[En Banc. Supreme Court October 16, 1947.]
ORDER ON MOTION TO DISMISS APPEAL AND
WITHDRAW EN BANC OPINION
A petition for a rehearing En Banc was granted in this case, and while the matter was thus pending, the parties stipulated to dismiss the appeal and joined in moving the court to withdraw its En Banc opinion herein filed June 7, 1947.
The motion to dismiss the appeal is granted; the motion to withdraw the En Banc opinion herein is denied. This ruling is based on In re Brown, 6 Wn. (2d) 215, 101 P. (2d) 1003, 107 P. (2d) 1104.
Since nothing remains in this court upon which a judgment can operate, the En Banc opinion hereinbefore referred to is not authoritative. This present order will be published in the bound volume of our reports immediately following the En Banc opinion previously rendered.
No costs will be recovered in this court by either party. Dated this 16th day of October, 1947.
By the Court:
JOSEPH A. MALLERY
Chief Justice
MILLARD, J. (dissenting) - I dissent. The Brown case is not in point. The petition for rehearing was pending at the time the motion to dismiss was granted. Both motions in the case at bar should be granted. As we granted petition for rehearing, the cause is before us the same as an original hearing in which no opinion has been filed.
SIMPSON, J. (dissenting) - The Brown case is not in point because of the different factual situation. The supervisor rejected the claim of appellant, as did the joint board on
June 1947] WITHDRAW EN BANC OPINION 933
27 Wn.2d 932
rehearing. The cause was appealed to the superior court, where the department's decision was reversed. The department then appealed to this court. This court, after two hearings, in an En Banc opinion reversed the superior court. Now the department moves to dismiss the appeal. The result will be that the judgment of the superior court must be enforced, and the claim paid. The effect will be that the rule laid down in the superior court becomes the law in this state, in so far as the actions of the department are concerned. Why should the department be allowed to pay a claim which the supreme court of this state has held to be improper?
ROBINSON, J., concurs with SIMPSON, J.