(dissenting) — It seems to me the majority have found a simple solution of a difficult problem. As I read the act of March 17, 1909, Laws of 1909, page 580, it authorizes cities and towns to condemn plants and facilities for the purpose of furnishing such cities and towns and their inhabitants, and any other persons, with electricity for lighting, heating, fuel, and power purposes, public and private. If the act means what it says, it authorizes cities and towns to exercise the right of eminent domain and condemn property and plants to enable them to generate electricity to be *435sold, distributed, and used for private p.ower purposes, a right this court has repeatedly denied to other corporations. The majority apparently concede this, for they find it necessary to read the word “private” out of the statute. In other words, in order to satisfy one provision of the constitution, they violate another, by usurping powers vested in a different department of the government, viz., the power to make and amend laws. I find no fault with the incidental and subsidiary uses that may be made of electricity generated for public purposes, under the majority opinion, but this is begging the whole question. The private uses are not subsidiary or incidental. The city of Tacoma might sell and dispose of all electricity generated for what this court has heretofore denominated private purposes, and still keep within the provisions of the statute. The word “private” was used in this connection advisedly, for in the earlier part of the same section cities are authorized to operate water works for the purpose of furnishing such cities and the inhabitants thereof, and any other persons, with an ample supply of water for all uses and purposes, public and private, mcludmg water power and other power derived therefrom. In view of these several provisions, I find no justification for the claim that the private uses are merely incidental. If this is the proper construction of the statute — and in my opinion it admits of no other — the entire act is void, because it is left entirely optional with the city whether property acquired by condemnation shall be devoted to a public or a private use. Attorney General v. Eau Claire, 37 Wis. 400, 436; Berrien Springs Water Power Co. v. Berrien Circuit Judge, 133 Mich. 48, 94 N. W. 379, 103 Am. St. 438; State ex rel. Harris v. Superior Court, 42 Wash. 660, 85 Pac. 666, 5 L. R. A. (N. S.) 672.
The judgment should be reversed, with directions to dismiss the action.
Fullerton, Gose, and Dunbar, JJ., concur with Rudkin,. C. J.