Chapman v. Housing Authority , 121 W. Va. 319 ( 1939 )

The majority opinion fails to state certain allegations in the amended bill, which seem to me very material, to-wit:

(a) That upon information and belief the council made no investigation of the needs for slum clearance or low cost housing in Huntington prior to the resolution of January 24, 1938, and that the finding in the resolution is not based upon fact.

(b) That during a building boom in Huntington in the years 1923 to 1925, such numbers of moderately priced dwellings were built, that since then and at this time there is an ample supply of houses with room space equivalent to that which would be provided by the units proposed to be constructed by the defendant authority, available to persons of the income class to whom the proposed units will be rented; that such dwellings have "modern plumbing, bathrooms, hot and cold running water, heat, and electric light wiring, and are in every sense of the terms safe, decent and sanitary houses"; that a recent survey shows 559 such vacant dwelling units in the city, 329 of which have space and rent for prices equivalent to the proposed units; and that the number of such vacant houses is rapidly increasing because a great number of new dwellings are now being constructed in the city through federal aid to homeowners.

Taking these allegations and others well pleaded which are recited in the majority opinion as true — and they should be so taken on demurrer — then there is no necessity for the proposed units, and the action of the city in regard thereto is arbitrarily and unwarranted. The power of courts to interfere in such case is recognized in Holswade v. Huntington, 96 W. Va. 124,122 S.E. 449; Bradentown v. State, 88 Fla. 381,102 So. 556, 557, 32 A.L.R. 1297; LeFeber v. West Allis,119 Wis. 608, 97 N.W. 203, 100 Am. St. Rep. 917; Chan Sing v. Astoria,79 Or. 411; 155 P. 378; and Mugler v. Kansas, 123 U.S. 623,661, 8 Sup. Ct. 273, 297, 31 L. Ed. 205, wherein the following unmistakable language is employed: "The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."

I would overrule the demurrer.