will not assign a "wrongful purpose or motive," or determine whether it is "mischievous in its tendencies," and that it will not enter into the domain of legislation merely on the grounds of “justice or reason or wisdom." These cases further show that the court considers the responsibility of a "delicate and awful nature," and, therefore, that every presumption will be given to the high sense of duty and public trust of the legislators and the motives which prompt their acts and the exercise of their powers. In other words, that the court will not declare an act of Congress unconstitutional by indirection, by assumption of power by the court, by going outside of the case under consideration, by the mere interpolation of an extraneous statement in the decision of the case, when the issue is not squarely and fairly before the court, or when it is not absolutely necessary to declare the act unconstitutional in order to decide that particular case. There are numerous instances of the constitutionality of acts of Congress which have been presented to the court along with other issues just as in the Chastleton case, and wherever and whenever the court has found it possible to decide the case on some other ground, other than passing on the constitutionality of the act, it has invariably followed this rule. In the Chastleton case the court decided that there were no facts sufficient before the court to declare the act of May 22, 1922, unconstitutional, and remanded the case to the lower court to take testimony. That was the decision of the court in that case. Nothing else was necessary to be done. There was no question before the court as to the constitutionality of the act in 1924. No assignment of error brought up that question. It was not the issue in the case and, therefore, in order to make such the decision to declare the act unconstitutional as of and from the 21st day of April, 1924, the court would have had, of its own motion, voluntarily, without request, without assignment of error, with nothing before it, to pick up, to inject into or interpolate in the case the question of whether the act, at the time of the rendering of the decision, was constitutional or not. Is it reasonable to suppose that such was the intention of the court? In order to arrive at any such determination it would be necessary to assume that the court deliberately and intentionally intended to tear down, overthrow, set aside, overrule, and destroy the long line of decisions dating back for 136 years and maintained, supported, and upheld by a long line of distinguished and learned judges; a line of decisions which has strengthened the court in public support, which has been its bulwark when attacked by radical and foe, and which has daily and yearly brought it into greater admiration and respect and made it to-day the Rock of Gibraltar to all liberty-loving people of a free republic! Only an arch enemy of a republican form of government with its three branches, separate and distinct and all powerful within their spheres, could imagine for one moment that there was any intention on the part of the members of the Supreme Court of the United States to assume or take unto themselves the power to say to the Congress of the United States that, although, after a careful investigation of the facts, circumstances and surroundings which enter into and create the emergency in the rental conditions of the District of Columbia. yet from the judgment which all the members of the court have arrived at-not through investigations and hearings and the taking of testimony, but simply through knowledge gained through their daily intercourse of living-this knowledge should overcome and supersede legislative knowledge obtained through the channels of government and enacted into legislation intended, "for improvement made in the true spirit of the age or for salutary reforms in abuses." JUDICIAL NOTICE (1) The power to take judicial notice is to be exercised with caution. (2) The matter of which a court will take judicial notice must be a matter of common and general knowledge. (3) A matter properly a subject of judicial notice must be "known" that is well established and authoritatively settled, not doubtful or uncertain. Professor Wigmore, in his well-known and authoritative treatise on the Law of Evidence, says on this subject of judicial knowledge: "There is a real but elusive line between the judge's personal knowledge as a private man and his knowledge as a judge. The latter does not necessarily include the former; as a judge, indeed, he may have to ignore what he knows as a man, and contrariwise. But it is now well enough understood that there is here no impracticable dilemma. If the judge, as a man and an * * observer, has any personal knowledge, he may (and sometimes morally must) utilize it by taking the stand as a witness and telling in that capacity what he knows (ante, Sec. 1909); this solves the dilemma without either injuring justice or violating principle. It is therefore plainly accepted that the judge is not to use from the bench, under the guise of judicial knowledge, that which he knows only as an individual observer." (Wigmore on Evidence, 2d edition, vol. 5, p. 572, sec. 2569.) Can the cessation of the emergency be predicated alone on the public knowledge that "the Government has considerably diminished its demand for employees "? Can it be predicated upon extensive activity in building operations? Is it not possible that the decrease in Government employees has been more than offset by an increase in residents and inhabitants in Washington during the past six years? Is it not possible that with the almost total suspension of all building operations for the five years prior to 1923, buildings for residential purposes have not yet caught up with the demand? Is it not possible that the great activity in building in the past few years has been expended on buildings only a small percentage of which were for residential purposes, which did not tend to relieve the s'tuation? Is it not possible that such residential properties as were built were for residences for people whose incomes were greater than these of Government employees? Are not these questions all factors in the determination of the question of an emergency? Can any of them be answered definitely or with certainty by any one man? Can the answer to them be said to be a matter of common or general knowledge? The answer appears to be that Congress, with full knowledge of the decision in the Chastleton case and after a thorough investigation, undertaken by committees, on May 16, 1924, which was almost a month after the rendition of the Chastleton decision, by overwhelming majorities in both House and Senate, and approved by the President of the United States, declared that the emergency still continued to exist. In view of this finding by Congress, can it not be said that the matter is at least so doubtful and uncertain as not to be the proper subject for a declaration of judicial knowledge, and that, therefore, this power, which should only be exercised with the greatest caution, should not be exercised, particularly in a case where the constitutionality or operation of an act of Congress is involved. If the case is to be determined on the theory of the power of judicial knowledge as against legislative knowledge, then a precedent is established whereby all legislative acts may be set aside and rendered null and void, and the judiciary will have attributed to themselves legislative powers and functions. In view of the scrupulous care which the Supreme Court has always exercised in deciding constitutional questions, would it not be a violation of all precedents to set aside an act of Congress under the power of judicial notice when so many unknown and uncertain factors and elements necessary to such judicial knowledge are involved in the question? Would it not be an encroachment upon, in fact a usurpation of the power of, the legislative branch of the Government by the judicial branch? On this subject the Supreme Court itself has spoken in no uncertain terms in the case of Livingston v. Darlington (101 U. S. 407) as follows: "And as it does not appear upon the face of the statue, or from any facts of which the courts must take judicial cognizance, that it infringes rights secured by the fundamental law, the legislative determination is conclusive upon the courts. "It is not a part of their functions to conduct investigations of facts entering in questions of public policy merely and to sustain or frustrate the legislative will, embodied in statutes as they may happen to approve or disapprove its determination of such questions. "The power which the legislature has to promote the general welfare is very great and the discretion which that department of the Government has, in the employment of means to that end, is very large. While both its power and its discretion must be so exercised as not to impair the fundamental rights of life, liberty, and property, and which, according to the principles upon which our institutions rest,' the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails as being the very essence of slavery itself; yet 'in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of public opinion or by means of the suffrage.' Yick W. v. Hopkins (118 U. S. 370). The case before us belongs to the latter class. "If all that can be said of this legislation is that it is unwise or unnecessarily oppressive to those manufacturing or selling wholesome oleomargarine as an article of food, their appeal must be to the legislature or to the ballot box, not to the judiciary. The latter can not interfere without usurping powers committed to another department of government." THE ORIGINAL RENT LAW WAS HELD CONSTITUTIONAL AS THE EXERCISE OF THE POLICE POWER BY CONGRESS AND NOT ON THE GROUND OF EMERGENCY The next question naturally would be, Did the court intend in the Chastleton case to indicate to the Congress of the United States that it had the power to declare an emergency, but that, having once declared an emergency existed, it did not have the power to say how long that emergency may exist, in so far as rental conditions in the District of Columbia are affected? In Block v. Hirsh (256 U. S. p. 135) the court says: "Under the police power the right to erect buildings in a certain quarter of a city may be limited to from eighty to one houndred feet. Welch v. 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.) Water sheds in the country may be kept clear. (Perley v. North Carolina, 249 U. S. 511.) 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 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 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." This shows that the court held the rent acts of the District of Columbia constitutional under the general police power, and this is confirmed by the dissenting opinion of Mr. Justice McKenna (p. 158), where referring to the prevailing opinion sustaining the rent law, he says: "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 exists 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 than can pronounce the limit of its duration against the time expressed in it, and its justification practically marks the doom of judicial judgment over legislative action." It will be seen from both the majority and dissenting opinions that the majority opinion in the Block case held that Congress had the right, under the police power, to regulate rentals in the District of Columbia and, as Mr. Justice McKenna says: "There is no time limit as to its duration." Levy Leasing Co. v. Siegel (258 U. S. 289): Mr. Justice Clark says: "These authorities show that from time to time for a generation, as occasion arose, this court has held that there is no such inherent difference in property in land, from that in tangible and intangible personal property, as exempts it from the operation of the police power in appropriate cases, and in both the Marcus Brown and Block cases, supra, it was held, in terms, that the existing circumstances clothed the letting of buildings for dwelling purposes with a public interest sufficient to justify restricting property rights in them to the extent provided for in the laws in those cases objected to." Also: "If this court were disposed, as it is not, to ignore the notorious fact that a grave social problem has arisen from the insufficient supply of dwellings in all large cities of this and other countries, resulting from the cessation of building activities, incident to the war, nevertheless, these reports and the very great respect which courts must give to the legislative declaration that an emergency existed would be amply sufficient to sustain an appropriate resort to the police power for the purpose of dealing with it in public interest." EVERY POSSIBLE PRESUMPTION IS IN FAVOR OF THE VALIDITY OF A STATUTE AND THIS CONTINUES UNTIL THE CONTRARY IS SHOWN BEYOND A RATIONAL DOUBT In Atkins v. Kansas (191 U. S. 207), at page 233, the court says: "So also, 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. 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." In McCray v. United States (195 U. S. 27), the court says: "The judicial power may not usurp the functions of the legislative in order to control that branch of the Government in the performance of its lawful duties. This was aptly pointed out in the extract heretofore made from the opinion in Treat v. White (191 U. S. 264).” And, finally, Chief Justice Waite, speaking for the court in Sinking Fund Cases (99 U. S. 700), said at page 718: "Every possible presumption is in favor of the validity of a statute and this continues until the contrary is shown beyond a rational doubt. One branch of the Government can not encroach upon the domain of another without danger. The safety of our institutions depends in no small degree upon this salutary rule." (See also Fletcher v. Peck, 6 Cranch 87, 128; Dartmouth College v. Woodward, 4 Wheaton 518-625.) THE POWER TO DECLARE AN EMERGENCY IS THE POWER TO DECLARE ITS CESSATION. THIS POWER IS LEGISLATIVE In the Chastleton case the court helds as follows: "We repeat what was stated in Block v. Hirsh (256 U. S. 135, 154) as to the respect due to a declaration of this kind by the legislature so far as it relates to present facts. But even as to them a court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. "A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency cases or the facts change even though valid when passed. * * * "We need not inquire how far this court might go in deciding the question for itself, on the principles explained in (cases cited). 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. Here, however, it is material to know the condition of Washington at different dates in the past. Obviously the facts should be accurately ascertained and carefully weighed, and this can be done more conveniently in the Supreme Court of the District than here." But, although this opinion was rendered on April 21, 1924, the Supreme Court, on April 23, 1923, in the case of Commercial Trust Co. v. Miller, 262 U. S. 51, said: "The next contention of the Trust Co. is that, the act being a provision for the emergency of war, it ceased with the cessation of war, ceased with the joint resolution of Congress declaring the state of war between Germany and the United States at an end, and its approval by the President, July 2, 1921 (42 Stat. 105), and the proclamation of peace by the President August 25, 1921. "The contention, however, encounters in opposition the view that the power which declared the necessity is the power to declare its cessation and what the cessation requires. The power is legislative. "A court can not estimate the effects of a great war and pronounce their termination at a particular moment of time, and that its consequences are so far swallowed up that legislation addressed to its emergency had ceased to have purpose or operation with the cessation of the conflicts in the field." If the sole power to declare the cessation of an emergency exists solely in the Congress which had declared the emergency in reference to alien property, does not that same power exist solely in the Congress which declared the emergency in reference to rental conditions in the District of Columbia to say when that emergency ceases? The alien property consists of both land and tangible and intangible personal property. The rental regulations simply provide a rule as to possession and the fixing of a return on the investment. Is it any different from fixing the return on the use of money, as in the usury law? Is it any different from the fixing of the return that railways and other public utilities should receive on their investments? What is the line of demarcation between an emergency declared by the Congress in the alienproperty case and the emergency in the rental conditions of the District of Columbia? Certainly Congress is in a proper position, through its committees and its large membership, to know better the conditions in the District, which is under its eye and with which it is in daily contact, than it is to know the condition of alien property which is scattered over the entire United States and the outlying possessions. Did the court mean by its decision in the Chastleton case to say that the power which belonged solely to Congress in 1923 to declare the emergency at an end had been curtailed and impaired to such an extent in 1924 that that power now rested with the Supreme Court of the United States, or was shared by the latter with Congress itself? Could anyone attribute such a meaning or intention to the casual and unnecessary expression used in the Chastleton case? In conclusion, it is respectfully submitted that no foundation was laid by the parties herein which affirmatively shows any facts upon which this honorable court can find any contrary views than those expressed in the acts of Congress declaring the existence of an emergency; that the statement of Mr. Justice Holmes was obiter dictum, and, therefore, the judgment of the municipal court should be affirmed. A. COULTER WELLS, Attorney Amicus Curiæ in behalf of the Rent (Thereupon, at 11.55 o'clock a. m., the committee adjourned until to-morrow, Tuesday, January 13, 1925, at 10 o'clock a. m.) X |