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BIENNIAL HEP or rmm . T T O R N E Y G t: 1^ ti or THi T A T' E OF N O R. T H C A 1^ O L i N A VOLUME i7 THE LIBRARY OF THE UNIVERSITY OF NORTH CAROLINA THE COLLECTION OF NORTH CAROLINIANA C3U0 N87a V.37 I962-6U UNIVERSITY OF N C AT CHAPEL HILL 00033947212 This BOOK may be kept out ONE MONTH unless a recall notice is sent to you. A book may be renewed only once; it must be brought to the library for renewal. Digitized by the Internet Archive in 2011 with funding from Ensuring Democracy through Digital Access (NC-LSTA) http://www.archive.org/details/biennialrep1962attrny1964 BIENNIAL REPORT OF THE ATTORNEY GENERAL OF THE State of North Carolina VOLUME 37 1962-64 THOMAS WADE BRUTON ATTORNEY GENERAL Harry W. McGalliard Peyton B. Abbott Ralph Moody Deputy Attorneys General Lucius W. Pullen* Harrison Lewis G. Andrew Jones, Jr.* Charles D. Barham, Jr. Charles W. Barbee, Jr. James F. Bullock Ray B. Brady Richard T. Sanders Assistant Attorneys General Resigned LETTER OF TRANSMITTAL 1 January 1965 To His Excellency Dan K. Moore, Governor Raleigh, North Carolina Dear Sir: In compliance with Article III, Section 7 of the Constitution, I herewith submit the report of the Department of Justice for the biennium 1962-64. Respectfully yours, Thomas Wade Bruton, Attorney General 6 LIST OF ATTORNEYS GENERAL SINCE THE ADOPTION OF CONSTITUTION IN 1776 Term of Office Avery, WaightsJll 1776-1779 Iredell, James 1779-1782 Moore, Alfred 1782-1790 Haywood, J. John 1791-1794 Baker, Blake 1794-1803 Seawell, Henry 1803-1808 Fitts, Oliver 1808-1810 Miller, William 1810-1810 Burton, Hutchins G 1810-1816 Drew, William 1816-1825 Taylor, James F 1825-1828 Jones, Robert H 1828-1828 Saunders, Romulus M 1828-1834 Daniel, John R. J 1834-1840 McQueen, Hugh 1840-1842 Whitaker, Spier 1842-1846 Stanly, Edward 1846-1848 Moore, Bartholomew F 1848-1851 Eaton, William 1851-1852 Ransom, Matt W 1852-1855 Batchelor, Joseph B 1855-1856 Bailey, William H 1856-1856 Jenkins, William A 1856-1862 Rogers, Sion H 1862-1868 Coleman, William M 1868-1869 Olds, Lewis P 1869-1870 Shipp, William M 1870-1872 Hargrove, Tazewell L 1872-1876 Kenan, Thomas S 1876-1884 Davidson, Theodore F 1884-1892 Osborne, Frank 1 1892-1896 Walser, Zeb V 1896-1900 Douglas, Robert D 1900-1901 Gilmer, Robert D 1901-1908 Bickett, T. W 1909-1916 Manning, James S 1917-1925 Brummitt, Dennis G 1925-1935 Seawell, A. A. F 1935-1938 McMullan, Harry 1938-1955 Rodman, William B., Jr 1955-1956 Patton, George B 1956-1958 Seawell, Malcolm B 1958-1960 Bruton, Thomas Wade 1960- ^0 EXHIBIT I Civil Actions Pending in State and Federal Courts During the Biennium 1962-64 . Number of Cases Pending in the Superior Court of North Carolina State Taxes 55 Motor Vehicle Drivers' Licenses 55 Condemnation Proceedings 1,374 Utilities Commission Cases 8 Beer and Wine License Revocations 15 Other 46 TOTAL 1,553 Pending in the Supreme Court of North Carolina State Taxes 2 Other 18 TOTAL 20 Pending in the United States District Courts State Taxes 2 Other 24 TOTAL 26 . Pending in the United States Supreme Court Other 1 Civil Cases Disposed of During the Biennium 1962-64 In the Superior Court of North Carolina 792 In the Supreme Court of North Carolina 33 In the Supreme Court of the United States 7 In the District Courts of the United States 113 Before the North Carolina Industrial Commission 167 Habeas Corpus Petitions Disposed of in the Superior Court 412 Habeas Corpus Petitions Disposed of in the Federal District Court 210 TOTAL 1,734 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. EXHIBIT II Criminal Cases Disposed of in the North Carolina Supreme Court During the Biennium 1962-64 : Abandonment-Nonsupport 3 Assault 3 Assault with Deadly Weapon 5 Assault with Intent to Rape 3 Breaking-Entering-Larcency-Receiving 9 Carnal Knowledge 1 Crime Against Nature 3 Conspiracy 3 Damage to Real Property 1 Embezzlement . . . 1 False Pretense 2 Forgery 5 Gambling 1 Incest 1 License Violation 1 Manslaughter 12 Murder First Degree 4 Murder Second Degree 2 Peeping Into Room Occupied by Woman 1 Perjury 2 Prostitution 1 Public Drunkeness 2 Rape 2 Robbery 8 Trespass 5 Unlawful Practice of Law 1 Violating City Ordinance 1 Violating Liquor Laws 6 Violating Motor Vehicle Laws 3 Violating Rules of the Road 11 Violating Security Act 1 Violating Suspended Sentence 3 Worthless Check 2 TOTAL . .109 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 7 Number of Cases dismissed on motion during the Biennium 1962-64 4 Number of Petitions for Stay of Judgment denied during the Biennium 1962-64 3 Number of Petitions for Writ of Certiorari denied during the Biennium 1962-64 146 Number of Petitions for Writ of Certiorari allowed during the Biennium 1962-64 18 Number of Petitions for Writ of Error Coram Nobis denied during the Biennium 1962-64 2 Number of Petitions for Writ of Habeas Corpus denied during the Biennium 1962-64 12 Number of Petitions for Writ of Mandamus denied during the Biennium 1962-64 7 Fees Transmitted by the Attorney General to the State Treasurer During the Biennium 1962-64 . . $485.00 8 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. SUMMARY OF ACTIVITIES Staff Personnel There have been very few changes in the staff personnel since the publication of the Biennial Report of 1960-62, although there has been an increase in personnel. Attorney General T. W. Bruton, Deputy Attorneys General Harry W. McGalliard, Peyton B. Abbott and Ralph Moody, and Assistant Attorneys General Harrison Lewis, Charles D. Barham, Jr., Charles W. Barbee, Jr., and James F. Bullock served throughout the biennium. In addition to those serving throughout the biennium Assistant Attorneys General Ray B. Brady and Richard T. Sanders were serving at the close of the biennium. Harold Lee Waters was serving as Revisor of Statutes at the close of the biennium. Staff Attorneys who were serving at the close of the biennium w^ere as follows: Parks H. Icenhovir, William R. Pierce, George A. Goodwyn, Ralph M. Potter, Theodore C. Brown, Jr., John W. Twisdale, William B. Ray, Samuel M. Booth, T. Buie Costen, Claude W. Harris, I. B. Hudson, Jr., Andrew H. McDaniel, William W. Melvin, William W. Merriman, III, Millard R. Rich, Jr., Henry T. Rosser, Eugene A. Smith, Robert S. Weathers, Thomas B. Wood, and William F. Briley. Members of the secretarial staff who were serving at the close of the biennium are as follows: Miss Elizabeth N. Flournoy, Mrs. Jean C. Spence, Miss Aida Epps, Mrs. Frances E. Gill, Mrs. Carolyn D'Alio, Mrs. Katharine L. Dowd, Mrs. Cleo A. Purcell, Miss Judith K. Edwards, Mrs. Alice Gorham, Mrs. Edna B. Jerome, Mrs. Helen W. Bagwell, Mrs. Barbara C. Owens, Mrs. Blondell Johnson, Mrs. Ruby Rickm.an, Mrs. Grace Gardner, Mrs. Mary H. Green, Mrs. Margaret P. Roberts, Mrs. Priscilla G. Sandy, Miss Shirley J. White, Mrs. Betty Y. Jeffreys, Mrs. Marilyn Lee, Miss Judy A. Underwood, Miss Carolyn R. Kearney, Mrs. Barbara H. Tucker, Miss Marie McLaurin, Mrs. Frances C Regan, Mrs. Jeanne M. Whitten, Mrs. Brenda M. Johnson, and Mrs. Colleen G. Hinton, Budget Officer. Highway Division of Attorney General's Office During the past biennium, the Attorney General, in the discharge of his responsibilities to represent the State Highway Commission, its Chairman and Director, has handled a work load of more than double the volume handled during the previous biennium. This volume is due in part to the expanded highway program, including the construction of the Interstate Highway System, and in part is due to the condemnation procedure enacted by the 1959 session of the General Assembly, effective July 1, 1960, under which the Commission is required to institute condemnation actions in the Superior Court on those matters which have not been settled prior to the letting of the contract for construction. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 9" At the close of the previous biennium, five hundred ninety-one (591) suits were pending. During the biennium, one thousand one hundred forty-one (1,141) new suits were instituted against or by the Highway Commis-sion, six hundred twenty (620) were disposed of, one hundred forty-six (146) of which were terminated by jury trials in the Superior Court. The balance were settled either prior to or during trial. One thousand three hundred seventy-four (1,374) condemnation and related cases are pending as of the close of the biennium. The State Highway Commission has been represented in the Supreme Court in fifteen (15) cases during the period by members of this staff. At the conclusion of the biennium, there are five (5) cases involving the State Highway Commission pending in the Supreme Court. During the latter part of the biennium, the number of cases opened and disposed of have been about equal and it is anticipated that during the succeeding biennium this trend will continue due to an increase in the staff of this division. During the biennium, the members of this staff participated with the administrative personnel of the Highway Commission in the determination of a large number of claims brought by highway contractors arising out of the contract work carried on by the Commission. Under a 1963 statute, these claims are now being determined in Superior Court in a civil action rather than before an administrative board of review, and it is anticipated that a more efficient disposition of these claims can now be made. The staff has also represented the Commission in the adjustment of claims for dam-age to Commission property and other miscellaneous matters. In addition, members of the staff have drafted, reviewed or approved approximately fifteen thousand (15,000) leases, deeds, right-of-way claims, encroachment contracts, miscellaneous agreements with utilities, railroads, municipalities and other governmental agencies, and construction contracts. Throughout the biennium, the staff has had the very complete cooperation of the State Highway Commission, its Chairman, Director and administra-tion in the prosecution of the Attorney General's work for the State Highway Commission. Tort Claims and Workmen's Compensation The State Tort Claims Act, which was enacted in 1951, imposed upon the Attorney General the duty of representing the various State depart-ments, institutions and agencies, with the exception of the State Highway and Public Works Commission. In 1957, when the Highway and Public Works Commission was separated by the General Assembly, the Attorney General assumed the duty of representing this department in like manner. During the biennium from July 1, 1962, to July 1, 1964, a total of 773 tort claims were filed against the various departments, institutions and agencies of the State. Approximately 50% of this number were handled by the Attorney General. About one-half of these were settled, and the re-mainder were heard before the North Carolina Industrial Commission, as provided by law. 10 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. In 1959, the General Assembly enacted a statute requiring all depart-ments, institutions and agencies of the State to acquire liability insurance on all State-owned motor vehicles. (Chapter 1248, Session Law, 1959). The effective date of this Act was July 1, 1959. As a result of this Act an undetermined number of tort claims against the State, in which State-owned motor vehicles were involved, were settled by the insurance carrier for the various departments, institutions, and agencies during the second half of the biennium. In addition to its duty of representing the various departments, institu-tions and agencies of the State in claims filed under the Tort Claims Act, the Attorney General represents the State in disputed Workmen's Com-pensation claims filed by State employees. During the past biennium approximately 359 disputed claims involving State employees were heard by the Commission. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 11 DIGEST OF OPINIONS AGRICULTURE 7 September 1962 Agriculture; Agricultural Fairs; Circuses; Conflicts in Dates A circus does not come within the purview of G.S. 106-516.1, which prohibits the exhibition of carnivals or shows "of like kind" within 30 days prior to a regularly advertised agricultural fair. Circus performances as they relate to conflicts in dates with agricultural fairs are governed by G.S. 106-519 and G.S. 105-38. 12 August 1963 Agriculture; Checked and Producer Eggs A check or cracked egg is not a "fresh" egg so as to satisfy the require-ments for a Grade A egg, nor can a producer egg go through a segregation procedure and be labelled as an "ungraded" egg. 4 October 1963 Agriculture, Dept. of; Dairy Laws, Minimum Standards in Grading and Testing of Milk and Dairy Products; Definition of Milk Misbranding The minimum standards of the Board of Agriculture as to the butterfat content of milk, skimmed milk and chocolate milk are controlling through-out the State; local boards of health may adopt more stringent regulations in regard to such content but such regulations should not conflict with the Board of Agriculture's minimum standards; a milk container having printed on it "chocolate milk" and under this the word "skimmed" is mis-branded for the reason that in this particular case the standard as to butterfat was anything less than 3^/4%, whereas the standard of the Board of Agriculture is not more than 1% butterfat. 10 December 1963 Agriculture; Egg Law; Egg Distributors; Failure to Obtain Distributor's Permit The Department of Agriculture has the right and authority under the law to stop the sale of a distributor's eggs on the market when such dis-tributor has not secured a distributor's certificate as required by G.S. 106-245.3, and any distributor who violates this statute shall be found guilty of a misdemeanor and upon conviction shall be fined not more than fifty dollars or imprisoned not more than thirty days. 12 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 6 February 1964 Agriculture; Unfair Practices by Handlers of Farm Products, Poultry and Eggs G. S. 106-496, relating to unfair practices by handlers of farm products, would include the handling of poultry and eggs. ABC ACT 24 August 1962 ABC Act; Closing of ABC Stores for County Bond Election All ABC stores are required to be closed on election day in a county hold-ing a county-wide special bond election. 18 June 1963 ABC Act; County ABC Board Selling Surplus Personal Property No statutory authority for county ABC Board to dispose of personal property by sale or otherwise and no statutory procedure is provided for the sale of its personal property. Nevertheless, it is felt that county ABC Boards have implied authority to dispose of surplus, obsolete, or unused property by public auction or upon sealed bids after due advertisement. 20 June 1963 ABC Act; Elections; Municipal ABC Election by Special Act; Beer and Wine Election A county or municipal election on the question of legal sale of beer or wine or both may not be held on the same date of a special liquor election in a municipality, or within 60 days of any general, special or primary election in the county or any municipality therein, until after July 1, 1963. G. S. 18-124 (f ) specifies what conditions must be met in order for a beer and/or wine election to be held on the same date as an election for ABC stores. 9 September 1963 ABC Act; Municipalities; No Authority to Call Liquor Election Without Enabling Act There is no general law authorizing a municipality to call a liquor elec-tion either with or without a petition. .37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 13 31 August 1962 ABC Act; Wholesaler of Malt Beverages; Wholesaler License A person, firm or corporation that sells the beverages enumerated in G. S. 18-64 (a), in barrels, bottles or other containers, in quantities of not less than one case or container to a customer for resale, is a wholesaler and subject to a wholesaler's license as provided in the Beverage Control Act. ABC BOARD 18 May 1964 ABC Board; Authority of County Board to Erect a Building for Purposes of Selling and Storing Alcoholic Beverages G. S. 18-45(8) grants to the county ABC Boards the implied power to erect and construct buildings on land purchased by the said county ABC Boards for the purposes of selling and storing alcoholic beverages. 29 April 1964 ABC Board; Authority of Local Board to Make Donation to Subsidize A Jitney Bus Operation A local ABC board may not appropriate funds to subsidize a jitney bus operation in the vicinity of an ABC store. ALCOHOLIC BEVERAGES 28 August 1963 Alcoholic Beverages,- Beer and Wine; Transporting Beer in Taxicab, Delivery Truck; Possession, prima facie Rule for Sale There is no statutory limit upon the quantity of beverages, enumerated in G.S. 18-64, which an individual may purchase, transport and possess. However, possession of more than five gallons of beer (15^/^ gallons of draft beer in wet area) raises a presumption that it is for purpose of sale. G.S. 18-32. Any vehicle transporting such beverages on the public highways must comply with G.S. 18-66 as to registration, certificate for transportation, etc., except when the transporting is by an individual for his own use. 29 November 1962 Alcoholic Beverages; Municipal Police Officers; Arrest of Violators Outside Municipal Limits A municipal police officer in hot pursuit of a person found to be violating 14 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. the liquor laws of this State may pursue such violator beyond the municipal limits and arrest the violator. G.S. 18-45 (o). 25 June 1964 Alcoholic Beverages; Private Lockers in Club Located in Dry County It is illegal under any and all circumstances to keep alcoholic beverages in a private locker at a clubhouse in a dry county. 30 November 1962 Alcoholic Beverages; Sales on Airplanes Operating Over Routes Crossing State of North Carolina With the exception of beer and wine, with not more than 14% of alcohol content sold by a licensed retailer, no alcoholic beverage of any kind may be sold in any aircraft passing over or through the State of North Carolina. ARCHIVES AND HISTORY 23 October 1963 Archives and History, Dept. of; State Capitol Building; Placement of Bronze Plaques The disposal of surplus property by State agencies and departments is under the control of the Department of Administration. BANKS, BANKING 6 August 1962 Banks; Excise Taxes; Deduction; Amortization op Bond Premiums Not Deductible No annual deduction for amortization of bond premium is allowable in computing income taxes due under Article 4, Chapter 105 of the General Statutes, nor is any annual deduction for amortization of bond premium allowable in computing the excise tax on banks provided by Article 8C, Chapter 105 of the General Statutes, regardless of the purpose for which the bonds are held. 2 December 1963 Banks; Inactive Accounts; Escheats; Service Charges The right of a bank to make service charges with respect to a depositor's account is dependent upon the bank's contractual relationship with the depositor. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 15 17 February 1964 Banks; Incorporation of an Existing Statute into Another Statute BY Descriptive Reference; Authority of State Banks to Issue Capital Notes or Debentures State banking corporations are authorized under the banking laws of this State to issue capital notes or debentures under regulations prescribed by the Banking Commission and supervised and administered by the Commis-sioner of Banks. 2 October 1963 Banks; National Banks; Trust Departments; No Supervision by State Commissioner The North Carolina State Department of Banks does not have any super-visory pow^ers with respect to trust accounts of national banks. 25 June 1964 Banks; Sale of Checks and Money Orders Any person, firm or corporation other than a bank may not engage in the business of selling money orders or checks unless duly licensed by the Com-missioner of Banks to engage in this special business. 22 August 1963 Banks; Small Loan Act; Consumer Finance Act; 1963 Insurance Premium Financing Act; Construction of Certain Provisions (1) A licensee under the Consumer Finance Act may engage in the busi-ness of acquiring insurance premium finance agreements from insurance premium finance companies and may carry on such business in the same place as its lending business because G. S. 53-172 specifically exempts install-ment paper dealing from its prohibition against carrying on additional types of business in a loan office. (2) If the same corporaton is licensed both under the Consumer Finance Act and the Insurance Premium Financing Act and attempts to operate pursuant to the Insurance Premium Financing Act, such premium financ-ing business could not, because of G. S. 53-172, be carried on in the same office as the lending business. 6 March 1963 Banks; What Constitutes Banking; Money Order Services; Travelers Checks It would violate the State banking laws for any person or firm other than a duly chartered bank to operate a money order or travelers check service. 16 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. BIDS; BIDDING 8 November 1963 Bids; Bidding; Counties; Public Bidding Statutes; Rejection of Lowest Bid In considering bids for motor vehicles which meet all specifications, a county has no authority to reject the lowest bid unless it determines that the agency submitting the lowest bid was not responsible, taking into con-sideration quality, performance and the time specified in the proposals for the performance of the contract. 2 October 1962 Bids; Bidding; Public Bidding; Medical Care Commission; "Lowest Responsible Bidder" In determining "the lowest responsible bidder" for public bidding pur-poses under G. S. 143-129, a discount for payment within a limited period offered by a bidder should be taken into account. BONDS, BONDSMEN 3 January 1964 Bonds; Bondsmen; Runners; Commissioner of Insurance; Regulation OF Rates and Charges The Commissioner of Insurance has no authority under Chapter 85A of the General Statutes of North Carolina to promulgate rating schedules or to regulate the charges which professional bondsmen and property bonds-men make for their services. 18 December 1962 Bonds; Clerk of Court; Statement of Conditions; Cancellation Clause Bond of Clerk of Superior Court must be conditioned upon requirements set forth in G. S. 2-3 ; G. S. 109-3 requires such bond to be for term of office, therefore non-cancellable. BUSINESS AND COMMERCE 2 December 1963 Business and Commerce; Debt Adjustment Services; Prohibited by Statute Engaging in the business of carrying on a debt adjustment, debt con-solidation and debt payment service for individuals was made unlawful by Chapter 394 of the Session Laws of 1963. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL IT CEMETERIES 13 September 1962 Cemeteries; Church Cemeteries; Extension of Church Building Over Abandoned Cemetery A church may not enlarge its church buildings to cover an abandoned cemetery without first giving the statutory notice and removing the graves as provided by Section 65-13 of the General Statutes. 24 April 1963 Cemeteries; Removal of Grave in City Cemetery by City A municipality w^ould not be performing a governmental function in open-ing a privately-owned grave in a city cemetery for the purpose of removing the remains to another grave in said cemetery. CITIZENSHIP 28 November 1962 Citizenship; Conviction of a Crime in Another State; Effect This office has always taken the view that the North Carolina Constitu-tional provisions as to loss of citizenship for commission of crime apply only to convictions for violation of statutes of this State. ' 27 May 1963 Citizenship; Pardon; Effect on Right to Vote and Hold Elective Office A person who has been convicted of a felony is disqualified as a voter and is not eligible to hold public office, under Article VI, Sections 1, 2, 7 and 8 of the North Carolina Constitution, until his citizenship has been restored as provided in Chapter 13 of the General Statutes. The fact that a disqualified person was pardoned by the Governor after such person's election, but prior to taking the oath of office, does not eliminate the neces-sity of having citizenship restored by the statutory procedure. A pardon does not ipso facto restore citizenship in North Carolina. One disqualified to hold office as of the date of his apparent election is not automatically entitled to hold such office by subsequent restoration of citizenship. 7 August 1963 Citizenship; Restoration of Citizenship After Conviction of Felony; Effect of Parole; Time of Application A parolee cannot apply for restoration of citizenship under Chapter 13 of the General Statutes until the applicant has been discharged from parole. 18 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 4 February 1963 Citizenship; Right of Person Convicted of Federal Offense to Hold County Office Conviction of a North Carolina citizen of a felony in a Federal court does not cause such person to lose his North Carolina citizenship. CIVIL DEFENSE 10 January 1964 Civil Defense; Authority to Use School Buildings and Other Facili-ties Without the Specific Consent of the Appropriate County Board OF Education The County Commissioners of a particular county may authorize the use of school buildings and other facilities for Civil Defense purposes during an emergency as defined by Chapter 166 of the North Carolina General Statutes, even though no specific consent has been granted by the County Board of Education. 28 April 1964 Civil Defense; Workmen's Compensation for Volunteer Civil Defense Workers A volunteer Civil Defense w^orker, who is not otherwise an employee of the State government, or a local governmental unit, who performs his services in a duly authorized Civil Defense exercise or training period so as to better the Civil Defense readiness, would not be allowed to receive workmen's compensation benefits in the event said volunteer Civil Defense worker is injured or killed while performing such authorized duties. CIVIL PROCEDURE 8 May 1963 Civil Procedure; Service of Civil Summons on Sundays Section 103-3 of the General Statutes make it lawful to serve a civil summons on Sunday. 29 April 1963 Civil Procedure; Waiver of Personal Appearance Court officials and law enforcement officers are not permitted to waive appearance of defendants; to be allowed to waive appearance, there must 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 19 be a warrant issued and served and appearance personally waived in writ-ing by defendant or through his counsel; the case should be properly docketed, evidence heard and judgment rendered. CONSTITUTIONAL LAW 15 February 1964 CONSTITUTIONAL LAW; MUNICIPAL CORPORATIONS; VALIDITY OF ORDINANCE OF Chapel Hill Regulating Picketing The Chapel Hill Ordinance regulating the time, place and manner of picketing is a valid regulation of the use of the streets of the Town under authority delegated to the Board of Aldermen by the General Assembly; the ordinance does not violate freedom of speech and assembly as guaran-teed by the First Amendment and made applicable to the States through the Fourteenth Amendment; the Ordinance is neutral and does not dis-criminate against persons or groups because of race, color or creed; the ordinance does not violate the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment. 17 February 1964 Constitutional Law; Religion and Public Education; Prayer in Public Schools; Prayer on a Voluntary Basis The reading of the Bible and recitation of prayers in the public schools can be properly engaged in on a voluntary basis. It would be constitu-tionally invalid if such reading of the Bible and saying of prayers were by order of a school board or other State agency. CONTRACTS 3 June 1963 Contracts; Insurance; Validity of Certified Copy of General Power of Attorney Opinion given that a certified copy of the General Power of Attorney issued in conjunction with a guaranty contract by an insurance company is valid and binding upon the insurance company if the corporate seal is attached thereto, citing G. S. 55-36 (c) and (d). 12 September 1962 Contracts; Lease; Execution A lease for a term of years complies with G. S. 22-2 if in writing and signed by the party to be charged thereunder, and is not governed by re-quirements of law for conveyance of real property. 20 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. CORPORATIONS 28 February 1964 Corporations; Foreign; Doing Business; Pension Trusts; Banking Institutions A corporation organized under the laws of another state and engaged in the banking and trust business cannot qualify to do business in North Carolina. Therefore, such foreign banking institution, as trustee under a trust indenture, could not purchase real property in this State under a plan whereby the bank would immediately after purchase lease back the prop-erty to the seller under a long term lease agreement. COUNTIES 20 July 1962 Counties ; Building and Plumbing Inspectors ; Agreement Between County and Municipalities; N. C. Building Code A Board of County Commissioners may enter into contracts with munici-palities within the county to support a joint Building Inspection Depart-ment. 25 September 1963 Counties; Community Colleges; Authority of County Commissioners TO Convey Surplus County Property to Community College A county owning surplus real property has the authority to convey such surplus real estate to a community college located in the county since such conveyance is supported by valid consideration in discharge of the county's legal duty to furnish real estate as a capital outlay item in the local budget for such college; such conveyance also is for a public purpose and is a transfer from one county governmental unit to another governmental unit. 17 September 1962 Counties; Condemnation; Authority to Condemn Property for County Buildings Boards of county commissioners are possessed only with those powers which have been expressly conferred or which are necessarily implied for the proper exercise of the duties imposed upon them and may not exercise the power of condemnation unless expressly conferred by the Legislature, or the power of condemnation is necessarily inferred from the particular act involved. 37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 21 10 March 1964 Counties; County Commissioners; Authority to Request County Board OF Elections to Hold Supplemental School Tax Election; Public Schools; Items for which Supplemental Tax may be Used Elections for the purpose of determining the question of a supplemental school tax can be held in each school district in a county, and where the school district lines coincide with the township lines a reference to such fact in a petition is a sufficient description; where the petition uses the words of a statute in designating the objects of expenditure for such supplemental tax, this is sufficient designation of the objects; in the absence of an authorizing statute the board of county commissioners should hold the election on the question of the approval of a supplemental tax. 27 February 1963 Counties; County Commissioners; Chairman of a Public Board; Authority of the Chairman to Vote a Second Time to Break a Tie There is no statutory authority which authorizes the chairman of a board of county commissioners to cast the deciding vote in case of a tie after he has already voted as a member of the board. In the absence of a rule which provides for double voting, the chairman of a board of county com-missioners is entitled to vote as a member of the board and is not entitled to vote a second time to break a tie. See MARKHAM v. SIMPSON, 175 N. C. 135, and STATE v. LONG, 186 N. C. 516. 26 July 1962 Counties; County Finance Act; Bond Ordinance; Proceeds of Bonds It is not necessary that a bond ordinance state in detail the use to which the proceeds will be put so long as the proceeds are used in furtherance of the general purpose set out in the bond ordinance. 14 November 1963 Counties; County Office Building; Authority to Construct OR Acquire A county has authority to acquire, purchase and construct a county office building to house offices, departments, bureaus and agencies of the county government. 23 August 1962 Counties; County Planning Boards; Water Resources; Ground Water Survey Expenditure of funds for county planning purposes pursuant to G. S. 153-9 (40) is a necessary expense in the constitiitional sense. 22 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 26 February 1964 Counties; Director of Public Trust Contracting for His Own Benefit; Account in Bank of which One of County Commissioners is Vice-President G. S. 14-234 exempts public officials transacting business with a bank from its provisions and the county may maintain a checking account in a bank where one of the commissioners is vice-president. 20 June 1963 Counties; Expenditure of Funds; Appropriation to Develop Private Property A county has no authority to expend public funds to develop private property. 7 December 1962 Counties; Expenditure of Funds: Public Purpose; Construction of Building to be Sold to Veterinarian A county does not have authority to use public funds to build a building for a private individual and then sell the same to the private individual on a time basis. . . 26 September 1962 Counties; Insurance; Authority to Purchase Insurance in Mutual Insurance Companies Counties, municipalities, and boards of education may purchase insur-ance in mutual insurance companies. 8 May 1963 Counties; Insurance; Group Life and Hospital Insurance A county has authority to pay premiums for group life insurance and hospital and medical insurance for county employees, and the providing of such a "fringe" benefit really amounts to a salary supplement to the extent of the amount of the premium involved. 31 July 1963 Counties; Municipalities; Water Supply; No Authority in County to Compel Fluoridation A board of county commissioners has no authority to compel a munici-pality to fluoridate it§ water supply. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 23 2 December 1963 Counties; Municipalities; Water and Sewage Services; Joint Projects Article 24 of Chapter 153 of the General Statutes authorizes the estab-lishment of water and sewer lines jointly by towns and any county to industrial plant sites located outside the municipal limits of a town. 18 December 1962 Counties; Necessary Expense; Use of Tax Money for County Audi-torium; Bond Issue; Use of Nontax Funds for Preliminary Expenses Establishment of a public auditorium by a county is for a public pur-pose, but expenditures therefor are not necessary expenses; non-tax funds may be used for preliminary expense, but approving vote of people is necessary before issuing bonds or levying taxes to pay therefor. 8 November 1963 Counties; Public Bidding Statutes; Rejection of Lowest Bid In considering bids for motor vehicles which meet all specifications, a county has no authority to reject the lowest bid unless it determines that the agency submitting the lowest bid was not responsible, taking into con-sideration quality, performance and the time specified in the proposals for the performance of the contract. 30 October 1963 Counties; Water and Sewer Systems; Acquisition of Right of Way The statutory right of a county to acquire and maintain water and sewer systems includes the authority to acquire the necessary rights of way there-for. COURTS 18 March 1963 Courts; Costs; City Police Officers; Witness Fees Under the general law, G. S. 6-52, a law enforcement officer who is on a salary basis is not entitled to witness fees for attending court with respect to cases with which he is officially connected. 2 November 1962 Courts; Costs; Liability of County in Criminal Actions Trial judges should determine insolvency of convicted defendant before county liability for pajrment of costs arises under G. S. 6-36. 24 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 27 August 1962 Courts; Domestic Relations Courts; Disclosure of Confidential Information; Court Costs An attorney representing a child or children in the Domestic Relations Court has the legal right to read and examine the court summary and also the case worker's or probation officer's report and any other information of a confidential nature if the same have been made available to the judge of the court. But a Judge of the Domestic Relations Court has no discretion to reduce the amount of costs, except in cases where the amount of cost is strictly a matter of law. 30 November 1962 Courts; Witnesses; Attendance at Criminal Terms; Re-issuing Subpoenas The effect of G. S. 7-73.1 as to attendance of witnesses at succeeding terms of criminal courts is to repeal the effect of G. S. 8-63, in that wit-nesses are no longer required to continue attending from term to term until dismissed when a case has been once continued, but are to be re-subpoenaed for a day certain at the next term when the trial is scheduled. CRIMINAL LAW 3 October 1963 Criminal Law; Embezzlement; Borrowed Goods; Leased Goods; Mortgages and Deeds of Trust; Sale of Mortgaged Property If a person borrows or leases personal property from another and sells it without permission, he is guilty of embezzlement. 26 September 1962 Criminal Law; Evidence Obtained Without Valid Search Warrant Evidence obtained through use of an invalid search warrant is inad-missible. 10 August 1962 Criminal Law; Marriage Laws; Bigamous Marriages In North Carolina a bigamous marriage is not voidable but void. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 25 7 February 1964 Criminal Law; Murder; Time of Death; Lapse of More Than a Year AND A Day In this State a person may not be convicted of murder when the fatal wound was inflicted more than a year and a day before death occurred. 10 October 1962 Criminal Law; Procedure; Evidence Obtained With Valid Search Warrant Evidence obtained as a result of a search made pursuant to a proper search warrant signed by a Mayor Pro Tern during the illness or absence of the Mayor would be competent and admissible. 11 July 1962 Criminal Law; Public Drunkenness; Hotel Lobby A hotel lobby is a public place within the meaning of the statutes pro-hibiting drunkenness in a public place. 2 July 1962 Criminal Law; Pyrotechnics; Explosives; "Amateur Rocketry" North Carolina does not have any statutes which are designed to encour-age "amateur rocketry". 9 December 1963 Criminal Law; Pyrotechnics; Sparklers "Sparklers" are considered pyrotechnics within the meaning of the law in this State prohibiting the sale, exhibition or possession of fireworks. 28 August 1962 Criminal Law; Selling Cigarettes to Certain Minors It is unlawful in this State to sell or give cigarettes or tobacco in any form to a minor under the age of seventeen. 20 August 1962 Criminal Law; Worthless Check; Stopping Payment The mere stopping payment on a check that has been issued, when there are at all times adequate funds in the bank to cover it, does not constitute a violation of the worthless check law. 26 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. CRIMINAL PROCEDURES 22 August 1963 Criminal Procedure; Appeals by State; Not Allowed on Directed Verdict A directed verdict of "not guilty" in a criminal case is not such a "special verdict" as would authorize the State to appeal under G. S. 15-179. 25 January 1963 Criminal Procedure; Appeal From Recorder's Court to Superior Court—Waiver A defendant may perfect his appeal within the ten-day period pre-scribed by law even though he may have signed a waiver of such right. 30 September 1963 Criminal Procedure; Appointment of Counsel for Indigent Defen-dants; Compensation of Counsel; Payment Out of State Appropria-tion FOR Counsel Appointed under the State Post-Conviction Hearing Act Counsel appointed for indigent petitioners under the State Post-Convic-tion Hearing Act are entitled to be paid in the same manner and out of the same appropriation of State funds as counsel who are appointed for indigent defendants in State trials under Chapter 1080 of the Session Laws of 1963. 2 January, 1963 Criminal Procedure; Nolle Prosequi; Effect on Further Prosecution for Same Offense Where a nol pros with leave has been entered by the court in a criminal proceeding, the State may later reopen the case by the issuance of a capias upon the original warrant or indictment. 9 April 1964 Criminal Procedure; Warrants; Desk Officers; Issuance of Search Warrant An officer designated by the chief of police as a "desk officer" pursuant to G. S. 160-20.1, enacted by the 1963 General Assembly, would have authority to issue search warrants as well as warrants of arrest. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 27 8 November 1963 Criminal Procedure; Witnesses; Fees; Salaried Officers A salaried law enforcement officer is not entitled to witness fees for attendance at court in connection with cases in which he has officially par-ticipated even though the trial occurs at a time or on a day when he is off duty. DETECTIVES 17 January 1963 Detectives; Private Detectives; Carrying Concealed Weapons A private detective may not carry a pistol concealed about his person. Before an individual may purchase a pistol in this State, he must first secure a permit from the sheriff of the county where the purchase is to be made. 30 May 1963 Detectives; Private Detectives; Collection Agencies; Prohibition Against Engaging in Both Occupations It is unlawful for a person to be a bill collector and a private detective at the same time in this State. DIVORCES 21 August 1963 Divorces; Judgments; Effective Date of Judgment A judgment for divorce becomes effective as between the parties to the marriage only on the day the judgment of divorce is signed by the judge. 16 December 1963 Divorces; Remarriage; No Waiting Period With respect to your inquiry of December 11, 1963, when an absolute divorce is granted in North Carolina, each party is free to remarry im-mediately without any waiting period. 14 September 1962 Divorces; Validity of Foreign Divorce If a divorce is legally obtained in a foreign state under the laws of such foreign state, it would be recognized in North Carolina. 28 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. DOUBLE OFFICE HOLDING 29 April 1964 Double Office Holding; Candidate for Public Office and Membership ON A Local School Board A member of a local school board is not required to resign from said board when he becomes a candidate in the primary for membership on the board of county commissioners. However, both of the positions mentioned above are considered public offices within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may not hold both these offices at the same time. 14 November 1963 Double Office Holding; Chairman of County Board of Elections and Member of Medical Care Commission A chairman of a county board of elections and a member of the Medical Care Commission are both public offices within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding. 2 December 1963 Double Office Holding; County Commissioners; Commissioner Serving as Jailer; Commissioners of Public Trusts It would constitute a violation of G.S. 14-234 for a member of a board of county commissioners to accept an appointment by the board to the position of county jailer. 22 August 1962 Double Office Holding; County Manager-Auditor; Town Mayor Where the powers and duties of the County Accountant have been im-posed and conferred upon the County Auditor, under G. S. 153-115, and such person also performs the duties of County Manager under G. S. 153-20, such person would be constituted a public officer within the meaning of Article XIV, Section 7 of the Constitution of North Carolina. 21 June 1963 Double Office Holding; County Sanitarian and Member of Town Zoning Board of Adjustments A Sanitarian II, employed by a County Health Department, is a position of employment and not a public office within the meaning of Article XIV, Section 7 of the North Carolina Constitution, 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 29 2 January 1964 Double Office Holding; Deputy Register of Deeds; Local Registrar for Bureau of Vital Statistics Local Registrars of Vital Statistics, appointed under G. S. 130-40, is a public officer and may not hold another public office at the same time under Article XIV, Section 7 of the North Carolina Constitution. 11 July 1962 Double Office Holding; Justices of Peace Acting as Policemen; Authority to Issue Warrants A justice of the peace may also be a member of a municipal police force, since a justice of the peace comes within the express exception to the pro-scription of double office holding of Article XIV, Section 7 of the North Carolina Constitution. Such justice of the peace may, in his capacity of justice of the peace, take the oath of another police officer to an affidavit on which a criminal warrant is to be issued, and then, as justice of the peace, issue a warrant thereon returnable before the judge of the municipal court. STATE v McHONE, 243 NC 231. 2 July 1963 Double Office Holding; Justice of the Peace and Notary Public A justice of the peace may also hold the office of notary public. See Sec-tion 7 of Chapter 313 of the Session Laws of 1961. 9 April 1963 Double Office Holding; Justice of Peace Holding Other Office; Effect of Constitutional Amendment to Article XIV, Section 7, AS of November 30, 1962 The exemption of a jubtice of the peace, from the prohibition as to double office holding, has been removed from Article XIV, Section 7, North Carolina Constitution, since certification of the Amendment on November 30, 1962. 30 July 1962 Double Office Holding; Member, Board of County Commissioners and . . County Tax Supervisor The same person may not occupy the offices of member of the Board of County Commissioners and County Tax Supervisor, as this would constitute double office holding contrary to Article XIV, Section 7, of the Constitution of North Carolina. 30 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 26 April 1963 Double Office Holding; Member, Board of Higher Education Membership on the State Board of Higher Education is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding. The office of membership on the State Board of Higher Education may be lav/fully held by a person holding any other public office without violating the provisions of the Constitution referred to above. A member of the Board is considered as falling within the exemption and is considered a commissioner of a public charity. 29 April 1964 Double Office Holding; Member, County Board of Elections and Local School Committee Membership on a local school committee and membership on a county board of elections are both considered public offices within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may not hold both these offices at the same time. 15 August 1962 Double Office Holding; School District Committeeman AND Postmaster School district committeeman is a public office. 10 September 1963 Double Office Holding; State Employment; Janitor, Bus Driver; Running for Public Office There is no statute which would prohibit a school janitor or bus driver from filing and running for public office in a county or township. 29 October 1962 Double Office Holding; Supervisor of Soil Conservation District and Member of ASC The position as supervisor of a Soil Conservation District and the posi-tion as member of ASC are both public offices and one person may not hold both offices at the same time, since this would constitute double office hold-ing, which is prohibited by Article XIV, Section 7, of the North Carolina Constitution. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 31 24 January 1964 Double Office Holding; Trustees of University of North Carolina; Commissioners of Public Charities The office of trustee of the University of North Carolina is a public office. However, the University of North Carolina is considered a charitable institution; therefore, a trustee may lawfully hold another public office without infriengement of Article XIV, Section 7 of the North Carolina Constitution. 23 July 1962 Double Office Holding; Trustees of Watershed Improvement Districts ; Registrars North Carolina constitutional prohibitions against double office holding apply to the office of registrar for election purposes and trustees of water-shed improvement districts organized under Article 2, Chapter 139 of the General Statutes. EDUCATION 12 July 1963 Education; Colleges; A & T College; Special Policemen; Bond Required A person who is appointed a special policeman under Article 10 of Chap-ter 60 of the General Statutes is required to furnish a bond "payable to the State of North Carolina, conditioned upon the faithful performance of the duties of his office." 11 March 1964 Education; Colleges; Speaker Ban Law; Visiting Speakers at State- Supported Colleges and Universities; Application of Act to Russian Folk and Ballet Ensemble Chapter 1207 of the Session Laws of 1963 prohibiting certain Communist speakers and others from using the facilities of State-supported colleges and universities has no application to a folk and ballet group who perform on a college campus and whose activities are entirely in the artistic and cultural field. . . ' 11 November 1963 Education; Community Colleges; Board of Trustees as Body Corporate and Governing Authority of Community Colleges Under the provisions of Chapter 115A of the General Statutes the Board of Trustees of a community college, technical institute or industrial edu- 32 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. cation center is a body corporate and is authorized by the statute to hold title to property, both real and personal. 11 November 1963 Education; Community Colleges; Multiple-County Administrative Areas; Financial Support of County in which College is Located and County in which College is not Located; Approval of Contract by Voters of County If two or more counties form a multiple-county administrative area under the Community College Act, then each county may agree in a contract as to the percentages of costs that each county will pay for procurement of land and erection of buildings; under such a contract a county in which the col-lege is not located could agree to pay its pro rata portion of the operational expense based on the proportion of students that such county furnishes to the entire student body and such county may provide for bus transportation to and from the college at its own expense; if a multiple-county administra-tive area is formed and a contract is proposed between the various counties, then the voters of each county concerned should approve the provisions of the contract along with the question of furnishing a pro rata share of financial support and this would constitute a continuing obligation year after year unless the contract was legally terminated. 22 January 1964 Education; Community Colleges; Statutory Provisions Governing Community Colleges Organized Prior to the Year 1963, or Prior to THE Enactment of G. S. 115A. Community colleges organized prior to the enactment of Chapter 115 A of the General Statutes should transfer such colleges to boards of trustees organized under said Chapter since Chapter 115A of the General Statutes is now the controlling law in community colleges. 15 February 1964 Education; County and City Administrative Units; Acquisition of Site for Educational Facility by One Unit within the Territorial Boundaries of another Unit; Operation of Educated Facility by One Unit within the Boundaries of another Unit; Authority of City Administrative Unit to Transfer its Property; Title to Property of Educational Facility A county board of education may acquire a school site within the boun-daries of a city administrative unit but the county unit may not operate a school thereon without an agreement and approval of the city board of education; a city board of education has no authority to transfer or make a conveyance of its school property and buildings unless it meets the condi-tions set forth in G. S. 115-126 as to the sale, exchange or lease of school property. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 33 15 May 1964 Education; Higher Education; Consolidated University of North CAROLINA; North Carolina State of the University of North Carolina AT Raleigh; School of Engineering; Educational Functions of the University; Charlotte College; Authority to Confer Degrees in Mechanical and Electrical Engineering The Board of Trustees of the University of North Carolina allocates to its various campuses the functions that shall be carried on by each college and if new functions or educational programs are established at any of the institutions, they should be authorized by the State Board of Higher Education; there is nothing in the present statutes that prevents or pro-hibits any of the campuses or colleges, when properly authorized, from giv-ing courses in engineering; at the present time Charlotte College is subject to Article 2 of Chapter 116 of the General Statutes and with the authoriza-tion of the State Board of Higher Education it can grant engineering de-grees in mechanical and electrical engineering. 25 February 1964 Education; Higher Education Facilities Act of 1963; Authority of Governor to Appoint State Commission on Higher Education Facilities By virtue of his constitutional executive power and also by virtue of G. S. 143-164 the Governor of North Carolina has the legal authority to appoint a commission and advisory group for the purposes of carrying out the provisions, on the part of the State, of Public Law 88-204, known as the Higher Education Facilities Act of 1963. 16 March 1964 Education; Industrial Education Centers; Establishment of Unit or Satellite of Industrial Education Center in a County Other than THE Original Center; Authority of Local Board of Education to Finance Satellite Unit under Contract An industrial education center located in one county has no legal authority to establish and financially support an additional campus or satellite unit in another county. .13April 1964 Education; Industrial Education Centers; Instruction and Classes in Industrial Education in a County other than Original Center; Authority of Local Board of Education to Finance Local Instruction Industrial education centers can contract with local school boards for area instruction and boards of county commissioners can budget funds to the local school boards for this purpose. 34 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 11 April 1964 Education; Industrial Education Center; When Necessary to Hire Architect; When Necessary to Submit Contract to Bidders Architects are not required on public works projects unless the expendi-tures are in excess of $20,000; repairs or additions can be made a unit of government through its own employees if the project involved does not ex-ceed $15,000; otherwise if the project is equal to or more than $3,500 then the contract must be let to the lowest bidder after advertisement. 23 August 1962 Education; Public Schools, Act Providing Scholarship Loan Fund for Prospective Teachers The Scholarship Loan Fund for prospective teachers permits credit on a scholarship loan for each full school year taught in a North Carolina public school; the schools operated at Fort Bragg and at Camp Lejeune for the dependents of military personnel are not North Carolina Public Schools and credit cannot be given on a scholarship loan fund for any year taught in such schools; Caswell School at Kinston is a North Carolina public school and credit can be given on a scholarship loan for each year taught in such school. 31 July 1963 Education; Public Schools; Age of New Employee; Teachers and State Employees' Retirement System There is no State law placing any limitation on the age at which a person may be employed as a school teacher. Frequently local boards have, as a matter of policy, adopted certain age limits but this is a matter of local policy and not of State law. 30 April 1964 Education; Public Schools; Attendance Counselors; Pre-Trial Inves-tigations; Referral to Department of Public Welfare; Compulsory Attendance An attendance counselor of the public school system is not required to act as probation officer in the case of a child brought before a juvenile court; such counselor is not required to fill out any forms used by the Department of Public Welfare and has no connection with the Department of Public Welfare. 13 February 1964 Education; Public Schools; Authority of Board of County Commissioners Over Employees Boards of county commissioners have no legal authority to control the conditions of employment, office hours, sick leave, vacation, and holidays of employees of county and city boards of education. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 35 7 August 1962 Education; Public Schools; Authority of Board of Education to Assign Children to Public Schools; Status of School Attendance Pending Appeal of Parents to Superior Court The board of education of a county is vested with complete authority to assign pupils to the various schools under its jurisdiction; where parents of children ask for reassignment of pupils and this is refused by the board pending appeal to the Superior Court, the children should attend the schools as ordered by the board. 30 April 1964 Education; Public Schools; Authority of Board of Education to Contribute Funds for Construction of Sewerage Disposal Plant by Municipal Corporation which will be Used by the School A county board of education can contribute funds to a municipal cor-poration for the construction of a sewerage disposal plant which will be used both by the municipal corporation and by the school authorities. 29 May 1964 Education; Public Schools; Authority of Board of Education to Provide for Sewage System It is the duty of the board of education to provide sewage facilities for public schools; where a town permits a county school system to use its sewage facilities without any contract or agreement the town may termi-nate the use of the facilities when it desires to do so. 11 April 1964 Education; Public Schools; Authority of Member of Board of Education to Teach as a Substitute Teacher If a person teaches in the public schools, such person is ineligible to be a member of a city or county board of education. A member of a board of education, therefore, should not teach in the public schools, even as a substitute teacher, as this would render such person ineligible to serve on the board. 14 February 1964 Education; Public Schools; Bond Issue; Reallocation of Funds With-in THE General Purpose for Which Bonds are Authorized; Diversion of the Proceeds of a Bond Issue for Capital Outlay Purposes The Board of Education and the Board of County Commissioners may reallocate bond proceeds where the reallocation is a mere change in the method or manner in carrying out the basic purpose for which the bonds 36 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. were approved; such funds, however, cannot be used for a new project which is entirely different from the basic purpose as this would constitute a diversion of funds. 12 October 1962 Education; Public Schools; Cafeterias Furnishing Food to Civic Clubs and Public Meetings Public school cafeterias under G. S. 115-51 can only be used or operated for the convenience of teachers, school officers, and pupils of the school; cafeteria facilities can be i;sed for supper and evening meetings or student activities, teachers' meetings, meetings of the board of education and similar school-related meetings under regulations issued by the boards of education. 29 May 1964 Education; Public Schools; City Administrative Units; Number of Members of Board of Trustees Boards of trustees of city administrative units were left, by the General Statutes when the school laws were revised, as provided by the various local acts governing such boards of trustees; where the statute fixes the number of members of the board, no new or additional members can be appointed or added to the board unless the statute is amended for such purposes. 14 March 1964 Education; Public Schools; Compulsory Attendance Law; Penalty for Violation; Successive Violations of Compulsory Attendance Law The Compulsory Attendance School Law creates a continuing offense and a parent can be indicted and convicted for successive periods of time and for successive offenses in failing to send a child to school. 13 December, 1962 Education; Public Schools; Consolidation of City and County Administrative Units; County Assuming City's Bonded Indebtedness Theretofore Incurred for School Purposes In order to consolidate county and city administrative school units into one administrative unit it is not necessary that the county assume the bonded indebtedness of the city, the proceeds of which have heretofore been spent for school purposes. If the county wishes to assume such bonded indebtedness of the city the question of such assumption should be sub-mitted to the voters in an election. 37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 37 9 March 1964 Education; Public Schools; Consolidation of Districts; Creation op New School Committee When two school districts are consolidated into one district the two old school committees cease to exist and the county board of education may appoint a new committee for the one consolidated district. 17 August 1962 Education; Public Schools; Consolidation op Districts Having Special Bonded Indebtedness With Districts Having no Bonded Indebtedness; Consolidation for Administrative Purposes; Approval of State Board of Education A school district which has voted a bonded indebtedness under a so-called County Act can be consolidated with a nontax district which levies no special tax for purposes of administration and attendance of pupils; the special tax district for bond purposes retains its boundaires unaltered for tax levying and debt service purposes. 17 February 1964 Eduction; Public Schools; Constitutional Law; Religion and Public Education; Prayer in Public Schools; Prayer on a Voluntary Basis The reading of the Bible and recitation of prayers in the public schools can be properly engaged in on a voluntary basis. It would be constitu-tionally invalid if such reading of the Bible and saying of prayers were by order of a school board or other State agency. 4 March 1964 Education; Public Schools; County Board op Education; Appointment of Member of County Board of Education to Inspect Boilers of the School System; Reimbursement for Services A county board of education is not authorized to appoint one of its mem-bers as a boiler inspector for the county schools and to pay him a per diem and travel expense; boiler inspection is under the supervision of the Depart-ment of Labor and such inspections must be made by licensed inspectors of that Department. 14 May 1964 Education; Public Schools; County Board of Education; Authority TO Provide Recreation Program During the Summer Months in Each School District of the County A county board of education has no authority to spend school funds to establish a recreational system in the various school districts of the county during the summer months and when the schpols are not in session, 38 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 6 September 1962 Education; Public Schools; Dismissal of Teacher for Violation of Traffic Laws A school teacher should not be dismissed for violations of traffic laws where no intoxication is involved upon the grounds that such violations are immoral or disreputable. 11 April 1964 Education; Public Schools; Duty of County Commissioners to Supply Office for County Schools; Quarters for County Board of Education A county board of education has the authority to supply adequate fa-cilities for the school system and this includes an office or office space in which the board of education can hold its meetings. 14 December 1962 Education; Public Schools; Election to Enlarge City Administrative Unit and Levy Supplemental Tax; Expense of Election; Right to Determine District Lines; Transfer of Property and Operation of Schools in Territory Added to City Administrative Unit When a school election is held to determine whether or not a district of a county administrative unit shall be added to a city administrative unit with an equalizing tax, all expenses of such election are the obligation of the city administrative unit; if such territory is added to the city adminis-trative unit, then the school buildings and facilities and the operation of same go to the city administrative unit but there may be an agreement as to the transfer of property. All exchanges of students between the two units and matters of tuition and attendance can be agreed upon in writing between the two boards and made a matter of record by resolution of each board. 26 February 1964 Education; Public Schools; Eligibility for Membership on Board of Education; Person Conducting Private Music School in Connection WITH Public School; Eligibility of Member of Local School Committee A person conducting a private music school in connection with a public school is not eligible to serve on a county board of education nor is a mem-ber of a local district committee eligible to serve on a county board of edu-cation. 11 April 1964 Education; Public Schools; Eligibility of Member of County Board of Education; Eligibility of Person Who is Superintendent of Workshop Training Center A person who is superintendent of a workshop school engaged in voca-tional instruction for mentally handicapped adults aboyg 16-years of age, 37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 39 which is operated under the rules and regulations of the State Board of Education, and which school has one teacher paid by the State, is not eligible for membership on the county board of education. 9 March 1964 Education; Public Schools; Expenditure of School Funds for Water AND Sewer System for School Building; Duty of School Authorities A county board of education is authorized to expend capital outlay funds in order to provide water, sewerage and other sanitary facilities for public school buildings. 6 September 1962 Education; Public Schools; Insurance; Liability of Board of Educa-tion FOR Injury to Student Sustaining Broken Ankle in Football Game A school board is not liable for injury received by a student who sustains a broken ankle in a football game; there is no statute or law under which a school board can voluntarily assume liability and pay hospital bills for such an injury. 28 April 1964 Education; Public Schools; Issuance of Bonds by City Administrative Unit for Capital Outlay Purposes; County-Wide Issue for Capital Outlay; Buncombe County Act and Cleveland County Act There can be a county-wide bond election for capital outlay purposes for all the schools in the county, including a city administrative unit; unless the Buncombe County Act or the Cleveland County Act is applicable to a county, then there is no machinery for a city administrative unit to issue its own capital outlay bonds. 10 April 1964 Education; Public Schools; Lease of School Property; Lease to Non-School Personnel of Vacant Apartment in Teacherage A county board of education may lease unused apartments in a teacherage to non-school personnel for a reasonable rental and for a term not in excess of one year. Such lease should contain a clause that the lease shall termi-nate if it again should be needed for public school purposes. 10 April 1964 Education; Public Schools; Length of School DAy; Authority op Board of Education to Dismiss Pupils for a Limited Time for Purpose OF Attending Agricultural Fair The board of education of a county has the authority to permit teachers and students to be dismissed from school for a lijiiited time in order to at-tend a county agricultural fair. 40 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 3 December 1962 Education; Public Schools; Liability of City Board of Education FOR Street Assessments City school boards are liable for special assessments made by municipal corporations on account of street improvements. These assessments are not taxes, and the Supreme Court of this State has held that city boards of education must pay such assessments. 10 April 1964 Education; Public Schools; Local Budgets; Transfer of Funds Within the School Budget from One Code to Another Within the current expense fund and within the capital outlay fund a board of education may transfer funds from one code number to the other if the board of county commissioners approves the transfer resolution. 12 May 1964 Education; Public Schools; Minimum Wage Law; Application op Minimum Wage Law to School Employees The Minimum Wage Act does not apply to county and city school boards and other agencies of government. 4 June 1964 Education; Public Schools; Payment of Tuition for Pupils Who Reside Out of District With Supplementary School Tax but Who Attend School in Such District; Validity of Tuition Fee The payment of tuition for pupils who live outside a special tax district but who attend schools located within a special tax district is legal and valid. 13 May 1964 Education; Public Schools; Principal; Assistant Principal; Authority For A principal of a school cannot delegate his duties to any other person. The school statutes do not provide for any such position as assistant prin-cipal. 6 November 1963 Education; Public Schools; Providing Basal and Supplemental Textbooks; County and City Units Withdrawing from State Systems A county or city administrative unit under the provisions of G. S. 115-220 cannot withdraw its elementary schools from the State rental program for supplementary books in the elei»ent3,ry schools without the approval of the State Board of Education, 37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 41 2 July 1962 Education; Public Schools; Purchase and Contract; Purchase of Mobile or Demountable Public School Classrooms The demountable classroom facilities which do not remain on wheels and are erected or set upon foundations may be purchased by school units according to Chapter 143 of the General Statutes, known as the Public Contracts Act, but the structural and functional soundness, safety and sanitation of such units must be in accordance with plans approved by the State Superintendent of Public Instruction; mobile units used for the same purpose, which remain on wheels, fall under G. S. 115-52, relating to the purchase of equipment, and must be purchased by school units on State contracts established by the Division of Purchase and Contract. 13 May 1964 Education; Public Schools; Regulations of Board of Education; Lowering Grade; Retroactive Application of Regulations A city or county school board has no authority to pass a regulation low-ering a pupil's grade as a form of disciplinary action; a city or county school board has no authority to pass regulations and make the same applicable in a retrospective manner. 14 May 1964 Education; Public Schools; Right of Children Discharged from State Correctional Schools to Attend the Public Schools Children discharged from correctional institutions of the State still have a right to attend the public schools. 19 December 1962 Education; Public Schools; Sale of Surplus School Property A County Board of Education may not transfer surplus real property without specific legislative authority or complying with G. S. 115-126. 4 June 1964 Education; Public Schools; School Committee; Election of Chairman; Resignation of Chairman and to Whom Made; Existence of Disagreement as to Election of Principal The resignation of a chairman of a school committee should be directed to the county board of education. When the superintendent and the school committee will not agree on the choice of a principal there exists a dis-agreement and the board of education should appoint and employ a prin-cipal; the county board of education determines whether or not a dis-agreement exists. 42 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 5 June 1964 Education; Public Schools; Special Funds; Ownership of Fund Provided for Special Purpose in High School After High School is Consolidated with other High Schools Funds deposited by a class of Future Farmers of America in the high school for the promotion of forestry study should be handled as special funds under G. S. 115-91 (c); if the high school is consolidated with other high schools into a central high school, then the funds follow the school's succession and should be used for the forestry project in the consolidated high school. 30 August 1962 Education; Public Schools; Supplemental Tax. Information to be Furnished to Governing Authority of City in Preparing Supplemental Tax Budget In making budget requests for supplemental funds city administrative units should present all financial data to the city governing authority, including items contained in the budget presented to the county. 1 June 1964 Education; Public Schools; Teachers Demonstration Schools; Authority of County Board of Education to Cooperate With Teachers College in Operating Demonstration School County boards of education have the authority to enter into agreements with teachers' colleges for the operation of demonstration schools; the final authority, however, for the employment of principals and teachers is vested in the county board of education and cannot be delegated or shared jointly with the president of a teachers' college. 30 January 1964 Education; Public Schools; Transportation of Pupils to Summer Schools Operated by the Public School System; Use of Public School Buses for such Purpose Public school buses can be used for the transportation of pupils to sum-mer schools of the public school system; boards of education, however, should procure liability insurance to protect the boards and pupils from negligent injuries and this should be required by regulations of the State Board of Education. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 43 5 June 1964 EDUCATION; Public Schools; Use of Laboratory Facilities of a Public School by a Non-Public School A county or city board of education has no legal authority to make its laboratory facilities available to a non-public or private school since school property must be devoted to public school use exclusively. 30 January 1964 Education; Public Schools; Use of School Buses for Transportation OF Pupils to Career Day Programs Public school buses and their transportation uses are controlled by G. S. 115-183; such public school buses cannot lawfully be used for career day programs which have no rational or legal connection with the public school system and pupils cannot be transported by public school buses for such purpose. 24 October 1963 Education; Public Schools; Use of Supplementary Tax Funds to Employ Extra Teacher, Supplement Salaries of Principals and Pay Salary of Coach or Physical Education Teacher Under the provisions of G. S. 115-116 supplementary tax funds can be used to employ an extra teacher as a librarian, relieve a principal of part-time classroom teaching duties, supplement salaries of classified principals, and pay a coach or physical education teacher during summer months in physical education program. 23 August 1962 Education; Sales of Articles in Dormitory of Institution of Higher Learning There is no statute prohibiting the sale of various articles in the dormi-tories of colleges and universities; with certain exceptions State depart-ments and institutions and their employees cannot engage in the sale of articles of commerce in competition with private individuals or private business; the board of trustees of the various colleges and universities have the authority to pass ordinances or regulations, either prohibiting or regu-lating the sale of articles by students in the various dormitories. 1 June 1964 Education; State Board of Higher Education; Gifts to State Board of Higher Education to Finance Surveys; Authority to Keep Gifts in Special Account other than Financial System of the State A State agency can receive a gift of funds for specific research or for a specific purpose and if the donor wishes, it may be kept in a separate 44 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. account and used by said agency for said purpose; any auditing of the fund would not relate to the purpose of the expenditure. ELECTIONS 21 November 1963 Elections; Absentee Ballots; Construction of Chapter 457, Session Laws of 1963 All applications for absentee ballots shall be approved or disapproved by the County Board of Elections at its meetings held for that purpose, and no absentee ballot shall be delivered in person or by mail to the voter until the application has been approved by a majority of the county board of elections. 1 November 1963 Elections; Compensation of Precinct Officials In primary and general elections, the county boards of elections have authority to appoint the judges, registrars, assistants, clerks and other precinct personnel, as authorized in Chapter 163 of the General Statutes, and such officers and personnel shall be compensated by the board of com-missioners of the respective counties as provided by statute. 2 November 1962 Elections; Corrupt Practice Act; Filing Statement of Expenditures and Contributions in General Election G. S. 163-195 requires any and all campaign committees to file with the Secretary of State a statement of all contributions and expenditures made in behalf of a candidate in any primary, general or special election; but if a candidate, in the general election, receives all contributions and makes all expenditures in his behalf, then such candidate does not have to file the statement of contributions and expenditures with the Secretary of State. 19 June 1964 Elections; Eligibility of Voter; Literacy Test; Persons Whose Names Appear on the Registration Books but Who are Unable to Pass Literacy Test Where it is suggested to a county board of elections that some of the persons registered cannot meet the literacy test a county board of elections operating under a loose-leaf and visible registration system can hear chal-lenges made to the registration of such persons and make its findings as to the eligibility of guch persons. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 45 29 January 1964 Elections; Filing Fee Required of Candidates in Primary; Clerk of Superior Court Compensation received by clerks of superior courts in their capacity as ex officio clerks of recorder's courts and judge of juvenile courts should not be included in the annual salary in computing the filing fee required of candidates for the office of clerk of superior court under G. S. 163-120. 31 July 1962 Elections; General; Substitution of Candidates After Primary; Nomination of Senatorial Candidates by District Executive Committee Under G. S. 163-113, when there is no rotation agreement among the counties comprising a senatorial district, selection of substitute nominee for State Senator is made by the Senatorial Executive Committee of the party in which the vacancy occurs. The terms of the proviso in G. S. 163-145, under which county boards of election may order substitution of candidates after the primary or convention "for good cause shown," is construed to mean that the county board has discretionary authority to determine whether reasons for necessity of substitution are bona fide, arose in good faith, and are so compelling that the candidate for whom substitution is sought would be prevented from representing his party effectively, or from serving in the office to which he might be elected. 22 January 1963 Elections; Inspection of Registration and Poll Books County registration books and poll books are deemed to be public records and subject to inspection by electors as provided by statute. 20 June 1963 Elections; Municipal ABC Election by Special Act; Beer and Wine Election A county or municipal election on the question of legal sale of beer or wine or both may not be held on the same date of a special liquor election in a municipality, or within 60 days of any general, special or primary election in the county or any municipality therein, until after July 1, 1963. G. S. 18-124 (f) specifies what conditions must be met in order for a beer and/or wine election to be held on the same date as an election for ABC stores. 2 April 1964 Elections; Primaries; Selection of Nominee; Write-in Vote Not Authorized in Primary The exclusive method for the nomination of a nominee of a political party is provided by Article 19, Chapter 163 of the General Statutes (Pri- 46 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. mary Laws), and a person may not become a nominee in the party primary by "write-in votes. 24 October 1962 Elections; Primaries; Write-in Votes Not Authorized While write-in votes are permitted in general elections, write-in votes are not authorized by law in primary elections. 14 May 1964 Elections; Registration; Ability to Read and Write Printing or block type copying of sections of the Constitution is sufficient to qualify an applicant under the written test for registration. 29 April 1964 Election Laws; Registration; Books Must be Held Open at Polling Places Registration books must be held open at polling places. They may not be kept open at any other place. 19 October 1962 Elections; Registration; Invalidity of "Grandfather Clause" The so-called Grandfather Clause contained in the North Carolina Con-stitution is invalid. 27 May 1964 Elections; Registration; Member of One Political Party Challenging Member of Another Political Party The right to challenge, as provided in Article 12, Chapter 163 of the General Statutes, pertains to the constitutional qualifications of the chal-lenged voter and, therefore, any elector may challenge the name of any person registered even though the challenger and the challenged voter are members of different political parties. 15 October 1962 Elections; Residence — Voter Moving to Another County One Week Prior to General Election A person may move his residence from one county to another and not be deprived of his right to vote in the precinct, ward or other election district from which he moved until thirty days after such removal. Art. VI, Sec. 2, N. C. Constitution; G. S. 163-25. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 47 2 November 1962 Elections; Write-in Votes for Township Office; Number Required A write-in candidate in the general election for county or township office or for the House of Representatives or for the State Senate, must receive as many as 5% of the votes cast for candidates for Congress in the town-ship or county in which said write-in candidate is running as a prerequisite for his being elected. EMINENT DOMAIN 17 September 1962 Eminent Domain; Condemnation; Boards of County Commissioners; Authority to Condemn Property for County Buildings Boards of county commissioners are possessed only with those powers which have been expressly conferred or which are necessarily implied for the proper exercise of the duties imposed upon them and may not exercise the power of condemnation unless expressly conferred by the Legislature, or the power of condemnation is necessarily inferred from the particular act involved. 17 May 1963 Eminent Domain; Hospitals; Power of Condemnation A hospital, owned by a County, has the power of condemnation as pro-vided in G. S. 131-28.14 to condemn private property for a hospital purpose. 25 April 1963 Eminent Domain; Local Modification of a General Law; Delegation of Power of Eminent Domain; School Law — Property A local or special act may take precedence over the general law with respect to the exercise of the power of eminent domain. The power of eminent domain can be delegated to a county or city school board by a local or special act. 3 December 1963 Eminent Domain; Municipalities; Sewerage and Waterworks; Condemnation of School Property by a Municipality for Sewage System Purposes In the exercise of a general power of eminent domain, a municipality may condemn lands belonging to a county school board where the lands are not in actual public use or not needed for school purposes, provided that the public use to be established thereon will not destroy the existing 48 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. use of the remainder of the tract or interfere with the existing use to such an extent as is tantamount to a further taking or destruction. 4 May 1964 Eminent Domain; Precedence of Trial The provisions of G. S. 40-33 providing for precedence of condemnation trial apply only to proceedings instituted under the provisions of Article 3 of Chapter 40 of the General Statutes. 19 May 1964 Eminent Domain; Right of Municipality to Condemn Property for State Highway System Street A municipality is authorized to condemn right of way for State Highway System strees and may bring the action in the name of the municipality. 7 May 1964 Eminent Domain; State Highway Commission; Highway Right of Way The State Highway Commission has no authority to create a property interest in a private party which would be superior to the easement of the State for highway purposes in lands acquired for right of way. An ease-ment is a property interest, the taking of which requires the payment of just compensation. EMPLOYMENT SECURITY ACT 20 January 1964 Employment Security Act; Employers; Notice to Employers; Validity OF Notices to Attorneys in Fact Purporting to Represent Employers The various statutes in the Employment Security Act requiring that notices, forms and other documents be sent to employers mean that such notices, forms and documents shall be sent to the employers themselves and not to consultants, accountants and others who hold power of attorney to act as attorney in fact. EMPLOYMENT SECURITY COMMISSION 2 April 1964 Employment Security Commission; Clerks of Court; Fees; Docketing E.S.C. Certificates; Statutory Construction Chapter 288 of the Session Laws of 1945 prescribing a fee of $1.00 for 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 49 the clerk of the superior court for indexing and docketing Employment Se-curity Commission certificates, is applicable in every county in the State unless said statute has specifically, by reference thereto, been amended or modified. ESTATES 31 December 1963 Estates; Administration of Estates; Survivor's Allowance Bank accounts and savings accounts would be proper assets of the dece-dent's estate from which to award the survivor's year's allowance pursuant to Article 4 of Chapter 30 of the General Statutes of North Carolina. EXECUTION 21 February 1963 Execution; Vested Remainder in Real Property; Homestead Exemption The vested remainder interest of a nonresident in real property in this State may be levied upon and sold at execution, and such nonresident is not entitled to a homestead exemption. EXECUTORS AND ADMINISTRATORS 11 July 1963 Executors and Administrators; Assets; Growing Crops Crops planted and ungathered at the decedent's death are considered personal assets of the estate of the decedent. 11 July 1963 Executors and Administrators; Claim by an Educational Institution; Priority A claim by an educational institution against the estate of a decedent would be considered a debt of the fourth class and entitled to priority in payment over the general creditors of the estate. 50 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 6 July 1962 Executors and Administrators; Estates of Less Than $1,000.00; Receipt for Contents of Safe Deposit Box Where the Clerk of Superior Court administrates the assets of estates of less than $1,000.00, he would be the proper person to give a receipt for the contents of a safe deposit box. 7 January 1963 Executors and Administrators; Final Accounts; Compelling Accounting The clerk of the superior court can require an accounting of the pro-ceeds of a wrongful death action prior to the expiration of two years after qualification of an administrator where the estate has otherwise been fully administered. 29 June 1964 Executors and Administrators; Intestate Succession Act; Determination of Shares of Brothers and Sisters and Their Lineal Descendants Surviving nephews and nieces by deceased brothers or sisters of the intestate share equally in that portion of the intestate's property not passing to surviving brothers and sisters of the intestate. 8 May 1963 Executors and Administrators; Intestate Succession Act; Distribution to Children and Grandchildren The Intestate Succession Act, which became effective July 1, 1960, pro-vides that the distribution of property in all classes shall be on a per capita basis. 17 December 1962 Executors and Administrators; Legal Fees; Estate Tax Controversy Involving Nonprobative Assets of Decedent Where an executor employs counsel to assist him in the administration of the estate, the contract is personal and not a debt against the decedent's estate. The executor must pay it, and if the disbursement were reasonably necessary to conserve the estate, it will be allowed him in settlement of his account as a necessary expense of administering the estate. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 51 31 December 1963 Executors and Administrators; Nonresident; Ancillary Administration Where a nonresident dies leaving personal property in this State, an ancillary administration is required in the county where the property is located. 7 August 1962 Executors and Administrators; Sale of Real Property to Make Assets for Payment of Debts; Necessary Parties There is no requirement that the spouses of heirs or devisees be joined as parties defendant in a special proceeding for the sale of real property owned by the testator to make assets for the payment of his debts. i - 24 January 1964 Executors and Administrators; Sale of Eeal Property to Make Assets; Rights of Judgment Creditors of Devisees Where real property of a decedent is sold by his personal representative to make assets to pay debts of the estate, judgment creditors of the heirs or devisees of such real property may assert their interest in any surplus proceeds prior to distribution of such proceeds by the personal representa-tive. Linker v. Linker, 213 N. C. 351. FAIRS 7 September 1962 Fairs; Agricultural; Circuses; Conflicts in Dates A circus does not come within the purview of G. S. 106-516.1, which prohibits the exhibition of carnival or shows "of like kind" within 30 days prior to a regularly advertised agricultural fair. Circus performances as they relate to conflicts in dates with agricultural fairs are governed by G. S. 106-519 and G. S. 105-38. FIRE PROTECTION 19 March 1964 Fire Protection; Departments; Rural Fire Districts; Removing Portion of District There is no statutory procedure for cutting off and removing a portion of a rural fire protection district. 52 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 19 July 1962 Fire Protection; Districts; Election; Petition A petition signed by the requisite number of property owners, addressed to the county commissioners, asking for the creation of a fire protection district and for the levy of a tax in support thereof "of not exceeding five cents (54) on the one hundred dollar ($100.00) valuation" is valid, although the statute sets a maximum rate of taxation at 15(!S on the $100,00 valuation. 9 November 1962 Fire Protection; Firemen; Firemen's Pension Fund; Retiring After 30 Years of Service but Before Reaching the Age op 55 Years Under the provisions of G. S. 118-25, a fireman v^^ho is 51 years of age, has had more than 30 years of service in a department and who is other-wise eligible, may retire before age 55 and continue his membership in the North Carolina Firemen's Pension Fund by making his monthly payments until he reaches the age of 55 or until he has made monthly payments into the fund for 30 years, whichever is the earlier. 7 December 1962 Fire Protection; Oath of Office of Commissioners of Rural Fire Protection Districts The oaths of office of commissioners of rural fire protection districts established pursuant to G. S. 69-25.1 et seq. are prescribed by G. S. 11-6, 11-7 and 11-11. GUARDIANS 3 July 1962 GUARDIANS; Guardian and Ward; Foreign Guardian; Sale of Realty and Removal of Proceeds Real property located in North Carolina and belonging to a nonresident ward may be sold or otherwise converted into personalty as an incident to a proceeding in which a foreign guardian seeks removal of the ward's personalty from North Carolina to the state of the ward's residence. 4 September 1962 Guardians; Guardian and Ward; Parent's Duty to Support Where Child Has Independent Estate Where a father is dead and the mother has adequate financial resources, she is responsible for the support, maintenance and education of the child even though the child might have a separate estate of its own. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 53 3 January 1964 Guardians; Investment op Funds; Diversified Common Stocks A guardian may invest the funds of his ward in diversified common stocks provided he uses good faith and due diligence in making such invest-ments. HEALTH 3 May 1963 Health; Immunization Against Certain Diseases; Kindergartens Sections 130-91 and 130-93.1 require immunization of children against certain communicable diseases before being allowed to enter school, and the word "school" as used in this context would include kindergartens. 5 December 1963 Health; Local Board of Health; Compulsory Vaccination or Immunization A local board of health has authority to adopt reasonable rules and regu-lations requiring "booster immunizations" with respect to certain infections or diseases such as tetanus, diphtheria and poliomyelitis. 1 October 1962 Health; State Board of Health; Nursing Homes; Licensing; County-Owned Nursing Homes County-owned nursing homes are subject to the provisions of Chapter 130 of the General Statutes relating to the licensing of nursing homes. 22 March 1963 Health; State Board of Health; Polio Immunization; Schools; Immunization Before Admission to School The law requires proof of polio immunization before a child can enter or attend any public, private or parochial school in this State (except for the sections relating to the child's health or religious objections). 13 March 1964 Health; State Board of Health; Restaurants; Regulations; Free Toilet Facilities The regulations of the State Board of Health requiring that free toilet facilities be made available for employees and patrons of restaurants and 54 BIENNIAL REPORT OF THE ATTORNEY GENERAL, [VOL. certain other foodhandling establishments are valid and authorized by Sec-tion 72-46 of the General Statutes. 31 March 1964 Health; State Board op Health; Tuberculosis; Spreading of Communicable Tuberculosis A person who has tuberculosis in an active, infectious stage is guilty of a criminal law violation if he refuses to submit to appropriate treatment. 8 April 1963 Health; Tuberculosis Patients; Right to Home Treatment With respect to tuberculous persons, when there is no danger to the public or to other individuals as determined by the health director, the tuberculous person may receive treatment at home. HIGHWAYS 29 April 1963 Highways; Extension of Blue Ridge Parkway; Enabling Legislation Should the Federal Government authorize a spur to be built extending the Blue Ridge Parkway from a point in North Carolina near Beach Gap to the Georgia State line, no new legislation is necessary in North Carolina in order for the State of North Carolina to acquire the necessary right of way for said extension due to the provisions of G. S. 136-19. 20 May 1964 Highways; Signing of Dual Lanes The use of signs designated "Divided Highway" and "Keep Right" at the beginning of a dual lane highway, where lanes are separated by a median, and one-way traffic only is permitted on each of the separate lanes, is in conformance with the Manual on Uniform Traffic Control Devices; and is an appropriate sign within the meaning of G. S. 20-165.1 indicating the direction of traffic on a one-way portion of the dual lane highway. HOSPITALS 28 May 1964 Hospitals; Counties; Public Bidding; Purchase of Insurance ON Hospitals In obtaining insurance on county-owned buildings, it is not necessary to follow the public bidding provisions of Article 8 of Chapter 143 of the General Statutes. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 55 17 May 1963 Hospitals; Eminent Domain and Condemnation Wayne County Memorial Hospital, owned by the County, has the power of condemnation as provided in G. S. 131-28.14 to condemn private property for a hospital purpose. 10 April 1963 Hospitals; Mental Institutions; Disclosure of Contents of Records; Names of Patients Listed in Psychiatric Register Names of patients listed in the Hospitals Board of Control psychiatric register are privileged to the extent provided in G. S. 122-8.1 and G. S. 8-53. 12 April 1963 Hospitals; Public; Hospital District; Issuance of Bonds Article 13C of Chapter 131 of the General Statutes does not restrict a hospital district to a single bond election. Bond elections may be had from time to time if petitioned for. 27 September 1963 Hospitals; Staff Physicians in State Hospitals; Liability for Results of Official Acts A State hospital is classified as a charitable institution and would not be liable for the negligence of its servants and employees provided they had used due care in their selection and retention. 5 April 1963 Hospitals; State Hospitals; Educational Institutions; Infirmaries The Hospital Licensing Act applies to all State hospitals but not to edu-cational institutional infirmaries. INSANE AND INCOMPETENTS 9 July 1962 Insane and Incompetents; Certifying Physicians in Connection with Commitment of Alleged Mentally Disordered Persons to State Hospitals Being a staff member of a State institution does not disqualify a physi-cian, who otherwise meets the requirements of G. S. 122-43, from making certification of alleged mentally disordered persons for commitment to 56 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. State hospitals, provided the certifying physician is a member of the staff of the institution to which commitment is contemplated. 22 October 1963 Insane and Incompetents; Commitment Procedure; Notice of Hearing For persons judicially committed to mental institutions prior to July 1, 1963, the procedure as it existed prior to the 1963 Amendments, which be-came effective July 1, 1963, is applicable. 24 September 1962 Insane and Incompetents; Inmates of State Hospitals; Procedure When Surgical Operations on Inmates are Necessary Under North Carolina G. S. 130-191, medical staff of any State hospitals or other State institutions is authorized to operate on inmates where neces-sary to improve inmate's physical or mental condition. Decision to be made by chief medical officer of institution with approval of superintendent and with advice of institution's medical staff. No operation to be made without consent of inmate or, if inmate non compus mentis, by responsible member of family or a guardian, 22 October 1963 Insane and Incompetents; Non-Resident Infant Having Real Property in this State; Guardianship The Clerk of Superior Court of a county in North Carolina in which there is located real estate owned by a non-resident infant, is authorized, upon proper showing that the infant has a guardian in his or her state and does not have a guardian in North Carolina, to appoint an ancillary guardian in the North Carolina clerk's county where the property is located. N. C. G. S. 33-31.2. 20 March 1963 Insane and Incompetents; Persons Already in Hospital; Hearing Before Clerk as to Indefinite Commitment; Venue and Jurisdictions Where a person has been committed to mental institution for temporary period of observation, the hearing at the end of that period on the question of final commitment must be held by the clerk of and in county of person's residence, if known; otherwise, hearing must be held by clerk of and in county who ordered initial, temporary commitment. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 57 INSURANCE 3 June 1963 Insurance; Contract; Validity of Certified Copy of General Power of Attorney Opinion given that a certified copy of the general power of attorney-issued in conjunction with a guaranty contract by an insurance company is valid and binding upon the insurance company if the corporate seal is attached thereto, citing G. S. 55-36 (c) and (d). 22 May 1964 Insurance; Debt Cancellation Contracts; National Banks National banks engaging in the insurance business in this State are sub-ject to the provisions of Chapter 58 of the General Statutes of North Carolina and such banks must comply with the insurance laws of North Carolina in negotiating debt cancellation contracts. V . 6 March 1963 Insurance; Group Life; Putnam Plan, Sale of Securities With Group Life Insurance Sale of securities under a plan which includes group life insurance with the seller of the securities as the insured and resulting in distribution of life insurance proceeds to the seller at the death of the purchaser and where the purchaser is not obligated to continue payments for any period of time or for any definite amount, is one in which the seller has no insur-able interest in the life of the purchaser of the securities. '^- 1 November 1962 Insurance; Hospital, Medical and Dental Service Corporations; Donations for Religiols, Charitable, Scientific or Educational Purposes Not Allowed Hospital, medical and dental service corporations organized and oper-ated under Chapter 57 of the General Statutes are not permitted by law to make donations for religious, charitable, scientific or educational pur-poses. 16 August 1962 Insurance; Offering Inducements, Other Than Provided in the Policy, to American Legion Post Members Prohibited; Soliciting Insurance by Unlicensed Agents; Violation op Insurance Laws Plan of an insurance agent to use unlicensed members of an American Legion Post to solicit insurance business from Post members and to donate 58 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 50% of the first quarterly premium to the American Legion Post would, if consummated, violate the anti-rebate statute, G. S. 58-44.5, and G. S. 58-51.3 prohibiting use of unlicensed persons to solicit insurance business. 5 August 1963 Insurance; State Employees' Group Insurance; Accumulated Funds The State Highway Commission, in deducting sums from employees' salaries for payment of group insurance premiums, acts as a trustee for the employee, and any sums deducted in excess of the amount required to pay the premium should be returned to the employee from whom it was received. JURIES; JURORS 24 September 1963 Juries; Jurors; Challenges; Special Venire; Criminal Law A special venireman drawn from the jury box is on the same standing as a regular juror and is not subject to challenge for cause for having served on the jury within two years prior to the term. A special venireman who has not been drawn from the jury box is sub-ject to the same challenges for cause as tales jurors. STATE v LEVY, 187 NC 58L LABOR 3 December 1963 Labor; Department of Labor; Hours of Work for Women in Certain Industries; Waitresses in Hotels; Motel Dining Rooms and Coffee Shops While employees of hotels and motels are exempt from G. S. 95-17, never-theless, waitresses in hotels, motel dining rooms and coffee shops are covered by G. S. 95-27 restricting their work hours to ten hours per day and fifty-five hours per week. 18 February 1964 Labor; Department of Labor; North Carolina Voluntary Apprenticeship Act; State Apprenticeship Council; Federal Regula-tions AS to Nondiscrimination in Apprenticeship and Training State Apprenticeship Councils, with the approval of the Commissioner of Labor, can adopt federal standards as to nondiscrimination in appren- 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 59 ticeship agreements but are not compelled to do so; it is suggested that after consultation with employers such standards might be adopted for projects under federal contract or projects which are developed and con-structed in whole or in part by federal funds. LOTTERIES 4 March 1963 Lotteries; Pinball Machines The possession, sale, use or operation of pinball machines is not per-mitted in North Carolina. See G. S. 14-306. 28 April 1964 Lotteries; What Constitutes a Lottery In order to constitute a lottery in this State, there must be three elements present, to wit: (1) a prize; (2) a consideration; and (3) the winner of the prize is to be determined by some formula of chance. The rule is that, where the winner of a contest is partly determined by chance and partly by the skill of the contestant, the scheme is a lottery, provided the element of chance is predominant. On the other hand, if the element of skill predominates over that of chance, the scheme or plan is not a lottery. MARRIAGE 13 July 1962 Marriage; Authority of a Justice of the Peace to Perform a Marriage Ceremony Outside his County A justice of the peace may not perform a marriage ceremony in a county other than his own. 19 November 1963 Marriage; Authority to Perform Marriage Ceremony Under the provisions of G. S. 51-1, a marriage ceremony may be per-formed in this State in the presence of an ordained minister of any religious denomination, minister authorized by his church, or of a justice of the peace. 60 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 3 September 1963 Marriage; Chinese; Residence There is no law in this State prohibiting the marriage of a Chinese resi-dent to a white resident. It is not necessary to be a resident of North Carolina in order to get married in this State. 2 January 1964 Marriage; Licenses; Correction of Mistakes in Name Section 51-18.1 of the General Statutes authorizes the register of deeds to correct errors as to names on applications for marriage licenses, mar-riage licenses issued thereunder, and returns or certificates of officiating officers. 3 June 1964 Marriage; Licenses; Failure to Return; Validity of Marriage Unaffected The validity of a marriage is not affected by the failure of the person performing the ceremony to return the license to the Register of Deeds. 7 October 1963 Marriage; Out-of-State Marriage; N. C. Residents; Filing op Certificate with a Register of Deeds North Carolina residents who marry outside the State must, within 60 days after return to this State, file a certificate showing compliance with the North Carolina statutes relating to premarital health examinations. 5 November 1963 Marriage; Parents' Consent; Which Parent When a person of sixteen years of age and under eighteen is residing with both his father and mother, the written consent of either parent fulfills the statutory requirement of written consent. 24 June 1964 Marriage; Proxy Marriage; Not Authorized in North Carolina North Carolina law does not authorize absentee or proxy marriage cere-monies to be performed in this State. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 61 MERIT SYSTEM COUNCIL 7 August 1962 Merit System Council; Rule; Political Activity; Caseworker Elected Member of Town Board of Aldermen in Non-Political Election; Hatch Act Neither the Federal statutes nor the Merit System Rule prohibits a per-son employed under the Merit System from serving as a member of the board of aldermen of a town where the election is nonpartisan and is not related to political parties. MILITIA 23 January 1964 Militia ; Six Months' Active Duty for Training; Applicability of Soldiers' and Sailors' Civil Relief Act The provisions of the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. App. §§501-548, 560-590) apply to a member of the Army National Guard while he undergoes the required six-months' period of active duty for training. MOTOR VEHICLES 24 April 1963 Motor Vehicles ; Driver's License ; Chauffeurs ; Farmers Hauling Labor Under G. S. 20-6 farmers hauling farm labor on trucks of over nine passenger capacity are required to possess chauffeur's license. 28 November 1962 Motor Vehicles; Driver's License; Chauffeurs; Nonresident Employed BY North Carolina Corporation A nonresident chauffeur employed by a North Carolina corporation would be required to possess a valid North Carolina chauffeur's license in order to operate trucks of his employer over the highways of this State notwithstanding the fact that such nonresident may possess a valid chauffeur's license from his state of residence. 62 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. 2 April 1963 Motor Vehicles; Driver's License; Driving While License Suspended; FAILURE TO File Proof of Financial Responsibility Following Stated Period of Suspension A person Mrho operates a motor vehicle after the stated period of suspen-sion of his license has expired but before filing proof of financial responsi-bility would be chargeable under G. S. 20-28 (a) for driving while license suspended. His punishment upon conviction of such offense would depend upon whether or not his license had been reinstated by the Department of Motor Vehicles following the stated period of suspension. If his license had not been reinstated, he would be punishable as provided for persons convicted of driving while license suspended. On the other hand, if his license had been reinstated following the stated period of suspension and he had failed to maintain financial responsibility subsequent to the loss of his license for this cause, he would be punishable as for operating with no operator's license. 12 March 1963 Motor Vehicles; Driver's License; Driving While License Suspended; Penalty A restoree of a suspended or revoked operator's license, within the con-templation of G. S. 20-28, is a person whose license has been reinstated by the Department of Motor Vehicles for some period of time following the stated period of suspension contained in the suspension or revocation order of the Commissioner of Motor Vehicles. Mere expiration of the stated period of suspension contained in the Commissioner's suspension order does not constitute such person a restoree. 25 September 1962 Motor Vehicles; Driver's License; Nonresident Operator's License; Fifteen-Year-Old Minors A minor fifteen years of age, even though properly licensed in his home state, may not operate a motor vehicle on the highways of North Carolina. 27 September 1962 Motor Vehicles ; Driver's License ; Operation of Farm Tractor by Minor A farm tractor is a "motor vehicle" as that term is defined in the Uniform Driver's License Act and a person who permits an unlicensed minor to operate a farm tractor contrary to the provisions of the Uniform Driver's License Act would be in violation of G. S. 20-34. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 63 26 November 1962 Motor Vehicles; Driver's License; Resident Driving on Out-of-State License A resident of North Carolina may not operate a motor vehicle over the highways of this State on an out-of-state driver's license even though such operation may amount to only a small proportion of the total miles driven by the North Carolina resident. 24 October 1963 Motor Vehicles; Engaging in Business as Motor Vehicle Dealer An automobile rental agency, which places its own rental cars on its lot for sale after it is determined that they need to replace them with newer models for rental purposes, is not engaging in the sale of motor vehicles, requiring the payment of a license privilege tax; neither does it subject them to the Motor Vehicle Dealers Licensing Law. - 18 March 1963 Motor Vehicles; Interpretation of G. S. 20-158 (a) ; Stopping at a Stop Sign and Yielding Right of Way G. S. 20-158 (a) describes two offenses rather than two elements of the same offense. The statute is violated where a motorist either fails to stop at a stop sign or, having stopped, fails to yield right of way. 22 January 1963 Motor Vehicles; Municipal Regulations; Direction Signs at Intersections Direction signs Installed by local authorities pursuant to G. S. 20-153 (c) must be authorized by ordinance of the local governing body in the same manner as other traffic ordinances are adopted. 25 October 1963 Motor Vehicles; Operator of Motor Vehicle Having a Non-Owner's Liability Policy; Owner Permitting Same to be Operated Without Liability Insurance A licensed operator of a motor vehicle who has a non-owner's liability insurance policy does not violate any laws of this State by operating a motor vehicle owned by another person and which vehicle is not covered by liability insurance through the owner. The owner of a motor vehicle, which is registered or required to be registered in this State, who either operates or permits such motor vehicle to be operated and does not have in full force and effect the financial 64 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. responsibility required by Article 13 of Chapter 20 of the General Statutes of North Carolina would be guilty of violating G. S. 20-313 and subject to punishment provided thereby. A justice of the peace would not have jurisdiction to try any person violating the provisions of G. S. 20-313. 18 June 1963 Motor Vehicles; Red Lights on Automobiles Owned by Members op Rescue Squads Use of red lights on privately owned automobiles of members of rescue squads are prohibited and the operator of rescue squad trucks must comply with speed restrictions and regulations. 9 March 1964 Motor Vehicles ; Registration ; Air Compressors and Welding Machines Permanently Mounted on Wheels for Transporting From One Job to Another An air compressor or welding machine permanently mounted on wheels for the transporting of same from one job to another is not subject to the registration laws of Chapter 20 of the General Statutes of North Carolina, unless the same is placed upon a trailer for such transportation, in which event the trailer would be subject to registration. 24 August 1962 Motor Vehicles; Registration; Dealer's Tags A person who operates a motor vehicle owned by a dealer and displaying dealer tags for the purpose of road testing it must have in his possession a permit from the dealer for a period not to exceed 96 hours, unless accom-panied by the dealer or an employee of the dealer. Operation without the permit is in violation of the motor vehicle registration laws, and a dealer who knowingly permits such operation has himself violated the law. 5 July 1962 Motor Vehicles; Suspended Sentence; Suspension of License A Recorder's Court Judge may as a condition of suspension of a sentence prohibit the defendant from operating a motor vehicle for a reasonable period of time. 37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 65 MUNICIPAL CORPORATIONS 7 May 1964 Municipal Corporations; Abandonment of Streets within Newly Annexed Areas by the Highway Commission The State Highway Commission under G. S. 136-66.2 (f) can abandon streets which Avere not within municipalities or were not on the State Highway System as of July 1, 1959, without the consent of the municipality. 29 May 1964 Municipal Corporations; Acquiring Property Outside Corporate Limits FOR Public Park and Receational use A municipality may accept property outside its corporate limits for park purposes when said park is operated in a governmental capacity for the direct benefit of the citizens of the m.unicipality. 31 July 1962 Municipal Corporations; Acquisition of Personal Property; Lease With Option to Purchase A municipality may acquire personal property by lease with option to purchase. 19 August 1963 Municipal Corporations; Acquisition of Sewer Easement by Adverse Possession A municipality may acquire a sewage easement by prescription if it can prove all elements necessary to be shown as in the case of the acquisition of title to real property by adverse possession. The municipality must have been in possession for a period of at least twenty years, unless otherwise provided in the municipal charter, and must bear the burden of proving that the user was adverse rather than permissive. 4 March 1963 Municipal Corporations; Ad Valorem Taxes; Penalty for Late Listing The Machinery Act provides a penalty of 10% for late listing of property for ad valorem taxes, with a minimum penalty of $1.00. 4 April 1963 Municipal Corporations; Amendment of City Charter; Construction OF City Streets G. S. 160-200, Subsection 11, gives a municipal corporation control over the streets in the municipal corporation. 66 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. Article VII, Subsection 13 of the Constitution, states that the General Assembly shall have control over the acts of a municipal corporation. 6 September 1962 Municipal Corporations; Appropriation from Nontax Funds for Recreational Purposes; Purchase op Athletic Uniforms A municipality may law^fully spend nontax funds to purchase athletic uniforms for Little League ballplayers organized in the municipality. 30 October 1963 Municipal Corporations; Authority to Give, Sell or Lease Municipal Property to Chamber of Commerce; Erection of Building Owned by Chamber of Commerce on City Property A municipality is not authorized to donate, sell or lease property held in trust for the city or proprety devoted to a governmental use. A municipality may not donate its property or grant privileges to one class of persons not to be enjoyed by all except in consideration of public service. 26 September 1962 Municipal Corporations; Authority to Purchase Insurance in Mutual Insurance Companies Counties, municipalities, and boards of education may purchase insurance in mutual insurance companies. 31 January 1964 Municipal Corporations; Barber Shops; Regulation of Hours Municipalities have authority to regulate the hours which barber shops operate. 15 May 1964 Municipal Corporations; Civil Defense; Authority of City Council op High Point and the Civil Service Commission of High Point as it Relates to the Local Director of Civil Defense Pursuant to Chapter 166 of the North Carolina General Statutes, the local governing body of a political subdivision has the authority to hire and remove the local civil defense director and this authority shall not be delegated to any commission or agency within the political subdivision. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 67 15 February 1964 Municipal Corporations; Constitutional Law; Validity of Ordinance OF Chapel Hill Regulating Picketing A town ordinance regulating the time, place and manner of picketing is a valid regulation of the use of the streets of the Town under authority delegated to the Board of Aldermen by the General Assembly; the ordi-nance does not violate freedom of speech and assembly as guaranteed by the First Amendment and made applicable to the States through the Fourteenth Amendment; the Ordinance is neutral and does not discriminate against persons or groups because of race, color or creed; the ordinance does not violate the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment. 2 December 1963 Municipal Corporations; Counties; Water and Sewage Services; Joint Projects Article 24 of Chapter 153 of the General Statutes authorizes the estab-lishment of water and sewer lines jointly by towns and any county to industrial plant sites located outside the municipal limits of a town. 31 July 1963 Municipal Corporations; Counties; Water Supply; No Authority in County to Compel Fluoridation A board of county commissioners has no authority to compel a muni-pality to fluoridate its water supply. s 12 July 1963 Municipal Corporations; Drainage Districts; Applicability of County Fiscal Control Act Under the provisions of G. S. 153-114 (a), the County Fiscal Control Act is applicable to drainage districts. 7 May 1964 Municipal Corporations; Drainage Districts; Powers of Commissioners, Authority to Permit Use op Dikes by Private Persons as Haulways FOR Lumbering Operations Commissioners of a drainage district have no authority to give permis-sion to a private person to transport timber and timber products over a dike constructed and maintained by the drainage district. 68 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 3 September 1962 Municipal Corporations; Easement for Sewer Lines; Compensation FOR Easement; No Right to Furnish Free Sewer Service A municipality does not have authority to agree to furnish a certain property owner sewer service free for an indefinite period as compensation for the sewer line easement across the property. 3 December 1963 Municipal Corporations; Eminent Domain; Sewerage and Waterworks; Condemnation of School Property by a Municipality for Sewage System Purposes In the exercise of a general power of eminent domain, a municipality may condemn lands belonging to a county school board where the lands are not in actual public use or not needed for school purposes, provided that the public use to be established thereon will not destroy the existing use of the remainder of the tract or interfere with the existing use to such an extent as is tantamount to a further taking or destruction. 4 January 1963 Municipal Corporations; Extension of Corporate Limits; Annexation Proceedings The new annexation proceedings statutes for municipalities enacted as Chapters 1009 and 1010 of the Session Laws of 1959 were not prospectively repealed by the provisions of Section 11 of both acts as immaterially amended in 1961 regardless of the later codification of the two basic acts as Parts 2 and 3 of Article 36 of Chapter 160 of the General Statutes as the same appear in the 1961 Cumulative Supplement to Volume 3C. 5 September 1962 Municipal Corporations; Extension of Corporate Limits; Meaning of Word "Contiguous" An area to be annexed by a municipality, which is connected to the exist-ing boundaries of the municipality merely by the right-of-way of a State highway, is not "contiguous" to the municipality within the meaning of G. S. 160-452. 5 December 1962 Municipal Corporations; Fire Districts; Extension of Limits The mere extension of a city's fire district so as to include an area zoned differently than the area within the existing fire district does not auto-matically extend the zoning classification of the existing fire district into the new area. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 69 5 March 1964 Municipal Corporations; Fire Protection; Contract With County; Municipal Liability Outside City Limits When a municipality authorizes its fire department to answer a call outside the city limits, the city has the same privileges and immunities as if a call were being answered within the city limits. 2 January 1963 Municipal Corporations; Governing Boards of Municipalities are Required to Keep a Record of all Meetings Governing bodies of municipalities, including town clerks, are required to keep a full and accurate journal of all its proceedings, which journal shall be open to public inspection. See G. S. 160-269. 17 August 1962 Municipal Corporations; Industrial Development; Appropriation of Funds for Advertising Purposes Unless a local law provides otherwise, a municipality does not have authority to expend public funds to advertise the city and attract industry except pursuant to the provisions of Chapter 158 of the General Statutes. 24 July 1963 Municipal Corporations; Jails; Contracts to House Prisoners of Another Town A municipality has implied authority to contract with another municipal-ity for use of its jail facilities. 28 November 1962 Municipal Corporations; Jurisdiction; Regulation of Railroad Crossings; Railroad Crossing Protection Municipalities have jurisdiction over requiring safety devices at railroad crossings not on the State highway system, but the Highway Commission has exclusive jurisdiction in this regard where crossings are on the high-way system. 23 May 1963 Municipal Corporations; Meetings of City Council; Open Sessions; Live Broadcasting of Proceedings Under the general laws of this State, meetings of a city governing body must be open to the general public. 70 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 29 November 1962 Municipal Corporations; Municipal Police Officers; Arrest of Violators Outside Municipal Limits A municipal police officer in hot pursuit of a person found to be violat-ing the liquor laws of this State may pursue such violator beyond the municipal limits and arrest the violator. G. S. 18-45 (o). 11 July 1962 Municipal Corporations; Officers; Residence Requirements of Chief OF Volunteer Fire Department and City Policeman A fire chief of a municipal volunteer fire department and a city police-man are public officers and must be residents of the municipality in which they serve. - 24 February 1964 Municipal Corporations; Ordinances; Authority op City Council to Enact So-Called Public Accommodations Ordinance A municipal corporation is not legally authorized to enact a public accom-modations ordinance requiring the owner or operator of a hotel, motel, restaurant or theater to admit persons to the use of his accommodations and facilities regardless of race, color or creed; such an ordinance, if enacted, would take away the individual choice of the owner or operator and would be contrary to our trespass law (G. S. 14-134). 16 December 1963 Municipal Corporations; Ordinances; Subdivisions An incorporated city or town which has been exempted from the pro-visions of G. S. 160-226, et seq., pertaining to subdivision ordin
Object Description
Description
Title | Biennial report of the Attorney-General of the State of North Carolina |
Other Title | Biennial report and opinions of the Attorney General, State of North Carolina |
Contributor | North Carolina. Department of Justice. |
Date | 1962; 1963; 1964 |
Subjects |
Attorneys general's opinions--North Carolina Automobiles--Transportation--Law and legislation Criminal law Education Election law Genealogy Judicial statistics--North Carolina Local government Public health Public welfare Public officers--North Carolina Taxation--Law and legislation |
Place | North Carolina, United States |
Time Period | (1954-1971) Civil Rights era |
Description | Title varies slightly.; Report period irregular.; On July 1, 1939 the Attorney General became head of the newly created Dept. of Justice. |
Publisher | Raleigh :N.C. Dept. of Justice,1899-[1970](Guy V. Barnes, printer to Governor's Council) |
Agency-Current | North Carolina Department of Justice |
Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
Physical Characteristics | 37 v. ;23 cm. |
Collection | Health Sciences Library. University of North Carolina at Chapel Hill |
Type | text |
Language | English |
Format | Reports |
Digital Characteristics-A | 11690 KB; 146 p. |
Digital Collection |
Ensuring Democracy through Digital Access, a North Carolina LSTA-funded grant project North Carolina Digital State Documents Collection |
Digital Format | application/pdf |
Title Replaced By | North Carolina..Department of Justice..North Carolina Attorney General reports**0364-362X |
Title Replaces | North Carolina.Department of Justice..Attorney General's report |
Audience | All |
Pres File Name-M | pubs_edp_biennialreportattorneygeneral19621964.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_edp\images_master\ |
Full Text | BIENNIAL HEP or rmm . T T O R N E Y G t: 1^ ti or THi T A T' E OF N O R. T H C A 1^ O L i N A VOLUME i7 THE LIBRARY OF THE UNIVERSITY OF NORTH CAROLINA THE COLLECTION OF NORTH CAROLINIANA C3U0 N87a V.37 I962-6U UNIVERSITY OF N C AT CHAPEL HILL 00033947212 This BOOK may be kept out ONE MONTH unless a recall notice is sent to you. A book may be renewed only once; it must be brought to the library for renewal. Digitized by the Internet Archive in 2011 with funding from Ensuring Democracy through Digital Access (NC-LSTA) http://www.archive.org/details/biennialrep1962attrny1964 BIENNIAL REPORT OF THE ATTORNEY GENERAL OF THE State of North Carolina VOLUME 37 1962-64 THOMAS WADE BRUTON ATTORNEY GENERAL Harry W. McGalliard Peyton B. Abbott Ralph Moody Deputy Attorneys General Lucius W. Pullen* Harrison Lewis G. Andrew Jones, Jr.* Charles D. Barham, Jr. Charles W. Barbee, Jr. James F. Bullock Ray B. Brady Richard T. Sanders Assistant Attorneys General Resigned LETTER OF TRANSMITTAL 1 January 1965 To His Excellency Dan K. Moore, Governor Raleigh, North Carolina Dear Sir: In compliance with Article III, Section 7 of the Constitution, I herewith submit the report of the Department of Justice for the biennium 1962-64. Respectfully yours, Thomas Wade Bruton, Attorney General 6 LIST OF ATTORNEYS GENERAL SINCE THE ADOPTION OF CONSTITUTION IN 1776 Term of Office Avery, WaightsJll 1776-1779 Iredell, James 1779-1782 Moore, Alfred 1782-1790 Haywood, J. John 1791-1794 Baker, Blake 1794-1803 Seawell, Henry 1803-1808 Fitts, Oliver 1808-1810 Miller, William 1810-1810 Burton, Hutchins G 1810-1816 Drew, William 1816-1825 Taylor, James F 1825-1828 Jones, Robert H 1828-1828 Saunders, Romulus M 1828-1834 Daniel, John R. J 1834-1840 McQueen, Hugh 1840-1842 Whitaker, Spier 1842-1846 Stanly, Edward 1846-1848 Moore, Bartholomew F 1848-1851 Eaton, William 1851-1852 Ransom, Matt W 1852-1855 Batchelor, Joseph B 1855-1856 Bailey, William H 1856-1856 Jenkins, William A 1856-1862 Rogers, Sion H 1862-1868 Coleman, William M 1868-1869 Olds, Lewis P 1869-1870 Shipp, William M 1870-1872 Hargrove, Tazewell L 1872-1876 Kenan, Thomas S 1876-1884 Davidson, Theodore F 1884-1892 Osborne, Frank 1 1892-1896 Walser, Zeb V 1896-1900 Douglas, Robert D 1900-1901 Gilmer, Robert D 1901-1908 Bickett, T. W 1909-1916 Manning, James S 1917-1925 Brummitt, Dennis G 1925-1935 Seawell, A. A. F 1935-1938 McMullan, Harry 1938-1955 Rodman, William B., Jr 1955-1956 Patton, George B 1956-1958 Seawell, Malcolm B 1958-1960 Bruton, Thomas Wade 1960- ^0 EXHIBIT I Civil Actions Pending in State and Federal Courts During the Biennium 1962-64 . Number of Cases Pending in the Superior Court of North Carolina State Taxes 55 Motor Vehicle Drivers' Licenses 55 Condemnation Proceedings 1,374 Utilities Commission Cases 8 Beer and Wine License Revocations 15 Other 46 TOTAL 1,553 Pending in the Supreme Court of North Carolina State Taxes 2 Other 18 TOTAL 20 Pending in the United States District Courts State Taxes 2 Other 24 TOTAL 26 . Pending in the United States Supreme Court Other 1 Civil Cases Disposed of During the Biennium 1962-64 In the Superior Court of North Carolina 792 In the Supreme Court of North Carolina 33 In the Supreme Court of the United States 7 In the District Courts of the United States 113 Before the North Carolina Industrial Commission 167 Habeas Corpus Petitions Disposed of in the Superior Court 412 Habeas Corpus Petitions Disposed of in the Federal District Court 210 TOTAL 1,734 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. EXHIBIT II Criminal Cases Disposed of in the North Carolina Supreme Court During the Biennium 1962-64 : Abandonment-Nonsupport 3 Assault 3 Assault with Deadly Weapon 5 Assault with Intent to Rape 3 Breaking-Entering-Larcency-Receiving 9 Carnal Knowledge 1 Crime Against Nature 3 Conspiracy 3 Damage to Real Property 1 Embezzlement . . . 1 False Pretense 2 Forgery 5 Gambling 1 Incest 1 License Violation 1 Manslaughter 12 Murder First Degree 4 Murder Second Degree 2 Peeping Into Room Occupied by Woman 1 Perjury 2 Prostitution 1 Public Drunkeness 2 Rape 2 Robbery 8 Trespass 5 Unlawful Practice of Law 1 Violating City Ordinance 1 Violating Liquor Laws 6 Violating Motor Vehicle Laws 3 Violating Rules of the Road 11 Violating Security Act 1 Violating Suspended Sentence 3 Worthless Check 2 TOTAL . .109 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 7 Number of Cases dismissed on motion during the Biennium 1962-64 4 Number of Petitions for Stay of Judgment denied during the Biennium 1962-64 3 Number of Petitions for Writ of Certiorari denied during the Biennium 1962-64 146 Number of Petitions for Writ of Certiorari allowed during the Biennium 1962-64 18 Number of Petitions for Writ of Error Coram Nobis denied during the Biennium 1962-64 2 Number of Petitions for Writ of Habeas Corpus denied during the Biennium 1962-64 12 Number of Petitions for Writ of Mandamus denied during the Biennium 1962-64 7 Fees Transmitted by the Attorney General to the State Treasurer During the Biennium 1962-64 . . $485.00 8 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. SUMMARY OF ACTIVITIES Staff Personnel There have been very few changes in the staff personnel since the publication of the Biennial Report of 1960-62, although there has been an increase in personnel. Attorney General T. W. Bruton, Deputy Attorneys General Harry W. McGalliard, Peyton B. Abbott and Ralph Moody, and Assistant Attorneys General Harrison Lewis, Charles D. Barham, Jr., Charles W. Barbee, Jr., and James F. Bullock served throughout the biennium. In addition to those serving throughout the biennium Assistant Attorneys General Ray B. Brady and Richard T. Sanders were serving at the close of the biennium. Harold Lee Waters was serving as Revisor of Statutes at the close of the biennium. Staff Attorneys who were serving at the close of the biennium w^ere as follows: Parks H. Icenhovir, William R. Pierce, George A. Goodwyn, Ralph M. Potter, Theodore C. Brown, Jr., John W. Twisdale, William B. Ray, Samuel M. Booth, T. Buie Costen, Claude W. Harris, I. B. Hudson, Jr., Andrew H. McDaniel, William W. Melvin, William W. Merriman, III, Millard R. Rich, Jr., Henry T. Rosser, Eugene A. Smith, Robert S. Weathers, Thomas B. Wood, and William F. Briley. Members of the secretarial staff who were serving at the close of the biennium are as follows: Miss Elizabeth N. Flournoy, Mrs. Jean C. Spence, Miss Aida Epps, Mrs. Frances E. Gill, Mrs. Carolyn D'Alio, Mrs. Katharine L. Dowd, Mrs. Cleo A. Purcell, Miss Judith K. Edwards, Mrs. Alice Gorham, Mrs. Edna B. Jerome, Mrs. Helen W. Bagwell, Mrs. Barbara C. Owens, Mrs. Blondell Johnson, Mrs. Ruby Rickm.an, Mrs. Grace Gardner, Mrs. Mary H. Green, Mrs. Margaret P. Roberts, Mrs. Priscilla G. Sandy, Miss Shirley J. White, Mrs. Betty Y. Jeffreys, Mrs. Marilyn Lee, Miss Judy A. Underwood, Miss Carolyn R. Kearney, Mrs. Barbara H. Tucker, Miss Marie McLaurin, Mrs. Frances C Regan, Mrs. Jeanne M. Whitten, Mrs. Brenda M. Johnson, and Mrs. Colleen G. Hinton, Budget Officer. Highway Division of Attorney General's Office During the past biennium, the Attorney General, in the discharge of his responsibilities to represent the State Highway Commission, its Chairman and Director, has handled a work load of more than double the volume handled during the previous biennium. This volume is due in part to the expanded highway program, including the construction of the Interstate Highway System, and in part is due to the condemnation procedure enacted by the 1959 session of the General Assembly, effective July 1, 1960, under which the Commission is required to institute condemnation actions in the Superior Court on those matters which have not been settled prior to the letting of the contract for construction. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 9" At the close of the previous biennium, five hundred ninety-one (591) suits were pending. During the biennium, one thousand one hundred forty-one (1,141) new suits were instituted against or by the Highway Commis-sion, six hundred twenty (620) were disposed of, one hundred forty-six (146) of which were terminated by jury trials in the Superior Court. The balance were settled either prior to or during trial. One thousand three hundred seventy-four (1,374) condemnation and related cases are pending as of the close of the biennium. The State Highway Commission has been represented in the Supreme Court in fifteen (15) cases during the period by members of this staff. At the conclusion of the biennium, there are five (5) cases involving the State Highway Commission pending in the Supreme Court. During the latter part of the biennium, the number of cases opened and disposed of have been about equal and it is anticipated that during the succeeding biennium this trend will continue due to an increase in the staff of this division. During the biennium, the members of this staff participated with the administrative personnel of the Highway Commission in the determination of a large number of claims brought by highway contractors arising out of the contract work carried on by the Commission. Under a 1963 statute, these claims are now being determined in Superior Court in a civil action rather than before an administrative board of review, and it is anticipated that a more efficient disposition of these claims can now be made. The staff has also represented the Commission in the adjustment of claims for dam-age to Commission property and other miscellaneous matters. In addition, members of the staff have drafted, reviewed or approved approximately fifteen thousand (15,000) leases, deeds, right-of-way claims, encroachment contracts, miscellaneous agreements with utilities, railroads, municipalities and other governmental agencies, and construction contracts. Throughout the biennium, the staff has had the very complete cooperation of the State Highway Commission, its Chairman, Director and administra-tion in the prosecution of the Attorney General's work for the State Highway Commission. Tort Claims and Workmen's Compensation The State Tort Claims Act, which was enacted in 1951, imposed upon the Attorney General the duty of representing the various State depart-ments, institutions and agencies, with the exception of the State Highway and Public Works Commission. In 1957, when the Highway and Public Works Commission was separated by the General Assembly, the Attorney General assumed the duty of representing this department in like manner. During the biennium from July 1, 1962, to July 1, 1964, a total of 773 tort claims were filed against the various departments, institutions and agencies of the State. Approximately 50% of this number were handled by the Attorney General. About one-half of these were settled, and the re-mainder were heard before the North Carolina Industrial Commission, as provided by law. 10 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. In 1959, the General Assembly enacted a statute requiring all depart-ments, institutions and agencies of the State to acquire liability insurance on all State-owned motor vehicles. (Chapter 1248, Session Law, 1959). The effective date of this Act was July 1, 1959. As a result of this Act an undetermined number of tort claims against the State, in which State-owned motor vehicles were involved, were settled by the insurance carrier for the various departments, institutions, and agencies during the second half of the biennium. In addition to its duty of representing the various departments, institu-tions and agencies of the State in claims filed under the Tort Claims Act, the Attorney General represents the State in disputed Workmen's Com-pensation claims filed by State employees. During the past biennium approximately 359 disputed claims involving State employees were heard by the Commission. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 11 DIGEST OF OPINIONS AGRICULTURE 7 September 1962 Agriculture; Agricultural Fairs; Circuses; Conflicts in Dates A circus does not come within the purview of G.S. 106-516.1, which prohibits the exhibition of carnivals or shows "of like kind" within 30 days prior to a regularly advertised agricultural fair. Circus performances as they relate to conflicts in dates with agricultural fairs are governed by G.S. 106-519 and G.S. 105-38. 12 August 1963 Agriculture; Checked and Producer Eggs A check or cracked egg is not a "fresh" egg so as to satisfy the require-ments for a Grade A egg, nor can a producer egg go through a segregation procedure and be labelled as an "ungraded" egg. 4 October 1963 Agriculture, Dept. of; Dairy Laws, Minimum Standards in Grading and Testing of Milk and Dairy Products; Definition of Milk Misbranding The minimum standards of the Board of Agriculture as to the butterfat content of milk, skimmed milk and chocolate milk are controlling through-out the State; local boards of health may adopt more stringent regulations in regard to such content but such regulations should not conflict with the Board of Agriculture's minimum standards; a milk container having printed on it "chocolate milk" and under this the word "skimmed" is mis-branded for the reason that in this particular case the standard as to butterfat was anything less than 3^/4%, whereas the standard of the Board of Agriculture is not more than 1% butterfat. 10 December 1963 Agriculture; Egg Law; Egg Distributors; Failure to Obtain Distributor's Permit The Department of Agriculture has the right and authority under the law to stop the sale of a distributor's eggs on the market when such dis-tributor has not secured a distributor's certificate as required by G.S. 106-245.3, and any distributor who violates this statute shall be found guilty of a misdemeanor and upon conviction shall be fined not more than fifty dollars or imprisoned not more than thirty days. 12 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 6 February 1964 Agriculture; Unfair Practices by Handlers of Farm Products, Poultry and Eggs G. S. 106-496, relating to unfair practices by handlers of farm products, would include the handling of poultry and eggs. ABC ACT 24 August 1962 ABC Act; Closing of ABC Stores for County Bond Election All ABC stores are required to be closed on election day in a county hold-ing a county-wide special bond election. 18 June 1963 ABC Act; County ABC Board Selling Surplus Personal Property No statutory authority for county ABC Board to dispose of personal property by sale or otherwise and no statutory procedure is provided for the sale of its personal property. Nevertheless, it is felt that county ABC Boards have implied authority to dispose of surplus, obsolete, or unused property by public auction or upon sealed bids after due advertisement. 20 June 1963 ABC Act; Elections; Municipal ABC Election by Special Act; Beer and Wine Election A county or municipal election on the question of legal sale of beer or wine or both may not be held on the same date of a special liquor election in a municipality, or within 60 days of any general, special or primary election in the county or any municipality therein, until after July 1, 1963. G. S. 18-124 (f ) specifies what conditions must be met in order for a beer and/or wine election to be held on the same date as an election for ABC stores. 9 September 1963 ABC Act; Municipalities; No Authority to Call Liquor Election Without Enabling Act There is no general law authorizing a municipality to call a liquor elec-tion either with or without a petition. .37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 13 31 August 1962 ABC Act; Wholesaler of Malt Beverages; Wholesaler License A person, firm or corporation that sells the beverages enumerated in G. S. 18-64 (a), in barrels, bottles or other containers, in quantities of not less than one case or container to a customer for resale, is a wholesaler and subject to a wholesaler's license as provided in the Beverage Control Act. ABC BOARD 18 May 1964 ABC Board; Authority of County Board to Erect a Building for Purposes of Selling and Storing Alcoholic Beverages G. S. 18-45(8) grants to the county ABC Boards the implied power to erect and construct buildings on land purchased by the said county ABC Boards for the purposes of selling and storing alcoholic beverages. 29 April 1964 ABC Board; Authority of Local Board to Make Donation to Subsidize A Jitney Bus Operation A local ABC board may not appropriate funds to subsidize a jitney bus operation in the vicinity of an ABC store. ALCOHOLIC BEVERAGES 28 August 1963 Alcoholic Beverages,- Beer and Wine; Transporting Beer in Taxicab, Delivery Truck; Possession, prima facie Rule for Sale There is no statutory limit upon the quantity of beverages, enumerated in G.S. 18-64, which an individual may purchase, transport and possess. However, possession of more than five gallons of beer (15^/^ gallons of draft beer in wet area) raises a presumption that it is for purpose of sale. G.S. 18-32. Any vehicle transporting such beverages on the public highways must comply with G.S. 18-66 as to registration, certificate for transportation, etc., except when the transporting is by an individual for his own use. 29 November 1962 Alcoholic Beverages; Municipal Police Officers; Arrest of Violators Outside Municipal Limits A municipal police officer in hot pursuit of a person found to be violating 14 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. the liquor laws of this State may pursue such violator beyond the municipal limits and arrest the violator. G.S. 18-45 (o). 25 June 1964 Alcoholic Beverages; Private Lockers in Club Located in Dry County It is illegal under any and all circumstances to keep alcoholic beverages in a private locker at a clubhouse in a dry county. 30 November 1962 Alcoholic Beverages; Sales on Airplanes Operating Over Routes Crossing State of North Carolina With the exception of beer and wine, with not more than 14% of alcohol content sold by a licensed retailer, no alcoholic beverage of any kind may be sold in any aircraft passing over or through the State of North Carolina. ARCHIVES AND HISTORY 23 October 1963 Archives and History, Dept. of; State Capitol Building; Placement of Bronze Plaques The disposal of surplus property by State agencies and departments is under the control of the Department of Administration. BANKS, BANKING 6 August 1962 Banks; Excise Taxes; Deduction; Amortization op Bond Premiums Not Deductible No annual deduction for amortization of bond premium is allowable in computing income taxes due under Article 4, Chapter 105 of the General Statutes, nor is any annual deduction for amortization of bond premium allowable in computing the excise tax on banks provided by Article 8C, Chapter 105 of the General Statutes, regardless of the purpose for which the bonds are held. 2 December 1963 Banks; Inactive Accounts; Escheats; Service Charges The right of a bank to make service charges with respect to a depositor's account is dependent upon the bank's contractual relationship with the depositor. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 15 17 February 1964 Banks; Incorporation of an Existing Statute into Another Statute BY Descriptive Reference; Authority of State Banks to Issue Capital Notes or Debentures State banking corporations are authorized under the banking laws of this State to issue capital notes or debentures under regulations prescribed by the Banking Commission and supervised and administered by the Commis-sioner of Banks. 2 October 1963 Banks; National Banks; Trust Departments; No Supervision by State Commissioner The North Carolina State Department of Banks does not have any super-visory pow^ers with respect to trust accounts of national banks. 25 June 1964 Banks; Sale of Checks and Money Orders Any person, firm or corporation other than a bank may not engage in the business of selling money orders or checks unless duly licensed by the Com-missioner of Banks to engage in this special business. 22 August 1963 Banks; Small Loan Act; Consumer Finance Act; 1963 Insurance Premium Financing Act; Construction of Certain Provisions (1) A licensee under the Consumer Finance Act may engage in the busi-ness of acquiring insurance premium finance agreements from insurance premium finance companies and may carry on such business in the same place as its lending business because G. S. 53-172 specifically exempts install-ment paper dealing from its prohibition against carrying on additional types of business in a loan office. (2) If the same corporaton is licensed both under the Consumer Finance Act and the Insurance Premium Financing Act and attempts to operate pursuant to the Insurance Premium Financing Act, such premium financ-ing business could not, because of G. S. 53-172, be carried on in the same office as the lending business. 6 March 1963 Banks; What Constitutes Banking; Money Order Services; Travelers Checks It would violate the State banking laws for any person or firm other than a duly chartered bank to operate a money order or travelers check service. 16 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. BIDS; BIDDING 8 November 1963 Bids; Bidding; Counties; Public Bidding Statutes; Rejection of Lowest Bid In considering bids for motor vehicles which meet all specifications, a county has no authority to reject the lowest bid unless it determines that the agency submitting the lowest bid was not responsible, taking into con-sideration quality, performance and the time specified in the proposals for the performance of the contract. 2 October 1962 Bids; Bidding; Public Bidding; Medical Care Commission; "Lowest Responsible Bidder" In determining "the lowest responsible bidder" for public bidding pur-poses under G. S. 143-129, a discount for payment within a limited period offered by a bidder should be taken into account. BONDS, BONDSMEN 3 January 1964 Bonds; Bondsmen; Runners; Commissioner of Insurance; Regulation OF Rates and Charges The Commissioner of Insurance has no authority under Chapter 85A of the General Statutes of North Carolina to promulgate rating schedules or to regulate the charges which professional bondsmen and property bonds-men make for their services. 18 December 1962 Bonds; Clerk of Court; Statement of Conditions; Cancellation Clause Bond of Clerk of Superior Court must be conditioned upon requirements set forth in G. S. 2-3 ; G. S. 109-3 requires such bond to be for term of office, therefore non-cancellable. BUSINESS AND COMMERCE 2 December 1963 Business and Commerce; Debt Adjustment Services; Prohibited by Statute Engaging in the business of carrying on a debt adjustment, debt con-solidation and debt payment service for individuals was made unlawful by Chapter 394 of the Session Laws of 1963. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL IT CEMETERIES 13 September 1962 Cemeteries; Church Cemeteries; Extension of Church Building Over Abandoned Cemetery A church may not enlarge its church buildings to cover an abandoned cemetery without first giving the statutory notice and removing the graves as provided by Section 65-13 of the General Statutes. 24 April 1963 Cemeteries; Removal of Grave in City Cemetery by City A municipality w^ould not be performing a governmental function in open-ing a privately-owned grave in a city cemetery for the purpose of removing the remains to another grave in said cemetery. CITIZENSHIP 28 November 1962 Citizenship; Conviction of a Crime in Another State; Effect This office has always taken the view that the North Carolina Constitu-tional provisions as to loss of citizenship for commission of crime apply only to convictions for violation of statutes of this State. ' 27 May 1963 Citizenship; Pardon; Effect on Right to Vote and Hold Elective Office A person who has been convicted of a felony is disqualified as a voter and is not eligible to hold public office, under Article VI, Sections 1, 2, 7 and 8 of the North Carolina Constitution, until his citizenship has been restored as provided in Chapter 13 of the General Statutes. The fact that a disqualified person was pardoned by the Governor after such person's election, but prior to taking the oath of office, does not eliminate the neces-sity of having citizenship restored by the statutory procedure. A pardon does not ipso facto restore citizenship in North Carolina. One disqualified to hold office as of the date of his apparent election is not automatically entitled to hold such office by subsequent restoration of citizenship. 7 August 1963 Citizenship; Restoration of Citizenship After Conviction of Felony; Effect of Parole; Time of Application A parolee cannot apply for restoration of citizenship under Chapter 13 of the General Statutes until the applicant has been discharged from parole. 18 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 4 February 1963 Citizenship; Right of Person Convicted of Federal Offense to Hold County Office Conviction of a North Carolina citizen of a felony in a Federal court does not cause such person to lose his North Carolina citizenship. CIVIL DEFENSE 10 January 1964 Civil Defense; Authority to Use School Buildings and Other Facili-ties Without the Specific Consent of the Appropriate County Board OF Education The County Commissioners of a particular county may authorize the use of school buildings and other facilities for Civil Defense purposes during an emergency as defined by Chapter 166 of the North Carolina General Statutes, even though no specific consent has been granted by the County Board of Education. 28 April 1964 Civil Defense; Workmen's Compensation for Volunteer Civil Defense Workers A volunteer Civil Defense w^orker, who is not otherwise an employee of the State government, or a local governmental unit, who performs his services in a duly authorized Civil Defense exercise or training period so as to better the Civil Defense readiness, would not be allowed to receive workmen's compensation benefits in the event said volunteer Civil Defense worker is injured or killed while performing such authorized duties. CIVIL PROCEDURE 8 May 1963 Civil Procedure; Service of Civil Summons on Sundays Section 103-3 of the General Statutes make it lawful to serve a civil summons on Sunday. 29 April 1963 Civil Procedure; Waiver of Personal Appearance Court officials and law enforcement officers are not permitted to waive appearance of defendants; to be allowed to waive appearance, there must 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 19 be a warrant issued and served and appearance personally waived in writ-ing by defendant or through his counsel; the case should be properly docketed, evidence heard and judgment rendered. CONSTITUTIONAL LAW 15 February 1964 CONSTITUTIONAL LAW; MUNICIPAL CORPORATIONS; VALIDITY OF ORDINANCE OF Chapel Hill Regulating Picketing The Chapel Hill Ordinance regulating the time, place and manner of picketing is a valid regulation of the use of the streets of the Town under authority delegated to the Board of Aldermen by the General Assembly; the ordinance does not violate freedom of speech and assembly as guaran-teed by the First Amendment and made applicable to the States through the Fourteenth Amendment; the Ordinance is neutral and does not dis-criminate against persons or groups because of race, color or creed; the ordinance does not violate the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment. 17 February 1964 Constitutional Law; Religion and Public Education; Prayer in Public Schools; Prayer on a Voluntary Basis The reading of the Bible and recitation of prayers in the public schools can be properly engaged in on a voluntary basis. It would be constitu-tionally invalid if such reading of the Bible and saying of prayers were by order of a school board or other State agency. CONTRACTS 3 June 1963 Contracts; Insurance; Validity of Certified Copy of General Power of Attorney Opinion given that a certified copy of the General Power of Attorney issued in conjunction with a guaranty contract by an insurance company is valid and binding upon the insurance company if the corporate seal is attached thereto, citing G. S. 55-36 (c) and (d). 12 September 1962 Contracts; Lease; Execution A lease for a term of years complies with G. S. 22-2 if in writing and signed by the party to be charged thereunder, and is not governed by re-quirements of law for conveyance of real property. 20 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. CORPORATIONS 28 February 1964 Corporations; Foreign; Doing Business; Pension Trusts; Banking Institutions A corporation organized under the laws of another state and engaged in the banking and trust business cannot qualify to do business in North Carolina. Therefore, such foreign banking institution, as trustee under a trust indenture, could not purchase real property in this State under a plan whereby the bank would immediately after purchase lease back the prop-erty to the seller under a long term lease agreement. COUNTIES 20 July 1962 Counties ; Building and Plumbing Inspectors ; Agreement Between County and Municipalities; N. C. Building Code A Board of County Commissioners may enter into contracts with munici-palities within the county to support a joint Building Inspection Depart-ment. 25 September 1963 Counties; Community Colleges; Authority of County Commissioners TO Convey Surplus County Property to Community College A county owning surplus real property has the authority to convey such surplus real estate to a community college located in the county since such conveyance is supported by valid consideration in discharge of the county's legal duty to furnish real estate as a capital outlay item in the local budget for such college; such conveyance also is for a public purpose and is a transfer from one county governmental unit to another governmental unit. 17 September 1962 Counties; Condemnation; Authority to Condemn Property for County Buildings Boards of county commissioners are possessed only with those powers which have been expressly conferred or which are necessarily implied for the proper exercise of the duties imposed upon them and may not exercise the power of condemnation unless expressly conferred by the Legislature, or the power of condemnation is necessarily inferred from the particular act involved. 37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 21 10 March 1964 Counties; County Commissioners; Authority to Request County Board OF Elections to Hold Supplemental School Tax Election; Public Schools; Items for which Supplemental Tax may be Used Elections for the purpose of determining the question of a supplemental school tax can be held in each school district in a county, and where the school district lines coincide with the township lines a reference to such fact in a petition is a sufficient description; where the petition uses the words of a statute in designating the objects of expenditure for such supplemental tax, this is sufficient designation of the objects; in the absence of an authorizing statute the board of county commissioners should hold the election on the question of the approval of a supplemental tax. 27 February 1963 Counties; County Commissioners; Chairman of a Public Board; Authority of the Chairman to Vote a Second Time to Break a Tie There is no statutory authority which authorizes the chairman of a board of county commissioners to cast the deciding vote in case of a tie after he has already voted as a member of the board. In the absence of a rule which provides for double voting, the chairman of a board of county com-missioners is entitled to vote as a member of the board and is not entitled to vote a second time to break a tie. See MARKHAM v. SIMPSON, 175 N. C. 135, and STATE v. LONG, 186 N. C. 516. 26 July 1962 Counties; County Finance Act; Bond Ordinance; Proceeds of Bonds It is not necessary that a bond ordinance state in detail the use to which the proceeds will be put so long as the proceeds are used in furtherance of the general purpose set out in the bond ordinance. 14 November 1963 Counties; County Office Building; Authority to Construct OR Acquire A county has authority to acquire, purchase and construct a county office building to house offices, departments, bureaus and agencies of the county government. 23 August 1962 Counties; County Planning Boards; Water Resources; Ground Water Survey Expenditure of funds for county planning purposes pursuant to G. S. 153-9 (40) is a necessary expense in the constitiitional sense. 22 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 26 February 1964 Counties; Director of Public Trust Contracting for His Own Benefit; Account in Bank of which One of County Commissioners is Vice-President G. S. 14-234 exempts public officials transacting business with a bank from its provisions and the county may maintain a checking account in a bank where one of the commissioners is vice-president. 20 June 1963 Counties; Expenditure of Funds; Appropriation to Develop Private Property A county has no authority to expend public funds to develop private property. 7 December 1962 Counties; Expenditure of Funds: Public Purpose; Construction of Building to be Sold to Veterinarian A county does not have authority to use public funds to build a building for a private individual and then sell the same to the private individual on a time basis. . . 26 September 1962 Counties; Insurance; Authority to Purchase Insurance in Mutual Insurance Companies Counties, municipalities, and boards of education may purchase insur-ance in mutual insurance companies. 8 May 1963 Counties; Insurance; Group Life and Hospital Insurance A county has authority to pay premiums for group life insurance and hospital and medical insurance for county employees, and the providing of such a "fringe" benefit really amounts to a salary supplement to the extent of the amount of the premium involved. 31 July 1963 Counties; Municipalities; Water Supply; No Authority in County to Compel Fluoridation A board of county commissioners has no authority to compel a munici-pality to fluoridate it§ water supply. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 23 2 December 1963 Counties; Municipalities; Water and Sewage Services; Joint Projects Article 24 of Chapter 153 of the General Statutes authorizes the estab-lishment of water and sewer lines jointly by towns and any county to industrial plant sites located outside the municipal limits of a town. 18 December 1962 Counties; Necessary Expense; Use of Tax Money for County Audi-torium; Bond Issue; Use of Nontax Funds for Preliminary Expenses Establishment of a public auditorium by a county is for a public pur-pose, but expenditures therefor are not necessary expenses; non-tax funds may be used for preliminary expense, but approving vote of people is necessary before issuing bonds or levying taxes to pay therefor. 8 November 1963 Counties; Public Bidding Statutes; Rejection of Lowest Bid In considering bids for motor vehicles which meet all specifications, a county has no authority to reject the lowest bid unless it determines that the agency submitting the lowest bid was not responsible, taking into con-sideration quality, performance and the time specified in the proposals for the performance of the contract. 30 October 1963 Counties; Water and Sewer Systems; Acquisition of Right of Way The statutory right of a county to acquire and maintain water and sewer systems includes the authority to acquire the necessary rights of way there-for. COURTS 18 March 1963 Courts; Costs; City Police Officers; Witness Fees Under the general law, G. S. 6-52, a law enforcement officer who is on a salary basis is not entitled to witness fees for attending court with respect to cases with which he is officially connected. 2 November 1962 Courts; Costs; Liability of County in Criminal Actions Trial judges should determine insolvency of convicted defendant before county liability for pajrment of costs arises under G. S. 6-36. 24 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 27 August 1962 Courts; Domestic Relations Courts; Disclosure of Confidential Information; Court Costs An attorney representing a child or children in the Domestic Relations Court has the legal right to read and examine the court summary and also the case worker's or probation officer's report and any other information of a confidential nature if the same have been made available to the judge of the court. But a Judge of the Domestic Relations Court has no discretion to reduce the amount of costs, except in cases where the amount of cost is strictly a matter of law. 30 November 1962 Courts; Witnesses; Attendance at Criminal Terms; Re-issuing Subpoenas The effect of G. S. 7-73.1 as to attendance of witnesses at succeeding terms of criminal courts is to repeal the effect of G. S. 8-63, in that wit-nesses are no longer required to continue attending from term to term until dismissed when a case has been once continued, but are to be re-subpoenaed for a day certain at the next term when the trial is scheduled. CRIMINAL LAW 3 October 1963 Criminal Law; Embezzlement; Borrowed Goods; Leased Goods; Mortgages and Deeds of Trust; Sale of Mortgaged Property If a person borrows or leases personal property from another and sells it without permission, he is guilty of embezzlement. 26 September 1962 Criminal Law; Evidence Obtained Without Valid Search Warrant Evidence obtained through use of an invalid search warrant is inad-missible. 10 August 1962 Criminal Law; Marriage Laws; Bigamous Marriages In North Carolina a bigamous marriage is not voidable but void. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 25 7 February 1964 Criminal Law; Murder; Time of Death; Lapse of More Than a Year AND A Day In this State a person may not be convicted of murder when the fatal wound was inflicted more than a year and a day before death occurred. 10 October 1962 Criminal Law; Procedure; Evidence Obtained With Valid Search Warrant Evidence obtained as a result of a search made pursuant to a proper search warrant signed by a Mayor Pro Tern during the illness or absence of the Mayor would be competent and admissible. 11 July 1962 Criminal Law; Public Drunkenness; Hotel Lobby A hotel lobby is a public place within the meaning of the statutes pro-hibiting drunkenness in a public place. 2 July 1962 Criminal Law; Pyrotechnics; Explosives; "Amateur Rocketry" North Carolina does not have any statutes which are designed to encour-age "amateur rocketry". 9 December 1963 Criminal Law; Pyrotechnics; Sparklers "Sparklers" are considered pyrotechnics within the meaning of the law in this State prohibiting the sale, exhibition or possession of fireworks. 28 August 1962 Criminal Law; Selling Cigarettes to Certain Minors It is unlawful in this State to sell or give cigarettes or tobacco in any form to a minor under the age of seventeen. 20 August 1962 Criminal Law; Worthless Check; Stopping Payment The mere stopping payment on a check that has been issued, when there are at all times adequate funds in the bank to cover it, does not constitute a violation of the worthless check law. 26 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. CRIMINAL PROCEDURES 22 August 1963 Criminal Procedure; Appeals by State; Not Allowed on Directed Verdict A directed verdict of "not guilty" in a criminal case is not such a "special verdict" as would authorize the State to appeal under G. S. 15-179. 25 January 1963 Criminal Procedure; Appeal From Recorder's Court to Superior Court—Waiver A defendant may perfect his appeal within the ten-day period pre-scribed by law even though he may have signed a waiver of such right. 30 September 1963 Criminal Procedure; Appointment of Counsel for Indigent Defen-dants; Compensation of Counsel; Payment Out of State Appropria-tion FOR Counsel Appointed under the State Post-Conviction Hearing Act Counsel appointed for indigent petitioners under the State Post-Convic-tion Hearing Act are entitled to be paid in the same manner and out of the same appropriation of State funds as counsel who are appointed for indigent defendants in State trials under Chapter 1080 of the Session Laws of 1963. 2 January, 1963 Criminal Procedure; Nolle Prosequi; Effect on Further Prosecution for Same Offense Where a nol pros with leave has been entered by the court in a criminal proceeding, the State may later reopen the case by the issuance of a capias upon the original warrant or indictment. 9 April 1964 Criminal Procedure; Warrants; Desk Officers; Issuance of Search Warrant An officer designated by the chief of police as a "desk officer" pursuant to G. S. 160-20.1, enacted by the 1963 General Assembly, would have authority to issue search warrants as well as warrants of arrest. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 27 8 November 1963 Criminal Procedure; Witnesses; Fees; Salaried Officers A salaried law enforcement officer is not entitled to witness fees for attendance at court in connection with cases in which he has officially par-ticipated even though the trial occurs at a time or on a day when he is off duty. DETECTIVES 17 January 1963 Detectives; Private Detectives; Carrying Concealed Weapons A private detective may not carry a pistol concealed about his person. Before an individual may purchase a pistol in this State, he must first secure a permit from the sheriff of the county where the purchase is to be made. 30 May 1963 Detectives; Private Detectives; Collection Agencies; Prohibition Against Engaging in Both Occupations It is unlawful for a person to be a bill collector and a private detective at the same time in this State. DIVORCES 21 August 1963 Divorces; Judgments; Effective Date of Judgment A judgment for divorce becomes effective as between the parties to the marriage only on the day the judgment of divorce is signed by the judge. 16 December 1963 Divorces; Remarriage; No Waiting Period With respect to your inquiry of December 11, 1963, when an absolute divorce is granted in North Carolina, each party is free to remarry im-mediately without any waiting period. 14 September 1962 Divorces; Validity of Foreign Divorce If a divorce is legally obtained in a foreign state under the laws of such foreign state, it would be recognized in North Carolina. 28 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. DOUBLE OFFICE HOLDING 29 April 1964 Double Office Holding; Candidate for Public Office and Membership ON A Local School Board A member of a local school board is not required to resign from said board when he becomes a candidate in the primary for membership on the board of county commissioners. However, both of the positions mentioned above are considered public offices within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may not hold both these offices at the same time. 14 November 1963 Double Office Holding; Chairman of County Board of Elections and Member of Medical Care Commission A chairman of a county board of elections and a member of the Medical Care Commission are both public offices within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding. 2 December 1963 Double Office Holding; County Commissioners; Commissioner Serving as Jailer; Commissioners of Public Trusts It would constitute a violation of G.S. 14-234 for a member of a board of county commissioners to accept an appointment by the board to the position of county jailer. 22 August 1962 Double Office Holding; County Manager-Auditor; Town Mayor Where the powers and duties of the County Accountant have been im-posed and conferred upon the County Auditor, under G. S. 153-115, and such person also performs the duties of County Manager under G. S. 153-20, such person would be constituted a public officer within the meaning of Article XIV, Section 7 of the Constitution of North Carolina. 21 June 1963 Double Office Holding; County Sanitarian and Member of Town Zoning Board of Adjustments A Sanitarian II, employed by a County Health Department, is a position of employment and not a public office within the meaning of Article XIV, Section 7 of the North Carolina Constitution, 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 29 2 January 1964 Double Office Holding; Deputy Register of Deeds; Local Registrar for Bureau of Vital Statistics Local Registrars of Vital Statistics, appointed under G. S. 130-40, is a public officer and may not hold another public office at the same time under Article XIV, Section 7 of the North Carolina Constitution. 11 July 1962 Double Office Holding; Justices of Peace Acting as Policemen; Authority to Issue Warrants A justice of the peace may also be a member of a municipal police force, since a justice of the peace comes within the express exception to the pro-scription of double office holding of Article XIV, Section 7 of the North Carolina Constitution. Such justice of the peace may, in his capacity of justice of the peace, take the oath of another police officer to an affidavit on which a criminal warrant is to be issued, and then, as justice of the peace, issue a warrant thereon returnable before the judge of the municipal court. STATE v McHONE, 243 NC 231. 2 July 1963 Double Office Holding; Justice of the Peace and Notary Public A justice of the peace may also hold the office of notary public. See Sec-tion 7 of Chapter 313 of the Session Laws of 1961. 9 April 1963 Double Office Holding; Justice of Peace Holding Other Office; Effect of Constitutional Amendment to Article XIV, Section 7, AS of November 30, 1962 The exemption of a jubtice of the peace, from the prohibition as to double office holding, has been removed from Article XIV, Section 7, North Carolina Constitution, since certification of the Amendment on November 30, 1962. 30 July 1962 Double Office Holding; Member, Board of County Commissioners and . . County Tax Supervisor The same person may not occupy the offices of member of the Board of County Commissioners and County Tax Supervisor, as this would constitute double office holding contrary to Article XIV, Section 7, of the Constitution of North Carolina. 30 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 26 April 1963 Double Office Holding; Member, Board of Higher Education Membership on the State Board of Higher Education is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding. The office of membership on the State Board of Higher Education may be lav/fully held by a person holding any other public office without violating the provisions of the Constitution referred to above. A member of the Board is considered as falling within the exemption and is considered a commissioner of a public charity. 29 April 1964 Double Office Holding; Member, County Board of Elections and Local School Committee Membership on a local school committee and membership on a county board of elections are both considered public offices within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may not hold both these offices at the same time. 15 August 1962 Double Office Holding; School District Committeeman AND Postmaster School district committeeman is a public office. 10 September 1963 Double Office Holding; State Employment; Janitor, Bus Driver; Running for Public Office There is no statute which would prohibit a school janitor or bus driver from filing and running for public office in a county or township. 29 October 1962 Double Office Holding; Supervisor of Soil Conservation District and Member of ASC The position as supervisor of a Soil Conservation District and the posi-tion as member of ASC are both public offices and one person may not hold both offices at the same time, since this would constitute double office hold-ing, which is prohibited by Article XIV, Section 7, of the North Carolina Constitution. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 31 24 January 1964 Double Office Holding; Trustees of University of North Carolina; Commissioners of Public Charities The office of trustee of the University of North Carolina is a public office. However, the University of North Carolina is considered a charitable institution; therefore, a trustee may lawfully hold another public office without infriengement of Article XIV, Section 7 of the North Carolina Constitution. 23 July 1962 Double Office Holding; Trustees of Watershed Improvement Districts ; Registrars North Carolina constitutional prohibitions against double office holding apply to the office of registrar for election purposes and trustees of water-shed improvement districts organized under Article 2, Chapter 139 of the General Statutes. EDUCATION 12 July 1963 Education; Colleges; A & T College; Special Policemen; Bond Required A person who is appointed a special policeman under Article 10 of Chap-ter 60 of the General Statutes is required to furnish a bond "payable to the State of North Carolina, conditioned upon the faithful performance of the duties of his office." 11 March 1964 Education; Colleges; Speaker Ban Law; Visiting Speakers at State- Supported Colleges and Universities; Application of Act to Russian Folk and Ballet Ensemble Chapter 1207 of the Session Laws of 1963 prohibiting certain Communist speakers and others from using the facilities of State-supported colleges and universities has no application to a folk and ballet group who perform on a college campus and whose activities are entirely in the artistic and cultural field. . . ' 11 November 1963 Education; Community Colleges; Board of Trustees as Body Corporate and Governing Authority of Community Colleges Under the provisions of Chapter 115A of the General Statutes the Board of Trustees of a community college, technical institute or industrial edu- 32 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. cation center is a body corporate and is authorized by the statute to hold title to property, both real and personal. 11 November 1963 Education; Community Colleges; Multiple-County Administrative Areas; Financial Support of County in which College is Located and County in which College is not Located; Approval of Contract by Voters of County If two or more counties form a multiple-county administrative area under the Community College Act, then each county may agree in a contract as to the percentages of costs that each county will pay for procurement of land and erection of buildings; under such a contract a county in which the col-lege is not located could agree to pay its pro rata portion of the operational expense based on the proportion of students that such county furnishes to the entire student body and such county may provide for bus transportation to and from the college at its own expense; if a multiple-county administra-tive area is formed and a contract is proposed between the various counties, then the voters of each county concerned should approve the provisions of the contract along with the question of furnishing a pro rata share of financial support and this would constitute a continuing obligation year after year unless the contract was legally terminated. 22 January 1964 Education; Community Colleges; Statutory Provisions Governing Community Colleges Organized Prior to the Year 1963, or Prior to THE Enactment of G. S. 115A. Community colleges organized prior to the enactment of Chapter 115 A of the General Statutes should transfer such colleges to boards of trustees organized under said Chapter since Chapter 115A of the General Statutes is now the controlling law in community colleges. 15 February 1964 Education; County and City Administrative Units; Acquisition of Site for Educational Facility by One Unit within the Territorial Boundaries of another Unit; Operation of Educated Facility by One Unit within the Boundaries of another Unit; Authority of City Administrative Unit to Transfer its Property; Title to Property of Educational Facility A county board of education may acquire a school site within the boun-daries of a city administrative unit but the county unit may not operate a school thereon without an agreement and approval of the city board of education; a city board of education has no authority to transfer or make a conveyance of its school property and buildings unless it meets the condi-tions set forth in G. S. 115-126 as to the sale, exchange or lease of school property. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 33 15 May 1964 Education; Higher Education; Consolidated University of North CAROLINA; North Carolina State of the University of North Carolina AT Raleigh; School of Engineering; Educational Functions of the University; Charlotte College; Authority to Confer Degrees in Mechanical and Electrical Engineering The Board of Trustees of the University of North Carolina allocates to its various campuses the functions that shall be carried on by each college and if new functions or educational programs are established at any of the institutions, they should be authorized by the State Board of Higher Education; there is nothing in the present statutes that prevents or pro-hibits any of the campuses or colleges, when properly authorized, from giv-ing courses in engineering; at the present time Charlotte College is subject to Article 2 of Chapter 116 of the General Statutes and with the authoriza-tion of the State Board of Higher Education it can grant engineering de-grees in mechanical and electrical engineering. 25 February 1964 Education; Higher Education Facilities Act of 1963; Authority of Governor to Appoint State Commission on Higher Education Facilities By virtue of his constitutional executive power and also by virtue of G. S. 143-164 the Governor of North Carolina has the legal authority to appoint a commission and advisory group for the purposes of carrying out the provisions, on the part of the State, of Public Law 88-204, known as the Higher Education Facilities Act of 1963. 16 March 1964 Education; Industrial Education Centers; Establishment of Unit or Satellite of Industrial Education Center in a County Other than THE Original Center; Authority of Local Board of Education to Finance Satellite Unit under Contract An industrial education center located in one county has no legal authority to establish and financially support an additional campus or satellite unit in another county. .13April 1964 Education; Industrial Education Centers; Instruction and Classes in Industrial Education in a County other than Original Center; Authority of Local Board of Education to Finance Local Instruction Industrial education centers can contract with local school boards for area instruction and boards of county commissioners can budget funds to the local school boards for this purpose. 34 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 11 April 1964 Education; Industrial Education Center; When Necessary to Hire Architect; When Necessary to Submit Contract to Bidders Architects are not required on public works projects unless the expendi-tures are in excess of $20,000; repairs or additions can be made a unit of government through its own employees if the project involved does not ex-ceed $15,000; otherwise if the project is equal to or more than $3,500 then the contract must be let to the lowest bidder after advertisement. 23 August 1962 Education; Public Schools, Act Providing Scholarship Loan Fund for Prospective Teachers The Scholarship Loan Fund for prospective teachers permits credit on a scholarship loan for each full school year taught in a North Carolina public school; the schools operated at Fort Bragg and at Camp Lejeune for the dependents of military personnel are not North Carolina Public Schools and credit cannot be given on a scholarship loan fund for any year taught in such schools; Caswell School at Kinston is a North Carolina public school and credit can be given on a scholarship loan for each year taught in such school. 31 July 1963 Education; Public Schools; Age of New Employee; Teachers and State Employees' Retirement System There is no State law placing any limitation on the age at which a person may be employed as a school teacher. Frequently local boards have, as a matter of policy, adopted certain age limits but this is a matter of local policy and not of State law. 30 April 1964 Education; Public Schools; Attendance Counselors; Pre-Trial Inves-tigations; Referral to Department of Public Welfare; Compulsory Attendance An attendance counselor of the public school system is not required to act as probation officer in the case of a child brought before a juvenile court; such counselor is not required to fill out any forms used by the Department of Public Welfare and has no connection with the Department of Public Welfare. 13 February 1964 Education; Public Schools; Authority of Board of County Commissioners Over Employees Boards of county commissioners have no legal authority to control the conditions of employment, office hours, sick leave, vacation, and holidays of employees of county and city boards of education. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 35 7 August 1962 Education; Public Schools; Authority of Board of Education to Assign Children to Public Schools; Status of School Attendance Pending Appeal of Parents to Superior Court The board of education of a county is vested with complete authority to assign pupils to the various schools under its jurisdiction; where parents of children ask for reassignment of pupils and this is refused by the board pending appeal to the Superior Court, the children should attend the schools as ordered by the board. 30 April 1964 Education; Public Schools; Authority of Board of Education to Contribute Funds for Construction of Sewerage Disposal Plant by Municipal Corporation which will be Used by the School A county board of education can contribute funds to a municipal cor-poration for the construction of a sewerage disposal plant which will be used both by the municipal corporation and by the school authorities. 29 May 1964 Education; Public Schools; Authority of Board of Education to Provide for Sewage System It is the duty of the board of education to provide sewage facilities for public schools; where a town permits a county school system to use its sewage facilities without any contract or agreement the town may termi-nate the use of the facilities when it desires to do so. 11 April 1964 Education; Public Schools; Authority of Member of Board of Education to Teach as a Substitute Teacher If a person teaches in the public schools, such person is ineligible to be a member of a city or county board of education. A member of a board of education, therefore, should not teach in the public schools, even as a substitute teacher, as this would render such person ineligible to serve on the board. 14 February 1964 Education; Public Schools; Bond Issue; Reallocation of Funds With-in THE General Purpose for Which Bonds are Authorized; Diversion of the Proceeds of a Bond Issue for Capital Outlay Purposes The Board of Education and the Board of County Commissioners may reallocate bond proceeds where the reallocation is a mere change in the method or manner in carrying out the basic purpose for which the bonds 36 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. were approved; such funds, however, cannot be used for a new project which is entirely different from the basic purpose as this would constitute a diversion of funds. 12 October 1962 Education; Public Schools; Cafeterias Furnishing Food to Civic Clubs and Public Meetings Public school cafeterias under G. S. 115-51 can only be used or operated for the convenience of teachers, school officers, and pupils of the school; cafeteria facilities can be i;sed for supper and evening meetings or student activities, teachers' meetings, meetings of the board of education and similar school-related meetings under regulations issued by the boards of education. 29 May 1964 Education; Public Schools; City Administrative Units; Number of Members of Board of Trustees Boards of trustees of city administrative units were left, by the General Statutes when the school laws were revised, as provided by the various local acts governing such boards of trustees; where the statute fixes the number of members of the board, no new or additional members can be appointed or added to the board unless the statute is amended for such purposes. 14 March 1964 Education; Public Schools; Compulsory Attendance Law; Penalty for Violation; Successive Violations of Compulsory Attendance Law The Compulsory Attendance School Law creates a continuing offense and a parent can be indicted and convicted for successive periods of time and for successive offenses in failing to send a child to school. 13 December, 1962 Education; Public Schools; Consolidation of City and County Administrative Units; County Assuming City's Bonded Indebtedness Theretofore Incurred for School Purposes In order to consolidate county and city administrative school units into one administrative unit it is not necessary that the county assume the bonded indebtedness of the city, the proceeds of which have heretofore been spent for school purposes. If the county wishes to assume such bonded indebtedness of the city the question of such assumption should be sub-mitted to the voters in an election. 37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 37 9 March 1964 Education; Public Schools; Consolidation of Districts; Creation op New School Committee When two school districts are consolidated into one district the two old school committees cease to exist and the county board of education may appoint a new committee for the one consolidated district. 17 August 1962 Education; Public Schools; Consolidation op Districts Having Special Bonded Indebtedness With Districts Having no Bonded Indebtedness; Consolidation for Administrative Purposes; Approval of State Board of Education A school district which has voted a bonded indebtedness under a so-called County Act can be consolidated with a nontax district which levies no special tax for purposes of administration and attendance of pupils; the special tax district for bond purposes retains its boundaires unaltered for tax levying and debt service purposes. 17 February 1964 Eduction; Public Schools; Constitutional Law; Religion and Public Education; Prayer in Public Schools; Prayer on a Voluntary Basis The reading of the Bible and recitation of prayers in the public schools can be properly engaged in on a voluntary basis. It would be constitu-tionally invalid if such reading of the Bible and saying of prayers were by order of a school board or other State agency. 4 March 1964 Education; Public Schools; County Board op Education; Appointment of Member of County Board of Education to Inspect Boilers of the School System; Reimbursement for Services A county board of education is not authorized to appoint one of its mem-bers as a boiler inspector for the county schools and to pay him a per diem and travel expense; boiler inspection is under the supervision of the Depart-ment of Labor and such inspections must be made by licensed inspectors of that Department. 14 May 1964 Education; Public Schools; County Board of Education; Authority TO Provide Recreation Program During the Summer Months in Each School District of the County A county board of education has no authority to spend school funds to establish a recreational system in the various school districts of the county during the summer months and when the schpols are not in session, 38 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 6 September 1962 Education; Public Schools; Dismissal of Teacher for Violation of Traffic Laws A school teacher should not be dismissed for violations of traffic laws where no intoxication is involved upon the grounds that such violations are immoral or disreputable. 11 April 1964 Education; Public Schools; Duty of County Commissioners to Supply Office for County Schools; Quarters for County Board of Education A county board of education has the authority to supply adequate fa-cilities for the school system and this includes an office or office space in which the board of education can hold its meetings. 14 December 1962 Education; Public Schools; Election to Enlarge City Administrative Unit and Levy Supplemental Tax; Expense of Election; Right to Determine District Lines; Transfer of Property and Operation of Schools in Territory Added to City Administrative Unit When a school election is held to determine whether or not a district of a county administrative unit shall be added to a city administrative unit with an equalizing tax, all expenses of such election are the obligation of the city administrative unit; if such territory is added to the city adminis-trative unit, then the school buildings and facilities and the operation of same go to the city administrative unit but there may be an agreement as to the transfer of property. All exchanges of students between the two units and matters of tuition and attendance can be agreed upon in writing between the two boards and made a matter of record by resolution of each board. 26 February 1964 Education; Public Schools; Eligibility for Membership on Board of Education; Person Conducting Private Music School in Connection WITH Public School; Eligibility of Member of Local School Committee A person conducting a private music school in connection with a public school is not eligible to serve on a county board of education nor is a mem-ber of a local district committee eligible to serve on a county board of edu-cation. 11 April 1964 Education; Public Schools; Eligibility of Member of County Board of Education; Eligibility of Person Who is Superintendent of Workshop Training Center A person who is superintendent of a workshop school engaged in voca-tional instruction for mentally handicapped adults aboyg 16-years of age, 37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 39 which is operated under the rules and regulations of the State Board of Education, and which school has one teacher paid by the State, is not eligible for membership on the county board of education. 9 March 1964 Education; Public Schools; Expenditure of School Funds for Water AND Sewer System for School Building; Duty of School Authorities A county board of education is authorized to expend capital outlay funds in order to provide water, sewerage and other sanitary facilities for public school buildings. 6 September 1962 Education; Public Schools; Insurance; Liability of Board of Educa-tion FOR Injury to Student Sustaining Broken Ankle in Football Game A school board is not liable for injury received by a student who sustains a broken ankle in a football game; there is no statute or law under which a school board can voluntarily assume liability and pay hospital bills for such an injury. 28 April 1964 Education; Public Schools; Issuance of Bonds by City Administrative Unit for Capital Outlay Purposes; County-Wide Issue for Capital Outlay; Buncombe County Act and Cleveland County Act There can be a county-wide bond election for capital outlay purposes for all the schools in the county, including a city administrative unit; unless the Buncombe County Act or the Cleveland County Act is applicable to a county, then there is no machinery for a city administrative unit to issue its own capital outlay bonds. 10 April 1964 Education; Public Schools; Lease of School Property; Lease to Non-School Personnel of Vacant Apartment in Teacherage A county board of education may lease unused apartments in a teacherage to non-school personnel for a reasonable rental and for a term not in excess of one year. Such lease should contain a clause that the lease shall termi-nate if it again should be needed for public school purposes. 10 April 1964 Education; Public Schools; Length of School DAy; Authority op Board of Education to Dismiss Pupils for a Limited Time for Purpose OF Attending Agricultural Fair The board of education of a county has the authority to permit teachers and students to be dismissed from school for a lijiiited time in order to at-tend a county agricultural fair. 40 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 3 December 1962 Education; Public Schools; Liability of City Board of Education FOR Street Assessments City school boards are liable for special assessments made by municipal corporations on account of street improvements. These assessments are not taxes, and the Supreme Court of this State has held that city boards of education must pay such assessments. 10 April 1964 Education; Public Schools; Local Budgets; Transfer of Funds Within the School Budget from One Code to Another Within the current expense fund and within the capital outlay fund a board of education may transfer funds from one code number to the other if the board of county commissioners approves the transfer resolution. 12 May 1964 Education; Public Schools; Minimum Wage Law; Application op Minimum Wage Law to School Employees The Minimum Wage Act does not apply to county and city school boards and other agencies of government. 4 June 1964 Education; Public Schools; Payment of Tuition for Pupils Who Reside Out of District With Supplementary School Tax but Who Attend School in Such District; Validity of Tuition Fee The payment of tuition for pupils who live outside a special tax district but who attend schools located within a special tax district is legal and valid. 13 May 1964 Education; Public Schools; Principal; Assistant Principal; Authority For A principal of a school cannot delegate his duties to any other person. The school statutes do not provide for any such position as assistant prin-cipal. 6 November 1963 Education; Public Schools; Providing Basal and Supplemental Textbooks; County and City Units Withdrawing from State Systems A county or city administrative unit under the provisions of G. S. 115-220 cannot withdraw its elementary schools from the State rental program for supplementary books in the elei»ent3,ry schools without the approval of the State Board of Education, 37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 41 2 July 1962 Education; Public Schools; Purchase and Contract; Purchase of Mobile or Demountable Public School Classrooms The demountable classroom facilities which do not remain on wheels and are erected or set upon foundations may be purchased by school units according to Chapter 143 of the General Statutes, known as the Public Contracts Act, but the structural and functional soundness, safety and sanitation of such units must be in accordance with plans approved by the State Superintendent of Public Instruction; mobile units used for the same purpose, which remain on wheels, fall under G. S. 115-52, relating to the purchase of equipment, and must be purchased by school units on State contracts established by the Division of Purchase and Contract. 13 May 1964 Education; Public Schools; Regulations of Board of Education; Lowering Grade; Retroactive Application of Regulations A city or county school board has no authority to pass a regulation low-ering a pupil's grade as a form of disciplinary action; a city or county school board has no authority to pass regulations and make the same applicable in a retrospective manner. 14 May 1964 Education; Public Schools; Right of Children Discharged from State Correctional Schools to Attend the Public Schools Children discharged from correctional institutions of the State still have a right to attend the public schools. 19 December 1962 Education; Public Schools; Sale of Surplus School Property A County Board of Education may not transfer surplus real property without specific legislative authority or complying with G. S. 115-126. 4 June 1964 Education; Public Schools; School Committee; Election of Chairman; Resignation of Chairman and to Whom Made; Existence of Disagreement as to Election of Principal The resignation of a chairman of a school committee should be directed to the county board of education. When the superintendent and the school committee will not agree on the choice of a principal there exists a dis-agreement and the board of education should appoint and employ a prin-cipal; the county board of education determines whether or not a dis-agreement exists. 42 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 5 June 1964 Education; Public Schools; Special Funds; Ownership of Fund Provided for Special Purpose in High School After High School is Consolidated with other High Schools Funds deposited by a class of Future Farmers of America in the high school for the promotion of forestry study should be handled as special funds under G. S. 115-91 (c); if the high school is consolidated with other high schools into a central high school, then the funds follow the school's succession and should be used for the forestry project in the consolidated high school. 30 August 1962 Education; Public Schools; Supplemental Tax. Information to be Furnished to Governing Authority of City in Preparing Supplemental Tax Budget In making budget requests for supplemental funds city administrative units should present all financial data to the city governing authority, including items contained in the budget presented to the county. 1 June 1964 Education; Public Schools; Teachers Demonstration Schools; Authority of County Board of Education to Cooperate With Teachers College in Operating Demonstration School County boards of education have the authority to enter into agreements with teachers' colleges for the operation of demonstration schools; the final authority, however, for the employment of principals and teachers is vested in the county board of education and cannot be delegated or shared jointly with the president of a teachers' college. 30 January 1964 Education; Public Schools; Transportation of Pupils to Summer Schools Operated by the Public School System; Use of Public School Buses for such Purpose Public school buses can be used for the transportation of pupils to sum-mer schools of the public school system; boards of education, however, should procure liability insurance to protect the boards and pupils from negligent injuries and this should be required by regulations of the State Board of Education. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 43 5 June 1964 EDUCATION; Public Schools; Use of Laboratory Facilities of a Public School by a Non-Public School A county or city board of education has no legal authority to make its laboratory facilities available to a non-public or private school since school property must be devoted to public school use exclusively. 30 January 1964 Education; Public Schools; Use of School Buses for Transportation OF Pupils to Career Day Programs Public school buses and their transportation uses are controlled by G. S. 115-183; such public school buses cannot lawfully be used for career day programs which have no rational or legal connection with the public school system and pupils cannot be transported by public school buses for such purpose. 24 October 1963 Education; Public Schools; Use of Supplementary Tax Funds to Employ Extra Teacher, Supplement Salaries of Principals and Pay Salary of Coach or Physical Education Teacher Under the provisions of G. S. 115-116 supplementary tax funds can be used to employ an extra teacher as a librarian, relieve a principal of part-time classroom teaching duties, supplement salaries of classified principals, and pay a coach or physical education teacher during summer months in physical education program. 23 August 1962 Education; Sales of Articles in Dormitory of Institution of Higher Learning There is no statute prohibiting the sale of various articles in the dormi-tories of colleges and universities; with certain exceptions State depart-ments and institutions and their employees cannot engage in the sale of articles of commerce in competition with private individuals or private business; the board of trustees of the various colleges and universities have the authority to pass ordinances or regulations, either prohibiting or regu-lating the sale of articles by students in the various dormitories. 1 June 1964 Education; State Board of Higher Education; Gifts to State Board of Higher Education to Finance Surveys; Authority to Keep Gifts in Special Account other than Financial System of the State A State agency can receive a gift of funds for specific research or for a specific purpose and if the donor wishes, it may be kept in a separate 44 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. account and used by said agency for said purpose; any auditing of the fund would not relate to the purpose of the expenditure. ELECTIONS 21 November 1963 Elections; Absentee Ballots; Construction of Chapter 457, Session Laws of 1963 All applications for absentee ballots shall be approved or disapproved by the County Board of Elections at its meetings held for that purpose, and no absentee ballot shall be delivered in person or by mail to the voter until the application has been approved by a majority of the county board of elections. 1 November 1963 Elections; Compensation of Precinct Officials In primary and general elections, the county boards of elections have authority to appoint the judges, registrars, assistants, clerks and other precinct personnel, as authorized in Chapter 163 of the General Statutes, and such officers and personnel shall be compensated by the board of com-missioners of the respective counties as provided by statute. 2 November 1962 Elections; Corrupt Practice Act; Filing Statement of Expenditures and Contributions in General Election G. S. 163-195 requires any and all campaign committees to file with the Secretary of State a statement of all contributions and expenditures made in behalf of a candidate in any primary, general or special election; but if a candidate, in the general election, receives all contributions and makes all expenditures in his behalf, then such candidate does not have to file the statement of contributions and expenditures with the Secretary of State. 19 June 1964 Elections; Eligibility of Voter; Literacy Test; Persons Whose Names Appear on the Registration Books but Who are Unable to Pass Literacy Test Where it is suggested to a county board of elections that some of the persons registered cannot meet the literacy test a county board of elections operating under a loose-leaf and visible registration system can hear chal-lenges made to the registration of such persons and make its findings as to the eligibility of guch persons. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 45 29 January 1964 Elections; Filing Fee Required of Candidates in Primary; Clerk of Superior Court Compensation received by clerks of superior courts in their capacity as ex officio clerks of recorder's courts and judge of juvenile courts should not be included in the annual salary in computing the filing fee required of candidates for the office of clerk of superior court under G. S. 163-120. 31 July 1962 Elections; General; Substitution of Candidates After Primary; Nomination of Senatorial Candidates by District Executive Committee Under G. S. 163-113, when there is no rotation agreement among the counties comprising a senatorial district, selection of substitute nominee for State Senator is made by the Senatorial Executive Committee of the party in which the vacancy occurs. The terms of the proviso in G. S. 163-145, under which county boards of election may order substitution of candidates after the primary or convention "for good cause shown," is construed to mean that the county board has discretionary authority to determine whether reasons for necessity of substitution are bona fide, arose in good faith, and are so compelling that the candidate for whom substitution is sought would be prevented from representing his party effectively, or from serving in the office to which he might be elected. 22 January 1963 Elections; Inspection of Registration and Poll Books County registration books and poll books are deemed to be public records and subject to inspection by electors as provided by statute. 20 June 1963 Elections; Municipal ABC Election by Special Act; Beer and Wine Election A county or municipal election on the question of legal sale of beer or wine or both may not be held on the same date of a special liquor election in a municipality, or within 60 days of any general, special or primary election in the county or any municipality therein, until after July 1, 1963. G. S. 18-124 (f) specifies what conditions must be met in order for a beer and/or wine election to be held on the same date as an election for ABC stores. 2 April 1964 Elections; Primaries; Selection of Nominee; Write-in Vote Not Authorized in Primary The exclusive method for the nomination of a nominee of a political party is provided by Article 19, Chapter 163 of the General Statutes (Pri- 46 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. mary Laws), and a person may not become a nominee in the party primary by "write-in votes. 24 October 1962 Elections; Primaries; Write-in Votes Not Authorized While write-in votes are permitted in general elections, write-in votes are not authorized by law in primary elections. 14 May 1964 Elections; Registration; Ability to Read and Write Printing or block type copying of sections of the Constitution is sufficient to qualify an applicant under the written test for registration. 29 April 1964 Election Laws; Registration; Books Must be Held Open at Polling Places Registration books must be held open at polling places. They may not be kept open at any other place. 19 October 1962 Elections; Registration; Invalidity of "Grandfather Clause" The so-called Grandfather Clause contained in the North Carolina Con-stitution is invalid. 27 May 1964 Elections; Registration; Member of One Political Party Challenging Member of Another Political Party The right to challenge, as provided in Article 12, Chapter 163 of the General Statutes, pertains to the constitutional qualifications of the chal-lenged voter and, therefore, any elector may challenge the name of any person registered even though the challenger and the challenged voter are members of different political parties. 15 October 1962 Elections; Residence — Voter Moving to Another County One Week Prior to General Election A person may move his residence from one county to another and not be deprived of his right to vote in the precinct, ward or other election district from which he moved until thirty days after such removal. Art. VI, Sec. 2, N. C. Constitution; G. S. 163-25. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 47 2 November 1962 Elections; Write-in Votes for Township Office; Number Required A write-in candidate in the general election for county or township office or for the House of Representatives or for the State Senate, must receive as many as 5% of the votes cast for candidates for Congress in the town-ship or county in which said write-in candidate is running as a prerequisite for his being elected. EMINENT DOMAIN 17 September 1962 Eminent Domain; Condemnation; Boards of County Commissioners; Authority to Condemn Property for County Buildings Boards of county commissioners are possessed only with those powers which have been expressly conferred or which are necessarily implied for the proper exercise of the duties imposed upon them and may not exercise the power of condemnation unless expressly conferred by the Legislature, or the power of condemnation is necessarily inferred from the particular act involved. 17 May 1963 Eminent Domain; Hospitals; Power of Condemnation A hospital, owned by a County, has the power of condemnation as pro-vided in G. S. 131-28.14 to condemn private property for a hospital purpose. 25 April 1963 Eminent Domain; Local Modification of a General Law; Delegation of Power of Eminent Domain; School Law — Property A local or special act may take precedence over the general law with respect to the exercise of the power of eminent domain. The power of eminent domain can be delegated to a county or city school board by a local or special act. 3 December 1963 Eminent Domain; Municipalities; Sewerage and Waterworks; Condemnation of School Property by a Municipality for Sewage System Purposes In the exercise of a general power of eminent domain, a municipality may condemn lands belonging to a county school board where the lands are not in actual public use or not needed for school purposes, provided that the public use to be established thereon will not destroy the existing 48 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. use of the remainder of the tract or interfere with the existing use to such an extent as is tantamount to a further taking or destruction. 4 May 1964 Eminent Domain; Precedence of Trial The provisions of G. S. 40-33 providing for precedence of condemnation trial apply only to proceedings instituted under the provisions of Article 3 of Chapter 40 of the General Statutes. 19 May 1964 Eminent Domain; Right of Municipality to Condemn Property for State Highway System Street A municipality is authorized to condemn right of way for State Highway System strees and may bring the action in the name of the municipality. 7 May 1964 Eminent Domain; State Highway Commission; Highway Right of Way The State Highway Commission has no authority to create a property interest in a private party which would be superior to the easement of the State for highway purposes in lands acquired for right of way. An ease-ment is a property interest, the taking of which requires the payment of just compensation. EMPLOYMENT SECURITY ACT 20 January 1964 Employment Security Act; Employers; Notice to Employers; Validity OF Notices to Attorneys in Fact Purporting to Represent Employers The various statutes in the Employment Security Act requiring that notices, forms and other documents be sent to employers mean that such notices, forms and documents shall be sent to the employers themselves and not to consultants, accountants and others who hold power of attorney to act as attorney in fact. EMPLOYMENT SECURITY COMMISSION 2 April 1964 Employment Security Commission; Clerks of Court; Fees; Docketing E.S.C. Certificates; Statutory Construction Chapter 288 of the Session Laws of 1945 prescribing a fee of $1.00 for 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 49 the clerk of the superior court for indexing and docketing Employment Se-curity Commission certificates, is applicable in every county in the State unless said statute has specifically, by reference thereto, been amended or modified. ESTATES 31 December 1963 Estates; Administration of Estates; Survivor's Allowance Bank accounts and savings accounts would be proper assets of the dece-dent's estate from which to award the survivor's year's allowance pursuant to Article 4 of Chapter 30 of the General Statutes of North Carolina. EXECUTION 21 February 1963 Execution; Vested Remainder in Real Property; Homestead Exemption The vested remainder interest of a nonresident in real property in this State may be levied upon and sold at execution, and such nonresident is not entitled to a homestead exemption. EXECUTORS AND ADMINISTRATORS 11 July 1963 Executors and Administrators; Assets; Growing Crops Crops planted and ungathered at the decedent's death are considered personal assets of the estate of the decedent. 11 July 1963 Executors and Administrators; Claim by an Educational Institution; Priority A claim by an educational institution against the estate of a decedent would be considered a debt of the fourth class and entitled to priority in payment over the general creditors of the estate. 50 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 6 July 1962 Executors and Administrators; Estates of Less Than $1,000.00; Receipt for Contents of Safe Deposit Box Where the Clerk of Superior Court administrates the assets of estates of less than $1,000.00, he would be the proper person to give a receipt for the contents of a safe deposit box. 7 January 1963 Executors and Administrators; Final Accounts; Compelling Accounting The clerk of the superior court can require an accounting of the pro-ceeds of a wrongful death action prior to the expiration of two years after qualification of an administrator where the estate has otherwise been fully administered. 29 June 1964 Executors and Administrators; Intestate Succession Act; Determination of Shares of Brothers and Sisters and Their Lineal Descendants Surviving nephews and nieces by deceased brothers or sisters of the intestate share equally in that portion of the intestate's property not passing to surviving brothers and sisters of the intestate. 8 May 1963 Executors and Administrators; Intestate Succession Act; Distribution to Children and Grandchildren The Intestate Succession Act, which became effective July 1, 1960, pro-vides that the distribution of property in all classes shall be on a per capita basis. 17 December 1962 Executors and Administrators; Legal Fees; Estate Tax Controversy Involving Nonprobative Assets of Decedent Where an executor employs counsel to assist him in the administration of the estate, the contract is personal and not a debt against the decedent's estate. The executor must pay it, and if the disbursement were reasonably necessary to conserve the estate, it will be allowed him in settlement of his account as a necessary expense of administering the estate. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 51 31 December 1963 Executors and Administrators; Nonresident; Ancillary Administration Where a nonresident dies leaving personal property in this State, an ancillary administration is required in the county where the property is located. 7 August 1962 Executors and Administrators; Sale of Real Property to Make Assets for Payment of Debts; Necessary Parties There is no requirement that the spouses of heirs or devisees be joined as parties defendant in a special proceeding for the sale of real property owned by the testator to make assets for the payment of his debts. i - 24 January 1964 Executors and Administrators; Sale of Eeal Property to Make Assets; Rights of Judgment Creditors of Devisees Where real property of a decedent is sold by his personal representative to make assets to pay debts of the estate, judgment creditors of the heirs or devisees of such real property may assert their interest in any surplus proceeds prior to distribution of such proceeds by the personal representa-tive. Linker v. Linker, 213 N. C. 351. FAIRS 7 September 1962 Fairs; Agricultural; Circuses; Conflicts in Dates A circus does not come within the purview of G. S. 106-516.1, which prohibits the exhibition of carnival or shows "of like kind" within 30 days prior to a regularly advertised agricultural fair. Circus performances as they relate to conflicts in dates with agricultural fairs are governed by G. S. 106-519 and G. S. 105-38. FIRE PROTECTION 19 March 1964 Fire Protection; Departments; Rural Fire Districts; Removing Portion of District There is no statutory procedure for cutting off and removing a portion of a rural fire protection district. 52 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 19 July 1962 Fire Protection; Districts; Election; Petition A petition signed by the requisite number of property owners, addressed to the county commissioners, asking for the creation of a fire protection district and for the levy of a tax in support thereof "of not exceeding five cents (54) on the one hundred dollar ($100.00) valuation" is valid, although the statute sets a maximum rate of taxation at 15(!S on the $100,00 valuation. 9 November 1962 Fire Protection; Firemen; Firemen's Pension Fund; Retiring After 30 Years of Service but Before Reaching the Age op 55 Years Under the provisions of G. S. 118-25, a fireman v^^ho is 51 years of age, has had more than 30 years of service in a department and who is other-wise eligible, may retire before age 55 and continue his membership in the North Carolina Firemen's Pension Fund by making his monthly payments until he reaches the age of 55 or until he has made monthly payments into the fund for 30 years, whichever is the earlier. 7 December 1962 Fire Protection; Oath of Office of Commissioners of Rural Fire Protection Districts The oaths of office of commissioners of rural fire protection districts established pursuant to G. S. 69-25.1 et seq. are prescribed by G. S. 11-6, 11-7 and 11-11. GUARDIANS 3 July 1962 GUARDIANS; Guardian and Ward; Foreign Guardian; Sale of Realty and Removal of Proceeds Real property located in North Carolina and belonging to a nonresident ward may be sold or otherwise converted into personalty as an incident to a proceeding in which a foreign guardian seeks removal of the ward's personalty from North Carolina to the state of the ward's residence. 4 September 1962 Guardians; Guardian and Ward; Parent's Duty to Support Where Child Has Independent Estate Where a father is dead and the mother has adequate financial resources, she is responsible for the support, maintenance and education of the child even though the child might have a separate estate of its own. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 53 3 January 1964 Guardians; Investment op Funds; Diversified Common Stocks A guardian may invest the funds of his ward in diversified common stocks provided he uses good faith and due diligence in making such invest-ments. HEALTH 3 May 1963 Health; Immunization Against Certain Diseases; Kindergartens Sections 130-91 and 130-93.1 require immunization of children against certain communicable diseases before being allowed to enter school, and the word "school" as used in this context would include kindergartens. 5 December 1963 Health; Local Board of Health; Compulsory Vaccination or Immunization A local board of health has authority to adopt reasonable rules and regu-lations requiring "booster immunizations" with respect to certain infections or diseases such as tetanus, diphtheria and poliomyelitis. 1 October 1962 Health; State Board of Health; Nursing Homes; Licensing; County-Owned Nursing Homes County-owned nursing homes are subject to the provisions of Chapter 130 of the General Statutes relating to the licensing of nursing homes. 22 March 1963 Health; State Board of Health; Polio Immunization; Schools; Immunization Before Admission to School The law requires proof of polio immunization before a child can enter or attend any public, private or parochial school in this State (except for the sections relating to the child's health or religious objections). 13 March 1964 Health; State Board of Health; Restaurants; Regulations; Free Toilet Facilities The regulations of the State Board of Health requiring that free toilet facilities be made available for employees and patrons of restaurants and 54 BIENNIAL REPORT OF THE ATTORNEY GENERAL, [VOL. certain other foodhandling establishments are valid and authorized by Sec-tion 72-46 of the General Statutes. 31 March 1964 Health; State Board op Health; Tuberculosis; Spreading of Communicable Tuberculosis A person who has tuberculosis in an active, infectious stage is guilty of a criminal law violation if he refuses to submit to appropriate treatment. 8 April 1963 Health; Tuberculosis Patients; Right to Home Treatment With respect to tuberculous persons, when there is no danger to the public or to other individuals as determined by the health director, the tuberculous person may receive treatment at home. HIGHWAYS 29 April 1963 Highways; Extension of Blue Ridge Parkway; Enabling Legislation Should the Federal Government authorize a spur to be built extending the Blue Ridge Parkway from a point in North Carolina near Beach Gap to the Georgia State line, no new legislation is necessary in North Carolina in order for the State of North Carolina to acquire the necessary right of way for said extension due to the provisions of G. S. 136-19. 20 May 1964 Highways; Signing of Dual Lanes The use of signs designated "Divided Highway" and "Keep Right" at the beginning of a dual lane highway, where lanes are separated by a median, and one-way traffic only is permitted on each of the separate lanes, is in conformance with the Manual on Uniform Traffic Control Devices; and is an appropriate sign within the meaning of G. S. 20-165.1 indicating the direction of traffic on a one-way portion of the dual lane highway. HOSPITALS 28 May 1964 Hospitals; Counties; Public Bidding; Purchase of Insurance ON Hospitals In obtaining insurance on county-owned buildings, it is not necessary to follow the public bidding provisions of Article 8 of Chapter 143 of the General Statutes. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 55 17 May 1963 Hospitals; Eminent Domain and Condemnation Wayne County Memorial Hospital, owned by the County, has the power of condemnation as provided in G. S. 131-28.14 to condemn private property for a hospital purpose. 10 April 1963 Hospitals; Mental Institutions; Disclosure of Contents of Records; Names of Patients Listed in Psychiatric Register Names of patients listed in the Hospitals Board of Control psychiatric register are privileged to the extent provided in G. S. 122-8.1 and G. S. 8-53. 12 April 1963 Hospitals; Public; Hospital District; Issuance of Bonds Article 13C of Chapter 131 of the General Statutes does not restrict a hospital district to a single bond election. Bond elections may be had from time to time if petitioned for. 27 September 1963 Hospitals; Staff Physicians in State Hospitals; Liability for Results of Official Acts A State hospital is classified as a charitable institution and would not be liable for the negligence of its servants and employees provided they had used due care in their selection and retention. 5 April 1963 Hospitals; State Hospitals; Educational Institutions; Infirmaries The Hospital Licensing Act applies to all State hospitals but not to edu-cational institutional infirmaries. INSANE AND INCOMPETENTS 9 July 1962 Insane and Incompetents; Certifying Physicians in Connection with Commitment of Alleged Mentally Disordered Persons to State Hospitals Being a staff member of a State institution does not disqualify a physi-cian, who otherwise meets the requirements of G. S. 122-43, from making certification of alleged mentally disordered persons for commitment to 56 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. State hospitals, provided the certifying physician is a member of the staff of the institution to which commitment is contemplated. 22 October 1963 Insane and Incompetents; Commitment Procedure; Notice of Hearing For persons judicially committed to mental institutions prior to July 1, 1963, the procedure as it existed prior to the 1963 Amendments, which be-came effective July 1, 1963, is applicable. 24 September 1962 Insane and Incompetents; Inmates of State Hospitals; Procedure When Surgical Operations on Inmates are Necessary Under North Carolina G. S. 130-191, medical staff of any State hospitals or other State institutions is authorized to operate on inmates where neces-sary to improve inmate's physical or mental condition. Decision to be made by chief medical officer of institution with approval of superintendent and with advice of institution's medical staff. No operation to be made without consent of inmate or, if inmate non compus mentis, by responsible member of family or a guardian, 22 October 1963 Insane and Incompetents; Non-Resident Infant Having Real Property in this State; Guardianship The Clerk of Superior Court of a county in North Carolina in which there is located real estate owned by a non-resident infant, is authorized, upon proper showing that the infant has a guardian in his or her state and does not have a guardian in North Carolina, to appoint an ancillary guardian in the North Carolina clerk's county where the property is located. N. C. G. S. 33-31.2. 20 March 1963 Insane and Incompetents; Persons Already in Hospital; Hearing Before Clerk as to Indefinite Commitment; Venue and Jurisdictions Where a person has been committed to mental institution for temporary period of observation, the hearing at the end of that period on the question of final commitment must be held by the clerk of and in county of person's residence, if known; otherwise, hearing must be held by clerk of and in county who ordered initial, temporary commitment. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 57 INSURANCE 3 June 1963 Insurance; Contract; Validity of Certified Copy of General Power of Attorney Opinion given that a certified copy of the general power of attorney-issued in conjunction with a guaranty contract by an insurance company is valid and binding upon the insurance company if the corporate seal is attached thereto, citing G. S. 55-36 (c) and (d). 22 May 1964 Insurance; Debt Cancellation Contracts; National Banks National banks engaging in the insurance business in this State are sub-ject to the provisions of Chapter 58 of the General Statutes of North Carolina and such banks must comply with the insurance laws of North Carolina in negotiating debt cancellation contracts. V . 6 March 1963 Insurance; Group Life; Putnam Plan, Sale of Securities With Group Life Insurance Sale of securities under a plan which includes group life insurance with the seller of the securities as the insured and resulting in distribution of life insurance proceeds to the seller at the death of the purchaser and where the purchaser is not obligated to continue payments for any period of time or for any definite amount, is one in which the seller has no insur-able interest in the life of the purchaser of the securities. '^- 1 November 1962 Insurance; Hospital, Medical and Dental Service Corporations; Donations for Religiols, Charitable, Scientific or Educational Purposes Not Allowed Hospital, medical and dental service corporations organized and oper-ated under Chapter 57 of the General Statutes are not permitted by law to make donations for religious, charitable, scientific or educational pur-poses. 16 August 1962 Insurance; Offering Inducements, Other Than Provided in the Policy, to American Legion Post Members Prohibited; Soliciting Insurance by Unlicensed Agents; Violation op Insurance Laws Plan of an insurance agent to use unlicensed members of an American Legion Post to solicit insurance business from Post members and to donate 58 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 50% of the first quarterly premium to the American Legion Post would, if consummated, violate the anti-rebate statute, G. S. 58-44.5, and G. S. 58-51.3 prohibiting use of unlicensed persons to solicit insurance business. 5 August 1963 Insurance; State Employees' Group Insurance; Accumulated Funds The State Highway Commission, in deducting sums from employees' salaries for payment of group insurance premiums, acts as a trustee for the employee, and any sums deducted in excess of the amount required to pay the premium should be returned to the employee from whom it was received. JURIES; JURORS 24 September 1963 Juries; Jurors; Challenges; Special Venire; Criminal Law A special venireman drawn from the jury box is on the same standing as a regular juror and is not subject to challenge for cause for having served on the jury within two years prior to the term. A special venireman who has not been drawn from the jury box is sub-ject to the same challenges for cause as tales jurors. STATE v LEVY, 187 NC 58L LABOR 3 December 1963 Labor; Department of Labor; Hours of Work for Women in Certain Industries; Waitresses in Hotels; Motel Dining Rooms and Coffee Shops While employees of hotels and motels are exempt from G. S. 95-17, never-theless, waitresses in hotels, motel dining rooms and coffee shops are covered by G. S. 95-27 restricting their work hours to ten hours per day and fifty-five hours per week. 18 February 1964 Labor; Department of Labor; North Carolina Voluntary Apprenticeship Act; State Apprenticeship Council; Federal Regula-tions AS to Nondiscrimination in Apprenticeship and Training State Apprenticeship Councils, with the approval of the Commissioner of Labor, can adopt federal standards as to nondiscrimination in appren- 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 59 ticeship agreements but are not compelled to do so; it is suggested that after consultation with employers such standards might be adopted for projects under federal contract or projects which are developed and con-structed in whole or in part by federal funds. LOTTERIES 4 March 1963 Lotteries; Pinball Machines The possession, sale, use or operation of pinball machines is not per-mitted in North Carolina. See G. S. 14-306. 28 April 1964 Lotteries; What Constitutes a Lottery In order to constitute a lottery in this State, there must be three elements present, to wit: (1) a prize; (2) a consideration; and (3) the winner of the prize is to be determined by some formula of chance. The rule is that, where the winner of a contest is partly determined by chance and partly by the skill of the contestant, the scheme is a lottery, provided the element of chance is predominant. On the other hand, if the element of skill predominates over that of chance, the scheme or plan is not a lottery. MARRIAGE 13 July 1962 Marriage; Authority of a Justice of the Peace to Perform a Marriage Ceremony Outside his County A justice of the peace may not perform a marriage ceremony in a county other than his own. 19 November 1963 Marriage; Authority to Perform Marriage Ceremony Under the provisions of G. S. 51-1, a marriage ceremony may be per-formed in this State in the presence of an ordained minister of any religious denomination, minister authorized by his church, or of a justice of the peace. 60 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 3 September 1963 Marriage; Chinese; Residence There is no law in this State prohibiting the marriage of a Chinese resi-dent to a white resident. It is not necessary to be a resident of North Carolina in order to get married in this State. 2 January 1964 Marriage; Licenses; Correction of Mistakes in Name Section 51-18.1 of the General Statutes authorizes the register of deeds to correct errors as to names on applications for marriage licenses, mar-riage licenses issued thereunder, and returns or certificates of officiating officers. 3 June 1964 Marriage; Licenses; Failure to Return; Validity of Marriage Unaffected The validity of a marriage is not affected by the failure of the person performing the ceremony to return the license to the Register of Deeds. 7 October 1963 Marriage; Out-of-State Marriage; N. C. Residents; Filing op Certificate with a Register of Deeds North Carolina residents who marry outside the State must, within 60 days after return to this State, file a certificate showing compliance with the North Carolina statutes relating to premarital health examinations. 5 November 1963 Marriage; Parents' Consent; Which Parent When a person of sixteen years of age and under eighteen is residing with both his father and mother, the written consent of either parent fulfills the statutory requirement of written consent. 24 June 1964 Marriage; Proxy Marriage; Not Authorized in North Carolina North Carolina law does not authorize absentee or proxy marriage cere-monies to be performed in this State. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 61 MERIT SYSTEM COUNCIL 7 August 1962 Merit System Council; Rule; Political Activity; Caseworker Elected Member of Town Board of Aldermen in Non-Political Election; Hatch Act Neither the Federal statutes nor the Merit System Rule prohibits a per-son employed under the Merit System from serving as a member of the board of aldermen of a town where the election is nonpartisan and is not related to political parties. MILITIA 23 January 1964 Militia ; Six Months' Active Duty for Training; Applicability of Soldiers' and Sailors' Civil Relief Act The provisions of the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. App. §§501-548, 560-590) apply to a member of the Army National Guard while he undergoes the required six-months' period of active duty for training. MOTOR VEHICLES 24 April 1963 Motor Vehicles ; Driver's License ; Chauffeurs ; Farmers Hauling Labor Under G. S. 20-6 farmers hauling farm labor on trucks of over nine passenger capacity are required to possess chauffeur's license. 28 November 1962 Motor Vehicles; Driver's License; Chauffeurs; Nonresident Employed BY North Carolina Corporation A nonresident chauffeur employed by a North Carolina corporation would be required to possess a valid North Carolina chauffeur's license in order to operate trucks of his employer over the highways of this State notwithstanding the fact that such nonresident may possess a valid chauffeur's license from his state of residence. 62 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. 2 April 1963 Motor Vehicles; Driver's License; Driving While License Suspended; FAILURE TO File Proof of Financial Responsibility Following Stated Period of Suspension A person Mrho operates a motor vehicle after the stated period of suspen-sion of his license has expired but before filing proof of financial responsi-bility would be chargeable under G. S. 20-28 (a) for driving while license suspended. His punishment upon conviction of such offense would depend upon whether or not his license had been reinstated by the Department of Motor Vehicles following the stated period of suspension. If his license had not been reinstated, he would be punishable as provided for persons convicted of driving while license suspended. On the other hand, if his license had been reinstated following the stated period of suspension and he had failed to maintain financial responsibility subsequent to the loss of his license for this cause, he would be punishable as for operating with no operator's license. 12 March 1963 Motor Vehicles; Driver's License; Driving While License Suspended; Penalty A restoree of a suspended or revoked operator's license, within the con-templation of G. S. 20-28, is a person whose license has been reinstated by the Department of Motor Vehicles for some period of time following the stated period of suspension contained in the suspension or revocation order of the Commissioner of Motor Vehicles. Mere expiration of the stated period of suspension contained in the Commissioner's suspension order does not constitute such person a restoree. 25 September 1962 Motor Vehicles; Driver's License; Nonresident Operator's License; Fifteen-Year-Old Minors A minor fifteen years of age, even though properly licensed in his home state, may not operate a motor vehicle on the highways of North Carolina. 27 September 1962 Motor Vehicles ; Driver's License ; Operation of Farm Tractor by Minor A farm tractor is a "motor vehicle" as that term is defined in the Uniform Driver's License Act and a person who permits an unlicensed minor to operate a farm tractor contrary to the provisions of the Uniform Driver's License Act would be in violation of G. S. 20-34. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 63 26 November 1962 Motor Vehicles; Driver's License; Resident Driving on Out-of-State License A resident of North Carolina may not operate a motor vehicle over the highways of this State on an out-of-state driver's license even though such operation may amount to only a small proportion of the total miles driven by the North Carolina resident. 24 October 1963 Motor Vehicles; Engaging in Business as Motor Vehicle Dealer An automobile rental agency, which places its own rental cars on its lot for sale after it is determined that they need to replace them with newer models for rental purposes, is not engaging in the sale of motor vehicles, requiring the payment of a license privilege tax; neither does it subject them to the Motor Vehicle Dealers Licensing Law. - 18 March 1963 Motor Vehicles; Interpretation of G. S. 20-158 (a) ; Stopping at a Stop Sign and Yielding Right of Way G. S. 20-158 (a) describes two offenses rather than two elements of the same offense. The statute is violated where a motorist either fails to stop at a stop sign or, having stopped, fails to yield right of way. 22 January 1963 Motor Vehicles; Municipal Regulations; Direction Signs at Intersections Direction signs Installed by local authorities pursuant to G. S. 20-153 (c) must be authorized by ordinance of the local governing body in the same manner as other traffic ordinances are adopted. 25 October 1963 Motor Vehicles; Operator of Motor Vehicle Having a Non-Owner's Liability Policy; Owner Permitting Same to be Operated Without Liability Insurance A licensed operator of a motor vehicle who has a non-owner's liability insurance policy does not violate any laws of this State by operating a motor vehicle owned by another person and which vehicle is not covered by liability insurance through the owner. The owner of a motor vehicle, which is registered or required to be registered in this State, who either operates or permits such motor vehicle to be operated and does not have in full force and effect the financial 64 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. responsibility required by Article 13 of Chapter 20 of the General Statutes of North Carolina would be guilty of violating G. S. 20-313 and subject to punishment provided thereby. A justice of the peace would not have jurisdiction to try any person violating the provisions of G. S. 20-313. 18 June 1963 Motor Vehicles; Red Lights on Automobiles Owned by Members op Rescue Squads Use of red lights on privately owned automobiles of members of rescue squads are prohibited and the operator of rescue squad trucks must comply with speed restrictions and regulations. 9 March 1964 Motor Vehicles ; Registration ; Air Compressors and Welding Machines Permanently Mounted on Wheels for Transporting From One Job to Another An air compressor or welding machine permanently mounted on wheels for the transporting of same from one job to another is not subject to the registration laws of Chapter 20 of the General Statutes of North Carolina, unless the same is placed upon a trailer for such transportation, in which event the trailer would be subject to registration. 24 August 1962 Motor Vehicles; Registration; Dealer's Tags A person who operates a motor vehicle owned by a dealer and displaying dealer tags for the purpose of road testing it must have in his possession a permit from the dealer for a period not to exceed 96 hours, unless accom-panied by the dealer or an employee of the dealer. Operation without the permit is in violation of the motor vehicle registration laws, and a dealer who knowingly permits such operation has himself violated the law. 5 July 1962 Motor Vehicles; Suspended Sentence; Suspension of License A Recorder's Court Judge may as a condition of suspension of a sentence prohibit the defendant from operating a motor vehicle for a reasonable period of time. 37] BIENNIAL REPORT OP THE ATTORNEY GENERAL 65 MUNICIPAL CORPORATIONS 7 May 1964 Municipal Corporations; Abandonment of Streets within Newly Annexed Areas by the Highway Commission The State Highway Commission under G. S. 136-66.2 (f) can abandon streets which Avere not within municipalities or were not on the State Highway System as of July 1, 1959, without the consent of the municipality. 29 May 1964 Municipal Corporations; Acquiring Property Outside Corporate Limits FOR Public Park and Receational use A municipality may accept property outside its corporate limits for park purposes when said park is operated in a governmental capacity for the direct benefit of the citizens of the m.unicipality. 31 July 1962 Municipal Corporations; Acquisition of Personal Property; Lease With Option to Purchase A municipality may acquire personal property by lease with option to purchase. 19 August 1963 Municipal Corporations; Acquisition of Sewer Easement by Adverse Possession A municipality may acquire a sewage easement by prescription if it can prove all elements necessary to be shown as in the case of the acquisition of title to real property by adverse possession. The municipality must have been in possession for a period of at least twenty years, unless otherwise provided in the municipal charter, and must bear the burden of proving that the user was adverse rather than permissive. 4 March 1963 Municipal Corporations; Ad Valorem Taxes; Penalty for Late Listing The Machinery Act provides a penalty of 10% for late listing of property for ad valorem taxes, with a minimum penalty of $1.00. 4 April 1963 Municipal Corporations; Amendment of City Charter; Construction OF City Streets G. S. 160-200, Subsection 11, gives a municipal corporation control over the streets in the municipal corporation. 66 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. Article VII, Subsection 13 of the Constitution, states that the General Assembly shall have control over the acts of a municipal corporation. 6 September 1962 Municipal Corporations; Appropriation from Nontax Funds for Recreational Purposes; Purchase op Athletic Uniforms A municipality may law^fully spend nontax funds to purchase athletic uniforms for Little League ballplayers organized in the municipality. 30 October 1963 Municipal Corporations; Authority to Give, Sell or Lease Municipal Property to Chamber of Commerce; Erection of Building Owned by Chamber of Commerce on City Property A municipality is not authorized to donate, sell or lease property held in trust for the city or proprety devoted to a governmental use. A municipality may not donate its property or grant privileges to one class of persons not to be enjoyed by all except in consideration of public service. 26 September 1962 Municipal Corporations; Authority to Purchase Insurance in Mutual Insurance Companies Counties, municipalities, and boards of education may purchase insurance in mutual insurance companies. 31 January 1964 Municipal Corporations; Barber Shops; Regulation of Hours Municipalities have authority to regulate the hours which barber shops operate. 15 May 1964 Municipal Corporations; Civil Defense; Authority of City Council op High Point and the Civil Service Commission of High Point as it Relates to the Local Director of Civil Defense Pursuant to Chapter 166 of the North Carolina General Statutes, the local governing body of a political subdivision has the authority to hire and remove the local civil defense director and this authority shall not be delegated to any commission or agency within the political subdivision. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 67 15 February 1964 Municipal Corporations; Constitutional Law; Validity of Ordinance OF Chapel Hill Regulating Picketing A town ordinance regulating the time, place and manner of picketing is a valid regulation of the use of the streets of the Town under authority delegated to the Board of Aldermen by the General Assembly; the ordi-nance does not violate freedom of speech and assembly as guaranteed by the First Amendment and made applicable to the States through the Fourteenth Amendment; the Ordinance is neutral and does not discriminate against persons or groups because of race, color or creed; the ordinance does not violate the Equal Protection Clause or the Due Process Clause of the Fourteenth Amendment. 2 December 1963 Municipal Corporations; Counties; Water and Sewage Services; Joint Projects Article 24 of Chapter 153 of the General Statutes authorizes the estab-lishment of water and sewer lines jointly by towns and any county to industrial plant sites located outside the municipal limits of a town. 31 July 1963 Municipal Corporations; Counties; Water Supply; No Authority in County to Compel Fluoridation A board of county commissioners has no authority to compel a muni-pality to fluoridate its water supply. s 12 July 1963 Municipal Corporations; Drainage Districts; Applicability of County Fiscal Control Act Under the provisions of G. S. 153-114 (a), the County Fiscal Control Act is applicable to drainage districts. 7 May 1964 Municipal Corporations; Drainage Districts; Powers of Commissioners, Authority to Permit Use op Dikes by Private Persons as Haulways FOR Lumbering Operations Commissioners of a drainage district have no authority to give permis-sion to a private person to transport timber and timber products over a dike constructed and maintained by the drainage district. 68 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 3 September 1962 Municipal Corporations; Easement for Sewer Lines; Compensation FOR Easement; No Right to Furnish Free Sewer Service A municipality does not have authority to agree to furnish a certain property owner sewer service free for an indefinite period as compensation for the sewer line easement across the property. 3 December 1963 Municipal Corporations; Eminent Domain; Sewerage and Waterworks; Condemnation of School Property by a Municipality for Sewage System Purposes In the exercise of a general power of eminent domain, a municipality may condemn lands belonging to a county school board where the lands are not in actual public use or not needed for school purposes, provided that the public use to be established thereon will not destroy the existing use of the remainder of the tract or interfere with the existing use to such an extent as is tantamount to a further taking or destruction. 4 January 1963 Municipal Corporations; Extension of Corporate Limits; Annexation Proceedings The new annexation proceedings statutes for municipalities enacted as Chapters 1009 and 1010 of the Session Laws of 1959 were not prospectively repealed by the provisions of Section 11 of both acts as immaterially amended in 1961 regardless of the later codification of the two basic acts as Parts 2 and 3 of Article 36 of Chapter 160 of the General Statutes as the same appear in the 1961 Cumulative Supplement to Volume 3C. 5 September 1962 Municipal Corporations; Extension of Corporate Limits; Meaning of Word "Contiguous" An area to be annexed by a municipality, which is connected to the exist-ing boundaries of the municipality merely by the right-of-way of a State highway, is not "contiguous" to the municipality within the meaning of G. S. 160-452. 5 December 1962 Municipal Corporations; Fire Districts; Extension of Limits The mere extension of a city's fire district so as to include an area zoned differently than the area within the existing fire district does not auto-matically extend the zoning classification of the existing fire district into the new area. 37] BIENNIAL REPORT OF THE ATTORNEY GENERAL 69 5 March 1964 Municipal Corporations; Fire Protection; Contract With County; Municipal Liability Outside City Limits When a municipality authorizes its fire department to answer a call outside the city limits, the city has the same privileges and immunities as if a call were being answered within the city limits. 2 January 1963 Municipal Corporations; Governing Boards of Municipalities are Required to Keep a Record of all Meetings Governing bodies of municipalities, including town clerks, are required to keep a full and accurate journal of all its proceedings, which journal shall be open to public inspection. See G. S. 160-269. 17 August 1962 Municipal Corporations; Industrial Development; Appropriation of Funds for Advertising Purposes Unless a local law provides otherwise, a municipality does not have authority to expend public funds to advertise the city and attract industry except pursuant to the provisions of Chapter 158 of the General Statutes. 24 July 1963 Municipal Corporations; Jails; Contracts to House Prisoners of Another Town A municipality has implied authority to contract with another municipal-ity for use of its jail facilities. 28 November 1962 Municipal Corporations; Jurisdiction; Regulation of Railroad Crossings; Railroad Crossing Protection Municipalities have jurisdiction over requiring safety devices at railroad crossings not on the State highway system, but the Highway Commission has exclusive jurisdiction in this regard where crossings are on the high-way system. 23 May 1963 Municipal Corporations; Meetings of City Council; Open Sessions; Live Broadcasting of Proceedings Under the general laws of this State, meetings of a city governing body must be open to the general public. 70 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 29 November 1962 Municipal Corporations; Municipal Police Officers; Arrest of Violators Outside Municipal Limits A municipal police officer in hot pursuit of a person found to be violat-ing the liquor laws of this State may pursue such violator beyond the municipal limits and arrest the violator. G. S. 18-45 (o). 11 July 1962 Municipal Corporations; Officers; Residence Requirements of Chief OF Volunteer Fire Department and City Policeman A fire chief of a municipal volunteer fire department and a city police-man are public officers and must be residents of the municipality in which they serve. - 24 February 1964 Municipal Corporations; Ordinances; Authority op City Council to Enact So-Called Public Accommodations Ordinance A municipal corporation is not legally authorized to enact a public accom-modations ordinance requiring the owner or operator of a hotel, motel, restaurant or theater to admit persons to the use of his accommodations and facilities regardless of race, color or creed; such an ordinance, if enacted, would take away the individual choice of the owner or operator and would be contrary to our trespass law (G. S. 14-134). 16 December 1963 Municipal Corporations; Ordinances; Subdivisions An incorporated city or town which has been exempted from the pro-visions of G. S. 160-226, et seq., pertaining to subdivision ordin |
OCLC Number-Original | 5792362 |