Housing Authority of City of Charlotte, In re

• Citation: 233 N.C. 649,65 S.E.2d 761
• Decision Date: 07 June 1951
• Docket Number: No. 522,522
• Court: United States State Supreme Court of North Carolina
• Parties: In re HOUSING AUTHORITY OF CITY OF CHARLOTTE.

Page 761

65 S.E.2d 761

233 N.C. 649

In re HOUSING AUTHORITY OF CITY OF CHARLOTTE.

No. 522

Supreme Court of North Carolina.

June 7, 1951

Lassiter & Moore and Elmer E. Rouzer, all of Charlotte, for petitioner.

Harry McMullan, Atty. Gen., and John H. Paylor, Asst. Atty. Gen., amicus curiae.

Elbert E. Foster, Charlotte, for respondents McKnight and Porter.

Goodman & Goodman, Sol Levine and Wendell R. Wilmoth, all of Charlotte, for respondents other than McKnight and Porter.

DENNY, Justice.

This Court upheld the constitutionality of the Housing Authorities Law enacted by the General Assembly in 1935, being Chapter 456 of the Public Laws of 1935, and codified in our General Statutes in Sections 157-1 to 157-60, inclusive, in the case of Wells v. Housing Authority, 213 N.C. 744, 197 S.E. 693. It was there decided that a housing authority created pursuant to the provisions of the Housing Authorities Law is a municipal corporation; that the act comprehends a public governmental purpose, and that the it with a governmental function. This decision has been followed and approved in Cox v. City of Kinston, 217 N.C. 391, 8 S.E.2d 252, and in Mallard v. Eastern Carolina Regional Housing Authority, 221 N.C. 334, 20 S.E.2d 281.

The respondents do not contend that the proposed project is not needed in the City of Charlotte, or that the proposed construction of 400 low- rent dwelling units by the Housing Authority of the City of Charlotte is not in the public interest and necessary for public use. The findings of the petitioner in this respect are not challenged. Furthermore, it is stipulated that the Housing Authority of the City of Charlotte is a corporation, duly established and existing in conformity with the provisions of the Housing Authorities Law, and that it did pass an appropriate resolution as a prerequisite to the institution of this proceeding, as required by G.S. §§ 157-11 and 157-50. Therefore, it is conceded by all parties that the Housing Authority of the City of Charlotte has found that the acquisition of the property which it seeks to acquire by eminent domain is in the public interest and necessary for public use.

However, in the hearing below, the respondents challenged the validity of the proceeding on the ground that the petitioner had failed to observe all the statutory requirements governing such project or projects. And the court concurred in this view and held the certificate of public convenience and necessity was null and void because the application of the Housing Authority of the City of Charlotte, for such certificate, did not sufficiently describe the situs of the property to be taken in the condemnation proceeding as a site for the proposed housing project; and, also held that the Utilities Commission must hold a hearing before issuing a certificate of public convenience and necessity, but that the individual respondents were not entitled to any notice with respect thereto.

The respondents base their contentions on the provision contained in the following statute: 'Notwithstanding any finding of public convenience and necessity, either in general or specific, by the terms of this article, the right of eminent domain shall not be exercised unless and until a certificate of public convenience and necessity for such project has been issued by the Utilities Commission of North Carolina, and the proceedings leading up to the issuing of such certificate of public convenience and necessity, and the right to appeal therefrom shall be as now provided by law and said rights are hereby expressly reserved to all interested parties in said proceedings. In addition to the powers now granted by law to the Utilities Commission of North Carolina, the said Utilities Commission is hereby vested with full power and authority to investigate and examine all projects set up or attempted to be set up under the provisions of this article and determine the question of the public convenience and necessity for said project.' G.S. § 40-53.

These identical provisions are also contained in G.S. §§ 157-28, -45 and 51.

The Housing Authority of the City of Charlotte, acting in cooperation with the City of Charlotte, is subject to the provisions set forth in G.S. § 157-40 and subsequent sections in the Housing Authorities Law. In G.S. § 157-40 and in G.S. § 157-48, the Legislature of North Carolina made a finding and declaration of necessity with respect to the need for safe and sanitary dwelling accommodations for persons of low income. The Legislature also made a similar finding which is contained in G.S. § 40-31, which is a part of the Public Works Eminent Domain Law. This law defines a 'public works project' as any work or undertaking which is financed in whole or in part by a federal agency, as therein defined, or by a state public body, as therein defined, G.S. § 40-32(a). While it is said in the Housing Authorities Law, G.S. § 157-3(10): "Housing project' shall include all real and personal property, buildings and improvements, stores, offices, lands for farming and gardening, and community facilities acquired or constructed or to be acquired or constructed pursuant to a single plan or undertaking (a) to demolish, clear, remove, alter or repair unsanitary or unsafe housing, and/or (b) to provide safe and sanitary dwelling accommodations for persons of low income. The term 'housing project' may also be applied to the planning of the buildings and improvements, the acquisition of property, the demolition of existing structures, the construction, reconstruction, alteration and repair of the improvements and all other work in connection therewith. ' And in G.S. § 157-41(4), it is provided that a "housing project' shall mean any undertaking (a) to demolish, clear, remove, alter or repair unsafe or insanitary housing, and/or (b) to provide dwelling accommodations for persons of low income, and said term may also include such buildings and equipment for recreational or social assemblies for educational, health or welfare purposes, and such necessary utilities as are designed primarily for the benefit and use of the housing authority and/or the occupants of such dwelling accommodations.'

We think the finding of public convenience and necessity, either in general or specific terms, as pointed out in G.S. § 40-53, has reference to any finding made 'either in general or specific' terms by the Legislature and set forth in the Housing Authorities Law, which finding shall not be sufficient to warrant the exercise of eminent domain in connection with any project authorized thereby. But a certificate of public convenience and necessity for such project must be obtained from the Utilities Commission--that is, the public need for such a project in a particular community must be made to appear and a certificate of public convenience and necessity must be obtained before the petitioner may proceed to condemn property for such a project. We do not think, however, that it was the legislative intent to require a petitioner to select and describe in detail the land it might need for the construction of a proposed project before it ascertained whether or not it would be permitted to proceed with the project.

It is contended by the respondents that if the petitioner was not required to inform the Utilities Commission as to the specific property it proposed to condemn as a site for its housing project, at the time it applied for a certificate of public convenience and necessity, it is conceivable that the Housing Authority of the City of Charlotte, after obtaining such certificate, might have proceeded to condemn the property surrounding the intersection of Trade and Tryon Streets in the City of Charlotte, as a site for its housing project, if it had so desired. However it would be difficult to conceive how the officials of the Housing Authority of the City of Charlotte could find in good faith that the acquisition of such property was in the public interest and necessary for public use. Moreover, there is a presumption that public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law. Kirby v. Stokes County Board of Education, 230 N.C. 619, 55 S.E.2d 322; 31 C.J.S., Evidence, § 146, p. 799, et seq., and cited cases.

We know of no statutory requirement to the effect that the application of a housing authority for a certificate of public convenience and necessity in this State must contain a description of the property upon which the low-rent dwellings are to be located, or to require notice to the owners of such property of the filing of an application for such certificate. The statute does not provide for the North Carolina Utilities Commission to select or approve the selection of the site for a housing project. On the contrary, the selection of a site for such project is vested in the housing authority. In State ex rel. Porterie v. Housing Authority, 190 La. 710, 182 So. 725, 740, the court, in considering the resolution to the effect that certain realty was necessary for a housing project, said: 'What this provision means is that a housing authority, and not the administrative or executive department of a city, is to determine the propriety of locating a project in any particular part of the city, and that, as to that, the decision of the housing authority is conclusive.'

It is our opinion, however, and we so hold that if a local housing authority should act in bad faith in the selection of a site for a housing project, that is, if it should act arbitrarily, capriciously or fraudulently in making such selection, such action may be challenged in the proceedings to condemn the property. G.S. § 40-36. But in the absence of an allegation charging that the action of the local housing authority was arbitrary, capricious or fraudulent, the selection of a site for a housing project will not be disturbed. Brammer v. Housing Authority, 239 Ala. 280, 195 So....