McPhee & McGinnity Co. v. Union Pac. R. Co., 2,644

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation158 F. 5
Decision Date27 November 1907
PartiesMcPHEE & McGINNITY CO. v. UNION PAC. R. CO. et al. SAYRE NEWTON LUMBER CO. v. SAME.
Docket Number2,645.,2,644

158 F. 5

McPHEE & McGINNITY CO.
v.
UNION PAC. R. CO. et al.

SAYRE NEWTON LUMBER CO.
v.
SAME.

Nos. 2,644, 2,645.

United States Court of Appeals, Eighth Circuit.

November 27, 1907


[158 F. 6]

Syllabus by the Court

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.

Of right as to district in which suit may be brought, see note to Memphis Sav. Bank v. Houchens, 52 C.C.A. 192.)

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.

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.

The interpretation given to a Constitution by the first legislative body which acts thereunder is a contemporary construction, which should be treated with great deference.

A rational practicable interpretation of a Constitution or statute should be preferred to one which makes it impracticable or unreasonable.

Article 20 of the Constitution of Colorado prohibited the city of Denver from granting any franchise relating to any street, alley, or public place, without an approving vote of the qualified taxpaying electors of the municipality.

The charter of Denver adopted pursuant to this article empowered its council to grant a revocable license or permit at any time to any street, alley, or public place in that city.

The council of the municipality granted by ordinance to the Union Pacific Railroad Company, a corporation empowered by the laws of a state to construct, maintain, and operate a railroad into and through the city, a revocable permission to lay, maintain, and operate certain spur railroad tracks upon Blake street in that city for the distance of eight blocks to enable those who should own or [158 F. 7] occupy warehouses and other business houses to be constructed upon that street to transport their commodities to and from these houses in cars. The ordinance provided that this permission was revocable at any time by the city, and that if it revoked it or any part of it the city should pay back to the railroad company such part of the amount which that company had expended, not exceeding $67,000, in paving and sewering the part of Blake street to which the revocation should pertain. Held:

The privilege thus granted was a revocable license and not a franchise. The council of Denver was not prohibited from granting it by article 20 of the Constitution of Colorado, and it was empowered to do so by section 269 of the charter of Denver, and the license was valid.

When a part of a divisible ordinance or statute is within, and another part is without, the power of the body which enacts it, the former is valid and may be enforced, although the latter is void, unless it appears from a consideration of the entire ordinance or statute that it would not have been enacted without the part which is void.

This license was to a railroad company, its successors and assigns. If the grant to the successors and assigns was void, that to the railroad company was still valid.

Henry F. May (John S. Macbeth, on the brief), for appellants.

Clayton C. Dorsey and William V. Hodges (John N. Baldwin and H. A. Lindsley, on the brief), for appellees.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District judge.

SANBORN, Circuit Judge.

These are appeals from decrees which dismissed bills in equity brought by the appellants, who were owners of property abutting upon Blake street, between Nineteenth street and Twenty-Seventh street, in the city of Denver, to enjoin the Union Pacific Railroad Company, a corporation, from constructing railroad tracks and operating engines and cars upon that portion of the street, and to prohibit the city of Denver from permitting the railroad company to do so under an ordinance of that municipality which by its terms granted the company such permission.

The main question in the case is whether or not the city council of Denver had the power under the Constitution of the state of Colorado and the charter of the city to make this grant without the approving vote of a majority of the qualified taxpaying electors of the city. Counsel for the appellants contend that it had no such power, and while in their bill they averred that the ordinance was void (1) because it authorized the acceptance of a loan by the city contrary to certain provisions of the charter, (2) because it was not referred to the city attorney for his opinion before its passage, (3) because it was not legally advertised and delayed after its introduction and before its passage, (4) because it deprived the board of public works of its right to award the contract for the paving and sewering of the portion of the street on which the tracks were permitted, and of its right and power to have this part of the street paved and sewered by day labor, and of its right to assess the cost thereof upon the property benefited, (5) because the title of the ordinance discloses but one subject while it treats of two, and for other reasons, yet they have waived all these objections in this court, because, if they are well founded, the city council could, and undoubtedly would, remove them by the passage of another ordinance, and they stand here upon the proposition that the grant to the railroad company was beyond the powers of the city council, and upon that alone, and they concede that, if the council had the power to make the grant, the appellants are precluded from injunctive relief, and that their only remedies are actions at law for the damages they suffer.

Counsel for the respondents first contend that the court below was without jurisdiction of the case of McPhee & McGinnity Company, because that company was a corporation of the state of Nevada, and [158 F. 8] the Union Pacific Railroad Company was a corporation of the state of Utah, so that the suit was not brought in the district of the residence of the plaintiff or of all the defendants (Act March 3, 1875, c. 137, Sec. 1, 18 Stat. 470 (1 U.S.Comp.St. 508)), and they cite Greeley v. Lowe, 155 U.S. 58, 68, 15 Sup.Ct. 24, 39 L.Ed. 69, and Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, in support of their position. But the diversity of citizenship and the amount in controversy conferred jurisdiction upon the court below, subject to the right of the respondents to a determination of their controversy in the district of the residence of the plaintiff or of the defendants. This right, however, was not, like diversity of citizenship, an indispensable prerequisite to the jurisdiction of the court, but a mere personal privilege which they might waive, and which by interposing general demurrers to the bill, which were sustained before they suggested this objection, they did waive. Texas & Pacific Ry. Co. v. Cox, 145 U.S. 593, 12 Sup.Ct. 905, 36 L.Ed. 829; Martin v. B. & O.R.R. Co., 151 U.S. 673, 678, 14 Sup.Ct. 533, 38 L.Ed. 311; Interior Cons. & Imp. Co. v. Gibney, 160 U.S. 217, 219, 16 Sup.Ct. 272, 40 L.Ed. 401; Toland v. Sprague, 12 Pet. 300, 330, 9 L.Ed. 1093; Ex parte Schollenberger, 96 U.S. 369, 378, 24 L.Ed. 853; Charlotte National Bank v. Morgan, 132 U.S. 141, 145, 10 Sup.Ct. 37, 33 L.Ed. 282; St. L. & S.F. Ry. Co. v. McBride, 141 U.S. 127, 130, 11 Sup.Ct. 982, 35 L.Ed. 659; Southern Express Co. v. Todd, 56 F. 104, 109, 5 C.C.A. 432, 437; Van Doren v. Pennsylvania Straw Paper Co. (C.C.) 68 F. Hoover & Allen Co. v. Columbia Straw Paper Co. (C.C.) 68 F. 945; Scott v. Hoover (C.C.) 99 F. 247, 249; Platt v. Massachusetts Real Estate Co. (C.C.) 103 F. 705, 706; U.S. Fidelity & Guaranty Co. v. Board of Com'rs, 145 F. 144, 146, 76 C.C.A. 114, 116; Shanberg v. Fidelity & Casualty Co. (C.C.a.) 158 F. 1, filed November 4, 1907.

After discussion of this question of jurisdiction, counsel argue that the decree below should be affirmed, (a) because the tracks have been laid and a reversal would be ineffectual, (b) because the usurpation of a franchise may be remedied by an action under chapter 27, Sec. 289, of the Civil Code of Colorado (Mills' Ann. Code), or by the writ of quo warranto only, (c) because the appellants are entitled to no injunctive relief even if the passage of the ordinance was ultra vires of the city council, and (d) because the city council was vested with the requisite authority to grant the permission in controversy and the railroad company has the right to construct and operate its railroad thereunder upon the portion of the street in controversy. As the decision of the main question in favor of the respondents will render the other legal issues they urge upon our consideration immaterial, and counsel for the appellants waive the other grounds for relief they pleaded, we will first consider the issue of law which that question presents.

On March 18, 1901, the Legislature of Colorado passed an act to submit to the qualified voters of the state an amendment to its Constitution whereby the inhabitants of the city of Denver were authorized to frame and adopt a charter for that city, and at the next general election that amendment was adopted by the electors of the state, and it is [158 F. 9] now numbered and designated 'Article 20, City and County of Denver. ' Sess. Laws Colo. 1901, pp. 97-102, c. 46. On March 29, 1904, the electors of Denver adopted a charter for that city pursuant to this...

To continue reading

Request your trial
30 practice notes
  • U.S v. Project On Gov't Oversight, Civil Action No. 03-0096 (JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 6, 2007
    ...sensible one, and is therefore preferable under prevailing canons of construction. See, e.g., McPhee & McGinnity Co. v. Union Pac. R. Co., 158 F. 5, 17 (8th Cir.1907) ("[A] rational, sensible, and practical interpretation of a Constitution, statute, or contract should be preferred to one wh......
  • Chesapeake & Potomac Tel. Co. of W. Va. v. City of Morgantown, No. 11017
    • United States
    • Supreme Court of West Virginia
    • March 3, 1959
    ...2, 41 S.E. 125; Montgomery v. Atchison, T. & S. F. R. Co., 10 Cir., 89 F.2d 94, 96; McPhee & McGinnity Co. v. Union Pacific R. Co., 8 Cir., 158 F. 5, 15. 'The primary object of all grants of franchises in the United States is to benefit the public. The primary object is not the procuring of......
  • Texas Co. v. Central Fuel Oil Co., 3,652.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 13, 1912
    ...208; Shanberg v. Fidelity & Casualty Co., 158 F. 1, 85 C.C.A. 343, 19 L.R.A. (N.S.) 1206; McPhee & McGinnity Co. v. Union Pacific R.R. Co., 158 F. 5, 87 C.C.A. 619; Logan & Bryan v. Postal Telegraph Co. (C.C.) 157 F. 570. But, aside from that fact, neither of these last-named defendants hav......
  • Frost v. Corporation Commission State Oklahoma, No. 60
    • United States
    • United States Supreme Court
    • February 18, 1929
    ...Boise Water Co. v. Boise City, 230 U. S. 84, 90, 91, 33 S. Ct. 997, 57 L. Ed. 1400; McPhee & McGinnity Co. v. Union Pac. R. Co. (C. C. A.) 158 F. 5, 10, 11. In California v. Pacific Railroad Co., supra, 127 U. S. pages 40, 41 (8 S. Ct. 1080), a franchise is defined as 'a right, privilege or......
  • Request a trial to view additional results
30 cases
  • U.S v. Project On Gov't Oversight, Civil Action No. 03-0096 (JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 6, 2007
    ...sensible one, and is therefore preferable under prevailing canons of construction. See, e.g., McPhee & McGinnity Co. v. Union Pac. R. Co., 158 F. 5, 17 (8th Cir.1907) ("[A] rational, sensible, and practical interpretation of a Constitution, statute, or contract should be preferred to one wh......
  • Chesapeake & Potomac Tel. Co. of W. Va. v. City of Morgantown, No. 11017
    • United States
    • Supreme Court of West Virginia
    • March 3, 1959
    ...2, 41 S.E. 125; Montgomery v. Atchison, T. & S. F. R. Co., 10 Cir., 89 F.2d 94, 96; McPhee & McGinnity Co. v. Union Pacific R. Co., 8 Cir., 158 F. 5, 15. 'The primary object of all grants of franchises in the United States is to benefit the public. The primary object is not the procuring of......
  • Texas Co. v. Central Fuel Oil Co., 3,652.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • February 13, 1912
    ...208; Shanberg v. Fidelity & Casualty Co., 158 F. 1, 85 C.C.A. 343, 19 L.R.A. (N.S.) 1206; McPhee & McGinnity Co. v. Union Pacific R.R. Co., 158 F. 5, 87 C.C.A. 619; Logan & Bryan v. Postal Telegraph Co. (C.C.) 157 F. 570. But, aside from that fact, neither of these last-named defendants hav......
  • Frost v. Corporation Commission State Oklahoma, No. 60
    • United States
    • United States Supreme Court
    • February 18, 1929
    ...Boise Water Co. v. Boise City, 230 U. S. 84, 90, 91, 33 S. Ct. 997, 57 L. Ed. 1400; McPhee & McGinnity Co. v. Union Pac. R. Co. (C. C. A.) 158 F. 5, 10, 11. In California v. Pacific Railroad Co., supra, 127 U. S. pages 40, 41 (8 S. Ct. 1080), a franchise is defined as 'a right, privilege or......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT