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00033944796
FOR USE ONLY IN
THE NORTH CAROLINA COLLECTION
BIENNIAL REPORT
OF THE
ATTORNEY GENERAL
OF THE
STATE OF NORTH CAROLINA
VOLUME 28
1944-1946
Harry McMullan
ATTORNEY GENERAL
George B. Patton
Hughes J. Rhodes
W. J. Adams, Jr.
Ralph Moody
Frank P. Spruill, Jr.
James E. Tucker
assistant attorneys general
Mr, Patton resigned and was succeeded by Mr. Moody.
Mr. Adams resigned and was succeeded by Mr. Spruill.
LIST OF ATTORNEYS GENERAL SINCE THE ADOPTION
OF CONSTITUTION IN 1776
Avery, Waightsill
Iredell, James
Moore, Alfred
Haywood, J. John
Baker, Blake
Seawell, Henry
Fitts, Oliver
Miller, William
Burton, Hutchins G.
Drew, William
Taylor, James F.
Jones, Robert H.
Saunders, Romulus M.
Daniel, John R. J.
McQueen, Hugh
Whitaker, Spier
Stanly, Edward
Moore, Bartholomew F.
Eaton, William
Ransom, Matt W.
Batchelor, Joseph B.
Bailey, William H.
Jenkins, William A.
Rogers, Sion H.
Coleman, William M.
Olds, Lewis P.
Shipp, William M.
Hargrove, Tazewell L.
Kenan, Thomas S.
Davidson, Theodore F.
Osborne, Frank I.
Walser, Zeb V.
Douglas, Robert D.
Gilmer, Robert D.
Bickett, T. W.
Manning, James S.
Brummitt, Dennis G.
Seawell, A. A. F.
McMullan, Haiiy
Terin of Office
1777-1779
1779-1782
1782-1790
L791-1794
1794-1803
1803-1808
L808-1810
1810-1810
1810-1816
1816-1825
1825-1828
1828-1828
1828-1834
1834-1840
1840-1842
1842-1846
1846-1848
1848-1851
1851-1852
1852-1855
1855-1856
1856-1856
1856-1862
1862-1868
1868-1869
1869-1870
1870-1872
1872-1876
1876-1884
1884-1892
1892-1896
1896-1900
1900-1901
1901-1908
1909-1916
1917-1925
1925-1935
1935-1938
1938-
LETTER OF TRANSMITTAL
1 December, 1946
To His Excellency
R. GRE6G Cherry, Governor
Raleigh, North Carolina
Dear Sir:
In compliance with statutes relating thereto, I herewith transmit the
report of the Department of Justice for the biennium 1944-1946.
Respectfully yours,
Harry McMullan,
Attorney General.
t
f
6 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 28]
University of North Carolina v. Geo. E. Phillips, et al,
Wesley J. Collier v. Gill, Commissioner of Revenue.
P. P. Johnston v. Gill, Commissioner of Revenue.
State ex rel. Gill, Commissioner of Revenue v. B. P. Saffo, t/a
Saffo's Confectionery, et al.
Southern Railway Co. v. Gill, Commissioner of Revenue.
Godley Brothers v. Gill, Commissioner of Revenue.
State V. Wilbur Smith.
Pending Before Industrial Commission
Riggsbee v. University of North Carolina.
Robert Farley v. Division of Forestry and Parks, Dept. Con-servation
and Development.
Disposed of Before Industrial Commission
L. 0. Hill V. Forsyth County Board of Education.
Jones, Admr. v. University of North Carolina.
Etta Estes v. Board of Buildings and Grounds.
Norman Burgess v. Dept. of Conservation and Development.
Boston Leak v. North Carolina State College.
Disposed of in North Carolina Supreme Court
State ex rel. Utilities Comm. v. Atlantic Greyhound Corporation,
224 N. C. 672
Johnson v. Gill, Commissioner of Revenue, 224 N. C. 638
Gardner v. Board of Trustees, Local Gov. Employees Retirement
System, 226 N. C. 465.
Ingle V. State Board of Elections, et al., 226 N. C. 454.
Disposed of in United States Supreme Court
Williams and Hendrix v. State of North Carolina.
Utilities Commission v. Interstate Commerce Commission.
United States v. Southeastern Underwriters Association.
Inman and Stark v. State of North Carolina.
Harry Weinstein v. State of North Carolina.
Disposed of in United States District Court
Godley Brothers v. Cherry, Governor, et al.
Pending in District Court of Appeals
Jeannette A. Noel v. Edson B. Olds, Jr., et al (Ackland Will Case)
Pending Before Interstate Commerce Commission
State of North Carolina and Utilities Commission v. Aberdeen
& Rockfish R. R. Co.
EXHIBIT II
List of Criminal Cases Argued by the Attorney General and
His Associates Before the North Carolina Supreme
Court : Fall Term, 1944 ; Spring Term, 1945 ; Fall
Term, 1945; Spring Term, 1946.
FALL TERM, 1944
State V. Allen, from Wilkes; nonsupport; defendant appealed;
venire de novo (new trial) ; 224 N. C. 530.
State V. Beckwith, from Wake; A.D.W.L Kill; etc.; defendant
appealed; no error (per cur.) ; 224 N. C. 859.
State V. Big"gs, et al., from Guilford; murder first degree; de-fendants
appealed; no error; 224 N. C. 722.
State V. Cody, from Madison ; reckless driving ; defendant appeal-ed;
error and remanded; 224 N. C. 470.
State V. DeBerry, from Forsyth; assault on female; defendant
appealed; reversed; 224 N. C. 834.
State V. DeGraffenreid, from Lee ; murder second degree ; de-fendant
appealed; no error; 224 N. C. 517.
State V. Dunheen, from Guilford ; murder first degree ; defendant
appealed; no error; 224 N. C. 738.
State V. Edwards (Paul), from Johnston; attempted incest
—
carnal knowledge; defendant appealed; no error; 224 N. C. 527
State V. Edwards (W. L.), from Pitt; manslaughter; defendant
appealed; reversed; 224 N. C. 577.
State V. Emery, et al., from Polk; violating liquor laws; defen-dants
appealed; venire de novo; 224 N. C. 581.
State v. (Godwin, et al., from Cumberland ; A.D.W.L Kill—con-spiracy;
defendants appealed; new trial; 224 N. C. 846.
State v. Harrill, from Rutherford ; prostitution ; defendant ap-pealed;
no error; 224 N. C. 477.
State V. Hayden, from Guilford ; nonsupport ; defendant appeal-ed
; new trial ; 224 N. C. 779.
State V. Hill, from Guilford; perjury; defendant appealed; no
error; 224 N. C. 782.
State V. Inman, et al., from Lee ; rape—highway robbery ; defen-dants
appealed; appeal dismissed; petitions denied; 224 N.
C. 531.
State V. Kirkman, from Guilford; violating liquor laws; defen-dant
appealed; reversed; 224 N. C. 778.
State V. Lewis, from Robeson ; assault on female ; defendant ap-pealed;
no error; 224 N. C. 774.
State V. McLean, from Scotland; burglary first degree; defen-dant
appealed; new trial; 224 N. C. 704.
State V. McMahan, from Yancey; abandonment-nonsupport; de-fendant
appealed; no error; 224 N. C. 476.
8 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
State V. Mull, et al., from Burke; robbery with firearms; defen-dants
appealed; no error; 224 N. C. 574.
State V. Ogle, from Madison; reckless driving, etc.; defendant
appealed; reversed; 224 N. C. 468.
State V. Oxendine, from Robeson; A.D.W.I. Kill, etc.; defendant
appealed; no error; 244 N. C. 825.
State V. Parker, et al., from Johnston ; attempt to receive stolen
property, etc. ; defendants appealed ; no error ; 224 N. C. 524.
State V. Patterson, from Cherokee ; manslaughter ; defendant ap-pealed;
reversed; 224 N. C. 471.
State V. Pennell, from Caldwell; manslaughter; defendant ap-pealed;
new trial; 224 N. C. 622.
State V. Rowell, from Union ; murder first degree ; defendant ap-pealed;
new trial; 224 N. C. 768.
State V. Shook, from Cumberland ; A.D.W.I.Kill, etc. ; defendant
appealed; no error; 224 N. C. 728.
State V. Stewart, from Harnett; operating motor vehicle after
license revoked; defendant appealed; no error; 224 N. C. 528.
State V. Stone, from Robeson ; manslaughter ; defendant appeal-ed;
new trial; 224 N. C. 848.
State V. Thompson, et al., from Mecklenburg; murder first de-gree;
defendants appealed; no error; 224 N. C. 661.
State V. Todd, from Cumberland; conviction of murder second
degree and judgment thereon set aside by superior court judge
for newly discovered evidence; State appealed; appeal dis-missed;
certiorari denied; 224 N. C. 776.
State V. Wade, from Scotland; rape; defendant appealed; no
error; 224 N. C. 760.
State V. Watts, from Columbus ; violating liquor laws ; defendant
appealed; reversed; 224 N. C. 771.
State V. Weinstein, from Wake ; larceny and receiving ; defendant
appealed; no error; 224 N. C. 645.
Docketed and Dismissed on Motion
State v. Alexander, from Durham.
State V. Taylor, from Wake.
State V. Buchanan, from Mecklenburg.
State V. Brooks, from Mecklenburg.
State V. Jones, from Halifax.
SPRING TERM, 1945
State V. Brady, from Randolph; carnal knowledge; defendant
appealed; no error (per cur.) ; 225 N. C.
State V. Britt, from Robeson; manslaughter; defendant appeal-ed
; no error ; 225 N. C. 364.
State V. Brown, from Martin ; violating statute regulating seat-ing
arrangement in buses; defendant appealed; new trial;
225 N. C. 22.
28] BIENNIAL REPORT OF ATTORNEY GENERAL 9
State V. Clark, from Vance ; manslaughter ; defendant appealed
new trial; 225 N. C. 52.
State V. Cody, from Buncombe ; assault with deadly weapon ; de-fendant
appealed; no error; 225 N. C. 38.
State V. Crandall, from Beaufort; A.D.W., etc.; defendant ap-pealed;
affirmed; 225 N. C. 148.
State V. Davenport, from Tyrrell ; fornication and adultery ; de-fendant
appealed; no error; 225 N. C. 13.
State V. Davis, from Rowan ; manslaughter ; defendant appealed
;
no error; 225 N. C. 117.
State V. French, from Montgomery; murder first degree; defen-dant
appealed; no error; 225 N. C. 276.
State V. 1* riddle, et al., from Guilford; breaking and entering-larceny
and receiving; defendants appealed; no error; 225
N. C. 240.
State v. Graham, from Bladen ; violating liquor laws ; defendant
appealed; affirmed; 225 N. C. 217.
State v. Harrison, from Guilford; assault with deadly weapon;
defendant appealed; new trial; 225 N. C. 234.
State V. Heglar, et al, from Stanly; violating lottery laws; defen-dants
appealed; reversed; 225 N. C. 220.
State v. Hill, from Wayne; A.D.W.I.Kill; defendant appealed;
no error; 225 N. C. 74.
State v. Isaac, from Catawba; murder first degree; defendant
appealed; new trial; 225 N. C. 310.
State v. King (Cora), from Richmond; larceny; defendant ap-pealed;
no error; 225 N. C. 236.
State v. King (Orlie), from Randolph; assault with intent to
commit serious injury; defendant appealed; no error (per
cur.) ; 225 N. C.
State v. Lord, from Cabarrus ; murder first degree ; defendant ap-pealed;
no error; 225 N. C. 354.
State v. Manning, from Martin ; aiding, etc. abortion ; defendant
appealed; no error (per cur.) ; 225 N. C. 41.
State v. Matheson, from Alexander ; murder first degree ; defen-dant
appealed; no error; 225 N. C. 109.
State V. Miller, from Anson; contributing to delinquency; de-fendant
appealed ; appeal dismissed ; 225 N. C. 213.
State V. Mitchell, from Buncombe ; practicing palmistry ; appeal
by State; special verdict; appeal dismissed (per cur.) ; 225
N. C. 42.
State V. Murdock, from Iredell ; A.D.W.I.Kill, etc. ; defendant ap-pealed;
no error; 225 N. C. 224.
State V. Murphy, et al., from Lenoir; assault-robbery; defen-dants
appealed; error and remanded; 225 N. C. 115.
State V. McDaniel, from Guilford ; rape ; defendant appealed ; no
error (per cur.) ; 225 N. C.
State V. Parsons, from Caldwell; carnal knowledge; defendant
appealed; no error (per cur.) ; 225 N. C.
10 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
State V. Perry, from Franklin; A.D.W.I.Kill; defendant appeal-ed;
error and remanded; 225 N. C. 174.
State V. Scoggins, et al., from Lee; manslaughter; defendants
appealed; no error; 225 N. C. 71.
State V. Smith, from Johnston ; arson ; defendant appealed ; no
error; 225 N. C. 78.
State V. Spruill, from Wayne; A.D.W.I.Kill; defendant appealed;
new trial; 225 N. C. 356.
State V. Sutton, from New Hanover; A.W.I.Rape; defendant
appealed; no error; 225 N. C. 332.
State V. White, from Caldwell ; nonsupport ; defendant appealed
reversed;225N. C. 351.
State V. Williams, from Mecklenburg ; manslaughter ; defen-dant
appealed; no error; 225 N. C. 182.
Docketed and Dismissed on Motion
State V. Calhoun, from Rockingham.
State V. Walsh, from Caldwell.
FALL TERM, 1945
State V. Barfield, from Scotland; A.D.W.LKill; defendant ap-pealed;
no error (per cur.) ; 225 N. C.
State V. Bennett, from Guilford; murder second degree; defen-dant
appealed; no error; 226 N. C. 82.
State V. Brooks, from New Hanover ; rape-first degree burglary
;
defendant appealed; no error; 225 N. C. 662.
State V. Cannaday, from Harnett ; violating liquor laws ; defen-dant
appealed; no error (per cur.) ; 225 N. C.
State v. Cox, from Robeson; violating liquor law^s; defendant
appealed; no error (per cur.) ; 225 N. C.
State V. Curling, from Washington; A.W.LRape; defendant ap-pealed;
no error ( per cur.) ; 225 N. C.
State V. Dover, from Cleveland ; receiving stolen goods, etc. ; de-defendant
appealed; affirmed (per cur.) ; 225 N. C.
State V. Gordon, from Davidson; fornication and adultery; de-fendant
appealed; reversed; 225 N. C. 757.
State V. Hightower, from Wilkes; murder first degree; defen-dant
appealed; no error; 226 N. C. 62.
State V. Home, from Gaston ; murder second degree ; defendant
appealed; no error; 225 N. C. 603.
State V. Jackson, from Pender ; assault on female ; defendant ap-pealed;
error and remanded; 226 N. C. 66.
State V. Marsh, from Columbus; trespass-assault; defendant
appealed; affirmed; 225 N. C. 648.
State V. Mays, from Lee ; murder first degree ; defendant ap-pealed;
no error; 225 N. C. 486.
State V. Miller, from Wilkes; assault with deadly weapon; de-fendant
appealed; no error; 225 N. C. 478.
28] BIENNIAL REPORT OF THE ATTORNEY GENERAL 11
State V. Morgan, from Craven; assault on female; defendant ap-pealed;
no error; 225 N. C. 549.
State V. McNeill, from Harnett; violating liquor lav^^s; defendant
appealed; reversed; 225 N. C. 560.
State V. Peterson, from Sampson ; murder second degree ; de-fendant
appealed; new trial; 225 N. C. 540.
State V. Petry, from Wake ; A. W. I. Rape ; defendant appealed
;
no error; 226 N. C. 78.
State V. Robinson, from Mecklenburg ; manslaughter ; defendant
appealed; new trial; 226 N. C. 95.
State V. Shoup, from Guilford ; receiving stolen goods ; etc. ; de-fendant
appealed; no error; 226 N. C. 69.
State V. Spencer, from Gaston; abandonment-nonsupport ; de-fendant
appealed; no error; 225 N. C. 608.
State v. Stevenson, from Columbus ; violating liquor laws ; de-fendant
appealed; no error (per cur.) ; 225 N. C.
State V. Stone, from Robeson ; murder second degree ; defendant
appealed; no error; 226 N. C. 97.
State V. Stutts, from Moore ; violating liquor laws ; defendant ap-pealed;
no error (per cur.) ; 225 N. C. 647.
State V. Talton, from Johnston; manslaughter; defendant ap-pealed;
no error (per cur.) ; 225 N. C.
State V. Vanderlip, from Mecklenburg; abandonment-nonsupport;
defendant appealed; reversed (per cur.) ; 225 N. C. 610.
State V. Williams, from Lee; rape; defendant appealed; no er-ror;
225 N. C. 475.
State V. Wise, from Guilford; murder first degree; defendant
appealed; no error; 225 N. C. 746.
Docketed and Dismissed on Motion
State V. Meadows, from Pitt.
State V. Burnett, from New Hanover.
State V. Jestes, from Avery.
SPRING TERM, 1946
State v. Baldwin, from Wake ; possessing burglary tools ; defen-dant
appealed; no error; 226 N. C. 295.
State V. Bullins, from Rockingham ; carnal knowledge, etc. ; de-fendant
appealed; new trial as to violating G. S. 110-39; af-firmed
as to violating G. S. 14-26; 226 N. C. 142.
State V. Carroll, from Caldwell; operating motor vehicle while
intoxicated ; defendant appealed ; new trial ; 226 N. C. 237.
State V. Clough, from Davidson ; worthless check ; defendant ap-pealed;
appeal dismissed (per cur.) ; 226 N. C. 384.
State V. Deaton, from Gaston ; murder first degree ; defendant ap-pealed;
no error; 226 N. C. 348.
State V. Farrar, from Orange; violating liquor laws; defendant
appealed; appeal dismissed (per cur.) ; 226 N. C. 478.
12 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
State V. Gardner, from Buncombe ; manslaughter ; defendant ap-pealed;
new trial; 226 N. C. 310.
State V. Gibson, et al., from Caswell ; attempted burglary-forcible
trespass ; defendant appealed ; error and reversed as to burg-lary;
no error as to forcible trespass; 226 N. C. 194.
State V. Hart, from Halifax ; murder first degree ; defendant ap-pealed;
no error; 226 N. C. 200.
State V. Herring, from Wayne ; rape ; defendant appealed ; no er-ror;
226 N. C. 213.
State V. Johnson, et al., from Wake ; rape ; defendants appealed
;
judgment arrested; 226 N. C. 266.
State V. Jordan, from Dare ; burglary second degree ; defendant
appealed; new trial; 226 N. C. 155.
State V. King, from Lenoir ; murder first degree ; defendant ap-pealed;
no error; 226 N. C. 241.
State V. Lewis, e'^ al.- from Caldwell; A. W. L Rape; defendants
appealed; error and remanded; 226 N. C. 249.
State V. Locklear, from Robeson; burglary second degree; de-fendant
appealed ; new trial ; 226 N. C. 410.
State V. Malpass, from Columbus ; mayhem ; defendant appealed
error and remanded; 226 N. C. 403.
State V. Morgan, from Guilford ; nonsupport ; defendant appealed
;
judgment arrested; 226 N. C. 414.
State V. Mounce, from Rockingham ; receiving stolen goods, etc.
defendant appealed; affirmed; 226 N. C. 159.
State V. McNair, from Forsyth ; larceny ; defendant appealed ; no
error; 226 N. C. 462.
State V. Peterson, from Sampson ; violating liquor laws ; defen-dant
appealed; reversed; 226 N. C. 255.
State v. Presnell, from Buncombe ; sale of short-weight butter
;
defendant appealed; appeal dismissed; 226 N. C. 160.
State V. Setzer, from Caldwell ; bigamous cohabitation ; defendant
appealed; reversed; 226 N. C. 216.
State V. Stewart, from Wake ; murder first degree; defendant ap-pealed;
no error; 226 N. C. 299.
State V. Taylor, from Wayne ; murder second degree ; defendant
appealed; no error; 226 N. C. 286.
State V. Thomas, from Hoke ; receiving stolen goods, etc. ; defen-dant
appealed; affirmed (per cur.) ; 226 N. C. 384.
State V. Vaden, et al., from Rockingham; manslaughter; defen-dants
appealed; no error; 226 N. C. 138.
State V. Walker, from Harnett ; rape ; defendant anpealed ; no er-ror;
226 N. C. 458.
State V. Witherington, from Wayne ; kidnapping ; defendant ap-pealed;
new trial; 226 N. C. 211.
Docketed and Dismissed on Motion
State V. Parsons, from Caldwell.
28] BIENNIAL REPORT OF ATTORNEY GENERAL 13
SUMMARY
Affirmed on Defendant's appeal 76
New trial or reversed on Defendant's appeal 34
Error and remanded 6
Judgment arrested 2
Appeal dismissed 17
Appeal dismissed on State's appeal 1
136
Fees Transmitted by Attorney General to State Treasurer since
February Term, 1944, through February Term, 1946
State V. Herndon $ 10.00
State V. Dry 10,00
State V. Parker 10.00
State V. Edwards 10.00
State V. Beckwith 10.00
State V. Stewart 10.00
State V. Harrell 10.00
State V. Shook 10.00
State V. Oxendine 10.00
State V. Mull 10.00
State V. Lewis 10.00
State V. Hill 10.00
State V. Manning 10.00
State V. McMahan 10.00
State V. Scoggin, et al 20.00
State V. Parsons . 10.00
State V. King 10.00
State V. Davenport 10.00
State V. Davis 10.00
State V. Hill 10.00
State V. Miller 10.00
State V. King 10.00
State V. Graham 10.00
State V. Brady . 10.00
State V. Sutton 10.00
State V. Friddle, et al 20.00
State V. Cody 10.00
State V. Murdock 10.00
State V. Curling 10.00
State V. Williams 10.00
State V. Talton 10.00
State V. Cannaday 10.00
State V. Dover 10.00
State V. Home 10.00
State v. Spencer 10.00
14 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 28]
State V. Miller 10.00
State V. Brooks 10.00
State V. Cox 10.00
State V. Barfield 10.00
State V. Marsh 10.00
State V. Stutts 10.00
State V. Shoup 10.00
State V. Bennett 10.00
State V. Petry 10.00
State V. Stone 10.00
State V. Stevenson . . 10.00
State V. Sawyer . 10.00
State V. Vaden, et al 20.00
State V. Bullins 10.00
State V. Mounce 10.00
State V. Presnell 10.00
State V. Gibson, et al 20.00
State V. Parsons 10.00
State V. Baldwin 10.00
State V. Stewart 10.00
State V. Taylor 10.00
State V. Thomas 10.00
State V. McNair 10.00
State V. Farrar 10.00
$630.00
SUMMARY OF ACTIVITIES
Staff Personnel
During the biennium there were several important changes in the per-sonnel
of this office.
Mr. George B. Patton, Assistant Attorney General, resigned to return to
private practice on November 15, 1944. He was later made General Counsel
for the State Highway and Public Works Commission.
Mr. Ralph Moody, of Murphy, was appointed Assistant Attorney General
to succeed Mr. Patton and is now serving in that capacity.
Mr. William J. Adams, Jr., Assistant Attorney General, who had been
assigned to the Revenue Department, resigned August 1, 1945, to enter
private practice in Greensboro. The vacancy caused by his resignation
was filled by the appointment of Mr. Frank P. Spruill, Jr., of Rocky Mount.
Mr. Spruill has served during the balance of the biennium in that capacity.
Mr. H. J. Rhodes, as Assistant Attorney General, served throughout the
biennium.
Mr. James E. Tucker has continued as a member of the legal staff since
1939.
Mr. Philip E. Lucas, of Burgaw, was appointed as a member of the re-search
staff of the office on April 8, 1946, and was serving in that capacity
at the end of the biennium.
The secretarial staff of the office during the biennium was as follows:
Mrs. Margaret York Wilson, Miss Elizabeth Flournoy, Miss Ruby Thomas,
Miss Elizabeth Kelly, Miss Lillian Turner, and Mrs. Grace H. Baker.
Due to inability to find an available and properly qualified attorney to fill
the other position as a research member of the staff, this position remained
vacant. There were very few graduates of the law schools during the war
period and those who did graduate were promptly taken up by opportunities
offered in private practice in this State and elsewhere.
Division of Legislative Drafting and Codification of Statutes
The General Assembly of 1943 adopted Resolution No. 23, creating a
commission on statutory revision, consisting of twelve members, being the
chairmen and the subcommittees of the Committees on Recodification in the
Senate and House of Representatives. The duty of this commission was
to serve in an advisory capacity and cooperate with the Attorney General and
the Division of Legislative Drafting and Codification of Statutes in a study
of the recommendations of the division with respect to desirable clarifying
statements and the preparation of such proposed statutes for submission to
the General Assembly of 1945. This commission was composed of the
following persons:
Senators Irving E. Carlyle, Brandon P. Hodges, D. E. Hudgins, Wade B.
Matheny, K. A. Pittman, and Representatives Oscar G. Barker, Frank W.
Hancock, Jr., A. I. Ferree, Bryan Grimes, W. L Halstead, Robert Moseley
and Kerr Craige Ramsay.
16 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
This commission rendered a valuable service between the 1943 and 1945
sessions of the General Assembly, holding many meetings, and considered
in detail the proposed legislative amendments clarifying various obscure
sections of the law and correcting conflicting provisions, obvious errors,
etc. A bill was presented by the commission to the Legislature, which was
enacted as Chapter 635 of the Session Laws of 1945. Although this com-mission
was diligent in attending to the work assigned to it, it was unable
to complete the undertaking within the time available for this purpose.
For the continuation and extension of this work, the General Assembly of
1945 enacted Chapter 157, creating the General Statutes Commission, and
assigned to it duties as follows:
(a) To advise and cooperate with the Division of Legislative Drafting
and Codification of Statutes of the Department of Justice in the work of
continuous statutory research and correction, for which the division is
made responsible by G.S. 114-9 (c).
(b) To advise and cooperate with the Division of Legislative Drafting and
Codification of Statutes in the preparation and issuance by the division of
supplements to the General Statutes pursuant to G.S. 114-9 (b).
(c) To make a continuing study of all matters involved in the prepara-tion
and publication of modern codes of law.
Messrs. Robert F. Moseley, I. M. Bailey, Luther E. Barnhart, M. S. Breck-enridge,
J. Wilbur Bunn, Fred B. Helms, Malcomb McDermott, Henry A.
McKinnon and Basil L. Whitener were named as members of the com-mission.
Mr. Robert F. Moseley was elected chairman.
Mr. Lawrence E. Watt, of Reidsville, was selected as a member of the
staff and assigned to duty as Executive Secretary of this commission. Mr.
Watt continued in this position until he resigned to run for Congress from
the Fifth Congressional District. The place remained open until Mr. Harry
W. McGalliard, formerly a member of the staff of this office in the Divi-sion
of Legislative Drafting and Codification of Statutes, was appointed to
carry on this work and continues to serve in that capacity.
This commission will submit, as provided by law, its report to the Gen-eral
Assembly covering its activities during the biennium.
Under the duties assigned to it by Chapter 382 of the Session Laws of
1943, the Division of Legislative Drafting and Codification of Statutes has
continued to make a systematic study of the General Statutes of the State,
for the purpose of ascertaining what ambiguities, conflicts, duplications and
other imperfections in form and expression should be corrected and will
submit to the General Assembly its recommendations for such changes as
will be suggested. The director of the division, Mr. Clifton W. Beckwith,
acts as the Secretary for the General Statutes Commission.
The General Assembly of 1945 enacted Chapter 863, directing the Divi-sion
of Legislative Drafting and Codification of Statutes of the Department
of Justice, under the direction and supervision of the Attorney General, to
cause to be published under its supervision cumulative pocket, supplements
to the four volumes of the General Statutes, which will contain an accurate
transcription of all the laws of a general and permanent nature enacted by
the General Assembly, and complete and accurate annotations to the sta-
26] BIENNIAL REPORT OF ATTORNEY GENERAL 17
tutes, with a cumulative index. This Act made the supplements so pub-lished
prima facie evidence of the general and permanent laws of North
Carolina contained in these supplements.
Acting under authority of this legislation, the Division of Legislative
Drafting and Codification of Statutes supervised the publication by The
Michie Company of the interim and cumulative pocket supplements of the
General Statutes, including the laws of 1945 and annotations thereto. The
cumulative pocket supplements to the General Statutes are sold under con-tract
with The Michie Company to subscribers at a cost of $10.00 for each
biennium.
Legislative Drafting
During the General Assembly of 1945, the staff of this office was called
upon to prepare a total of 1237 bills, which were at the request of various
State and local officials and members of the General Assembly for considera-tion
at that time. This represented a very large proportion of the total
number of bills presented to the General Assembly for enactment.
The drafting of this legislation by the members of the staff of this depart-ment
aids in the codification of these laws in the supplement to the General
Statutes, which is later published by The Michie Company. Particular ef-fort
is made in the drafting of legislation to fit it in to the existing codifica-tion
of our statutory law. While the performance of these duties required the
cooperation of all the members of this staff and engaged most of the attention
of the office during the session of the General Assembly, it was considered
by me as well worth the time and effort involved and seemed to be appreciated
by the members of the General Assembly, as evidenced by the adoption of
Joint Resolution No. 1501, commending the Attorney General and his entire
staff for assistance rendered the membership of the General Assembly of
1945.
This work is now required by Article 2 of Chapter 114 of the General Sta-tutes,
creating the Department of Justice.
Division of Criminal and Civil Statistics
During the biennium the work of this division has continued under the
direction of Mr. Clifton W. Beckwith. A report of its activities has been
prepared by the director and will be made a pai-t of this statement. There
is included as a part of this Biennial Report a compilation of statistics cover-ing
the activities of ou^" criminal courts, other than courts of justices of the
peace, and a summarization of civil cases tried in our Superior Court during
the biennium.
A Recommendation
The recommendation is now renewed that the General Assembly, by enact-ment
of a statute, authorize that there be included in each bill of cost, in all
civil and criminal cases, a fee of ten cents to be paid to the reporting officer
of the superior and inferior courts making the required statistical reports.
There is a great deal of opposition to these reports by the reporting officers,
as it is felt that they do this work without compensation and often at consid-
18 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
erable expense to themselves. In large counties it requires a very substantial
portion of the time of one employee to prepare the required reports. If the
fee is allowed by law, the reporting officials will feel that they have been
reasonably compensated for their time and expense and much better report-ing
will be obtainable.
State Bureau of Investigation
During the latter part of the biennium, Mr. Thomas Creekmore resigned
as Director of the Bureau of Investigation and Mr. Walter F. Anderson, the
Chief of Police of Charlotte, North Carolina, was appointed to succeed him.
Mr. Anderson came to this bureau with long and valuable experience as a
police and investigating officer, having risen from the ranks of the police
force of Winston-Salem to become the Chief of Police of that city and later
was selected as Chief of Police of Charlotte.
There is included in this Biennial Report the report made by Mr. Anderson
as the Director of the Bureau of Investigation. The opportunity for service
by this bureau is greatly enhanced by the character of the personnel of the
bureau and the fine cooperation which we are now getting from the sheriffs,
chiefs of police, solicitors, prosecuting attorneys and other officials. The
demands on the bureau for its services far exceed the ability of the limited
personnel to respond. I urge that the General Assembly shall give careful
consideration to the recommendations of the director of the bureau for the
expansion of this service. In the post-war period, it is now evident it will
be called upon more and more in criminal investigations requiring the char-acter
of service which this bureau offers.
Revenue Department and Motor Vehicle Department
During the last biennium the tax collections of the Department of Revenue
have far exceeded any year in the history of the State. Under the terms of
the statute, G.S. 114-4, Mr. W. J. Adams, Jr., was appointed as Assistant
Attorney General assigned to this department. Upon the resignation of Mr.
Adams and the appointment of Mr. Frank P. Spruill, Jr., as Assistant Attor-ney
General, this work was continued under his direction.
Mrs. Cornelia McKimmon Trott, who had served as legal assistant in this
office, resigned in the last year of the biennium. Later Mr. James E. Tucker,
who had served on the staff of this office since 1938, was assigned to work
in this department as an employee of the Department of Revenue but under
the direction and supervision of the Attorney General, and authorized to act
as one of my representatives in that office.
The enormous increase in volume of the collection of taxes for the General
Fund and Highway Fund in the Revenue Department has imposed a tre-mendous
burden on the legal staff, which is entirely too much for one lawyer
to undertake to perform. All of the work done in this office is under my
supervision, but the details must be carried forward by the assistants as-signed
to the work. There should be at least two Assistant Attorneys Gen-eral
assigned to the work of this department, in conjunction with the work
of the Motor Vehicle Department.
28] biennial report of the attorney general 19
Recommendation
The number of Assistant Attorneys General on my staff is now limited to
four. I strongly recommend that the number of Assistant Attorneys General
be left to be determined by appropriations made by the General Assembly.
Obviously, the work of this office will grow with the expansion of State agen-cies
and no good reason can be found to have a statutory limitation on the
number to be provided for this service. The appropriation made by the
General Assembly each biennium will determine this question.
The Assistant Attorney General assigned to the Department of Revenue,
and the other assistant there who is now classified as a Senior Attorney,
likewise provide the legal services needed by the Motor Vehicles Department.
The legal work of the Motor Vehicles Department is not comparable to the
extent of the legal work of the Department of Revenue, but is very substan-tial
as this department is likewise engaged in the collection of motor vehicle
revenues as well as having the supervision of the State Highway Patrol in
its activities throughout the State.
During the biennium we have been extremely fortunate in having very
little tax litigation, due to the fact that the Commissioner of Revenue, Mr.
Edwin Gill, and the staff of the Department of Justice have endeavored at all
time to judicially and fairly consider the tax questions which arise with tax-payers.
Tax litigation in this State has been very small indeed. It can be
anticipated that in the coming years, we may not be so fortunate, as the tax
problems become more acute and extensive.
Appreciation is expressed for the fine cooperation and consideration we
have received from Mr. Edwin Gill, Commissioner of Revenue, and Mr. T.
Boddie Ward, Commissioner of Motor Vehicles, and the members of their
staffs.
Office Conferences and Consultations with State Officers and
Departmental Officials
Under the provisions of the State Constitution and laws enacted in pursu-ance
thereto, this office has continued to act as the legal advisor for State
officials, departments, bureaus and institutions. Throughout the biennium
in frequent conferences with State officials and department heads, oral advice
has been given and in numerous instances written opinions have been fur-nished.
Due to changing conditions in the field of public education and with the
return of many veterans from service, more than usual demands have been
made upon this office for legal services in connection with housing students
in our schools and colleges. The problem is extensive and acute throughSut
this State, as well as elsewhere.
The University of North Carolina at Chapel Hill has found it necessary to
erect dormitory space costing $1,000,000 and at State College costing $1,-
200,000. Detailed contracts and plans for financing these projects were pre-pared
or supervised in this office.
Appreciation is expressed to Governor R. Gregg Cherry and all other State
officials for the cooperation we have received during the biennium, and the
assistance given us in the performance of our duties.
20 biennial report of the attorney general [vol.
Atlantic and North Carolina Railroad
During the biennium the Attorney General's office has been called upon
for legal assistance to the President and Directors of the North Carolina
Railroad Company. This railroad continued to be operated by the lessee,
the Atlantic and East Carolina Railway Company, during the biennium and
as a result of the increase in its gross revenues, has substantially reiaced
the indebtedness to the State of North Carolina for funds which had been
borrowed for its rehabilitation program and otherwise, reference to which
is made in the last biennial report of this department.
The future success of the railroad will in a large part depend upon the
cooperation of the State and its various departments and agencies. With
such help as the State may be able to provide for this company, it is entirely
probable that the railroad will continue to be operated successfully and will
eventually retire in full the indebtedness to the State. The amount of the
State's investment in this road is, in my opinion, fully justified as it remains
as an important artery of trade and commerce in the section of the State it
serves. Cherry Point Marine Air Station, which is located on its line, is a
permanent marine base and provides a substantial source of revenue.
The Port of Morehead City will evidently expand, now that the Standard
Oil Company of New Jersey has built large receiving tanks for petroleum
products on the Port Authority premises and are distributing petroleum
products from that point, a great deal of which moves over rails of the com-pany.
Advisory Opinions to Local Officials
As has been the custom for many years, the office of the Attorney General
has continued to furnish advisory opinions to county, city and other local
officials, upon numerous questions of administrative law and procedure. The
demand for advisory opinions from this office generally originating through
attorneys representing these local governments, they have been utilizing this
method of determining unsettled administrative practices and questions which
arise.
The effort of this office to provide the opinions of local officials has
represented a large part of the work of the staff of this office, but an effort
has always been made to request that the local legal advisors be first
consulted before submitting the questions to this office.
The opinions rendered local officials are very extensive and numerous,
to such an extent that it would be impracticable to publish all of them
as a part of this report. Digests of these opinions are periodically pub-lished
in POPULAR GOVERNMENT, the magazine of the Institute of
Government of the University of North Carolina, and summaries of these
opinions are periodically carried in the press of the State. Digests of
opinions of special interest to cities and towns are mimeographed and
distributed by the North Carolina League of Municipalities.
State Banking Commission
During the biennium the Attorney General has sat as an ex officio
member of the State Banking Commission and has participated in the
consideration of the many problems confronting this commission.
28] BIENNIAL REPORT OF ATTORNEY GENERAL 21
A report of the activities of this commission will be made through the
Commissioner of Banks. Special consideration has been given to the regu-lations
of the small loan business, which was placed under the supervision
of the State Banking Commission by an Act of the General Assembly
of 1945.
Recommendation
It is evident that the omitting of lending companies making loans on
motor vehicles from the operation of the Act was unfortunate. I join in
the recommendation of the Commissioner of Banks that the law should
be amended to include all such agencies engaged in making small loans,
in Older to insure uniformity of practice and prevent the public from being
imposed upon by agencies engaged in this business.
Teachers' and State Employees' Retirement System
IN North Carolina
This department, in keeping with the requirement of the law, has con-tinued
to furnish legal services for the Board of Trustees of this System.
The increasing work of this System has, as might be expected, added to
the legal work of this office extensively. As the System grows and the re-tirements
become more numerous, it is evident that the legal work of this
System will make further demands upon us. We have had the finest possi-ble
cooperation from the present Director, Mr. Nathan H. Yelton, and
his predecessor.
Unemployment Compensation Commission
Although the Unemployment Compensation Commission has its own
legal staft', the Attorney General's office from time to time is requested
to advice with the attorneys representing this commission. No legal prob-lem
of any peculiar difficulty has been presented during the biennium.
State Board of Public Welfare and the State Commission
FOR THE Blind
Duiing the past biennium, as theretofore, this office has acted as legal
advisor to the State Board of Public Welfare and the State Commission
for the Blind. There have been frequent requests for office consultations,
and written advisory opinions, some of which are set forth in this report.
We acknowledge the fine cooperation we have had from Dr. Ellen Winston,
Commissioner of the Board of Public Welfare, and Dr. Roma S. Cheek
and her successor. Miss Helen P. Reinhardt, as the executive heads of the
State Commission for the Blind.
It is impossible to overstate the work being done by these social agencies
for the welfare of needy people of the State. It has been a source of real
satisfaction to cooperate with them in all legal problems arising in con-nection
with their responsibilites.
22 biennial report of the attorney general [vol.
State Department of Agriculture
The State Department of Agriculture has had frequent occasion to
call upon this office for legal assistance in problems which have arisen
in the performance of their duties, which extend through the confines of the
State. The broad powers given to the Commissioner of Agriculture and
the State Board of Agriculture, and the expanding functions performed
by this important department, touch the lives of all the rural and many
of the urban people of the State. Space does not permit detailing of the
numerous occasions for rendering legal assistance to this department. We
are happy to acknowledge the fine cooperation of the Commissioner of the
Agriculture, Mr. W. Kerr Scott, and all members of his staff.
Department of Conservation and Development
The Department of Conservation and Development has grown to be
one of the largest State Departments. The extensive functions now perform-ed
by this department, including within it the Division of Game and Inland
Fisheries and the large personnel required in the enforcement of game
and fishing laws and the protection of forests, have given occasion to
many calls for legal assistance. An effort has been made to serve all the
demands made by this department for legal services and we acknowledge
with appreciation the cooperation we have received at the hand of the Di-rector,
Mr. R. Bruce Etheridge, and his entire staff. The legal services
required by this department require a substantial part of the time of this
office.
Other State Departments and Agencies
During the biennium, this office has had numerous requests for confer-ences
and oral and written advisory opinions to other State departments,
agencies and institutions. Among the ones most frequently calling upon
us for legal assistance and advice has been the State Board of Alcoholic
Control, the Banking Department, the Adjutant General's Office, the
Budget Bureau, the State Board of the Elections, the Local Government
Commission, the Division of Purchase and Contract; and the recently cre-ated
boards and commissions, the Hospitals Board of Control, the Veterans
Commission, the Recreation Commission and the Medical Care Commis-sion.
During the course of the biennium the staff of the office has had oc-casion
to be called upon by all of the State departments, institutions and
agencies for legal assistance and advice. The demands for brevity in this
summary exclude a detailed statement of these matters.
Industrial Commission and Workmen's
Compensation Payments
All State employees, except the elected officials, are subject to the pro-visions
of the Workmen's Compensation Act. With the many people now
employed by the State, there are numerous accidents arising out of and
28] BIENNIAL REPORT OF THE ATTORNEY GENERAL 23
in the course of employment, some of which are fatal. I am informed that
the total amount of Workmen's Compensation claims now being paid by
the State are approximately $75,000.00 a year, and the tendency is for
a steady increase in these payments.
The State Highway and Public Works Commission has handled the
settlement of claims through its own legal staff and these represent probably
more than 50 Vi of the claims.
This office, when called upon by the various agencies of the State in
case of accidents of this character, has appeared before the Industrial
Commission and represented the interest of the State. The increasing
number of such cases had made greater demands upon this office than
heretofore.
Many claims, I am told, are settled by departments without being
brought to the attention of this office. The members of the Industrial Com-mission
have suggested that in all cases, when claims arise, they should
be submitted to the Attorney General's Office for advice as to the proper
handling. In many instances the claims are brought to our attention
only after they are set for hearing before the hearing commissioner.
It is my opinion that in every instance of a claim arising, it should
be passed upon from a legal standpoint, in apt time, before an agreement
for compensation is entered into.
Criminal Cases of Special Interest
State V. Williams and Hendrix, 22U N. C. 18S, 317 U. S. 287
A series of North Carolina decisions hold that a divorce decree obtained
from a North Carolina defendant in a State in which only the plaintiff
is domiciled and in which the defendant is not personally served with pro-cess
and makes no appearance will be treated as void in North Carolina.
These decisions were supported by the holding of the United States Su-preme
Court in HADDOCK v. HADDOCK, 201 U. S. 562, but the consti-tutionality
of the North Carolina rule was challenged in STATE v WIL-LIAMS
AND HENDRIX. The defendants, convicted of bigamous cohabi-tation
in Caldwell County, had obtained in Nevada divorces from their
North Carolina spouses on service by publication, had married, and had
lived together in North Carolina. Their contention that the Nevada
divorce decrees were entitled to full faith and credit under Article IV, Sec-tion
1, of the United States Constitution, was rejected by the North Car-olina
Supreme Court in STATE v. WILLIAMS AND HENDRIX, 220
N. C. 445. A writ of ce)-tiomri was granted by the United States Supreme
Court and the case was heard by that Court at the October Term, 1942. The
United States Supreme Court overruled the d^ision of HADDOCK v. HAD-DOCK,
201 U. S. 562, reversed the conviction of the defendants, and re-manded
the case for further proceedings, 317 U. S. 287. The Supreme Court
of North Carolina remanded the case to the Superior Court of Caldwell
County for a new trial, 223 N. C. 609. In this prosecution, the State pro-ceeded
upon the theory that the plaintiffs in the divorce actions had ac-
24 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL.
quired no bona fide residences in Nevada. The jury accepted the State's
contentions and again returned a verdict of guilty. The North Carolina
Supreme Court affirmed the conviction. A writ of certiorari was granted
by the United States Supreme Court and the case was heard by that Court
at the October Term, 1944.
The United States Supreme Court affirmed the decision of the North
Carolina Supreme Court in STATE v. WILLIAMS AND HENDRIX, 325
U. S. 226. The rule now is that, notwithstanding the full faith and credit
provisions of the Federal Constitution, a decree of divorce rendered in
one state may be impeached collaterally and denied recognition in an-other,
upon the ground that neither of the parties had a domicil, or resi-dence
animo manendi, at the divorce forum; and that notwithstanding
the recital in the decree or record from the other state of the findings as
to jurisdictional fact of domicil or residence, the court in which the valid-ity
of the foreign decree is attacked may go behind the finding of the
foreign court as to the jurisdictional fact of domicil, and find that neither
of the parties had a bona fide domicil at the divorce forum and that there-fore
the foreign court had no jurisdiction to render the divorce decree for
purposes of its recognition under the full faith and credit provision,—at
least where the issue of domicil has not been litigated by a contested hearing
at the divorce forum.
State V. Biggs, 2kh N. C, 722.
The defendants, Elmer Hardie Biggs, Jr., William Dalton Biggs, and
John Edgar Messer, were indicted in the Superior Court of Guilford County
upon a charge of first degree murder in connection with the killing of E. J.
Swanson. The State contended that William Dalton Biggs and John Messer
were engaged in robbing Sv/anson's store when the kiJing occurred and
that Elmer H. Biggs, Jr., waited for the defendants in an automobile in
front of the store while the robbery was being perpetrated. The defendants
went to the State of Virginia and were brought back to North Carolina
for trial. The first trial resulted in a new trial being awarded by the Su-preme
Court. See State v. Elmer Hardie Biggs, et al, 224 N. C, 23. On the
second trial the defendants were convicted of murder in the first degree i
as to each defendant, and the defendants appealed to the Supreme Court.
The Supreme Court found no error in connection with the trial in the lower ,
court.
State V. DeGraffenreid, 224. N. C, 517
The defendant, Lucille DeGraffenreid, was indicted in the Superior Court
of Lee County upon a charge of first degree murder for the killing of OUie
Moore. The deceased, OUie Moore, et al, attended a party at the home of
Leon and Lucille DeGraffenreid. The deceased was asked to leave the
house and before his departure was stabbed with a butcher knife. The case
was tried three times. In the first trial the defendant was convicted of man-slaughter
and a new trial was awarded on appeal to the Supreme Court.
See State v. DeGraffenreid, 222 N. C, 113.
L'S] BIENNIAL REPORT OF ATTORNEY GENERAL 25
On the second trial the defendant was convicted of murder in the second
degree and her appeal to the Supreme Court ordered a new trial. State
V. DeGraffenreid, 223 N. C, 461. On the third trial the defendant was con-victed
of murder in the second degree, and again appealed to the Supreme
Court, and upon this appeal, no error was found in connection with the
trial in the lower court.
State V. Inman, 22U N. C, 531
The defendants, Dewey F. Inman and Russell A. Stark, were indicted
in the Superior Court of Lee County on charges of rape and highway rob-bery.
The defendants were privates in the United States Army and the
Staff Judge Advocate at Fort Jackson, South Carolina, filed a request for
the return of the defendants to military control. A trial Judge denied this
request and thereafter, before the defendants were arraigned, they entered
separate pleas to the jurisdiction of Lee County Superior Court. The trial
Judge overruled the defendants' pleas to the jurisdiction of the court and
the defendants from this order excepted and appealed to the Supreme
Couit. After their cases were docketed in the Supreme Court the defendants
filed in the Supreme Court a petition or application for a writ of prohibition.
The Supreme Court held that the attempted appeal of the defendants from
the adverse ruling on their objections to the jurisdiction of the court was
premature and denied the application for writ of prohibition. On motion
of the Attorney General, the appeal as to both defendants was dismissed
and the petition for writ of prohibition was denied.
State V. Weinstein, 22^ N. C, 6^5
The defendant, Harry Weinstein, was indicted in the Superior Court
of Wake County on charges of larceny and receiving stolen property, know-ing
it to be stolen. The first evidence disclosed that the Raleigh Junior
Chamber of Commerce conducted a drive through newspapers and radio
stations urging citizens to donate their scrap paper, and at a certain
date to place scrap paper in bundles in front of their houses for collection.
Trucks belonging to the defendant were seen gathering the paper in sec-tions
of the City of Raleigh, and this, with other evidence, resulted in the
defendant being convicted on both counts in the bill of indictment. The
defendant appealed to the Supreme Court from the judgment entered on the
verdict entered in the Superior Court. The Supreme Court of North Car-olina
considered the defendant's exceptions and found no error in the trial
of the lower court. The defendant's petition to the Supreme Court of the
United States for a writ of certiorari was denied.
State V. John Emery, et als, 22h N. C. 581
The defendants, John Emery, Bill Emery, and LeRoy Turner, were
indicted in the Superior Court of Polk County following an indictment
containing six counts charging the defendants with violations of the pro*
hibition laws. During the trial in the Superior Court the regular panel of
jurors was exhausted and most of the male bystanders were exhausted for
26 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
the purpose of jury duty. The Sheriff then called from among the bystand-ers
two women of good moral character, freeholders and residents of the
County, and they were accepted by the Solicitor as satisfactory jurors.
The defendants objected and moved the court to excuse both women from
jury service upon the grounds that they were not qualified because of their
sex to serve as petit jurors. The defendants' objections were overruled and
upon a general verdict of guilty as to each of the defendants, motion was
made to set aside the verdict upon the grounds of jury defect. This motion
was overruled and from the judgment pronounced upon the verdict, the
defendants appealed to the Supreme Court. The Supreme Court held that
a jury, as understood at common law and as used in our Constitutions,
signifies twelve good and lawful men in a court of justice, duly selected
and impaneled in the case to be tried. It was held that women are to be
excluded from juries because of their sex, and that aliens and persons under
twenty-one years of age are also not competent to serve. A venire de novo
was ordered by the Supreme Court.
State V. Henry French, 225 N. C, 276
The defendant, Henry French, was indicted in the Superior Court of
Montgomery County upon an indictment charging him with the murder of
Duck LeGrand. The evidence disclosed that there was an argument because
of damages to French's car, French having struck a telephone pole in going
around the car of James Richardson. Duck LeGrand and her husband were
in the car driven by Richardson. After a short time the controversy was
renewed and French went to his house and came back with a rifle and
fired four or five times in the car where Duck LeGrand and her husband
were sitting. Duck LeGrand started to get out of the car when the de-fendant
fired again and she fell. The defendant was convicted of murder in
the first degree. The defendant appealed from the judgment rendered on
the verdict to the Supreme Court, and after considering the exceptions, the
Supreme Court found no error in the trial below.
State V. Lord, 225 N. C, 3^5
The defendant was indicted in the Superior Court of Cabarrus County I
for the murder of Elder Phifer. The defendant had been keeping company
with the deceased, a girl of about seventeen years of age. He became jealous
because of her attentions to others, and on the night of October 21, 1944,
the defendant saw the deceased at a cafe with another girl and boy. The
deceased refused to talk with the defendant and he went to his rooming
house and obtained a shotgun. Not finding the deceased anywhere in town, |
the defendant went to a cotton patch near the home of the deceased,
and waited for her. As the deceased approached between twelve and one
o'clock in the morning, the defendant came out of the cotton patch and j \
shot the deceased. The jury convicted the defendant of murder in the first
degree and from the judgment of death by asphyxiation, the defendant
appealed to the Supreme Court. The Supreme Court upheld the verdict and
judgment of the trial court and found no error.
28] BIENNIAL REPORT OF THE ATTORNEY GENERAL 27
State V. Lacy Scoggins, et al, 225 N. C, 71
The defendants, Lacy Scoggins and Newt Thompson, were indicted in
the Superior Court of Lee County in connection with the death by drowning
of Leonard Hall. The State's evidence disclosed that the defendants, the de-ceased,
and two women were in two boats on a pond; one of the defendants
tilted the other boat so that all of its occupants except the deceased were
thrown into the water. The deceased refused to give one of the defendants
the remainder of the whiskey that was in the boat and thereupon one of
the defendants struck the deceased three sharp blows on the head with a
paddle, knocking him flat in the boat and apparently rendering him un-conscious.
Both of the defendants then standing in the water, took hold
of the boat in which the deceased was lying and turned it bottom up, throw-ing
the deceased into the pond. The deceased's inert body floated away
and no attempt was made to rescue it. The next morning the dead body
was recovered and it was determined that death was due to drowning. The
defendants were convicted of manslaughter and from the judgment of
the Superior Court imposing prison sentence, the defendants appealed to
the Supreme Court assigning errors. The Supreme Court of North Carolina
considered the defendants' assignments of error and found them to be
without substantial merit. No error was found in the proceedings of the
trial court.
State V. Bennett, 226 N. C, 82
The defendants, Bennett, Gibson, Salmon, Carroll, Agner, Norris and
Thompson, were indicted for the murder of R. L. Beck. It was charged
that the murder was committed in the perpetration of the crime of robbery.
Prior to the drawing of the jury, the State took a nol. pros, with leave
as to Gibson. During the progress of the trial Salmon entered a plea of guil-ty
of murder in the second degree, and at the close of argument of counsel,
Agner and Norris entered pleas of guilty of murder in the second degree.
The case was submitted to the jury as to Carroll, Thompson, and Bennett;
as to each of these the jury rendered a verdict of murder in the second
degree. The defendant Bennett appealed to the Supreme Court. The evidence
of the State disclosed that all of these persons entered into a conspiracy to
hold up and rob the deceased Beck. The defendant Salmon actually fired
the gun that killed the deceased; others of the defendants waited in the
car which carried Salmon away. Some of the defendants made confessions
to the officers which were used in the trial. The assignm.ents of error were
numerous and the Supreme Court, after giving careful attention to each of
them, failed to find any cause for disturbing the judgment on the verdict
against the appellant Bennett. No error was found in the proceedings of
the trial court.
State V. Edward Mays, 225 N. C, 486
The defendant was indicted in the Superior Court of Lee County upon
a charge of murder in the first degree in connection with the death of one
Mattie L. Salmon. The deceased, a woman of about seventy-five years of age,
28 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
was found dead in her home where she lived by herself. She had been crim-inally
assaulted, and her death was apparently caused by a dress or other
clothing placed over her face and being smothered to death. The defendant
was suspected and arrested. He made numerous confessions as to how
he killed the deceased. The evidence disclosed that the defendant was a
native of Abyssinia, and that he had formerly lived as a native of his
country in the jungle of that country under very primitive conditions. He
and other Abyssinian boys came to Canada and the defendant gradually
worked his way to the United States and came to North Carolina where
he settled. The jury convicted the defendant of murder in the first degree,
and upon appeal, the Supreme Court, after giving all due consideration
to the assignments of error, found that they did not disclose any cause
for disturbing the verdict. No error was found in the proceedings of the
trial court.
State V. Stone, 226 N. C, 97
The defendant was indicted in the Superior Court of Robeson County
on a bill of indictment charging him with the murder in the second degree
for the killing of T. Willis Edwards. The evidence shows that the prisoner
and the deceased were drinking together and upon the prisoner's invita-tion,
went together towards the prisoner's house about 11 p. m. About 3
o'clock A. M., a gunshot was heard in the prisoner's home and two or three
minutes later a man was seen leaving the home by the back door. The next
morning in the prisoner's home a table was found on which there was a jar
and a bottle, both having contained liquor, with two chairs close to the
table and a bucket between them containing cigarette butts. The deceased
was found dead on his back in the doorway of the room where the table
was located. The prisoner's shotgun was between the deceased's legs, one
barrel of which contained an empty shell with hammer down and the other
hammer cocked. The deceased had a gunshot wound in his breast without
powder burns on his body or white shirt. The prisoner made contradictory
statements as to the time he left his home and the discovery of the body
of the deceased. On the first trial the defendant was convicted of man-slaughter,
and upon appeal to the Supreme Court, a new trial was awarded.
State V. Stone, 224 N. C, 849.
On the second trial the defendant was convicted of murder in the second
degree and again appealed to the Supreme Court, The Supreme Court held
that its former ruling in the first case to the effect that there was sufficient
evidence to be submitted to the jury, was controlling on his appeal, and found
no error in the trial below.
State V. Wise, 225 N. C, 746
The defendant was indicted in the Superior Court of Guilford County for
the murder of his paramour. The deceased was a married woman, and an
adulterous relationship had existed between the deceased and the defendant
for some time. On the day that the deceased was killed she and the defen-dant
met at an appointed place and a quarrel arose. The defendant cut
the deceased's throat with a knife and struck the deceased about the head
2S] BIENNIAL REPORT OF ATTORNEY GENERAL 29
und neck with a club. She died from these injuries. "The jury found the
defendant guilty of murder in the first degree and from the judgment on
this verdict the defendant appealed to the Supreme Court. The Supreme
Court held that the trial court's instructions as to the various degrees of
homicide were correct and that the court had correctly defined malice,
deliberation and premeditation. No error was found in the proceedings of
the trial court.
»tate V. Stewart, 226 N. C, 299
The defendant was indicted in the Superior Court of Wake County on a
charge of mui'der in the first degree in connection with the killing of Ernest
Jones, Jr. The evidence disclosed that the defendant was searching for a
man whom he had seen with his wife. In his search he entered a house and
questioned the owner of the house who stated that he did not know where
the person whom the defendant was seeking, had gone. The defendant
started to leave the house and then turned and demanded of a visitor in
the house the same information. Upon receiving a negative reply from the
visitox*, who was the deceased Ernest Jones, the defendant cursed him and
received a reply in kind. The defendant stated that he would shoot the
deceased and pulled a pistol from his pocket and shot and killed him. The
jury convicted the defendant of murder in the first degree and from the
judgment of death by asphyxiation, the defendant appealed to the Su-preme
Court. It was contended on the appeal in behalf of the defendant
that the defendant's intent to kill and the act of killing were simultaneous
and, therefore, there was no premeditation and deliber.ation. The Supreme
Court held that in this case there was sufficient evidence of premeditation
and deliberation and found no error in the trial below.
State V. Vaden, et ah, 226 N. C, 138
The defendants Woodrow Vaden and John Daniel Vaden, were indicted in
the Superior Court of Rockingham County upon an indictment charging
the defendants with the murder of Carl Bullis. The State's evidence dis-closed
that there was an aff'ray at a filling station engaged in by all of
the defendants; that the fight was stopped, but that thereafter the de-fendants
sought and found the deceased at another filling station. At this
filling station other parties induced all of them to shake hands and this
apparently settled the controversy. The defendants, brothers, started to
leave in their truck when one of them called the -proprietor of the filling
station and expressed some dissatisfaction about the settlement. The de-ceased
came out of the filling station and the quarrel was renewed. The
deceased was armed with a knife and started fighting with one of the de-fendants,
who was armed with a blackjack. While they were fighting
another defendant shot from the truck and fatally injured the deceased.
The defendants were convicted of manslaughter and appealed to the Su-preme
Court. The Supreme Court held that the second fight was but a con-tinuation
of the first fight, and that the purported settlement of the con-troversy
was not entered into in good faith, and that in reality the defen-
30 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 28]
dants had not quit tile fight. It was held that the motion to non-suit on the
grounds that the State's evidence established the defense of self-defense
was properly denied. No error was found in the proceedings of the trial
below.
TiDELANDS
During the biennium this office took an active part in supporting legisla-tion
in the Congress of the United States, in which it was proposed that
the United States should disclaim any title to the"^ lands lying beneath
the navigable waters within the several States and within the three mile lim-it
on the coastline. This legislation culminated in the introduction of H. J.
225, which was a Committee Substitute brought out by the Committee on
Judiciary of the House.
This legislation was made necessary by the position taken by the Secre-tary
of the Interior, contrary to all former views of himself and other
Secretaries of the Interior, who claimed in 1937 that there was some doubt
as to the States having the title to the lands lying beneath the ocean within
three miles of the coastline of the State of California, and other States.
As a result of this contention, seventeen Resolutions were introduced in
Congress for the purpose of disclaiming title to these tidal lands which
had been recognized as owned by the States since the founding of the Gov-ernment.
In cooperation with the Attorneys General of all the States of the
Union, except one state, and at the request of the Governor and the Depart-ment
of Conservation and Development, this office supported the enactment
of this legislation in Congress.
The resolution was adopted by the House of Representatives by a large
majority. Thereafter, the Secretary of the Interior instituted suit in the
District Court of the United States in California against an oil company,
claiming title to the lands lying seav/ard of the coastline and within three
miles thereof. While the resolution was pending in the Senate, the Cali-fornia
suit was discontinued and another suit instituted in the Supreme
Court of the United States, as the court of original jurisdiction, by the
United States against the State of California, claiming the ownership of
such lands. This claim, if established, would affect the ownership of the
State of North Carolina of the lands lying within three miles of its
coastline and probably the title to the other lands lying under its inland
waters.
After H. J. 225 had been adopted by the Senate, it was vetoed by the
President of the United States on the grounds that the matter was in
litigation in the Supreme Court of the United States and should be left
to the court to decide. Congress failed to override the veto.
The California case is now pending in the Supreme Court of the United
States but in all probability it may be many years before the questions
involved are finally settled.
CIVIL CASES
John J. Ingle v. State Board of Elections, 226 N. C. 454
This was a petition for a mandamus brought by John J. Ingle in the
Superior Court of Wake County against the State Board of Elections, ask-ing
that the State Board of Elections be required to cause the petitioner's
name to be placed on the official ballot as a candidate or nominee of the
Republican Party for the office of Associate Justice of the Supreme Court
of North Carolina, to be voted on in the general election to be held on
November 5, 1946. The substance of the petition was that petitioner had
filed notice of candidacy for the office of Associate Justice and that the
State Board of Elections had refused to accept his filing fee because
he had failed to, state for which vacancy on the Court he was seeking the
nomination.
The defendant board admitted refusing to place the name of the candi-date
on the ticket for this position, because the defendant had failed to
comply with the requirements of G. S. 163-147, which states that all can-didates
for Chief Justice and Associate Justice of the Supreme Court shall
file with the State Board of Elections, at the time of filing notice of can-didacy,
a notice designating to which of said vacancies the respective can-didate
is seeking the nomination; and the statute further provides that all
votes cast for any candidate shall be effective only for the vacancy for
which he has given notice of candidacy as provided.
The Judge of the Superior Court denied the petition for mandamus
and the action of the Judge was affirmed on appeal to the Supreme Court,
by the decision reported in 226 N. C, page 454.
Gardner v. Retirement System 226 N. C. 465
This case arose on a petition for mandamus to require the defendant.
Board of Trustees of North Carolina Local Governmental Employees' Re-tirement
System, to accept and enroll plaintiff as a member of the Retire-ment
System operated by defendant Board of Trustees. In the Superior
Court the case was heard upon the pleadings, and it appeared that the
plaintiff was at that time, and had been for a number of years, a member
of the Police Department of the City of Charlotte and was a member in
good standing in the Law Enforcement Officers' Benefit and Retirement
Fund, a retirement system for the benefit of peace officers created and es-tablished
by Section 143-167 of the General Statutes. The funds for re-tirement
allowances and other benefits under the Law Enforcement Offi-cers'
System are primarily obtained from deductions from members' sal-aries
and also from an item of $2.00 additional cost taxed against each
person convicted in a criminal case in this State and collected and paid
to the Treasurer of North Carolina. Subsequently the City of Charlotte
became an employer under the provisions of the Local Governmental Em-ployees'
Retirement System as established by Section 128-24 of the General
Statutes. The plaintiff as an employee of the City of Charlotte was entitled
to be a member of the Local Governmental Employees' Retirement System
32 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
unless he was excluded from membership by a provision in the act creating
the Local Governmental Employees' Retirement System as follows:
"Persons who are or who shall become members of any existing retire-ment
system and who are or who may be thereby entitled to benefits by
existing laws providing for retirement allowances for employees wholly or
partly at the expense of funds drawn from the Treasury of the State of
North Carolina or of any political subdivision thereof, shall not be mem-bers."
Unless the plaintiff was excluded by this provision, he was entitled to be
a member of both retirement systems. Upon the hearing in the Superior
Court, motions were made for judgment upon the pleadings; and the Su-perior
Court judge held that the plaintiff's membership in the Law En-forcement
Officers' Benefit and Retirement Fund was of such a nature that
any benefits paid under that system were financed from funds drawn from
the Treasury of the State of North Carolina even though such funds were
collected as costs in criminal proceedings and sent to the Treasurer of
North Carolina to be kept in a special fund. Judgment was signed by the
Superior Court in favor of the defendant Board of Trustees, and plaintiff
appealed to the Supreme Court. The Supreme Court held that the mem-bership
exclusion clause of the act creating the Local Governmental Em-ployees'
Retirement System should be interpreted to apply to those en-titled
to benefits from any funds coming into the hands of the State
Treasurer by virtue of a State law and was not restricted to membership in
a retirement system deriving benefits from the general funds of the State
Treasury; that the plaintiff was, therefore, excluded from membership in
the Local Governmental Employees' Retirement System. The judgment of
the Superior Court was, therefore, affirmed.
P. P. Johnson v. Edwin Gill, Commisioner of Revenue, 224 N. C. 638
This plaintiff was agent for two Chicago tailoring houses. He main-tained
a place of business in Charlotte from which he solicited orders for
clothes, took measurements, and forwarded orders to his companies. He
accepted part of the purchase price at time of order, and his companies col-lected
the remainder when the clothes were delivered by carrier to customer
c.o.d. The plaintiff failed to collect any sales or use tax from his customers
or to pay any tax to the State. The defendant. Commissioner of Revenue,
assessed, and the plaintiff paid under protest and brought this action to
recover. The court held (1) that use tax applied to the transaction, (2)
that the plaintiff was a "retailer" under the statute, required to collect and
remit the use tax, and (3) that the tax on plaintiff could be sustained even
as a sales tax because title to the clothes did not pass to customer until c.o.d.
delivery in North Carolina, when interstate commerce was at an end.
Standard Fertilizer Co., Inc., v. Edwin Gill, Commissioner
OF Revenue, 225 N. C. 426
On April 30, 1937, plaintiff entered into a contract with a Pennsylvania
corporation for installation of a 3prinkler system in its fertilizer plant.
Neither the contractor nor the plaintiff paid the excise or use tax imposed
28] BIENNIAL REPORT OF ATTORNEY GENERAL 33
by Section 427 of the Revenue Act upon building matei-ials used in this
State; nor was any return or report filed as required. Upon discovery of
the transaction in 1942, the defendant, Commissioner of Revenue, assessed
the tax on the plaintiff, who paid under protest and brought this action
to recover. The defendant, Commissioner of Revenue, contended that the
three-year statute of limitations in Section 414 applied only where a re-turn
had been filed and the assessment was for a "deficiency" in payment
of the tax. The Court declined to adopt this view, and decided that the
statute of limitations in Section 414 applied to all assessments under the
sales tax article, whether a return had been filed or not. Judgment for
plaintiff was rendered accordingly.
M. R. GODLEY ET AL. DbA GoDLEY BROTHERS V. R. GrEGG CHERRY,
Governor, et al
This was a suit in equity instituted in the U. S. District Court for the
Eastern District of North Carolina, Raleigh Division, seeking to enjoin
the State of North Carolina from enforcing Section 115 of the Revenue
Act (G. S. 105-47), which levies certain privilege taxes upon dealers in
horses and/or mules. The plaintiff contended that the statute was violative
of the U. S. Constitution. The matter was heard before a three-judge court
in Asheville in accordance with the provisions of Section 266 of the Judi-cial
Code (Section 380, Title 28, USCA). On June 27, 1945, the Court dis-missed
the suit on the ground that the plaintiffs had an adequate remedy at
law in the North Carolina courts. No appeal was taken.
OPINIONS TO GOVERNOR
Appropriation for Purchase of Property
28 December, 1944.
Honorable Charles Ross, Acting Chairman of the State Highway Com-mission,
at your request, has written me under date of December 27, with
reference to the allocation of funds for the purchase of a lot in the City
of Raleigh opposite the State Capitol for the purpose, at some time in the
future, of erecting thereon an office building for the State Highway and
Public Works Commission.
The allocation of the sum of $200,000.00 has been requested from the
Assistant Director of the Budget under the Appropriation item in the Ap-propriations
Act, Chapter 530, Session Laws of 1943, Title XII, Highway
and Public Works, subsection 6, Betterments State and County Roads,
and subsection (1), General Betterments. I am advised that the Governor,
acting under authority of the Act, has made available for expenditure
under this item, a sum more than sufficient for the intended purpose and
for the particular purpose for purchasing the site for the proposed building.
I am advised in the letter from the Acting Chairman, Mr. Ross, that the
State Highway Commission at a recent meeting passed a resolution ex-pressing
the opinion that an enlargement of the offices in Raleigh was
necessary in order to provide the pi-oper facilities for the Highway pro-gram,
and authorized the purchase of the land in question for this purpose,
and requested the Director of the Budget to allot from the funds mention-ed
the sum of $200,000.00.
In a conference with you and Mr. Ross and Mr. Deyton today, I under-stand
that it is the purpose to provide the land for the construction of the
building which will house the activities of the State Highway and Public
Works Commission, engaged in carrying on its activities, including the
betterments of State and county roads, and that without the adequate fa-cilities,
this work could not properly be carried on.
In my opinion, the allotment requested may legally be made under the
j
appropriation provided in Article XII of Chapter 530 of the Session Laws I
of 1943, subsection 6(1), General Betterments.
I
Double Office Holding; Member of North Carolina
j
Veterans Commission i
14 March, 1945. !
You inquire as to whethei- or not, in my opinion, membership on the
|
North Carolina Veterans Commission, created by Senate Bill 216 of the |
present session of the General Assembly, constitutes an office within the
meaning of Article XIV, Section 7, of the State Constitution to the extent ;'
it would bar a person now holding office from serving as a member of said r
commission.
|
I have given careful consideration to this question and I am strongly in- j,
clined to the opinion that membership on said commission is not an office i
within the meaning of the pertinent section of the Constitution, or that |.
[Vol. 28] BIENNIAL REPORT OF THE ATTORNEY GENERAL 35
if it is an office, it constitutes a commissioner for a special purpose. How-ever,
since the courts have not had an opportunity to pass on the question,
I cannot be sure that my opinion will be upheld by the court. I hesitate
to advise an official of the State to accept membership on a board or com-mission
when the court has not had an opportunity to pass on the status
of membership on such board or commission because if such official should
accept membership on the commission and such membership should be held
by the court to be an office, the official would have vacated his first office.
The court held in the case of Barnhill v. Thompson, 122 N. C. 493, that
the acceptance of a second office by one holding a public office operates ipso
facto to vacate the first. While the officer has a right to elect which he will
retain, his election is deemed to have been made when he accepts and quali-fies
for the second. The acceptance of the second office of itself is a resig-nation
of the first.
In the case of Whitehead v. Pittman, 165 N. C. 89, our court held, "Where
one holding an office or place of profit accepts another such office or posi-tion
in contravention of this Section of the Constitution, the first is vacated
eo instante, and any further acts done by him in connection with the first
office, are without color and cannot be de facto.
Of course, one holding an office could be named as an ex officio member of
the commission without running afoul of Article XIV, Section 7.
Leasing of Property f'Or the North Carolina
Hospitals Board of Control
13 July, 1945
You have inquired as to the proper authority to execute a lease on behalf
of the North Carolina Hospitals Board of Control for property to be
leased to this board by the Federal Government.
General Statutes 143-48 provides for the creation in the Governor's
Office of a division to be known as the "Division of Purchase and Con-tract,"
which division shall be under the supervision and control, subject
to the provisions of the law, of a Director of Purchase and Contract.
General Statutes 143-49 provides that the Director of Purchase and
Contract shall have power and authority and it shall be his duty, subject
to the provisions of the article in which the section appears, to do the fol-lowing
things:
"(d) To rent or lease all grounds, buildings, offices, or other space
required by any department, institution, or agency of the State Gov-ernment:
Provided, this shall not include temporary quarters for
State Highway field forces or convict camps, or temporary places of
storage for road materials."
Under this Act the lease of the property made for the benefit of the
North Carolina Hospitals Board of Control should be executed on behalf of
the North Carolina Hospitals Board of Control by Mr. W. Z. Betts, who
is the Director of the Division of Purchase and Contract, and the practice
heretofore followed is to have the proper officials of the agency for which
the lease is executed also sign it. The title of the North Carolina Hospitals
Board of Control is fixed by General Statutes 122-11.8 and on behalf of
36 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
this board the lease should be signed by its General Business -Manager,
Mr. R, M, Rothgeb, whose appointment and authority is fixed by General
Statutes 122-11.3.
I would therefore suggest that in the execution of the lease on behalf of
the State agency, it should be done substantially as follows:
"Division of Purchase and Contract
of the State of North Carolina
By:
Director
For and on behalf of the North
Carolina Hospitals Board of
Control
North Carolina Hospitals Board of
Control
By:
General Business Manager"
Extradition; Floyd E. Snow; Expense in Felony
Cases Paid by State and Others by County
11 September, 1945
I have reviewed the file in the above matter in which the Sheriff con-tends
that the expense incident to his trip to Florida to return the defen-dant
to the State of North Carolina should be paid by the State, and you
inquii'e as to whether or not this expense should be paid by the State or
the county.
Section 15-78 of the General Statutes reads as follows:
"When the crime shall be a felony, the expenses shall be paid out
of the state treasury, on the certificate of the governor and warrant of
the auditor; and in all other cases they shall be paid out of the county
treasury in the county wherein the crime is alleged to have been com-mitted.
The expenses shall be the actual traveling and subsistence
costs of the agent of the demanding state, together with such legal
fees as were paid to the officers of the state on whose governor the
requisition is made. In every case the officer entitled to these expenses
shall itemize the same and verify them by his oath for presentation,
either to the governor of the state, in proper cases, or to the board of
county commissioners, in cases in which the county pays such ex-penses."
It is apparent from the above section that in felony cases the expense
must be paid by the State and in all other cases such expense shall be paid
out of the county treasury in the county wherein the crime is alleged to
have been committed. The question, therefore, arises as to whether or not
in the instant case, the crime constitutes that of a felony or a misdemeanor.
The warrant in the file in this case charges the defendant with obtaining
certain sums of money by representing that he had sufficient funds in the
bank or had made arrangements for a loan to take care of certain checks
issued by him. While the warrant does not state under what section of the
statutes the crime is charged, I assume that it is Section 14-106 of the
General Statutes, which reads as follows:
"Every person who, with intent to cheat and defraud another, shall
obtain money, credit, goods, wares or any other thing of value by
28] BIENNIAL REPORT OF ATTORNEY GENERAL 37
means of a check, draft or order of any kind upon any bank, person,
firm or corporation, not indebted to the drawer, or where he has not
provided for the payment or acceptance of the same, and the same be
not paid upon presentation, shall be guilty of a misdemeanor, and
upon conviction shall be fined or imprisoned, or both, at the discretion
of the court. The giving of the aforesaid worthless check, draft, or oi'-
der shall be prima facie evidence of an intent to cheat and defraud."
It is apparent that the crime in this case is a misdemeanor and that the
expense incident to the extradition proceeding instituted to bring the de-fendant
back to Mitchell County will have to be borne by that county.
If the defendant is convicted, I assume that the Court will assess as
part of the costs, the expense incident to the extradition proceeding and
the county thereby reimbvirsed for the funds advanced by it.
I certainly agree with Sheriff Honeycutt that he should not be called
upon to stand the expense of this trip and should be reimbursed for the
same, but since this crime is a misdemeanor the statute clearly requires
the county to pay to the sheriff the expense incurred by him in bringing
the defendant back to the county.
Use of School Buses to Carry High School Students in Gaston
County to Vocational Textile School
2 October, 1945
In conversation with you yesterday, you requested me to furnish you
with an opinion as to the authority of the State Board of Education to
authorize the use of school buses in transporting high school students to
and from the Vocational Textile School, created under the authority of
Chapter 360 of the Public Laws of 1941 (found in G. S., Chapter 115, Ar-ticle
36).
I understand that during previous years the school buses have been
used for the purpose of transporting high school students to and from
the school and that the question has recently arisen as to whether or not
the State Board of Education has the authority to adopt rules and regu-lations
w^hich would permit this service to continue, in view of the fact that
the General Assembly of 1945 enacted S. B. No. 385, Chapter 806, creating
a Board of Trustees for the North Carolina Vocational Textile School, it
having formerly been under the State Board of Education, G. S. 115-255.
It is my understanding that the teachers employed in this Vocational
Textile School are paid from State and Federal funds in the same manner
as other teachers in vocational schools are paid. It is my understanding
further that the students in the high schools to be transported to this Vo-cational
Textile School are pursuing their studies in the high schools in
Gaston County and will be given credit for the work done in the Voca-tional
Textile School in the same manner as courses taken in the regular
work of the high schools.
G. S. 115-374 provides that the control and management of all the fa-cilities
for the transportation of public school children shall be vested in
the State of North Carolina under the direction and supervision of the
State Board of Education, which shall have authority to promulgate rules
and regulations governing the organization, maintenance and operation
of school transportation facilities.
38 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
Under this broad grant of power, the State Board of Education would
have the authority to adopt rules and regulations which permitted the
transportation of the public school children or high school students in the
schools of Gaston County to and from the Vocational Textile School, to
pursue therein a part of the course of study for which credit is given
them in their high school work, unless there is some provision in our statute
which would prohibit the use of the buses for such purpose. The provision
in the statute which has bearing on this question is the following clause in
G. S. 115-374:
"The use of the school buses shall be limited to the transportation of
children to and from school for the regularly organized school day."
A narrow view of this section might prohibit the transportation of chil-dren
except on one route trips to and from the school which they regularly
attended, but I do not think that this narrow view is necessarily the cor-rect
one. It is my opinion that the State Board of Education, in its dis-cretion,
would have the power to permit the use of school buses for trans-porting
high school students in the regularly organized school day to
and from the Vocational Textile School, between this school and the high
schools attended by such students, without violating the provisions of this
section.
The policy involved in such a course would be supported by the paragraph
in G. S. 115-374 which authorizes the State Board of Education, under
rules and regulations to be adopted by them, to permit the use and opera-tion
of school buses for the transportation of school children on necessary
field trips while pursuing the courses of vocational agriculture, home
economics, trade and industrial vocational subject to and from demonstra-tion
projects carried on in connection therewith. The courses taken by the
high school students in the North Carolina Vocational Textile School
could not be properly designated as field trips, but the courses taken in this
vocational school are a very essential part of the education of those seek-ing
vocational training in the textile field, which would be denied them if
they were not permitted to use this method of transportation between the
different schools.
This, however, is a matter for the sound judgment and discretion of the
State Board of Education which could, in my opinion, permit or deny the
use of the buses for this purpose.
State Stream Sanitation and Conservation Committee; Con-tingency
AND Emergency Appropriations .
26 October, 1945 |
I have your letter enclosing to me copy of Senate Bill 378 creating a
State Stream Sanitation and Conservation Committee, and a letter from i
Honorable R. Bruce Etheridge, Chairman of the sub-committee of this i
Committee, and a letter from Honorable R. G. Deyton, Assistant Director I
of the Budget. In Mr. Deyton's letter he takes the position that under the
J
Act, contingency and emergency appropriations cannot be made for this
j
activity as the Act contemplates that the Committee shall act through j
28] BIENNIAL REPORT OF THE ATTORNEY GENERAL 39
the facilities of the agencies mentioned in the Act. You request my opinion
as to whether the Governor and Council of State could lawfully appropriate
funds to finance the activities of this Committee.
After a careful study of the Act, I am convinced that the conclusion
reached by Mr. Deyton is in part correct. The Act provides in Section 2
that the activities of the State Board of Health and the Department of
Conservation and Development shall be coordinated through a Committee
designated as a State Stream Sanitation and Conservation Committee. The
Act further provides that it shall be the duty of this committee, acting
through the facilities of the member agencies to perform the duties imposed
upon the Committee. In Section 5 of the Act, it is provided that in the
interest of efficient use of the personnel and facilities in execution of surveys,
^tudies and research, the committees are authorized to cooperate with
technical divisions of State institutions, and with municipalities, industries,
Federal agencies, adjoining states, and others.
No provision is made for any appropriation and in view of the fact that
the Act directly requires that the Committee shall act through the fa-cilities
of the member agencies in the performance of its work, it seems
to me that contingency and emergency appropriations could not be made for
such activities of the Committee as could be performed through the agen-cies
mentioned. This would exclude the appropriations for engineer and
director and a senior sanitation engineer, as well as travel, for such officials.
The Act provides in Section 4 that the Committee shall elect a chairman
and secretary. I would, therefore, think that a contingency and emergency
appropriation could legally be made to cover the expense of a secretaiy,
who might also be a stenographer. I would think that a contingency and
emergency appropriation might be made for necessary office supplies,
travel and per diem of new ex-officio members of the Committee who could
not be paid out of any appropriations for the affiliated Departments.
As to the expense in providing an engineer and director and a senior
sanitation engineer, if it is found that these are necessary to the proper
performance of the work of the Committee and cannot be provided by ap-propriations
available to the State Board of Health or Department of Con-servation
and Development, or their existing staff, an appropriation could
be made legally from the contingency and emergency fund to either the
State Board of Health or the Department of Conservation and Develop-ment
for providing for such of these sei'vices as might be found necessary,
if their own funds were inadequate for that purpose. The General Assem-bly
contemplates that the work of the Committee shall go forward, and
under the contingency and emergency appropriation, funds can be made
available to these Departments in order that they can comply with the
duties imposed upon them by the General Assembly when the appropria-tion
therefor is inadequate or when no appropriation has been made.
I am returning the correspondence and copy of the Act which you sent
me, three extra copies of this letter which you can furnish to the Depart-ments
concerned, if you desire to do so.
40 biennial report of the attorney general [vol.
Salary Increases of Judges and Solicitors
18 October, 1945
In a conference held in your office this morning you inquired if the salary
increases for Judges and Solicitors authorized by the 1945 Session of the
General Assembly, which are contingent upon the availability of funds,
should be paid to said Judges and Solicitors now or whether it will be nec-essary
to wait until the end of the biennium to determine whether funds
are available, and if so, to pay the salary increases, at that time.
Section 231/2 of Chapter 279 of the Session Laws of 1945 (the Appro-priations
Act) provides for an emergency salary of $10.00 per month to
be paid to all full-time school teachers and other State employees. This pro-vision
is not applicable to salaries exceeding $3,600.00 per year. This sec-tion
provides that this emergency salary shall be paid at the end of each
fiscal year of the biennium 1945-47 if there are sufficient revenues in the
general fund to pay the same. However, this provision is modified by a pro-viso
in this section which requires this emergency salary to be paid monthly
during the fiscal year of 1945-46 if the unappropriated surplus in the gen-eral
fund on June 30, 1945 shall be sufficient to pay the full amount or any
amount in multiples of $2.50. It has been determined that the revenues in
the general fund on June 30, 1945 were sufficient to pay the full $10.00
emergency salary, and the State employees and teachers are now receiving
this full amount.
Chapter 763 of the Session Laws of 1945 reads as follows:
"That on account of the increased cost of traveling, hotel and other
expense, the regular and special judges of the superior court are hereby
granted, in addition to the salary and expense allowance now paid them,
an additional expense allowance of nine hundred fifty dollars ($950.00)
per annum, payable monthly, provided such funds shall be available
after payment of teachers' and State employees' salaries and emer-gency
salaries under the Budget Appropriation Act for the biennium
one thousand nine hundred and forty-five—one thousand nine hundred
and forty-seven."
Chapter 764 of the Session Laws of 1945 reads as follows
:
"Section 1. That Section seven—forty-four of the General Statutes
of North Carolina is hereby amended by striking out the phrase 'forty-five
hundred dollars ($4,500.00),' and inserting in lieu thereof the
phrase 'five thousand dollars ($5,000.00).'
"Sec. 2. That Section seven—forty-five of the General Statutes of
North Carolina is hereby amended by striking out the phrase 'five
hundred ($500.00) Dollars' and inserting in lieu thereof the phrase
'seven hundred and fity dollars ($750.00).'
"Sec. 2%. Provided such funds shall be available after payment of
teacher's and State employees salaries and emergency salaries under
the Budget Appropriation Act for the biennium one thousand nine |
hundred and forty-five—one thousand nine hundred and forty seven."
In view of these enactments, the question arises whether the availability
of funds should be determined at the end of each month or at the end of the
biennium. In other words, if after paying the emergency salaries to teachers
and State employees in any given month there is available sufficient funds
l^b] BIENNIAL REPORT OF ATTORNEY GENERAL 41
to pay the increased salaries of Judges and Solicitors, should they receive
that salary at that time?
Chapter 763, quoted above, was adopted subsequent to the adoption of
the Appropriations Act, and it provides that the amount specified therein
shall be payable monthly. The same is true of Chapter 764 when it is in-sei-
ted in the amended section. By requiring these emergency salaries to be
paid monthly, the Legislature has evinced an intent to have the availability
of funds determined at the end of each month. Thus, if funds are available
to pay these emergency salai'ies to Judges and Solicitors after the payment
of the emergency salaries to State employees and teachers at the end of
any month, it is my opinion that they should at that time be paid.
I advise, therefore, that these emergency salaries should be paid to the
Judges and Solicitors since it appears that funds are available at the pres-ent
time after the payment of the emergency salaries to teachers and State
employees. It is not necessary to wait until the close of the biennium to de-termine
the availability of funds.
Peace Officers; Railroad and Other Company Police; Appointment
AND Issuance of Commission by Governor
29 April, 1946.
Reference is made to the letter of F. W. Hoover, General Manager of
Government Services, Inc., dated April 19, 1946.
In this letter it is stated that Government Services, Inc. of Washington,
D. C, has entered into a lease contract with the Tennessee Valley Authority
under the terms of which Government Services, Inc. will take over the
operation of the Authority's village facilities, consisting of various build-ings,
such as stores, public buildings, schools, hospitals, and approximately
four hundred houses at Fontana Dam. It is the purpose of the corporation to
develop the area into a recreational project for the pleasure and benefit of
tourists expected to visit Western North Carolina.
This corporation considers it necessary tb have its Security Officers at
Fontana Dam duly commissioned as Corporation Policemen in accordance
with the provisions of Sections 3484 and 3485 of Michie's North Carolina
Code of 1939. The corporation enclosed a list of men theretofore employ-ed
by the Tennessee Valley Authority and commissioned by the Governor's
office as State Police and asked that they be given commissions from your
office as Corporation Policemen of Government Services, Inc. The corpora-tion
asked for advice on this question as to procedure, requirements, and
policies of your office inasmuch as they expect to have other persons com-missioned
in the future. Your Executive Clerk, Mrs. Alma Corbitt, has
asked our office if it is proper to issue commissions to these men as Company
Police under the statutes provided in our State.
The sections of Michie's Code referred to in the letter and set forth above
appear in the General Statutes of North Carolina as Sections 60-83 and 60-
84; and for the purpose of this letter, we quote Section 60-83 which is as
follows
:
"Any corporation operating a railroad on which steam or electricity
is used as the motive power or any electric or water-power company or
42 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
construction company or manufacturing company or motor vehicle car-rier
may apply to the governor to commission such persons as the eor-poration
or company may designate to act as policemen for it. The gov-ernor
upon such application may appoint such persons or so many of
them as he may deem proper to be such policemen, and shall issue to the
persons so appointed a commission to act as such policemen. Nothing
contained in the provisions of this section shall have the effect to relieve
any such company from any civil liability now existing by statute or
under the common law for the act or acts of such policemen, in exercis-ing
or attempting to exercise the powers conferred by this section."
(Underscoring ours.)
While we do not know all of the functions of Government Services, Inc.
from the information before us as to its purposes and objects, it does not
seem to us that this corporation falls within the category of a corporation
operating a railroad propelled by steam or electricity nor does it seem to
us that it is an electric or water power company nor can we gather from
any information before us that it falls within any category of a construc-tion
company, manufacturing company or motor vehicle carrier. It seems
to us that the issuance of a commission to these men as police officers is
rather serious and particular business, in as much as these men or one of
them might kill some individual in the performance of his duties. In such
event, it would be highly important that his commission be legal and valid
to the end that he might have the protection afforded a police officer in a
criminal prosecution. At the present time, this office has grave doubts that
Government Services, Inc. is such a type of company as fixed by our statute
which would authorize the Governor of our State to issue a commission to
any of its employees as special or company police. Under present informa-tion,
we would advise that such commissions should not be issued. We are,
of course, greatly in sympathy with the work that Government Services,
Inc. intends to pursue in our State, and I am sure that we all wish to be of
assistance in any way possible. We would suggest that the problem could
be solved by having the sheriff of the county appoint these men as deputy
sheriffs instead of seeking a commission as special police from the office of
the Governor.
If Government Services, Inc. cares to furnish further information as
to their powers and objectives which will bring them within the category
of corporations set forth in our statute which authorizes the Governor to
issue such commissions, then this office will be glad to reconsider this in-terpretation.
Schools; Lunch Programs; Public Schools; Nonprofit Private Schools
27 June, 1946,
You forwarded to me a letter from Honorable Clinton Anderson, Secre-tary
of the United States Department of Agriculture, relating to "The Na-tional
School Lunch Act," as provided by H. R. 3370, and request my opinion
on the following questions
:
"1. Has the State educational agency in your State the legal author-ity
and the staff to administer a Statewide school lunch program in
accordance with the provisions of H. R. 3370? If not, will you please in-dicate
what agency or agencies you will designate in its stead.
28] BIENNIAL REPORT OF THE ATTORNEY GENERAL 43
"2. May the State educational agency legally disburse funds to non-profit
private schools?"
As to the first question, Chapter 777 of the Sessions Laws of 1945 (Sec-tion
115-25.1 of the General Statutes) fully recognizes the authority of the
State Board of Education to accept and administer Federal funds and sur-plus
commodities furnished by the Federal Government in grants to provide
wholesome and nutritious lunches for the school children of the State. This
statute fully authorizes the State Board of Education to cooperate with the
Federal authorities, even to advancing certain funds to administrative school
units to assist them to fully take advantage of the program.
I am of the opinion that the second question may be answered in the affir-mative,
in view of Section 143-164 of the General Statutes, which reads as
follows
:
"Accepta7ice of Federal loans and gra^its permitted.— The said State
of North Carolina, and it several departments, institutions, agencies
and commissions, are hereby authorized to accept and receive loans,
grants, and other assistance from the United States Government, de-partments
and/or agencies thereof, for its use, and to receive like finan-cial
and other aid from other agencies in carrying out any undertaking
which has been authorized by the Governor of North Carolina, with the
approval of the Council of State."
I am of the opinion that the Governor and Council of State may authorize
the State Board of Education to accept and administer funds from the
Federal Government in connection with "The National School Lunch Act,"
to nonprofit private schools.
OPINIONS TO SECRETARY OF STATE
Corporations; Name; Use of "United States" and
"Reserve" as Part of Corporate Name
29 July, 1944
You have requested an opinion as to w^hether a corporation may be charted
under the name of "United States Reserve Credit Corporation."
You delivered to me the proposed charter which shows the objects for
which the corporation is to be formed. If I properly interpret this portion
of the proposed charter, the use of the terms "United States" and "reserve"
is prohibited by Federal statute. Section 585, Title 12, USCA, reads in part
as follows:
"No bank, banking association, trust company, corporation, asso-ciation,
firm, partnership, or person engaged in the banking, loan, build-ing
and loan, brokerage, factorage, insurance, indemnity, or trust busi-ness
shall use the word 'Federal,' the words 'United States,' the words
'Deposit Insurance,' or the word 'reserve,' or any combination of such
words, as a portion of its corporate, firm, or trade name or title or of
the name under which it does business: . . ."
It is entirely possible that this corporation, if organized, would be conduct-ing
a brokerage. If this is true, the use of the term "United States" as
part of its corporate name is prohibited by Section 583 of Title 12, USCA.
The pertinent provision of that section reads as follows:
"The use of the word 'national,' the word 'Federal' or the words
'United States,' separately, in any combination thereof, or in combina-tion
with other words or syllables, as part of the name or title used by
any person, corporation, firm, partnership, business trust, association
or other business entity, doing the business of bankers, brokers, or trust
or savings institutions is prohibited except where such institution is
organized under the laws of the United States, or is otherwise permitted
by the laws of the United States to use such name or title, or is lawfully
using such name or title on August 23, 1935; . . ."
Of course, if a corporation does not propose to do, and is not organized
to do, any of the types of business named in the above section, an entirely
different problem would be presented.
State Lands; Entries; Description; Issuance of Grant '
25 August, 1944
Receipt is acknowledged of your letter of August 18 enclosing papers
relative to an entry covering certain lands in Swain County, North Carolina.
Your first question is whether the land covered by the entry may be
properly considered as one tract or as three separate and distinct tracts.
G. S. 146-35 provides that every county surveyor, upon receiving the copy
of the entry and order and survey for any claim of lands, shall within ninety
days lay off and survey the same agreeably to Chapter 146 of the General
Statutes, and make thereof two fair plats, the scale thereof and the number
rVOL. 28] BIENNIAL REPORT OF ATTORNEY GENERAL 45
of the entry being mentioned on such plats. This section further provides
that the surveyor shall set down in words the beginning, angles, distances,
marks and water courses and other remarkable places crossed or touched by
or near to the lines of such lands and also the quantity of acres. G. S. 146-
36 provides that the surveyor shall within one year transmit the plats, to-gether
with the warrant or order of survey, to the office of the Secretary
of State or deliver them to the claimant, and that the Secretary of State
shall, upon receipt of the plats, file one in his office and attach the other to
the grant.
From an inspection of the plat prepared by the County Surveyor of Swain
County and the description prepared by him, I can see no reason why you
should not accept the same as submitted and proceed to issue the grant, if
the other provisions of the law have been complied with. I am inclined to
the view that the question as to whether the property sought to be acquired
should be described as one tract rather than three tracts should be one to be
determined by the County Surveyor who makes the survey and prepares the
plat.
Your second question is whether there must be a separate entry for each
grant issued by the Secretary of State.
From an inspection of the statutes relating to entries and grants, it is my
opinion that there must be a separate entry for each grant issued by the
Secretary of State. G. S. 146-47 specifically provides that the date of the
entry and the number of the survey from the certificate of survey upon
which the grant is founded shall be inserted in the grant. You will note
that this particular section seems to contemplate only one entry in a grant.
There are various other provisions contained in the statutes governing
entries and grants which seem to bear out the conclusion reached above.
Commissioner of Affidavits; Oath; Before Whom Taken
26 August, 1944
Mr. Abernethy inquired of me over the telephone to determine whether
a commissioner of affidavits appointed by the Governor by authority of G. S.
3-1 would have to take and subscribe an oath before a Justice of the Peace
in the county or city in which he resides, or would it be sufficient if the com-missioner
took the required oath before a Notary Public or other officer who,
under the laws of the state in which the commissioner resides, is authorized
to administer an oath.
It is my opinion that the provisions of the statute, G. S. 3-1, requiring a
commissioner of affidavits to take and subscribe an oath before a Justice of
the Peace would not exclude the validity of an oath taken befoi-e a Notary
Public or other officer qualified under the law of the state of residence of the
commissioner. It is my opinion that the taking of an oath before a duly
authorized officer of the state of residence would meet the requirements of
our statute and, when these commissioners have been certified by your office
in accordance with Chapter 3 of the General Statutes, they would be duly
• authorized to perform the duties authorized by law.
46 biennial report of the attorney general [vol.
Solicitors; Secretary of State; Distribution of State
Publications; Ownership of Books
22 June, 1945
You have inquired whether the State publications distributed to Superior
Court Solicitors pursuant to G. S. 147-45 remain the property of the State
and are to be turned over to the Solicitor's successor in office, or whether
they become the private property of the Solicitor, thus making it necessary
for a new Solicitor to receive a complete set of publications from your office.
G. S. 147-45 provides that the Secretary of State shall, at the State's
expense, distribute to the Solicitors of the Superior Courts one volume of
the Session Laws and one volume of the North Carolina Reports, as the
same are printed. In my opinion, it was the intent of the law that the
publications so distributed should remain the property of the State. In
other words, the books belong to the office and not to the individual. Thus,
when publications have been distributed to a Solicitor who dies or goes out
of office, his successor is entitled to have these books turned over to him
upon being inducted into office.
This construction is buttressed by that portion of G. S. 147-45 which pro-vides
that Justices of the Supreme Court may retain the Reports furnished
them to enable them to keep up-to-date their personal sets of Reports. Thus,
the Legislature felt it necessary to specifically provide that Justices could
retain their copies of the Reports. No such provision appears as to Solicitors.
Therefore, I am of the opinion that the publications distributed to Solici-tors
do not become the private property of the person holding the office of
Solicitor.
Foreign Corporations; Domestication; Incidental Agreement to
Install Article Sold in Interstate Commerce
Not "Doing Business"
12 December, 1945
You have referred to me a letter from the Henszey Company of Water-town,
Wisconsin, and you request that I give you my opinion as to whether
such corporation is doing business within this State so as to be required to
domesticate under the provisions of Section 55-118 of the General Statutes.
It appears that the business of the corporation consists of selling equip-ment
such as evaporating plants for evaporated milk. The general manager
states that due to the peculiar nature of xhe product sold, it is necessary
that the corporation supervise the installation work. In the installation
work local labor is employed. However, all equipment is manufactured
in its factory and all sales orders are accepted there.
On the basis of these facts, it is my opinion that the Henszey Company,
which is a foreign corporation, is under no obligation to domesticate in this
State since, in selling and installing such equipment, it is engaged exclusive-ly
in interstate commerce, and is not doing business within this State. An
incidental agreement to assemble a product or structure that has been sold
in interstate commerce does not destroy the nature of that commerce. YORK
MFG. CO. V. COLLEY, 247 U. S. 21.
28] BIENNIAL REPORT OF THE ATTORNEY GENERAL 47
An examination of leading cases on the subject shows that the courts have
extended the protection of the commerce clause to cover, not only a trans-action
which is purely interstate, but also one which, if viewed separately,
is unquestionably intrastate, but is, in fact, a relevant and appropriate
part of an agreement in interstate commerce. GENERAL TALKING PIC-TURES
CORP. V. SHEA, 185 Ark. 777; FURNACE CO. v. MILLER, 115
N. Y. S. 625; INTERNATIONAL FUEL SERVICE CO. v. STEARNS, 304
Pa. 157.
As stated in Prentice-Hall, STATE AND LOCAL TAX SERVICE,
Section 7377: "A foreign corporation is not 'doing business' within a state
when it agrees to assemble and install therein an article sold by it in inter-state
commerce when the nature of the article is such that it can be properly
or efficiently installed or assembled only under the supervision of trained
technical experts not ordinarily to be found within the state. . . ."
If, however, the installation of an article or structure is not a mere inci-dent
to the interstate contract, but is a distinct and separate activity, the
corporation in making such installation would be considered to be doing
business within the state. BROWNING v. CITY OF WAYCROSS, 233
U. S. 16; GENERAL HIGHWAYS SYSTEM v. DENNIS, 251 Mich. 152.
It appears from the facts stated in the letter from the Henszey Company
that the supervision of trained experts, not to be found within this state, is
required in making installations of its products. If this is true, such
installation work is relevant and appropriate to the interstate sale of the
product; and, therefore, such corporation in performing such installation
work is not doing business within this State.
Corporations; Operating Under Assumed Name
30 May, 1946
I received your letter of May 14, enclosing a letter to you from Mr. W. W.
Cohoon, Attorney at Law of Elizabeth City, North Carolina, about which
you requested my opinion.
Mr. Cohoon wanted to know whether or not a North Carolina corporation
would have a right to do business under an assumed name; that is, a name
other than its corporate name, which assumed name did not contain the
word "Incorporated" or "Inc." provided he registered same in the clerk's
office pursuant to Section 59-87 of the General Statutes, and provided fur-ther
that the name of the corporation is painted upon the door of its princi-pal
place of business as required by law.
I agree with Mr. Cohoon, after making an investigation, that the decisions
in this State are silent on this subject and no case involving this question,
so far as my investigation reveals, has been passed upon by our Supreme
Court.
The general law on this subject seems to be that, in the absence of a
statute to the contrary, a corporation may do business under a name other
than the name fixed by its charter; in other words, under an assumed name.
See 18 C.J.S., title CORPORATIONS, Section 166, page 561; 13 AM. JUR.,
title CORPORATIONS, Section 132, page 270; 56 A.L.R. 450.
48 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 28]
I think the corporation should comply with the provisions of Article 4 of
Chapter 59 of the General Statutes as to doing business under an assumed
name, although G. S. 59-87 provides that this article shall in no way affect
or apply to any corporation created and organized under the laws of this
State, or to any corporation organized under the laws of any other state
and lawfully doing business in this State.
This may be interpreted as meaning only that a coi'poration, which by its
charter assumes a name, would not have to comply with that article, but if
it did business under some name other than its charter name, it might have
to do so. The meaning of the statute is not certain as to this. I would,
therefore, advise a compliance with the statute if a name other than the
corporate name is to be used for carrying on business by the corporation.
OPINIONS TO STATE AUDITOR
Law Enforcement Officers' Benefit and Retirement Fund;
Payment of Benefit When Husband and Wife Have Separated
Under Deed of Separation; Charles S. Current, Deceased
11 January, 1945
I have given careful consideration to the file you turned over to me rela-tive
to the estate of Charles S. Current, Deceased. It appears that prior
to the death of Mr. Current, he and his wife entered into a separation
agreement in which she released all of her right, title, and interest in any
of his real and personal property and the question arises as to whether or
not she released her interest in his benefit and retirement fund.
Prior to the death of Mr. Current, and, I assume, at the time he became a
member of the Law Enforcement Officer's Benefit and Retirement Fund,
Mr. Current signed the usual certificate authorizing the Board of Com-missioners
of the Fund to make payment of the beneficiary and therein
name-d and agreed on behalf of himself and his heirs and assigns that
payment to the beneficiary therein named shall be a complete discharge of
the claim and shall constitute a release of the fund from any further
obligation on account of the benefit. While Mr, Current reserved the
right to name some other beneficiary in event that he should survive his
wife, by filing with the Board of Commissioners a written designation nam-ing
a new beneficiary, I assume that Mr. Current has not designated a
beneficiary other than his wife.
I am of the opinion that the deed of separation entered into by Mr. and
Mrs. Current does not have the effect of annulling Mrs. Clement's right to
the funds accrued and that she, the beneficiary named in the certificate signed
by Mr. Current, to wit, his wife, Minnie Belle Current, is entitled to the
benefits accruing because of his membership in the Law Enforcement Officers'
Benefit and Retirement Fund. I observe from the letter of Mr. Eugene
Shaw, administrator of the estate, that he does not care to seriously con-trovert
the claim of Mrs. Current.
However, in view of the fact that the administrator has notified you of
at least his interest in this fund, and Mrs. Clement has filed a claim for the
fund, it may be best for you to hold the fund until one or the other of the
parties has obtained a Court Order establishing his or her claim to the fund.
Emergency (Retired) Judges; Participation in Additional
Expense Allowance Authorized by Chapter 763,
Session Laws, 1945
24 October, 1945
I have your letter of October 20 in which you write me as follows:
"Chapter 763, Session Laws of 1945, provides an additional expense
allowance of $950.00 to all regular and special judges of the Superior
Court. Please advise if the retired judges shall be paid the additional
travel allowance under Chapter 763."
50 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
Chapter 763 of the Session Laws of 1945 reads as follows:
"That on account of the increased cost of traveling, hotel and other
expenses, the regular and special judges of the Superior Court are
hereby granted, in addition to the salary and expense allowance now
paid them, an additional expense allowance of nine hundred fifty
dollars ($950.00) per annum, payable monthly, provided such funds
shall be available after payment of teachers' and State employees'
salaries and emergency salaries under the Budget Appropriation Act
for the biennium one thousand nine hundred and forty-five - one
thousand nine hundred and forty-seven."
You will observe that the additional sum provided by this Act is for the
"regular and special judges of the Superior Court" and does not include the
retired or emergency judges and, therefore, the emergency retired judges
would not be entitled to rceive any part of this additional appropriation.
G. S. 7-50 provides that the retired emergency judges named in G. S.
7-51 shall receive their actual expenses incurred while holding any regular
or special term of court and in addition they are entitled to receive $50.00
per week to be paid by the county in which any special term is held by them.
This is doubtless the reason why the General Assembly did not see fit to
include them in the provisions of Chapter 763.
N. C. Recreation Commission; Advisory Committee;
Expenses Attending Meetings of Commission
30 October, 1945
I have your letter of October 29 in which you write me as follows:
"Please advise if the Advisory Committee to the North Carolina
Recreation Commission (Chap. 757, P. L. 1945, Sec. 6) are entitled
to be reimbursed for their travel expenses incident to attending meet-ings
with the Commission."
Chapter 757, creating the State Recreation Commission, Section 6, states
that the Governor shall name a Recreation Advisory Committee consisting
of 30 members who shall serve for a term of two years. This section pro-vides
that the committee shall meet each year with the Recreation Com-mission
at a time and place to be fixed by the Governor. It further states
that members of the committee shall serve without compensation. Nothing
is said in the Act with reference to the expenses of members of the com-mittee
in attending the annual meeting which by law they are required to
attend. The Act makes an appropriation of $7,500 for carrying out its
purposes.
It is my opinion that the members of the advisory committee would be
entitled to their actual expenses in attending the annual meeting of the
Commission as necessary implication of the responsibility placed upon them
by law of attending this meeting. I believe it was the intention of the
General Assembly that out of this appropriation, their actual expenses
should be paid.
28] biennial report of the attorney general 51
State Auditor; Duty to Investigate and Report on
Claims Against the State
13 November, 1945
According to my conversation with you over the telephone, I am return-ing
to you herewith the letter from Mr. Henry Henderson under date of
November 8.
G. S. 147-58, Subsection 7, provides that it is the duty of the State Auditor
to examine and liquidate the claims of all persons against the State in cases
where there is sufficient provision of law for the payment thereof, and where
there is no sufficient provision, to examine the claim and report the fact,
with his opinion thereon, to the General Assembly.
In the case of BONER v. ADAMS, 65 N. C. 639, the Supreme Court said
that the Auditor of the State is not a mere ministerial officer. When a
claim is presented to him against the State, he is to decide whether there
is a sufficient provision of law for its payment, and if in his opinion there
is not sufficient provision of law, he must examine the claim and report the
fact, with his opinion, to the General Assembly. There may be some ques-tion
as to whether or not this statute was intended to embrace a claim of
damages sounding in tort, but the statute does not make any distinction
between contract and tort claims.
The Supreme Court is construing the constitutional provision authorizing
it to hear claims against the State, Constitution, Article IV, Section 9, has
held that it would dismiss any claim where the sole question was one of
fact, LACY V. STATE, 195 N. C. 284. See other cases cited in the annota-tion
under this constitutional provision.
Law Enforcement Officers' Benefit and Retirement Fund;
Eligibility FOR Membership; Railroad Policemen;
Health Officers; Sanitary Inspectors
13 November, 1945
I acknowledge receipt of your letter in which you inquire as follows
"1. Under the original act creating the Law Enforcement