Opinion of the Court.

of an attribute which he could otherwise have exercised on behalf of the claim if he favored its payment, and hence the ordinance impaired the contract obligations. But it is not pretended that the effect of the auditing by the comptroller would have been to authorize the payment of the claim, or indeed that it was anything but advisory; since even after he had audited, the payment could not have been procured without the passage of an appropriation by the council for that purpose. A large number of cases were cited in the argument at bar, under the assumption that they sustain the proposition that wherever a mere denial of contract liability is made by a municipality, such denial is an impairment of the obligations of the contract, since it is a refusal to comply with the contract and hence is a disregard of the obligations which the contract created. We do not stop to refer to all these cases thus relied upon, because we think it results from the statement of the proposition that it is without foundation. However, we briefly advert to a few of the cases to show how inapposite they are to the proposition which they are cited to maintain. Thus, in Murray v. Charleston, 96 U. S. 432, the decision which was under review had given effect to an ordinance of the city of Charleston deducting a sum of taxation from the bonds held by the complainant. In Walla Walla v. Walla Walla Water Company, 172 U. S. 1, the decision of the state court gave effect to a municipal ordinance which provided for the construction by the city of a new waterworks plant which was to become a competitor with the contracting company. In McCullough v. Virginia, 172 U. S. 102, it was expressly held, although the state court had rested its decision on the ground that there was no contract, in view of the previous decisions of this court and of the state court, relating to the contract which was under consideration, that the necessary effect of the ruling was in substance to give effect to an act of the legislature of Virginia, passed subsequent to the contract, and which impaired its obligations. In Houston & Texas Central Railroad Co. v. Texas, 177 U. S. 66, 74, this court, after noticing the fact that the state court had decided the case "without reference to the act of 1870 which the plaintiff in error [the railroad company] alleges to be an impairment of the contract set

Counsel for Parties.

up by it in the pleadings," said: "We think the judgment of the court did give effect to that act." And the soundness of this conclusion the opinion then proceeded to demonstrate, it being apparent that the legislative act of impairment which the court found had been given effect to by the state decision was not a mere denial of liability, but amounted to an impairment of the substantial rights conferred by the contract.

As it is apparent from the foregoing considerations that, even conceding the contract to be as contended for, no legislative act is shown to exist, from the enforcement of which an impairment of the obligations of the contract-within the purview of the Constitution did or could result, it follows that the record involves solely an interpretation of the contract, and, therefore, presents no controversy within the jurisdiction of this court. Dismissed for want of jurisdiction.

CODLIN v. KOHLHAUSEN.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO.

No. 234. Argued and submitted April 11, 1901.-Decided April 15, 1901.

Judgment awarding a peremptory writ of mandamus directing the execution of certain county bonds for the construction of a courthouse and jail having been rendered in October, 1897, the case taken on error to the appellate tribunal in 1898, and affirmed in 1899, and the bonds having been, in the mean time, issued and sold and the building constructed, and the county officials, who were the original respondents below, and are appellants here, having gone out of office before this appeal was taken, the court is of opinion that the rule approved in Mills v. Green, 159 U. S. 651, and in cases there cited, should be applied.

MOTION to dismiss. The case is stated in the opinion of the

court.

Mr. Andrieus A. Jones for the motion.

Mr. R. E. Twitchell opposing, submitted on his brief.

Opinion of the Court.

THE CHIEF JUSTICE: This was a petition filed by appellees in the District Court for Colfax County, New Mexico, praying for a writ of mandamus directed to Codlin, chairman, and Salazar, clerk, of the Board of County Commissioners of the county of Colfax, commanding them to officially sign and execute certain bonds and deliver them to the designated agent of the county for sale, for the construction of a courthouse and jail.

The alternative writ of mandamus was issued and due return made, whereupon, and after hearing, the District Court ordered the peremptory writ to issue, which was done, and the writ served, October 23, 1897.

The case was carried on error to the Supreme Court of the Territory in June, 1898, and it appears from an affidavit in that court that the mandate of the District Court was obeyed and the bonds issued and sold; and from an affidavit in this court that the proceeds were used in the construction of the courthouse and jail, which were completed on or about January 1, 1899. That affidavit also states that Codlin ceased to be chairman or a member of the Board of County Commissioners in January, 1899, and that Salazar ceased to be clerk during or prior to March, 1899.

The Territorial Supreme Court affirmed the judgment of the District Court, August 28, 1899. 9 N. Mex. 565. An appeal from the judgment of affirmance to this court was allowed January 2, 1900, and the record filed here March 28.

We think the cause comes within the rule applied in Mills v. Green, 159 U. S. 651, 653, and cases cited, and the order must be

Appeal dismissed without costs to either party.

Opinion of the Court.

NEW ORLEANS v. EMSHEIMER.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA.

No. 337. Submitted December 10, 1900.-Decided April 15, 1901.

Where a bill in equity was demurred to on the ground that the Circuit Court had no jurisdiction as such, and also on the ground that the remedy was at law, and the demurrer was sustained and the bill dismissed on the latter ground, without prejudice to an action at law, the city of New Orleans, defendant below, was not aggrieved in a legal sense by its own success, and cannot bring the decree in its favor here on a certificate of jurisdiction.

THIS was a motion to dismiss or affirm. It was submitted on the 10th of December, 1900. On the 17th of that month, the consideration was ordered to be postponed until the record should be printed, or so much thereof as would enable the court to act understandingly without referring to the transcript.

Mr. Richard De Gray,in behalf of Mr. J. D. Rouse, and Mr. William Grant submitted in support of the motion.

Mr. Samuel L. Gilmore, Mr. Frank B. Thomas and Mr. Branch K. Miller submitted in opposition.

THE CHIEF JUSTICE: Emsheimer filed his bill against the city of New Orleans, on behalf of himself and others similarly situated, in the Circuit Court for the Eastern District of Louisiana, seeking to collect certain certificates of indebtedness issued by the Board of Metropolitan Police of New Orleans through an accounting; to which the city demurred on the grounds that the Circuit Court had no jurisdiction as such for want of proper averments of diverse citizenship; that necessary parties were lacking; and that the remedy was at law, and not in equity.

The Circuit Court held that the averments in respect of citizenship were sufficient, but sustained the demurrer on the

Opinion of the Court.

ground that there was no equity in the bill, and dismissed the bill "for want of equity with full reservation of complainant's right to sue and proceed at law."

Subsequently an appeal was granted to this court, on application of the city, "for the sole and exclusive purpose of having a review of the finding, decision, and decree of the court over. ruling the said first ground of the said demurrer, by which the jurisdiction of this court and the sufficiency of the averments of the bill purporting to show the same are put at issue."

Defendant below sought no affirmative relief, but simply to defeat the suit. In this it succeeded, and the decree is a bar to another suit in equity on this cause of action so long as it stands unreversed.

The decree did not injure defendant but sustained its contention, and defendant is in no position to complain that it is aggrieved by its own success. The decree cannot be reversed at its instance because put on one of the grounds it urged rather than another.

If complainant brings an action at law, and the question of Federal jurisdiction is in issue, or if this decree should be hereafter reversed and Federal and equity jurisdiction sustained, it will be time enough if final judgment or decree passes against defendant in the Circuit Court for the question of jurisdiction to be certified. United States v. Jahn, 155 U. S. 109; Smith v. McKay, 161 U. S. 355.

Appeal dismissed.