Prologue — Clark v. California

Supreme Court brief1954

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blighted areas in the act is so broad as to provide no

standards by which the agency may be guided, and

hence it has the absolute power to determine what

facts constitute any of the elements constituting

blight. This same contention in almost identically

the same language was made concerning the ‘‘ Urban

Redevelopment Law’’ of Pennsylvania in Belovsky v.

Redevelopment Authority, swpra, 54 A.2d 277. The

answer given by the court there applies equally here

(p. 283): ‘‘One of these assaults is directed against

an alleged delegation of legislative powers contrary

to the provision of Article I, section I of the Con-

stitution, P.S., it being claimed that insufficient stand-

ards are set up im the statute to guide the Authority

in exercising the powers with which it is vested. The

fact is, however, that the act contains as definite a

description of what constitutes a blighted area as it

is reasonably possible to express; in regard to such

factors as the selection and the size of the areas to be

redeveloped, the costs involved, and the exact form

which the redevelopment in any particular case is to

take, it was obviously impossible for the legislature

to make detailed provisions or blueprints in advance

for each operation. * * * All that the legislature eould

do, therefore, was to prescribe general rules and rea-

sonably definite standards, leaving to the local au-

thorities the preparation of the plans and specifica-

tions best adapted to accomplish in each instance the

desired result, a function which obviously can be per-

fermed only by administrative bodies. While the

legislature cannot delegate the power te make a law,

—, —

it may, where necessary, confer authority and discre-

tion in connection with the execution of the law; it

may establish primary standards and impose upon

others the duty to carry out the declared legislative

policy in accordance with the general provisions of

the act.’’ See, also, Housing ‘Authority v. Dockweiler,

supra, 14 Oal.2d 437, 462; People v. City of Chicago,

supra, 111 N.E.2d 626. Blate Brewing Co. v. Collins,

69 Cal.App.2d 639 [160 P.2d 37], is not opposed to

our views here. That case held that “‘the Legislature

may not delegate authority to a board or commission

to adopt rules which abridge, enlarge, extend or

modify the statute creating the right.’’ (P. 645.)

That principle is not involved here.

SPECIAL PRIVILEGES

Respondent contends that the act violates section

21, article I of the Constitution, which prohibits the

granting of special privileges, in that the act provides

that sale of the redeveloped property may be made on

the basis of its ‘‘fair value’’ arrived at as provided

in the act, and as there is no minimum price set, the

‘‘fair value’? may be less than the actual cost to the

agency. Therefore, says respondent, the purchaser

might profit on the transaction, giving him a special

privilege over the rest of the public. The same con-

tention was made in Housing Authority v. Dockweiler,

supra, 14 Cal.2d 437, 460, concerning the fact that the

houses to be erected were only to be rented to a cer-

tain class of citizens, and identically the same con-

tention was made in Opinion to the Governor, supra,

69 A2¢ 531, 534; In ve Slum Clearance in City of

Detroit, supra, 50 N.W.2d 340, 343; and in Belovsky

v. Redevelopment Authority, supra, 54 A.2d 277. In

all of them it was held that the fact that following

the elimination of blighted conditions some incidental

advantage might inure to private interests did not

cause the taking to lose its public character nor make

the statute unconstitutional.

PROHIBITION OF GiFTs oF PuBLic MonrEys

Respondent contends that the furnishing of local

grants-in-aid by the city provided for in the contracts

sought to be executed here and the other public finan-

cial assistance to the agency proposed, constituted

either the giving or lending of public moneys to pri-

vate persons in violation of section 31, article IV of

the Constitution, Actually there is no such gift or

lending of mcney to private persons. The grants-in-

aid are primarily for the providing of street improve-

ments, fire protection, traffic control, schools, play-

grounds, and other public services. The same objec-

tion was made to the Housing Cooperation Law in

Housing Authority v. Dockweiler, supra, 14 Cal.2d

437, 458, and in Veterans’ Welfare Board v. Jordan,

189 Cal. 124, 146 [208 P. 284, 22 A.L.R. 1515], to the

statute authorizing a bond issue to acquire lands, im-

prove and sell them to veterans. In both cases it

was held that. the funds were being used by a public

body for a public purpose, and were not given or

loaned to private persons. In Patrick v. Riley, 209

Cal, 350, the court stated (p. 357 [287 P. 455}): ‘As

indicated in the case of City of Oakland v. Garrison,

supra [194 Cal. 298 (228 P. 433)], at page 302, the

fundamental test of the constitutionality of a statute

requiring the use of public funds is whether the stat-

ute is designed to promote the public interests, as

opposed to the furtherance of the advantage of indi-

viduals; and such a statute should not be declared

unconstitutional because of the fact that, incidental

to the main purpose, there results an advantage to

individuals.’’ (See, also, People v. City of Chicago,

supra, 111 N.E.2d 626.)

Errect oF Section 19, ArtrcLE XIII, ConstrruTION

In 1952 this section was added to the Constitution

by adoption by the people of an assembly constitu-

tional amendment. In part it provides: ‘‘All of the

provisions of the Community Redevelopment Law, as

amended in 1951, which relate to the use or pledge of

taxes or portions thereof as herein provided, or which,

if effective, would carry out the provisions of this sec-

tion or any part thereof, are hereby approved, legal-

ized, ratified and validated and made fully and com-

pletely effective and operative upon the effective date

of this amendment.’’ In the analysis of this amend-

ment by the Legislative Counsel sent to the voters

appears the following: ‘‘In addition, the measure

would validate all provisions of the Community Re-

development Law consistent with the foregoing relat-

ing to the use or pledge of taxes.’’ In the arguments

in favor of the amendment appears the following:

“This Constitutional Amendment provides a method

of financing community redevelopment projects by re-

lieving general taxpayers. Community redevelopment

must be distinguished from public housing. The pur-

pose is to eliminate blighted areas. Under the law,

redevlopment, including the construction of streets,

curbs, sidewalks and buildings, must be financed by

private capital. However, a city or county must first

acquire the property, if necessary by condemnation,

because an individual, syndicate or corporation does

not have the right of eminent domain and one prop-

erty owner might refuse to sell and block the develop-

ment.

“The difference between the expense of acquisition

and clearing off the old, dilapidated buildings may

be greater than the amount that may be received in

the sale of the property for redevelopment in accord-

ance with an officiaily approved plan. * * *

“Tf adopted, this constitutional amendment will

readily facilitate the redevelopment of blighted areas

in cities and counties as now authorized by the Com-

munity Redevelopment Act of the State of Califor-

nia. Blighted areas are an economic and social drag

upon the community and it is good public business to

eliminate them.”’

‘*While an amendment to a state constitution rati-

fying and confirming an act of its legislature is in-

effectual to validate that act if it impair the obliga-

tions of a contract or divest vested rights, still such

an. amendment may otherwise cure the infirmities

of an act, and to that extent the aet is thenceforth

to be regarded as constitutional.”’ (Lee v. Superior

Court, 191 Cal. 46, 53 [214 P. 972].)

In view of the analysis sent to the voters, “If

adopted, this constitutional amendment will readily

facilitate the redevelopment of blighted areas’’ and

the statement in the amendment that “All of the pro-

visions of the Community Redevelopment Law, as

amended in 1951 [the act with which we are dealing]

* * * ore hereby approved, legalized, ratified’’ etc., it

is obvious that the people were not restricting their

ratification to such portions of the act as dealt with

blight caused by slum conditions and refusing ratifica-

tion to blight caused by the other conditions enumer-

ated in the act. (Emphasis added.)

Excess CONDEMNATION

Section 1414, article I, California Constitution.

This section, adopted in 1928, provides that in ac-

quiring lands by gift, purchase or condemnation for

memorial grounds, streets, squares or parkways, the

state or any of its cities or counties may acquire ad-

ditional lands within, in certain cases 150 feet, and in

other cases within 200 feet, of the proposed improve-

ment, and after the improvement is completed may

sell the excess land not necessary for such improve-

ment, with reservations concerning the use of such

land so as to protect the improvement and to preserve

its view, appearance, light, air and usefulness. The

title to Senate Constitutional Amendment No. 16

(Stats, 1927, p. 2371), the means whereby section

1414 was placed on the ballot, states that it is a resolu-

tion to propose to the people as addition to the Con-

stitution a section ‘‘relating to the taking of parcels

of land by eminent domain where such border upon

public improvements.’’ An examination of the argu-

ment to the voters concerning the proposed section

(see part I, page 17 of Arguments to Voters for the

election of November 6, 1928) clearly shows that the

section was intended primarily to apply to ‘“‘little

fractions of lots in the form of slivers or small tri-

angles’’ left after making the particular improve-

ments mentioned in the section, and in no manner was

intended to apply either as an inhibition or otherwise

to the projects contemplated in the act. Obviously

there is no conflict between this section and the act.

This section is limited to memorial grounds, streets,

squares and parkways. Were there any such conflict

the adoption in 1952 of section 19, article XITI, ex-

pressly recognized the Community Redevelopment

Law, would end the conflict. It is interesting to note

that in Stute ex rel. Bruestle v. Rich, supra, 110 N.E.

2d 778, it was held “‘even if purchase or condemna-

tion of the fee of the real estate in the slum area

does involve acquisition of a greater interest in such

real estate than actually necessary to accomplish the

purpose of eliminating slum conditions and providing

against their recurrence’ (p. 787) such acquisition

was specifically authorized by section 10 of article

XVIII of the Ohio Constitution, which provided for

excess condemnation generally, rather than limiting

it, as does our Constitution, to specified purposes,

WESTERN ADDITION FINANCES

_ As to Western Addition, interveners contend that

the proposed plan violates section 33741. That sec-

tion requires that no plan shall be approved unless it

contains adequate safeguards that the work will be

carried out pursuant to the plan, and it is contended

that the plan will cost far more than the estimates

shown, that petitioners are not acting in good faith

as they are concealing the true costs, and that the

moneys to be received from the federal government

are not adequate to complete the plan. Primarily the

adequacy of the finances and the safeguards for com-

pleting the plan are for the determination of the ad-

ministrative bodies. If they are not acting in good

faith, interveners can bring an appropriate proceed-

ing to determine that question in the trial court.

CLEAN HaNnps

Interveners contend petitioners are not entitled to

equitable relief as they do not come into court with

clean hands. This is based upon the contention that

the contract which petitioners seek to have executed

contains inaccurate data which should be corrected

and brought up to date before execution, and that

petitioners have prevented development of the area.

As we have heretofore shown, this is not the proper

forum in which to raise such question, interveners

having no right to broaden the scope of the proceed-

ing. (Wright v. Jordan, supra, 192 Cal. 702, 704,

714.) Whether the agreement is an improvident and

unwise one for the Agency to make is for the Agency

and the city to determine. As said in In re City &

County of San Francisco, 191 Cal. 172, 185 [215 P.

549], ‘‘In forming its judgment it must be presumed

that the City considered the wisdom and policy of

the whole plan in the light of the objects to be at-

tained. The answer to adverse criticism is that the

judgment of the City is conclusive in the absence of

a showing of want of jurisdiction on the part of the

City or a showing of bad faith on the part of its

officers or gross extravagance or the existence of some

fact sufficient to vitiate the contract.’’ (See, also,

City & County of San Francisco v. Boyd, 22 Cal.2d

685, 690 [140 P.2d 666].) ‘‘ ‘* * * it is not for the

courts to pass upon the merits of suggestions as to

how the contract might be strengthened by amend-

ments the desirability and effectiveness of which are

for the consideration solely of the agencies and gov-

erning body to which the Urban Redevelopment Law

has committed that responsibility.’ ’’ (Oliver v. City

of Clairton (June, 1953), 374 Pa. 333 [98 A.2d 47,

51].)

We fail to see how the failure of the city to develop

its portion of the Diamond Heights Area in the past

estops or prevents it from redeveloping the entire

area.

It should be emphasized that it is the combination

in Diamond Heights of practically all the blight con-

ditions mentioned in section 33042, subdivisions (a)

to (d), showing a definitely compelling economic

need, which permits the use of the act. Public agen-

cies and courts both should be chary of the use of the

act unless, as here, there is a situation where the

blight is such that it constitutes a real hindrance to

the development of the city and cannot be eliminated

or improved without public assistance. It never can

be used just because the public agency considers that

it can make a better use or planning of an area than

its present use or plan. As said in Schneider v. Dis-

trict of Columbia, supra, 116 F.Supp.—— ‘‘* * * it

behooves the courts to be alert lest currently attrac-

tive projects impinge upon fundamental rights.’’

The demurrers of respondent and interveners to

the petition and of petitioners to the complaint in

intervention are overruled. The motion of petitioners

to strike all portions of the complaint in intervention

other than those which constitute a demurrer to the

petition is granted. It is ordered that a peremptory

writ of mandate issue commanding respondent to ex-

ecute the contracts referred to in the petition.

Bray, J.

Peters, P. J., and Wood (Fred B.), J., concurred.

Filed January 26, 1954,

Walter S. Chisholm, Clerk.

FILED

JUN 2 1 1954

In the Supreme Corrfwoo o. murr,c

OF THE

Puited States

OctoBER TERM, 1953

No S87

‘

FLoRENCE VAN Horr and Victor Bera,

Petitioners,

Vs.

REDEVELOPMENT AGENCY OF THE CITY AND

County or San Francisco, a public

body, corporate and politic, and THE

Crry anp County or San FRANCISCO,

a municipal corporation,

Respondents.

RESPONDENTS’ BRIEF IN ANSWER TO

PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT

OF APPEAL OF THE STATE OF CALIFORNIA.

Counsel for Respondent :

Dion R. Hoo,

City Attorney.

Joun E.mMer BaRRICKLO,

Assistant City Attorney,

Moriey GOLDBERG,

Assistant City Attorney,

Of Counsel.

206 City Hall, San Francisco 2, California.

Crsstions WUseOd ....0aine dics cna.cnctis os os sain mpeenten 2

Darla ic 6.0 ods ce Ke babs ches vicn seed edocs Were odes 3

Reatemont Of Whe: GROG 20:0 «50.0 hii ct 00a 64 09s deeneeaths gees 3

OE iin a kk ch ecke dda Ghee tan ke bske be ishendaenn 8

1. The act is not violative of the Fourteenth Amendment 8

2. Did the reservation by the District Court of Appeal of

.the State of California of factual issues to be deter-

mined in a different proceeding deprive petitioners of

procedural due process in contravention of the Four-

COGN DIONE nas ss cas ccs cs vekeaunscacduces? 13

8. Does the delegation of administrative fact finding

powers by the State Legislature to administrative agen-

cies valid under the State Constitution present a Fed-

eral question which will confer jurisdiction upon this

Court? ....... Go dbee Ga etek ebet es usicesVetiowes 15

Conclusion naseeees aspenkes céees snneni ><a ise dheuadentes - 9

Table of Authorities Cited

Cases

Block v. Hirsch, 256 U.S, 135

Boskowitz v. Thompson, 144 Cal. 724, 78 Pac. 290

Burt v. City of Pittsburgh, 340 U.S. 802, 71 S. Ct. 53,

95 L. Ed. 589

Chieago Land Clearance Commission v. Inez White, et al.,

Supreme Court of Illinois, 411 Til. 310, 104 N.E, 2d 236

(1952)

Cities Service Gas-Co. v. Peerless Oil &-Gas Co., 349 U.S.179 18

Clark v.. Nash, 198 U.S. 361

Dreyer-v: People of the State of IHinois, 187 U.S. 71

Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112

Foeller v. Housing Authority of Portland and City of Port-

land, Supreme Court of Oregon, 198 Or. 205, 256 Pac.

2d 752 (1953)

George Ajootian v. Providence Redevelopment Agency of the

_ City of Providence, et al., Supreme Court of Rhode Island,

‘91 A. 2d 21 (1952)

Gohld Realty Co. v. City of Hartford, March 1954, Supreme

Court of Errors, Connecticut, 104 A. 2d 365

In the -Matter of Sham. Clearance - in the City of Detroit—

Hastings, Gratiot, De Quindre and Mullett Streets, Su-

preme Court of Michigan, 331 Mich. 714, 50 N.W. 2d

Jayne L. Burt v. City of Pittsburgh, et al., judgment affrmed

by the Supreme Court, 340 U.S. 802 (1950)

John F. Zurn v. The City of Chicago, et al., Supreme Court .

_ of Illinois, 389 Ill. 114, 59 N.E. 2d 18 (1945)

Kaskel v. Impellitteri, 306 N.Y. 73, 115 N.E. 24 659, cere

tioreri denied, .. U.S... 98 L. Ed. (Advance p, 512)

sen Miicidncdkanignte Sill

Taste or AuTHorRITIES CrrED

iii

Pages

La Mesa ete. Irr. Dist. v. Halley, 195 Cal. 739, 235 Pac. 999

Lichter et al. v. U. 8., 384 U.S. 742

Martha Belovsky v. Redevelopment Authority of the City of

Philadelphia, et al., Supreme Court of Pennsylvania, 357

Pa. 329, 54 A. 2d 277, 172 A.L.R. 953 (1947)

Oliver v. City of Clairton, Supreme Court of Pennsylvania,

374 Pa. 333, 98 A. 2d 47 (1953)

Olsen v. Nebraska, 313 U.S. 236

Opinion of the Justices, 254 Ala. 343, 48 So. 2d 757 (1950)

Opinion to the Governor, Supreme Court of Rhode Island,

76 R.I. 249, 69 A. 2d 531 (1949)

People ex rel. John Gutknecht, v. City of Chicago, et al.,

Supreme Court of Illinois, 414 Ill. 582, 111 N.E. 2d 626

(1953) :

People ex rel. Tuohy v. City of Chicago, et al., Supreme

Court of Illinois, 399 Ill. 551, 78 N.E. 2d 285 (1948)

People ex rel. William J. Tuohy v. City of Chicago, et al.,

Supreme Court of Illinois, 394 Ill. 477, 68 N.E. 2d 761

(1946)

People of Puerto Rico v. Eastern Sugar Associates, 156 Fed.

2d 316, certiorari denied, 329 U.S. at 772

Reseue Army v. Municipal Court, 331 U.S. 549

Rindge Co. v. Los Angeles, 262 U.S. 700

Robinette v. Campbell, 342 U.S. 940, 72 S. Ct. 569, 96

Robinette v. Chicago Land Clearance Commission, U. S.

Dist. Ct., N. D. TIL, 1951, No. 50,068

Rowe v. The Housing Authority of the City of Little Rock,

et al., Supreme Court of Arkansas, 220 Ark. 698, 249 S.W.

2d 551 (1952)

Schenck v. City of Pittsburgh, et al., Supreme Court of

Pennsylvania, 364 Pa, 31, 70 A. 2d 612 (1950)

Schneider v. District of Columbia, 117 F. Supp. 705

State ex rel. Bruestle v. Rich, Mayor, et al., Supreme Court .

of Ohio, 159 Ohio St. 18, 110 N.E. 2d 778 (1953)

State of Ohio ex rel. Bryant v. Akron Metropolitan Park

District, 281 U.S, 74

iv TasLz or AuTHoRITIEs CrTzD

Pages

The Nashville Housing Authority v. City of Nashville, et al.,

Supreme Court of Tennessee, 192 Tenn. 103, 237 S.W. 2d

U. S. v. Carolene Products Co., 304 U.S, 144

U. S. ex rel. Tenn. Valley Authority v. Welch, 327 U.S. 546 12

Utley v. City of St. Petersburg, 292 U.S. 106

Weaver v. Palmer Bros. Co., 270 U.S. 402

Wright v. Jordan, 192 Cal. 704, 221 Pac. 915

Statutes

California Community Redevelopment Law (Health and

Safety Code, Part I, Division 24, Sections 33000-33954) ..

Housing Act of 1949, Title I (P.L. 171, 81st Congress,

42 U.S.C. §1451 et seq.)

Constitutions

In the Supreme Court

OF THE

Rnited States

OcToBER TERM, 1953

No. 778

FLORENCE VAN HorF and Victor Bera,

Petitioners,

vs.

REDEVELOPMENT AGENCY OF THE CrTy AND

County or San Francisco, a public

body, corporate and politic, and THE

Crry anp County or SAN FRANCISCO,

a municipal corporation,

Respondents.

—-

RESPONDENTS’ BRIEF IN ANSWER TO

PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT

OF APPEAL OF THE STATE OF CALIFORNIA.

To the Honorable Earl Warren, Chief Justice of the

United States, and to the Honorable Associate

Justices of the Supreme Court of the United

States:

QUESTIONS PRESENTED.

Basically the petitioners have presented only three

questions.

Is the California Community Redevelopment Law

(Health and Safety Code Part I, Division 24, Sections

33000-33954)* violative of the Fourteenth Amend-

ment?

II.

Did the reservation by the District Court of Appeal

of the State of California of factual issues to be

determined in a different proceeding deprive peti-

tioners of procedural due process in contravention of

the Fourteenth Amendment?

III.

Does the delegation of administrative fact finding

powers by the State Legislature to administrative

agencies valid under the State Constitution present

a federal question which will confer jurisdiction upon

this Court? — . ie

(ee

*Hereinafter referred to as the ‘‘Act’’.

JURISDICTION.

None of the issues presented raise substantial fed-

eral questions which would warrant review. by this

Court on certiorari. The third issue as stated above

presents no federal question.

STATEMENT OF THE CASE.

This litigation concerns the constitutionality of the

California Community Redevelopment Law.

Respondents (petitioners below) are the Redevelop-

ment Agency of the City and County of San Fran-

cisco, a public body, corporate and politic,’ and the

City and County of San Francisco, a municipal cor-

poration.’

The Agency has, pursuant to the Act, undertaken

a program for the elimination and redevelopment of

blighted areas of which the first two are the ones

which were considered in the proceedings below, one

being known as Western Addition Project and the

other as Diamond Heights Project.

All of the procedural steps required by the Act

were followed by the Agency. Specific findings as. to

the conditions of blight were made by the Agency,

the Board of Supervisors of the City and County and

the Planning Commission of the City and County.

Public hearings on the adoption of the tentative plans

Hereinafter referred to as the ‘‘Agency’’.

*Hereinafter referred to as the ‘‘City and County”.

for the Areas were held as required by the Act at

which hearings all persons (including the petitioners —

herein) were given opportunity to be heard and to

submit alternative plans.

Title I of the Housing Act of 1949-(P.L. 171, 81st

Congress, 42 U.S.C. §1451 et seq.) authorizes Federal

financial assistance to respondents to aid in this rede-

velopment. Pursuant to applications filed by the

Agency with the Housing and Home Finance Admin-

istrator, the Administrator has advanced to the

Agency $517,160.82, in addition to which sum the

City and County has provided $78,962 to the Agency.

On June 4, 1953, the Agency adopted a resolution

directing its chairman to execute on behalf of the

Agency a contract with the United States of America

for a loan of $16,022,000 and a capital grant of

$6,012,000 to aid in financing Western Addition Proj-

ect and a contract for the loan of $5,049,000 and

a capital grant of $334,000 to aid in financing Dia-

mond Heights Project, both of which contracts had

been approved by the Agency and Board of Super-

visors of the City and County. To satisfy the require-

ments of said contracts the City and County has

undertaken to provide local grants-in-aid of $8,279,600

for Western Addition and $2,711,000 for Diamond —

Heights. The contracts had been executed by the

Administrator; however, the Chairman of the <— ;

refused - execute said contracts. :

It should be noted that petitioners make no claim

of any deprivation of rights under the Housing Act

of 1949, supra, or any other federal statute.

Respondents sought and secured mandamus in the

State Court commanding the Chairman of the Agency

to execute the contracts. The Chairman, although

a respondent below, has not petitioned this Court for

certiorari.

Accompanying the petition for writ of mandate

(and part of the Record before this Court) were

exhibits containing the various resolutions and ordi-

nances of the Board of Supervisors of the City and

County, tentative plans of the projects, reports and

photographs of the areas and other data.

The interveners (petitioners herein) were granted

leave to intervene.

A complete summary of the facts and record is

contained in the Opinion of the Court below. (Appen-

dix B Petition for Writ of Certiorari, pages 2 to 9

inclusive. )

The District Court of Appeal denied a petition for

rehearing (123 Adv. Cal. App. 355), and a petition

for hearing was denied by the Supreme Court of

California (R. p. 605).

At no place was it charged in the complaint in inter-

vention as is now contended (Petition, page 9), that

the findings of respondents (petitioners below) or any

administrative agency were made fraudulently, arbi-

trarily or capriciously.

Nowhere in the record is there any evidence as

stated by petitioners herein (Petition, page 7) that z

the respondents propose to take vacant land under —

the power of eminent domain and sell it to private

builders for expensive ‘‘view’’ homes.and apartments.

After the petition for hearing was denied by the

Supreme Court of California, the District Court

stayed the execution of the writ of mandate insofar

as it applied to the Diamond Heights Project in order

to give interveners (petitioners herein) an opportu-

nity to file a petition for Writ of Certiorari with this

Court.

The Western Addition Project concerns a blighted

slum area and no review has been sought of that por-

tion of the Court’s decision involving this project.

Diamond Heights is a blighted area. It consists of

325 acres. Much of the area was subdivided in 1863

and 1864; only 15 per cert of the area is occupied or

used; 4 per cent is in improved boundary streets; 5 —

per cent playgrounds; less than 6 per cent interior

streets and dwellings. Such unuse and lack of devel-

opment is due to lots of irregular form and shape

having been laid out without regard to the contours —

and other physical characteristics of the ground such —

as cliffs, steep gradings and outcroppings of rock;

more than 500 parcels are in separate ownership

which makes it impossible to effectively assemble the

land by private means without public assistance and —

exercise of the power of eminent domain; there is fe:

wasteful street design, unsuited and unadapted to ~

the topography of the area; mapped streets of usable

grade are connected with mapped streets of unusable

grade, so steep as to render impossible the construc-

tion of usable streets; one third of said streets are

too steep to be usable; 66 acres of such mapped streets

remain unpaved and undeveloped, there being only

1.4 acres of paved streets. The major portion of the

area is unserved by utilities of any kind. Existing

public ~pen spaces would be inadequate to serve the

area if built up. Approximately 85 per cent of the

area is vacant and undeveloped; 115 acres are in

private ownership, of which only 17.8 acres are im-

proved with houses, the remainder of the private

ownership improvements consisting of truck yards,

deteriorating sheds and two quarries. As a result of

said faulty planning there is an economic dislocation

and disuse of the area; a subdivision of lots into

irregular form and shape and inadequate size for

proper use and development; a layout of lots in dis-

regard of the contours and other physical character-

istics of the ground and surrounding conditions; non-

existence of adequate streets and utilities in the area.

The area is characterized by the growing or total

lack of proper utilization resulting in stagnant and

unproductive condition of land potentially useful and

available for contributing to the publi¢ health, safety

and general welfare. The blighted condition is ag-

gravated by the shortage of useful land in the city

for residential development to alleviate the acute

housing shortage and tends to render the lands un-

marketable and thereby to force an abnormal pattern

of residential growth. This is the area referred to.in_

the opinion of the Court below as ‘‘deteriorated”

areas. (Petition for Writ of Certiorari, Appendix B,

pages 4-6. See also photographs constituting Exhibits

E, F, G and H, Record pages 287-293.)

1, THE AOT I8 NOT VIOLATIVE OF THE

POURTEENTH AMENDMENT.

The ultimate basic question presented is:

“Is redevelopment (as defined in the Com-

munity Redevelopment Law) a public use and

purpose 1”

Petitioner recognizes (Pet. pp. 5, 11) that this Court

has never condemned as a violation of the Fourteenth

Amendment a taking upheld by the State court as

a taking for public uses in conformity with its law.

_ Kaskel v. Impellitteri, 306 N.Y. 73, 115 N.E.

2d 659, certiorari denied, ....U.S. —,

98 L. Fd. (Advance p. 512);

Fallbrook Irrigation Dist. v. Bradley, 164 US.

113;....:

Clark v. Nash, 198 U.S. 361;

Rindge Co. v. Los Angeles, 262 U.S. 700;

Hairston v. Danville & Western Ry., 208 US.

The decision of the Court below upholding the con-—

stitatinnslity’ of the law is° well considered, well.

and authority of the law throughout the United States

and is consistent with decisions of this Court.

The line of authorities holding that redevelopment

statutes are constitutional is unbroken, except in

Florida and Georgia, which decisions are barren of

any legal reasoning in support of their conclusions

and which the Court below found to be not even

persuasive authority. The following citations uphold

the constitutionality of redevelopment statutes:

Kaskel v. Impellitteri, New York Court of

Appeals, 306 N.Y. 73, 115 N.E. 2d 659 (1953),

certiorari denied, .... U.S. .... 98 L. Ed.

(Advance p. 512);

People ex rel. John Gutknecht v. City of Chi-

cago, et al., Supreme Court of Illinois, 414

Til. 582, 111 N.E. 2d 626 (1953) ;

Oliver v. City of Clairton, Supreme Court of

Pennsylvania, 374 Pa. 333, 98 A. 2d 47

(1953) ;

Opinion of the Justices, 254 Ala. 343, 48 So.

2d 757 (1950) ;

Rowe v. The Housing Authority of the City

of Little Rock, et al., Supreme Court of

Arkansas, 220 Ark. 698, 249 S.W. 2d 551

(1952) ;

John F. Zurn v. The City of Chicago, et al.,

Supreme Court of [linois, 389 Til. 114, 59

N.E. 2d 18 (1945);

People ex rel. William J. Tuohy v. City of

Chicago, et al., Supreme Court of Illinois,

394 Ill. 477, 68 N.E. 2d 761 (1946);

People ex rel. Tuohy v. City of Chicago, et al.,

Supreme Court of Illinois, 399 Tl. 551, 78

N.E. 2d 285 (1948) ;

Chicago Land Clearance Commission v. Inez

White, et al., Supreme Court of Illinois, 411

Til. 310, 104 N.E. 2d 236 (1952);

In the Matter of Slum Clearance in the City

of Detroit—Hastings, Gratiot, De Quindre

and Mullett Streets, Supreme Court of Mich-

igan, 331 Mich. 714, 50 N.W. 2d 340 (1951);

State ex rel. Bruestle v. Rich, Mayor, et al.,

Supreme Court of Ohio, 159 Ohio St. 13, 110

N.E. 2d 778 (1953) ;

Foeller v. Housing Authority of Portland and

City of Portland, Supreme Court of Oregon,

198 Or. 205, 256 Pac. 2d 752 (1953);

Martha Belovsky v. Redevelopment Authority

of the City of Philadelphia, et al., Supreme

Court of Pennsylvania, 357 Pa. 329, 54 A. 2d

277, 172 A.L.R. 953 (1947) ;

Schenck v. City of Pittsburgh, et al., Supreme

Court of Pennsylvania, 364 Pa. 31, 70 A. 2d

612 (1950) ;

Jayne L. Burt v. City of Pittsburgh, et al.,

judgment affirmed by the Supreme Court, —

$40. U.S. 802 (1950) (memorandum opinion);

Opinion to the Governor, Supreme Court of |

Rhode Island, 76 R.I. 249, 69 A. 2d 531

0949) 5° 4

Ajootian v. Providence Rededooeu

Agency of the City of Providence, et al.

Supreme Court of Rhode Island, 91 A. 2d 21

(1952) ;

The Nashville Housing Authority v. City of

Nashville, et al., Supreme Court of Tennes-

see, 192 Tenn. 103, 237 S.W. 2d 946 (1951) ;

Schneider v. District of Columbia, 117 F. Supp.

705 ;

Gohld Realty Co. v. City of Hartford, March

1954, Supreme Court of Errors, Connecticut,

104 A. 2d 365.

See particularly People ex rel. Gutknecht v. City

of Chicago, supra, and Oliver v. City of Clairton,

supra, holding the redevelopment of blighted vacant

or open land to be constitutional.

The exercise of the right of eminent domain under

a redevelopment project, carried out pursuant to state

law, has been held by this Court not to be contrary

to the Fourteenth Amendment to the Federal Con-

stitution.

Burt v. City of Pittsburgh, 340 U.S. 802, 71 S.

Ct. 53, 95 L. Ed. 589.

Burt v. City of Pittsburgh, supra, was an appeal

from the United States District Court for the West-

ern District of Pennsylvania. The appeal was decided

by the Supreme Court of the United States tithout

opinion in the following language:

~ “Oetober 9th, 1950. Per Curiam: The motion to

affirm is granted and the judgment is affirmed.

United States ex rel. Tennessee Valley Authority

.v. Welch, 327 U.S. 546,”

The decision of the District Court in the Burt case

thus affirmed by this Court was not printed and

therefore not readily available. For the convenience

of the Court, said opinion is filed herewith marked

‘‘Appendix A.”’

See, also:

Robinette v. Campbell, 342 U.S. 940 [72 S. Ct.

569, 96 L. Ed. 699].

This Court has consistently recognized the broad

concept of ‘public use’’ and ‘‘public purpose.”’

Fallbrook Irrigation Dist. v. Bradley, 164 U.S.

112; ; 3

U. S. ex rel. Tenn. Valley ‘Authority v. Welch,

327 U.S. 546;

People of Puerto Rico v. Eastern Sugar Associ- |

ates, 156 Fed. 2d 316, certiorari denied, 329

U.S. at 772. BO

Redevelopment statutes have been adopted. by

thirty-four states and four territories of the United —

States. The statutes in thirty jurisdictions contain —

provisions for the redevelopment, of blighted vacant

or open land. Title I of the Housing Act of 1949 se ‘

contains similar provisions. es

The legislature has defined what is meant by the

evil of blight and has provided the means for its elim-

ination. The legislature’s determination that blight,

as so defined, is an evil and should in the public

be eliminated, is not arbitrary, capricious

or ‘Such determination involves con

siderations of public policy concerning which

able minds may differ. Under these circumstances,

the courts are without constitutional authority to

substitute their judgment for that of the legislature,

Cities Service Gas Co. v. Peerless Oil & Gas

Co., 340 U.S. 179;

Olsen v. Nebraska, 313 U.S. 236, 247;

U. S. v. Carolene Products Co., 304 U.S. 144,

154;

Block v. Hirsch, 256 U.S. 135, 154;

Weaver v. Palmer Bros. Co., 270 U.S. 402, 410.

DID THE RESERVATION BY THE DISTRIOT COURT OF AP-

PEAL OF THE STATE OF CALIFORNIA OF FACTUAL ISSUES

TO BE DETERMINED IN A DIFFERENT PROCEEDING DE-

PRIVE PETITIONERS OF PROCEDURAL DUE PROCESS IN

CONTRAVENTION OF THE FOURTEENTH AMENDMENT?

Petitioners (interveners below) were not denied

procedural due process by the Court’s striking a por-

tion of the complaint in intervention and restricting

its decision to the constitutional questions involved.

The court below had the right to determine only

the constitutional questions presented and to leave

the decision of factual issues, if any, to a. tribunal

paee: sehanteds int “eeeened x ne ame Hee

such issues.

Boskowita v. Thompson, 144 Gal. 724 [78 Pac.

290];

Wright v. Jordan, 192 Cal. 704 [221 Pac. 915];

La Mesa ete. Irr. Dist. v. Halley, 195 Cal. 739

.», [235 Pac. 999];

Rescue Army v. Municipal Court, 331 U.S, 549.

Petitioners are not without remedy. They can

(under the decision of the Court below) attack the

findings and actions of respondents (petitioners be-

low) in the proper forum. This is sufficient to assure

procedural due process.

Utley v. City of St. Petersburg, 292 U.S. 106,

See: ;

Robinette v. Chicago Land Clearance Commis-

sion, U. S. Dist. Ct., N. D. Tl, 1951, No.

50,068 (Memorandum Order and Opinion,

mandamus denied by this Court in Robinette

v. Campbell, 342 U.S. 940),

wherein it is stated: 3

“In regard to plaintiffs’ initial contention, i.e,

that they should have been afforded notice, op-

portunity to be heard and judicial review of the

finding by the administrative agency that the area _

is blighted and requires redevelopment, it should —

be noted that such administrative action is merely —

a preliminary step in the process of exercising

the power of eminent domain. No property is

taken in the proceeding, nor are the property

rights of the landowners affected in any tt Oe |

The steps required to be taken precedent to th

right to exercise of the power of eminent do

are legislative questions. The question of

such steps have actually been taken is judi ial, ke

Further, in any condemnation suit instituted by

the administrative agency, the trial eourt ¢

determine whether these conditions precedent ‘

: wari awed stable sme s

| therefore, in the suit in which it.

sought to acquire property by eminent dc m

ee ia ee Pe et mes

gives to the property owner the right and the op-

portunity to be heard on all questions on which

he is entitled to a hearing and fulfills all the re-

quirements of due process of law. Zurn v. City

of Chicago, 1945, 389 Ill. 114. This view is con-

firmed by the United States Supreme Court in

Rindge Co. v. Los Angeles, 262 U.S. 700, 709