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, §§ 26JJ to 26MM, as appearing in St. 1946, c. 574, § 1, and as amended by St. 1953, c. 647, §§ 18, 19. In one, the plaintiff Papadinis under G.L. (Ter. Ed.) c. 231A, inserted by St. 1945, c. 582, § 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, § 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, § 30.
The facts agreed upon in the Papadinis case and those admitted by demurrer in the taxpayers' suit are substantially
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
The authority established under § 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 § 26J.
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. § 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
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
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 § 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.
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.
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.