230 U.S.

Argument for Appellant.

§ 570; Kentucky Constitution, § 190; Gas Co. v. Des Moines, 44 Iowa, 508; Greenwood v. Freight Co., 105 U. S. 13; Griffin v. Kentucky Ins. Co., 3 Bush (Ky.), 592; Hager v. Walker, 128 Kentucky, 1; Hopkins v. Swansea, 4 M. & W. 621; City Ry. Co. v. Louisville, 8 Bush, 420; Presbyterian Church v. New York, 5 Cowan, 532; Southern Telephone & Telegraph Co. v. Richmond, 98 Fed. Rep. 672; S. C., 103 Fed. Rep. 31; Stuyvesant v. New York, 7 Cowan, 585; Vanderbill v. Adams, 7 Cowan, 349; Cooley's Const. Lim. (5th ed.) 196, 240; Dillon on Mun. Corp. §§ 245–573; 23 Cyc. 1142, and cases cited in note 57.

Power to repeal or modify the ordinance of December 4, 1889, existed not only by the provisions of § 10 of city charter of 1882, but also under the general reservation act of February 14, 1856, carried into Kentucky Statutes as § 1987; it also existed by reason of the acceptance of the present constitution adopted in 1891, by appellee, January 31, 1896, § 3 of which provided that every grant of a franchise, privilege or exemption, shall remain subject to revocation, alteration or amendment.

In the absence of express legislative authorization a municipality cannot make a perpetual grant to the use of the streets and thoroughfares of the city. Street Ry. Co. v. Birmingham, 79 Alabama, 465; Street Ry. Co. v. Detroit Railway, 171 U. S. 48; Railway Co. v. Logansport, 114 Fed. Rep. 688.

Public grants should be construed liberally in favor of the public and strictly against the grantee; nothing passes by implication. Charles River Bridge Case, 11 Peters, 420; Fertilizing Co. v. Hyde Park, 97 U. S. 666; Greenwood v. Freight Co., 105 U. S. 13; Water Company v. Knoxville, 200 U. S. 33; Minturn v. Larue, 25 Howard, 43, 50; Oregon Ry. Co. v. Oregonian Ry. Co., 130 U. S. 26, 30; Thomas v. Railroad Co., 101 U. S. 71; Turnpike Co. v. Illinois, 96 U. S. 63.

Where there has been a previous litigation between the

same parties relative to the same cause of action, the judgment of the court therein places the matter at rest forever between the parties thereto and their privies. Bigelow on Estoppel, 72, 73, 152; Black on Judgments, §§ 720, 731; Case v. Beauregard, 101 U. S. 688; Coffey v. United States, 116 U. S. 436; Davis v. McCorkle, 14 Bush (Ky.), 754; Frances v. Wood, 81 Kentucky, 22; Freeman on Judgments, §§ 249, 270; Hanley v. Donoghue, 116 U. S. 6; Hardwick v. Young, 110 Kentucky, 504; Henderson v. Henderson, 3 Hare, 115; Water Co. v. Knoxville, 200 U. S. 33; Lyon v. Perin Mfg. Co., 125 U. S. 700; Martin v. Evans, 85 Maryland, 8; Rex v. Duchess of Kingston, 20 Howell's St. Tr. 355; Van Fleet on Former Adjudication, §§ 37, 40; Baker v. Cummings, 181 U. S. 117-124-5; S. P. R. Co. v. United States, 168 U. S. 48, 49, 50.

It is the judgment or decree of the court that settles the matters in controversy and conclusively fixes the rights of the parties. The opinion of the judge or chancellor giving his reasons therefor, "is no part of the judgment itself." Durant v. Esser Co., 7 Wall. 107, 110; Case v. Beauregard, 101 U. S. 692; Freeman on Judgments, § 249, and cases cited.

Mr. William L. Granbery, with whom Mr. Clarence M. Finn and Mr. Hunt Chipley were on the brief, for appellee.

MR. JUSTICE LURTON, after making the foregoing statement, delivered the opinion of the court.

1. That the right conferred by the ordinance involved is something more than a mere license, is plain. A license has been generally defined as a mere personal privilege to do acts upon the land of the licensor of a temporary character, and revocable at the will of the latter unless, according to some authorities, in the meantime expenditures contemplated by the licensor when the license was given,

have been made. See Greenwood Lake & P. J. Railroad v. New York &c. Railroad, 134 N. Y. 435, 440; Trustees of Southampton v. Jessup, 162 N. Y. 122, 126.

That the grant in the present case was not a mere license is evident from the fact that it was upon its face neither personal, nor for a temporary purpose. The right conferred came from the State through delegated power to the city. The grantee was clothed with the franchise to be a corporation and to conduct a public business, which required the use of the streets, that it might have access to the people it was to serve. Its charges were subject to regulation by law and it was subject to all of the police power of the city.

That an ordinance granting the right to place and maintain upon the streets of a city poles and wires of such a company is the granting of a property right, has been too many times decided by this court to need more than a reference to some of the later cases: Detroit v. Detroit Street Railway Co., 184 U. S. 368, 395; City of Louisville v. Cumberland Telephone and Telegraph Co., 224 U. S. 649, 661; Boise Water Co. v. Boise City, opinion just handed down, post, p. 84. As a property right it was assignable, taxable and alienable. Generally it is an asset of great value to such utility companies and a principal basis for credit.

2. The grant by ordinance to an incorporated telephone company, its successors and assigns, of the right to occupy the streets and alleys of a city with its poles and wires for the necessary conduct of a public telephone business, is a grant of a property right in perpetuity, unless limited in duration by the grant itself or as a consequence of some limitation imposed by the general law of the State, or by the corporate powers of the city making the grant. Detroit v. Detroit Street Railway, supra; Louisville v. Telephone Co., supra; People v. O'Brien, 111 N. Y. 1, 42; Woodhaven Gas Light Co. v. Deehan, 153 N. Y. 528; Mobile v. L. & N. VOL. CCXXX-5

Railroad Co., 84 Alabama, 115; Town of Arcata v. Arcata Railroad Co., 92 California, 639; Hudson Tel. Co. v. Jersey City, 49 N. J. L. 303; Dillon Mun. Corp., 5th ed., § 1265; Nebraska Telephone Co. v. Fremont, 72 Nebraska, 25, 29; Plattsmouth v. Nebraska Tel. Co., 80 Nebraska, 460, 466. If there be authority to make the grant and it contains no limitation or qualification as to duration, the plainest principles of justice and right demand that it shall not be cut down, in the absence of some controlling principle of public policy. This conclusion finds support from a consideration of the public and permanent character of the business such companies conduct and the large investment which is generally contemplated. If the grant be accepted and the contemplated expenditure made, the right cannot be destroyed by legislative enactment or city ordinance based upon legislative power, without violating the prohibitions placed in the Constitution for the protection of property rights. To quote from a most weighty writer upon municipal corporations, in approving of the decision in People v. O'Brien, supra, a decision accepted and approved by this court in Detroit v. Detroit Street Railway, supra-"The grant to the Railway Company may or may not have been improvident on the part of the municipality, but having been made and the rights of innocent investors and of third parties as creditors and otherwise having intervened, it would have been a denial of justice to have refused to give effect to the franchise according to its tenor and import, when fairly construed, particularly, when the construction adopted by the court was in accord with the general understanding. In the absence of language expressly limiting the estate or right of the company, we think the court correctly held under the legislation and facts that the right created by the grant of the franchise was perpetual, and not for a limited term only." Dillon on Mun. Corp., 5th ed., § 1265.

3. There seems to have been no general law in Kentucky under which a telephone company could acquire the necessary street easement; nor until the enactment of § 4639-b of the Kentucky Statutes, was there any provision in the general law in regard to the acquisition of such rights in or upon the public roads outside of municipal corporations. In both cases the right to place and maintain poles and wires upon either streets or roads was dependent in the one case upon the municipal power of control over its streets, and in the other upon the power of the county fiscal courts by virtue of their control over county roads.

The original source of power over both streets and highways is the State. But this power of control is generally delegated in some form to the municipalities and county authorities of the State. Thus the county fiscal courts, by § 4306, Kentucky Statutes, are given "general charge and supervision of the public roads," etc. Concerning the power resulting from the grant by the State to control streets or public highways, the Kentucky court, in American Car Co. v. Johnson County, 147 Kentucky, 69, 71, said: "The right to grant a franchise presupposes and is based upon the right of the authority granting the franchise to control the property over which the franchise is granted or which is affected by it. For example, the fiscal court could grant a franchise authorizing the erection of poles along the highways of the county, as the fiscal court had control of the highways. And so, municipal corporations may grant franchises to use the streets and public ways of a city." Again, in Jackson-Hazard Telephone Co. v. Holliday, 143 Kentucky, 149, 150, the court said: "That the fiscal court having, as it did, under section 4306, Kentucky Statutes, the control and supervision of the public roads of the county, had authority before the enactment of section 4679-b of the Kentucky Statutes to grant the company the right to erect its poles along this road in the absence of a statute expressly giving the court such authority, is we