North Carolina Attorney General reports

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FOR USE ONLY IN
THE NORTH CAROLINA COLLECTION
BIENNIAL R EPORT
OF THE
ATTORNEY GENERAL
OF THE
STATE OF NORTH CAROLINA
VOLUME 29
1946-1948
Harry McMullan
attorney general
T. W. Bruton
Hughes J. Rhodes
Ralph Moody
James E. Tucker
Frank P. Spruill, Jr.*
Peyton B. Abbott*
assistant attorneys general
Mr. Spruill resigned July 1, 1947.
Mr. Abbott was appointed July 1, 1947.
LIST OF ATTORNEYS GENERAL SINCE THE
ADOPTION OF CONSTITUTION IN 1776
Tenn of Office
Avery, Waightsill 1777-1779
Iredell, James 1779-1782
Moore, Alfred 1782-1790
Haywood, J. John 1791-1794
Baker, Blake 1794-1803
Seawell, Henry 1803-1808
Fitts, Oliver 1808-1810
Miller, William 1810-1810
Burton, Hutchins G 1810-1816
Drew, William 1816-1825
Taylor, James F 1825-1828
Jones, Robert H 1828-1828
Saunders, Romulus M 1828-1834
Daniel, John R. J 1834-1840
McQueen, Hugh 1840-1842
Whitaker, Spier 1842-1846
Stanly, Edward 1846-1848
Moore, Bartholomew F 1848-1851
Eaton, William 1851-1852
Ransom, Matt W 1852-1855
Batehelor, Joseph B 1855-1856
Bailey, William H 1856-1856
Jenkins, William A 1856-1862
Rogers, Sion H 1862-1868
Coleman, William M 1868-1869
Olds, Lewis P 1869-1870
Shipp, William M 1870-1872
Hargrove, Tazewell L 1872-1876
Kenan, Thomas S 1876-1884
Davidson, Theodore F 1884-1892
Osborne, Frank 1 1892-1896
Walser, Zeb V 1896-1900
Douglas, Robert D 1900-1901
Gilmer, Robert D 1901-1908
Bickett, T. W 1909-1916
Manning, James S 1917-1925
Brummitt, Dennis G 1925-1935
Seawell, A. A. F 1935-1938
McMullan, Harry 1938-
LETTER OF TRANSMITTAL
1 December 1948
To His Excellency
R. Gregg Cherry, Governor
_
Raleigh, North Carolina
Dear Sir:
In compliance with statutes relating thereto, I herewith transmit the
report of the Department of Justice for the biennium 1946-1948.
Respectfully yours.
I
Harry McMullan,
Attorney General
r(
o
EXHIBIT I
Civil Actions Pending or Disposed of in the Courts
OF North Carolina
Pending in Superior Courts of North Carolina
American Tobacco Company v. Maxwell, Commissioner of
Revenue.
Burroughs Adding Machine Company v. Gill, Commissioner of
Revenue.
Frank 0. Sherrill v. Hugh MacRae Company, Inc., et al.
State and Department of Agriculture, et al. v. Jesse Carpenter,
et al.
Dr. J. R. Spencer v. State Board of Health.
J. A. Adkins v. B. D. Perry.
Pure Oil Company v. Maxwell, Commissioner of Revenue.
R. L. Lewis and Huger S. King v. Johnson, State Treasurer.
Catherine J. Ward, et al. v. Jessup and Commissioner of Revenue.
Ina Ericson v. E. E. Ericson, et al. and University of North
Carolina.
Collis Lewis (by next friend) v. State Board of Education.
State ex rel. Insurance Commissioner v. Keystone Mutual Cas-uality
Company.
Utilities Commission v. Atlantic Coast Line, Seaboard Air Line
and Southern Railway Companies.
Plantation Pipe Line Company v. Gill, Commissioner of Revenue.
Wake County v. University of North Carolina and Albert Cox,
Trustee.
L. G. Squires v. L. C. Rosser and H. J. Hatcher (Motor Vehicle
Dept.)
Waldean Stephens, et al. v. Board of Graded School Trustees,
et al.
Mary Price, Chairman, etc. v. State Board of Elections, et al.
First Citizens Bank & Trust Company, Executor, v. Alfred Hol-lingsworth,
et al.
Disposed of in the Superior Courts of North Carolina
General Motors Corporation v. Doughton, Commissioner of Reve-nue
(2 cases).
Freeland v. State School for the Blind, et al.
P. M. Nesbitt v. Gill, Commissioner of Revenue.
Gill, Commissioner of Revenue v. Bank of French Broad, gar-nishee
in the matter of L. L. McLean, Taxpayer.
State Board of Education v. Gallop, et al. and Woodhouse, et al.
H. P. Brandis, et al. v. The Trustees of Davidson College, et al.
Mrs. Clara W. Geer v. Gill, Commissioner of Revenue.
Genevieve H. West, et al. v. Department of Conservation and
Development.
Quay D. Williford v. Algodon Manufacturing Company, et al.
Atlantic Greyhound Corporation, et al. v. North Carolina Utili-ties
Commission.
6 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 29]
Garrou Knitting Mills v. Gill, Commissioner of Revenue.
T. W. Stevens v. Commissioner of Motor Vehicles.
R. Shelton White v. Commissioner of Motor Vehicles.
Wachovia Bank and Trust Company, et al. v. Bitting Shelton,
et al.
Wachovia Bank and Trust Company, et al. v. Harry McMullan,
Attorney General, et al.
Maultry Rogers v. Commissioner of Motor Vehicles.
University of North Carolina v. Unknown Heirs of Donald M.
Steffee
University of North Carolina v. E. 0. Guerrant, Trustee of
American Island Mission, etc.
University of North Carolina v. Unknown Heirs of Joseph Futch.
Mrs. Mary Grey Sabine v. Gill, Commissioner of Revenue.
H. P. Brandis, et al. and Trustees of Davidson College v. Harry
McMullen, Attorney General, et al.
E. L. Henderson v. Board of Trustees of East Carolina Teachers
College.
State ex rel. Gill, Commissioner of Revenue v. Victor B. Higgms,
Jr.
Henderson, et al., doing business as Henderson Flower Shop, v.
Gill, Commissioner of Revenue.
Charlie Cox v. Rosser, Commissioner of Motor Vehicles.
State ex rel. Gill, Commissioner of Revenue v. Singer, trading
as Singers Jewelers.
Pending Before North Carolina Industrial Commission
Mary Dale Pearson v. North Carolina School for the Deaf.
University of North Carolina and Russell M. Grumman v. John
C. Hebditch, et al.
Mrs. Willie Riddick v. State Board of Education.
Dora Jacobi v. University of North CaroHna.
C. E. Ward v. State Hospital at Morganton.
lola Williams Jones v. Board of Buildings and Grounds.
Mrs. Alex. T. Hester v. Board of Buildings and Grounds.
Elizabeth Hanna v. Guilford County Board of Education.
Hugh Anderson Johnson v. Warren County Board of Education.
J H Tadlock v. Bertie County Board of Education, et al.
DeLoatch v. Extension Service, State College and/or Gaston
County Board of Commissioners.
Disposed of Before North Carolina Industrial Commission
Robert Farley v. Division of Forestry and Parks, Dept. of Con-servation
and Development.
Riggsbee v. University of North Carolina.
Catherine Hargrove v. State Board of Education.
Ernest Basnight v. State School Commission.
Laurence C. Doll v. North Carolina State College.
29] BIENNIAL REPORT OF THE ATTORNEY GENERAL 7
Isaac Earl Brown v. Division of Forestry and Parks, Dept. of
Conservation and Development.
A. W. Perry v. North Carolina State College.
Woodrow D. Leatherman v. State Hospital at Morganton.
Lester C. Long v. Division of Forestry and Parks, Dept. of Con-servation
and Development.
Edward D. Todd v. Department of Conservation and Develop-ment.
Walter Miles, et al. v. State Board of Education.
Herman Grissom v. Department of Conservation and Develop-ment.
Genevieve H. West, et al. v. Department of Conservation and De-velopment.
Marcus Hill v. Department of Conservation and Development.
J. Clingman Griffin v. State Hospital Extension.
Pending in the Supreme Court of North Carolina
Wachovia Bank and Trust Company, et al. v. Harry McMullan,
Attorney General, et al.
Mrs. Mary Grey Sabine v. Gill, Commissioner of Revenue.
Disposed of in the Supreme Court of North Carolina
State Board of Education v. Martha W. Gallop, et al.
Gill, Commissioner of Revenue v. L. L. McLean.
P. M. Nesbitt v. Gill, Commissioner of Revenue.
In Re: Revocation of License to operate Motor Vehicle.
Atlantic Greyhound Corporation v. Utilities Commission.
Garrou Knitting Mills v. Gill, Commissioner of Revenue.
Appeals Pending in United States Supreme Court
George D. Whitaker, et al v. State of North Carolina.
E. E. Gentry v. State of North Carolina.
Appeals Disposed of in United States Supreme Court
Marvin Claude Bell v. State of North Carolina.
Philip M. Koritz, et al. v. State of North Carolina.
John Henry Brunson, et al. v. State of North Carolina.
Chester Hedgebeth v. State of North Carolina.
Disposed of in District Court of United States
U. S. of America, on relation of Tennessee Valley Authority v.
George Whitcomb, et al.
Pending in District Court of Appeals
Jeannette A. Noel v. Edson B. Olds, Jr. et al (Ackland Will
Case)
.
Pending Before Interstate Commerce Commission
State of North Carolina and Utilities Commission v. Aberdeen
and Rock Fish Railroad Company.
EXHIBIT II
List of Criminal Cases Argued by the Attorney General
AND His Associates Before the North Carolina Supreme
Court: Fall Term, 1946; Spring Term, 1947; Fall
Term, 1947 ; Spring Term, 1948.
FALL TERM, 1946
State V. Absher, from Wilkes; murder first degree; defendant
appealed ; new trial ; 226 N. C. 656.
State V. Ayers, from Avery ; violating liquor laws ; defendant ap-pealed
; affirmed ; 226 N. C. 579.
State V. C. Beasley, from Johnston ; possessing punch board —
resisting officer ; defendant appealed ; affirmed ; 226 N. C. 580.
State V. W. Beasley, from Johnston; violating liquor laws; de-fendant
appealed ; error and remanded ; 226 N. C. 577.
State V. Beatty, et al., from Gaston; A. W. I. rape; defendant
appealed; no error; 226 N. C. 745.
State V. Benton, from Richmond; rape; dependant appealed;
new trial; 226 N. C. 765.
State V. Biggerstaff, from Burke ; operating motor vehicle under
influence of liquor; defendant appealed; no error; 226 N. C.
603.
State V. Blackwell, from Gaston; A. D. W.; defendant appealed;
no error ; 226 N. C. 760.
State V. Blair, from Guilford; embezzlement; defendant ap-pealed;
reversed; (per cur.) 227 N. C. 70.
State V. Bowen, from Pitt; operating motor vehicle under in-fluence
of liquor ; defendant appealed ; no error ; 226 N. C. 601.
State V. Brown, from Randolph; violating motor vehicle laws;
defendant appealed; no error; 226 N. C. 681.
State V. Burgess, from Cabarrus ; A. W. L rape ; defendant ap-pealed;
no error; 226 N. C. 771.
.
State V. Cogdale, from Craven ; breaking and entering — A. W. 1.
rape ; defendant appealed ; no error ; 227 N. C. 59. ^ . ,
State V Ellison, from Watauga ; murder second degree ; defend-ant
appealed; new trial; 226 N. C. 628.
, ^ , .
State V. Fairley, from Robeson; manslaughter; defendant ap-pealed;
new trial; 227 N. C. 134.
, ^ . ,
State V. Floyd, from Northampton; murder first degree; de-fendant
appealed; no error; 226 N. C. 571.
^ ^ , 4.
State V. Gardner, from Buncombe; manslaughter; defendant
appealed; no error; 227 N. C. 37. , ^ ^^ ^ -p ^
State V. Cause, from New Hanover ; murder first degree ; defend-ant
appealed ; new trial ; 227 N. C. 26.
, ^ . -, .
State V. Grimes, from Nash; assault on female; defendant ap-pealed;
venire de novo; 226 N. C. 523.
^ _ ^ n ^ -,
State V. Harrell, from Hertford; murder first degree; defend-ant
appealed; dismissed; (per cur.) 226 N. C. 743.
[Vol. 29] biennial report of the attorney general 9
State V. Jackson, from Gaston; A. D. W. ; defendant appealed; no
error ; 226 N. C. 760.
State V. Johnson and Primus, from Wake ; rape ; defendants ap-pealed;
no error; 226 N. C. 671.
State V. Jones, et al., from Yadkin; breaking, entering, larceny;
defendants appealed ; new trial ; 227 N. C. 47.
State V. Jones, from Durham ; bigamy ; defendant appealed ; re-versed
; 227 N. C. 94.
State V. Kelly, from Anson; operating motor vehicle under in-fluence
of liquor; defendant appealed; new trial; 227 N. C. 62.
State V. Law, et al., from Forsyth; larceny and receiving; de-fendants
appealed; reversed; 227 N. C. 103.
State V. Martin, from Forsyth; murder first degree; defendant
appealed; no error; 227 N. C. 108.
State V. Matthews, et al., from Sampson; murder first degree;
defendants appealed ; no error ; 226 N. C. 639.
State V. Maynor, etc., from Sampson; violating liquor laws;
defendant appealed ; affirmed ; 226 N. C. 645.
State V. Montgomery, from Union ; murder first degree ; defend-ant
appealed ; remanded ; 227 N. C. 100.
State V. Mumford, from Durham; assault on female—breaking
and entering; defendant appealed; no error; 227 N. C. 132.
State V. McKnight, from Caldwell; breaking and entering; de-fendant
appealed; no error; 226 N. C. 766.
State V. Overcash, from Cabarrus ; A. W. I. rape ; defendant ap-pealed
; new trial ; 226 N. C. 632.
State V. Owenby, from Buncombe; carnal knowledge; defendant
appealed; new trial; 226 N. C. 521.
State V. Perry, et al., from Nash; A. D. W. ; defendant appealed;
no error; 226 N. C. 530.
State V. Peterson, from Sampson; voluntary manslaughter; de-fendant
appealed; no error (per cur.) ; 226 N. C. 770.
State V. Revels, et al., from Robeson; A. W. I. kill; defendants
appealed; no error; 227 N. C. 34.
State V. Rogers, from Mecklenburg; A. W. I. rape; defendant
appealed; afl^rmed; 227 N. C. 67.
State V. Smith, et al., from Mecklenburg ; violating liquor laws
;
defendants appealed ; no error ; 226 N. C. 738.
State V. Thomas, from Hoke; receiving stolen goods; defendant
appealed; dismissed; 227 N. C. 71.
State V. Thompson, from Lenoir; manslaughter; defendant ap-pealed;
no error; 226 N. C. 651.
State V. Thompson, et al., from Robeson; rape; defendants ap-pealed
; no error ; 227 N. C. 19.
State V. Wilson, from Guilford; violating liquor laws; defend-ant
apepaled; no error; 227 N. C. 43.
10 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
Docketed and Dismissed on Motion
State V. Nelson, from Richmond.
State V. Stack, from Mecklenburg.
State V. Nash, from Wake.
State V. Ewing, from Bladen.
State V. Whitchard, from Cherokee.
SPRING TERM, 1947
State V. Artis, from Duplin ; murder first degree ; defendant ap-pealed;
no error; 227 N. C. 371.
State V. Blanton, (Baird, Shore), from Mecklenburg; conspiracy
to suborn perjury; defendant Shore appealed; no error; 227
N. C. 517.
State V. Boldin, from Orange; manslaughter; defendant ap-pealed
; no error ; 227 N. C. 594.
State V. Brown, from Wake; rape; defendant appealed; no er-ror;
227N. C. 383.
State V. Brunson, from Forsyth; assault on female; defendant
apepaled; no error (per cur.) ; 227 N. C. 558.
State V. Cannon, from Wake; perjury; defendant appealed; no
error; 227 N. C. 336-338.
State V. Davenport, from Pitt; conspiracy to defraud, etc; de-fendant
appealed; no error; 227 N. C. 475.
State V. Ewing, from Cumberland ; manslaughter ; defendant ap-pealed;
no error; 227 N. C. 535.
State V. Godwin, from Cumberland; violating liquor laws; de-fendant
appealed ; new trial ; 227 N. C. 449.
State V. Horton, from Wilkes; murder first degree; defendant
appealed ; no error ; 227 N. C. 250.
State V. Hough, from Forsyth; manslaughter; defendant ap-pealed;
no error; 227 N. C. 596.
State V. James, et al., from Forsyth; injury to property, etc.;
defendants appealed; no error (per cur.) ; 227 N. C. 558.
State V. Johnson, from Forsyth; A. W. I. Rape; defendant ap-pealed;
new trial; 227 N. C. 587.
State V. Johnson, from Edgecombe; violating liquor laws; de-fendant
appealed; no error (per cur.) ; 227 N. C. 703.
State v. Jones, from Forsyth ; disturbing peace, etc. ; defendant
appealed; no error (per cur.) ; 227 N. C. 561.
State V. Jones, et al., from Durham; violating liquor laws; de-fendants
appealed; no error (per cur.) ; 227 N. C. 703.
State V. Jones, et al., from Columbus ; simple assault—attempted
highway robbery; defendant C. R. Jones appealed; no error;
227 N. C. 402.
State V. Johnnie Jones, from Edgecombe ; disorderly conduct—
A. D. W. ; defendant appealed ; reversed ; 227 N. C. 170.
State V. Jordan, from Forsyth; abortion; defendant appealed;
reversed; 227 N. C. 579.
29] BIENNIAL REPORT OF THE ATTORNEY GENERAL 11
State V. King, from Forsyth; disturbing peace, etc.; defendant
appealed; no error (per cur.) ; 227 N. C. 559.
State V. Kirksey, from Columbus; murder first degree; defend-ant
appealed; no error; 227 N. C. 445.
State V. Koritz, et al., from Forsyth; resisting, etc., police offi-cer;
defendant appealed; no error; 227 N. C. 552.
State V. Litteral and Bell, from Wilkes; rape; defendants ap-pealed;
no error; 227 N. C. 527.
State V. Moore, from Pitt; A. W. I. rape; defendant appealed;
new trial ; 227 N. C. 326.
State V. Phillips, from Harnett; murder first degree; defendant
appealed ; no error ; 227 N. C. 277.
State V. Pritchard, from Beaufort ; slander ; defendant appealed
;
no error ; 227 N. C. 68.
State V. Ragland, from Martin; rape; defendant appealed; no
error; 227 N. C. 162.
State V. Silver, from Franklin; assault on female; defendant
appealed ; reversed ; 227 N. C. 352.
State V. Staton, from Union; murder second degree; defendant
appealed ; new trial ; 227 N. C. 409.
State V. Thomas, et al., from Lree; larceny; defendant appealed;
no error; 227 N. C. 249,
State V. Warren, et al., from Pitt; larceny, conspiracy, etc.; de-fendant
Warren appealed ; no error ; 227 N. C. 380.
State V. Watkins, et al., from Forsyth ; A. D. W., resisting, etc.,
officers, etc.; defendants appealed; no error (per cur.) ; 227
N. C. 560.
State V. Wolfe, et al., from Wayne ; assault, breaking and enter-ing;
defendants appealed; new trial; 227 N. C. 461.
Slate V. Yow, from Forsyth; receiving stolen goods; defendant
appealed ; reversed ; 227 N. C. 585.
Docketed and Dismissed on Motion
State V. Sanders, et al., from Johnston.
State V. McLeod, from Scotland.
FALL TERM, 1947
State V. Bishop, from Buncombe; violating anti-closed shop;
defendant appealed; no error; 228 N. C. 371.
State V. Brooks, et al., from Henderson; murder first degree; de-fendants
appealed ; no error ; 228 N. C. 68.
State V. Carson, from Cleveland; abandonment; defendant ap-pealed;
reversed; 228 N. C. 151.
State V. Childress, from Surry; murder second degree; defend-ant
appealed ; new trial ; 228 N. C. 208.
State V. Coffey, from Caldwell; murder second degree; defend-ant
appealed; reversed; 228 N. C. 119.
State V. Correll, from Wilkes; manslaughter; defendant ap-pealed;
new trial; 228 N. C. 28.
12 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
State V. Dawson, from Lenoir; involuntary manslaughter; de-fendant
appealed; no error; 228 N. C. 85.
State V. DeBerry, from Wake; A. D. W. ; defendant appealed; no
error; 228 N. C. 147.
State V. DeMai, from Nash ; murder first degree ; defendant ap-pealed;
no error; 227 N. C. 657.
State V. Dickey, et al., from Rutherford ; A. W. I. rape—assault
on female; defendants appealed; no error (per cur.) ; 227 N. C.
State V. Edwards, et al., from Wake; larceny—A. D. W. ; de-fendants
appealed; no error; 228 N. C. 153.
State V. Ensley, from Cumberland; murder second degree; de-fendant
appealed; no error; 228 N. C. 271.
State V. Flinchem, from Wilkes ; operating motor vehicle under
influence of liquor; defendant appealed; reversed; 227 N. C.
149.
State V. Flinchem, from Wilkes ; reckless driving ; defendant ap-pealed
; new trial ; 227 N. C. 149.
State V. Forshee, from Cumberland; A. W. I. kill; defendant
appealed; no error; 228 N. C. 268.
State V. Foster, et al., from Wilkes; gambling; defendants ap-pealed
; error and remanded ; 228 N. C. 72.
State V. Gibbs, from Yancey; violating liquor laws; defendant
appealed; no error; 227 N. C. 677.
State V. Harvey, from Craven; manslaughter; defendant ap-pealed
; reversed ; 228 N. C. 62.
State V. Hedgebeth, from Washington; A .D. W.-robbery; de-fendant
appealed ; affirmed ; 228 N. C. 259.
State V. Hooper, from Buncombe ; burglary first degree ; defend-ant
appealed ; new trial ; 227 N. C. 633.
State V. Law, et al., from Forsyth; larceny and receiving; de-fendants
appealed; no error; 228 N. C. 443.
State V. Little, from Durham; murder first degree; defendant
appealed ; new trial ; 228 N. C. 417.
State V. Lovelace, from Mecklenburg; violating Bangs Disease
regulation; State appealed; special verdict; reversed; 228
N. C. 186.
State V. Minton, from Wilkes; manslaughter; defendant ap-pealed;
new trial; 228 N. C. 15.
State V. McMahan, from Guilford; involuntary manslaughter;
defendant appealed; no error; 228 N. C. 293.
State V. Phillips, from Durham; false pretense; defendant ap-pealed;
judgment arrested; 228 N. C. 446.
State V. Pool, from Mecklenburg ; crime against nature ; defend-ant
appealed; affirmed without written opinion; 228 N. C.
State V. Randolph, from Mecklenburg; A. W. L kill; defendant
appealed; no error; 228 N. C. 228.
State V. Reavis, from Davie; violating liquor laws; defendant
appealed; reversed; 228 N. C. 18.
State v. Riddle, et al., from Madison ; murder second degree ; de-fendants
appealed; new trial; 228 N. C. 251.
29] BIENNIAL REPORT OF THE ATTORNEY GENERAL 13
State V. Simmons, from Sampson; rape; defendant appealed;
new trial ; 228 N. C. 258.
State V. Snead, from Harnet; murder second degree; defendant
appealed; new trial; 228 N. C. 37.
State V. Stanley, from Edgecombe; murder first degree; de-fendant
appealed ; no error ; 227 N. C. 650.
State V. Stiles, from Cherokee; nonsupport; defendant appealed;
new trial ; 228 N. C. 137.
State V. Sullivan, from Buncombe; breaking and entering; de-fendant
appealed ; error and remanded ; 227 N. C. 680.
State V. Warren and Brown, from Wilkes; larceny and receiv-ing;
defendants appealed; Warren—reversed; Brown—no er-ror;
228 N. C. 22.
State V. Weaver, from Harnett; manslaughter; defendant ap-pealed
; new trial ; 228 N. C. 39.
State V. Webb, from Moore; perjury; defendant appealed; no
error; 228 N. C. 304.
State V. Whitaker, et al., from Buncombe; violation anti-closed
shop law; defendants appealed; no error; 228 N. C. 352.
State V. Wiggins, from Craven; sci. fa. and capias; effect of va-cating
order ; appeal by sureties on bond ; reversed ; 228
N. C. 76.
State V. Woolard, from Beaufort; carnal knowledge; defendant
appealed ; new trial ; 227 N. C. 645.
State V. Yancey, from Cumberland; false pretense; defendant
appealed; reversed; 228 N. C. 313.
Docketed and Dismissed on Motion
State V. O'Dear and Messer, from Jackson.
State V. Cherry, from Northampton.
State V. Douglas, from Davie.
State V. Johnson, et al., from Wilkes.
State V. Little, from Wake.
State V. Lampkin, et al., from Mecklenburg.
State V. Breeze, from Orange.
SPRING TERM, 1948
State V. Alston, from Warren ; murder second degree ; defendant
appealed; new trial; 228 N. C. 555.
State V. Anderson, from Pitt; arson—murder first degree; de-fendant
appealed ; no error ; 228 N. C. 720.
State V. Baker, from Richmond; unlawful practice of medicine;
defendant appealed; no error; 229 N. C. 73.
State V. Barrier, from Cabarrus; violating liquor laws; defend-ant
appealed; error and remanded; 228 N. C. 951.
State V. Bell, et al., from Yadkin; robbery with firearms; de-fendants
appealed; (1) no error; (2) reversed; 228 N. C. 659.
State V. Bryant, from Pitt; carnal knowledge; defendant ap-pealed;
no error; 228 N. C. 641.
14 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VoL.
State V. Choate, from Surry; criminal abortion; defendant ap-pealed
; new trial ; 228 N. C. 491.
State V. Culberson, from Davie; murder second degree; defend-ant
appealed; no error; 228 N. C. 615.
State V. Daniel, from Wilson ; A. W. I. kill ; defendant appealed
;
new trial ; 228 N. C. 536.
State V. Gardner, from Buncombe ; manslaughter ; defendant ap-pealed
; no error ; 228 N. C. 567.
State V. Gentry, from Caldwell; embezzlement; defendant ap-pealed;
no error; 228 N. C. 643.
State V. Glidden Company, from Caldwell; polluting waters;
State appealed ; affirmed ; 228 N. C. 664.
State V. Grant, from Swain ; manslaughter ; defendant appealed
;
new trial; 228 N. C. 522.
State V. Hammond, et al., from Davidson; murder first degree;
defendants appealed ; no error ; 229 N. C. 108.
State V. Hawley, from Granville ; murder first degree ; defendant
appealed ; new trial ; 229 N. C. 167.
State V. Holbrook, from Yadkin ; violating liquor laws ; defend-ant
appealed ; no error ; 228 N. C. 582.
State V. Holbrook, from Yadkin; operating motor vehicle in-toxicated—
reckless driving ; defendant appealed ; no error ; 228
N. C. 620.
State V. Hooks, from Randolph; rape; defendant appealed; no
error; 228 N. C. 689.
State V. Jackson, from Burke; murder first degree; defendant
appealed; no error; 228 N. C. 656.
State V. Larkin, from Robeson ; receiving stolen goods, etc. ; de-fendant
appealed ; new trial ; 229 N. C. 126.
State v. Love, from Robeson; violating liquor laws; defendant
appealed; new trial; 229 N. C. 99.
State V. Massengill, et al., from Johnston; larceny; defendants
appealed; new trial; 228 N. C. 612.
State V. Minton, from Edgecombe; breaking and entering; de-fendant
appealed ; reversed ; 228 N. C. 518.
State V. Peterson, from Duplin; violating liquor laws; defend-ant
appealed ; no error ; 228 N. C. 736.
State V. Phillips, from Harnett; murder first degree; defendant
appealed ; no error ; 228 N. C. 595.
State V. Ray, from Vance; hit and run driving; defendant ap-pealed;
reversed; 229 N. C. 40.
State V. Speller, from Bertie; rape; defendant appealed; re-versed
; 229 N. C. 67.
State V. Steelman, from Wilkes ; reckless driving ; defendant ap-pealed;
no error; 228 N. C. 634.
State v. Sutton, from Washington ; assault on female ; defendant
appealed ; no error ; 228 N. C. 534.
State V. Swink, from Guilford; rape; defendant appealed; new
trial; 229 N. C. 123.
State V. West, from Robeson; violating liquor laws; defendant
appealed; new trial; 229 N. C. 99.
;i9] BIENNIAL REPORT OK THE ATTORNEY GENERAL 15
State V. Wooten, et al., from Martin; manslaughter; defendants
appealed; no error; 228 N. C. 628.
Docketed and Dismissed on Motion
State V. Jenkins, from Jackson.
State V. Stanley, from Buncombe.
State V. Connor, from Buncombe.
State V. Parrot, from Lenoir.
State V. Pulliam, from Rockingham.
SUMMARY
Affirmed on Defendant's Appeal 87
Affirmed on State's Appeal 1
New trial or reversed on Defendant's Appeal 56
Reversed on State's Appeal 1
Error and remanded 4
Remanded for judgment 1
Judgment arrested 1
Appeals Dismissed 21
172
Fees Transmitted by Attorney General to State Treasurer Since
February Term, 1946, Through February Term, 1948
State V. Biggerstaff $10.00
State V. Bowen 10.00
State V. Thompson 10.00
State V. Stack 10.00
State V. Maynor 10.00
State V. Brown 10.00
State V. Burgess 10.00
State V. Smith, et al 20.00
State V. Beasley 10.00
State V. Perry, et al 20.00
State V. Beatty, et al 30.00
State V. Blackwell 10.00
State V. Peterson 10.00
State V. McKnight 10.00
State V. Matthews, et al 20.00
State V. Thomas 10.00
State V. Cogdale 10.00
State V. Montgomery 10.00
State V. Revels, et al 20.00
State V. Rogers 10.00
State V. Jackson 10.00
State V. Mumford 10.00
State V. Pritchard 10.00
State V. Wilson 10.00
16 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 29]
State V. Phillips 10.00
State V. Johnson 10.00
State V. Cannon 10.00
State V. Ayers 10.00
State V. Thomas, et al 20.00
State V. Warren 10.00
State V. Brunson 10.00
State V. .King 10.00
State V. Jones 10.00
State V. James, et al 20.00
State V. Watkins, et al 40.00
State V. Jones and Haithcock 20.00
State V. Ewing 10.00
State V. Litteral and Bell 10.00
State V. Blanton (Shore) 10.00
State V. Koritz, et al 30.00
State V. Boldin 10.00
State V. Davenpoi-t 10.00
State V. Jones 10.00
State V. Gardner 10.00
State V, Stanley 10.00
State V. Warren, et al 10.00
State V. Gibbs 10.00
State V. DeMai 10.00
State V. DeBerry 10.00
State V. Pool 10.00
State V. Randolph 10.00
State V. Johnson, et al 10.00
State V. Hedgbeth 10.00
State V. Bishop 10.00
State V. Law, et al 20.00
State V. Ensley 10.00
State V. McMahan 10.00
State V. Whitaker, et als 70.00
State V. Dawson 10.00
Nesbitt V. Gill 20.00
State V. Dickey and Logan 20.00
State V. Sutton 10.00
State V. Holbrook 10.00
State V. Holbrook 10.00
State V. Culberson 10.00
State V. Gentry 10.00
State V. Bell, et al 20.00
State V. Steelman 10.00
State V. Bryant 10.00
State V. Wooten and Ward 20.00
State V. Peterson 10.00
State V. Baker 10.00
State V. Webb 10.00
$980.00
SUMMARY OF ACTIVITIES
Staff Personnel
There were several important changes in the staff personnel during the
biennium. Mr. T. W. Bruton, after serving as Lieutenant-Colonel in the
Army of the United States, returned to the office on July 15, 1946, having
been on leave of absence since July 3, 1942. Mr. Frank P. Spruill, Jr.,
resigned as Assistant Attorney General and returned to the practice of
law. Mr. James E. Tucker, who had been a member of the legal staff since
1939 was named as Assistant Attorney General and assigned to the
Revenue Department.
Under authority of an Act of the last Legislature increasing the staff
of this office, Mr. Peyton B. Abbott was appointed as Assistant Attorney
General and assigned to the Revenue Department.
Mr. Philip E. Lucas resigned his position as a member of the staff and
entered private practice. Mr. Forrest H. Shuford, II, was appointed a mem-ber
of the research staff on June 1, 1947, and is now serving in that
capacity. Mr. Calder W. Womble was appointed a member of the research
staff of the office on September 1, 1947, and is now serving in that capacity.
Assistant Attorney General Ralph Moody and Assistant Attorney General
Hughes J. Rhodes served throughout the biennium.
The secretarial staff of the office during the biennium was as follows:
Mrs. Margaret York Wilson, Miss Elizabeth Flournoy, Miss Ruby Thomas,
Miss Elizabeth Kelly, Miss Lillian Turner, Mrs. Grace H. Baker, Mrs.
Betty Smith and Miss Laurie Barefoot.
By Chapter 114 of the Session Laws of 1947 a member of the staff of
this office was assigned to the duties provided by law in connection with
the General Statutes Commission, to be known as the Revisor of Statutes.
Mr. Harry W. McGalliard, who had theretofore acted in that capacity, was
named to this position.
Mr. Clifton W. Beckwith continued to act as the Director of the Division
of Legislative Drafting and Codification of Statutes and also as the head
of the Statistical Division of the office.
State Bureau of Investigation
During the biennium, Mr. Walter F. Anderson continued to act as
Director of this Bureau. By reason of increased appropriations made by
the last General Assembly, his staff was increased to meet the demands
being made upon them for service within the field of its operations.
There is included in the Biennial Report the report made by Mr. Ander-son,
as Director of the Bureau of Investigation, to which attention is
directed.
Revenue Department and Motor Vehicles Department
In accordance with the statute, Mr. James E. Tucker and Mr. Peyton B.
Abbott, as Assistant Attorneys General, were assigned to the Revenue
Department and also acted as the immediate contact members of this staff
for the Motor Vehicles Department.
18 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
The greatly increased tax collections of the Department of Revenue
necessitated more than the usual amount of legal advice to the Commis-sioner
of Revenue and other officials of this department. The Attorney
General is required to approve all refunds made by the Deparment of
Revenue. This assignment involves a large amount of work as the refunds
are very numerous. During the biennium a total of 7491 were approved;
250 were rejected. We are pleased to acknowledge the finest possible co-operation
on the part of the Commissioner of Revenue, Mr. Edwin Gill,
and all of his staff. During the biennium he has provided additional office
space in the Revenue Building, so that that branch of the office is now
comfortably housed and has a very complete library, necessary in dealing
with matters of taxation.
The State was fortunate in avoiding any large amount of tax litigation.
At a later point this report will call attention to litigation now pending
and settled during the biennium, affecting this department of the State
Government.
The General Assembly of 1947 enacted two very important Acts, one
known as the Motor Vehicle Highway Safety Act, Chapter 1067 of the
Session Laws of 1947, and the other the Motor Vehicle Safety and Respon-sibility
Act, Chapter 1006 of the Session Laws of 1947.
The administration of these two Acts has greatly inci-eased the duties
imposed upon the Commissioner of Motor Vehicles and has necessitated
a great deal of work in the legal department of the State. In the drafting
of this legislation and in the adminstration of it, the Assistant Attorneys
General assigned to the Revenue Department and the Motor Vehicles De-partment
have rendered an extensive service. I am glad to acknowledge
the fine cooperation of the Commission of Motor Vehicles, Colonel L. C.
Rosser, and the other officials of that department. The enactment of these
laws has greatly increased the work of this office, in addtion to rendering
the legal services necessary in the assessment and collection of motor
vehicle taxes collected by the Motor Vehicles Department.
Division of Legislative Drafting and Codification of Statutes
During the session of the General Assembly of 1947, the facilities of this
office were extensively employed by the members of the General Assembly
and State and local officials in the drafting of legislation which was con-sidered
at that time. The total number of bills prepared in this office dur-ing
the session was 1750, many of which were written several times before
getting in final form for presentation.
While the assistance rendered in the preparation of bills consumed a
great deal of time, it is believed that this service is of such value to the
State as to justify the attention given it. The General Assembly has here-fore
adopted Resolutions expressing appreciation of the service performed
for them. It is a source of satisfaction to have been able to render this
service, as required by Article 2 of Chapter 114 of the General Statutes.
The General Statutes Commission, created by Chapter 157 of the Session
Laws of 1945, continued to function during the biennium and rendered a
valuable service in the careful and painstaking way in which they per-formed
the duties of their office. The personnel of the Commission during
29] BIENNIAL REPORT OP THE ATTORNEY GENERAL 19
the biennium was as follows: Mr. Robert F. Moseley, who was elected
Chairman, Mr. I. M. Bailey, Mr. I. Beverly Lake, Mr. Luther E. Earnhardt,
Mr. Frank W. Hanft, Mr. Fred B. Helms, Mr. Malcolm McDermott, Mr.
Henry A. McKinnon and Mr. Ralph H. Ramsey, Jr. Near the end of the
biennium, Mr. Albert R. Menard, Jr. succeeded Mr. Lake. Mr. Harry W.
McGalliard, as Revisor of Statutes, acted as the Executive Secretary of
this Commission, with the assistance of Mr. Clifton W. Beckwith, who sat
with the Commission at all of its meetings. A full report of the activities
of the Commission will be made to the General Assembly by the Commis-sion,
as required by law.
As required by law, the division has had the responsibility of the codi-fication
of the Acts of the General Assembly to be included in the annual
supplements to the General Statutes, published by The Michie Company.
Unfortunately, due to the great delay of the publication of the Session
Laws of 1947 and the delay incident to the difficulties of the publishers in
securing adequate help, the supplement was late in being delivered. Every
effort will be made at the next session to secure a more prompt publication
of the supplement.
In accordance with the contract entered into between the Attorney
General and The Michie Company, The Michie Company has by written
contract assigned to the State of North Carolina an equal copyright Interest
in and to the following editorial features of the General Statutes of North
Carolina:
(1) The statutory arrangement which is defined to include the "catch
lines" and topics and the historical citations at the end of each statute to
prior session laws or codes in which the statutes or parts thereof may be
found;
(2) The tables of contents;
(3) The frontal analyses;
(4) and the comparative tables, on the condition that the State shall
allow the Company to use at any time, those comparative tables prepared
or supplied by the State and incorporated in the 1943 Edition of the Gen-eral
Statutes of North Carolina.
Due to the bulk now attained by the four volumes of the General Statutes,
it is obvious that consideration will have to be given to the republication
of the General Statutes to include the laws enacted after the 1949 session
of the General Assembly. Plans for the republication of the General
Statutes will have to be made well in advance and it is, therefore recom-mended
that some consideration be given to this subject by the next Gen-eral
Assembly.
The work of the Division of Criminal and Civil Statistics has continued
under the direction of Mr. Clifton W. Beckwith. There is included in this
Biennial Report a compilation of the statistics covering the activities of our
criminal courts, other than the courts of justices of the peace, and a sum-marization
of the civil cases tried in our Superior Courts during the bien-nium.
The recommendation is renewed that was heretofore made that
some plan be worked out to pay the clerks of the Superior Court and in-ferior
courts a reasonable fee for the service rendered in preparing and
submitting the statistical reports required of them. This is an onerous
service for which no compensation is provided.
20 biennial report op the attorney general [vol.
Office Conferences and Consultations With State Officers
AND Departmental Officials
In accordance with the provisions of the Constitution and laws of this
State, the Attorney General is made the legal advisor for all State officers,
departments, bureaus and institutions, and during the biennium the per-formance
of this duty has called for numerous office conferences and oral
and written opinions furnished to solve the legal questions presented. This
report includes a number of written opinions furnished State officials. The
numerous office conferences are not recorded and no statistics are accum-mulated
as to the time and results of these conferences. *
Appreciation is expressed to Governor R. Gregg Cherry, and all other
State officials, for the splendid cooperation which we have received during
the biennium and the assistance they have given to us in performing this
service.
Advisory Opinions to Local Officials
The practice which has been followed in this State for many years of
furnishing advisory opinions to county, city and other local officials has
been continued with increased demands being made upon the office. The
services rendered in this respect consume a great deal of the time of the
Attorney General and his Assistants in attempting to answer the numer-ous
questions of administrative law and procedure which arise in local
governments. The service has been one which is apparently appreciated by
local officials and has doubtless resulted in solving many local problems
and provided uniformity in practice and procedure in the important func-tions
of local government.
While the opinions of this office furnished to local officials are advisory
only, they are generally accepted as a method of determination of prob-lems
which could not otherwise be settled. A digest of the opinions of the
office to local officials is published in POPULAR GOVERNMENT, a maga-zine
of the Institute of Government of the University of North Carolina,
and some of these opinions are periodically carried in the press of the
State. Digests of opinions of special interest to cities and towns are mimeo-graphed
and distributed through the North Carolina League of Municipali-ties.
The rendering of advisory opinions to local governments, while un-official,
is an important function and responsibility of the office.
State Banking Commission
During the biennium the Attorney General has sat as an ex officio mem-ber
of the State Banking Commission and has participated in the consider-ation
of many problems confronting this commission. A report of the activi-ties
of this commission will be made through the Commissioner of Banks.
State Board of Assessment
As an ex officio member of the State Board of Assessment, the Attorney
General has sat in at the meetings of this board during the biennium. It is
recomended that consideration be given to provide an Executive Secretary
29] BIENNIAL REPORT OF THE ATTORNEY GENERAL 21
for the State Board of Assessment who will give his entire time to con-sideration
of the problems of assessment of property of the public utilities
and other duties of the office. The functions are now performed by the
Director of the Franchise Division of the Department of Revenue.
Teachers' and State Employees' Retirement System
As required by law, this department has furnished legal services to the
Board of Trustees of the Retirement System during the biennium. We have
had fine cooperation from its Director, Mr. Nathan H. Yelton. The legal
work in this connection grows with the increasing responsibilities and
payments being made by the system to retired State employees. No partic-ular
legal problems have arisen to cause any difficulty during the biennium.
State Board of Public Welfare and State Commission for the Blind
During the biennium this office has acted as legal advisor for the State
Board of Public Welfare and State Commission for the Blind. Numerous
legal opinions and office conferences have been required in order to perform
this service. We have had the finest cooperation from Dr. Ellen Winston,
Commissioner of Public Welfare, and Mr. H. A. Wood, Executive Secretary
of the State Commission for the Blind, and other officials of the two
agencies.
The important work done by these social agencies in caring for the needs
of the worthy people of the State has involved many legal questions. It
has been a source of satisfaction to have been able to cooperate in their
solution.
State Department of Agriculture
Frequent conferences with officials of the State Department of Agricul-ture
have been necessary to render legal assistance in problems which have
arisen in that department. Many legal opinions were given during the
biennium and numerous office conferences held. The expanding duties of the
Department of Agriculture, touching in so many ways the life of the people
of the State, have been a source of many problems, which we hope have
been satisfactorily solved. We are glad to acknowledge the fine cooperation
of the Commissioner of Agriculture, Mr. W. Kerr Scott, and all the mem-bers
of his staff.
Department of Conservation and Development
The Department of Conservation and Development is one of the larger
State Departments. The extent of the functions now performed by this
department, includes the administration of state forests and parks, forest
fire controls, the protection and development of forests, the promotion and
development of commerce and industry, and the administration of the
commercial fishery laws and the propagation of fish and oysters. The De-partment
constantly calls upon the facilities of this office for legal assist-ance.
This office has attempted to serve all of these demands, and wishes
to acknowledge with appreciation the cooperation it has had from the
director, Mr. R. Bruce Etheridge, and his entire staff.
22 biennial report op the attorney general [vol.
Industrial Commission and Workmen's Compensation Payments
All state employees, except the elected officials, are subject to the provi-sions
of the Workmen's Compensation Act. It necessarily follows that with
so many people employed, there are numerous accidents arising out of and
in the course of employment, some of which are fatal. The total amount
of Workmen's Compensation claims now exceeds $75,000.00 a year, and the
tendency is for a steady increase in these payments. While the State High-way
and Public Works Commission has handled the settlement of claims
through its own legal staff arising out of injuries to its employees, much
of the time of this office is spent in examining and making appearances
before the North Carolina Industrial Commission, on account of injuries
sustained by the employees of all the state departments, boards, commis-sions
and institutions, except the State Highway and Public Works Com-mission.
During the past biennium, it has been necessary for members of the
staff of this office to make personal appearances before the North Caro-lina
Industrial Commission at its hearings in the many sections of the
State. Appearances have been made as far east as Manteo and as far west
as Murphy. This office is delighted to render this service, since in my opin-ion,
every claim against the State should be passed upon from a legal
standpoint, in apt time before an agreement for compensation is entered
into. I wish to take this opportunity to express my thanks to the heads
of the several departments, boards, commissions and institutions for the
fine cooperation which I have had in servicing these claims.
North Carolina Wildlife Resources Commission
The 1947 North Carolina General Assembly created the North Carolina
Wildlife Resources Commission and placed under it the duties heretofore
performed by the North Carolina Game Commission and Division of In-land
Fisheries. This department has a large number of employees, and
many legal problems arise from time to time which merit the attention
of this office. It has been a pleasure to advise and counsel with the head
of the Commisison as to its many legal problems.
Other State Departments and Agencies
During the biennium, this office has had numerous requests for confer-ences
and oral and written advisory opinions to other State departments,
agencies and institutions. Among the ones most frequently calling upon us
for legal assistace and advice have been the State Board of Alcoholic Con-trol,
the Banking Department, the Adjutant General's Office, the Budget
Bureau, the State Board of Elections, the Local Government Commission,
the Division of Purchase and Contract, and the various other boards and
commissions.
During the course of the biennium, the staff of the office has had occasion
to be called upon by all of the State departments, institutions and agencies
for legal assistance and advice. The demands for brevity in this summary
exclude a detailed statement of these matters.
29] biennial report of the attorney general 23
Criminal Cases of Special Interest
State V. George Whitaker, A. M. DeBrnhl, T. G. Embler, H. E. Setzer,
J. E. Rogers, Fred Black and R. B. Robertson, 228 N. C. 352
The defendants, George Whitaker, an employer, and A. M. DeBruhl, an
officer and agent of the Asheville Building and Construction Trades Council,
and others, officers and agents of local trade unions and organizations, were
charged with executing a written agreement or contract whereby persons
not members of certain Labor Unions and Organizations are denied the
right to work for said employer, or whereby membership is made a condi-tion
of employment or continuation of said employment, and whereby said
unions acquire an employment monopoly in any and all enterprises which
may be undertaken by said employer, all of which was in violation of Sec-tions
2, 3, and 5 of Chapter 328 of the Session Laws of 1947.
The defendants were convicted in the Police Court of the City of Ashe-ville
and appealed to the Superior Court where each of the defendants
was convicted by a jury. The defendants then appealed to the Supreme
Court alleging: (1) A violation of the statutes in question did not amount
to a criminal offense; and (2) the statutes in question were enacted in
violation of Article I, Section 17, of the Constitution of North Carolina, in
violation of the Due Process and Equal Protection Clauses of the Four-teenth
Amendment to the Federal Constitution, and in violation of the
freedom of speech in Assembly guaranty of the First Amendment.
The Supreme Court found that a violation of the statutes did amount
to a criminal offense. It further held that the State, by general legislative
act, may, in the exercise of its police power, condemn private contracts
found to be injurious to the public welfare. As the action of the Legisla-ture
was found to be neither arbitrary nor capricious, and had a reason-able
relation to the end sought to be accomplished, the Supreme Court
held that in the result of the trial below there was no error.
The defendants have perfected an appeal to the Supreme Court of the
United States in this action and appeal is now pending in that Court.
State V. Thomas Pinkney Bishop, 228 N. C. 371
This was a companion case to STATE v. WHITAKER, 228 N. C. 352,
and the constitutional issues raised here were answered in that case. The
defendant was found guilty of violating Chapter 328, Session Laws of
1947, in that he did require an employee to remain a member of a labor
union. The defendant appealed to the Supreme Court.
The defendant alleged that, as the statute did not declare the violation
thereof to be criminal nor provide a penalty therefor, a violation of said
statute would not amount to a criminal act. The Supreme Court held that
where a statute enacted in the public interest commands an act to be done
or prescribes the commission of an act, and no penalty is expressly provided
for its breach, its violation may be punished as a misdemeanor as at Com-mon
Law.
24 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
State V. Hammond, 229 N. C. 108
The defendants, George Hammond and Henderson Wilson, were indicted
in the Superior Court of Davidson County upon a charge of first degree
murder in connection with the killing of Robert B. Hayes. The evidence
disclosed that on the night of October 31st, 1947, the defendants entered
a store and filling station which the deceased owned and operated, killed
the deceased with a car jack, broke open a cash box and fled. Both of the
defendants voluntarily confessed to having committed the crime. They
were convicted of murder in the first degree and appealed to the Supreme
Court from the judgment rendered on the verdict. The Supreme Court,
after considering the exceptions, found no error in the trial below.
State V. Davenport, 227 N. C. A75, ("Big Apple" Case)
The defendant, along with C. T. Jones, Johnnie Heath, J. R. Hunning,
S. H. Powers, Al Whorton and Wilson Boyles, was indicted upon charges
of conspiracy to obtain money by means of false pretense and of obtaining
money under false pretense at the August Term, 1944, Pitt County Superior
iCourt. The trial in the Superior Court in this case consumed a period of
five weeks. The defendant was convicted upon these charges and appealed
to the Supreme Court.
The record on appeal to the Supreme Court consisted of more than
1200 pages of evidence, including exhibits, and contained 440 assignments
of error and more than 1700 exceptions.
The evidence discloses that the defendant and his associates concocted
a scheme whereby they were to borrow money and pay interest thereon
at the rate of five per cent (59o) per week and loan it out at an interest
rate of ten per cent (10%) per week. According to the State's evidence, in
the furtherance of this scheme, the defendant borrowed more than $1,900,-
000.00 over a short period of time and during this time loaned out only
about one-tenth of the amount of money he had received on deposit from
his victims.
On the appeal to the Supreme Court, the defendant's counsel filed a vol-uminous
brief and argued all of his exceptions. It was a laborious and pains-taking
task for the staff of this office to prepare the State's brief and
argue the case before the Supreme Court. The Court very carefully con-sidered
all the assignments of error and decided that no prejudicial error
was committed in the trial of the case below.
State V. Churlie Phillips, 227 N. C. 277
The defendant in this case was tried under a bill of indictment charging
the first degree murder of his wife. The evidence disclosed that he shot
and killed his wife in culmination of family discord occasioned by his
infidelity and bigamous marriage to another woman. The State's evidence
was largely circumstantial, and the defendant, in his first appeal, relied
wholly upon his motions to nonsuit. The Court held, however, that the
evidence was sufficient to be submitted to the jury, and the defendant was
convicted of the crime charged.
29] BIENNIAL REPORT OF THE ATTORNEY GENERAL 25
Shortly before the date set for his execution, however, an alleged suicide
note was found and counsel for the defendant made a motion for a new
trial upon the grounds of newly discovered evidence. This motion was
granted in the Superior Court and the defendant was again brought to trial
upon a charge of first degree murder. The jury again convicted him and
he again appealed to the Supreme Court (228 N. C. 595). The Supreme
Court again affirmed this conviction, but before the date set for his execu-tion,
his sentence was commuted to life imprisonment by the Governor.
State V. Wall C. Ewing, 227 N. C. 5S5
The defendant here was tried on an indictment charging him with the
murder of his wife. The verdict of the jury was that of guilty of man-slaughter,
and the defendant was sentenced to prison for a term of not
less than 18 nor more than 20 years. On account of the prominence of the
parties concerned, state-wide interest was attracted to the trial.
On appeal the defendant relied solely upon his motions to nonsuit for
insufficiency of the evidence to be submitted to the jury. The Supreme Court
sustained the action of the lower Court in overruling these motions.
State V. Blanton, 227 N. C. 517
This case was known in the State as the "divorce racket" case. It ap-peared
from the evidence that the defendant, Ward Blanton, conceived
the idea of finding persons in the State of South Carolina who desired
divorces and having them come to the County of Mecklenburg, in North
Carolina, and obtain divorces in the Superior Court of that County. It
should be stated that divorces are not granted in the State of South Caro-lina.
It further appeared from the evidence that the procuring of these
divorces was handled according to a plan or pattern which was followed
in each case. The defendant, Blanton, made it his business to seek out
persons in South Carolina who desired divorces and arrange to have them
come to Charlotte, North Carolina, where the complaints were prepared,
usually by the defendant, Vivian Baird. These persons were then pro-vided
with an address in Charlotte and were given various instructions
about their cases, including the matter of residence. These plaintiffs, seek-ing
divorces, all came to the same office and were charged varying sums
from $100.00 to $150.00 or more per case. The cases were tried in Court
by W. T. Shore, a practicing attorney and a defendant in this case. Many
exhibits were introduced into evidence showing the number of divorce
cases tried and the residence of the persons obtaining these divorces. The
defendants, Blanton, Baird and Shore, were convicted of a conspiracy to
procure persons to commit wilful and corrupt perjury before the Courts
of the State of North Carolina or, in other words, the crime of subornation
of perjury.
State V. G. D. Gardyier, 226 N. C. 311
State V. G. D. Gardner, 227 N. C. 37
The defendant. Doctor G. D. Gardner, was indicted in the Superior
Court of Buncombe County for manslaughter in connection with the death
of Mrs. Lois E. Cordell. Doctor Gardner lived in Asheville for thirty-
26 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
seven years and had been convicted of violations of the narcotic laws. His
license had been revoked sometime during the year of 1939. The deceased,
Lois Cordell, was twenty-three years of age and lived in an apartment
in Asheville, her husband at the time of her death being in the Army. On
October 23, 1945, a funeral home at Asheville went to Doctor Gardner's
home, where the body of the deceased, Lois Cordell, was on the bed. The
body was taken to the funeral home and was examined by the coroner
and various physicians. The substance of the expert testimony was to
the effect that an examination revealed that an abortion had been per-formed
and that this operation severed the arteries or veins in the uterus,
there being a large, jagged wound in the uterine wall; and the nature
of the wound was such that the deceased could not have lived more than
fifteen to thirty minutes. Doctor Gardner admitted that the deceased
was at his home and died between 1:15 and 1:30 o'clock and that he
called the coroner about 2:00 or 3:00 o'clock that afternoon. He insisted,
however, that the deceased came to his home in the condition in which
she was found and that he had not performed any operation. The jury
convicted the defendant of manslaughter; and on appeal to the Supreme
Court, he was awarded a new trial on the improper admission of evidence.
The case was tried again in Buncombe County on virtually the same evi-dence
except the State, on the second trial, was able to prove that before
the body of the deceased, Lois Cordell, was found at the home of Doctor
Gardner, he had been to a repair shop and requested the men at the
repair shop to repair a set of forceps or a curette; and upon being told
that they could not, at that time, make the necessary repairs. Doctor
Gardner ran a wire through the forceps or curette, twisted the wire and
cut off the ends, leaving the instrument in such shape that it could have
made the jagged wounds found on the body of the deceased. The jury
again convicted the defendant of manslaughter, and this conviction was
affirmed by the Supreme Court.
State V. Brooks, Brovm & Munn, 228 N. C. 68
The defendants were all prisoners serving sentences under the super-vision
of the State Highway and Public Works Commission and were
working in a Prison Camp in Henderson County. The evidence shows
that these three defendants planned to escape and that it was a part of
their plan to overpower a guard and obtain his rifle in order to effectuate
the escape. On March 3, 1947, the defendants decided to carry out their
plan of escape, and the prisoners were ordered to leave the quarry pre-paratory
to setting off a charge of dynamite. The defendant. Brown,
entered a guardshack, followed by Brooks and Munn. The guard was
overpowered, and his rifle was taken by Brooks ; and this guard was thrown
or knocked down an embankment fifteen or twenty feet from the guard-shack.
The defendant. Brooks, fired at this guard; and while this was
going on, another guard, George Bowman, having been informed of the
trouble, started towards the guardshack. The defendant. Brooks, using
deceased's rifle, stuck the rifle barrel through a hole in the guardshack
and shot and killed Bowman. The defendants then escaped but were later
captured and made various statements about the crime. It was the con-tention
of the defendants, Brown and Munn, that it was not within their
29] BIENNIAL REPORT OF THE ATTORNEY GENERAL 27
plan to kill Morgan and that they did not know that Brooks intended to
kill Bowman. The defendants were convicted of murder in the first degree;
and upon appeal, the Supreme Court held that where an unlawful com-bination
was entered into, each was liable for the acts of the other when
such acts are the natural or probably consequence of the unlawful com-bination
even though such were not intended or contemplated as a part
of the original design. The verdict of murder in the first degree was up-held
by the Supreme Court.
State V. Lovelace, 228 N. C. 186
The defendant was a resident of South Carolina and lived near the
North Carolina-South Carolina State line. On the day in question, he was
transporting four head of slaughter-type cattle in his truck and brought
them in from South Carolina into North Carolina; and upon being stopped,
he stated that he was taking the cattle to the Morris Livestock Market for
sale, which Market is located some little distance out of the City of Char-lotte.
The defendant, Lovelace, had no health certificate covering the cattle,
and it was shown that the Morris Livestock Market was not a recognized
slaughtering establishment. The defendant was arrested for violation of
the regulations of the State Board of Agriculture relating to Bang's
Disease. The defendant could have brought the cattle into the State under
a health certificate as required by the regulations or he could have carried
the cattle directly to a slaughtering establishment without a health certifi-cate.
The defendant challenged the constitutionality of the regulations;
and upon the jury's returning a special verdict in the Superior Court of
Mecklenburg County, the Court instructed the jury to find the defendant
not guilty, and the State appealed to the Supreme Court. The Supreme
Court held that the Bang's Disease regulations of the Department of Agri-culture
of the State were constitutional and valid and that the defendant
was guilty of not complying with the regulations. The Supreme Court of
North Carolina reversed the case and ordered the lower Court to render
a verdict of guilty on the special verdict.
State V. Warren, 227 N. C. 380
The defendant, Sam Warren, and four confederates, were indicted in
Pitt County on three counts:
(1) Conspiracy to steal ten thousand pounds of sugar, valued at $750.00,
the property of Demain Foods, Inc.;
(2) With the larceny of said sugar;
(3) With receiving the same knowing it to have been feloniously stolen.
The defendant rested his defense on the contention that he was not in
the State of North Carolina at the time of the commission of the crime
and took no part in it, and that if a conspiracy was formed to commit
said crime, it was formed in the State of Virginia and that he was not
subject to prosecution in the State of North Carolina. Chief Justice Stacy,
in writing the opinion for the court, held that there was plenary evidence
28 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
to show a conspiracy, and that it makes no difference whether it was
formed in this or some other state, and that our courts have jurisdiction
of a prosecution for conspiracy executed within the State, even though
the conspiracy was formed out of the State.
State V. Lateral and Bell, 227 N. C. 527
The evidence in this case reveals the commission of one of the most
heinous and brutal crimes ever committed in the State, and the facts are
so sordid that they will not be recited here. The defendants were indicted
for the kidnapping and raping of Peggy Ruth Shore, a young girl barely
sixteen years of age, while she was returning to her home from a church
social in the town of Elkin. The defendants had long criminal records, and
the defendant Litteral offered testimony to show that he was of such low
mentality that he was incapable of distinguishing right from wrong. One
of the important principles of law held in this case is that the relation-ship
of patient and physician within the purview of G. S. 85-53 does not
exist between a defendant and an alienist examining him, in regard to
his sanity, and that he waives any confidential relationship when he offers
testimony of an alienist in support of his plea of mental irresponsibility,
and the State may cross-examine such witness concerning all matters cov-ered
in the examination-in-chief. The defendants were convicted and sen-tenceH
to death. The case was carried to the United States Supreme Court,
where their motion for writ of certiorari was denied.
State V. Law and Kelly, 227 N. C. 103 and 228 N. C. US
The evidence in this case revealed that on April 15, 1946, Oscar Morri-son,
a police officer of the City of Winston- Salem, discovered an automobile
on one of the city streets from which a five-gallon container full of non-tax-
paid whiskey had been taken. He took possession of the automobile,
drove it to the city lot, and parked it for the night. During the night the
automobile was stolen from the city lot, and the evidence tended to show
that the car was taken by the defendants. When this case first reached the
Supreme Court, the defendants had been tried on a bill of indictment
charging them with the larceny of an automobile, of the value of $700.00,
the property of the City of Winston-Salem. The question for decision was
whether or not there was a fatal variance between the indictment and the
proof. The court held that there was, in that the bill of indictment laid
OAvnership in the City of Winston-Salem, which had no property right in it.
The conviction was set aside, and the Solicitor was allowed to send a new
bill to the Grand Jury.
The second trial revealed substantially the same evidence as the first
trial, but the bill of indictment laid title in Oscar Morrison. The defend-ants
again contended that there was fatal variance between the indict-ment
and the proof. The Supreme Court held that there was not a fatal
variance, since the car was in the possession of Oscar Morrison, the seiz-ing
officer, who was entitled to hold the automobile and to approve bond
for its return, and therefore, had a special interest therein.
29] BIENNIAL REPORT OF THE ATTORNEY GENERAL 29
State V. Anderson, 228 N. C. 720
The defendant was tried on a bill of indictment charging him with four
capital felonies, namely:
(1) The willful and malicious burning of the dwelling house of Willie
Belle Cratch;
(2) The murder of Willie Belle Cratch;
(3) The murder of Bobbie Eugene Cratch; and
(4) The murder of Jessie Cratch.
The evidence tended to show that the defendant set fire to the dwelling
house, while occupied by Willie Belle Cratch and the other deceased per-sons,
who were burned to death from said fire. The defendant rested his
defense largely on an attack on the organization of the court. The court
held that an erroneous date in the concluding paragraph of the commission
to an emergency judge to hold a term of court will not invalidate the com-mission
when it appears to be a clerical error. The court also held that
the failure of the trial judge to sign the order for Special Venire does
not alone invalidate a Special Venire when ordered and summonsed and
in all other respects in conformity with the statute. The Supreme Court
upheld the lower court in the death sentence imposed upon the defendant.
State V. Baker, 229 N. C. 73
The case of State v. Richard C. Baker involved an appeal by the defend-ant,
a licensed osteopath of Rockingham, North Carolina, from a convic-tion
under an indictment that he had practiced medicine without a license
by administering and prescribing drugs in the treatment of ailments of
patients contrary to the Medical Practice Act, G. S. 90-18. The State's
evidence indicated that the defendant used a printed professional card
designating himself as a "physician and surgeon"; that for compensation
he examined patients, diagnosed their ailments, and in the instances re-ferred
to orally recommended the use by them of various medicines either
directly to the patient or by telling them to call at the drugstore for a
bottle of medicine which he would by telephone request the druggist to
deliver to the patients. In some instances the defendant gave his patients
liver extract hypodermics and he administered one hypodermic injections of
alcohol for hemorrhoids. There was no evidence that defendant had issued
a written prescription to his patients.
Defendant offered no evidence and the court instructed the jury that if
they believed all the evidence beyond a reasonable doubt they should return
a verdict of guilty, but otherwise they should find the defendant not guilty.
The jury returned a verdict of guilty. Finding no error in the lower
court, the Supreme Court, in an opinion by Mr. Justice Irvin, held with
respect to the several contentions of the defendant, as follows:
(1) That the bill of indictment was not defective in failing to specify
occasions on which and the patients for whom the defendant prescribed
drugs
(2) That osteopathy is a system of healing without the use of medicine,
drugs or surgery.
30 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
(3) That the statutory definition of osteopathy "as a science of healing
without the use of drugs" is not enlarged by the word in the statutes
"as taught by the various colleges of osteopathy" and an osteopath is not
permitted to use or prescribe drugs for treating human ailments.
(4) That "drugs" within the meaning of the statute defiining osteopathy
is any substance used as a medicine or in the composition of medicines
for internal or external use irrespective of whether it contains poisonous
ingredients or is purchaseable without a physician's prescription, and the
definition includes patent and proprietary remedies and hypodermic in-jections.
(5) The giving of any directions oral or written to a patient for the use
or application of drugs for the cure of any body disease is "prescribing"
drugs.
(6) That while the accused cannot be convicted for doing as an osteo-path
what he might have a legal right to do as a private citizen in sug-gesting
to friends the advisability of taking some medicine, the evidence
tends to show that the accused "held himself out as an expert in medical
affairs and in determining the proper remedies for ailments diagnosed by
himself on the examining of his patients," and gave oral directions for the
use of medicine for compensation, which constituted the practice of medi-cine,
rather than osteopathy.
The Attorney General wishes to acknowledge with thanks the able assist-ance
of the firm of Smith, Leach and Anderson, Attorneys of Raleigh,
North Carolina, who, as counsel for the State Board of Medical Examiners,
assisted this office in the case.
Other Criminal Cases
During the biennium, this office has prepared briefs in and argued an
unprecedented number of criminal appeals as will be seen from the sta-tistical
data which appears earlier in this report.
More than 150 cases involving more than 200 defendants were disposed
of. The crimes include such major offenses as abortion, assault with intent
to commit rape, bigamy, burglary, breaking and entering, carnal knowledge,
embezzlement, highway robbery, larceny and receiving, murder in the first
and second degree, manslaughter, and perjury. Also included are com-paratively
minor offenses such as assaults of all kinds, disorderly conduct,
false pretenses, gambling, and violations of the Motor Vehicle and Prohi-bition
Laws. These appeals also include one each on charges of circulating
derogatory remarks about a political candidate, illegal practice of medicine,
and stream pollution.
Attention is invited to the list of cases appearing in a preceding portion
of this report. Space does not permit the giving of complete details of all
of the cases, information as to which is available in the North Carolina
Reports.
Civil Cases of Special Interest
State of North Carolina v. Atlantic Coast Line Railroad Company, et al
During the period from August 1, 1944, to July 25, 1945, inclusive, the
Atlantic Coast Line Railroad Company, Seaboard Air Line Railway Com-
291
' BIENNIAL REPORT OF THE ATTORNEY GENERAL 31
pany and the Southern Railway Company collected intrastate passenger
coach fares at 2.2 cents per mile. At this time the rate fixed by the North
Carolina Utilities Commission was 1.65 cents per mile. The railroads were
collecting these overcharges based upon authority of an order of the Inter-state
Commerce Commission. A suit was instituted to test the validity
of the order of the Interstate Commerce Commission, which was appealed
by the State from an adverse decision by a three-judge Federal Court to
the Supreme Court of the United States. The Supreme Court of the United
States reversed the action of the three-judge court and held that the order
of the Interstate Commerce Commission was unauthorized and beyond the
jurisdiction of that commission, as no facts had been found justifying the
order.
North Carolina v. United States, 325 U. S. 507
Based upon estimates furnished by the railroad companies at the hear-ings
before the Interstate Commerce Commission, the excess fares collected
by the three railroad companies during this period were as follows:
Southern Railway Company—$381,564.00.
Seaboard Air Line Railway Company—$76,548.
Atlantic Coast Line Railroad Company—$93,084.00.
These estimates were based upon the fares collected for the preceding-year
but, due to decreased intrastate passenger traffic during the period
from August 1, 1944, to July 25, 1945, as compared with the preceding
year, the estimates were in excess of the amounts probably collected. No
accurate record was available.
This department, with the assistance of Honorable J. C. B. Ehringhaus,
who appeared as counsel in the case that went to the Supreme Court of
the United States, instituted proceedings before the North Carolina Utili-ties
Commission to procure an order requiring the carriers to refund to
the persons from whom the excess fares were collected the amount of such
excess, and to enforce the statute, G. S. 116-25, which provides that if the
overcharges were not claimed by the persons entitled thereto within a
period of two years from the time they were due or the refund ordei'ed,
they should be paid to the University of North Carolina as an escheat.
An order was made by the commission requiring the railroads to make
such refunds, from which the railroads appealed to the Superior Court of
Wake County. After presenting the matter fully to the Board of Trustees
of the University, an agreed settlement of the matter was made by which
the carriers are to pay the following amounts to the University of North
Carolina:
Southern Railway Company~$190,782.00.
Seaboard Air Line Railway Company—$38,274.00.
Atlantic Coast Line Railroad Company—$46,542.00.
The agreement will provide that if the carriers are required to refund
any of the amounts collected to the passengers paying the same, such
amounts will be repaid by the University of North Carolina. As all pas-senger
claims are now barred by the statute of limitations, it is not likely
that any claims will be presented, most of which would be for fractions of
a dollar.
32 BIENNIAL REPORT OF THE ATTORNEY GENERAL ' [VoL,
Honorable J. C. B. Ehringhaus served as counsel in this matter with-out
making any charge for his services and, thus, the funds will be paid
over to the University without any expense for legal services.
Garrou Knitting Mills v. Edwin Gill, Commissioner of Revenue,
228 N. C. 76U
This was a suit to recover income taxes paid under protest. Prior to
March 15, 1941, plaintiff filed an income tax return for the calendar year
1940. More than three years later the Federal Bureau of Internal Reve-nue
made a correction of income and assessed an additional tax against
the plaintiff on the ground that the plaintiff had taken excessive deprecia-tion.
Plaintiff made no report to the State Department of Revenue of this
Federal correction of income as required by G. S. 105-159. Thereafter the
Commissioner of Revenue upon receipt of a report by the Federal Depart-ment
of the change in taxpayer's return assessed additional tax against
the plaintiff for the year 1940. The plaintiff paid the assessments under
protest and brought suit to recover, contending that the Commissioner's
power to make the assessment was barred within three years after the
filing of the original return by G. S. 105-160. The defendant demurred to
the complaint and the demurrer was heard at the September-October term
of Burke Superior Court, Judge Gwyn presiding, when and where the de-murrer
was overruled and the defendant appealed to the Supreme Court.
The Supreme Court reversed the lower court and held that the demurrer
should have been sustained and non-suit should have been entered. The
court held that the three-year pei-iod of limitation for making additional
assessments under G. S. 105-160 was not strictly a statute of limitations but
only applies to the administrative procedure by which taxes are assessed.
The court further held that when a Federal correction of income has been
made, even though made after the expiration of three years from the filing of
the original return, an additional assessment may be made by the Commis-sioner
of Revenue under the provisions of G. S. 105-159, which deals with
the incident of a Federal correction as an independent situation separable
in fact, as well as administrative procedure, which requires a new return
under oath under all of the sanctions provided for with respect to the
original return.
In re Wright, 228 N. C. 301, Rehearing 228 N. C. 58
A
In April, 1947, the Department of Motor Vehicles received from the
South Carolina Highway Department a notice that Wilbur Anderson
Wright of Tabor City, North Carolina, had been convicted in South Caro-lina
of drunken driving. Acting on this notice the Department of Motor
Vehicles revoked Wright's motor vehicle operator's license in this state.
Wright instituted an action in the Superior Court of Columbus County to
compel the Department of Motor Vehicles to return his driver's license to
him, averring that he was not convicted of drunken driving in South Caro-lina
but only forfeited bail in that case. The Superior Court Judge found
that Wright was not guilty of drunken driving and ordered Wright's license
restored. The Supreme Court affirmed this judgment. The Department of
Motor Vehicles petitioned for a rehearing and the petition was allowed.
29] BIENNIAL REPORT OF THE ATTORNEY GENERAL 33
The former opinion was affirmed on the rehearing: by an opinion stating
that in such a case the motor vehicle operator is entitled to a trial de novo
in this state on the question of his guilt or innocence of the offense for
which he stands convicted or has forfeited bail in the courts of a sister
state. The effect of these decisions is to make difficult the enforcement of
certain portions of the Uniform Driver's License Act. Clarifying legisla-tion
is recommended.
General Motora Corporation v. Edwin Gill, Commissioner of Revenue
(2 Cases)
Plaintiff, a manufacturer of automobiles, who was not doing business
in this state, paid under protest certain license taxes to the Department
of Revenue. Plaintiff paid these license taxes so that dealers in this state
handling its automobiles would not be required to pay the license taxes.
In 1926 plaintiff instituted one action to recover these taxes alleging that
as applied to it the section levying the tax was unconstitutional. A similar
action was instituted in 1927. These cases came on for trial in the fall of
1947 and the defendant at that time interposed demurrers to the com-plaints.
The demurrers were sustained and the actions were dismissed.
The plaintiff gave notice of appeal to the Supreme Court of North Caro-lina.
Before the appeal was perfected plaintiff accepted a refund of $2,-
500.00 in full settlement of all differences between the parties. This repre-sented
less than one-eighth of the interest on the original claim, and about
5 per centum of the total amount involved.
Gill V. Louis Singer and Muriel Singer, T/A Singers' Jewelers
The defendants were non-residents of North Carolina and were operat-ing
a jewelry store in the City of Burlington. For some time the defend-ants
had failed to file their sales tax returns and the Deputy Collector
had been unable to obtain a return or payment of any tax. Upon receipt
of information that the defendants were depleting their stock and were
removing various items of merchandise from the State of North Carolina,
suit was instituted against the defendants for an estimated tax in the
amount of $780.00 plus penalty and interest, the estimated tax due being
based upon "best information available." Simultaneously with the insti-tution
of suit the plaintiff caused a warrant of attachment to issue against
the defendants and all of the stock of merchandise and fixtures still re-maining
in the defendants' place of business were seized by the Sheriff of
Alamance County under the warrant of attachment. Subsequently, a Dep-uty
Collector of the Bureau of Internal Revenue appeared with a warrant
for distraint against the property of the defendants for the non-payment
of federal taxes. Said Federal Deputy Collector advised that the Federal
Government had also seized property of the defendants located in Vir-ginia
and desired to sell all of the property including that property located
in North Carolina and previously levied upon by the Sheriff of Alamance
County under the warrant of attachment. The plaintiff thereupon agreed
to release to the Federal Deputy Collector the property seized under its
court further held that when a Fedei-al correction of income has been made,
warrant of attachment upon the understanding that the Deputy Collector
S4 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
would hold the proceeds of the sale until plaintiff's claim could be estab-lished
by a judgment and to apply the first proceeds of the sale toward the
satisfaction of the state claim for taxes. Thereafter the defendants were
adjudicated bankrupt by a Federal District Court in Virginia, an ancillary
receiver was appointed in North Carolina and Judge Don Gilliam, sitting
in the Federal District Court for the Middle District of North Carolina,
signed an order which, among other things, restrained the Federal Deputy
Collector from disposing of the merchandise and fixtures held by him by
virtue of his warrant for distraint. This order was subsequently set aside
by Federal Judge Johnson J. Hayes. The Federal Deputy Collector there-upon
sold the property of the defendants and paid to the State of North
Carolina from the proceeds of sale the sum of $780.00 in satisfaction of
the state's tax claim.
Judgment was taken against the defendants by default and the case
was closed.
Nesbitt V. Gill, 227 N. C. 17h, Affinned 92 L. Ed. 13
The plaintiff paid under protest a tax levied under Section 115 of the
Revenue Act, G. S. 105-47, upon horse and mule dealers and brought
suit to recover the tax paid. The plaintiff contended that the tax was un-constitutional
in that: (1) The purchase of horses and/ or mules for resale
is not a trade or profession within the meaning of Article V, Section 3 of
the State Constitution; (2) The levy of a head tax of $3.00 upon horses
and/or mules purchased for the purpose of resale is a tax on property and
is unconstitutional as violative of Article V, Section 3 of the Constitution;
(3) The act does not levy a head tax on horses and/or mules raised in
North Carolina and is, therefore, in contravention of Article I, Section 8,
Clauses 1 and 3 of the Constitution of the United States, and; (4) The
head tax levied under the act imposes an undue burden on interstate
commerce.
The Superior Court of Buncombe County rendered judgment for the
state. The Supreme Court, upon affirming judgment of the lower court,
held: (1) The per head tax on horses and mules required to be paid by
dealers purchasing such animals for resale is not a privilege tax for the
right to purchase horses and mules nor an ad valarem tax on the animals
purchased but is merely the method prescribed by statute for the determi-nation
of the amount of license tax to be paid by those engaging in the
business. (2) The license tax imposed by the act on dealers purchasing
horses and mules for resale applies regardless of whether the animals are
raised in this state or are shipped into the state, therefore the tax is a
levy on a local business and does not place a burden upon interstate
commerce.
The judgment of the Supreme Court of North Carolina was affirmed by
the Supreme Court of the United States in a percuriam decision October
13, 1947. L. Ed. 13.
Re Suspension of Driver's License of L. G. Squires
L. G. Squires, a resident of Alamance County, was convicted in the
Alamance County Court of operating an automobile under the influence of
^y] BIENNIAL REPORT OF THE ATTORNEY GENERAL 35
intoxicating liquor. He appealed to Superior Court of Alamance County.
Apprehending that his driver's license might be suspended pending appeal,
Squires filed in the Superior Court of Alamance County a petition asking
that the Commissioner of Motor Vehicles be ordered to show cause why he
should not be restrained from revoking or suspending petitioner's opera-tor's
license pending appeal. This order to show cause was later dismissed
for the reason that no summons had been issued and no action was pend-ing
in which an injunction or restraining order could be issued, the Com-missioner
having appeared specially for the purpose of moving for dismis-sal.
Squires thereupon instituted a civil action in which the same relief
was prayed. Thereafter and before the termination of the civil action
Squires appealed from an order suspending his driver's license, which order
was entered by the Commissioner upon official notification of Squires' con-viction
in the county court. The petition in appeal asserted that Squires
was not in fact guilty of operating his automobile under the influence of
intoxicating liquor and also that G. S. 20-16, under which the Commis-sioner
suspended Squires' license pending his appeal from the county court
conviction, was in contravention of a number of provisions of both the
State and Federal Constitutions. This appeal was heard before his Honor
Leo Carr, resident judge of the tenth Judicial District, on May 8, 1948,
when testimony was presented by Squires and by the state. Briefs dealing
with the constitutional questions were submitted by counsel for both sides
and after holding the matter under advisement Judge Carr signed a judg-ment
dismissing the appeal.
Walter Miles, et al v. State Board of Educatimc
On the 22nd day of February, 1946, W. M. Miles, at about 7:00 o'clock
in the morning, was killed and robbed by one John Henry Gaston, who is
now serving a prison sentence for this murder. The statement of Gaston
indicates that the deceased was known to carry large sums of money around
with him. According to Gaston, he and a friend of his, known only as
"Baby Boy," discussed and planned to rob the deceased on the night before
he was killed. Gaston's story, from his confession, is that he arose early
on the morning of the 22nd of Februai-y to carry out the plan with his
friend; but upon arriving at the scene of the killing, he found the deceased
dead and his money gone.
The deceased was a janitor and worked full time in such capacity for the
State Board of Education at the Moore School on North Regan Street in
Greensboro, North Carolina, at the time of his death. The deceased had
apparently come to work early on the morning of the 22nd of February
to fire the furnace in preparation for the school day; and while he was
apparently firing the furnace, he was knocked in the head with a hammer
and died shortly thereafter without regaining consciousness.
Under the above state of facts, the next of kin of the deceased instituted
an action before the Industrial Commission on the theory that the deceased
came to his death as the result of an accident arising out of and in the
course of his employment. The State Board of Education denied liability
on the ground that, even though the accident occurred during the course
of, It did not arise out of his employment, because there was no causal
36 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL. 29]
relation between the accident and the employment. This position was sus-tained
before the Trial Commissioner and was affirmed upon the claimant's
appeal to the full Commission. The claimant did not appeal his case to
the Court.
University of North Carolina v. Unknown Heirs of Donald M. Steffee
Action filed by University of North Carolina in September, 1947, in
Superior Court, Moore County, to recover for the University of North
Carolina, as an escheat, a house and lot in Pinebluff, Moore County, North
Carolina. Judgment secured and property sold by the University of North
Carolina for $1,575.00 and money put in escheats fund.
University of North Carolina v. E. O. Guerranf, Trustee of the American
Island Mission, or Any Successors, and J. I. Hickman
Action filed by University of Noi'th Carolina in February, 1948, in
Superior Court, Caldwell County, to recover for the University of North
Carolina, as an escheat, a certain tract of land containing about 50 acres
in Caldwell County. Judgment secured and recovered for University of
North Carolina $1,350.00 from sale of property.
University of Noj'th Carolina v. Unknown Heirs of Joseph Futch
Action filed by University of North Carolina in February, 1948, in Su-perior
Court, New Hanover County, to recover for University of North
Carolina a tract of land of about five acres divided in lots. Judgment
secured and lots recovered for University of North Carolina.
University of North Carolina v. Raymond Marshall
The administrator of the Estate of Julia Scott, deceased, filed in the
Superior Court of Onslow County for the purpose of recovering, as an
escheat for the University, an estate of approximately $75,000.00 of real
and personal property. Judgment was obtained for the University in
April, 1946, before Resident Judge Henry L. Stevens, declaring all of said
estate, after payment of all debts, costs of administration, taxes, etc., to be
an escheat, and on July 9, 1946, there was recovered for the University,
as an escheat, the net sum of $75,995.81.
OPINIONS TO GOVERNOR'S OFFICE
Notaries Public; Eligibility for Appointment; Appointment Made to
County of Residence; Powers May Be Exercised in Any County
19 August 1946
Reference is made to the letter of Messrs. Covington and Lobdell, Attor-neys
at Law of Charlotte, North Carolina. In this letter it is stated that
on August 1 a commission as notary public was issued to Miss Colleen E.
Widenhouse for Cabarrus County. Cabarrus County appeared on Miss
Widenhouse's application form as the county of her residence.
Miss Widenhouse is a stenographer of the law firm of Covington and
Lobdell, and she has requested that she receive a commission as notary
public for Mecklenburg County. It is stated that the perfoi-mance of her
duties as notary public will be exercised practically 100 per cent in Meck-lenburg
County, and her employers feel that it will be more satisfactory
if her commission could be issued from Mecklenburg County so that any
one interested could verify her commission by the records in the office of
the Clerk of the Superior Court of Mecklenburg County. Messrs. Coving-ton
and Lobdell request that the commission be changed to read Mecklen-burg
County instead of Cabarrus County.
You inquire of this office as to what county this commission should
be issued.
On September 10, 1943, this office ruled that the office of a notary public
is a public office within the meaning of Article XIV, Section 7 of the
State Constitution. Since this position is a public office, the eligibility
requirements as to residence are the same as those required for any other
public office; and the constitutional requirements as to residence are the
same for the office of notary public and are set forth by reference to
the articles and sections in the ruling of September 10, 1943, copy of which
is enclosed.
We are of the opinion, therefore, that all commissions to notaries public
issued by your office should be issued for the county of which the applicant
is a resident. It is the residence of the applicant in this county which
originally gives the applicant the right to request such an appointment,
and it is the county of residence of the applicant which gives validity to
the appointment. The issuance of a commission as a notary public to
Miss Widenhouse for Cabarrus County will in nowise affect the legality
of her acts as a notary public in Mecklenburg County because it is pro-vided
by Section 10-6 of the General Statutes that notaries public have
full power to perform the function of their office in any and all counties
of the State. For the purpose of verifying her appointment as a notary
public, I think that Miss Widenhouse could get a certified copy of her
record of qualification in Cabarrus County and have the same recorded
in the office of the Clerk of the Superior Court of Mecklenburg County.
38 biennial report of the attorney general [vol.
Boards and Commissions Appointed by the Governor;
Fees; Notary Public
9 July 1947
Sometime ago you orally requested an opinion from this office as to
whether or not a fee of $2.50 should be charged by you for the issuance
of certain commissions to various public officials and members of boards
and commissions in the State.
G. S. 147-15 is, in part, as follows:
"The secretary shall charge and collect the following fees, to be paid
by the person for whom the services are rendered, namely: For the
commission of a judge, solicitor, senator in Congress, representative in
Congress, notary public, or a place of profit, $2.50 each; . . ."
In view of the language of this statute, it is the opinion of this office
that the fee, in the amount of $2.50, for the issuance of a commission
applies only to the offices specifically named therein and to those offices
which are actually "places of profit." It is not thought that the statute
would apply to those boards and commissions whose only remXineration
for their services is a per diem allowance fixed by the statute for attending
periodic meetings of such board or commission. It would apply, however,
it is thought, to membership on boards which actually provide for a salary
of the members. An example of this would be membership on the Board
of Barber Examiners created by Chapter 86 of the General Statutes. G. S.
86-8 provides that each member of the Board shall receive an annual salary
of $3,600.00.
In examining G. S. 147-15, some question arose here in the office as to the
authority of the collection of the fee of $5.00 by your office for the issuance
of notaries public commissions. You are advised that the additional $2.50
is authorized to be levied by you under G. S. 105-101 which is a section of
the Revenue Act which authorizes a tax upon the affixation of seals.
Compacts With Other States; Right of Governor to Sign Subject to
Legislative Approval
14 February 1948
I received your letter of February 13 enclosing to me a photostatic copy
and a typewritten copy of the proposed Regional School Agreement, as
executed by nine of the Southern Governors on February 8, 1948.
You request me to examine the proposed agreement and advise you
whether there is any legal or constitutional impediment which would
prevent you, as Governor of North Carolina, from signing the same. You
also request me to make any other pertinent comment which I may care
to make about the agreement or the general principle intended to be carried
^ut by the same.
29] BIENNIAL REPORT OF THE ATTORNEY GENERAL 39
The proposed contract provides that it shall not take effect or be binding
upon any State unless and until "it shall be approved by proper legislative
action of as many as six or more of the States whose governors have sub-scribed
hereto within a period of eighteen months from the date hereof.
When and if six or more States shall have given legislative approval to
this compact within said eighteen months period, it shall be and become
binding upon such six or more States . .
."
This is substantially the same provision as contained in the former draft
of this proposed compact, which you submitted to me in your letter of
February 3. In my opinion, the signing of this compact would have no
binding force on North Carolina unless and until it is authorized and rati-fied
by the General Assembly of the State. As your signature to the
compact would be entirely subject to legislative approval and would amount
to no more than a recommendation to the Legislature, I see no legal reason
why you could not, if you saw fit, sign the tentative compact.
We have no law in this State which would authorize you to sign any
contract which would in any way bind the State of North Carolina to
carry out the purposes of the compact or agreement, but you do not pur-port
to bind the State by signing this agreement and the approval of the
General Assembly is provided for before it shall become obligatory.
In my letter of February 4 I referred to the provision of Article I, Sec-tion
10(3), of the Federal Constitution, which provides as follows:
"No state shall, without the consent of Congress, lay any duty of
tonnage, keep troops, or ships of war in time of peace, enter into any
agreement or compact with another state, or with a foreign power,
or engage in war, unless actually invaded, or in such imminent danger
as will not admit of delay."
In my letter I also referred to the case of VIRGINIA v. TENNESSEE,
148 U S 503, in which this clause had been construed and m which the
Court indicated that a compact of this kind would not have to be approved
by the Congress as it does not involve in any way the interference with
political power and supremacy within its constitutional field of the Federal
Government.
It might, however, be desirable to submit the compact to Congress for
its approval. If this approval is obtained, I am of the opinion that it would
have some influence upon a court which might later be called upon to
determine any question which might be involved in the establishment of
regional schools between the several States.
As stated in my letter of February 4, I believe it would be impossible
to forecast the conclusion which might be reached by the Supreme Court
of the United States as to the effect of such a regional school upon the
constitutional rights of citizens to equal opportunity of higher education.
So far as I am advised, there has been no similar compact made and no
similar facility set up by any of the several States.
As requested, I am returning the photostatic copy of the compact
herewith.
40 biennial report of the attorney general [vol.
State Departments; Authority of Governor To Appoint and
Commission Special Police; Merchants Patrol
20 April 1948
Reference is made to the memorandum of Mrs. Alma Corbitt, Executive
Clerk, dated April 16th, 1948; and reference is also made to letters of
James S. Howell, dates April 1st, 1948, and April 13th, 1948.
In his first letter, Mr. How^ell states that he is interested in procuring
a commission as special police for Mr. C. A. Anderson. Mr. Anderson
desires to institute a watchman's service similar to the merchant patrol
operated by Mr. W. R. Stroupe of Charlotte, North Carolina. It is stated
that Mr. Anderson has been on the Asheville police force for nine years,
is an ex-serviceman, and a capable officer. It is also stated that Mr. Stroupe
has shown Mr. Anderson a commission issued by the Governor, which I
assume undertakes to commission Mr. Stroupe as a special officer or police
under Chapter 60 of the General Statutes. In his letter of April 13th,
1948, Mr. Howell goes into further detail and states that Mr. Anderson
expects to organize a set-up similar to that of Charlotte concerning patrol,
checking of business buildings and furnishing watchmen for residential
sections. It is stated that the men under Mr. Anderson would be in uniform
and would have to be sworn in as special police or special deputies.
You inquire of this office if it would be proper and lawful to appoint
this person for the type of service he contemplates.
The only authority that we know anything about which authorizes the
Governor to appoint and commission these special policemen is contained
in Section 60-83 of the General Statutes, which is as follows:
"Any corporation operating a railroad on which steam ar electricity is
iised as the motive power or any electric ar water-power company or
construction company or manufacturing company or motor vehicle carrier
may apply to the governor to commission such persons as the corporation
or company may designate to act as policemen for it. The governor upon
such application may appoint such persons or so many of them as he may
deem proper to be such policemen, and shall issue to the persons so
appointed a commission to act as such policemen. Nothing contained in
the provisions of this section shall have the eifect to relieve any such
company from any civil liability now existing by statute or under the
common law for the act or acts of such policemen, in exercising or attempt-ing
to exercise the powers conferred by this section."
The above quoted Section was amended by Chapter 390 of the Session
Laws of 1947, by inserting Railway Express Agencies among the list of
companies . or corporations for which the Governor may appoint special
policemen and issue commissions for same.
In looking over the list of companies or corporations described and
named in the statute for which the Governor may appoint special police-men,
I am unable to see how the appointment of a merchant patrol or a
special policeman to operate as a merchant patrol falls within the powers
of this Section. The fact remains that a merchant, if he is operating in a
corporate capacity, does not fall within the type of business described
in this Section; and so far, the General Assembly has not seen fit to
authorize the Governor to appoint officers to carry out this special type of
29] BIENNIAL REPORT OF THE ATTORNEY GENERAL 41
service. The statute likewise contemplates the appointment of a special
policeman for one concern or company in such cases where it is authorized
at all. It does not contemplate the appointment of a special policeman for
a group of individuals or concerns.
We are of the opinion that the Governor of North Carolina does not
have the authority to commission and appoint a special policeman or group
of such policemen for the service contemplated and described in Mr.
Howell's letters. If the matter is handled at all, it seems to us that it would
have to be handled by having the county to appoint these men as deputy
sheriffs or by having the city or town concerned, if such city or town
has the necessary legal authority, to appoint these men special policemen.
We do not think that these men can be commissioned or appointed by the
Governor whose authority is limited to the corporations specifically named
and described in the above quoted Section.
OPINIONS TO SECRETARY OF STATE
Grants; O'Neal and Fiilcher Entries Nos. 752, 753
5 September 1946
I received your letter of September 3 with reference to the above entries
and the protest of the Department of Conservation and Development and
the withdrawal of same as to the two small tracts of land within the
inside area of Ocracoke settlement.
You request my opinion as to whether or not you are prevented from
making the grant because of the provisions of G. S. 146-27, which requires
that all entries on land shall in any event be paid for within one year
from the date of entry unless a protest be filed to the entry, in which
event they shall be paid for within twelve months after the final judgment
on the protest.
It is my understanding that the protest to the grant is made by the
Department of Conservation and Development under the provisions of
G. S. 146-50, which provides that the Secretary of State shall withhold a
grant to any and all vacant and unappropriated lands lying within or
immediately adjacent to the boundaries of any and all national forest
purchase areas, also to lands within or near State forest parks and such
other areas as the Department of Conservation and Development may
request to be withheld for dedication to public use, as State forests, State
parks, game refuges and other recreational areas.
This, while not a protest in the exact sense used in G. S. 146-26, is in
substance an objection to the issuance of a grant authorized by statute
and, in my opinion, the provisions of G. S. 146-27 would permit the grant
to be issued after this protest is withdrawn, although the grant was made
more than one year prior to that time, and that the time the matter was
held up while the protest was pending would not be counted.
Corporations; Foreign corporations; Right to do business in this
State; Power to purchase real property
5 December 1946
I am in receipt of the letter from the Commercial Counselor of the
Chinese Embassy, dated November 20, 1946, forwarded to me for reply.
This letter asks if corporations properly organized under the laws of
the National Government of China are entitled to do business and establish
offices or branches within the State of North Carolina.
I refer you to Sections 55-117 through 55-120 of the General Statutes of
North Carolina. These statutes enumerate the powers of a foreign corpora-tion
doing business in North Carolina and give the requisites for permission
to do business in this State. See, also, BARCELLO v. HAPGOOD, 118-712,
24 S. E. 124.
This letter also inquires if foreign corporations permitted to do business
in this State are entitled to purchase real property for carrying out their
business here.
[Vol. 29] biennial report of the attorney general 43
This power is specifically granted in Section 55-117 of the General
Statutes of North Carolina. There are no limitations, in my opinion, regard-ing
the size and location of such holdings.
I am enclosing a copy of this opinion for forwarding to the Chinese
Embassy at Washington. I return the letter from the Commercial
Counselor.
Trade-Marks; Effect of Lanham Trade-Mark Bill on Existing
Legislation Relative to Trade-Marks
22 February 1947
I have your letter of February 14, 1947, in which you ask my advice with
reference to the questions contained in a letter, which is enclosed herewith,
addressed to you from Trade-Mai'k Service Corporation, concerning the
effect of the Lanham Trade-Mark Bill on existing North Carolina statutes
relative to trade-marks.
The Lanham Trade-Mark Bill was enacted by Congress on July 5, 1946,
and becomes effective July 5, 1947. This Act was passed pursuant to the
powers of Congress to regulate inter-state commerce and provides only
for the registration of trade-marks used in such commerce.
In most instances, it is to be expected that after this Act becomes
effective, trade-marks will be registered under the Federal Act, but I see
no reason to abandon the practice of registering trade-marks in this State
under our law, since it is still in effect. Further, it is conceivable that a
person might desire to use a trade-mark exclusively within this State. In
that case, the provisions of the Federal Act would not be available since
it applies only to interstate commerce, and the only law under which the
trade-marks might be registered would be the North Carolina law.
I am enclosing a memorandum which contains excerpts from the Federal
Trade-Mark Act and a statement of the purpose of this law, disclosed by
the Senate committee report.
Foreign Cooperative Associations; Domestication
23 June 1947
It appears that you have received from Mr. F. L. Fuller, Jr., Attorney
at Law, Durham, North Carolina, application, together with customary
papers, for the domestication in this State of Challenge Cream & Butter
Association, a non-profit, cooperative marketing association, organized
without capital stock under the laws of the State of California. You have
requested me to advise you of my opinion with respect to the question
whether or not this corporation may be permitted to domesticate and do
business in this State, and, if so, what fees and taxes it would be required
to pay.
It seems clear that no corporation, domestic or foreign, may use either
the word "mutual" or the word "cooperative" in its name unless it be a
domestic corporation organized under the provisions of subchapter IV
(mutual associations) or subchapter V (cooperative marketing associa-
44 BIENNIAL REPORT OP THE ATTORNEY GENERAL [VOL.
tions) of Chapter 54 of the General Statutes. G. S. 54-112 and G. S. 54-139.
But a domestic corporation organized under previously existing laws may
adopt the provisions of subchapter V and become a marketing cooperative
thereunder. G. S, 54-140. It will be observed that the foreign corporation
now applying for domestication has neither the word "mutual" nor the
word "cooperative" in its corporate name. Therefore, it is my opinion that
G. S. 54-112 and G. S. 54-39 are not applicable to the present facts.
Every corporation organized under Chapter 55 of the General Statutes
must end its name with "company," "corporation," "incorporated" or
"inc." G. S. 55-2. However, it is my opinion that this statute is applicable
only to domestic corporations created under our laws and does not impose
such a requirement upon the foreign corporation in question.
' G. S. 55-118 provides, in substance, that every foreign corporation before
being permitted to do business in this State shall file with the Secretary
of State a copy of its charter and a statement of the amount of its capital
stock authorized and issued, the principal office in this State, the name of
the agent in charge, the character of the business, and the name and
addresses of officers and directors. This statute further provides:
"And such corporation shall pay to the secretary of state, for the
use of the state, forty cents for every one thousand dollars of the total
amount of the capital stock authorized to be issued by such corporation,
but in no case less than forty dollars nor more than five hundred
dollars ; and also a filing fee of five dollars. Provided that the tax upon
shares of stock without nominal or par value shall be the same as if
each share of stock had a par or face value of one hundred dollars."
This statute further provides:
"Every corporation failing to comply with the provisions of this
section shall forfeit to the state five hundred dollars, to be recovered,
with costs, in an action to be prosecuted by the attorney-general, who
shall prosecute such actions whenever it appears that this section has
been violated."
There is a further provision validating domestication of foreign corpora-tions
without nominal or par value shares of stock and taxing the same
as provided in the statute as though the stock had a par value of one
hundred dollars ($100.00).
There is nothing in the statute which provides any basis of taxation
for the admission of a foreign corporation which does not have any capital
stock. The minimum of forty dollars ($40.00 and maximum of five hundred
dollars ($500.00) refer to maximums and minimums of foreign corpora-tions
that have capital stock, and neither the maximum or minimum could
be said to apply to a foreign corporation which has no capital stock.
The authorities support the view that a corporation created by one state
or by a foreign government can exercise none of the functions or privileges
conferred by its charter in any other state or country, except by the comity
and consent of the latter, and subject to constitutional limitations, a state
has the right entirely to prohibit foreign corporations from doing business
within the state. LUNCEFORD v. COMMERCIAL TRAVELERS, 190
,N. C. 314; C. J. S., p. 30.
29] BIENNIAL REPORT OF THE ATTORNEY GENERAL 45
A state may require a foreign corporation, as a condition of being
allowed to do or continue business within the state, to comply with the
state law as to capital stock requirements. See 20 C. J. S., p. 40.
To provide for the domestication of foreign cooperatives having no
capital stock would require some adjustment of our taxing laws as well
as the admission of such corporation in the State.
The franchise tax imposed by the state is based upon the capital stock,
surplus and undivided profits of the corporation. G. S. 105-122. Manifestly,
if the corporaton has no capital stock, it would entirely escape franchise
taxes based upon the amount of its capitalization.
A cooperative would present problems for which no answer can be found
as to taxation for income tax purposes as our income tax law does not
deal with the subject except to provide an exemption from income taxation
of those domestice cooperatives organized under the North Carolina law.
G. S. 105-138; G. S. 54-143.
As G. S. 55-118 provides a penalty of five hundred dollars ($500.00)
for every corporation failing to comply with that section, and as it would
be impossible for a foreign cooperative without capital stock to comply
with it, it would seem that the State has made no provision for the
admitting of such foreign non-stock cooperatives. It is my opinion, there-fore,
that you should decline to permit the domestication of the Challenge
Cream & Butter Association for reasons hereinbefore stated.
Blue Sky Law; Stock of Domestic Airline is Exempt
13 January 1948
You inquire as to whether or not the securities of the Piedmont Aviation
Company, Inc., a domestic corporation, is subject to supervision imposed
by Chapter 78 of the General Statutes of North Carolina and commonly
known as the "Blue Sky Law."
I understand that the Piedmont Aviation Company, Inc., is a domestic
corporation vnth its principal office and place of business in the City of
Winston-Salem, North Carolina, and is engaged in the transportation of
passengers, mail, and light freight by its airlines between fixed termini
along definite routes both in the State of North Carolina and other states.
I am also advised that this corporation has obtained from the C.A.B. a
certificate of "convenience and necessity" as provided by Section 481, Title
49 of the U.S.C.A. and that the rates for transporting passengers, mail,
and light freight is subject to regulation of the C.A.B. as provided in
Section 642 (b) U.S.C.A.
G. S. 78-3 (d) exempts from the Security Law the securities "issued or
guaranteed as to principal, interest or dividend, by a corporation domes-tic,
or foreign, owning or operating a railroad, or any other public service
utility; provided that such corporation is subject to regulation or super-vision
either as to its rates and charges or as to the issue of its own securi-ties
by a public commission, board or officer, or by any governmental, legis-lative
or regulatory body of this State, or of the United States, or any state,
territory, or insular possession thereof, or of the District of Columbia, or
of the Dominion of Canada, or any province thereof;"
46 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
It will be observed that the securities of any public service utility whose
rates are subject to regulation or supervision by a public board or any
governmental regulatory body of this State or of the United States is
exempt even though the issuance of its securities is not regulated. Thus,
the only question left is whether or not the Piedmont Aviation Company,
Inc., is a public service utility, and as to this, there seems to be little doubt
but what it is a public service utility since it is engaged in the trans-portation
of passengers, mail and light freight over a fixed route of both
in this and other states.
I am, therefore, of the opinion that the securities of the Piedmont Avia-tion
Company, Inc., a North Carolina corporation, whose stock and securi-ties
are subject to regulation by the C. A. B., a federal regulator board,
are exempt from the regulatory provisions of Chapter 78 of the General
Statutes.
Corporations; Foreign Corporations; Doing Business
- 17 Februaiy 1948
You have referred to me a letter from the Legal Department of Perfec-tion
Stove Company, Cleveland, Ohio, and requested my opinion on a
question propounded therein. Their question is as follows:
"The Perfection Stove Company, an Ohio corporation, has traveling
salesmen who solicit business from dealers in North Carolina and ad-joining
states. These dealers will resell to purchasers on a retail level.
Orders are sent to a district office in Atlanta, Georgia, for approval.
Regularly once or twice a week a carload of merchandise—household
appliances—is shipped f.o.b. Charlotte from the factory located in
Cleveland, Ohio, to a public warehouse in Charlotte. On the straight
bill of lading the Perfection Stove Company is named as the consignee.
At the time of shipment the district office is notified thereof and the
quantities of each product shipped. The district office then issues ship-ping
instructions to the warehouseman for those particular products.
The instructions arrive before the goods. When the goods do arrive,
the public warehouseman, as quickly as possible, stencils the crates for
the particular dealer named in the shipping instructions, makes out
bills of lading with the dealers named as consignees, and then imme-diately
ships these goods by common cax*rier. After shipment the ware-houseman
sends all papers to the district office and it bills the dealers."
I note from the letter from the Stove Company that no question is pre-sented
concerning the payment of North Carolina franchise tax since the
Company has been paying this tax and will continue to do so.
It is stated in the letter from the Stove Company that several cases have
been decided which support the company's contention that if it carries out
its plans in the manner outlined above, it will not be doing business in
this State. Before I attempt to render an opinion on the question of
whether the above activities constitute "doing business in this State," I
should like to have a list of these cases so that I may examine them. The
general rule, according to P-H, State and Local Tax Service, Vol. I, Para-graph
7525, is that such an activity amounts to doing business in this State.
29] BIENNIAL REPORT OK THE ATTORNEY GENERAL 47
A great many authorities are listed in the footnote to that section and an
examination of those authorities discloses that in some cases, the com-panies
therein concerned wei-e represented by agents whose orders were
subject to approval or rejection outside of the State. Since the opinions
of this office are binding upon the officials of this State until modified or
overruled by the Courts [see VALENTINE v. GILL, 223 N. C. 396, 399,
27 S. E. 2d 2 (1943)], and since the answer to the question posed by the
Stove Company would be a decision on the question of certain tax liabilities,
I feel that in fairness to the Stove Company and the State, I should not
express any opinion until the Stove Company has had an opportunity to
present to me the authorities which it has discovered bearing on the
question presented by it.
Corporation; Selling Name of; Purchase of Good Will
[NissEN Wagon Company]
29 April 1948
I received your letter of April 28, enclosing to me the proposed certificate
of incorporation of the Nissen Wagon Company and the correspondence
of Mr. Thomas P. Pruitt with reference to the incorporation of this
company.
In your letter of February 17, you took the position that the new cor-poration
could not be created having the same name as the old corporation,
to wit, Nissen Wagon Company, unless the old corporation was dissolved,
and that the old corporation had no right to sell its name to a new cor-poration.
I think your conclusion is correct. Under the provisions of G. S. 55-2(1),
no name can be assumed by a new corporation which is already in use
by a domestic corporation or a foreign corporation authorized to do busi-ness
under the laws of this State, or a corporation which has heretofore
or may hereafter sell its good will to any other person, firm or corporation
and notice thereof has been or may hereafter be filed in the office of the
Secretary of State of North Carolina and the filing fee of $25.00 paid to
the Secretary of State.
This section has a proviso that the purchaser of the good will of such
corporation, or his or its assigns, may be permitted to use the same name
or one similar thereto of the corporation whose good will it has purchased.
This statute means that a corporation which sells out its good vnll to
someone may protect the name of the corporation from being used by some-one
else other than the person to whom the good will is sold, by complying
with this section. This would be true even though such corporation should
be dissolved. If the statute is complied with, the name could not be used
by another corporation unless such other corporation had acquired the good
will of that corporation.
This does not mean, however, that two corporations can use the same
corporate name at the same time. As suggested by you, the only way that
the new name could be given to the new corporation would be for a dis-solution
of the old corporation to take place. If the old corporation is
dissolved, you could, without other action or formality, permit the new
corporation to assume the old name.
48 BIENNIAL REPORT OF THE ATTORNEY GENEftAr, [VOL. 29]
It will be noted that the quoted part of the bill of sale contained in the
letter from Mr. Pruitt to you, under date of February 14, 1948, only pur-ports
to transfer title and interest in and to the corporate name of "Nis-sen"
or the "Nissen Wagon Company." This is somewhat confusing but
the bill of sale provides that the Nissen Wagon Company may continue
its corporate name, trademark or trade marks to such extent as may be
necessary to dispose of the remaining inventory, stock in trade or other
assets incident to completing liquidation or dissolution of the Nissen Wagon
Company.
Under the statute the liquidation of the corporation could be completed
by the Board of Directors of the corporation at any time within three
years from the date of dissolution. G. S. 55-132.
OPINIONS TO STATE AUDITOR
Law Enforcement Officers' Benefit and Retirement Fund;
Eligibility of Member Working for Private Corporation
As Police Officer
25 July 1946
You enclose with your letter a letter from Mr. John R. Morris, Executive
Secretary of the Sheriffs' Association of North Carolina. Mr. Morris would
like to know whether a police officer who is now a member of the Law
Enforcement Officers' Benefit and Retirement Fund can take a position for
a private corporation as police officer, to do only police work, and still
retain his eligibility as a member of the fund.
The eligibility of peace officers to be members of the Law Enforcement
Officers' Benefit and Retirement Fund is fixed by subsection (m) of Section
143-166 of the General Statutes, which is as follows:
"(m) Law enforcement officers in the meaning of this article shall
include sheriffs, deputy sheriffs, constables, police officers, prison war-dens
and depu1;y wardens, prison camp superintendents, prison stew-ards,
prison foremen and guards, highway patrolmen, and any citi-zen
duly deputized as a deputy by a sheriff or other law enforcement
officer in an emergency, and all other officers of this state, or of any
political subdivision thereof, who are clothed with the power of arrest
and whose duties are primarily in enforcing the criminal laws of the
state."
You will note also that subsection (5) of Section 1, which contains the
definitions as set out in the regulations and rules of the Law Enforcement
Officers' Benefit and Retirement Fund, is virtually the same definition as
that contained in the above quoted statute.
It seems to me that, assuming a man is a peace officer, the two decisive
factors are that the officer must be clothed with the power of arrest and
his duties must consist primarily in enforcing the criminal laws of the
State. I do not think the fact that a man is using his powers as a peace
officer in connection with working for a private corporation would affect
his eligibility, but I think we must assume that he is engaged primarily
in enforcing the criminal laws of the State, otherwise the corporation
would not want him to be an officer and could have the same service per-formed
by a private caretaker. I do not think that the fact that the per-formance
of the duties of such a special officer are limited to the area
or territory of the private corporation affects the matter at all. For
example, the powers of a sheriff are usually limited to his county; the
powers of a municipal policeman are in most cases limited to the area
embraced by the city limits, in fact the jurisdiction of all peace officers is
usually limited by some natural boundary. You are familiar with the
fact that railroads and certain corporations have police appointed by the
Governor under the provisions of Section 60-83 of the General Statutes
and are generally held to be eligible for membership in this fund.
50 BIENNIAL REPORT OF THE ATTORNEY GENERAL [VOL.
I am of the opinion, therefore, that a peace officer who is already a
member of the fund would continue to be eligible and continue to hold
his membership in the fund, if he accepted a position with a private cor-poration
as a police officer or special police officer to do only police work,
and I do not think the fact that he is paid by the private corporation would
in anywise affect his eligibility or retention of membership.
Emergency Bonus for 1946-1947; Application to State Solicitors
24 February 1947
You have requested my opinion as to whether or not the provisions of
the Emergency Bonus adopted by the Legislature of 1947 for the fiscal
year 1946-1947 would be applicable to the salaries of our Superior Court
Solicitors.
The Act provides in Section 2 that the appropriations authorized are
for the specific purpose of providing an additional Emergency Bonus for
public school teachers and other State employees, and shall be applied to
the salaries of public school teachers and "other State employees" only as
provided in the schedule which is therein set up. The schedule begins with
annual salaries up to and including $1,200.00, and the final line in the
schedule—annual salaries $2,701.00 to $6,600.00.
The salary of the State Solicitors is fixed by G. S. 7-44, as amended
by Chapter 764 of the Session Laws of 1945. The salary by the 1945 Act
is $5,000.00 and there is provided allowance for expenses of $750.00, mak-ing
a total of $5,750.00.
This salary is within the last figure of the schedule and, in my opinion,
the State Solicitors would be entitled to the sum there provided of $270.00.
In my opinion, the term "State employees" as used in this Act was in-tended
to be applicable to all those who work for the State, whether
ordinarily termed employees or State officers or officials. By a reference
to 30 CORPUS JURIS SECUNDUM, page 226, I find that the term "em-ployee"
has been construed in many cases not to apply to persons who
are ordinarily referred to as officials or officers. In many other cases, the
term is construed to apply to such officers or officials. The construction of
the word depends upon the statute in which it is found and its meaning
is to be ascertained from a consideration of the statute. As stated in
C. J. S., "it is not a word of art, but it takes color from its surround