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FOR USE ONLY IN
THE NORTH CAROLINA COLLECTION
BIENNIAL REPORT
OF THE
ATTORNEY GENERAL
OF THE
STATE OF NORTH CAROLINA
1926-1928
DENNIS G. BRUMMITT
ATTORNEY GENERAL
FRANK NASH
CHARLES ROSS
JOHN H. HARWOOD*
WALTER D. SILER
ASSISTANT ATTORNEYS GENERAL
•Succeeded by Walter D. Siler, October 8, 1927
LIST OF ATTORNEYS GENERAL SINCE THE ADOPTION OF
THE CONSTITUTION IN 1776
to
Term of Office
Avery, Waightstill 1777-1779
Iredell, James _ 1779-1782
Moore, Alfred- 1782-1790
Haywood, J. Jolui .-- -- 1791-1794
Baker, Blake - 1794-1803
Seawell, Henry 1803-1808
Fitts. Oliver 1808-1810
Miller, William 1810-1810
Burton, Hutchins G 1810-1816
Drew, William 1816-1825
Taylor, James F- '. 1825-1828
Jones, Robert 1*^. .'. 1828-1828
Saimders, Romulus M 1828-1834
Daniel, John R. J 1834-1840
McQueen, Hugh 1840-1842
Wihitaker, Spier 1842-1846
Stanly, Edward 1846-1848
Moore, Bartholomew F 1848-1851
Eaton, William 1851-1852
Ransom, Matt. W 1852-1855
Batchelor, Joseph B 1855-1856
Bailey, William H 1856-1856
Jenkins, William A 1856-1862
Rogers, Sion H 1862-1868
Coleman, William M 1868-1869
Olds, Lewis P 1869-1870
Shipp, William M 1870-1872
Hargrove. Tazewell L 1872-1876
Kenan, Thomas S 1876-1884
Davidson, Theodore F -- 1884-1892
Osborne, Frank I 1892-1896
Walser, Zeb V 1896-1900
Douglas, Robert D 1900-1901
Gilmer, Robert D 1901-1908
Bickett, T. W 1909-1916
Manning, James S 1917-1925
Brummitt, Dennis G 1925-
Digitized by the Internet Archive
in 2011 with funding from
Ensuring Democracy through Digital Access (NC-LSTA)
http://www.archive.org/details/biennialrep1926attrny1928
LETTER OF TRANSMITTAL
State of North Carolina,
Department of Attorney General,
Raleigh, Novembei- 10, 1928.
To His Excellency, Angus W. McLean, Governor,
Raleigh, N. C.
Dear Sir.-—In compliance with sections 609S-6099, Consolidated Statutes,
1919, I herewith submit the biennial report of this department for the years
1926-1927 and 1927-1928.
Fi'om this report you will see something; of the enormous proportions to
which the work of this Department has grown within recent years. In 1925,
all the legal work of the State was placed in charge of this otHce.
North Carolina has grown to be a great public corporation. In the fiscal
year ending June 30, 192S, the Department of Revenue collected for all pur-poses
the sum of $32,878.4(»5.60. When called upon to do so, this Depart-ment
advises and represents all the agencies and officers of the State who
deal with the collection and expenditure oi this revenue.
An opinion of this Department is only official when it is given to some
officer, department or agency of the State government with respect to official
business. However, we endeavor to aid county and town officials in the con-struction
of statutes with respect to their duties. This latter type of work
has increased tremendously during the present administration. Only the
more important of the opinions of the Department are included in this report.
One of the most notable cases recently handled by the Department was
that of the proposed suit of the State of Connecticut against the State of
North Carolina, involving the validity of bonds issued by the reconstruc-tion
legislature. Upon presentation of the State's contentions to the authori-ties
of Connecticut, that State voluntarily withdrew its petition filed in the
Supreme Court of the I'nited States for leave to bring suit against the State
of North Carolina. With the assistance of Mr. A. R. Newsome of the His-torical
Commission, Mr. Xash made a thorough investigation of all the
facts with respect to these old instruments, and the information thus devel-oped
will be serviceable should another suit of this nature be attempted.
Under the Constitution the Attorney General is the legal advisor of the
Council of State and a member of the State Board of Education. Under
various statutes he is a member of the Board of Public Buildings and Grounds,
State Board of Pensions, Printing Commission. State Board of Assessment,
and Chairman of the Mvuiieipal Board of Control.
The Department consis.s of the Attorney General, three Assistant Attor-ney
Generals, a stenographer-secretary, and stenographer-reporter. I rec-ommend
that it be given another Assistant Attorney General, to be assigned
to the Department of Education.
I shall be glad to go fully into the work of the Department in conference
with you. Governor-elect Gardner, or any committee of the 1929 General
Assembly.
Yours very truly,
Dennis G.'Brummitt,
Attorney General.
EXHIBIT I
Civil Actions Disposed of or Pending in the Courts op North
Carolina and the Federal Courts.
Disposed of in the Superior Courts of North Carolina. '
State's Prison v. Cliife Wliitelieacl, et al.
Railways v. City of Goldsboro.
Caswell Training School v. Deitrick.
Chapman-Hunt Company v. N. C. Sanatorium.
Haines, Jones & Caclbiiry Company v. School for Blind and Deaf.
hacj, Treasurer, v. Massachusetts Bonding & Insurance Company,
et al.
State V. Western Union Telegraph Company.
State V. Postal Telegraph Company (withdrawn).
State V. Sessoms.
Pending in the Superior Courts of North Carolina.
Anderson Motor Company v. Doughton.
B. R. Lacy, State Treasurer, v. Mecklenburg Highway Com-mission.
General Motors Company v. Doughton (four cases).
Grinnan v. Caswell Training School.
State Board of Charities and Public Welfare v. Highhmd Hos-pital,
et al.
State on relation of Attorney General v. Ice Companies.
Laurel Parks Estates v. Commissioner of Revenue, et al.
Pickett and Johnson v. State Board of Education.
Hans Rees Sons, Inc., v. Commissioner of Revenue.
Haines, Jones & Cadbury Company v. State College.
State of North Carolina, ex rel., Attorney General v. Snow Hill
Railway Company, et al.
Durham Public Service Company v. Gaskill Construction Com-pany,
et al.
Metcalf V. Board of Education.
Atlantic Beach, Inc. v. Ocean Beach Co., et al.
Disposed of in the Supreme Court of North Carolina.
State's Prison v. Massachusetts Bonding & Insurance Co., et al,,
192 N. C, 391.
BIENNIAL REPORT OF THE ATTORNEY GENERAL 7
Ragaii V. Doughton, 192 N. C, 500.
Tate V. Board of Education, 192 N. C, 516.
Johnston, et al. v. Highway Commission, 192 N. C, 561.
Rich, et al. v. Doughton, 192 N. C, 604.
McKinney v. Highway Commission, 192 N. C, 670.
Carlyle v. Highway Commission, 193 ]S". C, 36.
Barton v. Grist, Commissioner, 193 N. C, 144.
Lac3% Treasurer v. Hartford Accident & Indemnity Co., et al.,
193 N. C, 179.
In Re: Revocation of License of Dr. Robert S. Carroll, 194 N.
C, 37.
Frazler v. Commissioners, 194 N. C, 49.
Newton v. Highway Commission, 194 N. C, 159.
Yadkin College v. Highway Commission, 194 N. C, 180.
Newton v. Highway Commission, 194 N. C, 303.
Smith V. Highway Commission, 194 N. C, 333.
Oliver v. Highway Commission, 194 N. C, 380.
D. C. Waddell, Jr. v. Doughton, 194 N. C, 537.
Palmer v. Highway Commission, 195 N. C, 1.
Commissioners of Wake v. Highway Commission, 195 N. C, 26.
Caldwell County v. Doughton, 195 N. C, 62.
C. W. Lacy v. State, 195 N. C, 284.
Rotan v. State, 195 N. C, 291.
Brinson, Trustee, v. Lacy, Treasurer, 195 N. C, 394.
Atlantic Life Insurance Co. v. Stacey W. Wade, Insurance Com-missioner,
195 N. C, 424.
Hass, et al. v. Hass, et al., 195 N. C, 734.
Parker v. Highway Commission, 195 X. C, 783.
Little, et al. v. Board of Adjustment, 195 N. C, 793.
Highway Commission v. Rand, 195 N. C, 799.
Hagood V. Doughton, 195 N. C, 811.
Pending in the Supreme Court op North Carolina :
Town of Greenville v. State Highway Commission.
Great Atlantic & Pacific Tea Company, et al. v. Doughton.
O'Neal V. Wake County, et al.
Mavis Bottling Company v. Doughton, Commissioner.
Garysburg Manufacturing Company v. Board of Commissioners.
Transportation Committee, etc. v. Bus Operators, etc.
State ex rel. Corporation Commission v. Railroads.
Disposed of in LTxited States Supreme Court :
Wachovia Bank & Trust Company v. Doughton, 272 U. S. 567.
8 BIENNIAL REPORT OF THE ATTORNEY GENERAL
State of Connecticut v. State of North Carolina original. (May
28, 1928, State of Connecticut allowed to withdraw its petition
after intervention of Attorney General).
Disposed op in United States District Court :
Executors of Angler B. Duke v. Doughton, (Ended by Com-promise
)
.
Pending in United States District Court :
Southern Railway Company v. State Highway Commission.
State's Prison v. Catawba Construction Company.
Pending in Circuit Court op Appeals :
State V. Southern Railway and Receiver of A. & Y. Railway
Company.
Suncrest Lumber Co. v. North Carolina Park Commission.
EXHIBIT II
List of Cases Argued by the Attorney General and Assistant
Attorney General Before the Supreme Court, Fall Term,
1926 ; Spring Term, 1927 ; Fall Term, 1927 ; Spring Term, 1928.
AUGUST TERM, 1926.
1. State V. Adams, habeas corpus ; certiorari ; affirmed.
2. State V. Barkley, from Cabarrus ; game law ; special verdict
appeal by State ; reversed.
3. State V. Boswell, from Wilson ; murder, second degree ; ver-dict,
guilty ; appeal by defendant ; new trial.
4. State V. Burgess, from Burke; assault with deadly weapon;
verdict, guilty ; appeal by defendant ; remanded.
5. State V. Church, from Catawba ; breaking-entering, larceny
;
verdict, guilty ; appeal by defendant ; affirmed.
6. State V. Crowder, from Vance; embezzlement; verdict, guilty;
appeal by defendant; new trial.
7. State V. Edwards, habeas corpus ; certiorari ; affirmed.
8. State V. Franklin, from Burke ; manslaughter ; verdict, guilty
appeal by defendant ; affirmed.
9. State V. Gray, from Stanley; murder, first degree; verdict,
guilty ; appeal by defendant ; affirmed.
10. State V. Hardy, from Durham ; murder, second degree ; ver-dict,
guilty ; appeal by defendant ; affirmed.
11. State V. Holt, from Forsyth; highway robbery; verdict,
guilty ; appeal hj defendant ; new trial.
12. State V. Hooks, from Wayne ; liquor ; verdict, guilty ; appeal
by defendant; affirmed.
13. State V. Jeffreys, from Wake ; rape ; verdict, guilty ; appeal
by defendant; affirmed.
14. State V. Jeffreys, from Johnston ; bigamy ; verdict, guilty
;
appeal by defendant ; new trial.
15. State V. Lee, et al., from Harnett ; assault with deadly
weapon; verdict, guilty; appeal by defendants, affirmed.
16. State V. Maness, from Moore; seduction; verdict, guilty;
appeal by defendant ; new trial.
17. State V. Meyers, from Sampson; liquor; verdict, guilty;
appeal by defendant; affirmed.
18. State V. Moore, from Halifax; liquor; verdict, guilty; ap-peal
by defendant; affirmed.
10 BIENNIAL REPORT OF THE ATTORNEY GENERAL
19. State V. Pace, from Cherokee; assisting prisoner to escape;
verdict, guilty; appeal by defendant; reversed.
20. State v. Pierce, from Wayne ; liquor ; verdict, guilty ; appeal
by defendant; affirmed.
21. State V. Revis, from Buncombe; assault; special verdict;
appeal by defendant ; reversed.
22. State v. Ross, from Warren; murder, first degree; verdict,
guilty; appeal by defendant; new trial.
2.3. State v. Simmons, et al., from Surry ; manslaughter ; verdict,
guilty ; appeal by defendants ; affirmed.
24. State v. Strickland, from Halifax ; assault with deadly
weapon; verdict, guilty; appeal by defendant; affirmed.
25. State v. Thompson, from Randolph; house burning; ver-dict,
guilty; appeal by defendant; affirmed.
26. State v. Tyndall, from Lenoir ; forcible trespass ; verdict,
guilty ; appeal by defendant ; affirmed.
27. State v. Waldroop, from Cherokee; manslaughter; verdict,
guilty; appeal by defendant; new trial.
Docketed and Dismissed.
28. State v. Devers, from Forsyth.
29. State v. Matthews, from Harnett.
30. State v. Fulcher, from Carteret.
31. State V. Mrs. L. B. Freeman, from Forsyth.
32. State v. Maynor and Oxendine, from Robeson.
33. State v. S. Martin, from Forsyth.
34. State v. J. Bitting, from Forsyth.
35. State v. W. Williamson, from Guilford.
36. State v. Henry Diggs, et al., from Anson.
37. State v. H. Spencer, from Anson.
38. State v. Ray Hunt, from Lee.
39. State v. Lamplin, et al., from Robeson,
40. State v. Edwards, from Greene.
FEBRUARY TERM, 1927.
41. State V. Adams, from Surry; assault with intent to rape;
verdict, guilty; appeal by defendant; new trial.
42. State v. Anderson, from Hyde; house burning; verdict,
guilty ; appeal by defendant ; affirmed,
43. State v. Aswell, et al, from Greene; prostitution; verdict,
guilty; appeal by defendants; reversed.
44. State v. Baldwin, from Durham; liquor; verdict, guilty;
appeal by defendant ; affirmed.
BIENNIAL REPORT OP THE ATTORNEY GENERAL 11
45. State v. Bazemore, from Greene; murder, first degree; ver-dict,
guilty ; appeal by defendant ; new trial.
46. State v. Blackwell, from Craven; manslaughter; verdict,
guilty; appeal by defendant; new trial.
47. State v. Branch, from Granville ; murder, second degree
;
verdict, guilty ; appeal by defendant ; affirmed.
48. State v. Brinkley, from Cabarrus ; prostitution ; verdict,
guilty ; appeal by defendant ; affirmed.
49. State v. Carnegie, from Pitt; appearance bond; reversed.
50. State v. Carpenter, from Gaston ; liquor ; verdict, guilty
;
appeal by defendant; alrtrmed.
51. State V. Colson, from Perquimans; liquor; verdict, guilty;
appeal by defendant ; new trial.
52. State v. Evans, from Pitt; involuntary manslaughter; ver-dict,
guilty ; appeal by defendant ; affirmed.
53. State v. Fleming, from Beaufort ; forcible trespass ; verdict,
guilty ; aj)peal by defendant ; affirmed.
54. State v. Fowler, from Polk; liquor: verdict, guilty; appeal
by defendant; affirmed.
55. State v. Gibson, et al., from Hoke ; secret assault ; verdict,
guiltj^ ; appeal by defendants ; affirmed.
56. State v. Green, from Wilson ; murder, first degree ; verdict,
guilty ; appeal hj defendant : new trial.
57. State v. Harris, et al., from Anson ; liquor ; verdict, guilty
appeal by defendants ; affirmed.
58. State v. Hartley, from Johnston ; habeas corpus ; certiorari
;
disallowed.
59. State v. Helms, from Union ; seduction ; verdict, guilty ; ap-peal
by defendant ; affirmed.
60. State v. Holland, from Catawba; murder, second degree;
verdict, guilty ; appeal by defendant ; new trial.
61. State V. Hunt, from Lee; liquor; verdict, guilty; appeal by
defendant ; affirmed.
62. State v. Johnson, from Mecklenburg ; murder, first degree
verdict, guilty; appeal by defendant; affirmed.
63. State v. Lee, from Harnett; murder, second degree; verdict,
guilty ; appeal by defendant ; new trial.
64. State v. Maney, from Buncombe ; simple assault ; verdict,
guilty; appeal by defendant; new trial.
65. State v. Mehafifey, et al, from Haywood ; manslaughter
verdict, guilty; appeal by defendant; new trial.
12 BIENNIAL REPORT OF THE ATTORNEY GENERAL
66. State v. Mitchell, from Chatham; murder, first degree; ver-dict,
guilty; appeal hj defendant; affirmed.
67. State v. Maragousis, from Edgecombe; embezzlement; ver-dict,
guilty; appeal by defendant; new trial.
68. State v. McWhirter, from Forsyth; assault on female; ver-dict,
guilty ; appeal by defendant ; affirmed.
69. State v. Ridings, et al., from Polk ; prostitution, etc. ; ver-dict,
guilty; appeal by defendants; affirmed.
70. State v. Sullivan, from Lenoir; kidnapping; verdict, guilty;
appeal by defendant ; new trial.
71. State V. Tomlinson, from Franklin ; seduction ; verdict,
guilty ; appeal by defendant ; affirmed.
72. State v. Walker, from Durham ; murder, first degree ; ver-dict,
guilty; appeal by defendant; affirmed.
Docketed and Dismissed.
73. State v. Williams, from Halifax.
74. State v. H. Howington, from Halifax.
75. State v. Will Mclver, from Lee.
76. State v. Wesley Baker, from Pitt.
77. State v. Wilkerson, from Pitt.
78. State v. D. T. Williams, Sr., from Lenoir.
AUGUST TERM, 1927.
79. State v. Adkins, from Yancey; manslaughter; verdict,
guilty; appeal by defendant; affirmed.
80. State v. Anderson, from Halifax ; worthless check ; verdict,
guilty; appeal by defendant; new trial.
81. State V. Earnhardt, from Cabarrus; liquor; verdict, guilty;
appeal by defendant; error; remanded.
82. State v. Blakeney, from Cabarrus ; house burning ; verdict,
guilty ; appeal by defendant ; new trial.
83. State v. Boswell, from Wilson; murder, second degree; ver-dict,
guilty; appeal by defendant; affirmed.
84. State v. Briscoe, from Gates ; liquor ; verdict, guilty ; appeal
by defendant ; affirmed.
85. State v. Colsou, from Pasquotank; assault with deadly
weapon; verdict, guilty; appeal by defendant; affirmed.
86. State v. Eubanks, from Lenoir; embezzlement; verdict,
guilty; appeal by defendant; affirmed.
87. State v. Eunice, from O'nslow; larceny; verdict, guilty; ap-peal
by defendant; new trial.
88. State v. Everett, from Cumberland ; manslaughter ; ver-dict,
guilty; appeal by defendant; reversed.
BIENNIAL REPORT OF THE ATTORNEY GENERAL 13
89. State v. Gooding, from Jones ; liquor ; verdict, guilty ; appeal
by defendant, reversed.
90. State v. Graham, from Hoke; murder, first degree; verdict,
guilty; appeal by defendant; aflSrmed.
91. State V. Guthrie, from Carteret; liquor; verdict, guilty; ap-peal
by defendant ; reversed.
92. State v. Hege, from Forsyth ; liquor ; verdict, guilty ; appeal
by defendant; affirmed.
93. State v. Hundley, et al., from Mecklenburg; municipal ordi-nance
; verdict, guilty ; appeal by defendants ; affirmed.
94. State v. Johnson, from.Hoke; abandonment; verdict, guilty;
appeal by defendant; new trial.
95. State v. Lambert, from Swain ; larceny ; verdict, guilty
;
appeal by defendant ; new trial.
96. State v. Leonard, from Cabarrus; manslaughter; verdict,
guilty; appeal by defendant; affirmed.
97. State v. Lewis, from Cabarrus ; school law ; verdict, guilty
appeal by defendant; reversed.
98. State v. Melvin, from Sampson ; murder, first degree ; verdict,
guilty ; appeal by defendant ; new trial.
99. State v. Mickle, et al., from Forsyth ; violation of automobile
law; verdict, guilty; appeal by defendants; affirmed.
100. State V. Mintz, et al., from Onslow ; larceny ; verdict, guilty
;
appeal by defendants; affirmed.
101. State V. Montague, from Buncombe ; murder, second degree
verdict, guilty; appeal by defendant; reversed.
102. State v. McFarland, from Lee; assault; verdict, guilty; ap-peal
by defendant; affirmed.
103. State v. Nance, from Forsyth; seduction; appeal by de-fendant;
new trial.
104. State v. Perry, from Lenoir; liquor; appeal withdrawn.
105. State v. Pridgen, from Greene; liquor; verdict, guilty; ap-peal
by defendant; affirmed.
106. State v. Rouse, from Lenoir ; larceny ; verdict, guilty ; ap-peal
by defendant ; new trial.
107. State v. Schlicter, from Halifax ; violating banking laws
certiorari ; reversed.
108. State v. Shew, from Wilkes ; larceny ; verdict, guilty ; ap-peal
by defendant ; new trial.
109. State v. Wadford, from Lenoir; embezzlement; verdict,
guilty ; a]3peal by defendant ; new trial.
14 BIENNIAL REPORT OF THE ATTORNEY GENERAL
110. State V. Waldroop, from Cherokee ; murder, second degree
;
verdict, guilty; appeal by defendant; affirmed.
111. State V. Winston, from Halifax; liquor; special verdict;
appeal by State; reversed.
112. State V. Yarboro, from Halifax; worthless check; arrested
judgment ; appeal by State ; reversed.
Docketed and Dismissed.
113. State V. Taylor, from Pitt.
114. State V. Brooks, from Pitt.
115. State V. Massengill, from Wake.
116. State V. Charlie Imbler, from Davidson.
117. State V. Eoy Davis, from Mecklenburg.
118. State v. Sam Angel, from Yancey.
119. State V. W. A. Smith, from Cherokee.
120. State v. Will Taylor, from Gaston.
121. State V. Sherman Haney, from Haywood.
122. State v. R. and A. Jackson, from Haj^wood.
FEBRUARY TERM, 1928.
123. State v. Boswell, et al., from Guilford; robbery; verdict,
guilty; appeal by defendants; affirmed.
124. State v. Charles, from Forsyth; larceny and receiving; ver-dict,
guilty ; appeal by defendant ; affirmed.
125. State v. Crowder, from Vance; embezzlement; verdict,
guilty ; appeal by defendant ; appeal dismissed.
126. State v. Deadmon, from Davie; house burning; verdict,
guilty ; appeal by defendant ; new trial.
127. State v. Dowell, from Forsyth; liquor; verdict, guilty; ap-peal
by defendant ; affirmed.
128. State v. Edwards, from Lenoir; liquor; verdict, guilty;
appeal by defendant; affirmed.
129. State v. Garland, from Yancey; manslaughter; verdict,
guilty ; appeal by defendant ; affirmed.
130. State v. Gerukus, from Mecklenburg; criminal abortion;
verdict, guilty ; appeal by defendant ; affirmed.
131. State V. Gill, from Wake; municipal ordinance; verdict,
guilty; appeal by defendant; affirmed.
132. State v. Harris, from Greene ; larceny ; verdict, guilty ; ap-peal
by defendant; reversed.
133. State v. Holt, from Johnston; liquor; verdict, guilty; ap-peal
by defendant; affirmed.
BIENNIAL REPORT OF THE ATTORNEY GENERAL 15
134. State v. Idol, from Guilford; liquor; verdict, guilty; ap-peal
by defendant ; new trial.
135. State v. Jarman, from Lenoir; liquor; verdict, guilty; ap-peal
by defendant; affirmed.
136. State v. Jenkins, from Graham ; assault with deadly
weapon ; verdict, guilty ; appeal by defendant ; new trial.
137. State v. Johnson, from Davidson; false pretense; verdict,
guilty ; appeal by defendant ; new trial.
138. State v. Johnson, from Kutherford ; liquor ; verdict, guilty
;
appeal by defendant; new trial.
139. State v. King, from Lincoln ; larceny and receiving ; verdict,
guilty; appeal by defendant; affirmed.
140. State v. Maslin, from Forsyth; embezzlement; verdict,
guilty ; appeal by defendant ; affirmed.
141. State V. McCall, from Buncombe ; larceny ; verdict, guilty
;
appeal by defendant; new trial.
142. State v. McLawhorn, et al., from Pitt; liquor; verdict,
guilty; appeal by defendants; affirmed.
143. State v. Newsome, from Wayne; murder, first degree; ver-dict,
guilty ; appeal by defendant ; new trial.
144. State v. Ray, et al., from Yancey; murder, second degree;
verdict, guilty; appeal by defendants; new trial.
145. State v. Ray, from Yancey; non-support; verdict, guilty;
appeal by defendant ; new trial.
146. State v. Toler, from Caswell; manslaughter; verdict,
guilty; appeal by defendant; new trial.
147. State v. "Whittle from Catawba; liquor; verdict, guilty;
appeal by defendant; affirmed.
Docketed and Dismissed.
148. State v. Alston, from Chatham.
149. State v. Gardner, from Pitt.
150. State v. Thaxton, from Lenoir.
151. State V. F. McLamb, from Johnston.
152. State v. J. H. Holt, from Johnston.
153. State v. Osborne, from Lenoir.
154. State v. Garfield Jones, from Craven.
155 .State v. Powell, from Wake.
156. State v. Wellington, from Lenoir.
157. State v. Newkirk, from Columbus.
158. State v. Thomas, from Forsyth.
159. State v. W. O. Hicks, from Davidson.
160. State v. Coffer, from Stokes.
16 BIENNIAL REPORT OP THE ATTORNEY GENERAL
161. State V. Clyburn, from Mecklenburg.
162. State v. French, et al., from Henderson.
163. State v. Gasperson, from Buncombe.
164. State v. Jim Bell, from Cherokee.
165. State v. Sibbold Smith, from Swain.
SUMMAKY OF CASES.
Affirmed on Defendant's Appeal 57
New trial or reversed on Defendant's Appeal 48
Reversed on State's Appeal 3
Remanded on Defendant's Appeal 1
Appeal by Bondsman — 1
Appeal withdrawn -. 1
Remanded for judgment - 2
Certiorari 4
Appeal dismissed 48
Total 165
BIENNIAL REPORT OF THE ATTORNEY GENERAL 17
CRIMINAL STATISTICS
STATEMENT A
The Following Statement Shows the Criminal Cases Disposed of During the
Fall Term, 1926, and Spring Term, 1927.
Counties «
2^
-a
"o O
a
S
'•V
a
E
oO
'3
co
<
oM
P,
"o
.2 "^
u o
o
3l o o
H O
Alamance 42 25 65 2 34 7 23 3 67
34
18
5 37
18
2 39
15
39
Alleghany
Anson
3 18
117 268 369 16 251 26 106 2 385
54
103
52
98
2
9
49
69
5
9
54
Avery 4 28 1 107
Beaufort 27 23 48 2 36 7 7 50
Bertie 23 100 114 9 68 27 25 3 123
Bladen 14
22
403
11
15
167
24
36
521
1
1
49
25
26
327
25
11
59
37
Buncombe 183 1 570
Burke 159 26 175 10 113 9 59 4 185
Cabarrus 78 47 115 10 68 15 42 125
Caldwell 173 29 194 8 106 19 74 3 202
4
50
9
2
38
5
6
85
14
3
4
88
10
2 6
88
Caswell 3 1 14
Catawba 93 25 114 4 90 10 18 118
Chatham 94 84 173 5 148 8 22 178
Cherokee 44 3 43 4 28 15 2 2 47
Chowan 22 17 39 31 3 4 1 39
Clay
Cleveland
77 73 4 50 8 18 1 77
102 30 116 16 57 14 56 5 132
Columbus 121 64 181 4 125 29 25 6 185
Craven 42 44 85 1 61 13 12 86
Cumberland 54 54 1 97 12 70 18 21 109
Currituck 2
3
134
7
3
51
8
4
173
1
2
12
9
1
157
9
8
5
16 4
6
Davidson 185
Davie 37 9 44 2 32 12 2 46
Duplin 111 102 4 195 22 149 29 36 3 217
Durham 185 217 363 39 265 48 86 3 402
Edgecombe 41 92 127 6 98 17 17 1 133
Forsyth 360 185 502 43 462 60 22 1 545
Franklin 55 31 84 2 58 24 4 86
Gaston 274 97 352 19 241 32 96 2 371
Gates 30 27 55 2 41 10 6 57
Graham 40 1 39 2 27 5 9 41
Granville* 61 77 134 4 111 8 20 139
Greene 17 39 56 45 5 6 56
Guilford 272 189 439 22 377 41 41 2 461
Halifax 104 205 297 12 218 34 57 309
Harnett 116 37 148 5 103 11 36 3 153
Haywood 91 7 93 5 43 13 41 1 98
Henderson 71 32 98 5 73 6 22 2 103
Hertford 41 70 103 8 70 21 20 111
Hoke-. 16
3
19
12
34
15
1 13
11
7
• 4
12 3 35
Hyde 15
*1 Corporation
18 BIENNIAL REPORT OF THE ATTORNEY GENERAL
STATEMENT A—Continued
Counties
01
73
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Iredell 35 13 44 4 32 15 1 48
Jackson 35 4 38 1 27 4 8 39
Johnston _ 74
43
32
40
95
81
11
2
89
60
17
1
106
Jones 21 1 83
87
117
72
90
157
187
2
20
118
153
9
26
30
28
2 159
Lenoir 207
Lincoln.. 104 17 117 4 77 17 27 121
Macon 145 10 151 4 96 20 39 155
Madison 90 7 93 4 73 8 16 97
Martin 15 21 34 2 34 2 36
McDowell 171 14 164 21 121 10 51 3 185
Mecklenburg*.
Mitchell... ..
416
59
78
38
387 720
57
109
61
83
2
4
502
37
39
28
65
8
12
11
232
14
61
22
5
1
804
59
Montgomery..
Moore
35
23
113
61
Nash-- 62
77
83
97
134
156
11
18
90
137
13
26
42
9 2
145
New Hanover. 174
Northampton _
Onslow
47
74
82
39
125
110
4
3
78
76
18
25
33
6 6
129
113
Orange*
Pamlico
116
46
101
29
201
71
16
4
146
47
25
6
43
22
4 218
75
Pasquotank
Pender
20
33
16
45
35
75
1
3
23
54
6
16
6
8
1 36
78
Perquimans 42 55 94 3 60 14 20 3 97
Person 101 61 159 3 132 8 22 162
Pitt 84
124
63
47
145
162
2
9
109
115
31
27
7
26 3
147
Polk 171
Randolph
Richmond
216
89
33
60
236
141
13
8
100
105
3
9
144
29
2
6
249
149
Robeson 87 52 46 176 9 125 18 42 185
Rockingham ._
Rowan
22
30
22
30
43
59
1
I
42
54 3
2
3
44
60
34
122
27
16
120
30
"""2'
2
47
233
57
3
11
2
43
181
36
7
53
12
50
Sampson
Scotland
10
11
244
59
Stanly
Stokes
18
41
10
26
25
65
3
2
23
62
1
2
3
3
1 28
67
Surry
Swain
144
84
11
7 14
147
101
8
4
114
81
13
23
25
1
3 155
105
Transylvania-
_
Tyrrell
Union
66
6
28
9
2
18
70
8
42
5
4
74
3
37
1
5
1
3
3
1
1
75
8
46
Vance 93 51 133 11 85 34 25 144
Wake 397 378 735 40 520 124 125 6 775
Warren 33 37 69 1 40 13 16 1 70
Washington
Watauga
Wayne
Wilkes
8
89
47
261
8
4
68
18
1
13
89
115
249
3
4
1
30
8
47
111
137
8
9
1
23
16
37
3
117
1
2
93
116
279
Wilson
Yadkin
182
71
170
5
296
76
56 184
59
44
1
120
16
4 352
76
Yancey 73 2 69 6 29 7 39 75
Totals 8,644 5,265 70 13,124 855 9,445 1,552 2,868 117 13,982
*1 Corporation.
BIENNIAL REPORT OF THE ATTORNEY GENERAL 19
Recapitulation of Statement A
Total Number Criminal Actions Disposed of 13,982
Males- 13,124
855
3
Total 13,982
White . 8,644
5,265
70
3
Total - 13 , 982
Convictions, including 9,445
1,552
2,868
117
Acquitted. _ _
Nolle pros . _ _ _
Otherwise disposed of
Total - 13,982
20 BIENNIAL REPORT OF THE ATTORNEY GENERAL
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Tyrrell
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---
Warren
Wasiiington
Watauga
Wayne Wilkes.. Wilson
Yadkin
Yancey
3
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36 BIENNIAL REPORT OP THE ATTORNEY GENERAL
STATEMENT C
The Following Statement Shows the Criminal Cases Disposed of During the
Fall Term, 1927, and Spring Term, 1928.
Counties
(0
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Alamance 54 23 76 1 47 4 26 77
Alexander 96 10 104 2 79 3 24 106
Alleghany 21 2 23 19 3 1 23
Anson 89 197 274 12 205 16 60 5 286
Ashe- 87
69
32
29
1
3
15
101
82
67
45
122
6
5
2
8
88
60
45
89
88
Avery 12
2
22
72
Beaufort 47
Bertie 19 130
Bladen 7 6 13 12 1 13
Brunswiclv 42
472
17
211 1
56
612
3
72
43
585
16
48
59
Buncombe* 49 3 685
Burke 94 18 111 1 103 3 6 112
Cabarrus 139 67 202 4 151 10 44 1 206
Caldwell 198 40 232 6 178 25 34 1 238
Camden 5
51
3
30
8
78 3
8
76
8
Carteret 4 1 81
Caswell-- - - 10
144
9
29
19
164 9
15
130
4
12
19
Catawba 30 1 173
Chatham 72 68 137 3 113 9 17 1 140
Cherokee 143 7 142 8 100 48 1 1 150
Chowan 5 5 9 1 9 1 10
Clay 43
66
5
36
46
96
2
6
37
57
11
18
48
Cleveland 24 3 102
Columbus 65 26 86 5 63 10 17 1 91
Craven 38 77 107 8 93 14 8 115
Cumberland- -- 84 52 121 15 75 16 45 t 136
3
14
186
1
1
45
4
15
220 11
4
11
178
4
4
32
15
Davidson 21 231
Davie 73 24 89 8 75 14 8 97
Duplin 162 233 360 35 273 38 80 4 395
Durham 216 291 467 40 361 57 84 5 507
Edgecombe 34 113 141 6 96 27 24 147
Forsyth 374 230 555 49 589 14 1 604
Franklin 65 25 78 2 58 11 10 1 80
Gaston 260 59 302 17 202 32 80 5 319
Gates 45 33 77 1 51 7 19 1 78
Graham 54 1 1 54 2 21 6 29 56
Granville 38 84 120 2 108 6 8 122
Greene 24 47 67 4 51 IS 2 71
Guilford 333 166 473 26 406 47 44 2 499
Halifax 149 184 326 7 238 44 50 1 333
Harnett 65 42 1 98 10 66 13 27 2 108
Haywood 199 21 195 25 91 40 87 2 220
Henderson 60 33 86 7 57 19 16 1 93
Hertford 35 63 96 2 62 18 18 98
Hoke 15 13 28 25 2 1 28
Hyde 5 27 30 2 31 1 32
Iredell 45 23 64 4 46 7 15 68
Jackson 55 2 56 1 29 8 20 57
*1 Corporation.
BIENNIAL REPORT OF THE ATTORNEY GENERAL 37
Counties
STATEMENT C—Continued
O P H U
Johnston
Jones
Lee
Lenoir
Lincoln
Macon
Madison
Martin
McDowell
Mecklenburg..
Mitchell
Montgomery, _
Moore
Nash
New Hanover,
Northampton .
Onslow
Orange
Pamlico
Pasquotank
Pender
Perquimans
Person
Pitt
Polk
Randolph
Richmond
Robeson
Rockingham ,.
Rowan
Rutherford
Sampson
Scotland
Stanly
Stokes
Surry
Swain ^
Transylvania,
-
Tyrrell
Union
Vance
Wake
Warren
Washington
Watauga
Wayne
Wilkes
Wilson
Yadkin
Yancey
79
22
68
136
48
163
134
9
251
427
62
70
33
84
75
29
38
100
42
20
24
11
92
68
93
319
101
145
79
57
52
141
73
20
121
190
158
74
3
22
86
424
20
3
102
17
380
116
79
69
38
22
92
125
17
5
3
20
33
388
34
12
72
123
78
45
78
57
17
34
22
58
113
29
67
83
86
27
30
7
143
35
15
25
15
6
16
3
36
46
376
36
15
3
49
28
144
111
44
152
225
63
165
132
29
267
718
59
100
45
157
175
102
80
171
99
37
54
31
146
173
112
363
178
274
104
83
58
262
107
31
143
198
173
57
128
758
53
18
100
64
371
226
82
76'
36
2
3
5
17
97
3
4
23
5
3
7
10
23
6
12
2
4
1
23
4
4
3
7
8
1
4
42
3
2
37
34
4
1
116
31
130
187
42
94
97
24
179
462
38
68
26
SO
131
61
67
138
58
29
34
18
118
154
74
263
130
168
78
70
48
208
77
27
128
156
127
67
3
42
94
469
36
14
83
66
238
120
83
39
12
13
36
14
14
12
4
29
77
5
6
7
22
67
17
16
16
21
6
9
4
12
20
19
18
15
32
13
4
10
56
14
6
9
22
23
10
18
120
12
4
4
27
36
3
17
1
17
37
9
60
27
1
73
261
19
30
12
57
29
24
15
2
14
11
21
7
29
100
37
85
15
. 13
21
20
27
31
23
3
6
20
215
142
103
117
44
160
261
65
168
137
29
284
815
62
104
45
159
198
107
83
178
99
37
58
33
151
181
122
386
184
286
103
87
59
285
111
35
146
205
181
90
6
58
132
803
56
18
105
66
408
260
86
77
Totals- 5,640 83 14,475 931 10,889 1,706 2,722 90 15,407
38 BIENNIAL REPORT OF THE ATTORNEY GENERAL
Recapitulation of Statement C
Total Ntjmber Criminal Actions Disposed of. _. -_ 15,407
Males .- - . - - - . - - - _ . 14,475
931
1
Total -- - _ _ . . - 15 , 407
White 9,683
5,640
83
1
Total - . -- - --- - 15,407
10,889
1,706
2,722
90
Total..- ... ... .. . _. ... . . 15,407
BIENNIAL REPORT OF THE ATTORNEY GENERAL 39
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BIENNIAL REPORT OF THE ATTORNEY GENERAL 55
STATEMENT E
Number of criminal actions disposed of
Males
Females
Corporations
Total
White
Colored
Indian
Corporations
Total. -
Convictions, including submissions
Acquitted
Nolle pros
Otherwise disposed of
Total..
Murder—first degree
Murder—second degree
Manslaughter
Rape
Assault with intent to commit rape
Arson
Burglary—first degree
Burglary—second degree
Forgery
Larceny
Intoxicating liquors
Other crimes and misdemeanors
Total
From
July 1, 1926
to
July 1, 1927
13,124
855
3
8,644
5,265
70
3
9,445
1,552
2,868
117
4
227
123
13
41
18
1
42
325
2,375
4,288
6,525
13,982
13,982
13,982
13,982
From
July 1, 1927
to
July 1, 1928
14,475
931
1
9,683
5,640
83
1
10,889
1,706
2,722
90
5
243
173
14
66
22
76
284
2,584
4,771
7,169
15,407
15,407
15,407
15,407
56 BIENNIAL REPORT OP THE ATTORNEY GENERAL
STATEMENT F
Alphabetical List of Crimes
Name of Offense
From
July 1, 1926
to
July 1, 1927
From
July 1, 1927
to
July 1, 1928
Abandonment
Abduction
Abortion
Afifray
Arson
Assault and battery
Assault with deadly weapons
Assault with intent to rape
Attempt to burn dwelling
Attempt to poison
Bastardy
Bigamy .
Bribery
Buggery
Burglary—first degree
Burglary^second degree
Burning other than arson
Carrying concealed weapons
Compounding felony ^
Concealing birth of child
Conspiracy
Counterfeiting
Cruelty to animals
Disorderly house
Disposing mortgaged property
Disturbing meetings
Election laws
Embezzlement
Escape
Failure to list taxes
Failure to work public road
False pretense
Fish and game laws
Food and drug laws
Forcible trespass
Forgery
Fornication and adultery
Gambling or lottery
Health laws
Housebreaking
House burning
Incest
Injury to property
Intoxicating liquors
Larceny and receiving
Libel :
License, practicing profession without-
License, doing business without
Manslaughter
Military laws
Municipal ordinances
Murder—first degree
Murder—second degree
Nuisance
158
35
9
121
18
642
1,168
41
1
50
6
2
1
42
25
497
35
213
137
84
3
149
70
22
9
150
14
2
138
325
209
276
7
727
18
18
88
4,288
2,375
1
3
123
11
4
227
40
BIENNIAL REPORT OF THE ATTORNEY GENERAL 57
STATEMENT F—Continued
Name of Offense
From
July 1. 1926
to
July 1, 1927
From
July 1, 1927
to
July 1, 1928
Obstructing public highway.
Obstructing river
Official misconduct
Perjury
Rape
Resisting officer
Riot
14 53
32 32
13 14
82 105
106 161
8 5
76 76
22 16
121 83
992 1,216
Robbery
School laws
Seduction
Slander
Trespass
Miscellaneous.
Totals 15,407
Addendum to Statement F
As our forms for making criminal statistics were made years ago, and other crimes
than those mentioned therein have either been defined since, or have greatly increased in
number, we give the following addendum, making the report more specific. The particular
crimes given below are included in the total of "Miscellaneous."
Name of Offense
From
July 1. 1926
to
July 1. 1927
From
July 1,1927
to
July 1, 1928
Non-support
Reckless driving Cor speeding)
Vagrancy
Violating automobile laws
Violating banking laws
Worthless check
Totals
36
386
58
146
18
199
630 843
58 BIENNIAL REPORT OP THE ATTORNEY GENERAL
Fees Transmitted by Attorney General to State Treasurer from and Including August Term, 1926, Through
February Term, 1928
State V. Barclay
State V. Strickland
State V. Lee, et al
State V. Moore
State V. Edwards
State V. Edwards
State V. Meyers
Lacy V. Surety Companies
Automotive Assn. v. Doughton__
Ragan v. Doughton
State V. Tyndall
Rich V. Doughton
Barton v. Grist
State V. Franklin
State V. Thompson
State V. Fowler
State V. Adams
State V. Fleming
State V. Anderson
State V. Williams
State V. Hunt
State V. Hartley
State V. Tomplinson
State V. Gibson, et al
State V. Baldwin
State V. Evans
State V. Harris, et al
State V. Helms
State V. Brinkley
State V. Ridings, et al
State V. Carpenter
State V. Colson
State V. Briscoe
State V. Boswell
State V. McFarland
State V. Pridgen
State V. Eubanks
State V. Mintz, et al
Waddell v. Doughton
Rotan v. State of North Carolina
State V. Hege
State V. Hill
State V. Mickle
State V. Leonard
State V. Waldrop
State V. Wade
State V. Adkins
State V. Angel
State V. Crowder
State V. Holt
State V. Gardner
State V. McLawhorn, et al
State V. Jarman
State V. Edwards
State V. Holt
State V. Saree Osborne
State V. Gill-
State V. Maslin
State V. Dowell
BIENNIAL REPORT OP THE ATTORNEY GENERAL 59
Fees Transmitted—Continued
13.30
10,00
State V. Coffer . . .. ... __ -_- - 10.00
12.20
State V. Whittle- - . _ _ _ - 12.20
20.00
14.30
Totals - -- --.:- $ 989.20
In addition to the above, the following fees have also been transmitted by the Attorney General
to the State Treasurer since 1924-26:
Spring Teem, 1923:
Corporation Commission v. Proximity Mfg. Co
Corporation Commission v. Cannon Mfg. Co
$ 25.00
25.00
Spring Term, 1926:
State V. Kyles __ .__ . ... . ... . ... 10.00 60.00
Totals. S 1,049 20
OPINIONS TO THE GOVERNOR
Corrupt Practices Act—Report
October 26, 1926.
Memorandum in relation to reports 6y committees on the amount of money
received by them for political campaigns.
The Corrupt Practices Act. now C. S. Sections 4185, et seq.,
in sub-section 10 requires any chairman or secretary of any
political party where tlieir territory embraces more tlian one
county to report to the Secretary of State not more than fifteen
or less than ten days before any general election, the amount of
money received by such committee for campaign purposes, and
again within twenty days after the election to make a similar
report of money received, and from whom, and the purposes for
which it was used. Such report is to be made under oath by the
secretary or chairman of the committee who has full knowledge
of all the details of the committee affairs. Similar reports are
to be made to the clerk of the court where the executive commit-tee
is a county executive committee.
Upon investigation we find that a similar opinion was rendered by this
office to the Secretary of State on October 28, 1920, and there has been no
modification of the statute as contained in the Consolidated Statutes.
Internal Improvements—Report
October 26, 1926.
Memorandum as to internal improvements in ichich the State has a pe-cuniary
interest.
Chapter 157, Public Laws of 1925, transferred all the duties theretofore
exercised by the Board of Internal Improvements upon the Governor and
Council of State. Section 4 of the act requires the Governor and Council of
State biennially to report to the General Assembly
:
(1) The condition of all railroads, canals, or other works of
internal improvement in which the State has an interest, and
they shall at the same time suggest such improvement, enlarge-ment,
or extension of such work as they shall deem proper, and
such new works of similar nature as shall seem to them to be
demanded by the growth of trade or the general prosperity of
the State.
(2) The amount, condition, and character of the State's inter-est
in other railroads, roads, canals, or other works of internal
improvement in which the State has taken stock, to which she
has loaned money, or whose bonds she holds as security.
(3) The condition of such roads or other corporate bodies, in
detail, as are referred to in the previous section, giving their
entire financial condition, the amount and market value of the
stock, receipts, and disbursements for the previous year or since
the last report ; the amount of real and personal property of such
corporations, its estimated value, and such suggestions with re-gard
to the State's interest in the same as may to them seem
warranted by the status of the roads or corporations.
BIENNIAL REPORT OF THE ATTORNEY GENERAL 61
(4) The names of all persons failing or refusing to report as
is required by law.
The statute is so definite and clear that it needs no comment.
Schools fok Blind and Deaf—Indigent Patients
November 2, 1926.
C. S. Section 5885 contains a provision which requires the State to pay fot
the clothing and travelling expenses from and to the Institution, of pupils in
the State Schools for the Blind and Deaf located in Raleigh, under conditions
hereinafter set out. The Statute directs the Governor to draw upon the
Auditor for an amount sufficient to cloth the scholar and pay the travelling
expenses. Thereupon the Auditor shall issue his warrant upon the State
Treasurer, who shall pay the same. The conditions, however, upon which
the Governor draws this draft are as follows
:
(1) That the parents of any deaf mute or blind child sent to
said school are unable to provide said children with the clothing
and with the expenses. This fact is to be ascertained by the affi-davit
of two respectable citizens.
(2) Where the child has no living parents or any estate of
its own.
AVhen the State pays this amount under the conditions above stated, the
Auditor is required to charge that amount to the County from which the child
came and the county has to pay the same. The amount charged shall in no
case exceed $45.00 per year for any pupil in addition to such amount as
may be required to defray all necessary travelling expenses of the pupils.
It appears that this section of the law was complied with in the case of the
children of one , of Nash County, and the children are now in the
school, supported in part by this fund. Mr. J. B. Boddie, Register of Deeds of
Nash County, writes to the Governor in regard to these children, asserting
that the two respectable citizens, —. and - , are mistaken in
making the affidavit required by the Statute, under which the children are
provided with this annual fund by the State. It has been discovered, accord-ing
to Mr. Boddie. that F. S. Rackley, the parent of the children, is the
owner in fee of 100 acres of land in Nash County. Mr. Boddie wishes to
know what to do under the circumstances. His letter indicates that the
county is now repaying to the State the funds advanced by the State for these
children under the Statute. It is very clear, we tliink, that under the cir-cumstances
of this sort, the county would have a cause of action against
Rackley in which it might subject this 100 acres of land to the payment of
the funds advanced by it to Rackleys children. The county is in much bet-ter
position to attack the affidavits of Edwards and Batchelor than would be
the State, under the circumstances.
The Governor himself, of course, might enter upon an investigation as to the
truth of the allegations contained in Mr. Boddie's letter and the falseness of
those contained in the affidavits of Edwards and Batchelor and under proper
conditions withdraw the State advance to the children, certainly with refer-ence
to future advances. Nash County, however, should enforce its own
rights in the premises with reference to past payments. The presumption of
62 BIENNIAL REPORT OF THE ATTORNEY GENERAL
law, of course, in the absence of any investigation by the Governor, is that
the affidavits supplied him are correct.
BXTEADITION—FUGITIVE FROM JUSTICE
November 24, 1926.
In the matter of the extradition of H. A. W. Smith.
We think that the Governor would be justified in refusing to honor the
requisition in this case for two reasons
:
(1) It appears from Smith's evidence and the evidence of his daughter,
Mrs. Evans, that his wife, now resident in New Jersey, and whom he is al-leged
to have abandoned, voluntarily separated herself from him previous to
his leaving the State of New Jersey. This being true, there was not an
abandonment, either in law or in fact.
(2) The alleged abandonment occurred in September, 1917. A short time
previous to this, as above said, Mrs. Smith separated herself from her hus-band
and refused to live with him. He came to North Carolina soon after-wards
and on charges of non-support he went back to New Jersey in 1919 and
there undertook to pay his wife $7.00 a week, bu:t without in any way assum-ing
his marital relations with her. she still refusing to live with him. There-upon
he came back to his home in North Carolina and continued to send her
these payments from time to time until some time in 1921. After returning
to North Carolina, and residence in the State for a period of five years, he
brought an action for divorce against his wife, Helen M. Smith. This action
was commenced April 28. 1924. In the same year after service of process by
publication, final judgment was obtained in the Superior Court of New Han-over
County dissolving the bonds of matrimony which had heretofore existed
between H. A. W. Smith and Helen M. Smith. The decree was entered at
the May Term, 1924, of the above court. The effect of this decree so far as
the State of North Carolina is concerned was to remove all obligations on the
part of H. A. W. Smith to support his former wife.
Under circumstances of this kind we think that in addition to the fact that
Smith had committed no crime, he was not a fugitive from justice within the
meaning of the Federal Constitution and Statute. We, therefore, advise as
hereinbefore said that the requisition in this case be not honored, it being
apparent that it is an attempt to enforce against Smith an alleged pecuniary
obligation on the part of his wife when that obligation has not existed, cer-tainly
since the decree of divorce obtained by him against her.
Statutes—Interpketation
March 3, 1927.
House Bill 257, after passing the House, passed also the Senate and was
ratified on February 11, 1927. The object of this bill was to exempt certain
legacies of the Union Theological Seminary of Richmond, Va., from inher-itance
tax. It did not accomplish that purpose on account of its wording,
which was as follows :
Or charitable corporations (not conducted for profit) domes-ticated
in this State, and at least one-fourth of the property so
BIENNIAL REPORT OP THE ATTORNEY GENERAL 63
passiug is for the benefit of the inhabitants of the State of
North Carolina.
Though a gift to the Union Theological Seminary for purposes incident to
its organization would be a gift to a charitable purpose, yet that institution,
though a corporation organized under the laws of Virginia, is in no sense a
charitable corporation.
House Bill 1178, Senate Bill 236, has been ratified as a public law today,
March 3, 1927. That act rewrites the proviso in the third sub-section of Sec-tion
6 of the Revenue Act of 1925, as follows
:
Provided, that no tax be imposed or collected under this sec-tion
on legacies or property, passing by will or otherwise, or by
the laws of this State, to religious, educational or charitable
corporations not conducted for profit, incorporated in this State,
or to such foreign corporations receiving and disbursing funds
donated in this State for religious, educational or charitable pur-poses.
This provision shall apply to all such legacies or property
passing by will or by the laws of this State since March twelve,
one thousand nine hundred and twenty-five : Provided, that this
shall not apply to cases where the tax has already been paid.
It is entirely clear that the latter act controls the situation and in express
terms meets the objection that the Union Theological Seminary is not a
charitable corporation, for it applies not only to so-called charitable cor-porations
but also to religious and educational corporations. So far, there-fore,
as the Union Theological Seminary is concerned, or other corporations
designated either as religious or educational corporations, the latter act not
only controls, but is in no sense modified by the former act. It is true that
laws enacted particularly at the same session of the Legislature upon the
same subject are to be construed together, with the former act modified
only so far as it is necessary to effectuate the purpose of the latter act.
Whether or not as to distinctively charitable corporations the enactment
of the act of February 11. 1927, has any effect upon the act of March 3rd is
not material to the present discussion. It is clear, for the reasons hereinbe-fore
stated, that the Union Theological Seminary, and all corporations of the
same class of all the churches, are taken care of in the latter bill.
State's Prison—Eminent Domain
March 19, 1927.
The question propounded by you to this office may be stated thus : Can the
State Prison, if negotiations are unsuccessful in purchasing land under the
recent act of the Legislature, exercise the power of eminent domain to ob-tain
it?
Under the Amendment of 1923, Chapter 205. Public Laws, it is clear that
the State Prison may condemn land if it is found necessary to do so. Stated,
so far as applicable to the instant case, the statute is as follows
:
The right of eminent domain may be exercised by any educa-tional,
penal, hospital or other institution incorporated or char-tered
by the State of North Carolina for the furtherance of any
of its purposes if such institution shall be in need of adjacent
land for necessary enlargement or extension, and shall so declare
64 BIENNIAL REPORT OF THE ATTORNEY GENEKAi^
through its board of directors, trustees or other governing boards
by resolution inserted in the minutes at a regular meeting or spe-cial
meeting called for that purpose ; such institution shall have
all powers, rights and privileges of eminent domain given under
Chapter 38 of the Consolidated Statutes of 1919 to condemn
and procure such laud, and shall follow the procedure estab-lished
in such chapter.
Board of Health—Investigation
April 30. 1927.
On April 15th, I submitted report to you in response to your request of
March 11th vpith regard to reported charges of graft against employees of
the State Board of Health. That request from you was as follows
:
I respectfully request that you ascertain the particular nature
and character of the charges of graft against certain employees
of the Board, and if the evidence submitted to you in your opin-ion
justifies it, that you proceed at once to make a thorough
investigation.
Your letter was accompanied by one from Dr. Charles O. H. Laughinghouse,
Secretary of the State Board of Health, in which he stated
:
The Board will appreciate your requesting Dr. John B. Wright
and Senator Rivers Johnson to submit to you such proof of
charges of graft and inefficiency as they may possess or be able to
procure.
The Board requests that evidence relating to charges of graft,
as indicated above, be submitted to the Attorney Greneral by your-self,
with directions for a careful investigation.
I proceeded with the inquiry in accordance with your request, based upon
the letter of Dr. Laughinghouse. Upon request from me, Dr. Wright came to
my office. He stated that he had made no charges of graft against the Board
or any of its officers or employees, but had stated that Senator Rivers John-son
of Duplin County, had made such charges on the floor of the Senate on
Monday, March 7th.
On March 23rd I addressed a letter to Senator Johnson, informing him of
your request and asked him for any statement that he desired to make on
the subject. On March 24th he replied that he would be here on the following
day. He called at this office late in the afternoon of March 25th, when I was
in conference with Governor Doughton at the Revenue Department Building.
I was notified by my office that Senator Johnson had called, and found him
a few minutes thereafter. I was expecting to leave town in a short while,
but told him I would stay over the night for a conference with him. He
stated that he had another engagement at that time and wanted to return
home that evening, but would probably be back in Raleigh the following
week. On March 29th I again wrote Senator Johnson, telling him that I
would be out of the office Friday and Saturday of that week, but would be
glad to have him submit any written statement that he might desire. He has
not submitted such statement.
Statements made in debates in the General Assembly are of a highly priv-ileged
character. Our State Constitution does not contain a provision sim-ilar
to that of the Federal Constitution, that "for any speech or debate in
BIENNIAL REPORT OF THE ATTORNEY GENERAL 65
either house they shall not questioned in any other place." But that lack
(Joes not afiEect or lessen the vigor of the fundamental principles upon which
our Government is based. It is not within your or my right or power to
engage in any form of procedure which would call in question the acts of
Senator Johnson or any other member of the General Assembly while en-gaged
in the performance of their duties.
In addition to the inquiry made of Dr. Wright and Senator Johnson, I had
correspondence and interviews with probably fifteen other persons prior to
April 15th. As stated to you in my report of April 15th, no charges of graft
have been submitted to me, and I have been unable to elicit any information
or evidence upon which an investigation could proceed under the limitations
contained in the request of Dr. Laughinghouse to you and your letter to me.
But another development has taken place from which I am of opinion yoa
could well request an investigation of broader scope and less limited in its
procedure. The press on March 21st, contained the news that the House of
Delegates of the Medical Society of the State had on the preceding day in its
session in Durham, adopted a resolution asking you to request me to proceed
further with the investigation. On April 27th I addressed a letter to Dr. J. T.
Burrus of High Point, newly elected President of the Society, asking him for
a full transcript of the proceedings of the Society which have relation to this
matter. I have not yet heard from Dr. Burrus in response to my letter of
April 27th.
On yesterday I received from another source, copy of the resolution referred
to. The material part of that resolution is as follows
:
Be it resolved, that this House of Delegates do respectfully re-quest
the Governor of North Carolina to repeat his request of the
Attorney General and respectfully insist upon a thorough investi-gation
by the summoning of such persons as have or may have
knowledge of the taking of graft by certain officers of the State
Board of Health and by requiring such persons to be placed under
oath and to testify as to their knowledge of the aforesaid charges,
in order that any person found guilty of such charges may be pun-ished
and the fair reputation of the North Carolina State Board
of Health placed above reproach.
I am of opinion that the investigation should proceed in accordance with
the request of the State Medical Society. Your request of March 11th to me
was in line and in accordance with the letter of Dr. Laughinghouse to you.
The resolution of the State Medical Society is entirely different. In accord-ance
with the letter of Dr. Laughinghouse to you and yours to me, I have
conducted the inquiry for information, evidence or charges of graft, but
without result. If it meets with your approval I can, as requested by the
Society, subpoena all persons whose names have in any way been connected
with the matter, and have them testify before me under oath.
I think also that the investigation should take a wider scope than as to
simply whether there has been gx'aft in the State Board of Health in the en-forcement
of the sanitary privy law. Suggestions reach me that the law has
been enforced with undue hardship, oppression and arbitrariness. An inves-tigation
to ascertain if there has been graft would not include this feature,
but I think that I should be permitted to receive evidence of this nature as
well, and that the investigation should take such scope as developments may
warrant.
66 BIENNIAL REPORT OF THE ATTORNEY GENERAL
I should be glad to go into it in this way if authorized to do so by you.
If an investigation along these lines is to be authorized, I would like to enter
upon it during the week of May 9th, as I have no engagements for that week.
Cl^IM—W. H. WOKTH
May 6, 1927.
The General Assembly of 1927 passed an act, Chapter 238, entitled, "An
act to provide for the determination of certain claims by the Governor and
Council of State." Under that act claim has been presented to the State
Auditor by William H. Worth, former Treasurer of the State, asking for re-imbursement
of the sum of $12,060.04 paid by him into the State Treasury
on account of embezzlement of State funds by his clerk, one W. H. Martin.
I am asked by you and the Council of State for an opinion as to your and its
power under this act.
Under the act the General Assembly has committed to the judgment and
discretion of the Governor and Council of State the power and duty of de-termining
from all the facts and circumstances whether in propriety, good
conscience or morals the money should be paid to Mr. Worth. Assuming that
the facts are as stated in the application filed by him, I am of opinion that
the Governor and Council of State have the legal right to direct the State
Auditor to issue his warrant to Mr. Worth for this money.
I am further of the opinion that it is unnecessary to make an allocation
out of the emergency appropriation for this purpose, as Chapter 238, Public
Laws of 1927, directs the payment "out of any funds in the State Treasury
not otherwise appropriated."
Members of the General Assembly—Privilege
May 7, 1927.
This is not, and cannot be, an investigation of any thing said in debate in
the General Assembly. Therefore, I am not issuing a subpoena to compel the
attendance of Senator Johnson at the hearing on May 12.
The United States Constitution, Article I, Section 8, provides in respect of
members of Congress : "And for any speech or debate in either House they
shall not be questioned in any other place."
A provision of like import is in every American state constitution except
those of North Carolina, South Carolina, Mississippi, Texas, California and
Nevada. Gushing in his work on Law and Practice of Legislative Assemblies,
Section 602, says that these provisions are unnecessary and that the privilege
thus conferred is equally complete without them.
However that may be, the principle is in full vigor here. It is contained in
a legislative enactment, II C. S. 6093, which in part is as follows
:
The members shall have freedom of speech and debate in the
General Assembly, and shall not be liable to impeachment or
question, in any court or place out of the General Assembly,
for words therein spoken.
This enactment goes back to Chapter 277, Laws of 1787, and has been
brought forward in every general compilation of the statutes since that time.
BIENNIAL REPORT OF THE ATTORNEY GENERAL 67
The privilege thus granted comes down from the long and bitter struggle
of our English ancestors for civil liberty. In that contest human rights found
their best defender in the House of Commons, the popular branch of the
English Parliament.
From the earliest times the leaders of the people insisted upon freedom of
speech in the Parliament itself. They realized that vpithout such freedom all
other rights would be insecure or unattainable. Such freedom is essential
to the independence of a legislative body and to the untrammeled and un-coerced
discharge of their duties by its members.
The right was constantly asserted and continually violated in the early
days. Its most outrageous violation precipitated the civil war between
Charles I and the Parliament.
In his "History of the English Parliament," Barnett Smith says
:
On January 4, 1642. there was enacted the most memorable
scene ever witnessed in the House of Commons.
On that day Charles, at the head of several hundred soldiers, marched to
the Parliament Building with the avowed purpose of arresting five of the
Parliamentary leaders, Hampden, Pym, Holies, Haselrigg and Strode, on the
charge of treason, based largely upon resolutions and debates of the House
in which they had participated. He failed of his purpose only because they
had absented themselves on learning of his approach. As he retired in
baffled rage, the cry of "Privilege!" arose from the members around him. Six
days later he left London to begin the civil war which ended with his death.
The battle was not completely won for this freedom of debate until another
English king had been dethi'oned. In 1689 by the Bill of Rights it was finally
declared
:
That the freedom of speech, and debates and proceedings in
Parliament, ought not to be impeached or questioned in any court
or place out of Parliament.
The principle thus declared is as deeply embedded within the structure of
our civil institutions, as the right of trial by jury for felony.
Another principle becomes apposite here. North Carolina Constitution,
Article I, Section 8, says
:
The Legislative, executive and supreme judicial powers of the
government ought to be forever separate and distinct from each
other.
Under our Constitution, the Legislative Department is the residuum of all
power not otherwise conferred or retained. The members of the General
Assembly are the direct representatives of the people. The Executive De-partment
is without power or right to inquire into or investigate the actions,
debates or proceedings in either House. There is not a Supreme Court in
America which would hold that such an investigation might be prosecuted.
This privilege is conferred, not for the personal benefit of the legislator.
It was fought for and won, and remains as part of our law, so that legisla-tors
may perform their duties without fear of consequences. It is more than
a privilege of the senator or representative : it is a prohibition upon others
—
upon me.
68 BIENNIAL REPORT OF THE ATTORNEY GENERAL
To use any compulsory process to secure the attendance of Senator Johnson
before me in this investigation would be a violation of this freedom so hardly
won and so long existent. I have heretofore asked Senator Johnson to fur-nish
me with any statement he desired to make on the subject. I am today
notifying him that I will enter upon the investigation May 12, and that he
may attend and testify if he so wishes. If he appears, it must be freely and
voluntarily, and without any attempted compulsion on the part of any mem-ber
of the Executive Department.
Throughout my handling of this matter I have proceeded upon the idea
that these principles were so well established and so well known that they
did not need restatement. Apparently, I was mistaken. Quite probably this
is so because no need for the application has arisen within recent years. But
it is necessary that we recall them, and their history, and that I act upon
them. I shall do so. Governor McLean does not ask or expect me to do
otherwise.
Constitutional Law—Public Services
September 3, 1927.
In re Grant to Joseph P. Enapp
The law which deals with the grant to Joseph P. Knapp is Chapter 229 of
the Public Local Laws of 1927. Section 1 thereof is plainly mandatory. The
words of the first clause thereof being as follows:
That the Secretary of State be and is hereby authorized and
directed to issue, etc., etc.
These words we think are equivalent to shall. There is nothing in Section
29 of Article 2 of the Constitution to prohibit this legislation. While it is a
special privilege within the meaning of the Constitution, yet the General
Assembly directs the grant in consequence of recited public services by Mr.
Knapp. Consequently we think the act is valid and that there is no avoiding
executing the grant in obedience thereto.
Extradition—Civil Contempt
September 10, 1927.
The letter of Mrs. Annie M. Price to you presents a pitiful story and I wish
that some way could be found by which her former husband could be made to
support his children.
It seems that in proceedings brought in the Court of Lawrenceville, Bruns-wick
County, Virginia, for non-support, W. B. Price, the husband of your
correspondent and the father of the children, was ordered to pay $75.00 per
month for the support of the children until 1929. He paid this amount for
only three months, then left the state of Virginia and since has resided in
Kings Mountain, North Carolina.
There are two difficulties in the way of any action against Price by the
state, either of Virginia or North Carolina. First, the failure to pay this was
in all probability what is known as a civil contempt as distinguished from a
criminal contempt and extradition does not lie for such offenses and, second,
BIENNIAL REI'ORT OF THE ATTORNEY GENERAL 69
even if we should assume that his failure to continue these payments was a
crime, he probably committed the crime in North Carolina and consequently
could not be a fugitive from justice. Mrs. Price, however, if he is solvent,
could bring a civil action against him in North Carolina based on this judg-ment
of the Virginia Court and compel him to pay the defaulting installments.
To do this, she would be compelled to employ counsel in Cleveland County.
University of North Carolina—Appropriation
September 15, 1927.
In re Permanent Improvement Appropriation 1927—University of
North Carolina
I am in receipt of your letter of September 13 on this subject. By Chapter
147 of 1927 the General Assembly appropriated for permanent improvements
at the University $1,220,000.00. The specific objects for which appropriations
were made included Peabody Hall Wing, New Dormitory and Improvement
of Grounds. The appropriation does not itself name the amounts to be used
for each object, but the amoiuits for these three as calculated by the approp-riation
Committee were as follows
:
Peabody Hall Wing $95,000.00
New Dormitory .- -.- $80,000.00
Improvement of Grounds '. $15,000.00
The University officials budgeted this appropriation under Chapter 230 of
1925. In doing so it made no allocation at all for the Peabody Hall Wing
and the New Dormitory and allocated $112,000.00 for Improvement of
Grounds. There are other changes in the alloca^tion from that as calculated
by the Appropriation Committee, but these are of less consequence than the
three mentioned. Upon this you ask my opinion as to whether you should as
Director of the Budget, approve the allocations so made and budgeted.
Under Chapter 230 of 1925 it is required that each institution in preparing
its budget shall follow "as nearly as may be" the itemized requests submitted
by the institution for appropriations "and upon which the appropriation was
calculated and made." Further "it shall be the duty of the Director of the
Budget to see that all money appropriated for either permanent improvements
or maintenance shall be expended in strict accordance with the budget of
each institution and the appropriations made by the General Assembly for
such purpose." The Act contains other language of similar import which
can readily be seen from a reading of it.
I am. therefore, of opinion that the Budget if so made out is not in accord-ance
with the Act on the subject and, therefore, that you would be disre-garding
Chapter 230 of 1925 in approving it. In saying this I do not mean
to hold that there could not be necessary and reasonable variations between
the amount originally calculated and finally budgeted and spent for a partic-ular
object. Section 2 of Chapter 230 takes care of that in the requirement
that the Budget allocations shall he "as nearly as may be" the calculation
upon which the appropriation was made. These necessary and reasonable
variations are, of course, in the first instance for determination by the Trus-tees
of the University and finally for yourself in giving approval to its Bud-
70 BIENNIAL REPORT OF THE ATTORNEY GENERAL
get within tlie scope of your duties as director of tlie Budget. However, such
variations do not justify leaving out of the Budget the two items for which
no allocation has therein been made. I am also of opinion that the same
reasoning applies to an increase in the item of Improvement of Grounds
from $15,000.00 to $112,000.00.
Claims Against United States
September 16, 1927.
I have examined carefully the papers enclosed in the letter of Mr. Samuel
Spencer Jackson to you under date of September 6, 1927. The contract made
by Governor Caldwell and D. A. Jenkins, Treasurer, with J. J. Jackson more
than fifty-three years ago is, cf course, not operative now. It is a kind of
contract which involved personal skill to a certain extent and so was not
assignable. Governor Aycock's letter of February 14, 1903, renewed the con-tract
so far as Mr. S. S. Jackson was concerned, by substituting him for his
father, J. J. Jackson, in the matter so far as the moral aspect of the ques-tion
is concerned. You will observe, however, that Governor Aycock ex-pressly
disclaims authority to make a new contract. As nothing has been
done, however, under this promise of Governor Aycock, we think the matter
is again at large and that you have authority, vmder Section 3 of Chapter
207, Public Laws of 1925, to make any contract for the collection of this
claim with Mr. Jackson, himself, or any other attorney.
So far as we have been able to discover there are only two contracts out-standing
at the present time made by the State looking to the collection of
claims against the federal government. As you know, soon after the Civil
War, the federal government levied a direct tax upon certain classes of
property, including cotton, and that this tax was held unconstitutional as
not complying with the federal Constitution in relation to direct taxes. On
March 9, 1921, Governor Morrison made a contract with Winston and Win-ston
(R. W. Winston, of Raleigh) to look after the interests of the citizens
of North Carolina in the refund of this direct tax upon cotton.
On July 10, 1914, Governor Craig made a contract vnth. Robert H. McNeill
and Adrian Sizer, of Washington, D. C, in relation to the collection of
claims against the United States growing out of expenses incurred by the
State of North Carolina in raising troops and equipping them for the War
of 1812-15 and similar claims arising out of the Spanish American War of
1898.
These are all the contracts between the State and attorneys in relation to
these matters that we have been able to discover. You will, therefore, ob-serve
that the particular matter in which Mr. Jackson is interested is not
included in either of the other contracts.
Insane—Federal Prison
September 19, 1927.
In re Bessie Gregory
We do not know that we can add anything further which would be helpful
to you than what we have said heretofore, opinion to be found at page 95 of
the Biennial Report of this office, 1924-26.
BIENNIAL REPORT OF THE ATTORNEY GENERAL 71
Mr. Finney, Assistant Secretary of the Interior, in his letter of August 15,
1927, again refers to IS Statutes 251. This was enacted on June 23, 1874 and
deals with an entirely different situation from that presented in Bessie
Gregory's case. She was convicted in the District Court of the United States
for the Eastern District of North Carolina. She was sentenced to the State's
Prison at Lansing, Kansas. She was not insane at the time of the sentence,
else she would not have been convicted of the crime charged against her.
She became insane then while a United States prisoner in a State's prison.
She was transferred from that State's Prison to Saint Elizabeth's Hospital
in the District of Columbia as a Federal insane prisoner. This transfer was
made under page 251 referred to above, an Act approved June 23, 1874. The
United States government in doing this chose one of the alternatives pre-sented
in this Act. The other alternative w^as that the Attorney General
of the United States, if there was no room in Saint Elizabeth's Hospital,
might contract with any State insane or lunatic asylum for the care of this
insane convict and under such circumstances the insane convict might be
transferred to the State institution selected. If this was done, then the
United States was required to pay such amounts as the Attorney General
of the United States might deem just and reasonable for the cost of the care
of the insane convict. This authority to pay the costs, however, could not
extend beyond the term of the imprisonment of the insane convict. This
latter alternative, as hereinbefore said, was not adopted by the Federal
government, but the woman was transferred to the hospital in the District
of Columbia. We think, therefore, that Bessie Gregory, under the statute
quoted in the former opinion, she still being insane, is a proper charge for the
Federal government and cannot, for that reason, be transferred to any hos-pital
in North Carolina, she having become insane while a convict in the
custody of the United States government. In the former opinion, as you will
see upon referring to it. we dealt with the contention that the purpose
stated in the appropriation Act of March 3, 1925, could in any way increase
the liability of the State of North Carolina for the care of this insane con-vict.
We, however, suggested that the authorities in Washington could take
the opinion of the Attorney General of the United States on this point and
if that opinion was adverse to the position therein taken by us, then Bessie
Gregory might be transferred at the expense of the United States from the
Saint Elizabeth's Hospital to the hospital at Goldsboro, she being a colored
woman. See Compiled Statutes of 1918, Section 9319 to Section 9323 in-clusive.
Special Agents—Authority of Governor
September 21, 1927.
Tou submit to me report of Mr. E. B. Bridges, Pardon Commissioner, who at
your request investigated the actions of the mob in Louisburg, September 12
and 14. There has also come to your attention flogging of individuals by
bands of men in Wake and possibly other counties. Because of these condi-tions
you submit to me certain inquiries which may be summarized as follows
:
(1) What power does the Governor have to employ special
agents to investigate such conditions, ferret out and apprehend
72 BIENNIAL REPORT OF THE ATTORNEY GENERAL
the offenders, and what authority does he have to offer rewards
for such purposes?
(2) If the power to do this exists, in what cases of offenses
should it be exercised?
It is well to go back to constitutional principles. The Governor is vested
with "the supreme executive power of the State." Constitution, Article
3, section 1.
He "shall take care that the laws be faithfully executed." Constitution,
Article 3. section 7.
"The Governor shall be Commander-in-chief, and shall have the power to
call out the militia to execute the law, suppress riots or insurrections, and to
repel invasions." Constitution, Article 12. section 3.
In these provisions there is more of the spirit controlling the exercise
of executive authority than direction as to how that power shall be used.
The actualities growing out of its development should be kept in mind in
construing the statutes giving specific authority to the Governor. He may
not interfere in the ordinary administration of justice. The courts must
pass upon the guilt or innocence of persons accused of crime and generally
upon indictment by a grand jury. Ours is a government of separated powers
and "the legislative, executive and supreme judicial powers of tlie govei'n-ment
ought to be forever separate and distinct from each other." Consti-tution,
Article 1, section 8.
Primarily, it is for local officials to ferret out crime and for the solicitors
to prosecute. i\.nd yet. there are cases in which the State in its corporate
capacity should take part. Under C. S. 7636 the Governor is authorized "to
supervise the official conduct of all executive and ministerial officers." Under
C. S. 4554 the Governor may employ special agents and offer rewards in
certain cases. That section is as follows
:
Governor may employ agents, and offer rewards. The governor,
on information made to him of any person, whether the name of
such person be known or unknown, having committed a felony
or other infamous crime within the state, and of having fled out
of the jurisdiction thereof, or who conceals himself within the
state to avoid arrest, or who, having been convicted, has escaped
and cannot otherwise be apprehended, may either employ a spe-cial
agent, with a sufficient escort, to pursue and apprehend such
fugitive, or issue his proclamation, and therein offer a reward,
not exceeding four hundred dollars, according to the nature of
the case, as in his opinion may be sufficient for the purpose, to
be paid to him who shall apprehend and deliver the fugitive to
such person and at such place as in the proclamation shall be
directed."
The practice with respect to the offer of rewards by executive authority
is well established and needs no comment here other than to say that the
offer of a reward by the State is not dependent upon similar action by any-one
else or any sub-division of the State.
Tlie construction of the act with respect to the employment of special
agents is of more difficulty. Reading the section with respect to this, it Is
as follows
:
The governor, on information made to him of any person,
whether the name of such person be known or unknown, having
committed a felony or other infamous crime within the state
BIENNIAL REPORT OF THE ATTORNEY GENERAL 73
* * * who conceals himself within the state to avoid arrest
* * * may * * * employ a special agent * * * to pursue
and apprehend such fugitive.
It will be noted that the action of the Governor in employing a special
agent or offering a reward is limited to those cases where a felony or other
infamous crime has been committed. It is clear also that this is to be done
only where the offender conceals himself, cannot be found or arrested, and
there are difficulties in the effort to apprehend him. Report of Attorney
General, 1909-10, page 125. For your convenience copy of this opinion is
herewith sent.
By C. S. 4376 conspiracy to enter a jail for the purpose of killing or other-wise
injuring prisoners confiued therein is made a felony, punished by a
maximum imprisonment of fifteen yeai's in the State's Prison. Upon the
report made to you by Mr. Bridges in the Franklin County matter, I ad-vise
that you have authority under C. S. 4.554 to employ a special agent
to investigate the affair with a view to ferreting out and apprehending the
offender.
May you employ special counsel to prosecute in such a case? Section 3,
Chapter 207, Public Laws of 1925, gives you authority to employ special
counsel "in any case, civil or criminal, in any court in the State * * * ^j.
in any other matter, thing, or controversy, of whatever nature or kind, in
which the State of North Carolina is interested." I, therefore, advise you
that you do have power to employ special counsel to prosecute in any criminal
case arising in the courts of the State.
In what felonies or other infamous crimes you will employ special agents
or offer rewards under C. S. 4554, or in what criminal cases you will employ
special counsel to prosecute under the act of 1925 is largely for your judg-ment.
That judgment should be controlled by the attendant circumstances
and conditions. You will observe that offering rewards and employing spe-cial
agents is limited to felonies or other infamous crimes. The employ-ment
of special counsel is not so limited.
Certainly, it is not intended that you should offer rewards, employ special
agents or special counsel as a usual thing. It is only upon extraordinary
occasions or in cases of special significance that you should thus act. The
Franklin County affair is one not of the usual kind although no murder or
other capital offense was committed.
Always, where action depends upon the exercise of judgment, there will
be cases in which it is clear that action should, or should not, be taken, and
others along the border-line about which there will be difference of opinion.
The Franklin County affair is one which in my opinion, there can be no
doubt about your authority to offer a reward or to employ a special agent
and special counsel. The taking of a prisoner from the custody of the law
and lynching him, or the attempt to do so, by armed bodies of men is an
offense against the majesty and dignity of the State. It is an assault upon
government itself; it is an attack upon the authority of all law. If per-mitted,
it will break down the social order and destroy the power of the
State to perform its first duty to its citizenship. In a peculiar sense, there-fore,
it becomes the duty of the State to punish those who commit this
kind of offense.
The general administration of the law must be left in the hands of local
oflScials with whom it is placed. It is a physical impossibility for the Gov-
74 BIENNIAL REPORT OF THE ATTORNEY GENERAL
ernor to intervene in all of the cases in which his power to do so may exist.
The English speaking peoples have a passion for local self-government and
local control of their affairs. Quite frequently the Governor has offered re-wards
for the apprehension of fugitives from justice. It is only in extreme
cases that the executive authority has gone further than this. The authority
to employ special agents has existed for many years but has seldom been
used by preceding Governors. The act of 1925 broadens the power of the
Governor to employ special counsel.
Always, there will be difficulty in deciding in what cases special agents
or special counsel will be employed. Giving significance to our constitutional
provisions, the inherent principles of our governmental structure, and the past
and approved practice of the Executive Department. I am of opinion that
the power should be exercised in caution and with moderation. There can
be no doubt that there is full justification for such action by the Governor
in those cases where a lynching occurs, or where an attempt is made to take
a prisoner from the custody of officers.
State Fair—Act of 1927
October 6, 1927.
Section 1 of Chapter 209, Public Laws of 1927, is as follows
:
That for the purpose of the holding annually of a State Fair
and exposition which will properly represent the agricultural,
manufacturing, industrial and other interests of the State of
North Carolina, there is hereby dedicated and set apart two hun-dred
acres of land owned by the State or any department thereof
within five miles of the State Capitol, the particular acreage to
be selected, set apart, and approved by the Governor and Coun-cil
of State of North Cai'olina.
The remaining sections of said act deal with the appointment of directors
for the State Fair, the conditions upon which "the dedication and setting
apart" of the two hundred acres of land above referred to is predicated,
and avithorization to the City of Raleigh and the North Carolina Agricul-tural
Society to set over and deliver certain property to the State in furth-erance
of the objects of the act.
You ask my opinion as to whether "the Governor and Council of State are
bound to (a) set aside at least two hundred acres, and (b) set aside lands
owned by the State at the time of the enactment of the law, or if they can,
if they determine it is for the best interest of the State, provide for the pur-chase
of a tract of land not then owned by the State.
I am of opinion that the Legislature has by the act fixed the size of the
tract to be so set aside by the Governor and Council of State at two hun-dred
acres.
I am further of opinion that the Governor and Council of State are not
authorized by the act to select for the site of the State Fair any land other
than that owned by the State or some department thereof at time of the
passage of the act and situated within five miles of the State Capitol. By
section 1 of the act the General Assembly itself "dedicated and set apart
two hundred acres of land owned by the State or any department thereof
within five miles of the State Capitol" for this purpose. The actual selec-tion
of the land is left to the Governor and Council of State. Whatever
BIENNIAL REPORT OF THE ATTORNEY GENERAL 75
may have been the thought of some members of the General Assembly at the
time the act was passed, it clearly has reference to land then owned by the
State, and it would do violence to the language used to give it any other
construction.
This construction is further supported by the fact that neither this nor
any other act of the 1927 General Assembly gives authority to the Governor
and Council of State to purchase any land for the State Fair. Nor is there
any appropriation made for such purchase. Surely, if the General Assembly
had intended a purchase by the State for this pui-pose, it would have given
authorization for that purchase to the Governor and Council of State, and
provided the necessary funds. It has done neither. Authority to purchase
cannot be found in the act, where the authority is limited to select, set apart
and approve an acreage out of lands owned by the State or any department
thereof.
Lynching—Liability of County
January 7, 1928.
In reply to your letter of January 5th, enclosing letter from Honorable
Leon M. Bazile, Assistant Attorney General of Virginia, which latter letter
is returned herewith.
Since March 6, 1893, which was the effective date of Chapter 461 of the
laws of that year, the following section of the law has been in force In
North Carolina and is brought forward in the Consolidated Statutes of 1919
as Section 3945:
When the sheriff of any county has good reason to believe that
the jail of his county is in danger of being broken or entered for
the purpose of killing or injuring a prisoner placed by the law in
his custody it shall be his duty at once to call on the commission-ers
of the county or some one of them for a sufficient guard for
the jail, and in such case, if the commissioner or commission-ers
fail to authorize the employment of necessary guards to pro-tect
the jail, and by reason of such failure the jail is entered and
a prisoner killed, the county wherein whose jail the prisoner is
confined shall be responsible in damages to be recovered by the
personal representatives of the prisoner thus killed, by action be-gun
and prosecuted before the Superior Court of any county in
this State.
State Automobile—Indemnity Insurance
January 25, 1928.
I have examined carefully the policy issued to you and the State of North
Carolina by the United States Casualty Company. That policy is issued by
the Company as a protection to the State and you in the operation of the
automobile assigned to you by the State. The automobile is State property
and the chauffeur is a State employee. In consequence of this, the policy
is made, by a rider attached thereto, not an indemnity to the State but an
outright insurance for the benefit of all persons and property, up to the limit
fixed in the policy, for injuries or damage. Your own individual liability
arising from the negligent operation of this automobile is confined strictly
to instances in which you have been personally negligent. The policy in the
instant case, then, is, I think, an indemnity to you. In other words, so far
76 BIENNIAL REPORT OF THE ATTORNEY GENERAL
as you personally are concerned, the liability of the Company is secondary
to your liability. I think that therefore, to this extent, you are protected
by the policy as well as the State. The rider attached, which changes the
form of the insurance, relates only to the State. Consequently, the policy
remains still an indemnity policy for you personally.
United States—Contra-Accounts
January 26, 1928.
You inquire what State officer or Department has authority to bind the
State in relation to the settlement of contra-accounts between the State and
the United States Government.
The latter owns certain bonds of the State, which bonds come within the
class, the payment of which was commuted under the Act of 1879, the prin-cipal
thereof amounting to $58,000, and the unpaid coupons to $88,140, and
the State of North Carolina has two claims against the United States Gov-ernment,
(a) for advances during the War of 812 and (b) for the proceeds
of cotton seized by the United States, whose value at the time of the seizure
was $42,532.54. This amount is to bear interest at the same rate as the said
bonds now held by the United States Government. In the settlement it is
said that the State of North Carolina will be entitled to a substantial balance.
In section 27 of Chapter 270, Laws of 1869, in defining the powers and
duties of the Governor, among other things it is said, "He is the sole official
organ between the Government of this State and other States, or the Gov-ernment
of the United States."
That Statute in this particular has been brought forward in the Consoli-dated
Statutes as sub-section 4 of Section 7636. It is remarkable in the fact
that he is made the sole official organ. Webster defines organ as "an instru-ment
or medium by which some important action is performed, or important
end accomplished ; legislatures, courts, armies, tax gatherers, etc., are organs
of government."
We are not aware of any instance in which this authority of the Governor
has been directly invoked in the history of the State, certainly since the
administration of Governor Holden. It seems to us that the conditions
surrounding the proposed settlement peculiarly permit the invoking of this
authority so conferred upon the (Governor, to a full and complete settlement
of the matter, through and by him, acting as the sole official organ of the
State in thus negotiating between two, in this regard, independent sover-eignties.
There can be no claim that the authority so exercised with the permission
of the Legislature would be unconstitutional, for section 1 of Article III
of the Constitution declares (among other things), "The Executive Depart-ment
shall consist of a Governor, in whom shall be vested the supreme
executive power of the State." The Governor's functions in making this
settlement are clearly executive and not at all legislative or judicial. Leg-islation
declares what shall be the rule of action for the future ; the execu-tive
power deals with present facts. So we conclude, without further dis-cussion,
that you have authority under the Statute to make the settlement
and execute receipt to the United States Government in the settlement, which
would be binding upon the State.
biennial report op the attorney general 77
Boundary Between North and South Carolina
January 28, 1928.
In re boundary between North and South Carolina.
In 1735, Commissioners under the appointment of two provinces, Nortli and
South Carolina, did run the line between these provinces. It began at the
sea thirty miles southwest of the mouth of the Cape Fear River. Its course
from that point was directly northwest to the thirty-fifth parallel of north
latitude ; thence due west to the South Sea. If, before reaching the thirty-fifth
parallel, it came within five miles of the Pee Dee River, it should then
run parallel with the Pee Dee River until it did reach the thirty-fifth degree.
The line that was run in this way, of course, went far beyond any dispute
in the existing Brunswick County, indeed, through Brunswick, Columbus,
and Robeson Counties this line was and is necessarily a northwest-south-east
line. You will find a map of this survey in 11 Colonial Records, page 80.
In 1915, Chapter 188 of the Public Laws, the Governor of this State was
authorized to appoint a commissioner and a sufticient number of chain bearers
to act with commissioner and chain bearers appointed by the State of South
Carolina and re-run and re-mark the boundary line between the State of
North Carolina and the State of South Carolina from the Atlantic Ocean to
the Waccamaw River, a distance of about eight miles.
Chapter 166. Public Laws of 1919, amended the Act of 1915 by requiring
the commissioners, when appointed, to extend the line beyond the "Waccamaw
River to Lumber River, a point on the State Line, a corner of the dividing
line between Columbus and Robeson Counties. The report of the commis-sioners
and their tracing of the line was required to be filed in the office
of the Secretary of State, and certified copies of the tracing must be certi-fied
to the Registers of Deeds for record in Brunswick and Columbus
Counties.
The matter was brought to the attention of Governor Bickett in February,
1920, and we had supposed that he had acted under these laws and that
the line had been properly delimitated.
It seems that the beginning point on the Atlantic Ocean, where the original
commissioners placed a supposedly permanent monument could, if that monu-ment
has disappeared, be easily determined by a reverse survey, as the line
through these counties was a true northwest-southeast line. Of course if
neither Governor Bickett nor Governor Morrison has acted in the matter,
you yourself have plenary authority to act now.
Bank Receiverships—Authority of Gove^inor
February 11, 1928.
In the matter of State Banks in the liands of receivers.
I have again considered the authority of any Department or officer of the
State Government to intervene in receivership proceedings against insolvent
State Banks before the Act of 1927 became effective.
As I told you orally, I think it is a necessary corollary from the authority
given the Corporation Commission in Section 17 of Chapter 4 of the Public
78 BIENNIAL REPORT OF. THE ATTORNEY GENERAL
Laws of 1921 that that body may and indeed should see that receiverships
instituted by it are properly conducted to a just and fair conclusion. It is,
under that Section, a party plaintiff to the action, and being such, it has
authority to see that a receivership is in all particulars conducted according
to law, not of its own authority, but from its right as a party to the action
to apply to the Court to make necessary orders in the control of the receiver
and his conduct in relation to the fund.
Where, however, a receiver is appointed in an action initiated by the de-positors
or stockholders of a bank, I think the better view is that only the
parties to the action have any right to suggest to the Court any necessary
order relating to the management of the funds of the bank by the receiver.
The reasons for this conclusion I suggested in my letter of January 28th on
this subject.
I know of no principle of law or equity which would enable the State to
intervene in a private action because of some general policy when the Leg-islature
itself had not acted upon this conception of public policy and author-ized
such intervention in the case of State banks.
I think it entirely proper for you, as Governor of the State, to suggest
to the Judges holding civil courts in the State the wisdom of exercising
more effective supervision and control over these receiverships. One method
which the Judges can adopt, if they choose, without additional legislation, is
to require of Clerks of the Superior Courts a calendar of receivership cases
then pending upon the civil docket of such court to be presented to the Judge
at the opening of each civil term in the county. He might, in doing this,
require a short history of the case so that he can readily perceive whether
any action should be taken by him. This, of course, is a mere suggestion
to be considered by you in determining whether you shall take any action
in the matter.
In cases where the Corporation Commission, before the Act of 1927, under
Section 17 of the Act of 1921, applied to the Court for the appointment of a
receiver of an insolvent State Bank and said Commission has not funds to
pay the cost of taking an active part in seeing that such receiverships are
properly conducted and properly closed, then your authority under the
emergency appropriation bill could be invoked to pay the expenses of such
investigation.
Public Officers—Double Office Holding
February IS, 1928.
A trustee of the North Carolina State College of Agriculture and Engi-neering
is a public officer, as has been determined by the Supreme Court of
North Carolina in Clark v. Stanley, 66 N. C, at page 65.
Membership on the State Board of Agriculture is also plainly a public of-fice.
If, therefore, you appoint a trustee of the State College a member of
the Board of Agriculture, and he qualifies as such member, then his office
as trustee of the State College is forfeited thereby.
Statute—Great Smoky Mountain Park Act
March 8, 1928.
On yesterday, you submitted to me a memorandum containing a number of
questions in relation to the recent act of the General Assembly providing for
BIENNIAL REPORT OF THE ATTORNEY GENERAL 79
the acquisition of parks in the Great Smoky Mountains. This morning in the
meeting of the Governor and Council of State called to consider this matter,
I undertook to give general answers to some of the questions which were
troubling you. I now re-state the conclusions I have reached and as given
to you and the Council of State this morning.
I undertake to summarize the questions submitted and give my answers
to them seriatim.
(1) What is the duty of the Governor and Council of State
under sections 26 and 26 1^ of the Smoky Mountain National
Park Act with respect to an independent investigation before the
facts are found as therein provided?
The Governor and Council of State constitute an official body created by
the Constitution. This body has great and broad powers. Many and im-portant
duties are committed to its membership. There are no specific rules
either in the Constitution, the statutes or the decisions of the Court gov-erning
the manner in which the business of this body shall be conducted.
It has a freedom of action commensurate with the unusually important
duties committed to the care and decision of its members.
In many respects its functions are quasi judicial. They are so here under
sections 26 and 26 1^ of chapter 48, Public Laws of 1927. It is their duty
under these sections to consider the making of certain findings of fact. It
is for them to determine what kind of an investigation they will conduct
in reaching their conclusions. They will, of course, in doing so exercise that
degree of diligence and that wise judgment which men would ordinarily use
in the conduct of usual business operations of an equal magnitude. In addi-tion
to that they will consider that they are public officials and acting for the
whole citizenship of the State.
(2) What is the meaning of the term "adequate financial provision" as
used in sections 26 and 26^^?
"Adequate" means "equal to some requirement ; fully sufficient." When
standing alone financial provision does not always mean money actually in
hand. It is apparent from the context that it does not mean money actually
in hand here.
You recall that the same General Assembly passed the act with reference
to holding a State Fair. It conditioned setting aside certain land for that
purpose upon the donation of no less than $200,000.00 by certain organiza-tions
and citizens. In that case, the language used showed that the actual
donation and tuiming over of money was intended.
Such is not the case here. The whole act shows that it was not intended
that all of the money needed toward the purchase of the land within the park
area should be actually obtained and deposited with some agency. On the
contrary, it is apparent that the intent is different, certainly with respect
to the bond issue authorized for the State. My opinion, then, is that "ade-quate
financial provision" as here used means such financial commitments to-ward
the cost of acquiring the necessary property within the park area
deemed by the Governor and Council of State to be valid and enforceable as
will probably result in the consummation of the project. Whether these
commitments are of the necessary nature and character is a question of
fact for the determination of the Governor and Council of State.
(3) If the facts have been found in accordance with sections 26 and
26%, can the Governor and Council of State refuse to issue the bonds and
80 BIENNIAL REPORT OF THE ATTORNEY GENERAL
,pay over the money if it should later appear that some insurmountable
obstacle to the project has intervened?
The statute would have been clearer on the subject if it had been spe-cifically
set out that the bonds authorized were not to be issued until it
had been established that title to the requisite acreage could be acquired
by purchase or condemnation proceedings and the Secretary of the Interior
has signified his readiness to accept the property for park purposes upon
delivery of deed for the land. However, the statute must be construed as
a whole and from all of its parts the duties of the Governor and Council
of State ascertained.
Its general purpose is the acquisition of a sufficient acreage within the
area acceptable to the Secretary of the Interior and which will be received
by him for the United States Government and maintained as a permanent
park. This idea runs through he whole of the statute. By section 17 the
fund drived from the bond issue is to be used wholly in the acquisition, that
is, purchase, of lands within the boundary lying within the State. The Cost
of the proceedings must be borne from other sources.
By section 25 it is made the duty of the Park Commission to institute a
condemnation proceeding against all persons owning or claiming lands
within the area. This condemnation proceeding is to be one in which all
of these persons are joined as parties defendant and not against them singly.
The term of two years is allowed the State in which to pay the award made.
The State may elect not to acquire the land and would be liable for only
the cost and a reasonable attorney's fee. My opinion is that these costs
must come from some source other than rne bond issue.
I am of opinion that it was the purpose and intent of the General As-sembly
that the proceeds of the bond issue authorized should be used for
the consummation of the park project described in the act. It was not in-tended
that the money received from this bond issue should be used in the
purchase or acquisition of parcels of land detached or otherwise of such
insufficient quantity as would not be acceptable to the Secretary of Interior
for the purpose of creating the park as intended. The findings of fact
under sections 26 and 261/2 of the act would not preclude the Governor and
Council of State and the Treasurer from declining to issue the bonds should
it appear that the bond issue, with the other funds available, would not
result in the consummation of the park project and its acceptance by the
United States Government.
It is my opinion that the proper construction of the act is as herein
stated. What would be the result should others take a different view? The
North Carolina Commission, if it should be so advised, might undertake
to require the issuance of the bonds by an action of mandamus against
the Governor and Council of State and the State Treasurer. If such action
should be taken, it will then be for the Supreme Court to pass upon the
matter. If it should hold, otherwise, than in accordance with the opinion,
I have here given, it would be but declaring what is the will, purpose and
intent of the