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.

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 re-mittitur in this case forthwith.

(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.