ism, or some form of socialism, is the only permanent corrective or accommodation? It is indeed strange that this court, in effect, is called upon to make way for it, and, through an instrument of a constitution based on personal rights, and the purposeful encouragement of individual incentive and energy, to declare legal a power exerted for their destruction. [163] The inquiry occurs, Have we come to the realization of the observation that "war, unless it be fought for liberty, is the most deadly enemy of liberty?"

But, passing that, and returning to the Constitution, it will be observed, as we have said, that its words are a restraint upon power, intended as such in deliberate persuasion of its wisdom as against unrestrained freedom.

make a contract or its obligation we need not consider. The present case is concerned with a lease, and that a lease is a contract we do not pause to demonstrate either to lawyers or to laymen; nor that the rights of the lessor are the obligations of the lessee, and, of course, the rights of the lessee are the obligations of the lessor, the mutuality constituting the consideration of the contract, the inducement to it and its value, no less to the lessee than to the lessor.

What were the rights and obligations in the present case, and what was the right of Hirsh to control his property? Hirsh is the purchaser of a lot in the city of Washington; Block is the lessee of the lot, and he agreed that, at the end of his tenancy, he would surrender the premises, and this and "each and every one of the covenants, conditions, and agreements," he promised "to keep and perform." Hirsh, at the end of the term, demanded possession. It was refused, and against this suit to recover possession there was pleaded the statute. The defense prevailed in the trial court; the statute was declared unconstitutional in the court of appeals. It is sustained by the decision just announced.

It is manifest, therefore, that by the statute the government interposes with its power to annul the covenants of a contract between two of its citizens, and to transfer the uses of the property of one and vest them in the other.


And it is significant that it is not restraint upon a "governing one,'" but restraint upon the people themselves; and in the persuasion, to use the words of one of the supporters of the Constitution, "the natural order of things is for liberty to yield and for government to gain ground." Sinister interests, its conception is, may move government to exercise; one class may become dominant over another; and against the tyranny and injustice that will result, the framers of the Constitution believed precautions were as necessary as against any other abuse of power. And so careful is it of liberty that it protects in many provisions the individual against the magistrate. Has it suddenly become weak-be- interposition of a commission is but a come not a restraint upon evil govern- | detail in the power exerted, not extenment, but an impediment to good uating it in any legal sense. Indeed, ingovernment? Has it become an anach-tensifies its illegality,-takes away the ronism, and is it to become "an archæo- right to a jury trial from any dispute of logical relic," no longer to be an effi- fact. cient factor in affairs, but something only to engage and entertain the studies of antiquarians? Is not this to be dreaded-indeed, will it not be the inevitable consequence of the decision just rendered? Let us see what it justifies, and upon what principle. But first and preliminary to that inquiry are the provisions it strikes down. We have given them, but we repeat them. By article 1 of § 10 it is provided: "No State shall

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pass any

Law impairing the Obligation of Con-
tracts, .
By the 5th Amendment
no person can be deprived of property
without due process of law. The pro-
hibitions need no strengthening com-
ment. They are as absolute as axioms.
A contract existing, its obligation is im-
pregnable. [164] The elements that

If such power exist, what is its limit and what its consequences? And by consequences we do not mean 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 the broader consequences of unrestrained power and its exertion against property, having [165] example in the present case, and likely to be applied in other cases. This is of grave concern. The security of property, next to personal security against the exertions of government, is of the essence of liberty. They are joined in protection, as we have shown, and both the national government (5th Amendment) and the states (14th Amendment) are forbidden to deprive any person "of life, liberty, or property, without due

process of law;" and the emphasis of letting may be only of private concern; the 5th Amendment is that private and the deduction is justified, it is said, property cannot be "taken for public by analogy to the business of insurance, use without just compensation." And the business of irrigation, and the busiin recognition of the purpose to protect ness of mining. German Alliance Ins. property and the rights of its owner Co. v. Lewis, 233 U. S. 389, 58 L. ed. from governmental aggression, the 3d 1011, L.R.A.1915C, 1189, 34 Sup. Ct. Amendment provides: "No soldier shall, Rep. 612; Clark v. Nash, 198 U. S. 361, in time of peace, be quartered in any 49 L. ed. 1085, 25 Sup. Ct. Rep. 676, 4 house, without the consent of the owner, Ann. Cas. 1171, Strickley v. Highland nor in time of war, but in a manner to Boy Gold Min. Co. 200 U. S. 527, 50 be prescribed by law." L. ed. 581, 26 Sup. Ct. Rep. 301, 4 Ann. Cas. 1174. It is difficult to handle the cases or the assertion of what they decide. An opposing denial is only available.

There can be no conception of property aside from its control and use, and upon its use depends its value. Branson v. Bush, 251 U. S. 182, 187, 64 L. ed. 215, 219, 40 Sup. Ct. Rep. 113. Protection to it has been regarded as a vital principle of Republican institutions. It is next in degree to the protection of personal liberty and freedom from undue interference or molestation. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581. Our social system rests largely upon its sanctity, "and that state or community which seeks to invade it will soon discover the error in the disaster which follows." Knoxville v. Knoxville Water Co. 212 U. S. 1, 18, 53 L. ed. 371, 382, 29 Sup. Ct. Rep. 148.

There is not a contention made in this case that this court has not pronounced untenable. An emergency is asserted as a justification of the statute and the impairment of the contract of the lease. A like contention was rejected in Ex parte Milligan, 4 Wall. 2, 18 L. ed. 281. It is there declared (page 120) "that the principles of constitutional liberty would be in peril unless established by unrepealable law." And it was said that "the Constitution of the United States is a law for rulers and people equally in war [166] and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government."

But what is the power that is put in opposition to the Constitution and supersedes its prohibitions? It is not clear from the opinion what it is. The opinion gives to the police power a certain force, but its range is not defined. Circumstances, it is said, "have clothed the letting of buildings in the District of Columbia with a public interest so great as to justify regulation by law," though at other times and places such

To us the difference is palpable between life insurance and the regulation of its rates by the state, and the exemption of a lessee from the covenants of his lease with the approval of the state, in defiance of the rights of the lessor. And as palpably different is the use of water for mining or irrigation or manufacturing, and eminent domain exercised for the procurement of its means, with the requirement of compensation, and as palpably different is eminent domain, with attendant compensation, exercised for railways and other means for the working of mines.

And there is less analogy in laws regulating the height of buildings in business sections of a city; or the requirement of boundary pillars in coal mines to safeguard the employees of one in case the other should be abandoned and allowed to fill with water; or the regulation of billboards [167] in cities on account of their menace to morality, health, and decency (in what way it is not necessary to specify); or the keeping clear of watersheds to protect the water reservoirs of cities from damage or devastating fires or the peril of them, from accumulation of "tree tops, boughs, and lops" left upon the ground.1

The cases and their incidents hardly need explanatory comment. They justify the prohibition of the use of property to the injury of others,-a prohibition that is expressed in one of the maxims of our jurisprudence. Such use of property is, of course, within the regulating power of government. It is one of the objects of government to pre

Welch v. Swasey, 214 U. S. 91, 53 L. ed. 923, 29 Sup. Ct. Rep. 567; Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 58 L. ed. 713, 34 Sup. Ct. Rep. 359; St. Louis Poster Advertising Co. v. St. Louis, 249 U. S. 269, 63 L. ed. 599, 39 Sup. Ct. Rep. 274; Perley v. North Carolina, 249 U. S. 510, 63 L. ed. 735, 39 Sup. Ct. Rep. 357.

vent harm by one person to another by, expressed in it, and its justification any conduct.

The police power has some pretense for its invocation. Regarding alone the words of its definition, it embraces power over everything under the sun, and the line that separates its legal from its illegal operation cannot be easily drawn. But it must be drawn. To borrow the illustration of another, the line that separates day from night cannot be easily discerned or traced, yet the light of day and the darkness of night are very distinct things. And as distinct in our judgment is the puissance of the Constitution over all other ordinances of power, and as distinct are the cited cases from this case; and if they can bear the extent put upon them, what extent can be put upon the case at bar or upon the limit of the principle it declares? It is based upon the insistency of the public interest and its power. As we understand, the assertion is, that legislation can regard a private transaction as a matter of public interest. It is not possible to express the possession or exercise of more unbounded or irresponsible power. It is true, in mitigation of this declaration and of the alarm that it causes, it is said that the regard [168] is not necessarily conclusive on the courts, but "is entitled, at least, to great respect." This is intangible to measurement or brief answer. But we need not beat about in generalities, or grope in their indetermination in subtle search for a test of a legal judgment upon the conditions, or the power exerted for their relief. "The Rent Law" is brought to particularity by the condemnation of the Constitution of the United States. Call it what you will,-an exertion of police or other power,-nothing can absolve it from illegality. Limiting its duration to two years certainly cannot. It is what it does that is of concern. Besides, it is not sustained as the expedient of an occasion, the insistence of an emergency, but as a power in government over property based on the decisions of this court, whose extent and efficacy the opinion takes pains to set forth and illustrate. And as a power in government, if it exist at all, it is perennial and universal, and can give what duration it pleases to its exercise, whether for two years or for more than two years. If it can be made to endure for two years, it can be made to endure for more. There is no other power that can pronounce the limit of its duration against the time

practically marks the doom of the judicial judgment on legislative action.

The wonder comes to us, what will the country do with its new freedom? Contracts and the obligation of contracts are the basis of life and of all its business, and the Constitution, fortifying the conventions of honor, is their conserving power. Who can foretell the consequences of its destruction, or even question of it? The case is con-cerned with the results of the German war, and we are reminded thereby that there were contracts made by the national government in the necessity or solicitude of the conduct of the war,contracts into which patriotism eagerly entered, but, it may be, that interest was enticed by the promise of exemption [169] from a burden of government. Burdens of government are of the highest public interest, and their discharge is of imperious necessity. Therefore, the provocation or temptation may come to those who feel them that the property of others (estimated in the millions, perhaps) should not have asylum from a share of the load. And what answer can be made to such demand within the principle of the case now decided? Their promises are as much within the principle as the lease of Hirsh is; for necessarily, if one contract can be disregarded in the public interest, every contract can be; patriotic honor may be involved in one more than in another, but degrees of honor may not be attended to,-the public interest regarded as paramount. At any rate, does not the decision just delivered cause a dread of such result, and take away assurance of security and value from the contracts and their evidences? And it is well to remember that other exigencies may come to the government, making necessary other appeals. The government can only offer the inducement and security of its bonds, but who will take them if doubt can be thrown upon the integrity of their promises under the conception of a public interest that is superior to the Constitution of the United States?

It comes to our recollection also that some states of the Union, in consummation of what is conceived to be a present necessity, have also entered into contracts of like kind. They, too, may come under a subsequent declaration of an imperious public interest, and their promises be made subject to it.

The prophecy is not unjustified. This, dwelling for himself and his family, or court has at times been forced to de- intends to demolish the building and conclare particular state laws void for struct a new one (providing the tenant or their attempted impairment of the obli- occupant is ready, willing, and able to pay a reasonable rent), as was done by N. Y. gation of contracts. To accusations Laws 1920, chaps. 942 and 947, was a hereafter of such an effect of a state valid exercise of the police power in the law this decision will be opposed, and emergency growing out of the World War, the conception of the public interest. and is not repugnant to the contract or [170] Indeed, we ask, may not the due process of law clauses of the Federal state have other interests besides the Constitution, even as applied to a case nullification of contracts, and may its where, before the passage of such statute, police power be exerted for their con-made, to go into effect on the day following another lease of the premises had been summation? If not, why not? Under the that when the existing lease by its terms decision just announced, if one provision expired, and when the lessees had contractof the Constitution may be subordinated ed to surrender the premises. to that power, may not other provisions [For other be? At any rate, the case commits the country to controversies, and their decision, whether for the supremacy of the Constitution or the supremacy of the power of the states, will depend upon the uncertainty of judicial judgment.

cases, see

Constitutional Law, IV. b. 7; IV. c, 3; IV. g, 4, h, in Digest Sup. Ct. 1908.]

Constitutional law

discrimination emergency legislation - rent laws. 2. There is no unconstitutional dis

crimination in respect of the cities affected or the character of the buildings, in N. Y. Laws 1920, chaps. 942 and 944, passed in the exercise of the police power in the emergency growing out of the World War, the right to recover possession of real propwhich suspended until November 1, 1922, erty occupied for dwelling purposes, although such laws are operative only in a MARCUS FELDMAN, Benjamin Schwartz, city having a population of one million or

Incorporated, Appt.,


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more, and in cities in a county adjoining
such a city, and do not extend to buildings
occupied for business purposes, hotel prop-
erty, or buildings in course of erection.
[For other cases, see Constitutional Law,
IV. a, 5, in Digest Sup. Ct. 1908.]

Constitutional law - involuntary servi


3. An involuntary servitude forbidden by U. S. Const., 13th Amend., is not created by the provisions of N. Y. Laws 1920, chaps. 131 and 951, which make it a misdemeanor for a lessor, or any agent or janitor, intentionally to fail to furnish such water, heat, light, elevator, telephone, or other service as may be required by the terms of the lease, and necessary to the proper and customary use of the building. [For other cases, see Constitutional IV. h, in Digest Sup. Ct. 1908.]

[No. 731.]


As to validity of class legislation, generally-see notes to State v. Good- Argued March 3 and 7, 1921. Decided April will, 6 L.R.A. 621, and State v. Loomis, 21 L.R.A. 789.

Generally, as to what laws are void as impairing obligation of contracts-see notes to Franklin County Grammar School v. Bailey, 10 L.R.A. 405; Bullard v. Northern P. R. Co. 11 L.R.A. 246; Henderson v. Soldiers & S. Monument Comrs. 13 L.R.A. 169, and Fletcher v. Peck, 3 L. ed. U. S. 162.

As to validity and construction of war legislation in nature of moratory statute see note to Thress v. Zemple, 9 A.L.R. 6.

18, 1921.

APPEAL from the District Court of

the United States for the Southern District of New York to review a decree which dismissed the bill in a suit to enjoin the enforcement of the New York Housing Laws. Affirmed.

See same case below, 269 Fed. 306. The facts are stated in the opinion. Mr. Joseph A. Seidman argued the cause and filed a brief for appellant:

The police power reserved to the states, although not expressly defined,

is nevertheless limited to the extent that | Houston, 119 U. S. 265, 30 L. ed. 411, no state may pass a law depriving one 7 Sup. Ct. Rep. 198; Stell v. Jersey of his property without due process of City, N. J. L., 111 Atl. 274; Edlaw. wards v. Kearzey, 96 U. S. 595, 24 L. ed. 793.

Newell v. People, 7 N. Y. 9; Federalist, 12 Hamilton Works, Lodge ed. p. 258; Yeatman v. King, 2 N. D. 421, 33 Am. St. Rep. 797, 51 N. W. 721; M'Culloch v. Maryland, 4 Wheat. 316, 4 L. ed. 579; Keller v. United States, 213 U. S. 138, 145, 53 L. ed. 737, 739, 29 Sup. Ct. Rep. 470, 16 Ann. Cas. 1066; E. Fourgera & Co. v. New York, 224 N. Y. 269, 1 A.L.R. 1467, 120 N. E. 642; Eubank v. Richmond, 226 U. S. 137, 145, 57 L. ed. 156, 159, 42 L.R.A. (N.S.) 1123, 33 Sup. Ct. Rep. 76, Ann. Cas. 1914B, 192; Buffalo v. Chadeayne, 134 N. Y. 163, 31 N. E. 443; Hamilton v. Kentucky Distilleries & Warehouse Co. 251 U. S. 146, 64 L. ed. 194, 40 Sup. Ct. Rep. 106; Brevoort v. Grace, 53 N. Y. 245; People v. Fisher, 190 N. Y. 468, 83 N. E. 482; Rockwell v. Nearing, 35 N. Y. 302; Powers v. Bergen, 6 N. Y. 359; Pumpelly v. Greene Bay & M. Canal Co. 13 Wall. 166, 177, 178, 20 L. ed. 557, 560; Wynehamer v. People, 13 N. Y. 378; Embury v. Conner, 3 N. Y. 511, 53 Am. Dec. 325; Terminal Taxicab Co. v. Kutz, 241 U. S. 256, 60 L. ed. 987, P.U.R.1916D, 972, 36 Sup. Ct. Rep. 583, Ann. Cas. 1916D, 765; Producers Transp. Co. v. Railroad Commission, 251 U. S. 228, 64 L. ed. 239, P.U.R.1920C, 574, 40 Sup. Ct. Rep. 131; Chesapeake & P. Teleph. Co. v. Manning, 186 U. S. 247, 46 L. ed. 1148, 22 Sup. Ct. Rep. 881; Kansas City Gas Co. v. Kansas City, 198 Fed. 500; Kansas Natural Gas Co. v. Haskell, 172 Fed. 566; Moore v. New Orleans Waterworks Co. 114 Fed. 382; Gibbs v. Tally, 133 Cal. 376, 60 L.R.A. 815, 65 Pac. 970; Louisville & N. R. Co. v. Central Stock Yards Co. 212 U. S. 151, 53 L. ed. 449, 29 Sup. Ct. Rep. 246; Yates v. Milwaukee, 10 Wall. 497, 19 L. ed. 984; Scranton v. Wheeler, 179 U. S. 164, 45 L. ed. 137, 21 Sup. Ct. Rep. 48; People ex rel. Copcutt v. Board of Health, 140 N. Y. 1, 23 L.R.A. 481, 37 Am. St. Rep. 522, 35 N. E. 320; Hume v. Laurel Hill Cemetery, 142 Fed. 565; Reinman v. Little Rock, 237 U. S. 171, 59 L. ed. 900, 35 Sup. Ct. Rep. 511; Re Jacobs, 98 N. Y. 106, 50 Am. Rep. 636; Bovd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524; Re Drainage in Penfield, 3 App. Div. 30, 37 N. Y. Supp. 1056, affirmed in 155 N. Y. 703, 50 N. E. 1116; Stone v. Mississippi, 101 U. S. 814, 25 L. ed. 1079; New Orleans v.


The police power of the state is a power to regulate the future use of property, and is not equivalent to a power to invalidate past transactions, and to discharge contract obligations.

Shreveport v. Cole, 129 U. S. 36, 43, 32 L. ed. 589, 591, 9 Sup. Ct. Rep. 210; Sawyer Spindle Co. v. Carpenter, 133 Fed. 240; Calder v. Bull, 3 Dall. 386, 390, 1 L. ed. 648, 650; Williams v. Port Chester, 72 App. Div. 505, 76 N. Y. Supp. 631; Ochoa v. Hernandez y Morales, 230 U. S. 139, 57 L. ed. 1427, 33 Sup. Ct. Rep. 1033; Chicago, M. & St. P. R. Co. v. Wisconsin, 238 U. S. 491, 59 L. ed. 1423, L.R.A.1916A, 1113, P.U.R.1915D, 706, 35 Sup. Ct. Rep. 869; Coe V. Armour Fertilizer Works, 237 U. S. 413, 59 L. ed. 1027, 35 Sup. Ct. Rep. 625; Riverside & D. River Cotton Mills v. Menefee, 237 U. S. 189, 59 L. ed. 910, 35 Sup. Ct. Rep. 579; Wilmington & W. R. Co. v. King, 91 U. S. 3, 23 L. ed. 186; Effinger v. Kenney, 115 U. S. 571, 29 L. ed. 496, 6 Sup. Ct. Rep. 179; Gantly v. Ewing, 3 How. 707, 11 L. ed. 794; Barnitz v. Beverly, 163 U. S. 118, 41 L. ed. 93, 16 Sup. Ct. Rep. 1042; Louisiana ex rel. Nelson v. St. Martin's Parish, 111 U. S. 716, 28 L. ed. 574, 4 Sup. Ct. Rep. 648; McGahey v. Virginia, 135 U. S. 662, 34 L. ed. 304, 10 Sup. Ct. Rep. 972; Kring v. Missouri, 107 U. S. 221, 27 L. ed. 506, 2 Sup. Ct. Rep. 443; Fletcher v. Peck, 6 Cranch, 87, 138, 3 L. ed. 162, 178; People ex rel. Dunkirk, W. & P. R. Co. v. Batchellor, 53 N. Y. 128, 13 Am. Rep. 480; Brevoort v. Grace, 53 N. Y. 245; Adair v. United States, 298 U. S. 161, 173, 52 L. ed. 436, 442, 28 Sup. Ct. Rep. 277, 13 Ann. Cas. 764; People ex rel. Tyroler v. Warden, 157 N. Y. 116, 43 L.R.A. 264, 68 Am. St. Rep. 763, 51 N. E. 1006; Lochner v. New York, 198 U. S. 45, 49 L. ed. 937, 25 Sup. Ct. Rep. 539, 3 Ann. Cas. 1133; Terminal Taxicab Co. v. Kutz, 241 U. S. 256, 60 L. ed. 984, P.U.R.1916D, 972, 36 Sup. Ct. Rep. 583, Ann. Cas. 1916D, 765; Chesapeake & P. Teleph. Co. v. Manning, 186 U. S. 238, 46 L. ed. 1144, 22 Sup. Ct. Rep. 881; A. M. Holter Hardware Co. v. Boyle, 263 Fed. 134; Detroit Creamery Co. v. Kinnane, 264 Fed. 845; Pumpelly v. Green Bay & M. Canal Co. 13 Wall. 166, 20 L. ed. 557; Gibbons v. Ogden, 9 Wheat. 222, 6 L. ed. 76; Hurtado v. California, 110 U. S.

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