State ex rel. Ellis v. Sherrill
| Decision Date | 28 February 1940 |
| Docket Number | 27410. |
| Citation | 136 Ohio St. 328,25 N.E.2d 844 |
| Parties | STATE ex rel. ELLIS, City Solicitor, v. SHERRILL, City Manager. |
| Court | Ohio Supreme Court |
In this original action in mandamus, John D. Ellis, city solicitor of the city of Cincinnati, is the relator, while C. O. Sherrill city manager of the city of Cincinnati, is the respondent.
The petition, as amended and supplemented, alleges that in December of 1933 the Cincinnati Metropolitan Housing Authority was duly established under the Ohio Housing Authority Law enacted by the General Assembly, effective in September of 1933 (Section 1078-29 et seq., General Code, 115 Ohio Laws, part 2, 56), and since that time has been functioning under such law and its amendments; that the Cincinnati Housing Authority applied to the United States Housing Authority for a loan and annual contributions under the provisions of the United States Housing Act of 1937 as amended, Title 42, Section 1401 et seq., U.S.Code, 42 U.S.C.A. § 1401 et seq., to carry out certain slum clearance and low-rent housing projects in the city of Cincinnati formulated within the scope and contemplation of the act that pursuant to the negotiations between the local and national housing authorities, an emergency ordinance was passed by the council of the city of Cincinnati, on November 2, 1938, amended by a later ordinance, whereby the respondent city manager was authorized and directed to enter into a contract with the Cincinnati Housing Authority to aid and facilitate the execution of its program.
Such proposed contract was incorporated in the ordinance as amended. By Section 7 thereof the Cincinnati Housing Authority agreed that of the $13,500,000 tentatively allocated to low-cost housing by the United States Housing Authority, not more than $7,100,000 would be expended for vacant land projects (i. e., the construction of low-rent dwelling units on vacant lands), and the balance would be spent for negro slum clearance activities in the west end; provided that a sum of not more than $1,500,000 would be employed to add a specified number of dwelling units to the existing Laurel Homes project for occupation by negro families, and to be considered as a part of the negro slum clearance plan.
The petition further alleges that by virtue of such ordinance it was incumbent upon the respondent city manager to sign and execute the contract mentioned, but that he has failed and refused to do so because of an expressed doubt as to the validity of the action of the city council and of the constitutionality of the laws under which the council purported to act.
In conclusion, the petition contains a prayer that a writ of mandamus issue ordering the respondent city manager to sign the contract as directed by the ordinance.
An answer consisting of seven defenses wa filed. The demurrer thereto was sustained as to all of the defenses except the third, which states in substance:
First, that money in the sum of $7,100,000 to be loaned by the United States Housing Authority to the Cincinnati Housing Authority for the construction of two low-rent housing projects on vacant lands (one to be known as 'Winton Terrace,' comprising 750 dwelling units, and the other to be known as 'English Woods,' comprising the same number of dwelling units), will not, as planned, constitute (a) 'low-rent housing,' or (b) 'slum clearance' as contemplated by the United States Housing Act.
Second, that the proposed loan, being neither for 'low-rent housing' nor for 'slum clearance,' is unauthorized by the United States Housing Act.
The reply, after a general denial, alleges that besides the two low-rent housing projects on vacant land, objected to by the respondent, the Cincinnati Housing Authority intends to erect an addition to the Laurel Homes enterprise and to carry out a negro slum clearance and housing program in the west end of Cincinnati, and that in due season a resolution will be passed as to the low-rent character of each project, including the type or class of families which will be placed in occupation of the dwelling units to be constructed.
Reference is also made to the provisions of the loan contract embodied in the proposed contract with the city of Cincinnati, stipulating for the elimination of unsafe or insanitary dwelling units in the city at least equal to the number of new dwelling units provided for in the building program.
Issues being joined by the pleadings, a mass of testimony was taken by deposition for and against the plans of the Cincinnati Housing Authority, a good deal of which was irrelevant and superfluous.
The case is now in our hands for decision upon the pleadings and the evidence.
John D. Ellis, City Sol., Francis T. Bartlett, and Alfred Bettman, all of Cincinnati, for relator.
Walter K. Sibbald, of Cincinnati, for respondent.
In disposing of this matter on the merits, we are confined to the issues as raised by the third defense of the answer, and may not concern ourselves with the wisdom or policy displayed by the United States Congress in passing the Federal Housing Act.
By the terms of such act a national housing authority is...
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