Where the bill presents a case of diversity of citizenship only,
the decree of the circuit court of appeals is final. An appeal to
this Court must be dismissed.
An allegation in a pleading that, by reason of contracts with a
municipality, plaintiff had a vested right of property in such
contracts or in their performance, and that a refusal to perform
amounts to deprivation of such property, does not give the
allegation any other character than that of one alleging ordinary
breach of contract.
A constitutional question cannot be imported into the case in
that manner.
Appeal from 203 F. 921 dismissed.
The facts, which involve the jurisdiction of this Court to
review judgments of the circuit court of appeals, are stated in the
opinion.
Page 236 U. S. 658
Memorandum opinion by MR. JUTICE McKENNA, by direction of the
Court.
Suit for specific performance of eighteen contracts for the
paving of certain streets in the City of Oklahoma City,
Oklahoma.
A temporary restraining order was applied for and denied. The
suit subsequently came on to be heard on the bill, answer, and
proofs, and a decree was entered dismissing it. The decree was
affirmed by the circuit court of appeals. 203 F. 921.
A question of jurisdiction arises -- that is, whether an appeal
lies from the decree of the circuit court of appeals to this Court,
and that depends upon the ground on which the jurisdiction of the
district court was invoked, and whether, as a consequence, the
decree of the circuit court of appeals was final.
The bill alleges that McCormick, whom we shall designate as
complainant, is a citizen and resident of St. Louis, Missouri, and
that the City of Oklahoma City is a citizen and resident of
Oklahoma, being a municipal corporation thereof, and that the other
defendants are its officers.
The gravamen of the suit is that, under an ordinance of the
city, resolutions were passed by the city council at different
times providing for the paving of certain streets in the city, and
that, under due and legal proceedings had under such resolutions,
plans, specifications, and estimates of the work were prepared by
the city engineer. That, in accordance with these and notices
published, complainant filed with the city clerk proposals and bids
which were afterwards by the council duly accepted; that they
therefore
Page 236 U. S. 659
became and constituted valid and binding contracts between the
city and complainant for making such improvements, and that he, by
reason of such contracts, has a vested right of property in the
same, and is entitled to be permitted to perform the same. That
subsequently the council attempted by resolution or motion to
reconsider its action and to set aside the awards, in violation of
complainant's rights. That he tendered formal written contracts and
requested the acting mayor to execute them, but that officer
refused to do so, or to approve the bonds presented therewith. That
complainant has done in all other particulars the things required
to be done and performed by him, and had done some work under his
contracts before they were attempted to be set aside. That, unless
restrained, the city will deprive complainant of the privilege of
making the improvements and prevent him from making the profits
thereon, which would amount to at least $45,000; that the attempt
of the city to set aside the awards to complainant
"is in violation of the Constitution of the United States, and
in violation of the Constitution and laws of the State of Oklahoma,
and is an attempt to deprive this complainant of property without
due process of law."
These are the general outlines of the bill, and they are
sufficient to show that diversity of citizenship was alleged, and,
in a general way, that the Constitution of the United States and of
the State of Oklahoma were violated. The basis of the latter
allegation is that complainant had binding contracts with the city
which the city refused to permit him to perform. Their breach is
alleged and nothing more, and the allegation gets no other quality
or character by the assertion that complainant had a "vested right
of property" in the contracts or their performance, and that to
take this away is a deprivation of property without due process of
law. Nor would such be the result if complainant had averred that
the circumstances amounted
Page 236 U. S. 660
to an impairment of the obligation of his contract -- a
contention which he in effect urged upon the oral argument.
The case therefore falls under the ruling in
St. Paul Gas
Light Co. v. St. Paul, 181 U. S. 142, and
subsequent cases.
In
Dawson v. Columbia Trust Company, 197 U.
S. 178,
197 U. S. 181,
it was said that the mere fact that a city is a municipal
corporation does not give to its refusal to perform a contract the
character of a law impairing its obligation, or depriving of
property without due process of law.
St. Paul Gas Light Co. v.
St. Paul, supra, was adduced.
In
Shawnee Sewerage & Drainage Co. v. Stearns,
220 U. S. 462,
220 U. S. 471,
it was said: "The breach of a contract is neither a confiscation of
property nor a taking of property without due process of law."
It follows that the bill presents a case of diversity of
citizenship only, and the decree of the circuit court of appeals
was final.
We may observe that that court and the district court decided
that there were no contracts consummated by complainant with the
city.
Appeal dismissed.