94 F.2d 520 (4th Cir. 1938), 4252, Carolina Power & Light Co. v. South Carolina Public Service Authority

Docket Nº:4252, 4253, 4254.
Citation:94 F.2d 520
Party Name:CAROLINA POWER & LIGHT CO. v. SOUTH CAROLINA PUBLIC SERVICE AUTHORITY et al. SOUTH CAROLINA POWER CO. v. SAME. SOUTH CAROLINA ELECTRIC & GAS CO. v. SAME.
Case Date:February 02, 1938
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
FREE EXCERPT

Page 520

94 F.2d 520 (4th Cir. 1938)

CAROLINA POWER & LIGHT CO.

v.

SOUTH CAROLINA PUBLIC SERVICE AUTHORITY et al.

SOUTH CAROLINA POWER CO.

v.

SAME.

SOUTH CAROLINA ELECTRIC & GAS CO.

v.

SAME.

Nos. 4252, 4253, 4254.

United States Court of Appeals, Fourth Circuit.

February 2, 1938

Page 521

William M. Rogers, of Birmingham, Ala., and Raymond T. Jackson, of Cleveland, Ohio (W. H. Weatherspoon, of Raleigh, N.C., Arthur R. Young, of Charleston, S.C., W. C. McLain, of Columbia, S.C., and A. J. Bowron, Jr., and Douglas Arant, both of Birmingham, Ala., on the brief), for appellants.

R. M. Jefferies, of Walterboro, .S.C., and Paul Freund, Sp. Asst. to Atty. Gen. (W. J. McLeod, Jr., of Miami, Fla., James W. Morris, Asst. Atty. Gen., and Enoch E. Ellison,

Page 522

Atty., Dept. of Justice, Carl F. Farbach, Robert E. Sher, and Joseph B. Hobbs, of Federal Emergency Administration of Public Works, all of Washington, D.C., on the brief), for appellees.

Oswald Ryan, Gen. Counsel, Federal Power Commission, of Washington, D.C. (Howard E. Wahrenbrock, Willard W. Gatchell, and William C. Koplovitz, all of Washington, .D.C., on the brief), for Federal Power Commission, amicus curiae.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

These are appeals from an order denying an injunction in three consolidated cases instituted to enjoin the South Carolina Public Service Authority from constructing the Santee-Cooper Power-Navigation Project and Harold L. Ickes, Federal Administrator of Public Works, from making a loan and grant in aid thereof. The plaintiffs are hydroelectric power companies doing business in the state of South Carolina, one of them, the Carolina Power & Light Company, holding a license from the Federal Power Commission for hydroelectric project which it operates on Big Pigeon river in Haywood county, N.C. The defendant South Carolina Public Service Authority is a body corporate created as a governmental agency of the state of South Carolina by Act No. 887 of the General Assembly of 1934, 38 St.at Large, p. 1507, and authorized thereby to construct a power and navigation project on the Santee and Cooper rivers and to divert the waters of the Santee into the Cooper for that purpose. A loan and grant aggregating $37,500,000 in aid of the project has been approved by the Administrator of Public Works and an agreement to advance $6,000,000 thereof to begin construction has been executed.

The project may be briefly described as follows: The Santee and Cooper are navigable rivers, the navigable portions of which lie wholly within the state of South Carolina. While they are navigable for a considerable distance, the navigation which they carry at this time is of an entirely negligible character. It is proposed by means of the project to provide an improved water route from Columbia to Charleston which will really be useful for purposes of navigation, and which will shorten the distance of water transportation between these cities from 246 to 145 miles, and at the same time to construct a hydroelectric power plant capable of producing annually 450,000,000 kwh of primary power and 200,000,000 kwh of secondary power. This is to be accomplished by constructing a diversion dam at Wilson's Landing in the Santee, about 87 miles above its mouth, and diverting the flow of that river, with the exception of about 500 c.f.s., through a canal into the Cooper. A power dam, with appropriate navigation locks, is to be constructed in the latter river at Pinopolis, and by the use of appropriate electrical generating machinery the potential energy of the impounded water is to be converted into electric current.

The result of the construction of the project will be to decrease the navigable capacity of the Santee below the diversion dam; but provision is made in the license granted therefor to take care of any future need of navigation in that part of the river by providing that the flow below the dam shall be increased by releasing such additional quantities of water as in the opinion of the Chief of Engineers of the War Department and the Secretary of War may be necessary for the proper operation of navigation facilities to be provided by the government. The project has been authorized by the South Carolina Legislature by Act 887 of the General Assembly of 1934, which has been upheld as constitutional by the Supreme Court of South Carolina. Clarke v. South Carolina Public Service Authority, 177 S.C. 427, 181 S.E. 481. It has been licensed also by the Federal Power Commission, after approval by the Chief of Engineers of the War Department and the Secretary of War. It appears also that Congress, after being advised as to the project and the earmarking of funds for the loan and grant in aid thereof, has appropriated additional funds for carrying it on. Public Resolution No. 47, 75th Cong., June 29, 1937, c. 401, § 205(e), 15 U.S.C.A. § 728 note. See also Senate Document 184, 74th Cong.2d Sess.p. 11, and 81 Cong.Rec. 6054 and 81 Cong.Rec. 8304.

Injunctions are sought by plaintiffs to restrain not only the making or receiving of the federal loan and grant in aid of the project but also the construction of the project itself...

To continue reading

FREE SIGN UP