The Wilmington morning star., 1941-02-01
HIGH POINT POWER
PROJECT FACING
ANOTHER BARRIER
Continued from Page One)

Today's decision placed another
legal barrier in High Points path.
The court also dismissed an ap-
peal in a similar Yadkin county
case as premature" pending fl
nal settlement of the Guilford coun-
ty litigation. In the Yadkin case,
the superior court had voided an
injunction when High Point and
Yadkin county had eliminated
differences growing out of the pro-
posed project.
'"To say that the defendants may
avail themselves of the benefits of
the several enactments and at the
same time repudiate their lirnita-
tions and conditions" Chief JUS
tice w. P. Stacy wrote in the
opinion on the Guilford case, "or
to hold that the court is without
jurisdiction in the premises, would
be to announce a doctrine at once
novel and confused.
Much of what is said :.
seems to proceed upon the
assumption" he said, that the
board of power commissioners (of
High PoinD can pull itself up by
its own boot straps into a field of
activity broader than
the one established by the act of
its reaction--a promise not here
tofore regarded as sound"
Associate Justices Heriot Clark
son and A. A. F. Seawell dissented
and Clarkson concurred and dis
sented in part.
Clarkson wrote that the acts I'm.
der which High Point was pro-
ceeding did not require a con-
venience and necessity certificate;
even if it were required, he said,
the utilities commissioner could
quickly grant the license so that
this project may go forward-giv-
ing employment to thousands of
workers and providing perhaps
cheaper electricity for all of the
people and going concerns of High
Point. This seems to be the object
and the general assembly has
granted the authority"
Seawell pointed out it had been
the policy of the state to give
municipalities the right to create
and conduct power plants IF they
choose to do so, rather than be
upon private enterprise
for such current
THE mere existence Of such
power, and it's exercise where oc-
casion warrants" he said, has
proven the best protection against
exorbitant rates and inadequate
service the appellants have
shown no sufficient reason why
the court should acquire callouses
in its hands by dragging at the
skirts of progress.
Delays in the construction of the
project, he said. Must have been
costly and may be fatal"
Barnhill's concurring opinion
pointed out that the court had al
ready decided that the power pro-
ject came under the revenue bond
act of 1898.
defendants do not now chal-
lenge that decision," he wrote.
They simply move for a modifica-
ito nof the former judgment upon
the theory that there are changed
conditions which relieve them from
some of the burdens of that act.
1T seems apparent to me that
the legislature, in creating the
board of power commissioners of
High Point, clearly limited the
powers of this board L fully
concur in the majority opinion
which so clearly and succinctly
points out wherein the defendants
have failed to show any changed
conditions which would warrant
any modification of the former
judgment
Stacy wrote that the, present
question was whether the city was
entitled to relief from the pre-
viously-granted injunction. 1--WE
are not at liberty to reverse the
former decision," he said, "even
if regarded as erroneous, which it
is not. Nor are we permitted to
decide the case as legislators sub
stltuting our own notions of policy
for those of the general assembly
as expressed in the statutes" S