DAY, MCKENNA, HUGHES and PITNEY, JJ., dissenting. 230 U.S. make by the ordinance of 1889, and that the Telephone Company was, therefore, a trespasser upon the streets. Upon a final hearing the bill was dismissed. This decree was pleaded as an adjudication of the question of the validity of the ordinance under which the Telephone Company now claims. But the judgment makes the opinion of the court filed at the time "a part of the record." That opinion shows that the court dismissed the bill because its object had failed, the city having actually constructed its lines before final decree. In reference to the issue as to the validity of the Telephone Company's street rights, the Kentucky court said: "In passing upon the question of granting or refusing the injunction, I deem it wholly unnecessary to pass upon the validity or invalidity of the ordinance discussed." The litigation, though between the same parties, is upon an entirely different cause of action. The bar of the former judgment is, therefore, confined to the questions which were actually litigated and decided in the former case, and it devolved upon the city to show in support of its plea, the cause of action being different in the present case, that the point here in issue was adjudged in the former case. DeSollar v. Hanscome, 158 U. S. 216; Virginia-Carolina Chemical Co. v. Kirven, 215 U. S. 252. We find no error in the decree of the court below and it is, therefore, Affirmed. MR. JUSTICE DAY, with whom concurred MR. JUSTICE MCKENNA, MR. JUSTICE HUGHES and MR. JUSTICE PITNEY, dissenting. I am unable to concur in the judgment and opinion announced in this case. In my opinion the ordinance of December 4, 1889, granting to The Cumberland Telephone & Telegraph Company, its successors and assigns, the 230 U. S. DAY, MCKENNA, HUGHES and PITNEY, JJ., dissenting. right to use the streets and alleys of the City of Owensboro for the purpose of erecting poles and stringing wires thereon to maintain a telephone system, did not grant a perpetual franchise, because of the limitation upon the authority of the City of Owensboro to grant a perpetual franchise. The case is not controlled by the previous cases in this court, such as the late case of Louisville v. Cumberland Telephone Co., 224 U. S. 649, which had to do with the construction of a legislative grant to a corporation having perpetual succession and did not involve the construction of the charter of a Kentucky city such as is here under consideration. The power to grant a perpetual franchise to telephone and similar companies desiring to use the streets and alleys of the City of Owensboro is said to be derived under § 10 of the charter, conferring upon the common council in subsection 27 the right to regulate streets, alleys and sidewalks and all repairs thereof in the city. Conceding that if this power were conferred without limitation it might authorize a grant in perpetuity of the character herein involved, the authority found in subsection 27 as well as other municipal powers are all granted to the common council by the legislature of the State upon the following terms, preceding the grant of authority: "§ 10. The common council shall have control of the finances and all property, real and personal, belonging to the city, and shall have full power to make, publish, amend, and repeal all ordinances for the following purposes, to wit." In other words the authority granted to regulate the streets is limited by the express reservation that it shall be exercised subject to the power of the city to amend and repeal any ordinance so enacted. In Greenwood v. Freight Co., 105 U. S. 13, wherein this court held that a grant to a street railway company subject to the limitation of the right to amend, alter or repeal was DAY, MCKENNA, HUGHES and PITNEY, JJ., dissenting. 230 U. S. subject to future legislation ending the right of the street railway company to operate in the streets of the city, Mr. Justice Miller, who delivered the opinion of the court, stated the origin of statutory and legislative reservations of this character enacted since the decision of Dartmouth College v. Woodward, 4 Wheat. 518, construing corporate charters as contracts between the public authorities and the grantees, beyond legislative control and within the protection of the contract clause of the Federal Constitution. The learned Justice said (p. 20): "It became obvious at once that many acts of incorporation which had been passed as laws of a public character, partaking in no general sense of a bargain between the States and the corporations which they created, but which yet conferred private rights, were no longer subject to amendment, alteration, or repeal, except by the consent of the corporate body, and that the general' control which the legislatures creating such bodies had previously sup.posed they had the right to exercise, no longer existed. It was, no doubt, with a view to suggest a method by which the state legislatures could retain in a large measure this important power, without violating the provision of the Federal Constitution, that Mr. Justice Story, in his concurring opinion in the Dartmouth College Case, suggested that when the legislature was enacting a charter for a corporation, a provision in the statute reserving to the legislature the right to amend or repeal it must be held to be a part of the contract itself, and the subsequent exercise of the right would be in accordance with the contract, and could not, therefore, impair its obligation." In view of that policy this court held that whatever rights remained to its other property the authority to run cars upon the streets of the City of Boston, being subject to the reservation, terminated upon the repeal of the ordinance. If there is such right to repeal, the authorities are con 230 U. S. DAY, MCKENNA, HUGHES, and PITNEY, JJ., dissenting. clusive that it may be exercised so as to terminate the rights of the company to further use the streets. In a recent case, Calder v. Michigan, 218 U. S. 591, this court approved and reaffirmed this principle. In that case The Grand Rapids Hydraulic Company had been incorporated by the legislature of Michigan and had constructed and was then maintaining an elaborate water system. The legislature repealed the charter, reservation to amend or repeal having been made in the original act. In aid of the contention that the repealing act was void under the Fourteenth Amendment to the Constitution, it was alleged that there were outstanding bonds and a mortgage on the company's plant, including its franchise to own and operate its system; also that, the city being a competitor of the company, the city authorities had secured the passage of the repealing statute by unfair means. This court said (pp. 598 et seq.): "The defendants now, on the ground that there are limits even to the operation of a reserved power to repeal, argue that we should consider these allegations. But we do not inquire into the knowledge, negligence, methods or motives of the legislature if, as in this case, the repeal was passed in due form. United States v. Des Moines Navigation & Railway Co., 142 U. S. 510, 544. The only question that we can consider is whether there is anything relevant to the present case in the terms or effect of the repeal that goes beyond the power that the charter expressly reserves. By making a contract or incurring a debt the defendants, so far as they are concerned, could not get rid of an infirmity inherent in the corporation. They contracted subject, not paramount, to the proviso for repeal, as is shown by a long line of cases. Greenwood v. Freight Co., 105 U. S. 13. Bridge Co. v. United States, 105 U.S. 470. Chicago Life Insurance Co. v. Needles, 113 U. S. 574. Monongahela Navigation Co. v. United States, 148 U. S. 313, 338, 340. New Orleans Waterworks Co. v. 66 DAY, MCKENNA, HUGHES and PITNEY, JJ., dissenting. 230 U. S. Louisiana, 185 U. S. 336, 353, 354. Knoxville, 189 U. S. 434, 437, 438. Knoxville Water Co. v. 199 U. S. 473, 480. It would be a waste of words to try to make clearer than it is on its face, the meaning and effect of this reservation of the power to repeal. The only question before us now is the validity of the judgment ousting the defendants from 'assuming to act as a body corporate, and particularly under the name and style of the Grand Rapids Hydraulic Company.' This really is too plain to require the argument that we have spent upon it. We may add that it is a matter upon which the bondholders have nothing to say.' See also Hamilton Gas Light Co. v. Hamilton City, 146 U. S. 258. It is said, however, and that seems to be the ground upon which the decision of the court upon this point rests, at last, that the reservation of the right to repeal does not clearly appear in the charter of Owensboro, as it did in the Massachusetts legislation considered in Greenwood v. Freight Co., supra, and it is said that such right, when it is claimed, must be clear and explicit. To my mind the purpose of the Kentucky legislature was evidenced with perfect clearness, for I think that the same law which gave the city the right, which otherwise would have rested with the legislature alone of exercising authority over the streets, which in this case, it is held, authorized their use for telephone purposes, in unmistakable terms made such authority subject to the clearly stated and definite limitation named. Furthermore, the doctrine is well settled that legislative grants of municipal authority shall be construed most favorably to the public and against persons claiming thereunder, a doctrine sanctioned by decisions of this court. Moran v. Commissioners of Miami County, 2 Black, 722; Citizens' Street Railway v. Detroit Railway, 171 U. S. 48; Los Angeles v. Los Angeles City Water Co., 177 U. S. 558. Surely, if the intention of the |