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' THE LIBRARY OF THE UNIVERSITY OF NORTH CAROLINA THE COLLECTION OF NORTH CAROLINIANA C3U0 N87a 1970/72 v.Ul no.1-2 UNIVERSITY OF N.C. AT CHAPEL HILL 00033947141 FOR USE ONLY IN THE NORTH CAROLINA COLLECTION r,,---, Wn. A-lf.P; HI ] T] N< i^L NORTH CAROLINA ATTORNEY GENERAL REPORTS Volume 41 ROBERT MORGAN ATTORNEY GENERAL Digitized by tine Internet Archive in 2011 with funding from Ensuring Democracy through Digital Access (NC-LSTA) http://www.archive.org/details/northcarolinaatt19701971 41 N.C.A.G. - No. 1 , Pages 1 to 196 NORTH CAROLINA ATTORNEY GENERAL REPORTS Opinions of the Attorney General July 1, 1970 through December 31, 1970 MAILING ADDRESS: P. O. Box 629, Raleigh, N.C. 27602 ROBERT MORGAN Attorney General Harry W. McGalliard Chief Deputy Attorney General Jean A. Benoy James F. Bullock Ralph Moody Robert Bruce White, Jr. Deputy Attorneys General Carroll Leggett Special Assistant Attorney General Myron Banks William F. Briley T. Buie Costen Christine Y. Denson Sidney S. Eagles, Jr Eugene Hafer Guy A. Hamlin Claude W. Harris Charles M. Hensey I. B. Hudson Parks Icenhour H. H. Weaver Special Assistant I. Beverly Lake, Jr. Andrew H. McDaniel William W. Melvin William B. Ray Millard R. Rich, Jr. H. T. Rosser Jacob Safron Eugene A. Smith Andrew A. Vanore Robert Weathers Robert G. Webb Thomas B. Wood Assistant Attorneys General Jr. Tom Kane, Ocean Law Consultant James L. Blackburn Lester V. Chalmers H. A. Cole, Jr. Philip L. Covington Edward Eatman ,, . Ernie Evans P. Andrew Giles Ladson F. Hart D. M. Jacobs Rafford Jones Trial, Staff and Richard N. League !^ Charles A. Lloyd James E. Magner, Jr. Burley Mitchell, Jr. Ronald Price James B. Richmond Walter E. Ricks, III Howard P. Satisky Lewis Sauls Real Property Attorneys Russell G. Walker, Jr. Assistant Revisor of Statutes C3^0 / TABLE OF CONTENTS \/ , f \ T-O. ABC Act; Advertising Beer; Power of State 76 Board of Allcoholic Control to Regulate ABC Act; Beer and Wine; Permit Revocation 50 Hearings; Question of Suitability of Person or Place to Hold a Permit ABC Act; Beer and Wine; Sale of Sweet Wine 100 in City of Monroe; Chapter 541, Session Laws of 1963 ABC Act; Malt Beverages; Definition in 73 Labelling as "Malt Liquor" Administration of Estates; Ancillary 54 Administration; Money Held in Trust in North Carolina Banks for Deceased Benficiary; Release to Trustee Administration of Estates; Guardians; 14 Appointment of Child's Guardian When Parents are Living Administration of Estates; Intestacy; 184 Distribution of Intestate's Estate Among Brothers and Sisters and Their Legal Descedants Administration of Estates; Wills; Attestation; 177 Attestation Clause Not Required for Probate Airports; State Highway Commission; Ordinances; 25 Aircraft Landing Area, Regulation of Business & Commerce; Professional Corporation 60 Act; Applicability to Domestic and Foreign Corporations I Civil Defense; Power of Local Political Subdivisions in Civil Defense or Riot and Civil Disorder Emergencies Counties; Buildings; Removal of Social Services Personnel and Equipment to New Quarters; Inapplicability of G. S. 153-9(9) Requiring a Unanimous Vote of the Commissioners and a Specified Published Notice Counties; Salaries of Officers; Conflict in Local and General Acts 21 22A Courts; Clerk of Superior Court; Mental Examination; Authority to Order Physicians to Examine Allegedly Mentally 111 Person 35 Courts; Juveniles; Jurisdiction; Rape or Assault with Intent to Commit Rape Courts; Publications; Ownership of Publications Distributed Under G. S. 147-45 or Court Facility Fees to Officials and Agencies Courts; Solicitors; Judgments; Prayer for Judgment Continued; Right of Solicitor to Pray Judgment Courts; Solicitors; Setting Cases for Trial on Criminal Docket 23 176 97 37 Criminal Law & Procedure; Arrest and Bail; Arrest, Detention, Taking and Fixing Bail 110 Criminal Law & Procedure; Contributing to the Delinquency of a Child; Conviction of a Person Other Than a Parent, Guardian, or Other Person Having Custody or Control of the Child; G. S. 14-316.1 92 Criminal Law & Procedure; Narcotic Drugs; 93 Definition of Infants Under G. S. 90-1 11(c) Criminal Law & Procedure; Pre-sentence Diagnostic 67 Study; Appealability of Commitment for; G. S. 148-12(b) Criminal Law & Procedure; Probable Cause fiearing; 122 Degree of Proof Necessary at Probable Cause Hearing in Natcotics Case; May Law Officer Testify That Certain Substance Was Illegal Drug Criminal Law & Procedure; Search and Seizure; 88 Search Warrants; Surgery and X-ray of Defendant Education; Assignment of Pupils; Assignment on 5 the Basis of Geographic Zones; Residence of Pupils; Appointment of Guardian to Change a Pupil's Residence Education; Teachers; Extracurricular Activities 188 After Normal School Hours Education; Technical Institutes; Teachers; 87 Scholarship Loan Fund for Prospective Teachers; Eligibility of Teacher to Receive Credit on Loan for Teaching in a Technical Institute Under the Pro-visions of G. S. 116-174(5) Indians; Eastern Band of Cherokee Indians; 165 Federal Grant-in-Aid Funds; Authorizing Governmental Agency Infants & Incompetents; Sterilization of 107 Mentally Defective Person; Sterilization by X-ray Infants & Incompetents; Sterilization; 162 Sterilization of Unmarried Minors Under G. S. 90-272; Sterilization Under Article 7 of Chapter 35 ' ' Labor; Fair Labor Standards Act; Applicability 153 to Patients in State Mental Institutions Licenses & Licensing; Hearing Aid Dealers 51 and Fitters Board; Authority to Withhold License Under Grandfather Clause ' Marriage; Miscegenation; Issuance of Marriage . ' 132 License; County Where a License is Valid; " Status of Marriage Without Proper License Mental Health; Drug Addicts; Use of Methadone 103 in Treatment of Motor Vehicles; Drivers' Licenses; Financial ' 99 Responsibility Act of 1953; Unsatisfied Judgments ' ' " Motor Vehicles; Drivers' Licenses; Financial 109 Responsibility Act of 1953; Unsatisfied Judgments ' Motor Vehicles; Drivers' Licenses; Limited 16 Driving Privilege; Modification of Judgment Motor Vehicles; Drivers' Licenses; Record; 116 Entries on Individual's Driver's License Record; G. S. 20-26 Motor Vehicles; Drunken Driving; Riding a .-— 172 Horse on Street or Highway While Intoxicated Motor Vehicles; Liens; Wrecker Fees Not 38 Included in Mechanic's Lien Motor Vehicles; Operator's and Chauffeur's 119 License; Restoration Fee ' Motor Vehicles; Speed Limits; City Ordinances; 167 G. S. 20-141(0(1) and 20-141(b) Municipalities; Building Code; Electrical Code; 93 Authority of City of Kinston to Apply its Fee Schedule Against the County of Lenoir for Electrical Inspections of a County Hospital Located Outside but Within One Mile of the City Limits Municipalities; Contracts; Bidding 187 Municipalities; Ordinances; Repeal; Effect 114 of Court's Construction of Repealed Ordinance on Substituted Ordinance Municipalities; Streets and Highways; Truck 156 Routes Municipahties; Water and Sewage Systems; 12 Authority to Improve and Maintain Sewage Drains Extending Beyond Municipal Limits Municipalities; Water and Sewer Systems; 85 Water System Outside Corporate Limits; Restrictive Covenants on Land Public Officers & Employees; Double Office 194 j Holding; Register of Deeds; Clerk to I the Board of County Commissioners Public Officers & Employees; Double Office 192 Holding; Solicitor, Temporary; Appoint-ment Under G. S. 7A-64 Is Public Office Public Officers & Employees; Medical Examiners 117 and Coroners; Investigation of Deaths; Authority to Remove Dead Body Public Officers & Employees; Retirement; 1 Teachers' and State Employees' Retirement System; Creditable Ser\'ice; Sick Leave; Not Creditable to Meet Disability or Early Retirement Minimum Years of Service Public Officers & Employees; Retirement; 101 Teachers' & State Employees' Retirement System; Creditable Service; Sick Leave; Use for Purpose of Meeting 30 Years Service Qualification Public Officers & Employees; Salaries, County 40 Elections Board Executive Secretary; Authority of County Commissioners in Budget Appropriations Social Services; Adoption of Minors; Venue; 180 Waiver of Venue; Removal of Proceedings from One County to Another Social Services; Federal Social Security Act; 151 Title XIX (Medicaid); Lack of Authority for the State to Pay More Than 50 Percent of the Non-Federal Share of Non- Administrative Program Costs Social Services; Liens; Statutes of Limitations ;; 185 or Conditions Precedent; Tolling of Statutes of Limitations . ' ." Social Services; Medical Assistance; Elimination / 18 of a Category of Services; Elimination of a Category of Persons for Whom Payments Are . to be Made; Reduction in Rates of Payment Social Services; Medical Assistance; Payment 140 of All Non-Federal Costs by the State for Indians on Certain Reservations State Departments, Institutions & Agencies; : .'-' 190 Funds; Deposit of Funds in Banks in Name of State Treasurer; Necessity of Security; G. S. 147-77 Through G. S. - 147-81 State Departments, Institutions & Agencies; 120 Housing Corporation; Appropriation by 1969 General Assembly; Payment to Housing Corporation State Departments, Institutions & Agencies; 46 Medical Care Commission; Authority to Classify Hospital Emergency Services State Departments, Institutions & Agencies; 78 Ports Authority; Power of the Authority to Lease Authority Property to Private Investors State Departments, Institutions & Agencies; 48 Purchase and Contracts; Necessity of Public Bidding on Contract for Purchase of Computers Taxation; ABC Act; Tax on Spirituous Liquors; 144 "Net Profit" Limitation; G. S. 18-85(a); G. S. 18-85.2 Taxation; ABC Act; Tax on Spirituous Liquors; 141 "Net Profit" Limitation; Law Enforcement Expense; G. S. 18-45(15); G. S. 18-85(a) Taxation; Ad Valorem; Exemptions; Farm Produce; 56 Original Producer; G. S. 105-297(12) Taxation; Ad Valorem; Exemptions; Leased 41 Tangible Personal Property Owned by Bank; G. S. 105-228.13 Taxation; Ad Valorem; Exemptions; Personal 27 Property Stored in Pubhc Warehouses; G. S. 105-281 Taxation; Ad Valorem; Listing Property; 42 Person in Whose Name Personal Property Should Be Listed; Floor Plan Financing Arrangement; G. S. 105-304 Taxation; Ad Valorem; Personal Property Exempt; 157 Imported Products Stored in Warehouse; Import-Export Clause, Article I, Section 10, Clause 2, of the United States Constitution Taxation; Ambulance Liens; Garnishment and 134 Attachment; Collection from Without the County; G. S. 44-51.4; G. S. 105-385; G. S. 105-386 Taxation; Income Taxes; Exemptions; Government 146 Instrumentalities; Federal National Mortgage Association Taxation; Income Taxes; Gross Income; Deductions; 70 Alimony; Separate Maintenance; Periodiic Payments; G. S. 105-141.2; G. S. 105-147(21) Taxation; Income Taxes; Gross Income; 137 Exemptions; Annuities Taxation; Inheritance Tax; Safety Deposit Box, , 44 Access to; Duty of Clerk of Court Taxation; Intangibles Tax; Accounts Receivable; -. 175 Periodic Bilhngs by Construction Company; Evidence of Debt Taxation; Privilege License Tax; Branch or Chain 33 Stores; Montgomery Ward Sales Agency; G. S. 105-98 Taxation; Privilege License Tax; Court Reporters; 104 G. S. 160-56 Taxation; Privilege License Tax; Laundry and Dry 80 Cleaning Pick-Up Stations; G. S. 105-74 and G. S. 105-85 Taxation; Privilege License Tax; License Tax Upon 82 Employment Agency; G. S. 105-90 Taxation; Real Estate Excise Stamp Tax; Con- 75 veyances Resulting from Corporate Distribution or Liquidation; Lack of Consideration Taxation; Real Estate Excise Stamp Tax; 149 Exemptions; Foreclosure Deed to Farmers Home Administration; G. S. 105-228.31 Taxation; Real Estate Excise Stamp Tax; 168 Foreclosures; Government Instru-mentalities; Veterans Administration V. 41 7 July 1970 Subject: Public Officers & Employees; Retirement; Teachers' and State Employees' Retirement System; Creditable Service; Sick Leave; Not Creditable to Meet Disability or Early Retirement Minimum Years of Service. Requested by: Question: Mr. J. E. Miller, Director Teachers' and State Retirement System Employees' Conclusion: May sick leave standing to an employee's credit be counted in determining whether he has met the service requirements necessary to be eligible for disability or early retirement? Sick leave standing to an employee's credit may not be counted in determining whether he has met the service requirements necessary to be eligible for disability or early retirement. G. S. 135-4(e) reads as follows: "(e) Creditable service at retirement on which the retirement allowance of a member shall be based shall consist of the membership service rendered by him since he last became a member, and also if he has a prior service certificate which is in full force and effect, the amount of service certified on his prior service certificate; and if he has sick leave standing to his credit upon retirement on or after July 1, 1967. one month of credit for each 20 days or portion thereof, but sick leave shall not be counted in computing creditable service for the purposes of G. S. 135-3 (8) a." {Emphasis added) The sick leave provision was added by the 1967 General Assembly. Various provisions of the statutes fix certain minimum years of V. 41 : creditable service for disability or early retirement. In determining how to apply sick leave credit provided for in G. S. 135-4(e), the' key words are those underhned above which indicate clearly thatl sick leave credit is only allowed "upon retirement" and a person would not be eligible for sick leave credit until he has met through other creditable service the minimum requirements to enable him to retire. Once it is determined that he has met the qualifications for disability or early retirement, then there may be added to the length of his service in computing benefits, "sick leave standing to his credit upon retirement." Robert Morgan, Attorney General Harry W. McGalliard Deputy Attorney General 26 August 1970 Subject: Requested by: Questions: C( Civil Defense; Power of Local Political Subdivisions in Civil Defense or Riot and Civil Disorder Emergencies Mr. James W. Denning, Director Civil Defense Agency (1 ) When a state of emergency or a state of civil defense emergency is declared by the governing body of a county, would this be effective in the incorporated areas within the municipalities of the county or would it be necessary for the governing bodies of the county and the municipalities to make declarations in order that the entire county be covered? (2) If a state of emergency, rather than a state of civil defense emergency, as V. 41 3 described in G. S. 166-8(b) is declared by the Governor or the governing bodies of political subdivisions, to what extent generally are the state and political subdivisions empowered beyond their normally existing powers? Conclusions: (1) When a state of civil defense emergency is declared by the governing body of a county, this would be effective within incorporated municipalities within the county and it would not be necessary for the municipality to declare a state of emergency to exist except where it were necessary for municipal funds or personnel to be used in aid of the emergency situation. When a state of emergency is declared pursuant to the provisions of Article 36A of Chapter 14 of the General Statutes, the county declaration of an emergency does not apply within incorporated municipalites. (2) If a state of emergency is declared pursuant to the provisions of Article 36 A of Chapter 14 of the General Statutes, rather than declaration of a state of civil defense emergency, the powers of the municipalities are contained in G. S. 14-288.12 and the powers of the counties are as contained in G. S. 14-288.13. The Governor's powers are contained in G. S. 14-288.15. This opinion deals with the authority of local governing bodies and not their agents or other local agencies such as a local civil defense agency. As to declarations of a state of civil defense emergency pursuant V. 41 - 4 to the provisions of G. S. 166-8(b), there would appear to be no limitation on counties, when declaring a county-wide civil defense emergency, in acting within the corporate hmits of a municipahty within that county. However, in order to expend municipal funds, make contracts, employ or use personnel or other resources of the municipality, the municipality must join in a declaration of such an emergency to authorize use of municipal funds and materials as the county declaration of an emergency would have no effect on municipal resources as such. As to declarations of a state of emergency in case of riots and civil disorders pursuant to the provisions of Article 36A of Chapter 14 of the General Statutes, G. S. 14-288.13 provides that where the governing body of a county would enact an ordinance setting up provisions in event of declaration of such an emergency, the ordinance would not apply within the corporate limits of any municipality or within any area of the county over which the municipality has jurisdiction unless the municipality by resolution would consent to such an ordinance. Absent such consent, therefore, the county would have no authority within any municipality within its territorial hmits. In a state of emergency in event of riot or civil disorder rather than in a civil defense emergency, the ordinance of a municipality or of a county which might have been previously enacted or would then be enacted would extend the authority of those local government units to such areas as are allowed by G. S. 14-288.12 and G. S. 14-288.13. The Governor's powers are hsted in G. S. 14-288.15. Of course, all of the provisions of the riot and civil disorder article in Chapter 14 deal with extension of authority of law enforcement officers and other pubhc officials in event of such an emergency and, without being confronted with specific factual situations, we cannot suggest an exhaustive hst of the particular powers which might be involved. Robert Morgan, Attorney General (Mrs.) Christine Y. Denson, Staff Attorney V. 41 20 July 1970 Subject: Requested by: Questions: Education; Assignment of Pupils; Assignment on the Basis of Geographic Zones; Residence of Pupils; Appointment of Guardian to Change a Pupil's Residence Mr. A. C. Davis, Controller N. C. State Board of Education (1) What is the authority of a county or a city board of education in assigning pupils on the basis of georgraphic zones? (2) How may a pupil's residence in a zone be determined? (3) When parents are living, may persons other than the parents be appointed the legal guardian of the child for purposes of estabhshing residence in another geographic zone for purposes of pupil assignment? (1) The county and city boards of education clearly have authority to assign pupils based on geographic zones. (2) Residency within the pupil assignment statutes is used in the sense of being the child's "permanent home." (3) It would appear that a guardian may not be appointed in order to circumvent the pupil assignment plans where both parents are living and capable of caring for the child. The inquiry relates to pupils who reside within the Durham County School Administrative Unit (system) who are assigned under a geographic zone plan to a particular school within the system and who wish to attend a school within the system but without the Conclusions: V. 41 ' ( geographic zone of their residence. In this regard, the inquiry advises: "Some local attorneys are telHng their clients that pupils can move in with relatives or friends on the other side of town under certain conditions and thereby establish legal residence there. Several pupils have already done this." It is beyond question that county and city boards of education have authority to assign pupils under a geographic plan. North Carolina G. S. 115-163 states in pertinent part the following: "All pupils residing in a school district or attendance area, and who have not been removed from school for cause, shall be entitled to all the privileges and advantages of the public schools of such district or attendance area in such school buildings to which they are assigned by county and city boards of education." You will note from the above quotaton that the key words are: "All pupils residing in a school district or attendance area.'' Further along in this same statute we have a more detailed explanation as to the right of pupils to attend the public schools and the circumstances under which the boards of education may assign these pupils to particular attendance areas within the school administrative unit. I quote from the last few paragraphs of North Carolina G. S. 115-163 as follows: "Unless otherwise assigned by the county or city board of education, the following pupils are entitled to attend the schools in the district or attendance area in which they reside: (1) All pupils of the district or attendance area who have not completed the prescribed course for graduation in the high school. (2) All pupils whose parents have recently moved into the unit, V. 41 .7 district, or attendance area for the purpose of making their legal residence in the same. (3) Any pupil or pupils living with either father, mother or guardian who has made his or her permanent home within the district." ^n further support of the local board's authority to assign pupils residing within the administrative unit in any manner which the board thinks best. North Carolina G. S. 115-176 states: "Each county and city board of education is hereby authorized and directed to provide for the assignment to a public school of each child residing within the administrative unit who is qualified under the laws of this State for admission to a public school. Except as otherwise provided in this article, the authority of each board of education in the matter of assignment of children to the public schools shall be full and complete, and its decision as to the assignment of any child to any school shall be final." In the last quotation above you will find the key words are: "Each child residing within the administrative unit who is qualified under the laws of this State for admission to a public school." You will further note that in the quotation from the last part of North Carolina G. S. 115-163 the word "reside" is again used and that as to parents who have recently moved into the unit, district, or attendance area, these are required to have moved into such areas "for the purpose of making their legal residence in the same." You will note that for the first time the word "residence" enters into the problem and again in this same portion of North Carolina G. S. 115-163 we find that a pupil or pupils who are living with either father, mother or guardian "who has made his or her permanent home within the district." It is noted that the words "permanent home" are used as descriptive words of eligibihty. No doubt there are many shades of meaning that may be used in V. 41 ' 8 connection with the words "domicile", "residence", and "residing" but for the purposes expressed in the public school statutes these words all have practically the same meaning and this is strengthened by the further use of the words "permanent home" which are used in G. S. 1 15-163 with reference to the eligibihty of pupils to attend the schools. In Howard v Coach Co., 212 N. C. 201, 203, the Supreme Court of North Carohna discusses these terms as follows: "In Home v Home, 31 N. C. 99 (107), speaking to the subject, it is said: 'The term domicile, in its ordinary and familiar use, means the place where a person hves, or has his home; in a large sense, it is where he has his true, fixed, and permanent home, to which, when absent from it, he intends to return, and from which he has no present purpose to remove. Two things, then, must occur to constitute a domicile—first, residence, and second, the intention to make it a home—the fact and the intent.' S. v Carter, 194 N. C. 293; S. c, 195 N. C. 697. "In Watson v R.R., 152 N.C. 215 (217), it is written: 'Probably the clearest definition is that in Barney v Oelrices, 136 U. S. 529: "Residence is dwelhng in a place for some continuance of time, and is not synonymous with domicile but means a fixed and . permanent abode or dwelling, as distinguished from a mere temporary locality of existence; and to entitle one to the character of a 'resident', there must be a settled, fixed abode, and an intention to remain permanently, or at least for some time, for business or other purposes.' To same effect, Coleman v Territory, 5 Okla., 201: 'Resident indicates permanency of occupation as distinct from lodging or boarding or temporary occupation. 'Residence' indicates the place where a man has his fixed and permanent abode and to which, whenever he is absent, he has the intention of returning.' In Wright v Genessee, 117 Mich. 244, it is said: 'Residence means the place where one resides; an abode, a dwelling or 41 9 habitation. Residence is made up of fact and intention. Tliere must be the fact of abode and the intention of remaining.' And in Silvey v Lindsay, 42 Hun. (N.Y.), 120: 'A place of residence in the common-law acceptation of the term means a fixed and permanent abode, a dwelhng place for the time being, as contradistinguished from a mere temporary local residence.' In Re Ellis, 187 N. C. 840 (942)." some cases there may be a difference between "domicile" and residence" although the two words do not necessarily mean the me thing. The distincitions are pointed out in 77 C. J. S. lesidence) p. 289, and in 28 C. J. S. (Domicile) p. 5, sec. 2. ?e also: 17A Am. Jur., Domicile p. 194, sec. 1. As to the various ades of the meaning of the word "residence" as construed by le Supreme Court of North Carohna, see Owens v Chaplin, 228 C. 705; In Re Martin, 185 N. C. 472, 475; Reynolds v Cotton ills. Ml N. C. 412; Barker v Insurance Co., 241 N. C. 3977; aker v Varser, 240 N. C. 260, 267, 268. s to the fact that the word "residing" means the same thing as residence", see the case oi Oliver v Oliver, 219 N. C. 299, where divorce statute required that the plaintiff must have resided in le State for a period of a year and the instructions of the judge f the Superior Court which made this equivalent to "residence" hich are approved by the Supreme Court of North Carolina in lis case. .8 to the word "reside", we find that Webster's New International •ictionary (Second Edition) defines the word as follows: "To dwell permanently or continuously; to have a settled abode for a time; to have one's residence or domicile." 'hat the word "reside" has the meaning of a permanent abode and i in many cases equivalent to the word "residence", see Graham Commonwealth, 51 Pa. 255, 258, 88 Am. Dec. 581; Longwell Longwell, 88 S. W. 416, 417 (Texas); Cochran v Cochran, 162 E. 99 (Ga.); People v Owers, 69 P. 515, 518 (Colo.); Shattuck Maynard, 3 N. H. 123, 124; Phillips v City of Boston, 61 V. 41 ' 10 N. E. 250 (Mass.). inM It would appear, therefore, that the child must attend the scho "f' which serves his grade within the geographic zone in which he resid "" and to which he has been assigned by the local board of educatio iii ''• Moreover, the child should not be allowed to circumvent 1 ^ assignment by moving in with friends or relatives who reside in different geographic zone if the sole purpose of his moving is attend a different school within the administrative unit. There no decision of the Supreme Court of North Carolina or any othis jurisdiction on this particular issue. However, there are cas d elsewhere which use similar rationale. In the case of In I\i Schnipper's Guardianship, 288 N. Y. S. 382, the New Yo] i Supreme Court held that an infant's application for the appointmei of a resident guardian of her person for the sole purpose transferring her legal residence from another State to New Yoi State (New York City) so that she could obtain a gratuitioi education at the city's expense should be denied. New York Cit had a charter provision which made its common schools availabi to pupils whose parents or guardians were actually residents of tl city. The New York Court said: , •; "The appointment of a guardian of the person for the sole purpose of transferring the legal residence of the infant from another State to New York City, so that she may obtain gratuitous education at the expense of the city, would circumvent the spirit as well as the letter of the above cited section of the charter." itiiri leiT Tlie "guardian" as used in our attendance area statute (G. S. la 115-163) refers to a regular guardian as contemplated by Chapteiftati 33 of the General Statutes of North Carolina, as amended. There are two types of guardians under our law: (a) guardian c| the person, and (b) guardian of the estate. The jurisdiction appoint guardians in this State is vested in the clerk of the superid an court (G. S. 33-1) and the clerk may make a separate appointmen of guardian of the person and another as guardian of the estat (G. S. 33-6). Guardians are appointed for infants, idiots, lunatic? or inebriants, and, strictly speaking, guardianship relates to orphan (G. S. 33-1), and a child who has a father or mother, or botl 0' 41 11 ling who are competent and able to look after the child could ircely create a situation where a guardian could be appointed, c-rthermore, the appointment of a guardian is a matter almost impletely within the jurisdiction of the clerk of the superior court, d the clerk acting in a judicial capacity has the right to decide hjiether a guardian should be appointed or not. It was held earlier ; the Supreme Court of North Carolina that the appointment of uiardian was a discretionary matter. Donald v Vick, 15 N. C. 294. preover, the father, under our statutes, is the natural guardian of »; minor child, which makes him guardian of the person, and upon isie father's death the mother becomes the natural guardian of her i|nor child to the same extent that the father would be if living. Re Hoopen's Custody, 282 N. C. 223; N. C. G. S. 33-3. As the circumstances which affect the appointment or n-appointment of a guardian, see generally 39 C. J. S., oJiardian and Ward, sections 6 and 7, pp. 17 and 18. 31 ilierefore, it is hard to envision why or how a clerk in one county b n appoint a guardian for a child whose parents are living and ;l|siding in the same county unless some extradordinary •cumstances such as abandonment of the child or things of that ture in fact occur. It boils down to the fact that there appears be no authority of law for the appointment of a guardian for e mere purpose of having a child attend a selected public school. the child has a guardian properly appointed for real guardianship irposes, then the residence of the guardian can be a factor to ;termine the proper legal attendance of the child in our public hools. conclusion, where county and city boards of education have tablished geographic attendance areas within the administrative lit, pupils residing within the geographic attendance area may not nove in with friends or relatives on the other side of town" who 'e within a different geographic attendance area for the sole irpose of attending a school within the administrative unit other .an the one to which the pupil has been previously assigned by i.e county or city board of education. Robert Morgan, Attorney General Andrew A. Vanore, Jr., Assistant Attorney General V. 41 31 August 1970 Subject: Requested by: Question: 12 Municipalities; Water and Sewage Systen Authority to Improve and Maintain Sewa Drains Extending Beyond Municipal Lim Honorable R. Odell Payne Representative from Guilford County North Carolina General Assembly [ATI Conclusion: When a creek, lying partially within ai partially without municipal Umits, utilized by the municipality as a sewa drain, is authority vested in t] municipahty or in the county to acqui rights-of-way or easements necessary dredge and maintain for sewage purpos that portion of the creek lying outside tl municipal limits? The municipality and the county each ha' authority to acquire rights-of-way ar easements necessary for the improvemei and maintenance for sewage pruposes < those portions of the creek lying outsic municipal limits; and the county and tl municipahty may jointly participate : such improvement and maintenanc including acquisition of necessai rights-of-way and easements. The facts as set forth indicate that the City of Greensboro discharge treated waste from its waste treatment plant into Buffalo Creel The creek flows outside the municipal limits across Guilford Count! and eventually into the Haw River. The City of Greensboro ha ' undertaken a program of dredging the creek within the municip; limits, and it is desirable to continue such dredging beyond th municipal limits in order to improve the flow within the creek. I order to accomplish such dredging, it will be necessary to securff' rights-of-way or easements from abutting owners of private property ^ts, 41 13 ere are numerous statutes which set forth the powers and thority of counties and municipalities with regard to sewage and linage systems. The statutes considered to be applicable and ntrolling in the present instance are hereinafter set forth. ATUTES RELATING TO MUNICIPALITIES: S. 160-204 specifically authorizes a municipality to purchase "any id, right of way, water right, privilege, or easement, within or ^side the city" as may be necessary "for the purpose of opening, abhshing, building, widening, extending, enlarging, maintaining, operating any. ..sewerage or drainage systems" owned or operated the city or in its behalf. G. S. 160-205 authorizes the micipality to acquire such property rights for such purposes by idemnation. OS S. 160-239 authorizes a municipality to establish and maintain ewage system and "if it shall be necessary in obtaining proper tlets to such system to extend the same beyond the corporate dts," to "condemn a right-of-way or rights-of-way to and for such tlets. ..." S. 160-255 authorizes a municipahty to own and maintain a sewer tem and empowers it "to acquire and hold rights-of-way, water its, and other property within and without the city limits." S. 153-9(46) authorizes a county to "acquire, construct, onstruct, extend, improve, operate, maintain, lease and dispose ..sanitary sewer systems." S. 153-284 authorizes the board of county commissioners of any mty to "(1) Acquire, lease..., construct, reconstruct, improve, end, enlarge, equip, repair, maintain and operate any. ..sanitary /erage system or parts thereof, either within or without the undaries of the county and to acquire in the name of the county gift, purchase or eminent domain. ..improved or unimproved lands rights in land, and to acquire such personal property or water hts as it may deem necessary . . . ." S. 153-285 authorizes the board of county commissioners "to mde... sewerage services to any and all persons including... V. 41 14 municipalities. ..either within or without the boundaries of t county . . . ." -. . G. S. 153-287 authorizes "Any county or municipality and any othpsti county or counties or municipality or municipalities. ..jointly acquire, lease..., construct, reconstruct, improve, extend, enlarg equip, repair, maintain and operate. ..any sanitary sewer system parts thereof, either within or without the boundaries of any su counties or municipalities, and to acquire by gift, purchase or t exercise of eminent domain. ..any improved or unimproved lands rights in land, and to acquire such personal property or water rig as may be deemed necessary. ..." In the appropriate circumstance, the board of county commissionc is authorized by Articles 2 and 12 of Chapter 156, North Caroli; General Statutes, to provide for the cleaning out and draining i any non-navigable stream, creek, swamp or branch to protect t] public health. leir lie; There is very substantial authority, therefore, for either the Cifaiits of Greensboro or Guilford County, separately, or both jointly, kl improve, dredge, and maintain Buffalo Creek for sewage purposja and to secure property or rights in property necessary for sU' purposes. Robert Morgan, Attorney General Henry T, Rosser, Assistant Attorney General Parks E. Icenhour, Assistant Attorney General ily 31 August 1970 Subject: Requested by: Administration of Estates; Guardian Appointment of Child's Guardian Wh| Parents are Living Honorable Ben G. Floyd, Jr. 41 15 Clerk of Superior Court Robeson County tfestion: Does the clerk of superior court have authority, when both parents are living together and providing the support and maintenance for a child, to appoint another person as guardian for that child upon appHcation of the parents? ^Inclusion: The clerk of superior court does not have authority, when both parents are living together and providing the support and maintenance for a child, to appoint another person as guardian for that child upon application of the parents. e inquiry indicates that there has been a rise in the number of plications for appointment of a guardian over the person of ants. This appHcation is made by the parents of the child who living together and providing the entire support for the child, appears that such apphcations may be made for pupil assignment schools under the guardians' rather than the parents' address. apter 33 of the General Statutes dealing with appointment of al irdians lists the situations in which guardians may be appointed. is occurs where there is no natural guardian (G. S. 33-1.1), where : parents appoint a guardian by their will when they are the last viving parent (G. S. 33-2), the appointment of mother as irdian upon the death of the father (G. S. 33-3), the appointment a guardian upon divorce of the parents (G. S. 33-4), and the Dointment of a guardian when the father is living (G. S. 33-5). ly the latter statute would appear to have any appHcation to t situation posited in your letter. That statute provides: "§ 33-5. Appointment when father Uving. - The clerk of the superior court may appoint a guardian of the estate of any minor, although the father of such minor be living. And the guardian so appointed shall be governed in all respects by the laws relative to guardians of the estate in other cases, but shall have V. 41 16 no authority over the person of such minor." It would appear that G. S. 33-5 does not give the clerk authorit to appoint a guardian in the instance mentioned in your letter. '. would seem that the purpose of the section is to provide someom to control the estate of the minor when his father might otherwia be incompetent to do so but the statute specifically excludd guardianship of the person of the minor. G. S. 33-6 provides fc" separate administration of guardianships of the person and the estali of a minor. Since the appointment of guardians is now governed by statutoi authority, there would seem to be no other jurisdiction in the coui to appoint a guardian. While it is well established that the cour of our State are the guardians of minors and their estates, the] would appear to be in the instances posited in your letter no thre." of immediate harm to the person or property of the infant ati^ the court's jurisdiction would not adhere. Enclosed for your further information is a copy of tH July 20, 1970, opinion to Mr. A. C. Davis, Controller, State Boai of Education, which deals with some of the education law question for which this opinion on the authority of the clerk is a supplement ., . . Robert Morgan, Attorney General (Mrs.) Christine Y. Denson, . Staff Attorney 31 August 1970 Subject: Requested by: Question: Motor Vehicles; Drivers' Licenses; Limite Driving Privilege; Modification of Judgmei Judge John T. Brock Davie County Criminal Court Defendant is convicted of a first offeni of driving under the influence < /. 41 17 inclusion: intoxicating liquor and given a suspended sentence. After the term of court has expired, may the judge reopen the case and grant the defendant a limited driving privilege? After the term of court during which defendant was convicted and judgment entered upon that conviction, the court has no authority to reopen the case and grant defendant a limited driving privilege. NCAG Opinion of 18 September 1969, to Commissioner Joe W. Garrett, Department of Motor Vehicles. n the above opinion, it is stated: "I am of the opinion that inferior courts have no authority to vacate or modify correct and valid judgments after the term during which they are rendered has expired. This opinion I feel is substantiated by decisions of the Supreme Court of North Carolina, beginning with State V. Warren, 92 N. C. 829 (1885), and including State v. McLeod, 222 N. C. 142 (1942), and State v. Lawrence, 264 N. C. 220 (1965). In the case of Recorder's Courts, this rule of law has been codified as G. S. 7-221 which reads as follows: 'When any case has been finally disposed of by the recorder and judgment pronounced therein, the case shall not thereafter be reopened or the judgment or sentence rendered therein changed, modified or stricken out by the recorder after the adjournment of the weekly term of court or after the adjournment of V. 41 IJ any special term of court by the recorder.'" The opinion further states: ". . . ex post facto actions purporting to vacate or modify correct and valid( judgments would appear to infringe upor« the exclusive prerogative of the Governor to exercise the power of pardon or discharge. In State v. Lewis 246 N. C. 249 (1946), the Court said: "After a defendant has begun the service of his term ... it is beyond the jurisdiction of the judge to alteij it or interfere with it in any way The power of pardon, parole or discharge during the term of imprisonment is by the Constitution the exclusive prerogative of the Governor.'" Robert Morgan, Attorney General T. Buie Costen, Assistant Attorney General 1 September 1970 Subject: Social Services; Medical Assistance; EHmination of a Category of Services; EHmination of a: Category of Persons for Whom Payments Are to be Made; Reduction in Rates of Payment. Requested by: Mr. Chfton M. Craig, Commissioner State Department of Social Services Questions: (1) May the State Board of Social Services \i 41 19 lawfully eliminate from the Medical Assistance program any category of services which are described in section 8(b) of the special provisions of the 1969 Appropriations Act as follows: "hospital care (in-patient and out-patient), x-ray, laboratory, physicians services (practitioners of medicine or surgery, podiatry, and osteopathy), home health services, nursing home care, drugs, dental care and dentures, optometric services and eye glasses"? (2) May the State Board of Social Services lawfully eliminate, as a category of persons for whom payments are to be made, the "medically indigent" described in section 8(a) (2) of the special provisions of the 1969 Appropriations Act as "individuals who are over 65 years of age, or are permanently and totally disabled, or are blind, or are members of families with dependent children, and whose incomes are insufficient to provide necessary medical care, as determined by the Board of Social Services"? (3) In the absence of any federal requirement to the contrary, may the State Board of Social Services lawfully make a reduction of rates of payment to providers of the items and services listed in section 8(b) of the special provisions of the 1969 Appropriations Act as follows: "hospital care (in-patient and out-patient), x-ray, laboratory, physicians services (practitioners of medicine or surgery, podiatry, and osteopathy), home health services, nursing home care, drugs, dental care and dentures, optometric services and eye glasses"? (1 ) The State Board of Social Services may not lawfully eliminate from the Medical Assistance program any category of services which are described in sectionn 8(b) of the special provisions of the 1969 Appropriations Act as V. 41 ' 20 follows: "hospital care (in-patient and out-patient), x-ray, laboratory, physicians services (practitioners of medicine or surgery, podiatry, and osteopathy), home health services, nursing home care, drugs, dental care and dentures, ' optometric services and eye glasses". llie (2) The State Board of Social Services may not lawfully eliminate, as a category of persons for whom payments are to be made, the "medically indigent" described in section 8(a) (2) of the • special provisions of the 1969 Appropriations Act as "individuals who are over 65 years of age, or are permanently and totally disabled, or are blind, or are members of families with dependent children, and whose incomes are insufficient to, provide necessary medical care, as determined by the Board of Social Services". (3) In the absence of any Federal requirement to the contrary, and subject to the approval of the Advisory Budget Commission, the State Board of Social Services may lawfully make aj reduction of rates of payment to providers of the ;. items and services listed in section 8(b) of the special provisions of the 1 969 Appropriations Act as follows: "hospital care (in-patient andj ' out-patient), x-ray, laboratory, physicians services' (practitioners of medicine or surgery, podiatry, and osteopathy), home health services, nursin home care, drugs, dental care and dentures,j optometric services and eye glasses". Alluding to conclusions (1) and (2), it appears that the Appropriations Act expresses the intent of the Legislature that none of the categories of eligible persons nor any category of items or services described in section 8(a) and (b) of the special provisions of the Act may be eliminated. In the Act, the list of services is preceded by the words "The services provided will be limited to" and the hst of eligible categories of persons is preceded by the words "Persons eligible for services will be Hmited to". It is thought that V. 41 21 these are affirmative statements of what categories of persons and services will be included, and not merely a statement of the limits not to be exceeded by the State Board of Social Services. This view is supported by the introductory statement in section 8 of the special provisions that "Funds appropriated... for the purpose of implementing Title XIX (Medicaid) effective January 1, 1970, are intended to provide for the following.'' (Emphasis added) Conclusion No. (3) is based upon the pertinent portions of the special provisions of the 1969 Appropriations Act as follows: "Sec. 7. Appropriations made herein to the various State agencies for the purpose of purchasing medical, dental, optometric and hospital services, including all services provided under Title XIX of the Social Security Act, and for care in homes for the aged, will be disbursed on the basis of rates and fee schedules approved by the Advisory Budget Commission. {Emphasis added) "Sec. 8. . . .(g)The Department of Social Services will develop the State Plan for Title XIX to meet State and Federal requirements and establish policies to assure adequate program control subject to the approval of the Advisory Budget Commission.'' {Emphasis added) Robert Morgan, Attorney General R. S. Weathers, Assistant Attorney General 2 September 1970 Subject: Counties; Buildings; Removal of Social Services Personnel and Equipment to New Quarters; Inapphcability of G. S. 153-9(9) Requiring a Unanimous Vote of the Commissioners and a Specified Published Notice. V. 41 Requested by: Question: Conclusion: 22 Mr. Edgar P. Israel, Director Haywood County Department of Social Services In order to move the Haywood County Social Services Department from quarters in the County Education Building, are the Haywood County Commissioners under legal obligation to comply with the provisions of G. S. 153-9(9) requiring a unanimous vote of the Commissioners and requiring a specified published notice for the removal, or the designation of a new site for, any county building? In order to move the Haywood County Social Services Department from quarters in the County Education Building, the Haywood County Commissioners are not under legal obligation to comply with the provisions of G. S. 153-9(9) requiring a unanimous vote of the Commissioners and requiring a specified published notice for the removal, or the designation of a new site for, any county building. It is recognized that moving the brick and mortar or other materials making up a building, or designating a new site for a building required by statute to be known by a specified name, such as a | courthouse, would fall within the purview of the statutory provision under consideration. However, it is not perceived that the moving of personnel, equipment, and materials from quarters in a building also occupied by the County Department of Education constitutes the moving a building or the designation of a new site for a county building within the meaning of the statute under consideration. Hence the conclusion stated above. Robert Morgan, Attorney General R. S. Weathers, :. ^ Assistant Attorney General V. 41 2 September 1970 Subject: Requested by: og Question: id ty ty to Conclusion: 22A Counties; Salaries of Officers; Conflict in Local and General Acts Mr. James R. Sugg Craven County Attorney May the Craven County Board of Commissioners increase the Sheriff's salary during an election year under the provisions of Chapter 842, Session Laws of 1959, or must the Board of Commissioners follow the procedures set forth in G. S. 153-48.1 as enacted by Chapter 358, Session Laws of 1969? Chapter 842, Session Laws of 1959, was not repealed by Chapter 358, Session Laws of 1969, and the County Commissioners should proceed under the authority of the 1959 special act to fix the salary of the Sheriff of Craven County. li 'The Board of County Commissioners of Craven County desire to rincrease the sheriff's salary at this time, but some question has arisen ] as to the Board's authority to proceed under Chapter 842, Session Laws of 1959, due to the provision contained in G. S. 153-48.1 relating to the procedure to De followed for increasing the salary of an elective officer in an election year. J Section 3 of Chapter 358, Session Laws of 1969, provides that all 1 special, local and private acts fixing the number, salaries, fees, n allowances and other compensation of county officers shall continue e in full force and effect until superseded by action taken in accordance with the provisions of this Act. It is noted that Chapter 842, Session Laws of 1959, does not fix the salary of the Sheriff of Craven County, but authorizes the County Commissioners to increase any salaries and allowances paid to any officer of Craven County. V. 41 23 Thus, Chapter 842, Session Laws of 1959, was not repealed by the 1969 Act and since it does not fix the salaries of officers, it would appear that there is no procedure whereby the special act can be superseded by any action taken under the provisions of the 1969 Act. Robert Morgan, Attorney General James F. Bullock, Deputy Attorney General 2 September 1970 Subject: Requested by: Questions: Courts; Juveniles; Jurisdiction; Rape or Assault with Intent to Commit Rape Mr. Charles B. Winberry Chief District Prosecutor Seventh Judicial District (1) If a 13 year old male has committed an offense which would be a capital crime if committed by an adult, may he be bound over to the superior court for trial aften a finding of probable cause by a district|l court judge under G. S. 7A-280, and may any person under the age of 14 years be placed on trial in superior court for an alleged crime? (2) If a 13 year old male has committed an offense which would be a capital crime if committed by an adult, is it proper for his case to be heard as a juvenile hearing in district court? (3) May a 13 year old male be convicted of rape or assault with intent to commit rape in North Carolina? V. 41 24 Conclusions: (1) If a 13 year old male has committed an offense which would be a capital crime if committed by an adult, he may not be bound over to the superior court for trial after a finding of probable cause by a district court judge under G. S. 7A-280. No person under the age of 14 years may be placed on trial in superior court for an alleged crime. (2) If a 13 year old male has committed an offense which would be a capital crime if committed by an adult, it is proper for his case to be heard as a juvenile hearing in district court. (3) There is an irrebuttable presumption that a 13 year old is incapable of rape or assault with intent to commit rape. G. S. 7A-280 sets out the conditions under which a child under 16 years of age may be tried in Superior Court and it appears from oei;he first sentence of G. S. 7A-280 that the entire statute pertains i only to juveniles who are at least 14 years of age. :ei ct The provisions of G. S. 7A-277 and G. S. 7A-278 give the district 3) court exclusive original jurisdiction over children under the age of ^i 16 years. ,ii Alluding to conclusion (3), a case in point is State v Sam 60 N. C. 293 (1864). In that case, the jury found that the defendant li made an assault on the body of Camilla Ann Brock with an intent, Hi forcibly and against her will, carnally to know her. The court gave 01 judgment for the prisoner and the state appealed. The court said i! that "The question brought up in this case for review is whether a person of color, under 14 years of age, can be convicted of an assault with intent to commit a rape." The court held that the '} presumption against the commission or rape "by persons below the 'age of puberty (14) is irrebuttable." "This not so much on the ground of incapacity of mind or wih but of physical impotency. V. 41 25 It will follow as a plain legal deduction from this that the person under 14 cannot commit an assault with intent to commit rape. It is a logical solecism to say that a person can intend to do what he is physically impotent to do. . . .The presumption which arises from want of age appHes equally to the offense of rape and the offense of assault with the intent to commit it. Both presumptions are alike irrebuttable." The Court in State v Sam, supra, called attention to the fact that the General Assembly could change these common law presumptions. The Legislature has chosen not to act since this decision of long standing. We are aware of the case oi State v Smith, 213, N. C. 299 (1938), in which the Court in dicta (the defendant Smith was 15 years old) stated that the lack of capacity for criminal intent of a 7 to 14 year old was rebuttable. However, this statement (213 N. C. at p. 303) was dicta and dealt with capacity for intent rather than physical capacity. It appears that State v Sam, supra, has not been overruled. Robert Morgan, Attorney General R. S. Weathers, Assistant Attorney General 3 September 1970 Subject: Requested by: Question: Airports; State Highway Commission; Ordinances; Aircraft Landing Area, Regulation of Mr. John Davis, Chief Engineer, State Highway Commission Does the State Highway Commission Ordinance regulating airport construction and alteration require safe clearances between a State highway and an aircraft N. 41 26 landing area in accordance with State Highway Commission standards, when the landing area existed prior to December 2, 1966, the effective date of the ordinance? Conclusion: No. The safe clearance standards adopted by the ordinance are not applicable to aircraft landing areas constructed prior to December 2, 1966, unless the landing area is subsequently altered. The facts are indicated by a letter of August 24, 1970, from ^the State Highway Chief Engineer and other correcpondence attached to the letter are that an airstrip was constructed parallel to SR il #1356 in Vance County in 1952 and it was extended in 1964. The I Chief Engineer inquired of this office as to whether or not under t the highway ordinance "we are empowered to act to provide safe J clearances between highways and airports or landing strips that r, existed prior to December 2, 1966". The pertinent provisions of the State Highway Commission Ordinance promulgated on December 2, 1966, pursuant to G. S. 136-18(22) are as follows: "1. (a) All construction or alteration (emphasis added) of airports or aircraft landing area, . . . shall be in conformity with standards established by the State Highway Commission, ... "(b) No such construction or alteration {emphasis added) shall be undertaken without having obtained a written permit from the State Highway Commission . . . and all such construction or alteration must be in accordance with said written permit. "(c) The person . . . seeking a permit for construction or alteration (emphasis added) of an airport or aircraft landing area shall . . . submit to the State Highway V. 41 ' 27 Commission the plans and designs of the proposed construction or alteration, . . . "3. . . . nor shall the provisions of this ordinance be construed to prohibit necessary repairs from being made to or on any airport facilities now in existence, regardless of their location." The provisions of the ordinance are clear that it applies only in cases of construction or alteration and it specifically provides that it does not prohibit repairs to existing facilities regardless of location The standards for safe clearances established by the ordinance have no apphcation to an aircraft landing area constructed prior to December 2, 1966, unless it is subsequently altered. Robert Morgan, Attorney General Eugene A. Smith, Assistant Attorney General 4 September 1970 Subject: Requested by: Question: Conclusion: Taxation; Ad Valorem; Exemptions Personal Property Stored in Public Warehouses; G. S. 105-281 Mr. D. R. Holbrook Administrative Office State Board of Assessment What property of a nonresident, shipped into this State and placed in a pubHc warehouse, is not subject to assessment for ad valorem taxation in this State? Personal property of a nonresident is not subject to assessment for ad, V. 41 28 valorem taxation in this State when it is: (a) in its original package (or fungible goods in bulk); (b) shipped into this State by the nonresident; (c) placed in a portion of a public warehouse, which portion is not owned or leased by the consignor or consignee of such property (or by a subsidiary of either); and (d) for transshipment; but only if (1) the original bill of lading specifies that the property is for transshipment, and (2) the property is only temporarily at rest pending completion of its delivery in interstate commerce. Chapter 1185 of the 1967 Session Laws contained the following amendment to G. S. 105-281: "Personal property of nonresidents of the State in their original package or fungible goods in bulk, belonging to a nonresident of the State, shipped into this State and placed in a public warehouse for the purpose of transshipment to an out-of-state or within the State destination and so designated on the original bill of lading, or personal property of residents of the State in their original package and fungible goods in V. 41 29 bulk, belonging to a resident of the State, placed in a public warehouse for the purpose of transshipment to an out-of-state destination and so designated on the original bill of lading, shall be, while so in the original package, or as fungible goods in bulk, in such warehouse, and they are hereby designated a special class of personal property and shall not be assessed for taxation. No portion of a premises owned or leased by a consignor or consignee, or a subsidiary of a consignor or consignee, shall be deemed to be a public warehouse within the meaning of this section despite any licensing as such. It is hereby declared to be the policy of this State to use its system of property taxation in such manner, through the classification of the aforementioned property, to encourage the development of the State of North Carolina as a distribution center. For purposes of this section and this subchapter, the term 'property, real and personal', as used in the first paragraph of this section, shall not include the property hereinabove in this : paragraph so specially classified." Analysis of that provision indicates that certain conditions must be met before property of a nonresident, shipped into North Carolina and stored in a public warehouse, may escape assessment for ad valorem taxation in North Carolina. Such property must be: (a) in its original package (or fungible goods in bulk, such goods being "goods, any unit of which is, from its nature or by mercantile custom, treated as the equivalent to any other unit." Edwards v. Cleveland Mill and Power Co. 193 N. C. 780, 138 S. E. 131 (1927). (b) shipped into this State by the nonresident; V. 41 30 (c) placed in a portion of a public warehouse, which portion is not owned or leased by the consignor or consignee (or by a subsidiary of either); (d) for transshipment to an out-of-state or within the State destination; and the original bill of lading must state that such goods are for transshipment to an out-of-state or within the State destination. Some question has arisen as to whether the bill of lading must state the name and address of the consignee. On its face the statute does not require that this be stated, and we are inclined to believe that this is not required. And since, if a nonresident has shipped the goods to North Carohna for transshipment, they can only be transshipped out-of-state or within the State, it would be meaningless to require a formal recital of that language on the bill of lading. It would be sufficient if the bill of lading merely recited "for transshipment" or some similar indication of the status of the goods. It is interesting to note that a Kentucky statute, KRS 132.095, virtually identical to ours, is similarly interpreted administratively. In a letter dated 4 November 1969, the Director, Property and Inheritance Tax Division, Kentucky Department of Revenue wrote: "At first glance it would appear that the original bill of lading must designate the ultimate recipient of the goods in storage. However, it has been argued by the sponsors of this legislation that this interpretation would not be consistent with similar statutes in other states and would render the act useless. Their intent (so I am told) was to label goods for 'transshipment' in order to indicate that it was temporarily at rest and therefore subject to the special rate. The Department of Revenue has tentatively agreed to this interpretation and is administering the statute in that manner." However, to become engrossed in the language that must appear on the original bill of lading is to miss the principal point of the law. Every indication points to a conclusion that the 1967 Act had reference to goods which were in public warehouses in this State, temporarily at rest, while completing their delivery in the course of interstate commerce. Several considerations lead to that conclusion. V. 41 31 1. The goods must be stored for "transshipment". This term has a precise meaning: "The act of taking the cargo out of one ship and loading it in another". (Black's Law Dictionary, 4th Ed.) "Transshipment" and "forwarding" are interchangeable. (Smith, Kirkpatrick & Co. v. Colombian S. S. Co. (C. C. A. Canal Zone) 88 F. 2d 392. The act of transferring "for further transportation from one ship or conveyance to another". (Webster's Third New International Dictionary.) Thus the goods, held at a warehouse, are merely awaiting further transportation to their destination. They are only temporarily at rest. 2. The original bill of lading must show that the goods are destained for further shipment (transshipment). The original bill of lading would be, we think, that bill of lading which brings the goods into this State, not a subsequent bill of lading, prepared after the goods have been stored here. This implies that an ultimate destination must be known when the goods are shipped into this State, whether or not shown on the bill of lading. 3. The title of the Act indicates that it appHes specifically to goods moving in interstate commerce: "An Act To Classify Personal Property in Interstate Commerce Stored in Public Warehouses in North Carohna For Ad Valorem Tax Purposes." (c. 1185, S. L. 1967.) That title must be considered if the meaning of the act is in doubt. The Supreme Court stated in Sykes v. Clayton, 274 N. C. 398, 163 S. E. 2d 775 (1968): "The title is part of the bill when introduced, being placed there by its author, and probably attracts more attention than any other part of the proposed law, and if it passes into law, the title thereof is consequently a legislative declaration of the tenor and object of the act . . . Consequently, when the meaning of an act is at all doubtful, all the authorities now "' concur that the title should be considered." V. 41 32 The Act's title indicates clearly that the property which is the subject of the act is property which is still in the channels of interstate commerce. Thus, the notation of "for transshipment" on a bill of lading is not as important a consideration as the fact of the goods being en route to a destination, in interstate commerce, while they are temporarily at rest in the public warehouse. "When there is a break in the flow of interstate transportation, the interruption may subject the goods to the jurisdiction of the state in which it occurs. A stoppage to facilitate the journey, such as holding goods on a dock awaiting the arrival of a steamer, is considered a part of the journey itself. Likewise, if the interruption is due to natural causes over which the owner has no control, the flow of transportation is deemed uninterrupted. Nor is the continuity of transportation broken, when the interruption is necessary to promote the safe or convenient transit of the goods." (P-H State & Local Tax Serv., All States Unit, 1193668.) But that is not to say that such goods remain in interstate commerce when the consignor stores his goods in a public warehouse pending receipt of order which he fills from that stock. "When the foreign corporation stores its goods in the state and sells those goods through its agents in the state, the sale of the goods is a transaction of the corporation's own business and, by its nature, is not within the protection of the commerce clause of the federal constitution." (P-H State & Local Tax Serv., All States Unit, 117528.) Again referring to the similar Kentucky statute, we note that administratively, the same result has been achieved there: "We do require that the goods remain undisturbed between the dates of storage and transshipment. We do not permit 'selling' and delivery from the goods subject to this statute although there are those who have attempted to do so." (Ky. Department of Revenue letter dated 4 November 1969 to D. R. Holbrook.) We have not overlooked the language in G. S. 105-281 to the effect V. 41 33 that the pohcy of the State is to encourage the development -of the State as a distribution center. Nonetheless, we beheve that the more expHcit provisions of the act lead to the conclusion that encouragement at present extends to classification of property which is "in interstate commerce", not to such property whose interstate journey has come to an end. If another result had been intended, it could have been achieved by specifying, as Wisconsin has done, that goods in storage in their original package in commercial warehouses shall be considered "in transit". Wise. Stats. §70.111(10). Or perhaps the word "distribtuion" in Heu of "transshipment" would have removed the interstate commerce aspects of the statute. However, we are faced with a construction of the statute as enacted by the Legislature, not as it might have been written. Robert Morgan, Attorney General Myron C. Banks, Assistant Attorney General 3 September 1970 Subject: Requested by: Question: Taxation; Privilege License Tax; Branch or Chain Stores; Montgomery Ward Sales Agency; G. S. 105-98 Mr. Fred R. Harwell, Tax Collector City of Washington Whether a store operating within a city under the name of Montgomery Ward Sales Agency, which store advertises under the name of Montgomery Ward, uses the regular Montgomery Ward mail order catalogue for making sales, accepts installment and charge account payments for Montgomery Ward Company through which company purchases are financed, and which sells only Montgomery Ward V. 41 34 merchandise, qualifies as a "chain store" within the meaning of G. S. 105-98 so as to permit the levy by the city of a License tax for the operation of such store within the city under the authority granted in G. S. 105-98? Conclusion: A store operating within a city under the name of Montgomery Ward Sales Agency, which store advertises under the name of Montgomery Ward, uses the regular Montgomery Ward mail order catalogue for making sales, accepts installment and charge account payments for Montgomery Ward Company through which company purchases are financed, and which sells only Montgomery Ward merchandise, qualifies as a "chain store" within the meaning of G. S. 105-98 so as to permit the levy by the city of a license tax for the operation of such store within the city under the authority granted in G. S. 105-98. . G. S. 105-98 provides that while counties may not levy a Hcense tax on the business taxed under this section, "cities and towns may levy a Hcense tax not in excess of fifty dollars ($50.00) for each chain store located in such city or town." The term "chain store" as used in this section is defined to include stores operated under separate charters of incorporation if there is common ownership of a majority of stock in such companies, or a similarity of name of such companies, or if such companies have the benefit of group purchase of merchandise or of common management. This section further defines the term "chain store" to apply to any group of stores where a majority interest is owned by an individual or partnership. Furthermore, the subject of taxation under this section, "a branch or chain store operator", is defined as "every person, firm or corporation engaged in the business of operating or maintaining in this State, under the same general management, supervision, or V. 41 35 ownership, two or more stores . . . where goods or merchandise are sold or offered for sale, . . . who or which controls . . . the manner in which any such store or stores are operated, or the kinds, character, or brands of merchandise which are sold therein," These definitions would appear broad enough to include a store operating under the name "Montgomery Ward Sales Agency" which advertises under the name of "Montgomery Ward", uses the regular Montgomery Ward mail order catalogue for making sales, employs Montgomery Ward installment sale financing and sells only ' Montgomery Ward merchandise, and a city or town may levy, under the authority granted in G. S. 105-98 and within the amount limitation specified, a license tax on the operation of any such store within its corporate limits. Robert Morgan, Attorney General I. Beverly Lake, Jr. Assistant Attorney General 15 July 1970 Subject: Requested by: Questions: Courts; Clerk of Superior Court; Mental Examination; Authority to Order Physicians to Examine Allegedly Mentally 111 Person Honorable J. C. Taylor Clerk of Superior Court of Halifax County (1) Does G. S. 122-62 require the clerk of court to specify by name the two physicians required to examine the alleged mentally ill person? (2) Does G. S. 122-62 empower the clerk of court to order physicians in the county to perform the examination? /. 41 36 Conclusion: Article 7 or Chapter 122, G. S. 122-60 through G. S. 122-65.9, requires the clerk of court to act in a judicial capacity. G. S, 122-62 requires the clerk of court to name the two physicians who are to perform the examination of the alleged mentally ill person in the order for examination. This section clothes the clerk with the authority to order the physicians to perform the examination, and, if necessary, to enforce this order by citing for contempt. n a telephone conversation on June 29, 1970 the Honorable J. Z. Taylor, Clerk of Superior Court of HaUfax County, posed the wo questions as stated above. ^.rticle 7 of Chapter 122 is titled "Judicial Hospitalization." This irticle is comprised of § § 122-60 through 122-65.9. The article ets out in detail the procedure to be followed in order to hospitalize I mentally ill person against his will. G. S. 122-63 requires the :lerk of court to hold a hearing on the question of the need for lospitalization, receive evidence, and make findings of fact and :onclusions of law based there on. The entire article clearly Tianifests the intention that the clerk of court shall act in a judicial capacity in proceedings brought pursuant to this article. See Bailey '. McGill, 247 N. C. 286, at p. 291. J. S. 122-62, in pertinent part, provides as follows: "when an iffidavit and request for examination of an alleged mentally ill person. . .has been made. . .(the clerk) shall direct two qualified physicians. . . to examine the alleged mentally ill person." fhe verb "direct" is defined by Black's Law Dictionay, Fourth edition, as meaning "to order; to command." It is obvious that he legislature intended the word to have at least this force and effect for it would be a vain thing for the statute to require the :lerk to perform a judicial function but not clothe him with the luthority to issue orders necessary to its accomplishment. J. S. 122-62 gives the clerk this needed authority. It imposes a V. 41 37 duty upon physicians to serve as witnesses in such proceedings Bailey v. McGill, supra, at p. 292. If a physician refuses to perform this duty the clerk of court can enforce his order by the use oj his contempt powers. As a practical matter the clerk of court should arrange in advance for the services of two physicians willing to perform this duty and thus avoid the necessity of a direct order requiring the service. However, in the event that such arrangements cannot be made, the clerk clearly has the authority to order physicians to make the examination. Robert Morgan, Attorney General • ' '^ ; ' L. Phillip Covington, Staff Attorney : 14 September 1970 Subject: : Requested by: Question: Conclusion: Courts, Solicitors; Setting Cases for Trial on Criminal Docket Mr. Archie Taylor, Solicitor 4th Solicitorial District Does the presiding judge or the solicitoD have the duty and authority to place on the criminal calendar the cases to be called for trial? The solicitor has the authority and discretion to decide which cases shall be placed on the trial calendar. The Solicitor is a constitutional officer. Article IV, Section 16, North Carolina Constitution, and responsible for the prosecution of all criminal actions within the courts of his district (G. S. 7A-61), The solicitor, by virtue of G. S. 7A-49.3, must file with the clerk of superior court, one week before the session, a calendar of the V^. 41 38 :ases he intends to call for trial at that session. It is clear from :he language of G. S. 7A-49.3 that what cases shall be placed upon thr trial calendar is within the authority of the solicitor. \s stated in State v. Furmage, 250 N. C. at 622, a soHcitor, as 1 public officer and as an officer of the court, is vested with mportant discretionary powers. It is his duty to present all available evidence and to prosecute persons charged with crimes. If prior to Drosecution he finds the evidence insufficient to support conviction, le may enter a nolle prosequi or nolle prosequi with leave. Vlanifestly, a solicitor must determine which cases should be :alendared for trial since he could not prosecute unless the evidence vas available, the witnesses, defendant and attorneys were available, md other factors as may be necessary to go forward with the trial. Robert Morgan, Attorney General James R. Bullock, Deputy Attorney General 14 September 1970 )ubject: Motor Vehicles; Liens; Wrecker Included in Mechanic's Lien. Fees Not ilequested by: Mr. R. B. Parker, Assistant Director License and Theft Division Department of Motor Vehicles Question: G. S. 44A-2 gives a preferred possessory hen on personal property to "any person who alters, repairs, services, treats or improves personal property in the ordinary couse of his business pursuant to an express or implied contract with an owner or legal possessor of the personal property . . .". By virtue of this statute, does an individual who tows a motor vehicle to a place of storage acquire a hen upon such motor vehicle V. 41 39 for the wrecker fee involved? Conclusion: G. S. 44A-2 does not create a lien in favor of an individual who tows a motor vehicle to a place of storage. Clearly the vehicle is not "altered", "repaired" or "improved". Webster's Seventh New Collegiate Dictionary (1969) equates the word "treat" with "improve" or "alter". Thus, it does not appear that this term would include the mere towing of a motor vehicle. The only remaining term employed by the statute is "services". In Humble Oil and Refining v. State, 158 S. W. 2d 336, (Texas, 1942), with respect to the word "service", the Court said: "The term as apphed to the service station business has acquired such a general and commonly understood meaning as to require the courts to take judicial notice of it." In this common usage, the term "service" when apphed to a motoi vehicle is considered to require that some work be performed or the vehicle or its component parts that has a beneficial effect or its maintenance or operation. The mechanices lien grows out of the old common law artisans lien In Lee, Liens on Personal Property, 44 N. C. L. R. 322, 327, il is noted that such liens did not arise unless the work was done at the request of the owner or one in privity with him. Very ofter in situations described in the question, there is no request by the owner or one in privity with him that the towing be performed The Attorney General understands the plight of garage and wreckei operators in the disposition of wrecked vehicles but upon the state of the existing law is constrained to reach the conclusion expressed above. ' Robert Morgan, Attorney General ' ~ T. Buie Costen, | Assistant Attorney General ' . 41 7 July 1970 abject: . equested by: Miestion: 'Diiclusion: S. 163-32 provides: 40 Public Officers & Employees; Salaries; County Elections Board Executive Secretary; Authority of County Commissioners in Budget Appropriations. Mr. H. Clyde Ballard, Jr., Chairman Henderson County Board of Elections When a county board of elections has filed its budget statement pursuant to G. S. 153-117, and recommended a certain salary for its executive secretary, may the board of county commissioners, in making its appropriations under G. S. 153-120, appropriate a lesser amount than recommended by the board of elections? Yes. Although G. S. 163-32 and G. S. 163-67.1 authorize the county board of elections to fix the salary of the executive secretary, such salary must be within the budget appropriations as fixed by the county commissioners in the budget resolution. "In all counties the board of elections shall pay its clerk, assistant clerks, and other employees such compensation as it shall fix within budget appropriations. Counties which adopt full-time and permanent registration shall have authority to pay executive secretaries and special registration commissioners whatever compensation they may fix within budget appropriations." S. 163-67.1 provides: V. 41 41 "The county boards of elections, whether operating under the provisions of G. S. 163-67(a) or (b) shall have authority to employ an executive secretary who shall be paid such compensation as recommended by the county board of elections and approved by the respective boards of county commissioners." G. S. 153-120 provides: "The appropriations shall be made in such sums as the board may deem sufficient and proper, whether greater or less then the recommendations of the budget estimate, and the appropriation or appropriations for each department, institution, or agency shall be made in such detail as the board deems advisable: . Robert Morgan, Attorney General James F. Bullock, Deputy Attorney General 21 July 1970 Subject: Requested by: Question : is> Taxation; Ad Valorem; Exemptioni Leased Tangible Personal Property Owne by Bank; G. S. 105-228.13 Mr. Thomas C. Posey Lenoir County Tax Supervisor Whether tangible personal property owne by a bank and leased by the bank to mortgage company is exempt froi personal property ad valorem tax und( G. S. 105-228.13? '. 41 42 onclusion: Tangible personal property owned by a bank and leased by the bank to a mortgage company is exempt from personal property ad valorem tax under G. S. 105-228.13 notwithstanding the use of such property by the mortgage company. jisuant to the provisions of G. S. 105-304, the general rule is that jisonal property shall be hsted for taxation in the name of the ivner thereof, and no exception to this rule is made with respect leased property. Although leased property may be used [clusively by the lessee, such property should still be listed and xed in accordance with its ownership under this general rule, unless is exempted from tax under other provision of the law. S. 105-304 provides in part as follows: "In general, personal property shall be listed in the name of the owner thereof on the day as of which property is assessed; and it shall be the duty of the owner to list the same." Mle there is no specific exemption from taxation of property vned by banks within the Machinery Act, G. S. 105-228.13 •Qvides that the excise tax, which is levied under G. S. 105-228.12 every bank located and doing business within this State, "shall in lieu of . . . taxes levied upon tangible personal property by 'cal taxing jurisdictions." Therefore, any tangible personal property hich is owned by any bank subject to such excise tax is not subject ) ad valorem personal properiy tax. Robert Morgan, Attorney General I. Beverly Lake, Jr.. Assistant Attorney General July 1970 III object: Taxation; Ad Valorem; Listing Property; Person in Whose Name Personal Property Should Be V. 41 43 Listed; Floor Plan Financing Arrangement; G, S 105-304 Requested by: Question: Conclusion: Mr, Bonner R. Lee Hyde County Accountant Whether personal property in the nature of farn machinery and in the possession of a local deale: in such machinery should be Used for taxatior in the name of such dealer when such property is in the dealer's possession under a floor plai financing arrangement whereby a bank o financing institution has made a loan or extendec ^ credit to such dealer through payment of th(.' manufacturfor each item of such machinery, sucl|||: loan to be secured by and repaid upon th dealer's sale of said machinery? Personal property in the nature of farn machinery and in the possession of a local deale in such machinery should be listed for taxatioii in the name of such dealer when such propert is in the dealer's possession under a floor plai financing arrangement whereby a bank financing institution has made a loan or extende( credit to such dealer through payment of th manufacturer for each item of such machiner and such loan is to be secured by and repaid upoi the dealer's sale of said machinery. li A transaction through which a local dealer takes possession of certai machinery for sale under a floor plan financing arrangement, unde which arrangement a bank or financing institution makes a loan o extends credit to such dealer through payment of the manufacture for such machinery and such loan is secured by and is to be repaii upon the dealer's sale of said machinery, would appear to be transaction which would fall within the provisions of subsection (a of G. S. 105-304 which reads as follows: "In general, personal property shall be listed in the name of the owner thereof on the day as of which 41 44 property is assessed; and it shall be the duty of the owner to hst the same. The owner of the equity of redemption in personal property subject to a chattel mortgage shall be considered the owner of the property; and the vendee of personal property under a conditional bill of sale, or under any other sale contract by virtue of which title to the property is retained in the vendor as security for the payment of the purchase price, shall be considered the owner of the property, provided he has possession of such property or the right to use the same," nee the local dealer has the possession of the property or the 'ht to use it under this financing arrangement, if not the legal l:le, such property should be hsted for taxation in the name of ! ch dealer. Robert Morgan, Attorney General I. Beverly Lake, Jr., Assistant Attorney General I July 1970 ibject: equested by: Liestion: Taxation; Inheritance Tax; Safety Deposit Box, Access to; Duty of Clerk of Court Honorable Sion H. Kelly Clerk of Superior Court of Lee County May a clerk of superior court appoint an officer or employee of a bank to represent him at the opening of a safety deposit box of a deceased person at the bank under G. S. 105-24? onclusion: A clerk of superior court may not properly appoint an officer or employee of a bank to act as his representative at the opening of a safety deposit box of a deceased person at the bank under G. S. 105-24. V. 41 45 G. S. 105-24 provides that every bank must require the presenc of "the clerk of the superior court of the county in which sue lock box is located" as a condition precedent to the opening o such a box by the executor, administrator or personal representativ of such deceased person. This statute then further provides a, follows: "It shall be the duty of the clerk of the superior court, or his representative, in the presence of an officer or representative of the safe deposit company, trust company, corporation, bank, . . . to make an inventory of the contents of any such lock box and to furnish a copy of such inventory to the Commissioner of Revenue, to the executor, administrator, personal representative, or cotenant of the decedent, and a copy to the safe deposit company, trust company, corporation, bank . . . having possession of such lock box". (Emphasis added.) It thus seems clear that this statute requires, upon the opening oj a safety deposit box, not only the presence of the clerk or hi representative but also the presence of an officer or representativt of the bank, and in view of the different duties, responsibilities and interests involved, as stipulated in this statute, it would seem U be within the meaning and purpose of this statute, and in the bes interest of the Clerk of Court, that the representative of the Clerlil and the representative of the bank should not be the same persoi or a person having more than one duty or interest to represent Robert Morgan, Attorney General I. Beverly Lake, Jr., Assistant Attorney General 24 July 1970 • " Subject: State Departments, Institutions & Agencies Medical Care Commission; Authority to Classify \ 41 46 Hospital Emergency Services. [quested by: Mr. William F. Henderson, Executive Secretary The North Carolina Medical Care Commission (lestion: Does the North Carolina Medical Care Commission have authority to classify liospital emergency services in accordance with types or classifications of emergency service available, and to require hospitals to maintain the standards of emergency care service of the type or classification which such hospital selects for itself? ()nclusion: Yes, the North Carolina Medical Care Commission does have authority to classify hospital emergency services in accordance with types or classifications of emergency service available, and to require hospitals to maintain the standards of emergency care service of the type or classification which such hospital selects for itself. lie North Carolina Medical Care Commission is considering cissification and defining hospital emergency services according to te types and quality of service which may be available, perhaps i five types such as: Type I - Comprehensive Emergency Center Type II - General Emergency Center Type III - Intermediate Emergency Department Type IV - Limited Service Emergency Unit Type V - First Aid Emergency Unit hch type would be fully described with respect to the facilities, affmg, and scope of care required with respect to each type of Jrvice. Once the classifications were adopted, each hospital would 1 expected to designate the type of emergency services it proposed 1 render. The furnishing of the type of emergency service so elected would be tied in with the licensing of the hospital under ie Hospital Licensing Act, and thereafter each hospital would be I V. 41 ' 47- required to furnish and maintain the standards of tlie type ( emergency service which it elected to render. The question is whether the North Carolina Medical Cai Commission has authority to do this under the provisions of th Hospital Licensing Act. G. S. 131-126.2 provides as follows: "§ 131-126.2. Purpose. - The purpose of this article is to provide for the development, establishment and enforcement of basic standards: "(1) For the care and treatment of individuals in hospitals and "(2) For the construction, maintenance and operation of such hospitals, which, in the light of existing knowledge, will ensure . , - , safe and adequate treatment of such individuals in hospitals, provided, that nothing in this article shall be construed as repealing any of the provisions of article 27 of chapter 130 of the General . Statutes of North Carohna." G. S. 131-126.3 provides in part as follows: : "After July 1st 1947, no person or governmental unit, acting severally or jointly with any other person or governmental unit shall establish, conduct or maintain a hospital in this State without a Ucense." The above statutory provisions constitute an adequate grant c authority from the General Assembly for the North Carohna Medic? Care Commission to carry out such a program with respect t hospital emergency services as is described above. Robert Morgan, Attorney General . , / Harry W. McGalliard, Deputy Attorney General 41 48 August 1970 .ibject: equested by: uestion : nswer: State Departments, Institutions & Agencies; Purchase and Contracts; Necessity of Public Bidding on Contract for Purchase of Computers. Mr. R. D. McMillan, Jr. State Purchasing Officer Purchase and Contract Division Department of Administration Can the Purchase and Contract Division of the Department of Administration purchase a computer for a State agency or State institution, which is now being leased by that agency or institution, without soliciting sealed bids as prescribed by G. S. 143-52? No. The Purchase and Contract Division cannot dispense with the competitive bidding requirements for the purchase of equipment and purchase a computer now being leased by the State agency or institution in the absence of showing that competition would be impossible or unavailable. (he facts as indicated by Mr. R. D. McMillan, Jr. are that several late agencies and institutions are presently leasing 1130 IBM )mputers. IBM has offered to sell these computers to several of le State institutions now leasing them. Officials at the State stitutions consider the offers made by IBM a very good purchase nee and have requested the State Purchasing Officer to purchase le computers without competitive bidding. y weight of authority, a statutory requirement for competitive bids )nstitutes a jurisdictional prerequisite to the exercise of the power r a private corporation to enter into a contract. Teer v. State ighway Commission, 265 N. C. 1 ; Teer v. State Highway ommission, 4 N. C. App. 126. G. S. 143-49 provides that the irector shall have the power and authority and it shall be his duty, ibject to the provisions of this article, to canvass all sources of V. 41 49 supply and to contract for the purchase of all supplies, materials and equipment required by State government, or any of its departments, institutions or agencies under competitive bidding in the manner hereinafter provided for. G. S. 143-52 provides that sealed bids shall be solicited and except as otherwise provided by this article, all contracts for the purchase of supplies, materials or equipment made under the provisions of this article shall whenever, possible be based on competitive bids and shall be awarded to the lowest responsible bidder. | Statutes requiring competitive bidding should not be given suchli construction as to defeat their purpose or impede usual or regular! progress of public business and public improvements, and theiri requirements may be dispensed with when such advertisement will not result in competitive bidding for the work. 43 Am. Jur., Public^ Works and Contracts, sec. 31. The purpose of statutes requiringi competitive bidding is to prevent favoritism, corruption, fraud and, imposition in the awarding of public contracts by giving notice to respective bidders and thus assuring competition which in turn; guarantees fair play and reasonable prices in contracts involving expenditures of substantial amounts of public money. It has application to contracts for the purchase of materials and supplies where the bidders are free to name the price for which they are. wilhng to furnish the thing. It does not apply where the competition would be impossible or unavailable or as to a monopoly. Mullen ' V. Loiiisburg, 225 N. C. 53 at page 59; 43 Am. Jur., Public Works and Contracts, sees. 26 and 3 1 . The Legislature recognizes this exception as it provided in G. S. 136-52 that all contracts for the purchase of equipment shall whenever possible be based upon competitive bids. However, a governmental agency attempting to come within anj exception to the competitive bidding requirements has the burden of showing that it comes within the exception. Raynor v. Commissioners of Louisburg, 220 N. C. 348. The facts as indicated here do not show the absence of competition in the sale of the computers. Therefore, I am of the opinion that the competitive bidding requirements of G. S. 143-52 cannot be dispensed with. Robert Morgan, Attorney General Eugene A. Smith, Assistant Attorney General r. 41 August 1970 ubject: equested by: 'uestion: lonclusion: 50 ABC Act; Beer and Wine; Permit Revocation Hearings; Question of Suitability of Person or Place to Hold a Permit Mr. D. L. Pickard, Assistant Director-Hearing Officer, State Board of Alcoholic Control In a hearing into the suspension or revocation of a wine or malt beverage permit where one of the violations charged is the unsuitabihty of the permit holder to have a permit pursuant to the provisons of G. S. 18-136 and where there is evidence that that permit holder also holds a wine or malt beverage permit for another location, is it proper to admit evidence of a history of violations at premises other than those for which the permit may be suspended or revoked? It is proper in a hearing into the suspension or revocation of a wine or malt beverage permit where one of the violations charged is the unsuitabihty of the permit holder to have a permit pursuant to the provisions of G. S. 18-136 and where there is evidence that that permit holder also holds a wine or malt beverage permit for another location to admit evidence of a history of violations at premises other than those for which the permit may be suspended or revoked. S. 18-136 provides that the State Board of Alcoholic Control nay refuse to issue a new permit or may suspend or revoke any )ermit issued by it if in the discretion of the Board "it is of the )pinion that the apphcant or permittee is not a suitable person to V. 41 51 hold such permit or that the place occupied by the apphcant oi! permittee is not a suitable place." Among those charges of violations of the ABC laws and the regulations of the State Board of Alcoholic Control, charges of unsuitable person or place are very ofteni' included. The inquiry is vi^hether it would be competent to place;| in a record a history of violations of some other location where the apphcant or permittee has held or currently holds other beei| or wine permits. We are of the opinion that the suitability of the apphcant to holdt a permit at the subject premises would logically extend to his! suitability to hold any wine or malt beverage permit and while such: other permit if it still is valid could not be revoked or suspendedij pursuant to a hearing dealing with some other premises, the evidenceii that the applicant or permittee was unsuitable to run some other! premises would also have some logical and legal relevancy to hisi suitability to run the subject premises. Any history of violations on other premises which would be concerned with the suitabihty of those other premises, however, such as violation of the health laws or other matters concerned strictly with those premises would not be relevant to a hearing on the subject: premises, however, and evidence as to violations of that nature should be excluded. Robert Morgan, Attorney General (Mrs.) Christine Y. Denson, ;. ': Staff Attorney 15 September 1970 Subject: Requested by: Licenses & Licensing; Hearing Aid Dealersj and Fitters Board; Authority to Withhold! License Under Grandfather Clause Miss Frances S. Dickinson, Secretary-Treasurer North Carohna State Hearing Aid Dealers and Fitters Board k 41 52 Questions: Conclusions: (1) May the North Carolina State Hearing Aid Dealers and Fitters Board properly withhold a Ucense from a person applying under the grandfather clause (G. S. 93D-7) on the grounds that the person does not have the proper machinery or the necessary certification for it in his place of business? (2) May the Board withhold a license apphed for under the provisions of G. S. 93D-8 for failure of the applicant to have such machinery? (1) The North CaroHna State Hearing Aid Dealers and Fitters Board has no legal authority to withhold a license from a person applying under the grandfather clause (G. S. 93D-7) on the grounds that the person does not have the proper machinery or the necessary certification for it in liis place of business. (2) The North Carolina State Hearing Aid Dealers and Fitters Board has no legal authority to withhold a hcense applied for under the provisions of G. S. 93D-8 for failure of the apphcant to have such machinery. With regard to persons applying for a hearing aid dealers and fitters license under the provisions of Chapter 93D of the General Statutes, an inquiry was made of this Office as to whether the Board's rule requiring the installation of an audiometer on the hcensed premises jand the submission of a certificate that the audiometer is in good iworking order and the submission of a "calibration slip" is a proper requirement before a permit is issued under the grandfather clause (G S. 93D-7). G. S. 93D-7 provides: 93D-7. Persons engaged in the fitting and selling V. 41 53 ; of hearing aids before the passage of this chapter. - Every person engaged in fitting and selling hearing aids upon the effective date of this chapter shall be issued a license by the Board, upon presentation of evidence satisfactory to the Board that he is a person of good moral character, is twenty-one years of age or older, and has been engaged in fitting and selhng hearing aids in this State for at least two years prior to the effective date of this chapter, provided such person pays a fee j of fifty ($50.00) dollars for the issuance of a Hcense by the Board; and provided he makes application to the Board for such licnese within sixty days after the effective date of this chapter. Upon payment of an j additional five dollars ($5.00), a hcense certificate shall | be issued." , , Clearly the only requirements which the Board may properly makei for issuance of a hcense are that the person be of good morali character, be at least 21, have been engaged in fitting and seUingl hearing aids in North Carohna for at least two years prior to the effective date of the section and have paid the license fee of $50.00. The application must be made to the Board for a hcense withini sixty days of the effective date, but since the Board was late intii being organized, this sixty-day hmitation has no practical effect. Thefj statute provides that the person so qualifying ^'sJiall be issued a; license by the Board" {emphasis added) and the Board clearly has no discretion in this matter. Since requirement of the proper i* machinery is not one of the statutory qualifications, it may not properly be a ground for refusal to issue the permit. I The same arguments would apply in case of a person not qualifying^ for a hcense under the grandfather clause but making apphcation under the provisions of G. S. 93D-5 with the further qualification of examination in G. S. 93D-8. CompHance with the rules of the Board are not made a prerequisite for issuance and so any requirements regarding the audiometer would be inapplicable. [ Of course, the Board has rule-making and regulatory authority (G. S. 93D-3) and may suspend or revoke a hcense for failure to comply with those rules (G. S. 93D-13). V. 41 54 13 September 1970 Subject: Requested by: Questions: Robert Morgan, Attorney General (Mrs.) Christine Y. Denson Staff Attorney Administration of Estates; Ancillary Administration; Money Held in Trust in North CaroHna Banks for Deceased Beneficiary; Release to Trustee Honorable H. L. Lewis, Jr. Clerk of Superior Court Pitt County (1) May the clerk of superior court appoint an ancillary administrator in the case of an out-of-state resident who had funds held in trust in a North Carolina bank? (2) Is complete administration of the estate concerning North Carolina assets necessary in North Carolina if New York has already probated the estate as to assets located there? (3) What is the authority or power of the clerk or bank regarding the funds held by the bank for the decedent in North Carolina? Conclusions: (1) The clerk of superior court has power to appoint an ancillary administrator in the case of an out-of-state resident who had funds held in trust in a North Carolina bank. (2) Complete administration of the estate V. 41 ' 55 concerning North Carolina assets is not necessary if New York has already probated the estate as to assets located there. (3) The clerk may approve the handings over of funds to the ancillary administrator j and the bank should pay such funds, | deducting any intangibles tax v^hich the bank has paid on that account, to the' ancillary administratur. It would be the ; responsibility of the administrator to see that any inheritance or federal estate taxes!; are paid. j 1 The inquiry of August 25 indicates that money is held in a local \ bank in North Carolina in trust in the name of X for Y who is 5 now deceased. The facts indicate that Y was a New York resident! at her death and that probate has at least commenced and perhaps | been concluded in the State of New York on Y's estate. The J question is whether the money should be released to the trustee, X, who is making claim to the funds or whether an ancillary,; administrator should be appointed in this State. \ i The inquiry does not indicate the nature of the trust agreement! which X and Y or some other person might have completed with] the bank and so we are unable to determine definitively whether X might have a valid claim to the funds at this point or whether they should go to Y's estate. Assuming, however, that the agreement would provide that the funds would go to Y's estate, this opinion answers the remaining questions regarding the duties of the clerk I and the bank. We emphasize that the assumption that the funds I go into Y's estate is a critical assumption and if the trust agreement | would indicate to the contrary, which would be a matter for the ' bank to decide, then the points made in this opinion would not be valid for these particular funds. It is clear that the clerk of superior court in North Carolina has jurisdiction of the estate. Even if the deceased was a New York resident, G. S. 28-1(3) provides that the clerk will have power to appoint an administrator in the case where V. 41 56 "the decedent, not being domiciled in this State, died out of the State, leaving assets in the county of such clerk, or assets of such decedent thereafter come into the county of such clerk." See also In Re Will of Bmuff, 247 N. C. 92, 100 S. E. 2d, 254 (1957). The clerk therefore has the authority to appoint an ancillary administrator in this estate or to recognize the executor of the estate in New York providing the requirements regarding appointment of a local process agent are complied with. Pursuant to the provisions of G. S. 31-27, the will of the deceased, if one has been probated in the State of New York, may be accepted by the clerk for probate in this State when the requirements of G. S. 31-27 are fully met. Any intangibles taxes which may have become due on the bank account of the deceased have presumably been paid by the bank as they became due and would be a proper deduction against the account before such sums are turned over to the ancillary administrator. In North Carolina, of course, the administrator would be responsible for payment of such inheritance taxes as might be due on the estate. Robert Morgan, Attorney General (Mrs.) Christine Y. Denson, Staff Attorney 12 August 1970 Subject: Taxation; Ad Valorem; Exemptions; Farm Produce; Original Producer; G. S. 105-297(12) Requested by: Mr. Walter J. Cashwell, Jr. Scotland County Attorney V. 41 57 Question: Is seed company an "original producer" under agreement with farmers to produce seed wheat ' and barley which, if acceptable, will be bought by seed company, so that its inventory of seed thus obtained will be exempt from ad valorem taxation under G. S. 105-297(12). Conclusion: Seed company is not "original producer" under agreement with farmers to produce seed wheat and barley which, if acceptable, will be bought by seed company and its inventory thus obtained will not be exempt from ad valorem taxation under G. S. 105-297(12). A seed company obtains seed wheat and barley from farmers, pursuant to the following agreement: ''SEED COMPANY WILL: 1. Furnish planting seed at the rate of per acre for acres. 2. Pay certification fees. , ''" 3. Pay 15 cents premium per bushel • for grain meeting certification standards, less dockage, delivered to its plant. 4. Price per bushel is for grain at 13.5% moisture or lower; standard wheat discounts will be applied to grain above 13.5% moisture. GROWER WILL: 1. Pick up planting seed at Seed Company warehouse in Laurinburg. 2. Exercise due care to avoid mixtures by thoroughly cleaning grain drill, combine, and trucks or trailers used for hauhng seed crop. 3. Do necessary roguing for certification. 4. Spray fields with 2,4-D to control weeds. 5. Repay planting seed at the rate of V. 41 58 1 1/4 bushels of raw seed for each bushel of planting seed received. 6. Sell the entire production of this crop to Seed Company. 7. Select date for settlement of price from date of dehvery to 30 days later, using either quoted local market or the grain price published in the Raleigh News and Observer, less freight to quoted market PROVISO: If the crop does not pass certification, seed may be disposed of as the grov^er wishes. If failure to pass certification is clearly due to negligence on the part of the grower, Seed Company will be reimbursed for planting seed furnished at the rate of per bushel. If failure to pass certification results from any cause not attributable to negligence on the part of the grower, no compensation for planting seed will be due Seed Company." After the seed has been produced, and after it has been sold to the seed company, is it then exempt from ad valorem taxation under G. S. 105-297(12)? G. S. 105-297(12) provides an exemption for: "All cotton or other farm produce owned by the original producer, or held by the original producer in any public warehouse and represented by warehouse receipts, or held by the original producer for any cooperative marketing or growers association, shall be exempt from taxation for the year following the year in which grown, but not for any year thereafter." G. S. 105-297(12) Thus it is necessary to determine whether the seed company is the "original producer". If it is, and either (1) owns the seed or (2) holds it in a pubHc warehouse, as evidenced by warehouse receipts or (3) holds it for a cooperative marketing or growers association. V. 41 59 then such seed will be exempt. If it is not the "original producer", then the exemption is unavailable. Under the agreement, the farmer either "repays" the planting seed, at the rate of 1 1/4 bushels for every bushel he received to plant, or, if the crop is not sold to the seed company due to negligence in the growing of it, he pays the seed company at a specified rate per bushel. In addition, the agreement clearly provides that only if the crop meets certain standards must he ^^sell the entire production of this crop to seed company. " If it fails to meet these standards, "seed may be disposed of as the grower wishes." In effect, the farmer buys the seed from the seed company, and sells the crop produced therefrom to the seed company, and no title, or any other choate interest can be said to be in the seed company until that sale takes place. The seed company would, it seems to us, stand in the same relation to the production of the crop as any other purchaser of farm commodities. That is, it has not "produced" the crop except in the sense that the crop was produced by the farmer for sale, and he in fact sold it, to the seed company. "Producer" is commonly used to denote the person who raises agricultural products and puts them in condition for the market. Tennessee Burley Tobacco Growers Association v. Commodity Credit Corp. (C. A. Tenn.) 350 F. 2d 34, 41. See also Parks v. Federal Crop Ins. Corp. (C. A. Ind.) 416 F 2d 833, 837, where it was held that although farmers made contracts with an agricultural association whereby the association would furnish farmers with seed, a man to supervise planting, and labor, and also agreed to compensate the farmers at the rate of $100 per acre plus a premium of $1.25 per bushel in excess of 20 bushels of seed corn per acre, the farmers themselves were the "producers". Similarly, we conclude that the farmers producing the crop, not the seed company, were the "original producers." The exemption provided in G. S. 105-297(12) is not available to the seed company. ' ' ' Robert Morgan, Attorney General Myron C. Banks, Assistant Attorney General V. 41 26 August 1970 Subject: Requested by: Questions: 60 Business & Commerce; Professional Corporation Act; Applicability to Domestic and Foreign Corporations Mr. Joseph G. Maddrey, Corporations Attorney Office of Secretary of State 1 . Can one or more persons who render professional services as defined in G. S. 55B-2(6) incorporate under Chapter 55 (Business Corporation Act), or is it mandatory that they incorporate under Chapter 55B (Professional Corporation Act)? 2. In light of G. S. 89-13, as amended, would all corporations which were incorporated prior to June 5, 1969, and engaging in the practice of engineering or land surveying, automatically come within the provisions of Chapter 55B on January 1, 1970, without complying with G. S. 55B-15? 3. Does G. S. 89-13 make it mandatory for corporations described in Question 2 to file an amendment under G. S. 55B-15? 4. Would one of the corporations described in Question 2 performing a corporate action, i.e. , selling corporate stock, be governed by the provisions of Chapter 55B in view of G. S. 89-13? 5. Would all corporations which were V. 41 ^ 61 permitted by law prior to June 5, 1969, to render professional services as defined in G. S. 55B-2(6) automatically come under the provisions of Chapter 5 5B on January 1, 1970, or would they still maintain the option to do so by choice, i.e., amendment to its charter? 6. If an individual, firm or partnership located in North Carolina and ' ' performing professional services as defined in G. S. 55B-2(6) should incorporate under the Business Corporation Act of another state, ^ ' could it then domesticate in North CaroHna under Chapter 55 or must ' ~ it domesticate under the provisions of Chapter 55B? 7. If the corporation described in Question 6 is allowed to domesticate in North Carolina under Chapter 55, • " is it required that the individuals within the corporation performing professional services as defined in f G. S. 55B-2(6) be licensed by the appropriate Hcensing board in North Carolina? '~ 8. Can a foreign corporation performing services as defined in G. S. 55B-2(6) but incorporated under its state business corporation ' .- ' act, domesticate in North Carolina ;' under our Business Corporation Act, "~ ' '-' or must it domesticate under ' • Chapter 55B? CONCLUSIONS: 1. G. S. 55B-3 provides: "The V. 41 62 Business Corporation Act shall be applicable to such professional corporations, including their organization, and professional corporations shall enjoy the powers and privileges and shall be subject to the duties, restrictions and liabihties of other corporations, except insofar as the same may be Hmited or enlarged by this chapter. If any provision of this chapter conflicts with the provisions of the Business , Corporation Act, the provisions of this chapter shall prevail." G. S. 55-3(6) provides: "The provisions of this chapter shall apply to every corporation for profit, and, so far as appropriate, to every corporation not for profit having a capital stock, now existing or hereafter formed, and to the outstanding and future securities .--^ ,. thereof, unless the corporation is expressly excepted from the . ' operation hereof or unless there is other specific statutory provision particularly applicable to the corporation or inconsistent with some provisions of this chapter, in which case that other provision prevails." {Emphasis added.) Chapter 55 B makes requirements of the incorporators in addition to those contained in Chapter 55. See _ - " G. S, 55B-4 which provides, inter alia, that at least one incorporator must be a licensee, that all shares of stock must be owned by a licensee or licensees, that at least one director V. 41 63 and one officer shall be a licensee and that the articles of incorporation ^ ' - ' designate the personal services to be performed by the corporation. • See also G, S. 55B-13 which gives greater protection to the pubhc than ' does Chapter 55 with respect to the activities of a professional " ' corporation. From the foregoing •; s provisions of Chapter 55B, it is ' ' clear that the legislative intent is that Chapter 55 B is the sole manner in which a person or persons performing a professional service | could incorporate. "The intent of the legislature controls the interpretation of a statute." 7 Strong, N. C. Index 2d, Statutes, sec. 5. 2. G. S. 89-13 provides: "A corporation or partnership may engage in the practice of engineering or land surveying in this State: Provided, however, the person or persons connected with such corporation or partnership in charge of the designing or supervision which ^^ ; constitutes such practice is or are ' '^ registered as herein required of professional engineers and land surveyors. The same exemptions shall apply to corporations and partnerships as apply to individuals undtT this cha.pteT; provided further, ' that all corporations hereunder shall ' be subject to the provisions of chapter 55B of the General Statutes i"' of North Carolina." (Emphasis added.) \/. 41 64 The underlined portion was enacted in 1969 as Section 28 of Chapter 718 of the Session Laws (The Professional Corporation Act). G. S. 55B-15 provides: ''This chapter shall not apply to any corporation which prior to June 5, 1969, was permitted by law to render professional services as herein defined; provided, however, any such corporation rendering 'professional service' as defined in §55B-2(6) may be brought within the provisions of this chapter by the filing of an amendment to its articles of incorporation declaring that its shareholders have elected to bring the corporation within the provisions of this chapter and to make the same conform to all of the provisions of this chapter." {Emphasis added.) Based on these two statues, a corporation engaged in the practice of engineering or land surveying prior to June 5, 1969, does not automatically come under the provisions of Chapter 55B. However, ' \ such a corporation may elect to come under Chapter 55B by virtue of the proviso in G. S. 55B-15. 3. No. While G. S. 89-13, as amended by Chapter 718 of the 1969 Session Laws, and quoted above, appears at first to be in conflict with G. S. 55B-15, also quoted above, it is possible to give both statutes effect by applying the proviso to the second sentence of G. S. 89-13 to V. 41 65 only those corporations created on or after June 5, 1969. Statutes , , ' ' with conflicting provisions are construed by the courts to give! effect to legislative intent. See 7 Strong, N. C. Index 2d, Statutes,! Section 5. ,4. As to corporations engaged in the practicing of engineering or land^: , ! surveying prior to June 5, 1969, j and not electing to come under Chapter 55B, by virtue of the , , provisions of G. S. 55B-15, all| corporate action will be governed by| . " the provisions of Chapter 55. 5. Under the provisions of: G. S. 55B-15, quoted above, corporations engaged in those;, professions' services listed in| G. S. 55B-2(6)before June5, 1969, ' do not automatically come under the provisions of Chapter 55B. 6. The corporation must domesticate under Chapter 55 B. If one or more| ? . individuals, residents of North Carolina, and practicing a "professional service" as defined in| .^ G. S. 55B-2(6), were to incorporate in another state and then attempt to secure permission to practice in North Carohna under the provisions ' ^ ' of Chapter 55, this would constitute a violation of the spirit of the i Professional Corporation Act, and . . such permission should not be granted. - , 7. , In view of the answer to Question 66 6, an answer to Question 7 is not required. The corporation must domesticate under Chapter 55B. While it is true that the Professional Corporation Act, Chapter 55B, makes no provision for the domestication in North Carolina of a foreign corporation, nowhere in the Act is there any indication that the General Assembly intended to give foreign professional corporations the right to practice in North Carolina without complying with the Professional Corporation Act. To permit foreign professional corporations to practice in North Carohna without complying with the Professional Corporation Act. To permit foreign professional corporations to practice in North Carolina without complying with the Professional Corporation Act would give such foreign professional corporation an advantage over domestic professional corporations which must comply with the Professional Corporation Act. NOTE: With respect to Question 8, this opinion modifies, in part, our opinion of January 29, 1970 to Mr. Joseph G. Maddrey, Corporation Attorney, Office of Secretary of State. The January 29 opinion had expressed the opinion that a foreign professional corporation, in good standing in its state of incorporation, could domesticate in North Carolina under Chapter 55. V. 41 67 Robert Morgan, Attorney General Millard R. Rich, Jr. Assistant Attorney General 30 September 1970 Subject: Requested by: Question: Criminal Law & Procedure; Pre-sentence Diagnostic Study; Appealability of Commitment for; G. S. 148-1 2(b). Mr. Daniel T. Perry Assistant Solicitor Ninth Sohcitorial District Does a defendant who has been convicted [|j in a criminal action have the right to appeal i such conviction where, before passing | sentence, the trial court orders defendant!; to submit to a pre-sentence diagnostic study by the Department of Correction i pursuant to G. S. 148-1 2(b)? An order by the trial court subjecting a convicted defendant to confinement in the custody of the Department of Correction for a pre-sentence diagnostic study pursuant to G. S. 148-1 2(b) is an order in the nature of a final judgment from which the defendant may appeal. An inquiry from the Honorable Daniel T. Perry, Assistant Sohcitor of the Ninth Sohcitorial District, posed the above stated question. G. S. 148-1 2(b) in pertinent part provides as follows: - > "Within the hmits of its capacity, . . .a . - diagnostic center may, at the request of any sentencing court, make a pre-sentence diagnostic study of any person who has been convicted and Conclusion: V. 41 68 is before the court for sentence, and is subject to commitment to the Department, Where necessary for this purpose, the defendant may be received in the center for such period of study as the court may authorize, but may not be held there for more than 60 days unless the court grants an extension of time, which may be granted for an additional period not to exceed 30 days. The total time spent in the center shall not exceed 90 days or the maximum term of imprisonment authorized as punishment for the offense of which the person has been convicted if the maximum is less than 90 days. Time spent in the center for a diagnostic study shall be credited on any sentence of commitment imposed on the person studied. ..." (Emphasis added.) I The emphasized portion of this section clearly indicates that it was the intention of the Legislature that the time spent in pre-sentence diagnostic study be considered as at least a portion of the convicted defendant's sentence. Therefore, any order of the trial court invoking , this "sentence" must be considered a final judgment for the purposes ' of that portion of the sentence, and is therefore appealable. Under this interpretation, appeal from the conviction is immediately . available upon entry of the judgment ordering pre-sentence diagnosis. Therefore, the constitutionality of the statute, G. S. 148-1 2(b), could not be successfully challenged on the ground that it denies defendant his right to appeal. Support for this position is found in the opinion of our Court in State V. Griffin, 246 N. C. 680. The question there considered was whether defendant could appeal a conviction where the trial court had continued prayer for judgment upon the imposition of certain conditions, a situation very similar to the question here involved. At page 682 the Supreme Court stated: "After a conviction. . .the court has power: (1) to pronounce judgment and place it into immediate execution; (2) to pronounce judgment and suspend or stay its execution; (3) V. 41 69 to continue prayer for judgment. When the judgment is pronounced and placed into . execution the defendant has the right of appeal. Likewise, when the judgment is pronounced and its execution is stayed or suspended, such disposition of the cause does not serve to delay or defeat the defendant's right of appeal (citing authority) ... It is sometimes found expedient, if not necessary to continue a prayer for judgment and when no conditions are imposed, (the ii courts). . .may exercise this power with or without the defendant's consent. (Citing cases). . . .(But) when the court enters an order continuing the prayer for judgment and at the same time imposes conditions amounting to punishment (fine or imprisonment) the order is in the nature of a final judgment, from which the defendant may appeal. " It is the opinion of this office that G. S. 148-1 2(b) in effect provides by statute an additional reason for which a sentencing court might desire to continue prayer for judgment, i.e., for the purpose of subjecting defendant to a pre-sentence diagnostic study so as to better tailor the judgment to his individual needs. If the defendant consents to this condition (deprivation of liberty during the time of the study) then no appeal is available nor is there any reason for one. However, the condition imposed, if without defendant's consent, must be considered as one involving involuntary incarceration. Therefore, the order entered by the court would be an order "in the nature of a final judgment" upon which defendant could prosecut an appeal of the conviction. , Robert Morgan, Attorney General ': L. Phihp Covington, Staff Attorney |V. 41 ! 23 September 1970 Subject: I Requested by: Questions: Conclusions: 70 Taxation; Income Taxes; Gross Income; Deductions; Alimony; Separate Maintenance; Periodic Payments; G. S. 105-141.2; G. S. 105-147(21) Honorable I. L. Clayton, Commissioner of Revenue Mr. B. W. Brown, Director Individual Income Tax Division (1) Are alimony payments made under a divorce decree, either absolute or from bed and board, or under a de
Object Description
Description
Title | North Carolina Attorney General reports |
Contributor | North Carolina. Department of Justice. |
Date | 1970; 1971 |
Subjects |
Attorneys general's opinions--North Carolina Automobiles--Transportation--Law and legislation Banking law--North Carolina Children Civil Service--Retirement Criminal law Education Election law Genealogy Liquor laws Insurance Local government Marriage law Mental health laws Public officers--North Carolina Public welfare Taxation--Law and legislation |
Place | North Carolina, United States |
Time Period | (1954-1971) Civil Rights era |
Description | Opinions of the Attorney General. |
Publisher | Raleigh, N.C. :Dept. of Justice,1970- |
Agency-Current | North Carolina Department of Justice |
Standard Number | 0364-362X |
Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
Physical Characteristics | v. ;23 cm. |
Collection | Health Sciences Library. University of North Carolina at Chapel Hill |
Type | text |
Language | English |
Format | Reports |
Digital Characteristics-A | 32071 KB; 728 p. |
Digital Collection |
Ensuring Democracy through Digital Access, a North Carolina LSTA-funded grant project North Carolina Digital State Documents Collection |
Digital Format | application/pdf |
Title Replaces | North Carolina. Department of Justice..Biennial report of the Attorney General of the State of North Carolina |
Audience | All |
Pres File Name-M | pubs_edp_biennialreportattorneygeneral19701971.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_edp\images_master\ |
Full Text | ' THE LIBRARY OF THE UNIVERSITY OF NORTH CAROLINA THE COLLECTION OF NORTH CAROLINIANA C3U0 N87a 1970/72 v.Ul no.1-2 UNIVERSITY OF N.C. AT CHAPEL HILL 00033947141 FOR USE ONLY IN THE NORTH CAROLINA COLLECTION r,,---, Wn. A-lf.P; HI ] T] N< i^L NORTH CAROLINA ATTORNEY GENERAL REPORTS Volume 41 ROBERT MORGAN ATTORNEY GENERAL Digitized by tine Internet Archive in 2011 with funding from Ensuring Democracy through Digital Access (NC-LSTA) http://www.archive.org/details/northcarolinaatt19701971 41 N.C.A.G. - No. 1 , Pages 1 to 196 NORTH CAROLINA ATTORNEY GENERAL REPORTS Opinions of the Attorney General July 1, 1970 through December 31, 1970 MAILING ADDRESS: P. O. Box 629, Raleigh, N.C. 27602 ROBERT MORGAN Attorney General Harry W. McGalliard Chief Deputy Attorney General Jean A. Benoy James F. Bullock Ralph Moody Robert Bruce White, Jr. Deputy Attorneys General Carroll Leggett Special Assistant Attorney General Myron Banks William F. Briley T. Buie Costen Christine Y. Denson Sidney S. Eagles, Jr Eugene Hafer Guy A. Hamlin Claude W. Harris Charles M. Hensey I. B. Hudson Parks Icenhour H. H. Weaver Special Assistant I. Beverly Lake, Jr. Andrew H. McDaniel William W. Melvin William B. Ray Millard R. Rich, Jr. H. T. Rosser Jacob Safron Eugene A. Smith Andrew A. Vanore Robert Weathers Robert G. Webb Thomas B. Wood Assistant Attorneys General Jr. Tom Kane, Ocean Law Consultant James L. Blackburn Lester V. Chalmers H. A. Cole, Jr. Philip L. Covington Edward Eatman ,, . Ernie Evans P. Andrew Giles Ladson F. Hart D. M. Jacobs Rafford Jones Trial, Staff and Richard N. League !^ Charles A. Lloyd James E. Magner, Jr. Burley Mitchell, Jr. Ronald Price James B. Richmond Walter E. Ricks, III Howard P. Satisky Lewis Sauls Real Property Attorneys Russell G. Walker, Jr. Assistant Revisor of Statutes C3^0 / TABLE OF CONTENTS \/ , f \ T-O. ABC Act; Advertising Beer; Power of State 76 Board of Allcoholic Control to Regulate ABC Act; Beer and Wine; Permit Revocation 50 Hearings; Question of Suitability of Person or Place to Hold a Permit ABC Act; Beer and Wine; Sale of Sweet Wine 100 in City of Monroe; Chapter 541, Session Laws of 1963 ABC Act; Malt Beverages; Definition in 73 Labelling as "Malt Liquor" Administration of Estates; Ancillary 54 Administration; Money Held in Trust in North Carolina Banks for Deceased Benficiary; Release to Trustee Administration of Estates; Guardians; 14 Appointment of Child's Guardian When Parents are Living Administration of Estates; Intestacy; 184 Distribution of Intestate's Estate Among Brothers and Sisters and Their Legal Descedants Administration of Estates; Wills; Attestation; 177 Attestation Clause Not Required for Probate Airports; State Highway Commission; Ordinances; 25 Aircraft Landing Area, Regulation of Business & Commerce; Professional Corporation 60 Act; Applicability to Domestic and Foreign Corporations I Civil Defense; Power of Local Political Subdivisions in Civil Defense or Riot and Civil Disorder Emergencies Counties; Buildings; Removal of Social Services Personnel and Equipment to New Quarters; Inapplicability of G. S. 153-9(9) Requiring a Unanimous Vote of the Commissioners and a Specified Published Notice Counties; Salaries of Officers; Conflict in Local and General Acts 21 22A Courts; Clerk of Superior Court; Mental Examination; Authority to Order Physicians to Examine Allegedly Mentally 111 Person 35 Courts; Juveniles; Jurisdiction; Rape or Assault with Intent to Commit Rape Courts; Publications; Ownership of Publications Distributed Under G. S. 147-45 or Court Facility Fees to Officials and Agencies Courts; Solicitors; Judgments; Prayer for Judgment Continued; Right of Solicitor to Pray Judgment Courts; Solicitors; Setting Cases for Trial on Criminal Docket 23 176 97 37 Criminal Law & Procedure; Arrest and Bail; Arrest, Detention, Taking and Fixing Bail 110 Criminal Law & Procedure; Contributing to the Delinquency of a Child; Conviction of a Person Other Than a Parent, Guardian, or Other Person Having Custody or Control of the Child; G. S. 14-316.1 92 Criminal Law & Procedure; Narcotic Drugs; 93 Definition of Infants Under G. S. 90-1 11(c) Criminal Law & Procedure; Pre-sentence Diagnostic 67 Study; Appealability of Commitment for; G. S. 148-12(b) Criminal Law & Procedure; Probable Cause fiearing; 122 Degree of Proof Necessary at Probable Cause Hearing in Natcotics Case; May Law Officer Testify That Certain Substance Was Illegal Drug Criminal Law & Procedure; Search and Seizure; 88 Search Warrants; Surgery and X-ray of Defendant Education; Assignment of Pupils; Assignment on 5 the Basis of Geographic Zones; Residence of Pupils; Appointment of Guardian to Change a Pupil's Residence Education; Teachers; Extracurricular Activities 188 After Normal School Hours Education; Technical Institutes; Teachers; 87 Scholarship Loan Fund for Prospective Teachers; Eligibility of Teacher to Receive Credit on Loan for Teaching in a Technical Institute Under the Pro-visions of G. S. 116-174(5) Indians; Eastern Band of Cherokee Indians; 165 Federal Grant-in-Aid Funds; Authorizing Governmental Agency Infants & Incompetents; Sterilization of 107 Mentally Defective Person; Sterilization by X-ray Infants & Incompetents; Sterilization; 162 Sterilization of Unmarried Minors Under G. S. 90-272; Sterilization Under Article 7 of Chapter 35 ' ' Labor; Fair Labor Standards Act; Applicability 153 to Patients in State Mental Institutions Licenses & Licensing; Hearing Aid Dealers 51 and Fitters Board; Authority to Withhold License Under Grandfather Clause ' Marriage; Miscegenation; Issuance of Marriage . ' 132 License; County Where a License is Valid; " Status of Marriage Without Proper License Mental Health; Drug Addicts; Use of Methadone 103 in Treatment of Motor Vehicles; Drivers' Licenses; Financial ' 99 Responsibility Act of 1953; Unsatisfied Judgments ' ' " Motor Vehicles; Drivers' Licenses; Financial 109 Responsibility Act of 1953; Unsatisfied Judgments ' Motor Vehicles; Drivers' Licenses; Limited 16 Driving Privilege; Modification of Judgment Motor Vehicles; Drivers' Licenses; Record; 116 Entries on Individual's Driver's License Record; G. S. 20-26 Motor Vehicles; Drunken Driving; Riding a .-— 172 Horse on Street or Highway While Intoxicated Motor Vehicles; Liens; Wrecker Fees Not 38 Included in Mechanic's Lien Motor Vehicles; Operator's and Chauffeur's 119 License; Restoration Fee ' Motor Vehicles; Speed Limits; City Ordinances; 167 G. S. 20-141(0(1) and 20-141(b) Municipalities; Building Code; Electrical Code; 93 Authority of City of Kinston to Apply its Fee Schedule Against the County of Lenoir for Electrical Inspections of a County Hospital Located Outside but Within One Mile of the City Limits Municipalities; Contracts; Bidding 187 Municipalities; Ordinances; Repeal; Effect 114 of Court's Construction of Repealed Ordinance on Substituted Ordinance Municipalities; Streets and Highways; Truck 156 Routes Municipahties; Water and Sewage Systems; 12 Authority to Improve and Maintain Sewage Drains Extending Beyond Municipal Limits Municipalities; Water and Sewer Systems; 85 Water System Outside Corporate Limits; Restrictive Covenants on Land Public Officers & Employees; Double Office 194 j Holding; Register of Deeds; Clerk to I the Board of County Commissioners Public Officers & Employees; Double Office 192 Holding; Solicitor, Temporary; Appoint-ment Under G. S. 7A-64 Is Public Office Public Officers & Employees; Medical Examiners 117 and Coroners; Investigation of Deaths; Authority to Remove Dead Body Public Officers & Employees; Retirement; 1 Teachers' and State Employees' Retirement System; Creditable Ser\'ice; Sick Leave; Not Creditable to Meet Disability or Early Retirement Minimum Years of Service Public Officers & Employees; Retirement; 101 Teachers' & State Employees' Retirement System; Creditable Service; Sick Leave; Use for Purpose of Meeting 30 Years Service Qualification Public Officers & Employees; Salaries, County 40 Elections Board Executive Secretary; Authority of County Commissioners in Budget Appropriations Social Services; Adoption of Minors; Venue; 180 Waiver of Venue; Removal of Proceedings from One County to Another Social Services; Federal Social Security Act; 151 Title XIX (Medicaid); Lack of Authority for the State to Pay More Than 50 Percent of the Non-Federal Share of Non- Administrative Program Costs Social Services; Liens; Statutes of Limitations ;; 185 or Conditions Precedent; Tolling of Statutes of Limitations . ' ." Social Services; Medical Assistance; Elimination / 18 of a Category of Services; Elimination of a Category of Persons for Whom Payments Are . to be Made; Reduction in Rates of Payment Social Services; Medical Assistance; Payment 140 of All Non-Federal Costs by the State for Indians on Certain Reservations State Departments, Institutions & Agencies; : .'-' 190 Funds; Deposit of Funds in Banks in Name of State Treasurer; Necessity of Security; G. S. 147-77 Through G. S. - 147-81 State Departments, Institutions & Agencies; 120 Housing Corporation; Appropriation by 1969 General Assembly; Payment to Housing Corporation State Departments, Institutions & Agencies; 46 Medical Care Commission; Authority to Classify Hospital Emergency Services State Departments, Institutions & Agencies; 78 Ports Authority; Power of the Authority to Lease Authority Property to Private Investors State Departments, Institutions & Agencies; 48 Purchase and Contracts; Necessity of Public Bidding on Contract for Purchase of Computers Taxation; ABC Act; Tax on Spirituous Liquors; 144 "Net Profit" Limitation; G. S. 18-85(a); G. S. 18-85.2 Taxation; ABC Act; Tax on Spirituous Liquors; 141 "Net Profit" Limitation; Law Enforcement Expense; G. S. 18-45(15); G. S. 18-85(a) Taxation; Ad Valorem; Exemptions; Farm Produce; 56 Original Producer; G. S. 105-297(12) Taxation; Ad Valorem; Exemptions; Leased 41 Tangible Personal Property Owned by Bank; G. S. 105-228.13 Taxation; Ad Valorem; Exemptions; Personal 27 Property Stored in Pubhc Warehouses; G. S. 105-281 Taxation; Ad Valorem; Listing Property; 42 Person in Whose Name Personal Property Should Be Listed; Floor Plan Financing Arrangement; G. S. 105-304 Taxation; Ad Valorem; Personal Property Exempt; 157 Imported Products Stored in Warehouse; Import-Export Clause, Article I, Section 10, Clause 2, of the United States Constitution Taxation; Ambulance Liens; Garnishment and 134 Attachment; Collection from Without the County; G. S. 44-51.4; G. S. 105-385; G. S. 105-386 Taxation; Income Taxes; Exemptions; Government 146 Instrumentalities; Federal National Mortgage Association Taxation; Income Taxes; Gross Income; Deductions; 70 Alimony; Separate Maintenance; Periodiic Payments; G. S. 105-141.2; G. S. 105-147(21) Taxation; Income Taxes; Gross Income; 137 Exemptions; Annuities Taxation; Inheritance Tax; Safety Deposit Box, , 44 Access to; Duty of Clerk of Court Taxation; Intangibles Tax; Accounts Receivable; -. 175 Periodic Bilhngs by Construction Company; Evidence of Debt Taxation; Privilege License Tax; Branch or Chain 33 Stores; Montgomery Ward Sales Agency; G. S. 105-98 Taxation; Privilege License Tax; Court Reporters; 104 G. S. 160-56 Taxation; Privilege License Tax; Laundry and Dry 80 Cleaning Pick-Up Stations; G. S. 105-74 and G. S. 105-85 Taxation; Privilege License Tax; License Tax Upon 82 Employment Agency; G. S. 105-90 Taxation; Real Estate Excise Stamp Tax; Con- 75 veyances Resulting from Corporate Distribution or Liquidation; Lack of Consideration Taxation; Real Estate Excise Stamp Tax; 149 Exemptions; Foreclosure Deed to Farmers Home Administration; G. S. 105-228.31 Taxation; Real Estate Excise Stamp Tax; 168 Foreclosures; Government Instru-mentalities; Veterans Administration V. 41 7 July 1970 Subject: Public Officers & Employees; Retirement; Teachers' and State Employees' Retirement System; Creditable Service; Sick Leave; Not Creditable to Meet Disability or Early Retirement Minimum Years of Service. Requested by: Question: Mr. J. E. Miller, Director Teachers' and State Retirement System Employees' Conclusion: May sick leave standing to an employee's credit be counted in determining whether he has met the service requirements necessary to be eligible for disability or early retirement? Sick leave standing to an employee's credit may not be counted in determining whether he has met the service requirements necessary to be eligible for disability or early retirement. G. S. 135-4(e) reads as follows: "(e) Creditable service at retirement on which the retirement allowance of a member shall be based shall consist of the membership service rendered by him since he last became a member, and also if he has a prior service certificate which is in full force and effect, the amount of service certified on his prior service certificate; and if he has sick leave standing to his credit upon retirement on or after July 1, 1967. one month of credit for each 20 days or portion thereof, but sick leave shall not be counted in computing creditable service for the purposes of G. S. 135-3 (8) a." {Emphasis added) The sick leave provision was added by the 1967 General Assembly. Various provisions of the statutes fix certain minimum years of V. 41 : creditable service for disability or early retirement. In determining how to apply sick leave credit provided for in G. S. 135-4(e), the' key words are those underhned above which indicate clearly thatl sick leave credit is only allowed "upon retirement" and a person would not be eligible for sick leave credit until he has met through other creditable service the minimum requirements to enable him to retire. Once it is determined that he has met the qualifications for disability or early retirement, then there may be added to the length of his service in computing benefits, "sick leave standing to his credit upon retirement." Robert Morgan, Attorney General Harry W. McGalliard Deputy Attorney General 26 August 1970 Subject: Requested by: Questions: C( Civil Defense; Power of Local Political Subdivisions in Civil Defense or Riot and Civil Disorder Emergencies Mr. James W. Denning, Director Civil Defense Agency (1 ) When a state of emergency or a state of civil defense emergency is declared by the governing body of a county, would this be effective in the incorporated areas within the municipalities of the county or would it be necessary for the governing bodies of the county and the municipalities to make declarations in order that the entire county be covered? (2) If a state of emergency, rather than a state of civil defense emergency, as V. 41 3 described in G. S. 166-8(b) is declared by the Governor or the governing bodies of political subdivisions, to what extent generally are the state and political subdivisions empowered beyond their normally existing powers? Conclusions: (1) When a state of civil defense emergency is declared by the governing body of a county, this would be effective within incorporated municipalities within the county and it would not be necessary for the municipality to declare a state of emergency to exist except where it were necessary for municipal funds or personnel to be used in aid of the emergency situation. When a state of emergency is declared pursuant to the provisions of Article 36A of Chapter 14 of the General Statutes, the county declaration of an emergency does not apply within incorporated municipalites. (2) If a state of emergency is declared pursuant to the provisions of Article 36 A of Chapter 14 of the General Statutes, rather than declaration of a state of civil defense emergency, the powers of the municipalities are contained in G. S. 14-288.12 and the powers of the counties are as contained in G. S. 14-288.13. The Governor's powers are contained in G. S. 14-288.15. This opinion deals with the authority of local governing bodies and not their agents or other local agencies such as a local civil defense agency. As to declarations of a state of civil defense emergency pursuant V. 41 - 4 to the provisions of G. S. 166-8(b), there would appear to be no limitation on counties, when declaring a county-wide civil defense emergency, in acting within the corporate hmits of a municipahty within that county. However, in order to expend municipal funds, make contracts, employ or use personnel or other resources of the municipality, the municipality must join in a declaration of such an emergency to authorize use of municipal funds and materials as the county declaration of an emergency would have no effect on municipal resources as such. As to declarations of a state of emergency in case of riots and civil disorders pursuant to the provisions of Article 36A of Chapter 14 of the General Statutes, G. S. 14-288.13 provides that where the governing body of a county would enact an ordinance setting up provisions in event of declaration of such an emergency, the ordinance would not apply within the corporate limits of any municipality or within any area of the county over which the municipality has jurisdiction unless the municipality by resolution would consent to such an ordinance. Absent such consent, therefore, the county would have no authority within any municipality within its territorial hmits. In a state of emergency in event of riot or civil disorder rather than in a civil defense emergency, the ordinance of a municipality or of a county which might have been previously enacted or would then be enacted would extend the authority of those local government units to such areas as are allowed by G. S. 14-288.12 and G. S. 14-288.13. The Governor's powers are hsted in G. S. 14-288.15. Of course, all of the provisions of the riot and civil disorder article in Chapter 14 deal with extension of authority of law enforcement officers and other pubhc officials in event of such an emergency and, without being confronted with specific factual situations, we cannot suggest an exhaustive hst of the particular powers which might be involved. Robert Morgan, Attorney General (Mrs.) Christine Y. Denson, Staff Attorney V. 41 20 July 1970 Subject: Requested by: Questions: Education; Assignment of Pupils; Assignment on the Basis of Geographic Zones; Residence of Pupils; Appointment of Guardian to Change a Pupil's Residence Mr. A. C. Davis, Controller N. C. State Board of Education (1) What is the authority of a county or a city board of education in assigning pupils on the basis of georgraphic zones? (2) How may a pupil's residence in a zone be determined? (3) When parents are living, may persons other than the parents be appointed the legal guardian of the child for purposes of estabhshing residence in another geographic zone for purposes of pupil assignment? (1) The county and city boards of education clearly have authority to assign pupils based on geographic zones. (2) Residency within the pupil assignment statutes is used in the sense of being the child's "permanent home." (3) It would appear that a guardian may not be appointed in order to circumvent the pupil assignment plans where both parents are living and capable of caring for the child. The inquiry relates to pupils who reside within the Durham County School Administrative Unit (system) who are assigned under a geographic zone plan to a particular school within the system and who wish to attend a school within the system but without the Conclusions: V. 41 ' ( geographic zone of their residence. In this regard, the inquiry advises: "Some local attorneys are telHng their clients that pupils can move in with relatives or friends on the other side of town under certain conditions and thereby establish legal residence there. Several pupils have already done this." It is beyond question that county and city boards of education have authority to assign pupils under a geographic plan. North Carolina G. S. 115-163 states in pertinent part the following: "All pupils residing in a school district or attendance area, and who have not been removed from school for cause, shall be entitled to all the privileges and advantages of the public schools of such district or attendance area in such school buildings to which they are assigned by county and city boards of education." You will note from the above quotaton that the key words are: "All pupils residing in a school district or attendance area.'' Further along in this same statute we have a more detailed explanation as to the right of pupils to attend the public schools and the circumstances under which the boards of education may assign these pupils to particular attendance areas within the school administrative unit. I quote from the last few paragraphs of North Carolina G. S. 115-163 as follows: "Unless otherwise assigned by the county or city board of education, the following pupils are entitled to attend the schools in the district or attendance area in which they reside: (1) All pupils of the district or attendance area who have not completed the prescribed course for graduation in the high school. (2) All pupils whose parents have recently moved into the unit, V. 41 .7 district, or attendance area for the purpose of making their legal residence in the same. (3) Any pupil or pupils living with either father, mother or guardian who has made his or her permanent home within the district." ^n further support of the local board's authority to assign pupils residing within the administrative unit in any manner which the board thinks best. North Carolina G. S. 115-176 states: "Each county and city board of education is hereby authorized and directed to provide for the assignment to a public school of each child residing within the administrative unit who is qualified under the laws of this State for admission to a public school. Except as otherwise provided in this article, the authority of each board of education in the matter of assignment of children to the public schools shall be full and complete, and its decision as to the assignment of any child to any school shall be final." In the last quotation above you will find the key words are: "Each child residing within the administrative unit who is qualified under the laws of this State for admission to a public school." You will further note that in the quotation from the last part of North Carolina G. S. 115-163 the word "reside" is again used and that as to parents who have recently moved into the unit, district, or attendance area, these are required to have moved into such areas "for the purpose of making their legal residence in the same." You will note that for the first time the word "residence" enters into the problem and again in this same portion of North Carolina G. S. 115-163 we find that a pupil or pupils who are living with either father, mother or guardian "who has made his or her permanent home within the district." It is noted that the words "permanent home" are used as descriptive words of eligibihty. No doubt there are many shades of meaning that may be used in V. 41 ' 8 connection with the words "domicile", "residence", and "residing" but for the purposes expressed in the public school statutes these words all have practically the same meaning and this is strengthened by the further use of the words "permanent home" which are used in G. S. 1 15-163 with reference to the eligibihty of pupils to attend the schools. In Howard v Coach Co., 212 N. C. 201, 203, the Supreme Court of North Carohna discusses these terms as follows: "In Home v Home, 31 N. C. 99 (107), speaking to the subject, it is said: 'The term domicile, in its ordinary and familiar use, means the place where a person hves, or has his home; in a large sense, it is where he has his true, fixed, and permanent home, to which, when absent from it, he intends to return, and from which he has no present purpose to remove. Two things, then, must occur to constitute a domicile—first, residence, and second, the intention to make it a home—the fact and the intent.' S. v Carter, 194 N. C. 293; S. c, 195 N. C. 697. "In Watson v R.R., 152 N.C. 215 (217), it is written: 'Probably the clearest definition is that in Barney v Oelrices, 136 U. S. 529: "Residence is dwelhng in a place for some continuance of time, and is not synonymous with domicile but means a fixed and . permanent abode or dwelling, as distinguished from a mere temporary locality of existence; and to entitle one to the character of a 'resident', there must be a settled, fixed abode, and an intention to remain permanently, or at least for some time, for business or other purposes.' To same effect, Coleman v Territory, 5 Okla., 201: 'Resident indicates permanency of occupation as distinct from lodging or boarding or temporary occupation. 'Residence' indicates the place where a man has his fixed and permanent abode and to which, whenever he is absent, he has the intention of returning.' In Wright v Genessee, 117 Mich. 244, it is said: 'Residence means the place where one resides; an abode, a dwelling or 41 9 habitation. Residence is made up of fact and intention. Tliere must be the fact of abode and the intention of remaining.' And in Silvey v Lindsay, 42 Hun. (N.Y.), 120: 'A place of residence in the common-law acceptation of the term means a fixed and permanent abode, a dwelhng place for the time being, as contradistinguished from a mere temporary local residence.' In Re Ellis, 187 N. C. 840 (942)." some cases there may be a difference between "domicile" and residence" although the two words do not necessarily mean the me thing. The distincitions are pointed out in 77 C. J. S. lesidence) p. 289, and in 28 C. J. S. (Domicile) p. 5, sec. 2. ?e also: 17A Am. Jur., Domicile p. 194, sec. 1. As to the various ades of the meaning of the word "residence" as construed by le Supreme Court of North Carohna, see Owens v Chaplin, 228 C. 705; In Re Martin, 185 N. C. 472, 475; Reynolds v Cotton ills. Ml N. C. 412; Barker v Insurance Co., 241 N. C. 3977; aker v Varser, 240 N. C. 260, 267, 268. s to the fact that the word "residing" means the same thing as residence", see the case oi Oliver v Oliver, 219 N. C. 299, where divorce statute required that the plaintiff must have resided in le State for a period of a year and the instructions of the judge f the Superior Court which made this equivalent to "residence" hich are approved by the Supreme Court of North Carolina in lis case. .8 to the word "reside", we find that Webster's New International •ictionary (Second Edition) defines the word as follows: "To dwell permanently or continuously; to have a settled abode for a time; to have one's residence or domicile." 'hat the word "reside" has the meaning of a permanent abode and i in many cases equivalent to the word "residence", see Graham Commonwealth, 51 Pa. 255, 258, 88 Am. Dec. 581; Longwell Longwell, 88 S. W. 416, 417 (Texas); Cochran v Cochran, 162 E. 99 (Ga.); People v Owers, 69 P. 515, 518 (Colo.); Shattuck Maynard, 3 N. H. 123, 124; Phillips v City of Boston, 61 V. 41 ' 10 N. E. 250 (Mass.). inM It would appear, therefore, that the child must attend the scho "f' which serves his grade within the geographic zone in which he resid "" and to which he has been assigned by the local board of educatio iii ''• Moreover, the child should not be allowed to circumvent 1 ^ assignment by moving in with friends or relatives who reside in different geographic zone if the sole purpose of his moving is attend a different school within the administrative unit. There no decision of the Supreme Court of North Carolina or any othis jurisdiction on this particular issue. However, there are cas d elsewhere which use similar rationale. In the case of In I\i Schnipper's Guardianship, 288 N. Y. S. 382, the New Yo] i Supreme Court held that an infant's application for the appointmei of a resident guardian of her person for the sole purpose transferring her legal residence from another State to New Yoi State (New York City) so that she could obtain a gratuitioi education at the city's expense should be denied. New York Cit had a charter provision which made its common schools availabi to pupils whose parents or guardians were actually residents of tl city. The New York Court said: , •; "The appointment of a guardian of the person for the sole purpose of transferring the legal residence of the infant from another State to New York City, so that she may obtain gratuitous education at the expense of the city, would circumvent the spirit as well as the letter of the above cited section of the charter." itiiri leiT Tlie "guardian" as used in our attendance area statute (G. S. la 115-163) refers to a regular guardian as contemplated by Chapteiftati 33 of the General Statutes of North Carolina, as amended. There are two types of guardians under our law: (a) guardian c| the person, and (b) guardian of the estate. The jurisdiction appoint guardians in this State is vested in the clerk of the superid an court (G. S. 33-1) and the clerk may make a separate appointmen of guardian of the person and another as guardian of the estat (G. S. 33-6). Guardians are appointed for infants, idiots, lunatic? or inebriants, and, strictly speaking, guardianship relates to orphan (G. S. 33-1), and a child who has a father or mother, or botl 0' 41 11 ling who are competent and able to look after the child could ircely create a situation where a guardian could be appointed, c-rthermore, the appointment of a guardian is a matter almost impletely within the jurisdiction of the clerk of the superior court, d the clerk acting in a judicial capacity has the right to decide hjiether a guardian should be appointed or not. It was held earlier ; the Supreme Court of North Carolina that the appointment of uiardian was a discretionary matter. Donald v Vick, 15 N. C. 294. preover, the father, under our statutes, is the natural guardian of »; minor child, which makes him guardian of the person, and upon isie father's death the mother becomes the natural guardian of her i|nor child to the same extent that the father would be if living. Re Hoopen's Custody, 282 N. C. 223; N. C. G. S. 33-3. As the circumstances which affect the appointment or n-appointment of a guardian, see generally 39 C. J. S., oJiardian and Ward, sections 6 and 7, pp. 17 and 18. 31 ilierefore, it is hard to envision why or how a clerk in one county b n appoint a guardian for a child whose parents are living and ;l|siding in the same county unless some extradordinary •cumstances such as abandonment of the child or things of that ture in fact occur. It boils down to the fact that there appears be no authority of law for the appointment of a guardian for e mere purpose of having a child attend a selected public school. the child has a guardian properly appointed for real guardianship irposes, then the residence of the guardian can be a factor to ;termine the proper legal attendance of the child in our public hools. conclusion, where county and city boards of education have tablished geographic attendance areas within the administrative lit, pupils residing within the geographic attendance area may not nove in with friends or relatives on the other side of town" who 'e within a different geographic attendance area for the sole irpose of attending a school within the administrative unit other .an the one to which the pupil has been previously assigned by i.e county or city board of education. Robert Morgan, Attorney General Andrew A. Vanore, Jr., Assistant Attorney General V. 41 31 August 1970 Subject: Requested by: Question: 12 Municipalities; Water and Sewage Systen Authority to Improve and Maintain Sewa Drains Extending Beyond Municipal Lim Honorable R. Odell Payne Representative from Guilford County North Carolina General Assembly [ATI Conclusion: When a creek, lying partially within ai partially without municipal Umits, utilized by the municipality as a sewa drain, is authority vested in t] municipahty or in the county to acqui rights-of-way or easements necessary dredge and maintain for sewage purpos that portion of the creek lying outside tl municipal limits? The municipality and the county each ha' authority to acquire rights-of-way ar easements necessary for the improvemei and maintenance for sewage pruposes < those portions of the creek lying outsic municipal limits; and the county and tl municipahty may jointly participate : such improvement and maintenanc including acquisition of necessai rights-of-way and easements. The facts as set forth indicate that the City of Greensboro discharge treated waste from its waste treatment plant into Buffalo Creel The creek flows outside the municipal limits across Guilford Count! and eventually into the Haw River. The City of Greensboro ha ' undertaken a program of dredging the creek within the municip; limits, and it is desirable to continue such dredging beyond th municipal limits in order to improve the flow within the creek. I order to accomplish such dredging, it will be necessary to securff' rights-of-way or easements from abutting owners of private property ^ts, 41 13 ere are numerous statutes which set forth the powers and thority of counties and municipalities with regard to sewage and linage systems. The statutes considered to be applicable and ntrolling in the present instance are hereinafter set forth. ATUTES RELATING TO MUNICIPALITIES: S. 160-204 specifically authorizes a municipality to purchase "any id, right of way, water right, privilege, or easement, within or ^side the city" as may be necessary "for the purpose of opening, abhshing, building, widening, extending, enlarging, maintaining, operating any. ..sewerage or drainage systems" owned or operated the city or in its behalf. G. S. 160-205 authorizes the micipality to acquire such property rights for such purposes by idemnation. OS S. 160-239 authorizes a municipality to establish and maintain ewage system and "if it shall be necessary in obtaining proper tlets to such system to extend the same beyond the corporate dts," to "condemn a right-of-way or rights-of-way to and for such tlets. ..." S. 160-255 authorizes a municipahty to own and maintain a sewer tem and empowers it "to acquire and hold rights-of-way, water its, and other property within and without the city limits." S. 153-9(46) authorizes a county to "acquire, construct, onstruct, extend, improve, operate, maintain, lease and dispose ..sanitary sewer systems." S. 153-284 authorizes the board of county commissioners of any mty to "(1) Acquire, lease..., construct, reconstruct, improve, end, enlarge, equip, repair, maintain and operate any. ..sanitary /erage system or parts thereof, either within or without the undaries of the county and to acquire in the name of the county gift, purchase or eminent domain. ..improved or unimproved lands rights in land, and to acquire such personal property or water hts as it may deem necessary . . . ." S. 153-285 authorizes the board of county commissioners "to mde... sewerage services to any and all persons including... V. 41 14 municipalities. ..either within or without the boundaries of t county . . . ." -. . G. S. 153-287 authorizes "Any county or municipality and any othpsti county or counties or municipality or municipalities. ..jointly acquire, lease..., construct, reconstruct, improve, extend, enlarg equip, repair, maintain and operate. ..any sanitary sewer system parts thereof, either within or without the boundaries of any su counties or municipalities, and to acquire by gift, purchase or t exercise of eminent domain. ..any improved or unimproved lands rights in land, and to acquire such personal property or water rig as may be deemed necessary. ..." In the appropriate circumstance, the board of county commissionc is authorized by Articles 2 and 12 of Chapter 156, North Caroli; General Statutes, to provide for the cleaning out and draining i any non-navigable stream, creek, swamp or branch to protect t] public health. leir lie; There is very substantial authority, therefore, for either the Cifaiits of Greensboro or Guilford County, separately, or both jointly, kl improve, dredge, and maintain Buffalo Creek for sewage purposja and to secure property or rights in property necessary for sU' purposes. Robert Morgan, Attorney General Henry T, Rosser, Assistant Attorney General Parks E. Icenhour, Assistant Attorney General ily 31 August 1970 Subject: Requested by: Administration of Estates; Guardian Appointment of Child's Guardian Wh| Parents are Living Honorable Ben G. Floyd, Jr. 41 15 Clerk of Superior Court Robeson County tfestion: Does the clerk of superior court have authority, when both parents are living together and providing the support and maintenance for a child, to appoint another person as guardian for that child upon appHcation of the parents? ^Inclusion: The clerk of superior court does not have authority, when both parents are living together and providing the support and maintenance for a child, to appoint another person as guardian for that child upon application of the parents. e inquiry indicates that there has been a rise in the number of plications for appointment of a guardian over the person of ants. This appHcation is made by the parents of the child who living together and providing the entire support for the child, appears that such apphcations may be made for pupil assignment schools under the guardians' rather than the parents' address. apter 33 of the General Statutes dealing with appointment of al irdians lists the situations in which guardians may be appointed. is occurs where there is no natural guardian (G. S. 33-1.1), where : parents appoint a guardian by their will when they are the last viving parent (G. S. 33-2), the appointment of mother as irdian upon the death of the father (G. S. 33-3), the appointment a guardian upon divorce of the parents (G. S. 33-4), and the Dointment of a guardian when the father is living (G. S. 33-5). ly the latter statute would appear to have any appHcation to t situation posited in your letter. That statute provides: "§ 33-5. Appointment when father Uving. - The clerk of the superior court may appoint a guardian of the estate of any minor, although the father of such minor be living. And the guardian so appointed shall be governed in all respects by the laws relative to guardians of the estate in other cases, but shall have V. 41 16 no authority over the person of such minor." It would appear that G. S. 33-5 does not give the clerk authorit to appoint a guardian in the instance mentioned in your letter. '. would seem that the purpose of the section is to provide someom to control the estate of the minor when his father might otherwia be incompetent to do so but the statute specifically excludd guardianship of the person of the minor. G. S. 33-6 provides fc" separate administration of guardianships of the person and the estali of a minor. Since the appointment of guardians is now governed by statutoi authority, there would seem to be no other jurisdiction in the coui to appoint a guardian. While it is well established that the cour of our State are the guardians of minors and their estates, the] would appear to be in the instances posited in your letter no thre." of immediate harm to the person or property of the infant ati^ the court's jurisdiction would not adhere. Enclosed for your further information is a copy of tH July 20, 1970, opinion to Mr. A. C. Davis, Controller, State Boai of Education, which deals with some of the education law question for which this opinion on the authority of the clerk is a supplement ., . . Robert Morgan, Attorney General (Mrs.) Christine Y. Denson, . Staff Attorney 31 August 1970 Subject: Requested by: Question: Motor Vehicles; Drivers' Licenses; Limite Driving Privilege; Modification of Judgmei Judge John T. Brock Davie County Criminal Court Defendant is convicted of a first offeni of driving under the influence < /. 41 17 inclusion: intoxicating liquor and given a suspended sentence. After the term of court has expired, may the judge reopen the case and grant the defendant a limited driving privilege? After the term of court during which defendant was convicted and judgment entered upon that conviction, the court has no authority to reopen the case and grant defendant a limited driving privilege. NCAG Opinion of 18 September 1969, to Commissioner Joe W. Garrett, Department of Motor Vehicles. n the above opinion, it is stated: "I am of the opinion that inferior courts have no authority to vacate or modify correct and valid judgments after the term during which they are rendered has expired. This opinion I feel is substantiated by decisions of the Supreme Court of North Carolina, beginning with State V. Warren, 92 N. C. 829 (1885), and including State v. McLeod, 222 N. C. 142 (1942), and State v. Lawrence, 264 N. C. 220 (1965). In the case of Recorder's Courts, this rule of law has been codified as G. S. 7-221 which reads as follows: 'When any case has been finally disposed of by the recorder and judgment pronounced therein, the case shall not thereafter be reopened or the judgment or sentence rendered therein changed, modified or stricken out by the recorder after the adjournment of the weekly term of court or after the adjournment of V. 41 IJ any special term of court by the recorder.'" The opinion further states: ". . . ex post facto actions purporting to vacate or modify correct and valid( judgments would appear to infringe upor« the exclusive prerogative of the Governor to exercise the power of pardon or discharge. In State v. Lewis 246 N. C. 249 (1946), the Court said: "After a defendant has begun the service of his term ... it is beyond the jurisdiction of the judge to alteij it or interfere with it in any way The power of pardon, parole or discharge during the term of imprisonment is by the Constitution the exclusive prerogative of the Governor.'" Robert Morgan, Attorney General T. Buie Costen, Assistant Attorney General 1 September 1970 Subject: Social Services; Medical Assistance; EHmination of a Category of Services; EHmination of a: Category of Persons for Whom Payments Are to be Made; Reduction in Rates of Payment. Requested by: Mr. Chfton M. Craig, Commissioner State Department of Social Services Questions: (1) May the State Board of Social Services \i 41 19 lawfully eliminate from the Medical Assistance program any category of services which are described in section 8(b) of the special provisions of the 1969 Appropriations Act as follows: "hospital care (in-patient and out-patient), x-ray, laboratory, physicians services (practitioners of medicine or surgery, podiatry, and osteopathy), home health services, nursing home care, drugs, dental care and dentures, optometric services and eye glasses"? (2) May the State Board of Social Services lawfully eliminate, as a category of persons for whom payments are to be made, the "medically indigent" described in section 8(a) (2) of the special provisions of the 1969 Appropriations Act as "individuals who are over 65 years of age, or are permanently and totally disabled, or are blind, or are members of families with dependent children, and whose incomes are insufficient to provide necessary medical care, as determined by the Board of Social Services"? (3) In the absence of any federal requirement to the contrary, may the State Board of Social Services lawfully make a reduction of rates of payment to providers of the items and services listed in section 8(b) of the special provisions of the 1969 Appropriations Act as follows: "hospital care (in-patient and out-patient), x-ray, laboratory, physicians services (practitioners of medicine or surgery, podiatry, and osteopathy), home health services, nursing home care, drugs, dental care and dentures, optometric services and eye glasses"? (1 ) The State Board of Social Services may not lawfully eliminate from the Medical Assistance program any category of services which are described in sectionn 8(b) of the special provisions of the 1969 Appropriations Act as V. 41 ' 20 follows: "hospital care (in-patient and out-patient), x-ray, laboratory, physicians services (practitioners of medicine or surgery, podiatry, and osteopathy), home health services, nursing home care, drugs, dental care and dentures, ' optometric services and eye glasses". llie (2) The State Board of Social Services may not lawfully eliminate, as a category of persons for whom payments are to be made, the "medically indigent" described in section 8(a) (2) of the • special provisions of the 1969 Appropriations Act as "individuals who are over 65 years of age, or are permanently and totally disabled, or are blind, or are members of families with dependent children, and whose incomes are insufficient to, provide necessary medical care, as determined by the Board of Social Services". (3) In the absence of any Federal requirement to the contrary, and subject to the approval of the Advisory Budget Commission, the State Board of Social Services may lawfully make aj reduction of rates of payment to providers of the ;. items and services listed in section 8(b) of the special provisions of the 1 969 Appropriations Act as follows: "hospital care (in-patient andj ' out-patient), x-ray, laboratory, physicians services' (practitioners of medicine or surgery, podiatry, and osteopathy), home health services, nursin home care, drugs, dental care and dentures,j optometric services and eye glasses". Alluding to conclusions (1) and (2), it appears that the Appropriations Act expresses the intent of the Legislature that none of the categories of eligible persons nor any category of items or services described in section 8(a) and (b) of the special provisions of the Act may be eliminated. In the Act, the list of services is preceded by the words "The services provided will be limited to" and the hst of eligible categories of persons is preceded by the words "Persons eligible for services will be Hmited to". It is thought that V. 41 21 these are affirmative statements of what categories of persons and services will be included, and not merely a statement of the limits not to be exceeded by the State Board of Social Services. This view is supported by the introductory statement in section 8 of the special provisions that "Funds appropriated... for the purpose of implementing Title XIX (Medicaid) effective January 1, 1970, are intended to provide for the following.'' (Emphasis added) Conclusion No. (3) is based upon the pertinent portions of the special provisions of the 1969 Appropriations Act as follows: "Sec. 7. Appropriations made herein to the various State agencies for the purpose of purchasing medical, dental, optometric and hospital services, including all services provided under Title XIX of the Social Security Act, and for care in homes for the aged, will be disbursed on the basis of rates and fee schedules approved by the Advisory Budget Commission. {Emphasis added) "Sec. 8. . . .(g)The Department of Social Services will develop the State Plan for Title XIX to meet State and Federal requirements and establish policies to assure adequate program control subject to the approval of the Advisory Budget Commission.'' {Emphasis added) Robert Morgan, Attorney General R. S. Weathers, Assistant Attorney General 2 September 1970 Subject: Counties; Buildings; Removal of Social Services Personnel and Equipment to New Quarters; Inapphcability of G. S. 153-9(9) Requiring a Unanimous Vote of the Commissioners and a Specified Published Notice. V. 41 Requested by: Question: Conclusion: 22 Mr. Edgar P. Israel, Director Haywood County Department of Social Services In order to move the Haywood County Social Services Department from quarters in the County Education Building, are the Haywood County Commissioners under legal obligation to comply with the provisions of G. S. 153-9(9) requiring a unanimous vote of the Commissioners and requiring a specified published notice for the removal, or the designation of a new site for, any county building? In order to move the Haywood County Social Services Department from quarters in the County Education Building, the Haywood County Commissioners are not under legal obligation to comply with the provisions of G. S. 153-9(9) requiring a unanimous vote of the Commissioners and requiring a specified published notice for the removal, or the designation of a new site for, any county building. It is recognized that moving the brick and mortar or other materials making up a building, or designating a new site for a building required by statute to be known by a specified name, such as a | courthouse, would fall within the purview of the statutory provision under consideration. However, it is not perceived that the moving of personnel, equipment, and materials from quarters in a building also occupied by the County Department of Education constitutes the moving a building or the designation of a new site for a county building within the meaning of the statute under consideration. Hence the conclusion stated above. Robert Morgan, Attorney General R. S. Weathers, :. ^ Assistant Attorney General V. 41 2 September 1970 Subject: Requested by: og Question: id ty ty to Conclusion: 22A Counties; Salaries of Officers; Conflict in Local and General Acts Mr. James R. Sugg Craven County Attorney May the Craven County Board of Commissioners increase the Sheriff's salary during an election year under the provisions of Chapter 842, Session Laws of 1959, or must the Board of Commissioners follow the procedures set forth in G. S. 153-48.1 as enacted by Chapter 358, Session Laws of 1969? Chapter 842, Session Laws of 1959, was not repealed by Chapter 358, Session Laws of 1969, and the County Commissioners should proceed under the authority of the 1959 special act to fix the salary of the Sheriff of Craven County. li 'The Board of County Commissioners of Craven County desire to rincrease the sheriff's salary at this time, but some question has arisen ] as to the Board's authority to proceed under Chapter 842, Session Laws of 1959, due to the provision contained in G. S. 153-48.1 relating to the procedure to De followed for increasing the salary of an elective officer in an election year. J Section 3 of Chapter 358, Session Laws of 1969, provides that all 1 special, local and private acts fixing the number, salaries, fees, n allowances and other compensation of county officers shall continue e in full force and effect until superseded by action taken in accordance with the provisions of this Act. It is noted that Chapter 842, Session Laws of 1959, does not fix the salary of the Sheriff of Craven County, but authorizes the County Commissioners to increase any salaries and allowances paid to any officer of Craven County. V. 41 23 Thus, Chapter 842, Session Laws of 1959, was not repealed by the 1969 Act and since it does not fix the salaries of officers, it would appear that there is no procedure whereby the special act can be superseded by any action taken under the provisions of the 1969 Act. Robert Morgan, Attorney General James F. Bullock, Deputy Attorney General 2 September 1970 Subject: Requested by: Questions: Courts; Juveniles; Jurisdiction; Rape or Assault with Intent to Commit Rape Mr. Charles B. Winberry Chief District Prosecutor Seventh Judicial District (1) If a 13 year old male has committed an offense which would be a capital crime if committed by an adult, may he be bound over to the superior court for trial aften a finding of probable cause by a district|l court judge under G. S. 7A-280, and may any person under the age of 14 years be placed on trial in superior court for an alleged crime? (2) If a 13 year old male has committed an offense which would be a capital crime if committed by an adult, is it proper for his case to be heard as a juvenile hearing in district court? (3) May a 13 year old male be convicted of rape or assault with intent to commit rape in North Carolina? V. 41 24 Conclusions: (1) If a 13 year old male has committed an offense which would be a capital crime if committed by an adult, he may not be bound over to the superior court for trial after a finding of probable cause by a district court judge under G. S. 7A-280. No person under the age of 14 years may be placed on trial in superior court for an alleged crime. (2) If a 13 year old male has committed an offense which would be a capital crime if committed by an adult, it is proper for his case to be heard as a juvenile hearing in district court. (3) There is an irrebuttable presumption that a 13 year old is incapable of rape or assault with intent to commit rape. G. S. 7A-280 sets out the conditions under which a child under 16 years of age may be tried in Superior Court and it appears from oei;he first sentence of G. S. 7A-280 that the entire statute pertains i only to juveniles who are at least 14 years of age. :ei ct The provisions of G. S. 7A-277 and G. S. 7A-278 give the district 3) court exclusive original jurisdiction over children under the age of ^i 16 years. ,ii Alluding to conclusion (3), a case in point is State v Sam 60 N. C. 293 (1864). In that case, the jury found that the defendant li made an assault on the body of Camilla Ann Brock with an intent, Hi forcibly and against her will, carnally to know her. The court gave 01 judgment for the prisoner and the state appealed. The court said i! that "The question brought up in this case for review is whether a person of color, under 14 years of age, can be convicted of an assault with intent to commit a rape." The court held that the '} presumption against the commission or rape "by persons below the 'age of puberty (14) is irrebuttable." "This not so much on the ground of incapacity of mind or wih but of physical impotency. V. 41 25 It will follow as a plain legal deduction from this that the person under 14 cannot commit an assault with intent to commit rape. It is a logical solecism to say that a person can intend to do what he is physically impotent to do. . . .The presumption which arises from want of age appHes equally to the offense of rape and the offense of assault with the intent to commit it. Both presumptions are alike irrebuttable." The Court in State v Sam, supra, called attention to the fact that the General Assembly could change these common law presumptions. The Legislature has chosen not to act since this decision of long standing. We are aware of the case oi State v Smith, 213, N. C. 299 (1938), in which the Court in dicta (the defendant Smith was 15 years old) stated that the lack of capacity for criminal intent of a 7 to 14 year old was rebuttable. However, this statement (213 N. C. at p. 303) was dicta and dealt with capacity for intent rather than physical capacity. It appears that State v Sam, supra, has not been overruled. Robert Morgan, Attorney General R. S. Weathers, Assistant Attorney General 3 September 1970 Subject: Requested by: Question: Airports; State Highway Commission; Ordinances; Aircraft Landing Area, Regulation of Mr. John Davis, Chief Engineer, State Highway Commission Does the State Highway Commission Ordinance regulating airport construction and alteration require safe clearances between a State highway and an aircraft N. 41 26 landing area in accordance with State Highway Commission standards, when the landing area existed prior to December 2, 1966, the effective date of the ordinance? Conclusion: No. The safe clearance standards adopted by the ordinance are not applicable to aircraft landing areas constructed prior to December 2, 1966, unless the landing area is subsequently altered. The facts are indicated by a letter of August 24, 1970, from ^the State Highway Chief Engineer and other correcpondence attached to the letter are that an airstrip was constructed parallel to SR il #1356 in Vance County in 1952 and it was extended in 1964. The I Chief Engineer inquired of this office as to whether or not under t the highway ordinance "we are empowered to act to provide safe J clearances between highways and airports or landing strips that r, existed prior to December 2, 1966". The pertinent provisions of the State Highway Commission Ordinance promulgated on December 2, 1966, pursuant to G. S. 136-18(22) are as follows: "1. (a) All construction or alteration (emphasis added) of airports or aircraft landing area, . . . shall be in conformity with standards established by the State Highway Commission, ... "(b) No such construction or alteration {emphasis added) shall be undertaken without having obtained a written permit from the State Highway Commission . . . and all such construction or alteration must be in accordance with said written permit. "(c) The person . . . seeking a permit for construction or alteration (emphasis added) of an airport or aircraft landing area shall . . . submit to the State Highway V. 41 ' 27 Commission the plans and designs of the proposed construction or alteration, . . . "3. . . . nor shall the provisions of this ordinance be construed to prohibit necessary repairs from being made to or on any airport facilities now in existence, regardless of their location." The provisions of the ordinance are clear that it applies only in cases of construction or alteration and it specifically provides that it does not prohibit repairs to existing facilities regardless of location The standards for safe clearances established by the ordinance have no apphcation to an aircraft landing area constructed prior to December 2, 1966, unless it is subsequently altered. Robert Morgan, Attorney General Eugene A. Smith, Assistant Attorney General 4 September 1970 Subject: Requested by: Question: Conclusion: Taxation; Ad Valorem; Exemptions Personal Property Stored in Public Warehouses; G. S. 105-281 Mr. D. R. Holbrook Administrative Office State Board of Assessment What property of a nonresident, shipped into this State and placed in a pubHc warehouse, is not subject to assessment for ad valorem taxation in this State? Personal property of a nonresident is not subject to assessment for ad, V. 41 28 valorem taxation in this State when it is: (a) in its original package (or fungible goods in bulk); (b) shipped into this State by the nonresident; (c) placed in a portion of a public warehouse, which portion is not owned or leased by the consignor or consignee of such property (or by a subsidiary of either); and (d) for transshipment; but only if (1) the original bill of lading specifies that the property is for transshipment, and (2) the property is only temporarily at rest pending completion of its delivery in interstate commerce. Chapter 1185 of the 1967 Session Laws contained the following amendment to G. S. 105-281: "Personal property of nonresidents of the State in their original package or fungible goods in bulk, belonging to a nonresident of the State, shipped into this State and placed in a public warehouse for the purpose of transshipment to an out-of-state or within the State destination and so designated on the original bill of lading, or personal property of residents of the State in their original package and fungible goods in V. 41 29 bulk, belonging to a resident of the State, placed in a public warehouse for the purpose of transshipment to an out-of-state destination and so designated on the original bill of lading, shall be, while so in the original package, or as fungible goods in bulk, in such warehouse, and they are hereby designated a special class of personal property and shall not be assessed for taxation. No portion of a premises owned or leased by a consignor or consignee, or a subsidiary of a consignor or consignee, shall be deemed to be a public warehouse within the meaning of this section despite any licensing as such. It is hereby declared to be the policy of this State to use its system of property taxation in such manner, through the classification of the aforementioned property, to encourage the development of the State of North Carolina as a distribution center. For purposes of this section and this subchapter, the term 'property, real and personal', as used in the first paragraph of this section, shall not include the property hereinabove in this : paragraph so specially classified." Analysis of that provision indicates that certain conditions must be met before property of a nonresident, shipped into North Carolina and stored in a public warehouse, may escape assessment for ad valorem taxation in North Carolina. Such property must be: (a) in its original package (or fungible goods in bulk, such goods being "goods, any unit of which is, from its nature or by mercantile custom, treated as the equivalent to any other unit." Edwards v. Cleveland Mill and Power Co. 193 N. C. 780, 138 S. E. 131 (1927). (b) shipped into this State by the nonresident; V. 41 30 (c) placed in a portion of a public warehouse, which portion is not owned or leased by the consignor or consignee (or by a subsidiary of either); (d) for transshipment to an out-of-state or within the State destination; and the original bill of lading must state that such goods are for transshipment to an out-of-state or within the State destination. Some question has arisen as to whether the bill of lading must state the name and address of the consignee. On its face the statute does not require that this be stated, and we are inclined to believe that this is not required. And since, if a nonresident has shipped the goods to North Carohna for transshipment, they can only be transshipped out-of-state or within the State, it would be meaningless to require a formal recital of that language on the bill of lading. It would be sufficient if the bill of lading merely recited "for transshipment" or some similar indication of the status of the goods. It is interesting to note that a Kentucky statute, KRS 132.095, virtually identical to ours, is similarly interpreted administratively. In a letter dated 4 November 1969, the Director, Property and Inheritance Tax Division, Kentucky Department of Revenue wrote: "At first glance it would appear that the original bill of lading must designate the ultimate recipient of the goods in storage. However, it has been argued by the sponsors of this legislation that this interpretation would not be consistent with similar statutes in other states and would render the act useless. Their intent (so I am told) was to label goods for 'transshipment' in order to indicate that it was temporarily at rest and therefore subject to the special rate. The Department of Revenue has tentatively agreed to this interpretation and is administering the statute in that manner." However, to become engrossed in the language that must appear on the original bill of lading is to miss the principal point of the law. Every indication points to a conclusion that the 1967 Act had reference to goods which were in public warehouses in this State, temporarily at rest, while completing their delivery in the course of interstate commerce. Several considerations lead to that conclusion. V. 41 31 1. The goods must be stored for "transshipment". This term has a precise meaning: "The act of taking the cargo out of one ship and loading it in another". (Black's Law Dictionary, 4th Ed.) "Transshipment" and "forwarding" are interchangeable. (Smith, Kirkpatrick & Co. v. Colombian S. S. Co. (C. C. A. Canal Zone) 88 F. 2d 392. The act of transferring "for further transportation from one ship or conveyance to another". (Webster's Third New International Dictionary.) Thus the goods, held at a warehouse, are merely awaiting further transportation to their destination. They are only temporarily at rest. 2. The original bill of lading must show that the goods are destained for further shipment (transshipment). The original bill of lading would be, we think, that bill of lading which brings the goods into this State, not a subsequent bill of lading, prepared after the goods have been stored here. This implies that an ultimate destination must be known when the goods are shipped into this State, whether or not shown on the bill of lading. 3. The title of the Act indicates that it appHes specifically to goods moving in interstate commerce: "An Act To Classify Personal Property in Interstate Commerce Stored in Public Warehouses in North Carohna For Ad Valorem Tax Purposes." (c. 1185, S. L. 1967.) That title must be considered if the meaning of the act is in doubt. The Supreme Court stated in Sykes v. Clayton, 274 N. C. 398, 163 S. E. 2d 775 (1968): "The title is part of the bill when introduced, being placed there by its author, and probably attracts more attention than any other part of the proposed law, and if it passes into law, the title thereof is consequently a legislative declaration of the tenor and object of the act . . . Consequently, when the meaning of an act is at all doubtful, all the authorities now "' concur that the title should be considered." V. 41 32 The Act's title indicates clearly that the property which is the subject of the act is property which is still in the channels of interstate commerce. Thus, the notation of "for transshipment" on a bill of lading is not as important a consideration as the fact of the goods being en route to a destination, in interstate commerce, while they are temporarily at rest in the public warehouse. "When there is a break in the flow of interstate transportation, the interruption may subject the goods to the jurisdiction of the state in which it occurs. A stoppage to facilitate the journey, such as holding goods on a dock awaiting the arrival of a steamer, is considered a part of the journey itself. Likewise, if the interruption is due to natural causes over which the owner has no control, the flow of transportation is deemed uninterrupted. Nor is the continuity of transportation broken, when the interruption is necessary to promote the safe or convenient transit of the goods." (P-H State & Local Tax Serv., All States Unit, 1193668.) But that is not to say that such goods remain in interstate commerce when the consignor stores his goods in a public warehouse pending receipt of order which he fills from that stock. "When the foreign corporation stores its goods in the state and sells those goods through its agents in the state, the sale of the goods is a transaction of the corporation's own business and, by its nature, is not within the protection of the commerce clause of the federal constitution." (P-H State & Local Tax Serv., All States Unit, 117528.) Again referring to the similar Kentucky statute, we note that administratively, the same result has been achieved there: "We do require that the goods remain undisturbed between the dates of storage and transshipment. We do not permit 'selling' and delivery from the goods subject to this statute although there are those who have attempted to do so." (Ky. Department of Revenue letter dated 4 November 1969 to D. R. Holbrook.) We have not overlooked the language in G. S. 105-281 to the effect V. 41 33 that the pohcy of the State is to encourage the development -of the State as a distribution center. Nonetheless, we beheve that the more expHcit provisions of the act lead to the conclusion that encouragement at present extends to classification of property which is "in interstate commerce", not to such property whose interstate journey has come to an end. If another result had been intended, it could have been achieved by specifying, as Wisconsin has done, that goods in storage in their original package in commercial warehouses shall be considered "in transit". Wise. Stats. §70.111(10). Or perhaps the word "distribtuion" in Heu of "transshipment" would have removed the interstate commerce aspects of the statute. However, we are faced with a construction of the statute as enacted by the Legislature, not as it might have been written. Robert Morgan, Attorney General Myron C. Banks, Assistant Attorney General 3 September 1970 Subject: Requested by: Question: Taxation; Privilege License Tax; Branch or Chain Stores; Montgomery Ward Sales Agency; G. S. 105-98 Mr. Fred R. Harwell, Tax Collector City of Washington Whether a store operating within a city under the name of Montgomery Ward Sales Agency, which store advertises under the name of Montgomery Ward, uses the regular Montgomery Ward mail order catalogue for making sales, accepts installment and charge account payments for Montgomery Ward Company through which company purchases are financed, and which sells only Montgomery Ward V. 41 34 merchandise, qualifies as a "chain store" within the meaning of G. S. 105-98 so as to permit the levy by the city of a License tax for the operation of such store within the city under the authority granted in G. S. 105-98? Conclusion: A store operating within a city under the name of Montgomery Ward Sales Agency, which store advertises under the name of Montgomery Ward, uses the regular Montgomery Ward mail order catalogue for making sales, accepts installment and charge account payments for Montgomery Ward Company through which company purchases are financed, and which sells only Montgomery Ward merchandise, qualifies as a "chain store" within the meaning of G. S. 105-98 so as to permit the levy by the city of a license tax for the operation of such store within the city under the authority granted in G. S. 105-98. . G. S. 105-98 provides that while counties may not levy a Hcense tax on the business taxed under this section, "cities and towns may levy a Hcense tax not in excess of fifty dollars ($50.00) for each chain store located in such city or town." The term "chain store" as used in this section is defined to include stores operated under separate charters of incorporation if there is common ownership of a majority of stock in such companies, or a similarity of name of such companies, or if such companies have the benefit of group purchase of merchandise or of common management. This section further defines the term "chain store" to apply to any group of stores where a majority interest is owned by an individual or partnership. Furthermore, the subject of taxation under this section, "a branch or chain store operator", is defined as "every person, firm or corporation engaged in the business of operating or maintaining in this State, under the same general management, supervision, or V. 41 35 ownership, two or more stores . . . where goods or merchandise are sold or offered for sale, . . . who or which controls . . . the manner in which any such store or stores are operated, or the kinds, character, or brands of merchandise which are sold therein," These definitions would appear broad enough to include a store operating under the name "Montgomery Ward Sales Agency" which advertises under the name of "Montgomery Ward", uses the regular Montgomery Ward mail order catalogue for making sales, employs Montgomery Ward installment sale financing and sells only ' Montgomery Ward merchandise, and a city or town may levy, under the authority granted in G. S. 105-98 and within the amount limitation specified, a license tax on the operation of any such store within its corporate limits. Robert Morgan, Attorney General I. Beverly Lake, Jr. Assistant Attorney General 15 July 1970 Subject: Requested by: Questions: Courts; Clerk of Superior Court; Mental Examination; Authority to Order Physicians to Examine Allegedly Mentally 111 Person Honorable J. C. Taylor Clerk of Superior Court of Halifax County (1) Does G. S. 122-62 require the clerk of court to specify by name the two physicians required to examine the alleged mentally ill person? (2) Does G. S. 122-62 empower the clerk of court to order physicians in the county to perform the examination? /. 41 36 Conclusion: Article 7 or Chapter 122, G. S. 122-60 through G. S. 122-65.9, requires the clerk of court to act in a judicial capacity. G. S, 122-62 requires the clerk of court to name the two physicians who are to perform the examination of the alleged mentally ill person in the order for examination. This section clothes the clerk with the authority to order the physicians to perform the examination, and, if necessary, to enforce this order by citing for contempt. n a telephone conversation on June 29, 1970 the Honorable J. Z. Taylor, Clerk of Superior Court of HaUfax County, posed the wo questions as stated above. ^.rticle 7 of Chapter 122 is titled "Judicial Hospitalization." This irticle is comprised of § § 122-60 through 122-65.9. The article ets out in detail the procedure to be followed in order to hospitalize I mentally ill person against his will. G. S. 122-63 requires the :lerk of court to hold a hearing on the question of the need for lospitalization, receive evidence, and make findings of fact and :onclusions of law based there on. The entire article clearly Tianifests the intention that the clerk of court shall act in a judicial capacity in proceedings brought pursuant to this article. See Bailey '. McGill, 247 N. C. 286, at p. 291. J. S. 122-62, in pertinent part, provides as follows: "when an iffidavit and request for examination of an alleged mentally ill person. . .has been made. . .(the clerk) shall direct two qualified physicians. . . to examine the alleged mentally ill person." fhe verb "direct" is defined by Black's Law Dictionay, Fourth edition, as meaning "to order; to command." It is obvious that he legislature intended the word to have at least this force and effect for it would be a vain thing for the statute to require the :lerk to perform a judicial function but not clothe him with the luthority to issue orders necessary to its accomplishment. J. S. 122-62 gives the clerk this needed authority. It imposes a V. 41 37 duty upon physicians to serve as witnesses in such proceedings Bailey v. McGill, supra, at p. 292. If a physician refuses to perform this duty the clerk of court can enforce his order by the use oj his contempt powers. As a practical matter the clerk of court should arrange in advance for the services of two physicians willing to perform this duty and thus avoid the necessity of a direct order requiring the service. However, in the event that such arrangements cannot be made, the clerk clearly has the authority to order physicians to make the examination. Robert Morgan, Attorney General • ' '^ ; ' L. Phillip Covington, Staff Attorney : 14 September 1970 Subject: : Requested by: Question: Conclusion: Courts, Solicitors; Setting Cases for Trial on Criminal Docket Mr. Archie Taylor, Solicitor 4th Solicitorial District Does the presiding judge or the solicitoD have the duty and authority to place on the criminal calendar the cases to be called for trial? The solicitor has the authority and discretion to decide which cases shall be placed on the trial calendar. The Solicitor is a constitutional officer. Article IV, Section 16, North Carolina Constitution, and responsible for the prosecution of all criminal actions within the courts of his district (G. S. 7A-61), The solicitor, by virtue of G. S. 7A-49.3, must file with the clerk of superior court, one week before the session, a calendar of the V^. 41 38 :ases he intends to call for trial at that session. It is clear from :he language of G. S. 7A-49.3 that what cases shall be placed upon thr trial calendar is within the authority of the solicitor. \s stated in State v. Furmage, 250 N. C. at 622, a soHcitor, as 1 public officer and as an officer of the court, is vested with mportant discretionary powers. It is his duty to present all available evidence and to prosecute persons charged with crimes. If prior to Drosecution he finds the evidence insufficient to support conviction, le may enter a nolle prosequi or nolle prosequi with leave. Vlanifestly, a solicitor must determine which cases should be :alendared for trial since he could not prosecute unless the evidence vas available, the witnesses, defendant and attorneys were available, md other factors as may be necessary to go forward with the trial. Robert Morgan, Attorney General James R. Bullock, Deputy Attorney General 14 September 1970 )ubject: Motor Vehicles; Liens; Wrecker Included in Mechanic's Lien. Fees Not ilequested by: Mr. R. B. Parker, Assistant Director License and Theft Division Department of Motor Vehicles Question: G. S. 44A-2 gives a preferred possessory hen on personal property to "any person who alters, repairs, services, treats or improves personal property in the ordinary couse of his business pursuant to an express or implied contract with an owner or legal possessor of the personal property . . .". By virtue of this statute, does an individual who tows a motor vehicle to a place of storage acquire a hen upon such motor vehicle V. 41 39 for the wrecker fee involved? Conclusion: G. S. 44A-2 does not create a lien in favor of an individual who tows a motor vehicle to a place of storage. Clearly the vehicle is not "altered", "repaired" or "improved". Webster's Seventh New Collegiate Dictionary (1969) equates the word "treat" with "improve" or "alter". Thus, it does not appear that this term would include the mere towing of a motor vehicle. The only remaining term employed by the statute is "services". In Humble Oil and Refining v. State, 158 S. W. 2d 336, (Texas, 1942), with respect to the word "service", the Court said: "The term as apphed to the service station business has acquired such a general and commonly understood meaning as to require the courts to take judicial notice of it." In this common usage, the term "service" when apphed to a motoi vehicle is considered to require that some work be performed or the vehicle or its component parts that has a beneficial effect or its maintenance or operation. The mechanices lien grows out of the old common law artisans lien In Lee, Liens on Personal Property, 44 N. C. L. R. 322, 327, il is noted that such liens did not arise unless the work was done at the request of the owner or one in privity with him. Very ofter in situations described in the question, there is no request by the owner or one in privity with him that the towing be performed The Attorney General understands the plight of garage and wreckei operators in the disposition of wrecked vehicles but upon the state of the existing law is constrained to reach the conclusion expressed above. ' Robert Morgan, Attorney General ' ~ T. Buie Costen, | Assistant Attorney General ' . 41 7 July 1970 abject: . equested by: Miestion: 'Diiclusion: S. 163-32 provides: 40 Public Officers & Employees; Salaries; County Elections Board Executive Secretary; Authority of County Commissioners in Budget Appropriations. Mr. H. Clyde Ballard, Jr., Chairman Henderson County Board of Elections When a county board of elections has filed its budget statement pursuant to G. S. 153-117, and recommended a certain salary for its executive secretary, may the board of county commissioners, in making its appropriations under G. S. 153-120, appropriate a lesser amount than recommended by the board of elections? Yes. Although G. S. 163-32 and G. S. 163-67.1 authorize the county board of elections to fix the salary of the executive secretary, such salary must be within the budget appropriations as fixed by the county commissioners in the budget resolution. "In all counties the board of elections shall pay its clerk, assistant clerks, and other employees such compensation as it shall fix within budget appropriations. Counties which adopt full-time and permanent registration shall have authority to pay executive secretaries and special registration commissioners whatever compensation they may fix within budget appropriations." S. 163-67.1 provides: V. 41 41 "The county boards of elections, whether operating under the provisions of G. S. 163-67(a) or (b) shall have authority to employ an executive secretary who shall be paid such compensation as recommended by the county board of elections and approved by the respective boards of county commissioners." G. S. 153-120 provides: "The appropriations shall be made in such sums as the board may deem sufficient and proper, whether greater or less then the recommendations of the budget estimate, and the appropriation or appropriations for each department, institution, or agency shall be made in such detail as the board deems advisable: . Robert Morgan, Attorney General James F. Bullock, Deputy Attorney General 21 July 1970 Subject: Requested by: Question : is> Taxation; Ad Valorem; Exemptioni Leased Tangible Personal Property Owne by Bank; G. S. 105-228.13 Mr. Thomas C. Posey Lenoir County Tax Supervisor Whether tangible personal property owne by a bank and leased by the bank to mortgage company is exempt froi personal property ad valorem tax und( G. S. 105-228.13? '. 41 42 onclusion: Tangible personal property owned by a bank and leased by the bank to a mortgage company is exempt from personal property ad valorem tax under G. S. 105-228.13 notwithstanding the use of such property by the mortgage company. jisuant to the provisions of G. S. 105-304, the general rule is that jisonal property shall be hsted for taxation in the name of the ivner thereof, and no exception to this rule is made with respect leased property. Although leased property may be used [clusively by the lessee, such property should still be listed and xed in accordance with its ownership under this general rule, unless is exempted from tax under other provision of the law. S. 105-304 provides in part as follows: "In general, personal property shall be listed in the name of the owner thereof on the day as of which property is assessed; and it shall be the duty of the owner to list the same." Mle there is no specific exemption from taxation of property vned by banks within the Machinery Act, G. S. 105-228.13 •Qvides that the excise tax, which is levied under G. S. 105-228.12 every bank located and doing business within this State, "shall in lieu of . . . taxes levied upon tangible personal property by 'cal taxing jurisdictions." Therefore, any tangible personal property hich is owned by any bank subject to such excise tax is not subject ) ad valorem personal properiy tax. Robert Morgan, Attorney General I. Beverly Lake, Jr.. Assistant Attorney General July 1970 III object: Taxation; Ad Valorem; Listing Property; Person in Whose Name Personal Property Should Be V. 41 43 Listed; Floor Plan Financing Arrangement; G, S 105-304 Requested by: Question: Conclusion: Mr, Bonner R. Lee Hyde County Accountant Whether personal property in the nature of farn machinery and in the possession of a local deale: in such machinery should be Used for taxatior in the name of such dealer when such property is in the dealer's possession under a floor plai financing arrangement whereby a bank o financing institution has made a loan or extendec ^ credit to such dealer through payment of th(.' manufacturfor each item of such machinery, sucl|||: loan to be secured by and repaid upon th dealer's sale of said machinery? Personal property in the nature of farn machinery and in the possession of a local deale in such machinery should be listed for taxatioii in the name of such dealer when such propert is in the dealer's possession under a floor plai financing arrangement whereby a bank financing institution has made a loan or extende( credit to such dealer through payment of th manufacturer for each item of such machiner and such loan is to be secured by and repaid upoi the dealer's sale of said machinery. li A transaction through which a local dealer takes possession of certai machinery for sale under a floor plan financing arrangement, unde which arrangement a bank or financing institution makes a loan o extends credit to such dealer through payment of the manufacture for such machinery and such loan is secured by and is to be repaii upon the dealer's sale of said machinery, would appear to be transaction which would fall within the provisions of subsection (a of G. S. 105-304 which reads as follows: "In general, personal property shall be listed in the name of the owner thereof on the day as of which 41 44 property is assessed; and it shall be the duty of the owner to hst the same. The owner of the equity of redemption in personal property subject to a chattel mortgage shall be considered the owner of the property; and the vendee of personal property under a conditional bill of sale, or under any other sale contract by virtue of which title to the property is retained in the vendor as security for the payment of the purchase price, shall be considered the owner of the property, provided he has possession of such property or the right to use the same," nee the local dealer has the possession of the property or the 'ht to use it under this financing arrangement, if not the legal l:le, such property should be hsted for taxation in the name of ! ch dealer. Robert Morgan, Attorney General I. Beverly Lake, Jr., Assistant Attorney General I July 1970 ibject: equested by: Liestion: Taxation; Inheritance Tax; Safety Deposit Box, Access to; Duty of Clerk of Court Honorable Sion H. Kelly Clerk of Superior Court of Lee County May a clerk of superior court appoint an officer or employee of a bank to represent him at the opening of a safety deposit box of a deceased person at the bank under G. S. 105-24? onclusion: A clerk of superior court may not properly appoint an officer or employee of a bank to act as his representative at the opening of a safety deposit box of a deceased person at the bank under G. S. 105-24. V. 41 45 G. S. 105-24 provides that every bank must require the presenc of "the clerk of the superior court of the county in which sue lock box is located" as a condition precedent to the opening o such a box by the executor, administrator or personal representativ of such deceased person. This statute then further provides a, follows: "It shall be the duty of the clerk of the superior court, or his representative, in the presence of an officer or representative of the safe deposit company, trust company, corporation, bank, . . . to make an inventory of the contents of any such lock box and to furnish a copy of such inventory to the Commissioner of Revenue, to the executor, administrator, personal representative, or cotenant of the decedent, and a copy to the safe deposit company, trust company, corporation, bank . . . having possession of such lock box". (Emphasis added.) It thus seems clear that this statute requires, upon the opening oj a safety deposit box, not only the presence of the clerk or hi representative but also the presence of an officer or representativt of the bank, and in view of the different duties, responsibilities and interests involved, as stipulated in this statute, it would seem U be within the meaning and purpose of this statute, and in the bes interest of the Clerk of Court, that the representative of the Clerlil and the representative of the bank should not be the same persoi or a person having more than one duty or interest to represent Robert Morgan, Attorney General I. Beverly Lake, Jr., Assistant Attorney General 24 July 1970 • " Subject: State Departments, Institutions & Agencies Medical Care Commission; Authority to Classify \ 41 46 Hospital Emergency Services. [quested by: Mr. William F. Henderson, Executive Secretary The North Carolina Medical Care Commission (lestion: Does the North Carolina Medical Care Commission have authority to classify liospital emergency services in accordance with types or classifications of emergency service available, and to require hospitals to maintain the standards of emergency care service of the type or classification which such hospital selects for itself? ()nclusion: Yes, the North Carolina Medical Care Commission does have authority to classify hospital emergency services in accordance with types or classifications of emergency service available, and to require hospitals to maintain the standards of emergency care service of the type or classification which such hospital selects for itself. lie North Carolina Medical Care Commission is considering cissification and defining hospital emergency services according to te types and quality of service which may be available, perhaps i five types such as: Type I - Comprehensive Emergency Center Type II - General Emergency Center Type III - Intermediate Emergency Department Type IV - Limited Service Emergency Unit Type V - First Aid Emergency Unit hch type would be fully described with respect to the facilities, affmg, and scope of care required with respect to each type of Jrvice. Once the classifications were adopted, each hospital would 1 expected to designate the type of emergency services it proposed 1 render. The furnishing of the type of emergency service so elected would be tied in with the licensing of the hospital under ie Hospital Licensing Act, and thereafter each hospital would be I V. 41 ' 47- required to furnish and maintain the standards of tlie type ( emergency service which it elected to render. The question is whether the North Carolina Medical Cai Commission has authority to do this under the provisions of th Hospital Licensing Act. G. S. 131-126.2 provides as follows: "§ 131-126.2. Purpose. - The purpose of this article is to provide for the development, establishment and enforcement of basic standards: "(1) For the care and treatment of individuals in hospitals and "(2) For the construction, maintenance and operation of such hospitals, which, in the light of existing knowledge, will ensure . , - , safe and adequate treatment of such individuals in hospitals, provided, that nothing in this article shall be construed as repealing any of the provisions of article 27 of chapter 130 of the General . Statutes of North Carohna." G. S. 131-126.3 provides in part as follows: : "After July 1st 1947, no person or governmental unit, acting severally or jointly with any other person or governmental unit shall establish, conduct or maintain a hospital in this State without a Ucense." The above statutory provisions constitute an adequate grant c authority from the General Assembly for the North Carohna Medic? Care Commission to carry out such a program with respect t hospital emergency services as is described above. Robert Morgan, Attorney General . , / Harry W. McGalliard, Deputy Attorney General 41 48 August 1970 .ibject: equested by: uestion : nswer: State Departments, Institutions & Agencies; Purchase and Contracts; Necessity of Public Bidding on Contract for Purchase of Computers. Mr. R. D. McMillan, Jr. State Purchasing Officer Purchase and Contract Division Department of Administration Can the Purchase and Contract Division of the Department of Administration purchase a computer for a State agency or State institution, which is now being leased by that agency or institution, without soliciting sealed bids as prescribed by G. S. 143-52? No. The Purchase and Contract Division cannot dispense with the competitive bidding requirements for the purchase of equipment and purchase a computer now being leased by the State agency or institution in the absence of showing that competition would be impossible or unavailable. (he facts as indicated by Mr. R. D. McMillan, Jr. are that several late agencies and institutions are presently leasing 1130 IBM )mputers. IBM has offered to sell these computers to several of le State institutions now leasing them. Officials at the State stitutions consider the offers made by IBM a very good purchase nee and have requested the State Purchasing Officer to purchase le computers without competitive bidding. y weight of authority, a statutory requirement for competitive bids )nstitutes a jurisdictional prerequisite to the exercise of the power r a private corporation to enter into a contract. Teer v. State ighway Commission, 265 N. C. 1 ; Teer v. State Highway ommission, 4 N. C. App. 126. G. S. 143-49 provides that the irector shall have the power and authority and it shall be his duty, ibject to the provisions of this article, to canvass all sources of V. 41 49 supply and to contract for the purchase of all supplies, materials and equipment required by State government, or any of its departments, institutions or agencies under competitive bidding in the manner hereinafter provided for. G. S. 143-52 provides that sealed bids shall be solicited and except as otherwise provided by this article, all contracts for the purchase of supplies, materials or equipment made under the provisions of this article shall whenever, possible be based on competitive bids and shall be awarded to the lowest responsible bidder. | Statutes requiring competitive bidding should not be given suchli construction as to defeat their purpose or impede usual or regular! progress of public business and public improvements, and theiri requirements may be dispensed with when such advertisement will not result in competitive bidding for the work. 43 Am. Jur., Public^ Works and Contracts, sec. 31. The purpose of statutes requiringi competitive bidding is to prevent favoritism, corruption, fraud and, imposition in the awarding of public contracts by giving notice to respective bidders and thus assuring competition which in turn; guarantees fair play and reasonable prices in contracts involving expenditures of substantial amounts of public money. It has application to contracts for the purchase of materials and supplies where the bidders are free to name the price for which they are. wilhng to furnish the thing. It does not apply where the competition would be impossible or unavailable or as to a monopoly. Mullen ' V. Loiiisburg, 225 N. C. 53 at page 59; 43 Am. Jur., Public Works and Contracts, sees. 26 and 3 1 . The Legislature recognizes this exception as it provided in G. S. 136-52 that all contracts for the purchase of equipment shall whenever possible be based upon competitive bids. However, a governmental agency attempting to come within anj exception to the competitive bidding requirements has the burden of showing that it comes within the exception. Raynor v. Commissioners of Louisburg, 220 N. C. 348. The facts as indicated here do not show the absence of competition in the sale of the computers. Therefore, I am of the opinion that the competitive bidding requirements of G. S. 143-52 cannot be dispensed with. Robert Morgan, Attorney General Eugene A. Smith, Assistant Attorney General r. 41 August 1970 ubject: equested by: 'uestion: lonclusion: 50 ABC Act; Beer and Wine; Permit Revocation Hearings; Question of Suitability of Person or Place to Hold a Permit Mr. D. L. Pickard, Assistant Director-Hearing Officer, State Board of Alcoholic Control In a hearing into the suspension or revocation of a wine or malt beverage permit where one of the violations charged is the unsuitabihty of the permit holder to have a permit pursuant to the provisons of G. S. 18-136 and where there is evidence that that permit holder also holds a wine or malt beverage permit for another location, is it proper to admit evidence of a history of violations at premises other than those for which the permit may be suspended or revoked? It is proper in a hearing into the suspension or revocation of a wine or malt beverage permit where one of the violations charged is the unsuitabihty of the permit holder to have a permit pursuant to the provisions of G. S. 18-136 and where there is evidence that that permit holder also holds a wine or malt beverage permit for another location to admit evidence of a history of violations at premises other than those for which the permit may be suspended or revoked. S. 18-136 provides that the State Board of Alcoholic Control nay refuse to issue a new permit or may suspend or revoke any )ermit issued by it if in the discretion of the Board "it is of the )pinion that the apphcant or permittee is not a suitable person to V. 41 51 hold such permit or that the place occupied by the apphcant oi! permittee is not a suitable place." Among those charges of violations of the ABC laws and the regulations of the State Board of Alcoholic Control, charges of unsuitable person or place are very ofteni' included. The inquiry is vi^hether it would be competent to place;| in a record a history of violations of some other location where the apphcant or permittee has held or currently holds other beei| or wine permits. We are of the opinion that the suitability of the apphcant to holdt a permit at the subject premises would logically extend to his! suitability to hold any wine or malt beverage permit and while such: other permit if it still is valid could not be revoked or suspendedij pursuant to a hearing dealing with some other premises, the evidenceii that the applicant or permittee was unsuitable to run some other! premises would also have some logical and legal relevancy to hisi suitability to run the subject premises. Any history of violations on other premises which would be concerned with the suitabihty of those other premises, however, such as violation of the health laws or other matters concerned strictly with those premises would not be relevant to a hearing on the subject: premises, however, and evidence as to violations of that nature should be excluded. Robert Morgan, Attorney General (Mrs.) Christine Y. Denson, ;. ': Staff Attorney 15 September 1970 Subject: Requested by: Licenses & Licensing; Hearing Aid Dealersj and Fitters Board; Authority to Withhold! License Under Grandfather Clause Miss Frances S. Dickinson, Secretary-Treasurer North Carohna State Hearing Aid Dealers and Fitters Board k 41 52 Questions: Conclusions: (1) May the North Carolina State Hearing Aid Dealers and Fitters Board properly withhold a Ucense from a person applying under the grandfather clause (G. S. 93D-7) on the grounds that the person does not have the proper machinery or the necessary certification for it in his place of business? (2) May the Board withhold a license apphed for under the provisions of G. S. 93D-8 for failure of the applicant to have such machinery? (1) The North CaroHna State Hearing Aid Dealers and Fitters Board has no legal authority to withhold a license from a person applying under the grandfather clause (G. S. 93D-7) on the grounds that the person does not have the proper machinery or the necessary certification for it in liis place of business. (2) The North Carolina State Hearing Aid Dealers and Fitters Board has no legal authority to withhold a hcense applied for under the provisions of G. S. 93D-8 for failure of the apphcant to have such machinery. With regard to persons applying for a hearing aid dealers and fitters license under the provisions of Chapter 93D of the General Statutes, an inquiry was made of this Office as to whether the Board's rule requiring the installation of an audiometer on the hcensed premises jand the submission of a certificate that the audiometer is in good iworking order and the submission of a "calibration slip" is a proper requirement before a permit is issued under the grandfather clause (G S. 93D-7). G. S. 93D-7 provides: 93D-7. Persons engaged in the fitting and selling V. 41 53 ; of hearing aids before the passage of this chapter. - Every person engaged in fitting and selling hearing aids upon the effective date of this chapter shall be issued a license by the Board, upon presentation of evidence satisfactory to the Board that he is a person of good moral character, is twenty-one years of age or older, and has been engaged in fitting and selhng hearing aids in this State for at least two years prior to the effective date of this chapter, provided such person pays a fee j of fifty ($50.00) dollars for the issuance of a Hcense by the Board; and provided he makes application to the Board for such licnese within sixty days after the effective date of this chapter. Upon payment of an j additional five dollars ($5.00), a hcense certificate shall | be issued." , , Clearly the only requirements which the Board may properly makei for issuance of a hcense are that the person be of good morali character, be at least 21, have been engaged in fitting and seUingl hearing aids in North Carohna for at least two years prior to the effective date of the section and have paid the license fee of $50.00. The application must be made to the Board for a hcense withini sixty days of the effective date, but since the Board was late intii being organized, this sixty-day hmitation has no practical effect. Thefj statute provides that the person so qualifying ^'sJiall be issued a; license by the Board" {emphasis added) and the Board clearly has no discretion in this matter. Since requirement of the proper i* machinery is not one of the statutory qualifications, it may not properly be a ground for refusal to issue the permit. I The same arguments would apply in case of a person not qualifying^ for a hcense under the grandfather clause but making apphcation under the provisions of G. S. 93D-5 with the further qualification of examination in G. S. 93D-8. CompHance with the rules of the Board are not made a prerequisite for issuance and so any requirements regarding the audiometer would be inapplicable. [ Of course, the Board has rule-making and regulatory authority (G. S. 93D-3) and may suspend or revoke a hcense for failure to comply with those rules (G. S. 93D-13). V. 41 54 13 September 1970 Subject: Requested by: Questions: Robert Morgan, Attorney General (Mrs.) Christine Y. Denson Staff Attorney Administration of Estates; Ancillary Administration; Money Held in Trust in North CaroHna Banks for Deceased Beneficiary; Release to Trustee Honorable H. L. Lewis, Jr. Clerk of Superior Court Pitt County (1) May the clerk of superior court appoint an ancillary administrator in the case of an out-of-state resident who had funds held in trust in a North Carolina bank? (2) Is complete administration of the estate concerning North Carolina assets necessary in North Carolina if New York has already probated the estate as to assets located there? (3) What is the authority or power of the clerk or bank regarding the funds held by the bank for the decedent in North Carolina? Conclusions: (1) The clerk of superior court has power to appoint an ancillary administrator in the case of an out-of-state resident who had funds held in trust in a North Carolina bank. (2) Complete administration of the estate V. 41 ' 55 concerning North Carolina assets is not necessary if New York has already probated the estate as to assets located there. (3) The clerk may approve the handings over of funds to the ancillary administrator j and the bank should pay such funds, | deducting any intangibles tax v^hich the bank has paid on that account, to the' ancillary administratur. It would be the ; responsibility of the administrator to see that any inheritance or federal estate taxes!; are paid. j 1 The inquiry of August 25 indicates that money is held in a local \ bank in North Carolina in trust in the name of X for Y who is 5 now deceased. The facts indicate that Y was a New York resident! at her death and that probate has at least commenced and perhaps | been concluded in the State of New York on Y's estate. The J question is whether the money should be released to the trustee, X, who is making claim to the funds or whether an ancillary,; administrator should be appointed in this State. \ i The inquiry does not indicate the nature of the trust agreement! which X and Y or some other person might have completed with] the bank and so we are unable to determine definitively whether X might have a valid claim to the funds at this point or whether they should go to Y's estate. Assuming, however, that the agreement would provide that the funds would go to Y's estate, this opinion answers the remaining questions regarding the duties of the clerk I and the bank. We emphasize that the assumption that the funds I go into Y's estate is a critical assumption and if the trust agreement | would indicate to the contrary, which would be a matter for the ' bank to decide, then the points made in this opinion would not be valid for these particular funds. It is clear that the clerk of superior court in North Carolina has jurisdiction of the estate. Even if the deceased was a New York resident, G. S. 28-1(3) provides that the clerk will have power to appoint an administrator in the case where V. 41 56 "the decedent, not being domiciled in this State, died out of the State, leaving assets in the county of such clerk, or assets of such decedent thereafter come into the county of such clerk." See also In Re Will of Bmuff, 247 N. C. 92, 100 S. E. 2d, 254 (1957). The clerk therefore has the authority to appoint an ancillary administrator in this estate or to recognize the executor of the estate in New York providing the requirements regarding appointment of a local process agent are complied with. Pursuant to the provisions of G. S. 31-27, the will of the deceased, if one has been probated in the State of New York, may be accepted by the clerk for probate in this State when the requirements of G. S. 31-27 are fully met. Any intangibles taxes which may have become due on the bank account of the deceased have presumably been paid by the bank as they became due and would be a proper deduction against the account before such sums are turned over to the ancillary administrator. In North Carolina, of course, the administrator would be responsible for payment of such inheritance taxes as might be due on the estate. Robert Morgan, Attorney General (Mrs.) Christine Y. Denson, Staff Attorney 12 August 1970 Subject: Taxation; Ad Valorem; Exemptions; Farm Produce; Original Producer; G. S. 105-297(12) Requested by: Mr. Walter J. Cashwell, Jr. Scotland County Attorney V. 41 57 Question: Is seed company an "original producer" under agreement with farmers to produce seed wheat ' and barley which, if acceptable, will be bought by seed company, so that its inventory of seed thus obtained will be exempt from ad valorem taxation under G. S. 105-297(12). Conclusion: Seed company is not "original producer" under agreement with farmers to produce seed wheat and barley which, if acceptable, will be bought by seed company and its inventory thus obtained will not be exempt from ad valorem taxation under G. S. 105-297(12). A seed company obtains seed wheat and barley from farmers, pursuant to the following agreement: ''SEED COMPANY WILL: 1. Furnish planting seed at the rate of per acre for acres. 2. Pay certification fees. , ''" 3. Pay 15 cents premium per bushel • for grain meeting certification standards, less dockage, delivered to its plant. 4. Price per bushel is for grain at 13.5% moisture or lower; standard wheat discounts will be applied to grain above 13.5% moisture. GROWER WILL: 1. Pick up planting seed at Seed Company warehouse in Laurinburg. 2. Exercise due care to avoid mixtures by thoroughly cleaning grain drill, combine, and trucks or trailers used for hauhng seed crop. 3. Do necessary roguing for certification. 4. Spray fields with 2,4-D to control weeds. 5. Repay planting seed at the rate of V. 41 58 1 1/4 bushels of raw seed for each bushel of planting seed received. 6. Sell the entire production of this crop to Seed Company. 7. Select date for settlement of price from date of dehvery to 30 days later, using either quoted local market or the grain price published in the Raleigh News and Observer, less freight to quoted market PROVISO: If the crop does not pass certification, seed may be disposed of as the grov^er wishes. If failure to pass certification is clearly due to negligence on the part of the grower, Seed Company will be reimbursed for planting seed furnished at the rate of per bushel. If failure to pass certification results from any cause not attributable to negligence on the part of the grower, no compensation for planting seed will be due Seed Company." After the seed has been produced, and after it has been sold to the seed company, is it then exempt from ad valorem taxation under G. S. 105-297(12)? G. S. 105-297(12) provides an exemption for: "All cotton or other farm produce owned by the original producer, or held by the original producer in any public warehouse and represented by warehouse receipts, or held by the original producer for any cooperative marketing or growers association, shall be exempt from taxation for the year following the year in which grown, but not for any year thereafter." G. S. 105-297(12) Thus it is necessary to determine whether the seed company is the "original producer". If it is, and either (1) owns the seed or (2) holds it in a pubHc warehouse, as evidenced by warehouse receipts or (3) holds it for a cooperative marketing or growers association. V. 41 59 then such seed will be exempt. If it is not the "original producer", then the exemption is unavailable. Under the agreement, the farmer either "repays" the planting seed, at the rate of 1 1/4 bushels for every bushel he received to plant, or, if the crop is not sold to the seed company due to negligence in the growing of it, he pays the seed company at a specified rate per bushel. In addition, the agreement clearly provides that only if the crop meets certain standards must he ^^sell the entire production of this crop to seed company. " If it fails to meet these standards, "seed may be disposed of as the grower wishes." In effect, the farmer buys the seed from the seed company, and sells the crop produced therefrom to the seed company, and no title, or any other choate interest can be said to be in the seed company until that sale takes place. The seed company would, it seems to us, stand in the same relation to the production of the crop as any other purchaser of farm commodities. That is, it has not "produced" the crop except in the sense that the crop was produced by the farmer for sale, and he in fact sold it, to the seed company. "Producer" is commonly used to denote the person who raises agricultural products and puts them in condition for the market. Tennessee Burley Tobacco Growers Association v. Commodity Credit Corp. (C. A. Tenn.) 350 F. 2d 34, 41. See also Parks v. Federal Crop Ins. Corp. (C. A. Ind.) 416 F 2d 833, 837, where it was held that although farmers made contracts with an agricultural association whereby the association would furnish farmers with seed, a man to supervise planting, and labor, and also agreed to compensate the farmers at the rate of $100 per acre plus a premium of $1.25 per bushel in excess of 20 bushels of seed corn per acre, the farmers themselves were the "producers". Similarly, we conclude that the farmers producing the crop, not the seed company, were the "original producers." The exemption provided in G. S. 105-297(12) is not available to the seed company. ' ' ' Robert Morgan, Attorney General Myron C. Banks, Assistant Attorney General V. 41 26 August 1970 Subject: Requested by: Questions: 60 Business & Commerce; Professional Corporation Act; Applicability to Domestic and Foreign Corporations Mr. Joseph G. Maddrey, Corporations Attorney Office of Secretary of State 1 . Can one or more persons who render professional services as defined in G. S. 55B-2(6) incorporate under Chapter 55 (Business Corporation Act), or is it mandatory that they incorporate under Chapter 55B (Professional Corporation Act)? 2. In light of G. S. 89-13, as amended, would all corporations which were incorporated prior to June 5, 1969, and engaging in the practice of engineering or land surveying, automatically come within the provisions of Chapter 55B on January 1, 1970, without complying with G. S. 55B-15? 3. Does G. S. 89-13 make it mandatory for corporations described in Question 2 to file an amendment under G. S. 55B-15? 4. Would one of the corporations described in Question 2 performing a corporate action, i.e. , selling corporate stock, be governed by the provisions of Chapter 55B in view of G. S. 89-13? 5. Would all corporations which were V. 41 ^ 61 permitted by law prior to June 5, 1969, to render professional services as defined in G. S. 55B-2(6) automatically come under the provisions of Chapter 5 5B on January 1, 1970, or would they still maintain the option to do so by choice, i.e., amendment to its charter? 6. If an individual, firm or partnership located in North Carolina and ' ' performing professional services as defined in G. S. 55B-2(6) should incorporate under the Business Corporation Act of another state, ^ ' could it then domesticate in North CaroHna under Chapter 55 or must ' ~ it domesticate under the provisions of Chapter 55B? 7. If the corporation described in Question 6 is allowed to domesticate in North Carolina under Chapter 55, • " is it required that the individuals within the corporation performing professional services as defined in f G. S. 55B-2(6) be licensed by the appropriate Hcensing board in North Carolina? '~ 8. Can a foreign corporation performing services as defined in G. S. 55B-2(6) but incorporated under its state business corporation ' .- ' act, domesticate in North Carolina ;' under our Business Corporation Act, "~ ' '-' or must it domesticate under ' • Chapter 55B? CONCLUSIONS: 1. G. S. 55B-3 provides: "The V. 41 62 Business Corporation Act shall be applicable to such professional corporations, including their organization, and professional corporations shall enjoy the powers and privileges and shall be subject to the duties, restrictions and liabihties of other corporations, except insofar as the same may be Hmited or enlarged by this chapter. If any provision of this chapter conflicts with the provisions of the Business , Corporation Act, the provisions of this chapter shall prevail." G. S. 55-3(6) provides: "The provisions of this chapter shall apply to every corporation for profit, and, so far as appropriate, to every corporation not for profit having a capital stock, now existing or hereafter formed, and to the outstanding and future securities .--^ ,. thereof, unless the corporation is expressly excepted from the . ' operation hereof or unless there is other specific statutory provision particularly applicable to the corporation or inconsistent with some provisions of this chapter, in which case that other provision prevails." {Emphasis added.) Chapter 55 B makes requirements of the incorporators in addition to those contained in Chapter 55. See _ - " G. S, 55B-4 which provides, inter alia, that at least one incorporator must be a licensee, that all shares of stock must be owned by a licensee or licensees, that at least one director V. 41 63 and one officer shall be a licensee and that the articles of incorporation ^ ' - ' designate the personal services to be performed by the corporation. • See also G, S. 55B-13 which gives greater protection to the pubhc than ' does Chapter 55 with respect to the activities of a professional " ' corporation. From the foregoing •; s provisions of Chapter 55B, it is ' ' clear that the legislative intent is that Chapter 55 B is the sole manner in which a person or persons performing a professional service | could incorporate. "The intent of the legislature controls the interpretation of a statute." 7 Strong, N. C. Index 2d, Statutes, sec. 5. 2. G. S. 89-13 provides: "A corporation or partnership may engage in the practice of engineering or land surveying in this State: Provided, however, the person or persons connected with such corporation or partnership in charge of the designing or supervision which ^^ ; constitutes such practice is or are ' '^ registered as herein required of professional engineers and land surveyors. The same exemptions shall apply to corporations and partnerships as apply to individuals undtT this cha.pteT; provided further, ' that all corporations hereunder shall ' be subject to the provisions of chapter 55B of the General Statutes i"' of North Carolina." (Emphasis added.) \/. 41 64 The underlined portion was enacted in 1969 as Section 28 of Chapter 718 of the Session Laws (The Professional Corporation Act). G. S. 55B-15 provides: ''This chapter shall not apply to any corporation which prior to June 5, 1969, was permitted by law to render professional services as herein defined; provided, however, any such corporation rendering 'professional service' as defined in §55B-2(6) may be brought within the provisions of this chapter by the filing of an amendment to its articles of incorporation declaring that its shareholders have elected to bring the corporation within the provisions of this chapter and to make the same conform to all of the provisions of this chapter." {Emphasis added.) Based on these two statues, a corporation engaged in the practice of engineering or land surveying prior to June 5, 1969, does not automatically come under the provisions of Chapter 55B. However, ' \ such a corporation may elect to come under Chapter 55B by virtue of the proviso in G. S. 55B-15. 3. No. While G. S. 89-13, as amended by Chapter 718 of the 1969 Session Laws, and quoted above, appears at first to be in conflict with G. S. 55B-15, also quoted above, it is possible to give both statutes effect by applying the proviso to the second sentence of G. S. 89-13 to V. 41 65 only those corporations created on or after June 5, 1969. Statutes , , ' ' with conflicting provisions are construed by the courts to give! effect to legislative intent. See 7 Strong, N. C. Index 2d, Statutes,! Section 5. ,4. As to corporations engaged in the practicing of engineering or land^: , ! surveying prior to June 5, 1969, j and not electing to come under Chapter 55B, by virtue of the , , provisions of G. S. 55B-15, all| corporate action will be governed by| . " the provisions of Chapter 55. 5. Under the provisions of: G. S. 55B-15, quoted above, corporations engaged in those;, professions' services listed in| G. S. 55B-2(6)before June5, 1969, ' do not automatically come under the provisions of Chapter 55B. 6. The corporation must domesticate under Chapter 55 B. If one or more| ? . individuals, residents of North Carolina, and practicing a "professional service" as defined in| .^ G. S. 55B-2(6), were to incorporate in another state and then attempt to secure permission to practice in North Carohna under the provisions ' ^ ' of Chapter 55, this would constitute a violation of the spirit of the i Professional Corporation Act, and . . such permission should not be granted. - , 7. , In view of the answer to Question 66 6, an answer to Question 7 is not required. The corporation must domesticate under Chapter 55B. While it is true that the Professional Corporation Act, Chapter 55B, makes no provision for the domestication in North Carolina of a foreign corporation, nowhere in the Act is there any indication that the General Assembly intended to give foreign professional corporations the right to practice in North Carolina without complying with the Professional Corporation Act. To permit foreign professional corporations to practice in North Carohna without complying with the Professional Corporation Act. To permit foreign professional corporations to practice in North Carolina without complying with the Professional Corporation Act would give such foreign professional corporation an advantage over domestic professional corporations which must comply with the Professional Corporation Act. NOTE: With respect to Question 8, this opinion modifies, in part, our opinion of January 29, 1970 to Mr. Joseph G. Maddrey, Corporation Attorney, Office of Secretary of State. The January 29 opinion had expressed the opinion that a foreign professional corporation, in good standing in its state of incorporation, could domesticate in North Carolina under Chapter 55. V. 41 67 Robert Morgan, Attorney General Millard R. Rich, Jr. Assistant Attorney General 30 September 1970 Subject: Requested by: Question: Criminal Law & Procedure; Pre-sentence Diagnostic Study; Appealability of Commitment for; G. S. 148-1 2(b). Mr. Daniel T. Perry Assistant Solicitor Ninth Sohcitorial District Does a defendant who has been convicted [|j in a criminal action have the right to appeal i such conviction where, before passing | sentence, the trial court orders defendant!; to submit to a pre-sentence diagnostic study by the Department of Correction i pursuant to G. S. 148-1 2(b)? An order by the trial court subjecting a convicted defendant to confinement in the custody of the Department of Correction for a pre-sentence diagnostic study pursuant to G. S. 148-1 2(b) is an order in the nature of a final judgment from which the defendant may appeal. An inquiry from the Honorable Daniel T. Perry, Assistant Sohcitor of the Ninth Sohcitorial District, posed the above stated question. G. S. 148-1 2(b) in pertinent part provides as follows: - > "Within the hmits of its capacity, . . .a . - diagnostic center may, at the request of any sentencing court, make a pre-sentence diagnostic study of any person who has been convicted and Conclusion: V. 41 68 is before the court for sentence, and is subject to commitment to the Department, Where necessary for this purpose, the defendant may be received in the center for such period of study as the court may authorize, but may not be held there for more than 60 days unless the court grants an extension of time, which may be granted for an additional period not to exceed 30 days. The total time spent in the center shall not exceed 90 days or the maximum term of imprisonment authorized as punishment for the offense of which the person has been convicted if the maximum is less than 90 days. Time spent in the center for a diagnostic study shall be credited on any sentence of commitment imposed on the person studied. ..." (Emphasis added.) I The emphasized portion of this section clearly indicates that it was the intention of the Legislature that the time spent in pre-sentence diagnostic study be considered as at least a portion of the convicted defendant's sentence. Therefore, any order of the trial court invoking , this "sentence" must be considered a final judgment for the purposes ' of that portion of the sentence, and is therefore appealable. Under this interpretation, appeal from the conviction is immediately . available upon entry of the judgment ordering pre-sentence diagnosis. Therefore, the constitutionality of the statute, G. S. 148-1 2(b), could not be successfully challenged on the ground that it denies defendant his right to appeal. Support for this position is found in the opinion of our Court in State V. Griffin, 246 N. C. 680. The question there considered was whether defendant could appeal a conviction where the trial court had continued prayer for judgment upon the imposition of certain conditions, a situation very similar to the question here involved. At page 682 the Supreme Court stated: "After a conviction. . .the court has power: (1) to pronounce judgment and place it into immediate execution; (2) to pronounce judgment and suspend or stay its execution; (3) V. 41 69 to continue prayer for judgment. When the judgment is pronounced and placed into . execution the defendant has the right of appeal. Likewise, when the judgment is pronounced and its execution is stayed or suspended, such disposition of the cause does not serve to delay or defeat the defendant's right of appeal (citing authority) ... It is sometimes found expedient, if not necessary to continue a prayer for judgment and when no conditions are imposed, (the ii courts). . .may exercise this power with or without the defendant's consent. (Citing cases). . . .(But) when the court enters an order continuing the prayer for judgment and at the same time imposes conditions amounting to punishment (fine or imprisonment) the order is in the nature of a final judgment, from which the defendant may appeal. " It is the opinion of this office that G. S. 148-1 2(b) in effect provides by statute an additional reason for which a sentencing court might desire to continue prayer for judgment, i.e., for the purpose of subjecting defendant to a pre-sentence diagnostic study so as to better tailor the judgment to his individual needs. If the defendant consents to this condition (deprivation of liberty during the time of the study) then no appeal is available nor is there any reason for one. However, the condition imposed, if without defendant's consent, must be considered as one involving involuntary incarceration. Therefore, the order entered by the court would be an order "in the nature of a final judgment" upon which defendant could prosecut an appeal of the conviction. , Robert Morgan, Attorney General ': L. Phihp Covington, Staff Attorney |V. 41 ! 23 September 1970 Subject: I Requested by: Questions: Conclusions: 70 Taxation; Income Taxes; Gross Income; Deductions; Alimony; Separate Maintenance; Periodic Payments; G. S. 105-141.2; G. S. 105-147(21) Honorable I. L. Clayton, Commissioner of Revenue Mr. B. W. Brown, Director Individual Income Tax Division (1) Are alimony payments made under a divorce decree, either absolute or from bed and board, or under a de |
OCLC Number-Original | 2640733 |