specially concurring.
Having concurred in the opinion authored by Justice Johnson, and noting that the Court therein holds that “the summary judgment should not have been granted” to Prairie Power Cooperative, the Court returns the case to the district court to determine “whether Prairie Power was reasonable under all the circumstances.” 118 Idaho at 34, 794 P.2d at 623. I would rather that the Court not insist on keeping the parties in continuing litigation. There is enough in the record to justify this Court in coming to a determination as a matter of law. The controlling case law precedent issued out of this Court thirty-six years ago. Because the error below would have gone unrectified had not Stevenson’s attorney petitioned this Court for a review of the decision of the Court of Appeals, it seems *35appropriate to display the well-drafted supporting brief which was filed in this Court, and which served the purpose of convincing me to write an opinion embodying pertinent portions of that brief. In that manner others might become sufficiently enlightened to grant review for the purpose of straightening out the law, and ascertaining if Stevenson had been dealt with erroneously or unfairly. When Justice McDevitt thereafter concurred in what I was able to put together, other members of the Court did provide a sufficient vote for review. It is believed also that the opinion set out below, which would have issued had review been denied, may serve to illustrate how the review process is initiated and how review is best obtained, which is earning it the old-fashioned way — by a petition and a supporting brief which is both credible and creditable:
BISTLINE, J„ ON DENIAL OF PETITION FOR REVIEW.Today the Court by three votes against two has declined to grant review of the Court of Appeals decision in this case. The rule established by this Court, I.A.R. No. 118(b) provides that the Court will grant review where it appears the Court of Appeals has decided a question of substance not heretofore determined by this Court or where such a question has been resolved but is not in accord with decisions of this Court.
The Court of Appeals states that the present situation is governed by its opinion in First Federal Savings & Loan Association of Twin Falls v. East End Mutual Electric, Ltd., 112 Idaho 762, 735 P.2d 1073 (Ct.App.1987), in which the Court of Appeals accorded to rural electrical cooperatives a lessor degree of intrusion in dealings with members of the cooperatives. Neither party in that case petitioned this Court to review that decision. Accordingly the petition for review now before us requires, at the very least, that we make a cursory review of First Federal.
A short summary and analysis of the First Federal decision is provided in the Court of Appeals’ Stevenson opinion:
We disagree with Stevenson’s contentions. The present situation is governed by our recent opinion in First Federal Savings and Loan Association of Twin Falls v. East End Mutual Electric Co., Ltd., 112 Idaho 762, 735 P.2d 1073 (Ct.App.1987). In that case we considered whether the bylaws of a private electrical co-op may require, as a condition of transferring membership from one person to another, the payment of any delinquency in the outgoing member’s account. In our opinion we noted that, under Idaho law, nonprofit co-ops are not regulated to the same extent as public utilities. Because rural electrical co-ops had been omitted from state regulatory control, we concluded that such organizations merited a lesser degree of public intrusion upon their freedom to contract with their members. We therefore held that the co-op could adopt such a policy, or any other regulations governing membership or the suspension or resumption of services, so long as such restraints were not arbitrary and did not infringe upon a fundamental public policy such as nondiscrimination. Id. at 767, 735 P.2d at 1078.
At 33-34, 794 P.2d at 622-623 (emphasis added). The issue in First Federal, in essence, was whether it is "reasonable" for a co-operative electrical supplier to extort from a new member applicant payment of an old bill owed by a member who had lost both his membership and his real property. It is unfortunate that we were not asked to review First Federal, but fortunately it is now before us.1
Summarily, as has to be the treatment under the circumstances, it is noted that the Court of Appeals observed in First Federal that:
When a charge upon the membership is asserted against an incoming member, it is tantamount to a charge upon the membership certificate. Such charges may be authorized by statute or, as in this case, by contract embodied in the bylaws. PACKEL at 134-35. They are analogous to liens upon shares of stock in business corporations and are binding upon transferees who have actual or constructive notice of them. Id____
This charge, constitutes a restraint upon the right to transfer membership. Indirectly, it also represents a restraint upon the proposed transferee’s right to join the cooperative.
112 Idaho at 765-66, 735 P.2d 1075-76. Directly following the above, the Court of Appeals concluded that "[a] cooperative may promulgate appropriate and reasonable rules governing the admission and conduct of members.” Id at 766, 735 P.2d at 1076 (emphasis added). For that proposition it relied upon three cases, one each from Idaho, Montana, and New Mexico. The Idaho case cited is Sutton v. Hunziker, 75 Idaho 395, 272 P.2d 1012 (1954). Sutton actually states that:
Section 30-1005, I.C., provides that the bylaws of nonprofit cooperative associations may provide, among other things:
1. The number and qualification of members and the terms and conditions of admission.
2. The time, mode, conditions and effect of expulsion or withdrawal from and of restoration to membership.
6. Other regulations not repugnant to the laws of the state and consonant with the objects of the association.
75 Idaho at 402, 272 P.2d at 1019. There is no time to review the other two cases, but it will be *36assumed that language therein does support the proposition asserted. We are only now asked to do one thing, which is not to redecide the case, but to grant review. It may be of some benefit to the three members of the Court voting "no review” that their attention be brought to a portion of the brief submitted to us by Mr. Arkoosh:
The Montana Supreme Court, citing Sutton v. Hunziker from this Court, is explicit in this rationale:
While it is true that the member is bound by this agreement, the articles, by-laws, rules and regulations of the cooperative must be reasonable. Sutton, supra; Smith v. Pickwick Electric Cooperative, (1963), 212 Tenn. 62, 367 S.W.2d 755 [775]. Cooperatives hold a favored position in the law. In Montana, rural electric cooperatives have limited powers of eminent domain, Section 35-18-106(8), MCA; and are exempt from Montana tax laws, Section 35-18-503, MCA. Conversely, cooperative members are often in a disadvantageous position with respect to the cooperative, as they are in rural areas which are less likely to be serviced by a public utility and must rely on the cooperative for power. In dealing with the unreasonable rule, a member has the option of either attempting to amend the adopted rule or to discontinue service, both of which are inadequate remedies. This inadequacy is exacerbated by the circumstances in the present case where the member's residence is already connected with the cooperative and finding the alternative supply of electricity would be quite costly. This disparity between the relative positions gives rise to an obligation on the part of the Cooperative to deal in a reasonable manner with its members. The Cooperative may not foist either unreasonable rules or interpretations of rules on its members simply because they have agreed to be bound by the actions taken by the governing body. The adoption and implementation of all rules must be done fairly and in a reasonable manner with proper regard for the rights of the member and his property.
[Emphasis supplied.] Howe v. Big Horn Electric Cooperative, Inc., [206 Mont. 297] 670 P.2d 936, 937 (Mont.1983).
The Idaho Court of Appeals in the instant action has declined to impose a reasonableness requirement upon a cooperative because such a requirement is not statutory. This conclusion ignores that the reasonableness requirement imposed by statute upon public utilities and the reasonableness requirement imposed by common law upon cooperatives emanate from exactly the same common law source as spelled out in Munn v. Illinois 94 U.S. 113 [24 L.Ed. 77] (1877). It is respectfully submitted that it is the duty of the courts to vitalize common law rights which have not been codified rather than eradicate them because they have not.
Appellant’s Brief filed in Court of Appeals Case Nos. 17255, 17327, and 17350, at 10.
The First Federal opinion does cite two cases from Mississippi, and one each from Ohio and Oklahoma for the further proposition that ”[s]uch restraints are enforceable unless they are arbitrary or contrary to public policy.” 112 Idaho at 766, 735 P.2d at 1076. The well-written opinion proceeds on to its conclusion:
Accordingly, we hold that such a charge may be imposed, pursuant to duly promulgated bylaws of an unregulated, private, nonprofit cooperative, as a condition of transferring an interest in the cooperative to a prospective new member who has notice that the charge must be paid before service will be furnished. We have not been cited, nor have we found, cases contrary to this precise holding.
112 Idaho at 767, 735 P.2d at 1077. Judge Meehl’s district court decision was accordingly reversed.
However, although the Court of Appeals declared that it could find no cases contrary to its ultimate precise holding, it had found one, and cited it as well, but inadvertently was not aware of all that was involved therein:
Prior to 1946, respondent built and developed a resort on Priest Lake in Bonner County. In the fall of 1946 and spring of 1947, Northern Lights, Inc., a corporation, constructed a power line from Paul Jones Beach on Priest Lake to the resort of respondent for the purpose of supplying electricity to respondent and other patrons. The line was connected with respondent’s store and extended to cabins beyond the store. It was an overhead power line.
In the year 1947, respondent commenced to build an airport on his resort with a runway lying between his store and the cabins. Respondent thereafter demanded that the overhead power line be taken down between the store and the cabins as it interfered with his airport. It was discovered that the road along which such line was built was a private road and that Northern Lights, Inc., did not have a right of way. Respondent offered an easement for an underground right of way but refused to pay any of the expense of changing the line. The company demanded an easement for an unrestricted right of way and refused to put the line underground unless respondent paid the expense thereof.
After considerable ineffectual negotiation, the Board of Directors of Northern Lights, Inc., on May 16, 1950, passed a resolution in effect directing its manager to cut off the electric service to respondent’s resort unless respondent executed an unrestricted easement for a power line across his property. Respondent refused to execute such easement, and in accordance with such resolution, the manager of the company, on or about July 1, 1950, cut off the lights and power serving respondent’s resort. Thereafter, respondent applied for and was granted an alternative writ of mandamus requiring the company to reconnect the electricity to respondent’s resort and to furnish the same service as had been theretofore furnished. After hearing, such writ of mandamus was made permanent. No appeal was taken and the company complied with the writ.
Sutton, 75 Idaho at 398, 272 P.2d at 1015 (1954).
The Sutton opinion resulted from a tort action entirely separate from the mandamus action. In *37the tort action, damages were sought for the wrongful disconnect. The Supreme Court stated:
The real issue in this case in this connection is whether the demand by the Northern Lights, Inc., for an unrestricted easement, whereby it could erect an overhead power line, or in the alternative for an easement for an underground line with payment by respondent of the additional cost thereof, was a reasonable request under all the circumstances shown by the evidence. If such request was unreasonable, respondent was justified in refusing to comply with same and the disconnection of his electric service was wrongful.
Instruction No. 1 took this question of fact from the jury and [hence] was erroneous and prejudicial.
Sutton, 75 Idaho at 403, 272 P.2d at 1020. In Stevenson the district court took the same question of fact from the jury. The Sutton case is clearly applicable to the case we are asked to review today, where the underlying issue is the validity of a summary judgment of dismissal, which the Court of Appeals affirmed. The Sutton case did impose upon electrical cooperatives a requirement of reasonableness: “If such request was unreasonable, respondent was justified in refusing to comply with same and the disconnection of his electric service was wrongful,” 75 Idaho at 403, 272 P.2d at 1020. Contrary to the Court of Appeals decision in the instant case, the question of whether the policy was reasonable is a factual determination for the jury.
It readily follows that the judgment of the district court in Stevenson was highly questionable. It would seem logical that had the district court, and in turn the Court of Appeals, recognized the "real issue” in these consolidated cases, it would have accorded Sutton stare decisis application; and likewise considered the Montana case which relied on Sutton. The Court’s denial of review presents the trial bench and bar with a bit of an enigma. Sutton is established case precedent of thirty-five years adopting the requirement of reasonableness.
McDEVITT, J., concurs.. Alas, however, it returns at a time when this Court, as is true with the Court of Appeals, is deluged with a substantial increase in workload, and with this Court especially deluged by a large number of rearguments and reconsiderations of cases which had been heard but not decided at the time the Court was suddenly reduced to three members.