The rule of construction that where, by a statute, or act of the government, or subdivision of same, there is extended a grant, whether of property or of franchise, is construed strictly against the grantee and in favor of the government, as applicable to the construction of the franchise in this case, while not dissenting from same, I am not concurring therein. In the examination I have made of the subject with reference to public service corporations enjoying a franchise in performing services to the public, the rule is generally applied in cases where the question involved was whether the government or subdivision had extended the right, or power, claimed by the holder of the franchise to have been granted. Any power not granted is reserved by the government; any right not extended is retained by the grantor; and the rule of strict construction against the grantee is a protection to the government, and you infer it against the holder of the franchise and in favor of the government, where this question of power, or the exercise of the same, are involved. Likewise, where the government grants property, the extent of the grant is also resolved against the grantee. Of course, in this cause there is a contract with the town of Memphis, and the question of the right to charge the church for water for pipe organ purposes is involved, and in a sense the question of power to charge is involved, measured by the contract; but whether, when the matter of consideration for the grant in favor of the city, or in favor of some other person claiming the right through the city's dispensation, is involved, I am not wholly prepared to say that the rule of strict construction against the grantee, though it has its force, applies.
I think, however, that the franchise contemplates free water to churches for the life of the franchise consistent with the legitimate needs and purposes of the particular church. If the language, "The grantee herein shall furnish water to all churches free during the period of this franchise for the legitimate use of their church buildings for religious purposes," had been used, it would mean no less and no more that the actual language "churches free," as used in this franchise; and to attempt to limit this language to "baptismal" and so-called "domestic" purposes is strained. I think what is contemplated by the contract is the free use of water in the use of the church property for legitimate purposes for the period of said franchise, and that the use of a pipe organ is a legitimate purpose and contemplated by said contract, and the rule of parol proof for the purpose of interpreting its meaning as applied to the character of testimony in this record would not apply.
While not dissenting for the reason stated from the holding as to the application of the rule of strict construction to the franchise, however, I wholly concur in the disposition of the cause on the ground stated by me. *Page 986