ally left to private enterprise, such as public grist mills, storage warehouses, distribution of fuel, etc., can fail to see at a glance that this restriction was adopted for the very purpose of settling that question in this state; of giving constitutional sanction in this state to the principle which, independently of constitutional expression, underlies our form of government, and, as such, had been enforced in other states-that the taxing power can be used only for public purposes.

The framers of this article 224 were familiar with these discussions, and knew that, while there was no disagreement on the point that the taxing power can be legitimately used only for a public purpose, there was great difficulty in ascertaining what was and what was not a public purpose; and to one familiar with the said discussions it is obvious that the peculiar phraseology of this article 224 was adopted with a view to removing that difficulty in this state as far as possible. It was not possible to enumerate what purposes should be held to be public and what not. General language had to be used; and the provision was worded as we find it; that the purpose must be public in its nature, and that it must be so, not merely by taking a liberal or latitudinous view of the matter, or, as some decisions had held, by viewing it in "a liberal spirit" but "strictly" so; i. e.:

"Restrictedly; severely; narrowly or exclusively; rigorously; without latitude; posi tively; with close adherence to rule."

Now, is this business in which the defendant municipality proposes to engage by this ordinance of this strictly public character in its nature?

We think clearly not. The business of manufacturing and selling ice has heretofore been left to private enterprise; as much so [924] as the business of making and selling bread or of any of the articles of household consumption.

The only feature of it that is suggested as likely to impart to it a public character is the growing necessity of ice as an article of household consumption, in modern life; but ice is no more necessary than bread and meat. In fact, this argument of necessity has been so thoroughly pulverized, annihilated, by Judge Cooley in the Salem Case, supra, that the discussion of it here would be mere waste of time. And the argument of cheapness of production comes in the same category and must share the same fate; unless, indeed, as intimated hereinabove by us, under very special circumstances such as are not revealed by the record in this case. Nothing, then, indicates the public nature of this business, and still less its strictly public nature, and the case resolves itself

into the proposition that, in disregard of the said restriction of article 224, the Legislature has undertaken to authorize the municipalities of this state to use the taxing power for a purpose not strictly public in its nature. In such a case the courts are left to choose between the Constitution and the Legislature, and necessarily must obey the Constitution.

In the brief of the defendant, the statement is made that:

"So far as research has been able to disclose, there is only one municipal ice plant in active operation in the United States, and this is in Weatherford, Okla."

The "research" here spoken of is not that of the defendant or of its counsel, but of J. Walls Wentworth, appointed by the president of the borough of Manhattan to gather statistical information on the subject of municipal and government ice plants, "and to extend his research in foreign countries as well as in the United States." This research [925] shows that there are two towns in England-Bolton and Wolverhampton-and several in Italy that manufacture ice for sale, and none other in the world, except the Oklahoma town. Judging from this, any one would unhesitatingly say that the making of ice for sale was not supposed by the world in general to be a municipal function; but that, on the contrary, the consensus of opinion throughout the civilized world was that it was not.

We do not lose sight of the fact that, as well as observed by the Court of Appeals of New York, supra, changed conditions may bring about new purposes for which the taxing power may be legitimately exercised; but ice was being manufactured in cities for sale long before the adoption of the Constitution of 1898, and the need for municipal distribution of ice was at that time just as great and as well known to everybody as now; and hence no changes brought about by new conditions can be invoked in connection with that business.

Not a city or town of the state, except the defendant, has sought to take advantage of this law, so far as we know. And we should not wonder at this lack of interest, if the operation of this law is to be the same in all the towns and cities as is shown in this case it would be the defendant town. The soda water stands are shown to consume a large quantity of ice and to pay but an insignificant amount of taxes. The Rock Island Railroad pays over $3,000 of taxes, approximately one-fourth of the total tax of the town, and consumes but an insignificant amount of ice. The operation of this ice plant scheme would be to make the Rock Island Railroad and other large taxpayers who at the same time are small consumers

[926] of ice pay in part for the ice to be furnished by the town to the small taxpayers who are at the same time large consumers of ice. What would be the operation of this law in the city of New Orleans with its street railways and banks and agencies of all kinds paying heavy taxes and needing no ice save a lump for the water cooler, is easily imagined. The pockets of these large taxpayers would be gone into by the city to enable her to drive out of business and destroy the existing ice companies. The operation of this law is thus referred to as calculated to throw a sidelight upon the question of whether this ice making and selling enterprise by a town or city is or is not a "purpose strictly public in its nature."

For the support of its paupers and indigent sick the municipality may go as deeply as the necessity of the case may require into the pockets of its large taxpayers; but it cannot do so for the purpose of selling ice, or bread, or meat, or drugs, etc., etc., more cheaply to its inhabitants in general than the regular merchants are doing. This would be paternalism pure and simple, a thing foreign to our form of government.

The judgment appealed from is therefore set aside, and it is now ordered, adjudged, and decreed that the ordinance of the town of Ruston No. 120, adopted on October 28, 1912, be, and the same is, hereby decreed to be unconstitutional, null, and void, and is hereby annulled, that an injunction issue enjoining the mayor and board of aldermen of

said town from attempting to carry said ordinance into effect, and that defendant pay the costs of this suit.

O'Niell, J., takes no part.

Rehearing denied October 20, 1914.

NOTE.

Power of Municipality to Operate Plant for Purpose of Furnishing Ice to Inhabitants.

Since the decision in Tolton v. Camilla, 134 Ga. 560, 20 Ann. Cas. 199, which is said in the note thereto to be a case of first impression, no decision other than the reported case seems to have passed on the power of a municipality to operate a plant for the purpose of furnishing ice to its inhabitants. That case, taking a strict view of the nature of municipal functions, reaches a conclusion opposite to that arrived at in Holton v. Camilla, supra, and denies the existence of the power in question. The question was referred to in a concurring opinion in State v. Thompson, 149 Wis. 488, Ann. Cas. 1913C 774, the hold. ing in that case being that a "Home Rule" statute under which it was sought to adopt a charter amendment allowing a municipal ice plant was invalid. The closely related question of the power of a municipality to furnish fuel to its inhabitants is discussed in the note to Laughlin v. Portland, Ann. Cas 1916C 734.