Opinion
No. 38072.
December 3, 1951.
1. Municipalities — housing authority — publication of resolution.
It is not necessary to publish the resolution of the governing body of a city setting up the Housing Authority, the statute having expressly excluded such a requirement. Sec. 7319 Code 1942.
2. Municipalities — housing authority — all municipalities included.
The statute known as the Housing Authority Act includes every city in the state whether acting under the commission form, under special charter or under the code chapter; and since the Legislature may amend the special charters of municipalities by a general law applying to all municipalities it is not necessary that the special charter of a city shall itself contain a provision embracing the Housing Authority. Secs. 7295 et seq. Code 1942.
3. Municipalities — additional units under Housing Authority Act.
When the original resolution setting up the Housing Authority had adjudicated that unsanitary, unsafe dwelling accommodations exist and that there is a shortage of safe and sanitary dwelling accommodations available to families of low income at rentals they can afford, it is not necessary that like adjudications shall be made from time to time thereafter as new units are constructed. Sec. 7297 Code 1942.
4. Municipalities — Housing Authority — co-operation agreement.
Under the Housing Authority Act the city was expressly authorized to make the co-operation agreement mentioned therein, and being so authorized and empowered the contention that the agreement made in the instant case was invalid because the city thereby contracted away its police power and abandoned its right to fix taxation for a specified period is not tenable. Secs. 7303, 7316 et seq. Code 1942.
5. Municipalities — corporations — taxing power — constitutional law.
The Housing Authority Act does not violate the section of the Constitution which prohibits the surrender of the power to tax corporations on their property for the reason that the section mentioned has no reference to the property of public bodies, corporate and politic. Sec. 182 Const. 1890.
6. Municipalities — uniformity in taxation — constitutional.
The Housing Authority Act does not contravene the section of the Constitution which provides that taxation shall be equal and uniform for the reason that the act in its taxation feature is equal and uniform as regards the class of municipalities set out in the act. Sec. 112 Const. 1890.
7. Statutes — construction — constitutional law — Housing Authority Act.
Under the rules that a statute shall be construed so as to bring it within constitutional limitations if possible, and that its unconstitutionality should appear beyond a reasonable doubt before it will be declared invalid and that it will be construed in harmony with the Constitution if reasonably possible, the Housing Authority Act is found within and not contrary to the Constitution. Secs. 7295 et seq. Code 1942.
Headnotes as approved by Lee, J.
APPEAL from the chancery court of Pike County; R.W. CUTRER, Chancellor.
Morse Morse, and Roach Jones, for appellants.
I. Should the court dismiss the bill?
(b) Did the City of McComb have the authority to enter into the contract that it attempted to do in 1938?
This sort of a contract is not authorized by the laws of the State of Mississippi. The measuring rod is the taxes. This contract is similar to the one in the case of Edwards Hotel Co. v. City of Jackson, 103 So. 428. In that case the City had the right to make contract about its streets but not its taxing power. This is a surrender of its sovereignty; it violates the Constitution.
Were the acts of the City constitutional? We say they violated fundamental constitutional powers.
The State's sovereignty cannot be bargained away or surrendered by the Legislature. Tatum v. Wheeless, 180 Miss. 800, 178 So. 95.
Sec. 80 of the Constitution requires that provision shall be made by general law to prevent the abuse by cities, towns and other municipal corporations of their powers of assessments, taxation, etc. See Lum v. Vicksburg, 72 Miss. 950, 180 So. 476.
(c) Did the City of McComb, under a special charter, have the authority to make contract for the extension of housing units in 1949, and was its act constitutional?
When they surrendered the Commission Form of Government Act and the powers thereunder, the City was limited to the powers which they have under the special charter. See the case of Engle v. City of Natchez, 51 So.2d 564.
Under this agreement the project is exempt from taxes as long as (a) it is used as a low rent housing unit; (b) as long as any contract exists between the City and the Unit; (c) as long as there are any outstanding bonds, whichever period is longest. The testimony was that the bonds were issued for a period of 60 years. Sec. 192 Const. 1890 provides that municipalities may grant exemptions by general laws for a period not to exceed 10 years. The power to tax shall never be surrendered by the Legislature or to any subdivision. See Sec. 182 of the Constitution.
Was the act of the special charter constitutional? See Sec. 88 of the Constitution, and Monette v. State, 91 Miss. 662, 44 So. 989, 124 Am. St. Rep. 715.
The limitations imposed upon the municipalities are for the protection and benefit of the people. These limitations were caused by abuses that arose by the city fathers. All cities or towns were at one time called upon to help build railroads. It was thought that the millenium would come if they had a railroad in their town. Bonds were issued and sold to help build them.
We picked up this Housing Program from the "New Deal", and with proper nomenclature it could be called something else more descriptive. This program was taken from our English cousins. They had a social reform program and to sell it to their people they called it a program for the people "From the Cradle to the Grave". Atlee and his crowd were sincere, but misguided men. They sold this nostrum to the English people, they socialized medicine, industries, coal, steel, the banks, they lost the revenue from these businesses and as a consequence their program in a period of about six years has had a pretty swift journey from the cradle to the grave.
Cassidy, McLean Alford, for appellees.
Answer to appellants' contentions.
I. Should the court dismiss the bill?
107 Miss. 69630 So.2d 315
(b) Appellants state that the City of McComb did not have authority to enter into the contract which it attempted to do in 1938. Secs. 6, 80, 88, 112, 182, 192; Secs. 1(b), 3, 19, 25, 28, Chap. 338 Laws 1938; Adams v. Kuykendall, 83 Miss. 571, 35 So. 830; Brennan v. Miss. Home Ins. Co., 70 Miss. 531, 13 So. 228; Chassanoil v. City of Greenwood, 166 Miss. 848, 148 So. 781; 291 U.S. 584, 78 L.Ed. 1004; 292 U.S. 601, 78 L.Ed. 1464; Darnell v. Johnston, 108 Miss. 570, 68 So. 780; Easterling Lbr. Co. v. Pierce, 106 Miss. 672, 64 So. 461; 235 U.S. 380, 59 L.Ed. 278; Edwards Hotel Co. v. City of Jackson, 103 So. 428; City of Jackson v. Miss. Fire Ins. Co., 132 Miss. 415, 95 So. 845; Johnston v. Reeves Co., 112 Miss. 227, 72 So. 925; Lum v. Vicksburg, 72 Miss. 950, 18 So. 476; Marshall v. Grimes, 41 Miss. 27; Miller v. Sherrard, 157 Miss. 124, 126 So. 903, 906; Miss. Mills v. Cook, 56 Miss. 40; State, ex rel. Atty. Gen. v. School Board of Quitman County, 181 Miss. 818, 181 So. 313; Natchez S.R. Co. v. Crawford, 99 Miss. 697, 55 So. 596; People's Warehouse Co. v. Yazoo City, 97 Miss. 500, 52 So. 481; Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977; Sanford v. Dixie Construction Co., 157 Miss. 626, 128 So. 887; Staple Cotton Co-op. Assn. v. Hemphill, 142 Miss. 298, 107 So. 24; Thompson v. Box, 147 Miss. 1, 112 So. 597; Tucker Printing Co. v. Board of Supervisors of Attala County, 171 Miss. 608, 157 So. 336; Wheeless v. Tatum, 180 Miss. 800, 178 So. 95.
(c) That the City of McComb, now operating under its special charter, did not have the authority under its charter to build the additional housing units which were contemplated by the actions taken by the Housing Authority Board and the City Board in 1950. Sec. 7295(b), (c) Code 1942; Municipal Corporations, McQuillin, 3rd Ed., Vol. 15, Sec. 39.21.
Appellees' contentions.
I. Application and use of Housing Act in Mississippi. U.S. Housing Act of 1937, 42 U.S.C.A., Secs. 1401-1430; Sec. 7322 Code 1942; Sec. 3, Chap. 338 Laws 1938; City of Cleveland v. U.S., 323 U.S. 329, 333, 65 S.Ct. 280, 89 L.Ed. 274.
II. Decisions in other states on identical legislation. U.S. Housing Act, 1937, 42 U.S.C.A., Secs. 1401-1430; In re Opinion of the Justices, 235 Ala. 485, 179 So. 535; Dennard v. Housing Authority of Ft. Smith, 203 Ark. 1050, 159 S.W.2d 764; Hogue v. Housing Authority of N. Little Rock, 201 Ark. 263, 144 S.W.2d 49; Kerr v. East Central Ark. Reg. Housing Authority, (Ark.), 187 S.W.2d 189; Humphrey v. City of Phoenix, (Ariz.), 102 P.2d 82; Housing Authority of County of Los Angeles v. Dockweiler, 14 Cal.2d 437, 94 P.2d 794; Housing Authority of City of Eureka v. Superior Court in and for Humboldt County, 219 P.2d 457; Marvin v. Housing Authority of Jacksonville, 133 Fla. 590, 183 So. 145; Hogg v. Housing Authority, City of Rome, (Ga.), 5 S.E.2d 431, 6 S.E.2d 48; Williamson v. Housing Authority, Augusta, 186 Ga. 673, 199 S.E. 43; Krause v. Peoria Housing Authority, 370 Ill. 356, 19 N.E.2d 193; Edwards v. Housing Authority of City of Muncie, (Ind.), 19 N.E.2d 741; Spahn v. Stewart, 268 Ky. 97, 103 S.W.2d 651; State ex rel. v. Housing Authority, New Orleans, 190 La. 710, 182 So. 725; Matthaei v. Housing Authority of Baltimore City, Maryland, 9 A.2d 835; Allydonn Realty Corp. v. Holyoke Housing Authority, Massachusetts, 23 N.E.2d 665; Stockus v. Boston Housing Authority, (Mass.), 24 N.E.2d 333; In re Brewster v. Housing Site in City of Detroit, 291 Mich. 313, 289 N.W. 493; Laret Investment Co. v. Dickman, (Mo.), 134 S.W.2d 65; Rutherford v. City of Great Falls, 107 Mont. 512, 86 P.2d 656; State, ex rel. Helena Housing Authority v. City of Helena, 90 P.2d 514; Lennox v. Housing Authority, City of Omaha, 137 Neb. 582, 290 N.W. 451, 291 N.W. 100; McLaughlin v. Housing Authority of Las Vegas, (Nev.) 227 P.2d 206; Kantor v. City of Perth Amboy, 123 N.J.L. 504, 10 A.2d 184; Romano v. Housing Authority, City of Newark, 123 N.J.L. 428, 10 A.2d 181; New York Housing Authority v. Muller, 270 N.Y. 333, 1 N.E.2d 153; Wells v. Housing Authority of Wilmington, 213 N.C. 744, 197 S.E. 693; State ex rel. Ellis v. Sherrill, 136 Ohio St. 238, 25 N.E.2d 844; Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 200 A. 834; McNulty v. Owens, 188 S.C. 377, 199 S.E. 425; Knoxville Housing Authority v. Knoxville, (Tenn.) 123 S.W.2d 1085; Housing Authority of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79; Mumpower v. Housing Authority, 176 Va. 426, 11 S.E.2d 732; Chapman v. Huntington, West Virginia Housing Authority, 3 S.E.2d 502.
III. Appellants did not pursue remedies at law. Secs. 1195, 3778 Code 1942.
J.N. Quinn and Herman S. May, by their bill, sought to enjoin the City of McComb, Mississippi, from setting up additional housing units. From the dismissal of their bill, following a hearing, they appeal.
The Legislature, by Chapter 338, Laws of 1938, Section 7295 et seq., Code of 1942, enacted what is known as the "Housing Authorities Act." It was therein declared that providing safe and sanitary dwelling accommodations for persons of low income is a public use and purpose, for which public money may be spent and private property acquired, and is a governmental function of State concern. The Act created in each city a public body, corporate and politic, to be known as the Housing Authority.
On May 3, 1938, the Council of McComb City, then acting under the commission form of government, adopted a resolution, in conformity with the Housing Act, supra, declaring the need for a Housing Authority in the city, and set up the same. Thereafter, land of the value of $47,130 was utilized, and between 1940 and 1950, 393 unit houses were built, and the tax on the land at the then levy of 38 mills would have amounted to $1,790.94 annually. Actually, from 1942 to 1947, inclusive, in addition to a deed to four lots, the City received from the Housing Authority $10,545.69 in lieu of taxes.
In 1946, the City abandoned the commission form of government and reverted to its special charter.
During the latter part of 1949 and the early part of 1950, negotiations were undertaken to provide additional units to the existing ones then being operated by the McComb Housing Authority. At this juncture a petition, presumably initiated under Section 3769 et seq., Code of 1942, and containing the requisite number of qualified electors, was filed with the city board, praying for an election to determine whether or not the proposed extension should be carried out. However, the board did not call the election; and no petition was filed with the Governor, as provided by Section 3778, Code of 1942.
In their bill of complaint, the appellants alleged that they were signers of the petition for the election. However, they did not prosecute an appeal to the circuit court under Section 1195, Code of 1942.
In his oral opinion, the chancellor observed that resort was had neither to Section 3778, supra, nor to Section 1195, supra. The decree, however, adjudged that the appellants failed to prove any grounds for equitable relief.
Appellants assign and argue several propositions to which response is deemed necessary.
(1) The first contention is that the original resolution of May 3, 1938, was not published, and, on that account, it was invalid.
(Hn 1) It is true that Section 3806, Code of 1942, provides that resolutions or ordinances passed by the council, except in certain cases not necessary to mention here, shall be published. But by Section 7319, Code of 1942, when there is exercise of power to set up the Housing Authority, it is provided: "Such a resolution or resolutions shall take effect immediately and need not be laid over or published or posted." (Hn 2) By the terms of the Act, each city in the State is included, whether acting under the commission form, under special charter, or under the code chapter. "'City' shall mean any city in this state. * * *" Paragraph (b), Section 7295, Code of 1942. "'Governing body' shall mean, in the case of a city, the board of aldermen, commissioners, or council; * * *." Paragraph (d), Section 7295, supra, Besides "In so far as the provisions of this Act are inconsistent with the provisions of any other law, the provisions of this Act shall be controlling." Section 7322, Code of 1942. Consequently this assignment is untenable.
(2) But appellants contend that, on the return to its special charter, the City was without power to set up a Housing Authority, in the absence of a provision to that effect in its charter.
What has been said in response to Point 1, supra, is also applicable to this proposition, and likewise disposes of it. The Act does not exclude municipalities operating under special charter. Section 88 of the Constitution is no obstacle, because in McClure v. City of Natchez, 151 Miss. 718, 118 So. 616, and the authorities there cited, it was held that the Legislature may amend the charters of municipalities, operating under special charters, by a general law applying to all municipalities.
(3) Appellants also contend that, in the steps undertaking to create additional units, there was no finding that unsanitary and unsafe dwelling accommodations existed, or that there was a shortage of dwelling accommodations, in the city, and, for that reason, the acts of the City and the Housing Authority were unauthorized and void.
(Hn 3) In the original resolution, it was adjudicated (a) that unsanitary, unsafe dwelling accommodations exist and (b) that there is a shortage of safe and sanitary dwelling accommodations, available to families of low income at rentals they can afford. Under Section 7297, supra, the governing body was authorized to adopt a resolution declaring the need for a Housing Authority, if it should find either of the above conditions to exist. When the need has been declared, and the authority has been set up, there is no requirement in the Act that like adjudications shall be made from time to time thereafter as new units are constructed. As a matter of fact, however, the resolution with reference to additional units, while not following the exact language of the statute, did make a finding that "there exists in the City of McComb City, Mississippi, a need for such low rent public housing at rents within the means of low income families * * *." Besides, Section 7300, Code of 1942, is also broad in its scope and effect. This contention must, therefore, be rejected.
(Hn 4) (4) Appellants further contend that the cooperation agreement, a part of the proceedings, was null and void because the City thereby contracted away its police power, and abandoned its right to fix taxes for a period of sixty years.
The terms of the Housing Act provide: "In each city * * * of the State there is hereby created a public body corporate and politic to be known as the 'housing authority' of the city * * *," and the method is provided for putting it into effect. Section 7297, supra. It has been shown, supra, that "City" means any city in the State. By the terms of Section 7313, Code of 1942, the property of a Housing Authority is declared to be public property, used for governmental purposes, and is exempt from all taxes and special assessments of the City; and in lieu of such taxes "* * * an authority may agree to make payments to the city * * * for improvements, services and facilities furnished by such city, * * * for the benefit of a housing project, but in no event shall such payments exceed the amount last levied as the annual tax of such political subdivision upon the property included in said project prior to the time of its acquisition by the authority."
It is well-settled that the governing body of a municipality has such powers in regard to contracts as are conferred upon the municipality by its charter or the general laws. Mayor and Board of Aldermen of City of Natchez v. Engle, Miss., 51 So.2d 564, and authorities there cited.
It was pointed out in City of Indianola v. Sunflower County, 209 Miss. 116, 46 So.2d 81, that political subdivisions are not private corporations. In that case, it was held that, since a city derives its existence and powers by charter from the State, "It can do and perform all acts for which it has authority thereunder, except such as may be in conflict with the Constitution."
In Edwards House Company v. City of Jackson, 138 Miss. 644, 103 So. 428, it was said that the authority of a municipality is limited by the authority granted to it by the Legislature; and the contract in that case was voided because the City had no authority to enter into it.
The cooperation agreement involved here is in strict accord with Section 7313, supra. The city authorities had the power to enter into this agreement because they are expressly empowered so to do by the Housing Act. And, in Adams v. Kuykendall, 83 Miss. 571, 35 So. 830, it was held that the taxing power previously delegated to a municipality by a special charter can be controlled by the Legislature by subsequent act.
(5) Appellants contend that the Act in question is violative of several sections of the Constitution.
(Hn 5) While Section 182 of the Constitution prohibits the surrender or abridgement of the power to tax corporations and their property, it has no reference to the property of public bodies, corporate and politic. (Hn 6) Neither does the Act contravene Section 112 of the Constitution, because the Housing Act, with reference to its taxation feature, is uniform and equal as regards the class of municipalities set out in the Act. And obviously, Section 192 of the Constitution has no application whatever.
(Hn 7) The many pronouncements by this Court require that a statute be construed so as to render it valid, if possible; and that its unconstitutionality should appear beyond a reasonable doubt, before it will be held invalid; and that it will be construed in harmony with the Constitution, if reasonably possible. Some of these cases are: Natchez S.R. Company v. Crawford, 99 Miss. 697, 55 So. 596; Richards v. City Lumber Company, 101 Miss. 678, 57 So. 977; Easterling Lumber Company v. Pierce, 106 Miss. 672, 64 So. 461, Id., 235 U.S. 380, 35 S.Ct. 133, 59 L.Ed. 279; Darnell v. Johnston, 109 Miss. 570, 68 So. 780; Staple Cotton Co-op. Ass'n v. Hemphill, 142 Miss. 298, 107 So. 24; Thompson v. Box, 147 Miss. 1, 112 So. 597; Johnston v. Reeves Company, 112 Miss. 227, 72 So. 925; Marshall v. Grimes, 41 Miss. 27; Miller v. Sherrard, 157 Miss. 124, 126 So. 903, 906; Sandford v. Dixie Construction Company, 157 Miss. 626, 128 So. 887; State ex rel. Attorney General v. School Board of Quitman County, 181 Miss. 818, 181 So. 313; Chassanoil v. City of Greenwood, 166 Miss. 848, 148 So. 781; 291 U.S. 584, 54 S.Ct. 541, 78 L.Ed. 1004; 292 U.S. 601, 54 S.Ct. 627, 78 L.Ed. 1464; Tucker Printing Company v. Board of Supervisors of Attala County, 171 Miss. 608, 158 So. 336.
The courts of many of the states of the union have upheld the constitutionality and validity of the Housing Acts, after which Chapter 338, supra, is fashioned, and have declared the property of such Housing Authorities exempt from ad valorem taxes.
As to the constitutionality and validity of state and municipal housing laws, see extended note in 130 A.L.R. 1073.
As to exemption of property of housing authorities from taxation, see City of Cleveland v. U.S., 323 U.S. 329, 65 S.Ct. 280, 89 L.Ed. 274. See also annotations in 133 A.L.R. 365, and 152 A.L.R. 239.
It appears that there was ample statutory authority for the City of McComb to do what it did in this housing project, and that the requirements of the law have been followed with precision.
Affirmed.