In re Brewster St. Hous. Site in City of Detroit

• Decision Date: 19 December 1939
• Docket Number: No. 144.,144.
• Citation: 289 N.W. 493,291 Mich. 313
• Parties: In re BREWSTER STREET HOUSING SITE IN CITY OF DETROIT.
• Court: Michigan Supreme Court

291 Mich. 313

289 N.W. 493

In re BREWSTER STREET HOUSING SITE IN CITY OF DETROIT.

No. 144.

Supreme Court of Michigan.

Dec. 19, 1939.

Proceeding in the matter of the petition of the City of Detroit for the acquiring of land for the Brewster Street Housing site. From a judgment in favor of the city, the property owners appeal.

Affirmed.Appeal from Recorder's Court of Detroit; Edward J. Jeffries, judge.

Argued before the Entire Bench.

Joseph B. Beckenstein, of Detroit, for respondent-appellant Frank J. weber.

Richard S. Weber, of Detroit, for respondent-appellant Florence K. Weber.

Raymond J. Kelly, Corp. Counsel, John P. O'Hara, Former Corp. Counsel, James H. Lee, Asst. Corp. Counsel, and Vance G. Ingalls, Asst. Corp. Counsel, all of Detroit, for petitioner-appellee.

POTTER, Justice.

This is an appeal from a proceeding under Act No. 18, Pub.Acts 1933 (Ex.Sess.), as amended, and ordinance 262-C of the city of Detroit, as amended, to establish the necessity for the use of, and compensation to be paid for, five parcels of land sought to be obtained by the city of Detroit for a housing project.

Appellants' property is located in certain blocks in the city of Detroit, the remainder of which has been acquired by the Detroit housing commission for low-cost housing purposes. With the exception of appellants' parcels, the project includes all of the property in eleven blocks in Detroit, between Mack avenue on the north, Brewster street on the south, Beaubien street on the west, and Hastings street on the east. Appellants' property is situated in the two blocks on Mack avenue at the northern end of the project and in the one block on Brewster street at the south. These three blocks are referred to in the record as blocks 5, 6 and 11.

Since the beginning of the project under the National Industrial Recovery Act, title 2, 40 U.S.C.A. § 401 et seq., in 1933, low-cost dwellings have been erected upon all of the blocks excepting upon blocks 1, 5, 10 and 11. These accommodations provide for 703 families. Because of continued crowded and unsanitary conditions in the district, the common council of the city of Detroit, acting upon the recommendations of a special investigating committee headed by the council president, voted to extend this project, known as the Brewster housing project, to provide for 248 more families. To this end, plans were made to erect low-cost housing apartments upon blocks 5 and 6, and to provide recreational facilities upon all of the property in block 11. In order to own all of the property in blocks 5, 6 and 11, condemnation proceedings were begun by the city before the late Judge Jeffries in the recorder's court, and from a jury finding for the city appellants appeal to this court claiming unconstitutionality of the Michigan housing act and ordinances of the city of Detroit and numerous errors by the court below.

In 1933, the congress of the United States, as part of its public works program, provided by the National Industrial Recovery Act, title 2, for the spending of money for low-cost housing and slum-clearance projects. 48 Stat. 195, 200, 40 U.S.C.A. § 401 et seq. The program was directed by a Federal emergency administrator of public works who was empowered, upon such terms as the president should prescribe, to make grants to States, municipalities, or other public bodies for the construction, improvement, or repair of low-cost housing and slum-clearance projects, and to acquire by purchase or the power of eminent domain any real or personal property in connection with the construction of such project. See 40 U.S.C.A. §§ 402, 403(a). Congress appropriated $3,300,000,000 to carry on the purposes of the act.

In order to make the State eligible to participate, the governor summoned the Michigan legislature to an extra session convening November 22, 1933. While in session, the legislature received a message from the governor which stated in effect that the National Industrial Recovery Act had appropriated $3,300,000,000 for public works; that, although the people of Michigan were paying their proportion of the appropriated fund, the State and its municipal subdivisions had failed to qualify a single project; that the reason for the failure to qualify was constitutional prohibitions which could be surmounted only by the passage of emergency legislation dealing with the subject; and to that end he presented to the legislature for its consideration a housing bill, drafted by the corporation counsel of the city of Detroit and approved by the public works administrator, which was designed to permit Michigan municipalities to undertake such work. Michigan House J1. (Ex.Sess.1933-1934), pp. 89, 90.

The legislature, January 9, 1934, passed Act No. 18, Pub.Acts 1933 (Ex.Sess.). Section 2 provides that any city or incorporated village having a populationof over 500,000 is authorized ‘to purchase, acquire, construct, maintain, operate, improve, extend, and/or repair housing facilities and to eliminate housing conditions which are detrimental to the public peace, health, safety, morals, and/or welfare.’ Section 3 authorizes any city with a population of over 500,000 to create by ordinance a commission with power to accomplish the purposes set forth in section 2. Section 4 provided that the commission should consist of five members who should serve for five years without compensation, to be appointed by the governor. Act No. 80, Pub.Acts 1935, amended section 4 to provide that the commission shall consist of five members to be appointed by the chief administrative officer of the city or incorporated village. Section 7 provides that the commission shall have the power and duty, (a) to determine in what areas of the city it is necessary to provide sanitary housing facilities for families of low income and for elimination of housing conditions injurious to public health; (b) to purchase, lease, sell, exchange, transfer, assign and mortgage any property, real or personal, or any interest therein, or acquire the same by gift, bequest, or under the power of eminent domain; to own, hold, clear and improve such property, or alter, improve or extend; to lease or operate any housing project or projects; (c) to rent only to such tenants as are unable to pay for more expensive housing accommodations. Section 10 provides that the commission may recommend to the governing body the prosecution of eminent domain proceedings. It also says: ‘Housing projects contemplated by this act are hereby declared to be for public purposes within the meaning of the constitution, state laws and charters relative to the power of eminent domain.’

Section 17 which provided the commission might borrow money and issue bonds therefor, and section 27 which provided for rentals, were both substantially amended in 1938 by Act No. 5, Pub.Acts 1938 (Ex.Sess.).

Section 40 states: ‘This act, being necessary for and to secure the public peace, health, safety, convenience and welfare of the cities and incorporated villages and the people of the state of Michigan, shall be liberally construed to effect the purposes thereof.’

Section 43 recites that, whereas, there is a demand in congested sections of Michigan for housing of families of low income and for the reconstruction of slum areas and no existing laws or charters provide for the organization of public housing commissions as contemplated in the National Industrial Recovery Act, ‘This act is hereby declared to be immediately necessary for the preservation of the public peace, health, safety, convenience and welfare of the people of the state of Michigan.’

After the passage of this act, the city of Detroit adopted ordinance 262-C creating the Detroit housing commission, whose members were to be appointed by the governor, and whose powers were the same as those enumerated in section 7 of the Michigan housing act. The ordinance was approved by Mayor Frank Couzens, January 15, 1934. Pursuant to the authority vested in it by this legislation, the Detroit housing commission undertook a study of housing conditions in the city of Detroit. This study indicated that nowhere else were housing conditions more inadequate and unsanitary than in the district on Hastings street. Accordingly, 10 city blocks between Rowena street on the north and Brewster street on the south were selected as the site of the first projects.

April 17, 1935, a petition was filed in the Federal district court in Detroit by the emergency administrator of public works to condemn the selected area. Among the parcels of land sought to be condemned were the same five parcels involved here. While a hearing on this petition was pending, the United States circuit court of appeals for the sixth circuit, July 15, 1935, sustained a demurrer to a petition brought by the Federal emergency administrator to condemn four city blocks in the city of Louisville for low-cost housing and slum-clearance. The court held: ‘In the exercise of its police power, a state may do those things which benefit the health, morals, and welfare of its people, but the federal givernment has no such power within the states.’ United States v. Certain Lands in City of Lousiville, 6 Cir., 78 F.2d 684.

October 23, 1935, the Federal district court at Detroit, finding that the issues presented to it were identical with the issues in the Louisville case and feeling bound by the Louisville decision, sustained a motion to dismiss the condemnation proceedings on the ground they were not for a public use under the Federal Constitution. United States v. Certain Lands in City of Detroit, D.C., 12 F.Supp. 345. All attempts by the United States to acquire the Detroit property by condemnation were abandoned, options were taken, and all of the land in the before-mentioned area, with the exception of the five parcels involvedin the present proceedings, was acquired by voluntary purchase.

Meanwhile, the congress of the United States, finding its housing program impaired by the...