178 Ind. 161 | Ind. | 1912
Appellant and others, resident freeholders of a street over which appellee city, a city of the fifth class, had jurisdiction, filed with its common council a petition for the improvement of the roadway with a certain one of the kinds of modern city pavements. Thereupon the common council proceeded regularly under the statute, §1 of the act of 1909 (Acts 1909 p. 412), which is amendatory of §107 of the cities and towns act of 1905 (Acts 1905 p. 219, §8710 Burns 1908), and upon the receipt of bids for different kinds of modern pavements, including that petitioned for, entered a preliminary order to improve the street with another kind than that petitioned for. Thereafter, within the time provided by the section of the act named, appellant and others, constituting a majority of the freeholders residing on that part of the street to be improved, filed with the common council their petition, in proper form, requesting that the improvement be made with the kind of pavement they had originally petitioned for, and for which bids, among others, had been advertised for and received. The common council took no action on this petition, but subsequently readvertised for bids, and let the contract to appellee Garvey, for a kind of pavement other than that so petitioned for, and entered into a contract with him for the improvement, in direct violation of the provisions of the section. Within ten days thereafter, and before the actual commencement of the work under the contract, appellant instituted this suit to declare the contract void and enjoin appellees from carrying it out, and to compel appellee city to accept the bid for the kind of
From an adverse judgment, appellant brings this appeal, which was filed in this court March 27,1912.
It appears, therefore, that the subject-matter of the action has ceased to exist, leaving nothing but an abstract question of law involved in the appeal. On a reversal, no benefit could accrue to appellant, for the contract which he asks to be declared void no longer exists, and as the proceeding for the improvement has been annulled, he could not in any event be awarded the relief asked by mandatory injunction compelling the council to accept the bid, and let the contract for the kind of pavement for which he and others petitioned.
The appeal is dismissed at the costs of appellees.
Note.—Reported in 98 N. E. 869. See, also, under (1) 3 Cyc. 188; (2) 2 Cyc. 533; (3) 11 Cyc. 210.