dissenting. — I do not understand it to be *366claimed in the foregoing opinion that there is any provision of the statute which in words forbids the manufacture of intoxicating liquors for sale out of the state for purposes which would be unlawful if the sale were made in this state. If there is no such provision of the statute, then the right to transport the liquor for sale out of the state necessarily exists.
I do not understand it to be claimed by the majority of the court that there is any distinction between the seller and manufacturer, but that both are placed by the statute on the same footing. It is true, it is stated in the opinion of the majority that “ there is no provision of the statute which, by fair construction, authorizes its manufacture for exportation.” This, it seems to me, is not a fair statement of the question to be determined, which is whether there is any provision of the statute which, in terms or by fair construction, forbids' the transportation of liquors for sale beyond the boundaries of the state. Unless there is such a statute, the right clearly exists, although there may not be an affirmative statute declaring the existence of such right. A statute 'which simply declares that liquors cannot be manufactured or sold, except for certain specified purposes, is not sufficient, for the reason that it does not, by necessary implication, apply to the manufacture of liquors for sale out of the state. Therefore, it seems to me, the logic of the foregoing opinion is faulty ; especially is this so when the prior decisions of this court are considered. In Niles v. Fries., 35 Iowa, 4l; it is said by JBeok, J., speaking for the court: “ Intoxicating liquors in the possession of a citizen who holds them for the purpose of selling them lawfully within the state, or for transporting them without the state for lawful traffic, are not, under the statute, subject to seizure. ( Code, § 1525.) To constitute the owning and keeping of intoxicating liquors unlawful, there must exist an intent to sell or dispose of them within the state, contrary to law. In the absence of such intent, the possession of this kind of property is lawful. *367If lawful, the law must protect the property.” This decision was made in 1872, and Becker v. Betten, 39 Iowa, 668, was decided two years later, in which Cole, J., speaking for the court, said : “ Further than this, the right to export remains unlimited to the manufacturer and purchaser.” The italics are mine. Such was the construction placed on the statute by this court twelve or more years ago. Six sessions of the general assembly have since then been held, and it must be assumed that the members of the general assembly are conversant with the decisions of this court construing the statutes of the state, and yet no amendment thereto was made, as is conceded by the majority, which changed the statute so as to avoid the construction adopted in the foregoing decisions. During the same period the distillery in question was in daily operation within sight of the capitolj and it was regarded, by at least some of the citizens of the state, as an outrage, and that its existence was unlawful. At least by four of the sessions of the general assembly the prohibitory law was in some respects amended. During such period, hundreds of barrels of alcohol were annually manufactured at the distillery, sold and transported from the state, and yet no attempt was made, I believe, until about the time this proceeding was commenced, to have such manufacture and sale declared unlawful. This fairly shows, I think, a contemporaneous construction of the statute by this court, acquiesced in by the legislature and people, and therefore the language used in the former decisions cannot at this late day be regarded as inaccurate expressions of judicial thought, or that it was mere dictum. Besides this, in my opinion, it cannot be fairly said that the language used was not applicable to the question actually determined. It therefore seems to me that the construction of the statute, now for the first time adopted, is an after-thought. It cannot be fairly said that during the period mentioned public sentiment in the county of Polk was opposed to the enforcement of the prohibitory law, whatever may be the fact as to other counties in *368the state. In all cases involving tlie proper construction of a statute which has been in force for several years, the contemporaneous construction thereof by the people, courts and legislature, either by acquiescence or otherwise, is entitled to great consideration, if the terms of the statute make its construction doubtful and uncertain.
In my opinion, the statute was properly construed by this court years ago, and that, as an original proposition, such construction is right. This depends wholly upon the construction that should be given to section 1523 of the Code. This, in substance, is conceded by the majority. The other sections of the Code referred to. are mere makeweights, which favor or detract from the construction placed upon section 1523 in the foregoing opinion. Row, what is the scope and object of the statute? The manufacture and sale of intoxicating liquors, except for lawful purposes, is forbidden. But where is the sale forbidden? In' this state, of course. Such is the express language of the statute. It will not be claimed, I assume, if a person sells in another state intoxicating liquors, that he can be punished in this state, or that the statutes make such sale unlawful. Mr. Eidd, therefore, when he sold alcohol in New York, or in this state for shipment to and use in that state, did no act which is forbidden by the laws of this state. It will be observed that it is conceded by the majority that it is immaterial whether the sale was made out of this state or within the state for transportation and use out of it. If the sale is not unlawful, how can the manufacture be unlawful, when both by the statute- are placed on precisely the same basis, as, I think, must be conceded to be the logical result of the foregoing opinion. In my judgment, the plain and the only meaning of the statute is that the sale in this state, and the manufacture for sale 'and use in this state, of intoxicating liquors, for unlawful purposes, are alone prohibited, and that the statute does not undertake to say what may be done with the liquor in another state. If it did, a question would be presented as to *369the validity of the statute. Therefore, the right to sell and transport liquor from the state exists simply because it is not prohibited.
In my opinion, the construction of the statute adopted by the majority makes a conflict between it and the constitution of the United States, and therefore the fifth paragraph of the foregoing opinion is unsound. As long as intoxicating liquors and corn are regarded as property, the right to transport either out of the state exists, although the avowed use of the corn so shipped is the manufacture of such liquors in another state. I also desire to reserve to myself the right hereafter to determine the extent of the police power inherent in the state.
As an individual I cordially assent to all that is said in the opinion of the majority as to the evils of intemperance, but I have doubts as to its materiality in the determination of this controversy.
The judgment of the district court should be. reversed.
Eeed, J., concurs in this dissent