*1 Richmond disability, etc., Infants, et al. other under
v. Virginia Housing Development Authority, et al. 26, 1980.
November
Record No. 791533. Carrico, Harrison, Cochran, Poff, Thompson, Compton Present: JJ. *3 Felton, (Felton J. Durwood III brief), & Fagan, on for appellants. Davis, Brent; Cave; Christian, Barton, Lee F. (A. Jr. J. B. William Epps, Brent & brief), on Chappell, for appellees.
COMPTON, J., delivered the Court. opinion In the General amended the De- Virginia Housing Act, 36-55.52, velopment Code Authority 36-55.24 to empower §§ appellee Virginia Housing to finance Authority housing, Development under circumstances, limited and families “other” than low and income. In validation this bond moderate proceeding instituted under 15.1-214, Code issue on principal appeal whether the are purposes supporting financing permissible under the purposes of Virginia. Constitution the court below validate initiated Authority litigation million, the $10 bond amount of issue proposed principal used to finance the construction multi- will proceeds Act as family housing financed under aforesaid permitted resolution, amended. The are bonds sanctioned June entitled “A Is- adopted Resolution Authorizing (Portsmouth) suance of De- Housing Bonds Housing Virginia *4 and for the the Holders Thereof.” velopment Rights of Authority filed, After a certain constitutional had been reply raising objections 15.1-217, Code infant ad litem for by duly § guardian appointed and defendants other defendants and under after a disability, hearing, the trial court determined the bonds should be validated. We 15.1-219, filed Octo- defendants’ under Code to the granted § appeal, ber 1979 final order below.
The created in 1972 in was the General Authority by Commission, a legislative Housing Study findings response the Common- which had a review of needs in completed finance agency wealth. The recommended that a study group stimulate, loans, the interest established to low through production within the State. and moderate income low but The government not an within the State Authority agency Commonwealth; “a was created the it is as a subdivision of political and essential public instrumentality exercising governmental functions.” Code confers on legislation 36-55.27. The enabling § alia, sued, inter to con- to sue and be Authority, power power tract, the and real and the buy, sell lease power power property, borrow and Authority’s issue bonds. Code 36-55.30. The money § major function is to attract the sale of through capital, tax-exempt notes, bonds and and make mortgage to then utilize the proceeds loans for the of rental and for low housing” development “ownership Virginia Report moderate income 1979 Annual persons. Housing Gen- Study and The Reported Commission to the Governor eral Assembly Virginia, 25, H. Doc. No. 24 at 2 House Senate Documents, Sess. 36-55.41,
Under Code to establish is authorized § Authority one funds, funds,” or more called reserve special pledged “capital Funds Reserve security bonds. repayment Capital consist of the Com- or made available any moneys appropriated monwealth, bonds, “other” any of sale of notes or proceeds sums made available to the Resolu- for such fund. Under Authority tion, a Reserve Fund is issue. Capital established the present 1978,
Prior to the Act were limited to meeting purposes needs of low and income In the General moderate families. Assembly amended the Act Code 36-55.30:1 by adding permit exercise its “to increase the availability power housing to Acts of all economic and wealth levels.” 1978, ch. 508. The of that amendment was limited to application City Portsmouth.
In the 1978 was a further amend- repealed amendment ment. Acts ch. 374. Under the case, Resolution bonds at issue here are authorized for the solely of making loans to finance 1979 amendment. That developments pursuant amendment, alia, inter made extensive in Code 36-55.25 changes which sets forth the legislative findings declaration of necessity; it also added 36-55.30:2 to the Act. These in italics changes appear strikeovers as follows: *5 36-55.25. and Finding declaration of necessity. hereby —It
declared: (a) there exists within this Commonwealth serious of shortage and sanitary safe residential at housing prices or rentals which and families of low and persons moderate in- afford; come can that this has shortage contributed to and will contribute to the creation and of substandard living persistence conditions health, and is inimical to the welfare and prosperity of Commonwealth; the residents of this (b) that it is imperative of residential supply for such housing and fam- persons ilies and for and families persons actions or displaced natural increased; disaster be (c) that and in- private enterprise unable, vestment have assistance, been without to produce needed construction or rehabilitation of and safe resi- sanitary dential at housing or rentals which prices and families persons of low and moderate income can and afford sufficient provide long-term mortgage financing residential for occu- housing such pancy families; (d) and that a concentration persons of persons and low and moderate income even in stan- families of dard conditions; structures does not eliminate undesirable social (e) that the governing body city may in its discretion deter- of mine that it is necessary preservation via- financial bility city health, such and the prosperity and its welfare residents that population city such be maintained as eco- nomically providing housing persons and families of other than low and moderate income in order tax to broaden the areas; bases Such (/) that in providing sanitary resi- safe dential housing at prices or persons rentals which and families of low and moderate income can necessary it at times be afford or desirable provide persom and other families of than income; low and moderate (g) that private enterprise and investment be both encouraged land sponsor development and build and rehabilitate residential housing for such persons and families low and moderate build which prevent will the recurrence slum by housing conditions persons varied area, economic projects means same or and that private financing supplemented by financing pro- vided in this in order to chapter help creation and prevent recurrence of substandard living conditions and to assist in their permanent elimination throughout Virginia.
It is further declared that in order to a fully adequate supply safe sanitary rents, dwelling accommodations at afford families can or or other costs such prices, urban, mix in necessary recover economic and to stabilize estab- to create and necessary areas the finds that it is legislature of en- lish a for the State housing authority development stimulating investment of couraging capital meet the residential construction and rehabilitation of such areas needs of and families or stabilize *6 and construction the use of to through public financing, provide of mort- and make for the mortgage loans to purchase provision loans and otherwise. gage
It in the is further declared be and hereby necessary public to interest that housing authority such State provide development costs, land financing, develop- predevelopm.ent temporary ment and residential construction or rehabilita- expenses housing tion by for sale rental to and families or private sponsors persons others; further, of low and moderate income and to provide sanitary and mortgage purposes financing supplying of rents, dwelling costs which prices accommodations at or other safe areas, persons such stabilizing or can urban or families of afford without including limitation, insured mort- federally long-term further, gages; to rehabilitation of increase construction and low and moderate income from housing through purchase lenders mortgage authorized to make loans in the Commonwealth of loans for residential and families mortgage housing persons Commonwealth; further, of low and to moderate income in this technical, consultative and assistance services project State, further, federal, private sponsors; to assist in coordinating resources; and regional local and and efforts public private guarantee to the extent of certain herein the provided repayment loans further, secured residential mortgages; promote wise of land and usage other resources in order preserve of life we quality value so in highly Virginia. n Under -certain -as- 4n 36- conditions -extraordinary- specified -5-5-.-39.1-the HDA from the- intent- of the may vary- preceding findings- declarations.
It is further declared that are hereby all foregoing public borrowed, and uses for purposes moneys may which public advanced, loaned, expended, and that activities granted, such serve a in or otherwise public benefiting improving Commonwealth; of this of people necessity enacting hereinafter set forth is is in interest and provisions so declared as matter of determina- hereby express legislative tion. Districts; 36-55.30:2. Housing Rehabilitation Economically Projects. (a)
Mixed it appears governing body Whenever — any city blighted a portion city (i) such is or deterio- rated, deteriorating, as provided 36-49(1), (ii) provided is as 36-49.1, deteriorate, 36-52.3, (Hi) likely provided in § or (iv) higher density population relative characterized proportion substandard than the overall metro- politan area and predominantly by persons inhabited a lower socio-economic status prevailing metropolitan than that area, and in such case enterprise and investment expected, assistance, not be without the con- produce struction or sanitary to meet the safe persons needs low and moderate within families of such area and to induce other such to live within area and thereby help to or recover a economic mix desirable stabilize therein, such governing body may by resolution create a housing rehabilitation encompassing portion district such city.
(b) any such governing body that proposed shall determine If housing project, within or without a *7 rehabilitation dis- trict, any, may feasibly persons serve and low and if families of subsidizing only moderate income by effectively the rentals of such persons through higher charged and to other rentals families that, persons reason, any project or proposed other such only portion, a eighty not to exceed percent, feasible if thereof persons be persons rented than other and low families of income, and by moderate it resolution such may proposed declare project economically an project. mixed
(c) Any governing body such appoint per- shall a board of five sons, all whom shall city be residents and at least of four of of associations, whom be representatives savings shall and loan of bankers, commercial and mortgage banks evaluate which shall investment, assistance, ability private enterprise without of meet the persons needs moderate in- low and of families of come any proposed housing within district and to rehabilitation persons induce other live proposed within district. No such housing created, any rehabilitation district shall be nor proposed project an economically governing declared mixed project, body board, any city unless majority such vote at a least members, determined, three a hous- shall have in the case of first district, ing private that and investment enterprise rehabilitation housing needs and may reasonably expected not to meet such persons higher induce proposed incomes to live within the or, economically district in the case project, mixed unable, private without as- enterprise and investment have been sistance, mortgage financing the pro- sufficient posed project producing at interest rates rentals which or low and moderate income can Unless families of afford. board shall its years determination four from reaffirm after determination, date previous any its area as then the status housing a rehabilitation district shall terminate on the anni- fifth versary previous such determination. created,
(d) housing No rehabilitation district shall be nor proposed project economically declared an project, mixed governing body any city, except city having than (i) no fewer one hundred ten thousand nor more than one hundred eleven thousand inhabitants according to the 1970 census and federal (ii) at least seven per centum units all residential located within city receiving such mortgage rental sub- or interest private other than sidization sources. from agree that parties in view of the criteria population subsidy (d) 36-55.30:2, amend- subparagraph benefits of the ment again have been limited to the of Portsmouth.
Obviously, strict limitations have been placed upon power granted to the Authority by Amendment finance families “other” than those of low and moderate in- come. The be done financing may in an area only “hous- designated ing district,” rehabilitation 36-55.30:2(a), in a housing project as an qualifying mixed “economically 36-55.30:2(b). And project.” § governing body of create a city may district or declare a to be an Fur- project economically project. therm.ore, the governing not make body may unless designations board, on which local financial institutions are private represented, determines investment enterprise reasonably *8 to meet the expected 36-55.30:2(c). Also, need. public housing in the case of a district, housing rehabilitation such status of area terminates unless the board reaffirms its determination. Id. previous
On as in the court, trial appeal, defendants that the amended argue statutory language designating and families of other than low “persons
and moderate income” actually means income Con- upper persons. sequently, they contend that income financing “only upper housing not a constitutionally permissible for the Authority. purpose”
Reviewing amendment, defendants out that Gen- point eral in Assembly, (d) subsections (f) through states its findings, that a concentration of of low and moderate income even in persons standard structures does conditions; not eradicate undesirable social that the governing of a body in order to city, the financial preserve of the viability and the city health, citizens, welfare and of its prosperity has discretion to determine that its be maintained eco- population nomically by providing housing for income families in upper order to broaden the area; tax that, base of the in order to provide housing for of low income, and moderate it bemay necessary “or desirable” for a city for provide housing income upper persons.
Defendants say that the General Assembly, having broadly expanded Act, of the purposes then to clothe the proceeded power engage income finance. upper housing They argue of the four subsections 36-55.30:2, (a) (b) are particularly important. defendants, According the General has em- Assembly powered Authority, (a) an area under designated city as a housing district, to finance an unlimited percentage income upper (b), As to housing. defendants contend that if it be- “desirable” for a series comes of reasons for the to subsidize low city and moderate income housing income placing housing upper same project, Authority is to finance to 80 empowered up percent of the units in housing income project families. upper there are
Assuming constitutional limits on the to which extent gov- ernment can finance, defendants properly engage housing say question decision whether the of the 1979 primary purpose Amendment is to low and moderate income housing, with income upper feature housing the main being incidental to merely Defendants purpose. contend that income is a sub- upper stantial of the component 1979 Amendment and is the predominant of the part enactment, income thereby low and moderate making itself the incidental defendants main- portion. Consequently, tain, there has been a exercise of constitutionally impermissible of the General power Assembly by providing upper and the bond financing, issue is thus invalid. Authority, defendants’ explicitly challenging interpretation percentages “other” under financed subsections
(a) (b) 36-55.30:2, argues that the General has *9 decent safe its exercised validly police power those persons at income prices for low moderate contemplated The maintains that Authority program can afford. means of a constitutional accomplishing Amendment is 1979 that valid agree. We public purpose. authorization statutory
The in this case from the central issue stems estab- Reserve Fund state funds to the Capital appropriation Constitution, X, pub- 8 of the lished for the bond issue. Under article if the ap- lic funds must be used for Consequently, public purpose. not is for a private purpose, propriation public purpose man- constitutional statutes in are not to the foregoing issue repugnant 594, 601 764, 775, Va. 107 S.E.2d Day, date. Harrison v. 200 (1959). which attaches
Because of validity presumption doubt as to enactment of the General a reasonable every Assembly, legality. in favor of its law must be resolved constitutionality 827, Commonwealth, 349, 358, Blue Cross S.E.2d v. 221 Va. 269 (1980). Moreover, 832 that a declaration legislative contemplated correct. one, conclusive, use is a while not is public presumed Dervishian, 120, 405, 398, Richmond v. 57 S.E.2d 190 Va. (1950). enactment But the test of the of an validity constitutional it, is v. what be Rudee Inlet done under what it allows. may Bastion, 131, (1966). 909-10, 906, 206 Va. 147 S.E.2d
In Mumpower Housing Authority,
v.
11 S.E.2d
176 Va.
732 (1940),
court,
case,
large
“a
earlier
that
said
quoting
discretion” is vested
what
General
determine
interest
what
is
for the
requires
just
necessary
protection
There,
dealt
interest. 176 Va. at
court
Here, the General declared terms in Assembly has in plain 36-55.25, determination,” “as a matter of legislative express is a there serious and safe residential at shortage sanitary which low and can afford. The prices legisla moderate ture has further determined that such continue to foster shortage will health, substandard welfare and living conditions which inimical to the citizens of this There is the prosperity finding State. further *10 unable, assistance, has been new without enterprise produce construction or achieve housing, rehabilitation of low-cost or pro vide sufficient The long-term for such mortgage financing projects. 1979, lawmakers determined in the deteriorat obviously recognizing ing conditions cities and the to the suburbs” many “flight residents, cities income that the fiscal of such upper city vitality could not be without a “mix” of preserved maintaining persons varied economic The levels to broaden the tax base such areas. General further Assembly acertained that in order proper income, housing for those of low and moderate it would necessary levels, for other provide housing encourage economic persons an infusion of such families a for the disadvan into housing project The taged. legislative that attack will such method of judgment stabilize conditions, areas, blighted will eliminate undesirable social land, will promote use and will welfare prudent improve the citizens of the Commonwealth generally.
Given the axiom that health, the general safety and morals of the residents of the Commonwealth are of the General proper objects interest, Assembly’s it cannot be successfully that disputed eradicating safe, slums and uncrowded providing sanitary, housing, affordable by low and moderate income will those In persons, promote objectives. ratifying legislative court de prior judgments, Mumpower has cided that housing for low income is a providing valid persons public and in County 235, 237, v. DeGroff, 214 Va. 198 purpose, Fairfax 600, (1973), S.E.2d 601 has said that those for providing housing of “moderate” serves such a purpose. income
We now hold that dominant intention of the General 1979 was likewise to low moderate in provide housing and, come incidental objective, authorized properly housing financing for of other than low moderate income.
671 demonstrate belief findings legislature promotion economic social areas and in low integration once-blighted and moderate income will serve to alleviate the unsatisfactory drain on social conditions which there and will curtail persist finance from such conditions. stemming municipal effect, In invite the lawmakers defendants us to second-guess economics, on matters of we This sociology public policy.
do. Those considerations domain. belong exclusively legislative To action, invalidate this we must find the General legislative As has acted sembly and that its action has no arbitrarily, unreasonably health, substantial relation to the morals or safety, welfare general the citizens of this West Brothers Brick Co. v. Commonwealth. Alexandria, 271, 881, Va. 288, (1937). 169 S.E. 888 Under law, we are from in this a conclusion prevented reaching case. case, no
Citing
state,
within or
without
that is direct authority
seek,
its
defendants
position,
comfort in
Vir
several
analogy,
ginia
Bastian,
cases.1 In Rudee Inlet Authority
supra,
the court
v.
states,
“low,” “moderate,”
In
financing
at least 22
providing
statutes
“mixed,”
“higher”
public housing
have withstood
See
constitutional attack.
Mortgage Ass’n.,
1966)
Walker
(Alas.
(housing per
v. Alas. State
se
672 decided that harbor facilities established for the use of public served a and that public could be taken for purpose private property held, however, condemnation. The purpose by court also that the grant unrestricted to sell or lease the condemned land was power statute, effect, unconstitutional because the taking permitted Defendants, private for use. property on the private drawing dissent Bastían, argue which must be “extracted” from principle Bastían, Mumpower as well as DeGroff, is that authori- ties not few, “may engage in activities which benefit a select primarily namely because upper such activities do constitute persons, a public purpose.”
Defendants’
case,
reliance
Bastían
on
In that
misplaced.
court
out there
no
pointed
was
restriction in the
in issue “to
statutes
the effect that the sale or
land condemned
the Au-
leasing
thority for
use shall
be in furtherance
public
only
of or incidental to
the main
of the act or no
purposes
needed for the
use.”
longer
public
206 Va.
Defendants also
on
Redevelopment
Hunter v.
rely
195 Va.
(1953). There,
N.W.2d 780
or moderate
effort
estab-
reliance on exact
in their
Defendants’
percentages
be used for
lish that the Act
funds to
mainly
private
permits public
Redevelopment
is misdirected.
in Rudder v.
Recently
purposes
(1978),
Housing
citing
Authority, 219 Va.
[T]he elimination of a deteriorated area. The blighted disposition land, a recurrence although designed to prevent conditions, subordinate blighted incidental and primary purpose. Likewise,
Id. has de- situation General Assembly present cided that to en- necessary some form of intervention is governmental of urban while low courage elimination blight providing and moderate income make loans in connection persons. power is, out, with this effort less a govern- “far Authority points domain,” mental intrusion than eminent is a valid exercise police those power remedy conditions. challenges advance numerous
Defendants other constitutional Act, two of which merit discussion. In order to assure that the Reserve Fund fulfills the Capital minimum issue, reserve established for the capital bond requirements provisions are made for state in the event aof deficit appropriations in the Fund. Code 36-55.41(2) creates mandatory procedure designed to to the bring General attention Assembly’s deficit in any the Fund. According if the Fund is reduced below procedure, reserve capital requirement minim.um the chairman year, of the Authority must notify Governor Director Budget the extent of the deficiency. 36-55.41(2) Section further provides:
Within five after the days beginning of each Gen- session of the eral Assembly, Governor shall submit to the officer presiding of each house of a sum, printed budget including if copies any, to restore required each such reserve fund to the capital minimum reserve fund capital for such requirement fund.
The General then sums sufficient to restore appropriate the Fund to the minimum reserve capital requirement. *13 be a
Defendants contend that the foregoing provision “purports General As- on the the obligation, Governor mandatory by imposed III, 1 of the such a directive violates article sembly.” They argue § Constitution, V, and article § with dealing separation powers2 Defendants the Governor.3 concerning legislative responsibilities is reserved maintain that discretion legislative proposals respecting statute,4 Act the the Governor and but under by Constitution contents, making he must thus forfeit discretion over budget’s (2) 36-55.41 invalid. We do not constitutionally agree. § out, As the the crux of whether the this issue is Authority points in the Governor to include a statutory provision question requires agency request Reserve Fund in his as Capital deficiency budget or recommend only, whether the Governor to provision requires such an legislature. to the We hold the statute merely appropriation the former and of the requires discharge legislative represents proper function to the form of a contents.5 establish budget specified
Code to include in 2.1-398 Governor’s requires budget § alia, columns,” inter each “separate parallel “agency’s request” “the Governor’s for each biennial ensuing year recommendation direc Nowhere in the period.” attacked there statutory provision tive the the amount of Governor must recommend appropriation Reserve Fund shortfall. We construe the Capital merely provision amount, the Governor to include for informational require any tech as an purposes only, budgetary agency Manifestly, request. deficit that nique the General Assembly keeping apprised may one of the Reserve Funds is Authority’s part develop Capital “ ” executive and ‘common link’ which exists between the the re legislative and which recognizes departments government Strasburg each. & R.R. v. Common roles of Winchester spective wealth, 264, 270, (1906), Dreyer 106 Va. 55 S.E. 694 quoting Illinois, v. (1902).6 187 U.S. 84 2 distinct, legislative, executive, departments separate judicial “The shall be others, belonging powers properly so that . .” none exercise the to the . 3 Assembly, regular every “The Governor shall communicate to the General at session, Commonwealth, the condition of the recommend to its consideration such may expedient, measures as he deem .. .” 4 budget provides, part, Code 2.1-398 submitted the Governor shall judgment.” be “based on his own conclusions and statutory provision The court trial ruled the but decided the was unconstitutional
provision bearing validity had no on the of the bond issue. link,” example (k) For another of the “common see Code 51-111.47 which appropriations Virginia Supplemental System deals with to the Retirement as follows: appropriation Assembly by bill is submitted to the General conclusion, (d) 36- of §
In defendants that subsection argue 55.30:2, districts economically housing restricting Portsmouth, unconstitutional amounts to projects funds of state contend that the They special legislation. expenditure statewide expressly appropriated public purpose limited one disagree. We remedy existing city. problems VII,
Article defines a act” a “law Constitution “special town, to a county, regional government applicable city, enactment an affirmative vote of two-thirds of the shall mem- require addition, bers In elected each house of General Assembly.” VII, article allows the General by special §2 act for (d) subsection is a powers any city. Assuming special act, the evidence shows 1979 Amendment was approved *14 House Delegates of and the two- Senate than the by required more thirds vote. defendants’ legislation argument Consequently, special without merit. t reasons, For the the bonds be order he will foregoing validating7
Affirmed.8 regular year prior begins Governor each session that in an even-numbered shall payable include the contributions will due and retire- become the during ment treasury allowance fol- account from the State the biennium next lowing, [Emphasis based on . . the contribution rates certified the Board. . added.] 7 litigation, validity In prior this the the bonds been to their of has established § issuance permits proceeding in accordance with Code a 15.1-214 which brought any bonds, validity legality “at time.. .to of [and] establish the of such the proceedings all taken in connection with the or issuance authorization theretofore bonds, not, (Emphasis added.) of such . .”. The final order be entered here does course, adjudicate of any questions conceivably collateral in which could be raised the subsequent application future proceeds. related to the See bond Code 15.1-220. dissent, argues “binding In Mr. lustice Poff this decision is not and conclusive” meaning within the of Code 15.1-220. During majority opinion, the course of this trial we have said the court reached right accompanying result for not all of the correct See text reasons. note supra. Thus, judgment we affirmed the below. effect, In that judgment dissent view advances the that of a a final decision majority actually judgment Court a is not final at The error in such a all. Const, VI, contention is disclosed a mere statement See of it. Va. art §§ providing quonim Code judgment appeal 17-93 and -94 a and for final on upon justices, concurrence except of at least three a when law declared unconsti- tutional. The vote in appeal. pro- this case is four to on two issues main On the question dissent, cedural in addressed Mr. lustice Carrico’s the vote is at three least J.,
CARRICO, dissenting. in his Justice Poff Mr. While I with the views agree expressed basis for disagreement I would add another separate opinion, majority. review under majority legislation
As out in the opinion, pointed Housing the Virginia “strict limitations” upon power imposes housing to finance Authority projects Development finance upper in income brackets. The upper or economi- rehabilitation districts housing only housing address, I mixed More to the cally problem projects. important district rehabilitation local create a body may governing after or declare an then only receipt mixed economically project local bank- of a favorable a board report composed principally terms, ers. relates its under review Finally, by legislation the declaration districts or creation of The of Portsmouth. City mixed economically solely projects therefore, be used issued, can bonds proceeds proposed to finance in that city. housing projects only record did not
After this we case was discovered that argued, contain Portsmouth resolution of the council of the creating economically rehabilitation district or declaring we counsel called project city. Accordingly, upon resolution, comment in and we absence of the local writing upon later ordered oral on the argument point. counsel for no local resolution had been
Conceding adopted, both sides took the a resolution of such position adoption was issuance of the bonds in prerequisite question. *15 review, under creation legislation stated, counsel does not the require of a district or the declaration of an economi- bonds, mixed to the issuance of and the bond cally project prior the not limit the the by resolution does use of adopted of the sale of bonds to proceeds any particular project projects. situation, As counsel the if the bonds are held valid perceived by not sold because of the lack of this court but qualifying project, issued; or, be the bonds would never if the bonds were issued and but the because no sold then proceeds expended project qualified, three; by equally to this results in an on that issue an affirmance divided court. Spahr, Hence, (1904). judg- Funkhouser v. Va. S.E. binding validity and conclusive ment as to of the bonds on all issues within meaning 15.1-220. of Code until quali- or held redeem bonds to would be used the proceeds fied itself. presented project creating view, a resolution the absence of
In counsel’s mixed economically project an rehabilitation district or declaring later, rather issue, be decided of proceeds” presents “application question, bonds” than an or issuance of “authorization maintained, the non- must be counsel resolved now. Consequently, matter “beyond ais existence of the local resolution enabling case.” scope inquiry In note been majority. this view has
Apparently, adopted 7 of its adjudicate disclaims intention opinion, majority “collateral the future could raised in questions which conceivably related to the application of bond subsequent proceeds.”
I disagree both with the and with counsel. This majority proceed- -221, ing was brought Code 15.1-213 to whose pursuant pro- §§ visions suits, to all “apply actions and of whatever nature proceedings involving the validity of bonds of subdivision.” Code any political determine, 15.1-213. 15.1-214, Under the court is required alia, inter “the all con- legality of theretofore taken in proceedings nection the authorization or issuance of such bonds.” I com- prehend that the mandate to determine bonds from validity the standpoint of “proceedings theretofore taken” includes necessarily omitted, into investigation all whether taken or preissuance steps, which might affect the validity of the One re- bonds. preissuance quirement is that the local resolution governing shall create body by a housing rehabilitation district or declare an mixed economically project.
It is that the indisputable legislation under review only applies City Portsmouth of the bonds proceeds proposed to be issued pursuant thereto can be used to finance construction in a housing rehabilitation district or an economically project created or declared believe, therefore, the council of I that city. that the adoption of an resolution enabling Council Portsmouth is a condition precedent Authority’s issuance of and, bonds in hence, question to the establishment of the validity the bonds themselves. I
Consequently, the notion that reject the lack of a local enabling resolution is beyond the scope in this case inquiry and that the should be left for point later Indeed, determination. a party intending the absence of the rely upon necessary local resolution would his omit at to raise the á peril point in bond validation proceeding. *16 15.1-220, Under Code a “forever final decree bonds is validating and conclusive” binding not as to all matters actually adjudicated but also as to a any “which have been Such point might presented.” decree also constitutes a the institution injunction against permanent or any action matter adjudicated proceeding contesting “which have might been called in bond question validation] [the proceedings.”
The absence of a local resolution is fatal enabling validity of the bonds Thus, to be issued in this I case. would proposed reverse the decree a of the trial court and enter final decree declaring issue invalid. proposed
POFF, J., dissenting. I concur in the views in Mr. Justice Carrico’s expressed opinion and, footnote, a adding I dissent from the views the majority.
The majority decision the conclu rest appears primarily upon economics, . . . sion “matters of sociology public policy in the domain” and that this Court belong exclusively legislative that, the law-makers”. We have held “second-guess although “a presumed General . . . right, declaration public that a one, use a contemplated is is not conclusive is Bastian, 906, subject Authority review”. Inlet judicial v. 206 Va. 909, 131, 147 S.E.2d (1966). to declare legislative power public course, policy subject, to the constraints of the Con stitution. Whether the of a act goal is a legislative public purpose and whether the act is reasonably achieve that designed purpose are constitutional As a determination, matter final questions. con stitutional questions belong domain. exclusively judicial
We have resolved these in favor of questions housing assistance programs Mumpower Housing Authority, lower-income families. v. 176 Va. (1940); County DeGroff, S.E.2d 732 v. Fairfax
214 Va.
(1973).
For another but unto yet subordinate sufficient order bonds should be reversed. statute validating provides that “the . . . Governor shall the sum submit... budget including to” finance deficit which occur in the fund estab required lished to on the his letter pay interest bonds. In principal the trial opinion, the view that this “is judge expressed provision III, 1, V, unconstitutional and invalid” under Article and Article which, of the said, he Virginia Constitution “vests in Gov ernor the sole discretion to determine what recommenda legislative * tions he makes to the ruled, General in the He budget.” however, that is severable provision and that “elimination of this provision does not defeat the of the Act.” his Incorporating order, letter in the opinion final he declared “the means provided for the of the payment Bonds are valid” and that are “the Bonds valid”.
But the provision is, severed itself, the trial judge part of one parcel of the Indeed, crucial “means provided payment”. the statute provides no other means of a deficit. Absent financing means, the statute Hence, fails guarantee full payment. trial erred judge in the statute validating as severed. Ignoring error, the affirm but, majority validation order reverse implicitly, very ruling effect, it was based. upon In has majority affirmed in reversed in part, modified the order part, entered below. Since full, does majority not affirm in the validation order * support This view finds applying decisions of courts in other states com- parable provisions Waterhouse, constitutional to similar statutes. State v. 212 S.E.2d (W. Nusbaum, 1974); 391, 450, Va. Warren v. 59 Wis.2d 208 N.W.2d (1973). conclusive” within the Code 15.1- “binding meaning
220.
CARRICO, J., joins dissent.
THOMPSON, J., concurring dissenting part part. I concur in that of the dissent of part Mr. Justice Carrico which states: believe, therefore,
“I anof resolution adoption enabling Council of Portsmouth is a condition precedent and, hence, issuance of Authority’s the bonds in question the establishment of the validity bonds themselves.” case, As to the remainder of the I concur in the majority opinion.