concurring: It is the duty of the State courts to follow the decisions of the Supreme Court of the United States on questions relating to interstate commerce, whether in accordance with their views or not, and that Court held, prior to the Wilson Act of 1890, that intoxicating liquors were the legitimate subject of commerce between the States, and that the owner of such had the right to ship into another State, and sell in the original package, and denied to the State into which it was shipped the power to control or regulate such shipment by taxation or under its policy power. Leisy v. Hardin, 135 U. S., 100.
Because of this decisiou the Wilson Act was passed by Congress, which provides: “That all fermented, distilled, or other intoxicating liquors or liquids transported into any State or territory or remaining therein for use, consumption, sale, or storage therein shall, upon arrival in such State or Territory, be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein *562in original packages or otherwise.” And it was said of this act, in Delamater v. South Dakota, 205 U. S.: “It is settled by a line of decisions of this Court, that the purpose of the Wilson Act, as a regulation by Congress of interstate commerce, was to allow the States, as to intoxicating liquors, when the subject of suck commerce, to exert ampler power than could have been exercised before the enactment of the statute. In other words, that Congress, sedulous to prevent its exclusive right to regulate commerce from interfering with the power of the States over intoxicating liquor, by the "Wilson Act adopted a special rule enabling the States to extend their authority as to such liquor shipped from other 'States before it became commingled with the mass of other property in the State by a sale in the original package.”
The language of the act principally in debate were the words, “upon arrival in such State.”
Did they mean, after the liquors passed the boundary line of the State, or after they reached the place in the State to which they were shipped, or after they were delivered to the person to whom they were shipped?
“It has been held that the liquor had not 'arrived’ in the State, where it was seized in the State while being conveyed by the purchaser to his home from a point outside, the State, where he had bought it for his personal use (S. v. Holleyman, 55 S. C., 207); where it was in a railroad car standing at a siding and was still in -transit (S. v. Intoxicating Liquors, 94 Me., 335); or at any time before the arrival of the goods at their destination and their delivery to the consignee (Rhodes v. Iowa, 170 U. S., 412); 7 Cyc., 437n.
It was also held in Delamater v. South Dakota, supra, that under the Wilson Act the State could prevent an agent from soliciting orders for intoxicating liquors in the State, but the same Court held that c. o. d. shipments could not be regulated, controlled or prohibited by the State (Express Co. v. Iowa, 196 U. S., 133); and the injurious effects following this last decision induced Congress to pass the act of 1909, now section 239 of the Penal Code, which reads as follows: ’ “Any railroad company, éxpress company, or other common carrier, or any *563other person who, in connection with the transportation of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State, Territory, or District of the United States, or place noncontiguous to, but subject to the jurisdiction thereof, or from any foreign country into any State, Territory, or District of the United States, or place non-contiguous to, but subject to the jurisdiction thereof, shall collect the purchase price or any part thereof, before, on, or after delivery, from the consignee, or from any other person, or shall in any manner act as the agent of the buyer or seller of any such liquor, for the purpose of buying or selling or completing the sale thereof, saving only in the actual transportation and delivery of the same, shall be fined not more than $5,000.”
When this last act is considered in connection with its. history, Avhich manifests a purpose on the part of Congress to aid in the enforcement of the prohibition laws of the States, and with the language in the Express Company case above cited, which was decided before its enactment, I think, upon the facts appearing in the special verdict, the defendants are liable to indictment in the Federal courts under the Federal statute, although the use of the words “in connection with the transportation” may admit of a different construction.
In the Leisy case the Court held that intoxicating liquor could be shipped into a prohibition State and sold in the original package, and Congress then passed the Wilson Act saying that such liquors should be subject to the police regulations of the State “upon arrival in the State.” The Court then held that “arrival in the State” ivas not'complete until delivery to the consignee, and that the State had no right under the act to regulate c. o. d. shipments, saying, in answer to the contention of the State: “If upheld, the doctrine would deprive a citizen of one State of his right to order merchandise from another State at the risk of the seller as to delivery. It would prevent the citizen of one State from shipping into another unless he assumed the risk; it would subject contracts made by common carriers, and valid by the laws of the State where made, to the laws of another State; and it would remove from the protection of the interstate commerce clause all goods on consignment *564upon any condition as to delivery, express or implied. Besides, it would also render the commerce clause of tbe Constitution inoperative as to all that vast body of transactions by which the products of the country move in the channels of interstate commerce, by means of bills of lading to the shipper’s order, with drafts for the purchase price attached, and many other transactions essential to the freedom of commerce, by which the complete title to merchandise is postponed to the delivery thereof.” Express Co. v. Iowa, 196 U. S., 133.
Congress then passed the act, which is section 239 of the Pepal Code, which provides that any company or person shall be liable to indictment who, in connection with the transportation of -intoxicating liquor from one State to another, shall collect the purchase price or any part thereof, before, on, or after delivery to the consignee,' etc., or shall act as the agent of the buyer or seller for the purpose of completing the sale thereof, and it seems to me to have been done to meet the objections raised in the Express Company case, and to cover the case of a shipment “To order of' shipper, notify A. B.,” when the bill of lading is sent to a bank with draft attached, and the cashier collects the draft and delivers the bill of lading with knowledge that it covers a shipment of intoxicating liquor, as he has collected the purchase price before delivery, and has acted as agent of the seller in completing the sale.
If it were not for the language of the decisions, and particularly that quoted from the Express Company case, which substantially says that the State cannot, under its police power, regulate or control shipments “to order, notify,” and but for the obligation upon the State courts, under the Constitution of the United States, to adopt and recognize the decisions o.f the highest of the Federal courts upon questions affecting interstate commerce, I would also think the argument reasonable and sound that, upon' this shipment “to order, notify,” the liquors had arrived in this State, under the "Wilson Act, when they reached New Bern, and were then the property of the seller; that the sale was made in New Bern by the Richmond firm, and'was illegal, and that any one who aided and abetted in the sale was guilty as a principal.
*565If, however, this position was open to the State, I would concur in the conclusion that the .special verdict is defective and will not support a conviction.
The difference between a general and a special verdict is well illustrated by Kittelle’s case, 110 N. C., 560, and Bradley’s case, 132 N. C., 1060.
In each case the indictment- charges an illegal sale of intoxicating liquors.
In the Kittelle case there was a general verdict, and in the Bradley case a special verdict, as follows: £iThat the defendant sold one quart of whiskey to J. B. Constand, in Polk County, about one year prior to the finding of the bill, for which said Oonstand, in Polk County, paid the defendant 30. cents. If, upon the above facts, the court be of the opinion that the defendant is guilty, the jury so find; otherwise, not guilty.”
The general verdict was sustained on appeal, but the special verdict was set aside, the Court saying: “We are of the opinion that his Honor could not. have adjudged the defendant guilty upon the special verdict, and that he could not render any judgment thereon. The offense charged is selling liquor without having a license to do so. It is true that it has been the settled law in this State for more than fifty years that ‘proof of the existence of a license to retail must come from 'the defendant.’ S. v. Emery, 98 N. C., 668, and upon proof of sale, in the absence of such proof, the jury must find the defendant guilty. If, however, the jury shall, instead of returning a general verdict, find a special verdict, they should find every fact, if it exists, either by proof or presumption, essential to the defendant’s guilt; otherwise, the court should set the finding-aside and direct a venire de novo. S. v. Bloodworth, 94 N. C., 918; S. v. Corporation, 111 N. C., 661; S. v. Oakley, 103 N. C., 408.”
This declaration of the law is significant and bears directly upon the effect of the special verdict before us, because if a special verdict is fatally defective, which finds there was a sale, but fails to find there was no license, although it has'been held for fifty years that the burden of proof is on the. defendant to prove the existence of a license, and the jury must find him *566guilty, in tbe absence of sucb proof, there must be a finding- as to knowledge, wben tbat is a material element of tbe offense.
Let us apply this principle. Tbe special verdict is not based on tbe first count in tbe bill of indictment, charging a sale to some party to tbe jurors unknown, because it so says, and it was known from tbe beginning of tbe transaction, tbat tbe sale was to Carl Spencer.
He ordered tbe whiskey, bis name was on tbe bill of lading, bis uncle notified tbe defendant who Carl Spencer was, and Carl Spencer paid tbe draft and received tbe bill of lading and tbe whiskey.
Tbe second count is drawn under section 3524 of tbe Revisal, which, by its terms, applies only. to dealers in intoxicating liquors who sell to unmarried minors, knowing sucb person to be under tbe age of 21 years.
It is conceded tbat tbe defendant is not a dealer, and cannot be guilty under tbe second count, except as an aider and' abettor. Can be be convicted on tbe special verdict as an aider and abettor of Hatke & Co. in making an illegal sale? This depends on the guilt of Hatke & Co., because if Hatke & Co. are not guilty on tbe findings of tbe special verdict, Fisher cannot be guilty of aiding and abetting Hatke & Co. to violate tbe law, £fnd when we turn to tbe special verdict, there is no finding tbat Hatke & Co. bad knowledge tbat Spencer was under 21 years of age.
No question is raised -by tbe appeal as to tbe sufficiency of tbe indictment, nor is tbe doctrine in tbe Kittelle case involved, and as was said by Chief Justice Clark in bis concurring opinion in S. v. Hanner, 143 N. C., 637: “In a special verdict, tbe court is not at liberty to infer anything not found.”