Lennox v. Hous. Auth. of City of Omaha

• Decision Date: 26 March 1940
• Docket Number: No. 30841.,30841.
• Citation: 290 N.W. 451,137 Neb. 582
• Parties: LENNOX ET AL. v. HOUSING AUTHORITY OF CITY OF OMAHA ET AL.
• Court: Nebraska Supreme Court

137 Neb. 582

290 N.W. 451

LENNOX ET AL.

v.HOUSING AUTHORITY OF CITY OF OMAHA ET AL.

No. 30841.

Supreme Court of Nebraska.

Feb. 23, 1940.

Supplemental Opinion March 26, 1940.

See 291 N.W. 100.

Syllabus by the Court.

1. When constitutional restrictions are not imposed, the legislature may by curative act validate any proceeding which it might have lawfully authorized in the first instance.

2. The legislature cannot by curative act destroy vested rights or impair obligations of contracts.

3. Where a housing authority act passed in 1935 is alleged to contravene constitutional provisions, such allegations are not material where it appears that the legislature in 1937 passed additional supplemental and independent legislation remedying the alleged defects, when it does not appear that a judicial determination of unconstitutionalityhas intervened, that vested rights were infringed, or the obligations of contracts impaired thereby.

4. Statutes pari materia must be construed together so as to give effect to all, if possible.

5. The housing authority acts described in the opinion, providing for slum clearance and low-rent housing for persons of low income by means of assistance of the Federal Housing Authority, constitute a proper exercise of the police power of the state to protect the health, safety, morals and general welfare of its people.

6. The elimination of unsafe and dilapidated tenements by replacement with safe, sanitary, low-rent dwellings is a legitimate object for the exercise of the police power.

7. Statutes creating housing authorities to operate for slum clearance and construction of dwellings for persons of low income, and granting the housing authority the right of eminent domain for the accomplishment of such public purpose, are not violative of the due process clauses of the state and federal Constitutions.

8. Neither are such statutes violative of the provisions of the state Constitution prohibiting the taking or damaging of private property for public use without compensation.

9. The housing authority acts do not grant special privileges to those entitled to housing benefits, for the reason that they involve a public purpose from which the entire community will benefit.

10. The granting of administrative discretion is not an unconstitutional delegation of a legislative function where adequate standards to guide the exercise of such discretion are provided for by the statute authorizing it.

11. The housing authority acts are designed to enable local housing authorities to attain slum clearance and low-rent housing by means of assistance from Federal Housing Authority, and do not delegate legislative functions to the housing authority.

12. The legislature cannot delegate its powers to make a law, but it can make a law to become operative on the happening of a certain contingency or on an ascertainment of a fact upon which the law intends to make its own action depend.

13. In eradicating the slum menace the housing authority lightens the burden of the city in protecting all citizens against disease, crime and immorality. Public funds of the city may, with legislative sanction, be used to aid in the establishment of a housing authority, it being a governmental subdivision organized for a public purpose.

14. Under statutes creating housing authority to operate for slum clearance and construction of dwellings for persons of low income, the housing authority is a governmental subdivision within the purview of the Constitution, and its property and bonds are legally exempted from taxation.

15. Housing authority acts held not to be broader than their respective titles.

16. The federal government has no power to take or condemn private property for low-rent housing and slum clearance projects, since such purpose is not a public use within the purview of the federal Constitution.

17. The provisions of section 4, ch. 91, Laws 1937, providing for the conveyance of property to the federal government for slum clearance and low-rent housing projects, are invalid.

18. When it appears that unconstitutional portions of an act can be separated from the valid portions and the latter enforced independent of the former, and it further appears that the invalid portions did not constitute such an inducement to the passage of the valid parts that they would not have been passed without them, the former may be rejected and the latter upheld.

19. Whether statutes relating to slum clearance and construction of dwellings for persons of low income will accomplish object of ridding communities of unsafe and objectionable dwellings is a matter of legislative concern and not for the courts.

20. It is not the function of the courts to pass on the wisdom of legislative action.

Appeal from District Court, Douglas County; Rine, Judge.

Action by Dr. G. B. Lennox and others, and all other persons in like or similar condition or situation, against the Housing Authority of the City of Omaha and others for a declaratory judgment as to the constitutionality of the housing authority acts. From a judgment dismissing the petition, the plaintiffs appeal.

Judgment in accordance with opinion.

Kelso A. Morgan and Burbank & Burbank, all of Omaha, for appellants.

Philip M. Klutznick, Eugene D. O'Sullivan, Harold C. Linahan, W. W. Wenstrand, and Edward Sklenicka, all of Omaha, for appellees.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

CARTER, Justice.

This is an appeal from a judgment of the district court for Douglas county dismissing plaintiff's petition in which a declaratory judgment as to the constitutionality of chapter 29, Laws 1935, and chapters 91, 92, 93 and 94, Laws 1937, commonly called the housing authority acts, was sought.

This suit was filed by plaintiffs in behalf of themselves and all others similarly situated. One of the plaintiffs is a property owner and taxpayer within the territorial limits of the housing authority project involved herein. The other plaintiffs own property outside the project and are taxpayers in the city of Omaha. The Housing Authority of the City of Omaha, the city of Omaha and their respective officers are made parties defendant. It is alleged that the Housing Authority of the City of Omaha was created under the provisions of chapter 29, Laws 1935 heretofore described, and that all of said act is wholly unconstitutional and void, because (a) it delegates legislative authority to the governing board of the city and the five persons appointed to constitute the housing authority, contrary to section 1, art. II, and section 1, art. III of the state Constitution; (b) it fails to set up rules, standards and criteria to determine where a project is to be established, thereby resulting in the taking of private property without due process of law in violation of section 3, art. I of the state Constitution, and the Fourteenth Amendment to the Constitution of the United States, U.S.C. A.; (c) that the body of the act is broader than its title, and (d) that the title contains more than one subject, contrary to section 14, art. III, of the state Constitution. For the foregoing reasons it is contended that the act is absolutely null and void. It is then alleged that the legislature at its 1937 session passed chapter 92, Laws 1937, to legalize the creation and establishment of housing authorities in metropolitan cities and to make valid the unconstitutional provisions of chapter 29, Laws 1935. Plaintiff contends that said chapter 92, Laws 1937, has no such validating effect. The petition alleges that a legislative policy was for the first time announced with the enactment of chapters 91, 93 and 94, Laws 1937, wherein the legislature finds that conditions exist in the state which constitute a menace to the health, safety, morals and welfare of its residents and justifies the enactment of the housing authority acts. It is contended that all of said acts delegate legislative authority contrary to constitutional provisions; that all of said acts passed by the 1937 legislature are amendatory of and supplemental to the 1935 act, although they were passed as independent acts; that all of said acts purport to take property for a public purpose to correct an emergent condition, where in fact there is no public purpose and no emergent condition, and that said acts are therefore prohibited by sections 3, 21 and 25, art. I of the state Constitution, and the Fourteenth Amendment to the federal Constitution; and that said acts are class legislation inhibited by section 18, art. III of the state Constitution. It is further contended that section 4, ch. 91, Laws 1937, authorizing the housing authority to sell property to the federal government, contravenes the due process clauses of the state and federal Constitutions. There is set out in the petition the ordinance passed by the city council of the city of Omaha, creating the housing authority; a copy of an agreement releasing taxes and other charges; a copy of the cooperation agreement between the city of Omaha and the housing authority, the resolution of approval on the part of the city and the authorization of Project No. Nebraska 1-2, involved herein. It is contended that the proceedings set out do not conform to the applicable statutes, and, if they do, that said statutes are violative of sections 3, 16, 21, 24 and 25, art. I; section 1, art. II; sections 1, 14 and 18, art. III; sections 1, 2, 4, 6 and 7, art. VIII of the state Constitution, and the Fifth and Fourteenth Amendments to the Constitution of the United States, U.S.C.A.

[1][2] Plaintiffs contend that chapter 29, Laws 1935, is unconstitutional for the reasons hereinbefore set out, and that the attempt of the legislature to validate the the acts performed thereunder by the enactment of chapter 92, Laws 1937, is ineffective for any purpose. The aforesaid validating act says: “The creation and establishment of housing authorities under the provisions of Chapter 29,...