THE LIBRARY OF THE
UNIVERSITY OF
NORTH CAROLINA
AT CHAPEL HILL
THE COLLECTION OF
NORTH CAROLINIANA
C3U0
N87a
v.hQ
1978/79
UNIVERSITY OF N.C. AT CHAPEL HILL
00033947392
FOR USE ONLY IN
THE NORTH CAROLINA COLLECTION
NORTH CAROLINA
VOLUME 48
Number 1
FUS L. EDMISTEN
TORNEY GENERAL
^8 N.C.A.G. No. 1 Pages 1 through 83
NORTH CAROLINA
ATTORNEY GENERAL
REPORTS
Opinions of the Attorney General
July 1, 1978 through December 31, 1978
MAILING ADDRESS:
Post Office Box 629
Raleigh, North CaroHna 27602
I
AlS7a
^ RUFUS L. EDMISTEN j^'Tihi
Attorney General
^ames F. Bullock Andrew A. Vanore, Jr.
Jenior Deputy Senior Deputy
Attorney General Attorney General
Robert Bruce White, Jr.
Senior Deputy Attorney General
fean A. Benoy William W. Melvin
deputy Attorney General Deputy Attorney General
Millard R. Rich, Jr.
Deputy Attorney General
harles H. Smith Howard A. Kramer
\dministrative Deputy Deputy Attorney General
Attorney General for Legal Affairs
John A. Elmore, II
Special Assistant to the Attorney General
^yron C. Banks Charles J. Murray
>ster V. Chalmers, Jr. Dennis P. Myers
Buie Costen WilHam F. O'Connell
bavid S. Crump William A. Raney, Jr.
Ann Reed Dunn James B. Richmond
Herbert Lamson, Jr. Jacob L. Safron
John R. B. Matthis Eugene A. Smith
Edwin M. Speas, Jr.
Special Deputy Attorneys General
Archie W. Anders
Rudolph A. Ashton, III
Isaac I. Avery, III
Rebecca R. Bevacqua
David R. Blackwell
George W. Boylan
WiUiam F. Briley
EHsha Harry Bunting, Jr.
Ehzabeth C. Bunting
Joan H. Byers
James M. Carpenter
H. Al Cole, Jr.
John C. Daniel, Jr.
Thomas H. Davis, Jr.
Amos C. Dawson, III
Roy A. Giles, Jr.
Frank Graham
Richard L. Griffin
Donald W. Grimes
Guy A. Hamlin
Norma S. Harrell
Claude W. Harris
Ralf F. Haskell
Charles M. Hensey
Alan S. Hirsh
Patricia B. HoduHk
I. B. Hudson, Jr.
Ben G. Irons, II
Douglas A. Johnston
Sandra M. King
Leigh E. Koman
Richard N. League
George W. Lennon
James E. Magner, Jr.
Nonnie F. Midgette
Thomas F. Moffitt
Mary I. Murrill
Robert W. Newson, III
Daniel C. Oakley
George J. Oliver
WilHam B. Ray
Robert R. Reilly
Marilyn Y. Rich
Alfred N. Salley
Jo Ann Sanford
James P. Smith
Donald W. Stephens |
James L. Stuart
Jane R. Thompson
James M. Wallace, Jr.
Acie L. Ward
Robert G. Webb
W. Woodward Webb
Thomas B. Wood ,
Assistant Attorneys General
Benjamin G. Alford
Sylvia X. Allen
Jean Boyles
Christopher P. Brewer
Henry H. Burgwyn
Robert E. Cansler
Lucien Capone, III
Francis W. Crawley
Christopher S. Crosby
Susan L. Hartzoge
Robert L. Hillman
Lemuel W. Hinton
Grayson G. Kelley
R. James Lore
C. Jan Napowsa
Mary E. Noonan
John C. Prather
Marvin Schiller
Steven M. Shaber
Tiara B. Smiley
JuHa A. Talbutt
T. Michael Todd
Kaye R. Webb
Sarah C. Young
Associate Attorneys
5 July 1978
Subject
:
Requested by:
Question:
Conclusion:
Motor Vehicles; Chauffeur's License
Toni Foxwell
Transportation Planning Section
Department of Transportation
Does North Carolina law require volunteer
operators, operating their own vehicle of
less than nine passenger capacity,
transporting elderly citizens to nutrition
sites, to hold a chauffeur's hcense if such
owner/operator is reimbursed once for
mileage at the rate of 15 cents per mile?
No, reimbursement at the rate of 15 cents
per mile would not be transporting persons
or property for compensation.
The generally accepted reimbursement rate is 15 cents per mile for
a private passenger vehicle and, as such, is considered reimbursement
for actual costs. Under the requirements for chauffeur's license,
reimbursement for actual costs would not fall within the definition
"... transportation of persons or property for compensation." In our
opinion, such reimbursement would not be for compensation.
Rufus Edmisten, Attorney General
William W. Melvin
Deputy Attorney General
5 July 1978
Subject: Mental Health; Area Mental Health
Authorities; Licenses and Licensing;
Requirement for Hcensing of Local Mental
Health Facilities
Requested by: R. J. Bickel
Deputy Director for Administration
Division of Mental Health and Mental
Retardation Services
Question: Under current statutes dealing with Area
Mental Health Authorities are the following
required to be licensed:
(A) Satellite units of an Area Mental
Health Authority?
(B) Agencies with which the Area Mental
Health Authority contracts for services
statutorily required of the Area Mental
Health Authority?
Conclusion: The entities described in both (A) and (B)
above are required to obtain hcenses.
This Office has previously issued an opinion dealing with the
Hcensing of various types of local mental health facilities. See 45
N.C.A.G. 51 (1975). Since the date of that prior opinion, however,
the statutory basis for Area Mental Health Programs and Area Mental
Health Authorities has been completely rewritten. The answers to
the questions posed here are now found in Article 2F, Chapter 122
and G.S. 143B-147a(2)e.
G.S. 122-35.51, effective July 1, 1977, provides as follows:
"An area mental health facility operated under the
provisions of Chapter 1 22 of the General Statutes shall
obtain a license permitting such operation. Subject to
standards governing the operation and hcensing of
these facilities set by the Commission for Mental
Health and Mental Retardation Services, the
Department of Human Resources shall be responsible
for issuing licenses."
An "Area Mental Health Facility" is defined by G.S. 122-35.36(3)
in the following language:
"(3) Area Mental Health Facility. - A mental health
facility, pubhc or private, estabhshed to serve the
needs of a designated catchment area in mental health,
mental retardation, or substance abuse."
Significantly, G.S. 143B-147a(2)e authorizes and requires the
Commission for Mental Health and Mental Retardation Services to
estabUsh standards and adopt rules and regulations for the Ucensing
of all area or community mental health facihties "of whatsoever
nature" pursuant to Article 2F of Chapter 122.
As a result of the above-described provisions, it is clearly the intent
of the General Assembly that all units and service-providing agencies
to the Area Mental Health Authorities be hcensed by the Department
of Human Resources utilizing standards, rules and regulations
promulgated by the Commission for Mental Health and Mental
Retardation Services.
Rufus L. Edmisten, Attorney General
WiUiam F. O'Connell
Special Deputy Attorney General
5 July 1978
Subject:
Requested by:
Question:
Education; Superintendent; Duration of
contract of employment of new
superintendent where vacancy occurs in the
office of superintendent.
John W. Hardy, Attorney for the Guilford
County Board of Education
Where the superintendent resigns before
the end of his contract period, or a vacancy
occurs in the superintendency for whatever
reason, may the Board of Education extend
to the new superintendent a two or four
year contract?
-3-
Conclusion: Yes. Where a vacancy occurs in the office
of the superintendent, the vacancy may be
filled on a temporary basis, or it may be
filled for a specific two or four year period.
The former superintendent of the Guilford County schools
submitted his resignation effective June 30, 1978, with one year
remaining on his contract. The question arises whether the new
superintendent may be hired for a two or four year term, or is
the Board restricted to offering the new superintendent a contract
of only one year, which is the period remaining on the former
superintendent's contract.
G.S. 115-55 provides in pertinent part:
"In case of vacancy by death, resignation or otherwise
in the office of a county or city superintendent, such
vacancy shall be filled by the county or city board
of education in which such vacancy appears."
G.S. 115-39 provides in pertinent part:
"Such superintendent shall take office on the
following July 1 and shall serve for a term of two
or four years or until his successor is elected and
quaUfied. The superintendent shall be elected for a
term of either two or four years, which term shall
be in the discretion of the county board of education."
Construing G.S. 115-39 and 115-55, particularly those portions of
each statute above quoted, it would appear that the superintendent
of a county school administrative unit shall serve a term of two
or four years, or until his successor is elected and qualified, and
that in choosing a successor the board of education has the discretion
in electing the successor for either two or four years. To interpret
these statutes in such a way that would restrict a board of education
from contracting with a successor to a resigning superintendent for
any period of time greater than the length of time remaining on
his unexpired contract, would create a difficult situation in
employing such a successor. For example, in the event a
superintendent died while in office leaving six months on his
-4-
contract, one can readily see that a qualified person would be very
reluctant to enter into a contract for six months without any
assurance that he could obtain a new contract for either two or
four years. It is our opinion that the language contained in either
G.S. 115-39 or 115-55 does not require such an interpretation and
in fact does give a board of education sufficient discretion to fill
a vacancy with a new contract term of either two or four years.
The conclusion stated herein does not in any way affect or overturn
an earlier opinion issued by this Office and reported in 40
N.C.A.G.R. 261, wherein it was concluded that a local board of
education does not have the authority, with the superintendent's
consent, to terminate the superintendent's current contract of
employment prior to the specified termination date set out in the
contract and to thereafter enter into a new contract of employment
as superintendent with the same individual. The opinion rendered
today deals only with a situation where a vacancy occurs in the
office of superintendent and a new contract is entered into with
an individual other than the previous superintendent.
Rufus L. Edmisten, Attorney General
Andrew A. Vanore, Jr.,
Senior Deputy Attorney General
7 July 1978
Subject: Counties; Cities; Collection of Taxes;
Interlocal Cooperation; G.S. 160A-460 et
seq; G.S. r60A-146.
Requested by: Robert C. Cogswell, Jr.
City Attorney
City of Fayetteville
Question: May a city and the county in which it is
situated enter into an interlocal
undertaking under which the city agrees to
designate the county tax collector as city
tax collector?
-5-
Conclusion: Yes.
Article 20 of Chapter 1 60A of the North Carolina General Statutes,
entitled Interlocal Cooperation, authorizes any unit of local
government (defined in G.S. 160A-460 to include cities and
counties) to enter into an agreement with any other such unit or
units for the purpose of carrying on an undertaking. G.S. 160A-460
defines an undertaking as
"the joint exercise by two or more units of local
government, or the contractual exercise by one unit
for one or more other units, or any administrative or
governmental power, function, public enterprise, right,
privilege, or immunity of local government."
Since taxation is a governmental power and function, a contractual
arrangement for the collection of taxes-including an agreement
whereby one unit of local government designates another unit's tax
collector as its own-would seem to be the very kind of interlocal
undertaking contemplated by Article 20.
G.S. 160A-146, Council to organize city government, in no way
defeats the conclusion that such an agreement is a proper one.
G.S. 160A-146 relates only to the powers of the city council with
respect to the allocation of duties within municipal government. It
has no application to the matter of interlocal cooperation, which
is governed exclusively by G.S. 160A-460 et seq. Moreover, even
if G.S. 160A-146 were apphcable, it would not be violated by the
agreement in question. The office of city tax collector is not
abolished by the agreement, nor are the duties of the city tax
collector assigned elsewhere. The position continues to exist; it is
simply occupied by an individual who happens also to serve as
county tax collector.
Rufus L. Edmisten, Attorney General
Marilyn R. Rich
Associate Attorney
24 July 1978
Subject:
Requested by:
Question:
Conclusion:
Insurance; Tax on group insurance
premiums; group insurance procured by
North Carolina Farm Bureau agents
through a North CaroHna Farm Bureau
insurance agency from an IlUnois agency
and holder of a group policy issued by a
California insurance company.
John R. Ingram
Commissioner of Insurance
Are premiums collected from various
insureds in state by a North Carolina
insurance agency and remitted out of state
for group insurance issued by an insurance
company that is not Ucensed in North
CaroUna subject to a 5% premium tax
imposed by G.S, 58-53.3?
Yes.
Sequoia Insurance Company (hereafter Sequoia), a California
corporation that is not Hcensed to sell insurance in North Carolina,
has issued an "Errors and Omissions" master group policy (No. EL
20-10-11) to American Agricultural Insurance Agency, Inc.
(hereafter AAIAI. AAIAI is an Ilhnois corporation and is not
licensed in North Carolina. In turn, AAIAI issues certificates of
"" insurance to, among others, 100 and more North Carolina Farm
Bureau agencies. Premiums for such insurance are paid annually by
each county agency to the North Carolina Farm Bureau Insurance
Agency, Inc. (hereafter N. C. Agency). When all premiums for each
covered agency or agency have been collected, the N. C. Agency
forwards its single check for the premiums to AAIAI. AAIAI
responds by issuing renewal certificates to the covered agents or
agencies. No payment is made by anyone to the State of North
Carolina as a tax on the premiums.
G.S. 58-53.3 requires that:
-7-
"When any person procures insurance on any risk
located in this state with an insurance company not
licensed to do business in this state, it shall be the
duty of such person to deduct from the premium
charged on the policy or policies for such insurance
five per centum (5%) of the premium and remit same
to the Commissioner of Insurance of the state...."
There are several statutory requirements for tax liability: (1) The
tax is imposed on a person. G.S. 58-2(7) defines a person as "an
individual, aggregation of individuals, corporation, company,
association and partnership." The N. C. Agency comes within the
statutory definition of person. (2) There must be a procurement.
The N. C. Agency collects the premium money, accounts for it,
administers to the program statewide, and forwards the gross
premium to AAIAI for the commodity. A 5% brokerage commission
is withheld from gross premiums by the N. C. Agency for its
services. Upon receipt of the premium from the N. C. Agency,
AAIAI issues the several certificates of insurance to the county
agencies. These actions of the N. C. Agency clearly constitute a
procurement. (3) Insurance must be procured. There is no
controversy but that the certificates issued by AAIAI under the
Sequoia master policy constitute insurance. (4) The insurance must
cover a risk located in this state. Here the risk is to protect against
liabihty from errors and omissions of several hundred agents in the
performance of their jobs at 100 and more locations in the state.
It is quite Ukely that the potential risk is exclusively within the
geographic hmits of North Carolina. Consequently the risk is located
within North Carolina. (5) The insurance company must not be
licensed in North Carolina. Again there is no controversy. Sequoia
is an insurance company and is not licensed to do business in North
Carolina. • ,
Each of the statutory requirements is met. Under the statute, the
N. C. Agency has a duty to deduct 5% of the gross premiums and
remit same to the Commissioner of Insurance. Failure of the N. C.
Agency to deduct and remit that percentage would constitute a
violation of G.S. 58-53.3.
Counsel for Sequoia cites several cases to the effect that levy of
the tax would constitute a deprivation of federal constitutional
-8-
rights. State Bd. of Insurance v. Todd Shipyards Corp., 82 S.Ct.
1380 (1962); Connecticut General Life Ins. Co. v. Johnson, 58 S.Ct.
436 (1938); St. Louis Cotton Compress Co. v. State of Arkansas,
43 S.Ct. 125 (1922); Alleger v. State of Louisiana, 17 S.Ct. 427
(1897). Those cases are distinguishable because no tax is sought to
be levied against Sequoia. Moreover, the insurance is against errors
and omissions. Claims would be made by North CaroHna residents
on North CaroUna transactions. Claims would have to be adjusted
and settled in North Carolina.
Additionally, the 100 or more N. C. County Farm Bureaus, (the
insureds) deal with the N. C. Agency to obtain the insurance and
make payment of annual premiums within the state to that same
corporation. Thus, a substantial portion of the recurring negotiation
for the insurance occurs in North Carolina. The totality of those
transactions between the local agencies and the N. C. Agency are
intrastate in nature. These activities are not slight and casual as in
Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292
U.S. 143, 78 LEd. 1178 (1934) but are substantial as in Clay v.
Sun Ins. Office, 377 U.S. 179, 12 LEd. 2d 229 (1964). These facts
are sufficient to provide North Carolina with a substantial nexus
for the tax purposes. See Texas v. New Jersey, 379 U.S. 674, 13
LEd. 2d 596, 85 S.Ct. 626 (1965).
Rufus L. Edmisten, Attorney General
Richard L. Griffin
Assistant Attorney General
31 July 1978
Subject: Mental Health; Area Mental Health
Authorities; Patients' Rights Entitlement
Where Services Are On A Contractual Basis
Requested by: R. J. Bickel
Deputy Director for Administration
Division of Mental Health and Mental
Retardation Services
Question: Do the provisions of G.S. 122-55.1
through G.S. 122-55.14 apply to services
provided for an Area Mental Health
Authority (by a general hospital, etc.) on
a contractual basis?
Conclusion: Yes.
The statutes referred to in the question posed are part of the
"Patients' Rights Bill" enacted by the General Assembly to afford
statutory protection for "basic human rights" of mental patients
in our treatment facilities. See G.S. 122-55.1 and G.S. 122-55.13.
G.S. 122-36(g) contains the following general definition of the term
" treatment facility "
:
"(g) The words 'treatment facility' shall mean any
hospital or institution operated by the State of North
Carolina and designated for the admission of any
person in need of care and treatment due to mental
illness or mental retardation, any center or facility
operated by the State of North Carolina for the care,
treatment or rehabihtation of inebriates, and any
community mental health clinic or center administered
by the State of North Carolina."
A similar definition of the term "treatment facility" as utilized in
the voluntary admission provisions is set forth in G.S. 122-56.2.
G.S. 122-35.49 permits an Area Mental Health Authority to contract
for services statutorily required of it, subject to the following
conditions:
"The area mental health authority may contract with
other pubhc or private agencies, institutions, or
resources for the provision of services, but it shall be
the responsibility of the area mental health authority
to insure that such contracted services meet the rules
and regulations as set by the Commission for Mental
Health and Mental Retardation Services. Terms of the
contract shall require the area mental health authority
to monitor the contract to assure that minimum
standards are met."
-10-
From the above, it is clear that patients served by an Area Mental
Health Authority must be guaranteed the same rights whether they
are served "in-house" or through a contract with a general hospital
or other such facility. This is clearly the intent of the statutes.
Further, the failure to guarantee these same rights regardless of
where services are rendered would probably raise a serious question
under the Equal Protection Clauses of the North Carolina
Constitution and the Constitution of the United States.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Special Deputy Attorney General
2 August 1978
Subject
:
Public Offices, Constitutional Law; Double
Office Holding; Counties, Municipalities;
PoUce Officer Elected as County
Commissioner, Article VI, Section 9, North
Carolina Constitution; G.S. 160A-284;
G.S. 128-1.1.
Requested by:
Question:
Paul S. Messick, Jr.
Town Attorney
May a town policeman hold concurrently
an elective office?
Conclusion: No.
Article VI, Section 9 of the North Carolina Constitution provides
that no person shall hold concurrently any two or more appointive
offices or any combination of elective and appointive offices except
as the General Assembly shall provide by general law.
Thus without specific authority from the General Assembly, no
person could hold an elective and appointive office concurrently.
II-
On June 30, 1971, the General Assembly enacted Chapter 697,
Session Laws of 1971 which contained G.S. 128-1.1, and which
authorizes "any person who holds an elective office in State or local
government to hold concurrently one other appointive office ... in
State or local government ...".
Also, on June 30, 1971, the General Assembly enacted Chapter 698,
Session Laws of 1971, which contained G.S. 160A-284, and which
authorizes a policeman, a chief of police and auxiliary policemen
to hold concurrently any other appointive office pursuant to Article
VI, Section 9 of the Constitution. In 1975, G.S. 160A-284 was
amended to permit an auxihary policeman to hold concurrently any
elective office.
Statutes dealing with the same subject matter must be construed
in pari materia, and harmonized, if possible, to give effect to each.
Where one statute deals with the subject matter in detail with
reference to a particular situation and another statute deals with
the same subject matter in general terms, the particular statute
controls unless it appears that the General Assembly intended to
make the general act controlling. 12 Strong's N.C. Index 3d,
Statutes, Sec. 5.
Applying the rules of statutory construction, and the rule of
ascertaining the legislative intent, it is our opinion that
G.S. 1 60A-284 is the controlling statute and that a policeman other
than an auxiliary policeman, is not authorized to hold concurrently
an elective office.
Thus should the person in question be elected to the office of
County Commissioner, he would, upon acceptance of said office,
be disqualified to serve as a municipal police officer.
Rufus L. Edmisten, Attorney General
James F. Bullock
Senior Deputy Attorney General
•12-
2 August 1978
Subject:
Requested by:
Question:
Conclusion:
Municipalities; Powell Bill Fund; Village of
Pinehurst
Joseph R. Monroe, Jr.
Attorney for Village of Pinehurst
Is Pinehurst, Inc., a private real estate and
development corporation which renders
fire and police protection and maintains
streets for the Village of Pinehurst, eligible
to receive Powell Bill Funds (gasoline tax
funds) under Section 5 of the provisions
of Chapter 993 of the 1949 Session Laws?
No. The Village of Pinehurst is constituted
a municipal corporation only for such
purposes as are listed in Chapter 993 of
the 1949 Session Laws and it cannot
comply with the conditions of eligibility to
receive Powell Bill Funds as it is not a
municipal corporation for those purposes.
The gasoline tax funds appropriated to municipalities for use in the
construction and maintenance of municipal streets are referred to
as Powell Bill Funds. G.S. 136-41.1. The question is presented as
to the right of Pinehurst, Inc. to receive Powell Bill Funds under
the provisions of Section 5 of Chapter 993 of the 1949 Session
Laws. Section 1 of the Act provides that "For all purposes of this
Act, but only for such purposes'' the- area described constitutes "the
municipal corporation to be known and hereafter referred to as
Pinehurst "
.
Section 5 of the Act provides that "the municipality of Pinehurst
as herein defined shall be entitled to all such refunds and moneys
as are allowed or conferred upon towns and cities of the State"
and "shall be entitled likewise to all such gasoline taxes on account
of roads . . , that other cities and towns may be entitled to and
to the same extent as if the said Pinehurst was a regularly
incorporated town or city." A private corporation, Pinehurst, Inc.,
13-
developed the Village of Pinehurst and performs services such as
the maintenance of roads and sidewalks, fire protection and police
protection for some of its residents. The Act provides that inasmuch
as "Pinehurst, Incorporated, . . . maintains and operates at its own
expense all public streets and sidewalks in Pinehurst and furnishes
at its own expense all the pubHc facilities and utilities enjoyed by
the public within said territory of Pinehurst, all such refunds,
moneys or property as would be payable or belong to Pinehurst
as a regular municipahty under the provisions of this Act shall be
paid and delivered to Pinehurst, Inc. to reimburse it for such
expenditures in behalf of Pinehurst in its capacity as a municipal
corporation."
G.S. 136-41.1 provides for the distribution of "Powell Bill Funds"
"among the several eligible municipalities of the State."
G.S. 136-41.2 contains the provisions for eligibility for receiving the
funds. It provides that (a) no municipality shall be eligible to receive
funds under G.S. 136-41.1 unless it has conducted the most recent
election required by its Charter or general law, whichever is
appHcable, for the purpose of electing the municipal officials.
Subsection (b) provides that no municipality shall be eligible to
receive funds under G.S. 136-41.1 unless it is levied an ad valorem
tax for the current fiscal year of at least five-cents on the $100
valuation upon all taxable property within the corporate limits, and
unless it has actually collected at least 50% of the total ad valorem
taxes levied for the preceding fiscal year. Subsection (c) provides
that no municipality shall be ehgible to receive funds under 136-41.1
unless it has formally adopted a budget ordinance and appropriated
funds for at least two municipal services.
Chapter 993 of the 1949 Session Laws constitutes the Village of
Pinehurst as a municipal corporation only for the purposes Hsted
in that Act. The purposes listed do not include any of the acts
Hsted which are conditions for eligibility for receipt of Powell Bill
Funds. It is not a municipal corporation for the purpose of (a)
electing municipal officials; (b) the levying of an ad valorem tax;
nor (c) the adoption of a budget ordinance. Therefore, this Office
is of the opinion that Pinehurst, Inc. is not entitled to receive
distribution of Powell Bill Funds.
•14-
Rufus L. Edmisten, Attorney General
Eugene A. Smith
Special Deputy Attorney General
8 August 1978
Subject:
Requested by:
Question:
Conclusion:
Mental Health; Area Mental Health
Authority; Involuntary Commitment;
Temporary Custody of Respondent by
Out-Patient Facility Pending Commitment
Hearing
R. J. Bickel
Assistant Administrator for Administration
Division of Mental Health and Mental
Retardation Services
Can a mental health facility without an
in-patient capabihty legally accept a patient
for temporary custody, observation and
treatment prior to his involuntary
commitment hearing in District Court as
required by G.S. 122-58.7?
Yes, if that facihty can meet the needs for
control, safety, care and treatment of the
individual patient involved.
G.S. 122-58.7 provides for a hearing to determine if a respondent
should be involuntarily commited within ten days of the date that
he is taken into custody. Initially, when an individual has been taken
into custody, the respondent is taken before an evaluating physician
who determines if he meets the standards for involuntary
commitment. If the evaluating physician determines that the
respondent does meet the standards for involuntary commitment,
then the law enforcement officer is required to take the respondent
to ". . .a community mental health facility or pubhc or private
facility designated or licensed by the Department of Human
Resources for temporary custody, observation, and treatment of
15-
mentally ill or inebriate persons pending a District Court hearing."
(G.S. 122-58.4(c))
Upon arrival at that facility, the respondent must then be examined
by a second qualified physician for a determination of whether he
meets the standards for involuntary commitment. If this physician
finds that the respondent does meet the standards, "... he shall
hold the respondent at the facility pending the District Court
hearing." (G.S. 122-58.6(a))
The situation described in the question posed is quite different from
that wherein either of the two physicians decides that the respondent
does not meet the standards for involuntary commitment~i.e., in
those situations the first physician may release the individual and
the proceedings will terminate (G.S. 122-5 8.4(c)), and the second
physician may release the respondent without any further treatment
but with the proviso that he appear for his hearing
(G.S. 122-58.6(a)).
From the description of the facility under discussion, it is obvious
;
that it is not capable of accepting a patient in a twenty-four hour
a day in-patient status. Thus, the answer to the question really turns
on the interpretation of the words "custody, observation and
treatment" (G.S. 122-58.4) and "hold" (G.S. 122-58.6). In so.
interpreting this language, the following expressed intention of the
General Assembly must be considered:
". . . It is further the policy of the State that each
treatment facihty shall insure to each patient the right
to live as normally as possible while receiving care and
treatment." (G.S. 122-55.1)
Further, the General Assembly has specifically empowered the trial 1
judge at the time of the commitment hearing to commit the;
respondent to either in-patient or out-patient treatment.
(G.S. 122-58. 8(b)). Additionally, in interpreting the statutory
provisions, it is very important to recognize that it is presently
generally accepted that an individaul who is involuntarily detained
or committed as a mental patient has a constitutional entitlement
to treatment in the least restrictive setting available, consistent with
legitimate control, safety, care and treatment objectives.
-16-
The term "custody" would seem to have different meanings as
(applicable to different settings-e.g., a quite different situation is
, {contemplated when referring to the imprisonment of a convicted
. 'prisoner from that involved in the custody of children. As affecting
the detention involved of a mental patient prior to his hearing, the
fulfillment of the requirement for custody would seem to be met
if conditions are imposed which significantly confine or restrain the
freedom or liberty of the individual if those measures are appropriate
in that particular situation. CompaiQ Jones v. Cunningham, 371 U.S.
236 (1963); Calley v. Callaway, C.A.Ga., 519 Fed. 2d 184 (1975).
G.S. 122-58.6 (c) authorizes the quahfied physician attending the
respondent to administer reasonable and appropriate medication and
treatment that is consistent with accepted medical standards. It
would seem that, in a situation where out-patient treatment,
probably including medications, would suffice to meet the needs
for control, safety, care and treatment under accepted medical
standards, then the receipt of a respondent at a facihty capable of
rendering these services would be permissible.
As with the situations wherein the District Court judge at the
: commitment hearing directs out-patient treatment rather than ' in-patient treatment, it is perhaps conjectural exactly what ij
percentage of respondents who meet the standard of "being J
imminently dangerous" can be satisfactorily handled as out-patients
at such early stages of treatment. However, the determination of !!l
appropriateness of this mode of custody must be made on an ad
^
hoc basis. It might also be noted that the delineation of facilities k
capable of being utilized as pre-hearing treatment facilities and the
degree of services they are capable of. rendering is properly a matter
included in the local plans required by G.S. 122-58.16.
Rufus L. Edmisten, Attorney General
Wilham F. O'Connell
Special Deputy Attorney General
10 August 1978
Subject: State Departments, Institutions and
Agencies; Department of Transportation;
-17-
k
Municipalities; Streets and Highways;
Weight Limits; Special Permits
Requested by: Mr. F. Douglas Canty
Assistant City Attorney for Charlotte
Question: 1. Does the City of Charlotte have the
authority to issue special permits
authorizing the operation, over
city-maintained streets, of passenger buses
of a weight exceeding the maximum
specified in G.S. 20-118(8)?
2. Does the North Carolina Department
of Transportation have the authority to
issue special permits authorizing the
operation, over both state-maintained and
city-maintained streets, of passenger buses
of a weight exceeding the maximum
specified in G.S. 20-118(8)?
Conclusion: 1. No. Although the municipality has
authority under the provisions of
G.S. 160A-296 and 300 to restrict and
regulate traffic on municipal streets,
including authority for the issuance of
special permits for the purpose of the
( , licensing of overweight passenger buses
under the provisions of G.S. 2()-118(8).
2. Yes. The Department of
Transportation has the authority to issue
special permits for overweight passenger
buses in order that the applicant may
obtain a license to operate the passenger
bus on both the state-maintained and
^ city-maintained streets pursuant to the
provisions of G.S. 20-118(8).
The City of Charlotte has on order thirty-four new passenger buses
for use by its public transit system, which, when fully loaded, will
-18-
n
exceed the statutory weight limits estabhshed by G.S. 20-118(8),
G.S. 20-115 provides that the maximum size and weight of vehicles
specified in the article shall be lawful throughout the State and local
authorities shall have no power or authority to alter said limitations
except as express authority shall be granted in this Article. The
foregoing restriction raises the question of the authority of a
municipaUty to grant special permits for the operation of overweight
vehicles on municipal streets as G.S. 20-119 provides that
municipalities may grant permits in writing authorizing the applicant
to move a vehicle over the streets of the city or town, the size
or width exceeding the maximum expressed in the article. We find
no express authority in the Article for municipalities to alter the
weight limitations nor to issue special permits for the operation of
overweight vehicles on the streets.
The municipahty has specific statutory authority to adopt such
ordinances for the regulation and use of its streets as it deems best
for the pubhc welfare of its citizens and to provide for the regulation
and diversion of vehicular traffic upon its streets. Genes, Inc. v.
Charlotte, 259 N.C. 118, 120 (1963). G.S. 160A-296 provides that
a city shall have general authority and control over all public streets
p
which includes but is not Umited to (1) the duty to keep pubHc
streets in proper repair; (5) the power to regulate the use of public |s
streets. G.S. 160A-300 provides that a city may by ordinance
prohibit, regulate, divert, control and limit pedestrian or vehicular
traffic upon the public streets, sidewalks, alleys and bridges of the
city. Unless otherwise restricted by State law, the municipality has
the authority to regulate the weight of vehicles using its streets and
to issue permits for the operation of overweight vehicles on <
municipal streets under the authority of those statutes. 75 ALR
2d 396 Anno. Highways - Weight Limitations.
The foregoing cited statutes authorizing municipalities to regulate
streets and traffic have been in effect since 1919. Chapter 136, 1919
Session Laws. These statutes however were rewritten and reenacted
in 1971. Chapter 968, 1971 Session Laws. G.S. 20-115 and
G.S. 20-1 19 were originally passed 1927. At that time the language
in the first sentence of G.S. 20-119 authorized local governments
and the State Highway Commission to issue special permits for
oversize or overweight vehicles. The 1927 Statute provided in part
as follows:
-19-
"The State Highway Commision and local authorities
in their respective jurisdiction may in their discretion,
upon appUcation in writing and good cause being
shown therefore, issue a special permit in writing
authorizing the applicant to operate or move a vehicle
of its size or weight exceeding the maximum specified
in this Act upon any highway under the jurisdiction
for the maintenance of which the body granting the
permit is responsible." Chapter 148, Section 38, 1927
Session Laws.
However, after the county road system was taken over by the State i
Highway Commission, the 1937 Legislature rewrote the motor,
vehicle statutes. G.S. 20-1 19 was amended by deleting the foregoing
underlined portion which authorized local governments to issue
overweight permits. The purpose was apparently an attempt to
reflect the change in the jurisdiction over county roads. The proviso
as now appears was added, which provides that municipalities may
issue special permits to move a vehicle over the streets of thei
municipalities may issue special permits to move a vehicle over thej
streets of the municipality, the size or width exceeding the maximumj
expressed in the Act. Chapter 407, Section 83, 1937 Session Laws.;
This left G.S. 20-115 somewhat ambiguous. The use of the termj
"size or width" in the proviso, rather than "size or weight" mays
also have been an oversight. An unsuccessful attempt was made in,
1957 to clarify G.S. 20-119 by the passage of Chapter 1129 of
the 1959 Session Laws. That session law is entitled "An act to clarify
the issuance by the State Highway Commission of special permits
for vehicles of excessive size or weight." It was still ambiguous after!
the amendment. A further review of the legislative history for the!
purpose of this opinion would serve no purpose except to show,
that G.S. 20-1 19 was ambiguous when rewritten in 1937 and is still
j
ambiguous after an attempted clarification in 1959. 1
MunicipaUties have the duty and authority to maintain the Municipal
j
Street System and the Department of Transportation has the duty
and authority to maintain the State Highway System. G.S. 136-66.1.
Both are given authority to regulate traffic and the use of public^
streets. The Department of Transportation is given express authority;
to (1) classify county roads as light traffic roads and to post those
j
roads, G.S. 20-1 18(5); (2) to establish truck routes and to prohibit
-20-
trucks from using certain routes, G.S. 20-116(h), G.S. 20-141(i);
(3) to issue special permits for overweight vehicles, G.S. 20-119;
(4) and to restrict load limits on bridges on the State Highway
System, G.S. 136-72, Express authority is not given to
municipaUties to Hmit the load Hmits on bridges, to post and restrict
roads, to establish truck routes over municipal streets, nor to issue
special permits for overweight vehicles. A review of the legislative
history of the municipal laws and G.S. 20-1 19 and G.S. 20-1 16 does
not indicate an intent to exclude municipal regulations in these areas.
This Office has in the past advised that State law does not prohibit
municipalities (1) from posting weight hmits on bridges on the
'Municipal Street System; (2) from restricting trucks on certain
streets to prevent damage or destruction by vehicles carrying the
'legal load limit; (3) and from establishing truck routes, so long as
ithe regulations are reasonable. This Office is of the opinion that
municipalities have authority to issue special permits for the
movement of overweight vehicles over municipal streets, and that
the issuance of such permits is not an alteration of the weight hmits
in contravention of G.S. 20-115. However, the municipality has no ^
authority to issue such special permits for operation of overweight
[passenger buses for the reasons hereinafter discussed. (\
The Ucensing of "passenger buses" for operation on the highways
J*
of the State is handled differently from the Ucensing of other
J
vehicles. A certification as to the weight of a passenger bus is
^
required before it can be Hcensed to operate on the highways. Prior
to the 1978 Amendment by the General Assembly, G.S. 20-118(8)
prohibited the issuance of a special permit for the operation of a
passenger bus exceeding the statutory weight hmits. The 1977 <
General Assembly on June 16, 1978, amended G.S. 20-118(8) by
repealing the prohibition against the issuance of overweight permits
for passenger buses, and by providing that "Unless the apphcant
holds a special permit from the Department of Transportation, no
license shall be issued to any passenger bus", for operation on the
highways, which exceeds the weight limits specified therein. Chapter
1178, 1977 Session Laws. The license issued by the Commissioner
of Motor Vehicles authorizes the operation of the "passenger bus"
upon the highways of the State, including those maintained by the
municipahty. A permit from the Department of Transportation is
a prerequisite for the Ucensing of "passenger buses", which will
exceed the weight Umits in G.S. 20-118(8). Therefore, this Office
-21-
is of the opinion that the State has preempted the issuance of specia;
permits for overweight passenger buses for the purpose of Hcensinj
under the provisions of G.S. 20-118(8).
Rufus L. Edmisten, Attorney General
Eugene A. Smith
Special Deputy Attorney General
14 August 1978
Subject:
Requested by:
Question:
Employment Agency; G.S. 95-37;
Definition includes a For Profit Business.;
Mr. John H. Boddie, Director
Private Employment Agency Division
N.C. Department of Labor
Does the definition of employment agencyi
in G.S. 95-37 include a for profit business
that makes a charge on persons seeking!
employment for the service of providing!
them with information about employment!
opportunities, when:
(1) the business advertises specific
positions of employment in the classified
section of one or more newspapers of
general circulation but tells job seekers the
name of the employer offering an
advertised position only after they pay a
"subscription" charge;
(2) the business publishes no printed on
written list of available jobs;
(3) the business disseminates no materiaJ|
or information other than informationi
about employment opportunities; and |
-22-
n
(4) persons who pay for the service are
told about employment opportunities by
means of telephone conversations with
employees of the business and by no other
means?
Conclusion: Yes.
Chapter 95, Article 5 of the General Statutes of North Carolina
authorizes and empowers the North Carolina Department of Labor
to Hcense and regulate individuals and businesses engaged in the
operation of an employment agency. G.S. 95-37 is hereinafter set
forth verbatim:
"§95-37. Employment agency defined.-Employment
agency within the meaning of this Article shall include
any business operated by any person, firm or
corporation for profit and engaged in procuring
employment for any person, firm or corporation in
the State of North Carolina and making a charge on
the employee or employer for the service." (>
To be classified as an employment agency, a business must be:
j^
1. Operated for profit;
2. Engaged in procuring employment "for any
person, firm or corporation in the State of North
i^
Carolina;" and <
3. Charging the prospective employee or employer
for the service.
irhe business described above clearly falls within the parameters of [;.
this statutory definition and is an employment agency within the s
meanmg of G.S. 95-37.
Rufus L. Edmisten, Attorney General
George W. Lennon
Associate Attorney General
-23-
23 August 1978
Subject:
Requested by:
Question:
Conclusion:
Social Services; Welfare Fraud; Client
Interviews; Warnings as to Constitutional
Rights
Mr. Robert H. Ward, Director
Division of Social Services
Must a social worker, before questioning a
client in a suspected welfare fraud case,
inform the cHent of his constitutional
rights?
No, so long as nothing about the
questioning might reasonably cause the
client to believe he was in custody or^
otherwise significantly deprived of his
freedom.
The Fourteenth Amendment to the U.S. Constitution prohibits the
use of a confession which is coerced, either by physical or mental
means. State v. Chamberlain, 263 N.C. 406 (1965). "The test of
admissibiUty of a confession is whether the statements made by the \
defendant were in fact voluntarily and understandingly made. " State
V. Jones, 278 N.C. 88 at 92 (1971). The state courts are bound
by the United States Supreme Court's interpretation of thei
Fourteenth Amendment in Miranda v. Arizona, 384 U.S. 436 (1966),
'
which requires that to insure voluntariness a suspect be warned, priori
to interrogation, of his Fifth and Sixth Amendment rights. The^^
situation that triggers this requirement is a "custodial interrogation". \
Id. at 444. Prior to Miranda, the Court had seemed to hold that I
the decisive stage was reached when the investigation "had begun j
to focus on a particular suspect." Escobedo v. Illinois, 378 U.S.
| 478 at 490 (1964). But Miranda expHcitly Hmited the requirement!
to "custodial interrogations", and the warnings have since been I
required only in such situations. State v. Dollar, 292 N.C. 344^'
(1977); State v. Meadows, 272 N.C. 327 (1968).
Our question now becomes: Is an interview by a social worker
concerning suspected fraud a "custodial interrogation"? \n Miranda
-24-
a custodial interrogation is defined as "questioning initiated by law
enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant
way". Miranda v. Arizona, 384 U.S. at 444. A client brought to
the Department of Social Services for a normal interview of this
type has not been arrested, restrained, or deprived of his freedom.
He is free to leave, is not being questioned in a coercive atmosphere,
and is not at a police station. There are no factors compelling
involuntary testimony.
In accordance with this argument, the New Jersey Supreme Court
has held that social workers need not give Miranda warnings during
investigations of suspected fraud. State v. Graves, 60 N.J. 441
(1972). The Colorado Supreme Court arrived at the same conclusion,
though it was not essential to the holding in that case. People v.
Parada, 533 P.2d 1121 (Colo., 1975). Similarly, in a decision by
the United States Supreme Court, an Internal Revenue Service
special agent investigating potential criminal tax violations was not
required to inform the suspect of his rights. Beckwith v. United
States, 425 U.S. 341 (1976). The Supreme Court distinguished H
between the "focus of the investigation" test and the "custodial ^
interrogation" test, and emphatically apphed the latter. Id. at 345. ^
iln so doing, the Supreme Court affirmed decisions in nine of the 1^
Circuits including the Fourfli Circuit. See, United States v. Browney,
jj
421 F.2d 48 (4th Cir., 1970). !J
I
It should be remembered that the Miranda, warnings are merely a
procedural device to ensure the voluntariness of a defendant's
'statement. Though they are not required in these interviews, any ^
statement, to be admitted, must have been given voluntarily. It
"must not be extracted by any sort of threats or violence, nor
obtained by any direct or implied promises, however sHght, nor by
the exertion of any improper influence." Brady v. United States,
397 U.S. 742 at 753 (1970). Social workers should avoid such
influences. See, People v. Paranda, supra.
Rufus L. Edmisten, Attorney General
Steven Mansfield Shaber
Associate Attorney
-25-
29 August 1978
Subject:
Requested by:
Question:
Health; Certificate of Need; Coverage of
projects commenced before January 1,
1979; G.S. 131-170 et seq.
Mr. Charles W. Houseworth, Jr.,
Health Planner, State Health Planning and
Development Agency
Department of Human Resources
If work has commenced, but not
completed by January 1, 1979, on a "new
institutional health service" proposal and
the proposal has not received approval
under Section 1122 of the Social Security
Act, 42 U.S.C.A. 1320a-l, is the person;
required to obtain a Certificate of Need
pursuant to Chapter 1182, 1977 Session
Laws (Second Session, 1978), (to be
codified at G.S. 131-170 et seq.) before
proceeding further with work on the
proposal?
No, if prior to ratification of the Act he
has proceeded with development of the
new institutional health service as
explained below.
The North Carohna Health Planning and Resource Development Act (
of 1978, ratified by the General Assembly on June 16, 1978, addsj
a new Article 18 to Chapter 131 of the General Statutes which!
requires that before a person undertakes, develops, or offers a new.;
institutional health service he must obtain a Certificate of Need from
j
the Department of Human Resources. Chapter 1182, 1977 Session
Laws (Second Session, 1978). Section 4 of the Act provides that
it will be effective January 1, 1979. In addition. Section 4 provides
two exemptions from coverage: 1) those proposals which received
approval for capital reimbursement under Section 1 1 22 of the Social
Security Act, 42 U.S.C.A., 1320a-l, prior to January 1, 1979, as
long as construction commences before January 1, 1980; and 2)
-26-
Conelusion:
n
those proposals for which application is made between July 1 , 1 978
and January 1 , 1 979 under the Section 1 1 22 program, if the
application is approved and if construction commences before
January 1, 1980. The question at hand is whether a Certificate of
Need is required for a proposal which does not qualify under the
two exemptions and which is not completed by January 1, 1979.
A Certificate of Need "affords the person so designated as the legal
proponent of the proposed project the opportunity to proceed with
the development of such project." Section 131-171(3) of Section
2, Chapter 1182, 1977 Session Laws (Second Session 1978). The
Act reveals that a Certificate of Need will be granted only to those
proposals which the Department of Human Resources finds to be
needed and in conformity with other standards and criteria as set
forth in the Act and developed by the Department. Immediately
prior to ratification a new institutional health service would be
submitted to the Department of Human Resources for a finding
of need only if the proponent desired reimbursement for capital
expenditures under Titles V, XVIH, and XIX of the Social Security
Act, 42 U.S.C.A. 1320A-1. The passage of the Act by the General
Assembly imposes an entirely new Umitation on the opportunity
to proceed with the development of the new institutional health 0"
service. {j-
If the Act is interpreted to require a Certificate of Need when prior
J
to the ratification of the Act the proponent had already proceeded U
with development of the new institutional health service and "^
incurred substantial expense the Act would invade personal and J
property rights protected under the Constitution of this State. See, <
Whaley v. Lenoir County, 5 N.C.App. 319 (1969). On the other
hand, if the Act is interpreted so that it does not apply where a
proponent, prior to ratification, had already proceeded with
development of the new institutional health service such rights will
be protected. The basic rules of statutory construction require the
latter, if reasonable, as a statute will not be construed so as to raise
questions as to its constitutionality if a different construction which
will avoid such question of constitutionality is reasonable. State Milk
Commission v. National Food Stores, Inc. 270 N.C. 323 (1967);
State V. Barber, 180 N.C. 711 (1920). The definition of Certificate
of Need reasonably supports a construction of the Statute which
makes it inapphcable to someone who prior to ratification has
-27-
already proceeded with development of the new institutional health
service. As previously noted, the Certificate of Need allows the
proponent to proceed with development. If the proponent had done
so prior to ratification the Certificate of Need, by definition, would
be unnecessary. Such a construction is also consistent with the
provision that the certificate shall be valid only for the time specified
by the Department of Human Resources, not to exceed 18 months,
and that within such time the proponent must fulfill the specific
performance requirements set forth in the Act for incurring a
financial obligation. Section 131-174 (a) and (b) of Section 2,
Chapter 1182, 1977 Session Laws (Second Session, 1978).
In order to be exempt from the Act, the proponent must have
proceeded with development prior to ratification. Subsequent to
June 16, 1978 and prior to January 1, 1979, the proponent may
be protected only if he receives approval under Section 1122 of
the Social Security Act, 42 U.S.C.A. 1320a-l, in accordance with
Section 4 of the Act.
A person proceeds with development when he "undertake(s) those
activities which will result in the offering of institutional health
service not provided in the previous 12 month reporting period or
the incurring of a financial obHgation in relation to the offering
of such a service." Section 131-171 (8) of Section 2, Chapter 1 182,
1977 Session Laws (Second Session, 1978). Whether or not a person
has undertaken such activities is a question of fact to be settled
on a case-by-case method.
It should be noted that this opinion does not address the application
of the Act to those who, subsequent to January 1, 1979, proceed
with development of a new institutional health service without a
Certificate of Need.
Rufus L. Edmisten, Attorney General
Robert L. Hillman
Associate Attorney General
-28-
5 September 1978
Subject:
Requested by:
Questions:
Conclusions:
Education; County Board of Education;
Condition Subsequent; Undue Restraint
Upon Right of Alienation
Lucas, Rand, Rose, Meyer, Jones and
Orcutt
Attorneys for the Wilson County Board of
Education
(1) Whether the language contained in a
deed to the Wilson County Board of
Education (as it appears below), restricting
the use of land for school purposes and
giving to the grantor, his heirs or assigns
the right to repurchase at a set price if said
condition is breached, constitutes a
condition subsequent?
(2) Whether said language, by
attempting to vest a right to repurchase the
subject property in the grantor, his heirs
or assigns at a set price if the land is no
longer used for school purposes, constitutes
an undue restraint upon the right of
alienation?
(3) Whether the heirs or assigns of the
grantor may assert a valid contract to
repurchase or may the School Board, if it
chooses to dispose of the property, follow
the pubhc auction procedures of
N.C.G.S. 115-126?
(1) No.
(2) Yes.
(3) The School Board may follow the
public auction procedures of
n
29-
N.C.G.S. 115-126 if it should choose to
dispose of the property.
The following facts have been provided: On 20 April, 1922, "H"
and his wife, "W", did convey by warranty deed approximately five
acres of land to Wilson County Board of Education. The
consideration recited in the deed was $750. The following language
appears in the deed after the metes and bounds description:
"It is agreed by the County Board of Education that
if this site is ever abandoned for school purposes that
the site shall be offered for sale first to (the grantor)
or his heirs or assigns at the purchase price herein
named; then in case said (grantor) or his heirs or
assigns do not care to purchase this school site at the
price above named, then the County Board of
Education may sell the same to any other person or
persons at such price as they may consider reasonable
and just."
As to Conclusion (1), the North CaroHna courts have held that
despite the other language used in an instrument, a condition
subsequent is not created unless the grantor expressly reserves the
right to re-enter, or provides for a forfeiture or for a reversion, or
that the instrument shall be null and void. First Presbyterian Church
V. Sinclair Refining Company, 200 NC 469 (1931); Lassiter v. Jones,
215 NC 298 (1939). The clause in question here fails to reserve
any of these rights in the grantor, his heirs or assigns. It instead
attempts to reserve an option to repurchase the land upon the
:
discontinued use of the land for school purposes and at the price
of $750. Thus, it would seem that technically such a clause falls i
short of creating a fee simple or condition subsequent. As is pointed
out in Webster, Real Estate Law in North Carolina, §345, p. 434
(1971) "(v)ery clear language of condition, indicating that title is;
subject to revert upon the occurence of a specified event, must be ;
used. While express language of reverter is not required, anything
less may cause the court to construe the language to create simply
a covenant, charge or trust, or to be mere surplusage".
As to Conclusion (2), the general rule seems to be that there is
a policy in favor of the free alienation of land. As a result, any
-30-
provision in a conveyance which unduly restricts the right of transfer
of the title in any way has been held to be void. Webster, Real
Estate Law in North Carolina, §346(0(2) (1971).
The North Carolina court was faced with a similar fact situation
in the case oi Hardy v. Galloway, 111 NC 519 (1892). There the
deed that was conveyed provided that upon a decision by the grantee
to sell, the grantor would have the first change to repurchase. There
was no reservation as to the exact time for the performance of the
provision or for the price that was to be paid. The court held that
the restriction to reconvey to the grantor upon a decision to sell
the property not only was void for uncertainty in fixing no price
for the repurchase and no time for the performance of the provision,
but also as an unlawful restraint upon alienation. The Court stated
that:
"(t)he restriction is certainly inconsistent with the
ownership of the fee as well, it would seem, as against
pubhc pohcy... In other words, we have an estate in
fee without the power to dispose of or encumber it,
unless first offering it for no definite price to the
grantors, their heirs and assigns. The condition is ^s
repugnant to the grant, and therefore void." Ill NC di
at 524.
The principle of Hardy v. Galloway was reaffirmed by the Court
of Appeals in Jenkins v. Coombs, 21 NC App. 683 (1974).
Ci
The first situation here is similar to the Hardy case in that there
is no definite time set for the performance of the option to
repurchase. Although there is a set price, there is precedent that [j
a fixed price set below the present fair-market value is also an undue
restraint on the fee simple estate and should be held void. Simes, tji
The Law of Future Interest, §114 (2d Ed. 1966).
Since there is no condition subsequent created by the language in
question (as is discussed under Conclusion (1)), the opinion of this
Office is that the attempt to create an option to repurchase the
property in the grantor, his heirs or assigns at a set price upon the
condition that the land is no longer used for estate granted. Not
only is there no set time that such an option will remain open but
-31-
also there is a set price that would fall substantially below the
present fair-market value of the land.
As to Conclusion (3), it would be suggested that the grantor's heirs
or assigns be notified as to any actions taken by the School Board,
but it would be the opinion of this Office that there is no obHgation
encumbent upon the Wilson County School Board to offer the land
in question to the grantor's heirs or assigns should the School Board
decide to no longer use said land for school purposes (for the above
stated reasons). The School Board may proceed to dispose of the
property if it so chooses by the normal pubhc auction procedures
of North Carolina General Statute 115-126.
Rufus L. Edmisten, Attorney General
T. Buie Costen
Special Deputy Attorney General
15 September 1978
Subject:
Requested by:
Question:
Conclusion:
Health, Chiropractors; Access to X-Rays In
Possession of Hospitals
The Honorable Ramey F. Kemp
Member of The House of Representatives
North Carolina General Assembly
Under current statutes may a chiropractor
review the diagnostic X-ray records of his
patient when such records are in the
possession of a hospital wliich receives aid
or support from the public?
Yes.
As amended by the 1977 General Assembly, G.S. 90-153 provided
as follows:
"A licensed chiropractor in this State may have access
to and practice chiropractic in any hospital or
-32- I
sanitarium in this State that received aid or support
from the pubhc, and shall have access to diagnostic
X-ray records and laboratory records relating to the
chiropractor's patient.'^ (Emphasis SuppHed)
This statute clearly authorizes a chiropractor to review the records
described in the question, which such entitlement including access
to the X-rays themselves. It would seem that the intent of the
General Assembly in enacting this legislation was threefold: (a) to
obviate unnecessary costs in the delivery of health care; (b) to
prevent unnecessary explosure of patients to radiation; and (c) to
enable chiropractors to engage fully in the practice of chiropractic.
Rufus L. Edmisten, Attorney General
Wilham F. O'Connell
Special Deputy Attorney General
Robert R. Reilly
Assistant Attorney General
18 September 1978
Subject:
Requested by:
Questions:
Administration of Estates; Probate of Wills
Honorable Carl G. Smith
Clerk of Superior Court
Iredell County
(1) May .a will be admitted to probate
where it includes a certificate executed in
the form prescribed by N.C.G.S. §31-11.6
(relating to self-proved wills), but where no
separate attestation was made?
(2) If the answer to question (1) is no,
may the witnesses who signed the
certificate later go before the court and
attest the will and thereby have the will
admitted to probate?
-33-
Conclusions: (1) No.
(2) No.
N.C.G.S. §31-11.6 (Supp. 1977) provides that:
An attested written will executed as provided by
G.S. 31-3.3 may at the time of its execution or at
any subsequent date be made self-proved by the
acknowledgement thereof by the testator and the
affidavits of the attesting witnesses, each made before
an officer authorized to administer oaths under the
laws of this state, and evidenced by the officer's
certificate, under official seal, attached or annexed to
the will in form and content substantially as follows....
The certificate is set out in the statute. It states, in part, that the
testator declared that he had signed the will and executed it in the
presence of the witnesses or acknowledged his signature to them.
The witnesses make a similar declaration. Space is provided for the
signatures of the testator, witnesses and acknowledging officer. The
statute then provides that "The sworn statement of any such
witnesses taken as herein provided shall be accepted by the court
as if it had been taken before such court."
The purpose of this provision is to allow for the ante-mortem proof
of a written attested will. It simply provides an alternative method
of probate to the others set out in N.C. G.S. 31-11.6 does not in
any respect displace of amend the requirements of N.C. G.S. 31-3.3
governing attestation of wills. See, e.g., In Re Estate of Kavcic, 341
So.2d 278 (Fla. App.1977). The whole thrust of the statute
contemplates a will that has already been attested by the testator
and witnesses. This is self-evident from the language of the certificate
which requires a declaration by the testator and witnesses that they
had signed the will.
It is interesting to note that Section 2-504 of the Uniform Probate
Code (U.L.A.) §2-504 (1977) read substantially Uke
N.C. G.S. 31-11.6. However, Section 2-504 was amended
(Supp. 1978) to read, in part.
-34-
(a) Any will may be simultaneously executed,
attested, and made self proved by acknowledgment
thereof by the testator and affidavits of the witnesses,
each made before an officer authorized to administer
oaths....
The comment to this amendment states that:
(T)he original text (of this section) authorized only
the addition to an already signed and witnessed will,
of an acknowledgment of the testator and affidavits
of the witnesses thereby requiring testator and
witnesses to sign twice even though the entire
execution ceremony occurred in the presence of a
notary or other official.
If the will was not properly attested, the witnesses who signed the
certificate may not later go before the court and attest the will
and thereby have the will admitted to probate. Attestation must
be made in accordance with N.C. G.S. 31-3.3 which requires that
the witnesses sign after the testator and in his presence. In re
Thomas, 111 N.C. 409,16 S.E.226 (1892).
This could obviously not be done if the testator had also failed
to sign the will in accordance with N.C. G.S. 31-3.3.
Rufus L. Edmisten, Attorney General
Lucien Capone, III
Associate Attorney General
22 September 1978
Subject: Social Services; North Carolina Grant under
the Child Abuse Prevention and Treatment
Act
Requested by: Carl H. Harper, Regional Attorney,
Region IV,
United States Department of Health,
Education and Welfare
-35-
Question: Is the definition of "sexual abuse" as set
forth in the recent amendments to the
Child Abuse Prevention and Treatment Act
(42 U.S.C. §5101 et seq., as amended by
P.L. 95-266) encompassed within the
definition of "abused child" as set forth
in The North Carolina Child Abuse
Reporting Law (G.S. 110-117) and the
definition of "neglected child" as set forth
in The North Carolina Juvenile Jurisdiction
and Procedure Law (G.S. 7A-278(4))?
Conclusion: Yes.
This opinion is in response to a question posed by the Office of
Regional Attorney, Region IV, United States Department of Health
Education and Welfare in connection with the North Carolina grant
under the Child Abuse Prevention and Treatment Act (42 U.S.C.
§ 5101, ef seq.). In April of 1977 the Act was amended to include
"sexual exploitation" within the definition of "child abuse and
neglect" (42 U.S.C. § 5102 as amended by Section 102(1) of Public
Law 95-266). In addition, the term "sexual abuse" was defined as
including:
"... The obscene or pornographic photographing,
filming, or depiction of children for commercial
purposes, or the rape, molestation, incest, prostitution,
or other such forms of sexual exploitation of children
under circumstances which indicate that the child's
health or welfare is harmed or threatened thereby, as
determined in accordance with regulations prescribed
by the Secretary (of HEW) ..."
42 U.S.C. § 5104 as amended by
Section 104(2) of Public Law
95-266
The precise question raised by the Regional Attorney's Office is
whether the definition of "abused child" as set forth in
G.S. 110-117 (1) c. and the definition of "neglected child" under
G.S. 7A-278(4) may be interpreted to include "sexual abuse or
exploitation" as currently defined by the Child Abuse Prevention
and Treatment Act.
. -36-
Although G.S. 110-117(1) c. defines an "abused child" as "a child
less than 1 8 years of age whose parent or other person responsible
for his care commits or allows to be committed any sex act upon
a child in violation of law," the preamble to this section states:
"As used in this Article, unless the contex otherwise
requires:^' (Emphasis supplied)
It is our opinion that if sexual abuse or exploitation of children
for commercial purposes does not fall squarely within the purview
of G.S. 1 10-1 17(1 )c., the preamble to said section would
nonetheless bring it within the State law definition of "abused
child."
Moreover, as we asserted in our prior opinion relative to the North
CaroUna appHcation for a grant under the Child Abuse Prevention
and Treatment Act (March 28, 1978), it has always been our position
that abuse is impUcitly encompassed within the definition of
"neglected child" under G.S. 7A-278(4). This would still hold true
now that we have concluded that sexual abuse or exploitation of
children for commercial purposes is included within the definition
of "abused child" under G.S. 110-117.
Rufus L. Edmisten, Attorney General
WilUam Woodward Webb
Assistant Attorney General
5 October 1978
Subject: Motor Vehicles; On-street Parking; Prima
Facie Rule of Evidence
Requested by:
Question:
Mr. Miles B. Fowler, City Attorney
Clinton, N. C.
May a city ordinance providing a penalty
of more than One Dollar ($1.00) for
overtime parking be enforced under the
prima facie rule of evidence as provided in
G.S. 20-162.1?
-37-
Conclusion: No, G.S. 20-162.1 provides for a One
Dollar ($1.00) penalty only.
If a penalty of more than One Dollar (1.00) is sought, the prima
facie rule of evidence provided in G.S. 20-162.1 would not be
applicable.
Rufus L. Edmisten, Attorney General
William W. Melvin
Deputy Attorney General
6 October 1978
Subject:
Requested by:
Question:
Conclusion:
Antitrust; Real Estate Brokers and Agents.
Blanton Little, Secretary-1 reasurer
N. C. Real Estate Licensing Board
May a local Board of Realtors, a private
trade association, require a Ucensed real
estate agent to become a member of the
Board in order to be eligible to apply for
membership in or association with a
multiple Hsting service corporation
estabhshed by the Board?
No, if the multiple listing service is found
to be an essential competitive tool in the
real estate market it serves.
Real estate brokering is a "trade" within the meaning of the federal
and state antitrust laws. United States v. National Association of
Real Estate Boards, 339 U.S. 485, 70 S.Ct. 711, 94 LEd. 1007
(1950); Love v. Pressley, 34 N.C. App. App. 503, 239 S.E.2d 574
(1977). The business practices of real estate agents individually and
jointly as members of a Board of Realtors are subject to antitrust
enforcement.
-38-
Unreasonable restraints of trade are prohibited by G.S. 75-1 and
75-2, and § 1 of the Sherman Act. Where members of a trade band
together for the purpose of advancing business interests the antitrust
laws condemn group activities which restrain trade. The law prohibits
businessmen from becoming associates in a common plan which has
the purpose and effect of reducing their competitors' opportunity
to buy or sell the things in which the groups compete. Associated
Press V. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 LEd. 2013
(1945).
In Associated Press, the court held that where a facility created
by a combination of competitors became essential to effective
competition in a particular market such that exclusion from
membership in that facility placed an enterprise at a competitive
disadvantage, exclusion was unlawful under the Sherman Act. This
is true even if competing facilities exist or even if competition has
not been completely prevented by the presence of the facihty. See
also American Federation of Tobacco Growers v. Neal, 183 F.2d
869 (4th Cir. 1950); Gamco, Inc. v. Providence Fruit and Produce
Bldg., 194 F.2d 484 (1st Cir.), cert, denied, 344 U.S. 817 (1952).
Denial of access to the Hstings of a multiple listing service reduces
the "opportunity to buy or sell the things in which the groups
compete" of non-members. Where a multiple listing service
estabUshed by a Board of Realtors has become so dominant an
economic force in a particular market that exclusion from
membership places a broker at a competitive disadvantage, exclusion
is unlawful under federal and state antitrust laws. It is not enough
that Board membership is open to any Hcensed real estate agent.
United States v. Terminal R.R. Association of St. Louis, 224 U.S.
383, 32 S.Ct. 507, 56 LEd. 810 (1912).
While your question has not been Htigated in North Carolina, other
jurisdictions have held that conditioning membership in a multiple
listing service on membership in the Board of Realtors is an
unreasonable restraint of trade. The court in Marin County Board
of Realtors v. Palsson, 130 Cal. Rptr. 1, 549 P.2d 833, 843 (1976),
said:
An association's freedom to exclude non-members
from its activities is not absolute. It must yield to
-39-
antitrust laws when (1) its activities begin to
correspond directly with and touch upon the business
activities of its members; and (2) the association has
the power to shape and influence the economic
environment of its particular market.
The court held that for non-members to compete effectively access
must be granted to all licensed real estate agents who choose to
use the service. Accord, Pomanowski v. Monmouth County Bd. of
Realtors, 152 N.J. Super. 100, 377 A.2d 791 (1977); Oates v.
Eastern Bergen County Multiple List. Serv., Inc., 133 N.J. Super.
371, 273 A.2d 795 (1971); but see, Barrows v. Grand Rapids Real
Estate Bd., 51 Mich. App. 75, 214 N.W.2d 532 (1974) (exclusion
of non-members of real estate board from multiple listing service
upheld where non-members were substantially able to complete and
majority of sales in the area were not made through the service).
Thus, where the multiple listing service is a vital competitive tool,
requiring membership in the Board of Realtors is a violation of
G.S. 75-1 and § 1 of the Sherman Act.
G.S. 75-2 prohibits any act in restraint of trade which violates the
common law. Predicating MLS participation on Board membership
where access to the multiple is an economic competitive necessity
violates common law principles. See Collins v. Main Line Board of
Realtors, 452 Pa. 342, 304 A.2d 493 (1973) (exclusion of
non-members from multiple listing service held per se common law
restraint of trade); Grillo v. Bd. of Realtors of Plainfield Area, 91
N.J. Super. 202, 219 A.2d 635 (1966) (denial of access to
non-members found to be unreasonable restraint of trade under
common law principles).
Rufus L. Edmisten, Attorney General
Tiare Smiley Farris
Associate Attorney General
20 October 1978
Subject: Health; Immunization; Exclusion of
Students from School under G.S. 130-90
-40-
Requested by: Dr. J. N. MacCormack, Head
Communicable Disease Control Branch
Division of Health Services
Questions: 1. Does G.S. 130-90, after amendment
of G.S. 130-87 by Chapter 191, 1971
Session Laws and by Chapter 160, 1977
Session Laws, require all children presently
attending school in North Carolina to be
immunized against red measles (rubeola)
and rubella?
2. Are school authorities now
prevented from excluding student from
school in accordance with G.S. 130-90 for
not obtaining the immunizations required
by G.S. 130-87 (at the time such students
were first enrolled in school in North
Carolina) when such students have been
allowed to continue in school after
expiration of the thirty (30) day grace
period during which evidence that the child
had received the required immunizations
should have been presented to school
authorities?
Conclusion: 1. All children presently attending
school in North Carolina are not required
to be immunized against red measles
(rubeola) and rubella as a requirement for
continuance in school. All children enrolled
in school for the first time in North
Carohna after April 13, 1971 are required
to be immunized against red measles
(rubeola) as well as the other previously
required immunizations and all children
enrolled in school for the first time in
North Carolina after July 1, 1977 must
also be immunized against rubella as a
requirement for continuance in school.
^1-
2. Under G.S. 130-90, school
authorities are able to exclude students
from school who have not received the
immunizations required by G.S. 130-87 (at
the time such students were first enrolled
in school in North Carolina) even though
such students were allowed to continue in
school after expiration of the thirty (30)
day grace period, set forth in G.S. 130-90.
As to the first question presented, the conclusion reached is based
on the same reasoning and in accordance with the Opinion of the
Attorney General to Dr. J. N. MacCormack concerning rubella
immunization dated November 29, 1977 and reported at 47 NCAG
130.
As to the second question presented, are school authorities prevented
by the doctrine of estoppel from enforcing G.S. 130-90?
Generally, laches and estoppel may not be relied upon to deprive
the public of protection of a statute because of mistaken action
or lack of action on the part of public officials. McComb v.
Homeowners' Handicraft Coop., 176 F. 2d 633, cert, denied, 70
S. Ct. 250, 358 U.S. 900, 94 LEd. 553 (N.C. App. \9A9y, accord,
S.S. Kresge Co. v. Davis, 277 N.C. 654, 178 S.E. 2d 382 (1971).
However, the doctrine of estoppel may be applied cautiously because ,;
of the pubhc interest involved. See, Goldhlath v. Chicago, 39 111.
App. 2d 211, 174 N.E. 2d 222 {\96\), accord, Lanier v. Williams,
361 F. Supp. 944 (D.C.N.C. 1973).
The purpose of G.S. 130-90 is to protect the pubhc health by
conditioning a child's continuance in school on his obtaining the
immunizations required by G.S. 130-87. It is stated in 39 Am Jur
2d, Health, Section 1, that:
"The preservation of the public health is one of the
duties devolving on the State as a sovereign power.
In fact, among all the objects sought to be secured
by governmental laws, none is more important, and
an imperative obUgation rests on the State, through
its proper instrumentalities or agencies, to take all
necessary steps to promote this object."
-42-
If suitable information is given to parents of unimmunized children
concerning the required immunizations and if an adequate time for
compliance is provided; it would seem that the exclusion of such
children from school would not result in manifest injustice as long
as any constitutional requirements of due process are met concerning
such explusion, especially in light of the pubhc interest involved.
For the above reasons, it is our opinion that G.S. 130-90 would
require a child to only receive the immunizations required by
G.S. 130-87 when he was first enrolled in school either as a result
of his attaining the age required by G.S. 115-162 or
G.S. 1 1 5-205. 1 2 or as the result of his parents or guardian becoming
residents of this State and that the duty of school authorities to
exclude children who do not receive such immunizations arises thirty
(30) days after their admittance to school and is enforceable at any
time thereafter.
20 October 1978
Subject:
Requested by:
Questions:
Rufus L. Edmisten, Attorney General
Jan Napowsa
Associate Attorney
Infants and Incompetents; Day-Care
Licensing; Construction of Criminal
Statutes
Senator Harold W. Hardison
North Carohna General Assembly
(1) Should children who receive care in
a child-care arrangement for less than four
hours per day be counted in determining
whether the arrangement must be Ucensed
as a day-care facility?
(2) Do children in the care of great-aunts
or other relatives come within the
exclusion to the definition of "day-care"
-43-
set out in G.S. 110-86(2) so that such
children would not be counted in
determining whether a child-care
arrangement was caring for more than five
children?
Conclusions: (1) Children who receive care in a
child-care arrangement for less than four
hours per day should not be counted in
determining whether the arrangement must
be licensed as a day-care facility.
(2) The exclusion from the definition of
"Day care" set out in G.S. 110-86(2) is
limited to children who are cared for by
their parents, grandparents, guardians or
I
full-time custodians; therefore, children in
' the care of great-aunts or other relatives
who are not their parents, grandparents,
guardians or full-time custodians must be
;
, counted in determining how many children
I
'
; are receiving day care.
I
I
G.S. 1 10-98 provides that it shall be unlawful to operate a day-care
j
facility without being Ucensed under the provisions of Article 7 of
I Chapter 110 of the General Statutes. G.S. 110-103 provides that
a violation of the provisions of G.S. 110-98 through 110-102 is
a general misdemeanor, which is punishable by imprisonment for
a term not exceeding two years or by a fine or by both, in the
discretion of the court. (G.S. 14-3). In requiring that day-care
facilities be Hcensed, the legislature stated its purpose in
G.S. 110-85:
The General Assembly hereby declares its intent with
respect to day care of children:
(1) The State should protect the growing
number of children who are placed in day-care
' facilities or in child-care arrangements when
these children are under the supervision and in
the care of persons other than their parents,
I -44-
grandparents, guardians or full-time custodians
during the day.
(2) This protection should assure that such
children are cared for by persons of good moral
character, that their physical safety and moral
environment are protected, and that the
day-care resources conform to minimum
standards relating to the health and safety of
the children receiving day care.
(3) This protection requires the following
elements for a comprehensive approach:
mandatory licensing of day-care facilities under
minimum standards; promotion of higher levels
of day care than required for a license through
the development of higher standards which
operators may comply with on a voluntary basis;
registration of day-care plans which are too
small to be regulated through hcensing; and a
program of education to help operators improve
their programs and to develop public
understanding of day-care needs and problems."
in
Article 7 of Chapter 110 makes a distinction between two types j*
of child-care arrangements providing day care: day-care plans and
xiay-care facilities. Only facilities are required to be licensed. A
day-care faciUty is defined as "any day-care center or child-care
arrangement which provides day care on a regular basis for more
than four hours per day for more than five children, wherever
operated and whether or not operated for profit...." A day-care plan
is defined as "any day-care program or child-care arrangement where
any person provides day care for more than one child and less than
six children, wherever operated and whether or not operated for
profit."
jit is common for both day-care plans and day-care facihties to
provide care for after-school children and other children who are
generally present for less than four hours per day. Because of the
I clearly stated legislative intent to protect children who receive care
away from their homes, it is tempting to include these after-school
-45-
children in the number of children used to determine whether or
not a child-care arrangement is a day-care facility which must be
licensed in order to operate or a day-care plan which must be
registered in order to operate. In 1975, at 44 N.C.A.G. 234, this
Office dealt with the question of the maximum number of children
for whom care could be provided in a day-care plan, and concluded
that the maximum number, including after-school children, was five.
However, since a violation of the day-care licensing requirements
is a criminal offense, and since criminal provisions must be strictly
construed, with all conflicts or ambiguities resolved in favor of the
defendant, the definition of a day-care facility must be interpreted
so as to exclude any after-school children or other children who
receive care for less than four hours per day when determining
whether more than five children are receiving care.
Thus, if a child-care arrangement provides care on a regular basis
for five children under 13 years of age for more than four hours
per day (excluding children, grandchildren, wards, or children in
full-time custody) and for any number of children for less than four
hours per day, that arrangement would be considered a day-care
plan which would not be required to obtain a license to operate.
Any previous interpretations which conflict with this Opinion are
hereby overruled to the extent of the conflict.
G.S. 110-86(2) defines "Day-care" to include "any child-care
arrangement under which a child less than 1 3 years of age receives
care away from his own home by persons other than his parents,
grandparents, guardians or full-time custodians."
The exclusion as to parents, grandparents, guardians and full-time
custodians is very specific and unambiguous. In light of the clearly
stated purpose of the day-care hcensing laws, there is no basis for
expanding the exclusion to include any other relatives who are not
guardians or full-time custodians.
Rufus L. Edmisten, Attorney General
^^ Ann Reed
Special Deputy Attorney General
-46-
20 October 1978
Subject:
Requested by:
Mental Health; Involuntary Commitment;
Transfer of a Respondent to a Private
Hospital
Honorable James E. Lanning
District Court Judge
26th Judicial District
Question:
Conclusion:
In a situation wherein a District Court
Judge has involuntarily committed a
respondent to a State Hospital under the
provisions of Article 5A, Chapter 122, is
it necessary to obtain an additional order
from the Court in order to permit later
transfer of the respondent to a private
hospital?
No, the respondent may be transferred by
order of the Department of Human
Resources pursuant to G.S. 122-80.
G.S. 122-58.8 provides that, upon determination that involuntary
commitment is warranted, the District Court may "...order
treatment, inpatient or outpatient, for a period not in excess of
90 days, at a mental health facihty, pubHc or private, designated
or licensed by the Department of Human Resources." Thus, in the
initial order, commitment to a private hospital (if the respondent,
his family, or representatives are amendable to bearing the cost of
hospitaUzation) may be made if the Judge, in his discretion, feels
such is appropriate.
After the original commitment, the provisions of G.S. 122-80, as
follows, would appear to apply:
"Patients transferred from State hospital to private
hospital-When it is deemed desirable that any patient
of any State hospital be transferred to any Hcensed
private hospital within the State, the Department of
Human Resources may so order. A certified copy of
-47-
j
the hospitalization order on file at the State hospital f
shall be sent to the private hospital which, together I
with the order of the Department of Human ^
Resources, shall be sufficient warrant for holding the i
mentally ill or mentally retarded person, or inebriate
by the officers of the private hospital. A certified copy
of the order of transfer shall be filed with the clerk i
of superior court of the county from which such
mentally ill or mentally retarded person, or inebriate
was hospitahzed. After such transfer the State hospital
from which such patient was transferred shall be
relieved of all future responsibility for the care and
treatment of such patient."
Literal reading of this statute compels the conclusion that it was
not the intent of the General Assembly to require that an additional
court order be obtained in order to effect the transfer described
in the question. To the contrary, the statute permits a determination
of the appropriateness of the transfer to be made by the Department
of Human Resources. Like other functions of that Department, the
authority to take this action may be delegated to a subordinate
agency of such Department. Of course, this action can only be taken
if the patient, his family, or representatives are wilUng to pay the
costs of the hospitahzation and if the private hospital involved is
capable and willing to accept the respondent.
Rufus L. Edmisten, Attorney General
,
,
William F. O'Connell
Special Deputy Attorney General
26 October 1978
Subject: Mental Health; Involuntary Commitments;
Petitioner in Involuntary Commitment
^^ Proceedings Involving a Prisoner.
Requested by: Ms. Judith L. Komegay,
Special Counsel
- Dorothea Dix Hospital
-48-
Question: In a case involving a prisoner in a state
correctional institution who becomes
mentally ill and dangerous to himself or
others, who is the person responsible for
acting as petitioner for involuntary
commitment of the prisoner to a treatment
facility under Article 5 A, Chapter 122?
I^onclusion: A staff psychiatrist of the correctional
institution must be the petitioner.
i^or ordinary situations, the initiation of involuntary commitment
proceedings to treatment facilities is dealt with by G.S. 122-58.3.
Subsection (a) of that statute provides that any person having
Adequate knowledge may execute the requisite affidavit and petition
lecessary for the institution of involuntary commitment
proceedings. Apparently some discussion has been encountered as
;o the applicability of this statute to a prisoner in a correctional
nstitution.
a.S. 122-85 addresses the subject of commitment of prisoners
iirectly and serves to resolve the issue with the following language:
"(a) A convict who becomes mentally ill and
imminently dangerous to himself or others after
commitment to any penal institution in the State shall
be processed in accordance with Article 5A of this
Chapter, as modified by this Section, except when the
provisions of Article 5A are manifestly inappropriate.
A staff psychiatrist of the prison shall execute the
affidavit required by G.S. 122-58.3, and send it to the
Clerk of Superior Court of the county in which the
penal facility is located." (Emphasis suppHed)
The specific language of the second sentence of G.S. 122-85
'a)-particularly when coupled with the emphasized words in the
first sentence-clearly identifies the intent of the General Assembly
relative to the involuntary commitment to treatment faciHties of
prisoners in correctional institutions. As a result of this language,
only a staff psychiatrist of such institution is authorized to execute
the requisite affidavit and accompanying petition.
•49-
The rationale behind this statute is readily apparent aftei
consideration of the nature and location of such type of respondent
This distinction as to the manner of initiation of these proceedings
presents no problems under the equal protection clause of the
Constitution; further, the statute fully grants a prisoner the due
process protection in all succeeding proceedings vital to deprivation
of any of his rights.
Rufus L. Edmisten, Attorney General
William F. O'Connell
Special Deputy Attorney General
'Sill
27 October 1978
Subject
:
Requested by:
Questions: ^
Register of Deeds; Mortgages and Deeds of|
Trust - Cancellation
Howard P. Neumann
Assistant County Attorney
Washington County
(1) The beneficiary of a deed of trust
marks both the note and deed of trust as
satisfied and paid in full. Upon presenting
these to the Register of Deeds, is the
beneficiary entitled to have the deed of
trust cancelled of record?
(2) A note and deed of trust are given
to secure an obligation. The payee on the
note and the beneficiary of the deed of
trust are the same party. The payee
endorses the note to a third party but no
physical assignment of the deed of trust is
made. The third party marks the note
satisfied and paid in full, and the
beneficiary marks the deed of trust
satisfied and paid in full. May the Register
of Deeds cancel the deed of Trust of
record?
-50-
iii Conclusions: (1) No.
(2) No.
la The discharge of record of mortgages, deeds of trust and other
101 jinstruments is governed by G.S. 45-37. That statute sets out several
methods of discharge. However, there must be strict compliance with
the statute, regardless of the particular method chosen. Mills v.
Kemp, 196 N.C. 309, 145 S.E. 557 (1928).
Cancellation under the facts presented is governed by G.S. 45-37(2).
The deed of trust, mortgage or other instrument along with the
bond, note or other instrument thereby secured must be exhibited
to the Register of Deeds, with the endorsement of payment and
satisfaction by
(a) The obhgee
(b) The mortgagee
(c) The trustee
(d) An assignee of the obhgee, mortgagee, or trustee or
(e) Any chartered banking institution, national or state, or
credit union, quahfied to do business in and having an
office in the State of North Carohna, where so endorsed
in the name of the institution by an officer thereof.
1 Cancellation is not authorized by anyone other than those parties
r listed in the statute. Faircloth v. Johnson, 189 N.C. 429, 127 S.E.
346 (1925). Thus the underlying question must be whether a
beneficiary of a deed of trust is one of the parties listed in the
statute - either expressly or by construction.
til; "In construing a statute it will be presumed that the legislature
fi comprehended the import of the words employed by it to express
i;: its intent. Accordingly, technical terms must ordinarily be given their
1 technical connotation." 12 Strong's N.C. Index 3rd, Statutes 5.11
[ (1978).
Ci:
t! At the outset, there is no indication in the question that the
li beneficiary of the deed of trust is a bank or an assignee of the
;;; obhgee, mortgagee or trustee.
-51-
The term "obligee" refers to a person in favor of whom some
obHgation is contracted, but when used in its technical sense includes]
only payees of notes, bonds, etc., and not to mortgage parties
BLACK'S LAW DICT. 1226 (Rev. 4th ed. 1968).
Technically the beneficiary in a deed of trust is also not a mortgagee
but a cestui que trust. Osborne, Mortgages, §17(2nd ed. 1970).;
There are three parties to a deed of trust - the grantor or trustor^t
the trustee and the cestui que trust (beneficiary). There are only
two parties to a mortgage, the mortgagor and the mortgagee.
The Courts clearly recognize a difference between the true mortgage
and a deed of trust as evidenced by the following statement.
Upon the execution of a mortgage or deed of trust
on real estate, legal title to the land vests in the
mortgagee or trustee, as the case may be. Simms v.
Hawkins, 1 N.C. App. 168, 160 S.E.2d 514 (1968).
(Emphasis added).
Unlike the trustee or mortgagee, the beneficiary does not hold legal
title. Webster, Real Estate Law In North Carolina, §228-230 (1970)'
Thus, the beneficiary in a deed of trust is not synonymous with
a mortgagee. \
Finally, although it is theoretically possible for the beneficiary and
trustee to be the same person, there is no indication of that here
and, indeed, it would be highly unUkely in the typical deed of trusii
case.
In the opinion of this Office there is no authority for cancellatior
of record of the deed of trust upon endorsement of satisfactior
by the beneficiary thereof See, also, Mills v. Kemp, supra.
Regarding the second question, although the payee (obhgee) is £
proper party to cancellation under G.S. 45-37(2), his endorsement
appears only on the note. It has already been estabhshed that thei
beneficiary's endorsement in the deed of trust is insufficient. Tht
question then becomes whether both the note and the deed of trust
must be marked satisfied by the proper party?
-52-
It would appear that the Legislature intended an answer in the
affirmative when one considers the following exception in the statute
providing.
The exhibition of the mortgage, deed of trust or other
instrument alone to the Register of deeds with
endorsement of payment, satisfaction, performance or
discharge, shall be sufficient if the mortgage, deed of
trust or other instrument itself sets forth the obligation
secured. ..and does not call for or recite any note, bond
or other instrument secured by it. G.S. 45-37(2).
flAlso see Webster, Real Estate Law In North Carolina, §225 at p.
y316 (1971).
Rufus L. Edmisten, Attorney General
Lucien Capone, III
Associate Attorney General
1 November 1978
Subject:
Requested by:
Question:
Conclusion:
Mental Health; Involuntary Commitment;
Criminal Law; Preliminary Evaluation of
Defendant Incapable of Proceeding With
Trial.
Dr. William Thomas
Chief of Adult Services
Division of Mental Health and Mental
Retardation Services
When a defendant is found incapable of
proceeding with a criminal trial and the
trial court takes the action directed by
G.S. 15A-1003 (a), is the examination by
a quahfied physician as described in
G.S. 122-58.4 required?
Yes.
-53-
In a situation involving a defendant in a criminal action who is found
to lack the mental capacity to proceed with trial, G.S. 1 5 A-1 003(a)
provides as follows:
"If a defendant is found to be incapable of proceeding,
the Court must enter an order directing the initiation
of proceedings for involuntary civil commitment, and
the Court's order is authority for a magistrate or clerk
to order a law-enforcement officer to take the
defendant into custody for examination by a qualified
physician under G.S. 122-5 8.3(b), or for processing as
an emergency case under G.S. 122-58.18."
In turn, G.S. 122-58. 3(b) requires the magistrate or clerk to "...issue
an order to a law-enforcement officer to take the respondent into
custody for examination by a qualified physician."
Apparently some disagreement has developed as to whether the
law-enforcement officer, when confronted with this type of
respondent, is required to take him to one of the facilities described
in G.S. 122-58.4. Reportedly, in some instances, arguments have
been advanced that the respondent is to be taken directly to a
regional hospital.
The language of the governing statutes makes it clear that it was I
the intent of the General Assembly to afford this type of respondent!
the same due process as that available to others. One step of thatj
due process is the preliminary evaluation by a local qualified
physician as required by G.S. 122-58.4. Only upon a determination,
by that physician that the defendant/respondent meets the standards I
for involuntary commitment is he to be disposed of in accordance!
with G.S. 122-58.4(c) and G.S. 122-58.6(a).
Of course, as permitted by G.S. 15 A-1 003(a), situations falling!
within the purview of G.S. 122-58.18 should be handled in
accordance with that statute. Further, all personnel responsible forj
the processing of defendants/respondents should be aware thatf
G.S. 15 A-1 004 quite logically makes specific provisions regarding
the monitoring, reporting, etc. of individuals of this type.
-54-
1 November 1978
Subject:
Requested by:
Question:
Conclusion:
Rufus L. Edmisten, Attorney General
William F. O'Connell
Special Deputy Attorney General
Taxation; Ad Valorem Taxes; Mobile
Homes; Tax Permits; Seller of Used Mobile
Homes as "Retailer"; G.S. 105-316.1
Leon M. Killian, III
Haywood County Attorney
(1) Is an individual engaged in the
business of buying and selling only used
mobile homes a "retailer?
(2) Is he required to obtain a tax permit
before moving a mobile home into his
inventory, or before moving a mobile home
to the premises of a purchaser?
(1) Yes
(2) No
An individual is engaged in the business of buying and seUing used
f((and only used) mobile homes. Presumably he buys them from
mobile home wholesalers or from individuals who first bought them
at retail; and presumably he sells them at retail and not to others
for resale. He is neither a hen holder nor a manufacturer.
G.S. 105-3 16. 1(a) requires that a "tax permit" be obtained before
a mobile home may be moved by anyone other than a manufacturer
or retailer. G.S. 105-3 16. 1(b) specifically provides that
"manufacturer, retailers and licensed carriers of mobile homes "shall
not be required to obtain such permits. The purpose of the permit
is to prevent the avoidance or evasion of tax on highly mobile
-55-
property, since to obtain the permit requires payment of the tax,
and failure to obtain it is a misdemeanor. G.S. 105-3 16. 2, .3, .6.
Heretofore, the businessman has been required by the tax collector
to pay taxes and obtain permits before moving the units which are
his stock in trade. It is not clear whether he has been required to
get the permits when he acquires a unit for resale and moves it
to liis lot, or when he sells to a consumer and moves it from his
lot, or both. However, we believe that under G.S. 105-31 6.4, neither
is correct if he is a "retailer".
"Retailer" is not defined in the Machinery Act, and has not been
judicially construed in the context of G.S. 105-316.1. However, it
is defined in the Sales and Use Tax Act as "every person engaged
in the business of making sales of tangible personal property at
retail". G.S. 105-164.3(14) "Retail" means "the sale of any tangible
personal property in any quantity or quantities for any use or
purpose on the part of the purchaser other than for resale."
G.S. 105-164.3(13). While there is no necessary transfer of meaning
between the two Acts, we think that the Sales Tax definition catches
the accepted sense of the word in that it is a sale to one for use
or consumption and not for resale as part of a retail business. Thus,
it is our opinion that the businessman in question is a "retailer"
of used mobile homes and is not required to obtain a permit or
pay delinquent taxes on a used mobile home when he moves iti
from the seller's premises to his lot, or from his lot to the purchaser's!
premises, under the provisions of G.S. 105-3 16. 1(a) and (b). It
appears to us that any other result would require amendment of
the pertinent statutes.
If the tax collector if aware of the sale by the owner to the retailer,
he might want to consider garnishment upon the retailer before the
purchase price is paid to the owner. G.S. 105-368. Unfortunately,
it is Ukely that he seldom if ever knows of the sale until after the
fact.
Rufus L. Edmisten, Attorney General
Myron C. Banks
Special Deputy Attorney General
-56-
8 November 1978
Subject:
Requested by:
Question:
Conclusion:
Taxation, Income Tax; Excise and Capital
Stock Tax on Savings and Loan
Associations; Federal Stock Savings and
Loan Associations; G.S. 54-1 (b);
G.S. 54A-1 et seq.; G.S. 105-130 et seq.;
G.S. 105-228.22
W. L. Cole, Administrator
Savings and Loan Division
North Carolina Department of Commerce
Are federally-chartered stock savings and
loan associations subject to tax Uke mutual
savings and loan associations, or hke
business corporations generally?
Federally-chartered savings and loan
associations are subject to tax like mutual
savings and loan associations
In a letter from W. L. Cole, Administrator, Savings and Loan
Division, North CaroUna Department of Commerce, the following
facts are given:
1. "Pursuant to Federal law. Federal mutual
associations may apply to the Federal Home Loan
Bank Board for permission to convert into Federal
stock associations; however, there is a current
moratorium on such conversions."
2. "At present. Federal mutual associations are
taxed Hke State mutual associations under Article 8D
of Chapter 105 of the General Statutes. Under Article
8D such associations pay a capital stock tax and an
excise tax. However, questions have arisen regarding
the taxation of Federal mutual associations which
convert to Federal stock associations."
Mr. Cole has asked "would such Federal stock associations be taxed
under Article 8D or would such associations be taxed in the same
-57-
manner as general business corporations organized under the
provisions of Chapter 55 of the General Statutes?"
Subchapter I of Chapter 54 of the General Statutes relates to savings
and loan associations generally, which are created pursuant to the
laws of this State. Chapter 54A relates specifically to stock-owned
as opposed to mutual, savings and loan associations created pursuant
to State law, and G.S. 54-1 (b) specifically requires such associations ;
created under Chapter 54A to "be taxed as a business corporation
organized under the provisions of Chapter 55", which is the
"Business Corporation Act". The income of such corporations is;
taxed under the Corporation Income Tax Act, G.S. 105-130 et seq.
Other savings and loan associations are taxed pursuant to Article
8D, Subchapter I of Chapter 105 of the General Statutes, and in
that connection, G.S. 105-228.22 provides:
"The provisions of this Article shall apply to every
building and loan association or savings and loan
association organized under the laws of this State or
organized under the laws of another state and which
maintains one or more places of business in this State
and to every savings and loan association organized
and existing under the 'Home Owners Act of 1933'
and which maintains one or more places of business
in this State, all such associations hereinafter to be
referred to as Building and Loan Association."
Article 8D then proceeds to levy a capital stock tax and an excise;
tax upon such associations.
Federal savings and loan associations are created pursuant to the]
provisions of the "Home Owners Loan Act of 1933", 12 USC § 1461
1
et seq. Since the Corporation Income Tax Act affects only those:
associations organized pursuant to Chapter 54A, and since federal
|
associations are not organized pursuant to that Act but pursuant I
to federal law, the corporation income tax does not apply to them.
However, since G.S. 105-228.22 specifically applies to "every
<
savings and loan association organized and existing under the 'Home
Owners Loan Act of 1933' and which maintains one or more places
of business in this State", we conclude that the taxes imposed by
-58-
Article 8D apply to all such associations created purusant to federal
[aw, both mutual and stock.
Rufus L. Edmisten, Attorney General
Myron C. Banks
Special Deputy Attorney General
10 November 1978
Subject: Motor Vehicles; Drivers' Licenses; Financial
Responsibility Act of 1953; Unsatisfied
Judgments Property Damage Judgment by
Owner or Bailee against Negligent Driver of
the Owner's or Bailee's Motor Vehicle
Requested by:
Question:
Ionelusion:
Mr. Joe Register, Director
Traffic Records
Division of Motor Vehicles
Are the mandatory provisions of
G.S. 20-279. 13(a) applicable to an
unsatisfied judgment obtained by an owner
or bailee against a negligent driver of the
owner's or bailee's motor vehicle for the
diminished value of such motor vehicle?
No.
ji owner or bailee of a motor vehicle obtained a default judgment
ttii gainst a negligent driver of the owner's or bailee's motor vehicle
!^! nd her master or employer for the diminished value of such motor
0^ ehicle resulting from a colhsion with a third party. A motor vehicle
;r- ability insurance policy was in effect. The judgment creditor has
3; emanded the Division of Motor Vehicles to suspend the motor
! jhicle operator's licenses of the judgment debtors under the
revisions of G.S. 20-279. 13(a).
r.S. 20-279.2 1(a) provides in pertinent part:
-59-
"(a) A 'motor vehicle liability policy' as said term is
used in this Article shall mean an owner's or an
operator's poUcy of liabiUty insurance, ..."
G.S. 20-279.21 (b) provides in pertinent part:
"(b) Such owner's policy of liability insurance:
(2) Shall insure the person named therein and any
other person, as insured, using any such motor vehicle
or motor vehicles with the express or impHed
permission of such named insured, or any other
persons in lawful possession, against loss from the
Uability imposed by law for damages arising out of
the ownership, maintenance or use of such motor
vehicle or motor vehicles...as follows:... five thousand
dollars ($5,000) because of injury to or destruction
of property of others in any one accident;" (Emphasis
added).
G.S. 20-279.2 1(e) provides in pertinent part:
"(e) Such motor vehicle habihty poHcy need not insure
against loss from...any hability for damage to property
owned by, rented to, in charge of or transported by
' the insured."
Under G.S. 20-279.2 1(c) an operator's policy of hability insuranc
is subject to the same limits of habihty. G.S. 20-279.21 (d) require,
all motor vehicle habihty pohcies to be subject to the provisiori
of Article 9A. G.S. 20-279.2 1(g) provides for excess and addition
coverage, but "the term 'motor vehicle habihty policy' shah appl:
only to that part of the coverage which is required by this section
From the foregoing statutory provisions, it is clear that a "mote
vehicle habihty pohcy" requires property damage coverage for th
benefit of third party beneficiaries and not colhsion or upsc
insurance coverage for the benefit of the insured. Although th
judgment in question appears to fall within the definition
-60-
judgment as defined in G.S. 20-279.1(3) and subject to the
provisions of G.S. 20-279.13, when these statutes are construed in
pari materia with the other provisions of Article 9A and Article
13, Chapter 20, of the General Statutes, it appears that such was
not the intent of the General Assembly. The legislative intent is
revealed not only by the provisions of G.S. 20-279.21 in defining
and setting forth the requirements of the motor vehicle habihty
pohcy but in other statutory provisions.
G.S. 20-279.1(11) provides in pertinent part:
"(11) 'Proof of financial responsibihty': Proof of
ability to respond in damages for habihty, on account
of accidents... arising out of the ownership,
maintenance or use of a motor vehicle, ...in the
amount of five thousand dollars ($5,000) because of
injury to or destruction of property of others in any
one accident. Nothing contained herein shall prevent
an insurer and an insured from entering into a
contract, not affecting third parties, providing for a
deductible as to property damage at a rate approved
by the Commissioner ofInsurance ^ (Emphasis added).
The requirements as to security and suspension under the provisions
of G.S. 20-279.5 do not apply to the operator or owner if an
owner's or operator's motor vehicle Uability poHcy was in effect
or wherein no injury or damage was caused to the person or property
of anyone other than such operator or owner. G.S. 20-279. 5(c)(1);
G.S. 20-279.6(1).
Although not involving a judgment for damages to the insured's
property, m Moore v. Young, 263 N.C. 483, 139 S.E. 2d 704 (1965),
the Court stated:
"The Motor Vehicle Financial Responsibihty Act
obliges a motorist either to post security or to carry
habihty insurance, not accident insurance to indemnify
all persons who might be insured's car." Accord:
McKinney v. Morrow, 18 N.C. App. 282, 196 S.E. 2d
585 (1973); See also Strickland v. Hughes, 273 N.C.
481, 160 S.E. 2d. 313 (1968).
-61-
In Commonwealth of Kentucky, Dept. of Public Safety v. Robinson,
435 S.W. 2d 447 (Ky., 1968), the defendant, Robinson, owned two
trucks used for hauling gravel. While being operated by his J
employees, the brakes on one truck failed causing it to run into'
the other truck, forcing it off the road and over a bluff kilHng the
operator thereof. A judgment was obtained against Robinson and
the other truck driver. The Department of Pubhc Safety wasj
permanently enjoined from canceling or suspending or refusing to
renew the motor vehicle operator's license or motor vehicle
registration of Robinson. A Kentucky financial responsibihty statute,
similar to G.S. 20-279.21(e), KRS 187.490(5) provided:
"(5) The motor vehicle hability policy shall not insure
any UabiHty under any workmen's compensation law
nor any hability on account of bodily injury to or
death of an employee of the insured while engaged
in the employment, other than domestic, of the
insured, or while engaged in the operation,
maintenance or repair of the motor vehicle nor any
UabiHty for damage to property owned by, rented to,
in charge of or transported by the insured."
In affirming the lower court decision, the Court of Appeals of
Kentucky stated:
"The General Assembly set forth the minimum
standards of the 'motor vehicle liability policy'
required. The parties agreed that appellee had
comphed in full with the requirements of The
Financial Responsibihty Law. KRS, Chapter 187.
Again, in its wisdom had it seen fit, the General
Assembly need not have provided the exclusion in
KRS 137.490(5), which in this case resulted in
appellee's being uninsured. The remedy for such lack
of coverage addresses itself to the General Assembly.
Inasmuch as appellee had comphed with the standards
required, it was unlawful and unreasonable to revoke
or suspend his hcense or registrations."
Since there was a motor vehicle habihty insurance policy in effect
meeting statutory requirements, the operator's hcense of the driver
-62- i
and her master or employer should not be suspended under the
provisions of G.S, 20-279. 13(a).
Rufus L. Edmisten, Attorney General
William B. Ray
Assistant Attorney General
14 November 1978
Subject:
Requested by:
Questions:
PubUc Records; North CaroUna Uniform
Traffic Ticket and Complaint; Right of
PubUc Inspection
Barbara Smith
Assistant Secretary
Department of Crime Control and PubHc
Safety
1. Is the Departmental Copy of the
North Carolina Uniform Traffic Ticket and
Complaint, which is submitted by a
Highway Patrolman to the District First
Sergeant who transmits it to the Traffic
Record Section of the Division of Motor
Vehicles, a pubhc record and subject to
inspection during the time it is maintained
at the Patrol District Headquarters?
2. Is the Enforcement Division Copy of
the North Carohna Uniform Traffic Ticket
and Complaint, which is maintained by the
officer issuing the complaint and includes
his notes and other evidence, a pubhc
record and subject to inspection prior to
trial of the offense charged in the
complaint?
3. Is the Enforcement Division Copy of
the North Carolina Uniform Traffic Ticket
-63-
and Complaint a public record and subject
to inspection in the Patrol District
Headquarters after the trial of the offense
charged in the complaint?
Conclusions: 1. No. <
2. No.
I
i
3. No.
The General Assembly has defined the term public records to mean
:
'"Public record' or 'pubUc records' shall mean all
documents, papers, letters, maps, books, photographs,
films, sound recordings, ... or other documentary
material, regardless of physical form or characteristics,
made or received pursuant to law or ordinance in
connection with the transaction of public business
by any agency of North Carolina Government or its
subdivisions." G.S. 132-1.
A custodian of a pubUc record is the "pubHc official in charge of
an office having pubhc reocrds". G.S. 132-2. "Every person having
custody of public records shall permit them to be inspected and
examined at reasonable times and under his supervision by any
person, and he shall furnish certified copies thereof on payment
of fees as prescribed by law." G.S. 132-6.
The North CaroHna Uniform Traffic Ticket and Complaint is
authorized pursuant to G.S. 7A-148(b) and G.S. 15A-302. There
is no statutory requirement for disposition of copies of the uniform
complaint except that a copy of the complaint must be delivered
to the person cited. G.S. 15A-302(d).
The initial question is whether the District First Sergeant is required
to allow inspection of the Departmental Copy of the North Carolina
Uniform Traffic Ticket and Complaint during the time that he has
the copy and before he transmits it to the Traffic Records Section
of the Division of Motor Vehicles. This copy of the complaint
contains the same information as the original and the copy filed
-64-
in the clerk's office. The First Sergeant is just a conduit for this
copy of the complaint. The General Assembly could not have
intended that each person who receives public record and passes
it on would be required to allow that public record to be inspected
during the time, however short, that the individual has possession
of the record. Only a person "having custody of public records"
is required to permit inspection. G.S. 132-6. A custodian is the
"public official in charge of an office having public records."
G.S. 132-2. It does not seem that the General Assembly intended
that the District First Sergeant be a custodian within the meaning
of the statute. He does not file or maintain a log of the records
temporarily in his possession other than the report he prepares.
In addition, a custodian must "furnish certified copies" of the public
records upon payments of fees prescribed by law. There is no
authority, that we can ascertain, for a Sergeant in the Highway Patrol
to certify copies of complaints. The clerk of court may certify copies
of complaints on file with him. G.S. 7A-103(6). The Commissioner
of Motor Vehicles is also authorized to certify copies of records
on file in his office. G.S. 20-42(b). In the situation described, the
District First Sergeant is not a custodian of pubHc records and
therefore is not required to permit them to be inspected and
examined and is not required to furnish certified copies of them.
This information or record can be obtained from the clerk of court
or the Commission of Motor Vehicles. The Highway Patrol does
not have the personnel necessary to allow such inspection in all
49 districts.
The second question presented is whether the Enforcement Division
Copy of the North CaroHna Uniform Traffic Ticket and Complaint
which is maintained by the arresting officer and contains his notes
and other evidence is a pubhc record and subject to inspection and
examination. It has been consistently held that there is no common
law right to discovery in a criminal case. State v. Goldburg, 261
NC 181, 134 SE 2d 334, cert. den. 377 US 978 (1964). Even though
a law enforcement officer makes his notes and gathers evidence
pursuant to the authority granted him by law, i.e. G.S. 20-188, if
such records and notes are not required to be disclosed to a criminal
defendant, we fail to see how the same notes are required to be
disclosed to the general pubhc. A criminal defendant can only obtain
those items which are allowed by the criminal discovery statutes.
-65-
See State v. Davis, 282 NC 107, 191 SE 2d 664 (1972); State v.
Blue, 20 NC App. 386, 389, 201 SE 2d 548 (1974) (notes of officer
not subject to discovery); State v. Jones, 23 NC App. 686, 688,
204 NC 508 (1974), cert. den. 286 NC 418 (reports of officers
or work product of police not subject to disclosure in this case).
Despite the broad language of the Public Records Act, supra, the
courts have held certain records as confidential. G.S. 148-74 and
148-76 require that records be maintained on prisoners. They are
not specifically declared to be confidential. However, the Supreme
Court held that a prisoner, who is an interested party, may not
see such files. Goble v. Bound, 13 NC App. 579, 581, aff.'d 281
NC 307, 188 SE 2d 347 (1972).
The notes, opinions, and preceptions of the law enforcement officer
may be contained on his copy of the Uniform Traffic Ticket and
Complaint. Based upon the above case law, the opinion of this Office
issued on June 3, 1975, to the Honorable J. Herbert Haynes, Sheriff
of McDowell County, 44 NCAG 340 (1975), is still vahd. This
opinion concluded that investigative reports and memoranda
concerning investigations of crimes are not pubhc records within
this sense of Chapter 132 and are therefore not subject to public
inspection. This opinion and the reasoning supporting it would apply
to the Enforcement Division Copy of the North CaroUna Uniform
Traffic Ticket and Complaint.
Florida has a similar statute to North Carolina. Chapter 119.01 of
the Florida statute provides that "(i)t is the pohcy of this state
that all state, county and municipal records shall at all times be
open for a personal inspection by any person." A public record
is defined to mean "...all documents, papers, letters, maps, books,
photographs, films, sound recordings or other material, regardless
of physical form or characteristics, made or received pursuant to
law or ordinance in connection with the transaction of official
business by any agency." Chapter 1 19.01 1(1), Florida Statutes. This
language is almost identical to the North Carolina statute. The
Florida Courts have construed this statute to exempt pohce records.
"First, it is clear that police reports are not pubhc
records within the meaning of Section 119.01, Florida
Statutes (1975) and thus need not be held open at ^
-66-
all times for personal inspection by any person. Police
records are ordinarily confidential." City of Tampa v.
Harold, 352 So. 2d 944, 946 (Fla. App., 1977).
The Florida Supreme Court held that poHce records could be
produced and used in evidence in a trial only in a rather restrictive
sense and outline that criteria governing production and use.
"It depends, as we have said, upon 1) being critical,
2) upon a material and vital point, 3) reasonably
exculpatory of defendant within sound judicial
discretion, and 4) after 'in camera' review and deletion
of improper matter." State v. Johnson, 284 So. 2d
198 (Fla. 1973)
Florida has recognized the need, as our previous opinion did, for
police records to be held confidential. The items in question here
are just as much poUce record as any other form. They must
therefore be deemed confidential and not subject to inspection
absent an order from a court of competent jurisdiction.
After the trial of the matter charged by the Uniform Traffic Ticket
and Complaint, the notes and evidence gathered by the officer would
still prevent this item from being a pubUc record. The officer would
be less likely to put down the necessary information to assure
proper prosecution of the criminal matter if he knew that such notes
and impressions would be subject to inspection and pubHcation.
Revealing such records would have a chilling effect upon a law
enforcement officer and no appreciable public benefit. The
impressions and notes which are introduced at the trial as evidence
become part of the record of the trial and may be inspected in
the courthouse. All other matters which were not introduced at the
trial should not be required to be disclosed. The same rationale for
not disclosing the notes of the law enforcement officer before trial
would seem also to apply after trial.
Rufus L. Edmisten, Attorney General
Isaac T. Avery, III
Assistant Attorney General
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14 November 1978
Subject:
Requested by:
Question:
Conclusion:
Public Officers; Conflict of Interest; Public
Officer Contracting with Corporation in
Which He is a Stockholder or Officer.
John F. Kime
Town Manager
Liberty N. C.
Does a conflict of interest, prohibited by
G.S. 14-234, exist if a member of the City
Council is a minority stockholder or an
officer of public or private corporation and
the City Council enters into a contract with
that corporation?
Yes. The general rule is that a public officer
who is either a stockholder or officer of
a corporation which enters into a
contractual relation with the officer or the
pubhc body of which he is a member,
violates a statute which prohibits such
public officer from having a direct or
indirect interest in any such contract, and
is also against pubhc policy as declared by
the common law.
Many cases are cited in 140 C.L.R. 344 to support the above general
rule. The North CaroUna Supreme Court has held that the
prohibition of G.S. 14-234 extends to an officer of a corporation
in making contracts between the corporation and the city or county
governing body of which he is a member. State v. Williams, 153
NC 595; Lexington Insulation Co. v. Davidson County, 243 NC 252.
"No man ought to be heard in any court of justice who seeks to
reap the benefits of a transaction which is founded on or arises
out of criminal misconduct and which is in direct contravention
of the pubhc policy of the State. Fashion Co. v. Grant, 165 NC
453, 81 S.E. 606; Marshall v. Dicks, 175 NC 38, 94 S.E. 514; Lamm
V. Crumpler, 233 NC 717, 65 S.E. 2d 336; Waggoner v. Publishing
Co., 190 NC 829, 130 S.E. 609.
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"Public Office is a public trust and this Court will not countenance
the subversion thereof for private gain. Not only will it declare void
and unenforceable any contract between a public official, or a board
of which he is a member, and himself, of a company in which he
is financially interested, whereby he stands to gain by the
transaction, but it will also deny recovery on a quantum meruit
basis. In entering into such contract, a public official acts at his
own peril and must suffer the loss incident upon his breach of his
public duty. He may look in vain to the courts to aid him in his
efforts to recoup his losses, due to the invalidity of the contract,
on the grounds the pubUc agency which he serves has been enriched
by his misconduct.
"In other words, this Court will not recognize or permit any recovery
bottomed on the criminal conduct of a public official. To put it
simply, the doors of the courts are closed to any individual, or firm
in which he is financially interested, who engages in a transaction
which comes within the language of the statute. Snipes v. Winston,
supra; Davidson v. Guilford, supra; King v. Guilford, 152 NC 438;
S. V. Williams, supra, Annos. 84 A.L.R. 969, 110 A.L.R. 164, 154
A.L.R. 375; 12 A.J. 498." Insulation Co. v. Davidson County, supra,
at. p. 255.
Although we find no North Carolina cases involving a pubHc official
who was a mere -stockhoider in the corporation, the courts in many
other jurisdictions apply the general rule stated above. Most of the
statutes involved contained language similar to G.S. 14-234, "be in
any manner interested", "make any contract for his own benefit",
"be in any manner concerned or interested in making such
contract..., "either privately or openly, singly or jointly with
another".
In Hardy v. Mayor of Gainsville, 48 SE 921, the statute contained
the language "or have any interest in such contract either by himself
or by another, directly or indirectly". The Council member held
stock in a corporation which entered into a contract with the city.
HELD : a stockholder in a private corporation clearly has an