#### J. P. WILLIAMSON et al. v. CITY OF HIGH POINT et al.

(Filed 4 January, 1939.)

1. Contempt of Court § 5—

Upon the hearing of an order to show cause why defendant should not be held in contempt for violation of a decree of court, the sole question before the court is whether the decree has been violated, and the court correctly disregards defendant’s prayer for modification of the decree.

*6942. Contempt of Court § 2b — Finding that defendant’s second undertaking was materially different from one restrained held to support order discharging rule for contempt.

Final decree was entered restraining a municipality from constructing “the proposed power plant and electric system” described in the complaint, or doing any act in furtherance thereof, the basis of the decree being that the proposed plant was ultra vires the city. Thereafter the council of the city passed a resolution authorizing the construction of a power plant on the same site as originally proposed, and this contempt proceeding was instituted. Defendant alleged and the court found that the second proposed plant differed materially from the first in “purpose of construction, productive capacity, and important physical features.” Reid,: The allegations and findings of dissimilarity between the two undertakings supports the action of the court in discharging the rule for contempt.

Appeal by intervening plaintiff, Duke Power Company, from Bivens, J., at May Term, 1938, of Guileobd.

Proceeding in civil contempt for violation of injunction.

Tbe facts are these :

1. Final judgment on tbe certificate and opinion of tbe Supreme Court (reported in 213 N. C., 96) was entered at tbe February Term, 1938, Guilford Superior Court, permanently enjoining and restraining tbe defendants “from constructing tbe proposed power plant and electric system described in tbe intervening plaintiff’s complaint filed herein, and from issuing tbe proposed bonds or doing any other act or thing in furtherance of tbe construction of said power plant and electric system.”

2. Thereafter, on 27 April, 1938, tbe council of tbe city of High Point passed a resolution authorizing tbe construction of a hydroelectric light and power plant by tbe city of High Point on tbe same site as originally proposed, but differing materially in respect of “purpose of construction, productive capacity, and important physical features,” from tbe proposed power plant and electric system described in tbe intervening plaintiff’s complaint filed herein.

3. On tbe same day, tbe plaintiff, J. P. Williamson, deeming said resolution to be in violation of tbe injunction and final decree entered herein, called tbe matter to tbe attention of tbe court by affidavit “for such action as tbe court may deem proper in tbe premises.”

4. Upon this affidavit, a rule to show cause was entered and duly served on tbe defendants.

5. Tbe defendants answered, denied any violation of tbe injunction, and alleged that tbe resolution of 27 April, 1938, authorizing tbe construction of an electric light and power plant for tbe defendant city “is for a new and altogether different project from tbe one referred to in said final decree.” They asked that tbe rule be discharged and that “tbe *695decree of tbe Superior Court entered at tbe February 7, 1938, Term of court be modified so as to reflect tbe true facts as they now exist.”

6. To this answer, tbe intervening plaintiff replied, denied tbe power of tbe court to bear tbe matters set out by tbe defendants, and prayed for an appropriate order to enforce tbe decree previously entered.

Tbe court found tbe facts as contended for by tbe defendants, adjudged each of tbe defendants not guilty of contempt, and dismissed tbe writ.

Tbe intervening plaintiff, Duke Power Company, appeals, assigning errors.

Roberson, Haworth & Reese, W. B. McGuire, Jr., and W. 8. O’B. Robinson, Jr., for intervening plaintiff, appellant.

G. H. Jones and Roy L. Deal for defendants, appellees.

Stacy, C. J.

Tbe position of appellant that tbe court was without authority to modify tbe decree entered at tbe February Term is correct. Yerys v. Ins. Co., 210 N. C., 442, 187 S. E., 583; Southerland v. R. R., 148 N. C., 442, 62 S. E., 517; 32 C. J., 506. Tbe basis for tbe final decree was, that tbe original undertaking “goes far beyond tbe powers conferred by tbe Eevenue Bond Act of 1935, and is ultra vires." But as we understand tbe record, tbe defendants’ prayer to this effect was disregarded, and rightly so.

Tbe sole question before tbe Court was whether tbe final decree entered at tbe February Term has been violated. Bacon v. Onset Bay Grove Assn., 286 Mass., 487, 190 N. E., 713; Barrone v. Moseley, 144 Ky., 294, 137 S. W., 1048. Tbe allegation and finding of dissimilarity between tbe two undertakings appears sufficient to support tbe action of tbe court in discharging tbe rule for contempt. This is tbe only question presented by tbe appeal.

Adequate cause for disturbing tbe judgment and entering one in favor of appellant has not been made to appear on tbe present record.

Affirmed.