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    ALABAMA POWER CO. v. ICKES, 302 U.S. 464 (1938)

    U.S. Supreme Court

    ALABAMA POWER CO. v. ICKES, 302 U.S. 464 (1938)

    302 U.S. 464

    ALABAMA POWER CO.
    v.
    ICKES et al. (two cases).

    Nos. 84, 85.
    Argued Dec. 6, 7, 1937.
    Decided Jan. 3, 1938.

    [302 U.S. 464, 465]   Messrs. Wm. H. Thompson and Newton D. Baker, both of Cleveland, Ohio, for petitioner.

    [302 U.S. 464, 471]   Messrs. Jerome N. Frank, of New York City, and Stanley F. Reed, Sol. Gen., of Washington, D.C., for respondents.

    [302 U.S. 464, 473]  

    Mr. Justice SUTHERLAND delivered the opinion of the Court.

    These cases involve certain 'loan-and-grant agreements' made by the Federal Emergency Administrator of Public Works with four municipal corporations located in the state of Alabama. The bills of complaint sought to enjoin the execution of these agreements. Each agreement contemplates the construction of an electricity-distribution system by the designated municipality, and, to that end, the purchase, by the Administrator, of bonds to be issued by the municipality and secured by a first pledge of the revenues derived from the operation of the system. In No. 84 30 and in No. 85 45 per cent. of the cost of the labor and materials used in the construction are to be donated outright. The authority relied upon for the loans and grants is that contained in Title 2 of the National Industrial Recovery Act1 as modified and continued by the Emergency Relief Appropriation Act of 1935.2 Title 1 of the former act has been declared unconstitutional by this court. 15 U.S.C.A. 701 et seq. Schechter Corp. v. United States, 295 U.S. 495 , 55 S.Ct. 837, 97 A.L.R. 947; Panama Refining Co. v. Ryan, 293 U.S. 388 , 55 S.Ct. 241. But we are here concerned not with Title 1 [302 U.S. 464, 474]   but with Titel 2 of the act. So far as material, that title provides:

      '(Sec. 202) The Administrator, under the direction of the President, shall prepare a comprehensive program of public works, which shall include among other things the following: (a) Construction, repair, and improvement of public highways and park ways, public buildings, and any publicly owned instrumentalities and facilities; (b) conservation and development of natural resources, including control, utilization, and purification of waters, prevention of soil or coastal erosion, development of water power, transmission of electrical energy; ... (c) any projects of the character heretofore constructed or carried on either directly by public authority or with public aid to serve the interests of the general public; (d) construction, reconstruction, alteration, or repair under public regulation or control of low-cost housing and slum-clearance projects; (e) any project (other than those included in the foregoing classes) of any character heretofore eligible for loans under subsection ( a) of section 201 of the Emergency Relief and Construction Act of 1932, as amended, (section 605b of Title 15) ...
      '(Sec. 203) (a) With a view to increasing employment quickly (while reasonably securing any loans made by the United States) the President is authorized and empowered, through the Administrator or through such other agencies as he may designate or create, (1) to construct, finance, or aid in the construction or financing of any public-works project included in the program prepared pursuant to section 202 (section 402); (2) upon such terms as the President shall prescribe, to make grants to States, municipalities, or other public bodies for the construction, repair, or improvement of any such project, but no such grant shall be in excess of 30 (by later act 45) per centum of the cost of the labor and materials employed upon such project.' (40 U.S.C.A. 402, 403(a). [302 U.S. 464, 475]   The bills of complaint challenge the validity of the loans and grants on the grounds, among others, that these statutory provisions purporting to authorize such loans and grants are unconstitutional; and that, in any event, the loans and grants do not come within the statutory provisions.

    The injury which petitioner will suffer, it is contended, as the loss of its business as a result of the use of the loans and grants by the municipalities in setting up and maintaining rival and competing plants; a result, it is further contended, which will be directly caused by the unlawful act of the administrator in making and consummating the loan-and- grant agreements.

    The suits were brought in the United States District Court for the District of Columbia. There, the respondents, in addition to defending the validity of the action of the administrator, contended that petitioner was without legal standing to maintain the suits. After a full hearing, the District Court held that petitioner had standing to challenge the administrator's action, but denied the injunctions and dismissed the bills of complaint upon the view that the statutory provisions were constitutional and that they conferred upon the administrator the power which he had exercised.

    On appeal to the United States Court of Appeals for the District of Columbia, that court found it unnecessary to consider the validity of the loans and grants, and affirmed the decrees of the District Court dismissing the bills on the ground that no legal or equitable right of the power company had been invaded, and the company, therefore, was without standing to challenge the validity of the administrator's acts. 91 F.2d 303. With that view we agree, and confine our consideration of the cases accordingly.

    The trial court made elaborate findings, but for present purposes the following is all that need be stated. Peti- [302 U.S. 464, 476]   tioner is a corporation organized under the laws of Alabama, having its principal office and corporate domicile in that state. Respondent Ickes is the Administrator of the Federal Emergency Administration of Public Works, duly appointed by the President of the United States in pursuance of law. The other respondents are subordinate officers and agents of the same Emergency Administration, or officers connected with its operations.

    Petitioner, under its charter, has the right to manufacture, supply, and sell electrical energy throughout the state of Alabama. Among other communities served by its system are the four municipalities here involved, from each of which it has a nonexclusive franchise giving it the right to construct, maintain, and operate within the municipality an electricity- distribution system. Petitioner is a taxpayer of each of the municipalities, of the counties in which they are located, and of the state, with respect to petitioner's properties and operations; and it also is a taxpayer of the United States with respect thereto.

    Each of the municipalities is authorized under state law to construct and operate municipal electric plants and distribution systems, and to engage in competition with petitioner. Each is authorized to issue bonds for the purpose of financing the construction of such plants and to receive grants for that purpose; to mortgage its plant or any part of it; and to pledge all or any part of the revenues derived from the operation of the plant as security for the loan. 3 In each municipality an election was held prior to the making of the loan agreements, at which it was determined by a majority of the qualified voters that the municipality should engage in the electric business. The District Court further found-

      'Each of the municipalities involved in this suit determined to enter into the electric distribution business of [302 U.S. 464, 477]   its own free will. There was no solicitation or coercion on the part of any of the defendants (respondents), their agents or subordinates. There was and is no conspiracy between any of the defendants and any other person, nor is there any other effort on the part of any of the defendants to, nor are their actions motivated by a desire to, cause injury or financial loss to the plaintiffs, or to regulate their rates or electric rates generally, or to foster municipal ownership of utilities.
      'The expenditures under these statutes involve no purchase of, nor contract providing for, regulation by the United States. The failure of any city to apply for or receive loans or grants under those statutes will impose upon it no disadvantage or financial loss.
      'The defendants have not reserved any right or power to influence or control rates to be charged by the proposed municipal power plants. ...
      'Neither the United States nor any of the defendants has reserved any right or power under the existing contracts, or in any other way, to require any of the municipalities to eliminate competition or to designate the person or agency from whom the municipality must purchase its power . ...
      'Neither the United States nor any of the defendants has any power to control the operation of the projects after construction is completed. ...
      'Each of the projects herein involved is a part of a program of national scope, is designed to relieve unemployment, and promotes the general welfare of the United States.'

    These findings were made, after hearing, by the district judge upon undisputed or conflicting evidence. The findings were not questioned by the court below; and since they are not without substantial support in the evidence, we accept them here as unassailable. Davis v. Schwartz, 155 U.S. 631, 636 , 637 S., 15 S.Ct. 237; Adamson v. Gilliland, 242 U.S. 350, 353 , 37 S.Ct. 169. [302 U.S. 464, 478]   It, therefore, appears that each of the municipalities in question has authority to construct and operate its proposed plant and distribution system in competition with petitioner, and to borrow money, issue bonds, and receive grants for that purpose; that it determined to do so of its own free will, without solicitation or coercion; that there was no conspiracy between any of the respondents and any other person, or any effort or action motivated by a desire to cause injury or financial loss to petitioner, or any purpose to regulate rates or foster municipal ownership of utilities. It further appears that neither the United States nor any of the respondents has reserved any right or power to require an elimination of competition or designate any agency from which the municipality must purchase its power. Each municipality is left entirely free from federal control or direction in respect of the management and control of its plant and business. In short, the case for petitioner comes down to the contention that consummation of the loan-and-grant agreements should be enjoined on the sole and detached ground that the administrator lacks constitutional and statutory authority to make them, and that the resulting moneys, which the municipalities have clear authority to take, will be used by the municipalities in lawful, albeit destructive competition with petitioner.

    First. Unless a different conclusion is required from the mere fact that petitioner will sustain financial loss by reason of the lawful competition which will result from the use by the municipalities of the proposed loans and grants, it is clear that petitioner has no such interest and will sustain no such legal injury as enables it to maintain the present suits. Petitioner alleges that it is a taxpayer; but the interest of a taxpayer in the moneys of the federal treasury furnishes no basis for an appeal to the preventive powers of a court of equity. Massachusetts v. Mellon, 262 U.S. 447 , 486, et seq., 43 S.Ct. 597, 601. The principle estab- [302 U.S. 464, 479]   lished by the case just cited is that the courts have no power to consider in isolation and annul an act of Congress on the ground that it is unconstitutional; but may consider that question 'only when the justification for some direct injury suffered or threatened. presenting a justiciable issue, is made to rest upon such an act.' The term 'direct injury' is there used in its legal sense, as meaning a wrong which directly results in the violation of a legal right. 'An injury, legally speaking, consists of a wrong done to a person, or, in other words, a violation of his right. It is an ancient maxim, that a damage to one, without an injury in this sense (damnum absque injuria), does not lay the foundation of an action; because, if the act complained of does not violate any of his legal rights, it is obvious, that he has no cause to complain. ... Want of right and want of remedy are justly said to be reciprocal. Where therefore there has been a violation of a right, the person injured is entitled to an action.' Parker v. Griswold, 17 Conn. 288, 302, 303, 42 Am.Dec. 739. The converse is equally true, that where, although there is damage, there is no violation of a right no action can be maintained.

    Second. The only pertinent inquiry, then, is, What enforceable legal right of petitioner do the alleged wrongful agreements invade or threaten? If conspiracy or fraud or malice or coercion were involved, a different case would be presented, but in their absence, plainly enough, the mere consummation of the loans and grants will not constitute an actionable wrong. Nor will the subsequent application by the municipalities of the moneys derived therefrom give rise to an actionable wrong, since such application, being lawful, will invade no legal right of petitioner. The claim that petitioner will be injured, perhaps ruined, by the competition of the municipalities brought about by the use of the moneys, therefore, presents a clear case of damnum absque injuria. Stated in [302 U.S. 464, 480]   other words, these municipalities have the right under state law to engage in the business in competition with petitioner, since it has been given no exclusive franchise. If its business be curtailed or destroyed by the operations of the municipalities, it will be by lawful competition from which no legal wrong results.

    What petitioner anticipates, we emphasize, is damage to something it does not possess-namely, a right to be immune from lawful municipal competition. No other claim of right is involved. It is, in principle, as though an unauthorized loan were about to be made to enable the borrower to purchase a piece of property in respect of which he had a right, equally with a prospective complainant, to become the buyer. While the loan might frustrate complainant's hopes of a profitable investment, it would not violate any legal right; and he would have no standing to ask the aid of a court to stop the loan. What difference, in real substance, is there between the case supposed and the one in hand?

    The ultimate question which, therefore, emerges is one of great breadth. Can any one who will suffer injurious consequences from the lawful use of money about to be unlawfully loaned maintain a suit to enjoin the loan? An affirmative answer would produce novel and startling results. And that question suggests another: Should the loan be consummated, may such a one sue for damages? If so, upon what ground may he sue either the person making the loan or the person receiving it? Considered apart, the lender owes the sufferer no enforceable duty to refrain from making the unauthorized loan; and the borrower owes him no obligation to refrain from using the proceeds in any lawful way the borrower may choose. If such a suit can be maintained, similar suits by innumerable persons are likewise admissible to determine whether money is being loaned without lawful authority for uses, which, although hurtful to the complainants, [302 U.S. 464, 481]   are perfectly lawful. The supposition opens a vista of litigation hitherto unrevealed.

    John Doe, let us suppose, is engaged in operating a grocery store. Richard Roe, desiring to open a rival and competing establishment, seeks a loan from a manufacturing concern which, under its charter, is without authority to make the loan. The loan, if made, will be ultra vires. The state or a stockholder of the corporation, perhaps a creditor in some circumstances, may, upon that ground, enjoin the loan. But may it be enjoined at the suit of John Doe, a stranger to the corporation, because the lawful use of th money will prove injurious to him and this result is foreseen and expected both by the lender and the borrower, Richard Roe? Certainly not, unless we are prepared to lay down the general rule that A, who will suffer damage from the lawful act of B, and who plainly will have no case against B, may nevertheless invoke judicial aid to restrain a third party, acting without authority, from furnishing means which will enable B to do what the law permits him to do. Such a rule would be opposed to sound reason, as we have already tried to show, and cannot be accepted.

    If there are conditions under which two distinct transactions, neither of which, apart, constitutes a judicially remediable wrong, may be so related to one another as to afford a basis for judicial relief, such conditions are not to be found in the circumstances of the present case.

    What we have now said finds ample support in the decided cases. Among the decisions of this court, and directly in point, is New Orleans, M. & T. Railroad Co. v. Ellerman, 105 U.S. 166 . In that case, the railroad company was authorized by its charter, among other things, to obtain and afterwards manage, use, and enjoy wharves and the appurtenances thereto 'in connection with its railroads.' A Louisiana statute, Act No. 28 of 1868, conferred upon the railroad the power to obtain and thereafter to own, maintain, and use, suitable wharves, [302 U.S. 464, 482]   etc., 'connected with and incidental to said railroad.' Pursuant to this authority, the railroad company acquired property which it used as a wharf and which, although limited by the statute and its charter to use for railroad purposes, it leased to certain persons for the mooring of vessels and the loading and unloading of cargoes upon and from all vessels of a kind designated. Ellerman operated certain public wharves under a contract with the city of New Orleans giving him the right to collect revenues derived therefrom. He brought suit to enjoin the execution of the lease of the railroad wharf. This court held that he was without legal standing to maintain the suit-his only interest being to prevent competition with himself as a wharfinger, which the more extensive and challenged use by the lessees of the railroad wharf would create, and his claim for relief resting only upon the allegation that the use proposed by the lease was beyond the corporate power of the railroad company to grant. 'But if the competition in itself, however injurious,' we said, 105 U.S. 166 , at pages 173, 174, 'is not a wrong of which he could complain against a natural person, being the riparian proprietor, how does it become so merely because the author of it is a corporation acting ultra vires? The damage is attributable to the competition, and to that alone. But the competition is not illegal. It is not unlawful for any one to compete with the company, although the latter may not be authorized to engage in the same business. The legal interest which qualifies a complainant other than the State itself to sue in such a case is a pecuniary interest in preventing the defendant from doing an act where the injury alleged flows from its quality and character as a breach of some legal or equitable duty. A stockholder of the company has such an interest in restraining it within the limits of the enterprise for which it was formed, because that is to enforce his contract of membership. The State has a legal interest in prevent- [302 U.S. 464, 483]   ing the usurpation and perversion of its franchises, because it is a trustee of its powers for uses strictly public. In these questions the appellee has no interest, and he cannot raise them in order, under that cover, to create and protect a monopoly which the law does not give him. The only injury of which he can be heard in a judicial tribunal to complain is the invasion of some legal or equitable right. If he asserts that the competition of the railroad company damages him, the answer is, that it does not abridge or impair any such right. If he alleges that the railroad company is acting beyond the warrant of the law, the answer is, that a violation of its charter does not of itself injuriously affect any of his rights. The company is not shown to own him any duty which it has not performed.' Supporting cases are cited. See, also, United States v. Dern, 63 App.D.C. 28, 68 F.2d 773. Compare Edward Hines Trustees v. United States, 263 U.S. 143, 148 , 44 S.Ct. 72, 73; Sprunt & Son v. United States, 281 U.S. 249, 256 , 257 S., 50 S.Ct. 315, 318; Milwaukee Horse & Cow Comm. Co. v. Hill, 207 Wis. 420, 423, 430-432, 241 N. W. 364.

    The Chicago Junction Case, 264 U.S. 258 , 44 S.Ct. 317, is not to the contrary. There, suit was brought by certain railroad companies to set aside an order of the Interstate Commerce Commission authorizing a competing company to acquire a terminal road. Answering the contention that complainants were without the legal interest necessary to entitle them to challenge the order, this court held that the right to sue arose in virtue of a special interest recognized by certain provisions contained in Transportation Act 1920, 41 Stat. 456, and under section 212 of the Judicial Code, 28 U.S.C.A. 41(27) note, which gave any party to a proceeding before the commission the right to become a party to any suit wherein the validity of an order made in the proceeding is involved. In this view, the Ellerman Case was thought to be inapplicable. A reading of the case in connection with the [302 U.S. 464, 484]   dissenting opinion shows very clearly that, but for express statutory provision creating a different rule, the decision in the Ellerman Case would have been controlling.

    The precise question here involved was decided, in accordance with the view we have expressed, in Duke Power Co. v. Greenwood County, 4 Cir., 91 F.2d 665, 676; Greenwood County v. Duke Power Co., 4 Cir., 81 F.2d 986, 997. Compare Arkansas-Missouri Power Co. v. City of Kennett, Mo., 8 Cir., 78 F.2d 911. See, also, City of Allegan v. Consumers' Power Co., 6 Cir., 71 F.2d 477. The Greenwood County Case, supra, is now pending in this court upon certiorari, and will be determined upon the authority of our present decision.

    Frost v. Corporation Commission, 278 U.S. 515 , 49 S.Ct. 235, relied upon by petitioner, presents an altogether different situation. Appellant there owned a cotton-ginning business in the city of Durant, Okl ., for the operation of which he had a license from the Corporation Commission. The law of Oklahoma, Comp.Laws 1921, 3713 (17 Okl.St.Ann. 42), provided that no gin should be operated without a license from the commission, which could be obtained only upon specified conditions. We held that such a license was a franchise constituting a property right within the protection of the Fourteenth Amendment; and that while the acquisition of the franchise did not preclude the state from making similar valid grants to others, it was exclusive against an attempt to operate a competing gin without a permit or under a void permit. The Durant Co-operative Gin Company sought to obtain a permit from the commission which, for reasons stated in our opinion, we held would be void and a clear invasion of Frost's property rights. We concluded that a legal right of Frost to be free from such competition would be invaded by one not having a valid franchise to compete, and sustained Frost's right to an injunction against the commission and the Durant company. See Corporation Commission v. Lowe, 281 U.S. 431, 435 , 50 S.Ct. 397, 398. The difference between the Frost Case and [302 U.S. 464, 485]   this is fundamental; for the competition contemplated there was unlawful while that of the municipalities contemplated here is entirely lawful.

    We deem it unnecessary to review the many other cases cited by petitioner where suits against officials have been sustained. An examination of them will disclose the presence of fraud, coercion, malice, conspiracy, or some other element or condition of controlling force-none of which, as shown by the findings which we have accepted as unassailable, exists in the present case.

    Decrees affirmed.

    Mr. Justice BLACK concurs in the result.

    Footnotes

    [ Footnote 1 ] Chapter 90, 48 Stat. 195, 200, 40 U.S.C.A. 401 et seq.

    [ Footnote 2 ] Chapter 48, 49 Stat. 115, 119, 15 U.S.C.A. 728 note.

    [ Footnote 3 ] See Oppenheim v. City of Florence, 229 Ala. 50, 155 So. 859.

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