Alabama Power Co. v. Gulf Power Co.

• Decision Date: 15 March 1922
• Citation: 283 F. 606
• Parties: ALABAMA POWER CO. v. GULF POWER CO. et al.
• Court: U.S. District Court — Middle District of Alabama

283 F. 606

ALABAMA POWER CO. v. GULF POWER CO. et al.

United States District Court, M.D. Alabama.

March 15, 1922

[Copyrighted Material Omitted]

Wm. L Martin and Borden Burr, both of Birmingham, Ala., S. H. Dent and Jones & Thomas, all of Montgomery, Ala., O. L. Hood, of Gadsden, Ala., and Graham Sumner, of New York City, for petitioners.

Coleman Coleman & Spain, of Birmingham, Ala., Marion Rushton, of Montgomery, Ala., and H. L. Butler, of Madison, Wis., for different respondents.

CLAYTON District Judge.

The multitudinous, redundant, and prolix pleadings, varying in verbiage, are reduced to the propositions herein considered. They are rescued from attempted complexity and confusion. With due deference to learned counsel, it must be said that, unlike the concept of time or space, none of the legal principles involved is susceptible of infinite divisibility.

As to the plea in abatement because of the pendency of a prior petition for a similar purpose in the probate court of Coosa county, Ala., it is perhaps sufficient to say that the rule seems to be practically uniform that the mere pendency of a suit in the state court will not abate a subsequent proceeding in a federal court, where both courts have concurrent jurisdiction, since each court derives its authority from separate and distinct sovereignty. Especially is the rule applicable in this case, for here it is admitted that the state court has not acted in the proceedings begun there, although they were instituted some months ago. The state court has never done anything to assert dominion or control in any way over the lands, the thing involved in this case. In refutation of the objection that this court cannot now proceed because of the action pending in the state court may be cited Wilson v. Milliken, 103 Ky. 165, 44 S.W. 660, 42 L.R.A. 449, 82 Am.St.Rep. 578, and the comments thereto made by the annotator. He states that, while there is some conflict, the decided weight of authority seems to be that the mere pendency of a suit is not a defence to an action in another court between the same parties, where one is in the federal and the other is in the state court in the same state, having concurrent jurisdiction. A number of federal authorities are cited.

The rule is well settled in so far as actions in personam are concerned. While a proceeding by way of condemnation is often spoken of as a proceeding in rem, in truth it is not, strictly speaking, such a proceeding, since the court itself never assumes possession of or dominion over the property, the land, at any stage. This is illustrated by the Act of Congress of July 2, 1917, amending the condemnation laws of the United States. 40 Stat. 241, c. 35 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 6911a). It was discovered during the war that the United States could not get possession of land necessary for camp sites for its soldiers until at the end of the condemnation proceedings. Congress therefore amended the law, so as to authorize the government to take possession immediately upon the institution of the proceedings. This act, however, was limited to the period of the war.

The respondents challenge the constitutionality of the Act of June 10, 1920, under which these proceedings are brought. Its purpose and scope is fairly stated, though in general terms, in the title:

'An act to create a federal power commission; to provide for the improvement of navigation; the development of water power; the use of the public lands in relation thereto, and to repeal section 18 of the River and Harbor Appropriation Act, approved August 8, 1917, and for other purposes.'

This act is the fruit of two independent bills introduced in the Congress more than five years ago. One of them, called the Navigable Water Bill, was designed for the construction of dams and reservoirs in navigable waters, for the double purpose of improving navigation and the harnessing of the surplus water in rocky and shoaly courses, where it was deemed best by Congress under the plan to improve the navigability by the slack-water method; the other, called the Public Land Bill, had for its main purposes the devotion of flowing streams to power uses and for the impounding of water on the government domain or reservation for irrigation in furtherance of farm development.

The two bills had one element in common-- the development of power. The first sought to confer jurisdiction or administration upon the Secretary of War; the other conferred like power on the Secretary of Interior and the Secretary of Agriculture. These measures never became laws because the Senate and the House of Representatives could not agree upon the forms and all the provisions. Finally the two pieces of proposed legislation were in material respects combined into the one now called the Federal Water Power Act, before mentioned. This act, among other things, created the Federal Power Commission, consisting of the Secretaries of War, Interior, and Agriculture, and conferred upon this commission the power of authorizing and regulating dams and reservoirs on navigable streams and the like improvements on public lands. It is apparent, of course, that these two subjects of legislation differ from each other, for the first relates to navigable streams and depends upon the power of Congress to regulate interstate and foreign commerce, and the other having reference to public lands belonging to the government, and predicated upon the power of Congress to dispose of the public lands and to make adequate rules and regulations with respect thereto.

Both of these powers, in their respective scopes, have been recognized as plenary. They are, of course, limited as the exercise of legislative power in the first case to navigable waters and in the other to public lands. Under the act here the licensees of the commission are authorized to construct dams on navigable streams according to the congressional policy and plan. The combination of these two subjects into one act necessarily required that latitude should be given to the power commission in passing upon application to erect dams and in determining whether in any case the application should be granted, and upon what conditions, subject to what limitations, and the like, where the public welfare is concerned. It is manifest from specific provisions of the act that it is the duty of the commission to safeguard the interests of the United States in navigation and commerce, as well as the interests of the United States in the public lands. There are provisions designed to restrict the action of the power commission, some relating to commerce and others to public lands. For present purposes it is not necessary to amplify this statement. The features of the act which relate to water power on the public or government lands will not be particularly dealt with at this time, but the important provisions having to do with navigable streams specially in the states will more closely be considered.

The petitioner here is a licensee of the power commission, and as such seeks to condemn the lands of riparian owners, the respondents, on the Coosa river in Alabama. The act is assailed on the grounds that it trespasses upon the power of the state to control and regulate or use their own navigable waters, which powers so claimed on behalf of the state are deemed to be subordinate to the commerce power of Congress to intervene for the protection and improvement of navigation. Gilman v. Phila., 3 Wall. 713, 725, 18 L.Ed. 96; Mobile County v. Kimball, 102 U.S. 699, 26 L.Ed. 238; Wisconsin v. Duluth, 96 U.S. 379, 24 L.Ed. 668. Further, that it is a delegation of legislative functions to the power commission rather than the bestowal of administrative duties. Stated otherwise, it was said to be an attempt on the part of Congress to invade the right of the state, and to take away from the state the control and regulation of hydro-electric development; that it infringes upon the authority of the state in the matter of the transmission and distribution within the state of electric energy generated therein; and, further, that the effect of legislation is to put the government of the United States into the business, not only of generating, but of transmitting and distributing, intrastate and interstate, power originating at the dams constructed under the government license, which generation, transmission, and distribution it alleged to be aside from or beyond any governmental purpose, but is for the benefit of private corporations or persons licensed to construct the dams on navigable streams.

The cardinal rules governing the construction of statutes attacked upon the ground that they are repugnant to the Constitution of the United States, will be found in the marginal note below. ^[1] In the argument much stress was given to the assertion that this act transcends the Constitution and trespasses upon the rights reserved to the states. Of course, at the time the states formed themselves into a more perfect union under the Constitution, they held the right to their own navigable waters and the beds under them, with the power to use or dispose thereof without substantial impairment of the interest of the public in such waters, and the absolute property in and dominion over navigable streams, tidewaters, and the underlying soils were not granted to the general government, but were reserved and now remain in the states or under state sovereignty. Martin v. Waddell, 16 Pet. 367, 10 L.Ed. 997; Manchester v. Mass., 139 U.S. 240, 11 Sup.Ct. 559, 35 L.Ed. 159. Nevertheless, whatever rights the state has to use or dispose of navigable waters, for instance, to bridge, obstruct, divert, or improve, and the like, it is not superior to the power of Congress to regulate...