Opinion
No. 27410
Decided February 28, 1940.
Municipal corporations — Participation under United States Housing Act — Low-rent housing or slum clearance proposed — Mandamus to compel signing contract with metropolitan housing authority.
IN MANDAMUS.
In this original action in mandamus, John D. Ellis, city solicitor of the city of Cincinnati, is the relator, while C.O. Sherrill, city manager of the city of Cincinnati, is the respondent.
The petition, as amended and supplemented, alleges that in December of 1933 the Cincinnati Metropolitan Housing Authority was duly established under the Ohio Housing Authority Law enacted by the General Assembly, effective in September of 1933 (Section 1078-29 et seq., General Code, 115 Ohio Laws, part 2, 56), and since that time has been functioning under such law and its amendments; that the Cincinnati Housing Authority applied to the United States Housing Authority for a loan and annual contributions under the provisions of the United States Housing Act of 1937 as amended (Title 42, Section 1401 et seq., U.S. Code), to carry out certain slum clearance and low-rent housing projects in the city of Cincinnati, formulated within the scope and contemplation of the act; that pursuant to the negotiations between the local and national housing authorities, an emergency ordinance was passed by the council of the city of Cincinnati, on November 2, 1938, amended by a later ordinance, whereby the respondent city manager was authorized and directed to enter into a contract with the Cincinnati Housing Authority to aid and facilitate the execution of its program.
Such proposed contract was incorporated in the ordinance as amended. By Section 7 thereof the Cincinnati Housing Authority agreed that of the $13,500,000 tentatively allocated to low-cost housing by the United States Housing Authority, not more than $7,100,000 would be expended for vacant land projects ( i. e., the construction of low-rent dwelling units on vacant lands), and that the balance would be spent for negro slum clearance activities in the west end; provided that a sum of not more than $1,500,000 would be employed to add a specified number of dwelling units to the existing Laurel Homes project for occupation by negro families, and to be considered as a part of the negro slum clearance plan.
The petition further alleges that by virtue of such ordinance it was incumbent upon the respondent city manager to sign and execute the contract mentioned, but that he has failed and refused to do so because of an expressed doubt as to the validity of the action of the city council and of the constitutionality of the laws under which the council purported to act.
In conclusion, the petition contains a prayer that a writ of mandamus issue ordering the respondent city manager to sign the contract as directed by the ordinance.
An answer consisting of seven defenses was filed. The demurrer thereto was sustained as to all of the defenses except the third, which states in substance:
First, that money in the sum of $7,100,000 to be loaned by the United States Housing Authority to the Cincinnati Housing Authority for the construction of two low-rent housing projects on vacant lands (one to be known as "Winton Terrace," comprising 750 dwelling units, and the other to be known as "English Woods," comprising the same number of dwelling units), will not, as planned, constitute (a) "low-rent housing," or (b) "slum clearance" as contemplated by the United States Housing Act.
Second, that the proposed loan, being neither for "low-rent housing" nor for "slum clearance," is unauthorized by the United States Housing Act.
The reply, after a general denial, alleges that besides the two low-rent housing projects on vacant land, objected to by the respondent, the Cincinnati Housing Authority intends to erect an addition to the Laurel Homes enterprise and to carry out a negro slum clearance and housing program in the west end of Cincinnati, and that in due season a resolution will be passed as to the low-rent character of each project, including the type or class of families which will be placed in occupation of the dwelling units to be constructed.
Reference is also made to the provisions of the loan contract embodied in the proposed contract with the city of Cincinnati, stipulating for the elimination of unsafe or insanitary dwelling units in the city at least equal to the number of new dwelling units provided for in the building program.
Issues being joined by the pleadings, a mass of testimony was taken by deposition for and against the plans of the Cincinnati Housing Authority, a good deal of which was irrelevant and superfluous.
The case is now in our hands for decision upon the pleadings and the evidence.
Mr. John D. Ellis, city solicitor, Mr. Francis T. Bartlett and Mr. Alfred Bettman, for relator.
Mr. Walter K. Sibbald, for respondent.
In disposing of this matter on the merits, we are confined to the issues as raised by the third defense of the answer, and may not concern ourselves with the wisdom or policy displayed by the United States Congress in passing the Federal Housing Act.
By the terms of such act a national housing authority is created, and empowered to loan and dispense government funds to duly constituted local housing authorities or agencies in the various states, for two principal purposes: (1) the eradication of so-called slum areas, "injurious to the health, safety and morals of the citizens of the nation," and (2) as a concomitant thereof, the furnishing of low-rent dwellings to families of low incomes.
Naturally, in the execution of such a program a. great deal must be left to the discretion and sound judgment of the local authorities, appointed in compliance with the state law. When it appears that such judgment and discretion is being reasonably exercised within lawful limits, no basis is afforded for judicial intervention.
An examination of the evidence presented in the pending case shows on the whole a carefully conceived and balanced plan to abolish selected slum areas in the city of Cincinnati and to provide low-rent dwelling units within the municipal limits for families of low incomes, in general conformity with the purpose and design of the controlling legislation.
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.
As we view the situation, no valid or sufficient reason exists for the refusal of the respondent to sign the contract as directed by the city ordinance.
Since the passage of the United States Housing Act, followed by necessary and appropriate enactments in different states to take advantage of the national bounty, frequent attacks have been made upon this legislation and the steps taken thereunder as to constitutionality and on almost every other conceivable ground. Such legislation and the ensuing activities have been upheld generally by the courts, as is shown by the following representative cases, recently decided: Housing Authority of County of Los Angeles v. Dockweiler (Cal.Sup.), 94 P.2d 794; Laret Inv. Co. v. Dickmann (Mo.Sup.), 134 S.W.2d 65; Matthaei v. Housing Authority of Baltimore (Md.App.), 9 A.2d 835; Allydonn Realty Corp v. Holyoke Housing Authority (Mass.Sup.), 23 N.E.2d 665; Stockus v. Boston Housing Authority (Mass.Sup.), 24 N.E.2d 333; In re Brewster Street Housing Site in City of Detroit (Mich.Sup.), 289 N.W. 493; Romano v. Housing Authority of the City of Newark (N.J.Sup.), 10 A.2d 181; Chapman v. Huntington, W. Va., Housing Authority (W.Va.Sup.Ct. of App.), 3 S.E.2d 502. The writ as prayed for will issue.
Writ allowed.
WEYGANDT, C.J., DAY, ZIMMERMAN and WILLIAMS, JJ., concur.
MYERS, MATTHIAS and HART, JJ., dissent.
Dissent for the reason that in order to secure federal aid, territorial areas in Cincinnati and other cities of Ohio, where housing authority projects have been authorized, are to become bodies corporate and politic, and are to be federalized. To the extent that they are federalized, the state of Ohio and the cities lose governmental jurisdiction therein. If federal loans made to the local building authority to finance the projects should be in default, the Federal Housing Authority may foreclose its claim, sell the property, purchase it at such sale, and operate it as federal-owned property.
In accepting the terms of the Federal Housing Act, all capital, income, assets and property of every kind within the territorial limits of the projects are exempted from all taxation by the state, county or municipality in which they are located. In lieu thereof, the city agrees to accept from the Cincinnati Housing Authority a total service charge of 2 1/2 per cent of the shelter rents received from the buildings erected on the project. This violates the taxation provisions of the Ohio Constitution which require uniformity in taxation. The city of Cincinnati must agree to dedicate and accept for municipal purposes all streets and public lands which the Cincinnati Housing Authority determines to use for streets and alleys within the project. The city must agree to grant easements, licenses and permits, giving such local authority the right to construct and maintain public utility services over or across any public streets or alleys of the city dividing any project site into two or more parts, so as to enable the local authority to furnish and distribute such utility service throughout the project. The city must also agree to furnish to the project, utility services, such as public street lighting, water, fire, police and health protection, street maintenance, garbage and waste collection and disposal, at cost. The so-called cooperation contract does not, in fact, provide for slum clearance as contemplated by the law but rather for the construction of large apartment buildings at low priced rentals far removed from slum districts. This plan illustrates present day trends in the extension of national governmental activities with a corresponding diminution of the rights of states and their governmental subdivisions. It is a surrender of state sovereignty and local governmental power neither authorized nor intended by the state or federal Constitution.
We are asked to issue a writ of mandamus to compel the authorities of the city of Cincinnati to execute a contract agreeing to assume these burdens and responsibilities over a contemplated period of not less than sixty years, accompanied by a surrender of governmental power and control. This is too great a price for the state of Ohio and the city of Cincinnati to pay for so-called "national bounty." The writ should be denied.