CASES Flashcards
Munn v. Illinois 1876
Statutory provisions requiring a license were held constitutional. The regulation was a thing of domestic concern. When someone devotes his property to a use of public interest he in effect grants the public an interest in his use. Not unconstitutional, must receive grain from all persons, and store the same on equal terms and conditions.
Attorney General v. Williams 1903
Massachusetts restricted the height of buildings in certain areas to 90 feet. The State moved to enjoin the maintenance of the building above 90 feet. The property owner stated it was a taken. The court treated the action as a condemnation and as a taken for public use. There was adequate provision for payment of damages.
Cochran v. Preston
Legislation restricting building height in certain Baltimore streets to 70 feet. Most obtain a permit from building official and appeal tax court. Applicant applied to raise his building to 78 feet. Denied based on the height limitation.The court held that if the objective of the legislation was to promote the public welfare and there is a substantial relationship between the two it would validate the amendment. They deemed this a valid use of police powers for the purpose of preventing fires through building height restrictions.
Welch v. Swasey 1909
Boston- develop is denied permit for a building based on height limitation. DEveloper proposed 124’6”. The building was proposed in a district that only allowed a max height of 100’. The Court concluded that the height limitation differences between residential and commercial was not unreasonable and that the developer was not limited to the use of his land. Accordingly there was no taken of his property.
Eubank v. City of Richmond
An ordinance was passed which stated that upon request of two-thirds of the abutting property owners, a committee on streets would establish a building line on the side of a square on which the property abuts not less than 5 feet not more that 30 feet. Plaintiff was provided an approval with a setback of 14’ matching those houses in the area. The Court ruled that the ordinance violated the US Constitution in that they deprived the plaintiff of his property without due process and denied him equal protection under the law. The ordinance allowed one set of property owners to control the property rights of others.
Hadacheck v. Sebastian 1915
Plaintiff was convicted of a misdeamor of operating a brickyard within described city limits. Plaintiff owned a parcel of land that was used to remove very valuable clay. Large excavations of clay were removed making the land invaluable for any other purpose. He bought it outside of the city limits. The city enacted the ordinance after he purchased the property. The Court ruled that the ordinance was a valid exercise of police power and that it did not enable the plaintiff from removing the clay only manufacturing the bricks. The created district was mostly residential and therefore not an arbitrary invasion of a private right.
Thomas Cusak v. City of Chicago 1917
Chicago enacted an ordinance requiring the consent of the owners of a majority of the frontage of the property on both sides of the road before any billboard or sign over 12 square feet was erected. Plaintiff claimed this was not a valid exercise by the City of the power to regulate or control the construction and maintenance of billboards but a delegation of powers to the owners. The court upheld the ordinance saying that the prohibition on billboards over a certain size does not deny due process or equal protection.
Upon the question of the reasonableness of the ordinance, much evidence was introduced that fires had been started in the accumulation of combustible material which gathered about such billboards; that offensive and unsanitary accumulations were habitually found about them, and that they afforded a convenient concealment and shield for immoral practices, and for loiterers and criminals. Furthermore, residential sections of the City did not have as full police or fire protection as other sections had, and the streets of such sections were more frequented by unprotected women and children and were not so well lighted as other sections of the City, and most of the crimes against women and children are offenses against their persons.
Consequently, the enactment of the ordinance was within the City’s police power to protect the public health, safety and welfare to allow the affected residents to voice concerns and provide consent.
Town of Windsor v. Whitney et al. 111 A. 354 (Conn. 1920) Connecticut Supreme Court
The Town of Windsor sued the defendants to restrain them from opening, keeping open or using certain streets, establishing building lines, or conveying building lots on certain streets in Windsor. The defendants were engaged in developing for residential purposes a tract of land on Barber Street in Windsor, and they had opened a street parallel
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to Barber Street and two other streets opening into Barber Street for public use. In addition, the defendants had established building and curb lines on these streets and had sold for building purposes a number of lots on these streets. All of the defendants’ acts were in violation of the provisions of the Town’s ordinances which provided for the creation of a town plan commission whose duty it was to make surveys and maps of Windsor, section by section, showing locations for any public building, highway, street, or parkway layouts, including street, building and veranda lines.
The defendants claimed that the ordinance upon which the complaint was based was unconstitutional in that it was in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution, because it constituted a taking of property without due process of law.
HOLDING
The court found that streets properly located and of suitable width help transportation, add to the safety of travel, furnish better protection against fire, and better light and air to those who live upon the street. They afford better opportunities for laying, maintaining, and inspecting water, sewer, gas and heating pipes and electric and telephone conduits in the streets. Streets of reasonable width add to the value of the land along the street and enhance the general value of land and buildings in the neighborhood, and greatly increase the beauty of the neighborhood.
Where the free exercise of one’s rights of property is detrimental to the public interest, the state has the right under the police power to reasonably regulate such exercise of property rights. Regulations of this character, if reasonable, do not constitute a taking of property. The Due Process Clause does not prevent the state from making all needful regulations for the public welfare, and does not require compensation to be made in cases where these regulations are reasonable, although they may deprive an owner of the use of his property.
The court held that a legislative enactment such as the Town ordinance in this case, requiring private highways laid out in land development schemes to be of a reasonable width, and reasonable building lines established upon streets before the erection of buildings fronting upon those streets shall be permitted, is well within the police power and does not offend against the Fourteenth Amendment.
Romar Realty v. Board of Commissioners 96 N.J.L. 117 (N.J. 1921) New Jersey Supreme Court
Romar Realty, owner of a tract of land fronting on Main Street, planned to build one-story stores on the land within 80 feet of the building or fence line. Application for a building permit was refused, and they were informed that the erection of the proposed one-story structures at the proposed place of location on the land was in violation of an ordinance of the borough adopted as follows: “Sec. 2, Be it ordained that no building of any kind less than two stories high shall be erected on the aforesaid street within eighty feet of said building or fence line without the consent of said board of commissioners.” It is the second section of the above ordinance under which the requested building permit was refused.
HOLDING
The legal basis for all land use regulation is the police power of a jurisdiction to protect the public health, safety and welfare of its residents. A land use regulation lies within the police power if it is reasonably related to the public welfare.
The court, however, concluded as follows: 1) a purpose to beautify the appearance of a street by building restrictions is an aesthetic consideration which was a matter of luxury and indulgence rather than of necessity, and did not justify the exercise of the police power; and 2) the enactment of an ordinance by a borough prohibiting the erection of one story buildings within 80 feet of the building or fence line along a certain street was not a proper exercise of the police power, and was invalid.
Inspector of Building of Lowell v. Stoklosa 250 Mass. 52 (Mass. 1924) Massachusetts Supreme Court
The City of Lowell sought to restrain defendant Stoklosa from erecting a building for business purposes in violation of an ordinance enacted pursuant to provisions of the City’s General Laws.
This was a suit in equity by the City building inspector to restrain the defendant from erecting a certain building for business purposes in that City in violation of an ordinance. The ordinance authorized the City by ordinance to divide its territory into districts or zones, to restrict the use of buildings for trade and industry, for tenement houses and for dwelling houses to be in designated areas and to require such buildings to conform to establish regulations as to construction and use. Defendant attacked the constitutionality of the statute.
HOLDING
The City ordinance, creating as a business district any building district which had not less than one-half ground floor frontage and frontage on the other side of street and was, at the time the ordinance went into effect, devoted to business or industry: 1) did not provide an unreasonable division of business and residence districts; and 2) was a lawful exercise of the police power.
Second, where building districts were established by some rational general rule, there was no invalidity in a provision in the ordinance which enabled the City Council to relax rigidity of bounds of the districts when three-fourths of landowners in the immediate neighborhood so request. The consent of certain landowners was merely a condition to the City Council’s public hearing on a matter affecting the owners of homes in those residential districts and it was not a delegation of legislative power. Accordingly, the ordinance was upheld.
Zahn v. Public Works of Los Angeles 195 Cal. 497 (Cal. 1925) California Supreme Court
The petition attacked two ordinances of the City of Los Angeles known as the general and comprehensive zoning ordinance of said City, which provided for the establishment of a setback line. The general comprehensive zoning ordinance was adopted by the City Council in October 1921. Thereafter, the petitioners filed an application with the City Council requesting that the Council declare an exception to the restrictions of said ordinance with respect to the property of the petitioners, and adopt an ordinance permitting the construction and erection of a business building by the petitioners upon their property.
Succinctly stated, the following objections were urged by the petitioners as showing an abuse of discretion by the Council: 1) other adjacent territory was zoned for business which was not better suited for business than Wilshire Boulevard; 2) the value of the petitioners’ property would be depreciated if it were retained in zone B; and 3) property devoted to business uses at the time of the adoption of the ordinance were permitted to continue.
HOLDING
An ordinance enacted pursuant to a general comprehensive zoning plan, and based on consideration of public health, safety, morals, or general welfare, if applied fairly and impartially, is a valid exercise of the police power. Every intendment is to be made in favor of zoning ordinances and courts will not, except in clear cases, interfere with the exercise of the power manifested.
The fact that including the petitioners’ property depreciated in value in a zone restricted to residential purposes rather than in a zone restricted to business purposes was not of controlling significance, as every exercise of police power is apt to adversely affect the property interest of somebody.
The ordinance in the instant case was not an arbitrary attempt of the City authorities to discriminate between the use of property in one territory and the use of property permitted in another of similar description. On the contrary, the districts created by the ordinance and its various amendments appeared to be established by a rational general rule.
As to the objection that the ordinance was not retrospective, but permitted the continuance of existing uses, it will suffice to say that for the purpose of zoning it is not necessary that existing uses be removed. For future development, all past development not in harmony therewith, would be impractical.
Village of Euclid v. Ambler Realty 272 U.S. 365 (1926) United States Supreme Court
Appellant Amber Realty was the owner of a tract of land containing 68 acres, situated in the westerly end of the Village of Euclid. On November 13, 1922, an ordinance was adopted by the Village Council which established a comprehensive zoning plan for regulating and restricting the location of trades, industries, apartment houses, two-family houses, the lot area to be built upon, the size and height.
The ordinance was attacked on the grounds that it unconstitutionally deprived appellant of liberty and property without due process of law, and it denied equal protection of law. The lawsuit specifically averred that the ordinance attempted to restrict and control the lawful uses of appellant’s land, so as to confiscate and destroy a great part of its value; that prospective buyers were deterred from buying the land because of the ordinance; and that the ordinance constituted a cloud upon the land which diverted development to less favorable locations.
A motion was made in court that the suit was premature because the appellant had made no effort to obtain a building permit or apply to the zoning board of appeals for relief, as it might have done under the terms of the ordinance.
HOLDING
A general zoning ordinance creating a residential district and excluding therefrom apartment houses, business houses, retail stores, shops and other like establishments, was held to be a valid exercise of police power and not violative of the Due Process or Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution.
Where injunctive relief against a zoning ordinance was not sought on the ground of a particular injury in the process of actual execution, but on the broad ground that the mere existence and threatened enforcement of the ordinance materially and adversely affected appellant, a court will not closely scrutinize provisions of the ordinance to ascertain whether there may be minor provisions which, if attacked separately, would be held unconstitutional.
The relief sought here was of the same character. Namely, the appellant sought an injunction against the enforcement of any of the restrictions, limitation, or conditions of the ordinance. The gravamen of the complaint was that a portion of the land of the appellant could not be sold for certain enumerated uses because of the general and broad restraints of the ordinance.
Under those circumstances, the court determined that the ordinance in its general scope and dominant features, so far as its provisions where involved, was a valid exercise of authority. Judicial scrutiny of individual provisions of the ordinance would be dealt with as cases arose on an individual basis.
Washington Ex Rel. Seattle Trust Co. v. Roberge 278 U.S. 116 (1928) United States Supreme Court
Since 1914, the trustee owned and maintained a philanthropic home for the aged and poor located about six miles from the business center of Seattle. The home was built for and formerly used as a private residence. It was large enough to accommodate about 14 guests and usually had about that number. The trustee proposed to remove the old building and to replace it with an attractive 1- ½ story fire proof house large enough to be a home for 30 persons at a cost of $100,000.
The City zoning ordinance provided that a philanthropic home for children or for old people shall be permitted in the first residence district when the written consent has been obtained from the owners of two-thirds of the property within four hundred (400) feet of the proposed building.
The section purported to give the owners of less than one-half the land within four hundred (400) feet of the proposed building, authority to keep plaintiff from using its land for the proposed home. The City was bound by the decision or inaction of such owners. There was no provision for review under the ordinance; the failure to give consent was final.
HOLDING
The City ordinance, permitting the erection of philanthropic homes for children or old people in the first residence district only on procuring written consent of owners of two-thirds of property within four hundred (400) feet of the proposed building, violated the due process clause as an unwarranted delegation of power to other property owners to arbitrarily prevent use of land for such purpose, without any standard or rule prescribed by legislative action.
The court determined that the delegation of power so attempted was repugnant to the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
Jones v. City of Los Angeles 211 Cal. 304 (Cal. 1930) California Supreme Court
This was an action to enjoin the enforcement of a zoning ordinance of the City of Los Angeles. The ordinance was enacted independently of the general zoning plan for the City, and its restrictive provisions were directed toward one type of business. It provided that outside of certain designated districts, it was unlawful for any person to erect, establish, operate, maintain or conduct any hospital, asylum, sanitarium, home, retreat or “other place for the care or treatment of insane persons, persons of unsound mind, or persons affected by or suffering from mental or nervous diseases” (collectively “mental health facility”). Penalties of fines and imprisonment were specified for its violation.
In March, 1927, the City of Los Angeles annexed the territory known as the Mar Vista District. At that time, there were already in operation in this district four mental health facilities. The above-mentioned zoning ordinance excluded the Mar Vista District from the area in which the establishment and maintenance of mental facilities was permitted. When the ordinance went into effect, the plaintiffs, as the owners of the institutions, sought to enjoin its enforcement.
The lower court found that the restricted districts were mainly residential in character and this was sufficient to justify the exclusion of business such as that carried on by plaintiffs.
HOLDING
The ordinance prohibiting the establishment of mental health facilities within certain districts, viewed as part of general zoning plan, was held valid. The residential character of restricted districts was held sufficient to justify exclusion therefrom of mental health facilities. Viewing the ordinance as part of a general zoning plan, and disregarding for the moment the question of its applicability to the plaintiffs, there can be no doubt of its validity.
Where, however, a retroactive zoning ordinance causes substantial injury and a prohibited business is not a nuisance, the ordinance is to that extent an unreasonable exercise of the police power. The ordinance in question, in so far as it prohibits the establishment of certain types of facilities is valid. Notwithstanding, the police power does not justify the taking away of the right to engage in such businesses in certain territories, by the destruction of existing businesses.
Similarly drafted, ordinances have usually proceeded with due regard for valuable, vested property interests, and have permitted existing, nonconforming uses to remain. The destruction of an existing nonconforming use would be a dangerous innovation of doubtful constitutionality, and such a retroactive provision might jeopardize the entire ordinance.
Therefore, the ordinance in question was valid in so far as it prohibited the further establishment of businesses of this type in the restricted districts; and was invalid in its application to the plaintiffs in that it took away plaintiffs’ right to conduct existing businesses.
Dowsey v. Kensington 257 N.Y. 221 (N.Y. 1931)
N.Y. Court of Appeals
The Village of Kensington is situated in a territory known as the Great Neck section of Long Island. The plaintiff’s land included the whole Middle Neck Road frontage of the Village south of the entrance to the Village back to Parkland, one of the Village streets. Its area was about 76,000 square feet.
The Village passed a zoning ordinance restricting land uses in that area of the Village to detached single family dwellings. The plaintiff claimed that the attempted restriction of the use of her land was unreasonable and beyond the police power of the Village authorities. She brought an action to obtain a declaratory judgment that the zoning ordinance was ineffective and void. The plaintiff maintained that the inclusion of her property in such a district was so unreasonable that it could not be supported under even the broadest interpretation of the police power.
The Village relegated business and industry to a very small section which the evidence showed was not adapted to business, and excluded from the main portion of the Village all residences excepting single-family detached houses. The Village argued that apartment buildings or stores on the Middle Neck Road frontage or in any other part of the Village might cause traffic congestion, fire hazards, and other dangers to the health and safety of the community. In truth, the inference from the evidence was clear that the Village’s arguments were without substance, and that the zoning ordinance was framed for the purpose of excluding such buildings from the Village in order to preserve it as a secluded, quiet community of single-family detached homes.
HOLDING
The court recognized that the line which separates the legitimate from the illegitimate assumption of the police power is not capable of precise delimitation. Certainly an ordinance is unreasonable when it restricts property development to a use for which the property is not adopted as in the area relegated to businesses and thereby destroys the greater part of its value in order that the beauty of the Village as a whole may be enhanced. In this case, the restriction unreasonably imposed a special hardship on the plaintiff and constituted an invasion of the plaintiff’s property rights, as it was not a valid exercise of the police power.
Welton v. Hamilton 344 Ill. 82 (Ill. 1931) Illinois Supreme Court
An owner of property in Chicago applied to the City commissioner of buildings for a permit to erect a 20-story apartment hotel building. The proposed building would be located in a commercial district, would exceed the alley line height limit by 141 feet, and would violate district regulations of the zoning ordinance.
The application was not approved because the proposed building improvements did not conform with the requirements of the zoning ordinance. The owner filed an appeal with the City board of appeals, which found that there was unnecessary hardship in carrying out the strict letter of the zoning ordinance, and the spirit of the zoning ordinance may be observed, public safety and welfare secured, and substantial justice done, by permitting the erection of the proposed building. The permit was granted.
The plaintiffs opposed the City’s granting of the permit and sued, claiming that the authority upon the City Council to establish a board of appeals in conferring the Zoning Act was in excess of the constitutional limitation on the City’s legislative power. Plaintiffs further claimed that that power was exceeded because it conferred upon the board of appeals the unfettered authority to determine and vary the application of the zoning regulations without restriction.
HOLDING
The court found invalid that part of the ordinance which purported to confer upon the board of appeals the authority to vary or modify the application of the provisions of the ordinance where there are practical difficulties or unnecessary hardship in carrying out the letter of the ordinance. This clearly was an unconstitutional delegation of legislative authority to the board of appeals by the City. The statute gave no direction, furnished no rule, and provided no criteria for determining what constituted practical difficulties or unnecessary hardships to justify setting aside the provisions of the ordinance, or to vary or modify their application. The ordinance left those questions to be determined by the unguided and unlimited discretion of the board of appeals.
The ordinance had been in existence for years before owner bought the lot in question with full knowledge that it could not lawfully construct the building it was proposing to erect. The commissioner of buildings refused a permit for the construction of the building, and could not have lawfully done otherwise. The only difficulty or hardship is that the building would be smaller. Accordingly, the owner would be unable to make as much money as he would have otherwise made. It cannot be supposed that this was the kind of hardship or difficulty which the Legislature had in mind when it exercised its police power for the benefit of the safety, health and general welfare of the inhabitants of the City of Chicago.
The mere fact that the owner can make more money is neither a difficulty nor a hardship authorizing the board of appeals to permit such owner to disregard the ordinance so far as it interferes with his plans for a more profitable use, and the City was without power to authorize an administrative board to grant such permission. This part of the ordinance was arbitrary and unconstitutional, because it was delegated to an administrative body of the power of legislation, which can only be exercised by a legislative body.
US v. Certain Lands, City of Louisville Kentucky 9 F.Supp. 137 (W.D. Ky. 1935) United States Federal District Court
In this action and in two companion actions, the United States of America sought to condemn certain property in the City of Louisville for the purpose of securing fee- simple title thereto in order to erect thereon a Low-Cost Housing and Slum Clearance Project, under the provisions of the National Industrial Recovery Act (48 Stat. 195). One of the landowners filed a petition asking the court to appoint commissioners to assess the damages of the respective owners of the property described in the petition. The landowners alleged that the United States of America was without power to exercise the right of eminent domain for the purpose of acquiring property for the Low-Cost Housing and Slum Clearance Projects.
HOLDING
The court recognized that the national government may condemn private property only for a “public use,” which means a use by the government for legitimate governmental purposes, or a use open to all the public, even though available to only a part of the public. This power exists whether the property is held by the government or by some private agency, and this public right to use must result from the law itself, rather than the will of the governmental agency upon which the power is conferred.
Furthermore, the universal rule in this country is that the states can condemn private property only for a public use, and the language of the Fifth Amendment shows that the framers of the Federal Constitution intended that the national government should be similarly restricted. The prohibition in that amendment against the taking of private property for public use, except upon the payment of just compensation, clearly implies that it cannot be taken for private use at all.
Lastly, as the action by the United States of America was an attempted exercise of the police power, not of the power of eminent domain for a public use, and the national government was not clothed with any such police power within the states, the attempted condemnation was unlawful.
NYC Housing Authority v. Muller 270 N.Y. 333 (N.Y. 1936)
New York Court of Appeals
The New York City Housing Authority sought to condemn certain premises in the City of New York owned by the defendant Muller. The public use for which the premises were required was stated in the petition to be the clearance, replanning and reconstruction of part of an area of the City wherein there existed, unsanitary and substandard housing conditions.
As part of its project, the City purchased properties contiguous on both sides to the
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premises in question. Acquisition of the defendant’s property was deemed necessary to carry out the project. The premises consisted of two old tenement houses. Muller opposed the condemnation upon the ground that the City Municipal Housing Authorities Law violated the State Constitution and the Federal Constitution because it granted to the City the power of eminent domain for a use which was not a public use.
When this case was decided, governmental housing projects constituted a comparatively new means of removing unsanitary and substandard housing, or as it is now referred to as, “redevelopment.”
HOLDING
Property cannot, without the owner’s consent, be devoted to the private use of another, even when there is an incidental or colorable benefit to public. In this case, however, in a matter of far-reaching public concern, the City sought to take the defendant’s property and to administer it as part of a project conceived and to be carried out in its own interest and for its own protection. That constituted a public benefit purpose, and therefore a public use.
Austin v. Older 283 Mich. 667 (Mich. 1938) Michigan Supreme Court
On the eve of the passage of a zoning ordinance by the City of Ypsilanti, but the day before it became effective, the plaintiff erected a building and appurtenances for a gas station on his property. The property was in a residential district under the City ordinance, thus rendering his use a nonconforming use. The ordinance permitted the continuation of such uses as existed at the time of the effective date of the ordinance. Over ten years after the construction of the building and adoption of the ordinance, the plaintiff filed an application with the City engineer for a permit to remodel and re- modernize the gas station. The City engineer refused to issue a permit, and the plaintiff sought mandamus in the circuit court of Washtenaw County to compel the issuance of a building permit.
HOLDING
The court noted first that every intendment is in favor of the constitutionality of an ordinance, and a plaintiff has the burden of showing that an ordinance has no real or substantial relation to the public health, morals, safety or general welfare. Zoning ordinances are constitutional in principle as a valid exercise of the police power.
In this circumstance, the continuation of such nonconforming uses as existed at the time of the adoption of the ordinance was permitted by the police power. The plaintiff’s property, which was used for nonconforming purposes, was next to a residence. The plaintiff’s contemplated new building, if erected, would have been no more than 10 feet from the side of the house on the adjoining lot. The court concluded that since the contemplated structure was not in accordance with the provisions of the zoning ordinance, the refusal was proper and there was no abuse of discretion. In light of these facts, a failure to vary the restrictions in this case could not be considered an abuse of discretion. Accordingly, the court dismissed the claim that the City’s action of refusing the permit was arbitrary or unreasonable.
People Tuohy v. City of Chicago 394 Ill. 477 (Ill. 1946) Illinois Supreme Court
After passing a statutory amendment to the Cities and Villages Act, the City of Chicago adopted an ordinance authorizing the issuance of $5 million in slum clearance bonds and provided for the levy of taxes to repay the bonds. The ordinance authorized the City to acquire, by purchase or condemnation, certain property for the rehabilitation of blighted areas. The ordinance was submitted to a vote at a special election held in the City of Chicago and the ordinance was approved by a majority of the voters voting on the question
Plaintiffs brought an action claiming: 1) the ordinance attempted to empower municipalities to acquire private property and use and dispose of the same for other than public purposes; and 2) it violated section 9 of Article 9 of the United States Constitution in that it attempted to vest municipalities with authority to assess and collect taxes for other than municipal corporate purposes.
The City averred that the public purposes of the Cities and Villages Act met all of the following requirements: 1) the law affected a community as distinguished from an individual; 2) the law controlled the use to be made of the property, namely, the elimination of a slum district, and other public uses; 3) the title was vested in a person or corporation as private property to be used and controlled as private property; 4) the public would reap the benefit of public possession and use, and no one could exercise control except the municipality. If there were any surplus land left which was not needed for any of these purposes, it could be sold, leased or exchanged as provided therein. This construction was consistent with the context and the purposes of the Act, and it did not authorize the taking of land for the sole and only purpose of sale, leasing, or exchange thereof.
HOLDING
Before the right of eminent domain may be exercised, the law requires that the use for which the land is taken shall be public as distinguished from a private use. Under the United States Constitution, property cannot be condemned for a private use. While from time-to-time the United States Supreme Court has attempted to define public use, all courts agree that the determination of whether a given use is public is a judicial function.
The contention that the power to lease manifests a private purpose is not sound, because it is settled that a city may lease property it owns when it is empowered to do so by the statutes.
The court further opined that the acquiring of land for such use as set forth in the Act is public and not private, for which the granting of the power of eminent domain is amply justified.
Further, the statute in question declares as a matter of public policy that a slum area is detrimental to public safety, health or morals. When this has been declared and authority given to a city to eliminate a slum area, it becomes a corporate purpose within the meaning of section 9 of Article 9 of the United States Constitution, and the power of taxation or the issuance of bonds, is authorized by an unbroken line of decisions.
