In re Edward J. Jeffries Homes Housing Project, City of Detroit

• Citation: 306 Mich. 638,11 N.W.2d 272
• Decision Date: 11 October 1943
• Docket Number: No. 37.,37.
• Parties: In re EDWARD J. JEFFRIES HOMES HOUSING PROJECT, CITY OF DETROIT. Appeal of COLLINS et al.
• Court: Supreme Court of Michigan

306 Mich. 638

11 N.W.2d 272

In re EDWARD J. JEFFRIES HOMES HOUSING PROJECT, CITY OF DETROIT. Appeal of COLLINS et al.

No. 37.

Supreme Court of Michigan.

Oct. 11, 1943.

Oct. 11, 1943.

Proceedings in the matter of the petition of the City of Detroit for the acquiring of land for the Edward J. Jeffries Homes Housing Project in the City of Detroit. From awards made, parties, owning 36 of the 581 parcels involved, appeal.

Affirmed.Appeal from Recorder's Court of Detroit; W. McKay Skillman, judge.

Before the Entire Bench.

Sol Lumberg, of Detroit, for James Watchmaker, appellant.

Leemon & Leemon, William S. McDowell, Richard S. Weber, H. C. L. Forler, Edgar F. Mansfield, Norman A. Leemon, Joseph Mazer, Oscar Adelman, and Firmon Lush, all of Detroit, for other appellants.

Paul E. Krause, Clarence E. Page, and Walter E. Vashak, all of Detroit, for City of Detroit, appellee.

BUTZEL, Justice.

Certain respondents appeal from awards made in condemnation proceedings in the recorder's court of the city of Detroit to appropriate property for the Edward J. Jeffries Housing Project. The city sought to condemn 581 parcels of property in which approximately 2,500 residents were interested. The properties were located in two rectangular sections of an old part of the city of Detroit, the larger of the two tracts being almost diagonally across from the northwest corner of the smaller one and thus both were in proximity to each other. No objection is made to the sufficiency of the pleadings or the drafting of the jury, but questions as to the necessity of the taking and the adequacy of the amounts awarded for the respective properties are raised on appeal by respondents owning 36 of the 581 parcels.

There is sufficient testimony in the record to show that many of the buildings in the section sought to be condemned were not suitable for residence purposes. There were 633 structures on the property, 441 of which were erected prior to 1895, and only 16 of which were erected since 1919. Sixty per cent. of the dwellings were termed ‘substandard’ from the physical standpoint but there was no serious overcrowding. Most of the lots as well as some of the streets were short and narrow and many of the dwellings were in such close proximity to each other as to shut off the light and air from the sides. There was but little space for recreational activities for children who necessarily had to play on narrow and irregular streets. Adequate toilet and bathroom facilities were lacking in many houses. Testimony was given as to the social effects of the clearance of congested areas and how other housing projects reduced the rates of crime and disease to a very large extent. Reference was made in particular to the Brewster Street Project. A Detroit jury would be much impressed by this project whose new homes on spacious grounds stand out like an oasis amid the old tumbledown frame houses of the adjoining neighborhood. The jury moreover had the advantage of inspecting the entire site for the project and evidently made a careful and thorough study. After being impanelled, it spent 12 days in viewing the property, and also visited it on a number of occasions during the following 63 days of deliberations. Condemnation proceedings are inquisitorial and under the charter of the city of Detroit and according to the principles of the common law the jury is the judge of law and fact. Its conclusions need not be based entirely on the testimony but it may use its own judgment and knowledge from a view of the premises and its experience as freeholders. In re Parkside Housing Project, 290 Mich. 582, 287 N.W. 571;In re Widening of South Dix Avenue, 262 Mich, 233, 247 N.W. 166;Ontonagon R. Co. v. Norton, 236 Mich. 187, 210 N.W. 480;In re Widening of Bagley Avenue, 248 Mich. 1, 226 N.W. 688.

The claim is made, however, that without a specific showing of health conditions, delinquency and traffic accidents, there is no necessary relation between poor housing and the public welfare. An exhaustive discussion of the social effects of slums is unnecessary in every case. Judicial notice may be taken of the facts that the razing of insanitary dwellings tends to diminish the potentialities of epidemics, crime and waste, and that the destruction of slums at their focal centers prevents the spread of crime and disease to uninfected areas and enhances the physical and moral values of the surrounding communities. Public necessity does not require that the evil be absolute. Whether a housing situation may be deemed to be detrimental to the public safety or morals is a matter of common sense and sound discretion, and where the question is debatable, its determination has appropriately been left to the jury. Stockus v. Boston Housing Authority, 304 Mass. 507, 24 N.E.2d 333. Even if we might have come to a different conclusion, the jury had the benefit not only of seeing the witnesses and hearing the testimony but also of visiting the properties and we may not disturb their conclusions unless there is reversible error.

Appellants claim that the taking of private property by eminent domain in the absence of slum clearance is not a taking for public use. We held in Re Brewster Street Housing Site, 291 Mich. 313, 289 N.W. 493, that the power of eminent domain may be employed for acquiring property for slum clearance and low cost housing. Since the jury found in the instant case that it was necessary to acquire the land for these public purposes, we need not decide whether a municipality can validity condemn property where the main purpose may be better housing but slum clearance is also involved. See In re Brewster St. Housing Site, supra; Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 200 A. 834;Allydonn Realty Corp. v. Holyoke Housing Authority, 304 Mass. 288, 23 N.E.2d 665. Necessity having been found, the question of whether this type of improvement is a public use becomes foreclosed by our prior decisions.

The fact that some desirable homes will be destroyed by the project does not affect the public character of the proceedings. Since slums can be eradicated only by the replanning of entire neighborhoods, the few exceptions cannot be held to change the general condition. There is no question, as counsel contend, but that the housing program provides an indirect subsidy in the form of rental below its real value to a group of tenants of limited income. But those who need only some help in securing healthful living conditions are as deserving of public aid as those who cannot contribute anything. The public is interested not only in slum clearance but also in giving healthful and moral surroundings to those with very small incomes who cannot afford to rent better homes. It will receive more than adequate return through the diminution of crime and disease and the securing of a better class of citizens. Years of experience heretofore have proven that the construction of such homes has rarely been regarded as an attractive financial investment by private capital. The necessity of the project being obvious, there is no violation of constitutional guaranties in limiting its direct benefits to those of moderate income. Williamson v. Housing Authority of Augusta, 186 Ga. 673, 199 S.E. 43.

Some of the appellants further claim that while the jury found that it was necessary to take the property, it did not find that it was necessary to make the improvement. The judge instructed the jury that if they found from the evidence presented that there was insufficient evidence to find a verdict of necessity, then the verdict must be of no necessity; that in determining the question of necessity, the jury must find whether or not the project was necessary, not whether it was necessary to take the land for the proposed project; that if it found that the construction of the project at the present time was not a public necessity, the verdict must be one of ‘not necessary.’ We believe the jury was not in any way misled, and that their verdict covered both the necessity for the improvement as well as for the taking of the particular properties. The form of the verdict followed the statute, 1 Comp.Laws 1929, § 3794 (Stat.Ann. § 8.51) and was approved in Re Harper Ave., 237 Mich. 684, 213 N.W. 74.

The trial judge did make one unfortunate remark early in the trial in stating in the presence of the jury to one of the attorneys for the respondents that it was up to him to satisfy the jury by the preponderance of the testimony that the project was unnecessary. This was clearly an erroneous statement. However, as far as the record shows, no objection was made to this statement and it is admitted by counsel for one of the appellants, who stresses the error, that the court attempted to correct this statement in his charge to the jury. He told them in no uncertain terms that they were to determine the necessity not only by what they had heard in court, but also by a view and inspection of the property; that the burden of proof was on the city to show the existence of a public necessity and that there was no burden on respondents to show no necessity. No objection having been made and the mistake having been corrected, it was not reversible error.

During the trial excerpts were read from the Sixth Annual Report of the Detroit Housing Commission by counsel for some of the defendants over objection of an attorney for the city of Detroit. One excerpt stated that the selection of the sites was the result of an effort to have a large project for white families. No further reference was made to this excerpt and its unfortunate limitation is not of the least binding force. The initiating petition did not limit the project to use by white families and the housing commission is still free to make a proper and legal use of the property if and when the project is completed.

Objection is made also to the limitation of the proposed use of the project to persons in certain sized families to the...