Opinion
Nos. 3569 and 3572
Decided December 31, 1952.
Metropolitan housing authority — Powers of eminent domain — Section 1078-34a, General Code (Section 3735.32, Revised Code) — Constitutional law — City and housing authority co-operation agreement — Low-rent housing and slum elimination project — Rezoning — Appropriation of vacant real estate outside slum area authorized — Appellee's complaint not considered where no cross-appeal filed — Enjoining payment and transfer of possession prior to rezoning.
1. Section 1078-34 a, General Code (Section 3735.32, Revised Code), conferring special authority on metropolitan housing authorities "to appropriate, enter upon and hold real estate within its territorial limits," and, in general, to exercise the power of eminent domain in the manner provided for appropriation proceedings by municipal corporations is not in conflict with Section 19, Article I of the Constitution of Ohio, and is, therefore, a valid enactment in the interest of the public welfare.
2. Where, pursuant to the provisions of Sections 1078-29 to 1078-49 a, General Code (Sections 3735.27 to 3735.50, Revised Code), and the United States Housing Act of 1937, as amended (Title 42, Section 1401 et seq., U.S. Code), a city and a housing authority enter into a co-operation agreement which provides for the servicing of a low-cost housing project by city utilities, for the rezoning of a specified area, and for the demolition of substandard dwelling units equal in number to the units proposed for the housing project, and where all steps preliminary to the institution of an appropriation action are taken, appropriation of real property and construction of the housing project is proper, is within the applicable state and federal statutes, and is not rendered invalid because such real estate is vacant and not located in a slum area.
3. In the absence of a cross-appeal by an appellee, the Court of Appeals in reviewing a case involving appropriation of land will not consider appellee's complaint made in argument and by brief concerning action of the trial court in enjoining payment of compensation and transfer of possession of such land until adequate zoning changes are made.
APPEALS: Court of Appeals for Mahoning county.
Mr. C. F. Hammon and Mr. C. J. Hoyt, for appellee in both cases.
Messrs. Manchester, Bennett, Powers Ullman, for appellant in both cases.
These cases, appealed here on questions of law, originated in the Common Pleas Court of Mahoning County. Because the actions are between the same parties and the questions presented are identical, the cases are considered together.
In case No. 3569, the Youngstown Metropolitan Housing Authority, hereinafter designated as the authority, petitioned to have a jury empanelled to assess compensation for the land which it desired to appropriate from St. Stephen's Club, hereinafter designated as the club. In that suit, the club sought to contest the right of the authority to appropriate the land under the power of eminent domain.
In case No. 3572, the club filed its petition, praying for an order permanently enjoining the authority from proceeding with the appropriation proceedings on the ground, primarily, that the authority had not the right to appropriate its property because the use to which it purported to put such property is not a public use under Section 19, Article I of the Constitution of Ohio. The injunction case was submitted on an agreed statement of facts, which is part of the record herein, it being stipulated that a transcript of the testimony taken upon the application to empanel a jury in the appropriation case shall be made a part of the record also. In each case, the trial court found in favor of the authority, holding the Ohio Housing Law to be a valid, constitutional enactment, and that the authority had the right to appropriate land of the club for the uses stated. The injunction prayed for against the authority in the appropriation proceedings was denied, but the trial court granted a limited injunction, refusing the authority permission to pay for or take possession of the land until the provisions of the co-operation agreement had been complied with in respect of rezoning the land for multiple residence purposes.
Pertinent parts of the agreed statement of facts are as follows:
The Youngstown Metropolitan Housing Authority operates and intends to operate the housing project being located on the land to be appropriated in accordance with the United States Housing Act of 1937, as amended. (Title 42, Section 1401 et seq., U.S. Code.) That act defines "low-rent housing" in Section 2 (50 Stats. at L., 888), as follows:
"The term `low-rent housing' means decent, safe, and sanitary dwellings within the financial reach of families of low income, and developed and administered to promote serviceability, efficiency, economy, and stability, and embraces all necessary appurtenances thereto. The dwellings in low-rent housing as defined in this act shall be available solely for families whose net income at the time of admission does not exceed five times the rental (including the value or cost to them of heat, light, water, and cooking fuel) of the dwellings to be furnished such families, except that in the case of families with three or more minor dependents, such ratio shall not exceed six to one."
The annual contributions contract, which had been drawn by the director of the Chicago field office of the Public Housing Administration, was submitted to, approved and executed by the Youngstown Metropolitan Housing Authority as of November 25, 1952, and was approved by the director of the Chicago field office of the Public Housing Administration, and is the contract under which the project referred to as No. Ohio 2-3 will operate.
The ordinance authorizing execution of the co-operation agreement and the co-operation agreement, are exhibits herein. The annual contributions contract, the resolution of the authority authorizing the execution of the annual contributions contract, and a copy of the development program adopted by the authority are exhibits herein.
The authority was organized under the Ohio Housing Authority Law. (Sections 1078-29 to 1078-50, General Code.)
In the appropriation case, it was decreed that all the preliminary steps entitling the authority to have a jury assess compensation under the provisions of the Code had been duly complied with, and that the authority had the right to appropriate the land described in the petition.
The St. Stephen's Club is a nonprofit organization, a corporation, and the owner of the land sought to be appropriated. The land is part of Youngstown out-lot No. 1343, consisting of approximately eighteen acres located in the vicinity of Albert and Victor streets on the east side of Youngstown, and it is now zoned as residential A. The project which the authority seeks to erect upon such land would require rezoning to residential B.
It is stipulated that the property in question is not a slum area; that it is vacant land, without any buildings whatsoever; and that the authority has submitted to the zoning commission plans and other data for the advice of the commission as provided by Section 1078-43, General Code.
It is stipulated further that the housing authority presented to the planning director, who represents the city planning commission, a complete layout or site plan, showing the street layout, the location of the buildings, existing streets, existing utilities, proposed streets and proposed utilities for the advice of the city planning commission; and that the director of that commission in turn referred the data to the city engineer, who advised the housing authority as to what to do about the width of certain streets and other matters. This was done prior to September 12, 1952.
It is stipulated further that a copy of the entry made on the hearing in the appropriation case and all exhibits referred to in the agreed statement of facts shall be received in evidence and become part of the record herein.
Two grounds of error are assigned, as follows:
1. Assuming that the question was properly before the court in the appropriation case, the court erred in finding that the housing authority had the right to appropriate the club's land, and in permitting the trial for the assessment of compensation to proceed.
2. The court in the injunction suit erred in finding that the housing authority had the right to appropriate the club's land and in refusing to enjoin the housing authority from proceeding with the trial for the assessment of compensation.
Thus, there is presented the broad question of the right of a housing authority to exercise the power of eminent domain and to appropriate land for the purpose of erecting a housing project for families in low income brackets in general conformity with the purpose and design of the controlling legislation.
Considering the first assignment of error concerning the issues raised in the appropriation case, we are of the opinion that inasmuch as it was conceded by the club that all the preliminary steps as to resolution of intent, resolution of appropriation, publication and notice to owners had been duly complied with, the only issue presented was the assessment of compensation and damages. We reach this conclusion on the authority of Emery v. City of Toledo, 121 Ohio St. 257, 167 N.E. 889; Sargent v. City of Cincinnati, 110 Ohio St. 444, 144 N.E. 132; P. C. C. St. L. Ry. Co. v. City of Greenville, 69 Ohio St. 487, 69 N.E. 976. See, also, City of Cincinnati v. Vester, 281 U.S. 439, 74 L. Ed., 950, 50 S. Ct., 360; Sears, Trustee, v. City of Akron, 246 U.S. 242, 62 L. Ed., 688, 38 S. Ct., 245; Jones v. Village of Maumee, 20 Ohio App. 455, 152 N.E. 765; Shepard Paint Co. v. Board of Trustees of Franklin County Veterans Memorial, 88 Ohio App. 319, 100 N.E.2d 248; 15 Ohio Jurisprudence, 998, Section 334.
It is our opinion, however, that although the club was erroneously permitted to contest the right to appropriate in an appropriation suit, it is not thereby barred by the doctrine of election of remedies from prosecuting the injunction suit and from a consideration of its appeal in that action by this court.
This brings us to a consideration of the second assignment of error concerning the issues raised in the injunction suit.
Section 19, Article I of the Constitution of Ohio provides in part:
"Private property shall ever be held inviolate, but subservient to the public welfare * * * [and] where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury * * *."
Section 1078-34 a, General Code, provides:
"A housing authority shall have special power to appropriate, enter upon and hold real estate within its territorial limits, and such authority is hereby authorized to acquire the fee simple title * * * in any property within its territorial limits which it shall deem necessary to appropriate for the purposes of the housing authority. Such power shall be exercised by a housing authority in the manner provided for appropriation proceedings by municipal corporations." (Emphasis added.)
At the outset, it should be observed that the club does not here challenge the constitutionality of the entire housing authority law (Sections 1078-29 through 1078-61 a, General Code), conceding in their brief that "the Supreme Court in the case of State, ex rel. Ellis, v. Sherrill, 136 Ohio St. 328, at least inferentially upheld the act when considered as a whole." However, it selects from the entire act for attack Section 1074-34 a, General Code, quoted, supra, on the ground that that section attempts to authorize the taking of private property by eminent domain for a private use, in violation of Section 19, Article I of the Ohio Constitution. In support of its argument, the club cites and quotes from Dayton Metropolitan Housing Authority v. Evatt, Tax Commr., 143 Ohio St. 10, 53 N.E.2d 896, 152 A. L. R., 223; Columbus Metropolitan Housing Authority v. Thatcher, Aud., 140 Ohio St. 38, 42 N.E.2d 437; and In re Application for Exemption From Taxation of Real Property of Cincinnati Housing Authority, 155 Ohio St. 590, 99 N.E.2d 761. In all those cases, the attention of the Supreme Court was centered upon one issue only, and that was whether property of housing authorities is "public property" and "used exclusively for a public purpose," and as such, whether it is exempt from taxation under Section 2, Article XII of the State Constitution.
In the Columbus case, decided in 1940, and in the Dayton case, decided in 1944, with two judges dissenting, the Supreme Court upheld the board of tax appeals in denying applications for exemption. In the Cincinnati case, decided June 20, 1951, the issue was changed by reason of the amendment of Sections 5356 and 1078-36, General Code, effective October 6, 1949, declaring property of housing authorities to be public property and exempt from taxation. In that case, the board of tax appeals had granted an application for exemption from taxation of the Cincinnati housing authority, and while five judges expressed the opinion that the decision of the board of tax appeals should be reversed on the ground stated, namely, that the property in question is not "public property used exclusively for any public purpose," two judges of the court did not concur in that view. Therefore, five members of the Supreme Court not being sufficient to declare Sections 5356 and 1078-36, General Code, unconstitutional, the decision of the Board of Tax Appeals was affirmed and the real property of the housing authority in question was held to be exempt from taxation.
We have reviewed these cases at some length, only because counsel for the club indicate a strong reliance upon the dicta of these cases, with special emphasis upon the Dayton case. By reason of the latest pronouncement of the Supreme Court in the Cincinnati case, supra, we think that the force of the argument is largely dissipated. However, it is our considered opinion that these tax exemption cases, so strongly relied upon, have no application to the issues in the cases here under review.
From time immemorial, sovereign states have jealously guarded rights of taxation in order to furnish revenue for support of government. In this respect Ohio has been no exception. In its constitutional provisions, its legislative enactments, and its judicial decisions, the taxing power is carefully established and strictly construed against exemption and in favor of taxation for the purpose of protecting the sovereign power of the state in the field of taxation. Hence it is, that the Supreme Court has strictly construed tax exemption statutes.
"The fact remains, however, that it is the theory of government that all property should bear its equal share of the cost and expense of government, and, since the law does not favor exemption of property from taxation, before particular property can be exempt it must clearly fall within the class of property authorized to be exempt by the Constitution. Again, since the sole power to exempt from taxation is vested in the General Assembly, except as the Constitution itself makes certain exemptions, and it has provided for the taxing of all property `except only such property as may be expressly exempted,' the accepted rule is that an exemption cannot be presumed, or implied and read into a statute; or, stated conversely, to have an effective exemption, it must be expressed in clear and unmistakable terms, or at least with reasonable certainty, as the laws relating to exemption from taxation, being in derogation of equal rights, are strictly construed as against such exemption and in favor of the taxing authorities." 38 Ohio Jurisprudence, 852, Taxation, Section 114, and cases therein noted.
We think that tax exemption cases must be clearly distinguished from appropriation cases. Despite the dicta, which at times may have been used in discussing tax exemption statutes in relation to property of public housing authorities, no such language has been used in respect of the power of eminent domain. While public bodies, such as the state, and various subdivisions thereof, frequently appropriate under the power of eminent domain for an exclusively public use, such public use purpose is not always required as a condition of the exercise of rights of eminent domain. We need only point to privately owned public utilities such as light, power, communication, and transportation companies as examples where the right of eminent domain is conferred, and where the services to the public result in profit to stockholders and bondholders. Hence, it is clear that the Constitution does not require as a condition precedent that all property taken by the conferred right of eminent domain shall be exclusively for public use. In our opinion, the case of State, ex rel. Ellis, City Solicitor, v. Sherrill, City Manager, 136 Ohio St. 328, 25 N.E.2d 844, is presently dispositive of the issues here presented. That was an action in mandamus where the city manager was directed by the court to execute a co-operation agreement with the Cincinnati housing authority, similar to the agreement in evidence in this case. Thus, the Supreme Court must have found that there was a clear duty devolving upon the city manager, a ministerial officer, to execute the agreement although he had failed to do so because of an "expressed doubt as to the validity of the action of the city council and of the constitutionality of the laws under which the council purported to act."
The court, in disposing of the case on the merits, observed that it could not be concerned with the wisdom or policy displayed by the Congress in enacting the federal housing act and concluded with a statement which appears to be all-embracing, leaving no room to doubt the constitutionality of any of its provisions, as follows:
"Since the passage of the United States Housing Act, followed by necessary and appropriate enactments in different states to take advantage of the national bounty, frequent attacks have been made upon this legislation and the steps taken thereunder as to constitutionality and on almost every other conceivable ground. Such legislation and the ensuing activities have been upheld generally by the courts, as is shown by the following representative cases, recently decided: Housing Authority of County of Los Angeles v. Dockweiler (Cal.Sup.), 94 P.2d 794; Laret Inv. Co. v. Dickmann (Mo.Sup.), 134 S.W.2d 65; Matthaei v. Housing Authority of Baltimore (Md.App.), 9 A.2d 835; Allydonn Realty Corp. v. Holyoke Housing Authority (Mass.Sup.), 23 N.E.2d 665; Stockus v. Boston Housing Authority (Mass.Sup.), 24 N.E.2d 333; In re Brewster Street Housing Site in City of Detroit (Mich.Sup.), 289 N.W. 493; Romano v. Housing Authority of the City of Newark (N. J. Sup.), 10 A.2d 181; Chapman v. Huntington, W. Va. Housing Authority (W.Va.Sup.Ct.App.), 3 S.E.2d 502. The writ as prayed for will issue."
In Blakemore v. Cincinnati Metropolitan Housing Authority, 74 Ohio App. 5, 57 N.E.2d 397, the Court of Appeals of the First Appellate District upheld the power of the housing authority to appropriate property by denying an injunction to a property owner, the action having been brought on the ground that the appropriation was not for a public use and violated the due process clause of the Federal Constitution. To the same effect is Kathman v. Cincinnati Metropolitan Housing Authority, 18 Ohio Opinions, 369, 5 Ohio Supp., 133. In those cases, the Court of Appeals and the Common Pleas Court recognized the authority of State, ex rel. Ellis, v. Sherrill, supra. Neither of those cases were appealed. We find nothing contra in Ohio.
We hold, therefore, that Section 1078-34 a, General Code, conferring the power of eminent domain upon metropolitan housing authorities is a valid constitutional enactment in the interests of the "public welfare."
It remains only to determine if the plan formulated by the authority comes within the purview of the housing acts, both state and national, and whether the judgment and discretion of the authority is being reasonably exercised within lawful limits.
The record shows that the authority proposes to erect on the land in question a housing project consisting of 304 dwelling units for the express purpose of providing sanitary housing conditions for families of low income and thereby to provide for the preservation of public health, morals, safety and welfare of the citizens of the community.
The Public Housing Administration has agreed to loan to the authority approximately $3,500,000 to be secured by bonds to be issued upon the property of the authority. The co-operation agreement entered into between the city of Youngstown and the authority, duly authorized by ordinance of the city council as an emergency measure, provides for the service of the project by the usual utilities furnished by the city and that the city co-operate in rezoning the territory so that the project may be erected with multiple-dwelling units. The co-operation agreement provides further for the demolition by the city of an equal number of substandard dwelling units, which will result in the elimination of congested and unsanitary housing conditions now existing in certain slum areas within the territory of the authority, and which meets with the requirements of the housing act in two principal purposes (1) the eradication of so-called slum areas "injurious to the health, safety and morals of the citizens of the nation," and (2) as a concomitant thereof the furnishing of low-rent dwellings to families of low income.
The record shows that all necessary conditions precedent have been complied with, and it was conceded in the appropriation case that the authority had taken all the preliminary steps prerequisite to instituting the appropriation action.
We must conclude, therefore, that the evidence shows a carefully conceived plan in conformity with the purpose and design of the controlling legislation. We think the argument advanced by the club that the authority may not proceed in this case because the land is vacant and not located within a slum area is untenable. There is no such limitation provided in the housing act. Furthermore, the Supreme Court, in the Sherrill case, supra, decided this question. See page 329, where it is stated:
"First, that money in the sum of $7,100,000 to be loaned by the United States Housing Authority to the Cincinnati Housing Authority for the construction of two low rent housing projects on vacant land." (Emphasis added.)
In the Sherrill case the Supreme Court cited in support of its decision, as one of the representative cases of other jurisdictions, Housing Authority of County of Los Angeles v. Dockweiler, 14 Cal.2d 437, 94 P.2d 794.
In that case it was held, inter alia, as disclosed by the fifth headnote in the Pacific Reporter:
"Slum clearance and public housing projects for low-income families, being public uses, warranted granting of power of eminent domain to housing authority of the county of Los Angeles and other local housing authorities * * *." (Emphasis supplied.)
In Riggin v. Dockweiler, 15 Cal.2d 651, 104 P.2d 367, decided by the Supreme Court of California in July 1940 (about five months after the Sherrill case), it was held, as disclosed by the Pacific Reporter headnote:
"The federal and state housing acts were enacted to provide for low-cost housing incidental to slum clearance, but there is no requirement that the new structures be confined to slum areas * * *." (Emphasis added.)
There remains one further question. The authority, by way of argument and brief, complains because the trial court provided by its decree in the injunction case that payment and possession should be enjoined until adequate zoning changes have been made, but provided that the "defendant may make deposit of the amount assessed with the court in order to provide the basis for an order to entitle the defendant to make the necessary zoning changes." In the absence of a cross-appeal by the authority, we do not consider that the action complained of is before us for review and, therefore, do not determine that question.
It is our conclusion, for the reasons stated, that the judgments of the trial court must be and, therefore, are affirmed.
Judgments affirmed.
SKEEL, P. J., and KOVACHY, J., concur.
SKEEL, P. J., HURD and KOVACHY, JJ., of the Eighth Appellate District, sitting by designation in the Seventh Appellate District.