I concur in part and dissent in part.
Mr. Justice Freeboum, speaking for a unanimous court in the case of Sheridan County Electric Co-op, Inc. v. Montana-Dakota Utilities Co., 128 Mont. 84, 270 P.2d 742, said in construing the Bural Electric Cooperative Act, sections 14-501 to 14-531, B.C.M.1947, to determine whether or not the BEA had exclusive rights in rural areas to provide electrical energy: ’ ■
“Under the provisions of this Act the plaintiff has a right to provide electric energy to the designated rural areas. Nowhere in said Act, however, can one find anything which, by express words or by implication, indicates that the Legislature intended to give an exclusive right to plaintiff to furnish electric energy in such rural districts. To the contrary, the plain wording- of B.C.M.1947, § 14-503, indicates the opposite intention and limits the right of plaintiff to provide electric energy, in such rural areas, to certain users, § 14-503 providing: ‘A cooperative shall have power: * * * (d) To generate, manufacture, purchase, acquire, and transmit electric energy, and to distribute, sell, supply and dispose of electric energy in rural areas to its members, to governmental agencies and political subdivisions, and to other persons not in excess of ten per centum (10%) of the number of its members.’
“Had our lawmakers intended that co-operatives should have the exclusive right to furnish electric energy in such' rural areas, and thus prevent competition by other authorized electric public utility, they should have used clear and apt words to so declare. Certainly, no such far reaching right can be left to implication or inference. * * *
“* * * It is also a well-known rule of construction that so long as the language of the statute or ordinance is plain and unambiguous, it is not subject to interpretation or open to construction, but must be accepted and enforced as written.”
We have carefully, for some twenty years followed the dictate of 'this opinion, which in its broadest-sense does not allow *266an REA co-op to compete in a city, where the utility has a franchise to provide electric energy, but does allow such public utility to compete with REA co-ops in rural areas where the public facilities are available.
There has developed in the past few years, with the urbanization of this state, another class of cases where co-op facilities and public utility facilities compete due to the expanding of the city area into what was once clearly a rural area serviced by REA. Though these problem conditions have been obvious for some five years and this court has had to rule on two such cases the legislature has so far failed to provide legislative guidance to meet the problem. Montana Power Co. v. Vigilante Electric Co-op, 143 Mont. 119, 387 P.2d 718; Montana Power Co. v. Park Electric Co-operative, 140 Mont. 293, 371 P.2d 1. This court pointed out in the Park Electric case, supra, that “The public policy declared” by the Legislature fixing the limits of co-operative electric service “is one for the Legislature and not for this court.”
However, concerning the facts presented in this case I view them differently than the majority. As has been pointed out the Peavey Company was located a mile and a half from Lewis-town, in an area serviced both by the REA and the Montana Power Company. Both wanted to provide the service to this new plant so both entered into negotiations for the business. At this point, as I understand the law, they legally could compete for the business. On December 6, 1965, the appellant alleges that the Peavey Company chose the REA and that in addition they joined the cooperative as a member. While the respondent public utility denies this, alleging that the membership card was not delivered until a later date, the fact remains clear that the Peavey Company did join at sometime and a reasonable assumption can be made that they joined when appellant alleges in order to benefit from the rates offered. Too, the appellants’ brief indicates that upon learning this fact the public utility rushed to completion its line finishing on *267December 20th at which time it filed its restraining order preventing the REA from completing its line into the plant to provide Peavey with electric service.
Viewing these facts, and they do not appear to be seriously controverted by the public utility we have a situation on December 20, 1965, where the Peavey Company who was either a member of the Co-op or who had applied for membership but not in possession of a membership card being denied service from the Co-op: Even more seriously do we have what appears to me to be the reverse of the Park County Electric Co-op case, supra.
For these reasons I disagree with the fact-holding of the majority in this case.