Thorpe v. Housing Authority of the City of Durham Appendix

    APPENDIX

Supreme Court of the United States

OCTOBER TERM, 1967

No. 1003

JOYCE C. THORPE, PETITIONER,

vs.

HOUSING AUTHORITY OF 
THE CITY OF DURHAM.

ON WRIT OP CERTIORARI TO THE SUPREME COURT OF 
NORTH CAROLINA

PETITION FOR CERTIORARI FILED JANUARY 9, 1968 

CERTIORARI GRANTED MARCH 4, 1968



SUPREME COURT OF THE UNITED STATES

JOYCE C. THORPE, PETITIONER,

OCTOBER TERM, 1967

No. 1003

JOYCE C. THORPE, PETITIONER,

vs.

HOUSING AUTHORITY OF 
THE CITY OF DURHAM.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF 
NORTH CAROLINA

I N D E X
Original Print

Record from Justice of Peace Court, City of Durham,
North Carolina
Officer’s return ........................   7
Oath of plaintiff ..............................................................  8 1

Form of summons ........................................................  9 2
Execution ..........................................................................  9 3
Notice of appeal to Superior Court o f Durham

County ............................................................................  10
Order o f September 20, 1965 ........................................ 11

Proceedings in the Superior Court of Durham County
Stipulations........................................................................  H  ®
Affidavit of defendant ................................    14 7
Defendant’s motion to quash ................. -..................... 17 10



11 IN D E X

Original Print
Proceedings in the Superior Court of Durham County 

— Continued
Exhibit 1— Dwelling lease ..............................................  18 11
Exhibit 2—-Notice of cancellation of lease .................  25 18
Judgment (with exceptions) .......................................... 25 19
Stipulation as to record ................................................ 31 24
Grouping of exceptions and assignments of error 32 25

Proceedings in the Supreme Court of North Carolina 34 26

Opinion, per curiam ............................................................  34 26

Judgment ..............................................................................  37 29

Clerk’s certificate ..................................................................  38 30

Order extending time to file petition for writ of certio­
rari ......................................................................................  39 31

Order allowing certiorari ....................................................  40 32

Proceedings in the Supreme Court o f North Carolina 
on Remand from April 12, 1967, Order of this Court
—in Addendum to Record ..............................................  2 33
Order of Remand ............................................................  2 33
Order in response to Remand ........................................ 3 35
Clerk’s Certificate ............................................................  5 36
Judgment............................................................................  0 37
Opinion ................................................................. -............ 1 38
Order Staying Execution o f Judgment .....................  11 43
Petition for Stay of Execution of Judgment ...........  13 45

Order allowing certiorari ..................................................  47



1

[fol. 7]
PROCEEDINGS IN JUSTICE OF PEACE COURT

P roceedings to R ecover P ossession of L and

H ousing  A u th o rity  of th e  C it y  of D u r h a m , 

against 
J oyce T horpe .

Justice of the Peace.

Durham Township 
Durham County

O fficer ’s R eturns

On this day I served the within Summons on the defen-
[fol. 8] dant: .................................................... .....  delivering
a copy thereof, with a copy of the oath of the Plaintiff to 
said Defendant: .........................................................................
This 20 day of Sept., 1965

C. E. Evans, Constable;................................. , Sheriff.
By .................................  D. S.

J u stice ’s C ourt 

D u rh a m  T o w n sh ip

O ath  of P l a in t if f

Affidavit
Before: H. L. Townsend, Justice of the Peace.
The plaintiff maketh oath, that the defendant entered 

into possession of a piece of land in said County, located 
and described as follows: Apartment 38G—Ridgeway Ave­
nue—McDougald Terrace property of Housing Authority 
of the City of Durham, under written lease from the plain­



2

tiff, Housing Authority of the City of Durham; that said 
defendant has failed to comply with the terms of said lease, 
to w it: written lease specified that either party may termi­
nate upon fifteen (15) days’ notice and the defendant, Joyce 
Thorpe, has received said fifteen (15) days’ notice from the 
plaintiff, and the plaintiff has informed in writing the de­
fendant to the effect that according to the terms of the lease 
the plaintiff wishes to terminate the lease. However, the 
defendant has failed and refused to vacate the premises. 
That the plaintiff has demanded the possession of prem­
ises of said defendant, who refuses to surrender it, but holds 
over; that the estate of the plaintiff is still subsisting, and 
[fol. 9] the plaintiff asks to be put in possession of the 
premises.

Housing Authority of the City of Durham, B y : J. L.
Bennett, Jr., Plaintiff.

Subscribed and sworn to before me, this the 17th day 
of September, 1965.

H. L. Townsend, Justice of the Peace.

F orm of S u m m o n s  to B e I ssued by  t h e  J ustice 

J u stice ’s Court

H ousing  A u th o rity  of th e  C it y  o r  D u r h a m , 

again st

J oyce T h o rpe .

State of North Carolina,
Durham Township,
Durham County.

Summons
Housing Authority of the City of Durham, by J. L. Ben­

nett, Jr., having made and subscribed before me the oath,



3

a copy of which is above set forth, you are required to 
appear before me, on the 20th day of September, 1965, at 
11:00 o’clock A.M., then and there to answer to the com­
plaint, otherwise judgment will be given that you be re­
moved from the possession of the premises.

Witness my hand and seal, this the 17th day of Septem­
ber, 1965.

H. L. Townsend, Justice of the Peace.

(Seal)

To Joyce Thorpe, Defendant.

[fol. 10]
E xecution  

J u stice ’s C ourt

H ousing  A u th o rity  of th e  C ity  of D u r h a m , 

against
J oyce T horpe .

State of North Carolina.
To any Lawful Officer of Durham County—Greeting:
You are hereby Commanded to remove the within named 

defendant, all other occupants and all of her belongings 
from, and put the above named plaintiff in possession of 
a certain piece of land, described in the plaintiff’s affidavit 
attached hereto.



4

Return this writ, with a statement of your proceedings 
thereupon, before me, at Durham, North Carolina, within 
two days.

Witness my hand and seal, this 20 day of Sept., 1965.

H. L. Townsend, Justice of the Peace.
(Seal)

B efore H. L. T ow n sen d , J ustice of t h e  P eace

N otice of A ppeal  to S uperior C ourt

To H. L. Townsend, a Justice of the Peace for said
County—
Take notice, that the defendant in the above action ap­

peals to the Superior Court from the judgment rendered 
therein by you on the 20th day of September, 1965, in 
favor of the plaintiff for the possession of the premises 
belonging to the Housing Authority of The City of Durham 
at 38-G Ridgeway Avenue, Durham, North Carolina, and 
that this appeal is founded upon the ground that the said 
judgment is contrary to law and evidence.

The written notice is given in addition to the notice given 
in open court upon the rendering of judgment against the 
[fol. 11] defendant on the 20th day of September, 1965.

Dated this 24th day of September, 1965.
M. C. Burt, Jr., Attorney for Appellant.

B efore t h e  J ustice of th e  P eace 

O rder—September 20, 1965
It appearing that the summons with a copy of the oath 

of the plaintiff was duly served on the defendant, and 
whereas the defendant and the plaintiff appeared before 
me at 1 :30 P.M. on the 20th day of September, 1965, and



5

after hearing the matter and the contentions of the parties, 
I adjudged that the defendant be removed from the prem­
ises described in the oath and affidavit of the plaintiff, 
and after the Court rendered the above said decision and 
after an Order of Eviction was entered, the defendant gave 
notice of appeal in open Court and has posted bond ac­
cording to the terms of G. S. 42-34;

Now, Therefore, let this matter be placed on the Supe­
rior Court Docket for Durham County, North Carolina, 
and tried according to G. S. 42-34, et seq.

Witness my hand and seal, this 24th day of September, 
1965.

H. L. Townsend, Justice of the Peace.

Ik t h e  S uperior Court of D u rh a m  Co u n ty  

S tipu lation s

[fol. 12] It is stipulated that during all of the time of 
the controversy the Housing Authority of the City of Dur­
ham was a corporation duly organized under the Housing- 
Authority Law of this State, doing business or transacting 
its activities here in Durham and was the owner of a prop­
erty known as McDougald Terrace located here in Durham, 
which is a housing project operated by the Housing Au­
thority of the City of Durham under its statutory authority 
and pursuant to its contract with the Federal government 
as a low-rent housing project; and that on the 11th day 
of November, 1964, the defendant Joyce C. Thorpe and 
the Housing Authority of the City of Durham entered into 
a dwelling lease which is introduced as Plaintiff’s Exhibit 1 
(a copy of same is substituted in lieu of the original); and 
that pursuant to this lease and under and by virtue of this 
lease the defendant Joyce C. Thorpe moved into an apart­
ment in the McDougald Terrace project, Apartment No. 
38-G; that on the 11th day of August, 1965, the Housing



6

Authority of the City of Durham by and through C. S. 
Oldham, Executive Director, duly delivered to the defen­
dant Joyce C. Thorpe a notice which is Plaintiff’s Exhibit 2, 
and introduced into evidence, and that she did receive that 
notice on the 12th day of August, 1965.

It is further stipulated that the Housing Authority of 
the City of Durham did not give to this defendant a reason 
why the Housing Authority was terminating the lease; that 
is to say, for failing to renew her lease, and that the de­
fendant did request a hearing before the date of the evic­
tion; that although the Housing Authority had a meeting 
on the subject the defendant was not given a hearing in 
which she herself was present and reasons assigned to her.

It is stipulated that the defendant has not vacated the 
apartment and refuses to do so; that this matter was 
brought on in a summary ejectment proceeding.
[fol. 13] It is stipulated that the defendant is twenty-five 
years of age.

It is further stipulated that on the 10th day of August, 
1965, defendant was elected President of the Parents’ Club, 
which is a club composed of residents of McDougald Ter­
race, and it is alleged by the defendant that the reason she 
is being evicted is due to defendant’s participation in 
the organization of the Parents’ Club in the McDougald 
Terrace.

It is further stipulated that this matter was duly heard 
in an action before a Justice of the Peace, and it was duly 
appealed, the defendant having provided bond for the rent 
as provided by law, and it is presently in the Superior 
Court on appeal from a judgment by the Justice of the 
Peace.

It is stipulated and agreed by plaintiff and defendant 
that this cause shall be heard by the Judge Presiding 
without a jury, and the trial by a jury is expressly waived 
by the plaintiff and defendant in this cause, and it is stipu­



7

lated and agreed that the Judge Presiding may hear and 
determine this cause by finding facts based on the stipu­
lations herein entered and any affidavits entered into the 
record and draw therefrom conclusions of law.

It is agreed by counsel for plaintiff and counsel for the 
defendant that the affidavit of Mrs. Thorpe may be signed 
hereafter.

It is stipulated and agreed that if Mr. C. S. Oldham, 
the Executive Director of the Housing Authority of the 
City of Durham, were present and duly sworn and were 
testifying, he would testify that whatever reason there may 
have been, if any, for giving notice to Joyce C. Thorpe 
of the termination of her lease, it was not for the reason 
that she was elected president of any group organized in 
McDougald Terrace, and specifically it was not for the rea­
son that she was elected president of any group organized 
[fol. 14] in McDougald Terrace on August 10, 1965, and 
not for any of the other reasons set forth in the affidavit, 
and that further he would testify that the reason, if an}7, 
for giving her notice and for her eviction ivas not because 
of her efforts to organize the tenants of McDougald Ter­
race, that C. S. Oldham did in fact so testify in the hearing 
before the Justice of the Peace when this case was orig­
inally heard before the Justice of the Peace.

I n th e  S uperior C ourt of D u rh a m  C ou nty  

A ffidavit  of D efendant

The undersigned Defendant, being duly sworn, deposes 
and says:

I. That the plaintiff, Housing Authority of the City of 
Durham, is a domestic corporation, duly incorporated and 
existing under the laws of the State of North Carolina.

II. That the defendant is a resident of the City of Dur­
ham, County of Durham, State of North Carolina, residing 
at 38-G llidgeway Avenue, McDougald Terrace.



8

III. That C. S. Oldham is a resident of the City of 
Durham, County of Durham, State of North Carolina, and 
is employed by the plaintiff, Housing Authority of the City 
of Durham, as its managing director.

IV. That 38-G Ridgeway Avenue is a dwelling in Mc- 
Dougald Terrace, a public housing project in the City of 
Durham, administered by the plaintiff.

V. That the plaintiff and the defendant entered into a 
written lease of the premises known as 38-G Ridgeway 
Avenue on the 11th day of November, 1964; that said lease 
provides, among other things, that “ The Management may 
terminate this lease by giving to the Tenant notice in writ­
ing of such termination fifteen (15) days prior to the last 
[fol. 15] day of the term.”

VI. That on the 12th day of August, 1965, the defendant 
received an eviction notice from the plaintiff, dated Au­
gust 11, 1965, requiring that she vacate the premises within 
15 days, said eviction notice failing to state the reason 
for said eviction.

VII. That the defendant is informed and believes, and 
therefore alleges, that her eviction was prompted by C. S. 
Oldham, Manager of the Housing Authority, who wants 
to get her out of the project because of her efforts to 
organize the tenants of McDougald Terrace; that she was 
elected president of a group organized in McDougald Ter­
race on August 10, 1965, and received a letter from the 
Housing Authority dated August 11, 1965, ordering her 
to move.

VIII. That the defendant is informed and believes, and 
therefore alleges, that the Housing Authority of the City 
of Durham is an administrative agency; that administra­
tive agencies may not deprive a person of his constitu­
tionally protected rights of life, liberty and property 
without due process of law, to wit: Notice and hearing 
which is adequate and fair; that the right to such a hearing



9

is a rudiment of fair play assured as a minimum require­
ment by the Fourteenth and Fifteenth Amendments, as 
well as by the due process clause of the Constitution of 
North Carolina.

IX. That the defendant, through her attorneys, by phone 
and by a letter dated August 25, 1965, requested a hearing 
in this regard to determine the reason for her eviction; 
that said request was denied.

X. That on the 1st day of September, 1965, the Hous­
ing Authority of the City of Durham and C. S. Oldham 
met with M. C. Burt, Jr., Attorney for the defendant, at 
which time the defendant, through her attorney, again 
[fol. 16] requested a hearing to determine the reason for her 
eviction; that the Chairman of the Housing Authority in­
formed the attorney for the defendant that their rules and 
regulations make no provisions for a hearing and that a 
hearing could not be had and was therefore denied.

XI. That, upon information and belief, on the 1st day 
of September, 1965, the Housing Authority of the City of 
Durham and C. S. Oldliam met with Detective Frank 
McRae, of the Police Department of the City of Durham, 
who supplied them with certain information allegedly un­
covered during the investigation of her conduct; that nei­
ther the defendant nor her attorney were present; that 
at no time has the defendant or her attorney ever been 
confronted by her accuser and allowed to question him 
regarding the charges, or to offer any proof of the false­
ness of the charges.

XII. That, upon information and belief, on the 1st day 
of September, 1965, the plaintiff was informed by defen­
dant’s counsel that in his opinion the Constitution of the 
United States compelled them to inform the defendant of 
the reasons for her eviction and grant a hearing; that upon 
information and belief, said plaintiff has repeatedly re­
fused to grant such rights voluntarily.



10

XIII. That said action by the plaintiff herein is taken 
under Section 157-9 of the General Statutes, which author­
izes the Housing Authority “ to manage as agent of any 
city or municipality located in whole or in part within its 
boundaries any housing project constructed or owned by 
the city,” said action constituting State Action and a vio­
lation of plaintiff’s constitutional rights under color of 
State law.

XIV. That the defendant and her family are unable to 
find decent, safe, and sanitary housing within her financial 
reach, although making every reasonable effort to do so; 
that she, for this reason, should be allowed to remain in 
[fol. 17] the Housing Authority Project.

This 20th day of October, 1965.
Joyce C. Thorpe, Defendant.

(Verified by Joyce C. Thorpe Oct. 20, 1965.)

I n th e  S uperior C ourt op D u rh a m  Co u nty  

M otion  to Q uash

Xow Comes the defendant and moves to quash the pro­
ceedings herein upon the grounds set forth in her duly 
verified affidavit, which is made a part hereof and includes 
the following:

I. That the tenant in a Public Housing Project has a 
right to her apartment and a deprivation of that right 
without a hearing violates due process of law as guaran­
teed by the 14th Amendment, Dixon v. Alabama State 
Board of Education, 294 F. 2d 150 (1961).

II. That the Housing Authority of the City of Durham, 
as a public administrative agency, is an arm of the State; 
that its action necessarily involved State action; that the 
State may not deprive a public housing tenant of her in­



11

terest in the leasehold unless the means conform with due 
process and that, de minimis, due process requires a 
hearing.

III. That the defendant’s eviction primarily resulted 
from her community activities as an organizer of tenants, 
thus constituting an unconstitutional abridgement of her 
freedom of expression and a denial of equal protection of 
the laws. Sherbert v. Verner, 374 US 398, 10 L. ed. 2d 965; 
Speiser v. Randall, 357 US 513, 2 L.ed. 2d 1460; Dixon v. 
Alabama State Board of Education, 294 F. 2d 150 (1961).

Wherefore, this defendant moves the Court that the pro­
ceedings herein be quashed and judgment be given against 
this plaintiff.

Respectfully submitted this 20th day of October, 1965. 
[fol. 18]

McKissick & Burt, By: M. C. Burt, Jr., Attorneys for 
Defendant.

I n th e  S uperior C ourt oe D u rh a m  Co u n ty  

E x h ib it  # 1— D w ellin g  L ease

486-D
THE HOUSING AUTHORITY OF THE CITY OF 

DURHAM, N. C., (hereinafter called the “ Management” ), 
in consideration of the rental herein reserved and of the 
statements made by Joyce C. Thorpe (hereinafter called 
the “Tenant” ) as set forth in his signed application, hereby 
leases to the Tenant and the Tenant hereby hires and takes 
the premises in McDougald Terrace (hereinafter called the 
“Project” ) designated as Apartment No. 38-G Ridgeway 
Ave. for the term beginning November 11, 1964, and ter­
minating at midnight November 30, 1964, at a rental of 
$19.33 for said term, payable in advance on the first day 
of said term.



12

The rental for these premises shall be based on the cur­
rent family composition and family income as have been 
represented to the Management by statements of the tenant 
and other verifications on file in the Management Office, 
and shall be in conformance with the approved current 
rent schedule which has been adopted by the Management 
for the operation of this Project. This lease shall be auto­
matically renewed for successive terms of one month each 
at the rental last entered and acknowdedged below:
[fol. 19]

Signature of
Apt. Contract Signature Management’s
No. Date Rent of Tenant Witness
38-G 12-1-64 $29.00 Joyce C. Thorpe ........................

Provided, there is no change in the income or composi­
tion of the family of the tenant and no violation of the 
terms hereof. In event of any change in the composition 
or income of the family of the tenant, rent for the prem­
ises shall automatically conform to the rental rates estab­
lished in the approved current rent schedule which has 
been adopted by the Management for the operation of this 
Project and shall be chargeable on the basis established in 
Section 2 hereof.

Rent shall be payable in advance on the first day of each 
calendar month. This lease may be terminated by the Ten­
ant by giving to Management notice in writing of such 
termination 15 days prior to the last day of the term. 
The Management may terminate this lease by giving to 
the Tenant notice in writing of such termination fifteen 
(15) days prior to the last day of the term. Provided, 
however, that this paragraph shall not be construed to 
prevent the termination of this lease by Management in 
any other method or for any other cause set forth in this 
lease.

The Tenant shall deposit with the Management the sum 
of Twenty Dollars ($20.00) as security for the Tenant’s



13

faithful performance of all the terms, covenants, and con­
ditions of this lease, and as security to the Management 
for the return of removable articles on the premises, which 
security is to remain in possession of the Management until 
after said premises have been vacated by the Tenant and 
then be returned to the Tenant, without interest, if all 
terms, covenants, and conditions of this lease to be per­
formed by the Tenant have been fully performed. The said 
[fob 20] deposit shall not be considered as liquidated dam­
ages, but shall be subject to the discharge and payment of 
all claims of the Management and obligations of the Tenant 
hereunder, notwithstanding that this lease may have been 
terminated or the Tenant dispossessed under any of the 
provisions hereof.

1. The Tenant agrees:
(a) To pay the rent at the Management Office when due 

without requiring a statement; and to pay, when 
billed, for any damage done to the premises except 
damages beyond the control of the Tenant and his 
family.

(b) To pay to Management upon demand of Manage­
ment such penalty in the nature of increased rent 
or otherwise such amounts as Management may 
charge based on a determination by Management 
that the Tenant has consumed or is consuming elec­
tric energy, gas or water in excess of a normal 
amount to be fixed and determined by Management.

(c) Not to assign this lease; nor to sublet or transfer 
possession of the premises; nor to give accommo­
dations to boarders or lodgers; nor to use or permit 
the use of the dwelling for any other purpose than 
a private dwelling solely for the Tenant and his 
family as reported.



14

(d) To quit and surrender the premises at the expira­
tion of this lease in good order and repair, reason­
able wear and tear excepted.

(e) To keep the premises in a clean and sanitary con­
dition; to maintain the yard in a neat and orderly 
manner; to assist in the maintenance of the project; 
not to use the premises for any illegal or immoral 
purposes; not to keep dogs or other pets; nor to 
make any repairs or alterations without the written 
[fol. 21] consent of the Management; not to display 
any signs whatsoever; not to use tacks, nails, or 
screws or other fasteners in any part of the prem­
ises except in a manner prescribed by the Manage­
ment; and to notify the Management promptly of 
the need of any repair to the premises.

(f) To follow all rules or regulations prescribed by the 
Management concerning the use and care of the 
premises and of any common or community space 
in the Project including walks, drives, playgrounds, 
community rooms, etc.

(g) To permit the Management or its representatives 
to enter the premises during all reasonable hours 
to examine the same or to make such repairs, al­
terations, or betterments as may be deemed nec­
essary or to show the premises for leasing.

(h) To submit to the Management at least once each 
year upon the request of the Management a signed 
statement in such form as the Management may 
request, setting forth the facts as to the income and 
assets of himself and his family and as to the num­
ber and ages of members of his family.

(i) To promptly notify the Management of any increase 
or decrease in family income or of any change in 
family composition or assets.



15

2. If any of the statements submitted by the Tenant as 
required herein, or facts obtained by Management in­
dependently, show that the family income or composition 
has changed since the time of admission or preceding 
statement or report, as the case may be, so as to require 
a different rent on the basis of the approved rent sched­
ule of the Management, then the Management will re­
quire the payment of, and the Tenant agrees to pay, 
[fol. 22] the rental established for the higher or lower 
grade appropriate to family income or composition.
If, under the procedure of this section, an increase in 
rent is indicated because of change in the income or 
composition of the family, the Tenant hereby agrees 
that he will be liable for any and all rent due by reason 
of such changed status beginning with the first day of 
the month following that in which the change occurred, 
and further agrees that he will be subject to eviction 
in the event such rent is not paid.
If, under the procedure in this section, a decrease in 
rent is indicated under the approved rent schedule of 
the Management, such decrease will be effective at such 
time and in such amount as Management may determine, 
provided that such decrease will not result in a per unit 
per month rental income which is lower than the lowest 
achievable rental which has been established for the 
Project.

3. If the Management determines, after submission by the 
Tenant of any of the statements required herein, that 
the annual income or assets of the Tenant and his family 
exceeds the limits established for eligible occupancy, 
the Management may terminate this lease at the end 
of any calendar month by giving the Tenant not less 
than 30 days’ prior notice in writing. At the expiration 
of the time stated in said notice, the Management’s 
representatives shall have the right immediately to re­
enter the premises and remove all persons and property 
therefrom, and the Tenant hereby expressly waives all



16

notices required by law to terminate liis tenancy and 
waives any and all legal proceedings to recover posses­
sion of said premises, and agrees that upon any such 
termination the representatives of the Management may 
immediately re-enter said premises and dispossess the 
[fol. 23] Tenant without legal notice or the institution 
of any legal proceedings whatsoever.
If, at any time during the period of this lease or any 
renewal thereof, his family no longer conforms to the 
Occupancy limits applicable to the dwelling unit occu­
pied, as established by the Management, they shall move 
into a unit of appropriate size as designated by Man­
agement when a vacancy exists. If no unit of appro­
priate size is available in the Project within six (6) 
months after the change in the composition of the Ten­
ant’s family, the Tenant and his family may be required 
to move from the premises in accordance with the terms 
of this lease.

4. In the event of misrepresentation of any material fact 
in the application of the Tenant or in any statement 
submitted to the Management by the Tenant as required 
herein, or if the Tenant fails to comply with any of the 
provisions of this lease, it shall be automatically ter­
minated at the option of the Management and the Man­
agement shall have the right immediately to re-enter 
the premises and remove all persons therefrom, and the 
Tenant hereby expressly waives all notice required by 
law to terminate this lease and waives any and all legal 
proceedings to recover possession of said premises and 
agrees that upon any such failure the Management may 
immediately re-enter said premises and dispossess the 
Tenant without legal notice or the institution of any 
legal proceedings whatsoever.

5. Any notice required by law or otherwise will be suffi­
cient if delivered to the Tenant personally or sent by 
mail to the premises or affixed to the door of the prem­



17

ises. Notice to the Management must be in writing and 
delivered to the Housing Manager personally at the 
Management Office.

Lfol. 24] 6. The failure or omission of the Management to 
terminate this lease for any cause given above shall not 
destroy the right of the Management to do so later for 
similar or other causes.

7. The Management agrees to furnish reasonable quanti­
ties of electricity, and gas, and water; but shall not be 
liable for failure to supply any of these services for any 
cause whatsoever. A penalty charge will be made quar­
terly for abusive use in excess of the quantities estab­
lished and on record in the Management Office.

8. Neither the Management nor any of its representatives 
or employees shall be liable for damage or loss from 
theft or from any other cause whatsoever to the prop­
erty of (i) the Tenant, (ii) any member of the Tenant’s 
family, or (iii) any of the Tenant’s visitors or guests, 
or for injury to person of Tenant, his family or visitors.

9. The Tenant hereby warrants that neither he nor any 
person who is to occupy the leased premises is a mem­
ber of an organization designated by the Attorney Gen­
eral of the United States as subversive. The tenant 
agrees that if this warranty is false or if he, or any 
person who is to occupy the leased premises, becomes 
or continues to be a member of any organization now 
or hereafter so designated, he will promptly vacate the 
premises.



18

This lease evidences the entire agreement between the 
Management and the Tenant and no changes shall be made 
except in writing.

H ousing  A u th o rity  of 
th e  C it y  of D u r h a m , N.C.
By: E. Hilliard

Tenant Joyce C. Thorpe 
Tenant ...............................

[fol. 25] Executed this 11 day of November, 1964, in the 
presence of E. Hilliard.

I n th e  S uperior C ourt of D u r h a m  C ou nty  

E x h ib it  # 2— N otice of Cancellation  of L ease

HOUSINH AUTHORITY OF THE CITY OF 
DURHAM, N. C.

MEMORANDUM

From: C. S. Oldham
Date: August 11, 1965

To: Mrs. Joyce C. Thorpe
Apt. 38-H, Ridgeway Avenue

Copies Mrs. Evelyn Hilliard 
to: Mr. James L. Bennett, Jr.

Your Dwelling Lease provides that the Lease may be 
cancelled upon fifteen (15) days written notice. This 
is to notify you that your Dwelling Lease will be can­
celled effective August 31, 1965, at which time you will 
be required to vacate the premises you now occupy.

C. S. Oldham 
Executive Director

CSO :jhe



19

I n th e  S uperior C ourt of D u rh a m  Co u n ty

J u dgm ent  ( W it h  E xceptio n s)—October 26, 1965
This cause, coining on to be heard, and being heard before 

the undersigned, Honorable William Y. Bickett, Judge Pre­
siding, at the October Civil Term of Durham County Su- 
[fol. 26] perior Court, upon plaintiff and defendant having 
expressly waived trial by jury, and having stipulated and 
agreed in open Court that this matter be heard without 
a jury by the Judge, and that the Judge find the facts upon 
stipulations made and affidavit filed, and render thereon 
conclusions of law and judgment in the cause; and the 
Court, after hearing argument of counsel and considering 
and weighing the stipulations made in this action and the 
affidavit filed therein, finds facts as follows:

(1) That the Housing Authority of the City of Durham 
is and was during all of the times involved in this action, 
and specifically on the 11th of November, 1964, and there­
after, to the present date, a corporation, organized and 
operating under and by virtue of the laws of the State of 
North Carolina—specifically, the Statute known and des­
ignated as the Housing Authorities Law of the State of 
North Carolina;

(2) That during said times C. S. Oldham was the Execu­
tive Director of said Housing Authority of the City of 
Durham and charged with responsibility for management 
of the properties of the Housing Authority of the City of 
Durham located in the City of Durham;

(3) That on the 11th day of November, 1964, and there­
after continuously until this date, the Housing Authority 
of the City of Durham was and is the owner of real prop­
erty known as the McDougaid Terrace Housing Project, 
located in the City of Durham, and specifically a dwelling 
apartment located in said housing project, designated and 
known as No. 38-G Ridgeway Avenue;



2 0

(4) That on the 11th day of November, 1964, the plaintiff 
and the defendant entered into and duly executed a lease 
contract, wherein the Housing Authority of the City of 
Durham leased to the defendant Apartment No. 38-G Ridge­
way Avenue in said McDougald Terrace Project for the 
term beginning November 11, 1964, and terminating at Mid- 
[fol. 27] night November 30, 1964, at a rental of $19.33 for 
said term, payable in advance on the first day of said term; 
that said lease contract further provided that the rental 
for these premises would be based on the current family 
composition and family income as were represented to the 
management of the Housing Authority of the City of Dur­
ham, and would be in conformance with the approved cur­
rent rent schedule which had been adopted by the Housing 
Authority of the City of Durham for the operation of the 
project; that the lease further provided that the lease would 
be automatically renewed for successive terms of one month 
each at a rental of $29.00 a month, provided there was no 
change in the income or composition of the family and no 
violation of the terms of the lease; that the lease further 
provided that the rent should be payable in advance on 
the first day of each calendar month, and that the lease 
could be terminated by the tenant by giving to the Housing 
Authority of the City of Durham notice in writing of such 
termination fifteen (15) days prior to the last day of the 
term, and that management could terminate the lease by 
giving to the tenant notice in writing of such termination 
fifteen (15) days prior to the last day of the term; that 
there was no provision in said lease whereby it was agreed 
that the Housing Authority of the City of Durham would 
give the defendant any reason for termination of said lease 
or that any reason for the termination of said lease was re­
quired, and there was no provision in said lease that any 
hearing should be held by the Housing Authority or any 
other agency or person with respect to any decision by the 
Housing Authority of the City of Durham to terminate said 
lease and to give the defendant notice in writing of such 
termination, as was provided in the language of the lease;



21

(5) That the defendant, upon her execution of said lease, 
entered into and occupied said Apartment No. 38-G Kidge- 
[fol. 28] way Avenue of the McDougald Terrace Project, 
owned by the plaintiff, Housing Authority of the City of 
Durham, and does now continue to occupy said dwelling 
apartment;

(6) That on the 12th day of August, 1965, the plaintiff, 
Housing Authority of the City of Durham, gave to the de­
fendant, Joyce C. Thorpe, notice in writing as follows: 
“Your Dwelling Lease provides that the Lease may be 
cancelled upon fifteen (15) days’ written notice. This is to 
notify you that your Dwelling Lease will be cancelled 
effective August 31,1965, at which time you will be required 
to vacate the premises you now occupy,” and that the defen­
dant duly received said notice to vacate on said date;

(7) That the defendant failed and refused to vacate said 
premises and continues to occupy same;

(8) That the Housing Authority of the City of Durham 
duly brought an action in summary ejectment before the 
Justice of the Peace Court in Durham County, and after 
hearing before said Court judgment was duly entered re­
quiring the defendant, Joyce C. Thorpe, to vacate said 
premises and ordering any duly constituted officer of Dur­
ham County to remove the defendant from said premises;

(9) That the defendant gave notice of appeal to the 
Superior Court and posted bond, pursuant to the provisions 
of G. S. 42-34;

(10) That the plaintiff, Housing Authority of the City of 
Durham, acting through C. S. Oldham, its Manager and 
Executive Director, gave notice to the defendant to vacate 
said premises not because she had engaged in efforts to 
organize the tenants of McDougald Terrace, nor because she 
was elected President of a group organized in McDougald 
Terrace on August 10,1965; that these were not the reasons 
said notice w7as given and eviction undertaken;

Exception #1



22

[fol. 29] (11) That the plaintiff, Housing Authority of
the City of Durham, gave no reason to the defendant for 
giving her notice that the lease was being terminated at the 
end of the term, nor did the plaintiff or any of its agents or 
employees conduct a hearing at which the defendant was 
present or invited to be present to inquire into reasons for 
terminating her lease;

(12) That the defendant did request a hearing on this 
matter but had no hearing other than that before the Justice 
of the Peace in this eviction action and in this Court;

(13) That the plaintiff, through its agents and employees, 
did inform the defendant that the plaintiff was not re­
quired to give or assign reasons to the defendant for the 
termination of her lease, and has not given to her or com­
municated to her any reason for so doing, other than that 
they desired to terminate her lease;

Wherefore, the Court concludes, as a matter of law, as 
follows:

(1) That the defendant, during August of 1965, occupied 
the premises owned by the plaintiff, Housing Authority of 
the City of Durham, known and designated as Apartment 
No. 38-Gr Ridgeway Avenue, McDougald Terrace, under and 
pursuant to the terms and provisions of a lease, whereby 
she was tenant from month to month;

(2) That by giving the defendant written notice of 
termination of her lease on the 12th day of August, 1965, 
the plaintiff effectively terminated the tenancy of the lease 
of the defendant as of the 31st day of August, 1965;

Exception #2
(3) That the continued occupancy of said premises by 

the defendant after the 31st day of August, 1965, was with­
out right and was wrongful and against the express direc- 
[fol. 30] tion of the owner of said premises to vacate and in 
violation of said owner’s right to possession of said 
premises ;

Exception #3



(4) That the Housing Authority of the City of Durham 
did not owe a duty to communicate or give to the defendant 
any reason for its termination of her lease, nor was it 
required or had any duty to hold a hearing on said subject;

Exception # 4
(5) That the Housing Authority of the City of Durham 

acted in conformity with and in accordance with the terms 
and provisions of the lease entered into with the defendant, 
and the provisions of the laws of the State of North Caro­
lina, in terminating her lease;

(6) That the plaintiff is entitled to the possession of the 
premises described hereinabove, and that the defendant is 
in the wrongful possession thereof;

Exception # 5
Now, Therefore, It Is Ordered, Adjudged And Decreed 

that the defendant be removed from the said premises 
known as Apartment No. 38-G Ridgeway Avenue, and the 
plaintiff put in possession thereof, and that the plaintiff 
have and recover from the defendant the sum of Fifty- 
eight and No/100 ($58.00) Dollars, and a further amount, 
if any, as reasonable rent for said premises from the 1st 
day of November, 1965, until the premises are vacated by 
the defendant, and the defendant shall pay the costs to be 
taxed by the Clerk.

This 26th day of October, 1965.

William Y. Bickett, Judge Presiding.

I n th e  S uperior Court of D u rh a m  C o u nty  

A ppeal E ntries

The plaintiff and the defendant, having waived the right 
of a trial by jury in open Court, and agreeing upon the 
[fol. 31] Court finding the facts, conclusions of law, and 
enter a judgment, the Court further found the facts, con-



24

elusions of law and signing the judgment in this cause, the 
defendant hereby excepts to findings of facts, conclusions 
of law and the judgment as appear in the record.

Thereupon the defendant, through her counsel, gave 
notice in open Court of her appeal to the Supreme Court of 
North Carolina; further notice waived. The defendant is 
allowed sixty days in which to prepare and serve statement 
of case on appeal and the plaintiff is allowed thirty days 
thereafter to serve countercase or exceptions.

Stay of execution bond was fixed at $348.00, the same 
being the amount of the stay of execution bond in effect on 
appeal from the Justice of the Peace Court to the Superior 
Court, which is continued in effect.

Appeal bond is fixed at $200.00.
This the 5th day of November, 1965.

William Y. Bickett, Judge Presiding.

I n  t h e  S uperior C ourt oe D u rh a m  C ou nty  

S tipu lation  as to R ecord

It is stipulated and agreed by Counsel for the Plaintiff 
and Counsel for the Defendant that the foregoing consti­
tutes the statement of case on appeal and that the same was 
prepared and served and service of same accepted in apt 
time.

Edwards & Manson, By: Daniel K. Edwards, At­
torneys for Plaintiff;

McKissick & Burt, By: M. C. Burt, Jr., Attorneys for 
Defendant.



25

[fol. 32]
I n th e  S uperior C ourt of D u rh a m  C ou nty

G rouping  of E xceptions  and  A ssign m en ts  of E rror

1. For that the Court erred in finding as a matter of 
fact that the plaintiff Housing Authority of the City of 
Durham, acting through C. S. Oldham, its Manager and 
Executive Director, gave notice to the defendant to vacate 
said premises not because she had engaged in efforts to 
organize the tenants of McDougald Terrace, nor because 
she was elected President of a group organized in the Mc­
Dougald Terrace on August 10, 1965; that these were not 
the reasons said notice was given and eviction undertaken, 
as shown by Exception # 1  (B p  28).

2. That the Court erred in finding as a matter of law that 
by giving written notice of termination of her lease on the 
12th day of August, 1965, the plaintiff effectively termi­
nated the tenancy of the lease of the defendant as of the 31st 
day of August. As shown by Exception # 2  (R p 29).

3. For that the Court erred in finding as a matter of law 
that the continued occupancy of the premises by said defen­
dant after the 31st day of August, 1965, was without right 
and was wrongful and against the express direction of the 
owner of said premises to vacate and in violation of said 
owner’s right to possession of said premises. As is shown 
by Exception # 3  (R pp 29-30).

4. For that the Court erred in finding as a matter of law 
that the Housing Authority of the City of Durham did not 
owe duty to communicate or give the defendant any reason 
for its termination of her lease, nor was it required or had 
any duty to hold a hearing on said subject. As shown by 
Exception # 4  (R p 30).

5. For that the Court erred in finding as a matter of law 
that the plaintiff is entitled to the possession of the 
[fol. 33] premises, and that the defendant is in the wrong­
ful possession thereof. As shown bv Exception # 5  (R p 
30).



26

I n th e  N orth  C arolina S uprem e  Court
[fol. 34]

H ousing  A u th o rity  of t h e  C ity  of D u rh a m

v.
J oyce C. T horpe

Op in io n , P er C u riam

Appeal by defendant from Bickett, J., October 1965 Civil 
Session of Durham.

The plaintiff instituted summary ejectment proceedings 
before H. L. Townsend, Justice of the Peace, to remove the 
defendant from Apartment No. 38-G Ridgeway Avenue, 
McDougald Terrace, in the city of Durham. From a judg­
ment in favor of the plaintiff in the Court of the Justice 
of the Peace, the defendant appealed to the superior 
court where the matter was heard de novo by the court 
without a jury. The court made findings of fact, each of 
which is supported by stipulations or by the evidence in 
the record. The material facts so found may be sum­
marized as follows:

The plaintiff, a corporation organized and operating un­
der the laws of the State of North Carolina, is the owner 
of the tract of land known as the McDougald Terrace 
Housing Project in the city of Durham, which includes 
Apartment No. 38-G Ridgeway Avenue. On 11 November 
1964 the plaintiff and the defendant entered into a lease 
contract whereby the plaintiff leased to the defendant the 
said apartment for a term beginning 11 November 1964 
and terminating at midnight 30 November 1964. The lease 
provided that it would be automatically renewed for suc­
cessive terms of one month each. It further provided that 
the lease could be terminated by either party by giving to



27

the other written notice of such termination 15 days prior 
to the last day of the term. There was no provision in the 
lease requiring the lessor to give to the lessee any reason 
for its decision to terminate the lease or requiring that any 
hearing be held by the plaintiff, or by any other person or 
agency, with respect to such decision.
[fol. 35] The defendant occupied the apartment pursuant 
to the lease. On 12 August 1965 the plaintiff gave, and 
the defendant received, a written notice that the lease was 
cancelled effective 31 August 1965 and that at such time 
the plaintiff would be required to vacate the premises. 
The plaintiff gave no reason to the defendant for its deci­
sion to terminate the lease, advising the defendant that it 
was not required to do so. The defendant requested a hear­
ing but the plaintiff did not conduct any hearing at which 
the defendant was present. Whatever may have been the 
plaintiff’s reason for terminating the lease, it was neither 
that the defendant had engaged in efforts to organize the 
tenants of McDougald Terrace nor that she was elected 
president of a group which was organized in McDougald 
Terrace on 10 August 1965. The defendant refused to 
vacate the premises.

Upon these findings, the court concluded that the plain­
tiff terminated the lease as of 31 August 1965; that the 
occupancy of the premises by the defendant after such date 
was wrongful and in violation of the plaintiff’s right to 
possession; that there was no duty upon the plaintiff to 
give to the defendant any reason for its termination of the 
lease or to hold any hearing upon the matter; and that 
the plaintiff was entitled to the possession of the premises 
and the defendant was in wrongful possession thereof.

The court, therefore, gave judgment that the defendant 
be removed from the premises, that the plaintiff be put in 
possession thereof and that the plaintiff have and recover 
from the defendant $58.00 plus a reasonable rent for the 
premises from and after 1 November 1965 until the same



28

are vacated, together with the costs of the action. From 
this judgment the defendant appeals.

M. C. Burt, R. Michael Frank, Jack Greenberg, 
Sheila Rush, Edward V. Sparer of Counsel for de­
fendant appellant.

Daniel K. Edwards for plaintiff appellee.

P er Cu r ia m . The plaintiff is the owner of the apartment 
in question. The defendant has no right to occupy it except 
[fol. 36] insofar as such right is conferred upon her by the 
written lease which she and the plaintiff signed. This 
lease was terminated in accordance with its express provi­
sions at midnight 31 August 1965. With its termination, 
all right of the defendant to occupy the plaintiff’s prop­
erty ceased. Since that date the defendant has been and is 
a trespasser upon the plaintiff’s land.

The defendant having gone into possession as tenant of 
the plaintiff, and having held over without the right to do 
so after the termination of her tenancy, the plaintiff was 
entitled to bring summary ejectment proceedings against 
her to restore the plaintiff to the possession of that which 
belongs to it. G.S. 42-26; Murrill v. Palmer, 164 NC 50, 
80 SE 55. It is immaterial what may have been the reason 
for the lessor’s unwillingness to continue the relationship 
of landlord and tenant after the expiration of the term as 
provided in the lease.

Having continued to occupy the property of the plaintiff 
without right after 31 August 1965, the defendant, by rea­
son of her continuing trespass, is liable to the plaintiff for 
damages due to her wrongful retention of its property and 
for the costs of the action. G.S. 42-32; McGuinn v. McLain, 
225 NC 750, 36 SE 2d 377; Lee, North Carolina Law of 
Landlord and Tenant, § 18.

No Error.
Moore, J., not sitting.



29

[fol, 37]
I n  t h e  S u prem e  C ourt of N orth  Carolina

H ousing  A u th o rity  of t h e  C it y  of D u rh a m

vs.
J oyce C. T horpe

J u dgm ent

This cause came on to be argued upon the transcript of 
the record from the Superior Court, Durham County:

Upon consideration whereof, this Court is of opinion that 
there is no error in the record and proceedings of said 
Superior Court.

It is adjudged by the Court here that the opinion of the 
Court, be certified to the said Superior Court, to the intent 
that the proceedings be had therein in said cause accord­
ing to law as declared in said opinion.

And it is considered and adjudged further, that the de­
fendant and surety to the appeal bond, C. C. Malone, Sr. 
do pay the costs of the appeal in this Court incurred, to 
wit, the sum of Twenty-One and 40/100 dollars ($21.40), 
and execution issue therefor. Certified to Superior Court 
this 6th day of June 1966.
A True Copy

Adrian J. Newton, Clerk of the Supreme Court, By: 
Kathryn W. Bartholomew, Deputy Clerk.



30

[fol. 38]
S u prem e  C ourt of N orth  Carolina  

Cl e r k ’s C ertificate

Appeal docketed 
Case argued 
Opinion filed

8 April 1966 
10 May 1966 
25 May 1966

Final judgment entered 25 May 1966

I, Adrian J. Newton, Clerk of the Supreme Court of 
North Carolina, do hereby certify the foregoing to be a 
full, true and perfect copy of the record and the proceed­
ings in the above entitled case, as the same now appear 
from the originals on file in my office.

I further certify that no petition to rehear has been filed, 
and that the time for filing such petition, under the rules 
of this Court, has expired.

In testimony whereof, I have hereunto set my hand and 
affixed the seal of said Court at office in Raleigh, North 
Carolina, this 27th day of July, 1966.

(Seal)

Adrian J. Newton, Clerk of the Supreme Court, By: 
Carolyn J. Dalton, Deputy Clerk.



31

S uprem e  Court of t h e  U n ited  S tates 

No. ..........—October Term, 1966

[fol. 39]

J oyce C. T horpe , Petitioner,
vs.

H ousing  A u th o rity  of t h e  C it y  of D u rh a m

O rder E xtending  T im e  to F ile P etition  for 
W rit  of Certiorari

Upon Consideration of the application of counsel for 
petitioner,

It Is Ordered that the time for filing a petition for writ 
of certiorari in the above-entitled cause be, and the same is 
hereby, extended to and including October 21, 1966.

William J. Brennan, Jr., Associate Justice of the Su­
preme Court of the United States.

Dated this 12 day of August, 1966



32

S u prem e  C ourt of t h e  U nited  S tates 

No. 712—October Term, 1966

[fol. 40}

J oyce C. T h o rpe , Petitioner,
Y.

H ousing  A u th o rity  of t h e  C it y  of D u rh a m

Order A llo w in g  C ertiorari—December 5,1966
The petition herein for a writ of certiorari to the Su­

preme Court of the State of North Carolina is granted, 
and the case is placed on the summary calendar.

And it is further ordered that the duly certified copy 
of the transcript of the proceedings below which accom­
panied the petition shall be treated as though filed in re­
sponse to such writ.



33

[fol. 2]
U nited  S tates of A m erica , ss.:

T h e  P resident of t h e  U nited  S tates of A meeica

To the Honorable the Judges of the Supreme Court
of the State of North Carolina,

(S e a l )

GREETINGS :

W hebeas, lately in the Supreme Court of the State of 
North Carolina, there came before you a cause between 
Housing Authority of the City of Durham and Joyce C. 
Thorpe, wherein the judgment of the said Supreme Court 
was duly entered on the 25th day of May A.D. 1966, as 
appears by an inspection of the transcript of the record 
of the said Supreme Court which was brought into the 
S uprem e  Court of th e  U n ited  S tates by virtue of a writ 
of certiorari as provided by act of Congress.

A nd W hereas, in the October Term, 1966, the said 
cause came on to be heard before the S uprem e  C ourt 
of th e  U nited  S tates on  the said transcript of record, 
and was argued by counsel:

On Consideration W hereof, it was ordered and ad­
judged on April 17, 1967, by this court that the judgment 
of the said Supreme Court in this cause be vacated, with 
one half of the costs to be taxed against the respondent, 
and that this cause be remanded to the Supreme Court 
of the State of North Carolina for further proceedings 
not inconsistent with the opinion of this court.

I t W as F u rth er  Ordered that Joyce C. Thorpe [fol. 3] 
recover from the Housing Authority of the City of Dur­
ham One Hundred and Sixty-six Dollars and Forty-five 
Cents ($166.45) for her costs herein expended.



34

Now, T herefore, th e  Cause is R emanded to you in 
order that such proceedings may be had in the said cause, 
in conformity with the judgment of this court above stated, 
as accord with right and justice, and the Constitution and 
laws of the United States, the said writ notwithstanding.

Witness the Honorable E arl W arren , Chief Justice of 
the United States, the seventeenth day of May in the year 
of our Lord Nine [sic] Hundred and Sixty-seven.
Costs of Joyce C. Thorpe:

Clerk’s costs ....................................... $176.04
Printing of record  ..........................  156.85

$332.89

J ohn P . D avis

Clerk of the Supreme Court
of the United States

No. 712, October Term, 1966 
Joyce C. Thorpe, 

v

Housing Authority of the City 
of Durham



35

S uprem e  C ourt op N orth: C arolina 
S pring  T erm 1967

H ousing  A u th o rity  op 
th e  C it y  of D urham

v
J oyce C. T horpe

No. 776—Durham
O R D E R

[fol. 4] The judgment of this court, filed 25 May 1966, 
and reported in 267 NC 431, having been vacated by the 
order of the Supreme Court of the United States on 
17 April 1967, and this matter having been remanded to 
this court for further proceeding, it is hereby ordered 
that this matter be placed upon the calendar of this court 
for the Fall Term 1967 for further argument at the foot 
of the docket of appeals from the First, Second, Twenty- 
Ninth and Thirtieth Districts and that the parties be 
permitted to file further briefs if they so desire, the briefs 
of the appellant to be filed in this court on or before 
1 August 1967 and the briefs of the appellee to be filed 
in this court on or before 15 August 1967.

This the 20th day of June 1967.

A True Copy

B r a n c h , J.
For the Court

A drian  J. N ew ton

Clerk of the Supreme Court
of North Carolina
By Janet Puryear 

Deputy Clerk

6-22-67
( S e a l )



36

[fol. 5]
S u prem e  C ourt op N orth  Carolina 

Cl e r k ’s C ertificate

Appeal Docketed 

Case Argued 
Opinion Piled 

Final Judgment Entered

29 November 1966

9 May 1967 
24 May 1967 

24 May 1967

I, Janet P. Puryear, Deputy Clerk of the Supreme Court 
of North Carolina, do hereby certify the foregoing to be 
a full, true and perfect copy of the addendum to the record 
and the proceedings in the above entitled case, as the same 
now appear from the originals on file in my office.
In testimony whereof, I have hereunto set my hand and 
affixed the seal of said Court at office in Raleigh, North 
Carolina, this the 21st day of December, 1967.

J an et  P uryear

Deputy Clerk of the Supreme Court 
of North Carolina

(S e a l )



37

J U D G M E N T

S uprem e  C ourt oe N orth  Carolina 

F all  T e r m , 1967 

No. 765— D u rh am  C o u nty

H ousing  A u th o rity  of th e  C it y  of D urham

[fol. 6]

vs.
J oyce C. T horpe

This cause came on te be argued upon the transcript 
of the record from the Superior Court Durham County: 
Upon consideration whereof, this Court is of opinion that 
there is no error in the record and proceedings of said 
Superior Court.

It is therefore considered and adjudged by the Court 
here that the opinion of the Court, as delivered by the 
Honorable Carlisle W . H iggins Justice, be certified to 
the said Superior Court, to the intent that the P roceedings 
be H ad T herein  in  S aid Cause A ccording to L a w  as 
D eclared in  S aid O p in io n . And it is considered and ad­
judged further, that the D efendant  D o P ay  the costs of 
the appeal in this Court incurred, to wit, the sum of 
T h ir t y  Two and  40/100 dollars ($32.40), and execution 
issue therefor. Certified to Superior Court this 23rd day 
of October 1967.
A T rue Copy

Adrian J. Newton
Clerk of the Supreme Court

F rances P. M acon

By: Frances P. Macon, Deputy Clerk



38

[fol. 7]
I n th e  S uprem e  C ourt oe N orth  C arolina 

F all  T erm  1967 

No. 765—From Durham

H ousing  A u t h o r it y  oe th e  
Cit y  oe D urham

v
J oyce C. T horpe

Appeal by defendant from Bickett, J., October 1965 
Civil Session, Durham Superior Court.

J oseph  B urstein

For Defendant Appellant
D an iel  K. E dwards

For Plaintiff Appellee

H iggins, J .:

The plaintiff, a North Carolina corporation with federal 
assistance, built, owned, maintained, and managed the 
McDougald Terrace, a low-rent public housing project in 
the City of Durham. On November 11, 1964 the Housing 
Authority, as owner, and Joyce C. Thorpe, as tenant, 
entered in a written agreement whereby the Authority 
leased to Mrs. Thorpe Apartment No. 38-G for a term of 
30 days. The agreement provided: “ . . . . This lease may 
be terminated by the Tenant by giving to Management 
notice in writing of such termination 15 days prior to 
the last day of the term. The Management may terminate 
this lease by giving to the Tenant notice in writing of 
such termination fifteen (15) days prior to the last day 
of the term. . . .” Each party had equal right to terminate



39

the lease. The limitations as to time or terms were lawful. 
Chicago Housing Authority v. Blackman, 4 111. 2d 319, 
122 N.E. 2d 522; Housing Authority of Los Angeles v. 
Cordova, 130 Cal. App. 2d Supp. 883, 279 P. 2d 215, cert, 
denied, 350 U.S. 969; Lawson v. Housing Authority of 
Milwaukee, 270 Wis. 269, 70 N.W. 2d 605.

On August 11, 1965 the Housing Authority gave the 
tenant notice it was terminating the lease and gave direc­
tion that she vacate the apartment. On August 20, and 
again on September 1, the tenant [fol. 8] requested a 
hearing. The Manager of the Authority conferred with 
tenant’s counsel but did not give the tenant a hearing nor 
disclose any reason for refusing to extend the lease.

After the term expired and the tenant refused to vacate, 
the Authority instituted ejectment proceedings. The tenant 
testified that the day before the notice to terminate was 
served, she was elected President of the Parents’ Club, 
an organization for tenants living in the project. She 
testified, in her opinion, she was being ejected because of 
her club activities. In support of her belief, she offered 
nothing except the timing between her election and the 
service of the notice. She neither offered evidence of the 
purposes of the club nor any reason why the Authority 
should object to it. The Manager testified at the hearing 
before the Justice, and, by affidavit, before the Superior 
Court that the tenant’s activities in connection with the 
club played no part whatever in the decision of the Au­
thority not to renew the lease.

After hearing, the Justice of the Peace entered judg­
ment of eviction. Mrs. Thorpe appealed to the Superior 
Court. The parties waived a jury trial and consented 
that Judge Bickett hear the evidence, find the facts, and 
render judgment without the intervention of a jury.. Judge 
Bickett found the Authority had terminated the lease in 
the manner provided by the agreement of the parties and



40

that the tenant’s activities in the Parents’ Club played 
no part in the decision of the Authority not to renew 
the lease. The timing of the club election and the service 
of the ejection notice might arouse suspicion if the ac­
tivities of the club were shown to have been hostile to 
the Authority. Without such showing and in the face 
of positive testimony of the Manager to the contrary, 
the charge is based altogether on coincidence. The timing- 
may arouse suspicion, but to the judicial mind, suspicion 
is never a proper substitute for evidence. From Judge 
Bickett’s findings against her, and his order that she 
surrender the premises, Mrs. Thorpe appealed. Pending 
our consideration of the appeal, we ordered a stay of 
execution.
[fol. 9] On May 25, 1966 this Court, by opinion reported 
in 267 N.C. 431, found no error in the decision of the 
Superior Court. On December 5, 1966 the Supreme Court 
of the United States granted certiorari, 385 U.S. 967, to 
review our decision. On February 7, 1967, the Department 
of Housing and Urban Development issued this directive 
to local housing authorities:

“ Since this is a federally assisted program, we believe 
it is essential that no tenant be given notice to vacate 
without being told by the Local Authority, in a private 
conference or other appropriate manner, the reasons 
for the eviction, and given an opportunity to make 
such reply or explanation as he may wish.”

On April 9, 1967 the Supreme Court of the United States 
vacated our judgment and remanded the case to us “for 
such further proceedings as may be appropriate in the 
light of the February 7 Circular of the Department of 
Housing and Urban Development.”



41

At the beginning of our reconsideration, we note that 
the circular was issued two years after the lease was 
executed; 17 months after the notice of termination was 
given; 16 months after the eviction order was entered 
in the Justice’s court; 15 months after the eviction order 
was entered in the de novo hearing in the Superior Court; 
and 8 months after this Court found no error in the 
Superior Court judgment. The rights of the parties had 
matured and had been determined before the directive 
was issued. We quote from Green v. U. 8., 376 U.S. 149:

“The first rule of construction is that legislation [and 
directives] must be considered as addressed to the 
future, not the past. . . . (A) retrospective operation 
will not be given to a statute [or directive] which 
interferes with antecedant rights unless such be ‘the 
unequivocal and inflexible import of its terms, and 
the manifest intention of the legislature. . . . (S)ince 
regulations of the type involved in this case are to 
be viewed as if they were statutes, this “first rule” 
of statutory construction appropriately applies. . . .” ’ 
See also Green v. McElroy, 360 U.S. 474.

[fol. 10] The North Carolina decisions are to the effect 
statutes are presumed to act prospectively only. Wilson 
v. Anderson, 232 N.C. 212, 59 S.E. 2d 836; Hospital v. 
Guilford County, 221 N.C. 308, 20 S.E. 2d 332; Hides v. 
Kearney, 189 N.C. 316, 127 S.E. 205. The rules against 
retrospective construction have rigid application where 
the rights of the parties depend upon contract. Moody v.
Transylvania County, ------ N.C. ------ , ------  S.E. 2d ------ ;
Rostan v. Huggins, 216 N.C. 386, 5 S.E. 2d 162. This rule 
is general in its application. 25 RCL 787; 20 Minn. L. 
Rev. 775.

As directed by the order of the Supreme Court (386 
U.S. 670), we have reconsidered our former decision



42

(267 N.C. 341) in the light of the February 7, 1967 DHUD 
directive. After review, we conclude that 15 days prior 
to the expiration date of the lease, the Housing Authority, 
without explanation, notified the tenant that her lease 
would not be renewed. That procedure followed the terms 
of the lease. Before the expiration date the defendant 
demanded a hearing. The Manager of the Authority con­
ferred with her counsel but not with her. She refused to 
vacate, charging her lease was being vacated because of 
her having been elected President of the Parents’ Club. 
No evidence was offered as to the purposes of the club 
or that its activities conflicted with the interests of the 
Authority. The Manager of the Authority stated un­
equivocally under oath that the termination of the lease 
had no connection whatever with the tenant’s activities 
in connection with the Parents’ Club. Judge Bickett so 
found. The finding was supported by competent evidence 
and should be conclusive. The directive of February 7, 
1967 has no retroactive force. All critical events took 
place months before that date. This view does not require 
us to consider the directive on any basis except that it 
has no application to this case.

The judgment entered by Judge Bickett in the Superior 
Court of Durham County is supported by the record. 
Our original decision stands. The re-exarnination discloses 
No Error.

A  T rue Copy 
A drian  J. N ew ton  

Clerk  oe th e  S uprem e  C ourt 
oe N orth  Carolina

B y  F rances P. M acon 
D ep u ty  Clerk

October 23, 1967



43

[fol. 11]
F ou rteen th  D istrict 

S uprem e  Court of N orth  Carolina 

Fall Term 1967 

No. 765

H ousing  A u th o rity  op t h e  Cit y  op D urham

v .

J oyce C. T horpe

Order S taying  E xecution  op J udgm ent

The defendant in the above-entitled ease having filed 
a petition for stay of execution of judgment of the General 
Court of Justice, Superior Court Division of Durham 
County, which judgment was upheld by the Supreme 
Court of North Carolina in an opinion filed 11 October 
1967, in which No Error was found in the trial in the 
General Court of Justice, Superior Court Division of 
Durham County, and the defendant having stated her 
intention of filing a petition for writ of certiorari in the 
Supreme Court of the United States:

I t is N ow  T herefore Ordered that upon the filing of 
the bond hereinafter mentioned, execution of the judgment 
rendered at the October 1965 Civil Session of Durham 
County Superior Court be and the same is hereby stayed 
for a period of ninety days from 11 October 1967, the 
date on which the opinion of this Court was filed, and 
in the event that the defendant, on or before ninety days 
after 11 October 1967, files in the Supreme Court of the 
United States an application for writ of certiorari, such 
execution shall be further stayed until the Civil Session 
of the Superior Court of Durham County next ensuing



44

the denial of said writ, if tlie same be denied, or until 
the Civil Session of the Superior Court of Durham County 
next ensuing the final determination of the matter by the 
Supreme Court of the United States if the aforesaid 
petition for writ of certiorari is allowed; and,

I t is F u rth er  O rdered that the said  stay  o f  execu tion  
is and shall be u pon  the con d ition  that the defen dan t 
shall file a g o o d  and  sufficient b on d  in the am ount o f
$......................with a surety, to be approved by the Clerk
of the General Court of Justice, Superior Court Division,
said bond of $................ .....  to be filed with the Clerk
[fol. 12] of the General Court of Justice, Superior Court 
Division of Durham County and to guarantee the payment 
of the judgment of the Durham County Superior Court, 
including the amount to be hereafter determined that that 
court, as provided in its said judgment, as reasonable 
rent for the premises from 1 November 1965 until the 
premises are vacated by the defendant, together with 
interests, costs and such other sum as the plaintiff is 
entitled by law to recover of the defendant, if the applica­
tion of the defendant to the Supreme Court of the United 
States for a writ of certiorari be denied or if such appli­
cation be granted and the determination of that Court 
upon its hearing of the matter be that the decision of 
the Supreme Court of North Carolina, set forth in the 
opinion of this Court issued 11 October 1967 is affirmed 
or otherwise upheld.

This the ........... day ...................... , 1967.

Chief Justice of the Supreme Court 
of North Carolina



45

[fol. 13]
F ourteenth  D istrict 

S uprem e  C ourt op N orth  Carolina 

F all  T erm , 1967 

F rom D u rham

H ousing  A u th o rity  of th e  C it y  of D u r h a m ,

Plaintiff,
vs.

J oyce T h orpe ,
Defendant.

P etition  for S tay  of E xecution  of J udgm ent

T o : T h e  H onorable, th e  Ch ie f  J ustice of t h e  S uprem e  
Court of N orth  C arolina and th e  A ssociate J ustices 
T hereof :

Defendant, through her counsel, respectfully moves the 
Court for a S tay  of E xecution  of th e  J u dgm ent  in this 
cause and shows unto the Court the following matter in 
support of her M otion f o r  a  S tay  of E xecution  of t h e  
J udgm ent against her:

The Opinion of this Court on Defendant’s Appeal was 
filed on the 11th day of October, 1967; that, on her appeal, 
the defendant urged constitutional questions and others 
which were ruled upon by the Court in the Opinion which 
affirmed the Superior Court Judgment against defendant; 
that the defendant is desirous of seeking a review of the 
constitutional questions involved by proper application 
to the Supreme Court of the United States; that, in order 
to preserve her right of review by the Supreme Court 
of the United States, the Petitioner is in need of a S tay



46

of E xecution  of t h e  J udgm ent against the defendant; 
that, the Mandate of this Court has not been certified to 
the General Court of Justice, Superior Court Division of 
Durham County.

W herefore, the defendant prays that a Stay of Execu­
tion be entered by this Court to the end that the defendant 
may seek a review by the Supreme Court of the United 
States upon the constitutional questions presented by her 
appeal.

This 17th day of October, 1967.

M. C. B urt, J r .
M cK issick & B urt

213Y2 West Main Street
Durham, North Carolina
B y : M. C. B urt, J r .



S uprem e  C ourt op th e  U n ited  S tates 

No. 1003—October Term, 1967

47

J oyce C. T horpe , Petitioner,

v .

H ousing  A u th o rity  op th e  City" of D urham

Order A llow ing  Certiorari— M arch  4, 1968

The petition herein for a Yvrit of certiorari to the Su­
preme Court of the State of North Carolina is granted, 
and the case is placed on the summary calendar.



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