other circumstances. Having regard to the course of dealing and all the pertinent facts disclosed by the present record, we think whether there existed an unlawful combination or agreement between the manufacturer and jobbers was a question for the jury to decide, and that the circuit court of appeals erred when it held otherwise.

Among other things the trial court charged:

"I can only say to you that if you shall find that the defendant indicated a sales plan to the wholesalers and jobbers, which plan fixed the price below which the wholesalers and jobbers were not to sell to retailers, and you find defendant called this particular feature of this plan [211] to their attention on very many different occasions, and you find the great majority of them not only expressing no dissent from such plan, but actually co-operating in carrying it out by themselves selling at the prices named, you may reasonably find from such fact that there was an agreement or combination forbidden by the Sherman Anti-trust Act."

The recited facts, standing alone (there were other pregnant ones), did not suffice to establish an agreement or combination forbidden by the Sherman Act. This we pointed out in United States v. Colgate & Co. As given, the instruction was erroneous and material. The judgment below must be affirmed.

Mr. Justice Pitney, with whom concurred Mr. Justice Day and Mr. Justice Clarke, dissenting:

favor of plaintiff was reversed by the circuit court of appeals (171 C. C. A. 661, 261 Fed. 65), upon the ground that the acts of defendant and its associates amounted to no more than an announcement in advance that customers were expected [212] to charge prices fixed by defendant upon penalty of refusal to sell to an offending customer, observance of the request by customers generally, and actual enforcement of the penalty by refusing to sell to such customers as failed to maintain the price; and hence that, under the decision of this court in United States v. Colgate & Co. 250 U. S. 300, 63 L. ed. 992, 7 A.L.R. 443, 39 Sup. Ct. Rep. 465, there was no ground of recovery under the Anti-trust Act.

I agree with the court that the circuit court of appeals misapprehended the effect of our decision in the case cited, and that, under rules laid down in Dr. Miles Medical Co. v. John D. Park & Sons Co. 220 U. S. 373, 399, 400, 498, 55 L. ed. 502, 515, 516, 518, 31 Sup. Ct. Rep. 376, and United States v. A. Schrader's Son, 252 U. S. 85, 99, 64 L. ed. 471, 475, 40 Sup. Ct. Rep. 251, the trial judge was right in submitting the case to the jury.

Notwithstanding its conclusion that the court of appeals erred in holding that a verdict ought to have been directed in favor of defendant, the majority holds that the judgment under review here ought to be affirmed, because of supposed error in an instruction given to the jury (a new trial having been waived by plaintiff on consenting to entry of final judgment for the Packing Company by the circuit court of appeals under the practice followed in Thomsen v. Cayser, 243 U. S. 66, 83, 61 L. ed. 597, 605, 37 Sup. Ct. Rep. 353, Ann. Cas. 1917D, 322).

I am constrained to dissent from the opinion and judgment of the court. The action was brought by plaintiff in error, in part to recover threefold damages under § 7 of the Sherman Anti-trust Act of July 2, 1890 (chap. 647, 26 Stat. The instruction to which error is atat L. 209, 210, Comp. Stat. §§ 8820, 8829, tributed related to the question whether 9 Fed. Stat. Anno. 2d ed. pp. 644, 713), a combination between defendant and because of injuries sustained in its busi- the wholesalers and jobbers for the purness by reason of an alleged combina- pose of maintaining resale prices had in tion or agreement for the maintenance fact been shown. After referring to of prices made between the Packing the method pursued by defendant in Company and various wholesalers and jobbers in its product known as "Old Dutch Cleanser." The declaration contained a second count, based upon alleged discrimination in violation of the Clayton Act of October 15, 1914 (chap. 323, §§ 2, 4, 58 Stat. at L. 730, 731, Comp. Stat. §§ 8835b, 8835d, 9 Fed. Stat. Anno. 2d ed. pp. 731, 736); but this calls for no special notice. A judgment rendered by the United States district court upon the verdict of a jury in

marketing "Old Dutch Cleanser," and stating that, under the law, defendant could not be held liable under the first count unless it was a party to a contract or combination or conspiracy to fix and maintain prices; that defendant denied it was a party to any such combination, contract, or conspiracy, and insisted it had merely notified the jobbing trade what prices it thought were the lowest at which jobbers would resell its product at sufficient return [213] to

1

v. Whitehead, 16 Wall. 314, 21 L. ed. 357; Williams v. Bruffy, 96 U. S. 176, 24 L. ed. 716; Edwards v. Kearzey, 96 U. S. 595, 24 L. ed. 793; Barnitz v. Beverly, 163 U. S. 118, 41 L. ed. 93, 16 Sup. Ct. Rep. 1042; Effinger v. Kenney, 115 U. S. 566, 29 L. ed. 495, 6 Sup. Ct. Rep. 179; Oshkosh Waterworks Co. v. Oshkosh, 187 U. S. 437, 47 L. ed. 249, 23 Sup. Ct. Rep. 234; Bradley v. Lightcap, 195 U. S. 24, 49 L. ed. 75, 24 Sup. Ct. Rep. 753.

The fact that the act under review recites that it is based on the existence of a public emergency does not validate it, if its provisions are violative of the Constitution.

Ex parte Milligan, 4 Wall. 2, 121, 18 L. ed. 281, 295; Wilson v. New, 243 U. S. 376, 61 L. ed. 785, L.R.A.1917E, 938, 37 Sup. Ct. Rep. 298, Ann. Cas. 1918A, 1024; Effinger v. Kenney, 115 U. S. 566, 572, 574, 29 L. ed. 495, 497, 498, 6 Sup. Ct. Rep. 179; Re Cheesebrough, 78 N. Y. 237; Wynehamer v. People, 13 N. Y. 401.

People ex rel. Tyroler v. Warden, 157
N. Y. 116, 43 L.R.A. 264, 68 Am. St.
Rep. 763, 51 N. E. 1006.

If it was the purpose of the legislature to deal effectually with the housing problem by stimulating the building of additional houses, then this measure neutralizes that purpose, because it discourages the ownership of property that is to be devoted to occupation for private residence.

People ex rel. Rayland Realty Co. v. Fagan, 194 App. Div. 185, 186 N. Y. Supp. 23.

While it may be conceded that the legislature may take away any remedy that it has created, and may modify court procedure, it has no power to take from an owner of property or of a property right all remedies for the enforcement of his legal rights. That in itself constitutes deprivation of property without due process of law, and an impairment of the obligation of a contract.

Guttag v. Shatzkin, 194 App. Div. While it is undoubtedly true that the 509, 186 N. Y. Supp. 47; 810 West End report of a legislative committee is a Ave. v. Stern, 194 App. Div. 521, 186 competent source from which to dis- N. Y. Supp. 56; Gilman v. Tucker, 128 cover the meaning of the language em- N. Y. 190, 13 L.R.A. 304, 26 Am. St. ployed in a statute, the only purpose Rep. 464, 28 N. E. 1040; Walker v. for which the use of such reports has Whitehead, 16 Wall. 314, 21 L. ed. 357; been hitherto sanctioned has been to Cooley, Const. Lim. 411; Green v. Biddetermine the scope of the statute that dle, 8 Wheat. 1, 5 L. ed. 547; Bronson may have been passed on the strength v. Kinzie, 1 How. 311, 315, 317, 11 L. of such report. It cannot be resorted ed. 143-145; Edwards v. Kearzey, 96 to for the purpose of construing it con- | U. S. 595, 599, 24 L. ed. 793, 796; 12 trary to its plain terms, and we submit C. J. 1067; Litchfield v. Bond, 186 N. that its conclusions, which are either Y. 80, 78 N. E. 719; Bradt v. Church, without supporting facts or are con-110 N. Y. 542, 18 N. E. 357; Gaslight trary to the facts, can no more be Co. v. Rome, W. & O. R. Co. 11 N. Y. deemed conclusive when the validity of Civ. Proc. Rep. 244; Den ex dem. the legislation is attacked than can a Johnson v. Morris, 7 N. J. L. 9, 11 Am. declaration within the body of it, by Dec. 508. which it is sought to be justified.

Binns v. United States, 194 U. S. 495, 48 L. ed. 1090, 24 Sup. Ct. Rep. 816; Pennsylvania R. Co. v. International Coal Min. Co. 230 U. S. 199, 57 L. ed. 1452, 33 Sup. Ct. Rep. 893, Ann. Cas. 1915A, 315; Woollcott v. Shubert, 217 N. Y. 212, L.R.A.1916E, 248, 111 N. E. 829, Ann. Cas. 1916B, 726.

The fact that there are some landlords who are selfish and greedy is no more justification for this revolutionary legislation than the dishonesty of some merchants or farmers or mechanics would justify legislation destructive of their business.

Adams v. Tanner, 244 U. S. 594, 61 L. ed. 1342, L.R.A.1917F, 1163, 37 Sup. Ct. Rep. 662, Ann. Cas. 1917D, 973;

Mr. Justice Holmes delivered the opinion of the court:

This is a bill in equity, brought by the Marcus Brown Holding Company, the appellant, owner of a large apartment house in the city of New York, against the tenants of an apartment in the house and the district attorney of the county of New York. The tenants are holding over after their lease has expired, which it did on September 30, 1920, claiming the right to do so under chapters 942 and 947 of the Laws of New York of 1920. The object of the bill is to have these and other connected laws declared unconstitutional. The district attorney is joined in order to prevent his enforcing by criminal proceedings chapters 131

944 for disputes as to what is a reasonable rent. They are dealt with in the decisions of the court of appeals, cited below, and in Edgar A. Levy Leasing Co. v. Siegel, March 8, 1921, 230 N. Y. (mem.) 834, 130 N. E. 923, by the same court. In this, as in the previous case of Block v. Hirsh [256 U. S. 135, ante, 865, 16 A.L.R. 165, 41 Sup. Ct. Rep. 458], we shall assume in accordance with the statutes, the finding of the court below, and of the court of appeals of the state, in People ex rel. Durham Realty Corp. v. La Fetra, March 8, 1921, 230 N. Y. 429, 16 A.L.R. 152, 130 N. E. 601, and Guttag v. Shatzkin, March 8, 1921, 230 N. Y. (mem.) 647, 130 N. E. 929, that the emergency declared exists. Hebe Co. v. Shaw, 248 U. S. 297, 303, 63 L. ed. 255, 258, 39 Sup. Ct. Rep. 125; Hairston v. Danville & W. R. Co. 208 U. S. 598, 607, 52 L. ed. 637, 641, 28 Sup. Ct. Rep. 331, 13 Ann. Cas. 1008.

and 951 of the acts of the same year, which make it a misdemeanor for the lessor or any agent [197] 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 or customary use of the building. The case was heard in the district court by three judges upon the bill, answer, affidavits, and some public documents, all of which may be summed up in a few words. The bill alleges at length the rights given to a lessor by the common law and statutes of New York before the enactment of the statutes relied upon by the tenants, a covenant by the latter to surrender possession at the termination of their lease, and due demand, and claims protection under article 1, § 10, and the 14th Amendment of the Constitution of the United States. An affidavit alleges that before the passage of the new statutes another lease of the premises had The chief objections to these acts have been made, to go into effect on October been dealt with in Block v. Hirsh, 1, 1920. The answer of the tenants re- supra. In the present case more emlies upon the new statutes, and alleges phasis is laid upon the impairment of a willingness to pay a reasonable rent the obligation of the contract of the and any reasonable increase, as the same lessees to surrender possession, and of may be determined by a court of compe- the new lease, which was to have gone tent jurisdiction. It also alleges that into effect upon October 1, last year. they made efforts to obtain another suit-But contracts are made subject to this able apartment, but failed. The district attorney moved to dismiss the bill. The judges considered the case upon the merits, upheld the laws, and ordered the bill to be dismissed.

exercise of the power of the state when otherwise justified, as we have held this to be. Manigault v. Springs, 199 U. S. 473, 480, 50 L. ed. 274, 278, 26 Sup. Ct. Rep. 127; Louisville & N. R. Co. v. MottBy the above-mentioned chapters 942 ley, 219 U. S. 467, 482, 55 L. ed. 297, and 947, a public emergency is declared 303, 34 L.R.A.(N.S.) 671, 31 Sup. Ct. to exist, and it is provided by chapter Rep. 265; Chicago & A. R. Co. v. Tran947 that no action "shall be maintainable barger, 238 U. S. 67, 76, 77, 59 L. ed. to recover the possession of real proper- 1204, 1210, 1211, 35 Sup. Ct. Rep. 678; ty in a city of a population of one mil- Union Dry Goods Co. v. Georgia Pub. lion or more, or in a city in a county Service Corp. 248 U. S. 372, 375, 63 L. adjoining such city, occupied for dwell- ed. 309, 311, 9 A.L.R. 1420, P.U.R.1919C, ing purposes, except an action to recov- 60, 39 Sup. Ct. Rep. 117; Producers' er such possession upon the ground that Transp. Co. v. Railroad Commission, 251 the person is holding over and is ob- U. S. 228, 232, 64 L. ed. 239, 242, P.U.R. jectionable, or an action where 1920C, 574, 40 Sup. Ct. Rep. 131. It is the owner of record of the building, be- said, too, that the laws are discriminating a natural person, seeks in good faithing, in respect of the cities affected and to recover possession of the same or a the character of the buildings, the laws room or rooms therein for the immedi- not extending to buildings occupied for ate [198] and personal occupancy by himself and his family as a dwelling; or an action to recover premises for the purpose of demolishing the same with the intention of constructing a new building..." The earlier chapter 942 is similar, with some further details. Both acts are to be in effect only until November 1, 1922. It is unnecessary to state the provisions of chapter

business purposes, hotel property, or buildings now in course of erection, etc. [199] But, 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, beyond repeating what was said below as to new buildings, that the unknown cost of completing them and the need to encourage such structures suf

ficiently explain the last item on the ex-,viduals engaged in a private and percepted list. sonal matter are subject to impairment It is objected finally that chapter 951, by a state law, and we submit, as we above stated, in so far as it required argued in the Hirsh Case, that if the active services to be rendered to the state have such power-if its power is tenants, is void on the rather singular superior to article 1, § 10, and the 14th ground that it infringes the 13th Amend- Amendment-it is superior to every othment. It is true that the traditions er limitation upon every power expressed of our law are opposed to compelling a in the Constitution of the United States, man to perform strictly personal serv- commits rights of property to a state's ices against his will, even when he has unrestrained conceptions of its interests, contracted to render them. But the and any question of them-remedy services in question, although involving against them-is left in such obscurity some activities, are so far from personal as to be a denial of both. There is a that they constitute the universal and concession of limitation, but no defininecessary incidents of modern apart- tion of it, and the reasoning of the opinment houses. They are analogous to the ion, as we understand it, and its imservices that, in the old law, might is-plications and its incident, establish sue out of or be attached to land. We perceive no additional difficulties in this statute, if applicable as assumed. The whole case was well discussed below, and we are of opinion that the decree should be affirmed.

Decree affirmed.

Mr. Justice McKenna, The CHIEF JUSTICE, Mr. Justice Van Devanter, and Mr. Justice McReynolds dissent:

This case was submitted with Block v. Hirsh, No. 640 [256 U. S. 135, ante, 865, 16 A.L.R. 165, 41 Sup. Ct. Rep. 458].

Like that case, it involves the right of a lessee of property-in this case an apartment in an apartment house in New York city to retain possession of it under a law of New York, after the expiration of the lease. This case is an emphasis of the other, and the argument in that applies to this. It may be more directly applicable, [200] for in this case. the police power of the state is the especial invocation, and the court's judgment is a concession to it. And, as we understand the opinion, in broader and less hesitating declaration of the extent and potency of that power. "More emphasis," it is said, "is laid upon the impairment of the obligation of the contract" than in the Hirsh Case. measurement of this as a reliance, it is said: "But contracts are made subject to this exercise of the power of the state when otherwise justified, as we have held this to be." The italics are ours, and we estimate them by the cases that are cited in their explanation and support. We are not disposed to a review of the cases. We leave them in reference, as the opinion does, with the comment that our deduction from them is not that of the opinion. There is not a line in any of them that declares that the explicit and definite covenants of private indi

In

practically unlimited power.

We are not disposed to further enlarge upon the case, or attempt to reconcile the explicit declaration of the Constitution against the power of the state to impair the obligations of a contract, or, under any pretense, to disregard the declaration. It is safer, saner, and more consonant with constitutional pre-eminence and its purposes, [201] to regard the declaration of the Constitution as paramount, and not to weaken it by refined dialectics, or bend it to some impulse or emergency "because of some accident of immediate overwhelming interest which appeals to the feelings, and distorts judgment." Northern Securities Co. v. United States, 193 U. S. 197, 400, 48 L. ed. 679, 726, 24 Sup. Ct. Rep. 436.

We therefore dissent.

The United States, suing in its own interest to cancel conveyances made by

Note. On conclusiveness of judgments, generally-see notes to Sharon v. Terry, 1 L.R.A. 572; Bollong v. Schuyler Nat. Bank, 3 L.R.A. 142; Wiese v. San Francisco Musical Fund Soc. 7 L.R.A. 577; Morrill v. Morrill, 11 L.R.A. 155; Shores v. Hooper, 11 L.R.A. 308; Bank of United States v. Beverly, 11 L. ed. U. S. 76; Johnson Steel Street R. Co. v. Wharton, 38 L. ed. U. S. 429; and Southern P. R. Co. V. States, 42 L. ed. U. S. 355.

United