
    The State, ex rel. Ellis, City Solicitor, v. Sherrill, City Manager.
    (No. 27410
    Decided February 28, 1940.)
    
      
      Mr. John D. Ellis, city solicitor, Mr. Frcmcis T. Bartlett and Mr. Alfred Bettman, for relator.
    
      Mr. Walter K. Sibbald, for respondent.
   By the Court.

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 created, and empowered to loan and dispense government funds to duly constituted local housing authorities or agencies in the various states, for two principal purposes: (1) the eradication of so-called slum areas, “injurious to the health, safety and morals of the citizens of the nation,” and (2) as a concomitant thereof, the furnishing of low-rent dwellings to families of low incomes.

Naturally, in the execution of such a program a great deal must be left to the discretion and sound judgment of the local authorities, appointed in compliance with the state law. When it appears that such judgment and discretion is being reasonably exercised within lawful limits, no basis is afforded for judicial intervention.

An examination of the evidence presented in the pending case shows on the whole a carefully conceived and balanced plan to abolish selected slum areas in the city of Cincinnati and to provide low-rent dwelling units within the municipal limits for families of low incomes, in general conformity with the purpose and design of the controlling legislation.

If a plan as formulated by a local authority comes within the purview of the housing act and meets the approval of the National Housing Authority, whereby it is willing to lend federal funds in furtherance thereof, a court may not interfere.

As we view the situation, no valid or sufficient reason exists for the refusal of the respondent to sign the contract as directed by the city ordinance.

Since the passage of the United States Housing Act, followed by necessary and appropriate enactments in different states to take advantage of the national bounty, frequent attacks have been made upon this legislation and the steps taken thereunder as to constitutionality and on almost every other conceivable ground. Such legislation and the ensuing activities have been upheld generally by the courts, as is shown by the following representative cases, recently decided: Housing Authority of County of Los Angeles v. Dockweiler (Cal. Sup.), 94 P. (2d), 794; Laret Inv. Co. v. Dickmann (Mo. Sup.), 134 S. W. (2d), 65; Matthaei v. Housing Authority of Baltimore (Md. App.), 9 A. (2d), 835; Allydonn Realty Corp v. Holyoke Housing Authority (Mass. Sup.), 23 N. E. (2d), 665; Stockus v. Boston Housing Authority (Mass. Sup.), 24 N. E. (2d), 333; In re Brewster Street Housing Site in City of Detroit (Mich. Sup.), 289 N. W., 493; Romano v. Housing Authority of the City of Newark (N. J. Sup.), 10 A. (2d), 181; Chapman v. Huntington, W. Va., Housing Authority (W. Va. Sup. Ct. of App.), 3 S. E. (2d), 502. The writ as prayed for will issue.

Writ allowed.

Weygandt, C. J., Day, Zimmerman and Williams, JJ., concur.

Myers, Matthias and Hart, JJ., dissent.

Myers, Matthias and Hart, JJ.,

dissent for the reason that in order to secure federal aid, territorial areas in Cincinnati and other cities of Ohio, where housing authority projects have been authorized, are to become bodies corporate and politic, and are to be federalized. To the extent that they are federalized, the state of Ohio and the cities lose governmental jurisdiction therein. If federal loans made to the local building authority to finance the projects should be in default, the Federal Housing Authority may foreclose its claim, sell the property, purchase it at such sale, and operate it as federal-owned property.

In accepting the terms of the Federal Housing Act, all capital, income, assets and property of every kind within the territorial limits of the projects are exempted from all taxation by the state, county or municipality in which they are located. In lieu thereof, the city agrees to accept from the Cincinnati Housing Authority a total service charge of 2% per cent of the shelter rents received from the buildings erected on the project. This violates the taxation provisions of the Ohio Constitution which require uniformity in taxation. The city of Cincinnati .must agree to dedicate and accept for municipal purposes all streets and public lands which the Cincinnati Housing Authority determines to use for streets and alleys within the project. The city must agree to grant easements, licenses and permits, giving such local authority the right to construct and maintain public utility services over or across any public streets or alleys of the city dividing any project site into two or more parts, so as to enable the local authority to furnish and distribute such utility service throughout the project. The city must also agree to furnish to the project, utility services, such as public street lighting, water, fire, police and health protection, street maintenance, garbage and waste collection and disposal, at cost. The so-called cooperation contract does not, in fact, provide for slum clearance as contemplated by the law hut rather for the construction of large apartment buildings at low priced rentals far removed from slum districts. This plan illustrates present day trends in the extension of national governmental activities with a corresponding diminution of the rights of states and their governmental subdivisions. It is a surrender of state sovereignty and local governmental power neither authorized nor intended by the state or federal Constitution.

We are asked to issue a writ of mandamus to compel the authorities of the city of Cincinnati to execute a contract agreeing to assume these burdens and responsibilities over a contemplated period of not less than sixty years, accompanied by a surrender of governmental power and control. This is too great a price for the state of Ohio and the city of Cincinnati to pay for so-called “national bounty.” The writ should he denied.  