(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 *609•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 *610will -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 re*611straini-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*612•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 *613of 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 *614based 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 *615on 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 *616•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 *617the 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.