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

212 S.E.2d 724, 158 W. Va. 196, 1974 W. Va. LEXIS 278
CourtWest Virginia Supreme Court
DecidedNovember 26, 1974
DocketNo. 13468
StatusPublished
Cited by29 cases

This text of 212 S.E.2d 724 (State ex rel. West Virginia Housing Development Fund v. Waterhouse) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. West Virginia Housing Development Fund v. Waterhouse, 212 S.E.2d 724, 158 W. Va. 196, 1974 W. Va. LEXIS 278 (W. Va. 1974).

Opinions

Caplan, Chief Justice:

Invoking the original jurisdiction of this Court, a petitioner, The West Virginia Housing Development Fund, a public corporation, hereinafter sometimes referred to as the Housing Fund, seeks a writ of mandamus to compel the respondent, John Waterhouse, Chairman of the Board of Directors of the aforesaid Housing Development Fund, to execute on behalf of the Fund, certain agreements, mortgage finance bonds and Series C Notes. Although Mr. Waterhouse was authorized, empowered and directed by lawfully adopted resolutions of the members of the Board of Directors of the Fund to execute on behalf of said Fund the agreements and notes alluded to above, he has refused to do so. His refusal is premised on his contention that the 1973 Amendments to the Housing Development Fund Act cause the Act to be unconstitutional.

The Housing Development Fund was created by Chapter 5, Acts of the Legislature, Second Extraordinary Session, 1968. In 1969, this Court declared that such Act was not violative of Article XI, § 1, Article VI, § 1 or [199]*199Article X §§ 1 and 6 of the West Virginia Constitution. State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W. Va. 636, 171 S.E.2d 545 (1969).

In the 1968 Housing Development Fund Act it was the declared intention of the Legislature to provide for the “creation and establishment of the West Virginia housing development fund, the corporate purpose of which is to provide temporary financing for development costs, land development and residential housing construction to public and private sponsors of land development for residential housing or residential housing, new or rehabilitated, for sale or rental to persons and families of low and moderate income”. Succinctly stated, the purpose of the Act was to provide help and assistance to the low and moderate income groups in their housing needs. W. Va. Code, 1931, 31-18-2(d), as enacted by Chapter 5, Acts of the Legislature, Second Extraordinary Session, 1968, provided:

The legislature hereby finds and declares further that in accomplishing this purpose, the West Virginia housing development fund, created and established by this article, is acting in all respects for the benefit of the people of the State of West Virginia to serve a public purpose in improving and otherwise promoting their health, welfare and prosperity, and that the West Virginia housing development fund, so created and established, is empowered, hereby, to act on behalf of the state of West Virginia and its people in serving this public purpose for the benefit of the general public.

The 1973 amendments to the Housing Development Fund Act, where pertinent to this proceeding, may be summarized as follows:

A. The term “eligible persons and families” was substituted for the term “persons and families of low and moderate income.”

B. Included in the newly created category of “eligible persons and families”, in addition to persons and fam[200]*200ilies of low and moderate income and persons who are included because of age or disability, are the following:

1) Persons or families of higher income to the extent the housing development fund shall find and determine, by resolution, that construction of new or rehabilitated residential housing for occupancy by them will cause to be vacated existing sanitary, decent and safe residential housing available at prices or rentals which persons and families of low and moderate income can afford; or
2) Persons and families for whom, as found and determined by the housing development fund by resolution, construction of new or rehabilitated residential housing in some designated area or areas of the State is necessary for the purpose of retaining in, or attracting to, such area or areas qualified manpower resources essential to modern mining, industrial and commercial operations and development in such area or areas.

C. A 1973 amendment of the Act, now designated W. Va. Code, 1931, 31-18-20b, as amended, created a mortgage bond insurance fund which is to be maintained in the state treasury. This insurance fund shall be kept separate and apart from all other moneys and funds of the state and shall constitute a trust fund into and from which moneys shall be paid in relation to the mortgage finance bonds authorized by the amendment. A special bond insurance commitment fee and a special bond insurance premium shall be charged by the Housing Fund on all loans or mortgages made or purchased with the proceeds of sale of mortgage finance bonds and shall ultimately be paid into the state sinking fund for investment as authorized by law.

This 1973 amendment further provides that in the event payments from the mortgage finance bond insurance fund at any time causes the amount therein to be less than the minimum bond insurance requirement such fact shall be certified by the chairman of the Housing Fund to the Governor and “the governor shall transfer to the state sinking fund commission for deposit in [201]*201the mortgage finance bond insurance fund from any amounts previously appropriated which are available for such purpose an amount equal to the amount of such deficiency, and if the amount of such deficiency shall not be available from such prior appropriation or shall not have been so transferred, the governor shall include the amount of such deficiency not so transferred in the budget of his office to be submitted for appropriation to the next session of the legislature, and shall cause any amounts appropriated for such purpose to be transferred to the state sinking fund commission for deposit in the mortgage finance bond insurance fund: Provided, that the legislature shall not be required to make any appropriation so requested, and the amount of such deficiencies shall not constitute a debt or liability of the State.” W. Va. Code, 1931, 31-18-20b(d), as amended.

Subsection (e) of the above-cited code section provides that subject to any agreement with the holders of outstanding notes or bonds of the Housing Fund, “any amount or amounts paid by the State into the mortgage finance bond insurance fund pursuant to this section shall be repaid to the State as, when, and to the extent, amounts held in the mortgage finance bond insurance fund at any time or times after any payment by the State into the mortgage finance bond insurance fund shall exceed the minimum bond insurance requirement at such time or times.”

At a regularly called meeting of the Board of Directors of the Housing Development Fund, held on December 11, 1973, the board, with the respondent, Chairman Waterhouse, abstaining, adopted resolutions making certain findings and exercising the additional powers and authorities granted to the Housing Fund by the 1973 Amendments. The board adopted a resolution entitled “Mortgage Finance Bonds, Series A Resolution,” authorizing the issuance of $10,000,000.00 in principal amount of its Mortgage Finance Bonds, Series A and the sale thereof through underwriters. It authorized, empowered and directed the Chairman to execute on behalf of the [202]*202Housing Fund the underwriting agreement necessary to effectuate the purpose of the resolution.

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Bluebook (online)
212 S.E.2d 724, 158 W. Va. 196, 1974 W. Va. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-west-virginia-housing-development-fund-v-waterhouse-wva-1974.