Blankenship v. City of Decatur, 8 Div. 984

• Court: Supreme Court of Alabama
• Writing for the Court: MERRILL; LIVINGSTON
• Citation: 269 Ala. 670,115 So.2d 459
• Parties: R. J. BLANKENSHIP et al. v. CITY OF DECATUR et al.
• Docket Number: 8 Div. 984
• Decision Date: 05 November 1959

Page 459

115 So.2d 459 269 Ala. 670 R. J. BLANKENSHIP et al.
v.
CITY OF DECATUR et al. 8 Div. 984. Supreme Court of Alabama. Nov. 5, 1959.

Calvin, Gilchrist & Murphree, Decatur, for appellants.

[269 Ala. 671] Peach, Caddell & Shanks, John A. Caddell, Britnell & McEntire, Ben L. Britnell, Decatur, for appellees.

[269 Ala. 672] White, Bradley, Arant, All & Rose, Wm. Alfred Rose and Robt. R. Reid, Jr., Birmingham, amici curiae.

MERRILL, Justice.

Appellants, property owners and taxpayers in the City of Decatur, filed a bill in equity seeking a declaratory judgment and an injunction against appellees, City of Decatur and Housing Authority of the City of Decatur, enjoining the appellees

Page 460

from carrying out a redevelopment and urban renewal plan known and designated as the 'Well Street Urban Renewal Project.'

Appellants contend that the redevelopment projects Act, Act 491, General Acts of Alabama, 1949, p. 713, and the urban renewal projects Act, Act 553, General Acts of Alabama 1955, p. 1210, which are listed as Tit. 25, Chaps. 10 and 11, §§ 96-112, Cumulative Pocket Part, Code 1940, do not authorize a redevelopment project in which all of the property acquired is to be resold to private individuals; that the statutes are unconstitutional and that appellees acted arbitrarily, unreasonably or capriciously in carrying out and approving said project.

The appellees defended on the grounds that the statutes do authorize redevelopment projects in which all of the property is to be resold to private individuals; that the statutes in question are constitutional and that the actions of appellees were not arbitrary, unreasonable or capricious.

The trial court denied all the relief sought after a full hearing and this appeal is from the final decree of the circuit court, in equity.

On January 16, 1956, the City Council of the City of Decatur adopted a resolution declaring that the Well Street area was a slum, blighted, deteriorated or deteriorating area appropriate for an urban renewal project and approving the undertaking by the Housing Authority of the City of Decatur of surveys and plans for an urban renewal project in that area. After various proceedings, the urban renewal plan was presented to the City Council by the Housing Authority at the meeting of the City Council on July 1, 1958, was taken under consideration and held over until the meeting of July 15, 1958, and finally, on August 5, 1958, a resolution was adopted, finding that the project was a slum and blighted area and qualified as an eligible project area under Tit. 25, Code 1940, as amended, and that the urban renewal plan for the project had been duly reviewed and considered. During all of that period from January 16, 1956, until the adoption of the resolution approving the plan on August 5, 1958, none of the appellants made any proposal or effort to rehabilitate the area by voluntary action. On August 5, 1958, a proposal was made requesting a further delay of six months, which proposal was rejected by the City Council.

The area statistics for the property to be cleared, as shown in Part 1 in the application for loan and grant, being the appellees' Exhibit No. 5, are as follows:

Total area 16.71 acres

Improved land 15.70 acres

Unimproved land 1.01 acres

Residence structures 62

Substandard residential structures 48

Commercial structures 8

Substandard 5

Occupied housing units 64

Substandard 53

Standard 11

Occupied by white 12

Substandard 4

Standard 8

Occupied by non-white 52

Substandard 49

Standard 3

[269 Ala. 673] Appellants state in brief as follows:

'The essential question to be answered is do Sections 96 through 112, Title 25, Grant to the appellees the right to exercise the power of eminent domain to condemn privately owned property all of which is to be sold or leased to private individuals solely for business and commercial purposes.'

This question is answered in the negative in the case of Adams v. Housing Aughority of City of Daytona Beach, Fla., 60 So.2d 663; Edens v. City of Columbia, 228 S.C. 563, 91 S.E.2d 280; and Housing Authority of City of Atlanta v. Johnson, 209 Ga. 560, 74 S.E.2d 891, and fully support appellants' contention that the redevelopment and urban renewal project as undertaken under the applicable statutes was unconstitutional.

We note in passing that following the decision in the last cited case, the Constitution of the State of Georgia was

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amended and new legislation was upheld in Bailey v. Housing Authority of City of Bainbridge, 214 Ga. 790, 107 S.E.2d 812.

The partinent part of § 23 of the Constitution reads:

'That the exercise of the right of eminent domain shall never be abridged nor so construed as to prevent the legislature from taking the property and franchises of incorporated companies, and subjecting them to public use in the same manner in which the property and franchises of individuals are taken and subjected; but private property shall not be taken for, or applied to public use, unless just compensation be first made therefor; nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner; * * *.'

We have said that the 'public use' as used in § 23 should be given an elastic or liberal meaning, and that 'the great weight of authority holds that the result and purpose to be accomplished under the act in question was for a public use.' Brammer v. Housing Authority of Birmingham Dist., 239 Ala. 280, 195 So. 256, 258. That case was concerned with the validity of the act which later was codified as Tit. 25, §§ 5-30, Code 1940, where similar questions to those now before us were raised.

Later, in Opinion of the Justices, 254 Ala. 343, 48 So.2d 757, 760, rendered October 25, 1950, in considering Act 491, General Acts of Alabama 1949, p. 713, now listed in the Cumulative Pocket Part as Tit. 25, §§ 96-104, this court, including four present members, followed the Brammer case and said:

'The theory that Act No. 491 does not violate constitutional restrictions such as section 23, supra, has been approved by decisions of many courts construing such an act as this, holding that the exercise of the policy power in clearing a blighted area, such as is described...