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Mr. MacCHESNEY. The Supreme Court of the United States has passed on that question, in which they held that a declaration of Congress is not sufficient, but must be sustained by evidence conclusive upon the court itself.
Representative BLANTON. Suppose we are undecided as to whether we shall stipulate that there is an emergency or that we enact this law by virtue of our police power, and suppose that we stipulate in the bill a declaration that it affects the morals and peace and sanitary conditions of the people of the District of Columbia and that we should enact a law hinging it upon that basis. But suppose that condition did not exist and the Supreme Court should hold that our declaration shall support the law. In other words, suppose
Mr. MacCHESNEY. I get your question perfectly. The legislative declaration that certain things affect the morals, health, and welfare of the people, so far as it is a declaration of legislative finding, would be much more difficult to produce evidence upon, and therefore the judgment of the Congress would go very much further and, much as I regret to say it, I think it would be much more controlling on the court than a declaration assuming that neither the emergency nor those facts existed. I think that the court would be compelled by force of circumstances to accept your declaration with reference to the health and welfare of the people, whereas they could require evidence on the other point because it is available. In other words. this is a stronger statement, assuming it could be sustained at all, than the other, but there is no indication yet in the decisions of the Supreme Court of the United States, and I have examined every one of them from the foundation of the Government down to two years ago, that the Supreme Court has yet been willing to go thus far in the regulation of private business.
Representative BLANTON. Would the Supreme Court consider the quandry of mind that seems to be present in the committee as to which fundamental we should hang the bill on?
Mr. Mac CHESNEY. It is hard enough to guess what Congress is thinking about without attempting to say what the Supreme Court might think.
The CHAIRMAN. It is now 12 o'clock, and we will have to close our hearing for this morning.
Senator COPELAND. Could we not have the privilege of having General MacChesney before us again? He appears to possess a civic consciousness and a social soul, conditions very rare in most lawyers' minds, in my judgment, and we need his testimony.
Representative HAMMER. We need it very much, indeed.
Senator COPELAND. If he could appear before us this evening, so far as I am concerned, I would like to have him do so, and particularly to thresh out section 20 of the bill.
Representative BLANTON. I move that we give General MacChesney such time as he wants, not to be taken out of the time of the real estate men, because he is well versed on this subject and we are getting some valuable information from him.
Representative HAMMER. Permit me to add that, if it is not too much trouble, he be requested to give us a list of the cases showing the limitations to which we can go and the powers under the police power.
Mr. MacCHESNEY. I will do the best I can in the time available. I worked for seven months upon the extent to which the Supreme Court has gone, and I can not in any one afternoon give all the cases on the other side.
Senator COPELAND. If you would be good enough to enlarge upon the case of Munn against Illinois, I think you would give us the information we need. You will remember that it specifically states in the first paragraph of the decision that when the property is necessary for the public good, the Government may regulate the manner in which the property shall be used. It cites the long accustomed power to establish the maximum charge for services rendered in the bakers' and millers' and inkeepers' cases. I am particularly anxious to know whether or not in your judgment the Congress has greater power in the District of Columbia than it has in the States as regards the control of public housing.
Mr. MacCHESNEY. Whether Congress has greater control in the District of Columbia than a legislature has in its State?
Senator COPELAND. Yes. The fourth paragraph of that decision covers the point where the owner must submit to control by the public for the common good; the sixth paragraph where there is a limitation by legislative enactment as to rates and charges for services; and the ninth paragraph, where it refers to the ninth section of the first article of the Constitution operating only as a limitation on the power of Congress to in any respect affect the States in the regulation of their domestic affairs, which of course I assume to mean Congress would have unlimited power here in the District. If you could bring us light on those matters you would render a real public service and be of great assistance to Congress.
Mr. Mac CHESNEY. I have not the presumption to suppose that in the afternoon at my disposal I could attempt to very greatly enlighten the committee with reference to some of those questions, but I am familiar with that decision and I will do the best I can.
Representative HAMMER. There is another matter in which I am interested. Why have we a preamble in the bill at all? I know that Congress has a way of declaring an act for certain purposes and other purposes, and then the act closes by declaring that the act may be repealed. I think that is mere surplusage. Mr. Mac CHESNEY. You mean the preliminary statement? Representative HAMMER. Yes.
Mr. MACCHESNEY. The reason for that is undoubtedly to get away from the Chastleton case, which held that the emergency had ceased, and therefore they are attempting to get out of that line of
Representative HAMMER. But why say anything about it? Make your law without giving your reasons. It is not the duty of Congress to tell the Supreme Court of the law. It is the duty of the Supreme Court to know it.
Mr. MacCHESNEY. But Congress is endeavoring very largely in raising that question and by this statement to make it difficult for the Supreme Court, in the absence of evidence, to declare unconstitutional what upon the facts of the bill they probably would so declare. In other words, you are attempting to control the Supreme Court by a statement with reference to conditions not contradicted or capable of support by evidence.
Representative HAMMER. My idea is to keep your reasons in own mind and enact the legislation without pointing out what it is based on.
Mr. MACCHESNEY. I can not say what was in the minds of the draftsmen of the preamble, but if I were attempting to draft a bill to accomplish these purposes I would put in provisions something of that character, because it calls upon the inherent power of the Federal Government to remedy existing abuses.
Representative HAMMER. Under the old decisions the declaration of Congress is legislative and not judicial, and the courts were bound by it until a decision to the contrary.
Mr. MACCHESNEY. That is true. Representative HAMMER. But why should we bother with saying what it is now? When the case goes up to the Supreme Court let the attorneys who appear before the court find the basis in the Constitution on which they want to stand their act and then trim their sails accordingly or cut their clothing according to their merchandise. What is the use in endeavoring to say here what
Mr. MacCHESNEY. I am sure that Mr. Whiteford, who will probably have to argue the case if it goes to the courts, would rather have it out than in. I mean it would strengthen the bill.
Representative HAMMER. I have in mind a case in 259 Supreme Court Reports, in which it was said that a preamble is absolutely unnecessary, that it is not the duty of Congress to tell the Supreme Court what part of the Constitution they are basing their acts on, but it is the duty of the court to know it. Frequently I have known attorneys to go before the court, even good attorneys, and find that their case would go off on some point not raised in the pleadings at all and not even mentioned. So far as legislation is concerned in my State and in any State so far as I know, they do not have preambles with their laws unless it be some particular statute. that custom must have grown up in States where their constitution required that they should state why and upon what the act is based
Mr. MacCHESNEY. I might say that it is customary, however, in cases which are based upon the inherent as opposed to the specific and detailed grant of powers of the Constitution, to state upon what it is based.
Representative HAMMER. The case to which I referred seems to indicate that it is absolutely unnecessary. That point is very interesting
Mr. MACCHESNEY. It tends to sustain the legislation.
Mr. WHITEFORD. Mr. Chairman, I want to offer in evidence the report of the National Association of Real Estate Boards on the real estate market, December 31, 1924. It shows no shortage of properties.
The CHAIRMAN. That may be filed with the committee.
(The “Report on the real estate market as of December 31, 1924, by the National Association of Real Estate Boards,” is filed with the committee.)
The CHAIRMAN. The committee will now stand in recess until 7.30 this evening. The hearings this evening will be held in the committee room here in the Capitol.
(Whereupon, at 12 o'clock meridian, the joint subcommittee took a recess until 7.30 o'clock p. m.)
The joint subcommittee met pursuant to adjournment at 7.30 o'clock p. m., Senator L. Heisler Ball, chairman, presiding.
The CHAIRMAN. The session to-night is to be devoted to a statement of General Mac Chesney, which is not to be charged against the time of the real estate people in the eight-hour allotment. STATEMENT OF NATHAN W. MacCHESNEY, GENERAL COUN
SEL NATIONAL ASSOCIATION OF REAL ESTATE BOARDS, CHICAGO, ILL.-Resumed
Mr. MacCHESNEY. Mr. Chairman and gentlemen of the committee, if it were not at the request of the committee I would hesitate very much to undertake to enlighten this committee on some of the questions they asked this afternoon, without a very recent and full review of all of the cases, but I have attempted to get together the authorities that I knew about in order to present them to the committee at this time.
Mr. Chief Justice Taft, in a case in the Supreme Court of the United States, Adkins v. Children's Hospital, in 26 U. S., at page 562, said that the boundary of the police power beyond which its exercise becomes an invasion of the guaranty of liberty under the fifth and fourteenth amendments to the Constitution, is not easy to mark. Our court has been laboriously engaged in picking out a line in successive cases. We must be careful, it seems to me, to follow that line as well as we can and not to depart from it by suggesting a distinction that is formal rather than real.
It seems to me that when we attempt to define what is within and without the police power we are attempting to do something that has always been found difficult by the courts in a particular case, but there are certain classes of cases which have been held to be clearly outside of it, and certain classes of cases which have been included, and there are some border-line cases, like this case of Adkins v. the Children's Hospital, which involved a minimum-wage law, which might be within or without, and which part of the court found to be outside of the limits and the dissenting opinion felt should have been declared within the limits of the police power.
Senator JONES of Washington. Before you proceed, General, will you let me ask you this question? Has there ever been any case decided by the Supreme Court construing the language of the Constitution with reference to the power of Congress over the District of Columbia?
Mr. Mac CHESNEY. Yes; I am going to discuss that. That is one of the first things I am going to take up, and perhaps I might
I plunge right into that now as long as you have asked the question. .
In the first place, in order to determine what the powers of Congress over the District of Columbia may be, we have to determine whether or not the residents of the District of Columbia are citizens of the United States, and after a brief investigation I have discovered that the game laws apply within the District and that the people who live here are entitled to the protection of the Constitution.
Senator COPELAND. They doubt it, though.
Mr. MacCHESNEY. In the Slaughterhouse cases (83 U. S. p. 36) the Supreme Court of the United States in discussing this question said that prior to the passage of the fourteenth amendment eminent judges had said that no man was a citizen of the United States except he was a citizen of one of the States composing the Union and that those who had been born and resided always in the District of Columbia are not citizens. So it is a question that has received serious consideration by the Supreme Court.
Then followed a series of cases. The fourteenth amendment was framed to read:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
This language is not entirely happy because of the use of the word "and citizens of the United States and of the State wherein they reside"-because the people in this District do not reside in any State, and it might be held that the sentence not applying in both its aspects, they were not citizens within the meaning of the amendment, but the court in passing on that said:
The first observation we have to make on this clause is that it puts at rest both the questions which were stated to have been the subject of differences of opinion, It declares that persons may be citizens of the United States and without regard to their citizenship of a particular State, and it overturns the Dred Scott decision. * * * The next observation is more important. It is that the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. It is quite clear, then, that there is a citizenship of the United States and a citizenship of a State which are distinct from each other and which depend upon different characteristics or circumstances of the individual.
This case settled, because it has never been questioned since then, that a person born and residing in this District is a citizen of the United States and is therefore entitled to the privileges and immunities guaranteed citizens of the United States under the Constitution of the United States.
I take it that this question arises because of the language of section 8, Article I, of the Constitution, which says, defining the powers of Congress:
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 and I call your attention to thisand 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, and arsenals, dockyards, and other needful buildings.
And it has never been held that so far as other places are concerned, that the jurisdiction of the courts and the statutes of the United States is destroyed with reference to such property because of particular legislation with reference to it.
I assume that this question arose because of the language of the fourteenth amendment, because one of the papers filed in this proceeding apparently calls attention to the fact that the fourteenth