15 N.Y.2d 1014 | NY | 1965
Dissenting Opinion
Rent control in New York City is no longer a war emergency measure, even though that be recited in the 1962 legislative enabling act. That recital is, as everybody knows, contrary to fact. If rent control is to be retained, it must have some other constitutional basis. The validity of rent control, as it exists today, must be tested by whether it is a legitimate form of continuing price control. It was introduced under the general price-fixing authority of the Office of Price Administration (OPA), and its administration was afterwards transferred from Federal .to State jurisdiction (cf. Teeval Co. v. Stern, 301 N. Y. 346, 357). The general price regulation under OPA was, of course, based upon the war emergency, but now that that is over and the rest of OPA has been abolished the constitutional validity of rent control has to be measured by such factors as have controlled the
We are familiar, of course, with the cases upholding the constitutionality of various aspects of war emergency rent control, such as Twentieth Century Associates v. Waldman (294 N. Y. 571); Teeval Co. v. Stern (supra); Loab Estates v. Druhe (300 N. Y. 176); Matter of Tartaglia v. McLaughlin (297 N. Y. 419); Orinoco Realty Co. v. Bandler (233 N. Y. 24), and the cases arising at or about the time of the First World War such as People ex rel. Durham Realty Corp. v. La Fetra (230 N. Y. 429); Block v. Hirsch (256 U. S. 135); Brown Holding Co. v. Feldman (256 U. S. 170). But the indisputable fact requires us to acknowledge that the emergencies which gave rise to those legislative acts have long since passed. The question is whether subsequent conditions have arisen which, for other reasons, justify the invocation of the police power to regulate rental prices in large cities. Certainly the so-called net vacancy rate (computed mainly from among controlled housing accommodations) is not adequate by itself. Other factors taken in conjunction with that and other circumstances may or may not lend support to the indefinite continuance of housing price control as they have to price-controlled milk and other items mentioned above. Even if residential rent control be constitutionally supportable in large urban centers, it would have to be done on a different basis of classification than rendering it applicable only to the holdovers from an earlier era on the theory that we are still in the emergency which gave rise to their controlled tenancies. The enabling act recites that the emergency is temporary, and so it was, but residential rent control is not temporary. • Its history belies any such assumption, and its constitutionality must be tested by the same standards as those-which are applicable to any other form of price control. Summary judgment on this record is a perfunctory manner of determining this basic issue. In other instances where the nature of the commodity and surrounding conditions have been held adequate to sustain the power, trials have generally been held. It is impossible from these affidavits and from the mere reports submitted to the New York City Council to be apprised of what is fact and what is merely alleged to be factual, or to know
The approach which it seems to me should be taken to the problem is illustrated by Nebbia v. New York (291 U. S. 502, 531, price fixing of milk); Tyson & Brother v. Banton (273 U. S. 418, theatre tickets); Power Comm. v. Pipeline Co. (315 U. S. 575, natural gas); Munn v. Illinois (94 U. S. 113, warehouses) ; Tagg Bros. v. United States (280 U. S. 420, stockyards); Sunshine Coal Co. v. Adkins (310 U. S. 381, bituminous coal act); Producers Transp. Co. v. Railroad Comm. (251 U. S. 228, pipe lines); Brass v. Stoeser (153 U. S. 391, grain elevators); Aetna Ins. Co. v. Hyde (275 U. S. 440, insurance); Old Dearborn Co. v. Seagram Corp. (299 U. S. 183, branded goods on resale); Mayo v. Canning Co. (309 U. S. 310, citrus fruits); Williams v. Standard Oil Co. (278 U. S. 235, gasoline), and Covington Bridge Co. v. Kentucky (154 U. S. 204, bridge tolls). In
Few subjects are more involved than price fixing of items which in ordinary times—not war emergencies—have been held to fall on one side or the other of the constitutional line dividing what may be price fixed and what may not. This case now before us involves price regulation of residential accommodations, similar in principle to questions of price regulation of other commodities, and I think that it should stand or fall on principles governing the validity or invalidity of price control looking toward the indefinite future rather than by summary judgment on a theory of war emergency which has long since been contrary to fact. Appellants ask for a trial. We should, I think, decide this important question on the basis of evidence after trial, with the examination and cross-examination of expert and other witnesses. If it has to be decided on summary judgment, the order appealed from should be reversed since the recital in the statute shows that it is based on a war emergency which no longer exists (Chastleton Corp. v. Sinclair, supra).
Order affirmed, etc.
Lead Opinion
Order affirmed, without costs, upon the opinion at Special Term.
Concur: Chief Judge Desmond and Judges Dye, Fuld, Burke, Scileppi and Bergan. Judge Van Voorhis dissents in the following opinion.
