sioners are required to prepare a register "for each grade or class of positions in the classified service of the City and County of the persons whose general average standing upon examination for such grade or class is not less than the minimum fixed by the rules of the Commissioners, and who are otherwise eligible," and that "Such persons shall take rank upon the register as candidates in the order of their relative excellence, as determined by examination, without reference to priority of time of examination," the question submitted for our decision is whether the relative rank of candidates upon the register can be altered without an entirely new examination, wherein all the candidates upon the register receive the credit given on said examination and the veterans taking such examination are allowed three per cent in addition thereto.

Of course, it might be true that by the holding of a new examination the relative position of eligible candidates upon the register might be changed and that veterans so examined might lose sufficient credits upon the examination to offset the credit given to them as veterans. It is clear, however, that the Civil Service Commission, in giving the credit to veterans upon the eligible list on the register, has provided "for promotion in the classified service on the basis of ascertained merit and standing upon examination" within the meaning of the charter as amended, which provides a new method of ascertaining the merits of candidates, namely, by giving a credit of three per cent to veterans.

[Sac. No. 3396. In Bank.-January 5, 1923.]

THE PEOPLE, etc., Respondent, v. JIM JACKSON et al., Petitioners.

[1] APPEAL STAY OF EXECUTION-ABATEMENT OF NUISANCE-EXCEPTION-POWER OF LEGISLATURE.-The legislature has the authority to put any condition or restriction on a stay of execution, and the amendment of section 949 of the Code of Civil Procedure in 1921 excepting from a stay of execution by an appeal a judgment declaring a building to be a nuisance and directing the closing thereof for a period of time, is a proper exercise of such legislative power.

190 Cal.-17

[2] ID.-CODE AMENDMENT-ISSUANCE OF WRITS-POWER OF SUPREME COURT UNAFFECTED.-The amendment of section 949 of the Code of Civil Procedure excepting from a stay of execution by an appeal a judgment declaring a building to be a nuisance is not an impairment of the power of the supreme court given by section 4 of article VI of the constitution to issue all writs and process necessary to the exercise of its appellate jurisdiction, since the execution of a judgment does not deprive the court of its jurisdiction to determine the correctness of the judgment on appeal, and the court has authority under the constitution to issue a writ of supersedeas whenever it is essential to preserve the rights of the parties pending the appeal.

[3] ID.-EFFECT OF CODE AMENDMENTS.-The amendment of section 941 of the Code of Civil Procedure in 1921, which prior thereto provided for the giving of undertakings on appeal, did not have the effect of rendering section 949 of such code unintelligible, since the effect of the repeal of section 941b and the amendments of sections 940 and 941 was to make the filing of a notice with the clerk effective to take an appeal in all cases and to give to section 949 the meaning that the perfecting of an appeal without a bond is sufficient to stay execution of a judgment except when a special bond is required under sections 942, 943, 944 or 945, from which it follows that an appeall, with or without a bond, does not stay execution of a judgment in an action to have a building declared to be a nuisance and closed for a period of time.

[4] ID. SUPERSEDEAS

ISSUANCE OF WRIT.-A writ of supersedeas does not issue of right, but only when in the judgment of the court it is necessary to protect the rights of the parties on appeal, and it will not be granted where there has been an unreasonable delay in taking an appeal or where the appeal is merely for the purpose of delay.

[5] ID. STAY OF EXECUTION-ABATEMENT OF NUISANCE-ATTITUDE OF SUPREME COURT.-The legislature by the amendment of section 949 of the Code of Civil Procedure has indicated that there should be no stay of an action to abate a building as a nuisance, and the supreme court should not lend its aid to the continuance of such nuisance in the absence of some showing of merit in the appeal or of diligence in its prosecution.

APPLICATION for a Writ of Supersedeas. Denied.

The facts are stated in the opinion of the court.

George E. McCutchen and Ralph H. Lewis for Petitioners. Markham Johnston and Clifford A. Russell for Respondent.

LAWLOR, J.-This is a petition on behalf of Jim Jackson and Elizabeth Jackson for a writ of supersedeas directed to the district attorney, clerk and sheriff of Sacramento County to restrain the execution of a judgment rendered against petitioners by the superior court of that county. Respondent has filed a demurrer to the petition, without briefs or authorities, and no question of fact is raised.

The judgment was rendered in an action instituted by the District Attorney of Sacramento County under the "Red Light Abatement Law" (Stats. 1913, p. 20), and ordered that petitioners refrain from maintaining certain prescribed premises for purposes of lewdness, assignation or prostitution, directed that the occupants thereof be removed and that the building be closed for the period of one year. From that judgment petitioners have appealed. They now allege that, notwithstanding their appeal, a writ of execution will be issued to the sheriff by virtue of section 949 of the Code of Civil Procedure, hereinafter considered, directing him to "remove all furniture, fixtures, musical instruments and other movable property from the said premises and building and sell the same in the manner provided in said! judgment," and that the sheriff, unless restrained, will execute the judgment. It may be noted that it is not ordered by the judgment, as required by the statute, that the furniture, fixtures, musical instruments and other movable property be removed from the premises or sold. However, as the statute provides that the plaintiff's costs and the expenses of enforcing the judgment shall be paid out of the proceeds of such sale, it may be assumed such a sale will result from the enforcement of the judgment.

Prior to 1921 section 941 of the Code of Civil Procedure provided that "The undertaking on appeal must be in writing, and must be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all damages and costs which may be awarded against him on appeal, or on a dismissal thereof, not exceeding three hundred dollars; or that sum must be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal." Section 949, also amended in 1921, was as follows: "In cases not provided for in sections nine hundred and forty-two, nine hundred and fortythree, nine hundred and forty-four and nine hundred and

forty-five, the perfecting of an appeal by giving the undertaking or making the deposit mentioned in section nine hundred and forty-one, stays proceedings in the court below upon the judgment or order appealed from, except where it directs the sale of perishable property. . . .

In 1921 (Stats. 1921, p. 193) section 941 was so amended as virtually to amount to its repeal as it formerly read, the section as amended having no reference to undertakings on appeal. To section 949 was added the following clause: 'and except, also, where it adjudges a building or place to be a nuisance, and as a part of the judgment in the case orders and directs the closing of the building or place against its use for any purpose for any period of time." (Stats. 1921, p. 95.)

Petitioners contend this section is unconstitutional because it, in practical operation, destroys the right of appeal by making the judgment of the superior court final and that because of the amendment of section 941, providing for the giving of a bond on appeal, section 949 has become so uncertain as to be unenforceable.

[1] It was held in People v. Laine, 177 Cal. 742 [171 Pac. 941], a case similar to the one at bar but decided before the above amendment was added to section 949, that an appeal in such an action did not stay execution of that portion of the judgment prohibiting the maintenance of the premises for purposes of lewdness, under the rule that an appeal from a prohibitory injunction does not operate to stay its force. Those parts of the decree directing the removal of persons and property from the premises and the removal and sale of the furniture and fixtures were held to be mandatory and stayed by virtue of the appeal. (See Wolf v. Gall, 174 Cal. 140 [162 Pac. 115].) The effect of the amendment to section 949 is to except also from the stay of execution, by statutory amendment, the portion of such a decree directing the closing of the building against its use for a period of time. Therefore, the only question presented by petitioners' first point is the authority of the legislature to except mandatory injunctions from the statutory stay of execution provided by section 949, which incidentally involves the authority of the legislature to put any condition or restriction on a stay of execution. Such an act is an entirely proper exercise of the legislative power. In

Ex parte Queirolo, 119 Cal. 635 [51 Pac. 956], considering the effect of the taking of an appeal upon a judgment in a divorce action it was declared: "The effect of an appeal from the judgment, as suggested in Foster v. Superior Court, supra [115 Cal. 279, 47 Pac. 58], is purely a matter of statutory regulation, to be determined by a construction of the statute under which the appeal is taken, and by the terms of which, when clear and unambiguous, we are concluded."

[2] Petitioners have cited Haight v. Gay, 8 Cal. 297 [68 Am. Dec. 323], to the effect that "The appellate power of the Supreme Court is given by the fourth section of the sixth article of the Constitution, which expressly empowers this court to issue all writs and process necessary to the exercise of its appellate jurisdiction. The legislature, therefore, can pass no act impairing the exercise of this appellate power." We are also referred to other cases containing similar language. It is a sufficient answer to this proposition that the execution of a judgment does not deprive this court of its jurisdiction to determine the correctness of the judgment on appeal and that this court has authority under the constitution to issue a writ of supersedeas whenever it is essential to preserve the rights of the parties pending the appeal. The mere fact that the legislature provides that the taking of an appeal shall not itself stay the execution does not deprive this court of authority to issue a writ of supersedeas. The amendment to section 949 does not, therefore, take away appellants' constitutional right of appeal.

[3] Nor can the contention that since the amendment of section 941, section 949 has become unintelligible be sustained. Under the methods of appeal provided before the year 1921, if the appeal was taken under sections 940 and 941, it was necessary for the appellant to file a bond of three hundred dollars for costs in order to perfect the appeal. The appeal then operated to stay all proceedings under the judgment by reason of the provisions of section 949, unless an additional bond was required under sections 942, 943, 944 or 945. Under the alternative method of appeal provided by section 941b, whereby an appeal might be taken by merely filing a notice with the clerk, it was held that an appeal bond was unnecessary (Theisen v. Matthai, 165 Cal. 249 [131 Pac. 747]), and that proceedings