(dissenting). — It is agreed there was a time when the appellant had the right to sell the cigarettes seized in this proceeding in the original packages in which it had imported them; conceded that, at one time, no law of this state gave the right to seize these goods, and this for the reason that they were protected by the interstate commerce clause of the Federal Constitution. See State v. Eckenrode, 148 Iowa 173; McGregor v. Cone, 104 Iowa 465; Leisy v. Hardin, 135 U. S. 100 (10 Sup. Ct. Rep. 681, at 689); Low v. Austin, 80 U. S. 29. This immunity still exists, unless the importer has done something which empowers this court to declare that these goods are no longer in interstate commerce. But one thing is asserted to have worked this change. The majority opinion concedes there is no change unless it be effected because “the appellant, at the time of the seizure, held the cigarettes with intent thereafter to break the packages, and offer the contents for sale within the state, in violation of Section 5006 of the statute.”
As an abstraction, an unexecuted intention accomplishes nothing and changes nothing. In Shakespeare’s words, speaking of an unknown sin, naked intention is “as a thought unspoken.” The most perfectly formed plan to murder does not threaten the liberty of the intending murderer, so long as what exists rests merely in unexecuted purpose. A white house remains white, despite a completely formed intention to paint it red. As an abstraction, then, these cigarettes did not lose their status as being articles in interstate commerce, though their owner confesses an intention to do something later which, when done, will deprive these goods of that status. But, of course, the law' can make the entertaining off a specific intent a material thing. *558Statute may decree that whether liquors may be seized shall depend upon the intent with which they are kept. But this presupposes power to deal, with the liquors. The Federal law creates the immunity. If the Federal law does not take away its protection because of the naked intention to sell in broken packages, an express state statute that the immunity shall end when such intent is formed would be void. What is true of an express statute to that effect is equally true of a decision to that effect on part of a state court of last resort. So, while I agree that State v. Blackwell, 65 Me. 556, does hold that intention may change a status created by Federal law, such holding is not controlling. It is surely no stronger than a statute declaring the same thing. When we come to terminating a protection created by Federal law, we must look for our warrant to Federal law alone.
I am of opinion that the Supreme Court of the United States has spoken in terms of exclusion on this point; that it has affirmatively declared what alone will remove the protection of the commerce clause; and that, as intention is not mentioned, under the rule that what is expressed excludes what is not named, the effect of it is a holding that intention will not remove this protection. • But it is not necessary to rely wholly upon this rule of construction, or upon implication. It seems to me Coe v. Town of Errol, 116 U. S. 517 (6 Sup. Ct. Rep. 175), expressly holds that intent will not change the relation of property to being in interstate commerce. True, the Errol case declares what will .put property under the protection of the commerce clause. But that does not change the principle involved, and what .is there held is just as applicable when the question is whether intent will remove the protection of the commerce - clause. If intent to do what will give property the Federal protection does not effect such protection, then an intent to do what, if done, will take property out of interstate *559commerce, cannot destroy the protection. If the Errol case settles that an intent to put goods into interstate commerce will not oust the dominion of the state over property, it Is not given to me to understand why this does not as well settle that no mere intention to do what, if done, will restore the dominion of the state, is operative to restore such dominion. As well say that, though an intention to leave this state will not destroy the right to vote therein, that an intention to live in the state gives the right to vote therein. The Errol case over and again declares it is dealing with what will create a status. It defines over and again what acts will put property within the protection of the commerce clause, and so end the dominion of the state. It decides nothing except whether intent can change a status. It is quite adventitious that the decision was invoked by a. question of whether the state of New Hampshire might tax certain property. Whether it might so tax was a mere vehicle. Surely, the holding on the effect of mere intent would have been the same if, instead of whether property might be taxed by the state, the question had been whether the state might seize and condemn that property. The decision does not make tax law. It does not hold what it does because the collection of a tax is involved, but because specified facts do not make the commerce clause operative, and, therefore, maintain a status which authorizes state taxation. The vitals of the decision is not that goods may be taxed, but that this may be done because intention, short of execution, does not put goods into interstate commerce, and so change the power of a state to tax. Suppose an attempt to collect a poll tax, and a defense that the state may not collect it because the defendant intends to remove. I take it a decision that the defendant must pay, while deciding that one is liable for a poll tax, would hardly be classed as one making tax law; and all would agree that the decision was not poll tax law, but “intent” law. The decision Avould not be a precedent on *560tax law as such. It would be cited only for ruling on whether an intent is effective to destroy an existing condition with reference to tax laws, or with reference to anything else, where it becomes material to determine the power of intent to affect status. This, and just this, is the effect of the Errol case. In my opinion, it controls this case, and we should hold that the cigarettes seized are still within the protection of Federal law.
Gaynor, J., concurs in this dissent.