Opinion of the Court.

Mr. B. F. Burwell for appellant.

236 U.S.

Mr. Claude Weaver, with whom Mr. J. W. Johnson and Mr. V. V. Hardcastle were on the brief, for appellees.

Memorandum opinion by MR. JUSTICE 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 Fed. Rep. 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, there

fore, 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

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, 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, 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.

AMERICAN SEEDING MACHINE COMPANY v. COMMONWEALTH OF KENTUCKY.

ERROR TO THE COURT OF APPEALS OF THE STATE OF

KENTUCKY.

No. 175. Argued March 5, 1915.-Decided March 15, 1915.

International Harvester Co. v. Kentucky, 234 U. S. 216, followed to effect that §§ 3915 and 3941, of the Kentucky Anti-Trust Statutes, are invalid under the due process provision of the Fourteenth

Amendment because, as construed by the Court of Appeals of that State, they offer no standard of conduct that it is possible to know. 152 Kentucky, 589, reversed.

THE facts, which involve the constitutionality under the Fourteenth Amendment of certain provisions of the Antitrust Act of the State of Kentucky, are stated in the opinion.

Mr. J. E. Bowman, with whom Mr. Alexander Pope Humphrey was on the brief, for plaintiff in error.

There was no appearance or brief filed for defendant in

error.

Memorandum opinion by MR. JUSTICE MCKENNA, by direction of the court.

Plaintiff in error was convicted in the Circuit Court of Barren County, Kentucky, and fined for alleged violation of §§ 3915 and 3941 of the Kentucky laws commonly known as the Kentucky Anti-trust Statutes, and prosecutes this writ to review the judgment.

The grounds of error assigned are: (1) That the statutes in question are in conflict with the Fourteenth Amendment to the Constitution of the United States; (2) That the particular transactions involved were transactions of interstate commerce and protected from state regulation by the Commerce Clause of the Constitution of the United States.

These grounds were presented to the lower court first by demurrer, which was overruled, and, after answer and trial to a jury, by a request for peremptory instructions for defendant.

The sections of the laws of Kentucky referred to were declared to be invalid by this court under the Fourteenth Amendment because they, as construed by the Court of

Appeals of the State, offered no standard of conduct that it is possible to know. International Harvester Co. v. Kentucky, 234 U. S. 216. Therefore, the judgment of conviction against plaintiff in error must be reversed. It is not necessary to pass on any other question.

Judgment reversed.

A. J. PHILLIPS COMPANY v. GRAND TRUNK WESTERN RAILWAY CO.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.

No. 124. Argued January 15, 1915.—Decided March 15, 1915.

A finding by the Interstate Commerce Commission in a general investigation that an advance in a rate on a specified commodity between specified points is unreasonable inures to the benefit of every shipper who has paid the unjust rate, provided however, that he asserts his claim against the carrier within the time fixed by law. A shipper who paid charges prior to the passage of the Hepburn Act and did not commence proceedings until more than one year after the passage of that act cannot recover on the strength of a finding of the Interstate Commerce Commission made in a general proceeding to which he was not a party that the rate paid was unreasonable. The Conformity Act (Rev. Stat. 914) does not apply to a state rule of practice prohibiting taking advantage of the statute of limitations by general demurrer to a cause arising under a Federal statute expressly limiting the time within which the right created by the statute can be asserted-in which case the lapse of time not only bars the remedy but destroys the liability.

The prohibitions of the Interstate Commerce Act against unjust discriminations relate not only to inequality of facilities but also to giving preferences by means of consent judgments or waivers of defenses open to the carrier.

Quare, whether connecting carriers participating in a haul, the advanced