This appeal presents for decision the constitutionality of the Idaho Urban Renewal Law of 1965. Although this case originated as one in condemnation wherein plaintiff sought to acquire real property of the defendants, the sole question presented herein relates to defendants-appellants' numerous and various contentions regarding the constitutionality of the legislative act in question. It should be noted initially that defendants-appellants, assuming the statute is constitutional, raise no question pertaining to the public use for which the property is being taken, the necessity of the property being taken for the completion of the project, nor the amount of money awarded defendant for the property. The issues herein relate solely to the constitutionality of the statutes in question, the validity of the agency sought to be created by the statute and the ability of the agency to so operate under the authority granted it by the statute.
The Idaho Urban Renewal Law (Idaho Session Laws of 1965, Chapter 246) is codified as I.C. § 50-2001, et seq. Therein the legislature found and declared:
I.C. § 50-2005 provides:
I.C. § 50-2006 provides for the establishment in each municipality of an "Urban Renewal Agency," which under the provisions of I.C. § 50-2005 cannot exercise any powers until the proper findings have been made by the local governing body.
Pursuant to I.C. § 50-2005 the Boise City Council made the requisite findings of "deteriorated and deteriorating areas" within the City of Boise. On March 22, 1971 the Boise City Council adopted an amended Urban Renewal plan covering a certain area in downtown Boise. Defendants do not challenge the procedures carried out by the Boise City Council as conforming to the requisite procedures specified in the statute. Within the area contained in the amended urban renewal plan is located the real property and the building situated thereon owned by the defendants and the subject of this action.
Negotiations between plaintiff and defendants for the purchase of the property were unsuccessful and plaintiff filed an action in condemnation to acquire the property of the defendants. The trial court gave judgment of condemnation in favor of the plaintiff but found one clause of the Idaho Urban Renewal Act of 1965 to be unconstitutional. Defendants appeal from the judgment of condemnation and plaintiff has cross-appealed from the finding of the trial court of partial unconstitutionality of the Idaho Urban Renewal Act of 1965.
Defendants-appellants first contend that the trial court erred in holding that defendants' property was being taken for a public use and assert that such taking is prohibited by Article I, Sections 13 and 14 of the Idaho Constitution and the Fourteenth Amendment to the Constitution of the United States. Article I, Section 13 of the Constitution of the State of Idaho and the Fourteenth Amendment to the Constitution of the United States provide that no person shall be deprived of property without due process of law. Article I, Section 14 of the Constitution of the State of Idaho provides:
Other constitutional and statutory provisions of significance are:
Article 11, § 8 states:
I.C. § 7-701 states:
Defendants assert that because of the proposed methodology for the development of the area in question under the amended urban renewal plan, the use is not "public" as required by the various constitutional and statutory strictures of Idaho. Plaintiff's proposal, as set forth in the plan, is to clear the area and thereafter permit private enterprise, on a bid basis, to construct and occupy certain of the buildings planned for the area. Some of the proposed buildings for the area may be used by the City of Boise or by the County of Ada, but the majority will be constructed and occupied by private commercial enterprises. The defendants contend that these private commercial enterprises will "benefit" by the plan and that therefore condemnation is not allowed by the constitutional and statutory strictures.
Defendants base their arguments upon three cases which so held and which rejected similar plans in other states, to-wit: Florida, Georgia and South Carolina. Adams v. Housing Authority of City of Daytona Beach, 60 So.2d 663 (Fla. 1952); Housing Authority of City of Atlanta v. Johnson, 209 Ga. 560, 74 S.E.2d 891 (Ga. 1953); Edens v. City of Columbia, 228 S.C. 563, 91 S.E.2d 280 (1956). Respondent, on the other hand, indicates that more than thirty other states have in similar situations and under similar plans accepted the "public use" as being legitimately served by the clearance of blighted and/or deteriorated areas. The fact that private interests may incidentally benefit has not been held to prevent the application of the "public use" doctrine as sought by respondent herein. See: Annotation, Urban Redevelopment Laws, 44 A.L.R.2d 1414, and later case service; Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 103, 99 L.Ed. 27 (1954), in which it is stated:
See also: Rabinoff v. District Court, 145 Colo. 225, 360 P.2d 114 (1961); Redevelopment Agency of San Francisco v. Hayes, 122 Cal.App.2d 777, 266 P.2d 105 (Cal. App. 1954), cert. den. sub nom. Van Hoff v. Redevelopment Agency of San Francisco, 348 U.S. 897, 75 S.Ct. 214, 99 L.Ed. 705 (1954); Foeller v. Housing Authority of Portland, 198 Or. 205, 256 P.2d 752 (1953).
The state, both through the power of eminent domain and the police powers, may legitimately protect the public from disease, crime, and perhaps even deterioration, blight and ugliness. See: Berman v. Parker, supra. Unless defendants herein have shown that the purpose of the urban renewal plan fails to meet the
We note that the Constitution of the State of Idaho, Article I, Section 13, supra, grants a right of eminent domain much broader than grants in most other state constitutions. For example, completely private interests in the irrigation and mining businesses can utilize eminent domain. As was said in McKenney v. Anselmo, 91 Idaho 118, 123, 416 P.2d 509, 514 (1966):
In Bassett v. Swenson, 51 Idaho 256, 263, 5 P.2d 722, 725 (1931):
In the case at bar it is clear that public benefit is intended and is served by the legislation herein attacked by appellants. It is clear that the purposes set forth in I.C. § 50-2002, supra, will be accomplished in part by the upgrading of deteriorated and deteriorating areas. It appears that the only means by which such a public benefit can be effectively achieved is through the involvement of the private commercial interests. On the other hand there is no showing that any particular private interests will be discriminated for or against in the letting of bids for redevelopment, or that any favored status will be granted.
We therefore conclude that the power of eminent domain attempted to be utilized herein is for a "public use" as is required by our Constitution. As herein stated, such has been the nearly universal consensus of the courts which have passed on the same question. 44 A.L.R.2d 1414.
Appellants asserted in the lower court that the plaintiff herein was merely the alter ego of the City of Boise, or, at the least, a subdivision of the State of Idaho. Appellants contend that, since plaintiff falls into one of the two above categories, its authorized activities, insofar as the issuance of revenue bonds without the consent of the electorate is concerned, violate Article 8, Section 3 of the Idaho Constitution. The lower court found contrary to those assertions and we agree with the finding of the lower court. The pertinent constitutional provisions relative to the assertions of the appellants are as follows:
We deal first with the contention that the plaintiff is the alter ego of the City of Boise. Defendants point to the necessity for a finding of deteriorated areas by the City prior to the plaintiff being able to exercise any of the authority prescribed by the Legislature. Defendants also point to the appointment of the commissioners of the plaintiff by the Mayor and council of the City of Boise and to the ability of the Mayor and local governing body to remove a commissioner of the plaintiff from office.
We note, however, that plaintiff is an entity of legislative creation and it is the legislature that established its powers, duties and authorities. The legislature, in what we may assume to be an effort to maintain some local voice in the question of whether a particular municipality had a need for urban renewal, required a finding of need by a municipality prior to the time an urban renewal agency could come into existence. While the particular city may trigger the existence of the plaintiff, it cannot control its powers or operations.
We conclude that the statutory provisions allowing a local voice in the creation of the plaintiff do not result in a finding that plaintiff is simply the alter ego of the City of Boise. The degree of control exercised by the City of Boise does not usurp the powers and duties of the plaintiff, and the close association between the two entities at most shows two independent public entities closely cooperating for valid public purposes. In Wood v. Boise Junior College Dormitory Housing Commission, 81 Idaho 379, 342 P.2d 700 (1959), the contention was made that the Commission was merely an alter ego of the Boise Junior College District and as such was forbidden by the provisions of Article 8, Section 3, to issue bonds. The court therein stated:
It is apparent that this case is distinguishable from the case of O'Bryant v. City of Idaho Falls, 78 Idaho 313, 303 P.2d 672 (1956). Therein the court held that an ordinance of the City of Idaho Falls creating a cooperative with the power to issue bonds was unconstitutional because that cooperative was merely an alter ego of the City of Idaho Falls. The facts on that record showed that the cooperative was merely an attempt by the City to do indirectly that which it could not do directly. Herein such facts do not exist.
We further hold that the plaintiff is not a subdivision of the state within the meaning of Sections 3 or 4 of Article 8 of the Idaho Constitution. As pointed out in Lloyd v. Twin Falls Housing Authority, 62 Idaho 592, 113 P.2d 1102 (1941), the questioned authority has no powers of taxation and therefore the provisions of Article 8,
Appellants next contend that Section 4 of Article 8 of the Idaho Constitution has been violated in that the City of Boise lent its credit to the plaintiff, and further that Section 4 of Article 12 of the Idaho Constitution was violated in that the City of Boise has made donations to and loaned its credit to or in aid of the plaintiff herein. The District Court held that, to the extent such was done without consideration, the above constitutional provisions were violated and the portions of I.C. § 50-2015 authorizing such contributions without consideration were void.
I.C. § 50-2015, "Cooperation by public bodies," provides in pertinent part:
It is at least arguable that the above provisions do indeed constitute a "donation or loan [of] credit" and that the City of Boise is "raising money for" the plaintiff.
See also: Engelking v. Investment Board, 93 Idaho 217, 458 P.2d 213 (1969). The purpose of such a prohibition is clear. Favored status should not be given any private enterprise or individual in the application of public funds. The proceedings and
It is apparent that in the case at bar the evils sought to be prevented by the constitutional provisions in question do not exist. The plaintiff possesses no ability to impose taxes upon the residents of the City of Boise, nor may the plaintiff encumber any public assets to the advantage of private enterprise. Plaintiff, being a public and not a private enterprise, does not fall within the strictures and prohibition of Article 8, Section 4 and Article 12, Section 4 of the Idaho Constitution, and the action of the District Court in declaring that portion of I.C. § 50-2015 invalid and void because of conflict with these constitutional provisions is incorrect and is reversed.
Defendants next contend that the inclusion of certain buildings within the amended urban renewal plan area was in violation of Article 1, Sections 13 and 14 of the Idaho Constitution. They suggest that such buildings were not deteriorated and therefore not subject to condemnation. We note first that defendants do not contest the "use and necessity" of the condemnation of their particular property for the project, but rather assert that inclusion of non-substandard properties and structures authorizes a taking for other than public purposes. The point raised by defendants may be moot, but nevertheless, because of the broad public interest raised by the parties and amicus curiae we discuss briefly plaintiff's contention.
The stipulated facts of this case indicate that of the 65 buildings located within the project area, 45 are deficient and defective, requiring clearance. Fourteen of the buildings located within the project area are deficient and defective with their rehabilitation highly questionable. One building located within the project area is sound but of a non-conforming use. One building within the area is sound and is of a conforming use; however, that building is to be retained intact in the project. Additionally, there are seven pieces of property with no buildings located thereon.
I.C. § 50-2018 sets forth the definition of certain terms in the Idaho Urban Renewal Act of 1965 and speaks of "deteriorated area" and "deteriorating area." The areas thus discussed are those in which "a predominance" of the structures and other improvements are deteriorating and defective or similar terms.
The definitions contained in I.C. § 50-2018 are, in our view, sufficiently precise to give adequate guidelines to the local governing body. As set forth in Berman v. Parker, supra, where a legislature (in that case, the Congress) in a non-arbitrary manner chooses the alternative of attacking an urban development problem on an area basis rather than structure by structure, such is a permissible methodology. See: Annotation, 44 A.L.R.2d 1414 and cases cited therein. The grant of eminent domain in our constitution, Article 1, Section 14, is extremely broad, and insofar as the use is public, property may be taken. The only qualification in that constitutional provision is that the use must be "necessary." As stated herein, defendants do not contest the use or necessity of their particular property, nor do they interpose any objection to the necessity of all other lots and structures being taken for the project but rather rest their objections solely on the basis that some of the structures were sound. It is clear that in such a project as
Defendants lastly contend that the authority granted the local governing bodies to make the required findings of fact under I.C. § 50-2005 constitutes an unlawful delegation of legislative power in violation of Article 3, Section 1 of the Constitution of Idaho. It is clear that the legislative power of the state is by our Constitution vested in the Senate and House of Representatives and it is a fundamental principle of representative government that, except as authorized by organic law, the legislative department cannot delegate any of its power to make laws to any other body or authority. Local Union 283, International Brogherhood of Electrical Workers v. Robison, 91 Idaho 445, 423 P.2d 999 (1967); State v. Purcell, 39 Idaho 642, 228 P. 796 (1924); State v. Nelson, 36 Idaho 713, 213 P. 358 (1923). It is also clear, however, as stated in Foeller v. Housing Authority of Portland, 198 Or. 205, 256 P.2d 752, 780 (1953), that:
We find that language of the Oregon Court to be persuasive in the case at bar. Herein, only a "fact-finding" status exists in the City of Boise under I.C. § 50-2005. We find that there are sufficient and adequate standards contained in that section, and particularly so when that section is read in combination with the language of Section 50-2018, containing the definitions of "deteriorating" and "deteriorated" areas. See also: 44 A.L.R.2d 1414.
The judgment of the District Court is correct and is affirmed save only as to that portion which declares a part of I.C. § 50-2015 to be in violation of the Idaho Constitution, which portion of the judgment of the District Court is reversed.
Costs to respondent.
McQUADE, C.J., McFADDEN and DONALDSON, JJ., and SCOGGIN, District Judge, concur.