Henderson daily dispatch., 1939-04-29
uckertor1
Power Case
May Revive
Daily Dispatch Bureau,
In the Sir Walter Hotel.

Raleigh, April 29-As the ques-
ton Yadkin, YadlIin, who's got the
Yadkin, continues to agitate NUM-
clpal, state and federal officials as
well as the Duke Power Company
and other private enterprises, Attor-
ney General Harry McMullen is
studying carefully two opinions hand
ed down by the United States Sup
RENE Court on April II.
He won't say so, won't even say
he is considering the matter at all,
but those familiar with law and also
II. Hoey and other State officials,
see in the decisions a distinct pos
sibility that the famed TuckertoWn
case may be again tossed into the
Federal courts.
Reason is simple: They reverse,
in large part, the doctrine of mega
tive orders upon which was based
circuit court denial of a review in
the TuckertoWn case Under the
law as laid down in the new cases,
it would seem that on its merits
there would now be a different re-
suit in the case.
For the benefit of those who may
have forgotten the basic facts of the
TuckertOWn case, here's a very brief
resume of it:
The N. c. Aluminium Corporation
wanted to erect a plant on the Yad-
KIN river. 1t sought a ruling from
the Federal Power Commission with
regard to the necessity for license
from that bOdy (such a license is
necessary on naVigaDle streams, I'M
necessary on non-navigable ones.)
The commission made a "finding''
that a license must be sought. The
company, not wishing to proceed
under a Federal license, which
would make mandatory surrender of
its property after so years, appeal
ed to the circuit court The State.
unwilling to surrender control of tho
Yadkin, which it considers non-nav-
lgable, Joined in asking the court to
set aside the commissions findings
or "Order."
The court refused, following
fairly we'll Established doctrine that
no appeal will lie for the order of
a commission which is ''negative" ir
that it does not specifically ordet
any affirmative action The F. P. c.
ruling had been that the aluminium
company must seek a license before
1t could proceed with erection of its
proposed plant, but it did not re-
1ulre the company to do any speci-
fic act.
The recent cases which might lead
to reversal of this decision are
Rochester Telephone Corporation W..
Federal Communications Commits
sion and Federal Power Commits
sion VS. Pacific Power and Light Co
Justice Felix Franlzfurter, one OF
ne recent Roosevelt appointees to
the highest court, overruled the
ccmmISslon's contention that tbs
telephone case was not subject to re-
view on the doctrine OF negative
orders. The commission had previ-
)usly held that the company is sub
'ect to its orders, just as the power
commission held that the N. c.
aluminium is subject to its iurisdic-
ion
OF the doctrine Justice Frank
4urter said: eve conclude. therefore
nat any distinction, as such. be-
Ween negative and "affirmative'
rders as tOuchstone of jurisdiction
review the Commissions orders.
serves no useful purpose, and inso-
ar as earlier decisions have been
controlled by this distinction, they
:an no longer be guides
He handed down a very similar de
lslon in the Pacific Power Case.
In the telephone case, the Justice
aid down as necessary for court
'eVieW Of administrative commits
ion orders the necessity for Cd A
controversy, (2) general equity in
ne matter on the part of the ag-
5rieved party and (3) any statute
particular to the case at issue.
There is a very general impress
sion that the States appeal in the
>uckertown case met every specifi-
cation and that, if means for get
ing it before the courts again can
e found, that there might be a diff
ferent result.