Davis v. City of Lubbock, A-7072

Citation160 Tex. 38,326 S.W.2d 699
Decision Date15 July 1959
Docket NumberNo. A-7072,A-7072
PartiesR. B. DAVIS et al., Appellants, v. CITY OF LUBBOCK and Urban Renewal Agency of the City of Lubbock, Texas, Appellees.
CourtSupreme Court of Texas

Treadaway & Blumrosen, Shaw & Daniel, Lubbock, for appellants.

Vaughn E. Wilson, City Atty., Worth Fullingim, Asst. Ctiy Atty., Klett, Evans, Trout & Jones, Bobby J. Moody, Lubbock, for appellees.


This direct appeal involves certain basic constitutional questions regarding the validity of the Texas Urban Renewal Law. 1 The most difficult questions before us are (1) whether the condemnation of property under the Act constitutes a taking for a 'public use,' and (2) the validity of the 'trial de novo' provision of the Act which, as applicable here, would require an independent trial in court on the question of whether the area to be cleared is in fact a slum as defined in the Act.

The general purpose of the Urban Renewal Law is to provide for the clearance of slum and blighted areas in cities and the redevelopment of the areas by private enterprise under restrictions designed to carry out the plan of renewal and to prevent recurrence of the slum conditions.

The parties waived a jury, and the district court upheld the Act. Section 17 of the Act, however, which requires a complete trial de novo in court, was declared to be invalid. The trial court nevertheless upheld the actions of the City and the Renewal Agency upon the validity of other portions of the Act and upon findings that the actions of the City and the Agency were fair and reasonable.

We agree with the trial court that, as against the attacks here made, the Act is constitutional. We agree that the trial de novo portion of the statute is invalid as applied to the matter before us.

R. B. Davis brought this suit against the City of Lubbock and its Urban Renewal Agency to enjoin them from instituting proceedings in eminent domain against his property, from levying any taxes, or expending any public funds upon the urban renewal project. Intervenors George Johnson and wife adopted Davis's pleadings and demanded a trial de novo on the question set out above.

The Congress provided the stimulus for these slum clearance and urban renewal statutes by providing large sums of money for such projects to be carried out by the cities under enabling state legislation. 2 The federal government furnishes two-thirds of the net project cost. No local tax funds have been spent on the Lubbock project as yet. Briefs filed herein by several other Texas cities and other amici curiae indicate that several other urban renewal projects are under way in Texas. 3

The Urban Renewal Law, the substance of which has been enacted in most of the states of the Union, 4 is too long to be reviewed here. The Texas Act, filling 18 pages of the Session Laws, contains more limitations upon the powers of cities and renewal agencies than are contained in the laws of other states. For example, the Texas law provides that no city may exercise any of the powers until the city council shall have held an election by the people of the city as to whether (1) one or more slum or blighted areas exist in such cities, and (2) slum clearance and rehabilitation of such area is necessary in the interest of public health, safety, morals or welfare. The Texas Act has also a provision, Section 22, not found in any other Urban Renewal Act The city council is to determine whether slum areas exist. It must identify the boundaries of such areas and cause a plan to be prepared to combat the problem. Before it may put such plan into operation, it must hold a public hearing after due notice. Thereafter, the council may adopt the plan.

The Act authorizes the city councils themselves to carry out the program. Or they may cause it to be carried out by an 'urban renewal agency,' a group of from five to nine persons appointed by the mayor with the advice and consent of the council. The Act itself creates such a public body in each city, but a resolution of the city council is necessary to bring it into activity.

The Act authorizes the cities to acquire the land within the designated area by purchase or by condemnation. The area may be cleared and redesigned. The city may retain all or any part of it for its own use. The balance may be leased or sold under terms and conditions designed to prevent the recurrence of slums. The Act forbids the use of the property for public housing.

An election was duly called in Lubbock, and the people voted in favor of proceeding under the Act. It is stipulated that the necessary procedural steps have been taken and that the Council had created the Urban Renewal Agency. The City and the Agency have declared an area in southeast Lubbock, now designated as the Coronado Urban Renewal Project Area, to be a 'slum area.' In addition, the area was found to contain 'other blighting characteristics such as physical deterioration, inadequate street system and insanitary conditions * * *.'

R. B. Davis owns land within that area. The structure thereon is not standard and does not meet the minimum requirements of the City's building code. The intervenors, Johnson and wife, also own property within the area, but the structure on their property is standard. It meets the requirements of the building code. Under the City's plan of redevelopment, it will be necessary to acquire both of their properties by purchase or condemnation.

The City Council's resolution finds, in effect, that typical slum conditions exist: of the 256 residential structures in the area, all are substandard except 7; over 80% are dilapidated beyond reasonable rehabilitation; 100% of the nonresidential structures are substandard and nuisanceproducing. The substandard structures are so unsafe and unsanitary as to be unsuitable for human habitation; 203 of them have open, unprotected and dangerously inadequate wiring; 109 have no running water; 105 have no indoor commode. Most of the houses are badly overcrowded.

The resolution further finds a high rate of crime in the area including a disproportionately high percentage of arrests for intoxication. While the average for treatment of venereal disease was only one person in 1,000 in the rest of the city, the average was 20 to 1,000 within the area. The City spent for police, fire and other services 3 1/2 tax dollars within the area for each tax dollar received from it. The cost of fire calls within the area was substantially higher than in the rest of the city.

We now turn to the attacks on the validity of the Act.

I. The property is not taken for 'Public Use.'

The most serious attack on the Act is that it violates Section 17 of Article 1 of the Texas Constitution, Vernon's Ann.St. which reads in part:

'No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money * * *.'

This 'public use' provision, in substance, appears in the constitutions of almost all of the states and is implied in the 14th Amendment to the Constitution of the United States. 5 Under it, private property may be taken only for adequate compensation and for a 'public use.'

The question of 'public use,' as far as the due process of the federal constitution is concerned, has been settled. The Supreme Court of the United States in 1954 upheld the Urban Renewal Act of the District of Columbia, a law broader than the Texas Act. 6

Acts similar to ours have also been upheld by a great majority of the courts of last resort in the other states. 7 They are persuasive as are the numerous text and law review articles on the subject. 8 We must nevertheless consider the question in the light of our own constitution as it has been interpreted by this Court.

We are met at the threshold with a declaration of the Texas Legislature that the entire project is a 'public use.' It has declared that the carrying out of the urban renewal program, including the acquisition of the land, the clearing of slum and blighted areas, and the disposition of the property 'are public uses and purposes for which public money may be expended and the power of eminent domain exercised.' 9

The Legislature, in support of its declaration of 'public use,' found there existed in our cities slum and blighted areas which constitute a serious and growing menace, injurious and inimical to the public health, safety, morals and welfare of the residents of the State; that such areas contribute substantially and increasingly to the spread of crime, disease and juvenile delinquency; that such areas necessitate excessive and disproportionate expenditures for the preservation of the public health and safety and for adequate police and fire protection. It declared that the menace can best be remedied by the conjunctive action of private enterprise, the cities (through their regulatory and other powers) and other public bodies acting pursuant to urban renewal plans.

This Court, however, in previous cases, has held that whether a taking of property is for 'public use' is a judicial question. 10 In Housing Authority of City of Dallas v. Higginbotham, it was said that the declaration of the Legislature was entitled to great weight; and since in that case the Court could not say as a matter of law that the unsanitary and unsafe dwellings did not cause and increase spread of disease and crime in the slum areas of Dallas there before the court, this Court could not say that the legislative determination was manifestly wrong. 11 We shall, therefore, regard this question as a judicial one, giving great weight, however, to the legislative determination.

The slum clearance statute in Housing Authority of City of Dallas v. Higginbotham was similar to the one now before us except that it provided for public housing...

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