Caddo Electric Cooperative v. State Ex Rel. Whelan , 1964 Okla. LEXIS 303 ( 1964 )

JACKSON, Justice

(concurring specially)-

In State ex rel. Southwestern Gas & Elec. Co. v. Upshur Rural Electric Co-Operative (1957), 156 Tex. 633, 298 S.W.2d 805, it was pointed out that the Texas statute provided that (1) an inhabitant or person receiving central station service may not become a member; and (2) one living in a town or city having in excess of 1500 people may not become a member. Under the Texas statute items numbered (1) and (2) are not limitations upon the Cooperative but limitations upon who may become a member.

Our statute, 18 O.S.1961 § 437.7, does not contain the limitations upon membership which were present in the Texas case, and numbered (1) and (2), supra. The limitations imposed upon membership in an Electric Cooperative in Oklahoma is that “No person who is not an incorporator shall become a member of a cooperative unless such person shall agree to use electric energy * * * when such electric energy shall be available through its facilities.”

In Pee Dee Electric Membership Corp. v. Carolina Power & Light Co., et al. 1961), 253 N.C. 610, 117 S.E.2d 764, that court followed the holding in State ex rel. Southwestern Gas, & Elec. Co. v. Upshur Rural Electric, supra, apparently without noticing that under their statute the only limitation upon membership was that “no person shall become or remain a member unless such person shall use energy supplied by such corporation.”

The Georgia case of City of Moultrie et al. v. Colquitt County R. E. Co. (1955), 211 Ga. 842, 89 S.E.2d 657, deals with a cooperative which had placed a temporary line into an area to assist the developer. At the time of annexation it had no permanent electrical installations in the area. The court correctly held that it had acquired no “property rights” in the annexed area and that it had no grounds for equitable relief. It seems clear that the CoOperative in the Georgia case had not acquired a “vested right” resulting from the construction of permanent electrical installations into the area prior to annexation.

I find nothing in our statute which forbids the addition of new members, after annexation, to a distribution line which was constructed prior to annexation. Unless the statute does forbid, then it seems to me that the Cooperative in the instant case acquired a vested right to use its pre-annexation distribution lines to load capacity by adding--new “drops”, transformers, and meters after annexation. See in this connection City of Beverly Hills v. City of Los Angeles (1917), 175 Cal. 311, 165 P. 924, wherein the City of Los Angeles was permitted to complete its previously projected water line through the unincorporated territory of Beverly Hills although not constructed prior to the incorporation of Beverly Hills as a municipality. See also the Indian Territory case of Muskogee National Telephone Co. v. Hall (1901), 4 Ind.T. 18, 64 S.W. 600.

I would hold that the Cooperative may add new “drops”, transformers, and meters for serving new members who may apply for service from distribution lines which were constructed prior to annexation.

I am authorized to state that IRWIN, J., concurs with the views herein expressed.