its decision in Daly v. Daly of which quotation and especial mention have been here made. WALTER B. WOLF.

CONSTITUTIONAL LAW-CONSTRUCTION OF THE SECURITIES ACT-BLUE SKY LAW.-The question of the constitutionality of the Illinois Securities Act (Blue Sky Law) was disposed of by the Supreme Court of Illinois in the case of Stewart v. Brady 300 III. 425, 133 N. E. 310. One Brady sold to plaintiff certain stocks in violation of the Securities Law and this action was brought for the restitution of the purchase price, under Section 37, which provides that every sale or contract of sale made in violation of any of the provisions of the law shall be void; and that the seller shall be liable upon tender back by the purchaser of the securities so sold to repay the purchase price.

It was argued that the act violates Sections 2 and 14 of Article 2, and Sections 13 and 22 of Article 4 of the constitution of this state. The pertinent constitutional objections referred principally to the classification and exemption of securities under the act.

The court approaches the question by first grounding the act on the police power of the state, saying: "The authority of the legislature to adopt a statute of this character is found in the police power for the promotion of the general welfare by the prevention of frauds." Classification of objects of legislation, if reasonably adapted to effect the purpose intended and if not purely arbitrary, need not be scientific, logical, or even consistent. In holding that in making a distinction between securities listed on certain selected stock exchanges and those not so listed, the act does not establish an arbitrary or unreasonable classification, nor confer special privileges upon the listed securities, the exchanges or dealers, as the fraud at which the act is aimed is the fraud possibly contained in the securities themselves and not the fraud in the marketing, sale, or disposition of such securities. The court says: "With such reasonable selection the court cannot interfere." By the same sentence it disposes of other exemptions contained in paragraph 3 of Section 5, including the sale of securities (of any character) by banks, trust companies, and building and loan associations.

The exemption of securities when sold by a certain class of corporations (where the sale of the same securities by corporations not of the designated class is a violation of the law) does not grant to such corporations a special privilege denied to others.

The classification of securities as "C" and "D," and the branding of securities falling in Class "D" as "Speculative Securities," is held not to be unreasonable, as such securities involve risk and loss greater than the ordinary investment; and having held the classification proper, it follows that it is proper to require such securities to be branded.

It is regrettable that Justice Duncan, who dissented, did not state in full the reasons for his position, for, it is submitted, in strict legal reasoning, the dissenting opinion would appear to be nearer the correct construction of the law.

Mr. Justice Duncan, dissenting, said in part:

"The statute allows the banks and the others of the privileged class to sell such securities as fall in classes 'C' and 'D' without paying any fees for the privilege and to sell them as they please without any public information on record as to what class they belong to, or that they are 'speculative securities,' etc. This provision violates Section 22 of Article 4 of the Constitution providing that the General Assembly shall pass no local or special law granting to any corporation, association, or individual any special or exclusive privilege, immunity or franchise whatever."

R. O. FARRELL.

ADMIRALTY-MARITIME TORT-LIABILITY OF THE STATEPERSONA-PERSONALITY OF A SHIP-MESONOMIC RELATION.-In United States v. Thompson 42 Sup. Ct. Rep. 159, ... U. S. ....... L. ed. ..., the question arose on petitions for prohibition to prevent certain District Courts from exercising jurisdiction of proceedings in rem for collisions that occurred while the vessels libeled were owned or under requisition by the United States and employed in public service. One of the vessels (owned by the United States) was delivered to the United States Shipping Board. Two other vessels were redelivered to the private owners. The libels were filed after such delivery and redelivery.

The ultimate question was whether after the disability to sue, because of the possession of the United States, was removed, a cause of action in admiralty remained. That question was answered by a divided court, the majority speaking through Mr. Justice Holmes, deciding in the negative and ordering a rule absolute for writs of prohibition. Stated in another form, the question was whether the collisions created tort obligations against the ships considered as persons. Mr. Justice Holmes disposes of this question in the following language:

"The United States has not consented to be sued for torts, and, therefore, it can not be said in a legal sense the United States has been guilty of a tort. For a tort is a tort in a legal sense only because the law has made it so. Legal obligations that exist but can not be enforced are ghosts that are seen in the law but that are too elusive to grasp."

The view of the minority, speaking through Mr. Justice McKenna, is expressed by Mr. Justice Field in The Siren 7 Wall. 152, 19 L. ed. 129, as follows:

"In such a case, the claim exists equally as if the vessel belonged to a private citizen, but for reasons of public policy, already stated, cannot be enforced by direct proceedings against the vessel. The inability [disability] to enforce the claim against the vessel is not inconsistent with its existence."

The majority opinion takes the position that the collisions did not create tort obligations-that the relations between the persons

harmed by the collisions and the ships (considered as persons) or between the persons harmed and the United States (if the personæ of the ships are to be considered as merged in the persona of the sovereign) were merely ethical and therefore anomic relations.

The minority opinion takes the position that when the collisions occurred, zeugmanomic relations were created in nexal claims for compensation, but that power of suit was suspended during control of the vessels by the United States. (For an explanation in detail of the terminology used, see (1921) "Nomic and Ânomic Relations" in Cornell L. Q. VII 11.)

We believe the crux of the disagreement between the learned justices lies in an inarticulate divergency as to the actual character of the legal relations. On this point we venture to think that both opinions misconceived the true juristic situation. The correct view of the relations created by the collisions, we think, is that they were not anomic (as contended, in effect, by the majority), nor were they zeugmanomic (as contended, in effect, by the minority), but that the relations created were mesonomic. The legal situation was precisely the same, in a juristic sense, as where an agent acting beyond his power to make his principal liable, converts the goods of another, or where a claim is unenforcible because of the Statute of Frauds or the Statute of Limitations. Such situations present mesonomic relations. In the illustrations given, these mesonomic relations may be converted into zeugmanomic relations, respectively, by the principal's acceptance of the fruits of the conversion, with knowledge; by the coming into existence of a memorandum to satisfy the statute; and by a new promise.

A difference must, however, be noted in the case of a claim against the sovereign. Where no possible method exists short of new legislation for procedural reception of such a claim, as, for example, in torts (or, more accurately, what would be properly called torts when committed by private persons), the claim from a legal standpoint is a naked claim, and the relation of the sovereign to the claimant at the best is ethical and, in any event, anomic. In such a case there can be no legal claim against the sovereign, because, as Mr. Justice Holmes correctly states, "the authority that makes the law is itself superior to it." This view is often attacked as contrary to the realistic function of the modern state and as being an immoral doctrine. Perhaps, from the standpoint of social science, it disregards the power elements in society which constrain even the state. Perhaps, from the standpoint of ethical doctrine, it is harsh and militant. Nevertheless, it is sound political and irrefragable legal doctrine. Without it, law would be swallowed up by moralistic chaos. Without it, the concept of the state would be swept to the four winds of the class struggle.

Where, however, the sovereign has opened a way for procedural reception of a claim against itself, the character of the claim is changed. It becomes a mesonomic relation as to the sovereign, and so far as the agents of the sovereign lie under duties to recognize it, such a claim may be accompanied by zeugmanomic relations

against the agents of the sovereign. The case at bar is an example of that kind of claim. No judicial proceeding could have been successfully predicated on it directly, neither while the United States. was in control of the ships nor afterward. Not during control, since that is clearly beyond debate and is not disputed. Not after control had ceased, because no way has been pointed out by the sovereign to change the character of the relation. The collisions. created mesonomic relations, neither more nor less, and these relations were in no respect changed when the vessels passed out of the hands of the United States. The relations continued to be mesonomic, i. e., they were defective legal relations, to the extent, at least, that they could not be procedurally asserted in the face of procedural objection. The case is in no way different from a claim barred by limitation. If it is barred, it remains barred until a new jural fact enters to give it a changed character.

The minority was clearly misled by the accompanying legal relation-the power to sue. There was a power to sue while the United States still had control of the vessels. That power, however, had it been exercised, would certainly have gone aground under clear law. Therefore, the power relation was no higher in juristic valuation than the claim relation. When the control of the vessels by the United States ceased-in other words, when the persona of the ship stood clear of the sovereignty of the United States-did the character of the power relation change for the better? The minority thought it did, and it was precisely on this rock that its reasoning foundered. The power to sue with effect could rise no higher than the claim sued upon. That claim, as we have attempted to show, was an element of a mesonomic relation which had in no way changed its juristic character when the control of the vessels by the United States ceased.

The majority, we think, reached the correct legal solution, but its view that the relations created by the collision were only anomic cannot in our judgment be supported. The case which the majority attempts (and, as we believe, successfully) to distinguish affords material for a demonstration. In The Siren 7 Wall 152, 19 L. ed. 129, it was held that when the United States comes into court to enforce a claim, it will be assumed to submit to just claims of third parties in respect of the same subject matter. The majority does not regard such claims as unenforcible claims but as ethical claims or the subject-matter of anomic relations. We think it perfectly clear that the state never deals with an ethical claim as such. True enough, it deals with ethical claims, but it is not on that theory that it deals with them. When the law deals with them in a coercive way, it proceeds along the path of law and not of morals. Claims of this kind recognized defensively are in no wise different from similar claims defensively recognized as between private persons. For example, a pledgee's claim of debt may be barred by limitation and yet his claim to the pledge may be defensively recognized in such a way as indirectly to lead to negative compulsory payment of the debt itself.

The point made that the persona of a public vessel is merged in the persona of the sovereign, we do not regard as of operative importance. We should be inclined to regard the immunity of the sovereign as extending to the ship and as in no way affecting the character of the legal relation raised. A persona is any entity to which the law attributes a capacity for legal relations. It may be noticed in passing that the persona is not the same thing as the object (e. g., a human being, a group of human beings, a succession of human beings, a ship, an estate) personified. For technical purpose the conceptual persona may survive the destruction of its material substrate or it may antedate its physical existence. Nor is persona the same thing as personality. Personality is the sum total of legal advantages and disadvantages of a persona.

It is possible to say, no doubt, that when a ship is owned by the sovereign and employed in public service, its persona is merged in the persona of the sovereign. That, however, is an extremely awkward operation from a technical viewpoint. That may be seen in the following illustrations. A ship built by private owners would have a persona. If the ship were sold to the government (even a municipal corporation: The Fidelity 16 Blatcf. 569, Fed. Cas. 4758 (1879); see also The Fidelity 9 Ben. 333, Fed. Cas. 4757) its persona would be merged. If the ship should on occasion happen to be used for a non-governmental purpose (The Davis 10 Wall. 15) its persona would for the time being be existent or visible, to be again destroyed or occluded when the ship was used for governmental purposes. If the sovereign should be the actor in litigation, its persona by retrospection would go back to the time of the claim set up by a reus or an intervenor. If the ship should be sold to private persons, its persona would be born anew. It seems to us that this theory of a disappearing and reappearing persona, while not unworkable with some strain of the imagination and complication of technical operation, is not an esthetic hypothesis. It is Teutonic in its lack of elegance and proportion.

Moreover, we do not understand that the court in The Fidelity (16 Blatchf. 569) went so far as to say that the persona of ship is merged in the persona of the sovereign. What the court did say (Waite, J., 8 Fed. Cas. 1191) was-"A public vessel is part of the sovereignty to which she belongs, and her liability is merged in that of the sovereign." Whether the court had in view the distinction between persona and personality is not clear, but the language points in that direction. Liability might be merged without merging persona. In other words, the personality of the ship (i. e., the aggregate of its legal advantages and disadvantages) might be swallowed up without affecting in the slightest way the personateness, the persona, of the ship. But it is clear that not even all the personality of the ship is diverted to a new channel. All the cases demonstrate in point of legal theory, if not also in point of verbal expression, that for the purpose of mesonomic relations both persona and personality survive.