11 S.E.2d 732 (Va. 1940), Mumpower v. Housing Authority of City of Bristol
| Citation | 11 S.E.2d 732, 176 Va. 426 |
| Opinion Judge | Campbell |
| Party Name | W. R. MUMPOWER v. HOUSING AUTHORITY OF THE CITY OF BRISTOL AND CITY OF BRISTOL. |
| Attorney | Jones & Woodward, for the plaintiff in error. |
| Case Date | November 28, 1940 |
| Court | Virginia Supreme Court |
Page 732
[176 Va. 434] Jones & Woodward, for the plaintiff in error.
Donald T. Stant, Bradley Roberts and Floyd H. Roberts, for the defendants in error.
JUDGE: CAMPBELL
CAMPBELL, C.J., .
The opinion of the trial judge, Honorable Joseph L. Cantwell, Jr., sufficiently states the issues involved in this litigation and the reasons which support the decree. It follows:
'Complainant, who alleges that he is a citizen, resident, taxpayer and property owner of the City of Bristol, Va., files his bill herein, assailing the organization of the Housing Authority of the City of Bristol, and questioning its right to carry out its functions in general. Specifically, the bill challenges the right of said Authority to issue bonds, the right of the City Council, by its resolution or ordinance, to authorize the Mayor to appoint members of the Authority, the action of the Mayor in making such appointments, the organization of the Authority, the authority
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to enter in and the validity of the cooperation agreement between the Authority and the City, the legality and validity of the two contracts between the Brisl Authority and the U.S.H.A. and the legality and validity of the contract between the Brisl Authority and V. L. Nicholson Co., copies of all of the contracts except the last being exhibited with the bill, and asks a declarary judgment as the validity of the entire 'Housing Authorities Law' (Chapter 310, Acts of Assembly 1938, Code Supp. Secs. 3145(1)-3145(24), inc.) hereinafter referred as the 'act'.
'The Grounds of Attack are Briefly:
'1. The General Assembly is without power to create such Authority.
'2. The property of such Authority is not exempt from taxation under Virginia Constitution, Sec. 183.
[176 Va. 435] '3. The purpose of the Authority is not a public purpose, and the taking of property by it is for a private use.
'4. Its bonds are bonds of the city and are illegal as in violation of Virginia Constitution, Sec. 127.
'5. The contract of the city with the Authority is illegal in that it undertakes to bind future members of the City Council in the exercise of their legislative functions contrary to Virginia Constitution, Sec. 185.
'6. The general question as to the validity of the entire 'Act'.
'The defendants file separate demurrers to the bill upon the ground that the 'Act' is constitutional, and that the acts and contracts complained of are pursuant thereto and in compliance therewith.
'The contentions will be disposed of in the order hereinafter designated.
'The court is greatly assisted by the able briefs filed by counsel which demonstrate careful consideration and investigation of the questions involved.
'Logical sequence calls for consideration, first, of two basic questions, which are covered by contentions '1' and '3' above. They are, first, the power of the Legislature to create the Housing Authority, and second, whether the property of the Authority is devoted to a public use. Naturally, if the Authority cannot lawfully be created, then that is decisive of the case. Likewise if it may be lawfully created, but may not condemn property for the reason that the property would be devoted to a private use, such Authority would be so hampered in its functions as to practically defeat its purpose.
'The consideration of these two questions involves consideration of the foundations
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of the police power and the power eminent domain.
'It has been said, West Bros. Brick Co. v. Alexandria, 169 Va. 271 [192 S.E. 881], quoting from Town of Windsor v. Whitney, 95 Conn. 357, 111 A. 354, 356, 12 A.L.R. 669:
''The line between eminent domain and the police power is a hard one to hold with constancy and consistency, and [176 Va. 436] it is not surprising that now and again these two great powers of government have been confused.'
'Such confusion is probably due almost entirely to the fact that the object to be attained by the exercise of each fundamental power is the same, and the reason for the exercise of the power the same, that is, the public benefit. Such confusion will be avoided in this discussion by considering each separately; however, the similarity of reason and purpose will be apparent.
'It is contended that the power of the Legislature to create the Housing Authority may be sustained for several reasons: First, because it is a valid exercise of the police power; second, because embraced in the general legislative power without prohibition or restraint; and third, because specifically authorized by Virginia Constitution, Section 147.
'Let us consider these contentions in the above order, first as to the police power.
'The declared purpose of the Act is as follows, Code, Sec. 3145(2):
''It is hereby declared: (A) that the clearance, replaning and reconstruction of the areas in which insanitary or unsafe housing conditions exist and the providing of safe and sanitary dwelling accommodations for persons of low income are public uses and purposes for which public money may be spent and private property acquired and are governmental functions of grave concern to the Commonwealth; --'
'The Act then proceeds in paragraph (3) to define a 'slum' and to define a 'housing project', among other provisions, as an undertaking to clear slum areas and provide decent, safe and sanitary living accommodations for persons of low income.
'It is therefore, to be seen that the Act has as its primary and avowed purpose the eradication of slums, and, in order to accomplish this, it attacks the situation from two angles; one, the elimination of existing slums, and, two, the establishment of modern standard living accommodations, an inseparable [176 Va. 437] incident to the accomplishment of the primary purpose.
"It is a matter of common knowledge that slum areas where many people gather under the lowest possible standards of living, crowded together in dilapidated hovels which are unsafe, unsanitary and unhealthful, in a sordid atmosphere, are the places where is bred, nurtured, and brought to its destructive fruition the greater percentage of crime and moral degeneracy; likewise that such are the breeding places from which disease is spread; and, worst of all, such places are self-perpetuating in that offsprings born under such conditions are damned, from the day of their arrival in this world, to the life of their fathers. Such gathering places of filth, lust, crime, disease and degeneracy are a tragic detriment not only to their inhabitants, but are in every respect a social and economic detriment to the people at large. Their eradication is a matter of vital concern to the public and to the State. That the existence of such situations is detrimental to the health, safety, morals, general welfare and general prosperity of the people is so clear as not to require any reasoning. That it is a subject for the exercise of the police power is equally clear.
'Thus, under well recognized principles, the Authority, to the extent that it is established for the purpose of eliminating slum areas, may be created under the police power of the State.
"It does not necessarily follow, however, that this is true as to the functions of the Authority in regard to erecting and maintaining low-rent projects, which proposition will be next examined.
'This question is not free from difficulty. It is presented by complainant in his brief in the form of the assertion -- 'That government interference or operation could be extended to almost every conceivable private enterprise if the only necessary reason for so doing were that (the) desired result, public health, could be more cheaply obtained for low income classes, by use of government funds and tax [176 Va. 438] exemption * * * until we should
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have a completely socialized or communised state.'
* * *
'It is true that this contention finds support in the opinion in Ohio v. Helvering [292 U.S. 360, 54 S.Ct. 725, 726], 78 L.Ed. 1307, where it is said:
''Nevertheless, the police power is and remains a governmental power, and applied to business activities is the power to regulate those activities, not to engage in carrying them on. Rippe v. Becker, 56 Minn. 100, 111, 112, 57 N.W. 331, 22 L.R.A . 857. If a state chooses to go into the business of buying and selling commodities, its right to do so may be conceded so far as the Federal Constitution is concerned, but the exercise of the right is not the performance of a governmental function, and must find its support in some authority apart from the police power.'
'However, the statement must be considered in connection with the issue involved in that case. There, the State of Ohio sought to enjoin the collections of internal revenue for the United States from collecting federal liquor dealer's license taxes on State-owned liquor dispensaries. It was contended that the State, in operating the dispensaries, was engaging in a governmental function under its police power, and was not subject to Federal taxation in regard to its governmental functions. The court held that the State was engaging in a proprietary function and as such was taxable.
'In considering the effect of this holding, it must be remembered that the liquor traffic has long occupied a peculiar field, when compared to traffic in other commodities, and that the power not only to regulate but entirely prohibit the traffic has been generally accorded. See State ex rel. George v. Aiken [42 S.C. 222], 20 S.E. 221, 26 L.R.A. 345, and cases cited, including quotation at page 352 (L.R.A. report), from Crowley v. Christensen, 137 U.S. [86], 90 [11 S.Ct. 13], 34 L.Ed. [620], 623. The opinion in State ex rel. George v. Aiken is in conflict with Ohio v. Helvering, the former sustaining the constitutionality of a State dispensary law by holding...
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