THE WASHINGTON STATE HOUSING FINANCE COMMISSION, Petitioner, v. ROBERT S. O‘BRIEN, ET AL., Respondents.
No. 49739-7
En Banc.
October 28, 1983.
Reconsideration denied January 9, 1984.
491
The fact that he may have owned the green and white Dodge pickup does not establish guilt beyond a reasonable doubt. No one identified petitioner as having been on Dodson Road when the theft apparently occurred, at the shop building when the calf was delivered, or later, when the calf was discovered. Further, the State offered no proof that petitioner had masterminded or even aided the theft in some way.
No rational trier of fact could have found the State proved beyond a reasonable doubt that petitioner acted with an intent to deprive or defraud the owner of the slaughtered animal or that he willfully took or slaughtered or appropriated the animal to his own use. Consequently, there is no proof petitioner committed the crime charged. We therefore reverse the conviction and dismiss the case.
WILLIAMS, C.J., and ROSELLINI, UTTER, BRACHTENBACH, DOLLIVER, DORE, DIMMICK, and PEARSON, JJ., concur.
Reconsideration denied January 9, 1984.
Kenneth O. Eikenberry, Attorney General, and Philip H. Austin, Senior Deputy, for respondents.
DIMMICK, J.—Does the authority granted by the Legislature to the Washington State Housing Finance Commission violate the Washington State Constitution which prohibits
The Legislature created the Commission after investigating the impact of Washington‘s severe economic recession on the state‘s housing needs. It found that the sustained high interest rate in the mortgage market precluded home buying for many low to middle income families. The ramifications from the stagnate housing market were numerous. Home construction was at record lows, and current housing supply was critically below the population‘s needs, for both home buyers and renters. Many persons unable to procure financing to buy homes were forced into the rental market. With rental housing in high demand, low income units became difficult to find. Increasingly, substandard housing became occupied.
Recognizing both the housing need and the downward spiral effect on the state‘s economy if the housing situation were not remedied, the Legislature established a home mortgage program.
To commence the program, the Commission adopted two resolutions on August 3, 1983. The first authorized the issuance of revenue bonds for mortgage aid to first-time home buyers. The second resolution authorized revenue bonds to aid mortgagors of qualified multifamily residential
Although the course of decisions under the Washington Constitution‘s lending of credit prohibition2 has not been smooth, this court has firmly rejected, as violations of the clause, any legislative appropriation of tax revenues at the solicitation of private enterprise to aid or subsidize private commercial ventures. See, e.g., State Hwy. Comm‘n v. Pacific Northwest Bell Tel. Co., 59 Wn.2d 216, 367 P.2d 605 (1961); Johns v. Wadsworth, 80 Wash. 352, 141 P. 892 (1914). At the time of our constitutional convention, fear of powerful corporate entities was uppermost in the minds of the convention members. The disastrous consequences to taxpayers as a result of corporate political clout were well known. Knapp, The Origin of the Constitution of the State of Washington, 4 Wash. Hist. Q. 227, 239-40 (1913). The concern of the constitutional convention was “protection of [the] weak from the strong within.” Journal of the Washington State Constitutional Convention, 1889, at 682 (B. Rosenow ed. 1962). The constitutional framers believed that government was not instituted to confiscate private property through taxation to enhance corporate profit. Journal. Nor did they consider it proper for the State to put taxpayers at undeterminable risk by pledging future tax revenues for private benefit. See Knapp, at 270–71.
In the past we did not distinguish whether tax revenues or the state‘s status was used to confer a benefit. See, e.g., Washington Health Care Facilities Auth. v. Ray, 93 Wn.2d 108, 605 P.2d 1260 (1980). Recently, however, we have focused primarily on the risk that the state program
The “risk of loss” approach requires us to evaluate whether the state program “has safeguards absent in the schemes of the nineteenth century.” In re Marriage of Johnson, supra at 268. The safeguards must ensure that “[t]he public controls both the use of the State conferred ‘asset’ and the extent of its liability.” Id. at 268. The State must also retain the means to effectuate the project‘s public objective. Because these safeguards are central to the lending of credit clause, we now extend the same inquiry to state projects financed by nonrecourse revenue bonds.
We are satisfied that the Commission‘s authority meets these criteria. The primary purpose of the Commission‘s program is not to enhance the private sector‘s profit at the taxpayer‘s expense, but rather to make decent housing available statewide.3 In determining legislative motive, we
The Legislature had before it studies and testimony on the state‘s economy and the housing market. From these they reasonably concluded that a public problem existed requiring state action. Uncontroverted testimony indicated that a significant portion of the state‘s population was inadequately housed. Further, it was apparent that the private sector had been unable to correct the housing scarcity resulting from continuing high interest rates and escalating construction costs.
The adequacy of private housing and the health of the state‘s economy have traditionally been concerns of state government. See, e.g., Housing Auth. v. Seattle, 56 Wn.2d 10, 351 P.2d 117 (1960). The range of remedies available to meet these state problems must necessarily be wide. We leave the wisdom of a chosen remedy in the legislative arena. Obviously, if the program is successful, the private sector will benefit through increased housing starts, and increased activity in the housing and mortgage markets. Mortgage lenders will be entitled to an origination fee
Our discussion of legislative motive does not imply that a finding of public purpose validates an otherwise impermissible lending of credit. State ex rel. O‘Connell v. Port of Seattle, 65 Wn.2d 801, 399 P.2d 623 (1965). See In re Marriage of Johnson, supra at 266. Gratuitous state aid to private enterprise or private persons although for a laudable public purpose is prohibited by our constitution. But state aid to a circumscribed class of the public, in furtherance of legitimate state objectives, may provide the necessary “consideration” for the aid. See Public Empl. Relations Comm‘n v. Kennewick, supra at 837-38. We review the legislative purpose to confirm that the statutory objective is to benefit a deserving class of the public.
Nor should we be understood as taking upon ourselves the business of determining who belongs in the benefited class. In early cases upholding aid to the “poor and infirm,” we deferred to the legislative determination of what constituted need. State v. Guaranty Trust Co., 20 Wn.2d 588, 148 P. 323 (1944). Our only task is to assess the reasonableness of that determination.
The Legislature found that persons at certain income levels could not afford adequate housing. The resulting high demand for rental units forced many low income persons into substandard housing. The Legislature‘s criteria for mortgage loan eligibility ensure that these persons’ needs are met. The Commission‘s eligibility standards must consider at least the following: income; family size; cost, condition and energy efficiency of available residential housing; availability of decent, safe, and sanitary housing; age or
Accordingly, we conclude that the purpose of the mortgage loan program is to benefit a class of citizens reasonably determined to require public aid to meet their housing needs, and not to benefit a specific private enterprise. Because such a purpose is well within the legitimate purview of state government, it does not conflict with the lending of credit prohibition.
We further find that the Legislature has enacted safeguards that retain public control over the extent of risk to the taxpayers and effectuation of the program‘s public purpose. In reviewing the statutory safeguards, our function is not to weigh the economic risk but only to ascertain that risk to the State remains within public control and is not abdicated to the private sector. The controls imposed on the mortgage loan program are impressive. The most significant risk to taxpayers from publicly financed projects is loss of tax revenues or pledging of future revenues. Under the mortgage loan program, however, there is no risk of this kind. Program funds must be derived entirely from the investment market, not from state appropriations.
Whether bond default would impact the state‘s credit rating is open to question. See 50 Wash. L. Rev. 440, 464-67 (1975). At least two factors minimize any potential risk to the state‘s credit rating. Unlike the situation in Chemical Bank v. Washington Pub. Power Supply Sys., 99 Wn.2d 772, 666 P.2d 329 (1983), a constitutional challenge has been brought prior to bond sales. In further contrast, the bonds are secured in case of default by property with relatively high marketability. Interestingly, a market evidently exists for these bonds despite the recent default on nuclear power plant bonds.
Other risks to taxpayers are kept within the public control. The authority to issue bonds is limited in amount and expires in 1986.
These controls also assure that the public objectives of the program will be met. Legislative intent in this regard is underscored by the requirement that program proceeds are to be made available to mortgagors in a fair and equitable manner.
The Legislature‘s carefully conceived safeguards convince
We therefore grant the writ of mandamus and order the chairman and secretary to sign the Commission‘s resolutions.
WILLIAMS, C.J., and UTTER, DOLLIVER, and PEARSON, JJ., concur.
ROSELLINI, J. (dissenting)—I read the majority opinion as providing that the Washington State Constitution does not prohibit lending of the State‘s credit when it supports a statutory objective to benefit a deserving class of the public. I disagree.
Both
It is clear that the State or a municipality lends its credit whenever it allows its unique governmental status or authority to be utilized for the purpose of enabling a private corporation or individual to obtain property or money which it could not otherwise acquire for the same price.
The Washington State Housing Finance Commission would be doing just that by passing on to private, nonindigent home buyers or tenants the substantial benefit of its unique ability (as a State instrumentality) under the Internal Revenue Code to issue bonds at tax exempt rates of interest.
That the loan of credit serves a laudable public purpose does not validate an otherwise unconstitutional loan or gift
An expected future public benefit also does not negative an otherwise unconstitutional loan. We have repeatedly held that a loan of money or credit by a municipality to a private party violates
Const. art. 8, § 7 regardless of whether it may serve a laudable public purpose. Japan Line, Ltd. v. McCaffree, 88 Wn.2d 93, 98, 558 P.2d 211 (1977); Port of Longview v. Taxpayers, 85 Wn.2d 216, 231, 533 P.2d 128 (1974); State ex rel. O‘Connell v. Port of Seattle, [65 Wn.2d 801, 399 P.2d 623 (1965)] at 805-06. As we said in Johns v. Wadsworth, 80 Wash. 352, 354, 141 P. 892 (1914):The section of the constitution last quoted, in most express terms, prohibits a county from giving any money, property or credit to, or in aid of, any corporation, except for the necessary support of the poor and infirm. If the framers of the constitution had intended only to prohibit counties from giving money or loaning credit for other than corporate or public purposes, they would doubtless have said so in direct words. That agricultural fairs serve a good purpose is not questioned, but the constitution makes no distinction between purposes, but directly and unequivocally prohibits all gifts of money, property, or credit to, or in aid of, any corporation, subject to the exception noted.
See also Port of Longview v. Taxpayers, supra at 231. Unquestionably, the City‘s desire for a multipurpose theater adjacent to its contemplated community center is a commendable purpose. But, a salutary purpose does not validate an unconstitutional loan.
The City contends we should liberally construe
If
Article 8, § 7 is too restrictive in its terms, that is a matter for the citizens of this state to correct through the amendatory process. It is not for this court to engraft an exception where none is expressed in theconstitutional provision, no matter how desirable or expedient such an exception might seem.
Accordingly, the expected receipt of future public benefits cannot serve to validate an otherwise unconstitutional loan of credit.
(Italics mine.)
A decision of similar import is Port of Longview v. Taxpayers, 85 Wn.2d 216, 533 P.2d 128 (1974). In response to an addition to the Internal Revenue Code, which generally provided that for federal income tax purposes gross income does not include interest on the obligations of a state or political subdivision of a state issued to provide for air or water pollution control facilities, our State Legislature enacted legislation which sought to allow port districts to make available pollution control facilities to nonpublic entities. The act allowed this to be done by lease, lease purchase agreement, or other agreement binding such user to pay for the use of said facilities for the full term of the revenue bonds issued by the port for the acquisition of said facilities.
This court held this form of financing constitutes the loaning of money or credit by a municipality to any private party in violation of
It seems clear to us that the revenue bonds are issued by the city in its own name to give them a marketability and value which they would otherwise not possess. If their issuance by the city is an inducement to industry, some benefits must be conferred, or it would be no inducement at all. Such benefits, whatever form they may take, necessarily must be based on the credit of the city. The loan of its name by a city to bring about a benefit to a private project, even though general liability does not exist, is nothing short of a loan of its credit. . . .
. . . It is not material what such undertakings may be called, or what forms are devised to conceal their main purpose, or how worthwhile they may appear to
be, when the question of constitutionality is presented, their substance will be examined. The financing of private enterprises with public funds is foreign to the fundamental concepts of our constitutional system. To permit such encroachments upon the prohibitions of the Constitution would bring about, as experience and history have demonstrated, the ultimate destruction of the private enterprise system.
Port of Longview, at 227 (quoting State ex rel. Beck v. York, 164 Neb. 223, 227, 229-30, 82 N.W.2d 269 (1957)).
The Nebraska Constitution was subsequently amended to specifically permit the kinds of financial arrangements found by the court in Beck to be violative of the ban against loan of credit. The Washington Constitution has also been amended to permit nonrecourse revenue bonds and obligations to be used to finance industrial development projects. See
Although
The next point of reference is to Washington Health Care Facilities Auth. v. Ray, 93 Wn.2d 108, 605 P.2d 1260 (1980). Ray involved the constitutionality under
Our holding in Port of Longview that the bonding schemes violated article 8, section 7, follows the minority view that nonrecourse development bonding schemes, unless otherwise exempted, constitute loans of credit. See, e.g., State ex rel. Beck v. York, 164 Neb. 223, 82 N.W.2d 269 (1957); State ex rel. Saxbe v. Brand, 176 Ohio St. 44, 197 N.E.2d 328 (1964). The majority of other jurisdictions have held that nonrecourse revenue bonding schemes are not loans of credit. For a discussion of the majority position, see, Recent Developments, State Constitution—Debt Limitations—Municipality‘s Issuance of Revenue Bonds to Finance Private Pollution Control Facilities Violates State Constitution, 50 Wash. L. Rev. 440, 447-49 (1975). We believe that some of the decisions from jurisdictions following the majority approach can be distinguished from the present case on the basis of differences in the constitutional provisions involved. We disagree, however, with the reasoning by which the conclusion is reached in others, that there is no lending of credit without the incurring of new and actual financial liability.
The underlying rationale of the minority view and that of this court is that a state or municipal corporation lends its credit whenever it allows its unique governmental status or authority to be utilized for the purpose of enabling a private corporation or individual to obtain property or money that it could not otherwise acquire for the same price. A state or municipality can “lend its credit” without incurring any actual indebtedness.
Here, the credit that would be loaned would stem from the unique ability of a public agency, under the Internal Revenue Code, to borrow money at a lower rate of interest than would otherwise have to be paid by a private party. The Authority‘s challenged actions involve loans of credit inasmuch as the Authority‘s issuance of the bonds would enable privately owned health care facilities to obtain benefits which they could not otherwise obtain.
This strict interpretation of the lending of credit provision is consistent with our earlier holdings. The people of this state have not amended the constitution to disclaim our broad interpretation of the lending of credit
prohibitions. Rather, they have chosen to carve out only two constitutional exceptions. Amendment 45 ( article 8, section 8 ) was adopted in 1966 in response to State ex rel. O‘Connell v. Port of Seattle, 65 Wn.2d 801, 399 P.2d 623 (1965). More recently, voters ratified amendment 70 (article 8, section 10 ), in apparent anticipation of an unfavorable holding if an action were brought challenging public utility loans for energy conservation purposes as unconstitutional loans of credit. As we stated in Port of Longview, at page 806:If
Article 8, § 7 , is too restrictive in its terms, that is a matter for the citizens of this state to correct through the amendatory process. It is not for this court to engraft an exception where none is expressed in the constitutional provision, no matter how desirable or expedient such an exception might seem.(Footnote omitted.)
The lead opinion then went on to uphold the validity of the bonding program under the constitutionally recognized exception to the prohibition of
It has, however, been stipulated in the instant case that
The Commission [in exercise of its statutory authority] intends to issue tax-exempt nonrecourse revenue bonds for the purpose of assisting in the financing of single family homes for persons who may not qualify under
Art. VIII, §§ 5 and7 of the Washington Constitution as either poor or infirm, and for assisting in the financing of multi-family residential rental units the occupants of which may be neither poor nor infirm within the meaning of those sections of the Constitution.
Agreed Statement of Facts, at 10. Thus, the rationale which sustained the bonding program in Ray is simply not available to the petitioner in the instant case.
The majority opinion cites our recent decision in In re Marriage of Johnson, 96 Wn.2d 255, 634 P.2d 877 (1981) as an indication that we have returned to a “risk of loss” approach in lending of credit cases. I disagree. Initially it should be pointed out that the lead opinion in Johnson was signed by only three Justices, with three others concurring
The basic subject matter in Johnson was entirely different from the instant circumstances. At issue in that case was the constitutionality of so much of
Likewise, Public Empl. Relations Comm‘n v. Kennewick, 99 Wn.2d 832, 664 P.2d 1240 (1983) merely upheld the Commission‘s statutorily imposed duty to prevent and remedy unfair labor practices. By enforcing that duty, albeit to the benefit of a private association, the Commission exercises an important public function. Private parties may indeed benefit incidentally as a result of the exercise of that important function; however, as long as the private benefit is incidental to the public purpose served, the legislation is not unconstitutional. Kennewick, at 838.
The critical distinction between these two latter cases and those finding a violation of the lending of credit prohibition is that of performing a governmental service, on one hand, and a transfer to private parties of a governmental power or prerogative, on the other. Here, instead of providing a recognized governmental service to the people, the State would be directly (and not merely incidentally) subsidizing private home buyers by acting to pass on to them its own unique ability under the Internal Revenue Code to
The Legislature, in enacting the housing financing act, could have avoided the constitutional prohibition by limiting eligibility for assistance to those persons with such low incomes and limited assets as to be undeniably poor or needy. Or it could have dealt with the matter as it did with industrial development financing—by proposing to the voters a further constitutional amendment.
Instead, however, it did neither. Rather, without an accompanying constitutional amendment, the Legislature left it to the Housing Finance Commission to set eligibility standards, with income to be only one of the factors to be considered by the Commission in doing so.
I would remain with our well reasoned, established precedent and hold that the authority granted by the Legislature to the Washington State Housing Finance Commission violates the prohibition against lending of State credit.
STAFFORD, BRACHTENBACH, and DORE, JJ., concur with ROSELLINI, J.