Summary
In Emerson v. Southwest Georgia Housing Authority, supra, we held that an allegation in substantially the same language was a mere conclusion, and did not show that the statutes were being violated.
Summary of this case from Stegall v. Southwest Ga. Housing AuthorityOpinion
14658.
OCTOBER 7, 1943.
Petition for injunction. Before Judge W. E. Thomas. Brooks superior court. July 3, 1943.
Wallace E. Harrell, for plaintiff.
Frank L. Forester, for defendant.
1. In order for a constitutional attack to be valid, the statute which the party challenges and the particular provision of the constitution alleged to have been violated must be clearly specified, and it must also be shown wherein the statute violates such constitutional provision.
2. It not being alleged in the petition that as a matter of fact no slum area exists in the territory of the Regional Housing Authority, or that the activities of the Authority complained of do not in fact concern a slum area, the averments (a) that the property sought to be exempted is not public property, (b) that the project does not provide for the clearance of slums except by the agreement of the farmer that he will demolish a substandard house, (c) and that certain low income families are to be given priority in the occupancy of houses over other low-income families, there being no charge that such is to be done by the Housing Authority arbitrarily, show no right in the plaintiff, a citizen and taxpayer, to enjoin the Housing Authority from constructing the project, or to attack the validity of carrying out the contracts made by the Housing Authority pursuant to the housing-authorities law.
No. 14658. OCTOBER 7, 1943.
R. W. Emerson, a citizen and taxpayer of Brooks County, brought suit against Southwest Georgia Regional Housing Authority, organized under the housing-authority law of 1937 (Ga. L. 1937, p. 210), as amended by the act of 1939 (Ga. L. 1939, p. 112), and by the act of 1943 (Ga. L. 1943, p. 146). It was alleged, that before the date of the approval of the act last cited the County of Brooks and ten other named counties each was duly created and organized as a County Housing Authority pursuant to the act of 1937 as amended by the act of 1939; that each of said county authorities had entered with the U.S. Housing Authority into contracts whereby the U.S. Authority agreed to make loans to said County Housing Authority for the purpose of financing ninety per cent. of the cost of construction of homes for farmers of low income, and for their tenants, share-croppers, and wagehands of low income, etc.; and that pursuant to said loan contract each of the county authorities borrowed from the U.S. Housing Authority $487,500. The petition recites the contents of the agreement so entered into. After the approval of the act of 1943, cited above, the Commissioners of Roads and Revenues of each of the eleven contiguous counties adopted resolutions wherein it was determined, (a) that insanitary and unsafe inhabited dwelling accommodations existed in each county, (b) that there was a shortage of safe and sanitary dwelling accommodations in each county available to persons of low income at rentals they could afford to pay, (c) that one Regional Housing Authority for the contiguous counties would be a more efficient and economical administrative unit than one Housing Authority for each of said counties, and (d) that there was a need for one Regional Authority to be created, to exercise in said counties the powers and other functions described in the housing-authorities law; and that said resolutions were adopted pursuant to a public hearing after notice of said hearing had been given by the clerk to each of said counties for at least ten days before the date of said public hearing, in a newspaper published in said county; that the governing bodies of each of the county authorities adopted resolutions consenting to the dissolution of each of the said county authorities, and the substitution therefor of one Regional Housing Authority to function in said counties, and consenting to the transfer of all their rights, contracts, agreements, obligations, and real and personal property to the Regional Authority, to be effective as and when such Regional Authority had been duly organized pursuant to said law. Said resolutions recited that the holders of the notes had consented in writing to the substitution of the Regional Authority for the county authorities.
Other allegations were, that the board of commissioners adopted resolutions wherein one member from each of said counties was appointed as a commissioner for the Regional Authority, as prescribed by the act, which appointments were approved in writing by the State Director of Housing; that the Commissioners of said Regional Authority met and duly organized under the name of "Southwest Georgia Regional Housing Authority," and purported to assume all of the outstanding obligations and contracts of the county authorities, and to be vested with all of the powers and functions set forth in said housing-authorities law, and proposed to construct certain dwelling units, and to enter into similar contracts with other farmers. There was no denial that the insanitary and unsafe inhabited dwelling accommodations existed in the territory involved.
The following contentions were made in the petition:
"That all of the proposed acts, including those already performed by the county authorities and those to be performed by the regional authority, are and will be illegal, invalid, and unconstitutional; for
"1. The proposed scheme of building houses in rural communities is not for a public purpose, and is in reality for the private purpose of certain landowners and tenants in violation of the aforementioned housing-authorities law as amended, and is not authorized by said law, and, if authorized by said law, is in violation of the constitution of the State, in that public moneys are being expended for private purposes.
"2. That the property acquired by said defendant and to be acquired is not exempt from taxes as `public property,' nor is it exempt from taxes as being property belonging to `institutions of purely public charity' within the meaning of article 7, section 2, paragraph 2, of the constitution.
"3. That said low-income families are given priority in the occupancy of the homes comprising the project, over other low-income families, because they are tenants or tenant-farmers or wage-earners and selectees of the farmers, and, as such, amounts to an illegal and unlawful discrimination in favor of these tenants, in violation of the State and Federal constitutions.
"4. That said project does not provide for the clearance of slums except by the agreement of the farmer, and that he will demolish a substandard house located on his farm, and does not constitute a clearance of slums within the meaning of the housing-authorities law, as amended.
"5. That the issuance of said bonds and notes is unlawful, and that they are not issued for a public purpose nor a charitable purpose, nor for public property, within the meaning of said housing-authorities law and the constitution of Georgia."
The prayers were, that the said housing-authorities law "in so far as it authorizes rural housing by the defendant Regional Housing Authority, be declared null and void;" that the proposed actions as set out in the petition be declared invalid and unconstitutional; that the authority be enjoined from constructing the project, from entering into additional contracts with farmers, from issuing bonds and notes, and from carrying out the contracts made by the county authorities, the same to be declared null and void; that the real and personal property of the Regional Authority be declared subject to taxation; that the bonds and the income derived therefrom be declared subject to taxation; and for general relief.
A general demurrer to the petition was sustained; and the plaintiff excepted.
1. The record does not properly present for decision the constitutionality of any of the housing-authority acts referred to in the petition, or the validity of any portion thereof. No specific provision of the constitution is alleged to have been violated, nor is it shown wherein the statute violates any such provision. Abel v. State, 190 Ga. 651 ( 10 S.E.2d 198). Therefore we can not enter upon the inquiry whether the housing-authorities law, in so far as it authorizes rural housing by the Regional Housing Authority, should be declared null and void. The case must be treated as if the several provisions of these acts are valid, including the definition of "slum" as "any area where dwellings predominate which, by reason of dilapidation, overcrowding, faulty arrangement or design, lack of ventilation, light, or sanitary facilities, or any combination of these factors, are detrimental to safety, health, and morals," whether in a city or in a rural area.
2. It is not alleged in the petition that as a matter of fact no slum area exists in the territory of the Regional Authority, or that the activities of the authority complained against do not in fact concern a slum area. In the absence of a valid attack on the constitutionality of the act, the allegation that the proposed scheme of building houses in rural communities is not for a public purpose raises only a question as to the construction of our statute; and for the same reason the further allegation that the same is in reality for the private purpose of certain landowners and tenants, in violation of the law, raises no issue, provided the authority is proceeding to apply the provisions of the law to a situation contemplated by the law; and there is no allegation to the contrary. Likewise the allegation that the property is not exempt from taxes as "public property," or exempt as belonging to "institutions of purely public charity," states a mere conclusion of law, no facts being alleged to support it. The allegation that certain low-income families are to be given priority in the occupancy of the houses comprising the project, over other low-income families, is not a charge that one or more was arbitrarily to be given preference over another; and for that reason it affords no basis for the contention that it amounts to an unlawful discrimination, even if the plaintiff, in the absence of an allegation that he, although entitled thereto, was denied the right to occupy one of the houses, could be heard on such a complaint. Finally, an analysis of the averment, "That said project does not provide for the clearance of slums, except by the agreement of the farmer, and that he will demolish a substandard house located on his farm, and does not constitute a clearance of slums within the meaning of the housing-authorities law as amended," construed most strongly against the pleader, fails to show that there is here anything to entitle the complainant to any of the relief sought. The allegation that the scheme does not constitute a clearance of slums within the meaning of the law is a mere conclusion with no fact stated on which to rest it, except the clause immediately preceding, that the project contemplates an agreement of the farmer that he will demolish a substandard house. The project might well contemplate just that, and still, if it be in fact a slum clearance project, it would not be invalid because of such an agreement. Here again is the absence of an averment that the project does not operate in a slum area, and that the houses to be demolished are not slums. An averment that a house is substandard does not negative the idea that it is a part of a slum district.
Paragraph 3 of the petition says that the United States Housing Authority has made loans to the county authorities for the purpose of financing ninety per cent. of the cost of construction of houses for farmers of low income; the agreement being that each landowner "shall demolish or eliminate at least one unsafe or insanitary dwelling unit." In paragraph 9 it is said that the Regional Authority "proposes to rent same to farmers or their selectees."
Paragraph 10 contains the statement that "The proposed scheme of building houses in rural communities is not for a public purpose;" and "that said project does not provide for the clearance of slums except by the agreement of the farmer that he will demolish a substandard house located on his farm, and does not constitute a clearance of slums within the meaning of the housing-authorities law, as amended." We find in none of the resolutions adopted by the Authority, and set forth in or attached to the petition, any declared purpose to demolish a house merely because it is substandard, or any agreement with a farmer that he will do so. Whether a house that is merely substandard, and not otherwise objectionable, could in any event be treated as a slum or a slum unit, the petition properly construed does not show that the houses involved in this project were not otherwise or additionally of such character as to be classed as a slum or slum district, in that by reason of "dilapidation, overcrowding, faulty arrangement or design, lack of ventilation, light or sanitary facilities, or any combination of these factors, [they] are detrimental to safety, health, and morals." The most that can be said of the complainant's contention, as found in the allegations of his petition, is that he takes the position that as a matter of law under our statute there can be no such thing as a slum area in a rural community. To this we can not agree. The facts in Williamson v. Housing Authority of Augusta, 186 Ga. 673 ( 199 S.E. 43), did not call for a ruling on this precise point, but the terms of our statute draw no distinction based on municipal boundaries. A similar question was presented, however, to the courts of South Carolina, Florida, and North Carolina; and it was ruled, in effect, that the elements which constitute slums have no regard for the existence of municipal boundaries, or for the vocation of those who occupy them. Benjamin v. Housing Authority of Darlington County, 198 S.C. 79 ( 15 S.E.2d 737); Garrett v. Northwest Florida Regional Housing Authority, Fla. ( 12 So.2d 448); Mallard v. Eastern Carolina Regional Housing Authority, 221 N.C. 334 ( 20 S.E.2d 281).
Our conclusion is that it is nowhere alleged that defendant is proceeding or about to proceed in any manner other than as it is authorized to do under the terms of the acts hereinbefore referred to; and that the action was properly dismissed on demurrer.
Judgment affirmed. All the Justices concur.