CLARKE and BRANDEIS, JJ., dissenting. 243 U.S. city it described its franchise as granted for a term of twenty-five years beginning June 1, 1889. But in neither suit was it material whether the life of the franchise was strictly limited to that period or was subject to prolongation by an extension of the plaintiff's corporate existence; and it is not claimed that this question was adjudicated in either suit. At that time nine or ten years of the primary period still remained and there was as yet no occasion to elect or determine whether the privilege of effecting an extension would be exercised. Besides, in both suits the franchise was also described by the plaintiff as granted for "the whole period of its corporate existence." Thus no basis is shown for an estoppel by conduct or by judgment. Other objections are made to the decree, but they are of less merit and do not require special mention. MR. JUSTICE CLARKE, dissenting. Decree affirmed. 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." 243 U. S. CLARKE and BRANDEIS, JJ., dissenting. The 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 twentyfive 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 CLARKE and BRANDEIS, JJ., dissenting. 243 U.S. gether 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 Owensboro 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 Owens boro 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 other 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 243 U. S. CLARKE and BRANDEIS, JJ., dissenting. became: "The time of the commencement of said corporation is the first day of June, 1889, and it shall terminate twentyfive 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 twentyfive 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, we 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 CLARKE and BRANDEIS, JJ., dissenting. 243 U. S. poration" 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 a 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 prepared 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 |