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METROPOLITAN-EDISON CO. v. ICKES

March 8, 1938

METROPOLITAN-EDISON CO.
v.
ICKES, Administrator of Federal Emergency Administration of Public Works ; TENNESSEE ELECTRIC POWER CO. v. SAME; KENTUCKY-TENNESSEE LIGHT & POWER CO. v. SAME (two cases)


PER CURIAM.

These cases are before the court upon motions made by government counsel to dissolve preliminary injunctions entered upon consent restraining the officials of PWA and the Treasury from advancing funds for the purpose of financing the construction of power projects. These motions to dissolve the injunctions are based upon the claim that the decision by the Supreme Court on January 3, 1938, in Alabama Power Company v. Ickes, 302 U.S. 464, 58 S. Ct. 300, 303, 82 L. Ed. , was decisive of the questions involved in these cases, and that the temporary injunctions were consented to in the belief that decision in the Alabama Power Case would end the litigation. A large number of cases were brought, in which temporary injunctions were entered upon consent, and following the decision of the Supreme Court in the Alabama Power Case all of the cases have been discontinued except these four.

The motions originally were made before Mr. Justice Bailey, who, after careful consideration, reached the conclusion that they should be heard before a three-judge statutory court. All counsel acquiesced in this ruling. Accordingly this court was convened and the motions were heard by it.

 When the temporary injunctions were granted in these cases, it was the general understanding of the parties that the final decision in the Alabama Power Case would be decisive of all the litigation, and the injunctions were granted on that understanding. The plaintiffs apparently have made no effort to bring their cases on for trial upon any claim that there was a difference between them and the Alabama Power Case -- although they assert a difference for the purpose of opposing the present motions to dissolve.

 That difference, they contend, is that while the competition which the Alabama Power Company anticipated was legal competition, the competition to which these plaintiffs will be subjected is illegal because in each case the municipality is without right to distribute electricity in competition with plaintiffs.

 In none of the cases are the plaintiffs entitled to injunctive relief, upon the theory thus advanced, because the competition which they fear must come from the respective municipalities and not from the defendant. It is not contended that the defendant is proposing to become a competitor or that he will have any right, title, or interest in the proposed plants when completed, or anything to do with operating them. Consequently, he is not a proper party for the purposes of the suits. Arkansas-Missouri Power Co. v. City of Kennett, 8 Cir., 78 F.2d 911. Moreover, under plaintiffs' theory the municipalities are indispensable parties and, not having been made parties and given an opportunity to be heard, the injunctions cannot be allowed to stand. Balter v. Ickes, 67 App.D.C. 112, 89 F.2d 856.

 Moreover, in none of the cases does it appear that the anticipated competition will be illegal.

 Metropolitan-Edison Company case, No. 61550:

 This case was submitted to us without argument and no reason has been presented why the preliminary injunction should not be dissolved. Accordingly it is so ordered.

 Tennessee Electric Power Company case, No. 61113:

 In this case the lawfulness of the competition and the validity of the proposed bond issue by the city of Chattanooga has been upheld by the Supreme Court of Tennessee in the case of the Tennessee Electric Power Co. v. City of Chattanooga, 114 S.W.2d 441, pronounced by the court at its December term, 1936.

 It is claimed that a further point of difference exists in this case, i.e., that the plaintiff has a franchise from the federal government in addition to that from the state of Tennessee, but that claim does not differentiate the case from the Alabama Power Case. In the latter case, also, there was a franchise from the federal government in addition to that from the state.

 Kentucky-Tennessee Light & Power Company case, No. 60145:


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