Duke Power Co v. Greenwood County

• Decision Date: 14 December 1936
• Docket Number: No. 32,32
• Citation: 299 U.S. 259,57 S.Ct. 202,81 L.Ed. 178
• Parties: DUKE POWER CO. et al. v. GREENWOOD COUNTY, S.C., et al
• Court: U.S. Supreme Court

299 U.S. 259

57 S.Ct. 202

81 L.Ed. 178

DUKE POWER CO. et al.

v GREENWOOD COUNTY, S.C., et al.

No. 32.

Argued Nov. 10, 1936.

Decided Dec. 14, 1936.

Messrs. W. S. O'B. Robinson, Jr., of Charlotte, N.C., and Newton D. Baker and Raymond T. Jackson, both of Cleveland, Ohio, for petitioners.

Messrs. W. H. Nicholson, of Greenwood, S.C., and D. W. Robinson, of Columbia, S.C., for respondent Greenwood County.

Messrs.

[Argument of Counsel from page 260 intentionally omitted] Jerome N. Frank, of New York City, and Stanley F. Reed, Sol. Gen., of Washington, D.C., for respondent Ickes.

PER CURIAM.

This case presents irregularities in practice which we think should not be overlooked.

This suit was brought by electric utility corporations to restrain the defendants, Greenwood County, South Carolina, and its officials, from constructing and operating a local electric power plant and from issuing bonds and making contracts for that purpose. Harold L. Ickes, as Federal Emergency Administrator of Public Works, was permitted to intervene. He filed an answer showing an agreement dated December 8, 1934 (after the commencement of the suit), between the Government and Greenwood County for the making of a loan by the Government to aid the county in financing its project upon stated terms and conditions. By amended and supplemental bill, plaintiffs challenged the constitutional authority of the Federal Government to make the loan. Defendants' motion to dismiss for want of equity was denied. (D.C.) 10 F.Supp. 854. Defendants answered, evidence was taken and a final decree was entered permanently enjoining defendants from carrying out the contract of December 8, 1934, and the defendant Ickes from advancing to the county, and the county from receiving, any federal funds in furtherance of the project. (D.C.) 12 F.Supp. 70. Defendants appealed to the Circuit Court of Appeals.

Appellant Ickes informed the appellate court that, since the taking of the appeal, the contract of December 8, 1934, had been terminated, and a new agreement substi- tuted, and that the terms and conditions of the earlier contract, which had been held by the District Court to be in excess of the authority of the county, had been eliminated. Mr. Ickes asked that the cause be remanded to the District Court, with leave to the parties to amend their pleadings in accordance with the facts 'and for a trial or other disposition of the cause on such amended pleadings.' The Circuit Court of Appeals heard argument upon that motion and made the following order:

'The above entitled cause coming on to be heard on the motion of Harold L. Ickes, Federal Emergency Administrator of Public Works, one of the appellants, that the said cause be remanded to the District Court for the Western District of South Carolina to the end that that court may reconsider its decision in the light of the contract entered into between the United States and the County of Greenwood, South Carolina, dated November 30, 1935:

'It is ordered that said cause be remanded to the said District Court to the end that that court may reconsider its decision in the light of the said contract and may take such further action as may be appropriate in the premises.

'The court below is requested to hear the cause thus remanded with all convenient dispatch and to certify his findings of fact and conclusions of law to this court as soon as possible, to the end that the cause may be heard by this court upon appeal on the first Monday in January 1936 in accordance with the agreement of counsel this day made in open court to the effect that they would press for a speedy hearing of the cause and docket the appeal from the decision of the court below for hearing on the date aforesaid without reference to the rules regulating appeals, filing and printing of briefs, etc.'

The order was ambiguous. While without a vacatur of the final decree the District Court could not reconsider the cause and determine it anew, the Circuit Court of Appeals did not in terms vacate the decree. In consequence the order was not understood either by the parties or by the District Court, and the subsequent proceedings were extraordinary. The pleadings were not amended. The District Court was in doubt as to the extent to which testimony should be taken. Counsel for defendant Ickes took the position that they should not be limited to proof of the new contract, but should be permitted to have 'a rehearing of the issues raised by the pleadings in this case filed prior to the entry of the final decree in so far as those issues concern the power policy of the Administrator.' They added that there was not time 'to file supplemental pleadings, as would be done were this case to proceed in the usual course.' Plaintiffs' counsel insisted that as the term at which the original decree was entered had expired, there could be no rehearing and accordingly objected to the reception of evidence. They further objected to any evidence not relating to new matter which had arisen since the original decree. The District Court stated that it would take all the evidence offered, but subject to plaintiffs' objections, reserving its ruling as to admissibility. Evidence was then taken. Mr. Ickes was examined and cross-examined. Plaintiffs moved to strike out statements made by him relating to matters not arising since the decree. At plaintiffs' instance, a press release of the Public Works Administration was placed in the record as a part of the cross-examination. A letter from the Deputy Administrator of the bureau was introduced by plaintiffs subject to defendants' objection. This paper was deemed by the court to be irrelevant 'to any issue presented by the order remanding the case' and was placed in the record to show plaintiffs' offer of proof 'in event that the Court of Appeals should rule that defendants are entitled to a rehearing of the original issues which were passed upon and determined by the final decree heretofore entered in this case.' A book entitled 'Back to Work,' published by Mr. Ickes, was offered by defendants and admitted subject to plaintiffs' objections. Greenwood County, and its finance board offered witnesses and resolutions to show the action taken by the county.

Defendants then moved that the record on appeal be supplemented by adding all the testimony 'offered, heard or excluded by the court,' together with the exhibits. The motion was granted. Defendants further moved that their answers 'be taken as amended and supplemented in accordance with the above mentioned proof and evidence.' That motion was denied. Defendants then moved that the answers of the defendant 'be taken as supplemented and/or amended by adding thereto the contract of November 30, 1935,' between the United States and Greenwood county. That motion was also denied.

The court filed its decision entitled 'Report to Circuit Court of Appeals of findings of fact and conclusions of law pursuant to order of remand.' The court recited the proceedings and in particular adverted to the fact that plaintiffs' counsel prior to the introduction of testimony had stated that the only pleadings and issues before the court were the pleadings and issues 'prior to the entry of the final decree,' that no supplemental pleadings had been filed, and that defendants' counsel had admitted that the issues were those 'formed by the present pleadings, and that under the terms of the order of remand there was not time to file supplemental pleadings.' The court said that it was pursuant to that understanding that the testimony had been heard. After reciting the final motions of the parties and its rulings, the court explained...