BLACK, J., concurring. 381 U.S. extinguish any dower right existing under Florida law, Vanderbilt v. Vanderbilt, 354 U. S. 416, 418, the answer is that the Florida decree extinguished petitioner's dower rights." Ante, p. 85. The Court goes on to state and accept the Florida law that an ex parte divorce extinguishes dower rights. I do not see how a withdrawal from the due process phase of Vanderbilt could be clearer. Because New York was petitioner's State of domicile at all times relevant to this case and did not purport to invest her with any rights to property beyond those she received from her husband, the second rule is not involved here. My hope is that its time will come too. I continue to believe that the views expressed in my Vanderbilt dissent embody a more satisfactory and workable approach to the law of "divisible divorce" (Estin v. Estin, 334 U. S. 541) than can be distilled from existing Court opinions. MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring. I agree completely with the Court's judgment and opinion, and add these few words only in reply to the suggestion of my Brother HARLAN that the Court here is making "a partial retreat from Vanderbilt v. Vanderbilt, 354 U. S. 416." I do not think that today's decision marks any "retreat" at all from the opinion or holding in Vanderbilt, and I do not understand the Court so to regard it. Vanderbilt held that a wife's right to support could not be cut off by an ex parte divorce. In the case before us, Mrs. Simons' Florida dower was not terminated by the ex parte divorce. It simply never came into existence. No one disputes that the ex parte divorce was effective to end the marriage, so that after it Mrs. Simons was no longer Mr. Simons' wife. Florida law, as the Court's opinion shows, grants dower only to a woman who 81 STEWART and GOLDBERG, JJ., dissenting. is the legal wife of the husband when he dies. Mrs. Simons therefore had no property rights cut off by the divorce. She simply had her marriage ended by it, and for that reason was not a "widow" within the meaning of the Florida law. Unless this Court were to make the novel declaration that Florida cannot limit dower rights to widows, I see no possible way in which the Vanderbilt case, which dealt with rights which a State did give to divorced wives, could be thought to apply. MR. JUSTICE STEWART and MR. JUSTICE GOLDBERG, dissenting. We would dismiss the writ of certiorari in this case as improvidently granted, believing that, as the Court's opinion clearly demonstrates, no federal question is presented. There exists no question under the Full Faith and Credit Clause, because Sol Simons, even after his Florida divorce, "complied with the full measure of the New York decree," ante, at 84. No other federal question is even remotely suggested in the present posture of this case. Petitioner asserted in her petition for a writ of certiorari that "[t]he Courts of Florida have denied to the widow, Lucy C. Simons, her constitutional property rights to which she was entitled... by the mere subterfuge of an ex parte divorce case in the Courts of Florida, where the Florida Court did not have jurisdiction because of the lack of proper residence." We were advised at oral argument by petitioner's counsel, however, that petitioner no longer challenged the judgment below insofar as it embodied a holding that the 1952 Florida divorce decree was valid and terminated. the marital status of the parties. The only possible questions which remain in this case, therefore, are questions of state law which are of no proper concern to this Court. 381 U.S. Syllabus. FEDERAL POWER COMMISSION v. UNION ELECTRIC CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. No. 123. Argued March 2, 1965.- Respondent filed a declaration of intention with the Federal Power Commission (FPC) pursuant to § 23 (b) of the Federal Power Act to construct a pumped storage plant on a nonnavigable tributary of a navigable stream. A pumped storage plant uses power during periods of nonpeak demands to pump water to an upper pool to be used to generate peak-period energy by water falling into a lower pool. The FPC found that the nonnavigable tributary is a stream over which Congress has jurisdiction as it is a headwater of a navigable river system. The FPC held that the project would require a license under § 23 (b) because it would use water power for the interstate transmission of electricity and because it would affect downstream navigability. The Court of Appeals reversed, finding that the only relevant "commerce" under § 23 (b) is that on the downstream navigable waterway and that the project would have no significant impact on water commerce. Held: 1. The commerce power of Congress clearly encompasses the interstate transmission of electric energy, and the project here is within the purview of that power, without regard to federal control of tributary streams and navigation. P. 94. 2. The language of the licensing requirement of § 23 (b) invokes the full congressional authority over commerce and not merely the regulation of navigation or water commerce. Pp. 95-98. 3. The purposes of the predecessor statute, the Federal Water Power Act, which included the comprehensive development of water power and hydroelectric energy, are more fully served by considering the impact of the project on the full range of commerce interests. Pp. 98-109. 4. Since the original Federal Water Power Act was concerned with the utilization of water resources and particularly the power potential in water, there is no anomaly in the FPC's position that steam plants generating energy for interstate transmission are not within the scope of § 23 (b), although located on a stream over 90 Opinion of the Court. which Congress has jurisdiction, while similar hydroelectric facilities are covered by § 23 (b). Pp. 109-110. 326 F. 2d 535, reversed. Ralph S. Spritzer argued the cause for petitioner. With him on the brief were Solicitor General Cox, Frank Goodman, Richard A. Solomon and Howard E. Wahrenbrock. Robert J. Keefe argued the cause for respondent. With him on the brief was Robert F. Schlafly. MR. JUSTICE WHITE delivered the opinion of the Court. 1 Section 23 (b) of the Federal Power Act 2 requires any person desiring to construct a dam or other project on a nonnavigable stream, but one over which Congress has jurisdiction under its authority to regulate commerce, to file a declaration of intention with the Federal Power Commission. If the Commission finds that "the interests of interstate or foreign commerce would be affected by such proposed construction," the declarant may not construct or operate the project without a license. The issue here is whether the construction of a pumped storage hydroelectric project generating energy for interstate transmission is one which would affect the "interests of interstate or foreign commerce" within the intendment of the Act. 1 49 Stat. 838, 846, 16 U. S. C. § 817 (1958 ed.). The Federal Power Act was originally enacted in 1920 as the Federal Water Power Act, 41 Stat. 1063. The original Act was amended by Title II of the Public Utility Act of 1935, 49 Stat. 838, 16 U. S. C. §§ 791-823 (1958 ed.), and made Part I of the Federal Power Act. Parts II and III, dealing with regulation of electric utility companies, were added. To distinguish the original Federal Water Power Act, which was kept largely intact, from Parts II and III, Part I will be referred to in this opinion under its original Opinion of the Court. I. 381 U.S. Respondent Union Electric Co. (Union), operating generating plants and an interconnected transmission and distribution system in Missouri, Illinois, and Iowa, filed a declaration of intention pursuant to § 23 (b) to construct a pumped storage hydroelectric facility, the Taum Sauk installation, as a part of Union's interstate system. The pumped storage plant, an engineering innovation of growing use, is to supplement the energy produced by other plants during periods of peak demands. During such periods it generates energy through use of hydroelectric units driven by water falling from an elevated reservoir into a lower pool. During off-peak periods it uses energy from other sources to pump water from the lower pool back to the headwater pool.* The project is capable A pumped storage facility may be likened to a large storage battery, taking electric energy from other sources, usually steam-electric plants, during some hours of the day, and supplying energy to an integrated system during other hours. The water in the upper pool may thus be regarded as the equivalent of stored electric energy. Pumped storage installations fall into two categories, those in which pumped storage facilities are added to a conventional hydro installation, and those which are exclusively pumped storage, generating power solely by circulating water between a lower and higher reservoir. Within these categories pumped storage installations vary widely in design and mode of operation. F. P. C., 1964 National Power Survey, Part I, 120-124. Existing combined pumped storage hydroelectric projects include Rocky River, Conn. (1929); Buchanan, Tex. (1950); Flatiron, Colo. (1954); Hiwassee, N. C. (1956); and Lewiston, N. Y. (1961). The pure pumped storage 'installations are of more recent vintage, with the following projects planned or recently constructed: Yards Creek, N. J.; Cabin Creek, Colo.; Muddy Run, Pa.; Ludington, Mich.; Cornwall, N. Y.; and the Taum Sauk project. See id., at 122-123. 4 At Taum Sauk the upper reservoir is a 32-acre pool constructed atop a mountain, at about 1,500 feet above sea level, and the lower reservoir, impounded by a 60-foot dam, covers about 370 acres and has a usable storage capacity of 4,350 acre-feet of water. The two |