use of the trade-name and good will established after extensive advertising, to the extent that the public have associated with the article a standard of value, to fool the public into a belief that because a standard priced article can be sold at a cut price all other goods sold are similarly low priced; in other words, to defraud the public. It is no answer to say that full value is given by the retailer for each article sold. If such be the fact, a person is defrauded if he buys an article at full price for which he has no immediate need because he is induced to believe it a bargain and thereby deprive himself of the use of the purchase price for other purposes for which he might have used it if he did not think he was getting a bargain."

The Chancellor seeks to distinguish this case from the cases of Boston Store Co. v. American Graphapahone Co., supra, and Dr. Miles Medical Co. v. Park & Sons and others by showing that in these cases the Supreme Court upheld the right of a purchaser to resell the article bought but did not hold that he had a right to traffic in the manufacturer's trade-mark. The Court said:

"In the cases which have gone to the Supreme Court of the United States, there have been involved questions of patent or copyright law not here present. In those cases in which the right to fix a resale price has been under consideration, the prohibition against the resale has been against the resale of the article itself. The name or trade-mark or what not has been so much an integral part of the article as that a resale of the article without reference to the

trade-mark or trade-name would be practically impossible. In the case at bar the prohibition is not against the resale of the article, nor is it impracticable to resell the article without reference to the trade-name. Indeed, complainant offers to manufacture watches similar to those marked with its trade-name without the trade-name. Complainant does not seek to retain any right in the article itself; it merely seeks to restrain the use of its trade-name and good will, except under conditions fixed by it. It may permit the purchaser of the article to use its trade-name and good will under such conditions as it sees fit. It has an interest, in addition to that of mere protection to its trade. name and good will, for it guarantees the article sold, and scrupulously performs its guaranty, maintaining a large and expensive repair department for this purpose. It seems to me that there is a clear distinction between those cases in which the nature of the restraint is such as necessarily to affect the resale of the article itself and the case at bar where the nature of the restraint is not such."

WHICH DEFINITION OF "CONCURRENT POWER" WILL THE SUPREME COURT CHOOSE?

Four distinct constructions of "Concurrent Power" have been presented to the U. S. Supreme Court in the hearing on the seven liquor cases now pending relating to the 18th Amendment. The life of the 18th Amendment hangs upon a proper construction of these two records.

Messrs. Root and Guthrie in claiming that the Federal Prohibition Code cannot be enforced in New Jersey without concurrence by similar state legislation said in their brief:

"In other words, the State was not surrendering to the Federal Government any part of the exclusive control then exercised and exercisable by it over its own internal affairs, nor was the Federal Government surrendering any part of its exclusive control over interestate and foreign commerce, but each was retaining an effective voice within its own sphere of action, and this was accomplished by limiting the grant of authority of each, so far as it might affect the rights of the other, to concurrent power of enforcement."

Mr. Kelly representing the liquor interests of Massachusetts contended that the Federal Code could not go into operation until three-fourths of the states ratified it by enacting similar legislation. His brief says:

"The only method of legislation authorized by the Constitution of the United States by which the power of the several States over intoxicating liquor can be destroyed or surrendered is legislation enacted by the concurrent power of congress and the several States as authorized by Article 5 of the Constitution."

Mr. Jackman representing the brewing interests of Milwaukee, claims that the State has supreme power over the liquor traffic within its borders. He said:

"Congress and the Respective States are granted concurrent power to enforce the prohibition. The state of Wisconsin, having under the power reserved by and granted to it by the Eighteenth Amendment, enacted legislation to enforce the pro

hibition contained in such amendment and not having concurred in the congressional legislation, congress is without power to enforce its legislation as to strictly intra state transaction and override the state enactment."

If any of the above definitions are adopted by the court, beer containing 234 per cent alcohol may be sold in the states that do not prohibit it, or fail to concur in the act of Congress which fixes the standard at one-half of one per cent.

Concurrent Power as Defined by the Defenders of the 18th Amendment.-The Justice Department of the United States construed "Concurrent Power" in their brief as follows:

"There is an express purpose, of course, that Congress shall have power to legislate for the enforcement of the amendment. The only qualification or limitation of the power so conferred is that, instead of being exclusive, it shall be concurrent with a like power in the several States. It is not required that there shall be joint action by Congress and the States, or that the legislation enacted by the one shall be concurred in by the other."

* * *

It is to be noted that section II does not say that legislation shall be concurrent, but that the concurrent power to legislate shall exist. The concurrent power of the States and Congress to legislate is nothing new.

It is respectfully submitted that the validity of the Volstead Act does not depend in any sense upon whether it has been con curred in by the State of New Jersey or not."

Mr. Charles E. Hughes, former Justice of the Supreme Court, construed "Concurrent Power" in these words in his brief:

"If the intent had been to provide that the traffic should be prohibited, but that the prohibition should not be enforced in any state except by the law of the State, or with the consent of the State, it is difficult to see why the Amendment should have been made.

*

* *

"That this prohibition was established by an amendment to the Federal Constitution sufficiently indicates the intention to make the subject to which the prohibition. applies a matter of national concern; and,

as the prohibition of the manufacture and sale of intoxicating liquors was thus made a matter of national concern, it is impossible to conclude that it was intended that the Nation was to be denied authority to enforce the prohibition, except with the consent of the States. It is equally impossible to suppose that the authority of the Nation should be overriden, in case of conflict between National and state legislation."

Congressman Volstead, Chairman of the Judiciary Committee of the House, gave his opinion in the following words, which was quoted to the Court:

"The amendment cannot be enforced by granting the right to do certain things; it must be enforced by forbidding the things forbidden by the amendment. Any act left unpunished by a state, may, nevertheless, be punished by the National Government if such punishment tends to enforce the amendment, and likewise, to accomplish the same purpose, an act left unpunished by the National Government may be punished by the states."

Congressman Webb, the author of the 18th Amendment, now United States District Judge, expressed his views as follows:

"In other words, if a state, through its law-making body, does not consider it necessary to limit the alcoholic content to onehalf of one per cent, but thinks a two and three-quarter per cent sufficient, then, as a matter of course, any person in such state, who manufactured a beverage containing two and three-quarter per cent alcohol would not and could not be punishable by such state authorities for making such beverage, but such person would be liable to indictment by the federal authorities, because he had violated the federal act which limits the alcoholic content to less than onehalf of one per cent.

"Some wet states might not pass laws against the manufacture and sale of liquor at all, but their nonaction would certainly not prevent the prosecution of one of their citizens for violating the Volstead Act based upon the constitutional amendment."

Senator Nelson, Chairman of the Judiciary Committee of the Senate, stated it as follows:

"The concurrent legislative power conferred on the states is a power to enforce

and not to destroy or nullify the Amendment or any part of it. The States may pass laws to aid in enforcing the Amendment, but they are utterly without legislative power to in any wise nullify or destroy it."

Either the state or the United States may go as far in prohibiting the beverage traffic as Section II of the Eighteenth Amendment authorizes, but the failure of either to use all of its power does not prevent the other from doing so. When either unit of government does act within the scope of its authority and prohibits the traffic, the other unit cannot license or legalize the traffic within the territory covered by the authorized prohibition act. If the state attempts to override or set aside the valid laws of the United States by enacting license laws permitting the sale of prohibited beverage liquors, they will be of no avail because the vendor must obey the laws of the United States as well as those of the state. Likewise the Congress cannot license the sale of intoxicating liquors in conflict. with state laws, because there is no authority to license beverage intoxicants. It might prohibit intoxicants of a greater alcoholic content than is found in the laws of ne of the states but this does not prevent the state from enforcing its law. If either the state or the United States should at

tempt to license the sale of well recognized intoxicants, such acts would be clearly void as in contravention of the Constitution. Either the state or the United States may prohibit liquors not commonly recognized as intoxicants, because it is necessary to do so to secure the enforcement of the law against the recognized intoxicants. The manufacture, sale, transportation, importation and exportation of the traffic in intoxicating liquors is outlawed by the constitution. All laws which are necessary and appropriate to make this prohibition effective and enforceable are clearly authorized.

WAYNE B. Wheeler.

Washington, D. C.

THE EJUSDEM GENERIS PRINCIPLE OF INTERPRETATION.

The recent notable decision by Mr. Justice Sankey to the effect that a proclamation (No. 32) of 1918, enacted under § 43 of the Customs Act of 1876 is illegal, turned essentially on a principle of interpretation

of statutes and contracts well known in our law-the ejusdem generis rule.

Mr. (now Lord) Justice Scrutton thus explains it: "Where specific words are followed and amplified by the addition of gentheir application to things of the same kind eral words, the latter are to be confined in as the preceding specific words." And in further explanation of the principle, he points out that in this connection ejusdem generis does not mean "of the same kind," but "of the same genus;" in other words, it is used in its strict logical meaning, and not in a popular sense.

The question always is, whether a particular thing is within the same genus as the enumerated species; the question is not as is sometimes erroneously supposed, whether a particular thing is of a similar kind or like to the things enumerated.

Another point to be noted is that this rule. of construction only applies when the whole context and character of the document under consideration show that the general words which follow the specific words are descriptive of one well-marked genus to which these belong as species; otherwise the ordinary rule must obtain that prima facie general words ought to be taken like other words at their face value, and not in any restricted sense.

It is only when some indication exists that the parties to the document intend a restricted meaning that such restriction can be read into it. An analysis of the whole document in order to grasp its general scope, is, therefore, necessary before it can be decided whether or not the rule applies.

These observations will tend to a clearer appreciation of the question Mr. Justice

Sankey had before him. Section 43 of the Customs Act of 1876 provides that "the importation of arms, ammunition, gunpowder, or any other goods may be prohibited be proclamation or order in council." The point was, whether the phrase, “any other goods," means literally what it says, or whether its meaning is qualified by the context, namely, the preceding enumeration of three definite classes of goods.

His Lordship held that it was so quali fied. The goods enumerated were obviously of a genus, which, in his opinion, could not include the articles in respect of which the action was brought, namely, six packages of pyrogallic acid. They belonged to the genus "chemicals," not to the genus "utensils of war."

In view of the forthcoming argument in the Court of Appeal, we give a few leading instances of the application of the principle in other directions. In the case of Mudie

v. Strick and Co., Limited,' the demurrage clause of a charter partly contained the exception of "strikes, lockouts, civil commotions, or any other causes or accidents beyond the control of the consignees." The vessel was delayed through the scarcity of labor arising from the sanitary authorities burning the houses of native coolies to prevent the spread of plague. The consignees endeavored to show that this was a cause beyond their control, and therefore within the exceptions. The Judge held in the first place that it was not an accident. In doing so, he followed the case of Fenwick v. Schmal, in which the defendants, having agreed to load the plaintiff's ship with coal in regular and customary turn, except in case of "riots, strikes, or any other accidents beyond his control," and the loading having been delayed by a snowstorm, it was decided that such a cause of delay was not an accident.

Returning now to Mudie's case, there remained the argument that in any event the

(1) 25 T. L. R. 453. (2)

1868 L. R. 3 C. P. 313.

consignee was exempted by the general words. These words, in accordance with the principle of ejusdem generis, fell to be determined according to the class of circumstances exempted by the preceding particular words. The Court considered that the preceding particulars, "strikes, lockouts and civil commotions," disclosed a particular genus of exceptions, namely, either labor troubles, or disturbances which frightened people from going to their work. This being the genus, did plague fall within it? It was decided that it did not.

A decision which was much discussed in the arguments in Mudie's case was that of the S.S. Knutsford. A time-charter provided that should a port be inaccessible on account of "ice-blockade, or interdict, or should a port be deemed by the master unsafe, in consequence of war or any other cause, he might discharge the cargo for that port at a safe port at the risk of the cargo responsibility was declared to cease.” The owners, and on such discharge the ship's Knutsford was chartered to carry goods to Vladivostock, and on arriving off that port she found it inaccessible on account of ice. The captain, after waiting three days, left for Nagasaki, where the cargo was deposited. The charterers sued the shipowners for damages for failure to deliver. The defense was that the captain had deemed the port unsafe on account of ice, and, therefore, the ship was not responsible, because the charter provided that her responsibility should cease if the master deemed a port unsafe in consequence of war, or any other cause. It was held, however, that war and disturbance were things totally different from ice, and that the general words "or any other cause" could only cover matters of the same class as war and disturbThe shipowners were, accordingly, made liable because ice was not of that genus.

ance.

If, it may well be asked, the particulars specified in an exception clause cannot be

(3) 13 Com. Ca. 244.

put into one and the same genus, how are they to be read? Sarsen v. Sylvester and Co. is in point. The shipowners sued the charterers for demurrage under a charterparty, which contained an exception of "frosts, floods, strikes, lockouts, disputes between masters and men and any other unavoidable accidents or hindrances of what kind so ever beyond the control of the parties, preventing or delaying the loading." Delay was caused by congestion of shipping at Grimsby Dock. The charterers were held to be excused on the ground that the clause. in question evidently showed an intention that the general words should not be restricted to any one genus, but should get their ordinary meaning. Contrast with this the case of In re Richardson and Samuel. There the charter-party provided for loading at Batoum at a certain rate per day, and excepted, inter alia, strikes, lockouts, accidents to railways and other causes beyond the charterers' control. The cargo was oil, which was to be loaded at a certain factory. A flood up country damaged the railway which brought down the oil to the factory, and in consequence of this the workmen at the factory were discharged. Subsequently the railway was repaired and oil was sent down, but the discharged workmen could not be got together in sufficient numbers to permit of loading in time. It was held that the delay could not be attributed to accidents to railways, and was not ejusdem generis, with strikes and lockouts.

This last mentioned decision is closely analogous in method of interpretation to! Mudie v. Strick and Co., but neither of these cases can be reconciled with Sarsen v. Sylvester and Co., where the general words got a wider meaning because the preceding particulars could not be placed in one genus. Now, according to that principle, the particulars in the exception clause in Richardson's case, strikes, lockouts and accidents to railways cannot be placed in one

(4) 13 Com. Ca. (5) 1 Q. B. 261.

CLAY, C. Edith King, a married woman, was fined $30 by the police court of Owensboro for selling intoxicating liquor without a license. On appeal to the Daviess circuit court she was again found guilty, and her punishment fixed at a fine of $100 and costs. She appeals.

It is first insisted that the court erred in permitting the city to prove the license ordinance by filing a certified copy of only parts thereof. The copy introduced in evidence was certified by the city clerk as a true and correct copy. The record before us shows only those parts of the ordinance relating to liquor licenses. If, as a matter of fact, the certified copy of the ordinance was not complete, the defendant should have objected to its introduction on that ground, but, not having done so, she cannot avail herself of the error of the trial court, if any, in permitting only a partial copy of the ordinance to be introduced in evidence.

It is next insisted that the court erred in authorizing the jury to find the defendant guilty if they believed from the evidence, to the exclusion of a reasonable doubt, that she, without license to do, "either by herself, or by or through any person connected with her, sold any beer to the witness John Walt." It appears that defendant and her husband lived at 112 Madison street, and that the defendant con