Biennial report of the Attorney-General of the State of North Carolina |
Previous | 23 of 36 | Next |
|
small (250x250 max)
medium (500x500 max)
Large
Extra Large
large ( > 500x500)
Full Resolution
|
This page
All
|
-
505127.pdf
[47.90 MB]
Link will provide options to open or save document.
File Format:
Adobe Reader
Cbe iLIHtatp ott^e OnttietjSttp of n^ortb CatoUna Collection of Mott^ Catoltniana f^W iioofc b)a0 ptt^enUti _ ftp C3A-0 UNIVERSITY OF N.C. AT CHAPEL HILL 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
Object Description
Description
Title | Biennial report of the Attorney-General of the State of North Carolina |
Other Title | Biennial report and opinions of the Attorney General, State of North Carolina |
Contributor | North Carolina. Department of Justice. |
Date | 1944; 1945; 1946 |
Subjects |
Attorneys general's opinions--North Carolina Automobiles--Transportation--Law and legislation Banking law--North Carolina Children Corporations--North Carolina Criminal law Education Election law Game laws Genealogy Judicial statistics--North Carolina Insurance Liquor laws Local government Public health Public officers--North Carolina Schools Taxation--Law and legislation |
Place | North Carolina, United States |
Time Period | (1945-1989) Post War/Cold War period |
Description | Title varies slightly.; Report period irregular.; On July 1, 1939 the Attorney General became head of the newly created Dept. of Justice. |
Publisher | Raleigh :N.C. Dept. of Justice,1899-[1970](Guy V. Barnes, printer to Governor's Council) |
Agency-Current | North Carolina Department of Justice |
Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
Physical Characteristics | 37 v. ;23 cm. |
Collection | Health Sciences Library. University of North Carolina at Chapel Hill |
Type | text |
Language | English |
Format | Reports |
Digital Characteristics-A | 49054 KB; 884 p. |
Digital Collection |
Ensuring Democracy through Digital Access, a North Carolina LSTA-funded grant project North Carolina Digital State Documents Collection |
Digital Format | application/pdf |
Title Replaced By | North Carolina..Department of Justice..North Carolina Attorney General reports**0364-362X |
Title Replaces | North Carolina.Department of Justice..Attorney General's report |
Audience | All |
Pres File Name-M | pubs_edp_biennialreportattorneygeneral19441946.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_edp\images_master\ |
Full Text | Cbe iLIHtatp ott^e OnttietjSttp of n^ortb CatoUna Collection of Mott^ Catoltniana f^W iioofc b)a0 ptt^enUti _ ftp C3A-0 UNIVERSITY OF N.C. AT CHAPEL HILL 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 |
OCLC Number-Original | 5792362 |