United States v. Mescall/Opinion of the Court

by David Josiah Brewer

United States Supreme Court

215 U.S. 26

United States  v.  Mescall

 Argued: October 14, 1909. --- Decided: November 8, 1909

It appears that the trial court sustained the demurrer on the ground that, as to the offense charged, the statute, properly construed, does not include the defendant. The case is, therefore, one which may be brought to this court. United States v. Keitel, 211 U.S. 370, 53 L. ed. 230, 29 Sup. Ct. Rep. 123. But our inquiry is limited to the particular question decided by the court below. Id. 398.

Counsel for defendant invokes what is sometimes known

as Lord Tenderden's rule-that, where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described,-ejusdem generis. The particular words of description, it is urged, are 'owner, importer, consignee, agent.' The general term is 'other person,' and should be read as referring to someone similar to those named, whereas the defendant was not owner, importer, consignee, or agent, or of like class with either. He was not making, or attempting to make, an entry. He represented the government, and, contrary to his duties, was rendering assistance to the consignee, who was making the entry. But, as said in National Bank v. Ripley, 161 Mo. 126, 132, 61 S. W. 587, 588, in reference to the rule:

'But this is only a rule of construction to aid us in arriving at the real legislative intent. It is not a cast-iron rule, it does not override all other rules of construction, and it is never applied to defeat the real purpose of the statute, as that purpose may be gathered from the whole instrument. . . . Whilst it is aimed to preserve a meaning for the particular words, it is not intended to render meaningless the general words. Therefore, where the particular words exhaust the class, the general words must be construed as embracing something outside of that class. If the particular words exhaust the genus, there is nothing ejusdem generis left, and in such case we must give the general words a meaning outside of the class indicated by the particular words, or we must say that they are meaningless, and thereby sacrifice the general to preserve the particular words. In that case the rule would defeat its own purpose.'

See also Gillock v. People, 171 Ill. 307, 49 N. E. 712, and the cases cited in the opinion; Winters v. Duluth, 82 Minn. 127, 84 N. W. 788; Matthews v. Kimball, 70 Ark. 451, 462, 66 S. W. 651, 69 S. W. 547. Now, the party who makes an entry, using the term 'entry' in its narrower sense, is the owner, importer, consignee, or agent; and it must be used in that sense to give any force to the argument of counsel for defendant; but, used in that sense, the term 'other person' becomes surplusage. In § 1 of chap. 76, Laws of 1863 (12 Stat. at L. 738), is found a provision of like character to that in the first part of the section under which this indictment was found, but the language of the description there is 'owner, consignee, or agent.' This was changed by § 12, chap. 391, Laws 1874 (18 Stat. at L. 188), to read 'owner, importer, consignee, agent, or other person,' and that description has been continued in subsequent legislation. Evidently the addition in 1874 of the phrase 'other person' was intended to include persons having a different relation to the importation than the owner, importer, consignee, or agent. Congress was broadening the scope of the legislation and meaning to reach other persons having something to do in respect to the entry beyond that which was done by the owner, importer, consignee, or agent, or else the term 'other person' was a meaningless addition. Now, the defendant was a person, other than the owner, importer, consignee, or agent, by whose act the United States was deprived of a portion of its lawful duties. His act comes within the letter of the statute as well as within its purpose; and the intent of Congress in the legislation is the ultimate matter to be determined

The fact that he could not be punished in all respects as fully as the owner, in that he had no goods to be forfeited, is immaterial. United States v. Union Supply Co. 215 U.S. 50, 54 L. ed. --, 30 Sup. Ct. Rep. 15.

We are of opinion, therefore, that the trial court erred in sustaining the demurrer. The judgment is reversed and the case remanded for further proceedings.

Notes