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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