Mr. CHAIRMAN. We will determine that later. You may proceed, Mr. Whaley.

Mr. WHALEY. The object of section 46 is simply this. The landlord gets his rent in advance. He can shut off the heat, he can shut off the hot water, and the tenant can go without heat and hot water for 30 days. The only redress he has to-day under the rent act is that he can recover by filing a complaint with the commission the difference between what his rent would be without heat and what it would be with heat, which means a difference of a few dollars, five or six dollars, in addition to the discomfort, and inconvenience and maybe sickness occasioned during the 30 days by reason of a lack of heat, which is far greater than the small amount of recovery in the difference in his rent. The landlord gets his rent in advance. He is paid for this service, and the whole object of this section is to make him furnish what he has agreed to furnish and which he has been paid to furnish.

Senator JONES of Washington. Have you had very many instances where he failed to do that?

Mr. WHALEY. Yes, sir; last winter we were crowded with them. Senator JONES of Washington. Can you give a list of the instances?

Mr. WHALEY. I have not got them here with me, but I can furnish them to you.

Senator JONES of Washington. I think you ought to supply them. Mr. WHALEY. We have them at the commission.

Senator JONES of Washington. I think you ought to prepare such a list and make it a part of our record.

Mr. WHALEY. I will do so. Another thing is that he can cut off his elevator service. That is included in the service. That elevator can remain out of order for 30 days in a seven-story apartment house. There is no way of making him repair it. The question of bringing a damage suit for the out-of-order condition of the elevator and the lack of elevator service would be proportioned to the apartments for 30 days and would not amount to much, but that does not compensate some old lady coming down from the seventh floor and walking up again during those 30 days. All we want to say to the landlord is, "If you accept the money in advance and agree to render this service, you have got to render it; otherwise we are going to penalize you," and we suggest $25 a day as a penalty against him so as to make him fix it.

Another instance of it is like this. There may be a leak in the bathroom. That leak continues until after awhile the ceiling begins to fall. It is neglected for one or two or three months. I know of one instance where it was neglected for four months and the ceiling began to fall. The landlord paid no attention to it at all and the tenant's property was being damaged in the bathroom.

Senator JONES of Washington. Had notice been given to the landlord?

Mr. WHALEY. Yes, sir; repeatedly given to the landlord, and nothing was done. All we would say is "Where you have accepted the money in advance and you have agreed to render the service, you must either render it or we will penalize you for not rendering it." I do not think there is anything drastic in that section.

Senator JONES of Washington. I would like your list to include the landlords covered by those various incidents.

Mr. WHALEY. That last instance I gave about the bathroom is my own case in my own apartment.

Senator JONES of Washington. I do not know where that is nor do I know the name of the landlord.

Mr. WHALEY. I am just giving that as an illustration.

Senator JONES of Washington. Give the name of the landlord. Mr. WHALEY. H. L. Rust & Co. I have been there eight years in the apartment.

Section 47 provides that

The commission shall bring an action in the municipal court of the District of Columbia to recover the amount of the fine or fines so imposed, and the money collected therefrom shall be paid into the Treasury of the United States to the credit of the District of Columbia.

That section speaks for itself without further explanation. Section 49 provides that

Any owner of any rental property or apartment in the District of Columb'a, who, having knowledge that the commission has fixed and determined the fair and reasonable rent or compensation to be charged therefor, collects or demands from the tenant rent or compensation for the use or occupancy of any such rental property or apartment in an amount in excess of the rates previously fixed and determined by the commission, shall be guilty of a misdemeanor, shall be prosecuted in the same manner as prescribed for other misdemeanors in the District of Columbia, and shall, upon conviction, be punished by a fine not exceeding $1,000, or by imprisonment for not exceeding one year, or by both.

This provision is necessary because of the fact that in spite of the full knowledge of the owner of a determination by the Rent Commission reducing rentals on his property, he is knowingly and willfully violating the terms of the law and the provisions of the determination, and he continues to bleed the tenants both old and new.

We ran across cases, and it is very hard to find them-it is only by accident that we run across them-where the commission has fixed the rentals on an apartment and a vacancy occurs and the landlord goes in and rents that apartment at a higher rate, or he goes to the tenant and says. "Now, I am going to raise this rent. If you do not want it I am going to get you out by claiming that I want it for my own use, and that I am going to recondition it." To give you an illustration of that, a flagrant, vicious illustration of it, there was an ex-judge in this town who came before the commission and asked us to issue an order nunc pro tunc. We found out that the commission four years ago had reduced the rental on a piece of property owned by him from $18 to $14. It was occupied by a negro who had six or eight children and this ex-judge collected from that negro $18 a month, $4 a month more than fixed by the commission for the four years. We asked him if he had gotten a copy of the determination of the commission and he said yes, that he knew all about it, but he felt that the determination was wrong, that he ought to get $18 a month, and that he had collected the $4 more from the negro every month for the four years. I asked him if he had spent a dollar on the property since we made the determination and he said that he had not spent a five-cent piece on it.

The objection of this section is simply that the man who knows that the commission has fixed a rental on the property and undertakes to go in and charge more is guilty of a misdemeanor, just the same as if he had stolen the money, because he knows he is not entitled to it. If a negro steals a banana out of a cart down here on the street he is sent to Occoquan because he has taken the property of another man and they call it larceny. Yet this ex-judge was allowed to take additional rent from this tenant, knowing that he had no right to do it, and there is no way of punishing him.

Senator JONES of Washington. Have you had more than that one instance come to your attention?

Mr. WHALEY. I think there are several of them, Senator. I can look up the record we have. I do not see all of the cases down there. There are five of us who hear cases. I know that that is not the only one with me. There are two others with me that I can furnish

to you.

The only object of that section is where they know the determination has been fixed by the Commission, they shall not go in and take the man's money that does not belong to them. That is one of the sections that you see in the paper is called a vicious, drastic section. It simply says that a man shall not take something that does not belong to him.

Representative HAMMER. I am glad to observe you use the word shall" in connection with the prosecution.

Mr. WHALEY. You can make it "may" be prosecuted if you wish. Representative HAMMER. I was just wondering about it.

Mr. WHALEY. We have a very difficult time getting the district attorney to prosecute anyway. Mr. Hammer. We had a very difficult time in that case in the Princeton to get him to prosecute.

Senator JONES of Washington. Does he refuse to prosecute? Mr. WHALEY. We could not get him to put it before the grand jury, but we did get him to put it before the municipal court here. Representative STALKER. Is the district attorney a tenant? Mr. WHALEY. I do not know, sir.

Senator JONES of Washington. Does he refuse to prosecute? Mr. WHALEY. I think it was some several months after the case happened when we could not get it before the grand jury. Representative HAMMER. The court is congested very much. Senator JONES of Washington. I was wondering if he had a good

excuse.

Mr. WHALEY. The excuse was that there was some doubt in the law whether the prosecution would lie or not.

Senator JONES of Washington. The excuse was not that he had so much business or there was such a congestion in court that he could not do it?

Mr. WHALEY. I think he had some doubt whether he had a right to do it, but we convinced him that he had the right to do it. However, he would not put it before the grand jury, but put it before the municipal court. The woman came in and confessed guilt and paid a fine.

Section 51 provides that—

Any and all rights and remedies which may have heretofore accured or may hereafter accrue to any person or persons under the provisions of Title II of the food control and District of Columbia rents act as approved October

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?

1

Mr. WHALEY. 1924. On May 19, 1924, Mr. Justice Staffor granted a temporary injunction to Norment and Linkins and Bates Warren. Those cases are now on appeal as to whether he wo cola rect in granting the injunction. That injunction was grantes May 19. On June 1 we began to receive into the commission from tenants of increases in their rents. On June 4 the case of Pesc against Fink was instituted in the municipal court. That was a coat by Mrs. Peck to eject Mrs. Fink from premises on the ground thof the rent law was no longer operative. On June 30 Judge Mattingly, or the municipal court, denied the right of ejectment. On Septembe 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?