Opinion
17417, 17418.
ARGUED APRIL 9, 1951.
DECIDED MAY 14, 1951.
Injunction, etc. Before Judge Edmondson. Hall Superior Court. December 20, 1951.
J. E. Palmour Jr., for plaintiffs.
Hammond Johnson Jr., Emory Robinson, Dunlap Dunlap, and W. P. Whelchel, for defendants.
1. The Housing Authorities Law of 1937 (Ga. L. 1937, p. 210), as amended by the act of 1939 (Ga. L. 1939, p. 112), does not violate article 1, section 1, paragraph 3, of the Constitution of 1945, which declares that "No person shall be deprived of life, liberty, or property, except by due process of law," because it vests in the governing body of a municipality authority to determine, from terms, conditions and procedure therein prescribed, its need for a housing authority, without making any provision for notice to the citizens and taxpayers thereof and without affording them an opportunity for a hearing on the question of such necessity; and this is true because the fact-finding power so lodged by the legislature in such governing body is a ministerial function only, and not one judicial in character.
2. Nor do said two housing acts violate article 4, section 4, paragraph 1, of the Constitution of 1945, which provides that "All contracts and agreements which may have the effect, or be intended to have the effect, to defeat or lessen competition, or to encourage monopoly, shall be illegal and void. The General Assembly of this State shall have no power to authorize any such contract or agreement."
3. For reasons stated in the corresponding division of the opinion, section 4 of the co-operation agreement between the City of Gainesville and the Housing Authority of the City of Gainesville should not be construed as an attempt by the City to delegate to the Public Housing Administration non-delegable police power; but it should be and is construed to be only an assurance from the city that it will, as it should, properly exercise that power for the purpose of abating as public nuisances unsafe or insanitary dwellings which should be eliminated by it in the interest of public welfare.
4. Section 5 of the co-operation agreement between the City of Gainesville and the Housing Authority of the City of Gainesville is not illegal for any reason assigned; and this is so because it is neither an unauthorized delegation of municipal power, nor an agreement for the future performance of ultra vires acts as contended by the plaintiffs.
Nos. 17417, 17418. ARGUED APRIL 9, 1951 — DECIDED MAY 14, 1951.
A statute known as the "Housing Authorities Law" was enacted by the General Assembly in 1937 (Ga. L. 1937, p. 210). It declares that there exist in this State unsafe or insanitary dwelling accommodations, and that persons of low income are forced to reside in such unsafe accommodations; that there is an acute shortage of safe and sanitary dwelling accommodations available at rents which persons of low income can afford, and that they are forced to occupy overcrowded dwellings, which cause an increase in the spread of disease and crime and constitute a menace to the health, safety, morals, and welfare of the residents of the State, and impair economic values, requiring excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health and safety, fire and accident protection, and other public services. The General Assembly also declared that these slum areas cannot be cleared, nor can the housing shortage for persons of low income be relieved through private enterprise, and that such slum-clearance and reconstruction of safe and sanitary dwelling accommodations for persons of low income are public uses and purposes.
The housing act of 1937 was amended by the legislature in 1939 (Ga. L. 1939, p. 112), and section 4 of the act as amended is as follows: "In each city (as herein defined) and in each county of the State there is hereby created a public body corporate and politic to be known as the `Housing Authority' of the city or county; Provided, however, that such authority shall not transact any business or exercise its powers hereunder until or unless the governing body of the city or the county, as the case may be, by proper resolution shall declare at any time hereafter that there is need for an authority to function in such city or county. The determination as to whether there is such need for an authority to function (a) may be made by the governing body on its own motion or (b) shall be made by the governing body upon the filing of a petition signed by 25 residents of the city or county, as the case may be, asserting that there is need for an authority to function in such city or county and requesting that the governing body so declare. The governing body shall adopt a resolution declaring that there is need for housing authority in the city or county, as the case may be, if it shall find (a) that insanitary or unsafe inhabited dwelling accommodations exist in such city or county or (b) that there is a shortage of safe or sanitary dwelling accommodations in such city or county available to persons of low income at rentals they can afford. In determining whether dwelling accommodations are unsafe or insanitary said governing body may take into consideration the degree of overcrowding, the percentage of land coverage, the light, air, space and access available to the inhabitants of such dwelling accommodations, the size and arrangement of the rooms, the sanitary facilities, and the extent to which conditions exist in such buildings which endanger life or property by fire or other causes. In any suit, action or proceeding involving the validity or enforcement of or relating to any contract of the authority, the authority shall be conclusively deemed to have become established and authorized to transact business and exercise its powers hereunder upon proof of the adoption of a resolution by the governing body declaring the need for the authority. Such resolution or resolutions shall be deemed sufficient if it declares that there is such need for an authority and finds in substantially the foregoing terms (no further detail being necessary) that either or both of the above enumerated conditions exist in the city or county, as the case may be." This section of the amending act also creates a State Housing Authority Board, which must approve all housing projects undertaken within the State.
As amended by the act of 1939 (Ga. L. 1939, p. 112), section 10 of the Housing Authorities Law of 1937 provides: "In the operation or management of housing projects an authority shall at all times observe the following duties with respect to rentals and tenant selection: (a) It may rent or lease the dwelling accommodations therein only to persons of low income. (b) It may rent or lease the dwelling accommodations therein only at rentals within the financial reach of such persons of low income. (c) It may rent or lease to a tenant dwelling accommodations consisting of the number of rooms (but no greater number) which it deems necessary to provide safe and sanitary accommodations to the proposed occupants thereof, without overcrowding. (d) It shall not accept any person as a tenant in any housing project if the person or persons who would occupy the dwelling accommodations have an annual net income in excess of five times the annual rental of the quarters to be furnished such person or persons, except that in the case of families with three or more minor dependents such ratio shall not exceed six to one; in computing the rental for this purpose of selecting tenants, there shall be included in the rental the average annual cost (as determined by the authority) to the occupants, of heat, water, electricity, gas, cooking range and other necessary services or facilities whether or not the charge for such services and facilities is in fact included in the rental. (e) It shall prohibit subletting by tenants." And by section 6 of the amending act of 1939, it is also provided: "That insofar as the provisions of this Act are inconsistent with the provisions of any other law, the provisions of this Act shall be controlling."
During its session of 1937, the General Assembly also enacted a statute known as the "Housing Co-operation Law" (Ga. L. 1937, p. 697). That act was also amended by the legislature in 1939 (Ga. L. 1939, p. 127), and, as thus amended, section 4 of the act is as follows: "For the purpose of aiding and co-operating in the planning, undertaking, construction or operation of housing projects located within the area in which it is authorized to act, any State Public Body may upon such terms, with or without consideration, as it may determine: (a) Dedicate, sell, convey or lease any of its property to a housing authority or the Federal Government; (b) Cause parks, playgrounds, recreational or community facilities, or any other works which it is otherwise empowered to undertake, to be furnished adjacent to or in connection with housing projects; (c) Furnish, dedicate, close, pave, install, grade, regrade, plan or replan streets, roads, roadways, alleys, sidewalks or other places which it is otherwise empowered to undertake; (d) Plan or replan, zone or rezone any part of such State Public Body; make exceptions from building regulations and ordinances; any city or town may also change its map; (e) Cause services to be furnished to a housing authority of the character which such State Public Body is otherwise empowered to furnish; (f) Enter into agreements with respect to the exercise by such State Public Body of its powers relating to the repair, closing, or demolition of unsafe, insanitary or unfit dwellings; (g) Employ (notwithstanding the provisions of any other law) any funds belonging to or within the control of such State Public Body, including funds derived from the sale or furnishing of property or facilities to a housing authority, in the purchase of the bonds or other obligations of a housing authority; and exercise all the rights of any holder of such bonds or other obligations; (h) Enter into agreements (which may extend over any period, notwithstanding any provision or rule of law to the contrary) with a housing authority or the Federal Government respecting action to be taken by such State Public Body pursuant to any of the powers granted by this Act; and (i) Do any and all things, necessary or convenient to aid and co-operate in the planning, undertaking, construction or operation of such housing projects. (j) With respect to any housing project which a housing authority has acquired or taken over from the Federal Government and which the housing authority by resolution has found and declared to have been constructed in a manner that will promote the public interest and afford necessary safety, sanitation and other protection, no State Public Body shall require any changes to be made in the housing project or the manner of its construction or take any other action relating to such construction. (k) In connection with any public improvements made by a State Public Body in exercising the powers herein granted, such State Public Body may incur the entire expense thereof. Any law or statute to the contrary notwithstanding, any sale, conveyance, lease or agreement provided for in this section may be made by a State Public Body without appraisal, public notice, advertisement or public bidding."
On its own motion, the governing body of the City of Gainesville, Georgia, on August 15, 1949, found: (a) that insanitary or unsafe inhabited dwelling accommodations existed in that city, and (b) that there was a shortage of safe or sanitary dwelling accommodations in the city available to persons of low income at rentals they could afford; and, accordingly, by proper resolution declared the city's immediate need for a housing authority under the terms, conditions, and procedure laid down by the act of 1937, as amended by the act of 1939. By the same public body the "Housing Authority of the City of Gainesville" was activated; and, pursuant to the terms of the Housing Authorities Law, C. B. Romberg, C. G. Butler, J. H. Washington, John W. Jacobs Jr., and Charles L. Hardy were selected and appointed Commissioners of the Housing Authority of the City of Gainesville and James A. Dunlap was subsequently employed as its secretary.
On December 9, 1950, Harold R. Telford and five others, as citizens and taxpayers of Gainesville, Georgia, brought a suit in the Superior Court of Hall County, Georgia, against the City of Gainesville and, also, against the several named commissioners and James A. Dunlap, the secretary of the Housing Authority of the City of Gainesville, individually, to enjoin them from proceeding further with the construction and development of certain slum-clearance and low-rent housing projects which the Housing Authority of the City of Gainesville had previously initiated for that city. For reasons which will fully appear and be dealt with in the opinion, the petition, as amended, alleges that the Housing Authority purportedly created, established, and activated for the City of Gainesville is non-existent and, therefore, not a public body corporate and politic; that the defendant commissioners and the defendant secretary who were appointed and employed, respectively, to function for it as a public body corporate and politic have no legal right or power to do so; and that all action taken and all agreements and contracts made by them as such purported commissioners for and in behalf of the non-existent and illegally activated Housing Authority for the City of Gainesville are null and void.
Besides for a rule nisi, order for service, date for hearing, process and general relief, the prayers were: 1. That the purported public body corporate and politic, the so-called Housing Authority of the City of Gainesville, be declared non-existent and, consequently, without legal status. 2. That the Housing Authorities Law of 1937, as amended by the act of 1939, be declared unconstitutional for all of the reasons alleged in the petition as amended. 3. That section 4 of a co-operation agreement, dated December 5, 1949, between the City of Gainesville and the purported, but non-existent, Housing Authority of the City of Gainesville be declared illegal, null and void. 4. That the defendants be temporarily and permanently enjoined from acting under the Housing Authorities Law of 1937 as amended and the co-operation agreement of December 5, 1949, between the City of Gainesville and the so-called, but non-existent, Housing Authority of the City of Gainesville.
The defendants by general demurrer challenged the sufficiency of the amended petition to state a cause of action for any of the relief sought. At an interlocutory hearing, the trial judge overruled the defendants' demurrer, and held that the Housing Authorities Law of 1937, as amended by the act of 1939, was not unconstitutional for any reason assigned; that section 4 of the co-operation agreement between the City of Gainesville and the Housing Authority of the City of Gainesville, in so far as it requires approval by the Public Housing Administration of any of the undertakings therein contained was illegal and void; and that the plaintiffs were not entitled to temporary injunctive relief, except as to section 4 of the co-operation agreement, and as to that the City of Gainesville was temporarily enjoined "from acting under any of the provisions contained in section 4 of the co-operative agreement, dated December 5, 1949, which require approval of the United States Public Housing Administration." To all of the rulings adverse to them the plaintiffs excepted, and by direct bill of exceptions brought their case to this court for review. The defendants also excepted to the rulings adverse to them and came up by cross-bill of exceptions.
Concededly, if the attacks made upon the constitutionality of the two Georgia housing acts of 1937 and 1939 are not meritorious, and if the co-operation agreement of December 5, 1949, between the City of Gainesville and the Housing Authority of the City of Gainesville is not invalid for the reasons assigned, the petition as amended failed to state a cause of action for any of the relief sought and, consequently, should have been dismissed on the demurrer interposed thereto. We will therefore first consider and dispose of the above-mentioned questions.
(1) The plaintiffs' first specific ground of attack is that the two Georgia acts here involved violate article 1, section 1, paragraph 3 of the Georgia Constitution of 1945 (Code, Ann., § 2-103), which declares that "No person shall be deprived of life, liberty, or property, except by due process of law." It is alleged and argued that the two acts here in question are unconstitutional because they authorize and empower the governing body of a municipality, without making any provision for notice and without providing an opportunity for hearing, to arbitrarily and conclusively find (a) that insanitary or unsafe inhabited dwelling accommodations exist in such city, or (b) that there is a shortage of safe or sanitary dwelling accommodations in such city available to persons of low income at rentals they can afford; and, upon a finding that either or both exist, declare the city's need for a housing authority, when, as in this case, neither of said conditions in fact exists. Assuming, but not holding, that the plaintiffs in this case had a right to make this attack, it is in our opinion without merit. The operation of a statute complete within itself may be made dependent upon the existence of some contingency fixed therein. 16 C.J.S. 414, § 141. And it is well understood that, while a legislature may not delegate the power to make laws, it may nevertheless delegate the power "to determine some fact or state of things on which the law may depend." 11 Am. Jur. 949, § 235. The two housing acts here involved were complete in every respect when they left the hands of the legislature. They fully created and established in and for each city of this State having a population of 5000 or more a public body corporate and politic to be known as the "Housing Authority." They provided that the public body corporate and politic so created and established was not to transact any business until the governing body of the city, under terms, conditions, and procedure laid down by the housing acts, found and declared that there was a need for it to function. The fact-finding power lodged by the legislature in the city's governing body bears only upon the question whether certain conditions exist justifying the activation of a housing authority under terms, conditions, and procedure therein prescribed, and that purely ministerial power, so vested, is in no respect judicial in character. This being true, and we hold that it is, notice of and an opportunity for a hearing upon the question of a need for activating the Authority is not required by the due-process clause of our Constitution of 1945. City of Valdosta v. Harris, 156 Ga. 490 ( 119 S.E. 625); Baugh v. City of LaGrange, 161 Ga. 80 (3) ( 130 S.E. 69); 11 Am. Jur. 945, § 232. See also Barber v. Housing Authority of the City of Rome, 189 Ga. 155 ( 5 S.E.2d 425), Hogg v. Housing Authority of the City of Rome, 189 Ga. 164 ( 5 S.E.2d 431), Cox v. City of Kinston, 217 N.C. 391 ( 8 S.E.2d 252), and Chapman v. Huntington Housing Authority, 121 W. Va. 319 ( 3 S.E.2d 502).
(2) It is also contended that the two housing authority acts involved are unconstitutional, and therefore void, because they offend article 4, section 4, paragraph 1, of the Constitution of 1945 (Code, Ann., § 2-2701), which provides that "All contracts and agreements which may have the effect, or be intended to have the effect, to defeat or lessen competition, or to encourage monopoly, shall be illegal and void. The General Assembly of this State shall have no power to authorize any such contract or agreement." No authority from any jurisdiction has been cited by counsel, or found by us, in support of this attack, and we cannot agree that the two acts here involved should be stricken down for this reason. As we construe and understand their beneficent intent and purpose, it is sufficient to say that the results accomplished by them will not defeat or lessen competition. Consequently, there is no merit in this attack upon the constitutionality of the acts in question. See Williamson v. Housing Authority of Augusta, 186 Ga. 673 ( 199 S.E. 43).
(3) Section 4 of the co-operation agreement between the City of Gainesville and the Housing Authority of the City of Gainesville is as follows: "The City agrees that subsequent to the date of initiation (as defined in the act) of each project and within five years after the completion thereof, or such further period as may be approved by the PHA, there has been or will be eliminated (as approved by the PHA) by demolition, condemnation, effective closing, or compulsory repair or improvement, of unsafe or insanitary dwelling units situated in the locality or metropolitan area of the City substantially equal in number to the number of newly constructed dwelling units provided by the project; provided, that, where more than one family is living in an unsafe or insanitary dwelling unit, the elimination of such dwelling unit shall count as the elimination of units equal to the number of families accommodated therein; and provided, further, that this paragraph 4 shall not apply in the case of (a) any project developed on the site of a slum cleared subsequent to July 15, 1949, and that the dwelling units eliminated by the clearance of the site of such project or any other low-rent housing project; or (b) any project located in a rural non-farm area." It is alleged and contended that the above-quoted section of the co-operation agreement is illegal, null, and void because, by the use of the words "as approved by the PHA," it undertook to delegate to the Public Housing Administration non-delegable municipal police power which the City of Gainesville only has a right to exercise. To this we do not agree. Over a number of constitutional attacks, we sustained the validity of a similar provision in a like contract between the City of Augusta and the Housing Authority of Augusta in the Williamson case, supra, and it is unnecessary to repeat here what was said there. It is, however, presently urged that the co-operation agreement here involved purportedly, but illegally, gives the Public Housing Administration the right to finally determine: "(a) When the dwellings mentioned will be demolished, condemned, closed, repaired or improved; (b) which, if any, of all the dwellings in said City will be eliminated, closed, condemned, repaired or improved; and (c) which of all the dwellings supposedly affected by said provision will be demolished, which condemned, which closed, which repaired or which improved." The declared purpose of the Federal Housing Act and of our State Housing Authorities Law is the elimination of unsafe or insanitary dwelling accommodations and the construction of a substantially like number of safe and sanitary dwelling units for rent to persons of low income at rentals which they can afford. Federal funds are not available to a local housing authority for the development of low-rent or slum-clearance projects involving the construction of new dwellings, "unless the project includes the elimination by demolition, condemnation, and effective closing, or the compulsory repair or improvement of unsafe or insanitary dwellings situated in the locality or metropolitan area, substantially equal in number to the number of newly constructed dwellings provided by the project; except that such elimination may, in the discretion of the Authority, be deferred in any locality or metropolitan area where the shortage of decent, safe, or sanitary housing available to families of low income is so acute as to force dangerous overcrowding of such families." 42 U.S.C.A. 1410. As the record in this case shows, the Housing Authority of the City of Gainesville has received from the Public Housing Administration a program reservation for 200 units of low-rent housing to be developed and located within the corporate limits of the City of Gainesville. That construction program calls for the elimination of a substantially like number of unsafe or insanitary dwelling accommodations and the equivalent eliminations, whether by demolition, condemnation, effective closing, or compulsory repair or improvement, must be approved by the Public Housing Administration before they can be counted as such against the quota of newly constructed units; and the City of Gainesville only has power to accomplish the eliminations where the owners of such unsafe or insanitary dwellings refuse to do so voluntarily. Properly construed, the city's agreement to co-operate with its local housing authority in effecting eliminations does not contemplate or provide for a delegation of its police power to abate nuisances to the Public Housing Administration, as contended, but amounts only to an assurance, unnecessary perhaps, of a proper exercise of it by the city to the end that it will do what it ought in any event to do, namely, eliminate unsafe or insanitary dwellings in the interest of general welfare, as it alone can lawfully do. Code, § 72-401; Wingate v. City of Doerun, 177 Ga. 373 ( 170 S.E. 226). If any other construction would lead to the conclusion that the agreement is illegal, then it should be construed as stated above, in view of the presumption that it is for a legal purpose. See Hogg v. City of Rome, 189 Ga. 298 ( 6 S.E.2d 48).
4. Section 5 of the co-operation agreement in part provides: "During the period commencing with the date of the acquisition of any part of the site or sites of any project and continuing so long as either (a) such project is used for low-rent housing purposes, or (b) any contract between the local authority and the PHA for loans or annual contributions, or both, with respect to such project shall remain in force and effect, or (c) any bonds issued in connection with such project shall remain outstanding, whichever period is the longest, the City, without cost or charge to the local authority or the tenants of such project (other than payments in lieu of taxes) shall: . . (d) Vacate such streets, roads, and alleys within the area of such projects as may be necessary in the development thereof, and convey without charge to the local authority such interest as the City may have in such vacated areas." It is alleged and urged that the above-quoted part of section 5 of the co-operation agreement is null and void because it purportedly, but illegally, undertakes to delegate municipal power, and provides for the future performance of ultra vires acts respecting control and disposition of the city's property. Manifestly and obviously there is no merit in the first of these contentions; and, since housing authorities are for a public use and purpose ( Williamson v. Housing Authority of Augusta, supra), under the broad powers given to the governing body of the City of Gainesville by the provisions of the amended co-operation act of 1937, the validity of which is not attacked by the pleadings in this case, the second contention is likewise not meritorious for the reason assigned.
It follows, from what has been held in the four divisions of this opinion, that the petition as amended did not state a cause of action for any of the relief sought; and, accordingly, the judgment overruling the defendants' demurrer is erroneous and must be reversed. And, since all further proceedings taken in the case after the demurrer was erroneously overruled are nugatory ( Clements v. Hollingsworth, 205 Ga. 153, 52 S.E.2d 465), it is unnecessary to decide any other question presented by the writs of error.
Judgment affirmed in part and reversed in part on the main bill of exceptions; and reversed on the cross-bill. All the Justices concur. Wyatt and Almand, JJ., concur specially.
We concur in the judgment only because of the unanimous decision of this court in Williamson v. Housing Authority of Augusta, 186 Ga. 673.