DISSENTING OPINION
Arterburn, J.The defendant was charged in Marion Criminal Court, Division 1, with possession and sale of certain obscene, lewd and indecent printed matter and photographs under Burns’ §10-2803, 1960 Cum. Supp. The trial court sustained a motion to quash the affidavit on the ground that the statute was unconstitutional because it did not require any knowledge of the nature and contents of the printed matter or scienter by the one possessing and selling such obscene matter. The appellee was thereupon discharged by the court, and the State of Indiana prosecutes this appeal.
*288The statute is question does not use the words “knowingly” or “wilfully” or similar words in defining the offense. It is contended it thereby imposes a “strict liability.”1
The decision of the trial court was based upon the recent case of Smith v. California (1959), 361 U. S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205. In that case the right of the state to legislate in the area of obscenity was reaffirmed, but it was held that such legislation cannot eleminate the requirement of a scienter of guilt on the part of the one charged with the alleged crime. The California Supreme Court had interpreted a statute similar to ours in Indiana as being one of strict liability, obviating the necessity of showing any guilty knowledge. Such legislation, the United States Supreme Court *289opined, infringed upon the constitutional guarantee of freedom of speech.
First and Fourteenth Amendments to the Constitution of the United States.
Justice Brennan in that case said in part:
“. . . By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public’s access to constitutionally protected matter. . . .” 361 U. S. at p. 153.
and the court quotes with approval the statement:
“. . . ‘Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience. The King v. Ewart, 25 NZLR 709; 729, (CA) . . . .’” 361 U. S. at p. 153.
In that case Judge Brennan attempts a rationalization between the strict liability imposed under the Pure Food and Drug Acts which have been held constitutional, and that in the case of obscene printed matter and pictures. He says:
“. . . The usual rationale for such statutes is that the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors — in fact an absolute standard which will not hear the distributor’s plea as to the amount of care he has used. Cf. United States v. Balint, 258 U. S. 250, 252-254, 66 L. ed. 604, 607, 42 S. Ct. 301. His ignorance of the character of the food is irrelevant. There is no specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of *290the press stand in the way of imposing a similar requirement on the bookseller. . . (Our italics.)
This rationale is difficult for us to follow. It first assumes that constitutional provisions protecting property, contracts and personal liberty are not as sacred or precious as that of freedom of speech. This assumption further gives no consideration to the constitutional exercise of police power and the protection of the public morals as well as health. In other words, it defines a freedom of speech far beyond the limitations which surround other constitutional guarantees of personal liberty, property and contract, all of which may be cut down by any reasonable legislation for the protection of the public under the police powers.2
In Roth v. United States (1957), 354 U. S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (where the statute con*291tained the element of scienter) the United States Supreme Court had previously said:
“We hold that obscenity is not within the area of constitutionally protected speech or press.”
To hold that the police power can only be exercised against obscene, lewd and indecent matter where there is a scienter or guilty knowledge, but that it may be exercised against impure foods and drugs on a strict liability basis without a guilty knowledge, is to make a distinction which is not warranted under any wording of the Constitution of the United States. If strict liability is permissible under the constitution, then it is a matter of legislative policy as to the cases in which it should be invoked. The holding places a court in the function of legislating.
We point out that the Smith Case for some reason gives no consideration to the effect upon the Federal Communications Act, which regulates the licensing and number of radio and television stations and to some extent what they may program and broadcast. 47 U. S. C. §151. This act fixes a strict liability and provides that a license may be suspended where profane and obscene language or meaning are used. The distinction is made plain since the section immediately following requires the element of scienter.
■The act authorized the suspension of the license of any operator who:
“(D) . . . has transmitted superfluous radio communications or signals or communications containing profane or obscene words, language, or meaning, or has knowingly transmitted—
“(1) false or deceptive signals or communications, or . . .” (Our italics.) 47 U. S. C. §303 (m) (1) (D) ; Radio Comm’n v. Nelson Bros. Co. (1933), 289 U. S. 266, 53 S. Ct. 627, 77 L. Ed. *2921166; Trinity Methodist Church, South v. Federal Radio Com’n (1932), 61 App. D. C. 311, 62 F. (2d) 850.
Radio and television communication are regulated and limited as to the number of broadcasting stations, the character and type of programs and in various other aspects. Were it not so, this field would be in complete chaos within a short time. Interference would be so complete that little, if any, effective communication would result. It is contended that Congress, under the power to regulate commerce among the states, has a right thus to infringe upon freedom of speech to a degree that far transcends by comparison the slight inconvenience placed upon a bookseller to assure himself that the materials he offers for sale are not obscene, lewd and indecent. At the same time the Supreme Court rationalizes that the police power may place on a drug or food dealer the burden of informing himself as to the purity of his product for protection of the public health.
Under the Federal Communications Act the United States Supreme Court has held that the FCC may use as a standard in determining what may or may not be broadcast, the Criminal Code, which makes broadcasting of information concerning lotteries a crime, as well as the broadcasting of obscene and profane matter. The words of scienter “knowingly” or “wilfully” are omitted from the criminal statute. 18 U.S.C.A. §§1464 and 1304.
In approving this legislation the United States Supreme Court said in a case involving “give away” programs:
“Like the court below, we have no doubt that the Commission, concurrently with the Department of Justice, has the power to enforce Section 1304. Indeed, the Commission would be remiss in its du*293ties if it failed, in the exercise of its licensing authority, to aid in implementing the statute, either by a general rule or by individual decisions.” Federal Commun. Com’n v. American Broad. Co. (1953), 347 U. S. 284, 74 S. Ct. 593, 98 L. Ed. 699.
If freedom of speech regarding lotteries, profane and obscene matter may be restricted in radio and television broadcasting without a scienter, then certainly the same matter may be restricted in the hands of a bookseller.3
Lewdness and obscenity are not within the area of constitutionally protected speech, since such matter is utterly without redeeming social features. Roth v. United States (1957), 354 U. S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498. The police power may be exercised in the restraining of recognized social evils to the same extent as the interstate commerce clause may be utilized.
The Constitution does not say that the commerce clause of the Constitution may restrict to a greater degree free speech than does the police power (reserved to the states) regardless of all the semantics employed. The exercise of police power is just as constitutional and as potent as the exercise of the power to regulate interstate commerce. Neither has any greater or lesser right to infringe upon free speech. We fail to follow the tortuous path by which different results are reached.
Police power many times cuts down the unlimited areas of personal liberty, including freedom of speech and other constitutional guarantees. This is done to protect society and social interests. Constitutional guarantees must yield to “reasonable” exercise of the *294police power. It is a constitutional principle too long established to question.
No right, constitutional, fundamental or otherwise, is absolute and unlimited in this society of ours. In the nature of things, no rights can be absolute and unlimited — not even life and personal liberty — if we are to live with our neighbors. We are restrained even on the streets and on the highways in our liberties for the benefit of all. The police power intervenes in our daily relations with others to eliminate friction and in order that the fundamental rights of one may not infringe upon the fundamental rights of another member of such society. Absolute and unlimited freedom for everyone in a society is only the reverse side of the coin of anarchy. No government of law and order would be possible under the doctrine of unlimited freedoms. Speech cannot in an organized society be totally unrestrained.
Is the judiciary so omnipotent that it can assume the legislative policy-making function and say what, under the police power is the best legislation for a particular locality, or that it is in the “public interest” to protect the stomach from rotten food, but not the mind from rotten obscenity and indecency? Should the judiciary or the legislature say that physical health is more important than mental health?
Is there a greater danger to freedom of speech in placing upon the bookseller the responsibility of inspecting and knowing what he offers to the public than in placing upon a broadcaster the responsibility for profanity, lewdness and obscenity over the radio or on the television screen, which readily reach the young and impressionable? The Smith Case manifests such inconsistency and an infringement upon the legislative function.
*295There has been considerable recent public agitation over sex crimes. Is this a matter of concern for the courts or the legislature? May not a legislature determine that sexual crimes are increasing and therefore, as a matter of public policy, decide that strong and strict measures (through legislation fixing a strict liability) are necessary to reduce obscene, lewd and indecent matter which encourages sex crimes?
I do not believe the judiciary is the sole repository of wisdom and good judgment, but rather that a goodly portion of such talent and ability was reserved for use by the legislative branches of the government under the constitutional functions of determining what is best for the people. Although I cannot always agree with the wisdom of such legislative action, I will still fight for the right of the legislative branch of the government to do what it thinks best within its constitutional function of law making. It is set up for that purpose because it is more representative of the will of the people in a democratic form of government, than is the judiciary. It is not within the province of the judiciary to determine whether or not the “means for achieving the same basic purpose” in legislation could have been accomplished by “less drastic means.”4 Such a standard for constitutional measurements of legislation turns over to the court the discretion, judgment and wisdom reposed with the legislative branch of government under the constitution.
If the imposition of strict liability is constitutional (as the United States Supreme Court has held in the Pure Food and Drug Act Cases) then it is a matter for the legislature rather than the courts to determine *296when, as a matter of policy, public welfare requires the imposition of such strict measures.
The United States Constitution says:
“This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, . . .” (Our italics.) Article VI, cl. 2, United States Constitution.
It is to be noted that this constitutional provision says that the judges “in every State shall be bound” by the United States Constitution, as well as the respective state constitution under which they serve. We state judges take the same oath to uphold the Constitution of the United States as do members of the United States Supreme Court. We have the same obligation to uphold and interpret that Constitution. Under that mandate we would be derelict in our duty should we fail to state our interpretation of the provisions of the Constitution of the United States and to “be bound thereby.”
There is nothing commendable or honorable, after taking an oath, to uphold the Constitution of the United States and of the State of Indiana in submitting meekly to what appears to be an obvious inconsistent encroachment upon the rights of local self-government guaranteed by the United States Constitution under the powers reserved to the states. Under my oath of office I refuse to be carried along with a philosophy which ignores specific provisions of the United States Constitution with reference to powers reserved to the states, including the police power to restrict the sale of obscene and indecent matter within its borders.
We hold that the Constitution of the United States does not prohibit the reasonable exercise of the police power of a state in restricting the sale of obscene and *297indecent matter. It is a matter of legislative policy to determine whether or not conditions warrant the imposition of strict liability in the eradication of evils which are injurious to the public health or morals. The constitution does not concern itself with the question of strict liability. If the imposition of strict liability is constitutional in some cases, then we find nothng prohibiting its imposition in other cases where the legislature sees fit.
What we have said regarding the meaning of the Constitution of the United States is likewise true of the Constitution of the State of Indiana which states:
“No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.” (Our italics.) Article 1, §9, Constitution of Indiana.
The Constitution of our State recognizes a reasonable limitation upon the freedom of speech and the responsibility of a person with regard thereto. Apparently the framers of the Indiana Constitution had no real concern about censorship growing out of a reasonable restraint to avoid the abuse from an unlimited use of such right.5
*298The trial court erred in sustaining the motion to quash the charge.
Note. — Reported in 172 N. E. 2d 45.
. Strict liability has been justified on the ground that it is, in effect, the imposition of a burden requiring- the highest degree of care on the part of certain persons engaged in activities closely connected with the public welfare. The rationalization is that a breach of such law is evidence of criminal negligence and failure to use care in the public interest. Similar principles exist in certain actions imposing strict liability in tort.
_ Strict liability has been applied not only to pure food and drug distribution and traffic violations, but also to the selling of liquor to minors and to sex offenses against minors under a certain age. Ignorance of certain facts and even of the law where there is no guilty knowledge are cases of strict liability. Wharton’s Criminal Law (Anderson), Yol. 1, §§157, 158, 159, 160, 161 -and 162, pp. 381-390.
Strict liability is not simply an imposition of liability without fault, but rather the imposition of liability where there is a strong presumption of fault resulting from negligence or an unwillingness to learn the facts, which a normal person should know in connection with the transaction involving the public welfare.
See also: Hall, Géneral Principles of Criminal Law, pp. 280, 299. “. . . The view generally entertained is that the distribution of impure or adulterated food for consumption is an act perilous to human life and health, and cannot be made innocent and harmless by the want of knowledge or by the good faith of the seller. It is the act itself, not the intent, that determines the guilt for the actual harm to the public is the same in one case as in the other. A restaurant keeper who unknowingly serves adulterated food in his place of business is responsible under the statutes penalizing the sale of adulterated articles.” Wharton’s Criminal Law (Anderson), Vol. 3, Sec. 1066, p. 283.
. See the more recent cases of Shelton v. Tucker; Carr v. Young (December 12, 1960), — U. S. —, 81 S. Ct. 247, 5 L. Ed. 2d 231, where the right of a local school board to inquire into the organizations to which applicants to teach school belonged or were affiliated, was held to be under some theory of free speech an infringement thereon. There the court, assuming to determine the wisdom of legislative policy, said: “In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose.” We ask, who under the constitution has the function and power to determine whether the “means for achieving the same basic purpose” shall be “less drastic”? May the judiciary take over such policy-making functions of a legislative body? Judges should always guard against letting their personal views override legal logic.
The expansion by the United States Supreme Court of the clause “to regulate commerce . . . among the several states” (Art. I, §8(3) U. S. Const.) is amazing to behold, since the court never seemed to consider in testing congressional legislation in that field whether the “means for achieving the same basic purpose” could not have been accomplished by “less drastic means.” Darr v. Mut. Life Ins. Co. of N. Y. (1948), 169 F. 2d 262, Cert. Den. 335 U. S. 871, 69 S. Ct. 166, 93 L. Ed. 415 (Elevator Operators and Janitors); Martino v. Michigan Window Cleaning Co. (1945), 327 U. S. 173, 665 S. Ct. 379, 90 L. Ed. 603 (Window Cleaning and Painting).
. For a collection of cases on control of obscenity in radio and television, see: Emerson and Hober, Political and Civil Rights in the U. S. [2 Ed., Vol. 2, p. 941].
. Shelton v. Tucker; Carr v. Young (December 12, 1960) — U. S. —, 81 S. Ct. 247, 5 L. Ed. 2d 231.
. “The guarantee gives immunity from liability from no form of social control which is a proper exercise of the police power as understood by the Supreme Court of the United States. In other words, just as the Supreme Court controls what the courts may enjoin before publication so it controls what the legislatures may make punishable after publication. This is the doctrine of the Supreme Court so far as concerns the Fourteenth Amendment. That makes freedom of speech and of the press vary as due process of law varies. In its interpretation of the due process clause the Supreme Court has not adopted the meaning which the words ‘due process of law’ had at the time of the adoption of the constitutional provisions but whatever meaning it thinks is reasonable at the time of the decision of each particular case.” Willis, Hugh, Freedom of Speech And Of The Press, 4 Ind. L. J. 445.