for any purposes of its own; and Congress acts therein as the legislature of the Union, but with exclusive jurisdiction extending to all legitimate subjects of legislation. (Citing cases.) But that this exclusive jurisdiction is limited and restricted by the Federal Constitution and the amendments thereof, and by the fundamental principles of right and justice recognized by that Constitution, is equally beyond question. (Story on the Constitution, p. 1234; Callan v. Wilson, 127 U. S. 640.) There is no place anywhere in our system of government, State or Federal, for the theory of legislative omnipotence claimed to appertain to the English Parliament. But except in so far as it is thus restricted by the fundamental law, the legislative authority of Congress over the District of Columbia is supreme and unlimited."

In the case of Lansburg v. District of Columbia (11 App D. C., p. 512) the Court of Appeals of the District of Columbia, in passing upon the constitutionality of an act of Congress prohibiting gift enterprises and holding it constitutional, said:

"It is not denied that the power of Congress to legislate in respect of matters affecting the public health, safety, peace, and morals within the District of Columbia is the same as that of the State legislatures within their several jurisdictions. It is neither greater nor less; for all of the guaranties of the Constitution respecting life, liberty, and property are equally for the benefit of all citizens of the United States residing permanently or temporarily in the District of Columbia, as of those residing in the several States of the Union.' (Kerr v. Ross, 5 App. D. C., 241, 247, 248; Callan v. Wilson, 127 U. S., 640.)"

In the case of Curry v. District of Columbia (14 App. D. C., 423), which was an appeal from the judgment of the police court of the District of Columbia rendered in a proceeding instituted for the purpose of testing the validity of the regulations made by the District of Columbia with reference to a hack stand adjacent to the station of the Baltimore & Potomac Railway station, the court, in discussing the power of Congress to legislate for the District of Columbia, at page 438, said:

"The power of Congress to legislate for the District of Columbia in all matters proper for legislation, whether of a general political nature or of merely municipal character, is given by the Constitution of the United States; and the extent of that power we regard as well established by judicial authority. The power is exclusive, but it is not unlimited, nor is it arbitrary. There is no place in our governmental system for arbitrary or unlimited power. Our institutions are radically at variance with the theory of the existence of any such power anywhere in our country. In the case of Loan Association v. Topeka (20 Wall., 622) the Supreme Court of the United States, by Mr. Justice Miller, said:

"The theory of our Government, State and National, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined power. There are limitations on such power which grow out of the nature of all free governments-implied reservations of individual rights-without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A and B, who were husband and wife to each other, should be no longer, but that A should thereafter be the husband of C, and B the wife of D, or which should enact that the homestead now owned by A should no longer be his, but should henceforth be the property of B.'

"The power of Congress in the District of Columbia, as elsewhere throughout the Federal Union, is distinctly limited by all the express guaranties of individual right contained in the Federal Constitution. No more in the District of Columbia than anywhere else within the United States, could the legislature of the Union pass a bill of attainder or an ex post facto law, or dispense with trial by jury, or establish a religion, or authorize unreasonable searches. All the general limitations imposed by the Constitution upon its authority are as applicable in the District of Columbia as in any other part of the United States. And not only are these express limitations applicable, but, in the language of Mr. Justice Miller, in the case just cited, all the 'implied limitations which grow out of the nature of all free governments' are equally applicable. The 'exclusive' power of legislation over this District which is vested in Congress by the Constitution, must be assumed to extend only to all lawful subjects of legislation; and invasions of those fundamental individual rights, which lie at the foundation of the social compact, and for the maintenance of which free government exists, are not lawful subjects of legislation.

"The Declaration of Independence is not, as has sometimes been flippantly asserted, a mere string of glittering generalities. It is a bill of rights which enters fundamentally into the structure of our Government; and the one great fundamental truth, which it seeks to enforce, is the doctrine of the equality of all men before the law. That doctrine is not again proclaimed in our Federal Constitution. It is nowhere referred to in the Constitution before the adoption of the fourteenth amendment. But in that amendment it was assumed as a cardinal principle of our republican institutions, and it was made obligatory upon the States, as such, that they should not deny to any person within their jurisdiction the equal protection of the laws.' Without the equal protection of the laws republican institutions can not exist. In fact, there is no civilized government of modern times that is not based, in theory at least, upon the principle of the equal protection of the laws to all citizens, although the practice is often halting and the influences of a baneful inequality in the past have not been wholly eliminated from the political system."

In all my investigation of the decisions on this subject, I find no language stronger than that of this opinion, nor do I find any more convincing. I commend the entire opinion to the consideration of the distinguished Senator from New York.

In the case of the District of Columbia v. Kraft (35 App. D. C., p. 253), which was a case that held constitutional the statute relating to gift enterprises in the District of Columbia, at page 265, the court said:

"The police power of Congress in the District of Columbia, upon the exercise of which this statute rests, is substantially the same under the fifth amendment as that which may be exercised by the States under the limitations of the fourteenth amendment."

In the case of Newman v. United States, ex rel. Prender (41 App., D. C., p. 37), in which case the Court of Appeals of the District of Columbia held the so-called loan shark law constitutional in the District of Columbia, the court, at page 48, said:

"Congress, in legislating for the District of Columbia, is vested with the ordinary police power of the States within their several limits, and is not limited by the provisions of the fourteenth amendment. However, as has been said in a former case, The power is exclusive, but it is not unlimited, nor is it arbitrary.' Curry v. District of Columbia." (14 App., D. C., 423.)

In the case of Willson v. McDonnell (49 App., D. C., 280, 265 Fed., 432), in which case the court of appeals held the Saulsbury Resolution relating to rents in the District of Columbia unconstitutional, the court, at page 282, said: "It will be well, before proceeding to an analysis of the resolution before us, to determine to what extent the people of this District are protected by the Constitution of the United States. The assertion has been made that, Congress having power to exercise exclusive legislation in all cases whatsoever' in the District, the provision of the Constitution, which protect persons and property in all other places under the jurisdiction of the United States, are without particular force here. To this we can not accede. It would be an anomalous situation, indeed, if nearly half a million people at the seat of Government, under the very dome of the Capitol, should suffer such a discrimination and be outside the protection of the Constitution. Fortunately, this question has been set at rest by the Supreme Court of the United States." (Citing Callan v. Wilson 127 U. S., 450: Wight v. Davidson 181 U. S. 371. Both of these cases have been heretofore quoted from.)

RIGHT OF CONGRESS UNDER POLICE POWER TO REGULATE PRIVATE BUSINESS

One of the latest observations of the Supreme Court of the United States with reference to police power under which Congress may regulate a private business is that of Pennsylvania Coal Co. v. McMahon (260 U. S., page 393). This case dealt with the constitutionality of the statute forbidding the mining of anthracite coal in such a way as to cause the subsidence of any structure used as a human habitation. As applied to this case, the statute admittedly destroyed previously existing rights of property and contract. The question was whether police power could be stretched so far. The whole decision is a discussion of the police power, but some of the cases that have been cited in connection with the rent hearing was referred to in that opinion. Speaking of the fact that the protection of private property is provided for in the fifth and fourteenth amendments, the court said:

"When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But that can not be accomplished in this way under the Constitution of thte United States. The general rule, at least, is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. As we already have said, this is a question of degree and, therefore, can not be disposed of by general propositions. But we regard this as going beyond any of the cases decided by this court. The late decisions upon laws dealing with the congestion of Washington and New York, caused by the war, dealt with laws intended to meet a temporary emergency, and providing for compensation determined to be reasonable by an impartial board. They went to the verge of the law, but fell far, short of the present act. (Block v. Hirsh, 256 U. S., 135; Marcus Brown Holding Co. v. Feldman, 256 U. S., 170; Levy Leasing Co. v. Siegel, 258 U. S., 242.) 'We assume, of course, that the statute was passed upon the conviction that an emergency existed that would warrant it, and we assume that an exigency exists that would warrant the exercise of eminent domain. But the question at bottom is upon whom the loss of the changes desired should fall."

COMPARISON OF THE DISTRICT OF COLUMBIA WITH FORTS AND ARSENALS

The distinguished Senator from New York likened the relationship of Congress to the District of Columbia to that of its relationship to forts, arsenals, dock yards, and other needful buildings. Certainly, no further observation is necessary to point out the difference than to state that forts, magazines, arsenals, dock yards, and such buildings are the private property of the Government of the United States, as evidenced by the fee-simple title to the ground itself. No such relationship exists in the District of Columbia. The United States has permitted the private ownership of property in the District of Columbia. This it does not do in forts, arsenals, etc. So complete is the domination of the Federal Government over land which it owns that it has been held in the case of Battle v. United States (209 U. S. 36) that murder committed in a post office, over which the State had ceded jurisdiction, may be prosecuted in a Federal court under section 5339, Revised Statutes. Indeed, the right of the States of Maryland and Virginia to legislate for the District of Columbia was ceded by the act of July 16, 1790, providing for the establishment of the seat of the Government, for that act accepted a certain district, but by its provisions State laws were not to be affected until Congress provided for the government of the district.

Such provision was not made until February, 1801, and the State right to legislate continued until that time, and where the acts of Congress made no changes in the existing laws the laws of Virginia and Maryland remained in force in the parts of the District ceded by them, respectively.

If the United States owned land upon which the rental property was erected, the United States, as lessor, might reserve the right to fix the rents that the lessee should receive from its tenants. The ownership of the real estate, however, brings the citizens of the District of Columbia with respect thereto within the rights, privileges, and immunities of the Constitution.

ARE RESIDENTS OF THE DISTRICT OF COLUMBIA CITIZENS OF THE UNITED STATES?

In the Slaughter House cases (83 U. S., p. 36) the Supreme Court of the United States, in discussing the 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. Then followed the Dred Scott case, and to remove the difficulty arising out of that decision, the first clause of the first section of the fourteenth amendment was framed in these words:

"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."

The court, on page 73, said:

"The first observation we have to make of this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States 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 in the individual." Respectfully submitted.

EXHIBIT G

ROGER J. WHITEFORD.

Hon. L. HEISLER BALL,

DEPARTMENT OF JUSTICE, Washington, D. C., January 24, 1925.

Chairman Committee on District of Columbia,

United States Senate, Washington, D. C.

MY DEAR SENATOR: Your letter of the 12th instant requests my views upon the so-called rent bill (S. 3764), now being considered by a joint subcommittee of the Senate and House District Committees.

I had purposed to discuss to some extent the prime legal question involved, the constitutionality of the proposed legislation, but I find that a memorandum brief on this point has been submitted by the Rent Commission (Rec. of Hearings, part 1, p. 42 et seq.), and the committee has heard Mr. Nathan W. MacChesney, representing the National Association of Real Estate Boards. It would seem, therefore, that an extended discussion at this time would be but cumulative.

The question whether the proposed legislation, if enacted, would be upheld as a valid exercise of the constitutional power of Congress is one upon which no opinion either way can fairly be ventured with positiveness. However, certain decisions may be helpful and illuminating.

Congress has entire control over the District of Columbia for every purpose of government, national and local, and may exercise within the District all the legislative power that the legislature of a State might exercise within the State. Capital Traction Co. v. Hof (174 U. S. 1, 5), the United States possess complete jurisdiction both of a political and municipal nature over the District. Wight v. Davidson (181 U. S. 371, 380). Congress, exercising its police power over the District is limited only by the fifth amendment. The police power is one of the most essential of powers, and at times the most insistent, and always one of the least limitable of the powers of government. District of Columbia v. Brooke (214 U. S. 138). This power is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort, and general welfare of the people and is paramount to any rights under contracts between individuals. Manigault v. Springs (199 U. S. 473, 480).

In the exercise of its police power the United States may, consistently with the fifth amendment, impose for a permitted purpose, restrictions upon property although it results in serious depreciation of property values. Calhoun v. Massie (253 U. S. 170). This is not a taking within the meaning of the fifth amendment. The Legal Tender Cases (12 Wall. 457).

Of course, statutes passed under the exercise of the police power must have some fair tendency to accomplish or aid in the accomplishment of some purpose for which the legislature may use the power. Otherwise, their enactment can not be justified under that power. If the means employed have no real substantial relation to a public object which the government can accomplish; if the statutes are arbitrary and unreasonable and beyond the necessities of the case, the courts will declare their invalidity. Welch v. Swasey (214 U. S. 91, 105).

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. Neither is the relation of landlord and tenant one not so affected by a public interest as to render it not subject to regulation by the exercise of that power. Levy Leasing Co. v. Siegel (258 U. S. 242).

Aside from the war power, the regulation of prices, except for public utilities, is unusual, although usury statutes which forbid the taking of exorbitant interest on the loan of money are common. The power of regulation exists, however, and is not limited to public uses or to property where the right to demand and receive service exists, or to monopolies or to emergencies. It may embrace all cases of public interest, and the question is whether the subject has become important enough for the public to justify public action. Peo. ex. rel. Durham Corp. v. LaFetra (230 N. Y. 429, 445), (affirming Levy Leasing Co. v. Siegel, supra); Block v. Hirsh (256 U. S. 135).

To say that a business is clothed with a public interest is not to determine what regulation may be permissible in view of the private rights of the owner. The extent of the regulation is not a matter of legislative discretion solely. It depends upon the nature of the business, on the features which touch the public, and on the abuses reasonably to be feared. Wolff Packing Co. v. Industrial Court (262 U. S. 522, 539).

Many instances of what have been held to be clothed with a public interest are cited in Block v. Hirsh and Levy Leasing Co. v. Siegel.

With respect to the proposed legislation affecting contract relations between landlord and tenant, attention is invited to the decisions declaring that private contract rights must yield to the public welfare where the latter is appropriately declared and defined and the two conflict. This rule was reiterated in Union Dry Goods Co. v. Georgia P. S. Corp. (248 U. S. 372, 375).

So far as the due process clause of the fifth amendment is concerned, the holdings are that the term due process of law means the securing to a person of notice of, and an opportunity to be heard in, a proceeding effecting his property, in a court having jurisdiction. That the tribunal is not a court in the ordinary acceptance of the term is not material. Twining v. New Jersey (211 U. S. 78, 110, 111); American Land Co. v. Zeiss (219 U. S. 47, 71).

Although the declaration of the legislature is not conclusive upon the courts, yet where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what the facts establish be a fairly debatable one it is is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker. Radice v. New York (264 U. S. 292, 294), distinguishing Adkins v. Children's Hospital (261 U. S. 525), (The District of Columbia minimum wage law). An argument frequently made against regulation of rental property is that such property can not be withdrawn or the owner can not cease to do business as in other gainful pursuits. But the court in Block v. Hirsh (256 U. S., at 157), said on this point:

"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 "

*

In Hadacheck v. Los Angeles (239 U. S. 394), the Supreme Court upheld an ordinance of the city of Los Angeles making it unlawful to establish or operate a brickyard or brick kiln or a factory or place for manufacturing brick, within described limits of the city. The language of the opinion is of interest in connection with a consideration of the extent of the police power. After referring to the opinion of the Supreme Court of California, which rejected the contention that the ordinance was not in good faith enacted as a police measure, and that it was intended to discriminate against the petitioner or that it was actuated by any motive of injuring him, it was said (pp. 409, 410):

"We think the conclusion of the court is justified by the evidence and makes it unnecessary to review the many cases cited by petitioner in which it is decided that the police power of a State can not be arbitrarily exercised. The principle is familiar, but in any given case it must plainly appear to apply. It is to be remembered that we are dealing with one of the most essential powers of government, one that is the least limitable. It may, indeed, seem harsh in its exercise, usually is on some individual, but the imperative necessity for its existence precludes any limitation upon it when not exerted arbitrarily. A vested interest can not be asserted against it because of conditions once obtaining. Chicago & Alton R. R. v. Tranbarger (238 U. S. 67, 78). To so hold would preclude development and fix a city forever in its primitive condi