dissenting.
The parties to this suit are a Board of Commissioners of an Ohio county and two corporations organized under the law of the> same State, and the jurisdiction of this court, if it exists at all, must be found in the claim that the resolution of the County Commissioners of February 19, 1913, is a law of the State of Ohio which impairs the ob*586ligation of the grant by the Commissioners of February 22, 1892, within the meaning of the Constitution of the United States. This resolution, printed in the margin of the court’s opinion, declares that the Commissioners “contend” that the term of the grant of February 22, 1892, “is an indeterminate one, continuing from day to day, and that said term extends and continues only so long as both parties to said grant . . . agree and consent” and that it may be terminated, at any time by either party to it. The resolution then declares the grant terminated as of the date of the resolution and that the prosecuting attorney of the county be, and he is, directed to take such steps as he may deem necessary to prevent further operation of the railroad on the highway, as provided for by the grant.
The effect of the decision by the Supreme Court of Ohio is that this “contention” of the County Commissioners that the grant is one determinable at the will of either party to it, is sound and that the Commissioners having elected to terminate it the rights of the railway company were at an end. This court reverses this decision of the state Supreme Court and holds that the grant of 1892 was not revocable at will by the County Commissioners, that the resolution of February 19, 1913, in terms revoking it, is invalid and void, and without deciding whether the power of the Commissioners was limited to the granting of such a franchise for twenty-five years and if so whether the grant has expired the court returns the case to the state courts for further proceedings not inconsistent with its opinion.
It is impossible for me to concur in the conclusion thus arrived at by the court and my reasons for dissenting will be briefly stated.
The resolution of February 19, 1913, is in terms simply an expression of the “contention” of the County Commissioners as to the legal effect of the grant of 1892, coupled *587with notice of their election to terminate the same agreeably to their interpretation of it and with direction and authority given to the prosecuting attorney of the county to test in the courts the validity of the position asserted by the Board.
That such a resolution to apply to the courts of the country to establish an asserted legal right is not a law impairing the obligation of a contract is expressly decided, it seems to me, in Des Moines v. Des Moines City Ry. Co., 214 U. S. 179, and in principle in Defiance Water Co. v. Defiance, 191 U. S. 184. A resolution such as was passed here is the only form in which the Board of County Commissioners could assert, in advance of litigation, its contention as to its rights under the contract, and it is not different in effect from what it would have been if the same contention had been expressed in another form, such as by way of an answer filed in behalf of the Commissioners in a suit brought by the Companies to enforce what they considered to be their rights under the grant. The decision of this court that the obligation of the contract was thus impaired amounts to holding “that whenever it is asserted on the one hand that a municipality [county] is bound by a contract to perform, a particular act and the municipality denies that it is liable under the contract to do so, thereby an impairment of the obligations of the contract arises in violation of the Constitution of the United States. But this amounts only to the contention that every case involving a controversy concerning a municipal contract is one of Federal cognizance, determinable ultimately in this court.” This court in the language quoted has declared such a conclusion to be obvious error in St. Paul Gas Light Co. v. St. Paul, 181 U. S. 142, 149.
These three clear and well reasoned cases seem to me to correctly decide that the court is without jurisdiction to consider this case and that it should be dismissed.
*588But even if we should assume that this court has jurisdiction to decide the case, it, nevertheless, would be impossible for me to concur in the conclusion arrived at.
The resolution of the County Commissioners under discussion does-not, in words, define the term for which the franchise to operate a railroad on the public highway is to continue. The Supreme Court of Ohio holds that it results from this failure to define “in express terms,” “in plain terms,” the duration of the grant that it should be considered an indeterminate one, but this court holds that this failure to clearly define the duration of the grant results in its being a perpetual one, unless it be otherwise limited by constitution or statute.
The rule for the construction of grants such as we have here will nowhere to be fojmd more clearly-or imperatively stated than in the decisions of this court.
In Blair v. Chicago, 201 U. S. 400, 463, a decision obviously rendered upon “great consideration,” it is declared that a corporation which would successfully assert a private right in a public street must come prepared to show that it has been conferred “in plain terms,” “in express terms,” and that any ambiguity in the terms of the grant must be resolved in favor of the public and against the corporation, “which can claim• nothing which is not clearly given.” The sound reason given for this rule is that “grants of this character are usually prepared by those interested in them,” and that “it serves to defeat any purpose concealed by the skillful use of terms, to accomplish something not apparent on the face of the act.” This is declared to be “sound doctrine which should be vigilantly observed and enforced.”
The Supreme Court of Ohio is not less definite in adopting the same rule of construction, saying, in Railroad Company v. Defiance, 52 Ohio St. 262:
“Every grant in derogation of the right of, the public in the free and unobstructed use of the streets . . . *589will be construed strictly against the grantee, and liberally in favor of the public; and never extended beyond its express terms when not indispensable to give effect to the grant.”
What rfesults from the application of this rule to the-grant we are considering?
The fact that two such courts as this one and the Supreme Court of Ohio differ so widely that the one holds the grant on its face to be perpetual, and the other holds it to be determinable at will, is, to me, convincing evidence, that a perpetual grant is not conferred “in plain terms,” “in express terms,” that it is “something not apparent on the face of the grant,” and that, therefore, to give such a construction to the resolution is to find in it a most vital and important provision which “those interested” in obtaining the grant would have been eager to incorporate into it had they thought it possible to obtain consent to it. It is impossible for me to doubt that a proposal to- the County Commissioners to make the resolution read “Resolved, that the right is hereby granted ... to construct, maintain and operate perpetually an electric railroad ... on the State road between Canton and Massillon” would have been summarily rejected by the Commissioners. The public indignation which the making of such a grant would have excited was sufficient protection against its being made “in plain terms” and the rule we have quoted, in iny judgment, should be the protection of the public against such a result being accomplished by construction.
The Supreme Court of Ohio may have been influenced in its decision of this case by the fact that from the time when the deyelópment of the State became such as to make of public importance the terms of grants of street railway rights in the streets and public roads of that State, the General Assembly of the State limited to twenty-five years the term for which such rights might be granted, either *590by county commissioners or by municipal corporations. It is difficult for a man living in such a legal atmosphere with respect to such grants to think in terms of perpetual franchises. (An attempt to remove this restriction from grants by county commissioners was declared unconstitutional by the Supreme Court in Railway Company v. Railway Company, 5 Ohio C. C. (N. S.) 583, affirmed 73 Ohio St. 364.)
The decision of this case by the Supreme Court of Ohio is without written opinion, but it is rested by the court upon its previous decision in East Ohio Gas Co. v. Akron, 81 Ohio St. 33. In that case the City of Akron contended that the franchise granted to the Gas Company, in terms unrestricted as to time, was perpetual, and the Gas Company contended that it was determinable at the will of either party. After having the case under advisement for six months, and as the court says in its opinion “on account of its great importance to the public as well as to all public service corporations” having given unusual consideration to the case, the contention of the Gas Company was sustained and the grant was held “simply determinable, existing only as the parties mutually agree thereto.” Paragraph three of the syllabus of the case, which in Ohio has the approval of the entire court, reads:
“While much regard will be given to the clear intention of the parties, yet where the contract is entirely silent as to a particular matter, the courts will exercise great caution not to include in the contract, by construction, something which was intended to be excluded.”
This decision was rendered in 1909 by a unanimous court, and six years later it was made authority for the decision of this case. There is no Supreme Court authority in Ohio to the contrary. The judgment by an inferior court, cited in the majority opinion, that street railway grants made before the statutory limit of twenty-five years was imposed and silent as to duration were perpetual, was *591promptly discountenanced when the case reached the Supreme Court. 73 Ohio St. 363.
A decision by a state Supreme Court, repeated after the lapse of six years, of a question involving the construction of local laws is, in my judgment, entitled to very great weight.
There was no question raised in the Ohio court but that a contract was created by the passing and accepting of the resolution of 1892, and the record shows that the sole question for decision, and which was decided, was, whether the grant was an indeterminate or a perpetual one. If the grant had contained an express provision that it was revocable at will, it would have been impossible, having any regard to the meaning of words, to have said that the resolution of 1913 impaired its obligation. It would have been simply and only á form of exercising a legal right the exercise of which was contemplated by the contract. The case is not different if the grant, without such expression, really means, as the Supreme Court of Ohio held that it means, the same thing as if such provision had been incorporated into it, and since the state court arrived at its result by the construction of the grant wholly unaffected by the subsequent resolution terminating it, it seems clear enough, upon repeated decisions of this court, that a decision should not be rendered here based on the theory that the grant was impaired by a resolution in form terminating it. While this court has held that in such cases it will for itself determine whether a contract exists and what its terms are, yet where the decision of the state. court is so manifestly unaffected by the later “law” as it is in this case, it should be given weight and authority comparable at least to that which would have been given. it if it had been directed to the validity of the granting “law” under the state constitution.
The power to declare laws of States unconstitutional ,and to reverse the judgments of the Supreme Courts of *592States is so fateful and is so unprecedented in the history of governments other than ours that, as this court has repeatedly declared, it should be exercised only in cases which are clear, and it is impossible for me to think that this is such a case.
The only reason given by the court in its opinion for differing with the Supreme Court of Ohio in its construction of the granting resolution of 1892 is that “The circumstances surrounding the grant of 1892 show no intention either to give or accept a mere revocable right. It would be against common experience to conclude that rational ■ men wittingly invested large sums of- money in building a railroad subject to destruction at any moment by mere resolution of county commissioners.” -
There is ho evidence whatever in this record that there were any special circumstances “surrounding the grant of 1892,” and to undertake to infer, what the unexpressed intention of the parties to this grant was twenty-five years ago is, it seems to me, an unusual and unpromising enterprise.
That it would be against common experience to conclude that rational men would wittingly invest their money in a railroad constructed under a grant determinable by the action of county commissioners is reasoning which it seems is more persuasive with courts than with investors or men of affairs. To reason upon what is reasonable is always uncertain and often misleading, but in this case we have ascertained facts to guide us.
Until recent years street railroad franchises (locations), and also electric light, gas, and other public utility franchises were revocable in Massachusetts, by aldermen in cities, and by selectmen in towns (counties), and they are still in the main so revocable, save that as to railroad grants revocation is now subject to approval by the State' Railroad Commission, and as to some other “locations” revocation is subject to approval by the Board of Gas and *593Electric Light Commissioners. Mass. Rev. Laws, 1902, vol. II, §§ 7, 32, pp. 1044, 1051. Springfield v. Springfield Street Ry. Co., 182 Massachusetts, 41, 48; Boston Electric Light Co. v. Boston Terminal Co., 184 Massachusetts, 566; Metropolitan Home Telephone Co. v. Emerson, 202 Massachusetts, 402. Yet hundreds of millions of dollars have been invested in that State in dependence upon these revocable ordinances.
In legislating for the District of Columbia, Congress has followed the Massachusetts example and has made street railroad grants indeterminate and revocable at the will of Congress. 12 Stat. 390, § 6; 27 Stat. 334, § 8.
Wisconsin, in 1907, adopted the principle of indeterminate franchises (Laws of Wisconsin, 1909, § 1797t), and the new constitution of Michigan recognizes it by providing that any franchise not revocable at will shall require the affirmative vote of sixty per cent, of the voters before it can become valid. .Constitution, 1908, Art. 8, § 25. Wilcox Municipal Franchises, vol. I, pp. 36, 37, vol. II, pp. 46, 47, and c. 27. »
This form of franchise has lx n called “a tenure during good behavior,” it has resulted in superior service to. the public and, to the surprise of those who reason a priori on the subject, such franchises have proved in effect perpetual. This type of franchise is undergoing modification in various parts of the country, which will, no doubt, improve it, but, of it even as it now is, Wilcox has this to say:
“Unquestionably, with the recognition of the unspeakable wrong that is inherent in the grant of perpetual franchises, and the great practical disadvantages that usually arise in connection with limited-term grants, public sentiment is rapidly crystallizing in lavor of the indeterminate franchise as the most promising basis for public control of street railways.” Municipal Franchises, vol. II, p. 240.
*594Perpetual franchises have proved to be such a. burden in communities upon which they have been imposed (Wilcox, vol. II, c. 26) that, for the reasons so well stated in. Blair v. Chicago, supra, it is impossible for me to agree that any grant is perpetual unless the language used in it is so express and clear that reasonable men cannot differ in giving to it that effect.
Thus for the reasons (1) That a perpetual grant is not “in plain terms” made by the resolution of 1892; (2) That appropriate consideration seems to me not to be given to the decision of the Suprem(e Court of Ohio, and (3) That the reasons stated for inferring that an irrevocable franchise was intended by the granting power in the case before us are not sound reasons, I should dissent from the opinion of the court even if convinced that it had jurisdiction to decide the case.
Me. Justice Beandeis concurs in this dissent.