Nashville Housing Authority v. City of Nashville

Decision Date09 March 1951
Citation192 Tenn. 103,237 S.W.2d 946,28 Beeler 103
Parties, 192 Tenn. 103 NASHVILLE HOUSING AUTHORITY v. CITY OF NASHVILLE et al.
CourtTennessee Supreme Court

Robert L. Alexander, Nashville, for complainant.

E. C. Yokley, City Atty., Claude Callicott, City Atty., Nashville, for City of Nashville.

C. Vernon Hines, Nashville, for Robert A. McKinstry, Intervening Petitioner.

GAILOR, Justice.

Under the Declaratory Judgment Statute, Williams' Code, § 8835 et seq., the Nashville Housing Authority filed its bill against the City of Nashville and the Attorney General, to test the validity and constitutionality of Chapter 114 of the Public Acts of Tennessee for the year 1945. In the bill, the Authority asserted that it was incorporated and organized under Chapter 20 of the Public Acts, the First Extra Session of 1935, as amended; that in cooperation with the City of Nashville and the United States Government, it proposed to undertake and carry out a slum-clearance project known as 'The Capitol Hill Redevelopment Project,' in accord with the provisions and purpose of Chapter 114 of the Public Acts of 1945; that the properties behind the Capitol, to be taken and used for said Capitol Hill Redevelopment Project, were 'blighted areas' and 'slums' within the definition of the Act of 1945; and by exhibits to the bill, copies of the contracts by the authority with the City of Nashville and the U. S. Government for cooperation and appropriations necessary for the Capitol Hill Redevelopment Project, were made a part of the bill.

For brevity, we will refer in this opinion to Chapter 20, Public Acts of the Extra Session of 1935, and its subsequent amendments, as the 'Housing Authorities Law,' and to Chapter 114, Public Acts of 1945, as the 'Slum Clearance Law.'

After the filing of the bill, the Chancellor permitted one Robert A. McKinstry, a property owner whose property would be taken in the Capitol Hill Redevelopment Project, to become a party-Defendant, and file an intervening petition.

All Defendants, the City of Nashville, the Attorney General, and the Defendant McKinstry, filed a joint demurrer which presents the following propositions of law:

(1) That the grant to the Authority of the exercise of the power of eminent domain for the purposes set forth in Chapter 114, Public Acts of 1945, is in violation of Art. I, secs. 8 and 21, of the Constitution of Tennessee, and of the 14th Amendment of the Constitution of the United States.

(2) That the sale or lease of property covered by the slum area or parts thereof, after the clearance and preparation of the site for redevelopment, being leases or sales to private corporations and private persons, contravenes Art. XI, sec. 8, of the Constitution of Tennessee.

(3) That the agreement of July 7, 1950, between the Authority and the City of Nashville, by which the City agrees to provide money and services through the construction and financing of a boulevard and incidental work, to levy taxes, and provide parks, public buildings and other facilities, as a direct and primary benefit to the Redevelopment Project, entails an expenditure of public funds in contravention of Art. II, sec. 29, of the Constitution of Tennessee.

(4) That the provision of Chapter 114, Public Acts of 1945, by which the Legislature undertakes to delegate to the Authority the right and power to determine the type, nature and extent of redevelopment projects, the location thereof, the issuance of bonds, the value to be placed upon the lands for redevelopment purposes, the selection of purchasers and lessees of such land, together with the terms and conditions of sales and leases, is an improper delegation of legislative authority, and in contravention of Art. II, secs. 1 and 2, of the Constitution of Tennessee.

The Chancellor overruled all grounds of the demurrer, and when the Defendants refused to plead further, he made a declaration by which he upheld, in all particulars, the constitutionality and validity of the Act of 1945, and all incidents of the contracts for the Capitol Hill Redevelopment Project.

The case has been very ably argued and briefed by both sides, and the Tennessee Municipal League as Amicus Curiae, through the City Attorneys of Knoxville, Chattanooga and Memphis, has filed an able brief which has been of material assistance to the Court.

We observe that no question is made but that the controversy is real; that the issue presented is justiciable; and that the matters presented by the bill, make a case proper for a declaration under the Declaratory Judgments Act.

It seems to us unnecessary for the purpose of this opinion, to encumber it with a lengthy analysis of the difference between the 'Housing Authorities Law' as it was enacted by Chapter 20, Public Acts, First Extra Session of 1935, and amended by subsequent Acts of the Legislature, and the 'Slum Clearance Law' as it was enacted by Chapter 114, Public Acts of 1945. The Housing Authorities Law is carried in the 1950 supplement to Williams' Annotated Code as sections 3647.1-3647.29y, and the Slum Clearance Law is embodied in sections 3647.52-3647.63.

The Housing Authorities Law had for its purpose, the creation of an administrative authority by which slums and blighted areas might be cleared for greater public health and safety, and housing constructed on those cleared areas to be rented to families of low income. The emphasis of these Acts was on the destruction of old dwellings and the construction of new and more safe and sanitary dwellings for families of small income.

The Slum Clearance Law differs not at all in principle from the Housing Authorities Law, and is merely an extension of that legislation for the purpose as stated in the Act, of clearing 'slums' and 'blighted areas' in cities, and destroying not only old and dilapidated dwellings, but also old and dilapidated industrial and commercial buildings for the purpose of redevelopment under plan by the Authorities, not only for dwellings, but also for business, industrial and other uses. Such being our conclusion from an analysis of the various Acts making up the Housing Authorities Law, we find in reality, no serious constitutional objection that is made against the Act of 1945, that was not made against the Housing Authorities Law and rejected by the opinion delivered by the late Chief Justice Green in Knoxville Housing Authority v. City of Knoxville, 174 Tenn. 76, 123 S.W.2d 1085.

Applying that and some other decisions of this Court, we will consider briefly the four points of Constitutional Law raised by the joint demurrer to the bill, and stated above.

The first two points;----

(1) That the grant of the power of eminent domain to the Housing Authority under the Act of 1945, was improper as violating sections 8 and 21 of Art. I of the Constitution, and the XIV Amendment to the United States Constitution;

(2) That the Act of 1945 violates Art. XI, sec. 8, of the Constitution of Tennessee, by conferring special benefit on particular individuals; are so inter-related that they must be considered together.

To remove health, crime and fire hazards by slum clearance, is clearly a proper and reasonable exercise of the police power. This removal is effected by slum clearance simpliciter and the fact that under the subsequent rehabilitation or restoration, the cleared area under a project planned and supervised by the Housing Authority passes into private hands to private property is an incident which does not change the nature of the slum clearance as being a public improvement in the public interest.

The line of demarcation between the power of eminent domain and the police power, is by no means clear nor easy to draw. Theilan v. Porter, 82 Tenn. 622. Where the City of Memphis forced a railway to eliminate a grade crossing in the public safety, it was held that this was an exercise of the power of eminent domain, since by the police power the sovereign takes property and destroys it, while by eminent domain, private property is taken by public agency for later application to a different use. Illinois Cent. Railroad Co. v. Moriarty, 135 Tenn. 446, 459, 186 S.W 1053. Compare 18 Am.Jur., Eminent Domain, sec. 11; 29 C.J.S., Eminent Domain, §§ 6-16. In the present case, since slum clearance is a public purpose, Knoxville Housing Authority v. City of Knoxville, 174 Tenn. 76, 83, 123 S.W.2d 1085, and the individual citizen is to be paid reasonable compensation for the property taken, we find no constitutional objection to the exercise by the sovereign of the police power and the power of eminent domain in combination.

The same attack under sections 8 and 21 of Art. I was made on the Housing Acts of 1935, as amended, in Knoxville Housing Authority v. City of Knoxville, 174 Tenn. at pages 82, 83 and 84, 123 S.W.2d at pages 1087, 1088, where, in sustaining the grant of the right of eminent domain, Green, C. J., said:

'It is very earnestly insisted on behalf of a property owner whose holdings are included in the area to be taken over by this Housing Authority that so much of the statutes before us as undertake to confer upon the Authority the power of eminent domain is invalid, in violation of Section 8 of Article 1 of the Constitution of Tennessee and the Fourteenth Amendment to the Constitution of the United States, * * * for the reason that the purpose for which the property is to be taken is not a public purpose and the use to which the property is to be put is not a public use. This is a familiar objection to legislation of this character. As heretofore stated, taking advantage of the Federal Housing Act, legislation has been enacted in many States authorizing the creation of local Housing Authorities similar to complainant herein. The power of eminent domain has quite generally been conferred upon such organizations and uniformly sustained.

'The courts reason that the primary object of all government is to foster the health, morals and safety of the...

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