dissenting. I can not agree with the opinion of the majority in this case. The trial court was authorized to find from the evidence that Colquitt County Rural Electric Company had for a number of years been serving electricity to East Moultrie Heights subdivision, which was outside the city limits of Moultrie; that blocks 6, 7, and 8 in section 2 were a part of this subdivision; that recently the said electric company placed poles and lines in blocks 6, 7, and 8 and were serving contractors and owners of property with electricity for the purpose of constructing homes; that contracts had been made with certain owners in said blocks for the purpose of furnishing electricity to the new homes being constructed; that, after all this had been done, the City of Moultrie had by ordinance, as provided by law, extended its city limits so as to take into the city limits of Moultrie said blocks 6, 7, and 8 of said subdivision. The City of Moultrie then arrested the employees of the electric company engaged in wiring the houses and stringing lines to the houses and advised them to the effect that they would be arrested and placed in jail every time they entered upon the property in question for the purpose of providing electricity.
The controlling question here presented is, when a rural electric company enters a territory that is clearly rural at the time, and thereafter the territory is taken into the limits of a city, what are the rights of the city and the rural electric company as to providing electricity to customers in the territory involved? Neither Federal nor State law deals specifically with this question. It therefore becomes the duty of a court of equity to fill in the vacuum created by the law and do justice and equity to all parties concerned.
The Congress of the United States, by the Rural Electrification Act of 1936 (7 U. S. C. A. 547, § 902) attempted to make electricity available to people in rural areas who could not otherwise be served. It was provided that co-operative, non-profit electric membership corporations organized under the laws of any *855State or territory of the United States could borrow money from the United States Government for the purpose of the construction and operation of self-liquidating electric systems furnishing current to persons in rural areas, and the defendant in error here was such a system. The administrator, however, was required to find and certify that in his judgment the security for the loan was reasonably adequate, and that such loans would be repaid within the time agreed. It must be noted here that, when these loans are fully repaid, these membership corporations become private corporations in every sense of the word.
The case of Cobb County Rural Electric Membership Corporation v. Board of Lights, 211 Ga. 535 (87 S. E. 2d 80), does not answer the question here presented. In that case the rural electric company sought to enjoin the City of Marietta from furnishing electric service to anyone in the territory in question, thereby giving the rural electric company.a monopoly in so far as that particular territory was concerned. In the instant case, the rural electric company simply seeks to enj oin the City of Moultrie from preventing it from carrying out the contracts it may have with its customers. -The trial judge in the instant case in his judgment expressly preserved the right of the City' of Moultrie to seek customers in the territory involved, thus leaving the territory open as a territory in which the City of Moultrie and the rural electric company could compete for customers.
We look to see what would be the result of any other holding by this court. It would simply mean that, when the rural electric company has entered a territory not profitable enough to attract cities or private companies, and has developed the area with money furnished by the Federal Government to these non-profit companies to a point that it has become profitable, their business could be gradually taken from them and all chance of ever repaying the Federal Government would be gone. This result does not sound like equity to the writer. It would also mean that the Congress of the United States in creating the Rural Electrification Authority planted the germ in the legislation that would mean its ultimate destruction. Even in these fast-moving, modern times I do not believe it was the intention of the Congress to play with the taxpayers’ money in this fast and loose manner.
The territory here involved was clearly rural when entered *856into by the rural electric company, and when taken into the city, the city did so with full knowledge that the rural electric company was operating in the territory. It seems to me that the judgment of the trial court, leaving both parties to operate in this particular territory on a free competitive basis, is the only judgment that could have provided equity for all parties concerned. It is my opinion that courts should encourage and not prevent competition.
In addition to what has been said above, it appears from a reading of the Electric Membership Act (Ga. L. 1937, p. 644) that the terms of the act settle the question here presented. Section 2 of the act defines various terms used in the act, and division 8 of this section reads as follows: “ 'Rural Area’ means any area not included within the boundaries of any incorporated or unincorporated city, town, or village, having a population in excess of 1,500 inhabitants, according to the last Federal census, and includes both the farm and non-farm population.” It will be noted that the General Assembly in defining “Rural area” tied it down to the population according to the census of 1930. This being true, under the very terms of the act itself, the territory here in question is now a “rural area” as that term is defined in the act, supra. This could have been done by the General Assembly for no other reason than to prevent co-operative, nonprofit electric companies from being pushed out of territory they had developed, just as is sought to be done in this case.
I am authorized to say that Candíer, Justice, concurs in this dissent.