remedial works specified and heretofore mentioned, met every reasonable equity which was asserted by it. It is in substantial accord with the decree of this court in a somewhat similar case. Georgia v. Tennessee Copper Co., 206 U. S. 230. We find no error in the decree of the court below and it is accordingly

Affirmed.

CITY OF OWENSBORO v. CUMBERLAND TELEPHONE & TELEGRAPH CO.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF KENTUCKY.

No. 244. Argued April 22, 1913.-Decided June 16, 1913. .

Rights conferred by a municipal ordinance on a corporation qualified to conduct a public business come from the State through delegated power to the city.

A municipal ordinance granting to a corporation qualified to carry on a public business, such as a telephone system, the right to use the streets for that purpose, is more than a mere revocable license; it is the granting of a property right, assignable, taxable and alienable, an asset of value and a basis of credit.

Such a grant is one of property rights in perpetuity unless limited in duration by the grant itself or by a limitation imposed by the general law of the State or by the corporate powers of the municipality. The powers of municipalities of Kentucky to grant licenses in the streets for telephones were not limited in 1889 as to time; and, under a charter provision giving power to regulate streets and alleys, a municipality had ample power to grant a franchise to a telephone company to place and maintain poles and wires thereon. A corporation is capable of taking a grant of street rights of longer duration than its own corporate existence if the grant expressly inures to the benefit of the grantees, assigns and successors. St. Clair Turnpike Co. v. Illinois, 96 U. S. 63, distinguished.

A reservation to alter or amend in a municipal ordinance, granting rights in the streets to a corporation to carry on a public utility, as the necessities of the city demand, is simply a reservation of police

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Statement of the Case.

control incidental to the unabridgeable police power and does not reserve a right to revoke or repeal the ordinance itself.

While the power to destroy contract rights may be reserved by a municipality in the ordinance granting them, the reservation must be clear and explicit.

An ordinance requiring a telephone corporation to remove from the streets its poles and wires which had been placed there under a former ordinance granting permission so to do without specifying any period, or else pay a rental not prescribed in the original ordinance, held unconstitutional under the contract clause of the Federal Constitution. Greenwood v. Freight Co., 105 U. S. 13, distinguished. Where, under the statutes of the State, a corporation formed by consolidation of several previously existing corporations becomes by express terms vested with all the assets of such constituent corporations, rights in the streets under municipal ordinances pass to the new corporation, and such rights are protected against impairment by the contract clause of the Federal Constitution.

Where the judgment itself makes the opinion a part of the record, the bar of the judgment is confined to those questions to which the opinion expressly declares the litigation was limited.

THIS case involves the nature and duration of the right of the Telephone Company to maintain its poles and wires upon the streets of the City of Owensboro. The ordinance under which it, or its predecessors in right, title and property, have maintained a telephone system in the City of Owensboro, was passed on December 4, 1889. Inasmuch as it contains several provisions which require consideration, it is set out in full in the margin.1

1 Council Proceedings, Dec. 4th, 1889.

Minute Book "F," Page 157.

The following ordinance, after being twice read, was enacted by the following vote, to-wit: Ayes, Mess. Baer, Brotherton, Vargason, Cullen, Higdon, Decker, Noes, None. Viz:

Be it ordained by the Mayor and Common Council of Owensboro, Ky.:

That the Cumberland Telephone Company its successors and assigns, is authorized and hereby granted the right to erect and maintain upon the public streets and alleys of said city any number of Telephone poles of proper size, straight and shaved, smooth, set plumb and kept erect, and any number of wires thereon with the right to connect such

The grantee under that ordinance at once proceeded to erect its plant and to place its poles and wires upon the streets and it and its successors and assigns have ever since maintained and operated a telephone system. The city

wires with the building when telephone stations are established, provided such poles shall be located and kept so as not to interfere with the travel upon said streets or alleys or the substantial use thereof by the inhabitants of said city.

SEC. 2. That the said Cumberland Telephone Company shall erect only one line of poles on a street except for the length of one block on the street upon which the exchange building may be located, and where the wires of said company enter such exchange building the said company shall have the right to erect and maintain its poles on both sides of such streets and the lowest wire of said telephone company shall not be less than twenty-five feet from the ground, except where such wires enter the exchange building or telephone stations.

Nothing in this ordinance contained shall be construed as an exclusive right to said company to erect and maintain poles upon the streets and alleys of said city, and no obstruction shall be placed by said company to the erection and maintenance of poles by any other person or company. Such company shall enjoy such rights in common with all other persons or companies, to whom said city may see proper to extend the same right.

SEC. 3. The said telephone company shall repair all streets and alleys it may enter upon and use for the purpose herein provided, which by the acts of said company or persons in its employ shall have become injured or damaged or have made unsafe.

All proper precautions and safeguards shall be used to prevent such use from becoming either injurious or annoying to the inhabitants of said city, and should any damage or injury result to any person or property by reason of the erection and maintenance of such poles, or the failure to keep the streets and alleys in repair as herein required, and the said city shall be held liable by reason thereof, such company shall pay all damages and costs resulting therefrom to the parties injured, or to the city if paid by her.

SEC. 4. The rights and privileges hereby granted to said telephone company are upon the terms, and conditions following, viz: That said company shall furnish free of charge one telephone for each engine or hose house, now erected or which may hereafter be erected by said city, one for police head-quarters, and one for the mayor's office

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Statement of the Case.

has used the company's poles for the maintenance of its fire alarm service, and has had the benefit of a free public telephone service for municipal purposes.

In January, 1909, the city council passed an ordinance requiring the telephone company to remove from its streets and alleys all of the poles and wires "within a reasonable time after the passage of the ordinance,” and upon failure to so remove, the mayor was directed to have them removed. This was, however, subject to a provision, "that said company shall have the right to purchase from the said city a franchise authorizing it to maintain said poles and wires and use same as provided under the laws of the State, upon proper conditions to be prescribed by an ordinance to be passed upon request of said company to the common council of said City."

This bill was filed for the purpose of enjoining the enforcement of this ordinance, the contention being that it was an impairment of the company's contractual property rights in the streets, and, as such, in contravention of the contract and due process clauses of the Constitution of the United States. Upon a final hearing the court below sustained the bill and permanently enjoined the enforcement of the repealing ordinance.

making at this time only two such telephones to be furnished by said company for the use of the city, shall be kept in good order for constant use by said company.

Said company shall also allow the city the exclusive use of two feet of one arm on each pole for its fire alarm telegraph; The fire alarmı telegraph poles of the city may be used by said company for its wires provided such wires be kept two feet from the said fire alarm telegraph wires, and such poles used by the said telephone company shall be replaced by it when needed.

SEC. 5. All poles of said telephone company shall be set close to the inner side of the sidewalk curbing.

SEC. 6. This ordinance may be altered or amended as the necessities of the city may demand.

This ordinance shall be in force from and after its passage."

Argument for Appellant.

230 U. S.

Mr. R. S. Todd and Mr. George W. Jolly for appellant: Under the Kentucky Statutes §§ 555 and 556, the consolidation of two or more corporations into one corporation terminates the corporate existence of each constituent corporation at the date of such consolidation. Shields v. Ohio, 95 U. S. 319, 323.

A grant by a municipality to a telephone company of a right to occupy the streets and alleys of the city, for putting up poles and wires and conducting a telephone business, made under a power to "regulate the streets, alleys and sidewalks, and all repairs thereof," is limited in its duration to the corporate life of the company, under its charter at the time of the grant, where no time is fixed for its duration in the ordinance making the grant. Street Ry. Co. v. Birmingham, 79 Alabama, 465; Water Co. v. Boise City, 123 Fed. Rep. 232; Owensboro v. Cumberland Telephone Co., 174 Fed. Rep. 739, 752; Citizens' St. Ry. Co. v, Detroit Railway, 171 U. S. 48; Railway Co. v. Logansport, 114 Fed. Rep. 688; Mercantile Trust Co. v. Denver, 161 Fed. Rep. 769, 771; Oregon Ry. Co. v. Oregonian Ry. Co., 130 U. S. 26; Rock Island v. Central Telephone Co., 132 Ill. App. 248; Rockwith v. State Road Bridge Co., 145 Michigan, 455; Snell v. Chicago, 133 Illinois, 413, 432; State v. Cape Girardeau R. R. Co., 207 Missouri, 85; State v. Scott Co. Ry. Co., 207 Missouri, 54; St. Clair Turnpike Co. v. Illinois, 96 U. S. 63; Toll Roads v. People, 21 Colorado, 429; Virginia Canon Road Co. v. People, 22 Colorado, 249; Wyandotte Electric Co. v. Wyandotte, 124 Michigan, 43, 47.

Under the provisions of the act of the legislature of the State of Kentucky creating a new charter for the City of Owensboro, in 1882 and in force when the grant in question was made, the power of amendment and repeal was given and reserved to the city, and the grant to the appellee was necessarily made subject to this power. Section 10, 1 Acts Kentucky, 1881, pp. 817-856; Kentucky Statutes (1909),