(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, *141the contractors (who are defendants in - the action) are still in possession of a part, or all, of the evidences of this indebtedness. Whether this is a legal indebtedness or not ought to be determined in .this action.
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.