Davidow had worked for the defendant company as a stenographer from April 20, 1917, to August 11, 1917, at which time he was discharged. When this occurred there was due him the sum of $12.32, the wages for four days. The defendant failed to pay this amount and to date of the trial it still remained unpaid. Judgment was rendered for plaintiff in the sum of $12.32 plus 10 per cent per day, amounting in all to a sum in excess of $500. The company appealed, claiming the law was unconstitutional. The court accepted this contention and modified the decision, limiting the plaintiff's recovery to $12.32 and interest. The opinion is in part as follows:

It will be observed that by the title of the act the purpose of the legislation is to regulate the time of payment of wages to employees of manufacturing, mercantile, etc., companies or corporations. The title contains no hint even that failure to comply with the terms of the statute will render the employer liable to pay more than the amount of wages due the employee by way of liquidated damages. The subject of liquidated damages is not mentioned in the title. It is stated in the title that the act provides a penalty for a violation thereof. But there is a marked difference between a penalty and liquidated damages. Section 21 of article 5 of the constitution of this State provides that "no law shall embrace more than one object, which shall be expressed in its title." Should the subject of liquidated damages have been named or expressed in the title? While it was not designed to require the body of the act to be a mere repetition of the title, yet it might be urged that so vital a matter as the addition of 10 per cent of the amount due for each day that the amount remains unpaid should have been indicated in the title.

The question whether the burden imposed by this statute upon the defaulting employer is in any sense liquidated damages may well be considered. Were we dealing with a contract between private parties where similar language was used, we would not hesitate to hold that the sum here imposed was a penalty and not liquidated damages. (Jaquith v. Hudson, 5 Mich. 123.)

Here there is no penalty provided for in the act. A penalty must be expressly created and imposed by statute, and can not be raised or extended by implication. (13 Am. & Eng. Ency. of Law (2d ed.) 55, and cases cited.) It has been held that where liquidated damages are claimed for the nonpayment of a sum of money, and such damages exceed the lawful rate of interest, they are necessarily in violation of the law of usury, and will not be allowed. See 13 Cyc. 101, note 56. Here by the terms of this anomalous statute there is no attempt to impose a penalty, but the term "liquidated damages for such failure" is used.

We are of the opinion that the statute under consideration constitutes class legislation of the most objectionable kind. The classification is arbitrary and oppressive and without any valid reason for its basis. It seeks, under the guise of liquidated damages, to impose a penalty for the benefit of the employee, not provided for in the act, which is confiscatory and unreasonable.

The judgment of the court below will be reversed, and, as the case is here upon case made, judgment may be entered in this court for

the plaintiff for the sum of $12.32, with interest thereon from August 13, 1917, with costs to appellant.

WAGES-VACATIONS-RIGHT OF EMPLOYEE TO PAY DURING VACATION-Vaile v. Walker Const. Co., District Court of Appeals, Second District, California (Dec. 1, 1919), 186 Pacific Reporter, page 602.This action is upon a contract of employment wherein Vaile seeks to recover a certain sum of money which he claims is due him as wages. In defense of this action the defendant employer claims that Vaile is not entitled to be paid for time spent by him on vacation. and that he should not be permitted to calculate such wages as a part of the sum he claims is due him. On this point the court ruled as follows:

Appellant's contention that plaintiff was not entitled to compensation for periods of time in each year covered by his service during which he was on vacation is without merit. The evidence shows that the vacations taken by him were not only in accordance with the prevailing custom in the employment in which plaintiff was engaged, but that defendant, as such employer, in each case assented thereto, and, except as to the last year, paid his full salary, thus recognizing his right to take a vacation without any deduction from his salary.

WORKMAN'S COMPENSATION-ADMIRALTY-CONSTITUTIONALITY OF AMENDMENT TO JUDICIAL CODE-Knickerbocker Ice Co. v. Stewart, United States Supreme Court (May 17, 1920), 40 Supreme Court Reporter, page 438.-William Stewart, while employed by the Knickerbocker Ice Co. as a bargeman, and while he was doing work of a maritime nature fell into the Hudson River and was drowned. His widow elected to take compensation under the State workmen's compensation act and was allowed an award. The employer appealed from this award, first to the appellate division of the New York Supreme Court and thence to the court of appeals, but in each case the award of the industrial commission allowing compensation was affirmed. Thereupon the employer took the case to the United States Supreme Court on a writ of error. The Supreme Court reversed the decision of the New York Court of Appeals and remanded the case for further proceedings. A dissenting opinion was rendered by Mr. Justice Holmes, in which Justices Pitney, Brandeis, and Clarke concurred. These same justices dissented in the opinion handed down in the case of Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524 (see Bul. No. 246, p. 203).

When New York first passed a workmen's compensation law its constitutionality was assailed in the United States Supreme Court

in the Jensen case, in which the State courts had affirmed an award for maritime injuries, and the law was declared unconstitutional because it compulsorily included employers engaged in maritime work as well as those engaged in industrial enterprises. This inclusion of maritime cases was held to be an invasion of the exclusive jurisdiction vested in the Federal courts under section 2, Article III, of the Federal Judicial Code. Subsequent to the decision rendered in the Jensen case Congress amended clause 3 of section 256 of the Judicial Code, which contains a saving clause allowing suitors to choose whether to sue in admiralty or at common law by adding thereto the following: "And to claimants the rights and remedies under the workmen's compensation laws of any State," so that the third clause reads as follows:

The district courts shall have original jurisdiction as follows:

*

*

*

*

*

Third. Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it, and to claimants the rights and remedies under the workmen's compensation laws of any State.

The ice company in this case contended that the New York workmen's compensation law did not in any way apply to it notwithstanding the amendment to the Judicial Code above quoted. It based its case almost entirely upon the decision in the Jensen case, and maintained that Congress had no authority to make the workmen's compensation laws of any State applicable to admiralty or maritime cases. In this contention the company was upheld by the Supreme Court, which declared the aforementioned amendment to the Judicial Code unconstitutional and void. Mr. Justice McReynolds, who rendered the majority opinion, said in part:

The act [amendment to clause 3, sec. 256, Judicial Code] only undertook to add certain specified rights and remedies to a saving clause within a code section conferring jurisdiction. We have held that before the amendment and irrespective of that section, such rights and remedies did not apply to maritime torts because they were inconsistent with paramount Federal law-within that field they had no existence. Were the words therefore wholly ineffective? The usual function of a saving clause is to preserve something from immediate interference-not to create; and the rule is that expression by the legislature of an erroneous opinion concerning the law does not alter it.

Neither branch of Congress devoted much debate to the act under consideration-altogether, less than two pages of the Record. The Judiciary Committee of the House made no report; but a brief one by the Senate Judiciary Committee probably indicates the general legislative purpose. And, with this and the accompanying circumstances, the words must be read.

Having regard to all these things, we conclude that Congress undertook to permit application of workmen's compensation laws of the several States to injuries within admiralty and maritime jurisdiction; and to save such statutes from the objections pointed out in Southern Pacific Co. v. Jensen. It sought to authorize and sanction action by the States in prescribing and enforcing, as to all parties concerned, rights. obligations, liabilities, and remedies designed to provide compensation for injuries suffered by employees engaged in maritime work.

And so construed, we think the enactment is beyond the power of Congress. Its power to legislate concerning the rights and liabilities within the maritime jurisdiction and remedies for their enforcement, arises from the Constitution as above indicated. The definite object of the grant was to commit direct control to the Federal Government: to relieve maritime commerce from unnecessary burdens and disadvantages incident to discordant legislation; and to establish, so far as practicable, harmonious and uniform rules applicable throughout every part of the Union.

The dissenting opinion, as presented by Mr. Justice Holmes, after reciting the reference to the amended sections of the Judicial Code, continues in part as follows:

Those sections in similar terms declared the jurisdiction of the district court and the exclusive jurisdiction of the courts of the United States, "of all civil cases of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it." The amendment added, "and to claimants the rights and remedies under the workmen's compensation laws of any State." I thought that claimants had those rights before. I think that they do now, both for the old reasons and for the new ones.

I do not suppose that anyone would say that the words, "The judicial power shall extend to all cases of admiralty and maritime jurisdiction," Constitution, Article III, section 3, by implication enacted a whole code for master and servant at sea, that could be modified only by a constitutional amendment. But somehow or other the ordinary common-law rules of liability as between master and servant have come to be applied to a considerable extent in admiralty. If my explanation, that the source is the common law of the several States, is not accepted, I can only say, I do not know how, unless by the fiat of the judges. But surely the power that imposed the obligation can change it, and I suppose Congress can do as much as the judges who introduced the rules, for we know that they were introduced and can not have been elicited by logic alone from the medieval sea laws.

But if Congress can legislate it has done so. It has adopted statutes that were in force when the act of October 6, 1917, was passed, and to that extent has acted as definitely as if it had repeated the words used by the several States-not an unfamiliar form of law. [Cases cited.] An act of Congress, we always say, will be construed so as to sustain it, if possible, and therefore if it were necessary, the words "rights and remedies under the workmen's compensation laws

of any State" should be taken to refer solely to laws existing at the time, as it certainly does at least include them.

* * *

The only question before us is whether the words in the Constitution, "The judicial power shall extend to all cases of admiralty and maritime jurisdiction" prohibit Congress from passing a law in the form of the New York workmen's compensation act, if not in its present form, at least in the form in which it stood on October 6, 1917. I am of the opinion that the New York law at the time of the trial should be applied and the judgment should be affirmed.

It is interesting to note in connection with the foregoing decision that of the Supreme Court of California, in the case Sudden & Christenson v. Ind. Com., 188 Pac. 803, rendered March 13, 1920, some weeks prior to the action of the Supreme Court of the United States, involving the same points. The California court reached the same conclusion of unconstitutionality, using the same reasoning, and arguing against the findings of the Court of Appeals of New York from which the ice company had appealed.

WORKMEN'S COMPENSATION-AGRICULTURAL LABOR-FISH FARMING-Krobitzsch v. Industrial Accident Commission et al., Supreme Court of California (Nov. 19, 1919), 185 Pacific Reporter, page 396.-Krobitzsch conducted a trout farm on which he raised trout for domestic use, and to take charge of which he employed one Starkey. While Starkey was engaged in removing some brush and fernbrakes from the vicinity of a flume he fell from the wagon with which he was hauling away the brush and was injured by a pitchfork falling upon him. Later he died from his injuries, and upon making claim there for his widow was granted an award of compensation and for funeral expenses under the workmen's compensation act of 1917. The employer applied for certiorari to review the award, declaring that it should not have been granted as the work Starkey was doing when injured was "fish farming," an occupation claimed to be excluded from the benefits of the compensation act by virtue of section 8, subdivision "a," part of which reads as follows:

*Excluding any employee engaged in household domestic service, farm, dairy, agricultural, viticultural, or horticultural labor, in stock or poultry raising.

* * *

The court refused to accept this construction of the statute and affirmed the award, saying in part:

We are of the opinion that the petitioner is not entitled to exemption under the provisions of this act. It seems clear beyond question that the legislature did not intend to use in a general sense the terms employed in describing the excluded classes. If that had been the

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