Opinion to the Governor, 73-214-M

• Decision Date: 08 August 1973
• Docket Number: No. 73-214-M,73-214-M
• Citation: 308 A.2d 809,112 R.I. 151
• Parties: OPINION TO THE GOVERNOR. P.
• Court: Rhode Island Supreme Court

Page 809

308 A.2d 809

112 R.I. 151

OPINION TO THE GOVERNOR.

No. 73-214-M.P.

Supreme Court of Rhode Island.

Aug. 8, 1973.

Tillinghast, Collins & Graham, James J. Skeffington, Edwin K. Hall, James M. Jerue, Executive Counsel to the Governor, Providence, for the Governor.

To His Excellency Philip W. Noel Governor of the State of Rhode Island and Providence Plantations

The undersigned, in fulfillment of their constitutional obligation to advise you on questions of law affecting legislation that has been enacted into law, forward this communication to you as a reply to the questions you posed about an Act passed by the General Assembly at its January, 1973 session. The Act now known as '73-H 6104, Substitute A,' created a public corporate entity designated as the Rhode Island Housing Mortgage Finance Corporation. Your inquiries manifest a concern as to (1) whether the Act serves a public purpose; (2) whether its funding provisions constitute an unconstitutional incurment of a debt or pledge of the state's credit; and (3) whether there has been an unlawful delegation of the legislative power to the corporation.

In seeking to resolve the 'public purpose' portion of our answer, we shall briefly summarize the legislation. The Act is replete with details as to the purposes of the new corporation, its organizational setup and its funding. In order to carry out its corporate purpose, the corporation is authorized to accept federal funds and other assistance, to issue revenue bonds or notes, and to purchase and sell first mortgages and notes. The entire thrust of the complex statutory provisions is to increase in a particular area of building constrution the availability of mortgage money at favorable interest rates. The corporation's attractive interest rate will be achieved because the corporation will obtain borrowed money on a favorable basis through the issuance of tax free bonds or notes and pass the savings on to its borrower, who would be charged higher interest rates in the general mortgage market.

Section 2 contains a positive declaration that there exists within Rhode Island a shortgage of safe, sanitary residential housing serving the needs of those whose family income falls within the low to moderate income bracket. There is also found in this section an observation that the health care facilities located within the state are inadequate to meet the demands of modern medical care. The General Assembly reports that these shortcomings cannot be cured by private enterprise, and that the solution lies in the creation of the Rhode Island Housing and Mortgage Finance Corporation, whose goal will be the stimulation of the construction and rehabilitation of residential housing and health care facilities through the use of public funds.

Health care facilities are defined as:

"Health care facilities' means real property (or a lease of the fee of real property) located in the State and improved by buildings, structures or other improvements, including fixtures and equipment, constituting a facility providing services by or under the supervision of a physician or, in the case of a dental clinic or dental dispensary, of a dentist, for the prevention, diagnosis or treatment of a human disease, pain, injury, deformity or physical condition, or constituting a facility providing to occupants, nursing care to sick, invalid, infirm, disabled or convalescent persons, in addition to lodging and board or health-related service or providing nursing care and health-related service to persons who are not occupants of the facilities, or unimproved if the proceeds of an eligible mortgage shall be used for the purpose of erecting such buildings, structures or other improvements.'

The Act sets forth criteria to be used in determining the persons or families whose income can be classified as 'low' or 'moderate.'

When considering the issue of the public purpose of the Act, we think it appropriate that we repeat here what the court said in Romeo v. Cranston Redevelopment Agency, 105 R.I. 651, 254 A.2d 426 (1969), when it attempted to describe the requisite 'public use' that permits acquisition of private property by eminent domain:

'Today * * * it is our belief that a public use may not be given a rigid, unbending, absolute definition. In the everchanging conditions of our modern society, new advances in the fields of sciences, new concepts in the scope and function of government and other circumstances make it clear that the former concept as to what is a public use has undergone a great change. Views as to what constitutes a public use necessarily vary with the changing conceptions of the scope and functions of government so that today there are familiar examples of such use which years ago would be unheard of. As governmental activities and services increased with the growing demands of society, the concept of 'public use' has broadened in proportion thereto. The modern trend of authority is to expand and liberally construe the meaning of 'public use. " Id. at 658, 254 A.2d at 431.

What was said about a 'public use' can also be said of a 'public purpose.' There is no fixed static definition of 'public purpose.' It is a concept which expands with the march of time. It changes with the changing conditions of our society. What today is not a public purpose may to future generations yet unborn be unquestionably a public purpose. 'Public purpose' is a flexible phrase which expands to meet the needs of a complex society even though the need was unheard of when our state constitution was adopted in 1842.

In determining the presence of public purpose, we are cognizant that while legislative findings in this area are subject to review, such a determination is entitled to great deference by the judiciary. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954); Romeo v. Cranston Redevelopment Agency, supra; Narragansett Electric Lighting Co. v. Sabre, 50 R.I. 288, 146 A. 777 (1929). An act of the Legislature commands judicial approval if, on any reasonable view, the act is designed to protect the public health, safety and welfare. State ex rel. Colvin v. Lombardi, 104 R.I. 28, 241 A.2d 625 (1968). Furthermore, if the principal thrust and object of a given enactment is public in nature, its public purpose is not invalidated because there may be an incidental benefit to private interests. People ex rel. City of Salem v. McMackin, 53 Ill.2d 347, 291 N.E.2d 807 (1972); Whelan v. New Jersey Power & Light Co., 45 N.J. 237, 212 A.2d 136 (1965); Vermont Educational Buildings Financing Agency v. Mann, 127 Vt. 262, 247 A.2d 68 (1968); Clifford v. City of Cheyenne, 487 P.2d 1325 (Wyo.1971).

The participation of government with private enterprise in efforts to improve housing conditions has long been recognized as a proper use of the police power. The elimination of overcrowded, unsanitary and dangerous dwelling accommodations and the assisting in making available decent, safe and sanitary housing for people whose income would make such an acquisition impossible unquestionably serves a public purpose. Maine State Housing Authority v. Depositors Trust Co., Me., 278 A.2d 699 (1971); Massachusetts Housing Finance Agency v. New...