8-to-i for TV A

8-to-1 for TVA

When noon struck one day this week U. S. Supreme Court addicts were sure that after being disappointed for a month they were at last going to be rewarded with a decision on the Tennessee Valley Authority. They had two tips: 1) Word had leaked out that the Supreme Court police had been instructed to get luncheon in advance since the session would not be brief. 2) Seated in the court room crowd was Mrs. Charles Evans Hughes. The red velvet curtains behind the austere columns parted, and the silk-robed Justices rustled to their seats. Breathless was the crowd as Chief Justice Hughes began to read. After the first sentence, the crowd sighed. Even the deepest-dyed Liberal hardly gave a hoot that day about Brown et al. v. State of Mississippi--three Negroes convicted of murder, whose statements, claimed to have been made when they were brutally whipped by deputy sheriffs, were admitted in evidence as confessions. The Chief Justice of the U. S. was not disinterested. With vibrant voice he called attention to the "due-process" clause of the Constitution, declared, "The rack and the torture chamber may not be substituted for the witness stand," set aside the sentences. Having contributed to the dramatic tension by putting human rights first, Chief Justice Hughes took up property rights next. The case: minority preferred stock-holders of Alabama Power Co. who asked that the Supreme Court void the sale by that company of a transmission line to TVA on the ground that TVA was unconstitutional. The long-awaited hour had come. The crowd craned their necks to catch every word. The Chief Justice spoke with unusual deliberation, pausing now & then to peer at his audience. The first question, he explained, was whether the property of the minority stockholders was endangered, whether they had a right to sue. He declined to let any technicality stand in the way of their right to sue, declaring: "We should not seek to find means of avoiding ruling on a constitutional question." The second question, he declared, was whether Wilson Dam at Muscle Shoals (whence the debated power line leads) was legally constructed. Both because it was built under Wartime laws to provide power for making explosives and because it was designed to improve navigation, the Federal Government had been entitled to construct it. Therefore the dam was not illegal. Third question was whether the Government had the right to sell power created at a legal dam. Said the Chief Justice: "The Government has no less right to the energy thus availed by letting the water course over its turbines than it has to use the appropriate processes to reduce to possession other property within its control, as, for example, oil which it may recover from a pool beneath its land and which is reduced to possession by boring oil wells and otherwise might escape its grasp.

"We think that the same principle is applicable to electric energy."

Fourth and final question was whether the Government had the right to buy transmission lines to take power from its legal dams to market. Said Chief Justice Hughes: "The question here is simply as to the disposal of that energy, and the Government rightly conceded at the bar in substance that it was without constitutional authority to acquire or dispose of such energy except as it comes into being in the operation of works constructed in the exercise of some power delegated to the United States. . . . The Government is not using the water power at Wilson Dam to establish any industry or business. "It is not using the energy generated at the dam to manufacture commodities of any sort for the public.

"The Government is disposing of the energy itself, which simply is the mechanical energy, incidental to falling water at the dam, converted into the electric energy which is susceptible of transmission."

Therefore, since all else is legal, the Government may acquire transmission lines to take its by-product to any "reasonable market."

When Mr. Hughes finished, Justice Brandeis read a concurring opinion in which he and Justices Roberts, Stone & Cardozo agreed with the Chief Justice, except that they did not believe that the preferred stockholders of Alabama Power Co. should even have been allowed to sue. Justice McReynolds, arch-Conservative of the Court, was all alone in a dissenting belief that TVA was unconstitutional.

New Dealers were jubilant at their 8-to-1 victory, their first victory since the gold case a year ago.

"I am delighted," beamed Senator Norris, father of TVA.

"The best news I've had in a long, long time!" wheezed Senator McKellar of Tennessee.

Said TVA Director Lilienthal to the Press: "Mr. Lilienthal, smiling happily, declined to comment."

All through the Tennessee Valley plans were made to hold Thanksgiving festivals. Newspapers could not get out their extras because news-hungry crowds invaded the press rooms. Everywhere New Dealers proclaimed it a sweeping victory, entitling them to go full steam ahead not only with TVA but with "little TVA's" throughout the U. S.

Lawyers, pondering the decision, foresaw that this enthusiasm might assume too much. Only the Wilson Dam had been declared legal. Some other dam might be found otherwise. The Court did not pass on the right of the Government to retail electricity, only to take the necessary steps to get rid of a byproduct. Nor did the Court pass on the right of the Government to distribute its power for social purposes in a wider area than would constitute a "reasonable market." However, TVA men had a right to rejoice: They had been freed of a major legal threat, could accomplish much before new threats arose.

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