Lawson v. Housing Authority of City of Milwaukee

• Decision Date: 01 June 1955
• Citation: 70 N.W.2d 605,270 Wis. 269
• Parties: Joseph LAWSON, Jr., et al., Appellants, v. HOUSING AUTHORITY OF CITY OF MILWAUKEE, a municipal corporation, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 605

70 N.W.2d 605

270 Wis. 269

Joseph LAWSON, Jr., et al., Appellants, v. HOUSING AUTHORITY OF CITY OF MILWAUKEE, a municipal

corporation, et al., Respondents.

Supreme Court of Wisconsin.

June 1, 1955.

M. Michael Essin, Milwaukee, for appellants.

Walter J. Mattison, City Atty., Alan H. Steinmetz, Asst. City Atty., Milwaukee, for respondents.

CURRIE, Justice.

The following issues are presented upon this appeal:

(1) Whether the facts alleged in the amended complaint present a justiciable controversy for declaratory relief within Wisconsin's Uniform Declaratory Judgments Act, sec. 269.56, Stats.

(2) Whether the Authority is empowered to adopt its Resolution 513.

(3) Whether such resolution violates any of the provisions of the federal and state constitutions.

The defendants contend that the plaintiff tenants possess no vested right to continue to occupy the apartment in which they and their children reside in the Hillside Terrace Housing project, inasmuch as the Authority as landlord would possess the right to evict them for no reason whatsoever because of the expiration of plaintiffs' original lease. In other words, the position of the Authority is that it stands in the same category as any non-governmental landlord, and is subject to no restrictions in choosing the persons it desires as tenants of its housing project, which would not be applicable to landlords generally, except only such as are specifically prescribed by sec. 66.402(1), Stats. ¹ The defendants by their general demurrer have admitted the truth of the allegations of fact contained in the amended complaint. It appears from such allegations that the only reason the Authority seeks to evict the plaintiffs is because of their refusal to execute the requested certificate of non-membership in any of the listed organizations which have been designated as subversive by the Attorney General. We then have presented the issue of whether a governmental agency can deny to citizens a privilege, which lies within its discretion to grant or withhold, on the ground that such persons are members of an organization agitating for political or economic change, and, when such denial is challenged by court action, successfully defend on the ground that only a privilege and not a vested right is involved.

The First amendment to the United States constitution provides as follows:

'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'

While the due process clause of the Fourteenth amendment does not incorporate all of the provisions of the first ten amendments to the United States constitution so as to make the same applicable to state action, ² the freedoms of the First amendment are among the liberties of the people protected against state interference or restriction by such due process clause. ³

Secs. 3 and 4, art. I, of the Wisconsin constitution, guarantee the same freedom of speech and right of assembly and petition as do the First and Fourteenth amendments of the United States constitution. Necessarily included within such constitutionally guaranteed incidents of liberty is the right to exercise the same in union with others through membership in organizations seeking political or economic change. ⁴

If the state, or one of its political subdivisions, were to pass a criminal statute or ordinance making it unlawful for a person to belong to any organization advocating political or economic change or reform, such enactment would at once be held unconstitutional as violative of the liberties of citizens guaranteed by the First and Fourteenth amendments of the United States constitution. The holding out of a privilege to citizens by an agency of government upon condition of non-membership in certain organizations is a more subtle way of encroaching upon constitutionally protected liberties than a direct criminal statute, but it may be equally violative of the constitution. Surely a citizen, to whom such a privilege is denied on the sole basis of membership in some organization, should be accorded the right to test the constitutionality of such a regulation in court. If a precedent should be established, that a governmental agency whose regulation is attacked by court action can successfully defend such an action on the ground that the plaintiff is being deprived thereby only of a privilege, and not of a vested right, there is extreme danger that the liberties of any minority group in our population, large or small, might be swept away without the power of the courts to afford any protection.

The more that government engages in any activity formerly carried on by private enterprise, the more real is the peril. For example, the number of rental units for residence housing in the Authority's Hillside Terrace housing project constitutes a very small percentage of the total of all such units in Milwaukee, so that the number of people subjected to pressure by enforcement of Resolution 513 would constitute but a nominal percentage of the total population of the city. On the other hand, if the government, or an agency thereof, owned 90 per cent of all rental units available for private housing in the nation as a whole, or even in a particular state or municipality, the number of people subjected to pressure by such a plan, of requiring a certificate of non-membership as a condition of tenancy, would be very considerable. It is easy to foresee how those in the control of a government could use such a device to effectively undermine and render impotent any political party or other organization, which opposed their continued hold on the government, by simply labeling the same as 'subversive', if the courts were powerless to provide a remedy.

In Frost & Frost Trucking Co. v. Railroad Comm., 1926, 271 U.S. 583, 593, 46 S.Ct. 605, 607, 70 L.Ed. 1101, 47 A.L.R. 457, the United States supreme court rejected the defense of the defendant Railroad Commission that the plaintiff's cause of action was only concerned with a privilege, and not a vested right, and declared in stirring language:

'It would be a palpable incongruity to strike down an act of state legislation which, by words of express divestment, seeks to strip the citizen of rights guaranteed by the federal Constitution, but to uphold an act by which the same result is accomplished under the guise of a surrender of a right in exchange for a valuable privilege which the state threatens otherwise to withhold.'

To similar effect is the following statement by the same court in Hannegan v. Esquire, Inc., 1946, 327 U.S. 146, 156, 66 S.Ct. 456, 461, 90 L.Ed. 586:

'But grave constitutional questions are immediately raised once it is said that the use of the mails is a privilege which may be extended or withheld on any grounds whatsoever. See the dissents of Mr. Justice Brandeis and Mr. Justice Holmes in United States ex rel. Milwaukee Social Democrat Publishing Co. v. Burleson, 255 U.S. 407, 421-423, 430-432, 437, 438, 41 S.Ct. 352, 357, 358, 360, 361, 363, 65 L.Ed. 704. Under that view the second-class rate could be granted on condition that certain economic or political ideas not be disseminated.' (Italics supplied.)

Even more apropos to the facts of the instant case is the following statement appearing in the concurring opinion of Mr. Justice Frankfurter in American Communications Ass'n, C. I. O. v. Douds, 1950, 339 U.S. 382, 417, 70 S.Ct. 674, 693, 94 L.Ed. 925:

'This is so not because Congress in affording a facility can subject it to any condition it pleases. It cannot. Congress may withhold all sorts of facilities for a better life but if it affords them it cannot make them available in an obviously arbitrary way or exact surrender of freedoms unrelated to the purpose of the facilities.'

The Illinois supreme court passed upon the identical issue herein raised by the defendant Authority in the case of Chicago Housing Authority v. Blackman, 1954, 4 Ill.2d 319, 122 N.E.2d 522, 524. In that case the Chicago Housing Authority operated public housing facilities financed by federal aid, and adopted a resolution requiring its tenants to execute a certificate stating that the signer thereof swore that he is not "affiliated directly or indirectly with any communist organization or any communist front organization, or any foreign political agency, party, organization or government which advocates the overthrow of constitutional government by force or other means not permitted under the Constitution of the United States or the constitution of this State; that I do not directly or indirectly teach or advocate the overthrow of the government of the United States or of this State or any unlawful change in the form of the governments thereof by force or any unlawful means". The Chicago Housing Authority brought action to evict the defendant tenants for failure to subscribe such a certificate and secured a summary judgment ordering such eviction and the tenants appealed. The Chicago Housing Authority advanced the same argument on appeal as did the Authority in the case at bar, viz., that the tenants had no vested rights which would permit them to raise the issue of unconstitutionality. In rejecting such contention, the Illinois court declared, 122 N.E.2d at page 524:

'Appellee insists that since it could evict in any event merely by giving notice, the fact that it assigned as a reason therefor appellants' refusal to subscribe to the oath is immaterial and does not raise any constitutional issue. The argument, in other words, is that because the tenants have no legal right to occupy the housing accommodations, they cannot be deprived of any constitutional right by the requirements in question. The position is untenable. * * * Even though appellants have no right to remain as tenants of appellee...