Dissenting Opinion.
Montgomery, J.—The State may not, in the proper exercise of its police power, so far interfere with federal control of interstate commerce as to prohibit the importation of cigarettes in packages of customary sizes in such commerce. The right of importation carries with it the right to resell in original packages, and the right by the importer to own and keep such cigarettes for personal use. *398Donald v. Scott (1895), 76 Fed. 554; Scott v. Donald (1897), 165 U. S. 58, 17 Sup. Ct. 265, 41 L. Ed. 632; Bowman v. Chicago, etc., R. Co. (1888), 125 U. S. 465, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700. These principles induce me to concur in the result reached in the Lowry case.
In the Lewis case, however, I cannot give assent to the construction of the statute under consideration, adopted by the majority of the court. The prevailing opinion legalizes ownership and possession of cigarettes for personal use, without regard to .the source from which they were obtained. This holding denounces as a criminal the man who sells or gives away a cigarette, but shields the one who procures the unlawful act to be done. It is difficult to conceive that a possession can be lawful which is wholly founded upon an unlawful transaction. Courts have nothing to say concerning the mere policy of legislation. It is for the legislature to determine what regulations are needed to protect the public health, morals and safety, and if the measures adopted are intended, convenient and appropriate to these ends, the exercise of its discretion is not subject to review by the courts. But when the legislature in the exercise of the police power of the State has passed an act, it is the duty of the court to give it the greatest effect reasonably possible towards accomplishing the objects intended. It is a familiar principle that where the meaning is doubtful, in seeking the intent of the legislature, it is proper for the court not only to consider the letter of the act, but also the circumstances under which it was enacted, prior legislation upon the same subject, the mischief to be remedied and other like matters. State Board, etc., v. Holliday (1898), 150 Ind. 216, 233, 42 L. R. A. 826; Hunt v. Lake Shore, etc., R. Co. (1887), 112 Ind. 69, 75; Middleton v. Greeson (1886), 106 Ind. 18, and cases cited.
In 1893 ,(Acts 1893, p. 19) the legislature passed an act making it unlawful to give, barter or sell, either di*399rectly or indirectly, to any child under sixteen years of age, tobacco or preparations of tobacco to be chewed or smoked by said child, or to persuade, advise, counsel or compel any such child to chew or smoke tobacco.
In 1897 (Acts 1897, p. 205) it was m.ade unlawful to sell, barter, furnish or give away, directly or indirectly, to any minor, any cigarette, cigarette wrapper or any substitute for either, or to procure for, or to persuade, advise, counsel or compel any minor to smoke any cigarette.
The General Assembly of 1905 (Acts 1905, pp. 16 and 584, 719, §§2213-2215 Burns 1905) in revising the criminal code reenacted these statutes, and in addition passed the act now under consideration. It is manifest, that the last enactment is not the result of an emotional impulse, but is the product of mature thought and of gradual growth, and was intended to meet an existing necessity. Construing these statutes together, as we must, it is evident that the primary consideration of the legislature was to provide some effectual means of protecting the youth of the State from the pernicious effects of cigarette smoking. It is conceded by all that the use of cigarettes by the young is injurious to a serious degree, and it is a matter of common knowledge that prior- laws had proved inadequate to prevent the evil. Keeping in mind the history of legislation upon this subject, the inefficiency of prior statutes, the existing evil, and the ends to be attained, what is the fair and reasonable interpretation of the language of the act? Is the possession of these contraband articles denied only to dealers and warehousemen having in view a sale or some species of disposition to others, or is such possession forbidden to all persons and for any purpose, except when within the protection of the interstate commerce clause of the Constitution of the United States?
The statute under consideration was manifestly patterned from §5006 Code of Iowa 1897, which reads as follows: “No one, by himself, clerk, servant, employe or *400agent, shall, for himself or any person else, directly or indirectly, or upon any pretense, or by any device, manufacture, sell, exchange, barter, dispense, give in the consideration of the purchase of any property, of any services, or in evasion hereof, or keep for sale, any cigarettes or cigarette paper or cigarette wrappers, or any paper made or prepared for the purpose of making cigarettes, nr for the purpose of being filled with tobacco for smoking; or own or keep, or be in any way concerned, engáged or employed in owning or keeping, any such cigarettes or cigarette paper or wrappers, with intent to violate am/ provision of this sectionj or authorize or permit the same to be done,” etc.
The omission of the italicized words from the Iowa statute, requiring an unlawful intent to sell or dispose of the prohibited articles in connection with the owning and keeping of the same, is very significant. The language of the Indiana act is that it shall be unlawful for any person to keep or own any cigarette, cigarette paper or wrapper, without any qualification as to whether the same is for sale or use. The obvious meaning of the words “keep” and “own” as here used, it seems to me, is that no one shall “keep” or hold a mere naked possession for the use of another, and “own” or hold by virtue of his own title, these prohibited articles. A more limited and obscure meaning might be ascribed to these words, but this interpretation appears so patent as to make the learning of a philologist unnecessary. This construction makes the administration of this statutory police regulation easy and effectual, but if the application of the act is to be limited as held in the principal opinion, its fair enforcement becomes impossible, and the evil against which it was directed will be but slightly mitigated. We cannot expect satisfactory enforcement of a law which makes guilt or innocence depend upon the secret intent of the accused person.
*401The characteristics distinguishing dealers and consumers who own articles suitable for use as well as sale are too capricious for practical purposes. The construction adopted in the majority opinion will no doubt close established places of business and banish reputable dealers in this species of goods, but it may turn loose upon the community a horde of irresponsible peripatetic agents, carrying a stock ostensibly for their own use, seeking purchasers in privacy and preying upon the artificial appetite created by their acquired habits. I do not think the application of the law was intended to be so limited. This view is supported and confirmed by reference to the legislative journals containing the proceedings relating to the passage of this act. Such journals are not only proper, but often most valuable aids to the court in determining the legislative intention, where the language used is of doubtful meaning. Edger v. Board, etc. (1880), 70 Ind. 331; Walter A. Wood, etc., Mach. Co. v. Caldwell (1876), 54 Ind. 270, 23 Am. Rep. 641; 26 Am. and Eng. Ency. Law (2d ed.), 639.
It appears from the House Journal of 1905, p. 1221, that when the bill was pending upon second reading and was under consideration as a special order, among other amendments proposed was the following: “It shall be unlawful for any person under the age of twenty-one years to smoke, use, keep or own, or be in any way connected, engaged or employed in smoking, using, owning or keeping any cigar7 ettes, cigarette paper or wrappers. Any person violating,” etc. This proposed amendment was rejected by the friends of the bill. Immediately before taking the vote upon the final passage of the bill an amendment was proposed to section one, embodying in substance the conclusion of the majority in the following language: “Provided further, that nothing in this section shall prevent persons over twenty-one years of age from having in their possession to be used, cigarettes, cigarette paper and tobacco.” This proposed amendment was rejected. House Journal *402of 1905, p. 1398. It is my opinion that it was and is the intent of this statute, as finally passed, to make the possession of cigarettes, and the constituent parts thereof mentioned, by any person within this State, unlawful, except where such possession is within the protection of the interstate commerce clause of the Constitution of the United States.
A discussion of the constitutional question argued in this connection is unnecessary, -and the judgment against appellant Lewis ought to be affirmed.