Opinion
No. 170309.
1946-06-15
CITY OF COLUMBUS ex rel. FALTER v. COLUMBUS METROPOLITAN HOUSING AUTHORITY et al.
Richard W. Gordon, City Atty., and Angus M. Holmes, Asst. City Attorney, both of Columbus, for plaintiff City of Columbus. Walter R. Snider and John F. Seidel, both of Columbus, for relator John Falter.
See 68 N.E.2d 108.
Action by City of Columbus, Ohio, on relation of John Falter, a resident real estate taxpayer of the City of Columbus, Ohio, against the Columbus Metropolitan Housing Authority and others, for an injunction restraining defendants from carrying out provisions of an ordinance authorizing a temporary housing project for veterans of World War II. On defendants' motions for judgment on the pleadings.
Motions sustained.Richard W. Gordon, City Atty., and Angus M. Holmes, Asst. City Attorney, both of Columbus, for plaintiff City of Columbus. Walter R. Snider and John F. Seidel, both of Columbus, for relator John Falter.
E. W. McCormick, First Asst. City Atty., and Hugh K. Martin, Sr. Asst. City Atty., both of Columbus, for defendants Elmer A. Keller, Director of Public Service, Paul W. Maetzel, Chief Engineer, and Roy M. King, City Treasurer, of City of Columbus.
Wm. Harvey Jones, of Columbus, for Columbus Metropolitan Housing Authority.
CLIFFORD, Judge.
This is a suit for injunction brought in the name of the City of Columbus, Ohio, by the City attorney of Columbus, Ohio, upon written request of a taxpayer, pursuant to Section 71 of the Charter of the City of Columbus.
The petition alleges the corporate existence of the defendant, The Columbus Metropolitan Housing Authority, and the official qualifications of Elmer A. Keller as Director of Public Service, Paul W. Maetzel as Chief Engineer and Roy M. King as City Treasurer, all of the City of Columbus; the passage, by a two-thirds vote of the members of the Council of the City of Columubs, of Ordinance No. 104-46, which is set forth in full in the petition.
Said ordinance authorizes the Director of Public Service to enter into a contract with The Columbus Metropolitan Housing Authority by which the said Authority agrees to install, ‘maintain and operate’ not less than 400 temporary family dwelling units for veterans of World War II on sites to be provided by the City of Columbus in consideration for which the City is to pay the cost of (a) constructing necessary streets and sidewalks; (b) installing or extending utilities, including sewers, water, electricity and gas to the sites selected; (c) the liquidation of annual deficits resulting from the management and improvement of the project; (d) the removal of said temporary housing units. Said ordinance further appropriates the sum of $73,500 from public funds to carry out the purposes stated therein. The declared purpose of the ordinance is to provide ‘temporary housing units for the use of distressed families of returning veterans and servicemen of World War II.’ The petition further alleges that the City, by condemnation proceedings, acquired an 88.296 acre tract of land in Franklin Township in fee simple for public use for park purposes; that the Council of the City of Columbus, sitting as a committee of the whole, determined to locate 99 housing units on said tract for ‘the special and private use as residences by veterans of World War II’ and 17 units for ‘the special and private use as residences by veterans of World War II’ on Maryland Park owned by the City of Columbus.
The petition further alleges that there is no authority or provision under general law of the State of Ohio, or under the State Housing Law whereby the City of Columbus is authorized to acquire or use said land for the special and private purpose contemplated in the ordinance and that the use of such lands and any expenditures of funds of the City for such purposes are contrary to law. These allegations are denied by the defendants.
The petition further alleges that the defendants will, unless restrained, proceed to carry out the provisions and purposes of said ordinance and directions of City Council as to location of said housing units. The answer of the City officials alleges that the contract authorized by Ordinance No. 104-16 has been entered into by the parties and that the defendants, unless restrained by the Court, will proceed to carry out the provisions and purposes of said ordinance. The answer of the Housing Authority alleges that the contract authorized by Ordinance No. 104-46 has been duly entered into by the parties, and further alleges that it ‘will proceed to carry out each and all of the provisions of said contract with the City of Columbus as authorized by Ordinance of the City of Columbus No. 104-46’ unless restrained by the Court.
The petition concludes with a prayer for a permanent injunction against the defendants from carrying out the provisions of said ordinance, from the execution or performance of the housing project authorized by said ordinance, including the signing of any contracts, paying out of any funds, issuing of any bonds, commencing or doing any construction work, purchasing any materials in connection with said ordinance, issuing any vouchers or doing anything whatsoever pursuant to said ordinance.
At the hearing of this case the defendants made motions for judgment on the pleadings which are now before the Court for ruling.
The arguments made in support of the motions of defendants raised two principal questions of law:
1. Does the plaintiff have the capacity to maintain the action?
2. Does the petition state a cause of action against the defendants?
Section 71 of the Charter authorizes the City Attorney to apply to a Court of competent jurisdiction for an order of injunction ‘to restrain (a) the misapplication of funds of the City; or (b) the abuse of its corporate powers; or (c) the execution or performance of any contract made in behalf of the City in contravention of law or which was procured by fraud or corruption.’ The ‘application for an injunction’ sets forth the following grounds upon which injunctive relief is demanded in this case;
That there is no authority or provision under general law of the State of Ohio or under the State Housing Act wherein or whereby the City of Columbus, Ohio, is authorized to acquire and/or use the said land for the special and private purpose contemplated in said ordinance, and any use of such lands and any expenditures of funds for such purpose or purposes is contrary to law.
Broken down into its specific allegations, we find the charge, and the only charge, contained in the petition as authorized by Section 71 of the Charter, is that the City Council of the City of Columbus has authorized the Director of Service to enter into a contract on behalf of the City of Columbus whereby the City of Columbus will use the lands referred to for a purpose not authorized and contrary to law. There is no charge that the CMHA is or threatens to engage in any act which is not authorized by law, and therefore, no injunctive relief can be granted against the CMHA.
Furthermore, Section 71 of the City Charter does not authorize the City Attorney to bring an action in the name of the City of Columbus for injunctive relief against the CMHA. The right is limited by Section 71 of the City Charter to an injunction to restrain the City or its agents or officials from the abuse of its corporate powers or the execution or performance of any contract made in behalf of the City.
The Charter does not authorize an action for injunctive relief against any person or corporation except the City and the petition itself does not charge the CMHA with any of the acts specified in Section 71 of the Charter as a basis for the prayer for injunctive relief. The legality of the acts of the CMHA in relation to Ordinance No. 104-46 and the contract authorized thereby and whether it has acted within its corporate powers are not involved in this case in any respect whatever.
No action, whether under said Section 71 or under the general laws of Ohio, can be brought by a taxpayer or a private individual against the CMHA to enjoin its abuse of its corporate powers or to restrain it from executing or performing any contract on its behalf. Such action can only be brought by the Attorney General of Ohio, either in his own capacity or upon relation of another.
Section 12304, General Code, provides among other things as follows:
‘A like action (Quo Warranto) may be brought against a corporation * * * when it has misused a franchise, privilege, or right conferred upon it by law, or when it claims or holds by contract or otherwise, or whether it has exercised a franchise, privilege or right in contravention of law.’
But Section 12311, General Code, provides that such actions in quo warranto against a corporation can only be brought in the Supreme Court or in the Court of Appeals in the county in which the defendant resides or is found, or when the defendant is a corporation in the county in which it is situated or has its place of business, and that such actions must be brought by the Attorney General or Prosecuting Attorney when directed by the Governor, Supreme Court or General Assembly.
That the right to challenge the acts of a corporation is vested solely in the Attorney General, an action in quo warranto is determined in the following cases:
In the case of the State ex rel. Silvey v. Miami Conservancy District, 100 Ohio St. 483, 128 N.E. 87, where an action in quo warranto was brought in the Court of Appeals of Montgomery County, challenging the right of the District to exercise the privileges and franchises which it claimed as a body corporate, organized pursuant to the laws of Ohio. In the opinion at page 484 of 100 Ohio, at page 87 of 128 N.E., it is said:
‘The right to file an information in the nature of a quo warranto, or to institute a civil action or proceeding to arrest a usurpation of franchises, does not belong to an individual citizen. The right to institute such proceedings is in the state.
‘It is well settled that in this state a private person cannot maintain quo warranto except under the authority conferred by what is now section 12307, General Code. Under that section a person claiming to be entitled to a public office unlawfully held and exercised by another may be himdself or an attorney bring an action therefor.’
Under the laws of Ohio, the Miami Conservancy District as well as all of the recently organized conservancy districts throughout the State of Ohio, including the Muskingum Conservancy District, are bodies corporate and politic to the same extent as the CMHA. The plaintiff recognizes this fact because he alleges in his petition that ‘The CMHA is a body corporate and politic, organized and existing under and by virtue of the laws of the State of Ohio, and as such body corporate and politic is functioning in the Columbus, Ohio, area.’
See the case of State ex rel. Lindley v. Maccabees, 109 Ohio St. 454, 142 N.E. 888, 889, in which an action in quo warranto was brought by a policyholder in the Supreme Court alleging an abuse of a franchise of a fraternal insurance company by its officers.
It is there held ‘that the relator cannot bring this action in his private capacity is sustained by the case of State ex rel. v. Miami Conservancy District, 100 Ohio St. 483, 128 N.E. 87,’ and the above quotation from the decision in that case was approved and adopted.
There is another reason why the separate motion of the CMHA should be sustained and that is the fact that the petition does not charge it with any act in contravention of law.
It must be remembered that this is an action brought by a taxpayer under Section 71 of the City Charter to enjoin the officials of the City of Columbus from doing an act in contravention of law; said act being the proceeding to carry out a contract which is an abuse of its corporate powers whereby it will unlawfully disburse public funds, and is not an action to enjoin the CMHA from carrying out a contract in excess or abuse of its corporate powers. The only allegation of any act on the part of the CMHA is that it is ‘the other party’ to the contract with whom the City of Columbus has entered into a contract in contravention of law. There is no allegation in the petition that it was unlawful for the CMHA to enter into the contract in question. So far as injunctive relief against the carrying out of this contract is concerned, there is no allegation in the petition whatever that the CMHA has or will do anything in contravention of law.
This motion must be decided on the allegations of the pleadings and the converse thereto, that the Court should not base its decision on any allegations not in the pleadings. 31 Ohio Jur., p. 882; Challen v. City of Cincinnati, 40 Ohio St. 113.
A very recent decision of the Attorney General of Ohio, Opinion No. 932, dated May 11, 1946, completely supports the contention of the defendants and is particularly applicable to this case as it involves the power of a city to make an agreement with a Housing Authority for the use of cityowned land for temporary houses to be furnished by the Federal Government for the use of veterans of World War II and their families during the present housing emergency.
In stating the facts upon which this opinion is based, the Attorney General, among other things, says:
‘It is sufficient to say that the FPHA proposes to furnish and erect certain temporary dwellings on lands to be furnished either pursuant to ownership or lease by the municipality. Among other financial obligations undertaken by the municipality are the construction of adequate streets and sidewalks within the boundary of the sites; extension of all necessary utilities, including sanitary and storm sewers, water, electricity and/or gas in and along the streets within the boundaries of the site.’
The above statement indicates that the facts considered were almost identical with the facts in this case. In considering such facts, the Attorney General considers the source of the power of the municipality in meeting such a situation.
‘If we look to the statutes of Ohio relative to the powers of municipalities, as conferred by the Legislature, we will probably find no statute by which powers are explicitly conferred for the making of contracts such as the one under consideration. We do find some evidence of the attitude of the Legislature toward local expenditures for providing needed housing in certain sections of the ‘Housing Cooperation Law’ enacted in 1937. While this act related primarily to slum elimination projects and low rental housing for low income families, yet its provisions seem broad enough possibly to include the present project of temporary emergency housing.'
Then the Attorney General cites Paragraphs (a), (b), (c), (e), (f) and (i) of Section 1078-53, G.C., and then Section 1078-55, G.C. Then he says:
‘* * * For reasons which I shall state, I do not consider that reliance need be placed wholly on statutory grants.’
After reciting the former rule requiring cities to look to the statutes for legislative authority, the Attorney General continues:
‘That rule, however, has been completely destroyed by the adoption of Article XVIII of the Constitution, particularly Section 3 of that article which reads:
“Sec. 3. Powers. Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws.'
‘In Billings v. Cleveland Railway Company, 92 Ohio St. 478 [111 N.E. 155, 156] the court after referring to the Ravenna case ([Ravenna v. Pennsylvania Co.] 45 Ohio St. 118 ), said:
“The manifest purpose of the amendment in 1912 was to alter this situation and to add to the governmental status of the municipalities. The people made a new distribution of governmental power. The charter of a city which has been adopted in conformity with the provisions of article 18, and which does not disregard the limitations imposed in that article or other provisions of the Constitution, finds its validity and its vitality in the Constitution itself, and not in the enactments of the General Assembly. The source of authority and the measure of its extent is the Constitution. The powers conferred by such a charter, adopted within the limitations stated, are not affected by the general statutes of the state.”
The Attorney General then quotes from Fitzgerald v. City of Cleveland, 88 Ohio St. 338, at page 348, 103 N.E. 512, Ann.Cas. 1915B, 106 as follows:
‘The very idea of local self-government, the generating spirit which caused the adoption of what was called the home-rule amendment to the Constitution, was the desire of the people to confer upon the cities of the state the authority to exercise this and kindred powers without any outside interference.’
After citing a number of other cases, the Attorney General continues with the statement:
‘The basis of all of these decisions is that the municipality does not need to look to the General Assembly in order to exercise all powers of local self-government, but gets such powers direct from the Constitution.
‘For some years the Supreme Court held to the idea that a municipal corporation could not exercise these powers given by the Constitution until and unless it adopted a charter. [State ex rel. City of] Toledo v. Lynch, 88 Ohio St. 71 [102 N.E. 670, 48 L.R.A.,N.S., 720, Ann.Cas.1914D, 949]. However, the court in the case of [Village of] Perrysburg v. Ridgeway, 108 Ohio St. 245 , expressly overruled its former holding in this respect, and held:
“Since the Constitution of 1912 became operative, all municipalities derive all their ‘powers of local self-government’ from the Constitution direct, by virtue of Section 3, Article XVIII thereof.'
‘The grant of power in Section 3, Article XVIII, is equally to municipalities that do adopt charters as well as those who do not adopt a charter, the charter being only the mode provided by the Constitution for a new delegation or distribution of the powers already granted in the Constution.’
Thereafter, the Attorney General's opinion contains the following statement:
‘I, therefore, reach the conclusion that if provisions for relieving an acute housing shortage in a city are matters of local concern and fall within the scope of local self-government, then a municipality has power under the Constitution, and without resort to legislation by the General Assembly, to appropriate and expend money to meet that situation. I am not unmindful of the attitude of our courts in denying the right of a city to go into strictly private enterprises with the purpose of competing with private business. It was held in [City of] Cleveland v. Ruple, 130 Ohio St. 465 [200 N.E. 507, 103 A.L.R. 853], that a city could not establish and operate a garage business in competition petition with other like business privately owned. The proposition here under consideration bears no resemblance to the facts in that case. What the city proposes to do is necessitated by a real emergency affecting the health, welfare and possibly the life of some of its citizens. It is not intended as a source of profit. It competes with no private business, and by the terms of the contract it is strictly temporary.’
* * *
‘Nor do I doubt that providing emergency temporary housing for returning veterans is within the proper scope of government.’
* * *
‘If there were a statute enacted by the General Assembly, expressly authorizing municipalities to provide temporary housing for veterans or others of its citizens, or to contract with the Federal Government relative thereto, probably no one would ever raise a question whether a municipality had such authority. Is it possible that the General Assembly has power to grant what the people of the state cannot grant through their Constitution? When the Constitution says ‘all powers of local self-government’ it certainly makes an unmistakable and comprehensive grant. The power here sought to be exercised certainly falls within that broad grant of power.
‘In specific answer to your question, it is my opinion that under authority of Section 3 of Article XVIII of the Constitution of Ohio granting to municipalities ‘all powers of local self-government’, a municipality may enter into an agreement with the Federal Government whereby in order to relieve the acute housing shortage resulting from the war, the Federal Government is to provide and construct temporary dwellings for returning veterans and the municipality is to furnish certain facilities therefor and to manage such dwellings.'
The following is the syllabus of such opinion:
‘Under the authority of Section 3 of Article XVIII of the Constitution of Ohio, granting to municipalities ‘all powers of local self-government’, a municipality may enter into an agreement with the Federal Government whereby in order to relieve the acute housing shortage resulting from the war, the Federal Government is to provide and construct temporary dwellings for returning veterans and the municipality is to furnish certain facilities therefor and to manage such dwellings.'
Ordinance 104-46 does not conflict with the charter of the City of Columbus.
The charter of Columbus expressly excludes state statutes pertaining to municipalities when they conflict with city ordinances. The portion of Section 1 of the Columbus charter has no application to plaintiff's contention because that only provides that when the city has not, by ordinance, provided as to any power, such power shall be exercised as prescribed by the general laws of the state. But the City Council, by enacting the Ordinance 104-46, has made provision as to the particular power. Hence, the general laws of the state would have no application.
The Court calls attention to the following sections of the Columbus Charter:
‘Sec. 232. All general laws of the state applicable to municipal corporations, now or hereafter enacted, and which are not in conflict with the provisions of this charter, or with ordinances or resolutions hereafter enacted by the city council, shall be applicable to his city; provided, however, that nothing contained in this charter shall be construed as limiting the power of the city council to enact any ordinance or resolution not in conflict with the constitution of the state or with the express provisions of this charter.’
‘Sec. 2. The enumeration of particular powers by this charter shall not be held or deemed to be exclusive, but in addition to the powers enumerated herein, implied thereby or appropriate to the exercise thereof the city shall have, and may exercise all other powers which, under the constitution and laws of Ohio, it would be competent for this charter specifically to enumerate.’
From such sections it is obvious that this ordinance is clearly within the constitutional power of the city, even though it conflicts with state statutes applicable to municipal corporations.
Even disregarding such argument, the ordinance was clearly in conformity with the provisions of the State Housing Law (Sections 1078-1 to 1078-61a, G.C.) and not in contravention of it.
The argument adduced by plaintiff in its memorandum hinges entirely upon the definition of the words ‘housing projects,’ and is predicated upon the definition of those words as given in Section 1078-49, G.C., but the definition as given under the ‘Housing Cooperation Law’, which is a subdivision of the State Housing Law, is different, which makes the law applicable to the situation in this case.
Plaintiff contends that there are only two purposes for the State Housing Law, (1) to make provision for housing families of low income, and (2) to eliminate slum areas. It quotes Sec. 1078-2 of the General Code as authority for that contention. But said section, after stating the necessity to make provision for housing families of low income, then states as a separate and additional necessity, ‘to provide for the elimination of congested and unsanitary housing conditions which exist in certain areas of the state and which are a menace to the health, safety, morals, welfare, and reasonable comfort of the citizens of the state.’ In the next sentence, in addition to saying that providing of such housing for families of low income is now impossible, it also says ‘and the correction of these conditions in such areas being now otherwise impossible.’ This obviously refersback to the additional purpose of eliminating congested housing conditions. It then provides, each as a separate and distinct purpose, ‘that provision be made for the investment of private funds at low interest rates, the acquisition at fair prices of adequate parcels of land, the construction of new housing facilities under public supervision in accord with proper standards of sanitation and safety and at a cost which will permit monthly rentals which wage earners can afford to pay, and for the gradual demolition of existing unsanitary and unsafe housing.’ After reciting all of these purposes,and it will be observed that the terms ‘slum clearance’ are not used and that it is not limited to the housing of families of low income but is also to provide for the elimination of congested housing conditions, the section then proceeds to say, ‘therefore, there are created and authorized the agencies and instrumentalities hereinafter prescribed which are declared to be the agencies and instrumentalities of the state for the purpose of attaining the ends herein recited, and their necessity in the public interest is hereby declared as a matter of legislative determination.’ Certainly the existence of a housing shortage emergency gives rise to congested housing conditions and therefore any effort to solve the housing shortage emergency is an effort in the elimination of congested housing conditions and is in the interest of the health, safety, morals, welfare and reasonable comfort of the citizens.
Section 1078-3, G.C., which is a part of the State Housing Law, creates the State Board of Housing and Section 1078-5 sets up the conditions under which the Housing Board shall approve any housing project. The very provisions of this section show clearly that such projects are not limited to slum clearance or to low income groups for this section clearly covers housing projects as proposed by limited dividend housing corporations incorporated under this act which have no relationship to slum clearance or the use of such projects by low income groups. Certainly, if the entire act is solely for the two purposes mentioned by plaintiff, all of these provisions would have no place in this State Housing Law. They serve to show that the State Housing Law is much broader in its purpose than plaintiff has contended.
Section 1078-7, G.C., clerarly empowers the Board to determine in what areas congested housing conditions constitute a menace to the welfare and reasonable comfort of the citizens and to take various steps with regard to correcting such conditions, and particularly to ‘(g) cooperate with local housing officials and planning commissions or similar bodies in cities and other localities in developments of projects they at any time may have under consideration.’
It will be observed that this section contains no limitation to low income groups nor does it use the term ‘slum clearance.’ It relates solely to the determination and correcting of ‘congested and unsanitary housing conditions' and it expressly authorizes cooperation of the Board with local housing officials in cities in the development of projects that they at any time may have under consideration. This sub-section clearly states the broad general purposes of the Housing Act.
It is thus clear that the State Housing Law serves other express purposes than merely the matter of slum clearance and the furnishing of houses of low income groups. It expressly provides for the elimination of congested and unsanitary housing conditions. Certainly a housing shortage emergency necessarily gives rise to such congested and unsanitary living conditions with its effect city wide. The ordinance and contract in question are to meet that purpose and are, therefore, clearly within the purpose and authority of the State Housing Law.
A part of this entire law, commencing with Section 1078-51, is designated as the ‘Housing Cooperation Law.’ This act relates to the situation in this case because is applies to cooperation between the Housing Authority and the City of Columbus. The applicable definition of ‘housing project’ is therefore the definition contained in this sub-section and not that contained in Section 1078-49 as quoted by plaintiff in its memorandum. We quote the following definition as given in paragraph (b) of this sub-section 52:
“Housing project' shall mean any work or undertaking of a housing authority pursuant to the housing authority law or any similar work or undertaking of the federal government.'
From this definition, it is obvious that any undertaking of the federal government for any sort of housing projects brings such undertaking within the purview of housing projects as used in this entire law.
This brings up the matter of the Lanham Act of Congress and particularly with reference to Title V of that Act, as expressly referred to in the ordinance in question.
Congress, by Act effective October 14, 1940, 54 U.S.Statutes at Large, page 1125 et seq., c. 862, as amended July 7, 1943, c. 196, Sec. 4, 57 U.S.Statutes at Large, page 388, 42 U.S.C.A. § 1521 et seq. and § 1553, provided for temporary housing for persons engaged in national defense activities and their families in those localities in which the President shall find an acute shortage of housing. The Federal Works Administrator was authorized thereby to provide such temporary housing and to enter into agreements concerning the same. The Act further provided that within two years after the President should declare the housing shortage at an end, such temporaty houses should be reduced to panels and thus disposed of.
On June 23, 1945, an amendment to such statute was enacted by Congress and is known as ‘Title V,’ Public Law 87-79' Congress, c. 192, 59 U.S.Statutes at Large, page 260, 42 U.S.C.A. § 1571 et seq. This Act states that it is to amend the Act entitled ‘An Act to expedite the provisions of housing in connection with national defense, and for other purposes,’ approved October 14, 1940, as amended. It then provides the amendment which we quote in full as follows:
‘Title V.
‘Housing for distressed families of servicemen and veterans with families.
‘Sec. 501. In those areas or localities where the Administrator shall find that an acute shortage of housing exists or impends and that, because of war restrictions, permannent housing cannot be provided in sufficient quantities when needed, the Administrator is authorized to exercise all of the powers specified in titles I and III of this Act, subject to all of the limitations upon the exercise of such powers contained in such titles, to provide housing for distressed families of servicemen and for veterans and their families who are affected by evictions or other unusual hardships (where their needs cannot be met through utilization of the existing housing supply, including housing under the jurisdiction of the Administrator): Provided, That any housing constructed under the provisions of this title V shall be undertaken only where the need cannot be met by moving existing housing and shall be of a temporary character subject to the removal provisions contained in title III of this Act: And provided further, That the Administrator shall fix fair rentals for housing constructed or made available pursuant to this title V which shall be within the financial reach of families of servicemen and veterans with families.
‘Sec. 502. To carry out the purposes of this title V, and for administrative expenses in connection therewith, any funds made available under title I of this Act are hereby made available.
‘Sec. 503. As used in this title V the term ‘families of servicemen’ shall include the family of any person who is serving in the military or naval forces of the United States, and the term ‘veteran’ shall include any person who has served in the military or naval forces of the United States during the present war and who has been discharged or released therefrom under conditions other than dishonorable.'
As reference to this Title and Act was incorporated in the ordinance, and as the petition recites that the defendant Authority is functioning in Columbus in conjunction and under contract with the Federal Public Housing Authority organized and existing by virtue of such Title V of the Lanham Act, it is perfectly clear that this temporary housing project for veterans of World War II has been approved by the Federal Government as one of the projects within the purview of Title V of the Lanham Act. In view of the language above quoted from Paragraph (b) of Section 1078-52, G.C., it is perfectly obvious that this is an undertaking of the Federal Government and therefore that it is a ‘housing project’ within the meaning of the ‘Housing Cooperation Law.’ This, accordingly, brings it within the purview of that law and also within the purview of the general State Housing Law.
This view is further strengthened by Paragraphs (c) and (d) of Section 1078-34, G.C., which is part of the State Housing Law but not a part of the Housing CooperationLaw. This section states the powers of the Housing Authority, and we quote Paragraphs (c) and (d):
‘c. To borrow money or accept grants or other financial assistance from the federal government for or in aid of any housing project within its territorial limits, to take over or lease or manage any housing project or undertaking constructed or owned by the federal government, and to these ends, to comply with such conditions and enter into such mortgages, trust indentures, leases or agreements as may be necessary, convenient or desirable; and
‘d. To do all things necessary or convenient to carry out the powers expressly given in this act.’
This clearly gives The Columbus Metropolitan Housing Authority the power to enter into the agreement, as provided in the ordinance, with the City of Columbus for this temporary housing project for veterans of World War II, because of the provisions of Title V of the Lanham Act, as above given, and because temporary houses are to be constructed and owned by the Federal Government, and because, under this ordinance, the Housing Authority is to manage such housing project.
Thus this section clearly authorizes the Housing Authority to enter into the agreement with the City and the Housing Cooperation Law, as given above, authorizes the entering into of such agreement by the city as a ‘state public body.’ This is particularly true because the term ‘federal government,’ as used in Paragraph (b) of Section 1078-52, is defined in Paragraph (e) of the same section as follows:
‘(e) ‘Federal government’ shall mean the United States of America, the federal emergency administration of public works, or any other agency or instrumentality, corporate or otherwise, of the United States of America.'
Certainly the Federal Public Housing Authority, in conjunction with whom and under contract with whom The Columbus Authority is undertaking this project, is such an agency or instrumentality of the United States of America and therefore such undertaking is an ‘undertaking of the federal government’ as stated in Paragraph (b) thereof.
This sub-section 53 is a part of the Housing Cooperation Law and the definition of its terms are those given in the preceding sub-section 52 and not those given in subsection 49 as quoted by plaintiff, as such section is not a part of the Housing Cooperation Law. With this thought in mind, said sub-section 53 authorizes ‘any state public body’, which includes a city, to cooperate with the Housing Authority in undertaking or operating of housing projects, which include temporary projects for the veterans of World War II, as provided in Title V of the Lanham Act, and in so doing, authorizes the city (a) to convey or lease any of its property to the Housing Authority; (b) to cause water, sewer or draninage facilities or other works to be furnished in connection with such housing projects; (c) to furnish, pave, install streets, sidewalks; (e) to enter into agreements with the Housing Authority with respect to the action to be taken by the city pursuant to any of the powers therein granted; (f) to do any and all things necessary or convenient to cooperate in the undertaking, construction of such housing projects; (i) to incur the entire expense of public improvements on such projects.
As a part of (i) is the following provision:
‘Any law or statute to the contrary not-withstanding, 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.’
In the light of the provisions of the Housing Cooperation Law with reference to housing projects undertaken by the Federal Government, and in the light of the project for veterans as provided in Title V of the Lanham Act, this clearly means that any sale, conveyance, lease or agreement, such as that authorized by the ordinance in question under said Title V of the Lanham Act, may be made by the city without appraisal, public notice, advertisement or public bidding. It does not mean the limited construction placed upon it by plaintiff in its brief. It in fact, makes unnecessary the compliance by the city with Section 3699 of the General Code, if that section has any application whatsoever to the asserting of its power by the city under the Home Rule Amendment.
These statute, both state and federal, clearly show that the City of Columbus was authorized by the State Housing Law, and particularly by the subdivision of it known as the ‘Housing Cooperation Law’, to enter into the agreement with The Columbus Metropolitan Housing Authority as provided in Ordinance 104-46.
The Ordinance 104-46 and the contract entered into pursuant thereto do not constitute an unlawful diversion of public property and public funds to private uses.
The argument and citations given by plaintiff on the matter of dedication and condemnation do not concern this case in which all land involved is held by the city in fee simple and without any dedication to any purpose whatsoever. The purpose asserted in the condemnation proceedings imposes no limitation upon use after acquiring the title in fee simple.
‘It is averred in the fourth defense that the city of Akron acquired the real estate deeded by it to the state by appropriation proceedings, for the use of the corporation for public halls and officer, and not for the purpose of donating the same to the state of Ohio. That the city did not intend to use the land appropriated for municipal purposes would have been a good defense by the owner in the appropriation proceedings, if sustained by the evidence, but it is no longer a question of importance. The city did not appropriate a mere easement in this property. It appropriated and paid for a fee-simple estate therein.’ State ex rel. v. Turner, 93 Ohio St. 379, at page 386, 113 N.E. 327, 329.
The ordinance in question and the contract made pursuant thereto are clearly within the power of the city to meet the public housing emergency.
The city owns title to both tracts in fee simple without condition. This is admitted in the pleadings.
‘When fee is taken.-When an absolute fee simple is appropriated, the public use may be abandoned or the land devoted to a different use without extinguishing the rights appropriated or effecting a reversion to the former owners.’ 15 O.J. Sec. 422, p. 1079; State ex rel. v. Turner, supra.
‘* * * and the Legislature having used the words ‘absolute estate in fee simple,’ it is apparent that it was the purpose and intent of this legislation to provide that an absolute estate in fee simple should be acquired by a municipal corporation, with the right to dispose of it according to law for public or private uses as it may deem best suits the needs of such municipality, and to thus definitely settle the question of the kind of a fee a municipal corporation acquires in appropriation proceedings, unless a lesser estate is asked for in the application. White v. City of Cleveland, 14 Ohio Cir.Ct.R., N.S., 369 .' Pifer v. Board of Education, 25 Ohio App. 469, at page 474, 159 N.E. 99, at page 100.
‘When land has been acquired for the public use in fee simple unconditional, either by the exercise of the power of eminent domain or by purchase, the former owners retain no right in the land, and the public use may be abandoned or the land may be devoted to a different use without any impairment of the estate acquired or any reversion to the former owners.’ 10 R.C.L., Sec. 202, p. 240.
It is so obvious as to need no supporting authority that a city may use its property for proprietary as distinct from public or governmental purposes. In acting in such proprietary capacity the city is not required to keep its property so used open for the use of the entire public indiscriminately.
In State ex rel. v. City of Cleveland, 125 Ohio St. 230, 181 N.E. 24, 86 A.L.R. 1172, the relator, as a mamber of the public, sought to require the municipally owned music hall to be leased to him for presenting a theatrical performance on the theory that it was public property. The writ was denied, the Supreme Court saying (125 Ohio St. at page 234, 181 N.E. at page 25, 86 A.L.R. 1172):
‘This public music hall is devoted to no governmental purpose, and is not employed in carring on or maintaining any governmental function.’
The law of the case is stated in the syllabi:
‘1. A municipality, in so far as it acts in a proprietary capacity, possesses the same rights * * * and regulations as other like proprietors.
‘2. A public hall or assembly room owned by a municipality is in no sense a public utility, and the rental, use and occupancy thereof are within the power and control of the municipality acting through its public officers to whom such duties and powers have been duly delegated.’
In oral argument, defendants cited City of Cleveland v. Lausche, Mayor, 71 Ohio App. 273,49 N.E.2d 270, and plaintiff in oral argument sought to dispose of that case by stating that the operation of a zoo was a public function. However, plaintiff, in its brief, takes the position that the contract with the Housing Authority to ‘maintain and operate’ the units constitutes a private use by another corporation and amounts to a divesting of the public use and a grant of an estate to such authority and the lending of the municipal credit to it. Such contentions are clearly disproven by the Cleveland zoo case. We quote the second syllabus:
‘The manner of operating such zoological garden is a matter that comes within the sound discretion of the legislative branch of the city. And where it is determined by the city council by resolution that a nonprofit corporation, which has been organized to encourage the study and promote the sciences of natural history, is in a position to render a valuable public service in directing the operation of such zoological garden, the council has the power to employ the services of such corporation for that purpose and in so doing does not delegate a municipal power to a private corporation and does not thereby lend the credit of the city in the interest of a private enterprise.’
As to the particular power of the city to enter into a contract with the Housing Authority organized under the Ohio law, we cite State ex rel. v. Sherrill, 136 Ohio St. 328, 25 N.E.2d 844, in which the Supreme Court ordered the Cincinnati City Manager to sign the contract as directed by ordinance of the council. We quote from 136 Ohio St. at page 331, 25 N.E.2d at page 846:
‘If a plan as formulated by a local authority comes within the purview of the housing act and meets the approval of the National Housing Authority, whereby it is willing to lend federal funds in furtherance thereof, a court may not interfere.’
That the contemplated use of the land is for a direct public benefit in the housing shortage emergency and not a diversion of municipal use, and that the ordinance is not invalid as ‘class legislation,’ is held in two recent cases, copies of the opinions in such cases having been furnished to the Court. They are Hyland et al. v. City of Eugene (Circuit Court Lane County, Oregon) and Griffith v. City of Los Angeles (Superior Court Los Angeles County, Calif.). In those cases there was dedication to a specific public use-parks and playgrounds-and the Court held there was no diversion. In the case at bar, the power of the city is much clearer because here the title of the city is in fee simple and there has been no dedication.
It should also be observed that the installation of the utilities by the city upon the lands here in question is not in derogation but in furtherance of the use of such lands as parks and playgrounds. The temporary use of a portion of such lands for these housing units, therefore, does not constitute an abandonment of the use for parks and playgrounds but is part of the preparation of such lands for such use and augments such use.
It should be stated with regard to the so-called class legislation theory that such theory invokes the Fourteenth Amendment to the United States Constitution which prohibits states only from making unreasonable and arbitrary class distinctions. The Fourteenth Amendment limits state power only and does not restrict the United States. But such amendment does not forbid class legislation by states if it is reasonable and not arbitrary.
‘The policy, wisdom, or expediency of legislative classification is not subject to judicial question or review unless the classification is manifestly arbitrary or unreasonable, but whether or not such a classification is purely arbitrary or is reasonable and within the legislative discretion is, in controverted cases, a subject for judicial review and determination.’ 16 C.J.S., Constitutional Law, § 154, p. 489.
Certainly the limitation of this use to distressed veterans of World War II and their families is not a limitation to an unreasonable or arbitrary class. These servicemen returned and are returning from the service during the housing shortage without adequate opportunity to guard against its effect upon them. Their very return from war service, coupled with the lack of housing materials due to the war, has created the housing emergency. Providing them with temporary houses reduces the general demand for houses and thus facilitates the housing of others not in the class. The Oregon and California cases above cited clearly hold that such limitation does not make the legislation invalid as so-called ‘class legislation’, for those two states were bound by the Fourteenth Amendment.
Emergency gives validity to the exercise of governmental power which might, in the absence of such emergency, be invalid. And, as was stated in both the California and Oregon cases, the Court may take judicial notice of an emergency arising from housing shortage.
‘Emergency legislation. Legislation may be enacted under the police power, in seasons of emergency, which would not be appropriate at other times, but emergency does not justify destruction. The actual existence of the emergency and not the limitation of the law's operation to a prescribed period, gives validity to an exercise of the police power, and, when the emergency ceases to exist, the operation of the statute will be arrested, even though the prescribed term of its operation may not then have expired.’ 16 C.J.S., Constitutional Law, § 195, pp. 564 and 565.
The power of the city to enact this ordinance and to make the contract pursuant thereto with the Housing Authority exists not only because of the power derived from the Home Rule Amendment to the Ohio Constitution, but also because of the State Housing Law (Sections 1078-1 to 61a, G.C. as amended) and particularly because of the Housing Cooperation Law.
Thus there can be no question of the power of the city to enact Ordinance 104-46 and to make the contract with the Housing Authority pursuant thereto, whether such power be derived from the Home Rule Amendment of the Constitution or from statute of the state; of the power of the city to locate such temporary housing units on the land held by it in fee simple, for the period of the existing housing emergency and to have them under the management of the Housing Authority, for the use of the class most affected-Veterans of World War II; of the power of the city to make the necessary installations of utilities for the use of such emergency project at the expense of the city; and even of the power to donate its public funds to the Housing Authority for such purpose, if any such donation is contemplated or necessary.
It is an emergency measure and will augment rather than impair the use of the land for park and playground purposes. By housing the veterans it will aid in the solution of the housing shortage for the benefit of the general public. Its commendable purpose should not be destroyed with resulting public injury during the emergency, by the exercise of the extraordinary remedy of permanent injunction.
The motions of the defendants for judgment on the pleadings herein are well taken and both should be sustained. Entry may be drawn in accordance with the Court's decision.