10

The Fight
in the Federal
Courts

Less than a week after the September laws were enacted, the New York Times reported that they would soon be challenged on constitutional grounds in federal court as well as state court. Bringing the challenge was Marcus Brown, a native of Poland who was born in 1854, came to the United States when he was nine, and lived in upstate New York until 1904, when he moved to New York City and went into the real estate business. By 1920 he owned both the Marcus Brown Construction Company, which built apartment houses on the Upper West Side, and the Marcus Brown Holding Company, which managed them. According to the Times, Joseph A. Seidman was going to file suit in the U.S. District Court for the Southern District of New York on behalf of the Marcus Brown Holding Company. He intended to ask the court to order a holdover tenant by the name of Arnold Pollak to move out of his apartment in the De Soto, a thirteen-story building at 215 West 91st Street that was assessed at nearly $1.2 million. He also intended to ask the court to enjoin District Attorney Edward Swann from charging the Marcus Brown Holding Company with violating chapter 951, which barred the landlord from depriving a tenant of heat or other essential services. As Seidman acknowledged, the suit was being filed not so much to oust Pollak and restrain Swann as to test the constitutionality of the emergency rent laws.1

For the most part the facts in what became known as Marcus Brown Holding Co. v. Pollak et al. were not in dispute. On July 10, 1928, Pollak signed a lease by which he agreed to rent a five-room apartment in the De Soto for $1,600 a year from the Marcus Brown Construction Company, which later leased and then sold the building to the Marcus Brown Holding Company. Under his agreement with the Marcus Brown Construction Company, Pollak was obliged to vacate the premises when the lease expired on September 30, 1920. With several months left on the lease, the Marcus Brown Holding Company notified Pollak it had a prospective tenant, one Minnie R. Griffen, who was willing to pay $2,300 a year for the apartment. When Pollak informed the company that he did not intend to stay after the lease expired, it rented the apartment to Griffen for three years starting October 1. But when October 1 came, Pollak refused to move out, which made it impossible for Griffen to move in. He took the position that under the newly enacted rent laws he had the right to stay in his apartment. He was willing to pay “a ‘reasonable’ increase,” reported the Times, but not an increase of more than 40 percent. Pollak also filed a complaint with District Attorney Swann, alleging that the Marcus Brown Holding Company had tried to force him to move out by shutting off the heat and other services, which was a misdemeanor under chapter 951. Swann advised the company that if it in any way interfered with Pollak's “quiet enjoyment and occupation of the premises,” he would press charges against its officers.2

Believing that the most promising way to force Pollak to move out, enable Griffen to move in, and avoid prosecution was to challenge the constitutionality of the emergency rent laws, Brown instructed Seidman to file suit in District Court. A hearing was held in the federal courthouse in Lower Manhattan in early October, but was adjourned because under the federal judicial code a suit to block the enforcement of a state law on constitutional grounds had to be heard by a panel of three judges, at least one of whom was a member of the U.S. Court of Appeals or the U.S. Supreme Court. Another hearing was then scheduled for late October. To comply with the code a special court of equity was empanelled. It consisted of Learned Hand, a member of the U.S. District Court for the Southern District of New York; Martin T. Manton, a member of the Court of Appeals for the Second Circuit, which was based in New York City; and Julian W. Mack, a member of the Court of Appeals for the Seventh Circuit, which was based in Chicago. As well as three eminent judges, the hearing brought together what the Times called “a brilliant array of lawyers.” Besides Seidman, they included David L. Podell, who represented Pollak, and John Caldwell Myers, who represented Swann. Also appearing were Deputy Attorney General Samuel A. Berger for Attorney General Charles D. Newton, Louis B. Marshall for the Real Estate Board, Francis M. Scott and George L. Ingraham for the Real Estate Investors of New York, Inc., and William D. Guthrie and Julius Henry Cohen for the Lockwood Committee.³

At the hearing, which was held on October 26, Seidman argued that the state legislature had exceeded its power by depriving his client of property without due process of law. Pointing out that there had been a glut in the housing market before World War I, he took issue with the claim that New York was now facing an emergency. “So long,” he argued, “as this legislation restrains the freedom of the citizen to make a valid and enforceable contract respecting property, which is not a public utility nor a private monopoly, it comes within the inhibition of the fifth and fourteenth amendments of the Constitution of the United States.” In response, Podell pointed out that “even after making [a] diligent search,” his client had been unable to find a suitable apartment and so was left with no alternative but to invoke the protection of the rent laws. He went on to say, “These laws may be said to be extraordinary, but the emergency which brings them forth and makes them necessary for the protection of the public is even more extraordinary.” The state legislature would have been “grossly negligent” if it had not adopted measures to deal with an emergency that was threatening to bring about “the destruction of the home” and thereby “undermine the basis of our national existence.” Under the circumstances the rent laws were a valid exercise of the police power, which did not so much deprive landlords of their property as limit the way in which they could use it.4

The District Court handed down its decision on November 13, less than three weeks after Seidman and Podell made their arguments. Written by Justice Hand, a member of one of the country's most eminent legal families, it was anticlimactic. The plaintiff's suit raised important constitutional issues, Hand wrote. But it had “a defect,” one that is “absolute as far as we can see.” Under federal law the District Court had no jurisdiction in cases where the amount at issue was less than $3,000, exclusive of interest and costs. And in this case it was. The amount at issue was the plaintiff's loss from October 1, 1920, when Griffen was supposed to move in, to November 1, 1922, when the rent laws were supposed to expire. Calculating the difference between what Griffen had been paying and what Pollak was willing to pay, Hand concluded that only about $1,500 was at stake. “In no aspect does it seem to us, therefore, that the cause is within our jurisdiction,” Hand concluded, “and the [defendant's] motion to dismiss must be granted.” As for the complaint against Swann's “prospective prosecutions,” it too was outside the court's jurisdiction.⁵

Although disappointed by Hand's ruling, the Marcus Brown Holding Company pressed ahead with its attack on the rent laws. What it needed was a case in which at least $3,000 was at stake. It had no trouble finding one. For several months the company had been embroiled in a dispute with Marcus Feldman and Benjamin and Frank Schwartz, who had rented a seven-room apartment in the De Soto for three years, starting October 1, 1917, for $2,100 a year. In early March the company informed the tenants that it had recently leased their apartment to one Benjamin Goldsmith for five years, effective October 1, 1920, for $3,800 a year. Feldman and the Schwartz brothers responded by retaining Samuel R. Gerstein, a Manhattan lawyer who advised Seidman in June that his clients were prepared to renew their lease “at a reasonable increase to be determined by the Mayor's Committee [on Rent Profiteering].” They had made “repeated attempts” to find another apartment, but without success; and if the company brought summary proceedings against them, they intended to ask the court for “a long stay” under the April laws. Seidman wrote back that the company expected the tenants to move out when their lease expired. He also informed Gerstein that several apartments were available on the Upper West Side at “a reasonable rental” of $2,600 to $3,500 a year. Gerstein replied that his clients had already looked at these apartments and found them unsuitable. By mid-July there was little doubt that Feldman and the Schwartz brothers would not be moving out when their lease expired—and after the September laws were enacted, there was none. When the tenants refused to move out on September 30, the Marcus Brown Holding Company had its test case.6

In the complaint that was filed with the District Court, Seidman argued that under the lease that Feldman and the Schwartz brothers had entered into with the Marcus Brown Construction Company in February 1917 they were obliged to move on September 30, 1920. And according to the laws in effect when the lease was signed, they “should be treated as a trespasser” for holding over “against the will of the owner.” The emergency rent laws, on which the tenants based their defense, deprived the landlord of property without due process of law, Seidman claimed. They left the De Soto “encumbered and unmarketable,” reducing its value by $100,000, which was more than enough to give the court jurisdiction. By impairing the obligations of the contract between the landlord and the tenants, the laws also violated article 1, section 10 of the Constitution. By making an “unreasonable and arbitrary discrimination between different persons and different classes of persons”—and by taking property from “one class of persons” and transferring it to “another class”—they also violated the equal protection clause. And by compelling the landlord to provide heat and other services “to persons trespassing upon his property,” which, said Seidman, constituted “involuntary servitude,” the rent laws even violated the Thirteenth Amendment. On these grounds he asked the court to order Feldman and the Schwartz brothers to vacate the premises, enjoin Swann from pressing charges against his client, and strike down all the September laws (and most of the April laws).⁷

With David Podell of counsel, Gerstein took issue with Seidman's claim that the emergency rent laws were unconstitutional. He also denied that more than $3,000 was at stake. Gerstein stressed that his clients had offered to renew their lease in March 1920—and had been “ready, able and willing at all times to pay a reasonable rental for the use and occupation of said premises, or any sum that may be determined by a court of competent jurisdiction.” But in what Gerstein decried as an attempt to obtain “an exorbitant, unjust, unreasonable and inequitable rental,” the landlord rejected the offer. He added that his clients had made “repeated efforts, from day to day, in and about the city,” to find another apartment, even one at an “exorbitant” rent. But in the case of the few apartments that were available, the landlords could not guarantee that a new tenant could move in on October 1 because they could not be sure that the old tenant would move out when his lease expired. Swann and his lawyer, Robert S. Johnstone, also contended that the amount at stake was less than $3,000. They insisted that the emergency rent laws—especially chapter 951, whose enforcement was Swann's responsibility—were a valid exercise of the police power. Pointing out that federal agencies had no authority to prevent state agencies from prosecuting “violations of a criminal statute [of New York],” Swann and Johnstone joined Gerstein in urging the District Court to dismiss Seidman's complaint.⁸

To hear Marcus Brown Holding Co. v. Feldman et al., another special court of equity was empanelled. Besides Hand, it consisted of Julius M. Mayer, a former New York State attorney general who had been appointed to the District Court for the Southern District of New York in 1912, and Charles B. Hough, a former District Court judge who had been appointed to the Court of Appeals for the Second Circuit in 1916. Based on a lecture Hough gave at Cornell in 1918, there was good reason to think that he would look with favor on the emergency rent laws. He did. So did his colleagues, who joined him in a decision that was handed down on December 15. Writing for the court, Hough first disposed of a few technical points—refusing, for example, to sever the case against Swann from the case against Feldman and the Schwartz brothers. He then held that the court had jurisdiction in the case at hand and that the issue before it was the constitutionality of the rent laws. Next he summarized the cardinal features of the laws. They were designed to enable tenants to remain in their homes until November 1, 1922, he wrote. They provided that the landlord “cannot select his tenants, but must accept what may be called statutory tenants,” who were required to pay a reasonable rent if they stayed and were free to move out if they chose. To prevent the landlords from “rendering their apartments uncomfortable for, if not uninhabitable by, the unwelcome statutory occupants,” the laws also made it a misdemeanor for the owner and everyone else involved in the management of the building to fail to furnish services to which the tenants were entitled.9

Hough acknowledged that the rent laws were unprecedented. “No legislation really like that at bar has been discovered in American history by the research of counsel,” he wrote. And the constitutional issues raised by the laws were not trivial. The plaintiff argues that the statutes impair contractual obligations. “This is plainly true,” wrote Hough. The plaintiff also insists that the statutes “put an end to liberty of contract and take property for a private use.” To a degree that is true too, Hough added. That in many cases “there is no liberty of contract under these statutes cannot be denied.” Nor can it be denied that property “is taken from the landlord for the use of the statutory tenant.” Under the laws the landlord may be “compelled to let his property be enjoyed by one whom he does not want” and who may pay less than what it might bring on the “open market.” But it was also “a wearisome truism that any legislative act is presumptively constitutional,” Hough pointed out. And “no matter how astonishing the legislation appears,” the courts had long held that “the wisdom, experience or sincerity of the Legislature is not open to judicial scrutiny.” Only the reason for the “legislative intention” is. And the reason was well known. By virtue of the cessation of residential construction during and after World War I, the demand for housing far exceeded the supply, leaving many tenants at the mercy of their landlords. When the landlords brought summary proceedings against 100,000 families in the fall of 1920, threatening to oust as many as half a million people “on the eve of winter,” the legislature had reason enough to give the tenants the option of remaining in their homes at a reasonable rent.¹⁰

Noting that nothing in the record showed that the market rent was different from a reasonable rent—or that the municipal court judges were calculating a reasonable rent in a way that was unconstitutional—Hough dismissed the argument that the emergency rent laws were a taking of property for private use. He also dismissed the argument that the laws violated the contract clause on the grounds that it “does not override the power of the state to establish regulations reasonably necessary to secure the health, comfort, or general welfare of the community.” Hough then turned to a more difficult question. Did the rent laws deny the landlord a constitutional right to choose his tenants? In other words, “Are these statutes an exercise of police power reasonably suitable for combating or lessening the evil proved, and therefore constitutional, although at other times and under other circumstances they might plainly be obnoxious to fundamental principles of constitutional government?” In a long line of decisions that went back to Munn v. Illinois, he wrote that the courts had held that the police power extended not only to “property devoted to a public use,” but also to “property affected with a public use.” In the process they upheld statutes that regulated grain elevators, fire insurance, and even trading stamps. Some people believed that “any business is affected with a public interest as soon as the electorate becomes sufficiently interested in it to pass a regulatory statute,” Hough said. Although not inclined “to go so far,” he held that “the business of renting out living space is quite as suitable for statutory regulation, and as much affected with a public interest, as [fire] insurance and trading stamps.” Hence the rent laws did not deprive the plaintiff of property without due process of law.11

Hough then dismissed the plaintiff's one remaining point—that the emergency rent laws violated the equal protection clause because they regulated only “one class of landlords” and protected only “one class of tenants.” There was no scarcity of property “other than dwellings,” he pointed out; and “the consequences of a scramble for stores and offices are not of the same deteriorating social character as is one for homes.” Moreover new buildings, which were exempt from the emergency rent laws, cost much more to erect than old ones. If the laws applied to them, they would in all likelihood discourage residential construction and “prevent exactly what was necessary to relieve the [housing] shortage,” which had prompted the state legislature to act in the first place. Having rejected all the plaintiff's arguments, Hough ruled that the emergency rent laws were constitutional. But in a statement that foreshadowed Justice Frederick E. Crane's concurring opinion in Guttag v. Shatzkin, which was written about three months later, he added that the court was speaking only “in the present tense.” It “does not necessarily follow that because they [the statutes] violated no fundamental law in September or December, 1920, they will never so violate. Should it be shown thereafter that the reason for the laws had in fact passed, questions may arise not now before us, and as to which we do not wish to seem to foreclose discussion.”¹²

There was little doubt that the Marcus Brown Holding Company would appeal Hough's ruling. And under a provision of the federal judicial code that dealt with constitutional issues, the company was able to bypass the Court of Appeals for the Second Circuit and take Brown v. Feldman directly to the U.S. Supreme Court. Under ordinary circumstances the high court might have been reluctant to review a unanimous opinion of the District Court for the Southern District of New York. Even if it agreed to hear the case, the court would probably have needed a year or so to reach a decision. But circumstances were far from ordinary. During and after World War I, elected officials had enacted laws to curb rent profiteering in more than half a dozen states and more than a dozen cities. And in New Jersey, Wisconsin, and a few other places these laws had been challenged on constitutional grounds, more often than not successfully. But nowhere outside of New York was the challenge as momentous as in Washington, D.C., where the District of Columbia Court of Appeals reached a decision in June 1920 that put it squarely at odds with the District Court for the Southern District of New York. This decision was also appealed to the U.S. Supreme Court a few months later. With two of the nation's foremost courts at odds over the constitutionality of rent control, it was highly likely that the high court would hear Brown v. Feldman—and hear it sooner rather than later.13

The nation's capital, a city of roughly 364,000 in the year before the United States entered World War I, had been hit hard by the wartime housing shortage. Indeed, wrote the District of Columbia Rent Commission, the housing shortage was more acute there than anywhere else, “with the possible exception of the city of New York.” Residential construction, which had been booming in the prewar years, came to a standstill in 1917 and did not resume after the war was over. In the meantime—a time, said one congressman, when Washington seemed “not only the center of the United States, but, indeed, the pivotal point of the world”—tens of thousands of newcomers, many of them young women in search of well-paying jobs in war-related activities, poured into the District. As a result its population soared to about 421,000 by July 1918, an increase of more than 15 percent in two years. By early 1918 the demand for housing far exceeded the supply. Rents, which had been falling before the war, started to rise. Although they rose less in Washington than in most other cities, many tenants charged that the landlords were engaging in what the Senate Committee on the District of Columbia called “merciless profiteering.” Spokesmen for the real estate industry denied the charges, claiming that property owners were raising rents in order to cover rising costs. Despite these denials, many Washingtonians believed that the soaring rents were forcing much of the District's workforce to cram into small apartments and furnished rooms, thereby threatening the well-being of the community and even undermining the efficacy of the war effort.¹⁴

Although Washington, D.C., was in theory governed by a three-member board of commissioners appointed by the president, it was in practice ruled by Congress, which was under mounting pressure to do something about rent profiteering in the District. Late in January 1918 Representative Ben Johnson, a Kentucky Democrat, introduced a bill to solve the problem by imposing an excess profits tax on landlords. The bill passed the House in early March. But it made little headway in the Senate, which favored a bill sponsored by Atlee Pomerene, an Ohio Democrat. The Johnson and Pomerene bills were “radically different,” reported the Washington Post. And when it became clear that the House and Senate would be unable to reach an agreement, Senator Willard Saulsbury, a Delaware Democrat, introduced a resolution to protect the many District tenants who were about to be evicted. The revised version of what became known as the Saulsbury Resolution provided that until ninety days after the United States and Germany signed a peace treaty no tenant could be ousted from his home except under a few exceptional circumstances as long as he paid the rent stipulated in the lease. Some congressmen attacked the resolution as impractical, unconstitutional, and un-American. “I defy anyone in this Chamber to point to anything that has been done by that aggregation of insanity, imbecility and anarchy known as the Russian Soviet that goes further than this joint resolution,” said Senator James A. Reed, a Missouri Democrat. But most congressmen believed that something had to be done to curb rent profiteering in the District and that the Saulsbury Resolution was better than nothing. It was adopted by Congress and signed into law by President Woodrow Wilson in late May.15

Led by Charles W. Fairfax, president of the Real Estate Brokers Association, Washington's landlords had fought hard to block the Saulsbury Resolution—and when Congress adopted it, they continued the fight in court. The initial results were mixed. The District of Columbia Supreme Court held that the resolution was constitutional in one case and unconstitutional in another. The issue was not resolved until December 1, 1919, when the District of Columbia Court of Appeals handed down a decision in Willson v. McDonnell. The case got under way in July, when Curtis C. McDonnell filed suit against Hannah T. Willson, a tenant who refused to move out after her lease expired. In her defense Willson invoked the Saulsbury Resolution. When the D.C. Supreme Court ruled in favor of McDonnell, she went to the D.C. Court of Appeals. Writing for himself and Josiah Van Orsdel, Charles H. Robb held that the capital's residents were entitled to the same constitutional protections as other Americans: not even a declaration of war superseded the Constitution. Robb went on to note that there was no need for the court to determine whether renting space was a business “affected with a public interest” and subject to regulation by Congress under the police power. For in the case at hand the regulation, which took private property without compensation, was not reasonable. And since it treated property under lease one way and property not under lease another way, it was not “uniform in its operation.” Hence, Robb concluded, the court had no choice but to find the Saulsbury Resolution unconstitutional and affirm the lower court's judgment. Constantine J. Smyth, who had been appointed chief justice in 1917, issued a brief dissent, in which he urged his colleagues to reconsider. They refused. And in October 1921 the U.S. Supreme Court denied Willson's appeal.¹⁶

By the time the Court of Appeals issued its ruling, the Saulsbury Resolution was defunct. As Representative Thomas L. Rubey, a Missouri Democrat, put it, the resolution was a “makeshift” that was designed to prevent evictions in the District while Congress tried to figure out how to curb rent profiteering. And not long after it was adopted, the legislators started looking for another solution to the housing problem. Taking the lead was Senator A. Heisler Ball, a Delaware Republican and chair of a subcommittee of the Senate Committee on the District of Columbia, who launched an investigation of the high cost of living in the capital. Based on the subcommittee's findings that apartments were hard to find at any price, that rents were rising by as much as 50 percent, and that overcrowding was becoming widespread, Ball introduced a far-ranging bill that imposed rent control in the District of Columbia. The bill generated a heated debate. Opponents charged that it would do nothing to relieve congestion, that it would be found unconstitutional, and even that it smacked of socialism. Pointing out that this “vicious legislation” denied the landlord the right not only to set his rents, but also to choose his tenants, Representative James T. Begg, an Ohio Republican, said, “Why, the wildest-eyed Bolshevist that ever spoke from a soap box in the city of New York never advocated a wilder doctrine than this.” But over the objections of Begg and others, Congress enacted what was commonly referred to as the Ball Rent Act in October.17

Unlike the Saulsbury Resolution, the Ball Rent Act was an attempt not only to prevent evictions, but also to regulate rents. Although many other countries had already imposed rent control, it was the first such attempt in the United States. And more than New York's emergency rent laws, the first batch of which were enacted six months later, it served as the model for other states and cities that were trying to curb rent profiteering. The act established a District of Columbia Rent Commission, which consisted of three presidential appointees, to deal with landlord-tenant disputes, either after a complaint or on its own initiative. It was authorized to prescribe standard leases, extend tenancies beyond their expiration date, and, most important of all, set fair and reasonable rates for rental property. Its rulings could only be appealed to the District of Columbia Court of Appeals, where they could only be set aside or modified for errors of law. The act also prevented landlords from ousting tenants except in cases where the tenants failed to pay the rent or violated other terms of the lease or where the landlords intended to demolish the old building and construct a new rental property on the site. The landlord could also sue to recover the premises if he and/or his family wanted to occupy it. If, however, he cut off services to which the tenants were entitled, he was subject to a fine of up to $1,000, imprisonment for up to one year, or both. Like the New York rent laws, the Ball Rent Act was deemed a temporary response to the postwar emergency and was therefore set to expire in two years. But unlike the New York laws, it applied to all rental property, commercial as well as residential.¹⁸

Whether the Ball Rent Act would survive judicial scrutiny was far from clear, especially in the aftermath of Willson v. McDonnell. Henry E. Davis, Willson's lawyer, predicted that the act would fare no better than the Saulsbury Resolution when it reached the District of Columbia Court of Appeals. Senator Ball was more optimistic. So was Henry H. Glassie, who argued that the two measures were based on such “an entirely different principle” that the ruling in Willson v. McDonnell would have no bearing on the validity of the Ball Rent Act. The issue came to a head in the spring of 1920, when a few landlords filed suit challenging the constitutionality of the act. By far the most important of them pitted Louis Hirsh against Julius Block. In mid-November 1919 Hirsh bought a three-story building at 919 F Street, Northwest that he intended to use as a retail store. A month later he notified Block, a tenant who ran a shop of his own out of the cellar and first floor, that he would have to move out when his three-year lease expired on December 31. Citing a provision of the Ball Rent Act that required landlords to give thirty days’ notice, Block refused. In early January 1920 Hirsh asked the District of Columbia Municipal Court to oust him. When Judge Robert H. Terrell, the capital's first African American judge, ruled against him, Hirsh appealed to the D.C. Supreme Court. In late March what the Washington Post called “an imposing array of counsel”—which included William G. Johnson, who had been practicing law in Washington for twenty-five years, and Julius I. Peyser, who would one day serve as president of the District of Columbia Bar Association—appeared before Justice Frederick L. Siddons. When Siddons, a former member of the District's Board of Commissioners, affirmed the trial court's decision and held the Rent Act constitutional, Hirsh took his case to the District of Columbia Court of Appeals.19

The case was heard by Justices Smyth, Robb, and Van Orsdel in early May. On behalf of Hirsh, Johnson and his associates argued that the Ball Rent Act did not differ materially from the Saulsbury Resolution—which they reminded the judges had been found unconstitutional in Willson v. McDonnell. Like the resolution, the act transferred property to the tenant without the consent of the landlord, which had never been held “a constitutional exercise of the legislative power.” Johnson and his associates also gave short shrift to Congress's declaration that the Ball Rent Act was a necessary response to a wartime emergency. “War carries many and grievous afflictions,” they pointed out, “but among them is not the abrogation, temporary or permanent, of the constitutional limitations upon the power of Congress.” On behalf of Block, Peyser and his colleagues—among them Jesse C. Adkins, who would precede Peyser as president of the D.C. Bar Association—responded that the plaintiff's arguments against the constitutionality of the Ball Rent Act were baseless. The act was not an unlawful “exercise of the war and police powers of Congress.” It did not impair the plaintiff's vested rights. Nor did it deprive him of property without due process of law or take it “for private use” or “without just compensation.”²⁰

A month later a divided Court of Appeals issued its ruling, reversing Judge Siddons's decision and remanding the case “for further proceedings not inconsistent with this opinion.” Writing for himself and Robb, Van Orsdel began by saying that the only issue before the court was the constitutionality of the Ball Rent Act. If it was valid, the defendant had a “complete” defense, because the plaintiff did not give the thirty days’ notice required by the act. (Hitherto the law allowed a District of Columbia landlord to recover his property without giving any notice as soon as the lease expired.) But if the act was not valid, the defendant had no defense at all. Citing Willson v. McDonnell, Van Orsdel wrote that the residents of the District could not be denied “the constitutional guarantees of life, liberty, and property.” Nor could they be deprived of their property “except by due process of law.” Under the Ball Rent Act, however, the tenant could remain on the premises at the old rent even after the expiration of his lease, which was a valid contract when the act was passed. If so inclined, he could even ask the District of Columbia Rent Commission to reduce the rent. Also under the act the landlord could not ask the court to review the Rent Commission's decision on the basis of the facts. Nor could he sell the property “except subject to and burden by the option of the tenant.” Thus, said Van Orsdel, it would seem “that if the property clauses of the Constitution are [much] longer to have any restraining power over Congress, the case here presented is one within the inhibition of the Fifth Amendment.”21

Nor could the Ball Rent Act be justified as a taking of private property for public use, he went on. Both the plaintiff and defendant are private citizens, “engaged in private business.” And a private business “cannot be made public, or impressed with a public interest, merely by legislative fiat.” Hence the case at hand was not controlled by Munn v. Illinois and other Supreme Court decisions that had upheld the power of the legislature to regulate businesses devoted to a public use. Moreover, in none of the cases where the court had upheld the right to regulate rates had it sustained the power “to continue existing contracts in force” after they expired or to require the owners to remain in business against their will. Yet under the Ball Rent Act, wrote Van Orsdel, “the landlord is not only prevented from going out of the renting business, but is required to continue it upon the terms fixed by the act.” Congress has the power to take private property for public use, provided it compensates the owner. But “it has no power, under any circumstances, to take private property for a private use,” much less to “to take the private property of one individual and turn it over to the use of another private individual.” The declaration of an emergency provides a reason for the Ball Rent Act, he went on. But it “adds nothing to the constitutional power of Congress.” Nor does it “make an act constitutional which otherwise would be unconstitutional.” Not least of all, it does not empower Congress to enact a law that made the D.C. Rent Commission's findings of fact “binding and conclusive” and thereby deprives tenants and landlords of the right of trial by jury, which was guaranteed by the Seventh Amendment.²²

Chief Justice Smyth, who had disagreed with his colleagues in Willson v. McDonnell, also disagreed with them in Hirsh v. Block. In a dissent that was longer than the majority opinion, he argued that Hirsh had no right to challenge the constitutionality of the Ball Rent Act. The act gave Hirsh “a direct and effective” way to recover his property. All he had to do was apply to the D.C. Rent Commission, which was required to award him possession as long as he could prove he was a bona fide purchaser who intended to occupy the premises. If Block still refused to move out, Hirsh could give thirty days’ notice and then ask the D.C. Municipal Court to oust him. Smyth also took issue with his colleagues on two other matters. According to Van Orsdel, the Ball Rent Act deprived Hirsh of “the unrestricted right” to sell or rent his property “without any claim or charge upon it” and to rent it “without let or hindrance from Block.” But, argued Smyth, Hirsh did not petition the court for the right to sell or rent the property, only to use it for his own purposes. “It will be time enough to adjudicate the other rights when they properly arise.” Also according to Van Orsdel, the Ball Rent Act deprived Hirsh of the right to trial by jury. “But,” said Smyth, “he did not ask for a jury trial.” To the contrary, he filed a motion for a judgment “without the intervention of a jury.” Why, Smyth asked, should the court “raise a question not presented in the record in order that [it] may assail an act of Congress, especially in view of the rule, universally held, that it is the duty of all courts to sustain a statute if it can be done”?23

Suppose Hirsh had the right to challenge the constitutionality of the Ball Rent Act, Smyth continued. Would it “stand the test?” Congress, he wrote, has the same police power in the District as the legislatures have in the states. And it may exercise that power over property “clothed with a public interest.” But “who is to decide when property is so clothed?” he asked. “Manifestly this must be done in the first instance by Congress.” And Congress has determined that rental property in the District is “clothed with a public interest,” a determination that “is entitled to great respect by the courts.” “What, then, is the test by which the court is to ascertain whether this determination by Congress is sound?” The answer is found in Munn v. Illinois, in which the U.S. Supreme Court held that if the facts that justified the statutes could exist, “they must be presumed to exist.” It was up to Hirsh to prove otherwise. And he had not done so. In the midst of an acute housing shortage that not only endangered public health, but also prevented government employees from doing their jobs, Smyth could only conclude that the business of renting property in the District of Columbia “is affected with a public interest” and thus subject to regulation under the police power. This does not mean that Congress can deprive an owner of property without due process of law or deny him “a reasonable compensation for its use.” But the Ball Rent Act does “not impinge upon any constitutional right which Hirsh is entitled to assert here.” “If in a proper action by him it should appear that the enforcement of any of the provisions of the act would deprive him of such a right, the court will be open for his protection.” But until then the judgment of the District of Columbia Supreme Court should be affirmed.²⁴

There was no doubt that Block's lawyers would ask the U.S. Supreme Court to review the D.C. Court of Appeals decision. With the D.C. Rent Commission in limbo and no end of litigation in sight, the sooner the high court ruled the better, wrote the Washington Post. But in their attempt to bring the case before the Supreme Court, Block's lawyers ran into one obstacle after another. In late June the Court of Appeals denied Peyser's application for a writ of error, which, if granted, would have sent the case to the high court. As the Post put it, the Court of Appeals was “washing its hands” of the Ball Rent Act and the D.C. Rent Commission. Along with Adkins, Peyser then applied to the Supreme Court for a writ of error in early July. But Chief Justice Edward D. White refused to grant it on the grounds that the Court of Appeals decision was not final. The court had not given Hirsh “a judgment for possession.” It had only remanded the case to the D.C. Supreme Court. Although the Court of Appeals had left the D.C. Supreme Court no alternative but to order Block to vacate the premises, it had not yet done so. Shortly thereafter the case went back to the D.C. Supreme Court where it was heard by Walter I. McCoy. Under pressure from both parties to rule as quickly as possible, McCoy entered a judgment for Hirsh in late July. The Court of Appeals affirmed the ruling in mid-November, again by a two-to-one vote. A few days later, more than five months after it handed down Hirsh v. Block, the court granted a writ of error and sent the case to the U.S. Supreme Court.25

Not long after, the high court agreed to hear what had been Hirsh v. Block but, now that Block was the appellant, would henceforth be known as Block v. Hirsh. The case was put on the calendar for the October term. In the meantime the District Court for the Southern District of New York ruled in favor of Feldman and the Schwartz brothers. And when the Marcus Brown Holding Company asked for a review of Justice Hough's decision, the high court agreed to hear Brown v. Feldman as well. It too was set for the October term, 1920, though it was much lower on the calendar than Block v. Hirsh. It is hard to see how the U.S. Supreme Court could have declined to hear these cases. Rent control was a momentous issue in the immediate aftermath of World War I. And if the high court had let both Block v. Hirsh and Brown v. Feldman stand, it would have been unconstitutional in Washington, D.C., but constitutional in New York, not to mention Buffalo and Rochester. As the justices were well aware, their decisions would have a profound impact on more than just the nation's capital and its largest city. If the court held the Ball Rent Act and the emergency rent laws unconstitutional, it would bring to a halt the ongoing efforts to impose rent control. If instead it found the laws constitutional, subsequent rent control measures would only have to pass muster in the state appellate courts, which would have been strongly influenced by the Supreme Court's position.²⁶

Events took an unexpected turn on February 28, 1921, a few days before Block v. Hirsh was to be heard. Joseph A. Seidman, counsel for the Marcus Brown Holding Company, asked the high court to advance Brown v. Feldman from the bottom of the calendar and hear it together with Block v. Hirsh. The court had good reason to deny Seidman's request. The federal and state laws differed in many ways. Whereas the Ball Rent Act applied to all rental property, commercial as well as residential and new as well as old, the emergency rent laws exempted commercial property and new buildings. Whereas the Washington, D.C., law set up an administrative agency to determine reasonable rents and oversee summary proceedings, the New York State statutes left the implementation of rent control up to the municipal courts. Brown v. Feldman also raised constitutional issues that were not raised in Block v. Hirsh—and vice versa. To give a couple of examples, Seidman challenged chapter 951 on the grounds that it compelled “one man to render involuntary servitude to another.” And William G. Johnson and Hirsh's other lawyers attacked the Ball Rent Act on the grounds that it deprived the District's residents of the right to trial by jury.²⁷

But the Supreme Court had even better reasons to grant Seidman's request. For all their differences, the Ball Rent Act and the emergency rent laws had much in common. Both were enacted to deal with the postwar housing shortage. Both were designed to protect vulnerable tenants against profiteering landlords. Except under certain circumstances, both prevented the landlords from ousting the tenants when their leases expired, provided they were willing to pay a reasonable rent. Both barred the landlords from cutting off services to which the tenants were entitled. And among other things, both were set to expire in two years. For the most part, moreover, Block v. Hirsh and Brown v. Feldman raised many of the same constitutional issues. Among the most important were whether the laws deprived landlords of property without due process of law, whether they took private property for private use, whether they denied landlords the equal protection of the law, and whether they impaired contractual obligations. In view of these common features, the high court granted Seidman's request and advanced Brown v. Feldman to the top of the calendar. On March 3 it held a hearing at which Adkins argued on behalf of Block, Johnson on behalf of Hirsh, and Glassie, special assistant to the U.S. Attorney General, as amicus curiae on behalf of the United States. And on March 3 and 7 Guthrie spoke for the attorney general of New York, Seidman for the Marcus Brown Holding Company, and Podell for Feldman and the Schwartz brothers.28

The oral arguments are no longer available, which is unfortunate because Guthrie was at the peak of his power and the other lawyers, if not of his stature, were first-rate advocates. (Like Marshall, his opposing counsel in Levy Leasing Co. v. Siegel, Guthrie addressed the justices as if he were their mentor, wrote Julius Henry Cohen.) But the written briefs, which were submitted in late February and early March, have survived. Full of historical analogies as well as legal citations, they were learned, often brilliant, and sometimes ingenious. Most were also very long. Block's brief, which was filed by Peyser, Adkins, and their associates, ran sixty-one pages. Hirsh's brief, which was submitted by Johnson and his colleagues, was almost as long, but less than half as long as Glassie's brief, which was filed on behalf of the United States. Even more voluminous were the briefs that were submitted in Brown v. Feldman. Seidman filed a 129-page brief on behalf of the Marcus Brown Holding Company, and Podell, Gerstein, and their associates a 73-page brief on behalf of Feldman and the Schwartz brothers. With Lewis M. Isaacs, Marshall submitted an amici curiae brief that was virtually the same as the one they had recently filed in the New York Court of Appeals on behalf of the Levy Leasing Company. It ran 112 pages. Last but by no means least, Guthrie and Cohen submitted a brief on behalf of the attorney general and the Lockwood Committee. A revised version of the one they had filed on behalf of Judge Edward B. La Fetra in the New York Supreme Court, and later on behalf of La Fetra, Hyman Shatzkin, and others in the Appellate Division and the Court of Appeals, it was 150 pages long.²⁹

Although these briefs ran more than seven hundred pages in total, they raised few issues that had not been raised in the lower courts. The Ball Rent Act and the emergency rent laws were attacked on the grounds that they violated fundamental constitutional provisions. And they were defended as a valid exercise of the police power (and, in the case of Block v. Hirsh, of the war power as well). The briefs also raised a host of questions. Was there a public emergency arising out of World War I, as Congress and the New York State legislature had determined? Or was the so-called emergency a figment of popular imagination, a product of postwar hysteria? If there was an emergency, how serious was it? Were the measures enacted to cope with it appropriate? Was the business of renting space affected with the public interest? Or was it a strictly private matter in which no one other than the landlord and the tenant was involved? Did the Ball Rent Act and the emergency rent laws take property from its owner, which was only justified if it was taken for a public purpose and he was compensated for his loss? Or did the laws do nothing but stop the landlord from ousting his tenants for two years and in the meantime prevent him from charging more than a reasonable rent?30

In drafting the briefs the lawyers adhered to the customary practice of spelling out the facts, summarizing the laws at issue, and then drawing conclusions based on legal precedents and other evidence. But on occasion they also catered to prejudice and engaged in hyperbole. After pointing out that the emergency rent laws were “more drastic and revolutionary than any law ever enacted in any state of the Union,” Seidman wrote, “our distinguished and learned opponents [meaning Guthrie and Cohen] ask that we go back to ancient history and adopt the principles of the Romans governing the rights of serfs and tenants who were mere slaves; that we take into consideration the Irish Land Bills affecting tenantry, and that we accept as our own laws the acts of the British Parliament enacted during the World War.” They might as well have “asked us to adopt as laws the decrees of Soviet Russia.” Marshall and Isaacs, who also stressed the revolutionary character of the New York laws, wrote that if the legislature may say to a landlord “that he shall not be permitted to enter into a contract for the leasing of his property except on condition that the contract shall run the gauntlet of the courts and juries and that the amount that he shall be permitted to charge shall eventually be fixed by a court or jury, then it is difficult to understand why the Legislature may not say to the farmer or to the grocer that, irrespective of the contract price at which he may sell to a customer milk, potatoes, wheat, or any other of his products, the purchaser may contest the reasonableness of the price and be limited in his payment to the sum that a court or jury may eventually determine to be the just and reasonable price.” Such legislation is a “vehicle of oppression,” they said, “and the precedent it would establish, if held to be constitutional, would be appalling.”³¹

In an otherwise temperate brief Peyser, Adkins, and their associates sharply criticized the majority opinion in Hirsh v. Block, saying it held that a landlord “has the absolute, uncontrollable right to oust the tenant instantly at the expiration of his time.”

He may [they wrote] keep the property idle or rent it to whomsoever he pleases at whatever oppressive rent he may fix. No economic or other condition can justify the slightest modification of these rights. There may be war, the tenant may be drafted and be abroad fighting for the landlord, the tenant's family may all be sick of influenza and accommodations in hospitals or other shelter impossible. Under these circumstances the landlord may say to the stricken wife and mother, “Pay me a rent ten times greater than the old [rent] or I will put you and your children in the street.” The legislature is so impotent that it cannot fix the return which this landlord may receive from any tenant of this property; it cannot say that if this property continues to be rented the present tenant shall have the first opportunity [to rent it]; it cannot stay evictions until the soldier has opportunity to return; and, finally, it cannot even require the landlord to give a month's notice of his intention to evict his tenant.

The Court of Appeals ruling notwithstanding, “We do not believe that government is powerless in such an emergency,” Peyser, Adkins, and their associates declared. Even more caustic was the response of Johnson and his colleagues to the argument that the Ball Rent Act was valid as a war measure. By signing the lease, they said, Block had agreed that he would not use or sublet the premises for anything other than a store for “ladies wear.” And it was hard to imagine “that the successful prosecution of the war against the Imperial German Government required that Mr. Block should continue to sell ‘ladies’ wear’ at 919 F Street.”32

Despite the Court of Appeals decision, Louis Brownlow and Charles W. Kutz, two of the District of Columbia's three commissioners, were confident that the high court would uphold the Ball Rent Act. So was James F. Oyster, former chairman of the D.C. Rent Commission. But according to the Washington Post, many of the District's lawyers expected the high court to find the Ball Rent Act unconstitutional on the grounds that it impaired contractual obligations. Julius Henry Cohen recalled that when word spread that Guthrie had agreed to defend the emergency rent laws, many friends approached him at the Downtown Club in Lower Manhattan and “intimated politely that he must be rapidly approaching senility.” “They all predicted a good sound thrashing for us in the United States Supreme Court.” Still Cohen was cautiously optimistic. So were many other New Yorkers. In view of the recent decisions by the state and federal courts in New York City, “there was little expectation of a reversal in Washington,” wrote the World.³³

If the court's prior decisions were a reliable indicator, the Ball Rent Act stood a good chance of passing muster. So did the emergency rent laws. Between 1887 and 1911, wrote Charles Warren, a prominent Boston attorney and legal scholar, the high court had ruled in favor of state laws that were designed to promote “social justice” in all but a handful of cases, of which Lochner v. New York was perhaps the best known. Far from reactionary, it had “been steady and consistent in upholding all State legislation of a progressive type.” Nor did it change much during and immediately after World War I, other legal scholars pointed out. The justices had shown a high degree of “judicial self-abnegation,” a strong inclination to defer to the legislature on matters of social and economic policy. And they had repeatedly held that “businesses which are today purely private may tomorrow, through a now inconceivable change of conditions, enter the ‘public interest’ class.” Charles B. Hough, who wrote the District Court's opinion in Brown v. Feldman, made a similar point in a lecture at Cornell in 1918. Due process of law is no longer much of a constraint on the police power, he said. Neither is freedom of contract. Given the deep-seated belief that every American “can do what he likes, where and when he pleases,” it “dies very hard.” But “it is dying.” And when invoked today under the due process clause, the courts “are doing little more than easing the patient's later days.”34

But as an indicator of how the Supreme Court would rule in Block v. Hirsh and Brown v. Feldman, its prior decisions were not too reliable. The justices were often so evenly divided that if one or two had voted the other way the outcome would have been completely different in many cases. One example was German Alliance Insurance Company v. Lewis, which had been handed down in April 1914. In this case the high court voted five to three to affirm a decision of the Circuit Court for the District of Kansas and uphold a Kansas statute that empowered the state's Superintendent of Insurance to regulate fire insurance rates. Another example was Wilson v. New, which was handed down in March 1917. In this case the court voted five to four to reverse a ruling of the District Court for the Western District of Missouri and uphold the Adamson Act, by which Congress imposed an eight-hour day, with no corresponding reduction in wages, for railroad workers engaged in interstate commerce. Indicative of how evenly the justices were divided was Hammer v. Dagenhart, which was handed down in June 1918. In another five-to-four decision, the court affirmed a decision of the District Court for the Western District of North Carolina and ruled that the Keating-Owen Act, which was designed to curtail child labor, was unconstitutional. During the early 1920s the court struck down so many laws by a five-to-four vote, usually on the grounds that they violated the due process clause, that Senator William E. Borah of Idaho introduced a bill that would have barred it from holding a law unconstitutional unless seven justices concurred.³⁵

Moreover, Block v. Hirsh and Brown v. Feldman were much more draconian than most of the other measures that had been heard by the court. James T. Begg's claim that the Ball Rent Act was form of Bolshevism was open to debate. So was Louis Marshall's argument that the emergency rent laws were nothing short of revolutionary. What was not open to debate was that these measures were drastic, even radical—that, in the words of Samuel Untermyer, chief counsel to the Lockwood Committee, they went to “extreme lengths.” They limited what the landlord could charge for the use of his property and even suspended his right to recover it after the lease expired. If this right could be suspended for two years, opponents of these laws pointed out, they could presumably be suspended indefinitely. And as an Alabama lawyer told the Maryland State Bar Association, the Ball Rent Act and the emergency rent laws dealt not with grain elevators and insurance companies, much less with monopolies and public utilities, but with “strictly private buildings.”³⁶

Of the nine justices, it was highly likely that three would vote to uphold the D.C. and New York rent laws. The most senior of these “liberal judges,” as Julius Henry Cohen referred to them, was Oliver Wendell Holmes, Jr. A Boston Brahmin, Holmes had sat on the Massachusetts Supreme Judicial Court for twenty years before being appointed to the U.S. Supreme Court by Theodore Roosevelt in 1902. A brilliant justice whom Judge Hough called “the Voltaire of our bench,” he was regarded by many as the greatest jurist since John Marshall and Joseph Story. A strong believer in judicial restraint, he was inclined, writes one legal historian, “to uphold any reasonable social legislation enacted by a representative body.” As brilliant as Holmes was Louis D. Brandeis, a native of Louisville, Kentucky, and a corporate lawyer who had become “the people's advocate,” in the words of Woodrow Wilson, who appointed him to the high court in 1916. If Holmes was “an enlightened skeptic,” Brandeis, writes his biographer, was “a militant crusader,” for whom the principal objective of jurisprudence was social justice. Like Holmes, he believed “the judiciary had no business second-guessing the legislature, nor striking down laws simply because the judges did not agree with their underlying philosophy.” Also appointed by Wilson to the high court in 1916 was John M. Clarke of Ohio, another corporate lawyer turned progressive reformer who almost invariably sided with Brandeis. According to his biographer, Clarke viewed the Constitution not as “a straight-jacket by which the past is to be imposed on the present,” but “as a working charter for a living government, which has proved in experience perfectly adaptable to conditions of life and society of which its framers never dreamed.”37

It was also highly likely that three of the justices would vote to strike down the rent laws. One was James C. McReynolds, a native of rural Kentucky and attorney general in the first Wilson administration who was appointed to the high court in 1914. A major disappointment to Wilson, McReynolds, writes one legal historian, turned out to be a “fanatically conservative” justice who invariably sided with the majority in cases where state regulatory measures were held to have run afoul of the due process clause. A man's liberty and property, he wrote, should not be “subordinate to whims or caprices or fanciful ideas of those who happen for the day to constitute the legislative majority.” Another staunch conservative—and, in the words of one legal scholar, “the foremost intellectual conservative on the court”—was Willis Van Devanter of Wyoming. A corporate lawyer, Devanter was a Republican stalwart who served as assistant attorney general in the Department of the Interior under President William McKinley. In 1903 Roosevelt appointed him to the Court of Appeals for the Eighth Circuit, and seven years later William Howard Taft picked him to fill a vacancy on the U.S. Supreme Court, where he took a very narrow view of the police power. Much less rigid than McReynolds and Van Devanter was Edward D. White. A member of the Louisiana gentry and a Confederate Army veteran to boot, White had been appointed to the high court by Grover Cleveland in 1894 and named chief justice by Taft in 1910, the first associate justice to be so elevated. More moderate than most strict laissez-faire conservatives, he sided with the minority in Lochner v. New York, but wrote the majority opinion in Wilson v. New.³⁸

How the three other justices would vote on the rent laws was anyone's guess. The most senior of them was Joseph McKenna. A former California congressman and circuit court judge, he had served as attorney general under McKinley, who appointed him to the high court in 1897. The author of the majority opinion in the German Alliance case—which, wrote one lawyer, “broadened practically without limit the field of price regulation”—he took an expansive view of the police power during much of his time on the bench. But in the aftermath of World War I, writes his biographer, he abandoned many of his long-held principles “in his haste to meet the approaching threat of socialism.” Also hard to read were William R. Day and Mahlon Pitney. Born in Ohio into a family of judges, Day was another prominent lawyer and staunch Republican, who, after serving as assistant secretary of state under McKinley and as a member of the Court of Appeals for the Sixth Circuit, had been appointed to the high court by Roosevelt in 1903. Often a swing vote, he sided the majority in the German Alliance case, but wrote the majority opinion in Hammer v. Dagenhart. A native of New Jersey who prepared for the bar by working in his father's law office, Pitney was a former Republican congressman and member of the New Jersey Supreme Court before being appointed to the high court by Taft in 1912. A strong believer in freedom of contract, he was often at odds with Holmes and Brandeis.39

Unlike the New York Court of Appeals under Frank H. Hiscock, the U.S. Supreme Court under Edward D. White was not a particularly collegial body. As well as divided on ideological grounds, it was racked by personal animosity. According to William Howard Taft, the former president who was appointed chief justice by Warren G. Harding shortly after White died in May 1921, McReynolds was “a continual grouch.” He was also known for his “biting sarcasm and rude behavior.” Although he got along with Holmes, he had a strong aversion to Brandeis, which was based at least as much on ideological differences as on anti-Semitism. For years, writes one legal historian, he “would leave the room when Brandeis spoke in conference.” He even refused to pose for a court photo because under the rules of seniority he would have had to sit next to Brandeis. He would not speak to Clarke either; nor would he sign a letter of appreciation when Clarke resigned in September 1922. Moreover, according to legal historians, an “odd and in most ways pointless little rivalry” existed between McKenna and Holmes. McKenna dissented frequently from Holmes's opinions, and his dissents often had “a certain sharpness.” Given that the justices were so divided ideologically and personally—and given that Block v. Hirsh and Brown v. Feldman raised constitutional questions about which even well-meaning and well-tempered judges could disagree—it seemed highly unlikely that the high court would reach a decision on the basis of anything other than a very narrow majority.⁴⁰

On April 18, 1921, less than a month and a half after hearing oral arguments, the court issued Block v. Hirsh, reversing the decision of the District of Columbia Court of Appeals and upholding the constitutionality of the Ball Rent Act. Largely on the basis of Block v. Hirsh, it also issued Brown v. Feldman, affirming the ruling of the District Court for the Southern District of New York and upholding the constitutionality of the emergency rent laws. Both cases were decided by a five-to-four vote, which led Holmes, who wrote the majority opinion, to say to Felix Frankfurter, a Harvard Law School professor who would be appointed to the Supreme Court in 1939, “It was a close shave, wasn't it?” As expected, Brandeis and Clarke went along with Holmes. (The opinion “is in every way worthy,” Brandeis told him. “I do not recall when you have done better.” It “is a long stride,” Clarke wrote, “but you have taken it with clearness and force. And I march with you.”) Less expected but no less important, Day and Pitney went along with Holmes. In both cases McKenna—who, Holmes told Frankfurter, was “very much disturbed by the decision,” perhaps, writes one constitutional scholar, because his opinion in the German Alliance case “furnished the majority with its leading precedent”—wrote the dissenting opinions. McKenna's scathing opinions, in which White, Van Devanter, and McReynolds concurred, annoyed Holmes, who thought they were in “bad form.” Sixty-five years later another constitutional scholar called them “a diatribe.”41

Holmes acknowledged that the court could have confined itself to the validity of the provision of the Ball Rent Act that required landlords to give tenants thirty days’ notice. But this approach had little appeal for him. The constitutionality of the Ball Rent Act “must be decided, if not in this then in the next case,” he declared, “and it should be disposed of now.” Pointing out that legislative declarations are “entitled to at least great respect,” he wrote that it must be assumed that a housing emergency existed in the District of Columbia after World War I. The question before the court was “whether Congress was incompetent to meet it in the way in which it has been met by most of the civilized countries of the world.” He thought it was. The German Alliance and other cases had dispelled “the notion that what in its immediate aspect may only be a private transaction may not be raised by its class or character to a public affair.” And changing circumstances had “clothed the letting of buildings in the District of Columbia with a public interest so great as to justify regulation by law.” Citing Welch v. Swasey, in which the high court had upheld a Massachusetts statute that limited the heights of buildings in Boston, Holmes stressed that “a public exigency will justify the legislature in restricting property rights in land to a certain extent [even] without compensation.” If the legislature has the power to regulate building heights, it has the power to regulate building rents.⁴²

The only matter “open to debate,” Holmes went on, “is whether the statute goes too far,” whether it “might amount to taking without due process of law.” In his view, it did not. The Ball Rent Act is only “a temporary measure,” he said. “A limit in time, to tide over a passing trouble, may well justify a law that could not be upheld as a permanent change.” Under the act, moreover, the landlords were entitled to a reasonable rent, which was to be determined by the District of Columbia Rent Commission. It was of no concern to the court whether the provisions of the Ball Rent Act “were the wisest, whether they may not cost more than they come to, or [whether they] will effect the result desired,” Holmes went on. “It is enough that we are not warranted in saying that legislation that has been resorted to for the same purpose all over the world, is futile or has no reasonable relation to the relief sought.” He concluded his opinion by saying that the plaintiff's objection that the act deprives landlords and tenants of the right to trial by jury “amounts to little.” Given the importance of ensuring “a speedy and summary administration of the law,” the court was not prepared to hold “that the suspension of ordinary remedies was not a reasonable provision of a statute reasonable in its aim and intent.”43

As for the emergency rent laws, Holmes wrote, “The chief objections to these acts have been dealt with in Block v. Hirsh.” But he thought it necessary to deal briefly with a few issues that were not raised (or, at any rate, not emphasized) in the other case. The plaintiff argued that these laws impair contractual obligations. But, said Holmes, the court has long held that “contracts are made subject to this exercise of the power of the State when otherwise justified,” as it was in this case. The plaintiff also claimed that the laws apply to some cities, but not others, and to some buildings, but not others, which was a violation of the equal protection clause. “But,” he pointed out, “as the evil to be met was a very pressing want of shelter in certain crowded centers the classification was too obviously justified to need explanation.” Holmes also dismissed the plaintiff's argument that chapter 951 of the emergency rent laws was void on “the rather singular ground” that by requiring landlords to provide heat and other services to holdover tenants it infringes upon the Thirteenth Amendment. It is true, he acknowledged, that “the traditions of our law are opposed to compelling a man to perform personal services against his will even when he has contracted to render them.” But the services in question here “are so far from personal that they constitute the universal and necessary incidents of modern apartment houses.”⁴⁴

McKenna agreed with Holmes that two cases, which “were argued and submitted on the same day and practically depend upon the same principles,” should be considered together. What he had to say in Hirsh v. Block applied as well to Brown v. Feldman. On everything else, however, McKenna disagreed with Holmes. To Holmes's claim that the Ball Rent Act was made necessary by the postwar housing shortage, he responded that the country had fought other wars without relaxing constitutional requirements or exercising arbitrary power. “Of what concern,” he then asked, “is it to the public health or the operations of the Federal Government who shall occupy a cellar, and a room above it, for business purposes in the City of Washington?” And “Why is it the solicitude of the police power of the State of New York to keep from competition an apartment in the City of New York?” To say that it is to supply homes to the homeless “does not satisfy,” because all the laws do is keep one tenant in and another out. This they do by withdrawing “the dominion of the property from its owner, superseding the contracts he confidently made under the law then existing and subjecting them to the fiat of subsequent law.” “If such an exercise of government is legal,” McKenna asked, “what exercise of government is illegal? Houses are a necessary, but other things are as necessary. May they too be taken from the direction of their owners and disposed of by the Government?” If the government can extend a lease, it can compel one. If so, it can appropriate “unoccupied houses or unoccupied space in occupied houses.” Counsel for the New York tenants pointed out that similar laws have been enacted in other countries. But does this mean that conditions in the United States had reached a point “that socialism, or some form of socialism, is the only permanent corrective or accommodation?”45

Returning to the Constitution, McKenna went on, “Has it suddenly become weak—become, not a restraint upon evil government, but an impediment to good government? Has it become an anachronism, and is it to become ‘an archaeological relic,’ no longer to be an efficient factor in affairs but something only to engage and entertain the studies of antiquarians?” This, he thought, was “the inevitable consequence of the decision just rendered.” Under the Constitution, he pointed out, a contract cannot be impaired; “its obligation is impregnable.” And a lease is a contract. Yet under the rent laws the government was using its power to annul “a contract between two of its citizens and to transfer the uses of the property of one and vest them in the other.” If such power exists, what is its limit? McKenna asked. At stake was not “who shall have a cellar in the City of Washington or who shall have an apartment in a million-dollar apartment house in the City of New York,” but whether an owner can be deprived of property without due process of law and whether property can be “taken for public use without just compensation.” The Fifth and Fourteenth amendments notwithstanding, the majority held that the rent laws were justified by the existence of an emergency, a position the court had rejected in Ex Parte Milligan. The majority also ruled that the laws were a valid exercise of the police power because the renting of houses in Washington, D.C., was “clothed” with a public interest. But, said McKenna, there was a palpable difference between regulating the rates of a fire insurance company and exempting “a lessee from the covenants of his lease, with the approval of the State, in defiance of the rights of the lessor.” There was also a difference between imposing a restriction on building heights, which prevents one person from using his property in a way that injures another, and putting a limit on rent hikes.⁴⁶

McKenna conceded that it was hard to draw the line between the constitutional and unconstitutional use of the police power, “but it must be drawn.” And in the case of the Ball Rent Act (and, by implication, the emergency rent laws), the legislature had crossed the line. “Call it what you will—an exertion of police or other power—nothing can absolve it [the Ball Rent Act] from illegality.” “Limiting it to two years certainly cannot,” he wrote. It was what the law does, not how long it does it, that was beyond the pale. Moreover, if the government has the power to regulate rents, it can exercise that power for as long as it sees fit, “whether for two years or more than two years.” McKenna concluded his dissent, which was more than twice as long as Holmes's opinion, by posing a few other questions. If the state may impair contracts and their obligations—which, he said, are at the heart of the country's life and all its business—“may not the State have other interests besides the nullification of contracts, and may not its police power be exerted for their consummation? If not, why not? Under the decision just announced, if one provision of the Constitution may be subordinated to that power, may not other provisions be?” McKenna's dissent in Brown v. Feldman, which was only two pages long, added nothing to his dissent in Block v. Hirsh—except perhaps for a snide reference to the majority's efforts to weaken the Constitution by “refined dialectics”—a remark, writes one legal scholar, that “was aimed at Holmes and intended, presumably[,] to wound.”47

In the immediate aftermath of Brown v. Feldman, some real estate men claimed that the constitutionality of the emergency rent laws was still open to question because the U.S. Supreme Court had not yet ruled on the decisions that had been handed down by the New York State Court of Appeals. But most New Yorkers believed otherwise. As the Home News wrote, the high court's decision “settles for all time the question of the validity of the legislation.” David L. Podell, who had appeared before the court on behalf of Feldman and the Schwartz brothers, agreed. Brown v. Feldman was decisive because “the Supreme Court would have to reverse itself in order to reverse Judge Pound.” Podell, it turned out, was right. In October 1921 the high court disposed of Brixton v. La Fetra without considering it. And in March 1922 it affirmed the rulings by the Court of Appeals in Edgar A. Levy Leasing Company, Inc. v. Siegel and 810 West End Avenue, Inc. v. Stern. Writing for the court, Justice Clarke held that for the most part these cases raised the same questions as the Marcus Brown case “and must be ruled by it.” Concurring were Holmes, Brandeis, Day, Pitney, and Taft. Dissenting were McKenna, McReynolds, and Van Devanter, none of whom wrote an opinion. There were many New Yorkers who shared Louis Marshall's view that the decision was one of “the most pernicious ever” and that the Constitution now “belongs in a museum for exhibition with old battle flags.” But there were hardly any who took issue with the Call’s view that it brought an end to the efforts to challenge the constitutionality of the emergency rent laws.⁴⁸

Many Americans were dismayed by the court's rulings. Referring to Block v. Hirsh, Representative Theodore E. Burton of Ohio said, “I do not believe there is any decision that has been rendered by the Supreme Court for many years that has caused so much criticism by the legal profession.” Representative George S. Graham of Pennsylvania agreed, as did Senator Frank W. Brandegee of Connecticut. Although Julius Henry Cohen recalled otherwise, Louis Marshall took the defeat hard. The decisions were “revolutionary,” he wrote a friend. “They constitute a confiscation of private property for private use.” George W. Wickersham, Taft's attorney general, felt much the same way. Unless the high court reversed itself, “we must frankly recognize that the age of individualism is past and the age of collectivism [has] arrived; that all rights are to be held subject to the legislative will, restrained only by the remnants of judicial power to be asserted where the encroachment appears to the Court to be obviously unjust.” The Central Law Journal went even further. After pointing out that Block v. Hirsh put the police power above the Constitution, it wrote, “If this principle is carried to its logical conclusion, the Fifth and Fourteenth Amendments are but ‘scraps of paper.’” Unless the high court set limits to this power, “any man's property can be taken whenever the majority sees fit to take it. Bolshevism could not ask for more.” Many real estate men claimed that the court's decisions were bad policy as well as bad law. They would discourage investment in residential construction and, in the words of the Real Estate Record and Builders Guide, “indefinitely prolong” the very crisis the rent laws were supposed to bring to an end.49

Many other Americans were heartened by the court's decisions. The New York World denied that they paved “the way toward Socialism.” “When an emergency arises it would be unfortunate not only for the people but for the enduring framework of the Government itself if there were not inherent power in Congress or in Legislatures to cope with the situation.” Property rights “must in the last analysis give way to public welfare.” The New York Times also came out in favor of the decisions, as did the Washington Post, which noted that “some of the most important questions ever decided by the United States Supreme Court were determined by the narrow margin of one vote.” The Outlook did not believe the Ball Rent Act was “a very wise law,” but neither did it think Block v. Hirsh was a “radical” decision. The Supreme Court had been steadily expanding the police power for the last twenty-five years, it pointed out. Taking strong exception to the minority opinion, one legal scholar wrote in the California Law Review, “To what purpose would avail the half-million people in New York City, about to be unhoused, the felicity of expression of the dissenting justices and their eloquent tribute to the Constitution?” How could the Constitution be regarded a “the most wonderful work … of man” when “under its beneficent protection it is the law that hundreds of thousands of families [may] be unsheltered by those hiring out one of the basic and primal necessaries of life”? Even a few businessmen who were not happy with Block v. Hirsh conceded that it made it clear to landlords and tenants “where they stand.”⁵⁰

Still other Americans, many of them academics, took a more dispassionate view of the court's decisions. Walter F. Dodd, a political scientist at Johns Hopkins, argued that the impact of the rulings had been exaggerated. They “justify no great alarm on the part of those opposed to further government regulation, and no great encouragement to those favoring such a policy.” They mark neither a “material or permanent breakdown of constitutional guarantees” nor a “judicial sanction for the regulation of prices.” Edward S. Corwin, a Princeton political scientist who said it was impossible not to sympathize with Justice McKenna, agreed with the majority that “private rights must ultimately yield to urgent public interest,” but took it to task for assuming “that because government has the power to meet emergencies, anything which it may do to that end is necessarily constitutional.” The Supreme Court has dealt property interests “a staggering blow,” wrote George W. Goble, professor of law at the University of Kentucky, but at the same time it has provided “an effective antidote to property's most persistent enemy, socialism.” If “the legislature can [henceforth] assume as full and complete control over private property and private business as the welfare of the public requires,” for what, he asked, do Americans need socialism? Justice McKenna said that Block v. Hirsh “smacks of socialism,” but isn't “it better for the interests of all that the decision should smack of socialism, than that it be socialism?”⁵¹

No matter how they felt about the Supreme Court's decisions, most Americans viewed them as a great victory for the tenants and a great defeat for the landlords. Washington's tenants, among them more than a few Congressman who had been gouged by profiteering landlords, were “jubilant,” reported the Post. And added the Home News, New York's tenants were relieved that the high court had “finally resolved, once and for all, the right of the people to protect themselves from grasping property owners.” By contrast, Washington's landlords were “panic-stricken,” wrote the Post. And New York's landlords were keenly disappointed, said the Real Estate Record and Builders Guide. The court's decisions also had a profound impact in cities other than Washington and New York. In Chicago officials of the Tenants’ Protective League were so elated by the high court's decisions that they made plans to storm Springfield, where a few rent control bills had been passed by the Senate and were being considered by the House Judiciary Committee. (A spokesman for the Chicago Real Estate Board said that now that the board stood no chance in the courts, it “will leave no stone unturned to defeat these bills in the legislature.”) In Los Angeles, where the Apartment-House Owners’ Association had filed a suit challenging the constitutionality of a rent-control ordinance, a spokesman for the Tenants’ Protective Association predicted that as a result of the Supreme Court's decisions the suit would be dropped.52

A few Americans were not convinced that the Supreme Court's decisions were a great victory for the tenants. Indeed, Fiorello H. La Guardia later said that once he understood that the New York rent laws were valid only as long “as the emergency existed,” he realized that what had once seemed “a great victory” was in fact “a great defeat.” Although prone to hyperbole, La Guardia had a point. As the World wrote, Block v. Hirsh did not rest on “such a sweeping assertion of the police power” as did Durham v. La Fetra. Although Pound ruled in favor of the New York rent laws on the grounds that the state had the power to regulate the use of private property even “in the absence of an emergency,” Holmes held that the Ball Rent Act was “justified only as a temporary measure” and might well not have been sustained as “a permanent change.” Holmes was not the first to come up with this idea. Pound's colleague Frederick E. Crane went along with Durham v. La Fetra on the basis of his opinion in Guttag v. Shatzkin, in which he held that the emergency rent laws were valid only as long as “the danger or peril lasted.” Also, after pointing out that in view of the emergency facing New York it was reasonable for the legislature to suspend evictions for two years, Guthrie and Cohen said, “If, therefore, it should hereafter or before November 1, 1922 [the date on which the rent laws were to expire] come to pass that the housing shortage and emergency in the City of New York disappear, the courts will then have ample power to declare these laws to be no longer in operation.”⁵³

What deterred the Supreme Court from following the lead of the Court of Appeals and upholding the rent laws as a valid exercise of the police power? One possible reason is that Holmes was not prepared to go as far as Pound. As he wrote in another decision that was handed down about a year and a half later, the two statutes “went to the verge of the law.” Another possible reason is that Holmes did not have the votes to uphold the laws on more sweeping grounds, that he had to take the position that they were temporary measures in order to put together a majority and especially to win over Day and Pitney, both of whom had dissented in Wilson v. New. Whatever the reason, the result was momentous. Block v. Hirsh shaped the subsequent history of rent control not only in Washington, D.C., but also in the rest of the country. In the case of New York, the decision meant that the emergency rent laws would stand until November 1, 1922, unless they were modified or repealed by the state legislature. But it also meant that in the event the legislature saw fit to extend the laws it would probably have to prove to the satisfaction of the courts that an emergency still existed in New York and the other cities to which the laws applied. And that, Louis Marshall pointed out, would be easier said than done.54