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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 aitempted 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 surver Vir. Blanton misquoted me the other day in the House. If

i look in my testimony he will see that I said the reason why T! make the survey was because we did not have the money.

;"O p made a survey last year of the situation but the comW Last year did not have any money for that purpose.

it it skating on the closest sort of margin. p Sr. or COPELAND. Would you consider such legislation as this i roper legislation unless there is an emergency which is a menace o the health, morals, comfort, and peace of the community! Vír. 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 emer

gency exist.

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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.

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

time."

to extend the law two years and on the floor of the Senate I accepted an amendment cutting it down to one year.

Representative BLANTON. Then I understand it. Mr. Whaley, I believe you stated that for the past six years as a general rule landlords have not made improvements, they have not painted, they have not papered, they have not fixed up their plumbing, they have not put their buildings in good repair. I so understood you, as a general rule.

Mr. WHALEY. That is my own statement. I have no correction to make in it. I made it twice, and

Representative BLANTON. Now thenMr. WHALEY. Just a moment, please. That is based on inspections of buildings I have made personally and on the information obtained in the cases I have tried.

Representative BLANTON. With regard to heating, to what extent have the landlords not furnished heat during the past six years—as a general rule, or do you want to qualify that?

Mr. WHALEY. I can not specify as a general rule. When I made the statement of six years, I mean when a tenant got up and said, “We have not had any repairs for six years,” or “We have not had any repairs for 10 years,” or “We have not had any repairs for eight years," and the further statement “ We have lived here all this

Senator COPELAND. I would like to add a comment there, if I may.

Mr. WHALEY. That is the reason why I made my statement. It is not because I inspected six years ago.

Representative BLANTON. I understand that.

Mr. WHALEY. When I make a statement of that sort it is based upon testimony heard before me.

Representative BLANTON. It is your best judgment?
Mr. WHALEY. Exactly so, and from testimony heard by me.

The CHAIRMAN. Those are inspections you have made in cases that have been appealed to your commission?

Mr. WHALEY. Yes, sir; and the testimony taken before the commission in cases I have heard, and I have heard probably 270 or 300 cases.

The CHAIRMAN. A large number of the real estate men of Washington have never had cases appealed to your commission? Mr. WHALEY, Yes, sir.

The CHAIRMAN. Therefore they would be eliminated from this general proposition you have mentioned?

Mr. WHALEY. Certainly. There are exceptions, of course, I have been in buildings that have been beautifully kept up. I have allowed them the highest percentage I could. You asked what we allow them. We allow anywhere from 6 per cent up to 9 and sometimes as much as 10 per cent, and that is based on the condition in which the building is kept up. If it is poorly kept up we allow them 6 per cent. If it is better than that, we allow 7. That means 6 per cent net; that is the net percentage. If it is better than that we allow 8 per cent. If it is in fine condition we allow them 9 and sometimes 10 per cent. It is because the tenant is getting the benefit of the service that he is willing to pay, and the commission feels that he should pay a little higher rent because of the service he is receiving.

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Representative BLANTON. I would like to ask a few more questions, if I may. Has your commission, since you have been on it, ever issued an order requiring a landlord to do any improvement work?

Mr. WHALEY. No, sir. We have not had the power to do it. Representative BLANTON. You have never forced them to do it? Mr. WHALEY. We have not had the power to do it, but generally they have done it after we have fixed a low rate of return. They have gone in and repapered and repainted the place and fixed it up and come back to the commission and asked for a refixing of their rent, and we have refixed them and raised the rent and raised the percentage for them.

Representative BLANTON. Will you give a list of such cases as that? Mr. WHALEY. We can furnish it to you; yes.

Representative BLANTON. I wish you would. The Rent Commission has been in existence for the past six years?

Mr. WHALEY. Since 1919. Representative BLANTON. That is for the past six years. not think your statement is the greatest indictment you could bring against the Rent Commission? Mr. WHALEY. I do not consider it so.

Representative BLANTON. That for six years while we have had a rent commission there has been no improvement by landlords, showing that there must be some reason for the landlords not improving

Mr. WHALEY. Mr. Blanton, I tried to explain to you and I have explained to the committee that there has been no power in the act allowing us to make them do anything.

Representative BLANTON. I understand that.

Mr. WHALEY. The act is faulty in that direction. The object of the present bill is to give us power to make them do things.

Representative BLANTON. With regard to a survey, when you appeared before our House committee in February, 1924, was not the first question I asked whether or not you had made a survey of rental houses in the District?

Mr. WHALEY. It was.

Representative BLANTON. And you stated that you had not done so?

Mr. WHALEY. That is correct.

Representative BLANToN. Did not I suggest then to you that the first thing that ought to be done was to make such a survey?

Mr. WHALEY. You did.
Representative BLANTON. Did you ever make it?
Mr. WHALEY. We did not.

Representative BLANTON. Since May, 1924, your commission has had very little to do since the 40 injunctions were brought against you?

Mr. WHALEY. You are right.

Representative BLANTON. Have you made a survey since that time?

Mr. WHALEY. We have not.

Representative BLANTON. Have you made a personal survey since then, yourself?

Mr. WHALEY. I have not.
Representative BLANTON. Why have you not done so?

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