North Carolina Attorney General reports

              '
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
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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
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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