(concurring) . — If the majority had announced the conclusion that under our peculiar system of government it is an implied term or condition in every statute defining crime that its penalties are not to be enforced for an act done after an authoritative judicial decision declaring the enactment unconstitutional and before a later decision by which the former is overruled and the validity of such law judicially affirmed, I should not burden the record with any expression of my individual views. The authority of a court to say that a statute is not applicable to every case apparently included within its general terms is a delicate if not dangerous one which *533in the hands of a reckless judiciary would be productive of-the gravest abuses, but it is nevertheless a necessary authority, and one to which the most eminent courts of the country have at times resorted. General statutes are necessarily stated in general -terms to effect certain general or specific results, and it not infrequently happens that we find a case which is embraced within the literal general terms of the law, but which, we are morally certain, is not within its intent, and,' wljem such appears to be the case, the enforcement of such law is restricted accordingly. In line with this thought I quote the following: “Acts of Parliament are to be construed as no man that is innocent or free from injury or wrong be by a literal construction punished or endangered.” Margaret Pier Co. v. Hannam, 3 B. & A. 266. “If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity.” State v. Clark, 29 N. J. Law, 96. “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.” United States v. Kirby, 74 U. S. 482 (19 L. Ed. 278). See, also, United States v. Palmer, 16 U. S. 631 (4 L. Ed. 471). “It is a familiar rule that a thing may be within the letter of the statute, and yet not within the statute, because not within its spirit nor within the intention of its makers. This is not a substitution of the will of the judge for that of the legislator, for frequently words- of general meaning are used in a statute, words broad enough to include the act in question, and yet a consideration of the whole legislation or of the circumstances surrounding its enactment or of the absurd results which follow from giving such broad meaning to the words makes it unreasonable to *534believe that the Legislature intended to include the particular act.” Trinity v. United States, 143 U. S. 457 (12 Sup. Ct. 511, 36 L. Ed. 226). “A thing which is within the letter of a statute is not within the statute unless it be within the intention of the makers.” Jackson v. Collins, 3 Cow. (N. Y.) 89. See, also, Ryegate v. Wardsboro, 30 Vt. 746; Murray v. Hobson, 10 Colo. 66 (13 Pac. 921); Commonwealth v. Kimball, 24 Pick. (Mass.) 366; Whitney v. Whitney, 14 Mass. 88; Pierce v. Emery, 32 N. H. 508; Austin v. State, 22 Ind. App. 221 (53 N. W. 481). It is a fair deduction from these authorities that the very absurdity to say nothing of the essential injustice involved in punishing as criminal the violation of a statute of the state which we as the court of last resort in that state were then solemnly assuring the people was unconstitutional and void, and not entitled to their obedience, is sufficient reason for saying that the Legislature could not have intended any such application of its enactment. The road by which this result is reached is not wholly unlike the one pursued in the opinion prepared by Mr. Justice. McClain. It differs, however, in this somewhat material respect, in that he emphasizes the lack of criminal intent upon the part of appellant in doing the act, while I have emphasized the absence of legislative intent to include such acts within the penalty of the statute. The latter view appeals to me as being sound, and it avoids the otherwise formidable objection raised by Mr. Chief Justice Deemer that we can not make the absence of criminal intent a controlling consideration without creating confusion' in our decisions, and unsettling or weakening the authority of the precedents to which he refers: The argument by analogy from the rule which obtains where the accused is shown to be- an insane person or an irresponsible infant is hardly applicable for in such cases crime is not imputed — not so much from the want of criminal intent as from the incapacity of the accused *535to know or appreciate the quality of the act with which he is charged. On the other hand, I can not agree with the concurring opinion by the Ohief Justice in holding that a change in judicial interpretation of a statute becomes a part of the statute or that a change in such interpretation is the “same in effect as an amendment of the law by means of legislative enactment.” Whatever may have been their practice in border-line cases, our courts have always been quick to deny the charge of magnifying their authority or indulging in judicial legislation, and I think we should carefully avoid any pronouncement which may give color to criticism of that character. The rule which sometimes obtains in civil actions involving contract rights would in my judgment have a very misleading application in criminal cases, for in the former the party is relieved from the effect of the change of decision not because the erroneous holding becomes a part of the law (though that expression is often used), but because the parties are presumed to have contracted with reference to such decision which is thereby made in effect a term or condition of the agreement itself.
I am also' firmly persuaded that the constitutional inhibition of cruel and inhuman punishments is not available to the appellant in this case. To make it applicable, we must assume the guilt of the accused, but hold the punishment prescribed is objectionable because it is cruel, inhuman, or one out of' all reasonable proportion to the nature and quality of - the offense. But, assuming guilt, a punishment is not obnoxious to the constitutional provision merely because it is severe. Bine and imprisonment are substantially the only practicable penalties which the state can impose upon offenders, and, except in extreme cases showing gross abuse of such authority the courts will not, or at least ought not, assume to say that a statute imposing them is void. The penalty which the statute imposes for the offense charged against the appellant is *536a fine of not less than $50 nor more than $100 for the first offense, with alternative of imprisonment not exceeding thirty days in case the fine be not paid. Oode, sections 2382, 2383. Assuming that appellant was punishable at all, and as I have said we must so assume before raising the constitutional objection, it is to me inconceivable that such punishment is excessive or cruel, or inhuman or unreasonable within the meaning of that provision. The books will be searched in vain for a precedent to justify that holding. To the contrary, see State v. Teeters, 97 Iowa, 458; Martin v. Blattner, 68 Iowa, 286; State v. Huff, 76 Iowa, 204; Fisher v. McDaniel, 9 Wyo. 457 (64 Pac. 1056, 87 Am. St. Rep. 981); Luton v. Palmer, 69 Mich. 610 (37 N. W. 701); Commonwealth v. Hitchings, 71 Mass. 482; Blydenburgh v. Miles, 39 Conn. 484; Commonwealth v. Murphy, 165 Mass. 66 (42 N. E. 504, 30 L. R. A. 734, 52 Am. St. Rep. 496); Ex parte Keeler, 45 S. C. 537 (23 S. E. 865, 31 L. R. A. 678, 55 Am. St. Rep. 785); State v. Nelson, 10 Idaho, 522 (79 Pac. 79, 67 L. R. A. 808, 109 Am. St. Rep. 226); Ex parte Swann, 96 Mo. 44 (9 S. W. 10); Pervear v. Massachusetts, 72 U. S. 475 (18 L. Ed. 608); McLaughlin v. State, 45 Ind. 328; State v. Barnes, 3 N. D. 319 (55 N. W. 883); Harper v. Commonwealth, 93 Ky. 290 (19 S. W. 737); State v. DeLano, 80 Wis. 259 (49 N. W. 808); State v. Rodman, 58 Minn. 393 (59 N. W. 1098).
In fact as I view it, there is but one tenable ground on which we can interfere with the judgment of the trial court in this case, and that is to say that the act with which the defendant is charged, though within the letter of the prohibition of the statute, is not within its purpose, reason, or intent, and is therefore not punishable. On that ground alone I would reverse.