(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.
As 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.
In 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.
The 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.
Again, 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.
The 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.
The 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.
In 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.
In my opinion, the judgment appealed from should be affirmed.