
    CLARKE et al, Appellants, v. THE COUNTY OF BEADLE, et al, Respondents.
    (169 N. W. 23).
    (File No. 4316.
    Opinion filed Sept. 3, 1918.
    Rehearing granted November 4, 1918).
    1. Appeals — Dismissal of Appeal — Motion on Affidavits', ’ Testability Of.
    A motion to dismiss an appeal to the ’Supreme Court may be presented upon -affidavits; the Court not being confined to the record on appeal.
    2. Same — Dismissal of Appeal — Injunction—Executed Bridge Construction Contract — Appeal, Whether Involving Moot Question —Alternative Belief, Effect — Previous Decisions Distinguished, Modified., '
    Where, in a suit by taxpayers to enjoin county commissioners -from executing an alleged illegal contract with a -bridge company for -building certain bridges, a temporary restraining order was denied, the bridge company being thereafter made a defendant, and a trial upon merits resulting in judgment for defendants, from which judgment an appeal was taken without supersedeas bond to Supreme Court; and, after appellants’ brief filed, respondents moved for dismissal of appeal, upon a showing that the bridge company, pending proceedings below and in Supreme Court, had completed its contract and received payment from the county; held, that, it appearing that through no fault of plaintiff the situation -had arisen making it impossible to grant him the relief sought, he yet might be entitled to alternative relief in the action, or to seek other relief in another action; that by dismissing the appeal and allowing the judgment to stand, it would constitute a bar to alternative relief in the suit and become res judicata in another action based upon invalidity of the -contract; that should the contract he held ■ on appeal invalid, trial court might, under general prayer -for relief, grant taxpayers alternative relief in money damages; that upon said motion the merits of the appeal should not he considered, but Supreme Court will presume, for purposes of the motion, that appellants would succeed on merits of appeal; therefore the question involved in the appeal is not a moot question. Holter v. Wagoner 32 S. D. 137, modified.
    3. Same — Dismissal of Appeal — Moot Question, Changed Circumstances Presenting — Res Judicata, Effect re Dismissal.
    While appellate court should not ¡retain an appeal for mere purpose of deciding a moot question, and appeal should be dismissed whenever changed circumstances pending same leaves ¡but -a moot question undetermined; yet whenever the judgment if left unreversed will preclude the defeated party as to a fact vital to his rights, such as validity of a contract upon which they are based, there remains more than a moot question, even though changed conditions the relief originally sought cannot be granted upon reversal.
    4. Injunctions — County Bridge Contract, Injunction By Taxpayers— Voidness, Voidability of Contract, Effect R© Injunction.
    In a taxpayers’ suit to enjoin execution of a county’s contract with a bridge building company it is immaterial whether the contract is void, owing to failure to' comply with statutory provisions necessary to its validity, or whether it is absolutely void regardless of the statute.
    5. Appeals — Dismissal of Appeal — Enjoining Executed County Bridge Contract — Temporary Injunction, Immateriality Of, Re Dismissal of Appeal — Effect of Performance, Re Defendants.
    It is immaterial, upon motion to dismiss an appeal in a suit by taxpayers to enjoin defendant county and a bridge company from executing a bridge contract, whether a temporary injunction was or not granted; since defendants proceeded at their peril when suit was brought, and must have known that if injunction were finally granted, plaintiffs would be remanded to 'seek relief in money damages.
    6. Injunction — Restraining County Bridge Contract — Contract Violative of Public Policy — Allegations of Violations of Statutory Provisions, Effect re Relief.
    Even though a violation of some public right or principle of public policy were an essential basis for plaintiffs taxpayers’ right to relief by injunction against defendant county and a bridge company, (a point not conceded) yet, there being allegations of facts showing such violation, in view of the Bridge Law (Laws 1915, Ch. 106), which is intended for protection of public rights, motion to dismiss an appeal from the judgment in favor of defendants, after the contract had been executed pending proceedings below and on appeal, on ground that only a moot question is involved, will ¡be denied.
    
      Smith, J., concurring in the conclusion.
    McÓoy, J., dissenting.
    Appeal from 'Circuit Couirt, Beadle County. Hon. Arva F. Tayror, Judge.
    Action toy Richard W. Clarke, and Frank Jaebn, on behalf of ■themselves and other taxpayers,'.against the County of Beadle, and T. C. Young and others as County Oammissioners' of the County of Beadle, anld The Iowa Bridge 'Company, a 'corporation, to enjoin the construction of' certain bridges. From a judgment for defendants., and from an order denying a new trial, ¡plaintiffs, appeal. On motion to 'diilsmis'si appeal.
    Motion denied.
    
      A. W. Wilmarth, for Appellants.
    
      A. A. Chamberlain, .and A. K. Gardner, for Respondents.
    (2) To point two of the opinion, Respondents cite'd:
    In re Wilkins, 22 'S. D. 135; C. M. & St. P. Ry. v. Sioux Falls, 28 S. D. 471; Hiilter v,s. Wagoner, 32 S. D. 137; 32 S. D, 252-
   WHITING, P. J.

The county commissioners of Beadle county 'having entered! .into a contract with the Iowa Bridge 'Company for the building of certain bridges, plaintiffs, alleging the invalidity of such contract, .brought this action, on behalf of themselves and other taxpayers of su'ch county, to restrain the County and' it® officers from carrying out stock contract 'and making payments- 'thereunder, and asked for such other and further relief as to the court might seem- just and -equitable. A temporary- restraining order was denied. Afterwards the bridge company 'was made a party -defendant. The cause .was ithen tried' -upon its merits, and1 findings, conclusions, land judgment entered'in favor of defendants.. From such judgment this appeal was taken, but no supers-eide-as1 bond was furnished. After appellants’ brief upon appeal ihdd been filed, respondents! moved ia- -dtismiissal of the appeal, supporting -such' motion by affidavits -from which ;it appears- that the bridge company, pending the proceedings in the lower court and in’ this court, hias completed its Contract, and has .received payment from' the county for the work done. Respondents ¡contend! that there is left but a m'oot question, and that 'this court should not retain' this appeal for the purpose of passing upon such question.

Appellants- contend that this! motion cannot he presented ■upon 'affidavits, and that the court can only 'consider the record uipon ¡appeal. In .this, appellants are in error. Silvius v. Brunsvold, 32 S. D. 252, 142 N. W. 944.

Respondents rely upon the ruling, of this court in C., M. & St. P. Ry. Co. v. Sioux Falls, etc., 28 S. D. 471, 134 N. W. 46, and Holter v. Wagner, 32 S. D. 137, 142 N. W. 175. The 'decision, in the fnns't-mentiaméd case -is not in pditat. The appeal therein- was from' -an oind'er refusing a temporary injunction, which order could not (be pleaded as res judicata in any proceeding, brought seeking alter native, relief. It -is .true that in the latter ¡case the 'proposition hereinafter 'discussed was suggested, but no. authorities -were cited in support thereof, and we failed to give- -that consideration which it otherwise should- have received. We failed to note and consider that, though through: no fault of the plaintiff 'a situation 'had arisen making it impossible to grant him the relief sought, he yet -might be entitled to alternative relief in that action or to' ¡seek other relief in .another action, and further to note and ¡consider that, lb.y dismissing the appeal -and thus1 allowing the judgment of the lower .court to stand, we allowed -such! judgment to stand as a bar to> alternative relief -in that action and as res judicata in any other action- that ■might be brought based upon the alleged linvai-idity of the contract. We are Of the opinion that the majority opinion' in that case was erroneous.

An appellate- count should not retain an appeal for the mere purpose of deciding a purely moot question; and, whenever a change in. circumstances pending an -appeal 'its siucb that the -appeal does present but a moot question, suicih court should' dismiss same. However, both- reason -and authority support the proposition that ,whenever the judgment, ¡if left unreversed-, will preclude the party against whom -it is rendered as to .a fact vital to. his rights, such as! to the validity of a contract upon which: his rights -are based, it cannot properly be said that there is left before the appellate court but a mO-ot question, even though on account: (of changed conditions the relief originally sought by appellant cannot be -granted upon the reversal of such judgment. 2 R. C. 170; 4 C. J. 576.

It must be remembered that the change in circumstances upon which tills motion is based was not brought about through the acts or efforts of appellants' — they are not -in any wise responsible' for the fact that there-has been, -such change in ciricumistances' since áie 'commencement of the action.- If appellants-''Were entitled) to 'inj-uiiCt-i'onal relief, it was ¡because a right hiad been violated. 22 Cyc. 749, This! right was their right, as taxpayers, to have the .'contract entered into' in accordance -with, the requirements of tire statutes enaotddl for the taxpayers’ protection. The fact that such relief cannot now 'be granted in no manner justifies this, court in allowing an erroneous judgment to stand unreVersed',’ thus leaving the fact that appellants’ rights! had been violated adjudicated against them, and thus barred- of all alternative remedies -which' otherwise would! be -theirs. If we should hold the 'contract invalid, the trial court may then, under the general prayer flor relief, be able to' give to the taxpayers, through thesle appellants and in this action, alternative relief in the way of money -damages; or appellants, if successful here, might bring another action, as was done in McMillan v. Barber Asphalt Paving Co., 151 Wis. 48, 138 N. W. 94, Ann. Cas. 1914B, 54. In that case St was said:.

“The defendant, -after it was informed by the 'commencement of the -other action that its -contract was1 tainted with illegality, went on and performed the same -at its peril. * * * The -plaintiff is entitled to vindicate the rights- recognized- and established by the judgment Am the -action in which he ¡prevailed. We find nothing in the coudluct of the plaintiff which amounts to a waiver of his right to assert ¡the illegality of the contract.”

We would call attention to the facts 'disclosed- by the -opinion in- McMillan v. Paving Co. and in the “-other action” referred to in the 'above quotation, being the action reported on appeal in McMillan v. City, 139 Wis. 367, 120 N. W. 240. It has’been 'suggested that the facts here are to he 'distinguished from- those -disclosed' in the Wisconsin cases because in those oases- the -alleged' grounds of invalidity of the contract involved were fraud and -collusion. It certainly makes no difference in a taxpayer’s rights to an injunction whether the contract between the municipal corporation and' -the Contractor is void, as -claimed in this case, owing to' a failure to comply wAthi statutory provisions necessary to the validity of súdh -contract. Oertalihly one’s rights to an -injunction ¡based upon the absolute invalidity -of a contract ¡are las- great as are -his rights to an injunction bateed upon the Voidability of a -contract In McMillan v. City, it .will be found that a- taxpayer was- attempting to -restrain- .the City from -carrying out a contract entered into- with- a paving company. Upon the appeal 'it was held that ’the trial court errdd in refusing the Snj Unational relief. The paving company was not a party to that action. Thereafter, tfhe plaintiff in that action ¡brought the other action ¡to recover from the paving 'company the amount of a special improvement botad which' had1 been received by the paving company and by it assigned to a third party. The court held that, although the paving company was not a party to the first action, it was bound thereby 'because of the fact that its1 attorney, while ¡appearing ¡therein for the city, was. in reality appearing for the paving company. That question is not presented in the case before us, because the bridge company is made a party to the pending action. Ini the Wisconsin, cases it appears from the facts appearing in the second' action that, pending the appeal in the first action, the contract had been completed and the bonds turned over, just as it is ¡alleged has ibeen done in this case. In the case against the city there does noit appear to have been any motion to dismiss tire appeal upon tine ground that there Was but a moot question left; but, if such' motion bad been made, -it can readily be seen ¡that lit shlduld have been overruled for the reason that there was ¡left more than a moot question. That there ¡was -more than a adoot question left is -shown from the very fact of the -staccess off the plaintiff in the second1 action. If, .in the first of the Wisconsin .cases, tine appellate court had dismissed the appeal, thus leaving the judgment ¡of the trial court -unreversed', such judgment •wbuld'have stood as res judicata against McM-i-llan, and would have barred hi® recovery in the other action; and yet, as a matter of right, as found by tine .appellate court, although circumstances had arisen -s'o¡ that the relief to which 'he was entitled in the first action could not then be granted him, having Ibeen -entitled' to siu-ch relief, he wa-s entitled, in ¡lieu thereof, to alternative relief by way -of -damages. We have exactly the s-aime -situation here. Upon- this moittiiota we have no right to consider the merits of the appeal, but we are bound to ¡presume, for the purposes of -su-ch motion-, that, upon, the merits of the appeal, ¡appellants -would 'Succeed. To determine whether or nlot the question before -us, is but a moot question, let us ask What the situation would be if, upon the mler-its of this appeal, we should! find that the trial cou'rt erred in1 refusing the injunctions. If we should so hold-, than, ju-st -as in the -second Wisconsin case, these taxpayers would have a right -to seek, eMiler through an amendment of their complaint in- the -action nldw pending, or else through lan independent action, to recover from- the bridge company the difference between w'hat the county has paid it and the 'amount ■to wh'idh. it was equitably entitled, if anything.

It has been 'suggested that it would be,impossible to undo what the bridge company ¡has done. That is certainly true, and no one would contend that this or the trial court could now, 'by any equitable relief whatever, undo what has been done. But this court iat least can see to it that the taxpayers are not barred (now that they have been denied the equitable relief, and provided we hereafter find they were wrongfully denied such relief) from recovering such darngaes- as they may shdw themselves entitled to. Of course, if, upon the merits of the pending -appeal, we -shall decide that .the trial ■court was right, by such decision we will hold that the ‘appellants had no '.right to injunctional relief, and oiur adjudication will stand as a ¡bar to any future claims that they may make baseldi upon facts which would stand -adjudicated against them (by our 'sustaining the trial court. If we should determine that appellants were in the right and .were entitled to have received the injunctional relief which they sought, they cohld then amend their ple'adiings in this ■action or bring another action and seek to recover money damages, as was done in McMillan v. Paving Co. It will then be timie enough for the ••courts to determine whether or not the fact that the bridge is built land is of value to the .municipality and the people thereof ■can be -considered as a defense, counterclaim, or set-off to plaintiffs’ demands. That is a matter 'with which at this time this- court has no concern.

A case peculiarly analogous to the one before us is that of Green v. Okanogan County, 60 Wash. 309, 111 Pac. 226, 114 Pas. 457. In both cases all parties to the contract, including the county, -the county commissioners, and the other contracting parties, were made defendants. In both cases' the contract was attacked upon the ground that the 'commissioners had not complied with the statutory requirements. In both cases the-'trial court held against plaintiffs and entered judgment dismissing .the action. In both cases it appeared, from .affidavits filed subsequent td the perfecting of the appeal, that 'the contract had 'been executed. In both cases respondents sought a dismissal of the appeal on -the ground -that, the contract having been fully executed, nothing but a moot question remained1. In the Green. 'Case tire court held that the court should undo what had been done in so fax- as it could' be ixndione, but that if it could not be undone the defendaxxts should answer in damages fax* whatever they had .done that could not'he undone. The corxrt said:

“The respondents .moved to dismiss the appeal On the ground •that there has been a cessation of the controversy. It appears from, affidavits filed subseqxxent to the' pex-fection of the appeal -that the board of county coxxmissioneriS executed the contract after the dismissal of the action in the court below, and it is, contended that nlaw there is nothing upon which the injxxmction can operate, as the acts of the defendants sought to be eixjoined have been fully performed. But this contention mistakes the power of the court. It is true that ''when, pending am appeal 'from the judgment of the lidwer court, 'and without -any fault on the part of the respondent, an event occurs which renders it impossible -to enter a judgment in favor of the appellant which will give any effectual relief, tire court will not proceed to a formal judgment, but 'will dismiss the appeal, and it is held also that the same resixlt will follow if the in-tervexxixxig event is owing to some -voluntary-act of the applicant. Bxxt no such result follows merely because the respondent has changed the status of the subject-matter in litigation. So in this case, if it appears that the comtraot entered into was subject to ¡be enjoined because in violation of the statutes, the court may now inquire into' the subsequent acts of the respondents, and compel them to undo what they have wrongfully done in so far as it ‘is capable of undoing, and to answer in dlamages for anything that cannot be xxn- ‘ clone. This, principle was announced in the eaxdy case from- this .court of Hartson v. Dale, 9 Wash. 379, 37 Pac. 475. * * * The decision was .rested 'on the ground that It would be highly inequitable to allow any subsequent action of the respondent to have 'the effect of subjecting the appellant to the costs of a meritorious • appeal, while .the decision ought to have beexi rested! on the ground we have before 'indicated, namely, that the court had power to enter axi' effectxx'al ¡decree by compeling the parties toi undo' what -they had wrongfully clone, or .compel them to answer in damages therefor. * * * In Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. Ed. 293, the court used) this language: Tf a defendant, indeed, after notice of the fifing of ¡a bill ixi eqxxity for an -injunction' to restrain the building 'of' a house, or ‘ c'f a raili'oad, or of any other structure, persists in completing the building, .the -court nevertheless is not deprived of the authority, whenever an 'its opinion justice requires -it, to -deal -with- the rights of the parties ate they .stood -at the ‘commencement of the suit, and to -compel the defendant to undo -wh-at he has 'wrongfully don-e -since 'that time, -or to -answer in ■damages..’ See, also, Tucker v. Howard; 128 Mass. 361.; Pennsylvania Co. v. Bond, 99 Ill. App. 535; Tate v. Field, 36 N. J. Eq. 35, 37 Atl. 440. The fact that no .temporary injunction has been granted does not affect the kind or the extent of the remedy •to which the ¡plaintiff is entitled upon establishing- his- right at the hearing on the merits. Tucker v. Howard, supra.”

As ¡held! in the Green- ¡Cais-e, -it i-s immaterial, u-poo this- motion, whether 1a temporary injunctitti was granted,1 -oir not — in fact, it is immaterial -whether it was asked for. Respondents were put upon their notice when the action w-as brought; they proceeded at tlieir -peril. (Njo injunction; being granted1, tihey 'were at perfect liberty -to -go 'ahead and- perform the contract, knowing that, if the court finally ¡held that the injunction should) baVe been granted, •wllmt they have -done cannot land -will not be undlone, but that appellants would be remanded to seek relief in mo-ney 'damages. They proceeded with -the full knowledge that if they performed the -contract an-cli it should1 eventually be held inv-al-i-d, the proper parties would 'be l-iable to respond1 in damages.

It hag been ¡suggested that the case of Carr v. City of Montesano, 76 Wash. 380, 136 Pac. 363, is analogous to the -case nlo'w before us, and should be recognized as -controlling herein, -being later in date than the Green Case. An examination of the -Carr Case shows that there is- no 'similarity 'between the facts' therein and the facts in the -case before us. The ¡Carr 'Case was 'brought against the city, its .treasurer and .deputy treasurer, to restrain the paying of a warrant. The -warrant -was issued in payment of a ¡claim- that was oo-ncediedly valid, but the contention- ¡was that the warrant brought -the indebtedness, of the -city a-bo-ve the -constitutional limit. N-o -service w-as made- upon the city treasurer; the only -issue joined being with the city. The trial court held that the -city had no-t reached its constitutional limit o-f inidieb¡tediness, and ¡dismissed the action. Plaintiff appealed'. After -such appeal taken there was a showing made that the -warrant had been -paid, -and a motion was made to- -dismiss up-on- the ground- that the controversy had ceased. It 'dearly appeared that .there were no other outstanding warrants. The warrant wias paid by the cit)r treasurer, .who hadi -not been made a party to’' the action.. The .party to. whom the warrant was paid was not a party to the pending appeal, and ¡no question as to him was involved. Upton such facts, the court held that the question of the legality iof the warrant had1 become a moot question. In view of the fact that the bridge company is1 a party to. this, action, and that, unle'ss barred) by the judgment entered herein, appellants may have a right to. recover against such, bridge • company, as wias done under like circumstances1 ini the Wisconsin case, -it is clear that the Carr Case is not analogous to this, case.

It is also suggested that the still later case of Barber Asphalt Paving Co. v. Hamilton, 80 Wash. 51, 141 Pac. 199, is analogous1 to and controlling in this case. A study of the facts in the Hamilton 'Case will show that the decision therein wias based upon facts not to be found in the case now before us. In the Hamilton Calse plaintiff hadi bid for certain work to. be dione for the county of which defendants were commissioners; after it made its bid and was entitled to a contract — in fact it Sis claimed that a1 contract had been let to plaintiff — the county, through defendants, attempted to cancel plaintiff’s contract, to- reject all bids theretofore madie, to, readvertise for bidders, and to enter into a new .contract. The plaintiff brought this action to restrain defendants, as commissioners from entering into a contract with any .other and from cancelling the contract which they claimed1 hadi been entered into. with, plaintiff 'Company. The defendants pleaded] certain matter in the way of .defense which they claimed showed that the contract with, plaintiff was not binding upon them, and, by a second dr supplementary ans'wer pleaded that they had' rCadivertised for 'bids and had entered into ,a contract with a third' party who had entered! upon the performance of the work; and defendants further alleged that such, contract was then approximately .performed. On the final hearing in the 'trial Court it appeared that the 'check which accompanied plaintiff’s, bid had’ been returned to plaintiff and accepted by it, and the defendants moved in the trial court for a dismissal of the action for insufficiency of evidence and because the complaint did no't state a cause of action. Su'ch motion was granted1, and the plaintiff appealed. A motion to, dismiss the appeal was made upon the ground that the controversy had ceased; that the right to 'injunctive relief no. longer existed; that the questions presented were mido* questions, and upon other ground's. Two question® were considered by the appellate court: First, whether the right to injunctive relief had 'ceased; and, second, whether .the complaint — to which neither -the state nor the county -w¡as a party — stated a cause of 'action for damages.- Tire court held rightfully that all right 'to injunctive -relief badl ceased to exist, and that it 'was i-mpossiilb-le tc' undo what had been done, which could only be undone by the tearing- up of the work that had been performed by the second contractor, and. this .public policy would forbid. There was- thus left but the question -as. to whether, as against any party to such action, there would rest a right of action f'or damages. If not, -it was clear there 'was but a moot question. The court -calls specific attention to the fact that the only parties to the action were the board of commissioners; that there was no claim that, upon the remanding of the case, -damages could'be sioiughit against the county commissioners personally — “in fact the appellant disclaims the right to any relief against the commissioners personally”; and that -there 'wias no la-l-legatioinK such as' would show that the plaintiff had been damaged, and therefore had- any right of action ag-ain-st an-ybodly for damages., even iif 'the parties ¡against whom h.e might recover had been made parties' to 'the then, pending .action. The court call's attention to the necessity of either .the state or the county being a party defendant to an .action for .damages, and- to the further fact that the plaintiff did n'ot request any amendment or offer to amend its complaint so -as to .state facts .showing actual •damages o.r isio as' to ¡bring before the court either the state, “-which the plaintiff believed the proper party to respond in damages,” or the county, “which the [trial-] co-urt evidently believed the proper-party -to respond in damages.” The court calls -attention to ¡the fact that this failure tq allege -any damages or to seek to ¡make party to the action those who would be liable in .damages-, -if a'ny, “-clearly distinguish that -case from ¡the situlations presented' ini Green v. Okanogan County * * * and Graff v. Tacoma [61 Wash. 186, 112 Pac. 250].” The -court further calis- attention- to the if-act that plaintiff did' not ask the appellate -court to remand so- that the complaint coul-d' !be -am-ended. All 'the above shows that, under facte s-uc-h as we have before -us, -we have a -ca-se ¡coming absolutely under the rule announced in the -Green Case .and in no respect -controlled' by the Hamilton 'Ca-se.

Our ¡Colleague suggests that the facts, as allegad by plaintiffs, -involve no violation of public policy. -Even though .a violation of some ¡public right or principle of public policy were an essential basis for plaintiffs’ right to relief, a fact which we do not concede, yet there is not lacking allegations of facts showing siuch a violation. - Plaintiffs allege -numerous violations of those provisions cif th-e Bridge Law (chapter 106, Laws 1915) ¡which are intended for the protection lof public rights.

The motion to dismiss is denied.

SMITH, J., concurs in the conclusion.

MdCOY, J.

(dissenting). I am unable to concur in the conHuision reached iby my Associates in the foregoing opinion. Neither can I concur in the view that the 'decision in Holter v. Norbeck & Nicholson Co. et al. 'should be over-ruled). It appears -from the record that the commissioners, of Beadle county let ¡and1 entered into a contract with -tine I-oiwa Bridge 'Company to construct seven1 steel bridges in said county; that after the letting (of said contract, and before the beginning of this action, the bridge company purchased, had manufactured1, and ¡delivered ¡ait the place of ¡construction, the structural steel ¡and iron- portions of said ¡bridge material so Cut, shaped, and with hales ¡drilled therein for bolting together said particular bridges, for the purpose lof -constructing the same under and- 'by virtue of the terms of said contract. This suit was instituted at the ¡instance of ¡certain taxpayers: who were dissatisfied' -with the letting of the contract for the ¡construction' of said bridges. At the time this suit was commenced) an order to show -oau-se based on the allegations lof the complaint only was procured1 by plaintiffs, who thereby sought to obtain injunction, pending suit, restraining the respondents from paying o-ut any -money on said contract for the construction of said bridges-. Upon the ¡hearing -of said- order to show -cause the trial court by order denied- the motion and application for sludi injunction. No ¡appeal was ever 'taken from.this order. The complaint in this1 -case seeks no ¡other remedy than, injunction to enjoin and restrain the -cou-nty of Beadle -and its county commissioners from ¡paying to the Iowa Bridge .Company the -contract price for constructing said bridges bn- the sole alleged ground that -certain, statutory requirements were n'ot observed in the ¡letting of said .contract. No fraud" of any kind was- alleged in relation to the letting of said contract. No injunction was sought to prevent •the execution -of said contract or the construction of said bridges. On the trial the court made findings andi entered judgment dismissing plaintiffs’ complaint as being without merit. Appeal has been taken to this court from said! judgment without supersedeas or stay ■bond.

It appears from the record’ that at the time of 'the trial 75 peícent. of the construction of said’ bridges had1 been completed, and that since the rendition lof judgment tire entire work of constructing said bridges has been ful'ly completed, and that the county treasurer has fully paid all warrants dirawn by the county auditor on him in payment of said bridges so constructed and completed' under and by virtue of said 'contract. It also appears from the record that neither the county treasurer nor the county 'auditor are parties to this action. At no time ¡has' there ever been anything to restrain the bridge company from executing andi carrying out its contract or from constructing said bridges according to contract. At no time has there been anything to restrain the ’commissioners of Beadle county, or the auditor or treasurer, from issuing, drawing, or paying county warrants for the construction of said bridges. Under these circumstances I am of the view that the appeal should be dismissed on the ground that the remedial controversy, as made by the pleadings, between the parties to this suit has ceased to exist. I am of 'the view that the sole and only remedial controversy, as made by the pleadings, was whether or not plaintiffs, as taxpayers, were entitled to an injunction restraining the payment to ■the Iowa Bridge Company of the contract price for the construction of said bridges, and nothing more; and that, under the record as it now appears before this court, any judgment this court might now render would be ineffectual for any purpose, since the right to injunctive relief — the only relief sought and the only relief which would ever have been possible under any view of the pleadings — ■ has nozo ceased to exist. The italicized1 concluding clause1 of the -last preceding sentence .is quoted from, the case of Barber Paving Co. v. Hamilton, 80 Wash. 51, 141 Pac. 199, being a -case “on all fours” with the case at bar, in which the Supreme Court of Washington dismissed the .appeal on the ground that the .controversy -had ceased to exist, and distinguished the case from .that of Green v. Okanogan, citedi by Judge WHITING in the majority opinion.. As will -be observed, in- the Okanogan- Case the -plaintiffs' -sought to- enjoin the making of the contract before any -construction of the bridge bad been commenced, and the only thing done towards the construction of the bridge, at -the time the motion to .dismiss the appeal -was made, was- to sign the contract, but which- .contract -in no manner .had been ¡carried out and' no .part ¡of the bridge constructed; -while ¡in- the case at bar, and in the Barber Paving Co. Case, the injunction -was to restrain- the payment only of the contract ¡price, and it appeared ion the motion to -dismiss that -the ¡work of -construction- -under the contract hiaidl 'been largely performed at the time of the -trial, and wholly performed and ¡paid for at tibe time of .the motion to -dismiss. I -am ¡clearly of the view that -the ca-se of Green v. Okanogan County, and also the ¡case of McMillan v. Barber Asphalt Co., cited by Judge WHITING, have no- possible application to the -question ¡involved in 'the case at ¡bar. It will be -observed1 in the McMillan Case that ¡the contract w'as alleged to have been made as the result of fraud 'between, the contracting parties. Some of the members of the city council were -directly interested in the paving contract, and a part -of the relief sought in that ¡case wias to set -aside the entire ¡contract and- transaction ion the ground of fraud, an-d in which action the 'defendants- were alleged, and the ¡court so found/, to ¡be guilty of fraudulent 'wrongdoing, and who necessarily had notice and 'knowledge of their -own fraudulent acts. I have no -criticism to make of the -decision in that cas'e based upon the facts before that -court, as the court had the undoubted power t-o -compel the -undoing of what the ¡defendants toad- d-o-ne by virtue of their fraud' as disclosed by the record. This case at bar is dearly within the rule announced in Barber Asphalt Paving Co. v. Hamilton. Another very recent and instructive case from the Supreme ¡Court -of Washington, 'later than the Okanogan Case, is the case of Carr v. City of Montesano, 76 Wash. 380, 136 Pac. 363, being a -cas'e brought by a taxpayer to restrain the city from paying for certain street improvements, and being -a ¡case in principle precisely the same as the case at bar. In that case, as- in this, a motion was made to ¡dismiss the appeal on the ground! that after the trial ¡of the ¡case warrants were ¡drawn against the treasurer to pay the 'contract ¡price for such street ¡improvements, and the warrants hadi been paid. In that case ¡it was held that the city treasurer was not -a par'ty to the suit, ¡and there was no ¡injunction in force restraini-ng him from, the payment of such warrants, and: under such circumstances the court held that the appeal should he •dismissed1. In that case the court distinguished1 'between the case of Hartson v. Dale, 9 Wash. 379, 37 Pac. 475, on which the decision in the Okanogan County Case was -based. In disposing of Barber Asphalt Paving Co. v. Hamilton, the court, 'among other things, said:

“From the facts established by the affidavits above referred to it is -clear that the injunctive relief asked for cannot be granted. It is also clear -that nici mandatory injunction, placing the -parties in -statui quo by .compelling the commissioners to -unto what they have done, -can- issue. 'N|o court would! require the tearing up of the pavement, already practically completed at the time of hearing the appeal, in order that tire plaintiff might be permitted to proceed! with its) .-alleged contract and replace the work along plans not now approved by -the -county commissioners. A -soun-d public -policy would forbid it.”

I ;am of the view- that this court cannot, and would not under the record in -this case, require the tearing d-oiwn -of the bridges in question -and -put -in statu, -quo the parties as of the time when -this action was 'commenced in orden to be in a position to sustain an-injunction. Under our .system of remedial law as! provided for in this state in section 454, Code Civ. Proc., persons who desire Injunction against the construction -of public -improvements and -payment therefor haVe the remedy of applying for .an injunction, pending suit, and section 454 'provides that when a party -shall give immediate notice of appeal from an -order denying an injunction, he may, within three days .thereafter, serve.-an undertaking, etc., and thereby secure -the stay mentioned in section 453. This is the undertaking that should! have been given to protect the bridge company after ■the refusal of the trial Court to grant the injunction pending Suit. The trial' court might have granted the injunction in the first instance, without bond; but the appellant, after the order denying the temporary injunction was issued, was hound to -appeal and iput up a supersedeas stay bond ira order to stop the bridge company from completing the construction .andl receiving pay far said bridges. Tt is beside the mark to say that the .appellant -might have maintained a suit .for injunction, without the nacessiity of an injunction -pendente -lite, and thereby have obtained the same result; because, i-f no injunction pending suit had been applied for, and' if the con•struction of the 'bridges bad been completed and .paid for before the trial, the trial court would then have been as powerless to grant a permanent injunction as it would; ever at any time have been after the- thing sought to :be enjoined had been done. Were a suit commenced! seeking an injunction, without an injunction pendente lite, the defendant would not be required or obliged to cease construction of the public work after the service of the process and before trial, 'and at the time of the trial there might cease to exist any ■cause for preventive relief. If before the trial in the lower court the bridge had not been completed or paid for, where the finding and judgment were in favor of the contractor, even then such contractor might still have completed the construction and1 received his pay therefore, in the absence of a -supersedeas appeal' bond that would stay procedure and construction pending appeal, and whenever such completed! construction were made to appear 'before the court, where the only relief sought 'was preventive by means of injunction, the appeal should be dismissed c;n the ground; that the ■cause for such relief had ceased to exist.

Unless a dissatisfied taxpayer has been able to secure an injunction pending suit, or where he has been- ruled against on his application for such injunction, and has not availed himself of the provisions of sections 453 and 454, there would he no reason existing why a contractor should not be permitted to proceed in good faith and complete his contract and receive his compensation therefor. These previsions of the statute furnish the 'dissatisfied taxpayer with a remedy, and, unless he avails himself thereof, the construction of the improvement should not be interfered with. If dissatisfied1 taxpayers can so stop the construction of public improvements without injunctions, and without appeal bonds to protect their rights, no contractor would ever he safe in taking a contract to construct a public improvement, and the public under -.such: circumstances would always be at the mercy of a small dissatisfied minority which nearly always exists. Of course where there is a fraudulent contract, such as was shown in the McMillan Case, the same, len the ground and by the reason of fraud, should be set aside andl canceled and; the 'contractors under such circumstances would not be entitled to compensation by reason of their fraud; hut a case of that kind would be based upon an entirely different reason than that involved in a case where no fraud is alleged and wherein" no violation of public policy is. involved. Under the rule of the majority opinion, •contractors acting in good faith, -would 'be left in an abominable mess by being compelled- to: stop -work on public imprcvemnets or take chances on the result of the suit i-n cases where no fraud was alleged1 and wherein no injunction or stay bend for the protection of their rights 'was in existence. It seems to -me that the pre-visions of sections 453 and 454 were intended to meet and prevent just such a situation. Take the circumstances of the Holier 'Case as -an illustration. There a contract was let to construct 'certain artesian wells.. After construction had been commenced and the work ipartia-lly -completed, an injunction pending suit was issued1 which on hearing was vacated. No- appeal was taken from the order of vacation, -and no undertaking given to stay proceedings or protect the rights of -the contractors. The original suit was -subsequently tried out, and findings and judgment rendered in favor of the -contractors, -from -which an appeal w/ais taken without supersedeas bond. No legal restraint then- existing, the contractors completed the '-wells, and were paid- therefor. Thereafter motion to- dismiss the -appeal was granted by this court on the ground that the things sought to be enjoined had been fully done, -and that further action on the part -off the court would be idle and of no avail. In- that case, as in this, the complaint -sought no other than injunctive relief. No fraud was alleged or claimed, and no cause of action for damages alleged. The facts alleged warranted no other alternative' relief. The contract was one the parties had a right to make. Under the circumstances1 of the Holier Case, as well as those in this case, it ought not to be justly said that the contractors -voluntarily completed' the construction of the public improvements where -no injunction or other -stay prevented them from so dloing. The -delay -necessarily incident to a trial through the courts would have been- ruinous and highly 'damaging in view of the fact that such 'contractors necessarily employ -many laborers and much machinery in such -work, and to permit, under such circumstances, or 'by a rule of law, that which would' necessarily result -in the holding up of such construction, and placing the contractor in s'ucli -a dire predicament, would -be unreasonable and unjust. Under s-uch circumstances- 'contractors should not be held to the voluntary act rule announced in the Okanogan Case, which the Washington courts .have re-fused to follow in subsequent -cases based on facts precisely the same as' those existing in the case at bar and da the Holter Case.

The decisions' in these eases 'dismissing appeals, where the thing sought tci (be enjoined had ¡been accomplished, are biased om the rule and reason 'that if, pending an ¡appeal, an event occurs which makes a determination of the appeal' unnecessary, or renders it clearly impossible for the appellate court to grant the relief 'under the pleadings and record, the appeal will be dismissed. 4 C. J. 584, and note citing Holter v. Norbeck & N. Co., Barber Asphalt Paving Co. v. Hamilton, and Carr v. Montesano, supra, as sustaining the text. This general- rule is based 'on the elementary reason that a court cannot restrain the removal of a house ¡after the house has been removed. In this case it must at all 'times be remembered and Observed that the appellant sought only preventive relief by means 'of an> injunction. In the Barber Paving Co. v. Hamilton and the Carr v. Montesano Cases, the voluntary acts- of the contractors in completing the work, and the voluntary act of payment therefor ‘by the officers oif the municipalities, were not considered, under the circumstances of those eases, as voluntary acts that would warrant the denial of the motion to dismiss the appeals under the rule announced' in the Okanogan Case.

The circumstances before 'the court on the motion to dismiss ’the appeals in these subsequent Washington cases in principle are precisely the same, as the facts or grounds for dismissal •of the appeal in this .case. Under the facts and record1 in the Barber Co. v. Hamilton Case, the decision was right ¡and in accordance with 'the general rule application to the facts of that case. No fraud was alleged or eilaimied', no cause of ¡action floor damages, .and" no question of public policy involved. There might be cases where the record indicated that ¡the judgment of dismissal of the appeal might preclude other remedial rights, where such rights appear to have .been involved in the case; but the 'record in this ease shows that 'no such father remedial rights exist, under the issues raised) by the pleadings in ¡this case. The only relief sought by ¡appellant under' the pleadings was injunctive and: preventive. 'If other and more -comprehensive' relief had been sought and) facts 'had been alleged warranting damages, or a canceOation of the contract on the ground: of fraud, or /other alternative relief, or haidi sought the -restraining loif the construction of the bridges upon the ground of fraud or other illegality, we would then 'have ;a very different case before us. This very proposition is well oon-sidered in. Barber Asphalt Co. v. Hamilton. The pleadings in this' case will be searched in vain- for the -statement of -any 'fact which would authorize any other relief than that of preventive injunction-. The -order refusing to grant the injunction pending suit in this case was- an appealab-le order. Section 462, Code Civ. Proc. The issues raised on- the hearing of this order were -as1 broad and -comprehensive as -could have -been the issues on the -trial of th-e merits, as the application for the injunction pendente lite was based -solely on the allegations of the complaint, -and' being the samie complaint used -on the trial and- now 'before us on this appeal. Intermediate court orders fro-m which -an appeal -may be tafeen, i'f not appealed1 fro-m, become -conclusive and1 res judicata -as to all the issues raised by the moving papers on whi-ch 'th-e order was based!. Herman -on Bs-top-, and Res Judi-cata, § 472. The order denying the injunction in this c-as-e- 'became icnn-clusive as against the appellants- on- 'all questions involved therein-, when they failed to appeal therefrom.

So far as appears from the record there is no question involved on this appeal other th-an -that concluded by the failure to appeal-from the -order refusing -the injunction. If th-e Halter Case i-s to be overruled!, so also must be the case of C., M. & St. P. Ry. Co. v. Sioux Falls, 28 S. D. 471, 134 N. W. 46, as both, cases are based on the sam-e principle with the sam-e basic facts-. But the majority opinion s'eeks to distinguish between the Sioux Palls and the Holter Cases, and.- as a -distinguishing feature -s-ays-:

“The -appeal therein was from an -order -refusing a -temporary -injunction, 'which -order cou-l-d- not be ¡pleaded- as res judicata in- any proceeding brought -seeking alternative -relief,.”

In that -case, where the a.p-peal was 'from- -the order refusing a temporary injunction, this court properly dismissed the- -appeal because no supersedeas bond under said: section- 454 h-ad been given, and where the thing sought to be enj-oined had been done and accomplished -at the time of the motion t-0 -dismiss the ap-p-eal. As I view this proposition, the reasons for dismissing the appeal in -this case -are much -stronger than in the 'S-ioux Palls Case because in' this case no -appeal was' taken- -at all from- the -order refusing to -grant •the injunction, nor anything done to prevent the 'bridge company from going on and -completing its contract. In this case the appellant wholly 'abandoned his application- for injunctive -relief. In the Sioux Falls Case the appellant, evidently knowing that it must appeal from an order refusing" temporary injunction, failed to- give the required bond -to stay the construction of the work. The taking -of the appeal- in the Sioux Falls 'Case, if such appeal' had been made effective by a proper stay bond, wfciuld certainly have rendered the issues involved in the order appealed from immune against the claim of res judicata in the appellate court on that appeal ; but as no proper stay bond wias given that would stop the completion of the work, and' it having 'been sho'-wn that in the meantime the work .bad been completed', the appeal was properly -dismissed. Here in this case and in the ITolter Case, where no appeal at all was taken that would prevent the issues involved in the order refusing to grant an injunction from becoming final and res judicata, a different rule is to be applied', because the sarnie issues on the same complaint were tried over again at a later dal e * If, after the second trial of the issues on this same complaint, an appeal bad been -taken, -with proper stay bond, and by reason of such- stay the bridges were not yet completed, this motion to dismiss should be denied; but where no proper stay bond was given, and the work has been -completed, the same as in the Sioux Falls Case, this case then is still in exactly the same legal situation -as that case. There is no possible distinction between the principle involved in- the Sioux Falls Case and the -case present. It -is a strange logic which applies a different rule ini this case. The distinctions between the Sioux Fall's Case and the Holter 'Case are wholly without any legal differences. In the Sioux Falls Case no Other relief was sought than- injunctive. No alternative relief was sought other than injunctive by the appellant in this case. No- fraud was alleged, -no •claim for damages made. The injection into this case of the questions and issues of fraud, damages, and alternative relief ar-e mythical imaginations, as no facts are alleged pertaining to "any such issues. Causes on appeal should not ¡be disposed' of on imaginary issues not presented by the record.

In the Barber Asphalt Co. v. Hamilton Case the Supreme Court of Washington refused to consider the question of damages because not an issue framed by the pleadings in -that case. I aite the rule announced in this' case particularly for the reason that the majority opinion is based upon and seeks to apply the rule of the Okanogan County Case to the facts of the case at bar; but I am of the opinion -that careful judicial 'consideration of the Washington cases will demonstrate that the instant case now before us is clearly within the rule and the facts of Barber Asphalt Co. v. Hamilton, and that the Okanogan Case has no application ¡whatever to the facts of this case. It was so held in the Barber Asphalt Co. Case. As stated in some of these Washington opinions, each -and every motion to dismiss an appeal must be based upon the facts and circumstances and the record peculiar to each particular case. It will serve no'useful purpose to cite the very numerous decisions from almost every jurisdiction in the land sustaining the rule in Barber Asphalt Co. v. Hamilton, which -is to the effect that, where the relief sought is purely preventive in its nature, and where it appears that the thing sought to be prevented has occurred, and has become a thing of the. past, the reason for such relief has ceased to exist, and therefore becomes a moot question.

For all the reasons heretofore cited, I am of the opinion that the appeal in this case should be dismissed.  