Housing Authority v. Higginbotham

• Decision Date: 26 June 1940
• Docket Number: No. 7675.,7675.
• Citation: 143 S.W.2d 79
• Parties: HOUSING AUTHORITY OF CITY OF DALLAS et al. v. HIGGINBOTHAM et al.
• Court: Texas Supreme Court

143 S.W.2d 79

HOUSING AUTHORITY OF CITY OF DALLAS et al. v. HIGGINBOTHAM et al.

No. 7675.

Supreme Court of Texas.

June 26, 1940.

COPYRIGHT MATERIAL OMITTED

Certified Question from Court of Civil Appeals of Fifth Supreme Judicial Disrict.

Proceeding by Will Higginbotham and others to enjoin the Housing Authority of the City of Dallas and others from seeking to condemn property belonging to the plaintiffs.

From a decree granting a temporary injunction, defendant appealed to the Court of Civil Appeals which certified constitutional questions to the Supreme Court.

Questions answered.

H. P. Kucera, City Atty., and Scurry & Scurry, all of Dallas, for appellants.

Samuels, Foster, Brown & McGee, of Fort Worth, amici curiae.

Joe A. Worsham, Allen Wight, E. A. Belsterling, and Irion Worsham, all of Dallas, for appellees.

SLATTON, Commissioner.

The Housing Authority of the City of Dallas instituted proceedings under the general condemnation statutes in the county court at law of Dallas County seeking to condemn property belonging to Will Higginbotham for the establishment, construction and operation of a low rent housing project. The Authority had instituted other similar proceedings and contemplated such action against other adverse parties herein. Higginbotham and the other parties similarly situated made application to the district court of Dallas County for injunction on the grounds that the housing law was unconstitutional. The parties, through stipulation of facts and evidence, submitted the application for temporary injunction to the court and a temporary injunction was issued against the Housing Authority in conformity with the prayer of the petitioners. The Authority appealed to the Court of Civil Appeals at Dallas. That court certified the constitutional questions to this court. We quote the following important portions of the certificate of the Honorable Court of Civil Appeals:

"The Texas Housing Authorities Law, Vernon's Ann.Civ.St. Art. 1269k, generally under attack, is lengthy, and pertinent features thereof need only be referred to by section and paragraph, except as to Sec. 2 (the Legislature's finding and declaration of necessity), which we quote: `(a) That there exists in the State insanitary or unsafe dwelling accommodations and that persons of low income are forced to reside in such insanitary or unsafe accommodations; that within the State there is a shortage of safe or sanitary dwelling accommodations available at rents which persons of low income can afford and that such persons are forced to occupy overcrowded and congested dwelling accommodations; that the aforesaid conditions cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals, and welfare of the residents of the State and impair economic values; that these conditions necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health and safety, fire and accident protection, and other public services and facilities; (b) that these slum areas cannot be cleared, nor can the shortage of safe and sanitary dwellings for persons of low income be relieved, through the operation of private enterprise, and that the construction of housing projects for persons of low income (as herein defined) would therefore not be competitive with private enterprise; (c) that the clearance, replanning, and reconstruction of the areas in which insanitary or unsafe housing conditions exist and the providing of safe and sanitary dwelling accommodations for persons of low income are public uses and purposes for which public money may be spent and private property acquired and are governmental functions of State concern; that it is in the public interest that work on such projects be commenced as soon as possible in order to relieve unemployment which now constitutes an emergency; and the necessity in the public interest for the provisions hereinafter enacted; is hereby declared as a matter of legislative determination.'

"It is primarily the contention of Appellees (Plaintiffs in injunction) that, considering the purpose of the whole act, it authorizes a taking of their property not exclusively for a public use, under the Texas decisions and Constitution, with especial reference to the limitations of Art. 1, Sec. 17, Vernon's Ann.St.; that, if valid at all, the primary purpose of the Act is slum clearance; that the proceedings brought and to be brought by Appellant nowhere declare the existence of a purpose to clear any slums, but, on the other hand, the direct object of the present proceedings is the taking of private property by the power of eminent domain, for a low-cost housing project, independent of slum clearance; it being stipulated that the property sought is not in a slum area and the residences situated therein, not substandard, as defined in the law. Appellant asserts the entire validity of the State Housing Law, and that all proceedings to condemn thereunder are likewise valid.

"1. Since private property cannot be taken under the power of eminent domain unless it be for a public use; and bearing in mind the purpose and terms of the whole Act, is Sec. 12 thereof (conferring upon the Housing Authority the power of eminent domain) valid against the objection that it violates either of the following provisions of the State Constitution: of Art. 1, Sec. 3, prohibiting special privileges to individuals not in consideration of public service; of Art. 1, Sec. 17, limiting the taking of property to a public use; or, Art. 3, Secs. 52, 53, denying the grant of public money or thing of value to individuals without constitutional authority; or Art. 2, Sec. 1, invalid delegation of legislative power; or Secs. 1 and 2, Art. 8, concerning equal and uniform taxation?

"2. Does the use for which appellant Authority seeks to acquire the property in question through the condemnation proceedings, herein, constitute a public use within the meaning of Art. 1, Sec. 17 of the Constitution?

"3. The pleadings of the Plaintiff allege that the Housing Authority has instituted several condemnation proceedings against the various Plaintiffs and that the Housing Authority in its condemnation petition has not alleged that the individual pieces of property sought to be condemned were located in a slum area, such as is described under Section 3, Subdivision (h), of the Act, or that said properties and homes are being condemned for the purpose of clearing, replanning and reconstructing an area in which insanitary or unsafe housing conditions exist, for which reasons such condemnation proceedings are invalid. Is the determination of the Housing Authority of the necessity for the taking, acting within the scope of the Housing Act, and particularly Section 12, conclusive upon the Court, or is it a question of fact to be determined in each particular case involving a piece of property sought to be taken?

The Seventy-fifth Congress of the United States passed what is known as the United States Housing Act, Title 42 U.S.C.A. § 1401 et seq., which was approved September 1, 1937. In that act the Congress declared it to be the public policy of the United States to promote the general welfare by employing its funds to assist the several states to alleviate present and recurring unemployment and to remedy the unsafe and insanitary housing conditions and the acute shortage of decent, safe and sanitary dwelling for families of low income that are injurious to the health, safety and morals of the citizens of the nation. The Housing Authorities Law in Texas was passed by the legislature in 1937 at its regular session and was amended at the second called session and approved on November 3, 1937, and in addition to the legislature's finding and declaration of necessity as quoted in the certificate it defined a housing project as meaning any work or undertaking "(1) To demolish, clear, or remove buildings from any slum area; such work or undertaking may embrace the adaption of such area to public purposes, including parks or other recreational or community purposes; or (2) to provide decent, safe, and sanitary urban or rural dwellings, apartments, or other living accommodations for persons of low income; such work or undertaking may include buildings, land, equipment, facilities, and other real or personal property for necessary, convenient, or desirable appurtenances, streets, sewers, water service, parks, site preparation, gardening, administrative, community, health, recreational, educational, welfare, or other purposes; or (3) to accomplish a combination of the foregoing. The term `housing project' also may be applied to the planning of the buildings and improvements, the acquisition of property, the demolition of existing structures, the construction, reconstruction, alteration, and repair of the improvements and all other work in connection therewith."

"Persons of low income" is defined as meaning families or persons who lack the amount of income which is necessary (as determined by the authority undertaking the housing project) to enable them without financial assistance to live in decent, safe and sanitary dwellings without overcrowding.

Section 8 of the act, defining the powers of an authority, provides that an authority shall constitute a public body, corporate and politic, exercising public and essential governmental functions.

Section 9 provides that an authority shall operate its housing projects in such a manner as to enable it to fix the rentals at the lowest possible rates consistent with its providing decent, safe and sanitary dwelling accommodations and that no authority shall construct or operate any such project for profit or as a source of revenue to the city.

Section 10 of the act provides that such dwelling accommodations shall be rented only to persons of low income and shall be at rentals within the financial reach of such persons and that no person shall...