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.'

1723

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

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 on 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-pay. ment, 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 defaulted. 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 defend. ant 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 corpora tion, 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 Company, which was primarily liable thereupon for payment of the said note, and to apply so much of said deposit as was necessary to the pay ment 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 surplusage 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.

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

fore be a violation of the parol evidence rule as we have heretofore announced it.

The judgment is affirmed.

HOLCOMB, C. J., and MOUNT, MACKINTOSH and BRIDGES, JJ., concur.

NOTE-Signature on Unusual Place on Face of Note.-The Negotiable Instrument Law provides that "where a signature is so placed on 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 Germania Nat. Bank v. Marriner, 129 Wis. 544, 109 N. W. 574, cited by the instant case, says: "This provision by its very terms, applies only to a case of doubt arising out of location of the signature upon the instrument. Names are sometimes placed at the side, on the end or across the face of the instrument, and thus a doubt arises as to whether the signer intended to be bound as a maker, or an indorser, or perhaps as a guarantor, and to solve these doubts the section in question was evidently framed." Then the Court goes on to argue that in the case before it the signature was at the place where a maker's signature should be and the section does not apply.

But in Moore v. Cary, 138 Tenn. 332, 197 S. W. 1093, L. R. A. 1918D, 963, the face of the note showed a note payable to the order of Moore and signed at the foot by Moore and Cary. The Court held that Moore was to be deemed an indorser, because that was the only way he could be bound, and when the bank accepted the paper it took as an obligation by Carry as maker and Moore as indorser.

In Ex parte Yates (1857), 7 De G. & J. 191. Bruce, L. J., after saying that a party signed as indorser, continued: "In reply to this it had been urged that the signature was upon the face of the note and not upon the back of it. * * * The signature, although it was written upon the face of the note, was intended to have the force and effect of an indorsement, and it was as effectual as an indorsement as if it had been written upon the back."

In Cason v. Wallace (1868), 4 Bush (Ky.) 388, the Court spoke of an "inadvertent mislocation" of a name, rendering the signer an indorser.

In Gibson v. Powell (1841), 6 Hon. (Miss.) 60, payee's name was written under maker's signature, a patently unusual place. Payee was held as an indorser.

Franklin v. Twogood (1865), 18 Iowa 515, speaks of two paragraphs on Notes and Bills, p. 17, which say: "An indorsement is usually, as the word implies, written on the back of the instrument. It always should be written there, and although there is authority for saying that it may be written on the face, we are quite sure that a circumstance so unusual would be regarded with suspicion, and would require explanation."

But in Com. v. Butterick (1868), 100 Mass. 12, 97 Am. Dec. 65, the Court said "indorsed" means merely "written upon."

In Ryan v. First Nat. Bank (1894). 148 Ill. 349, 34 N. E. 1120, it was said it may "always be shown that a signature on the face of an instrument was placed there not as (of) a maker, but for the purpose of binding the party as indorser only."

And our view of the Negotiable Instruments Act in the section quoted from supra is to show that, if according to the tenor of the instrument any ambiguity arises, it may be explained and it has said, in effect, that such may arise from an apparent mislocation of a signature. If such may be explained so far as a bona fide holder for value is concerned, how much more is this true, when it becomes important between original parties, so far as the parol evidence is involved. C.

ITEMS OF PROFESSIONAL

INTEREST.

PROGRAM OF THE MEETING OF THE BAR ASSOCIATION OF ARKANSAS.

Editor, Central Law Journal:

We are now in a position to announce the program for the Annual Meeting of the Arkansas Bar Association at Hot Springs, June 2-3, 1920. Hon. A. Mitchell Palmer, AttorneyGeneral, expects to be present and has tentatively accepted our invitation to deliver an address. Hon. Roscoe Pound, Dean of Harvard Law School, will deliver an address on "A Ministry of Justice." We will have a timely discussion on "Road Improvement in Arkansas." George Vaughan, Little Rock, will read a paper upon this subject, under the sub-title, "Practical Workings," and W. B. Smith, Little Rock, on "Suggestions." This whole subject will be open to general discussion.

The following will read papers: W. F. Coleman, of Pine Bluff, "Local Assessments and Personal Property;" J. H. Crawford, of Arkadelphia, "Special Legislation in Arkansas," and Judge Scott Wood, of Hot Springs, subject not announced.

We will have a banquet or dinner on the first evening with a few short talks, followed by a reception and dance. This will enable members to leave on the 5:30 train on the afternoon of the second day of the meeting. ROSCOE R. LYNN, Secretary.

Little Rock, Ark.

PROGRAM OF THE MEETING OF THE GEORGIA BAR ASSOCIATION.

The thirty-seventh annual meeting of the Georgia Bar Association will be held at Hotel Tybee, Tybee Island, Ga., May 27, 28 and 29, 1920.

The President's address will be delivered by Mr. Luther Z. Rosser, of Atlanta. Prof. Roscoe Pound, Dean of the Harvard Law School, will deliver the annual address.

Other addresses will be delivered by Mr. Roland Ellis, of Macon; Mr. Eugene Black, of Atlanta, and Mr. John R. L. Smith, of Macon. Judge Arthur G. Powell, of Atlanta, will read a paper entitled, "Practice in Appellate Courts."

In addition to the reports from the usual committees, there will be a special report of the Permanent Commission on the Revision of the Judicial System and Procedure, by Judge Andrew Cobb, of Athens, Chairman. We have a copy of this report before us and find in it some very interesting suggestions. In addition to a discussion of this report there will be a discussion of the following subjects: "Selection of Judges and Terms of Office;" "Should the City Courts be Abolished? If So, What Should be Substituted?"; "Should the Supreme Court and the Court of Appeals be Consolidated?"

CORRESPONDENCE.

MEANING OF WORD "CONCURRENT" IN THE EIGHTEENTH AMENDMENT.

Editor Central Law Journal:

The reprint of Judge Rellstab's opinion in the case of Feigenspan v. Bodine, in your issue of April 9, suggests, by its length of argument in the effort to evolve a sensible legal construction out of the Eighteenth Amendment, that the Amendment is hopelessly obscure, if the plain meaning of the words used in it is to be departed from.

The word "concurrent" has no novelty in it. It is one of the oldest words in use in American jurisprudence as the result of the fact that, for the first time in the experience of any country, there has been such a thing as two distinct jurisdictions concurrent within the same territory. I refer to the separate jurisdiction of the Federal Courts and the State Courts within the limits of the respective States, in applying in both of them the Common Law and Commercial Law, and in the Federal Courts, the State Laws.

It was not necessary for the court to resort to a dictionary for the solution of the meaning of the word "concurrent" when all of our

law dictionaries define that word, supported by citations from authorities going back to the earliest days of the Union.

It is common knowledge that the committees who framed the Eighteenth Amendment, as well as the Congress itself, are composed largely of lawyers, many of them of very great experience, and of national reputation as such. It is to be presumed, therefore, that Congress used the word "concurrent" in its ordinary legal sense, as defined by the courts ever since the Union existed. As far back as 1831, the time of 2 Stew, and Port., Alabama Supreme Court Reports, Chief Justice Lipscomb defined the meaning of the word "concurrent."

He said in that case on page 15 as follows: "It is an admitted principle, that where two courts have an equal and concurrent jurisdiction, that the one that commences the exercise of its jurisdiction first, has the preference, and is not to be obstructed in the legitimate exercise of its powers by the court that, on the subject matter, would be only co-ordinate."

In other words, under the Eighteenth Amendment, whether the laws of the United States or those of a State shall have the preference in the matter of the enforcement of the article, is purely a question of time, and within the limits of the State, the State Legislature is superior to the Congress of the United States.

Judge Rellstab says (referring to Article VI of the Constitution):

"By reason of this provision such a thing as a legal conflict between the laws of Congress, enacted pursuant to the powers granted or delegated to it, and the legislation of any of the States, is constitutionally impossible."

By that assertion he aims to nullify the second section of the Eighteenth Amendment. He appears to have forgotten that it is an old maxim of construction of statutes and instruments of writing that the later clause of a writing prevails over an earlier clause whenever there is any want of harmony between the two.

Applying that maxim to the Eighteenth Amendment, it is clear that, instead of Article VI of the Constitution controlling the Eighteenth Amendment, the rule is directly opposite.

The Eighteenth Amendment controls Article VI.

Article VI must be so construed as to har monize with the Eighteenth Amendment, and not the Eighteenth Amendment be construed so as to harmonize with the Article VI.