(dissenting).
It is my studied conclusion that the district court erred when it affirmed the Louisiana Public Service Commission’s order sustaining exceptions to the Commission’s jurisdiction and exceptions of no cause of action filed by the defendant electric cooperative. I respectfully dissent from the findings of the majority opinion of this Court and from the majority decree which affirmed the judgment of the district court.
I earnestly believe that due process can only be accomplished herein by the hearing of evidence to determine the correctness vel non of the plaintiffs’ petition. They allege that the defendant cooperative is in truth and in fact a public utility which should be regulated by the Louisiana Public Service Commission. Art. VI, Sec. 4, La.Const, of 1921; cf. LSA-R.S. 45:121. They allege in substance that LSA-R.S. 12:326 does not apply to the defendant electric cooperative.
It is a fact that neither the Commission nor the district court ever reached any consideration of the merits, i. e., whether or not under the facts jurisdiction over this cooperative is vested in the Commission. The point raised is that if, after the hearing of evidence, a finding is made that the defendant cooperative is in truth and in fact a public utility, the Commission would then have jurisdiction. This contention, in my opinion, must be answered.
In brief filed in this Court on October 14, 1968, counsel for plaintiffs give cogent reasons for the overruling of the above exceptions and the remanding of the matter to the district court and ultimately to the Commission for the hearing of evidence. They allege in substance, and I agree with their allegations, that the following should be considered:
(1) The power conferred on the defendant cooperative by its charter;
(2) The adoption of the provisions of LSA-R.S. 12:301 et seq. as the cooperative’s charter, as permitted by LSA-R.S. 12:306 [subd.] C;
(3) The following questions to determine whether or not the defendant cooperative is really a cooperative or a public utility:—
(a) Does it deal with a commodity in which the public is generally held to have an interest?
(b) Will it be in actual or potential competition with other corporation whose business is clothed with public interest?
(c) Is the transmission of electric power by LEC a public purpose ?
*563(d) Will it serve a substantial segment of the public?
(e) Does it propose to accept substantially all requests for service?
(f) May it arbitrarily reject the application for membership of persons in the same position as that of its members ?
(g) Will it acquire and utilize franchises for the service to municipalities of the commodity in which it proposes to deal?
(h) Does it have the right to use public roads and public places for the construction of the facilities needed to distribute the commodity in which it deals?
(i) Does it enjoy the power of eminent domain ?
I am constrained to believe that if, after the hearing of evidence, the facts show that the defendant cooperative is acting in a manner similar to that of a public utility and conducting its business in a similar form, the cooperative, despite its designation as a cooperative, should be subject to the regulation and jurisdiction of the Commission. It is an axiom of the law that no one can do indirectly what he cannot do directly.
It is true that previously we have considered the two cases discussed in the majority opinion and concluded that the matter is one for the Legislature. However, I believe that it is now time for this Court to open the door for a determination as to whether or not there is an. evasion of the laws of this State. If we do not do so, we are encouraging the formation of institutions which will give themselves the name or title of “Cooperative,” and under such name or title engage in unfair competition without experiencing any power of regulation. Reason dictates and justice demands that such institutions should not be allowed to do this.
I respectfully believe that the instant matter should be remanded for the consideration of the facts as above set forth.