Youngstown Metropolitan Housing Authority v. St. Stephen's Club

• Decision Date: 31 December 1952
• Citation: 95 Ohio App. 113,115 N.E.2d 82
• Parties: , 65 Ohio Law Abs. 481, 53 O.O. 12 YOUNGSTOWN METROPOLITAN HOUSING AUTHORITY v. ST. STEPHEN'S CLUB. ST. STEPHEN'S CLUB v. YOUNGSTOWN METROPOLITAN HOUSING AUTHORITY.
• Court: Ohio Court of Appeals

Page 113

95 Ohio App. 113

115 N.E.2d 82, 65 Ohio Law Abs. 481, 53 O.O. 12

YOUNGSTOWN METROPOLITAN HOUSING AUTHORITY v. ST. STEPHEN'S CLUB.

ST. STEPHEN'S CLUB v. YOUNGSTOWN METROPOLITAN HOUSING AUTHORITY.

Court of Appeals of Ohio, Mahoning County.

Dec. 31, 1952.

G. F. Hammon, C. J. Hoyt, Youngstown, for Youngstown Metropolitan Housing Authority.

Manchester, Bennett, Powers & Ullman, Youngstown, for St. Stephen's Club.

HURD, Judge.

These cases here appealed on questions of law originated in the Common Pleas Court of Mahoning County. Because the actions are between the same parties and the questions presented are identical, the cases are considered together.

In Case No. 3569, Youngstown Metropolitan Housing Authority, hereinafter designated as the Authority, petitioned to have a jury empanelled to assess compensation for the land which it desired to appropriate from St. Stephen's Club, hereinafter designated as the Club. In that suit, the Club sought to contest the right of the Authority to appropriate the land under the power of eminent domain.

In Case No. 3572, the Club filed its petition praying for an order permanently enjoining the Authority from proceeding with the appropriation proceedings on the ground primarily that the Authority had not the right to appropriate its property because the use to which it purported to put said property is not a public use, under Article I, Sec. 19 of the Constitution of Ohio. The injunction case was submitted on an agreed statement of facts which is part of the record herein, it being stipulated therein that a transcript of the testimony taken upon the application to empanel a jury in the appropriation case shall also be made a part of the record. In each case, the trial court found in favor of the Authority, holding the Ohio State Housing Law to be a valid, constitutional enactment and that the Authority had the right to appropriate land of the Club for the uses stated. The injunction prayed for against the Authority in the appropriation proceedings was denied, but the trial court granted a limited injunction, refusing the Authority permission to pay for or take possession of the land until the provisions of the cooperation agreement had been complied with in respect of re-zoning the land for multiple residence purposes.

Pertinent parts of the Agreed Statement of Facts are as follows:

The Youngstown Metropolitan Housing Authority does operate and intends to operate the housing project being located on the land to be appropriated in accordance with the United States Housing Act of 1937, as amended, 42 U.S.C.A. § 1401 et seq. That said Act defines 'low-rent housing' in Section 2 thereof, as follows:

'Sec. 2. When used in this Act----

"The term 'low-rent housing' means decent, safe and sanitary dwelling within the financial reach of families of low income, and developed and administered to promote serviceability, efficiency, economy and stability and embraces all necessary appurtenances thereto. The dwellings in low-rent housing as defined in this Act shall be available solely for families whose net income at the time of admission does not exceed five times the rental (including the value or cost to them of heat, light, water and cooking fuel) of the dwellings to be furnished such families, except that in the case of families with three or more minor defendants, such ratio shall not exceed six to one."

That the Annual Contributions Contract which has been drawn by the Director of the Chicago Field Office of the Public Housing Administration, has been submitted to, approved and executed by Youngstown Metropolitan Housing Authority as of November 25, 1952, and has been approved by the Director of the Chicago Field Office of the Public Housing Administration, and is the contract under which the project referred to as Ohio 2-3 will operate.

The ordinance authorizing execution of the cooperation agreement and the cooperation agreement, are exhibits herein. The Annual Contributions Contract and the Resolution of the Authority authorizing the execution of the Annual Contributions Contract, and a copy of the development program adopted by the Authority are exhibits herein.

The Authority was organized under the State Housing Authority Law. General Code Sections 1078-29 to 1078-50.

In the appropriation case, it was decreed that all the preliminary steps entitling the Authority to have a jury assess compensation under the provisions of the Code has been duly complied with and that the Authority had the right to appropriate the land described in the petition.

The St. Stephen's Club is a non-profit organization and a corporation, and the owner of land sought to be appropriated; that it is part of Youngstown Out-lot No. 1343 consisting of approximately eighteen acres located in the vicinity of Albert and Victor Streets on the east side of Youngstown; that it is now zoned as Residential A and the project which the Authority seeks to erect upon said land would require re-zoning to Residential B.

It is stipulated that the property in question is not a slum area and is vacant land without any buildings whatsoever, and that the Authority has submitted to the zoning commission plans and other data for the advice of the commission as provided by General Code of Ohio Section 1078-43.

It it further stipulated that the Housing Authority presented to the Planning Director, who represents the City Planning Commission, a complete lay-out or site plan, showing the street lay-out, the location of the buildings, existing streets, existing utilities, proposed streets and proposed utilities for the advice of the City Planning Commission; and the Director of that Commission in turn referred the data to the City Engineer, who advised the Housing Authority as to what to do about the width of certain streets and other matters. This was done prior to September 12, 1952.

It is further stipulated that a copy of the entry made upon the hearing in the appropriation case, and all exhibits referred to in the agreed statement of facts, shall be received in evidence and become part of the record herein.

Two grounds of error are assigned, as follows:

1. Assuming that the question was properly before the court in the appropriation case, the court erred in finding that the housing authority had the right to appropriate the club's land, and in permitting the trial for the assessment of compensation to proceed.

2. The court in the injunction suit erred in finding that the housing authority had the right to appropriate the club's land and in refusing to enjoin the housing authority from proceeding with the trial for the assessment of compensation.

Thus, there is presented the broad question of the right of a housing authority to exercise the power of eminent domain and to appropriate land for the purpose of erecting a housing project for families in low income brackets in general conformity with the purpose and design of the controlling legislation.

Considering the first assignment of error concerning the issues raised in the appropriation case, we are of the opinion that inasmuch at it was conceded by the Club that all the preliminary steps as to resolution of intent, resolution of appropriation, publication and notice to owners had been duly complied with, the only issue presented was the assessment of compensation and damages. We reach this conclusion on the authority of Emery v. City of Toledo, 121 Ohio St. 257, 167 N.E. 889; Sargent v. City of Cincinnati, 110 Ohio St 444, 144 N.E. 132; Pittsburgh, C., C. & St. L. Railroad Co. v. City of Greenville, 69 Ohio St. 487, 69 N.E. 976. See also: City of Cincinnati v. Vester, 281 U.S. 439, 50 S. Ct. 360, 74 L.Ed 950; Sears v. City of Akron, 246 U.S. 242, 38 S.Ct. 245, 62 L.Ed. 688; Jones v. Village of Maumee, 20 Ohio App. 455, 152 N.E. 765; Shepard Paint Co. v. Board of Trustees, 88 Ohio App. 319, 100 N.E.2d 248, 15 Ohio Juris. 998, Sec. 334.

It is our opinion, however, that although the Club was erroneously permitted to contest the right to appropriate in an appropriation suit, it is not thereby barred by the doctrine of election of remedies from prosecuting the injunction suit and from consideration of its appeal in that action by this court.

This brings us to a consideration of the second assignment of error concerning the issues raised in the injunction suit.

Article I, Sec. 19 of the Constitution of Ohio provides in part:

'Private property shall ever be held inviolate, but subservient, to the public welfare * * * [and] where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury * * *.'

Section 1078-34a General Code provides:

'A housing authority shall have special power to appropriate, enter upon and hold real estate within its territorial limits, and such authority is hereby authorized to acquire the fee simple title * * * in any property within its territorial limits which it shall deem necessary to appropriate for the purposes of the housing authority. Such power shall be exercised by a housing authority in the manner provided for appropriation proceedings by municipal corporations'. (Emphasis added).

At the outset it should be observed that the appellant does not here challenge the constitutionality of the entire housing authority law, General Code of Ohio Sections 1078-29 through 1078-61a, conceding by their brief that 'the supreme court in the case of State ex rel. Ellis v. Sherrill, 136 Ohio St. 328, 25 N.E.2d 844, at least inferentially upheld the act when considered as a whole.' However, it selects from the entire act for attack, General Code, Section 1078-34a quoted, supra, on the ground that the statute attempts to authorize the taking of private property by eminent domain for a private use, in violation of Art. I, Sec. 19 of the Ohio Constitution. In support of its argument, the...