¶1(dissenting) — Initiative measure No. 3 prescribes in plain, unambiguous and mandatory terms that, *10with certain specially enumerated exceptions, “It shall be unlawful for any person to have in his possession more than one-half gallon or two quarts of intoxicating liquor other than beer, or more than twelve quarts or twenty-four pints of beer.” In the foregoing opinion the majority hold that this provision of the statute, notwithstanding its mandatory language, does not prohibit a person, whether of the excepted class or not, from having in his possession liquor or beer in excess of the designated quantity, provided the liquor or beer was acquired lawfully, either before or after the passage of the statute, and is not held or kept for the purposes of unlawful sale or distribution. With this conclusion I cannot agree.
¶2As I understand the opinion, the grounds on which the conclusion is rested are these: first, that to give effect to this particular section of the statute as written would be contrary to the intent and purpose of the statute taken as a whole; and second, that certain later sections of the statute which “provide a rule of evidence” are in conflict with the literal terms of this section, and to give effect to them require an interpretation of this section contrary to its literal reading. Perhaps, also, there is a third reason, although it is not specially dwelt upon, namely, that to give the provision effect according to its literal reading would contravene the fundamental rights of the individual.
¶3In arguing in favor of the first proposition, the majority review the several provisions of the statute and conclude therefrom that, “It is perfectly plain that this act was passed for the purpose of preventing the sale of or barter in intoxicating liquors within the state”; and that, “The whole purpose of the act, as disclosed by the act itself, is to prevent the barter and sale of intoxicating liquors within the state.” For the purposes of the present inquiry this may be conceded to be a correct interpretation of the statute, although I think, since the very quotations made from it by the majority show that the barter and sale of intoxicating *11liquors in the state is neither prohibited nor “prevented,” but is only restricted, one might with some assurance express a doubt as to its correctness. But conceding this to be the whole or sole purpose of the statute, I cannot see how it in any way leads to the conclusion deduced therefrom. In my mind, to limit the quantity of intoxicating liquor any single individual may have in possession at any one time is in no way incongruous with the idea of preventing the barter and sale of such liquor. On the contrary, its seems to me that such a limitation promotes rather than retards that purpose. For, surely, one whose right of possession is of a limited quantity of liquor is less likely to engage in its illicit barter and sale than would be his likelihood were his right of possession unlimited.
¶4The second reason given violates one of the most ordinary rules of statutory construction. It is the rule undoubtedly that a mandatory provision in one section of a statute is superseded by a conflicting mandatory provision in a later section of the same statute, but the rule has no application to subsequent sections of the same statute which merely provide “a rule of evidence” which relate only to trials had in the enforcement of the mandatory provision. The rules of evidence are enacted to aid in the enforcement of the mandatory provision, not for the purpose of destroying it, and when the two conflict the rules give way, not the mandatory provision. In the construction given the statute by the majority they have reversed the principle by allowing the “rule of evidence,” intended to carry the mandatory provision into effect, to control the mandatory provision.
¶5Again, I think the provisions of § 28, cited by the majority to sustain their conclusion, is directly contrary to the conclusion reached. By this section it is provided that every person except a registered druggist or pharmacist shall remove or cause to be removed from the state all intoxicating liquors in his possession within ten days after the statute becomes operative; excepting from the requirement only al*12cohol kept for chemical or manufacturing purposes, and the one-half gallon of intoxicating liquor other than beer, or twelve quarts or twenty-four pints of beer held by an individual. If it was the intent to permit an individual to have in possession liquor in excess of the designated quantity, I can see no purpose in this requirement, or purpose in the exception to the requirement. Seemingly, if it was not the intention to make the having in possession of an excess quantity of liquor unlawful it was nonsense to require it to be shipped away. It has been suggested, I know, that this was intended to grant a privilege only — to enable persons having an excess quantity to reduce it down to the restricted quantity so as to be freed from the burden of accounting for the excess. But if this were the purpose I think some other form of words would have been used to express the idea. At any rate, positive mandatory language is not usually used for that purpose.
¶6The majority further say that neither this section nor the section especially under consideration has any application to liquor “lawfully acquired.” But to this it is a sufficient answer to say that the statute does not itself make the distinction. It applies in terms to all liquor, no matter how or when acquired, and to read the exception into the statute is to legislate, not to construe. More than this, the conclusion carries with it the idea that there was in the possession of individuals, at the time the statute became operative, liquors unlawfully acquired. To this it is sufficient to say there is nothing in the present record which would justify the conclusion, and that I am not aware that the fact was of such notoriety as to enable the court to notice it judicially.
¶7The third reason assigned is of some moment, and is worthy of a more extended consideration than the majority gave to it. Nevertheless I cannot think it sound. It is among the undoubted powers of legislation to regulate, restrict or prohibit traffic in, or even the use of, intoxicating liquors, and I see no reason why this power does not extend *13to limiting the quantity a single individual may have in possession at any one time.
¶8In the foregoing I have given only an outline of my reasons for dissenting from the conclusion of the majority. I should not have done as much as this but for the far-reaching effect of the decision. It is going to make convictions of violators of the law all but impossible, and it renders inoperative the so-called permit section of the statute, the section which limits the quantity of liquor or beer that an individual is permitted to ship into the state at any one time. This because of the provision of the Federal statute known as the Webb-Kenyon Act, the statute which authorizes the interference by states with interstate commerce in intoxicating liquors. By the terms of that act, such shipments can only be prohibited when the person making the shipment intends that they shall be possessed, sold or used in violation of the law of the state wherein they are received. Since the majority hold that possession in excess of the restricted quantity is not unlawful, it follows that to refuse to permit shipments in excess of the restricted quantity is an unlawful interference with interstate commerce. This is not my individual view. It has been expressly so held by the controlling authority on the question. See, Adams Express Co. v. Kentucky, 238 U. S. 190, Ann. Cas. 1915 D. 1167.
¶9In my opinion, the judgment appealed from should be affirmed.
¶10On Petition for Rehearing.
¶11lEn Banc. August 19, 1916.]
¶12A petition for rehearing has been filed herein in which the prosecuting attorney of King county, joined in by the prosecuting attorneys of fifteen other counties, ask the court to clarify the situation as to the effect of the opinion upon liquors obtained subsequent to January 1, 1916, either by granting a rehearing or by supplemental opinion.
¶13*14It is evident from the public comment upon this decision that it has been greatly misinterpreted and misunderstood. The prominent idea in the petition seems to be that the opinion may be construed as destroying the force of Laws 1915, p. 14, § 22 (Rem. 1915 Code, § 6262-22), providing that it shall be unlawful for any person to have in his possession more than one-half gallon of intoxicating liquor, or more than twelve quarts or twenty-four pints of beer. The petition is frank in stating that a reading of the opinion would seem to indicate that the court is speaking only of liquor lawfully obtained prior to January 1, 1916, and held for lawful use. The petition says, “Certain portions of the opinion show that this idea was predominant in the court’s mind” and “we believe that the court intended to go no further than to hold that § 22 does not make unlawful possession of liquor acquired before January 1st . . .”
¶14If the prosecuting attorneys can easily gather the “predominant” idea of the opinion and the class of liquors the court had in mind, it ought not to be necessary to add to what has been said, and we would not do so except for the gi*eat public interest involved in the proper construction of this law and the manifest error into which the public has fallen in its understanding of our first opinion. The petition correctly reviews the opinion in saying the “predominant” idea written into it is the construction of the act only as to liquors lawfully acquired in this state prior to January 1st and held for personal use. That was the only question before the court, and none other was intended to be, or could be, passed upon. The information charged that Eden obtained his liquors prior to January 1, and held them for personal use, and not for the purpose of selling or disposing of them. In other words, the information set forth a lawful possession and a permitted use. Under such a charge, no question of the construction of § 22 was involved, other than to hold that it applied only to liquors acquired subsequent to January 1st, and hence, was inoperative as against liquors *15acquired prior to that date. Such a construction, the prosecutors say, would not be “a blow to a rigid enforcement of the law.” We agree with such statement, and we find nothing in the opinion, when read in connection with the agreed facts, which in any way militates against such a view.
¶15It is unfortunate that opinions in cases of this character, involving the enforcement of a law in which the people of the state have taken such interest, should be construed other than by reference to the facts before the court and the plain intendment of the law as to those facts. When properly read in the light of the admitted facts and the language of the act, the former opinion cannot offend against the most rigid enforcement of the terms of the act. All the provisions of the law are preserved and offenders are still subject to prosecution to the same extent and for the same causes now as at any other time since the law became effective.
¶16The only question involved in Eden’s case, subsequent to the time this law went into effect, was his intent to make personal use of his liquor, either by personal consumption or by gifts to guests in his own home. The law not only fails to make such a use a violation of its terms, but by exact language permits it. How, then, if he obtained his liquors lawfully and intended to put them only to a permitted use, could his act in any sense be termed a violation of the law? We again reiterate what the prosecuting attorneys are pleased to refer to as the “predominant” idea in the former opinion, that the possession of liquors lawfully obtained prior to January 1st, and held only for personal use, is not a violation of the law, and no language of the former opinion can be consti’ued as destroying the vital force of § 22, or of other sections relating to the quantity of liquor lawfully obtainable subsequent to that date. As said in State v. Martin, post p. 366, 159 Pac. 88, liquors obtained prior to January 1st do not offend against the law when retained only for a personal or permitted use, but do so offend when x’etained for a commercial use.
¶17*16These observations as to the purpose and effect of our original opinion will, we think, make our construction of the law so plain as to the question involved that no necessity now arises for a rehearing, and the same is denied.