Emrick v. State Highway Commission

This appeal involves a judgment of the district court of Oklahoma county, entered on the 6th day of May, 1929, wherein the plaintiffs in error were plaintiffs, and the defendants in error were defendants. The trial court sustained a demurrer to the petition of plaintiffs in error and dismissed the same at the cost of the plaintiffs, and the plaintiffs have prosecuted this appeal from said order.

The plaintiffs sought to enjoin the defendants from constructing a certain highway in Lincoln county, designated as project No. 6, prior to the construction of project No. 4, designated in a resolution and proclamation calling an election to vote bonds in Lincoln county, Okla.

Since this appeal was filed, the defendants in error have filed their motion to dismiss upon the ground and for the reason that project No. 6 has been completed and that the issues involved in the case have become moot. The plaintiffs in error contend that there are certain issues involved in the case relative to the expending of the funds derived from the sale of the Lincoln county bonds which should be settled by the decision of this court.

Since this cause was briefed this court in Wentz v. Ingenthron, 146 Okla. 165, 294 P. 154, and in No. 21686, Lew Wentz v. Board of County Commissioners of Lincoln County, decided Dec. 23, 1930, 147 Okla. 173, 295 P. 599, has announced the rule as to how the funds raised by the issuing of bonds or by taxation for designated purposes must be used, so we do not deem it necessary to further discuss that issue in this case.

This court held in Town of Covington v. Coberly.,136 Okla. 20, 275 P. 1064, that:

"Abstract or hypothetical cases, disconnected from the granting of actual relief * * * will not be determined by this court." Citing Albright v. Erickson, 23 Okla. 544,102 P. 112.

To the same effect is the case of Wallace, County Treasurer, v. McClendon, 144 Okla. 39, 289 P. 354.

Hence, we do not feel that any further discussion of either of these issues is necessary in this action. We are therefore of the opinion that the question involved in this appeal has become moot. The appeal is therefore dismissed.

LESTER, C. J., CLARK, V. C. J., and RILEY, HEFNER, CULLISON, McNEILL, and KORNEGAY, JJ., concur.

ANDREWS, J., not participating.