Union Ice & Coal Co. v. Town of Ruston

Citation66 So. 262,135 La. 898
Decision Date25 May 1914
Docket Number19895
PartiesUNION ICE & COAL CO. v. TOWN OF RUSTON
CourtSupreme Court of Louisiana

Rehearing Denied October 20, 1914

Barksdale & Barksdale, of Ruston, for appellant.

S. D Pearce and F. W. Price, both of Ruston, for appellee.

O'NIELL J., takes no part.

OPINION

PROVOSTY, J.

The town council of the town of Ruston having adopted an ordinance providing for the purchase and installation of an ice manufacturing plant, to be operated in connection with its water and electric light plant for the production of ice to be sold to the inhabitants of the town, the plaintiff company, and ice-manufacturing company, which had theretofore been furnishing ice to the town, brought this suit, in its quality of a taxpayer, to annul the ordinance, and enjoin its execution.

The ordinance is said by plaintiff to contravene articles 46, 58 227, 263, 270, and 287 of the state Constitution; but, while these grounds are not waived in the argument, they are evidently not insisted on with any great confidence in their merit. The main ground, to which the bulk of the brief of plaintiff is devoted, and to which we shall confine ourselves, is that the cost of said ice-manufacturing plant is proposed to be paid in part out of revenues derived from taxation; and that the power of taxation can be exercised only for public purposes; and that the manufacturing of ice by a town for sale to the inhabitants of the town is not a public purpose.

Act No. 3, p. 128, of 1912, amending act No. 136 of 1898, provides as follows:

'The mayor and board of aldermen of every city and town owning, maintaining and operating either municipal waterworks or electric light system or both shall have the additional power to install, own, maintain and operate in connection with such system, an ice-making plant for the purpose of supplying its inhabitants with ice, and to prescribe the rates at which ice shall be supplied to its inhabitants.'

There is no question, therefore, but that the town had authority to adopt said ordinance, if the conferring of such authority was within the power of the Legislature.

As we understand the argument of the learned counsel for the defendant, it is that the Legislature 'may do everything which the state Constitution does not prohibit.' This is not true. In addition to the limitations contained in the federal and state Constitutions, there are those limitations which inhere in the nature of our form of government; such as that the power of taxation can be validly exercised only for a public purpose. But, for finding this particular limitation, it is not necessary, in this state, to go outside of the Constitution, for its article 224 provides as follows:

'Art. 224. The taxing power may be exercised by the General Assembly for state purposes and by parishes and municipal corporations and public boards, under authority granted to them by the General Assembly, for parish, municipal, and local purposes, strictly public in their nature.'

The several Constitutions of this state prior to that of 1879 contained no restriction upon the taxation power except those of equality and uniformity. The Constitution of 1879 contained many restrictions. The Constitution of 1898 retained them, and added to them this one, that the power should be exercised by municipalities only for purposes 'strictly public in their nature.'

Our question is, therefore, whether the establishment and operation of an ice plant for making ice to be sold to the townspeople is a 'purpose strictly public in its nature.'

It may be well to premise that, in a case such as this, where a municipality is about to contract for an expenditure that will have to be met, in whole or in part, by taxation, the taxpayer who, like the plaintiff in this case, intends to resist the tax, does not have to wait until the tax has been actually imposed, or until his property is being seized to satisfy it, but that he may attack the ordinance itself which authorizes the expenditure to be incurred; indeed, that that is the proper course for him to pursue. As said by the Supreme Court of the United States in Loan Association v. Topeka, 20 Wall. 655, 660, 22 L.Ed. 455-460:

'The validity of a contract which can only be fulfilled by a resort to taxation depends on the power to levy the tax for that purpose.'

So well settled is this that the learned counsel for defendant have not made ay point in that connection. See A. & E. E. of L. vol. 20, p. 1084.

As indicating the public nature of such an enterprise, the learned counsel for defendant adduce the fact (not supported, by the way, by any evidence in the case) that the United States government has established ice plants of this kind for supplying its own needs, not for sale; and that the city of New York is meditating a like undertaking. But, we imagine, no one would contest the right of the town of Ruston to do this same thing if the town were of proper size for such a thing. But Ruston is not a city, nor even a very large town.

The engineer in charge of the town electric light plant testified that an ice plant could be operated very economically in connection with the electric light plant, because it would be run during the day, when the load is off of the electric light plant, and therefore with the same engine and, to some extent, by the same employes, and with no great addition of fuel. But the question in such cases is not whether the thing can be done economically or not, but whether the doing of it falls within the legitimate functions of municipal government. The fact that shoes and ready-made clothing could be manufactured more cheaply by the municipality in connection with its public utilities would not justify the town in going into the shoes and clothes business.

We do not wish to be understood, however, as placing shoes and clothes on a parity with ice in connection with the possibility of their production being, or becoming, a municipal function. While both are to-day on a parity as articles of commerce, there is this difference between them: That the bulkiness of ice renders its being produced locally of greater necessity than is the case with shoes or clothes. Water and light may be -- indeed, are -- articles of commerce in towns unprovided with the modern facilities for furnishing both to the inhabitants more conveniently and economically; but the furnishing of them to the inhabitants of a town is now a well-recognized municipal function. Whether, if it were shown that ice can be produced so cheaply in connection with a town electric light plant as to be classable almost as a by-product, and, as such, be furnished to the inhabitants of the town with incomparably greater convenience and cheapness than by the ordinary mode, a case would not be presented to which the same reasons would in a measure be applicable which justify the furnishing of water and light as municipal functions, we will not undertake to say. Such proof has not been made. Defendant's engineer has merely shown that the production under those conditions would be cheaper; and he admits that he is no expert in the matter, and that much of such information as he possesses on the subject has been derived from interested sources -- from sellers of ice-making machinery.

On the question of what is a public purpose many illuminating passages are to be found in the decisions, from among which we select a few:

In People v. Salem, 20 Mich. 452, 4 Am. Rep. 400, Judge Cooley, speaking for the Supreme Court of Michigan, said:

'But when we examine the power of taxation with a view to ascertain the purposes for which burdens may be imposed upon the public, we perceive at once that necessity is not the governing consideration, and that in many cases it has little or nothing to do with the question presented. Certain objects must of necessity be provided for under this power, but in regard to innumerable other objects for which the state imposes taxes upon its citizens, the question is always one of mere policy, and if the taxes are imposed, it is not because it is absolutely necessary that those objects should be accomplished, but because, on the whole, it is deemed best by the public authorities that they should be. On the other hand, certain things of absolute necessity to civilized society the state is precluded, either by express constitutional provisions or by necessary implication, from providing for at all; and they are left wholly to the fostering care of private enterprise and private liberality. We concede, for instance, that religion is essential, and that without it we should degenerate to barbarism and brutality; yet we prohibit the state from burdening the citizen with its support, and we content ourselves with recognizing and protecting its observance on secular grounds. Certain professions and occupations in life are also essential, but we have no authority to employ the public moneys to induce persons to enter them. The necessity may be pressing, and to supply it may be, in a certain sense, to accomplish a 'public purpose'; but is is not a purpose for which the power of taxation may be employed. The public necessity for an educated and skillful physician in some particular locality may be great and pressing; yet, if the people should be taxed to hire one to locate there, the common voice would exclaim that the public moneys were being devoted to a private purpose. The opening of a new street in a city or village may be of trifling public importance as compared with the location within it of some new business or manufacture; but, while the right to pay out the public funds for the one would be unquestionable, the other, by common consent, is classified as a private interest, which the public can aid as individuals if they...

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