Ferch v. Housing Authority of Cass County

• Decision Date: 22 July 1953
• Docket Number: No. 7357,7357
• Citation: 79 N.D. 764,59 N.W.2d 849
• Parties: FERCH v. HOUSING AUTHORITY OF CASS COUNTY et al.
• Court: North Dakota Supreme Court

Page 849

59 N.W.2d 849

79 N.D. 764

FERCH v. HOUSING AUTHORITY OF CASS COUNTY et al.

No. 7357.

Supreme Court of North Dakota.

July 22, 1953.

Syllabus by the Court.

1. 'Every reasonable presumption is in favor of the constitutionality of a statute enacted by the legislature. This presumption is conclusive, unless it is clearly shown that the enactment is prohibited by the constitution of the state or of the United States.' Stark v. City of Jamestown, 76 N.D. 422, 37 N.W.2d 516.

2. In construing a statute the history of the times and the changing conceptions of the scope and functions of the government may be considered in order to determine its purpose and as an aid in determining its validity. The concept of 'public use' naturally expands as the complexities of society and governmental activities increase.

3. The primary object of all government is to provide for the welfare of its citizens. For that purpose laws are enacted to foster the health, morals and safety of the people. Taxes are levied to carry out such purposes.

4. The declaration of policy by the legislature is not necessarily binding upon the courts, but is entitled to great weight. It is not within the prerogative of courts to interfere with the legislative finding unless it clearly appears to be erroneous and without reasonable foundation.

5. The elimination of slums and the erection of safe and sanitary low rent dwelling units for persons of low income for the purpose of advancing the public welfare and protecting the public safety and morals are public uses and purposes for which public money may be expended and private property acquired.

6. The building of low rent sanitary housing for the use of service men, veterans and their families, when an acute shortage of housing exists, is for a public purpose.

7. Slum clearance and public housing projects for low income families, being public purposes, warranted the granting of the right of eminent domain to the housing authorities under Chapter 23-11 NDRC 1943.

8. The erection of low rent housing under the provisions of Chapter 23-11 NDRC 1943 being for the public good does not deprive the owners of private rental properties in the community of property without due process of law. Their injuries, if any, must be subjugated to the public good.

9. The legislature cannot delegate power to make a law but it may delegate to the governing board of a municipality the power and authority of ascertaining the facts upon which the law is to become effective.

10. Chapter 23-11 NDRC 1943 is not class legislation and does not grant special privileges or immunities to persons of low income contrary to Article I, Sec. 20 of the Constitution since the statutory classification is neither arbitrary nor unreasonable.

11. The legislature is not restricted by Article VI, Sec. 130 of the Constitution, which provides for the organization of municipal corporations by general law, from creating a public agency to be known as the State Housing Authority for carrying out public functions in connection with low rent housing.

12. The property of the housing authorities under Chapter 23-11 NDRC 1943, being public property, is not subject to taxation and the act creating such tax free authorities and providing for payments in lieu of taxes is not subject to the tax provisions of Article XI, Sec. 178; Article II, Sec. 69; and Article XI, Sec. 176 of the Constitution of North Dakota.

13. Since the special provisions of Chapter 23-11 NDRC 1943 provide that the bonds and liabilities of the housing authorities shall be paid solely out of the income and property of the housing authorities, they do not become the liabilities of the local municipality in any way.

14. The determination of facts upon which legislation is to be enacted is for the legislature alone and when it delegates to the governing board of the city or county the finding of those facts before the law becomes effective, it has the power to declare such finding by the board conclusive. The findings so made cannot ordinarily be questioned in court.

15. The provision in Section 23-1104 NDRC 1943 to the effect that 'the authority shall be conclusively deemed to have become established and authorized to transact business and exercise its powers hereunder upon proof of the adoption of a resolution by the governing body of the city or county declaring the need for the authority' does not give the governing body judicial power nor violate Article I, Sec. 22 of the Constitution.

16. Article II, Sec. 61 of the Constitution, providing that no act shall relate to more than one subject, such subject to be expressed in the title, requires merely that the contents of the act be so related to the title as to be clearly embraced within its terms or to be germane thereto. The provision granting the right of eminent domain to the housing authorities in Chapter 23-11 NDRC 1943 comes within that requirement.

(17) Where a statute has been incorporated in the Revised Code and adopted as a part of the complete statutes of the state it becomes valid even if the original enactment fails to comply with the provisions of Article II, Sec. 61 of the constitution in regard to the title.

(18) Even if an emergency clause is attached to a law contrary to the provisions of Article II, Sec. 67 that would not affect the validity of the law itself. Only the emergency clause would be affected.

(19) A city can enter into a cooperation agreement with a housing authority on matters which are within the general powers granted to the city.

Leonell W. Fraase, Fargo, for plaintiff and appellant.

Ohnstad & McCauley, West Fargo, for defendants and respondents.

Dean Winkjer, Williston, as Amicus Curiae.

GRIMSON, Judge.

The plaintiff, on behalf of himself and other taxpayers similarly situated, sought an injunction in district court to have the defendants restrained from completing arrangements with the Public Housing Administration, a federally owned corporation, for the purpose of effecting a slum clearance and low rent housing program in the City of Southwest Fargo. The district court found in favor of the defendants and plaintiff appeals.

The following facts are admitted: The plaintiff is a citizen, resident, taxpayer and owner of real estate in the City of Southwest Fargo, a municipal corporation. The defendant, the Housing Authority of Cass County, hereinafter referred to as the Authority, was organized in accordance with the provisions of Chapter 23-1 NDRC 1943 and 1949 Supplement, the North Dakota Housing Authorities Law, by a resolution of the Board of Commissioners of Cass County on April 5, 1951, and claims all the powers, duties, rights and privileges provided therein. The defendant City of Southwest Fargo is a duly incorporated city under the laws of North Dakota. The Public Housing Administration is a federal corporation organized under the U. S. Housing Act of 1937, 42 U.S.C.A. Secs. 1401-1430, as amended, for the purpose of aiding local public housing agencies in the development and operation of slum clearance and low rent housing projects. On April 10, 1951, the Housing Authority of Cass County and the City of Southwest Fargo entered into a 'cooperation agreement' as required by the Federal Housing Administration providing for the cooperation of the two bodies in slum clearance and in the development of a low rent housing project. On the 16th day of May, 1951, the Housing Authority of Cass County applied to the Public Housing Administration for a program reservation for 36 dwelling units of a proposed low rent and slum clearance housing project in the City of Southwest Fargo and for a loan of $7200 for the purpose of preliminary serveys and planning. On July 6, 1951, the Public Housing Administration approved such program for 24 dwelling units. The Housing Authority of Cass County has applied for a preliminary loan of $4800 of which $960 has been received. The Housing Authority of Cass County now intends to enter into a further contract with the Public Housing Administration for a loan of $200,000, being 90 per cent of the cost of the proposed project, and plans to go on with the project under the federal and state housing laws.

The plaintiff claims that the defendants should be enjoined from proceeding further along this line on the grounds that the State Act, Chap. 23-11 NDRC 1943 and 1949 Supplement, under which they are acting, is unconstitutional and that the cooperation agreement is ultra vires and void.

It is a well established rule in this jurisdiction that a statute enacted by the legislature is presumed to be constitutional. This presumption is conclusive unless it is clearly shown that the enactment is prohibited by the constitution of the state or of the United States. The burden of showing unconstitutionality is upon him who alleges that some particular provision of the state or federal constitution has been violated. Stark v. City of Jamestown, 76 N.D. 422, 37 N.W.2d 516; State ex rel. Sathre v. Board of University & School Lands, 65 N.D. 687, 262 N.W. 60; State ex rel. Linde v. Taylor, 33 N.D. 76, 85, 86, 156 N.W. 561, L.R.A.1918B 156, Ann.Cas.1918A, 583.

'All statutes must be construed, if possible, so as to give them validity, force, and effect, and carry out the will of the legislator. In doing this, respect must always be had to the language of the statute, the plain and obvious meaning of the words used, and * * * their objects and purposes'. People v. Sweetser, 1 Dak. 308 (Reprint page 295), 46 N.W. 452, 453.

'The courts invariably give the most careful consideration to questions involving the interpretation and application of the Constitution and approach constitutional questions with great deliberation, exercising their power in this respect with the greatest possible caution and even reluctance; and they should never declare a statute void, unless its invalidity is, in their judgment, beyond reasonable doubt.' 11 Am.Jur., Constitutional...