PARKER, J.
The basis of the Housing Authority’s motion to strike Sections 1, 3, 6, 7, 8, 9, and 10 from respondents’ further answer and defense contained in their amended answer is that the facts therein alleged constitute no legal defense to its special proceeding to condemn respondents’ land. The stricken allegations are in substance a plea in bar that denies the Housing Authority’s right to condemn their land, and which, if established, will destroy its right.
Mercer v. Hilliard,
249 N.C. 725, 107 S.E. 2d 554;
In re Housing Authority of the City of Salisbury,
235 N.C. 463, 70 S.E. 2d 500. In substance and in effect, but not in form, the Housing Authority’s motion to strike is a demurrer to what is in substance a plea in bar. Such being the case, Judge Copeland’s order affirming the clerk’s order allowing the Housing Authority’s motion to strike in its entirety affects a substantial right of respondents, and they may appeal therefrom, and Rule 4(a), Rules of Practice in the Supreme Court, 254 N.C. 783, 785, is not applicable. G.S. 1-277;
Mercer v. Hilliard, supra.
Respondents state in their brief: “Respondents contend that by their further answer and defense they have alleged facts which show the Housing Authority of the City of Wilson has acted in bad faith in the selection of a site or sites for its housing projects.”
This Court said in
In re Housing Authority of the City of Charlotte,
233 N.C. 649, 660, 65 S.E. 2d 761, 769:
“In the selection of a location for a housing project as authorized under the Housing Authorities Law, the project may be built either in a slum area which has been cleared, or upon other suitable site. The housing authority is given wide discretion in the selection and location of a site for such project.
Housing Authority v. Higginbotham,
135 Texas 158, 143 S.W. 2d 79, 130 A.L.R. 1053;
Riggin v. Dockweiler,
15 Cal. 2d 651, 104 P. 2d 367;
Chapman v. Huntington W. Va. Housing Authority,
121 W. Va. 319, 3 S.E. 2d 502;
Stockus v. Boston Housing Authority,
304 Mass. 507, 24 N.E. 2d 333;
Housing Authority of the City of Oakland v. Forbes,
51 Cal. A. 2d 1, 124 P. 2d 194. And the fact that a few isolated properties in an area may be taken and dismantled which are above the standard of slum properties, or that some few desirable homes will be taken, will not affect the public character of the condemnation proceeding.
Blakemore v. Cincinnati Metropolitan Housing Authority,
74 Ohio App. 5, 57 N.E. 2d 397;
In re Edward
J. Jeffries Home Housing Project of Detroit,
306 Mich. 638, 11 N.W. 2d 272.”
An examination of the cases cited by this Court shows that they support this Court's statement of law. To the same effect are the following cases:
David Jeffrey Co. v. City of Milwaukee,
267 Wis. 559, 66 N.W. 2d 362 (1954);
State v. Rich,
159 Ohio St. 13, 110 N.E. 2d 778 (1953), which cites our case of
In re Housing Authority of the City of Charlotte, supra; Ferch v. Housing Authority of Cass County,
79 N.D. 764, 59 N.W. 2d 849 (1953);
Scheuer v. Housing Authority of City of Cartersville,
214 Ga. 842, 108 S.E. 2d 264 (1959);
Carroll v. City of Camden,
34 N.J. 575, 170 A. 2d 417 (1961).
In
Ferch v. Housing Authority of Cass County, supra,
the Supreme Court of North Dakota said:
“The plaintiff complains that the condemnation of land for new housing outside the slum area as in’ the instant case could not be held to be for a public purpose and therefore violates said sections of the state and federal Constitutions. If that were so, the purpose of the Act would in many instances be thwarted. There may be many reasons why the new project should not be built in the slum area, such as the topography, drainage and lack of space. In the case of
Chapman v. Huntington Housing Authority,
121 W. Va. 319, 3 S.E. 2d 502, 509, the court says:
“ ‘The projects may be built in any area within the exercise of sound discretion of the federal and state authorities and the council of the City of Huntington, whether slum or not slum. They are simply low-cost-housing projects, incidental to slum clearance. In some cities it is quite conceivable that slums exist in low-water areas. Equally, it is quite inconceivable that public moneys in large amounts should be expended to build modern dwelling units where they will be subject to and endangered by rising waters.’
“In
Riggin v. Dockweiler,
15 Cal. 2d 651, 104 P. 2d 367, the court said:
“ ‘In working out the problem of low-cost housing, it may appear that the clearance of a slum area is desirable because the dwellings in use are insanitary, or present fire hazards or are maintained under such conditions that their removal would be in the interest of the public welfare. Also, the location may be an undesirable one for dwellings. Where such circumstances exist, it would be folly to require the new buildings to be constructed at the old location, and compel the new units to be crowded into the space taken up by those cleared away. Such an interpretation of the
housing act would thwart the very purposes for which it was passed and effectively block slum clearance in districts where the problem is most acute.’ See also
Thomas v. Housing & Redevelopment Authority,
234 Minn. 221, 48 N.W. 2d 175, 188;
Keyes v. United States,
73 App. D.C. 273, 119 F. 2d 444, Id., 314 U.S. 636, 62 S. Ct. 70, 86 L. Ed. 510.”
In
In re Housing Authority of the City of Salisbury, supra,
this Court said:
“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 capricious conduct amounting to abuse of discretion. See
Power Co. v. Wissler,
160 N.C. 269, 76 S.E. 267;
Pue v. Hood, Comr. of Banks,
222 N.C. 310, p. 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
In re Housing Authority of the City of Charlotte,
233 N.C. 649 (headnote 2), 65 S.E. 2d 761 (headnote 4).”
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PARKER, J.
The basis of the Housing Authority’s motion to strike Sections 1, 3, 6, 7, 8, 9, and 10 from respondents’ further answer and defense contained in their amended answer is that the facts therein alleged constitute no legal defense to its special proceeding to condemn respondents’ land. The stricken allegations are in substance a plea in bar that denies the Housing Authority’s right to condemn their land, and which, if established, will destroy its right.
Mercer v. Hilliard,
249 N.C. 725, 107 S.E. 2d 554;
In re Housing Authority of the City of Salisbury,
235 N.C. 463, 70 S.E. 2d 500. In substance and in effect, but not in form, the Housing Authority’s motion to strike is a demurrer to what is in substance a plea in bar. Such being the case, Judge Copeland’s order affirming the clerk’s order allowing the Housing Authority’s motion to strike in its entirety affects a substantial right of respondents, and they may appeal therefrom, and Rule 4(a), Rules of Practice in the Supreme Court, 254 N.C. 783, 785, is not applicable. G.S. 1-277;
Mercer v. Hilliard, supra.
Respondents state in their brief: “Respondents contend that by their further answer and defense they have alleged facts which show the Housing Authority of the City of Wilson has acted in bad faith in the selection of a site or sites for its housing projects.”
This Court said in
In re Housing Authority of the City of Charlotte,
233 N.C. 649, 660, 65 S.E. 2d 761, 769:
“In the selection of a location for a housing project as authorized under the Housing Authorities Law, the project may be built either in a slum area which has been cleared, or upon other suitable site. The housing authority is given wide discretion in the selection and location of a site for such project.
Housing Authority v. Higginbotham,
135 Texas 158, 143 S.W. 2d 79, 130 A.L.R. 1053;
Riggin v. Dockweiler,
15 Cal. 2d 651, 104 P. 2d 367;
Chapman v. Huntington W. Va. Housing Authority,
121 W. Va. 319, 3 S.E. 2d 502;
Stockus v. Boston Housing Authority,
304 Mass. 507, 24 N.E. 2d 333;
Housing Authority of the City of Oakland v. Forbes,
51 Cal. A. 2d 1, 124 P. 2d 194. And the fact that a few isolated properties in an area may be taken and dismantled which are above the standard of slum properties, or that some few desirable homes will be taken, will not affect the public character of the condemnation proceeding.
Blakemore v. Cincinnati Metropolitan Housing Authority,
74 Ohio App. 5, 57 N.E. 2d 397;
In re Edward
J. Jeffries Home Housing Project of Detroit,
306 Mich. 638, 11 N.W. 2d 272.”
An examination of the cases cited by this Court shows that they support this Court's statement of law. To the same effect are the following cases:
David Jeffrey Co. v. City of Milwaukee,
267 Wis. 559, 66 N.W. 2d 362 (1954);
State v. Rich,
159 Ohio St. 13, 110 N.E. 2d 778 (1953), which cites our case of
In re Housing Authority of the City of Charlotte, supra; Ferch v. Housing Authority of Cass County,
79 N.D. 764, 59 N.W. 2d 849 (1953);
Scheuer v. Housing Authority of City of Cartersville,
214 Ga. 842, 108 S.E. 2d 264 (1959);
Carroll v. City of Camden,
34 N.J. 575, 170 A. 2d 417 (1961).
In
Ferch v. Housing Authority of Cass County, supra,
the Supreme Court of North Dakota said:
“The plaintiff complains that the condemnation of land for new housing outside the slum area as in’ the instant case could not be held to be for a public purpose and therefore violates said sections of the state and federal Constitutions. If that were so, the purpose of the Act would in many instances be thwarted. There may be many reasons why the new project should not be built in the slum area, such as the topography, drainage and lack of space. In the case of
Chapman v. Huntington Housing Authority,
121 W. Va. 319, 3 S.E. 2d 502, 509, the court says:
“ ‘The projects may be built in any area within the exercise of sound discretion of the federal and state authorities and the council of the City of Huntington, whether slum or not slum. They are simply low-cost-housing projects, incidental to slum clearance. In some cities it is quite conceivable that slums exist in low-water areas. Equally, it is quite inconceivable that public moneys in large amounts should be expended to build modern dwelling units where they will be subject to and endangered by rising waters.’
“In
Riggin v. Dockweiler,
15 Cal. 2d 651, 104 P. 2d 367, the court said:
“ ‘In working out the problem of low-cost housing, it may appear that the clearance of a slum area is desirable because the dwellings in use are insanitary, or present fire hazards or are maintained under such conditions that their removal would be in the interest of the public welfare. Also, the location may be an undesirable one for dwellings. Where such circumstances exist, it would be folly to require the new buildings to be constructed at the old location, and compel the new units to be crowded into the space taken up by those cleared away. Such an interpretation of the
housing act would thwart the very purposes for which it was passed and effectively block slum clearance in districts where the problem is most acute.’ See also
Thomas v. Housing & Redevelopment Authority,
234 Minn. 221, 48 N.W. 2d 175, 188;
Keyes v. United States,
73 App. D.C. 273, 119 F. 2d 444, Id., 314 U.S. 636, 62 S. Ct. 70, 86 L. Ed. 510.”
In
In re Housing Authority of the City of Salisbury, supra,
this Court said:
“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 capricious conduct amounting to abuse of discretion. See
Power Co. v. Wissler,
160 N.C. 269, 76 S.E. 267;
Pue v. Hood, Comr. of Banks,
222 N.C. 310, p. 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
In re Housing Authority of the City of Charlotte,
233 N.C. 649 (headnote 2), 65 S.E. 2d 761 (headnote 4).”
This is the question for decision: Admitting, for the purpose of passing on the Housing Authority’s motion to strike sections 1, 3, 6, 7, 8, 9, and 10 from respondents’ further answer and defense contained in their amended answer (which is in substance and effect a demurrer to what is in substance a plea in bar to the Housing Authority’s right to condemn respondents’ land in this special proceeding), the truth of factual averments well stated, and such legitimate inferences as may be drawn therefrom, but not admitting any legal inferences or conclusions of law asserted by the pleader, were the stricken allegations sufficient to put to the test for judicial review by Judge Copeland, whether the action of the Housing Authority in selecting the area for the site of its Project No. N. C. 20-2 and in including respondents’ land therein was arbitrary or capricious amounting to a manifest abuse of the wide discretion vested in it in the selection and location of a site for its Project No. N. C. 20-2? The definition of what in law amounts to “arbitrary” or “capricious” conduct on the part of a Hous
ing Authority is set forth in
In re Housing Authority of the City of
Salisbury,
supra.
The answer is, No.
The stricken allegations allege in substance these facts: The property of respondents, and in fact more than 90% of the property within the area selected for the site of Housing Project No. N. C. 20-2, consist of cleared land, and the few houses therein are not slum houses. The boundary lines of this project were drawn adjacent to, but excluding areas that are the most congested slum areas of the city of Wilson. A survey in the city did not include their land. The Housing Authority has other suitable sites in the city where it can construct dwelling units, for instance, where the survey disclosed over 1200 dilapidated buildings which are adjacent to and on all sides of its project. The first housing project selected and purchased by petitioner, and on which the erection of rental units has commenced, consists entirely of about 25 acres of cleared land on which there was no building. On one side of its proj ect is one of the worst slum areas in the city. The Housing Authority has selected a third site, and has requested the city planning board to approve it as a site for a third project, which site is a cleared field outside of the city limits and adj acent to a slum area.
The remainder of the stricken allegations allege inferences of fact, and inferences and conclusions of law, which inferences, in our opinion, are
non sequitur,
and which conclusions of law are not supported by the allegations of fact, for instance: The Housing Authority’s selection of their land for condemnation is arbitrary and capricious, because their land is not a slum area in the city of Wilson. The Housing Authority refuses to remove the slum areas, because their property selected for condemnation has no dilapidated buildings on it, and is cleared land. The public will not benefit from the construction of dwelling units on cleared land, because of the existence of over 1200 dilapidated dwellings within the city of Wilson. A selection of sites in the slum area will benefit the residents of the city and fulfill the purpose of the Housing Authorities Act. The entire plan and scheme of the Plousing Authority is not to eliminate slum dwellings in the city, but to engage in the private enterprise of rental units. The Housing Authority in seeking their land does not contemplate the removal of any of these dilapidated buildings, because it is seeking to obtain cleared land to save the expense of removing these dilapidated buildings, and such conduct perpetrates a fraud upon the residents of the city of Wilson, and is not in the public interest, and is arbitrary and capricious.
The gravaman of respondents’ contention and complaint is that the Housing Authority in selecting its land for condemnation with
other land adjacent to it, which consists of 90% cleared land, instead of picking a slum site for its Project No. N. C. 20-2, acted arbitrarily and capriciously amounting to a manifest abuse of discretion. Upon the record before us the contention is untenable. There is nothing in the law in this jurisdiction that requires housing projects to be located only where slum districts exist. The object of our Housing Authorities Act is to clear slums and to afford cheap housing for low-income people. That object Housing Project No. N. C. 20-2 will accomplish, so far as its dwelling units can, for we indulge the “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.”
In re Housing Authority of the City of Charlotte, supra.
The order of Judge Copeland is
Affirmed.
SHARP, J., took no part in the consideration or decision of this case.