Joseph McKenna

“ The notice of an application for a franchise is required to state that sealed bids will be received for the franchise 'up to a certain hour and day named therein' (§ 3) , and also to state that the franchise 'will be granted to the person, firm, or corporation who shall make the highest cash bid therefor;' and any bid may be raised not less than 10 per cent 'above the highest sealed bid,' and the franchise finally struck off, sold, and granted to the 'highest bidder.' (§ 5) . ”

“ We will assume the contentions are untenable, and we will also assume that all the steps preliminary to the bidding were rightfully taken, and that the order of the council striking off and selling to appellant the franchise was sufficient to vest title in appellant if its bid was properly and legally accepted under § 5 of the act of 1901. ”

“ In those cases the question of jurisdiction was presented on motion to dismiss. In the case at bar it is presented by demurrer; but, however presented, jurisdiction depends primarily upon the allegations of the bill, not upon the facts as they may subsequently turn out. City Railway Co. v. Citizens' Street R. Co. 166 U.S. 557, 41 L. 1114, 17 Sup. Ct. Rep. 653. Nor upon the actual sufficiency, in the opinion of the court, of the facts alleged to justify the relief prayed for. We do not mean, however, that a mere claim in words is sufficient-a substantial controversy must be presented. ”