ON PETITION FOR REHEARING.
WILLIAM A. LEE, J.Counsel for appellant rely chiefly for a reversal of the judgment below upon the ground that C. S., sec. 2606, upon which the prosecution is based, is in irreconcilable conflict with section 33 of the act of Congress, known as the Volstead Act, and that the federal law being the paramount law, the state statute must yield in so far as the two are in conflict.
C. S., sec. 2606, in part -reads :
“It shall be unlawful for any person, firm, company or corporation, its officers or agents .... to have in his or its possession or to transport any intoxicating liquor or alcohol .... ”
Section 33 of the Volstead Act reads:
“ .... But it shall not be unlawful to possess liquors in one’s private dwelling while the same is occupied and used by him as a dwelling only and such liquor need not be reported, provided such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him.”
In Rhode Island v. Palmer, 253 U. S. 350, 40 Sup. Ct. 486, 64 L. ed. 946, known as the National Prohibition Cases, *587that court, as its sixth conclusion relative to the 18th amendment, said that:
“6. The first section of the Amendment — the one embodying the prohibition — is operative throughout the entire territorial limits of the United States, binds all legislative bodies,- courts, public officers and individuals within those limits, and of its own force invalidates every legislative act —whether by Congress, by a state legislature, or by a territorial assembly — which authorizes or sanctions that which the section prohibits.”
The eleventh conclusion upholds the Yolstead Act as appropriate legislation to enforce the 18th amendment:
; “11. While recognizing that there are limits beyond which' Congress cannot go in treating beverages as within 'its power of enforcement, we think those limits are not transcended by the provision of the Yolstead Act (title II, sec. 1), wherein liquors containing as much as % of 1 per cent of alcohol by volume, and fit for use for beverage purposes, are treated as within that power. (Ruppert v. Caffey, 253 U. S. 264, 64 L. ed. 260.)”
■ That the state statute which prohibits even the innocuous possession of intoxicating liquors and makes such possession for any purpose a crime is in apparent conflict with said section 33 of the Yolstead Act, which expressly permits possession of liquors for the purposes therein specified, seems clear. WTth great learning and industry counsel for appellant have endeavored to show that these two laws cannot operate at the same time in the same jurisdiction, within the same territorial limits and with reference to the same subject matter, and that the act of Congress being the paramount law, it follows that the state law must yield, in so far as it forbids the possession of intoxicating liquors, when the federal law expressly permits such possession.
If appellant’s contention that section 33 of the Yolstead Act is the paramount law of the land, in the sense that the permission given by this act to possess intoxicating liquors under the conditions therein prescribed, and that it prohibits the state from denying such right, be considered, *588it presents a question which under section 237 of the Judiciary Act of Sept. 24, 1789, as now amended (U. S. Rev. Stats, sec. 709; U. S. Comp. Stats. Ann. 1916, sec. 1214; 5 Fed. Stats. Ann., p. 724, note), is one for the ultimate' determination of the federal supreme court, and the decision of this court is merely that of an intermediate court. It therefore becomes of controlling importance to ascertain what this superior court has said with reference to the limitation which the 18th amendment has placed upon the power of the states with reference to this question.
In United States v. Lanza et al., — U. S. —, 43 Sup. Ct. 141, 67 L. ed. —, decided December 11, 1922, and since this cause was submitted, it is said: “In effect the second section of the 18th Amendment put an end to all restrictions upon the state’s power arising out of the federal constitution, and left her free to enact prohibition laws applying to all transactions within her limits.”
In the application for a rehearing, counsel contend that the decision in the Lanza case has no bearing upon the question here presented for determination. The writer hereof concurred in the conclusion reached by this court upon the ground that the construction given by the federal supreme court in the Lanza case to the second section of the 18th amendment is controlling in this case, because it leaves the state free to enact prohibition laws applying to all transactions within her limits, so long as she keeps within the inhibition of the first section of this amendment, which prohibits for beverage purposes the manufacture, sale or transportation of intoxicating liquors, the importation thereof into or the exportation thereof from the United States, for I think it cannot be maintained that either the prohibition of the manufacture, sale, transportation, importation or exportation mentioned is violated by the state statute denying the right of possession. I am unable to understand how the federal supreme court could have employed more apt words than those above quoted by which to declare that the second section of the 18th amendment was intended to, and does, put an end to all restrictions upon *589the state’s power to enact prohibition laws applying to all transactions within her limits, so long as the state does not violate the prohibition contained in the first section of this amendment.
Doubtless there will be many who will not be able to comprehend how any system of laws can be logical, wise or beneficent where there are two statutes in force in the same territory, both of which relate to the same subject and are both designed to correct the same evil, to both of which all citizens and subjects are alike amenable, wherein the one, which because of its being an act of Congress is termed the paramount law, expressly permits that which the other expressly prohibits. Under this state of affairs it may be difficult to secure such a wholesome respect for the law as will insure a willing obedience and universal observance by every citizen and subject, where the one declares lawful that which the other says may be a felony. I think it must be conceded that any system of laws which can give rise to a condition of this kind violates the spirit of fundamental justice.
But it is the function of courts to give judgment upon the law as it is, and not according to what the court may think it should be, and if it be a court of intermediate jurisdiction, as it -would appear to be in the instant case, it can only follow the authority of the superior tribunal. For this reason, and without any want of appreciation for the learned discussion of these questions presented by counsel, with much of which the writer hereof agrees, I conclude that this court is bound to affirm the judgment of the court below, unless appellant’s second contention can be upheld, which is that the adoption of the amendment to the state constitution, known as sec. 26 of art. 3, being after the enactment of C. S., sec. 2606, repeals the same by implication. It reads: “From and after the first day of May in the year 1917, the manufacture, sale, keeping for sale and transportation for sale of intoxicating liquors for beverage purposes are forever prohibited. The legislature shall enforce this section by all needful legislation.”
*590For the reasons pointed out in the decision, this contention does not seem tenable, particularly in view of the rule of construction universally applied to state constitutions, that they are a limitation and not a grant of power. Furthermore, this interpretation of the meaning and purpose of this amendment is contrary to the construction which has quite generally been given to it since its adoption, and is clearly against the weight of authority.
In this connection, I desire to say that the strictures contained in the closing paragraph of counsel’s brief and application for a rehearing, designated as “conclusion,” are neither argumentative nor respectful, and should be stidcken therefrom. The objectionable matter in respondent’s brief, referred to in the petition for rehearing, was withdrawn upon the ■ oral argument, in such a way as left nothing further to be said.
Budge', C. J., and McCarthy, Dunn and Wm. E. Lee, JJ., concur in the conclusion that a rehearing should be denied, and in striking from the record that portion of appellant’s petition and brief on rehearing designated as “conclusion.” It is so ordered.