State ex rel. West Virginia Housing Development Fund v. Copenhaver

• Decision Date: 09 December 1969
• Docket Number: No. 12882,12882
• Citation: 153 W.Va. 636,171 S.E.2d 545
• Court: West Virginia Supreme Court
• Parties: The STATE of West Virginia ex rel., the WEST VIRGINIA HOUSING DEVELOPMENT FUND, a Public Corporation of the State of West Virginia v. John T. COPENHAVER, Jr., as Chairman of the Board of Directors of the WestVirginia Housing Development Fund, a Public Corporation of the State of WestVirginia.

Page 545

171 S.E.2d 545

153 W.Va. 636

The STATE of West Virginia ex rel., the WEST VIRGINIA HOUSING DEVELOPMENT FUND, a Public Corporation of the State of West Virginia v. John T. COPENHAVER, Jr., as Chairman of the Board of Directors of the WestVirginia Housing Development Fund, a Public Corporation of the State of WestVirginia.

No. 12882.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 18, 1969.

Decided Dec. 9, 1969.

Syllabus by the Court

1. 'Mandamus lies to require the discharge by a public officer of a nondiscretionary duty.' Point 3 Syllabus, State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W.Va. 479 (153 S.E.2d 284).

2. In Section 1 of Article XI of the Constitution of West Virginia, the provision that no corporation shall be created by special law applies only to private corporations and not to public corporations created for public purposes.

3. 'In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.' Point 1 Syllabus, State ex rel. Appalachian Power Company v. Gainer, 149 W.Va. 740 (143 S.E.2d 351).

4. A fact once determined by the legislature, and made the basis of a legislative act, is not thereafter open to judicial investigation.

5. 'The delegation by the legislature of broad discretionary powers to an administrative body, accompanied by fitting standards for their exercise, is not of itself unconstitutional.' Point 8 Syllabus, Chapman v. Huntington, West Virginia, Housing Authority, 121 W.Va. 319 (3 S.E.2d 502).

6. The West Virginia Housing Development Fund Act, constituting Chapter 5, Acts of the Legislature, Second Extraordinary Session, 1968, as amended by Chapter 5, Acts of the Legislature, First Extraordinary Session, 1969, is not violative of Section 1 of Article XI, Section 1 of Article VI, Section 6 of Article X, or Section 1 of Article X of the Constitution of West Virginia.

Jackson, Kelly, Holt & O'Farrell, James K. Brown, John R. Lukens, Charleston Mudge, Rose, Guthrie & Alexander, Robert E. Ferdon, John F. Kelly, New York City, for relator.

Stone, Bowles, Kauffelt & McDavid, Paul N. Bowles, Charles M. Love, III, Charleston, for respondent.

CALHOUN, Judge:

In this mandamus proceeding instituted in this Court pursuant to its original jurisdiction in cases of that character, The West Virginia Housing Development Fund, a public corporation, which hereafter in this opinion may be referred to merely as the Fund or as the petitioner, seeks to require the respondent, John T. Copenhaver, Jr., as chairman of the board of directors of the Fund, to execute in behalf of the Fund certain contracts in writing. The case was submitted to this Court for decision upon the mandamus petition, together with various exhibits attached to and made a part of the petition; upon an answer and a demurrer to the petition filed by and in behalf of the respondent; and upon briefs in writing and oral argument of counsel for the respective parties.

The case involves no disputed question of fact. The demurrer and answer present certain constitutional questions for decision, which constitutional questions will be stated hereafter in this opinion.

It is conceded that, if the constitutional questions are decided adversely to the respondent, he has a mandatory, nondiscretionary duty to execute the contracts in question and that, under prior decisions of this Court, including State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W.Va. 479, 153 S.E.2d 284, mandamus is a proper proceeding by which to present the case to this Court for decision.

Chapter 5 of the Acts of the Legislature, Second Extraordinary Session, 1968, as amended by Chapter 5, Acts of the Legislature, First Extraordinary Session, 1969, amended Chapter 31, Code, 1931, as amended, by adding thereto Article 18, to be known as The West Virginia Housing Development Fund Act, which hereafter in this opinion may be referred to merely as the Act, by which there was created and established a governmental instrumentality of this state to be known as The West Virginia Housing Development Fund, the petitioner in this case, 'to serve a public corporate purpose and to act for the public benefit and as a governmental instrumentality of the State of West Virginia, to act on behalf of the state and its people in improving and otherwise promoting their health, welfare and prosperity.' The basic purpose of the creation of the Fund is stated more specifically in Section 6 of the Act as follows:

(1) To make or participate in the making of federally insured construction loans to sponsors of land development for residential housing for occupancy by persons or families of low and moderate income or residential housing for occupancy by persons or families of low and moderate income who are eligible or potentially eligible for federally insured mortgages or federal mortgages. Such loans shall be made only upon determination by the housing development fund that construction loans are not otherwise available, wholly or in part, from private lenders upon reasonably equivalent terms and conditions;

(2) To make temporary loans, with or without interest, but with such security for repayment as the housing development fund determines reasonably necessary and practicable, from the operating loan fund, if created, established, organized and operated in accordance with the provisions of section nineteen of this article, to defray development costs to sponsors of land development for residential housing for occupancy by persons and families of low and moderate income or residential housing construction for occupancy by persons and families of low and moderate income who are eligible or potentially eligible for federally insured construction loans, federally insured mortgages or federal mortgages;

(18) To borrow money to carry out and effectuate its corporate purpose and to issue its negotiable bonds or notes as evidence of any such borrowing in such principal amounts and upon such terms as shall be necessary to provide sufficient funds for achieving its corporate purpose, except that no negotiable bonds or notes shall be issued to mature more than ten years from date of issuance, and except that the amount borrowed and evidenced by the issuance of its negotiable bonds shall not exceed the amount reasonably estimated at the time of the issuance of such negotiable bonds to be required for the purpose of making federally insured construction loans for a period of two years;

(19) To issue renewal notes, to issue bonds to pay notes and, whenever it deems refunding expedient, to refund any bonds by the issuance of new bonds, whether the bonds to be refunded have or have not matured except that no such renewal notes or refunding bonds shall be issued to mature more than ten years from date of issuance;

(20) To apply the proceeds from the sale of renewal notes or refunding bonds to the purchase, redemption, or payment of the notes or bonds to be refunded;

(21) To provide technical services to assist in the planning, processing, design, construction or rehabilitation of residential housing for occupancy by persons and families of low and moderate income or land development for residential housing for occupancy by persons and families of low and moderate income;

(22) To provide consultative project assistance services for residential housing for occupancy by persons and families of low and moderate income and for land development for residential housing for occupancy by persons and families of low and moderate income, and for the residents thereof with respect to management, training and social services;

(24) To participate in the making of or to make loans to qualified federally approved mortgagees and in connection therewith to take as collateral security, invest in, purchase, acquire, sell or participate in the sale of, or take assignments of, notes and mortgages evidencing loans for the construction, rehabilitation, purchase, or refinancing of housing for persons and families of low and moderate income in this State: Provided, that the fund shall obtain such written assurances as shall be satisfactory to it that the proceeds of such loans will be used, as nearly as practicable, for investment in federally insured construction loans for low and moderate income housing in this State or that other moneys in an amount approximately equal to such proceeds shall be committed and used for such purpose.

The Act provides that the Fund shall be governed by a board of directors consisting of eleven members, four of whom shall be the attorney general, the secretary of state, the state treasurer and the commissioner of commerce, as public directors; and seven additional members to be chosen from the general public, as private directors, appointed by the governor with the advice and consent of the senate. The chairman of the board of directors shall be designated by the governor from among the private directors appointed. John T. Copenhaver, Jr., the respondent in this mandamus proceeding, has been duly designated by the governor as chairman of the board. The Act further provides that six members of the board of directors shall constitute a quorum and no action shall be taken by the board except upon the affirmative vote of at least six of the directors; that the...