Hirsh v. Block

• Decision Date: 02 June 1920
• Docket Number: 3372.
• Citation: 267 F. 614
• Parties: HIRSH v. BLOCK.
• Court: U.S. Court of Appeals — District of Columbia Circuit

267 F. 614

HIRSH v. BLOCK.

No. 3372.

United States Court of Appeals, District of Columbia.

June 2, 1920

Submitted May 4, 1920.

Appeal from the Supreme Court of the District of Columbia. [Copyrighted Material Omitted]

Myer Cohen, R. D. Daniels, and W. G. Johnson, all of Washington D.C., for appellant.

Julius I. Peyser, Geo. E. Edelin, Theo. D. Peyser, and J. C. Adkins all of Washington, D.C., for appellee.

VAN ORSDEL, Associate Justice.

This is a landlord and tenant proceeding brought by appellant, Hirsh plaintiff below, in the municipal court of the District of Columbia, to recover possession of certain premises held by defendant, Block, under a three year lease, which terminated on the 31st day of December, 1919.

It appears that on November 12, 1919, the owners of the reversion, Mary A. Cushing and Isabella Varney, conveyed the property in question by deed to one Sylvan J. Luchs, who, on the same day, conveyed it in fee simple to plaintiff, Hirsh. The lease was duly assigned to plaintiff. Plaintiff authorized his agents to collect from the defendant the rent accruing to the termination of the lease, the 31st day of December, 1919, which rent was paid. On December 15, 1919, plaintiff notified defendant that he had purchased the property and would require possession at the expiration of the lease.

Defendant refused to vacate; hence this proceeding. From a judgment in favor of defendant in the municipal court, plaintiff appealed to the Supreme Court of the District of Columbia, where he filed an affidavit of merit under rule 19, in which he set forth, among other things:

'That 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 for the conduct therein of the business of retail selling of men's furnishings and similar merchandise.'

An affidavit of defense was filed by defendant, in which he denied plaintiff's right to possession of the premises by reason of the termination of the lease, claiming that under the Ball Rent Law the lease is continued in force and he is entitled to remain in possession of the premises, notwithstanding the expiration of the term fixed by the lease, and alleged that plaintiff purchased the premises and took conveyance thereof subject to the rights of the defendant under the act. It is further averred that plaintiff is required by the act to give a 30-day notice in writing, served in the manner provided by section 1223 of the District Code, which notice has not been served, though it is made mandatory under the provisions of the act. On hearing, the court denied the motion of plaintiff for judgment, and entered judgment in favor of defendant, from which this appeal is prosecuted.

This case involves the constitutionality of the act of Congress of October 22, 1919 (41 Stat. 298), known as the 'Ball Rent Law.' The act provides for the appointment of a rent commission, consisting of three persons, who are vested with absolute jurisdiction over landlords and tenants, the fixing of rents, and the continuing and making of leases within the District of Columbia for a period of two years, unless the act is sooner repealed by Congress. The only check upon the power of the commission is a restricted right of appeal to the Court of Appeals of the District of Columbia, in which 'the commission's determination shall not be modified or set aside by the court, except for error of law. ' The act provides that the appeal shall in no manner operate as a supersedeas or stay to postpone the enforcement of the determination of the commission appealed from, and, if any finding of the commission is modified as the result of the appeal, or set aside, the difference between the amount of rent pending appeal and the amount which should have been paid under the final judgment in the case may be recovered by suit in the municipal court of the District of Columbia.

The act declares rental property, hotels and apartments, 'affected with a public interest, and that all rents * * * shall be fair and reasonable; and any unreasonable or unfair provision of a lease * * * is hereby declared to be contrary to public policy. ' The commission, on complaint of either the landlord or tenant, or on its own motion, is empowered to inquire into and determine whether the terms and conditions of any lease are fair and reasonable: Provided, however, that the landlord cannot make complaint when the tenant is in possession under an unexpired lease. On hearing, if the commission finds that the rent or terms of the lease are unreasonable or unfair, it shall determine and fix a--

'fair and reasonable rent or charge therefor, and fair and reasonable service, terms, and conditions of use or occupancy. In any suit in any court of the United States or the District of Columbia involving any question arising out of the relation of landlord and tenant with respect to any rental property, apartment, or hotel, except on appeal from the commission's determination as provided in this title, such court shall determine the rights and duties of the parties in accordance with the determination and regulations of the commission relevant thereto.'

The act also provides that--

'The right of a tenant to the use or occupancy of any rental property, hotel or apartment, existing at the time this act takes effect, or thereafter acquired, under any lease or other contract for such use or occupancy or under any extension thereof by operation of law, shall, notwithstanding the expiration of the term fixed by such lease or contract, continue at the option of the tenant, subject, however, to any determination or regulation of the commission relevant thereto; and such tenant shall not be evicted or dispossessed so long as he pays the rent and performs the other terms and conditions of the tenancy as fixed by such lease or contract, or in case such lease or contract is modified by any determination or regulation of the commission, then as fixed by such modified lease or contract. All remedies of the owner at law or equity, based on any provision of any such lease or contract to the effect that such lease or contract shall be determined or forfeited if the premises are sold, are hereby suspended so long as this title is in force. Every purchaser shall take conveyance of any rental property, hotel, or apartment subject to the rights of tenants as provided in this title. ' (Section 109.)

The act then provides that the bona fide owner of rental property shall have the right of possession for his own use and occupancy upon giving 30 days' notice, as provided in section 1223 of the District Code, which notice shall contain a statement of the facts upon which it is based. In case there is a dispute between the landlord and tenant as to the accuracy or sufficiency of the statement, the matters in dispute shall, upon complaint, be determined by the commission.

The act vests the commission with power to subpoena and compel the attendance of witnesses and the production of records, to fix rental rates retroactively to take effect from the date of filing the complaint, to prescribe the procedure to be followed in all proceedings under its jurisdiction, and to prescribe standard forms of leases and contracts to be used in renting property, with the provision that any lease or contract made after the form has been prescribed, regardless of its provisions, shall be interpreted, applied and enforced by the commission, or any court of the United States or the District of Columbia, 'in the same manner as if it were in the form and contained the stipulations of such standard form.'

Heavy penalties are prescribed for the collection of rent in excess of the amount fixed by the commission, or for the collection of any bonus or other consideration in addition to the fixed rental, and the assignment of leases or subletting of leased premises at a greater rental than that paid under the lease is forbidden, except by permission of the commission.

The right of plaintiff to question the constitutionality of the act in this proceeding is assailed. It is urged that he should have pursued the remedy prescribed in the act, and, if unsuccessful, appeal. But plaintiff would be in poor position to question the jurisdiction which he had himself invoked, merely because of an adverse decision. If he should invoke the aid of the statute, and suffer defeat before the commission, he would estop himself to seek further relief on the ground of the unconstitutionality of the act. He would not be permitted to thus experiment with the law. Electric Co. v. Dow, 166 U.S. 489, 17 Sup.Ct. 645, 41 L.Ed. 1088; Wight v. Davidson, 181 U.S. 371, 21 Sup.Ct. 616, 45 L.Ed. 900; Shepard v. Barron, 194 U.S. 553, 24 Sup.Ct. 737, 48 L.Ed. 1115; Daniels v. Tearney, 102 U.S. 415, 26 L.Ed. 187; Grand Rapids, etc., Ry. Co. v. Osborn, 193 U.S. 17, 24 Sup.Ct. 310, 48 L.Ed. 598. The sole defense interposed is the present act. If it is valid, the defense is complete, since the 30-day notice required by the act was not given, and the proceedings could only be had before the commission. If the act is void, it furnishes no defense; since, under existing law, at the expiration of a time lease, no notice is required, and the proceedings to acquire possession must be brought, as in this case, in the municipal court of the District.

'An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed. ' Norton v. Shelby County, 118 U.S. 425, 442, 6 Sup.Ct. 1121, 1125 (30 L.Ed. 178).

Coming to the validity of the act, we have held in the recent case of Willson v. McDonnell, 49 App.D.C. 280, ...