HRISANTHY J. PAPADINIS vs. CITY OF SOMERVILLE & another (and a companion case [Note Page627-1]).

SPALDING, J. These two cases, which were heard together, present the question of the constitutionality of portions of Part IV (entitled "Land Assembly and Redevelopment Projects") of the housing authority law. G. L. (Ter. Ed.) c. 121, Sections 26JJ to 26MM, as appearing in St. 1946, c. 574, Section 1, and as amended by St. 1953, c. 647, Sections 18, 19. In one, the plaintiff Papadinis under G. L. (Ter. Ed.) c. 231A, inserted by St. 1945, c. 582, Section 1, seeks a declaratory decree as to the right of the defendant Somerville Housing Authority, hereinafter called the authority, to take his land by eminent domain. The case was heard on a statement of agreed facts and the judge without decision reported the case. The other case is brought by fifteen taxpayers of the defendant city under G. L. (Ter. Ed.) c. 40, Section 53, and seeks to restrain the city from expending public funds under a "cooperation agreement" which the city has entered into with the authority in connection with a proposed slum clearance project. The defendants demurred and the judge after entering an interlocutory decree sustaining the demurrer reported the case. G. L. (Ter. Ed.) c. 214, Section 30.

The facts agreed upon in the Papadinis case and those admitted by demurrer in the taxpayers' suit are substantially

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the same. Both cases arise out of a slum clearance project in the Linwood-Joy area, so called, in the city of Somerville. In the Papadinis case the plaintiff challenges the constitutionality of the statute on the ground that it authorizes the exercise of the power of eminent domain for a nonpublic purpose. The basis for the attack in the taxpayers' suit is that the statute sanctions the expenditure of public funds for private purposes. The question presented by each case is basically the same, namely, whether the proposed project can be classed as a public use or service. If it cannot be, then under our Constitution there can be no exercise of either the power of eminent domain or the taxing power. Lowell v. Boston, 111 Mass. 454, 462. Allydonn Realty Corp. v. Holyoke Housing Authority, 304 Mass. 288, 292, and cases cited.

Section 26JJ, as amended, of Part IV of the housing authority law, after stating that substandard, decadent or blighted open areas exist in certain cities and towns of the Commonwealth and that such areas constitute a serious threat to the safety, health, morals and welfare [Note Page629-1] of the residents of the Commonwealth, then declares that "[T]he redevelopment of land not only in sub-standard areas but also in decadent and blighted open areas in accordance with a comprehensive plan to promote the sound growth of the community is necessary in order to achieve permanent and comprehensive elimination of existing slums and sub-standard conditions and to prevent the recurrence of such slums or conditions or their development in other parts of the community or in other communities; and that the redevelopment of blighted open areas promotes the clearance

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of sub-standard and decadent areas and prevents their creation and occurrence; that the menace of such sub-standard, decadent or blighted open areas is beyond remedy and control solely by regulatory process in the exercise of the police power and cannot be dealt with effectively by the ordinary operations of private enterprise without the aids herein provided . . . [and] that a public exigency exists which makes the acquisition, planning, clearance, rehabilitation or rebuilding of such sub-standard and decadent areas for residential, governmental, recreational, business, commercial, industrial or other purposes . . . public uses and benefits for which private property may be acquired by eminent domain or regulated by wholesome and reasonable orders, laws and directions and for which public funds may be expended for the good and welfare of this commonwealth . . .."

The authority established under Section 26K, as amended, of the housing authority law for the purpose, among other things, of clearing "sub-standard, decadent or blighted open areas" has found that the Linwood-Joy area was "sub-standard" and "decadent" within the meaning of Section 26J. [Note Page630-1] These findings, which are not challenged, are supported by elaborate subsidiary findings which show the area to be that of a typical slum. See Stockus v. Boston Housing Authority, 304 Mass. 507, 509-512. It also appears that the authority has done all things necessary under the provisions of Section 26KK, as amended, for the approval of a plan,

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hereinafter called the redevelopment plan, for the Linwood-Joy area, and that such plan has been approved in accordance with those provisions. Under the plan the authority is to take all land within the area by eminent domain and thereafter it is to be sold to private parties for redevelopment for private industrial uses. An agreement has been entered into between the city and the authority whereby the authority has agreed to undertake the redevelopment plan and the city has agreed to pay not less than one third of the cost thereof. The balance is to be paid for by grants obtained from the United States under Title 1 of the Federal housing act of 1949, 63 U.S. Sts. at Large, 414; U. S. C. (1952 ed.) Title 42, Section 1451 et seq.

The plaintiffs properly do not assail the statute on the ground that slum clearance is not a public purpose. If that were the only question involved the case would be governed by Allydonn Realty Corp. v. Holyoke Housing Authority, 304 Mass. 288. In that case, which involved other provisions of the housing authority law, it was held, after full discussion, that slum clearance was a public purpose for which public funds could be expended. And it was further held that the building of low rent housing units in conjunction with a slum clearance project was a means for the attainment of the primary objective, slum clearance, and was likewise a public purpose. The vice of the statute under consideration, according to the plaintiffs, is that it authorizes the exercise of the eminent domain power and the expenditure of public funds for the acquisition of land which will be sold to private persons. It is true that the redevelopment plan contemplates that after the area is cleared the land will be sold to private persons, and that this course is sanctioned by the statute. Section 26LL. This is the only material respect in which the statute under consideration differs from that in the Allydonn case. It is argued, however, that this difference is sufficient to invalidate the statute because it permits the power of eminent domain to be used for private purposes. We do not agree. Of course, that the power cannot be so used is too well

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settled to require citation of authority. But the plaintiffs' argument, we think, puts the cart before the horse. The plan here, properly interpreted, does not have for its primary objective the taking of the property of one individual and turning it over to another, so that slum clearance can be said to be merely incidental to that objective. On the contrary, we are of opinion that the main purpose of the plan is slum clearance and that the disposition of the land by sale thereafter is incidental to that purpose. Once the public purpose contemplated by the statute has been achieved the authority is not obliged to retain the cleared land as unproductive property. Dingley v. Boston, 100 Mass. 544. Moore v. Sanford, 151 Mass. 285. Wright v. Walcott, 238 Mass. 432, 436-437.

In Dingley v. Boston it was held that land taken in fee by the city of Boston by eminent domain for the purpose of correcting a defective drainage condition which had become a public nuisance was a public use notwithstanding the fact that on completion of the work the nuisance would be abated and the property might then be occupied by private persons. The case of Moore v. Sanford involved the constitutionality of a statute which authorized the taking by the Commonwealth of certain lands and flats for the improvement of Boston Harbor, and for furnishing better accommodations for the railroad and commercial interests of the city. The statute contemplated that portions of the land taken, when improved, would be sold to private persons for commercial purposes. It was contended that the statute was unconstitutional because it authorized the taking of property for private purposes. The court held that the property was taken primarily for a public purpose and the fact that after this purpose was accomplished the Commonwealth expected to sell some of the property to advantage did not invalidate the statute. "If lands are taken for a public use and for the benefit of the community, it is not of importance that individuals, or, as in this case, the Commonwealth, may derive incidental advantage therefrom" ( 151 Mass. 285, 290). "Stating the proposition broadly, the

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taking in fee of private lands for a public use, the achievement of the aim contemplated . . . and the subsequent sale of the land so taken for private improvement is a recognized and valid exercise of the power of the General Court." Wright v. Walcott, 238 Mass. 432, 436-437. The great weight of authority has upheld the constitutionality of slum clearance and redevelopment statutes against attack similar to that made here. [Note Page633-1] Indeed, in only two jurisdictions (Florida and Georgia) has the attack been successful. Adams v. Housing Authority of Daytona Beach, 60 So. (2d) 663 (Fla.). Housing Authority of Atlanta v. Johnson, 209 Ga. 560.

The further contention in the brief of an amicus curiae that the statute violates the Fourteenth Amendment to the Federal Constitution need not detain us long. In essence the argument is that Section 26LL of the statute empowers housing authorities to impose restrictions which might preclude residential use of a cleared slum area which is sold or leased for redevelopment. [Note Page633-2] Hence, it is said, this would prevent persons from living where they choose and would abridge their rights and privileges as citizens. We are of opinion that the point is without merit. We are not disposed to interpret the Fourteenth Amendment as forbidding a State from adopting measures in connection with slum clearance legislation which will prevent or render less likely the reemergence of slum conditions in the cleared area. The Legislature

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might well have concluded that this could best be accomplished if the area when cleared was devoted thereafter to nonresidential uses. We cannot say that this is unreasonable.

It is to be noted that the project here involved was found by the authority to be a "decadent" and "substandard" area as defined by the statute and in upholding the statute we do so only in so far as it applies to a redevelopment of such areas. Whether the statute would be constitutional as applied to the redevelopment of a "blighted open area" is a question not before us and we make no intimation one way or the other. [Note Page634-1] See Schneider v. District of Columbia, 117 Fed. Sup. 705, 719-725. Compare Redevelopment Agency of the City & County of San Francisco v. Hayes, 122 Cal. App. (2d) 777, 790-798.

It follows that in the Papadinis case a decree is to be entered declaring that the housing authority has a right to take the plaintiff's property by eminent domain. In the taxpayers' case the interlocutory decree sustaining the demurrer is affirmed.

So ordered.