
70 S.E.2d 500 (1952)
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.
*502 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 capricious 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 to 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 *503 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 *504 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 Street, on the south by the Old Plank Road (now West Marsh Street), on the 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 two or more roads. The Housing Authority, however, settled upon a 7.25-acre parcel in the southwest corner of the campus fronting on Marsh and McCoy Streets and instituted this proceeding for its condemnation.
(3) The College has accommodations for, and an enrollment of, approximately 400 students. It has "to turn down from 100 to 150 applications each year." It has a four-year curriculum and an "A" rating.
(4) Within the past six years the College has expended "a little over $600,000" in the erection of buildings on the campus, and has "$657,000 earmarked and allotted to the College for future expenditures in the erection of additional buildings" and the development of its athletic field.
(5) No buildings are on the proposed site. However, it is only 57 feet from the athletic field and approximately 300 feet from the recently erected Ballard Hall, which is the westernmost building on the campus.
(6) Most of the present buildings are located on the eastern side of the campus. The proposed plan of expansion calls for the location of new buildings on the western side of the campus in close proximity to the athletic field and the proposed housing site, and this site is essentially necessary to care for the orderly expansion and development of the plant facilities of the College.
It thus appears that substantial evidence was offered tending to show that the Housing Commissioners either failed to understand or disregarded the ill effects and harm likely to come to Livingstone College as a result of locating on its campus a public housing project. The testimony tends to support the inference that they failed to consider the contributions this college is making toward curing the very social and economic ills which public housing is designed to minimize.
The evidence offered in the trial below, when considered in its light most favorable to the respondent, as is the rule on motion for a directed verdict, was sufficient to overcome the motion and sustain the jury in finding that the Commissioners of the Housing Authority acted arbitrarily and capriciously in selecting the campus site for the location of the housing project. See Ferrell v. Metropolitan Life Insurance Co., 207 N.C. 51, 175 S.E. 692; Perry v. First Citizens Nat. Bank & Trust Co., 226 N.C. 667, 40 S.E.2d 116.
Another group of exceptions challenge the action of the trial court in admitting in evidence testimony tending to show that other sites were available and suitable for the housing project. This evidence was relevant and admissible as bearing directly on the main question at issue: whether the Housing Commissioners acted arbitrarily or capriciously in attempting to appropriate the college campus site, and none other. The authorities relied on by the appellant are distinguishable. In any event, the reception in evidence of the challenged testimony would seem to be harmless in view of the admission without objection of other similar testimony. Price v. Whisnant, 232 N.C. 653, 62 S.E.2d 56; Sprinkle v. City of Reidsville, 235 N.C. 140, 69 S.E. 2d 179; State v. Murphy, N.C., 70 S.E.2d 498.
Appellant also urges that the court should have charged the jury that the burden of the issue was on the respondent College to satisfy the jury, not by the mere *505 preponderance of the evidence, but by proofs "clear, strong, and convincing" that the Housing Commissioners acted arbitrarily or capriciously in selecting the campus site. The contention is without merit. Ordinarily in civil matters the burden of proof is required to be carried by a preponderance of the evidence, or by its greater weight. It is only in respect to a few cases, "as here, for example, it is proposed to correct a mistake in a deed or other writing, to restore a lost deed, to convert a deed absolute on its face into a mortgage, to engraft a parol trust upon a legal estate, to impeach the probate of a married woman's deed, to establish a special or local custom, and generally to obtain relief against the apparent force and effect of a written instrument upon the ground of mutual mistake, or other similar cause, the evidence must be clear, strong and convincing." Continental Waste Co. v. Henderson Brothers, 220 N.C. 438, 17 S.E.2d 519; Henley v. Holt, 221 N.C. 274, 20 S.E. 2d 62. The instant case does not come within the exception to the general rule. See also Stansbury, N.C.Evidence, Sec. 213, p. 457.
Our examination of the remaining exceptions brought forward by the appellant discloses no prejudicial error. A perusal of the record leaves the impression that the appellant's cause was fairly tried, and no reason to disturb the result has been made to appear.
No error.
ERVIN, J., concurs.
DENNY, J., took no part in the consideration or decision of this case.
ERVIN, Justice (concurring).
I concur in the result. If I had my way, I would reach the same result more directly by striking down as unconstitutional the statute giving housing authorities the power of eminent domain. Under this statute, a housing authority condemns the property of one person to provide dwellings for others. No amount of sophistry can erase the plain fact that this is taking the private property of one person without his consent, and devoting it to the private uses of others. This being true, the statute conferring the power of eminent domain upon housing authorities cannot be reconciled with the declarations of the State Constitution that all men are endowed by their Creator with an unalienable right to "the enjoyment of the fruits of their own labor," and that "no person ought to be * * * deprived of his * * * property, but by the law of the land." N.C.Const., Art. I, Sections 1, 17. Courts should not sustain legislative acts which sacrifice the constitutional rights of the individual to what is called social progress.
