Evening star., 1920-06-02

anne ndment.
Nor does this amount to the TAX
ing OF private property for public use
Plaintiff and defendant are private
citizens engaged in private business
II the government needed the use OF
this property for the better conduct
of the war. 1t had a remedy. plain and
adequate. by the exercise of the pow
er of eminent domain.
Cites Illinois Case.
THE power to fix rental rates be-
tween private individuals is not anal
ogous to nor controlled by the de-
cisions which have upheld the power
of the legislature to fix rates for
service where the owner has devoted
the business affected to . public use.
In Mum VS.; Illinois the owner of the
it to a public use in handling grain
for the public generally. The court,
upholding the power of the legisla-
ture of Illinois to fix rates for the
service thus rendered the public. an
exercise of legislative power. az fol-.
lows: To limit the rate of charge
for services rendered in a public em-
ployment, or for the use of property
in which the public has an interest.
In no case where the Legislative
power to regulate and fix rates has
been upheld has the power to continue
existing contracts in force after the
time fixed. by the parties for their
termination. or to require the owner
of the property to continue the busi-
ness. been sustained.
But in the present case, the land
lord is not only prevented from going
out of the renting business, but is re-
quired to continue it upon the terms
fixed by the act
Is Private Business.
The renting of property in the Dis
trict of Columbia is a private busi-
ness. whether the tenant be an en-
ploye of the government or not A
private business cannot be made pub
lie or impressed with a public inter-
est merely by legislative fiat. A pub
lie interest cannot be thus created, or
property rights be divested, by an ar
bitrary exercise of the police power.
In both instances, the power resides
in the judiciary to restrain the law
making power within constitutional
limitations.
Congress cannot, by a mere legis-
lative declaration, convert a private
use into a public use: nor. by such a
declaration, create an arbitrary exer-
else of the police power, or make an
act constitutional which otherwise
WOulu DC UNCONSTITUTIONAL
Powrless to Question Deeision.
Undoubtedly, in the exercise Of the
power of eminent domain. Congress
has the power to designate the public
use for which private property may
be taken. and. if found by the courts
to be. in fact. a public use. the courts
are then powerless to question the
wisdom of the legislative decision.
THE adjudicated cases likewise es-
tablish the proposition that while the
courts. have power to determine
whether the use for which private
property is authorized by the legisla-
ture to be taken is in fact a public
use. yet, if this question is decided in
the affirmative the judicial function is
exhausted; that the extent to which
such property shall be taken for such
use rests wholly in the legislative dis
cretion. subject only to the restraint
that just compensation must be made.
And the courts are not estopped by
any legislative declaration from in
quiring into the nature of the use to
determine whether it is. in fact, pub
lie or private"