McPhee & McGinnity Co. v. Union Pac. R.

Citations

• 158 F. 5
• 87 C.C.A. 619
• 1907 U.S. App. LEXIS 3968

Syllabus

<p>1. Courts — Federal Court Jurisdiction — Party may Waive Venue or Suit.</p> <p>The right of a party to suit in the district of the residence of either the plaintiff or the defendant is a personal privilege which he may waive by a trial, demurrer, answer, or a general appearance without making the objection.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 13, Courts, §§ 810, 815.</p> <p>Of right as to district in which suit may be brought, see note to Memphis Sav. Bank v. Houchens, 52 C. C. A. 192.]</p> <p>2. Franchise — License—Certain Bights Which Constitute Respectively.</p> <p>A right or privilege which is essential to the performance of the general function or purpose of the grantee, and which can be given by the sovereignty alone, such as a right or privilege of a corporation to operate a commercial railroad, a street railroad, city waterworks, gasworks, and to collect tolls therefor, is a franchise.</p> <p>A right or privilege not essential to the general function or purpose of the grantee, and of such a nature that a private party might grant a like right or privilege over his property, such as a revocable permission to occupy or use a portion of some public ground, highway, or street, is a license, and not a franchise.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 23, Franchise, § 1.</p> <p>For other definitions, see Words and Phrases, vol. 3, pp. 2929-2942; Vol. 5, pp. 4133-4141; vol. 8, pp. 7706, 7766.]</p> <p>3. Constitutional Law — Constitution—Construction by First Legislative Body Persuasive.</p> <p>The interpretation given to a Constitution by the first legislative body which acts thereunder is a contemporary construction, which should he treated with great deference.</p> <p>[Ed. Note. — For cases in point, see Cent. Dig. vol. 10, Constitutional Law, §§ 14, 15.]</p> <p>4. Same — Sensible Construction Preferred to Impracticable or Unreasonable One.</p> <p>A rational practicable interpretation of a Constitution or statute sh