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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