any kind of a case, would result in permanently preventing the laws being enforced. Norman v. Kentucky Bd. of Managers, 93 Ky. 537, 18 L.R.A. 557, 20 S. W. 901; Barbour, Parties in Law & Eq. p. 106. Messrs. Thomas M. Honan, James E. McCullough, Frank S. Roby, Ward H. Watson, W. V. Stuart, E. P. Hammond, Dan W. Simms, Sol. H. Esarey, and Elias D. Salsbury also filed a brief for plaintiffs in er ror. Mr. Addison C. Harris argued the cause, and, with Mr. Ralph Kane, filed a brief for defendant in error: The plaintiffs in error have no personal interest and have not been hurt. Smith v. Indiana, 191 U. S. 138, 148, 48 L. ed. 125, 126, 24 Sup. Ct. Rep. 51; Braxton County Ct. v. West Virginia, 208 U. S. 192, 52 L. ed. 450, 28 Sup. Ct. Rep. 275. The mere averment of a Federal question is not enough to give this court jurisdiction over the judgment of a state court. A bare averinent of a Federal question is not sufficient. There must be a real, and not a fictitious, Federal question apparent upon the record in order to confer jurisdiction. Hamblin v. Western Land Co. 147 U. S. 531, 532, 37 L. ed. 267, 268, 13 Sup. Ct. Rep. 353; New Orleans v. New Orleans Waterworks Co. 142 U. S. 79, 87, 35 L. ed. 943, 946, 12 Sup. Ct. Rep. 142. ing the steps required by statute to certify and transmit to the clerks of the several counties in the [255] state a new Constitution proposed by the legislature of the state, and from printing and publishing a statement to be printed upon the ballots in such manner that the electors might indicate. their choice as to such new Constitution. Upon trial in the circuit court, an injunction was granted. Upon appeal to the supreme court of the state of Indiana the judgment of the circuit court was affirmed. 99 N. E. 1. The case was then brought here by writ of error. A motion was filed in this court on September 24, 1913, accompanied by an affidavit, stating the death of John T. Dye, defendant in error, and the appointment of Hugh Dougherty as his executor, and his qualification as such, in compliance with the laws of the state of Indiana, and asking that he be permitted to appear and defend as such executor, which motion is granted. There was also submitted on October 14, 1913, a motion to substitute Samuel M. Ralston, governor, and Will H. Thompson and John E. Hollett, members of the state board of election commissioners, of the state of Indiana, as plaintiffs in error. the judgment in this case was against the defendants Thomas R. Marshall, Muter M. Bachelder, and Charles O. Roemler, composing the state board of election commis As This is now a moot case, and should be sioners, and their successors in office, and dismissed. Mills v. Green, 159 U. S. 651, 653, 40 L. ed. 293, 294, 16 Sup. Ct. Rep. 132; Pennsylvania v. Wheeling & B. Bridge Co. 18 How. 421, 15 L. ed. 435; California v. San Pablo & T. R. Co. 149 U. S. 308, 314, 37 L. ed. 747, 748, 13 Sup. Ct. Rep. 876; New Orleans Flour Inspectors v. Glover, 160 U. S. 170, 40 L. ed. 382, 16 Sup. Ct. Rep. 321; Jones v. Montague, 194 U. S. 147, 151, 48 L. ed. 913, 914, 24 Sup. Ct. Rep. &11; Tennessee v. Condon, 189 U. S. 64, 47 L. ed. 709, 23 Sup. Ct. Rep. 579; Richardson v. McChesney, 218 U. S. 487, 54 L. ed. 1121, 31 Sup. Ct. Rep. 43. Mr. Justice Day delivered the opinion of the court: The case originated in a complaint filed in the circuit court of Marion county, Indiana, by John T. Dye, in which he alleged that he brought the suit for himself and other electors and taxpayers of the state of Indiana, the object of the suit being to enjoin the defendants, Thomas R. Marshall, governor, Muter M. Bachelder, and Charles O. Roemler, jointly composing the state board of election commissioners, and Lew G. Ellingham, secretary of state, from tak as such board is a continuing board (§ 6897, 2 Burns's Anno. Stat. [Ind.] 1908), notwithstanding its change of personnel, this motion is within the principle laid down in Murphy v. Utter, 186 U. S. 95, 46 L. ed. 1070, 22 Sup. Ct. Rep. 776, and is granted. See also Richardson v. McChesney, 218 U. S. 487, 492, 493, 54 L. ed. 1121, 1122, 31 Sup. Ct. Rep. 43. Lew G. Ellingham, secretary of state, is one of the plaintiffs in error, and the judgment. sought to be reviewed ran against him as such secretary of state, and he still occupies that office. The statute (Acts of 1911, p. 205) under which it was proposed to submit the new Constitution of the state provided for its submission at the general election in [256] November, 1912, and required the election. officials and other officers to perform like duties to those required at general elections, with a view to the submission of such questions. The supreme court sustained the contention that the act was void under the state Constitution, holding in substance that the act of 1911 was unconstitutional for want of authority in the legislature to submit an entire Constitution to the electors of the state for adop tion or rejection, and that, if the instru- an official, interest in the relief sought and ment could be construed to be a series of in the Federal right alleged to be denied amendments, it could not be submitted as by the judgment of the state court. This such for the reason that article 16 of the principle was laid down in Smith v. InConstitution of the state requires that all diana, 191 U. S. 138, 48 L. ed. 125, 24 amendments to the state Constitution shall, Sup. Ct. Rep. 51, in which it was held that before being submitted to the electors, re- the auditor of a county of the state of ceive the approval of two general assem- Indiana could not, upon writ of error to blies, which was not the case here, and this court, have the judgment of the suthat article 16 further provides that while preme court of Indiana, declaring an exan amendment or amendments to the Con- emption law of that state valid and the stitution, which have been agreed upon by performance of its provisions obligatory one general assembly, are awaiting the ac- upon him, reviewed upon the ground that tion of a succeeding general assembly or of the act was repugnant to the Federal Conthe electors, no additional amendment or stitution. The court, Mr. Justice Brown amendments shall be proposed, and that, as delivering the opinion, said (p. 149): a matter of fact, another amendment was still awaiting the action of the electors. "It is evident that the auditor had no personal interest in the litigation. He had The contention mainly urged by the certain duties as a public officer to perplaintiffs in error of the denial of Federal form. The performance of those duties was rights is that the judgment below is in of no personal benefit to him. Their noncontravention of article 4, § 4, of the Con- performance was equally so. He neither stitution of the United States, which pro- gained nor lost anything by invoking the vides that the United States shall guar- advice of the supreme court as to the antee to every state in the Union a re- proper action he should take. He was testpublican form of government. In Pacific ing the constitutionality of the law purely States Teleph. & Teleg. Co. v. Oregon, 223 in the interest of third persons; viz., [258] U. S. 118, 56 L. ed. 377, 32 Sup. Ct. Rep. the taxpayers; and in this particular the 224, this court had to consider the nature case is analogous to that of Caffrey v. Oklaand character of that section, and held that homa, 177 U. S. 346, 44 L. ed. 799, 20 Sup. it depended for enforcement upon political | Ct. Rep. 664. We think the interest of an and governmental action through powers conferred upon the Congress of the United States. The full treatment of the subject in that case renders further consideration of that question unnecessary, and the contention in this behalf presents no justiciable controversy concerning which the decision is [257] reviewable in this court upon writ of error to the state court. Equitable Life Assur. Soc. v. Brown, 187 U. S. 308, 314, 47 L. ed. 190, 193, 23 Sup. Ct. Rep. 123. And as to all questions said to be of a Federal character, although the judgment of the supreme court was rested solely upon its interpretation of the state Constitution, the rulings are assailed because of alleged wrongs done to the plaintiffs in error in their official capacity only. We have had frequent occasion to declare that the right of this court to review the judgment of the highest court of a state is circumscribed within the limits of § 709 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 575), now § 237 of the Judicial Code [36 Stat. at L. 1156, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 227]. See Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 53 L. ed. 417, 29 Sup. Ct. Rep. 220, and cases there cited. Among the limitations upon this right is the principle which requires those who seek to bring in review in this court the judgment of a state court to have a personal, as distinguished from appellant in this court should be a personal, and not an official, interest, and that the defendant, having sought the advice of the courts of his own state in his official capacity, should be content to abide by their decision." In Braxton County Ct. v. West Virginia, 208 U. S. 192, 52 L. ed. 450, 28 Sup. Ct. Rep. 275, it was held that, where the supreme court of West Virginia had compelled a county court by mandamus to lower its assessment so that it would be within the limit designated by a certain statute, this court would not entertain a writ of error to review the judgment of the state court, although the plaintiff in error had set up that the assessment contended for would not provide a sufficient amount to pay the expenses of the county, part of which it was alleged had by contract attached before the statute in question was passed. Speaking for the court, Mr. Justice Brewer said: "That the act of the state is charged to be in violation of the national Constitution, and that the charge is not frivolous, does not always give this court jurisdiction to review the judgment of a state court. The party raising the question of constitutionality and invoking our jurisdiction must be interested in and affected adversely by the decision of the state court sustaining the act, and the interest must be of a personal, and not of an official, nature. | record and proceedings make it evident Clark v. Kansas City, 176 U. S. 114, 118, 44 L. ed. 392, 396, 20 Sup. Ct. Rep. 284; Lampasas v. Bell, 180 U. S. 276, 283, 45 L. ed. 527, 530, 21 Sup. Ct. Rep. 368; Smith v. Indiana, 191 U. S. 138, 148, 48 In the present case the supreme court of the state has enjoined the plaintiffs in error, as officers of the state, from taking steps to submit the proposed Constitution to the electors of the state, because in its judgment the act of the legislature of the state, requiring such submission, was in violation of the state Constitution. Whether this duty [259] shall or shall not be performed concerns the plaintiffs in error in their official capacity only. The requirement that they refrain from taking such steps concerns their official, and not their personal, rights. Applying the rule established by the previous decisions of this court, it follows the judgment of the state supreme court is not reviewable here, as it is not alleged to violate rights of a personal nature, secured by the Federal Constitution or laws. It therefore follows that this writ of error must be dismissed. that both the court and the parties concerned treated the bill as an attack upon the right of the municipality to proceed expiration of the franchise, although to be to build a waterworks system before the operated thereafter. - diverse citizenship sequently arising. questions sub appeals is not final because the jurisdiction - confining MAYOR AND ALDERMEN OF THE CITY tion of such franchise, although there may OF VICKSBURG, Appts., be provisions in such decree which, read alone, without regard to the pleadings, would have that effect. [For other cases, see Judgment, III. j, in Dl. gest Sup. Ct. 1908.] Municipal corporations -water supply contract against public establish ment. 4. An exclusive franchise granted by a municipality to a private waterworks company to supply water for public and private use for a definite term does not prevent the municipality from issuing bonds for, and constructing, its own waterworks system, where such system is not to be put in operation until the franchise has expired. [For other cases, see Municipal Corporations, II. f, in Digest Sup. Ct. 1908.] 1. A decree of a Federal district court enjoining a municipality, on grounds of estoppel by judgment, from issuing bonds for, or constructing, a waterworks plant to be put in operation when an existing private waterworks franchise should expire, is final for the purpose of an appeal to the circuit court of appeals, although there were allegations in the pleadings which permitted or required a consideration of the law under which the bonds were to be! issued, and which were independent of the Argued and submitted October 28, 1913. alleged claim of res judicata, where the [No. 546.] Decided December 1, 1913. NOTE. As to what judgments or decrees | 1 L.R.A. 79; Cummington v. Belchertown, are final for purposes of review-see notes 4 L.R.A. 131; Rand v. Hanson, 12 L.R.A. to Gibbons v. Ogden, 5 L. ed. U. S. 302, and Schlosser v. Hemphill, 49 L. ed. U. S. 1001. 574; Wiese v. San Francisco Musical Fund Soc. 7 L.R.A. 578; Darby v. Mayer, 6 L. ed. U. S. 367; Mills v. Duryee, 3 L. ed. U. S. 411; D'Arcy v. Ketchum, 13 L. ed. U. S. 648; and Huntington v. Attrill, 36 On appellate jurisdiction of Federal Supreme Court over circuit courts of appeals -see note to Bagley v. General Fire Ex-L. ed. U. S. 1123. tinguisher Co. 53 L. ed. U. S. 605. Generally as to full faith and credit to be given to state records and judicial proceedings see notes to Lindley v. O'Reilly, On the establishment and regulation of municipal water supply-see note to State ex rel. Hallauer v. Gosnell, 61 L.R.A. 34. A PPEAL from the United States Circuit Court of Appeals for the Fifth Circuit to review a decree which affirmed a decree of the District Court for the Southern District of Mississippi, enjoining a municipality from issuing bonds for, or constructing, a waterworks system during the term of an existing exclusive franchise. Reversed and remanded for further proceedings. See same case below, 121 C. C. A. 664, 203 Fed. 1023. The facts are stated in the opinion. Messrs. T. C. Catchings, O. W. Catchings, and George Anderson submitted the cause for appellants. Mr. John Brunini was on the brief: The franchise does not prohibit the city from erecting waterworks to be operated after its termination. Denver v. New York Trust Co. 229 U. S. 123, 57 L. ed. 1101, 33 Sup. Ct. Rep. 657; Syracuse Water Co. v. Syracuse, 116 N. Y. 167, 5 L.R.A. 546, 22 N. E. 381; Thomas v. Grand Junction, 13 Colo. App. 80, 56 Pac. 665; Long v. Duluth, 49 Minn. 280, 32 Am. St. Rep. 547, 51 N. W. 913; Skaneateles Waterworks Co. v. Skaneateles, 184 U. S. 354, 46 L. ed. 585, 22 Sup. Ct. Rep. 400; El Paso Water Co. v. El Paso, 152 U. S. 157, 38 L. ed. 396, 14 Sup. Ct. Rep. 494; Sioux Falls v. Farmers' Loan & T. Co. 69 C. C. A. 373, 136 Fed. 721. The burden of proof is on the party asserting an estoppel by judgment. Harrison v. Remington Paper Co. 3 L.R.A. (N.S.) 954, 72 C. C. A. 405, 140 Fed. 385, 5 Ann. Cas. 314; Lewis v. Ocean Nav. & Pier Co. 125 N. Y. 341, 26 N. E. 301. Upon an issue of res judicata all doubts must be resolved against the party pleading it. 109, 5 L. ed. 218. The essential conditions upon which the exception of res judicata becomes applicable are the identity of the thing demanded, the identity of the cause of the demand, and of the parties in the character in which they are litigants. Washington, A. & G. Steam Packet Co. v. Sickles, 24 How. 333, 16 L. ed. 650; Freeman, Judgm. § 252. It is first necessary to inquire whether or not the cause of action in both cases was the same; for if this is so, all matters are concluded which were or might have been litigated, while otherwise only those defenses are barred which were actually asserted in the prior cause. Cromwell v. Sac County, 94 U. S. 351, 24 L. ed. 195; Davis v. Brown, 94 U. S. 423, 24 L. ed. 204; Nesbit v. Independent Dist. 144 U. S. 610, 36 L. ed. 562, 12 Sup. Ct. Rep. 746; Wilmington & W. R. Co. v. Alsbrook, 146 U. S. 279, 36 L. ed. 972, 13 Sup. Ct. Rep. 72; Crowder v. Red Mountain Min. Co. 127 Ala. 260, 29 So. 847. It is always admissible to consult the record of the prior case to determine what was decided, and the language of the judgment or decree relied upon as an estoppel must be interpreted with relation to and limited by the issues presented. Davis v. Brown, 94 U. S. 423, 24 L. ed. 204; Washington Gaslight Co. v. District of Columbia, 161 U. S. 316, 40 L. ed. 712, 16 Sup. Ct. Rep. 564; Graham v. Chamberlain, 3 Wall. 704, 18 L. ed. 247; Barnes v. Chicago, M. & St. P. R. Co. 122 U. S. 1, 30 L. ed. 1128, 7 Sup. Ct. Rep. 1043; Freeman, Judgm. § 271. The rule that a decree cannot go beyond the issues involved is not merely one of construction, but is a limitation upon the power of the court. L. ed. 464, 11 Sup. Ct. Rep. 773; Munday Reynolds v. Stockton, 140 U. S. 254, 35 v Vail, 34 N. J. L. 418. Issues can only be raised by appropriate allegations of fact; and if a court goes beyond the issues so raised, its judgment is void. Harrison v. Nixon, 9 Pet. 483, 9 L. ed. 201; Harding v. Handy, 11 Wheat. 103, 6 L. ed. 429; Foster v. Goddard, 1 Black, 506, 17 L. ed. 228; Crocket v. Lee, 7 Wheat. 522, 5 L. ed. 513; Reynolds v. Stockton, 140 U. S. 254, 35 L. ed. 464, 11 Sup. Ct. Rep. 773; Outram v. Morewood, 3 East, 346, T Revised Rep. 473, 5 Mor. Min. Rep. 484; 11 Enc. Pl. & Pr. 868. Issues cannot be enlarged or extended by praying relief which the case made by the bill does not warrant. A special prayer for relief may narrow the issues presented by not asking as extensive relief as the complainant is entitled to; but it can never be so framed as to enlarge the scope of the bill. 16 Cyc. 225; Staton v. Rising, 103 Ala.. 454, 15 So. 848; Thoms v. Thoms, 45 Miss.. 263; English v. Foxall, 2 Pet. 595, 7 L. ed. 531; Lockhart v. Leeds, 195 U. S. 427, 49 L. ed. 263, 25 Sup. Ct. Rep. 76; Hardin v. Boyd, 113 U. S. 756, 28 L. ed. 1141, 5 Sup. Ct. Rep. 771; Hobson v. M'Arthur, 16 Pet. 182, 10 L. ed. 930; Tayloe v. Merchants F. Ins. Co. 9 How. 390, 13 L. ed. 187. An important test of whether an estoppel exists is to compare the proof used to sus-tain the respective allegations of the twosuits. Stone v. United States, 12 C. C. A. 451, 29 U. S. App. 32, 64 Fed. 667, affirmed in 167 U. S. 178, 42 L. ed. 127, 17 Sup. Ct. Rep. 778; Freeman, Judgm. § 259; Clark v. Blair, 4 McCrary, 311, 14 Fed. 812; Mobile County v. Kimball, 102 U. S. 691, 26 L. ed. 238. The city adopted its plan to build waterworks at a time when the franchise had almost expired, to be held in readiness to supply water at that time, many years after the decision of Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 65, 46 L. ed. 808, 22 Sup. Ct. Rep. 585; and its rights in the premises depend, therefore, upon a state of facts which has arisen since the rendition of the decree in that case. It necessarily follows that nothing which was decided at that time can constitute an estoppel. 2 Black, Judgm. § 617; Winnipiseogee Lake Co. v. Young, 40 N. H. 420; 24 Am. & Eng. Enc. Law, 777; 23 Cyc. 1161, 1290. A question cannot be held to have been adjudged before an issue on the subject could possibly have arisen. Third Nat. Bank v. Stone, 174 U. S. 432, 43 L. ed. 1035, 19 Sup. Ct. Rep. 759. Courts refuse to be drawn into the determination of mere abstract principles of law; they decline to construe possible future controversies which have not yet aris General expressions in an opinion which are not essential to the disposition of the case cannot control the judgment in subsequent suits. Harriman v. Northern Securities Co. 197 U. S. 244, 49 L. ed. 739, 25 Sup. Ct. Rep. 493. An instructive case, which illustrates the liberal attitude assumed by this court in construing decrees, is that of Conway v. Taylor, 1 Black, 604, 17 L. ed. 191. Appellee is now estopped to assert that the city cannot erect a waterworks system to be operated after the termination of the franchise. Philadelphia, W. & B. R. Co. v. Dubois, 12 Wall. 47, 20 L. ed. 265. The city should not be enjoined from erecting waterworks to be operated after the expiration of the franchise, for the reason that such a decree would at this time be inequitable. St. Louis, K. C. & C. R. Co. v. Wabash R. Co. 81 C. C. A. 643, 152 Fed. 849. and, with Messrs. J. C. Bryson and Joseph Mr. Edgar H. Farrar argued the cause, Hirsh, filed a brief for appellees: The decree of the district court is not final, 1st. Because it failed to adjudicate the en; it is not their province to deal with validity of the bond election and the right to issue bonds thereunder, irrespective of the purpose for which they were to be issued. vague general questions as to the relative rights of parties to contracts, and to construe their provisions in advance; they do not decide moot questions. State ex rel. Wright v. Savage, 64 Ncb. 684, 90 N. W. 898, 91 N. W. 557; State v. Lambert, 52 W. Va. 248, 43 S. E. 176; New Orleans & N. W. R. Co. v. Linehan Ferry Co. 104 La. 53, 28 So. 840. The city had threatened to build and operate a waterworks system and subject the existing company to its competition, and the aid of the court was appropriately invoked to prevent this injury. It had never threatened to build noncompeting waterworks upon the termination of the franchise, and even if this constituted an infringement of the complainant's rights, upon familiar principles, it could not have procured an injunction against the doing of an act which had never been threatened or even contemplated. Truly v. Wanzer, 5 How. 141, 12 L. ed. 88; Richmond, F. & P. R. Co. v. Louisa R. Co. 13 How. 71, 14 L. ed. 55. A judgment is conclusive by way of estoppel only as to facts without the existence and proof or admission of which it could not have been rendered. Bigelow, Estoppel, 82; Washington, A. & G. Steam Packet Co. v. Sickles, 5 Wall. 580, 18 L. ed. 550. 2d. Because it failed to dispose of the issue raised by the petition of Lelia Boykin, the intervener. She did not ask any relief to build waterworks during the life of the on the ground that the right of the city Bullock franchise had been adjudicated. On her petition, excluded the complainant's the other hand, she, by the express terms of averments in that regard, and did not pray any relief whatever predicated upon the question of res judicata, or upon the terms of the Bullock franchise. She sought relief solely on the ground that the bond election was invalid and void, and did not empower the appellant city to issue the bonds in question. That question the court pointedly declined to adjudicate or even to dismiss her petition, or a similar demand contained in complainant's proceedings. Craighead v. Wilson, 18 How. 199, 15 L. ed. 332; Green v. Fisk, 103 U. S. 518, 26 L. ed. 485; Bostwick v. Brinkerhoff, 106 U. S. 3, 27 L. ed. 73, 1 Sup. Ct. Rep. 15; Grant v. Phoenix Mut. L. Ins. Co. 106 U. S. 429, 27 L. ed. 237, 1 Sup. Ct. Rep. 414; St. Louis, I. M. & S. R. Co. v. Southern Exp. Co. 108 U. S. 24, 27 L. ed. 638, 2 Sup. Ct. Rep. 6; Dainese v. Kendall, 119 U. S. 53, 30 L. ed. 305, 7 Sup. Ct. Rep. 65; |