Blankenship v. City of Decatur

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

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.

Peach, Caddell & Shanks, John A. Caddell, Britnell & McEntire, Ben L. Britnell, Decatur, for appellees.

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 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

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 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 in the Alabama law, supra, is a public use of that area. Belovsky v. Redevelopment Authority, 357 Pa. 329, 54 A.2d 277, 172 A.L.R. 953; Schenck v. City of Pittsburg, 364 Pa. 31, 70 A.2d 612; Zurn v. City of Chicago, 389 Ill. 114, 59 N.E.2d 18; People ex rel. Tuohy v. City of Chicago, 399 Ill. 551, 78 N.E.2d 285; Redfern v. Board of Commissioners of Jersey City, 137 N.J.L. 356, 59 A.2d 641; In re Opinion to the Governor, 76 R.I. 249, 69 A.2d 531; General Development Corp. v. City of Detroit, 322 Mich. 495, 33 N.W.2d 919; Bader Realty & Investment Co. v. St. Louis Housing Authority, 358 Mo. 747, 217 S.W.2d 489; Amalgamated Housing Corp. v. Kelly, 193 Misc. 961, 82 N.Y.S.2d 577. See, also, 172 A.L.R. notes 967, 970 et seq.

'Our conclusion is that the plan contemplated by Act No. 491, supra, in connection with Title 25, Code, shows that character of public benefit resulting from its observance which should be classified as a public use on the same theory which influenced us in so declaring with reference to Title 25, supra, before the adoption of the Act No. 491, supra, and does not violate section 23 of the Constitution.'

A later annotation appears in 44 A.L.R.2d 1414 et seq.

At that time, the cases relied on by appellants had not been decided, nor had the following cases from additional jurisdictions been decided, all of which support the position taken by this court in the Brammer case, 239 Ala. 280, 195 So. 256, and Opinion of the Justices, 254 Ala. 343, 48 So.2d 757; Rowe v. Housing Authority of City of Little Rock, 220 Ark. 698, 249 S.W.2d 551; Babcock v. Community Redevelopment Agency of City of Los Angeles, 148 Cal.App.2d 38, 306 P.2d 513; Gohld Realty Co. v. City of Hartford, 141 Conn. 135, 104 A.2d 365; Randolph v. Wilmington Housing Authority, Del., 139 A.2d 476; Alanel Corp. v. Indianapolis Redevelopment Commission, Ind., 154 N.E.2d 515; State ex rel. Fatzer v. Urban Renewal Agency, 179 Kan. 435, 296 P.2d 656; Miller v. City of Louisville, Ky., 321 S.W.2d 237; Herzinger v. Mayor & City Council of Baltimore, 203 Md. 49, 96 A.2d 3, 98 A.2d 87; Worcester Knitting Realty Co. v. Worcester Housing Authority, 335 Mass. 19, 138 N.E.2d 356; Housing and Redevelopment Authority of City of St. Paul v. Greenman, Minn., 96 N.W.2d 673; Velishka v. City of Nashua, 99 N.H. 161, 106 A.2d 571, 44 A.L.R.2d 1406; State ex rel. Bruestle v. Rich, 159 Ohio St. 13, 110 N.E.2d 778; Nashville Housing Authority v. City of Nashville, 192 Tenn. 103, 237 S.W.2d 946; Starr v. Nashville Housing Authority, D. C., 145 F.Supp. 498, affirmed 354 U.S. 916, 77 S.Ct. 1378, 1 L.Ed.2d 1432; Hunter v. Norfolk Redevelopment and Housing Authority, 195 Va. 326, 78 S.E.2d 893; David Jeffrey Co. v. City of Milwaukee, 267 Wis. 559, 66 N.W.2d 362.

While it is true that Act 553, listed in the Pocket Part as Tit. 25, §§ 105-112, had not been enacted when the Opinion of the Justices, 254 Ala. 343, 48 So.2d 757, was rendered, there is nothing in Act 553 which would affect the opinion rendered on Act 491. The instant proceedings, regardless of name, are much more concerned with a redevelopment project (Act 491) than with an urban renewal project (Act 553).

There is no new or different question here presented. We are faced with a choice of adopting a minority view, not without appealing argument, or of following a carefully considered opinion of the members of this court which is part of the majority opinion consisting of at least twenty-six States. We choose to follow our previous opinion and hold that Acts 491 and 553, listed as Tit. 25, §§ 96-112, Code 1940, Pocket Part, authorize the redevelopment project sought by appellees, and the statutes do not violate § 23 of the Constitution.

Appellants also argue that the action of appellees was arbitrary,...