North Carolina Attorney General reports

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OF THE
University of NortK Carolina
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FOR USE ONLY IN
THE NORTH CAROLINA COLLECTION
.
BIENNIAL REPORT
OF THE
ATTORNEY-GENERAL
OF THE STATE OF NORTH CAROLINA
1918-1920
JAMES S. MANNING
ATTORNEY-GENERAL
FRANK NASH
ASSISTANT ATTORNEY-GENERAL
RALEIGH
Edwards & Broughton Printing Co.
State Printers
1920
Digitized by the Internet Archive
in 2011 with funding from
Ensuring Democracy through Digital Access (NC-LSTA)
http://www.archive.org/details/biennialrep1918attrny1920
LIST OF ATTORNEYS-GENERAL SINGE THE ADOPTION OF
THE CONSTITUTION IN 1776
Term of Office
Avery, Waightsill 1777-1779
Iredell, James 1779-1782
Moore, Alfred 1782-1790
Haywood, John 1791-1794
Baker, Blake 1794-1803
Seawell, Henry 1803-1808
Fitts, Oliver 1808-1810
Miller, William 1810-1810
Burton, Hutchins G 1810-1816
Drew, W'fUiam. 1816-1825
Taylor, James F 1825-1828
Jones, Robert H 1828-1828
Saunders, Romulus M 1828-1834
Daniel, John R. J 1834-1840
McQueen, Hugh 1840-1842
Whitaker, Spier 1842-1846
Stanly, Edward 1846-1848
Moore, Bartholomew F 1848-1851
Eaton, William 1851-1852
Ransom, Matt. W 1852-1855
Batchelor, Joseph B 1855-1856
Bailey, William H 1856-1856
Jenkins, William A ". 1856-1862
Rogers, Sion H. 1862-1868
Coleman, William M 1868-1869
Olds, Lewis P 1869-1870
Shipp, William M 1870-1872
Hargrove, Tazewell L 1872-1876
Kenan, Thomas S 1876-1884
Davidson, Theodore F 1884-1892
Osborne, Frank T 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-
Go
LETTER OF TRANSMITTAL
State of North Carolina,
Department of Attorney General,
Raleigh, December 1, 1920.
To His Excellency, T. W. Bickett, Governor,
Raleigh, N". C.
Dear Sir:—In compliance with sections 4409-4410, Revisal of 1905,
I herewith submit the biennial report of this department for the years
1918-1919 and 1919-1920.
Respectfully submitted,
James S. Manning,
Attorney General.
EXHIBIT I
List of Actions in the Nature of Quo Warranto Brought by Pri-vate
Relators in the Name of the State Upon Leave Granted
by the Attorney General.
1. S. B. Edwards, relator, against J. P. Arledge; to try title to office
of the Clerk Superior Court of Polk County, JNT. C. ; leave granted Dec.
21, 1918.
2. W. P. Robertson, relator, against Frank Jackson; to try title to
office of sheriff of Polk County, N. C; leave granted Dec. 20, 1918.
3. A. 0. Bradley, relator, against ; to try title
to office of Register of Deeds of Clay County, N. C. ; leave granted
Feb. 7th, 1919.
4. Lee Conley et als, relators, against Byron Conley et als ; action on
guardian bond; leave granted April 28, 1919.
5. Ed. 0. Hall, relator, against L. A. Byrd ; forfeit office of High-way
Commissioner of Wayne County, N. C. ; leave granted June 19,
1919.
6. J. jST. Buie, relator, against W. P. McAllister ; to try title to office
of Supt. of Public Welfare of Robeson County, N. C. ; leave granted
Nov. 3, 1919.
7. Julia M. Alexander, relator, against Edward W. Pharr; forfei-ture
of office, member of the Legislature; leave granted Jan. 28, 1920
8. Julia M. Alexander, relator, against J. Lawrence Jones ; penalty
for double office holding; leave granted Jan. 28, 1920.
Civil Actions Disposed of
Bickett v. Tax Commission, 177 N. C, 433.
Board of Agriculture v. Drainage District, 177 N. C, 222.
Motor Co. v. Flynt, 178 K C, 399.
Brown v. Jackson, 179 N". C, 363.
Jenkins v. Board of Elections, 180 N. C, .
Civil Case Pending in the Supreme Court of United States.
Motor Company v. Flynt, 178 N. C, 399.-
EXHIBIT II
List of Cases Argued ky the Attorney General and Assistant At-torney
General, Before the Supreme Court, Fall Term, 1918,
Spring Term, 1919, Fall Term, 1919, and Spring Term, 1920.
AUGUST TERM, 1918
(176 K C. Report, pages 702 et sequitur)
1. State v. Fulcher; from Vance; seduction; verdict, guilty; defend-ant
appealed; affirmed.
2. State v. Mclver; from Lee; statutory burglary; verdict, guilty;
defendant appealed; affirmed.
2. State v. Harrington; from Lenoir; larceny; verdict, guilty; de-fendant
appealed ; new trial.
3. State v. Tyndall; from Lenoir; guilty; dismissed under rule 17.
4. State v. Cook; from Franklin; seduction; verdict, guilty; defend-ant
appealed; affirmed.
5. State v. Pace ; from Franklin ; guilty ; dismissed under rule 17.
6. State v. Johnson; from Cumberland; murder second ' degree
;
guilty; defendant appealed; affirmed.
7. State v. Geneva Jones; from Durham; murder second degree;
guilty; defendant appealed; affirmed.
8. State v. George W. Craig; from Rockingham; insanity; reversed.
9. State v. Spencer, from Forsyth; murder first degree; guilty; de-fendant
appealed; affirmed.
10. State v. Carroll; from Rockingham; selling liquor; guilty; de-fendant
appealed; affirmed.
11. State v. Atwood; from Forsyth; murder second degree; guilty;
defendant appealed; affirmed.
12. State v. Rhodes; from Davidson; docketed and dismissed.
13. State v. Hege; from Davidson; docketed and dismissed.
14. State v. Fritz; from Davidson; docketed and dismissed.
15. State v. Wentz; from Union; murder second degree; guilty; de-fendant
appealed; affirmed.
16. State v. Harrington; from Richmond; docketed and dismissed.
17. State v. Lineberger and Clippard; from Gaston; distilling;
guilty ; defendant appealed ; affirmed.
IS. State v. Oakley; from Wilkes; manslaughter; guilty; defend-ant
appealed; reversed.
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 9
19. State v. Keever; from Catawba; manslaughter; guilty; defend-ant
appealed; affirmed. (177 N\ C, 114.)
20. State v. Wilson; from Yadkin; larceny; guilty; defendant ap-pealed;
affirmed.
21. State v. Charlie Jones; from Buncombe; docketed and dis-missed.
22. State v. Lunsford; from Cherokee; larceny; defendant appealed;
affirmed. (177 K 0., 117.)
23. State v. Fain; from Cherokee; barn burning; guilty; defendant
appealed; affirmed. (177 K 0., 120.)
SPRING TERM, 1919
(177 !N". C. Report, page 551 et sequitur)
24. State v. Bush; from Pasquotank; liquor; guilty; defendant ap-pealed;
affirmed.
25. State v. Dunning, from Bertie; assault; defendant appealed; re-versed.
26. State v. Lewis, from Wayne; rape; defendant appealed; affirmed.
27. State v. Wallace ; from Craven ; docketed and dismissed.
28. State v. Finch; from Wake; manslaughter; defendant appealed;
new trial.
30. State v. Harris; from Wake; docketed and dismissed.
31. State v. Pitts, from Forsyth; liquor; defendant appealed; af-firmed.
32. State v. Simmerson ; from Forsyth; liquor; defendant appealed;
affirmed.
33. State v. Davis, from Forsyth; murder in the first degree; de-fendant
appealed; affirmed.
34. State v. Hardeu & Beale ; from Forsyth ; highway robbery ; de-fendants
appealed; affirmed.
35. State v. Butler; from Guilford; liquor; defendant appealed;
affirmed.
36. State v. Brady; from Guilford; attempted abortion; defendant
appealed; affirmed.
37. State v. Coble; from Guilford; murder second degree; defendant
appealed; affirmed.
38. State v. Canup; from Mecklenburg; motion to docket and dis-miss.
39. State v. Wilson and Matthews; from Buncombe; liquor; af-firmed.
40. State v. Gash ; from Buncombe ; manslaughter ; defendant ap-pealed;
affirmed.
10 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
41. State v. Ditmore ; from Graham; refusal to assist sheriff; spe-cial
verdict ; appealed by the State ; reversed.
•42. State v. Evans; from Cumberland; murder second degree; de-fendant
appealed; affirmed.
FALL TERM, 1919
(178 'N. C. Report, page 671 et sequitur)
43. State v. Windley; from Beaufort; embezzlement; guilty; defend-ant
appealed; new trial.
44. State v. Lamm ; from Nash ; docketed and dismissed.
45. State v. Exuni; from Nash; docketed and dismissed.
46. State v. Marks & Farmer; from Halifax; abduction; defendants
appealed ; affirmed.
47. State v. Southerland ; from Wayne ; murder second degree ; de-fendant
appealed ; affirmed.
48. State v. Godley; from Johnston; docketed and dismissed.
49. State v. Stancil; from Pitt; larceny; defendant appealed; af-firmed.
50. State v. Simonds; from Pitt; liquor; defendant appealed; af-firmed.
51. State v. Mincher; from Lenoir; larceny; defendant appealed;:
affirmed.
52. State v. Joe Baldwin; from Wake; liquor; defendant appealed;-
affirmed.
53. State v. Hayes Baldwin; from Wake; liquor; defendant ap-pealed;
affirmed.
54. State v. Medlin; from Franklin; docketed and dismissed.
55. State v. O'Higgins; from Cumberland; abduction; appeal by the-defendant
; affirmed.
56. State v. Bryan; from Brunswick; murder second degree; defend-ant
appealed; affirmed.
57. State v. Dupree; from Hoke; docketed and dismissed.
58. State v. Latta; from Durham; liquor; defendant appealed; af-firmed.
59. State v. Phillips & Key; from Surry; F. & A.; defendants ap-pealed;
affirmed.
60. State v. Cain et als; from Surry; murder first degree; defend-ants
appealed; affirmed.
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 11
61. State v. Medley & Robertson; from Forsyth; robbery; defend-ants
appealed; affirmed.
62. State v. Rumple et als; from Forsyth.; riot; defendants appealed;
affirmed.
63*. State v. Prevo ; from Davidson ; town ordinance ; defendant ap-pealed;
reversed.
64. State v. Moon ; from Guilford ; bigamy ; defendant appealed ; af-firmed.
65. State v. Daniel; from Davidson; F. & A.; defendant appealed;
affirmed.
6Q. State v. Herret; from Davidson; docketed and dismissed.
67. State v. Little; from Anson; murder first degree; defendant ap-pealed
; new trial.
68. State v. Reid; from Anson; arson; defendant appealed; new
trial.
69. State v. Bridges; from Gaston; secret assault; defendant ap-pealed
; affirmed.
70. State v. Wiseman ; from Cleveland ; murder first degree ; defend-ant
appealed; affirmed.
71. State v. Mull; from Burke; liquor; defendant appealed; af-firmed.
72. State v. Killian; from Caldwell; liquor; defendant appealed;
new trial.
73. State v. Coleman; from Burke; liquor; defendant appealed; af-firmed.
74. State v. Nixon & Johnson ; from Randolph ; liquor ; affirmed.
75. State v. Lovelace; from Rutherford; murder first degree; defend-ant
appealed; affirmed.
76. State v. Lowe; from Buncombe; lottery; State appealed; re-versed.
77. State v. Yearwood & Tabor; from Graham; arson; defendants
appealed ; affirmed.
78. State v. Palmer; from Haywood; arson; defendant appealed;
affirmed.
79. State v. Kirkland; from Swain; larceny; defendant appealed;
new trial.
80. State v. Caylor; from Swain; larceny; defendant appealed; af-firmed.
81. State v. Dalton; from Macon; murder first degree; defendant
appealed ; new trial.
12 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
SPRING TERM, 1920
(179 K C. Report, page 700 et sequitur)
82. State v. Sessoms; from Tyrrell; liquor; defendant appealed; af-firmed.
83. State v. Burnett; from Bertie; murder first degree; State ap-pealed
; affirmed.
84. State v. Bailey et als; from Johnston; murder second degree;
defendants appealed; affirmed.
85. State v. Perry & Horton; from Chatham; liquor; defendants ap-pealed;
affirmed.
86. State v. McLawkorn ; from Pitt; liquor; defendant appealed;
affirmed.
87. State v. Publishing Co.; from Pitt; libel; defendants appealed;
new trial.
88. State v. Walker; from Lenoir; keeping bawdy house; defendant
appealed ; affirmed.
89. State v. Walker; from Lenoir; docketed and dismissed.
90. State v. Hicks; from Sampson; selling wine; defendant ap-pealed;
affirmed.
91. State v. Hines; from Lenoir; murder second degree; defendant
appealed; affirmed.
92. State v. Taylor; from Lenoir; docketed and dismissed.
93. State v. Taylor and Taylor; from Lenoir; docketed and dis-missed.
94. State v. Shoaf ; from Forsyth; selling on Sunday; defendant ap-pealed;
reversed.
95. State v. Cline; from Forsyth; rape; defendant appealed; new
trial.
96. State v. Hobson; from Guilford; docketed and dismissed.
97. State v. Crowder and Liles; from Anson; liquor; defendants ap-pealed;
affirmed.
98. State v. Simonds; from Anson; certiorari; denied.
99. State v. Kirkpatrick ; from Mecklenburg; milk ordinance; de-fendant
appealed; affirmed.
100. State v. Gheen ; from Lincoln ; liquor ; defendant appealed ; af-firmed.
101. State v. Connor; from Iredell; murder first degree; defendant
appealed; affirmed.
102. State v. Fink; from Cabarrus; town ordinance; defendant ap-pealed;
reversed.
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 13
103. State v. Alexander; from Iredell; murder first degree; defend-ant
appealed; affirmed.
104. State v. Beam; from Iredell; liquor; defendant appealed; new
trial.
105. State v. Razook ; from Henderson ; town ordinance ; defendant
appealed ; affirmed.
106. State v. Hutchins; from Yadkin; docketed and dismissed.
107. State v. Yoder; from Buncombe; docketed and dismissed.
SUMMARY OF CASES
Affirmed 65
jSTew trial or reversed on defendant's appeal 17
Reversed on State's appeal 2
Appeal dismissed 22
Motion certiorari, denied 1
Total 107
CRIMINAL STATISTICS
STATEMENT A
The Following Statement Shows the Criminal Cases Disposed of During the
Fall Term, 1918, and Spring Term, 1919
County
Alamance
Alexander*---
Alleghany
—
Anson
Ashe
Avery
Beaufort
Bertie
Bladen
Brunswick...
Buncombe...
Burke
Cabarrus
Caldwell
Camden
Carteret
Caswell
Catawba
Chatham
Cherokee
Chowan.
Clay
Cleveland
Columbus
Craven
Cumberland.
Currituck
Dare
Davidson
Davie
Duplin
Durham
Edgecombe..
Forsyth
Franklin
Gaston
Gates
Graham
Granville*. _-
Greene
Guilford
Halifax
Harnett
Haywood
Henderson..
Hertford
Hoke
Hyde
78
14
10
28
62
21
32
18
1
22
247
69
60
39
59
12
32
11
132
11
17
86
33
58
15
3
6
30
25
42
110
21
146
19
115
5
79'
20
7
78
25
29
76
51
7
3
2
40
55
15
13
164
24
22
12
4
24
23
4
27
13
9
2
56
21
121
22
81
143
66
124
25
77
13
73
11
56
52
16
2
24
40
45
1
152
16
11
100
64
19
67
68
14
33
346
87
77
46
4
82
30
36
38
125
20
16
139
50
172
37
4
6
51
32
111
242
82
252
44
182
14
73
84
18
121
71
36
72
73
44
45
3
20
120
17
8
62
44
11
47
47
16
32
287
74
61
47
42
31
28
26
89
10
5
87
36
107
25
3
5
45
23
50
107
68
234
33
145
10
45
67
14
102
77
32
42
56
37
37
3
u O
V Q,
OQ
8
49 9
109 16
12
18 1
1 1
30
4
20 10
13
BIENNIAL REPORT OF THE ATTORNEY-GENERAL
STATEMENT A—Continued
15
County
"J:
T3
o
"o O
a
-3
s
3
B
">
ao
O
a
'3
<
o
£
"o
z
"3
'£ 05
C O
J3 XL
oS
Iredell
Jackson -
71
46
17
12
18
93
9
36
48,
38'
38
112
37
12
15
38
23
14
3
43
5
14
14
22
23
74
50
64
21
119
38'
18
48
7
26
52
92
35
28'
6
13
16
140
3
8
. 16
42
83
67
47
32
35
1
9
19
14
166
7
2
4
98
49
26
31
32
219
16
33
41
107
69
286
37
18
25
93
56
42
11
94
8
38
46
36
26
68
74
78
145
67
175
73
25
94
31
33
53
96
34
34
10
39
37
259
15
31
16
69
75
1S4
50
32
8
2
. 40
5
7
3
42
1
4
10
1
1
6
4
8
3
7
13
2
10
2
8
8
2
3
4
5
4
4
4
4
27
1
2
9
14
19
3
1
83
43
26
10
27
155
12
22
36
107
49
219
20
15
15
60
66
39
13
74
8
28
35
23
26
36
38
72
104
49
137
47
24
67
IS
33
30
89
•:0
6
8
30
27
214
16
14
11
45
52
149
45
31
5
7
IS
1
18
Jones. ... ... 1
5
32
4
3
8
9 11
71 1
Macon... 13
4
69
34
216
McDowell.. .
Mecklenburg
Mitchell
7
52
4
1
12
16
55
17
2
7
10
59
43
29
9
57
3
28
40
17
19
52
13
30
91
29
64
43
7
47
25
15
1
8
1
10
8
30
25
146
13
25
19
1
2
3
Moore .
Nash... . ... ..
9
24 1
4
11 14 1
11
10
11
3
4
5
5
Pitt 20
9
8
21
11
22
22
1
29
9
2
7
9
9
21
5
7
6
45
18
40
1
Polk
30
9
24
12
7
14
2
2
11
1
6
8
28
Tyrrell
Wake*
16
1
11
13
19
6
2
955
3
4
22
24
35
2
36
6
136
6
1
Wilkes
Totals 4,014 3,481 29 6,943 581 5,227 1,255 90
*One corporation tit each sign.
In computing totals, add corporations to race and sex.
16 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
Recapitulation of Statement A
7,527
6,943
581
3
Total...
4,014
3,481
29
3
7,527
White
Total
5,227
955
1,255
90
7,527
Convictions, including submissions
Total 7,527
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 17
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10
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33 4
20 1
14 1
1
3
44 120 1
11
12
8
8
9
Caldwell --
9
17
29
7
2
9
20
6
16
2
1
3
7
5
21
51
35
2
2
Clav
39
96
132
46
1
4
1
Davidson. —
Davie.. - -
Duplin -- . _
30
16
55
112
78
257
88
71
20
1
52
30
139
76
26
1
44
45
65
11
57
10
16
28
31
152
1
15
3
8
8
8
22
2
23
10
2
13
7
42
37
18
12
16
10
6
8
11
10
26
4
19
6
3
31
6
88
3
2
Granville. ... -. . ..
Greene -. . .
Guilford
13
2
92
1
14
2
19
9
3
Halifax . _ _
Harnett.. .. . .
Hoke
Hyde
21
21
Johnston
8
55
8
7
Lenoir . . . . 49
34 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
STATEMENT C—Continued
County
53
Lincoln
Macon
Madison._
Martin
McDowell
Mecklenburgt-
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
78
132
65
22
91
189
40
35
31
41
20
30
6
42
1
37
16
6
2
13
23
182
2
25
24
60
40
40
9
55
11
45
89
135
63
34
110
337
39
59
54
94
50
68
14
95
11
91
216
28
50
26
66
60
55
16
80
11
54
4
103
10
Totals.
22
11
41
103
61
54
8
91
29
27
51
5
34
50
84
96
32
4
23
40
188
4
7
7
23
71
62
55
41
22
15
58
45
18
63
20
33
30
13
70
35
2
9
15
1
8
6
19
62
247
24
32
40
15
107
10
1
39
25
92
134
73
114
39
119
52
36
113
42
36
57
95
100
40
9
38
95
400
28
33
7
58
79
156
29
25
66
73
62
87
33
117
33
29
79
24
36
47
94
83
36
315
22
24
7
43
52
135
57
32
5,097 6,835 1,056
*One corporation each. fFive corporations.
In computing totals, add corporation to race and sex.
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 35
Recapitulation op Statement C
Total number criminal actions disposed of
Males
Females
Corporations
Total
White
Colored
Indian
Corporations
Total
Convicted
Acquitted
Nolle Pros
Otherwise disposed of
Total
,636
641
5 097
4 152
28
8
6 835
1 056
1 362
32
9,285
9,285
36 BIENNIAL EEPOKT OF THE ATTORNEY-GENERAL
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46 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
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50 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
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52 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
STATEMENT E
From
July 1, 1918,
to
July 1, 1919
From
July 1, 1919,
to •*
July 1, 1920
Number of criminal actions disposed of.
Males
Females
Corporations
Totals-
White
Colored
Indians
Corporations
Totals.. _
Convictions, including submissions.
Acquitted
Nolle pros
Otherwise disposed of
Totals.
Murder—first degree
Murder—second degree
Manslaughter
Rape
Assault with intent to rape
Arson
Burglary—first degree
Burglary—second degree
Forgery
Larceny
Intoxicating liquors
Other crimes and misdemeanors.
Totals
6,943
581
3
4,014
3,481
29
3
5,227
955
1,255
90
13
134
73
28
34
4
51
113
1,328
1,011
4,738
7,527
7,527
8,636
641
5,097
4,152
28
7,527
7,527
6,835
1,056
1,362
32
9
170
74
31
34
5
1
44
160
1,426
1,263
6,068
9,285
9,285
9,285
9,285
9,285
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 53
STATEMENT F
Alphabetical List of Chimes Committed from July 1, 1918, to July 1, 1920
Name of Offense
From
July 1, 1918,
to
July 1,1919
From
July 1, 1919,
to
July 1,1920
Abandonment
Abduction
Abortion
Affray
Arson
Assault and battery
Assault with deadly weapon
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
Disorderlyhouse
Disposing of mortgaged property
Disturbing meetings
Election laws
Embezzlement *
Escape
Failure to list taxes
Failure to work public roads
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
Obstructing public highway
81
11
7
246
4
532
748
34
1
2
51
14
581
44
34
37
12
242
9
94
3
18
13
134
24
99
24
7
342
5
719
1,016
34
3
2
47
61
31
109
1
85
5
116
18
129
160
224
433
4
242
3
9
41
1,263
1,426
1
3
10
74
^7
170
29
54 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
STATEMENT F—Continued
Name of Offense
Obstructing river
Official misconduct-
Perjury
Rape
Resisting officer
Riot
Robbery
School laws
Seduction
Slander
Trespass
Miscellane ous
Totals.
From
July 1, 1918,
to
July 1,1919
7,527
From "*
July 1,1919,
to
July 1,1920
17 38
28 31
48 67
2 9
58 100
1 3
42 72
23 34
91 141
621 842
BIEXXIAL REPORT OF THE ATTORXEY-GEXERAL 55
Fees Transmitted by Attorney-General to State Treasurer from August Term, 1918, through February Term, 1920
Fall Term, 1918
89 Fuleher
90 Molver
241 Cooke
273 Johnson
347 Carroll.-
348 Atwood
433 Lineburger and Clifford
498 Keever
577 Lunsford
578 Fain 1...
12.55
14.25
15.10
13.40
13.00
15.95
27.00
19.00
14.00
15.00
Si'RiNG Term, 1919
1 Bush
209 Ogleston & Perry...
345 Pitts
346 Simmerson
377 Butler
378 Brady
379 Coble
529 Wilson & Matthews
530 Gash
577 Ditmore
13.40
24.70
12.50
15.00
12.50
13.75
15.10
10.00
15.10
18.55
Fall Term, 1919
90 Sutherland
161 Stancill
162 Simons
209 Mincher
241 Joe Baldwin
242 Hayes Baldwin
273 O'Higgins
274 Bryant
313 Latta
345 Phillips & Key
346 Cain et al
347 Medley
34S Rumple et al
378 Moon
379 Daniel
433 Bridges
89 Marks & Farmer....
466 Mull
468 Coleman.
469 Nixon & Johnson..
497 Lovelace
529 Lowe
577 Yearwood & Tabor
578 Palmer
580 Caylor
13.75
15.10
15.00
15.00
17.50
17.50
15.00
18. 75
12.50
23.75
37.50
13.75
78.75
16.25
13.75
20.00
30.00
13.75
15.00
25.00
22.50
16.25
32.50
15.00
13.75
56 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
Fees Transmitted by Attorney-General to State Treasurer from August Term, 1918, through February Term, 1920—
-
Continued
Spring Term, 1920
1 Sessoms
90 Bailey et al (execution for balance, 828.50).
161 McLawhorn
211 Hicks—
212 Hines
468 Alexander
497 Razook—
498 Hutchins
529 Yoder
S 15.00
24.00
13.75
13.00
17.50
15.00
10.00
10.00
Civil Cases
Board of Agriculture v. Drainage District
Motors Corporation v. Flynt, Sheriff..----
Brown v. Jackson
Total
3.75
15.00
25.00
S999.45
OPINIONS TO THE GOVERNOR
Judges Special Tekm—Compensation.
May 23, 1919.
His Excellency, Governor Bickett, Raleigh, N. C.
Dear Governor:—Replying to your inquiry for my opinion upon the mat-ter
in a letter from Judge Webb to you, I beg to say that after consideration
of the several statutes of the State relating to the salary and expenses of
the Superior Court Judges, I have reached the conclusion that a Superior
Court Judge, under the Act of 1913, Chapter 63, which is brought forward
in the Consolidated Statutes, contemplates a rotation system of twenty weeks
per term for each district of forty weeks per year for each judge, and it
provides that where a judge is in a district to which has been assigned less
than twenty weeks of court under this system of rotation, that he may be
directed by you to hold extra weeks without compensation until he has held
his full twenty weeks for the term. It seems to me that this is made a part
of the rotation system of the State and that the expenses of the judge in
holding these extra weeks are incident to rotation, and that he would be en-titled
to charge in his expenses the expense of such extra weeks, and this
should be paid by the State Auditor upon his certificate, not exceeding, of
course, the total sum of $1,500 per year under the Act of 1919.
At one time, if you recall, the act of the Legislature provided that the
judges should be paid actual expenses by the county for holding extra terms.
That was changed later and he was paid $100 per week by the county in
which the extra term was held, which was thought by the Legislature to
be sufficient to cover his actual expenses. Then came the Act of 1913 above
referred to, which was a legislative expression of what it considered to be
the rotation system of the State, to-wit: by dividing the State into twenty
districts and by assigning the judge in each district a certain number of
weeks or courts for each of the Spring and Fall Terms, then there was con-tained
this section, provided that where a judge held the courts of a district
for less than twenty weeks, he could be required by you to hold extra weeks
up to the amount of twenty weeks without compensation.
The Act of 1919 provides that the expenses of the judges, incident to ro-tation,
should be paid by a warrant issued by the Auditor, not exceeding
$1,500 a year, the judge certifying his actual expenses to the Auditor.
The question is whether the holding of extra weeks by a judge hold-ing
the courts of a district where there are less than twenty weeks assigned
to the district, is incident to rotation, and whether his expenses should be
paid as his expenses for each week of the terms of court in the district in
which he is presiding. As heretofore stated to you, I have reached the con-cluson
that such extra weeks, necessary to bring his number of weeks of
court up to twenty, are incident to the rotation system as outlined in the
Act of 1913.
Yours very truly, James S. Manning,
Attorney-General.
58 biennial report of the attorney-general
Governor's Authority to Order Investigation—Riot.
September 5, 1919.
Governor T. W. Bickett, Raleigh, N. C.
Dear Governor:—I have your request that I advise you in reference to
the letter of Mr. J. F. Newell, of Charlotte, N. C, to you under date of
September 3rd, in which letter Mr. Newell appeals to you to originate some
machinery of the law by which the recent unfortunate disturbance in Char-lotte
may be investigated and the truth ascertained.
The law-making body of the State, acting under the Constitution, has
prescribed certain methods of investigation and has conferred upon certain-officers
the duty to make such investigation.
It seems that in Mecklenburg County the coroner of the city is very ill,
and so is the clerk of the court. There remains the grand jury, which was
in session at the time of this occurrence, and also the solicitor.
Neither the Constitution nor the statute laws of the State confer upon you
any power to originate any investigation or to devise any machinery upon
which any investigation can be made. The most that you can do is to call
the matter to the attention of the solicitor of the district, but it is evident
from the letter of Mr. Newell that the solicitor is fully advised of the situa-tion
in Mecklenburg County.
While I quite agree with Mr. Newell that such disturbances of the public
peace and order as occurred recently in Charlotte should be fully investigated
to the end that all persons who violate the laws of the State should be
made to answer for such violations, yet it must be manifest that the truth
will be more accurately ascertained when the public is less excited.
You, of course, have no power to change the laws of the State or to origi-nate
new methods not authorized by the laws of the State.
Yours very truly, James S. Manning,
Attorney-General.
Boundaries Between North and South Carolina.
February 21, 1920.
Hon. T. W. Bickett, Governor, Raleigh, Nor'th Carolina.
Dear Sir:—
In re: Boundary oetween North Carolina and South Carolina
in Brunswick County.
The Secretary of State, with whom we conferred, was under the impres-sion
that the Legislature authorized the Governor of North Carolina to ap-point
a commission to meet a like commission appointed by the Governor of
South Carolina, to determine the exact location of this line. We have
looked through the public laws and resolutions, as well as the public-local
laws since 1911, and find that no such act or resolution, if passed, has been
indexed. The Revisal, however, section 5315, authorizes the Governor to
appoint two commissioners, a surveyor, a sufficient number of chain bearers,
on the part of the State of North Carolina, to act with the commissioners
or surveyors appointed or to be appointed by any of the contiguous States of
Virginia, Tennessee, South Carolina and Georgia, to re-run and re-mark, by
some permanent monuments at convenient intervals, not greater than five
miles, the boundary lines between this State and any of the said States.
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 59
In 1735, commissioners of the two provinces of North and South Carolina
did run this line and fix it so definitely as that if the starting point at the
Atlantic Ocean was made a permanent monument, there need be no difficulty
in ascertaining the exact location of the line in Brunswick County. This
line was to begin at the sea thirty miles southwest of the mouth of the Cape
Fear River, run thence in a northwest course to the 35th parallel of north
latitude; thence- due west to the South Sea. If, before reaching the 35th
parallel, it came within five miles of the Pee Dee River (now Yadkin), it
should then run a parallel with the Fee Dee at a distance of five miles to the
35th degree, etc. Of course, if the original starting point has been obliter-ated
in any way, it might be necessary to appoint commissioners under the
above cited section of Revisal.
You will find a map in 11 Colonial Records, p. 80-, which shows the line
established by the commissioners was a true northwest and southeast line.
We return herein Mr. Heffner's letter to you.
Yours very truly, James S. Manning,
Attorney-General.
Pension—Increase of 1919
His Excellency, Governor Bickett, Raleigh, N. C.
April 10, 1920.
Dear Governor:—Mr. W. R. Matthews of Charlotte, North Carolina, Chair-man
of the Committee on Confederate Pensions of the present House of Rep-resentatives
of North Carolina, has asked me for the construction of chap-ter
227 of the Act of 1919 and also chapter 204, Public Laws of 1917, and par-ticularly
desiring my opinion as to when the increases in the pensions pro-vided
in these two acts became effective.
The Act of 1917 increased the pension of pensioners in the first grade
from $72.00 to $85.00, and there were also in said Act increases in the 2nd,
3rd, and 4th grade pensioners. The Act of 1919 increased all of the grades
$15.00 per annum, making the first grade $100.00 per annum.
The Act of 1917, section 2, is as follows:
"That in no year shall the amount paid for pensions exceed
the sum of five hundred and seventy-five thousand dollars. That
the State Auditor is hereby authorized, empowered, and directed
to so apportion, distribute, and divide the money provided by
this act, and to issue warrants to the several pensioners, pro
rata, in their respective grades, that the entire annual appro-priation
of five hundred and seventy-five thousand dollars shall
be paid each year to the pensioners, notwithstanding the amounts
so paid be in excess of the amounts fixed in section one of this
act for the several grades: Provided, that the total appropriation
under this or any other act shall not exceed the sum of five
hundred and seventy-five thousand dollars ($575,000) annually."
This Act was ratified on the 6th day of March, 1917. Chapter 226, Public
Laws of 1919, ratified 10th day of March, 1919, amended section 2 of chapter
204 of the Public Laws of 1917 by striking out "five hundred and seventy-five
dollars" and inserting "six hundred and fifty dollars" where the same occurs,
but section 2 of chapter 227 of the Acts of 1919, ratified the same day, to-wit,
10th of March, 1919, provides as follows:
60 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
"The State Auditor shall transmit to the clerks of the Superior
Court of the various counties warrants for pensioners for one-half
of the yearly pensions between the first and fifteenth of
June, and for one-half the yearly pensions between the first and
fifteenth of December of each year."
Section 2 of the Act of 1917 is unusual in the legislation of the State in acts
making appropriations for State purposes, in that the Legislature specifi-cally
and emphatically directed that the sum of $575,000 shall be paid in
pensions, and if that amount is not entirely consumed by the allowances to
the various classes of pensioners, then the excess must be distributed to
the several Confederate pensioners of the State. A similar provision is re-tained
in the Act of 1919 except that the amount appropriated is $650,000.
The Auditor of the State has informed me upon my inquiry that before
the Act of 1919, directing that the installments of pensions be paid semi-annually,
the pensions were paid as required by law between the first and
fifteenth of December in advance. In other words, that the payments made
to the Confederate veterans in December, 1916, were for the year 1917. I do
not find in any statute of the State any warrant or authority for this custom
in the Auditor's office. Its basis rests upon the fact that December is the
first month of the fiscal year.
By examining the acts of the Legislature in regard to pensions from the
first act down to the session of 1919, it appears that when the Legislature
adopted the policy of making a separate tax levy for the payment of pen-sions,
the acts contained the provisions that the pensions should not be paid
until after the first of September of each year, and later, beginning perhaps
in 1907, there was the distinct requirement that the pension warrants should
be sent from the Auditor's office between the first and fifteenth of December
of each year. It is manifest from these acts that the Legislature, in re-ferring
to the first of September and in referring to the month of December,
was dealing with the calendar year and not with the fiscal year of the State.
It was assumed that the taxes being levied at the usual time there would
be sufficient money coming into the treasury of the State, by and after the
first of September and certainly in the month of December, to pay these old
soldiers' pension warrants.
It appears that although the Legislature of 1917 distinctly appropriated
the sum of $575,000 and provided that that entire sum should be expended
in pensions, as a matter of fact, for that year only, the sum, of $434,086 was
paid out, the Auditor's office basing its pensions for that year upon the Act
of 1915, and not upon the increase by the Legislature of 1917. In the year
1918 the total amount paid out for pensions was $565,700, the amount ap-propriated
was $575,000. In the year 1919 the amount paid out was $523,-
167. As stated herein the Act of 1919 distinctly appropriated the entire sum
of $650,000 and it provided that one-half of the pension should be paid be-tween
the first and fifteenth of June and one-half between the first and fif-teenth
of December. The payments made in 1919 were based upon the amount
appropriated by the Act of 1917 and the Confederate pensioners of the State
did not receive in 1917 or in 1919 the increases in their pensions provided
by the Legislature, although in the one case was ratified and in force from
its ratification on the 6th clay of March and in the other case on the 10th of
March. The pensioners did not receive in June, 1919, any part of their pen-sion,
and in December, 1919, received one-half of the amount of their pen-
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 61
sion under the Act of 1919 for the year 1920, so that the Confederate pension-ers
of the State lost for the year 1919 the entire amount of the increase,
to-wit, $15.00. For the six months of 1920, the warrants having been issued
in December, 1919, the amount paid according to the treasurer to date, $317,-
660, which is less than half of $650,000.
In view of this condition and of these facts furnished me by the State
Auditor's office and by the State Treasurer's office, I suggest that a meeting
of the State Pension Board be called and these matters be determined and
rectified. The situation has caused a good deal of complaint among the Con-federate
veterans of the State.
Yours very truly, James S. Manning,
Attorney-General and Member State Pension Board.
Pardon—Dead Convict.
June 30, 1920.
To His Excellency, Governor Pickett, Raleigh, N. G.
Dear Governor:—Referring to the enclosed letter which you referred to
this office, I have reached the conclusion that a pardon from you to the man
convicted of fornication and adultery, although he is dead, and where the
judgment of the court was that he be fined the sum of $2,000.00, the fine not
having been paid, would have the effect to remit the fine.
The Supreme Court held in the case of Bynum v. Taylor, 171 N. C, 86,
that the effect of a pardon, even where the fine had been paid to the clerk
or proper officer and where it had not reached its final destination, was that
it should be repaid to the pardoned offender. In that case the defendant
was living, but I think the authorities sustain your right to pardon a de-fendant
convicted who has died where the judgment of the court has not
been fully performed or where the effect of the conviction would be followed
by a continued denial of some rights to his family or his blood.
I return herein the letter you enclosed.
Yours very truly, Jajies S. Manning,
Attorney-General.
National Guard—Courts of Inquiry
July 23, 1920.
His Excellency, Governor T. W. Bickett, Raleigh, N. G.
Dear Sir:—Referring to our conversation this morning in relation to the
military laws of the State, the General Assembly of 1917, chapter 200, Public
Laws, revised the military laws of the State and in sections 55 to 65 inclu-sive,
sets out fully the system of court-martial for the National Guards. Sec-tion
45 reads as follows:
"Whenever any portion of the militia shall be called into
service to execute the law, suppress riot or insurrection, or to
repel invasion, the articles of war, and articles for the govern-ment
of the Navy, governing the Army and Navy of the United
States, and the regulations prescribed for the Army and Navy
of the United States, and the regulations issued thereunder,
shall be enforced and regarded as a part of this act until said
forces shall be duly relieved from such duty. As to offenses com-
62 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
mitted when such articles of war and articles for the government
of the Navy are so in force, courts-martial shall possess, in ad-dition
to the jurisdiction and power of sentence and punishment
here vested in them, all additional jurisdiction and power of
sentence and punishment exercisable by like courts under such
articles of war and articles for the government of the Navy or
regulations or laws governing the United States Army and
Navy or the customs and usages thereof; but no punishment
under such rules and articles which will extend to the taking of
life shall in any case be inflicted except in time of war, invasion
or insurrection, declared by a proclamation of the Governor to
exist, and then only after approval by the Governor of the sen-tence
inflicting such punishment. Imprisonment other than in
guardhouse shall be executed in county jails or other prisons
designated by the Governor for that purpose."
The articles of war and the articles for the government of the army and
the regulations prescribed for the army, not only provide for the trial of
offenses against articles, but also for courts of inquiry where an officer hav-ing
an independent command is charged with having transcended his author-ity
or duty in the premises. If, however, the offense charged amounts to a
crime against the laws of the State where the command is located, none of
the articles of war or regulations made in pursuance thereof, can oust the
jurisdiction of the State courts. Coleman v. Term., 97 U. S., 509; Grafton v.
U. 8., 206 U. S., 333; Franklin v. U. S., 216 U. S., 559.
It will be observed that the statute, in dealing with the National Guard,
does not specifically provide for a Court of Inquiry as distinguished from a
court-martial. We construe, however, section 45 quoted above as being broad
enough to incorporate a court of inquiry such as that provided for the Na-val
militia in section 85. It is not necessary to resort to this construction
for the articles of war, section 2388, U. S. Compiled Statutes 1918, p. 315
et seq. in articles 97 to 103, inclusive, provide for these courts for the army
also. They are instituted only upon the request of the officer or soldier whose
conduct is to be inquired into. They are composed of three or more offi-cers
and the procedure in these courts is set out fully in the articles above
cited.
Yours very truly, Frank Nash,
Assistant Attorney-General.
Commutation of Punishment
August 17, 1920.
His Excellency, Governor Bickett, Raleigh, N. 0.
Dear Sir:—Yours of August 16th is received. In it you state that one
Boone was convicted at the Superior Court of Lee County and sentenced to
the State's Prison. The authorities of Chatham County are now asking you
to have this prisoner transferred to the roads of Chatham County. This re-quest
is endorsed by the Judge and Solicitor.
You ask the opinion of this office upon the question of whether or not you
have the legal and constitutional authority to accede to this request. After
considerable investigation of the matter, we have come to the conclusion that
you have such power. You are granted, by section 6 of Article 3 of the Con-stitution,
power not only to grant reprieves and pardons, but also commuta-
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 63
tions. Theoretically, at least, imprisonment in the State's Prison is a higher
grade of punishment than imprisonment in a county prison. Conviction
of a felony only authorizes confinement in the State's Prison. Not so, how-ever,
as to confinement in county prisons. The legal definition of commuta-tion
is the substitution of a lesser punishment for a greater. In determining
the relative grades of punishment for the purpose of commutation, the Gov-ernor's
discretion is large and its exercise is not subject to the control of
any other coordinate department.
In Williams case, 149 N. C, 436, the Supreme Court held that delivery and
acceptance are essential requisites to pardon. Under ordinary conditions, it
would be assumed upon the very nature of a commutation itself that its
beneficiary would accept it. In a case of this sort, as the convict is the
only person who could legally complain at the action of your Excellency in
changing his punishment, we would suggest that if you intend to accede to
the request made by the judge and solicitor, that you secure also from
the convict Boone an acceptance of the commutation.
Yours very truly, James S. Manning,
Attorney-Genera I.
OPINIONS TO THE SECRETARY OF STATE
Co-operative Associations—Amendment of Charter
February 7, 1919.
HoN. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—
In re: Lincoln Cooperative Creamery Co., Lincolnton, N. C.
The letter of W. H, Childs to you in the above matter has been referred
to this office for answer. Question put by him is this:
"Is it permissible to change the above named association from a coopera-tive
association chartered under chapter 144, Public Laws 1915, to an old
line corporation by an amendment of the charter under Revisal, section
1175?"
In our opinion this cannot be done. These associations are organized for
the purposes set out in the Act of 1915, and have special privileges conferred
upon them. The main intent of the Act was to enable small producers or
manufacturers to organize and secure the benefits of cooperation without as-suming
the liabilities and duties and responsibilities of incorporation in an
ordinary corporation, and without incurring the expense of the organization
and conduct of such a corporation.
They are not so- much profit making as profit distributing and profit using
concerns and no shareholder therein can hold more than 20% paid-in capi-tal
stock. With these marked differences in their organization, conduct and
control from those of an ordinary corporation, it seems clear that such co-operative
associations should not be allowed to become ordinary corporations
by an attempted amendment of their charters under Revisal, section 1175.
We return herein Mr. Child's letter.
Yours very truly, James S. Manning,
Attorney-General.
Motor Vehicles1—Transfer License
March 15, 1919.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—In reply to yours of March 14:
The State Highway Act became a law on March 10th, 1919. Since that
time, A sells his 26 horse-power automobile, for which he had paid an an-nual
license fee of $5.00 under the Act of 1917. He buys a new 30-horse-power
automobile, and wishes a transfer license, under section 8 of the Act of 1917.
What amount does he have to pay? The Act of 1919 provides an annual reg-istration
fee of $15.00 for a 30 horse-power machine. It seems clear that he
has to pay $10.00. There is nothing in the 1919 State Highway Act which
conflicts at all with section 8 of chapter 140, Public Laws of 1917. That sec-tion
deals wholly with transfer certificates of registration, and meets the
case under discussion with this provision: "In case the machine for which
a transfer license is desired is of greater tax horse-power, the difference be-
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 65
tween the amount paid of the original license and the annual fee for the
machine for which transfer license is desired shall be paid at the time such
application is filed."
The Highway Act of 1919, section 5, specifically repeals section 6 of the
Act of 1917, and substitutes a different schedule of charges for annual license
or registration fees, but it does not alter the annual period during which the
license is to run. It does, however, contain this provision: "Any appli-cant
for the registration of any motor vehicle on or after March 1st of each
year shall be required to pay for said registration a license fee for the bal-ance
of the year ending June 30th only one-half the fee levied in this sec-tion."
This can in no degree modify the requirement of section 8 of the
Act of 1917, that for these transfers, the difference between the annual fee
for the old car, and the annual fee for the new car, shall be the amount to
be paid for the transfer license. The necessary effect, however, of the Act
of 1919, with its repeal of section. 6, of the Act of 1917, leaving section 8 un-touched,
was that the new annual fees fix the cost of a transfer license there-after.
Though, of course, those who have annual license under the old law, may
still run their cars protected by them, and unaffected in this respect by the
new law. To transfer their numbers from one car to another, however, is
a privilege granted by the Legislature, and to be enjoyed upon such terms
as it may impose, and not a right incident to the ownership of an annual
license.
Of course, this construction of the law will, in some instances, induce
those desiring a transfer license for a new car to take instead a new license
under the Act of 1919, because the latter would be cheaper. The term "an-nual,"
however, cannot by any proper rule of construction, be narrowed to
a less period than a year.
Yours very truly, James S. Manning,
Attorney-General.
Motor Vehicles—Transfer License.
March 18, 1919.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—In reply to yours of the 17th:
(1) Where an auto owner seeks a certificate of transfer to another machine
of the same horse-power, he pays, as transfer fee, the 50 cents, and that only,
provided by section 8 of chapter 140, Public Laws 1917. That was not af-fected
in any particular by the Act of 1919. Indeed an invariable rule of
statutory construction is this: An amended statute is to be construed as
if it had read from the beginning as it does with the amendments added to
it. Applying this rule, you will see that there is no difficulty in fixing the
fee at only 50c.
(2) The answer to (1) answers this section 8 so far as these transfers are
concerned, makes horse-power the standard of comparison and the Act of
1919 has not changed this.
(3) The Highway Act and the Revenue Act, both of 1919, must be con-strued
together on this point, and reconciled if possible. Where there is
plain repugnancy, the later ratified Act, if it was to go into effect on ratifi-cation,
would control. The Legislature evidently did not intend to inter-
66 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
fere with the licenses already issued and to expire June 30, 1919 [f they
had they would have said so in express terms. Far from this, it leaves June
30th still the end of the automobile year.
(4) It is not possible to draw an annual license bill for any purpose in
which there will not be inequalities. One might take the Act of 1917 and
show similar inequalities. For instance, a man applies to register a 20
horse-power machine on February 28, and he has to pay $5.50. Another man
applies next day and pays only $3.00. It is the fixed time which operates in
this way.
We enclose herewith our former communication of March 15th. Further
reflection but confirms the view we take therein. Section 8 of the Act of
1919 speaks of funds hereafter collected under the provisions of chapter 140,
Public Laws 1917, as herein amended, and there are no funds to be collected
except license fees. Yours very truly, James S. Manning,
Attorney-General.
Bank—Certificate of Incorporation.
March 18. 1919.
Hon. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—We think both Articles 8 and 9 of this certificate should be
disallowed. Both of them, where they incorporate within them provisions
not already allowed by law, are attempting to legislate through and by the
charter. It is a safe and proper rule to strike out from these certificates
any matter which concerns the public (and not the relations of the corpora-tors
among themselves only), when it attempts to provide a rule other than
provided by the general law. Articles 8 and 9 of this certificate offend
against this rule. Article 8 in these particulars: a. It attempts to limit
the liability of individual stockholder for the debts of the corporation; b. It
attempts to set up a secret lien for the bank upon the stock of its stockhold-ers.
The first attempt (a) offends against section 16, chapter 6, Consolidated
Statutes. The second attempt (b) offends against section 21 of the same
chapter. The Legislature having spoken definitely upon both of these sub-jects,
the method provided by it cannot be changed in any particular. Article
9 is even more objectionable: A safety deposit system cannot be converted
into a general warehouse system in the charter of a bank. One rents a
safety deposit box, and the bank has no control over its contents, so they
do not endanger its or its customer's property. It is in no sense a bailee for
hire of the property deposited therein, and assumes no obligation in rela-tion
thereto, except that the place must be made, and kept, as safe as under
the conditions it is reasonable it should be. The bank is not entitled to a
lien upon its contents (strictly speaking), and it gives no receipts for those
contents. So in any aspect of the case Art. 9 is wholly inadmissible in a
bank charter.
The statute, section 1 of chapter 6, con. stat., requires the certificates of
incorporation to state the nature of the business to be done, whether that
of a commercial bank or savings bank, or both, or of a bank with a trust,
fiduciary and surety business. In whatever way, then, the certificate sub-mitted,
goes beyond, or outside of these objects, it should, in our opinion, be
disallowed to that extent. Yours very truly, James S. Manning,
Attorney-General.
biennial report of the attorney-general 67
Motoe Vehicles—Transfer License—Departmental Ruling.
April 7, 1919.
Hon J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—In reply to yours of April 5th, 1919.
You say: "I will thank you to give me yaur opinion as to whether or not
our departmental ruling of applying half rates to transfers is permissible
under the 1919 law."
A departmental construction of a law as to one of the details of its admin-istration,
acquiesced in through a series of years, is presumed to have been
known to the Legislature. The General Assembly of 1919, legislating as to
the fees for automobile license, increasing the amount materially, left the
law providing for transfers as it was. In the absence of specific legislation
upon the subject, the departmental ruling may be taken as the law of the
case.
The fact of a departmental ruling, acquiesced in for a series of years,
distinguishes this opinion from those of March 15 and March 18th.
Yours, very truly, James S. Manning,
Attorney-General.
Corporation—Change of Location—Certificate—Record
April 23, 1919.
Hon J. Fryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—In reply to yours of April 19:
You ask for the opinion of this office as to the county in which the cer-tified
copy of the certificate of change of location of principal office should
be recorded, under the following circumstances:
"A company is incorporated under the laws of this State with principal of-fice
at Asheville, Buncombe County. Certificate of change of location of the
principal office is subsequently filed under the provisions of section 1176 of
the Revisal, changing the location of principal office to Andrews, Cherokee
County."
1175 of the Revisal, relating to amendments generally, provides that, after
the filing of certificate of. amendment and its recording in the office of Sec-retary
of State, he, the Secretary of State, shall issue a certified copy thereof,
which shall be recorded in the county in which the original certificate of
incorporation is recorded. This is the only provision in the statute in re-gard
to the record of such certificates, and such being the case, it is, of
course, controlling, so this certificate should be filed and recorded in Bun-combe
County. There probably should be an amendment to the law in this
particular which would require the filing of these certificates in both the
county from which the principal office is removed, also in the county to
which it is removed. Yours very truly, James S. Manning,
Attorney-General.
June 23, 1919.
Motor Vehicle—Occasional Carriage of Passengers
June 23, 1917.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Attention Mr. Brown:—You ask if the occasional carrying of passengers
for hire would require the owner of a motor vehicle to take out a service
68 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
license under section 6 of the automobile law. There are two reasons, it
seems to us, why this law should be enforced strictly: First, if the gap was
let down and the owner was permitted to hire a vehicle occasionally with-out
taking out license, because the applicant for its hire was insistent, the
privilege would be liable to very great abuse; second, such condition would
leave the owner of a motor vehicle who had taken out license paying double
fees for that license unprotected against those who had not taken out license.
While Ave think that a single use of a machine in this way, under cir-cumstances
which would justify, would not constitute the use intended by
the statute, yet even this must be in good faith, that is, the owner hiring
it under circumstances in which he would not compete with a holder of
a service license. In other words, it must be under conditions when it would
be practically impossible to secure carriage from the holder of a service
license.
Each particular case would necessarily, under such circumstances, have
to be determined by the good faith of the hirer, considering all the condi-tions
of the hiring. Yours very truly, James S. Manning,
Attorney-General.
'
Corporation as Fiduciary—Oath
Raleigh, July 5, 1919.
Hon J. Bryan Grimes, Secretary of State, Raleigh, N. C.
In the matter of certificate of the Home Investment and In-surance
Co.
Dear Sir:—The only reason at common law, omitting some that were
purely technical and have long since ceased to exist, why a corporation
could not be an executor, or administrator, was because it could not take
an oath, such oath being required in this State. The General Assembly of
1919 provided the machinery by which such oath could be taken in an Act
ratified February 25th, 1919, No. 301 of Captions. The reason of the old
rule having thus been abrogated, the rule itself, in our opinion, has like-wise
been abrogated. Consequently we advise that you permit the amend-ment
desired by Mr. Henry to be made in above certificate.
We return Mr. Henry's letter and the certificate.
Yours very truly, James S. Manning,
Attorney-General.
Corporation—Capital Stock—Non-resident Incorporators
July 17, 1919.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Attention Mr. Brown:—
The statute, Revisal section 1137, sets out the essentials to the proper
certificate of incorporation. Among other essentials is that there should
be capital stock, sub-section 4. This sub-section sets out also the excep-tions
to this general rule as follows: "The provisions of this sub-section shall
not apply to religious, charitable or literary corporations unless they desire
to have capital stock." None of these corporations, so excepted, could be in
any sense considered a business corporation. The Pickert Amusement Com-
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 69
pany seems to be an organization for the purpose of conducting a theatrical
business, or, stated in other words, the business of providing amusement for
the people with a profit to itself. In our opinion, the proposed corporation
is, in no sense, a religious, charitable, social or literary corporation. We are
confirmed in this view by the stringent provisions governing the issue of
stock, its transfer, etc, as contained in Revisal, sections 1159 to 1173 inclusive.
Besides these objections there is still another. All of the incorporators are
non-residents of the State. While the statute does not expressly require that
one or more should be a resident of the State, yet it does require that one
director should be a resident of the State and no one can be a director of
a corporation unless he is a stockholder.
For these reasons we think that this certificate should not be passed.
Yours very truly, James S. Manning,
Attorney-General.
Banks—Dealing in Real Estate
September 6, 1919.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—The second amendment proposed is as follows:
"To take, acquire, buy, hold, own, sub-divide and develop, sell,
lease, mortgage, exchange, improve and otherwise deal and dis-pose
of real estate and real property or interest or right therein
within the limits of 50 per cent of the capital stock and surplus
of said Corporation."
In the opinion of this office, this is not authorized by law. We think
there is no express authority given by our statutes to a bank to deal in real
estate. The right to hold real estate is fixed by chapter 55, Public Laws of
1919, which reads as follows, and speaks for itself:
"Such as shall be necessary for the convenient transaction of
its business, including furniture and fixtures with its banking
offices and other apartments to rent as a source of income, which
investment shall not exceed fifty per cent of its paid-in capital
stock and permanent surplus."
In our opinion section 228-a, Pell's Revisal, does not confer any additional
authority upon banks to deal in real estate, except to protect its loans, debts
contracted in the course of its dealings or acquired by sale under execution
or judgment of any court in its favor. For these purposes it may invest
not more than twenty-five per cent of its capital stock and permanent surplus
in real estate.
Yours very truly, James S. Manning,
Attorney-General.
Motor Vehicles—Interstate Use
October 6, 1919.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:
In re: The arrest of North Carolina car owners by the State
of Virginia.
70 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
You have sent to this office two letters which you have received from
resident automobile owners in regard to their treatment by the officials of
the State of Virginia while on a continuous passage through that State.
These statements, if true, put such officials in a very bad light to say the
least of it.
A very few states in the early history of motor vehicle license legislation
required non-residents specifically, as well as residents, to comply with
these laws. United States Supreme Court in Kane v. New Jersey, 242 U. S.
160, sustained the New Jersey law in this particular. Judge Brandeis says
for the court:
"The power of a State to regulate the use of motor vehicles on
its highways has been recently considered by this court and .
broadly sustained. It extends to non-residents as well as to resi-dents.
It includes the right to exact reasonable compensation
for special facilities afforded as well as reasonable provisions to
insure safety. And it is properly exercised in imposing a license
fee graduated according to the horse power of the engine.
Henclrick v. Maryland, 235 U. S. 610."
Again he says, quoting Hendricks v. Maryland, supra;
"In the absence of national legislation covering the subject
a State may rightfully prescribe uniform regulations necessary
for public safety and order in respect to the operation upon its
highways of all motor vehicles . . . those moving in
interstate commerce as well as others."
Under these decisions there can be no doubt that the Legislature of a State
may require the same license tax of non-resident, as of resident, cars. If
one State does do so, however, all the others must perforce follow suit.
Thus this method of locomotion which has become so common and so far
reaching in distances would have imposed upon it an intolerable burden.
The pressure, then, upon Congress to take over the regulation of motor
vehicles used in interstate travel, or in interstate commerce, would become
so great that there would be no resisting it. If Congress did take over such
regulation, its action would exclude any regulation by the State. This con-sideration,
no doubt, influenced legislatures, which before had been adverse,
to admit non-resident cars upon much more moderate terms. Some now
require a nominal non-resident tax, either for the driver or the car with
identification cards or numbers furnished, while others, acting in a spirit
of comity, extend to non-resident cars the same courtesies which the State
of their origin extends to their cars. Both the North Carolina and Virginia
laws seem to be founded on this eminently fair and neighborly principle.
The North Carolina law is section 12, chapter 140, Public Laws of 1917, as
follows:
"That non-resident owners or operators of motor vehicles shall
be subject to the same requirements and laws as resident owners
or operators: Provided, that the non-resident owner of a motor
vehicle which is properly registered under the laws of another
State, district, or territory shall be exempt from the registra-tion
provisions of this act for the same period that a properly
registered owner of this State is exempt from the registration
provisions of the State in which such non-resident "resides, not
exceeding sixty days: Provided, that nothing herein contained
shall be construed to exempt any motor vehicle used for hire by
a non-resident."
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 71
The Virginia Law is section 10, chapter 522, of the Laws of 1916, as follows:
"Any owner or operator, not a resident of this State, who shall
have complied with the laws of the State in which he resides,
requiring the registration of motor vehicles, or licensing of
operators thereof, and the display of identification or registration
numbers of such vehicles, and who shall cause the identification
numbers of such State in accordance with the laws thereof, and
none other, together with the initial letter or letters, of such
State to be displayed on his motor vehicle, as in the sub-title
provided, while used or operated upon the public highways of
this State, may use such highways not exceeding two periods of
seven consecutive days in each calendar year . . . the
Governor of this State is hereby authorized and empowered to
confer and advise with the proper officers and legislative bodies
of other States of the Union, and enter into reciprocal agree-ments
under which the registration of motor vehicles owned by
residents of this State will be recognized by such other States,
and he is further authorized and empowered, from time to time,
to grant to residents of other States the privilege of using the
roads of this State, as in this section provided, in return for
similar privileges granted residents of this State by such other
States."
We have been unable to ascertain whether or not the Virginia, statute
was materially amended at the Session of 1918, the laws of that year not
being in the Supreme Court Library. If it is still in force as quoted above,
it is obvious that there are two courses open to you. First, and this is to
use a sword for offense, is to invoke section 12 above and apply to Virginia
cars the same measure of justice or injustice as that which the Secretary of
the Virginia Commonwealth has apparently applied to North Carolina cars.
Second, and this is a shield for defense, apply to the governor of Virginia
for a conference under section 10 of the Virginia Act quoted above.
Unless this act has been materially amended, the Virginia officials had no
authority, even of Virginia law, to interfere with the cars passing
through the State, provided they had complied with the North Carolina Law
and had with them license plates showing their compliance with that law,
unless they were arrested for the breach of some police regulation of the
Virginia law.
Yours very truly, James S. Manning,
Attorney-General.
Process—Service on Express Companies
March 9, 1920.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—
In re: Service of process on express companies.
In reply to yours of March 8th.
Section 1243, Revisal 1905, contemplates the service of process upon
any corporation having property or doing business in this State upon the
Secretary of State, when it has no officer or agent in this State upon whom
process can be served. That service is to be made by leaving a true copy
72 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
of the summons with him. He shall then mail the copy to the president,
secretary or other officer of the corporation. When he has done this, the
Secretary of State has performed his full duty in the premises. It is the
duty of the plaintiff or his counsel to see that due service of process is
made upon a defendant when he brings an action against such defendant.
When the matter is doubtful he may protect himself by service of process
upon the local agent or otherwise as he may be advised. The question of
proper service must be determined by the court before which the action is
brought. So far as the Secretary of State is concerned, as above said, he
has done his full duty when he has mailed the copy of the summons served
upon him to the officer designated in the statute. We think there is no doubt
as to the validity of section 1243 in its application to cases defined therein.
We return herein the file of papers sent us.
Yours very truly, James S. Manning,
Attorney-General.
Morris Plan Banks—Industrial Banks
March 9, 1920.
Hon. J. .Bryan Grimes, Secretary of State, Raleigh, N. C.
Chapter 225, Public Laws of 1919, defines Industrial Banks and authorizes
their organization in the manner therein provided. The Raleigh Morris Plan
Company was organized as a Morris Plan Bank before the ratification of the
Industrial Bank Act. Its charter authority included the powers set out in
section 5 of the above cited act. Section 10 of the act is as follows:
"Any corporation heretofore organized under the general cor-poration
law of this State, and authorized by its charter or
articles of incorporation to engage in the business described in
sectin 5 of this act, shall, upon filing notice with the Secretary
of State and the Corporation Commission on or before January 1,
1920, be recognized as an industrial bank within the provisions of
this act and shall be subject to this act to the same extent as
if actually incorporated hereunder."
The Raleigh Morris Plan Bank, on January 1, 1920, filed with the Secretary
of State a notice under section 10 of its purpose to avail itself of the Indus-trial
Bank Act. If this notice had, at the same time, been filed with the
Corporation Commission, we think that these two filings would have con-stituted
an irrevocable act; that thereafter the Raleigh Morris Plan Bank
company would have become an industrial bank and would have remained
so until its charter had been amended in accordance with the provisions of
the statute allowing such amendment.
We had a conversation with Mr. Self, chief clerk of the Corporation Com-mission,
who informs us that this company had left with him a notice
similar to that filed with you, but it asked him not to act upon it or file it
until further notice; that thereafter and after January 1, 1920, they did
withdraw the paper from the Tax Commission. Under these circumstances
we are of the opinion that this was not a filing with the Corporation Com-mission
such as contemplated by above quoted section 10. To constitute a
valid filing the corporation must surrender all control over the notice. It
is to become a public record from the very instant of filing, and thus passes
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 73
wholly beyond the control of the filer. The corporation, however, has the
option to file or not file on or before January 1. If it does not file at that
time, as positively as the act requires, then it has forfeited all the privileges
conferred upon it by the Industrial Bank Act.
The Raleigh Morris Plan Company thus having failed to file, in accordance
with section 10, may, if it chooses, withdraw its notice filed with the Secre-tary
of State on January 1, 1920, and proceed to conduct its business under
its original charter. It is not, and has never been, an industrial bank
within the definition of the Act of 1919.
Yours very truly, James S. Manning,
Attorney-General.
Bank—Legislative Charter—Lapse
March 16, 1920.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—We have considered the letter of Mr. A. H. Eller dated March
13th and addressed to you.
The Dime Savings Bank of Winston-Salem was incorporated specially by
chapter 452, Private Laws 1911. This Act was ratified March 8th, 1911. Mr.
Eller states in his letter that the bank has never yet organized but desires
to do so now. We think they have no authority under this special charter.
A private corporation cannot be created without the consent of the persons
incorporated, therefore, where a private corporation is created by a special
act of the Legislature two things must concur in order to the bringing into
existence of this artificial body: (1) Granting of the charter by the Legis-lature;
(2) acceptance of the charter by the corporators. Without such
acceptance, express or implied, there is no corporation. Where the act itself
does not specify the time within which it is to be accepted, it must be ac-cepted
within a reasonable time. If not so accepted, the offer will lapse
and cannot be thereafter acted upon. What is such reasonable time has
never been determined so far as we have discovered in North Carolina. It
is quite probable, however, that the courts would hold that action within
two years would be reasonable time. We think it beyond controversy that
a delay of nine years without any organization at all, as in this case, would
amount to a failure to accept the charter within a reasonable time, conse-quently
the Dime Savings Bank cannot now organize and proceed to act as
a corporation under chapter 452, Private Laws 1911. If it purposes to do
business now it must obtain its authority under the general laws, its special
authority having lapsed.
Yours very truly, James S. Manning,
Attorney-General.
Entry and Grant—Corporation
June 12, 1920.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—You ask this office whether or not a corporation may enter
and obtain a grant for vacant and unappropriated land. We think not.
The statute Revisal section 1692 defines those to whom a grant may be issued
as follows: Any citizen of this State and all persons who have or shall come
74 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
into the State with bona fide intent of becoming residents and citizens thereof.
This definition is repeated in the proviso at the end of section 1729. "We
think the term "citizen" as thus used is confined to natural persons. Though
a corporation may be a citizen of the State that its rights may be protected
under the 14th Amendment of the Federal Constitution, we know no instance
in which it can participate in the enjoyment of privileges conferred upon
residents and citizens of a State unless they are specifically granted to it as
a corporation.
Yours very truly, James S. Manning,
Attorney-General.
Trademark—Trade Names
July 13, 1920.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—We have carefully considered the application of the Apollo
Company for registration of the word "Apollophone." If it was confined
strictly to the registration of that word as a trade mark for goods manufac-tured
by that company, we think there would be no difficulty in regard to it.
Our statute Revisal sections 3012 et seq. seems to contemplate the registration
of single trade marks. We think that under it no such concatenation of
words as those set out in the particular application can be registered as a
trade mark. This application seems an attempt in one proceeding to have
registered 10 different trade marks and as such under out statute is not
allowed. It would be impossible for the Secretary of State to go over this
application and determine from it which one of the trade marks suggested
can be legally registered.
The term "trade mark" has a very definite signification. It is defined as
a name, sign, symbol or device which is attached to goods offered for sale
in the market so as to distinguish them from similar goods, and to identify
them with a particular trader or with his successors as owners of particular
business. It is a fundamental rule that terms merely descriptive of the goods
or business to which they are applied cannot be exclusively appropriated as
trade marks or trade names. The reason for this is that everyone must be
allowed to describe truly his goods or business and in order to do so he may,
indeed must, use the terms necessary or appropriate for that business. No
one can secure a monopoly upon the adjectives of the language. Therefore,
words belonging to the common stock of words cannot be exclusively appro-priated
as trade marks.
The particular application for a trade mark offends against these rules
and others which would make this letter too long to recapitulate. Our
statute, it seems to us, cannot have the extensive application involved in
granting the numerous trade marks asked in this paper. If the parties care
to make an application to have registered each one of the trade names as
appearing on the first page of the affidavit, then, in the opinion of this office,
the application must be made distinctly for each one of such trade names,
that your office may determine whether the proposed trade mark is justified
by our statute.
We return herein the papers in the case.
Yours very truly, James S. Manning,
Attorney-General.
biennial report of the attorney-general 75
Entries and Grants—Non-resident Enterer
July 28, 1920.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—In reply to yours of July 28.
It seems that P, a resident of the State, together with A, a non-resident
of the State, jointly made an entry of vacant land under the statute, and now
P wishes to place himself in a position to obtain a grant to himself alone,
under such entry, and you ask what should be his procedure. We suggest
that he obtain from A an assignment of his rights under the entry and then
proceed as sole enterer. It is true that under our statute a non-resident
entry would be voidable, but the fact of non-residence is to be determined
upon evidence and under such circumstances there would be nothing upon
the face of the transaction to show that A was conveying a void right. To do
this, then, would make the record itself straight.
In regard to such cases Judge Bynum, giving the opinion of the Court in
Wilson v. Land Company, 11 N. C. 445 at pp. 457-458, says:
"But the defendants have more than these entries; they have
the grants from the State, and also a deed which conveys the
legal title, which is good until avoided by the State for cause,
or by a party having a better title or superior equity. Because
a grant is taken out upon an entry which has lapsed by the efflux
of time, it does not follow that it is void. On the contrary, it is
valid. Horton v. Cook, 54 N. C, 270. So if a grant is issued
upon an entry which is void because of the non-citizenship of
the enterer (as Davis here), the grant itself is nevertheless
valid, and passes the title, if the grantee is a person capable of
taking and holding by the laws of the State."
To the same effect is Johnson v. Lumber Company, 114 N. C, 717 at p.
720. It is noticeable that the proviso to section 1729 requires only the
assignee to be a resident of the State.
I return herein Mr. Pierce's letter.
Yours very truly, James S. Manning,
Attorney-General.
OPINIONS TO THE STATE TREASURER
Taxation—Corporation Not Legally Dissolved
February 14, 1919.
Hon. B. R. Lacy, State Treasurer, Raleigh, N. C.
Dear Sir:
In the matter of the tax levied against the J. L. Rogers
Company.
A corporation once a corporation within the period of its corporate life
as provided in this charter continues a corporation until dissolved by some
method provided in the statute. It appears from the papers sent us that the
company has an impression that it can close business without com-plying
with the forms of law. If this is true, then, it is still a corpora-tion
and the tax may be enforced against it as in other instances when a
corporation is a going concern. Whether judicial proceedings were ever
taken against this corporation with a view of its liquidation or of its solution,
we are not informed: It may be that such proceedings are pending now.
Sections 1236 and 1237 of the Revisal render the property of a corporation,
though in the hands of a receiver, liable for all taxes against it and the
same may be collected by distraint and seizure as though the property of
the corporation was not in the hands of a receiver.
We return herewith papers sent us.
Yours very truly, James S. Manning,
Attorney-General.
Forestry Reserve Fund—How Paid Out
March 28, 1919.
Hon. B. R. Lacy, State Treasurer, Raleigh, N. C.
Dear Sir:—Referring to your request for my opinion as to how the
Forestry Reserve Fund paid to you by the Treasurer of the United States
under the foreign provision of the Federal statute.
"That thereafter 25 percentum of all moneys received from
each forest reserve during any fiscal year including the year
ending June 30, 1908, shall be paid at the end thereof by the
Secretary of the Treasury to the state or territory in which said
reserve is situated, to be expended as the state or territory legis-lature
may prescribe, for the benefit of the public schools and
roads of the county or counties in which the forest reserve is
situated. Provided: That when any forest reserve is in more
than one state or territory or county the distributive share to
each from the proceeds of said reservation shall be proportionate
to its area therein."
The only Act of the Legislature of North Carolina pertaining to this fund
is an act ratified on the 10th day of March, 1919, entitled "An act relating to
funds for school purposes in McDowell County," and which Act in section 1
provides
:
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 77
"That all funds paid by the National Forest for the county of
McDowell, North Carolina, shall be paid to the Treasurer of
McDowell County, North Carolina, to be expended by the Board
of Education of McDowell County, North Carolina, for the benefit
of the public schools of said county."
I am informed by you that the distributive share of McDowell County in
the moneys paid to you by the Secretary of the Treasury under the Federal
statute above quoted is $832.76. I am of the opinion that the treasurer of
McDoweS County is the proper official to whom you should pay the above dis-tributive
share of McDowell County. The federal statute having created this
fund and it having been paid to you under this statute for the benefit of the
public schools and roads of the county, and it having delegated to the legis-lature
the apportionment of the funds between these two beneficiaries, I sug-gest
to you that you remit the part of the distributive share of McDowell
County to the treasurer of that county, and he then can determine whether
he will pay it to the school fund exclusively or whether he will regard the
Act of Congress which has created the fund and named the beneficiaries of
the fund.
You will have fully discharged your duty, I think, when you have remitted
the county official of McDowell County the distributive share of McDowell
County. Yours very truly,
"
James S. Manning,
Attorney-General.
State Bonds—Caswell Training School
March 31, 1919.
Hon. B. R. Lacy, State Treasurer, Raleigh, N. 0.
Dear Sir:—Replying to your inquiry of the 29th instant as follows:
Whether the $300,000 appropriated by the General Assembly of 1919 to the
Caswell Training School, contained in H. B. 1410, S. B. 1357, is a part of the
three million dollars bond issue authorized by the Act of 1917, chapter 154, I
beg to say that charter 154 of the Acts of 1917 did not carry any appropria-tion
to the Caswell Training School. On the contrary, the appropriation for
the Caswell Training School was made by chapter 269, Public Laws 1917,
being for the sum of $75,000. The appropriation of $300,000 by the Act of
1919 is a part of the $946,000 which you are directed to borrow on short term
notes, and for which no issue of bonds is provided in that act.
In my opinion, therefore, no part of the annual bond issue of $500,000 under
chapter 154 of the Public Laws of 1917 goes to the Caswell Training School.
I return herein the copy of the Act of 1919 as you request.
Yours very truly, James S. Manning,
Attorney-General.
State Notes Under Act of 1919
April 1, 1919.
Hon. B. R. Lacy, State Treasurer, Raleigh, N. C.
Dear Sir:—I have yours of April 1st asking me for my opinion as to H.
B. 1410, S. B. 1357, ratified March 1919.
This act was intended to accomplish two purposes: One was to authorize
you, as Treasurer of the State, to borrow for a period of two years at the
lowest rate of interest obtainable $946,000, which amount is appropriated
78 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
for the purposes and institutions named in section two of the Act, the aggre-gate
of which amounts to $946,000. No bonds are authorized to be issued to
pay these notes. On the contrary, you are directed to apply the surplus in
the treasury not otherwise appropriated at the end of the fiscal year 1920
to the payment, as far as it will go, of these notes.
By section 154, of the Public Laws 1917, you were directed to issue three
million dollars of bonds, covering a period of six years, five hundred thous-and
dollars a year, and the proceeds arising from the sale of these bonds were
appropriated to certain of the State institutions and for certain purposes
by that act and, with two exceptions, towit: $500,000 of the three million for
the erection of public schoolhouses, and the sum of $50,000 for the erection
of the State warehouse building, the money to be expended under the super-vision
of the building commission. .
By section 5 of the Act of 1919, the Legislature declared that the institu-tions
benefited by the bond issue of the 1917 Act would probably need
the total amount appropriated to such institutions before the six year period
expired, and it directed you, by this section 5, to borrow by and with the
advice of the Governor and his Council of State in anticipation of the bonds
authorized to be issued by chapter 154 of the Public Laws of 1917 and for
the institutions therein named, but, however, not exceeding the total amount
for the bonds in said act authorised such sums of money from time to time
as the trustees or directors of said institutions therein named might need,
and which should be approved by the State Building Commission. The
amounts so borrowed by you to anticipate the bonds authorized to be issued
were to be paid out of the proceeds of the sale of such bonds. The institu-tions
to be benefited with the proceeds of the notes aggregating $946,000 are
some of the same institutions that shared in the proceeds of the sale of the
bonds authorized by the Act of 1917, but, of course, the appropriation to them
by the act of 1919 was in addition to the appropriation out of the bond issue
of the act of 1917. How far you will anticipate the bond issue authorized
by the Act of 1917 is left to the discretion of the Building Commission and
the Governor and his Council of State.
If an institution provided for in the Act of 1917 desires the full amount
of its appropriation under said Act for the purposes of course therein named,
its request must first be approved by the Building Commission, then, before
you, as treasurer, borrow the money and execute the notes of the State, it
must be approved by the Governor and his Council of State. You will note,
also, that the limitation of time, towit, two years for the duration of the
notes issued for money borrowed in anticipation of the bonds, is not applied
to the notes issued for the $946,000.
I think this fully covers the request in your letter.
Yours very truly, James S. Manning,
Attorney-General.
Banks—Taxation Exemptions
April 5, 1919.
Hon. B. R. Lacy, State Treasurer, Raleigh, N. C.
Dear Sir:—I have your letter asking my opinion as to the effect of the
following provision in section 42, Machinery Act, being chapter 92 Public
Laws of 1919:
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 79
"There shall also be deducted investments by such banks in
bonds of this State and of the United States Government and of
the Federal Farm Loan Bank and bonds of the Joint Stock Land
Bank not exceeding twenty-five per cent of the capital stock and
surplus of such banks. To be entitled to this deduction it must
be shown by the reports of such banks that the bonds were pur-chased
and paid for in full at least ninety days before the first
day of May, except that bona fide purchases of the current
issue of "Victory" bonds may be deducted if paid for in full not
later than the twentieth day of April, nineteen hundred and
nineteen."
The several statutes authorizing the issue of bonds for the State of North
Carolina contain sections substantially as follows: I quote from chapter 154,
Public Laws 1917, section 4:
"The said bonds and coupons shall be exempt from all State,
county or municipal taxation or assessment, direct or indirect,
general or special, whether imposed for purpose of general
revenue or otherwise, and the interest paid thereon shall not
be subject to taxation as for income, nor shall said bonds and
coupons be subject to taxation, when constituting a part of the
surplus of any bank, trust company or other corporation."
You will note that the above section exempts said bonds and coupons
from taxation when constituting a part of the surplus of any bank, trust
company or other corporation. The effect of this was to exclude these bonds
from the assets of the bank in ascertaining the taxable value of its shares of
stock, and this immunity was extended only when surplus of the bank or
a part of it was invested in these bonds and to the extent only of such
surplus. This right or immunity, by virtue of the statute, became in my
opinion, a part of the contract between the State and the corporate holders
of these bonds. I do not think the Legislature of 1919 intended to, in any
wise, abridge or lessen this immunity, and I think the provision of section
42 of the Machinery Act above quoted can be construed so as to not be in
conflict with the section above quoted from the bonding acts. Under the
above quoted section of the bonding act, any bank, trust company or other
corporation may invest its entire surplus in State bonds with the immunity
above stated, and, in my opinion, under the above provision of section 42 of
the Machinery Act as above quoted, it is competent for any bank, trust com-pany
or other corporation to invest twenty-five per cent of its capital, sepa-rate
from its surplus in such bonds, but the investment of twenty-five per
cent of its capital must be made at least ninety days before the first day of
May, with the exception of the purchase of the Victory Loan Bonds.
It is my opinion, therefore, that under this provision of the Machinery
Act, any bank, or banking association of this State can invest, not exceeding
twenty-five per cent of its capital, in State bonds and this investment shall
not be taken into account in ascertaining the taxable value of the shares of
stock in said bank, or banking association, but this investment of its capital,
as distinguished from its surplus, must be made ninety days before the first
day of May, and it was the purpose of this provision to permit any bank or
banking association to invest not exceeding twenty-five per cent of its capi-tal
and surplus in bonds of the United States Government, bonds of the
.Federal Farm Loan Bank, and bonds of the Joint Stock Land Bank, and for
80 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
such investment, when made prior to ninety days before the first of May, to
be deducted from its assets, in ascertaining the taxable value of its shares
of stock in said bank or banking association.
To summarize: (1) Under the provision of the bonding acts of the State
any bank, trust company or other corporation can invest its surplus in bonds
of the State and this investment is not counted in ascertaining the taxable
value of the shares of stock in said corporation. (2) Under the provision of
the Machinery Act any bank or banking association may invest twenty-five
per cent of its capital in said bonds, bonds of the United States Government,
bonds of the Federal Farm Loan Bank or bonds of the Joint Stock Loan
Bank, and such investment shall not be counted in ascertaining the taxable
value of the shares of stock. Provided, this investment is made ninety days
before the first of May. (3) Any bank or banking association may invest not
exceeding twenty-five per cent of its capital and surplus in bonds of the
United States Government, bonds of the Federal Farm Loan Bank, and bonds
of the Joint Stock Land Bank, and such investment shall be deducted in
ascertaining the taxable value of its shares of stock, provided, such invest-ment
is made ninety days before the first of May.
Yours very truly, James S. Manning,
Attorney-General.
State Bonds—Chapter 154 Public Laws 1917
—
Journal Entries
April 23, 1919.
Hon. B. R. Lacy, State Treasurer, Raleigh, N. C.
Dear Sir:—You have handed us a letter from the Murchison National
Bank, Wilmington, N. C, dated April 21, accompanied by one from W. H.
Lamar, Solicitor of the Post Office Department, in regard to North Carolina
4 per cent bonds, due 1923, 1924, 1925, and 1927, said bonds having been
issued under Chapter 154, Public Laws 1917, and request the opinion of this
office upon the legality of said issue.
The Legislative history of the enactment of the law is as follows:
Chapter 154 of the Public Laws 1917 is entitled "An Act to issue bonds of
the State for the permanent enlargement and improvement of the State's
Educational and Charitable Institutions." We copy its preamble and first
section:
"Whereas the State's educational institutions and the State's
charitable institutions are inadequate to meet the demands of
the people of the State, and it is necessary that the State's
institutions be permanently enlarged and improved in order that
they may properly be sufficient for the purpose of their creation,
,
and in order to make the State's institutions adequate to the de-mands
and necessities of the people of the State it is necessary
that State bonds be issued, as the annual revenues of the State
are inadequate for said purposes: Now, therefore,
The General Assembly of North Carolina do enact:
"Section 1. That for the purpose of permanently enlarging
the State's educational and charitable institutions, to make them
adequate to the demands and necessities of the people of the .
State, the State Treasurer is hereby authorized and directed to
issue bonds of the State of North Carolina, payable in the
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 81
manner and at the date hereinafter described, to an amount not
exceeding three million dollars ($3,000,000), and said bonds shall
be issued in the following amounts, to-wit:
To be issued in the year 1917 $500,000
To be issued in the year 1918 500,000
To be issued in the year 1919 500,000
To be issued in the year 1920 500,000
To be issued in the year 1921 500,000
To be sisued in the year 1922 500,000"
Senate Journal
February 27, 1917.
NIGHT SESSION
The Senate meets pursuant to adjournment.
introduction of bills and resolutions
By Senator Holderness: S. B. 1406, bill to issue bonds for the
permanent enlargement and improvement of the State's educa-tional
and charitable institutions.
Referred to Committee on Appropriations.
Senate Chamber, February 28, 1917.
NIGHT SESSION
Senate meets pursuant to adjourning.
Committee reports from committee on appropriations.
By Senator Holderness: S. B. 1406, bill to issue bonds of the
State for the permanent enlargement and improvement of the
State's educational and charitable institutions, with favorable
report. At the same session, Senate bill 1406, bill to issue bonds
of the State for the permanent enlargement and improvement
in the State's educational and charitable institutions, upon
second reading.
Upon call of the ayes and noes, the bill passed the second
reading, ayes 44, noes 1, as follows:
(Giving the names of those voting).
Senate Chamber, March 1, 1917.
NIGHT SESSION
S. B. 1409, bill to issue bonds of the State for the permanent
enlargement and improvement of the State's educational and
charitable institutions, upon third reading.
The committee reports the following amendment (strike out
section 8 and renumber the succeeding section). The amend-ment
is adopted. The bill as amended passed the third reading,
ayes 43, noes 1, as follows:
(Naming those voting).
6
82 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
Senate Chamber, March 2, 1917.
Senator Warren, for the committee on engrossed bills, reports
that he has examined the following bills and finds them to
be properly emgrossed: Senate bill 1406, bill to issue bonds of
the State for the permanent enlargement and improvement of the
State's educational and charitable institutions.
House Journal
night session
March 2, 1917.
House meets pursuant to adjournment. Message from the
Senate. Message received from the Senate transmitting the
following bills and resolutions which are read the first time and
disposed of as follows: S. B. 1406, H. B. 1767, bill to be entitled
"An act to issue bonds of the State for the permanent enlarge-ment
and improvement of the State's educational and charitable
institutions." The bill is placed on the calendar.
THE CALENDAR
March 3, 1917.
Bills and resolutions on the calendar taken up and disposed of
as follows: H. B. 1767, S. B. 1406, bill to be entitled an act to
issue bonds of the State for the permanent enlargement and im-provement
of the State's educational and charitable institutions,
passed its second reading by the following votes by ayes and
noes. Ayes 90, noes none.
The bill takes its place on the calendar.
THE CALENDAR
March 5, 1917.
Bills and resolutions on the calendar taken up and disposed
of as follows: H. B. 1767, S. B. 1406, bill to be entitled an act to
issue bonds of the State for the permanent enlargement and im-provement
of the State's educational and charitable institutions,
passed its third reading by the following votes by ayes and noes,
and is ordered enrolled, ayes 87, noes 14.
ENROLLED BILLS
Mr. Phillips, for the committee on enrolled bills, reports the
following bills and resolutions properly enrolled and they are
duly ratified and sent to the office of the Secretary of State:
H. B. 1767, S. B. 1406, a bill entitled an act to issue bonds of
the State for the permanent enlargement and improvement of
the State's educational and charitable institutions.
It will be observed that the bill on its passage through the senate was
amended on its third reading without putting it upon its several readings again.
This amendment, however, simply struck out section eight which required the
Building Commission to purchase a certain lot of land in the city of Raleigh.
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 83
The amendment, then, far from increasing the debt or liability of the State
upon the bond issue, reduced it, and so, under the rulings of our Supreme
Court, it was not material within the requirements of Article II, section 14,
of the State Constitution.
The foregoing record shows that this bill was passed through each house
of the General Assembly of North Carolina by reading on three separate
days in conformity with the requirements of the Constitution for legislation
of this character, and in this regard I find the bonds to be in all respects
regular.
Yours very truly, James S. Manning,
Attorney-General.
State Highway Bonds Act—Validity
May 10, 1919.
Hon. B. R. Lacy, State Treasurer, Raleigh, N. C.
Dear Sir:—Yours of May 7th received. In your letter you request my
opinion upon the following questions, relating to an act to encourage road
building in North Carolina by State's aid, ratified by the General Assembly of
North Carolina, this act being Chapter 6 of the Public Laws of 1917, with
some changes, the 1917 act having been considered and certain features of
it held contrary to the Constitution of the State in the case of Commissioners
v. State Treasurer, reported in 174 N. C, page 141:
(1) You ask whether the act of 1919 is constitutional or not?
(2) Whether an act of the Legislature directly authorizing the county to
issue bonds would come under this act, as the act provides for a vote of
the county being taken upon it?
(3) Whether the county having the authority to issue their bonds direct
could take advantage of this and hold election under this law so they could
borrow the money from the State?
(4) If the county issues bonds for a half million dollars, how much, under
this act, would I be able to lend to them, and when would it probably be
available?
A further question you desire to know is, if it is impossible to float these
bonds, could you borrow the money as you are instructed to do under some
provisions of the acts of the past legislature, relating to other state bond
issues?
In the Act of 1919 entitled "An Act to encourage road building in North
Carolina by State's aid," no authority is given you to borrow money in the
event you are unable to sell the four per cent State bonds at par authorized
to be issued by this act. Your authority to borrow money upon your failure
to sell State bonds authorized by other acts, such as the bonds to commute
the State debt due the first of April, 1919, and the bonds authorized to be
issued under chapter 154 of the Public Laws of 1917, does not extend to
the borrowing of money in the event of your inability to sell the State bonds
to aid and encourage road building in the State under the act now under
consideration. In the event of your inability to sell these bonds at four per
cent at par you have no authority to borrow money on these bonds or in
anticipation of the sale of the bonds. Your inability to sell a four per cent
North Carolina State bond at par was known to the Legislature during the
session of 1919, and in view of this it failed to give you authority to borrow
84 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
money in lieu of these bonds and to supply the demand under this act.