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i mm^} ipiiiii lii s^Tme iii P^s pill*. Cl)e Lifirarp of t|)C OniDergitp of s^otth Carolina Collection ot jRortt Catoltniana '2rf)i0 fiooft toa0 ptt0znteti TUe AHovv^ew .\:tcvief^U C34o \^So/SZ r UNIVERSITY OF N.C. AT CHAPEL HILL 00033944876 FOR USE ONLY IN THE NORTH CAROLINA COLLECTION Digitized by the Internet Arcinive in 2011 with funding from Ensuring Democracy through Digital Access (NC-LSTA) http://www.archive.org/details/biennialrep1950attrny1952 BIENNIAL REPORT OF THE ATTORNEY GENERAL OF THE STATE OF NORTH CAROLINA VOLUME 31 1950-1952 HARRY McMULLAN ATTORNEY GENERAL T. W. Bruton Hughes J. Rhodes* Ralph Moody Claude L. Love James E. Tucker** Peyton B. Abbott*** L Beverly Lake Harry W. McGalliard John Hill Paylor Died May, 1951. '*Resigned and succeeded by I. Beverly Lake 'Resigned and succeeded by Harry W. McGalliard LIST OF ATTORNEYS GENERAL SINCE THE ADOPTION OF CONSTITUTION IN 1776 TeifTn 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 1868-1869 Olds, Lewis P 1869-1870 Shipp, William M 1870-1872 Hargrove, Tazewell L 1872-1876 Kenan, Thomas S 1876-1884 Davidson, Theodore F 1884-1892 Osborne, Frank 1 1892-1896 Walser, Zeb V 1896-1900 Douglas, Robert D 1900-1901 Gilmer, Robert D 1901-1908 Bickett, T. W 1909-1916 Manning, James S 1917-1925 Brummitt, Dennis G 1925-1935 Seawell, A. A. F 1935-1938 McMullan, Harry 1938- LETTER OF TRANSMITTAL 1 December 1952 To his Excellency, ;. - W. Kerr Scott, Govei-iior Raleigh, North Carolina Dear Sir: In compliance with statutes relating thereto, I herewith transmit the report of the Department of Justice for the biennium 1950-52. Respectfully yours, Harry McMullan, Attorney General EXHIBIT 1 Civil Actions Pending or Disposed of in the Courts OF North Carolina Pending in the Superior Courts of North Carolina R. L. Lewis and Huger King v. Johnson, State Treasurer. J. H, Akins v. B. D. Perry. Winston-Salem v. Realty Bond Company, et al. City of Charlotte v. George W. Parr, et al. E. C. Bivens, etc. v. Harry McMullan, Attorney General, et al. Wiscasset Mills Company v. Shaw, Commissioner of Revenue. Martine Oaksmith v. Department of Conservation and Develop-ment, et al. Lambert R. Morris v. Mason, et al. and State Board of Educa-tion. Jas. M. Scarborough, et al. v. F. L. Andrews. Jas. A. Scarborough, et al. v. Mrs. Lizzie A. Wright. . W. W. Brittain, et al. v. Harry McMullan, Attorney General. Wachovia Bank & Trust Company v. Elsie Brown, et al. and Attorney General. S. D. Ellison v. Hunsinger and Fairley, State Warehouse Super-intendent. In the Matter of Blue Bird Taxi Company. Elwood McRae, etc. v. Edgar Williams, et al. Southern Oil Transportation Co., Lie. v. Commissioner of Motor Vehicles. Victory Cab Company v. Shaw, Commissioner of Revenue. A. Ray Trexler, et al. v. Martin Trexler, Shaw, Commissioner of Revenue, et al. Pure Oil Company of the Carolinas v. Maxwell, Commissioner of Revenue. Burroughs Adding Machine Company v. Gill, Comimissioner of Revenue. Estate of Celeste W. Blake, Deceased. Board of Education, et al. v. Shaw, Commissioner of Revenue. Gill V. Bullock's, Lie. and Crensliaw^-Nelson-Bullock, Inc. Mrs. Frances Davis Chance v. State of North Carolina. State ex rel. Shaw, Commissioner of Revenue v. Walter J. Clarke, et al. Commercial National Bank, et al. v. Shaw, Commissioner of Revenue. State of North Carolina v. Commonwealth Fuel Company. Cozier Container Corporation v. N. C. Pulp Company, et al. State of North Carolina v. Ervin Ray Davis State of North Carolina v. D. E. Graham, Jr. June Hayes v. Shaw, Commissioner of Revenue. Hodgin, et al. v. Commissioner of Revenue. 6 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. Town of Mocksville v. Fisher Dulin and Wife. State ex rel. v. Department of Revenue v. Frank Davis, et al. Catherine J. Ward, et al. v, Jessup and Commissioner Revenue. State ex rel. Utilities Commission v. Frederickson Motor Ex-press, et al. State ex rel. Utilities Commission v. K. and Y. Motor Lines. State ex rel. Utilities Commission v. Pate Transfer. State ex rel. Utilities Commission v. H. Grover Brigman. State ex rel. Utilities Commission v. Roanoke Freight Lines, Inc. State ex rel. Utilities Commission v. Harry Lockhard and Leo Wallace Yancey. State ex rel Utilities Commission v. Miller Motor Express, et al. State ex rel. Utilities Commission v, Atlantic Coast Line Rail-road Companj^ State ex rel. Utilities Commission v. Paul E. Ricks, et al. State ex rel. Utilities Commission v. Strickland Transfer. State ex rel. Utilities Commission v. E. C. Robbins, Town of For-est City, et al. State ex rel. Utilities Commission v. Clinton Bus Lines (2 cases) . State ex rel. Utilities Commission v. Piedmont Mountain Freight Lines, Inc. State ex rel. Utilities Commission v. Blue Ridge Trucking Com-pany. William E. Sweat v. Rutherford County Board of Education. Disposed of in Superior Courts of North Carolina Frank 0. Sherrill v. Hugh McRae Co., Inc., et. al. Dr. J. R. Spencer v. State Board of Health. J. H. Harris v. A. B. Fairley, State W^arehouse Superintendent. Willis G. Briggs, Administrator v. N. C. State College, et al. Leake v. State Board of Elections. Mary E. Haywood v. Erwin, State Superintendent of Public In-struction. George R. Wallace, et al. v. State Board of Education, et al. George R. Wallace, et al. v. Archie Royal Davis, et al. Woman's Home Missionary Society v. Packer, Administrator, and Attorney General. Wachovia Bank & Trust Company, Executor v. Waddell, et al. and University of North Carolina. E. Y. Ponder v. State Board of Elections, et al. Mrs. Lettie M. Watkins, Administratrix v. Shaw, Commissioner of Revenue. Wilmington Red Cross Sanitarium, Inc. v. City of Wilmington. J. L. Widman, et al. v. Shaw, Commissioner of Revenue. Dot's Smart Shop v. Shaw, Commissioner of Revenue. Gill, Commissioner of Revenue v. F. D. Smith, alias George Smith, et al. State ex rel. Utilities Commission v. Frederickson Motor Ex-press, et al. 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 7 State ex rel. Utilities Commission v. Blue Ridge Trucking Com-pany. State ex rel. Utilities Commission v. Miller Motor Express. State ex rel. Utilities Commission v. Martel Mills Corporation. State ex rel. Utilities Commission v. Queen City Coach Com-pany (2 cases) . State ex rel. Utilities Commission v. Ray Whisnant, et al. State ex rel. Utilities Commission v. Thomas E. Johnson, et al. State ex rel. Utilities Commission v. Arlie Hall. State ex rel. Utilities Commission v. Knightdale Water Supply. State ex rel. Utilities Commission v. Grace Moore White. State ex rel. Utilities Commission v. Town of Spring Lake. State ex rel. Utilities Commission v. Atlantic Coast Line Rail-road Company (2 cases). State ex rel. Utilities Commission v. Blanton's Business College. State ex rel. Utilities Commission v, Norfolk Southern Railway Company and Railway Express Agency. State ex rel. Utilities Commission v. Leicester Bus Lines. State ex rel. Utilities Commission v. Richard A. Shaw, et al. State ex rel. Utilities Commission v. C. W. Davis and Wife. State ex rel. Utilities Commission v. Fleming Bus Company. Pending in North Carolina Supreme Court State ex rel. Utilities Commission v. Leicester Bus Lines. State ex rel. Utilities Commission v. Richard A. Shaw, et al. State ex rel. Utilities Commission v. C. A. Davis and Wife. State ex rel. Utilities Commission v. Atlantic Coast Line Rail-road Company. Disposed of in North Carolina Supreme Court Lester J. Sparrow, et al. v. Dixie Leaf Tobacco Company. Gill, Commissioner of Revenue v. F. D. Smith, alias George Smith, et al. Gates County School Committee v. Board of Education of Gates County. Watson Industries v. Shaw, Commissioner of Revenue. State ex rel. Hanson, etc. v. James M. Yandle, et al. In Re : Curnel Nathaniel Hickerson. State ex rel. Utilities Commission v. Atlantic Coast Line Rail-road Company (2 cases). State ex rel. Utilities Commission v. Fleming Bus Company. In Re : Housing Authority of the City of Charlotte. North Carolina State Art Society v. Bridges, State Auditor. 8 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. Pending Before North Carolina Industrial Commission (Workmen's Compensation Cases) Hugh Anderson Johnson v. Warren County Board of Education, et ah Austin Adams v. Craven County Board of Education. K. W. Ballentine v. Department of Agriculture. Frank Duff v. State Board of Education. Grady Duncan v. Division of State Parks. Pearl L. Jones v. State Hospital at Butner. John T. McCurry v. Yancey County Board of Education. Joseph S. Powell v. State Hospital at Goldsboro. Amelia P. Perry v. Granville County Board of Education. Jimmy Wilkins v. State Hospital at Raleigh. Disposed of Before North Carolina Industrial Commission (Workmen's Compensation Cases) J. H. Tadlock v. Bertie County Board of Education, et al. Mrs. Willie Riddick v. State Board of Education. W. W. Walker, Deceased, v. State Board of Alcoholic Control. Mrs. Birdie Brooks Pursley v. State Board of Education, et al. R. E. Poole V. State Board of Health. Jimmie Oaks v. Woman's College, University of North Carolina. Harold Minges v. State Board of Public Buildings and Grounds. William A. Minnis v. University of North Carolina. Mrs. Sadie L. Fort v. State Board of Education. S. M. Eddleman v. Stokes County Board of Education. Ladd Duncan v. Rutherford County Board of Education. Charles Carroll v. Johnston County Board of Education. Anne Brown v. Orange County Board of Education. Sylvester T. Bridgers v. Board of Buildings and Grounds. Jacqueline A. Blackwell v. State Board of Education. Walter Barger v. Guilford County Board of Education. Thomas H. Johnson v. Wake County Board of Education. Robert Samuel Weathers v. Department of Motor Vehicles. William E. Sweat v. Rutherford County Board of Education. Pending in United States Supreme Court Raleigh Speller v. State of North Carolina. Clyde Brown v. State of North Carolina. David Brock v. State of North Carolina. Disposed of in United States Supreme Court Elmer Matthews and Jim Cook v. State of North Carolina. Jack T. Tenney, et al. v. William Patrick Brandhove. Sterling L. Hicks v. State of North Carolina. 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 9 Pending in District Court of the United States Ellis V. Wilson Public School District. Bennie Daniels, et al. v. State of North Carolina. Joseph Butts, et al. v. Board of Education of Perquimans County. Weaver, et al. v. H. P. Taylor, et al. Alice Hanibal, etc. v. H. P. Taylor, et al. Leonard Keele, et al. v. H. P. Taylor, et al. James Edward Thomas v. Gray, President of University of North Carolina. William H. Johnson v. State Board of Education. Disposed of in District Court of the United States Carolyn J. Blue, et al. v. State Board of Education. (Dismissed as to State Board of Education). Hubert A. Eaton, Jr. v. H. P. Taylor, et al. Harold Thomas Epps, et al. v. Carmichael, et al. Gwendolyn Lolita Harris v. Gray, President of University of North Carolina. United States v. Carthage Bonded Warehouse Corporation, et al. Pending in the United States Court of Appeals Winborne v. H. P. Taylor, et al. Disposed of in United States Court of Appeals Floyd B. McKissick, et al. v. Carmichael, et al. Disposed of Before Interstate Commerce Commission State of North Carolina and Utilities Commission v. Aberdeen and Rockfish Railroad Company. E X H I B I T I I List of Criminal Cases Argued by the Attorney General AND His Associates Before the North Carolina Supreme' Court: Fall Term, 1950, Spring Term, 1951; Fall Term, 1951, Spring Term, 1952. FALL TERM, 1950 State V. Ardrey, from Mecklenburg ; assault with deadly weapon, etc.; defendant appealed; new trial; 232 N, C. 721. State V. Armstrong, from Gaston ; manslaughter ; defendant ap-pealed; new trial; 232 N. C. 727. 10 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. State V. Barber, from Carteret; violating motor vehicle laws; defendant appealed; appeal dismissed; 232 N. C. 577, State V. Best, from Craven; breaking and larceny, larceny and receiving; defendant appealed; no error; 232 N. C. 575. State V. Bowman, from Stokes; carnal knowledge; defendant appealed ; no error ; 232 N. C. 374. State V. Brown, from Forsyth ; rape ; defendant appealed ; no error; 233 N. C. 202. State V. Campo, from Mecklenburg; abandonment-nonsupport ; defendant appealed; no error; 233 N. C. 79. State V. Correll, from Mecklenburg; violating motor vehicle laws ; defendant appealed ; affirmed ; 232 N. C. 696. State V. Cottle, et al, from Sampson; conspiracy, stealing, etc.; defendants appealed; no error; 232 N. C. 567. State V. Eagle, from Forsyth ; violating motor vehicle laws ; de-fendant appealed; new trial; 233 N. C. 218. State V. Early, from Mecklenburg ; involuntary manslaughter ; defendant appealed; new trial; 232 N. C. 717. State V. Elliott, from Perquimans ; violating liquor laws ; de-fendant appealed; new trial; 232 N. C. 377. State V. Foy, from Forsyth; violating liquor laws; defendant appealed; affirmed; 232 N. C. 228. State V. Hendrick, from Warren ; murder first degree, with rec-ommendation; defendant appealed; reversed; 232 N. C. 447. State V. Hicks, from Craven ; assault with deadly weapon ; de-fendant appealed; appeal dismissed; 232 N. C. 520. State V. Hicks, et al.. from Mecklenburg; malicious injury to property; defendant appealed; reversed; 233 N. C. 31. State V. Hill, from Guilford ; involuntary manslaughter ; defend-ant appealed; reversed; 233 N. C. 61. State V. Holbrook, from Wilkes ; murder second degree ; defend-ant appealed ; no error ; 232 N. C. 503. State V. Jamieson, from Union ; violating lottery laws ; defendant apealed; affirmed; 232 N. C. 731. State V. Lambe, from Rowan ; assault with intent to kill, etc. ; defendant appealed; no error; 232 N. C. 570. State V. Lamm, from Wilson; murder first degree; defendant appealed; no error; 232 N. C. 402. State V. Lloyd, from Orange; violating motor vehicle laws; de-fendant appealed; reversed; 233 N. C. 227. State V. McDay, from Buncombe; nonsupport of minor child; defendant appealed ; new trial ; 232 N. C. 388. State V. Maples, from Moore; reckless driving; defendant ap-pealed; appeal dismissed; 232 N. C. 732. State V. Nelson, from Buncombe; assault on female; defendant appealed; new trial; 232 N. C. 602. State V. Pennell, from Caldwell ; murder second degree ; defend-ant appealed; no error; 232 N. C. 573. 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 11 State V. Phillips, from Wayne; involuntary manslaughter; de-fendant appealed; no error; 233 N. C. 87. State V. Randolph, from Caswell ; assault with intent to commit rape; defendant appealed; new trial; 232 N. C. 382. State V. Ray, from Johnston; manslaughter; defendant ap-pealed; no error; 232 N. C. 496. State V. Robinson, from Yancey; abandonment-nonsupport; de-fendant appealed; judgment vacated; 232 N. C. 418. State V. Sally, from Durham; manslaughter; defendant ap-pealed; new trial; 233 N. C. 225. State V. Sawyer, from Cumberland; violating liquor laws; de-fendant appealed; no error; 233 N. C. 76. State V. Smith, from Scotland; larceny; defendant appealed; af-firmed ; 233 N. C. 68. State V. Sumner, from Camden; violating motor vehicle laws; defendant appealed; no error; 232 N. C. 386. State V. White, from Chowan; larceny; defendant appealed; no error; 232 N. C. 385. State V. Wiggins, from Lenoir; involuntary manslaughter; de-fendant appealed; no error; 232 N. C. 619. State V. Worrell, from Wayne ; receiving stolen goods ; defendant appealed; no error; 232 N. C. 493. DISMISSED ON MOTION State V. Hall and Bowzer, from Washington. State V. Leary, from Craven. State V. McLawhorn, from Lenoir. State V. Liles, from Franklin. SPRING TERM, 1951 State V. Alston, et al., from Warren; breaking, entering, etc.; defendants appealed; no error; 233 N. C. 341. State V. Artis, from Wayne ; manslaughter ; defendant appealed ; no error; 233 N. C. 348. State V. Bovender, et al., from Forsyth; conspiracy, storebreak-ing, larceny and receiving; defendants Hale, King and King appealed; no error; 233 N. C. 683. State V. Bridgers, from Wake; breaking, entering and larceny; defendant appealed; new trial; 233 N. C. 577. State V. Buchanan, from Wake; violating liquor laws; defend-ant appealed; no error; 233 N. C. 477. State V. Carter, from Richmond; violating motor vehicle laws; defendant appealed; no error; 233 N. C. 581. State V. Cobb, from Guilford ; violating liquor laws ; defendant appealed; no error; 233 N. C. 647. State V. Cuthrell, from Camden ; house burning ; defendant ap-pealed; new trial; 233 N. C. 274. 12 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. State V, Edwards, from Wake; indecent exposure; defendant appealed; no error; 233 N. C. 492. State V. Ellers, from Granville ; receiving stolen goods, etc. ; de-fendant appealed; 1st bill, reversed, 2d bill, new trial; 234 N. C. 42. State V. Gibbs, from Beaufort ; violating liquor laws ; defendant appealed; no error; 233 N. C. 281. State V, Gibson, et al., from Guilford ; violating lottery laws defendants appealed; error and remanded; 233 N. C. 691. State v. Goins, from Randolph; manslaughter; defendant ap-pealed; no error; 233 N. C. 460. State V. Hicks, from Mecklenburg; conspiracy; defendant ap-pealed; no error; 233 N. C. 511. State V. Hovis, from Lincoln; involuntary manslaughter; de-fendant appealed; no error; 233 N. C. 359. State V. Jarrell, from Alleghany; assault with deadly weapon with intent to kill; defendant appealed; reversed; 233 N. C. 741. State V. McFarland, from Richmond ; assault on female ; de-fendant appealed; no error; 233 N. C. 648. State V. McMillan, from Bladen; murder first degree; defendant appealed ; new trial ; 233 N. C. 630. State V. Mobley, from Edgecombe ; violating photographer's act ; defendant appealed ; reversed ; 234 N. C. 55. State v. Mullis, from Iredell; assault with intent to rape; de-fendant appealed; no error; 232 N. C. 542. State V. Rhodes, from Lenoir ; violating liquor laws ; defendant appealed; no error; 233 N, C. 453. State V. Rogers, from Sampson; murder first degree; defendant appealed; no error; 233 N. C. 390. State V. Roy, et al., from Harnett; (Roy) assault with intent to rape; (Slate) assault on female; defendants appealed; no error; 233 N. C. 558. State V. Russell, from Buncombe; murder second degree; de-fendant appealed; no error; 233 N. C. 487. State V. Sherian, et al., from Richmond; assault with deadly weapon with intent to kill ; defendants appealed ; new trial ; 234 N. C. 30. State V. Simpson, from Cabarrus; violating motor vehicle laws; defendant appealed ; new trial ; 233 N. C. 438. State V. Sipes, from Guilford; robbery; defendant appealed; no error; 233 N. C. 633. State V. Thompson, from Chatham; nonsupport of illegitimate child; defendant appealed; judgment arrested; 233 N. C. 345. State V. Webb, et al., from Johnston; violating liquor laws; de-fendants appealed; reversed; 233 N. C. 382. State V. Wilkes, from Scotland; violating parking meter statute; special verdict; State appealed; affirmed; 233 N. C. 645. State V. Wood, from Cumberland ; carnal intercourse ; defendant appealed; new trial; 233 N. C. 636. 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 13 DISMISSED ON MOTION State V. Hall, from Jackson. State V. Shedd, from Macon. FALL TERM, 1951 State V. Benson, from Johnston; violating liquor laws; defend-ant appealed; new trial; 234 N. C. 263. State V. Brannon, et al., from Cherokee; manslaughter; defend-ants appealed; no error; 234 N. C. 474. State V. Bridgeman, from Yancey; trespass; State appealed; affirmed; 234 N. C. 262. State V. Brock, from Edgecombe; assault with deadly weapon; defendant appealed ; affirmed ; 234 N. C. 390. State V. Brock, et al., from Edgecombe; forfeiture of bail bond; defendants appealed; affirmed; 234 N. C. 391. State V. Cash, et al., from Cleveland; arson; defendant Cash ap-pealed ; new trial ; 234 N. C. 292. State V. Clark, from Buncombe; abandonment-nonsupport ; de-fendant appealed ; reversed ; 234 N. C. 192. State V. Cottle, et al., from Sampson ; robbery, etc. ; defendants appealed; appeal dismissed without written opinion; 234 N. C. 746. State V. Dobbs, from Gaston; violating liquor laws; defendant appealed; appeal dismissed; 234 N. C. 560. State V. Fuqua, from Caswell; violating liquor laws; defendant appealed; no error; 234 N. C. 168. Stae V. Gibbs, from Yancey ; trespass ; State appealed ; affirmed ; 234 N. C. 259. State V. Harper, et aid from Greene ; violating liquor laws ; State appealed ; new trial ; 235 N. C. 62. State V. Harper, et al from Greene ; violating liquor laws ; State fendant Harper appealed ; new trial ; 235 N. C. 67. State V. Holland, from Caldwell; (1) armed robbery, (2) assault with deadly weapon with intent to kill ; defendant appealed ; (1) reversed, (2) no error; 234 N. C. 354. State V. Home, from Buncombe ; larceny, etc. ; defendant ap-pealed; error and remanded; 234 N. C. 115. State V. Jenkins, from Edgecombe; violating liquor laws; defend-ant appealed; no error; 234 N. C. 112. State V. Kimmer, et al., from Iredell; breaking, entering, lar-ceny; defendants appealed; new trial; 234 N. C. 448. State V. Kirkman, from Guilford; violating liquor or narcotic laws ; defendant appealed ; no error ; 234 N. C. 670. State V. McLean, from Lee; involuntary manslaughter; defend-ant appealed; no error; 234 N. C. 283. State v. Marsh, from Surry; (1) robbery, (2) murder first de-gree; defendant appealed; (1) error and remanded (pro-visionally), (2) no error; 234 N. C. 101. 14 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. State V. Meadows, from New Hanover; violating motor vehicle laws ; defendant appealed ; affirmed ; 234 N. C. 657. State V. Minton, et al., from Wilkes; murder second degree; de-fendants appealed; no error; 234 N. C. 716. State V, Parker, from Johnston ; violating liquor laws ; defendant appealed; error and remanded; 234 N. C. 236. State V. Pillow, from Nash ; violating motor vehicle laws ; de-fendant appealed ; new trial ; 234 N. C. 146. State V. Sharpe, from Buncombe; nonsupport; defendant ap-pealed; reversed; 234 N. C. 154. State V. Shinn, from Cabarrus ; violating liquor laws ; defendant appealed; new trial; 234 N. C. 397. State V. Simmons, from Craven ; murder first degree ; defendant appealed; new trial; 234 N. C. 290. State V. Stallings, from Johnston ; violating liquor laws ; defend-ant appealed ; reversed ; 234 N. C. 265. State V. Tew, from Johnston; breaking, entering, larceny; de-fendant appealed; no error; 234 N. C. 612. State V. Wagstaff, from Person ; assault with deadly weapon with intent to kill, resulting in death; defendant appealed; new trial; 235 N. C. 69. State V. Warren, from Alamance; larceny; defendant appealed; new trial; 235 N. C. 117. State V. Washington, from Mecklenburg ; manslaughter ; defend-ant appealed; new trial; 234 N. C. 531. State V. Wilson, from Gaston ; nonsupport, etc. ; State appealed ; appeal dismissed; 234 N. C. 552. Dismissed on Motion State V. Terry, from Rockingham. SPRING TERM, 1952 State V. Birchfield, et al., from Graham; assault with deadly weapon with intent to kill, etc. ; defendants appeal ; no error 235 N. C. 410. State V. Bryant, from Sampson; larceny; defendant appealed; no error; 235 N. C. 420. State V. Cuthrell, from Camden; houseburning ; defendant ap-pealed; new trial; 235 N. C. 173. Stae V. Goodson, et al., from Buncombe; simple assault; defend-ants appealed; new trial; 235 N. C. 177. State V. Leonard, from Durham; perjury; Opinion not handed down. State V. McCoy, from Scotland ; murder first degree ; Opinion not handed down. State V. McCoy, from Johnston ; violating liquor laws ; defendant appealed; new trial; 235 N. C. 251. State V. Miller, from Beaufort; murder first degree; defendant appealed; appeal dismissed; 235 N. C. 394. 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 15 State V. Mills, from McDowell ; violating liquor laws ; defendant appealed ; no error ; 235 N, C. 226. State V. Morris, from Randolph ; violating motor vehicle laws ; defendant appealed; appeal dismissed; 235 N. C. 393. State V. Murphy, from Sampson; violating liquor laws; defend-ant appealed; no error; 235 N. C. 503. State V. Needham, from Stokes ; murder first degree—arson ; de-fendant appealed; reversed; 235 N. C. 555. State V. Parker, from Johnston ; violating liquor laws ; defendant appealed ; affirmed ; 235 N. C. 302. State V. Peacock, et al., from Johnston; violating liquor laws; Opinion not handed down. State V. Raynor, from Washington ; (1) public drunkenness, (2) resisting arrest ; defendant appealed ; (1) no error, (2) judg-ment arrested; 235 N. C. 184. State V. Reeves, from Buncombe ; rape ; defendant appealed ; no error; 235 N. C. 427. State V. Roman, from Davidson ; murder first degree ; defendant appealed; no error; 235 N. C. 627. State v. Scoggins, from Wake ; violating parking meter ordi-nance ; defendant appealed ; Opinion not handed down. State V. Scoggins, from Wake; violating parking meter ordi-nance; defendant aDpealed; Opinion not handed down. State V. Sears, from Cumberland ; assault with intent to rape ; defendant appealed; no error; 235 N. C. 623. State V. Simmington, from Guilford ; violating motor vehicle laws ; defendant appealed ; affirmed ; 235 N. C. 612. State V. Taylor, from Forsyth; violating liquor laws; defendant appealed ; Opinion not handed down. State V. Williams, from Wake; larceny; defendant appealed; no error; 235 N. C. 429. State V. Williams, from Guilford ; murder second degree ; defend-ant appealed ; no error ; 235 N. C. 752. State V. Wood, from Cumberland ; carnal intercourse ; defendant appealed; no error; 235 N. C. 636. Dismissed on Motion State V. Morris, from Beaufort. State V. Miller, from Beaufort. State V. Little and Mangum, from Cumberland. 16 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. SUMMARY Affirmed on defendant's appeal 77 affirmed on State's appeal 3 New trial or reversed on defendant's appeal 46 New trial on State's appeal 1 Error and remanded 4 Judgment arrested 3 Judgment vacated 1 Appeals dismissed 10 Dismissed on Motion 10 Opinion not handed down 6 Fees Transmitted by Attorney General to State Treasurer Since February 1950, Through February Term, 1952 State V Faulk $ 10.00 State V Sunimerlin 10.00 State V Bowman 10.00 State V Lamm 10.00 State V Holbrook 10.00 Statt V Worrell 10.00 State V Ray 10.00 State V Pennell 10.00 State V Hicks 10.00 State V Wiggins 10.00 State V Sumner 10.00 State V Lambe 10.00 State V Smith 10.00 State V Sawyer 10.00 State V Campo 10.00 State V Jamieson 10.00 State V Correll 10.00 State V Phillips 10.00 State V Cottle 20.00 State V Barber 10.00 State V Best 10.00 State V Gibbs 10.00 State V Hovis 10.00 State V Rhodes 10.00 State V Goins 10.00 State V Foy 10.00 State V Artis 10.00 State V Alston 10.00 State V Buchanan 10.00 State V White 10.00 State V Edwards 10.00 State V Hicks 10.00 State V Carter 10.00 State V Slate 10.00 State V Cobb 10.00 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 17 State V Sipes 10.00 State V McFarland 10.00 State V Bovender, et al 30.00 State V Roy 10.00 State V Fuqua 10.00 State V Jenkins 10,00 State V McLean 10.00 State V Cottle 10.00 State V Cottle, et al 10.00 State V Holland 10.00 State V Tew 10.00 State V Dobbs 10.00 State V Brock 10.00 State V Brock, et al 20.00 State V Kirkman 10.00 State V Meadows 10.00 State V Minton 10.00 State V Raynor 10.00 State V Brannon 20.00 State V Mills 10.00 State V Morris 10.00 State V Birchfield, et al 30.00 State V Parker 10.00 State V Wood 10.00 State V Murphy 10.00 State V Bryant 10.00 State V Sears 10.00 State V Simmington 10.00 $700.00 SUMMARY OF ACTIVITIES Staff Personnel Since the publication of the Biennial Report of 1948-50, a vacancy oc-curred in this office by the death of Assistant Attorney General Hughes J. Rhodes on the 16th of May, 1951. From the time of his appointment in July of 1942, until his untimely death. Assistant Attorney General Rhodes served this Department and the State in a most unselfish and highly efficient manner, and, in his passing, the State lost a valuable servant and official. The vacancy caused by the death of Assistant Attorney General Rhodes was filled by the appointment of Claude L. Love, of Asheville, on the 16th of August, 1951. Mr. Love served throughout the remainder of the biennium. 18 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. On the 16th of October, 1951, Assistant Attorney General Peyton B. Abbott resigned to enter the private practice of law, and on the 17th of October, 1951, Harry W. McGalliard was appointed to fill the vacancy caused by this resignation, and he served in this capacity throughout the remainder of the biennium. Effective the 30th of January, 1952, Assistant Attorney General James E. Tucker resigned to enter the private practice of law, and Dr. I. Beverly Lake, of Wake Forest, was appointed to fill this vacancy, and he served in this capacity throughout the remainder of the biennium. On the 1st of March, 1952, Clifton W. Beckwith resigned his position as Director of the Division of Legislative Drafting and Codification of Statutes and as Director of the Division of Statistics, and Charles G. Powell, Jr., a member of the staff of the Department, was appointed to succeed him. Mr. Powell served in this capacity throughout the remainder of the biennium. Edward B. Hipp was appointed to the position of Revisor of Statutes to fill the vacancy created when Mr. McGalliard was appointed Assistant Attorney General. John R. Jordan, Jr., member of the staff, resigned and was succeeded on the 15th of March, 1951, by Charles G. Powell, Jr., and upon the vacancy caused by the appointment of Mr. Powell to succeed Mr. Beck-with, resigned, Robert L. Emanuel was appointed as a member of the staff on the 1st of July, 1952. Walter F. Brinkley, member of the staff, resigned to enter the private practice of law and was succeeded by the appointment of Robert B. Broughton on the 1st of July, 1951, who served in this capacity throughout the remainder of the biennium. Samuel Beh-rends, Jr., was appointed on the 1st of June, 1952, as a member of the staff to succeed Mr. Hipp when he was appointed to the position made vacant by Mr. McGalliard. Assistant Attorneys General T. W. Bruton, Ralph Moody, and John Hill Paylor served throughout the biennium. The secretarial staff of the office serving most of the time during the biennium is as follows: Mrs. Rennie R. Dupree, Miss Elizabeth Flournoy, Mrs. Emma Lee Jackson, Mrs. T. P. Norwood, Miss Elizabeth Kelly, Miss Lillian Turner, Mrs. Millicent S. Kincaid, Mrs. Charles W. Purcell, and Mrs. Myrtle K. Pope. Office Conferences and Consultations With State Officers AND Departmental Officials Under the provision of the State Constitution, Article III, Section 14, the Attorney General is made, ex officio, legal adviser of the Executive Department. G. S. 114-2 requires the Attorney General to represent all State institutions, including the State's prison, whenever requested so to do by the official head of such institution, and to give, when required, his opinion upon all questions submitted to him by the General Assembly, or either branch thereof, or by the Governor, Auditor, Treasurer, or any other State officer. The cooperative relations existing between the Attorney General's office and the heads of all the State's agencies and departments, as well as vnih other State officers, have made it very pleasant to perform the duties 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 19 thus prescribed by the Constitution and the statute. Nothwithstanding this happy relationship, the conferences and advice to various State officials have necessarily taken a great deal of the time of the Attorney General and his staff. The expanding activities of State Government have given rise to increasing problems involving the application of new laws as well as the construction of old statutes. Many questions arising in connection with the State's affairs have been presented to the office, most of which have been settled satisfactorily, and litigation minimized. Appreciation is expressed to Governor Scott and all other State officials and heads of various State departments for the consideraion shown us dui'ing this biennium. It has been a source of great pleasure to all the members of the staff of this office to work in coopei'ation with these State officials. In the interest of economy, it will be noted that official and advisory opinions are not set out in full in this Report. Selected opinions have been digested and only these digests are printed. Should there be any demand for an exact copy of any of the opinions digested, the same may be secured by a request to this office stating the subject matter and the date of the opinion. Summary of the Constitutional and Statutory Duties OF THE Attorney General To make a report upon all the activities of the Attorney General and this Department, it would be necessary to g'o into greater detail than is possible in this summary. References are herein given to provisions of the Constitution of North Carolina, and laws enacted in pursuance thereto, prescribing the duties and functions of the Attorney General. As legal adviser to the Council of State and as a member of the various boards and commissions hereinafter listed, the participation of the Attor-ney General in the consideration of matters coming before meetings of the Council of State and such boards and commissions will be disclosed in the reports made therefrom. It is not required that they should be further detailed in this Report. The Constitution of North Carolina, Article III, Section 13, provides that the duties of the "Attorney General shall be prescribed by law." Pursuant to this section, the General Assembly has vested in the Depart-ment of the Attorney General the following powers, obligations, and duties : G. S. 114-2. "Duties.—It shall be the duty of the Attorney General— "1. To defend all actions in the supreme court in which the state shall be interested, or is a party; and also when requested by the governor or either branch of the general assembly to appear for the state in any court or tribunal in any cause or matter, civil or criminal, in which the state may be a party or interested. "2. At the request of the governor, secretary of state, treasurer, auditor, corporation commissioners, insurance commissioner or super-intendent of public instruction, he shall prosecute and defend all suits relating to matters connected with their departments. "3. To represent all state institutions, including the state's prison, whenever requested so to do by the official head of any such institution. 20 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. "4. To consult with and advise the solicitors, when requested by them, in all matters pertaining- to the duties of their office. "5. To give, when required, his opinion upon all questions of law submitted to him by the general assembly, or by either branch thereof, or by the governor, auditor, treasurer, or any other state officer. "6. To pay all moneys received for debts due or penalties to the state immediately after the receipt thereof into the ti-easury." To institute actions to recover taxes due under the Revenue Act (G. S. 105-239), and to approve all tax refunds made by the State (G. S. 105-407), To enforce the statutes relative to monopolies and trusts (G. S. 75-9 to 75-15). To institute actions to prevent tdtra vires acts on the part of corpora-tions, or to dissolve corporations for certain offenses (G. S. 55-47, 55-124, 55-126). To institute quo warranto proceedings to oust persons who have usurped, who unlawfully hold, or who have forfeited public offices, and to begin actions to protect State lands (G. S. 1-515). To see that the solicitors prosecute violations of the act relating to the practice of medicine (G. S. 90-21). To enforce charitable trusts (G. S. 55-47). To prescribe the rules of practice for land registration under the Tor-rens Act (G. S. 43-3). To institute proceedings for the dissolution of fratei'nal insurance so-cieties (G. S. 58-297 to 58-298). To appear on behalf of the court or other officers on appeal in contempt proceedings (G. S. 5-3). To investigate extradition cases, at the request of the Governor (G. S. 15-58). To institute actions to enforce the rulings and orders of the Utilities Commission, and to represent said Commission in the enforcement of intra-state rates before the Interstate Commerce Commission and in Federal or State courts (G. S. 62-63 and 62-6). To give advice to the State Board of Elections as to the form of ballots (G. S. 163-141). To institute action against persons, firms or corporations who violate the terms of the act regulating the quality of agricultural seeds. This duty may be delegated to the attorney of the county or city in which the viola-tion occurred (G. S. 106-284). To approve deeds and grants to the State of property given to, or purchased by, it for park purposes (G. S. 113-34). To collect from inmates of State institutions the cost of their upkeep, provided they are able to pay (G. S. 143-124). To approve the grant of easements by State institutions to public-service corporations (G. S. 143-151). To act as legal adviser and institute necessary condemnation proceed-ings for the North Carolina Cape Hatteras Seashore Commission (Ch. 257, P. L. 1939). To enforce rules and regulations adopted by the Commissioner of Labor relating to safety devices (G. S. 95-13). To witness the burning of cancelled State bonds and coupons (G, S. 142-13), 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 21 To collect the delinquent taxes due the State Board of Health (G. S. 130-13). The Attorney General is a member of, or adviser to, the following boards, councils, and commissions: Legal adviser to the Executive Department (Const., Art. Ill, S. 14) ; member of the State Board of Assessments (G. S. 105-273), of Advisory Board of Paroles (G. S. 148-50), of State Banking Commission (G. S. 53-92), of Board of Public Buildings and Grounds (G. S. 129-2), of Municipal Board of Control (G. S. 160-195), of the Eugenics Board (G. S. 35-40) ; North Carolina Armory Commission (G. S. 143-229), State Art Society (G. S. 140-1), and the Judicial Council (Chapter 1052, Session Laws of 1949). State Bureau of Investigation There is included in this volume a report of the State Bureau of Inves-tigation made by Mr. James W. Powell, the Director of the Bureau. As appears from this report, the activities of the Bureau have been greatly increased. Attention is diiected to the report made by Mr. Powell for a detailed statement of the activities of this Bureau. Advisory Opinions to Local Officials The Department has continued the historic practice of providing, upon requests of county, city and other local official bodies, advisory opinions upon numerous questions which have arisen in the administration of local government. The Institute of Government publishes the magazine "Popular Govern-ment" which has for several years carried a digest of opinions of the office given to local units of government. This service has tended to unify prac-tice and procedure with local governments and has made available to them the digest of the opinions of the office on subjects in which they are interested. If space permitted, it would be my desire to publish in this Report a full copy of all the digests of opinions of this office. On account of the limitations of the Report, there is herewith published a number of digests of selected opinions. We have every reason to believe that this advisory service is appre-ciated by our local officials and that it has a tendency to standardize the practices in various localities of the State in the construction and carry-ing out of statutory provisions. Tort Claims Against State Department, Institutions AND Agencies The 1951 Legislature, by Chapter 1059, waived to a certain degree the States Governmental immunity and authorized the institution of Tort Claims against all departments, institutions and agencies of the State for damages caused by negligent acts of a State employee while acting within the scope of his employment. This Act imposed the duty upon the Attorney General to represent all departments, institutions and agencies of the State, other than the State Highway and Public Works Commission. 22 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. The following table reflects the activities of the Attorney General's office with regard to this responsibility: Tort Cases disposed of 226 Tort Cases pending for trial before Industrial Commission 80 Tort Cases under investigation for settlement 52 Tort Cases pending in Superior Court 2 Using the State Board of Education as an example, we find that the 1951 General Assembly authorized a total of 211 claims against that Board. These claims had a total claim value of $100,815.00. At the present time 142 of these claims have been disposed of either through settlement or court action at a cost of $37,440.00. Nineteen of the authorized claims amounting to $6,835.00 were denied. This leaves 50 of the original claims with a total amount of $14,718.00, left for disposition. During the 1951-52 period and up to the present date 75 additional claims have been filed against the State Board of Education in the amount of $21,269.00. Seventy of these claims have been disposed of either through settlement or court action at a cost of $15,300.00. There are five of these cases pending now amounting to $5,966.00. A large number of claims against other agencies of the State have been disposed of, but a break-down on this activity is not available. There are, however, at the present time approximately ten cases set for hearing against other departments, institutions and agencies, totaling $41,161.03. Hearings on tort claims were conducted in nearly every county in the State and it was necessary for a member of the Staff of this office to make personal appearances in most cases. Since the State has waived its tort immunity and has established the Industrial Commission as a per-manent court to hear claims as they arise, it is expected that the number of tort claims will steadily increase in the future. Division of Legislative Drafting and Codification of Statutes No change was made in the biennium as to the duties of this office in assisting members of the General Assembly and the State and local officials in the drafting of legislation. One personnel change was made, however, when Clifton W. Beckwith, Director of this Division since 1945, resigned and was succeeded by Charles G. Powell, Jr. The 1951 Session of the General Assembly made the usual calls upon this office for bill drafting service and approximately 1850 bills were drafted for consideration by the Legislature. Many of these bills were very important ones and had to be written and rewritten many times before pvit into final shape. This is a service in which the entire staff of the Attorney General's office participates. Appreciation is expressed for Joint Resolution No. 33, adopted by the General Assembly of 1951, with respect to this work. The recompilation of the General Statutes is proceeding on schedule. Volumes II and III of the 1943 Statutes have been recompiled and work will begin on Volume I at the conclusion of the 1953 General Assembly. 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 23 It is also hoped that during the biennium work can be done on the Index to the General Statutes which will bring that volume up to date with the recompiled volumes. General Statutes Commission—Revisor of Statutes In 1947 the General Assembly created the position of Revisor of Statutes on the staff of the Attorney General to serve as ex officio Secretary of the General Statutes Commission and to carry out the duties of the Division of Legislative Drafting and Codification of Statutes relating to continuous statutory research and correction. The primary purpose in creating this position was to have a full-time research lawyer to work with the General Statutes Commission on the ambiguities, conflicts, duplications and other imperfections in the form and expression of the statutes, and to consider suggestions submitted from out-side sources for improvement in the statutes. It soon became apparent that many of the changes which were needed in the General Statutes amounted to more tiian mere imperfections of form and expression and that work was needed on substantive revision of the statutes. In 1951 the General Assembly gave the General Statutes Commission the additional duty of recommending the enactment o? such substantive changes in the law as the Commission might deem advisable. Since that time, the principal work of the General Statutes Commission and the Re-visor of Statutes has been in the field of substantive law revision. Sevei'al recommendations for substantive changes have already been made to the General Assembly by the Commission and bills have been enacted com-pletely rewriting the laws relating to attachment and garnishment, judicial sales, execution sales, sales under a power of sale and examination before trial. The Commission will make recommendations to the 1953 General Assem-bly for major revisions of the laws relating to conveyances by devisees and heirs, attachment and garnishment of safe deposit boxes, execution, revo-cation and probate of wills, inst?'uments to secure future advances, regis-tration of mortgages, service of process by publication and survivorship in joint bank accounts. A general revision of the entire Corporations Chapter is being undertaken through a special Corporation Law Drafting Committee composed of corporation law experts from the three law^ schools, and it is hoped that the first of the recommendations in this field will be ready for the 1953 General Assembly. The present Revisor is Edward B. Hipp, who succeeded Harry McGal-liard when the latter was appointed Assistant Attorney General in Octo-ber, 1951. The present members of the General Statutes Commission, to-gether with the sources of their appointments, are: Messrs. Robert F. Moseley, Chairman, Greensboi'o, N. C, (N. C. State Bar Pres.), Malcolm McDermott, Vice Chairman, Duke University Law School, (Dean, Duke Univ. Law School), Luther E. Barnhardt, Concord, N. C, (Lt. Gov.), Henry A. McKinnon, Lumberton, N. C, (N. C Bar Ass'n. Pres.), Frank W. Hanft, University of N. C. Law School, (Dean, U. N. C. Law School), J. Spencer Bell, Charlotte, N. C, (Governor), Robert Lassiter, Jr., Charlotte, 24 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. N. C, (Speaker of the House), William Joslin, Raleigh, N. C, (Governor), William C. Soule, Wake Forest Law School, (Dean, Wake Forest Law School). This Commission, as required by law, will make a separate Re-port to the General Assembly covering in detail the full extent of its ac-tivities. Criminal Cases of Specl\l Interest State V. CuthreU, 233 N. C. 27^ and 235 N. C. 173 This was a prosecution under G. S. 14-62 for wantonly and wilfully aiding, counseling and procuring another person to burn a building or erection used in carrying on a trade or manufacture. In the first opinion the court held that the defendant's plea of not guilty placed the burden upon the State to prove beyond a reasonable doubt (1) the fire, (2) that it was of incendiary origin, (3) and that defendant was connected with the crime. The Supreme Court sent the case back for a new trial because in his testimony the sheriff of the county expressed the opinion that the fire was of incendiary origin. On the second trial the defendant raised the question whether the structure involved was "a building" because the evi-dence disclosed that the structure was not quite complete although it had been used for a business purpose on one occasion. The Supreme Court again sent the case back for a new trial on ground that under the de-fendant's plea of not guilty it was incumbent upon the State to prove beyond a reasonable doubt that the structure in question was a building; and that under the circumstances of this case an issue of fact to be de-termined by the jury was raised. This case brings very pointedly to the attention of the Bench and Bar the fact that G. S. 14-62 needs to be amended. State V. Parker, 23i N. C. 236 and 235 N. C. 302 In this case the defendant was arrested on a warrant issuing out of the Recorder's Court of Johnston County charging the defendant with un-lawful possession of intoxicating liquor upon which taxes due the United States Government and the State of North Carolina had not been paid. When the case came on for hearing the defendant demanded a jury trial. Under the practice in the Recorder's Court, this automatically worked a continuance of the case. At the next term of the Superior Court of John-ston County, the defendant was indicted by a grand jury on four counts as follows: (1) conspiracy to unlawfully possess intoxicating liquor upon which taxes due the United States and the State of North Carolina had not been paid; (2) unlawful possession of ninety-six gallons of intoxicat-ing liquor upon which taxes had not been paid; (3) unlawful possession for the purpose of sale of intoxicating liquor upon which taxes had not been paid; (4) illegal transportation of liquor. The defendant was ac-quitted on the count of illegal transportation and convicted on the other three counts. He appealed to the Supreme Court from the judgment pro-nounced on the verdict. The Supreme Court reversed the conviction on the count of conspiracy, affirmed the conviction on the count of illegal possession for the purpose of sale and sent the case back to the Recorder's 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 25 Court for trial on the count of illegal possession of intoxicating liquor, since that court had first acquired jurisdiction on that count. The case was also sent back to the Superior Court of Johnston County for a new sentence on the other count. The case came on for hearing in the Recorder's Court before the Superior Court of Johnston County again convened. At the trial in the Recorder's Court the defendant was acquitted on the count of illegal possession. When the case was called in the Superior Court for the purpose of pronouncing judgment on the count of illegal possession for the purpose of sale, the defendant pleaded former jeopardy and former acquittal. These pleas were overruled and the defendant was sentenced to a term on the roads. Upon appeal to the Supreme Court of North Caro-lina the judgment was affirmed. The defendant now seeks a writ of cer-tiorari from the Supreme Court of the United States to have that court review the judgment of the Supreme Court of North Carolina. The appli-cation for certiorari will be heard at the October 1952 term of the Supreme Court of the United States. State V. Williams, 235 N. C. 4^9 This was an indictment in the Superior Court of Wake County, charging the felony of larceny. The jury returned a verdict of "guilty of larceny of property of the value in excess of $50." The defendant was sentenced for a term of eighteen months on the roads. On appeal to the Supreme Court it was admitted by the defendant that the judgment was within the limits of the punishment allowed for misdemeanors, but contended that under the verdict he had been convicted of a felony and would therefore lose his citizenship under the provisions of Article 6, Section 8, of the State Constitution. The Supreme Court held that notwithstanding the ambiguity in the verdict and the fact that the judge in his charge had stated to the jury that the larceny of personal property to the value of more than $50 is a felony, the law is that under G. S. 14-72 the offense is a felony only in case the value of property shall exceed $100. Therefore, it was held that the defendant had suffered no loss of citizenship. State V. Roman, 235 N. C. 627 This was a prosecution upon a bill of indictment charging the defendant with murder in the first degree in the killing of Mrs. Beulah Miller Hin-shaw in Davidson County. The evidence in the case was all circumstantial but it pointed unerringly to the guilt of the defendant, a Negro man about thirty years of age. The victim was a white woman approximately sixty-five years of age. The defendant was employed at an ice plant, working at night. He left the plant around 9 o'clock on a Sunday night and returned around 11:30. During the time the defendant was absent from the plant, Mrs. Hinshaw was brutally murdered and raped. The trial jury was selected from a special venire ordered from Guilford County. Four mem-bers of the Negro race sat on the jury. The Supreme Court affirmed the conviction and the defendant has been executed according to law. 26 biennial report of the attorney general [vol. Civil Cases of Special Interest North Carolina Art Society et al. v. Bridges, State Aiiditor, 235 N. C. 125 Chapter 1168, Session Laws of 1951 provides that the purchase of any works of art acquired under the provisions of Chapter 1097, Session Laws of 1947, shall be approved by the Board of Directors of the Executive Committee of the North Carolina State Art Society and appraised by the Director or Chief Curator of the National Gallery of Art, Washin^on, D. C, as to value, fitness and desirability. The Art Society arranged to purchase certain valuable works of art in conformity with the provisions of the 1947 Act, but the Director and Chief Curator of the National Gal-lery of Art declined to appraise said purchases as to value, fitness and desirability. Subsequently, the Commission was able to secure the sei-vices of Dr. William R. Valentiner, Director of the Los Angeles County, Cali-fornia Museum of Art, to appraise said paintings. The State Auditor de-clined to issue his warrant in payment of said works of art upon the ap-praisal of Dr. Valentiner, taking the position that the provisions of Chap-ter 1168, Session Laws of 1951, are mandatory. The Superior Court of Wake County held that the legislative intent in passing the statute was to guarantee a competent appraisal of the works of art before public funds could be expended in payment thereof and that it was not the intent of the legislature to require an appraisal by any particular individual or by the holder of any particular position in the art world. This decision of the Superior Court was affirmed by the Supreme Court, the court holding that the pi'ovisions of the statute in question are directory and not mandatory. School District Committee v. Board of Education, 235 N. C. 212 This was a civil action for the purpose of enjoining the Board of Edu-cation of Gates County from putting into effect a program for the con-solidation of school districts in that county. In Gates County two local bond taxing districts have been created under the provisions of Chapter 279, Public Local Laws of 1937, as amended by Chapter 149 of the Pub-lic Local Laws of 1947. This act as originally passed applied only to Buncombe County, the 1917 act made the 1937 act applicable to Gates County. The Superior Court held that a district created under the above statutes is a municipal corporation and cannot be consolidated with other school districts. The State Board of Education requested the Attor-ney General to file a brief in the case amicus curiae. This was done. In the brief the Attorney General pointed out that all school districts in the State were were abolished by Section 4, Chapter 562, Public Laws of 1933, except for the one purpose of paying the then existing school in-debtedness. This same act authorized the State School Commission (now the State Board of Education), with the approval of the County Board of Education, to create new districts for administrative purposes only. In the brief it was pointed out that districts created under the 1933 act exist for administrative purposes only, while districts created under the 1937 act as made applicable to Gates County by the 1947 act, exist for the sole purpose of creating an indebtedness to pay for school buildings. There- 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 27 fore, the administrative district containing the area existing for the sole purpose of paying the school indebtedness, may be consolidated with other non-tax territory. The Supreme Court agreed with the position taken by the Attorney General and reversed the decision of the Superior Court. Watkins v. Shaw, Commissioner of Revenue, 234 N. C. 96 As stated by the Court, the question presented in this case was as follows : "Should the cash value of United States Savings Bonds, Series E, issued and made payable to the purchaser or his wife, as co-ovniers, be included in the estate of the purchaser for inheritance tax purposes, where the purchaser expended his own funds in the acquisition of the bonds and kept them in a place accessible to both the purchaser and his wife, but made no inter vivos gift of the bonds to his wife?" Among the provisions printed on the face of the bonds in question was one to the effect that the bond was issued piirsuant to Treasury Depart-ment Circular No. 653, Second Revision, which circular provided in part: "The bonds shall be subject to estate, inheritance, gift or other excise taxes, whether Federal or State . . ." Another Treasury Department Circular provision provided in part: ". . . If either co-owaier dies without the bond having been presented and surrendered for payment to or authorized reissue, the surviving owner will be recognized as the sole and absolute ovmer of the bond and payment or reissue, as though the bond were registered in his name alone, will be made only to such survivor. . . ." The Court held that in view of the Treasury Department Regulations and the inheritance tax statutes of this State, specifically G. S. 105-2, the title to the bonds in question passed by succession to the wife, and the cash value thereof should, upon the death of the purchaser, who was the husband, be included in his estate for inheritance tax purposes. Wiscassett Mills Comqxtny v. Shaiv, Commissioner of Revenue, 235 N. C. H Wiscassett Mills Company donated certain real estate for public school and hospital purposes. It was admitted that the land donated to the hospital was acquired in 1898 for the sum of $278.40 and that the reason-able market value of the land in 1946 on the date of the gift was $23,500. It was admitted also that the land donated to the School Board was ac-quired in 1898 for the sum of $225.00 and that the reasonable market value of the land in 1947 on the date of the gift was $6,000. It was further admitted that both gifts were deductible for income tax purposes. The sole question presented in this case was whether the value of the gifts for the purposes of the deduction should be fixed as of the date of the acquisi-tion in 1898, as contended by the Commissioner of Revenue, or as of the date of the gift, as contended by the Wiscassett Mills Company. It was held in the Superior Court that "when a contribution is made in property rather than in cash, the amount of the gift, and the amount of the deduc-tion, is the fair market value of the property at the time of the gift," and this was affirmed by the Supreme Court on appeal. 28 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. A second question presented in this case related to the deductibility of a contribution made by the Mills Company to a municipality, but it is of little future importance inasmuch as the General Assembly, since the date of the contribution in question, has amended the Revenue Act to permit deductions of gifts to municipal corporations. Watson Industries v. Shaw, Commissio7ier of Revenue, 235 N. C. 203 In the first cause of action in this case, Watson Industries, hereinafter called the taxpayer, sought to recover use taxes paid under protest. The taxpayer had purchased from an out-of-state corporation the necessary fabricated parts for the construction of four radio towers. The Commis-sioner of Revenue assessed a use or excise tax against the total purchase price of such parts at the rate of three per cent. Taxpayer paid the tax so assessed in excess of $60, under protest. As set out in the agreed statements of facts, the taxpayer purchased "articles and items of tangible personal property costing $26,855.40, which when joined together, connected, assembled, and erected at plaintiff's loca-tion in Wilson, resulted in four radio towers, complete v^^ith earth anchors and mounting plates. Said articles and items, although constituting four allotments or four groups of articles or items—one group for each tower — were designed to form and did form four radio towers, and the purchase was made as four radio towers." The taxpayer contended that it bought four "single articles", namely, four radio towers, and that inasmuch as the maximum use tax levied with respect to a "single article" is $15.00, a total tax of only $60.00 should be assessed. The Commissioner of Revenue contended that the articles and materials which made up the four radio towers would not constitute four "single articles" and that quite aside from the question as to whether or not each radio tower constituted a single article, the articles or parts purchased by the taxpayer for use in the erection of the radio tower constituted tangible personal property entering into a structure in this State and, therefore, were subject to a straight 3% use tax, pursuant to G. S. 105-187. It was not contended by the taxpayer that any single part entering into a radio tower cost in excess of $500.00. It was held in the Superior Court that each radio tower was a single article and subject to a maximum use tax of $15.00 each. This judgment was reversed in the Supreme Court and it was held that the materials entering into and becoming a part of the radio tower were subject to a straight S% use tax pursuant to the provisions of G. S. 105-187 above referred to. In a second cause of action in the same case, the question was presented as to whether the rentals of radio transcriptions for broadcast by radio stations in this State were subject to the use tax. It was held in the Superior Court that such transcriptions were subject to the use tax, but this judgment was reversed in the Supreme Court where it was held that the furnishing of radio transcription service did not give the radio stations "possession of tangible personal property" which would be essential in such a case before the use tax would attach. DIGEST OF OPINIONS TO GOVERNOR State Property Fire Insurance Fund; Payment of Loss of Buildings Which Will Not Be Rebuilt 15 December 1950 G. S. 58-191, which sets up the State Property Fire Insurance Fund, is intended to provide funds to restore property which has been destroyed ^y fire in the event the State agency having the same in charge finds it necessary or desirable to restore the property. In the event the funds are not to be used for this purpose, no payment should be made from the insurance fund to the agency having such property in charge. State Board of Education; Membership of Board; Failure of Joint Session of General Assembly to Confirm Appointment of Successors; What Constitutes Vacancy 19 April 1951 If the term of the incumbent to an office which is to be filled by an appointment by the Governor by and with the consent of the Senate has expired, but he still continues to discharge his duties, there is no such vacancy in the office as will authorize the Governor to fill it by appoint-ment of a successor without the consent of the Senate. Publicly Owned Vehicles; Violation—Misdemeanor and Removal from Office 11 June 1951 Violation of Statute against public use of state-owned vehicles is a mis-demeanor and subjects violator to removal from office. Extradition; Waiver; Expense in Felony Charge; State v. Mack Cottrell—State of Oregon 20 June 1951 The State of North Carolina pays th? expenses of an extradition agent only in those cases where the crime charged is that of a felony. In such cases, the traveling expenses of the extradition agent are to be the actual traveling expenses necessarily incurred by him for travel on common car-rier. The extradition statute does not allow expenses for a guard, nor does it allow telephone and telegraph long-distance telephone calls. North Carolina Building Code; Authority to Make Changes in Building Code 3 March 1952 Under the provisions of G. S. 143-139, the Building Code Council is authorized to make changes in the Building Code provided such changes 30 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. are less string^ent than those set forth in the Building Code adopted by the statute. There is no limitation provided by the statute as to the num-ber of changes which could be made by the Building Code Council provided they are less rigid and less stringent than those set forth in the Building Code. All such changes must be approved by the Insurance Commissioner. Executive Budget Act; Authority of the Director to Delegate Powers 12 June 1952 Under the provisions of G. S. 143-29, the Governor, as Director of the Budget, has authority to delegate all powers given him under the Executive Budget Act to any person or persons designated or appointed by him from time to time in writing. The only exception to this authority to delegate his powers is that the Budget Message must be presented by him to the General Assembly. The Governor is not authorized to delegate this power and duty to any other person. DIGEST OF OPINIONS TO SECRETARY OF STATE Corporations; Foreign Corporations Purchasing Notes and Mortgages Upon Real Estate Located in This State; Requirement of Domestication 21 August 1950 Foreign corporations purchasing notes and mortgages upon real estate located in this State and who, by contract with a bank or other corporation authorized to do business in this State, have such loans serviced through such bank or corporation in this State by collecting the installments of principal and interest, keeping the property insured, reporting on the necessity for repairs, and assisting with foreclosures, are not required to domesticate in this State. Secretary of State; Trademarks; Refusal of Registration of Similar Trademarks; Trademark "Gold Medal" 18 April 1951 G. S. 80-6 provides that it shall not be lawful for the Secretary of State to register for any person any label, trademark, term or design that is in the identical form of any other label, trademark, term or design thereto- •U] BIENNIAL REPORT OF THE ATTORNEY GENERAL 31 fore filed by any other person. The provision even prohibits a label or trademark of near resemblance which would be calculated to deceive or that would be mistaken for the original trademark so registered. Foreign Corporations; Increase in Capital Stock With No Par Value 2 October 1951 Foreign corporations who increase their capital stock which has no par value must pay the tax required by G. S. 55-118 based on a valuation of $100 per share. See G. S. 55-77. Foreign Corporations; Domestication; Huckabee Transport Corporation 16 August 1951 A foreign corporation engaged exclusively in interstate commerce is not required to domesticate in this State. DIGEST OF OPINIONS TO STATE AUDITOR Law Enforcement Officers' Benefit and Retirement Fund; Additional Cost of $2.00 to Be Taxed in Bills of Cost in Criminal Cases; Judgment That the Defendant Pay the Costs for Which the County Is Liable 29 February 1952 Where an order is made that the defendant pay the costs for which the county is liable, the item of $2.00 which is paid to the treasurer for the benefit of the Law Enforcement Officers' Benefit and Retirement Fund must also be included in the bill of costs paid and collected. DIGEST OF OPINIONS TO STATE TREASURER State Bonds Which Have Been Lost, Stolen, or Destroyed; Provision for Settlement or Replacement 5 June 1951 When it has been satisfactorily shown to the State Treasurer and the Governor and Council of State that bonds of the State have been lost, destroyed, or stolen, settlement may be made therefor or new bonds issued 32 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. in lieu thereof, provided an indemnity bond is furnished to the State Treasurer in double the amount of said lost, destroyed, or stolen bonds. See G. S. 98-19. State Treasurer; Sinking Fund Investments; Authority to Invest Sinking Funds and Retirement Funds in Housing Authority Bonds 17 July 1951 Under G. S. 157-25, the State Treasurer is authorized to invest sinking funds and Retirement funds in Housing Authority bonds, provided he uses reasonable care in selecting such securities. School Vouchers; Signatures by Machine; Use of Signature of Vice ! Chairman During Illness of Chairman of City Board of Education 11 December 1951 School vouchers must be signed in the name of the Chairman of the School Board when using the check writing machine unless there is some local act authorizing- the appointment of a Vice Chairman to perform duties in the absence of the Chairman. Personnel Act; Accumulation of Sick Leave for State Employees 3 April 1952 Sick leave granted to State employees is prescribed as ten days for each calendar year, accumulative from year to year beginning the 1st of Octo-ber, 1925. DIGEST OF OPINIONS TO STATE SUPERINTENDENT OF PULIC INSTRUCTION Municipal Corporations; Abandoned Street; Use of For Other Than Street Purposes 14 August 1950 G. S. 136-96 provides that any road or street not actually opened and used within twenty years after dedication shall be conclusively presumed to have been abandoned. However, the dedicator or those claiming under him must record in the office of the Register of Deeds a declaration of withdrawal. SHEETS v. WALSH, 215 N. C. 711. Following abandonment title to the street reverts to the original owner, and in the absence of evidence to the contrary, there is a presumption that the fee remains in the abutting proprietor. WHITE v. R. R., 113 N. C. 61L 31] biennial report of the attorney general 33 Schools; Buildings; Sites; Right to Build on Site Not Owned by School Unit 17 January 1951 G. S. 115-88 provides that county and city boards of education shall make no contract for the erection or repair of any school building unless the site on which it is located is owned by said board. Therefore, it is thought that the Board of Education of Graham County could not legally construct a school building on property not owned by said Board and which is located in a National Forest owned by the Federal Government. County Board op Education; Number of Board Members Necessary for a Quorum 20 March 1951 A majority of the members of a county board of education constitute a quorum for the transaction of business. When a board is composed of five members and one member resigns, the remaining four members con-stitute a legal board for the transaction of business. Such board may take any legal action which by law it could take if the action is supported by a majority of the membership of the board at the time such action is taken. If there should be a tie vote, there would be no way of breaking the tie until a new member has been appointed and qualifies. Schools; Enforcement of Truancy Law As to Child With I.Q. Below 70. 17 April 1951 G. S. 115-303 makes it the duty of the State Board of Education to for-mulate necessary rules and regulations for the enforcement of compulsory attendance law. This section further provides that mental incapacity shall be an excuse for nonattendance and is interpreted to mean feeble minded-ness or such nervous disorder as to make it either impossible for such child to profit by instruction given in the school or impracticable for the teacher to properly instruct the normal pupils of the school. Commercial Education; Licensing of Commercial Schools; Operation of Commercial Schools for Out-of-State Students ,13June 1951 Any person, firm, or corporation desiring to operate a commercial or correspondence school in this State must apply for and obtain a permit from the State Board of Education to engage in such business even though such school is operated only for nonresident students. G. S. 115-325 et seq. 34 biennial report of the attorney general [vol. School Law; Sale of School Property 18 June 1951 So long as the provisions of G. S. 115-86 are complied with there is no legal objection to the sale of school property through real estate dealers. State Board of Education; Allocation for Architects' Fees for School Buildings in Washington County 20 June 1951 The State Board of Education has the authority to allocate to counties funds which would include funds for payment of architects' fees for plans for school buildings to be constructed from such allocations. Schools; Bond Issue; Allocation of Funds; Changes Permissible 3 August 1951 When a bond issue has been approved for making improvements on a school building and it is subsequently determined in good faith that the site and building are unsuited for educational purposes, the Board of Com-missioners and Board of Education of a county may allocate funds derived from said bond issue towards a new building provided such diversion does not involve any change of purpose for which the school bonds were issued but only a change in the manner or method of accomplishing that purpose. Double Office Holding; Town Commissioner and School Committeeman 8 August 1951 The office of town commissioner and that of school committeeman are both public offices within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding. Double Office Holding; Member of Local School Committee AND Maintenance Supervisor 17 August 1951 While a school committeeman is ineligible to serve as a teacher or as a member of a county board of education, there seems to be no provision to the effect that a school committeeman may not serve in some other type of employment under appointment of the county board of education, for instance, as a maintenance supervisor and repairman on county school buildings. Schools; Bond Issue; Allocation of Funds; Changes Permissible 11 September 1951 A county board of education or the board of trustees of a city admin-istrative unit has authority to divert the proceeds of a bond issue to other 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 35 projects within the general purpose for which the bonds were authorized, provided the board finds in good faith that conditions have so changed since the bonds were authorized that the proceeds are no longer needed for the original purpose. Double Office Holding; School Committeeman and Town Clerk 9 October 1951 The office of town clerk and that of school committeeman are both public offices within the meaning of Article XIV, Section 7, of the Consti-tution, which prohibits double office holding, and one person may not hold both these offices at the same time. Schools; Acquisition of Sites; Limitation Upon Power to Condemn 19 December 1951 G. S. 115-85 gives to county boards of education the power to condemn land for school purposes. The 1951 amendment fixes the maximum amount of land that may be condemned for any one school at thirty acres. G. S. 115-85 sets out in detail the procedure for condemning school sites. G. S. 40-10 provides that the various bodies politic, corporations and natural persons granted the power of eminent domain in Chapter 40 of the General Statutes shall not be allowed to have condemned for their use, without the consent of the owner, a dwelling house, yard, kitchen, garden or burial ground unless condemnation of such property is expressly author-ized in the charter or by some provision of this code. G. S. 40-2(5) lists school committees, county boards of education and boards of school trustees as among the parties politic authorized to exercise the power of eminent domain but only "in order to obtain a pure and adequate water supply for such schools." Construing these various statutes together, it is thought that the pro-hibition contained in G. S. 40-10 does not apply to a case in which the purpose of the condemnation proceeding is to acquire additional adjacent lands for a school site since the entire condemnation proceeding for school sites is set out in G. S. 115-85. Double Office Holding; Member of District School Board; Member of County Board of Elections 9 January 1952 The office of school board member and that of county elections board member are both public offices within the meaning of the constitutional prohibition against double office holding. Schools; Earnings From Lunchrooms and Cafeterias Operated - Under the Provisions of G. S. 115-381 31 January 1952 G. S. 115-381 provides that all lunchrooms and cafeterias under the provisions of this section shall be operated on a nonprofit basis, and any 36 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. earnings therefrom over and above the cost of the operation shall be used for the purpose of reducing the cost of meals served therein, and for no other purpose. When considered in connection with the entire Federal lunchroom program, it is thought that such lunchrooms and cafeterias are being operated on a nonprofit basis when the children who are able to do so pay enough for their meals to produce sufficient revenue to provide free lunches to pupils who have been found by the Local School Board to be unable to pay for them, and that a particular operation cannot be said to have earned a profit until at the end of the school year it is ascertained that there are surplus earnings over and above the cost of operation. Municipal Corporations; Sale of Property; Schools; Contract of Indemnification 17 March 1952 G. S. 160-59 provides that the mayor and commissioners of a city or town shall have the power at all times to sell at public outcry, after thirty days' notice to the highest bidder, any property real or personal belonging to any such town. In the absence of a special statute providing other-wise, a municipality may not contract to sell its property at private sale. ASHEVILLE v. HERBERT, 190 N. C. 732. As to the Town of Madison, Section 71, Chapter 298, Private Laws of 1909 (charter) and Chapter 479, Session Laws of 1951, do provide for a private sale of property subject to the limitations therein contained. It would seem that a city school board has no authority to enter into a contract of indemnity. JENKINS v. HENDERSON, 214 N. C. 244. Schools; Vacancy on County Board of Education Existing for More Than Thirty Days Filled by State Board of Education 22 April 1952 The Supreme Court in the case of EDWARDS v. BOARD OF EDUCA-TION handed down on April 9th, 1952 held that two vacancies have existed for several months in the membership of the Board of Education of Yancey County. Since these vacancies have existed for more than thirty days, it is now the duty of the State Board of Education to fill such vacancies by appointment. G. S. 115-42. Schools; Supervision of Private Kindergartens by State Department of Public Instruction 20 May 1952 Under G. S. 115-65 the State Department of Public Instruction is given authority to supervise both public and private kindergartens and to re-quire that they be operated in accordance with standards to be provided by the State Board of Education. Our Supreme Court has not yet passed upon the constitutionality of this statute as it affects private kindergartens. However, the statute will not be declared unconstitutional unless it ap-pears beyond a reasonable doubt that its enactment was in violation of 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 37 constitutional limitations and all reasonable doubt will be resolved in favor of its validity. STATE v. BROCKWELL, 209 N. C. 209. Schools; Construction of School Buildings for Joint Use of Two Counties; Taking Title in Joint Names of Two Counties 21 May 1952 G. S. 115-88 provides that a county board of education may not expend public funds for the erection or repair of a school building unless the site is owned by said board. G. S. 115-98 provides for the creation of school districts out of portions of contiguous counties by joint action and agree-ment between the county boards involved and with the approval of the State Board of Education. There is no express authority for taking title to the site in the joint names of the boards involved. That authority may be granted by implication, giving to G. S. 115-98 a liberal construction. However, it is suggested that the project be delayed and the next General Assembly be requested to pass appropriate enabling legislation. Education; Teachers; Teachers Entitled to Increment FOR Services in the Armed Forces 21 May 1952 Teachers, principals and superintendents who have entered the armed forces or auxiliary forces of the United States since the cessation of World War II are still entitled to receive the experience increment pro-vided by G. S. 115-359.1, provided such persons are honorably discharged and return to their positions in the public schools of the State. Schools; Right of County Board of Education and Board of County Commissions to Operate a High School With Teachers Provided Entirely at County Expense 26 June 1952 Boards of Commissioners do not have authority to levy taxes to provide funds for the purpose of paying extra teachers in the public schools ex-cept to the extent and in the manner authorized by the School Machinery Act. Schools; Budget; Salaries of Vocational Teachers 27 June 1952 G. S. 115-363 provides that all county-wide current expense school funds shall be apportioned to county and city administrative units monthly and it shall be the duty of the county treasurer to remit such funds monthly as collected to each administrative unit located in said county on a per capita enrollment basis; this includes funds for vocational subjects. Under the foregoing statute and the decision in SCHOOL TRUSTEES v. BEN-NER, 221 N. C. 566, it is thought that in a county containing a county unit and two city units, the three units may not be considered together in making the budget for vocational teachers. Instead the levy must be made on a per capita enrollment basis. DIGEST OF OPINIONS TO COMMISSIONER OF AGRICULTURE Agriculture; Inspection Tax on Liming Material When Purchased out of the State 14 September 1950 The inspection tax on liming material must be paid only if material is sold, offered, or exposed for sale in this State. Agriculture; Commercial Feeding Stuff; Mineral Feed; Status OF Morton's Free Choice Trace Mineralized Salt 5 March 1951 Mineral feed includes mineralized salt and is a commei-cial feeding stuff and is required to be registered under the Commercial Feed Stuffs Law before the same may be sold or offered for sale in this State. Insecticide, Fungicide and Rodenticide Act of 1947; Application to Sales Made Through the United States Mails 29 May 1951 The North Carolina Insecticide, Fungicide and Rodenticide Act of 1947 does not apply to insecticides sold through the United States Mails. Expenditure of Money Collected by Department of Agriculture BY Manufacturers for Tobacco Curers Inspection 1 June 1951 Inspection fees collected by the Department of Agriculture on approved tobacco curing units may be expended only under the provisions of the Executive Budget Act. Agriculture; Insectide, Fungicide and Rodenticide Act of 1947; Registration; Brand or Grade of Economic Poison 25 October 1951 Under the Insecticide, Fungicide and Rodenticide Act of 1947, an economic poison, although it may have the same basic chemical structure, but which is prepared in different crystalline form for different uses and purposes and with different labels, each such varying or different form would constitute a different brand or grade, and the manufacturer would be required to register each brand or grade. 31] biennial report of the attorney general 39 Gasoline and Oil Inspection; Right of Board to Make Rules and Regulations Without Public Hearing; Public Notice Required; Use of Words "North Carolina—Grade" on Pumps 26 February 1952 The gasoline and oil inspection board is not required by statute to give public notices of hearings before adoption of rules and regulations which they may see fit to adopt, but it is recommended that they do so. Public notice of hearings and publication of notice is not satisfied by newspaper stories but formal notice should be given through the press. Filling stations are not required to use the word "North Carolina" and "grade" in posting on the pumps the classification of "premium" and "regular" gasoline. Agriculture; Stock Diseases; Health Certificate; Quarantine 11 March 1952 Under the statutes dealing with the quarantine of cattle coming into this State with insufficient or no health certificate at all, a quarantine would be justified where the possessor of the cattle states that the cattle have been transported from another State into this State, and the truck bears a license tag of a foreign State. Public Records; Records of Experiment Station and Extension Service of the Greater University of North Carolina 10 April 1952 Records of the State College Experiment Station and Extension Service of the University of North Carolina are public records within the mean-ing of Chapter 132 of the General Statutes and would not be subject to be copyrighted by any private group of individuals. Agriculture; Livestock ahd Poultry Remedy Law; Medicated Feeds; Registration 6 June 1952 Under the North Carolina Livestock and Poultry Remedy Law (Article 9 of Chapter 106 of the General Statutes), any livestock and poultry feed medicated and containing any substance for the prevention of disease or for the alleviation or cure of any active disease should be registered under such act. Medicated feeds containing only growth stimulants or vitamins and minerals for nutritional purposes should be registered under the Commercial Feed Act. DIGEST OF OPINIONS TO COMMISSIONER OF LABOR Labor Department; Inspection of Workshops Including Railroad Shops; Authority to Make 29 March 1951 A liberal construction of G. S. 95-4, authorizing the Commissioner of Labor to visit and inspect factories, mercantile establishments, mills, workshops, etc., would seem to give the Commissioner of Labor the au-thority to make safety inspections of railroad workshops and other places employing workers in the transportation industry. DIGEST OF OPINIONS TO COMMISSIONER OF INSURANCE Insurance Agents; Policies Required to be Signed by Resident Licensed Agents 7 August 1950 A performance bond executed by a nonresident contractor guaranteeing the performance of work done in North Carolina is required to be signed by a resident licensed agent of the State. A bond furnished by a sub-contractor of a nonresident contractor would also have to be countersigned by a resident licensed agent of this State. Housing Authority; Exceptions to Building Code Regulations 19 July 1950 A city may make exceptions to its own building code. However, it may not make exceptions to the State building code. The State through the North Carolina Building Code Council, with the approval of the Com-missioner of Insurance, may make changes in the North Carolina build-ing code. Insurance; Fraudulent Claims 1 September 1950 All criminal actions instituted under G. S. 15-214, relating to fraudulent claims for insurance, should be instituted in the county where such claims are filed. 31] biennial report of the attorney general 41 Group Life Insurance; Eligibility of State Employees' Association AS A Group Unit for Group Life Insurance Under Chapter 800 Session Laws of 1951 16 July 1951 Subsection (6) of G. S. 58-210, the same being Chapter 800 of the Session Laws of 1951, does not prohibit the State Employees' Association from being considered as a group for the purpose of issuing policies of group life insurance and in our opinion such association is a permissible group for this purpose. Insurance Law; Pools, Groups or Associations; Authority of the Commissioner to Limit Insurance Companies Writing Risks in Certain Occupancy Classes 27 July 1951 The Commissioner of Insurance has no authority to limit any insurance company, filing under the provisions of the above section, to the writing of risks in certain classes only, regardless of whether or not said writings are limited to sprinklered risks, if the companies writing the same have maintained standards and engineering services to his satisfaction. Group Life Insurance Policies; Employees of the Federal Government; Eligibility for Federal Employees to Purchase Group Life Insurance Where Entire Premium is Paid by Employees 11 October 1951 Employees of the Federal Government are ineligible to purchase group life insurance policies under G. S. 58-210(6) for the reason that they are not considered employees of a "political subdivision" of the State. Insurance Department; State Employees Association; Group Accident and Health Insurance 17 October 1951 The North Carolina State Employees Association cannot be a policy-holder as circumscribed and defined by the group health and accident in-surance law. Collection Agencies; Permits Required from Insurance Commissioner before Engaging in Such Business 6 December 1951 A person, firm or corporation which simply aids and advises its clients in the collection of its delinquent accounts, and which never actually col-lects such accounts or handles any funds paid by a debtor to his creditors, is not required to secure a permit from the Insurance Commissioner be-fore engaging in such business under G. S. 66-41. 42 biennial report of the attorney general [vol. Taxation; Insurance Companies; Premium Taxes; Deposits to Cover Costs of Insurance; Return of Unused Portion of Deposits; Deductibility of Portion of Deposit Returned 22 January 1952 Taxpayers operating under G. S. 58-131.4 insure only special types or classes of risks on a deposit basis. Instead of filing a schedule of premium charges with the Rating Bureau, taxpayer files with that Bureau a schedule of deposits required. The unused or unabsorbed balance of the initial premium deposit is returned to the policyholder at the expiration of the policy as a return of unabsorbed premium deposit. Under these circumstances, the taxpayer's liability under G. S. 105-228.5 should be computed only on the amount of the deposits used or not returned to the insured. Building Code Council; Authority to Make Changes in Building Code 19 February 1952 North Carolina Building Code Council has authority to adopt Building Code Regulations which are less stringent than the ones now existing established by the North Carolina Building Code. Workmen's Compensation; Co/erage of Volunteer Firemen 15 May 1952 Sanitary districts organized under Article 6 of Chapter 130 of the General Statutes are municipal corporations and are authorized to establish fire departments for the protection of property within these districts. Being municipal corporations, they come within the purview of Section 8 of Chapter 820 of the Session Laws of 1951, and the provisions of the Workmen's Compensation Act apply to them. Privately organized volunteer fire companies which are not under the supervision or control of municipalities, and where no part of the expense of equipment, payment of the firemen or other expenses are borne by such municipalities, are not municipal fire departments within the meaning of Chapter 820 of the Session Laws of 1951. Such municipalities are not liable in case of injuries to volunteer firemen incurred in the performance of their duties. DIGEST OF OPINIONS TO ADJUTANT GENERAL Personnel Act; Annual Leave; Computation of Length of Annual Leave; Amount of Compensation for Annual Lea^/e 13 July 1951 Under the Personnel Act, annual leave can be accumulated up to, and including, thirty days. An employee receives compensation while on an-nual leave upon exactly the same basis as if he had performed services for the same length of time. DIGEST OF OPINIONS TO STATE BOARD OF ALCOHOLIC CONTROL Intoxicating Beverages; Transportation into North Carolina to BE Stored and Sold by Ships' Chandler 29 November 1950 Article 3 of Chapter 18 of the General Statutes prohibits the sale of intoxicating- beverages, as therein defined, in this state except through A.B.C. stores, and G. S. 14-49.2 reads in part "The vnlful transportation of alcoholic beverages within, into, or through the State of North Caro-lina in quantities in excess of one gallon is prohibited except for delivery to federal reservations to vi^hich has been ceded exclusive jurisdiction by the State of North Carolina, or in transporting it through this state to another state, in accordance with the provisions of G. S. 18-49.1 . . . for delivery to federal reservations." State Board of Alcoholic Control; Power and Authority TO Fix Prices 7 September 1951 The sale of a carton lot of 8 pints of whiskey at a uniform price in the county ABC stores of the State would not violate the provisions of G. S. 18-39 (c) which authorizes the State Board of Alcoholic Control to require county ABC stores to maintain uniform prices of whiskey. State Board of Alcoholic Control; Powers to Make Rules and Regulations 18 September 1951 When a beer permit has been revoked, the board has the power to make a regulation to the effect that the person whose license has been revoked is ineligible to apply for a new license for at least six months. G. S. 18-78. When a husband or wife has had a permit revoked and the spouse of such person applies for a new license for the same location, the board has the power to conduct an investigation to see whether the application is made in good faith or whether such person is acting simply as the agent of the other spouse in order to evade the law; and if the board finds that the application is not made in good faith, it may refuse to issue the license. When an application for a license has been refused, the board has power to make any reasonable regulation as to the length of time that must elapse before such person may apply for a new license. G. S. 110-7 forbids any minor under the age of eighteen years to work in a place where alcoholic liquors are distilled, rectified, compounded, brewed, manufactured, bottled, sold or dispensed, with a proviso that this section shall not prohibit such minor from working in any establishment 44 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. where beer is sold and not consumed on the premises, and to which has been issued an "off premises" license. G. S. 18-13 provides for the issuance of a search warrant based upon proper affidavit; G. S. 18-116.5 gives ABC inspectors the same powers and authority as other peace officers. Under the foregoing power it would seem that an inspector has the authority to seize whiskey being openly displayed on tables and to arrest the offender. G. S. 18-51. G. S. 15-39 gives a peace officer the authority to arrest without warrant for a misdemeanor committed in his presence. It would seem that the director of the Malt Beverage Division is not a public officer as that term is generally used. Therefore, it is not necessory for him to take and subscribe to an oath of office. Section 506(a) of the Revenue Act (G. S. 18-69.1) seems to have been passed for two purposes: (1) to prevent a wholesaler or bottler from mak-ing a contract with a retailer requiring that retailer to purchase the products of the wholesaler or bottler to the exclusion of the products of other dealers in North Carolina, and (2) to prevent the manufacturer or bottler from acquiring an interest in the business of the retailer so as to exercise an undue influence upon the retailer in bringing about the ex-clusive use by the retailer of the products of the particular manufacturer or bottler. State Board of Alcoholic Control; Power to Revoke License; Permitting Gambling in Licensed Establishments; Violations BY Manufacturer of Section 506(a) of the Revenue Act 12 October 1951 It would seem that if a licensee permits gambling in his establishment he violates the provisions of G. S. 18-78, thus giving the board authority to revoke his license after a hearing. It would also seem that the officers, inspectors and investigators of the Malt Beverage Division have authority to seize such gambling equipment and swear warrants for the persons operating such places of business, but that the actual order for the confiscation of gambling equipment seized can be made only by the court trying the case. It would also seem that a manufacturer of equipment violates the pro-visions of Section 506(a) of the Revenue Act by selling such equipment to a local dealer and taking back for a balance of the purchase price a note payable in installments and secured by a conditional sales contract on the equipment; or by becoming a co-maker with the local dealer on the note to a bank or other lending agency for borrowed money when the money so borrowed is all paid to the manufacturer for the purchase price of the equipment. However, it is suggested that a test case be brought and taken to the Supreme Court on these points. Alcoholic Beverages; Advertising by Radio or Television 21 November 1951 Since G. S. 18-60 defines alcoholic beverages within the contemplation of the Alcoholic Beverage Control Act of 1937 as alcoholic beverages con- 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 45 taining more than 14% of alcohol by volume, it would seem that it is not unlawful to advertise the sale of legal beer in North Carolina by radio. The 1937 Act does not use the term "television", but the foregoing would seem to be applicable to advertising by television. It would seem that the awarding of prizes on radio and television pro-grams under the circumstances described in the attached memorandum, is not unlawful. However, under the authority given in G. S. 18-55 it would seem that the several County ABC Boards, by and with the consent and approval of the State Board, have the authority, within their discretion to prohibit such programs by regulation. . Wine and Beer; Sale of Wine in Pinehurst and Southern Pines 18 December 1951 Where a city or town votes in favor of the sale of wine and beer sub-sequent to the date on which the county has voted against such sales, the State Board of Alcoholic Control has authority to issue permits for the sale of such beverages in such cities or towns. Intoxicating Liquor; A. B.C. Stamps Forged or Stolen; Offenses 3 March 1952 There are no provisions in the A.B.C. laws dealing with the unauthorized use of State tax stamps for intoxicating liquor nor are there any laws specifically prohibiting the forging of such stamps or the larceny of same. It is not unlawful to possess A.B.C. liquor if the container shows the Federal tax stamp or the State stamp tax. There is no requirement that it shall show both. Beer and Wine; Authority of Inspectors 1 April 1952 Under G. S. 18-140 and considering what our court said in the cases of STATE V. HARDY, 209 N. C. 83 and STATE v. CARPENTER, 215 N. C. 635, it would seem that an inspector of the Malt Beverage Division has authority to inspect the living quarters when an operator lives in the back of a beer outlet and the li\'ing quarters are separated from that part of the building used as a beer outlet only by connecting doors. It would seem that such an inspector may perform his duties on Sun-day. It would also seem that an inspector of the Malt Beverage Division is required to have a search warrant in only those cases in which other law enforcement officers are required to have search warrants. It would seem also that a reasonable construction of G. S. 18-72 limits the place where "on premises" license may be used to the building in which the beer outlet is actually located and does not include a separate building owned by the operator but located on the same lot and com-pletely separated from the building in which the beer outlet is located. 46 biennial report op the attorney general [vol. Beer and Wine; Removing Wine from Original Bottle, Refiltering ™ THE Wine and Refilling the Bottle 28 May 1952 G. S. 106-121 (c) defines food as articles used for food or drink for man or other animals. This would include wine. G. S. 106-129 ^a) pro-vides that food shall be deemed to be adulterated if it has been produced, prepared, packed or held under insanitary conditions whereby it may have become contaminated with filth or whereby it may have been rendered diseased, unwholesome or injurious to health. If sealed bottles of wine are opened, and refiltered under insanitary conditions, the wine would seem to be adulterated within the meaning of the statute. In addition, the opening of the bottle necessarily means the removal of the tax stamp required by G. S. 18-81 (r) and would necessitate the purchase of another stamp and it would also seem that the opening of the bottles and refilling with wine might do an injustice to the original bottler. He could probably maintain an injunction proceeding to prevent such practice. DIGEST OF OPINIONS TO COMMISSIONER OF BANKS Banks; Safety Deposit Boxes; Failure of Customer to Pay Rent; Method of Collection 19 September 1950 Upon the failure of a bank customer to pay the rent on a safety deposit box, the most appropriate procedure would be for the bank to institute an action for the collection of the rent against the holder of the box and, upon obtaining judgment, have the contents of the box sold under execu-tion for the payment of the rent. Banks-Banking; Branch Bank; What Constitutes 1 June 1951 Setting up of a time payment department in a separate building would not constitute a branch bank or operating a teller's window. Banks and Banking; Branch Banks; Tellers Window^s; Capital Requirements 26 June 1951 The capital stock requirements as set out in G. S. 53-62 must be com-plied with if the parent bank is operating a "full-powered branch bank" even though the parent bank has received authority from the Banking Commission to operate a tellers window. 31] biennial report of the attorney general 47 Banks and Banking; Requirement that National Banks Show the Amount of State Deposits in Their Published Statements 28 June 1951 All banks, including National banks, who receive deposits of State funds are required to show in their published statements the amount of money on deposit in such banks to the credit of the State of North Carolina or of any official thereof. Banks and Banking; Supervision of Small Loan Agencies Exempted Under Chapter 282, Session Lav^^s of 1945 22 August 1951 The Commissioner of Banks has no authority to assume supervision over industrial loan agencies exempted from the provisions of Article 15, Chap-ter 53, of the General Statutes, and cannot authorize the registration of such exempted agencies. Banks; Loan Limitations; Public Housing Administration Short-term Notes 9 June 1952 Whether the limitation on loans made by G. S. 53-46 will apply to short-term loans by local units of the Public Housing Administration would depend upon whether or not such securities were interest-bearing obliga-tions of the United States as mentioned in said section. This question is open for further consideration after considering all available authorities. Banks; Industrial Banks; Industrial Small Loan Agencies; Fines Charged to Borrowers 18 June 1952 There is no authority in the statute authorizing an industrial bank or an industrial loan agency to charge a borrower a fine upon any install-ment loan contract. The charges which may be made in connection with such loans made by such agencies are confined to those prescribed by statute. DIGEST OF OPINIONS TO STATE COMMISSION FOR THE BLIND State Commission for the Blind ; Regulations ; Filing Regulations In Office of Clerk of Superior Court 23 August 1950 The North Carolina State Commission for the Blind is not required to file any regulations in the office of the Clerk of the Superior Court of any county in the State by virtue of G. S. 143-198.1 (Chapter 378, Session 48 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. Laws of 1949). I do not think that you are required to file your rules and regulations with the Secretary of State as required by Article 18 of Chapter 143 of the General Statutes. Aid TO THE Blind; Persons Entitled Thereto; Aid to Dependent Children; Aid to the Permanently and Totally Disabled 14 August 1951 Needy blind persons should receive aid under the provisions of law applicable to such persons and not through other categories of assistance administered under the supervision of the State Board of Public Welfare. This applies also to the fourth category of public assistance which is Aid to the Permanently and Totally Disabled. State Commission for the Blind; Chapter 319, Session Laws of 1951; Authority of Commission for the Blind to Set Up Professional Advisory Committee Containing Members of Medical and Optometric Refractionists 2 October 1951 The provisions of G.S. 111-14 relate to the Public Assistance Program of the State Commission for the Blind. The Commission is not authorized to pay fees to a medical expert or optometrist who is selected and designa-ted by an applicant for assistance, and which examination is made before the applicant has been adjudged eligible for assistance. The Commission is authorized to employ its own experts, both medical or optometrists, for the purpose of making its own investigations and examinations and to pay such experts. DIGEST OF OPINIONS TO BUDGET BUREAU Budget Bureau; Employment of Necessary Engineers; Allotments from Contingency and Emergency Fund ::::^ 23 August 1950 The Director of the Budget is authorized under the Executive Budget Act to employ engineers and such other special help as may be necessary to carry out the duties of his office, and the expense of such employinent is payable out of the Contingency and Emergency Fund. Public Contracts; Bid Security 21 November 1950 Bids on State contracts must be accompanied by a deposit in cash or a certified check in an amount equal to not less than two per cent (2%) 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 49 of the proposal. A higher percentage may be required by the State should it be deemed advisable. Highway Bonds; Sinking Funds; Right to Withdraw Therefrom 7 February 1951 Interest requirements on sinking fund bonds may not be withdrawn from the sinking funds as well as principal requirements until the amount in the sinking fund is sufficient to pay both the principal and all interest which will accrue on the bond up to the time of retirement. The Legislature could not validly change any of the provisions creating sinking funds because these provisions are contractual in character. Sinking funds of different issues of bonds may not be legally consoliated if the result is to withdraw from any particular sinking fund deposits any amount required by law to be deposited therein. Real Property Adjoining Landowner; Projecting Awning 0/er and Above Real Property of Adjoining Landowner 17 January 1952 The State cannot hang awnings on its buildings which project out and over the land of an adjoining landowner without such landowner's per-mission. Contract Dated June 8, 1951 Between North Carolina State Ports Authority and J. A. Jones Construction Company 25 February 1952 Since the contract in question contained an alternate providing for $21,000 additional compensation in case the contractor should be required to furnish, haul and place approximately 14,000 cubic yards of fill under warehouse from sources off project site, and since it is also specifically stipulated in the contract that the engineers may omit any items of work stated in the proposal provided that the total value of such omissions does no exceed 20% of the total contract amount of $609,700, it wouh' seem that the engineers have the right to eliminate the alternate; thus reducing the contract price by $21,000. Motor Vehicles; Operators' and Chauffeurs' License Fund; Accident Records Section 17 March 1952 The Operators' and Chauffeurs' License Fund may be used only for the administration of G. S. 20-7. It may be used to employ personnel whose duties have a reasonable relation to the examination of applicants for license, the issuance of licenses, and the determination of whether license holders should be re-examined. It may not be used for expenses incurred in the administration of other phases of the Driver's License Act or of the Highway Safety Program. DIGEST OF OPINIONS TO BOARD OF COSMETIC ART North Carolina State Board of Cosmetic Art; Authority to Employ Counsel; Expenditure of Public Funds 31 July 1951 The North Carolina State Board of Cosmetic Art has no authority to expend the public funds of its agency to pay counsel fees or expenses of litigation which it did not authorize and was not consulted about, and for which it made no application to the Attorney General or Governor for the employment of such counsel and the payment of such expenses. DIGEST OF OPINIONS TO STATE BOARD OF EDUCATION School Law; G. S. 115-341; Compensation to School Children Injured in or by School Bus—Minnie Jean Macey 21 June 1951 In order for compensation to be paid, under the provisions of G. S. 115- 341, to parents of children who are injured, the injury must occur while such child is riding on a school bus to and from school, or from the oper-ation of said bus on the school grounds or in transporting children to and from school. School Law; State Board of Education; Extension of Boundaries OF City Administrative Unit 26 June 1951 A petition for annexation of contiguous territory so as to include same in the boundaries of a City Administrative Unit under G. S. 115-100 should show that all of the taxpayers in the proposed territory to be annexed join in the petition. The word "contingent" in the petition should be changed to the word "contiguous." Education; Chapter 1163 of the Session Laws of 1951; Use of Signature Machine; Liability of Indemnity Bond for Unauthorized Use of Signature Machine 3 July 1951 Chapter 1163 of the Session Laws of 1951 authorizing the use of signa-ture machines by local school units makes the sureties on bonds liable for unauthorized use of the machine, and the statute is to be construed as a 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 51 part of the bond. Any extra expense involved in securing State funds dispensed by local units as to bond coverage because of the use of signa-ture machines should be paid by the local unit because that unit, by adopting the signature machine, causes this extra expense to arise. Education; State Board of Education; Right to Deduct Checks FOR Group Life Insurance 7 September 1951 There is no authority for the treasurer or fiscal officer of the county board of education or the various city administrative units to make deduc-tions from the salary checks of school mechanics for the purpose of pay-ing the deductions to the Treasurer of the Mechanics Association who, in turn, will use the funds to pay premiums for group accident, health and life insurance. Teacher Contract—Alamance County 21 September 1951 When a vacancy in a teaching position exists and when the principal of the school recommends to the county board of education that a teacher be elected for only the remainder of the school term and the teacher is elected upon the understanding that he is to serve as a substitute teacher for only the remainder of that school year, and when the Certificate of Notification states that the teacher is elected for only the remaining part of the school year, such teacher does not have a continuing contract in spite of the fact that the contract actually signed fails to indicate that the election is only for the remaining part of the current school year. Schools; Chapter 1059, Session Laws of 1951; Article 49, Chapter 115 of the General Statutes; 1951 Act Does Not Repeal Previous Statutes 29 November 1951 Article 49 of Chapter 115 of the General Statutes authorizes and directs the State Board of Education to set up in its budget a sum of money deemed sufficient to pay the claims authorized in the Article; authorizes and directs the State Board of Education to pay out of said fund to the parent, guardian, executor or administrator of any school child who may be injured and/or whose death results from injuries received while such child is riding on a school bus to and from the public schools of the State, or fi'om the operation of said bus on the school grounds, or in transporting children to and from public schools of the State, the medical, surgical, hospital and funeral expenses incurred on account of such injuries and/or death of such child in an amount not exceeding $600; provides that the right to compensation shall be forever barred unless a claim be filed within one year after the accident, and if death results, within one year after the death; authorizes and empowers the State Board of Education under rules and regulations to be promulgated by the Board to approve any claim 52 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. authorized by the Article, and when such claim is approved such action shall be final; and provides that such claims shall be paid regardless of whether or not the injury received by said school child shall have been due to the negligence of the driver of the school bus. Section 1, Chapter 1059, Session Laws of 1951, constitutes the Indus-trial Commission a court for the purpose of hearing and passing upon tort claims against the State Board of Education, the State Highway and Public Works Commission and all other departments, institutions and agencies of the State. The Industrial Commission is required to determine whether each individual claim arose as a result of a negligent act of a State employee while acting within the scope of his employment and with-out contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted, thus applying common law principles as to tort liability. It is thought that the two foregoing statutes are not in conflict and that the 1951 Act does not repeal the previous statutes. Schools; Chapter 1059, Session Laws of 1951; Article 49, Chapter 115 OF the General Statutes; 1951 Act Does Not Repeal Previous Statutes 22 January 1952 In a case to which G. S. 115-341 is applicable the State Board of Edu-cation is not authorized to pay more than $600 toward the medical, sur-gical, hospital and funeral expenses incurred on account of such injuries and/or death of a child. When a person elects to proceed under the pro-visions of G. S. 115-341, it would seem that he has waived his rights to compensation under Chapter 1059, Session Laws of 1951. Schools; Sale of Activity School Bus 4 February 1952 It is thought that G. S. 115-86 is applicable to the sale of an activity school bus owned by a city administrative unit and purchased through the Division of Purchase and Contract. It is also thought that G. S. 143-49 (e) is not applicable since the property does not belong to the State govern-ment or to any of its departments, institutions or agencies. Reasoning by analogy from G. S. 115-363 (c) it is thought that the proceeds of sale should be paid to the treasurer of the city school board to be held by him for the capital outlay fund of the city administrative unit. Workmen's Compensation; Retirement Benefits 11 February 1952 Funds received from the Teachers' and State Employees' Retirement System by an employee do not affect any Workmen's Compensation which may become due a teacher for temporary, total or permanent partial dis-ability. Retirement funds paid to a retired state employee are not pay-ments in lieu of compensation. 31] biennial report of the attorney general 53 Schools; State Board of Education; Power of Board to Adopt Regulations As to Participation of Local Schools in INTERSCHOLASTIC SpORTS PROGRAM 4 June 1952 Section 9, Article 9, of the State Constitution enumerates certain express powers of the State Board of Education, among them "generally to super-vise and administer the free public school system of the State, and make all needful rules and regulations in relation thereto." In 24 R.C.L. Section 23, page 575, we find: "The power to adopt rules and regulations is not limited to those concerning the conduct of pupils in school hours, but may within proper limits extend to their conduct in non-school hours as well." From the foregoing it would seem that the State Board of Education has the power to adopt reasonable rules and regulations as to the partici-pation of local schools in athletic contests. In the case of HOSPITAL v. JOINT COMMITTEE, 234 N. C. 673, our Supreme Court held an admin-istrative board cannot share its authority jointly with an advisory com-mittee. Therefore, it is thought that the State Board of Education in the making and administration of rules and regulations as to athletic contests cannot share responsibility vdth an advisory committee. DIGEST OF OPINIONS TO STATE BOARD OF ELECTIONS Elections; Printing Ballots for Offices for Which No Candidates Have Filed 20 September 1950 The Election Law on the subject is silent but I believe the best course to pursue would be to recommend to the various County Boards of Elec-tion that a blank ballot be provided for township offices vdth sufficient space for write-ins of the names of persons the electors wish to vote for as Constable and Justice of Peace. Distribution of Applications for Absentee Ballots 6 October 1950 The applications for absentee ballots are of no significance or value until they have been filled in and filed or mailed in as required by law and no accounting for unused blank applications for absentee ballots is required. If the Chairman of the County Board of Elections considers that the re-quest is not unreasonable and that there is a probable legal use for the blank applications, I think he would be justified in delivering such number of blank applications as would seem to be reasonable. 54 biennial report of the attorney general [vol. Special Election; Time When the Vote Must Be Canvassed 3 November 1950 The provisions of G. S. 163-95, requiring that the vote in a special elec-tion shall be canvassed not later than ten days after the election would be considered as directory rather than mandatory and would not make the canvass of the vote and declaration of the result at a later date invalid. If a special election was not being held at the same time as the General Election, the vote should be canvassed and the returns made within ten days, as provided by the statute, but I do not think that the failure to do so within that time limitation would invalidate the elecion in any way. Election Law; Re: Canvass of Votes After Certificate of Election Has Been Furnished, and Induction Into Office 27 November 1950 The only way in which the title to the office of any person holding same could be tried is by an action in the nature of quo warranto, as provided by G. S. 1-516. SAUNDERS v. CATLING, 81 N. C. 298, OWENS v. CHAPLIN, 228 N. C. 705. Elections; Primaries; Candidate Must Be Registered As Member of Political Party for Which He Files as Candidate; Party Affiliation Can Be Changed Only During Registration Period 4 October 1951 Change of party affiliation can be made only during registration period. A person cannot file as a candidate for office of a political party except as a candidate of the party with which he is affiliated as shown by the reg-istration books. Election Laws; Voting for Group Candidates 17 March 1952 Where a voter marks his ticket in the circle at the top of the ballot and also marks the ticket on the opposite side for one or more of a group of candidates, he would, in so doing, vote only for the individuals in the group which he has marked. In other words, if a person desires to split his ticket in voting for a group of candidates, he would only vote for those which he actually marked in the place opposite the name of the candidate of his choice. Primary Elections; Party Affiliation of Candidates; When Vacancies May Be Filled by Party Executive Committees 27 May 1952 No person shall be permitted to file as a candidate of any political party in the party primary when such person, at the time of filing his or her 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 55 notice of candidacy, is registered on the registration book as an affiliate of a different political party from that party in whose primaiy he or she is now attempting to file as a candidate. DIGEST OF OPINIONS OF EMPLOYMENT SECURITY COMMISSION Employment Security Act; Refund of Taxes Paid Voluntarily Through Error of Law or Fact 18 April 1951 Under the Employment Security Act, the taxpayer must resort to the remedies that the Legislature has established, and he must do so at the time and in the manner that the statute and regulations provide. Refund of unemployment security taxes may be made only under the procedure set out in the Act, and recourse may not be had to G. S. 105-407, relating to a refund of tax of the State. Employment Security Agency; Hearings Before Commission to Determine Liability or Status; G. S. 96-4(m,o,p,q) ; Method OF Taking Evidence to Be Used Before Commission; Deputy 13 February 1952 It is necessary for a proper and efficient administration of the Employ-ment Security Act to invariably have an attorney and a reporter rather than a field representative to perform the duty of eliciting evidence for transmission to the Commission for findings of fact and determination. This is the procedure which has consistently been followed in this State and is a requirement of the North Carolina Employment Security Act. DIGEST OF OPINIONS TO THE GREATER UNIVERSITY Escheats; Unclaimed Funds Held or Owning From FSA by Hospital Care Association and Hospital Savings Association 20 July 1950 Unclaimed funds held or owing from Fedei*al Security Administration by Hospital Care Association and Hospital Savings Association are subject to escheat under the provisions of G. S. 116-23. 56 biennial report op the attorney general [vol. Educational Institutions; Necessary Residence for Students Claiming Preferential Considerations in Admission to State Institutions; Alien Residents 23 October 1950 Residence is dwelling in a place for some continuance of time, and is not synonymous with domicile, but means a fixed and permanent abode or dwelling, as distinguished from a mere temporary locality of existence; and to entitle one to the character of a resident, there must be a settled, fixed abode, and an intention to remain permanently, or at least for some time, for business or other purpose. Residence indicates permanency of occupation as distinct from lodging or boarding or temporary occupation. Residence indicates the place where man has his fixed and permanent abode and to which, whenever he is absent, he has the intention of returning. Residence means the place where one resides; an abode, a dwelling or habitation. Residence is made up of fact and intention. There must be the fact of abode and the intention of remaining. A place of residence in the ccmmon-law acceptation of the term means a fixed and permanent abode, a dwelling place for the time being, contradistinguished from a mere temporary local residence. State Taxation; Military Personnel Stationed in North Carolina 20 March 1951 The non-payment of taxes where taxes would otherwise be due to be paid by a resident is strongly indicative of a lack of intent to become a resident of the State of North Carolina, such non-payment because of exemptions referred to above, which apply to our residents as well as non-residents, and because of the non-taxability of personal property located on military posts, exclusive jurisdiction of which has been ceded to the United States, cannot be regarded as conclusive, as a bona fide resident of this State is not deprived of his residence for non-payment of taxes. He merely thereby becomes a tax delinquent. Bills and Notes; Lost Instruments; Holders in Due Course 5 June 1951 The holder in due course of a negotiable instrument, which had been lost by the payee who had endorsed it in blank, may recover from the drawer the face value of the check. Greater University of North Carolina; Resident and Nonresident Tuition Fees 8 August 1951 In order to receive the benefits of resident tuition fees, a person must be a bona fide citizen of this State, and the fact that a brother of a non-resident qualified as a guardian would not entitle him to the benefits of resident tuition fees. 31] biennial report of the attorney general 57 Sales Tax; University of North Carolina; Carolina Inn; Sales to the Inn 6 December 1951 By virtue of the exemptions contained in Subsection (d) and (q) of G. S. 105-169, the Carolina Inn, which is owned and operated by the Uni-versity of North Carolina, is exempt from the payment of sales taxes on purchases made by the Inn. License Tax; Three Per Cent Admissions Tax; Theatrical Performances; Exemptions; Carolina Playmakers; Section 108 17 April 1952 A college play is exempt from the State license tax when it is produced by students or faculty or local cit
Object Description
Description
Title | Biennial report of the Attorney-General of the State of North Carolina |
Other Title | Biennial report and opinions of the Attorney General, State of North Carolina |
Contributor | North Carolina. Department of Justice. |
Date | 1950; 1951; 1952 |
Subjects |
Attorneys general's opinions--North Carolina Automobiles--Transportation--Law and legislation Corporations--North Carolina Criminal law Education Election law Genealogy Judicial statistics--North Carolina Insurance Local government Public health Public officers--North Carolina Public welfare Schools Taxation--Law and legislation |
Place | North Carolina, United States |
Time Period | (1945-1989) Post War/Cold War period |
Description | Title varies slightly.; Report period irregular.; On July 1, 1939 the Attorney General became head of the newly created Dept. of Justice. |
Publisher | Raleigh :N.C. Dept. of Justice,1899-[1970](Guy V. Barnes, printer to Governor's Council) |
Agency-Current | North Carolina Department of Justice |
Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
Physical Characteristics | 37 v. ;23 cm. |
Collection | Health Sciences Library. University of North Carolina at Chapel Hill |
Type | text |
Language | English |
Format | Reports |
Digital Characteristics-A | 24673 KB; 434 p. |
Digital Collection |
Ensuring Democracy through Digital Access, a North Carolina LSTA-funded grant project North Carolina Digital State Documents Collection |
Digital Format | application/pdf |
Title Replaced By | North Carolina..Department of Justice..North Carolina Attorney General reports**0364-362X |
Title Replaces | North Carolina.Department of Justice..Attorney General's report |
Audience | All |
Pres File Name-M | pubs_edp_biennialreportattorneygeneral19501952.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_edp\images_master\ |
Full Text | i mm^} ipiiiii lii s^Tme iii P^s pill*. Cl)e Lifirarp of t|)C OniDergitp of s^otth Carolina Collection ot jRortt Catoltniana '2rf)i0 fiooft toa0 ptt0znteti TUe AHovv^ew .\:tcvief^U C34o \^So/SZ r UNIVERSITY OF N.C. AT CHAPEL HILL 00033944876 FOR USE ONLY IN THE NORTH CAROLINA COLLECTION Digitized by the Internet Arcinive in 2011 with funding from Ensuring Democracy through Digital Access (NC-LSTA) http://www.archive.org/details/biennialrep1950attrny1952 BIENNIAL REPORT OF THE ATTORNEY GENERAL OF THE STATE OF NORTH CAROLINA VOLUME 31 1950-1952 HARRY McMULLAN ATTORNEY GENERAL T. W. Bruton Hughes J. Rhodes* Ralph Moody Claude L. Love James E. Tucker** Peyton B. Abbott*** L Beverly Lake Harry W. McGalliard John Hill Paylor Died May, 1951. '*Resigned and succeeded by I. Beverly Lake 'Resigned and succeeded by Harry W. McGalliard LIST OF ATTORNEYS GENERAL SINCE THE ADOPTION OF CONSTITUTION IN 1776 TeifTn 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 1868-1869 Olds, Lewis P 1869-1870 Shipp, William M 1870-1872 Hargrove, Tazewell L 1872-1876 Kenan, Thomas S 1876-1884 Davidson, Theodore F 1884-1892 Osborne, Frank 1 1892-1896 Walser, Zeb V 1896-1900 Douglas, Robert D 1900-1901 Gilmer, Robert D 1901-1908 Bickett, T. W 1909-1916 Manning, James S 1917-1925 Brummitt, Dennis G 1925-1935 Seawell, A. A. F 1935-1938 McMullan, Harry 1938- LETTER OF TRANSMITTAL 1 December 1952 To his Excellency, ;. - W. Kerr Scott, Govei-iior Raleigh, North Carolina Dear Sir: In compliance with statutes relating thereto, I herewith transmit the report of the Department of Justice for the biennium 1950-52. Respectfully yours, Harry McMullan, Attorney General EXHIBIT 1 Civil Actions Pending or Disposed of in the Courts OF North Carolina Pending in the Superior Courts of North Carolina R. L. Lewis and Huger King v. Johnson, State Treasurer. J. H, Akins v. B. D. Perry. Winston-Salem v. Realty Bond Company, et al. City of Charlotte v. George W. Parr, et al. E. C. Bivens, etc. v. Harry McMullan, Attorney General, et al. Wiscasset Mills Company v. Shaw, Commissioner of Revenue. Martine Oaksmith v. Department of Conservation and Develop-ment, et al. Lambert R. Morris v. Mason, et al. and State Board of Educa-tion. Jas. M. Scarborough, et al. v. F. L. Andrews. Jas. A. Scarborough, et al. v. Mrs. Lizzie A. Wright. . W. W. Brittain, et al. v. Harry McMullan, Attorney General. Wachovia Bank & Trust Company v. Elsie Brown, et al. and Attorney General. S. D. Ellison v. Hunsinger and Fairley, State Warehouse Super-intendent. In the Matter of Blue Bird Taxi Company. Elwood McRae, etc. v. Edgar Williams, et al. Southern Oil Transportation Co., Lie. v. Commissioner of Motor Vehicles. Victory Cab Company v. Shaw, Commissioner of Revenue. A. Ray Trexler, et al. v. Martin Trexler, Shaw, Commissioner of Revenue, et al. Pure Oil Company of the Carolinas v. Maxwell, Commissioner of Revenue. Burroughs Adding Machine Company v. Gill, Comimissioner of Revenue. Estate of Celeste W. Blake, Deceased. Board of Education, et al. v. Shaw, Commissioner of Revenue. Gill V. Bullock's, Lie. and Crensliaw^-Nelson-Bullock, Inc. Mrs. Frances Davis Chance v. State of North Carolina. State ex rel. Shaw, Commissioner of Revenue v. Walter J. Clarke, et al. Commercial National Bank, et al. v. Shaw, Commissioner of Revenue. State of North Carolina v. Commonwealth Fuel Company. Cozier Container Corporation v. N. C. Pulp Company, et al. State of North Carolina v. Ervin Ray Davis State of North Carolina v. D. E. Graham, Jr. June Hayes v. Shaw, Commissioner of Revenue. Hodgin, et al. v. Commissioner of Revenue. 6 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. Town of Mocksville v. Fisher Dulin and Wife. State ex rel. v. Department of Revenue v. Frank Davis, et al. Catherine J. Ward, et al. v, Jessup and Commissioner Revenue. State ex rel. Utilities Commission v. Frederickson Motor Ex-press, et al. State ex rel. Utilities Commission v. K. and Y. Motor Lines. State ex rel. Utilities Commission v. Pate Transfer. State ex rel. Utilities Commission v. H. Grover Brigman. State ex rel. Utilities Commission v. Roanoke Freight Lines, Inc. State ex rel. Utilities Commission v. Harry Lockhard and Leo Wallace Yancey. State ex rel Utilities Commission v. Miller Motor Express, et al. State ex rel. Utilities Commission v, Atlantic Coast Line Rail-road Companj^ State ex rel. Utilities Commission v. Paul E. Ricks, et al. State ex rel. Utilities Commission v. Strickland Transfer. State ex rel. Utilities Commission v. E. C. Robbins, Town of For-est City, et al. State ex rel. Utilities Commission v. Clinton Bus Lines (2 cases) . State ex rel. Utilities Commission v. Piedmont Mountain Freight Lines, Inc. State ex rel. Utilities Commission v. Blue Ridge Trucking Com-pany. William E. Sweat v. Rutherford County Board of Education. Disposed of in Superior Courts of North Carolina Frank 0. Sherrill v. Hugh McRae Co., Inc., et. al. Dr. J. R. Spencer v. State Board of Health. J. H. Harris v. A. B. Fairley, State W^arehouse Superintendent. Willis G. Briggs, Administrator v. N. C. State College, et al. Leake v. State Board of Elections. Mary E. Haywood v. Erwin, State Superintendent of Public In-struction. George R. Wallace, et al. v. State Board of Education, et al. George R. Wallace, et al. v. Archie Royal Davis, et al. Woman's Home Missionary Society v. Packer, Administrator, and Attorney General. Wachovia Bank & Trust Company, Executor v. Waddell, et al. and University of North Carolina. E. Y. Ponder v. State Board of Elections, et al. Mrs. Lettie M. Watkins, Administratrix v. Shaw, Commissioner of Revenue. Wilmington Red Cross Sanitarium, Inc. v. City of Wilmington. J. L. Widman, et al. v. Shaw, Commissioner of Revenue. Dot's Smart Shop v. Shaw, Commissioner of Revenue. Gill, Commissioner of Revenue v. F. D. Smith, alias George Smith, et al. State ex rel. Utilities Commission v. Frederickson Motor Ex-press, et al. 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 7 State ex rel. Utilities Commission v. Blue Ridge Trucking Com-pany. State ex rel. Utilities Commission v. Miller Motor Express. State ex rel. Utilities Commission v. Martel Mills Corporation. State ex rel. Utilities Commission v. Queen City Coach Com-pany (2 cases) . State ex rel. Utilities Commission v. Ray Whisnant, et al. State ex rel. Utilities Commission v. Thomas E. Johnson, et al. State ex rel. Utilities Commission v. Arlie Hall. State ex rel. Utilities Commission v. Knightdale Water Supply. State ex rel. Utilities Commission v. Grace Moore White. State ex rel. Utilities Commission v. Town of Spring Lake. State ex rel. Utilities Commission v. Atlantic Coast Line Rail-road Company (2 cases). State ex rel. Utilities Commission v. Blanton's Business College. State ex rel. Utilities Commission v, Norfolk Southern Railway Company and Railway Express Agency. State ex rel. Utilities Commission v. Leicester Bus Lines. State ex rel. Utilities Commission v. Richard A. Shaw, et al. State ex rel. Utilities Commission v. C. W. Davis and Wife. State ex rel. Utilities Commission v. Fleming Bus Company. Pending in North Carolina Supreme Court State ex rel. Utilities Commission v. Leicester Bus Lines. State ex rel. Utilities Commission v. Richard A. Shaw, et al. State ex rel. Utilities Commission v. C. A. Davis and Wife. State ex rel. Utilities Commission v. Atlantic Coast Line Rail-road Company. Disposed of in North Carolina Supreme Court Lester J. Sparrow, et al. v. Dixie Leaf Tobacco Company. Gill, Commissioner of Revenue v. F. D. Smith, alias George Smith, et al. Gates County School Committee v. Board of Education of Gates County. Watson Industries v. Shaw, Commissioner of Revenue. State ex rel. Hanson, etc. v. James M. Yandle, et al. In Re : Curnel Nathaniel Hickerson. State ex rel. Utilities Commission v. Atlantic Coast Line Rail-road Company (2 cases). State ex rel. Utilities Commission v. Fleming Bus Company. In Re : Housing Authority of the City of Charlotte. North Carolina State Art Society v. Bridges, State Auditor. 8 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. Pending Before North Carolina Industrial Commission (Workmen's Compensation Cases) Hugh Anderson Johnson v. Warren County Board of Education, et ah Austin Adams v. Craven County Board of Education. K. W. Ballentine v. Department of Agriculture. Frank Duff v. State Board of Education. Grady Duncan v. Division of State Parks. Pearl L. Jones v. State Hospital at Butner. John T. McCurry v. Yancey County Board of Education. Joseph S. Powell v. State Hospital at Goldsboro. Amelia P. Perry v. Granville County Board of Education. Jimmy Wilkins v. State Hospital at Raleigh. Disposed of Before North Carolina Industrial Commission (Workmen's Compensation Cases) J. H. Tadlock v. Bertie County Board of Education, et al. Mrs. Willie Riddick v. State Board of Education. W. W. Walker, Deceased, v. State Board of Alcoholic Control. Mrs. Birdie Brooks Pursley v. State Board of Education, et al. R. E. Poole V. State Board of Health. Jimmie Oaks v. Woman's College, University of North Carolina. Harold Minges v. State Board of Public Buildings and Grounds. William A. Minnis v. University of North Carolina. Mrs. Sadie L. Fort v. State Board of Education. S. M. Eddleman v. Stokes County Board of Education. Ladd Duncan v. Rutherford County Board of Education. Charles Carroll v. Johnston County Board of Education. Anne Brown v. Orange County Board of Education. Sylvester T. Bridgers v. Board of Buildings and Grounds. Jacqueline A. Blackwell v. State Board of Education. Walter Barger v. Guilford County Board of Education. Thomas H. Johnson v. Wake County Board of Education. Robert Samuel Weathers v. Department of Motor Vehicles. William E. Sweat v. Rutherford County Board of Education. Pending in United States Supreme Court Raleigh Speller v. State of North Carolina. Clyde Brown v. State of North Carolina. David Brock v. State of North Carolina. Disposed of in United States Supreme Court Elmer Matthews and Jim Cook v. State of North Carolina. Jack T. Tenney, et al. v. William Patrick Brandhove. Sterling L. Hicks v. State of North Carolina. 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 9 Pending in District Court of the United States Ellis V. Wilson Public School District. Bennie Daniels, et al. v. State of North Carolina. Joseph Butts, et al. v. Board of Education of Perquimans County. Weaver, et al. v. H. P. Taylor, et al. Alice Hanibal, etc. v. H. P. Taylor, et al. Leonard Keele, et al. v. H. P. Taylor, et al. James Edward Thomas v. Gray, President of University of North Carolina. William H. Johnson v. State Board of Education. Disposed of in District Court of the United States Carolyn J. Blue, et al. v. State Board of Education. (Dismissed as to State Board of Education). Hubert A. Eaton, Jr. v. H. P. Taylor, et al. Harold Thomas Epps, et al. v. Carmichael, et al. Gwendolyn Lolita Harris v. Gray, President of University of North Carolina. United States v. Carthage Bonded Warehouse Corporation, et al. Pending in the United States Court of Appeals Winborne v. H. P. Taylor, et al. Disposed of in United States Court of Appeals Floyd B. McKissick, et al. v. Carmichael, et al. Disposed of Before Interstate Commerce Commission State of North Carolina and Utilities Commission v. Aberdeen and Rockfish Railroad Company. E X H I B I T I I List of Criminal Cases Argued by the Attorney General AND His Associates Before the North Carolina Supreme' Court: Fall Term, 1950, Spring Term, 1951; Fall Term, 1951, Spring Term, 1952. FALL TERM, 1950 State V. Ardrey, from Mecklenburg ; assault with deadly weapon, etc.; defendant appealed; new trial; 232 N, C. 721. State V. Armstrong, from Gaston ; manslaughter ; defendant ap-pealed; new trial; 232 N. C. 727. 10 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. State V. Barber, from Carteret; violating motor vehicle laws; defendant appealed; appeal dismissed; 232 N. C. 577, State V. Best, from Craven; breaking and larceny, larceny and receiving; defendant appealed; no error; 232 N. C. 575. State V. Bowman, from Stokes; carnal knowledge; defendant appealed ; no error ; 232 N. C. 374. State V. Brown, from Forsyth ; rape ; defendant appealed ; no error; 233 N. C. 202. State V. Campo, from Mecklenburg; abandonment-nonsupport ; defendant appealed; no error; 233 N. C. 79. State V. Correll, from Mecklenburg; violating motor vehicle laws ; defendant appealed ; affirmed ; 232 N. C. 696. State V. Cottle, et al, from Sampson; conspiracy, stealing, etc.; defendants appealed; no error; 232 N. C. 567. State V. Eagle, from Forsyth ; violating motor vehicle laws ; de-fendant appealed; new trial; 233 N. C. 218. State V. Early, from Mecklenburg ; involuntary manslaughter ; defendant appealed; new trial; 232 N. C. 717. State V. Elliott, from Perquimans ; violating liquor laws ; de-fendant appealed; new trial; 232 N. C. 377. State V. Foy, from Forsyth; violating liquor laws; defendant appealed; affirmed; 232 N. C. 228. State V. Hendrick, from Warren ; murder first degree, with rec-ommendation; defendant appealed; reversed; 232 N. C. 447. State V. Hicks, from Craven ; assault with deadly weapon ; de-fendant appealed; appeal dismissed; 232 N. C. 520. State V. Hicks, et al.. from Mecklenburg; malicious injury to property; defendant appealed; reversed; 233 N. C. 31. State V. Hill, from Guilford ; involuntary manslaughter ; defend-ant appealed; reversed; 233 N. C. 61. State V. Holbrook, from Wilkes ; murder second degree ; defend-ant appealed ; no error ; 232 N. C. 503. State V. Jamieson, from Union ; violating lottery laws ; defendant apealed; affirmed; 232 N. C. 731. State V. Lambe, from Rowan ; assault with intent to kill, etc. ; defendant appealed; no error; 232 N. C. 570. State V. Lamm, from Wilson; murder first degree; defendant appealed; no error; 232 N. C. 402. State V. Lloyd, from Orange; violating motor vehicle laws; de-fendant appealed; reversed; 233 N. C. 227. State V. McDay, from Buncombe; nonsupport of minor child; defendant appealed ; new trial ; 232 N. C. 388. State V. Maples, from Moore; reckless driving; defendant ap-pealed; appeal dismissed; 232 N. C. 732. State V. Nelson, from Buncombe; assault on female; defendant appealed; new trial; 232 N. C. 602. State V. Pennell, from Caldwell ; murder second degree ; defend-ant appealed; no error; 232 N. C. 573. 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 11 State V. Phillips, from Wayne; involuntary manslaughter; de-fendant appealed; no error; 233 N. C. 87. State V. Randolph, from Caswell ; assault with intent to commit rape; defendant appealed; new trial; 232 N. C. 382. State V. Ray, from Johnston; manslaughter; defendant ap-pealed; no error; 232 N. C. 496. State V. Robinson, from Yancey; abandonment-nonsupport; de-fendant appealed; judgment vacated; 232 N. C. 418. State V. Sally, from Durham; manslaughter; defendant ap-pealed; new trial; 233 N. C. 225. State V. Sawyer, from Cumberland; violating liquor laws; de-fendant appealed; no error; 233 N. C. 76. State V. Smith, from Scotland; larceny; defendant appealed; af-firmed ; 233 N. C. 68. State V. Sumner, from Camden; violating motor vehicle laws; defendant appealed; no error; 232 N. C. 386. State V. White, from Chowan; larceny; defendant appealed; no error; 232 N. C. 385. State V. Wiggins, from Lenoir; involuntary manslaughter; de-fendant appealed; no error; 232 N. C. 619. State V. Worrell, from Wayne ; receiving stolen goods ; defendant appealed; no error; 232 N. C. 493. DISMISSED ON MOTION State V. Hall and Bowzer, from Washington. State V. Leary, from Craven. State V. McLawhorn, from Lenoir. State V. Liles, from Franklin. SPRING TERM, 1951 State V. Alston, et al., from Warren; breaking, entering, etc.; defendants appealed; no error; 233 N. C. 341. State V. Artis, from Wayne ; manslaughter ; defendant appealed ; no error; 233 N. C. 348. State V. Bovender, et al., from Forsyth; conspiracy, storebreak-ing, larceny and receiving; defendants Hale, King and King appealed; no error; 233 N. C. 683. State V. Bridgers, from Wake; breaking, entering and larceny; defendant appealed; new trial; 233 N. C. 577. State V. Buchanan, from Wake; violating liquor laws; defend-ant appealed; no error; 233 N. C. 477. State V. Carter, from Richmond; violating motor vehicle laws; defendant appealed; no error; 233 N. C. 581. State V. Cobb, from Guilford ; violating liquor laws ; defendant appealed; no error; 233 N. C. 647. State V. Cuthrell, from Camden ; house burning ; defendant ap-pealed; new trial; 233 N. C. 274. 12 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. State V, Edwards, from Wake; indecent exposure; defendant appealed; no error; 233 N. C. 492. State V. Ellers, from Granville ; receiving stolen goods, etc. ; de-fendant appealed; 1st bill, reversed, 2d bill, new trial; 234 N. C. 42. State V. Gibbs, from Beaufort ; violating liquor laws ; defendant appealed; no error; 233 N. C. 281. State V, Gibson, et al., from Guilford ; violating lottery laws defendants appealed; error and remanded; 233 N. C. 691. State v. Goins, from Randolph; manslaughter; defendant ap-pealed; no error; 233 N. C. 460. State V. Hicks, from Mecklenburg; conspiracy; defendant ap-pealed; no error; 233 N. C. 511. State V. Hovis, from Lincoln; involuntary manslaughter; de-fendant appealed; no error; 233 N. C. 359. State V. Jarrell, from Alleghany; assault with deadly weapon with intent to kill; defendant appealed; reversed; 233 N. C. 741. State V. McFarland, from Richmond ; assault on female ; de-fendant appealed; no error; 233 N. C. 648. State V. McMillan, from Bladen; murder first degree; defendant appealed ; new trial ; 233 N. C. 630. State V. Mobley, from Edgecombe ; violating photographer's act ; defendant appealed ; reversed ; 234 N. C. 55. State v. Mullis, from Iredell; assault with intent to rape; de-fendant appealed; no error; 232 N. C. 542. State V. Rhodes, from Lenoir ; violating liquor laws ; defendant appealed; no error; 233 N, C. 453. State V. Rogers, from Sampson; murder first degree; defendant appealed; no error; 233 N. C. 390. State V. Roy, et al., from Harnett; (Roy) assault with intent to rape; (Slate) assault on female; defendants appealed; no error; 233 N. C. 558. State V. Russell, from Buncombe; murder second degree; de-fendant appealed; no error; 233 N. C. 487. State V. Sherian, et al., from Richmond; assault with deadly weapon with intent to kill ; defendants appealed ; new trial ; 234 N. C. 30. State V. Simpson, from Cabarrus; violating motor vehicle laws; defendant appealed ; new trial ; 233 N. C. 438. State V. Sipes, from Guilford; robbery; defendant appealed; no error; 233 N. C. 633. State V. Thompson, from Chatham; nonsupport of illegitimate child; defendant appealed; judgment arrested; 233 N. C. 345. State V. Webb, et al., from Johnston; violating liquor laws; de-fendants appealed; reversed; 233 N. C. 382. State V. Wilkes, from Scotland; violating parking meter statute; special verdict; State appealed; affirmed; 233 N. C. 645. State V. Wood, from Cumberland ; carnal intercourse ; defendant appealed; new trial; 233 N. C. 636. 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 13 DISMISSED ON MOTION State V. Hall, from Jackson. State V. Shedd, from Macon. FALL TERM, 1951 State V. Benson, from Johnston; violating liquor laws; defend-ant appealed; new trial; 234 N. C. 263. State V. Brannon, et al., from Cherokee; manslaughter; defend-ants appealed; no error; 234 N. C. 474. State V. Bridgeman, from Yancey; trespass; State appealed; affirmed; 234 N. C. 262. State V. Brock, from Edgecombe; assault with deadly weapon; defendant appealed ; affirmed ; 234 N. C. 390. State V. Brock, et al., from Edgecombe; forfeiture of bail bond; defendants appealed; affirmed; 234 N. C. 391. State V. Cash, et al., from Cleveland; arson; defendant Cash ap-pealed ; new trial ; 234 N. C. 292. State V. Clark, from Buncombe; abandonment-nonsupport ; de-fendant appealed ; reversed ; 234 N. C. 192. State V. Cottle, et al., from Sampson ; robbery, etc. ; defendants appealed; appeal dismissed without written opinion; 234 N. C. 746. State V. Dobbs, from Gaston; violating liquor laws; defendant appealed; appeal dismissed; 234 N. C. 560. State V. Fuqua, from Caswell; violating liquor laws; defendant appealed; no error; 234 N. C. 168. Stae V. Gibbs, from Yancey ; trespass ; State appealed ; affirmed ; 234 N. C. 259. State V. Harper, et aid from Greene ; violating liquor laws ; State appealed ; new trial ; 235 N. C. 62. State V. Harper, et al from Greene ; violating liquor laws ; State fendant Harper appealed ; new trial ; 235 N. C. 67. State V. Holland, from Caldwell; (1) armed robbery, (2) assault with deadly weapon with intent to kill ; defendant appealed ; (1) reversed, (2) no error; 234 N. C. 354. State V. Home, from Buncombe ; larceny, etc. ; defendant ap-pealed; error and remanded; 234 N. C. 115. State V. Jenkins, from Edgecombe; violating liquor laws; defend-ant appealed; no error; 234 N. C. 112. State V. Kimmer, et al., from Iredell; breaking, entering, lar-ceny; defendants appealed; new trial; 234 N. C. 448. State V. Kirkman, from Guilford; violating liquor or narcotic laws ; defendant appealed ; no error ; 234 N. C. 670. State V. McLean, from Lee; involuntary manslaughter; defend-ant appealed; no error; 234 N. C. 283. State v. Marsh, from Surry; (1) robbery, (2) murder first de-gree; defendant appealed; (1) error and remanded (pro-visionally), (2) no error; 234 N. C. 101. 14 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. State V. Meadows, from New Hanover; violating motor vehicle laws ; defendant appealed ; affirmed ; 234 N. C. 657. State V. Minton, et al., from Wilkes; murder second degree; de-fendants appealed; no error; 234 N. C. 716. State V, Parker, from Johnston ; violating liquor laws ; defendant appealed; error and remanded; 234 N. C. 236. State V. Pillow, from Nash ; violating motor vehicle laws ; de-fendant appealed ; new trial ; 234 N. C. 146. State V. Sharpe, from Buncombe; nonsupport; defendant ap-pealed; reversed; 234 N. C. 154. State V. Shinn, from Cabarrus ; violating liquor laws ; defendant appealed; new trial; 234 N. C. 397. State V. Simmons, from Craven ; murder first degree ; defendant appealed; new trial; 234 N. C. 290. State V. Stallings, from Johnston ; violating liquor laws ; defend-ant appealed ; reversed ; 234 N. C. 265. State V. Tew, from Johnston; breaking, entering, larceny; de-fendant appealed; no error; 234 N. C. 612. State V. Wagstaff, from Person ; assault with deadly weapon with intent to kill, resulting in death; defendant appealed; new trial; 235 N. C. 69. State V. Warren, from Alamance; larceny; defendant appealed; new trial; 235 N. C. 117. State V. Washington, from Mecklenburg ; manslaughter ; defend-ant appealed; new trial; 234 N. C. 531. State V. Wilson, from Gaston ; nonsupport, etc. ; State appealed ; appeal dismissed; 234 N. C. 552. Dismissed on Motion State V. Terry, from Rockingham. SPRING TERM, 1952 State V. Birchfield, et al., from Graham; assault with deadly weapon with intent to kill, etc. ; defendants appeal ; no error 235 N. C. 410. State V. Bryant, from Sampson; larceny; defendant appealed; no error; 235 N. C. 420. State V. Cuthrell, from Camden; houseburning ; defendant ap-pealed; new trial; 235 N. C. 173. Stae V. Goodson, et al., from Buncombe; simple assault; defend-ants appealed; new trial; 235 N. C. 177. State V. Leonard, from Durham; perjury; Opinion not handed down. State V. McCoy, from Scotland ; murder first degree ; Opinion not handed down. State V. McCoy, from Johnston ; violating liquor laws ; defendant appealed; new trial; 235 N. C. 251. State V. Miller, from Beaufort; murder first degree; defendant appealed; appeal dismissed; 235 N. C. 394. 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 15 State V. Mills, from McDowell ; violating liquor laws ; defendant appealed ; no error ; 235 N, C. 226. State V. Morris, from Randolph ; violating motor vehicle laws ; defendant appealed; appeal dismissed; 235 N. C. 393. State V. Murphy, from Sampson; violating liquor laws; defend-ant appealed; no error; 235 N. C. 503. State V. Needham, from Stokes ; murder first degree—arson ; de-fendant appealed; reversed; 235 N. C. 555. State V. Parker, from Johnston ; violating liquor laws ; defendant appealed ; affirmed ; 235 N. C. 302. State V. Peacock, et al., from Johnston; violating liquor laws; Opinion not handed down. State V. Raynor, from Washington ; (1) public drunkenness, (2) resisting arrest ; defendant appealed ; (1) no error, (2) judg-ment arrested; 235 N. C. 184. State V. Reeves, from Buncombe ; rape ; defendant appealed ; no error; 235 N. C. 427. State V. Roman, from Davidson ; murder first degree ; defendant appealed; no error; 235 N. C. 627. State v. Scoggins, from Wake ; violating parking meter ordi-nance ; defendant appealed ; Opinion not handed down. State V. Scoggins, from Wake; violating parking meter ordi-nance; defendant aDpealed; Opinion not handed down. State V. Sears, from Cumberland ; assault with intent to rape ; defendant appealed; no error; 235 N. C. 623. State V. Simmington, from Guilford ; violating motor vehicle laws ; defendant appealed ; affirmed ; 235 N. C. 612. State V. Taylor, from Forsyth; violating liquor laws; defendant appealed ; Opinion not handed down. State V. Williams, from Wake; larceny; defendant appealed; no error; 235 N. C. 429. State V. Williams, from Guilford ; murder second degree ; defend-ant appealed ; no error ; 235 N. C. 752. State V. Wood, from Cumberland ; carnal intercourse ; defendant appealed; no error; 235 N. C. 636. Dismissed on Motion State V. Morris, from Beaufort. State V. Miller, from Beaufort. State V. Little and Mangum, from Cumberland. 16 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. SUMMARY Affirmed on defendant's appeal 77 affirmed on State's appeal 3 New trial or reversed on defendant's appeal 46 New trial on State's appeal 1 Error and remanded 4 Judgment arrested 3 Judgment vacated 1 Appeals dismissed 10 Dismissed on Motion 10 Opinion not handed down 6 Fees Transmitted by Attorney General to State Treasurer Since February 1950, Through February Term, 1952 State V Faulk $ 10.00 State V Sunimerlin 10.00 State V Bowman 10.00 State V Lamm 10.00 State V Holbrook 10.00 Statt V Worrell 10.00 State V Ray 10.00 State V Pennell 10.00 State V Hicks 10.00 State V Wiggins 10.00 State V Sumner 10.00 State V Lambe 10.00 State V Smith 10.00 State V Sawyer 10.00 State V Campo 10.00 State V Jamieson 10.00 State V Correll 10.00 State V Phillips 10.00 State V Cottle 20.00 State V Barber 10.00 State V Best 10.00 State V Gibbs 10.00 State V Hovis 10.00 State V Rhodes 10.00 State V Goins 10.00 State V Foy 10.00 State V Artis 10.00 State V Alston 10.00 State V Buchanan 10.00 State V White 10.00 State V Edwards 10.00 State V Hicks 10.00 State V Carter 10.00 State V Slate 10.00 State V Cobb 10.00 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 17 State V Sipes 10.00 State V McFarland 10.00 State V Bovender, et al 30.00 State V Roy 10.00 State V Fuqua 10.00 State V Jenkins 10,00 State V McLean 10.00 State V Cottle 10.00 State V Cottle, et al 10.00 State V Holland 10.00 State V Tew 10.00 State V Dobbs 10.00 State V Brock 10.00 State V Brock, et al 20.00 State V Kirkman 10.00 State V Meadows 10.00 State V Minton 10.00 State V Raynor 10.00 State V Brannon 20.00 State V Mills 10.00 State V Morris 10.00 State V Birchfield, et al 30.00 State V Parker 10.00 State V Wood 10.00 State V Murphy 10.00 State V Bryant 10.00 State V Sears 10.00 State V Simmington 10.00 $700.00 SUMMARY OF ACTIVITIES Staff Personnel Since the publication of the Biennial Report of 1948-50, a vacancy oc-curred in this office by the death of Assistant Attorney General Hughes J. Rhodes on the 16th of May, 1951. From the time of his appointment in July of 1942, until his untimely death. Assistant Attorney General Rhodes served this Department and the State in a most unselfish and highly efficient manner, and, in his passing, the State lost a valuable servant and official. The vacancy caused by the death of Assistant Attorney General Rhodes was filled by the appointment of Claude L. Love, of Asheville, on the 16th of August, 1951. Mr. Love served throughout the remainder of the biennium. 18 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. On the 16th of October, 1951, Assistant Attorney General Peyton B. Abbott resigned to enter the private practice of law, and on the 17th of October, 1951, Harry W. McGalliard was appointed to fill the vacancy caused by this resignation, and he served in this capacity throughout the remainder of the biennium. Effective the 30th of January, 1952, Assistant Attorney General James E. Tucker resigned to enter the private practice of law, and Dr. I. Beverly Lake, of Wake Forest, was appointed to fill this vacancy, and he served in this capacity throughout the remainder of the biennium. On the 1st of March, 1952, Clifton W. Beckwith resigned his position as Director of the Division of Legislative Drafting and Codification of Statutes and as Director of the Division of Statistics, and Charles G. Powell, Jr., a member of the staff of the Department, was appointed to succeed him. Mr. Powell served in this capacity throughout the remainder of the biennium. Edward B. Hipp was appointed to the position of Revisor of Statutes to fill the vacancy created when Mr. McGalliard was appointed Assistant Attorney General. John R. Jordan, Jr., member of the staff, resigned and was succeeded on the 15th of March, 1951, by Charles G. Powell, Jr., and upon the vacancy caused by the appointment of Mr. Powell to succeed Mr. Beck-with, resigned, Robert L. Emanuel was appointed as a member of the staff on the 1st of July, 1952. Walter F. Brinkley, member of the staff, resigned to enter the private practice of law and was succeeded by the appointment of Robert B. Broughton on the 1st of July, 1951, who served in this capacity throughout the remainder of the biennium. Samuel Beh-rends, Jr., was appointed on the 1st of June, 1952, as a member of the staff to succeed Mr. Hipp when he was appointed to the position made vacant by Mr. McGalliard. Assistant Attorneys General T. W. Bruton, Ralph Moody, and John Hill Paylor served throughout the biennium. The secretarial staff of the office serving most of the time during the biennium is as follows: Mrs. Rennie R. Dupree, Miss Elizabeth Flournoy, Mrs. Emma Lee Jackson, Mrs. T. P. Norwood, Miss Elizabeth Kelly, Miss Lillian Turner, Mrs. Millicent S. Kincaid, Mrs. Charles W. Purcell, and Mrs. Myrtle K. Pope. Office Conferences and Consultations With State Officers AND Departmental Officials Under the provision of the State Constitution, Article III, Section 14, the Attorney General is made, ex officio, legal adviser of the Executive Department. G. S. 114-2 requires the Attorney General to represent all State institutions, including the State's prison, whenever requested so to do by the official head of such institution, and to give, when required, his opinion upon all questions submitted to him by the General Assembly, or either branch thereof, or by the Governor, Auditor, Treasurer, or any other State officer. The cooperative relations existing between the Attorney General's office and the heads of all the State's agencies and departments, as well as vnih other State officers, have made it very pleasant to perform the duties 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 19 thus prescribed by the Constitution and the statute. Nothwithstanding this happy relationship, the conferences and advice to various State officials have necessarily taken a great deal of the time of the Attorney General and his staff. The expanding activities of State Government have given rise to increasing problems involving the application of new laws as well as the construction of old statutes. Many questions arising in connection with the State's affairs have been presented to the office, most of which have been settled satisfactorily, and litigation minimized. Appreciation is expressed to Governor Scott and all other State officials and heads of various State departments for the consideraion shown us dui'ing this biennium. It has been a source of great pleasure to all the members of the staff of this office to work in coopei'ation with these State officials. In the interest of economy, it will be noted that official and advisory opinions are not set out in full in this Report. Selected opinions have been digested and only these digests are printed. Should there be any demand for an exact copy of any of the opinions digested, the same may be secured by a request to this office stating the subject matter and the date of the opinion. Summary of the Constitutional and Statutory Duties OF THE Attorney General To make a report upon all the activities of the Attorney General and this Department, it would be necessary to g'o into greater detail than is possible in this summary. References are herein given to provisions of the Constitution of North Carolina, and laws enacted in pursuance thereto, prescribing the duties and functions of the Attorney General. As legal adviser to the Council of State and as a member of the various boards and commissions hereinafter listed, the participation of the Attor-ney General in the consideration of matters coming before meetings of the Council of State and such boards and commissions will be disclosed in the reports made therefrom. It is not required that they should be further detailed in this Report. The Constitution of North Carolina, Article III, Section 13, provides that the duties of the "Attorney General shall be prescribed by law." Pursuant to this section, the General Assembly has vested in the Depart-ment of the Attorney General the following powers, obligations, and duties : G. S. 114-2. "Duties.—It shall be the duty of the Attorney General— "1. To defend all actions in the supreme court in which the state shall be interested, or is a party; and also when requested by the governor or either branch of the general assembly to appear for the state in any court or tribunal in any cause or matter, civil or criminal, in which the state may be a party or interested. "2. At the request of the governor, secretary of state, treasurer, auditor, corporation commissioners, insurance commissioner or super-intendent of public instruction, he shall prosecute and defend all suits relating to matters connected with their departments. "3. To represent all state institutions, including the state's prison, whenever requested so to do by the official head of any such institution. 20 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. "4. To consult with and advise the solicitors, when requested by them, in all matters pertaining- to the duties of their office. "5. To give, when required, his opinion upon all questions of law submitted to him by the general assembly, or by either branch thereof, or by the governor, auditor, treasurer, or any other state officer. "6. To pay all moneys received for debts due or penalties to the state immediately after the receipt thereof into the ti-easury." To institute actions to recover taxes due under the Revenue Act (G. S. 105-239), and to approve all tax refunds made by the State (G. S. 105-407), To enforce the statutes relative to monopolies and trusts (G. S. 75-9 to 75-15). To institute actions to prevent tdtra vires acts on the part of corpora-tions, or to dissolve corporations for certain offenses (G. S. 55-47, 55-124, 55-126). To institute quo warranto proceedings to oust persons who have usurped, who unlawfully hold, or who have forfeited public offices, and to begin actions to protect State lands (G. S. 1-515). To see that the solicitors prosecute violations of the act relating to the practice of medicine (G. S. 90-21). To enforce charitable trusts (G. S. 55-47). To prescribe the rules of practice for land registration under the Tor-rens Act (G. S. 43-3). To institute proceedings for the dissolution of fratei'nal insurance so-cieties (G. S. 58-297 to 58-298). To appear on behalf of the court or other officers on appeal in contempt proceedings (G. S. 5-3). To investigate extradition cases, at the request of the Governor (G. S. 15-58). To institute actions to enforce the rulings and orders of the Utilities Commission, and to represent said Commission in the enforcement of intra-state rates before the Interstate Commerce Commission and in Federal or State courts (G. S. 62-63 and 62-6). To give advice to the State Board of Elections as to the form of ballots (G. S. 163-141). To institute action against persons, firms or corporations who violate the terms of the act regulating the quality of agricultural seeds. This duty may be delegated to the attorney of the county or city in which the viola-tion occurred (G. S. 106-284). To approve deeds and grants to the State of property given to, or purchased by, it for park purposes (G. S. 113-34). To collect from inmates of State institutions the cost of their upkeep, provided they are able to pay (G. S. 143-124). To approve the grant of easements by State institutions to public-service corporations (G. S. 143-151). To act as legal adviser and institute necessary condemnation proceed-ings for the North Carolina Cape Hatteras Seashore Commission (Ch. 257, P. L. 1939). To enforce rules and regulations adopted by the Commissioner of Labor relating to safety devices (G. S. 95-13). To witness the burning of cancelled State bonds and coupons (G, S. 142-13), 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 21 To collect the delinquent taxes due the State Board of Health (G. S. 130-13). The Attorney General is a member of, or adviser to, the following boards, councils, and commissions: Legal adviser to the Executive Department (Const., Art. Ill, S. 14) ; member of the State Board of Assessments (G. S. 105-273), of Advisory Board of Paroles (G. S. 148-50), of State Banking Commission (G. S. 53-92), of Board of Public Buildings and Grounds (G. S. 129-2), of Municipal Board of Control (G. S. 160-195), of the Eugenics Board (G. S. 35-40) ; North Carolina Armory Commission (G. S. 143-229), State Art Society (G. S. 140-1), and the Judicial Council (Chapter 1052, Session Laws of 1949). State Bureau of Investigation There is included in this volume a report of the State Bureau of Inves-tigation made by Mr. James W. Powell, the Director of the Bureau. As appears from this report, the activities of the Bureau have been greatly increased. Attention is diiected to the report made by Mr. Powell for a detailed statement of the activities of this Bureau. Advisory Opinions to Local Officials The Department has continued the historic practice of providing, upon requests of county, city and other local official bodies, advisory opinions upon numerous questions which have arisen in the administration of local government. The Institute of Government publishes the magazine "Popular Govern-ment" which has for several years carried a digest of opinions of the office given to local units of government. This service has tended to unify prac-tice and procedure with local governments and has made available to them the digest of the opinions of the office on subjects in which they are interested. If space permitted, it would be my desire to publish in this Report a full copy of all the digests of opinions of this office. On account of the limitations of the Report, there is herewith published a number of digests of selected opinions. We have every reason to believe that this advisory service is appre-ciated by our local officials and that it has a tendency to standardize the practices in various localities of the State in the construction and carry-ing out of statutory provisions. Tort Claims Against State Department, Institutions AND Agencies The 1951 Legislature, by Chapter 1059, waived to a certain degree the States Governmental immunity and authorized the institution of Tort Claims against all departments, institutions and agencies of the State for damages caused by negligent acts of a State employee while acting within the scope of his employment. This Act imposed the duty upon the Attorney General to represent all departments, institutions and agencies of the State, other than the State Highway and Public Works Commission. 22 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL. The following table reflects the activities of the Attorney General's office with regard to this responsibility: Tort Cases disposed of 226 Tort Cases pending for trial before Industrial Commission 80 Tort Cases under investigation for settlement 52 Tort Cases pending in Superior Court 2 Using the State Board of Education as an example, we find that the 1951 General Assembly authorized a total of 211 claims against that Board. These claims had a total claim value of $100,815.00. At the present time 142 of these claims have been disposed of either through settlement or court action at a cost of $37,440.00. Nineteen of the authorized claims amounting to $6,835.00 were denied. This leaves 50 of the original claims with a total amount of $14,718.00, left for disposition. During the 1951-52 period and up to the present date 75 additional claims have been filed against the State Board of Education in the amount of $21,269.00. Seventy of these claims have been disposed of either through settlement or court action at a cost of $15,300.00. There are five of these cases pending now amounting to $5,966.00. A large number of claims against other agencies of the State have been disposed of, but a break-down on this activity is not available. There are, however, at the present time approximately ten cases set for hearing against other departments, institutions and agencies, totaling $41,161.03. Hearings on tort claims were conducted in nearly every county in the State and it was necessary for a member of the Staff of this office to make personal appearances in most cases. Since the State has waived its tort immunity and has established the Industrial Commission as a per-manent court to hear claims as they arise, it is expected that the number of tort claims will steadily increase in the future. Division of Legislative Drafting and Codification of Statutes No change was made in the biennium as to the duties of this office in assisting members of the General Assembly and the State and local officials in the drafting of legislation. One personnel change was made, however, when Clifton W. Beckwith, Director of this Division since 1945, resigned and was succeeded by Charles G. Powell, Jr. The 1951 Session of the General Assembly made the usual calls upon this office for bill drafting service and approximately 1850 bills were drafted for consideration by the Legislature. Many of these bills were very important ones and had to be written and rewritten many times before pvit into final shape. This is a service in which the entire staff of the Attorney General's office participates. Appreciation is expressed for Joint Resolution No. 33, adopted by the General Assembly of 1951, with respect to this work. The recompilation of the General Statutes is proceeding on schedule. Volumes II and III of the 1943 Statutes have been recompiled and work will begin on Volume I at the conclusion of the 1953 General Assembly. 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 23 It is also hoped that during the biennium work can be done on the Index to the General Statutes which will bring that volume up to date with the recompiled volumes. General Statutes Commission—Revisor of Statutes In 1947 the General Assembly created the position of Revisor of Statutes on the staff of the Attorney General to serve as ex officio Secretary of the General Statutes Commission and to carry out the duties of the Division of Legislative Drafting and Codification of Statutes relating to continuous statutory research and correction. The primary purpose in creating this position was to have a full-time research lawyer to work with the General Statutes Commission on the ambiguities, conflicts, duplications and other imperfections in the form and expression of the statutes, and to consider suggestions submitted from out-side sources for improvement in the statutes. It soon became apparent that many of the changes which were needed in the General Statutes amounted to more tiian mere imperfections of form and expression and that work was needed on substantive revision of the statutes. In 1951 the General Assembly gave the General Statutes Commission the additional duty of recommending the enactment o? such substantive changes in the law as the Commission might deem advisable. Since that time, the principal work of the General Statutes Commission and the Re-visor of Statutes has been in the field of substantive law revision. Sevei'al recommendations for substantive changes have already been made to the General Assembly by the Commission and bills have been enacted com-pletely rewriting the laws relating to attachment and garnishment, judicial sales, execution sales, sales under a power of sale and examination before trial. The Commission will make recommendations to the 1953 General Assem-bly for major revisions of the laws relating to conveyances by devisees and heirs, attachment and garnishment of safe deposit boxes, execution, revo-cation and probate of wills, inst?'uments to secure future advances, regis-tration of mortgages, service of process by publication and survivorship in joint bank accounts. A general revision of the entire Corporations Chapter is being undertaken through a special Corporation Law Drafting Committee composed of corporation law experts from the three law^ schools, and it is hoped that the first of the recommendations in this field will be ready for the 1953 General Assembly. The present Revisor is Edward B. Hipp, who succeeded Harry McGal-liard when the latter was appointed Assistant Attorney General in Octo-ber, 1951. The present members of the General Statutes Commission, to-gether with the sources of their appointments, are: Messrs. Robert F. Moseley, Chairman, Greensboi'o, N. C, (N. C. State Bar Pres.), Malcolm McDermott, Vice Chairman, Duke University Law School, (Dean, Duke Univ. Law School), Luther E. Barnhardt, Concord, N. C, (Lt. Gov.), Henry A. McKinnon, Lumberton, N. C, (N. C Bar Ass'n. Pres.), Frank W. Hanft, University of N. C. Law School, (Dean, U. N. C. Law School), J. Spencer Bell, Charlotte, N. C, (Governor), Robert Lassiter, Jr., Charlotte, 24 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. N. C, (Speaker of the House), William Joslin, Raleigh, N. C, (Governor), William C. Soule, Wake Forest Law School, (Dean, Wake Forest Law School). This Commission, as required by law, will make a separate Re-port to the General Assembly covering in detail the full extent of its ac-tivities. Criminal Cases of Specl\l Interest State V. CuthreU, 233 N. C. 27^ and 235 N. C. 173 This was a prosecution under G. S. 14-62 for wantonly and wilfully aiding, counseling and procuring another person to burn a building or erection used in carrying on a trade or manufacture. In the first opinion the court held that the defendant's plea of not guilty placed the burden upon the State to prove beyond a reasonable doubt (1) the fire, (2) that it was of incendiary origin, (3) and that defendant was connected with the crime. The Supreme Court sent the case back for a new trial because in his testimony the sheriff of the county expressed the opinion that the fire was of incendiary origin. On the second trial the defendant raised the question whether the structure involved was "a building" because the evi-dence disclosed that the structure was not quite complete although it had been used for a business purpose on one occasion. The Supreme Court again sent the case back for a new trial on ground that under the de-fendant's plea of not guilty it was incumbent upon the State to prove beyond a reasonable doubt that the structure in question was a building; and that under the circumstances of this case an issue of fact to be de-termined by the jury was raised. This case brings very pointedly to the attention of the Bench and Bar the fact that G. S. 14-62 needs to be amended. State V. Parker, 23i N. C. 236 and 235 N. C. 302 In this case the defendant was arrested on a warrant issuing out of the Recorder's Court of Johnston County charging the defendant with un-lawful possession of intoxicating liquor upon which taxes due the United States Government and the State of North Carolina had not been paid. When the case came on for hearing the defendant demanded a jury trial. Under the practice in the Recorder's Court, this automatically worked a continuance of the case. At the next term of the Superior Court of John-ston County, the defendant was indicted by a grand jury on four counts as follows: (1) conspiracy to unlawfully possess intoxicating liquor upon which taxes due the United States and the State of North Carolina had not been paid; (2) unlawful possession of ninety-six gallons of intoxicat-ing liquor upon which taxes had not been paid; (3) unlawful possession for the purpose of sale of intoxicating liquor upon which taxes had not been paid; (4) illegal transportation of liquor. The defendant was ac-quitted on the count of illegal transportation and convicted on the other three counts. He appealed to the Supreme Court from the judgment pro-nounced on the verdict. The Supreme Court reversed the conviction on the count of conspiracy, affirmed the conviction on the count of illegal possession for the purpose of sale and sent the case back to the Recorder's 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 25 Court for trial on the count of illegal possession of intoxicating liquor, since that court had first acquired jurisdiction on that count. The case was also sent back to the Superior Court of Johnston County for a new sentence on the other count. The case came on for hearing in the Recorder's Court before the Superior Court of Johnston County again convened. At the trial in the Recorder's Court the defendant was acquitted on the count of illegal possession. When the case was called in the Superior Court for the purpose of pronouncing judgment on the count of illegal possession for the purpose of sale, the defendant pleaded former jeopardy and former acquittal. These pleas were overruled and the defendant was sentenced to a term on the roads. Upon appeal to the Supreme Court of North Caro-lina the judgment was affirmed. The defendant now seeks a writ of cer-tiorari from the Supreme Court of the United States to have that court review the judgment of the Supreme Court of North Carolina. The appli-cation for certiorari will be heard at the October 1952 term of the Supreme Court of the United States. State V. Williams, 235 N. C. 4^9 This was an indictment in the Superior Court of Wake County, charging the felony of larceny. The jury returned a verdict of "guilty of larceny of property of the value in excess of $50." The defendant was sentenced for a term of eighteen months on the roads. On appeal to the Supreme Court it was admitted by the defendant that the judgment was within the limits of the punishment allowed for misdemeanors, but contended that under the verdict he had been convicted of a felony and would therefore lose his citizenship under the provisions of Article 6, Section 8, of the State Constitution. The Supreme Court held that notwithstanding the ambiguity in the verdict and the fact that the judge in his charge had stated to the jury that the larceny of personal property to the value of more than $50 is a felony, the law is that under G. S. 14-72 the offense is a felony only in case the value of property shall exceed $100. Therefore, it was held that the defendant had suffered no loss of citizenship. State V. Roman, 235 N. C. 627 This was a prosecution upon a bill of indictment charging the defendant with murder in the first degree in the killing of Mrs. Beulah Miller Hin-shaw in Davidson County. The evidence in the case was all circumstantial but it pointed unerringly to the guilt of the defendant, a Negro man about thirty years of age. The victim was a white woman approximately sixty-five years of age. The defendant was employed at an ice plant, working at night. He left the plant around 9 o'clock on a Sunday night and returned around 11:30. During the time the defendant was absent from the plant, Mrs. Hinshaw was brutally murdered and raped. The trial jury was selected from a special venire ordered from Guilford County. Four mem-bers of the Negro race sat on the jury. The Supreme Court affirmed the conviction and the defendant has been executed according to law. 26 biennial report of the attorney general [vol. Civil Cases of Special Interest North Carolina Art Society et al. v. Bridges, State Aiiditor, 235 N. C. 125 Chapter 1168, Session Laws of 1951 provides that the purchase of any works of art acquired under the provisions of Chapter 1097, Session Laws of 1947, shall be approved by the Board of Directors of the Executive Committee of the North Carolina State Art Society and appraised by the Director or Chief Curator of the National Gallery of Art, Washin^on, D. C, as to value, fitness and desirability. The Art Society arranged to purchase certain valuable works of art in conformity with the provisions of the 1947 Act, but the Director and Chief Curator of the National Gal-lery of Art declined to appraise said purchases as to value, fitness and desirability. Subsequently, the Commission was able to secure the sei-vices of Dr. William R. Valentiner, Director of the Los Angeles County, Cali-fornia Museum of Art, to appraise said paintings. The State Auditor de-clined to issue his warrant in payment of said works of art upon the ap-praisal of Dr. Valentiner, taking the position that the provisions of Chap-ter 1168, Session Laws of 1951, are mandatory. The Superior Court of Wake County held that the legislative intent in passing the statute was to guarantee a competent appraisal of the works of art before public funds could be expended in payment thereof and that it was not the intent of the legislature to require an appraisal by any particular individual or by the holder of any particular position in the art world. This decision of the Superior Court was affirmed by the Supreme Court, the court holding that the pi'ovisions of the statute in question are directory and not mandatory. School District Committee v. Board of Education, 235 N. C. 212 This was a civil action for the purpose of enjoining the Board of Edu-cation of Gates County from putting into effect a program for the con-solidation of school districts in that county. In Gates County two local bond taxing districts have been created under the provisions of Chapter 279, Public Local Laws of 1937, as amended by Chapter 149 of the Pub-lic Local Laws of 1947. This act as originally passed applied only to Buncombe County, the 1917 act made the 1937 act applicable to Gates County. The Superior Court held that a district created under the above statutes is a municipal corporation and cannot be consolidated with other school districts. The State Board of Education requested the Attor-ney General to file a brief in the case amicus curiae. This was done. In the brief the Attorney General pointed out that all school districts in the State were were abolished by Section 4, Chapter 562, Public Laws of 1933, except for the one purpose of paying the then existing school in-debtedness. This same act authorized the State School Commission (now the State Board of Education), with the approval of the County Board of Education, to create new districts for administrative purposes only. In the brief it was pointed out that districts created under the 1933 act exist for administrative purposes only, while districts created under the 1937 act as made applicable to Gates County by the 1947 act, exist for the sole purpose of creating an indebtedness to pay for school buildings. There- 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 27 fore, the administrative district containing the area existing for the sole purpose of paying the school indebtedness, may be consolidated with other non-tax territory. The Supreme Court agreed with the position taken by the Attorney General and reversed the decision of the Superior Court. Watkins v. Shaw, Commissioner of Revenue, 234 N. C. 96 As stated by the Court, the question presented in this case was as follows : "Should the cash value of United States Savings Bonds, Series E, issued and made payable to the purchaser or his wife, as co-ovniers, be included in the estate of the purchaser for inheritance tax purposes, where the purchaser expended his own funds in the acquisition of the bonds and kept them in a place accessible to both the purchaser and his wife, but made no inter vivos gift of the bonds to his wife?" Among the provisions printed on the face of the bonds in question was one to the effect that the bond was issued piirsuant to Treasury Depart-ment Circular No. 653, Second Revision, which circular provided in part: "The bonds shall be subject to estate, inheritance, gift or other excise taxes, whether Federal or State . . ." Another Treasury Department Circular provision provided in part: ". . . If either co-owaier dies without the bond having been presented and surrendered for payment to or authorized reissue, the surviving owner will be recognized as the sole and absolute ovmer of the bond and payment or reissue, as though the bond were registered in his name alone, will be made only to such survivor. . . ." The Court held that in view of the Treasury Department Regulations and the inheritance tax statutes of this State, specifically G. S. 105-2, the title to the bonds in question passed by succession to the wife, and the cash value thereof should, upon the death of the purchaser, who was the husband, be included in his estate for inheritance tax purposes. Wiscassett Mills Comqxtny v. Shaiv, Commissioner of Revenue, 235 N. C. H Wiscassett Mills Company donated certain real estate for public school and hospital purposes. It was admitted that the land donated to the hospital was acquired in 1898 for the sum of $278.40 and that the reason-able market value of the land in 1946 on the date of the gift was $23,500. It was admitted also that the land donated to the School Board was ac-quired in 1898 for the sum of $225.00 and that the reasonable market value of the land in 1947 on the date of the gift was $6,000. It was further admitted that both gifts were deductible for income tax purposes. The sole question presented in this case was whether the value of the gifts for the purposes of the deduction should be fixed as of the date of the acquisi-tion in 1898, as contended by the Commissioner of Revenue, or as of the date of the gift, as contended by the Wiscassett Mills Company. It was held in the Superior Court that "when a contribution is made in property rather than in cash, the amount of the gift, and the amount of the deduc-tion, is the fair market value of the property at the time of the gift," and this was affirmed by the Supreme Court on appeal. 28 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. A second question presented in this case related to the deductibility of a contribution made by the Mills Company to a municipality, but it is of little future importance inasmuch as the General Assembly, since the date of the contribution in question, has amended the Revenue Act to permit deductions of gifts to municipal corporations. Watson Industries v. Shaw, Commissio7ier of Revenue, 235 N. C. 203 In the first cause of action in this case, Watson Industries, hereinafter called the taxpayer, sought to recover use taxes paid under protest. The taxpayer had purchased from an out-of-state corporation the necessary fabricated parts for the construction of four radio towers. The Commis-sioner of Revenue assessed a use or excise tax against the total purchase price of such parts at the rate of three per cent. Taxpayer paid the tax so assessed in excess of $60, under protest. As set out in the agreed statements of facts, the taxpayer purchased "articles and items of tangible personal property costing $26,855.40, which when joined together, connected, assembled, and erected at plaintiff's loca-tion in Wilson, resulted in four radio towers, complete v^^ith earth anchors and mounting plates. Said articles and items, although constituting four allotments or four groups of articles or items—one group for each tower — were designed to form and did form four radio towers, and the purchase was made as four radio towers." The taxpayer contended that it bought four "single articles", namely, four radio towers, and that inasmuch as the maximum use tax levied with respect to a "single article" is $15.00, a total tax of only $60.00 should be assessed. The Commissioner of Revenue contended that the articles and materials which made up the four radio towers would not constitute four "single articles" and that quite aside from the question as to whether or not each radio tower constituted a single article, the articles or parts purchased by the taxpayer for use in the erection of the radio tower constituted tangible personal property entering into a structure in this State and, therefore, were subject to a straight 3% use tax, pursuant to G. S. 105-187. It was not contended by the taxpayer that any single part entering into a radio tower cost in excess of $500.00. It was held in the Superior Court that each radio tower was a single article and subject to a maximum use tax of $15.00 each. This judgment was reversed in the Supreme Court and it was held that the materials entering into and becoming a part of the radio tower were subject to a straight S% use tax pursuant to the provisions of G. S. 105-187 above referred to. In a second cause of action in the same case, the question was presented as to whether the rentals of radio transcriptions for broadcast by radio stations in this State were subject to the use tax. It was held in the Superior Court that such transcriptions were subject to the use tax, but this judgment was reversed in the Supreme Court where it was held that the furnishing of radio transcription service did not give the radio stations "possession of tangible personal property" which would be essential in such a case before the use tax would attach. DIGEST OF OPINIONS TO GOVERNOR State Property Fire Insurance Fund; Payment of Loss of Buildings Which Will Not Be Rebuilt 15 December 1950 G. S. 58-191, which sets up the State Property Fire Insurance Fund, is intended to provide funds to restore property which has been destroyed ^y fire in the event the State agency having the same in charge finds it necessary or desirable to restore the property. In the event the funds are not to be used for this purpose, no payment should be made from the insurance fund to the agency having such property in charge. State Board of Education; Membership of Board; Failure of Joint Session of General Assembly to Confirm Appointment of Successors; What Constitutes Vacancy 19 April 1951 If the term of the incumbent to an office which is to be filled by an appointment by the Governor by and with the consent of the Senate has expired, but he still continues to discharge his duties, there is no such vacancy in the office as will authorize the Governor to fill it by appoint-ment of a successor without the consent of the Senate. Publicly Owned Vehicles; Violation—Misdemeanor and Removal from Office 11 June 1951 Violation of Statute against public use of state-owned vehicles is a mis-demeanor and subjects violator to removal from office. Extradition; Waiver; Expense in Felony Charge; State v. Mack Cottrell—State of Oregon 20 June 1951 The State of North Carolina pays th? expenses of an extradition agent only in those cases where the crime charged is that of a felony. In such cases, the traveling expenses of the extradition agent are to be the actual traveling expenses necessarily incurred by him for travel on common car-rier. The extradition statute does not allow expenses for a guard, nor does it allow telephone and telegraph long-distance telephone calls. North Carolina Building Code; Authority to Make Changes in Building Code 3 March 1952 Under the provisions of G. S. 143-139, the Building Code Council is authorized to make changes in the Building Code provided such changes 30 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. are less string^ent than those set forth in the Building Code adopted by the statute. There is no limitation provided by the statute as to the num-ber of changes which could be made by the Building Code Council provided they are less rigid and less stringent than those set forth in the Building Code. All such changes must be approved by the Insurance Commissioner. Executive Budget Act; Authority of the Director to Delegate Powers 12 June 1952 Under the provisions of G. S. 143-29, the Governor, as Director of the Budget, has authority to delegate all powers given him under the Executive Budget Act to any person or persons designated or appointed by him from time to time in writing. The only exception to this authority to delegate his powers is that the Budget Message must be presented by him to the General Assembly. The Governor is not authorized to delegate this power and duty to any other person. DIGEST OF OPINIONS TO SECRETARY OF STATE Corporations; Foreign Corporations Purchasing Notes and Mortgages Upon Real Estate Located in This State; Requirement of Domestication 21 August 1950 Foreign corporations purchasing notes and mortgages upon real estate located in this State and who, by contract with a bank or other corporation authorized to do business in this State, have such loans serviced through such bank or corporation in this State by collecting the installments of principal and interest, keeping the property insured, reporting on the necessity for repairs, and assisting with foreclosures, are not required to domesticate in this State. Secretary of State; Trademarks; Refusal of Registration of Similar Trademarks; Trademark "Gold Medal" 18 April 1951 G. S. 80-6 provides that it shall not be lawful for the Secretary of State to register for any person any label, trademark, term or design that is in the identical form of any other label, trademark, term or design thereto- •U] BIENNIAL REPORT OF THE ATTORNEY GENERAL 31 fore filed by any other person. The provision even prohibits a label or trademark of near resemblance which would be calculated to deceive or that would be mistaken for the original trademark so registered. Foreign Corporations; Increase in Capital Stock With No Par Value 2 October 1951 Foreign corporations who increase their capital stock which has no par value must pay the tax required by G. S. 55-118 based on a valuation of $100 per share. See G. S. 55-77. Foreign Corporations; Domestication; Huckabee Transport Corporation 16 August 1951 A foreign corporation engaged exclusively in interstate commerce is not required to domesticate in this State. DIGEST OF OPINIONS TO STATE AUDITOR Law Enforcement Officers' Benefit and Retirement Fund; Additional Cost of $2.00 to Be Taxed in Bills of Cost in Criminal Cases; Judgment That the Defendant Pay the Costs for Which the County Is Liable 29 February 1952 Where an order is made that the defendant pay the costs for which the county is liable, the item of $2.00 which is paid to the treasurer for the benefit of the Law Enforcement Officers' Benefit and Retirement Fund must also be included in the bill of costs paid and collected. DIGEST OF OPINIONS TO STATE TREASURER State Bonds Which Have Been Lost, Stolen, or Destroyed; Provision for Settlement or Replacement 5 June 1951 When it has been satisfactorily shown to the State Treasurer and the Governor and Council of State that bonds of the State have been lost, destroyed, or stolen, settlement may be made therefor or new bonds issued 32 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. in lieu thereof, provided an indemnity bond is furnished to the State Treasurer in double the amount of said lost, destroyed, or stolen bonds. See G. S. 98-19. State Treasurer; Sinking Fund Investments; Authority to Invest Sinking Funds and Retirement Funds in Housing Authority Bonds 17 July 1951 Under G. S. 157-25, the State Treasurer is authorized to invest sinking funds and Retirement funds in Housing Authority bonds, provided he uses reasonable care in selecting such securities. School Vouchers; Signatures by Machine; Use of Signature of Vice ! Chairman During Illness of Chairman of City Board of Education 11 December 1951 School vouchers must be signed in the name of the Chairman of the School Board when using the check writing machine unless there is some local act authorizing- the appointment of a Vice Chairman to perform duties in the absence of the Chairman. Personnel Act; Accumulation of Sick Leave for State Employees 3 April 1952 Sick leave granted to State employees is prescribed as ten days for each calendar year, accumulative from year to year beginning the 1st of Octo-ber, 1925. DIGEST OF OPINIONS TO STATE SUPERINTENDENT OF PULIC INSTRUCTION Municipal Corporations; Abandoned Street; Use of For Other Than Street Purposes 14 August 1950 G. S. 136-96 provides that any road or street not actually opened and used within twenty years after dedication shall be conclusively presumed to have been abandoned. However, the dedicator or those claiming under him must record in the office of the Register of Deeds a declaration of withdrawal. SHEETS v. WALSH, 215 N. C. 711. Following abandonment title to the street reverts to the original owner, and in the absence of evidence to the contrary, there is a presumption that the fee remains in the abutting proprietor. WHITE v. R. R., 113 N. C. 61L 31] biennial report of the attorney general 33 Schools; Buildings; Sites; Right to Build on Site Not Owned by School Unit 17 January 1951 G. S. 115-88 provides that county and city boards of education shall make no contract for the erection or repair of any school building unless the site on which it is located is owned by said board. Therefore, it is thought that the Board of Education of Graham County could not legally construct a school building on property not owned by said Board and which is located in a National Forest owned by the Federal Government. County Board op Education; Number of Board Members Necessary for a Quorum 20 March 1951 A majority of the members of a county board of education constitute a quorum for the transaction of business. When a board is composed of five members and one member resigns, the remaining four members con-stitute a legal board for the transaction of business. Such board may take any legal action which by law it could take if the action is supported by a majority of the membership of the board at the time such action is taken. If there should be a tie vote, there would be no way of breaking the tie until a new member has been appointed and qualifies. Schools; Enforcement of Truancy Law As to Child With I.Q. Below 70. 17 April 1951 G. S. 115-303 makes it the duty of the State Board of Education to for-mulate necessary rules and regulations for the enforcement of compulsory attendance law. This section further provides that mental incapacity shall be an excuse for nonattendance and is interpreted to mean feeble minded-ness or such nervous disorder as to make it either impossible for such child to profit by instruction given in the school or impracticable for the teacher to properly instruct the normal pupils of the school. Commercial Education; Licensing of Commercial Schools; Operation of Commercial Schools for Out-of-State Students ,13June 1951 Any person, firm, or corporation desiring to operate a commercial or correspondence school in this State must apply for and obtain a permit from the State Board of Education to engage in such business even though such school is operated only for nonresident students. G. S. 115-325 et seq. 34 biennial report of the attorney general [vol. School Law; Sale of School Property 18 June 1951 So long as the provisions of G. S. 115-86 are complied with there is no legal objection to the sale of school property through real estate dealers. State Board of Education; Allocation for Architects' Fees for School Buildings in Washington County 20 June 1951 The State Board of Education has the authority to allocate to counties funds which would include funds for payment of architects' fees for plans for school buildings to be constructed from such allocations. Schools; Bond Issue; Allocation of Funds; Changes Permissible 3 August 1951 When a bond issue has been approved for making improvements on a school building and it is subsequently determined in good faith that the site and building are unsuited for educational purposes, the Board of Com-missioners and Board of Education of a county may allocate funds derived from said bond issue towards a new building provided such diversion does not involve any change of purpose for which the school bonds were issued but only a change in the manner or method of accomplishing that purpose. Double Office Holding; Town Commissioner and School Committeeman 8 August 1951 The office of town commissioner and that of school committeeman are both public offices within the meaning of Article XIV, Section 7, of the Constitution, which prohibits double office holding. Double Office Holding; Member of Local School Committee AND Maintenance Supervisor 17 August 1951 While a school committeeman is ineligible to serve as a teacher or as a member of a county board of education, there seems to be no provision to the effect that a school committeeman may not serve in some other type of employment under appointment of the county board of education, for instance, as a maintenance supervisor and repairman on county school buildings. Schools; Bond Issue; Allocation of Funds; Changes Permissible 11 September 1951 A county board of education or the board of trustees of a city admin-istrative unit has authority to divert the proceeds of a bond issue to other 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 35 projects within the general purpose for which the bonds were authorized, provided the board finds in good faith that conditions have so changed since the bonds were authorized that the proceeds are no longer needed for the original purpose. Double Office Holding; School Committeeman and Town Clerk 9 October 1951 The office of town clerk and that of school committeeman are both public offices within the meaning of Article XIV, Section 7, of the Consti-tution, which prohibits double office holding, and one person may not hold both these offices at the same time. Schools; Acquisition of Sites; Limitation Upon Power to Condemn 19 December 1951 G. S. 115-85 gives to county boards of education the power to condemn land for school purposes. The 1951 amendment fixes the maximum amount of land that may be condemned for any one school at thirty acres. G. S. 115-85 sets out in detail the procedure for condemning school sites. G. S. 40-10 provides that the various bodies politic, corporations and natural persons granted the power of eminent domain in Chapter 40 of the General Statutes shall not be allowed to have condemned for their use, without the consent of the owner, a dwelling house, yard, kitchen, garden or burial ground unless condemnation of such property is expressly author-ized in the charter or by some provision of this code. G. S. 40-2(5) lists school committees, county boards of education and boards of school trustees as among the parties politic authorized to exercise the power of eminent domain but only "in order to obtain a pure and adequate water supply for such schools." Construing these various statutes together, it is thought that the pro-hibition contained in G. S. 40-10 does not apply to a case in which the purpose of the condemnation proceeding is to acquire additional adjacent lands for a school site since the entire condemnation proceeding for school sites is set out in G. S. 115-85. Double Office Holding; Member of District School Board; Member of County Board of Elections 9 January 1952 The office of school board member and that of county elections board member are both public offices within the meaning of the constitutional prohibition against double office holding. Schools; Earnings From Lunchrooms and Cafeterias Operated - Under the Provisions of G. S. 115-381 31 January 1952 G. S. 115-381 provides that all lunchrooms and cafeterias under the provisions of this section shall be operated on a nonprofit basis, and any 36 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. earnings therefrom over and above the cost of the operation shall be used for the purpose of reducing the cost of meals served therein, and for no other purpose. When considered in connection with the entire Federal lunchroom program, it is thought that such lunchrooms and cafeterias are being operated on a nonprofit basis when the children who are able to do so pay enough for their meals to produce sufficient revenue to provide free lunches to pupils who have been found by the Local School Board to be unable to pay for them, and that a particular operation cannot be said to have earned a profit until at the end of the school year it is ascertained that there are surplus earnings over and above the cost of operation. Municipal Corporations; Sale of Property; Schools; Contract of Indemnification 17 March 1952 G. S. 160-59 provides that the mayor and commissioners of a city or town shall have the power at all times to sell at public outcry, after thirty days' notice to the highest bidder, any property real or personal belonging to any such town. In the absence of a special statute providing other-wise, a municipality may not contract to sell its property at private sale. ASHEVILLE v. HERBERT, 190 N. C. 732. As to the Town of Madison, Section 71, Chapter 298, Private Laws of 1909 (charter) and Chapter 479, Session Laws of 1951, do provide for a private sale of property subject to the limitations therein contained. It would seem that a city school board has no authority to enter into a contract of indemnity. JENKINS v. HENDERSON, 214 N. C. 244. Schools; Vacancy on County Board of Education Existing for More Than Thirty Days Filled by State Board of Education 22 April 1952 The Supreme Court in the case of EDWARDS v. BOARD OF EDUCA-TION handed down on April 9th, 1952 held that two vacancies have existed for several months in the membership of the Board of Education of Yancey County. Since these vacancies have existed for more than thirty days, it is now the duty of the State Board of Education to fill such vacancies by appointment. G. S. 115-42. Schools; Supervision of Private Kindergartens by State Department of Public Instruction 20 May 1952 Under G. S. 115-65 the State Department of Public Instruction is given authority to supervise both public and private kindergartens and to re-quire that they be operated in accordance with standards to be provided by the State Board of Education. Our Supreme Court has not yet passed upon the constitutionality of this statute as it affects private kindergartens. However, the statute will not be declared unconstitutional unless it ap-pears beyond a reasonable doubt that its enactment was in violation of 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 37 constitutional limitations and all reasonable doubt will be resolved in favor of its validity. STATE v. BROCKWELL, 209 N. C. 209. Schools; Construction of School Buildings for Joint Use of Two Counties; Taking Title in Joint Names of Two Counties 21 May 1952 G. S. 115-88 provides that a county board of education may not expend public funds for the erection or repair of a school building unless the site is owned by said board. G. S. 115-98 provides for the creation of school districts out of portions of contiguous counties by joint action and agree-ment between the county boards involved and with the approval of the State Board of Education. There is no express authority for taking title to the site in the joint names of the boards involved. That authority may be granted by implication, giving to G. S. 115-98 a liberal construction. However, it is suggested that the project be delayed and the next General Assembly be requested to pass appropriate enabling legislation. Education; Teachers; Teachers Entitled to Increment FOR Services in the Armed Forces 21 May 1952 Teachers, principals and superintendents who have entered the armed forces or auxiliary forces of the United States since the cessation of World War II are still entitled to receive the experience increment pro-vided by G. S. 115-359.1, provided such persons are honorably discharged and return to their positions in the public schools of the State. Schools; Right of County Board of Education and Board of County Commissions to Operate a High School With Teachers Provided Entirely at County Expense 26 June 1952 Boards of Commissioners do not have authority to levy taxes to provide funds for the purpose of paying extra teachers in the public schools ex-cept to the extent and in the manner authorized by the School Machinery Act. Schools; Budget; Salaries of Vocational Teachers 27 June 1952 G. S. 115-363 provides that all county-wide current expense school funds shall be apportioned to county and city administrative units monthly and it shall be the duty of the county treasurer to remit such funds monthly as collected to each administrative unit located in said county on a per capita enrollment basis; this includes funds for vocational subjects. Under the foregoing statute and the decision in SCHOOL TRUSTEES v. BEN-NER, 221 N. C. 566, it is thought that in a county containing a county unit and two city units, the three units may not be considered together in making the budget for vocational teachers. Instead the levy must be made on a per capita enrollment basis. DIGEST OF OPINIONS TO COMMISSIONER OF AGRICULTURE Agriculture; Inspection Tax on Liming Material When Purchased out of the State 14 September 1950 The inspection tax on liming material must be paid only if material is sold, offered, or exposed for sale in this State. Agriculture; Commercial Feeding Stuff; Mineral Feed; Status OF Morton's Free Choice Trace Mineralized Salt 5 March 1951 Mineral feed includes mineralized salt and is a commei-cial feeding stuff and is required to be registered under the Commercial Feed Stuffs Law before the same may be sold or offered for sale in this State. Insecticide, Fungicide and Rodenticide Act of 1947; Application to Sales Made Through the United States Mails 29 May 1951 The North Carolina Insecticide, Fungicide and Rodenticide Act of 1947 does not apply to insecticides sold through the United States Mails. Expenditure of Money Collected by Department of Agriculture BY Manufacturers for Tobacco Curers Inspection 1 June 1951 Inspection fees collected by the Department of Agriculture on approved tobacco curing units may be expended only under the provisions of the Executive Budget Act. Agriculture; Insectide, Fungicide and Rodenticide Act of 1947; Registration; Brand or Grade of Economic Poison 25 October 1951 Under the Insecticide, Fungicide and Rodenticide Act of 1947, an economic poison, although it may have the same basic chemical structure, but which is prepared in different crystalline form for different uses and purposes and with different labels, each such varying or different form would constitute a different brand or grade, and the manufacturer would be required to register each brand or grade. 31] biennial report of the attorney general 39 Gasoline and Oil Inspection; Right of Board to Make Rules and Regulations Without Public Hearing; Public Notice Required; Use of Words "North Carolina—Grade" on Pumps 26 February 1952 The gasoline and oil inspection board is not required by statute to give public notices of hearings before adoption of rules and regulations which they may see fit to adopt, but it is recommended that they do so. Public notice of hearings and publication of notice is not satisfied by newspaper stories but formal notice should be given through the press. Filling stations are not required to use the word "North Carolina" and "grade" in posting on the pumps the classification of "premium" and "regular" gasoline. Agriculture; Stock Diseases; Health Certificate; Quarantine 11 March 1952 Under the statutes dealing with the quarantine of cattle coming into this State with insufficient or no health certificate at all, a quarantine would be justified where the possessor of the cattle states that the cattle have been transported from another State into this State, and the truck bears a license tag of a foreign State. Public Records; Records of Experiment Station and Extension Service of the Greater University of North Carolina 10 April 1952 Records of the State College Experiment Station and Extension Service of the University of North Carolina are public records within the mean-ing of Chapter 132 of the General Statutes and would not be subject to be copyrighted by any private group of individuals. Agriculture; Livestock ahd Poultry Remedy Law; Medicated Feeds; Registration 6 June 1952 Under the North Carolina Livestock and Poultry Remedy Law (Article 9 of Chapter 106 of the General Statutes), any livestock and poultry feed medicated and containing any substance for the prevention of disease or for the alleviation or cure of any active disease should be registered under such act. Medicated feeds containing only growth stimulants or vitamins and minerals for nutritional purposes should be registered under the Commercial Feed Act. DIGEST OF OPINIONS TO COMMISSIONER OF LABOR Labor Department; Inspection of Workshops Including Railroad Shops; Authority to Make 29 March 1951 A liberal construction of G. S. 95-4, authorizing the Commissioner of Labor to visit and inspect factories, mercantile establishments, mills, workshops, etc., would seem to give the Commissioner of Labor the au-thority to make safety inspections of railroad workshops and other places employing workers in the transportation industry. DIGEST OF OPINIONS TO COMMISSIONER OF INSURANCE Insurance Agents; Policies Required to be Signed by Resident Licensed Agents 7 August 1950 A performance bond executed by a nonresident contractor guaranteeing the performance of work done in North Carolina is required to be signed by a resident licensed agent of the State. A bond furnished by a sub-contractor of a nonresident contractor would also have to be countersigned by a resident licensed agent of this State. Housing Authority; Exceptions to Building Code Regulations 19 July 1950 A city may make exceptions to its own building code. However, it may not make exceptions to the State building code. The State through the North Carolina Building Code Council, with the approval of the Com-missioner of Insurance, may make changes in the North Carolina build-ing code. Insurance; Fraudulent Claims 1 September 1950 All criminal actions instituted under G. S. 15-214, relating to fraudulent claims for insurance, should be instituted in the county where such claims are filed. 31] biennial report of the attorney general 41 Group Life Insurance; Eligibility of State Employees' Association AS A Group Unit for Group Life Insurance Under Chapter 800 Session Laws of 1951 16 July 1951 Subsection (6) of G. S. 58-210, the same being Chapter 800 of the Session Laws of 1951, does not prohibit the State Employees' Association from being considered as a group for the purpose of issuing policies of group life insurance and in our opinion such association is a permissible group for this purpose. Insurance Law; Pools, Groups or Associations; Authority of the Commissioner to Limit Insurance Companies Writing Risks in Certain Occupancy Classes 27 July 1951 The Commissioner of Insurance has no authority to limit any insurance company, filing under the provisions of the above section, to the writing of risks in certain classes only, regardless of whether or not said writings are limited to sprinklered risks, if the companies writing the same have maintained standards and engineering services to his satisfaction. Group Life Insurance Policies; Employees of the Federal Government; Eligibility for Federal Employees to Purchase Group Life Insurance Where Entire Premium is Paid by Employees 11 October 1951 Employees of the Federal Government are ineligible to purchase group life insurance policies under G. S. 58-210(6) for the reason that they are not considered employees of a "political subdivision" of the State. Insurance Department; State Employees Association; Group Accident and Health Insurance 17 October 1951 The North Carolina State Employees Association cannot be a policy-holder as circumscribed and defined by the group health and accident in-surance law. Collection Agencies; Permits Required from Insurance Commissioner before Engaging in Such Business 6 December 1951 A person, firm or corporation which simply aids and advises its clients in the collection of its delinquent accounts, and which never actually col-lects such accounts or handles any funds paid by a debtor to his creditors, is not required to secure a permit from the Insurance Commissioner be-fore engaging in such business under G. S. 66-41. 42 biennial report of the attorney general [vol. Taxation; Insurance Companies; Premium Taxes; Deposits to Cover Costs of Insurance; Return of Unused Portion of Deposits; Deductibility of Portion of Deposit Returned 22 January 1952 Taxpayers operating under G. S. 58-131.4 insure only special types or classes of risks on a deposit basis. Instead of filing a schedule of premium charges with the Rating Bureau, taxpayer files with that Bureau a schedule of deposits required. The unused or unabsorbed balance of the initial premium deposit is returned to the policyholder at the expiration of the policy as a return of unabsorbed premium deposit. Under these circumstances, the taxpayer's liability under G. S. 105-228.5 should be computed only on the amount of the deposits used or not returned to the insured. Building Code Council; Authority to Make Changes in Building Code 19 February 1952 North Carolina Building Code Council has authority to adopt Building Code Regulations which are less stringent than the ones now existing established by the North Carolina Building Code. Workmen's Compensation; Co/erage of Volunteer Firemen 15 May 1952 Sanitary districts organized under Article 6 of Chapter 130 of the General Statutes are municipal corporations and are authorized to establish fire departments for the protection of property within these districts. Being municipal corporations, they come within the purview of Section 8 of Chapter 820 of the Session Laws of 1951, and the provisions of the Workmen's Compensation Act apply to them. Privately organized volunteer fire companies which are not under the supervision or control of municipalities, and where no part of the expense of equipment, payment of the firemen or other expenses are borne by such municipalities, are not municipal fire departments within the meaning of Chapter 820 of the Session Laws of 1951. Such municipalities are not liable in case of injuries to volunteer firemen incurred in the performance of their duties. DIGEST OF OPINIONS TO ADJUTANT GENERAL Personnel Act; Annual Leave; Computation of Length of Annual Leave; Amount of Compensation for Annual Lea^/e 13 July 1951 Under the Personnel Act, annual leave can be accumulated up to, and including, thirty days. An employee receives compensation while on an-nual leave upon exactly the same basis as if he had performed services for the same length of time. DIGEST OF OPINIONS TO STATE BOARD OF ALCOHOLIC CONTROL Intoxicating Beverages; Transportation into North Carolina to BE Stored and Sold by Ships' Chandler 29 November 1950 Article 3 of Chapter 18 of the General Statutes prohibits the sale of intoxicating- beverages, as therein defined, in this state except through A.B.C. stores, and G. S. 14-49.2 reads in part "The vnlful transportation of alcoholic beverages within, into, or through the State of North Caro-lina in quantities in excess of one gallon is prohibited except for delivery to federal reservations to vi^hich has been ceded exclusive jurisdiction by the State of North Carolina, or in transporting it through this state to another state, in accordance with the provisions of G. S. 18-49.1 . . . for delivery to federal reservations." State Board of Alcoholic Control; Power and Authority TO Fix Prices 7 September 1951 The sale of a carton lot of 8 pints of whiskey at a uniform price in the county ABC stores of the State would not violate the provisions of G. S. 18-39 (c) which authorizes the State Board of Alcoholic Control to require county ABC stores to maintain uniform prices of whiskey. State Board of Alcoholic Control; Powers to Make Rules and Regulations 18 September 1951 When a beer permit has been revoked, the board has the power to make a regulation to the effect that the person whose license has been revoked is ineligible to apply for a new license for at least six months. G. S. 18-78. When a husband or wife has had a permit revoked and the spouse of such person applies for a new license for the same location, the board has the power to conduct an investigation to see whether the application is made in good faith or whether such person is acting simply as the agent of the other spouse in order to evade the law; and if the board finds that the application is not made in good faith, it may refuse to issue the license. When an application for a license has been refused, the board has power to make any reasonable regulation as to the length of time that must elapse before such person may apply for a new license. G. S. 110-7 forbids any minor under the age of eighteen years to work in a place where alcoholic liquors are distilled, rectified, compounded, brewed, manufactured, bottled, sold or dispensed, with a proviso that this section shall not prohibit such minor from working in any establishment 44 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. where beer is sold and not consumed on the premises, and to which has been issued an "off premises" license. G. S. 18-13 provides for the issuance of a search warrant based upon proper affidavit; G. S. 18-116.5 gives ABC inspectors the same powers and authority as other peace officers. Under the foregoing power it would seem that an inspector has the authority to seize whiskey being openly displayed on tables and to arrest the offender. G. S. 18-51. G. S. 15-39 gives a peace officer the authority to arrest without warrant for a misdemeanor committed in his presence. It would seem that the director of the Malt Beverage Division is not a public officer as that term is generally used. Therefore, it is not necessory for him to take and subscribe to an oath of office. Section 506(a) of the Revenue Act (G. S. 18-69.1) seems to have been passed for two purposes: (1) to prevent a wholesaler or bottler from mak-ing a contract with a retailer requiring that retailer to purchase the products of the wholesaler or bottler to the exclusion of the products of other dealers in North Carolina, and (2) to prevent the manufacturer or bottler from acquiring an interest in the business of the retailer so as to exercise an undue influence upon the retailer in bringing about the ex-clusive use by the retailer of the products of the particular manufacturer or bottler. State Board of Alcoholic Control; Power to Revoke License; Permitting Gambling in Licensed Establishments; Violations BY Manufacturer of Section 506(a) of the Revenue Act 12 October 1951 It would seem that if a licensee permits gambling in his establishment he violates the provisions of G. S. 18-78, thus giving the board authority to revoke his license after a hearing. It would also seem that the officers, inspectors and investigators of the Malt Beverage Division have authority to seize such gambling equipment and swear warrants for the persons operating such places of business, but that the actual order for the confiscation of gambling equipment seized can be made only by the court trying the case. It would also seem that a manufacturer of equipment violates the pro-visions of Section 506(a) of the Revenue Act by selling such equipment to a local dealer and taking back for a balance of the purchase price a note payable in installments and secured by a conditional sales contract on the equipment; or by becoming a co-maker with the local dealer on the note to a bank or other lending agency for borrowed money when the money so borrowed is all paid to the manufacturer for the purchase price of the equipment. However, it is suggested that a test case be brought and taken to the Supreme Court on these points. Alcoholic Beverages; Advertising by Radio or Television 21 November 1951 Since G. S. 18-60 defines alcoholic beverages within the contemplation of the Alcoholic Beverage Control Act of 1937 as alcoholic beverages con- 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 45 taining more than 14% of alcohol by volume, it would seem that it is not unlawful to advertise the sale of legal beer in North Carolina by radio. The 1937 Act does not use the term "television", but the foregoing would seem to be applicable to advertising by television. It would seem that the awarding of prizes on radio and television pro-grams under the circumstances described in the attached memorandum, is not unlawful. However, under the authority given in G. S. 18-55 it would seem that the several County ABC Boards, by and with the consent and approval of the State Board, have the authority, within their discretion to prohibit such programs by regulation. . Wine and Beer; Sale of Wine in Pinehurst and Southern Pines 18 December 1951 Where a city or town votes in favor of the sale of wine and beer sub-sequent to the date on which the county has voted against such sales, the State Board of Alcoholic Control has authority to issue permits for the sale of such beverages in such cities or towns. Intoxicating Liquor; A. B.C. Stamps Forged or Stolen; Offenses 3 March 1952 There are no provisions in the A.B.C. laws dealing with the unauthorized use of State tax stamps for intoxicating liquor nor are there any laws specifically prohibiting the forging of such stamps or the larceny of same. It is not unlawful to possess A.B.C. liquor if the container shows the Federal tax stamp or the State stamp tax. There is no requirement that it shall show both. Beer and Wine; Authority of Inspectors 1 April 1952 Under G. S. 18-140 and considering what our court said in the cases of STATE V. HARDY, 209 N. C. 83 and STATE v. CARPENTER, 215 N. C. 635, it would seem that an inspector of the Malt Beverage Division has authority to inspect the living quarters when an operator lives in the back of a beer outlet and the li\'ing quarters are separated from that part of the building used as a beer outlet only by connecting doors. It would seem that such an inspector may perform his duties on Sun-day. It would also seem that an inspector of the Malt Beverage Division is required to have a search warrant in only those cases in which other law enforcement officers are required to have search warrants. It would seem also that a reasonable construction of G. S. 18-72 limits the place where "on premises" license may be used to the building in which the beer outlet is actually located and does not include a separate building owned by the operator but located on the same lot and com-pletely separated from the building in which the beer outlet is located. 46 biennial report op the attorney general [vol. Beer and Wine; Removing Wine from Original Bottle, Refiltering ™ THE Wine and Refilling the Bottle 28 May 1952 G. S. 106-121 (c) defines food as articles used for food or drink for man or other animals. This would include wine. G. S. 106-129 ^a) pro-vides that food shall be deemed to be adulterated if it has been produced, prepared, packed or held under insanitary conditions whereby it may have become contaminated with filth or whereby it may have been rendered diseased, unwholesome or injurious to health. If sealed bottles of wine are opened, and refiltered under insanitary conditions, the wine would seem to be adulterated within the meaning of the statute. In addition, the opening of the bottle necessarily means the removal of the tax stamp required by G. S. 18-81 (r) and would necessitate the purchase of another stamp and it would also seem that the opening of the bottles and refilling with wine might do an injustice to the original bottler. He could probably maintain an injunction proceeding to prevent such practice. DIGEST OF OPINIONS TO COMMISSIONER OF BANKS Banks; Safety Deposit Boxes; Failure of Customer to Pay Rent; Method of Collection 19 September 1950 Upon the failure of a bank customer to pay the rent on a safety deposit box, the most appropriate procedure would be for the bank to institute an action for the collection of the rent against the holder of the box and, upon obtaining judgment, have the contents of the box sold under execu-tion for the payment of the rent. Banks-Banking; Branch Bank; What Constitutes 1 June 1951 Setting up of a time payment department in a separate building would not constitute a branch bank or operating a teller's window. Banks and Banking; Branch Banks; Tellers Window^s; Capital Requirements 26 June 1951 The capital stock requirements as set out in G. S. 53-62 must be com-plied with if the parent bank is operating a "full-powered branch bank" even though the parent bank has received authority from the Banking Commission to operate a tellers window. 31] biennial report of the attorney general 47 Banks and Banking; Requirement that National Banks Show the Amount of State Deposits in Their Published Statements 28 June 1951 All banks, including National banks, who receive deposits of State funds are required to show in their published statements the amount of money on deposit in such banks to the credit of the State of North Carolina or of any official thereof. Banks and Banking; Supervision of Small Loan Agencies Exempted Under Chapter 282, Session Lav^^s of 1945 22 August 1951 The Commissioner of Banks has no authority to assume supervision over industrial loan agencies exempted from the provisions of Article 15, Chap-ter 53, of the General Statutes, and cannot authorize the registration of such exempted agencies. Banks; Loan Limitations; Public Housing Administration Short-term Notes 9 June 1952 Whether the limitation on loans made by G. S. 53-46 will apply to short-term loans by local units of the Public Housing Administration would depend upon whether or not such securities were interest-bearing obliga-tions of the United States as mentioned in said section. This question is open for further consideration after considering all available authorities. Banks; Industrial Banks; Industrial Small Loan Agencies; Fines Charged to Borrowers 18 June 1952 There is no authority in the statute authorizing an industrial bank or an industrial loan agency to charge a borrower a fine upon any install-ment loan contract. The charges which may be made in connection with such loans made by such agencies are confined to those prescribed by statute. DIGEST OF OPINIONS TO STATE COMMISSION FOR THE BLIND State Commission for the Blind ; Regulations ; Filing Regulations In Office of Clerk of Superior Court 23 August 1950 The North Carolina State Commission for the Blind is not required to file any regulations in the office of the Clerk of the Superior Court of any county in the State by virtue of G. S. 143-198.1 (Chapter 378, Session 48 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. Laws of 1949). I do not think that you are required to file your rules and regulations with the Secretary of State as required by Article 18 of Chapter 143 of the General Statutes. Aid TO THE Blind; Persons Entitled Thereto; Aid to Dependent Children; Aid to the Permanently and Totally Disabled 14 August 1951 Needy blind persons should receive aid under the provisions of law applicable to such persons and not through other categories of assistance administered under the supervision of the State Board of Public Welfare. This applies also to the fourth category of public assistance which is Aid to the Permanently and Totally Disabled. State Commission for the Blind; Chapter 319, Session Laws of 1951; Authority of Commission for the Blind to Set Up Professional Advisory Committee Containing Members of Medical and Optometric Refractionists 2 October 1951 The provisions of G.S. 111-14 relate to the Public Assistance Program of the State Commission for the Blind. The Commission is not authorized to pay fees to a medical expert or optometrist who is selected and designa-ted by an applicant for assistance, and which examination is made before the applicant has been adjudged eligible for assistance. The Commission is authorized to employ its own experts, both medical or optometrists, for the purpose of making its own investigations and examinations and to pay such experts. DIGEST OF OPINIONS TO BUDGET BUREAU Budget Bureau; Employment of Necessary Engineers; Allotments from Contingency and Emergency Fund ::::^ 23 August 1950 The Director of the Budget is authorized under the Executive Budget Act to employ engineers and such other special help as may be necessary to carry out the duties of his office, and the expense of such employinent is payable out of the Contingency and Emergency Fund. Public Contracts; Bid Security 21 November 1950 Bids on State contracts must be accompanied by a deposit in cash or a certified check in an amount equal to not less than two per cent (2%) 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 49 of the proposal. A higher percentage may be required by the State should it be deemed advisable. Highway Bonds; Sinking Funds; Right to Withdraw Therefrom 7 February 1951 Interest requirements on sinking fund bonds may not be withdrawn from the sinking funds as well as principal requirements until the amount in the sinking fund is sufficient to pay both the principal and all interest which will accrue on the bond up to the time of retirement. The Legislature could not validly change any of the provisions creating sinking funds because these provisions are contractual in character. Sinking funds of different issues of bonds may not be legally consoliated if the result is to withdraw from any particular sinking fund deposits any amount required by law to be deposited therein. Real Property Adjoining Landowner; Projecting Awning 0/er and Above Real Property of Adjoining Landowner 17 January 1952 The State cannot hang awnings on its buildings which project out and over the land of an adjoining landowner without such landowner's per-mission. Contract Dated June 8, 1951 Between North Carolina State Ports Authority and J. A. Jones Construction Company 25 February 1952 Since the contract in question contained an alternate providing for $21,000 additional compensation in case the contractor should be required to furnish, haul and place approximately 14,000 cubic yards of fill under warehouse from sources off project site, and since it is also specifically stipulated in the contract that the engineers may omit any items of work stated in the proposal provided that the total value of such omissions does no exceed 20% of the total contract amount of $609,700, it wouh' seem that the engineers have the right to eliminate the alternate; thus reducing the contract price by $21,000. Motor Vehicles; Operators' and Chauffeurs' License Fund; Accident Records Section 17 March 1952 The Operators' and Chauffeurs' License Fund may be used only for the administration of G. S. 20-7. It may be used to employ personnel whose duties have a reasonable relation to the examination of applicants for license, the issuance of licenses, and the determination of whether license holders should be re-examined. It may not be used for expenses incurred in the administration of other phases of the Driver's License Act or of the Highway Safety Program. DIGEST OF OPINIONS TO BOARD OF COSMETIC ART North Carolina State Board of Cosmetic Art; Authority to Employ Counsel; Expenditure of Public Funds 31 July 1951 The North Carolina State Board of Cosmetic Art has no authority to expend the public funds of its agency to pay counsel fees or expenses of litigation which it did not authorize and was not consulted about, and for which it made no application to the Attorney General or Governor for the employment of such counsel and the payment of such expenses. DIGEST OF OPINIONS TO STATE BOARD OF EDUCATION School Law; G. S. 115-341; Compensation to School Children Injured in or by School Bus—Minnie Jean Macey 21 June 1951 In order for compensation to be paid, under the provisions of G. S. 115- 341, to parents of children who are injured, the injury must occur while such child is riding on a school bus to and from school, or from the oper-ation of said bus on the school grounds or in transporting children to and from school. School Law; State Board of Education; Extension of Boundaries OF City Administrative Unit 26 June 1951 A petition for annexation of contiguous territory so as to include same in the boundaries of a City Administrative Unit under G. S. 115-100 should show that all of the taxpayers in the proposed territory to be annexed join in the petition. The word "contingent" in the petition should be changed to the word "contiguous." Education; Chapter 1163 of the Session Laws of 1951; Use of Signature Machine; Liability of Indemnity Bond for Unauthorized Use of Signature Machine 3 July 1951 Chapter 1163 of the Session Laws of 1951 authorizing the use of signa-ture machines by local school units makes the sureties on bonds liable for unauthorized use of the machine, and the statute is to be construed as a 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 51 part of the bond. Any extra expense involved in securing State funds dispensed by local units as to bond coverage because of the use of signa-ture machines should be paid by the local unit because that unit, by adopting the signature machine, causes this extra expense to arise. Education; State Board of Education; Right to Deduct Checks FOR Group Life Insurance 7 September 1951 There is no authority for the treasurer or fiscal officer of the county board of education or the various city administrative units to make deduc-tions from the salary checks of school mechanics for the purpose of pay-ing the deductions to the Treasurer of the Mechanics Association who, in turn, will use the funds to pay premiums for group accident, health and life insurance. Teacher Contract—Alamance County 21 September 1951 When a vacancy in a teaching position exists and when the principal of the school recommends to the county board of education that a teacher be elected for only the remainder of the school term and the teacher is elected upon the understanding that he is to serve as a substitute teacher for only the remainder of that school year, and when the Certificate of Notification states that the teacher is elected for only the remaining part of the school year, such teacher does not have a continuing contract in spite of the fact that the contract actually signed fails to indicate that the election is only for the remaining part of the current school year. Schools; Chapter 1059, Session Laws of 1951; Article 49, Chapter 115 of the General Statutes; 1951 Act Does Not Repeal Previous Statutes 29 November 1951 Article 49 of Chapter 115 of the General Statutes authorizes and directs the State Board of Education to set up in its budget a sum of money deemed sufficient to pay the claims authorized in the Article; authorizes and directs the State Board of Education to pay out of said fund to the parent, guardian, executor or administrator of any school child who may be injured and/or whose death results from injuries received while such child is riding on a school bus to and from the public schools of the State, or fi'om the operation of said bus on the school grounds, or in transporting children to and from public schools of the State, the medical, surgical, hospital and funeral expenses incurred on account of such injuries and/or death of such child in an amount not exceeding $600; provides that the right to compensation shall be forever barred unless a claim be filed within one year after the accident, and if death results, within one year after the death; authorizes and empowers the State Board of Education under rules and regulations to be promulgated by the Board to approve any claim 52 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. authorized by the Article, and when such claim is approved such action shall be final; and provides that such claims shall be paid regardless of whether or not the injury received by said school child shall have been due to the negligence of the driver of the school bus. Section 1, Chapter 1059, Session Laws of 1951, constitutes the Indus-trial Commission a court for the purpose of hearing and passing upon tort claims against the State Board of Education, the State Highway and Public Works Commission and all other departments, institutions and agencies of the State. The Industrial Commission is required to determine whether each individual claim arose as a result of a negligent act of a State employee while acting within the scope of his employment and with-out contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted, thus applying common law principles as to tort liability. It is thought that the two foregoing statutes are not in conflict and that the 1951 Act does not repeal the previous statutes. Schools; Chapter 1059, Session Laws of 1951; Article 49, Chapter 115 OF the General Statutes; 1951 Act Does Not Repeal Previous Statutes 22 January 1952 In a case to which G. S. 115-341 is applicable the State Board of Edu-cation is not authorized to pay more than $600 toward the medical, sur-gical, hospital and funeral expenses incurred on account of such injuries and/or death of a child. When a person elects to proceed under the pro-visions of G. S. 115-341, it would seem that he has waived his rights to compensation under Chapter 1059, Session Laws of 1951. Schools; Sale of Activity School Bus 4 February 1952 It is thought that G. S. 115-86 is applicable to the sale of an activity school bus owned by a city administrative unit and purchased through the Division of Purchase and Contract. It is also thought that G. S. 143-49 (e) is not applicable since the property does not belong to the State govern-ment or to any of its departments, institutions or agencies. Reasoning by analogy from G. S. 115-363 (c) it is thought that the proceeds of sale should be paid to the treasurer of the city school board to be held by him for the capital outlay fund of the city administrative unit. Workmen's Compensation; Retirement Benefits 11 February 1952 Funds received from the Teachers' and State Employees' Retirement System by an employee do not affect any Workmen's Compensation which may become due a teacher for temporary, total or permanent partial dis-ability. Retirement funds paid to a retired state employee are not pay-ments in lieu of compensation. 31] biennial report of the attorney general 53 Schools; State Board of Education; Power of Board to Adopt Regulations As to Participation of Local Schools in INTERSCHOLASTIC SpORTS PROGRAM 4 June 1952 Section 9, Article 9, of the State Constitution enumerates certain express powers of the State Board of Education, among them "generally to super-vise and administer the free public school system of the State, and make all needful rules and regulations in relation thereto." In 24 R.C.L. Section 23, page 575, we find: "The power to adopt rules and regulations is not limited to those concerning the conduct of pupils in school hours, but may within proper limits extend to their conduct in non-school hours as well." From the foregoing it would seem that the State Board of Education has the power to adopt reasonable rules and regulations as to the partici-pation of local schools in athletic contests. In the case of HOSPITAL v. JOINT COMMITTEE, 234 N. C. 673, our Supreme Court held an admin-istrative board cannot share its authority jointly with an advisory com-mittee. Therefore, it is thought that the State Board of Education in the making and administration of rules and regulations as to athletic contests cannot share responsibility vdth an advisory committee. DIGEST OF OPINIONS TO STATE BOARD OF ELECTIONS Elections; Printing Ballots for Offices for Which No Candidates Have Filed 20 September 1950 The Election Law on the subject is silent but I believe the best course to pursue would be to recommend to the various County Boards of Elec-tion that a blank ballot be provided for township offices vdth sufficient space for write-ins of the names of persons the electors wish to vote for as Constable and Justice of Peace. Distribution of Applications for Absentee Ballots 6 October 1950 The applications for absentee ballots are of no significance or value until they have been filled in and filed or mailed in as required by law and no accounting for unused blank applications for absentee ballots is required. If the Chairman of the County Board of Elections considers that the re-quest is not unreasonable and that there is a probable legal use for the blank applications, I think he would be justified in delivering such number of blank applications as would seem to be reasonable. 54 biennial report of the attorney general [vol. Special Election; Time When the Vote Must Be Canvassed 3 November 1950 The provisions of G. S. 163-95, requiring that the vote in a special elec-tion shall be canvassed not later than ten days after the election would be considered as directory rather than mandatory and would not make the canvass of the vote and declaration of the result at a later date invalid. If a special election was not being held at the same time as the General Election, the vote should be canvassed and the returns made within ten days, as provided by the statute, but I do not think that the failure to do so within that time limitation would invalidate the elecion in any way. Election Law; Re: Canvass of Votes After Certificate of Election Has Been Furnished, and Induction Into Office 27 November 1950 The only way in which the title to the office of any person holding same could be tried is by an action in the nature of quo warranto, as provided by G. S. 1-516. SAUNDERS v. CATLING, 81 N. C. 298, OWENS v. CHAPLIN, 228 N. C. 705. Elections; Primaries; Candidate Must Be Registered As Member of Political Party for Which He Files as Candidate; Party Affiliation Can Be Changed Only During Registration Period 4 October 1951 Change of party affiliation can be made only during registration period. A person cannot file as a candidate for office of a political party except as a candidate of the party with which he is affiliated as shown by the reg-istration books. Election Laws; Voting for Group Candidates 17 March 1952 Where a voter marks his ticket in the circle at the top of the ballot and also marks the ticket on the opposite side for one or more of a group of candidates, he would, in so doing, vote only for the individuals in the group which he has marked. In other words, if a person desires to split his ticket in voting for a group of candidates, he would only vote for those which he actually marked in the place opposite the name of the candidate of his choice. Primary Elections; Party Affiliation of Candidates; When Vacancies May Be Filled by Party Executive Committees 27 May 1952 No person shall be permitted to file as a candidate of any political party in the party primary when such person, at the time of filing his or her 31] BIENNIAL REPORT OF THE ATTORNEY GENERAL 55 notice of candidacy, is registered on the registration book as an affiliate of a different political party from that party in whose primaiy he or she is now attempting to file as a candidate. DIGEST OF OPINIONS OF EMPLOYMENT SECURITY COMMISSION Employment Security Act; Refund of Taxes Paid Voluntarily Through Error of Law or Fact 18 April 1951 Under the Employment Security Act, the taxpayer must resort to the remedies that the Legislature has established, and he must do so at the time and in the manner that the statute and regulations provide. Refund of unemployment security taxes may be made only under the procedure set out in the Act, and recourse may not be had to G. S. 105-407, relating to a refund of tax of the State. Employment Security Agency; Hearings Before Commission to Determine Liability or Status; G. S. 96-4(m,o,p,q) ; Method OF Taking Evidence to Be Used Before Commission; Deputy 13 February 1952 It is necessary for a proper and efficient administration of the Employ-ment Security Act to invariably have an attorney and a reporter rather than a field representative to perform the duty of eliciting evidence for transmission to the Commission for findings of fact and determination. This is the procedure which has consistently been followed in this State and is a requirement of the North Carolina Employment Security Act. DIGEST OF OPINIONS TO THE GREATER UNIVERSITY Escheats; Unclaimed Funds Held or Owning From FSA by Hospital Care Association and Hospital Savings Association 20 July 1950 Unclaimed funds held or owing from Fedei*al Security Administration by Hospital Care Association and Hospital Savings Association are subject to escheat under the provisions of G. S. 116-23. 56 biennial report op the attorney general [vol. Educational Institutions; Necessary Residence for Students Claiming Preferential Considerations in Admission to State Institutions; Alien Residents 23 October 1950 Residence is dwelling in a place for some continuance of time, and is not synonymous with domicile, but means a fixed and permanent abode or dwelling, as distinguished from a mere temporary locality of existence; and to entitle one to the character of a resident, there must be a settled, fixed abode, and an intention to remain permanently, or at least for some time, for business or other purpose. Residence indicates permanency of occupation as distinct from lodging or boarding or temporary occupation. Residence indicates the place where man has his fixed and permanent abode and to which, whenever he is absent, he has the intention of returning. Residence means the place where one resides; an abode, a dwelling or habitation. Residence is made up of fact and intention. There must be the fact of abode and the intention of remaining. A place of residence in the ccmmon-law acceptation of the term means a fixed and permanent abode, a dwelling place for the time being, contradistinguished from a mere temporary local residence. State Taxation; Military Personnel Stationed in North Carolina 20 March 1951 The non-payment of taxes where taxes would otherwise be due to be paid by a resident is strongly indicative of a lack of intent to become a resident of the State of North Carolina, such non-payment because of exemptions referred to above, which apply to our residents as well as non-residents, and because of the non-taxability of personal property located on military posts, exclusive jurisdiction of which has been ceded to the United States, cannot be regarded as conclusive, as a bona fide resident of this State is not deprived of his residence for non-payment of taxes. He merely thereby becomes a tax delinquent. Bills and Notes; Lost Instruments; Holders in Due Course 5 June 1951 The holder in due course of a negotiable instrument, which had been lost by the payee who had endorsed it in blank, may recover from the drawer the face value of the check. Greater University of North Carolina; Resident and Nonresident Tuition Fees 8 August 1951 In order to receive the benefits of resident tuition fees, a person must be a bona fide citizen of this State, and the fact that a brother of a non-resident qualified as a guardian would not entitle him to the benefits of resident tuition fees. 31] biennial report of the attorney general 57 Sales Tax; University of North Carolina; Carolina Inn; Sales to the Inn 6 December 1951 By virtue of the exemptions contained in Subsection (d) and (q) of G. S. 105-169, the Carolina Inn, which is owned and operated by the Uni-versity of North Carolina, is exempt from the payment of sales taxes on purchases made by the Inn. License Tax; Three Per Cent Admissions Tax; Theatrical Performances; Exemptions; Carolina Playmakers; Section 108 17 April 1952 A college play is exempt from the State license tax when it is produced by students or faculty or local cit |
OCLC Number-Original | 5792362 |