concurring in part and dissenting in part: The facts: By resolution first adopted on 30 November, 1936, tbe city council of tbe city of High Point authorized tbe construction and operation of a hydroelectric system. It was proposed to finance tbe costs of tbe system by grant from PWA of 45% of tbe costs and issuance of electric revenue bonds payable from tbe revenues of tbe system. Tbe project was questioned in an injunction proceeding by plaintiff, tbe Duke Power Company, wbicb has an electric distribution system in High Point. Tbe city of High Point also has its own electric distribution system, wbicb it has operated for more than thirty years. It purchases its own current for its own distribution system from tbe Duke Power Company. Previous opinions of tbe Supreme Court with regard to tbe city’s efforts to build its own electric plant may be found in Williamson v. High Point, 213 N. C., 96, and 214 N. C., 693, and McGuinn v. High Point, 217 N. C., 449, decided 17 April, 1940. In tbe first Williamson opinion tbe Court held: (1) That bonds payable solely from revenues from such a project and not from general or tax funds of tbe city are not “debts” within tbe meaning of Art. VII, sec. 7, and Art. V, sec. 4, as amended; (2) that an electric light and power plant was a necessary expense within tbe meaning of Art. VII, sec. 7, of tbe Constitution; and (3) that under tbe city charter and tbe Revenue Bond Act of 1935, tbe city was not authorized to go into tbe “power business generally.”
On tbe banding down of tbe first decision in tbe Williamson case, supra, tbe city council of tbe city of High Point changed tbe project, not as to location or very much as to physical characteristics, but as to purpose for wbicb current would be used. This was done by resolution of 27 April, 1938 (this is the resolution wbicb authorizes tbe present project and is now before the court for consideration). This resolution provides specifically that no distribution line or other distribution facilities shall be constructed outside of tbe corporate limits of tbe city of High Point.
*67Tbe statutory authority of the resolution of 27 April, 1938, was the charter of the city of High Point, particularly Article 2-a, being chapters 65 and 561 of the Public-Local Laws of 1937, and the Revenue Bond Act of 1935. N. 0. Code, 1939 (Michie), 2969 (1 to 15). When the resolution of 27 April, 1938, was adopted, the Revenue Bond Act of 13 August, 1938, had not been passed by the Legislature. The Revenue Bond Act of 1938 appears in N. C. Code, 1939 (Michie), 2969 (16 to 27).
On the adoption of the resolution of 27 April, 1938, the city of High Point and its officers were cited for contempt of court. The Superior Court held with the defendants. On appeal to the Supreme Court it was held that the lower court was correct in discharging the rule for contempt. Williamson v. High Point, 214 N. C., 693. On 20 March, 1939, the city council of the city of High Point adopted a resolution amending' the resolution of 27 April, 1938, but made no change in the provisions of the former resolution authorizing the project, except to increase somewhat the estimated cost. The resolution of 20 March, 1939, provided for bond maturities, set out the bond form, provided for payments of electric energy furnished to the city, remedies of bondholders, etc.
The city council on 20 March, 1939, accepted a license from the Federal Power Commission under the terms of the Federal Power Act.
On 30 June, 1939, Hon. H. Hoyle Sink, Judge holding the courts of the Twelfth Judicial District, issued an order restraining the city of High Point from proceeding with the project, on a large number of grounds: (1) That the project would cost more than the funds available; (2) that the bonds would constitute a general indebtedness of the city, because the city had agreed with PWA to complete it by a set date and because the city agreed to pay for current it might use from the project for its own needs; (3) that the bonds would be issued under the 1938 Revenue Bond Act, and, therefore, the city could not proceed without obtaining the certificate of convenience and necessity provided for by that act; and (4) that the Tadkin-Pee Dee River was not navigable, and that it was ultra vires for the city to accept the license from the Federal Power Company.
The Supreme Court of North Carolina, on 17 April, 1940, modified the judgment of Judge Sink and held, as follows: (1) That the cost of the project was not for the- Court to consider; (2) that the bonds did not constitute a general indebtedness of the city but were revenue bonds only within the principles of Brockenbrough v. Commissioners, 134 N. C., 1; (3) that the city was proceeding under the Revenue Bond Act of 1938, and, therefore, the certificate of convenience and necessity provided for by that act was required; and (4) that the Yadkin River in North Carolina was not navigable; that the project would have no effect on the navigable capacity of the Yadkin-Pee Dee River; that the Federal *68Power Commission not being a party to the action, tbe Court could not pass on its jurisdiction, and tbat it was ultra, vires for tbe city of Higb Point to accept tbe Federal. Power license and to agree to comply witb its terms and conditions.
In deference to tbe opinion of tbe Supreme Court and in order to remove tbe legal objections to tbe project wbicb tbe Court bad pointed out, tbe board of power commissioners of tbe city of Higb Point, on 15 July, 1940, adopted two resolutions, copies of wbicb are attached to tbe motion filed in tbe cause. Tbe first of these resolutions repealed tbe resolution of 20 March, 1939, accepting tbe Federal Power license, and provided tbat tbe city should no longer be bound by tbe terms of tbe license. Tbe second resolution struck out every provision of tbe bond resolution of 20 March, 1939, tbat could possibly be construed to be predicated on tbe Revenue Bond Act of 1938, and reenacted tbat resolution so as to make it perfectly clear tbat the city was proceeding under its original resolution of 27 April, 1938, and tbe amendatory resolution of 15 July, 1940, each of wbicb resolutions is predicated solely on tbe City charter and tbe Revenue Act of 1935.
On 17 July, 1940, tbe city of Higb Point mailed to tbe Federal Power Commission a copy of tbe resolution repealing tbe resolution accepting tbe license and under date of 18 July, 1940, tbe Federal Power Commission, through its secretary, acknowledged receipt thereof. Subsequently and on 17 October, 1940, tbe city requested tbat tbe Commission vacate its order of 10 March, 1939, authorizing tbe issuance of the license, and, also, tbat if this request be granted tbe city requested permission to withdraw its application. On 25 October, 1940, tbe Federal Power Commission adopted a resolution vacating its order of March 10, 1939 (on 25 October, 1940), which authorized the issuance of the license.
Tbe estimated cost of the project is $6,492,600, of which $2,921,600 will be a grant from the Federal Government, PWA, and tbe rest from proceeds of tbe sale of revenue bonds. Tbe plant will have a capacity of 21,000 kilowatts, and will deliver at Higb Point approximately 49,000,000 kilowatt hours per annum. Tbe consumption of electricity in tbe city of Higb Point in tbe year preceding June, 1939, was approximately 44,500,000 kilowatt hours.
Tbe court below found tbe facts and rendered judgment thereon for defendant city of Higb Point.
Tbe judgment, on motion for modification, in tbe court below, is as follows:
“This cause coming on to be beard before tbe undersigned Judge Presiding, and bolding tbe courts of tbe Twelfth Judicial District according to law, at tbe August 26th, 1940, Term of this Court, upon a motion in tbe cause by tbe defendants to modify tbe judgment entered in this *69cause on June 30th, 1939, as modified by tbe opinion and judgment of the Supreme Court, and to modify the judgment entered in this cause at the May 1940 Term of this Court pursuant to and in conformity with the opinion and judgment of the Supreme Court, and the answer and addendum to the answer of Adams-Millis Corporation et al., plaintiffs by intervention, and the Duke Power Company, intervening plaintiff to said motion of defendants, and upon the record and exhibits attached to said motion, and to the answer and addendum to answer, and resolutions of the Board of Power Commissioners of the City of High Point of July 15th, 1940, and upon the admissions of counsel for both the plaintiff and the interveners and the defendants, and from inspection of the record and the admissions of counsel, the pleadings and exhibits heretofore filed in this cause, and used by agreement of the parties herein, the Court finds the following facts:
“1. At the May, 1940, Term of the Superior Court for Guilford County a final judgment was entered in this action, which judgment permanently enjoined and restrained the defendants from constructing the proposed hydroelectric plant and system described in the pleadings filed in this action, and from any further activities, operation, development, advancement or continuation of the hydroelectric plant and system described in the pleadings filed in this action, and from any further activities, operation, development, advancement or continuation of the hydroelectric project described in said judgment.
“2. By resolution adopted April 27, 1938, a copy of which is attached to the original complaint of the plaintiff J. W. McGuinn in this action and marked ‘Exhibit A,’ the Council of the City of High Point authorized the construction, operation and maintenance of the hydroelectric plant and system therein described, the generating units of which are to be located at ‘Styers’ Ferry’ on the Yadkin Biver in Forsyth, Davie and Yadkin Counties, North Carolina, and the distribution units of which are to be located within the corporate limits of the city of High Point, and authorized the issuance of revenue bonds to aid in financing the costs thereof.
“3. On March 20th, 1939, the Council of the City of High Point adopted a resolution entitled ‘A Eesolution to Amend a Eesolution Adopted April 27, 1938, Entitled “A Eesolution Authorizing the Construction of a Hydro-electric Plant and System by the City of High Point for the Hse of the City and Consumers in the City, and authorizing the Issuance of Eevenue Bonds to Finance a Part of the Cost,” ’ a copy of which is attached to the amended complaint of the intervening plaintiff, Duke Power Company.
“4. On March 20, 1939, the Council of the City of High Point, adopted a resolution entitled ‘A Eesolution Accepting License for the *70High Point Hydro-electric Project Issued Pursuant to Order of the Federal Power Commission on March 10, 1939/ a copy of which is attached to the complaint of the intervening plaintiff, Duke Power Company, as ‘Exhibit II.’
“5. The General Assembly of North Carolina on April 4th, 1939, adopted an Act entitled ‘An Act to Amend Chapter One Hundred and Seven of the Private Laws of One .Thousand Nine Hundred and Thirty-one and All Acts Amendatory Thereof Relating to the Charter of the City of High Point/ whereby all of the powers and duties of the City of High Point with respect to the establishment, acquisition, construction, improvement and operation of an electric light, heat and power plant and system of the city, pursuant to the resolution adopted by the Council of the City of High Point on April 27, 1938, was vested in the Board of Power Commissioners created by said Act. The defendants E. L. Briggs, F. Logan Porter, J. C. Siceloff, R. B. Terry and J. N. Wright are the duly qualified and acting members of said Board of Power Commissioners.
“6. Said resolution of the Board of Power Commissioners of the City of High Point,' which repealed the resolution of the Council of the City of High Point of March 20, 1939, accepting the license of the Federal Power Commission, was adopted by the Board of Power Commissioners of the City of High Point in deference to the opinion of the Supreme Court of North Carolina of April 17, 1940, and with the purpose and intent of complying with the terms of said opinion, and with the judgment of the Superior Court for Guilford County entered pursuant to the opinion of the Supreme Court. The defendants City of High Point and the members of the Board of Power Commissioners now allege that the Yadkin-Pee Dee River in North Carolina is not navigable; that it is subject to the sole jurisdiction of the State of North Carolina; that the proposed hydroelectric plant and system will have no effect, either detrimental or beneficial, to the navigable capacity of the Pee Dee River in South Carolina, and will not affect the interests of interstate or foreign commerce. It is the intention of the City of High Point and of the Board of Power Commissioners of the City of High Point in good faith to construct, maintain and operate the proposed hydroelectric plant and system strictly in conformity with the laws of the State of North Carolina.
“On July 17th, 1940, E. M. Knox, City Manager of the City of High Point, sent to the Federal Power Commission at Washington, D. O., copies of the resolution of July 15th, 1940, repealing the acceptance of the Federal Power License, and, under date of July 18 th, 1940, the Federal Power Commission, through its Secretary, acknowledged receipt of said communication and of the enclosed resolution.
*71“1. Likewise, in deference to tbe opinion of the Supreme Court of April 17th, 1940, in this case, and after the rendition of the judgment of the Superior Court at the May 1940 Term, pursuant to the opinion of the Supreme Court, and in order to comply with the terms of said opinion and judgment, the Board of Power Commissioners of the City of High Point on July 15th, 1940, adopted a resolution entitled ‘A Eeso-lution to Amend and Beenaet a Eesolution Adopted by the City Council of the City of High Point March 20, 1939, Entitled “A Eesolution to Amend a Eesolution Adopted April 27, 1938, Entitled ‘A Eesolution Authorizing the Construction of a 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 Eevenue Bonds to Finance a Part of the Cost.’ ” ’ Said resolution eliminated from the amendatory resolution of March 20, 1939, all reference to the Eevenue Bond Act of 1938, and all provisions predicated upon or authorized by the Eevenue Bond Act of 1938. By the adoption of said resolution of July 15th, 1940, the Board of Power Commissioners of the City of High Point has declared its intention that the proposed hydroelectric project as to authorization, construction, maintenance and operation, as to the issuance of revenue bonds to aid in the financing thereof, and in all other respects, is predicated solely upon the Charter of the City of High Point as amended, and the Eevenue Bond Act of 1935. The Court’s reference to the Charter of the City of High Point is intended to include Chapter 65 of the Public-Local Laws of 1937, as amended by chapter 561 of the Public-Local Laws of 1937. It is the intention of the City of High Point and the Board of Power Commissioners, as disclosed by said amenda-tory resolution of July 15th, 1940, that said project shall be authorized, constructed, maintained and operated, and that the revenue bonds for its financing shall be issued solely under the Charter of the City of High Point as amended by said private Acts, and the Eevenue Bond Act of 1935, and without availing themselves of any of the provisions or authority of the Eevenue Bond Act of 1938. The project was originally authorized by resolution of April 27th, 1938, prior to the adoption of the Eevenue Bond Act of-1938, and the resolution of April 27th, 1938, was based upon authority contained in the Charter of the City of High Point and the Eevenue Bond Act of 1935. By the amenda-tory resolution of July 15th, 1940, the City of High Point and the Board of Power Commissioners have established the fact that it is their intention to construct, maintain, operate and finance said project under authority of the City Charter as amended, and the Eevenue Bond Act of 1935, as originally contemplated.
“8. At the time of the entry of the decree of the Superior Court as of June 30th, 1939, and the decree of the May 1940 Term, entered pursuant *72to tbe opinion of tbe Supreme Court, tbe proposed hydroelectric plant and system was to be constructed, operated and maintained under tbe license from tbe Federal Power Commission, and subject to tbe provisions of tbe Federal Power Act. By resolution of April 27th, 1938, adopted prior to tbe acceptance of tbe Federal Power License, tbe City of Higb Point bad authorized tbe construction, maintenance and operation of said project solely under tbe laws of tbe State of Nortb Carolina. By tbe adoption of tbe resolution of July 15th, 1940, repealing tbe resolution accepting tbe Federal Power License, tbe City of Higb Point and tbe Board of Power Commissioners have repudiated and disclaimed tbe Federal Power License, and it is now their intention to construct, maintain and operate tbe project solely under tbe jurisdiction of the State of North Carolina.
“9. At tbe time of tbe entry of tbe judgment of June 30th, 1939, and of tbe judgment of tbe May 1940 Term, pursuant to tbe opinion of tbe Supreme Court, tbe City of Higb Point and tbe Board of Power Commissioners were proceeding under tbe Revenue Bond Act of 1938 in-certain respects. Tbe project was first authorized under tbe Charter of tbe City of Higb Point as amended, and the Revenue Bond Act of 1935, by resolution adopted April 27th, 1938, prior to tbe enactment of the Revenue Bond Act of August 13th, 1938. The provisions of the Revenue Bond Act of 1938 were resorted to only by certain provisions of tbe resolution of March 20th, 1939; all of said provisions have been repealed by the amendatory resolution of July 15th, 1940, above referred to. It is now the intention of tbe City of Higb Point and tbe Board of Power Commissioners that the project shall be constructed, maintained, operated and financed solely under tbe authority of tbe Charter of tbe City of High Point as amended, and the Revenue Bond Act of 1935.
“10. Since tbe entry of the decree at the May 1940 Term of this Court, as above set forth, substantial and fundamental changes in the facts and in the resolutions and proceedings of tbe City of Higb Point have occurred, which authorize and control the acquisition, construction, maintenance, operation and financing of the proposed hydroelectric plant and system.
“Tbe Court, therefore, concludes as a matter of law:
“1. That tbe City of Higb Point has authorized construction, operation and maintenance of tbe proposed hydroelectric plant and system under its Charter as amended, and under tbe Revenue Bond Act of 1935, the bonds authorized to be issued for tbe purpose of financing a part of tbe costs of construction of said project to be issued under tbe authority of the Charter of tbe City of Higb Point as amended, and the Revenue Bond Act of 1935.
*73“2. Tbe Court further finds as a conclusion of law that tbe City of High Point is no longer proceeding in any of these respects under the Eevenue Bond Act of 1938, but has so amended and modified its proceedings as again to predicate them upon the Charter of the City of High Point as amended, and the Eevenue Bond Act of 1935, which was the authority for the resolution of April 27th, 1938, and which resolution originally authorized the construction of the project and the issuance of the necessary revenue bonds.
“3. The Court further finds as a conclusion of law that the proposed bonds will not constitute a general indebtedness of the City of High Point, hut will he special revenue bonds, payable solely out of the revenues of the proposed project, and are within the provisions approved by the Supreme Court of North Carolina in Brockenbrough v. Board of Water Commissioners of Charlotte, 134 N. C., page 1.
“4. The Court further finds as a conclusion of law that the provisions and covenants contained in the loan and grant agreement between the City of High Point and the Federal Government as of February 13th, 1939 (see record), as amended by the resolution of the Board of Power Commissioners of the City of High Point adopted November 7th, 1939, will not create a general indebtedness of the city, and said provisions and covenant likewise do not exceed the provisions approved in the decision of the Supreme Court of North Carolina in Brockenbrough v. Board of Water Commissioners of Charlotte, 134 N. C., page 1.
“5. The Court further finds as a conclusion of law that all the provisions and covenants of the bonds and of the resolutions of April 27th, 1938, as now amended, and all of the provisions and covenants of the loan and grant agreement of February 13th, 1939, as amended by the resolution of the Board of Power Commissioners of the City of High Point as of November 7th, 1939, are fully authorized by the Charter of the City of High Point as amended, and the Eevenue Bond Act of 1935.
“6. The Court further adopts and finds as a conclusion of law that since the City of High Point is not proceeding under the Eevenue Bond Act of 1938, but is proceeding under authority of its charter as amended, and the Eevenue Bond Act of 1935, it may lawfully construct, operate and maintain said plant and system without a certificate of convenience and necessity from the Public Utilities Commissioner of North Carolina, and none of the limitations of the Eevenue Bond Act of 1938 are applicable either to the construction or financing of the proposed project.
“7. The Court further adopts and finds as a conclusion of law that the acceptance of the Federal Power License by the City of High Point was ultra vires, and was so held by the Supreme Court of the State of North Carolina, and that such acceptance was not binding on the City of High Point, and that the resolution of July 15th, 1940, of the Board of Power *74Commissioners of tbe City of High Point constitutes a rejection and disclaimer of tbe Federal Power License, and tbe Federal Power License no longer constitutes a part of tbe proposed project.
“8. Tbe Court further adopts and finds as a conclusion of law that there have been substantial and controlling changes in tbe facts since tbe entry of tbe judgment at tbe May Term, 1940, of this Court, and since tbe opinion and judgment of tbe Supreme Court, which would render tbe enforcement of said decree with respect to tbe proposed hydroelectric plant and system as now designed and planned, as to construction, operation, maintenance and financing, as shown by said amended resolutions of tbe City of High Point, both unjust and inequitable, and tbe Court should, therefore, modify said decree so as no longer to restrain tbe defendants from proceeding with tbe construction, maintenance and operation of said plant and system, or tbe issuance and sale of its proposed electric revenue bonds.
“It is, therefore, considered, ordered, adjudged and decreed by tbe Court:
“That tbe decree entered at tbe May 1940 Term of Superior Court of Guilford County, pursuant to and in conformity with tbe opinion and judgment of tbe Supreme Court, as well as judgment of June 30th, 1939, shall not be deemed to restrain or prohibit and no longer shall restrain or prohibit tbe defendants (including tbe City of High Point) from proceeding with tbe acquisition, ownership, construction, operation, maintenance and financing of tbe proposed hydroelectric plant and system, or tbe issuance of tbe proposed revenue bonds to aid in financing tbe costs thereof, or from doing other acts reasonably necessary to carry out said purposes, within tbe limitations set forth below.
“It is further adjudged that this judgment is not intended to authorize, and shall not be construed to authorize, tbe City of High Point, its officers, agents or employees to acquire, construct, maintain or operate tbe proposed hydroelectric plant and system subject to tbe terms of tbe Federal Power Act, or subject to any license of the Federal Power Commission heretofore or hereafter issued, or subject to tbe jurisdiction or control of tbe Federal Power Commission.
“This tbe 5th day of September, 1940, This cause having been first beard at tbe August 5 Term of this Court and being held under advisement until this term. Zeb V. Nettles, Judge Presiding.”
Tbe policy of tbe State is set forth in tbe following statutes — N. C. Code, 1939 (Micbie), see. 2801: “Tbe city may own and maintain its own light and waterworks system to furnish water for fire and other purposes, and light to tbe city and its citizens and to any person, firm or corporation desiring tbe same outside tbe corporate limits, where tbe service is available, and shall in no case be liable for damages for a *75failure to furnish a sufficient supply of either water or light. And the governing body shall have power to acquire and hold rights of way, water rights, and other property, within and without the city limits.”
Section 2832 goes into the needs of municipality, including electric lighting systems. “Any city shall have the right to acquire, establish, and operate waterworks, electric lighting systems, gas systems, schools, libraries, cemeteries, market houses, wharves, play or recreation grounds, athletic grounds, parks, abattoirs, slaughterhouses, sewer systems, garbage and sewerage disposal plants, auditoriums or places of amusement or entertainment, and armories. The city shall have the further right to make civic survey of the city, establish hospitals, clinics, or dispensaries for the poor, and dispense milk for babies; shall have the power to establish a system of public charities and benevolences for the aid of the poor and destitute of the city; for the welfare of visitors from the country and elsewhere, to establish rest rooms, public water-closets and urinals, open sales places for the sale of produce, places for hitching and caring for animals and parking automobiles; and all reasonable appropriations made for the purposes above mentioned shall be binding obligations upon the city, subject to the provisions of the constitution of the state.” Public Laws 1917, ch. 136.
The municipality has the power to purchase electricity for its own use and the use of its citizens, and where it is authorized by general and special statutes to purchase current from a power company and to resell and distribute it at a profit to its citizens and to those within the three-mile zone therefrom, the grant of power to do so is effective in law under the authority of the Legislature to grant municipal corporations any powers which promote the welfare of the public and the communities in which they are established unless prohibited by the organic law. Holmes v. Fayetteville, 197 N. C., 740 (741).
The defendants contend: “Since the City is now clearly proceeding only under its charter and the Revenue Rond Act of 1935, no certificate of convenience and necessity is required.” There are two Revenue Bond Acts in North Carolina under which the City could proceed. One is the Revenue Bond Act of 1935 and the other is the Revenue Bond Act of August, 1938. The Revenue Bond Act of 1935, by its terms, expired in 1937. However, two amendments to the Charter of the City of High Point, Chapters 65 and 561 of the Public-Local Laws of 1937, provided that the City of High Point might continue to exercise the'powers conferred by the Revenue Bond Act of 1935, notwithstanding any time limitation upon the exercise of said powers contained in that Revenue Bond Act, and that the City was authorized to issue within a period of four years from February 15, 1937, revenue bonds under the 1935 Revenue Bond Act for any purpose for which the City was authorized *76by any other law to issue bonds. The Revenue Bond Act of 1938 was ratified August 13, 1938. In most respects, its provisions are substantially the same as those of the Revenue Bond Act of 1935. It was necessary to enact another revenue bond act in 1938 because the old one had expired and because the State itself and many of its municipalities were anxious to obtain the benefits of PWA grants and loans. The chief difference in the two acts is contained in Section 9 of the Revenue Bond Act of 1938, which provides in effect that any municipality proceeding under that act should obtain a certificate of convenience and necessity from the Utilities Commissioner before constructing a gas or electric plant. Section 10 of the Revenue Bond Act of 1938 provides that: "The powers conferred by this article shall be in addition and supplemental to, and not in substitution for; and the limitations imposed by this article shall not affect the powers conferred by any other general, special or local law.” (Italics mine.)
Section 12 of the Revenue Bond Act of 1935, C. S., 2669 (12), provides that: “It shall not be necessary for any municipality proceeding under this Act to obtain any certificate of convenience and necessity . . . from any bureau, board, commission . . ., except the approval of the Local Government Commission as required by the Local Government Act.” (Italics mine.)
The record discloses that the consent of the Local Government Commission was obtained.
This project was authorized on 27 April, 1938, both as to construction and issuance of bonds under the charter of the city of High Point and the Revenue Bond Act of 1935, because the Revenue Bond Act of 1938 had not been adopted. After the adoption of the Revenue Bond Act of 1938, the city amended its bond resolution, not with respect to the authorization of the project, but only with respect to certain provisions relating to the terms of the bonds. The city has now amended the resolution of 20 March, 1939, so as to eliminate every provision that can be said to be based on the 1938 Revenue Bond Act, and so as to recite the city charter and the Revenue Bond Act of 1935 only as authority, and has reenacted the amendatory resolution of 20 March, 1939, as amended “pursuant to authority of Article 2-a of the Charter of the City of High Point.”
The city is not now proceeding under the Revenue Bond Act of 1938, is not availing itself of any of the powers contained in that act; therefore, does not require the certificate of convenience and necessity, which is necessary only for municipalities proceeding under the 1938 Act.
As I understand the opinion on the former appeal, it only held that the city was then proceeding under the Revenue Bond Act of 1938 and therefore the certificate was required. The Court did not hold that the *77city could not proceed under the Bevenue Bond Act of 1935, and its Charter, but only that it was proceeding under the 1938 Eevenue Bond Act. The question did not and could not arise whether the bonds could be issued under the Bevenue Bond Act of 1935. Now, the city has amended its bond resolution so that it is in fact proceeding under the Bevenue Bond Act of 1935 and the city charter. The law of the case is unchanged, but it does not apply to the present fact situation.
As I understand, the majority opinion of this Court is to the effect that defendant has followed the chart set forth in the last opinion of this Court and practically complied with its pronouncements except that the city of High Point “could not lawfully proceed with the undertaking without first obtaining a certificate of convenience and necessity from the Public Utilities Commission of the State of North Carolina.”
Defendant, city of High Point, contends that under its charter and Bevenue Bond Act of 1935, it is not necessary for a municipality to obtain a certificate of convenience and necessity. This contention was sustained by the court below, in which I agree.
If the city of High Point had to obtain a certificate of convenience and necessity, this must be obtained from the Utilities Commission (N. C. Code, supra, sec. 1037 [d]) : “No person, or corporation, their lessees, trustees or receivers shall hereafter begin the construction or operation of any public utility plant or system or acquire ownership or control of, either directly or indirectly, without first obtaining from the Utilities Commissioner a certificate that public convenience and necessity requires, or will require, such construction, acquisition, or operation: Provided, that this section shall not apply to new construction in progress at the time of the ratification of this act, nor to construction into territory contiguous to that already occupied and not receiving similar service from another utility, nor to construction in the ordinary conduct of business. The utilities commissioner is hereby empoioered to malee rules governing the application for, and the issuance of such certificates of public convenience and necessity.” (Italics mine.)
This section is not applicable to an electric membership corporation, organized under the provisions of sec. 1694 (7-28). And by reason of the provisions of section 1694 (28) of the statute under which it was organized, there was no error in the holding of the lower court that the defendant electric membership corporation was not required, before beginning the construction or operation of its facilities for serving its members by furnishing them electricity for lights and power, to obtain from the Utilities Commissioner of North Carolina a certificate that public convenience and necessity requires, or will require, the construction and operation of said facilities by said defendant. Light Co. v. Electric Membership Corp., 211 N. C., 717 (720). The defendants con*78tend that certificate of convenience and necessity is not applicable here. The statutes on which it relies do not so require. If it was not required, the city of High Point, in not obtaining the certificate, was not acting ultra vires, or beyond its powers. I do not think that the Duke Power Company, or the intervening plaintiffs, are proper parties who are permitted to raise this objection. The Utilities Commissioner represents the sovereign. N. 0. Code, supra, sec. 446: “Every. action must be prosecuted in the name of the real party in interest,” etc. The plaintiffs are not the real parties in interest. The Duke Power Company, and the interveners, as taxpayers, under our decisions, are permitted to inquire into certain illegal conduct effecting a taxpayer. Barbee v. Comrs. of Wake, 210 N. C., 717.
I can find no authority for plaintiffs, Duke Power Company, or the interveners, taxpayers, to act for the sovereign State in forcing the defendant city of High Point, if it was required to do so, to obtain a certificate of convenience and necessity. Until through the sovereign, the State proceeds, this action does not present this aspect of the case for the Court’s determination.
In S. v. Scott, 182 N. C., 865 (869), Walker, J., said for the Court: “We then have a case, in the name of the State upon the relation of its Attorney-General and D. H. McCullough against the defendants, to enjoin the violation by the latter of the law creating them, wherein it is alleged that they have committed an ultra vires act, and to the extent that, if they pay their expenses in the doing of the alleged unlawful act, they will misapply the trust fund established by the statute for the lawful costs and expenses of the board, and thereby are diminishing the amount which should go into the public treasury by the terms of the law, which provides in 0. S., 7019, that after paying expenses, ‘Any surplus arising shall, at the end of each year, be deposited by the treasurer of the board with the State Treasurer to the credit of the general fund.’ C. S., 1143, entitled ‘Actions by the Attorney-General to prevent ultra vires acts by corporations,’ provides: In the following cases the Attorney-General may, in the name of the State, upon his own information, or upon the complaint of a private party, bring an action against the offending parties for the purpose of — 1. Restraining by injunction a corporation from assuming or exercising any franchise or transacting any business not allowed by its charter. 2. Restraining any person from exercising corporate franchises not granted, . . .” “To restrain corporations from ultra vires acts and which was applicable where purpose was not to dissolve a corporation, as under section 1187, but to preserve it in its functions without abuse of its powers, Attorney-General v. R. R., 28 N. C., 456. This section embodies provisions of Rev. Code, ch. 26, sec. 28; Rev. Statutes, ch. 26, see. 10; Acts of 1831, ch. 24, sec. 5, which *79authorize injunction proceedings in a court of equity. Tbe authority, given by statute, as approved by this Court, would seem to be ample justification for granting the relief prayed for by plaintiff in this action. The Attorney-General is doing only ivhat the statute permits him to do in the interest of the public, of his own motion, or upon the complaint of a private party.” (Italics mine.) Upon motion in the above case, the Attorney-General was made a party, which was held legal and gave the Court jurisdiction.
In Singer & Sons v. Union Pacific Railroad Co., 61 Sup. Ct. Rep., 254, U. S. Law Ed., 4089 (No. 84, decided 15 December, 1940), it is held: “Under sec. 1 (18) of the Interstate Commerce Act an extension of a line of railroad may not be constructed by a railroad subject to the Act, except upon the issuance by the Interstate Commerce Commission of a certificate that the extension is required by public convenience and necessity. Under sec. 1 (20) any party in interest may maintain a suit to enjoin construction of an extension not approved by the required certificate. But a property owner, conducting a business served by a public market, which will be adversely affected by diversion of traffic and customers to a new market to be served by the allegedly illegal extension, is not a party in interest within the meaning of sec. 1 (20). . . . The interests of merely private concerns are amply protected even though they must be channelled through the Attorney-General or the Interstate Commerce Commission or a state commission.” (Italics mine).
The question is jurisdictional. In Rental Co. v. Justice, 211 N. C., 54 (55), we find: “In speaking of section 55 of the Code of Civil Procedure, which was substantially the same as C. S., 446, Ruffin, J., says: ‘Under The Code there is no middle ground; for whenever the action can be brought in the name of the real party in interest, it must be so done.’ Rogers v. Gooch, 87 N. C., 442. A real party in interest is a party who is benefited or injured by the judgment in the case. An interest which warrants making a person a party is not an interest in the action involved merely, but some interest in the subject matter of the litigation. The real party in interest in this action is the Life Insurance Company of Virginia and not its rental agent, the Choate Eental Company, and it was, therefore, error to charge the jury that under all the evidence they should answer the issue in the affirmative.”
The real party in interest here is the sovereign, acting through the Attorney-General or the Utilities Commissioner.
In Branch v. Houston, 44 N. C., 86 (87), Pearson, J., said: “The distinction is this : If there be a defect — ■e.g., a total want of jurisdiction apparent upon the face of the proceedings, the court will, of its own motion, ‘stay, quash, or dismiss’ the suit. This is necessary, to prevent *80the court from being forced into an act of usurpation, and compelled to give a void judgment. For if there be no plea to the jurisdiction, and the 'general issue’ is not pleaded (without which there cannot be a judgment of nonsuit), unless the court can stay, quash, or dismiss the proceedings, it must, nolens volens, go on in an act of usurpation and give a void judgment, which is against reason. So ex necessitate, the court may, on plea, suggestion, motion, or ex mero motu, where the defect of jurisdiction is apparent, stop the proceeding. Tidd, 516, 960.” Henderson County v. Smyth, 216 N. C., 421 (423-4).
In the previous hearing of the instant case this question was not raised, though numerous others were. Nor is this question properly raised on this record. This Court is without jurisdiction to pass upon a question not properly before it on appeal. Const, of North Carolina, Art. IY, sec. 8.
If there is any wrong done to the sovereign, the State, by the defendants’ not obtaining a certificate of convenience and necessity, the Utilities Commissioner or the Attorney-General alone are empowered to inquire into the violation of the statute — if there is such. The Duke Power Company and the interveners cannot substitute themselves and do what the sovereign is required to do.
In McCormick v. Proctor, 217 N. C., 23, the majority opinion holds : The general rule is that courts of equity will not interfere with the enforcement of the criminal laws of the State through injunctive procedure, but will remit the person charged to setting up his defense or attacking the constitutionality of the statute in a prosecution thereunder.
The only exceptions are when it “is necessary to protect effectually property rights and to prevent irremediable injuries to the rights of person.” There are no rights of person involved here and in the present case the plaintiffs have no property rights to effectually protect. The State, through its Attorney-General and Utilities Commission, are the only ones to question the failure to obtain a “certificate of convenience and necessity.”
28 Amer. Jurisprudence, sec. 163, at p. 253, in part, says: “Persons or corporations seeking to restrain acts of public corporations or officials must have sufficient title or interest to enable them to maintain the suit. Suits for the protection of public rights are ordinarily brought by the Attorney-General.”
In Merrimon v. Paving Co., 142 N. C., 539 (549), Connor, J. (Henry &.), said: “Municipal corporations would find themselves embarrassed at every point of their activity, unless protected by some such restraint upon suits by the citizens. Officious intermeddlers or interested competitors could easily prevent all corporate action if, without notice to the *81corporation or its governing body, courts entertained sucb suits.” Wheeler v. Bank, 209 N. C., 258 (260); 124 A. L. R., p. 574 (585).
Tbe sovereign is interested in all its citizens and corporations to see that all have equal rights and opportunities. Tbe plaintiff, Duke Power Company, and tbe interveners are interested alone in their private businesses. It is for tbe sovereign and not them to act, if defendants’ action is ultra vires on this phase of tbe controversy. North Carolina ranks first in developed water power of all Southern States and fourth in the nation. Industries and homes should have as cheap electricity as feasible, always realizing that those who have invested their money in their businesses should have and are entitled to a just and fair return on the investment. At no time should we kill the goose that lays the “golden egg.” The production of power, in industries and the home, by wood fuel is a thing of the past. Coal has to be imported and we have fortunately in the State vast water power possibilities for electricity.
It is a matter of common knowledge that dozens of North Carolina municipalities own their own water and electric power plants; some in, and others outside of city limits. This power is granted by the General Assembly and therefore legal. The city of High Point has a population of 38,495. It has splendid manufacturing enterprises, including the manufacture and display of furniture, which is only excelled by one other city in the nation; and a pay roll each year of millions of dollars. The estimated cost of the project is $6,492,600, of which $2,921,600 will be a grant from the Federal Government, P¥A, and the rest from proceeds of the sale of revenue bonds. The plant will have a capacity of 21,000 kilowatts, and will deliver at High Point approximately 49,000,-000 kilowatt hours per annum. The consumption of electricity in the city of High Point in the year preceding June, 1939, was approximately 44,500,000.kilowatt hours.
This is the fourth time this case has been in this Court and the litigation has been pending for years. .The defendant has the legislative authority to build this project and has already invested a large sum of money in the preliminary stages. The purpose is to get a larger volume of, and cheaper, electricity for all the people of High Point. Perhaps nothing is now more important than water and electricity for a city.
In McAllister v. Pryor, 187 N. C., 832 (1924), speaking to the subject, it was said at pp. 835-6: “Electric appliances are becoming more in use each day. The old methods are giving way to the new. These appliances are used for ironing, cooking, washing, heating, etc. The North and South Carolina Public Utility Information Bureau states that there are now some 52 electric appliances that can be used in the home and elsewhere, such as electric ranges, bake ovens, sewing machine motors, washing machines, churns, disk stoves, dish washers, fireless cookers, *82fans, grills, ironing- machines, etc. Many new nses will be discovered. These appliances can be purchased at all the leading electric power stores. These appliances have been of great benefit and use, saving of time and money, to the women in the homes and in other places.” Since the above decision, still newer uses have come into existence. The manufacturers of the State are now almost entirely dependent upon electricity for power; old methods are discarded. I do not question the good faith of the plaintiffs who brought this action. It is their duty as trustees to look after the interest of their properties and stockholders. May I be so bold as to say that the Duke Power Company has done a great work in North and South Carolina, through efficient officials and able attorneys, to build up the States, encourage old and new industries that have large pay rolls, and give employment to an army of bread-winners. We have a large State, with vast water power possibilities. It is of interest to home-owners, manufacturers and others to have as cheap electricity as is reasonable, but in getting this it is important not to cripple gqing concerns. Competition is the life of trade. The door should be open to all, as far as possible, to use this God-given power for all the people of the State. There is abundant room for everybody.
I concur in the majority opinion except in so far as it deals with the question as to who may challenge the power of the city and the question of certificate of convenience and necessity. As to these, I think the contention of defendant, city of High Point, is correct, and that the acts, under which it is operating, do not require such a certificate. Further, the plaintiffs have no authority in this injunction proceedings (equitable in its nature) to challenge High Point’s power to proceed with the project. If the authority of the city of High Point to proceed is to be questioned, it is the duty of the Utilities Commissioner or the Attorney-General to raise this question. Jurisdiction cannot be granted by consent. The above public officers may conclude that there is nothing-appearing on the record that requires interference if so the Utilities Commissioner may quickly grant the license so that this project may go forward — giving 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.
For the reasons given, I think the judgment of the court below should be affirmed, the injunction vacated, and the project permitted to proceed in accordance with the judgment.