Evening star., 1936-02-05
IVA. RULING MAY
AVO|DMAJ0R|SSUE.
Act Could Be Ruled Valid
Without Passing on Com
petition Question.
BY DAVID LAWRENCE.


thority and also the other large power
q developments planned by the Federal
: Government in various parts of the
country.
Nobody knows what the court has
decided. although the general impress
sion is that the court members have
Z had their conference, that the ex-
haustive work of writing the final
opinion or opinions is now in prog
3 ress, and that the judgment may be
disclosed either next Monday or the
2 following week.
An examination of the briefs filed
by the lawyers for the T. v. A. and for
the stockholders of the Alabama Power
Co.. would seem to indicate that the
questions and circumstances involved
are quite novel, but that the principles
underlying them have been passed
upon before by the court.
Hinges on One Question.
Much depends on one important
question of fact. Is the Tennessee VAL
ley Authority merely an instrumental
ity for the disposal of Government
property-that is, surplus power Incl
dent to navigation-or is the T. v. A.
an instrumentality primarily for the
sale Of power in competition with pri-
vate interests?
If the answer to the first question is
"yes," then the act creating the T. v.
= A. can be upheld as being within that
clause of the Constitution which gives
r the Federal Government, through
Congress, the right to dispose as it
pleases Of any property owned by the
United States.
,- If the answer to the second question
Is yes" then the act could be held
Z unconstitutional as being the employ
ment Of an apparently legitimate
means to accomplish an unconstitu-
tional end.
The Supreme Court, at this very
session, has held that the A. A. A.
processing taxes were not an exercise
of the taxing power, but the means to
an unconstitutional end-namely, the
regulation of agriculture, which is not
itself within the Federal power.
Navigation Point Argued.
When the case was being argued,
many queries were interposed from
the bench and lawyers from the Gov
ernment insisted that whatever the
T. v. A. had done to acquire trans
mission lines or arrange for the use
of electric power in the area in which
1t is operating had been done for
the sole purpose of disposing of the
surplus power which was an incident
to the Federal power to control navi-
CATION.
The inference was plain that the
Government attorneys thought that
the engaging of the Federal Govern
ment in the business Of supplying elec-
trical energy might by itself be in
valid, but when an incident of the
Governments desire to dispose of its
property there could be no such OBJ
lection.
So the whole controversy is really
narrowed to what are the facts. The
evidence taken, the statements by
T. v. A. officials, the announcements
by the President, the debate in Con-
greSs and a thousand and one sources
OF information are doubtless being
carefully read by members of the
court in attempting to arrive at their
fnal conclusions.
May Avoid Power Question.
Outside the court among lawyers
there is much speculation as to what
the court might do and 1t would not
be surprising at all If the court held
that the statute itself was valid. but
that in this case it would not pass on
incidents touching competition or the
development Of the Government into
competitor in the power business.
To determine what the purpose Of
congress was, it is essential that the
text OF the law creating the T. v. A.
be studied. In the act there is one
clause which would seem to indicate
that Congress was not casually inter-
ested in how it disposed of Govern
ment property but attempted to set
up preference as between citizens,
something which might be attacked
as capricious or at least as not af-
1ording the citizen equal opportunity.
Thus the act reads:
The board IT. v. A. is hereby en-
powered and authorized to sell the
surplus power not used in its OPERA
lions and In the sale of
such current by the board it shall
give preference to States, counties,
municipalities and cooperative Or
ganizations of citizens or farmers,
not organized or doing business for
profit, but primarily for the purpose
OF supplying electricity to its own
citizens"
Ramifications Evident.
Now the establishment of a pref
erence for one group of citizens car
ries with it far-reaching implications.
especially In the disposal of Govern
ment property. Thus, every year the
Government sells many things it ac-
quires, from office furniture to bootleg
whisky. SupposIng the Congress
should decide to direct the Govern
ment departments to dispose of the
ONCE furniture by preference sale tn
organizations not engaged in prof,t-
making or the whisky to cooperative
organizations" such as social clubs |
which are not engaged in doing busi- |
ness for profltP Certainly the right of |
preference would thus interfere seri- |
ously with those who sold office furni-
ture or those who engaged In selling |
whisky as legitimate business,
There are dozens Of collateral ques-
tions Just Like that wrapped I'D in the
7. v. A. lawsuit and many Of them |
the court may not even touch upon,
limiting itself to some controlling fea-
ture. The strongest point which the
T. v. A. stressed was that the Govern |
ment had right to dispose of its
property as it pleases.
South Carolina Case Recalled.
And the strongest point the oppo-
nents OF T. v. A. made was contained |
in citation from q decision of the |
Supreme Court Of the United States |
In O case known as South Carolina w.
United States, wherein Chief Justice