Blakemore v. Cincinnati Metropolitan Housing Authority

• Decision Date: 15 November 1943
• Citation: 57 N.E.2d 397,74 Ohio App. 5
• Parties: BLAKEMORE v. CINCINNATI METROPOLITAN HOUSING AUTHORITY.
• Court: Ohio Court of Appeals

57 N.E.2d 397

74 Ohio App. 5

BLAKEMORE v. CINCINNATI METROPOLITAN HOUSING AUTHORITY.

Court of Appeals of Ohio, First District, Hamilton.

November 15, 1943

Walter K. Sibbald, of Cincinnati, for appellant.

Francis T. Bartlett, of Cincinnati, for appellee.

ROSS Presiding Judge.

This is an appeal on questions of law and fact from a decree of the Court of Common Pleas of Hamilton county, Ohio, dismissing the petition of the plaintiff.

In the petition it is alleged that the defendant has filed its application in the Court of Common Pleas of Hamilton county Ohio, to assess compensation for the appropriation of the real estate of plaintiff; that in such application it declared its intention to appropriate such real estate for a public use; that such real estate was required by it as a site for the establishment and development by it of a public slum clearance and low-rent housing project; and that a resolution was thereafter passed directing the appropriation of plaintiff's property to proceed. It is further claimed in the petition that plaintiff is not advised either of the necessity for such appropriation or the purpose for which her property is to be used. It is further stated that the notice later served failed to give such information. It is further alleged that the purposes now adopted by defendant do not involve a public use of plaintiff's real estate. It is further stated that plaintiff believes her real estate is to be used for the purpose of a private parking lot, appurtenant to such housing project, and that such use is not included within the purposes proposed or the authority of the statutes permitting the creation and operation of defendant. It is claimed further that such taking of plaintiff's real estate is without due process of law, that she is without adequate remedy at law, and that she is irreparably damaged. Her prayer is that the defendant may be enjoined from appropriating her property and enjoined from proceeding with its application to assess compensation therefor.

In the second amended and supplemental answer of the defendant, it is admitted that in its application it was asserted by the defendant, by resolution adopted, that it did declare its intention to appropriate to public use property required by it as a site for the establishment and development by it of a public slum clearance and lowrent housing project, that it did direct the appropriation of plaintiff's property for such purpose, that plans and specifications for the erection of such low-rent housing project were subsequently adopted providing for the erection of 53 buildings containing 1016 dwelling units, and spaces for off-the-street standing of any vehicles of tenants, of visitors, or other persons who might lawfully bring vehicles upon the property, and that such plans show that a part of the site, designed for such parking space, includes the property of the plaintiff.

As a supplemental defense, the defendant charges that the plaintiff by participation and acquiescence in the appropriation proceedings has waived and abandoned her right to proceed in this action.

For reply, the plaintiff denies such acquiescence, waiver and abandonment, and charges that on the contrary she specifically objected to the final judgment of the court therein decreeing distribution of the funds.

This latter contention of the defendant may be disposed of immediately.

Only one issue was involved in the appropriation proceedings--the value of the property involved therein. Emery v. City of Toledo, 121 Ohio St. 257, 167 N.E 889.

The plaintiff filed her action for an injunction the day the appropriation proceeding was called for trial. She therefore, took timely advantage of her rights by application to a court of equity. In Emery v. City of Toledo, supra, the third paragraph of the syllabus is:

'An owner whose property is being appropriated by a municipality may, at any time before the issue of value is determined, invoke the aid of a court of equity to determine whether the use is a public one, or whether the municipality in its legislative proceedings has complied with reasonable strictness with the statutes whereby the power to appropriate is conferred, or whether the municipality is acting in good faith or abusing its power.'

In Pontiac Improvement Co. v. Board of Com'rs, 104 Ohio St. 447, at pages 453 and 454, 135 N.E. 635, at page 637, 23 A.L.R. 866, the court in the opinion states:

'It is claimed by the defendant that the plaintiff has mistaken his remedy, and that injunction will not lie. We think that that question has been conclusively determined by this court in two cases, Pittsburg, C., C. & St. L. Ry. Co. v. City of Greenville, 69 Ohio St. 487, 69 N.E. 976, and Cleveland & P. R. Co. v. City of Martins Ferry, 92 Ohio St. 157, 110 N.E. 642, which sustain the proposition that injunction will lie where an appropriation proceeding is being prosecuted in a court which is without authority to fully protect the property owner's rights or adjudicate fully the question as to the necessity of the appropriation.'

She objected through her counsel to final judgment being entered in the case and her objection is incorporated in the decree.

The fact that her counsel, representing other interests acquiesced in the decree of distribution, or in fact requested the same, may not work to the prejudice of the plaintiff. Although counsel of record may bind a party to an action, he cannot do so to her disadvantage, when it is obvious that he does not speak for her, and what he does say indicates no waiver of her rights or abandonment of her proceeding to contest the right of the court to proceed. Neither does his statement that he intends to take no appeal for her constitute an abandonment since the question she now raises could not have been considered in such appeal. Her whole remedy, if any, lies in the action in equity. Emery v. City of Toledo, supra.

The chief, if not the only serious, problem presented in this case is whether the property of the plaintiff has been taken for private use or without due process of law.

Section 19, Article I of the Ohio Constitution provides in part: 'Private property shall ever be held inviolate, but subservient to the public welfare.'

It is only through the power of eminent domain that this right may be invaded. Enactments conferring such power are strictly construed. Pontiac Improvement Co. v. Board of Com'rs, supra; United States v. Certain Lands in City of Louisville, 6 Cir., 78 F.2d 684.

Certainly, the proceeding through which private property is appropriated to public use must constitute due process within the purview of the Fourteenth Amendment to the United States Constitution. Whether or not such is the case is a judicial question. City of Cincinnati v. Vester, 281 U.S. 439, 50 S.Ct. 360, 74 L.Ed. 950. The third paragraph of the syllabus in Pontiac Improvement Co. v. Board of Com'rs, supra, is:

'The phrase, 'where private property shall be taken for public use,' contained in section 19, article 1 of the Constitution of Ohio, implies possession, occupation and enjoyment of the property by the public, or by public agencies, to be used for public purposes.'

Such judicial inquiry involves the constitutional aspect of the legislation authorizing the taking, whether the law has been strictly followed, what is the nature of the necessity and the public use claimed, and any other matter which may reflect upon whether the inherent and constitutional rights of the plaintiff in her property have been invaded. Snyder v. Board of Park Com'rs, 125 Ohio St. 336, 181 N.E. 483.

Some of these questions may be disposed of at once. There can be no question that a 'parking space' is a perfectly proper appurtenance to a project consisting of 53 buildings accommodating 1016 dwelling units.

It does not appear from the record that any irregularity which occurred in the time and form of resolution and the manner and time of serving notice amounted to any serious departure from the legal procedure prescribed. The purpose of the project was sufficiently explicit except as hereinafter noted.

If this purpose were confined simply to 'slum clearance' a question of fact would be presented. That is, was the area sought to be taken properly described as a slum area, its clearance having a direct relation to the health, morals and welfare of the public. This question will be reserved for later consideration herein.

It appears, however, that, in the act authorizing the creation of defendant, in its incorporation, and in the application for appropriation, the purposes are dual, if not triple, closely intermingled, and so associated as to indicate that they are complementary and interdependent.

In United States v. Certain Lands in City of Louisville, supra, the eighth paragraph of the syllabus is:

'National Industrial Recovery Act, so far as it attempts to authorize national government to condemn private property for low-cost housing and slum-clearance projects and for purpose of reducing unemployment, held unconstitutional, since such use is not a 'public use' (National Industrial Recovery Act, §§ 201(a), 202, 203(a), 220, 40 U.S.C.A. §§ 401(a), 402, 403(a), 411; Fourth Deficiency Act; Const. art. 1, § 8, cl. 1).'

An examination of the Ohio 'Housing Authority Law,' Section 1078-29 et seq., General Code, 115 Ohio Laws, Pt. 2 56 et seq., and those similar laws of other states noted in the authorities in State ex rel. Ellis v. Sherrill, City Mgr., 136 Ohio St. 328, at page 331, 25 N.E.2d 844, at page 845, coupled with a review of the program of 'federal bounty' incident to the housing program, demonstrates that what the federal government could not do directly, it is seeking to do indirectly. The language of Mye...