Dissenting Opinion.
Henley, C. J.I can not agree with the opinion of the majority of the court as to the construction to be given to the contract between the parties to this action. It is true that there can be no controversy concerning the law as stated in the prevailing opinion to the effect that where,doubt exists as to the construction to be given a contract in which a municipal corporation is a party, that the doubt shall be resolved in favor of the city. But, in the case at bar, the construction of the contract for which I contend is the direct effect of giving the words employed therein their plain, ordinary meaning, thus eliminating any reason for resolving any part of the contract in favor of one party more than another. The right granted the city in the contract is the right to purchase after a certain period. It is a right limited as to time and plan, and must be pursued under the terms of the contract. The water company’s rights do not, under the contract, end at the expiration of fifteen years. The right granted w'as for fifty years, and it is not provided that the city could purchase at the expiration of fifteen years, but it is provided that after the expiration of fifteen years, by doing certain things, the city might purchase the property. The failure of the city to give notice at any special time did not forfeit its rights which it could, under the procedure marked out by the contract, enforce any time during the thirty-five years following the expiration of the fifteen years. The water company’s rights were not for fifteen years, but for fifty years. Its ownership and control were as absolute at the expiration of forty years as at the *201expiration of one year, unless the city proceeded under the contract to purchase the property. The city was not required to proceed to purchase the property after fifteen years. It lost no right under the contract by refusing to do so. Its right to purchase was not forfeited, and such right extended over the whole period of thirty-five years. The contract between the parties to this action is not like a contract creating a tenancy which could he terminated by notice at the expiration of a certain time, or on or before a certain time. If likened to a tenancy, then the term of the lessee must have been for fifty years, and the right to terminate or the option to' terminate must he after fifteen years of the tenancy has expired. I think it is the plain meaning of the contract between the parties to this action that the right to purchase did not accrue until after the expiration of fifteen years, and all the acts necessary to he performed by the city in order to acquire the. ownership of the property must he performed after the fifteen-year period has expired. Any other construction would give to the city the right to do and perform the most essential part necessary to accomplish its purpose prior to the expiration of the fifteen-year period, within which time, under the plain construction of the contract, it had no right to proceed. It is also plain to me that the parties intended that the construction here contended for should obtain; and it is also plain that the best interests of both parties to the contract called for such a construction. The taxpayers of the city of Valparaiso had a right to know the exact time when their agents, the members of the city council, would have a right to purchase the water company’s property under this contract.
Under the construction given to the contract in the prevailing opinion, any city council elected prior to the expiration of the fifteen-year period could give the notice provided for under this contract. It seems that the best interests of the citizens of the city of Valparaiso would he subserved by holding, as the plain meaning of the words, I think, war*202rant, that no city council elected prior to the expiration of the fifteen-year period would have the right to exercise any power or do anything towards the purchase of the waterworks under this contract.
I think the judgment should be reversed.