I recognize that the proper disposition of the question at issue in this case is not free from doubt. Because of this uncertainty, it is with hesitation that I dissent from the ruling of the majority. However, I regard the ordinance in question as valid, and for this reason dissent, briefly stating the ground thereof.
The appellees are dealers in ice and desirous of purchasing ice manufactured in the city of Juarez, republic of Mexico, and marketing the same in the city of El Paso. The ice manufactured in Juarez is made from raw water. The record discloses that ice is a suitable agent to transmit the germs of typhoid fever and other diseases. It requires forty-eight hours to test ice for contamination. Within the city of El Paso the water, from which raw-water ice is manufactured, is tested by the city health department at intervals of not more than two weeks, and, when colon bacteria show up, prompt steps are taken to correct it. As a practical matter, it is impossible to test for contamination ice brought into the city from beyond its limits, for it takes forty-eight hours to make the test, and, if ice be held for that length of time at the city gates, it will melt. Distillation of the water from which ice is manufactured gives the assurance that it is free from contamination by disease-carrying germs. The city of El Paso has no way of enforcing periodic and proper inspection of the wells in Juarez from which the ice is manufactured which the appellees desire to market in El Paso.
Confronted with this situation, and resting under the obligation to protect the life and health of the residents of El Paso, the city passed the ordinance in question. The effect of this ordinance is to prohibit the sale within the city of ice manufactured outside the city of raw water.
In my opinion Adams v. Milwaukee, 228 U.S. 572, 33 S.Ct. 610,57 L.Ed. 971, supports the view that the ordinance in question is a reasonable regulation to safeguard the life and health of the citizens of El Paso, against the danger of ice manufactured outside the city, from impure raw water. The ordinance is, therefore, a proper exercise of the police power, and valid.
I, therefore, dissent from the ruling of the majority.