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A constitutional provision providing that benevolent associations shall be exempt from the payment of an incorporation fee cannot be extended by the legislature so as to exempt a building association organized "whereby the shareholders, out of their savings, may be enabled to secure homes, or loan their savings to others at higher rates. of interest, to be fixed by the directors."s

In Texas an act was adopted by the legislature providing that in case of a sale and shipment of intoxicating liquor the place of sale should be deemed to be the place of receipt and not at the place of delivery to the shipper. The constitution. prohibited the sale of liquors within a geographical division of the state where local option had been adopted. Thus the statute sought to make a sale invalid by changing the well-known rule of law that a sale is completed at the point of shipment, and not at the point of destination. The Supreme Court of Criminal Appeals held the

statute

stood meaning as therein employed, or add
'liquors' thereto which are not intoxicating.
Where words, terms or language are plain
and definite, there is no room for construc-
tion, for such language is self-construing,
and to be taken in its ordinary meaning and
acceptance at the time of the adoption of
the constitution. If this were not true,
the legislature could carve or legislate away
the plainest provisions of that instrument,
or these provisions could be construed to
mean anything to suit the passing fancy of
the hour, or as clamor might demand."

"19

A statute of Nevada created and authorized the Nevada Benevolent Association to give not exceeding three entertainments or gift concerts, and to sell tickets of admission to it entitling the holder to participate in a distribution of awards "by raffle or other schemes of like character," and then declared that "nothing in this act contained shall be construed as authorizing a lottery. in this state, or as allowing the sale of lottery tickets contrary to the provisions of the constitution." The Supreme Court held that the statute in fact provided for a lottery in direct violation of a provision in the state constitution, that it was void; and that the provision of the statute just quoted could not save it from the charge of unconstitutionality, saying:

unconstitutional, saying: "Sale, used in article 16, Section 20, had as thoroughly known and definite meaning as did the expression 'intoxicating liquors,' used in the same action. The legislature could with as much propriety pass an act defining 'intoxicating liquors' entirely destructive of its meaning as used in the constitution, as it could the definition and meaning of the "The state government is divided by the organic law into executive, legislative and term 'sale' as therein used. The same reasjudicial departments, and no person charged oning which justified one would authorize with the exercise of powers properly bethe other, and one proposition is as subver- longing to one of these departments shall sive of the constitution as would be the exercise any functions appertaining to either of the others except in cases expressother. Those who would sustain the act of ly directed or permitted. The construction the legislature defining C. O. D. sales as to be placed upon this act must be deteroccurring at the point of consignment de-mined by the Court alone. The attempted spite the real contract, would scarcely agree that that body could eliminate 'intoxicating liquors' by giving that term a definition out of accord with its ordinary and well-under

family" after the Supreme Court had interpreted that term, which all the courts declare cannot be done; but the language quoted is amply broad enough to cover an instance where no interpretation of even a statute had previous to its enactment been made.

(18) State v. McGrath, 95 Mo. 193; 8 S. W. 425.

exercise of this power by the legislature was an assumption of the functions of the judiciary, and must be disregarded."20

The constitution of Texas provided that "no person for the same offense shall be twice put in jeopardy of life or liberty"; and in 1856 the legislature provided that

(19) Keller v. State (Tex. Crim. Apps.); 87 S. W. 669; 1 L. R. A. (N. S.) 489. See the comments of Chief Justice Bronson on this subject in Oakley v. Askinwell, 3 N. Y. 547, 568. (20) Exparte Blanchard, 9 Nev. 101.

"no person for the same offense can be twice put in jeopardy of life or liberty"; and added, "This is intended to mean that no person can be subjected to a second prosecution for the same offense after having once been prosecuted in a Court of competent jurisdiction and duly convicted." This was followed by a clause explaining the words italicized: "The foregoing article will exempt no person from a second trial who has been convicted upon an illegal indictment or information and the judg ment thereon arrested, nor where a new trial has been granted to the defendant, nor where a jury has been discharged without rendering a verdict, nor for any cause other than that of a legal conviction." This statute was almost literally re-enacted in 1879.

The Court of Appeals of that state considered that part of the statute above italicized void, saying: "The construction of the term jeopardy in our constitution being the proper one, as settled by the decisions of the Courts before the constitution was adopted, it is to be presumed that the word was used in that sense when our constitution makers put it into the constitution. If this be so, then it must follow that the legislature had no authority to give it another and different meaning from that which it must have intended it should have. And it must further follow that the attempted act on the part of the legislature was without authority, and is not binding. upon the Courts.”21

(21) Powell v. State, 17 Tex. Cr. App. 345. "But the Legislature has no authority to interpret or declare a matter of constitutional construction of a constitutional provision which has become fixed and settled by judicial determination." Ibid.

"Evidently, to our minds, medicated bitters producing intoxication are intoxicating liquors. within the meaning of the constitution. If we held otherwise, these local option districts would be flooded with intoxicating liquors containing some stuff called 'medicines.'" James v. State, 21 Tex. App. 353; 17 S. W. 422.

"Intoxicating liquors" has been defined in the following cases: People v. Hawley, 3 Mich. 330; People v. Sweetser, 1 Dak. 308; 46 N. W. 452; State v. Oliver, 26 W. Va. 422; 53 Am. Rep. 79; Sebastian v. State, 44 Tex. Cr. Rep. 508; 72

The recent amendment to our federal constitution provides that

"After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and

S. W. 849; Pike v. State, 40 Tex. Cr. Rep. 613; 31 S. W. 395; Commonwealth v. Timothy, 8 Gray 480; State v. Coulter, 40 Kan. 87; 19 Pac. 368; James v. State, 49 Tex. Cr. Rep. 334; 91 S. W. 227; Mason v. State, 1 Ga. App. 534; 58 S. E. 139; Walker v. State (Tex.) 98 S. W. 265; State v. Burk, 234 Mo. 574; 137 S. W. 969; Heintz v. La Page, 100 Me. 542; 62 Atl. 605; Exparte Townsend (Tex.) 144 S. W. 628; State v. Burk, 151 Mo. App. 188; 131 S. W. 883; Sandolski v. State (Tex.) 143 S. W. 151; Murray v. State, 56 Tex. Cr. App. 438; 120 S. W. 437; State v. Piche, 98 Me. 348; 56 Atl. 1052; Murray v. State, 46 Tex. Cr. Rep. 128; 79 S. W. 568; Mason v. State, 56 Tex. Cr. Rep. 261; 119 S. W. 852; Arburthnot v. State, 56 Tex. Cr. Rep. 517; 120 S. W. 478.

"The language of said [constitutional] prohibition ordinance, reasonably construed, means liquors which will intoxicate, and which are commonly used as beverages for such purpose, and also any mixture thereof, compounds, or substitutes for such liquors that possess intoxicating qualities. The use of intoxicating liquors as a beverage was the evil to be prevented, and by the adoption of prohibition as a part of the organic law it was intended to put a stop to such use." Markinson v. State, 2 Okl. 323; 101 Pac. 353.

State v. Witt, 39 Ark. 216; Snyder v. State, 81 Ga. 753; 7 S. E. 631; 17 Am. St. 350; Decker v. State, 39 Tex. Cr. Rep. 20; 44 S. W. 845; Taylor v. State (Tex.), 49 S. W. 589; Malone v. State (Tex.), 51 S. W. 381; Pike v. State, 40 Tex. Cr. Rep. 613; 51 S. W. 395; City of Topeka v. Zufall, 40 Kan. 47; 19 Pac. 361; 47 L. R. A. 387; Commonwealth v. Morgan, 149 Mass. 314; 21 N. E. 369; State v. May, 52 Kan. 53; 34 Pac. 407; State v. Intoxicating Liquors, 76 Iowa 243; 41 N. W. 6; 2 L. R. A. 408; State v. Barron, 37 Vt. 57; Johnson v. State, 23 Ohio St. 556; State v. Biddle, 54 N. H. 379 (question for jury); In Re Intoxicating Liquor Cases, 25 Kan. 751; 37 Am. Rep. 284; Mullen v. State, 96 Ind. 304; State v. Lewis, 86 Minn. 174; 90 N. W. 318; Holland v. Commonwealth, 7 Ky. Law Rep. 223 (brandy peaches); Ryall v. State, 78 Ala. 410 (brandy peaches); Rabe v. State, 39 Ark. 204 (brandy peaches); Commonwealth v. Chappel, 116 Mass. 7; Hewitt v. People, 186 Ill. 336; 57 N. E. 1057; Johnson v. State, 23 Ohio St. 556; State v. Page, 66 Me. 418 (question for jury); Anderson v. Commonwealth, 9 Bush. 569; State v. Muncey, 28 W. Va. 494; Holcomb v. People, 49 Ill. App. 73; Peopl v. Schew, 29 Hun. 122; People v. Zeiger (N. Y.), 6 Parker Cr. Rep. 359; Bertrand v. State, 73 Miss. 51; 18 So. 545; U. S. V. Stubblefield, 40 Fed. 459; Wadsworth v. Dunnam, 98 Ala. 610; 13 So. 597; State v. Lillard, 78 Mo. 136: Russell V. Sloan, 33 Vt. 656; Common

all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.''22

Having this amendment in view Congress enacted and passed over the President's veto a long and drastic statute on the subject of "intoxicating liquors" wherein it undertook to define that phrase, as follows:

"The word 'liquors' or the phrase 'intoxicating liquors' shall be construed to include alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated, proprietary, patented, or not, and by whatever name called, containing one-half of one per cent. or more of alcohol by volume which are fit for use for beverage purposes."23

In both the House of Representatives, where this statute had its origin, and in the Senate, are many very excellent lawyers and not a few well versed in constitutional law; and yet, in view of the almost universal construction of our constitution by the Courts, as reflected in the cases above cited, the conclusion is almost forced upon the writer that they overlooked or did not fully appreciate what they were doing when they adopted that part of the statute defining "Intoxicating Liquors."

The definition of that term is certainly one for the Courts. If the Congress may say that liquors containing one-half of one per cent of alcohol shall be considered an "intoxicating liquor," then at some session of that body in the future when the then members of that body entertain extreme ideas on prohibition it may enact a statute declaring that one-tenth (or even less) of one per cent of alcohol in liquor shall be deemed an "intoxicating liquor." On the other hand, if a majority of Congress entertained "liberal" ideas on the subject of

wealth v. Ramsdell, 130 Mass. 68; Howell v. State, 71 Ga. 224; 51 Am. Rep. 259; King v. State, 58 Miss. 737; 38 Am. Rep. 344; Carl v. State, 87 Ala. 17; 6 So. 118; 4 L. R. A, 380; State v. Parker, 80 N. C. 439.

(22) U. S. Comp. Stat., 1919 Supp., p. 2678. (23) U. S. Stat. 1919, p. 307, Sec. 1. Passed Oct. 28, 1919.

intoxicating liquors it might enact a statute that no liquor should be deemed "intoxicating" which did not contain over four, or six, or ten, or even more (where is the limit?) per cent of alcohol..

If it could thus raise the per cent of alcohol, then in the estimation of the prohibition element, at least, of our people the United States would no longer be "dry" but "wet"; and such would be the opinion of ninety-nine hundredths of its people.

Thus the amendment would be practically nullified. Such an interpretation of the power of Congress leaves open the door to a practical return to the sale of liquor, in fact intoxicating.

There is no doubt about the desirability of a fixed and inelastic determination of what is an "intoxicating liquor"; but that determination should have been made by the constitutional amendment itself. There will be, as there now is, different opinions concerning what is and what is not an "intoxicating liquor." A man with high prohibition ideas or sentiments will consider a liquor with an extremely small percentage of alcohol in it to be an "intoxicating liquor"; while a man with "liberal" ideas or notions will just as honestly consider a liquor with a very much higher percentage not intoxicating. In the trial of cases witnesses will honestly clash over the question whether a particular liquor is or is not intoxicating. The Courts cannot set up for themselves a standard of percentages. In the last analysis an alcoholic liquor that has any effect whatever, though unknown to him, upon an individual is in-. toxicating; but was it the intention in the adoption of the constitutional amendment to cover or prohibit the sale of such a liquor? Coffee and tea are stimulants. Yet is an alcoholic liquor that is no more a stimulant than these two liquors to be held to be an "intoxicating liquor?"

If the question is to be left to a jury, then a jury in one state, owing to the prohibition sentiment, will hold a particular

liquor to be an "intoxicating liquor"; while in another state where prohibition sentiment does not exist, or runs low, another jury may find or hold that the same liquor is not intoxicating.

Probably no greater difficulty will be experienced determining what is an intoxicating liquor under this constitutional amendment than has been experienced in many states where that term has been used in their statutes or the constitutions; but it is quite clear, if defined at all, that the Courts must define it, and also that Congress cannot set up a standard by which to determine what is an "intoxicating liquor." W. W. THORNTON.

Indianapolis, Ind.

BILLS AND NOTES-INDORSEMENT.

BANK OF CALIFORNIA v. STARRETT.

Supreme Court of Washington, March 17, 1920..

188 Pac. 410.

Despite Negotiable Instruments Act (Rem. Code 1915, § 3408), providing that, where signature is so placed on the instrument that it is not clear in what capacity the person intended to sign, he is deemed an indorser, signature by defendant of a company's note on the usual blank form by writing his name on the left side of the bottom of the body of the note, instead of cn the right, gave rise to no presumption defendant was indorser, instead of maker.

FULLERTON, J. This is an action upon a promissory note, of which the following is a

copy:

"$4,000. Seattle, Washington, Mar. 15, 1917.

"On demand, after date, we jointly and severally as principals promise to pay to the order of the Bank of California, National Association, four thousand dollars, for value received, with interest from date at the rate of 6 per cent per annum payable monthly until paid. Principal and interest payable in U. S. gold coin, at the Bank of California, National Association, in this city.

"In case default is made in the payment of this note, and the same is placed in the hands of an attorney for collection, we jointly and severally agree to pay five per cent of the amount then due as attorney's fees. if paid without suit; but if suit be commenced to col

lect the note, or any part thereof, we jointly and severally agree to pay ten per cent upon the amount due at the time suit is brought, and in case such suit is prosecuted to judgment, said attorney's fees equal to ten per cent of the amount then due, shall be included in said judgment, and such judgment shall bear interest at the rate of ten per cent per annum.

"All parties to this note, including guarantors, sureties and indorsers, hereby severally waive presentment, protest, notice of non-payment, and any release or discharge arising from any extension of time of payment or other cause.

"[Seal] Teller Packing Company, By Henry Teller, Pres. W. T. Hall."

"Henry Teller. "H. W. Starrett.

Of the parties to the note, Hall and Starrett alone were served with process. Hall de faulted. Starrett answered, putting in issue by denials the traversable allegations of the complaint, and pleading affirmatively the fol lowing:

"Further answering said complaint, and as a first affirmative defense thereto, this defendant alleges:

"That at the time of the execution of the said note, described in paragraph 3 of said complaint, this defendant signed the same as an indorser, without consideration, upon the understanding that the plaintiff would collect the amount thereof, with interest, from the defendant Teller Packing Company, a corporation, as and when said corporation, which was then engaged in the salmon packing business, should receive money from the sale of its pack.

"VI. That the said note is a demand note, and at diverse and different times since the making thereof, the said Teller Packing Company has had on general deposit in an open account with the said plaintiff, from the sale of its pack, large sums in excess of the amount then or at any time due upon the said note, and that this defendant on several occasions notified the plaintiff that the said deposit was on hand, and requested it to make demand upon the said Teller Packing Com pany, which was primarily liable thereupon for payment of the said note, and to apply so much of said deposit as was necessary to the payment thereof.

"VII. That this defendant further informed the said plaintiff that said Teller Packing Com pany was in a precarious financial condition, and that defendant might be injured, but that notwithstanding the defendant's request, the said plaintiff refused and neglected to make application of said deposit towards the pay ment of said note or any part thereof, or to do anything proper to protect this defendant in the premises.

"IX. That since the said request was made by this defendant, the said Teller Packing Company has been adjudged bankrupt."

The first question presented by the record is: In what capacity did the appellant sign

the instrument; that is to say, is he a maker or an indorser? It is the appellant's contention that he signed as an indorser. This is founded upon section 17, subd. 6, of the Negotiable Instruments Act (Rem. Code, § 3408), which provides that, where a signature is so placed upon an instrument that it is not clear in what capacity the person making the same intended to sign, he is to be deemed an indorser. The only thing unusual in the placing of the signature upon this instrument is that it was placed on the left side of the bottom of the body of the instrument, instead of upon the right, the more usual place for the signatures of makers. But there can be no hard and fast rules in such cases. The exigency of modern business conditions requires that houses using commercial paper keep on hand blank forms of such paper as they most commonly use. These forms must be more or less general, if they are to serve their purposes, and the result of this practice is that such paper is often found containing matter which is sur plusage when applied to the particular transaction. Such forms must also be limited as to size, and only a limited number of spaces can be provided for signatures. When the instrument is a note, and there are more makers than there are spaces for signatures, it is not an uncommon practice for some of them to sign in the blank space to the left of the place prepared for signatures. The original note which is in evidence bears evidence that such was the case here. The names of the corporation maker, together with the name and title of the authenticating officer, with that of another maker, took up all of the available space provided for the signatures, and the appellant, with the other person charged as maker, if they signed upon the note at all, had to sign elsewhere than in the more usual place.

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The appellant argues that the place upon which he placed his name on the note is the place usually reserved for witnesses to the signatures of the persons bound by the instrument, and that for this reason it is not clear as to the capacity in which he signed. In a case where the law required the instrument to be authenticated by witnesses, undoubtedly this argument would have force whether the capacity in which they actually signed was indicated or not; but we think it has little weight where the instrument is a promissory note. The law of this state has never required the signatures of a promissory note to be authenticated by witnesses, and we are not aware that such was ever the rule of the law

merchant. There can therefore be no presumption that persons so placing their names signed as witnesses, and hence nothing upon which the rule of the statute can seize to charge them as indorsers.

We have been cited to no case, and our own researches have discovered none, where the precise question has been presented. In the case of Germania Bank v. Mariner, 129 Wis. 544, 109 N. W. 574, it was discussed somewhat; but the real question there presented and determined was whether the defendant was bound upon the note at all, not whether he should be bound as a maker or as an indorser. Our own case of Handsaker v. Pedersen, 71 Wash. 218, 128 Pac. 230, also touches the question. In that case certain parties to the note claimed they were not makers, but only indorsers, and the fact that they signed the note in the lower left-hand corner was relied upon as a circumstance indicating their purpose. We there said that this circumstance, "if worthy of consideration at all," was overcome by certain parol evidence introduced at the trial. This case, it is true, is not conclusive of the question; but it is clear that insofar as it has bearing it sustains the conclusion we here reach, namely, that a person so placing his signature upon a note signs as maker rather than as an indorser.

Since the appellant signed the note as maker and not as an indorser, can he show in defense of an action against him upon the note the matter alleged in his affirmative answer? By the terms of the Negotiable Instruments Act an accommodation party to a note is primarily liable thereon. His engagement is to pay the note according to its tenor, and is so holden to the payee, even if, at the time of taking it, the payee knew he was but an accommodation party. Rem. Code, §§ 3420, 3551, 3582. While the rule is not uniform, even in those states which have adopted the Negotiable Instruments Act, it is generally held that a contemporaneous parol agreement limiting the liability of such a maker, or fixing a collateral source of payment, is not available as a defense. Such was our holding in Van Tassel v. McGrail, 93 Wash. 380, 160 Pac. 1053, where a number of our cases to the same effect will be found collected. See, also, Bradley Engineering Co. v. Heyburn, 56 Wash. 628, 106 Pac. 170, 134 Am. St. Rep. 1127. To permit the agreement pleaded to be shown would there

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