The judgment below, from which the State appealed, denied the power of the court to enforce the provisions of the statute with respect to a quantity of intoxicating liquor which had been seized by State officers while being unlawfully possessed and unlawfully transported in the State by the defendant Bert Hall. The ruling appealed from was based on the ground that the liquor was being transported in interstate commerce and was therefore protected from seizure for unauthorized acts of the persons in possession, however unlawful.
In the consideration of the question thus presented we note at the outset that the defendant Bert Hall, who was in the possession of the seized liquor at the time he was arrested for unlawful acts with respect thereto, pleaded guilty to charges of unlawful possession and unlawful transportation of this liquor. Thereupon personal judgment was rendered against him, and, in accord with the mandatory provisions of the statute, the judgment also ordered the confiscation and forfeiture of the liquor so unlawfully possessed and transported. G. S., 18-6. From this judgment Hall did not appeal.
From an examination of this and other related statutes it will be observed that ample provision is made for determining right of possession of innocent claimants in ease of seizure of vehicles used in the unlawful possession and transportation of intoxicating liquor, but the liquor itself is not included in this category. The absence of such provision in the matter of seized liquor, together with the requirement that it be destroyed, would seem to indicate the legislative intent that the *319liquor itself when tbe subject of unlawful traffic and as capable of barmful effects offends tbe law and should be regarded as a nuisance and contraband, to be summarily destroyed or otherwise disposed of. 30 Am. Jur., 541. Only in case of failure to establish a violation of law is tbe restoration of the liquor permitted. G. S., 18-13. However, in accord with approved practice tbe processes of tbe courts of North Carolina are available to anyone legally interested to present bis claim for tbe possession of seized liquor, and bis plea will be beard. S. v. Gordon, ante, 304.
In this ease petitioner, after filing bis interplea, waited more than a year before prosecuting bis claim, at which time tbe liquor bad been disposed of in accordance with tbe recorder’s judgment. However, tbe adjudication on appeal in tbe Superior Court in petitioner’s favor is challenged by tbe State on behalf of tbe public agencies directly involved. Thus tbe question of tbe propriety of tbe judgment declaring petitioner ■entitled to tbe immediate possession of tbe described liquor is now presented to this Court for determination.
Tbe North Carolina statutes have banned tbe transportation of intoxicating liquors within its borders except in restricted instances, and declared its possession in quantity unlawful except under special circumstances not here pertinent. G. S., 18-2. Both by tbe Constitution of tbe United States (Amendment XXI), and tbe State statutes liquor has been placed in a category in some respects different from that of other articles of commerce, and tbe State’s regulations aimed at tbe suppression of its prohibited transportation and unlawful possession should not be held obnoxious to tbe interstate commerce clause of tbe United States Constitution unless clearly in conflict with granted Federal powers and ■congressional action thereunder.
Tbe evidence beard below reveals as one of tbe significant circumstances attending this shipment that tbe truck leased by petitioner and in which tbe liquor was being transported bad no fastening, lock or seal on its doors, and that none of tbe packages of liquor were anywhere labeled to show tbe name of tbe consignee, in violation of tbe express provisions of tbe Federal statute. 18 U. S. 0. A. sec. 390. Thus a cargo of whiskey without legal safeguards, in small bottles, was being transported in an open truck within tbe State in violation of State laws, and bandied in such a manner as to facilitate tbe convenient disposal of tbe liquor. Clearly the shipment was being diverted from-permitted channels. As a result, after tbe truck bad remained in Fayetteville some three days seven cases of liquor bad been disposed of and those having custody for tbe carrier were actively engaged in selling it.
Under these circumstances, was tbe seizure of tbe liquor and tbe arrest of tbe person in charge an unlawful interference with interstate com*320merce, or did it deprive the petitioner of property without due process of law, or take its property for public use without just compensation?
The record in this case discloses that under the State law and in a court of competent jurisdiction, the person in the actual possession of a large quantity of intoxicating liquor has been adjudged guilty of unlawful possession and unlawful' transportation thereof within the State. This conviction entailed not only a personal penalty against the person, but brought the liquor itself, when thus being unlawfully possessed and transported, within the condemnation of the law, which requires its destruction or expropriation for the benefit of the public school fund.
Thus we are dealing with a case in which North Carolina is undertaking to enforce her own laws. Carter v. Virginia, 320 U. S., ..... (88 Law. Ed., 387). The State can lawfully impose restrictions upon the interstate transportation of liquor through its borders by requiring permits, .bonds or the designation of definite routes of travel. Carter v. Virginia, supra; Johnson v. Yellow Cab, 88 Law. Ed., 553; Duckworth v. Arkansas, 314 U. S., 390, 86 Law. Ed., 294. We see no reason to-deny the right of the State to enforce its laws with respect to this shipment of liquor, under the circumstances here presented, notwithstanding the liquor was ostensibly designated for a destination beyond the State. We think it was subject to immediate seizure. Ziffrin v. Reeves, 308 U. S., 132.
In the case last above cited, where it was sought in a U. S. District Court to restrain the enforcement of the contraband and penal provisions of a state statute of Kentucky regulating the transportation of intoxicating liquor, it was said by a unanimous Court, “Without doubt a state may absolutely prohibit the manufacture of intoxicants, their transportation, sale, or possession, irrespective of when or where produced or obtained, or the use to which they are to be put. Further, she may adopt measures reasonably appropriate to effectuate these inhibitions and exercise full police authority in respect of them. . . . The state may protect her people against evil incident to intoxicants, Mugler v. Kansas, 123 U. S., 623; Kidd v. Pearson, 128 U. S., 1, and may exercise large discretion as to means employed.”
The effort to exercise control in the public interest over the traffic in intoxicating liquor has been attended with difficulty, “due,” as said by Chief Justice Stone in Duckworth v. Arkansas, supra, “to its tendency to get out of legal bounds.” Here, the judgment of the recorder upon the evidence in this case in ordering the confiscation of the liquor was-in compliance with the mandatory provisions of the North Carolina statute and should have been upheld.
*321We think the controlling principle of law to be applied here is that when a cargo of intoxicating liquor, though started on its way as an interstate shipment, is diverted to unlawful purposes in violation of the law of the state in which it has qome to rest, the initial character of the shipment does not clothe those in possession with immunity from prescribed penalties or oust the jurisdiction of the state courts, either as to person or property. This was the rule laid down in the reeént case of S. v. Gordon, ante, 304.
We note further that the record does not disclose the real ownership of the whiskey seized. Neither the Frankfort Distilleries, Inc., by and to whom it was consigned, nor Yincent Chiceo to whom it was to be delivered for distribution, has interposed any claim for it. The only claim for its release is filed by Roadway Express as bailee. It is a familiar principle that a bailee may sue a third person for interference with the bailment. But in order to entitle him to do so he must have been in possession of the goods at the time of the trespass. 8 C. J. S., 317; R. R. v. Baird, 164 N. C., 253, 80 S. E., 406. “Possession and control are essential elements in the law of bailment,” said Justice Brown in Matthews v. R. R., 175 N. C., 35, 94 S. E., 714. Here the situation was somewhat complicated by the method employed, whether by accident or design, in handling the shipment. It appears that petitioner, a motor carrier which had handled many shipments of liquor for the Frankfort Co. to South Carolina and Georgia, accepted this shipment, but not having available equipment, leased or rented for the transportation of this whiskey to Charleston a truck belonging to McElveen Lines and operated by Bert Hall. In the petition it was alleged that Hall was an employee of McElveen Lines. The written lease signed by Bert Hall stated that possession and control of the truck was leased to Roadway Express. It was stipulated that “while the equipment is under the direction and control of Roadway Express, Inc., it shall be operated by lessor (McElveen) or his representative while in the employ of Roadway Express, Inc.” Roadway Express agreed to pay compensation for rental and wages. If Bert Hall were an independent contractor in the operation of his truck, then petitioner could not be said to have been in actual possession of it at the time of the seizure. That is, if Roadway Express, though the shipment was offered to and accepted by it, merely turned it over to another for uncontrolled handling, it could not sustain its claim as bailee. On the other hand, if a simple agency resulted from the contract of lease, and Hall were merely the alter ego of the Roadway Express, it as principal can occupy no superior position with respect to third parties and must suffer for the fault of the agency which it has created. Neither Bert Hall nor his employer or lessee can claim immunity from the penalty invoked by his unlawful conduct.
*322Tbe Twenty-first Amendment to the Constitution of the United States removes the protection afforded interstate commerce only from shipments into a dry state, but does not affect shipments through such state. U. S. v. Gudger, 249 U. S., 373. However, congressional action under the Interstate Commerce Clause of the Constitution does render the things done and omitted by the petitioner itself as well as by its agent, Bert Hall, in this case, criminal offenses under Federal law (18 U. S. C. A. 390, amended 25 June, 1936). When these violations of Federal statutes also give rise to and result in violations of state laws, the offender may not be heard to complain of the unfavorable result.
The order of the court below, entered more than a year after the seizure, declared Roadway Express, Inc., as bailee, entitled to the immediate possession of the 323 cases of whiskey. However, the record discloses that this whiskey had long before been ordered confiscated and sold. It is 'admitted this has been done. Presumably the proceeds have been covered into the public school fund. It appears, therefore, that the subject matter of the order is no longer in existence, and the effect of the order could only be construed as affording ground for further action by the real party in interest with respect to the proceeds. In that event it is manifest that a claim against the state or its agency for reimbursement could not be prosecuted in this action by the petitioner.
This case differs in material respects from Johnson v. Yellow Cab Transit Co., 88 Law. Ed., 553. In that case liquor being transported through the State of Oklahoma en route to the U. S. Military reservation of Fort Sill was seized by state officers. No action, criminal or civil, was pending or commenced in state courts, and claimant brought suit in the U. S. District Court against the state officers for a mandatory injunction for return of the liquor. There was no evidence of violation of law by those from whom the liquor was seized while in the State of Oklahoma.
Exceptions were noted to the findings of the court below. In so far as these findings are not in accord with the record or supported by the evidence, the exceptions are sustained.
For the reasons herein stated, the judgment is
Reversed.