Chattanooga & Tennessee River Power Co. v. United States

• Decision Date: 02 December 1913
• Docket Number: 2,355.
• Parties: CHATTANOOGA & TENNESSEE RIVER POWER CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

209 F. 28

CHATTANOOGA & TENNESSEE RIVER POWER CO. v. UNITED STATES.

No. 2,355.

United States Court of Appeals, Sixth Circuit.

December 2, 1913

Williams & Lancaster, of Chattanooga, Tenn., for plaintiff in error.

James B. Cox, U.S. Dist. Atty., of Knoxville, Tenn.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

The power company, plaintiff in error, was convicted of violating the act which restricts the daily service of laborers and mechanics employed upon the public works of the United States to eight hours. Act August 1, 1892, c. 352, 27 Stat. 340 (U.S. Comp. St. 1901, p. 2521). The power company demurred to the indictment on the ground that it shows on its face that the work in question is not 'a public work of the United States,' within the meaning of the act alluded to. The demurrer was overruled, the company found guilty and a fine imposed; and error is prosecuted.

The indictment was returned December 5, 1911. It charges in substance that the power company entered into a contract with the United States to build a lock and dam across the Tennessee river, a navigable stream, at Hales Bar, Guild Tenn., and, further, that while engaged in the construction of the lock and dam, 'a public work of the United States,' the company 'employed, directed, and controlled the services of laborers and mechanics' thereon, and 'intentionally required and permitted' them 'to work more than eight hours in a calendar day when there was no extraordinary emergency. ' The contract is incorporated into the indictment by exhibit, and specifically refers to the acts of Congress pursuant to which it was executed.

Accepting under the demurrer the recitals contained in the contract the requisite conditions existed to authorize it to be entered into, as it was September 12, 1905, according and subject to the provisions of the act passed April 26, 1904 (33 Stat.pt. 1, p. 309, c. 1605), as amended January 7, 1905 (Id. p. 603, c. 32). ^[1] The task set for us is to determine whether the work described in the contract and authorized by these acts of Congress is 'a public work of the United States' within the meaning of the act of August 1, 1892, commonly known within the word 'contractor' found in the Eight-Hour Law, cannot be questioned. The acts authorizing the contract, and the contract itself, provide for the construction of an efficient lock and dam in the Tennessee river; and the power company is required to and does undertake at its expense to furnish everything (save only the plans and certain specified materials which the government is to furnish), and to do all that is necessary to accomplish this result, and to vest title to the whole in the United States; and the power company does this in consideration of receiving from the United States a grant of 'such rights as it possesses to use the water power produced by said dam, and to convert the same into electric power or otherwise utilize it,' for a specified time, subject, however, to the condition that 'nothing shall be done in the use of the water' from the dam to interfere with navigation or with the government's use and control of the water for that purpose. This clearly limits the grant to the use only of surplus water. If, instead of this, a money consideration had been agreed upon, there could be no question touching the character or ownership of the work; indisputably it would have been one of the public works of the United States. Can it be that the medium of payment can operate to change this result?

It is true that this surplus-water power privilege is in terms to continue for 99 years; but this is subject to the right of revocation upon payment of the reasonable value of such necessary property as the company may acquire for the enjoyment of the privilege, the value of the 'franchise hereby conferred' being expressly excluded. Thus the surplus-water power privilege is at most a determinable franchise; and this is further burdened with an obligation of the power company to 'furnish the necessary electric current while its * * * power plant is in operation to move the gates and operate the locks and to light the United States buildings and grounds, free of cost to the United States. ' Now it is not the purpose to minimize the practical value of this privilege while it lasts. The attempt is simply to ascertain and define the nature of the privilege. For it is urged that the main object alike of the enactments and the contract was to produce this surplus-water power privilege and acquire part of the benefits of it, and that the lock and dam were a mere incident. It would be anomalous if the government were to regard its powers concerning navigable waters as entitling it to build locks and dams in navigable streams for the sole purpose of producing water power for the benefit of private persons; and yet this is the logic of counsel's insistence.

As Mr Justice Brown said, in ...