22, 1919, as amended and extended by act approved August 24, 1921, as further amended and extended by act approved May 22, 1922, and as further amended and extended by act approved May 17, 1924, and any and all obligations, liabilities, and penalties which may have arisen or been incurred for any violation of said act and its amendments or of any order of this commission created thereunder, or which may hereafter arise or be incurred by any person or persons under the provisions of said Title II of said act or its amendments, are hereby preserved and continued in full force and effect, and shall be prosecuted and enforced by the commission hereby created in the manner herein provided.

That is just a continuation of the acts and doings of the commission. If you pass this bill, it carries it right over with the present functions of the commission.

Senator COPELAND. Did you ever have an adverse court ruling on the law which was enacted by the last Congress?

Mr. WHALEY. May I just finish this and then answer that question for you? I have only three more sections here. Senator COPELAND. Certainly.

Mr. WHALEY. They are immaterial sections.

Senator COPELAND. I raised the question because at this point you spoke about extending the provision of the acts, but go ahead. Section 52 provides that

Any and all actions and proceedings begun under the provisions of Title II of said food control and District of Columbia rents act and any of the amendments thereto shall be continued, determined, and enforced in the same manner and with the same effect as if they had been begun under the provisions of this act, and all powers and duties in respect to such proceedings, the enforcement of any and all penalties thereunder, the title, custody, and possession of all records and other property of every kind and nature whatsoever, and the disposition of all moneys heretofore vested and reposed in the commission created under said Title II of said act, as extended and amended, shall at the time and the date upon which this act takes effect be and become vested in the commission hereby created and established, any provision in said Title II or its amendments to the contrary notwithstanding.

This section provides for the enforcement of the proceedings and acts for the penalties which may have arisen under the old act, and provides that the title to all records and other property vested in the present commission shall be vested in the new commission created by this act.

Section 53 provides that

No action shall be brought to recover on any cause of action which may have accrued under Title II of said food control and District of Colmubia rents act, or which may hereafter accrue under the provisions of said title or of this act, and no prosecution for any fine or penalty imposed by said title or by this act shall be instituted after three years shall have elapsed since the time the right to maintain such action or to prosecute for such fine or penalty shall have accrued.

That is just putting the statute of limitations of three years in there. There is no statute of limitations defined in the act, and there is some question whether the statute of the District applies or not. That simply puts a three-year limit in there.

Section 56 is one of the vicious sections, the papers say, but all that it provides is:

This act shall take effect immediately.

That is all of the new sections. Now, Senator Copeland, I shall be glad to answer your question.

Senator COPELAND. Has the court held against you on some of the points in the old law?

Mr. WHALEY. On April 21, 1924, the Supreme Court of the United States, in deciding the Chastleton case, held that the question of emergency was one of fact, and sent the Chastleton case back to the District Supreme Court to take evidence on the question of whether an emergency existed in August, 1922, or not. In that opinion the court used the language which implied that if the court had to pass on the act at that time, from the facts which the court judicially knew, it would say that the act was inoperative. Immediately after that opinion was rendered Mr. Charles B. Linkins, acting as agent for Mr. Norment and for himself and Mr. Bates Warren, brought suits in equity asking for temporary injunction restraining the Rent Commission from proceeding in the hearing of certain cases then pending before the Rent Commission and setting up in their bill this expression or, as I would look upon it, this obiter dictum of the Supreme Court. That was on April 26, 1924. On the 16th day of May Congress extended the rent law for one year and on the 17th of May that act was approved by the President.

Representative STALKER. In what year was that?

Mr. WHALEY. 1924. On May 19, 1924, Mr. Justice Stafford granted a temporary injunction to Norment and Linkins and Bates Warren. Those cases are now on appeal as to whether he was correct in granting the injunction. That injunction was granted on May 19. On June 1 we began to receive into the commission notices from tenants of increases in their rents. On June 4 the case of Peck against Fink was instituted in the municipal court. That was a case by Mrs. Peck to eject Mrs. Fink from premises on the ground that the rent law was no longer operative. On June 30 Judge Mattingly, of the municipal court, denied the right of ejectment. On September 18, in the case of Rhodes against Brooks, in the municipal court, Judge O'Tool granted the writ of ejectment on the ground that the Supreme Court of the United States had decided the act inoperative. Senator COPELAND. Which was not the case, was it?

Mr. WHALEY. On November 3 the case of Peck against Fink was decided by the District Court of Appeals, Mr. Justice Robb rendering the decision. He reversed Judge Mattingly and held that the Supreme Court had intended, by the expression used in the Chastle

ton case

Representative HAMMER. The Supreme Court of the District of Columbia?

Mr. WHALEY. No; the Supreme Court of the United States had intended by the expression it used to declare the law inoperative. The decision went on to say that the extension of the law by Congress on the 16th of May, although the decision of the Supreme Court was rendered on April 21, had no constitutional basis. In other words, the appellate court took the position that Congress had no constitutional right to extend the act.

Senator COPELAND. Because the emergency had passed?

Mr. WHALEY. Because the Supreme Court had said that "From the facts we judicially know, the law is inoperative."

Senator COPELAND. Is it the opinion of the commission that there is a situation here demanding such legislation?

Mr. WHALEY. It is my opinion. You had better ask the other commissioners their opinion.

Senator COPELAND. Is it your opinion?

Mr. WHALEY. It is. I so testified last year and I have not changed my opinion.

Senator COPELAND. Upon what do you found that opinion?

Mr. WHALEY. The conditions that appear before us every day. Of course the commission has been rendered almost inoperative by these injunctions. There have been 40 injunctions granted and of course, since the decision of Mr. Justice Robb we have not attempted to hear cases on either side.

We have been flooded by both landlord and tenant, mostly landlords, since that decision, but we have felt that it was not fair to either side to render any decisions until the question was finally settled.

Senator COPELAND. Has the commission made any recent surveys? Mr. WHALEY. We have not.

Senator COPELAND. Have you personally made any such survey? Mr. WHALEY. I have not. The reason for that is this, Senator: As I said last year in my testimony, we did not have any money last year to make a survey. It was not because we did not want to make the survey, but we did not have the money to make a survey. Mr. Blanton misquoted me the other day in the House. If he will look in my testimony he will see that I said the reason why we did not make the survey was because we did not have the money. The Senate made a survey last year of the situation but the commission last year did not have any money for that purpose. We were just skating on the closest sort of margin.

Senator COPELAND. Would you consider such legislation as this proper legislation unless there is an emergency which is a menace to the health, morals, comfort, and peace of the community? Mr. WHALEY. I would.

Senator COPELAND. Would you think so?

Mr. WHALEY. I would. I believe it is both constitutional and legal to pass it under the police powers and the decisions of the Supreme Court of the United States.

Senator COPELAND. Even in the absence of evidence of the existence of an emergency?

Mr. WHALEY. Yes, sir. I do not think an emergency is necessary at all.

Senator COPELAND. I notice the preamble of the bill-

Mr. WHALEY. That is based on the health, morals, peace, and comfort of the community, and in the leading case of Bloch against Hirsh, which was decided not on the ground of emergency, but was decided under the police power, the cases cited there were decisions under the police power.

Senator COPELAND. That was the New York case?

Mr. WHALEY. No, sir; it was the District of Columbia case. The New York case was the Marcus Brown case, and was followed by the Siegel case in which Mr. Justice Clark rendered the decision in which he said New York tenement housing cases which were decided away back in 1901, and in which it was held that you could regulate real estate, that even in that case they had regulated it.

The CHAIRMAN. That was the act passed during the Roosevelt administration?

Mr. WHALEY. Yes.

The CHAIRMAN. That is the case to which I was referring in our conversation before we met this morning.

Representative BLANTON. Mr. Chairman, I would like to ask the gentleman some questions.

The CHAIRMAN. Very well.

Representative BLANTON. Then, if I understand you, Mr. Whaley, every decision that has been rendered as far as the matter has gone up to this time has held the law unconstitutional?

Mr. WHALEY. I did not say so, sir.

Representative BLANTON. What division has held that it was constitutional?

Mr. WHALEY. The Bloch against Hirsh case, the Siegel case, the Marcus Brown case.

Representative BLANTON. I mean since the Supreme Court of the United States spoke on April 21, 1924, what court has held this act constitutional?

Mr. WHALEY. I do not think there has been more than one case that has held it constitutional. That is the appellate court

Representative BLANTON (interrupting). I am not antagonizing you. I want to get the facts.

Mr. WHALEY. I know that.

Representative BLANTON. Since the Supreme Court on April 21, 1924, held that they would take judicial knowledge of the fact now that there was no emergency and said the law would be unconstitutional, is it not a fact that with the exception of one opinion rendered by Judge Mattingly, which was reversed, no court since then has held it constitutional?

Mr. WHALEY. It has not been up before any other court.

Representative BLANTON. Has not every court that has had it held it unconstitutional?

Mr. WHALEY. Only one court, the appellate court of the District, held it unconstitutional.

Representative BLANTON. Judge Robb held it and Judge Stafford held it.

Mr. WHALEY. He granted a temporary injunction.

Representative BLANTON. When he granted the temporary injunction did he not, in effect that far, hold it unconstitutional? He never set it aside, did he? Judge Stafford never set that temporary injunction aside, did he?

Mr. WHALEY. No.

Representative BLANTON. Then he has thus far held it unconstitutional, has he not?

Mr. WHALEY. Mr. Blanton, the only time this act has been held unconstitutional is when Mr. Justice Stafford had the cases of Linkins, Norment, and Bates Warren in those equity matters before him and granted a temporary injunction against the commission. Representative BLANTON. I understand.

Mr. WHALEY. He enjoined us from trying those cases.
Representative BLANTON. Let me ask you this question.

Mr. WHALEY. Let me finish, if you please. The case of Peck against Fink was one that went up to the court of appeals.

Representative BLANTON. Yes; I understood that, and Justice Robb held it unconstitutional?

Mr. WHALEY. Justice Robb held that the Supreme Court in the Chastleton case had decided it was inoperative.

Representative BLANTON. And based on that he held the law unconstitutional?

Mr. WHALEY. That is correct.

Representative BLANTON. Then, the last word from the court of appeals is that it is unconstitutional. Is not that the fact?

Mr. WHALEY. The last word from the court of appeals?

Representative BLANTON. Yes; and the last word we have had from the Supreme Court of the United States is that if they took judicial cognizance of the facts before them at that time, no emergency exist.

Mr. WHALEY. No; I do not construe it that way at all. That is just a lawyer's construction. You are entitled to yours and I am entitled to mine.

The CHAIRMAN. The old law that has been declared by Judge Robb unconstitutional was founded on an emergency. This act does not take the fundamental principle of an emergency, but is based on the police powers.

Representative BLANTON. I was coming to that. Mr. Whaley, you have taken the bill that Senator Ball introduced and my colleague, Mr. Lampert, from Wisconsin, introduced a companion bill in the House, and you have stricken out all reference to emergencies and you have inserted in lieu thereof the words "comfort, morals, peace, and welfare," and added a few new sections and that is substantially the present bill.

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Mr. WHALEY. That is correct.

Representative BLANTON. You have done that, adding the words comfort, morals, peace, and welfare," and striking out the word emergency," hoping thereby to escape the decision of the Supreme Court of the United States of April 21, 1924, and hoping that they will hold this law constitutional. Is not that the fact?

Mr. WHALEY. No, sir.

Representative BLANTON. What have you done it for?

Mr. WHALEY. Because this is supposed to be a permanent law and you do not base permanent laws on emergencies. I am basing the permanent law on the police powers under the Constitution for the general welfare of the community.

Representative BLANTON. The permanent law establishing a permanent rent commission was introduced by our friend, Senator Ball, who presides here, and was based on an emergency?

Mr. WHALEY. No; it was not.

The CHAIRMAN. I would like to state that it was never a permanent law. I introduced no bill previous to the present one that was not under an emergency and only to continue for a certain limited time.

Representative BLANTON. I understood that the bill introduced by Mr. Lampert in the House was a copy of your bill. It was a bill to make this commission permanent.

The CHAIRMAN. I have never introduced any bill until the present one that was to be permanent. My bill introduced a year ago was