Evening star., 1936-02-19

uOC JUST a JuQlCldl disagreement over
legal technicality. BrandeS was
aroused.
NoW tDhen Brandeis gets so er-
cited about Hughes poting With
him you may be sure there is
something tCrong about the una
ntnatty OF the court.
Shrewd court lawyers thought they
could see clearly what it was. Bran
deis scented Pyrrhic victory for
his side.
Decision May Prove Costly.
A good many court lawyers agreed
that, while the Government won the
case it might prove to be an extremely
costly decision IN years TO come.
What Hughes said was that Wilson
Dam was constitutional because it was
built for legitimate national defense
and navigation purposes. Therefore
any power incidentally generated from
it in peace times could legally be sold
in whatever way the Government
wanted to sell It.
But no other dam on the Ten
| neSsee RiUer or any other riUer
stands up to erdctly the same legit-
indcy test. 1t does not apply to
Norris Dam, Boulder Dam, Bonne-
ulle, Grand Coulee. All ,Dere con-
structed under entirely different
circumstances.
What Hughes said about those dams
was that any stockholder of any power
company who felt damaged by them
could come up and sue before him
some time.
Pandora's Box May Be Opened.
Another thing Brandeis Is supposed
to have had in the back Of his mind
secondarily Is the A. A. A. decision.
Lawyers say that stockholders have
already sued some companies, asking
damages in connection with the pay
ment Of illegal processing taxes. If
stockholders get into that angle OF
the suing business, It WILL open a
pretty Pandora's Dox.
The inside suspicion feuen among
New Deal lawyers) is that the
court seemed to be lined heauily
against Federal potrer yardsttck
program. Also Justices Hughes. Van
Devdnter, Sutherland and Butler
seemed to reserue' grave doubts thdt
other dams would be able to meet
their constitutional test. Euen the
Wilson dam did not meet the con-
stitutional requirements of Justice
McReynolds. That makes fue, O
majority OF the court.
OF course, lawyers differ on which
of the other dams will be able to
meet the new legitimacy test. No.
body's opinion will be worth anything
from a practical standpoint until the
court decides the constitutionality Of
each dam on its varying merits as to
national defense, commercial naWga-
bility, food control or irrigation.
Lawyers Expect to Profit.
New Deal lawyers are inclined to
take a philosophical attitude person.
ally. One remarked OF the record:
The Grim Reaper will probably
change the constitutional test of the
court before most Of the stockholders
suits get to 1t.
1.-THE only practical effect Of the
decision 7 see is that it will make
good business for lawyers"
The fine legal hairs drdUn are
supposed to haue been too fine for
one Supreme Court Justice. There
is a story going around that he
originally attempted to tDrite the
majority opinion, but his draft
proued unsatisfactory. AtterDard,
Chief Justice Hughes composed
the careful plaraseology required.
OF course, no one pretends to know
exactly what went on In chambers.
But this story would explain the un-
usual delay in rendering the opinion.
A Yarn Less Likely.
Another less imposing yarn has
been going around that Chief Justice
Hughes is determined to prevent any
more five-to-four decisions by the
court. New Deal authorities partic-
ularly have been saying soto voce
that the Chief Justice has decided
f1ve-to-four decisions are bad form
a standpoint of public policy.