dissenting: The majority opinion holds that form governs substance and that incidental powers override basic limitations. I cannot subscribe to this. It would permit this nonprofit cooperative to own, operate, and derive profit from any or all the electric public utilities in the state by ownership of all their stock. The petitioners admitted, and it is concededly the law which the majority opinion does not deny, that the cooperative could not legally purchase outright the physical assets of the White Mountain Power Company and serve the customers of that concern. Yet the opinion allows the cooperative to own and control all these same physical assets and serve all the same customers by ownership of all the stock of the power company. If this is sound doctrine there is no legal obstacle to this non-profit cooperative owning and controlling all the electric power utilities in the state. I do not believe the Legislature intended this.
The opinion reaches this result by holding, first, that the incidental power to own stock granted by R. L., c. 273, ss. 3, 53, controls the limitations on the powers of the cooperative stated in the section which created it. R. L., c. 273, s. 52,1. Second, it says that, since no improper object is sought by this method for obtaining control over the power company the corporate fiction must be upheld, and the fact that actually the cooperative owns all the physical assets of the company and serves all its customers must be ignored. Not only does this upholding of the fiction that a corporation is a being independent of those who are associated as its stockholders run contrary to our law (Sunapee Dam Company v. Alexander, 87 N. H. 397, 401), but the proposition as a whole misconceives the vital issue of legislative intent. I shall not attempt to read the legislative mind of more than a decade ago, as does the majority opinion, to the extent of deciding what all its objectives were when it passed this law. However, the *154act is headed “Associations for Rural Electrification” and it limits, for the purposes of this case, service by the cooperative to outsiders not in excess of 10% of its membership, and to those not receiving central station service on June 16, 1939. I am unable to believe that this authorizes or was intended to authorize this nonprofit cooperative to take over any or all electric public utility businesses in New Hampshire and in reality to engage in the business of making profits.
The majority recognize that their opinion paves the way for complete State or more likely Federal control over all our utilities. They say this is a matter for the Legislature and not for the court to decide. I agree with them. They go on to say, in effect, that the Legislature has decided that by such means as used here the cooperative or its backer the Federal Government may gain ownership and control of property which admittedly it could not otherwise lawfully obtain. I do not believe the Legislature has so decided. I would therefore answer no to the certified question which I agree is properly before us.
Lampeón, J., authorized me to say that he concurs in this dissenting opinion.