| S.D. | Jun 24, 1913
Lead Opinion
This action was instituted to enjoin the construction of certain artesian wells under a certain contract made
No immediate notice of appeal and undertaking, as provided for by section 454, Code Civ. Proc., to continue in force said temporary injunction, was ever given, and plaintiff appealed without supersedeas undertaking. It further appears that after the vacation of said temporary restraining order the said Norbeck & Nicholson Company proceeded with the construction of said wells, and fully and completely constructed the same, and that the said bonds had been issued and said 'indebtedness incurred in satisfaction and settlement of said contract for the construction of said wells. Motion is now made to dismiss said appeal on the ground that, inasmuch as all the matters and things sought to be restrained and enjoined 'by this action have been done and accomplished, any further action on the part of the court, or that could be accomplished by said appeal, would be futile and of no. avail. AVe are of the opinion that the motion is well grounded, and that the appeal should be dismissed. Appellant contends, that the court should retain the appeal and consider and determine the question of the lawfulness of the procedure in relation to the letting of said contract, and the incurrence of said indebtedness; but we are of the opinion that such procedure and determination on the part of this court would be of no avail and an .idle act so far as the purpose of this action are concerned. What effect it might otherwise have is wholly immaterial. The lawfulness or unlawfulness of such procedure was only material for the purpose of and as a basis for the remedy by’injunction. When the
The motion to dismiss appeal is granted, and the judgment and order appealed. from affirmed.
Dissenting Opinion
(dissenting). I do not agree with the conclusions arrived at by Justice McCOY in this case, nor with the reasons upon which the conclusion is based. The action was brought for the purpose of testing the regularity of the proceedings leading up to, and the legality of, a contract entered into by Grouse township, in Nyman county, for the construction and ' equipment of a number of artesian wells. It is claimed by the plaintiff and appellant that the statutory proceedings necessary to be had by the 'board of supervisors were not sufficient to give the board jurisdiction to enter into the said contract. Whether or not these proceeding's were sufficient and the contract legal is the sole matter at issue 'in the case. If the proceedings were not such as to give the board jurisdiction to enter into the contract, then the contract was void; and, as a result of a determination to that effect, an injunction should have issued as a matter of law. The fact that the plaintiff failed to take an immediate appeal and file a supersedeas bond, as he could have done under section 454, Code Civ. Proc., is wholly immaterial, so far as the final determination of the question- is concerned. The fact that the defendants Norbeck & Nicholson Company proceeded with the performance of the work provided for under the terms of the contract does not, in the least, change the status of the parties, so far as their legal rights are concerned. If it were determined on the trial of the case that the contract was, in effect, illegal, then the town board would be without authority to pay for doing -the work ; and, while the court could not enjoin doing the work after the same had been performed, a decree to the effect that the contract ’ was illegal would have entitled the plaintiff to a decree perpetually enjoining the 'town board from paying the contract price. It appears, from the affidavits on file in support of the motion to dismiss the appeal, that, while the board has accepted the work done -under the contract' and issued certain bonds in payment thereof,
This case 'is without' any analogy whatever to the case of C., M. & St. P. Ry. Co. v. Commissioners of Sioux Falls, 28 S. D. 471, 134 N. W. 46. In that case no temporary injunction had ever been issued. An application for one was made and denied, and the appeal was taken from the order denying this application. The appellant could not, in that case, by taking an immediate appeal and putting up a supersedeas bond, have kept the injunction in force and stayed the performance of the contract, because no injunction had ever been issued.
’ In this case, the legality of the contract did not depend upon the granting, or refusing to grant, of a temporary injunction; but the granting of the injunction, either temporary or permanent, depended upon the legality of the contract, and that could not be determined until the final determination of the action, and that question is the issue on this appeal.