Georgia Public Service Corporation, 248 U. S. 372, 375; Producers Transportation Co. v. Railroad Commission, of California, 251 U. S. 228, 231.)"

In the case of the Levy Leasing Co. v. Seigel (258 U. S. 242), heretofore set forth at greater length, the court says, covering this phase of the act:

"It is not necessary to discuss this contention at length, for so early as 1906, 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 (175 N. Y. 325), sustaining regulations 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 in land 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."

The placing by a landlord of his property on the market for letting purposes to the public is not in my opinion--when located in large city areas, and especially in a governmental city, wherein the necessity of housing thousands of Government employees exists-taking of private property without compensation when there is a commission authorized by law to fix and determine a resonable rent or income therefor.

The right of Congress to legislate fully and completely on questions of this character is not only fixed by the Constitution, but is affirmatively permitted by certain of the decisions heretofore referred to.

The constitutionality of this character of legislation has been affirmed by the Supreme Court of the United States, and even as late as the case of the Chastleton Corporation v. Sinclair et al., the court does not even challenge the constitutionality, but only to its dictum attempts to fix the cessation of the emergency alleged in the act then under consideration.

Mr. William D. Guthrie states in the brief filed by him for the attorney general for the State of New York, by special leave of the court, in the Marcus Brown Co. case, the following:

"One of the inherent and fundamental purposes of all civilized government is to prevent extortion and oppression and to safeguard the public; and in the light of that principle all constitutions must, of course, be read. It was early realized that there were many callings and businesses to which the public necessarily had to resort and in which, therefore, they had an interest. If these were to be left undisturbed by the law, it was patent that they would in numerous instances have practically unlimited power to oppress the public. Accordingly, government was called upon to protect the public from extortion, and both then and now callings and property charged with a public interest have been regulated by the State. What shall be so regulated depends entirely upon the peculiar economic and social conditions of the times. See Ch. 1, Wyman's 'Public Service Corporations.'

"It was not necessary that persons thus subjected to regulation should have a monopoly-though that element, if it existed, served to emphasize their capacity to do public harm at will; or that they should enjoy a special privilege or franchise-though that might serve to make clearer their duty to the public. (Munn v. Illinois, 94 U. S. 113; Budd v. New York, 143 U. S. 517; Brass v. Stoeser, 153 U. S. 391; German Alliance Insurance Co. v. Lewis, 233 U. S. 389, 411.)

"The public interest, which warrants the regulation of such ordinary, private, competitive, and unfranchised businesses as grain elevating (Munn v. Illinois and Budd v. New York, supra), fire insurance (German Alliance Ins. Co. v. Lewis, supra), laundrying (Oklahoma Operating Co. v. Love, 252 U. S. 331, 337-338) bread baking (Mobile v. Yuille, 3 Ala. N. S. 140; Louisiana Bread Case, 12 La. Ann, 432), etc., is incomparably smaller than that which underlies the exertion of the legislative power over the business of renting apartments and houses for dwelling purposes in densely populated cities like New York. The vital principles of government, it is submitted, have not become static or fallen into decadence, but, on the contrary, are still progressive and competent to deal practically with extortion, oppression, and emergency wherever and whenever they appear."

27363-25PT 14

In the Court of Appeals, District of Columbia. October term, 1924. No. 4189. Frances F. Peck, plaintiff in error, v. Jacob H. Fink, defendant in error. Brief amicus curiæ, by leave first had and obtained, in behalf of the Rent Commission of the District of Columbia.

STATEMENT OF CASE

This cause comes to this court upon practically a single assignment of error. as will appear by reference to, and as is literally stated in, the brief of the plaintiff in error filed herein, on pages three and four, reading as follows:

"The sole and single question presented by the record is whether the emergency mentioned in the so-called Ball law or rents act had ceased to exist on April 21, 1924, so as to render null and void the determination of the Rent Commission filed on May 2 thereafter; in other words, was the plaintiff in error entitled to recover possession of her property under the provisions of the Code of Law for the District of Columbia (sec. 20), notwithstanding the so-called Ball Rents Act, and notwithstanding the determination of the Rent Commission filed subsequent to the decision of the Supreme Court of the United States in the case of the Chastleton Corporation et al. v. Sinclair et al."

The agreed statement of facts, as set forth in the record (p. 5), while patently failing to disclose what evidence was submitted and upon what theory of the case the municipal court decided in favor of the defendant in error, will not be discussed herein.

QUESTION IN ISSUE

The big, real question attempted to be raised by the record is a single, clearcut, well-defined one of law.

That question of law is involved in and revolves around an expression contained in the opinion of the Supreme Court of the United States in the Chastleton case (Chastleton Corporation et al. v. Sinclair et al., advance opinion No. 14, p. 477), handed down on April 21, 1924.

In order to get a clear conception of what the real question at issue is and to gather the true meaning of the court in the opinion rendered in the aboveentitled case, it is necessary to determine the nature, quality, and effect of that expression, and to ascertain what has been the policy or rule of practice of the Supreme Court of the United States in passing on the constitutionality of acts of Congress and the acts of the legislatures of the several States.

The court in deciding the Chastleton case refused to pass on the question of fact of whether or not the emergency existed on the 25th day of August, 1922. The court sent the Chastleton case back to the Supreme Court of the District of Columbia to ascertain whether or not the emergency existed on that day.

In rendering the opinion of the court Mr. Justice Holmes used this expression:

"These cases show that the court may ascertain, as it sees fit, any fact that is merely a ground for laying down a rule of law, and if the question were only whether the statute is in force to-day, upon the facts that we judicially know we should be compelled to say that the law has ceased to operate."

This part of the decision has given rise to a doubt as to whether or not the emergency existed on April 21, 1924, and that the act of Congress creating the Rent Commission to meet the emergency in rental conditions in the District of Columbia had ceased to operate and was unconstitutional, or was this simply obiter dictum and outside the issue in that case-injected into it solely as a matter of argument and supporting the conclusion arrived at in the Chastleton case itself.

The sole question involved in this appeal is whether this is a decision by the Supreme Court declaring the act of Congress of May 22, 1922, unconstitutional, then the plaintiff in error is entitled to have the case reversed. If it is and solely obiter dictum. If it is a decision declaring the act unconstitutional, then the plaintiff in error is enttled to have the case reversed. If it is an obiter dictum, then the decision by the Hon. Robert E. Mattingly should be affirmed.

THE EXPRESSION USED BY MR. JUSTICE HOLMES WAS OBITER DICTUM

While the expression by Mr. Justice Holmes in the Chastleton case is entitled to the greatest respect, it was not necessary to the determination of any of the issues in the case and is, therefore, not a decision within the rule of stare decisis. This fact is pointed out by Mr. Justice Brandeis in his opinion in the Chastleton casse, in which he concurred in part with Mr. Justice Holmes, when he says:

"If protection of the rights of the Chastleton Corporation and Hahn required us to pass upon the constitutionality of the rents act, I should agree, also, to the procedure directing the lower court to ascertain the facts. But, in my opinion, it does not.

"To express an opinion on the constitutionality of the acts, or to sanction the inquiry directed, would, therefore, be contrary to a long-prevailing practice of the court.

"The term 'dictum' is generally used as an abbreviation of 'obiter dictum,' which means 'by the way.' Such an expression, while entitled to respectful consideration as expressing the view of the judge by whom it was uttered, is not binding as authority within the stare decisis rule, even on courts inferior to the courts from which such expression emanated, no matter how often it may be repeated." (Corpus Juris (Courts), vol. 15, p. 950, sec. 344.)

Mr. Justice Holmes said in Barnes v. Alexander (232.U. S. 117, p. 120): "The remarks in Trist v. Child (21 Wall. 441) were not necessary to the decision, which was placed mainly on other grounds, so that at least we are warranted in treating the question as at large."

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Mr. Justice Holmes said in Grigsby v. Russell (222 U. S. 149, p. 156, 157): "Coming to the authorities in this court, it is true that there are intimations in favor of the result come to by the circuit court of appeals. It is enough to say that while the court below might hesitate to decide against the language of Warnock v. Davis (140 U. S. 775), there has been no decision that precludes us from exercising our own judgment upon this much debated point."

Mr. Justice Gray, in U. S. v. Wong Kim, Ark. (169 U. S. 649, p. 678), said, referring to the decision in the slaughter-house cases:

"Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the fourteenth amendment made this remark: 'The phrase "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the States States.' (16 Wall. 73.) This was wholly aside from the question in judgment and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities

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"In weighing a remark uttered under such circumstances, it is well to bear in mind the often quoted words of Chief Justice Marshall: 'It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision." (Italics ours.) The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its fullest extent." Cohen v. Virginia (1821), 6 Wheat. 264, 399.

In Pollock v. Farmers Loan & Trust Co. (157 U. S. 429, 575), Chief Justice Fuller, after quoting (p. 574) the language of Chief Justice Marshall in Cohen v. Virginia (supra), quoted Mr. Justice Curtis in Carroll v. Lessee of Carroll (16 How. 275, 286), as follows:

"If the construction put by the court of a State upon one of its statutes was not a matter in judgment, if it might have been decided either way without affecting any right brought into question, then, according to the principles of the common law, an opinion on such a question is not a decision, To make it so there must have been an application of the judicial mind to the precise question necessary to be determined to fix the rights of the parties and decide to whom the property in contestation belongs. And therefore this court, and other courts organized under the common law, has never held itself bound by any part of an opinion, in any case, which was not needful to the ascertainment of the right or title in question between the parties." ours.)

Chief Justice Fuller also said (at p. 574) :

(Italics

"Doubtless the doctrine of stare decisis is a salutary one, and ought to be adhered to on all proper occasions, but it only arises in respect of decisions directly upon the points in issue." (Italics ours.)

IS IT WITHIN STARE DECISIS RULE?

In order to arrive at what the court meant, it is necessary to see what has been the general policy and practice of the Supreme Court of the United States in dealing with legislation by the States or by the National Government so far as its constitutionality is concerned.

THE SUPREME COURT HAS ESTABLISHED A RULE NEVER TO ANTICIPATE A QUESTION OF CONSTITUTIONAL LAW IN ADVANCE OF THE NECESSITY OF DECIDING IT

To this rule it has rigidly adhered since its inception. Steamship Company v. Emigration Commissioners, 113 U. S. 33, at p. 39: "It has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully."

FROM ITS EARLIEST HISTORY THE SUPREME COURT HAS HELD THAT THE EXERCISE OF ITS POWER TO DECLARE AN ACT UNCONSTITUTIONAL IS ITS ULTIMATE AND SUPREME FUNCTION AND IS LEGITIMATE ONLY AS A LAST RESORT AND NECESSITY

Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339,345.

We find that from the earliest history of the court it has voluntarily limited the exercise of its own power in the declaration of the unconstitutionality of any act of Congress and of a State, so that it may be now considered a rule of practice of the court. This limitation, which, as a judge has recently said, "is more than a canon of interpretation-it is a rule of conduct resting upon considerations of public policy." was first set forth by Judge Iredell in 1798, when he stated that as the authority to declare a statue void "is of a delicate and awful nature, the court will never resort to that authority but in a clear and urgent case." Even before he became a judge, as early as August, 1787, Judge Iredell stated:

"In all doubtful cases to be sure, the act ought to be supported. It should

be unconstitutional beyond dispute before it is pronounced such." Employers' Liability cases, 207 U. S. 463, 509.

Calder v. Telfair, 4 Dallas, 14, 19.

Interstate Commerce v. Brinson, 154 U. S. 447.

Fairbanks v. U. S. 181 U. S. 283.

In 1827, Judge Washington said:

"It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond all reasonable doubt." (Ogden v. Saunders, 12 Wheaton, 213, 270.)

Judge Woodbury said in 1848:

"It is to be recollected that our legislatures stand in a position demanding often the most favorable construction for their motives in passing laws, and they require a fair rather than hypercritical view of well-intended provisions in them. Those public bodies must be presumed to act from public considerations, being in a high public trust; and when their measures relate to matters of general interest, and can be vindicated under express or justly implied powers, and more especially when they appear intended for improvements, made in the true spirit of the age, or for salutary reforms in abuses, the disposition in the judiciary should be strong to uphold them."

Planters Bank v. Sharp, 6 How. 301.

Doe v. Eslava, 9 How. 421.

In 1871 this rule was first applied to an act of Congress when, in the Legal Tender cases, Judge Strong stated that

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"A decent respect for a coordinate branch of the Government demands that the judiciary should presume until the contrary is clearly shown, that there has been no transgression of power by Congress all the members of which act under the obligation of an oath of fidelity to the Constitution. Such has always been the rule." (12 Wall. 457, 521.)

In 1878 Chief Justice Waite stated that "the safety of our institutions depends in no small degree on a strict observance of this salutary rule."

Sinking Fund cases, 99 U. S. 700.

See also Nicol v. Ames, 173 U. S. 509; El Paso Ry. v. Gutierez, 215 U. S. 87, 96. The court has always scrupulously refrained from assuming any authority to decide the policy or impolicy of legislation. Jude White, in 1904, said, in McCray v. U. S. (195 U. S., 27, 54):

"No instance is afforded from the foundation of the Government where an act which was within a power conferred was declared to be repugnant to the Constitution because it appeared to the judicial mind that the particular exertion of constitutional power was either unwise or unjust. To announce such a principle would amount to declaring that, in our constitutional system, the judiciary was not only charged with the duty of upholding the Constitution but also with the responsibility of correcting every possible abuse arising from the exercise of their conceded authority. So to hold would be to overthrow the entire distinction between the legislative, judicial, and executive departments of the Government, upon which our system is founded, and would be a mere act of judicial usurpation. The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted.

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"If it be said that a statute like the one before us is mischievous in its tendencies, the answer is that the responsibility therefor rests upon legislators, not upon the courts."

In Atkins v. Kansas (191 U. S. 207, 223) Judge Harlan says: "No evils arising from such legislation could be more far-reaching than those that might come to our system of government, if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and, upon grounds merely of justice or reason or wisdom, annul statutes that had received the sanction of the people's representatives.

It is affirmatively shown by the line of decisions above quoted that for the last 136 years the policy and practice of the court has been never to declare an act of Congress unconstitutional unless it is so clearly, definitely, and unmistakably in violation of the Constitution that all reasonable doubt is removed and all rational conclusions taken away; that it will not enter into the field of "policy or impolicy" of the legislation, or whether it be good or bad; that it will not inquire into whether it is "unwise or unjust"; that it