Button v. Day

158 S.E.2d 735, 208 Va. 494, 1968 Va. LEXIS 139
CourtSupreme Court of Virginia
DecidedJanuary 15, 1968
DocketRecord 6757
StatusPublished
Cited by13 cases

This text of 158 S.E.2d 735 (Button v. Day) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Button v. Day, 158 S.E.2d 735, 208 Va. 494, 1968 Va. LEXIS 139 (Va. 1968).

Opinions

Carrico, J.,

delivered the opinion of the court.

In this original .petition for a writ of mandamus, we are called upon [495]*495to decide the constitutionality of the Virginia Industrial Building Authority Act, enacted by the General Assembly at its 1966 session. (Acts of 1966, Chapter 689, p. 1172; Code, §§ 2.1-64.4 to 2.1-64.14.) The Act created the Virginia Industrial Building Authority with certain public and corporate powers specified therein.

The legislature appropriated to the Authority the sum of $2500 to defray miscellaneous expenses. The Comptroller of Virginia expressed doubt as to the constitutionality of the Act and stated that he would “refuse to honor vouchers from the Authority . . . until there has been a final adjudication by the Supreme Court of Appeals of Virginia” of the constitutional questions raised by him. This petition for mandamus followed. (Code, § 8-714.)

Code, § 2.1-64.5 states that because of critical unemployment problems in the State, there exists a need to stimulate and promote the economy of the Commonwealth by encouraging and assisting the location of new industries and the rehabilitation and expansion of. existing industries throughout the Commonwealth. The Code tion further recites that because of the inability of financial institutions to provide sufficient funds to finance desirable industrial projects, there exists a need to stimulate a larger flow of private investment funds from banks, insurance companies, and other financial institutions and sources into industrial projects in the State. The Act was adopted, therefore, the Code section concludes, “to encourage the making of loans for the purposes of furthering industrial expansion . . . and thereby promoting employment and improving” the general welfare of the inhabitants of the Commonwealth. Such purposes are declared to be “public purposes for which public funds may be spent.”

Code, § 2.1-64.7 creates the Authority as a political subdivision of the Commonwealth and states that in the exercise of the powers conferred upon it, the Authority shall be deemed and held to be performing essential governmental functions. The Code section further provides that the Authority shall be composed of seven members, including the State Treasurer, the Director of the State Division of Industrial Development and Planning, and five persons to be appointed by the Governor, subject to confirmation by the General Assembly.

Under Code, § 2.1-64.8, the Authority is authorized and empowered, among other things necessary to carry out the purposes of the Act, to acquire, purchase, manage, operate, hold, and dispose of [496]*496real and personal property; to accept gifts, loans, and grants for any of its purposes; and to do all things necessary to safeguard the loan guaranty fund. And, most crucially, the Authority is empowered to guarantee loans for industrial projects.

By Code, § 2.1-64.12, there is established a loan guaranty fund “to be known as the Virginia Industrial Building Guaranty Fund and to be used as a revolving fund for carrying out the purposes of this chapter.” The Code section provides that there shall be deposited into the guaranty fund all receipts of the Authority, including appropriations made by the Commonwealth. Against the fund, there shall be charged all expenses of the Authority, including operating expenses, and payments of principal, interest, and other charges in connection with a guaranteed loan which is in default.

Code, §§ 2.1-64.9, 2.1-64.10, and 2.1-64.11 prescribe the method by which a loan shall be guaranteed by the Authority. An industrial firm must make application in writing after it has secured a firm commitment for the loan sought to be guaranteed, such commitment to be for an amount equal to the full cost of the project, and has made adequate provision to obtain all machinery and equipment necessary to operate the project. The Authority then must hold such hearings or make such examination as it deems necessary to determine whether the public purposes of the Act will be accomplished by the guaranty. Upon such determination, the Authority may, under certain prescribed conditions, contract “to guarantee a loan not in excess of forty per centum of the cost of the industrial project.”

It is expressly provided that the Authority shall have no power to make direct loans for any industrial project.

The maker of each guaranteed loan is to be charged an annual premium by the Authority. The premium shall be not less than one-half percent and not more than two percent of the principal obligation outstanding on the anniversary date of the loan.

Code, § 2.1-64.13 provides that loan guaranties made under the provisions of the Act shall not be deemed to constitute a debt or a pledge of the faith or the credit of the Commonwealth or of any political subdivision thereof but shall be payable solely from the loan guaranty fund. All documents evidencing the guaranty of loans shall contain such a disclamatory statement.

Although the Comptroller has raised a number of constitutional objections to the Act, counsel for the litigants agree, and with their view we concur, that the crux of the case is the proper application of [497]*497the credit clause contained in § 185 of the Constitution of Virginia, which provides that “[n] either the credit of the State, nor of any county, city or town, shall be, directly or indirectly, under any device or pretense whatsoever, granted to or in aid of any person, association, or corporation.”

The question for decision, then, is whether the appropriation by the legislature of funds to the guaranty fund, pursuant to Code, § 2.1-64.12, combined with the guaranty by the Authority of loans for industrial projects based upon the strength of the guaranty fund, under the provisions of Code, § 2.1-64.8, constitutes a granting of the credit of the State to or in aid of any person, association, or corporation, in violation of § 185.

The Attorney General contends that the Act is free of credit-clause unconstitutionality because the animating purpose thereof is to stimulate the development and growth of industry, thus reducing unemployment and lessening the financial burden upon the State of public assistance and unemployment compensation programs. Such a purpose, the Attorney General argues, is public in nature, its performance constituting a proper governmental function inuring dominantly to the benefit of the State, with the benefit to any private interest being merely incidental. Under such circumstances, the Attorney General says, this court has not hesitated to hold that there has been no violation of the credit clause of § 185.

The Comptroller, on the other hand, while conceding that our prior decisions have established that stimulation of the development and growth of industry by the State is constitutionally permissible, contends that the avowed object of the Act is to enable private industrial projects to obtain credit upon the faith of State funds where ordinary sources have proven inadequate. Such a method of aiding industry, the Comptroller says, is forbidden by the credit clause of § 185 of the Constitution.

This court has frequently had occasion to interpret and apply the credit clause of § 185. Only one case, however, has involved the undertalung of a guaranty by one of the political subdivisions of the State. That was the case of Holston Corp. v. Wise County, 131 Va. 142, 109 S.E. 180.

In the Holston

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Button v. Day
158 S.E.2d 735 (Supreme Court of Virginia, 1968)

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Bluebook (online)
158 S.E.2d 735, 208 Va. 494, 1968 Va. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/button-v-day-va-1968.