Housing Authority of City of Salisbury, Project NC-16-2, In re

• Citation: 235 N.C. 463,70 S.E.2d 500
• Decision Date: 30 April 1952
• Docket Number: No. 385,NC-16-2,385
• Parties: In re HOUSING AUTHORITY OF CITY OF SALISBURY, PROJECT
• Court: United States State Supreme Court of North Carolina

Page 500

70 S.E.2d 500

235 N.C. 463

In re HOUSING AUTHORITY OF CITY OF SALISBURY, PROJECT NC-16-2.

No. 385

Supreme Court of North Carolina.

April 30, 1952

Max Busby, Salisbury, for petitioner, Housing Authority of City of Salisbury, appellant.

Clement & Clement and Woodson & Woodson, Salisbury, for respondent, Trustees of Livingstone College, appellee.

JOHNSON, Justice.

In determining what property is necessary for a public housing site, a broad discretion is vested by statute in housing authority commissioners, to whom the power of eminent domain is delegated. G.S. § 157-11; G.S. § 157-50; G.S. § 40-37.

Indeed, so extensive is this discretionary power of housing commissioners that ordinarily the selection of a project site may become an issuable question, determinable by the court, on nothing short of allegations charging arbitrary or capricous conduct amounting to abuse of discretion. See Yadkin River Power Co. v. Wissler, 160 N.C. 269, 76 S.E. 267, 43 L.R.A., N.S., 483; Pue v. Hood, Com'r of Banks, 222 N.C. 310, page 315, 22 S.E.2d 896. However, allegations charging malice, fraud, or bad faith in the selection of a housing project site are not essential to confer the right of judicial review. It suffices to allege and show abuse of discretion. The distinction here drawn is not at variance with the decision reached in Re Housing Authority of the City of Charlotte, 233 N.C. 649, headnote 2, 65 S.E.2d 761, headnote 4.

The constitutionality of these public housing statutes has been upheld. In re Housing Authority of the City of Charlotte, supra; Wells v. Housing Authority, 213 N.C. 744, 197 S.E. 693; Cox v. City of Kinston, 217 N.C. 391, 8 S.E.2d 252; 172 A.L.R. 966, Annotation.

The allegations set out in the amendment to the answer filed by the respondent, Livingstone College, though couched in language of commendable moderation, are sufficient put to test, for determination by the court, the question whether the action of the Housing Commissioners in selecting the campus site was arbitrary or capricious amounting to a manifest abuse of discretion.

The Housing Authority stressfully contends that the question whether its Commissioners acted arbitrarily or capriciously in the selection of the campus site was a question of fact not triable by jury, but reviewable only by the presiding Judge on appeal from the Clerk. It is urged that the court below committed prejudicial error in submitting this question to the jury.

Conceding, as we may, that the issuable question thus presented was a question of fact reviewable by the presiding Judge, Madison County Railway Co. v. Gahagan, 161 N.C. 190, 76 S.E. 696; McIntosh, North Carolina Practice and Procedure, pp. 542, 543, nevertheless, it was within the discretionary power of the Judge to submit the question to the jury for determination. Selma v. Noble, 183 N.C. 322, 111 S.E. 543; Carter v. Carter, 232 N.C. 614, page 617, 61 S.E.2d 711; Barker v. Humphrey, 218 N.C. 389, 11 S.E.2d 280. See also G.S. § 1-172.

Besides, the record reflects no exception to the action of the trial Judge in calling to his aid the jury. Indeed, the pre-trial statement of the Judge indicates that counsel for both sides assumed the question at issue would be submitted to the jury, and issues were tendered by each side. It is true the Housing Authority excepted to the issue as submitted, but an examination of the record indicates that the exceptions here relied on relate (1) to the refusal of the court to submit the issue tendered by counsel for the Housing Authority and (2) to the form of the issue as formulated and submitted by the court. There is no exception to the action of the court in respect to the basic question of jury trial. R. pp. 15, 48, 49. Therefore, the instant challenge, being unsupported by an exception, may not be asserted successfully for the first time on appeal. Thompson v. Thompson, 235 N.C. 416, 70 S.E.2d 495. An appeal ex necessitate follows the theory of the trial. Wilson v. Hood, 208 N.C. 200, 179 S.E. 660. It has been said that 'the law does not permit parties to swap horses between courts in order to get a better mount in the Supreme Court. ' Weil v. Herring, 207 N.C. 6, page 10, 175 S.E. 836, 838.

The issue formulated and submitted by the presiding Judge adequately presented the issuable question raised by the pleadings. Therefore, the petitioner's exception to the issue is without merit.

Next, the Housing Authority insists that the trial court erred in denying its motion, and refusing to give its prayer for special instruction, for a directed verdict. These exceptive assignments test the sufficiency of the evidence to support the verdict and require an examination of what in law amounts to 'arbitrary' or 'capricious' conduct on the part of the Housing Commissioners.

'Arbitrary' means fixed or done capriciously or at pleasure. An act is arbitrary when it is done without adequate determining principle; not done according to reason or judgment, but depending upon the will alone,--absolute in power, tyrannical, despotic, non-rational,--implying either a lack of understanding of or a disregard for the fundamental nature of things. See Funk & Wagnalls New Standard Dictionary; 3 Words and Phrases, pages 874 and 875; 6 C.J.S., page 145.

'Capricious' means freakish, fickle, or arbitrary. An act is capricious when it is done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles. See Funk & Wagnalls New Standard Dictionary; 6 Words and Phrases, page 124; 12 C.J.S., page 1137.

'Arbitrary' and 'capricious' in many respects are synonymous terms. When applied to discretionary acts, they ordinarily denote abuse of discretion, though they do not signify nor necessarily imply bad faith.

Since the exception to the refusal of the court to direct a verdict tests only the sufficiency of the evidence to carry the case to the jury as an open question, it would serve no useful purpose to recapitulate all the evidence, pro and con, bearing on the issue. Suffice it to say, the respondent College offered evidence tending to show these controlling factors:

(1)That Livingstone College has been located in Salisbury, North Carolina, since about 1885. For many years the College has been maintained by the A. M. E. Zion Church and private donations from individuals and charitable foundations throughout the United States. Its campus, containing about 40 acres, is located in the West Ward of the City of Salisbury, bounded on the east by Craig the West Ward of the City of Salisbury, bounded on the east by Craig west by McCoy Street, and on the north by West Monroe Street.

(2)Representatives of the Housing Authority contacted officials of the College with a view of acquiring a housing site on the western side of the campus. The College Board of Trustees, after considering the proposal, reached the conclusion and so notified the Housing Authority that they could not consent for any part of the campus to be put to use as a public housing site, but suggested that the project might be located on the college farm property of 269 acres located some 1,450 feet west of the campus, accessible by...