Simpson v. Low-Rent Housing Agency of Mount Ayr

• Decision Date: 18 December 1974
• Docket Number: LOW-RENT,Nos. 2--56404,2--56528,s. 2--56404
• Parties: Marie Ida SIMPSON, Appellant, v.HOUSING AGENCY OF MOUNT AYR, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 624

224 N.W.2d 624

Marie Ida SIMPSON, Appellant, v. LOW-RENT HOUSING AGENCY OF MOUNT AYR, Iowa, Appellee.

Nos. 2--56404, 2--56528.

Supreme Court of Iowa.

Dec. 18, 1974.

Wilson & Bonnett by Richard L. Wilson, Lenox, for appellant.

Duncan, Jones, Riley & Finley by Thomas A. Finley, Des Moines and William M. Warin, Mount Ayr, for appellee.

Heard before MOORE, C.J., and RAWLINGS, LeGRAND, REES and HARRIS, JJ.

RAWLINGS, Justice.

This review involves two appeals by plaintiff, both emanating from one proceeding in eminent domain. The first stems from trial court's decree annulling a writ of certiorari. The second relates to an adverse ruling on plaintiff's noticed appeal to district court from a condemnation commission award. We affirm in part, dismiss in part.

The task at hand is exceedingly difficult because of the complicated procedural background and relatively abbreviated appendix. See Iowa R.Civ.P. 344.1.

As best we can determine these are the relevant facts involved.

EMINENT DOMAIN PROCEEDINGS

November 17, 1972, after commencement of proceedings in eminent domain, the appointed commissioners determined compensation to be awarded and notice thereof was given plaintiff-condemnee.

December 18 plaintiff gave notice of appeal to Ringgold District Court from said commission award.

March 27, 1973, defendant moved to dismiss plaintiff's noticed appeal to district court or to affirm the commission award because of plaintiff's failure to file a petition within the time prescribed by The Code 1971, Section 472.22.

May 7, 1973, this attendant order was entered: 'Motion to Dismiss or Affirm is overruled provided plaintiff delivers to defendant written surrender of possession of subject premises on or before June 7, 1973; otherwise said motion is sustained, the assessment affirmed and appeal dismissed.'

June 7, 1973, plaintiff gave notice of appeal to this court from said May 7 adjudication, and again from decree entered March 21, 1973 in the certiorari action.

June 11, 1973, defendant filed 'Application to Modify and Amend Order' of May 7 because plaintiff had not, on or before June 7, vacated and surrendered the condemned property.

The same day there was entered an 'Order Modifying and Amending Previous Order' of May 7. Trial court thereby sustained defendant's motion to affirm the condemnation commission award and further decreed that in event plaintiff did not voluntarily remove herself from the property by June 22, 1973, a writ of possession be promptly issued. No appeal to this court followed the above adjudication.

June 25, 1973, a writ of possession issued.

CERTIORARI PROCEEDINGS

December 18, 1972, plaintiff filed a petition in certiorari thereby contending defendant-condemnor had no constitutional right to take and pursue the instantly involved eminent domain proceeding.

January 10, 1973, after filing of answer and reply, trial court ordered a writ of certiorari regarding defendant's condemnation authority.

March 21, after hearing was had, trial court annulled the previously issued certiorari writ.

April 19 plaintiff gave notice of appeal therefrom to this court.

ISSUES

Plaintiff here contends (1) as to the certiorari review, trial court erroneously held there existed no constitutional bar to the taking by eminent domain of plaintiff's property for construction of low-rent housing and (2) with regard to plaintiff's condemnation appeal from the commission award the aforesaid May 7, 1973 ruling was fatally obscure, uncertain and vague.

I. CERTIORARI APPEAL

Plaintiff urges the provisions of Code Chapter 403A, under which the instant eminent domain proceedings were initiated, contravene U.S.Const., Amend. V and Iowa Const. art. I, § 18, since such condemnation was for a private as opposed to a public use.

It must be initially conceded the power of eminent domain cannot be utilized for the purpose of taking private property from one person for the private use of another. See Stewart v. The Board of Supervisors of Polk County, 30 Iowa 9, 19 (1870).

Stated otherwise, the power of eminent domain can be exercised only for a public use or purpose. See Race v. Iowa Electric Light & Power Co., 257 Iowa 701, 704, 134 N.W.2d 335 (1965); R & R Welding Supply Co. v. Des Moines, 256 Iowa 973, 976, 129 N.W.2d 666 (1964); Vittetoe v. Iowa Southern Utilities Co., 255 Iowa 805, 812, 123 N.W.2d 878 (1963); Mid-Am. Pipeline Co. v. Commerce Comm., 253 Iowa 1143, 1147, 114 N.W.2d 622 (1962); Abolt v. City of Fort Madison, 252 Iowa 626, 633--634, 108 N.W.2d 263 (1961).

These authorities spring from Art. I, § 18 of the Iowa Constitution which states, inter alia: 'Private property shall not be taken for public use without just compensation * * *.' See City of Emmetsburg v. Central Iowa Tel. Co., 250 Iowa 768, 778, 96 N.W.2d 445 (1959).

It is for the legislature to initially determine whether condemnation of private property is for a public use. Vittetoe v. Iowa Southern Utilities Co., 255 Iowa at 809, 123 N.W.2d 878; Abolt v. City of Fort Madison, 252 Iowa at 634, 108 N.W.2d 263; Reter v. Davenport, R.I. & N.W. Ry. Co., 243 Iowa 1112, 1118--1119, 54 N.W.2d 863 (1952).

And in that regard an examination of Chapter 403A discloses the legislature thereby declared, in essence, low-rent housing is a public use. See Ermels v. City of Webster City, 246 Iowa 1305, 1307--1308, 71 N.W.2d 911 (1955); Reter v. Davenport, R.I. & N.W. Ry. Co., Supra.

Also, where the general assembly declares a condemnation-related use is public in nature there exists an attendant presumption of constitutionality with which this court will not interfere unless the purpose is clearly, plainly and manifestly of a private character. See Vittetoe v. Iowa Southern Utilities Co.; Abolt v. City of Fort Madison; Ermels v. City of Webster City; Reter v. Davenport, R.I. & N.W. Ry. Co., all cited above.

In like vein, every reasonable intendment must be indulged in favor of a statutory enactment. See Cedar Rapids Human Rights Commission v. Cedar Rapids Community School District, 222 N.W.2d 391 (Iowa, October 16, 1974); Ermels v. City of Webster City, Supra.

It is for the courts, however, to ultimately determine whether a taking by eminent domain is for a public purpose when constitutionality of the foundational statute is challenged. See Reter v. Davenport, R.I. & N.W. Ry. Co., Supra; Burger v. City of Beatrice, 181 Neb. 213, 147 N.W.2d 784, 788 (1967); Great Northern Ry. Co. v. Chicago, St. P., M. & O. Ry. Co., 78 S.D. 168, 99 N.W.2d 439, 443 (1959).

It is also well settled we are not required to treat a legislative declaration of purpose as final, binding or conclusive. Abolt v. City of Fort Madison, 252 Iowa at 634, 108 N.W.2d 263.

But there is no hard and fast rule by which to determine, in any given instance, whether a particular use is public or private. See Ferguson v. Illinois Cent. R. Co., 202 Iowa 508, 511--512, 210 N.W. 604 (1926); Sisson v. Supervisors, 128 Iowa 442, 453, 104 N.W. 454 (1905); Bowman v. Kansas City, 361 Mo. 14, 233 S.W.2d 26, 32 (1950).

Even so it remains for us to now determine, under applicable guiding principles, whether low-rent housing, per se, constitutes a public use.

Code § 403A.20 provides, in relevant part: 'A municipality shall have the right to acquire by condemnation any interest in real property, * * * which it may deem necessary for or in connection with a municipal housing project under this chapter.' And § 403A.2(9) defines housing project as any undertaking '(a) to * * * remove buildings from any slum areas; Or (b) to provide * * * dwellings * * * for persons of low income; Or (c) to accomplish a combination of the foregoing.' Authorization is thus given a municipality to effectuate any or all of the aforesaid goals. Furthermore, those objectives are noticeably distinct, one being designed to authorize low-rent housing alone for persons of limited income as defined in § 403A.2(10), the other permitting clearance and rehabilitation of slum areas as defined in § 403A.2(8). Undoubtedly many projects alluded to in § 403A.2(9), quoted above, will necessarily embrace both facets of the statutory purpose. On the other hand the language of the enactment here involved is in the disjunctive; one project need not accompany the other. Significantly the condemnation proceeding before us does not even faintly suggest its foundational purpose was to effectuate a combined slum clearance and low-rent housing. Thus we have at hand the condemnation of private property for statutorily permitted low-rent housing alone.

To the extent here material every municipality is given authority by § 403A.3 to undertake studies with regard to housing needs; provide for construction of low-rent dwellings; and finally to lease or rent such accommodations within the redevelopment project.

In support of the view that low-rent housing constitutes a public use, defendant alludes to Webster Realty Company v. City of Fort Dodge, 174 N.W.2d 413 (Iowa 1970). We do not find the cited case accords defendant the aid suggested.

In Webster Realty, supra, plaintiff commenced a declaratory judgment action to test validity of the issuance of general obligation bonds to finance a community construction project. This program was undertaken pursuant to The Code 1966, Chapter 403, identified as 'Urban Renewal Law.'

Plaintiff there asserted, in relevant part, Chapter 403 was unconstitutional since it permitted appropriation of funds and levying of taxes for private as opposed to public use. In upholding constitutionality of the challenged Act this court relied, in large part, on those authorities noted in 44 A.L.R.2d 1414, 1420. But an examination of the cases there cited, upholding redevelopment statutes, reveals the clearance of slums or blighted areas was the underlying rationale which prompted a finding of public use.

Illustratively, in Hunter v. Norfolk Redevelopment & Housing Author., 195 Va. 326, 78 S.E.2d 893, 900 (1953) the court said...