ON PETITION FOR REHEARING. The appellee has pressed us to consider and apply the rules stated in the following cases: Toronto Ry. Co. v. City ofToronto (1906), 37 Can. S.C. 430, affirmed Privy Council, Law Reports Appeal Cases (1907), p. 315 (Eng.); Turners Falls FireDist. v. Millers Falls etc. (1905), 189 Mass. 263, 75 N.E. 630; Georgia Ry. Co. v. Decatur (1923), 262 U.S. 432, 67 L. Ed. 1065, 43 S. Ct. 613; and Georgia Ry. Co. v. College Park (1923), 262 U.S. 441, 67 L. Ed. 1074, 43 S. Ct. 617. The above cases involve rights and obligations arising out of franchises, which are in the nature of special privileges conferred by the government, while the contract with which we are concerned is one entered into by the city in its proprietary capacity.
In its petition for a rehearing the appellee presents two propositions. It is first asserted that "As construed by this court, the annexation ordinances add to appellee's burden 9. of performance and thereby substantially impair the obligation of appellee's contract." We did not construe the annexation ordinances; we construed the contract. An ambiguous contract is not impaired by a construction which gives effect to the intentions of the parties.
It is next asserted that "If the true theory upon which the case ought to be tried is whether the areas *Page 472 annexed were only the `city's reasonable growth,' the case 10. should be remanded for further proceedings." In support of the latter proposition the appellee submitted a supplemental statement of facts reciting that the federal project referred to in the principal opinion has been completed and that it has dwelling units for the accommodation of not less than 350 families.
The appellant responded with another supplemental statement of facts. From the latter it appears that by the annexation ordinances the area of South Bend was increased from 19.82 to 20.44 square miles; and that of the 350 dwelling units provided in the federal project 93 are in the annexed areas, of which only 33 are occupied. The appellee has since admitted the facts stated in the appellant's supplemental showing. We are not persuaded that we would be justified in ordering a new trial.
The petition for rehearing is denied.
NOTE. — Reported in 39 N.E.2d 439.