the shooting gallery was put in about De-tory or prohibitory,—a mandatory injunction cember 4, 1904, and the orchestrion about one week prior to the commencement of the action. It will be observed, therefore, that the order of the court had the effect of changing the status quo of the parties, as it prohibited the relators from conducting a part of their business and from operating the so-called musical instruments, all of which they were doing at the time the injunction issued.

The relators contend that, when considered with reference to the right of supersedeas, there is a distinction between an injunction that merely restrains the commission of an act the defendant is about to commit, or attempting to commit, and one that restrains the continuance of an act which he is performing at the time of the issuance of the order; that the one cannot be superseded on an appeal, for the reason that the status quo of the parties is not changed by the injunction, the effect of the same being in fact to maintain the status quo of the parties, while the other can be superseded for the very reason that the injunction does not maintain, but actually changes, the status quo. The distinction here sought to be drawn between injunctions that can be superseded and those that cannot is not the distinction ordinarily drawn by the cases. According to the usual classification, injunctions are either manda

being one that compels the performance of some affirmative act, while a prohibitory injunction is one that operates to restrain the commission or continuance of an act;-and it is only the former that is superseded by taking an appeal and giving the supersedeas bond provided by statute. The reason usually given for this distinction is that an appeal and supersedeas does not destroy the intrinsic effect of a judgment; that, notwithstanding the appeal, the judgment is still the measure of such of the rights of the parties as it adjudicates, and, until reversed, it operates as an estoppel and a res judicata as effectively as it would had no appeal therefrom been taken and no supersedeas bond-given. In other words, the appeal and supersedeas operates as a stay of affirmative action upon the judgment, as a supersedeas of execution, but does not destroy the judgment in so far as it can operate without the aid of an execution.

While there are cases to the contrary, this distinction is supported by the great weight of authority. In the Slaughterhouse Cases, 10 Wall. 273, 19 L. ed. 915, Mr. Justice Clifford, speaking for the court, said: "It is quite certain that neither an injunction, nor a decree dissolving an injunction, passed in a circuit court, is reversed or nullified by an appeal or writ of error before the cause is an ex parte order, granted by the circuit court judge at chambers, enjoining the sheriff from putting a purchaser of land sold by him into possession, is not suspended by an appeal therefrom.

Case Note. That an appeal from a final decree granting a perpetual injunction and the giving of a supersedeas bond will not have the effect of modifying or suspending the decree, so as to permit the doing of the act enjoined pending the appeal, is said, in The case of State v. Johnson, 13 Fla. 33, High on Injunctions, 4th ed. § 1698a. to be is, however, cited by High on Injunctions in the well-established doctrine, supporting § 1698, in support of the statement that, if such statement by a large number of cita- a supersedeas is granted upon an appeal tions, including most of those cited in from an order granting an interlocutory inSTATE EX REL. GIBSON V. SUPERIOR COURT. junction and appointing a receiver pendente The same rule is said, in § 1698, to apply in lite, it has the effect of suspending the the case of preliminary injunctions, the rea-order, where such an appeal is allowed under son given being that, if it were otherwise, there would be no material advantage in obtaining an injunction in any case, as it would be in defendant's power to avoid its effect by appealing.

In support of this statement the author cites State ex rel. Commercial Electric Light & P. Co. v. Stallcup, 15 Wash. 263, 46 Pac. 251, which is cited in STATE EX REL. GIBSON v. SUPERIOR COURT, and several other cases. State ex rel. Matthews v. Chase, 41 Ind. 356, states that an interlocutory order granting a temporary injunction against one partner continuing to sell the partnership goods is not suspended by an appeal therefrom. Green v. Griffin, 95 N. C. 50, holds that an appeal from an interlocutory order for an injunction against joining the walls of a store, which defendants were putting up, with plaintiff's walls, does not vacate such order.

Klinck v. Black, 14 S. C. 241, holds that

the practice of the state; and in Powell v. Florida Land & Improv. Co. 41 Fla. 494, 26 So. 700, citing this case with approval, it is held that, so long as an appeal with supersedeas from an order granting an injunction is pending, the power of the courts to enforce the injunction, or punish as contempts acts in violation of its terms, is suspended.

In 2 Spelling on Injunctions and Extraordinary Remedies, § 1141, it is also said that, as a general rule, a judgment granting, or refusing to dissolve, an injunction, or dissolving one already granted, is not affected by an appeal from it prior to reversal in the appellate court.

In § 1142, however, the statement is made that the authorities are not uniform on this point, and several cases in support thereof are cited, most of which relate to appeals from orders dissolving injunctions. One case, Osborne v. Williams, 40 N. J. Eq. 490. 4 Atl. 439, holds that an appeal from a final

heard in this court;" and it was held that ing the appeal." And in Knox County v. the same rule applied to writs of error from Harshman, 132 U. S. 14, 33 L. ed. 249, 10 state courts in equity proceedings. To the Sup. Ct. Rep. 8, it was said: "The general same effect is Hovey v. McDonald, 109 U. S. rule is well settled that an appeal from a 150, 27 L. ed. 888, Sup. Ct. Rep. 136. In decree granting, refusing, or dissolving an Leonard v. Ozark Land Co. 115 U. S. 465, 29 injunction does not disturb its operative efL. ed. 445, 6 Sup. Ct. Rep. 127, it was said: fect." In Central U. Teleph. Co. v. State, "The injunction ordered by the final decree 110 Ind. 203, 10 N. E. 922, 12 N. E. 136, the was not vacated by the appeal. Slaughter- rule is stated in the following language: house Cases, 10 Wall. 273, 297, 19 L. ed. 915, "The effect of a supersedeas is to restrain 922; Hovey v. McDonald, 109 U. S. 150, 161, the appellee from taking affirmative action 27 L. ed. 888, 891, 3 Sup. Ct. Rep. 136. It is to enforce his decree, but it does not authortrue that in some of the Slaughterhouse ize the appellant to do what the decree proCases the appeal was from a decree making hibits him from doing. The doctrine which perpetual a preliminary injunction which our decisions have long maintained is thus had been granted at an earlier stage of the stated in Nill v. Comparet, 16 Ind. 107, 79 case; but the fact of the preliminary injune- | Am. Dec. 411: 'Indeed, the only effect of tion had nothing to do with the decision, an appeal to a court of error, when perfectwhich was 'that neither an injunction, nor a decree dissolving an injunction, is reversed or nullified by an appeal or writ of error before the cause is heard in this court.' This doctrine, in the general language here stated, was distinctly reaffirmed in Hovey v. McDonald, and it clearly refers to the injunction contained in the decree appealed | from, without reference to whether that injunction was in perpetuation of a former order to the same effect, or was then for the first time granted. The injunction, therefore, which was granted by the final decree in this case, is in full force, notwithstand decree advising that injunctions shall issue restraining defendants from carrying on their trade in a particular manner suspends the operation of the writ ipso facto, unless the other party comes in and shows good cause why it should not be stayed.

Northern C. R. Co. v. Canton Co. 24 Md. 500, also holds that the operation and effect of an injunction against proceeding with a reference entirely cease until the decision on appeal, where an appeal is taken and bond given, under Md. Code, art. 5. § 23, providing that on giving such bond the appeal shall stay the operation of the order appealed from in the same manner as do appeals from final decrees.

And Gelston v. Sigmund. 27 Md. 345, holds that the taking of an appeal from an order granting an injunction, and the giving of an appeal bond, stay the injunction, and sus pend its operation pending the appeal.

The claim was made in STATE EX REL. GIB SON V. SUPERIOR COURT that there is a distinction between an injunction which merely restrains the commission of an act which defendant is about to commit, or attempting to commit, and one which restrains the continuance of an act he is performing at the time the order for injunction is issued; and that the order in the latter case may be superseded because the injunction in that case changes, instead of maintaining, the status quo. In support of the holding of the court that there is no distinction between these two classes of cases, as to the

ed, is to stay execution upon the judgment from which it is taken. In all other respects the judgment, until annulled or reversed, stands binding upon the parties as to every question directly decided.'”

In National Docks & N. J. Junction Connecting R. Co. v. Pennsylvania R. Co. 54 N. J. Eq. 167, 33 Atl. 936, it was said: "Moreover, I find no warrant for the insistment that the mere existence of an appeal suspends, or in any manner affects, the present inherent validity and force of the decree appealed from. The person in whose favor it is rendered is denied process to enforce right to a supersedeas, may be mentioned State ex rel. Matthews T. Chase. 41 Ind. 356, supra, in which the injunction was against the continuance of the sale of goods.

And Lindsay v. Clayton Dist. Court, 75 Iowa, 509, 39 N. W. 817. holds that the taking of an appeal from a decree for the abatement of a liquor nuisance and restraining the continued sale of liquor, and the filing of a supersedeas bond, suspend the abatement of the nuisance, but do not suspen·l the injunction of the sale of the liquor.

And in Genet v. Delaware & H. Canal Co. 113 N. Y. 472, 21 N. E. 390, cited in STATE EX REL, GIBSON V. SUPERIOR COURT, it is said that a judgment prohibiting defendant from using its structures on plaintiff's land in the mining of coal in the way in which it had been accustomed to use them for years, and from depositing culm on the surface, operates of its own force as a prohibition against continuing the act enjoined; and that an ap peal therefrom does not, of itself, relieve defendant from the duty of obeying the judgment. The court, in this case, sustains the power of the special term, which rendered the judgment, to suspend its operation after aflirmance in the general term. pending the appeal to the court of appeals.

But the court. in STATE EX REL. GIBSON V. SUPERIOR COURT, expressly stated that it did not decide that question, the only point decided being that the defendant was not entitled, as a matter of right, to supersede the injunction order.

Co. 98 Cal. 304, 33 Pac. 123; Foster v. Superior Court, 115 Cal. 279, 47 Pac. 58, and Mark v. Superior Court, 129 Cal. 1, 61 Pac. 436, the court, while adhering to its holding that a prohibitory injunction could not be superseded, says that the effect of a stay of proceedings is to leave the parties in the same situation with reference to the rights involved in the action as they were prior to the granting of the injunction. These cases make no mention of the contrary rulings, and it may be that the statement was made through inadvertence, as the question does not seem to have been involved in either of

that the cases first cited state the rule in accordance, not only with the great weight of authority, but with the better reason.

it, and that is all. Consequently, where the | in the cases of Dulin v. Pacific Wood & Coal decree is itself an injunction, that injunction is in force and must be obeyed, unless, to continue the status quo of the parties pending the determination of the appeal, this court, or the court of errors and appeals, shall order a suspension of its effect. And it is not necessary to issue a writ to bind the parties to the suit to obedience to such a decree. Being before the court, they are bound, at their peril, to take notice of the provisions of any decree rendered in due course upon the issues tendered." In State ex rel. Busch v. Dillon, 96 Mo. 56, 8 S. W. 781, where the effect of the statutory provision is that a perfected appeal shall stay exe-them. But, be this as it may, it seems to us cution and all further proceedings upon a judgment appealed from, it is said: "Our law regulating practice in injunction and appeals is essentially the same as that prevailing in the Federal courts and those of the other states; and the overwhelming weight of authority is that injunctions ordered on final hearing on the merits are not vacated by an appeal from that decree. A stay of proceedings, from its nature, operates only on orders and judgments commanding some act to be done, and does not reach injunctions." To the same effect are the cases of Gardner v. Gardner, 87 N. Y. 18; Genet v. Delaware & H. Canal Co. 113 N. Y. 475, 21 N. E. 390; Hawkins v. State, 126 Ind. 296, 26 N. E. 43; Sixth Ave. R. Co. v. Gilbert Elev. R. Co. 71 N. Y. 430; James v. Markham, 125 N. C. 145, 34 S. E. 241; Bullion, B. & C. Min. Co. v. Eureka Hill Min. Co. 5 Utah, 151, 13 Pac. 174.

In this state, while no case presenting the precise facts of this case has been determined, it seems to us that the question presented has been determined in principle. In State ex rel. Commercial Electric Light & P. Co. v. Stallcup, 15 Wash. 263, 46 Pac. 251, we held that a temporary injunction restraining and enjoining the defendant from stringing electric wires on the streets of the plaintiff city could not be superseded on an appeal therefrom. In State ex rel. Flaherty v. Superior Court, 35 Wash. 200, 77 Pac. 33, we held the same way with reference to a final order of injunction enjoining the appellant from fencing up and otherwise obstructing a roadway. In these cases the question presented differed from the question in the case before us, in that the injuncThe only cases we find supporting the re- tive orders restrained the commission of an lators' contention are from California. In act, while the one before us restrains the that state all the decisions lay down the continuance of an act. But according to all general rule that a mandatory injunction of the definitions, an injunction which recan be superseded by an appeal and super-strains the continuance of an act or a series sedeas bond, while a prohibitory injunction of acts is just as much a preventive or procannot; but they do not agree on the ques-hibitory injunction as is one which restrains tion whether it is the status quo at the time of the commencement of the action, or at the time of taking the appeal, that is maintained by the stay of execution when a stay is effected. In Merced Min. Co. v. Fremont, 7 Cal. 130, it is said that "a stay of proceedings, from its nature, only operates upon orders or judgments commanding some act to be done, and does not reach a case of injunction;" and, further, that "the stay of proceedings pending an appeal has the legitimate effect of keeping them in the condition in which they were when the stay of proceedings was granted; it operates so as to prevent any future change in the condition of the parties." This case was approved on both propositions in the cases of Dewey v. Superior Court, 81 Cal. 64, 22 Pac. 333, and in Schwarz v. Superior Court, 111 Cal. 106, 43 Pac. 580. On the other hand,

the commission of an act; and, this being so, neither can be superseded on an appeal.

It is thought, however, that the case of State ex rel. Byers v. Superior Court, 28 Wash. 408, 68 Pac. 865, lays down a different rule. But it will be seen on an examination of that case that the injunctive order there in consideration was a mandatory injunction, as it commanded the defendant to deliver to the appellant certain books of account, moneys, and other prop erty of which he was in possession, belonging to a corporation. While the court said that the effect of a stay of proceedings was to preserve the status quo of the parties, it is clear that it meant nothing more than that a mandatory injunction could be superseded. It may be that the court itself has inherent power to suspend the effect of a prohibitory injunction, when the purposes of

PPLICATION for a writ of mandamus

Ato compel defendant to comply with

the state statute requiring it to appoint the state auditor as its agent to receive service

Mount, Ch. J., and Rudkin, Crow, Hadley, of process. Writ awarded. and Dunbar, JJ., concur.

The facts are stated in the opinion.
Mr. Frank W. Nesbitt, for petitioner:
Matters which regulate the manner of serv-

WEST VIRGINIA SUPREME COURT OF ice of process are not contractual.

ST. MARY'S FRANCO-AMERICAN PE- Pearsall v. Great Northern R. Co. 161 U. S.

Messrs. Clarke W. May, Attorney General, Frank Lively, and Brown, Jackson, & Knight also for petitioner.

Messrs. Chilton, MacCorkle, & Chilton, and L. E. McWhorter, for respondent:

The law deprives the corporation of its liberty to contract, and to select its own attorneys and agents.

Crary, 123, 1 Fed. 471; Sparks v. National 782, 41 N. E. 740; Fleming v. West, 98 Masonic Acci. Asso. 73 Fed. 277; Osborne Ga. 778, 27 S. E. 157. v. Shawmut Ins. Co. 51 Vt. 278; Pringle v. Woolworth, 90 N. Y. 502; German Ins. Co. v. Hall, 1 Kan. App. 43, 41 Pac. 69; Farmer v. National Life Asso. 50 Fed. 829; Lafflin v. Travelers' Ins. Co. 121 N. Y. 713, 24 N. E. 934; National Surety Co. v. State Bank, 61 L. R. A. 394, 56 C. C. A. 657, 120 Fed. 593; Hartford F. Ins. Co. v. Owen, 30 Mich. 441; Hinckley v. Kettle River R. Co. 70 Minn. 105, 72 N. W. 835; Maysville & B. S. R. Co. v. Ball, 108 Ky. 241, 56 S. W. 188; Hazeltine v. Mississippi Valley F. Ins. Co. 55 Fed. 743; Rehm v. German Ins. & Sav. Inst. 125 Ind. 135, 25 N. E. 173; Westchester F. Ins. Co. v. Coverdale, 48 Kan. 446, 29 Pac. 682.

Defendant is a citizen of West Virginia, and therefore more properly subjected to the laws of this state than would be a foreign corporation.

Pinney v. Providence Loan & Invest. Co. 50 L. R. A. 586, note, 106 Wis. 396, 80 Am. St. Rep. 41, 82 N. W. 308; Hinckley v. Kettle River R. Co. 70 Minn. 105, 72 N. W. 835; Continental Nat. Bank v. Thurber, 74 Hun, 632, 26 N. Y. Supp. 956; Bickerdike v. Allen, 157 Ill. 95, 29 L. R. A.

Ex parte Schollenberger, 96 U. S. 369, 24 L. ed. 853, sustains the validity of a statute of Pennsylvania prohibiting any foreign insurance company from doing business within that state until it has filed with the insurance commissioner a written stipulation that legal process served on "the insurance commissioner, or the party designated by him, or the agent specified by said company to receive service of process for the said company, shall have the same effect as if served personally on the company within this state;" and providing that, if the company cease to maintain an agent so designated, process may be served on the insurance commissioner. The court held that the condition imposed by the statute is not an unreasonable one, and that, the defendant companies having agreed that they might be "found" in Pennsylvania for the purpose of the service of process, they were bound by service in accordance with the statute. "If the legislature of a state requires a foreign corporation to consent to be found within its territory, for the purpose of the service of process in a suit, as a condition to doing business in the state, and the corporation does so consent, the fact that it is found gives the jurisdiction notwithstanding the finding was procured by consent."

The validity of the foregoing Pennsylvania statute is recognized in a very recent case by the supreme court of Indiana. An Indiana insurance corporation was sued in the state of Pennsylvania, by service of process upon the insurance commissioners of the latter state, and judgment was rendered

Brannon, 14th Amendment, p. 263; Pinney v. Providence Loan & Invest. Co. 106 Wis. 396, 50 L. R. A. 577, 80 Am. St. Rep. 41, 82 N. W. 308; Fisher v. Traders' Mut. L. Ins. Co. 136 N. C. 217, 48 S. E. 667; Williams v. Fears, 179 U. S. 270, 45 L. ed. 186, 21 Sup. Ct. Rep. 128; State v. Goodwill, 33 W. Va. 179, 6 L. R. A. 621, 25 Am. St. Rep. 876, 10 S. E. 285; People v. Gillson, 109 N. Y. 389, 4 Am. St. Rep. 465, 17 N. E. 343; Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 757, 28 L. ed. 591, 4 Sup. Ct. Rep. 652; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Millett v. People, 117 Ill. 294, 57 Am. Rep. 869, 7 N. E. 631; Godcharles v. Wigeman. 113 Pa. 431, 6 Atl. 354; Ruhstrat v. People, 185 Ill. 133, 49 L. R. A. 181, 76 Am. St. against the corporation by default. In an action on such judgment in Indiana, it was held that the statute was not a denial of due process of law, the court saying: "It is well settled that, when a state has prescribed conditions upon which foreign corporations may do business within it, any such corporations thereafter doing business in the state will be presumed to have assented to such conditions." Old Wayne Mut. Life Asso. v. McDonough (Ind.) 73 N. E. 703. Citing Ex parte Schollenberger, supra ; Baltimore & O. R. Co. v. Harris, 12 Wall. 65, 20 L. ed. 354; Knapp, S. & Co. Co. v. National Mut. F. Ins. Co. 30 Fed. 607; Stewart v. Harmon, 98 Fed. 192; Ehrman v. Teutonia Ins. Co. 1 McCrary, 123, 1 Fed. 471; Berry v. Knights Templars' & M. Indemnity Co. 46 Fed. 439; Diamond Plate Glass Co. v. Minneapolis Mut. F. Ins. Co. 55 Fed. 27: Sparks v. National Masonic Acci. Asso. 100 Iowa, 458, 69 N. W. 678; Fred Miller Brewing Co. v. Council Bluffs Ins. Co. 95 Iowa, 31. 63 N. W. 565; Pringle v. Woolworth, 90 N. Y. 509; Franzen v. Zimmer, 90 Hun, 103, 35 N. Y. Supp. 614; Mutual F. Ins. Co. v. Hammond, 106 Ky. 386, 50 S. W. 545; Murfree. Foreign Corp., § 203; 6 Thomp. Corp., § 8027; Alderson, Judicial Writs & Processes, p. 207.

And a statute of Arkansas, in substantially the same language, which provides for service upon the auditor, or person designated by him, or agent specified by the company, has been held valid. And under such statute service upon the auditor is good personal service, although the written stipula