dissenting: I dissent from the main opinion in its holding that (a) Atlantic States Motor Lines, Inc., has any legal right to intervene in this criminal proceeding, either before or after the conviction of Gordon, since the statute does not provide for such procedure; or (b) if it be conceded, for the purpose of discussion only, that it had such right, in the holding that it has not already exercised it or had an opportunity to exercise it; or (c) further, that the petition shows any merit to sustain the intervention. My conclusion is that this, the second appeal of the carrier, presents a question of law only and that remand of the ease for further hearing is unwarranted.
The significance of any opinion rendered in this case will not be clear without further information as to the proceedings already taken. The importance of the case demands a statement of its history.
John Gordon was tried at the November Criminal Term, 1943, of Wake County Superior Court upon a warrant charging him with: (1) Unlawful possession of intoxicating liquor; (2) unlawful possession of intoxicating liquor for the purpose of being sold, given away, or otherwise disposed of; and (3) unlawful transportation of intoxicating liquor. He was convicted on all three counts. The evidence fully described the liquor in his possession- — 579 cases- — and its disposition in the truck.
At the trial the petitioner in this proceeding asked to intervene in the trial, claiming the liquor and anticipating the confiscation thereof in the event of Gordon’s conviction, and this was refused. Counsel for this intervener, however, did participate in the trial and brought into the record voluminous evidence, which may be found in the record in that case.
*252Gordon appealed bis case to tbis Court, and tbe Court found no error. 224 N. C., 304. At tbe same time, tbe present petitioner appealed from tbe order refusing intervention and was beard bere. Tbe appeal was dismissed. S. v. Gordon, supra.
Tbe opinion of tbe Court witb reference to tbe proposed intervention, by Justice Barnhill, is as follows:
“Whether tbis provision (G. S., 18-6, G. S., 18-13, G. S., 18-48) is in tbe nature of a forfeiture for crime or a confiscation as contraband is not presented for decision on tbis record. Upon its determination tbe rig'hts of tbe petitioner largely depend. 30 Am. Jur., 541. As tbe question has not been decided by tbis Court, it should have full opportunity to be beard. Tbis right tbe court below was careful to preserve. Petitioner was granted a bearing and opportunity to present its claim. But tbe bearing has not been bad.”
Tbe reference in tbis opinion is to tbe order of Judge Burgwyn made at tbe same time sentence was pronounced upon Gordon at bis trial by which tbe whiskey was confiscated and those interested were permitted to assert their claims.
Before tbe opinion was banded down in that case—S. v. Gordon, supra—tbe Atlantic States Motor Lines, Inc., filed a so-called petition of intervention before Judge Burgwyn, presiding at tbe November, 1944, Civil Term of Wake Superior Court, setting up certain claims, as tbe innocent owner of tbe whiskey found in tbe possession of Gordon and confiscated by tbe former order, and making tbe entire record in tbe criminal case against Gordon an exhibit. This petition purports to be filed under Judge Burgwyn’s order.
Thereafter, there' was a petition filed by Chatham County, North Carolina, demanding that tbe confiscated liquor be sold as provided by tbe statute — eh. 310, Public Laws of 1941—see G. S., 18-13, supra—and tbe proceeds turned over to tbe School Fund of Chatham County.
At tbe bearing upon these petitions, tbe Atlantic States Motor Lines, Inc., demanded judgment by default upon its petition, on tbe theory that it was tbe duty of tbe intervener, Chatham County, or some undesig-nated person or agency, to deny, or be subject to judgment pro confesso, and tendered judgment. Judge Burgwyn declined to sign tbe judgment.
Tbe petitioner did not produce or offer any evidence whatever in support of its petition, but apparently bad relied upon its motion for a default judgment. Tbe petitioner has not anywhere in tbe record suggested that it was denied a bearing before Judge Burgwyn, nor did it, in its exception to tbe judgment, point out any error it claimed, other than refusal of its motion for judgment by default on its petition.
However, Judge Burgwyn did find tbe facts in tbe case, substantially as follows:
*253“About 3 O’clock P. M., on the 10th day of July, 1943 a large truck was seen by the law enforcement officers of Wake County parked in front of Otis Mills’ service station on Highway #64 in White Oak Township, Wake County. No one was in the truck at that time. In about ten minutes the defendant, John Gordon, got in the truck and drove it in a Westerly direction along Highway #64, and Otis Mills, the operator of Mills Service Station, drove off immediately behind the truck in a Ford Coupe automobile. The truck and automobile went down the highway about 300 yards in a ravine, and pulled off on the shoulder of the road, and the driver of both the truck and the car got out and after seeing one of the officers got into their respective vehicles, and proceeded in a Westerly direction on Highway #64. The officers followed the vehicles, and found the truck parked on the shoulder of the highway headed in a Westerly direction, and the automobile parked on the shoulder of the road headed in an Easterly direction immediately in the rear of the truck and about two or three feet distance from it. When the officers arrived Mills was on the ground and Gordon, the driver of the truck, was in the truck, ■ and three cases of whiskey had been removed from the lines in which it was packed, and was stacked on top of each other near the rear door of the truck, and on one case appeared the following figures:
36
'7
GÑJ lO 03
CO CO
285
The truck contained 579 cases of whiskey labeled 'Calvert’s Reserve’ and 'Calvert’s Special,’ all in pint, half-pint and one-fifth gallon bottles. The truck was the tractor trailer type, the trailer being enclosed with doors in the rear which were without lock or fastening. There was no seal on the truck, and no Interstate Commerce license number in view.”
Here follows transcript of certain papérs found in the truck. The finding of facts continues:
“The truck loaded with whiskey arrived at M. C. Garner’s truck terminal in the City of Raleigh in the early morning of July 10, 1943 in charge of John Gordon. Upon arrival in Raleigh the driver of the truck, John Gordon, borrowed the automobile of M. C. Garner, and drove to Otis Mills’ Service Station, about 17 miles from the City of Raleigh, on Highway #64, and after a conference with Mills returned to the City of Raleigh, and drove the truck loaded with the whiskey to Mills Service Station when he had another conference with Mills, and *254at which time he told him that he had a load of whiskey, and if he would go down the road he would let him have some of it.
“None of the packages of liquor were anywhere labeled to show the name of the consignee. The whiskey was not being transported to or from a North Carolina A. B. 0. Store. No North Carolina A. B. C. stamps were attached to any of the containers of the whiskey.”
Thereupon, the court ordered that the whiskey be confiscated in accordance with the former order of the court, and retained the cause for a determination of the rights of the Board of Education of Wake County and the Board of Education of Chatham County to the proceeds derived from the sale of the whiskey which had been ordered sold. The inter-vener, Atlantic States Motor Lines, Inc., appealed from this order, basing its appeal on exception to the refusal of its motion for a default judgment, and upon the invalidity of the judgment upon the facts found.
Before proceeding further with the discussion, I wish to say as pointedly as I know how that if the Motor Company was entitled to any hearing by an intervention order, such as was originally entered in this cause, it has had it, with a full opportunity to present to the court any evidence it may have had in support of its claim; and there is not the slightest suggestion in the record that it was denied a full hearing. The appeal, if it has any place at all in our procedure, brings up a question of law only to be decided in this Court.
I make no apology for the space I may have to occupy in discussing this case — one which I consider of great and immediate importance to the public — but will be as brief as the circumstances permit.
I. The statute, in obedience to which the lower court undertook to confiscate the liquor possessed and transported by Gordon contrary to law — G. S., 18-6 — is copied from the National Prohibition, or Volstead, Act of similar import. It makes no provision for a hearing with respect to intoxicating liquor confiscated by the court because of its possession or transportation contrary to state law, although it does provide for a hearing before condemnation of innocuous property used in the transportation. The omission is intentional, deliberate. It is based on the universally recognized fact that intoxicating liquors passing into illegitimate channels are a nuisance, a menace to society, and where the state provides confiscation, no property right can be asserted in them against the superior and often exigent demands of the public welfare. In other words, intoxicating liquor, when possessed or transported contrary to law, loses its character as property. Ziffrin v. Reeves, 308 U. S., 132, 84 L. Ed., 128, loc. cit. L. Ed., p. 136, in considering a similar law and a factual situation like that presented here, observes: “Property rights ■in intoxicants depend on state laws and cease if the liquor becomes contraband.”
*255The statutes of many states, including ours, expressly deprive contraband liquor, in the sense I have described, of its character as property. G. S., 18-4. So did the National Prohibition Act. U. S. C. A., Title 27, see. 39. Nevertheless, any statute which summarily confiscates intoxicating liquor upon conviction of a person unlawfully possessing or transporting it has that effect.
The confiscatory feature of the law was not affected by the enactment of the Beverage Control Act as we now have it, although some of the features of the more recent law are held to be State-wide. S. v. Davis, 214 N. C., 787, 1 S. E. (2d), 104; S. v. Carpenter, 215 N. C., 635, 3 S. E. (2d), 34.
Cases cited in intervener’s brief bearing on the question of due process and want of notice and hearing are too general for application to the particular situation presented in this case.
Similar provisions of the law have been uniformly upheld as constitutional and valid by the courts of many states and by the Supreme Court of the United States.
“An excellent illustration of the extent of the power of the state, consistent with due process of law, to provide for the summary destruction of property declared by statute to be illegal is found in the case of intoxicating liquors . . . Liquors brought for sale into a district in which sale is prohibited may be summarily seized and destroyed without compensation.” 12 Am. Jur., Constitutional Law, sec. 681; 30 Am. Jur., Intoxicating Liquors, sec. 554.
In Sentell v. New Orleans & C. R. Co., 166 U. S., 698, 705, 41 L. Ed., 1169, 1172, it is said: “It is true that under the 14th Amendment no state can deprive a person of his life, liberty, or property without due process of law; but in determining what is due process of law we are bound to consider the nature of the property, the necessity for its sacrifice, and the extent to which it has heretofore been regarded as within the police power. So far as property is inoffensive or harmless, it can only be condemned or destroyed by legal proceedings, with due notice to the owner; but so far as it is dangerous to the safety or health of the community, due process of law may authorize its summary destruction.” Samuels v. McCurdy, 267 U. S., 188, 69 L. Ed., 568; Crane v. Campbell, 245 U. S., 304, 62 L. Ed., 304.
• In Samuels v. McCurdy, supra, it is pointed out that the proper remedy for -one who claims the ownership of liquor and denies the right of the state to confiscate it is by injunction.
“Finally it is said that the petitioner here has no day in court provided by the law, and therefore that, in this respect, the liquors have been taken from him without due process. The supreme court of Georgia has held in DeLaney v. Plunkett, 146 Ga., 547, 565 . . . that, *256under the 20th section of the. Act of November 17, 1915 (Georgia Laws Extr. Sess. 1915, p. 77), quoted above, which declares that no property rights of any kind shall exist in prohibited liquors and beverages, no hearing need be given the possessor of unlawfully held liquors, but that they may be destroyed by order of the court. . . . The law provides for an order of destruction by a court, but it does not provide for notice to the previous possessor of the liquor, and a hearing before the order is made. Under the circumstances, prima facie the liquor existed contrary to law, and it was for the possessor to prove the very narrow exceptions under which he could retain it as lawful. If he desired to try the validity of the seizure, or the existence of the exception by which his possession could be made to appear legal, he could resort to suit to obtain possession and to enjoin the destruction under the Georgia law, as he has done in this case. This, under the circumstances, it seems to us, constitutes sufficient process of law under the- Federal Constitution, as respects one in his situation. Lawton v. Steele, 152 U. S., 133, 142, 38 L. Ed., 385.”
There is no question that intoxicating liquors, under proper conditions, may be transported through the state into another state as an interstate shipment under the protection- of the Commerce Clause, while that is being done without violation of valid police powers of the state; but in the repeal of the 18th Amendment, neither the U. S. Constitution nor the Congress left prohibition territory helpless to prevent importation of liquor in the prohibition territory in violation of valid state law.
In Carter v. Commonwealth of Va., 321 U. S., 131, 88 L. Ed., 605, this principle is expressed: “In a word, having the power to prohibit liquor from coming into a State, a State may take measures against frustration of that power by resort to the claim that liquor passing through a State enjoys the protection of the Commerce Clause.”
If the liquor concerned in this controversy ever entered the State under the protection of the Commerce Clause — -as to which there may be doubt — it lost that protection when found being possessed and transported contrary to law. Upon conviction of the offender, confiscation of the liquor seized and concerned in the illegal act depends upon the facts developed upon the trial for the criminal offense, and is made the subject of a judicial order upon such conviction. The liquor itself under such circumstances is regarded as the thing offending, and the confiscation is summary. Goldsmith, Jr.—Grant Co. v. U. S., 254 U. S., 505, 65 L. Ed., 376, 379.
I do not mean to say that the action of the court in confiscating the liquor is beyond review. Certainly, by injunction, an interested person may be heard to dispute the arbitrary and capricious exercise of this power or its exercise beyond the authority of the statute. Samuels v. McCurdy, supra. What might be the scope of such a hearing, it is not *257necessary now to inquire. I am sure, however, that it is not such a hearing as is contemplated in this remand. As far as the present proceeding is concerned, it is not, in my opinion, contemplated or authorized by the statute; although, indeed, a full hearing, restricted only by the unembarrassed judgment of counsel for the intervener, has been accorded it.
II. If the so-called intervener had a right to a hearing under G. S., 18-6, or any other State law, it has had a full opportunity to be heard upon its present petition purportedly filed under the original order of Judge Burgwyn — the court sitting at a later date for that purpose. The only thing absent at that hearing was evidence, or any offer of evidence, on the part of the intervener in support of its petition. The case comes here without any suggestion in the record that the intervener was denied an opportunity to present its case without let or hindrance in such manner as it saw fit.
This is what actually took place at the hearing:
The defendant moved for judgment by default on its petition for want of an answer — apparently on the theory that the proceeding was governed by the rules of civil procedure relating to adversary actions. The court declined to sign the judgment tendered, and the intervener excepted. It offered no evidence. The judge finding the facts upon which the confiscation was based signed judgment affirming and re-promulgating the former order of confiscation, and the intervener excepted. What is now before this Court? And, what is of equal importance, how is the main opinion (which, without intending to give offense, I find wholly cryptic) to be interpreted ?
In its brief the intervener still insists it is entitled to a judgment by default; this is its main contention. In a similar light appellant makes the unique argument that Judge Burgwyn had no power to find any facts except those contained in the allegations of the petition. The gist of these allegations is contained in paragraph 14 of that document:
. . that John Gordon was not guilty of the crimes with which he was charged, or any of them; that there was no illegal transportation or possession or possession for purpose of sale of the 579 cases of whislcey or any part of it; that the possession of your petitioner was never changed or broken; that the interstate journey of the 579 cases of whiskey was never changed or broken; that the interstate commerce status of said whiskey was never changed or broken; and, further, in the alternative, that if John Gordon ever committed any illegal act or had any illegal intent with respect to any part of such whiskey said act and said intent was confined in its scope to not more than 7 cases of whiskey.”
Since the demands of the intervener are of that character and no discrimination seems to be made in the main opinion as to what posi*258tions of the appellant are approved and what rejected, is the hearing arvarded the intervener a trial de novo before a jury, upon which all the facts, even the guilt or innocence of Gordon, are again to be put in evidence? That possibility seems too radical for discussion. Mugler v. Kansas, 123 U. S., 623, 31 L. Ed., 205; Southerman v. State, 66 Neb., 302, 92 N. W., 303. Appellant, under an apparent misconception of what is held in S. v. Davis, supra, insists that it is now entitled to be heard before “a fact finding body,” although it neither expected nor demanded a trial by jury at the hearing below.
III. The petitioner bases his right to be further heard in this matter upon an untenable distinction, and his petition is not meritorious. Coming now to the feature most stressed in the main opinion and assuming, without further clarification, that the remand is mainly grounded on that narrow point, I turn to the proposition that Gordon was convicted of having in his possession an amount of liquor — undesignated in the warrant — for the purpose of sale, and that this is not sufficient to warrant forfeiture of the whole cargo of 579 cases constituting the truck load. The contention is that Gordon’s purpose, as well as possession, was confined to the three to seven cases of liquor he had pulled out of the stacks and lined up 'for immediate delivery. As to his possession, we find it variously stated that he had “filched,” “pilfered,” “purloined” these cases of liquor from the intervener “in breach of faith” with his employer and, therefore, the owner should not be penalized by forfeiture of the remaining liquor as to which his intentions were doubtless honorable. All these euphonies add up to “stealing,” and that is the climaxing term finally applied.
The contention is in conflict with substantial evidence upon the trial of Gordon and contrary to reasonable inferences therefrom which must be conclusively held to have been within the contemplation of the jury in its verdict of guilty and of the court in judicially ordering the confiscation upon conviction.
First, Gordon was no “hi-jacker.” He stole nothing. He was put in actual possession of the truck load of liquor in what intervener’s petition admits was the regular custom of the business. His actual possession and custody extended to every part of the load. The car was not sealed. At Baltimore the seal was hung to a link of the chain at the tailgate, offering no obstruction to opening the doors. Employees of the inter-vener testified on the trial that if applied properly, the doors could not have been opened without breaking the seal. .Gordon had physical, actual, manual possession and control of every case of liquor in the load; and the statute affords no room for a distinction between the actual possession of Gordon and the supposed constructive possession of the intervener.
*259Under these circumstances Gordon was found with the rear doors of the truck open, a pick-up truck backed up to it by a man with a thousand dollars in his pocket, ready to receive such part of the truck load as Gordon saw fit to deliver. All this was by previous arrangement. And the case is to be sent baek so that the intervener may re-explore the mind of Gordon and show that he was virtuous with respect to the bulk of the load which he was transporting with no regard whatever for the State law. The intervener is to take up the fight just where it seems to have thrown in the towel at its last appearance before Judge Burgwyn.
The fallacy of the decision lies in its assumption that the court is without power to make an order confiscating contraband whiskey unless the warrant under which the defendant is tried specifies the amount and description, such as would be necessary in a civil action to try the title. The authority for the order of confiscation, however, is seated upon the evidence0 adduced in the trial, and for the purpose of the order this is addressed to the court. Hence, if there are inferences in that evidence upon which the order can be justified, the confiscation should be upheld. That there are such inferences in the present case has, as far as I am able to discover, not been denied.
The law, as I have said, contemplates that confiscation should rest upon the facts of the case as developed on the criminal action. To allow these to be refuted in a subsequent hearing by evidence de novo destroys the effectiveness of a well considered law and lets in all the evils which it was destined to prevent.
But suppose the intervener could make good on this point at a rehearing, what then? No reference is made in the main opinion to the effect of the conviction of Gordon on the two other counts in the warrant which do not have to do with sale, or the purpose to sell. These offenses, too, are stated in the warrant in general terms; but conviction under similar indictments has been upheld, even when a verdict of not guilty has been rendered on the count charging possession for purpose of sale. S. v. Davis, supra. Why should this ease be sent back upon such tenuous ground, relating solely to one count in a warrant, when Gordon was convicted of transporting a whole cargo contrary to law, and conviction for this offense, also, carries with it confiscation of the liquor? The effect is to annul the order of confiscation on an inconclusive finding, if the issue as defined in the main opinion is favorable to the intervener. The result is achieved by the simple process of ignoring the basis of the conviction.
Writing in my present capacity, I am not interested in promoting the ideologies of any political or social group. That I might do as a private citizen if I so desired. But looking at the law as coldly and objectively as I know how, I am not willing to admit that contraband liquor has, *260under that law, an indestructible quality as property of wbicb the State cannot deprive it by summary action when found to be contraband. If so, the remedy is to declare the confiscatory provisions of the present law unconstitutional and be done with it. If not, they deserve to be enforced according to their tenor. Perhaps in some portions of the State the popular opinion as to property in whiskey has undergone a change, but that feeling has not crystallized into law or repeal of law. The statute under which we are working was molded under a different conception of the inherent evils of intoxicating liquor, especially when allowed to flow in illegitimate channels, and should be construed in that light.
It does us no good to be mindful of the spigot and take no care for the bung. The wholesale distribution of contraband liquor in North Carolina under the guise of transportation through the State under the protection of Interstate Commerce has fallen into a pattern, which the present case closely follows. Not doubting in the least that* my colleagues of a different opinion have as much conscience and zeal as I, and perhaps greater wisdom, in the enforcement of the law, I feel that we are in danger of striking down the most effective provision of the statute by which wholesale violations of the law may be prevented.
I vote to dismiss the petition, or failing that, to affirm the order of the court below.