Alabama Power Company v. Alabama Electric Cooperative, Inc.

below, a full after hearing, found both decedent agent understood defendant’s deprive

exclusionary provision would beneficiary in of double insured’s

demnity in acci the event insured was dentally airplane piloting kiled while paid premium in that an extra coverage”; that, “full aviation understanding pay of this and this

view ment, any possible

if there as to doubt meaning coverage” “full aviation against the that doubt should be resolved

insurer.

Judgment $10,000 below plaintiff.

interest was awarded to the agree disposition

We with the below.

Judgment affirmed. COMPANY,

ALABAMA POWER Appellant, COOPERATIVE,

ALABAMA ELECTRIC al., Appellees. INC., et

No. 23016. Appeals States Court Circuit. Fifth

April

RIVES, Judge: Circuit Company (hereafter Alabama Power Company) complaint Power filed its against Rural Electrification Adminis- (REA), Coop- tration Alabama Electric erative, (AEC), Clapp, Inc. Norman M. REA, Depart- Agriculture Secretary ment of Agriculture. complaint prayed preliminary permanent for a in- junction restraining the consummation $20,350,000.00 or use of a loan from purpose REA to AEC for the of financ- operation the construction and generating plant high voltage elec- tric transmission and distribution lines. prayed separately judgment for a avoiding 35-year all-requirements certain electric contracts between AEC cooper- and fourteen electric distribution laws, atives as violative sought to recover from AEC treble damages, attorneys’ costs and fees. and, The defendants moved to dismiss alternatively, judgment. summary for support Affidavits were filed in of and opposition plaintiff’s motion preliminary injunction for and the de- summary judg- fendants’ motions for court, opinion ment. The in an district reported F.Supp. in 249 denied plaintiff’s preliminary motion in- junction granted the several mo- tions of the defendants dismiss the action. court district held Company standing Power had en- join the consummation of the REA loan. 35-year all-requirements electric power contracts the district held Balch, Bingham, S. Eason John Bir- governmental were the result valid mingham, Ala., Hawthorne, H. Frank and, hence, action not violative of the Montgomery, Ala., Hancock, James H. agree- we Since are in Birmingham, Ala., appellant. court, ment district what was Boskey, Washington, C., Bennett D. said in opinion its able need not re- Williams, Montgomery, Ala., M. Jr., J. - peated opinion and our can be brief. Beers, Jr., Andalusia, A. Ala., L. Alan Rosenthal, Harvey Zuckman, Attys., S. L. argues Dept. Justice, C., Washington, D. standing judicial to seek review appellees. the REA loan either as made in violation RIVES, “central station service” Before limita GEWIN GOD Judges. BOLD, Circuit tion contained in 4 of Section the REA remedy in the courts but is not being upon Act,1 or conditioned Congress.” F.2d at 865. laws.2 As to violation of the REA thought the claim of had been earlier The same repeatedly Act, held that it has been expressed Circuit the D.C. result Light case, increased City Power & Co. Kansas company private power supra. F.2d at 931. As standing enjoin give the Eighth it sufficient by in Rural later said the Circuit agency.3 making by a loan a federal of North- Administration v. Electrification of The answer to the claim Co., 1967, ern Power 373 F.2d States indicated the under was 686, 700: Light City v. & Co. Kansas Power “Congress steadfastly refused to has McKay, clearly supra 3, note and was judicial provide U.S.C. review 7 de- in the Fifth Circuit case furnished Act.26 This si- 901 of REA after the district cided some months Schilling Rogers, “26. See, g., v. 363 e. case, instant decision Rural court’s 1288, 666, at 674. 80 S.Ct. U.S. v. Electrification Administration Cen- 1478, 1294, Justice 4 L.Ed.2d where Co., supra Electric note tral Louisiana Harlan said: “ point that in this Act ‘The There, this 3. Court said: Enemy [Trading Con Act] with the history gress of of advertent to the role “From the entire was specific any courts, absence ad- Act and its Electrification Rural ju provision for kind area of of totally convinced we are ministration strongly participation indicates dicial Congress enacted or never has that purpose legislative there be no * Agency * * by loans intended participation [citing Rives, rel. v. States ex Work in the courts. reviewable should be 252, 175, 182, 69 L. S.Ct. 45 267 U.S. provision for The Act itself makes 561].’ Ed. allega- By judicial review. loan attempts In and 1963 were 1962 Complaints are in- we tions of Congress amend- bills into to introduce thorough of manner Act formed Rural Electrification hearings judicial provide public for Congress ridden herd on has approving loans. review of orders Congressional the REA. Committees reported out were not These bills promulgation Bul- REA caused Hearings on Pood committee. say 111-3, appellees letin now Agriculture Act of 1962 before House Cong., Agriculture, on 87th Committee Certainly, the de- has been violated. Sess., pp. H.R. See also 1st 680-681. Congressional mands Committees 7213, Cong., 1st H.R. 88th 6852 and Appro- not have the force of law. Con- Hearings do Sess.; before House Department priations Committee gress not to enact these seen fit 1964, Appropriations Agriculture evidently law, particular into demands Sess., p. Cong., 374. 1st 88th being rely on the most content premised con- could be lence deadly constantly in its sword own supplier could cern is, hands, the sole control loans otherwise interfere with purse of which the loans made. out the Administra- in each instance where Regardless outrageous suppliers proposal public or un- how tor finds may seem, making unreasonable.” fair this loan 366, 118, 1939, TVA, 1. v. U.S.C.A. 904. 7 City 543; & Power Kansas 83 2. 2 1 and Act Sections U.S.App. 1955, McKay, Light v. Co. Clayton Act, and Section 3 den., 924, 273, cert. F.2d D.C. 1, 2 U.S.C.A. §§ 780; 884, 137, 100 L.Ed. S.Ct. U.S. v. Administration 1938, Company Ickes, Rural Electrification Alabama Power Co., 5 Cir. 374; Electric Louisiana Central 82 L.Ed. also Hardin Co., 354 F.2d 859. See v. Greenwood Duke Power Kentucky Utilities L. 381; 19 L.Ed.2d Co. Power Tennessee Electric Ed. purchased Ad- and the brief, AEC under the review plaintiff 1946, 5 Members from Gulf Procedure ministrative (2) Company; loan precluded 1009, is U.S.C.A. § necessary protect exception effective- initial statute’s security (i) pre- ness and of AEC and the “Except statutes of review: plaintiff (2) agency had ac- Members since judicial review clude through agency its activities demonstrated dis- tion is law committed ” * * Act, deprive intent The REA cretion existing potential to the discre- Members commits U.S.C.A. § making areas, in their consumers service the Administrator tion of electrification, dependence since includ- continuance of rural of loans ing security upon plaintiff adequacy AEC and Members only supplier fails as wholesale bly would inevita- The statute not such loans. judicial review, assist and facilitate such activities provide but when for light part plaintiff. purpose of of the the its construed in legislative history, the statute and of “As section 4 authorized of the oversight Administrator’s retains 904), (7 RE the U.S.C. loan to Congress itself of in the hands actions repaid period AEC is to be over a precludes judicial review. thirty-five years. (35) It has been deny rationale would The same practice many years the for of REA plaintiff Power the Administrators, including affiant, the enjoin loan consummation require making condition provision for secu invalid or its claimed generating and transmission loans rity directly pursuant to section 4 to that neither Further, settled AEC, such as borrower shall Clayton Act was Act nor the year obtain contracts 35 with its gov restraint of intended to authorize (hereinafter ‘thirty- members called question A different ernmental action.4 all-requirements contracts’) year, five obligating might presented if the purchase them to all of their perimeter beyond outer went requirements electric extent statute,5 by the authority in him vested power the borrower shall have Kentucky v. expressed in Hardin or as energy purpose available. The “ * * * 3, supra note cited Utilities requirement of this tois assure that permissible range choices outside the borrower have a will market for The Ad contemplated the statute.” power generated transmitted discloses affidavit ministrator’s by the REA-financed facilities the cir arise under condition does repay thus be able to the loan. Such of this case. cumstances requirement is established customar- ily, imposed and was approving “My policy for AEC in this reasons case, in (1) exercise of it would REA ad- were: loan the aforesaid obligation savings ministrator’s significant result reasonably under section 4 to obtain Mem- AEC and the power to cost of adequate security for compared the cost loan and bers as Authority, 1966, 52; Port 1 Cir. v. 362 F.2d of America Mine Workers United 671-672, Benson, D.C.N.C.1957, 657, Stroud 1965, v. Pennington, 155 F. U.S. 381 Supp. 482; Miley 626; v. John Hancock 1585, Eastern Mut. L.Ed.2d 14 Co., D.C.Mass.1957, Life Ins. Mo F. v. Noerr 148 R. R. Conference Presidents Supp. 127, 1961, Inc., Freight, 81 tor 464; 523, v. Parker L.Ed.2d S. Ct. 5 Logging 307, Barker, & 341, See S S Co. v. 1943, Cir. Brown, 63 9 U.S. 317 1966, 617; McShane, v. 315; Rock F.2d Norton States L.Ed. 855, 859; compare Cir. F.2d Royal Co-op, 559- Ray, 1446; Pierson W. E. Airways, L.Ed.2d 288. Wiggins v. Massachusetts Inc. (7 repayment 4 of the RE Act U.S.C. within section assure 904).” upon agreed REA time between assurance, follow- further AEC. As requiring ob AEC to Thus practice, I long-established REA 35-year all-requirement tain sup- required the execution also coopera electric distribution with its agreement in Ex- plemental included doing noth tives, Administrator was plaintiff’s attached hibit B following simply ing unusual, but was paragraph complaint. As shown long-established customary below, the facilities for which loan clearly beyond the “outer practice, question will not be was made authority6 perimeter” of his placed operation before 1968 at into security for the loan. to determine on load forecasts the earliest. Based might Anything mean the ac less well approved, the loan was before security. inadequate ceptance Under energy will per require circumstances, these require- electric total available perimeter” mit boundaries the “outer period ments its members fact-finding by another be determined years than thereafter. no more body defeat the reasons would forecasts, AEC’s Based on same privilege. recognition the absolute energy power and in 1974 available Justice Harlan said Mr. What was represent no will more than 83% Matteo, Barr v. requirements in its members’ electric 3 L.Ed.2d year, percentage and will illuminating: 1434 is significantly year decline each there- important, thought “It has been after. Under contracts with government should free be officials AEC, free to the Members will be unembarrassed exercise their duties plaintiff purchase from and others damage respect by in the fear suits requirements their electric in excess of those done in the course of acts energy and available from duties —suits which would consume AEC. energies would other- time and which by “AEC is owned and controlled governmental serv- wise be devoted to merely its members and might is means ice the threat of which and by generate vig- they fearless, appreciably which transmit inhibit orous, administration effective electric themselves rather government.” policies of purchasing power than and transmis- sion service another In- source. Finally, unique question pre having organization per- stead of one sented must be transmitting forming generating, at answered. This is the first by private companies on federal tacks distributing function, en- AEC competitors there has loans to which gages operations first two on be- separate been a attack borrower per- half of its latter members alleged conspiracy those to be distributing operation. form the Be- of the an with it claimed violation separation opera- cause of this argued titrust is required tions serve consumers legislative nothing in the Act or its 35-year, requirements all contracts be- history which authorizes Adminis tween the Members were grant tration to to the bor necessary requirements to meet rower, AEC,8 very and that at the least might add, Or, member dis- we to its 7 U.S.C.A. though they tributing cooperatives, long quo- 7. See Mr. also Justice Harlan’s joined parties defendant. not been Judge opin- tation from Learned Hand’s Gregoire Biddle, ion in 2 Cir. 579; 581, appearing 177 F.2d 571-572, 79 S.Ct. 1339. pursue plaintiff also, has a rural America.” See Salt River against posi- Agricultural Project That AEC. antitrust suit & Power District upon FPC, tion, too narrow we think is based D.C.Cir. 391 F.2d 470. program conception of authorized judgment is therefore Congress. making of loans Affirmed. necessarily includes the Administrator ability of the existence and borrowers GODBOLD, Judge, dissenting: Circuit can be If such loans made. whom security the Administrator re- disagree my I must associates. quires can be undercut borrow- presents This ease bold clear damages er for com- mulcted in treble form judicially issues heretofore de- imposed plying with the condition interplay between, termined of the loan, making the the Administrator for hand, the one laws and the functioning the Act be then the will policy and, they represent national crippled, if defeated. To frus- avoid hand, on the other the Rural Electrifica- trating Congress, it must intent of policies tion Act1 and national of aid follow that cases where the Admin- to rural citizens electric without serv- istrator is immune from suit under the ice. In addition there are factual vital laws, the borrower is likewise n issues which have been neither deter- immune.9 reached, mined nor since the decision Supreme repeatedly Court has below was a dismissal for lack stand- that, held ing to sue. “ ** * upon a restraint where Three must issues be Dis- discussed. monopolization trade or the result overlaps others, cussion of each governmental action, op- of valid the relationship between them has been posed private action, no violation hazy previous at times in the case his- of the Act can made out.15 tory: Royal “15. (1) Standing to sue Co-op, United v. Rock anti- States 533, 993, 307 U.S. 59 S.Ct. trust laws of the United States. In 1446; Brown, 341, Parker v. 317 U.S. my opinion Company the Power 307, 63 S.Ct. 87 L.Ed. 315.” standing. Motors, 1961, Eastern R. Conf. v. Noerr (2) governmental Implied immunity 127, 529, 136, 523, 365 U.S. from the antitrust laws of the REA L.Ed.2d 464. Administrator, private citizens who Company him, private The Power deal would treat with and of citizens simply public utility. as a rival who deal between themselves as incident agree consequence We the recent to or in dealings with decision Dairy my Federal Power Commission Administrator. the Ad- view Cooperative, land implied 37 F.P.C. ministrator has no such immu- nity governmental coop 35 L.W. that rural as a electric officer whether something acting pub are pe- eratives more than within or without “outer utilities; they riphery authority.” lic pos- instrumentalities of his he If implied “They immunity United were chosen sesses such States. he cannot by Congress bringing purpose pass for the on to to immu- citizens abundant, energy dealings nize low cost electric them in their with him holding, fully appreciate In so wo Carnation v. Pacific Wsetbound Conference, 1966, 213, 218, from the antitrust is not lightly implied. People 709; to he State S.Ct. L.Ed.2d United States Commission, City Bank, 1967, California v. Federal Power v. First National 482, 485, 361, 368, 18 L.Ed. 54; L.Ed.2d States v. Philadel 2d phia Bank, 1963, National seq. 10 L.Ed.2d 7 U.S.C.A. 901 et prívate citizens to immunize them the or to Distributor fails terminate ex- an dealings each other. istent Supplier contract either the or the bring Administrator suit to enforce enjoy (3) If provisions. the termination immunity the existence implied act- was he upon depends whether which ing terminate, Distributor shall if au- of his limits the outer within Supplier approval with the the Ad- fact, issue thority, material is a ministrator of the Rural Electrifica- he to whether adjudicated, as yet request, tion Administration shall so limits. any existing within contract or contracts with of AEC cooperative, gally year cooperatives, are central without tribution between cooperative proval (Supplier) : plier power and tem or such The contracts arable ever, other than Distributor’s electric chase and Distributor tributor The contracts The executed its I. The direction, Administrator, Supplier majority describe do all-requirement-electric energy provisions of electric Supplier shall shall be to continue made with amplification, as part of so, cooperatives.” power and shall 35-year exclusive (Distributor) at such by AEC Distributor receive from Supplier for of shall and Distributor part thereof. available, provided, energy requirements for its power needs contracts loan terminate require the require the require suppliers its fourteen sell the contracts which time as position to Administrator. energy system a condition have such purchase electric from approval, and deliver AEC, required shall its contracts upon request all or a to the case. “certain Supplier all distributing distributing purchase all electric from AEC it until distributor dealing a shall contracts, have the may supply source extent how- Sup- pur- Dis- sys- sep- dis ap 35- le- at If which the three located in tion istrator to be obtained from deavor to agreed upon but are ineffective unless ly by requirement approved by the Administrator. Contracts are limitation, ance.3 suits in tributor he shall so ministrator, Section 1 of to enforce the proval or at the direction of other than tributor. the Administrator do so Distributor, power time as it Supplier shall have sufficient electric geographical source ^[*] cooperatives it and Section must Supplier all Distributor contract with a Supplier, necessary serve under the -v- Power be equity, AEC, may legally suits for select,, rate under a energy reviewed the Contract upon shall fail required by of the Power approximately area ^[*] obligations Supplier Florida. The than Supplier, located Company alleges purchases the Distributor and shall have the including, without being actions at provisions agree available of the Administrator, specific perform- revisions ^[*] Supplier at power supplier do with the to terminate least annual- requested to 13 distribu- so, provided the Admin- of the Dis- ^[*] state, Alabama, Contract, schedule, provided institut- 50% may of said at such law or Power if right ^[*] Dis- Ad- en- ap- be of if signatory, are not is ministrator to be a to tile distribution 2. The 35-year parties question the suit. contracts. It creates a party contracts. to the a he is claims of fact law of whether the Adminis- 3, infra. see footnote But party trator himself becomes “Supple- transactions part between AEC paragraph of dis- is 3. This Ad- Agreement,” tributors. to which mental

07Q alleges 35-year Company proscribed contracts whether contracts supplying nine They simply foreclose it from laws. will de cooperatives, present- these six of whom cline to scrutinize them. The com ly power, plaint stage receive all and three at this we take its —and part allegations power, receive of their as true —sets out a classic Company, supply Power and as conse- case of an exclusive contract serving quence Clayton it will be foreclosed from Section violates at least of the rural one-third areas because it forecloses the relevant The extent market a Alabama. substantial share of the line utility’s disputed of market Pennsylvania loss is a of commerce affected. fact, issue of but even as- Gas, Water & Power Co. v. Consolidated appellees Light sertions the share of Co., Elec. & Power 184 F.2d 552 is, my (4th Cir.), denied, relevant market involved cert. 340 U.S. opinion, (1950); as a matter law substan- S.Ct. L.Ed. 655 tial.4 Gas, Light Consolidated Elec. & Pennsylvania Co., Co. v. Water & Power Totally without relevance the con- is (4th Cir.), denied, 194 F.2d 89 cert. tention of that REA AEC has 343 U.S. 96 L.Ed. previous loans and in connection (1952). Tampa See also Elec. Co. v. 35-year required with each has similar Co., Nashville Coal contracts, Company but the Power (1961); 5 L.Ed.2d 580 not before claimed them to be viola- Standard Oil Co. of California tions of the There States, Standard Stations v. United right by prescription violate 93 L.Ed. 1371 theory gov- laws. This (1949); International Co. United Salt bootstrap ernmental action can itself States, validity expressly adopted state L.Ed. 20 While I view vio majority, who conclude that lation as unquestionable, otherwise if making the contracts the Administrator any question 35-year dura beyond perimeter was not the outer lays tion it to rest. is an authority “doing exclusive his he because dealing arrangement nothing unusual, simply that can but was fol- foreclose lowing customary long-established Company the Power for the rest of the practice.” century. twentieth States F.Supp. (N.D. American Can

Neither district nor majority Cal.1949).5 this court reach the issue Nor do I have doubt Certainly figure states the loss will be of two all- it cuts no at requirements par- stage, maybe never, customers and three that REA ar- tial-requirements gues provisions customers. brief its termination AEC concedes the Power lose, will contracts will not be exercised until ex- temporarily, approximately piration existing least wholesale total wholesale sales co- between distributors and Alabama Pow- 10% operatives municipal systems. er, existing if contracts are breached arguments appellees power company adequate Several will have an remedy damages. have relevance a factual determination to impact market, on the relevant if that law, Co., not be or established as a matter of also United States Pullman commerce, F.Supp. 123, (E.D.Pa.1943): of the extent of restraints juncture— long but have no relevance at this “As a killer i.e., weapon. serves a smaller area and term AEC contract is an effective capital oper- hardly has smaller investment One could a more favored ating Power; agreement revenue than Alabama service contract than an * * * gen- projections dealing quar- not based on AEC it will exclusive and a enough power century elapse all needs erate serve ter to of time to before cooperatives, the distributor one need to be concerned with new private companies patentee to will have chance terms. Even a so se- against passage meet need for the excess. cure of time.” 1715, 1733, 10 L.Ed.2d contracts, effects al- violating (1963). restraints leged, constitute Gas, Consolidated Act. Sherman Congress can, in- numerous

supra.6 legislation has, by express sub- stances Standing violate the contracts alone policies reflected the national ordinated - part of wider As laws. authorize so as to antitrust dealings they the anti- violate course government perform acts or officials characterize laws and so trust regard pursue policies without spectrum make it a viola- toas broader exemptions im- The antitrust laws. by the contracts The violation tion. are in- in some thus conferred munities pursue al- I do not clear that is so the official stances conduct between coerced legations that the Administrator dealings citizen, in others and the sign- cooperatives into the distribution private which the offi- between citizens them, ing factual issue. ap- if to review and cial is authorized immunity. proved the citizen has The Immunity II. carefully ex- have limited these courts pressly immunities conferred majority the Adminis- conclude The immunity scope in each instance Con- governmental defined enjoys a trator gress pro repeal of so as to tanto Clayton avoid Acts from the Sherman periphery the outer acts done within authority. this Examination his Marketing Agricultural Under inextricably with entwined premise is Agreement Secretary Agri- implications of the two consideration party culture become a to market- therefrom, the Administra- drawn ing agreements private citizens immunity private citi- extends tor’s handling agricultural com- for the (the AEC) him deal with zens who exempt from the anti- modities which between deal citizens who In trust laws. 7 U.S.C.A. 608b. § (the the distribu- themselves U.S. States v. Borden cooperatives) to or an incident tion (1939), 84 L.Ed. 181 dealings consequence of their Supreme declined broaden Administrator. specific general exemption into a found can be these immunities None of exemption from 1 of the Sherman § REA Act. agricultural marketing Act of the tips majority opinion hat to commodities so as to immunize market- principle that “[i] agreements private par- between lightly implied.” laws is grant Congress ties.7 “If had desired to People Federal of California v. of State immunity, Congress further doubt- 482, 485, Comm’n, less would have said so.” 308 U.S. at 903, 8 L.Ed.2d S. Ct. 60 S.Ct. at 84 L.Ed. at 192. fact, of construction canon “[t]his majority In the case before us find * * * indispensable the felt reflects governmental implied exemption policy mainte role of antitrust the blanket thereof then stretched to economy.” of a United States nance free dealing immunize Bank, exclusive Philadelphia contracts be- Nat’l hog-cholera hog-cbolera virus, serum and included contract Consolidated seq., agree per price fixing, U.S.C.A. 851 et se violation specifically exempted ments are from an it foreclosed com- Act. Also laws, titrust ex petitors U.S.C.A. market and from a substantial competitors. territory emption between further than divided extends no 558, agreement F.2d at Co-op. 184 itself. American Ser v. um Ass’n Anchor Serum F. 153 Secretary Agri- like manner 7. In (7th Cir.), denied, 2d 907 agreements cert. marketing 329 make culture 721, 57, (1946). anti- 67 S.Ct. 91 L.Ed. and handlers 625 manufacturers

681 light of national in the tive situation private parties, and the dis- tween Trucking transportation policy. McLean cooperatives. tribution States, 67, nn. 321 U.S. Co. v. United adopted by typical Con method “[T]he 21, 88 21, 20 & 370, nn. 20 & 64 S.Ct. gress it lifted the ban when (1944). 544, nn. 20 & 21 scrutiny approval Act is the tional Industrial tions of brokers and nous try;- Congress competitors ministrative n. not lift the has not made the antitrust Commission is mental action fully-held Congressional situations or relations in approve, interplay trust ICC to latory scheme, implicit public policy broader Commerce Commission8 consolidations, mergers, controls, com- inapplicable outside Congressional binations, Congress has amended the Interstate 1890.9 ICC, Commerce Act to 1170 n. 60 (giving examples of the code Socony-Vacuum Co., Compare policy subsequently expressed transportation, 60, govern designated presidential approval under transportation original authority in the context of a Coal Commission laws.10 The coal ignore the usual Subsequently, or to state field in the of antitrust S.Ct. the creation ban. Nor does industry). (1940). matter, action to create agreements public Oil has not transportation industry. derogation Recovery grant authority the SEC operation authority transportation indus- history approve field was applicable standards 846, dealers, The REA Act policy consider over Sherman Act of the Interstate representatives,” 310 U.S. United States general competi- policies, for the duty, or pervasive regu- reins over the exemplified 84 L.Ed. authorized to fix competition derogation of Act, reveals over associa thereof. approval, price to create confer exemptions repeatedly, machinery as an desirable, effect on rates, the ICC 150, Bitumi govern- permit wholly fixing to the for a 1129, care- upon anti- Na ad- all or panied by regulation, vasive, by government bodies state —of tries the courts have laws or implied exemption from R.R. the State of sustaining of the antitrust had been acy of railroads to fix rates in violation Georgia tion to enforce them. L.Ed. 810 With veto conspiracy single hands ing. clear and the new results through extent of the merce Act and the Sherman Act for saying implication ing way dividual freedom of find no warrant State or a railroads, U.S. at But it is ^[******] It is sufficient here to note that we 89 L.Ed. at Ass’n, governmental fixing emphasis respect many regulated repugnancy deprives Congress carrier. The aof approved monopolistic privileges (1912); and then rates clothes with Pennsylvania R.R., Georgia, 456-57, 458-59, elementary to discriminate region, combination of carriers a over rates laws, although repugnancy. rates, the courts of chose 89 L.Ed. 1051 in the Interstate Com- authority only pro between the old law of an rejected States v. grant to use coercion in action sometimes 1063. See in the type shipping the ICC: favored. enjoin did proposed by See State injured party, —federal tanto to to fix former put carries repeals regulation a legality against rate mak- eliminate Terminal the rates industry, jurisdic- conspir- (1945), also, all-per- Only accom- theory indus- joint giv- in- an or a ¿ history See the Commerce discussion of Interstate Transport Co., seq. 1 et United States v. Marshall U.S.C.A. 88 L.Ed. §§, 9. 15 U.S.C.A. 1-7. 682 Carnation ference, nonproducer Co. v. Pacific Westbound Con which has interests in its 213, 781, 383 U.S. 86 15 S.Ct. participating membership, though even (1966); banking, L.Ed.2d 709 United participation nonproducers is of the Philadelphia supra; Bank, States v. Nat’l relatively small. insurance, United v. South-East States Marketing The Fishermen’s Collective 533, Ass’n, ern 64 Underwriters 322 U.S. market Act12 collectively, fishermen to authorizes 1162, (1944); S.Ct. L.Ed. tele 88 1440 Secretary In of the phone, United States Tel. Co. Central v. terior issue cease and desist 1913); (6th Co., Union Tel. gas 202 F. 66 Cir. organizations restrain orders if such energy, and electric In re American enhancing unduly trade to the extent of (6th Fuel & 223 Cir. Power 122 F.2d Congressional prices. author Neither 1941); Pennsylvania Water & Power marketing' cooperative as ization of Gas, Light Elec. & Co. v. Consolidated Secretary nor sociation of the television, Co., supra; radio and exempts fishermen and their association America, Corp. States v. Radio Hint or union from the antitrust 334, 457, 358 3 354 U.S. 79 L.Ed.2d S.Ct. Ass’n, 131 v. Columbia River Packers ; (1958) gas, People natural of State (9th 1942). F.2d 88 Cir. Com., California v. 369 Federal Power 482, 901, 82 8 54 U.S. S.Ct. L.Ed.2d specific exemptions There various (1962); export associations, trade Unit from antitrust in the labor field. Exports

ed Ass’n United Alkali Clayton States Section 20 Act13 withdrew 1120, States, 196, 89 325 U.S. general prohibitions from (1945). L.Ed. 1554 specifically enumerated Act Sherman practices by prohibiting labor unions Capper-Volstead Act11 authorized injunctions. Norris-LaGuardia14 fur agricultural producers prepar- unite in jurisdiction ther of federal narrowed the market, marketing, equity power disputes. There labor necessary products, and to make contracts determining after if union con trade ex- antitrust for that collaboration. The duct is one must a violation of Sherman thereby granted emption is much broader Sherman, read and 20 harmonize § general provision 6 than Clayton § Clayton, and Norris-LaGuardia. United agricultural excepts Act which Hutcheson, 312 61 S. States and horticultural (1941); Apex Ct. 85 L.Ed. 788 But Borden held that Sherman Act. Hosiery Leader, 469, 60 Co. v. 310 U.S. Capper-Volstead Act not cover does (1940). But S.Ct. L.Ed. field entire immunity Congress granting to labor conspir- authorize combination immunity organizations give did not acy producers. persons than non-labor of labor with combinations groups. Virginia also, Maryland Milk & Bradley No. Allen Co. v. Local States, 362 Producers Ass’n v. United IBEW, 4 L.Ed.2d Court, (1945). Supreme nothing Bradley, in Allen found Growers, Case-Swayne v.Co. Sunkist Congressional history indicate that Inc., legis 19 L.Ed. suggested, considered or was ever 18, 1967), (Dec. latively unions, 2d holds that while determined granted by exemption engage Con in conduct free themselves gress granted producer cooperatives under trade, restrains were to be give abetting Capper-Volstead immunity aiding does not extend to manu violating association and traders facturers 11. 291-292. 13. §§ U.S.C.A. U.S.C.A. seq. et 15 U.S.C.A. 521-522. §§ U.S.C.A. Congressional Act, availability (each of such an to lend de- based on Congress.15 solely lending

exemption being particular termination that power authorized is in the national inter- cooperatives have no The distribution est) are, reason routine administra- special under the antitrust status collateral, sufficiency tive control over being cooperatives. “It reason their implied power vested carve with to out Congress significant has that when economy exempt national enclaves permit inter- desired to to deal free of the borrowers system competitive of busi- with the Jere legisla- ness, expressly it has done so Congressional Act, its States, tion.” Press United Associated granting history, purpose reveal 1422, 89 any power oper- to to (1945). L.Ed. 2013 policy.16 ate free of national antitrust judicially-created immunities beyond question purpose 4 of the REA that ease on It is this are rested § Act, provision Administra- 904. The of the station service central U.S.C.A. § give private squarely puts requirement of the his utilities some tor towas § protection competition 35-year power and obli- on his measure of gation reasonable Pro- 4 to result of REA loans.17 obtain created as a loan, security “loans shall be of REA- for the that tection from lawful relating to has held not a terms and conditions financed been on such borrowers moneys loaned and expenditure and a matter of the constitutional entitlement Congress. solely security Administra- But it flies therefor as the for relief boggles Congressional the im- intent It of the tor shall determine.” teeth myriad suggest protection private agination expressed that to § 904— power having government agencies com- from a described area of utilities 15. “It nate ions, groups can ing by al petitive dom, kets, ness such authority trate ed on their own ture prising thing tion prevent misapplication business business trust exceptions emptions “There completely draw congressional purpose. markets to groups, by combining primary if Congress feared the concentrated can fix unions must be legislation of business business was labor ever, permitting a primary Congress monopoly. to is, granted competition and to empower to aid business with assurance shift our to little regulate interstate commerce however, complete has it been claimed activities, Congress unions, to abdicate its monopolistic prices objective a if remembered that groups general Congress, more the unions were objective. prices. organizations to labor unions % society interested and divide It had bestowed prohibit one been than a themselves. of all would legislative groups to frus- of that with line which we economy. ^[*] from a com- unreviewable constitution- to For. intended to We know futile we be a sur- price the Anti- labor un- proscribe order to domi- up to preserve business the ex- if busi- intend- legisla- before, special follow carry sit mar- upon plan. ges- Sel- fix- to 16. If loan? debates 5295, 5307; dealing House burn. during utility would be an additional 810, 811, 1948-1949. Commerce, scope violation of the Act.” outlaw business monopoly participates, we. were parallel petition bill we people bill Cong.Rec. Cong.Rec. “May 72-73 he summarized not, Hearings compete the House debate: Comm, contract who do not now have it — had hope I is no less such because a 65 S.Ct. at citizen to make an exclusive both going say 74th (1936). i.e., competitor; this and such 3305-06 written on the on Interstate them. lines or enter with monopolies. can Cong., (1936), bill, bring implied House, S. 3483 Before punish somebody he See also intending anybody. By purpose gentleman (1936). * participation 2d exclude a electrification to question condition of a can ** Sess., power 89 L.Ed. at theory A he into Cong.Rec. ” Mr. it. business Foreign Senate, require private go union Ray- com- floor This 809- 56- out bill, we a petition ity the same 904 into refer distill first sentence of the fol- —to lowing part opinion: the Administrator an authorization to impunity immunity, require, ac- Accordingly, it has held been utility private tion freezes out upon where a restraint trade or mo- By competitor. some as a unrevealed nopolization gov- result of valid partial giv- process alchemy shield action, opposed ernmental private as to against utility private en the the REA action, no violation of the Act can be by is converted into a borrower out. upon These decisions rest hands. sword in the borrower’s gov- fact that under our form of question ernment by The whether major- a law authorities relied on pass, ity kind general passed should or if principle govern- for a be enforced, responsibility is the exemption mental of the from the antitrust appropriate legislative support pronounce- do or not executive so broad a government long branch of so ment. as law provi- itself does not violate some Brown, 341, Parker v. 63 S. sion of the Constitution. (1943), Ct. 87 L.Ed. 315 was con limiting language The the second by cerned with action the State of Cali quite plain gov- sentence makes setting up marketing fornia in a raisin ernmental action referred to is of the program. The state non command vel particular kind Pri- before Court. sovereign, was held the act of the marily pro- the Court was concerned with by forbidden Act.18 E. W. tecting legislative process. speaks Wiggins Airways, Inc. v. Massachusetts (365 136-137, at U.S. 81 S.Ct. at Authority,19 Miley Port and Han v. John 470-471) L.Ed.2d at of associations seek- cock Mut. Ins. Life Co.20 are concerned persuade legislative to or execu- sovereign immunity the state particular regard tive take to action with and follow Parker v. Brown. passage laws, to or enforcement significance representative in a democra- Eastern R.R. Conference v. Noerr Mo- cy making people their wishes Freight, Inc., tor S.Ct. known representatives, to their (1961), 5 L.Ed.2d 464 held that a peti- constitutional issue of the to violation of the Sherman Act cannot be tion. predicated upon attempts influence the United Mine Workers of America v. passage or enforcement of laws. Pennington, 381 U.S. distinguished agree- between (1965), 14 L.Ed.2d 626 was concerned legislation jointly ment or law seek joint private efforts of citizens to agreements enforcement and traditional- public officials, approaches influence ly Act, condemned the Sherman Secretary union Labor against treating defendants’ con- warned large companies to establish a minimum though common-law duct as it were a wage Walsh-Healey under Act21 major- Presumably trade restraint. impossible which would make it out, pointed “we have The court the Sherman Act did not undertake municipality question prohibit.” (317 or of the state U.S. at at becoming participant 327). in a at agreement combination others or (1st 1966). 19. 362 F.2d 52 Cir. There 351-352, trade,” (317 restraint Wiggins is an over-broad dictum in and, 326) L.Ed. at at general governmental immunity. There enforcing adopting “the state conspiracy case, only was no program pro-rate or made no contract “simple agreement arrangement.” conspiracy agreement and into no entered F.Supp. (D.Mass.), aff’d, 20. 148 to establish mo- of trade or restraint (1st 1957). F.2d 758 Cir. imposed nopoly but, sovereign, re- government seq. an act of U.S.C.A. et straint summary judgment compete. companies tions for and motion smaller Noerr, plead- preliminary injunction, plaintiff held, en ings, exhibits, damages arising affidavits, Sec from the and briefs titled to argument. determinations, retary’s Walsh-Healey The district court freely majority any governmental immu in this have drawn not because support nity was “the act affidavits exhibits action but because his Complaint public not claimed conclusions. official who is of a (381 alone, sharpened answer form co-conspirator.” at but abe 637). 1594, 14 pleadings and The when at the other L.Ed.2d aided exhibits, supporting claimed affidavits REA Administrator squarely conspirator.22 factual issue of whether raise a acting or (E. the Administrator is within F.Supp. Benson, 482 v. 155 Stroud question without his outer limits. That sovereign D.N.C.1957), immu refers to fact dis- of was not determined the laws, quoting nity the to the antitrust concerning trict court. language Brown Parker involved). (which state action was majority say the that conspiracy, allegation of There was no require fact-finding body permit a or only validity order the the of an of of perimeter determine the outer bound Secretary Agriculture, and there was of aries, range permissible or ‘the of choices of trade. no restraint contemplated by statute,’ de the would proposition support a cases do not The recognition feat the for reasons immunity. governmental general If of privilege against government of officials Congress principle a is such there suit, Matteo, relying upon U. Barr v. 360 long under a proceeding time for a been 79 L.Ed.2d 1434 S. 3 govern- providing for misapprehension in I not understand this state do they officers, whom with those ment itself, ment. Barr numerous specific in deal, exemptions cases, perimeter determined outer scope. varying in nature and boundaries: of fact The issues the here taken III. The material fact that action perimeter peti- was outer of within the possible acknowledge majority a The duty enough tioner’s line of is to ren- laws if the application of privilege despite applicable, der beyond the outer Administrator went allegations complaint malice in the of authority granted him perimeter of the * * * by statute. submitted were motions dismiss S.Ct. at The along mo- court, McShane, with the also Norton F.2d to the district Pennington monop holding of scheme to restrain 22. The first tinued pub- banking particu influence olize a concerted effort ‘commercial general regardless industry intent not lar and the financial lic officials is There is no Act. within the More the Sherman State Arizona.’ within case, over, complaint question present alleges but in the such Attorney recognition that Noerr holding acts a were is General govern- conspirator. particular participating kind of a those of a is about Brown, In Parker v. action. mental recognition judicial (1943), Additional specifically carte blanche Noerr establish reserved question immunity applicability governmental v. Val- is Harman (9th Bank, ley Cir. F.2d ‘a case of state Nat’l municipality partici 1964): becoming or pant private agreement “Nonetheless, not neces- Noerr does in a or combina present trade,’ sarily tion bar relief under others restraint complaint complaint. be read can The and Noerr does not hold that the Act joint alleging appellees’ inapplicable effort would be a situa Attorney General was tion.” influence long-con- larger, in a element F.2d at 566. but one 1964). couple priv- record, (5th not sustained Cir. To ilege perimeter shows the Administrator acts done that whether within investiga- immunity judicial of his author- was within the outer limits with lies, ity serious, perimeter disputed and material is- tion where of where the end, “permissible ex- would sue of fact. the pand choices” any privilege into complaint alleges repeatedly act done. proposed loan, proposed use funds, originated judicial central privilege of the loan violate the sta- requirement officers, some 904.23 The tion service has been extended but greatest position of the on these al- has its defendants officers. executive defamation, legations loan vitality but is far from clear. The field con- implication to civil commitment letter REA to AEC has been extended limiting McShane, su- none generally. tains several conditions but Norton v. torts purpose. pra at 858. use of the funds 332 F.2d footnote petition part privilege least the state me have the As of a to secure seems to proviso required by force, all, case force at consent the third if authority— Depart- were filed executive officer’s where the wrong “permissible Finance Alabama his against choices”—and ment of of the State both of privilege Trustees is asserted resolutions of the Board of which They op- by Congressional enactment. call and for construction' are created AEC. “generating privilege and the Con- facilities ad- of officer eration of the transmission, gressional authority grant distribu- to or withhold wrong electric ditional lines, together immunity then all statutory the tion and service give necessary ef- pull appurtenances, To areas directions. in rural in opposite along [describing areas], is to privilege in that situation in fect grant by the to by approved to the Ad- indirection an routes as shall be Congress, cre- statutory which Electrification offense ministrator of the Rural offense, ating purpose to withhold. of fur- saw fit for the Administration the may nishing government energy in- not thus officer to consumers not electric Congressional receiving intent. central electric serv- himself from station sulate by approved routes ice.” Whether disclaiming propriety of While areas, Administrator in non-rural majority doing make fact finder’s so the receiving not and whether “consumers finding did not that the Administrator may be central electric station service” go beyond perimeter or exceed his outer areas, depend on construc- in non-rural choices,” basing “permissible it on his tion of the resolutions. customary practice affi- his reciting “policy feasibility study reasons” for davit approving his A for was made AEC by finding, consulting firm, not engineering the loan. That by court, inappro- January reported made priately district is on to AEC.25 It appellant made court. It makes mention of the no consumers, 7,600 23. Administrator is authorized “The and in excess of indus- * * * empowered make loans trial and users. * ** rural electrification report says: 25. The financing purpose of construction “Expansion power supply generating plants, operation electric Coopera- your transmission facilities transmission and distribution lines required following is tive to meet furnishing systems of electric objectives: (a) increasing To elec- serve energy persons in rural areas who systems, (b) tric demands member receiving service.” central station not provide improved To members, service to additional says (c) petition fur- also that AEC reduce This To costs. electricity coop- (d) named electric To transmit nishes from South- plants (SEPA) that industrial eastern Power eratives and Administration indirectly preference electric of over serves needs member cus- as families, 9,900 engineering 25,000 residential farm tomers. As a result of stud- applied not state who cause the circuit It does court had standard § wrong where standard Alabama members” are and review. “additional Co-op., Inc. Elec. v. Alabama Power located. 278 Ala. So.2d before asserted The Power pass on declined central station Alabama Department of Finance of alia, issue, pointing out, service inter being vio was its contention City there had the Kansas case finding Department lated. been dis- a decision the merits pro thereon, saying tersely AEC’s question trict court the contract public and is posal need “serves some provi- did not violate the central station review public limited interest.” On sions. Department’s certiorari action quashed order When the case now us reached state circuit before sup Department not af Finance the district court defendants filed the competent Clapp. evidence. ported fidavit of Perti by sufficient complied purpose referring purposes nent extracts If found appeal margin.27 Su Alabama This On the loan are set out h.26 wit preme be- reversed and rendered is the affidavit from which same 27. “Such REA, pursuant ies REA loith electric funds No. 3519 similarly also intended able them million Alabama and Florida cooperatives, sons who it available station electric through to to their persons expansion the to scribing cooperatives] central the above central Power tric plaintiff sons enable receiving their member-consumers electric through $ “It “In addition supply ^[*] supply preceding paragraph which have proceeds] service in rural are in rural areas who are pursuant ^[*] them Co. v. Alabama station facilities dollar station also service, supplied complains, electric electric member-consumers AEC to energy central station service objectives.” (Ala.Cir.Ct., electric to furnish electric to those of their rural developed to continue to (1) on undisputed areas not energy to the use of the to be used were is not cooperatives expenditure needs of certain electric service to 7 service, been application.” Alabama furnish [to facilities electric facilities were power areas AEC, intended be constructed electric distribution U.S.C. designed Elec. made, receiving July RE * * * concerning who, being supplied electric were energy to enable facilities were needs of to financed financed furnish Act; or described Co-op., will achieve who, being first to be this multi- first consumers energy serve receiving 1963). supplied facilities plan or have Federal through central already et deliver energy to en- which them time time with used Inc., elec- per- per- [de- seq. (2) by by in to loans made Act, means of Members Members purposes persons ice to will arise in the All of electric facilities facilities member sumers dent tems and the extension of trator called ‘Members’.” tives referred to savings basis to new retail AEC and from; ther the achievement policies cause would most effective use of providing all their extension of service on consistent with sound assisting spects : struction and most effective systems, systems “(b) Elsewhere “(a) “(c) providing generating ^[*] aas management their By helping The states he the The loan served to AEC and the in rural the loan will enable them fur- thereof existing them through in service mecessary extending by REA, pursuant ^[*] loan will electric supply consumers are in their use of in effectuate his acquisition RE developed through service areas which the hereinafter REA Act acquired by areas, member-consumers with the approved rendering above are members the Members make the of their will continued affidavit ^[*] ability distribution electric loads service to unserved result [sic] and their REA-financed their REA-financed economy at the lowest cost needs help protect an area and transmission and it members. Members, approximately service enterprises; in to make the of said ^[*] electric serv- purposes the Adminis-' in these proceeds Alabama policies of the con- service collectively AEC to the RE incidental a means loan coopera- coverage there- ^[*] or a pru- con- thus sys- cost be- re- by to of by pert “policy quoted testimony statement reasons” and numerous exhibits. majority is case taken. In the before us the district court findings.28 record From this Possibly an the affidavit is effort impossible it is to determine with assert construction facts within the degree proposed of assurance that by “central station reached service” Congressional are loans within au- case, City district court in Kansas granted thority by impos- is City Light Mc- Kansas Power & Co. v. sible tell whether the Administrator Kay, F.Supp. (D.Ct.D.C.1953), correctly has acted in with the accord agreements that loan were within the § gone purpose, or be- providing requirement for a when yond periphery, his outer is in- origi- (to cooperative loan successive nally termediate zone in he has made an REA) by financed to meet increas- though administrative decision which ing power requirements of members beyond erroneous is not outer lim- his presently being supply the served and to its.29 demand for service new consumers surrounding factual issues an- areas denied such serv- drawn are not by except ice swered for the REA. case law that Admin- assistance of when the acting difficulty periphery istrator within the that some the Admin- authority policy of his istrator’s of fact contro- the national statements are by complaint by ju- aid prevents to rural verted electrification affidavits filed dicial review of his district court Power action. Company, setting that consumers out Disposition of the case without hear- some of the member said ing findings impos- of fact makes by Clapp supplied elec- have been pertinent inquiry. sible another energy through tric for the first time quality character and done acts electric facilities financed impact the Administrator and their past, fact been had and are at restraints on trade and present, supplied with central station relating relevant several issues— Company. A Pow- service —whether ,-“As says: er mat- affidavit Congressional exempt intent to acts spe- fact, major portion pro- ter general of this character and of this posed expanded project of Elec- Alabama nature, weight given cific Cooperative tric is to furnish electric balancing to the acts done in the rural persons been, service to who have were policies. electrification and antitrust approved time and the the loan was Valid determinations reached cannot be being supplied are now central-station in this case data without factual that generated electric in central sta- definitively presents just it is that what Company and tions Alabama Power private the Administrator and the citi- Company.” Gulf Power required, agreed upon zens have City done, impact Kansas district court in and the the rele- thereof on findings trial, ex- after a three-week vant market. The re- issues cannot be member-consumers, 81,000 others The Power contends that one areas, requiring who with- in tbeir service be reasons for the exclu- service, dealing central station condi- out sive contracts arises from the pro- will available the full fact that tions which make central station service being violated, e., the mem- benefits of electric service for visions are i. that adopted by service areas ber-consumers are the means competi- the Members.” to eliminate the tion which will ensue between the dis- body only court, circuit 28. The state tributing and the existent yet finding on the to make a issue suppliers. issues, Like other factual this (other than central station service cannot be resolved motion to dismiss. court) finding this was one-sentence grounds. but on other reversed supra accompanying text. mote complain competition” that nor on the basis in a “mere solved vacuum they competi- undisputed, are Central facts Louisiana or the lawful are City tion of but of un- TVA and Kansas not. dealing competition, lawful exclusive Standing IV. na- contracts and There is no coercion. theory Com- the Power antitrust On its policy monopoly, or un- tional to create pany under Sections claims coercion, engage competition, lawful or Act, Clayton U.S.C.A. §§ and 16 of “Competi- competition. in the name of viola- and asserts substantive 15 and magic tion” is not a when word which Act, Clayton of3 tions of Section dispenses uttered consideration with 1 and 2 and Sections U.S.C.A. § being what as a matter fact done 1 and Act, 15 U.S.C.A. §§ the Sherman and what as a matter of law and national policy consequences. are the concluding no stand there is general equitable Ickes was a suit for major ing laws the under the antitrust relief not under the antitrust laws. The court, ity, treat this did the district as Supreme enjoin agree- Court declined to Ickes,30 line of more in the case as one grants municipal ments and electric City TVA,31 Loui Central Kansas systems ground “on the sole and detached is not reach the cases do siana.33 Those the administrator lacks constitution- They represent succes us. sue before authority them, al to make private utilities sion of efforts resulting moneys, and that the charge combining standing by establish authority municipalities clear have making government officer was take, municipalities will be used (or act loan otherwise an unauthorized destructive, competition lawful, albeit charge authority) outside his petitioner.” referred to purpose create was to or effect finding district court plaintiff, com competition for the municipali- require contracts did not being “un characterized bination then designate competition ties to eliminate or “conspiracy.” competition” lawful they pur- from must source re rebuffed, because These efforts were power. chase The Court referred numer- Congress and not the of loans is for view lawful, competition ous times to the private no courts, have utilities conspiracy and noted that there was no legally protectible freedom dictum, oft-repeated “If con- made the competition. spiracy or fraud or malice or coercion principles Those established case would were involved a different application complaint by to a presented.” utility of actions which in themselves pro- under the also not filed TVA monopolistic nature violate provisions cedural charged laws. The actions here relief, general equitable but was invalidity draw characteristics theory public power impact, from their own nature and injured property illegal was because synthesized il- from efforts a to create by private rights represented fran- legality. not Power Ickes, Administration Electrification Rural 30. U.S. 33. Alabama Co. v. 302 Co., (1938). F.2d 464, 300, Elec. 354 Louisiana L.Ed. Central S.Ct. 374 58 82 1966), reversing (5th 236 F. 859 Cir. v, TVA, 31. Tennessee Elec. Power Co. denied, (W.D.La.1964), Supp. cert. 271 118, 366, L.Ed. 543 306 U.S. 59 S.Ct. 83 34, L.Ed.2d U.S. 17 385 (1939). (1966). 54 Light City Coun- 34. In Duke Power v. Greenwood Co. 32. Kansas Power & Co. ty, McKay, (D.C.Cir.1955), L.Ed. S.Ct. 82 re 58 F.2d 225 924 day, (1938), versing F.Supp. (D.D.C.1953), the same decided 402 381 115 by competition proposed denied, held had been cert. S.Ct. 76 lawful, and there court to be the district 100 conspiracy. finding of was no Supreme pointed standing chises. out involve Sections possession Clayton not that of the franchises did Act. In the district court illegal competition Judge plaintiff conferred render Dawkins held had made property right prima illegal no or competi- contractual out a case facie spe- competition. granted had free of There been tion and coercion and tem- by findings injunction. porary that appeal cific the district On this court Authority Valley reversed, holding not had the Tennessee there not was conspired made anything or The Court coerced.35 raised more “mere eco- than gov- unlawful possible by clear the distinction nomic between made by cooperation conspiracy and lawful ernmental action.” reinforced leading government by to lawful officials conclusion the further statement competition.36 [appellees] only standing “their for this illegally the loan was made and [that City inapplicable two Kansas is illegal consequences] cause would First, no of action was reasons. cause territory having opposition natural (see asserted under invaded has been de which heretofore 936). de- 225 F.2d at suit was they facto their sole domain in which but claratory judgment Rural based right.” no at exclusive F.2d Con- Act37 and the Flood Electrification 865. a 1944,38 of which trol Act neither Central Louisiana dealt with invasion designed protect provision utility’s territory a competition.39 Second, nature competitor.” “mere We deal in this case charged quality the acts were private utility a with ouster of from matter of law there was that as a monop- market u borrower under lakes, City, “conspiracy.” Kansas had olistic deal- contract. Whether exclusive dealings spectrum of teaches contracts alone violated government private citizens and between laws, part whether “conspiracy” officials is dealings they overall violated official exceeds fact alone authority. thereby case was his neither laws and caused carried within itself action which dealings violation, to be were overall monopoly.40 or seeds of restraint matters not decided Central Louisiana. 35-year require- There are references Central Louisiana a suit for tem- (see 863) at ment contracts 354 F.2d but injunction porary prevent consummating (al- executed loan. It did not no such had been sign, cooperation to “The the Au or commit an unlaw 35. District Court finds thority coercion, indulged in ful or law act to commit acts otherwise has duress, fraud, misrepresentation or intent a statute.” ful with the violate 146-147, procuring municipalities, at contracts with 306 U.S. at pow purchasers other L.Ed. at or 554. er; not acted with malicious seq. 37. 7 U.S.C.A. et § 901 motive; and has or malevolent not con seq.; 38. spired municipalities pur 33 U.S.O.A. 701-1 et U.S. seq. power. justifies C.A. et 825s chasers of The record findings.” these at discussion of Hardin v. Ken L.Ed. at tucky Utilities (1968), infra. 19 L.Ed.2d 787 “Cooperation officials, federal two acting whereby point Judge Washing one under a funds 40. This is statute provided municipal City ton in erection of Kansas to make in his seeks plants, point reference and the other under statute to lakes. is the same production electricity authorizing by Judge the of Coleman in Central Lou isiana, plus plants, competition competition and its sale to such lawful ex spell appellants, statutory authority with not cess of not the does con- do consti spiracy injure “conspiracy” the the their business. tute kind of the to As Court held, cooperation court had mind Ickes. 354 F.2d at below concert, plan, not unlawful or de- involve ckes, I distinguished TVA laws, recognized the court Administra- though the it was City: Kansas them) neither require would tor cooperatives distributor nor the by pri- All of them involve efforts parties to the suit.41 were get from vate utilities to court relief competition publicly or the of owned Administration Electrification Rural supported power facilities which were Co., F.2d Northern States creatures of the standing Federal Government’s 1967), (8th considers Cir. entry power The into the business. Procedure under the Administrative right ground to sue and the asserted It does itself. REA Act under the for relief in each case were bottomed issue. reach not upon broad of unconstitutional- claims brings chapter. This us to latest ity program, power il- federal TVA, Kentucky F. Utilities Co. v. legality whereby in the com- means (6th 1966), sub 2d 403 Cir. rev’d nom. petitors private had or utilities Kentucky grounds, on other Hardin up obtain to the funds set would 651, 19 Utilities operations charges illegal- power (1968), private L.Ed.2d ity plain- establishment company sought injunction restrain competitors. plaintiffs tiffs’ Such TVA, (an ing electric co its distributor standing to were held to be without mayors operative), cities con analogy Their immedi- sue. is surface charged cerned, a con who were ately dissipated by the fact spiracy cooperative would which the plaintiff’s them suit none of power supply take over the of electric planted on a enacted federal statute in violation of 16 U.S.C.A. cities specifically protection 4(a) forbidding mak from TVA plaintiff. plaintiff utili- involved The n — franchises, ing supply outside ties did not exclusive new contracts have is and the cases hold that where area it or its for which distributors right no common constitutional or law primary on source of were the competition to be free of and where July 1, court found district hurting competition is valid company against private power on competition, will not re- the courts standing held had but it merits strain it of some antecedent because . (E.D.Tenn. F.Supp. to sue illegality in its or ob- creation in its 1964). Appeals af The Court taining of funds. standing sue, pointing out firmed on Supreme affirmed stand- a decree did not ask court sue, distinguishing com- “lawful protecting from all but it petition” (including TVA), cases statute, which from violation of “competitive injury provided protect established * * * had been enacted standing simply basis for be- into TVA from intrusion utilities cause the re- and constitutional already were areas where such utilities quirements sought plaintiff significance mat way Of enforce established. were in no concerned with protecting against injury,” competitive to sue under ter of engage privilege. came to restricted busi- close as the 41. About as competition.” ness free considering the state- the contracts dealing If this means that con- exclusive 864): (354 F.2d at ment only violate the tracts anti-trust if appellees are now have been and “The abrogate they existing contracts between doing estab- business parties others, one thereto and REA Act. under the lished and financed wrong quicker it is then correct- or at- no intention shows The record ed better. abrogate existing tempt utility not be foreclosed Appellees parties. market, do may between in- Constitutionally guaranteed, un- volve breach an existent contract. just contrasting “the rural and is not another cases in which citizens from the utility. provision invoked particular But that characterization given pro- legislative an purpose to whether it is not answer to does reflect injured implied competitive interest, free anti- to deal tect require standing policy. com- competitor national trust law and antitrust has provision.” pliance with that standing “is thus company it had because designed to 15d is class which § City protect.” Kansas was characterized competitor injured holding that an as statutory require- cannot sue enforce competitors designed protect ments not but laws case not the

[in Act REA Flood Control Act 1944], HEISLER, Appellant, Edward ques- beyond seems me rational de- laws were tion America, UNITED STATES of among competitors signed Appellee. include protected. much conceded As those No. 22292. latest brief: Appeals States stress, however, that, We Ninth if Alabama Circuit. bring suit, April 26, Power Co. could it solely would be because of absence Rehearing Denied June legally cognizable injury of a not because it was the Alabama Power contrary short, appellant’s

Co.

implication, suggested we have never principles governing its stand- to sue are different than those applicable parties. to other Specifically, Clayton pro- 16 of the party

vides for the injunctive against to sue for relief damage by

threatened loss violation

of the antitrust Insofar as are con-

cerned, pause this court on the need not

inquiry parties do —over mighty battle in their attack briefs —of require- loan vs. attack on the contracts as the loan.

ment an incident of standing The Power to at- alone,

tack wheth- the contracts

er or the Administrator is a formal

party thereto, and to broader attack the range of activities of which part parties de-

are a and in charged participants. fendant are agree my I REA is brothers Congress

an instrument chosen

bring power to our abundant and cost low

Case Details

Case Name: Alabama Power Company v. Alabama Electric Cooperative, Inc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 2, 1968

Citation: 394 F.2d 672

Docket Number: 23016_1

Court Abbreviation: 5th Cir.