dissenting: The public policy of a State is declared, ordinarily, by its Legislature, sometimes by a Convention in framing its Constitution, and .sometimes by a Referendum, to the people at the ballot box. It was in the latter method that Prohibition was declared to be the public policy of this State. It has, therefore, the dignity of a constitutional provision, though it is not in the Constitution.
The statute now in question was adopted to carry out and make more effective this policy. The violation of the statute by intoxicating liquors being brought across the State line from Virginia became notorious, and it was utterly impossible to enforce the law unless this were prevented. Hence the enactment of a statute not merely punishing the individual who should thus violate the law, but forfeiting the automobile or other conveyance by which the liquor was brought in. This has long been the policy of the United States Government in dealing with illicit distillery and sale. Property thus illegally used would be forfeit-able at common law if so facto without a statute.
The material parts of chapter 197, Public Laws 1915, i. e., sections 1 and 3, read as follows: “If any person shall have in his possession any spirituous liquors in violation of any State law now existing, the sheriff or other officer of any county, city, or town who shall seize such liquors as provided by chapter 44, Public Laws 1913, or by any other authority provided by law, is hereby authorized and required to seize and take into his custody any automobile used in con*105veying, concealing, or removing such, spirituous liquors, and safely keep the same until the guilt or innocence of the defendant has been determined upon his said trial for the violation of any such law making it unlawful to so keep in his possession any spirituous liquors, and upon. conviction of a violation of said law said defendant shall forfeit and lose all right, title, and interest in and to the property so seized; and it shall be the duty of the sheriff having in his possession said automobile to advertise and sell same under the laws governing the sale of personal property under execution. The proceeds derived from the sale of such property after paying for the reasonable expenses of such sale shall be paid by the sheriff to the county treasurer, and be applied by the treasurer to the credit of the public school fund of the county.” This act was passed by the Legislature by virtue of the police power vested in it, and is in analogy to those statutes authorizing police officers to summarily destroy gaming tables, etc. (sections 3720, 3722, and 3723 of the Revisal), and authorizing the fish commissioner to seize and sell all nets setting in violation of the fishing laws.
The United States Government began stocking our waters with young fish, which after a definite period return to the rivers in which they originate. Certain parties adopted the custom of setting their nets in such a way as to prevent the return of the fish up the rivers, and thus confiscated to their own use the benefits which the Government had intended for the public. To prevent this the State forbade the nets being thus used, and provided as a part of the -penalty the forfeiture of the nets, using almost exactly the same words as in section 2 of this statute, that the officers should “seize and remove all nets or other appliances setting or being used in violation of this act, sell the same at public auction, and apply proceeds of sale to payment of costs and expenses of such removal, and pay any balance remaining to the school fund of a county nearest to where the offense is committed.” This Court sustained this statute in Daniels v. Homer, 139 N. C., 219, which has since been cited as authority, Daniels v. Homer, 146 N. C., 275; S. v. Blake, 157 N. C., 609. Daniels v. Homer, supra, was based upon Lawton v. Steele, 119 N. Y., 226, affirmed on writ of error, 152 U. S., 133, which has ever since been held as authority.
Indeed, the plaintiff does not deny the right of the State to confiscate conveyances used for this illegal purpose, but rests his case upon the wording of the statute. The statute is almost a verbatim copy of section 2 of the statute construed in Daniels v. Homer and of the Federal statute on the subject. Laws 1915, ch. 197, sec. 2, after providing that “the sheriff or other officer shall seize the forbidden liquor,” provides that if he fail to capture or arrest the owner, or party in possession, so using the vessel, boat, automobile, horse, and so forth, he shall advertise for the owners to come forward and institute proper proceedings to secure *106possession of said property, and “upon tbe failure of sucb person to come forward — if an individual, in person — and make sucb claim witbin thirty days after sucb notice shall have appeared in at least one issue ■ of some newspaper published in tbe county where sucb seizure was made, and after sucb notice and time tbe sheriff shall advertise sucb property so seized for sale, and sell as provided in section 1 of this act,” and section 3 provides that tbe net proceeds derived from tbe sale of such property shall be paid into the county treasury to tbe credit of tbe public school fund.
Tbe parties engaged in bringing tbe liquor across tbe State line were convicted and did not appeal, and tbe automobile was ordered confiscated by tbe trial court as provided by tbe law above, and was advertised for sale at public auction. Tbe plaintiffs now bring this action of claim and'delivery of tbe automobile against tbe defendant, who bolds tbe same by order of a court of competent jurisdiction, on tbe ground that they bold a mortgage thereon. Tbe plaintiffs cannot thus get possession of tbe property, which is in custodia, legis. Santa Felia v. Belton, 170 N. C., 112, which is exactly in point. Tbe remedy was by motion in tbe cause. There tbe liquor was confiscated, and it was held tbe owner could not recover it by claim and delivery from tbe officer.
If a party engaged in tbe illegal traffic of bringing intoxicating liquors across tbe State line can protect himself by putting a mortgage on tbe conveyance or team used by him, then this device will be a complete nullification of that part of tbe statute which tbe General Assembly enacted for its prevention by confiscating tbe conveyance or team used.
Tbe same defense as here has often been attempted to be set up in tbe Federal Court in cases of tbe confiscation of conveyances and teams used for carrying liquors on which tbe tax bad not been paid. In U. S. v. Two Bay Mules, 36 Fed., 84, Dick, J., in tbe United States 'District Court of North Carolina held that “Animals and conveyances used in removing spirituous liquors to evade payment of tbe tax are subject to be forfeited, though used by a person who bad hired them from tbe owner representing that they would be used for another purpose,” tbe Court saying: “When property becomes liable to forfeiture, under tbe positive provisions of a statute, owners who have in no way participated in the frauds which caused tbe forfeiture must seek redress from tbe wrong-doers who unlawfully u.se tbe property with which they were intrusted; or they can apply to tbe officer of tbe Government invested with tbe authority to remit forfeitures.” Judge Diclc then went on to give tbe reason as follows: “This proceeding is in rem; tbe mules and wagon are considered tbe offenders, and are liable to- forfeiture without any regard whatsoever to tbe personal misconduct or responsibility of tbe owner.”
*107Judge Dick cited as authority Distillery v. U. S., 96 U. S., 395, which fully sustained his views and which cited divers cases. In that case the United States Supreme Court held that where the owner of property leased it for the purpose of distilling, which was a lawful purpose, but the lessee in carrying on the business of the distillery defrauded the revenue, though this was unknown to the owner, the distillery and the property connected therewith was forfeited to the Government. This ease cites many others and has been cited by many since, to be found in 8 Eose’s Notes, 458, and later cases in the Supplements to Eose’s Notes.
In U. S. v. One Black Horse, 129 Fed., 167, the Court held that a vehicle and horse owned and -let by a liveryman, used in smuggling liquor across the line into the United States was subject to seizure and forfeiture, though the liveryman who owned them had no knowledge of the purpose for which the team and vehicle was to be used. This case cites U. 8. v. Two Bay Mules, supra, saying: “In this ease, as in that, the redress of the innocent claimant must be from the wrong-doer himself, or by application to the officers of the Government invested with authority to remit forfeitures.”
In U. S. v. Two Horses, Fed. Cases, No. 16578, it was held: “Knowledge or intent on the part of the owner of a conveyance used.in transporting spirits subject to tax that are being removed contrary to law is not required to be shown in order to a forfeiture of such conveyance,” citing many eases to the same effect. Among others, U. S. v. Distillery, Fed. Cases, No. 14963, in which Judge Woodruff remarked: “It is expected that the owner of property will see to the use that is made of it, at his peril.”
The same reasoning was used in Daniels v. Homer, 139 N. C., 223, which referred to the common law under which any personal chattel that even accidentally caused the death of a human being was forfeited and sold and the proceeds distributed to the poor, or like a deodand under which a weapon used in killing a human being was likewise forfeited, whether it belonged to the murderer or not, 1 Bl. Com., 300, or the case of a town ordinance which authorized hogs running at large to be impounded and sold for the penalty, Rose v. Hardie, 98 N. C., 44; and the ordinance which authorized a dog to be killed for failure to pay tax, Mowery v. Salisbury, 82 N. C., 175.
Among many State eases is Boggs v. Commonwealth, 76 Va., 994, sustaining the forfeiture of a vessel whose lessee violated the oyster law of that State, though without the knowledge or consent of the owner.
The law is thus summed up in 22 Cyc., 1643 : “All personal property employed in the business of illicit distilling is subject to forfeiture, irrespective of ownership.” In same volume, at p. 1681, it is said: “In addition to the penalties imposed upon persons who remove or conceal *108goods upon which the tax has not been paid, with intent to defraud, all conveyances and animals used in the accomplishment of this unlawful purpose are forfeitable. Knowledge or intent on the part of the owner of a conveyance to use it illegally is not required to be shown. The conveyance and animals are considered the offenders, and are liable without regard to the misconduct or responsibility of the owner. Innocent owners of property forfeited must obtain redress from those who were intrusted with the property and use it unlawfully or by application to the officers of the Government who have been invested with authority to remit forfeitures,” citing many authorities in the notes.
The authorities are thus practically uniform that when property is used in violation of law it is subject to forfeiture, although the owner had no knowledge of the purpose. The procéeding is in rem against the property which has been devoted to an illegal purpose. These decisions are nearly all in cases where the owner had rented the property to the person thus using it illegally, and without knowledge on the part of the owner that it was to be so used. The case is much stronger here because the owner of the property was the violator of the law himself; and the plaintiff had merely a claim on it as a security for debt. The right of the Government to the forfeiture against the owner is prior to the lien of the mortgagee, just as a tax due upon the property takes priority of a mortgage. The Government’s right to forfeit property, like its right to the tax, is against the property, and since the forfeiture takes priority over an innocent lessor, it is certainly good against a mortgagee who leaves it in the hands of the owner himself, who has devoted it to an illegal purpose. If the mortgagee can thus protect conveyances used to violate the law, then confiscation would become a nullity by this easy device of always using property on which a mortgage or lien has been given to some one else.
As has been said by the United States Supreme Court, supra, and in the other cases above cited, “The recourse of the owner whose property is thus forfeited is against the wrong-doer.” It is his own fault that he has leased it to a person who has used it in defiance of the law. For a stronger reason the mortgagee here cannot claim exemption of the property from liability to the State, for he could have taken possession of the property under his mortgage, and it was by his consent that the mortgagor remained in possession and was enabled to use it for an unlawful purpose. Practically, the mortgagor in possession was the agent of the mortgagee, and the mortgaged property is liable for the illegal use made of it.