Neel v. McCreery (1898) 17 Ohio C. C. 612, 9 Ohio C. D. 434.

In Arnot v. Alexander (1869) 44 Mo. 25, 100 Am. Dec. 252, the contract for renewal sought to be enforced was as follows: "If this lease shall not be terminated by forfeiture or any other cause before the expiration of the five years, then said lessee or his legal assigns shall be entitled to a renewal of the same for five years longer; provided said parties can agree upon terms, or that said lessee is willing to give as much as any other responsible party will agree to give." Denying the contention that this provision was too indefinite to be specifically enforced, the court said: "The uncertainty and indefiniteness complained of, upon which the defense is rested, are supposed to attach to the provisions respecting the quantum of rent to be reserved for the renewal term of the lease. The provision itself is express and unequivocal, although it fails to fix a specific amount of rent. That was to be determined by what other responsible parties would 'agree to give' at the expiration of the first term of five years. The amount of rent thus to be reserved is no more uncertain or indefinite than it is in all that class of cases where the amount of rent for the renewal terms is left to be determined by the valuation of third parties. In these cases it is not denied that the covenant for renewal is sufficiently definite, express, and unequivocal, to justify their enforcement in chancery. The court, in such cases, will hear evidence, and fix the amount of rent, and decree specific performance, or hold the covenant liable in damages for the breach of his covenant. Hall v. Warren (1804) 9 Ves. Jr. 605, 32 Eng. Reprint, 738; Blackmore v. Boardman (1859) 28 Mo. 420; Finney v. Cist (1863) 34 Mo. 303, 84 Am. Dec. 82; Garnhart v. Finney (1867) 40 Mo. 449, 93 Am. Dec. 303; 2 Story, Eq. Jur. §§ 722, 751. Leaving the amount of rent for the renewal term of the lease to be ascertained by what responsible parties would agree to pay for the use of the premises fixes the rent with as much certainty as though it were to be determined by a

board of appraisers to be selected by the parties to the lease, each selecting one, with authority in these to select a third in case the two should disagree. The standard of valuation would be the same in both cases, to wit, the rentable market value of the premises at the time the valuation should be made. If the court may hear evidence and ascertain for itself the value when the appraisement fails through a refusal to appoint an appraiser, why may it not hear evidence and decide the value when the appraisement fails from some other cause? The whole supposed difficulty rests upon the idea that what 'responsible parties will agree to give' for the use of rentable business property is different from and may be 'something more' than its full or highest rentable market value. This view of the subject we conceive to be erroneous. For whose benefit, and to what end, was this clause of renewal introduced into the deed of lease? Evidently it was intended for the benefit of the lessee, and may be supposed to have formed an inducement to the original renting. If the condition to the renewal included the payment by the lessee of anything more than the highest rentable market value of the leased premises, of what advantage could it be to him? Such a construction of the clause defeats the evident purpose and understanding of the parties, as that purpose and understanding is gathered from the language they employ. The lessee, instead of being put to a disadvantage in the general competition, was to be a favored party. By the terms of the contract he was to have the preference over other responsible bidders, and the irresponsible were excluded from the circle of competition. The amount of rent, therefore, was to be determined from the competition that might arise between exclusively responsible bidders in a fair and open market, that is, by the market value of the premises at the time of renewal. It is to be presumed that the parties contracted with reference to fair, reasonable, and practical results, and the language employed by them should

have a fair, reasonable and practical construction. While equity does not make contracts for parties, it gives construction to contracts which parties make for themselves, and therein employs the same rules of interpretation which prevail in courts of law. No forced construction which calculates remote chances and possibilities, and which tends rather to defeat than give effect to the real purposes of the contract, will be resorted to in order to turn an injured party over to inadequate legal remedies. It is against good conscience that the lessor in this case should be allowed a right of election whether he will honestly perform his covenant or simply pay damages for a breach of it; but it is in every way reasonable and just that the lessee should elect his remedy, and either take damages at law or have a specific performance in equity."

An agreement for the renewal of a lease on the lessee giving the same rent that the lessor "might be able to obtain from other parties" is too indefinite and uncertain to sustain a decree for specific performance, as the rate of rent cannot be certainly ascertained. Gelston v. Sigmund (1867) 27 Md. 334.

In Banman v. Binzen (1891) 47 N. Y. S. R. 67, 16 N. Y. Supp. 342, affirmed in (1892) 65 Hun, 39, 19 N. Y. Supp. 627, wherein it appeared that a covenant for renewal merely provided that on the expiration of the lease the lessor would "renew the lease," it was held that the contract was too indefinite, both as to the length of the term and the rent to be paid, to be specifically enforced. The court said: "I am of opinion that the specific performance sought cannot be decreed, because the covenant for a renewal is too indefinite, from not naming the length of term or rental to be paid. It would be impossible for the court to render a decree without making a contract for the parties in those respects. There are no provisions in the writing to enable the court to determine the duration of the renewal lease and the rent to be paid. The manifest ab sence of particularity is fatal.”

Where a lessee has violated the terms of his lease as to the uses to which the premises shall be put, he cannot obtain a decree for specific performance of a covenant in the lease for renewal. Gannett V. Albree (1869) 103 Mass. 372.

An agreement in a lease for a renewal term, "rent to be apportioned to the valuation of the said premises at said time," has been held to be too vague to permit of enforcement by specific performance. Pray v. Clark (1873) 113 Mass. 283, wherein it was said: "The agreement sought to be enforced is not complete in all its terms. It is not simply for a renewal of the lease. The agreement does not fix the rate of rent, and does not permit it to be fixed by the reservation in the original lease. The only means of determining what it shall be are that it is to be 'proportioned to the valuation of said premises at said time.' But no valuation is provided for, and no mode indicated by which such valuation may be obtained. If it were obtainable, the proportion would still be inadequate for its own resolution, because the terms of the corresponding ratio are uncertain. If the rent of the original lease be taken as one of those terms, the other is wanting. It does not appear by what valuation that rent was fixed. The agreement is too uncertain and vague in its essential terms to justify the court in undertaking to conjecture what may have been intended for the purpose of enforcing upon the parties some contract of the kind to which their writing relates."

It has been held that the fact that a tenant holding under a lease containing a covenant for renewal did not ask for a new lease for four years after the original lease had expired did not preclude his having specific performance of the agreement, when the landlord did not call on him to exercise his option or decline it at an earlier period. Moss v. Barton (1866) L. R. 1 Eq. 474, 35 Beav. 197, 55 Eng. Reprint, 870, 13 L. T. N. S. 623.

M. B.

was entered dismissing the action, from which the plaintiff appeals.

The question to be determined is whether the industrial insurance department of the state government has the right to collect from an employer engaged in the business of stevedoring a percentage of his pay roll. In other words, is the stevedoring business within the jurisdiction of the industrial insurance department, as are other extrahazardous industries in the state? Section 2 of chapter 67 of the Laws of 1919 provides that "the provisions of this act [the Workmen's Compensation Act] shall apply to employers and workmen engaged in maritime works or occupations only in cases where and to the extent that the pay roll of such workmen may and shall be clearly separable and distinguishable from the pay roll of workmen employed under circumstances in which a liability now exists or may hereafter exist in the courts of admiralty of the United States.

On the 7th day of November, 1921, the industrial insurance department passed a resolution determining and establishing the percentage of the pay roll which should be exacted from those engaged in the stevedoring business. It was to collect this premium that the present action was brought. The work of a stevedore is maritime in its nature, and the rights and liabilities of the parties connected therewith are matters which are within the admiralty jurisdiction of the United States. This is settled by the holdings of the United States Supreme Court, which were followed by this court in State ex rel. Jarvis v. Daggett, 87 Wash. 253, L.R.A.1916A, 446, 151 Pac. 648, 10 N. C. C. A. 688. It is said, however, that the Congress of the United States has taken from the Federal district courts jurisdiction over admiralty matters where, under the workmen's compensation law of any state, district, or territory, there is a complete remedy. The question to be determined is one under the 31 A.L.R.-33.

Constitution of the United States, the acts of Congress, and the holdings of the Federal Supreme Court. Reference will first be made to the acts of Congress.

Prior to 1917, clause 3 of §§ 24 and 256 of the Judicial Code (U. S. Comp. Stat. §§ 991[3], 1233, 4 Fed. Stat. Anno. 2d ed. pp. 839, 5 Fed. Stat. Anno. 2d ed. p. 921) provided that the district courts should have jurisdiction 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." On October 6, 1917 (40 Stat. at L. 395, chap. 97, U. S. Comp. Stat. §§ 991 (3), 1233, Fed. Stat. Anno. Supp. 1918, pp. 401, 415), §§ 24 and 256 of the Judicial Code were amended by adding a clause saving to claimants "the rights and remedies under the workmen's compensation law of any state." This act will be referred to as the 1917 Amendment. In Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 64 L. ed. 834, 11 A.L.R. 1145, 40 Sup. Ct. Rep. 438, 20 N. C. C. A. 635, that amendment was held to be unconstitutional. On June 10, 1922 (42 Stat. at L. 634, chap. 216, Comp. Stat. §§ 991(3), 1233, Fed. Stat. Anno. Supp. 1922, p. 225), Congress passed another amendatory act which declared, among other things, that the rights and remedies conferred under the workmen's compensation law of any state, district, territory, or possession of the United States should be exclusive, and provided "that the jurisdiction of the district courts shall not extend to causes arising out of injuries to or death of persons other than the master or members of the crew, for which compensation is provided by the workmen's compensation law of any state, district, territory, or possession of the United States."

By this amendment Congress attempted to take from the district courts jurisdiction where the workmen's compensation law of any state, district, or territory had given a remedy. It was an attempt, in

effect, to bring within the workmen's compensation law of any state or territory, a branch or a part of the admiralty jurisdiction of the United States. If Congress can do this, the industrial insurance department of the state had a right to collect from the respondent premiums upon its pay roll, but Congress has not the exclusive right in determining where matters which are within the admiralty jurisdiction of the United States shall be adjudicated. Article 3, § 2, of the Federal Constitution, provides, in part, as follows: "The judicial power shall extend to all cases of admiralty and maritime jurisdiction.

in The Lottawanna (Rodd v. Heartt) 21 Wall. 558, 22 L. ed. 654, the extent of the maritime law operative throughout the United States was discussed, and it was there said that the Constitution, in the provision above quoted, must have referred to a system of law coextensive with, and operating uniformly in, the whole country. The language of the court was as follows:

"That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted was most certainly intended and referred to, when it was declared in that instrument that the judicial power of the United States shall extend 'to all cases of admiralty and maritime jurisdiction.' But by what criterion are we to ascertain the precise limits of the law thus adopted? The Constitution does not define it. It does not declare whether it was intended to embrace the entire maritime law as expounded in the treatises, or only the limited and restricted system which was received in England, or, lastly, such modification of both of these as was accepted and recognized as law in this country. Nor does the Constitution attempt to draw the boundary

line between maritime law and local law; nor does it lay down any criterion for ascertaining that boundary. It assumes that the meaning of the phrase 'admiralty and maritime jurisdiction' is well understood. It treats this matter as it does the cognate ones of common law and equity, when it speaks of 'cases in law and equity,' or of 'suits at common law,' without defining those terms, assuming them to be known and understood.

It

"One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several states, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the states with each other or with foreign states."

In Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 58 L. ed. 1208, 51 L.R.A. (N.S.) 1157, 34 Sup. Ct. Rep. 733, it was held that a maritime tort was embraced within the constitutional grant. It was there said: "The Constitution provides that the judicial power shall extend 'to all cases of admiralty and maritime jurisdiction,' and the act of Congress defines the jurisdiction of the district court, with respect to civil causes, in terms of like scope. To hold that a case of a tort committed on board a ship in navigable waters, by one who has undertaken a maritime service, against one engaged in the performance of that service, is not embraced within the constitutional grant and the jurisdictional act, would be to establish a limitation wholly without warrant."

In Southern P. Co. v. Jensen, 244 U. S. 205, 61 L. ed. 1086, L.R.A. 1918C, 451, 37 Sup. Ct. Rep. 524, Ann. Cas. 1917E, 900, 14 N. C. C. A. 597, it was pointed out that it was difficult, if not impossible, to