Biennial report of the Attorney-General of the State of North Carolina

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BIENNIAL REPORT
OF THE
ATTORNEY- GENERAL
OF THE
STATE OF NORTH'CAROLINA
1920-1922
JAMES S. MANNING
ATTORNEY - GENERAL
FRANK NASH
ASSISTANT ATTORNEY - GENERAL
RALEIGH
Edwaeds & Broughton Printing Company
State Printers
1922
LIST OF ATTOKJVETS-GiENEKAL SINCE THE ADOPTION OF
THE CONSTITUTION IN 1776
Term of Office
Avery, Waightsill 1777-1779
Iredell, James 1779-1782
Moore, Alfred 1782-1790
Haywood, John 1791-1794
Baker, Blake 1794-1803
Seawell, Henry 1803-1808
Fitts, Oliver 1808-1810
Miller, William 1810-1810
Burton, Hutchins G 1810-1816
Drew, 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 1842-184^6
Stanly, Edward 1846-1848
Moore, Bartholomew F 1848-1851
Eaton, William 1851-1852
Ransom, Matt. W 1852-1855
Batchelor, Joseph B 1855-1856
Bailey, William H , 1856-1856
Jenkins, William A 1856-1862
Rogers, Sion H 1862-1868
Coleman, William M 1868-1869
Olds, Lewis P 1869-1870
Shipp, William M 1870-1872
Hargrove, Tazewell L 1872-1876
Kenan, Thomas S 1876-1884
Davidson, Theodore F 1884-1892
Osborne, Frank 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-
[3]
Digitized by the Internet Archive
in 2011 with funding from
Ensuring Democracy through Digital Access (NC-LSTA)
http://www.archive.org/details/biennialrep1920attrny1922
LETTER OF TRANSMITTAL
State of North Cakolina,
Depabtment of Attorney-General,
Raleigh, December 1, 1922.
To His Excellency, Cameron Morrison, Governor,
Raleigh, N. C. ^
Dear Sir:—In compliance with sections 6098-6099, Con. Stat., 1919,
I herewith submit the biennial report of this department for the years
1920-1921 and 1921-1922.
Respectfully submitted,
James S. Manning,
Attorney- General.
15]
EXHIBIT I
Civil Actions Disposed of in the Supreme Couet
OF ISToRTH Carolina
Jenkins v. Board, 180 N". C, 169.
Highway Commission v. Varner, 181 IN". C, 42.
Brunswick-Balke Co. v. Mecklenburg County, 181 N. C, 386.
Board of Education v. Commissioners, 182 3S[. C, 571.
State ex rel. Manning, Attorney-General, v. Rama Rural Community,
182 K C, 861.
Lacy V. Bank, 183 N". C, 373.
Jennings v. Highway Commission, 183 N. C, 68.
Civil Actions Disposed of in the United States Supreme Court
Betklekem Motors Co. v. Mynt, 256 U. S., 421 (reversed).
Causes Pending in that Court for Argument
Southern Railway Co. v. A. D. Watts, et al.
Atlantic and Yadkin Railway Co. v. A. D. "Watts, et al.
Atlantic Coast Line Railroad Co. v. A. D. Watts, et al.
Seaboard Air Line Railway Co. v. A. D. Watts, et al.
IN'orfolk Southern Railroad Co. v. A. D. Watts, et al.
Pending in the United States District Court for the Eastern
District of I^orth Carolina (Income Tax Cases)
Southern Railway Co. v. A. D. Watts, et al.
Atlantic and Yadkin Railway Co. v. A. D. Watts, et al.
Atlantic Coast Line Railroad Co. v. A. D. Watts, et al.
Seaboard Air Line Railway Co. v. A. D. Watts, et al.
JSTorfolk Southern Railroad Co. v. A. D. Watts, et al.
Einally Disposed op by the Interstate Commerce Commission -
In Re : Intrastate fares and charges.
[7],
EXHIBIT II
List of Cases Argued by the Attokney-General and Assistant At-torney-
General, Before the Supreme Court, Fall Term, 1920;
Spring Term, 1921; Fall Term, 1921; Spring Term, 1922.
AUGUST TERM, 1920
(180 ]Sr. C. Eeport, 677, et sequitur)
1. State V. Alley, from Franklin; abandonment; verdict, guilty;
appeal by the defendant; new trial.
2. State V. Beatty, from Yadkin; murder, first degree; verdict,
guilty; api^eal by tbe defendant; affirmed.
3. State V. Barber, from Rockingham; license tax; verdict, special,
not guilty; appeal by the State; affirmed.
4. State V. Blackwell, from Henderson; liquor; verdict, guilty; ap-peal
by the defendant ; affirmed.
5. State V. Brewer, from Davidson; mayhem; verdict, guilty; ap-peal
by the defendant ; affirmed.
6. State V. Bryant, from Harnett; murder, second degree; verdict,
guilty; appeal by the defendant; affirmed.
7. State V. Canup, from Cherokee; manslaughter; verdict, guilty;
appeal by the defendant; affirmed.
8. State V. Carrington, from Durham; larceny; verdict, guilty;
appeal by the defendant; affirmed.
9. State V. Chambers, from Rockingham; subornation of perjury;
verdict, guilty; appeal by the defendant; new trial.
10. State V. Cole, from Johnston; costs; appeal by prosecutor; af-firmed.
11. State V. Fore, from Buncombe; liquor; verdict, guilty; appeal
by the defendant; affirmed.
12. State V. Gray, from Wake; manslaughter; verdict, guilty; ap-peal
by the defendant; affirmed.
13. State V. Hamme, from Lenoir; ouster; judgment, removal;
appeal by the defendant; affirmed.
[8]
BIENNIAL KEPORT OF THE ATTORNEY-GENERAL 9
14. State V. Henderson, from Madison; murder, first degree; verdict,
guilty ; appeal by the defendant ; affirmed.
15. State V. Hodges, from Beaufort; tick rules; special verdict, not
guilty; appeal by the State; reversed,
16. State V. Hoggard, from "Washington; liquor; suspended judg-ment;
appeal by the defendant; affirmed.
17. Holdsclaw, from Catawba; murder, first degree; verdict, guilty;
appeal by the defendant; affirmed.
18. State V. Ingram, from Richmond; liquor; verdict, guilty; appeal
by the defendant ; affirmed.
19. State V. McFarland, from Henderson; false pretenses; verdict,
guilty; appeal by the defendant; new trial.
20. State v. McMillan, from Scotland; liquor; verdict, guilty;
appeal by the defendant ; affirmed.
21. State V. Pasley, from Ashe; trespass; verdict, guilty; appeal by
the defendant ; new trial.
22. State v. Shemwell, from Davidson; assault with deadly weapon;
verdict, guilty ; appeal by the defendant ; affirmed.
23. State v. Shemwell, from Davidson; carrying concealed weapon;
verdict, guilty; appeal by the defendant; affirmed.
24. State v. Sills, from Franklin; seduction; verdict, guilty; ap-peal
by the defendant ; affirmed.
25. State v. Sykes, from Chatham; liquor; verdict, guilty; appeal
by the defendant; new trial,
26. State v. Ward, from Columbus; murder, first degree; verdict,
guilty; appeal by the defendant; affirmed.
27. State v. Whitman, from Rowan ; f, and a. ; verdict, guilty ; ap-peal
by the defendant; affirmed,
28. State v, Willoughby, from Pasquotank; larceny; verdict, guilty;
appeal by the defendant ; affirmed.
Docketed and Dismissed
29. State v. Bennie Harris, from Hertford,
30. State v, Wimbish, from Vance; appeal withdrawn,
31. State V, Cobb, from Greene,
32. State v, McDonald, from Davidson,
33. State v, Redmon, from Wilson.
34. State v. Friday, from Gaston.
35. State v. Holland, from Gaston.
10 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
36. State v. Hayes, from Gaston.
37. State v. Caldwell, from Gaston.
38. State v. Henderson, from Mecklenburg.
3'9. State v. Maynor, from Mecklenburg.
40. State v. Bartlett, from Mecklenburg.
41. State V. Turner, from Anson.
42. State v. Broadway, from Anson.
43. State v. Broadway, from Anson.
44. State v, Hendley, from Anson,
45. State v, Drake, from Cabarrus.
46. State v. Stiles, from Buncombe,
47. State v. Banks and Stiles, from Buncombe,
FEBEUAEY TERM, 1921
(181 ]Sr, C. Report, 481, et sequitur)
48. State v, Barksdale, from Eicbmond; liqjuoT; verdict, guilty;
appeal by the defendant; new trial,
49. State v. Beam, from Buncombe; abandonment; verdict, guilty;
appeal by the defendant; affirmed.
50. State v, Caldwell, from "Wayne; murder, first degree; verdict,
guilty; appeal by the defendant; affirmed.
51. State V. Carraway, from Anson; manslaughter; verdict, guilty;
appeal by the defendant; new trial.
52. State v. Coble, from Anson; assault with deadly weapon; mo-tion
to dismiss allowed; appeal by the State; modified.
53. State v. Diggs, from Anson; conspiracy; verdict, guilty; appeal
by the defendant ; new trial,
54. State v, Gettys, from Burke; failure to report; indictment
quashed ; appeal by the State ; affirmed,
55. State v. Hall, from Cumberland; secret assault; verdict, guilty;
appeal by the defendant; affirmed.
56. State v. Harris, from Buncombe; murder, first degree; verdict,
guilty ; appeal by the defendant ; afiirmed.
57. State v. Helms, from Union; liquor; verdict, guilty; appeal
by the defendant; new trial.
58. State v. Hill, from Mecklenburg; assault with intent; verdict,
guilty; appeal by the defendant; new trial.
BIENNIAL KEPORT OF THE ATTORNEY-GENERAL 11
59. State v. Jessup, from Riclimond; larceny; verdict, guilty; ap-peal
by the defendant; new trial,
60. State v. Johnston, from Henderson; forfeiture; verdict for
State; appeal by intervenor; reversed.
61. State V. Jones, from Guilford; intoxication; verdict, guilty;
appeal by the defendant; affirmed.
62. State v. Jones, from Guilford; assault; verdict, guilty; appeal
by the defendant; affirmed.
63. State v. Kerner, from Forsyth; carrying pistol; special verdict,
not guilty; appeal by the State; affirmed.
64. State v. McCollum, from Montgomery; liquor; verdict, guilty;
appeal by the defendant ; judgment arrested.
65. State v. Mills, from iN'ash; reckless driving; verdict, guilty; ap-peal
by the defendant ; affirmed.
66. State v. Muse, from Buncombe; liquor; verdict, guilty; appeal
by the defendant; affirmed.
67. State v. Parris, from Henderson; liquor; verdict, guilty; ap-peal
by the defendant; affirmed.
68. State v. Pearson, from Buncombe; liquor; verdict, guilty; ap-peal
by the defendant; affirmed.
69. State v. Powell, from Harnett; abortion; verdict, guilty; appeal
by the defendant; affirmed.
70. State v. Reed, from Buncombe; liquor; verdict, guilty; appeal
by the defendant ; affirmed.
71. State V. Rhodes, from Lenoir; larceny; verdict, guilty; appeal
by the defendant; affirmed.
72. State v. Robbins, from Pamlico; assault with deadly weapon;
verdict, guilty; appeal by the defendant; affirmed.
73. State v. Robinson, from Union; manslaughter; verdict, guilty;
appeal by the defendant; new trial.
74. State v. Rountree, from Cumberland; manslaughter; verdict,
guilty ; appeal by the defendant ; affirmed.
75. State v. Stokes, from Pender; assault on woman; verdict, guilty;
appeal by the defendant; affirmed.
76. State v. Westmoreland, from Iredell; murder, first degree; ver-dict,
guilty; appeal by the defendant; affirmed.
12 biennial beport of the attorney-general
Docketed and Dismissed
77. State v. Little, from Anson; affirmed on record.
78. State v. Mills, from Nash.
79. State v. Carpenter, from ]^ash.
80. State v. Goodrich, from Vance.
81. State V. Hicks, from Nash.
82. State v. Hensley, from Buncombe.
83. State v. Grainger, from Columbus.
84. State v. Morehead, from Guilford.
AUGUST TEEM, 1921
(182 N. C. Eeport, 761, et sequitur)
85. State v. Alderman, from Pender; secret assault; verdict, guilty;
appeal by the defendant; affirmed,
86. State v. Blackwelder, from Cabarrus; murder, second degree;
verdict, guilty; appeal by the defendant; affirmed.
87. State v. Bradshaw, from Alamance ; prostitution ; verdict, guilty
;
appeal by the defendant ; reversed.
88. State v. Brown, from Hertford; house burning; verdict, guilty;
appeal by the defendant; affirmed.
89. State v. Bynum, from Orange; perjury; verdict, guilty; appeal
by the defendant ; affirmed.
90. State v. Campbell, from Buncombe; liquor; verdict, guilty; ap-peal
by the defendant; affirmed.
91. State V. Crouse, from Forsyth; liquor; verdict, guilty; ap-peal
by the defendant; affirmed.
92. State v. Dorsett, from Eockingham; robbery; verdict, guilty;
appeal by the defendant; affirmed.
93. State v. Dudley, from Carteret; fish regulation; verdict, guilty;
appeal by the defendant; affirmed.
94. State v. Falkner, from Vance; abandonment; verdict, guilty;
appeal by the defendant; new trial.
95. State v. Hairston, from Stokes; murder, second degree; verdict,
guilty; appeal by the defendant; affirmed.
96. State v. Haywood, from Cumberland; liquor; verdict, guilty;
appeal by the defendant ; affirmed.
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 13
97. State v. Jenkins, from ISTorthampton ; larceny; verdict, guilty;
appeal by the defendant; affirmed,
98. State v. Jolinson, from Wilkes; seduction; verdict, guilty; ap-peal
by tbe defendant; new trial.
99. State v. Jones, from Hyde; murder, second degree; verdict,
guilty; appeal by the defendant; affirmed.
100. State V. Lemons, from Rockingham; liquor; verdict, guilty;
appeal by the defendant ; affirmed.
101. State V. McCanless, from Rockingham ; larceny ; verdict, guilty
;
appeal by the defendant ; affirmed.
102. State v. MclSTeill, from Scotland; liquor; verdict, guilty; ap-peal
by the defendant; affirmed.
103. State v. Martin, from Forsyth; abortion; verdict, guilty; ap-peal
by the defendant; affirmed.
104. State v. Meares, from Brunswick; seduction; verdict, guilty;
appeal by the defendant ; affirmed.
105. State v. Mundy, from Mecklenburg; liquor; verdict, guilty;
appeal by the defendant; affirmed.
106. State v. Overcash, from Cabarrus; larceny; verdict, guilty;
appeal by the defendant ; affirmed.
107. State v. Pannil, from Rockingham; larceny; verdict, guilty;
appeal by the defendant ; affirmed.
108. State v. Petty, from Chatham; liquor; verdict, guilty; appeal
by the defendant; affirmed.
109. State v. Prince, from Chatham; liquor; verdict, guilty; appeal
by the defendant; reversed.
110. State V. Satterwhite, from Buncombe; liquor; verdict, guilty;
apjDeal by the defendant; affirmed.
111. State V. Skeen, from Davidson; larceny; verdict, gTiilty; ap-peal
by the defendant ; affirmed.
112. State V. Slagle, from Buncombe; murder, second degree; ver-dict,
guilty; appeal by the defendant; affirmed.
113. State V. Van Hook, from Durham; town ordinance; verdict,
guilty; appeal by the defendant; affirmed.
114. State V. "White, from Columbus; assault on woman; verdict,
guilty; appeal by the defendant; affirmed.
115. In Re: Fountain; contempt, from Edgecombe; appeal by the
defendant ; affirmed.
14 biennial report of the attorney-general
Docketed and Dismissed
116. State V. Futrell, from Wilson.
117. State V. Judd, from "Wake.
118. State V. Pitts, from Rockingham.
119. State V. Gibson, from Davidson.
120. State v. Sink, from Davidson.
121. State V. Hallman, from Union.
122. State v. Osborn, from Anson.
123. State v. Anthony and Black, from Gaston.
124. State v. Horton, from Gaston.
125. State v. McGinnis and Heavener, from Gaston.
126. State v. Majors, from Gaston.
127. State v. "White, from Mecklenburg.
128. State v. Ferrell, from Mecklenburg.
129. State v. Bonnicastle, from Mecklenburg.
130. State v. Roy Cordell, from Buncombe.
131. State V. Ed Cordell, from Buncombe.
132. State v. Abe Cordell, from Buncombe.
133. State v. Stancill and Watson, from Johnston.
134. State v. Evans, from Ashe.
135. State v. McCurrie, from Buncombe.
136. State v. John and Lee Emory, from Buncombe.
137. State v. Gormany, from Buncombe.
138. State v. E. Horton, from Buncombe.
FEBRUARY TERM, 1922
(183 :JT. C. Report, 682, et sequitur)
139. State v. Addor, from Moore; liquor; special verdict, not guilty;
appeal by the State; affirmed.
140. State v. Alston, from Chatham ; liquor ; verdict, guilty ; ap-peal
by the defendant ; affirmed.
141. State V. Baldwin, from Buncombe; liquor; verdict, guilty;
appeal by the defendant; affirmed.
142. State v. Benson, from Iredell; murder, first degree; verdict,
guilty; appeal by the defendant; affirmed.
143. State v. Brinkley, from Catawba; murder, second degree; ver-dict,
guilty ; appeal by the defendant ; affirmed.
144. State v. Brown, from Mecklenburg; liquor; verdict, guilty; ap-peal
by the defendant ; affirmed.
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 15
145. State v. Burnett, from Swain; murder, second degree; ver-dict,
guilty; appeal by the defendant; new trial.
146. State v. Clark, from Chatham; liquor; verdict, guilty; appeal
by the defendant ; affirmed.
147. State v. Crotts, from .Orange; liquor; verdict, guilty; appeal
by the defendant; affirmed.
148. State v. Evans, from Granville; liquor; verdict, guilty; ap-peal
by the defendant ; new trial.
149. State v. Freeman, from Franklin; larceny; verdict, guilty; ap-peal
by the defendant; new trial.
150. State v. Freshwater, from Alamance; town ordinance; verdict,
guilty ; appeal by the defendant ; reversed.
151. State V. Hall, from Cherokee; manslaughter; verdict, guilty;
appeal by the defendant ; affirmed.
152. State v. Haney, from Cherokee; appeal by the State from an
arrest of judgment; reversed.
153. State v. Harden, from Robeson; suspended sentence; appeal
by the defendant from judgment; reversed and remanded.
154. State v. Hauser, from Forsyth; larceny; verdict, guilty; ap-peal
by the defendant ; affirmed.
155. State v. Hooker, from Pitt; contempt; habeas corpus; prisoner
remanded.
156. State v. Jessup, from Surry; manslaughter; verdict, guilty; ap-peal
by the defendant; affirmed.
157. State v. Kincaid, from Burke ; murder, second degree ; ver-dict,
guilty ; appeal by the defendant ; affirmed.
158. State v. Krout, from Gaston; forgery; verdict, guilty; appeal
by the defendant; new trial.
159. State v. Lippard, from Mecklenburg, larceny; verdict, guilty;
appeal by the defendant ; new trial.
160. State v. Moffitt, from Burke; liquor; verdict, guilty; appeal by
the defendant ; affirmed.
161. State V. Montgomery, from ISTew Hanover; rape; verdict, guilty;
appeal by the defendant ; affirmed.
162. State v. Murdock, from Durham; liquor; verdict, guilty; ap-peal
by the defendant; affirmed.
163. State v. Pasour, from Gaston; murder, second degree; verdict,
guilty ; appeal by the defendant ; affirmed.
164. State v. Pettiford, from Person; liquor; verdict, guilty; appeal
by the defendant; affirmed.
16 BIENNIAL EEPORT OF THE ATTORNEY-GElSrERAL
165. State v. Pugli, from Randolph; attempt to burn; verdict, guilty;
appeal by the defendant; affirmed.
166. State v. Saleeby, from Pitt; liquor; verdict, guilty; appeal by
tbe defendant ; affirmed.
167. State v. Sheffield, from Moore; liquor; verdict, guilty; appeal
by the defendant; affirmed.
168. State v. Simmons, from Pasquotank; liquor; verdict, guilty;
appeal by the defendant; affirmed.
169. State v. Singleton, from Wayne; prostitution; verdict, guilty;
appeal by the defendant ; new trial.
170. State v. Smith, from Lee; liquor; verdict, guilty; appeal by the
defendant; affirmed.
171. State V. Strange, from Surry; liquor; verdict, • guilty ; appeal
by the defendant ; affirmed.
172. State v. Winder, from Pasquotank; carnal knowledge of an
infant; verdict, guilty; appeal by the defendant; affirmed.
173. State v. Yates, from New Hanover; breach of parole; habeas
corpus; appeal by the defendant; appeal dismissed.
Docketed and Dismissed
174. State v. Johnson, from Chatham.
175. State v. Spain, from Chatham.
176. State v. Phillips, from Chatham.
177. State v. Singleton, from Lenoir.
178. State v. McKeithan, from Wayne.
179. In Ee : McCade, from Wake.
180. State v. Smith, from Anson.
181. State V. Ritter, from Moore.
182. State v. Barksdale, from Richmond.
183. State v. Holdsclaw, from Caldwell.
184. State v. Holdsclaw and Teeters, from Caldwell.
185. State v. Reavis, from Yadkin.
Summary of Cases
Affirmed on defendant's appeal 91
New trial or reversed on defendant's appeal 25
Affirmed on State's appeal 4
Reversed on State's appeal 3
Appeal dismissed - - 62
Total : -.- 185
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 17
CRIMINAL STATISTICS
STATEMENT A
The Following Statement Shows the Criminal Cases Disposed of During the
Fall Term, 1920, and Spring Term, 1921
County
Alamance
Alexander. _
Alleghany. _
Anson
Ashe
Avery
Beaufort
Bertie
Bladen
Brunswick..
Buncombe-
.
Burke
Cabarrus
Caldwell.-.
Camden
Carteret
Caswell
Catawba
Chatham
Cherokee
Chosvan
Clay
Cleveland...
Columbus.
-
Craven
Cumberland
Currituck ...
Dare
Davidson
Davie
Duplin
Durham
Edgecombe.
Forsyth
Franklin
Gaston
Gates
Graham
Granville
Greene
Guilford*
Halifax
Harnett
Haywood
Henderson.
-
Hertford
Hoke
Hyde
[2]
36
42
63
100
48
12
35
41
16
394
81
68
64
3
41
30
84
4
13
64
170
47
76
14
2
85
50
72
97
48
186
40
226
18
20
44
22
106
45
102
99
60
12
18
10
104
4
2
104
6
1
25
84
24
23
241
18
48
21
4
40
17
7
51
31
102
185
84
5
1
43
10
19
134
98
196
81
93
19
107
25
135
184
40
36
160
104
45
35
116
59
32
563
95
109
80
6
129
26
46
79
85
14
13
87
257
219
151
19
3
123
58
88
227
143
351
119
292
37
19
146
44
220
142
169
99
77
48
75
31
158
39
28
126
96
43
33
81
65
39
453
99
104
74
6
108
25
45
56
74
11
9
70
201
182
102
10
2
85
44
41
177
118
330
118
248
25
16
120
32
151
143
72
66
65
42
64
26
127
oS
18 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
STATEMENT A—Continued *
County
o
O
a
.2
-S
a
"«
S
—
e
T3
">
O
S
"5
o
<
§
a
"o
o
Iredell „ 92
84
22
6
34
54
54
83
63
12
68
203
73
28
35
43
10
31
29
55
5
16
22
13
8
47
42
93
115
45
78
40
38
60
8
16
30
102
81
31
17
43
54
236
5
5
42
32
139
48
30
39
85
10
21
14
34
125
19
13
6
29
17
282
1
17
43
70
61
25
30
47
8
14
30
23
24
94
31
46
115
63
34
53
16
82
41
15
30
20
2
10
8
46
50
235
48
50
2
30
9
4
174
94
41
20
66
160
69
96
66
41
80
442
74
43
74
107
97
52
58
98
13
29
52
36
31
128
68
127
221
134
110
87
49
131
58
31
60
117
82
37
24
85
94
453
51
53
36
87
139
194
41
39
3
2
. 2
2
19
4
3
5
43
2
4
6
4
4
1
4
1
1
13
5
12
9
4
2
6
5
11
5
5
4
1
4
10
18
2
3
6
3
9
11
2
1
137
45
43
20
52
97
58
48
69
41
53
300
38
36
57
83
101
46
55
70
12
21
50
24
32
81
47
129
160
108
87
72
41
91
51
26
45
108
74
35
18
69
77
388
33
38
26
84
58
187
41
37
5
12
35
Jackson . 39
Johnston .
Jones ---
Lee .. ._ 10
35
3
8
6
43
12
40
4
Lincoln
Macon
Madison ..
Martin
McDowell. 8
67
4
9
4
15
24
117
32
Mecklenburg*.. 2
Mitchell
Montgomery.
Moore 17
Nash 14 1
New Hanover
Northampton 3
5
11
1
5
8
7
Onslow*
Orange 17 4
Pamlico
Pasquotank 4
2
4
Pender
Perquimans . .
Person ..
Pitt 20
12
10
28
11
23
2
10
51
3
5
3
4
10
6
4
9
11
42
2
13
1
12
8
2
2
40
Polk 14
Randolph .
Richmond 34
18
23
18
3
8
Robeson . 1
Rockingham 2
Rowan . ... .. 1
Rutherford
Sampson
Scotland 4
Stanly
Stokes 11
10
3
1
Surry
Swain .. .
Transylvania
Tyrrell 1
10
16
41
16
4
14
6
78
10
2
Union ... . 1
Vance
Wake
Warren 2
Washington
Watauga 1
58
9
157
13
1
Wilkes-
Wilson
Yadkin
Yancey 1
Totals 5,793 4,902 51 10,148 589 8,121 997 1.552 79
*One corporation at each sign.
In computing totals, add corporations to race and sej
BIENNIAL EEPORT OF THE ATTORNEY-GENERAL 19
Rocapitulation of Statement A
Actions Disposed of.. 10,749
10,148
598
3
Total 10,749
White --- 5,793
4,902
51
3
Total . 10,749
Convictions, including submissio ns -. . . 8,121
997
1,552
79
Acquitted
Nolle pros. - ... . ...
Otherwise disposed of
Total 10,749
20 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
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30 BIENNIAL KEPOKT OF THE ATTORNEY-GENERAL
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BIENNIAL REPORT OF THE ATTORNEY-GENERAL 35
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36 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
STATEMENT C
Fall Term, 1921—Spring Term, 1922
County 13
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192
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62
96
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35
94
151
53
164
45
176
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37
195
3
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383
69
25
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129
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1
1
2
2
169
10
9
14
15
206
10
32
14
7
10
29
2
66
7
12
14
20
53
198
63
4
13
16
30
103
83
211
25
15
27
43
531
68
104
58
7
61
40
15
110
197
24
40
72
188
243
142
9
7
147
40
215
291
140
282
97
219
55
7
154
60
275
38
92
400
103
62
101
33
74
123
62
13
40
153
20
1
9
15
11
5
3
52
2
5
2
1
3
3
2
2
5
13
17
17
1
7
.3
11
16
8
22
29
2
3
15
1
6
12
3
5
6
2
3
11
3
25
17
160
14
30
'1
72
162
21
10
32
27
344
70
93
42
5
52
39
15
71
74
15
29
51
127
170
82
9
8
102
22
144
186
93
280
69
194
28
5
118
44
179
39
60
234
106
44
85
26
66
67
66
13
44
95
25
2
26 2
13
8
15
10
3
9
44
5
2
3
5
Beaufort -- .- 36
Brunswick 15
62
4
Buncombe . 172 5
Burke -
15
11
2
4
3
2
5
1
Caldwell _ 5
Carteret . 1
Caswell 1
Chatham 21
25
6
10
15
29
49
15
20
100
3
3
8
48
38
56
1
Chowan-
Clay
3
Columbus. 6
Craven _ 3
Cumberland _ . - 6
Currituck
Dare.-
Davidson 46
8
132
156
95
140
54
72
24
26
7
40
57
20
18
18
3
9
25
14
42
51
33
2
4
51
12
1
3
Edgecombe.. 2
Forsyth-.. . 4
Franklin .. .. 8
Gaston
Gates. - 6
Graham. 2
Granville.
Greene
80
26
95
36
29
29
37
42
52
22
31
.3
23
11
26
86
3
2
25
19
26
13
Guilford 85
Halifax
Harnett 21
38
13
134
4
6
Hertford
Hoke-
7
18
4
24
16
4
5
11
42
Hyde
Iredell
Jackson 1
Lee 13
- 49
8
Lenoir .. 26
BIENNIAL EEPOET OF THE ATTORNEY-GENEEAL 37
STATEMENT C—Continued
County
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Lincoln 42
184
47
4
70
184
74
10
35
92
24
30
28
17
33
8
14
46
76
71
108
75
57
93
23
31
83
21
15
46
139
40
17
8
56
74
199
16
25
46
1
150
106
53
21
9
13
51
194
47
10
81
269
73
14
59
184
71
31
51
41
54
26
33
57
212
86
123
158
183
132
46
46
119
37
19
54
144
40
24
10
107
88
471
45
58
45
19
150
308
54
21
3
1
33
2
3
3
11
2
2
2
3
4
1
14
2
7
13
7
3
3
3
2
1
2
3
3
2
10
14
31
1
2
1
15
13
1
1
47
98
47
10
62
149
46
12
52
137
73
16
48
22
45
27
22
56
119
46
112
112
117
132
45
36
93
26
20
44
120
28
14
6
79
52
383
28
30
21
18
98
264
51
20
3
15 84
1
6
12
118
1
7
27
103
49
3
25
24
24
22
19
12
150
17
22
96
78
42
26
15
39
18
5
10
8
9
2
61
28
303
29
34
1
19
15
215
2
1
55
3
8
48
1
4
3
2
12
105
28
1
6
34
1
Mitchell
1
1
3
10
8
3
8
2
51
10
17
27
23
2
1
3
29
10
16
1
9
4
Onslow.
Orange
1
1
Pprq\iimn.ns 3
Pitt
Polk.
Randolph
Richmond
Robeson
Rockingham
55
32
32
44
3
7
1
1
6
1
Rutherford
Scotland
Stanly
3
Stokes 4
26
15
12
4
18
10
65
3
8
7
2
15
52
4
2
8
1
TyrreU
19
38
54
13
16
19
1
Vance 2
Wake-.
Warren.. .. 1
Washington. 5
Watauga
Wilkes 52
2 3
Yadkin
Yancey
Totals 6,553 4,184 63 10,168 632 7,473 1,381 1.851 106
*One corporation.
.11 Corporations.
In computing totals, add corporation to race and sex.
38 BIENNIAL KEPOBT OF THE ATTORNEY-GENERAL
Recapitulation of Statement C
Total number criminal actions disposed of
Males- -
Females
Corporations
Total
White _.
Colored
Indians
Corporations
Total
Convictions, including submissions
Acquitted
Nolle Pros..-
Otherwise disposed of
Total
10,168
632
11
6,553
4,184
63
11
7,473
1,381
1,851
106
10,811
10,811
10,811
10,811
BIENNIAL KEPOET OF THE ATTORNEY-GENERAL 39^^
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BIENNIAL KEPORT OF THE ATTOENEY-GENEBAL 49
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BIENNIAL REPORT OF THE ATTORNEY-GENERAL S5
STATEMENT E
Number of criminal actions disposed of.
.
Males - -
Females
Corporations --
Totals-
White..-
Colored
Indians
Corporations.
Totals..
Convictions, including submissions.
Acquitted
Nolle pros
Otherwise disposed of
Totals.
Murder—first degree
Murder—second degree
Manslaughter,
Rape.
Assault with intent to rape
Arson
Burglary—first degree
Burglary—second degree
Forgery
Larceny
Intoxicating liquors.
Other crimes and misdemeanors.
Totals
From
July 1, 1920,
to
July 1, 1921
10 148
598
3
5,793
4,902
51
3
8,121
997
1,552
79
10
172
38
184
^1,515
1,600
10,749
10,749
10,749
10,749
10,749
From
July 1, 1921,
to
July 1, 1922
10,168
632
11
6,553
4,184
63
11
7.473
1,381
1,851
106
3
143
54
8
115
19
2
60
237
1,578
2,004
10,811
10,811
10,811
10, 8U
10,811
56 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
STATEMENT F
Alphabetical List op Crimes Committed from July 1, 1920, to July 1, 1922
Name of Offense
From
July 1,1920
to
July 1, 1921
From
July 1,1921,
to
July 1, 1922
Abandonment
Abduction
Abortion-
Affray
Arson
Assault and Battery
Assault with deadly weapon
Assault with intent to rape
Attempt to burn dwelling
Attempt to poison
Bastardy
'Bigamy
'Bribery---
Buggery
Burglary—first degree
Burglary—second degree
Burning other than arson
Carrying concealed weapons.
Compounding Felony --
Concealing birth of child
Conspiracy
Counter feiting
Cruelty to animals
Disorderly house _-_
Disposing mortgaged property
Disturbing meetings
Election laws
Embezzlement
Escape-
Failure to list taxes
Failure to work public road
False pretense .-
Fish and gSjme laws
Food and drug laws
Forcible trespass
Forgery -
Formication and adultery
Gambling or lottery
Health laws ,--
Housebreaking
House burning
Incest
Injury to property
Intoxicating liquors
Larceny and receiving
Libel
License, practicing profession without-
License, doing business without- --
Manslaughter
Military laws
Municipal ordinances
Murder—first degree
Murder—second degree
Nuisance
Obstructing public highway
137
8
5
343
8
662
1,167
38
38
4
753
105
80
153
92
39
100
14
166
77
1
168
184
241
520
4
314
3
1,600
1,515
1
5
16
30
10
172
50
9
BIENNIAL REPORT OF THE ATTORNEY-GENERAL
STATEMENT F—Continued
57
Name of Offense
Obstructing river. .
.
Official misconduct-
Perjury
Rape
Resisting officer
Riot- --.
Robbery
School laws
Seduction
Slander^
Trespass
Miscellaneous - -
Totals-
From
July 1,1920
to
July 1, 1921
10,749
From
.July 1,1921
to
July 1, 1922
1 2
3
47 38
20 8
73 105
20
108 71
14 12
64 42
19 31
117 105
1,145 69
10,811
58 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
Fees Transmitted by Attorney-General to State Treasurer from August Term, 1920, Through February Term, 1922
49 State V. Hoggard
209 State ex rel Hyatt v. Hamme
241 State v. Gray & Ballentine
259 Jenkins v. State Board Elections
273 State v. Ward
243 State v. Sills
377 State v. Baxter Shemwell.
378 State v. Baxter Shemwell
379 State v. Chas. Brewer, Harvey Brewer and Wm. Brewer
401 State v. McMillian..
402 State v. Ingram
465 State v. Whitman & Russell
600 State v. John Blackwell
529 State v. Estie Fore
577 State v. Camps _..
49 State v. Carpenter.
50 State v. Mills
91 State V. Williams et als
112 Highway Commission of Halifax County v. H. B. Variier, et ab
161 State V. Robinson
209 State v. Rhodes
273 State v. David Rountree
274 State v. Stokes
275 State v. Geo. Hall
377 State v. Chas. Jones
378 State v. Chas. Jones
449 B^nswick-Balke Company v. Mecklenburg Counry
467 State v. Westmoreland
497 State v. Parris
533 State v. Beam
534 State v. Pearson
635 State v. Harris
536 State v. Jim Muse
Fall Term 1921
49 State V. Futrell
50 In re: Fountain
92 State v. Petty
93 State v. Jenkins
94 State v. Stancil & Watson
161 State V. Dudley
273 State v. Meares
274 State V. White-
275 State V. Haywood..
276 State v. Aldferiman
322 State V. Van Hook
323 State v. Bynum
346 State v. Pannill
347 State v. Pitts
348 State v. Dorsett et als
349 State V. Lemmons.
350 State v. McCanns
BIENNIAL EEPOKT OF THE ATTORNEY-GENERAL 59
Fees Transmitted by Attorney-General to State Treasurer fr)m August Term, 1920 through February Term, 1922—
Continued
Fall Term 1921 (Continued)
361 State v. Grouse...
352 State v. Martin
352a State v. Evans
377 State V. Hairston
381 Satte V. Keen
401 State v. McNeil
433 State V. Mundy
465 State v. Overcash & Pitchel
450 State V. Community.
533 State V. Satterwhite
535 State v. McCulley
536 State V. Carson
537 State v. Campbell
538 State v. Roy CardelL...
539 State V. Ed Catdell
640 State V. Abe Cardell
$ 13.75
13.75
10.00
13.75
13.75
12.50
13.75
16.25
3.75
12.50
13.75
11.25
13.75
12.58
12.50
12.50
1 State V. Simmons
2 State V. Winder....
12 Jennings v. High Commission.
.
81 State V. Joyner
82 State v. Ras Smith
83 State v. Clark
84 State v. Alston
85 State V. Johnson
86 State V. Spain
87 State v. Phillips
88 State v. McKeithan
161 State V. Hooker...
162 State v. Saleeby
209 State v. Singleton
274 State v. Yates
275 State v Montgomery
321 State v. Pettiford
322 State v. Crotts
324 State v. Murdock
346 State v. Gessup
347 State V. Strange
402 State V. T. K. Smith.....
403 State v. Ritta
404 State V. Sheffield....
405 State v. Barksdale
434 State v. Brown & Smith
436 State v. Passour
465 State v. Kincaid
466 State v. Moffat.....
467 State v. Holsclas
468 State v. Holsclas
472 State v. Pou
497 State V. Brinkley
498 State v. Reavis
533 State v. Baldwin
578 State V. Hall & Haney
13.30
13.30
2.20
10.00
13.30
13.30
12.20
10.00
10.00
10.00
10.00
17.70
13.30
10.00
14.40
16.60
13.30
12.20
13.30
14.40
12.20
10.00
10.00
14.30
10.00
25.50
12.20
20.00
12.20
10.00
10.00
12.20
18.75
10.00
13.30
17.70
$1,520.68
OPINIONS TO THE GOVERNOR
Rewards
The Governor's authority to offer rewards is contained in section 4554 of
the C. S. of 1919.
(a) Amount—not exceeding $400.00.
(b) For what reward offered—for the apprehension and delivery of the
fugitive to such person and at such place as in the proclamation shall he
directed.
(c) For whom rewards may be offered—a person who commits a felony or
other infamous crime within the State and who has fled out of the jurisdic-tion
thereof, or concealed himself within the State to avoid arrest, or who,
having been convicted, has escaped and cannot otherwise be apprehended.
1. Definition of: A reward is a recompense or premium offered by the
Governor or an individual in return for special or extraordinary services
to be performed.
2. To whom made: The offer or reward may be either to a particular
person, or class of persons, or to any and all persons complying with its
terms. Prior to 1913 a duly qualified officer was not entitled to a reward.
Maljyass v. the Governor, 70 N. €., 130. Since 1913, however, such ofiicers
are entitled to the reward, subject to certain provisos contained in the act,
section 4555 of C. S.
3. Nature of: It is an offer to contract upon the conditions stated in the
offer. It becomes a binding contract when some person within the class to
whom it is offered acts upon it and. performs the conditions stated in the
offer. One who offers a reward has the right to prescribe whatever terms
he may see fit, and these terms must be complied with before any contract
arises between him and the claimant, though if the performance substau'
tially corresponds with the terms of the offer, it will generally be sufficient.
The terms, however, upon which the Governor may offer a reward are con-tained
in and limited by the statute above referred to.
4. Action for reward: In an action for a reward, the burden of proof is
upon the claimant, and where the reward was offered for the conviction of a
criminal, the record of the court wherein the conviction was had is com-petent
and prima facie evidence.
5. The cases in North Carolina which have dealt with rewards are: Hite
v. Goodman, 21 N. C., 364: Currie v. Wendell, 33-361; Washburn v. Humph'
Ties, 35-88; Malpass v. Governor, ut supra.
Directors of N. C. Railroad and A. and N. C. Ratt.road—Appointment.
June 27, 1921.
nis Excellency, Governor Morrison, Raleigh, N. C.
Dear Governor:—In reply to your request of the 25th of June as to
number of directors to be appomte^-hy~yOu~'T^f^th-i5~NOTth~tra:fOtina Rail-
[60]
BIENNIAL REPORT OF THE ATTORNEY-GENEKAL 61
road Company and for the Atlantic and North Carolina Railroad Company,
I beg to say that under the Act of 1852, ratified 25th of December, 1852,
being an act to amend the act to incorporate the North Carolina Railroad
Company, it is provided in section 2 that the affairs of the company shall
be managed and directed by a general board to consist of twelve directors,
eight of whom shall be appointed annually by the Governor, by and with
the advice and consent of the Council of State, and may be removed in
like manner; provided that no one not being a bona fide stockholder shall
be one of the directors. You are, therefore, entitled to appoint eight di-rectors
of the North Carolina Railroad Company, and this being more than
a majority of the board, they elect officers of the company, to-wit: Presi-dent,
secretary and treasurer and attorney. I do not have a copy of the
lease of the North Carolina Railroad to the Southern, but I recall the fact
that the lessee pays a certain amount which is included in the rental for
the payment of the organization expenses of the North Carolina Railroad.
I think this amount is $6,000. The directors are also entitled to free
transportation on the North Carolina Railroad.
In regard to the directors of the Atlantic and North Carolina Railroad
Company, the charter of that company provides that the affairs of the
company shall be managed and directed by a general board to consist of
eight directors to be elected by the stockholders from among their num-ber,
but it is provided that the Governor appoints the proxy to vote the
stock of the State in that railroad, and as the State controls more than a
majority of the stock, the proxy of the State controls the election of the
directors, who in turn elect the officers of the corporation. I think this
covers your inquiry.
Yours very truly, James S. Manning,
Attorney-General.
Emergency Judges Pkacticing Law
September 29, 1921.
Hon. Cameron Morrison, Governor, Raleigh, N. G.
Dear Sir:—You ask this office to investigate whether or not the emergency
judges provided for in chapter 125, Public Laws 1921, may practice law.
We have investigated the matter carefully and can see no reason why
they should not in all courts except that over which they are in an emer-gency
called upon to preside. We have no statute in North Carolina which
prohibits judges of the Superior Court from practicing law in other
courts. The custom, as well as the propriety, of the matter has prevented
them from attempting to practice in such other courts. Their oath of
otB.ce would prevent them from being interested as adviser or attorney
in any case which they are to hear as judge. Section 11 of Article IV
of the Constitution plainly contemplates that the emergency judges therein
provided for exercise judicial functions only while they are acting as judges,
and, consequently, they may practice law under the limitations set out
above.
Yours very truly, James S. Manning,
Attorney-General.
OPINIONS TO THE SECRETARY OF STATE
Consolidated Statutes—Distkibution op
January 15, 1921.
Hon. J. Bryan Grimes. Secretary of State, Raleigh, N. C.
Dear Sir:—Your letter of January 13th to this office was for some reason
delayed in transmission. We received it this morning. You ask how
many sets of the Consolidated Statutes you are, under the statute, to trans-mit
to the Supreme Court. Section 9, chapter 238, Public Laws of 1919,
requires you to distribute one set each to those to whom the public laws
are now distributed. The distribution of public laws is regulated by
section 7663 of the Consolidated Statutes. Among others you are required
to send one set each for the Supreme Court justices. This set is, in our opinion,
the individual property of each of said judges by reason of the fact that
each is now, at the time of distribution, an incumbent of that office. You
are required further to send eleven copies for the Supreme Court library—
•
sixteen in all. The Attorney-General is also entitled to a set individually
as incumbent of that office. Section 7663 requires you also to deposit two
sets in the office of each department of the State Government. We con-strue
the term "Department" as therein used as referring to the Executive
Departments of the Government established by the Constitution itself.
Consequently two sets are to be deposited in the office of the Attorney-Gen-eral
in addition to the set transmitted to him personally as incumbent of
the office. As Mr. Haywood, the librarian of the Supreme Court, has been
distributing these sets to the Attorney-General's office as well as to the
judges and depositing them in the Supreme Court Library, he is entitled
to nineteen in all.
Frank Nash.
, Assistant Attorney-General.
Corporation—Amendment of Charter
January 17, 1921.
Hon. J. Bryan Grimes, Sec7'etary of State, Raleigh, N. C.
Dear Sir:—We have considered the letter of Mr. R. D. Douglas to your
office, dated January 15, 1921.
The Consolidated Statutes, section 1131, expressly authorizes amend-ments
to the charter of a corporation, whether organized under a special
act or general laws. If the stockholders have the notice for the time pro-vided
by the by-laws, if they provide any time, or ten days otherwise, of
the purpose of the meeting, they may act upon an amendment to the char-ter,
whether it happens to be at the annual meeting or at a call meeting.
The statute intends that they should have specific notice of the proposition
to amend.
We return herein the letter to you of Mr. Douglas.
Yours very truly, James S. Manning,
Attorney-General.
[621
biennial keport of the attorney-general 63
Corporation—Cancexi^ation of Charter
January 22, 1921.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—
In re: Banner Mfg. Co.
In reply to yours of January 21.
You state: "On December 23, 1919, the Corporation Commission certified
to this office the name of the Banner Manufacturing Company, for failure
to file report, and directed that the charter be cancelled as provided in
section 82, subsection 17, of the Revenue Act.
"As required under the same section, the Secretary of State sent notice
to the Banner Manufacturing Company. However, the notice was sent to
Elkin, N. C, instead of Mt. Airy. The Corporation Commission certified to
this office the name of the Banner Manufacturing Company, Elkin, N. C,
whereas it should have been Mt. Airy.
"The notice sent by us to the Banner Manufacturing Company, Elkin, N.
C, was returned unclaimed by the postmaster."
The statute upon which your action was based is as follows:
"Section 82 (17). If a corporation, wherever organized, re-quired
by the provisions of this act to file any report or return
or to pay any tax or fee, either as a public utility or as a cor-poration,
organized under the laws of this State for profit, or
as a foreign corporation for profit doing business in this State
and owning and using a part or all of its capital or plant in this
State, or as a sleeping car, freight line, or equipment company,
fails or neglects to make any such report or return or to pay
any such tax or fee for ninety days after the time prescribed
in this act for making such report or return or for paying such
tax or fee, the Commission shall certify such fact to the Sec-retary
of State. The Secretary of State shall thereupon cancel
the articles of incorporation of any such corporation which is
organized under the laws of this State by appropriate entry
upon the margin of the record thereof, or cancel the certificate
of authority by any such foreign corporation to do business
in this State, by proper entry. Thereupon all the powers, priv-ileges,
and franchises conferred upon such corporation by such
articles of incorporation or by such certificate of authority shall
cease and determine. The Secretary of State shall immediately
notify such domestic or foreign corporation of the action taken
by him."
You will observe that this statute is mandatory in its provisions. You
have no option in the matter, but must cancel the articles of incorpora-tion
as therein provided. As we interpret the act, the failure to address
the notification to the proper office, whereby the corporation whose ar-ticles
were cancelled, failed to receive the notification, does not affect the
cancellation except in the following particulars: ,
(a) The penalty provided in section 82, subsection 18, for the exercise
of its franchise after such cancellation would not apply until actual no-tification.
64 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
(b) The two years within which such corporation, upon complying with
the conditions set out in section 82, subsection 19, could be reinstated would
not begin to run until the corporation was notified.
We think, then, that the only way the Banner Manufacturing Company
can be reinstated as a corporation, is by complying with the provisions of
section 82, subsection 19, of chapter 90, Public Laws 1919.
Yours very truly, James S. Manning,
Attorney-General.
Consolidated Statutes—Justices of the Peace
February 4, 1921.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. G.
Attention Mr. Denmark:
Dear Sib:—You state that certain justices of the peace claim the right
to receive the annotated edition of the Consolidated Statutes under section
9 of chapter 238, Public Laws of 1919, and Consolidated Statutes section
7663. If it were possible to conceive of the Legislature's being so utterly
regardless of economy as to put the State to this enormous expense, sec-tion
9 standing alone would give some plausibility to this claim. But it
does not stand alone, and construed in connection with the rest of the chap-ter,
particularly section 3 thereof, there is no basis at all for the claim.
There was a special edition prepared for the justices of the peace, and it
has been distributed to them. The Legislature, we think, evidently in-tended
this as the only edition which they should receive.
Yours very truly, James S. Manning,
Attorney-General.
Foreign Corpc(eation—Doing Business
February 7, 1921.
Hon. J. Bryan Grimes. Secretary of State, Raleigh, N. C.
Dear ,Sir:—You enclose letter of the Heater Company to you and ask
whether in the opinion of this office the said Heater Company must domes-ticate
in this State upon its statement of facts as follows:
"We ship goods on consignment to the Langley Sales Company
at Greensboro, and the business there i& carried on under their
name. They act both as sales agents, accepting orders in their
own name for goods which are charged direct to th.em, and
likewise accept orders in our name they might deliver out of
stock which they carry at Greensboro, or which we might ship
direct from Utica, they being paid an such transactions in the
form of a commission on the sales."
The Supreme Court of the State has not as yet distinctly defined the
term "doing business" in our domestication statute. C. S. 1181. It is
clear that if a foreign corporation establishes an agency in this State
to sell its goods and those goods are delivered in part or wholly to the
purchaser from the stock of the agency, the corporation would be doing
business within the State and must, therefore, qualify under section 1181.
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 65
If, however, that is not the case, but orders are taken by an agent within
the State and filled at its home office, the corporation dealing directly
with the purchaser and shipping the goods to him would be engaged in
an interstate transaction, and that could not, except in rare instances,
be regulated by the State. If the resident agent is a factor, or commission
merchant, and the foreign corporation consigns its goods to this com-mission
merchant to be sold by him upon a commission, the foreign cor-poration
would not, it seems, be doing business within the State, in such
way as to require it to be domesticated. Butler Shoe Co. v. U. S. Ruhher Co.,
156 Fed. Rep., p. 1; In re Monongahela Distilling Co., 186 Fed. Rep., 220.
Assuming that the above statement made by the Heater Company is
true, and that the Langley Sales Company sells the goods on commission,
we think that their principal would not be doing business in the State
within the meaning of our statute. Perhaps it would be well to inquire
whether the Langley Sales Company have a license as commission mer-chants
under section 38 of the Revenue Act, chapter 90, Public Laws 1919
Yours very truly, James S. Manning,
Attorney-General.
Statute—Clerical Ekror
March 10, 1921.
Hon. J. Bryan Grimes, Secretary of State, Raleigh N. C.
Dear Sir:—You ask my opinion as to whether or not you would be
justified in correcting the clerical error in the enrolled bill entitled "An
Act to provide for uniform registration books in the city of Charlotte." The
original bill with all of its stamps showing its enactment by the Legisla-ture
at the session of 1921 in section two provides "That the County Board
of Elections for Mecklenburg County." The enrolled bill provides "The
County Board of Education for Mecklenburg County." It is manifest from
the context of the act itself that the word "education" in the above quota-tion
is a clerical error and was intended to be "elections." You are the
official custodian of the original bills enacted by the Legislature into laws,
and under the decision of the Supreme Court of this State, I think you
have the power and authority to correct a mere clerical error. The courts
certainly have this power, and in a case where the clerical error is so
manifest as in this case, I think you have the power to correct it.
Yours very truly, James S. Manning,
Attorney-General.
Foreign Corporation—License—Domestication
March 28, 1921.
Hon. J. Bryan Grimes. Secretary of State, Raleigh, N. C.
Dear Sir:—In reply to yours of March 2'9th.
This office has invariably ruled that where a statute requires a particular
department of the State government to license a foreign corporation to do
66 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
a specific business in ttie State of North Carolina, such corporation, if
licensed by said department to do this business, need not domesticate un-der
section 1181 of the C. S.
Yours very truly, James S. Manning,
Attorney-General.
Women as Jurors
April 5, 1921.
Miss Mina^^ie Bagwell, Coriwration Clerk, Office of Secretary of State,
RaleigJi, North Carolina.
Dear Miss Bagwell:—Your letter of April 4th enclosing copy of House
Bill 209, Senate Bill 322, being "An Act to declare certain words designating
offices or positions as words of common gender when applied to the
holder of the office or position, whether the holder be male or female," is
received. You ask my opinion if under this act women may serve on
juries. I beg to inform you that in my opinion this act confers no power
upon any person, man or woman, not vested in such man or woman under
the Constitution and laws of this State. It is simply what we call a
clesignatio personarum. If women should at any time be eligible to serve
on the jury, then lawyers and judges, addressing the jury so composed,
would still address them as now instead of "Ladies and Gentlemen" of
the jury, and if they should be eligible to sit on the grand jury the bills
of an indictment would still read "The jurors for the State present" instead
of "The jurors and juresses of the State present."
I prepared this bill in order to simplify legal phraseology and if in the
future it should be made competent for women to serve upon juries or
if it should be held by the courts that women are competent to sit on
juries, then the above difficulties would be avoided. It infrequently hap-pens
that a testator appoints a man and a woman to execute his will and
we have to describe them in all proceedings as executor and "executrix,"
and frequently it happens that a woman is appointed to administer the
estate of the deceased person and we have to call her "administratrix," and
when there are two women we have to call them "administratrixes," which
is rather bunglesome and difficult of pronunciation.
Yours very truly, James S. Manning,
Attorney-General.
Statute—Correction of Journal
April 27, 1921.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—The Legislature at its recent session attempted to revise,
amend and re-enact the Municipal Finance Act. The bill was of such a
character as to require its enactment in accordance with Article 2, section 14,
of the Constitution. The House Journal shows that it passed properly
and constitutionally the various readings in that body. The Senate Jour-nal
shows that it passed its several legal and constitutional readings in
that body, the ayes and noes being taken and entered upon the journal
BIENNIAL REPORT OF THE ATTORNEY-GENEEAL 67
on its second and third readings. It appears from the Senate Journal,
however, that after tlie bill had passed its third reading in accordance with
the Constitution, on motion of Senator Varser, the vote upon which it
passed its third reading was reconsidered. Thereupon Senator Sams offered
an amendment, which was adopted and the bill then passed its third
reading. There is no entry of the ayes and" nays upon this passage of the
bill as amended. The original bill itself has stamped on it by the prin-cipal
clerk of the Senate this entry: "Passed third reading, ayes 43 and
nays none," while between the words "reading" and "ayes" is written with
a pen "as amended."
Article 2, section 14, of the Constitution, provides as follows:
"No law shall be passed to raise money on the credit of the
State or to pledge the faith of the State, directly or indirectly,
for the payment of any debt, or to impose any tax upon the peo-ple
of the State, or to allow the counties, cities and towns to do
so, unless the bill for the purpose shall have been read three
several times in each House of the General Assembly, and passed
three several readings, which readings shall liave been on three
different days, and agreed to by each House respectively and
unless the yeas and nays on the second and third readings
of the bill shall have been entered on the journal."
The Supreme Court has repeatedly held that the provisions of this sec-tion
are mandatory, and that a statute of the character therein defined
is void if not enacted in accordance with them. It is obvious that the defect
in the enactment of this law was in the failure, if the journal speaks
the truth, to call and enter upon the journal the ayes and nays after the
bill had been reconsidered and after it had been amended.
In Cushlng, Law and Practice of Legislative Assemblies, 9th Ed., section
12'65-, it is said, with reference to motions to reconsider a vote:
"If this motion prevails, the effect of the vote in question is
abrogated, and the matter stands before the assembly in pre-cisely
the same state and condition, and upon the same ques-tion,
as if the vote, which has been ordered to be reconsidered,
had never been passed."
The same statement is contained in section 1278, where it is said:
"When a motion to reconsider prevails, it * * * entirely
abrogates the vote passed on the question, which is thereby or-dered
to be reconsidered."
It was necessary, then, in order to comply with section 14, that the ayes
and nays should have been taken and recorded in the journal upon the
passage of the bill after it had been amended. The journal, being a record
which the Constitution requires the Legislature to keep, in itself imports
verity, and under ordinary conditions can be amended so as to make it
speak the truth only by the Legislature itself. See Commissioners v. Bank,
152 N. C, 387.
68 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
It appearing, however, from the entry on the original bill that a roll
call was had on the passage of the bill as amended on its third reading
with the result 43 ayes and nays none, you inquire whether you, as
custodian of the record, have authority to permit the chief clerk to amend
the journal so as to make it accord with the entry on the bill itself. We
are clearly of the opinion that you have no such authority. It is only
necessary to state one reason, among several which exist, why you do
not have this authority. The section above quoted requires the yeas and
nays on the second and third reading of the bill to be entered on the jour-nal.
This necessitates the entry of the names of those voting aye and the
names of those voting no, if there are any. From the entry on the bill
alone, you could, by no possibility, be certiiied of the names of those
who voted aye and the names of those who voted no.
Yours very truly, James S. Manning,
Attorney-General.
Foreign Corporation—Stock No Par Value—Domestication
May 2, 1921.
Messes. Aemistead Jones & Son, Attorneys at Law, Raleigh, N. C.
Dear Sirs:—In reply to yours of April in regard to the Samuel Stores,
Incorporated.
The ruling of the Attorney-General's office that a foreign corporation,
whose capital stock has no par value, could enter the State only upon pay-ment
of $250.00 was based upon necessity as the law was then. As you know,
the statute provides that such corporation shall pay to the Secretary of
State for the use of the State 20 cents for each $1,000 of the total amount
of the capital stock authorized to be issued by such corporation, but in
no case less than $25.00 and no more than $250.00, and also a filing fee of
$5.00. As you know also, prior to the recent statute which we hereinafter
quote, a corporation could not be incorporated in North Carolina unless
the amount of the total authorized capital stock, number of shares into
which it is divided, the value of each share, etc., are stated in its certifi-cate
of incorporation. There was no such thing, then, in North Carolina
as a corporation formed for commercial purposes with stock having no par
value. When a foreign corporation presented itself for domestication in
the State, without having any par value to its stock, it was claiming a
privilege to do business in the State with capital stock upon wliich a domes-tic
corporation could not be organized. There was no way for the Secre-tary
of State to ascertain the value of such stock, so he was instructed
by this office to charge a fee of $250.00.
The recent act of the Legislature, chapter 116, Public Laws of 1921, in
section 5, provides as follows:
"The tax upon the certificate of incorporation, or extension
or renewal of corporate existence, or increase of capital stock
without nominal or par value, shall be the same as if each
share of stock had a par value or face value of one hundred
doll?.rs."
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 69
You will perceive from this, then, that there are 30,000 shares of com-mon
stock of the Samuel Stores, Inc., in addition to the 4,000 of preferred
stock. This makes 34,000 shares. Upon these, in accordance with the recent
act, the fee for domestication should be calculated. At the time we re-cently
reaffirmed the ruling of this office imade on May 10th, 1918, we
were unaware of the ratification of the act quoted above. Indeed, we were
informed that it had failed on its third reading in one of the houses, and
as a matter of fact the journal so shows. Last Friday, however, we dis-covered
that it was ratified March 9th, 1921. As you know, our court has
held that the journal can be resorted to to contradict a ratification by the
presiding officers only when the bill is of such a character as to require
the several readings as provided in Article 2, section 14 of the Consti-tution.
So this bill is undoubtedly now and has been since March 9, a law
of this State.
We are sending copy of this letter to the Secretary of State.
Yours very truly, James S. Manning,
Attorney-General.
Cooperative Association—^Chartee
June 22, 1921.
Hon. J. Eryan Grimes, Secretary of State, RaIeigJi„ N. C.
Attention Miss Bagwell:
Dear Sir:—We think all the certificates sent to you of cooperative
associations should have the word "cooperative" in their title. We have
before advised you that the provisions of the statute requiring ordinary
corporations to end with the word "company," "corporation," or "incor-porated,"
do not apply to these cooperative associations. They have con-ferred
upon them special privileges and the Legislature has provided a spe-cial
way by which they may be organized. We think it is a clear intent of
this act that the word "cooperative" should appear in the title of the asso-ciation.
Yours very truly, James S. Manning,
Attorney-General.
Motor Vehicles—License Plates—Mortgages
September 24, 1921.
Hon. J. Bryan Grimes, Secretary of State, Raleig\ N. C.
Attention Mr. J. E. Sawyer—In reply to yours of September 22.
You state that the local Morris Plan Company has been compelled to
take into its possession certain motor vehicles that it may enforce a mort-gage
held by it upon these vehicles. From them the mortgagor has re-moved
the license plates and you wish to know whether the Morris Plan
Company can operate these cars without obtaining a new license plate
for each car.
We think it clear that if any officer, agent or employee of the company
operates a car for his or their private purposes, it is done subject to the
70 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
requirement that a license plate should be put upon each car. As mortga-gee,
the Morris Plan Company takes these cars into its possession under
the. authority contained in the power of sale given it by its former owner.
That requires a sale of the cars after 20 days' advertisement. During this
period it has no right or authority to operate them at all except for im-mediate
demonstration purposes at the auction sale. It may sell these cars
to realize its money out of them without taking out a dealer's license
under section 72 of the Revenue Act. Not being a dealer then, it cannot
avail itself of the dealer's license plate without subjecting itself to the
license tax of section 72 of the Revenue Act. It is not possible to define
definitely how far such mortgagees may go in demonstrating the car. We
think, however, that any use of the car must be confined to that which
demonstrates it to one who, the Company knows, is a proposed purchaser
at the mortgage sale. Indiscriminate demonstration would result in the
company's being compelled to put ordinary license plates upon the cars.
Yours very truly, James S. Manning,
Attorney-General.
Foreign Corporation—Doing Business
September 28, 1921.
Hon. J. Bryan Grimes. Secretary of State, Raleigh, N. C.
Dear Sir:—We have considered the letter of Mr. Samuel Spyker to you
dated September 24, 1921. If the American Dealers' Corporation does the
business, described by Mr. Spyker in his letter, through the mails or through
traveling men who sell goods without its establishing an office in this
State for the purpose of transacting the business, in our opinion, the com-pany
would not have to domesticate in the State, it being engaged in inter-state
commerce. If, however, it establishes an office in the State, it should
domesticate under our statute.
Yours very truly, James S. Manning,
Attorney-General.
B. AND L. Association—Incorporation
Hon. J. Bryan Grimes. Secretary of State, Raleigh, N. C.
Attention Miss Bagwkex:—
In re: LilUngton Building and Loan ComjKiny.
It is very clear, we think, that if the above company desires to incor-porate
as a building and loan company, it must do so under chapter 93 of
the C. S. If it desires to do a real estate and insurance business, it must
incorporate under chapter 22, and with a different name from that above.
The person who drew the certificate for this company was probably inad-vertent
to the provision of section 5169 of the Consolidated Statutes, as
follows: "It shall be unlawful for any corporation, company, society, or
association doing business in this State not so conducted to use in its
corporate name the term 'building and loan association' or 'building as-sociation,'
or in any manner or device to hold themiselves out to the public
as a building and loan association."
We return herewith the above certificate.
Yours very truly, James S. Manning,
Attorney-General.
biejstnial report op the attorney-general 71
Raileoads—Extension of Charter
October 31. 1921.
Hon. J. Bryan Grimes. Secretary of State, Raleigh, N. C.
Dear Sir:—
In re: Application Graham County Railroad Company to extend
Charter.
Prior to 1919 the following, which is now section 3456 of the Consolidated
Statutes, was the law governing forfeiture of railroad charters for non-users:
"If any railroad corporation shall not, within three years after
its articles of association are filed and recorded in the office of
the Secretary of State, or the passage of its charter, begin the
construction of its road and expend thereon ten per cent of the
amount of its capital, or shall not finish the road and put it in
operation in ten years from the time of filing its articles of
association or passage of its charter as aforesaid, its corporate
existence and powers shall cease."
It is obvious that the company must have under construction its
road and have expended thereon ten per cent of the amount of its capital
within three years after its articles of association are filed and recorded
in the office of Secretary of State, or if it had a legislative charter, within
three years of its grant. In addition to this, it must finish the road and
have it in operation Avithin ten years of its charter.
Section 3457 of the Revisal, as amended by chapter 184 of the Public
Laws of 1921, reads as follows:
"In all cases where railroad companies have been chartered
by an act of the General Assembly (or the charter of any rail-road
company has been amended by act of the General As-sembly),
during or subsequent to the session of one thousand
nine hundred and eleven, but where construction work has not
begun in accordance with the provisions of preceding section
(or having been begun, such construction work has not been
completed), it shall be lawful for and the duty of the Secretary
of State, upon application of any such railroad company and
the payment to the State of the same fees as provided in s3ction
1218 of the Consolidated Statutes, to extend from time to time
for periods of two years, the time within which to begin (or
renew) construction work as required by the preceding section;
and the fact of extending the time by the Secretary of State
as herein provided, shall, for the period of such extension, fully
and to all intents and purposes, renew corporate existence and
corporate powers as fully as the same are conferred in the
original charter."
The Graham Railroad Company was granted a charter by the General As-sembly
in 1905, chapter 184, Private Laws of that year. By chapter 2 43,
Private Laws of 1909, it was granted two years from March 3, 1909, to
organize. Chapter 266, Private Laws 1911, granted the railroad an extension
72 BIENNIAL EEPORT OF THE ATTORNEY-GENERAL
of two years from March 3, 1911, within which to begin the construction
of its railroad. Chapter 273, Private Laws of 1915, in Section 6, provides
as follows:
"And whereas, said Graham County Railroad Company has
heretofore been duly organized by its incorporators in the man-ner
provided in chapter one hundred and eighty-four of the
Private Laws of one thousand nine hundred and five and within
the time provided in chapter two hundred and forty-three of the
Private Laws of one thousand nine hundred and nine, and has,
within the time prescribed by chapter two hundred and sixty-six
of the Private Laws of one thousand nine hundred and
eleven, commenced the construction of its railroad at a joint
on the Tennessee River called Fontana and connecting with
the line of the Southern Railroad built from said town of Bush-nell
down to that point and extending therefrom in the direction
of said town of Robbinsville, and has purchased and acquired
a large amount of rolling stock for operation on said railroad,
but has been obliged to suspend construction for want of funds,
] and it is desired that its acts in so commencing the construc-tion
of its railroad be ratified, and that it be relieved from any
forfeiture or penalties for suspension of said construction:
Therefore, all acts of the Graham County Railroad Company
in the construction of its railroad as aforesaid are hereby
ratified and confirmed, and the time within which to resume
construction, and any and all rights granted said corp'>ration
under chapter one hundred and eighty-four of the Private
Laws of one thousand nine hundred and five, and under any
of the acts heretofore amending said chapter, are hereby ex-tended
for the further term of two years from and after the
date of the ratification of this act."
As the Graham Railroad was chartered in 1905, the 27th day of February,
and a.s the ten years within which the railroad must have been completed
under the general law, had expired at the time of the ratification of the
foregoing act of 1915, March 8th, it is obvious that the two years' extension
of time carried with it the extension of the ten-year period also, not, however,
to another period of ten years from March 8, 1915, only until March 8. 1917.
It seems that it did not get any further extension of time from the Legisla-ture.
It has, therefore, forfeited its charter, and, unless it has a remedy
in the above quoted section 3457, it can proceed no further. We think that
under that section it may have its corporate existence extend-^d for
another period of two years, and consequently advise that you grant its
application.
Yours very truly, James S. Manning,
Attorney-General.
Corporations—Trust Company
December 12, 1921.
Hon. J. Bryan Grimes. Secretary of State, Raleigh, N. C.
Attention Miss Bagwell:—Referring to the enclosed application to in-corporate
the Southern Trust Company at Elizabeth City, North Carolina,
I beg to advise
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 73
(1) That under Section 1143 of the Revisal as amended by the Banking
Xiaw of 1921, it being section 81 of an act entitled "An act to regulate
banking in the State of North Carolina," etc., no corporation is permitted
to use the words "bank, banking, banker or trust" as a part of its name
except corporations which are required by law to report to the Corpora-tion
Commission or Insurance Commissioner. This, I understand, means,
not that a corporation which uses in its name the words above quoted has
the privilege of using such words as a part of its name to report to the
Corporation Commission, but that no corporation can use as a part of its
name either the words above mentioned unless that corporation reports
to the Corporation Commission or to the Insurance Commissioner.
(2) Turning to section 1035 of the Consolidated Statutes, Article 2, cor-porations
and businesses within the control of the Corporation Commis-sion,
I do not find organized for the purposes named in this proposed
charter of the Southern Trust Company, that it is one of the businesses or
corporations over which the Corporation Commission has supervision.
(3) Turning to section 6274 of the Consolidated Statutes, the business
proposed to be done by this Southern Trust Company does not fall within
the companies enumerated in that section over which the Insurance Com-missioner
has supervision.
There is, however, an individual power given to the Southern Trust Com-pany,
to-wit: "To act as executor, administrator, collector, guardian, re-ceiver,
trustee, and in any and all other fiduciary capacities," which may
possibly be construed to qualify it as a fidelity insurance company under
section 6376 of the Consolidated Statutes, but I do not think that this
charter ought to be granted when it gives or purports to give a fidelity
company such extended powers. If the company proposes to do the business
of a fidelity insurance company, then the powers in this charter are too
broad and govern too many matters, some of which are not at all pertinent
to or relate to the business of fidelity companies, though some are. Take,
for instance, the enumeration of the powers to be granted to this company
in paragraph (a), paragraph (d), paragraph (f), certainly in my opinion,
are not at all related to the business of a fidelity insurance company or a
fidelity trust company, and I do not advise you to permit a company that
contemplates engaging in the business of a fidelity company to have such
powers as are claimed by this company. You will find that the Act
of 1921 amended section 1143 by including corporations under the super-vision
of the Insurance Commissioner.
Yours very truly, James S. Manning,
Attorney-General.
Corporation—Dissolution—Proxy
February 15, 1922.
Hon. J. Bryan Grimes, Secretary of State, Raleigh. N. C.
Dear Sir:—
In re: Representation of stockholders dy proxy in a meeting for
dissolution.
We think that section 1182 of Consolidated Statutes contemplates actual
Tiotice of a meeting called for the purpose of dissolving the corporation,
74 BIENNIAL KEPOET OF THE iiTTOENEY-GENEKAL
but unless otherwise provided in the charter or by-laws of the corporation^
each stockholder may vote by proxy in such meetings. We think, however,
that a general proxy would not be sufficient to authorize a vote of the
stockholders in such meeting. That proxy must, we think, be special. See
section 1173. This section is not directly controlling, but it does to some
extent furnish a guide in such matters.
Yours very truly, James S. Manning,
Attorney-General.
Municipal Finance Act, Extea Session 1921
—
Validity
February 21, 1922.
Miss Minnie Bagwell, Secretary of State's Office, Raleigh, N. C.
Dear Miss Bagwell:—Without reciting the previous entries on the
journals of the two Houses on the passage of the Municipal Finance Act
of the extra session of 1921, it appears from the Senate Journal that,
on December 17, 19'21, the following entries were made:
"A Special Message from the House of Representatives.
Me. Peesident:—
"It is ordered that a special message be sent to the Senate,
informing that Honorable Body that the House of Representa-tives
has passed the following bills and resolutions and asks
the concurrence of your Honorable Body therein:
"S. B. 395, H. B. 59, a bill to amend and re-enact the Muni-cipal
Finance Act, being sections 2918 to 2969, Consolidated
Statutes of North Carolina.
Respectfully,
Alex Lassitee,
Principal Cleric of the House.
"Upon motion of Senator Swain, the bill is placed upon the
Calendar."
On Monday, December 19, 1921.
Bills and resolutions on the Calendar were taken up and
disposed of as follows:
S. B. 395, H. B. 59, a bill to amend and re-enact the Municipal
Finance Act, being sections 2918 to 2969, Consolidated Statutes
of North Carolina.
The bill passed its second reading, ayes (naming them) 30;
nays none.
The bill takes its place on the Calendar.
It is contended upon this that the Senate Journal does not show a first
reading. In both Houses, however, the first reading of a bill is by title unless
some member calls for its reading in full. It plainly appears here, we
think, that this bill was read by title as a matter of fact and that the
Senate treated such reading as the first reading, though that fact may
not have been specifically entered upon the journal. Rule 21 of the Senate
provides as follows: "After the first reading, unless a motion shall be
made by some senator, it shall be the duty of the president to refer the
subject matter to an appropriate committee." Senator Swain's motion to
BIENNIAL KEPOKT OF THE ATTORNEY-GENERAL iO
place the bill upon the Calendar must be interpreted in the light of this
rule. "Without this motion it would have been the duty of the president
to refer the bill to a committee. With his motion adopted the bill was placed
upon the Calendar. Thus the Senate itself interpreted the situation then
before it as a first reading of the bill. It carries this interpretation with
it over to December 19th and then puts the bill upon its second reading
and ayes and nays are properly called and entered upon the journal.
It seems to us that it would be sticking in the letter and disregarding
the spirit and reason of the Constitution, to hold that this was not a
showing upon the Journal of the Senate, of a first reading of the bill.
And there is nothing, we think, in Glenn v. Wray, 126 N. C, 733, or the
Chief Justice's opinion rendered to the extra session, which at all confiicts
with this interpretation of the Journal of the Senate.
Yours very truly, James S. Manning,
Attorney-General.
CoRPOEATiON
—
Cancellation of Articles
February 24, 1922.
Miss Minnie Bagwell, Corjwj'atioti Clerk, Raleigh, N. C.
Dear Miss Bagwell:—Referring to our conversation this morning. When
the articles of incorporation of any corporation are cancelled under sub-section
17 of section 82 of the Revenue Act, all the powers, privileges and
franchises conferred upon such corporation by its articles or by its certi-ficate
of authority, if it is a foreign corporation, immediately cease and
determine. The corporation, however, is not subject to the fine for ex-ercising
any of its powers after the articles of incorporation are thus can-celled
until it is notified by the Secretary of State of such cancellation. At
any time within two years it may renew its corporate authorities under
sub-section 19 of said section 82 by complying with the provisions of such
sub-section. The time, however, between the cancellation under sub-sec-tion
17 and the revocation of the cancellation under sub-section 19, is the
time within which if it should exercise, after notice of cancellation by the
Secretary of State, any of its corporate functions it would subject itself
to the fine provided by sub-section 18. It would render itself in addition to
this fine liable to a suit by the Attorney-General in behalf of the State for
an injunction to restrain such corporation from transaction of any business
within the State. Section 1193 of C. S. permits corporations, whose charters
are annulled by forefeiture, to remain corporations for three years for the
purpose of closing up their business, but not to continue the business for
which it was established.
We are inclined to the opinion that any exercise of the corporate functions
of the corporation after cancellation, and before the revocation of the
cancellation, though subjecting the corporation to a fine as above said,
would be valid as the act of a corporation de facto in its dealings with the
third persons, certainly, when those third persons had no knowledge
of the cancellation of the charter. This on the principle of an estoppel to
prevent fraud.
Yours very truly, James S. Manning,
Attorney-General.
76 biennial eeport of the attorney-general
Primary—State Board of Elections
March 15, 1922.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Dear Sir:—Replying to your letter of March 14th.
We return herewith the letter of Col. P. M. Pearsall to you, dated March
11th. He is, we think, clearly right in his interpretation of the election
law as amended by chapter 181 of the Public Laws 1921. He is also right,
we think, in saying that the State Board of Elections have nothing whatever
to do with school or bond elections of any kind. The effect of the act of
1921 was to transfer from the Secretary of State to the State Board of
Elections certain duties heretofore performed by that officer.
We return Col. Pearsall's letter herewith.
Yours very truly, James S. Manning,
Attorney-General.
Motor Vehicles—Trucks of Road Contraction
April 5, 1922.
Hon. J. Bryan Grimes, Secretary of State, Raleigh, N. C.
Attention Mr. J. E. Sawyesi.
In re: Trucks of Hutton Engineering and Contracting Company.
Dear Sir:—With the utmost deference for the opinion of Mr. Jones
Fuller, whose opinions we always regard with respect, we are constrained
to disagree with it.
Section 2595 of the C. S. declares that the term, "Highway" in the motor
vehicle statute shall be construed to mean any public highway, township,
county or State road, or any country road.
Section 30 of chapter 2, Public Laws of 1921, declares that any corpora-tion
that shall operate any motor vehicle upon any highway of the State
without license shall be guilty of a misdemeanor. The only exceptions
to this universal rule are those with reference to .such vehicles owned
by the State of North Carolina, or any department thereof, by any county,
township, city or town, or by any board of education.
We do not see how the trucks in question could have been taken to the
place where they are doing the work without having been operated on a
highway within the above quoted definition. We do not see how they
could be taken from the place where they are now at work without being
again operated on a public highway. That at the present time they are
being used on a highway which is closed to trafl^c because being con-structed
or repaired, could not, we think, be a safe standard by which to
administer the license act. That act was enacted not only to secure revenue
for the State, but also to protect the lives and limbs and safety of the
citizens of the State by requiring identification numbers on each motor
vehicle operated where the negligent operation thereof might occasion
damage or injury lo the persons or property of others.
If you should adopt as a rule that the liability to license would be fixed
by the use the motor vehicles are put to, that opens the door to all sorts
of difficulties, we think, in the administration of the law.
BIENNIAL KEPOET OF THE ATTORNEY-GENERAL 77
In the opinion of this office, then, the Hutton Engineering and Contracting
Company, should have a license plate on each one of its trucks operated as
described in Mr. Fuller's letter.
Yours very truly, James S. Manning,
Attorney-General.
Foreign Corporations—Doing Business
June 9, 1922.
Hon. J. Bryan Grimes, Secretary 0/ State, Raleigh, N. C.
Attention Miss Minnie Bagwell.
Dear Sib:—"We have considered the letter of Mr. J. C. Adams to you in
which is requested an opinion from the Attorney-General a.s to whether
or not the Transcontinental Oil Company would be doing business in North
Carolina under section 1181 of the C. S. under the following conditions:
This company is a Delaware Corporation with general offices at Pitts-burgh,
Pennsylvania. It has an agency at Atlanta, Georgia, from which
oils are shipped into North Carolina. The company is desirous of using
a public warehouse in the State of North Carolina to which car load ship-ments
could be made and the material reconsigned there by the public ware-house
owner to the company's local customers, the billing, selling and
remitting to the local customers, all to be made from the Atlanta office.
The company's reason for desiring to operate in this manner is because
of the high freight rate for shipments of less than car load quantities.
It is manifest, we think, that the shipments from the warehouse to local
North Carolina customers are to be made after the bulk of the original ship-ment
is broken. In other words, a car load is shipped from without the
State to the local warehouse men, and the local warehouse men are to
break the bulk of such car load lot by transferring the oil to barrels or
otherwise as the customers of the company may demand after orders are
obtained from these customers for these small amounts. Under these cir-cumstances,
we think this company would be doing business within the
State as defined in section 1181. It might be otherwise if orders were
obtained from local customers before the shipment of the car load and
with the warehouse a mere distributing point for those customers, within
the principle of Western Oil Refining Company v. Lipscomb, 244 U. S., 346.
The plan here, however, is to store the oil for future sale and delivery.
Yours very truly, James S. Manning,
Attorney-General.
OPINIONS TO THE STATE AUDITOR
Penalties, etc.—Sec. 88, 1920
April 9, 1922.
Hon. Baxter Durham, State Auditor, Raleigh, N. C.
Dear Sir:—In yours of April 9, you inquire whether or not you shall
advise the sheriffs to collect a penalty on the payment of taxes for 1920,
after May 1, 1921, and, if so, whether that penalty shall be 1 per cent or 4
per cent.
We think there is no penalty at all provided for this delayed payment of
the taxes of 1920, for the following reasons: Section 2 of chapter 62, P.
L., Extra Session, 1920, provided a discount of 1 per cent upon all taxes
paid in the months of October and November; while in the months of De-cember
and January the net amount charged was to be paid, and then
commencing in February with one per cent interest added, for the suc-ceeding
months and additional 1 per cent per month to be added until the
taxes were paid. This manifestly would require a levy of 4 per cent ad-ditional
if the 1920 taxes Vv^ere paid in May, 1921.
At the recent session of the Legislature, the following act became a law:
An act to repeal the penalties in the payment of taxes.
The General AssemMy of North Carolina do enact:
"Section 1. That section 2 of chapter 62 of the Public Laws
of Extra Session of 1920 be amended by striking section 2
and inserting: 'All taxes shall be due on the first Monday in Oc-tober
of each year and on all taxes paid in the months of
October and November a discount shall be given to the tax-payer
of one per cent. All taxes paid in the months of Decem-ber,
January, February, March and April shall be paid at the
net amount charged, and the sheriff or tax collector shall settle
at the net amount charged for said months. That this act shall
only apply to the collection of taxes levied for the year 1920."
The law as finally enacted differed very materially from the bill which
was first introduced. In the progress of that bill through the Houses, a
substitute was offered for it and that substitute was adopted and became the
law above set out. The effect of this law, in our opinion, is to do away
entirely with penalties for not paying taxes promptly, so far as the 1920
taxes are concerned.
Yours very truly, James S. Manning,
, Attorney-General.
Express Companies—License—Departmental Construction
September 23, 1921.
Hon. Baxter Durham, State Auditor, Raleigh, N. C.
Dear Sir:—The following is part of a letter written to Hon. A. D. Watts,
Commissioner of Revenue, and desired by you:
"What is the tax year for express companies in the payment of their
franchise tax levied under Schedule C?
[78]
BIENNIAL REPORT OF THE ATTORNEY-GENERAL 79
"The report is required to be made on or before July 30 of each year.
It is required to be paid to the State Treasurer within thirty days after
notice to the company of tlae amount. Section 4 of the Revenue Act, and
section 116 of the Machinery Act. Section 92 of the Revenue Act requires
the State Treasurer to construe such act where it requires the payment of a
license tax directly to him. He informs us that he has uniformly con-strued
the privilege taxes of Schedule C, as, under section 76 and section
26, entitling the company paying them to the privilege of carrying on
their business for a period of 12 months, which shall expire on the 31st
day of May in each year. He says that this has been his construction of
the act for a great number of years and that the General Assembly was
cognizant of tliis construction.
"The construction placed upon a statute by the officers whose
duty it is to execute it is entitled to great consideration, espe-cially
if such construction has been made by tlie highest officers
in the executive department of the Government or has been
observed and acted upon for many years; and such construction
should not be disregarclel or overturned unless it is clearly
erroneous." Gill v. Commissioners, 160 N. C. at 188.
"However much we might be inclined to disagree with this construction,
if it were a new question, we think, under the rule above stated, we should
now adopt it."
Yours very truly, James S. Manning,
Attorney-Ge7ieral.
Railroads—Agreement With
November 19, 1921.
Hon. Baxter Durham, State Auditor. Raleigh, N. G.
Dear Sir:—I have the enclosed letter from the General Solicitor of the
Southern Railway System. Under the direction of the Federal judges at
Greensboro, on October 6th, the Southern Railway Company agreed to pay
to all counties, cities or towns, special school districts or special taxing
districts, all taxes that may be due such county, city, special school district
or other special taxing district of the State upon an ad valorem value upon
the Southern's properties in the State and as a part of the stipulation it
was agreed, all by direction of the court, that no part of the franchise tax
should be collected, nor should any penalties be enforced against the Rail-way
Company for non-payment of any taxes other than the taxes upon
the ad valorem value of sixty million dollars. The same agreement was
entered into with the Atlantic and Yadkin Railroad people upon an ad
valorem valuation of $1,975,806 and also with the A. C. L. Railroad Com-pany
based upon the stipulated value as to that. You, as State Auditor,
are a party to tliese suits and, of course, must observe these stipulations.
Yours very truly, James S. Manning,
Attorney-Geyieral.
OPINIONS TO THE STATE TREASURER
Fair Associations—^Appropriations
January 14, 1921,
Hon. B. R. Lacy, State Treasurer, Raleigh, N. C.
Dear Sir:—Referring to your request for my opinion as to how much:
the State Treasurer should pay to tlie Albemarle Agricultural and F'.sh
Association, created by chapter 141, Public Laws of 1901, I beg to advise
you that as there are ten counties in this association and each county is
required to contribute $100.00 as a member of it, you should pay to its
treasurer, upon the proper certificate, the sum of $1,000.00, being $100.00'
for each county.
The Code of 1883, section 2222, provided that the members of these as-sociations
should pay only $50.00 and the State should pay only $50.00, but
the Act of 1901, chapter 141, was an amendment to the above section of
the Code, and that act provided that the said section should be amended
by adding at the end thereof the following: Quoting Revisal Section 3872
and now Consolidated Statutes, section 4949. But the Act of 1905, chapter
513, amended section 2222 of the Code by striking out the word "fifty" m
both lines 14 and 17 and inserting in lieu thereof "one hundred," so that
the contribution that you make, a.s State Treasurer, to these associations
is the $100.00 for each county that is a member thereof. I do not think
the Consolidated Statutes repeal chapter 513 of the Public Laws of 1905,
for the reason that section 8106 of the Consolidated Statutes provides that
they shall not have the effect to repeal any public statute which affects
only a particular locality, and it seems to me that this statute under con.
Fideration affects only a particular locality.
Yours very truly, James S. Manning,
Attorney-General.
Appropriation—Orthopedic Hospital
March 23, 1921.
Hon. B. R. Lacy, State Treasurer, Raleigh, N. C.
Dear Sir:—Your letter of the 22nd instant in reference to the voucher
of $1,000 issued by the North Carolina Orthopedic Hospital, is received.
You informed me that this hospital is not quite ready for the reception
of patients, but it is expected that it will be opened for such purpose
within the next two months. You also informed me that the land owned
by the hospital is large enough for a small farm and for gardening pur-poses.
The Legislature, in the session of 1921, made an appropriation for
the support and maintenance of this institution. It is suggested that this
$1,000 is to be used for the purpose of preparing and planting the garden
and farm of the institution, so that when the institution does open, and
in the due course of cultivation, it may have the benefit of planting at
I 801
BIENNIAL KEPOBT OF THE i TTORNEY-GENERAL 81
this season. If the institution waits until the building is opened for the
reception of patients and until patients are received before it does any
planting in its garden and farm, then, the entire season will be lost.
You ask me if the words of the statute "support and maintenance" cover
such expenses and if it is available until the institution is actually opened
for the reception of patients. In my opinion, the money can be used
for such purpose as is contemplated and such purpose is within the
definition of the words "support and maintenance."
I would suggest to you, however, that you have a resolution of the
board of directors of the institution sent you" setting forth the purposes
for which this money embraced in the voucher is to be used, and directing
the superintendent to draw for a specified sum for this purpose. Of course,
I cannot pass upon the question of how much would be proper to be used
for this purpose.
Yours very truly, James S. Manning,
Attorney-General.
Institution for the Blind^—Sale of Property
March 23, 1921.
Hon. B. R. Lacy, 8tate Treasurer, Raleigh, N. C.
Dear Sir:—I acknowledge your letter of the 22nd in which you ask my
construction of section 10, chapter 328 of the Public Laws of 1919, being
the section which authorizes you to borrow $150,000 for the State Blind
Institution at Raleigh. This section authorizes the Governor and Council
of State to sell the square and buildings thereon now occupied, in the city
of Raleigh, by the State Blind Institution, and the payment of the proceeds
of the sale to you for the use of the said institution in the completion of
its new buildings and equipment thereof. Pending the sale of this prop-erty,
you are authorized to borrow $150,000 for the use of the institution
and to issue your notes therefor. These notes, when issued by you, become
the obligations of the State of North Carolina. It is true that the Legis-lature
thought the square and buildings now occupied by the institution
would bring more than $150,000, but I do not think this appraisement of
its value affects the obligation of the notes issued by you or the liability
of the State for their payment. It would be entirely competent for the
Legislature to withdraw from the Governor and Council of State authority
to sell this square and the buildings thereon. The notes executed by you,
as State Treasurer, upon this $150,000 would, notwithstanding such a course,
be binding upon the State. If the property should be sold under authority
of this section and should bring less than the Legislature's appraisement,
it would be competent for the Governor and Council of State to execute
in the name of the State the proper deeds to the purchasers, and under
the section, the proceeds, when collected, would be used to discharge these
notes. I do not think that you could use the proceeds of the sale of the
square and buildings thereon for any other purpose. They would not go
into your general fund, but I do not think the holders of these notes
would look to the proceeds of the sale for the payment of the State's obli-gations
to them.
Yours very truly, James S. Manning,
Attorney-General.
6
82 biennial kepokt of the attorney-general
Traveling Companies—Dog Shows
May 23, 1921.
Hon. B. R. Lacy, State Treasurer, Raleigh, N. C.
Deak Sir:—In the matter of the William Todd Traveling Theatrical Com-pany,
you ask whether or not this company is, by the proviso added to
section 23 of the Revenue Act of 1921, taken out of this section and put
within section 29. It seems that William Todd conducts a moving picture
and vaudeville show and makes all week stand.s. He has a small troupe
of performing dogs which give about a five-minutes' performance in connec-tion
with the other features of his show. The proviso above referred to
reads as follows:
"Provided, further, that any traveling organization which
exhibits animals or conducts sideshows in connection with its
performance shall not be considered a traveling theatrical com-pany
under this section."
We think the intention of this was to take out of the section a traveling
organization which either has a menagerie for the exhibition of animals
or conducts a sideshow in connection with his show under the main
tent. The mere fact that Todd, then, has a few trained dogs who, as one of
the features of his vaudeville show, perform, would not bring him within
the proviso. On the contrary, his company remains a traveling theatrical
company and is taxable under section 28.
Yours very truly, James S. Manning,
Attorney-General.
Motor Vehicles—Dealers' Powers
May 23, 1921.
Hon. B. R. Lacy, State Treasurer, Raleigh, N. C.
Dear Sir:—We have considered the letter of Mr. T. C. Hunt, president,
and have concluded that hi.s contention in regard to local taxation of
dealers in automobiles is correct. The whole scope and tenor of section
72 of the Revenue Act, it seems, prohibits towns from levying an addi-tional
tax upon dealers or manufacturers who have paid the $500.00
license tax to the State. The section permits the manufacturer or dealer
to appoint local agents and to obtain for them a certified duplicate license
without the payment of an additional tax to the State and expressly
provides that these agents shall not be subject to an additional tax, and in
the very next sentence permits only counties to levy a tax of $5.00 upon
each agent doing business in the particular county. This latter clause
operates only as an exception to the general prohibition again.st taxing
these agents in the preceeding clause.
Yours very truly, James S. Manning,
Attorney-General.
Piano Dealers—Duplicate License
May 23, 1921.
Hon. B. R. Lacy, State Treasurer, Raleigh. N. C.
Dear Sir:—In the matter of Calahan selling pianos for Pendleton, a
duly licensed dealer under 69 of the Revenue Act. It seems that Calahan,
as agent for Pendleton, was selling pianos in Mitchell County. When
BIENNIAL KEPOKT OF THE ATTORNEY-GENERAL 83
called upon by the sheriff of that county for the license tax he did not
have the duplicate required by section 69. That section provides with
reference to these duplicates as follows:
"Any firm, person or corporation taking out license under
this section may employ an unlimited number of agents and
secure a duplicate copy of said license for each agent by paying
a fee of one dollar to the Treasurer, and the county in which
the applicant does business may charge a tax of five dollars;
each duplicate so issued to contain the name of the agent, to
whom it is issued, and the same is to be non-transferable. An
agent holding such duplicate copy of licen.se is licensed thereby
to sell only the instruments sold by the holder of the original
license."
If Pendleton, then, had secured this duplicate for Calahan from the State
Treasurer by paying a fee of $1.00 to him, and it was only through in-advertence
that Calahan did not have it with him in the county of Mitchell
at the time he made the sales, we think that his presentation of this
duplicate to the sheriff after the sales were made, if the time it was issued
was before the sales were made, would exempt him from any further
liability to the State.
Yours very truly, James S. Manning,
Att07mey-General.
Statutes—Validity
May 23, 1921.
Hon. B. R. Lacy. State Treasurer, Raleigh, N. C.
Dear Sib:—In my opinit)n chapter 1 of the Public Laws of the State of
North Carolina, Extra Session 1920, was enacted in accordance with the
requirements of Section 14, Article 2 of the Constitution. I have examined
the journal entries of the House and Senate on the passage of this act.
Under section 6 of the act you are empowered, when authorized by the
State Board of Education, to borrow for the State Board an amount not to
exceed $300,000.00 for the purposes specified in said section.
As a member of the State Board of Education I know that you have
been authorized to borrow the sum of $300,000.00.
Yours very truly, James S. Manning,
Att07"ney-General.
Statutes—Validity
May 28, 1921.
Hon. B. R. Lacy, State Treasurer, Raleigh, N. C.
Dear Sir:—I have your request for my opinion as to whether or not an
act of the General Assembly of North Carolina at its session of 1921, en-titled
an act to issue bonds of the State for the permanent enlargement
and improvement of the State educational and charitable institutions, was
enacted by the said General Assembly in accordance with the requirement
of section 14 of Article II of the Constitution of the State. I have ex-amined
the journal entries certified by the Secretary of State as to the
84 BIENNIAL REPORT OF THE ATTORNEY-GENERAL
enactment of this law, and in my opinion it appears from these entries that
the said act was passed in strict accordance with section 14 of Article II
of the Constitution, and is a valid law of thei State of North Carolina.
Yours very truly, James S. Manning,
Attorney-General.
Statutes—Validity
May 28, 1921.
Hon. B. R. Lacy, State Treasurer, Raleigh, N. G.
Dear Sib:—Referring to your request for my opinion as to whether or
not the State Road Law, known as the Doughton-Connor-Bowie Act, enacted
at the session of the General Assembly of North Carolina of 1921, was
enacted as required by section 14, Article II, of the Coastitution, and
whether the said act is a binding and valid law of the State of North
Carolina, I beg to say that in my opinion the said act was passed through
the Senate and House of Representatives in strict accordance with sec-tion
14, Article II, of the Con.stitution and that the same is a valid law
of the State of North Carolina.
I have before me, in reaching this conclusion, a certified copy of the
journal entries furnished by the Secretary of the State of North Carolina.
Yours very truly, James S. Manning,
Attorney-General.
Motor Vehicles—Taxes Illegally Collected
June 14, 1921.
Hon. B. R. Lacy, State Treasurer, Raleigh, N. C.
Dear Sib:—You ask this office for an interpretation of the situation
arising from the recent decision of the Supreme Court of the United States
in the case of the Bethlehem Motors Corporation and others v. Geo. W.
Flynt, sheriff, and others, with reference, first, to your authority to collect
the five hundred dollar license tax provided for those engaged in the busi-ness
of selling automobiles and automobile trucks under section 72 of
the Revenue Act of 1921; and second, w^hether or not you are compelled
to refund such tax heretofore collected under the Revenue Act of 1917
and 1919.
1. The Bethlehem Motors case was argued by the counsel for the plaintiffs
in error in the Supreme Court of the United States on the theory that the
following proviso to section 72 of the Revenue Act of 1917 rendered the
whole section unconstitutional because this proviso discriminated against
non-resident manufacturers:
Provided, further, that if any officer, agent, or representative
of such manufacturer shall file with the State Treasurer a sworn
statement showing that at least three-fourths of the entire
assets of the said manufacturer of automobiles are invested in
any of the following securities or property, viz., bonds of the
State of North Carolina or of any county, city, or town of said
State or any property situated therein, and returned for taxation
therein, the taxes named in this section shall be one-fifth those
named."
BIENNIAL KEPOET OF THE ATTORNEY-GENERAL 85
The court, upon this contention, held as follows:
"In resistance to the assertion that the provision discrimi-nates
against non-resident manufacturers, the Attorney-General
contends that it is as applicable to resident manufacturers as to
non-resident manufacturers, and, of course, his inference is that
its condition can be performed as easily by one as by the other,
and discriminates against neither.
"To this we cannot assent. The condition can be satisfied
by a resident manufacturer, his factory and its products in the
first instance being within the State; it cannot be satisfied by
a non-resident manufacturer, his factory necessarily being in
another State, some of its products only at a given time "being
within the State. Therefore, there is a real discrimination, and
an offense against the Fourteenth Amendment, if we assume
that the corporations are within the State."
This amounts to a declaration by the Supreme Court of the United States
that section 72 of the Revenue Act was unconstitutional and void, because
the above quoted proviso discriminated against non-resident manufacturers.
Section 72 of the Revenue Act of 1919 and of 1921 are almost identical with
section 72 of the Act of 1917. The Act of 1921, however, in view of the
threatening situation created by the pendency of this action in the United
States Supreme Court, contained in it (for the first time in the history of
such legislation in the State) this provision:
"If any clause, sentence, paragraph, or part of this act shall,
for any reason be adjudged by any court of competent jurisdic-tion
to be invalid, such judgment shall not affect, impair, or in-validate
the remainder of this act, but shall be confined in its
operation to the clause, sentence, paragraph, or part thereof
directly involved in the controversy in which such judgment
shall have been rendered. No caption of any section or set of
sections shall in any way affect the interpretation of this act
or any part thereof."
The effect of this provision, in the light of the decision of the Supreme
Court of the United States (a court of competent jurisdiction), is to strike
out from section 72 of the Revenue Act of 1921 the proviso which, under
this opinion, discriminates against non-resident manufacturers, and to
leave the remainder of the section intact. Thus, in the opinion of this
office, you should continue to collect the license tax of $500, from those
engaged in the business of selling automobiles and automobile trucks in
the State, and you must likewise collect it to the full amount from those
resident manufacturers who have heretofore paid only $100.
2. There are two reasons why you are not compelled to refund taxes col-lected
by you under the acts of 1917 and 1919:
(a) Taxes paid without protest under a void statute cannot be re-covered
back because they were paid under a mutual mistake of law by both
the payer and the collecting officer, and the law presumes that the payer
knew that the statute was invalid and he could not be coerced into making
payment. Stated shortly, no action lies to recover money voluntarily paid
and the law makes the payment voluntary under these circumstances. That
these payments may not be voluntary, the taxpayer must at the time of
the payment protest against his liability, and enforce his right after said
protest by legal proceedings within the statutory time. Blackwell v. Gas-tonia,
181 N. C, 378.
Ob BIENNIAL REPORT OF THE i^TTORNEY-GENERAI,
(b) A suit against you, under the circumstances, with the amount long
since accounted to the State by you and expended by the State, would, in our
opinion, be a suit against the State.
Yours very truly, James S. Manning,
Attorney-General.
CoRPOEATioN
—
Occupation Tax
July 21, 1921.
Hon. B. R. Lacy, State Treasurer, Raleigh, N. C.
Dear Sib:—In reply to yours of the 20th inst.
It is very clear that the payment of a franchise tax by a corporation,
whether domestic or foreign, does not exempt it from an occupation tax,
Schedule B, of the Revenue Act, in a proper case. If a city or town has
charter authority to levy such tax and is not expressly, or by necessary
implication, prohibited from levying it in the Revenue Act or