McGuinn v. City of High Point
| Decision Date | 31 January 1941 |
| Docket Number | 675. |
| Citation | 13 S.E.2d 48,219 N.C. 56 |
| Parties | McGUINN et al. v. CITY OF HIGH POINT et al. |
| Court | North Carolina Supreme Court |
The chronology of this case since the former appeal follows:
I. At the May Term, 1940, Guilford Superior Court, judgment of modification and affirmance, dated May 23, was duly entered in conformity to the opinion of the Supreme Court rendered on April 17 and reported in 217 N.C. 449, 8 S.E.2d 462, 128 A.L.R. 608.
II. On May 27, petition to rehear the case was filed in the Supreme Court and denied June 12.
III. Thereafter, on July 15, 1940, the Board of Power Commissioners of the City of High Point adopted two resolutions:
1. The first being entitled, "A Resolution Repealing a Resolution Adopted by the Council of the City of High Point on March 20, 1939, Entitled 'A Resolution Accepting License for the High Point Hydroelectric Project Issued Pursuant to Order of the Federal Power Commission on March 10, 1939."'
The purpose of this resolution is to free the City from its agreement to abide by the conditions imposed in the license issued by the Federal Power Commission for the construction operation and maintenance of the project. Pursuant thereto the Federal Power Commission was requested to vacate its order of March 10, 1939, authorizing the issuance of the license, and, also, that the City be permitted to withdraw its original application therefor. Accordingly, on October 25, 1940, the Federal Power Commission adopted a resolution vacating its order of March 10, 1939.
2. The second being entitled, "A Resolution to Amend and Reenact a Resolution Adopted by the City Council of the City of High Point March 20, 1939, Entitled 'A Resolution to Amend a Resolution Adopted April 27, 1938,' Entitled 'A Resolution Authorizing the Construction of Hydroelectric Plant and System by the City of High Point for the Use of the City and Consumers in the City, and Authorizing the Issuance of Revenue Bonds to Finance a Part of the Cost."'
The end sought to be accomplished by this resolution is to relieve the City from the effects of the amendatory resolution of March 20, 1939, placing the project under the provisions of the Revenue Bond Act of 1938, Chap. 2, Public Laws, Extra Session, 1938, and to declare its intention of proceeding under the original resolution of April 27, 1938, as amended and re-enacted by the resolution of July 15, 1940, thus predicating the issuance of the proposed revenue bonds on authority of the City Charter and the Revenue Bond Act of 1935, Chap. 473, Public Laws 1935, and seeking to obviate the need of a certificate of convenience and necessity required by the Revenue Bond Act of 1938.
IV. At the August Term, 1940, Guilford Superior Court, with the foregoing resolutions as bases for their motion, the City of High Point and its officers, parties defendant herein applied to the court for a modification of the judgment and restraining order previously entered in the cause.
This application was allowed, and from the judgment entered thereon the Adams-Millis Corporation et al., plaintiffs by intervention, and the Duke Power Company, intervening plaintiff, entered exceptions and gave notice of appeal.
At the same time, the court dismissed the rule for contempt--previously issued on affidavit of J. W. McGuinn, plaintiff--and based its ruling on the findings incorporated in the judgment of modification. Similar entries, as above, were noted, and appeals taken from this ruling.
Carter Dalton and John A. Myers, both of High Point, for appellants Adams-Millis Corporation and others.
R. M. Robinson, of Greensboro, H. S. Haworth, of High Point, and Wm. B. McGuire, Jr., and W. S. O'B. Robinson, Jr., both of Charlotte, for appellant Duke Power Co.
Grover H. Jones, of High Point, and Roy L. Deal, of Winston-Salem, for appellees City of High Point and others.
This proceeding is supplemental and summary in character. By motion after judgment the defendants have applied for vacation or modification of the decree entered in the Superior Court of Guilford County at the April Term, 1939, enjoining the defendants from proceeding with the construction of a hydroelectric power plant and system at Styer's dam site on the Yadkin River, in Yadkin County, about 25 miles from the City of High Point. On appeal to this court, the order of the Superior Court was modified and affirmed. Judgment on the certificate was duly entered at the May Term, 1940, Guilford Superior Court. The present motion was made at the August term, following.
Due to the unusuality of the questions presented, the matter was thoroughly pounded and hammered at the bar. In addition, the parties have filed elaborate briefs. The restraining order heretofore entered in the cause is sought to be relaxed or obviated on account of certain changes or modifications made in the enterprise.
First. At the threshold of the hearing, the court was met with a challenge of its power to modify the judgment previously entered in the cause.
If we concede, for the moment, the authority of the Board of Power Commissioners to adopt the resolutions of July 15, 1940, it would seem that the court was justified in undertaking to modify the restraining order, in one particular at least, for these resolutions were intended to effect substantial changes in the enterprise. The changes sought to be accomplished were, not only from fact to fact--from interstate to intrastate commerce, but also from law to law--from federal to state authority and from one state statute to another. Capps v. Atlantic R. R., 183 N.C. 181, 111 S.E. 533. If valid, the undertaking was thus converted from one under the jurisdiction of the Federal Power Commission to one under the exclusive control of local authorities.
The parties are in sharp disagreement in respect of the authority of the Board of Power Commissioners to adopt the resolutions of July 15, 1940. In the court below the case was made to turn on the existence of this power. The appellants insisted then, and insist now, that no such power is vested in the Board, and that without it, the resolutions are unavailing. It will be noted that the two resolutions are not alike either in kind or purpose.
We are not disposed to question the authority of the Board in so far as the first resolution is concerned. Its only purpose is to rescind the prior acts of the City Council in applying for, accepting and agreeing to abide by the conditions imposed in the license issued by the Federal Power Commission for the construction, operation and maintenance of the contemplated project. As these acts were ultra vires in the first instance, it ought not to take any great amount of power to disavow them. Having authority to act in the premises, it would seem that the first resolution was within the Board's determination. Nor is the debate as to the ultimate effect of this resolution particularly germane in view of the previous holding that the City is without authority to accept the federal license and to agree to abide by all the conditions imposed therein. Sufficient unto the future are the problems thereof. The resolution is one of compliance and not one of circumvention.
The second resolution, however, presents a matter of different substance.
The character of the project was fixed by resolution of the Council of the City of High Point on April 27, 1938, as amended by the supplemental resolution of March 20, 1939, which amendatory resolution brought it within the terms of the Revenue Bond Act of 1938, necessitating a certificate of convenience and necessity from the Public Utilities Commissioner.
Thereafter, on April 4, 1939, the Board of Power Commissioners of the City of High Point was created by Act of Assembly, Chap. 600, Public Local Laws 1939, and vested with full municipal authority over the project then established. The act provides that from and after May 1, 1939, the City Council "shall no longer exercise the powers or authority theretofore vested in them with respect to the said electric light, heat and power plant and system"; and that "all of the powers and duties of the City of High Point, *** with respect to the *** electric light, heat and power plant and system of said city pursuant to the resolution adopted by the Council of the City of High Point on April twenty-seventh, one thousand nine hundred and thirty-eight, and amendments thereto, shall be vested in and exercised by the Board of Power Commissioners". Section 2.
It will be observed that at the time of the creation of the Board of Power Commissioners the municipality was proceeding under the Revenue Bond Act of 1938. This required a certificate of convenience and necessity from the Public Utilities Commissioner for the project in question. The purpose of the second resolution adopted by the Board of Power Commissioners on July 15, 1940, is to take the project from under the provisions of this act and to free it from any and all supervision on the part of the Public Utilities Commissioner. This would seem to be at variance with the grant of power which the General Assembly vested in the Board of Power Commissioners of the City of High Point. At the time of the grant, certificate from the Public Utilities Commissioner was required and the grant is with specific reference to this requirement. The project entrusted to the Board of Power Commissioners was the one established "pursuant to the resolution" adopted by the Council of the City of High Point on April 27, 1938, "and amendments thereto". Can the Board, by later resolution thus free itself from the supervision imposed by one of these valid amendments? The supervision attached prior to the creation of the Board and subsisted at the time of its creation. It is not thought...
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