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THE LIBRARY OF THE UNIVERSITY OF NORTH CAROLINA THE COLLECTION OF NORTH CAROLINIANA C3U0 we? a 19^8-60 UNIVERSITY OF N.C. AT CHAPEL HILL 00033944983 This book must not be token from the Library building. Digitized by the Internet Archive in 2011 with funding from Ensuring Democracy through Digital Access (NC-LSTA) ,,, ,1 http://www.archive.org/details/biennialrep1958attrny1960 BIENNIAL REPORT OF THE ATTO RNEY GENERAL OF THE State of North Carolina VOLUME 35 1958-60 MALCOLM B. SEAWELL* THOMAS WADE BRUTON ATTORNEY GENERAL Claude L. Love** Harry W. McGalliard Peyton B. Abbott Ralph Moody Kenneth F. Wooten, Jr. F. Kent Burns Basil L. Sherrill* Lucius W. Pullen H. Horton Rountree Glenn L. Hooper, Jr. Thomas L. Young Assistant Attorneys General \ * Resigned *• Deceased LETTER OF TRANSMITTAL 1 January 1961 To His Excellency Terry Sanford, 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 1958-60. Respectfully yours, Thomas Wade Bruton, Attorney General LIST OF ATTORNEYS GENERAL SINCE THE ADOPTION OF CONSTITUTION IN 1776 Term of Office Avery, Waightsill 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 1868-18''9 Olds, Lewis P 18*^9-1870 Shipp, William M 1870-1872 Hargrove, Tazewell L 1872-1876 Kenan, Thomas S 1876-1884 Davidson, Theodore F 1884-1892 Ofborne, 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 1935-19''8 McMullan, Harry 1938-1955 Rodman, William B., Jr 1955-1956 Patton, George B 1956-1958 Seawell, Malcolm B 1958-1960 Bruton, Thomas Wade 1960- EXHIBIT I Civil Actions Pending in State and Federal Courts During the Biennium 1958-60 : Number of Cases Pending in the Superior Court of North Carolina State Taxes 36 Motor Vehicle Drivers' Licenses 41 Condemnation Proceedings 261 tjtilities Commission Cases 10 Beer and Wine License Revocations 19 Other 43 TOTAL 410 Pending in the Supreme Court of North Carolina State Taxes 2 Utilities Commission Cases 4 Other 2 TOTAL 8 Pending in the United States District Courts State Taxes 9 Other 3 TOTAL 12 Pending Before U. S. Federal Trade Commission Other 1 Civil Cases Disposed of During the Biennium 1958-60 In the Superior Courts of North Carolina 366 In the Supreme Court of North Carolina 28 In the Supreme Court of the United States 1 In the District Courts of the United States 5 In the Durham County Civil Court 1 Before the North Carolina Industrial Commission . . . 800 Habeas Corpus Petitions Disposed of in the Superior Court 228 TOTAL 1,429 6 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. EXHIBIT II Criminal Cases Disposed of in the North Carolina Supreme Court During the Biennium 1958-60: Abandonment-Nonsupport 4 Abortion-Procuring 2 Assault 2 Assault on Female 3 Assault with Deadly Weapon 6 Assault with Intent to Rape 2 Breaking-Entering-Larceny-Receiving 9 Bribery 1 Burglary Second Degree 1 Carnal Knowledge 1 Carrying Concealed Weapon 1 Conspiracy 4 Embezzlement 2 Felonious Assault 3 Felonious Burning of Property 2 Injury to Personal Property 3 Lottery 2 Manslaughter 17 Murder First Degree 5 Murder Second Degree 2 Perjury 2 Rape 6 Riot 5 Robbery 4 Seduction 1 Violating City Ordinance 1 Violating Election Laws 1 Violating Junk Yard Laws 1 Violating Liquor Laws 12 Violating Motor Vehicle Laws 25 Violating Real Estate License Law 1 Violating Seed Sale Laws 1 Worthless Check 1 TOTAL 183 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 7 Number of Cases dismissed on motion during the Biennium 1958-60 11 Number of Petitions for Writ of Certiorari denied during the Biennium 1958-60 77 Number of Petitions for Writ of Certiorari allowed during the Biennium 1958-60 8 Number of Petitions for Writ of Error Coram Nobis denied during the Biennium 1958-60 1 Number of Petitions for Writ of Habeas Corpus denied during the Biennium 1958-60 1 Number of Petitions for Writ of Mandamus denied during the Biennium 1958-60 1 Fees Transmitted by the Attorney General to the State Treasurer During the Biennium 1958-60 . . $ 960.00 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. SUMMARY OF ACTIVITIES Staff Personnel Since the publication of the Biennial Report 1956-58, the State sustained the loss, by resignation, of Attorney General Malcolm B. Seawell. The present Attorney General, by appointment of Governor Hodges, succeeded him. During the biennium the State also sustained a great loss by the death of Assistant Attorney General Claude L. Love. From the time of his appointment on August 16, 1951, until his untimely death on November 11, 1959, Mr, Love served the State unselfishly and efficiently, bringing to bear upon a host of State and local legal problems a keen legal mind, a wealth of learning and a sympathetic and understanding consideration. Assistant Attorneys General who were serving at the close of the bien-nium are as follows: Harry W. McGalliard, Peyton B. Abbott, Ralph Moody, Kenneth F. Wooten, Jr., F. Kent Burns, Lucius W. Pullen, H. Hor-ton Rountree, Glenn L. Hooper, Jr., and Thomas L. Young. At the close of the biennium Giles R. Clark was serving as Revisor of Statutes. Staff Attorneys who were serving at the close of the biennium are as follows: Parks Icenhour, William R. Pierce, Charles D. Barham, Jr., Richard T. Sanders, Bernard A. Harrell, Charles W. Barbee, Jr., G. Andrcv. Jones, Jr., Harrison Lewis, Carl C. Churchill, Jr., Harold D. Coley, Jr., James F. Bullock, John C. Daniel, Jr., and Andrew H. McDaniel. Members of the secretarial staff who were serving at the close of the biennium are as follows: Miss Elizabeth N. Flournoy, Mrs. Lorraine H. Allers, Mrs. Carolyn D'Alio, Miss Aida Epps, Mrs. Ethel Burt Kelly, Mrs. Katharine L. Dowd, Mrs. Cleo A. Purcell, Mrs. Jean C. Spence, Mrs. Edna Jerome, Mrs. Helen W. Bagwell, Mrs. Barbara C. Owens, Mrs. Grace Gardner, Mrs. Katharine Lassiter, Mrs. Alice C. Gorham, Miss Virginia Lyon, Mrs. Mary E. Green, Miss Sylvia Kinlaw, Mrs. Shirley Cox, Mrs. Joyce Clark, Mrs. Annie Lou Cahoon. Highway Division of Attorney General's Office During the period of this biennium the Attorney General in the discharge of his responsibilities to represent the State Highway Commission and its Director has undertaken and has effectuated a reorganization of his staff so as to more efficiently represent the Commission in the increasing number of condemnation suits brought against the Commission and to eliminate insofar as possible the backlog of cases which had accumulated in the courts throughout the State against the Commission. The number of con-demnation cases against the State Highway Commission has been reduced from a total of 526 as of July 1, 1958, to a total of 261 as of July 1, 1960. During this same period an increasing number of the older cases has been disposed of and a large number of cases has been disposed of by trial of the issues to a jury verdict. During the 1959 Session of the General Assembly, there was enacted a new condemnation procedural law which very markedly changes the con-demnation procedure which the State Highway Commission must follow 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 9 in acquiring rights of way for highways. The effective date set in the Act was July 1, 1960. Prior to the effective date of the Act the members of the staff of this office have developed procedure for handling these cases so that the construction work of the State Highway Commission will not be delayed by the requirements that the Commission institute such actions in the Superior Court on those matters which have not been settled or upon which agreement has not been secured by the property owner for entry prior to the letting of the contract for construction of such highway pro-jects. It is anticipated that approximately 750 to 1,000 of the cases will be instituted annually. During the biennium the members of this staff have participated with the administrative personnel of the Highway Commission in the determina-tion of a number of claims brought by Highway contractors arising out of the contract work carried on by the Commission. The State Highway Commission has been represented in the Supreme Court in twelve cases during the period by the members of this staff. At the conclusion of the biennium there were no cases involving the State Highway Commission pending in the Supreme Court. Throughout the biennium the staff has had the very complete cooperation of the State Highway Commission and the Director of Highways in the prosecution of the Attorney General's work for the State Highway Com-mission. 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. 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 Laws, 1959). The effective date of this Act was July 1, 1959. During the biennium from July 1, 1958, to July 1, 1960, a total of 1230 tort claims was filed against the various departments, institutions and agencies of the State. Approximately 500 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. 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 300 disputed claims involving State employees were heard by the Commission. 10 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. DIGEST OF OPINIONS AGRICULTURE 1 March 1960 Agriculture; Fertilizer; Simultaneous Application of Registered and Unregistered Fertilizer The simultaneous application by a contractor of a registered and un-registered fertilizer, the unregistered fertilizer having been supplied by the farmer, does not constitute a sale of a "mixed fertilizer" within the contemplation of the North Carolina Fertilizer Law of 1947. 9 September 1959 Agriculture; Food, Drug and Cosmetic Act; Spring Water If natural spring water is advertised as having a therapeutic value and as being intended for use in the cure, mitigation or treatment of certain diseases, such spring water would be considered a drug within the meaning of the North Carolina Food, Drug and Cosmetic Act, and would come within the purview of G. S. 106-38 (b) relating to the advertisement of drugs. 7 April 1960 Agriculture; Marketing; Production and Distribution of Eggs A poultry processor commercially marketing an egg supply obtained as a by-product from the slaughter of poultry is a distributor subject to the provisions of the North Carolina Egg Law (Article 25, Chapter 106) rather than an egg producer and exempt under G. S. 106-245.11. 31 July 1958 Agriculture ; Milk and Dairy Products ; Labeling of Cartons ; Misbranding; Sufficiency of Label G. S. 106-130 and G. S. 106-268 prohibit labeling on containers or cartons containing food, milk or dairy products if it is false or misleading in any particular and require a prominent label showing the name of the defined product and the name of the producer, processor or distributor, as well as an accurate statement of the quantity of contents in terms of weight or measure. Cartons containing milk which emphasize the brand name in large letters with very small letters at the bottom of the carton showing the processor's name are misleading in that they give the impression to the public that the distributor has produced and processed the milk as his own product; ice cream cartons containing the name of a distributor but in truth and fact contain ice cream processed or manufactured by other firms or corporations are misleading when the processor's or manufacturer's name does not appear in prominent letters on the carton ; ice cream cartons containing the name of the company manufacturing same, along with the 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 11 address of the home office or general office, are sufficient as to the name and address of the producer or processor, even though these home offices or general offices may be out of the State, provided, always, a code number designating the name of the plant in which the ice cream is produced or manufactured is stamped on the carton. 30 October 1959 Agriculture; Tobacco Seed Committee; Powers and Duties The Tobacco Seed Committee does not have the authority to refuse to recommend for recording by the Commissioner of Agriculture an identifiable variety of tobacco seed on the ground that such seed will produce tobacco, the leaf of which will not qualify for the full government support price. 27 July 1959 Agriculture; Uniform Weights and Measures; Moisture Testing Meters and Devices Where the North Carolina Department of Agriculture has adopted moisture content tolerances for the various agricultural commodities whose weights per bushel are set out in G. S. 81-23, the Department has sufficient authority to regulate, in accordance with Article 1, Chapter 6 of the rules and regulations of the North Carolina Department of Agriculture, mois-ture testing meters and devices which determine the moisture content of the various commodities. 18 July 1958 Agriculture; Weights and Measures; Tank Trucks; Inspection G. S. 81-18 makes it unlawful for a person to use in business a measuring device which has not been checked and sealed within a year by the weights and measures Division of the State Department of Agriculture. However, when a tank is equipped with a metering device and the tank itself is not used as a method of measuring, the tank in such instances is not a measur-ing device and is not subject to the above referred to statute. APPROPRIATIONS 3 December 1959 Appropriations; General Assembly Expenses; Printing Revenue Act Where the Appropriations Act passed by the General Assembly incor-porated a specific recommendation of the Advisory Budget Commission for the appropriation of funds for the printing of The Revenue Act, as amended, the failure of the General Assembly to enact a statute requiring the print- 12 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. ing of The Revenue Act, as amended, would not have the effect of deleting or defeating the specific appropriation, and the allotment of funds from such appropriation may be made subject to the approval of the Director of the Budget or such person as may be designated or appointed by him in writing to perform that duty. Article 1, Chapter 143 of the General Statutes. ARCHITECTS 13 January 1960 Architects; Practice of Architecture An employee of a corporation in preparing building plans and specifica-tions for the corporate employer is not an "individual making plans for a building for himself" under the provisions of G. S. 83-12. ART 8 February 1960 Art; The North Carolina Museum of Art; Sales from Book Shop Sales made from the Book Shop of the State Museum of Art are exempt from the provisions of G. S. 66-58 which prohibit governmental agencies from engaging in business in competition with citizens of the State. BAIL 30 April 1959 Bail; When Set by Sheriff or Other Officer Having Custody; Author-ity OF Sheriff Where Amount of Bail is Previously Fixed BY A Magistrate The provisions of G. S. 15-108 relating to bail do not authorize a sheriff or other officer having custody of a prisoner to fix the bail of the prisoner and release him where a bail has previously been set for such prisoner by a magistrate. The sheriff or other officer, however, can take the bail of a prisoner in their custody under such terms and amounts as have been fixed by the committing magistrate. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 13 BANKS 17 September 1958 Banks; Application to Establish Bank; Conditional Approval; Effect OF Failure to Meet Condition When an application to form a new bank is approved by the Commissioner of Banks and the State Banking Commission on condition that the proposed bank be approved by the Federal Deposit Insurance Corporation and the F. D. I. C. refused approval, such action terminates that proceeding to establish a nevsr bank. Thereafter, in order to create such bank, it is neces-sary to apply anew to the Commissioner of Banks. 31 October 1958 Banks; Change of Bank's Name; Authority of Commissioner of Banks In view of the fact that the original granting of a charter to establish a bank must be approved by the State Banking Commission, an amendment to the bank's charter, changing its name, is also subject to the approval of the State Banking Commission. 3 April 1959 Banks; Checks Issued on Sunday A check issued in North Carolina on Sunday is just as "good" as one issued on any other day. 18 February 1S59 Banks; Commercial and Industrial Banks; Single Payment Loans; Loan Fees A "single payment" loan is not an installment loan and, therefore, a bank would not be authorized to collect with respect thereto the fees provided for installment loans in Paragraph 3 of Section 53-141 of the General Statutes. 19 June 1959 Banks; Deputy Commissioner of Banks; Oath of Office A Deputy Commissioner of Banks appointed pursuant to H. B. 351, enacted by the 1959 General Assembly, should take an oath of office. 28 May 1959 Banks; Establishment of Branch Bank; Criteria of Commissioner of Banks; Assurance of Solvency of Branch The Commissioner of Banks is not authorized to permit the establishment of a branch bank unless it is demonstrated to the Commissioner's satisfac- 14 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. tion that the branch will be self-supporting in a reasonable period of time and a period of three years is not too long if the Commissioner is of the opinion that a three-year period would reasonably be necessary in order for a new branch to become self-supporting. 2 July 1958 Banks; Examination Fees; Authority to Reduce Fees Section 53-122 of the General Statutes contains certain provisions for the reduction of bank examination fees by the Commissioner of Banks. A mandatory reduction is possible only when a surplus exists in an amount exceeding the estimated cost of operating the office of Commis-sioner of Banks for the ensuing fiscal year. A permissive reduction of fees may be made only if the estimated fees will exceed the estimated operating costs for the ensuing fiscal year and such permissive reduction is subject to two further qualifications: (1) That such reduction shall not be in a percentage greater than fifty percent, and (2) such reduction shall not result in reducing the fees to be collected dur-ing the ensuing fiscal year below the estimated cost of operating the Bank-ing department for such fiscal year. 22 July 1958 Banks; Excise Tax; Inclusion of Bad Debts Charged Off Prior to 1957 and Recovered in 1957 for Excise Tax Banks are not permitted to exclude recoveries of bad debts which were written off in taxable years prior to 1957 when reporting net income for the purpose of the excise tax on banks. 22 July 1958 Banks; Excise Tax; Inclusion of Income from Stock in Federal Reserve Banks Banks must include the income from Federal Reserve Bank stock in net income for purposes of the excise tax on banks. 9 February 1959 Banks; Form of Share Certificate; Statement As to Par Value of Each Share When a bank reduces the par value of its common stock, it must issue new stock certificates because the statutes require thiat each share certificate shall state on its face the par value of each share, and the requirements of the statutes would not be met by sending out stickers to be pasted on the old certificates. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 15 30 December 1958 Banks; Saturday Closing; Change from Five-day Week back to Six-day Week Once the banks of a community have begun operation on a five-day week basis pursuant to the provisions of G. S. 53-77.2, no statutory procedure exists for reverting to a six-day w^eek. 15 July 1958 Banks; Small Loans Act; Exemptions; Determination of Exemption The North Carolina Small Loans Act exempts certain lending agencies from the provisions of the act. The duty rests upon the lender claiming exemption to establish his right to exemption. On this basis, when the Com-missioner of Banks has grounds for believing a particular lender claiming exemptions is not entitled to exemption, the Commissioner should call on that lender to furnish proof of his right to exemption. In most instances the best proof would be the books and records of the lending agency. If such lender refuses to permit Commissioner's agents to examine his books and records, Commissioner should then call upon such lender to complj^ with the Small Loans Act in the same manner as if he were not exempt and proceed on the same basis as Commissioner would in the case of any noncomplying lender subject to the provisions of the Act. 12 January 1959 Banks; Small Loans Act; Exemptions; Motor Vehicle Loan; Additional Collateral A lending agency which requires and accepts collateral in addition to motor vehicles on loans is subject to the provisions of the North Carolina Small Loans Act and does not have the exempt status of the lending agency which is engaged solely in the business of making loans of fifty dollars or more secured by motor vehicles. 20 April 1959 Banks; Teller's Window; Right to Receia^ Loan Payments Repayments of loans may be accepted by a bank at a teller's window located at a different place than the bank itself provided the establishment of such teller's window has been properly authorized. 16 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. BLUE LAWS 16 March 1959 Blue Laws; Sunday Blue Laws North Carolina does not have any statewide Sunday closing or "blue" laws, but many municipalities have adopted a variety of Sunday closing ordinances. BOATING 19 November 1959 Boating; Fees; Authority of Dept. of Conservation & Development TO Collect The Department of Conservation and Development has the authority to collect reasonable fees for the operation of boats on the waters of State-owned lakes. BUILDING CODES 3 December 1959 Building Codes; Proposed Swimming Pool Code; Authority of Building Code Council Under existing law, the State Building Code Council does not have authority to adopt a building code covering swimming pools. CEMETERIES 10 December 1958 Cemeteries; Authority of Burial Association Commissioner over Public Cemeteries; Perpetual Care; Private Land-owners Selling Grave Spaces By Giving Deed Article 7 of Chapter 65 of the General Statutes, as amended, regulating public cemeteries which advertise or have connection therewith a plan of perpetual care, does not apply to a land-owner who subdivides his land into 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 17 grave spaces and transfers these lots, or grave spaces, to purchasers by deed, it being understood that the land-owner w^ill not care for the grave spaces but that such duty of care and upkeep is upon the purchaser. 20 January 1960 Cemeteries; Expenditure of Administrator for Perpetual Care; Authorization An executor or administrator is without authority to expend funds for the perpetual care of a cemetery lot unless authorized to do so by the will of the testator or unless such expenditure is made for interment of the testator or intestate in a cemetery authorized by law to operate as a per-petual care cemetery or association. G. S. 28-120.1 CITIZENSHIP 14 September 1959 Citizenship; Loss upon Conviction of Felony; Effect of Plea of Nolo Contendere The plea of nolo contendere entered in a Federal case does not prevent such person from losing citizenship because loss of citizenship is an effect or consequence of the same criminal proceeding in which the plea was entered. CIVIL PROCEDURE 26 September 1958 Civil Procedure; Civil Action; Claim and Delivery; Jurisdiction When the sole or chief relief demanded is the recovery of personal prop-erty, the proper venue for a civil action is in the county where the property is situated, but it is possible for an ancillary remedy of claim and delivery to issue properly from the courts of a different county from that in which the property is situated. 28 June 1960 Civil Procedure; Claim and Delivery; Jurisdiction of Justice of the Peace; Concealed Property Upon compliance with the statutes with regard to jurisdiction and with regard to the authorities granted to the sheriff, a house wherein property is being concealed, providing the value of the property is not in excess of $50.00. 18 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. may be broken open and the sheriff of the county may obtain possession. Of course, the sheriff should use no more force than is reasonably necessary and should do no more damage to the property than is absolutely required by circumstances. 19 November 1959 Civil Procedure; Costs; Sheriff's Commissions Upon Execution In serving execution on a civil judgment, the sheriff should add his com-missions to the amount of the execution and not deduct them from the face amount of the execution. 1 March 1960 Civil Procedure; Courts; Service of Summons; Leaving Summons with Defendant's Wife Insufficient Personal service in a civil action cannot be obtained by delivering the summons to the defendant's wife. The statute contemplates delivery to the defendant in person. 1 June 1959 i Civil Procedure; Enforcement of Undertaking to Stay Execution Where Appeal from Justice of Peace is Abandoned and Principal Judgment Debtor is Bankrupt Wherein undertaking to stay execution has been given on appeal from a justice of the peace, and the appeal is abandoned, and the principal judg-ment debtor is thereafter declared to be in bankruptcy, sureties on the undertaking would continue to be liable on their bond inasmuch as such liability has become fixed at the time the appeal was abandoned and prior to the time when the principal judgment debtor became bankrupt. 24 July 1958 Civil Procedure; Inquisition of Lunacy Suit In Forma Pauperis A special proceeding or a petition for the inquisition of lunacy is one of those proceedings in which the petitioner may file his or her petition in forma pauperis. 18 January 1960 Civil Procedure; Motions; Notice; Motions to Make New Parties Notice of a motion to make an additional party defendant in civil actions under G. S. 1-240 should be given to the plaintiff. 35 J BIENNIAL REPORT OF THE ATTORNEY GENERAL 19 30 July 1958 Civil Procedure; Service of Process; Authority of Constable to Serve Process Directed to Sheriff Process vs^hich is directed to the sheriff only, and not to the "sheriff or other lawful officer" cannot be served by a constable. 8 July 1959 CrviL Procedure; Service of Summons G. S. 1-94 provides that the officer to whom a summons is addressed must note on it the date of its delivery to him and serve it by delivering a copy to each of the defendants. Service by delivering a copy to the husband or wife of the defendant is not sufficient. HARRINGTON v. RICE, 245 N. C. 640; FIRST NATIONAL BANK OF CHARLOTTE v. WILSON, 80 N. C. 200. An exception is made in the case of service of process in summary ejectment proceedings. G. S. 42-29 provides that service of such process may be made by leaving a copy at the defendant's usual or last place of residence, with some adult person, or, if the defendant has no usual place of residence in the county and cannot be found therein, the summons may be served by fixing a copy on some conspicuous part of the premises claimed. 30 May 1960 Civil Procedure; Sheriff's Fees in Suits Instituted in Forma Pauperis When a suit is instituted in forma pauperis, sheriff, whether within or without the county when properly directed, must serve subpoenas for wit-nesses without first obtaining his fees. COLLEGES 12 November 1958 Colleges; A & T College; Scholarships; Trustees Without Authority to Remit Tuition and Fees as Scholarship The President of A & T College in Greensboro cannot remit tuition and fees as scholarships, and the Board of Trustees cannot authorize the grant-ing of such awards. ----'•'-''- ' -''- .-'' ''-- '''-'--' 24 November 1958 Colleges; AppROPKiATiaNS . for Capital Improvements, State Institu-tions; Agencies AND Departments ; Plan of Organization and Operation for Community Colleges, Construction of Statutes Passed at the Same 20 biennial report of the attorney general [vol. Session of the General Assembly and in pari materia; Objects for WHICH Funds Granted in Aid to Community Colleges may be Expended There is no conflict between Sec. 5 of Chapter 1341 of the Session Laws of 1957, which appropriates funds for the construction and equipping of new classroom buildings, and subsection (b) of Sec. 7 of Chapter 1098 of the Session Laws of 1957, which gives in detail the specific kinds of buildings for which the appropriations may be used when granted in aid of community col-leges; statutes are to be construed in pari materia when they relate to the same subject matter, even though they are different statutes and ratified on different days of the same session of the General Assembly. The actual intent, history and spirit of the two acts passed at the same session should be used in giving effect to the proper interpretation; when the two acts are harmonized and construed together, as they should be, there are no conflicts in these two acts. COMMERCIAL FISHERIES 23 January 1959 Commercial Fisheries; Oysters; Privately-Owned Beds; State Grants An oyster bed privately owned by virtue of a State grant is subject to reasonable rules and regulations promulgated by the State Fisheries Com-mission. A rule or regulation pertaining to the dredging of oysters in the New River would apply to privately-owned beds as well as any other part of the river bed. CONSTITUTION 4 February 1959 Constitution; Amendment of Constitution; Submission of Revised Con-stitution in its Entirety; Time of Election Thereon The General Assembly may submit to a vote of the people a complete re-vised Constitution in lieu of separate amendments to the existing Constitu-tion. The General Assembly may make provision for submitting proposed constitutional amendments to the voters of the whole state at a general election other than the regular biennial election for county officals but in any event such question must be submitted at "the next general election." 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 21 CONTRACTORS 29 July 1958 contractors; electrical contractors; exemptions; person doing Work on Own Property A person who does electrical work only on his own property, whether rental or otherwise, is not required to be licensed under the State law relating to the licensing of electrical contractors. CONTRACTS 23 December 1958 Contracts; Public Bidding; Effect of Fair Trade Act The provisions of the Fair Trade Act do not apply to the State or politi-cal subdivisions of the State in making purchases. CORPORATIONS 10 July 1959 Corporations; Articles of Incorporation; Duty of Secretary of State The Secretary of State must determine whether the articles of incorpora-tion are regular in content and in compliance with the law. In those instances where the articles do not contain the proper addresses of the registered office, the incorporators or directors and it is obvious that this requirement could have been complied with, the Secretary would be justified in refusing to certify the articles. Those offering the articles should be notified of the irregularity and given the opportunity to furnish the omission or otherwise explain the same. 12 February 1960 Corporations; Capital Stock; Public Policy While a corporate charter may grant preference as between classes of stock as to payment of dividends or distribution on liquidation, as a matter of public policy, the charter may not entirely deny the right to dividends and to distribution on liquidation. 22 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL, 6 January 1959 Corporations; Dissolution; Failure to Commence Business A corporation which has not commenced business or received payment on any subscriptions to its shares must comply with the provisions of G. S. 55-119 relative to publication of notice of dissolution. 12 January 1959 Corporations; Electric Membership Corporations; Foreign Domesti-cated Corporations; Dissolution; Distribution of Assets The provisions of G. S. 117-24, stating that, upon dissolution of an electric membership corporation and after payment of all its debts, remain-ing assets become the property of the State, apply to the dissolution of foreign electric membership corporations domesticated in this State having assets in this State. 13 January 1959 Corporations, Foreign; Nonprofit Corporation; Domestication; Exemptions A foreign nonprofit corporation is not required to domesticate in this State when its sole activity in this State consists of employing one inspec-tor to inspect for safety purposes the loading of dangerous cargoes when all cargoes inspected are loaded for the purpose of shipment in interstate or foreign commerce. 14 May 1959 Corporations; Nonprofit Corporations; Domestication; Conducting Affairs A foreign nonprofit corporation may lease lands in North Carolina with-out being required to domesticate in this State. If the corporation does more than execute the lease, however, it would be required to domesticate. COUNTIES 10 July 1958 Counties; ABC Boards; ABC Profits; Hospitals; Nonprofit Hospitals; Use of ABC Funds In the absence of a local statute providing otherwise, a board of county commissioners may expend county ABC store profits to make permanent improvements in connection with a nonprofit charitable hospital operated in the county. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 23 3 June 1960 Counties; Appropriation of Funds from Tax Sources for National Guard Armory Construction Counties of the State are authorized to appropriate funds from tax sources for National Guard Armory construction. 5 December 1958 Counties; Capital Reserve Fund Both the county and municipal Capital Reserve Acts of 1943 expired by limitation on July 10, 1947. G. S. 153-142.21 and G. S. 160-444. Chapter 863, Session Laws of 1957, now codified as Article 35, Chapter 160 of the General Statutes, authorizes the creation of a Capital Reserve Fund by municipalities for certain specific purposes. There is no similar act for counties. 8 February 1960 Counties; Construction op Water and Sewer Lines; Part of Water and Sewer Line Running Through Another County; Municipal Corporations; Construction of Fire Protection Facility Outside of City Limits A county has the right to spend surplus or nontax funds to extend both water and sewer lines from the corporate limits of a municipality to a community or industry located in the county. A municipality has a right within the permissible distances authorized by G. S. 160-238 to provide, install and maintain water mains, pipes, hydrants, buildings and equipment for the purpose of fire protection for the sole use of a community or industry. 10 August 1959 Counties; County Agents; Expenses of Attending Conventions The expenditure of funds for county farm and home demonstration agents' activities is for a public purpose and attendance at conventions of such agents is sufficiently related to the work of such office as also to be regarded as for a public purpose. Therefore, nontax funds could properly be used to defray reasonable expenses of such officials in attending State or National conventions. 29 April 1959 Counties; County Boundaries; How Determined The procedure for settling the question of disputed county boundaries is set out in Section 153-11 of the General Statutes. 24 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 14 July 1958 Counties; County Depositories; Ineligibility of Building and Loan Association Under the provisions of Section 153-135 of the General Statutes, a build-ing and loan association may not be designated as an official depository for daily deposits of county funds. 24 July 1958 Counties; County Fire Districts; Purchase of Radio Equipment When a fire district has been properly organized in a county, radio equipment may be purchased in the same manner as other equipment, if, under all the circumstances, it is deemed reasonably necessary in operating an efficient fire department. 13 July 1959 Counties; County Superintendent op Public Welfare; Merit System Law; Salary of County Superintendent After a county welfare board has fixed the salary of the county super-intendent of public welfare in accordance with the Merit System compen-sation plan, a levy of taxes for the special purpose of providing funds to pay such salary is authorized and directed by statute. 25 April 1960 Counties; County Surveyors; Appointed by Board op County Commissioners Except for a small number of counties listed in G. S. 154-3, a county surveyor is not elected in each county. Instead, the Board of County Com-missioners has discretionary authority to appoint a surveyor. 6 April 1959 Counties; Drainage Districts; Loan to District Authorized; Gift to District not Authorized There is no general authority for a Board of County Commissioners to make a gift of funds to be used in the course of creating or establishing a drainage district. 7 January 1960 Counties; Electrical Ordinances; County Electrical Inspectors A county does not have legislative powers comparable to those bestowed upon cities and towns, and it is doubtful that a county, under authority 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 25 of G. S. 143-138 (e), may adopt piecemeal building regulations (i.e., elec-trical code) which would have the effect of superseding or suspending the operation of the North Carolina State Building Code in that "particular political subdivision", and such ordinances, if enacted, would be ineffective as no penalty for violation of same is provided by a statute similar to G. S. 14-4 declaring it to be a misdemeanor and prescribing punishment for violation of an ordinance of a city or town. 14 May 1959 Counties; Funds Expended for Care of Indigents; Reimbursement TO the County Poor Fund Any money received by a county as reimbursement for monies expended in the care of indigent persons should be returned to the county's poor fund, the source of the original expenditure. 26 February 1959 Counties; Municipalities; Hospital Aid; Loans and Gifts to and From Counties and Cities G. S. 131-126.26 authorizes a county to lend money to a city for hospital purposes, however, this statutory right to lend and borrow is subject to certain constitutional limitations. The county could not lend ad valorem tax revenues except to the extent that they represented available proceeds from a duly authorized tax levy for general hospital purposes. The city or town, in turn, could borrow only within the limits of the constitutional provision which authorizes borrowing without a vote of the people only to the extent of two-thirds of the amount by which its outstanding indebt-edness was reduced the last preceding fiscal year. 13 May 1959 Counties; Municipalities; Local Development; Industrial Development; Expenditure of Funds A county or municipality is without authority to expend funds to attract industry unless it acts pursuant to Chapter 158 of the General Statutes or unless it has local enabling legislation. 18 May 1959 Counties; Municipalities; Municipal Building; Municipal Fire and Jail Departments; Right of County to assist Municipality There is no general statutory authority which would permit a county to assist a city in constructing jail facilities. 26 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 16 December 1959 Counties; Municipalities; Sewer and Water Lines; Construction of V/ATER AND SEWER LINES OUTSIDE CORPORATE LIMITS; EXTENSION OF Sewer and Water Lines G. S. 153-9 (46) authorizes a county to construct and operate water and sewer systems. G. S. 160-255 and G. S. 160-256 authorize municipalities, within limits, to furnish water and sewer service outside the city limits. Nontax funds and surplus funds may be used for these purposes. There is no legal objection to a county and city doing jointly what each is authorized to do separately with respect to water and sewer service outside city limits. 2 May 1960 Counties; Public Administrator; Number of Only one public administrator may be appointed under G. S. 28-17 for each county. 30 June 1960 Counties; Purchase of Equipment G. S. 153-2.1 authorizes continuing contracts but this does not include installment contracts. 28 March 1960 Counties; Sale of Property By Board of Education County board of education may not transfer to the North Carolina De-partment of Motor Vehicles a parcel of land without specific legislative authority or complying with G. S. 115-126. 21 March 1960 Counties; Sale of Surplus Real Property at Private Sale; Authority of Rowan County to Warrant Conveyances Subject to the limitations stated in Vaughn v. Commissioners, 118 N. C. 636 and Southport v. Stayiley, 125 N. C. i6i, it would appear that the county commissioners of Rowan County are empowered to sell property described in deed submitted to an individual or corporation upon such consideration as may in their opinion be in the best interest of the inhabitants of the county and at public or private sale. Insofar as the covenants contained in the deed are concerned. Rowan County is empowered by G. S. 160-61.1 to execute a warranty deed. 17 August 1959 Counties; Sewer Systems; Extension of Municipal Line Outside Limits of Municipality Under certain circumstances a county has authority to construct sewer lines outside the limits of municipalities pursuant to the authority granted in G. S. 153-9 (46) or G. S. 153-11.2. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 27 7 May 1959 Counties; Special Levy; Levy Discontinued; Use of Surplus When the purpose for which a tax levy has been made have been ful-filled and the levy has been discontinued, the remaining surplus from the levy may be placed in the county general fund and expended for any county public purpose. 19 January 1960 Counties; Vacancies on County Board of Elections; How Filled Whenever a vacancy occurs in the membership of a county board of elections, the State chairman of the political party of the vacated member shall have the right to recommend tw^o electors for such office, and it shall be the duty of the State Board of Elections or the chairman of the State Board of Elections to fill the vacancy from the names thus recommended. 15 February 1960 Counties; Waiver of Governmental Immunity; Tort Liability; Extent OF Waiver by Purchaser of Liability Insurance Under the provisions of G. S. 153-9, Subsection 44, a county's waiver of its governmental immunity is limited to the liability insurance coverage purchased, and the excess or other liability beyond limits is not waived and the county's immunity, if any, is not disturbed as to the excess. COUNTY COMMISSIONERS 31 December 1959 County Commissioners; Electrical Ordinances; County Electrical Inspectors County commissioners have the discretionary power under G. S. 160-122 to appoint electrical inspectors, but they do not have authority to enact ordinances creating standards to control electrical installations in buildings located in the county. Under G. S. 143-138 (b), the governing body of the county is authorized to adopt a resolution making the provisions of the North Carolina State Building Code applicable to buildings located in the county, which are otherwise exempt from the Building Code. 5 February 1960 County Commissioners; Employment of Counsel A county has authority to employ such legal counsel as the Board of Commissioners deems reasonably necessary and desirable for representing the Board in official county litigation. 28 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. 13 August 1959 County Commissioners; Expenditure of County Funds Outside of County for College Sewer Lines The Board of Commissioners of a county has no authority to expend funds, even funds derived from sources other than tax levies, for a college sewer line located outside the boundaries of the county. 17 June 1960 County Commissioners; Expenditures; Expenses of Officials Attending Conferences and Conventions The governing board of a municipality or county may pay the expenses of its officials in attending conventions and conferences. 9 October 1958 County Commissioners; Expenditure of Public Funds; Public Purpose; Building Gasoline Service Station for Rental Purposes A county does not have legal authority to expend public funds to con-struct a gasoline filling station on a vacant lot which the county owns in order to increase its rental value. 16 July 1958 County Commissioners ; Fire Districts ; Tax Levy on Petition WITHOUT Vote of People When a statute imposes a mandatory duty upon an official or an official board, the official or the board should perform such mandatory duty unless and until the statute in question is declared invalid by a court of competent jurisdiction. 9 October 1958 County Commissioners; Local Development; Donations to Encourage Location of Industry In the absence of local enabling legislation, a county can expend funds to attract industry only in accordance with the provisions of Chapter 158 of the General Statutes entitled "LOCAL DEVELOPMENT." 22 June 1959 County Commissioners; Poor Fund; County Department of Public Welfare; County Appropriations Through Poor Fund for School Lunches; Indigent Pupils County Commissioners are authorized to appropriate public funds for the purpose of providing assistance to indigent children for a school lunch program and to administer and to supervise the plan through county de-partments of public welfare. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 29 6 October 1959 County Commissioners; Powers; Construction of Water and Sewer Lines by County Authorities; Statutory Construction of G. S. 153-9(46) AND G. S. 153-11.2 G. S. 153-9(46) clearly contemplates and authorizes the operation of water and sewer systems constructed under its provisions in whatever man-ner the responsible county commissioners find most business-like, expedient, and satisfactory. This broad grant of discretion m operation or disposal of the systems would include an area, whereby the systems would be leased to a municipal corporation to which they are connected, in consideration of an annual rental, although nominal, and an agreement by the municipal cor-poration to maintain and operate the lines at no expense to the county. 29 January 1960 County Commissioners; Right of Chairman to Vote In the absence of a local law providing otherwise, the chairman of the Board of County Commissioners has the same right to vote at meetings of the Board as any other member of the Board. 26 June 1959 County Commissioners; Sheriff; purchase of Automobile for Sheriff's Department A county may not expend funds to purchase an automobile for the Sheriff's department or to purchase uniforms for the sheriff and his deputies without statutory authorization. 28 January 1960 County Commissioners; Zoning Regulations; No Penalties or Criminal Punishment Provided Under Chapter 1006, 1959 Session Laws, boards of county commissioners are given power to enact county zoning regulations, but they do not have authority to impose penalties or prescribe punishment for the violation of such zoning regulations, and it is not a violation of State law to violate a county zoning regulation adopted under the authority of the foregoing Act. 30 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. COURTS 1 October 1958 Courts; Appeal to Superior Court From Recorder's Court When Plea OF Guilty is Entered G. S. 15-177.1 provides that in all cases of appeal to the Superior Court in a criminal action from a justice of the peace or other inferior court, the defendant shall be entitled to a trial de novo without prejudice from the former proceedings of the court below regardless of the plea entered or the judgment pronounced thereon. In STATE v CANADY, 246 NC 613 it is held that where suspended sen-tence is entered and the defendant complies with certain of the terms of suspension, he waives his right to appeal. The distinction between the foregoing situations seems to be that if the defendant complies with some of the terms of the judgment, he thereby loses his right to appeal but merely by pleading guilty in an inferior court the defendant does not lose his right of appeal guaranteed to him by G. S. 15-177.1. 3 February 1959 Courts; Clerks of Court; Entry of Judgment in Minute Docket; Cross Reference to Judgment Docket Not Sufficient Since the Minute Docket is the only complete record of proceedings had in court during term, any judgments entered should be set out therein verbatim and a mere cross reference to the summarized judgment as the same may appear in the Judgment Docket does not constitute compliance with the provisions of G. S. 2-42(8). 4 March 1959 Courts; Criminal Procedure; Appeals from Justices of the Peace in a County Having a County Recorder's Court It is the duty of the clerk, under G. S. 7-243, to docket appeals from a justice of the peace in criminal cases in the recorders court. While G. S. 7--243 appears to be in conflict with Articles IV, § 27 of the North Carolina Constitution which gives a right of appeal from a justice of the peace to the Superior Court, it is "the law" unless repealed by the Legislature or declared unconstitutional. 19 August 1959 Courts; Domestic Relations; Appeal to the Superior Court in Pro-ceedings Involving Delinquency, Neglect or Dependency of Children G. S. 110-40 and not G. S. 7-107 is applicable to an appeal from a Domestic Relations Court to the Superior Court in the matter involving delinquency, neglect or dependency of a child coming within the jurisdiction 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 31 of a Juvenile Court. G. S. 7-107 applies only to appeals in criminal cases, bastardy cases and cases involving the custody of juveniles under the pro-visions of G. S. 7-103 (c). Juvenile and Domestic "Relations Courts do not deal vs^ith young offenders as criminals but rather as wards of the state. 25 March 1959 Courts; Domestic Relations Courts; Countywide court; Authority of County Commissioners to Establish A county-wide Domestic Relations Court may be established under Article 13 of Chapter 7 of the General Statutes by proper resolution by the County Commissioners, and the joinder of governing bodies of included incorporated municipalities is not required. 29 December 1959 Courts; Domestic Relations Courts; Disposition of Child Born of Female Prisoner; Responsibility of the County Domestic Relations Court G. S. 148-47 does not make it mandatory for the female prisoner and her child to appear in the Juvenile or Domestic Relations Court for a formal hearing in order for the court to enter a proper custody order. Under this statute, a female prisoner does, however, have the legal right to appear in court for a hearing regarding the custody of her child and after serving the prisoner with proper notice the court may direct that the female pris-oner and her child be brought into court for a formal hearing. No necessity arises for a proceeding in the Juvenile or Domestic Relations Court in cases where the female prisoner releases her child for adoption and the Superintendent of Public Welfare would be the proper person to determine if a relative is a suitable person with whom such child can be placed. 14 August 1959 Courts; Justices of the Peace; Bonds; Bail Bonds; Criminal Pro-cedure; No Right of JP to Require Cash Bond In connection with bail bonds a justice of the peace has authority to fix the amount of the bond but he is without authority to require the defendant to furnish a cash bond. Whether the bond shall be a cash bond or not rests with the officer taking the bond. 21 January 1959 Courts; Justices of the Peace; Bond Required of Justice of the Peace; Personal or Corporate With respect to those counties wherein justices of the peace must furnish bond pursuant to Chapter 1380 of the Session Laws of .1957, the statute provides that such bond shall be either corporate or personal, with good and sufficient surety, approved by the Clerk of the Superior Court. 32 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 15 August 1958 Courts; Juvenile Court; Abandonment Proceeding; Service by Publication In a proceeding before the Clerk of Superior Court, sitting as a juvenile court to determine abandonment of child by a parent within the meaning of Chapter 48 of the General Statutes relating to adoptions, service by publication may be had under the authority of G. S. 110-28, a part of the Juvenile Court Act, and the latter publication statute may be relied upon even though the provisions of G. S. 1-98.1 and 1-98.2 do not include service by publication in such matters in the juvenile court. 22 April 1960 Courts ; Municipal-County Recorder's Court ; County to Pay Fees Upon Acquittal Under the general law, G. S. 6-36, the county must pay the clerks, sheriffs, etc., one-half their lawful fees when the defendant is acquitted or convicted and unable to pay the costs or a nolle prosequi is entered, or judgment ar-rested. Where there is no provision in the special legislation establishing a county recorder's court, providing for the payment of fees when the defen-dant is acquitted, etc., the general law prevails and the county must comply with G. S. 6-36 and pay one-half the fees as therein provided. As for G. S. 6-64, the County is not liable for costs when the action in which a justice of the peace has final jurisdiction is commenced or tried in a court of a justice of the peace, mayor or in a county recorder's court. 22 April 1960 Courts; Municipal-County Recorder's Court; Deputy and Assistant Clerks Issuing Warrants An assistant clerk of a Municipal-County Recorder's Court, established tmder G. S. 7-240 and properly elected as provided for under G. S. 7-200.1, may issue warrants as provided in G. S. 7-198 and G. S. 7-200.1, 8 February 1960 Courts; Recorder's Courts; Establishment of Municipal Recorder's Court The procedure followed in establishing a Recorder's Court pursuant to Article 24 of Chapter 7 of the General Statutes is for the town governing body to adopt an appropriate resolution or ordinance declaring the estab-lishment of the court. 23 January 1959 Courts; Superior Courts; Procedure; Appeal from Demurrer Supreme Court Rule of Practice 4(a) provides that the Supreme Court will not entertain an appeal from an order overruling a demurrer except 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 33 when the demurrer is interposed as a matter of right for misjoinder of parties and causes of action. Petition for writ of certiorari is allowed when such order overruling a demurrer will prejudicially affect a substantive right. CREDIT UNIONS 21 September 1959 Credit Unions; Authority of Board of Directors of State Employees' Credit Union to do or not to do the Following things: (a) to Hire AND Fire the Treasurer; (b) to Hire and Fire the Regular Employees OF THE Credit Union; (c) to Fix the Salary of the Treasurer; (d) to Fix the Salary of the Other Employees of the Credit Union; (e) to Use the Funds of the Credit Union to Pay the Cost of a Detailed Audit of the Books and Records of the Credit Union; (f) to Control AND Designate the Custodian and Place of Custody of the Records of THE Minutes of the Board of Directors of the Credit Union The Board of Directors of a Credit Union has the power to elect or employ a Treasurer and to make him the General Manager of the Credit Union; the Board of Directors of a Credit Union does not have the authority to discharge the Treasurer of the Credit Union who is an officer and is elected for a fixed term, but the Supervisory Committee by unanimous vote can suspend the Treasurer of the Credit Union and call a meeting of the members to act upon the suspension, and the members can either reinstate the Treasurer or discharge him according to the provisions of the Bylaws of the Credit Union; the members of the State Employees' Credit Union under its Bylaws in a special meeting and by a 2/3's vote can discharge the Treasurer of such Credit Union; the primary responsibility of hiring and discharging the regular employees of a Credit Union rests upon the Treasurer, who is the General Manager, but the Board of Directors can intervene and hire and discharge regular employees if it so desires; pur-suant to a Bylaw of the State Employees' Credit Union authority has been vested in the Board of Directors to fix the salary of the Treasurer; the Board of Directors of the State Employees' Credit Union has the power to fix the salaries of the regular employees of the Credit Union ; the Super-visory Committee can order an independent and outside audit of the financial record and affairs of the Credit Union, and it would be the duty of the Board of Directors to pay the costs of such audit from uncommitted funds of the Credit Union; the Board of Directors of a Credit Union has the power to designate the custody and the custodian of the records of the minutes of the Board of Directors of the Credit Union. 34 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. CRIMINAL LAW 26 January 1959 Criminal Law; Abduction or elopement with virtuous married woman; Jurisdiction in probable cause hearing; Proper \'enue in probable cause hearing The felony of an abduction or elopement with a virtuous married woman defined in G. S. 14-43, which may involve as essential elements the unlawful scheming of the accused to achieve the voluntary desertion by the wife of her husband for the purpose of going away and cohabiting with the accused, by its very nature may involve action across artificial govern-mental lines of counties or states. The county of origin may be proper venue for the criminal proceeding. 22 June 1959 Criminal Law; Adultery; Wife Signing Warrant Charging Husband's Paramour None of the provisions of G. S. 8-57 would preclude or bar a wife from procuring the issuance of a warrant charging her husband's paramour with fornication and adultery. 21 December 1959 Criminal Law; Arrest; Jurisdiction of City Policeman to Arrest Outside Corporate Limits of a Municipality A city policeman may arrest a person only within the corporate limits of the municipality which he serves. A city policeman could not, in close or hot pursuit, follow and arrest an offender outside the corporate limits of the municipality which he serves. 28 August 1959 Criminal Law; Attempted Suicide An attempt to commit suicide is a common-law misdemeanor in this State. 9 April 1959 Criminal Law; Breaking and Entering—Bear "Cage" Game reduced to possession is property within the meaning of G. S. 14-54. Whether or not a "cage" comes within said statute is a matter of fact. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 35 29 April 1959 Criminal Law; Breaking, Entering and Larceny; Vending Machines The statute against breaking and entering, G. S. 14-54, applies only to breaking and entering the buildings set out in the statute. It would not apply to breaking and entering a vending machine located outside a building. 19 August 1958 Criminal Law; Burglary; Breaking into or Entering Houses, Shops, Warehouses and Other Buildings otherwise than Burglariously; Larceny of Property of the Value of not more than $100.00; G. S. 14-54 AND G. S. 14-72 TO BE Construed together G. S. 14-54, dealing with breaking into or entering certain types of houses or buildings otherwise than burglariously, is to be construed with G. S. 14-72, which divides larceny into two degrees according to whether the property is of the value of not more than $100.00; where a building is broken into or entered and property less than $100.00 in value is stolen or taken away, the view that the defendant might be guilty only of a misde-meanor is required to be submitted to the jury; however, it is possible to convict the defendant of a felony even though the property taken is less than $100.00 in value if the facts and circumstances show a felonious intent irrespective of the value of the property taken. 15 July 1959 Criminal Law; Carrying Weapons Concealed Under the laws of this State, a person may not carry a pistol concealed about his person. Carrying a pistol in the glove compartment of an auto-mobile would be violative of the laws of this State. If the pistol is carried openly and in plain view of any person who might look into the auto-mobile, there would be no violation of the laws of this State. There is no provision under the laws of this State for a person to secure a permit to carry a pistol concealed about his person. 28 August 1959 Criminal Law; Concealed Weapons; Carrying in Automobile G. S. 14-269 Having rifles, pistols or other deadly weapons located in the trunk of a car out of reach of any person in the car probably would not be a violation of G. S. 14-269, which makes it a misdemeanor for anyone, except when on his own premises, to carry any deadly weapon concealed about his person. 36 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 28 May 1959 Criminal Law; Criminal Procedure; Double Jeopardy; Conviction of Assault and Battery; Subsequent Death of Victim; Prosecution for Homicide Proper When a person is convicted of assault for shooting a person and the per-son thereafter dies w^ithin one year after the shooting occurred, prosecution for murder or manslaughter is not barred by the assault conviction. 27 April 1959 Criminal Law; Criminal Procedure; Physical Evidence of Crime; Custody of Evidence If there is any reason at all to suppose that a gunshot wound resulted from the commission of a criminal offense, it is a well settled principle of law that the bullet should be turned over to the appropriate law enforc-ing officers. "Property held as evidence in a criminal case may not be taken from the custody of the court without its consent nor as long as it may be needed as evidence. . . ." 26 August 1959 Criminal Law ; Evidence ; Abandonment and Nonsupport ; Investigation BY Order of the Judge There is no authority for the judge of a recorder's court to institute an investigation, upon a continuance of the case, for the purpose of secur-ing additional evidence regarding the possible commission by the defendant of the offense of wilfully abandoning and failing to provide adequate support for his wife and minor children. 16 March 1960 Criminal Law ; Evidence ; Admission Uncorroborated by Other Evidence When an operator of a motor vehicle is charged with operating under the influence of intoxicating liquor or narcotic drugs in violation of G. S. 20-138 and the only evidence of driving the motor vehicle is the statement of the defendant, such evidence must be further corroborated by evidence relating to and tending to establish the crime. 23 December 1959 Criminal Law; Evidence; Motor Vehicles; Official Driving Record If one of the elements of the motor vehicle law violation is the status of the defendant's driver's license, to wit: revoked or suspended, the introduc-tion into evidence of the official records of the status of his driver's license may be limited, if so requested, to the certification and seal, plus the fact that his license was in a state of revocation or suspension. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 37 22 June 1959 Criminal Law; Fishing; County Residence Under the provisions of G. S. 113-146 the right of a person to fish with natural bait in a county without having a county license is based upon living in such county for a period of six months immediately preceding the time of fishing. If such residence was interrupted by living somewhere else for two months, such person would not be entitled to fish without a license. 24 June 1959 Criminal Law; Fortune Telling; Praying With Others One who prays with her clients relative to their present problems and burdens, whether it be prayers for healing or for relief of other problems is not guilty of violating G. S. 14-401.5 which provides in part as follows: "It shall be unlawful for any person to practice the arts of phrenology, palmistry, clairvoyance, fortune telling and other crafts of a similar kind in the counties named herein." 7 August 1958 Criminal Law; Motor Vehicles; Former Jeopardy Trial of a defendant on a charge of driving a motor vehicle upon the highways of the State while his operator's or chauffeur's license is sus-pended or revoked does not place such defendant in double jeopardy where the defendant has already entered a plea of guilty in a former trial of operating a motor vehicle on the highways of the State on the same occasion without first being licensed as a chauffeur or operator, because the two charges are not the same, in fact and in law. 12 May 1960 Criminal Law; Motor Vehicles; Operating Motor Vehicle While License Suspended or Revoked; Elements of the Offense In order to warrant conviction of criminal offense of operating a motor vehicle while license suspended or revoked under the provisions of G. S. 20-28 (a), all the essential elements of the crime must be proved by com-petent evidence and the burden is on the State to establish the defendant's guilt beyond a reasonable doubt. Under the provisions of G. S. 20-28 (a) the essential elements of operating a motor vehicle while license is suspended or revoked are: (1) Operation of a motor vehicle after license suspended or revoked other than permanently; (2) Upon the highways of the State; (3) While such license is still suspended or revoked. 38 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 4 September 1959 Criminal Law; Private Use of Publicly-owned Vehicle; Parking Vehicles at Home Overnight; G. S. 14-247 and G. S. 14-252 School officials who drive school-owned automobiles to and from their homes for school board purposes only and not for any private purpose would not be guilty of violating G. S. 14-247 and G. S. 14-252 prohibiting any public employee from using publicly-owned vehicles for a private purpose. 16 October 1958 Criminal Law; Public Drunkenness; Local Laws Fixing Punishment Under G, S. 14-335, any person found drunk or intoxicated on the public highways of this State shall be guilty of a misdemeanor, and in Craven County shall be punished as set forth in Subsection 12 of said statute. 18 September 1959 Criminal Law; Punishment for assault when no deadly weapon is used but serious bodily damage done When a defendant is convicted of an assault resulting in serious bodily injury but without the use of a deadly weapon, the trial court is not limited in its punishment to a fine of $50.00 or imprisonment for thirty days. In-stead, the offense is a general misdemeanor. 19 November 1958 Criminal Law; Pyrotechnics; "Checker Balls" Pyrotechnics known as "checker balls" are not permitted to be sold, exhibited, or possessed in this State. 25 March 1960 Criminal Law; Pyrotechnics; Exhibition; Explosive Caps All forms of pyrotechnics are outlawed by a State-wide law in this State. There is a provision in this Act which permits the exhibition of pyrotechnics, under permit, when such pyrotechnics are exhibited by trained experts at public occasions such as fairs and the like. Explosive caps designed to be fired in toy cap pistols may be legally sold and possessed in certain counties of the State. 17 November 1958 Criminal Law; Pyrotechnics; Sparklers Pyrotechnics knows as "sparklers" are not permitted to be sold, exhibited, or possessed in this State. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 39 29 August 1958 Criminal Law; Rape; Statutes Relating to Deaf, Dumb and Blind Females There are no statutes relating to rape or sexual offenses which take any special account of a woman's condition with respect to feeblemindedness, blindness, or deafness. 14 July 1958 Criminal Law; Refusal of Customer to Pay Taxi Fares There is no general law regulating the payment of taxi fares. This is governed by municipal ordinances. 22 December 1958 Criminal Law; Sale of Bay rum G. S. 14-364.1 makes it unlawful to sell bay rum in this State except when sale is made to a pharmacy or drug store or when sale is made pur-suant to a physician's prescription or when sale is made to a licensed barber for use in performing barber shop services and not for resale. A number of counties are exempted from this section. 26 August 1959 Criminal Law; Sentence Suspended on Payment of Fine and Costs; Appeal A defendant has no right of appeal from a criminal conviction after complying with the judgment of the court even though notice of appeal is given before time for giving such notice has expired. State v. Canaday, 2Jt6 N. C. 613. 27 May 1959 Criminal Law ; Trespass Any person who goes onto property in possession of another and who remains after being asked to leave becomes a trespasser and is subject to prosecution under G. S. 14-134, nothing else appearing. 9 October 1959 Criminal Law; Warrants Issued For Misdemeanors Over Two Years Old Warrants issued for the commission of misdemeanors which are over two years old are barred by the statute of limitations under G. S. 15-1, and, in the absence of a public local statute giving specific authority, a Justice of the Peace has no right to issue warrants or other criminal process returnable before a Recorder's' Court. 40 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. CRIMINAL PROCEDURE 14 June 1960 Criminal Procedure; Amendment of Warrant to Charge Second or Subsequent Offense of Drunken Driving in Recorder's Court Before Trial Criminal warrants may be amended at any time before verdict in the Recorder's Court to charge a second or successive offense upon conviction of which a different or more severe punishment may be imposed. This office is aware of no limitation on how far back the courts may look for previous offenses in order to sustain a conviction of a second or successive commis-sion of the offense charged. G. S. 7-149, Rule 12. 14 December 1959 Criminal Procedure; Appearances in Motor Vehicle Cases Through Agent or Attorney; Schools; Fines and Forfeitures; Point System A waiver of appearance and plea in absentia plus an authorization by the defendant for the clerk to apply "bail bond" to fine and cost is not a valid conviction or bond forfeiture. Waiver of appearance in misdemeanors can be done by the defendant with the consent of the court sitting as such, through his counsel but not through some other agent. 1 July 1958 Criminal Procedure; Bail; Liability of Appearance Bond When Continuance After Judgment is Allowed Where the court finds defendant guilty in a criminal case, enters judg-ment and allows defendant ten days within which to pay fine and costs or to appeal and defendant fails to appear within ten days and answer the judgment of the court or appeal, defendant and surety are liable on the appearance bond given in the case, because the defendant has departed the court without leave. 6 January 1960 Criminal Procedure; Deputy Sheriffs; Professional Bondsmen A deputy sheriff of any of the counties listed under G. S. 15-107 who also serves as a professional bondsman would be guilty of violating G. S. 15-107. 8 April 1960 Criminal Procedure; Indictment for Breach of the Peace The general rule of the court has been that in order to charge a person with a common law crime of breach of the peace, there must be profane and vulgar language used in a public place whereby the public at large is 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 41 offended and annoyed. An argument between husband and wife, in their own home, even thought it might disturb a neighbor, does not warrant an indictment of the common law crime of breach of the peace. 6 March 1959 Criminal Procedure; Indictment; Murder; Specification as to Date In an indictment charging murder where the deceased died several days after he was fatally shot, it is well to set out full facts as to the shooting on one date and the death on the svibsequent date. 21 August 1958 Criminal Procedure; Indictment; Not Necessary for Solicitor to Sign It is not necessary that a solicitor sign a bill of indictment. See STATE V. SHEMWELL, 180 N. C. 718, and STATE v. DOUGHTIE, 238 N. C. 228. 30 November 1959 Criminal Procedure; Judgments; Suspended Sentence Courts may order a suspended sentence into effect and have commitment issued only during their sessions and not in vacation. 11 January 1960 Criminal Procedure; Jury Fee in Recorder's Court A defendant who requests trial by jury in a Recorder's Court is not re-quired to deposit the jury fee before trial. G. S. 6-5 and G. S. 7-287. 11 April 1960 Criminal Procedure; Misdemeanors of Less Degree Reckless driving is not a lesser degree of the crime of driving drunk nor is running a stop sign or following too closely less degrees of the crime of reckless driving. A defendant may be indicted under separate counts for violation of the statutes prohibiting driving drunk, reckless driving, etc., if they grow out of the same transaction, and the defendant may be found guilty of any one or all of these acts. 22 December 1959 Criminal Procedure; Motor Vehicles; Plea of Double Jeopardy; No Operator's License and Driving After License Suspended A defendant's plea of guilty to the charge of operating a motor vehicle without an operator's license will not support a plea of double jeopardy to a charge of driving after license has been revoked, both offenses occur-ring at the same time, because the two charges are not the same in fact 42 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. and law. STATE v. MIDGETT, 214 N. C. 107; STATE v. LIPPARD, 223 N. C. 167. 4 March 1960 Criminal Procedure; Police Officers Giving Citations, Accepting Money, and Waiving Appearance of Defendant A citation by a police officer does not institute a criminal proceeding and the issuance of a w^arrant is necessary. The defendant in person or through his attorney with the consent of the court may waive appearance in a misdemeanor. Neither the clerk of the court nor a police officer can waive the appearance of a defendant and enter a plea of guilty and pay the fine out of the money deposited for bail. 8 April 1960 Criminal Procedure; Public Drunkenness on the Highways Under G. S. 14-335, disorderliness need not be proven in order to convict one of being intoxicated in an automobile on the public highway. 24 August 1959 Criminal Procedure; Recorder's Courts; Justices of the Peace; Amendment of Warrants While a justice of the peace has the power to amend a warrant, he may not amend a warrant to strike the offense charged in the warrant and to insert another offense. When a defendant is bound over to a county record-er's court on a warrant, the recorder may try the defendant on the war-rant under which he was bound over or upon a new warrant issued by him and charging the defendant with the offense which he appears to have committed. 14 January 1959 Criminal Procedure; Searches and Seizures; Search Warrants; Execution of Search Warrant A peace officer, who is armed with a valid search warrant, may use such force as is reasonably necessary to break open a door of the premises to be searched, if admittance to the premises is denied. No demand is neces-sary prior to a breaking in of the doors unless some person is found in charge of the building to be searched. In such cases officers should make known their identification and state their business, and if they are not admitted at once, they have a right to forcibly break down the doors and enter the premises. Peace officers armed with a search warrant should either read the warrant to the person at the home, or whoever is present and ap-pears to be in possession, if the person will permit them to do so, or he may state the substance of the warrant. We have no statute which requires an officer to exhibit or reveal the search warrant at the time of the 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 43 search. An officer armed with a search warrant does not have to run the risk of permitting a person to destroy illegal whiskey or other articles in order to read or state the warrant, and he may be governed by the cir-cumstances. 30 January 1959 Criminal Procedure; Search and Seizure; Search Warrants; John Doe Warrants Our search warrant statutes require that some person be named as being in possession of the premises and to be arrested or seized if found with the property or articles seized under the search warrant; if the identity of the person is unknown it is not sufficient to use the term "John Doe" alone but the term "John Doe" should be accompanied with a fairly accurate physical description of such person relating to color of hair, eyes, weight, etc., and relating also to the person's whereabouts, and, if seen with a motor vehicle, the type of motor vehicle; in other words, any useful and relevant points that relate to description. 24 November 1959 Criminal Procedure; Search and Seizure; Search Warrant; Omission OF Jurat in Complaint The failure of an officer taking the affidavit to sign the jurat does not prevent the affidavit from being a sufficient basis for the issuance of a search warrant. 14 July 1959 Criminal Law; Search and Seizure; Search Warrants; Necessity of Search Warrant The General Assembly has not enacted any law which would permit a search of a person's home without a search warrant. 15 September 1959 Criminal Procedure; Separate Warrants For Speeding and Reckless Driving Arising Out of Same Act Under G. S. 15-152 a person may be charged with reckless driving and also speeding in one warrant under separate counts, and if there are two warrants growing out of the same transaction, the court will order them to be consolidated. 14 March 1960 Criminal Procedure; Statute of Limitations; Judgments; Bond Forfeitures The ten-year statute of limitations is applicable to a judgment absolute on an appearance bond. 44 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL, 11 April 1960 Criminal Procedure; Transfer of Case from Recorder's Court to Superior Court upon Request for Jury Trial When under separate legislation the solicitor of a recorder's court asks for a jury trial the jurisdiction of the matter is transferred to the Superior Court and the solicitor of the Superior Court should send a bill to the grand jury. 30 March 1960 Criminal Procedure; Transfer of Criminal Case by Recorder's Court FOR Lack of Jurisdiction When a Judge of the Recorder's Court finds that he has no jurisdiction over the crime charged in the warrant, he may transfer it to the court having the correct jurisdiction. The defendant then may appear in the court which has jurisdiction and move in abatement or for discharge, and as was held in STATE v. TURNER, 170 N. C. 701, if the court allows the motion, the court will usually issue a correct warrant or have it legally served at once. 14 July 1958 Criminal Procedure; Use of State Commitment Form No. 830 for County Jail The use of a State Prison commitment form is acceptable for commit-ment to the County Jail, with appropriate deletions and insertions, since the judgment itself controls. 11 January 1960 Criminal Procedure ; Violation of City Ordinance With Regard to Stop Light Where there is no general State law and defendant is indicted under city stop light ordinance, prosecuting attorney must introduce ordinance to establish crime. G. S. 20-169 and G. S. 14-4. 4 December 1959 Criminal Procedure ; Warrants ; Several Counts in One Warrant Separate warrants for several offenses which may be properly joined growing out of the same transaction is proper, but the better practice would be to issue one warrant with several counts, if the counts can be properly joined. G. S. 15-152 provides for the consolidation of several warrants charging offenses that can be properly joined for the purpose of trial. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 45 DETECTIVES 22 July 1959 Detectives ; Private Detectives ; Carrying Weapons ; Running Collection Agency; License Tax In order to engage in the business of being a private detective in this State, a person must pay to the Commissioner of Revenue, Raleigh, North Carolina, an annual license tax in the amount of $25.00. Private detectives are not permitted to engage in business of a collection agency. Private detectives are not permitted to go armed in a body. There is no provision for a private detective to secure a State or county license to carry a pistol. A private detective does not have the power of arrest, nor may such private detective carry a w^eapon concealed about his person. Any city in vv^hich one engages in business as a detective could also require the payment of a city license tax. 30 July 1959 Detectives; Private Detectives; Security Patrol Privately-owned and operated security patrol organizations formed for the purpose of guarding and protecting individuals and property, and patrolling the streets and highways of the State, and utilized by private individuals for maintaining law and order, would be engaging in an unlaw-ful practice in performing such functions, and the individuals performing such services would perhaps be violating G. S. 14-276 and G. S. 14-277, relating to the impersonation of peace officer. DIVORCE Divorce; Mexican Divorce 4 February 1960 A divorce obtained in Mexico, if legally and properly obtained under the laws of that Country, would be recognized as a valid divorce in this State. DOGS 18 December 1959 Dogs; Dog Wardens; appointment, duties and authorities; rabies control officers Dog wardens should not be designated rabies inspectors, since their duties and responsibilities under statute are supplemental to each other. Dog wardens are given power of arrest only as to violations pertaining to ownership and control of dogs. His duties do not include those granted specifically to sheriffs by statute even though the latter also relate to control of dogs. 46 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. DOUBLE OFFICE HOLDING 3 June 1959 Double Office Holding; Chief of Fire Department; Member of Board OF Town Commissioners; Commissioner of Public Trust Contracting FOR his Own Benefit The position of chief of a fire department of a municipality and that of membership on the board of commissioners of a municipality are both con-sidered 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. If a member of the board of town commissioners accepted the position as chief of the fire department and received a salary therefor, he would be guilty of violating G. S. 14-234 which prohibits a commissioner of public trust contracting for his own benefit. 14 November 1958 Double Office Holding; Chief of Police and Chief of Fire Department The office of chief of police and that of chief of a municipal fire depart-ment 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. 27 April 1960 Double Office Holding; City Attorney and Other Public Office The position of city attorney is a position of employment rather than a public office. 22 June 1959 Double Office Holding; City Councilman and Member of the Veterans Commission The office of membership on the State Veterans Commission is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold this position and at the same time hold another public office. 10 February 1959 Double Office Holding; City Manager and Membership on State Stream Sanitation Committee The office of membership on the State Stream Sanitation Committee, created by G. S. 143-213 and following, is considered a public office within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 47 In the case of GRIMES v. HOLMES, 207 N. C. 293, the Supreme Court of this State held that the office of city manager of a municipal corporation is a public office within the meaning of the section of the Constitution referred to above. 15 June 1959 Double Office Holding; Commissioner of the Eastern Carolina Regional Housing Authority; Member of the Board OF Certified Public Accountant Examiners The position of commissioner of the Eastern Carolina Regional Hovising Authority and the position of member of the Board of Certified Public Accountant Examiners are both public offices within the meaning of the constitutional provision prohibiting double office holding. 21 March 1960 Double Office Holding; Coroner; District Pathologist; County Medical Examiner A district pathologist and county medical examiner are both considered public offices within the meaning of Article XIV, Section 7 of the North Carolina Constitution and a person may not hold both of these offices at the same time. The county coroner may, however, be assigned the func-tions of county medical examiner and district pathologist and shall perform these functions as a part of his duties as coroner and will not be con-sidered as occupying an additional office within the meaning of Article XIV, Section 7 of the North Carolina Constitution. G. S. 130-196, 130-197. 25 August 1958 Double Office Holding; County ABC Officer and Deputy Sheriff A county ABC officer and a deputy sheriff are both public officers within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may not hold these offices at the same time. 13 May 1959 Double Office Holding; County Accountant; Chairman of School District Committee; Member of County Soil Conservation District All three of the offices 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 any combination of these offices at the same time. 48 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 22 December 1958 Double Office Holding; County Attorney and Prosecuting Attorney OF a Recorder's Court The position of county attorney is a position of employment rather than a public office, and one person may hold this position and at the same time legally serve as prosecuting attorney of a county recorder's court. 4 January 1960 Double Office Holding; County Commissioner and Chief of Police of A Municipality The office of membership on a board of county commissioners and that of chief of police of a municipality are both considered public offices within the meaning of Article XIV, Section 7, of the Constitution, which pro-hibits double office holding, and one person may not hold both these offices at the same time. 21 April 1960 Double Office Holding; County Tax Supervisor; Member of City Council The office of county tax supervisor and that of membership on a city council 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. 9 May 1960 Double Office Holding; County Welfare Board and County Board of Elections Member of county board of welfare comes within the meaning of the words "commissioners of public charities" as used in Article XIV, Section 7, North Carolina Constitution. 13 October 1958 Double Office Holding; Deputy Clerk of Superior Court; Deputy Register of Deeds The office of deputy clerk of the superior court and that of deputy register of deeds 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. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 49 2 May 1960 Double Office Holding; Deputy Register of Deeds; Notary Public The office of notary public and that of deputy register of deeds are both considered public offices. The office of notary public, however, is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold both these offices at the same time. 16 January 1959 Double Office Holding; Deputy Sheriff; ABC Enforcement Officer; Chief of Police The office of deputy sheriff, that of ABC enforcement officer, and that of chief of police of a municipality are all considered public offices within the meaning of Article XIV, Section 7, of the Constitution, which pro-hibits double office holding, and one person may not hold any combination of these offices at the same time. 26 March 1959 Double Office Holding; Deputy Sheriff; Attendance Officer; Justice of the Peace The office of justice of the peace is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold this office and at the same time hold another public office. A person may hold the office of deputy sheriff and at the same time hold the office of justice of the peace. The position of attendance officer authorized by G. S. 115-168 is not a public office within the meaning of the above section of the Constitution. 10 December 1959 Double Office Holding; Deputy Sheriff and Township Constable The office of deputy sheriff and that of township constable are both con-sidered 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. 18 December 1958 Double Office Holding; Dog Warden and Deputy Sheriff The office of dog warden and that of deputy sheriff are both considered public offices within the meaning of Article XIV, Section 7, of the Con-stitution, which prohibits, double public office holding, and one person may not hold both these offices at the same time. 50 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 9 September 1958 Double Office Holding; Dog Warden and Township Constable The office of dog warden and that of township constable are both con-sidered 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. 30 April 1959 Double Office Holding; Forest Ranger; City Councilman The office of forest ranger and that of city councilman are both con-sidered 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. 22 April 1959 Double Office Holding; General County Court; District Recorder's Court; County Judge; Ex Officio Recorder It would not be unconstitutional for a statute to provide that the Judge of a General County Court also serve ex officio as Judge of a district Recorder's Court. 14 November 1958 Double Office Holding; Justice of the Peace Holding Other Public Office The office of justice of the peace is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold this office and at the same time hold another public office. 12 May 1959 Double Office Holding ; Member of Board of Education ; City Board of Commissioners The office of membership on a city board of education and that of membership on the board of commissioners of a municipality 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, 5 August 1959 Double Office Holding; Member of Board of Trustees of County Hospital Not Public Officer Members of boards of trustees of county hospitals are not considered public officers within the meaning of Article XIV, Section 7, of the Con-stitution, which prohibits double office holding. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 51 25 January 1960 Double Office Holding; Member of County Board of Education; Member of Executive Board of State Department of Archives and History The office of membership on a county board of education and that of membership on the Executive Board of the State Department of Archives and History 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. 6 May 1959 Double Office Holding; Member of County Board of Elections and Member of Special School District Board The office of membership on a county board of elections and that of membership on a special school district board 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. 14 May 1959 Double Office Holding; Member of County Board of Health and Member of City Council The office of membership on a county board of health and that of membership on a city council 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. 9 February 1959 Double Office Holding; Member on County Tax Equalization Board AND County Welfare Board The office of membership on a county tax equalization board and mem-bership on a county welfare boaid are both public offices; however, mem-bership on a county welfare board is exempt from the provisions of Article XIV, Section 7 of the Constitution which prohibits double office holding. Therefore, a person may at the same time be a member of a county welfare board and hold another public office. 23 June 1959 Double Office Holding ; Member of County Welfare Board and Member of Town ABC Board The office of membership on a county welfare board is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold this office and at the same time hold another public office. 52 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 24 June 1959 Double Office Holding; Member op the Executive Board of the Department of Archives and History and Register of Deeds A member of the Executive Board of the State Department of Archives and History and a register of deeds of a county are both considered public officers vi^ithin 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. 28 August 1958 Double Office Holding; Member of Local Government Commission Membership on the Local Government Commission is considered a public office Vi^ithin the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding. 13 August 1959 Double Office Holding; Member of Local School Committee and Member of County Board of Welfare The office of membership on a county board of public welfare is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding, as being a commissioner of public charities, and one person may hold this office and at the same time hold another public office. 27 April 1959 Double Office Holding; Member of Parks and Recreation Commission; Member of School Board The office of membership of the Shelby Parks and Recreation Commission and that of membership on the Shelby School Board are both considered public offices within the meaning of Article XIV, Section 7, of the Con-stitution, which prohibits double office holding, and one person may not hold both these offices at the same time. 4 April 1960 Double Office Holding; Member of State Board of Dental Examiners; Member of Town Board of Aldermen; Member of County Board of Commissioners Membership on the State Board of Dental Examiners, membership on a town board of aldermen, and membership on a county board of commis-sioners are all 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 any combination of these offices at the same time. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 53 10 December 1959 Double Office Holding; Member of State Board op Medical Examiners AND Member of County Board of Health The office of membership on a county board of health and that of mem-bership on the State Board of Medical Examiners are both considered public offices within the meaning of Article XIV, Section 7, of the Con-stitution, which prohibits double office holding, and one person may not hold both these offices at the same time. 3 November 1959 Double Office Holding; Member of State Rural Electrification Authority Board and Parole Supervisor The office of membership on the State Rural Electrification Authority Board and the office of Parole Supervisor 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. 30 April 1959 Double Office Holding; Notary Public; Coroner The office of notary public is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold this office and at the same time hold another public office. 6 November 1959 Double Office Holding; Prosecuting Attorney of County Recorder's Court; Prosecuting Attorney of Mayor's Court The office of prosecuting attorney of a county recorder's court and that of prosecuting attorney of a mayor's court 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. 27 April 1959 Double Office Holding ; Registrar of Elections ; Town Alderman The office of county registrar of elections and that of town alderman 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. 54 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 2 March 1959 Double Office Holding; School Principal A school principal occupies a position of employment rather than a public office. 21 August 1958 Double Office Holding; Solicitor of County Recorder's Court and Assistant District Solicitor A solicitor of a county recorder's court and an assistant solicitor ap-pointed under G. S. 7-43.3 are both public offices within the prohibition contained in the Constitution against double office holding. 19 January 1960 Double Office Holding; Solicitor of Recorder's Court; Chairman of County Board of Elections The office of solicitor of a county recorder's court and that of chairman of 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. 17 December 1958 Double Office Holding; Solicitor of Recorder's Court; County Attorney The position of county attorney is not an office within the meaning of Article XIV, Section 7 of the Constitution which prohibits double office holding. 11 January 1960 Double Office Holding; Superintendent of Hospital; Town Alderman The position of hospital superintendent or matron, or both, within the purview of Section 7 of Chapter 263 of the Public-Local Laws of 1935, would be considered positions of employment rather than public office hold-ing within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding. 21 April 1959 Double Office Holding; Township Constable and Member of Board of Town Commissioners The office of township constable and that of membership on a board of town commissioners 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. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 55 26 January 1959 Double Office Holding; Township Constable and Town Policeman The office of township constable and that of town policeman 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. 30 July 1959 Double Office Holding; Town Alderman; Chief of Municipal Fire Department A town alderman and the chief of a municipal fire department are both considered public officers 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 July 1958 Double Office Holding; Town Commissioner and Member of Local School Committee The office of town commissioner and that of membership on a local school committee 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. 6 May 1959 Double Office Holding; Town Councilman and County Veterans Service Officer The position of county veterans service officer is not considered a public office within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold this position and at the same time serve as a town councilman. 21 January 1960 Double Office Holding; Town Mayor and County Health Department Employee An employee of a county health department is not considered a public officer within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold this position and at the same time hold a public office. 56 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 27 February 1959 Double Office Holding; Town Policeman and Deputy Sheriff The office of town policeman and that of deputy sheriff are both con-sidered offices within the meaning of Article XIV, Section 7, of the Con-stitution, which prohibits double office holding, and one person may not hold both these offices at the same time. 5 March 1959 Double Office Holding; Trustee of County Hospital; Judge of Recorder's Court A member of the board of trustees of a county hospital is a public officer within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may not hold this office and at the same time hold another public office. The judge of a county criminal court is considered a public officer within the meaning of the above section of the Constitution. 30 September 1959 Double Office Holding; Veterans Service Officer and Civil Defense Director It is thought that a Veterans Service Officer is not a public official within the contemplation of the double office holding provision of Article XIV, Section 7 of the State Constitution. A Veterans Service Officer is simply an employee of the county. EDUCATION 14 April 1959 Education; Community Colleges; Sabbatical Leave The Community College Act, G. S. 116-47, et seq., contains no provision authorizing the making of monetary grants to persons in connection with sabbatical leave. ELECTIONS 21 August 1959 Elections; ABC Election; Time For Holding The provisions of G. S. 18-124 prohibiting the holding of a beer and wine election within 60 days of the holding of any general election, special election or primary election has no application to an A.B.C. Election held pursuant to G. S. 18-61. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 57 The only restriction as to the time of holding an A. B.C. election is that the election may not be held on or within 60 days of any biennial election for County Officers. 29 January 1960 ELECTIONS; Adoption of Loose Leaf Registration System and New Registration To adopt the loose-leaf registration system four steps are necessary: 1. County board of elections adopts a budget sufficient to cover the expense of installing the system; 2. budget is presented to county board of com-missioners for approval, 3. assuming approval by county board of commis-sioners, county board of elections adopts a resolution providing for the installation of the system subject to authorization by the State Board of Elections, and 4. the State Board of Elections authorizes the adoption of the system. If new loose-leaf registration system is installed, the old registration books cannot be used for the purpose of determining at an election who is registered and qualified to vote. CLARK v STATESVILLE, 139 N. C. 49. 25 August 1958 Elections; Certain Special Elections may be held on date of General Election There is no legal reason why a special election for the creation of a mosquito control district, as provided by Chaper 1247, Session Laws of 1957, may not be held on the same date as the general election in November. G. S. 18-61, G. S. 18-124 (f) and G. S. 153-93 have no application. 29 January 1960 Elections; Filing Fee for Unexpired Term Candidate filing for unexpired term should pay full fee required by G. S. 163-120 and not a pro rata filing fee. 20 November 1959 Elections; Justices of the Peace; Residence Requirements Even though a justice of the peace changes his residence as to precincts, he is still qualified to file for office of justice of the peace in the next primary so long as his residence continues in the same township. 9 June 1960 Elections; Name to be Used on Ballot An aspirant for nomination who has his name changed between the first and second primary is not entitled to have his new name printed on the second primary ballot. G. S. 163-151 provides that "in printing the names 58 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. of candidates on all primary and general election ballots, only the legal name of the candidate as same appears on notice of candidacy form shall appear on the ballot." 7 June 1960 Elections; Primaries; Constitutional Law; Grandfather Clause; Validity of Grandfather Clause The so-called "Grandfather Clause", as contained in Article VI, Sec. 4, of the North Carolina Constitution, and all statutes enacted thereunder for the administration of same, are void, invalid and unconstitutional and have been declared to be so by the Supreme Court of the United States in the Case of LASSITER v. NORTHAMPTON COUNTY BOARD OF ELEC-TIONS. Future registration must be based upon the literacy test as required by the statutes of this State. G. S. 163-28. 1 June 1960 Elections; Primaries; Eligibility to Vote In order to participate in a primary election, an elector must declare the party of his choice before participating in the primary of the party with which he is affiliated. A person not affiliated with any political party may not participate and vote in a party primary election. 27 August 1958 Elections; Procedure when no Candidate Nominated in Primary When no candidate files for a county office subject to the party primary, the provisions of G. S. 163-145 are not applicable. Under such circum-stances the Executive Committee of the political party involved may not designate a nominee. However, under G. S. 163-175(3) a person may be elected to such office by write-in votes. 19 September 1958 Elections; Residence; Registration In order to vote in this State, a person must have been a resident of the the State for a year and a resident of the voting precinct where he proposes to vote for not less than thirty days immediately preceding the date of election. One may register in advance of this time provided he will have met the residence requirements by the time of the election in which he proposes to vote. 24 November 1958 Elections; Sanitary Districts; Members of Board; Write-In Votes The provisions of the elections laws relating to write-in ballots apply in elections of members of a sanitary district board. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 59 14 June 1960 Elections; Special Election for Industrial Development Tax Under Chapter 1086 of the Session Laws of 1959, only one election may-be held to determine whether or not an additional industrial development tax may be levied. 17 May 1960 Election; "Straw^" Vote A "straw" vote cannot be held in conjunction with a primary election. 28 April 1960 Elections; Voters; Qualification and Registration of Voters Under the provisions of G. S. 163-21, G. S. 163-196 and G. S. 163-197 it definitely appears that a registrar can take such steps as are necessary to carry out the registration of qualified voters in an orderly and business-like manner, including, where necessary, in order to properly carry out the functions of the office, the authority to limit the number of people within the room being used for the purpose of registration. Under G. S. 163-20 the board of county commissioners has authority to provide additional com-pensation for precinct election officials above the $15.00 per day for certain days therein specified. 19 May 1960 Elections; Write-Ins at Primaries "Write-in" votes are not permitted in a primary. EMINENT DOMAIN 30 November 1959 Eminent Domain; Condemnation; Special Proceedings; Public Utilities The amount of land necessary for a particular project involving con-struction of a dam is generally in the discretion of the company exercising the power of eminent domain, in the absence of a showing of an abuse of discretion. Landowners adjoining the lake would have no right to use the water from the lake for irrigation purposes except by consent of the power company. 60 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 23 February 1959 Eminent Domain; Urban Redevelopment Commission; Necessity for Complying with Public Works Eminent Domain Law G. S. 160-465 provides that an urban redevelopment commission may-exercise the right of eminent domain in the manner provided by law for the exercise of such right by municipalities. Therefore, such a commission may exercise that right either under art. 1 of ch. 40 of the General Statutes or under the Public Works Eminent Domain Law. ESCHEATS 2 June 1959 Escheats—University of North Carolina; Liability for Ad Valorem Taxes When a person dies leaving real estate which escheats to the University of North Carolina, the property escheated at the instant of the person's death, and no ad valorem taxes accrue thereon thereafter. ESTATES 11 July 1958 Estates; Estate by Entireties; Tax Judgments Against Husband; Sale OF Property Under Power of Foreclosure in Deed of Trust Executed BY Husband and Wife; Surplus Proceeds A tax judgment against the husband is not a lien against real estate held by the husband and his wife as an estate by the entireties, but the excess proceeds from sale of such property under the power of sale con-tained in a deed of trust are owned by the husband and wife as tenants in common, nothing else appearing, and the husband's share of the excess proceeds in the hands of the trustee may be attached by the Commissioner of Revenue through garnishment. EXECUTORS AND ADMINISTRATORS 12 September 1958 Executors and Administrators ; Action for Wrongful Death ; Damages ; Conflict of Laws In a wrongful death action the amount and distribution of the recovery are matters of substantive law and on a question of conflicts are governed by the law of the jurisdiction in which the injury and death occurred. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 61 Under the Virginia statute Title B, Section 636, the amount of the recovery is limited to $30,000 and the jury is authorized to apportion between and among the beneficiaries under the statute. If the jury fails to do so, the presiding judge may make the apportionment. 23 July 1958 Executors and Administrators; Conviction of Felonious Slaying of Husband Bars Widow's Right to Administer When either party to a marriage is convicted of the felonious slaying of the other or of being accessory before the fact to such slaying, the party so convicted shall thereby lose his or her right to administer on the estate of the other, to a distributive share in the personal property of the other, dower and courtesy rights, and in such case the widow shall not be entitled to her widow's year's allowance, G. S. 28-10; G. S. 30-4; G. S. 52-15. However, if such a party is acquitted of the criminal charge, the rights above enumerated are not forfeited. McMICHAEL v PROCTOR, 243 N. C. 479. 14 July 1958 Executors and Administrators; Distribution Under G. S. 28-149(5) Under G. S. 28-149(5), if there is neither widow or children nor any legal representative of the children, the personal estate shall be distributed equally to every of the next of kin of the intestate who are in equal degree, and those who legally represent them. In case the class of next of kin is composed solely of brothers and sisters, they share per capita; but if a brother or sister has predeceased the intestate, those who legally represent the deceased brothers and sisters share per stirpes. If all the brothers and sisters have predeceased the intestate and have left children surviving, the nieces and nephews share per capita. 31 March 1960 Executors and Administrators; Final Accounts; Compelling a ccounting Clerks of the Superior Court have power to compel executors and admin-istrators to file accounts. FEES 2 June 1960 Fees; Witness Fees; Minimum Wage Law Fees allowed to witnesses in the Superior Court are fixed by law, and the minimum wage law of the State has no application thereto. 62 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. FINES AND FORFEITURES 4 December 1958 Fines and Forfeitures; Fines Paid into School Fund; Procedure for Remission for Good Cause Shown G. S. 115-98 (3) provides that, when fines have been assessed and col-lected and paid into the school fund, such fines may not be remitted "except for good and sufficient reasons, which reasons shall be stated on the docket and at all times be open to public inspection." Under the above statute, upon a proper showing in a motion in the cause after notice to the County Board of Education, the fine imposed could be remitted to the person who paid the same. Any costs collected and paid to the City in such a case could be refunded by action of the governing board of the City. FIRE DEPARTMENTS 10 May 1960 Fire Departments; Fire Protection; Powers and Duties of Members OF the Fire Department Members of a fire department have the implied authority to direct traffic in the vicinity of a fire and to order sight-seers and other persons out of a burning building or its vicinity. Ordinarily, they have no power of arrest, 9 February 1959 Fire Departments; Rural Fire Department A rural protection district, as provided in Section 69-25.1 of the General Statutes, cannot include an incorporated town within the boundaries of the district because that section specifically limits such protection district to "an area lying outside the corporate limits of any city or town". On the other hand, there is no statutory objection to such district surrounding a town. 4 June 1959 Fire Departments; Rural Fire Protection; Condemnation of Buildings Chiefs of rural fire departments do not have such authority to condemn unsafe buildings as is bestowed on the fire chief or local building inspector of certain towns by the provisions of Article 11, Chapter 160 of the General Statutes. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 63 GAME LAWS 1 July 1959 Game Laws; Fishery Inspectors; Power of Arrest Fishery inspectors are not special peace officers within the purview of G. S. 113-28.1; however, they have ample authority under the provisions of Subchapter 4 of Chapter 113 of the General Statutes of North Carolina to enforce the fishery laws, rules, and regulations and to make arrests when necessary. 29 July 1958 Game Laws; Fishing; Fishing From Highway Neither the State nor the public acquires any fishing rights as a result of the acquisition of a highway easement by the State Highway Commis-sion. An individual attempting to fish in a private pond from a highway would be subject to the same laws, regulations and restrictions as if he were fishing from any other bank on the pond. 9 May 1960 Game Laws; Fishing; Licenses; Residence Requirements For the purposes of G. S. 136-146 requiring nonresident fishing licenses, a person is not considered to have lost his county residence who leaves his home and goes into another state or county for temporary purposes only, with the intention of returning. Evidence of such intention is found in ownership of property, place of voting, attendance of children at schools, place of pajrment of taxes, and previous purchase of license. 21 October 1958 Game Laws; Fishing; Private Ponds; What Constitutes Private Pond Any lake in which fish are free to move across property lines are public waters, and subject to all laws and regulations governing freshwater fishing. 17 December 1958 Game Laws; Game Animals in Captivity A game animal illegally acquired and illegally held in possession may be seized by proper enforcement officers to be held as evidence for the trial of the person for his illegal possession of the game animal. 30 October 1959 Game Laws; Hunting with Pistol; Weapons; Hunting with Pistol Unlawful It is unlawful to take game with a pistol. 64 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. GASOLINE 20 May 1960 Gasoline and oil inspection; branding gasoline The Gasoline and Oil Inspection Board of the North Carolina Department of Agriculture has no authority under the existing statutes to prescribe rules and regulations by which gasoline may be sold at wholesale. GOVERNOR 22 April 1959 Governor; Term of Office; Succeeding Self in Office The Constitution of North Carolina prohibits the Governor from succeed-ing himself. GUARDIANS 22 April 1960 Guardians; Bonds; Personal Sureties; Estate in Excess of $100,000 Where the personal estate of a minor exceeds $100,000, a guardian with personal sureties may give a bond equal to the value of the personal estate plus 10 per cent. 20 April 1959 Guardians; Clerk of the Court; Examination of Assets The certification by the Clerk of a Superior Court that he has examined the investments and account of a guardian as required by G. S. 33-42.1 should be made by the Clerk to whom the guardian is required to account, and not to the Clerk of the Superior Court in the county where the guardian resides. HEALTH Health; Compulsory Polio Immunization; County Board of Health Under the provisions of Section 130-93 of the General Statutes, a local board of health is authorized to adopt a regulation making polio immuni-zation compulsory provided the statutory exemptions relating to diphtheria, tetanus, whooping cough, and smallpox immunization are also included in such regulation. 35] BIENNIAL REPORT OP THE ATTORNEY GENERAL 65 13 October 1958 Health; Compulsory Polio Immunization; No State Statute There is no State law requiring school children to be vaccinated against polio. However a local board of health would have authority to adopt regu-lations requiring polio vaccination of school children. 11 September 1959 Health; County Board of Health; Rules and Regulations; Requirement of Pasteurization of Milk A local board of health has authority to adopt regulations prohibiting the sale of unpasteurized milk. 6 August 1958 Health; District Board of Health; Authority; Enforcement of Penalties for Violation of Rules and Regulations A District Board of Health is without authority to prescribe criminal punishment for the violation of its rules and regulations. STATE v CUR-TIS, 230 N. C. 169. The Statute, G. S. 130-203 provides that a violation of such rules and regulations is a misdemeanor punishable by a fine not exceeding $50 or im-prisonment not exceeding thirty days. 18 July 1958 Health; District Boards of Health; County Appropriations; Contract OF Local Board with State Board When a county contracts to appropriate a lump sum to a district health department during a fiscal year, the fact that all the money is not expended does not entitle the county to a pro rata refund because the contract expressly provides that any balance at the end of the fiscal year shall be carried forward to the credit of the health department for the succeeding fiscal year. 14 July 1959 Health; District Health Departments; Composition of the Board; Number of Public Members Permitted by Statute The provisions of G. S. 130-14 relating to the organization of district health departments permit four public members for districts comprised of two or more counties. If the district is composed of more than four counties, however, an additional public member may be added to the board. One public member must come from each of the participating counties. 66 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. A district composed of five counties would be entitled to five public mem-bers on its board. Any public members in excess of five would be in viola-tion of the statute. 15 September 1959 Health; District Health Departments; Ex-Officio Member; Number OF Public Members The ex-officio membership of a district board of health must be one of the public officers or officials named in G. S. 130-14. This includes one chairman of a board of county commissioners, one mayor of a town which is the county seat and one county superintendent of schools. In a district health department comprised of two or more counties but not more than four counties the public membership cannot exceed four members. 18 November 1959 Health; Immunization of Children; "Booster" Shots Before Entering School; Public Schools It is the intent and purpose of Article 9 of Chapter 130 of the General Statutes that children should have had whatever immunization treatments that might be necessary in order to have an effective immunization condi-tion or status as of the time of entering school for the first time and, if "booster" shots are necessary to accomplish this, then a principal of a school would have authority to refuse admission of a child to a school until such condition was corrected. 5 June 1959 Health; State Board of Health; Grants-in-Aid to Counties; Local Health Department Expenditures; Requirement of Audit The State Board of Health has authority to require an audit or account-ing in connection with the expenditure of funds by local health departments as a condition upon which federal and state grants-in-aid are furnished such local health departments. 19 February 1959 Health ; State Board of Health ; Health Reports ; Reporting of Cancer It would be necessary to amend G. S. 130-184 in order to authorize re-porting of cancer cases by pathology number rather than by name of the person having cancer inasmuch as said statute specifically requires at present that the report include "the name, address, etc., ... of any person . . . who is found to have cancer of any type." 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 67 31 December 1958 Health ; State Board of Health ; Maternal and Child Health Program AND Crippled Children's Program G. S. 130.9 provides authority for the State Board of Health to accept and allocate federal funds for the operation of maternal and child health programs and crippled children's programs. 26 January 1959 Health; State Board of Health; Merit System Council; Federal and State Local Health Grants-in-Aid The State Board of Health may withhold allocation of federal and state grants-in-aid funds to local health departments until the local departments have demonstrated compliance with the merit system laws and regulations. 18 September 1958 Health; State Board of Health; Sanitary Districts; Creation of New District In creating a sanitary district, the State Board of Health may not alter the territorial area from that described in the petition for the creation of the district. 7 October 1958 Health; State Board of Health; Sanitary District
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 | 1958; 1959; 1960 |
Subjects |
Attorneys general's opinions--North Carolina Automobiles--Transportation--Law and legislation Criminal law Corporations--North Carolina Education Election law Genealogy Judicial statistics--North Carolina Insurance Local government Public health Public officers--North Carolina Schools 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 | 11122 KB; 238 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_biennialreportattorneygeneral19581960.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_edp\images_master\ |
Full Text | THE LIBRARY OF THE UNIVERSITY OF NORTH CAROLINA THE COLLECTION OF NORTH CAROLINIANA C3U0 we? a 19^8-60 UNIVERSITY OF N.C. AT CHAPEL HILL 00033944983 This book must not be token from the Library building. Digitized by the Internet Archive in 2011 with funding from Ensuring Democracy through Digital Access (NC-LSTA) ,,, ,1 http://www.archive.org/details/biennialrep1958attrny1960 BIENNIAL REPORT OF THE ATTO RNEY GENERAL OF THE State of North Carolina VOLUME 35 1958-60 MALCOLM B. SEAWELL* THOMAS WADE BRUTON ATTORNEY GENERAL Claude L. Love** Harry W. McGalliard Peyton B. Abbott Ralph Moody Kenneth F. Wooten, Jr. F. Kent Burns Basil L. Sherrill* Lucius W. Pullen H. Horton Rountree Glenn L. Hooper, Jr. Thomas L. Young Assistant Attorneys General \ * Resigned *• Deceased LETTER OF TRANSMITTAL 1 January 1961 To His Excellency Terry Sanford, 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 1958-60. Respectfully yours, Thomas Wade Bruton, Attorney General LIST OF ATTORNEYS GENERAL SINCE THE ADOPTION OF CONSTITUTION IN 1776 Term of Office Avery, Waightsill 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 1868-18''9 Olds, Lewis P 18*^9-1870 Shipp, William M 1870-1872 Hargrove, Tazewell L 1872-1876 Kenan, Thomas S 1876-1884 Davidson, Theodore F 1884-1892 Ofborne, 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 1935-19''8 McMullan, Harry 1938-1955 Rodman, William B., Jr 1955-1956 Patton, George B 1956-1958 Seawell, Malcolm B 1958-1960 Bruton, Thomas Wade 1960- EXHIBIT I Civil Actions Pending in State and Federal Courts During the Biennium 1958-60 : Number of Cases Pending in the Superior Court of North Carolina State Taxes 36 Motor Vehicle Drivers' Licenses 41 Condemnation Proceedings 261 tjtilities Commission Cases 10 Beer and Wine License Revocations 19 Other 43 TOTAL 410 Pending in the Supreme Court of North Carolina State Taxes 2 Utilities Commission Cases 4 Other 2 TOTAL 8 Pending in the United States District Courts State Taxes 9 Other 3 TOTAL 12 Pending Before U. S. Federal Trade Commission Other 1 Civil Cases Disposed of During the Biennium 1958-60 In the Superior Courts of North Carolina 366 In the Supreme Court of North Carolina 28 In the Supreme Court of the United States 1 In the District Courts of the United States 5 In the Durham County Civil Court 1 Before the North Carolina Industrial Commission . . . 800 Habeas Corpus Petitions Disposed of in the Superior Court 228 TOTAL 1,429 6 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. EXHIBIT II Criminal Cases Disposed of in the North Carolina Supreme Court During the Biennium 1958-60: Abandonment-Nonsupport 4 Abortion-Procuring 2 Assault 2 Assault on Female 3 Assault with Deadly Weapon 6 Assault with Intent to Rape 2 Breaking-Entering-Larceny-Receiving 9 Bribery 1 Burglary Second Degree 1 Carnal Knowledge 1 Carrying Concealed Weapon 1 Conspiracy 4 Embezzlement 2 Felonious Assault 3 Felonious Burning of Property 2 Injury to Personal Property 3 Lottery 2 Manslaughter 17 Murder First Degree 5 Murder Second Degree 2 Perjury 2 Rape 6 Riot 5 Robbery 4 Seduction 1 Violating City Ordinance 1 Violating Election Laws 1 Violating Junk Yard Laws 1 Violating Liquor Laws 12 Violating Motor Vehicle Laws 25 Violating Real Estate License Law 1 Violating Seed Sale Laws 1 Worthless Check 1 TOTAL 183 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 7 Number of Cases dismissed on motion during the Biennium 1958-60 11 Number of Petitions for Writ of Certiorari denied during the Biennium 1958-60 77 Number of Petitions for Writ of Certiorari allowed during the Biennium 1958-60 8 Number of Petitions for Writ of Error Coram Nobis denied during the Biennium 1958-60 1 Number of Petitions for Writ of Habeas Corpus denied during the Biennium 1958-60 1 Number of Petitions for Writ of Mandamus denied during the Biennium 1958-60 1 Fees Transmitted by the Attorney General to the State Treasurer During the Biennium 1958-60 . . $ 960.00 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. SUMMARY OF ACTIVITIES Staff Personnel Since the publication of the Biennial Report 1956-58, the State sustained the loss, by resignation, of Attorney General Malcolm B. Seawell. The present Attorney General, by appointment of Governor Hodges, succeeded him. During the biennium the State also sustained a great loss by the death of Assistant Attorney General Claude L. Love. From the time of his appointment on August 16, 1951, until his untimely death on November 11, 1959, Mr, Love served the State unselfishly and efficiently, bringing to bear upon a host of State and local legal problems a keen legal mind, a wealth of learning and a sympathetic and understanding consideration. Assistant Attorneys General who were serving at the close of the bien-nium are as follows: Harry W. McGalliard, Peyton B. Abbott, Ralph Moody, Kenneth F. Wooten, Jr., F. Kent Burns, Lucius W. Pullen, H. Hor-ton Rountree, Glenn L. Hooper, Jr., and Thomas L. Young. At the close of the biennium Giles R. Clark was serving as Revisor of Statutes. Staff Attorneys who were serving at the close of the biennium are as follows: Parks Icenhour, William R. Pierce, Charles D. Barham, Jr., Richard T. Sanders, Bernard A. Harrell, Charles W. Barbee, Jr., G. Andrcv. Jones, Jr., Harrison Lewis, Carl C. Churchill, Jr., Harold D. Coley, Jr., James F. Bullock, John C. Daniel, Jr., and Andrew H. McDaniel. Members of the secretarial staff who were serving at the close of the biennium are as follows: Miss Elizabeth N. Flournoy, Mrs. Lorraine H. Allers, Mrs. Carolyn D'Alio, Miss Aida Epps, Mrs. Ethel Burt Kelly, Mrs. Katharine L. Dowd, Mrs. Cleo A. Purcell, Mrs. Jean C. Spence, Mrs. Edna Jerome, Mrs. Helen W. Bagwell, Mrs. Barbara C. Owens, Mrs. Grace Gardner, Mrs. Katharine Lassiter, Mrs. Alice C. Gorham, Miss Virginia Lyon, Mrs. Mary E. Green, Miss Sylvia Kinlaw, Mrs. Shirley Cox, Mrs. Joyce Clark, Mrs. Annie Lou Cahoon. Highway Division of Attorney General's Office During the period of this biennium the Attorney General in the discharge of his responsibilities to represent the State Highway Commission and its Director has undertaken and has effectuated a reorganization of his staff so as to more efficiently represent the Commission in the increasing number of condemnation suits brought against the Commission and to eliminate insofar as possible the backlog of cases which had accumulated in the courts throughout the State against the Commission. The number of con-demnation cases against the State Highway Commission has been reduced from a total of 526 as of July 1, 1958, to a total of 261 as of July 1, 1960. During this same period an increasing number of the older cases has been disposed of and a large number of cases has been disposed of by trial of the issues to a jury verdict. During the 1959 Session of the General Assembly, there was enacted a new condemnation procedural law which very markedly changes the con-demnation procedure which the State Highway Commission must follow 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 9 in acquiring rights of way for highways. The effective date set in the Act was July 1, 1960. Prior to the effective date of the Act the members of the staff of this office have developed procedure for handling these cases so that the construction work of the State Highway Commission will not be delayed by the requirements that the Commission institute such actions in the Superior Court on those matters which have not been settled or upon which agreement has not been secured by the property owner for entry prior to the letting of the contract for construction of such highway pro-jects. It is anticipated that approximately 750 to 1,000 of the cases will be instituted annually. During the biennium the members of this staff have participated with the administrative personnel of the Highway Commission in the determina-tion of a number of claims brought by Highway contractors arising out of the contract work carried on by the Commission. The State Highway Commission has been represented in the Supreme Court in twelve cases during the period by the members of this staff. At the conclusion of the biennium there were no cases involving the State Highway Commission pending in the Supreme Court. Throughout the biennium the staff has had the very complete cooperation of the State Highway Commission and the Director of Highways in the prosecution of the Attorney General's work for the State Highway Com-mission. 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. 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 Laws, 1959). The effective date of this Act was July 1, 1959. During the biennium from July 1, 1958, to July 1, 1960, a total of 1230 tort claims was filed against the various departments, institutions and agencies of the State. Approximately 500 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. 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 300 disputed claims involving State employees were heard by the Commission. 10 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. DIGEST OF OPINIONS AGRICULTURE 1 March 1960 Agriculture; Fertilizer; Simultaneous Application of Registered and Unregistered Fertilizer The simultaneous application by a contractor of a registered and un-registered fertilizer, the unregistered fertilizer having been supplied by the farmer, does not constitute a sale of a "mixed fertilizer" within the contemplation of the North Carolina Fertilizer Law of 1947. 9 September 1959 Agriculture; Food, Drug and Cosmetic Act; Spring Water If natural spring water is advertised as having a therapeutic value and as being intended for use in the cure, mitigation or treatment of certain diseases, such spring water would be considered a drug within the meaning of the North Carolina Food, Drug and Cosmetic Act, and would come within the purview of G. S. 106-38 (b) relating to the advertisement of drugs. 7 April 1960 Agriculture; Marketing; Production and Distribution of Eggs A poultry processor commercially marketing an egg supply obtained as a by-product from the slaughter of poultry is a distributor subject to the provisions of the North Carolina Egg Law (Article 25, Chapter 106) rather than an egg producer and exempt under G. S. 106-245.11. 31 July 1958 Agriculture ; Milk and Dairy Products ; Labeling of Cartons ; Misbranding; Sufficiency of Label G. S. 106-130 and G. S. 106-268 prohibit labeling on containers or cartons containing food, milk or dairy products if it is false or misleading in any particular and require a prominent label showing the name of the defined product and the name of the producer, processor or distributor, as well as an accurate statement of the quantity of contents in terms of weight or measure. Cartons containing milk which emphasize the brand name in large letters with very small letters at the bottom of the carton showing the processor's name are misleading in that they give the impression to the public that the distributor has produced and processed the milk as his own product; ice cream cartons containing the name of a distributor but in truth and fact contain ice cream processed or manufactured by other firms or corporations are misleading when the processor's or manufacturer's name does not appear in prominent letters on the carton ; ice cream cartons containing the name of the company manufacturing same, along with the 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 11 address of the home office or general office, are sufficient as to the name and address of the producer or processor, even though these home offices or general offices may be out of the State, provided, always, a code number designating the name of the plant in which the ice cream is produced or manufactured is stamped on the carton. 30 October 1959 Agriculture; Tobacco Seed Committee; Powers and Duties The Tobacco Seed Committee does not have the authority to refuse to recommend for recording by the Commissioner of Agriculture an identifiable variety of tobacco seed on the ground that such seed will produce tobacco, the leaf of which will not qualify for the full government support price. 27 July 1959 Agriculture; Uniform Weights and Measures; Moisture Testing Meters and Devices Where the North Carolina Department of Agriculture has adopted moisture content tolerances for the various agricultural commodities whose weights per bushel are set out in G. S. 81-23, the Department has sufficient authority to regulate, in accordance with Article 1, Chapter 6 of the rules and regulations of the North Carolina Department of Agriculture, mois-ture testing meters and devices which determine the moisture content of the various commodities. 18 July 1958 Agriculture; Weights and Measures; Tank Trucks; Inspection G. S. 81-18 makes it unlawful for a person to use in business a measuring device which has not been checked and sealed within a year by the weights and measures Division of the State Department of Agriculture. However, when a tank is equipped with a metering device and the tank itself is not used as a method of measuring, the tank in such instances is not a measur-ing device and is not subject to the above referred to statute. APPROPRIATIONS 3 December 1959 Appropriations; General Assembly Expenses; Printing Revenue Act Where the Appropriations Act passed by the General Assembly incor-porated a specific recommendation of the Advisory Budget Commission for the appropriation of funds for the printing of The Revenue Act, as amended, the failure of the General Assembly to enact a statute requiring the print- 12 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. ing of The Revenue Act, as amended, would not have the effect of deleting or defeating the specific appropriation, and the allotment of funds from such appropriation may be made subject to the approval of the Director of the Budget or such person as may be designated or appointed by him in writing to perform that duty. Article 1, Chapter 143 of the General Statutes. ARCHITECTS 13 January 1960 Architects; Practice of Architecture An employee of a corporation in preparing building plans and specifica-tions for the corporate employer is not an "individual making plans for a building for himself" under the provisions of G. S. 83-12. ART 8 February 1960 Art; The North Carolina Museum of Art; Sales from Book Shop Sales made from the Book Shop of the State Museum of Art are exempt from the provisions of G. S. 66-58 which prohibit governmental agencies from engaging in business in competition with citizens of the State. BAIL 30 April 1959 Bail; When Set by Sheriff or Other Officer Having Custody; Author-ity OF Sheriff Where Amount of Bail is Previously Fixed BY A Magistrate The provisions of G. S. 15-108 relating to bail do not authorize a sheriff or other officer having custody of a prisoner to fix the bail of the prisoner and release him where a bail has previously been set for such prisoner by a magistrate. The sheriff or other officer, however, can take the bail of a prisoner in their custody under such terms and amounts as have been fixed by the committing magistrate. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 13 BANKS 17 September 1958 Banks; Application to Establish Bank; Conditional Approval; Effect OF Failure to Meet Condition When an application to form a new bank is approved by the Commissioner of Banks and the State Banking Commission on condition that the proposed bank be approved by the Federal Deposit Insurance Corporation and the F. D. I. C. refused approval, such action terminates that proceeding to establish a nevsr bank. Thereafter, in order to create such bank, it is neces-sary to apply anew to the Commissioner of Banks. 31 October 1958 Banks; Change of Bank's Name; Authority of Commissioner of Banks In view of the fact that the original granting of a charter to establish a bank must be approved by the State Banking Commission, an amendment to the bank's charter, changing its name, is also subject to the approval of the State Banking Commission. 3 April 1959 Banks; Checks Issued on Sunday A check issued in North Carolina on Sunday is just as "good" as one issued on any other day. 18 February 1S59 Banks; Commercial and Industrial Banks; Single Payment Loans; Loan Fees A "single payment" loan is not an installment loan and, therefore, a bank would not be authorized to collect with respect thereto the fees provided for installment loans in Paragraph 3 of Section 53-141 of the General Statutes. 19 June 1959 Banks; Deputy Commissioner of Banks; Oath of Office A Deputy Commissioner of Banks appointed pursuant to H. B. 351, enacted by the 1959 General Assembly, should take an oath of office. 28 May 1959 Banks; Establishment of Branch Bank; Criteria of Commissioner of Banks; Assurance of Solvency of Branch The Commissioner of Banks is not authorized to permit the establishment of a branch bank unless it is demonstrated to the Commissioner's satisfac- 14 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. tion that the branch will be self-supporting in a reasonable period of time and a period of three years is not too long if the Commissioner is of the opinion that a three-year period would reasonably be necessary in order for a new branch to become self-supporting. 2 July 1958 Banks; Examination Fees; Authority to Reduce Fees Section 53-122 of the General Statutes contains certain provisions for the reduction of bank examination fees by the Commissioner of Banks. A mandatory reduction is possible only when a surplus exists in an amount exceeding the estimated cost of operating the office of Commis-sioner of Banks for the ensuing fiscal year. A permissive reduction of fees may be made only if the estimated fees will exceed the estimated operating costs for the ensuing fiscal year and such permissive reduction is subject to two further qualifications: (1) That such reduction shall not be in a percentage greater than fifty percent, and (2) such reduction shall not result in reducing the fees to be collected dur-ing the ensuing fiscal year below the estimated cost of operating the Bank-ing department for such fiscal year. 22 July 1958 Banks; Excise Tax; Inclusion of Bad Debts Charged Off Prior to 1957 and Recovered in 1957 for Excise Tax Banks are not permitted to exclude recoveries of bad debts which were written off in taxable years prior to 1957 when reporting net income for the purpose of the excise tax on banks. 22 July 1958 Banks; Excise Tax; Inclusion of Income from Stock in Federal Reserve Banks Banks must include the income from Federal Reserve Bank stock in net income for purposes of the excise tax on banks. 9 February 1959 Banks; Form of Share Certificate; Statement As to Par Value of Each Share When a bank reduces the par value of its common stock, it must issue new stock certificates because the statutes require thiat each share certificate shall state on its face the par value of each share, and the requirements of the statutes would not be met by sending out stickers to be pasted on the old certificates. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 15 30 December 1958 Banks; Saturday Closing; Change from Five-day Week back to Six-day Week Once the banks of a community have begun operation on a five-day week basis pursuant to the provisions of G. S. 53-77.2, no statutory procedure exists for reverting to a six-day w^eek. 15 July 1958 Banks; Small Loans Act; Exemptions; Determination of Exemption The North Carolina Small Loans Act exempts certain lending agencies from the provisions of the act. The duty rests upon the lender claiming exemption to establish his right to exemption. On this basis, when the Com-missioner of Banks has grounds for believing a particular lender claiming exemptions is not entitled to exemption, the Commissioner should call on that lender to furnish proof of his right to exemption. In most instances the best proof would be the books and records of the lending agency. If such lender refuses to permit Commissioner's agents to examine his books and records, Commissioner should then call upon such lender to complj^ with the Small Loans Act in the same manner as if he were not exempt and proceed on the same basis as Commissioner would in the case of any noncomplying lender subject to the provisions of the Act. 12 January 1959 Banks; Small Loans Act; Exemptions; Motor Vehicle Loan; Additional Collateral A lending agency which requires and accepts collateral in addition to motor vehicles on loans is subject to the provisions of the North Carolina Small Loans Act and does not have the exempt status of the lending agency which is engaged solely in the business of making loans of fifty dollars or more secured by motor vehicles. 20 April 1959 Banks; Teller's Window; Right to Receia^ Loan Payments Repayments of loans may be accepted by a bank at a teller's window located at a different place than the bank itself provided the establishment of such teller's window has been properly authorized. 16 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. BLUE LAWS 16 March 1959 Blue Laws; Sunday Blue Laws North Carolina does not have any statewide Sunday closing or "blue" laws, but many municipalities have adopted a variety of Sunday closing ordinances. BOATING 19 November 1959 Boating; Fees; Authority of Dept. of Conservation & Development TO Collect The Department of Conservation and Development has the authority to collect reasonable fees for the operation of boats on the waters of State-owned lakes. BUILDING CODES 3 December 1959 Building Codes; Proposed Swimming Pool Code; Authority of Building Code Council Under existing law, the State Building Code Council does not have authority to adopt a building code covering swimming pools. CEMETERIES 10 December 1958 Cemeteries; Authority of Burial Association Commissioner over Public Cemeteries; Perpetual Care; Private Land-owners Selling Grave Spaces By Giving Deed Article 7 of Chapter 65 of the General Statutes, as amended, regulating public cemeteries which advertise or have connection therewith a plan of perpetual care, does not apply to a land-owner who subdivides his land into 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 17 grave spaces and transfers these lots, or grave spaces, to purchasers by deed, it being understood that the land-owner w^ill not care for the grave spaces but that such duty of care and upkeep is upon the purchaser. 20 January 1960 Cemeteries; Expenditure of Administrator for Perpetual Care; Authorization An executor or administrator is without authority to expend funds for the perpetual care of a cemetery lot unless authorized to do so by the will of the testator or unless such expenditure is made for interment of the testator or intestate in a cemetery authorized by law to operate as a per-petual care cemetery or association. G. S. 28-120.1 CITIZENSHIP 14 September 1959 Citizenship; Loss upon Conviction of Felony; Effect of Plea of Nolo Contendere The plea of nolo contendere entered in a Federal case does not prevent such person from losing citizenship because loss of citizenship is an effect or consequence of the same criminal proceeding in which the plea was entered. CIVIL PROCEDURE 26 September 1958 Civil Procedure; Civil Action; Claim and Delivery; Jurisdiction When the sole or chief relief demanded is the recovery of personal prop-erty, the proper venue for a civil action is in the county where the property is situated, but it is possible for an ancillary remedy of claim and delivery to issue properly from the courts of a different county from that in which the property is situated. 28 June 1960 Civil Procedure; Claim and Delivery; Jurisdiction of Justice of the Peace; Concealed Property Upon compliance with the statutes with regard to jurisdiction and with regard to the authorities granted to the sheriff, a house wherein property is being concealed, providing the value of the property is not in excess of $50.00. 18 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. may be broken open and the sheriff of the county may obtain possession. Of course, the sheriff should use no more force than is reasonably necessary and should do no more damage to the property than is absolutely required by circumstances. 19 November 1959 Civil Procedure; Costs; Sheriff's Commissions Upon Execution In serving execution on a civil judgment, the sheriff should add his com-missions to the amount of the execution and not deduct them from the face amount of the execution. 1 March 1960 Civil Procedure; Courts; Service of Summons; Leaving Summons with Defendant's Wife Insufficient Personal service in a civil action cannot be obtained by delivering the summons to the defendant's wife. The statute contemplates delivery to the defendant in person. 1 June 1959 i Civil Procedure; Enforcement of Undertaking to Stay Execution Where Appeal from Justice of Peace is Abandoned and Principal Judgment Debtor is Bankrupt Wherein undertaking to stay execution has been given on appeal from a justice of the peace, and the appeal is abandoned, and the principal judg-ment debtor is thereafter declared to be in bankruptcy, sureties on the undertaking would continue to be liable on their bond inasmuch as such liability has become fixed at the time the appeal was abandoned and prior to the time when the principal judgment debtor became bankrupt. 24 July 1958 Civil Procedure; Inquisition of Lunacy Suit In Forma Pauperis A special proceeding or a petition for the inquisition of lunacy is one of those proceedings in which the petitioner may file his or her petition in forma pauperis. 18 January 1960 Civil Procedure; Motions; Notice; Motions to Make New Parties Notice of a motion to make an additional party defendant in civil actions under G. S. 1-240 should be given to the plaintiff. 35 J BIENNIAL REPORT OF THE ATTORNEY GENERAL 19 30 July 1958 Civil Procedure; Service of Process; Authority of Constable to Serve Process Directed to Sheriff Process vs^hich is directed to the sheriff only, and not to the "sheriff or other lawful officer" cannot be served by a constable. 8 July 1959 CrviL Procedure; Service of Summons G. S. 1-94 provides that the officer to whom a summons is addressed must note on it the date of its delivery to him and serve it by delivering a copy to each of the defendants. Service by delivering a copy to the husband or wife of the defendant is not sufficient. HARRINGTON v. RICE, 245 N. C. 640; FIRST NATIONAL BANK OF CHARLOTTE v. WILSON, 80 N. C. 200. An exception is made in the case of service of process in summary ejectment proceedings. G. S. 42-29 provides that service of such process may be made by leaving a copy at the defendant's usual or last place of residence, with some adult person, or, if the defendant has no usual place of residence in the county and cannot be found therein, the summons may be served by fixing a copy on some conspicuous part of the premises claimed. 30 May 1960 Civil Procedure; Sheriff's Fees in Suits Instituted in Forma Pauperis When a suit is instituted in forma pauperis, sheriff, whether within or without the county when properly directed, must serve subpoenas for wit-nesses without first obtaining his fees. COLLEGES 12 November 1958 Colleges; A & T College; Scholarships; Trustees Without Authority to Remit Tuition and Fees as Scholarship The President of A & T College in Greensboro cannot remit tuition and fees as scholarships, and the Board of Trustees cannot authorize the grant-ing of such awards. ----'•'-''- ' -''- .-'' ''-- '''-'--' 24 November 1958 Colleges; AppROPKiATiaNS . for Capital Improvements, State Institu-tions; Agencies AND Departments ; Plan of Organization and Operation for Community Colleges, Construction of Statutes Passed at the Same 20 biennial report of the attorney general [vol. Session of the General Assembly and in pari materia; Objects for WHICH Funds Granted in Aid to Community Colleges may be Expended There is no conflict between Sec. 5 of Chapter 1341 of the Session Laws of 1957, which appropriates funds for the construction and equipping of new classroom buildings, and subsection (b) of Sec. 7 of Chapter 1098 of the Session Laws of 1957, which gives in detail the specific kinds of buildings for which the appropriations may be used when granted in aid of community col-leges; statutes are to be construed in pari materia when they relate to the same subject matter, even though they are different statutes and ratified on different days of the same session of the General Assembly. The actual intent, history and spirit of the two acts passed at the same session should be used in giving effect to the proper interpretation; when the two acts are harmonized and construed together, as they should be, there are no conflicts in these two acts. COMMERCIAL FISHERIES 23 January 1959 Commercial Fisheries; Oysters; Privately-Owned Beds; State Grants An oyster bed privately owned by virtue of a State grant is subject to reasonable rules and regulations promulgated by the State Fisheries Com-mission. A rule or regulation pertaining to the dredging of oysters in the New River would apply to privately-owned beds as well as any other part of the river bed. CONSTITUTION 4 February 1959 Constitution; Amendment of Constitution; Submission of Revised Con-stitution in its Entirety; Time of Election Thereon The General Assembly may submit to a vote of the people a complete re-vised Constitution in lieu of separate amendments to the existing Constitu-tion. The General Assembly may make provision for submitting proposed constitutional amendments to the voters of the whole state at a general election other than the regular biennial election for county officals but in any event such question must be submitted at "the next general election." 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 21 CONTRACTORS 29 July 1958 contractors; electrical contractors; exemptions; person doing Work on Own Property A person who does electrical work only on his own property, whether rental or otherwise, is not required to be licensed under the State law relating to the licensing of electrical contractors. CONTRACTS 23 December 1958 Contracts; Public Bidding; Effect of Fair Trade Act The provisions of the Fair Trade Act do not apply to the State or politi-cal subdivisions of the State in making purchases. CORPORATIONS 10 July 1959 Corporations; Articles of Incorporation; Duty of Secretary of State The Secretary of State must determine whether the articles of incorpora-tion are regular in content and in compliance with the law. In those instances where the articles do not contain the proper addresses of the registered office, the incorporators or directors and it is obvious that this requirement could have been complied with, the Secretary would be justified in refusing to certify the articles. Those offering the articles should be notified of the irregularity and given the opportunity to furnish the omission or otherwise explain the same. 12 February 1960 Corporations; Capital Stock; Public Policy While a corporate charter may grant preference as between classes of stock as to payment of dividends or distribution on liquidation, as a matter of public policy, the charter may not entirely deny the right to dividends and to distribution on liquidation. 22 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL, 6 January 1959 Corporations; Dissolution; Failure to Commence Business A corporation which has not commenced business or received payment on any subscriptions to its shares must comply with the provisions of G. S. 55-119 relative to publication of notice of dissolution. 12 January 1959 Corporations; Electric Membership Corporations; Foreign Domesti-cated Corporations; Dissolution; Distribution of Assets The provisions of G. S. 117-24, stating that, upon dissolution of an electric membership corporation and after payment of all its debts, remain-ing assets become the property of the State, apply to the dissolution of foreign electric membership corporations domesticated in this State having assets in this State. 13 January 1959 Corporations, Foreign; Nonprofit Corporation; Domestication; Exemptions A foreign nonprofit corporation is not required to domesticate in this State when its sole activity in this State consists of employing one inspec-tor to inspect for safety purposes the loading of dangerous cargoes when all cargoes inspected are loaded for the purpose of shipment in interstate or foreign commerce. 14 May 1959 Corporations; Nonprofit Corporations; Domestication; Conducting Affairs A foreign nonprofit corporation may lease lands in North Carolina with-out being required to domesticate in this State. If the corporation does more than execute the lease, however, it would be required to domesticate. COUNTIES 10 July 1958 Counties; ABC Boards; ABC Profits; Hospitals; Nonprofit Hospitals; Use of ABC Funds In the absence of a local statute providing otherwise, a board of county commissioners may expend county ABC store profits to make permanent improvements in connection with a nonprofit charitable hospital operated in the county. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 23 3 June 1960 Counties; Appropriation of Funds from Tax Sources for National Guard Armory Construction Counties of the State are authorized to appropriate funds from tax sources for National Guard Armory construction. 5 December 1958 Counties; Capital Reserve Fund Both the county and municipal Capital Reserve Acts of 1943 expired by limitation on July 10, 1947. G. S. 153-142.21 and G. S. 160-444. Chapter 863, Session Laws of 1957, now codified as Article 35, Chapter 160 of the General Statutes, authorizes the creation of a Capital Reserve Fund by municipalities for certain specific purposes. There is no similar act for counties. 8 February 1960 Counties; Construction op Water and Sewer Lines; Part of Water and Sewer Line Running Through Another County; Municipal Corporations; Construction of Fire Protection Facility Outside of City Limits A county has the right to spend surplus or nontax funds to extend both water and sewer lines from the corporate limits of a municipality to a community or industry located in the county. A municipality has a right within the permissible distances authorized by G. S. 160-238 to provide, install and maintain water mains, pipes, hydrants, buildings and equipment for the purpose of fire protection for the sole use of a community or industry. 10 August 1959 Counties; County Agents; Expenses of Attending Conventions The expenditure of funds for county farm and home demonstration agents' activities is for a public purpose and attendance at conventions of such agents is sufficiently related to the work of such office as also to be regarded as for a public purpose. Therefore, nontax funds could properly be used to defray reasonable expenses of such officials in attending State or National conventions. 29 April 1959 Counties; County Boundaries; How Determined The procedure for settling the question of disputed county boundaries is set out in Section 153-11 of the General Statutes. 24 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 14 July 1958 Counties; County Depositories; Ineligibility of Building and Loan Association Under the provisions of Section 153-135 of the General Statutes, a build-ing and loan association may not be designated as an official depository for daily deposits of county funds. 24 July 1958 Counties; County Fire Districts; Purchase of Radio Equipment When a fire district has been properly organized in a county, radio equipment may be purchased in the same manner as other equipment, if, under all the circumstances, it is deemed reasonably necessary in operating an efficient fire department. 13 July 1959 Counties; County Superintendent op Public Welfare; Merit System Law; Salary of County Superintendent After a county welfare board has fixed the salary of the county super-intendent of public welfare in accordance with the Merit System compen-sation plan, a levy of taxes for the special purpose of providing funds to pay such salary is authorized and directed by statute. 25 April 1960 Counties; County Surveyors; Appointed by Board op County Commissioners Except for a small number of counties listed in G. S. 154-3, a county surveyor is not elected in each county. Instead, the Board of County Com-missioners has discretionary authority to appoint a surveyor. 6 April 1959 Counties; Drainage Districts; Loan to District Authorized; Gift to District not Authorized There is no general authority for a Board of County Commissioners to make a gift of funds to be used in the course of creating or establishing a drainage district. 7 January 1960 Counties; Electrical Ordinances; County Electrical Inspectors A county does not have legislative powers comparable to those bestowed upon cities and towns, and it is doubtful that a county, under authority 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 25 of G. S. 143-138 (e), may adopt piecemeal building regulations (i.e., elec-trical code) which would have the effect of superseding or suspending the operation of the North Carolina State Building Code in that "particular political subdivision", and such ordinances, if enacted, would be ineffective as no penalty for violation of same is provided by a statute similar to G. S. 14-4 declaring it to be a misdemeanor and prescribing punishment for violation of an ordinance of a city or town. 14 May 1959 Counties; Funds Expended for Care of Indigents; Reimbursement TO the County Poor Fund Any money received by a county as reimbursement for monies expended in the care of indigent persons should be returned to the county's poor fund, the source of the original expenditure. 26 February 1959 Counties; Municipalities; Hospital Aid; Loans and Gifts to and From Counties and Cities G. S. 131-126.26 authorizes a county to lend money to a city for hospital purposes, however, this statutory right to lend and borrow is subject to certain constitutional limitations. The county could not lend ad valorem tax revenues except to the extent that they represented available proceeds from a duly authorized tax levy for general hospital purposes. The city or town, in turn, could borrow only within the limits of the constitutional provision which authorizes borrowing without a vote of the people only to the extent of two-thirds of the amount by which its outstanding indebt-edness was reduced the last preceding fiscal year. 13 May 1959 Counties; Municipalities; Local Development; Industrial Development; Expenditure of Funds A county or municipality is without authority to expend funds to attract industry unless it acts pursuant to Chapter 158 of the General Statutes or unless it has local enabling legislation. 18 May 1959 Counties; Municipalities; Municipal Building; Municipal Fire and Jail Departments; Right of County to assist Municipality There is no general statutory authority which would permit a county to assist a city in constructing jail facilities. 26 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 16 December 1959 Counties; Municipalities; Sewer and Water Lines; Construction of V/ATER AND SEWER LINES OUTSIDE CORPORATE LIMITS; EXTENSION OF Sewer and Water Lines G. S. 153-9 (46) authorizes a county to construct and operate water and sewer systems. G. S. 160-255 and G. S. 160-256 authorize municipalities, within limits, to furnish water and sewer service outside the city limits. Nontax funds and surplus funds may be used for these purposes. There is no legal objection to a county and city doing jointly what each is authorized to do separately with respect to water and sewer service outside city limits. 2 May 1960 Counties; Public Administrator; Number of Only one public administrator may be appointed under G. S. 28-17 for each county. 30 June 1960 Counties; Purchase of Equipment G. S. 153-2.1 authorizes continuing contracts but this does not include installment contracts. 28 March 1960 Counties; Sale of Property By Board of Education County board of education may not transfer to the North Carolina De-partment of Motor Vehicles a parcel of land without specific legislative authority or complying with G. S. 115-126. 21 March 1960 Counties; Sale of Surplus Real Property at Private Sale; Authority of Rowan County to Warrant Conveyances Subject to the limitations stated in Vaughn v. Commissioners, 118 N. C. 636 and Southport v. Stayiley, 125 N. C. i6i, it would appear that the county commissioners of Rowan County are empowered to sell property described in deed submitted to an individual or corporation upon such consideration as may in their opinion be in the best interest of the inhabitants of the county and at public or private sale. Insofar as the covenants contained in the deed are concerned. Rowan County is empowered by G. S. 160-61.1 to execute a warranty deed. 17 August 1959 Counties; Sewer Systems; Extension of Municipal Line Outside Limits of Municipality Under certain circumstances a county has authority to construct sewer lines outside the limits of municipalities pursuant to the authority granted in G. S. 153-9 (46) or G. S. 153-11.2. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 27 7 May 1959 Counties; Special Levy; Levy Discontinued; Use of Surplus When the purpose for which a tax levy has been made have been ful-filled and the levy has been discontinued, the remaining surplus from the levy may be placed in the county general fund and expended for any county public purpose. 19 January 1960 Counties; Vacancies on County Board of Elections; How Filled Whenever a vacancy occurs in the membership of a county board of elections, the State chairman of the political party of the vacated member shall have the right to recommend tw^o electors for such office, and it shall be the duty of the State Board of Elections or the chairman of the State Board of Elections to fill the vacancy from the names thus recommended. 15 February 1960 Counties; Waiver of Governmental Immunity; Tort Liability; Extent OF Waiver by Purchaser of Liability Insurance Under the provisions of G. S. 153-9, Subsection 44, a county's waiver of its governmental immunity is limited to the liability insurance coverage purchased, and the excess or other liability beyond limits is not waived and the county's immunity, if any, is not disturbed as to the excess. COUNTY COMMISSIONERS 31 December 1959 County Commissioners; Electrical Ordinances; County Electrical Inspectors County commissioners have the discretionary power under G. S. 160-122 to appoint electrical inspectors, but they do not have authority to enact ordinances creating standards to control electrical installations in buildings located in the county. Under G. S. 143-138 (b), the governing body of the county is authorized to adopt a resolution making the provisions of the North Carolina State Building Code applicable to buildings located in the county, which are otherwise exempt from the Building Code. 5 February 1960 County Commissioners; Employment of Counsel A county has authority to employ such legal counsel as the Board of Commissioners deems reasonably necessary and desirable for representing the Board in official county litigation. 28 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. 13 August 1959 County Commissioners; Expenditure of County Funds Outside of County for College Sewer Lines The Board of Commissioners of a county has no authority to expend funds, even funds derived from sources other than tax levies, for a college sewer line located outside the boundaries of the county. 17 June 1960 County Commissioners; Expenditures; Expenses of Officials Attending Conferences and Conventions The governing board of a municipality or county may pay the expenses of its officials in attending conventions and conferences. 9 October 1958 County Commissioners; Expenditure of Public Funds; Public Purpose; Building Gasoline Service Station for Rental Purposes A county does not have legal authority to expend public funds to con-struct a gasoline filling station on a vacant lot which the county owns in order to increase its rental value. 16 July 1958 County Commissioners ; Fire Districts ; Tax Levy on Petition WITHOUT Vote of People When a statute imposes a mandatory duty upon an official or an official board, the official or the board should perform such mandatory duty unless and until the statute in question is declared invalid by a court of competent jurisdiction. 9 October 1958 County Commissioners; Local Development; Donations to Encourage Location of Industry In the absence of local enabling legislation, a county can expend funds to attract industry only in accordance with the provisions of Chapter 158 of the General Statutes entitled "LOCAL DEVELOPMENT." 22 June 1959 County Commissioners; Poor Fund; County Department of Public Welfare; County Appropriations Through Poor Fund for School Lunches; Indigent Pupils County Commissioners are authorized to appropriate public funds for the purpose of providing assistance to indigent children for a school lunch program and to administer and to supervise the plan through county de-partments of public welfare. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 29 6 October 1959 County Commissioners; Powers; Construction of Water and Sewer Lines by County Authorities; Statutory Construction of G. S. 153-9(46) AND G. S. 153-11.2 G. S. 153-9(46) clearly contemplates and authorizes the operation of water and sewer systems constructed under its provisions in whatever man-ner the responsible county commissioners find most business-like, expedient, and satisfactory. This broad grant of discretion m operation or disposal of the systems would include an area, whereby the systems would be leased to a municipal corporation to which they are connected, in consideration of an annual rental, although nominal, and an agreement by the municipal cor-poration to maintain and operate the lines at no expense to the county. 29 January 1960 County Commissioners; Right of Chairman to Vote In the absence of a local law providing otherwise, the chairman of the Board of County Commissioners has the same right to vote at meetings of the Board as any other member of the Board. 26 June 1959 County Commissioners; Sheriff; purchase of Automobile for Sheriff's Department A county may not expend funds to purchase an automobile for the Sheriff's department or to purchase uniforms for the sheriff and his deputies without statutory authorization. 28 January 1960 County Commissioners; Zoning Regulations; No Penalties or Criminal Punishment Provided Under Chapter 1006, 1959 Session Laws, boards of county commissioners are given power to enact county zoning regulations, but they do not have authority to impose penalties or prescribe punishment for the violation of such zoning regulations, and it is not a violation of State law to violate a county zoning regulation adopted under the authority of the foregoing Act. 30 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. COURTS 1 October 1958 Courts; Appeal to Superior Court From Recorder's Court When Plea OF Guilty is Entered G. S. 15-177.1 provides that in all cases of appeal to the Superior Court in a criminal action from a justice of the peace or other inferior court, the defendant shall be entitled to a trial de novo without prejudice from the former proceedings of the court below regardless of the plea entered or the judgment pronounced thereon. In STATE v CANADY, 246 NC 613 it is held that where suspended sen-tence is entered and the defendant complies with certain of the terms of suspension, he waives his right to appeal. The distinction between the foregoing situations seems to be that if the defendant complies with some of the terms of the judgment, he thereby loses his right to appeal but merely by pleading guilty in an inferior court the defendant does not lose his right of appeal guaranteed to him by G. S. 15-177.1. 3 February 1959 Courts; Clerks of Court; Entry of Judgment in Minute Docket; Cross Reference to Judgment Docket Not Sufficient Since the Minute Docket is the only complete record of proceedings had in court during term, any judgments entered should be set out therein verbatim and a mere cross reference to the summarized judgment as the same may appear in the Judgment Docket does not constitute compliance with the provisions of G. S. 2-42(8). 4 March 1959 Courts; Criminal Procedure; Appeals from Justices of the Peace in a County Having a County Recorder's Court It is the duty of the clerk, under G. S. 7-243, to docket appeals from a justice of the peace in criminal cases in the recorders court. While G. S. 7--243 appears to be in conflict with Articles IV, § 27 of the North Carolina Constitution which gives a right of appeal from a justice of the peace to the Superior Court, it is "the law" unless repealed by the Legislature or declared unconstitutional. 19 August 1959 Courts; Domestic Relations; Appeal to the Superior Court in Pro-ceedings Involving Delinquency, Neglect or Dependency of Children G. S. 110-40 and not G. S. 7-107 is applicable to an appeal from a Domestic Relations Court to the Superior Court in the matter involving delinquency, neglect or dependency of a child coming within the jurisdiction 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 31 of a Juvenile Court. G. S. 7-107 applies only to appeals in criminal cases, bastardy cases and cases involving the custody of juveniles under the pro-visions of G. S. 7-103 (c). Juvenile and Domestic "Relations Courts do not deal vs^ith young offenders as criminals but rather as wards of the state. 25 March 1959 Courts; Domestic Relations Courts; Countywide court; Authority of County Commissioners to Establish A county-wide Domestic Relations Court may be established under Article 13 of Chapter 7 of the General Statutes by proper resolution by the County Commissioners, and the joinder of governing bodies of included incorporated municipalities is not required. 29 December 1959 Courts; Domestic Relations Courts; Disposition of Child Born of Female Prisoner; Responsibility of the County Domestic Relations Court G. S. 148-47 does not make it mandatory for the female prisoner and her child to appear in the Juvenile or Domestic Relations Court for a formal hearing in order for the court to enter a proper custody order. Under this statute, a female prisoner does, however, have the legal right to appear in court for a hearing regarding the custody of her child and after serving the prisoner with proper notice the court may direct that the female pris-oner and her child be brought into court for a formal hearing. No necessity arises for a proceeding in the Juvenile or Domestic Relations Court in cases where the female prisoner releases her child for adoption and the Superintendent of Public Welfare would be the proper person to determine if a relative is a suitable person with whom such child can be placed. 14 August 1959 Courts; Justices of the Peace; Bonds; Bail Bonds; Criminal Pro-cedure; No Right of JP to Require Cash Bond In connection with bail bonds a justice of the peace has authority to fix the amount of the bond but he is without authority to require the defendant to furnish a cash bond. Whether the bond shall be a cash bond or not rests with the officer taking the bond. 21 January 1959 Courts; Justices of the Peace; Bond Required of Justice of the Peace; Personal or Corporate With respect to those counties wherein justices of the peace must furnish bond pursuant to Chapter 1380 of the Session Laws of .1957, the statute provides that such bond shall be either corporate or personal, with good and sufficient surety, approved by the Clerk of the Superior Court. 32 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 15 August 1958 Courts; Juvenile Court; Abandonment Proceeding; Service by Publication In a proceeding before the Clerk of Superior Court, sitting as a juvenile court to determine abandonment of child by a parent within the meaning of Chapter 48 of the General Statutes relating to adoptions, service by publication may be had under the authority of G. S. 110-28, a part of the Juvenile Court Act, and the latter publication statute may be relied upon even though the provisions of G. S. 1-98.1 and 1-98.2 do not include service by publication in such matters in the juvenile court. 22 April 1960 Courts ; Municipal-County Recorder's Court ; County to Pay Fees Upon Acquittal Under the general law, G. S. 6-36, the county must pay the clerks, sheriffs, etc., one-half their lawful fees when the defendant is acquitted or convicted and unable to pay the costs or a nolle prosequi is entered, or judgment ar-rested. Where there is no provision in the special legislation establishing a county recorder's court, providing for the payment of fees when the defen-dant is acquitted, etc., the general law prevails and the county must comply with G. S. 6-36 and pay one-half the fees as therein provided. As for G. S. 6-64, the County is not liable for costs when the action in which a justice of the peace has final jurisdiction is commenced or tried in a court of a justice of the peace, mayor or in a county recorder's court. 22 April 1960 Courts; Municipal-County Recorder's Court; Deputy and Assistant Clerks Issuing Warrants An assistant clerk of a Municipal-County Recorder's Court, established tmder G. S. 7-240 and properly elected as provided for under G. S. 7-200.1, may issue warrants as provided in G. S. 7-198 and G. S. 7-200.1, 8 February 1960 Courts; Recorder's Courts; Establishment of Municipal Recorder's Court The procedure followed in establishing a Recorder's Court pursuant to Article 24 of Chapter 7 of the General Statutes is for the town governing body to adopt an appropriate resolution or ordinance declaring the estab-lishment of the court. 23 January 1959 Courts; Superior Courts; Procedure; Appeal from Demurrer Supreme Court Rule of Practice 4(a) provides that the Supreme Court will not entertain an appeal from an order overruling a demurrer except 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 33 when the demurrer is interposed as a matter of right for misjoinder of parties and causes of action. Petition for writ of certiorari is allowed when such order overruling a demurrer will prejudicially affect a substantive right. CREDIT UNIONS 21 September 1959 Credit Unions; Authority of Board of Directors of State Employees' Credit Union to do or not to do the Following things: (a) to Hire AND Fire the Treasurer; (b) to Hire and Fire the Regular Employees OF THE Credit Union; (c) to Fix the Salary of the Treasurer; (d) to Fix the Salary of the Other Employees of the Credit Union; (e) to Use the Funds of the Credit Union to Pay the Cost of a Detailed Audit of the Books and Records of the Credit Union; (f) to Control AND Designate the Custodian and Place of Custody of the Records of THE Minutes of the Board of Directors of the Credit Union The Board of Directors of a Credit Union has the power to elect or employ a Treasurer and to make him the General Manager of the Credit Union; the Board of Directors of a Credit Union does not have the authority to discharge the Treasurer of the Credit Union who is an officer and is elected for a fixed term, but the Supervisory Committee by unanimous vote can suspend the Treasurer of the Credit Union and call a meeting of the members to act upon the suspension, and the members can either reinstate the Treasurer or discharge him according to the provisions of the Bylaws of the Credit Union; the members of the State Employees' Credit Union under its Bylaws in a special meeting and by a 2/3's vote can discharge the Treasurer of such Credit Union; the primary responsibility of hiring and discharging the regular employees of a Credit Union rests upon the Treasurer, who is the General Manager, but the Board of Directors can intervene and hire and discharge regular employees if it so desires; pur-suant to a Bylaw of the State Employees' Credit Union authority has been vested in the Board of Directors to fix the salary of the Treasurer; the Board of Directors of the State Employees' Credit Union has the power to fix the salaries of the regular employees of the Credit Union ; the Super-visory Committee can order an independent and outside audit of the financial record and affairs of the Credit Union, and it would be the duty of the Board of Directors to pay the costs of such audit from uncommitted funds of the Credit Union; the Board of Directors of a Credit Union has the power to designate the custody and the custodian of the records of the minutes of the Board of Directors of the Credit Union. 34 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. CRIMINAL LAW 26 January 1959 Criminal Law; Abduction or elopement with virtuous married woman; Jurisdiction in probable cause hearing; Proper \'enue in probable cause hearing The felony of an abduction or elopement with a virtuous married woman defined in G. S. 14-43, which may involve as essential elements the unlawful scheming of the accused to achieve the voluntary desertion by the wife of her husband for the purpose of going away and cohabiting with the accused, by its very nature may involve action across artificial govern-mental lines of counties or states. The county of origin may be proper venue for the criminal proceeding. 22 June 1959 Criminal Law; Adultery; Wife Signing Warrant Charging Husband's Paramour None of the provisions of G. S. 8-57 would preclude or bar a wife from procuring the issuance of a warrant charging her husband's paramour with fornication and adultery. 21 December 1959 Criminal Law; Arrest; Jurisdiction of City Policeman to Arrest Outside Corporate Limits of a Municipality A city policeman may arrest a person only within the corporate limits of the municipality which he serves. A city policeman could not, in close or hot pursuit, follow and arrest an offender outside the corporate limits of the municipality which he serves. 28 August 1959 Criminal Law; Attempted Suicide An attempt to commit suicide is a common-law misdemeanor in this State. 9 April 1959 Criminal Law; Breaking and Entering—Bear "Cage" Game reduced to possession is property within the meaning of G. S. 14-54. Whether or not a "cage" comes within said statute is a matter of fact. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 35 29 April 1959 Criminal Law; Breaking, Entering and Larceny; Vending Machines The statute against breaking and entering, G. S. 14-54, applies only to breaking and entering the buildings set out in the statute. It would not apply to breaking and entering a vending machine located outside a building. 19 August 1958 Criminal Law; Burglary; Breaking into or Entering Houses, Shops, Warehouses and Other Buildings otherwise than Burglariously; Larceny of Property of the Value of not more than $100.00; G. S. 14-54 AND G. S. 14-72 TO BE Construed together G. S. 14-54, dealing with breaking into or entering certain types of houses or buildings otherwise than burglariously, is to be construed with G. S. 14-72, which divides larceny into two degrees according to whether the property is of the value of not more than $100.00; where a building is broken into or entered and property less than $100.00 in value is stolen or taken away, the view that the defendant might be guilty only of a misde-meanor is required to be submitted to the jury; however, it is possible to convict the defendant of a felony even though the property taken is less than $100.00 in value if the facts and circumstances show a felonious intent irrespective of the value of the property taken. 15 July 1959 Criminal Law; Carrying Weapons Concealed Under the laws of this State, a person may not carry a pistol concealed about his person. Carrying a pistol in the glove compartment of an auto-mobile would be violative of the laws of this State. If the pistol is carried openly and in plain view of any person who might look into the auto-mobile, there would be no violation of the laws of this State. There is no provision under the laws of this State for a person to secure a permit to carry a pistol concealed about his person. 28 August 1959 Criminal Law; Concealed Weapons; Carrying in Automobile G. S. 14-269 Having rifles, pistols or other deadly weapons located in the trunk of a car out of reach of any person in the car probably would not be a violation of G. S. 14-269, which makes it a misdemeanor for anyone, except when on his own premises, to carry any deadly weapon concealed about his person. 36 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 28 May 1959 Criminal Law; Criminal Procedure; Double Jeopardy; Conviction of Assault and Battery; Subsequent Death of Victim; Prosecution for Homicide Proper When a person is convicted of assault for shooting a person and the per-son thereafter dies w^ithin one year after the shooting occurred, prosecution for murder or manslaughter is not barred by the assault conviction. 27 April 1959 Criminal Law; Criminal Procedure; Physical Evidence of Crime; Custody of Evidence If there is any reason at all to suppose that a gunshot wound resulted from the commission of a criminal offense, it is a well settled principle of law that the bullet should be turned over to the appropriate law enforc-ing officers. "Property held as evidence in a criminal case may not be taken from the custody of the court without its consent nor as long as it may be needed as evidence. . . ." 26 August 1959 Criminal Law ; Evidence ; Abandonment and Nonsupport ; Investigation BY Order of the Judge There is no authority for the judge of a recorder's court to institute an investigation, upon a continuance of the case, for the purpose of secur-ing additional evidence regarding the possible commission by the defendant of the offense of wilfully abandoning and failing to provide adequate support for his wife and minor children. 16 March 1960 Criminal Law ; Evidence ; Admission Uncorroborated by Other Evidence When an operator of a motor vehicle is charged with operating under the influence of intoxicating liquor or narcotic drugs in violation of G. S. 20-138 and the only evidence of driving the motor vehicle is the statement of the defendant, such evidence must be further corroborated by evidence relating to and tending to establish the crime. 23 December 1959 Criminal Law; Evidence; Motor Vehicles; Official Driving Record If one of the elements of the motor vehicle law violation is the status of the defendant's driver's license, to wit: revoked or suspended, the introduc-tion into evidence of the official records of the status of his driver's license may be limited, if so requested, to the certification and seal, plus the fact that his license was in a state of revocation or suspension. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 37 22 June 1959 Criminal Law; Fishing; County Residence Under the provisions of G. S. 113-146 the right of a person to fish with natural bait in a county without having a county license is based upon living in such county for a period of six months immediately preceding the time of fishing. If such residence was interrupted by living somewhere else for two months, such person would not be entitled to fish without a license. 24 June 1959 Criminal Law; Fortune Telling; Praying With Others One who prays with her clients relative to their present problems and burdens, whether it be prayers for healing or for relief of other problems is not guilty of violating G. S. 14-401.5 which provides in part as follows: "It shall be unlawful for any person to practice the arts of phrenology, palmistry, clairvoyance, fortune telling and other crafts of a similar kind in the counties named herein." 7 August 1958 Criminal Law; Motor Vehicles; Former Jeopardy Trial of a defendant on a charge of driving a motor vehicle upon the highways of the State while his operator's or chauffeur's license is sus-pended or revoked does not place such defendant in double jeopardy where the defendant has already entered a plea of guilty in a former trial of operating a motor vehicle on the highways of the State on the same occasion without first being licensed as a chauffeur or operator, because the two charges are not the same, in fact and in law. 12 May 1960 Criminal Law; Motor Vehicles; Operating Motor Vehicle While License Suspended or Revoked; Elements of the Offense In order to warrant conviction of criminal offense of operating a motor vehicle while license suspended or revoked under the provisions of G. S. 20-28 (a), all the essential elements of the crime must be proved by com-petent evidence and the burden is on the State to establish the defendant's guilt beyond a reasonable doubt. Under the provisions of G. S. 20-28 (a) the essential elements of operating a motor vehicle while license is suspended or revoked are: (1) Operation of a motor vehicle after license suspended or revoked other than permanently; (2) Upon the highways of the State; (3) While such license is still suspended or revoked. 38 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 4 September 1959 Criminal Law; Private Use of Publicly-owned Vehicle; Parking Vehicles at Home Overnight; G. S. 14-247 and G. S. 14-252 School officials who drive school-owned automobiles to and from their homes for school board purposes only and not for any private purpose would not be guilty of violating G. S. 14-247 and G. S. 14-252 prohibiting any public employee from using publicly-owned vehicles for a private purpose. 16 October 1958 Criminal Law; Public Drunkenness; Local Laws Fixing Punishment Under G, S. 14-335, any person found drunk or intoxicated on the public highways of this State shall be guilty of a misdemeanor, and in Craven County shall be punished as set forth in Subsection 12 of said statute. 18 September 1959 Criminal Law; Punishment for assault when no deadly weapon is used but serious bodily damage done When a defendant is convicted of an assault resulting in serious bodily injury but without the use of a deadly weapon, the trial court is not limited in its punishment to a fine of $50.00 or imprisonment for thirty days. In-stead, the offense is a general misdemeanor. 19 November 1958 Criminal Law; Pyrotechnics; "Checker Balls" Pyrotechnics known as "checker balls" are not permitted to be sold, exhibited, or possessed in this State. 25 March 1960 Criminal Law; Pyrotechnics; Exhibition; Explosive Caps All forms of pyrotechnics are outlawed by a State-wide law in this State. There is a provision in this Act which permits the exhibition of pyrotechnics, under permit, when such pyrotechnics are exhibited by trained experts at public occasions such as fairs and the like. Explosive caps designed to be fired in toy cap pistols may be legally sold and possessed in certain counties of the State. 17 November 1958 Criminal Law; Pyrotechnics; Sparklers Pyrotechnics knows as "sparklers" are not permitted to be sold, exhibited, or possessed in this State. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 39 29 August 1958 Criminal Law; Rape; Statutes Relating to Deaf, Dumb and Blind Females There are no statutes relating to rape or sexual offenses which take any special account of a woman's condition with respect to feeblemindedness, blindness, or deafness. 14 July 1958 Criminal Law; Refusal of Customer to Pay Taxi Fares There is no general law regulating the payment of taxi fares. This is governed by municipal ordinances. 22 December 1958 Criminal Law; Sale of Bay rum G. S. 14-364.1 makes it unlawful to sell bay rum in this State except when sale is made to a pharmacy or drug store or when sale is made pur-suant to a physician's prescription or when sale is made to a licensed barber for use in performing barber shop services and not for resale. A number of counties are exempted from this section. 26 August 1959 Criminal Law; Sentence Suspended on Payment of Fine and Costs; Appeal A defendant has no right of appeal from a criminal conviction after complying with the judgment of the court even though notice of appeal is given before time for giving such notice has expired. State v. Canaday, 2Jt6 N. C. 613. 27 May 1959 Criminal Law ; Trespass Any person who goes onto property in possession of another and who remains after being asked to leave becomes a trespasser and is subject to prosecution under G. S. 14-134, nothing else appearing. 9 October 1959 Criminal Law; Warrants Issued For Misdemeanors Over Two Years Old Warrants issued for the commission of misdemeanors which are over two years old are barred by the statute of limitations under G. S. 15-1, and, in the absence of a public local statute giving specific authority, a Justice of the Peace has no right to issue warrants or other criminal process returnable before a Recorder's' Court. 40 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. CRIMINAL PROCEDURE 14 June 1960 Criminal Procedure; Amendment of Warrant to Charge Second or Subsequent Offense of Drunken Driving in Recorder's Court Before Trial Criminal warrants may be amended at any time before verdict in the Recorder's Court to charge a second or successive offense upon conviction of which a different or more severe punishment may be imposed. This office is aware of no limitation on how far back the courts may look for previous offenses in order to sustain a conviction of a second or successive commis-sion of the offense charged. G. S. 7-149, Rule 12. 14 December 1959 Criminal Procedure; Appearances in Motor Vehicle Cases Through Agent or Attorney; Schools; Fines and Forfeitures; Point System A waiver of appearance and plea in absentia plus an authorization by the defendant for the clerk to apply "bail bond" to fine and cost is not a valid conviction or bond forfeiture. Waiver of appearance in misdemeanors can be done by the defendant with the consent of the court sitting as such, through his counsel but not through some other agent. 1 July 1958 Criminal Procedure; Bail; Liability of Appearance Bond When Continuance After Judgment is Allowed Where the court finds defendant guilty in a criminal case, enters judg-ment and allows defendant ten days within which to pay fine and costs or to appeal and defendant fails to appear within ten days and answer the judgment of the court or appeal, defendant and surety are liable on the appearance bond given in the case, because the defendant has departed the court without leave. 6 January 1960 Criminal Procedure; Deputy Sheriffs; Professional Bondsmen A deputy sheriff of any of the counties listed under G. S. 15-107 who also serves as a professional bondsman would be guilty of violating G. S. 15-107. 8 April 1960 Criminal Procedure; Indictment for Breach of the Peace The general rule of the court has been that in order to charge a person with a common law crime of breach of the peace, there must be profane and vulgar language used in a public place whereby the public at large is 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 41 offended and annoyed. An argument between husband and wife, in their own home, even thought it might disturb a neighbor, does not warrant an indictment of the common law crime of breach of the peace. 6 March 1959 Criminal Procedure; Indictment; Murder; Specification as to Date In an indictment charging murder where the deceased died several days after he was fatally shot, it is well to set out full facts as to the shooting on one date and the death on the svibsequent date. 21 August 1958 Criminal Procedure; Indictment; Not Necessary for Solicitor to Sign It is not necessary that a solicitor sign a bill of indictment. See STATE V. SHEMWELL, 180 N. C. 718, and STATE v. DOUGHTIE, 238 N. C. 228. 30 November 1959 Criminal Procedure; Judgments; Suspended Sentence Courts may order a suspended sentence into effect and have commitment issued only during their sessions and not in vacation. 11 January 1960 Criminal Procedure; Jury Fee in Recorder's Court A defendant who requests trial by jury in a Recorder's Court is not re-quired to deposit the jury fee before trial. G. S. 6-5 and G. S. 7-287. 11 April 1960 Criminal Procedure; Misdemeanors of Less Degree Reckless driving is not a lesser degree of the crime of driving drunk nor is running a stop sign or following too closely less degrees of the crime of reckless driving. A defendant may be indicted under separate counts for violation of the statutes prohibiting driving drunk, reckless driving, etc., if they grow out of the same transaction, and the defendant may be found guilty of any one or all of these acts. 22 December 1959 Criminal Procedure; Motor Vehicles; Plea of Double Jeopardy; No Operator's License and Driving After License Suspended A defendant's plea of guilty to the charge of operating a motor vehicle without an operator's license will not support a plea of double jeopardy to a charge of driving after license has been revoked, both offenses occur-ring at the same time, because the two charges are not the same in fact 42 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. and law. STATE v. MIDGETT, 214 N. C. 107; STATE v. LIPPARD, 223 N. C. 167. 4 March 1960 Criminal Procedure; Police Officers Giving Citations, Accepting Money, and Waiving Appearance of Defendant A citation by a police officer does not institute a criminal proceeding and the issuance of a w^arrant is necessary. The defendant in person or through his attorney with the consent of the court may waive appearance in a misdemeanor. Neither the clerk of the court nor a police officer can waive the appearance of a defendant and enter a plea of guilty and pay the fine out of the money deposited for bail. 8 April 1960 Criminal Procedure; Public Drunkenness on the Highways Under G. S. 14-335, disorderliness need not be proven in order to convict one of being intoxicated in an automobile on the public highway. 24 August 1959 Criminal Procedure; Recorder's Courts; Justices of the Peace; Amendment of Warrants While a justice of the peace has the power to amend a warrant, he may not amend a warrant to strike the offense charged in the warrant and to insert another offense. When a defendant is bound over to a county record-er's court on a warrant, the recorder may try the defendant on the war-rant under which he was bound over or upon a new warrant issued by him and charging the defendant with the offense which he appears to have committed. 14 January 1959 Criminal Procedure; Searches and Seizures; Search Warrants; Execution of Search Warrant A peace officer, who is armed with a valid search warrant, may use such force as is reasonably necessary to break open a door of the premises to be searched, if admittance to the premises is denied. No demand is neces-sary prior to a breaking in of the doors unless some person is found in charge of the building to be searched. In such cases officers should make known their identification and state their business, and if they are not admitted at once, they have a right to forcibly break down the doors and enter the premises. Peace officers armed with a search warrant should either read the warrant to the person at the home, or whoever is present and ap-pears to be in possession, if the person will permit them to do so, or he may state the substance of the warrant. We have no statute which requires an officer to exhibit or reveal the search warrant at the time of the 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 43 search. An officer armed with a search warrant does not have to run the risk of permitting a person to destroy illegal whiskey or other articles in order to read or state the warrant, and he may be governed by the cir-cumstances. 30 January 1959 Criminal Procedure; Search and Seizure; Search Warrants; John Doe Warrants Our search warrant statutes require that some person be named as being in possession of the premises and to be arrested or seized if found with the property or articles seized under the search warrant; if the identity of the person is unknown it is not sufficient to use the term "John Doe" alone but the term "John Doe" should be accompanied with a fairly accurate physical description of such person relating to color of hair, eyes, weight, etc., and relating also to the person's whereabouts, and, if seen with a motor vehicle, the type of motor vehicle; in other words, any useful and relevant points that relate to description. 24 November 1959 Criminal Procedure; Search and Seizure; Search Warrant; Omission OF Jurat in Complaint The failure of an officer taking the affidavit to sign the jurat does not prevent the affidavit from being a sufficient basis for the issuance of a search warrant. 14 July 1959 Criminal Law; Search and Seizure; Search Warrants; Necessity of Search Warrant The General Assembly has not enacted any law which would permit a search of a person's home without a search warrant. 15 September 1959 Criminal Procedure; Separate Warrants For Speeding and Reckless Driving Arising Out of Same Act Under G. S. 15-152 a person may be charged with reckless driving and also speeding in one warrant under separate counts, and if there are two warrants growing out of the same transaction, the court will order them to be consolidated. 14 March 1960 Criminal Procedure; Statute of Limitations; Judgments; Bond Forfeitures The ten-year statute of limitations is applicable to a judgment absolute on an appearance bond. 44 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL, 11 April 1960 Criminal Procedure; Transfer of Case from Recorder's Court to Superior Court upon Request for Jury Trial When under separate legislation the solicitor of a recorder's court asks for a jury trial the jurisdiction of the matter is transferred to the Superior Court and the solicitor of the Superior Court should send a bill to the grand jury. 30 March 1960 Criminal Procedure; Transfer of Criminal Case by Recorder's Court FOR Lack of Jurisdiction When a Judge of the Recorder's Court finds that he has no jurisdiction over the crime charged in the warrant, he may transfer it to the court having the correct jurisdiction. The defendant then may appear in the court which has jurisdiction and move in abatement or for discharge, and as was held in STATE v. TURNER, 170 N. C. 701, if the court allows the motion, the court will usually issue a correct warrant or have it legally served at once. 14 July 1958 Criminal Procedure; Use of State Commitment Form No. 830 for County Jail The use of a State Prison commitment form is acceptable for commit-ment to the County Jail, with appropriate deletions and insertions, since the judgment itself controls. 11 January 1960 Criminal Procedure ; Violation of City Ordinance With Regard to Stop Light Where there is no general State law and defendant is indicted under city stop light ordinance, prosecuting attorney must introduce ordinance to establish crime. G. S. 20-169 and G. S. 14-4. 4 December 1959 Criminal Procedure ; Warrants ; Several Counts in One Warrant Separate warrants for several offenses which may be properly joined growing out of the same transaction is proper, but the better practice would be to issue one warrant with several counts, if the counts can be properly joined. G. S. 15-152 provides for the consolidation of several warrants charging offenses that can be properly joined for the purpose of trial. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 45 DETECTIVES 22 July 1959 Detectives ; Private Detectives ; Carrying Weapons ; Running Collection Agency; License Tax In order to engage in the business of being a private detective in this State, a person must pay to the Commissioner of Revenue, Raleigh, North Carolina, an annual license tax in the amount of $25.00. Private detectives are not permitted to engage in business of a collection agency. Private detectives are not permitted to go armed in a body. There is no provision for a private detective to secure a State or county license to carry a pistol. A private detective does not have the power of arrest, nor may such private detective carry a w^eapon concealed about his person. Any city in vv^hich one engages in business as a detective could also require the payment of a city license tax. 30 July 1959 Detectives; Private Detectives; Security Patrol Privately-owned and operated security patrol organizations formed for the purpose of guarding and protecting individuals and property, and patrolling the streets and highways of the State, and utilized by private individuals for maintaining law and order, would be engaging in an unlaw-ful practice in performing such functions, and the individuals performing such services would perhaps be violating G. S. 14-276 and G. S. 14-277, relating to the impersonation of peace officer. DIVORCE Divorce; Mexican Divorce 4 February 1960 A divorce obtained in Mexico, if legally and properly obtained under the laws of that Country, would be recognized as a valid divorce in this State. DOGS 18 December 1959 Dogs; Dog Wardens; appointment, duties and authorities; rabies control officers Dog wardens should not be designated rabies inspectors, since their duties and responsibilities under statute are supplemental to each other. Dog wardens are given power of arrest only as to violations pertaining to ownership and control of dogs. His duties do not include those granted specifically to sheriffs by statute even though the latter also relate to control of dogs. 46 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. DOUBLE OFFICE HOLDING 3 June 1959 Double Office Holding; Chief of Fire Department; Member of Board OF Town Commissioners; Commissioner of Public Trust Contracting FOR his Own Benefit The position of chief of a fire department of a municipality and that of membership on the board of commissioners of a municipality are both con-sidered 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. If a member of the board of town commissioners accepted the position as chief of the fire department and received a salary therefor, he would be guilty of violating G. S. 14-234 which prohibits a commissioner of public trust contracting for his own benefit. 14 November 1958 Double Office Holding; Chief of Police and Chief of Fire Department The office of chief of police and that of chief of a municipal fire depart-ment 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. 27 April 1960 Double Office Holding; City Attorney and Other Public Office The position of city attorney is a position of employment rather than a public office. 22 June 1959 Double Office Holding; City Councilman and Member of the Veterans Commission The office of membership on the State Veterans Commission is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold this position and at the same time hold another public office. 10 February 1959 Double Office Holding; City Manager and Membership on State Stream Sanitation Committee The office of membership on the State Stream Sanitation Committee, created by G. S. 143-213 and following, is considered a public office within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 47 In the case of GRIMES v. HOLMES, 207 N. C. 293, the Supreme Court of this State held that the office of city manager of a municipal corporation is a public office within the meaning of the section of the Constitution referred to above. 15 June 1959 Double Office Holding; Commissioner of the Eastern Carolina Regional Housing Authority; Member of the Board OF Certified Public Accountant Examiners The position of commissioner of the Eastern Carolina Regional Hovising Authority and the position of member of the Board of Certified Public Accountant Examiners are both public offices within the meaning of the constitutional provision prohibiting double office holding. 21 March 1960 Double Office Holding; Coroner; District Pathologist; County Medical Examiner A district pathologist and county medical examiner are both considered public offices within the meaning of Article XIV, Section 7 of the North Carolina Constitution and a person may not hold both of these offices at the same time. The county coroner may, however, be assigned the func-tions of county medical examiner and district pathologist and shall perform these functions as a part of his duties as coroner and will not be con-sidered as occupying an additional office within the meaning of Article XIV, Section 7 of the North Carolina Constitution. G. S. 130-196, 130-197. 25 August 1958 Double Office Holding; County ABC Officer and Deputy Sheriff A county ABC officer and a deputy sheriff are both public officers within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may not hold these offices at the same time. 13 May 1959 Double Office Holding; County Accountant; Chairman of School District Committee; Member of County Soil Conservation District All three of the offices 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 any combination of these offices at the same time. 48 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 22 December 1958 Double Office Holding; County Attorney and Prosecuting Attorney OF a Recorder's Court The position of county attorney is a position of employment rather than a public office, and one person may hold this position and at the same time legally serve as prosecuting attorney of a county recorder's court. 4 January 1960 Double Office Holding; County Commissioner and Chief of Police of A Municipality The office of membership on a board of county commissioners and that of chief of police of a municipality are both considered public offices within the meaning of Article XIV, Section 7, of the Constitution, which pro-hibits double office holding, and one person may not hold both these offices at the same time. 21 April 1960 Double Office Holding; County Tax Supervisor; Member of City Council The office of county tax supervisor and that of membership on a city council 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. 9 May 1960 Double Office Holding; County Welfare Board and County Board of Elections Member of county board of welfare comes within the meaning of the words "commissioners of public charities" as used in Article XIV, Section 7, North Carolina Constitution. 13 October 1958 Double Office Holding; Deputy Clerk of Superior Court; Deputy Register of Deeds The office of deputy clerk of the superior court and that of deputy register of deeds 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. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 49 2 May 1960 Double Office Holding; Deputy Register of Deeds; Notary Public The office of notary public and that of deputy register of deeds are both considered public offices. The office of notary public, however, is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold both these offices at the same time. 16 January 1959 Double Office Holding; Deputy Sheriff; ABC Enforcement Officer; Chief of Police The office of deputy sheriff, that of ABC enforcement officer, and that of chief of police of a municipality are all considered public offices within the meaning of Article XIV, Section 7, of the Constitution, which pro-hibits double office holding, and one person may not hold any combination of these offices at the same time. 26 March 1959 Double Office Holding; Deputy Sheriff; Attendance Officer; Justice of the Peace The office of justice of the peace is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold this office and at the same time hold another public office. A person may hold the office of deputy sheriff and at the same time hold the office of justice of the peace. The position of attendance officer authorized by G. S. 115-168 is not a public office within the meaning of the above section of the Constitution. 10 December 1959 Double Office Holding; Deputy Sheriff and Township Constable The office of deputy sheriff and that of township constable are both con-sidered 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. 18 December 1958 Double Office Holding; Dog Warden and Deputy Sheriff The office of dog warden and that of deputy sheriff are both considered public offices within the meaning of Article XIV, Section 7, of the Con-stitution, which prohibits, double public office holding, and one person may not hold both these offices at the same time. 50 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 9 September 1958 Double Office Holding; Dog Warden and Township Constable The office of dog warden and that of township constable are both con-sidered 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. 30 April 1959 Double Office Holding; Forest Ranger; City Councilman The office of forest ranger and that of city councilman are both con-sidered 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. 22 April 1959 Double Office Holding; General County Court; District Recorder's Court; County Judge; Ex Officio Recorder It would not be unconstitutional for a statute to provide that the Judge of a General County Court also serve ex officio as Judge of a district Recorder's Court. 14 November 1958 Double Office Holding; Justice of the Peace Holding Other Public Office The office of justice of the peace is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold this office and at the same time hold another public office. 12 May 1959 Double Office Holding ; Member of Board of Education ; City Board of Commissioners The office of membership on a city board of education and that of membership on the board of commissioners of a municipality 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, 5 August 1959 Double Office Holding; Member of Board of Trustees of County Hospital Not Public Officer Members of boards of trustees of county hospitals are not considered public officers within the meaning of Article XIV, Section 7, of the Con-stitution, which prohibits double office holding. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 51 25 January 1960 Double Office Holding; Member of County Board of Education; Member of Executive Board of State Department of Archives and History The office of membership on a county board of education and that of membership on the Executive Board of the State Department of Archives and History 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. 6 May 1959 Double Office Holding; Member of County Board of Elections and Member of Special School District Board The office of membership on a county board of elections and that of membership on a special school district board 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. 14 May 1959 Double Office Holding; Member of County Board of Health and Member of City Council The office of membership on a county board of health and that of membership on a city council 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. 9 February 1959 Double Office Holding; Member on County Tax Equalization Board AND County Welfare Board The office of membership on a county tax equalization board and mem-bership on a county welfare boaid are both public offices; however, mem-bership on a county welfare board is exempt from the provisions of Article XIV, Section 7 of the Constitution which prohibits double office holding. Therefore, a person may at the same time be a member of a county welfare board and hold another public office. 23 June 1959 Double Office Holding ; Member of County Welfare Board and Member of Town ABC Board The office of membership on a county welfare board is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold this office and at the same time hold another public office. 52 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 24 June 1959 Double Office Holding; Member op the Executive Board of the Department of Archives and History and Register of Deeds A member of the Executive Board of the State Department of Archives and History and a register of deeds of a county are both considered public officers vi^ithin 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. 28 August 1958 Double Office Holding; Member of Local Government Commission Membership on the Local Government Commission is considered a public office Vi^ithin the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding. 13 August 1959 Double Office Holding; Member of Local School Committee and Member of County Board of Welfare The office of membership on a county board of public welfare is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding, as being a commissioner of public charities, and one person may hold this office and at the same time hold another public office. 27 April 1959 Double Office Holding; Member of Parks and Recreation Commission; Member of School Board The office of membership of the Shelby Parks and Recreation Commission and that of membership on the Shelby School Board are both considered public offices within the meaning of Article XIV, Section 7, of the Con-stitution, which prohibits double office holding, and one person may not hold both these offices at the same time. 4 April 1960 Double Office Holding; Member of State Board of Dental Examiners; Member of Town Board of Aldermen; Member of County Board of Commissioners Membership on the State Board of Dental Examiners, membership on a town board of aldermen, and membership on a county board of commis-sioners are all 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 any combination of these offices at the same time. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 53 10 December 1959 Double Office Holding; Member of State Board op Medical Examiners AND Member of County Board of Health The office of membership on a county board of health and that of mem-bership on the State Board of Medical Examiners are both considered public offices within the meaning of Article XIV, Section 7, of the Con-stitution, which prohibits double office holding, and one person may not hold both these offices at the same time. 3 November 1959 Double Office Holding; Member of State Rural Electrification Authority Board and Parole Supervisor The office of membership on the State Rural Electrification Authority Board and the office of Parole Supervisor 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. 30 April 1959 Double Office Holding; Notary Public; Coroner The office of notary public is exempt from the provisions of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold this office and at the same time hold another public office. 6 November 1959 Double Office Holding; Prosecuting Attorney of County Recorder's Court; Prosecuting Attorney of Mayor's Court The office of prosecuting attorney of a county recorder's court and that of prosecuting attorney of a mayor's court 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. 27 April 1959 Double Office Holding ; Registrar of Elections ; Town Alderman The office of county registrar of elections and that of town alderman 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. 54 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 2 March 1959 Double Office Holding; School Principal A school principal occupies a position of employment rather than a public office. 21 August 1958 Double Office Holding; Solicitor of County Recorder's Court and Assistant District Solicitor A solicitor of a county recorder's court and an assistant solicitor ap-pointed under G. S. 7-43.3 are both public offices within the prohibition contained in the Constitution against double office holding. 19 January 1960 Double Office Holding; Solicitor of Recorder's Court; Chairman of County Board of Elections The office of solicitor of a county recorder's court and that of chairman of 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. 17 December 1958 Double Office Holding; Solicitor of Recorder's Court; County Attorney The position of county attorney is not an office within the meaning of Article XIV, Section 7 of the Constitution which prohibits double office holding. 11 January 1960 Double Office Holding; Superintendent of Hospital; Town Alderman The position of hospital superintendent or matron, or both, within the purview of Section 7 of Chapter 263 of the Public-Local Laws of 1935, would be considered positions of employment rather than public office hold-ing within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding. 21 April 1959 Double Office Holding; Township Constable and Member of Board of Town Commissioners The office of township constable and that of membership on a board of town commissioners 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. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 55 26 January 1959 Double Office Holding; Township Constable and Town Policeman The office of township constable and that of town policeman 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. 30 July 1959 Double Office Holding; Town Alderman; Chief of Municipal Fire Department A town alderman and the chief of a municipal fire department are both considered public officers 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 July 1958 Double Office Holding; Town Commissioner and Member of Local School Committee The office of town commissioner and that of membership on a local school committee 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. 6 May 1959 Double Office Holding; Town Councilman and County Veterans Service Officer The position of county veterans service officer is not considered a public office within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold this position and at the same time serve as a town councilman. 21 January 1960 Double Office Holding; Town Mayor and County Health Department Employee An employee of a county health department is not considered a public officer within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may hold this position and at the same time hold a public office. 56 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 27 February 1959 Double Office Holding; Town Policeman and Deputy Sheriff The office of town policeman and that of deputy sheriff are both con-sidered offices within the meaning of Article XIV, Section 7, of the Con-stitution, which prohibits double office holding, and one person may not hold both these offices at the same time. 5 March 1959 Double Office Holding; Trustee of County Hospital; Judge of Recorder's Court A member of the board of trustees of a county hospital is a public officer within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding, and one person may not hold this office and at the same time hold another public office. The judge of a county criminal court is considered a public officer within the meaning of the above section of the Constitution. 30 September 1959 Double Office Holding; Veterans Service Officer and Civil Defense Director It is thought that a Veterans Service Officer is not a public official within the contemplation of the double office holding provision of Article XIV, Section 7 of the State Constitution. A Veterans Service Officer is simply an employee of the county. EDUCATION 14 April 1959 Education; Community Colleges; Sabbatical Leave The Community College Act, G. S. 116-47, et seq., contains no provision authorizing the making of monetary grants to persons in connection with sabbatical leave. ELECTIONS 21 August 1959 Elections; ABC Election; Time For Holding The provisions of G. S. 18-124 prohibiting the holding of a beer and wine election within 60 days of the holding of any general election, special election or primary election has no application to an A.B.C. Election held pursuant to G. S. 18-61. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 57 The only restriction as to the time of holding an A. B.C. election is that the election may not be held on or within 60 days of any biennial election for County Officers. 29 January 1960 ELECTIONS; Adoption of Loose Leaf Registration System and New Registration To adopt the loose-leaf registration system four steps are necessary: 1. County board of elections adopts a budget sufficient to cover the expense of installing the system; 2. budget is presented to county board of com-missioners for approval, 3. assuming approval by county board of commis-sioners, county board of elections adopts a resolution providing for the installation of the system subject to authorization by the State Board of Elections, and 4. the State Board of Elections authorizes the adoption of the system. If new loose-leaf registration system is installed, the old registration books cannot be used for the purpose of determining at an election who is registered and qualified to vote. CLARK v STATESVILLE, 139 N. C. 49. 25 August 1958 Elections; Certain Special Elections may be held on date of General Election There is no legal reason why a special election for the creation of a mosquito control district, as provided by Chaper 1247, Session Laws of 1957, may not be held on the same date as the general election in November. G. S. 18-61, G. S. 18-124 (f) and G. S. 153-93 have no application. 29 January 1960 Elections; Filing Fee for Unexpired Term Candidate filing for unexpired term should pay full fee required by G. S. 163-120 and not a pro rata filing fee. 20 November 1959 Elections; Justices of the Peace; Residence Requirements Even though a justice of the peace changes his residence as to precincts, he is still qualified to file for office of justice of the peace in the next primary so long as his residence continues in the same township. 9 June 1960 Elections; Name to be Used on Ballot An aspirant for nomination who has his name changed between the first and second primary is not entitled to have his new name printed on the second primary ballot. G. S. 163-151 provides that "in printing the names 58 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. of candidates on all primary and general election ballots, only the legal name of the candidate as same appears on notice of candidacy form shall appear on the ballot." 7 June 1960 Elections; Primaries; Constitutional Law; Grandfather Clause; Validity of Grandfather Clause The so-called "Grandfather Clause", as contained in Article VI, Sec. 4, of the North Carolina Constitution, and all statutes enacted thereunder for the administration of same, are void, invalid and unconstitutional and have been declared to be so by the Supreme Court of the United States in the Case of LASSITER v. NORTHAMPTON COUNTY BOARD OF ELEC-TIONS. Future registration must be based upon the literacy test as required by the statutes of this State. G. S. 163-28. 1 June 1960 Elections; Primaries; Eligibility to Vote In order to participate in a primary election, an elector must declare the party of his choice before participating in the primary of the party with which he is affiliated. A person not affiliated with any political party may not participate and vote in a party primary election. 27 August 1958 Elections; Procedure when no Candidate Nominated in Primary When no candidate files for a county office subject to the party primary, the provisions of G. S. 163-145 are not applicable. Under such circum-stances the Executive Committee of the political party involved may not designate a nominee. However, under G. S. 163-175(3) a person may be elected to such office by write-in votes. 19 September 1958 Elections; Residence; Registration In order to vote in this State, a person must have been a resident of the the State for a year and a resident of the voting precinct where he proposes to vote for not less than thirty days immediately preceding the date of election. One may register in advance of this time provided he will have met the residence requirements by the time of the election in which he proposes to vote. 24 November 1958 Elections; Sanitary Districts; Members of Board; Write-In Votes The provisions of the elections laws relating to write-in ballots apply in elections of members of a sanitary district board. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 59 14 June 1960 Elections; Special Election for Industrial Development Tax Under Chapter 1086 of the Session Laws of 1959, only one election may-be held to determine whether or not an additional industrial development tax may be levied. 17 May 1960 Election; "Straw^" Vote A "straw" vote cannot be held in conjunction with a primary election. 28 April 1960 Elections; Voters; Qualification and Registration of Voters Under the provisions of G. S. 163-21, G. S. 163-196 and G. S. 163-197 it definitely appears that a registrar can take such steps as are necessary to carry out the registration of qualified voters in an orderly and business-like manner, including, where necessary, in order to properly carry out the functions of the office, the authority to limit the number of people within the room being used for the purpose of registration. Under G. S. 163-20 the board of county commissioners has authority to provide additional com-pensation for precinct election officials above the $15.00 per day for certain days therein specified. 19 May 1960 Elections; Write-Ins at Primaries "Write-in" votes are not permitted in a primary. EMINENT DOMAIN 30 November 1959 Eminent Domain; Condemnation; Special Proceedings; Public Utilities The amount of land necessary for a particular project involving con-struction of a dam is generally in the discretion of the company exercising the power of eminent domain, in the absence of a showing of an abuse of discretion. Landowners adjoining the lake would have no right to use the water from the lake for irrigation purposes except by consent of the power company. 60 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 23 February 1959 Eminent Domain; Urban Redevelopment Commission; Necessity for Complying with Public Works Eminent Domain Law G. S. 160-465 provides that an urban redevelopment commission may-exercise the right of eminent domain in the manner provided by law for the exercise of such right by municipalities. Therefore, such a commission may exercise that right either under art. 1 of ch. 40 of the General Statutes or under the Public Works Eminent Domain Law. ESCHEATS 2 June 1959 Escheats—University of North Carolina; Liability for Ad Valorem Taxes When a person dies leaving real estate which escheats to the University of North Carolina, the property escheated at the instant of the person's death, and no ad valorem taxes accrue thereon thereafter. ESTATES 11 July 1958 Estates; Estate by Entireties; Tax Judgments Against Husband; Sale OF Property Under Power of Foreclosure in Deed of Trust Executed BY Husband and Wife; Surplus Proceeds A tax judgment against the husband is not a lien against real estate held by the husband and his wife as an estate by the entireties, but the excess proceeds from sale of such property under the power of sale con-tained in a deed of trust are owned by the husband and wife as tenants in common, nothing else appearing, and the husband's share of the excess proceeds in the hands of the trustee may be attached by the Commissioner of Revenue through garnishment. EXECUTORS AND ADMINISTRATORS 12 September 1958 Executors and Administrators ; Action for Wrongful Death ; Damages ; Conflict of Laws In a wrongful death action the amount and distribution of the recovery are matters of substantive law and on a question of conflicts are governed by the law of the jurisdiction in which the injury and death occurred. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 61 Under the Virginia statute Title B, Section 636, the amount of the recovery is limited to $30,000 and the jury is authorized to apportion between and among the beneficiaries under the statute. If the jury fails to do so, the presiding judge may make the apportionment. 23 July 1958 Executors and Administrators; Conviction of Felonious Slaying of Husband Bars Widow's Right to Administer When either party to a marriage is convicted of the felonious slaying of the other or of being accessory before the fact to such slaying, the party so convicted shall thereby lose his or her right to administer on the estate of the other, to a distributive share in the personal property of the other, dower and courtesy rights, and in such case the widow shall not be entitled to her widow's year's allowance, G. S. 28-10; G. S. 30-4; G. S. 52-15. However, if such a party is acquitted of the criminal charge, the rights above enumerated are not forfeited. McMICHAEL v PROCTOR, 243 N. C. 479. 14 July 1958 Executors and Administrators; Distribution Under G. S. 28-149(5) Under G. S. 28-149(5), if there is neither widow or children nor any legal representative of the children, the personal estate shall be distributed equally to every of the next of kin of the intestate who are in equal degree, and those who legally represent them. In case the class of next of kin is composed solely of brothers and sisters, they share per capita; but if a brother or sister has predeceased the intestate, those who legally represent the deceased brothers and sisters share per stirpes. If all the brothers and sisters have predeceased the intestate and have left children surviving, the nieces and nephews share per capita. 31 March 1960 Executors and Administrators; Final Accounts; Compelling a ccounting Clerks of the Superior Court have power to compel executors and admin-istrators to file accounts. FEES 2 June 1960 Fees; Witness Fees; Minimum Wage Law Fees allowed to witnesses in the Superior Court are fixed by law, and the minimum wage law of the State has no application thereto. 62 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. FINES AND FORFEITURES 4 December 1958 Fines and Forfeitures; Fines Paid into School Fund; Procedure for Remission for Good Cause Shown G. S. 115-98 (3) provides that, when fines have been assessed and col-lected and paid into the school fund, such fines may not be remitted "except for good and sufficient reasons, which reasons shall be stated on the docket and at all times be open to public inspection." Under the above statute, upon a proper showing in a motion in the cause after notice to the County Board of Education, the fine imposed could be remitted to the person who paid the same. Any costs collected and paid to the City in such a case could be refunded by action of the governing board of the City. FIRE DEPARTMENTS 10 May 1960 Fire Departments; Fire Protection; Powers and Duties of Members OF the Fire Department Members of a fire department have the implied authority to direct traffic in the vicinity of a fire and to order sight-seers and other persons out of a burning building or its vicinity. Ordinarily, they have no power of arrest, 9 February 1959 Fire Departments; Rural Fire Department A rural protection district, as provided in Section 69-25.1 of the General Statutes, cannot include an incorporated town within the boundaries of the district because that section specifically limits such protection district to "an area lying outside the corporate limits of any city or town". On the other hand, there is no statutory objection to such district surrounding a town. 4 June 1959 Fire Departments; Rural Fire Protection; Condemnation of Buildings Chiefs of rural fire departments do not have such authority to condemn unsafe buildings as is bestowed on the fire chief or local building inspector of certain towns by the provisions of Article 11, Chapter 160 of the General Statutes. 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 63 GAME LAWS 1 July 1959 Game Laws; Fishery Inspectors; Power of Arrest Fishery inspectors are not special peace officers within the purview of G. S. 113-28.1; however, they have ample authority under the provisions of Subchapter 4 of Chapter 113 of the General Statutes of North Carolina to enforce the fishery laws, rules, and regulations and to make arrests when necessary. 29 July 1958 Game Laws; Fishing; Fishing From Highway Neither the State nor the public acquires any fishing rights as a result of the acquisition of a highway easement by the State Highway Commis-sion. An individual attempting to fish in a private pond from a highway would be subject to the same laws, regulations and restrictions as if he were fishing from any other bank on the pond. 9 May 1960 Game Laws; Fishing; Licenses; Residence Requirements For the purposes of G. S. 136-146 requiring nonresident fishing licenses, a person is not considered to have lost his county residence who leaves his home and goes into another state or county for temporary purposes only, with the intention of returning. Evidence of such intention is found in ownership of property, place of voting, attendance of children at schools, place of pajrment of taxes, and previous purchase of license. 21 October 1958 Game Laws; Fishing; Private Ponds; What Constitutes Private Pond Any lake in which fish are free to move across property lines are public waters, and subject to all laws and regulations governing freshwater fishing. 17 December 1958 Game Laws; Game Animals in Captivity A game animal illegally acquired and illegally held in possession may be seized by proper enforcement officers to be held as evidence for the trial of the person for his illegal possession of the game animal. 30 October 1959 Game Laws; Hunting with Pistol; Weapons; Hunting with Pistol Unlawful It is unlawful to take game with a pistol. 64 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. GASOLINE 20 May 1960 Gasoline and oil inspection; branding gasoline The Gasoline and Oil Inspection Board of the North Carolina Department of Agriculture has no authority under the existing statutes to prescribe rules and regulations by which gasoline may be sold at wholesale. GOVERNOR 22 April 1959 Governor; Term of Office; Succeeding Self in Office The Constitution of North Carolina prohibits the Governor from succeed-ing himself. GUARDIANS 22 April 1960 Guardians; Bonds; Personal Sureties; Estate in Excess of $100,000 Where the personal estate of a minor exceeds $100,000, a guardian with personal sureties may give a bond equal to the value of the personal estate plus 10 per cent. 20 April 1959 Guardians; Clerk of the Court; Examination of Assets The certification by the Clerk of a Superior Court that he has examined the investments and account of a guardian as required by G. S. 33-42.1 should be made by the Clerk to whom the guardian is required to account, and not to the Clerk of the Superior Court in the county where the guardian resides. HEALTH Health; Compulsory Polio Immunization; County Board of Health Under the provisions of Section 130-93 of the General Statutes, a local board of health is authorized to adopt a regulation making polio immuni-zation compulsory provided the statutory exemptions relating to diphtheria, tetanus, whooping cough, and smallpox immunization are also included in such regulation. 35] BIENNIAL REPORT OP THE ATTORNEY GENERAL 65 13 October 1958 Health; Compulsory Polio Immunization; No State Statute There is no State law requiring school children to be vaccinated against polio. However a local board of health would have authority to adopt regu-lations requiring polio vaccination of school children. 11 September 1959 Health; County Board of Health; Rules and Regulations; Requirement of Pasteurization of Milk A local board of health has authority to adopt regulations prohibiting the sale of unpasteurized milk. 6 August 1958 Health; District Board of Health; Authority; Enforcement of Penalties for Violation of Rules and Regulations A District Board of Health is without authority to prescribe criminal punishment for the violation of its rules and regulations. STATE v CUR-TIS, 230 N. C. 169. The Statute, G. S. 130-203 provides that a violation of such rules and regulations is a misdemeanor punishable by a fine not exceeding $50 or im-prisonment not exceeding thirty days. 18 July 1958 Health; District Boards of Health; County Appropriations; Contract OF Local Board with State Board When a county contracts to appropriate a lump sum to a district health department during a fiscal year, the fact that all the money is not expended does not entitle the county to a pro rata refund because the contract expressly provides that any balance at the end of the fiscal year shall be carried forward to the credit of the health department for the succeeding fiscal year. 14 July 1959 Health; District Health Departments; Composition of the Board; Number of Public Members Permitted by Statute The provisions of G. S. 130-14 relating to the organization of district health departments permit four public members for districts comprised of two or more counties. If the district is composed of more than four counties, however, an additional public member may be added to the board. One public member must come from each of the participating counties. 66 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. A district composed of five counties would be entitled to five public mem-bers on its board. Any public members in excess of five would be in viola-tion of the statute. 15 September 1959 Health; District Health Departments; Ex-Officio Member; Number OF Public Members The ex-officio membership of a district board of health must be one of the public officers or officials named in G. S. 130-14. This includes one chairman of a board of county commissioners, one mayor of a town which is the county seat and one county superintendent of schools. In a district health department comprised of two or more counties but not more than four counties the public membership cannot exceed four members. 18 November 1959 Health; Immunization of Children; "Booster" Shots Before Entering School; Public Schools It is the intent and purpose of Article 9 of Chapter 130 of the General Statutes that children should have had whatever immunization treatments that might be necessary in order to have an effective immunization condi-tion or status as of the time of entering school for the first time and, if "booster" shots are necessary to accomplish this, then a principal of a school would have authority to refuse admission of a child to a school until such condition was corrected. 5 June 1959 Health; State Board of Health; Grants-in-Aid to Counties; Local Health Department Expenditures; Requirement of Audit The State Board of Health has authority to require an audit or account-ing in connection with the expenditure of funds by local health departments as a condition upon which federal and state grants-in-aid are furnished such local health departments. 19 February 1959 Health ; State Board of Health ; Health Reports ; Reporting of Cancer It would be necessary to amend G. S. 130-184 in order to authorize re-porting of cancer cases by pathology number rather than by name of the person having cancer inasmuch as said statute specifically requires at present that the report include "the name, address, etc., ... of any person . . . who is found to have cancer of any type." 35] BIENNIAL REPORT OF THE ATTORNEY GENERAL 67 31 December 1958 Health ; State Board of Health ; Maternal and Child Health Program AND Crippled Children's Program G. S. 130.9 provides authority for the State Board of Health to accept and allocate federal funds for the operation of maternal and child health programs and crippled children's programs. 26 January 1959 Health; State Board of Health; Merit System Council; Federal and State Local Health Grants-in-Aid The State Board of Health may withhold allocation of federal and state grants-in-aid funds to local health departments until the local departments have demonstrated compliance with the merit system laws and regulations. 18 September 1958 Health; State Board of Health; Sanitary Districts; Creation of New District In creating a sanitary district, the State Board of Health may not alter the territorial area from that described in the petition for the creation of the district. 7 October 1958 Health; State Board of Health; Sanitary District |
OCLC Number-Original | 5792362 |