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statute to the consolidated company. The constitution (8$ 199 and 200), in providing for the incorporation and consolidation of telephone companies, evidently contemplated, as did the statute, that on this statutory union there should be a transfer of that franchise, right of way or property, which alone gave value to the plant, thereby preserving the investment which had been made, for purposes of private gain and public use. The city itself so construed the general law, and thereupon demanded from the Cumberland Company, as successor of the Ohio Valley Company, the bond for $50,000 called for in the ordinance of August 17, 1886. The company, in pursuance of the collateral contract contained in the ordinance, and of the requirements of the consolidation statute, carried the police and fire wires of the city free of charge. With the knowledge and acquiescence of the city, and in reliance on the statutory conveyance of the street rights, the Cumberland Company, at an expense of more than a million dollars, erected many new poles, laid additional conduits and strung miles of wire in extending and improving the telephone system. This action of the council could not enlarge the charter grant, but did operate to estop the city (Boone County v. Burlington & M. R. R., 139 U. S. 684, 693) from claiming that the ordinance was inoperative and it also prevented the Council from denying that the Cumberland Company had succeeded to every right and obligation of the Ohio Valley Company.
5. The plaintiff in error makes the further contention that its general demurrer should have been sustained and the bill dismissed because the original grant of street rights, having been indefinite as to time, was either void ab initio, or revocable at the will of the General Council, or that it expired in 1893 when (Ky. Stat., 1909, $ 2742) Louisville was made a city of the first class with new and enlarged power. In support of this proposition numerous
decisions are cited, in some of which it appeared that a State had chartered a public utility corporation, but the city by ordinance had given an exclusive or perpetual grant of a street franchise which was held to be void because made in excess of the statutory power possessed by the municipality. In others the company had been incorporated for thirty years, and the street right was held to have been granted only for that limited period. In others it was decided that such privileges terminated with the corporate existence of the municipality through whose streets the rails and tracks were to be laid. Detroit Citizens' Street Railway v. Detroit Railway, 171 U. S. 48, 54; St. Clair County Turnpike Co. v. Illinois, 96 U. S. 63; Blair v. Chicago, 201 U. S. 400; 3 Dill., Mun. Corp., $8 1265–1269.
None of these decisions are applicable to a case like the present, where the Ohio Valley Telephone Company, with a perpetual charter, has received, not from the municipality, but from the State of Kentucky, the grant of an assignable right to use the streets of a city which remains the same legal entity, although by a later statute it has been put in the first class and given greater municipal powers. Vilas v. Manila, 220 U. S. 345, 361.
In considering the duration of such a franchise it is necessary to consider that a telephone system cannot be operated without the use of poles, conduits, wires and fixtures. These structures are permanent in their nature and require a large investment for their erection and construction. To say that the right to maintain these appliances was only a license, which could be revoked at will, would operate to nullify the charter itself, and thus defeat the State's purpose to secure a telephone system for public use. For, manifestly, no one would have been willing to incur the heavy expense of installing these necessary and costly fixures if they were removable at will of the city and the utility and value of the entire plant
Opinion of the Court.
be thereby destroyed. Such a construction of the charter cannot be supported, either from a practical or technical standpoint.
This grant was not at will, nor for years, nor for the life of the city. Neither was it made terminable upon the happening of a future event, but it was a necessary and integral part of the other franchises conferred upon the company, all of which were perpetual and none of which could be exercised without this essential right to use the streets. The duration of the public business in which these permanent structures were to be used, the express provision that franchises could be mortgaged and sold, the nature of the grant, and the terms of the charter as a whole, compel a holding that the State of Kentucky conferred upon the Ohio Valley Telephone Company the right to use the streets to the extent and for the period necessary to enable the company to perform the perpetual obligation to maintain and conduct a telephone system in the city of Louisville. Such has been the uniform holding of courts construing similar grants to like corporations. Milhau v. Sharp, 27 N. Y. 611 (1863); Hudson Telephone Co. v. Jersey City, 49 N. J. L. 303; Mobile v. L. & N. R. R., 84 Alabama, 122; Seattle v. Columbia & P. S. R. R., 6 Washington, 379, 392; People v. Deehan, 153 N. Y. 528. The earlier cases are reviewed in Detroit St. R. R. v. Detroit, 64 Fed. Rep. 628, 634, which was cited with approval in Detroit v. Detroit St. R. R., 184 U. S. 368, 395, this court there saying that “Where the grant to a corporation of a franchise to construct and operate its road is not, by its terms, limited and revocable, the grant is in fee.”
The right to conduct a telephone exchange and to use the streets of the city of Louisville, which had been vested by law in the Cumberland Telephone & Telegraph Company, could not be impaired or forfeited by an ordinance of the General Council; nor had it expired by lapse of
time or under any provision of law when the bill was filed. The Circuit Court properly made the injunction permanent, and its decree is
CHOATE v. TRAPP, SECRETARY OF THE STATE
BOARD OF EQUALIZATION OF OKLAHOMA.
ERROR TO THE SUPREME COURT OF THE STATE OF
No. 809. Argued February 23, 1912.—Decided May 13, 1912.
There is a broad distinction between the power to abrogate a statute
and to destroy rights acquired under it; and while Congress, under its plenary power over Indian tribes, can amend or repeal an agreement by a later statute, it cannot destroy actually existing individual
rights of property acquired under a former statute or agreement. The individual Choctaw and Chickasaw Indian had no title or en
forcible right in tribal property, but Congress recognized his equitable interest therein in the Curtis Act of June 28, 1898, 30 Stat. 505, and offered to give to him in consideration of his consenting to the distribution an allotment of non-taxable land; and the acceptance of the patent by each member of the tribe was on the consideration of relinquishment of his interest in the unallotted
tribal property. A patent for an Indian allotment containing an agreement assenting
to the plan of distribution, like a deed poll, bound the grantee, although not signed by him, and the benefits constituted the con
sideration for the rights waived. The tax exemption in the patents for Indian allotments under the
Curtis Act was not a mere safeguard against alienation, and did not fall with the removal of restrictions from alienation by the act of
May 27, 1908, 35 Stat. 312. The removal of restrictions on alienation of Indian allotments falls
within the power of Congress to regulate Indian affairs, but the provision for non-taxation is a property right and not subject to action by Congress.
The non-taxation provisions as to Indian allotted lands in the Curtis
Act gave a property right to the allottees, and was binding on the
State of Oklahoma. Patents issued in pursuance of statute are to be construed in con
nection with the statute, and those issued to allottee Indians under the Curtis Act gave the allottees as good a title to the exemption from taxation as to the land itself; and the tax exemption constituted property of which the patentees could not, under the Fifth
Amendment, be deprived without due process of law. An exemption from taxation, of land allotted to Indians in pursuance
of an agreement to distribute the tribal property, will not be construed strictly, as a gratuitous exemption to a public service corporation is ordinarily construed, but will be construed liberally under the
rule that all contracts with Indians are so construed. The tax exemption provisions of the patents to Indian allottees under
the Curtis Act attached to the land for the limited period of the
exemption. Indians are not excepted from the protection guaranteed by the Fed
eral Constitution, but their rights are secured and enforced to the same extent as those of other residents or citizens of the United
States. Tiger v. Western Investment Co., 221 U. S. 286, distinguished as not
involving property rights but only the right of Congress to extend the period of disability to alienate the allotments, and as not intimating that Congress could by its wardship lessen any rights of property actually vested in the individual Indian by prior laws or
contracts. Oklahoma by its constitution has recognized the tax exemption in the
patents of allottee Indians, and, as a vested right, it cannot be
abrogated by statute. 28 Oklahoma, 517, reversed.
The facts, which involve the taxability of Choctaw and Chickasaw Indian allotted lands in Oklahoma while in possession of the allottees, are stated in the opinion.
Mr. Joseph W. Bailey, with whom Mr. J. F. McMurray and Mr. W. A. Ledbetter were on the brief, for plaintiff in error.
Mr. Charles West, Attorney General of the State of Oklahoma, for defendants in error.