¶1(dissenting). I cannot agree with the majority opinion holding that taxpayers may not enjoin payment under an illegal or unauthorized contract if the court finds that the indebtedness is just and equitable and the parties acted in good faith.
¶2It .is well settled that taxpayers are entitled to maintain a suit to enjoin illegal action by public officers. Graves v. Jasper School Township; 2 S. D. 414, 50 N.W. 904; Weatherer v. Herron, 25 S. D. 208, 126 N.W. 244; Hoekman v. Iowa Civil Township, 28 S. D. 206, 132 N.W. 1004. Whether a contract for public work is to be entered into through private negotiations or only after competitive bidding is a matter of legislative policy and such requirement is uniformly construed as mandatory and nonobservance renders a contract void. Seim v. Ind. Dist. of Monroe, 70 S. D. 315, 17 N.W.2d 342. It is not a matter of failure to comply strictly with technical or incidental directions of a statute which would not invalidate the contract. The contract being void in its inception, it does not derive vitality from performance and acceptance of resulting benefits. There is a fundamental difference insofar as equitable considerations are concerned between this case and Bartron v. Codington County, 68 S. D. 309, 2 N.W.2d 337, 140 A.L.R. 550, wherein there was a denial of the right of recovery into the county treasury of money paid under an illegal contract. In Bechthold v. City of Wauwatosa, 228 Wis. 544, 277 N.W. 657, 280 N.W. 320, 323, discussing such distinction, the court concluded:
*466“Whether a court of equity will exercise its powers in cases where the money has been paid out is quite a different question than whether the court should exercise its powers to prevent payment. In the first case the court determines upon what consideration its equitable powers should be exercised. That is a judicial question. In the second' case the question is whether a valid mandate of the legislature shall be upheld.. That is a matter not committed to the discretion of the court.”
¶3Cases like Farmer v. City of St. Paul, 65 Minn. 176, 67 N.W. 990, 33 L.R.A. 199, holding that a court may refuse to enjoin an act when it seems more equitable to grant than to refuse an injunction, says an eminent authority, “are of rare occurrence, and must depend upon their own facts.” Pomeroy’s Equity Jurisprudence, 4th Ed., § 1776. It appears in that case that a taxpayer sought to enjoin payments to a private charitable corporation for the board of prisoners. The court held that the contract was only “technically illegal”. This result apparently was founded on the fact that the city was liable to pay for the board of prisoners at some proper place of confinement. The decision does not lend support to a doctrine that the matter of payment under a contract made in violation of mandatory provisions of statute is committed to the discretion of the court.
¶4The attendant circumstances present in Wood v. Bangs, 1 Dak. 179 (172), 46 N.W. 586, and Clark v. County of Beadle, 42 S. D. 146, 173 N.W. 743, are distinguishable and the holdings in those cases are not here applicable. Plaintiffs in both cases failed to pursue the statutory right of appeal from decisions of boards of county commissioners and consequently equitable action for injunctive relief would not lie. The dictum in the first case cited to the effect that a taxpayer for himself and others cannot bring suit to prevent illegal action by county officers cannot be justified on principle. A contrary rule since .that decision has been applied as above indicated.
¶5The threatened act complained of in the instant case will result in the expenditure of township funds raised by taxation and taxpayers have no other prompt remedy whereby they can protect themselves against the illegal contract. *467Defendants are township officers and have no claim against the township. If the contractor has any rights against the township, he will not be deprived of them by a judgment in this action. He is not here a party. The question whether the agreed price under the illegal contract is the reasonable value of the work is not here for consideration. For these reasons I think the judgment appealed should be reversed.