Edens v. City of Columbia

• Decision Date: 30 January 1956
• Docket Number: No. 17111,17111
• Citation: 228 S.C. 563,91 S.E.2d 280
• Court: South Carolina Supreme Court
• Parties: John E. EDENS et al., Appellants, v. CITY OF COLUMBIA et al., Respondents.

Page 280

91 S.E.2d 280

228 S.C. 563

John E. EDENS et al., Appellants, v. CITY OF COLUMBIA et al., Respondents.

No. 17111.

Supreme Court of South Carolina.

Jan. 30, 1956.

F. Barron Grier, Jr., S. Augustus Black, John Grimball, Columbia, for appellants.

Robinson, McFadden & Dreher, Paul A. Cooper, John W. Sholenberger, Columbia, for respondents.

STUKES, Justice.

The Housing Authority of the City of Columbia has proceeded under the 'Redevelopment Law', section 36-401 et seq. of the Code of 1952, and determined that an area of the city is a 'blighted' area, which is principally occupied by slum dwellings; and they propose to take the property, by condemnation if necessary, clear it of the present structures and sell it at the then fair value, a portion of it to the University of South Carolina for the expansion of it, and the remainder, which is the most of it, to private persons and corporations for sites for light industry, with restrictions upon the use to accomplish the purpose.

Originally the plan encompassed fourteen contiguous city blocks but, during the litigation, the University acquired two blocks by purchase and another block has been eliminated; thus the project is now comprised of two separate areas, one consisting of two blocks which it is intended to dispose of to the University for its educational use, and nine blocks to be disposed of or private enterprise for commercial and industrial use. The nine block area is bounded North by Senate Street, East by Assembly Street, South by Blossom Street, and West by Lincoln Street, with the exception of the block occupied by the Standard Warehouse at the southwest corner of the area.

There appears to be no controversy with respect to the two blocks which it is intended will eventually be conveyed to the University because they are subject to the right of eminent domain for that unquestioned public use. Therefore, this adverse decision as to the nine-block area should not affect the plan as to the two-block area which is destined for the use of the University.

The evidence establishes that the most of the existing structures on the nine-block area are low-rent dwellings and the owners of some of them are the plaintiffs in this action and contest the constitutionality Of certain features of the Redevelopment Law and particularly the right of the Authority to take their property by eminent domain and without their consent.

Reference should be had to the recent case of Richards v. City of Columbia, 1955. 227 S.C. 538, 88 S.E.2d 683, in which the constitutionality of the far-reaching Substandard Housing ordinance of the City of Columbia was upheld. Under the terms of that ordinance the presently substandard residences in the area may be made to conform to the rigid standards of it, or they may be required to be closed for habitation or demolished by the owners.

It is noted from the above that this is not a slum clearance project, within the authority of McNulty v. Owens, 188 S.C. 377, 199 S.E. 425. The project does not contemplate erection of housing upon the land for the present residents of the area. It is estimated that over five hundred families, comprised of about twenty-five hundred persons, now occupy the residences upon it.

The master and the trial court upheld the law and the project against various grounds of attack. Several questions have been argued on appeal but it appears that there need only be decided whether the power of eminent domain may be exercised by respondents to obtain title to the privately owned property in the area which is not earmarked for the use of the University, except that it is determined without discussion that that issue is 'ripe for adjudication' under the Uniform Declaratory Judgments Act, perforce which the action was brought. Section 10-2001 et seq. of the Code of 1952. Foeller v. Housing Authority of Portland, 1953, 198 Or. 205, 256 P.2d 752.

As was said in Crommett v. City of Portland, Me.1954, 107 A.2d 841, 849: 'It is apparent that without the right of eminent domain the purposes of the [Redevelopment] Act cannot be carried out. Accordingly, the constitutionality of the Act may be tested by reference only to the principles of the law of eminent domain. Without eminent domain the Act fails'.

There are similar statutes in the District of Columbia and many states under which the issue has arisen. The greater number of the decided cases sustain condemnation of private property for 'redevelopment' purposes. The decisions are collected in an annotation in 44 A.L.R.2d 1414. It appears that only the courts of Georgia and Florida have held unqualifiedly to the contrary. Housing Authority of City of Atlanta v. Johnson, 1953, 209 Ga. 560, 74 S.E.2d 891, 893. Adams v. Housing Authority of City of Daytona Beach, Fla.1952, 60 So.2d 663. From the opinion in the first cited the following is quoted as pertinent here:

'In so far as the redevelopment plan here in question is concerned, it affirmatively appears that there is now ample housing for the people to be displaced and not one dwelling house will be erected. It follows, the object here sought is not to provide more housing for people of low income or for anyone else, and is not to relieve a housing shortage of any kind. The object is to clear away slum or blighted areas and then to have the property redeveloped by private individuals for private purposes in such manner as the city and Housing Authority determine to be best. The power of eminent domain is to be exercised to accomplish this result. The property is to be sold to people who could have no interest in acquiring the property other than as a means to make money. If the property of one individual can be taken from another for this purpose, where does the power of eminent domain stop?'

Of course, the constitutional provisions vary, and we are bound by ours and our former decisions construing it, to which we shall later advert. In some of the states the constitutions of them have been amended for the very purpose of public housing and redevelopment. Herzinger v. Mayor & City Council of Baltimore, 1953, 203 Md. 49, 98 A.2d 87; Murray v. LaGuardia, 1943, 291 N.Y. 320, 52 N.E.2d 884; Redfern v. Board of Commissioners of Jersey City, 1948, 137 N.J.L. 356, 59 A.2d 641; State on inf. of Dalton Atty. Gen. v. Land Clearance etc. of Kansas City, 1954, 364 Mo. 974, 270 S.W.2d 44; and Land Clearance for Redevelopment Authority of City of St. Louis v. St. Louis, Mo.Sup.1954, 270 S.W.2d 58. In still other states the power of eminent domain may be exercised for a public purpose, benefit or the public welfare, as contrasted with the requirement of our constitution that it be for a public use. Redevelopment Agency, etc. v. Hayes, 1954, 122 Cal.App.2d 777, 266 P.2d 105; Schenck v. City of Pittsburg, 1950, 364 Pa. 31, 70 A.2d 612; State ex rel. Bruestle v. Rich, 1953, 159 Ohio St. 13, 110 N.E.2d 778; Nashville Housing Authority v. City of Nashville, 1951, 192 Tenn. 103, 237 S.W.2d 946; Velishka v. City of Nashua, 1954, 99 N.H. 161, 106 A.2d 571, 44 A.L.R.2d 1406; Gohld Realty Co. v. City of Hartford, 1954, 141 Conn. 135, 104 A.2d 365, 368. From the last cited we quote:

"In this state it is settled that public use means public usefulness, utility, or advantage, or what is productive of general benefit, so that any appropriating of private property by the state under its right of eminent domain, for purposes of great advantage to the community, is a taking for public use." (Citing earlier Connecticut cases.)

In the light of the varying constitutional provisions, some the result of recent amendments, and the diverse judicial interpretations of the provisions, the balance of authority is not as uneven as the numbers of decisions of opposite results indicate. Another important consideration in evaluating the decisions of contrary result by other courts is the fact that in some of them there were strong dissents. Especially noteworthy is the dissenting opinion of Chief Justice Flynn of the Supreme Court of Rhode Island, in which he was joined in result by another of the justices, in Opinion to the Governor, 1949, 76 R.I. 249, 69 A.2d 531. See also, Ajootian v. Providence Redevelopment Agency, 1952, 80 R.I. 73, 91 A.2d 21.

An unusual approach to the problem appears in David Jeffrey Co. v. City of Milwaukee, 1954, 267 Wis. 559, 66 N.W.2d 362, the opinion in which refers the exercise of the power of eminent domain to the police power and it is said that eminent domain stems from the police power. However, these powers of the sovereign are not the same, and, notably, just compensation is made in the case of the exercise of eminent domain, but none for loss by the property owner which results from constitutional exercise of the police power. Example of the latter is found in our case of Richards v. City of Columbia, supra. The distinction between the powers is pointed out in Adams v. Housing Authority of City of Daytona Beach, supra, 60 So.2d 663.

Section 17 of Article I of our State Constitution of 1895 contains the following: 'Private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made therefor.' Our controlling decisions are to the effect that 'public use' means just that and private property cannot be taken except for public use, without the consent of the owner. The following is from Riley v. Charleston Union Station Co., 71 S.C. 457, 51 S.E. 485, 496:

'It is not easy to give a definition of 'public use' which will be adequate to cover every case that may properly fall within the term, and this case does not call for an attempt to define the term. Some cases take the very broad view that 'public use' is synonymous with 'public benefit.' A more restricted view, however, would seem to better comport with the due protection of private property against spoliation under the guise of eminent domain. Judge Cooley, in his...