The Act of October 22, 1919, c. 80, Title II, 41 Stat. 297,
created a commission with power, upon notice and hearing, to
determine whether the rent, service and other terms and conditions
of the use and occupancy of apartments, hotels and other rental
property in the District of Columbia, were fair and reasonable and,
if found otherwise, to fix fair and reasonable rents, etc., in
lieu; it provided that a tenant's right of occupancy should, at his
option, continue, notwithstanding the expiration of his term,
subject to regulation by the commission, so long as he paid the
rent and performed the conditions fixed by his lease or as modified
by the commission; reserved, however, to the owner his right to
possession for actual
bona fide occupancy by himself, his
wife, children or dependents, upon giving
Page 256 U. S. 136
a 30 days' notice to quit; made the commission's findings
conclusive on matters of fact, but reviewable by the Court of
Appeals of the District on matters of law; limited the regulation
thus established to a period of two years, and declared that its
provisions were made necessary by emergencies growing out of the
War, resulting in rental conditions dangerous to the public health
and burdensome to public officers, employees and accessories, and
thereby embarrassing the Federal Government in the transaction of
the public business. In an action in which an owner, ignoring this
legislation, and without serving the required notice, sought to
oust a tenant, holding over in violation of a lease made before the
act was passed, and in which the act was relied on by the tenant,
particularly its requirement of notice, but was declared
unconstitutional by the court below --
Held: (1) That the legislative declaration of facts
affording the ground for the regulation was entitled to great
respect, and was confirmed by common knowledge. P.
256 U. S.
154.
(2) That the exigency existing in the District clothed the
letting of buildings there with a public interest so great as to
justify regulation by law,
i.e., by the police power of
Congress -- while such exigency lasts. P.
256 U. S.
155.
(3) That, assuming the owner in this case did not desire the
premises for his own use (as it might have turned out if the entire
law had not been declared void) and treating the property as held
for rent, the effect of the act, in allowing the tenant to retain
possession at the rent stipulated in the expired lease or as it
might be modified by the commission, was not, under the
circumstances, an unconstitutional restriction of the owner's
dominion and right of contract or a taking of his property for a
use not public. P.
256 U.S.
156.
(4) That such regulation was justified as a temporary measure,
even though it might not be as a permanent change. P.
256 U. S.
157.
(5) That it did not become otherwise if the "reasonable rent" it
secured meant depriving the owner, in part at least, of the power
of profiting by the sudden influx of people to Washington, caused
by the needs of the Government and the War. P.
256 U. S.
157.
(6) That the preference given to the tenant in possession was
justified as an incident of the policy of the legislation. P.
256 U. S.
157.
(7) That, the end being legitimate and the means reasonably
related to it, the wisdom of the means was not for the courts to
pass upon. P.
256 U. S.
158.
(8) That the court was not prepared to say in this case that the
law, being valid in its principal aspects, was invalid insofar as
it might operate to deprive landlords and tenants of trial by jury
on the right to possession. P.
256 U. S.
158.
50 App.D.C. 56, 73; 267 Fed. Rep. 614, 631, reversed.
Page 256 U. S. 137
ERROR to review a judgment of the court below holding
unconstitutional the act regulating rents, etc., in the District of
Columbia, in proceedings by a landlord to oust a tenant holding
over. The facts are stated in the opinion.
Page 256 U. S. 153
MR. JUSTICE HOLMES delivered the opinion of the court.
This is a proceeding brought by the defendant in error, Hirsh,
to recover possession of the cellar and first floor of a building
on F Street in Washington which the plaintiff in error, Block,
holds over after the expiration of a lease to him. Hirsh bought the
building while the lease was running, and on December 15, 1919,
notified Block that he should require possession on December 31,
when the lease expired. Block declined to surrender the premises,
relying upon the Act of October 22, 1919, c. 80, Title II --
"District of Columbia Rents"; especially § 109, 41 Stat. 297, 298,
301. That is also the ground of his defence in this Court, and the
question is whether the statute is constitutional, or, as held by
the Court of Appeals, an attempt to authorize the taking of
property not for public use and without due process of law, and for
this and other reasons void.
By § 109 of the act, the right of a tenant to occupy any hotel,
apartment, or "rental property,"
i.e., any building
Page 256 U. S. 154
or part thereof, other than hotel or apartment (§ 101), is to
continue notwithstanding the expiration of his term, at the option
of the tenant, subject to regulation by the Commission appointed by
the act, so long as he pays the rent and performs the conditions as
fixed by the lease or as modified by the Commission. It is provided
in the same section that the owner shall have the right to
possession "for actual and
bona fide occupancy by himself,
or his wife, children, or dependents . . . upon giving thirty days'
notice in writing." According to his affidavit, Hirsh wanted the
premises for his own use, but he did not see fit to give the thirty
days' notice because he denied the validity of the act. The statute
embodies a scheme or code which it is needless to set forth, but it
should be stated that it ends with the declaration in § 122 that
the provisions of Title II are made necessary by emergencies
growing out of the war, resulting in rental conditions in the
District dangerous to the public health and burdensome to public
officers, employees and accessories, and thereby embarrassing the
Federal Government in the transaction of the public business. As
emergency legislation, the Title is to end in two years unless
sooner repealed.
No doubt it is true that a legislative declaration of facts that
are material only as the ground for enacting a rule of law, for
instance, that a certain use is a public one, may not be held
conclusive by the Courts.
Shoemaker v. United States,
147 U. S. 282,
147 U. S. 298.
Hairston v. Danville & Western Ry. Co., 208 U.
S. 598,
208 U. S. 606.
Prentis v. Atlantic Coast Line Co., 211 U.
S. 210,
211 U. S. 227.
Producers Transportation Co. v. Railroad Commission,
251 U. S. 228,
251 U. S. 230.
But a declaration by a legislature concerning public conditions
that, by necessity and duty, it must know, is entitled at least to
great respect. In this instance, Congress stated a publicly,
notorious and almost worldwide fact. That the emergency declared by
the statute did exist
Page 256 U. S. 155
must be assumed, and the question is whether Congress was
incompetent to meet it in the way in which it has been met by most
of the civilized countries of the world.
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 cannot be made the test of public interest,
Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate
Power Co., 240 U. S. 30,
240 U. S. 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,
219 U. S. 110,
219 U. S.
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 eighty to one
hundred feet.
Welch v.
Page 256 U. S. 156
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. 510. 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 necessarily 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,
205 U. S. 139.
Perhaps it would be too strict to deal with this case as concerning
only the requirement of thirty days' notice. For although the
plaintiff alleged that he wanted the premises for his own use, the
defendant denied it, and might have prevailed upon that issue under
the act. The general question to which we have adverted must be
decided, if not in this, then in the next, case, and it should
Page 256 U. S. 157
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. It is said that a grain elevator may go out of
business, whereas here the use is fastened upon the land. The power
to go out of business, when it exists, is an illusory answer to gas
companies and waterworks, but we need not stop at that. The
regulation is put and justified only as a temporary measure.
See Wilson v. New, 243 U. S. 332,
243 U. S. 345,
243 U. S. 346.
Fort Smith & Western R.R. Co. v. Mills, 253 U.
S. 206. A limit in time, to tide over a passing trouble,
well may justify a law that could not be upheld as a permanent
change.
Machinery is provided to secure to the landlord a reasonable
rent. § 106. It may be assumed that the interpretation of
"reasonable" will deprive him in part at least of the power of
profiting by the sudden influx of people to Washington caused by
the needs of Government and the war, and, thus, of a right usually
incident to fortunately situated property -- of a part of the value
of his property as defined in
International Harvester Co. v.
Kentucky, 234 U. S. 222.
Southern Ry. Co. v. Greene, 216 U.
S. 400,
216 U. S. 414.
But while it is unjust to pursue such profits from a national
misfortune with sweeping denunciations, the policy of restricting
them has been embodied in taxation, and is accepted. It goes little
if at all farther than the restriction put upon the rights of the
owner of money by the more debatable usury laws. The preference
given to the tenant in possession is an almost necessary incident
of the policy, and is traditional in English law. If the tenant
Page 256 U. S. 158
remained subject to the landlord's power to evict, the attempt
to limit the landlord's demands would fail.
Assuming that the end in view otherwise justified the means
adopted by Congress, we have no concern, of course, with the
question whether those means were the wisest, whether they may not
cost more than they come to, or will effect the result desired. It
is enough that we are not warranted in saying that legislation that
has been resorted to for the same purpose all over the world is
futile or has no reasonable relation to the relief sought.
Chicago, Burlington & Quincy R.R. Co. v. McGuire,
219 U. S. 549,
219 U. S.
569.
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. A part of the exigency
is to secure a speedy and summary administration of the law, and we
are not prepared to say that the suspension of ordinary remedies
was not a reasonable provision of a statute reasonable in its aim
and intent. The plaintiff obtained a judgment on the ground that
the statute was void, root and branch. That judgment must be
reversed.
Judgment reversed.
MR. JUSTICE McKENNA, with whom concurred THE CHIEF JUSTICE, MR.
JUSTICE VAN DEVANTER and MR. JUSTICE McREYNOLDS, dissenting:
THE CHIEF JUSTICE MR. JUSTICE VAN DEVANTER, MR. JUSTICE
McREYNOLDS and I dissent from the opinion
Page 256 U. S. 159
and judgment of the court. The grounds of dissent are the
explicit provisions of the Constitution of the United States; the
specifications of the grounds are the irresistible deductions from
those provisions and, we think, would require no expression but for
the opposition of those whose judgments challenge attention.
The National Government by the Fifth Amendment to the
Constitution, and the States by the Fourteenth Amendment, are
forbidden to deprive any person of "life, liberty, or property,
without due process of law." A further provision of the Fifth
Amendment is that private property cannot be taken for public use,
without just compensation. And there is a special security to
contracts in § 10 of Article I in the provision that "No State
shall . . . pass any . . . law impairing the obligation of
contracts. . . ." These provisions are limitations upon the
national legislation, with which this case is concerned, and
limitations upon state legislation, with which
Marcus Brown
Holding Co. v. Feldman, post 256 U. S. 170, is
concerned. We shall more or less consider the cases together, as
they were argued and submitted on the same day and practically
depend upon the same principles, and what we say about one applies
to the other.
The statute in the present case is denominated "The Rent Law,"
and its purpose is to permit a lessee to continue in possession of
leased premises after the expiration of his term, against the
demand of his landlord and in direct opposition to the covenants of
the lease, so long as he pays the rent and performs the conditions
as fixed by the lease or as modified by a commission created by the
statute. This is contrary to every conception of leases that the
world has ever entertained, and of the reciprocal rights and
obligations of lessor and lessee.
As already declared, the provisions of the Constitution seem so
direct and definite as to need no reinforcing words and to leave no
other inquiry than does the statute under
Page 256 U. S. 160
review come within their prohibition? It is asserted, that the
statute has been made necessary by the conditions resulting from
the "Imperial German war." The thought instantly comes that the
country has had other wars with resulting embarrassments, yet they
did not induce the relaxation of constitutional requirements nor
the exercise of arbitrary power. Constitutional restraints were
increased, not diminished. However, it may be admitted that the
conditions presented a problem and induced an appeal for government
remedy. But we must bear in mind that the Constitution is, as we
have shown, a restraint upon government, purposely provided and
declared upon consideration of all the consequences of what it
prohibits and permits, making the restraints upon government the
rights of the governed. And this careful adjustment of power and
rights makes the Constitution what it was intended to be and is, a
real charter of liberty, receiving and deserving the praise that
has been given it as "the most wonderful work ever struck off at
any given time by the brain and purpose of man." And we add that
more than a century of trial "has certainly proven the sagacity of
the constructors, and the stubborn strength of the fabric."
The "strength of the fabric" cannot be assigned to anyone
provision; it is the contribution of all, and therefore it is not
the expression of too much anxiety to declare that a violation of
any of its prohibitions is an evil -- an evil in the circumstance
of violation, of greater evil because of its example and malign
instruction. And against the first step to it this court has
warned, expressing a maxim of experience -- "
Withstand
beginnings."
Boyd v. United States, 116 U.
S. 616,
116 U. S. 635.
Who can know to what end they will conduct?
The facts of this litigation point the warning. Recurring to
them, we may ask, of what concern is it to the public health or the
operations of the Federal Government who
Page 256 U. S. 161
shall occupy a cellar, and a room above it, for business
purposes in the City of Washington? -- (the question in this case);
and why is it the solicitude of the police power of the State of
New York to keep from competition an apartment in the City of New
York? -- (the question in the other case). The answer is to supply
homes to the homeless. It does not satisfy. If the statute keeps a
tenant in, it keeps a tenant out; indeed, this is its assumption.
Its only basis is, that tenants are more numerous than landlords,
and that, in some way, this disproportion, it is assumed, makes a
tyranny in the landlord, and an oppression to the tenant,
notwithstanding the tenant is only required to perform a contract
entered into not under the statute, but before the statute, and
that the condition is remedied by rent fixing -- value adjustment
-- by the power of the Government. And this, it is the view of the
opinion, has justification because "space in Washington is
limited," and "housing is a necessary of life." A causative and
remedial relation in the circumstances we are unable to see. We do
see that the effect and evil of the statute is that it withdraws
the dominion of property from its owner, superseding the contracts
that he confidently made under the law then existing and subjecting
them to the fiat of a subsequent law.
If such exercise of government be legal, what exercise of
government is illegal? Houses are a necessary of life, but other
things are as necessary. May they too be taken from the direction
of their owners and disposed of by the Government? Who supplies
them, and upon what inducement? And, when supplied, may those who
get them under promise of return, and who had no hand or expense in
their supply, dictate the terms of retention or use, and be bound
by no agreement concerning them?
An affirmative answer seems to be the requirement of the
decision. If the public interest may be concerned, as in the
statute under review, with the control of any form
Page 256 U. S. 162
of property, it can be concerned with the control of all forms
of property. And certainly, in the first instance, the necessity or
expediency of control must be a matter of legislative judgment.
But, however, not to go beyond the case -- if the public interest
can extend a lease, it can compel a lease; the difference is only
in degree and boldness. In one as much as in the other, there is a
violation of the positive and absolute right of the owner of the
property. And it would seem, necessarily, if either can be done,
unoccupied houses or unoccupied space in occupied houses can be
appropriated. The efficacy of either to afford homes for the
homeless cannot be disputed. In response to an inquiry from the
bench, counsel replied that the experiment had been tried or was
being tried in a European country. It is to be remembered that the
legality of power must be estimated not by what it will do, but by
what it can do.
The prospect expands and dismays when we pass outside of
considerations applicable to the local and narrow conditions in the
District of Columbia. It is the assertion of the statute that the
Federal Government is embarrassed in the transaction of its
business, but, as we have said, a New York statute is submitted to
us, and counsel have referred to the legislation of six other
States. And there is intimation in the opinion that Congress, in
its enactment, has imitated the laws of other countries. The facts
are significant, and suggest the inquiry, have conditions come, not
only to the District of Columbia, embarrassing the Federal
Government, but to the world as well, that are not amenable to
passing palliatives, so that socialism, or some form of socialism,
is the only permanent corrective or accommodation? It is indeed
strange that this court, in effect, is called upon to make way for
it and, through the instrument of a constitution based on personal
rights and the purposeful encouragement of individual incentive and
energy, to declare legal a power exerted for their destruction.
Page 256 U. S. 163
The inquiry occurs, have we come to the realization of the
observation that "War, unless it be fought for liberty, is the most
deadly enemy of liberty?"
But, passing that and returning to the Constitution, it will be
observed, as we have said, that its words are a restraint upon
power, intended as such in deliberate persuasion of its wisdom as
against unrestrained freedom.
And it is significant that it is not restraint upon a "Governing
One," but restraint upon the people themselves, and in the
persuasion, to use the words of one of the supporters of the
Constitution, that "the natural order of things is for liberty to
yield, and for government to gain ground." Sinister interests, its
conception is, may move government to exercise; one class may
become dominant over another; and, against the tyranny and
injustice that will result, the framers of the Constitution
believed precautions were as necessary as against any other abuse
of power. And so careful is it of liberty that it protects in many
provisions the individual against the magistrate.
Has it suddenly become weak -- become not a restraint upon evil
government, but an impediment to good government? Has it become an
anachronism, and is it to become "an archeological relic," no
longer to be an efficient factor in affairs, but something only to
engage and entertain the studies of antiquarians? Is not this to be
dreaded -- indeed, will it not be the inevitable consequence of the
decision just rendered? Let us see what it justifies, and upon what
principle. But first and preliminary to that inquiry are the
provisions it strikes down. We have given them, but we repeat them.
By § 10 of Article I, it is provided, "No State shall . . . pass
any . . . law impairing the obligation of contracts, . . ." By the
Fifth Amendment, no person can be deprived of property without due
process of law. The prohibitions need no strengthening comment.
They are as absolute as axioms. A contract existing, its obligation
is impregnable.
Page 256 U. S. 164
The elements that make a contract or its obligation we need not
consider. The present case is concerned with a lease, and that a
lease is a contract we do not pause to demonstrate either to
lawyers or to laymen, nor that the rights of the lessor are the
obligations of the lessee, and, of course, the rights of the lessee
are the obligations of the lessor -- the mutuality constituting the
consideration of the contract -- the inducement to it and its
value, no less to the lessee than to the lessor.
What were the rights and obligations in the present case, and
what was the right of Hirsh to control his property? Hirsh is the
purchaser of a lot in the City of Washington; Block is the lessee
of the lot, and he agreed that, at the end of his tenancy, he would
surrender the premises, and this and "each and every one of the
covenants, conditions and agreements," he promised "to keep and
perform." Hirsh at the end of the term demanded possession. It was
refused, and against this suit to recover possession there was
pleaded the statute. The defense prevailed in the trial court; the
statute was declared unconstitutional in the Court of Appeals. It
is sustained by the decision just announced.
It is manifest, therefore, that, by the statute, the Government
interposes with its power to annul the covenants of a contract
between two of its citizens and to transfer the uses of the
property of one and vest them in the other. The interposition of a
commission is but a detail in the power exerted -- not extenuating
it in any legal sense -- indeed, intensifies its illegality, takes
away the right to a jury trial from any dispute of fact.
If such power exist, what is its limit and what its
consequences? And by consequences we do not mean who shall have a
cellar in the City of Washington or who shall have an apartment in
a million-dollar apartment house in the City of New York, but the
broader consequences of unrestrained power and its exertion against
property, having
Page 256 U. S. 165
example in the present case, and likely to be applied in other
cases. This is of grave concern. The security of property, next to
personal security against the exertions of government, is of the
essence of liberty. They are joined in protection, as we have
shown, and both the National Government (Fifth Amendment) and the
States (Fourteenth Amendment) are forbidden to deprive any person
"of life, liberty, or property, without due process of law," and
the emphasis of the Fifth Amendment is that private property cannot
be "taken for public use, without just compensation." And, in
recognition of the purpose to protect property and the rights of
its owner from governmental aggression, the Third Amendment
provides,
"No soldier shall, in time of peace be quartered in any house,
without the consent of the owner, nor in time of war, but in a
manner to be prescribed by law."
There can be no conception of property aside from its control
and use, and upon its use depends its value.
Branson v.
Bush, 251 U. S. 182,
251 U. S. 187.
Protection to it has been regarded as a vital principle of
republican institutions. It is next in degree to the protection of
personal liberty and freedom from undue interference or
molestation.
Chicago, Burlington & Quincy R.R. Co. v.
Chicago, 166 U. S. 226. Our
social system rests largely upon its sanctity, "and that State or
community which seeks to invade it will soon discover the error in
the disaster which follows."
Knoxville v. Knoxville Water
Co., 212 U. S. 1,
212 U. S. 18.
There is not a contention made in this case that this court has
not pronounced untenable. An emergency is asserted as a
justification of the statute and the impairment of the contract of
the lease. A like contention was rejected in
Ex parte
Milligan, 4 Wall. 2. It was there declared (page
71 U. S. 120)
"that the principles of constitutional liberty would be in peril
unless established by irrepealable law." And it was said that
"the Constitution of the United States is a law for rulers and
people, equally in war
Page 256 U. S. 166
and in peace, and covers with the shield of its protection all
classes of men, at all times, and under all circumstances. No
doctrine involving more pernicious consequences was ever invented
by the wit of man than that any of its provisions can be suspended
during any of the great exigencies of government."
But what is the power that is put in opposition to the
Constitution and supersedes its prohibitions? It is not clear from
the opinion what it is. The opinion gives to the police power a
certain force, but its range is not defined. Circumstances, it is
said, "have clothed the letting of buildings in the District of
Columbia with a public interest so great as to justify regulation
by law," though at other times and places such letting may be only
of private concern, and the deduction is justified, it is said by
analogy to the business of insurance, the business of irrigation,
and the business of mining.
German Alliance Insurance Co. v.
Lewis, 233 U. S. 389;
Clark v. Nash, 198 U. S. 361;
Strickley v. Highland Boy Gold Mining Co., 200 U.
S. 527. It is difficult to handle the cases or the
assertion of what they decide. An opposing denial only is
available.
To us, the difference is palpable between life insurance and the
regulation of its rates by the State and the exemption of a lessee
from the covenants of his lease with the approval of the State, in
defiance of the rights of the lessor. And as palpably different is
the use of water for mining or irrigation or manufacturing, and
eminent domain exercised for the procurement of its means with the
requirement of compensation, and as palpably different is eminent
domain, with attendant compensation, exercised for railways and
other means for the working of mines.
And there is less analogy in laws regulating the height of
buildings in business sections of a city; or the requirement of
boundary pillars in coal mines to safeguard the employees of one in
case the other should be abandoned and allowed to fill with water;
or the regulation of bill-boards
Page 256 U. S. 167
in cities on account of their menace to morality, health and
decency (in what way it is not necessary to specify); or the
keeping clear of watersheds to protect the water reservoirs of
cities from damage by devastating fires or the peril of them, from
accumulation of "tree tops, boughs and lops" left upon the ground.
*
The cases and their incidents hardly need explanatory comment.
They justify the prohibition of the use of property to the injury
of others, a prohibition that is expressed in one of the maxims of
our jurisprudence. Such use of property is, of course, within the
regulating power of government. It is one of the objects of
government to prevent harm by one person to another by any
conduct.
The police power has some pretense for its invocation. Regarding
alone the words of its definition, it embraces power over
everything under the sun, and the line that separates its legal
from its illegal operation cannot be easily drawn. But it must be
drawn. To borrow the illustration of another, the line that
separates day from night cannot be easily discerned or traced, yet
the light of day and the darkness of night are very distinct
things. And as distinct in our judgment is the puissance of the
Constitution over all other ordinances of power, and as distinct
are the cited cases from this case, and if they can bear the extent
put upon them, what extent can be put upon the case at bar or upon
the limit of the principle it declares? It is based upon the
insistency of the public interest and its power. As we understand,
the assertion is that legislation can regard a private transaction
as a matter of public interest. It is not possible to express the
possession or exercise of more unbounded or irresponsible power. It
is true, in mitigation of this declaration and of the alarm that it
causes, it is said that the declaration
Page 256 U. S. 168
is not necessarily conclusive on the courts, but "is entitled,
at least, to great respect." This is intangible to measurement or
brief answer. But we need not beat about in generalities or grope
in their indetermination in subtle search for a test of a legal
judgment upon the conditions, or the power exerted for their
relief. "The Rent Law" is brought to particularity by the
condemnation of the Constitution of the United States. Call it what
you will -- an exertion of police or other power -- nothing can
absolve it from illegality. Limiting its duration to two years
certainly cannot. It is what it does that is of concern. 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 practically marks the doom
of judicial judgment on legislative action.
The wonder comes to us, what will the country do with its new
freedom? Contracts and the obligation of contracts are the basis of
its life and of all its business, and the Constitution, fortifying
the conventions of honor, is their conserving power. Who can
foretell the consequences of its destruction or even question of
it? The case is concerned with the results of the German war, and
we are reminded thereby that there were contracts made by the
National Government in the necessity or solicitude of the conduct
of the war -- contracts into which patriotism eagerly entered, but,
it may be, interest was enticed, by the promise of exemption
Page 256 U. S. 169
from a burden of government. Burdens of government are of the
highest public interest, and their discharge is of imperious
necessity. Therefore, the provocation or temptation may come to
those who feel them that the property of others (estimated in the
millions, perhaps) should not have asylum from a share of the load.
And what answer can be made to such demand within the principle of
the case now decided? Their promises are as much within the
principle as the lease of Hirsh is, for, necessarily, if one
contract can be disregarded in the public interest, every contract
can be; patriotic honor may be involved in one more than in
another, but degrees of honor may not be attended to -- the public
interest being regarded as paramount. At any rate, does not the
decision just delivered cause a dread of such result and take away
assurance of security and value from the contracts and their
evidences? And it is well to remember that other exigencies may
come to the Government making necessary other appeals. The
Government can only offer the inducement and security of its bonds,
but who will take them if doubt can be thrown upon the integrity of
their promises under the conception of a public interest that is
superior to the Constitution of the United States?
It comes to our recollection also that some States of the Union,
in consummation of what is conceived to be a present necessity,
have also entered into contracts of like kind. They, too, may come
under a subsequent declaration of an imperious public interest, and
their promises be made subject to it.
The prophecy is not unjustified. This court has at times been
forced to declare particular state laws void for their attempted
impairment of the obligation of contracts. To accusations hereafter
of such an effect of a state law, this decision will be opposed,
and the conception of the public interest.
Page 256 U. S. 170
Indeed, we ask, may not the State have other interests besides
the nullification of contracts, and may not its police power be
exerted for their consummation? If not, why not? Under the decision
just announced, if one provision of the Constitution may be
subordinated to that power, may not other provisions be? At any
rate, the case commits the country to controversies, and their
decision, whether for the supremacy of the Constitution or the
supremacy of the power of the States, will depend upon the
uncertainty of judicial judgment.
*
Welch 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.