(concurring):
I concur in the conclusion reached by the majority of the court, but not in some of the points-relied upon in argument. I am of opinion that the circuit court erred in holding that injunction would lie in the case presented by this record, for the following reasons, namely:—
First: Neither the manufacture, sale, nor transportation of *543intoxicating liquors is an offense unless made so by statute; each is a proper subject of legislation, and all have been subjected to legislative action.
Second: In regulating the transportation of intoxicating liquors by common carriers, the Legislature has enacted, by sec. 7, chap. 13, acts of 1913, as amended by chap. 7, acts of 1915, that “no common carrier, for hire, nor other person, for hire or without hire, shall bring or carry into this state, or carry from one place to another within the state, intoxicating liquors for another, even when intended for personal use. ’ ’ The violation of this statute is made a misdemeanor. This is a new and specific offense, created by'this statute, having no .connection whatever with the statute prohibiting the manufacture or regulating the sale of intoxicating liquors. The common carrier is prohibited from carrying for hire, for another, intoxicating liquors, no matter what use the owner intends to make of it.
Third: If a common carrier violates this statute by permitting a passenger riding on a ticket paid for at the passenger rate, to carry with him -as personal baggage intoxicating liquors, then the remedy against- the carrier is by criminal prosecution, and not by injunction, there being no equity jurisdiction conferred on the courts for such violation. Whether or not such carrying is a violation of this statute, I do not think it necessary to decide in this case. If a violation, the remedy as I have said, is by criminal proceedings; if not a violation, there is no equity jurisdiction to prevent it unless found in another section of that chapter, to .which I shall refer later. Evidently the baggage of a passenger is not carried free by the carrier. The charge for carrying baggage is included in the amount paid as fare; but whether paying for carrying baggage in this way is a carrying “for hire” within the meaning of the statute under consideration, is not, in the view I take of the case, necessary to decide. Whether ,it is, or is not, there is no equity jurisdiction, in my opinion, in either event, unless eonfered by statute.-
• Fourth: But may it not be said that the carrier by permitting a passenger to carry as baggage, intoxicating liquors, thereby aids and abets the person who is carrying it for sale ? *544The sale would be unlawful; and by this means may it not be said that the carrier aids and abets the sale? It is contended that intoxicating liquors are not properly a part of the passenger ’s personal baggage, and that the carrier may refuse to give permission to passengers to carry it as such. If this contention be sound, then may it not be said that a court would have equity jurisdiction to prohibit it, under our statute? Sections 14 and 17, chapter 32A, Barnes’ Code 1916, gives courts equity jurisdiction in the following cases:
“Sec. 14. All houses, boat houses, buildings, club rooms, and places of every description, including drug stores, where intoxicating liquors are manufactured, stored, sold or vended, given away, or furnished contrary to law (including those in which clubs, orders or associations sell, barter, give away, distribute or dispense intoxicating liquors to their' members, by any means or device whatever, as provided in section six of this act) shall be held, taken and deemed common and public nuisances. And any person who shall maintain, or shall aid or abet, or knowingly be associated with others in maintaining such common and public nuisance, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, 'and by imprisonment in the county jail not less than thirty days nor more than six months for each offense, and the judgment shall be given that such house, building or other place, or any room therein, be abated or closed up as a place for the sale or keeping of such liquors contrary to law, as the court may determine. ’ ’
• ‘ ‘ Sec. 17. The commissioner, his agents and deputies, and the attorney general, prosecuting attorney, or any citizen of the county where such a nuisance as is defined in section fourteen of this act exists, or is kept or maintained, may maintain a suit in equity in the name of the state to abate and perpetually enjoin the same, and courts of equity shall have jurisdiction thereof. The injunction shall be granted at the commencement of the action and no bond shall be required. ’ ’
The trouble I find in upholding the injunction in this case is that it prohibits the carrier “from permitting the carriage in and upon its passenger trains * # * of any suit ease,*545trunk or other container labeled as containing liquors. ’ ’ No distinction is made between packages of liquors carried by-passengers for personal use and packages carried for unlawful purposes. Of course it cannot be said that a person aids' or abets the commission of an offense if none is committed. I fully appreciate the difficulty, or' perhaps the impossibility, of the officials of the defendant company in ascertaining what liquors carried as baggage is to be used unlawfully, and hence it is prohibited from permitting anyone to carry personal baggage when, labeled as containing liquors. I do not think this can be done upon a charge of aiding and abetting the commission of an offense, in the manner above' indicated.
Reversed and remanded.