of those shoes at $18, he is profiteering clearly upon the first lot of what only cost him $8. Now he does that upon the theory that if he sells these shoes out and goes into the market and buys again he will have to pay the higher price, but that does not excuse him. He is entitled to make a reasonable profit, but he certainly hasn't the right to take advantage of the former low purchase and take the same profit on them that he gets on the $12 shoes." In U. S. v. Myatt, District Judge Connor, of the Eastern District of North Carolina, said:

"It will be observed that the statute does not declare it unlawful to make an unjust or unreasonable profit upon sugar. The profit made is not the test, and may be entirely irrelevant to the guilt of the defendant he may within the language of the statute make an unreasonable and, therefore, unlawful 'rate of charge' without making any profit, or the rate of charge made may involve a loss to him upon the purchasing price."

The Court does not discuss the proposition that the case of Nash v. United States, 229 U. S. 373, had overturned Justice Brewer's decision in United States v. Tozer, 52 Fed. 917, in which the following quotation from Justice Brewer's opinion has been generally accepted as the law. Justice Brewer said:

"In order to constitute a crime, the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty."

The Supreme Court expressly affirms the Tozer case and points out that the Nash case, as well as the case of Waters Pierce Oil Co. v. Texas, 212 U. S. 86, and others, declaring the word "unreasonable" a proper description of an act defined as a crime, refer to statutes setting up other standards of criminality which, together with the word "unreasonable," was sufficient to render the crime definite and certain,

This is the identical argument we made in 91 Cent. Law J. 408, and we believe

the right rule should no longer be open to discussion. In the Nash case Justice Holmes declared that the legislature could provide various degrees of the offense of murder and that the difference might have to be left to the discretion of a jury, such as when negligence resulting in death is so gross as to constitute manslaughter.

But, as we said in our former criticism, we are inclined to the view, however, that the observations of Justice Holmes in the Nash case had no reference to conventional offenses unknown to the common law. A man knows. what murder is, although he may not know whether his particular conduct would be regarded as murder. But the offense constituted in the Lever Act is an unreasonable charge for necessaries. The gist of the offense is in the word “unreasonable" and not in the word "charge." Hitherto it has been understood that a man could sell his property for any price he desired. This is not the common law offense of extortion which could only be committed by a public officer who exacted more in fees or otherwise than the law allowed. Here the law fixed a standard and the officer exceeded it. No standard is fixed by the Lever Act. A man may have bought sugar at 10 cents and sold some of it for 11 cents. some for 12 cents, then 13 cents, 15 cents and finally 20 cents a pound. At what point in the course of these transactions did he violate the Lever Act?

In other words. when did the price become unreasonable? How is the ordinary business man or merchant to know when to stop? He ordinarily takes what the buyer is willing to offer. When is his act in accepting an offer for his merchandise criminal? Suppose wheat should go to $4.00, then to $5.00, then to $6.00 per bushel. At what point would the farmer be liable for charging an unreasonable price?

It is clear, it seems to us, that it is unfair and unjust to define a crime unknown to the common law by such an equivocal term as "unreasonable." If the crime is already known, such as theft, murder, monopoly,

etc., some conduct may be defined as sufficient to constitute this defense by the term unreasonable; but where the offense is carved out of a lawful act by declaring that if such an act becomes "unreasonable," the doer will be punished, the uncertainty is so great as to give no notice whatever to the one who commits it, whether the act is criminal or not. Some standard must be set by the law itself by which the unreasonableness of the act can be determined.

NOTES OF IMPORTANT DECISIONS.

CAN AN AUTOMOBILE COMMIT AN OF FENSE? The Supreme Court has held that an automobile can be regarded as an offender and seized accordingly even though the owner thereof is innocent of any offense. Grant Company v. United States, 41 Sup. Ct. 189.

The action was under Rev. St. § 3450 providing for the forfeiture of any conveyance used in the removal of any goods or commodities with intent to defraud the United States of the tax thereon. The Court held that this Act applied to an automobile used in the unlawful removal of distilled spirits, though a seller of the automobile, who retained title for the unpaid purchase money, was without guilt, and the statute so applied does not violate Const. Amend. 5, relative to due process of law, as the thing forfeited is primarily considered the offender.

This proceeding was a libel against a Hudson automobile of the appraised value of $800, and it charged that the automobile before its seizure was used by three persons who were named, in the removal and for the deposit and concealment of 58 gallons of distilled spirits upon which a tax was imposed by the United States, and had not been paid.

The defendant claimed that to take his interest in this car under the statute would be a violation of his Constitutional rights not to have his property taken from him without due process of law. The defendants, it was admitted, had nothing to do with the illegal transportation of liquor. They sold the car to one Thompson and retained the title to the automobile until payment had been made therefor. Thompson, it was admitted, used the car for the illegal purpose mentioned without the consent of the defendant who contended that it was against all principles of justice and com

mon fairness to make the innocent suffer for the sins of the guilty in which they do not participate and which they do not encourage. To this strong argument the Court said:

"Regarded in this abstraction the argument is formidable, but there are other and militating considerations. Congress must have taken into account the necessities of the government, its revenues and policies, and was faced with the necessity of making provision against their violation or evasion and the ways and means of violation or evasion. In breaches of revenue provisions, some forms of property are facilities, and therefore it may be said, that Congress interposes the care and responsibility of their owners in aid of the prohibitions of the law and its punitive provisions, by ascribing to the property a certain personality, a power of complicity and guilt in the wrong. In such case there is some analogy to a deodand by which a personal chattel that was immediate cause of the death of any reasonable creature was forfeited. To the superstitious reason to which the rule was ascribed, Blackstone adds: ""That such misfortunes are in part owing to the negligence of the owner, and therefore, he is properly punishable by such forfeiture.' "And he observed:

"A like punishment is in like cases inflicted by the Mosaical law: 'If an ox gore a man that he die, the ox shall be stoned, and his flesh shall be eaten.' And, among the Athenians, whatever was the cause of a man's death, by falling upon him, was exterminated or cast out of the dominions of the republic.'

"See. also, The Blackheath, 195 U. S. 361, 366, 367, 25 Sup. Ct. 46, 49 L. Ed. 236; Liverpool, etc., Nav. Co. v. Brooklyn Terminal, 251 U. S. 48, 53, 40 Sup. Ct. 66, 64 L. Ed. -."

It is strange that this section which has been in the Statutes since 1866 has not raised more serious controversies. But the Volstead Act. is likely to provoke many suits against vehicles (especially automobiles) used in the illegal transportation of liquor. This extension of the principle of admiralty law, that the thing itself by means of which a wrong is done is liable may be just the beginning of an important change in the common law theory of liability. Another extension of the doctrine, proposed in these columns not very many weeks ago by one of our correspondents, was to make an automobile liable for damages which it causes irrespective of the ownership of the automobile.

DOES AN AGREEMENT TO APPEAR IN SUNDAY PERFORMANCE WHERE SUCH PERFORMANCES ARE ILLEGAL, RENDER THE CONTRACT VOID?-Applying the familiar rule that the Court will presume that the parties to an agreement intended to make a legal contract, the United States Circuit Court of Appeals (Second Cir.) held, in the second case of Shubert Theatrical Co. v. Rath (February, 1921) that a provision in a theat

rical contract that defendant should appear in Sunday performances in New York and elsewhere if such performances were given meant only that he should appear if such performances were legal. On this point the Court gives an interesting history of the origin of Sunday laws. Justice Rogers, speaking for the Court, said:

"The Statute of 29 Charles II. c. 7, 1676, seems to have laid the foundation for the Sunday observance laws of England and of those in this country. It provided in its first section that no tradesman, artificer, workman, labourer or other person whatsoever shall do or exercise any worldly labour, business or work of their ordinary callings upon the Lord's Day, or any part thereof (works of necessity and charity only excepted).' In 27 Am. & Eng. Encyc. of Law, 389, it is said that "at common law judicial proceedings only were prohibited on Sunday. A person was not prohibited from doing his ordinary labor on Sunday, and the making of contracts was lawful.' In 37 Cyc., 545, it is also said that 'at common law all business other than judicial proceedings could be lawfully transacted on Sunday.' In Frolich on the Law of Motion Pictures and the Theater, p. 391, it is said: 'Sunday was not a dies non under the common law, and all regulations respecting the observance of Sunday and the prohibition of particular lines of activity are purely of statutory creation.' The law as above stated is supported by a number of court decisions (see Heiser v. Smith, 138 Cal., 216; Ward v. Ward, 75 Minn., 269; Merritt v. Earle, 29 N. Y., 116; Boynton v. Page, 13 Wend., 429; Eden v. People, 161 Ill., 296; Marengo v. Rowland, 263 III., 531). In Richardson v. Goddard (23 How., 28. 42) Mr. Justice Grier of the Supreme Court of the United States calls attention to the fact that in England formerly the courts sat even on Sunday, and that contracts made on that day were not regarded as void till the Statute of 29 Charles II, c. 7 (not 27, as he erroneously states), was enacted. We assume that in the absence of a statute participation in innocent amusements on Sunday is lawful. We also assume that contracts to perform on Sunday something prohibited by statute are void.'

The provision in this contract which was ob jected to, but which the Court held was not sufficient to vitiate the contract was that "we have the right to the use of your services in any theatres wherein we shall give Sunday concerts, and you shall appear and play in such concerts whenever we shall give you two (2) days' notice prior thereto of our desire to have you appear and naming the place where. Should you be out of the City of New York if such notice reaches you, you shall pay your expenses to the city where said concert is given, and the return to your city of engagement."

This decision is clearly in line with the weight of authority. Whenever there is doubt as to the necessity of performance on Sunday

in violation of the law, the courts resolve such doubts in favor of the construction that the parties intended to make a valid contract and that therefore performance on Sunday is required by such contracts only in places where Sunday performances are valid. Thus, an agreement to perform for twenty weeks is not an agreement to perform on Sunday (Goddard v. Morrissey, 172 Mass., 594). In Kelly v. London Pavilion (77 Law Times, 215), where a music-hall artiste engaged to perform "every evening," this was held to mean "every evening on which the music-hall may be legally opened and the artistes called upon to perform." In Lanatello v. Hammerstein (231 Pa., 56), the plaintiff had bound himself to sing certain operas "each day of the week" in New York and elsewhere in the United States. The Court said the law would not presume that the parties intended an unlawful thing. The presumption was that the plaintiff would not be required to sing on Sundays except in places where such singing was permitted. And in the instant case it cannot be said that the contract in any way violates the Sunday Ob servance Law of the State of New York.

INJURIES ARISING OUT OF AND IN THE COURSE OF THE EMPLOYMENT-IV-AS AFFECTED BY DISEASE, PRE-EXISTING OR SUBSEQUENTLY ARISING.*

Aggravation of Pre-existing Disease.The general rule of law relating to liability of the employer to pay conmpensation where an injury, arising out of and in the course of the employment, which results seriously by reason of its effect on a preexisting disease of the employee, has been stated in an Indiana case as folloys:

"Where one is injured through the negligence of another, the fact that the former is afflicted with or predisposed to some disease, and the injury materially aggravates or incites the disease and accelerates it to the stage of disability or to a fatal termination, and the forces which contribute, each materially, to produce such disability or death, are the disease and its aggravation or acceleration by the injury, the victim or

*This is the last of four consecutive articles on this important subject. The former articles will be found in the three issues of the Journal immediately preceding.

his representative has his remedy in cases. governed by the common law. Likewise the courts, consistent with the theory of workmen's compensation acts, hold with practical uniformity that, where an employee afflicted with disease receives a personal injury under such circumstances as that he might have appealed to the act for relief on account of the injury had there been no disease involved, but the disease as it in fact exists is by the injury materially aggravated or accelerated, resulting in disability or death, earlier than would have occurred, and, the disability or death does not result from the disease alone progressing naturally as it would have done under ordinary conditions, but the injury, aggravating and accelerating its progress, materially contributes to hasten its culmination in disability or death, there may be an award under the compensation acts."

The compensation acts do not afford compensation for injuries or misfortunes which merely are contemporaneous or coincident with the employment, and not every diseased person suffering a misfortune while at work is entitled to compensation. Yet it is the hazard of the employment acting upon the particular employee in his condition of health that determines the right to compensation, and not what that hazard would be if acting upon a healthy employee or upon the average employee. The acts make no distinction between wise or foolish, skilled or inexperienced, healthy or diseased employees. The substantial question is whether the diseased condition was the cause, or whether the employment was a proximate contributing cause. In the former case compensation is not recoverable; in the latter it is.2

It does not affect the right to compensation that the injury would not have caused the death of the employee but for his diseased condition, or that the injury may have been but one of concurring causes, set in motion by the injury.3

(1) In re Bowers. Ind. App., 116 N. E. 842. (2) In re Madden, 222 Mass. 487, 111 N. E. 379. L. R. A. 1916D 1000.

(3) Mazzarisi v. Ward & Tully, 170 App. Div. 868, 156 N. Y. Supp. 964; Winter v. AtkinsonFrizelle Co., 88 N. J. L. 401, 96 Atl. 360; Indian Creek Coal Co. v. Calvert, Ind. App., 119 N. E.

The test to be applied is, did the employment develop the injury in any material degree?*

However, proof of an injury, of an operation therefor, and that after apparent recovery from the effects of the operation and anaesthesia, the employee died from a disease existing before the injury, is not sufficient to establish death resulting from the injury.5

The Supreme Court of Michigan (which, judging from some of its decisions, does not understand the meaning of the word "accident," but confuses its meaning with that of accidental means), in denying compensation for the death of an employee who was suffering from heart disease, said: "The man died while doing the work he agreed to do, in the way he intended to do it. The exercise accounts for his death, and if he had been informed about the condition of his heart, he must have known that death was likely to result, at any time, from any considerable physical exercise. There is no evidence of mischance or miscalculation in what was being done, none of anything fortuitous or unexpected in the manner of doing it. There is undisputed evidence that he had a chronic trouble-disease-of the heart, of long standing, the wall of one auricle being so thin that any exertion at all might have been the cause of its breaking."

The finding in this case by the Industrial Commission was that, as a result of the straining connected with his work, the employee suffered a rupture of the right auricle of his heart, which caused his death. It will be seen, therefore, that what the Court has said either has no bearing on the question or indicates that compensation should have been awarded."

Heart Failure Due to Excitement.-Among the duties of a night watchman, who was

519; Puritan Bed Spring Co. v. Wolfe. Ind. App., 120 N. E. 417.

(4) Hartz v. Hartford Faience Co., 90 Conn. 539, 97 Atl. 1020.

(5) Tucillo V. Ward Baking Co., 180 App. Div, 302, 167 N. Y. Supp. 666.

(6) Stombaugh v. Peerless Wire Fence Co., Mich., 164 N. W. 537, 15 N. C. C. A. 635.

72 years of age, he was required to extinguish fires which might break out in the employer's plant, and if he could not do so, to spread an alarm for aid. On the evening in question he went to work in usual health, and took up his duties at 6 p. m. A few minutes thereafter a fire broke out in the plant, and deceased attempted to extinguish it and spread the alarm, and as a result of his efforts and the attendant excitement, he died of heart failure, death being hastened and caused, wholly or in part, thereby. Medical testimony showed that decedent had a weak heart, and that the excitement attending his experience with the fire tended to produce death. In reversing the decision of the Industrial Accident Board denying compensation, the Supreme Court said:

"In the instant case the whole circumstance, including the fire, the over-exertion and the excitement of the deceased, may be said to have been an accident. It certainly was a fortuitous circumstance. The fact that the man's condition predisposed him to such an accident or stroke must be, under the authorities, held to be immaterial. While the exertion and excitement which accelerated the heart action were not the sole proximate cause of death, they were certainly concurring causes."

דיי

Angina Pectoris.-A woman employee in a carpet factory had a weak heart condition before the injury in question and before she entered the employ of the carpet company. In the course of her employment she was pulling a carpet over a table in front of her when she "felt something give." She continued to work until after dinner, when she "felt something else give way," while she was at work. She was then taken to a hospital where she suffered an attack of angina pectoris, and thereafter she was disabled from working. It was held that it could be found that she suffered an injury arising out of and in the course of her employment, the Court holding that such an injury may be found where a pre-existing heart disease is accelerated to

(7) Schroetke v. Jackson-Church Co., Mich., 160 N. W. 383, 15 N. C. C. A. 637.

the point of disablement by the exertion and strain of the employment.8

Aneurysm. Decedent was engaged in work that required at times considerable physical effort. While so engaged he was seen by another employee to stagger and to hold his hand to his throat as if he were choking. Shortly thereafter decedent went home, and a physician was called. This physician testified that he found decedent suffering from an aneurysm-the bulging out of the wall of a blood vessel; that at first there was a weakened condition due to degenerative changes in the structure of the blood vessel; that the blood vessel would not give way without predisposing causes; and that "it would be the reasonable theory that decedent's condition was aggravated from some action on his part. immediately preceding the time I was called to see him." An award of compensation was affirmed.o

Arterial Sclerosis.-Where the deceased was suffering from an advanced stage of arterial sclerosis at the time he received a blow on the head, in the course of his employment, which ruptured a blood vessel, causing death, it was held that compensation was properly awarded, although had he not been so suffering, the blow he received in all probability would not have caused any serious injury.10

Pulmonary Tuberculosis.-The deceased was employed as a cutler, and while lifting a box of knives weighing 30 or 40 pounds, he fell against a vise on his work bench, striking his neck above the collar bone. Medical testimony was to the effect that a plaster was placed over the spot indicated as the point of injury; that deceased was sent home with instructions to refrain from walking or any violent exercise; that there was no abrasion on the neck, no discoloration, and no pain under pressure; and that