
    Conrad Appellant, v. O’Boyle.
    
      Appeals — Equity—Interlocutory decree — Decree sustaining demurrer.
    
    1. A decree sustaining a demurrer to a bill in equity without dismissing the bill, is interlocutory and no appeal properly lies from it, but if the plaintiff takes an appeal from such a decree the appellate court may take it as equivalent to a final decree.
    
      Equity — Municipal contract — Mandatory injunction — Taxpayers— Property owners — Construction of sewer'.
    
    2. A court of equity has no jurisdiction to grant, at the suit of taxpayers and abutting property owners, a mandatory injunction to command a borough to compel contractors to construct a sewer in accordance with the plans and specifications of their'contract with'the borough and'to compel' the contractors to construct the sewer in accordance with such' plans and specifications.
    3. Whenever the execution of a decree of specific performance will require the personal supervision and oversight of the court for a considerable length of time, the court will not make such decree but will leave the party to his remedy at law.
    4. Á bill in equity for á mandatory injunction to 'commahd a,b'or-‘ ough to compel municipal contractors to perform their contract" is fatally defective if it does not set out the contract and the ordinance authorizing the contract.
    Argued March 6, 1912.
    Appeal, No. .4, March T., 1911, by plaintiffs, from decree of C. P. Lackawanna Co., June T., 1910, No. 1, sustaining demurrer to bill in equity in case of A. L. Conrad et al. v. Patrick'O’Boyle and Martin O’Boyle,. doing business as O’Boyle Brothers, and the Borough of Dunmore.
    Before Rice, I*. J., Hendebson, Orlady, Head and Porter, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Newcomb, J., filed the following opinion:
    A firm of contractors and the borough of Dunmore are sued jointly. The plaintiffs, three in number, join in the bill as taxpayers, thus asserting a common interest in the subject-matter. The prayer of the bill is for mandatory injunctions: (1) Commanding the borough to see that the contractors live up to the specifications of a contract under which they are building a public sewer in the borough; (2) to compel the contractors to conform to- the specifications.
    The contract is alleged to have been made in pursuance of an ordinance creating a certain sewer district and providing for a system of sewers therein.
    It will be observed, therefore, that the relief prayed for is very unusual. It is the supervision, from day to day, of the construction of a public improvement that the court is asked to assume. This it will not do in the absence of some overshadowing public interest or something to warrant the appointment of a receiver. Even where the bill discloses a prima facie right in plaintiff, and an actionable injury, he will in such case be relegated to his remedy at law, though it may be inadequate. “The court will decree specific performance only when it can dispose of the matter by an order capable of being enforced at once,” etc.: 2 Beach, Mod. Eq. Jur., sec. 596. Whenever the execution of a decree of specific performance would require the personal supervision and oversight of the court for a considerable length of time, it will not make such decree, but will leave the party to his remedy at'law: Schmidt v. R. R. Co., 4 Am. & Eng. Dec. in Eq. 625, 667 (note); Dentzel v. Park Co., 7 Lacka. Jur. 213.
    ■ This rule, in my judgment, would be fatal to the present bill if it were otherwise free from objection. But it is not.
    We are asked to interfere between the borough and its contractor in a matter which has been expressly committed by statute to the corporate authorities of the borough. The legality of neither the ordinance nor contract is attacked. On the contrary, the validity of both is- affirmed by this proceeding. In so far, then, as the functions of the borough officials are discretionary it is unnecessary-to say we have no power to interfere, except for a clear abuse of authority. At its utmost that is all that is attempted to be set up here. It follows that to make out a case the plaintiffs must show such abuse by distinct averments.
    It is only alleged that the contractors are varying from the specifications in certain enumerated details; that the inspector appointed by the borough has disregarded plaintiffs’ objections; and thereby the contractors will save many hundred dollars for which' plaintiffs will get no reduction on their assessments.
    No copy of either the contract or the ordinance is set forth in the bill; but it does contain a copy of the general specifications. By clause 6 thereof it is made “The duty of the inspector to see that all materials used and work performed shall be strictly in accordance with the specifications; subject to such modifications as the engineer may direct,” etc.
    The term “engineer” is defined by clause 1 “to mean the engineer in charge of the sewers for the borough.”
    By clause 12 it is provided that no materials shall be used until examined and approved by the engineer “who shall have full power to condemn any work or material not in accordance with the specifications and to require the contractor to remove any work, or materials so condemned, and, at his own expense, to replace said work or materials to the satisfaction of the engineer; and the decision of the engineer shall be final as to the quality of the work and materials.”
    There are further provisions touching the supervisory powers of the engineer, but for present purposes these will suffice.
    At the least, they give rise to the presumption that so far as the work has been varied in detail, it has been done by direction of the engineer in the exercise of his authority under the provisions of the ordinance and the contract. It thus devolves upon the plaintiffs to overcome that presumption by suitable averment. Good pleading would re^ quire that both the ordinance and contract be set out in' the bill. No attempt is made to account for the absence of the ordinance. .As to. the contract it is only said that it is in possession of the borough; that plaintiffs have no access to it; and therefore cannot furnish a copy. This is insufficient. It fails to show any effort to get a copy. Regardless of the.light that might be thrown on the question by these instruments, enough appears to show that the case deals primarily with the exercise of the engineer’s express authority. Yet neither bad faith on his part nor fraudulent collusion with the contractor is alleged. The nearest approach to it is the somewhat vague and conjectural .assertion that plaintiffs are informed. and expect to prove that the contractors intend to continue the work without regard to the specifications for the purpose of saving expense to themselves “and that they will claim the full, amount due them under the .contract.” This is nothing to the purpose.
    It is matter- of.familiar knowledge that where parties to ^ucjh. contracts appoint an. engineer or other , supervisor with final authority in the premises, his action and decision are conclusive unless impeached for collusion or bad faith. Certainly no court of equity will take jurisdiction of an inquest to find out whether he intends to make proper reductions from the contract price where reductions may be warranted. That is the gist of the anticipated injury set up here, namely: that plaintiffs may have to pay more than the .contractors will be justly entitled to receive.
    Finally, whether in any possible view of the. case plaintiffs. ..have, any .standing as. taxpayers is, to say the very least,., an .open question. They have so described themselves by an amendment which they are allowed to add to paragraph 4 of their bill. But that adds nothing of value. It does not clear up the ambiguity on a very material point. Had the ordinance been exhibited there could have been no possible question about the manner of taxation involved. All. the information to be had on the subject is to be gathered from the fourth paragraph of the bill which says: “Plaintiffs among others are the owners of property abutting upon streets upon and under which the proposed sewer is to be constructed, and assessments have been made against them according to the terms of the ordinance.” The plain implication of this is that at least some part of the cost is to be raised by special assessment, for benefits. If we may accept what was freely stated by counsel at the argument, then it may be understood as meaning that the entire cost is raised in that way and no part by general taxation. That being so, it follows that plaintiffs have an adequate remedy at law by way of defense to a sci. fa. on the tax lien.
    True, the learned counsel refers to several cases where injunction bills have been sustained at the suit of an owner of property on the sole basis of special assessment. But they are all cases where the legality, either of an ordinance, a public contract, or the proceedings to assess, was the vital' point at issue. Equity has the undoubted power to enjoin a municipality against laying an unauthorized assessment or executing an unlawful contract. This case presents no such question.
    Our conclusion is that the bill shows no case either for the extraordinary specific relief asked for, or for any relief in equity whatever.
    The demurrers are sustained.
    
      Error assigned was decree sustaining the demurrers.
    
      A. A. Vosburg, for appellants.
    — There are many cases where an injunction will lie on behalf of property owners in matters of this kind. Injunction may be invoked to prevent abuse of municipal power or the exercise of it in an unreasonable manner to the irreparable injury of property: Wells v. People, 201 111. 435 (66 N. E. Repr. 210); Adams v. Shelbyville, 154 Ind. 467 (57 N. E. Repr. 114)-, Burget v. Greenfield, 120 Iowa, 432 (94 N. W. Repr. 933); State v. Holt, 163 Ind. 198 (71 N. E. Repr. 653); Cone v. Wold, 85 Minn, 302 (88 N, W. Repr. 984); Land, Log & Lumber Co. v. McIntyre, 100 Wis. 245 (75 N. W. Repr. 964).
    It is conceded by the learned court below in the opinion that it was sufficiently averred that there is an abuse of authority on the part of the borough authorities, then the court would be justified in interfering: State v. Holt, 163 Ind. 198 (71 N. E. Repr. 653); Wolf Chemical Co. v. Phila., 217 Pa. 215.
    The courts are extending the right of taxpayers more and more to enforce an affirmative cause of action in favor of a municipality, which the officers of the municipality neglect to prosecute: Knight v. Thompsonville, 74 111. App. 550; Zuelly v. Casper, 160 Ind. 455 (67 N. E. Repr. 103); Webster v. Douglas County, 102 Wis. 181 (77 N. W. Repr. 885; 78 N. W. Repr. 451); St. Croix County v. Webster, 111 Wis. 270 (87 N. W. Repr. 302).
    
      C. P. O’Malley, of Warren, Knapp & O’Malley, with him R. A. Zimmerman, for appellees.
    — No sufficient ground is set forth in the bill to justify a court of equity in granting the extraordinary relief prayed for. The whole matter is one expressly committed to the corporate authorities by statute and no facts are alleged in the bill sufficient to justify a court of equity in interfering. There exists an adequate remedy at law so that there is no ground for equity to take jurisdiction: Scranton Sewer, 213 Pa. 4; Erie v. Piece of Land, 10 Pa. Superior Ct. 381; Erie V. Butler, 120 Pa. 374.
    The bill is defective in that no copy of the contract is attached thereto, nor is there a sufficient allegation of facts justifying a failure to attach copy of the contract and have no access to the same: Erie v. Butler, 120 Pa. 374.
    A mere order sustaining a demurrer must be followed by a decree dismissing the bill before an appeal will lie: Barclay v. Spragins, 80 Ala. 357; Benevolent Assn. Paid Fire Dept. y. Farwell, 5 111. App. 240; Com. v. Louisville, etc., R. R., 29 S. W. Repr. 331; Ferguson v. Mason, 50 S. W. Repr. 15; Peru Plow & Wheel Co. v. Sandwich Enterprise Co., 77 111. App. 653; Livingston County Bldg. & Loan Assn. v. Keach, 213 111. 59 (72 N. E. Repr. 769); Bosworth v. Wilson, 57 W. Ya. 80 (49 S. E. Repr. 942); French v. Bellows Falls Sav. Inst., 67 111. App. 179; Kley v. Higgins,-59 N. Y. App. Div. 581 (69 N. Y. Supp. 826); De Armas v. U. S., 47 U. S. 103.
    October 14, 1912:
   Opinion by

Head, J.,

This appeal could with propriety be quashed. It comes from no final or definitive decree of the court below. To the bill filed by the plaintiffs the respondents demurred. The order entered in the court below, from which this appeal is taken, is “these demurrers are sustained.” The bill has never been dismissed. It is still lodged in the court below. Rule thirty-five of the equity rules reads as follows: “If, upon the hearing, any demurrer or plea shall be allowed, the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable.” It would seem absurd to say that after a court had dismissed a bill it could then properly make an order permitting the amendment of the dismissed bill. It is manifest therefore that the order complained of is not in contemplation of law of the same significance as a final decree dismissing the bill.

But the appellants have chosen to consider the order sustaining the demurrer as the equivalent of such final decree. They cannot complain if this court, in the consideration of their appeal, takes the same view of it. The learned judge below in his opinion filed sustaining The demurrer has set forth the reasons which in our judgment would have fully warranted him in entering a final decree dismissing the bill. Without any intention of making a bad precedent, all of the judges who heard this case are of the opinion that the present appeal is without merit and that the order of the court below appealed from should be affirmed.

Order affirmed.  