text:
    Cornelia WEBSTER, a minor by her mother and next friend, Gertie Webster, etc., and Rocky Lugo, etc., Plaintiffs, Vicki Lynn Horton, Individually and on behalf of all others similarly situated, et al., Appellants, v. Alan R. PERRY as Chairman and representative of the Board of Education of the Winston-Salem/Forsyth County School System, et al., Appellees.
    Nos. 74-1161, 74-1995.
    United States Court of Appeals, Fourth Circuit.
    Argued Jan. 6, 1975.
    Decided March 17, 1975.
    Michael Sheely, Winston-Salem, N. C. (Shelley, Blum, Blum & Sheely, Donald S. Gillespie, Jr., Terrence Roche, Legal Aid Society of Mecklenburg County, Charlotte, N. C., Herman Stephens, Legal Aid Society of Forsyth County, Renn Drum, Drum & Liner, Winston-Salem, N. C., on brief), for appellants in Nos. 74— 1161 and 74-1995.
    John J. Doyle, Jr., Charlotte, N. C. (William W. Sturges, Weinstein, Sturges, Odom, Bigger & Jonas, Charlotte, N. C., and Andrew A. Vanore, Jr., Deputy Atty. Gen., U. S. Dept, of Justice, on brief), for appellees The Charlotte-Mecklenburg Board of Education, et al., and A. Craig Phillips in Nos. 74-1161 and 74-1995.
    John L. W. Garrou, Winston-Salem, N. C. (W. F. Womble and Womble, Carlyle, Sandridge & Rice, Winston-Salem, N. C., on brief), for appellees Alan R. Perry and Marvin Ward in Nos. 74^1161 and 74-1995.
    Before BRYAN, Senior Circuit Judge, and RUSSELL and FIELD, Circuit Judges.
   PER CURIAM:

These are joint appeals in two consolidated public school cases from orders of the District Court of December 6, 1973 and July 31, 1974. The actions were brought by the parents and next friends on behalf of students who had been expelled from the Charlotte-Mecklenburg School System and the Winston-Salem/Forsyth County School System. These expulsions were effectuated by virtue of North Carolina General Statutes § 115-147 authorizing disciplinary sanctions for student misconduct. Plaintiffs insist that this enactment conflicts with the Equal Protection and Due Process Clauses of the fourteenth amendment. Relying upon 42 U.S.C. § 1983 they seek to have the Act declared as without even original validity and to enjoin its further utilization. With the integrity of a State law at stake a three-judge court was impanelled, 28 U.S.C. § 2281.

The statute in dispute reads:
“§ 115 — 147. Power to suspend or dismiss pupils.—
The principal of a school shall have authority to suspend or dismiss any pupil who wilfully and persistently violates the rules of the school or who may be guilty of immoral or disreputable conduct, or who may be a menace to the school: Provided, any suspension or dismissal in excess of 10 school days and any suspension or dismissal denying a pupil the right to attend school during the last 10 school days of the school year shall be subject to the approval of the county or city superintendent: Provided further, any student who is suspended or dismissed more than once during the same school term shall be subject to permanent dismissal for the remainder of the school term at the discretion of the principal, with the approval of the superintendent. In the absence of an abuse of discretion, the decision of the principal, with the approval of the superintendent, shall be final. Every suspension or dismissal for cause shall be reported at once to the superintendent and to the attendance counselor, who shall investigate the cause and deal with the offender in accordance with rules governing the attendance of children in school. (1955, c. 1372, art. 17, s. 5; 1959, c. 573, s. 12; 1963, c. 1223, s. 5; 1965, c. 584, s. 14; 1971, c. 1158).”

In its opinion the District Court encompasses the litigation and condenses its components in this paragraph:

“N.C.Gen.Stat. § 115-147 (Supp. 1971), which authorizes disciplinary expulsions, is challenged in these actions as unconstitutional. The plaintiffs urge that N.C.Gen.Stat. § 115 — 147 is vague and overbroad, that it classifies some as ineligible for public education without either a compelling state interest or a rational purpose, and that school officials apply the statute discriminatorily on the basis of race. Additionally, the plaintiffs in [one suit] maintain that Section 115 — 147 violates due process in failing to provide procedural safeguards. Relief is sought pursuant to 42 U.S.C. § 1983 with jurisdiction founded under 28 U.S.C. § 1343.” 367 F.Supp. 666, 667.

Actually, the District Court did not pass upon the merits of any of these assertions. After it had discerningly separated the several issues in the cause, the Court for reasons to be discussed in a moment refrained from decision of any of these assertions, invoking the doctrine of conditional abstention.

To start with, the challenge of procedural due process in a student’s dismissal, and the accusation of unequal protection through racial discrimination, the Court held, were considerations referable to the statute’s application and not to its constitutional vitality. Believing the resolution of these questions did not, under 28 U.S.C. § 2281, require a multijudge tribunal, the Court declined to pass upon them, dissolved the three-judge court as to them and remanded them for determinátion by a single District Judge wherever the dispute existed.

The District Court was correct, we think, in so treating the racial discrimination argument, but it mistakenly refused to pass judgment on the issue of procedural due process. This is the dictation of Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), which had not come down when the present case was before the District Court. The Supreme Court observed that since Ohio had extended to certain persons rights of public school education, just as North Carolina has done for years, the State could not rescind the grant because of student misconduct without “fundamentally fair procedures”. It held, also, that the remedial suit was appropriate for a three-judge District Court.

Hence, if the due process issue is to be evaluated in this suit the District Court must be a multijudge tribunal, 28 U.S.C. § 2281. Resolution of this issue will be subjected, however, to the same restraint as is now about to be exercised in the decision of the remaining allegations of the plaintiffs which the District Court states to be:

“ . . . that Section 115 — 147 is unconstitutional because of vagueness and overbreadth and because it operates to classify some students as uneducable without either a compelling state interest or a rational basis, . . ..” 367 F.Supp. 666, 668.

The Court believed that it should not undertake to test the North Carolina statute on the complainants’ allegations until it had been construed by the State judiciary. The District Court quite logically reasoned:

“The North Carolina Supreme Court has never been given an opportunity to construe Section 115 — 147 to limit the allegedly vague and overbroad language or to determine its validity under North Carolina statutory and constitutional law. If the plaintiffs are first required to pursue their state claim in state courts, North Carolina law provides a forum in which the plaintiffs may proceed. Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259, 263 (1971) [footnote omitted]. Under these circumstances, where the plaintiffs have a state law claim and a state forum in which to present that claim, the state law is unclear, a decision under state law might obviate the necessity of a federal constitutional determination, and a federal adjudication would thrust the federal courts into a sensitive area of state administration, the federal courts should abstain. Reid v. Board of Educ., 453 F.2d 238, 240 (2d Cir. 1971) (failure to provide special classes for all eligible children).”

Furthermore, the District Court felt assured that upon interpretation by the North Carolina courts the “vagueness and overbreadth in Section 115 — 147, if any” would be “clearly susceptible to a limiting construction that would avoid or modify any constitutional question”. It was of opinion, too, that with like study the North Carolina Court would satisfyingly refute the plaintiffs’ “contention that Section 115-147 has the effect of classifying some children as uneducable in violation of the fourteenth amendment”.

This prescience sprang from the District Court’s awareness of the provisions of the North Carolina Constitution, Articles I, § 15 (1971) and IX, § 2(1), with the activating statutes, including N.C. G.S. § 115-1 (Supp.1971). These references embody mandates for the establishment of free public schools in North Carolina, the untrammeled privilege of education for all students, and “the duty of the State to maintain and guard that right,” while guaranteeing equal opportunities to all students.

The resolve of the District Court to abstain is the theorem of Askew v. Hargrave, 401 U.S. 476, 478, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971). It is exampled in Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 510, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972):

“ . . . The paradigm case for abstention arises when the challenged state statute is susceptible of ‘a construction by the state courts that would avoid or modify the [federal] constitutional question. . . . ’ ”

Of similar import is Gibson v. Berryhill, 411 U.S. 564, 574, 93 S.Ct. 1689, 1757, 36 L.Ed.2d 488 (1973).

Abstention is the quintessence of this appeal. Cautiously the District Court reserved jurisdiction of the suit while awaiting the outcome of the State proceedings. With the exception of its ruling in respect to the want of due process, in our judgment the schedule adopted by the District Court was eminently proper and sound.

By no means overlooking the trenchancy of Judge MacMillan’s dissent, we accept the majority opinion — Craven, J. in Webster v. Perry, 367 F.Supp. 666 (1973) — as a comprehensive analysis of this litigation. It is marked by a careful choice of precedents, apt and pat.

Modified, and as modified affirmed.

      . The first of these actions was commenced in the United States District Court for the Western District of North Carolina and the other was later filed in the Middle District of North Carolina. Moreover, a three-judge court was convened on October 17, 1972 in the suit pending in the Western District. The two cases were consolidated, by agreement, for hearing before the three-judge court in the Western District on November 30, 1972. The present opinion will treat the litigation, except as otherwise noted, as a single action.

      . The occasion for two orders is that an appeal was taken both to this court and to the Supreme Court from the order of December 6, 1973. On June 17, 1974 the Supreme Court vacated that order and remanded the cause to the District Court for the Western District of North Carolina to pass a “fresh judgment”, from which an appeal could be taken to this court. The fresh judgment was passed July 31, 1974.

      . More expansive was the legislation considered by the General Assembly of North Carolina during the pendency of the present suit but not effective until July 1, 1974, after the instant decision. The statute is entitled “An Act to Establish Equal Education Opportunities in the Public Schools; and for Other Purposes,” ch. 1293, Senate Bill 1238, 1973 Session (2nd Session 1974). In general it defines in greater detail the public policy of North Carolina as to public schools and, inter alia, confers upon a child a right of review of an action or omission by the State or local authorities in the matter of education.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eugene DOBSON, Defendant-Appellant.
    No. 74-1816.
    United States Court of Appeals, Sixth Circuit.
    Feb. 20, 1975.

      John M. McKnight (Court Appointed— CJA), Knoxville, Tenn., for defendant-appellant.
    John L. Bowers, Jr., U. S. Atty., Charles N. Stedman, Knoxville, Tenn., for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
   PER CURIAM.

Eugene Dobson was tried before a jury in two consolidated cases and convicted of the unlawful possession, forgery and uttering of United States Treasury Social Security checks which had been stolen from the mail, in violation of 18 U.S.C. §§ 495 and 1708.

On appeal two contentions are made as grounds for reversal: (1) That it was error to allow a Government witness to identify the defendant in the court room when the witness had failed to identify the picture of the defendant from an array of photographs; and (2) that the evidence was insufficient to support the verdict of the jury.

The appeal came on to be considered pursuant to Sixth Circuit Rule 3(e).

Dobson was identified in the court room by Floyd Ernest Roach, owner of the Floyd Furniture Store at Knoxville, Tennessee, who cashed the stolen check. Mr. Roach testified that Dobson, had been in the store the previous evening looking at a television set. He returned the following day and stayed approximately ten minutes. He purchased a $104.95 television set, paying for it by signing and cashing a cheek which proved to be stolen and receiving $270.15 in change. Mr. Roach stated that he watched Dobson for several minutes while he was waiting outside following the transaction and that Dobson later returned to the store to use the telephone. This witness had a good opportunity to see Dobson and to become familiar with his features. Earlier in his testimony, however, Mr. Roach had selected a photograph of a different person as the one who cashed the check.

In United States v. Black, 412 F.2d 687 (6th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970), this court held that where an eyewitness was unable to pick out a defendant’s picture from an array of photographs, this did not prevent the same witness from making a positive in-court identification. This court said, speaking through Judge Weick:

The fact that eye witnesses to an occurrence cannot make a positive identification of an individual from an examination of photographs of a number of persons, does not necessarily detract from the validity of their in-court identification where they see the individual in person. The weight to be given to their in-eourt identification is for the jury to determine. 412 F.2d at 689.

To like effect see United States v. O’Neal, 496 F.2d 368, 372 (6th Cir. 1974); United States v. Toney, 440 F.2d 590 (6th Cir. 1971).

We conclude that O’Neal, Black and Toney are controlling in the present case. Appellant’s first contention is without merit.

An examination of the transcript demonstrates that there was abundant evidence to support the verdict of the jury. It was stipulated that the checks were stolen and that the payees did not know Dobson. There was more than sufficient evidence from which the jury could have concluded that Dobson possessed, forged and cashed the stolen checks.

In denying bail pending appeal, District Judge Robert L. Taylor included the following language in his order: “In the opinion of the court there is no legal basis for appeal of this case and it is taken for the purpose of delay.”

We conclude that it is manifest that the questions on which the decision of this cause depends are so unsubstantial as not to need further argument. Sixth Circuit Rule 8.

Affirmed.

      . (e) Docket Control. In the interest of docket control, the chief judge may from time to time, in his discretion, appoint a panel or panels to review pending cases for appropriate assignment or disposition under Rules 7(e), 8 or 9 or any other rule of this court.


author: ROSENN, Circuit Judge:

text:
    Janice WINNINGHAM, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al., Defendants-Appellees.
    No. 74-1730.
    United States Court of Appeals, Fifth Circuit.
    May 1, 1975.

      Elisabeth M. Youngerman, Savannah, Ga., David F. Walbert, John L. Cromartie, Jr., Atlanta, Ga., for plaintiff-appellant.

      R. Jackson B. Smith, Jr., U. S. Atty., Augusta, Ga., Lamar C. Walter, Asst. U. S. Atty., S. D. of Georgia, Savannah, Ga., for defendants-appellees.
    William H. Pinson, Jr., Savannah, Ga., for Abbitt Realty Co. & Dorothy Atkinson.
    Before THORNBERRY, COLEMAN and ROSENN , Circuit Judges.

       Of the Third Circuit, sitting by designation.

   ROSENN, Circuit Judge:

Mrs. Winningham, a resident of a “section 236” housing project in Savannah, Georgia, applied under the Housing and Urban Development Act of 1965 for financial assistance to supplement her rental payments. Section 101 of that Act authorizes rent supplements for tenants moving to a “section 236” project from substandard housing; it does not authorize rent supplements for those, such as Mrs. Winningham, who did not move into a project from substandard housing. Mrs. Winningham’s application therefore was denied. Challenging the statute’s constitutionality, she instituted a class action for a declaratory judgment in the United States District Court for the Southern District of Georgia. After determining that it had subject matter jurisdiction, the district court upheld the statute. We affirm.

I. Subject Matter Jurisdiction.

Mrs. Winningham alleged subject matter jurisdiction in the district court under various statutory provisions. 28 U.S.C. § 1331(a) (1970) (federal question); id. § 1337 (action arising under an act of Congress regulating commerce); id. § 1361 (action in the nature of mandamus); 5 U.S.C. § 701 et seq. (1970) (review under Administrative Procedure Act). The district court held that, although sections 1331(a) and 1337 did not provide a basis for jurisdiction, section 1361 did. The district court did not rule on the question of jurisdiction under the Administrative Procedure Act. Winningham v. United States Dep’t of Housing & Urban Development, 371 F.Supp. 1140 (S.D.Ga.1974).

We agree that jurisdiction could not have been exercised under the federal question statute. Nor are we persuaded that the district court had subject matter jurisdiction under section 1361. We conclude, however, that section 1337 did constitute an appropriate basis for jurisdiction.

A. Absence of Jurisdiction Under Section 1361.

The legislative history of section 1361 reveals that the statute’s construction turns upon traditional mandamus law. As an extraordinary remedy, mandamus is reserved for extraordinary situations. Will v. United States, 389 U.S. 90, 107, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (common law writ of mandamus issued by court of appeals vacated); Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969), cert. denied, 397 U.S. 941, 90 5. Ct. 953, 25 L.Ed.2d 121 (1970) (action in nature of mandamus under section 1361 dismissed). It lies only to compel the performance of a legal duty which is free of doubt. State Highway Comm’n v. Volpe, 479 F.2d 1099, 1104 n. 6 (8th Cir. 1973).

This court discussed the federal mandamus statute at some length in Carter v. Seamans, supra.

The courts that have construed Section 1361 have uniformly held that its sole function was merely to extend to all district courts the mandamus jurisdiction formerly exercised only by the District Court for the District of Columbia. The same authorities also emphasize that the provision in question did not make any substantive change in the law of mandamus. * * * * * *
It is hornbook law that mandamus is . an extraordinary remedy which should be utilized only in the clearest and most compelling of cases. Though it is a legal remedy, it is largely controlled by equitable principles and its issuance is a matter of judicial discretion. Generally speaking, before the writ of mandamus may properly issue three elements must coexist: (1) a clear right in the plaintiff to the relief sought; (2) a clear duty on the .part of the defendant to do the act in question; and (3) no other adequate remedy available.

411 F.2d at 773 (footnotes omitted).

We do not believe that the defendants herein are under a “clear duty” to declare Mrs. Winningham eligible under the rent supplement program. We recognize that some courts have construed section 1361 liberally where a constitutional duty is asserted. See Burnett v. Tolson, 474 F.2d 877, 882 (4th Cir. 1973); National Ass’n of Government Employees v. White, 135 U.S.App.D.C. 290, 418 F.2d 1126, 1129 (1969). We are unaware of any case in which an alleged constitutional duty has been held sufficiently “clear” to warrant the exercise of mandamus jurisdiction where a specific statutory provision negates that duty.

In the present case, no doubt exists that Mrs. Winningham is ineligible for a rent supplement under section 101(c)(2)(D). The defendants’ statutory duty to deny eligibility is clear. Nonetheless, Mrs. Winningham essentially asks this court to find a clear constitutional duty on the part of the defendants to ignore their statutory mandate. This we may not do.

Mrs. Winningham’s constitutional claim is grounded in the equal protection component of the due process clause of the fifth amendment. She asserts that, unless she receives a rent supplement, she will be forced to relocate in substandard housing. Therefore, she maintains, no rational basis exists for classifying her differently from those presently residing in substandard housing or from those who moved into “section 236” housing from substandard housing. As we indicate later in our discussion of the merits of this action, the “clarity” of the constitutional duty urged by Mrs. Winningham is not apparent to us. We therefore hold that section 1361 does not provide a jurisdictional basis for this action.

B. Jurisdiction Under Section 1337.

We believe that the district court had subject matter jurisdiction under section 1337. This section confers jurisdiction on district courts over certain actions involving commerce.

The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.

28 U.S.C. § 1337 (1970).

Mrs. Winningham’s action arises under section 101 of the Housing and Urban Development Act of 1965 which created the rent supplement program. Pub.L. No. 89 — 117, 79 Stat. 451^454, as amended, 12 U.S.C. § 1701s (1970). She asserts a right to receive rent supplement payments.

[This] right, if it exists, comes into being from the Federal Act and the effectual enforcement of that right depends on the validity, construction or effect of that statute.

Caulfield v. United States Dep’t of Agriculture, 293 F.2d 217, 222 (5th Cir. 1961) (en banc) (dictum), citing Gully v. First Nat’l Bank, 299 U.S. 109, 112-14, 57 S.Ct. 96, 81 L.Ed. 70 (1936). Moreover, section 1337 does not require that a minimum amount be in controversy. 293 F.2d at 222 n. 10. Thus subject matter jurisdiction existed in the district court if the Housing and Urban Development Act of 1965 is an “act regulating commerce.”

The'phrase “act regulating commerce” has been interpreted in more recent years to encompass all acts whose constitutional basis is the commerce clause of the United States Constitution. Murphy v. Colonial Federal Savings & Loan Ass’n, 388 F.2d 609, 614 (2d Cir. 1967); Imm v. Union R.R., 289 F.2d 858, 860 (3d Cir.), cert. denied, 368 U.S. 833, 82 S.Ct. 55, 7 L.Ed.2d 35 (1961). Moreover, “to found jurisdiction upon § 1337, it is not requisite that the commerce clause be the exclusive source of Federal power; it suffices that it be a significant one.” 388 F.2d at 615; see Moreno v. United States Dep’t of Agriculture, 345 F.Supp. 310, 313 (D.D.C.1972) (three-judge court), aff’d, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973).

We believe a broad construction of section 1337 is both appropriate and desirable. Federal jurisdiction over actions arising under acts of Congress governing the conduct of federal officials is conducive to more uniform decisions by tribunals which have acquired experience and expertise in dealing with national legislation. The mere fortuity that the requisite jurisdictional amount is not present has little bearing on the desirability of federal jurisdiction. Murphy v. Colonial Federal Savings & Loan Ass’n, supra, 388 F.2d at 615. When, as here, the constitutionality of a federal statute administered by a federal agency is attacked, the case for federal jurisdiction is especially compelling.

Even under the liberal construction of section 1337, however, the district court had jurisdiction in the present case only if the commerce clause was a “significant” source of federal power to enact the rent supplement program. We therefore must assess the constitutional underpinnings of the rent supplement program. To do so, we must review the historical background of our national housing legislation.

Congress originally enacted the National Housing Act in 1934. Act of June 27, 1934, ch. 847, 48 Stat. 1246. Subsequent amendments have added new housing programs such as the one authorized by section 236. The rent supplement program, however, is not part of the Nátional Housing Act, but rather was created by section 101 of the Housing and Urban Development Act of 1965.

Were section 101 an amendment to the National Housing Act, we would have less difficulty in classifying it as an act regulating commerce. The Third Circuit recently has held that the “commerce power clearly is a significant source of federal power for the National Housing Act . . . .” Davis v. Romney, 490 F.2d 1360, 1365-66 (3d Cir. 1974). Although Davis dealt only with sections 221(d)(2) and 235, we believe the court’s reasoning applies equally to other sections of the act, including section 236.

Section 101, as amended, authorizes the Secretary of Housing and Urban Development (HUD) to make annual payments to “section 236” housing owners, among others, on behalf of “qualified tenants.” 12 U.S.C. §§ 1701s(a), (h)(1)(D), 1715z-l (1970). Qualified tenants include those meeting certain financial requirements and formerly residing in substandard housing. 12 U.S.C. § 1701s(c)(l), (2)(D) (1970). Rent supplement payments may extend to no more than 20 percent of the dwelling units in a section 236 project. 12 U.S.C. § 1701s(h)(l)(D) (1970). Rent supplementation contracts with housing owners may be entered into by HUD for a period not to exceed 40 years. 12 U.S.C. § 1701s(a) (1970).

One purpose of section 101 clearly was to aid indigent residents of substandard housing, for payments are authorized on their behalf. Nonetheless, we do not believe this was Congress’ only purpose. We of course recognize that the rent supplement program is not an independent housing construction program predicated principally on Congress’ power to regulate commerce. The legislative history of section 101, however, indicates that the rent supplement program has as one of its purposes the encouragement of new construction. The Senate Report accompanying section 101, for example, acknowledged that the existing low-rent public housing program had “been unable to stimulate the construction of more than 30,000 new low rent units a year.” S.Rep.No.378, 89th Cong., 1st Sess., at 5 (1965), U.S.Code Cong. & Admin.News at 2614 (1965). The report therefore recognized a “pressing need” for additional programs such as section 101. Id. Thus, section 101 is significantly rooted in the commerce power for much the same reasons as is the National Housing Act which was designed to stimulate the housing construction industry and employment.

We believe the characterization of section 101 as an act regulating commerce is further supported by the intricate relationship between the rent supplement program and other federal housing programs. Cf. Marquez v. Hardin, 339 F.Supp. 1364, 1371 (N.D.Cal.1969) (National School Lunch Program “intricately related” to Commodities Distribution Program). The District of Columbia Circuit recently described the section 101 program as “an incentive that is piggybacked onto projects under other programs.” Pennsylvania v. Lynn, 501 F.2d 848, 850 (D.C.Cir. 1974). Since section 101 was enacted in 1965, HUD has been authorized to conclude rent supplementation contracts with owners of housing financed under sections 221(d)(3), 221(d)(5), and 231(c)(3) of the National Housing Act. Housing and Urban Development Act of 1965, § 101(b), (j), 12 U.S.C. § 1701s(b), (h) (1970). An amendment to section 101 subsequently extended the rent supplement program to housing assisted under section 236 of the National Housing Act. We note that Congress consistently has treated the rent supplement program and other national housing legislation as closely interrelated.

We are satisfied that Congress intended in part that section 101 stimulate housing construction and employment. We therefore hold that the commerce clause is a significant source of congressional power underlying the rent supplement program and that section 101 is an act regulating commerce for purposes of subject matter jurisdiction under section 1337.

II. Constitutional Claims.

The rent supplement program provides financial assistance to six categories of persons meeting specified income requirements and moving into housing financed under certain federal programs. See 12 U.S.C. § 1701s (1970); note 1 supra. This action challenges the constitutionality of that program insofar as it applies to former residents of substandard housing moving into “section 236” projects. See 12 U.S.C. § 1701s(c)(2)(D) (1970).

In December 1972, Mrs. Winningham, her second husband, and Mrs. Winning-ham’s five children by her first husband moved into Presidential Plaza, a “section 236” housing development. Although the “fair market” rent for their apartment was $161.69 per month, the Winninghams were charged only $116.46, the “basic” monthly rent. After taking up residence at Presidential Plaza, a series of misfortunes beset Mrs. Winningham, including a divorce from her second husband and the termination of child support payments from her first husband. These reverses rendered Mrs. Winning-ham unable to pay even the basic rent, which was raised to $129.00 on January I, 1974. The district court found that “Mrs. Winningham cannot afford to pay anything but a very nominal rent.” 371 F.Supp. at 1146.

Confronted with the prospect of having to move her family out of Presidential Plaza, Mrs. Winningham applied for rent supplement assistance. Such assistance would have reduced her rent to $37.00 per month. Because Mrs. Winningham previously had not occupied substandard housing and because she did not fall within any of the other five categories of eligible recipients, her application for a rent supplement was denied by the project owner.

In the present action, Mrs. Winning-ham seeks a declaration that she and all others similarly situated are eligible for rent supplement assistance. Mrs. Winningham contends that, if she is denied rent supplement assistance, she will have to move into substandard housing. She therefore claims that the rent supplement program is unconstitutional as applied to her because the statutory distinction between “section 236” tenants formerly residing in substandard housing and those such as herself who subsequently will have to locate in substandard housing is not fairly related to the object of the rent supplement program.

Mrs. Winningham’s action is founded upon the equal protection concepts embodied in the due process clause of the Fifth Amendment. See United States Dep’t of Agriculture v. Moreno, 413 U.S. 528, 533 n. 5, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Von Stauffenberg v. District Unemployment Compensation Bd., 148 U.S.App.D.C. 104, 459 F.2d 1128, 1130 (1972). We therefore must determine whether the legislative classification here at issue — occupants of substandard housing— “is rationally related to a legitimate governmental interest.” United States Dep’t of Agriculture v. Moreno, supra, 413 U.S. at 533, 93 S.Ct. at 2825.

Our review of the legislative history of the rent supplement statute reveals that the intent of Congress in providing assistance to occupants of substandard housing was at least twofold. First, Congress intended to benefit a class of persons otherwise unable to obtain standard living quarters. The Senate Report accompanying the Housing and Urban Development Act of 1965, section 101 of which created the rent supplement program, stated that the program was designed to “help provide decent, safe, and sanitary housing for thousands of families presently unable to afford anything but substandard housing.” S.Rep.No.378, 89th Cong. 1st Sess., at 3 (1965), U.S.Code Cong. & Admin.News at 2614 (1965). Second, Congress hoped to eliminate substandard housing by stimulating construction of standard housing into which present occupants of substandard housing might move with financial assistance. In this regard, the Senate Report agreed with the President’s characterization of the rent supplement program as “the most crucial new instrument in our effort to improve the American city.” Id. The program was intended to replace substandard housing with new construction by “enlisting the experience and resources of private enterprise.” Id.

When Congress provided economic assistance to occupants of substandard housing, it sought to ease the suffering of a group whose plight is particularly acute. Occupants of substandard housing have a present need of assistance substantiated by their immediate condition. Persons such as Mrs. Winningham, on the other hand, face only the possibility of being forced into substandard housing. They may well find suitable accommodations either under other governmental programs or through assistance of friends or relatives. Painful as the situation may be, Congress is not constitutionally obligated to solve all social problems, especially at one time. It may, as it did here, “select one phase of one field and apply a remedy there, neglecting the others.” Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955), quoted in Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972).

The legislative classification challenged here also bears a rational relationship to the objective of eliminating substandard housing. Congress sought to assure that the rent supplement program “would help only those families who are truly in need of assistance in obtaining standard housing . . ..” S.Rep.No.378, 89th Cong., 1st Sess., at 8 (1965), U.S.Code Cong. & Admin.News at 2614 (1965). By limiting assistance to families who actually reside in substandard housing, Congress assured that each rent supplement grant would reduce by one family the number of persons compelled to live in substandard housing.

We recognize that the classification adopted by Congress for eligibility under the rent supplement program may lack social symmetry and may result in occasional unfairness. Moreover, were we in the position of the legislature, we might have structured differently the eligibility limitations written into the statute. Our function, however, is to adjudicate, not to legislate. In the field of economics and social welfare, a statute is not unconstitutional merely because the classifications it makes are imperfect. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), quoted in Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972). We are persuaded that the classification challenged here, whatever its drawbacks, is at least rationally related to legitimate congressional objectives. We therefore hold that the statute is not vulnerable to attack on equal protection grounds.

In addition to her equal protection challenge, Mrs. Winningham contends that the rent supplement statute violates traditional notions of due process. Her argument essentially is that the statute unconstitutionally creates the irrebuttable presumption that she is less in need of rent supplement assistance than persons formerly living in substandard housing.

As we pointed out above, the rent supplement program is not designed to assist all persons of low income or in circumstances of “need.” Congress has established other programs for the disadvantaged, the dependent, and the disabled. The purpose of the rent supplement program is to eliminate substandard housing.by stimulating construction of new low-income housing units which, with financial assistance, residents of substandard housing can afford. Thus, the rent supplement statute does not create a presumption of “need,” for the satisfaction of “need” is not the legislative objective.

Mrs. Winningham relies in part on Vlandis v. Kline which invalidated a statutory presumption of fact pertaining to tuition and other fees at a state university. 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). By statute, “residency” or “nonresidency” in Connecticut determined the amount of these fees which a student was obligated to pay. The Supreme Court assumed that residency was a constitutionally valid basis upon which to differentiate between students charged higher and lower fees. However, regardless of an interim change in residency to Connecticut, the statute conclusively presumed a student to be a nonresident throughout his university career if, at the time of his application for admission to the state university, he was a nonresident. The Court held that this irrebuttable presumption violated due process since the presumption was “not necessarily or universally true in fact” and since Connecticut had “reasonable alternative means of making the crucial determination.” Id. at 452, 93 S.Ct. at 2236.

Mrs. Winningham also relies on United States Department of Agriculture v. Murry which struck down an irrebuttable presumption of fact contained in the Food Stamp Act. 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973). ' The Supreme Court accepted the criterion of “indigency” as a constitutionally valid basis for determining the eligibility of households for food stamps. The Food Stamp Act, however, contained a provision which conclusively presumed certain households not to be indigent and therefore not to be eligible for food stamps. Lack of indigency for a given year was presumed if an adult member of the household was named as a dependent in the prior taxable year by a member of another household. This presumption operated even if the household was destitute during the year in which it applied for food stamps. The Court held that the presumption violated due process because the status of one member of a household as a tax dependent in a pri- or year was not a “rational measure” of the entire household’s nonindigency during the later year. Id. at 514, 93 S.Ct. 2832.

We believe that, unlike the statutes in Vlandis and Murry, the rent supplement statute does not create a presumption of fact. In Vlandis and Murry the presumed facts which determined eligibility for a benefit were “residency” and “indigency,” respectively. In the present ease, residents of substandard housing are eligible for rent supplement assistance. Unlike the presumed facts in Vlandis and Murry, however, the fact of “residence in substandard housing” is not presumed from other facts. All residents of substandard housing, providing they meet certain income qualifications not challenged here, are eligible for rent supplement assistance on moving into “section 236” housing. Thus “residence in substandard housing” is not a presumed fact at all. Rather, it is a legislative criterion of eligibility which we earlier held to be rationally related to the legitimate objectives of the rent supplement program. Since a presumption of fact does not exist, Mrs. Winningham’s due process argument must be rejected.

Affirmed.

      . This housing project was subsidized under section 236 of the National Housing Act. 12 U.S.C. § 1715z — 1 (1970).

      . Housing and Urban Development Act of 1965, § 101, Pub.L. No. 89-117, 79 Stat. 451, as amended, 12 U.S.C. § 1701s (1970). Section 101(c) defines the tenants moving into “section 236” housing who are qualified to receive rent supplements. Section 101(c) provides in pertinent part:
      (c) As used in this section, the term “qualified tenant” means any individual or family who has, pursuant to criteria and procedures established by the Secretary, been determined—
      (1) to have an income below the maximum amount which can be established in the area, pursuant to the limitations prescribed in sections 1402(2) and 1415(7)(b)(ii) of Title 42, for occupancy in public housing dwellings; and
      (2) to be one of the following—
      (A) displaced by governmental action;
      (B) sixty-two years of age or older (or, in the case of a family to have a head who is, or whose spouse is, sixty-two years of age or over);
      (C) physically handicapped (or, in the case of a family, to have a head who is, or whose spouse is, physically handicapped);
      (D) occupying substandard housing;
      (E) an occupant or former occupant of a dwelling which is (or was) situated in an area determined by the Small Business Administration, subsequent to April 1, 1965, to have been affected by a disaster, and which has been extensively damaged or destroyed as the result of such disaster; or
      (F) a family whose head, or spouse, is a member of the Armed Forces of the United States who is serving on active duty.

      . The district court found that Mrs. Winning-ham has never occupied substandard housing and therefore “is unqualified to receive supplemental rent assistance under the language of the Act.” Winningham v. United States Dep’t of Housing & Urban Development, 371 F.Supp. 1140, 1143 (S.D.Ga.1974).

      . Mrs. Winningham also alleged that this is an action to redress a deprivation of her civil rights. See 28 U.S.C. § 1343(3) (1970). This basis of jurisdiction apparently was abandoned in the district court.

      . We note that the Fifth Circuit rule is not clear with respect to the Administrative Procedure Act as an independent basis of jurisdiction. See Young v. United States, 498 F.2d 1211 (5th Cir. 1974). But see In re School Bd of Broward County, 475 F.2d 1117 (5th Cir. 1973); City of Dallas v. Rentzel, 172 F.2d 122 (5th Cir.) (per curiam), cert. denied, 338 U.S. 858, 70 S.Ct. 99, 94 L.Ed. 525 (1949). We need not discuss this issue in view of our conclusion that jurisdiction existed under section 1337.

      . Section 1331(a) confers subject matter jurisdiction on the district courts in cases arising out of the Constitution or laws of the United States where the amount in controversy exceeds $10,000. The district court concluded that Mrs. Winningham failed to satisfy the $10,000 jurisdictional requirement. In this connection, the district court found that
      [t]he difference between the rent, with and without the supplement, is $1104.00 annually. On this basis, future annual rentals, reduced to present value, would have to be paid for over ten years to meet the jurisdictional requirement.
      371 F.Supp. at 1143 — 44. We are not convinced that the district court abused its discretion in rejecting Mrs. Winningham’s allegations of jurisdictional amount under this section. See Long v. District of Columbia, 152 U.S.App.D.C. 187, 469 F.2d 927, 933 (1972).

      . See Udall v. Oil Shale Corp., 406 F.2d 759, 765-66 (10th Cir. 1969), rev’d on other grounds, 400 U.S. 48, 91 S.Ct. 196, 27 L.Ed.2d 193 (1970); Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364, 367 (10th Cir.), cert. denied, 385 U.S. 831, 87 S.Ct. 70, 17 L.Ed.2d 67 (1966). See generally K. Davis, Administrative Law Treatise § 23.10, at 805-06 (Supp. 1970).

      . Act of June 27, 1934, ch. 847, tit. II, § 236, as added, Act of Aug. 1, 1968, Pub.L. No. 90-448, tit. II, § 201(a), 82 St at. 498, 12 U.S.C. § I715Z-1 (1970).

      . Act of Aug. 1, 1968, Pub.L.No.90-448, tit. II, § 201(e)(3), 82 Stat. 502, adding 12 U.S.C. § 1701s(h)(l)(D) (1970).

      . Section 101 itself, as enacted in 1965, not only established the rent supplement program, but also amended the Housing Act of 1949. Housing and Urban Development Act of 1965, § 101(f), (i), amending Housing Act of 1949, ch. 338, tit. I, § 114, 68 Stat. 623. Other portions of the Housing and Urban Development Act of 1965 amend the National Housing Act. See Housing and Urban Development Act of 1965, tit. I, § 102; id. tit. II.

      . The “basic” rent is determined on the basis of operating the project with payments of principal and the interest under a mortgage bearing annual interest at the rate of one percent. The tenant is charged the greater of the “basic” rent and 25 percent of his monthly income. 12 U.S.C. § 1715z-l(f) (1970); 24 C.F.R. § 236.55(a)(1), (b) (1974).

      . The district court certified the class represented by Mrs. Winningham as those persons of similar income and need for rent assistance who reside in “section 236” housing in Georgia. 371 F.Supp. at 1147.


text:
    Clara Mae BRADLEY et al., Appellants, v. HOUSING AUTHORITY OF KANSAS CITY, MISSOURI, et al., Appellees.
    Nos. 74-1464, 74-1491.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 12, 1974.
    Decided March 19, 1975.

      J. D. Riffel, Legal Aid and Defender Society, Kansas City, Mo., for appellants.
    Lloyd C. Loomis, Kansas City, Mo., for appellees.
    Before LAY and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

In December 1972, four public housing applicants filed this suit, pleaded as a class action, for declaratory and injunctive relief against the Housing Authority of Kansas City (HAKC) and the Department of Housing and Urban Development (HUD). The complaint charged that HAKC, under HUD’s directive, followed tenant selection policies which gave preference to higher-income applicants. These policies were alleged to violate the Housing Act of 1937, 42 U.S.C. § 1401 et seq., as well as the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The district court without ruling on the motion to certify the suit as a class action under Rule 23(c)(1) dismissed the case as moot after HAKC gave apartments to the named plaintiffs. Hamilton v. Housing Authority, Civ. No. 20742-3 (W.D.Mo., March 20, 1974). Costs of $540 were taxed to defendants. Both sides appealed. We affirm.

The facts are basically undisputed. Defendant HAKC owns and manages ten public housing developments in Kansas City, Missouri. Much of its funding comes from defendant HUD. In 1971, HUD directed local housing authorities to establish a specific rental rate for each apartment and to endeavor to find tenants able to pay the full established rent. Thereafter, Congress enacted the Brooke Amendment, which barred local housing authorities from charging as rent more than one-fourth of a tenant’s income. Thus, the higher the tenant’s income, the higher the rent the local housing authority could legally charge.

HAKC put these rules into effect in 1972. It rejected all otherwise eligible applicants if their income was too low to pay the full established rent. HAKC apartments were simply left vacant to await higher-income tenants. In addition, HAKC denied all applications from persons receiving Aid to Families with Dependent Children (AFDC). The named plaintiffs had all applied for HAKC housing and had been rejected or indefinitely delayed solely on the grounds that their income was too low or was derived from AFDC. In the suit filed they sought to represent other eligible applicants who had been refused housing on the same grounds.

In March 1973, when defendants filed their answer in this litigation, HAKC voluntarily changed some of the challenged policies. First, the absolute preference for higher-income tenants was dropped as to seven of the ten HAKC housing developments. Second, the rule denying applications from AFDC recipients was abandoned.

Third, and most important here, HAKC notified all named plaintiffs that they would immediately be placed in apartments, and this was done. Subsequently, as soon as additional applicants sought to intervene as plaintiffs, HAKC gave them apartments as well. It is not denied that admission of these persons “occurred not in the normal course of admission by the Housing Authority but solely because they had filed their action in the United States District Court.”

The district court dismissed the case as moot without considering certification of the class. The court held that the grant of apartments to the named plaintiffs mooted their individual claims.

After the appeal was docketed in this court, Congress amended the Housing Act of 1937 to provide, inter alia, that local housing authorities may not let apartments stand vacant to await higher-income tenants if eligible low-income tenants are available. Tit. II, § 6(c)(4)(A) Housing and Community Development Act, Pub.L. No. 93 — 383 (August 22, 1974). In view of the amendment defendants now assert on appeal that regardless of the propriety of the dismissal below, the subsequent statutory amendments moot the merits of the issue as to all possible plaintiffs. Cf. Housing Authority of Louisville v. Fletcher, 419 U.S. 812, 95 S.Ct. 27, 42 L.Ed.2d 39 (1974).

The plaintiff-appellants deny that the case is moot at least as to proposed class members. They allege that those persons suffer a continuing injury from the defendants’ now illegal past practices. It is urged that class members do not have either the apartments or the priority they should have on the waiting list due to HAKC’s actions under the old statute. At oral argument counsel for defendants stated that he was unaware of any HAKC plans to put all applicants into the places they otherwise would have had. In addition, plaintiffs urge that the case is not moot as to the proposed class even under the new Housing Act Amendment since the defendants continue to grant various preferences to higher-income tenants.

In light of the Supreme Court’s recent decisions in Board of School Comm’rs v. Jacobs, 42C U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975), and Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), we hold that the district court did not err in dismissing this action as moot. Jacobs and Sosna indicate that dismissal is required by the case or controversy provisions of Article III when the claims of all the named plaintiffs become moot before certification of the class under Fed.R.Civ.P. 23(c)(1). In view of our disposition of the appeal on this basis, we do not reach the question of the effect of the 1974 amendments to the Housing Acts of 1937 on any similar suit that might be filed by other members of the proposed class. In Sosna, the Court noted that mootness of the named plaintiff’s claim before certification of the class might not always require dismissal. The Court said:

There may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the District Court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to “relate back” to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review.

95 S.Ct. at 559.

Nevertheless, in Jacobs the Court thereafter found that an abortive determination of the class under Rule 23(c)(1) did not serve to avoid mootness where no formal certification actually took place.

In the instant case it is true that the district court failed to take action on the plaintiffs’ motions relating to the certification of the class. In addition it is conceded that the defendants deliberately mooted the issue as to the named plaintiffs or intervenors to avoid judicial review. Both of these factors militate against a finding of mootness since the issue' as to the class continued to evade review. See Weathers v. Peters Realty Corp., 499 F.2d 1197 (6th Cir. 1974); Smith v. YMCA, 462 F.2d 634 (5th Cir. 1972); Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 389 n. 83 (1974).

Notwithstanding these considerations, plaintiffs concede that if the case were remanded, substantial amendments to the complaint would have to be made relating to the alleged interests of the class under both the 1974 amendments and the former Act and regulations. Theoretically new parties would intervene. Under these circumstances, particularly in view of the absence of certification of the class, we think it serves the interests of all concerned that the remaining class begin anew and thus avoid the legal entanglements of mootness under Sosna and Jacobs. We are aware that substantial discovery had been completed in order to determine the class, but due to the statutory amendment, it is conceded that the class must be newly defined. Additionally, there no longer exists “the reality of the claim that otherwise the issue would evade review,” under the former statute since the alleged defect of the old law has been obviated. True, the question of priority of the prior class still remains but this will either be resolved by the defendants’ compliance or continue to be ripe for adjudication. We are additionally confident that in a new action the district court will follow the requirement of Rule 23(c)(1) and determine the class as soon as practicable after the commencement of the suit.

We dismiss the cross-appeal of defendants as to the allowance of costs. The district court has broad discretion in awarding costs under Fed.R.Civ.P. 54(d). Environmental Defense Fund v. Callaway, 497 F.2d 1340, 1342 (8th Cir. 1974).

Judgment affirmed. Each party is ordered to pay own costs on appeal.

      . Pub.L. 91-152, § 213(a), 83 Stat. 389, amending 42 U.S.C. § 1402(1).

      . Although not determinative here, we find that it is incumbent upon the district court under Fed.R.Civ.P. 23(c)(1) to rule “as soon as practicable after the commencement” of the suit. This was not done here. Twice during the pendency of the litigation, on March 12 and August 1, 1973, plaintiffs moved for certification of the class under Fed. R.Civ.P. 23, and all discovery relative to the class was completed on July 15, 1973. On March 12, 1973, plaintiffs had moved for a preliminary injunction as well. The district court never ruled on these motions, but instead dismissed the case as moot.

      . Fletcher contained a nearly identical class action challenge to admission policies of the Louisville, Kentucky, Housing Authority. The district court had upheld a similar economic mix policy, but the Court of Appeals reversed on the ground that that policy conflicted with the applicable (pre-amendment) statute. 491 F,2d 793 (6th Cir. 1974). The amendments were enacted before the Supreme Court passed on the petition for certiorari. On October 15, 1974, the Court granted certiorari, vacated the judgment of the Sixth Circuit, and remanded the case “for further consideration in light of” the amended statute. 95 S.Ct. at 27. Defendants urge that this shows that the Supreme Court considers the statute to have mooted this question. Fletcher does no more than raise the mootness problem; it does not settle it. In Fletcher the Court merely remanded for further consideration apparently of possible mootness, but it did not itself decide whether or not the case was moot. No oral argument was held and the parties had no opportunity to present their views on mootness to the Supreme Court.


author: PHILLIPS, Chief Judge.

text:
    Dennis MOORE, Plaintiff-Appellant, v. Eugene FOWINKLE, Commissioner, Tennessee Department of Public Health, et al., Defendants-Appellees.
    No. 74-1907.
    United States Court of Appeals, Sixth Circuit.
    March 12, 1975.

      Jerrold L. Becker, David M. Kirstein, Legal Clinic, University of Tennessee, Knoxville, Tenn., for plaintiff-appellant.
    Milton P. Rice, Atty. Gen. of Tenn., C. Haynes Cooney, Deputy Atty. Gen., Nashville, Tenn., Charles A. Maner, Jr., County Law Director, Knoxville, Tenn., for defendants-appellees.
    Before PHILLIPS, Chief Judge, EN-GEL, Circuit Judge, and DUNCAN, District Judge.

       Honorable Robert M. Duncan, Judge, United States District Court for the Southern District of Ohio, sitting by designation.

   PHILLIPS, Chief Judge.

This appeal involves the constitutionality of a Tennessee statute dealing with the problem of rented premises unfit for human habitation. Chapter 139, Public Acts of 1973, codified at T.C.A. §§ 53— 5501 to 53-5507.

The statute applies only to tenants who pay rent of $50 per week or less. As a prerequisite to obtaining relief, the tenant must have paid to the landlord all sums due and owing and must deposit with the county court clerk one month’s rent. This security deposit is returned to the tenant if the premises are found to be unfit for habitation, but, if the complaint proves to be unfounded, the deposit is forfeited to the State for the use of the county agency to which the complaint was directed.

After a complaint has been filed, a building inspector inspects the premises and the landlord is given 30 days to correct any deficiency found. If the landlord does not effect adequate repairs within this period, the tenant makes rental payments to the county court clerk for the next six months. If the premises have not been made fit for habitation within six months, all the rent is forfeited by the landlord to the State for the use of the county agency.

Dennis Moore rented a house for $95 per month. Believing that this house did not meet minimum health standards, he attempted to file a complaint with the building inspector of Knox County, Tennessee, and sought to obtain an inspection of the premises. He contended that because of his poverty he was unable to pay the security deposit of one month’s rent as required by the statute. Inspection was refused without advance payment of the deposit as required by the statute.

Thereupon Moore filed this action in the District Court seeking a declaratory judgment that the statutory requirement for a security deposit is unconstitutional.

In an opinion published at 381 F.Supp. 587 (E.D.Tenn.1974), the District Court held the requirement for a security deposit to be invalid under Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), emphasizing that the effect of the statute is to require a complaining tenant to pay a double penalty for the privilege of making a complaint, i.e., by paying a month’s rent to the county court clerk and also a month’s rent to the landlord for the same month.

There has been no appeal from that part of the decision of the District Court holding unconstitutional the requirement that a tenant make a security deposit. The judgment of the District Court on this issue is final and the question is not before this court on appeal.

The District Court further pointed out that the Act does not apply to all tenants, but is restricted to those who pay $50 a week or less for rent, and concluded: “To permit certain tenants to invoke the benefits and protection of this statute and to deny the same to others, in the absence of any reasonable basis, offends the equal protection clause of the Fourteenth Amendment.” 381 F.Supp. at 591. We hold that there is a reasonable basis for limiting the application of the Act to tenants paying not more than $50 a week for rent. This is a matter of legislative classification. See Village of Belle Terre v. Boraas, 416 U.S. 1, 8 & n. 5, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); Jefferson v. Hackney, 406 U.S. 535, 545-47, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Dandridge v. Williams, 397 U.S. 471, 484-87, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Williamson v. Lee Optical Co., 348 U.S. 483, 488 — 89, 75 S.Ct. 461, 99 L.Ed. 563 (1955).

Having found invalid both the security deposit requirement and the $50 rental classification, the District Court held the Act unconstitutional in its entirety. Since we have reversed on the classification issue, we believe that the doctrine of elision now can be applied, striking that part of the statute requiring the security deposit which was found to be invalid, and preserving the validity of the remainder of the legislation.

The statute as codified is made an appendix to this opinion, with the elided portions of T.C.A. §§ 53-5503 and 53-5506 set forth in the brackets.

The doctrine of elision is well established in Tennessee. Mayor and Aidermen v. Wilson, 212 Tenn. 55, 60, 367 S.W.2d 772 (1963); Scott v. Nashville Bridge Co., 143 Tenn. 86, 122-23, 223 S.W. 844 (1919).

Although the doctrine is not favored, Tennessee courts have applied it consistently to avoid defeat of apparent legislative intent in the enactment of a statute, where the statute upon its face discloses a fact situation that brings it within the rule. Davidson County v. Elrod, 191 Tenn. 109, 111, 232 S.W.2d 1 (1950).

When a statute contains one or more unconstitutional provisions, the obnoxious provisions will be eliminated and the statute sustained as to the rest, unless the invalid provisions are deemed so essential, and are so interwoven with others, that it cannot reasonably be presumed that the legislature intended the statute to operate otherwise than as a whole. Lindsay v. Allen, 112 Tenn. 637, 647, 82 S.W. 171 (1904).

Where an invalid provision is incidental and subordinate and can be stricken without impairing the efficacy of the act, this will be done. Kyle v. Marcom, 181 Tenn. 57, 71, 178 S.W.2d 618 (1944); Williams v. Mabry, 176 Tenn. 343, 347, 141 S.W.2d 481 (1940).

The statute contains the following severability clause:

SECTION 7. If any provision of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable. T.C.A. § 1 — 310 is as follows:
1-310. Severability of Code. — It is hereby declared that the sections, clauses, sentences and parts of the Tennessee Code are severable, are not matters of mutual essential inducement, and any of them shall be ex-scinded if the Code would otherwise be unconstitutional or ineffective. If any one or more sections, clauses, sentences or parts shall for any reason be questioned in any court, and shall be adjudged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions thereof, but shall be confined in its operation to the specific provision or provisions so held unconstitutional or invalid, and the inapplicability or invalidity of any section, clause, sentence or part in any one or more instances shall not be taken to affect or prejudice in any way its applicability or validity in any other instance [C.Supp.1950, § 27.3; modified.]

A severability clause must be taken into account in determining the legislative purpose unless observance thereof would frustrate the dominant legislative intent. Donathan v. McMinn County, 187 Tenn. 220, 237-38, 213 S.W.2d 173 (1948); Gates v. Long, 172 Tenn. 471, 480-81, 113 S.W.2d 388 (1938) (opinion by Chief Justice Grafton Green).

If possible, it is the duty of the courts to give effect to a severability clause and to make an elision, so as not to invalidate an entire act. Carr v. State ex rel. Armour, 196 Tenn. 256, 260, 265 S.W.2d 556 (1954).

The action of the Tennessee Legislature that culminated in the enactment of Chapter 139, Public Acts of 1973, originated with House Joint Resolution No. 50 adopted May 28, 1971. This resolution is as follows:

HOUSE JOINT RESOLUTION NO. 50
A RESOLUTION directing the Legislative Council Committee to study the factors contributing to the expansion and perpetuation of slum conditions in the four major cities of Tennessee.
WHEREAS, the suburbs of our cities have burgeoned while the central cities decay so that people are living in a sea of social and economic decay while affluence is around them; and
WHEREAS, The impact of various housing programs have not stopped the growth of slums nor removed the environmental disorder of slums from the cities; and
WHEREAS, The news media have given coverage to the urban ills and have drawn attention to the mounting problems of the financial woes of cities, their decayed and dangerous streets, and their slums and the need to stimulate the regeneration of cities; and
WHEREAS, The cost of allowing our central cities to deteriorate physically to a point where government subsidies are required to renew large portions of them is an economic drain; and
WHEREAS, The elimination of contributing factors, whether governmental or private, to the development and growth of slums might spur the rehabilitation and lessen the need for urban renewal or other government actions; and
WHEREAS, It should be possible to live the “good life” in either the central city or suburbia; and
WHEREAS, New programs at state and local levels may be needed for the rehabilitation and preservation of our cities; now, therefore,
BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE EIGHTY-SEVENTH GENERAL ASSEMBLY OF THE STATE OF TENNESSEE, THE SENATE CONCURRING, That the Legislative Council Committee be directed to study the factors contributing to the expansion and perpetuation of slums and urban decay of the cities of Chattanooga, Knoxville, Memphis, and Nashville and the problems of rehabilitation and renovation of these urban areas and to recommend legislation that would lead to new programs at state and local levels to eliminate these factors and problems; and to report its findings and recommendations to the Eighty-Eighth General Assembly.
BE IT FURTHER RESOLVED, That the University of Tennessee, Tennessee State University, and Memphis State University be directed to cooperate in this study.

Research is one of the functions of the Legislative Council Committee. T.C.A. § 3-404. The appellate record in the present case does not contain a copy of the report of the study conducted by the Council pursuant to House Joint Resolution No. 50. The 1973 statute by its terms reflects a legislative intent to provide a procedure for the correction of violations of minimum health standards that render low-cost rental property unfit for human habitation.

We hold that the requirement for a security deposit of one month’s rent, which the District Court found to be invalid, is incidental and subordinate to the other provisions of the statute. The remainder of the statute can be given effect without the requirement for a security deposit. In the above-quoted severability clause the legislature has declared that if any provision of the Act be held invalid, such invalidity shall not affect other provisions of the Act that can be given effect. If possible, it is our obligation to construe the statute so as to accomplish the legislative intent.

Accordingly, we reverse the decision of the District Court holding the entire Act unconstitutional. We hold that the statute as set forth in the appendix of this opinion, with the bracketed language omitted, is a valid and constitutional Act. We elide from T.C.A. § 53 — 5503 the following:

and shall have deposited with the county clerk of the county in which the complaint is to be filed a sum equal to one (1) month’s rental which sum shall be: (1) returned to the tenant upon final determination that the rented premises fails to meet the said standards or (2) forfeited by the tenant to the state for the use of the county agency to whom the complaint was directed upon a final determination that the rented premises meets the said standards.

We elide from T.C.A. § 53 — 5506 the words “deposit and” and “not including said deposit.”

Reversed. Costs are taxed against the Commissioner of the Tennessee Department of Public Health in his official capacity.

Appendix to follow

APPENDIX

CHAPTER 55 — RENTED PREMISES UNFIT FOR HABITATION

SECTION.

53-5501. Definitions.

53-5502. Minimum health standards — Establishment — Distribution.

53-5503. Complaint by tenant — Prerequisites — Contents.

53-5504. Inspection — Notice of unfitness — Repairs — Deposit of rent — Certificate of non-compliance — Forfeiture of rent.

SECTION.

53-5505. Dispossession of tenant — Vacating during repairs — Premises not repairable.

53-5506. Duties of county clerk — Fees.

53-5507. Appeal of certificate of non-compliance — Judicial review.

53-5501. Definitions. — As used in this chapter unless the context otherwise requires:

(a) “Landlord” means lessor, one under whom another holds premises as a tenant or lessee.

(b) “Tenant” means one who occupies as a residence the premises of another in subordination to that other person’s title and with his assent express or implied and whose rental payments do not exceed fifty dollai's ($50.00) per week or the monetary equivalent thereof for any period of payment other than weekly. [Acts 1973, ch. 139, § 1.]

53-5502. Minimum health standards — Establishment — Distribution. — The department of public health of the state shall establish and distribute to each county and public health department of the state minimum health standards in the rental of any premises; these standards shall establish living and building conditions of a dwelling which render it unfit for human habitation. [Acts 1973, ch. 139, § 2.]

53-5503. Complaint by tenant — Prerequisites — Contents.—Any tenant may file a complaint with the building inspector of the city or county in which the rented premises is located or with the county public health department in which said tenant’s rented premises is located where the premises are, in the opinion of the tenant who occupies same, in violation of said minimum health standards and consequently unfit for human habitation. The complaint shall be in writing and a copy shall be forwarded by certified mail to the tenant’s landlord, who is the owner of the premises. As a condition precedent to the filing of a complaint as herein provided, the tenant shall have paid all rental sums due and owing. [ and shall have deposited with the county court clerk of the county in which the complaint is to be filed a sum equal to one (1) month’s rental which sum shall be: (1) returned to the tenant upon final determination that the rented premises fails to meet the said standards or (2) forfeited by the tenant to the state for the use of the county agency to whom the complaint was directed upon a final determination that the rented premises meets the said standards.] [Acts 1973, ch. 139, § 2.]

53-5504. Inspection — Notice of unfitness — Repairs — Deposit of rent — Certificate of noncompliance — Forfeiture of rent. — The building inspector or the county public health department to whom the complaint is directed shall, within fourteen (14) days of the filing of a complaint, make an inspection of the rented premises. If it is found that said unit is unfit for human habitation, as defined, the building inspector or county public health department shall notify the landlord of the premises of the violation found, in writing, by certified mail, and a copy shall be forwarded to the tenant. The notice, in addition to setting out the condition found, shall give the landlord of the premises thirty (30) days in which to correct the condition. If at the expiration of the thirty (30) day period, as determined by an inspection of the premises by the building inspector or by the county public health department, which inspection shall be made within seven (7) days of the expiration of said period, the landlord of the premises has not corrected the condition, the tenant shall pay to the county clerk of the county wherein the premises is located the rental payments which may become due from that date. If the landlord of the premises has not corrected the condition at the expiration of six (6) months from the date of the first notice, as determined by an inspection of the premises by the building inspector or county public health department, which inspection shall be made within seven (7) days of the expiration of said period, the rental payments so made by the tenant to the county court clerk shall, upon a certificate of noncompliance being filed with the county court clerk by the building inspector or the county public health department, which certificate shall be filed within fourteen (14) days of the expiration of said period, a copy of which shall be forwarded by certified mail to the landlord, be forfeited by the landlord of the premises to the state for the use of the agency to whom the complaint was directed and the county court clerk shall, at the expiration of a thirty (30) day period from the date the certificate of noncompliance is filed where no appeal has been filed by the landlord as provided herein, pay to the state for the use of the county agency to whom the complaint was directed, less all fees as hereinafter provided, the rental payments so held. If an appeal is filed by the landlord, the sums so held by the county court clerk shall remain on deposit in the special account pending the final determination of the appeal. If the landlord of the premises shall have corrected the condition, as determined by an inspection of the premises by the building inspector or the county public health department, the county court clerk shall, upon receiving a certificate of compliance from the building inspector or the county public health department, which certificate shall be filed within fourteen (14) days of the expiration of said period, return the rental payments so held to the landlord of the premises. [Acts 1973, ch. 139, § 3.]

53-5505. Dispossession of tenant — Vacating during repairs— Premises not repairable. — No tenant shall be dispossessed of the rented premises or otherwise penalized by the landlord of the premises for prosecuting any complaint under or pursuant to this chapter, or for payment to the county court clerk of rental payments where the rented premises is in violation of the standard, as defined herein. However, in the event it is necessary to temporarily vacate the premises to carry out repairs, the landlord may get temporary possession from the tenant, and the tenant’s rent will be abated during this period and resume upon his moving back into the premises. In the event the conditions are such that to repair the building is not feasible, the landlord shall notify the tenant and the agency to which the complaint was directed that he has elected not to repair the structure and shall give the tenant thirty (30) days’ notice to vacate the premises. Thereafter the premises shall not be rented or used as a human habitation unless and until said condition of violation is corrected. [Acts 1973, ch. 139, § 4.]

53-5506. Duties of county clerk — Fees. — The county court clerk of each county of the state is authorized and directed to accept the [deposit and] rental payment sums as provided herein and shall deposit such sums in a special account and shall account for such sums, as provided by law to account for such other sums in his possession. The county court clerk, for his services, shall receive the sum of five per cent (5%) from all such rental payment sums, [not including said deposit,] which are forfeited to the state for the use of the county agency to whom the complaint was directed. [Acts 1973, ch. 139, § 5.]

53-5507. Appeal of certificate of noncompliance — Judicial review. — The landlord of the premises shall have the right to appeal the findings of the building inspector or of the county public health department to the county board of health of the county in which the premises is located. Where the county has no county board of health, the appeal shall be made to the county judge of the county in which the premises is located. The appeal shall be made within thirty (30) days from the date of the filing of the certificate of noncompliance. The landlord shall have the right, after the determination by the county board of health or the county judge, of appeal to the circuit court of the county in which the premises is located. An appeal shall be heard de novo in the circuit court. [Acts 1973, ch. 139, § 6.]

Effective Date. Acts 1973, ch. 139, § 8. May 1,1973.