(dissenting). Being unahle to unite with my Associates in the conclusion which they have reached in this case, I think it proper to state as briefly as may 'be the reasons for my position:
First. Block’s lease of the property expired December 31, 1919. Hirsh became the owner of the property November 12, 1919; therefore in ample time to give Block 30 days’ notice, as prescribed by the Ball Act, before his term expired. Hirsh brought his action for possession in the municipal court, saying, in the words of the record:
“Tlmt he is a bona fide purchaser of the said real property for his own occupancy and requires and intends to occupy and to use the same himself.”
Judgment went against him. He appealed to the Supreme Court of the District, and in his affidavit of merit repeated the allegation just quoted. Under rule 19 of that court he filed a motion for judgment on the ground that the affidavit of defense filed by Block was insufficient. The motion was overruled and judgment given for the defendant.
The Ball Act provides:
“The rights of the tenant under this title shall be subject to the limitation that the bona fide owner of any rental property, apartment, or hotel shall have the right to possession thereof for actual and bona fide occupancy by himself, or his wife, children, or dependents, * * * upon giving thirty days’ notice in writing, served in the manner provided by section 1223 of the Act entitled ‘An act to establish a Code of Laws for the District of Columbia,’ approved May 3, 1901, as amended, which notice shall contain a full and correct statement of the facts and circumstances upon which the same is based,” etc.
Therefore, if Hirsh’s allegation with respect to being a bona fide purchaser of the property for his own use is true, he would be awarded possession under the act by the commission, for we must assume that it would correctly decide the case. Shreveport v. Cole, 129 U. S. 36, 42, 9 Sup. Ct. 210, 32 L. Ed. 589; Strother v. Lucas, 12 Pet. 410, 9 L. Ed. 1137; Boley v. Griswold, 20 Wall. 486, 488, 22 L. Ed. 375; Butler v. Maples, 9 Wall. 766, 19 L. Ed. 822. Should the tenant refuse to yield possession, Hirsh could apply to the municipal court for the proper writ, and the commission’s determination under section 106 of the act would be conclusive of the “rights and duties” of the tenant, and a writ for possession would necessarily follow. Therefore, if he had pursued the course outlined in the act, he would have received complete relief, provided he gave the required 30 days’ notice. According to the law existing prior to the approval of the act, he would not have been required to give such notice. Does this render the act unconstitutional ?
The requirement with respect to the notice affects the remedy only. It does not touch the contractual rights of the parties. There is a wide difference between the obligation of a contract and the remedy for its enforcement. This has been the law at least since Sturges v. Crowninshield, 4 Wheat. 122, 4 L. Ed. 529. In that case Chief Justice Marshall said:
*624“The distinction between the obligation of a contract, and the remedy given by the Legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.”
In a later case the same court said:
“But it is equally well settled that changes in the forms of action and modes of proceeding do not amount to an impairment of the obligations of a contract, if an adequate and e&cacious remedy is left.” Antoni v. Greenhow, 107 U. S. 769, 774, 2 Sup. Ct. 91, 95 (27 L. Ed. 468).
To the same effect are Tennessee v. Sneed, 96 U. S. 69, 74, 24 L. Ed. 610; Wilson v. Standefer, 184 U. S. 399, 416, 22 Sup. Ct. 384, 46 L. Ed. 612; Waggoner v. Flack, 188 U. S. 595, 604, 23 Sup. Ct. 345, 47 L. Ed. 609; and Aikins v. Kingsbury, 247 U. S. 484, 488, 38 Sup. Ct. 558, 62 L. Ed. 1226.
According to the judgment of Congress the remedy in the case before us was modified; but that was legitimate, and did not make the act invalid.
It is asserted by Hirsh, and in effect repeated in the majority opinion, that the law insured him the unrestricted right of alienation of his property, the right to confer upon his alienee the right of possession without any claim or charge upon it, the right to relet the property to another tenant upon such terms as may be agreeable to him, without let or hindrance from Block, and that the act deprives him of these rights. The ready answer to these contentions is that he does not seek by his pleading the. right to sell or relet his property. He asks only that he be given possession of it for his own occupancy, and, as I have just pointed out, the act furnishes him a direct and effective means by which to get it. It will be- time enough to adjudicate the other fights when they properly arise. Of a situation quite similar to the one we are considering, the Supreme Court of the United States said:
“This is an effort to test the constitutionality of the law, without showing that the plaintiff had been injured by its application, and in this particular the ease falls within our ruling in Tyler v. Judges of Registration, 179 U. S. 405, wherein we held that the plaintiff was bound to show he had personally suffered an injury before he could institute a bill for relief. In short, the case made by the plaintiff is purely academic.” Rurpin v. Lemon, 187 U. S. 51, 60, 23 Sup. Ct. 20, 24 (47 L. Ed. 70.)
In a more recent case (Hatch v. Reardon, 204 U. S. 152, 160, 27 Sup. Ct. 188, 190, 51 L. Ed. 415, 9 Ann. Cas. 736), the same court said:
“But there is a point beyond which this court does not consider arguments of this sort for the purpose of invalidating the tax laws of a state on constitutional grounds. This limit has been fixed in many eases. It is that unless the party setting up the uneonstifutionality of the state law belongs to the class for whose sake the constitutional protection is given, or the class primarily protected, this court does not listen to his objections, and will not go into imaginary cases, notwithstanding the seeming logic of the position that it must do so, because if for any reason, or as against any class embraced, the law is unconstitutional, it is void as to all.”
In another case one Collins, an osteopath, was arrested for violating a law of Texas prohibiting a person from practicing medicine for *625money without having first procured a license tinder the statute. He sued out a writ of habeas corpus. It appeared he made no application to the State Medical Board for permission to register, assuming that he would be denied the right, and on this assumption attacked the constitutionality of the law. The Supreme Court, after pointing out his failure to seek the license, and the probability that he might have obtained it, if he had applied, said:
“On these facts we are of opinion that the plaintiff in error fails to show that the statute inflicts any wrong upon him contrary to the Fourteenth Amendment of the Constitution of the United States. If he has not suffered we are not called upon to speculate upon other cases, or to decide whether the followers of Christian Science * * 9 might 9 9 9 have cause to complain” Collins v. Texas, 223 U. S. 288, 295, 32 Sup. Ct. 286, 288 (56 L. Ed. 439).
So I may say here we are not called upon to decide whether, if Hirsh desired to sell or relet his property, the act would interfere with his doing so. My Associates say that the act deprives Hirsh of his right to a trial by jury, in disregard of the Seventh Amendment to the Constitution. But he did not ask for a jury trial. On the contrary, he moved the court under rule 19, as I have shown, for a judgment without the intervention of a jury. Why should they raise a question not presented by the record in order that they 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.
“Every possible presumption is in favor of tbe validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without, injury. The safety of our institutions depends in no small degree on a strict observance of this salutary rule.” Sinking-Fund Cases, 99 U. S. 700, 718 ( 25 L. Ed. 496) ; Hooper v. California, 155 U. S. 648, 657, 15 Sup. Ct 207, 39 L. Ed. 297; Presser v. Illinois, 116 U. S. 252, 269, 6 Sup. Ct. 580, 29 L. Ed. 615; Grenada County v. Brogden, 112 U. S. 261, 266, 5 Sup. Ct. 125, 28 L. Ed. 704.
The doctrine of the foregoing cases, which is binding on us, when applied to Hirsh’s contentions demonstrates that the latter have no basis in the law. Outside the matter of notice, which I have disposed of, the wrongs of which he complains are imaginary. The questions he raises are purely academic, and not properly before the court for adjudication.
Second. It is urged by Hirsh that the regulation of the use of rental property and of the charges to be made therefor in the District is not within the scope of the police power of Congress, and therefore the act is void. For reasons already given, appellant has no right to raise this cuestión. So far as the act applies to him in the present action it is valid.
Suppose, however, it is open to him to assail the act. Will it stand the test? Congress possesses.all the police power within this District that a state Legislature has within its state. Washington Terminal Co. v. District of Columbia, 36 App. D. C. 186, 191; District of Columbia v. Brooke, 214 U. S. 147, 149, 29 Sup. Ct. 560, 53 L. Ed. 941. This is not denied. The police power is a development of the law. It comprehends much more now than it did 60 years ago. Albeit a part *626of the common law, it was not known to it under that name. The thirteenth edition of Bouvier’s Law Dictionary, published in 1867, did not have it. Chief Justice Marshall seems to be the first to introduce it into the nomenclature of our law when he used it in Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678. Under this power Congress has the right “to enact laws for the promotion of the health, safety, morals and welfare of those subject to its jurisdiction.” Chi., B. & Q. R. Co. v. McGuire, 219 U. S. 549, 568, 31 Sup. Ct. 259, 262 (55 L. Ed. 328). “There is,” says Mr. Justice Hughes in the same case, “no absolute freedom to do as one wills or to contract as one chooses. The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.” A like doctrine is set forth in Crowley v. Christensen, 137 U. S. 86, 89, 11 Sup. Ct. 13, 34 L. Ed. 620, Jacobson v. Mass., 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765, and Erisbie v. United States, 157 U. S. 160, 165, 15 Sup. Ct. 586, 39 L. Ed. 657.
Congress, however, may not exercise this power except with respect to business or property clothed with a public interest. But who is to decide when property is so clothed? Manifestly this must be done in the first instance b)’- Congress. “The Legislature,” said the Supreme Court of the United States in McLean v. Arkansas, 211 U. S. 547, 548, 29 Sup. Ct. 206, 208 (53 L. Ed. 315) “being familiar with local conditions is, primarily, the judge of the necessity of such enactments.” In Clark v. Nash, 198 U. S. 361, 369, 25 Sup. Ct. 676, 678, 49 L. Ed. 1085, 4 Ann. Cas. 1171, it was ruled “that what is a public use may frequently and largely depend upon the facts surrounding the subject.” After examining many cases, both federal and state, the Supreme Court said:
“They demonstrate that a business, by circumstances and its nature, may rise from private to be of public concern and be subject, in consequence, to governmental regulation.” German Alliance Ins. Co. v. Kans., 233 U. S. 389, 411, 34 Sup. Ct. 612, 618 (58 L. Ed. 1011, L. R. A. 1915C, 1189). See, also, Chi., B. & Q. R. Co. v. McGuire, 219 U. S. 549, 509, 31 Sup. Ct. 259, 55 L. Ed. 328; Erie Railroad Co. v. Williams, 233 U. S. 699, 34 Sup. Ct. 761, 58 L. Ed. 1155, 51 L. R. A. (N. S.) 1097.
Congress, in section 122 of the act before us, found that it was—
“made necessary by emergencies growing out of the war with the Imperial German government, resulting in rental conditions in the District of Columbia dangerous to the public health and burdensome to public officers and employes whose duties require them to reside within the District, and other persons whose activities are essential to the maintenance and comfort of such officers and employés, and thereby embarrassing the federal government in the transaction of the public business.”
We must assume that this declaration was made in good faith and represents the deliberate judgment of the Congress. The Supreme Court has asserted—
*627“many times that each act of legislation has the support of the presumption that it is an exercise in the interest of the public.” Erie Railroad Co. v. Williams, supra, 233 U. S. 699, 34 Sup. Ct. 761, 58 L. Ed. 1155, 51 L. R. A. (N. S.) 1097.
The determination, therefore, by the Congress, presumably after a careful survey of all the pertinent facts, for we must assume that Congress discharged its full duty (Shreveport v. Cole, 129 U. S. 36, 42, 9 Sup. Ct. 210, 32 L. Ed. 589; Strother v. Lucas, 12 Pet. 410, 9 L. Ed. 1137; Boley v. Griswold, 20 Wall. 486, 488, 22 L. Ed. 375; Butler v. Maples, 9 Wall. 766, 19 L. Ed. 822), that rental property in this District, for the reasons set forth in section 122, was clothed with a public interest when the Ball, Act was passed, is entitled to great respect by the courts, and should not be brushed aside, except upon very conclusive proof that it has no basis on which to rest. But we were told at the bar that it had no effect, and should be treated by the court as negligible. Counsel frankly admitted that he did not have any authority for this assertion, and my studies have not revealed any.
In Antoni v. Greenhow, 107 U. S. 769, 775, 2 Sup. Ct. 91, 96 (27 L. Ed. 468), the Supreme Court declared:
“Wo ought never to overrule the decision of the legislative department of the government, unless a palpable error has been committed”
What, then, is the test by which the court is to ascertain whether this determination by Congress is sound? The Supreme Court furnishes it. In Munn v. Illinois, 94 U. S. 113, 132 (24 L. Ed. 77), it said:
“For our purposes we must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed. For us the question is one of power, not of expediency. If no state of circumstances could exist to justify such a statute, then we may declare this one void, because in excess of the legislative power of the State. But if it could, we must presume it did.”
Could there be anything plainer or more direct ? In oral argument it was urged that this statement was merely obiter. In Antoni v. Green-how, supra, after the Munn Case had been under the searching scrutiny of the bench and bar for more than six years, the court, citing the Munn Case, said:
“Jí a state of facts could exist that would justify the change in a remedy which has been made, we must presume it did exist, and that the law was passed on that account.”
The Munn decision has been cited numerous times by the Supreme Court as an authority in actions such as the one before us. Ga. Banking Co. v. Smith, 128 U. S. 174, 180, 9 Sup. Ct. 47, 32 L. Ed. 377; Budd v. New York, 143 U. S. 517, 543, 12 Sup. Ct. 468, 36 L. Ed. 247; German Alliance Ins. Co. v. Kansas, supra, 233 U. S. 409, 34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189; Brooks Scanlon Co. v. Railroad Commission, 251 U. S. 396, 40 Sup. Ct. 183, 64 L. Ed. ——, decided February 2, this year. In the Kansas Case I find this:
“Munn v. Illinois was approved in many state decisions, but it was brought to the review of this court in Budd v. New York, 143 U. S. 517, and this doc*628trine, after elaborate consideration, reaffirmed, and against tbe same arguments which are noW urged against the Kansas statute.”
Thus it is demonstrated that the' doctrine of the Munn Case is firmly imbedded in our law.
The majority say with stress that the renting of property in the District is a private business, and because of this not affected with a public interest. The same argument was advanced in the Munn and Budd Cases, supra. In both the owners of the property concerned were private individuals, doing a private business without any privilege or monopoly granted to them by the state; yet it was held, as I have shown, that their property was affected with a public interest. Speaking of the dissenting opinion of Mr. Justice Brewer in the Budd Case, in which he urged the private character of the property there involved, the Supreme Court in the German Alliance Case, supra, said:
“Every consideration was adduced, based on the private character of the business regulated, and, for that reason, its constitutional immunity from regulation, with all the power of argument and illustration of which that great judge was a master. The considerations urged did not prevail. Against them the court opposed the ever existing police power in government and its necessary exercise for the public good, and declared its entire accommodation to the limitations of the Constitution. The court was not deterred by the charge, repeated in the case at bar, that its decision had the sweeping and dangerous comprehension of subjecting to legislative regulation all of the businesses and affairs of life and the prices of all commodities.” 233 U. S. 409, 34 Sup. Ct. 618, 58 L. Ed. 1011, L. R. A. 1915C, 1189.
While in a sense contracts between landlords and tenants are private, their effects, under conditions like those enumerated by Congress in the act, go beyond the individuals to the contract, and “when this is so,” says the Supreme Court in the German Alliance Case, “there are many examples of regulation.”
The Supreme Court has approved a statute prohibiting the sale of intoxicating liquors (Mugler v. Kans., 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205); limiting the hours of employment in mines and smelters (Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780); forbidding the sale of cigarettes without license (Gundling v. Chicago, 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725); requiring the redemption in cash of store orders issued in payment of wages (Knoxville Iron Co. v. Harbison, 183 U. S. 13, 22 Sup. Ct. 1, 46 L. Ed. 55); prohibiting contracts for options to sell or buy grain (Booch v. Ill., 184 U. S. 425, 22 Sup. Ct. 425, 46 L. Ed. 623); prescribing the hours of labor for those employed by the state or its municipalities (Atkins v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. Ed. 148); permitting an individual to condemn property for the purpose of obtaining water for his land (Clark v. Nash, 198 U. S. 361, 25 Sup. Ct. 676, 49 L. Ed. 1085, 4 Ann. Cas. 1171); forbidding the employment of women in laundries more than 10 hours a day (Muller v. Oregon, 208 U. S. 412, 28 Sup. Ct. 324, 52 L. Ed. 551, 13 Ann. Cas. 957); making it unlawful to contract to pay miners employed at quantity rates upon the basis of screened coal, instead of weight of the coal as originally produced in the mine (McLean v. Arkansas, 211 U. S. 539, 29 Sup. Ct. 206, 53 L. Ed. 315); prohibiting contracts limiting liability for injuries, made in advance of *629the injury received (Chicago, etc., R. R. Co. v. McGuire, supra, 549); and regulating the rates to be charged for fire insurance (German Alliance Ins. Co. v. Kansas, supra). In each of these cases the right of private contract was involved, just as much as it is between a landlord and tenant; yet that did not deter the court from holding that the business or property was affected with a public interest and subject to regulation by the Legislature. Courts may take cognizance of whatever is or ought to be generally known within the limits of their jurisdiction. McNichols v. Pease, 207 U. S. 100, 111, 28 Sup. Ct. 58, 52 L. Ed. 121 ; Underhill v. Hernandez, 168 U. S. 250, 18 Sup. Ct. 83, 42 L. Ed. 456; 15 R. C. L. § 2, p. 1057. I believe the facts found by Congress in section 122 of the act are substantially correct. It would in truth be a bold act to deny their verity. A careful analysis of the facts in the Munn, Budd, McGuire, and German Alliance Insurance Co. Cases, supra, fails to reveal a reason more imperative for a regulatory act than that which existed when the Ball statute was enacted.
There is, then, not only the rule of Hie Munn Case, namely, that if the facts could exist they must be presumed to exist, but also the knowledge that they did exist, when the act was passed. The burden of establishing that they did not is on the person who attacks the act. Erie Railroad Co. v. Williams, supra. Not a thing has been produced to support this burden. None the less we are asked to find, and the majority have yielded to the request, that there is no truth in the congressional statement. To this I am totally unable to agree.
It seems that if the legislature, in pursuance of the police power, may regulate, as it did in the Munn Case, the charges to be made for grain, it may also regulate, in pursuance of the same power, charges to be made for housing human beings in the District of Columbia.
By the Constitution (article 1, § 8, cl. 17) the District of Columbia is made the seat of the government of the United States, and Congress is given exclusive jurisdiction over it, to the end that the government may not be embarrassed in the exercise of its functions. According to the findings of Congress in the act, a condition exists which is so dangerous to the public health and burdensome to officers and employes of the government as to interfere with them in the discharge of their duties. To say that in those circumstances Congress has not the power to ameliorate the condition is to attribute to our national government a weakness which, if it existed, would be, to say the least, unfortunate.
The decisions cited by the.majority on this point either support my position or can be easily differentiated from the case before us; but I can analyze only one (Weems Steamboat Co. v. People’s Steamboat Co., 214 U. S. 345, 29 Sup. Ct. 661, 53 L. Ed. 1024, 16 Ann. Cas. 1222), without unreasonably extending this opinion. I take that case because appellant seems to place much reliance upon it. The complainant, a steamboat company, owned wharves on the Rappahannock river. The defendants, a steamboat company and its officers, demanded the right to use the wharves without the consent of the owner upon paying a reasonable compensation. The court held that the complainant was not obliged to yield to the demands of the defendants, and an injunction issued against the latter forbidding them to interfere with complainant in the use of its property. The complainant had not offered its property for rent No statute was involved. It was an attempt by the defend*630ants- to compel the complainant to grant them a right in its private property. Nothing of that nature is involved here. Therein lies the distinction between that case and this. Property owners are not obliged to devote their property to rental purposes, but when they do, under the conditions established here, it is subject to the regulatory power of Congress.
“Looking, then, to the common law, from whence came the right which the Constitution protects, we find that when private property is ‘affected with a public interest, it ceases to be juris privati only.’ ” Munn v. Illinois, supra, 94 U. S. 126, 24 L. Ed. 77.
In the light of what has been said, I see no escape from the conclusion that the business of renting property in this District under the conditions mentioned is affected with a public interest.
Third. The fact that Congress has power to regulate does not establish by any means that it may disregard constitutional guaranties and deprive an owner of his property without due process or deny him a reasonable compensation for its use. The power is subject to constitutional limitations. As I have heretofore shown, the act under review does-not impinge on 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 courts will be open for his protection. Certain provisions may be void but that would not render the whole act illegal. Section 121 provides:
“If any clause, sentence, paragraph, or part of this title [act] shall be adjudged by any cou?t of competent jurisdiction to be invalid, such judgment Khali not affect, impair, or invalidate the remainder thereof, but shall be confined in its operations to the clause, sentence, paragraph, or part thereof directly involved in the controversy in which such judgment shall have been rendered.”
In a decision of the Supreme Court of the United States rendered March 22, this year, the constitutionality- of certain statutes of Oklahoma was considered. The statutes prescribed that a commission should fix maximum rates for services performed by a laundry company. It was provided that disobedience to an order establishing rates would be a contempt of the commission and subject the recalcitrant company to a penalty not exceeding $500 a day. No right of direct appeal to the courts from the action of the. commission fixing the rates was permitted, but the company might appeal "from a judgment finding it guilty of contempt for disobeying the commission’s order. If, however, it failed on the appeal, it might be subjected to the penalty. The Supreme Court held that “a judicial review beset by such deterrents does not satisfy the' constitutional requirements,” and therefore that the provisions of the acts imposing a penalty pending an appeal were unconstitutional in certain aspects; but that did not, in the judgment of the court, render the other parts of the acts void. It was ruled that—
“If upon final bearing the maximum rates fixed should be found not to be confiscatory, a permanent injunction should nevertheless issue to restrain the enforcement of penalties accrued pendente lite, provided that it also be found that plaintiff had reasonable ground to contest them as being confiscatory.” Okla. Operating Co. v. J. E. Love et al., 252 U. S. 331, 40 Sup. Ct. 338, 64 L. Ed. 596.
*631So here, if any of the provisions of the act before us should be found, to be offensive to the Constitution, they may fall without dragging down the. remainder of the act.
For the reasons given, I think the judgment of the lower court should be affirmed.