(dissenting) — I do not share the majority view that it is clear the legislature in enacting Code section 98.36(6) had in mind only the prohibition in section 98.2 against sale of cigarettes to minors.
Nor do I agree “the legislature by using the term ‘vending machine’ clearly referred to the wholly automatic type of machine.”
Section 98.36(6) provides: “It shall be unlawful to sell or vend cigarettes by means of a device known as a vending machine.” I find nothing doubtful or obscure in meaning in this language. If the legislature clearly referred only to the *695wholly automatic type of machine it is our duty to assume it would have added to the enactment such words as “of the wholly automatic type.” It is not our function to add them to the statute, as the majority does.
We have repeatedly held we have no power to write into a statute words not there. Eysink v. Board of Supervisors, 229 Iowa 1240, 1244, 1245, 296 N.W. 376, 378, and citations; Iowa Public Serv. Co. v. Rhode, 230 Iowa 751, 754, 298 N.W. 794, 796; Dingman v. City of Council Bluffs, 249 Iowa 1121, 1126, 90 N.W.2d 742, 746; Cowman v. Hansen, 250 Iowa 358, 362, 363, 92 N.W.2d 682, 684.
Our Reports are replete with statements such as this from In re Guardianship of Wiley, 239 Iowa 1225, 1231, 1232, 34 N.W.2d 593, 596:
“As we have indicated, the intent of the legislature which is controlling here is to be gathered from the statute itself. It is our duty to give this act the interpretation its language calls for and not to speculate as to probable legislative intent apart from the wording used [citations].
“The much quoted admonition of the late Justice Oliver Wendell Holmes may be repeated here: ‘We do not inquire what the legislature meant. We ask only what the statute means.’ ”
Young v. O’Keefe, 246 Iowa 1182, 1188, 69 N.W.2d 534, 538, expresses substantially the same thought in this way: “* * * when we say we are seeking the intent of the legislature we are in fact seeking its intent only as expressed by its language. We cannot ascribe to it an assumed or imagined intention or purpose not so expressed, nor can we substitute for its express intention one we deem more desirable or appropriate to changed conditions.”
Shelby County Myrtue Memorial Hospital v. Harrison County, 249 Iowa 146, 151, 86 N.W.2d 104, 108, is more concise in stating the same proposition: “The question is not what the legislature should have said, or what it might have intended to say, but what it did say [citations].”
Later precedents to like effect include Lever Brothers Co. v. Erbe, 249 Iowa 454, 469, 87 N.W.2d 469, 479; Cook v. Born*696holdt, 250 Iowa 696, 698, 95 N.W.2d 749, 751; Ashby v. School Township of Liberty, 250 Iowa 1201, 1214, 98 N.W.2d 848, 857.
I think the two machines here involved fall within the statutory words “vending machine.” The trial court apparently thought so too, since the injunction granted by it, which the majority affirms, is conditioned upon location of the control unit so only the proprietor or his employees have access to it. If such unit is located so the customer had access to it (as could easily be done), these machines would be vending machines even under the view of the trial court and the majority.
Plaintiffs argue that if section 98.36(6) prohibits sale of cigarettes by means of a vending machine with remote control requiring human intervention it is discriminatory and lacks due process, in violation of sections 6 and 9, Article I, Iowa Constitution, and the 14th Amendment to the Federal Constitution. I think the statute, if given the meaning its language calls for, is a valid exercise of the police power and does not violate any of these constitutional provisions.
Plaintiffs concede the legislature could, within constitutional limits, prohibit sale of cigarettes to minors through an automatic vending machine. I think the legislature has the power to prevent sale of cigarettes to anyone by means of a vending machine.
It is plaintiffs’ “burden to negative every conceivable basis which may support this statute. All presumptions are in favor of the constitutionality of the statute and it will not be held invalid unless it is clear, plain and palpable that such a decision is required [citations].” State ex rel. Cairy v. Iowa Co-Op Assn., 250 Iowa 839, 843, 95 N.W.2d 441, 443. Decisions to like effect include Steinberg-Baum & Co. v. Countryman, 247 Iowa 923, 929, 77 N.W.2d 15, 18, and citations; Faber v. Loveless, 249 Iowa 593, 597, 88 N.W.2d 112, 114. See also State v. Di Paglia, 247 Iowa 79, 85, 71 N.W.2d 601, 604, 49 A. L. R.2d 1223.
The legislature conceivably may have reasoned from evidence it deemed convincing that the use of cigarettes, especially excessive use, is harmful to the health of adults as well as minors; that the sale of cigarettes by means of vending ma*697chines would stimulate their sale and use; and it would promote the public health to prohibit this means of selling cigarettes.
Certainly anything the legislature honestly feels would be apt to promote the public health is a legitimate exercise of the police power. If the legislature, as it might have done, reasoned as above suggested, the statute is not to be held unconstitutional merely because we may think it acted unwisely. But there is no showing such reasoning would even be unwise. On the contrary, its wisdom is attested by plaintiffs’ argument that one retailer converted his loss _from the sale of cigarettes into a profit of $1500 per year by use of a vending machine in question here, that they are attractive pieces of paraphernalia which add to the appearance of a place of business and “may even have some advertising value in calling attention to the availability of cigarettes on the premises.”
I would reverse.
Bliss, Oliver and Thompson, JJ., join in this dissent.