dissenting.
This case presents for decision the single but very important question whether the City of Owensboro, Kentucky, by ordinance passed on June 3, 1889, granted to the Owensboro Water Works Company a franchise renewable indefinitely and therefore in effect perpetual or only a franchise for twenty-five years “to maintain, complete and operate” water works in that city.
A perpetual right to the use of the streets of a city is such a serious burden upon a community that, though very reluctant to do so, I am impelled by an imperative sense of duty to place on record my reasons for concluding that the construction given by a majority of the court to the grant involved in this case is a mistaken one which can be reached only by violating two rules of construction which this court has repeatedly declared to express “sound doctrine which should be vigilantly observed and enforced.”
*175The facts essential to an understanding and to a determination of the claim made in the record are as follows:
On the ninth day of September, 1878, a corporation named the “Owensboro Water Company” was incorporated under the laws of the State of Kentucky, and, on the next day, the City of Owensboro granted to that corporation the right and franchise to construct and operate in that city a water works plant, using the streets and alleys in the customary manner.
Section 1 of this ordinance grants to the Water Company the right to construct and operate water works within the city “for the duration of the said Company.”
After many details as to construction, service and rentals of hydrants by the city,§ 13 provides: “The rights, privileges and franchises hereby granted to and vested in said company shall remain in force and effect for twenty-five years from the passage of this ordinance.” Thus it is too clear for discussion that the expression “for the duration of the said Company ” in § 1 of this ordinance of September 10, 1878, was deemed, both by the city granting it and by the company accepting it; as meaning a term of twenty-five years.'
’ The Water Company constructed a water works plant and operated it until the year 1889, when for the purpose of making larger capital available, a new corporation, bearing the name “Owensboro Water Works Company” was organized, with' a charter, which contained in paragraph 6 this provision: “The time of commencement of the said corporation is the first day of June, in the year One Thousand Eight Hundred and Eighty-nine, and it shall terminate twenty-five years' thereafter, subject to such extensions of its term of existence as by law provided.”
On June 3d, 1889, the council of the City of Owensboro, passed an ordinance, which was accepted by the new corporation, which, after reciting that the new corporation desired to purchase the water works , of the old one, to*176gether with its existing contracts for supplying the city and its inhabitants with water; that the new company desired a grant of a franchise and license “to maintain, complete and operate water works in the city” and that the city should accept the new company as the successor of the old to the contracts for hydrant rentals, proceeds to ordain:
Section 1. That the franchise and license to maintain, complete and operate water works in the City of Owensboro “are hereby granted to the Owensboro Water Works Company, • . . . and to its successors and assigns, for and during'the existence of the said corporation;”
Section 2. That the new company shall be accepted by the city “as the successor to the contract for hydrant rental now existing between the City of Owehsboro and the Owensboro Water Company as'fully as if such existing contracts had been originally made by the City of Owensboro with the said The Owensboro Water Works Company, . . . without the intervention of the said Owensboro Water Company.”
The Kentucky General Statutes of 1883) c. 56, § 7, p. 548, under which the Water Works Company was organized in 1889, contained this provision:
“Corporations for the construction ■ of any work of internal improvement may be formed to endure for fifty years; those formed for othér purposes shall not.exceed twenty-five years in duration; but in either case they may be renewed from time to time for periods not greater than was at first permissible, if three fourths of the votes cast at any regular election held for that purpose shall be in favor of such renewal.”
While the plaintiff in error disputes it, we conclude that it is clear that, by appropriate action taken on the sixth of May, 1914, the Water Works Company amended its articles of incorporation by amending article 6 thereof (hereinbefore quoted) so that, as amended this section *177became: “ The time of the commencement of said corporation is the first day of June, 1889, and it shall terminate twenty-five years' thereafter, subject to such extensions of its term as by law provided, and same is now, by these amended articles of incorporation, extended for the period of twenty-five years from and after the 1st day of June, 1914.”
Since confessedly the Water Works Company is not a corporation organized for the construction of “any work of internal improvement,” if we read together the charter of the Water Company dated May 30,1889, the ordinance-of the City of Owensboro dated June 3d, 1889, and the statute of Kentucky, which we have quoted, limiting the duration of corporations to twenty-five years, wé see that the question for decision is narrowed to this, viz:
Does the .grant to the Water Works Company of the franchise and license “to maintain, complete and operate” water works “for and during the existence of the said corporation” confer on the company a franchise in effect perpetual to use the streets of the city for water works purposes, or is it limited to twenty-five years?
The limitation of the grant to the twenty-five years “duration” of the corporation would be beyond question were it not for the provision of the charter that the termination of the life of the company after 25 years shall be subject to such extensions as are provided for by law and for the provision of the statute quoted “that they [such corporations] may be renewed from time to time for periods not greater than was at first permissible” — in this case for an additional twenty-five years. The conclusion of the majority of the court is that this authority given to the stockholders to renew “the duration” of the corporation (a discretionary power which is found in the charter, not in the grant, and which might or might not be exercised) expanded and extended the expression of the grant “during the existence of the corporation” so as to make it as if it read “ during the existence of the said cor*178poration” and also for such “renewals” of such existence as the stockholders of the company may, by appropriate action, favor some time in the future — thereby making the grant in effect á perpetual one.
The two rules for the construction of such grants, which have been referred to, have been firmly established by decisions of many courts, but no court' has been more definite and resolute than this court has been in the emphasis, with' which it has announced and applied them. These rules are: . . ’
(1) As announced by this court most clearly, and with full consideration of the authorities, in Blair v. Chicago, 201 U. S. 400, 463: “ It is a firmly established rule . . . that one who asserts private rights in public property under grants of the character of those under consideration [city ordinances], must, if he would establish them, come prejpared to show that they have been conferred in plain terms, for nothing passes by the grant except it be clearly stated or necessarily implied.” And the court gives as the sound reason for this rule that: “It is matter of common knowledge that grants of this character are usually prepared by those interested in them, and submitted to the legislature with a view to obtain from such bodies the most liberal grant of privileges which they are willing to give. This is one among many reasons why they are to be strictly construed” (p. 471). And from Cooley on Constitutional Limitations is quoted with approval this statement: “The just presumption . . . in every such case is that the State has granted , in express terms all that it designed, to grant at all. . . . This is sound doctrine, and should be vigilantly observed and enforced.” (p. 471). 'Continuing to give to the rule the emphasis which it so richly deserves, the opinion continues and quotes from earlier decisions of this court declaring that “any ambiguity in the terms of the grant must operate against the corporation and in favor of the public, and the corporation can *179claim nothing that is not clearly given by the law. . . . The principle is this, that all rights , which are asserted against the State must be clearly defined, and not raised by inference or presumption” (p. 472). The discussion concludes with the statement, quoted from Slidell v. Grandjean, 111 U. S. 412, that it is a wise doctrine because “it serves to defeat any purpose concealed by the skillful use of terms, to accomplish something not apparent on the face of the act, and thus sanctions only open dealing with legislative bodiés” (p: 473)-.
(2) The second rule to-which we have referred finds clear expression in Chicago v. Sheldon, 9 Wall. 50, 54, as follows: “In cases where the language used by the parties to the contract is indefinite or ambiguous, and, hence, of doubtful construction, the practical interpretation by the parties themselves is entitled to -great, if not controlling, influence. The interest of each, generally, leads him to a construction most favorable to himself, and when the difference has become serious,, and beyond amicable adjustment, it can be settled only by the arbitrament of the law. But, in an executory contract, and where its execution necessarily involves a practical construction, if the minds of both parties, concur, there can be no great danger in the adoption of it by the court as the true one.”
This rule was approved in terms in Topliff v. Topliff, 122 U. S. 121, and it has been repeatedly announced as the settled doctrine of this court.
Applying these rules in the" reverse order of their statement! shall now give my reasons for concluding that the interpretation by the parties'to it of the grant under consideration limits it to a life of twenty-five years.
The ordinance of 1878, in the part of it assumed by the Water Works Company by its acceptance of the ordinance of 1889, provided that “If ~. . . extensions of pipe shall be made by said company during the said term of twenty-*180five years at the instance or request of said city,” the city should be bound to rent and pay $50 a year for one hydrant at each street intersection. Under this provision, beginning on October 6, 1890 (a little more than a year after the grant was made), and continuing, certainly as the record- shows, until September 16, 1895, the city, by ordinance made seven distinct demands upon the Water Works Company to lay additional pipes in the streets, -and in each ordinance provided: “The City of Owensboro hereby rents of the said Water Company thé above named hydrants for the urtexpired term of the franchises of the said Water Company,” and promises to pay, etc. Here is a plain declaration, seven times repeated, by the city, the first made, as we have stated, very shortly after the grant was made, that the city understood that the grant was not an unlimited or perpetual one, for it promises to pay only “for the unexpired term of the franchises of the said Water Company.” By the acceptance of each one of these seven ordinances, the Water Company just as plainly assented to this construction of the grant. This is highly persuasive against the Water Company because such construction was so distinctly against its interest. The record shows that these ordinances bear dates as follows: (1) October 6, 1890; (2) Februáry 2, 1891; (3) November 7,-1892; (4) December 5, 1892; (5) October 1, 1894; (6) May 7, 1894, and (7) September 16, 1895.
• The most persuasive comment I think that can bé made upon this construction of this grant by both of the parties to it is contained in the last sentence of the quotation we made from Chicago v. Sheldon, supra, “But, in an executory contract, and where its execution necessarily involves a practical construction, if the minds of both parties concur, there can be no great danger in the adoption of it by the court as the true one.”
But much more is to be found in the record as to what the parties, particularly as to what the *181Water Works Company, thought was the term of this grant.
On the twenty-first day of September, 1903, -the Water Works Company instituted a suit in the Circuit Court of the United States for the Western District of Kentucky, in an effort to enjoin the city from issuing bonds and spending money for the purpose of constructing a municipal water plant, and in the bill filed in the case it alleges that it is a corporation, with power conferred upon it to supply the defendant city and its inhabitants with water “for the fixed period of twenty-five years from the date of its incorporation:” it alleges that the grant to it was “extended during the whole period of its corporate existence, a period of twenty-five years from the 1st of June, 1889:” and that by the contract created by the ordinance of June 3d, 1889, as well as by the contracts existing between the city and the earlier company the Water Works Company “acquired and now has conferred upon and vested in it the sole and exclusive right, franchise and privilege during the period of twenty-five years from and after June 1st, 1889, to maintain, complete and'operate water works in the City of Owensboro,” etc. Again it alleges in this bill that the said contract conferred upon it the exclusive privilege of furnishing water through the hydrants to the said city for twenty-five years from the first of June, 1889; that it has in all things complied with the requirements of the ordinance of 1889 and “that it is ready, willing and able to continue to carry out its said contract and to continue to perform and do all the things of it required therein until the expiration of said contract on June 1st, 1914” Yet again it alleges that the city did by the ordinance aforesaid (of 1889), make and enter into a valid and binding contract with this complainant, wherein and whereby an obligation was created on the part of this complainant to lay pipes, conduits and hydrants in and along the streets and to furnish for the period of twenty-five years from the first of *182June, 1889, water for public and private purposes, etc., and it solemnly avers that tbe purpose of the city to establish a municipal water works would result in a violation of this contract, which is within-the protection of Section 1, Article 10 of the Constitution of the United States, which prohibits the passage of any law impairing the obligation of contracts.
This, elaborate bill filed by the Water Company concludes with the prayer for an injunction, restraining the city “from constructing, equipping-, operating or maintaining, a system, of water works in said city at any time until after the 1st day.of June, 1914 ”
This bill is sworn to by the president of the Water Works Company and significantly enough is signed by the same counsel who sign the bill in the pending case.
But the Water Company, continuing of the same mind as to the meaning of the grant under consideration, in a petition filed in the Circuit Court of Daviess County, Kentucky, almost a year later, on the 27th day of May, 1904, in a case in which the Company was seeking to collect rentals for hydrants, again alleged that by the grant of 1889 the franchise of the Company was “extended during the whole period of its corporate existence, a period of twenty-five years from and after the 1st of June, 1889,” and that this same ordinance “conferred upon and vested in it the sole and exclusive right, franchise and privilege during the period of twenty-five years from and after June 1, 1889, to maintain, complete and operate water works in the city of Owensboro,” etc.
In this petition plaintiff specifically sets up the ordinances to which we have referred, calling upon the Water Company to construct extensions, and which were accepted by the Company, and adds two others of the same purport, one dated May 15, 1899, and one July 25, 1900; alleges that in each of these the city requested the company to extend the. lines and place hydrants “for the. *183unexpired term of the franchise of this plaintiff,” and that within sixty days from the passage of said ordinances it filed its acceptance of them with the clerk of the city.
It is difficult to imagine an interpretation of a contract by the parties to it more specific or controlling than is to be found in the' declarations in these court proceedings, made deliberately and under the advice of counsel.
In the presence of this record I cannot doubt that it was understood and intended in the beginning by the untechnical men of affairs who composed, the city council and by the company that this grant was a limited one, extending for not to exceed twenty-five years from June 1st, 1889, and that this conviction continued in the minds of all the parties concerned in it, finding frequent expression in the conduct of business between them for full fifteen years, certainly until 1904, when the company is found claiming in the courts that the grant expired on June 1, 1914, and therefore I cannot assent to the conclusion that it is in effect a perpetual grant of the right to use the streets of the city, convinced as I am that such result cannot be reached without doing violence to the rule referred to, so firmly established by this court, which has been penetratingly condensed into the expression “Show me what men have done under a contract and I will tell you what it means.” And, I may add, without running also counter to the decision of this court in Tennessee v. Whitworth, 117 U. S. 129, in which it is declared that in construing contracts springing from statuses the words employed are, if possible, to be given the same meaning they had in the minds of the parties to the contract when the statute was enacted.
But, turning now from the interpretation placed upon this ordinance by the parties to it, and confining our attention strictly to the language used in making the grant, let us ask' ourselves whether it can reasonably be said, upon the facts presented by this record, that a franchise *184in effect perpetual was granted in the streets of the city “.in plain terms,” “in express terms,” without “ambiguity,” as is required by the first of the rules for the construction of such grants, which we have seen is so fully - approved by this court.
If the pertinent parts of the grant, of the charter of the company and of the Kentucky statute be written together, we shall have this paragraph: -
The City of Owensboro grants to the company the right to maintain and operate a water works plant during the existence of that corporation, which existence is declared in its charter to commence on June 1st, 1889, and to terminate twenty-five years thereafter, subject to such extensions as the law provides, and is also limited by the state statute, under which it was created, to a duration of twenty-five years, with the privilege of renewal for a like period if a three-quarters vote of its stockholders “shall be in favor of such renewal.”
I cannot doubt that others than skilled lawyers (and we cannot assume that all of the members of the city council were skilled lawyers) reading such a paragraph as this would understand that the existence of the fife of the Water Works Company, and so of the grant, was for the declared twenty-five year period between the “commencement of the life” of the corporation and the time when it must “terminate.” To give it any other meaning is to magnify the subordinate provision for a possible extension of the life of the corporation so as to make that control the definite, specific, clearly expressed limitation of the charter. But specific should always control general provisions in a contract where they conflict — definite and clearly expressed limitations should, dominate indefinite and discretionary privileges. To declare this grant perpetually renewable is to make its duration dependent upon the discretion of the grantee corporation, to be exercised twenty-five years after the grant was made, and *185it is not difficult to conceive of circumstances under Which the required three-fourths of the stockholders of the company would not favor an extension of its corporate life, — ^ if, for instance, its business were a failing one because of competition with a city owned plant, or if the stockholders differed in opinion as to the wisdom of making a possible sale of its property. This is a result which the court should accept only under sheer coercion — I can designate it by no milder term — of the “plain” “express” and “unambiguous” provision in the grant, and very certainly it is a result which should -not be derived from ingenious construction of a narrow and optional clause in the charter of the grantee (not in the grant) which was probably inserted for the purpose of providing for the contingency of a new. grant to the company, to be made at the expiration of the one for twenty-five years, rather than in an attempt to automatically make an extension of that grant. When to this it is added that the provision for extending the life of the corporation is not to be found anywhere in the ordinance making the grant, which.the councilmén had before them, but only in the charter of the corporation and in the statute of the State, which they probably never saw, I not only cannot bring myself to.assent to the conclusion that, resolving, as we must, every doubt in favor of the public, a franchise in effect perpetual in the streets of the city was given to the Water Works Company “in plain,” “in express” and in “unambiguous” terms, but, on the contrary, I am very clear that the language used in making this grant limits it, as we have seen that all of the parties thought that it limited it, to the term of twenty-five years.
This conclusion has been arrived at without the application of narrow distinctions to the words used in the charter of the Water Company and in the statute of Kentucky. But' sufficient to turn the case, if it be thought a close one, might very well be found in significant distinctions with *186respect to the words used in the provision of the charter of the company, on which the opinion of the majority of the court turns, viz: That the twenty-five year limitation so clearly expressed is “subject to such extensions of its term of existence as by law provided.”
These distinctions are, first, that the state law did not provide for “extensions” of the corporate existence. The most that can be said of the law is that it provided a method by which the stockholders of the company — not the law — might, in their discretion “renew” the charter for an additional term after the expiration of the twenty-five year period which the law provided for. The second distinction is that the authority to “renew” the corporate existence of the company, given by the statute, becomes in the charter, as written by the company, “extensions ... by law provided,” which gives to the corporation the advantage which many courts and writers, have found in the distinction between the right of “extension” and the right of “renewal” of a contract, the latter indicating an intention to resort to a new grant for the future, while the former contemplates “a prolongation, a lengthening out” of a grant previously made. This distinction is perhaps too subtle to serve the ends of substantial justice in, practical affairs, but apparently the authors of the charter which we are considering thought it a refinement which it was worth their while to lay hold upon. Whalen v. Manley, 68 W. Va. 328; Leavitt v. Maykel, 203 Mass. 506, and authorities cited.
The District Court finds its conclusive authority for holding the grant to be in effect a perpetual one in City of Owensboro v. Cumberland Telephone & Telegraph Co., 230 U. S. 58. An inspection of the ordinance there considered shows that there was no attempt whatever in terms to limit the duration of the grant; that no reference was made in the ordinance to the life of the corporation to which the grant was made, and that by express terms the grant *187is declared not to be exclusive and to be subject to alteration and amendment. While it is true that the members of this court differed as to the effect of the provision for alteration and amendment of the ordinance, yet the effect of these distinctions when grouped together is such, it seems to me, as to render the decision in that case wholly inapplicable to an ordinance such as we are considering here.
It may be that the settled conviction which I have that no legislator, congressman, or councilman would knowingly consent to grant perpetual rights in public streets to a private corporation has so darkened my understanding that I cannot properly appreciate the point of view of my associates and the reasons advanced in support of it, but, however this may be, the reasons stated in this opinion convince me that the grant under discussion was not in effect a perpetual grant, but was for the period of twenty-five years, which expired on the first day of June, 1914.
Me. Justice Beandeis concurs in this opinion.