CONSTITUTIONALITY OF RENT ACT AND CITATIONS OF DECISIONS

In analyzing the proposed rent act, I shall endeavor to divide in into three parts:

(1) The power of the Congress to enact legislation for the District of Columbia.

(2) The constitutionality of the subject matter.

(3) The taking of private property without due process of law, and the impairment of contracts.

First. The Constitution of the United States provides, in Article I, section 8, subsections 17 and 18, as follows:

'(17) To exercise exclusive legislation, in all cases whatsoever, over such District (not exceeding 10 miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings; and

"(18) To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof."

The Court of Appeals, District of Columbia, in the case of Kennedy Bros. v. Sinclair (287 Fed. Rep. 972), decided March 5, 1923, had the following to say on this phase of the question involved:

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"In discussing the fourteenth amendment' perhaps the denial by any State of the equal protection of its laws to any person within its jurisdiction and possible under normal conditions section 106 (of the District rent law), if passed by the State, would be open to the objection made by counsel for appellants. As the inhibition of the amendment is limited by its terms to legislation by the States., it can hardly be extended to legislation by Congress, unless we imply a limitation which was not expressed. We are not prepared to go that far, and if we were so disposed, as a matter of first impression, we certainly can not set at naught the decision of the Supreme Court of the United States."

The Supreme Court of the United States, in the case of James Everard's Breweries v. Day (265 U. S. 559), decided on the 9th day of June, 1924, in an opinion rendered by Mr. Justice Sanford, interpreted very clearly that Congress might legislate on all matters affecting this District. This will be seen from the following excerpt taken from the said opinion:

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"The Constitution conferred upon Congress the power to make all laws necessary and proper for carrying into execution all powers that are invested in it. (Art. I, sec. 8. clause 1, 18.) In the exercise of such enumerative or * implied' powers it has long been settled that Congress is not limited to such measures as are indispensable and necessary to give effect to its expressed powers, but in the exercise of its discretion as to the means of carrying them into execution may adopt any means, appearing to it most eligible and appropriate, which are adapted to the end to be accomplished and sustained with the letter and spirit of the Constitution. (U. S. v. Fisher, 2 Cranch, 348, 395; Martin v. Hunter's Lessee, 1 Wheat. 304, 326; McCullock v. Maryland, supra, 4 Wheat. 316, 421, 422; Ex parte Curtis, 106 U. S. 371, 372; Legal Tender cases, 110 U. S. 421, 440; in re Rapier, 143 U. S. 110, 134; Logan r. U. S., 144 U. S. 263, 283; Fong Yue Ting v. United States, 149 U. S. 698, 712; Lottery cases, supra, 188 U. S. 321, 355; Hoke r. United States, 227 U. S. 308, 323 *.) It is likewise well settled that where laws adopted by Congress are not prohibited and are calculated to effect the object intrusted to it this court may not inquire into the degree of their necessity; as this would be to pass the line which circumscribes the judicial department and to tread upon legislative ground. (McCullock r. Maryland, supra, p. 423; Legal Tender Cases. supra, p. 450; Fong Yue Ting r. United States, supra, p. 713.) Nor may it inquire as to the wisdom of the legislation. (Legal Tender cases, supra, p. 450; McCrae v. United States, 195 U. S. 27, 54; Hamilton r. Kentucky Distilleries Co., 251 U. S. 146. 141.) What it may consider is whether that which has been done by Congress has gone beyond the constitutional limits upon its legislative discretion. (Ex. parte Curtis, supra, p. 373 *.) In enacting this legislation Congress has affirmed its validity. That determination must be given great weight; this court, by an unbroken line of decisions, having

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'steadily adhered to the rule that every possible presumption is in favor of the validity of an act of Congress until overcome beyond rational doubt.' (Adkins v. Children's Hospital, 261 U. S. 525, 544.)"

In the case of Children's Hospital v. Adkins (284 Fed. 613), the Court of Appeals, District of Columbia, decided November 6, 1922, Mr. Justice Van Orsdel, in speaking for the court, says:

"When Congress legislates for the District of Columbia, it may exercise the police power and all its plentitude. (Washington Terminal Co. v. District of Columbia, 36 App. D. C. 186, 191; District of Columbia v. Brooke, 214 U. S. 138.) About this there is no dispute. Under that power it has the right 'to enact laws for the promotion of the health, safety, morals, and welfare of those subject to its jurisdiction. (Chicago, Burlington & Quincy R. R. Co. г. McQuire, 219 U. S. 549, 568,

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Second. In considering the second phase, or the constitutionality of the subject matter of this act, it is not necessary to go beyond the determinations of the Supreme Court of the United States, for the reason that said court has seen fit, since its original opinion in the Hirsh-Block case, to pass on certain phases of it.

In the case of Block v. Hirsh (256 U. S. 135), the court, speaking through Mr. Justice Holmes, says:

"The general proposition to be maintained is that circumstances have clothed the letting of buildings in the District of Columbia with a public interest so great as to justify regulation by law. Plainly circumstances may so change in time or so differ in space as to clothe with such an interest what at other times or in other places would be a matter of purely private concern. It is enough to refer to the decisions as to insurance in German Alliance Insurance Co. v. Lewis (233 U. S. 389); irrigation, in Clark v. Nash (198 U. S. 361); and mining, in Strickley v. Highland Boy Gold Mining Co. (200 U. S. 527). They sufficiently illustrate what hardly would be denied. They illustrate also that the use by the public generally of each specific thing affected can not be made the test of public interest, Mount Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co. (240 U. S. 30, 32), and that the public interest may extend to the use of land. They dispel the notion that what in its immediate aspect may be only a private transaction may not be raised by its class or character to a public affair. See also Noble State Bank v. Haskell (219 U. S. 104, 110, 111).

"The fact that tangible property is also visible tends to give a rigidity to our conception of our rights in it that we do not attach to others less concretely clothed. But the notion that the former are exempt from the legislative modification required from time to time in civilized life is contradicted not only by the doctrine of eminent domain, under which what is taken is paid for, but by that of the police power in its proper sense, under which property rights may be cut down, and to that extent taken without pay. Under the police power the right to erect buildings in a certain quarter of a city may be limited to from 80 to 100 feet. (Welch v. Swasey (214 U. S. 91.) Safe pillars may be required in coal mines. (Plymouth Coal Co. v. Pennsylvania, (232 U. S. 531.) Billboards in cities may be regulated. (St. Louis Poster Advertising Co. v. St. Louis (249 U. S. 269.) Watersheds in the country may be kept clear. (Perley v. North Carolina (249 U. S. 511.) These cases are enough to establish that a public exigency will justify the legislature in restricting property rights in land to a certain extent without compensation. But if to answer one need the legislature may limit height, to answer another it may limit rent. We do not perceive any reason for denying the justification held good in the foregoing cases to a law limiting the property rights now in question if the public exigency requires that. The reasons are of a different nature, but they certainly are not less pressing. Congress has stated the unquestionable embarrassment of Government and danger to the public health in the existing condition of things. The space in Washington is neccessarily monopolized in comparatively few hands, and letting portions of it is as much a business as any other. Housing is a necessary of life. All the elements of a public interest justifying some degree of public control are present. The only matter that seems to us open to debate is whether the statute goes too far. For just as there comes a point at which the police power ceases and leaves only that of eminent domain, it may be conceded that regulations of the present sort pressed to a certain height might amount to a taking without due process of law. (Martin v. District of Columbia (205 U. S. 135.)

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"The general question to which we have adverted must be decided, if not in this, then in the next case, and it should be disposed of now. The main point against the law is that tenants are allowed to remain in possession at the same rent that they have been paying, unless modified by the commission established by the act, and that thus the use of the land and the right of the owner to do what he will with his own and to make what contracts he pleases are cut down. But if the public interest be established the regulation of rates is one of the first forms in which it is asserted, and the validity of such regulation has been settled since Munn v. Illinois (94 U. S. 113).

"The statute is objected to on the further ground that landlords and tenants are deprived by it of a trial by jury on the right to possession of the land. If the power of the commission established by the statute to regulate the relation is established, as we think it is, by what we have said, this objection amounts to little. To regulate the relation and to decide the facts affecting it are hardly separable. While the act is in force there is little to decide except whether the rent allowed is reasonable, and upon that question the courts are given the last word."

I desire, at this point, to especially emphasize the fact that while the courts, in a number of cases, have referred to the Hirsh-Block case, yet in no case has the constitutionality of the said Hirsh-Block decision been successfully attacked, and that in practically every instance the question of emergency has been the subject which has been seriously considered by the later decisions.

Supporting the said affirmative language of the majority opinion in the above (Hirsh-Block) case, wherein the police powers are clearly brought forth in support of its said decision, we find the following excerpt taken from the minority opinion:

"Besides, it is not sustained as the expedient of an occasion, the insistence of an emergency, but as a power in government over property based on the decisions of this court whose extent and efficacy the opinion takes pains to set forth and illustrate. And as a power in government. if it exist at all, it is perennial and universal, and can give what duration it pleases to its exercise, whether for two years or for more than two years. If it can be made to endure for two years, it can be made to endure for more. There is no other power that can pronounce the limit of its duration against the time expressed in it and its justification practicaly marks the doom of the judicial judgment on legislative action."

In the case of the Charles Wolff Packing Co. v. Court of Industrial Relations of the State of Kansas (262 U. S. 522), decided June 11, 1923, Mr. Chief Justice Taft, in rendering the decision, stated:

"It is very difficult under the cases to lay down a working rule by which readily to determine when a business has become 'clothed with a public interest.' All business is subject to some kind of public regulation; but when the public becomes so peculiarly dependent upon a particular business that one engaging therein subjects himself to a more intimate public regulation is only to be determined by the process of exclusion and inclusion and to a gradual establishment of a line of distinction.

"To say that a business is clothed with a public interest is not to determine what regulation may be permissible in view of the private rights of the owner. The extent to which an inn or a cab system may be regulated may differ widely from that allowable as to a railroad or other common carrier. It is not a matter of legislative discretion solely. It depends on the nature of the business, on the feature which touches the public, and on the abuses reasonably to be feared. To say that a business is clothed with a public interest is not to import that the public may take over its entire management and run it at the expense of the owner. The extent to which regulation may reasonably go varies with different kinds of business. The regulation of rates to avoid monopoly is one thing. The regulation of wages is another. A business may be of such character that only the first is permissible, while another may involve such a possible danger of monopoly on the one hand, and such disaster from stoppage on the other, that both come within the public concern and power of regulation.

"Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public is interested, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but so long as he maintains the use, he must submit to the control."

In the case of Children's Hospital v. Adkins, supra, Mr. Justice Van Orsdel, in speaking for the court, says:

"When Congress legislates for the District of Columbia, it may exercise the police power and all its plenitude. (Washington Terminal Co., r. District of Columbia, 36 App. D. C. 186, 191; District of Columbia v. Brooke, 214 U. S. 138.) Tbout this there is no dispute. Under that power it has the right to enact laws for the promotion of the health, safety, morals, and welfare of those subject to its jurisdiction.' (Chicago, Burlington & Quincy R. R. Co. v. McQuire, 219 U. S. 549, 568.)”

Certainly the foregoing language of the Supreme Court is too clear in its meaning to be open to a contrary interpretation from what its words clearly import. The letting of buildings for dwelling purposes may not have been clothed with a public interest 10 years ago to a sufficient degree to have warranted legislation directly affecting its control, and yet the said language of the Supreme Court is so positive that it can not be conceived how, if the Congress positively declares that at this time the housing condition is so serious that it affects not only the proper functioning of the Government, but also the public health and morals of the community, the Supreme Court or any other Federal court can well say that Congress with its exclusive control over the District can not lawfully regulate the subject matter of this bill.

In the case of Adkins v. Children's Hospital (261 U. S. 552), Mr. Chief Justice Taft, in his dissenting opinion, again makes this pertinent comment:

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"I regret much to differ from the court in this case but it is not the function of this court to hold congressional acts invalid simply because they are passed to carry out economic views which the court believes to be unwise or unsound."

In the case of the Pennsylvania Coal Co. v. Mahon (260 U. S. 393), Mr. Justice Holmes, in the course of the rendition of his opinion, says:

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The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking."

In the case of Levy Leasing Co. v. Siegel (257-259 U. S. 291), Mr. Justice Clark, delivering opinion, said:

"It is strenuously argued as it was in Block v. Hirsh (256 U. S. 135), and in the Marcus Brown case that the relation of landlord and tenant is a private one and is not so affected by a public interest as to render it subject to regulation by the exercise of the police power.

It is not necessary to discuss this contention at length, for so early as 1906, when the tenement house act of New York, enacted in 1901, was assailed as an unconstitutional interference with the right of property in land, this court, in a per curiam opinion, affirmed a decree of the Court of Appeals of New York (179 N. Y. 325), sustaining a regulation requiring large expenditures by force, as a valid exercise of the police power. Moeschen v. Tenement House Department (203 U. S. 583). To require uncompensated expenditures very certainly affects the right of property as definitely, and often as seriously, as regulation of the amount of rent that may be charged for it can do. Many decisions of this court were cited as sufficient to justify the summary disposition there made of the question, as one even then so settled by history as not to be open to discussion.

"In the opinion in Block v. Hirsh, supra, this court cites in support of this same conclusion under the circumstances there disclosed which are not to be distinguished from these present in this case, the later cases following: Strickley v. Highland Boy Gold Mining Co., (200 U. S. 527); Welsh v. Swasey, (214 U. S. 91); Plymouth Coal Co. v. Pennsylvania (232 U. S. 531); St. Louis Poster Advertising Co. v. St. Louis (249 U. S. 269); Perley v. North Carolina (249 U. S. 510). These authorities show that from time to time for a generation, as occasion arose, this court has held that there is no inherent difference in property in land over that in tangible and that in intangible personal property as exempts it from the operation of the police power in appropriate cases, and in both the Marcus Brown and Block cases, supra, it 46

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was held, in terms, that the existing circumstances clothed the letting of buildings for dwelling purposes with a public interest sufficient to justify restraining property rights in them to the extent provided for in the laws in those cases objected to. *" (P. 250.) "Again a constitutional substantive statute enacted to give effect to a constitutional purpose, the States have a wide discretion as to the remedies which may be deemed necessary to achieve such a result and it is very clear that discretion has not been exceeded in this instance by the State of New York."

The use of the phrase "property becomes clothed with a public interest " has been made in so many recent cases that it is practically impossible to read them, let alone set them forth in a short opinion. In the very recent case of the United States v. Chemical Foundation (294 Fed. Rep. 326), the court speaking through Mr. Justice Morris, said:

"Property becomes 'clothed with a public interest' when used in a manner to make it of public consequence and affecting the community at large. Munn v. Illinois, 94 U. S. 113)

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a use of property was declared to be public which, independent of the conditions existing in the State, might otherwise have been considered as private. This was reaffirmed in Bacon v. Walker (204 U. S. 311); Noble State Bank v. Haskell (219 U. S. 104), etc."

Third. In dealing with the third phase of the act which is subject to attack, namely, the alleged taking of property without due process of law and the impairment of contracts, it is deemed pertinent to remark that it will be found that there are possibly but a few leases in force to-day in the District of Columbia affecting the rental of properties for dwelling purposes which have not been entered into through some coercion or under a threat of eviction or such like. In other words, the conditions surrounding rental properties have become such that the right to freely barter has been practically eliminated. It will undoubtedly be true, however, that in all cases where the landlord and tenant have freely and voluntarily entered into any such leases that they will not be brought before the commission and subjected to any correction by the commission prior to their expiration. However, this phase of the matter has been entirely eliminated by the Supreme Court of the United States in the case of Block v. Hirsh (256 U. S. 135), wherein the court says:

"The statute is objected to on the further ground that landlords and tenants are deprived by it of a trial by jury on the right to possession of the land. If the power of the commission established by the statute to regulate the relation is established, as we think it is, by what we have said, this objection amounts to little. To regulate the relation and to decide the facts affecting it are hardly separable. While the act is in force there is little to decide, except whether the rent allowed is reasonable, and upon that question the courts are given the last word."

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The Court of Appeals of the District of Columbia in the case of Tebbs v. Union Realty Corporation (286 Fed. Rep. 1015), decided February 28, 1923, says: "The Supreme Court in Block v. Hirsh (256 U. S. 135) has sustained the constitutionality of the statute and declared that it embodied a scheme or code for enforcing its provisions. The court pointed out that the act was a design to secure a speedy and summary administration of its provisions. held that it was within the power of Congress to suspend the ordinary remedies usually existing in such cases even to the extent of depriving parties, both landlord and tenant, of a trial by jury on the right to possession of the property involved, and that while the act was in force there was little to decide except whether or not the rent allowed was reasonable. In view of this interpretation of the act, we think it must be held that the judgment of the rent commission was, so far as the defendant in error is concerned, valid."

The Supreme Court of the United States in the case of the Marcus Brown Holding Co. v. Feldman Co. (256 U. S. 170), says:

"The chief objections to these acts have been dealt with in Block v. Hirsh. In the present case more emphasis is laid on the impairment of the obligation of the contract of the lessees to surrender possession and of the new lease which was to have gone into effect upon October 1 last year. But contracts are made subject to this exercise of the power of the State when otherwise justified, as we have held this to be. (Mamigalt v. Springs, 199 U. S. 473, 480; Louisville & Nashville R. R. v. Mottley, 219 U. S. 467, 482; Chicago & Alton R. R. Co. v. Tranbarger, 238 U. S. 67, 76, 77; Union Trading Goods Co, v.