State ex rel. Warren v. Nusbaum
| Decision Date | 29 June 1973 |
| Docket Number | Nos. S,s. S |
| Citation | 59 Wis.2d 391,208 N.W.2d 780 |
| Parties | STATE ex rel. Robert W. WARREN, Atty. Gen., Petitioner, v. Joe E. NUSBAUM, Secretary of Administration, Respondent. STATE ex rel. WISCONSIN HOUSING FINANCE AUTHORITY, Petitioner, v. Joe E. NUSBAUM, Secy. of Administration et al., Respondents. tate 218, 219. |
| Court | Wisconsin Supreme Court |
Robert W. Warren, Atty. Gen., Steven M. Schur, Asst. Atty. Gen., Madison, Foley & Lardner, William J. Kiernan, Jr., James O. Huber, Richard D. George, Milwaukee, for petitioners.
Godfrey & Kahn, Milwaukee, Joseph M. Bernstein and George F. Roth, Milwaukee, of counsel, for Joe E. Nusbaum.
Quarles, Herriott, Clemons, Teschner & Noelke, Milwaukee, Laurence C. Hammond, Jr., Robert H. Diaz, Jr., W. Stuart Parsons, Stephen E. Richman, Milwaukee, of counsel, for Blyth Eastman Dillon & Co.
Petitioners seek a determination that the appropriation authorized by ch. 287, secs. 2, 3, Laws of 1971 (sec. 20.135, Stats.), is not in conflict with any provision of the constitution of the State of Wisconsin; that respondent-secretary may legally issue the requested voucher for the $250,000 appropriated to the Authority by ch. 287, sec. 2, 3, Laws of 1971; that the Authority is legally created and existing pursuant to ch. 287, Laws of 1971 (ch. 234, Stats.); that the provisions of ch. 287, Laws of 1971, are not in violation of any provision of the Wisconsin or United States Constitutions; that the bonds issued by the Authority are valid and enforceable obligations of the Authority; that the purposes to which the proceeds of the sale of bonds may be applied are lawful purposes; and that the Authority has fulfilled those conditions precedent upon which respondent, Blyth Eastman Dillon, has based its refusal to perform under its offer to purchase.
The Authority consists of the secretary of local affairs and development and six public members appointed by the governor by and with the advice and consent of the senate. At least one such public member shall be a person recommended by the commissioner of savings and loan, at least one shall be recommended by the commissioner of banking, and at least one shall be recommended by the executive director of the investment board. In addition, the chairman of the assembly committee on municipalities and the chairman of the senate committee on housing and urban development shall serve as ex-officio members of the Authority. A member of the Authority shall receive no compensation for his services but shall be reimbursed for necessary expenses. 1 The Authority shall employ an executive director, legal and technical experts, and such other officers, agents and employees as it may require, and shall determine their qualifications, duties, and compensation. The Authority may delegate to its agents or employees any of its powers or duties. 2
The general powers conferred upon the Authority by ch. 234, Stats., are enumerated in sec. 234.03. The Authority is empowered to employ all the powers 'necessary or convenient' to implement the purposes of ch. 234 including the power to sue and be sued, the power to issue notes and bonds, the power to study, analyze and research housing needs within the state, and the power to disseminate the results to the public and to inform the governor and legislature. The Authority may encourage research and demonstrate techniques and methods for increasing the supply of housing; may cooperate with other governmental agencies, sponsors and local authorities; may encourage community organizations to assist in initiating housing projects; and may provide technical assistance in the development of such projects. Sec. 234.03 further provides that the Authority shall have the power:
'(11) To collect fees and charges on mortgage loans for the purpose of paying all or a portion of authority costs as the authority determines are reasonable and as approved by the authority.
'(12) To set standards for housing projects which receive loans under this chapter and to provide for inspections to determine compliance with such standards.
'(13) To purchase and enter into commitments for the purchase of mortgages and securities if the authority shall first determine that the proceeds of the sale of such mortgages and securities to the authority will be utilized for the purpose of residential housing for occupancy by persons of families of low and moderate income and to enter into agreements with eligible sponsors, mortgagors or issuers of securities for the purpose of regulating the planning, development and management of housing projects financed in whole or in part by the proceeds of the mortgages or securities purchased by the authority.
'(14) To sell mortgages and security interests at public or private sale, to modify or alter mortgages and security interests, to foreclose on any such mortgage or security interest or commence any action to protect or enforce any right conferred upon it by any law, mortgage, security agreement, contract or other agreement, and to bid for and purchase property which was the subject of such mortgage or security interest, at any foreclosure or at any other sale, to acquire and to take possession of any such property; and in such event the authority may complete, administer, pay the principal and interest on any obligations incurred in connection with such property, dispose of and otherwise deal with, such property, in such manner as may be necessary or desirable to protect the interests of the authority therein.
'(15) To acquire or contract to acquire from any person by grant, purchase or otherwise, leaseholds, real or personal property or any interest therein, only when the authority finds that lower moderate-income housing cannot be developed privately without an acquisition by the authority, or when the authority acquires property by reason of default by an eligible sponsor; to own, hold, clear, improve and rehabilitate and to sell, assign, exchange, transfer, convey, lease, mortgage or otherwise dispose of or encumber the same. Nothing in this chapter shall be deemed to impede the operation and effect of local zoning building and housing ordinances or ordinances relating to subdivision control, land development, fire prevention or other ordinances having to do with housing or housing development.
'(16) To lease real or personal property and to accept federal funds for and participate in programs of leased housing pursuant to section 10 or 23 of the United States housing act of 1937, as now or hereafter amended by the housing and urban development act of 1965 or other amendments.
'(17) To procure insurance against any loss in connection with its property and other assets and to procure insurance on its debt obligations.
'(18) To invest any funds held in reserve or sinking funds or any moneys not required for immediate use or disbursement at the discretion of the authority in such investments as may be lawful for fiduciaries in the state, if at least 50% of any funds held in any reserve or sinking fund be invested in obligations of the state or of the United States or agencies or instrumentalities of the United States or obligations, the principal and interest of which are guaranteed by the United States or agencies or instrumentalities of the United States.
'(19) To consent, whenever it deems it necessary or desirable in the fulfillment of its corporate purpose, to the modification of the rate of interest, time of payment or any instalment of principal or interest, or any other term, of any mortgage loan, mortgage loan commitment, construction loan, temporary loan, contract or agreement of any kind to which the authority is a party.
'(20) To adopt such rules and set such standards as are necessary to effectuate its corporate purpose with respect to mortgage lending, construction lending and temporary lending.'
Sec. 234.04, Stats., provides for loans to eligible sponsors of housing projects and to persons and families of low and moderate income. 3 The Authority may make or participate in the making of construction loans to eligible sponsors of housing projects for the construction or rehabilitation of housing for persons and families of low and moderate income, and may make or participate in the making and entering into commitments for the making of long-term mortgage loans to eligible sponsors of housing projects for occupancy by persons and families of low and moderate income or for the making of long-term mortgage loans to persons and families of low and moderate income. Such loans may be made only upon the determination by the Authority that construction loans or long-term mortgage loans are not otherwise available from private lenders upon reasonably equivalent terms and conditions. The Authority may employ, for such compensation as it determines, the services of any savings and loan association or banking institution in connection with any such long-term mortgage loan. The manner of security, interest rates, and repayment shall be determined by the Authority.
Sec. 234.08, Stats., provides:
'. . . (1) The authority may issue its negotiable notes and bonds in such principal amount, as, in the opinion of the authority, is necessary to provide sufficient funds for achieving its corporate purposes, including the purchase of certain mortgages and securities and the making of secured loans for low-and moderate-income housing, for the rehabilitation of existing structures and for the construction of facilities appurtenant thereto as provided in this chapter; for the payment of interest on notes and bonds of the authority during construction; for the establishment of reserves to secure such notes and bonds; for the provision of moneys for the housing development fund in order to make temporary loans to sponsors of housing projects as provided in this chapter; and for all other expenditures of the authority incident to and necessary or convenient to carry out its...
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