Lennox v. Housing Authority

290 N.W. 451, 137 Neb. 582, 1940 Neb. LEXIS 35
CourtNebraska Supreme Court
DecidedFebruary 23, 1940
DocketNo. 30841
StatusPublished
Cited by61 cases

This text of 290 N.W. 451 (Lennox v. Housing Authority) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lennox v. Housing Authority, 290 N.W. 451, 137 Neb. 582, 1940 Neb. LEXIS 35 (Neb. 1940).

Opinions

Carter, J.

This is an appeal from a judgment of the district court for Douglas county dismissing plaintiff’s petition in which a declaratory judgment as to the constitutionality of chapter 29, Laws 1935, and chapters 91, 92, 93 and 94, Laws 1937, commonly called the housing authority acts, was sought.

This suit was filed by plaintiffs in behalf of themselves and all others similarly situated. One of the plaintiffs is a property owner and taxpayer within the territorial limits of the housing authority project involved herein. The other plaintiffs own property outside the project and are taxpayers in the city of Omaha. The Housing Authority of the city of Omaha, the city of Omaha and their respective officers are made parties defendant. It is alleged that the Housing Authority of the city of Omaha was created under the provisions of chapter 29, Laws 1935, heretofore described, and that all of said act is wholly unconstitutional and void, because (a) it delegates legislative authority to [585]*585the governing board of the city and the five persons appointed to constitute the housing authority, contrary to section 1, art. II, and section 1, art. Ill of the state Constitution; (b) it fails to set up rules, standards and criteria to determine where a project is to be established, thereby resulting in the taking of private property without due process of law in violation of section 3, art. I of the state Constitution, and the Fourteenth Amendment to the Constitution of the United States; (c) that the body of the act is broader than its title, and (d) that the title contains more than one subject, contrary to section 14, art. Ill, of the state Constitution. For the foregoing reasons it is contended that the act is absolutely null and void. It is then alleg-ed that the legislature at its 1937 session passed chapter 92, Laws 1937, to legalize the creation and establishment of housing authorities in metropolitan cities and to make valid the unconstitutional provisions of chapter 29, Laws 1935. Plaintiff contends that said chapter 92, Laws 1937, has no such validating effect. The petition alleges that a legislative policy was for the first time announced with the enactment of chapters 91, 93 and 94, Laws 1937, wherein the legislature finds that conditions exist in the state which constitute a menace to the health, safety, morals .and welfare of its residents and justifies the enactment of the housing authority acts. It is contended that all of .said acts delegate legislative authority contrary to constitutional provisions; that all of said acts passed by the 1937 legislature are amendatory of and supplemental to the 1935 .act, although they were passed as independent acts; that all of said acts purport to take property for a public purpose to correct an emergent condition, where in fact there is no public purpose and no emergent condition, and that :said acts are therefore prohibited by sections 3, 21 and 25, .art. I of the state Constitution, and the Fourteenth Amendment to the federal Constitution; and that said acts are •class legislation inhibited by section 18, art. Ill of the state Constitution. It is further contended that section 4, ch. 91, Laws 1937, authorizing the housing authority to sell [586]*586property to the federal government, contravenes the due process clauses of the state and federal Constitutions. There is set out in the petition the ordinance passed by the city council of the city of Omaha, creating the housing authority; a copy of an agreement releasing taxes and other charges; a copy of the cooperation agreement between the city of Omaha and the housing authority, the resolution of approval on the part of the city and the authorization of Project No. Nebraska 1-2, involved herein. It is contended that the proceedings set out do not conform to the applicable statutes, and, if they do, that said statutes are violative of sections 3, 16, 21, 24 and 25, art. I; section 1, art II; sections 1, 14 and 18, art. Ill; sections 1, 2, 4, 6 and 7, art. VIII of the state Constitution, and the Fifth and Fourteenth Amendments to the Constitution of the United States.

Plaintiffs contend that chapter 29, Laws 1935, is unconstitutional for the reasons hereinbefore set out, and that the attempt of the legislature to validate the acts performed thereunder by the enactment of chapter 92, Laws 1937, is ineffective for any purpose. The aforesaid validating act says: “The creation and establishment of housing authorities under the provisions of chapter 29, Session Laws of Nebraska, 1935, and any amendments thereto, together with all proceedings, acts and things undertaken, performed or done with reference thereto, are hereby validated, ratified, confirmed, approved and declared legal in all respects,” etc. Plaintiffs contend that a statute purporting to validate, ratify and confirm an act will not correct a constitutional defect in an act previously passed. We do not feel that it is necessary to pass upon that point in connection with the matter presently before us for the reason that the legislature did not attempt to validate the prior statute but undertook merely to validate all proceedings taken under the former act. The validating act was general and not special legislation. Neither is it shown that any vested rights have been destroyed or any obligation of contracts impaired. New housing authority statutes were enacted governing the future conduct of the corporations therein created. We [587]*587think the general rule is that the legislature may validate irregular or unauthorized acts of quasi municipal and public corporations which it lawfully could have authorized originally, or which are defective as to matters with which it could have dispensed, and that it may cure the invalid •creation of such bodies. 16 C. J. S. 879, sec. 428. The housing authority acts passed by the 1937 legislature were all approved on May 18, 1937, and became effective on the same date. They should therefore be considered together. All proceedings and undertakings performed with reference to chapter 29, Laws 1935, are therefore properly validated, providing the legislature had the power to authorize said proceedings in the first instance.

We are convinced that chapters 91, 92, 93 and 94, Laws 1937, are independent acts, complete in themselves. This being true, they may change, modify or repeal prior enactments without violating section 14, art. Ill of the Constitution, relating to amendments. Hinman v. Temple, 133 Neb. 268, 274 N. W. 605; State v. Lehmkuhl, 127 Neb, 812, 257 N. W. 229. It is true that sections 6, 9 and 12, ch. 29, Laws 1935, were repealed by section 19, ch. 94, Laws 1937, and the title to the act, as well as the act itself, so states. It is also true that sections 6 and 12, ch. 29, Laws 1935, were actually rewritten in the form of an amendment in chapter 94, Laws 1937, but the title of the act and the act itself met constitutional requirements in this respect.

It is alleged that necessary constitutional requirements were not met in the adoption of chapter 29, Laws 1935. The fact remains, however, that said act is presumed to be constitutional. There has been no judicial determination of •invalidity. In 1937, chapter 94, Laws 1937, was enacted and it is contended that it supplies any defects that may have existed in the former law. The legislature also enacted chapters 91, 92 and 93, Laws 1937, having to do with housing authorities in cities of the metropolitan class. In a test of the legality of the creation, organization, operations and purposes of the housing authority of the city of Omaha', we necessarily conclude that chapter 29, Laws 1935, and [588]

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Bluebook (online)
290 N.W. 451, 137 Neb. 582, 1940 Neb. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lennox-v-housing-authority-neb-1940.