(dissenting). I have no dissent to enter as to most of the principles of law announced in the majority opinion. The due protection of property rights of citizens of cities from the ill-considered, careless, or corrupt action of city councils requires that statutes granting them powers in matters relating to municipal, improvements for which property may be assessed shall be construed with at least reasonable strictness. However, it is well settled that courts will not hold to as strict a construction in actions commenced after the work has been done, as in those by which it is sought to enjoin the officials or others before work has been performed in the execution of the con*148tract. It is elementary that a complaint seeking to enjoin public officials from the performance of official acts must state facts showing affirmatively that the plaintiff is entitled to the relief demanded. It is equally elementary that, if the complaint does not show affirmatively the right to such relief, it is demurrable. In the case at bar it is clear to me that the complaint wholly fails to show the plaintiff entitled to the relief demanded, but that if it does show him entitled to any of the relief demanded, it is only a trifling part of the subject-matter of the controversy.
It appears, from the complaint, that a contract was entered into for the construction of a system of sewers for the city of LalVIoure, and that the city was districted for that purpose. The contractor proceeded with the work, and, in accordance with the terms of the contract, was from time to time paid by warrant an amount equaling 80 or 90 per cent of the contract price, and the warrants against which this proceeding is directed are for the balance claimed to be due him on the whole system. The complaint utterly fails to show that the property of the plaintiff which is claimed to be affected or liable to a special assessment is located within any district in which the sewer, as constructed, failed to meet the approval of the city engii-eer, also fails to show that the warrants in question were drawn for the work which he condemned. Nor all that appears in the complaint, they may have been drawn for that part of the sewer system which was approved. If drawn in payment of the disapproved part of the sewer system, and that portion was in another district than that in which the property of the plaintiff is situated, he has no cause of action. It would not effect his property, hence I conclude that the complaint fails to state a cause of action in behalf of the plaintiff. Of course if the complaint showed the whole city to have been included in one distinct, a different question would arise, but it is clear that the complaint shows neither that his property is to be assessed to pay for that part of the sewer disapproved, nor that the warrants against which the complaint is directed were drawn for the condemned portion of the sewer system. The allegation that his property will be affected is a mere conclusion of law, unsupported by facts pleaded.
However, if in this respect the complaint is sufficient, it is insufficient and fails to state a cause of action as to the main part of the *149warrants in -question, and I think the court, even if sustaining the complaint technically because showing a cause of action as to $150, or any portion of the warrants, should announce the law regarding the really important part of the controversy. The sole ground on which the injunction is sought is that a minor portion of the system, as constructed, did not meet with the approval of the supervising engineer. Had he declined to approve it, and stopped there, this contention might be sustained, but he specifies his reason for withholding his approval, and the complaint must state facts bringing the case within the reason specified. The authorities cited in the majority opinion allowed that his certificate of approval is not necessary when it is shown that his action, is arbitrary, fraudulent, or unreasonable. It is plain to me that the reason given for withholding his approval in the case at bar is wholly arbitrary, and one not contemplated by the contract. The contract entered into between the contractor and the city of LaMoure is made a part of the complaint, and it requires the work to be done and the sewer constructed in accordance with certain plans and specifications, also made a part of the complaint, as are the various reports of the engineer disapproving a portion of the work and giving reasons therefor, and the reason as applicable to practically all the work we are considering, comes squarely within the exceptions referred to by the authorities. Neither the contract nor the plans and specifications anywhere require the work to meet the light test, or to be construed so a light can be detected from one manhole to another, and the failure of a. portion of the sewer to pass this test is the only reason given for withholding his approval by the engineer. His reports show that water flows: freely through that part of the line disapproved, and that the fall is, about 1 foot per hundred. He does not claim in his reports that the contract requires the work to pass such a test, but refers to the work of one? Ogden as authority, holding that sewers ought to conform to that test.. It is not contended that the materials differed from those specified int the contract, or that the work does not conform to the same and the plans and specifications, but that for about 2,143 feet of 10-inch pipe a light cannot be seen because of crooks in the line. For all that appears by the allegations of the complaint, the line may have turned] several corners in this distance. If any inference can be drawn, it is: that no such test was contemplated, for the reason that the bid included! *150a price for lamp holes, but the plans and specifications nowhere call for any. As far as shown by the complaint, the sewer constructed in this respect in accordance with the terms of the contract, and the reason for withholding his approval by the engineer, as plainly given, is wholly arbitrary, as relating to this contract.- It may be a proper test to apply to sewers when called for by the contract, but it is not directed to the character of the workmanship or the quality of the material, but goes wholly to the plan of construction. This plan of construction was adopted by the city before the contract was let, and the contract, as I have shown, was let with reference to it, and not with reference to the opinion of some writer on systems of sewerage who never saw or heard of the contract in question. I have no doubt that any expert on sewerage systems could devise many methods of applying a test, or many different tests, any or all of which might be appropriately applied to a system if called for in the contract, and however unreasonable or exacting they might be if the work failed to pass the test when required by the contract to do so, the engineer would be warranted in disapproving the work. To make this complaint good in this respect, it was necessary to plead affirmatively that such a test was contemplated by the contract, and no allegations of the complaint can be properly construed as allowing this. On the contrary, the express allegations of the complaint establish the fact that the test suggested is one not contemplated, and was arbitrarily adopted by the engineer.
•For these reasons I dissent.