Mahlon Pitney

“ Since the case proceeded to judgment upon the pleadings, it is elementary that every uncontradicted allegation of fact by the unsuccessful party must be taken as true. This applies to the denial by defendant that either it or the first New York company accepted the ordinance, the averment that the latter company declined to accept it and erected its poles and strung its wires in the streets of the city under another and independent claim of right as plaintiff well knew, and other averments bearing upon the question of acceptance in fact. ”

“ The compensation provided by the ordinance is not a license tax upon the right of the company to do business in the city, but merely a charge against the company for the use of the streets with its poles and wires.'
The contention that the exaction of $100 per annum for the use of the streets was unreasonable was passed by a reference to the previous decision, where it was held (76 S. W. 159, 25 Ky. Law Rep. 637) that the question of the reasonableness of the grant and what was a fair compensation for the servitude was a question for the parties to decide. ”

“ The doctrine of res judicata rests at bottom upon the ground that the party to be affected, or some other with whom he is in privity, has litigated or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction. Southern Pacific R. R. v. United States, 168 U.S. 1, 48, 18 Sup. Ct. 18, 42 L. Ed. 355; Greenl. Ev. §§ 522, 523. The opportunity to be heard is an essential requisite of due process of law in judicial proceedings. ”