(dissenting). With all possible respect for the opinions of my Associates I feel compelled to unqualifiedly dissent from the foregoing opinion. The defendants below, plaintiffs in error here, were indicted, charged with a violation of the act of January 30, 1897. Chapter 109, 29 Stats. 506, U. S. Compiled Statutes 1916, § 4137, which so far as material is as follows :
“Any person who shall introduce or attempt to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, which term shall include any Indian allotment while the title to the same shall be held in trust by the government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall be punished by im*559prisonment for not less than sixty days, and by a fine of not less than one hundred dollars for the first offense and not less than two hundred dollars for each offense thereafter: Provided however, that the person convicted shall be committed unlil fine and costs are paid.”
The defendant Butterfield, a teamster, got a team and wagon at a ranch near Avant, which is in Osage county, formerly the Osage Indian Reservation, Okl., and drove to Hewins, Kan. The exact distance between Avant and Hewins does not appear, but it does appear that iu making the trip from Avant to Hewins, Butterfield camped all night on the road, but expected to return in a continuous journey of all day and most of tlie night. At Hewins he met Hall, his codefendant, and they went to the express office and got seven barrels of beer and started to Avant with them. At some time before the capture the cards showing the consignee of the liquors were defaced and destroyed, and one of the beer barrels was opened so that bottles could be extracted, and five bottles were taken from the barrel and given to an automobile party they met on the road. How many other bottles were taken from this open barrel does not appear. Shortly thereafter they were arrested, while actually on an allotment within the meaning of the section of the statutes referred to, with substantially the balance of the liquor in tlieir possession.
In Parsons on Contracts (9th Ed.) vol. 2, p. 647, the distinction is pointed out between interpretation and construction according to tlie celebrated work of Prof. Erancis Lieber on Legal and Political Hermeneutics, or the Principles of Interpretation and Construction in Law and Politics. The Supreme Court has also approved the distinction as laid down by the same distinguished professor in United States v. Farenholt, 206 U. S. 226, 229, 27 Sup. Ct. 629, 51 L. Ed. 1036.
Guided by these aids upon a mere interpretation of the act of 1897 referred to, it will be plain and manifest that the defendant introduced liquors into the Indian country; that is, on an Indian allotment. It is only when we come to construe the act as distinguished from interpreting it that there can be any pretense of support for the majority opinion. There is no decision of the Supreme Court that under any circumstances one may ship liquors through the Indian country, even though the point of origin and destination are both points at which the handling of liquor is legal. There is not a decision to that effect in the Circuit Courts of Appeals, unless it be Schaap v. United States, 127 C. C. A. 415, 210 Fed. 853. That was a shipment from Ft. Smith, Ark., to Kiowa, Old., and the charge was that the defendant had introduced, and had attempted to introduce, liquors into the Indian country. The subject is not even mentioned in that opinion as to the effect of the transportation of liquors through the Indian country in reaching their destination. True, as' a trip from Ft. Smith to Kiowa would necessarily cross many allotments still held in trust by the government, the case involved tlie question as to whether crossing such allotments was an introduction into Indian country if the point of destination was not Indian country. The question here was not necessarily involved in that case, because if the right of way of the railroad had been acquired in such a way as to extinguish the Indian title, liquors might be transported between lands which were a part of the Indian country, but *560never in the Indian country, on their way from Ft. Smith to Kiowa, which were neither of them in the Indian country. Clairmont v. United States, 225 U. S. 551, 32 Sup. Ct. 787, 56 L. Ed. 1201.
Nothing was said in the opinion as to the character of the title to the right of way, and the most that can be said is that possibly the liquors there in question had to pass through the Indian country. With the exception of the Schaap Case there has never been any decision on the subject, so far as I can ascertain, aside from decisions of the District Courts and of the Territorial Court of .Montana. Of course the trial court in this case has so held if the liquors were transported for a lawful purpose. The question first came before the Supreme Court of the Territory of Montana in United States v. Carr, 2 Mont. 234. In that case the opinion is little more extensive than the syllabus, which is as follows:
“Citizens of the United States, and those who have declared their intention to become such, have the right to carry spirituous liquors through the Indian country for the purpose of lawfully soiling the same in other places.”
The next case is United States v. Twenty-Nine Gallons of Whisky (D. C.) 45 Fed. 847. This opinion was delivered by Judge Hiram Knowles, who had sat upon the Supreme Court of Montana when the case of United States v. Carr, supra, was decided. In that case Judge Knowles said:
“The purpose of the statute was undoubtedly to prevent the placing of whisky, or ardent or spirituous liquors, in such a place as would make it accessible to Indians. It was not the purpose of that statute to interfere in any manner with the commerce in spirituous liquors between sections of the country not Indian. The construction of that statute, which would allow the seizing of spirituous liquors found upon an Indian reservation without reference to the purposes in regard to which it came there, would prevent the transportation of such liquors from the East to the Pacific Coast on the line of the Northern Pacific Railroad. It would prevent such liquors from being transported to Montana, on the line of that road, or the Great Northern Road; for it is well known that all these roads traverse, before they reach the settled portions of Montana, Indian reservations. If the simple fact of the finding of such liquors within an Indian reservation, without license, is sufficient to make the same liable to forfeiture, and all conveyances in which the same may be found, then there is not a through passenger train on either the line of the Great Northern or Northern Pacific Railroads which would not be subject to seizure and forfeiture, under the above statute; for both carry, it is well known, more or less spirituous liquors across Indian reservations on the line of said roads. I do not think Congress in this statute contemplated any such result. For these reasons I hold that the proper construction of the above statute, as to the terms, ‘no ardent spirits shall he introduced, under any pretense, into the Indian country,’ is as follows: Whenever such liquors are taken into an Indian country, as tlicir place of destination or use, then they have been introduced into such country. In other words, when such liquors reach an Indian country, as the end of their journey, they have, within the meaning of that statute, been introduced into such country. It is not necessary to show that they were brought there for the purpose of sale to Indians or any one. The transportation of such liquors through an Indian country, between places outside the same, as an article of commerce, is not, within the meaning of that statute, introducing them into said country.”
Much of this opinion was erroneous under the subsequent decision in Clairmont v. United States, 225 U. S. 551, 32 Sup. Ct. 787, 56 L. Ed. 1201, heretofore referred to.
*561In United States v. Four Bottles Sour-Mash Whisky (D. C.) 90 Fed. 720, it is said:
“A stock of liquors is not introduced into the Indian country by being transported across an Indian reservation to a place whore the owner may lawfully dispose of it, and is not subject to seizure while in transit, nor after arrival at its place of destination.”
In United States v. Tadish, 211 Fed. 490, the District Court for Arizona held that evidence that a number of hunters passed through an Indian reservation with intoxicating liquors in their possession, presumptively for their own use, was insufficient to show the commission of the offense under the statute. That case is based upon the authority of United States v. Carr, 2 Mont. 234, and quotes it by saying that it was not intended—
“ ‘to prohibit the exploration or settlement of the public domain by persons who were citizens of the United States, * * * and might desire to carry with thum spirituous liquors for legitimate * * purposes,’ and it was held that Mi * * * such a. person passes through the Indian country with spirituous liquors in his possession, without any intent to dispose of the same * * * contrary to law, neither the liquor, nor any other species of property accompanying the same, are liable to seizure or forfeiture.’ ”
He then quotes the opinion in United States v. Four Bottles Sour-Mash Whisky, supra, as we have quoted it. He continues:
“It is evident from these cases that the mere physical presence of a person having liquor in his possession in the Indian country is not enough 1o constitute the offense denounced by the statute.”
Now let us see what was the condition of these defendants. By the Enabling Act for the admission of Oklahoma into the Union in the second subdivision of section 3, 34 Stats. 267, 269, the new state was required to provide in its Constitution an absolute prohibition of the manufacture, sale, barter, giving away, or otherwise furnishing of intoxicating liquors within those parts of said state now known as the Indian Territory and the Osage Indian Reservation for the period for 21 years. It is true this was not an independent act of Congress prohibiting such sale, but was an act of Congress providing as a condition precedent to the admission of the state into the Union that the Constitutional Convention in drafting a new state Constitution embrace a prohibition of the sale of liquors throughout the Osage Indian Reservation and in the town of Avant. Without assuming that the state of Oklahoma would not have enacted such a constitutional provision and statutes to enforce it without the intervention of Congress, Congress made such provision in pursuance of its early treaties with the Osage Indians a condition precedent to the admission of the state into the Union, and the state in all respects complied with this act of Congress. There has never been an hour when a sale of intoxicating liquor by a proprietor or manager of a joint in Avant was not illegal since the admission of the state, and the same was true for a long period anterior to the admission of the state into the Union.
Again by the Webb-Kenyon law (37 Stats. 699) the transportation of intoxicating liquors from one state to another for the purpose of sale in violation of the laws of that state is expressly prohibited.
*562These liquors were undoubtedly being transported under the evidence to Avant to l^e there sold in violation of tire laws of Oklahoma, and the transportation was in violation of the Webb-Kenyon law, which has recently been interpreted and construed by the Supreme Court of the United States in James Clark Distilling Co. v. Western Maryland Railway Co. et al., 242 U. S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326.
My Brethern are now about to construe rather than interpret the act of 1897 so that the hauling of liquors upon an Indian allotment and thereby clearly introducing into the Indian country in violation of the Enabling Act of the state of Oklahoma, of the Constitution and statutes of that state, and of the Webb-Kenyon law, shall not be construed to be an introduction into the Indian country, and thus turn these defendants free who have violated statute after statute of the United States. In this I cannot concur. I am content to abide with the decisions heretofore rendered that the transportation of liquors through an Indian reservation where the liquors are lawfully acquired to a place where they may be lawfully sold is not a violation of the spirit of the law against the introduction of liquors into the Indian country, but I cannot concur in holding that when defendants violated the plain letter of the act of January 30, 1897, by carrying liquors into the Indian country in a wagon,-their route being largely through allotments and therefore a part of the Indian country, the liquors not being in unbroken original packages, but open, so that distribution could be made along the route, and in fact was made, as in this case, with intent to deliver 'the residue of the liquor for sale at a place where such sale would be illegal, not by interpretation, but wholly by construction, an exception shall lie injected into the law in aid of the violation of the Enabling Act of Congress for the state of Oklahoma, the Constitution, and laws of Oklahoma and the Webb-Kenyon law.
I think the case should be affirmed.