McGuinn v. City of High Point

Seawell, J.,

dissenting: After a candid examination of the present case and those which have preceded it (Williamson v. High Point, 213 N. C., 96, 195 S. E., 90; Williamson v. High Point, 214 N. C., 693, 200 *83S. E., 388; McGuinn v. High Point, 217 N. C., 449, and parallel cases of Yadkin County v. High Point, 217 N. C., 462), and of tbe laws, proceedings, and resolutions through which, from time to time, the defendant municipality has sought to remove any legal impediments pointed out by this Court, I am convinced that the matter has been removed from the field of substantial objection into a territory largely technical. In my judgment the questions now raised do not present any principles of law or procedure of such value that they must be preserved at all costs; none, in fact, of sufficient force to overcome the presumption in favor of the correctness of the decision in the lower court.

Counsel for the plaintiffs have not fought without a measure of success. They have been instrumental, at least, in reducing the High Point project down to universally recognized standards of municipal necessity, both territorially and in concept of purpose. They have aided in preventing the expropriation of control of a State-created municipality to Federal jurisdiction. They have removed the city of High Point as a potential competitor for business from the general public. To further reductions or restrictions, or total defeat of the project, I do not believe the interveners entitled, either in morals or in law. They now stand opposed to the city’s purpose to provide electric current for its own inhabitants within its own territory, to acquire and conduct facilities for that purpose of the same character and kind that other municipalities of the State now possess and freely enjoy without question as to their powers. The objections now advanced to justify this position relate to supposed defects of procedure and not to anything inherent in the project itself which would render it ultra vires, or which might necessarily prove detrimental to the public or to any taxpayer as such. And from the procedural point of view, into which the controversy has now drifted, the objections are without merit.

Certainly the want of a certificate of convenience and necessity is not a technical matter, if the law should require such a thing in order to license the municipality to supply its inhabitants with a public service specifically authorized by the general laws, as well as by its own charter, and considered so necessary to decent government that the financing is not required to be referred to the electorate. Williamson v. High Point, supra; Ellison v. Williamston, 152 N. C., 147, 67 S. E., 255. But it would be passing strange if the law did require it. The result would be to make the city of High Point unique amongst the municipalities of the State, none other of which is subjected to such license and supervision with respect to a service rendered its own inhabitants, or the acquisition and conduct of facilities therefor. It would strike down the principle of local self-government, violate a State policy of more than 150 years standing, and would discriminate against a municipality and *84the citizens thereof by withholding from them the exercise of governmental powers intended for their welfare and comfort, freely enjoyed by all other such political subdivisions of the State, without the proposed suzerainty. Any construction of pertinent statutes, either singly or in combination, which brings about such a consequence, must be supported by reasons sufficiently compelling. 59 O. J., p. 968, section 574, and cases cited. No such reasons are to be found in the record.

When the municipality was more ambitious in its designs, intending to serve the general public outside its own territory and take its proprietary profit, it was fair and just, if not within the intendment of the statute, that it could do so only upon such conditions as applied to private enterprises with which it sought to come into competition. But that is water under the bridge. The Court decided that the city had no right to engage in such an enterprise under the restrictive provisions of the 1935 Revenue Bond Act, section 3. Williamson v. High Point, 214 N. C., 693, 200 S. E., 388; Holmes v. Fayetteville, 197 N. C., 740, 150 S. E., 624. Gessat ratio, cessal lex.

I have never believed that the 1938 Revenue Bond Act at any time intended that a municipality availing itself of its privileges should be compelled to obtain from the Utilities Commissioner a certificate of convenience and necessity with respect to any project it might undertake under powers already conferred upon it by the general law. But that question is unimportant to the decision of the present appeal, and further consideration of it will but confuse the issue. We may as well leave this matter as it is, and pass to other ground.

The city of High Point, perforce, accepts the ruling of McGuinn v. High Point, supra, construing the 1938 Revenue Bond Act and striking down the exceptive provision with respect to its project. It rests its case here on the availability of the 1935 Revenue Bond Act to meet its present needs, and upon the choice which it has made, through what it regards as valid municipal action, to proceed with the financing of its electric power project through the provisions of that act. For that purpose the 1935 Revenue Bond Act is incorporated, by sufficient reference, into the city charter. Public-Local Laws of 1937, chapter 65 and chapter 561. And the High Point Power Commission, created by chapter 600, Private Laws of 1939, and succeeding to the powers of the city council with respect to this project, has, by appropriate resolution, 15 July, 1940, adopted this act as authority for its proceeding, and purposes to issue its bonds thereunder.

This the Court, in the main opinion, says cannot be done. And here, for convenience, I quote the pertinent part of the statute at which the argument of the Court is aimed:

*85“Sec. 2. All of the powers and duties of the City of High Point, North Carolina, with respect to the establishment, acquisition, construction, improvement and operation of an 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, in the name of the City of High Point, and all resolutions and acts of the Council of the City of High Point prior to May first, one thousand nine hundred and thirty-nine, with respect to the said electric light, heat and power plant and system shall be deemed and considered as acts of said Board of Power Commissioners.”

The obvious purpose of the reference to the resolutions as intending only to identify the project herein undertaken and to distinguish it from an electric distribution plant already existing, which, under the law, section 3, is still left under the control of the city council, is ignored.

It is held in the opinion that the phrase “pursuant to the resolution of April 27th, 1938, and amendments thereto,” must be confined to the resolution of 27 April, 1938, and the one amendment made thereto — the resolution of 20 March, 1939 — which latter refers to the 1938 Eevenue Bond Act requiring a certificate of convenience and necessity. As we have seen, the Eevenue Bond Act of 1935, to which the first resolution above mentioned referred, requires none. The opinion does not go so far as to hold that the language used in the statute is not sufficiently broad and apt to include, prospectively, all amendments which might be made under sufficient authority. Such a conclusion would be obviously specious and untenable. The conclusion is based upon an alleged want of authority in the board of power commissioners to act in the premises at all or make any further amendpient.

It is clear that the restriction of the 1938 Eevenue Bond Act, referring to a certificate of convenience and necessity, has no application except to a procedure under that act, and is not intended to affect powers given to municipal corporations under other laws, general or special, when no resort is had to this particular Bond Act for financing. Neither does the act creating the High Point Board of Power Commissioners mention any such condition or restriction on the powers it purports to transfer from the city council to that body. ' Whence, then, comes the condition or restriction which the majority opinion attaches to that power? What renders them powerless to amend or rescind the resolution of 1939 and adopt the 1935 Eevenue Bond Act as authority for financing their electric power project?

The reasoning upon which the opinion in chief stops the clock at this point and freezes the situation with the 1939 resolution in force and *86denies to tbe board of power commissioners tbe power to rescind or amend it rests upon a very simple speculation wbicb is made regarding tbe intention of tbe Legislature. It is thought that the Legislature would never have given to the board of power commissioners such uncontrolled power as the act confers without the supervision of the Utilities Commissioner, since they are not responsible to the electorate — that is, they are not elective officers. Tbis is further supported by tbe suggestion that since tbe Federal Government requires a license witb regard to navigable streams witbin its jurisdiction, wby is it not tbe policy of tbe State to require sucb license and supervision witb regard to nonnavigable streams witbin its jurisdiction? Tbis is remarkable, since we are not discussing tbe requisites of procedure under tbe 1938 Revenue Bond Act, but tbe power of tbe board of power commissioners to proceed under any act available to tbe municipality.

I do not tbink we can reach a proper construction of tbe act creating tbe board of power commissioners and conferring powers upon it as a municipal agency by piling tbe Pelion of surmise upon tbe Ossa of conjecture. “Tbe Court cannot indulge in speculation as to tbe probable or possible qualifications wbicb might have been in tbe mind of tbe Legislature.” 59 O. J., p. 955; Dean v. Bell, 230 N. Y., 1, 128 N. E., 897; Greer v. Kansas City C. C. & St. J. Railway Co., 286 Mo., 523, 228 S. W., 454. Tbe meaning of tbe law must be found witbin its terms; Hunt v. Eure, 188 N. C., 716, 125 S. E., 484; Abernethy v. Commissioners, 169 N. C., 631, 86 S. E., 577; State v. Leuch, 156 Wis., 101, 144 N. W., 290; United States v. Standard Brewery Co., 251 U. S., 210, 64 L. Ed., 229; and tbe situation to wbicb it is to be applied. Blair v. New Hanover County, 187 N. C., 488, 122 S. E., 298; Bowman v. Industrial Commission, 289 Ill., 126. Ve must credit tbe Legislature witb a knowledge of tbe English language and witb tbe ability to make its meaning clear through tbe terms it employs in tbe statute. And its silence upon sucb an important matter is significant. Tbe law is written primarily for tbe people who administer it, not for courts. For tbis reason, it is my thought that tbe Legislature would not have sent out tbis law, plain enough as it is for tbe understanding of tbe administra-tional officers for whom it is made, accompanied, so to speak, by a rider upon tbe winds, witb a cryptic message wbicb can only be unriddled by tbe astute minds of learned men.

A more practical examination of tbe statute thus challenged is in order, to see whether, upon sucb an hypothesis, it can be made to mean what it does not say.

It 'cannot be disputed that if tbe city council were still functioning witb relation to tbis project it would still have power to pass tbe resolution, basing its financing on tbe 1935 Act, as tbe substituted power com*87mission bas attempted to do. Tbe spectacle of a municipality choosing the more favorable and liberal source as authority for the exercise of its powers may be disconcerting, but it is not per se unlawful; and this Court would not undertake to coerce the city in its choice, while acting under such plenary power, unless it intended to exhibit a bad example of government by injunction in intermeddling with the administrational affairs of the city by usurping a discretion which the law has wisely left within the exclusive province of the city authorities. It becomes a question, then, whether the statute, in substituting the board of power commissioners for the city council, succeeded, as was its apparent purpose, in securing an uninterrupted flow of power and function from the one to the other- — -transferring all the power which the city council itself had — which would, indeed, be adequate to take over the project in its initial stages, as it is, and carry it on to completion, making such provision for its financing as the city council itself might have done.

The statute itself, construed contextually and as a whole, leaves no doubt that it was intended to vest in the board of power commissioners all the power which the city council had with reference to the electric power project.

Returning, then, to the speculations as to legislative intent upon which the majority opinion critically hinges its conclusion, it is one of the fundamental rules of construction that “the Court cannot attribute to the Legislature an intent which is not in any way expressed in the statute.” 59 C. J., p. 958, section 570, and cases noted. “The intention of the Legislature in enacting a law is the law itself.” Justice Adams for the Court in Hunt v. Eure, supra. Edwards v. Morton, 92 Texas, 152, 153, 46 S. W., 792; Cheney v. Cheney, 110 Me., 61, 63, 85 A., 387. Speculation as to the reasons or motives of the Legislature is of little value, even when there are doubts in the statute to be cleared up. When they are indulged to the extent of imposing upon a statute drastic conditions wholly foreign to its terms, it becomes judicial legislation; Norman v. Ausbon, 193 N. C., 791, 793, 138 S. E., 162; S. v. Bell, 184 N. C., 701, 115 S. E., 190; S. v. Barco, 150 N. C., 792, 796, 63 S. E., 673; Hubbard v. Dunn, 276 Ill., 598, 115 N. E., 210; Commonwealth v. Acker, 308 Pa., 29, 162 A., 159; and we are forcibly reminded that it is the prerogative of the Legislature, not of this Court, to engraft limiting conditions upon the powers it confers upon a municipal agency with respect to its essential governmental duties.

Moreover, the attitude of mind attributed to the Legislature toward the High Point Board of Power Commissioners is refuted by the long established policy of the Legislature with respect to such municipal agencies. In the orderly distribution of political powers, particularly those of government, the State has not regarded the Utilities Commission *88as a general board of control, or a suitable body to license or supervise either State or municipal agencies to whom bas been entrusted, in no matter bow small a measure, tbe duties of government, and some degree of tbe State’s sovereignty. Tbe Legislature bas never required such supervision because tbe members of tbe boards, or agencies, were “not responsible to tbe electorate.” Tbe State went as far in that direction as it thought sound policy would permit when it created for tbe fiscal control of counties and municipalities tbe Local Government Commission, whose official approval, we find from tbe record, bas already been sought and obtained.

Out of scores of instances I might list in which tbe Legislature bas forgotten to place municipal agencies under tbe Utilities Commissioner, although tbe members were not “responsible to tbe electorate,” I might mention tbe Morehead City Port Commission, chapter 75, Private Laws of 1933; Webb v. Port Commission, 205 N. C., 663; tbe many bousing authorities constituting municipal agencies appointed under tbe State Housing Act, chapter 456, Public Laws of 1935; Wells v. Housing Authority, 213 N. C., 744; and numerous other boards of like kind now functioning throughout tbe State. I have yet to see a single one where that sort of supervision is required. Whether tbe Legislature was presumed to take cognizance of tbe fact that tbe resolution of 1939 was on tbe city records, I do not know. What they did know, however, because it is a rule of construction that these laws relating to tbe same subject are to be read together (In re: Town of Rutland, 128 N. Y. S., 94; McCullough v. Scott, 182 N. C., 865, 109 S. E., 789; Keith v. Lockhart, 171 N. C., 451, 88 S. E., 640; United States v. Commissioner of Immigration of Port of New York, 261 U. S., 611, 67 L. Ed., 826; United States v. McCarl, 275 U. S., 1, 72 L. Ed., 131), was that tbe charter of tbe city gave it tbe authority to proceed under tbe Eevenue Bond Act of 1935, which it now desires to do, and they put nothing in tbe act creating tbe board of power commissioners which indicates a purpose to deny them that power.

To save time, I refrain from comment on tbe internal evidences that tbe act creating tbe board of power commissioners intended them to exercise tbe right to make all resolutions necessary to establish and complete tbe project, including appropriate resolutions as to its financing. Tbe act makes all prior resolutions of tbe city council tbe acts of tbe board of power commissioners. It would be odd if they could not amend their own resolutions.

I think tbe assumption in tbe opinion in chief that tbe project bad been established by the resolution of 19S8, as amended by the resolution of 1939, was inadvertent. It is not supported either by tbe statute itself or by tbe condition of tbe project at tbe time tbe board of power com*89missioners was substituted for tbe city couucil. It presents a concept of tbe condition of tbe project calculated to do tbe defendants here no little barm in tbe appraisal of tbe powers intended to be given to tbis agency. Also it is refuted by tbe wording of tbe act. Tbis refers to tbe project as yet to be established. It was still, and is now, nothing more than an undertaking in its initial, unfinanced stages. From inception to tbe present it has been kept so by tbe restraining band of tbe court. Every movement has been opposed by plaintiffs and intervening interests and every inch of progress disputed by able counsel.

In substituting a board of power commissioners for tbe city council as a convenient method of handling tbis important project, it is not to be supposed that tbe Legislature intended to cripple tbe power of tbe municipality in making such ordinances as might be necessary for its financing and completion by tbe only authority left by tbe Power Commission Act through which tbis might be done — tbe board of power commissioners to whom tbe project was entrusted.

After all, tbe power intended to be given tbe board of power commissioners by tbe act creating it may be measured correlatively by tbe power which was taken away from tbe city council. After using as comprehensive language as tbe dictionary affords in conferring full powers on tbe power board, tbe statute provides-: “Tbe City Council after May first, one thousand nine hundred and thirty-nine, shall no longer exercise tbe powers or authority theretofore vested in them with respect to said electric light, beat and power plant and system.” Where, then, did tbis power of tbe city council to deal with tbis important enterprise go? Under tbe main opinion a substantial part of it went nowhere. It is nonexistent.

I do not know to what extent a city of many thousands of inhabitants, or any municipality, and tbe people within it, may be constitutionally deprived of tbe powers of government necessary to. their welfare by legislative action, while other cities of tbe State are left immune, but I do know that such a blackout of municipal power and function is not conceivably within tbe intention of any group qualified by intelligence to make their way into a legislative assembly.

Tbe decision admits that there are some powers which tbe board of power commissioners may exercise without tbe supervision of tbe Utilities Commission, and without receiving a certificate of convenience and necessity. One of them is, by resolution, to cancel tbe commitment to tbe Federal Power Commission and rescind tbe resolution accepting tbe license. It is said, since that transaction was merely ultra vires, it did not “take much power” to rescind it. And yet it was of sufficient substance as to justify tbis Court in refusing to modify its injunction so long as it lasted. McGuinn v. High Point, supra. Tbe present plea of *90the plaintiffs relates to the same sort of thing — whether the injunction shall be continued to prevent an ultra vires act — the further prosecution of the project without a certificate of convenience and necessity. If the want of such certificate goes to the power of the commission to act, as the opinion certainly indicates, it defeats its power to act in the one case as completely as it does in the other; if it goes only to limit municipal procedure in financing, the power of the commission to act in the one ease is as valid as it is in the other, and the exercise of that power in selecting the 1935 Act as authority for financing the power project contravenes nothing which this Court has the right to maintain as an obstruction.

There is, therefore, more behind the High Point Board of Power Commissioners than a simple pull on their own bootstraps. In good faith they have attempted only to exercise a power given them by legislative enactment. The reasons assigned are not sufficient to justify us in destroying it by judicial interpretation. The functions and powers they were called into being to exercise were not new, but had existed long before this controversy began, and the grant of powers given them was not a special one, directed to a fixed situation. It was, as was the power of the city council before it, limited only by the needs of the project entrusted to them, to be exercised in as full and ample a manner as might have been done before the powers were transferred.

The position that the city of High Point is confined to “special law” for its procedure, without the aid of the general laws conferring powers on municipalities with respect to the acquisition, creation, and conduct of facilities of the kind projected, is untenable. Under the Revenue Bond Act of 1935, such powers possessed by municipalities under the general laws are recognized, mentioned, respected, and the projects to which they relate are specifically within the financing provisions of the act. The interpretation of this act as applying solely to construction of facilities wholly within the city is, therefore, upon the face of it, unwarranted. I quote for convenience: (Chapter 473, Public Laws of 1935, section 4) : “Additional powers of municipalities. In addition to the powers which it may now have, any municipality shall have power under this article: (a) to construct, acquire by gift, purchase, or the exercise of the right of eminent domain, reconstruct, improve, better or extend any undertaking, within the municipality, and to acquire by gift, purchase, or the exercise of the right of eminent domain, lands or rights in land or water rights in connection therewith, (b) to operate and maintain any undertaking for its own use or for the use and benefit of its inhabitants and also to operate and maintain such undertaking for the use and benefit of persons, firms, and corporations (including municipal corporations and inhabitants thereof) whose residences or places *91of business are (or which are) located in such municipality, (c) to issue its bonds to finance in whole or in part the cost of the acquisition, purchase, construction, reconstruction, improvement, betterment or extension of any undertaking,” etc.

Under the general laws thus recognized and incorporated into the act, municipalities had power to purchase, conduct, own and lease public utilities (C. S., 2787 [3]), to acquire land or water rights, either within or without the city, to be used for water, light, or electric power (O. S., 2791), as within the projects to be financed under the provisions of the act, so long as they are used for the inhabitants of the city. The statutes cited put facilities for a water supply and for electric current on the same footing — “within or outside the city” — and I am sure it will be found few cities can find suitable water supply within the city.

The defendants are not seeking to relitigate anything heretofore decided by this Court. The question presented here is clear cut: Whether the board of power commissioners had the power to rescind the resolution of 1939 relating to procedure under the 1938 Eevenue Bond Act, requiring a certificate of convenience and necessity. If they had that power, it is rescinded and a new situation or changed condition is presented, justifying the equitable relief prayed for. There is nothing in the ease of McGuinn v. High Point, supra, or the second Williamson case, supra, that touches this question even remotely. To hold that there is anything in the second Williamson case, supra, so restricting the coverage of the 1935 Eevenue Bond Act as to make it unavailable to the municipality for financing its project as now presented is to do violence to the express terms of the opinion. The McGuinn cáse, supra, simply held that a certificate of convenience and necessity was necessary to procedure under the 1938 Eevenue Bond Act. The question of the authority of the board of power commissioners to rescind that resolution and adopt another law for its procedure could not, in the nature of things, have arisen until there was an attempt made to exercise that power, which was not until 15 July, 1940, after the opinion in the McGuinn case, supra, was handed down.

The plea of res ad judicata is strictly definitive in its nature; there is a pattern both of law and fact upon which it must he imposed. This does not appear in this record.

The conclusion reached in the main opinion that there has been no change in the condition of defendants’ project is based entirely on a supposed want of power, and that, in turn, is predicated upon an attempted limitation, through statutory construction, upon the power conveyed to that body, which I regard, under the authorities cited, as arbitrary and unsupported.

*92The provision in the Power Commission Act that it shall not affect pending litigation is cited as militating against the relief sought by the defendant municipality. It is said that its purpose was the affectation of pending litigation. I do not agree with this, but I am sure it can have no such effect. It accomplishes, and was intended only to accomplish, a simple transfer of the power vested in the city council to the board of power commissioners. There is not a power added which the city council did not have, not a change attempted under its authority which the city council might not have made. The act itself does not alter the “status quo ” and it confers no authority, not already existing, by which this might be done.

The rights with which we are dealing are brought within the equity jurisdiction of the Court. There is no denial that the equity exists. It is true we cannot override positive law in the application of equitable principles, but when reliance is placed on the strict law — the "strictum et summum jus“ — we are not required to follow a harsh construction which would make the law discriminatory and defeat equity, when a more consonant interpretation seems to be well within the legislative intent. It is our duty, if we can, to reconcile the two. Pomeroy, Eq. Jur., 4th Ed., sec. 427; Riggs v. Palmer, 115 N. Y., 506, 22 N. E., 188; Higdon v. Dixon, 150 U. S., 182, 37 L. Ed., 1044; 19 Am. Jur., p. 313.

The power of the court to modify or dissolve its permanent restraining orders, when changed conditions justify it, is fully established. Emergency Hospital v. Stevens, 146 Md., 159, 126 A., 101; Weaver v. Mississippi & R. Boom Co., 30 Minn., 477, 16 N. W., 269; Larson v. Minnesota N. W. Electric R. Co., 136 Minn., 423, 162 N. W., 523; Lowe v. Prospect Hill Cemetery Assn., 75 Neb., 85, 106 N. W., 429 (see 75 Neb., 100, 108 N. W., 478). There is little room for doubt that the injunction, properly granted to plaintiffs for the protection of their rights as they then stood, has, through changed conditions, been controverted into an instrument of oppression, depriving the defendant of that freedom of action, or right, it ought to have, and which the law has sought to preserve to it (United States v. Swift & Co., 286 U. S., 105, 76 L. Ed., 799), and should be dissolved.

Ear more reliable as a guide to the interpretation of this statute is to conceive it in harmonious relation to a public policy which, it is presumed, is intended to embrace the city of High Point as well as all other municipalities of the State, and the necessity of uniformly broad municipal power and a discretion adequate to deal with its public undertakings of this character in all their phases. Idaho Power, etc., Co. v. Bloomquist, 26 Idaho, 222, 141 P., 1083; State v. Kelly, 71 Kansas, 811, 81 P., 450; Jersey City Gaslight Co. v. Consumers Gas Co., 40 N. J. E., 427.

*93It is the policy of the State, fully established by both general and special laws pertinent to the subject, that municipalities shall have the right to acquire, create and conduct facilities for furnishing to their inhabitants electric current for power and light, if they choose to do so, rather than be dependent upon private enterprises for such current; and in doing so to resort to the few sources of hydroelectric power which have not yet been captured and exploited by private concerns. The mere existence of such a power, and its exercise where occasion warrants, has proven the best protection against exorbitant rates and inadequate service. I see no reason why such a policy should be reduced in its scope by hammering down the laws through which it is expressed below their intended level. The result is to lower the standard of municipal government to the leanest output of public service, whereas, modern thought and experience cry out for the richest. If I could bring myself to believe that the extraordinary theories advanced for putting a new meaning into the law are more reliable than what I find written between the caption and the ratifying clause, I might agree that the Legislature has signally failed to include the city of High Point in this program of emancipation.

Not only the city of High Point, but all the cities and towns in the State, depend upon the continuation of this policy for the power and freedom they suppose themselves to have. It is necessary to that conception of public policy that the statute under review be construed as transferring to this municipal board of power commissioners — as by its terms it does — all the powers which were vested in the municipality for the accomplishment of this legitimate and important public purpose. 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 this project, and particularly in its financing, must have been costly and may be fatal. If we can conceive of a race between natural forces and legal proceedings to see which may be in first at the finale, I fear the result would not be predictable. The Yadkin River runs red with the blood of Appalachian giants. The site may be silted up before the controversy is ended. But I am not willing, without a protest, that action should be taken by this Court the result of which would be simply to transfer the controversy to another forum, in which the city with respect to governmental powers and duties in serving its own inhabitants will be put upon an equal footing with a private enterprise in obtaining a certificate of convenience and necessity — a fight in which it would be more than half beaten at the beginning by the outcome of this litigation.

The judgment of the court below should be affirmed.