Spahn v. Stewart

• Citation: 103 S.W.2d 651,268 Ky. 97
• Parties: SPAHN et al. v. STEWART et al.
• Decision Date: 19 February 1937
• Court: Court of Appeals of Kentucky

103 S.W.2d 651

268 Ky. 97

SPAHN et al. v. STEWART et al.

Court of Appeals of Kentucky

February 19, 1937

As Extended March 26, 1937.

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Suit by Charles R. Spahn and another, as taxpayers, to enjoin A. J Stewart and others, as members of the Municipal Housing Commission, from proceeding further under ordinance for clearance of slums and erection and maintenance of low cost houses. From a judgment sustaining a demurrer to their petition, the plaintiffs appeal.

Affirmed.

Wallace A. McKay, of Louisville, for appellants.

H. O Williams and Mark Beauchamp, both of Louisville, for appellees.

MORRIS Commissioner.

The 1934 General Assembly enacted chapter 113, authorizing cities of the first class to create a Municipal Housing Commission for the purpose of improving internal conditions by carrying out a plan for the clearance of slums and to erect and maintain low cost houses in keeping with modern, sanitary and safe methods.

The act and ordinance were so enacted and adopted that such cities might be entitled to the advantages of the provisions of Acts of Congress, extending to states and municipalities certain grants of money in furtherance of a purpose to better the standards of living.

Substantially the act provides that any city of the first class may establish an agency to investigate housing and living conditions; to plan and effectuate projects for the clearing of slum districts and to furnish instead reconstructed homes at reasonable rentals to persons of low incomes. The Commission is authorized to sell tax exempted bonds which are not to be obligations of the city, county, or state. Power of exercising the right of eminent domain is given the Commission. It was also empowered after reconstruction, to rent the new habitations, applying the proceeds of such rentals to payment of interest on and for retirement of the bonds and obligations of the Commission; to provide a sinking fund to be applied to upkeep, necessary improvements, and for deterioration. Any surplus is to go to the sinking fund of the city for the meeting of its bonded or other governmental indebtedness. Under the act the Commission may be paid limited compensation for services, either in form of a salary or per diem.

Conceiving both the act and ordinance to be invalid, appellants filed petition in the lower court seeking to perpetually enjoin the Commission from proceeding further under the ordinance mentioned. Appellant Spahn owns property within the subjected boundary; Silk, another appellant is the owner of rentable property outside the proposed boundary. Both are taxpayers and sue not only for themselves and others owning property within and without the boundary, but for all taxpayers of the city. The relief sought was denied by the lower court, demurrer to the petition being sustained, followed by dismissal upon a declination to plead further.

The pleadings fully state jurisdictional and other facts to the extent that a case is presented. The right of appellants to institute and prosecute such a suit is not challenged. The first contention of appellants is, that chapter 113 is void because it is in contravention of section 51 of the Constitution, which provides that no act shall relate to more than one subject, such subject to be expressed in the title, it being argued that there is nothing in the title of the act from which it might be inferred that there was to be extended the power of eminent domain, or that bonds were to be exempted from taxation. It is further asserted that the act undertakes to revise, amend, or extend existing laws without re-enacting such attempted revision or extension. We shall not quote the title; it may be observed by reference to Acts 1934, c. 113, p. 507. The substance of the act in terms has been set out above.

The title to the act in question is not vulnerable to the aimed criticism. We have time and again in meeting such objections held that all required by section 51 of the Constitution is that the contents of the act be so related to the title as to be clearly embraced within its terms, or as it is sometimes expressed "germane." Kelley v. Hardwick, 228 Ky. 349, 14 S.W.2d 1098. The section of the Constitution supra, does not demand, nor is it intended thereby, that the title embrace a complete synopsis of the provisions of the act, nor that it set out details minutely. The title "need only indicate the general contents [purpose] and scope of the act, and if it gives reasonable notice thereof it is sufficient." Russell v. Logan County Board of Education, 247 Ky. 703, 57 S.W.2d 681, 683. The title of the act in question may be laid down by the side of the title of the act which was attacked on like grounds in Estes v. State Highway Commission, 235 Ky. 86, 29 S.W.2d 583, and the similarity (both of title and act) will be noted. In that case we held the title commensurate. The same may be said of Klein v. City of Louisville, 224 Ky. 624, 6 S.W.2d 1104. Reference is especially made to this court's opinion in the case of Talbott v. Laffoon, 257 Ky. 773, 79 S.W.2d 244, for a comprehensive exposition of the subject under discussion.

It is true that chapter 113, supra, comprises a diversity of details necessary to carry out its purpose and intent. These details do not differ materially from such as were contained in the acts involved in the cases mentioned above, the Estes and Klein Cases being exemplary. The title here is amply broad in its scope to meet the requirements imposed by section 51 of the Constitution.

The act does not extend, revise, nor amend any existing law. At the time of its passage there was no law on our statutes in reference to slum clearance or cheaper housing. It is true we had laws, both constitutional and statutory, with relation to the power to condemn property for public use, and the exemption of property from taxation, but the act in question did not undertake to nor did it amend, revise, or repeal any of these laws. City of Bowling Green v. Kirby, 220 Ky. 839, 295 S.W. 1004; Williams v. Raceland, 245 Ky. 212, 53 S.W.2d 370; Wheeler v. Board of Com'rs of Hopkinsville, 245 Ky. 388, 53 S.W.2d 740.

Appellants contend that chapter 113, Acts of 1934, is void, since it delegates legislative powers, in that the Commission is vested with power to determine the type, nature, character, and extent of the projects to be undertaken under the ordinance, as well as to determine what properties may be acquired, the manner of acquirement and use, and to later control that use.

The two objections may be considered together and likewise answered. The act as we view it, does not delegate to the mayor of a city of the first class any legislative power. He is only given the power of appointment. This is not in any sense the exercise of more than the usual and ordinary executive power, such as filling any office created by appointment in a lawful manner. Neither do we find that the Commission is vested with legislative power. We need not again enumerate its functions.

The conclusion that there is no delegation of legislative power may well be based on the opinion in Estes v. State Highway Commission, supra, wherein the court held valid the Toll Bridge Act (Acts 1928, c. 172), vesting powers in the Highway Commission to fix rates of toll, issue bonds and fix their maturities and terms on which bids should be made and contracts accepted. The court held that no sections of the Constitution were violated by the act, the power vested being purely administrative. This case cited with approval Hunter v. Louisville, 204 Ky. 562, 265 S.W. 277, which held valid an act creating a commission to construct a memorial building in Louisville; to make and enforce rules and regulations in the management of its affairs, and to conduct its business. Klein v. Louisville et al., 224 Ky. 624, 6 S.W.2d 1104, upheld an act authorizing the building of the municipal bridge, giving a commission power to fix tolls, regulate rates and issue and retire bonds. In Craig v. O'Rear, 199 Ky. 553, 251 S.W. 828, powers to certain agencies to select locations for teachers' colleges and other powers were delegated, and in this and all the cases cited, the court held that the acts were valid, since they did not delegate powers other than administrative, hence they did not contravene the sections of the Constitution there and here invoked. Counsel for appellant has pointed to no authority from this or any other court which would militate against our conclusion that the point made is unmeritorious. Other cases in this jurisdiction may be noted as follows: Bell's Committee v. Board of Education of Harrodsburg, 192 Ky. 700, 234 S.W. 311; Douglas Park Jockey Club v. Talbott, 173 Ky. 685, 191 S.W. 474; Lawrence County v. Fiscal Court, 191 Ky. 45, 229 S.W. 139.

There are other objections urged as being sufficient to justify us in holding the act invalid. As we observe (and shall treat) them jointly and severally, it occurs that each and all inevitably turn upon the question as to whether or not the ultimate result sought constitutes a public use or purpose. A determination of this question will to all intents and purposes dispose of most, if not all of the objections forwarded, some of which are as follows:

"(a) The act and ordinance are both invalid because if carried into effect, the appellants and those for whom they speak will be deprived of their properties without due process of law, in contravention of the Fourteenth Amendment of the Constitution of the United States, and the bill of rights as set up in our Constitution [sections 1-26].

"(b) The condemnation of property as proposed under the empowering Acts cannot be legally effectuated because the

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