Mitchell Jacoby, Appellant, vs. John R. Shomaker, et al., Appellee, 26 Fla. 502

Raney, C. J.: The record shows that under the act of March 3, 1883,

Chapter 3416 of the Statutes, the County-Commissioners of Jackson county granted to the appellant a permit to sell intoxicating liquors, wines or beer in a specified election district in that county, he having presented to them a petition under the act purported to be signed by a majority of the registered voters of the district, and that he has obtained a license under the general revenue law as a liquor dealer, and is about to commence selling pursuant thereto.

The bill filed by the appellees assails the action of the County Commissioners in granting the permit, and consequently the license granted thereon, as illegal. The Judge of the First Circuit granted a temporary injunction, and from this order, Jacoby has appealed and applied to this Court for a supersedeas to the injunction.

The statute authorizing appeals from interlocutory orders in chancery provides that such appeals shall not operate as a supersedeas unless the Judge of the Circuit Court or a Justice of the Supreme Court shall on an inspection of the record think fit to order and direct a stay of proceedings, but that no appeal shall operate as a supersedeas except upon the conditions now prescribed by law in cases of appeals from final judgments and decrees.

Section 2, p. 167, McClellan’s Digest. In Williams vs. Hilton. 25 Fla.; S. C., 6 So. Rep., 452, where a motion was made to vacate a supersedeas which had been granted by a Justice of this Court, it was held that on such an application the Judge or Justice is not required to satisfy his mind on litigated questions, but to seek from an inspection of the record that there is an appeal, and that it is not frivolous, and that the state pf the? case as to its future course is such as to render a supersedeas proper. Counsel for appellant relying on Williams vs. Hilton urges that his appeal is not frivolous.

Two of the questions found upon an inspection of the record to be presented by -it, are the right of the complainant to invoke the aid of a court of chancery in the premises, and whether or not the above act of March 3, 1883, has been repealed by the Local Option, or Nineteeenth

Article of the Constitution of 1885. Counsel for appellees contends that no supersedeas should be granted unless the Judge or Court acting in the matter is satisfied that the Court below has erred, that a very clear case of wrong or injustice should appear from the record to justify the suspension of an injunction, and that to hold otherwise would be to overthrow the presumption that the judgment appealed from is correct. The rule laid down in Williams vs.

Hilton, a case involving the injunction of a sale of land under a decree of foreclosure, is correct for all cases of its nature or where the damage to result from the supersedeas is of a character that can be compensated in money; and were the case before us one of this character we should not hesitate in view of the above questions presented by it, to grant a supersedeas upon proper security being given for the indemnity of the appellees against any loss or damage to result from the supersedeas, for it cannot be said that the points of error suggested are frivolous, or in other words, are such as noj; to require argument to show their untenableness.

It is not contemplated that the Judge or Court when acting on an application for a supersedeas should go fully into the merits of the case; this would be giving to such applications the place of a final hearing. The p^sg before us is qnp whose character distinguishes it from the class of cases to which the rule-laid down in Williams vs. Hilton is applicable.

The complainant’s suit is from its nature virtually in behalf of the public or the people of the district in question, and to prevent a wrong and injury to the public of a character that, if the bill is advisedly brought, cannot be compensated in money or otherwise. It cannot be said that there can be' compensation for the damage which may result to a community from the establishment and continuance of a retail liquor business pending the supersedeas of an injunction against it.

On the other hand, however, if the injunction be found on final decision here to have been erroneously granted, the damage which may enure to the appellant from the injunction, is clearly one of a pecuniary character, and a bond with surety, which has been given here, is the proper and usual indemnity in such cases. The damage which the appellees and the rest of the public may sustain being one of the character indicated above, our opinion is that a supersedeas should not be granted unless the error of the decree is palpable.

If it was, we should not hesitate to grant the supersedeas, but the character of the case being such as it is, and the questions presented requiring investigation for their decision, the supersedeas must be denied, prnd ij: will be so ordered.