Housing Authority of City of Atlanta v. Johnson, 18068

• Decision Date: 24 February 1953
• Docket Number: No. 18068,18068
• Citation: 74 S.E.2d 891,209 Ga. 560
• Parties: HOUSING AUTHORITY OF CITY OF ATLANTA et al. v. JOHNSON et al.
• Court: Georgia Supreme Court

Page 891

74 S.E.2d 891

209 Ga. 560

HOUSING AUTHORITY OF CITY OF ATLANTA et al. v. JOHNSON et al.

No. 18068.

Supreme Court of Georgia.

Feb. 24, 1953.

Syllabus by the Court.

The judgment of the court below overruling the general demurrer was not error.

Sam S. Johnson filed his petition seeking to enjoin the Housing Authority of the City of Atlanta and the City of Atlanta from carrying out a proposed redevelopment project in the City of Atlanta. Knight Investment Company and Knight Ice Company intervented. It was alleged that the redevelopment project was being undertaken by authority of and in conformity with the provisions of the Redevelopment Law of 1946, Ga.L. 1946, p. 157. It was contended that the law was and is invalid for a number of reasons, most of which revolve around the contention that the proceeding amounts to the taking of private property, including property of the defendants in error, through the power of eminent domain for private purposes. A general demurrer to the petition and intervention was overruled, and the exception here is to the judgment.

John Izard, Jr., Robert B. Troutman, William K. Meadow, Spalding, Sibley, Troutman & Kelley, J. C. Savage and J. C. Murphy, Atlanta, for plaintiff in error.

Willingham, Gortatowsky & Morrison, Frank H. Morrison II, Julian E. Gortatowsky and Wm. G. McRae, Atlanta, for defendant in error.

William R. Gignilliat, Jr., Gainesville, Louis A. Peacock, Albany, Wingate Dykes, Americus, H. B. Williams, Americus, J. Willis Conger, Bainbridge, Henry G. Howard, Augusta, Phillip S. Ringel, Brunswick, Henry A. Stewart, Sr., Cedartown, J. Q. Davidson, Americus, Swift, Pease, Davidson & Chapman, Columbus, Dawson Kea, Dublin, Ezra E. Phillips, East Point, William P. Whelchel, Gainesville, Hammond Johnson, Jr., Gainesville, J. C. Owen, Jr., Griffin, Wyatt, Morgan & Sumner, LaGrange, C. Baxter Jones, Macon, Jones, Jones, Sparks, Benton & Cork, Macon, E. S. Sell, Jr., Macon, Sam J. Welsch, Marietta, Marson Dunaway, Rockmart, Andrews & Covington, Rome, George C. Heyward, Savannah, H. C. Eberhardt, Valdosta, R. U. Harden, Waynesboro, for parties at interest not parties to record.

WYATT, Justice.

The record in this case discloses that the redevelopment project here proposed involves 139 acres of land and a population of 5056 persons and 818 dwelling structures together with a number of structures now being use for business purposes. It is proposed to remove all buildings from the area, and thereafter the property 'shall be use for light manufacturing or industrial use, warehousing and servicing operations, and related activities.' It is further provided that 'said redevelopment plan provides for the ultimate sale or lease of the land acquired in carrying out said redevelopment project to private individuals.' Such of the property as can not be otherwise acquired is to be acquired through the use of the power of eminent domain.

The contention here is not that the law in question has not been complied with, but that the law itself is invalid and unconstitutional for a number of reasons, the main contention being that the law of 1946, supra, provides for an unlawful and illegal use of the power of eminent domain.

The right to acquire property for slum clearance and the building of rental housing for people of low income, under the provisions of the 'Housing Authorities Law', Ga.L.1937, p. 210, was settled by a full bench decision of this court in Williamson v. Housing Authority of Augusta, 186 Ga. 673, 199 S.E. 43, and has since been followed by several decisions of this court, but not without some misgivings on the part of some members of the court as now constituted, as will appear from the special concurrences in Telford v. City of Gainsville, 208 Ga. 56, 65 S.E.2d 246, 252.

The question here presented under the provisions of the 1946 act, supra, goes much further than the provisions of the 1937 act, supra, and the decisions of this court construing the 1937 act are not controlling. This court in Telford v. City of Gainsville, supra, said, 'The declared purpose of the Federal Housing Act and of our State Housing Authorities Law is the elimination of unsafe or insanitary dwelling accommodations and the construction of a substantially like number of safe and sanitary dwelling units for rent to persons of low income at rentals which they can afford.' This approach, of necessity, includes the proposition that there exists a shortage of sanitary, suitable homes for rental to people of low income. The Redevelopment Law of 1946 is based upon no such premise and accomplishes no such purpose. The act, after providing for the clearance of all buildings from blighted or slum areas and the construction of streets and sidewalks and like public improvements, authorizes the Housing authority 'to make land so acquired available first to private enterprise and then, only in the event said land is not taken by private enterprise within six months after its availability, to public agencies (including sale, lease or retention by the authority itself) in accordance with the redevelopment plan.' Ga.L.1946, § 3, par. (5), p. 159. The very purpose of the act, therefore, is, after the buildings have been cleared away from the...