Concurring.| — If the evidence offered by the prosecution is true, then the defendant was indisputably guilty of possessing intoxicating liquor. If, however, the evidence given by the defendant is. true, then under what to the writer appears to be the reasonable construction to be placed upon the statute he was not guilty of a crime. If the evidence received in behalf of the state is true then it can be said not only that the defendant had reasonable grounds to know but also that he actually knew that the suitcase contained whisky; but if the evidence received in behalf of the defendant is true then he neither knew nor suspected nor had reasonable grounds to know or to suspect nor had a reasonable opportunity to ascertain that the suitcase contained whisky. It is conceded that the suitcase did contain whisky; the defendant does not claim that the liquor was lawfully in his possession in this state “at the time of the taking effect of” Chapter 40, Laws of 1917; and therefore under the circumstances attending the trial the instructions which the court gave to the jury amounted to a directed verdict. Obedience to the instructions of the court left the jury no alternative except to find the defendant guilty; for the court in effect said to the jury that unless the defendant proved his innocence by showing that the whisky was lawfully in his possession “prior to February, 1917,” he was guilty of the crime of possessing intoxicating liquor. Inasmuch as the defendant did not claim that the intoxicants had lawfully come into his possession in this state “prior to February, 1917,” the jurors *534were in effect advised and they unquestionably understood that they were obliged to return a verdict of guilty if the suitcase contained whisky and if the defendant lifted it off the ground.
The jury was told that “the law absolutely prohibits intoxicating liquor in his (the defendant) possession” and it is manifest from a reading of the record that the jurors understood that the possession of the suitcase alone and of itself inevitably and inexcusably resulted in a crime “whether he knows its contents or not.” The state argues that the prohibition of the statute is absolute and all-comprehensive and that therefore when the defendant took the suitcase into his custody he did so at his peril and at the risk of it containing intoxicating liquor; and that if he wished to avoid the possibility of violating the prohibition law he was obliged either not to take the suitcase into his custody or else to compel the owner of it to demonstrate to him, before taking it into his custody, that it did not contain any intoxicating liquor. In a word, the prosecution contends that Section 1 of Chapter 40, Laws of 1917, made the defendant a criminal if, in his capacity as a hotel porter, he took into his possession a suitcase containing whisky, honestly believing that the suitcase was only an ordinary piece of baggage containing the customary and usual belongings of a traveler and in despite of and notwithstanding the fact that he neither knew nor suspected, nor had reason to know or to suspect nor had a reasonable opportunity to ascertain that it contained intoxicants. The position taken by the district attorney is the logical result of the construction which he places upon the statute; and hence in order to determine the question for decision we must first examine the statute and, if possible, ascertain the intent of the legislature.
*535It will not be without some avail if before noticing the language of the statute we bring ourselves to a full realization of the gravity of the contention made by the prosecution and if we can first come to a thorough understanding of the extremes to which that contention inevitably leads. If the theory of the prosecution is correct then there can be but two kinds of possession; one absolutely rightful and therefore entirely lawful, the other absolutely wrongful and therefore entirely unlawful; and hence there can be no such thing as an unavoidable and innocent possession. If the statute means what the prosecution says it means, then it means that if a passenger either alone or with others boards a crowded train and finds two seats “turned together’-’ with a suitcase or a hand-bag on one or both those seats and, with or without the consent of the owner of the suitcase or hand-bag, lifts it off the seat and places it on the floor for the purpose of making room on the seat for himself or those with him, he is guilty of a violation of the prohibition law if that suitcase or hand-bag contains the smallest conceivable quantity of intoxicating liquor, even though such passenger neither has nor could reasonably entertain the slightest suspicion that intoxicating liquor was hidden within the closed covers of the suitcase or hand-bag, and the fact that such passenger is the most devout religionist or the most active and ardent prohibitionist cannot release him from the relentless grasp of the law; it means that if a passenger in the act of boarding or alighting from a train delivers his hand-bag to a brakeman stationed at the foot of the steps to be handed up to him as soon as he has ascended the car-steps or given to him after he has descended from the steps, the brakeman becomes a lawbreaker if the handbag contains intoxicants although the brakeman does *536not know and cannot know because be has no means or opportunity of ascertaining what is in the handbag, and if the brakeman repeats the act a second and a third time he may be sent to the penitentiary; it means that if a passenger moves an overcoat, belonging to another, from one to another seat or places it in the rack or hangs it on a hook, either with or without the express consent of the owner, he commits a crime if in one of the pockets of that overcoat there happens to be a bottle containing intoxicating liquor and he cannot escape from the penalty of that crime by showing that he did not know what was in the pocket of the overcoat; it means that if the driver of an automobile passes a friend or stranger afoot and carrying baggage and as an act of pure kindness invites the footman to ride and assists him to lift his baggage into the automobile, the driver violates the prohibition law if that baggage has concealed in it any quantity of intoxicating liquor; it means that every taxicab driver who receives passengers and assists them with their baggage into and out of the taxicab, touches that baggage at his peril and if it contains intoxicants he breaks the law; it means that every person who for a single moment takes into his or her possession any suitcase, hand-bag, box or package without first examining its contents or any garment without first going through its pockets does so at his or her peril. These supposed examples are neither highly imaginative nor overdrawn, but every one of the supposed happenings has probably occurred many times since the enactment of the statute; and they are likely to occur every time intoxicating liquor is brought into this state in a suitcase, or a hand-bag, or an overcoat, or a box of any kind. Now with these examples and many more which can readily be suggested as likely to occur in the work-a-day lives of hon*537est, law-abiding, yea law-enforcing citizens, can it reasonably be said that the legislature intended that its language should or would receive the construction placed upon it by the prosecution?
All will of course concede that the legislature has authority, in thó exercise of its police powers, to forbid the doing of an act and to impose criminal penalties for the doing of such act without regard to the intent or knowledge of the doer; the purpose being, as said in People v. Roby, 52 Mich. 577, 579 (18 N. W. 365, 50 Am. Rep. 270), “to require a degree of diligence for the protection of the public which shall render violation impossible”: State v. Gulley, 41 Or. 318, 321 (70 Pac. 385); 16 C. J. 76. It must be conceded, too, that the legislature can in the exercise of its police power forbid and penalize with fine and imprisonment the manufacture or sale or possession of intoxicating liquors: Mugler v. Kansas, 123 U. S. 623 (31 L. Ed. 205, 8 Sup. Ct. Rep. 273); In re Crane, 27 Idaho, 671 (151 Pac. 1006, L. R. A. 1918A, 942), affirmed by the United States Supreme Court in Crane v. Campbell, 245 U. S. 304 (62 L. Ed. 304, 38 Sup. Ct. Rep. 98); Seattle v. Brookins, 98 Wash. 290 (167 Pac. 940, 941). While the legislature undeniably possesses conceded authority to forbid the doing of a specified act and to punish the doing of such forbidden act, yet this broad power, as announced by Mr. Chief Justice Rudkin in State v. Strasburg, 60 Wash. 106 (110 Pac. 1020, Ann. Cas. 1912B, 925, 32 L. R. A. (N. S.) 1216), “is not without constitutional limitations and restraints, and we can hardly conceive of a valid penal law which would punish a man for the commission of an act which the utmost care and circumspection on his part would not enable him to avoid.” See, also, the unanswered question suggested in Welch *538v. State, 145 Wis. 86, 89 (129 N. W. 656, 32 L. R. A. (N. S.) 746). It will not be necessary here to attempt to fix or define the limitations upon the power of the legislature to forbid the doing of a specified act irrespective of the knowledge or intent of the doer, since it will be assumed for the purposes of the discussion that the legislature had full power to do all that the district attorney claims that it has done.
It remains then to ascertain the intention of the lawmakers when they amended Section 5 of Chapter 141, Laws of 1915, by enacting Section 1 of Chapter 40, Laws of 1917, as follows:
“Except as hereinafter provided in this amendatory Act it shall be unlawful for any person to receive, import, possess, transport, deliver, manufacture, sell, give away or barter any intoxicating liquor within this State; and the place of delivery of any intoxicating liquor is hereby declared the place of sale; provided, that it shall not be unlawful for any person to have in his possession intoxicating liquor lawfully procured and in the possession of such person within this State at the time of the taking effect of this amendatory Act, or lawfully obtained or received under the provisions of this Act.”
lEeduced to its briefest terms the act of 1917 makes it unlawful for any person to possess intoxicating liquor unless he possessed it when the act became effective or obtained or received it under the provisions of the act.
The circumstance that the word “knowingly” does not appear in the act is not conclusive; but the question of whether or not this statute is to be construed to mean that proof of the custody of a suitcase containing intoxicating liquor is conclusive proof of guilt regardless of whether the defendant knows or suspects, or has reasonable grounds to know or suspect, or has a rea*539sonable opportunity to learn that the suitcase contains liquor, must be determined by considering the subject matter of the statute, the language of the act, the evil sought to be eradicated or prevented and the consequences of the several constructions to which the statute may be susceptible. ¡¡ It is, as was tersely announced in Wells Fargo & Co. Express v. State, 79 Ark. 349, 351 (96 S. W. 189), “a matter of construction, from the subject matter and the evil to be remedied, whether such words (“knowingly” and “willfully”) are to be implied, or the statute enforced as written”: Matter of Application of Ahart, 172 Cal. 762, 764 (159 Pac. 160); Com. v. Weiss, 139 Pa. St. 247 (21 Atl. 10, 23 Am. St. Rep. 182, 184, 11 L. R. A. 530); Troutner v. State, 17 Ariz. 506 (154 Pac. 1048, L. R. A. 1916D, 262, 263); 2 Lewis’ Sutherland on Stat. Const. (2 ed.), § 527; 8 R. C. L. 62, 63.
,iTke legislature has the power, within certain limitations, as already stated, to declare that the doing of a specified act shall constitute a crime and that it shall be punished by fine or imprisonment or both, and, therefore, if the language and subject matter of the statute show clearly that it was the manifest intention of the legislature to make the doing of such specified act a crime regardless of the knowledge or intent of the doer, the courts will give effect to the intention of the lawmakers however harshly the statute may seem to operate in a given instance: State v. Shevlin-Carpenter Co., 99 Minn. 158 (108 N. W. 935, 9 Ann. Cas. 634, 636); but, in the language of the Supreme Court of Michigan, “courts are, however, slow to find a legislative intention to condemn a man for not knowing that which he cannot know”: People v. Rice, 161 Mich. 657, 664 (126 N. W. 981, 984).
*540One thoroughly established and oft-applied rule of statutory construction is that a statute should be so construed as to give a sensible and intelligent meaning to every part, to avoid absurd and unjust consequences. The courts can apply common sense to the terms employed in a statute in order to avoid an absurdity which the legislature ought not to be presumed to have intended. J A statute which leads to the consequences which will necessarily result from the construction which the prosecution asks us to adopt ought, as declared by Mr. Chief Justice Lord, “not only to be clear, but mandátory, and the act done under it not only within the letter, but within the spirit, of the law, to authorize its enforcement”: State v. McGuire, 24 Or. 366, 371 (33 Pac. 666, 668, 21 L. R. A. 478). The pronouncement of Mr. Justice Field in United States v. Kirby, 7 Wall. 482 (19 L. Ed. 278), is sufficiently apropos to justify an extended quotation from the recorded opinion:
“All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law, in such cases, should prevail over its letter.
“The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted, 'That whoever drew blood in the streets should be punished with the utmost severity,’ did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the Statute of 1 Edward II, which enacts that a prisoner who breaks prison shall be guilty of a felony, does not extend to a prisoner who breaks out when the *541prison is on fire — ‘for lie is not to be hanged because he would not stay to be burnt.’ ”
And the writer thinks that a like common sense will sanction the ruling that the statute which makes it a crime to possess intoxicating liquor does not apply to a hotel porter who in the performance of his usual and customary duties merely takes a suitcase into his custody and places it upon a bus to be conveyed to a hotel, without knowing, or having reasonable ground to suspect, or a reasonable opportunity to ascertain that the suitcase contains intoxicating liquor. Precedents which are peculiarly pertinent to the subject now discussed are the following: Golpi v. State (Okl. Cr.), 174 Pac. 288; De Hasque v. Atchison, T. & S. F. Ry. Co. (Okl.), 173 Pac. 73, 77, L. R. A. 1918F, 259; Matter of Application of Ahart, 172 Cal. 762 (159 Pac. 160); State v. Swett, 87 Me. 99 (32 Atl. 806, 47 Am. St. Rep. 306, 29 L. R. A. 714). The rules of construction, to which attention has already been directed, are amply supported by judges and text-writers: State v. Fisher, 53 Or. 38, 41 (98 Pac. 713); In re Chapman, 166 U. S. 661, 667 (41 L. Ed. 1154, 17 Sup. Ct. Rep. 677); Tsoi Sim v. United States, 116 Fed. 920 (54 C. C. A. 154, 5 L. R. A. 342, 343, note); 2 Lewis’ Sutherland on Stat. Const. (2 ed.), §§ 516, 526; 36 Cyc. 1108-1112; State v. Goss, 59 Vt. 266 (9 Atl. 829, 59 Am. Rep. 706); The Nitro-Glycerine Case, 15 Wall. 524 (21 L. Ed. 206); State ex rel. v. Southern Express Co. (Ala.), 75 South. 343, 350; 16 C. J. 76-78.
Cases where a defendant is convicted of selling some prohibited article, for example oleomargarine or intoxicating liquor, are easily distinguishable from the case presented here. Because of the misery, poverty and crime that accompany the consumption of intoxicating liquor the state has outlawed such liquor by pro*542hibiting its sale or possession so that its consumption and therefore the evils which go with its consumption may be prevented. A person who sells an article is bound to know that the article which he sells is not intoxicating and he cannot defend by saying that he did not know that the article sold by him was intoxicating. Applying the accepted rules of construction it is obvious that the statute would fail to accomplish its purpose if the seller of an article could defeat a prosecution by showing that he did not know the character of the article disposed of by him. The seller has an opportunity to know what he sells and therefore is bound to know that what he sells is not of the forbidden kind. The legislature must be presumed to have enacted the statute with a knowledge of the manner in which people usually and ordinarily live and conduct their business and social affairs, and hence it can readily be seen that the lawmakers intended that sellers could and therefore must know what they sell; and it can just as readily be seen that in addition to instances where persons knowingly possess intoxicating liquor the legislature was also aware of the many instances which are bound to occur where a person happens temporarily to have in his or her custody a piece of baggage, a box, a garment or a parcel in which there may be intoxicants without the temporary custodian knowing or being reasonably able to learn of the contents of the baggage, box, garment or parcel.
;To hold that the defendant violated the prohibition law when he lifted the suitcase off the ground “whether he knows of its contents or not” and without regard to his opportunity to know what was contained in the suitcase is to hold not only that the statute was designed to reach those who knowingly or in reason ought to know when they take contraband liquor into their *543possession, but also that it was deliberately contrived to serve as a trap to ensnare the unwary and to enmesh law-abiding and law-enforcing citizens. Not until the legislature uses clear and mandatory language will the writer believe that the legislature intended any such consequences as must and will flow from the construction which the plaintiff places upon the word “possess” as used in the statute.} Nor will the statute be emasculated. It will be no more difficult to convict a person of a guilty possession of intoxicating liquor than it will to convict of any other crime requiring either knowledge or an opportunity to gain knowledge. And be it remembered that most of our statutes defining crimes embrace the element of knowledge or its legal equivalent, an opportunity for knowledge. The legislature intended to prohibit persons from possessing intoxicants when they know or have reasonable ground to believe or have an opportunity to know that they possess intoxicating liquor; but the prohibition does not include the person who neither knows nor suspects nor has reasonable ground to believe nor has an opportunity to know that a suitcase, which is temporarily in his custody, contains intoxicating liquor.
I concur with the conclusion reached by Mr. Justice Johns. The judgment should be reversed and the cause remanded for a new trial.