APPEAL from the Circuit Court of Cook County; the Hon. HARRY
M. FISHER, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 18, 1958.
The State's Attorney of Cook County brought a quo warrantor action in the circuit court of Cook County against the Chicago Land Clearance Commission, challenging the validity of the 1955 amendments to the Blighted Areas Redevelopment Act of 1947. (Ill. Rev. Stat. 1955, chap. 67 1/2, par. 63 et seq.) It is charged in the complaint that the Commission acting under the authority of said amendments is expending public funds in making surveys and developing plans for open lands described as "blighted" to be developed for industrial use, or for other than residential use; and that the act, insofar as it purports to authorize a "Blighted Area Project" of this character, is unconstitutional and void. The circuit court dismissed the action on motion, finding the amendatory act to be constitutional. The plaintiff and individual intervenors in said cause seek a review in this court.
The validity of the amendatory act is challenged on three grounds: (1) It is a taking of private property for other than a public use; (2) it constitutes an unlawful delegation of legislative power; and (3) it is vague, indefinite and uncertain in its terms.
The original of the "Blighted Areas Redevelopment Act" of 1947 was upheld and its validity sustained in People ex rel. Tuohy v. City of Chicago, 399 Ill. 551, Chicago Land Clearance Commission v. White, 411 Ill. 310 (cert. denied, 344 U.S. 824), and Chicago Land Clearance Commission v. White, 1 Ill.2d 69. In 1949 certain amendments were made to the act so as to bring within the operation of the act areas known and designated as "Blighted Vacant Areas." These 1949 amendments provided that these areas should be developed for predominately residential use. This court in People ex rel. Gutknecht v. City of Chicago, 414 Ill. 600, held these amendments valid.
At the 1955 session of the Illinois General Assembly the sections of the act dealing with "blighted vacant areas" were further amended so as to authorize development of these areas for residential "or other use." It is with this action of the Illinois General Assembly that we are concerned here. It is to be noted that the definition or description of a blighted vacant area, as set forth in the amendments of 1949 was not changed by the 1955 amendments here in question, and was upheld by this court in People ex rel. Gutknecht v. City of Chicago, 414 Ill. 600. The 1955 amendments permit development of said areas for residential or other uses, subject to the proviso that only if the area is zoned for other than residential use and the Commission determines that residential development of the area is not feasible, and such determination is approved by the mayor, city council and the State Housing Board, other uses may be permitted. It is the words "other use" that cause the controversy here.
The first contention of the appellants is that the 1955 amendments authorize the taking of private property for other than a public use and are therefore unconstitutional. The definition of a blighted area redevelopment project, insofar as it defines the type of land authorized to be acquired, is the same after the 1955 amendments as it was before. The statute continues to read as it did after the amendments made to the Blighted Areas Redevelopment Act in 1949. Therein said areas were defined as follows: "(1) `Blighted Vacant Area Redevelopment Project' means a project involving (1) predominantly open platted urban or suburban land which because of obsolete platting, diversity of ownership, deterioration of structures or of site improvements, or taxes or special assessment delinquencies exceeding the fair value of the land, substantially impairs or arrests the sound growth of the community and which is to be developed for predominantly residential uses, * * *." Ill. Rev. Stat. 1949, chap. 67 1/2, par. 65(1).
The court in People ex rel. Gutknecht v. City of Chicago, 414 Ill. 600, held that the 1949 amendments were constitutional and in so doing used the following language on pp. 613-614 of said opinion: "Upon the authority of the Cremer, Zurn, and White cases, we hold that the Amendatory Act does not violate section 13 of article II of the constitution. The purpose and use to which the vacant blighted property is to be taken is both a public purpose and a public use, since the taking tends to alleviate a housing shortage, is an essential aid and adjunct to slum clearance, removes hazards to health, safety, welfare and morals of the community by developing the area, and eliminates factors impairing and arresting sound community growth."
In People ex rel. Gutknecht v. City of Chicago, 3 Ill.2d 539, the court cast aside the argument that the power of eminent domain could only be used to eliminate slum areas and not for the prevention of slums, by stating "we are aware of no constitutional principle which paralyzes the power of government to deal with an evil until it has reached its maximum development."
The appellants apparently agree with all the foregoing enunciations of this court, but say that the 1955 amendments are unconstitutional because the amendments here provide that after the acquisition of the vacant areas in question it may be developed for other than residential uses. They claim that in the Gutknecht case 414 Ill. 600) the acquisition of the areas was coupled with a housing development and therefore the acquisition and the housing development made it a public use. However, an examination of the 1955 amendments discloses that the amendments here provide primarily for the development of the area for residential purposes. It is only the one proviso in said amendments that permits a development for other uses. Said proviso only applies where areas to be acquired are zoned for other than residential use and the Commission determines that residential development of the area is not feasible and such determination is approved by the mayor, city council and State Housing Board.
This court and other courts have repeatedly held that the acquisition of a slum and blighted area and the removal of slum conditions is in and of itself a public purpose regardless of the use thereafter made of the property. Chicago Housing Authority v. Berkson, 415 Ill. 159; Zurn v. City of Chicago, 389 Ill. 114; People ex rel. Tuohy v. City of Chicago, 394 Ill. 477; Cremer v. Peoria Housing Authority, 399 Ill. 579.
The appellants apparently have no quarrel with any of these cases, which state that the public purpose is accomplished by the acquisition of the area and removal of the slum conditions and that the redevelopment of the area is purely incidental. They contend here, however, that in the case of a blighted area there is no change in the area until the redevelopment takes place and therefore that the development and not the acquisition of the area constitutes the public purpose, and that because the area may be developed for other than residential uses the public purpose fails.
In section 2 of the act, as it stands amended in 1955, it is declared as a matter of public policy by the General Assembly that blighted vacant areas, for the reasons set forth therein, are unmarketable and as a result impair the growth of the communities and are a blight thereon by preventing the construction of critically needed residential housing or other appropriate development. It is also declared that the existence of these areas constitutes a menace to the public health, safety, welfare and morals.
The appellants contend that after an area is acquired under the 1955 amendments it may never be developed. In this they are mistaken, for section 3(1) of the act provides that a blighted vacant area redevelopment project means a project involving "predominantly open platted urban or suburban land which * * * is to be developed for residential or other use." Section 19.1 of the act (Ill. Rev. Stat. 1957, chap. 67 1/2, par. 81a,) provides that no sale may be made by the Commission until such time as it has prepared and approved a development plan for the area, and which has been approved by the State Housing Board, and the governing body of the municipality in which the property is located. Section 19 requires assurance of such development by the purchaser and it further provides that if the real property has not been sold by the Commission in five years after it has acquired title to all the property in the area, it shall be sold for cash to the highest bidder, who shall ...