affirmed.

Certiorari to review a judgment of the superior court for Pierce county, Remann, J., entered February 7, 1948, upon findings, in an action under the declaratory judgment law, validating a proposed county bond issue. Affirmed.

John J. O'Connell, for relators.

Patrick M. Steele, Hardyn B. Soule, and John B. Krilich, for respondent.

PER CURIAM. -

This case came to us by way of a review of a declaratory judgment entered by the superior court of Pierce county validating a proposed bond issue created by the board of county commissioners of Pierce county.

[1] Due to the inability of one of the judges of this court to participate in the hearing, the case was argued to eight judges, who, after consultation, divided four to four. In such cases, the judgment of the superior court is not disturbed. See Serra v. Nat. Bank of Commerce of Seattle, 27 Wn. (2d) 277, 178 P. (2d) 303, and cases there cited.

Because of the impossibility of a hearing of this case before the full court in the near future, we have decided to remand the cause to the trial court.

The judgment of the superior court will stand affirmed.

The clerk of this court is directed to send down the remittitur in this case forthwith.

1 Reported in 190 P. (2d) 95.

[1] See 131 A. L. R. 1011; 3 Am. Jur. 671.

 844    TOGLIATTI v. ROBERTSON.      [29 Wn. (2d)

MILLARD, J. (concurring) - When one of the judges of this court is incapacitated and absent on account of illness and the cause is argued to the remaining eight judges sitting En Banc, the judgment of the trial court stands affirmed if there is no majority either for affirmance or for reversal and immediate disposition of the cause is necessary. We so held in Clise v. Carroll, 163 Wash. 704, 300 Pac. 1047, and Edwards v. Carroll, 163 Wash. 704, 300 Pac. 1048, when Judge Fullerton was incapacitated and absent on account of illness.

In the case at bar, bids for bonds will be opened February 27, 1948. I am for affirmance on the merits, also.