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1937 Supplement
TO THE
NORTH CAROLINA CODE
of 1935
Containing All the General Laws of
the 1936 Extra Session and the
1937 Regular Session of the Legislature
COMPLETE ANNOTATIONS
UNDER THE EDITORIAL SUPERVISION OF
A. HEWSON MICHIE
BEIRNE STEDMAN
AND
CHAS. W. SUBLETT
THE MICHIE COMPANY, LAW PUBLISHERS
CHARL6TTESVILLE, va.
1937
Copyright 1937
BY
The Michik Company
Preface
This complete supplement to Michie's North Carolina Code of 1935 contains all
of the general laws enacted at the 1936 extra session, and the 1937 regular session
of the Legislature, and full and comprehensive annotations beginning where the
1935 Code left off and continuing until the date of publication. Amendments
of former laws are inserted under the same section numbers appearing in the 1935
Code. New laws appear under the proper chapter headings. The same standard
of skillful editorial work which contributed to the popularity of the 1935 Code is
maintained throughout this volume. Special attention is directed to the editors'
notes pointing out the changes effected by the Laws of 1936 and 1937. It is be-
lieved that these notes will prove invaluable and will save the lawyer from laborious
comparisons.
The index is confined to references to new laws 'enacted by the Legislature
in its extra session of 1936, and its regular session of 1937.
1937 Supplement to the North Carolina Code of 1935
CHAPTER 1
ADMINISTRATION
Art. 1. Probate Jurisdiction
§ 1. Clerk of superior court has probate juris-
diction.
Collateral Attack.—
A clerk has jurisdiction to appoint an administrator where
the affidavit of the applicant presumes the death of the
decedent from his absence of seven years and the lack of
communication from him. The order and appointment can
only be avoided by showing the person not to be in fact
dead. Chamblee v. Security Nat. Bank, 211 N. C. 48, 188
S. E. 632. See § 28.
Art. 3. Right to Administer
§ 6. Order in which persons entitled.
Right to Renounce and Nominate Another for Appoint-
ment Is Recognized. — There is no express provision requir-
ing the clerk to recognize the right of one belonging to a
preferred class to renounce his right to qualify and at the
same time nominate another for appointment in his stead,
but this construction has been uniformly applied by the
courts and has become firmly embedded in the law of ad-
ministration in North Carolina. In re Estate of Smith, 210
N. C. 622, 624, 188 S. E- 202. See Ritchie v. McAuslin, 2
N. C. 220; Car they v. Webb, 6 N. C. 268; Smith v. Mun-
roe, 23 N. C. 345; Pearce v. Castrix, 53 N. C. 71; Wallis
v. Wallis, 60 N. C. 78; Hughes v. Pipkin, 61 N. C. 4; little
v. Berry, 94 N. C. 433; Williams v. Neville, 108 N. C. 559,
13 S. E. 240; In re Meyers, 113 N. C. 545, 18 S. E. 689;
Boynton v. Heartt, 158 N. C. 488, 74 S. E- 470, Ann. Cas.
1913D, 616; In re Estate of Jones, 177 N. C. 337, 98 S. E-
827.
Nominee of Next of Kin.- — The nominee of deceased's
nearest of kin will be appointed administrator, if a fit and
suitable person, as against those of lesser degree of kin-
ship, provided that no person of the same class as the next
of kin renouncing the right files a personal application for
appointment. In re Estate of Smith, 210 N. C. 622, 188
S. E- 202.
§ 15. Failure to apply as renunciation.
See the note to § 20 in this Supplement.
§ 16. Person named as executor failing to
qualify or renounce.
See the note to § 20 in this Supplement.
Art. 4. Public Administrator
§ 20. When to obtain letters.
Six Months Is Reasonable Time to Apply for Appoint-
ment of Administrator. — Construing this section and §§ 16
and 15, together, the legislative intent is manifest that six
months after the death of testator is a reasonable time
within which application should be made, in proper in-
stances, for appointment of administrator c. t. a. In re
Estate of Smith, 210 N. C. 622, 188 S. E. 202.
Art. 5. Administrator with Will Annexed
§ 22. When letters c. t. a. issue.
Waiver of Right to Appointment. — Where a legatee en-
titled to preferential appointment as administrator c. t. a.,
fails to object to the appointment of an administrator c. t. a.,
but waits until after the death of the administrator ap-
pointed more than a year after testator's death before as-
serting his right and renouncing in favor of a third per-
son, the legatee has waived his right, and his nominee is
not entitled to appointment as against the nominee of the
surviving sisters of testator. In re Estate of Smith, 210
N. C. 622, 188 S. E. 202.
And Right of Nomination and Substitution.— The right
of nomination and substitution is confined to those them-
selves qualified for appointment, and where a legatee has
waived his right to be appointed administrator c. t. a. by
failing to apply within a reasonable time, he also waives
his right of nomination and substitution. In re Estate of
[1
Smith, 210 N. C. 622,
thereto.
S. E. 202. See § 6 and the note
Art. 7. Appointment and Revocation
§ 28. Facts to be shown on applying for ad-
ministration.
Appointment Based on Legal Presumption of Death.—
Upon an affidavit showing that a person had been absent
for over seven years and had not been heard from by
relatives or friends, the fact that at the time of the ap-
pointment it was contemplated that an action should be
brought to determine any question that might arise con-
trary to the legal presumption of death does not invali-
date the appointment or nullify the proof afforded by the
jurisdictional affidavit. Chamblee v. Security Nat. Bank,
211 N. C. 48, 188 S. E. 632. See § 1.
Art. 8. Bonds
§ 33. Bond; approval; condition; penalty.
Cited in Hicks v. Purvis, 208 N. C. 657, 182 S. E. 151.
Art. 9. Notice to Creditors
§ 45. Advertisement for claims.
Cited, in Park View Hospital Ass'n v. Peoples Bank,
etc., Co., 211 N. C. 244, 189 S. E- 766.
Art. 11. Assets
§ 65(a). Payment to clerk of sums not exceed-
ing $300 due and owing intestates. — Where any
person dies intestate and at the time of his or her
death there is a sum of money owing to the said
intestate not in excess of three hundred dollars,
such sum may be paid into the hands of the clerk
of the superior court, whose receipt for same
shall be a full and complete release and discharge
for such debt or debts, and the said clerk of the
superior court is authorized and empowered to
pay out such sum or sums in the following man-
ner: First, for satisfaction of widow's year's al-
lowance, after same has been assigned in ac-
cordance with law, if such be claimed; second,
for payment of funeral expenses, and if there be
any surplus the same to be disposed of as is now
provided by law. This section shall apply to the
counties of Guilford, Edgecombe, Randolph, Cab-
arrus, Iredell, Moore, Anson, Watuaga, Wilson,
Craven, Cumberland, Johnston, Rutherford, Stanly,
Davidson, Currituck, Yadkin, Alexander, Stokes,
Clay, Greene, Wayne, Franklin, Macon, Beaufort,
Swain, Haywood, Caldwell, Burke, Gates, Rock-
ingham, Graham, Person, Catawba, Dare, Tyrrell,
Perquimans, Transylvania, Duplin, Hyde, Pen-
der, Surry, Alamance, Lincoln, Granville, Cho-
wan, Hoke, Lee, Vance, Robeson, Orange, David-
son, Montgomery, Durham, Wake, Mecklenburg,
Harnett, Buncombe, Union, Onslow, Nash, Hali-
fax, Hertford, Pasquotank, McDowell, Rowan,
New Hanover, Warren and Martin. (1921, c. 93;
Ex. Sess. 1921, c. 65; 1924, cc. 15, 58; 1927, c. 7;
1929, cc. 63, 71, 121; 1931, c. 21; 1933, cc. 16, 49;
1935, cc. 69, 96, 367; 1937, cc. 13, 55, 121, 336, 377.)
Editor's Note.— The amendments of 1937 made this section
applicable to Buncombe, New Hanover, Warren, McDowell
and Surry counties. Public E-aws 1937, c. 336, struck out
Forsyth county and enacted special provisions applicable
thereto.
Art. 11 A. Discovery of Assets
§ 65(b). Examination of persons or corporations
believed to have possession of property of dece-
]
§ 65(c)
ADMINISTRATION
§ 74
dent. — Whenever an executor or administrator
makes oath before the clerk of the superior court
of the county where the party to be examined re-
sides or does business that he has reasonable
ground to believe, setting forth the grounds of his
belief, that any person, firm or corporation has in
his or its possession any property of any kind be-
longing to the estate of his decedent, said clerk
shall issue a notice to said person or the member
of the firm or officer, agent or employee of the
firm or corporation designated in the affidavit, to
appear before said clerk at his office at a time fixed
in said notice, not less than three days after the
issuance of said notice, and be examined under
oath by said executor or administrator or his at-
torney concerning the possession of said prop-
erty. If upon such examination the person ex-
amined admits that he or the firm or corporation
for which he works has in his or its possession
any property belonging solely to the decedent,
and fails to show any satisfactory reason for re-
taining possession of said property, the clerk of
the superior court shall issue an order requiring
said person, firm or corporation forthwith to de-
liver said property to said executor or administra-
tor, and may enforce compliance with said order
by an attachment for contempt of court, and com-
mit said person to jail until he shall deliver said
property to said executor or administrator: Pro-
vided, that in the case of a firm or corporation,
whenever any person other than a partner or exec-
utive officer of such firm or corporation is ex-
amined, no such order shall be made until at least
three days after service of notice upon a partner
or executive officer of such firm or corporation to
show cause why such order should not be made.
(1937, c. 209, s. 1.)
Editor's Note. — The purpose of this section is to expe-
dite the settlement of a decedent's estate by permitting
the representative to discover assets of the estate through
and upon the authority of the probate court without hav-
ing to resort, independently, to the rather slow and ex-
pensive proceeding of claim and delivery. However, since
the section seems to provide only for the situation where a
party "admits" that the property held belongs to the de-
cedent's estate and refuses for an inadequate reason to
give it up, it would seem that the representative would still
have to utilize claim and delivery proceedings in the case
where the party in possession of the property denies that
it belongs to the estate of the deceased. It is doubtful
that the section would, by inference, authorize the clerk
to try the title to such property. 15 N. C. Law Rev., No.
4, p. 352.
§ 63(c). Right of appeal. — Any person aggrieved
by the order of the clerk of the superior court
may, within five days, appeal to the judge holding
the next term of the superior court of the county
after said order is made or to the resident judge
of the district, but as a condition precedent to his
appeal he shall give a justified bond in a sum at
least double the value of the property in question,
conditioned upon the safe delivery of the property
and the payment of damages for its detention, to
the executor or administrator in the event that the
order of the clerk should be finally sustained.
When said bond is executed and delivered to the
court no attachment shall be served upon the ap-
pealing party, or, if he has already been com-
mitted, he shall be released pending the final de-
termination of the appeal. If the appellant fails
to have his appeal heard at the next term of the
superior court held in his county, or by the resi-
dent judge of the district, within thirty days after
giving notice of appeal, the clerk of the court may j
[2
recommit the appellant to jail until he shall de-
liver the property to the executor or administra-
tor as aforesaid. (1937, c. 209, s. 2.)
§ 65(d). Costs. — The party against whom the
final judgment is rendered shall be adjudged to
pay the costs of the proceedings hereunder. (1937,
c. 209, s. 3.)
§ 65(e). Remedies supplemental. — The remedies
provided in this article shall not be exclusive, but
shall be in addition to any remedies which are now
or may hereafter be provided. (1937, c. 209, s. 4.)
Art. 13. Sales of Real Property
§ 74. Sales of realty ordered, if personalty in-
sufficient for debts. —
Proceedings for the sale of the real estate of a
decedent brought by his personal representative
to create assets with which to pay debts must be
instituted in the county where the land or some
part thereof lies. If the land to be sold consists of
one or more contiguous tracts lying in more
than one county or consists of two or more sepa-
rate tracts lying in different counties, proceedings
may be instituted in any county in which a part
of the land is situate, and the court of such county
wherein the proceedings for sale are first brought
shall have jurisdiction to proceed to a final dispo-
sition of said proceedings as if all of said land
were situate in the county where the proceedings
were instituted unless the court making the or-
der of sale shall fix some place other than at the
courthouse door of the county in which the pro-
ceeding was instituted; the place and time of sale
shall be as directed in the order of the court.
Where the land to be sold consists of one or more
contiguous tracts lying in more than one county,
said land shall be advertised in all counties in
which any part of said land lies, but the sale shall
be conducted at the courthouse door of the county
in which the proceeding was instituted. Where
the land consists of two or more distinct tracts
lying in different counties, each tract shall be ad-
vertised in and sold at the courthouse door of the
county in which it lies. Certified copies of the
proceedings under the seal of the court of the
county in which the proceedings were instituted,
together with certified copies of the letters testa-
mentary or letters of administration of the per-
sonal representative, shall be filed in the office of
the clerk of superior court of each county where-
in any part of the land lies and shall be recorded
in the record of orders and decrees in special pro-
ceedings in said office. (Rev., s. 68; Code, s. 1436;
1868-9, c. 113, s. 42; 1923, c. 55; 1935, c. 43; 1937,
c. 70.)
Editor's Note.— The 1937 amendment inserted that part of
the second sentence of the second paragraph beginning with
the word "unless." As the first paragraph was not affected
by the amendment it is not set out here.
This amendment would seem to meet the demands of
convenience where the part of the land to be sold is sit-
uated in a county different from that in which the pro-
ceedings to sell were instituted. It is likely that more
interested purchasers will be found in the county where
the land lies. 15 N. C. Law Rev., No. 4, p. 352.
Contents of Petition to Sell Lands. — In proceedings to
sell lands to make assets the petition should set forth,
inter alia, as required by § 79, the value of the personal
estate, as near as may be ascertained, and the applica-
tion thereof, and an allegation merely that the personalty
is insufficient is defective. Neighbors v. Evans, 210 N. C.
550, 187 S. E. 796.
Applied in Odom v. Palmer, 209 N. C. 93, 182 S. E). 741;
Caffey v. Osborne, 210 N. C. 252, 186 S. 3. 364.
]
§ 75
ADMINISTRATION
§ 131
§ 75. When court may order rental.
Where an administrator, in good faith pending the mort-
gaging of property of the estate to pay debts, personally
pays the debts of the estate, he is entitled to be subro-
gated to the rights of the creditors whose debts he had
paid, and upon the execution of the mortgage, upon order
of court, is entitled to repay himself from the proceeds
of the loan. Caffey v. Osborne, 210 N. C. 252, 186 S. E-
364.
§ 76. Lands conveyed by heir within two years
sold.
Mortgage after Two Years Followed by Sale Is Valid.
—Where an heir executed a deed of trust more than two
years after the granting of letters testamentary, and it
was foreclosed, and the purchaser at the sale transferred
title to a bona fide purchaser who had no actual knowledge
that the personal assets were insufficient to pay debts of
the estate, it was held that the fact that it appeared from
the records that the estate had not been settled does not
amount to notice that the personalty was insufficient, and
the purchaser was a bona fide purchaser without notice,
and the land is not subject to sale. Johnson v. Barefoot,
208 N. C. 796, 182 S. E. 471.
§ 79. Contents of petition for sale.
The Purpose of Requisites in Application.—
In accord with original. See Neighbors v. Evans, 210
N. C. 550, 187 S. E- 796.
§ 87. Undevised realty first sold.
Cited in Anderson v. Bridgers, 209 N. C. 456, 184 S. E. 78.
§ 88. Specifically devised realty; contribution.
Cited in Anderson v. Bridgers, 209 N. C. 456, 184 S. E. 78.
Art. 14. Proof and Payment of Debts of
Decedent
§ 93. Order of payment of debts.
Strict Construction. —
In accord with original. See Park View Hospital Ass'n
v. Peoples Bank, etc., Co., 211 N. C. 244, 189 S. E. 766.
Section Construed to Favor Bankruptcy Rule.— Upon the
death of an obligor the administration laws step in and
determine the settlement of his estate. These have hereto-
fore been construed by the supreme court to favor the bank-
ruptcy rule. Thus a secured creditor is required to ex-
haust his security and then prove his claim for any balance
still remaining or unpaid. Rierson v. Hanson, 211 N. C.
203, 205, 189 S. E- 502.
If decedent's estate be not sufficient to pay his debts in
full, then they are to be paid in classes, with those of the
last class, if and when reached, sharing ratably in what is
left. Rigsbee v. Brogden, 209 N. C. 510, 512, 184 S. E- 24,
citing Farmville Oil, etc., Co. v. Bourne, 205 N. C. 337,
171 S. E. 368; First Security Trust Co. v. Lentz, 196 N.
C. 398, 145 S. E. 776; Murchison v. Williams, 71 N. C. 135.
Tax-Sale Certificate Is Not a Preferred Claim.— A tax-
sale certificate in the hands of a remainderman, represent-
ing taxes paid by the remainderman during the lifetime of
the life tenant, may not be proved as a preferred claim
against the estate of the life tenant, since the remainder-
man's sole remedy upon the tax-sale certificate is by fore-
closure under the provisions of § 8028. Rigsbee v. Brogden,
209 N. C. 510, 184 S. E. 24.
Taxes Assessed Are Preferred Claim.— As a life tenant
is liable for taxes assessed against the property during his
lifetime, under § 7982, when he dies without paying the
same they constitute a claim against his estate and are
payable in the third class. Rigsbee v. Brogden, 209 N. C.
510, 184 S. E. 24.
Charges for Water and Gas Connection Are Not a Pre-
ferred Claim as Taxes. — Charges for water and gas connec-
tions, incurred during the lifetime of a life tenant and un-
paid at his death, do not constitute a preferred claim against
his estate as taxes assessed on the estate prior to his death,
since in no event would such charges stand upon a higher
plane than assessments for permanent improvements. Rigs-
bee v. Brogden, 209 N. C. 510, 184 S. E. 24.
Nor Are Assessments for Public Improvements. — See
Rigsbee v. Brogden, 209 N. C. 510, 184 S. E. 24.
The words "medical services," include all services ren-
dered to the deceased, because of his illness, upon the ad-
vice of his physician, which were reasonably necessary for
his care and comfort, and for his proper treatment by his
physicians. Park View Hospital Ass'n v. Peoples Bank,
etc., Co., 211 N. C. 244, 249, 189 S. E- 766.
Board of Nurses Included in Medical Services.— The Board
[3
of graduate nurses who attended the deceased while he was
a patient in plaintiffs' hospital was a claim included in the
term "medical services" as used in this section. Park View
Hospital Ass'n v. Peoples Bank, etc., Co., 211 N. C. 244,
189 S. E- 766.
§ 94. No preference within class.
Stated in Park View Hospital Ass'n v. Peoples Bank,
etc., Co., 211 N. C. 244, 189 S. E. 766.
§ 101. If claim not presented in twelve months,
representative discharged as to assets paid.
Effect of Failure to Present Claim within Twelve Months.
— Under this section a claimant who has not presented his
claim within twelve months from the first publication of the
general notice to creditors, is allowed to assert his demand
only as against undistributed assets of the estate and with-
out cost against the executor. In re Estate of Bost, 211
N. C. 440, 443, 190 S. E. 756.
Cited in Jackson v. Thomas, 211 N. C. 634, 191 S. E. 327.
Art. 15. Accounts and Accounting
§ 105. Annual accounts.
Prima Facie Evidence Only. —
In accord with original. See Braddy v. Pfaff, 210 N. C.
248, 186 S. E. 340.
Recorded Account Is Competent Evidence in Collateral
Suit.— The account required by this section must be re-
corded as required in § 952. Such account therefore is not
hearsay but is competent evidence in a collateral suit.
Braddy v. Pfaff, 210 N. C. 248, 186 S. E. 340.
Duty of Clerk to Accept Executor's Annual Account. —
Where property is devised or bequeathed by a will, upon
certain trusts, and the testator does not appoint a trustee,
it is the duty of the executor, to carry out the provisions
of the will. It is error for the clerk to refuse to accept
an annual account tendered by the executor for a year more
than two years after the executor qualified but during the
life of the trust estate. In re Wachovia Bank, etc., Co.,
210 N. C. 385, 390, 186 S. E. 510. See § 109 and the note
thereto.
§ 108. Gravestones authorized.
Section Inapplicable. — This section was held inapplicable
where executors, in obedience to testamentary instructions,
expended more than $100 for a gravestone without order of
court when the estate appeared to be solvent though in fact
it was insolvent. In re Estate of Bost, 211 N. C. 440, 190
S. E. 756.
§ 109. Final accounts.
When Section Not Applicable. — This statutory require-
ment is not applicable where the duties imposed upon the
executor by the will cannot be fully performed within two
years from his qualification. In re Wachovia Bank, etc.,
Co., 210 N. C. 385, 390, 186 S. E. 510. See § 178.
Review of Order to File Final Account and Turn Over
Assets. — Where the clerk orders an executor to file final
account and turn over the assets of the trust estate to it-
self as trustee, which order is made as a matter of law upon
the facts found and not as a matter of discretion, the or-
der is reviewable by the Superior Court upon appeal. In
re Wachovia Bank, etc., Co., 210 N. C. 385, 186 S. E. 510.
§ 124. Exception to report; final report and
judgment.
Applied in In re Estate of Bost, 211 N. C. 440, 190 S. E-
756.
§ 125. Appeal from judgment; security for costs.
Applied in In re Estate of Bost, 211 N. C. 440, 190 S. E.
756.
§ 130. Contents of judgment; execution.
Under the facts and circumstances of the case a judg-
ment against the estate of the deceased was held irregu-
lar. Hood v. Stewart, 209 N. C. 424, 184 S. E. 36.
§ 131. When judgment to fix with assets.
A judgment against an executor or administrator in his
representative capacity merely establishes the debt sued on
and does not constitute a lien upon the lands of the estate,
in the absence of a stipulation in the judgment to the con-
trary, until leave of court is granted for execution for fail-
ure of the representative to pay the ratable part of such
judgment. Tucker v. Almond, 209 N. C. 333, 183 S. E. 407.
Where a warranty deed was not registered until several
years after the death of the grantor, during which time
§ 132
ATTORNEYS AT LAW
§ 199(a)
several judgments were obtained against the personal rep-
resentative of the grantor, and the grantee in the deed sold
same after the judgments had been docketed to a pur-
chaser for value by warranty deed, it was held that un-
der the provisions of this and §§ 132 and 136 the judg-
ments did not constitute a lien on the land in violation of
the warranty against encumbrances. Id.
Applied in Hood v. Stewart, 209 N. C. 424, 184 S. E. 36.
§ 132. Form and effect of execution.
'See the note to § 131 in this Supplement.
Applied in Hood v. Stewart, 209 N. C. 424, 184 S. E- 36.
§ 135. Suits for accounting at term.
Concurrent Jurisdiction. —
Under this section the distributees of an estate may bring
suit originally in the Superior Court against the adminis-
trator for an accounting and for a breach of his bond.
Leach v. Page, 211 N. C. 622, 191 S. E- 349.
Action to recover for personal services rendered testator's
•wife is properly brought in the Superior Court where it in-
volves a construction of the will and an accounting. Meares
v. Williamson, 209 N. C. 448, 184 S. E. 41.
§ 136. Proceedings against land, if personal as-
sets fail.
Applied in Hood v. Stewart, 209 N. C. 424, 184 S. E. 36.
Art. 16. Distribution
§ 137. Order of distribution.
Applied in Lopez v. United States, 82 F. (2d) 982.
§ 139. Children advanced to render inventory;
effect of refusal.
Expenses for Schooling, etc., Properly Charged as Ad-
vancements.— Intestate's grandchild, a daughter of intes-
tate's deceased daughter, was charged with advancements
for sums paid by intestate for her schooling and expenses
incurred after she was eighteen or twenty years old, but no
charge was made for expenses of rearing the grandchild.
Upon the facts found by the referee the charge of advance-
ments was correct. Wolfe v. Galloway, 211 N. C. 361, 190
S. E. 213.
Art. 18. Action by and against Representative
§ 160. Death by wrongful act; recovery not as-
sets; dying declarations.
I. IN GENERAL.
Applied in Hancock v. Wilson, 211 N. C. 129, 189 S. E-
631; Lemings v. Southern Ry. Co., 211 N. C. 499, 191 S.
E. 39.
Cited in Peterson v. McManus, 208 N. C. 802, 182 S. E.
483; Winslow v. Carolina Conference Ass'n, 211 N. C.
571, 191 S. E- 403.
II. LIMITATION OF THE ACTION.
The fact that an action is not instituted within the lim-
itation prescribed may be taken advantage of by demur-
rer when the dates appear as a matter of record. George
v. Atlanta, etc., Ry. Co., 210 N. C. 58, 185 S. E. 431.
Where it appeared upon the face of the record that
more than one year had elapsed between the accrual of
the cause of action and the filing of the amended com-
plaint, the demurrer of the corporate defendants was prop-
erly sustained, the action against them not having been
instituted within the limitation prescribed by this section.
Id.
§ 166. When creditors may sue on claim; exe-
cution in such action.
See the note to § 131 in this Supplement.
Art. 19. Representative's Powers, Duties and
Liabilities
§ 170. Representative may maintain appropriate
suits and proceedings.
As to discovery of assets, see §§ 65(b)-65(e).
Art. 20. Construction and Application of Chapter
§ 178. Powers under will not affected.
See §§ 105 and 109 and the notes thereto.
CHAPTER 2
ADOPTION OF MINORS
§ 191(1). Petition for adoption and change of
name. — Any proper adult person or husband and
wife, jointly, who have legal residence in North
Carolina may petition the superior court of the
county in which he or they have legal residence
or the county in which the child resides, or of the
county in which the child had legal residence
when it became a public charge, or of the county
in which is located any agency or institution op-
erating under the laws of this state having guard-
ianship and custody of the child, for leave to
adopt a child and for a change of the name of
such child. Provided, that in every instance
where the child is born outside of the state of
North Carolina, said child shall have been an
actual resident of this state for a period of at least
one year. Such petition for adoption shall be filed
in duplicate on standard form to be supplied by
the state board of charities and public welfare,
one form to be held in the files of the said su-
perior court, and the other to be sent to said state
board of charities and public welfare. (1935, c.
243; 1937, c. 422.)
Editor's Note. — The 1937 amendment limited the one year's
residence requirement to children born outside of state.
For a critical analysis and appraisal of this chapter, see
an article appearing in 13 N. C. Taw Rev., No. 4, p. 355.
CHAPTER 2A
AERONAUTICS
Art. 1. Municipal Airports
§ 191(a). Definition.
Cited in Goswick v. Durham, 211 N. C. 687, 191 S. E.
728.
CHAPTER 3
ALIENS
§ 192. Rights as to real property.
Editor's Note. — This section was inadvertently repealed
by P. E. 1935, c. 243. See an article appearing in 13 N. C.
Eaw Rev., No. 4, p. 355.
CHAPTER 4
ATTORNEYS AT LAW
Art. 1. Licenses and Qualifications of Attorney;
Unauthorized Practice of Law
§ 199(a). Corporations and persons other than
members of state bar prohibited from practicing
law; exceptions. — It shall be unlawful for any
corporation or any person or association of per-
sons, except members of the bar of the state of
North Carolina admitted and licensed to practice
as attorneys at law, to appear as attorney or
counsellor-at-law in any action or proceeding in
any court in this state or before any judicial body
or the North Carolina industrial commission or
the unemployment compensation commission;
(1937, c. 155, s. 1.)
Editor's Note. — The 1937 amendment inserted the words "or
the unemployment compensation commission" immediately
preceding the first semicolon in this section. The rest of
the section, not being affected by the amendment, is not set
out here.
This section is constitutional and valid, the right to prac-
tice law being subject to legislative regulation within con-
[4]
§ 199(b)
ATTORNEYS AT LAW
§ 215(11)
stitutional restrictions and limitations, and the statute not
being- in contravention of any provision of the state or
federal constitutions. Seawell v. Carolina Motor Club, 209
N. C. 624, 184 S. E. 540.
The right to practice law is personal and may not be ex-
ercised by a corporation either directly or indirectly by em-
ploying lawyers to practice for it. Seawell v. Carolina Mo-
tor Club, 209 N. C. 624, 184 S. E. 540.
What Is Deemed Practice of Law. — The practice of law
is not limited to the conduct of cases in court, but em-
braces, in its general sense, legal advice and counsel and
the preparation of legal documents and contracts by which
legal rights are secured, although such matter may or may
not be pending in court. Seawell v. Carolina Motor Club,
209 N. C. 624, 184 S. E. 540.
Services of Motor Clubs Held to Violate Section. — Where
defendant corporations, as a part of their services, were
engaged in giving legal advice, in employing attorneys for
members, in allowing lay members of the incorporated club
to write letters on club stationery to persons involved in
accidents with members of the club advising that such
persons were liable in damages in law for negligence in
causing such accidents, and in drawing up receipts stat-
ing that a certain sum was received as settlement of such
damages when collections were made as a result of such
letters, they were held to be engaged in the practice of
law in violation of this section. Seawell v. Carolina Motor
Club, 209 N. C. 624, 184 S. E- 540.
§ 199(b). Further prohibition as to practice of
law by corporation; exception. — It shall be un-
lawful for any corporation to practice or appear
as an attorney for any person other than itself in
any court in this state, or before any judicial
body or the North Carolina industrial commission
or the unemployment compensation commission;
(1937, c. 155, s. 2.)
Editor's Note. — The 1937 amendment inserted the words
"or the unemployment compensation commission" immediately
preceding the first semicolon in this section. The rest of
the section, not being affected by the amendment, is not set
out here.
Art. 6. North Carolina State Bar
§ 215(1). Creation of North Carolina state bar
as an agency of the state.
Quoted in In re Parker, 209 N. C. 693, 184 S. E. 532.
§ 215(3). Government.
Editor's Note.— Public I^aws 1937, c. 51, s. "1, struck out the
former last paragraph of this section providing: "Neither a
councillor nor any officer of the council or of the North
Carolina state bar shall be deemed as such to be a public
officer as that phrase is used in the constitution and laws
o* the state of North Carolina." As no other change was
made the section is not set out here.
For a discussion of the 1937 amendment to this and the
following three sections, see 15 N. C. I*aw Rev., No. 4,
p. 330 et seq.
§ 215(9). Powers of council. — Subject to the
superior authority of the general assembly to
legislate thereon by general laws, and except as
herein otherwise limited, the council is hereby
vested, as an agency of the state, with the con-
trol of the discipline, disbarment and restoration
of attorneys practicing law in this state: Pro-
vided, that from any order suspending an attorney
from the practice of law and from any order dis-
barring an attorney, an appeal shall lie in the
manner hereinafter provided, to the superior court
of the county wherein the attorney involved re-
sides. The council shall have power to administer
this article; to formulate and adopt rules of pro-
fessional ethics and conduct; to publish an official
journal concerning matters of interest to the legal
profession, and to do all such things necessary in
the furtherance of the purposes of this article as
[5
are not prohibited by law. (1933, c. 210, s. 9;
1935, c. 74, s. l; 1937, c. 51, s. 2.)
Editor's Note.— Prior to the 1937 amendment an appeal lay
"as of right" to the regular superior court judge.
§ 215(10)b. Pay of board of law examiners. —
Each member of the board of law examiners shall
receive the sum of fifty dollars for his services in
connection with each examination and shall re-
ceive his actual expenses of travel and subsistence
while engaged in duties assigned to him, provided
that for transportation by the use of private auto-
mobile the expense of travel shall not exceed five
cents per mile. (1935, c. 33, s. 2; 1937, c. 35.)
Editor's Note. — Prior to the 1937 amendment the maximum
for subsistence was four dollars per day. The former ref-
erence to the member of the supreme court was omitted by
the amendment.
§ 215(11). Discipline and disbarment. — The
council or any committee of its members ap-
pointed for that purpose shall have jurisdiction
to hear and determine all complaints, allegations,
or charges of malpractice, corrupt or unprofes-
sional conduct, or the violation of professional
ethics, made against any member of the North
Carolina state bar; may administer the punish-
ments of private reprimand, suspension from the
practice of law for a period not exceeding twelve
months, and disbarment as the case shall in their
judgment warrant, for any of the following
causes: 1. Commission of a criminal offense
showing professional unfitness; 2. Detention with-
out a bona fide claim thereto of property received
or money collected in the capacity of attorney;
3. Soliciting professional business; 4. Conduct
involving willful deceit or fraud or any other un-
professional conduct; 5. Detention without a bona
fide claim thereto of property received or money
collected in any fiduciary capacity; 6. The viola-
tion of any of the canons of ethics which have
been adopted and promulgated by the council of
the North Carolina state bar; may invoke the
processes of the courts in any case in which they
deem it desirable to do so, and shall formulate
rules of procedure governing the trial of any such
person which shall conform as near as may be to
the procedure now provided by law for hearings
before referees in compulsory references. Such
rules shall provide for notice of the nature of the
charges and an opportunity to be heard; for a
complete record of the proceedings for purposes
of appeal to the superior court of the county
wherein the attorney involved resides on the rec-
ord made before the council or the committee as
the case may be. Upon such appeal to the su-
perior court the accused attorney shall have the
right to a trial by jury of the issues of fact aris-
ing on the pleadings, but such trial shall be only
upon the written evidence taken before the trial
committee or council. From the decision of the
superior court the council and the accused attor-
ney shall each have the right of appeal to the su-
preme court of North Carolina. Trial before the
committee appointed for that purpose by the
council shall be held in the county in which the
accused member resides: Provided, however,
that the committee conducting the hearing shall
have power to remove the same to any county in
which the offense, or any part thereof, was com-
mitted, if in the opinion of such committee the
ends of justice or convenience of witnesses require
such removal. The procedure herein provided
§ 215(1&)
BANKS
§ 218(c)
shall also apply in all cases of discipline or disbar-
ments arising under that portion of section eleven
not hereby amended. (1933, c. 210, s. 11; 1937, c.
51, s. 3.) '
Editor's Note.— The 1937 amendment so changed this sec-
tion that a comparison here is not practical.
§ 215(19). Inherent powers of courts unaffected.
— Nothing contained in this article shall be con-
strued as disabling or abridging the inherent pow-
ers of the court to deal with its attorneys. (1937,
c. 51, s. 4.)
CHAPTER 5
BANKS
Art. 2. Creation
§ 217 (p). Fiduciary powers and liabilities of
merged banks or trust companies.
Editor's Note. — A distinction is drawn between "consol-
idation" and "merger." See Braak v. Hobbs, 210 N. C.
379, 186 S. E- 500.
Consolidated Bank Succeeds to Power as Trustee under
Deed of Trust. — A bank, created as a result of a consol-
idation of several state banks, may properly exercise the
power of sale contained in a deed of trust in which one
of its constituent banks was named trustee, upon default
by the trustor, since under this section, the consolidated
bank succeeds to such power. Braak v. Hobbs, 210 N. C.
379, 186 S. E. 500.
This section, although in form an independent statute,
is in reality an amendment of chapter 77, Public Laws of
North Carolina, 1925, and is therefore applicable in the
instant case, although the deed of trust involved was ex-
ecuted prior to its enactment. Braak v. Hobbs, 210 N. C.
379, 384, 186 S. E\ 500. See Bateman v. Sterrett, 201 N.
C. 59, 159 S. E. 14.
Art. 3. Dissolution and Liquidation
§ 218(b). Commissioner of banks may take
charge, when.
Presumption Exists That Bank Complied with Prereq-
uisites before Resuming Operation. — See People's Bank v.
Fidelity, etc., Co., 4 F. Supp. 379, 382.
§ 218(c). Liquidation of banks, when commis-
sioner to take possession.
The Commissioner of Banks Acts in a Capacity Equiva-
lent to a Receiver. — See Hood v. North Carolina Bank, etc.,
Co., 209 N. C. 367, 184 S. E. 51.
And the bank as a legal entity is not dissolved and does
not cease to exist, but its powers are exercised by the com-
missioner (formerly the Corporation Commission) for the
purpose of converting the assets, paying its liabilities, and
distributing the surplus, if any, among the stockholders.
People's Bank v. Fidelity, etc., Co., 4 F. Supp. 379, 383.
No New Cause of Action Is Created Where Commissioner
Is Made a Party to Previous Action by Bank. — See Peo-
ple's Bank v. Fidelity, etc., Co., 4 F. Supp. 379, 383.
An order authorizing the liquidating agent to sell a stock
assessment judgment affects only the liquidating agent and
whoever purchases by virtue thereof, and so far as stock-
holders are concerned, the order is res inter alios acta.
In re Carolina State Bank, 208 N. C. 509, 181 S. E. 621.
An action on a note by the Commissioner of Banks, etc.,
is properly brought in the county in which the insolvent
bank is situate and of which the liquidating agent is a
resident, and defendants' motion for change of venue to
the county of their residence is properly refused. Hood v.
Progressive Stores, 209 N. C. 36, 182 S. E- 694.
Complaint in action to vacate stock assessment failing to
allege plaintiff was not a stockholder at time of bank's
closing, fails to state a cause of action for the relief sought,
and an allegation that there was no certificate of stock
standing in plaintiff's name upon the books of the bank
at the time is insufficient, since plaintiff may be an equi-
table owner of stock and liable to assessment notwith-
standing such fact. Oliver v. Hood, 209 N. C. 291, 183 S. E.
657.
Notice of Appeal from Assessment Must Be Given within
Ten Days of Docketing.— Although no time is fixed by this
section within which a stockholder must give notice of
appeal from the assessment levied against him, the stat-
[6
ute provides that when the assessment is docketed it shall
have the force and effect of a judgment, therefore under §
641 notice of appeal from such assessment must be given
within ten days after the docketing of the assessment, and
when notice of appeal is not given within the time required
and no application for certiorari made, the stockholder
loses his right to appeal and the assessment is final and
conclusive. In re Citizens' Bank, 209 N. C. 216, 183 S. E-
410.
If right to appeal is lost, stockholder may apply for a
writ of certiorari. In a proper case he will be granted the
writ, and thereby be assured a hearing in the Superior
Court on his contention that the assessment was illegal.
In re Citizens' Bank, 209 N. C. 216, 219, 183 S. E. 410.
The manifest purpose of subdivision (14) is to place the
out of town holder of a check or draft on a footing as fa-
vorable as the one occupied by the local depositor. The
local depositor can present his check and get the cash. If
the bank collects the out of town check or draft received
through the mails by charging it to the account of its
customer, it is the bank's duty, under this statute, to remit
the proceeds to the owner, and the owner has a lien thereon.
The proceeds of the collection rightfully belong to the
owner of the draft; thereafter they are not the property of
the bank, and the general creditors have no right to par-
ticipate therein. Royal Mfg. Co. v. Spradlin, 6 F. Supp.
98, 100.
This subdivision clearly supersedes the law as declared
by the supreme court in Corporation Comm. v. Merchant's,
etc., Bank, 137 N. C. 697, 50 S. E- 308, and similar deci-
sions. The statute embodies what was declared to be the
law by the United States Supreme Court in Dakin v. Bayly,
290 U. S. 143, 54 S. Ct. 113, 78 E. Ed. 229, 90 A. E. R.
999, where it was held that the forwarding bank of a draft
for collection is nothing but the agent of the drawer, and
that this agency continues until the proceeds are remitted,
and that the forwarding bank is not a creditor of the col-
lecting bank and for this reason cannot offset such items
against its debt to the collecting bank. Id.
It Is Applicable to National Banks.— See Royal Mfg. Co.
v. Spradlin, 6 F. Supp. 98.
The lien provided in subdivision (14) is in no wise con-
tingent upon the insolvency of the bank. It attaches, in
all cases, "from the date of the charge, entry or collection
of any such funds." The lien exists before insolvency and
subsequent insolvency does not invalidate it. Royal Mfg.
Co. v. Spradlin, 6 F. Supp. 98, 101.
The proviso in subdivision (14) does not create a pref-
erence; it creates a statutory lien. The legislature used the
word "preference" everywhere in the act preceding the pro-
viso, but it used the word "lien" advisedly and to make it
apply without regard to preferences. Id.
Upon collection, the agency relation ceases, in the ab-
sence of agreement to the contrary, and the position of the
bank from then on is that of a mere debtor. Citizens Nat.
Bank v. Fidelity, etc., Co., 86 F. (2d) 4, 6, citing Jennings
v. United States Fidelity, etc., Co., 294 U. S. 216, 55 S. Ct.
394, 395, 79 E. Ed. 869, 99 A. E- R. 1248.
Where a certificate of deposit sent to the insolvent col-
lecting bank was used in clearance, a draft for the bal-
ance on the clearance transaction being received by the in-
solvent collecting bank, it was held that a debtor and cred-
itor relationship arose and that the creditor's successor was
not entitled to preference. Citizens Nat. Bank v. Fidelity,
etc., Co., 86 F. (2d) 4.
It makes no difference that, instead of collecting cash on
the certificate of deposit, the collecting bank used it in a
clearance and received a draft for the balance due upon
the clearance, which was ultimately collected in cash. If
a bank accepts anything other than cash in payment of a
negotiable instrument which it holds for collection, it be-
comes, under the rules of the common law, liable as a
debtor for the amount of the instrument, the reason for
the rule being that, as the instrument is payable only in
cash, the collecting bank by accepting something other
than cash assumes the risk incident to such method of
collection and is estopped to deny payment. Citizens Nat.
Bank v. Fidelity, etc., Co., 86 F. (2d) 4, 6, citing Cleve
v. Craven Chemical Co., 18 F. (2d) 711, 713, 52 A. E R.
980; Federal Reserve Bank v. Malloy, 264 U. S. 160, 44
S. Ct. 296, 68 E. Ed. 617, 31 A. E R. 1261.
The agency to collect is coupled with an authority in the
collecting bank to use the proceeds for its own purposes;
and where the collecting bank, in accordance with the usual
custom of the banking business, makes a collection in what
it chooses to accept as money's worth and thereupon be-
comes in law liable as a debtor for the amount of the col-
lection, there is no reason to hold that the trust relationship
is extended beyond such collection. Citizens Nat. Bank v.
Fidelity, etc., Co., 86 F. (2d) 4, 6.
]
§ 219(a)
BANKS
§ 219(d)
Commissioner's Report under Subdivision (18) Bars Suit
to Enforce Statutory Liability of Stockholder.— Where all
the debts of the old bank have been discharged and there
are no creditors, as evidenced by the report of the com-
missioner of banks under subdivision (18), it is obvious
that suit cannot afterwards be maintained to enforce the
statutory liability of an alleged stockholder in that bank.
Hood v. Richardson Realty, 211 N. C. 582, 588, 191 S. E.
410.
Applied, as to subd. (13), in In re Carolina State Bank,
208 N. C. 509, 181 S'. E. 621; as to subd's (10), (11), in
Hood v. Elder Motor Co., 209 N. C. 303, 183 S. E. 529;
as to subd. (13), in Hood v. Hewitt, 209 N. C. 810, 185 S.
E. 161.
Cited in In re United Bank, etc., Co., 209 N. C. 389, 184
S. E. 64; Hood v. Clark, 211 N. C. 693, 191 S. E- 732.
Art. 4. Stockholders
§ 219(a). Stockholders, individual liability of.
Liability Contractual.—
In accord with original. See Hood v. Richardson Realty,
211 N. C. 582, 191 S. E. 410.
Statutory Liability Is for Benefit of Depositors and Other
Creditors,— The statutory liability imposed upon stockhold-
ers of an insolvent bank is created, not for the benefit of
the bank, but for the benefit of depositors and other cred-
itors, and constitutes a fund in the nature of a trust fund
in the sense that it should be maintained intact and be
available upon insolvency for equitable distribution among
all creditors. Hood v. North Carolina Bank, etc., Co., 209
N. C. 367, 184 S. E. 51. See also, Hood v. Richardson
Realty, 211 N. C. 582, 588, 191 S. E. 410, citing Hill v.
Smathers, 173 N. C. 642, 92 S. E. 607; Hood v. Martin, 203
N. C. 620, 166 S. E. 793; Cook on Stock & Stockholders,
§ 218.
It Can Not Be Regarded as an Assignable Chose in Ac-
tion.—As the stockholder's liability is fixed by this section
and is imposed solely for the benefit of the creditors of the
bank in which the stock is held, it cannot be regarded as
an assignable chose in action, ordinarily entitling the assignee
to sue for its enforcement. Nor would it pass under the
general designation of assets. Hood v. Richardson Realty,
211 N. C. 582, 588, 191 S. E. 410.
A bank, in consideration of discharging all debts of an
insolvent bank, took over all its assets, including the statu-
tory liability of the stockholders of the insolvent bank.
This transaction amounted to a sale and purchase and all
debts of the insolvent bank being discharged, the stat-
utory liability of its stockholders, upon which no assess-
ment had been made nor judgment docketed, could no
longer be enforced, and the transferee bank may not com-
plain that some of the assets so bought were worthless, or
maintain the position of creditor of the insolvent bank for
the purpose of enforcing the statutory liability of its stock-
holders in the absence of a contract of guaranty, or under-
taking to repay, or facts sufficient to raise the equity of
subrogation. Id.
Stockholders Can Not Be Relieved of Liability to Preju-
dice of Creditors.— The principle that a corporation cannot
relieve a stockholder of liability for the balance due on un-
paid stock to the prejudice of creditors of the corporation
applies to the statutory liability of bank stockholders.
Hood v. North Carolina Bank, etc., Co., 209 N. C. 367, 184
S. E. 51.
Assignee of Judgment against Executor for Assessment
Is Not Entitled to Set Up Personal Liability of Executor.
— Plaintiff assignee of a judgment against an executor in
his representative capacity for a stock assessment made
on shares of stock of a bank in liquidation, sought by sub-
sequent proceedings to charge the executor personally with
liability upon allegations that the executor personally owned
the bank stock, legally or equitably. The mere assignment
of the judgment, without more, was held to transfer only
the rights of the assignor of the judgment in his status of
judgment creditor and not his personal rights not incident
to such status, and plaintiff was not entitled to set up the
personal liability of the executor. Jones v. Franklin's Es-
tate, 209 N. C. 585, 183 S. E- 732.
The amendment of 1935 abolished the statutory double
liability of stockholders in the banks of this state, and it
is made applicable to all shares of stock, issued or to be is-
sued. Hood v. Richardson Realty, 211 N. C. 582, 590, 191
S. E. 410.
Where since the levy of the assessment the holders of
bank stock have been relieved of their double liability by
this section, unless the defendants were rendered liable
by the prior original assessment, they cannot now be made
liable therefor. Fidelity Security Co. v. Hight, 211 N. C.
117, 118, 189 S. E. 174.
Constitutionality of Amendment.— As between a stock-
holder and one who was a depositor or creditor of a bank
prior to the amendment of 1935, the statute, which prescribes
that the stockholder's liability shall cease with respect to
shares which had theretofore been issued, would seem to
offend the constitutional provision of Art. I, sec. 10, of the
Constitution of the United States prohibiting the passage of
an act impairing the obligation of a contract. But where
no rights had vested, and where neither assessment had
been levied nor judgment rendered against the stockholder
prior to the passage of the Act of 1935, it would seem that
the act would avail in the present suit. Hood v. Richard-
son Realty, 211 N. C. 582, 590, 191 S. E. 410.
Applied in In re Citizen's Bank, 209 N. C. 216, 183 S. E-
410; In re United Bank, etc., Co., 209 N. C. 389, 184 S. E-
64; Hood v. Hewitt, 209 N. C. 810, 185 S. E. 161.
§ 219(c). Eixecutors, trustees, etc., not person-
ally liable.
Assignee of Judgment for Stock Assessment against Ex-
ecutor Is Not Entitled to Set Up Personal Liability of Ex-
ecutor.— Plaintiff assignee of a judgment against an execu-
tor in his representative capacity for a stock assessment
made on shares of stock of a bank in liquidation, sought
by subsequent proceedings to charge the executor person-
ally with liability upon allegations that the executor per-
sonally owned the bank stock, legally or equitably. The
mere assignment of the judgment, without more, was held
to transfer only the rights of the assignor of the judg-
ment in his status of judgment creditor and not his personal
rights not incident to such status, and plaintiff was not
entitled to set up the personal liability of the executor.
Jones v. Franklin's Estate, 209 N. C. 585, 183 S. E. 792.
Liability Attaches to Estate or Funds in Hands of Trus-
tees, etc. — By this provision an administrator, executor,
guardian, or trustee is not personally liable for the statutory
liability on bank stock held in their representative capaci-
ties, but such liability attaches to the estate or funds in
their hands. Hood v. North Carolina Bank, etc., Co., 209
N. C. 367, 184 S. E. 51.
And where a trustee breached its duty in failing to sell
bank stock for reinvestment, its wrongful act will not re-
lieve the estate of the statutory liability to the prejudice
of depositors and creditors of the bank. Id.
A trust estate is liable for assessment on bank stock
owned regardless of the method by which the trust is es-
tablished, and where shares of bank stock appear on the
books of the bank in the name of "executors," the statu-
tory liability thereon of the estate may not be defeated by
showing that the stock was held by the executors as ex-
ecutors and trustees under the will for the benefit of minor
ulterior beneficiaries, the beneficiaries of the income from
the trust estate being of age, and there being nothing on
the books of the bank to disclose the trusteeship. Hood
v. North Carolina Bank, etc., Co., 209 N. C. 367, 184 S.
E. 51.
Liability of Bank Trustee to Trust Estate Can Not Be
Set Up as Counterclaim against Liability of Estate. — The
liability of a bank trustee to the trust estate for its neg-
ligent failure to sell for reinvestment shares of stock of the
bank belonging to the trust estate cannot be set up as a
counterclaim or set-off against the statutory liability of the
estate upon the insolvency of the bank. In re United Bank,
etc., Co., 209 N. C. 389, 184 S. E- 64.
§ 219(d). Transferrer not liable, when.
This section exempts those who in good faith transfer
stock to any person of full age. Hood v. North Carolina
Bank, etc., Co., 209 N. C. 367, 378, 184 S. E- 51.
The question of intent and good faith must be determined
by the surrounding circumstances. The fact that the de-
fendant transferred his stock to his insolvent son without
consideration, and that this was done six days after the
only other commercial bank in the city had failed and been
taken over for liquidation by the Commissioner of Banks,
would constitute some evidence bearing on the question of
the purpose of the transfer and be susceptible of the rea-
sonable inference that it was done in order to evade lia-
bility on the stock. Hood v. Clark, 211 N. C. 693, 694, 191
S. E. 732.
Word "Suspension" Refers to Stockholders' Liability.—
While the word "suspension" is ordinarily defined as a
"temporary stop," a "temporary delay, interruption, or
cessation," and as to commercial institutions, sometimes,
"business failure," yet taken in the connection in which it
is used in this section, the reference is to bank stockhold-
ers' liability and to the proceedings to enforce it. Hood
v. Clark, 211 N. C. 693, 694 191 S. E. 732.
[7]
§ 220(a)
BANKS
§ 220(b)
Art. 5. Powers and Duties
§ 220(a). General powers. —
6. Any commercial bank, savings bank, or trust
company, heretofore or hereafter organized under
any general or special laws of this state and any
national bank doing business in this state, shall
have power, in addition to such other powers as
it may have:
(a) Upon the making of a loan or discount, to
deduct in advance, from the proceeds of such loan,
interest at a rate not exceeding six per centum
(6%) per annum upon the amount of the loan from
the date thereof until the maturity of the final in-
stallment, notwithstanding that the principal
amount of such loan is required to be repaid in
installments: Provided, no loan made under the
provisions of this section shall exceed fifteen hun-
dred ($1,500.00) dollars to any one person, firm,
partnership, or corporation.
(b) Nothing in this section shall be construed
as in any wise extending or increasing or decreas-
ing the powers of commercial banks, savings
banks, or trust companies or national banks to
make loans or discount notes other than as here-
in or by other laws expressly provided. (1921, c.
4, s. 26; 1923, c. 148, s. 5; 1924, c. 67; 1925, c. 279;
1927, c. 47, s. 5; 1931, e. 243, s. 5; 1933, c. 303; 1935,
c. 81, s. 1, c. 82; 1937, c. 154.)
Editor's Note.— The 1937 amendment, directing that the
above subsection be added to this section, repeals any pro-
visions of § 225(a), or any other laws, in conflict therewith.
The rest of the section, not being affected by the amend-
ment, is not set out.
§ 220(a) 1. Banks, fiduciaries, etc., may invest
in bonds guaranteed by United States —
(3) Bonds Deemed Cash in Settlements by
Fiduciaries. — In settlements by guardians, execu-
tors, administrators, trustees and others acting in
a fiduciary capacity, the bonds and securities here-
in mentioned shall be deemed cash to the amount
actually paid for same, including the premium, if
any, paid for such bonds, and may be paid as such
by the transfer thereof to the persons entitled and
without any liability for a greater rate of interest
than the amount actually accruing from such
bonds. (1935, c. 164; 1937, c. 433.)
Editor's Note. — The 1937 amendment struck- out the words
"not exceeding par value thereof" formerly appearing in
subsection (3) of this section. The rest of the section, not
being affected by the amendment, is not set out here.
For an analysis of this section, see 13 N. C. I/aw Rev.,
No. 4, p. 362.
§ 220(a) 2. Banks, fiduciaries, etc., authorized
to invest in mortgages of federal housing admin-
istration, etc. — (1) Insured Mortgages and Obli-
gations of National Mortgage Associations. — It
shall be lawful for all commercial and industrial
banks, trust companies, building and loan associa-
tions, insurance companies, and other financial in-
stitutions engaged in business in this state, and for
guardians, executors, administrators, trustees or
others acting in a fiduciary capacity in this state
to invest, to the same extent that such funds may
be invested in interest-bearing obligations of the
United States, their funds or the moneys in their
custody or possession which are eligible for in-
vestment, in bonds or notes secured by a mort-
gage or deed of trust insured by the federal hous-
ing administrator, in mortgages on real estate
which have been accepted for insurance by the
federal housing administrator, and in obligation
of national mortgage associations.
[
(2) Insured Loans. — • All such banks, trust
companies, building and loan associations and in-
surance companies, and other financial institutions,
and also all such guardians, executors, administra-
tors, trustees or others acting in a fiduciary ca-
pacity in this state, may make such loans, secured
by real estate, as the federal housing administra-
tor has insured or has made a commitment to in-
sure, and may obtain such insurance.
(3) Eligibility for Credit Insurance. — All banks,
trust companies, building and loan associations,
insurance companies and other financial institu-
tions, on being approved as eligible for credit in-
surance by the federal housing administrator, may
make such loans as are insured by the federal
housing administrator.
(4) Certain Securities Made Eligible for Col-
lateral, etc. — Wherever, by statute of this state,
collateral is required as security for the deposit of
public or other funds; or deposits are required to
be made with any public official or department;
or an investment of capital or surplus, or a re-
serve or other fund, is required to be maintained,
consisting of designated securities, bonds, and
notes secured by a mortgage or deed of trust in-
sured by the federal housing administrator, de-
bentures issued by the federal housing administra-
tor and obligations of national mortgage associa-
tions shall be eligible for such purposes.
(5) General Laws Not Applicable. — No law of
this state prescribing the nature, amount or form
of security or requiring security upon which loans
or investments may be made, or prescribing or
limiting the rates or time of payment of the inter-
est any obligation may bear, or prescribing or
limiting the period for which loans or investments
may be made, shall be deemed to apply to loans
or investments made pursuant to the foregoing
paragraphs. (1935, cc. 71, 378; 1937, c. 333.)
Editor's Note. — The 1937 amendment made this section ap-
plicable to building and loan associations, and made other
changes.
§ 220(b). Limitations on investments or secu-
rities.— The investment of any bonds or other in-
terest-bearing securities of any one firm, individ-
ual or corporation, unless it be the interest-bear-
ing obligations of the United States, obligations
issued under authority of the Federal Farm Loan
Act, as amended, or issued by the Federal Home
Loan Banks, or the Home Owners' Loan Corpora-
tion, state of North Carolina, or other state of the
United States, or of some city, town, township,
county school district, or other political subdivi-
sion of the state of North Carolina, shall at no
time be more than twenty per cent of the unim-
paired capital and permanent surplus of any bank
to an amount not in excess of two hundred and
fifty thousand dollars; and not more than ten per
cent of the unimpaired capital and permanent sur-
plus in excess of two hundred and fifty thousand
dollars: Provided, that nothing in this section
shall be construed to compel any bank to surrender
or dispose of any investment in the stock or bonds
of a corporation owning the lands or buildings oc-
cupied by such bank as its banking home, if such
stocks or bonds were lawfully acquired prior to
the ratification of this act. (1921, c. 4, s. 27; 1927,
c. 47, s. 6; 1931, c. 243, s. 5; 1933, c. 359; 1935, c.
199; 1937, c. 186.)
Editor's Note. — The 1937 amendment inserted the words
"obligations issued under authority of the Federal Farm
]
§ 220(d)
BASTARDY
§ 276(0
Loan Act, as amended, or issued by the Federal Home Loan
Banks, or the Home Owners' Loan Corporation."
§ 220(d). Loans, limitations of. —
Provided further, that the limitations of this
section shall not apply to that portion of a loan or
investment secured by a guarantee or a commit-
ment made by the reconstruction finance corpora-
tion or by the federal reserve bank, or by them
jointly. (1921, c. 4, s. 29; 1923, c. 148, s. 6; 1925,
e. 119, s. 1; 1927, c. 47, s. 7; 1937, c. 419.)
Editor's Note.— The 1937 amendment directed that the above
proviso be added at the end of this section. The rest of the
section, not being affected by the amendment, is not set out
here.
§ 220(h). Forged check, payment of.
Receipt of Statement by Bookkeeper Who Forged Checks
Is Receipt by Corporation.— The receipt of a corporation's
bank statement by its bookkeeper is receipt of the state-
ment by the corporation, and it may not recover against
the bank for the payment of forged checks when notice is
not given within sixty days after such receipt of the bank
statement, even though the checks were forged by the
bookkeeper, who destroyed them after he received the can-
celed checks from the bank. Greensboro Ice, etc., Co. v.
Security Nat. Bank, 210 N. C. 244, 186 S. E. 362.
§ 220(m). Nonpayment of check in error, lia-
bility for.
A bank wrongfully and unlawfully refusing to pay a
check breaches its contract and the depositor is entitled
to nominal damages at least. Thomas v. American Trust
Co., 208 N. C. 653, 182 S. E. 136.
Charge on Injury to Credit and Reputation Not Sup-
ported by Evidence Is Error. — In an action to recover for
the wrongful and unlawful refusal by a bank to pay a
depositor's check, it is error for the court to charge the
jury on the issue of damage that it should consider the
evidence of damage sustained by plaintiff through injury
to his credit and reputation in the community resulting
from the bank's wrongful act when there is no evidence
that plaintiff's credit or reputation had been injured
thereby. Thomas v. American Trust Co., 208 N. C. 653,
182 S. F. 136.
§ 220(r). Establishment of branches.
For a comment on the last proviso of this section, see
13 N. C. Law Rev., No. 4, p. 360.
§ 220 (aa). Checks payable in exchange.
This section has no application to certificates of de-
posit. Citizens Nat. Bank v. Fidelity, etc., Co., 86 F.
(2d) 4, 7.
§ 2ft0(gg). Governor empowered to proclaim
banking holidays.
Cited in Hood v. Clark, 211 N. C. 693, 191 S. E. 732.
Art. 8. Bank Examiners
§ 223(e). Examiners may make arrest.
For article discussing arrest without a warrant, see 15
N. C. Law Rev., No. 2, p. 101.
Art. 10. Industrial Banks
§ 225(a). Industrial bank defined.
See note under § 220(a).
§ 225(g). Restriction on powers. — No indus-
trial bank shall deposit any of its funds in any
banking corporation unless such corporation has
been designated as such depositary by a vote of a
majority of the directors, or of the executive com-
mittee, exclusive of any director who is an offi-
cer, director, or trustee of the depositary, so des-
ignated, present at any meeting duly called at
which a quorum is in attendance, and approved by
the commissioner of banks. (1923, c. 225, s. 7;
1931, c. 243, s. 5; 1937, c. 220.)
Editor's Note. — The 1937 amendment struck out the former
provision prohibiting loans for longer than one year.
[
§ 225 (o). Stockholders, individual liability of.
See the note to § 219(a) in this Supplement.
In General. —
This section is applicable, notwithstanding the shares of
stock owned are fully paid and nonassessable by the cor-
poration. The section does not affect, or purport to af-
fect, the contract between the corporation and its stock-
holders with respect to the shares of its stock owned by
its stockholder. The liability imposed by it is for the
benefit of creditors and not for the benefit of the corpora-
tion itself. The effect of the section is to impose upon
every stockholder of an industrial banking corporation, or-
ganized and doing business under the laws of this state,
a statutory liability to all persons who shall become cred-
itors of the corporation, after its enactment. Hood v Hew-
itt, 209 N. C. 810, 815, 185 S. F. 161.
This section as construed is constitutional. Hood v. Hew-
itt, 209 N. C. 810, 185 S. E. 161. See also, Smathers v.
Western Carolina Bank, 135 N. C. 410, 47 S. F- 893, wherein
a similar construction of § 219(a) was held constitutional.
CHAPTER 6
BASTARDY
§ 276(a). Non-support of bastard child by par-
ents made misdemeanor. — Any parent who will-
fully neglects or who refuses to support and main-
tain his or her illegitimate child shall be guilty of
a misdemeanor and subject to such penalties as are
hereinafter provided. A child within the meaning
of sections 276 (a) -276 (i) shall be any person less
than fourteen years of age and any person whom
either parent might be required under the laws of
North Carolina to support and maintain if such
child were the legitimate child of such parent.
(1933, c. 228, s. 1; 1937, c. 432, s. 1.)
Editor's Note. — Prior to the 1937 amendment the age speci-
fied was ten years.
Constitutionality. — This section does not violate due proc-
ess of law or impose imprisonment but by the law of the
land. State v. S'pillman, 210 N. C. 271, 186 S. E- 322.
The willfulness of the neglect is an essential ingredient
of the offense, and as such must not only be charged in the
bill, but must be proved beyond a reasonable doubt. State
v. Spillman, 210 N. C. 271, 272, 186 S. E. 322.
State Must Prove Paternity of Child and Willful Neg-
lect.—It is not necessary that defendant's paternity of the
child should be first judicially determined, but the state
must prove on the trial, first, defendant's paternity of the
child, and then his willful neglect or refusal to support the
child. State v. Spillman, 210 N. C. 271, 186 S. E. 322.
Since the statute raises no presumption against a person
accused, the failure to support being evidence of willful-
ness, but raising no presumption thereof, but to the con-
trary, the statute requires the state to overcome the pre-
sumption of innocence both as to the willfulness of the
neglect to support the illegitimate child and defendant's
paternity of the child. State v. Spillman, 210 N. C. 271,
186 S. E. 322.
Offense Punishable after Effective Date of Section Al-
though Child Born before. — A parent may be prosecuted
under this section for willful failure to support his illegit-
imate child begotten and born before the effective date of
the statute, the offense being the willful failure to support
an illegitimate child, and it being sufficient if such willful
failure occur after the effective date of the statute. State
v. Parker, 209 N. C. 32, 182 S. E. 723.
Defective Warrant.— Where the warrant fails to charge
that defendant's failure to support his illegitimate child was
willful, defendant's motion in arrest of judgment should be
allowed. State v. Tarleton, 208 N. C. 734, 182 S. E- 481.
Applied in State v. Moore, 209 N. C. 44, 182 S'. E. 692.
§ 276(f). Jurisdiction of inferior courts; issues
and orders. — Proceedings under this act shall be
instituted only in the superior court of any county
of this state and in any county recorder's court,
any city recorder's court or municipal court.
The court before which the matter may be
brought shall determine whether or not the de-
fendant is a parent of the child on whose behalf
the proceeding is instituted. After this matter has
]
§ 323(b)
CITIZENSHIP RESTORED
§ 390(1)
been determined in the affirmative the court shall
proceed to determine the issue as to whether or
not the defendant has neglected or refused to sup-
port and maintain the child who is the subject of
the proceeding. After this matter shall have been
determined in the affirmative the court shall fix by
order, subject to modification or increase from
time to time, a specific sum of money necessary
for the support and maintenance of the particular
child who is the object of the proceedings. The
court in fixing this sum shall take into account the
circumstances of the case, the financial ability to
pay and earning^ capacity of the defendant, and
his or her willingness to cooperate for the wel-
fare of the child. The order fixing the sum shall
require the defendant to pay it either as a lump
sum or in periodic payments as the circumstances
of the case may appear to the court to require.
Compliance by the defendant with any or all of
the further provisions of this act or the order or
orders of the court requiring additional acts to be
performed by the defendant shall not be con-
strued to relieve the defendant of his or her re-
sponsibility to pay the sum fixed or any modifica-
tion or increase thereof. (1933, c. 228, s. 6; 1937,
c. 432, s. 2.)
Editor's Note.— The 1937 amendment directed that the first
paragraph above be inserted in lieu of this section. How-
ever, as it seems apparent that it was not the legislative in-
tent to repeal the second paragraph, it is also set out here.
The possibility of imposing a sentence of imprisonment in
excess of thirty days was thought by some to exclude the
jurisdiction of justices of the peace, but in many instances
they did exercise jurisdiction. The amendment clearly ex-
cludes justices. 15 N. C. Law Rev., No. 4, p. 347.
Acquittal on Charge of Non- Support Bars Appeal Involv-
ing Issue of Parentage.— Where the jury found the defend-
ant to be the father of the bastard child, but not guilty of
non- support, this is an acquittal. The defendant therefore
is not entitled to an appeal under § 4650 for the refusal of
the court to allow his motions that the action be dismissed,
and that the answer to the issue of parentage be set aside.
State v. Hiatt, 211 N. C. 116, 189 S. E. 124.
CHAPTER 8
BONDS
Art. l. Official Bonds
§ 323(b). Members of highway patrol and all
other peace officers, required to give bond. — The
state of North Carolina shall require of each
member of the highway patrol and of every other
peace officer employed by the state, elected or
appointed, to give a bond with good security pay-
able to the state of North Carolina, in a sum not
less than one thousand ($1,000.00) dollars and not
more than two thousand five hundred ($2,500.00)
dollars, conditioned as well for the faithful dis-
charge of his or her duty as such patrolman or
other peace officer as for his diligently endeavor-
ing to faithfully collect and pay over all sums of
money received. Said bond shall be duly ap-
proved and filed in the office of the insurance
commissioner, and certified copies of the same by
the insurance commissioner shall be received and
read in evidence in all actions and proceedings
where the original might be. (1937, c. 339, s. 1.)
See § 4530(1).
§ 326(a). Payment of premiums on official
bonds. — In all cases where the officers or any of
them named in section three hundred twenty-
six are required to give a bond, and the said of-
ficer or officers are paid by a set or fixed salary,
the county commissioners of the county in which
said officer or officers are elected are authorized
and empowered to pay the premiums on the
bonds of any and all such officer or officers. (1937,
c. 440.)
Art. 4. Actions on Bonds
§ 354. On official bonds injured party sues in
name of state; successive suits.
Applied in Bank of Spruce Pine v. McKinney, 209 N. C.
668, 184 S. E. 506.
§ 356. Summary remedy on official bond.
See the note to the next succeeding section.
§ 357. Officer unlawfully detaining money lia-
ble for damages.
This section must be considered in connection with the
preceding section. Pasquotank County v. Hood, 209 N. C.
552, 554, 184 S. E. 5.
This and Preceding Section Are Not Applicable to Liq-
uidation of Banks by Commissioner of Banks. — This and
the preceding section are inapplicable to impose liability for
damages in a case where the Commissioner of Banks took
over the affairs of a bank which had been theretofore con-
stituted the financial agent of the county and which had
county funds on deposit and in its possession. Pasquotank
County v. Hood, 209 N. C. 552, 555, 184 S. E. 5.
The Commissioner of Banks holding a portion of the fund,
subject to the orders of the court and for the purpose of
liquidation, could not be said to constitute an "unlawful
detention," nor should he in his representative capacity be
liable in damages as a penalty for so doing. The punish-
ment would not fall upon a defaulting or delinquent pub-
lic officer, as intended by the statute, but would penalize
funds held in trust for all the creditors and stockholders
whose stock assessments have helped to contribute. Id.
CHAPTER 9
BOUNDARIES
§ 361. Special proceeding to establish.
Procedure. — As the procedure for the application of this
section is that prescribed in § 363, subsec. 4, it is compe-
tent for the defendant under §§ 457 and 758 to plead the
equitable relief of mutual mistake, having the cause trans-
ferred to the civil issue docket, and having the common
grantor of the plaintiff and defendant made a party de-
fendant. Smith v. Johnson, 209 N. C. 729, 184 S. £. 486.
§ 362. Occupation sufficient ownership.
Sufficiency of Ownership — When Title Not in Dispute. —
Where it is admitted that plaintiff's title was not in dis-
pute, and that defendant's title was not in dispute except
as to the true boundary line, the refusal of the court to
submit an issue as to plaintiff's title, in addition to the is-
sue as to the true boundary line, will not be held for er-
ror. Clark v. Dill, 208 N. C. 421, 181 S. E. 281.
V
CHAPTER 11
CITIZENSHIP RESTORED
§ 390(1). Restoration of rights of citizenship
to persons committed to certain training schools.
— Any person convicted of any crime whereby
any rights of citizenship are forfeited, and the
judgment of the court pronounced provides a
sentence, and such sentence is suspended upon
the condition that such person be admitted to
and remain at one of the following schools: East-
ern Carolina Industrial Training School for Boys,
the Stonewall Jackson Manual Training and In-
dustrial School, the Morrison Training School
for Negro Boys, or the State Home and In-
dustrial School for Girls, until lawfully dis-
charged, and upon payment of costs, such person
may be restored to such forfeited rights of citi-
[10]
§ 390(2)
CIVIL PROCEDURE
§ 440
zenship upon application and petition to the judge
presiding at any term of the superior court held
in the county in which the conviction was had, at
any time after one year from the date of the law-
ful discharge from any such school. (1937, c. 384,
s. 1.)
§ 390(2). Contents of petition; affidavits of rep-
utable citizens; hearing; decree of restoration. —
The petition provided for in section 390(1) shall
set out the nature of the crime committed, the
time of conviction, the judgment of the court, and
shall recite that the costs of suit have been paid,
the lawful discharge of the applicant from the
school to which he or she was admitted, and that
applicant has never before had restored to him
lost rights of citizenship, which petition shall be
verified by the oath of the applicant, and accom-
panied by the affidavits of ten reputable citizens
of the county in which said conviction took place,
who shall state that they are well acquainted with
the applicant, and that they are of the opinion
that the applicant should have restored to him
the lost rights of citizenship. The petition shall
be heard by the judge during a term of court, and
if he is satisfied as to the truth of the matters set
out in the petition and the affidavits, he shall de-
cree the applicant's restoration to the lost rights
of citizenship and the clerk shall spread the de-
cree upon his minute dockets. (1937, c. 384, s. 2.)
CHAPTER 12
CIVIL PROCEDURE
SUBCHAPTER I. DEFINITIONS AND
GENERAL PROVISIONS
Art. 1. Definitions
§ 395. Criminal action.
Subsection Two Affords Remedy against Alleged Uncon-
stitutional Discriminations. — By prosecuting under this sec-
tion persons doing- acts allowed by a statute a remedy
against alleged unconstitutional discriminations of a stat-
ute is afforded. Newman v. Watkins, 208 N. C. 675, 182
S. E. 453.
Which Affords an Adequate Remedy. — Where the alleged
acts of the defendant are criminal the plaintiff is not en-
titled to equitable relief in the nature of an injunction but
is furnished an adequate remedy by this section. Carolina
Motor Service v. Atlantic Coast Line R. Co., 210 N. C.
36, 185 S. F- 479, 104 A. L. R. 1165.
SUBCHAPTER II. LIMITATIONS
Art. 3. Limitations, General Provisions
§ 411. Defendant out of state; when action be-
gun or judgment enforced.
"The times herein limited" means.
In accord with original. See Hill v. Lindsay, 210 N. C.
■694, 188 S. F. 406.
§ 415. New action within one year after non-
suit, etc.
Nonsuit Operates as Res Adjudicata Only Where Second
Action Is Substantially Identical with First. —
In accord with original. See Ingle v. Cassady, 211 N. C.
287, 189 S. F- 776.
Parol Evidence to Prove Nature of, Action. —
In accord with original. See Little v. Bost, 208 N. C.
762, 182 S. F. 448.
Actions to Which Applicable. —
Where the original action was instituted in the state court
within less than three years after the cause of action ac-
crued, and the present action was instituted in the federal
court within less than a year after the nonsuit was taken
in the original action, there can be no question as to the
[11
protection of this statute being available. Federal Reserve
Bank v. Kalin, 81 F. (2d) 1003, 1007.
§ 416. New promise must be in writing.
III. PART PAYMENT.
Elements Essential to Take Case Out of Statute. —
In accord with original. See Bryant v. Kellum, 209 N. C.
112, 182 S. F- 708.
Art. 4. Limitations, Real Property
§ 425. Title against state.
Sufficiency of Possession. —
The evidence was held sufficient to be submitted to the
jury on the issue of plaintiffs' actual, open, continuous, no-
torious, and adverse possession of the lands sufficient to
ripen title in plaintiffs under the provisions of this section,
and defendants' motion to nonsuit was erroneously granted.
Owens v. Blackwood Lbr. Co., 210 N. C. 504, 187 S. F. 804.
§ 426. Possession presumed out of state.
Quoted in Owens v. Blackwood Lbr. Co., 210 N. C. 504,
187 S. F. 804.
§ 428. Seven years possession under colorable
title.
II. NOTE TO SECTION 42S.
Cited in Owens v. Blackwood Lbr. Co., 210 N. C. 504,
187 S. F- 804.
§ 430. Twenty years adverse possession.
Tenants in Common — Possession of One Possession of AIL—
Where the possession of one cotenant is pursuant to an
agreement of all eotenants, his possession for more than
twenty years is insufficient to bar his eotenants or their
privies. Stallings v. Keeter, 211 N. C. 298, 190 S. F- 473.
Question for Jury.— In accord with second paragraph in
original. See Owens v. Blackwood Lbr. Co., 210 N. C.
504, 187 S. F. 804; Caskey v. West, 210 N. C. 240, 186 S.
F- 324.
Art. 5. Limitations, Other than Real Property
§ 437. Ten years.—
5. For the allotment of dower upon lands not
in the actual possession of the widow following
the death of her husband. (Rev., s. 391; Code, s.
152; C. C. P., ss. 14, 31; 1937, c. 368.)
Editor's Note.— The 1937 amendment directed that the above
subsection be added to this section. The rest of the section,
not being affected by the amendment, is not set out.
For a discussion of the effect of the amendment, see 15 N.
C. Law Rev., No. 4, p. 354.
I. IN GENERAL.
Applied in Davis v. Cockman, 211 N. C. 630, 191 S. F- 322.
III. SUBS. (2) SEALED INSTRUMENTS.
Application to Sureties. —
In accord with original. See North Carolina Bank, etc.,
Co. v. Williams, 209 N. C. 806, 185 S. F. 18.
Application to Bills, Notes, etc. —
Where the note contained the word "seal" opposite the
signature it was held to be conclusive as to the nature of
the instrument. Therefore this section controls as to the
time within which an action might be brought. Federal
Reserve Bank v. Kalin, 81 F. (2d) 1003.
IV. SUBS. (3) MORTGAGE FORECLOSURE.
Foreclosure Held Only Remedy in Absence of Signed Note.
— 'Where the plaintiff did not sign the note and was not
bound thereby, having executed only a deed of trust on
her land as additional security for the debt, in the event
of default in payment foreclosure of the deed of trust is
the only action maintainable against her. This section,
therefore, prescribes the time within which an action may
be brought. Carter v. Bost, 209 N. C. 830, 184 S. F- 817.
§ 439. Six years.
II. SUBSECTION ONE— PUBLIC OFFICERS.
Application to Registers of Deeds. — In accord with orig-
inal. See Bank of Spruce Pine v. McKinney, 209 N. C.
668, 184 S. F. 506.
§ 440. Five years.
I. IN GENERAL.
Quoted in Blevins v. Northwest Carolina Utilities, 209 N.
C. 683, 184 S. F. 517.
]
§ 441
CIVIL PROCEDURE
§ 449
§ 441. Three years.
I. IN GENERAL.
Section Not Applicable. — Where the plaintiff did not sign
the note and was not bound thereby, having executed only
a deed of trust on her land as additional security for the
debt, this section has no application. Carter v. Bost, 209
N. C. 830, 184 S. E. 817. See § 437, analysis line IV.
Cited in Mebane Graded School Dist. v. Alamance County,
211 N. C. 213, 189 S. E- 873.
IV. SUBSECTION THREE— TRESPASS UPON REALTY.
Application in Action to Recover Damages Resulting from
Sewage Disposal Plant. — Where the plaintiff executed a deed
of trust, deeded his equity of redemption to his sons, and
the deed of trust was foreclosed, all more than three years
before the institution of the action, and the plaintiff did not
again acquire title until less than a year before the ac-
tion, it was held in an action to recover damages to the
land resulting from defendant's sewage disposal plant that
the measure of damages should have been predicated upon
the difference in value at the time plaintiff again acquired
title and the date of the institution of the action, and an in-
struction that the jury should assess as damages the differ-
ence in the market value of the land on the date of the
institution of the action and the date three years prior
thereto, constitutes reversible error. Ballad v. Cherryville,
210 N. C. 728, 188 S. E\ 334.
Cited in Teseneer v. Henrietta Mills Co., 209 N. C. 615,
184 S. E. 535.
VI. SUBSECTION SIX— SURETIES OF EXECUTORS,
ETC.
Action to recover for alleged breach of bond as adminis-
tratrix accrues at the time the alleged breach is committed,
this subdivision having no provision relating to discovery
of the breach of the official bond as is provided for in cases
under subdivision (9). Hicks v. Purvis, 208 N. C. 657, 182
S. E. 151.
IX. SUBSECTION NINE— FRAUD OR MISTAKE.
Action for Omission from Deed. — Where a reversionary
clause was omitted from a deed by mistake of the drafts-
man it was held that the registration of the deed was
insufficient to constitute notice to plaintiffs, and the action
was not barred until three years after plaintiffs discov-
ered, or should have discovered, the mistake in the exer-
cise of due diligence. Ollis v. Board of Education, 210 N.
C. 489, 187 S. E. 772.
Action Barred by Negligence in Asserting Right.— The
plaintiffs contended that usurious interest was paid de-
fendant by their agent without their knowledge, and that
therefore their action to recover the penalty for usury was
not barred although instituted more than two years after
the last usurious payment (see § 442). It was held that
the plaintiffs are not entitled to invoke the statute, it ap-
pearing that plaintiffs did not institute action until more
than three years after they had executed a note bearing
six per cent interest in renewal of the original note upon
which usury was paid,, and that plaintiffs were negligent
in asserting their rights if any they had. Ghormley v. Hy-
att, 208 N. C. 478, 181 S. E- 242.
Cited in McCormick v. Jackson, 209 N. C. 359, 183 S. E-
369.
X. SUBSECTION X— REALTY SOLD FOR TAXES.
This section does not apply where the owner remains in
possession. Bailey v. Howell, 209 N. C. 712, 184 S'. E. 476.
§ 442. Two years, — Within two years —
1. All claims against counties, cities and towns
of this state shall be presented to the chairman of
the board of county commissioners, or to the chief
officers of the cities and towns, within two years
after the maturity of such claims, or the holders
shall be forever barred from a recovery thereon;
provided, however, that the provisions of this par-
agraph shall not apply to claims based upon
bonds, notes and interest coupons.
(1937, c. 359.)
I. SUBSECTION ONE— POLITICAL SUBDIVISIONS
OF STATE.
Editor's Note. — The 1937 amendment added the proviso to
paragraph one. The rest of the section, not being affected
by the amendment, is not set out.
Cited in Mebane Graded School Dist. v. Alamance County,
211 N. C. 213, 189 S. E. 873.
II. SUBSECTION TWO— PENALTY FOR USURY.
When Statute Begins to Run. —
In accord with original. See Ghormley v. Hyatt, 208 N.
C. 478, 181 S. E. 242.
Attorney's Fee Held Not Usurious. — See Woody v. Pru-
dential Life Ins. Co., 209 N. C. 364, 183 S. E. 296.
§ 443. One year.
Subsection Three — Action for Libel. — Where, in an action
for libel, defendants admit that the article was published
in defendant magazine on a certain date, and plaintiff shows
that the action was instituted one day less than a year
thereafter, defendant is not entitled to nonsuit upon his
plea of the one-year statute of limitations. Harrell v.
Goerch, 209 N. C. 741, 184 S. E- 489.
SUBCHAPTER III. PARTIES
Art. 6. Parties
§ 446. Real party in interest; grantees and as-
signees.
I. REAL PARTIES IN INTEREST.
A. In General.
Who Is Real Party in Interest.—
The requirement that an action must be maintained by
the real party in interest means some interest in the sub-
ject matter of the litigation and not merely an interest in
the action. Choate Rental Co. v. Justice, 211 N. C. 54, 188
S. E. 609.
Exception Does Not Apply to Fire Insurance Companies.
— If the exception in this section ("But this section does
not authorize the assignment of a thing in action not aris-
ing out of contract") operated to prevent a fire insurance
company, on paying a loss, from suing the one whose neg-
ligence caused the loss, it was repealed by Laws 1899, ch.
54, sec. 43 (see now § 6437), which provides that the insur-
ance company should be subrogated, to the extent of the
payment by it, to all right of recovery by assured. Buck-
ner v. United States Fire Ins. Co., 209 N. C. 640, 647, 184
S. E- 520, citing Hamburg- Bremen Fire Ins. Co. v. Atlantic
Coast Line R. Co., 132 N. C. 75, 43 S. E- 548.
Stated in Lawson v. Langley, 211 N. C. 526, 191 S. E- 229.
B. Personal Actions.
Transferee of Claim. — The discretion conferred by § 461
is a sound discretion to be exercised where the circum-
stances render it proper that the action be prosecuted in the
name of the transferee rather than in that of the original
plaintiff; and one circumstance calling for the exercise of
the discretion is the fact that the transferor, as in this case,
has parted with all interest to the transferee, since this
section requires that the action be prosecuted in the name
of the real party in interest. Hood v. Bell, 84 F. (2d) 136,
138.
Action on Note by Liquidating Agent. — In an action on a
note executed to a bank, the liquidating agent of the payee
bank and the Reconstruction Finance Corporation, to which
the note had been pledged as collateral security are both
interested parties and may jointly sue the makers of the
note. Hood v. Progressive Stores, 209 N. C. 36, 182 S. E.
694.
Shippers Are Real Parties in Interest in Action for Dis-
crimination in Rates.— Where certain carriers by truck sought
injunctive relief against railroad carriers for discrimination
in rates against certain cities and against certain commod-
ities, it was held that the basis for injunctive relief must
be an interference or threatened interference with a legal
right of the petitioner, not of a third party and that the
shippers would be the real parties in interest not the con-
tract truck carriers. Carolina Motor Service v. Atlantic
Coast Line R. Co., 210 N. C. 36, 38, 185 S. E. 479, 104 A.
L. R. 1165.
Action on Fidelity Bond. — Where stockholders and directors
gave their note to the bank for the amount of a shortage
due to embezzlement by a cashier to prevent liquidation,
and the bank neither surrenders nor assigns the fidelity bond
of the defaulting cashier, the bank is the real party in in-
terest and entitled to maintain an action upon the bond.
People's Bank v. Fidelity, etc., Co., 4 F. Supp. 379, 382.
Lessor Must Bring Action of Summary Ejectment. — Al-
though an agent of the lessor may make the oath in writ-
ing required in summary ejectment under § 2367, the ac-
tion must be prosecuted in the name of the lessor as the
real party in interest, and it may not be maintained in the
name of the lessor's rental agent. Choate Rental Co. v.
Justice, 211 N. C. 54, 188 S. E- 609.
§ 44)9. Action by executor or trustee.
By this section, fiduciaries are not made the real parties
in interest, but are empowered to bring an action for the
real beneficiaries. Lawson v. Langley, 211 N. C. 526, 191
S'. E. 229.
'Cited in Orr v. Twiggs, 210 N. C. 578, 187 S. E. 791.
[12
§ 450
CIVIL PROCEDURE
§ 484
§ 450. Infants, etc., sue by guardian or next
friend.
Foreign or Domestic Corporation Can Not Be Appointed
Next Friend.— Only a person whose fitness has first been
ascertained by the court is eligible for appointment by the
court as next friend of a minor to institute suit, and nei-
ther a foreign nor domestic corporation may be appointed
next friend of an infant. In re Will of Roediger, 209
N. C. 470, 184 S. E. 74. See also Appx. VII,. part II, § 16
and note.
Stated in Dawson v. Dangley, 211 N. C. 526, 191 S. E-
229.
§ 457. Joinder of parties; action by or against
one for benefit of a class.
Common Grantor of Plaintiff and Defendant Made Party
Defendant after Mutual Mistake.— Where there is allega-
tion of mutual mistake of the common grantor of the
plaintiff and defendant, and of the plaintiff and defendant
as grantees in the deeds simultaneously executed and de-
livered to them by said grantor, it was held proper for the
court to make the grantor a party defendant. Smith v.
Johnson, 209 N. C. 729, 731, 184 S. E- 486.
§ 458. Persons severally liable.
Action on Promissory Note. — Since the holder of a note
may sue any or all persons severally liable thereon, an
endorser may not attack for fraud a judgment entered
against him on the note in a suit maintained by the maker
in his capacity of administrator of the holder, in which
suit he takes a nonsuit against himself as maker of the
note. Castleberry v. Sasser, 210 N. C. 576, 187 S. E- 761.
§ 460. New parties by order of court; inter-
vener.
Quoted in Peterson v. McManus, 208 N. C. 802, 182 S.
E- 483.
§ 461. Abatement of actions.
The discretion conferred by this section is a sound dis-
cretion to be exercised where the circumstances render it
proper that the action be prosecuted in the name of the
transferee rather than in that of the original plaintiff; and
one circumstance calling for the exercise of the discretion
is the fact that the transferor, as in this case, has parted
with all interest to the transferee, since § 446 requires that
the action be prosecuted in the name of the real party
in interest. Hood v. Bell, 84 F. (2d) 136.
Applied in People's Bank v. Fidelity, etc., Co., 4 F. Supp.
379.
§ 462. Procedure on death of party.
Judgment Set Aside Where No One Authorized to Repre-
sent Estate at Trial. — Where it appears that at the time of
trial there was no one authorized to represent the estate,
this constitutes a meritorious reason for setting aside the
judgment, and this result is not affected by the payment of
fees to the attorneys purporting to represent defendant by
the executor c. t. a., under order of court, since the exec-
utor c. t. a. was not made a party to the suit, and did not
appear therein. Taylor v. Caudle, 208 N. C. 298, 180 S. E-
699.
SUBCHAPTER IV. VENUE
Art. 7. Venue
§ 463. Where subject of action situated.
I. IN GENERAL.
These sections relating to venue all refer to "actions" and
have no reference to the writ of habeas corpus which has
been denominated a "high prerogative writ." McEachern
v. McEachern, 210 N. C. 98, 102, 185 S. E. 684.
II. ACTIONS RELATING TO REAL PROPERTY.
Injuries to Land. —
The action to recover for injuries to land caused by back-
ing water upon it is transitory. Cox v. Oakdale Cotton
Mills, 211 N. C. 473, 190 S. E. 750.
§ 464. Where cause of action arose.
Action Dismissed as to Town Is Properly Remanded to
County of Origin.— Where the plaintiff instituted a suit in
the county of her residence, the county in which defendant
administrator qualified, and upon joinder of a town as a
party defendant, the action was removed to the county in
which the town is located, the town's demurrer being sus-
tained and the action dismissed as to it, it was held that
the court properly remanded the action to the county in
[13
Joyner, 209
which it was originally instituted. Banks
N. C. 261, 183 S'. E. 273.
§ 465. Official bonds, executors and administra-
tors.
Compelling Institution of Action in Particular County
Does Not Prevent Motion for Removal. — Where a plaintiff
was compelled to institute his action in a particular county
by reason of the mandate of this section, his act in so do-
ing could not therefore be imputed to him as a voluntary
choice of venue so as to prevent him from lodging a motion
for removal under § 470(2). Pushman v. Dameron, 208 N.
C. 336, 337, 180 S. E. 578.
Hence a trial judge in the exercise of a sound discretion,
has the power to remove the cause to another county for
trial. Pushman v. Dameron, 208 N. C. 336, 337, 180 S. E.
578.
Since the wording of this section does not necessarily
mean that the cause should be actually tried in such county.
Pushman v. Dameron, 208 N. C. 336, 337, 180 S. E. 578.
Quoted in Bohannon v. Wachovia Bank, etc., Co., 210 N.
C. 679, 188 S. E. 390.
§ 469. Venue in all other cases.
An action on a note by the commissioner of banks, etc.,
is properly brought in the county in which the insolvent
bank is situate and of which the liquidating agent is a resi-
dent, and defendants' motion for change of venue to the
county of their residence is properly refused. Hood v. Pro-
gressive Stores, 209 N. C. 36, 182 S. E- 694.
Stated in Dawson v. Dangley, 211 N. C. 526, 191 S. E- 229.
§ 470. Change of venue.
I. IN GENERAL.
Stated, in Dawson v. Dangley, 211 N. C. 526, 191 S. E-
229.
Cited in Cox v. Oakdale Cotton Mills, 211 N. C. 473, 190
S. E. 750.
II. THE APPLICATION FOR REMOVAL.
A. Time of Demand.
Instituting Action under § 465 Does Not Prevent Motion
for Change. — Where the plaintiff under § 465 is bound to
institute the action in the county in which defendant gave
bond, his act in so doing cannot be imputed to him as a
voluntary choice of venue, so as to prevent the lodging of
a motion under this section. Pushman v. Dameron, 208
N. C. 336, 180 S. E. 578.
Right of Defendant after Complaint Filed.— Where an or-
der for the examination for an adverse party is granted be-
fore the filing of the complaint, a motion for change of
venue as a matter of right may be denied without prejudice
to defendant's right to move for change of venue after the
filing of the complaint, the right of defendant to object to
venue, applying after complaint is filed. Bohannon v. Wach-
ovia Bank, etc., Co., 210 N. C. 679, 188 S. E- 390.
SUBCHAPTER V. COMMENCEMENT OF
ACTIONS
Art. 8. Summons
§ 476. Contents, return, seal.
Editor's Note.— For act, supplemental to this section, au-
thorizing tax collector to serve process in tax foreclosure
suits in Beaufort county, see Public Daws 1937, c. 65, s. 1.
For an analysis of this section, see 13 N. C. Daw Rev.,
No. 4, p. 371.
Summons in Quo Warranto Proceedings Must Meet Req-
uisites of Section. — In order for a valid service of sum-
mons in quo warranto proceedings under the provisions of
§ 881, it is necessary that the true copy of the summons
provided for in that section meet the requisites of this sec-
tion. McDeod v. Pearson, 208 N. C. 539, 181 S. E- 753.
Substantial Compliance. — There is a substantial compli-
ance with this section where the summons commanded the
plaintiff to appear and show cause why a trustee should
not be appointed in the place of the original trustee. The
plaintiff could readily understand what the summons meant.
Nail v. McConnell, 211 N. C. 258, 262, 190 S. E- 210.
§ 479. When officer must execute and return.
Cited in Dunn v. Wilson, 210 N. C. 493, 187 S. E- 802.
§ 484. Service by publication.
V. SERVICE BY PUBLICATION IN ACTION FOR
DIVORCE.
Applied in Burrowes v. Burrowes, 210 N. C. 788, 188 S.
E. 648.
§ 489
CIVIL PROCEDURE
§ 523
§ 489. Proof of service.
Cited in Dunn v. Wilson, 210 N. C. 493, 187 S. E. 802.
§ 491(a). Service upon non-resident drivers of
motor vehicles.
This section makes no provision for service on the per-
sonal representative of a deceased automobile owner who
dies after an accident occurring in this state and before
service of process, and service under the statute upon such
personal representative confers no jurisdiction on our courts,
since an agency, unless coupled with an interest, is termi-
nated by the death of the principal. Dowling v. Winters, 208
N. C. 521, 181 S. E. 751.
This section does not warrant service upon a nonresident
owner in an action for abuse of process based upon such
owner's arrest of plaintiff after a collision between their cars
in this state, since the action for abuse of process does not
arise out of a collision in which defendant was involved by
reason of the operation of his automobile in this state.
Lindsay v. Short, 210 N. C. 287, 186 S. E. 239.
§ 492. Defense after judgment on substituted
service.
Record Held to Disclose "Good Cause Shown" and a
Meritorious Defense.— See Blankenship v. DeCasco, 211 N.
C. 290, 189 S'. E. 773.
Art. 9. Prosecution Bonds
§ 494. Suit as a pauper; counsel.
Editor's Note. — The 1937 amendment, applicable only to
Durham, Forsyth, Nash and Northampton counties, directed
that the following sentence be added to this section: "Pro-
vided that before any judge or clerk shall make an order
allowing a person to sue as a pauper the applicant shall per-
sonally appear before the judge or clerk and be examined
under oath, showing to the satisfaction of the court that he
is unable to give the undertaking or make the deposit as
required by the preceding action."
SUBCHAPTER VI. PLEADINGS
Art. 12. Complaint
§ 506. Contents.
III. STATEMENT OF FACTS CONSTITUTING THE
CAUSE OF ACTION.
"A plain and concise statement of facts." —
In accord with original. See Citizen's Bank v. Gahagan,
210 N. C. 464, 187 S. E- 580.
§ 507. What causes of action may be joined.
I. IN GENERAL.
Former Equity Practice Followed. — Before this section
was adopted, the doctrine of multifariousness was generally
understood by the profession, and as the Code has in the
main conformed to the equity practice, it may be well to
look to those old landmarks for a guide through the mist
that envelopes the subject. Barkley v. McClung Realty Co.,
211 N. C. 540, 543, 191 S. E. 3, citing Young v. Young, 81
N. C. 91.
II. CAUSES OF ACTION WITH REFERENCE TO
TRANSACTION, OR SUBJECT OF ACTION.
The general rule. — In accord with original. See Barkley
v. McClung Realty Co., 211 N. C. 540, 542, 191 S. E. 3.
Series of Transactions Forming One Course of Dealing. —
In accord with original. See Barkley v. McClung Realty
Co., 211 N. C. 540, 543, 191 S. E- 3.
V. MUST AFFECT ALL PARTIES AND HAVE THE
SAME VENUE.
Causes Affecting Different Parties. —
An action against insurer to reform plaintiff's fire insur-
ance policy and to upset settlement and recover an addi-
tional sum under the policy as reformed, and against plain-
tiff's mortgagee to restrain foreclosure and recover rents,
is defective in that the several causes do not affect all
parties to the action, and the action is properly dismissed
upon demurrer for misjoinder of parties and causes. Mills
v. North Carolina Joint Stock Land Bank, 208 N. C. 674,
182 S. E. 336.
Art. 13. Defendant's Pleadings
§ 509. Demurrer and answer.
For an analysis of summons in inferior courts,
N. C. Law Rev., No. 4, p. 372.
Art. 14. Demurrer
§ 511. Grounds for.
I. IN GENERAL.
By filing answer defendants waive right to demur ex-
cept for want of jurisdiction or for failure of the com-
plaint to state a cause of action, and such waiver applies
to an amended complaint when the amended complaint is
substantially the same as the original complaint to which
answer was filed. Schnibben v. Ballard, etc., Co., 210
N. C. 193, 185 S. E. 646.
Applied in Board of Drainage Com'rs v. Jarvis, 211 N.
C. 690, 191 S. E. 514; Smith v. Sink, 211 N. C. 725.
Cited in Leach v. Page, 211 N. C. 622, 191 S. E- 349.
VI. MISJOINDER OF SEVERAL CAUSES OF ACTION.
What Constitutes Misjoinder. —
Defendant's demurrer to the complaint on the ground of
misjoinder in that the complaint stated three separate causes
of action, was properly overruled, for although the com-
plaint does not allege that the separate deeds were exe-
cuted by the defendants, respectively, pursuant to a con-
spiracy to hinder, delay, and defraud creditors, an infer-
ence to that effect is not only permissible but inescapable
from the facts alleged. Barkley v. McClung Realty Co., 211
N. C. 540, 191 S. E. 3.
VII. FAILURE TO STATE SUFFICIENT FACTS.
Question of Sufficiency Can Be Presented Only by Demur-
rer.—The sufficiency of the allegations of a complaint is
not presented by a motion that certain designated allega-
tions be stricken from the complaint, on the ground that
said allegations are improper, irrelevant, and immaterial.
That question can be presented only by a demurrer to the
complaint, either in writing or ore tenus. Poovey v.
Hickory, 210 N. C. 630, 631, 188 S. E. 78.
Applied in Heater v. Carolina Power, etc., Co., 210 N.
C. 88, 185 S. E. 447; Reed v. Farmer, 211 N. C. 249, 189
S. E. 882; Swaringen v. Poplin, 211 N. C. 700, 191 S. E.
746.
Cited in Bennett v. Southern Ry. Co., 211 N. C. 474,
191 S. E- 240.
§ 515. Procedure after return of judgment.
Statute Liberally Construed. —
In accord with original. See Citizens Bank v. Gahagan,
210 N. C. 464, 187 S. E- 464.
Discretion of Court. —
In accord with original. See Hood v. Elder Motor Co.,
209 N. C. 303, 183 S. E. 529.
Amendment after Demurrer Sustained.— Under this sec-
tion where the supreme court affirms the judgment of the
court below sustaining the demurrer of one of defendants,
the decision is without prejudice to plaintiff's right to
amend the complaint, if so advised. Byrd v. Waldrop, 210
N. C. 669, 188 S. E. 101, wherein the court inadvertently
referred to " § 575.
Art. 15. Answer
§ 521. Counterclaim.
II. CLAIMS ARISING OUT OF PLAINTIFF'S
DEMAND.
A. General Rules and Instances.
Tort against Contract Claim. —
In accord with second paragraph in original. See Wei-
ner v. Equel's Style Shop, 210 N. C. 705, 188 S. E. 331.
III. CLAIMS ARISING OUT OF INDEPENDENT
CONTRACT.
Liability on County Treasurer's Bond against Past Due
County Bonds.— Where defendants were indebted to plain-
tiff county as principal and sureties on the bond of the
county treasurer for funds of the county which the treas-
urer had not accounted for because of the failure of the
bank in which the funds were deposited, it was held that
the defendants were entitled to offset their debt to the
county with past- due county bonds owned by them, since
the respective obligations of the county and defendants
arose out of contract, and either party might have recovered
judgment against the other on their respective obligations,
and the county's obligation to defendants existed prior to
the institution of the action. Swain County v. Welch, 208
N. C. 439, 181 S. E. 321.
§ 523. Contributory negligence pleaded and
proved.
Contributory negligence must be pleaded in the answer
and proved on the trial, the burden on the issue being upon
see 13 defendant under this section. Ramsey v. Nash Furniture
Co., 209 N. C. 165, 183 S. E- 536.
[14]
§ 525
CIVIL PROCEDURE
§ 564
Defendant must plead contributory negligence in order to
be entitled to the submission of the issue to the jury. Be-
van v. Carter, 210 N. C. 291, 186 S. E. 321.
A demurrer to the complaint on the ground of contribu-
tory negligence will not be sustained unless upon the face
of the complaint itself contributory negligence is patent
and unquestionable. Ramsey v. Nash Furniture Co., 209
N. C. 165, 183 S. E- 536.
Motion to Nonsuit— .Scintilla of Evidence-
Where there is evidence at the trial tending to sustain
the allegations of the complaint, the defendant is not en-
titled to a judgment as of nonsuit, unless all the evidence,
considered in the light most favorable to the plaintiff, sus-
tains the defenses, e. g., contributory negligence, relied upon
by the defendant in bar of plaintiff's recovery. Pittman
v. Downing, 209 N. C. 219, 222, 183 S'. E. 362.
A four-year-old child is incapable of negligence, primary
or contributory. Bevan v. Carter, 210 N. C. 291, 186 S. E-
321.
Applied in Stovall v. Ragland, 211 N. C. 536, 190 S'. E-
899.
Art. 16. Reply
§ 525. Content; demurrer to answer.
Applied in Bryan v. Acme Mfg. Co., 209 N. C. 720, 184 S.
E. 471.
Art. 17. Pleadings, General Provisions
§ 535. Pleadings construed liberally.
In Favor of Pleader. —
In accord with original. See Bailey v. Roberts, 208 N. C.
532, 181 S. E. 754; Leach v. Page, 211 N. C. 622, 191 S. E.
349; Anthony v. Knight, 211 N. C. 637, 191 S. E. 323.
Statement of Cause of Action.—
In accord with fourth paragraph in original. See Ram-
sey v. Nash Furniture Co., 209 N. C. 165, 168, 183 S. E- 536;
Cummings v. Dunning, 210 N. C. 156, 185 S. E. 653.
Although under this section allegations of pleadings are
to be construed liberally "with a view to substantial jus-
tice between the parties," § 506 makes it a necessary re-
quirement that the complaint shall contain "a plain and
concise statement of the facts constituting a cause of ac-
tion," which means that it shall contain a plain and con-
cise statement of all the facts necessary to enable the plain-
tiff to recover. Citizens Bank v. Gahagan, 210 N. C. 464,
466, 187 S. E. 580.
The material allegations of the complaint are that at the
foreclosure sale the land was bought by the secretary and
treasurer of the corporate mortgagee, and that this official
was "acting in said capacity at the time he purchased said
land at the foreclosure sale, and was acting as the agent of
said bank," and that this official shortly thereafter con-
veyed the land to the mortgagee, which thus indirectly
purchased at its own sale. Held that the complaint is not
so wholly insufficient that it can be overthrown by a
demurrer. Council v. Greensboro Joint Stock Land Bank,
211 N. C. 262, 265, 189 S. E- m.
Cited in Nail v. McConnell, 211 N. C. 258, 190 S. E, 210.
§ 537. Irrelevant, redundant, indefinite plead-
ings.
Editor's Note-
In addition to the authorities cited under this catchfine
in the original, see Leach v. Page, 211 N. C. 622, 191 S. E-
349.
Power to Make Explicit Ex Mero Motu. —
In accord with original. See Bowling v. Fidelity Bank,
209 N. C. 463, 184 S. E. 13.
Discretion of Court. —
Under this section the Superior Court is authorized in
the exercise of its discretion to strike from a pleading
any allegations of purely evidential and probative facts.
Life Ins. Co. v. Smathers, 211 N. C. 373, 190 S. E- 484.
Time of Motion. —
In accord with first paragraph in original. See Bowling
v. Fidelity Bank, 209 N. C. 463, 184 S. E. 13.
A motion to strike out does not challenge sufficiency of
the complaint to state a cause of action, but concedes that
sufficient facts are alleged, and presents only the propri-
ety, relevancy, or materiality of the allegations sought to
be stricken out. Poovey v. Hickory, 210 N. C. 630, 188
S. E. 78.
"Oratorical" Allegations Are Not Improper. — Although
the allegations are made in language which the defendant
thinks is somewhat oratorical, this does not make them
improper, irrelevant, or immaterial, nor can it be held
that as a matter of law the reading of such allegations to
the court, in the presence of the jury, will be prejudicial
[1
to the rights of the defendant. Poovey v. Hickory, 210
N. C. 630, 633, 188 S. E. 78.
Allowance of Amendments. — Under this section and § 534
when there is a defective cause of action, although in due
form, the plaintiff cannot recover unless the court in its
discretion, on reasonable terms, allows an amendment.
When a good cause of action is set out, but defective
in form, the court may require the pleadings to be made
definite and certain by amendment. Bowling v. Fidelity
Bank, 209 N. C. 463, 184 S. E. 13, citing Allen v. Carolina
Cent. Ry. Co., 120 N. C. 548, 27 S. E. 76.
Review of Refusal of Motion to Strike. —
In accord with original. See Scott v. Bryan, 210 N. C.
478, 187 S. E. 756.
§ 542, Pleadings in libel and slander.
Where defendants had not pleaded privilege, justifica-
tion, etc., it was error to withhold case from the jury.
Harrell v. Goerch, 209 N. C. 741, 742, 184 S. E- 489.
In the absence of a plea of privilege, justification, or mit-
igating circumstances, the evidence was sufficient to be
submitted to the jury on the question of whether the gen-
eral manager was acting within the scope of his author-
ity in uttering certain slanderous words in an action there-
for against the corporation. Alley v. Dong, 209 N. C.
245, 183 S. E- 294.
§ 543. Allegations not denied, deemed true.
Applied in Little v. Rhyne, 211 N. C. 431, 190 S. E. 725.
Art. 18, Amendments
§ 547. Amendments in discretion of courts.
I. IN GENERAL.
Amendment after Demurrer. — The trial court has the dis-
cretionary power to allow plaintiff to amend his com-
plaint, upon the hearing of defendants' demurrer thereto,
so as to allege that the negligence complained of was the
proximate cause of the injury. Bailey v. Roberts, 208 N.
C. 532, 181 S. E. 754.
III. INTRODUCING NEW CAUSE OF ACTION,
DEFENSE OR RELIEF.
Permissible When It Introduces No New Cause. —
In accord with original. See Wilmington v. Board of
Education, 210 N. C. 197, 185 S. E- 767.
IV. CONFORMING PLEADINGS TO FACTS FOUND.
Leave to Amend to Conform Pleadings to Facts. —
The court has discretionary power to allow a pleading
to be amended after the introduction of evidence so as to
make the pleading conform to the evidence. Hicks v.
Nivens, 210 N. C. 44,, 185 S. E- 469.
VI. AMENDMENTS AS TO PARTIES.
Generally. — In accord with original. See North Carolina
Bank, etc., Co. v. Williams, 209 N. C. 806, 185 S. E- 18.
Discretionary and Not Reviewable.—
In accord with original. See Wilmington v. Board of
Education, 210 N. C. 197, 185 S. E. 767.
V. AMENDMENTS OF PROCESS.
Amendment in Attachment Proceedings. — Amendment un-
der this section may not be permitted where the rights of
third persons are injuriously affected. And where the surety
on defendant's undertaking has executed a bond in a sub-
stantial sum, in accordance with § 815, to discharge the lien
on property which has been attached by virtue of a warrant
based solely on an unfounded allegation in the affidavit, the
allowance of an amendment thereafter to set up a new ground
of attachmet would have the effect of imposing on the surety
an obligation which he did not assume. Rushing v. Ash-
craft, 211 N. C. 627, 629, 191 S. E- 332.
SUBCHAPTER VII. TRIAL, AND ITS
INCIDENTS
Art. 19. Trial
§ 564. Judge to explain law, but give no opin-
ion on facts.
II. OPINION OF JUDGE.
A. General Considerations.
The provisions of this section are mandatory. State v.
Evans, 211 N. C. 458, 459, 190 S. E. 724.
Section Not Confined to Charge. —
In accord with original. See State v. Oakley, 210 N. C.
206, 186 S. E. 244.
Motive of Judge Immaterial. —
In accord with original. See State v. Oakley, 210 N. C.
206, 186 S. E. 244.
§ 565
CIVIL PROCEDURE
§ 567
Applied in Wilson v. Inter-Ocean Cas. Co., 210 N. C. 585,
188 S, E. 102; State v. Batts, 210 N. C. 659, 188 S. E. 99.
Cited in Hancock v. Wilson, 211 N. C. 129, 189 S. E. 631;
Noland Co. v. Jones, 211 N. C. 462, 190 S. E- 720.
B. What Constitutes an Opinion.
Direct Language Not Necessary to Constitute Error. —
In accord with original. See State v. Rhinehart, 209 N.
C. 150, 153, 183 S. E- 388.
Remarks That Fact Is "Sufficiently Proved."— The mortu-
ary tables (see § 1790), are but evidence of life expectancy,
to be taken in connection with other evidence of health,
constitution, and habits, and an instruction that intestate's
life expectancy was so many years, based upon the tables,
violates this rule and the rule against an expression of opin-
ion by the court as to whether a fact is sufficiently proven.
Wachovia Bank, etc., Co. v. Atlantic Greyhound Lines, 210
N. C. 293, 186 S. E. 320.
Remarks Must Be Prejudicial. —
To constitute reversible error, an expression of opinion on
the part of the court must be prejudicial to the interest of
the appellant.
E. 75.
State v. Puett, 210 N. C. 633,, 635,
C. Illustrative Cases.
1. Remarks Held Not Erroneous.
b. Remarks Concerning Witnesses.
Defendant Not Prejudiced by Remarks During Cross- Ex-
amination of State's Witness. — Remarks of the court in the
presence of the jury which tend to discredit a witness will
be held for reversible error upon appeal of the injured party,
but when such remarks are made during defendant's cross-
examination of a state's witness, defendant .cannot be prej-
udiced thereby and his exception thereto cannot be sus-
tained. State v. Puett, 210 N. C. 633, 188 S. E. 75.
d. Miscellaneous Remarks.
Question as to Verdict. — The question of the court as to
whether the verdict of guilty referred to first degree bur-
glary held to be an inquiry and not an expression of opin-
ion. State v. Walls, 211 N. C. 487, 497, 191 S. E. 232.
2. Remarks Held Error,
a. Remarks Concerning a Party to the Trial.
Identification of Defendant.—
Where the state relied upon testimony that tracks had
been followed from the scene of the crime to the defend-
ant's room, but did not prove them to be the defendant's,
the expression of the court, "You tracked the defendant to
whose house?" was held prejudicial, and especially so as
the evidence of the state was circumstantial. State v.
Oakley, 210 N. C. 206, 211, 186 S. E. 244.
b. Remarks Concerning Witnesses.
Remarks Having Effect of Impeaching Witnesses.— Where
questions propounded by the court have the effect of im-
peaching witnesses they are in violation of this section and
defendants' exceptive assignments of error thereto must be
sustained. State v. Winckler, 210 N. C. 556, 187 S. E. 792.
c. Remarks Concerning Weight and Credibility of Testimony.
Concerning Corroboration of Defendant's Testimony. —
Where the defendant, charged with homicide, testified as to
his version of the fatal killing upon his contention of self-
defense, and narrated the actions of himself, his oldest son,
and the deceased, and where upon the conclusion of his
testimony the court, by interrogation objected to by de-
fendant's counsel, brought out the fact that the son was
seventeen years old, and was present in the courtroom, the
charge of the court which set forth as the contention of the
state that defendant's testimony could not be relied upon
because uncorroborated, notwithstanding the fact that de-
fendant's oldest son, who saw what happened, was present
in the court room was held to constitute reversible error.
State v. Bean, 211 N. C. 59, 188 S. E. 610.
III. EXPLANATION OF LAW AND EVIDENCE.
A. General Considerations of the Charge.
Charge Must Be Considered as a Whole. —
Where it appears that the charge, when read contextu-
ally as a whole, was not prejudicial in its manner of stat-
ing the evidence and contentions of the parties, an excep-
tion, based upon detached portions thereof, will not be sus-
tained. Braddy v. Pfaff, 210 N. C. 248, 186 S. E. 340.
Charges Held Not to Impinge This Section. — See State v.
Hester, 209 N. C. 99, 182 S'. E- 738; State v. Hodgin, 210
N. C. 371, 186 S. E. 495; State v. Atlantic Ice, etc., Co., 210
N. C. 742, 188 S. E. 412.
B. Explanation Required.
1. In General.
Rule Stated.—
In both criminal and civil causes under this section, a
judge in his charge to the jury should present every sub-
stantial and essential feature of the case embraced within
[16
the issue and arising on the evidence, and this without any
special prayer for instructions to that effect. He should
state in a plain and correct manner the evidence in the case
and explain the law arising thereon, and a failure to do so,
when properly presented, shall be held for error. Mebane
Graded School Dist. v. Alamance County, 211 N. C. 213,
226, 189 S. E. 873, citing State v. Merrick, 171 N. C. 788,
88 S. E. 501.
Explanation of Subordinate Features of Case.—
In the absence of a special request for instructions, the
failure of the charge to define certain terms constituting a
subordinate feature of the charge will not be held for er-
ror. State v. Puckett, 211 N. C. 66, 189 S. E. 183.
3. Explanation of Law.
Charge Covering Subordinate Features. —
In accord with original. See Mebane Graded School Dist.
v. Alamance County, 211 N. C. 213, 189 S. E- 873; Headen
v. Bluebird Transp. Corp., 211 N. C. 639, 191 S. E- 331.
Party Must Request. —
Defendant desiring more full or detailed instructions as
to any particular phase of evidence or law should request
special instructions. State v. Hendricks, 207 N. C. 873, 178
S. E. 557.
Charge on Degrees of Crime. —
Where the defendant admits his guilt of murder in the
second degree, it is not error for the trial court to act
upon the admission, and after fully charging the elements
of murder in the first degree, and defining murder in the
second degree, to instruct the jury to return a verdict of
murder in the second degree if they should fail to find any
one of the elements of first degree murder, as defined, be-
yond a reasonable doubt. State v. Grier, 209 N. C. 298,
183 S. E. 272.
Failure to Instruct as to Law of Self Defense.— See State
v. Thornton, 211 N. C. 413, 190 S. E. 758; State v. God-
win, 211 N. C. 419, 190 S. E. 761.
C. Illustrative Cases.
Failure to Define "Conspiracy." — Where the court charged
the jury that defendant would be guilty of first degree mur-
der even if one of the others fired the fatal shot, if it was
fired in the execution of their unlawful conspiracy and
agreement the defendant excepted on the ground that the
court did not define "conspiracy." It was held that the
exception could not be sustained, in the absence of a spe-
cial request for instructions, the term "conspiracy" being
used synonymously with "agreement," and the charge be-
ing clear and easily understood, and defendant being guilty
of murder in the first degree under the evidence regard-
less of the existence of a technical conspiracy. State v.
Puckett, 211 N. C. 66, 189 S. E- 183.
Instruction on Contributory Negligence. — Instruction as to
contributory negligence of 8J^ year old child, held to fully
comply with this section, where the judge explained that the
degree of care required of a child is that he exercise care
and prudence equal to his capacity. Leach v. Varley, 211
N. C. 207, 210, 189 S. E. 636.
§ 565. Request for instructions.
Section Mandatory. —
In accord with original. See Hicks v. Nivens, 210 N. C.
44, 47, 185 S. E. 469.
A party must aptly tender written request for special in-
structions desired by him in order for an exception to the
charge for its failure to contain such instructions to be con-
sidered on appeal. State v. Spillman, 210 N. C. 271, 186
S. E- 322.
Failure to Give Proper Instruction Is Reversible Error. —
When a party tenders a request for a specific instruction,
correct in itself and supported by the evidence, the failure
of the trial court to give such instruction, in substance at
least, either in response to the prayer or in some portion
of the charge, is reversible error. Calhoun v. State High-
way, etc., Comm., 208 N. C. 424, 181 S. E- 271.
Court Need Not Use Exact Words of Instruction. —
In accord with original. See Coral Gables v. Ayres, 208
N. C. 426, 181 S. E- 263.
Applied in Taylor v. Rierson, 210 N. C. 185, 185 S. E- 627.
§ 567. Demurrer to evidence.
Judgment as of Nonsuit May Be Entered by Trial Court
of Its Own Motion.— A judgment as of nonsuit entered by
the trial court of its own motion will not be held for error
when the evidence would justify a directed verdict, a non-
suit and a directed verdict having the same legal effect.
Ferrell v. Metropolitan Life Ins. Co., 208 N. C. 420, 181 S.
E. 327.
Time to Make Motion to Nonsuit. —
Where a party fails to move for judgment as of nonsuit
at the close of plaintiff's evidence, its motion therefor at
the close of all the evidence cannot be granted, since the
§ 568
CIVIL PROCEDURE
§ 584
right to demur to the evidence is waived. Jones v. Dixie
Fire Ins. Co., 210 N. C. 559, 187 S. E. 769. See also State
v. Ormond, 211 N. C. 437, 191 S. E- 22.
Plaintiff Entitled to Benefit of Inferences.—
In accord with original. See Owens v. Blackwood I^br.
Co., 210 N. C. 504, 187 S. E. 804; Miller v. Wood, 210 N.
C. 520, 187 S. E- 765; Ford v. Atlantic Coast Line R. Co.,
209 N. C. 108, 182 S. E- 717; Teseneer v. Henrietta Mills
Co., 209 N. C. 615, 184 S. E. 535; Hancock v. Wilson, 211
N. C. 129, 189 S. E. 631; Harper v. Seaboard Air Line Ry.
Co., 211 N. C. 398, 190 S. E. 750; Cole v. Atlantic Coast
Line R. Co., 211 N. C. 591, 191 S. E. 353; Debnam v.
Whiteville, 211 N. C. 618, 191 S. E. 325; Headen v. Blue-
bird Transp. Corp., 211 N. C. 639, 191 S. E. 331; Inde-
pendent Oil Co. v. Broadfoot Iron Works, 211 N. C. 668,
191 S. E. 508.
Not Allowed after Verdict —
In accord with second paragraph in original. See Jones
v. Dixie Fire Ins. Co., 210 N. C. 559, 187 S. E- 769.
Motion Must Be Renewed1. —
In accord with original. See Choate Rental Co. v. Jus-
tice, 211 N. C. 54, 188 S. E. 609.
Waiver. —
In accord with first paragraph in original. See Fer-
rell v. Metropolitan Life Ins. Co., 208 N. C. 420, 181 S. E.
327; Stephenson v. Honeycutt, 209 N. C. 701, 184 S. E-
482.
When Nonsuit Proper. —
In accord with original. See Blackwell v. Coca-Cola
Bottling Co., 208 N. C. 751, 182 S. E- 469.
Contributory Negligence. —
In accord with fifth paragraph in original. See Ram-
sey v. Nash Furniture Co., 209 N. C. 165, 170, 183 S. E.
536; Hinshaw v. Pepper, 210 N. C. 573, 187 S. E- 786; Ow-
ens v. Atlantic Coast Line R. Co., 207 N. C. 856, 857, 175
S. E. 717.
Originally, under this section, in cases to which it was
applicable, there was considerable doubt as to whether a
plea of contributory negligence — the burden of such issue be-
ing on the defendant — could be taken advantage of on a
motion to nonsuit, but it is now well settled that such may
be done when the contributory negligence of the plaintiff is
established by his own evidence, as he thus proves him-
self out of court. Hayes v. Western Union Tel. Co., 211
N. C. 192, 193, 189 S. E- 499.
Contributory Negligence — Demurrer Sustained. —
Where the evidence tended to show that plaintiff's intes-
tate was negligent up to the time of the injury and the
doctrine of the "last clear chance" is inapplicable, it was
held that defendant's demurrer to the evidence should have
been sustained. Lemings v. Southern Ry. Co., 211 N. C.
499, 191 S. E. 39.
Evidence Sufficient to Deny Nonsuit.— See Niblock v. Blue
Bird Taxi Co., 208 N. C. 737, 182 S. E. 330; Hampton v.
Thomasville Coca-Cola Bottling Co., 208 N. C. 331, 180 S.
E. 584; Dilling v. Federal Life Ins. Co., 209 N. C. 546, 183
S. E. 752; Daniels v. Swift & Co., 209 N. C. 567, 183 S. E-
748; Teseneer v. Henrietta Mills Co., 209 N. C. 615, 184 S.
E. 535.
Applied in Davenport v. Pennsylvania Fire Ins. Co., 207
N. C. 861, 177 S. E. 187; Burns v. Charlotte, 210 N. C. 48,
185 S. E. 443; Woodley v. Combs, 210 N. C. 482, 187 S. E.
762; Ollis v. Board of Education, 210 N. C. 489, 187 S. E-
772; Exum v. Baumrind, 210 N. C. 650, 188 S. E- 200; Joy-
ner v. Dail, 210 N. C. 663, 188 S. E. 209; Dixson v. Johnson
Realty Co., 209 N. C. 354, 183 S. E. 382; Queen v. DeHart,
209 N. C. 414, 184 S. E. 7; McGraw v. Southern Ry. Co.,
209 N. C. 432, 184 S. E. 31; Jackson v. Scheiber, 209 N.
C. 441, 184 S. E. 17; Williams v. Greensboro Fire Ins. Co.,
209 N. C. 765, 185 S. E- 21; Federal Life Ins. Co. v. Nichols,
209 N. C. 817, 185 S. E. 10; Betts v. Jones, 208 N. C. 410,
181 S. E. 334; Planters' Nat. Bank, etc., Co. v. Atlantic
Coast Line R. Co., 208 N. C. 574, 181 S. E- 635; Cordell v.
Brotherhood of Locomotive Firemen, etc., 208 N. C. 632,
182 S. E. 141; Morris v. Seashore Transp. Co., 208 N. C.
807, 182 S. E. 487; Anderson v. American Mut. Liability
Ins. Co., 211 N. C. 23, 188 S. E. 642; Wilson v. Perkins, 211
N. C. 110, 189 S. E. 179; Kelly v. Hunsucker, 211 N. C. 153,
189 S. E. 664; Yates v. Thomasville Chair Co., 211 N. C.
200, 189 S. E. 500; Breece v. Standard Oil Co., 211 N. C.
211, 189 S. E. 498; Mebane Graded School Dist. v. Alamance
County, 211 N. C. 213, 189 S. E- 873; Cashatt v. Brown, 211
N. C. 367, 190 S. E. 480; Stovall v. Ragland, 211 N. C. 536,
190 S. E- 899; Jackson v. Thomas, 211 N. C. 634, 191 S. E-
327; Creech v. Sovereign Camp, W. O. W., 211 N. C. 658,
191 S. E. 840; Smith v. Sink, 211 N. C. 725.
Cited in Keith v. Gregg, 210 N. C. 802, 188 S. E. 849;
Stallings v. Keeter, 211 N. C. 298, 190 S. E. 473; Little v.
Rhyne, 211 N. C. 431, 190 S. E. 725; Noland Co. v. Jones,
211 N. C. 462, 190 S. E. 720.
§ 568. Waiver of jury trial.
Applied in Best v. Garris, 211 N. C. 305, 190 S. E- 221.
§ 569. Findings of fact and conclusions of law
by judge.
Separate Conclusions of Facts and Law. —
Where the court fully and completely sets out the facts
found by him and renders judgment thereon, an exception
that the court did not state his findings of fact and con-
clusions of law separately as required by this section, can-
not be sustained, since the judgment constitutes the court's
conclusion of law on the facts found. Dailey v. Washing-
ton Nat. Ins. Co., 208 N. C. 817, 182 S. E- 332.
Exceptions. —
In accord with original. See Best v. Garris, 211 N. C.
305, 190 S. E. 221.
Exception to Judgment Presents Only Question Whether
Facts Found Support It. — An exception to a judgment ren-
dered in a trial by the court, without exception to the evi-
dence or the court's findings of fact, presents the sole
question of whether the facts found support the judgment.
Best v. Garris, 211 N. C. 305, 190 S. E. 221.
§ 570. Exceptions to decision of court.
See the next foregoing section and the note thereto.
Art. 20. Reference
§ 572. By consent.
Waiver of Jury Tried. —
In accord with original. See In re Parker, 209 N. C.
693, 184 S. E- 532; Anderson v. McRae, 211 N. C. 197, 189
S. E. 639.
§ 578. Report; review and judgment.
Power of Judge — Recommittal of Case. —
In accord with original. See Carolina Mineral Co. v.
Young, 211 N. C. 387, 190 S. E- 520.
Judge of Superior Court may affirm, amend, modify, set
aside, etc., the report of a referee. This he may do, how-
ever, only in passing upon the exceptions, for in the ab-
sence of exceptions to the factual findings of a referee,
such findings are conclusive, but his rulings upon ques-
tions of fact are conclusive upon the Supreme Court. An-
derson v. McRae, 211 N. C. 197, 198, 189 S. E- 639.
N. C. Supp.— 2
Art. 21. Issues
§ 580. Defined.
See the note to § 584 in this Supplement.
§ 581. Of law.
See the note to § 584 in this Supplement.
§ 582. Of fact.
See the note to § 584 in this Supplement.
Error to Submit Issue Not Raised by Pleadings.— Where
the contract sued on is admitted in the answer, an issue
as to the existence of the contract does not arise upon
the pleadings, and it is error for the court to submit such
issue to the jury. Fairmont School v. Bevis, 210 N. C.
50, 185 S. E. 463.
§ 583. Order of trial.
See the note to § 584 in this Supplement.
§ 584. Form and preparation.
Editor's Note. —
In accord with second paragraph in original. See Stan-
back v. Haywood, 209 N. C. 798, 799, 184 S. E. 831, cit-
ing Tucker v. Satterthwaite, 120 N. C. 118, 27 S. E. 45.
It is within the sound discretion of the trial judge to de-
termine what issues shall be submitted, and to frame them
subject to the restrictions, first, that only issues of fact
raised by the pleadings are submitted; secondly, that the
verdict constitutes a sufficient basis for a judgment; and
thirdly, that it does not appear that a party was debarred
for want of an additional issue or issues of the opportunity
to present to the jury some view of the law arising out of
the evidence. Stanback v. Haywood, 209 N. C. 798, 799, 184
S. E. 831.
Court Adding Issue of Contributory Negligence. — Where
the plaintiff brought suit against two defendants as joint
tort-feasors, one defendant answering alleging contributory
negligence and one defendant not filing an answer, and
where the plaintiff tendered issues of negligence of the an-
swering defendant, the court adding the issue of contrib-
utory negligence arising upon the pleading of this defend-
ant, it was held that as a rule the court must submit the
[17]
§ 590
CIVIL PROCEDURE
§ 618
issue arising on the pleadings, but the plaintiff waived this
by tendering only one issue as to the answering defend-
ant, and allowing the case to be tried on that theory. Am-
nions v. Fisher, 208 N. C. 712, 182 S. % 479.
Art. 22. Verdict
§ 590. Exceptions.
Errors in Charge. —
In accord with second paragraph in original. See Rice
v. Swannanoa- Berkeley Hotel Co., 209 N. C. 519, 184 S. E. 3.
§ 591. Motion to set aside.
Discretion of the Judge. —
A discretionary order entered at the term of the trial
setting aside a verdict as contrary to the weight of the
evidence is not reviewable, and an appeal therefrom will be
dismissed in the absence of abuse of discretion. Anderson
v. Holland, 209 N. C. 746, 184 S. E. 511.
SUBCHAPTER VIII. JUDGMENT
Art. 23. Judgment
§ 593. Judgments authorized to be entered by-
clerk; sale of property; continuance pending sale;
writs of assistance and possession.
Appeals from Clerk to Judge. —
In Ward v. Agrillo, 194 N. C. 321, 139 S. E- 451, cited in
Howard v. Queen City Coach Co., 211 N. C. 329, 331, 190
S. E. 478, it was said that in the absence of statutory pro-
vision to that effect, the resident judge of a judicial dis-
trict has no jurisdiction to hear and determine an appeal
from a judgment of the clerk of the Superior Court of any
county in his district, rendered pursuant to the provisions
of this section, except when such judge is holding the courts
of the district by assignment under the statute, or is hold-
ing a term of court by exchange, or under a special com-
mission from the Governor.
§ 598. Rendered in vacation; confirmation of
judicial sales. — In all cases where the superior
court in vacation has jurisdiction, and all of the
parties unite in the proceedings, they may apply
for relief to the superior court in vacation, or in
term time, at their election.
Sales made by receivers or commissioners ap-
pointed by the superior court, unless governed
by the provisions of Consolidated Statutes, sec-
tion two thousand five hundred and ninety-one,
as amended, may after ten days from the date
of sale, in the absence of objection or raise in bid,
be confirmed, or in case of objection or raise in
bid, re-sales may be ordered, without notice, in
chambers in any county in the judicial district, in
which the proceedings are pending, by the resi-
dent judge or the judge holding the courts of said
district; but this shall not diminish the power of
the court in term time to act in such matters as
now provided by law where no order has been
made under this section. (Rev., s. 559; Code, s.
230; 1871-2, c. 3; 1937, c. 361.)
Editor's Note. — The 1937 amendment added the second
sentence of this section.
For article discussing effect of amendment, see 15 N. C.
Law Rev., No. 4, p, 338.
§ 600. Mistake, surprise, excusable neglect.
I. IN GENERAL.
Excusable Neglect and Meritorious Defense. —
In accord with first paragraph in original. See Jones v.
Craddock, 211 N. C. 382, 190 S. E. *224.
Not Applicable to Irregular Verdicts. —
In accord with original. See Hood v. Stewart, 209 N. C.
424, 184 S. E. 36.
Meritorious Defense Must Be Shown. —
In accord with original. See Hooks v. Neighbors, 211 N.
C. 382, 385, 190 S. E. 236.
The remedy provided by this section is restricted to the
parties aggrieved by the judgment or order sought to be
set aside, and the superior court has no power to set aside
a judgment or order once rendered upon motion of a stran-
ger to the cause. In re Hood, 208 N. C. 509, 511, 181 S.
[18
E. 621, citing Smith v. New Bern, 73 N. C. 303; Edwards
v. Phillips, 91 N. C. 355.
HI. APPLICATION OF THE PRINCIPLES.
A. Neglect of Party.
Absence from Trial. —
Where it appears that a party was in the courtroom at
the time the court announced that motions in his case would
be heard the following day, his motion to set aside the or-
der made on the day stipulated on the ground of excusable
neglect is properly denied. Abernethy v. First Security
Trust Co., 211 N. C. 450, 190 S. E. 735.
Failure to Defend after Denial of Motion for Continuance.
—Where the trial court finds that defendants and their at-
torney were present in court, that defendants' motion for a
continuance was refused, and that defendants and their at-
torney thereupon left the court room without definite agree-
ment with the court or opposing counsel, and did not re-
turn to defend the case, and that both defendants and their
attorney had failed to exercise due diligence, the court's
refusal of the motion to set aside the judgment will be af-
firmed on appeal. Carter v. Anderson, 208 N. C. 529, 181
S. E. 750.
IV. PLEADING AND PRACTICE.
Discretion of Judge Not Reviewable on Appeal.—
The findings of fact by the trial court upon the hearing
of a motion to set aside a judgment for excusable neglect
are conclusive on appeal when supported by any competent
evidence. Carter v. Anderson, 208 N. C. 529, 181 S. E- 750.
§ 614. Where and how docketed; lien.
I. IN GENERAL.
Applied in Equitable Life Assur. Soc. v. Russos, 210 N.
C. 121, 185 S. E. 632.
Cited in Crow v. Morgan, 210 N. C. 153, 185 S. E. 668.
II. CREATION OF THE LIEN AND PRIORITIES.
A. Sufficiency.
1. Realty.
Docketing First in County of Rendition.— In accord with
original. See Essex Inv. Co. v. Pickelsimer, 210 N. C. 541,
187 S. E. 813.
§ 618. Payment by one of several; transfer to
trustee for payor.
Right to contribution among joint tort-feasors exists solely
by provision of this section. Lumbermen's Mut. Cas. Co.
v. United States Fidelity, etc., Co., 211 N. C. 13, 188 S. E.
634.
Section Does Not Apply to Insurers of Tort-Feasors. — An
insurer of one joint tort-feasor paying the judgment recov-
ered against both joint tort-feasors is not entitled to equi-
table subrogation as against the insurer of the other tort-
feasor, there being no relation between the tort-feasors out-
side the provision of the statute upon which the doctrine of
equitable subrogation can be based, and the insurers of the
tort-feasors not coming within the provision of the statute
in regard to contribution. Lumbermen's Mut. Cas. Co. v.
United States Fidelity, etc., Co., 211 N. C. 13, 188 S. E.
634.
Since the liability of insurance carriers of tort-feasors is
contractual and not founded on tort, where no judgment had
been recovered against such a carrier by any of the par-
ties to an action, it was held that this section was inappli-
cable as by its express terms it applies only to joint tort-
feasors and to joint judgment debtors. Gaffney v. Lumber-
men's Mut. Cas. Co., 209 N. C. 515, 184 S. E. 46; Lumber-
man's Mut. Cas. Co. v. United States Fidelity, etc., Co.,
211 N. C. 13, 188 S. E. 634.
Defendants May File Cross Action to Join Others as Joint
Tort-Feasors. — Defendants in an action to recover for neg-
ligent injury are entitled, under this section to have other
defendants joined with them upon filing a cross action
against such other defendants, alleging that such defend-
ants were joint tort-feasors with them in causing the in-
jury. Mangum v. Southern Ry. Co., 210 N. C. 134, 185 S.
E. 644.
Section Inapplicable Where Defendant Alleges Sole Lia-
bility of Codefendant. — Where the defendant had another
party joined as codefendant, and filed answer denying neg-
ligence on his part and alleging that the negligence of his
codefendant was the sole proximate cause of the injury in
suit, but demanding no relief against his codefendant, it
was held that the demurrer of the party joined should have
been sustained as neither the complaint nor the answer of
the original defendant alleged any cause of action against
him, this section permitting contribution among joint tort-
feasors, being therefore inapplicable since the answer of the
original defendant alleges sole liability on the part of his
§ 620
CIVIL PROCEDURE
§ 637
codefendant and not joint tort-feasorship. Walker v. Eoy-
all, 210 N. C. 466, 187 S. E. 565.
Cited in Peterson v. McManus, 208 N. C. 802, 182 S'. E. 483.
§ 620. Credits upon judgments.
Amount Paid Plaintiff on Covenant Not to Sue as Credit.
—Where some of defendants, sued as joint tort-feasors, pay-
plaintiff a sum in consideration of a covenant not to sue,
and thereafter the action is prosecuted against the other
defendants, and judgment recovered against them, the de-
fendants against whom judgment was entered are entitled
to have the judgment credited with the amounts paid by
the other defendants for the covenant not to sue upon the
motion made prior to execution, the motion coming within
the spirit if not the letter of this section. Brown v. Nor-
folk Southern R. Co., 208 N. C. 423, 181 S. E. 279.
§ 622(a). Cancellation of judgments discharged
through bankruptcy proceedings. — When a ref-
eree in bankruptcy furnishes the clerk of the su-
perior court of any county in this state a writ-
ten statement or certificate to the effect that a
bankrupt has been discharged, indicating in said
certificate that the plaintiff or judgment creditor
in whose favor judgments against the defendant
bankrupt are docketed in the office of the clerk
of the superior court have received due notice as
provided by law from the said referee, and that
said judgments have been discharged, it shall be
the duty of the clerk of the superior court to file
said certificate and enter a notation thereof on the
margin of said judgments.
This section shall apply to judgments of this
kind already docketed as well as to future judg-
ments of the same kind.
This section shall not apply to pending litiga-
tion with reference to the authority of the clerk
of the superior court to make such notation.
For the filing of said instrument or certificate
and making new notations the clerk of the supe-
rior court shall be paid a fee of one dollar ($1.00).
(1937, c. 234, ss, 1-4.)
Editor's Note.— It appears that the effect of filing the cer-
tificate as provided by this section is to give notice of the
inefHcacy of the judgment to attach as a lien after the bank-
ruptcy; not to give notice that the judgment is no lien at
all, for it may have become a lien before the bankruptcy. 15
N. C. Eaw Rev., No. 4, p. 336.
Art. 24. Confession of Judgment
§ 623. When and for what.
Applied in Davis v. Cockman, 211 N. C. 630, 191 S. E.
322.
§ 624. Debtor to make verified statement.
Section Strictly Construed. —
Where the statutory requirements with respect to the
form and contents of the statement have been fully com-
plied with, as in the instant case, the court acquires ju-
risdiction, and a judgment by confession, as authorized by
the debtor in the statement, is valid for all purposes.
Cline v. Cline, 209 N. C. 531, 535, 183 S. E. 904.
Applied in Davis v. Cockman, 211 N. C. 630, 191 S. E-
322.
§ 625. Judgment; execution; installment debt.
Failure to Endorse Judgment on Verified Statement Does
Not Affect Validity.— The failure to endorse the judgment
on the verified statement was an irregularity which does not
affect the validity of the judgment, which the entry on the
judgment docket made by the clerk, or under his immedi-
ate supervision, shows was rendered by the court. Cline
v. Cline, 209 N. C. 531, 535, 183 S. E. 904.
Applied in Davis v. Cockman, 211 N. C. 630, 191 S. E.
322.
Art. 25. Submission of Controversy
without Action
§ 626. Submission, affidavit, and judgment.
Applied in Powell v. Hood, 211 N. C. 137, 189 S. E. 483;
Park View Hospital Ass'n v. Peoples Bank, etc., Co., 211
[1
N. C. 244, 189 S. E. 766; St. Louis Union Trust Co. v. Fos-
ter, 211 N. C. 331, 190 S. E. 522; High Point v. Clark, 211
N. C. 607, 191 S. E. 318.
Cited in Swain County v. Welch, 208 N. C. 439, 181 S. E-
321; North Carolina Mtg. Corp. v. Morgan, 208 N. C. 743,
182 S. E. 450; Benson v. Johnston County, 209 N. C. 751,
185 S. E- 6; Tucker v. Almond, 209 N. C. 333, 183 S. E.
407; Daly v. Pate, 210 N. C. 222, 186 S. E. 348; Lawrence
v. Shaw, 210 N. C. 352, 186 S. E. 504; Braak v. Hobbs, 210
N. C. 379, 186 S. E. 500; Morrow v. Durham, 210 N. C.
564, 187 S. E. 752; Gurganus v. Bullock, 210 N. C. 670, 188
S. E. 85; Hardware Mut. Fire Ins. Co. v. Stinson, 210 N.
C. 69, 185 S. E. 449; Mecklenburg County v. Sterchi Bros.
Stores, 210 N. C. 79, 185 S. E- 454.
Art. 25A. Declaratory Judgments
§ 628(a). Courts of record permitted to enter
declaratory judgments of rights, status and other
legal relations.
In General.— This article does not extend to the submis-
sion of the theoretical problem or a mere abstraction, and
it is no part of the function of the courts, in the exercise
of the judicial power vested in them by the constitution, to
give advisory opinions, or to answer moot questions, or to
maintain a legal bureau for those who may chance to be in-
terested, for the time being, in the pursuit of some aca-
demic matter. Allison v. Sharp, 209 N. C. 477, 481, 184 S.
E. 27, citing Poore v. Poore, 201 N. C. 791, 161 S. E. 532;
Carolina Power, etc., Co. v. Iseley, 203 N. C. 811, 167 S.
E. 56.
This article affords a means of testing the validity of a
statute requiring persons presenting themselves for regis-
tration to prove to the satisfaction of the registrar their
ability to read or write any section of the Constitution (§
5939), plaintiffs and all the people of the state being vitally
affected by the statute in controversy. Allison v. Sharp,
209 N. C. 477, 184 S. E- 27.
But an ex parte proceeding to determine petitioner's ra-
cial status is not within its scope. Allison v. Sharp, 209
N. C. 477, 481, 184 S. E- 27, citing In re Eubanks, 202 N.
C. 357, 162 S. E. 769.
Applied in Carr v. Jimmerson, 210 N. C. 570, 187 S. E.
800.
Cited in Corl v. Corl, 209 N. C. 7, 182 S. E- 725.
§ 628(b). Courts given power of construction
of all instruments.
See the note to § 628(a) in this Supplement.
§ 628(c). Who may apply for a declaration.
Applied in Rierson v. Hanson, 211 N. C. 203, 189 S. E.
502.
§ 628(h). Parties.
See the note to § 628(a) in this Supplement.
SUBCHAPTER IX. APPEAL
Art. 26. Appeal
§ 634. Clerk to transfer issues of fact to civil
issue docket.
Section Governs Appeals from Judgment of Clerk in
Dower Proceedings. — In dower proceedings issues of law
and of fact were raised on the pleadings which had been
filed before the clerk. At the hearing of the proceeding
by the clerk, the parties waived a trial by jury of the is-
sues of fact, and filed with the clerk a statement on facts
agreed. On these facts the clerk rendered a judgment ad-
verse to the plaintiff. The plaintiff excepted to the judg-
ment, and appealed to the Superior Court in term time. It
was held that this section and not § 635, was applicable to
plaintiff's appeal from the judgment of the clerk of the
Superior Court, and there was error in the order of the
judge dismissing plaintiff's appeal on his finding that
plaintiff had failed to perfect her appeal, as required by
§ 635. McLawhorn v. Smith, 211 N. C. 513, 518, 191 S.
E. 35.
§ 635. Duty of clerk on appeal.
See note to the preceding section.
§ 637. Judge determines entire controversy;
may recommit.
Quoted in Sharpe v. Sharpe, 210 N. C. 92, 185 S. E- 634.
§ 638
CIVIL PROCEDURE
§ 711
§ 638. Appeal from superior court judge.
II. APPEAL IN GENERAL.
A. General Considerations.
Cited in State v. Williams, 209 N. C. 57, 182 S. E- 711.
§ 641. When appeal taken.
Notice of Appeal from Assessment. — Since the docketing
of an assessment under § 218(c) (13) has the force and
effect of a judgment, notice of appeal from such assess-
ment by a stockholder must be given within the time re-
quired by this section. In re Citizens' Bank, 209 N. C.
216, 183 S. K. 410.
§ 643. Case on appeal; statement, service, and
return.
II. GENERAL CONSIDERATIONS— COUNTER CASE.
Record Imports Verity. —
In accord with original. See Abernethy v. Burns, 210
N. C. 636, 188 S. E. 97; State v. Stiwinter, 211 N. C. 278,
189 S. E. 868.
Effect of Failure to Serve Counter Case. —
In accord with original. See Abernethy v. Burns, 210
N. C. 636, 188 S. E. 97.
No Return of Appellant's Case. —
In accord with original. See Coral Gables v. Ayres, 208
N. C. 426, 181 S. E. 263.
III. REQUISITES OF CASE ON APPEAL— EX-
CEPTIONS.
Concise Statement of Case. —
Although case on appeal was not a concise statement of
case it was held that the appeal would be allowed as a dis-
missal would have been a denial of justice. Messick v.
Hickory, 211 N. C. 531, 191 S. E- 43.
V. SERVICE OF CASE AND COUNTER-CASE.
A. Necessity and Mode of Service.
Order Allowing Time for Serving Gountercase Does Not
Affect Rule Prescribing Time of Appeal. — An order of the
superior court enlarging the time for serving statement of
case on appeal and exceptions thereto or countercase, does
not affect the rules of court prescribing the term to which
the appeal must be taken and the time within which the
appeal must be docketed. State v. Moore, 210 N. C. 459,
187 S. E. 586,
§ 644. Settlement of case on appeal.
Applied in Messick v. Hickory, 211 N. C. 531, 191 S. E. 43.
§ 649. Appeals in forma pauperis; clerk's fees. —
Provided, that where the judge of the superior
court or the clerk of the superior court has made
an order allowing the appellant to appeal as a
pauper and the appeal has been filed in the su-
preme court, and an error or omission has been
made in the affidavit or certificate of counsel, and
the error is called to the attention of the court
before the hearing of the argument of the case,
the court shall permit an amended affidavit or
certificate to be filed correcting the error or
omission. (Rev., s. 597; Code, s. 553; 1889, c. 161;
1873-4, c. 60; 1907, c. 878; 1937, c. 89.)
As to the effect of the amendment, see 15 N. C. Law Rev.,
No. 4, p. 332.
Editor's Note. — -The 1937 amendment directed that the above
provision be added at the end of this section. The rest of
the section, not being affected by the amendment, is not set
out.
Statement of Attorney. —
In accord with original. See Eupton v. Hawkins, 210 N.
C. 658, 188 S. E. HO.
Defective Affidavit Can Not Be Cured after Five Day Pe-
riod.— An affidavit which is defective in that it fails to aver
that appellant is advised by counsel learned in the law
that there is error of law in the judgment may not be cured
by an additional affidavit filed after the expiration of the
five days prescribed by the statute, or one filed after the
date for docketing the appeal. Berwer v. Union Cent. Life
Ins. Co., 210 N. C. 814, 188 S. E- 618.
§ 650. Undertaking to stay execution on money
judgment.
Effect of Appeal. — Where from an order of the Superior
Court requiring plaintiff to pay alimony pendente lite and
counsel fees, plaintiff appeals to the Supreme Court and
the cause is thereto removed, the Superior Court is there-
after without jurisdiction to order the sale of plaintiff's
land to satisfy the judgment or the execution of a stay
bond. Vaughan v. Vaughan, 211 N. C. 354, 190 S. E. 492.
§ 654. Docket entry of stay.
Cited in Queen v. DeHart, 209 N. C. 414, 184 S. E. 7.
§ 661. Appeal from justice docketed for trial
de novo.
Same — Judge Cannot Allow Docketing Later. — Under this
section an appeal from justice court must be docketed at
that term of the superior court which begins more than ten
days after judgment in justice court, and the superior court
has no right to dispense with such requirement. Helsabeck
v. Grubbs, 171 N. C. 337, 88 S. E. 473; Barnes v. Saleeby, 177
N. C. 256, 98 S. E. 708. Formerly the rule was different.
See West v. Reynolds, 94 N. C. 333.
SUBCHAPTER X. EXECUTION
Art. 27. Execution
§ 660. Issued from and returned to court of ren-
dition.
This section and § 711 must be construed in pari materia
with other statutes relating to the same matter. Essex Inv.
Co. v. Pickelsimer, 210 N. C. 541, 187 S. E. 813. See §§
851, 857, 859, and 1608(t).
§ 673. Against the person.
Execution for Conversion. —
Under this section an affirmative answer to an issue es-
tablishing that defendant had retained and converted to his
own use, in violation of the terms of the contract of as-
signment with plaintiff, property belonging to plaintiff, is
sufficient to support a judgment that execution against the
person of defendant issue upon application of plaintiff upon
return of execution against the property unsatisfied, intent
of defendant in doing the acts constituting a breach of
trust being immaterial, and a specific finding of fraud be-
ing unnecessary. East Coast Fertilizer Co. v. Hardee, 211
N. C. 653, 191 S. E. 725.
§ 678. Sale of trust estates; purchaser's title.
Application to Certain Trusts Only. —
In accord with original. See Chinnis v. Cobb, 210 N. C.
104, 185 S. E. 638.
Art. 28. Execution and Judicial Sales
§ 687(b). Minimum notice required in all sales.
Applied in little v. Harrison, 209 N. C. 360, 183 S. E.
293.
§ 690. Sale days; place of sale; ratification of
prior sales. — ■
All sales or resales of real property heretofore
made under order of the court or under the power
of foreclosure contained in any deed of trust or
mortgage on any day other than the first Monday
in any month are hereby validated, ratified, and
confirmed: Provided, this act shall not affect
pending litigation; and provided further, that
sales or resales of real property made under the
power of foreclosure contained in any deed of
trust or mortgage shall not be required to be
made on any particular day of the week or month.
(Rev., s. 643; Code, s. 454; 1876-7, c. 216, ss. 2,
3; 1883, c. 94, ss. 1, 2; 1931, c. 23; 1937, c. 26.)
Editor's Note.— The 1937 amendment added the above pro-
vision at the end of this section. The rest of the section,
not being affected by the amendment, is not set out.
Art. 30. Supplemental Proceedings
§ 711. Execution unsatisfied, debtor ordered to
answer.
Part of Judgment Owned by Person Other Than Defend-
ant Can Not Be Attached.— In Armour Fertilizer Works
v. Newbern, 210 N. C. 9, 185 S. E. 471, it was held that at
the time of the rendition of a judgment another person
was the equitable owner of a stipulated part thereof, so
defendant had no legal or equitable interest in such part,
and plaintiff was not entitled to attach such part in the
supplemental proceedings instituted by it against defend-
ant.
[20
§ 721
CIVIL PROCEDURE
§ 860
§ 721. Debtor's property ordered sold.
Earnings for Sixty Days. —
Delete the citation of Wilmington v. Sprunt, appearing
in the first paragraph under this catchline, and substitute
in lieu thereof: 114 N. C. 310, 314.
SUBCHAPTER XI. HOMESTEAD AND
EXEMPTIONS
Art. 31. Property Exempt from Execution
§ 729. Conveyed homestead not exempt.
This section seems to deal with "allotted homesteads."
See Chadbourn Sash, etc., Co. v. Parker, 153 N. C. 130
69 S. E, 1; Cheek v. Walden, 195 N. C. 752, 143 S. E. 465
Duplin County v. Harrell, 195 N. C. 445, 142 S. E- 481
Equitable Life Assur. Soc. v. Russos, 210 N. C. 121, 124,
185 S. E. 632.
§ 737. Personal property appraised on demand.
Same — Time of Allotment. —
In accord with second paragraph in original. See Crow
v. Morgan, 210 N. C. 153, 185 S. E. 668.
Property from. Which Exemption Is Made. —
In accord with original. See Crow v. Morgan, 210 N.
C. 153, 185 S. E. 668.
Both Creditor and Debtor Are Entitled to Have Pro-
cedure Conform to Statute.— In the allotment of the per-
sonal property exemption, the creditor as well as the debtor
is entitled to have the procedure conform to the constitu-
tional provisions and the statutes enacted pursuant thereto.
Crow v. Morgan, 210 N. C. 153, 185 S. E. 668.
§ 740. Exceptions to valuation and allotment;
procedure.
Applied in Crow v. Morgan, 210 N. C. 153, 185 S. E- 668.
§ 751. Forms.
Cited in Crow v. Morgan, 210 N. C. 153, 185 S. E. 668.
SUBCHAPTER XII. SPECIAL
PROCEEDINGS
Art. 32. Special Proceedings
§ 752. Chapter applicable to special proceed-
ings.
Abandonment of Proceedings. — By virtue of this section
petitioners in condemnation proceedings may abandon the
proceedings and take a voluntary nonsuit even after the
commissioners have made their appraisal and report and
petitioners have filed exceptions thereto, provided petition-
ers abandon the proceedings before confirmation of the
commissioners' report. Nantahala Power, etc., Co. v. Whit-
ing Mfg. Co., 209 N. C. 560, 184 S. E. 48.
§ 753. Contested special proceedings; com-
mencement; summons.
Less Than Ten Days' Notice Given. — A judgment under
a service of less than ten days, although irregular, is valid
until reversed or vacated by a direct action, and cannot be
collaterally attacked. Nail v. McConnell, 211 N. C. 258,
261, 190 S. E. 210.
§ 758. Defenses pleaded; transferred to civil is-
sue docket; amendments.
Clerk Must Transfer Case Where Equitable Defense
Pleaded.—
In Smith v. Johnson, 209 N. C. 729, 184 S. E- 486, it was
held that defendant could plead the equitable relief of mu-
tual mistake and when this plea was filed the clerk prop-
erly transferred the cause to the civil issue docket.
SUBCHAPTER XIII. PROVISIONAL
REMEDIES
Art. 34. Attachment
§ 798. In what actions attachment granted.
Origin of the Writ.—
In accord with original. See Chinnis v. Cobb, 210 N. C.
104, 185 S. E. 638.
Nature and Function. —
In accord with original. See Chinnis v. Cobb, 210 N. C.
104, 185 S. E. 638.
Only property which is subject to execution is attachable.
Chinnis v. Cobb, 210 N. C. 104, 109, 185 S. E. 638, citing
Willis v. Anderson, 188 N. C. 479, 124 S. E. 834.
Attachment may be levied on land as under execution, and
whatever interest the debtor has subject to execution may
be attached, but the debtor must have some beneficial in-
terest in the land. Chinnis v. Cobb, 210 N. C. 104, 109, 185
S. E. 638, citing Willis v. Anderson, 188 N. C. 479, 124 S.
E. 834.
Interest in Land under Spendthrift Trust Not Subject to
Attachment. — Plaintiff attached property which had be-
longed to defendant's mother prior to her death. Thereafter
the will was probated which devised the property in trust
for defendant under a spendthrift trust. It was held that
defendant took nothing as heir at law of her mother, and
her interest in the land under the spendthrift trust was not
subject to attachment, and the fact that the attachment
was attempted to be levied prior to the probate of the will
created no lien on the land. Chinnis v. Cobb, 210 N. C.
104, 185 S. E. 638.
Applied in Banner v. Carolina Button Corp., 209 N. C.
697, 184 S. E. 508.
§ 815. Defendant's undertaking.
Discharge of Surety. —
When the surety signs a bond under this section, he en-
ters into the obligation with reference to the cause as it
then stands, so when a new element of liability is intro-
duced by an amendment, the surety is discharged. Rush-
ing v. Ashcraft, 211 N. C. 627, 629, 191 S. E- 332.
Art. 35. Claim and Delivery
§ 830. Claim for delivery of personal property.
Cited in C. I. T. Corp. v. Watkins, 208 N. C. 448, 181 S.
E. 270.
§ 833, Plaintiff's undertaking.
Measure of Damages Where Property Can Not Be Re-
turned.— Where defendant recovers judgment and the prop-
erty cannot be returned to him, the measure of damages
is the value of the property at the time of its seizure, and
an instruction that defendant, from whom an automobile
had been taken in claim and delivery by the assignor of a
chattel mortgage thereon, would be entitled to recover, if
plaintiff's seizure of the property were wrongful, the amount
paid on the purchase price of the car less the value of the
use obtained from the car by defendant, is held error. C.
I. T. Corp. v. Watkins, 208 N. C. 448, 181 S. E. 270.
Art. 36. Injunction
§ 851. What judges have jurisdiction.
Appointment of Receiver by County Court.— A general
county court is without jurisdiction to appoint a receiver
for a judgment debtor having property in another county
against whom judgment is rendered in the county court.
Essex Inv. Co. v. Piekelsimer, 210 N. C. 541, 187 S. E. 813.
§ 858. To restrain collection of taxes.
Illegal or Invalid Tax. —
Unless otherwise provided by statute, injunction at the
instance of a taxpayer is regarded as an appropriate rem-
edy to resist the levy of an invalid assessment, or to re-
strain the collection of an illegal tax. Barbee v. Board of
Com'rs, 210 N. C. 717, 719, 188 S. E. 314. See Reynolds v.
Asheville, 199 N. C. 212, 154 S. E. 85.
Art. 37. Receivers
§ 859. What judge appoints.
Quoted in Essex Inv. Co.
187 S. E. 813.
Piekelsimer, 210 N. C. 541,
§ 860. In what cases appointed.
The power to appoint a receiver is inherent in a court
of equity. The change to the Code did not abridge, but
enlarged, it. In re Penny, 10 F. Supp. 638, 640.
A receiver will not be appointed where there is a full
and adequate remedy at law. In re Penny, 10 F. Supp.
638, 640'.
Unless Defense of Adequate Remedy at Law Is Waived.
—A simple contract creditor may obtain, in proper cases,
equitable relief where answer admits indebtedness and con-
sents to appointment of receiver, waiving the defense of
adequate remedy at law. In re Penny, 10 F. Supp. 638,
640, citing Newberry v. Davison Chemical Co., 65 F. (2d)
724; Harkin v. Brundage, 276 U. S. 36, 51, 48 S. Ct. 268
72 L. Ed. 457.
Where the debtor and one small creditor agree to have
a receiver appointed and to restrain all other creditors
from doing anything, a receivership under such circum-
stances is an agency for the defendant, and the title of
[21]
§ 861
CIVIL PROCEDURE
§ 900
Such a receiver to the assets of the bankrupt debtor is
merely colorable and he may be required to turn over as-
sets to trustee in bankruptcy. In re Penny, 10 F. Supp.
638, 641.
Exhaustion of Remedy at Law. —
A receiver of defendant's property will not be appointed
at the request of a judgment creditor without more being
shown where he has the remedy of execution against the
property. Scoggins v. Gooch, 211 N. C. 677, 191 S. E. 750.
Before Judgment. —
In order to appoint a receiver before judgment under
this section, it must appear that claimant has an appar-
ent right to property which is the subject of the action
and the property or the rents are in danger of being lost,
Witz v. Gray, 116 N. C. 48, 20 S. E. 1019; Pearce v. El-
well, 116 N. C. 595, 21 S. E. 305; and it is generally nec-
essary to show that the party in possession is insolvent,
Ellington v. Currie, 193 N. C. 610, 137 S. E- 869. In re
Penny, 10 F. Supp. 638, 640.
Where an executor's petition to sell lands alleges merely
that personalty is insufficient to pay debts, plaintiff exec-
utor is not entitled to the appointment of a receiver for
the lands on the ground that the action cannot be tried
until a subsequent term, and that the devisee had refused
to pay taxes, the allegation merely that the personalty is
insufficient failing to show plaintiff executor's apparent
right to the relief as required for the appointment of a
receiver under the provisions of subsection (1) of this sec-
tion, especially when the devisee denies the allegation that
the personalty is insufficient. Neighbors v. Evans, 210 N.
C. 550, 187 S. E- 796.
County Court Can Not Appoint Receiver after Judgment
Docketed in Superior Court. — After the judgment of a gen-
eral county .court is docketed in the Superior Court of the
county the county court has no further jurisdiction of the
case and may not thereafter hear a motion for the appoint-
ment of a receiver for the judgment debtor. Essex Inv. Co.
v. Pickelsimer, 210 N. C. 541, 187 S. E- 813.
§ 861. Appointment refused on bond being
given.
Applied in Little v. Wachovia Bank, etc., Co., 208 N. C.
726, 182 S'. E. 491.
SUBCHAPTER XIV. ACTIONS IN
PARTICULAR CASES
Art. 39. Mandamus
§ 866. Begun by summons and verified com-
plain;.
III. WHEN MANDAMUS WILL LIE.
A. General Rules.
Mandamus will not lie except to enforce a clear legal
right against a party under legal obligation to perform the
act sought to be enforced. Sovereign Camp, W. O. W.
v. Board of Com'rs, 208 N. C. 433, 181 S. E- 339.
§ 867. For money demanded.
The 1933 amendment to this section as constitutional,
since it does not impair the obligations of a contract, U. S.
Const., Art. 1, sec. 10; N. C. Const., Art. 1, sec. 17, the
effect of the statute being merely to alter the method of
procedure in which there can be no vested right. Sovereign
Camp, W. O. W. v. Board of Com'rs, 208 N. C. 433, 181 S.
E. 339.
Necessity for Judgment Prior to Action to Enforce Money
Demand. — Where plaintiff alleged ownership of certain
county bonds, and sought mandamus to compel the county
to levy taxes sufficient to pay same the effect of the ac-
tion is to enforce a money demand, which can not be main-
tained under this section as amended by Public Laws 1933,
unless the claim has been reduced to judgment. Sovereign
Camp, W. O. W. v. Board of Com'rs, 208 N. C. 433, 181
S. E. 339.
Art. 40. Quo Warranto
§ 869. Writs of sci. fa. and quo warranto abol-
ished.
Applied in Stephens v. Dowell, 208 N. C. 555, 181 S. E-
629; Swaringen v. Poplin, 211 N. C. 700, 191 S. E. 746.
§ 870. Action by attorney-general.
Determining Title to Public Office. — One of the chief pur-
poses of quo warranto or an information in the nature of
quo warranto is to try the title to an office. This is the
method prescribed for settling a controversy between rival
claimants when one is in possession of the office under a
claim of right and in the exercise of official functions or the
performance of official duties; and the jurisdiction of the
Superior Court in this behalf has never been abdicated in
favor of the board of county canvassers or other officers of
an election. Swaringen v. Poplin, 211 N. C. 700, 702, 191
S. E. 746, citing Harkrader v. Lawrence, 190 N. C. 441, 130
S. E. 35.
Quo Warranto Is Not Proper Remedy to Test Validity of
Tax.— Quo warranto is the sole remedy to test the validity
of an election to public office, but not to test the validity
of a tax even though it is levied under the authority of a
popular election. Barbee v. Board of Com'rs, 210 N. C.
717, 188 S. E. 314.
§ 871. Action by private person with leave.
Cited in Barbee v. Board of Com'rs, 210 N. C. 717, 188
S. E. 314.
§ 881. Service of summons and complaint.
If the copy of summons left at defendant's residence be
not essentially a true copy of the original, then it would
be insufficient under the statute, for only by virtue of this
section, is substituted service allowable in this way. Mc-
Leod v. Pearson, 208 N. C. 539, 540, 181 S'. E. 753.
If the copy of summons left at defendant's residence be
a true copy of the original, but was neither signed by the
clerk nor under seal, it is fatally defective. Id.
SUBCHAPTER XV. INCIDENTAE PRO-
CEDURE IN CIVIL ACTIONS
Art. 43. Compromise
§ 896. Tender of judgment.
Costs— When Taxed on Plaintiff.— Where defendant ten-
ders judgment in its answer for the amount recovered by
plaintiff, which tender is refused by plaintiff upon her
claim that she is entitled to recover a larger amount, the
costs are properly taxed against plaintiff. Webster v.
Wachovia Bank, etc., Co., 208 N. C. 759, 182 S. E- 333.
Art. 44. Examination of Parties
§ 899. Action for discovery abolished.
Substitute for Bill of Discovery. —
In accord with original. See McGraw v. Southern Ry.
Co., 209 N. C. 432, 184 S. E. 31.
Applied in Enloe v. Charlotte Coca-Cola Bottling Co.,
210 N. C. 262, 186 S. E. 242.
Cited in McGraw v. Southern Ry. Co., 209 N. C. 432,
184 S'. E. 31.
§ 900. Adverse party examined.
Construction. —
In accord with original. See McGraw v. Southern Ry.
Co., 209 N. C. 432, 439, 184 S. E- 31; Douglas v. Buchanan,
211 N. C. 664, 191 S. E. 736.
Substitute for Bill of Discovery. —
In accord with original. See Bohannon v. Wachovia
Bank, etc., Co., 210 N. C. 679, 188 S. E. 390; Douglas v.
Buchanan, 211 N. C. 664, 191 S. E. 736.
Leave of Court Unnecessary. —
In accord with original. See Douglas v. Buchanan, 211
N. C. 664, 191 S. E- 736.
Right to Cross- Examine Witnesses Is Available Only at
Time of Examination. — Where the examination of witnesses
prior to trial is had under the provisions of this and the
following sections and the testimony elicited from the wit-
nesses read at the trial, the party against whom such evi-
dence is introduced is not entitled as a matter of right to
cross-examine such witnesses, although they are present
at the trial, the right to object to the competency of the
evidence and cross-examine the witnesses being available
to the party only at the time the examination of the wit-
nesses is had. McGraw v. Southern Ry. Co., 209 N. C.
432, 184 S. E. 31.
Nonresidence. —
Where an order striking an answer under § 903 was
void because of an alternative condition attached the ques-
tion of whether the court had the power to order the in-
dividual defendant, who had moved to another state, to
appear under this section is not presented for decision.
Hagedorn v. Hagedorn, 210 N. C. 164, 185 S. E. 768.
Appeal from Refusal to Set Aside Order for Examina-
tion Is Not Premature. — An appeal from the refusal of the
court to set aside an order of the clerk for the examina-
tion of an adverse party under this section was held not
premature, the appeal presenting the question of whether
plaintiff's affidavit upon which the order was made states
[22]
§ 901
CLERK OF SUPERIOR COURT
§ 962(b)
facts sufficient to constitute a cause of action. Bohannon
v. Wachovia Bank, etc., Co., 210 N. C. 679, 188 S. E. 390.
§ 901. Before trial in his own county.
Examination at Option of Party Claiming. —
In accord with original. See McGraw v. Southern Ry.
Co., 209 N. C. 432, 184 S. E. 31.
Cited in Bohannon v. Wachovia Bank, etc., Co., 210 N.
C. 679, 188 S'. E. 390.
§ 903. Compelling attendance of party for ex-
amination before trial.
May Be Read by Either Party.—
In accord with original. See McGraw v. Southern Ry.
Co., 209 N. C. 432, 184 S. E. 31.
Entire Examination Must Be Read. — Where a party
reads in evidence an examination of an adverse party
had under the provisions of § 899 et seq., he must read
the whole of the examination, and the admission in evi-
dence of the direct examination of such party while omit-
ting the cross-examination is reversible error. Enloe v.
Charlotte Coca-Cola Bottling Co., 210 N. C. 262, 186 S. E-
242.
§ 903. Party's refusal to testify; penalty.
In Hagedorn v. Hagedorn, 210 N. C. 164, 165, 185 S.
E> 768, the court was precluded from deciding the power
to strike out an answer under authority of this section,
because of the alternative condition attached to the or-
der, which rendered it void.
§ 904. Rebuttal of party's testimony.
Quoted in McGraw v. Southern Ry. Co., 209 N. C. 432,
184 S. E. 31.
Art. 46. Notices
§ 921. Officer's return evidence of service.
Officer's Return Is Prima Facie Correct. —
In accord with second paragraph of original. See Pen-
ley v. Rader, 208 N. C. 702, 704, 182 S. E- 337.
Where the sheriff's return was regular upon its face, but
each plaintiff testified that service was not made on him,
but did not testify as to whether service was made on the
other plaintiff, and there was no evidence corroborating
plaintiffs' testimony, defendant sheriff's motion for judg-
ment as of nonsuit was properly granted. Penley v. Ra-
der, 208 N. C. 702, 182 S. E. 337.
Where the officer's return shows service it is deemed
prima facie correct under this section and the remedy of
defendant asserting nonservice is by motion in the cause
upon a showing of nonservice by clear and unequivocal
proof. Dunn v. Wilson, 210 N. C. 493, 187 S. E. 802.
CHAPTER 13
CLERK OF SUPERIOR COURT
Art. 1(A). Assistant Clerks
§ 934(a). Appointment; oath; powers and ju-
risdiction; responsibility of clerks.
While the clerk of the superior court is a constitutional
officer, the duties of clerks are prescribed by statute, and
the legislature may prescribe that such duties may be per-
formed by assistant clerks as in this and the following
sections, and an attack upon the appointment of a guard-
ian by an assistant clerk on the ground that the statute
delegating the powers of clerks to assistant clerks is un-
constitutional is untenable. In re Barker, 210 N. C. 617,
188 S. E. 205.
Art. 3. Powers and Duties
§ 938. Powers enumerated.
Legislature May Take Away or Modify Powers.— The
powers and duties of clerks enumerated in this section are
given and fixed by legislative enactment, and there is no
constitutional barrier to the legislature's taking away,
adding to, or modifying them; or authorizing them to be
exercised and performed by another. In re Barker, 210
N. C. 617, 619, 188 S. E. 205.
Applied in Braddy v. Praff, 210 N. C. 248, 186 S. E. 340.
§ 939. Disqualification to act.
Reference.— As to the purpose of the 1935 amendment, see
13 N. C. Law Rev., No. 4, p. 370.
§ 952. To keep books; enumeration. —
4. Cross-index to judgments, which shall con-
tain a direct and reverse alphabetical index of all
final judgments in civil actions rendered in the
court, with the dates and numbers thereof, and
also of all final judgments rendered in other
courts and authorized by law to be entered on
his judgment docket. Pending the docketing of
judgments in the judgment docket and cross-in-
dexing the same as herein provided for, the clerk
shall keep a temporary index to all judgments
entered in his said court or received in his court
from any court for docketing; and he shall im-
mediately index all judgments rendered in his
court or received in his court for docketing, and
index the names of all parties against whom judg-
ments have been rendered or entered alphabeti-
cally in said temporary index, and which tempo-
rary index shall be preserved and open to the
public until said judgments shall have been dock-
eted in the judgment docket and cross-indexed in
the permanent cross-index to judgments, as here-
in provided for.
(1937, c. 93.)
Editor's Note.— The 1937 amendment added the second sen-
tence of subsection 4. The rest of the section, not being af-
fected by the amendment, is not set out.
By virtue of the amendment, searchers of real property
titles may examine the temporary index of judgments and
ascertain in advance whether or not judgments have been
rendered which, when docketed will affect the title to the
reality in which their clients are interested. The new law
will thus tend to facilitate real estate loans and transfers.
15 N. C. Law Rev., No. 4, p. 337.
Recording of Verified Report Purports Verity. — Plaintiff,
purchaser of the real property at execution sale of a judg-
ment against the devisee, offered in evidence, as proof of
payment and that title had vested in the devisee, a special
report, duly verified, filed by the executrix stating that
the devisee had paid the estate the amount stipulated by
the will. This special, verified report of the executrix was
a document authorized and required to be recorded, was
relevant to the issue, and was competent in evidence, its
recording purporting verity and objection to its admission
on the ground of hearsay in that it contained a declara-
tion of a person not a party to the action is untenable, the
recorded, verified report being more than a mere declara-
tion by the executrix. Braddy v. Pfaff, 210 N. C. 248, 186
S. E. 340.
Art. 5. Money in Hand; Investments
§ 961(a). Payment of sum due minor insurance
beneficiary. — Where a minor is named as bene-
ficiary in a policy or policies of insurance issued
in a sum not exceeding five hundred ($500.00)
dollars, and the insured dies prior to the majority
of such beneficiary, any sums due on such policy
may be paid to the public guardian or clerk of the
superior court of the county wherein such bene-
ficiary resides, to be administered by such clerk
or public guardian for the benefit of said minor,
and the receipt of the clerk or public guardian
in such cases shall be a full and complete dis-
charge of the company or association for any
sums due under such policy or policies. (1937, c.
201.)
§ 962(b). Investments prescribed; funds from
lands of infants and persons non compos men-
tis.—
(e) North Carolina county or municipal bonds
which are approved by the local government
commission.
(1937, c. 188.)
Editor's Note. — The 1937 amendment substituted _ "local
government commission" for "sinking fund commission"
[23]
§ 970
CORPORATION COMMISSION
§ 1037(d)
formerly appearing in subsection (e). The rest of the sec-
tion, not being affected by the amendment, is not set out.
CHAPTER 15
COMMON LAW
§ 970. Common law declared to be in force.
Extent of Common Law. — So much of the common law
as is not destructive of, repugnant to, or inconsistent with
our form of government, and which has not been repealed
or abrogated by statute or become obsolete, is in full force
and effect in this jurisdiction. State v. Hampton, 210 N.
C. 283, 186 S. E. 251.
The solicitation of another to commit a felony is a crime,
although the solicitation is of no effect, and the crime is
not committed, the common law rule being in effect and
controlling. State v. Hampton, 210 N. C. 283, 186 S. E-
251.
Cited in dissenting opinion, in Wachovia Bank, etc., Co.
v. Jones, 210 N. C. 339, 186 S. E- 335.
CHAPTER 17
CONTEMPT
§ 978. Contempts enumerated; common law re-
pealed.
Quoted, in dissenting opinion, in State v. Perry, 210 N.
C. 796, 188 S. E. 639.
CHAPTER 18
CONTRACTS REQUIRING WRITING
§ 987. Contracts charging representative per-
sonally; promise to answer for debt of another.
Contracts Not within the Statute.—
Where a business run in the name of J. W. J. was in
charge of W. P. J., J. W. J.'s son, and J. W. J. being
desirous of having goods shipped to W. P. J. permitted
them to be shipped in the name of J. W. J. & Son., say-
ing to plaintiff, "you won't lose anything by it," and a
payment on account was made by "J. W. J. & Son,"
this section was held inapplicable. Noland Co. v. Jones,
211 N. C. 462, 190 S. E. 720.
What Determines Nature of Promise.— Whether a prom-
ise is an original one not coming within the provisions of
this section, or a superadded one barred by the statute,
does not depend altogether on the form of expression, but
the situation of the parties, and whether they understood
the promise to be direct or collateral, should also be con-
sidered. Dozier v. Wood, 208 N. C. 414, 181 S. E. 336.
Oral Agreement of Stockholders to Be Responsible for
Merchandise Held to Be an Original Promise.— Defendants
agreed orally to be personally responsible for merchan-
dise shipped to a corporation of which they were the main
stockholders, and which they later took over. It was held
that the agreement was an original promise not coming
within the statute of frauds. Brown v. Benton, 209 N. C.
285, 183 S. E. 292.
The Same Being True of Agreement to Furnish Mer-
chandise for Use on Farm. — Evidence of defendant's states
ments to plaintiff merchant at the time plaintiff agreed to
furnish certain merchandise for use on defendant's farm is
held susceptible of the interpretation that defendant's
promise to pay therefor was an" original promise not com-
ing within this section, and not a superadded one barred by
the statute, and the question of interpretation should have
been submitted to the jury. Dozier v. Wood, 208 N. C.
414, 181 S. E. 336.
Question for Jury as to Whether Original Promise Cov-
ered Second Transaction. — Where evidence tended to show
that defendants ordered two or three cars of lumber, both
defendants being present and promising to be personally
responsible therefor, and after the first car was shipped,
one of defendants went to plaintiff and told him to ship
another car under the same arrangements, it was sufficient
to be submitted to the jury on the question whether the
original promise of both defendants, made when both were
present, covered the second car as well as the first. Brown
v. Benton, 209 N. C. 285, 183 S. E. 292.
§ 988. Contract for sale of land; leases.
I. IN GENERAL.
Rights of Vendee under Parol Contract.— The vendor, in
a parol contract to convey land, will not be permitted to
evict a vendee who has entered and made improvements,
until the latter has been repaid the purchase money and
compensated for betterments. Union Cent. Life Ins. Co.
v. Cordon, 208 N. C. 723, 182 S. E- 496, 497, citing Vann
v. Newsom, 110 N. C. 122, 14 S. E. 519, and Eaton v.
Doub, 190 N. C. 14, 22, 128 S. E- 494, 498, 40 A. L. R. 273.
II. WHAT CONSTITUTES AN INTEREST IN OR
CONCERNING LAND.
Agreement That Is Not One to Sell or Convey Land.—
Where plaintiff alleged that his vendor agreed to procure
a release of the land from a prior deed of trust upon the
payment by the plaintiff of a note given for the balance of
the purchase price of the land, and secured by a deed of
trust to his vendor, the agreement is not one to sell or
convey land, or any interest in or concerning same, and
does not come within the provisions of this section. Hare
v. Hare, 208 N. C. 442, 181 S. E- 246.
III. SUFFICIENCY OF COMPLIANCE WITH SECTION.
A. In General.
Deed Held to Be a Sufficient Writing.— A deed duly exe-
cuted and acknowledged and found among the valuable
papers of the grantor after his death is a sufficient writ-
ing within the meaning of the statute of frauds of a con-
tract of grantor to convey the lands to the grantees in
consideration of grantees' taking care of grantor for the
remainder of his life. Austin v. MeCollum, 210 N. C.
817, 188 S. E. 646.
CHAPTER 19
CONVEYANCES
Art. 1. Construction and Sufficiency
§ 991. Fee presumed, though word "heirs"
omitted.
Applied in New York Life Ins. Co. v. Lassiter, 209 N.
C. 156, 160, 183 S. E. 616.
Art. 2. Conveyances by Husband and Wife
§ 997. Instruments affecting married woman's
title; husband to execute; privy examination.
II. EXECUTED BY BOTH HUSBAND AND WIFE.
B. Husband's Acknowledgment and Proof Thereof.
It is necessary that a wife's deed be signed by the hus-
band and acknowledged by both husband and wife. Joiner
v. Firemen's Ins. Co., 6 F. Supp. 103, 104.
§ 1003. Wife need not join in purchase-money
mortgage1.
Where Wife of Grantee Acquires No Dower Right. — Where
two deeds of trust are executed and substituted for the orig-
inal purchase money deed of trust, which is canceled, the
wife of the grantee acquires no dower right in the land, the
original debt for the purchase money not having been extin-
guished. Case v. Fitzsimons, 209 N. C. 783, 184 S. E. 818.
CHAPTER 21
CORPORATION COMMISSION; UTILITIES
COMMISSIONER
Art. 3. Powers and Duties
§ 1037(d). Certificate of convenience and neces-
sity.
This section is not applicable to an electric membership
corporation, organized under the provisions of § 1694(7-28).
And by reason of the provisions of section 1694(28) of the
statute under which it was organized, there was no error
in the holding of the lower court that the defendant elec-
tric membership corporation was not required, before be-
ginning the construction or operation of its facilities for
serving its members by furnishing them electricity for
lights and power, to obtain from the Utilities Commis-
sioner of North Carolina a certificate that public conven-
ience and necessity requires or will require the construc-
tion and operation of said facilities by said defendant.
[24]
§ 1042;
CORPORATION COMMISSION
§ lH2(o)
Carolina Power, etc., Co. v. Johnston County Elec. Mem-
bership Corp., 211 N. C. 717, 720.
§ 1042, To provide for union depots.
Cited in Cole v. Atlantic Coast Line R. Co., 211 N. C.
591, 191 S. E. 353.
Art. 5. Railroad Freight Rates
§ 1083. Application for investigation of rates;
appeal; rates pending appeal. —
All incorporated cities and towns in the state
are deemed to be directly interested in the rates
charged for the transportation of property by rail-
roads and other common carriers operating into
and out of such municipalities and in any discrim-
ination in such rates and services as between mu-
nicipalities; and, their welfare being thereby af-
fected, any incorporated city or town in North
Carolina is authorized and empowered to file its
petition with the utilities commissioner for inves-
tigation and determination of all matters affecting
rates for the transportation of property by rail-
roads and other common carriers to or from
such municipality, and also to prevent or remove
any unfair or unreasonable difference or discrim-
ination, to its prejudice or disadvantage, between
the rates or the services at, in or to another such
municipality within the state; and such municipal-
ity shall have the right, as a party in interest, to
be represented and appear before, and to appeal
from any decision which may be rendered there-
in by the utilities commissioner, in the manner
provided by Consolidated Statutes, section one
thousand and ninety-seven. (Ex. Sess., 1913, c.
20, s. 7; 1937, c. 401.)
Editor's Note. — The 1937 amendment directed that the above
provision be added at the end of this section. The rest of the
section, not being affected by the amendment, is not set out
here.
The authority given to municipalities to appear before
the utilities commissioner and to appeal from his decisions
relates to intrastate rates only, as the commissioner has no
authority over interstate rates. 15 N. C. I^aw Rev., No. 4,
p. 366.
Art. 7. Penalties and Actions
§ 1107. Discrimination between connecting lines.
Reference. — As to the practice of specifying in published
tariffs particular routes formed with connecting carriers,
see 13 N. C. Law Rev., No. 4, p. 364.
§ 1112. Remedies, cumulative.
Cited in Powell v. Hamlet Ice Co., 209 N. C. 195, 183
S. E. 386, dissenting opinion.
Art. 8. Utilities Commissioner
§ 1112(b). Supervisory powers. —
(3) By electric light, power, water, and gas
companies, pipe lines originating in North Caro-
lina for the transportation of petroleum products,
and corporations, other than such as are munic-
ipally owned or conducted, and all other com-
panies, corporations, or individuals engaged in
furnishing electricity, electric light current, power,
or in transmitting or selling the same or pro-
ducing the same from the water courses of this
state ;
(1937, c. 108, s. 2.)
Editor's Note^-The 1937 amendment inserted the reference
to pipe lines in subsection (3). The rest of the section, not
being affected by the amendment, is not set out.
§ 1112(fl). Transportation advisory commis-
sion abolished; powers and duties transferred to
utilities commission. — The transportation advis-
ory commission, created under chapter two
[2
hundred sixty-six, Public Laws one thousand
nine hundred twenty-five [§ 7516 (e) et seq.], and
organized and operating thereunder and by vir-
tue of amendments thereto, is hereby abolished
from and after July first, one thousand nine hun-
dred thirty-seven. All the powers and duties
heretofore exercised by the said transportation
advisory commission are hereby transferred to
the utilities commission created by chapter one
hundred thirty-four, Public Laws of one thousand
nine hundred thirty-three [§ 1112(a) et seq.] ; and
on and after said July first, one thousand nine
hundred thirty-seven, in all proceedings then pend-
ing wherein the said transportation advisory com-
mission is petitioner, or plaintiff, or defendant,
the said utilities commission shall be petitioner,
party plaintiff or party defendant, as the case may
be, and shall be empowered and authorized to
prosecute same to a conclusion. The said utili-
ties commission is hereby fully clothed with all
rights, authority, and powers heretofore vested in
the transportation advisory commission under all
of the laws creating the said commission, or
amending the same, or any other statutes what-
soever. (1937, c. 434, s. 1.)
Editor's Note. — The act from which this section was codi-
fied provides for the auditing of all funds of the transporta-
tion advisory commission, and turning over any surplus re-
maining to the state treasurer.
§ 1112(o). Commissioner to keep himself in-
formed as to utilities; approval of rail rate in-
creases without hearing. —
Provided, that in individual cases not involving
increases above the normal rate structure, or in
individual cases where the proposed increase is
deemed justifiable, the utilities commissioner may
approve, without hearing, the petitions of carriers
where the rate and/or charge involves transporta-
tion exclusively by rail; and provided further,
that nothing herein shall be construed to prevent
any public-service corporation from reducing its
rates, either directly or by change in classification.
(1933, c. 134, s. 16; 1937, c. 165.)
The 1937 amendment inserted the above provisos in lieu
of the proviso formerly appearing at the end of this section.
The rest of the section, not being affected by the amendment,
is not set out. — Ed. Note.
If this chapter had provided that rates could be decreased
without affording the railroad a hearing it would have been
unconstitutional. It has been said that the law authoriz-
ing the raising of rates without a hearing may be valid,
but the question raised, is it good policy? Doubtless con-
venience is served by dispensing with the necessity for hear-
ings in raising individual rates when no one would be likely
to appear with evidence in opposition if there were a hear-
ing. But would not the legitimate objects of the act have
been served if authority to raise the rates without a hear-
ing had been specifically qualified by provisions authorizing
objections to be made within a given period after the or-
der? 15 N. C. Law Rev., No. 4, p. 365.
The proviso to this section deprived the Utilities Com-
missioner of jurisdiction over reductions in rates. This
means that any railroad acting lawfully, that is, individ-
ually and with proper intent, may reduce its own rates
free of the control of the Utilities Commissioner, but it
does not mean that it can, acting unlawfully or as a result
of a conspiracy with other railroads, use this uncontrolled
power to injure a competitor and it does not follow that
conspiracies in violation of chapter 53 are made legal by
the proviso. Bennett v. Southern Ry. Co., 211 N. C. 474,
483, 191 S. E. 240, decided prior to the 1937 amendment.
Where certain carriers by truck sought injunctive relief
against railroad carriers for reduction in rates as to cer-
tain commodities, and as between certain localities, it was
held that they had no legal right to. have their contract
price protected against lawful competition from rail car-
riers, who could, under this section, reduce rates at will.
Carolina Motor Service v. Atlantic Coast L,ine R. Co., 210
5]
§ 1112(1)
CORPORATIONS
§ 1181(b)
N. C. 36, 185 S. E. 479, 104 A. h. R. 1165, decided prior to
the 1937 amendment.
Art. 9. Public Utilities Act of 1933
§ 1112(1). Definitions.
The provisions of this article as to rate regulation are
not in conflict with §§ 2559-2574. Bennett v. Southern Ry.
Co., 211 N. C. 474, 191 S. E. 240.
§ 1112(6). Discrimination prohibited.
Where certain carriers by truck sought injunctive re-
lief against railroad carriers for discrimination in rates
against certain cities and against certain commodities, it
was held that the basis for injunctive relief must be an
interference or threatened interference with a legal right
of the petitioner, not of a third party and that the ship-
pers would be the real parties in interest not the contract
truck carriers. Carolina Motor Service v. Atlantic Coast
Line R. Co., 210 N. C. 36, 38, 185 S. E- 479, 104 A. I*. R.
1165.
§ 1112(32). Abandonment and reduction of serv-
ice.
Where a power company discontinued its service for non-
payment of charges, the customer, upon payment of the
charges, is entitled to restoration of the service where
the company did not obtain an order under this section.
Sweetheart I,ake v. Carolina Power, etc., Co., 211 N. C.
269, 271, 189 S'. E. 785.
CHAPTER 22
CORPORATIONS
Art. 2. Formation
§ 1116. When incorporators become corporation.
/ Applied in Britt v. Howell, 210 N. C. 475, 187 S. E. 566.
Art. 3. Powers and Restrictions
§ 1137(a). Process agent in county where prin-
cipal office located; service on inactive corpora-
tions.— Every corporation chartered under the
laws of North Carolina shall have an officer or
agent in the county where its principal office is
located upon whom process can be had, and shall
at all times keep on file with the secretary of
state the name and address of such process officer
or agent, and upon the return of any sheriff or
other officer of such county that such corporation
or process officer or agent cannot be found, serv-
ice may be had upon such corporation by leaving
a copy with the secretary of state, who shall mail
the copy so served upon him to the process agent
or officer at the address last given and on file
with him, or if none, to the corporation at the ad-
dress given in its charter; and any such corpora-
tion so served shall be in court for all purposes
from and after the date of such service on the sec-
retary of state.
For service as above provided to be performed
by the secretary of state he shall receive a fee of
one dollar ($1.00), to be paid by the party at
whose instance the service is made.
This section shall not be in derogation of any
other act or law pertaining to the service of sum-
mons or process, but shall be in addition thereto.
(1937, c. 133, ss. 1-3.)
For article discussing the effect of this chapter, see 15 N.
C. Law Rev., No. 4, p. 340.
§ 1138(a). Certain corporate conveyances vali-
dated.— All deeds and conveyances of land in this
state, made by any corporation of this state prior
to January first, one thousand nine hundred thirty-
five, executed in its corporate name and signed
and attested by its proper officers, from which the
corporate seal was omitted, shall be good and
valid, notwithstanding the failure to attach said
corporate seal. This section shall not affect pend-
ing litigation. (1937, c. 360, ss. 1, 2.)
Art. 4. Directors and Officers
§ 1144. Directors. — The business of every cor-
poration shall be managed by its directors, who
must be at least three in number, and at all times
bona fide stockholders or the guardian of a bona
fide stockholder, or the executor or administrator
of the estate of a deceased bona fide stockholder,
or a director in a corporation which is a bona fide
stockholder, in case the corporation is one issu-
ing stock.
(1937, c. 179.)
Editor's Note. — The 1937 amendment inserted the words
"or the guardian of a bona fide stockholder, or the executor
or administrator of the estate of a deceased bona fide stock-
holder, or a director in a corporation which is a bona fide
stockholder" in the first sentence. The rest of the section,
not being affected by the amendment, is not set out.
Art. 6. Meetings, Elections and Dividends
§ 1177. Jurisdiction of superior court over cor-
porate elections. — Whenever there shall be any
dispute with reference to the election of directors
by the stockholders of any corporation in the
hands of a receivership, or whenever there shall
be any dispute with reference to the election of
officers of any corporation by directors or stock-
holders, if the stockholders elect the officers, the
resident or presiding judge of the district may,
after ten days' notice to the stockholders, or to
the directors as the case may be, hear at cham-
bers, in the county in which the principal office
of the corporation is situated, evidence in the form
of affidavits as to dispute, and may continue from
time to time such hearing for the purpose of es-
tablishing facts with reference thereto to his sat-
isfaction; and upon the completion of his hearing
may order a new election or may declare the re-
sult of the election so held, or may continue the
directors or officers, as the case may be, until a
new election shall be held: Provided, however,
that no order shall be entered temporarily affect-
ing the status of the corporation. With refer-
ence to notice, evidence, and the findings by the
judge hearing the same, the proceedings shall
be, as far as possible, the same as in injunctions.
(Rev., s. 1189; 1901, c. 2, s. 47; 1935, c. 413;
1937, c. 347.)
Editor's Note.— Prior to the 1937 amendment this section
contained a provision for the appointment of receivers.
Art. 7. Foreign Corporations
§ 1181(b). Secretary of state directed to re-
quire domestication of all foreign corporations do-
ing business in state. — The secretary of state is
hereby directed to require that every foreign cor-
poration doing business in North Carolina, as per-
mitted under the provisions of Consolidated Stat-
utes, section one thousand one hundred and eighty,
shall file in the office of the secretary of state a
copy of its charter or articles of agreement, in
the manner required by Consolidated^ Statutes,
section one thousand one hundred and eighty-one,
and all amendments thereto, and otherwise fully
comply with the provisions of said law, including
the payment to the secretary of state of fees fixed
by said law for the privilege of doing business in
this state and domestication therein. The secre-
[26]
§ 1197
CORPORATIONS
§ 1224(1)
tary of state is authorized and empowered to em-
ploy such assistants as shall be deemed necessary
in his office for the purpose of carrying out and
enforcing the provisions of this section, and for
making such investigations as shall be necessary
to ascertain foreign corporations now doing busi-
ness in North Carolina which may have failed or
hereafter fail to domesticate as required by law.
(1937, c. 343.)
Art. 8. Dissolution
§ 1197. Wages for two months lien on assets.
— In case of the insolvency of a corporation, part-
nership or individual, all persons doing labor or
service of whatever character in its regular em-
ployment have a lien upon the assets thereof for
the amount of wages due to them for all labor,
work, and services rendered within two months
next preceding the date when proceedings in in-
solvency were actually instituted and begun
against the corporation, partnership or individual,
which lien is prior to all other liens that can be
acquired against such assets. (Rev., s. 1206; 1901,
c. 2, s. 87; 1937, c. 223.)
Editor's Note. — The 1937 amendment inserted the words
"partnership or individual" twice in this section.
§ 1199. Debts not extinguished nor actions
abated.
Where a corporation has been served with summons and
has filed answer, the action against it does not abate upon
its subsequent dissolution, and its directors are made trus-
tees of its property by §§ 1193 and 1194. Lertz v. Hughes
Bros., 208 N. C. 490, 181 S. E. 342.
Art. 10. Receivers
§ 1212. Proof of claims; time limit.
Cited in Kenny Co. v. Hinton Hotel Co., 208 N. C. 295,
180 S. E, 696.
Art. 11. Taxes and Fees
§ 1218. Taxes for riling; secretary of state not
to file corporate papers until prescribed fees, etc.,
paid.—
The secretary of state shall not file any articles,
certificates, applications, amendments, reports,, or
other papers relating to any corporation, domestic
or foreign, organized under or subject to the pro-
visions of this chapter until all fees, taxes, and
charges provided to be paid in connection there-
with shall have been paid to him. (Rev., s. 1233;
1901, c. 2, s. 96; 1911, c. 155, s. 5; 1929, c. 36; 1935,
c. 10; 1937, c. 171.)
Editor's Note. — The 1937 amendment directed that the above
provision be added at the end of this section. The rest of
the section, not being affected by the amendment, is not
set out.
§ 1220. Corporate property in receiver's hands
liable for taxes.
Where City and County Have No Lien on Proceeds of
Sale. — Where the receiver of a corporation sold personal
property of the corporation, comprising its sole assets, un-
der orders of the court, and deposited the proceeds of sale
to his credit as receiver, and the city and county in which
the corporation was located levied executions on the funds
on deposit, claiming that they, respectively, were entitled
to preferred claims against the funds for personal prop-
erty taxes for several years prior to the appointment of
the receiver, it was held that since under § 7986 a lien for
personal property taxes does not attach until levy thereon
and no lien for taxes was created prior to the sale of the
property free from tax liens by the receiver, the city and
county have no lien on the proceeds of sale of the prop-
erty and are not entitled to a preferred claim against the
funds. Currie v. Southern Manufacturers Club, 210 N. C.
150, 185 S. E. 666.
Art. 14. Severance of Certain Partially Merged
Charitable, Educational or Social
Corporations
§ 1224(j). Application of article. — This article
shall apply only to charitable, educational or so-
cial corporation, not under the patronage or con-
trol of the state nor under the patronage or con-
trol of any religious denomination, which has been
formed by the de jure merger of two or more cor-
porations of such character, the merger having been
brought about either under chapter four hundred
eight of the Public Laws of one thousand nine
hundred thirty-three or chapter seventy-seven of
the Public Laws of one thousand nine hundred
twenty-five [§§ 1224(a)-1224(i)], or under other
special or general laws, but where for any reason
the merger has not been carried out in fact to the
extent of the actual surrender of shares of stock
or of other evidences of membership in the re-
spective corporations and the issuance of new
stock or new evidences of membership in the
merged corporation. A charitable, educational or
social corporation, organized by the merger of
two such corporations, may be severed and re-
stored to the status of the merging or original
corporations by complying with the provisions of
this article, with the exceptions above set out.
(1937, c. 256, s. 1.)
§ 1224(k). Resolution providing for severance;
accounting. — At any regular or duly called meet-
ing of the board of directors or other governing
body of such merged corporation, a resolution
may be adopted providing for the severance of the
corporations and restoration to each of the orig-
inal corporations of the properties owned by each
at the time of the merger, and the restoration to
the stockholders or members of the stock, rights
and privileges owned by them in the merging
corporations at the time of the merger, and pro-
viding for an accounting as between the respective
corporations of their receipts, disbursements and
obligations incurred since the attempted merger,
the accounting to be on the assumption the cor-
porations had never been merged. (1937, c. 256,
S. 2.)
§ 1224(1). Stockholders' meeting; notice; rati-
fication of resolution. — Upon the adoption by the
board of directors or other governing body of the
merged corporations of such resolution of sever-
ance, a meeting shall be called by the said govern-
ing body of the members or stockholders of the
merged corporation. A notice shall be sent to
each stockholder or member of the merged cor-
poration by registered mail at least ten days be-
fore the date of the stockholders' or members'
meeting. Such notice shall be mailed to the last
address of the stockholder or member as it ap-
pears on the records of the merged corporation.
Such notice shall also be published once in a
newspaper of general circulation in the county in
which the corporation has its principal office at
least ten days before the meeting, stating the sub-
stance of the resolution of severance and giving
the time and place of the meeting. If at such
meeting of stockholders or members a resolution
shall be adopted ratifying the resolution of the
board of directors or governing body, and provid-
ing for the severance of the merged corporation
into its constituent corporations as they existed
[27]
§ 1224(m)
CORPORATIONS
§ 1224(q>
immediately prior to the merger, and such resolu-
tion shall be adopted by a majority of three-
fourths of the total membership or total number
of stockholders by shares, as the voting privilege
may be exercised in the merged corporation, then
the merged corporation shall be severed, on com-
pliance with the further procedural provisions of
this article. (1937, c. 256, s. 3.)
§ 1224 (m). Election of officers for severed cor-
porations.— On the adoption of such resolution of
severance by the stockholders or members, the
president of the merged corporation shall, either
at said meeting or within ten days thereafter, ap-
point an acting chairman of the membership or
stockholders of each corporation, and shall call a
meeting of the members or stockholders of each
corporation for the purpose of electing officers of
each of the severed corporations, such meetings
to he held in accordance with the charter and by-
laws of the severed corporations as they existed
prior to the merger. (1937, c. 256, s. 4.)
§ 1224(n). Agreement between officers and di-
rectors for division and accounting. — The officers
and directors of the several corporations shall
thereupon enter into an agreement setting out in
substantial detail the division of the properties of
the merged corporation and providing for the ac-
counting of all receipts and disbursements as be-
tween the severed corporations on the same basis
as if the respective corporations had never been
merged. Such agreement shall thereupon be sub-
mitted to the stockholders or members of the
severed corporations at a meeting to be called in
accordance with the charter or by-laws of the
severed corporations. At such meeting such
agreement shall become effective when approved
by a majority of the stockholders or members.
Thereupon said agreement shall be executed by
the respective officers of the severed corporations,
and deeds and other appropriate instruments shall
be executed by the officers of the respective cor-
porations to carry out the terms of the agreement.
(1937, c. 256, s. 5.)
§ 1224(o). Certificates of severance. — Upon the
approval of the terms of the severance agreement,
as provided in the preceding section, the presi-
dent and board of directors of the respective cor-
porations shall execute a certificate under the
seal of the corporation setting forth in substance
the terms of the resolution of severance adopted
by the stockholders or members of the merged
corporation provided for by section 1224(1), and
also setting forth the fact and date of the ratifica-
tion of such severance agreement by the major-
ity of the members or stockholders of the sev-
ered corporations, and shall file the same with
the secretary of the state of North Carolina.
Such certificate, duly certified by the secretary of
state under the seal of his office, shall also be re-
corded in the office of the clerk of the superior
court of the county in this state in which the
principal office of the merged corporation was es-
tablished, and also in the offices of the clerks of
the superior court for each of the counties in
which the respective severed corporations shall
have or shall establish their principal offices. On
the filing of such certificates in the office of the
clerk or clerks of the superior courts, as herein
provided, said severance shall be complete to all
intents and purposes as if the merger had never
taken place. Upon the recording of such certifi-
cate it shall be presumptive evidence of the state-
ments of fact contained in said certificate, and
after sixty days it shall be conclusive evidence of
such statements of fact, except as to any stock-
holder or member who shall have demanded the
value of his stock or membership. (1937, c. 256,
s. 6.)
§ 1224(p.). Original rights restored; liabilities
unaffected. — On the completion of the procedure
set out in the previous section the stockholders
or members in the respective corporations, or
their representatives or assigns, as the case may
be, shall to all intents and purposes be restored
to the same rights and privileges which they, or
their predecessors in interest, held in the original
corporations: Provided, that any member or
stockholder who has conveyed or for any reason
forfeited his rights in the merged corporation
shall not, by reason of the severance of the
merged corporations, be restored to the rights he
had in the original corporations at the time of the
merger. Nothing contained in this article, how-
ever, shall be deemed to affect any debts, liabili-
ties or obligations assumed or incurred by the
merged corporation during the period of the
merger, but each of the severed corporations
shall, with respect to such debts or other obliga-
tions, remain liable jointly and severally. (1937,
c. 256, s. 7.)
§ 1224(q). Objection to severance and demand
for payment for stock; failure to object deemed
assent. — If any stockholder or member entitled to
vote in the merged corporation shall vote against
the merger at the stockholders' or members'
meeting provided in section 1224(1), or shall, prior
to the taking of the vote at such meeting, object
thereto in writing, and if such dissenting or ob-
jecting stockholder or member shall, within
twenty days after such meeting, demand in writ-
ing from the merged corporation payment of his
stock or of his interest in the merged corporation
by reason of his membership therein, the merged
corporation shall, within thirty days thereafter,
pay to him the value of his stock or membership
at the date of the adoption of the resolution of
severance at the stockholders' or members' meet-
ing. In case of disagreement as to the value
thereof, it shall be lawful for any such stock-
holder or member, within thirty days after he has
made demand in writing as aforesaid, or has voted
against the resolution as aforesaid, and upon writ-
ten notice to the merged corporation to appeal
by petition to the superior court of the county in
which the principal office of the merged corpora-
tion is located to appoint three appraisers to ap-
praise the value of his stock or membership. The
award of the appraisers, or a majority of them, if
not opposed within ten days after the same shall
have been filed in court, shall be confirmed by the
court or clerk, and when confirmed shall be final
and conclusive. If such report is opposed and
excepted to, the exceptions shall be transferred
to the civil issue docket of the superior court, and
there tried in the same manner, as nearly as may
be practicable, as is provided in section one thou-
sand seven hundred and twenty-four of the Con-
solidated Statutes for the trial of exceptions to
[28]
§ 1224(r)
COUNTIES AND COUNTY COMMISSIONERS
§ 1297
the appraisal of land condemned for public pur-
poses. The court shall assess against the merged
corporation the costs of said proceeding. On the
making of such demand in writing, as aforesaid,
any such stockholder or member shall cease to
be a stockholder or member in said merged cor-
poration, and shall have no rights with respect
thereto, except the right to receive payment for
the value of his stock or membership. Each stock-
holder or member in the merged corporation en-
titled to vote, who does not vote against the sev-
erance, and each stockholder or member at the
time of the adoption of the resolution of severance
provided in section 1224(1) not entitled to vote,
who does not object thereto in writing, as afore-
said, shall be deemed to have assented to the sev-
erance. (1937, c. 256, s. 8.)
§ 1224(r). Pending litigation not affected. —
Any action or proceeding pending by or against
the merged corporation may be prosecuted to
judgment as if such severance had not taken
place, or the severed corporation, or either of
them, may be substituted in its place. (1937, c.
256, s. 9.)
§ 1224 (s). Fees of secretary of state.— The
fees to be charged by the secretary of state for
filing the certificate of severance and the issu-
ance of his certificate thereon shall be the same
as provided by law for the filing of an original
certificate of incorporation of charitable, educa-
tional or social corporations. (1937, c. 256, s. 10.)
CHAPTER 23
COSTS
Art. 1. Generally
§ 1229(a). Stenographer's fee in Wayne County.
Editor's Note. — Public Laws 1937, c. 120, amended this sec-
tion by adding the following sub- sections:
(a) The stenographer's fee in all actions and special pro-
ceedings, now pending, or hereafter brought in the superior
court of Wayne county and the county court of Wayne
county shall be five ($5.00) dollars: Provided, however, that
such stenographer's fee shall not be taxed in any action or
proceeding unless a jury shall be empaneled and evidence
shall be offered: Provided further, that such fee shall not be
taxed in any action in the county court unless the services
of a court stenographer shall be employed.
(b) The jury fee in all civil actions or special proceedings,
now pending, or hereafter brought in the superior court of
Wayne county or in the county court of Wayne county shall
be three ($3.00) dollars: Provided, however, that such jury
fee shall not be taxed in any action or proceeding unless a
jury shall be empaneled and evidence shall be offered.
(c) The jury fee in all criminal actions, now pending, or
hereafter brought in the superior court of Wayne county or
in the county court of Wayne county, shall be four ($4.00)
dollars: Provided, however, that such jury fee shall not be
taxed in any action in the county court of Wayne county un-
less a jury shall be empaneled.
Art. 3. Civil Actions and Proceedings
§ 1241. Costs allowed plaintiff; limited by re-
covery; several suits on one instrument.
V. NO MORE RECOVERY OF COSTS THAN
DAMAGES.
Applied, as to action of slander, in Wolfe v. Montgom-
ery Ward & Co., 211 N. C. 295, 189 S. E. 772.
§ 1244. Costs allowed either party or apportioned
in discretion of court; attorneys' fees. —
The word "costs" as the same appears and is
used in this section shall be construed to include
reasonable attorneys' fees in such amounts as the
court shall in its discretion determine and allow.
(Rev., s. 1268; Code, ss. 2134, 2161, 1660, 1294, 2039,
2056, 533, 1422, 1323; 1889, c. 37; 1893, c, 149, s. 6;
1937, c. 143.)
Editor's Note. — The 1937 amendment, which added the
above paragraph at the end of this section, provides: "This
act shall not apply to pending causes." The rest of the sec-
tion, not being affected by the amendment, is not set out
here.
For article discussing the effect of the amendment, see 15
N. C. Ivaw Rev., No. 4, p. 333.
Art. 5. Liability of Counties in Criminal Actions
§ 1260. Local modification as to counties paying
costs. —
In Northampton county where in criminal pro-
ceedings before the recorder's court, the grand
jury, or superior court the defendant is found not
guilty or a true bill is not found by the grand jury,
or the defendant is found guilty and is sen-
tenced by the court to serve on the roads or a term
in jail, then the said county shall pay full fees to
the sheriff, officer, or constable who served any
process in such proceeding. (1937, c. 43.)
Editor's Note.— Public Acts 1937, c. 43, directed that the
above paragraph be added at the end of this section. The
rest of the section, not being affected by the amendment, is
not set out here.
CHAPTER 24
COUNTIES AND COUNTY COMMIS-
SIONERS
Art. l. Corporate Existence and Powers of Counties
§ 1290. County as corporation; acts through
commissioners.
Same — Differs from Cities and Towns. — In accord with
original. See Martin v. Board of Com'rs, 208 N. C. 354,
180 S. E. 777.
§ 1291(b). Reconveyance of property donated to
county, etc., for specific purpose. — Any county,
city or town to which any real property has been
conveyed, without consideration, to be used for a
specific purpose set out in the deed, shall have au-
thority to reconvey the same without considera-
tion to the grantor, his heirs, assigns or nominees
whenever the governing body of such municipality
shall officially determine that the said property will
not be used for the purpose for which it was given:
Provided, that due notice of such proposed con-
veyance shall be given by advertisement for two
successive weeks in some newspaper of general
circulation in the county. (1937, c. 441.)
Art. 2. County Commissioners
§ 1293. Local modifications as to term and num-
ber.
Cited in Martin v. Board of Com'rs, 208 N. C. 354, 180
S. E- 777.
§ 1297. Powers of board. —
834. Same — In Certain Counties. — Subject to the
approval of the director of local government, the
boards of county commissioners of Duplin, Avery,
Dare, Tyrrell, Pender, Clay, Alleghany, Cherokee,
Edgecombe, Graham, Granville, Halifax, Iredell,
Jackson, Macon, Montgomery, Person, Polk,
Rutherford, Swain, Watauga, Wilson, Durham,
Mitchell, Burke, McDowell, Perquimans, Alamance,
Henderson, Buncombe, Randolph and Scotland
[29]
§ 1316(a)
COUNTIES AND COUNTY COMMISSIONERS
§ 1334(96)
counties are hereby authorized to levy such special
property taxes as may be necessary not to exceed
five cents on the one hundred dollars valuation for
the following special purposes respectively, in addi-
tion to any tax now allowed by law for such pur-
poses and in addition to the rate allowed by the
constitution: (1) For the expense of the quadrennial
valuation or assessment of the taxable property,
(2) for the expense of holding courts in the county
levying the tax and the expense of maintenance of
jails and jail prisoners. (1931, c. 441; 1935, c. 330;
1937, c. 41.)
Editor's Note.— -The 1937 amendment added Buncombe and
Randolph to the list of counties in this subsection. The rest
of the section, not being affected by the amendment, is not
set out here.
Issuance of Bonds for Erection of New Jail Authorized.
—Where it was stipulated in the agreed facts that defend-
ant county's jail was unsafe and insanitary, and the erec-
tion of a new jail was a public necessity, bonds necessary
to provide funds for the erection of a new jail, with
plumbing, heating, and electrical work, are for a special
necessary county expense under this section and § 1317,
therefore the issuance of such bonds is given special leg-
islative approval by §§ 1321(a), 1334(8) (a) and (d). Cast-
evens v. Stanly County, 209 N. C. 75, 183 S. E. 3.
The board of commissioners has the power and duty of
auditing and passing upon the validity of claims. If they
refuse to audit or act upon a claim, mandamus will lie
to compel them to do so. If after a hearing they refuse
to allow or issue a warrant for its payment, an action will
lie against the commissioners to establish the debt and for
such other relief as the party may be entitled to. Reed
v. Farmer, 211 N. C. 249, 253, 189 S. E. 882, citing Martin
v. Clark, 135 N. C. 178, 47 S. E. 397.
Art. 5A. Contracts
§ 1316(a). Contracts involving expenditure of
$1,000 or more let after advertisement for bids.
Excessive Deposit Does Not Invalidate Bond. — The fact
that the city required a deposit in excess of the amount
required by this section does not invalidate the bond.
Northeastern Const. Co. v. Winston- Salem, 83 F. (2d) 57,
61, 104 A. L. R. 1142.
Where Contract of City Manager Was Not Binding.—
Where the proposal of the city was materially changed
before the bid of the construction company was accepted,
neither the bidder nor its surety consenting to the change,
and where there was no authority on the part of the city
manager of public works to make the contract or direct
any change until after a contract was entered into, the
holding of the court that there was a binding contract
was held to be erroneous. Northeastern Const. Co. v.
Winston- Salem, 83 F. (2d) 57, 61, 104 A. h. R. 1142.
Authority of Commissioner of Public Works to Change
Specifications Does Not Give Engineer Any Power until
Binding Contract Is Executed. — A clause in the specifi-
cations accompanying the advertisement for the bids giv-
ing the commissioner of public works the power, at any
time, to make changes in the specifications as to the work
and make variations in the quantity of the work either
before the commencement of the work or during its prog-
ress does not give the engineer any power over the trans-
action until a binding contract is executed and entered
into, and in no sense gives him any power or authority
as a contracting party. Northeastern Const. Co. v. Win-
ston-Salem, 83 F. (2d) 57, 60, 104 A. I,. R. 1142.
Art. 6. Courthouse and Jail Buildings
§ 1317. Built and repaired by commissioners.
Reference. — See the note to § 1297 of this Supplement.
The duty to make proper rules and regulations imposes
a discretionary duty on the board of commissioners exer-
cisable only in its corporate capacity, and the commission-
ers are not liable as individuals unless they corruptly or
with malice fail to make proper rules and regulations.
Moye v. Mcl>whorn, 208 N. C. 812, 182 S. E. 493.
§ 1321(a). Bonds for building, altering and re-
pairing courthouses; issuance authorized.
Issuance of Bonds for Erection of New Jail Held to Be
Authorized. — Where the defendant county's jail was unsafe
and insanitary, and the erection of a new one was a pub- j County, 209 N. C. 75, 183 S. E
[30]
lie necessity, the issuance of bonds for this purpose was
held to have been given special legislative approval by this
section and § 1334(8) (a) and (d). Castevens v. Stanly
County, 209 N. C. 75, 183 S. E. 3. See §§ 1297 and 1317
of this Supplement.
The taxes necessary to pay principal and interest of such
bond issue by the county held not to be subject to the lim-
itations of N. C. Const., Art. V, § 6, Art. VII, § 7. Cast-
evens v. Stanly County, 209 N. C. 75, 183 S. E. 3.
Art. 7. County Revenue
§ 1330. Demand before suit against municipal-
ity; complaint.
Purpose of Section. — The purpose of this section was to
give the municipality an opportunity to pass upon and
pay a claim involving a money demand before it could be
subjected to the burden and expense of litigation. It man-
ifestly has no application to suits in equity the object of
which is to protect and preserve the rights of complain-
ant as against threatened action by the city or its offi-
cers. George v. Asheville, 80 F. (2d) 50, 53, 103 A. L.
R. 568.
Art. 7A. County Finance Act
§ 1334(8). Purposes for which bonds may be is-
sued and taxes levied.
References.— See §§ 1297, 1317, and 1321(a) of this Sup-
plement and notes thereto.
Refunding Bonds May Be Issued without Submitting
Question to Qualified Voters. — Reasonable and necessary
expenses incurred in good faith to effect a refunding of
county indebtedness authorized by this section held to be
a necessary expense of the county, and bonds may be is-
sued therefor without submitting the question to the qual-
ified voters of the county. Morrow v. Board of Com'rs,.
210 N. C. 564, 187 S. E. 752.
Section Does Not Include Teacherage as Necessary Equip-
ment of School. — To hold as a matter of law that a teach-
erage is a part of the necessary equipment of a rural con-
solidated school would be to go farther than the General
Assembly has gone, and, perhaps, entail some judicial en-
graftment. This section is not fraught with any dubiety of
meaning. A teacherage, which is to be run for profit and
solely for the benefit of the teachers, is not included within
its terms. Denny v. Mecklenburg County, 211 N. C. 558,.
559, 191 S. E. 26.
§ 1334(17). Hearing; passage of order; debt lim-
itations.
Where a county has assumed all indebtedness of its po-
litical subdivisions for school purposes, and a proposed bond
issue to provide funds necessary to the maintenance of the
constitutional school term in the county is within the lim-
itations of this section, and comes within the provisions of
the Emergency Bond Act, § 1334(86) et seq., taxes for the
payment of principal and interest of the proposed bond is-
sue will not be subject to any limitation on the tax rate.
Castevens v. Stanly County, 209 N. C. 75, 183 S. E. 3.
Art. 7C. County Fiscal Control
§ 1334(70). Daily deposits by collecting or re-
ceiving officers.
Applied in Standard Inv. Co. v. Snow Hill, 78 F. (2d) 33.
Art. 7F. Emergency County Bond Act
§ 1334(92). Taxes levied for the payment of the
bonds.
See § 1334(17) of this Supplement and note thereto.
§ 1334(96). Application and construction of
law.
A county may issue its bonds for a necessary special pur-
pose with the special approval of the General Assembly, or
to raise funds necessary to the maintenance of the consti-
tutional school term, without submitting the issuance of the
bonds to a vote, notwithstanding the provisions of a spe-
cial statute requiring a vote, when the purpose of the bond
issue is to provide the county's part of the expense of a
project for which a federal grant is available, and the pro-
posed bond issue comes within the provisions of this arti-
cle, the special act being harmonized with this article to>
effectuate the legislative intent. Castevens v. Stanly
3.
§ 1335
COURTS— SUPERIOR COURTS
§ 1435(f)
Art. 8. County Poor
§ 1335. Support of poor; superintendent of
county home; paupers removing to county; hos-
pital treatment.
Tax Is Not Subject to Limitation on Tax Rate Imposed
by Constitution. — The tax contemplated is for a special, nec-
essary purpose, with special approval of the General As-
sembly, and is not, therefore, subject to the limitation on
the tax rate imposed by Art. V, sec. 6 of the Constitu-
tion. Martin v. Board of Com'rs, 208 N. C. 354, 180 S. E-
777.
Tax for Medical Care May Be Levied without Approval of
the Qualified Voters. — The tax to provide funds necessary
for the medical care and hospitalization of the indigent sick
of a county is for a necessary expense of the county, and
may be levied without the approval of the qualified vot-
ers of the county. Martin v. Board of Com'rs, 208 N. C.
354, 180 S. E. 777. See Art. VII, sec. 7 of the Constitu-
tion.
Contract Not Held Invalid Because of Duration.— Where
the General Assembly has authorized a county to enter
into a contract with a public hospital for the care of its
indigent sick for a period of thirty years, and the board
of commissioners of the county, in the exercise of the dis-
cretion vested in the board by the statute, has agreed to
contract for that period, the contract will not be held in-
valid because of its duration. Martin v. Board of Com'rs,
208 N. C. 354, 180 S. E. 777.
Art. 9. County Prisoners
§ 1364(1). Use of county prisoners in maintain-
ing roads, not within state system. — The state high-
way and public works commission may, on official
request from a board of county commissioners au-
thorize such board of county commissioners to use
any county prisoners, upon such terms as may be
agreed upon, to maintain and grade any neighbor-
hood road within the county not at such time
within the system of the state highway commission,
but this authorization shall not authorize the levy-
ing of any tax for support of local roads; and like
authority is extended to the boards of drainage
commissioners for public drainage districts for the
maintenance and upkeep of such districts. (1937,
c. 297, s. 3x/2.)
CHAPTER 26
COUNTY TREASURER
§ 1387. Election of county treasurer.
Editor's Note.— Public Laws 1937, c. 103, abolished the of-
fice of treasurer in Buncombe county and transferred its
functions and duties to the county accountant.
CHAPTER 27
COURTS
SUBCHAPTER I. SUPREME COURT
Art. 1. Organization and Terms
§ 1403. Number of justices. — The supreme court
of North Carolina shall consist of a chief justice
and six associate justices, to be chosen in the man-
ner now prescribed by law. (Rev., s. 1532; Const.,
Art. 4, s. 6; 1937, c. 16, s. 1.)
Editor's Note. — The 1937 amendment increased the associate
justices from four to six.
§ 1407. Quorum.— Four justices shall constitute
a quorum for the transaction of the business of the
court. (Rev., s. 1534; Code, s. 956; 1889, c. 230;
1937, c. 16, s. 2.)
Editor's Note.— Prior to the 1937 amendment three justices
constituted a quorum.
[3
Art. 2. Jurisdiction
§ 1412. Power to render judgment and issue
execution.
I. IN GENERAL.
Errors Which Have to Be Assigned. —
In accord with original. See In re Will of Roediger, 209
N. C. 470, 184 S. E. 74.
§ 1421. Power to make rules of court.
Cited in In re Will of Roediger, 209 N. C. 470, 184 S. E. 74.
Art. 3. Officers of Court
§ 1428. Librarian and assistant appointed. — The
justices of the supreme court have charge of the
law library and may, in their discretion, employ a
librarian and an assistant librarian, who shall per-
form their duties under such rules and regulations
as may be prescribed by the court. (Rev., s. 5084;
Code, s. 3606; 1889, c. 482; 1883, c. 100; 1937, c.
173.)
Editor's Note. — The 1937 amendment authorized the ap-
pointment of an assistant librarian.
SUBCHAPTER II. SUPERIOR COURTS
Art. 4. Organization
§ 1435(d). Governor to make appointment of
four special judges. — The governor of North Caro-
lina may appoint four persons who shall possess
the requirements and qualifications of special judges
as prescribed by article four, section eleven of the
constitution, and who shall take the same oath of
office and otherwise be subject to the same re-
quirements and disabilities as are or may be pre-
scribed by law for judges of the superior court,
save the requirements of residence in a particular
district, to be special judges of the superior courts
of the state of North Carolina. Two of the said
judges shall be appointed from the western judicial
division and two from the eastern judicial division,
as now established. The governor shall issue a
commission to each of said judges so appointed for
a term to begin July first, nineteen hundred thirty-
seven, and to end June thirtieth, nineteen hundred
thirty-nine, and the said commission shall consti-%
tute his authority to perform the duties of the of-
fice of a special judge of the superior courts dur-
ing the time named therein. (1927, c. 206, s. 1;
1929, c. 137, s. 1; 1931, c. 29, s. 1; 1933, c. 217, s.
1; 1935, c. 97, s. 1; 1937, c. 72, s. 1.)
Editor's Note.— The 1937 amendment reenacted sections
1435(d)- 1435 (k) without change except as to dates.
§ 1435(e). Time for appointment. — Each special
judge shall be appointed by the governor on or
before July first, nineteen hundred thirty-seven,
and shall be subject to removal from office for the
same causes and in the same manner as regular
judges of the superior court; and vacancies occur-
ring in the offices created by this act shall be filled
by the governor in like manner for the unexpired
term thereof. (1927, c. 206, s. 2; 1929, c. 137, s. 2;
1931, c. 29, s. 2; 1933, c. 217, s. 2; 1935, c. 97, s. 2;
1937, c. 72, s. 2.)
§ 1435(f). Further appointments. — The governor
is further authorized and empowered, if in his
judgment the necessity exists therefor, to appoint
at such time as he may determine, not exceeding
two additional judges, one of whom shall be a resi-
dent of the eastern judicial division and one of
whom shall be a resident of the western judicial
division, whose term of office shall begin from his
1]
§ 1435(g)
COURTS— SUPERIOR COURTS
§ 1443
or their appointment and qualification and to end
June thirtieth, nineteen hundred thirty-nine. All
the provisions of this act applicable to the four
special judges directed and appointed shall be ap-
plicable to the two special judges authorized to
be appointed under this section. (1927, c. 206, s.
3; 1929, c. 137, s. 3; 1931, c. 29, s. 3; 1933, c. 217,
s. 3; 1935, c. 97, s. 3; 1937, c. 72, s. 3.)
§ 1435(g). Extent of authority. — The authority
herein pursuant to article four, section eleven, of
the constitution of North Carolina, conferred upon
the governor to appoint such special judges shall
extend to regular as well as special terms of the
superior court, with either civil or criminal juris-
diction, or both, as may be designated by the stat-
utes or by the governor pursuant to law. (1927,
c. 206, s. 4; 1929, c. 137, s. 4; 1931, c. 29, s. 4; 1933,
c. 217, s. 4; 1935, c. 97, s. 4; 1937, c. 72, s. 4.)
§ 1435(h). Jurisdiction as of regular judges. —
Such special judges during the time noted in their
commission shall have all the jurisdiction which
is now or may be hereafter lawfully exercised by
the regular judges of the superior courts in the
courts which they are appointed or assigned by the
governor to hold, and shall have power to deter-
mine all matters and injunctions, receiverships,
motions, habeas corpus proceedings and special
proceedings or an appeal otherwise properly before
them; but writs of injunction, orders to show cause,
and other remedial or amendatory writs, orders
and notices shall be returnable before them only
in the county where the suit, proceeding or other
cause is pending unless such judge is then hold-
ing the courts of that district, in which case the
same may be returnable before him as before the
regular judge of the superior court; and the same,
when issued by any such special judge, may al-
ways be made returnable by him before the resi-
dent or presiding superior court judge of each dis-
trict to the same extent and in the same manner as
any superior court judge might do in like case.
(1927, c. 206, s. 5; 1929, c. 137, s. 5; 1931, c. 29, s.
5; 1933, c. 217, s. 5; 1935, c. 97, s. 5; 1937, c. 72,
s. 5.)
§ 1435(i). Salary; expenses; terms; practice of
law. — The special judges so appointed shall receive
the same salary and traveling expenses as now
are, or may hereafter be, paid or allowed to judges
of the superior court for holding their regularly
assigned courts, and they shall hold all such regu-
lar and special terms of court as they may be di-
rected and assigned by the governor to hold, with-
out additional compensation: Provided, that no per-
son appointed under this act shall engage in the
private practice of law. (1927, c. 206, s. 6; 1929, c.
137, s. 6; 1931, c. 29, s. 6; 1933, c. 217, s. 6; 1935,
c. 97, s. 6; 1937, c. 72, s. 6.)
§ 1435 (j). Authority to settle case on appeal. —
Nothing herein shall be construed to prohibit such
special judges from settling cases on appeal and
making all proper orders in regard thereto after
the time for which they were commissioned has
expired. (1927, c. 206, s. 7; 1929, c. 137, s. 7; 1931,
c. 29, s. 7; 1933, c. 217, s. 7; 1935, c. 97, s. 7; 1937,
c. 72, s. 7.)
§ 1435(k). Conflicting law repealed. — All laws
and clauses of laws which may be in conflict with
the seven preceding sections, to the extent of such
conflict, are hereby repealed: Provided, that noth-
ing herein shall in any manner affect sections
1435(a) and 3884(a) of the Consolidated Statutes.
(1929, c. 137, s. 8; 1931, c. 29, s. 8; 1931, c. 217, s.
8; 1935, c. 97, s. 8; 1937, c. 72, s. 8.)
Art. 5. Jurisdiction
§ 1436. Original jurisdiction.
I. IN GENERAL.
Applied in Bryan v. Street, 209 N. C. 284, 183 S. E. 366.
Art. 6. Judicial Districts and Terms of Court
§ 1441. Number of districts. — The state shall be
divided into twenty-one superior court judicial dis-
tricts, numbered first to twenty-first, composed of
the counties hereafter designated. (1913, c. 63;
1913, c. 196; 1937, c. 413, s. 1.)
Editor's Note.— Prior to the 1937 amendment there were
twenty districts.
§ 1442. Eastern and western judicial divisions.
— The state shall be divided into two judicial di-
visions, the Eastern and Western Judicial Divi-
sions. The counties which are now or may here-
after be included in the judicial districts from one
to ten, both inclusive, shall constitute the Eastern
Division, and the counties which are now or may
hereafter he included in the judicial districts from
eleven to twenty-one, both inclusive, shall constitute
the Western Division. The judicial districts shall
retain their numbers from one up to twenty-one,
and all such other districts as may from time to
time be added by the creation of new districts shall
be numbered consecutively. (1915, c. 15; 1937, c.
413, s. 2.)
Editor's Note. — The 1937 amendment substituted "twenty-
one" for "twenty" formerly appearing- in this section.
§ 1443. Terms of court. — A superior court shall
be held by a judge thereof at the courthouse in
each county. The twenty judicial districts of the
state shall be composed of the counties desig-
nated in this section, and the superior courts in
the several counties shall be opened and held in
each year at the times herein set forth. Each
court shall continue in session one week, and be
for the trial of criminal and civil cases, except as
otherwise provided, unless the business thereof
shall be sooner disposed of. Each county shall
have the number of regular weeks of superior
court as set out in this section: Provided, however,
that the schedule of courts of any county or judi-
cial district may be revised or reformed and the
number of terms of court may be increased or de-
creased from time to time as may appear advisable
to the court calendar commission; which said com-
mission shall be composed of the chief justice of
the supreme court and four judges of the supe-
rior court, to be appointed by the governor for a
period of four years each. The members of said
commission shall serve without compensation
other than their necessary expenses incurred in
attending meetings of said commission. (1913,
cc. 63, 196; 1937, c. 408.)
Eastern Division
First District
Camden — First Monday after the first Monday
in March and the fourth Monday after the first
[32]
§ 1443
COURTS— SUPERIOR COURTS
§ 1443
Monday in September. (1913, c. 196; 1921, c. 105;
1937, c. 283, s. 1.)
Chowan — Fourth Monday after the first Mon-
day in March; first Monday after the first Mon-
day in September; fourteenth Monday after the
first Monday in September. (1913, c. 196; 1931,
c. 87; 1933, c. 456; 1937, c. 102.)
Beaufort — Seventh Monday before the first
Monday in March for two weeks, the first week
for criminal cases only, and the second week for
criminal and civil cases; second Monday before
the first Monday in March for two weeks for
civil cases only; second Monday after the first
Monday in March for criminal cases only; fifth
Monday after the first Monday in March for civil
cases only; ninth Monday after the first Monday
in March for two weeks for civil cases only;
sixteenth Monday after the first Monday in March
for the trial of criminal and civil cases; second
Monday after the first Monday in September for
the trial of criminal cases with a grand jury in
attendance; third Monday after the first Monday
in September for civil cases only; fifth Monday
after the first Monday in September for civil cases
only; ninth Monday after the first Monday in
September for criminal cases and consent trials
and decrees in civil cases; thirteenth Monday after
the first Monday in September for civil cases only.
(1913, c. 196; Ex. Sess. 1913, c. 51; 1919, c. 128,
ss. 3, 4; 1927, c. Ill; 1931, cc. 4, 8, 87; 1933, c. 3;
c. 456, s. 2; 1935, c. 176; 1937, cc. 40, 283, s. 2.)
Second District
Wilson — Fourth Monday before the first Mon-
day in March, to continue for two weeks, the first
week for criminal cases only, and the second
week for civil cases only; tenth Monday after
the first Monday in March, to continue for two
weeks, the first week for criminal cases only, and
the second week for civil cases only; sixteenth
Monday after the first Monday in March, for civil
cases only; first Monday in September; fourth
Monday after the first Monday in September, for
civil cases only; eighth Monday after the first
Monday in September, to continue for two weeks,
for civil cases only; thirteenth Monday after the
first Monday in September and for this term of
court a special or emergency judge shall be as-
signed by the governor to hold the same. (1913,
c. 196; 1915, c. 45; 1917, c. 12; 1919, c. 133; 1921,
c. 10; 1937, c. 104.)
Third District
Northampton — Fourth Monday after the first
Monday in March; Eighth Monday after the first
Monday in September, each to continue for two
weeks; first Monday in August to continue for one
week. (1913, c. 196; 1929, cc. 123, 244; 1933, c.
409; 1935, c. 148; 1937, c. 64.)
Fourth District
Wayne — Sixth Monday before first Monday in
March, fifth Monday after the first Monday in
March, twelfth Monday after the first Monday in
March, second Monday before the first Monday
in September, each to continue for one week;
twelfth Monday after the first Monday in Sep-
tember, to continue for two weeks; fifth Monday
before the first Monday in March, sixth Monday
after the first Monday in March, thirteenth Mon-
day after the first Monday in March, first Monday
before the first Monday in September, each to
N. C. Supp.— 3 [ 3
continue for two weeks, for civil cases only; first
Monday in March and fifth Monday after the
first Monday in September, each to continue for
two weeks, for civil cases only.
If no regular judge is available for the two
weeks' term of court beginning on the first Mon-
day in March, or for the second week of the terms
beginning on the fifth Monday before the first
Monday in March, or on the sixth Monday after
the first Monday in March, or on the thirteenth
Monday after the first Monday in March, or on
the first Monday before the first Monday in Sep-
tember, the governor may assign a special judge
to hold said court. (1913, c. 196; 1927, c. 77; 1929,
c. 132, s. 1; 1937, c. 192.)
Harnett — Eighth Monday before the first Mon-
day in March, one week, for the trial of criminal
cases only; fourth Monday before the first Mon-
day in March to continue for two weeks, for the
trial of civil cases only; second Monday after the
first Monday in March, for the trial of criminal
cases only; fourth Monday after the first Mon-
day in March to continue for two weeks for the
trial of civil cases only; ninth Monday after the
first Monday in March for the trial of civil cases
only; eleventh Monday after the first Monday in
March, one week, for the trial of criminal cases
only; fourteenth Monday after the first Monday
in March, two weeks, for the trial of civil cases
only; first Monday in September for criminal
cases only; second Monday after the first Mon-
day in September for the trial of civil cases only;
fourth Monday after the first Monday in Septem-
ber to continue for two weeks, civil cases only;
tenth Monday after the first Monday in Septem-
ber to continue for two weeks, for the trial of
criminal cases only. (1913, c. 196; 1927, c. 161,
c. 212; 1931, c. 147; 1937, c. 105.)
Fifth District
Jones — Fourth Monday after the first Monday
in March; fifth Monday after the first Monday
in November; and second Monday after the first
Monday in September.
If the judge regularly assigned to the district in
which said county is situate be unable because of
another regular term of court in said district, or
for other cause, to hold any term of court in said
county, the governor may appoint a judge to hold
such term from among the regular or emergency
judges. (1913, c. 196; Ex Sess. 1913, c. 19; P.
L. 1915, c. 363; 1921, c. 159; 1937, c. 29.)
Seventh District
Wake — Criminal courts: Eighth Monday be-
fore the first Monday in March; first Monday
in March; fifth Monday after the first Monday
in March; ninth Monday after the first Monday
in March; thirteenth Monday after the first Mon-
day in March; eighth Monday before the first
Monday in September; first Monday after the first
Monday in September; fifth Monday after the
first Monday in September; ninth Monday after
the first Monday in September; fourteenth Mon-
day after the first Monday in September. These
terms shall be for criminal cases only.
Civil courts: Fifth Monday before the first
Monday in March; third Monday before the first
Monday in March; first Monday after the first
Monday in March, to continue for two weeks;
third Monday after the first Monday in March,
to continue for two weeks; sixth Monday after
§ 1443
COURTS— SUPERIOR COURTS
§ 1443
the first Monday in March, to continue for two
weeks; eighth Monday after the first Monday in
March; eleventh Monday after the first Monday
in March, to continue for two weeks; fourteenth
Monday after the first Monday in March, to con-
tinue for two weeks; second Monday after the
first Monday in September, to continue for two
weeks; fourth Monday after the first Monday in
September; seventh Monday after the first Mon-
day in September, to continue for two weeks;
twelfth Monday after the first Monday in Sep-
tember, to continue for two weeks. These terms
shall be for civil cases only, and no criminal proc-
ess shall be returnable to such terms. Provided,
that the term beginning on the second Monday
after the first Monday in September shall be a
mixed term for the trial of both civil and criminal
cases, and that the term for trial of criminal
cases beginning on the fourteenth Monday after
the first Monday in September shall continue for
two weeks.
Additional courts: In addition to the courts
above set out for Wake county, the following
terms of superior court for the trial of civil cases
in Wake county shall be held, to wit: the seventh
Monday before the first Monday in March to
continue for two weeks; the fourth Monday be-
fore the first Monday in March to continue for
one week; the second Monday before the first
Monday in March to continue for two weeks; the
first Monday in March to continue for one week;
the fifth Monday after the first Monday in March
to continue for one week; the ninth Monday after
the first Monday in March to continue for one
week; the tenth Monday after the first Monday in
March to continue for one week; the thirteenth
Monday after the first Monday in March to con-
tinue for one week; the sixteenth Monday after
the first Monday in March to continue for two
weeks; the first Monday before the first Mon-
day in September to continue for two weeks; the
first Monday in September to continue for one
week; the fifth Monday after the first Monday in
September to continue for two weeks; the ninth
Monday after the first Monday in September to
continue for three weeks; the fourteenth Mon-
day after the first Monday in September to con-
tinue for two weeks. These terms above provided
for shall be for civil cases only. And in addition
to the courts above set out for Wake county, the
following terms of superior court for the trial of
criminal or civil cases, or both, in Wake county
shall be held, to wit: the sixth Monday before
the first Monday in March to continue for two
weeks; the second Monday before the first Mon-
day in March to continue for two weeks; the sec-
ond Monday after the first Monday in March to
continue for two weeks; the seventh Monday after
the first Monday in March to continue for one
week; the eleventh Monday after the first Mon-
day in March to continue for one week; the six-
teenth Monday after the first Monday in March
to continue for two weeks; the first Monday be-
fore the first Monday in September to continue
for two weeks; the third Monday after the first
Monday in September to continue for one week;
the eighth Monday after the first Monday in Sep-
tember to continue for one week; the tenth Mon-
day after the first Monday in September to con-
tinue for two weeks. These terms last above pro-
vided for shall be for criminal or civil cases, or
both. The said terms of court, both civil and
criminal, herein provided for may be held con-
temporaneously with other courts in said county.
The said terms of court shall be held by regular
or special or emergency judges who shall be as-
signed by the governor. (1913, c. 196; 1917, c.
116; 1919, c. 113; 1924, c. 77; 1937, cc. 163, 387.)
Franklin — Fourth Monday before the first Mon-
day in March, to continue for one week for the
trial of criminal cases only; second Monday after
the first Monday in March, to continue for two
weeks for the trial of civil cases only; sixth Mon-
day after the first Monday in March, to continue
for one week for the trial of criminal cases only;
first Monday in September, to continue for two
weeks for the trial of civil cases only; sixth Mon-
day after the first Monday in September, to con-
tinue for one week for the trial of criminal cases
only; tenth Monday after the first Monday in
September, to continue for two weeks for the
trial of civil cases only. (1913, c. 196; 1917, c. 116;
1937, c. 387, s. 1.)
The courts provided in the above paragraph to
occur on the second Monday after the first Mon-
day in March, and to continue for two weeks for
civil cases, and also the terms so provided for
criminal cases, convening the sixth Monday after
the first Monday in March, and also the second
week of the September term, shall be held by
special or emergency judges to be assigned by the
governor: Provided, however, as to the said
criminal term appointed for the sixth Monday
after the first Monday in March, if no special or
emergency judge shall be available to hold said
term, then it shall be held by the judge regularly
riding the seventh judicial district. (1937, c. 387,
s. 3.)
Eighth District
Columbus — > Second Monday before the first
Monday in September, to continue two weeks for
the trial of criminal and civil cases; eleventh Mon-
day after the first Monday in September, to con-
tinue two v/eeks, for the trial of civil cases only;
fifth Monday before the first Monday in March, to
continue one week, for the trial of criminal and
civil cases; second Monday before the first Mon-
day in March, to continue two weeks, for the trial
of civil cases only; eighth Monday after the first
Monday in March, to continue two weeks, for the
trial of criminal and civil cases; sixteenth Monday
after the first Monday in March, to continue one
week, for the trial of criminal cases; fifth Monday
after the first Monday in September, to continue
one week, for the trial of criminal cases; fourth
Monday before the first Monday in March, to
continue one week, for the trial of criminal and
civil cases, and for this term of court the governor
shall appoint a judge to hold the same from
among the regular, special or emergency judges.
(1913, c. 196; Ex. Sess. 1913, c. 61; 1917, c. 124;
1921, cc. 14, 149; Ex. Sess. 1921, c. 40; 1931, c.
246; 1937, c. 52.)
Ninth District
Bladen — Eighth Monday before the first Mon-
day in March for the trial of civil cases, and the
trial of criminal cases, where bills have been found,
and cases on appeal from the recorder's court and
courts of the justices of the peace; the second
Monday after the first Monday in March for the
trial of criminal cases only; the eighth Monday
after the first Monday in March for the trial of
§ 144a
COURTS— SUPERIOR COURTS
§ 144i
civil cases only; the fourth Monday before the
first Monday in September for the trial of civil
cases only; the second Monday after the first
Monday in September for the trial of criminal
cases only. Said courts to continue for one week
unless the business is sooner disposed of, and
grand juries to be summoned only for the March
and September terms of court: Provided, that if
the necessity should arise, and the county com-
missioners of Bladen county should so determine
and order, a grand jury may be summoned by
said commissioners for the January terms of
court; and such grand jury so summoned shall
have, perform and exercise all of the powers and
duties of regular grand juries herein provided for
the March and September terms of court. At any
term for the trial of criminal cases, civil cases
may be tried by consent. (1913, c. 196; 1915, c.
110; 1927, c. 166, s. 1; 1929, c. 27, s. 1; 1931, c. 96;
1933, c. 77; 1937, c. 159.)
Cumberland— Seventh Monday before the first
Monday in March; first Monday in March (judge
to be assigned) ; the first Monday after the first
Monday in March; thirteenth Monday after the
first Monday in March; first Monday before the.
first Monday in September; eleventh Monday
after the first Monday in September, two weeks;
each for criminal cases only. Third Monday be-
fore the first Monday in March; third Monday
after the first Monday in March; ninth Monday
after the first Monday in March; third Monday
after the first Monday in September; seventh
Monday after the first Monday in September, each
to continue for two weeks, for civil cases only.
At all criminal terms of court civil cases may be
heard by consent of the parties, and motions may
be heard upon ten days notice to the adverse party
prior to said term. (1913, c. 196; Ex. Sess. 1913, c.
23; 1931, c. 96; 1937, c. 159.)
Robeson — Fifth Monday before the first. Mon-
day in March two weeks for the trial of criminal
cases; first Monday before the first Monday in
March two weeks for the trial of civil cases; fifth
Monday after the first Monday in March two
weeks for the trial of criminal cases; eleventh
Monday after the first Monday in March two
weeks for the trial of civil cases; fourteenth Mon-
day after the first Monday in March one week for
the trial of civil cases; fifteenth Monday after the
first Monday in March one week for the trial of
criminal cases; eighth Monday before the first
Monday in September one week for the trial of
civil cases; third Monday before the first Monday
in September one week for the trial of criminal
cases; first Monday in September two weeks for
the trial of criminal cases; fifth Monday after the
first Monday in September two weeks for the trial
of civil cases; ninth Monday after the first Mon-
day in September one week for the trial of crim-
inal cases; thirteenth Monday after the first Mon-
day in September two weeks for the trial of civil
cases; fifteenth Monday after the first Monday in
September one week for the trial of criminal cases.
There shall also be held in Robeson county su-
perior courts, to which judges shall be assigned,
the following terms: Second Monday after the
first Monday in March one week for the trial of
criminal cases; ninth Monday after the first Mon-
day in March two weeks for the trial of criminal
cases; third Monday after the first Monday in
September one week for the trial of criminal cases;
seventh Monday after the first Monday in Sep-
tember one week for the trial of criminal cases.
At all criminal terms all motions and divorce
cases may be heard and jury trials in all civil
cases may be heard by consent. The commission-
ers of Robeson county, by and with the consent
and approval of the solicitor of the ninth judicial
district, in writing, may call off any term of su-
perior court in said county scheduled above for
the trial of criminal cases to which the judge must
be assigned. The grand jury shall convene at all
criminal terms of said courts unless the solicitor
of the ninth judicial district shall, prior to the said
court, notify the sheriff of Robeson county not
to assemble the grand jury for said term, and such
notice, in writing, shall be filed with the clerk of
the board of commissioners of said county, and
shall be spread upon the minutes of the board of
commissioners thereof. (1913, c. 196; 1915, c. 208;
1919, c. 105; 1923, c. 209; 1927, c. 84; 1931, c. 96;
1935, c. 132; 1937, c. 167.)
Western Division
Eleventh District
Alleghany — Eighth Monday after the first Mon-
day in March, and the third Monday after the first
Monday in September (both by regular judge),
for the trial of criminal and civil cases. (1913, c.
196; 1935, c. 246; 1937, c. 413, s. 4.)
Ashe — Sixth Monday after the first Monday in
March, and seventh Monday after the first Mon-
day in September (both by regular judge), for
the trial of criminal cases only; twelfth Monday
after the first Monday in March, to continue for
two weeks, for the trial of civil cases only; sixth
Monday before the first Monday in September, to
continue for two weeks, for the trial of civil cases
only (regular judge) : Provided, that motions and
uncontested civil cases may be heard at either of
the terms designated for the trial of criminal cases
only. (1913, c. 196; Ex. Sess. 1913, c. 34; Ex.
Sess. 1921, c. 32; 1935, c. 246; 1937, c. 413, s. 4.)
Forsyth — Eighth Monday before the first Mon-
day in March; fourth Monday before the first
Monday in March; first Monday in March; fourth
Monday after the first Monday in March; ninth
Monday after the first Monday in March; four-
teenth Monday after the first Monday in March;
eighth Monday before the first Monday in Sep-
tember; first Monday in September; fifth Mon-
day after the first Monday in September; ninth
Monday after the first Monday in September-
thirteenth Monday after the first Monday in Sep-
tember, each of the said terms to continue for two
weeks, for the trial of criminal and civil cases.
Sixth Monday before the first Monday in March;
second Monday before the first Monday in March;
second Monday after the first Monday in March:
sixth Monday after the first Monday in March;
twelfth Monday after the first Monday in March;
sixteenth Monday after the first Monday in
March, continued into the ninth Monday before
the first Monday in September; second Monday
after the first Monday in September; seventh
Monday after the first Monday in September:
eleventh Monday after the first Monday in Sep-
tember, each term to continue for two weeks, for
the trial of civil cases only.
Should there be a conflict of courts either in
Ashe or Alleghany counties with the courts of
Forsyth County, the governor shall assign an em-
ergency or any other judge available to hold the
[ 35 ]
§ 1443
COURTS— SUPERIOR COURTS
§ 1443
term of court in Forsyth county where there is a
conflict. (1913, c. 196; 1917, c. 169; 1919, c. 87;
1923, c. 151; 1927, c. 197; 1929, c. 131; 1933, cc.
23t, 306; 1935, c. 246; 1937, c. 413, ss. 4, 5. P.
L. 1917, c. 375, provides for a criminal calendar.)
Thirteenth District
Scotland — First Monday after the first Mon-
day in March for one week, for the trial of crim-
inal and civil cases; eighth Monday after the first
Monday in March for one week, for the trial of
civil cases only; fourth Monday before the first
Monday in September for one week, for the trial
of criminal and civil cases; eighth Monday after
the first Monday in September for one week, for
the trial of civil cases only; twelfth Monday after
the first Monday in September for two weeks, for
the trial of criminal and civil cases. (1913, c. 196;
Ex. Sess. 1913, c. 22; 1917, c. 105; 1923, c. 178;
1933, c. 116; 1937, C. 371.)
Fourteenth District
Mecklenburg —
The following additional terms of superior court
for the trial of civil cases in Mecklenburg county
shall be held as follows: April fifth, April nine-
teenth, May third, May seventeenth, May thirty-
first, June fourteenth, August thirtieth, Septem-
ber thirteenth, September twenty-seventh, Octo-
ber eleventh, October twenty-fifth, November
eighth, November twenty-second, and December
sixth, one thousand nine hundred and thirty-seven;
and January third, January seventeenth, January
thirty-first, February fourteenth, February twenty-
eighth, March fourteenth, March twenty-eighth,
April eleventh, April twenty-fifth, May ninth, May
twenty-third, June sixth, June twentieth, Au-
gust twenty-ninth, September twelfth, September
twenty-sixth, October tenth, October twenty-
fourth, November seventh, November twenty-first,
and December fifth, one thousand nine hundred
and thirty-eight; and January second* January
sixteenth, January thirtieth, February thirteenth,
February twenty-seventh, March thirteenth, and
March twenty-seventh, one thousand nine hun-
dred and thirty-nine, which said terms of court
may be held contemporaneously with other courts
in said county or district, shall be for two weeks
each, shall be for the trial of civil cases only, and
shall be held by regular and/or special or emer-
gency judges who shall be assigned by the gover-
nor.
The following additional terms of superior court
for the trial of criminal cases in Mecklenburg
county shall be held as follows: March fifteenth,
June twenty-eighth, July twelfth, July twenty-
sixth, August ninth, and December sixth, one
thousand nine hundred and thirty-seven; March
twenty-first, July fourth, July eighteenth, August
first, August fifteenth, and December fifth, one
thousand nine hundred and thirty-eight; and
March twentieth, one thousand nine hundred and
thirty-nine, which said terms of court may be held
contemporaneously with other courts in said county
or district, shall be for two weeks each, shall be
for the trial of criminal cases only, and shall be
held by regular and/or special or emergency
judges who shall be assigned by the governor.
(1937, c. 27.)
Fifteenth District
Alexander — Fourth Monday before the first
Monday in March, to continue for two weeks, for
the trial of civil and criminal cases; first Monday
before the first Monday in September, to continue
for two weeks, for the trial of criminal and civil
cases. For these terms of court the governor may
assign a judge to hold the same from among the
regular, special or emergency judges. (1913, c.
196; 1921, c. 166; 1933, c. 250, s. 4; 1935, cc. 101,
252, s. 2; 1937, c. 214.)
Seventeenth District
Wilkes — First Monday in March for two weeks
for the trial of criminal and civil cases; eighth
Monday after the first Monday in March for two
weeks for the trial of civil cases only; thirteenth
Monday after the first Monday in March, for two
weeks, for the trial of civil cases only; fourth
Monday before the first Monday in September for
two weeks for the trial of criminal and civil cases;
fourth Monda}^ after the first Monday in Septem-
ber, for two weeks, for the trial of civil cases only;
eighth Monday after the first Monday in Septem-
ber for two weeks, the first week thereof for the
trial of criminal and civil cases, and the remaining
one week for the trial of civil cases only. (1913,
c. 196; 1919, c. 165; 1921, c. 166; 1935, c. 105, s. 1,
c. 192; 1937, c. 48.)
Eighteenth District
McDowell — ■ Ninth Monday before the first
Monday in March, to continue for one week for
the trial of criminal cases only; the third Monday
before the first Monday in March, to continue for
two weeks for the trial of civil cases only; the
fourteenth Monday after the first Monday in
March, to continue for two weeks for the trial
of both criminal and civil cases; eighth Monday
before the first Monday in September, to continue
two weeks for the trial of civil cases only; the first
Monday in September, to continue for two weeks
for the trial of both criminal and civil cases. (1913,
c. 196; Ex. Sess. 1921, c. 24; 1923, c. 219; 1927,
c. 207, s. 1; 1935, c. 127; 1937, c. 309.)
Rutherford — First Monday before the first Mon-
day in March, to continue for one week for the
trial of civil cases only; sixth Monday after the
first Monday in March, to continue for two weeks
for the trial of civil cases only; tenth Monday
after the first Monday in March, to continue for
two weeks for the trial of both criminal and civil
cases; sixteenth Monday after the first Monday in
March, to continue for two weeks for the trial of
civil cases only; third Monday after the first Mon-
day in September, to continue for two weeks for
the trial of civil cases only; ninth Monday after
the first Monday in September, to continue for
two weeks for the trial of both civil and criminal
cases. (1913, c. 196; 1915, c. 116; Ex. Sess. 1921,
c. 24; 1927, c. 207, s. 1; 1933, c. 232, s. 1; 1935, c.
127; 1937, c. 309.)
Twentieth District
Haywood — • Eighth Monday before the first
Monday in March, to continue for two weeks,
for civil cases only; fourth Monday before the
first Monday in March, to continue for two weeks;
ninth Monday after the first Monday in March,
to continue for two weeks, for civil cases only;
eighth Monday before the first Monday in Sep-
tember, to continue for two weeks; second Mon-
day after the first Monday in September, for civil
cases only and the eleventh Monday after the first
Monday in September, each to continue for two>
36
§ 1443
COURTS— JUSTICES OF THE PEACE
§ 1463
weeks. (1913, c. 196; 1917, cc. 7, 114; 1923, c. 35,
s. 2; 1924, c. 27; 1937, c. 106.)
Macon — Sixth Monday after the first Monday
in March; second Monday before the first Mon-
day in September, and thirteenth Monday after
the first Monday in September, each to continue
for two weeks. The board of commissioners of
Macon county may, for good cause, decline to draw
a jury for more than one week for any term of
court provided for in this chapter. (1913, c. 196;
1923, c. 35, s. 1; 1927, c. 245, s. 1; 1937, o. 106.)
Clay — 'Eighth Monday after the first Monday in
September. (1913, c. 196; 1927, c. 245, s. 1; 1937,
c. 162.)
Twenty-First District
There is hereby created district number twenty-
one composed of the following counties, and the
superior courts thereof shall be held at the follow-
ing times, to wit:
Caswell — Second Monday after the first Mon-
day in March to continue for two weeks; ninth
Monday before the first Monday in September to
continue for one week; tenth Monday after the
first Monday in September to continue for two
weeks, for the trial of criminal and civil cases.
(1913, c. 196; 1919, c. 289; 1927, c. 202; 1933, c.
45, s. 1; 1935, c. 246; 1937, cc. 107, 413, s. 5.)
Rockingham — Sixth Monday before the first
Monday in March to continue for two weeks;
eleventh Monday after the first Monday in March
to continue for two weeks; fourth Monday before
the first Monday in September to continue for
two weeks; eighth Monday after the first Monday
in September to continue for two weeks; four-
teenth Monday after the first Monday in Sep-
tember to continue for one week, for the trial of
criminal cases only.
First Monday in March to continue two weeks;
sixth Monday after the first Monday in March to
continue for one week; ninth Monday after the
first Monday in March to continue for two weeks;
fourteenth Monday after the first Monday in
March to continue for two weeks; first Monday
in September to continue for two weeks; seventh
Monday after the first Monday in September to
continue for one week; twelfth Monday after the
first Monday in September to continue for two
weeks, for the trial of civil cases only. (1913, c. 196:
Ex. Sess. 1913, c. 49; 1917, c. 107; 1933, cc. 45, 264;
1935, c. 246; 1937, cc. 156, 413, s. 5. P. L- 1915,
c. 60, provides for a calendar in Rockingham
county.)
Stokes — Fourth Monday after the first Monday
in March to continue for one week for the trial
of criminal cases only; fifth Monday after the first
Monday in March to continue for one week for
the trial of civil cases only; sixteenth Monday after
the first Monday in March to continue for one
week for the trial of criminal cases only; second
Monday before the first Monday in September
to continue for one week for trial of both crim-
inal and civil cases; fifth Monday after the first
Monday in September to continue for one week
for the trial of criminal cases only; sixth Mon-
day after the first Monday in September to con-
tinue for one week, for the trial of civil cases only.
(1913, c. 196; Ex. Sess. 1913, c. 1; 1921, c. 142;
1923, c. 196; 1929, c. 158; 1937, c. 413, s. 5.)
Surry — Eighth Monday before the first Mon-
day in March to continue for one week; third
Monday before the first Monday in March to con-
[3
tinue for one week; seventh Monday after the
first Monday in March to continue for one week,
second Monday after the first Monday in Septem-
ber to continue for one week; fifteenth Monday
after the first Monday in September to continue
for one week, for the trial of criminal cases only.
Seventh Monday before the first Monday in
March to continue for one week; second Monday
before the first Monday in March to continue for
two weeks; eighth Monday after the first Mon-
day in March to continue one week; thirteenth
Monday after the first Monday in March to con-
tinue for one week; eighth Monday before the
first Monday in September to continue for two
weeks; third Monday after the first Monday in
September to continue for two weeks, for the
trial of civil cases only. (1913, c. 196; Ex. Sess.
1913, c. 34; Ex. Sess. 1921, c. 9; 1931, c. 251; 1933,
cc. 180, 413; 1935, c. 246; 1937, cc. 210, 413, s. 5.)
Editor's Note. — Only the parts of this section affected by
the amendments of 1937 are set out above. If a county does
not appear in the above presentation the terms of court are
the same as those shown in the North Carolina Code of 1935.
One amendment added the proviso to the first paragraph
of this section. Another created the twenty -first judicial
district composed of the counties of Caswell, Rockingham,
Surry (formerly in the eleventh judicial district) and Stokes
(formerly in the twelfth judicial district, now composed of
the counties of Guilford and Davidson). See Public Laws
1937, c. 413, which provides that the present resident judge
ot the eleventh judicial district shall remain the resident
judge of said district as now constituted, and the solicitor of
the district shall be during his term of office the solicitor of
the twenty-first judicial district. The governor was em-
powered and directed to appoint a solicitor of the eleventh
judicial district as now constituted, and a judge of the
twenty-first judicial district as now constituted, whose terms
of office shall expire on the first day of January following
the next general election, and successors are to be elected at
the next succeeding general election.
Art. 7. Special Terms of Court
§ 1450. Governor may order special terms.
Applied in State v. Boykin, 211 N. C. 407, 191 S. E- 18.
§ 1452. Notice of special terms.
The notice is directory and not mandatory under this
section. State v. Boykin, 211 N. C. 407, 413, 191 S. E. 18.
And Is for the Benefit of the Public. — The notice which is
required to be published under this section is designed not
for the purpose of warning the jury of the coming term.
These persons receive separate notices or summons. Rather,
it serves the purpose of notifying the public. It follows,
then, that the failure to comply with this section goes to
the set-up or organization of the court itself rather than
of the jury. State v. Boykin, 211 N. C. 407, 413, 191 S.
E. 18.
§ 1456. Attendance and process at special terms.
Applied in State v. Boykin, 211 N. C. 407, 191 S. E. 18.
SUBCHAPTER IIB. DOMESTIC
RELATIONS COURTS
Art. 8(B). Counties of at Least Twenty-Five
Thousand Inhabitants
§ 1481 (i). Election of judge and term of office;
vacancy appointments; judge to select clerk; ju-
venile court officers may be declared officers of
new court.
Editor's Note.— Public Laws 1937, c. 268, amended this sec-
tion so as to provide for an assistant judge of the domestic
relations court in Mecklenburg county.
SUBCHAPTER III. JUSTICES OF THE
PEACE
Art. 9. Election and Qualification
§ 1463. Election and number of justices.
Editor's Note. — For act relating to Raleigh township in
Wake county, see Public ]>ws 1937, c. 113.
7]
§ 1475
COURTS— GENERAL COUNTY COURTS
§ 1608(n)
Art. 10. Jurisdiction
§ 1475. Action dismissed for want of jurisdic-
tion; remitter.
Justice Has Jurisdiction to Recover Salary Which Failed
to Equal Amount Stipulated in the "President's Re-employ-
ment Agreement." — A justice of the peace has jurisdiction
•of an action on contract to recover the amount by which the
salary paid plaintiff failed to equal the amount stipulated in
the "President's Re-employment Agreement," voluntarily
signed by defendant employer, when the amount demanded
does not exceed two hundred dollars. James v. Sartin Dry
Cleaning Co., 208 N. C. 412, 181 S. E\ 341.
Art. 15. Judgment and Execution
§ 1517. Justice's judgment docketed; lien and
execution.
Same — Its Nature in Superior Court—
In accord with second paragraph of original. See Essex
Inv. Co. v. Pickelsimer, 210 N. C. 541, 187 S. E. 813.
SUBCHAPTER IV. RECORDERS'
COURTS
Art. 18. Municipal Recorders' Courts
§ 1536. In what cities and towns established;
court of record.
Cited in Stephens v. Dowell, 208 N. C. 555, 181 S. E.
629; State v. Boykin, 211 N. C. 407, 191 S. E- 18.
§ 1541. Criminal jurisdiction.
Jurisdiction Given Over Crimes Below Grade of Felony.
—In order that recorder's courts might be permitted to take
cognizance of crime and try criminals without indictment,
all crimes below the degree of felony have been declared
to be "petty misdemeanors" by subsection (3) of this sec-
tion. State v. Boykin, 211 N. C. 407, 412, 191 S'. E- 18.
§ 1549. Issuance and service of process.
Under the proceedings established in "recorder's courts,"
the complaint and warrant — which, if necessary, must be
construed together— have been established as the proper
proceeding, just as has come down from the common law
as to crimes the punishment of which is within the juris-
diction of a justice of the peace. State v. Boykin, 211 N.
C. 407, 412, 191 S. E- 18.
§ 1551. Clerk of court; election and duties; re-
moval; fees.
Cited in Stephens v. Dowell, 208 N. C. 555, 181 S. E-
629.
§ 1555. Jury trial, as in justice's court.
Editor's Note.— For act, applicable only to Pitt county, pro-
viding for transfer of cases to superior court upon demand
for jury trial, see Public Laws 1937, c. 134.
§ 1557. Officers' fees; fines and penalties paid.
Editor's Note.— Public Laws 1937, c. 279, applicable to
Cabarrus county only, provides that in cases wherein justices
of the peace have not final jurisdiction, the fee of the re-
corder shall be one dollar, and the fee of the prosecuting at-
torney shall be not more than four dollars.
Art. 19. County Recorders' Courts
§ 1564. Recorder's election, qualification, and
term of office.
Editor's Note. — -For act providing for appointment of vice-
recorder in Mecklenburg county, see Public Laws 1937, c. 253.
§ 1569. Removal of cases from justices' courts.
Editor's Note. — For act, applicable only to Mecklenburg
county, relating to payment of costs, etc., see Public Laws
1937, c. 386.
§ 1574. Appeals to superior court.
When the Superior Court sits upon an appeal from a
judgment of a justice of the peace in a criminal action, or
a judgment of a recorder's court under this section, it is
sometimes said to be acting under the derivative jurisdic-
tion of the court from which appeal is taken; the trial is
had upon the warrant issued by the court which had ju-
1
[ 38
court with the return to the appeal. State v. Boykin, 211
N. C. 407, 412, 191 S. E- 18.
Where the case is beyond the jurisdiction of the inferior
court, it does not reach the Superior Court under this sec-
tion by appeal, but only by the process of "binding over,"
and in such case only is an indictment necessary. Id.
§ 1575. Clerk of superior court ex officio clerk
of county recorders' court.
Cited in State v. Boykin, 211 N. C. 407, 191 S. E. 18.
§ 1582(b). Subchapter applies to Henderson
county.
Editor's Note. — For act abolishing the Henderson county
recorder's court, see Public Laws 1937, c. 97.
SUBCHAPTER V. GENERAL COUNTY
COURTS
Art. 24. Establishment, Organization and
Jurisdiction
§ 1608(f). Establishment authorized; official
entitlement; jurisdiction. — In each county of this
state except Caswell county, there may be estab-
lished a court of civil and criminal jurisdiction,
which shall be a court of record and which shall
be maintained pursuant to this subchapter and
which court shall be called the general county
court and shall have jurisdiction over the entire
county in which said court may be established.
(1937, c. 54.)
Editor's Note. — The 1937 amendment inserted the excep-
tion as to Caswell county in the first sentence. The rest of
the section, not being affected by the amendment, is not set
cut here.
§ 1608(n). Civil jurisdiction, extent. — The
jurisdiction of the general county court in civil
actions shall be as follows:
1. Jurisdiction concurrent with that of the jus-
tices of the peace of the county;
2. Jurisdiction concurrent with the superior
court in all actions founded on contract;
3. Jurisdiction concurrent with the superior
court in all actions not founded upon contract;
4. Jurisdiction concurrent with the superior
court in all actions to try title to lands and to pre-
vent trespass thereon and to restrain waste there-
of;
5. Jurisdiction concurrent with the superior
court in all actions pending in said court to is-
sue and grant temporary and permanent restrain-
ing orders and injunctions;
6. Jurisdiction concurrent with the superior
court of all actions and proceedings for divorce
and alimony, or either;
7. Jurisdiction concurrent with the superior
court in all matters pending in said court for the
appointment of receivers, as provided in section
eight hundred and fifty-nine, et seq. of the Con-
solidated Statutes;
8. Jurisdiction concurrent with the superior
court to appoint receivers. (1923, c. 216, s. 14;
1935, c. 171; 1937, c. 58.)
Editor's Note. — The 1937 amendment added paragraphs 7
and 8 to this section.
Court Had No Jurisdiction to Appoint a Receiver for Judg-
ment Debtor Having Property in Another County. — The ju-
risdiction of a general county court is statutory, and it has
no extraterritorial jurisdiction except that expressly given
within the limitations of the Constitution, hence the gen-
eral county court of Buncombe County was held without
jurisdiction to appoint a receiver for a judgment debtor
having property in another county against whom judgment
is rendered in the county court, this section giving no power
to appoint a receiver, and the authority to issue "process"
given by § 1608(t), being limited ordinarily to summons to
§ 1608 (s) 1
COURTS— CIVIL COUNTY COURTS
§ 1608 (xxx)
C. 541, 187 S. E. 813, decided prior to the 1937
mer, 210 N.
amendment.
§ 1608 (s) 1. Application of article. — This arti-
cle shall not apply to any county in which there
has been established a court, inferior to the su-
perior court, by whatever name called, by a spe-
cial act, nor shall this article apply to the follow-
ing counties: Granville, Henderson, Iredell, New
Hanover, Pasquotank, Randolph and Wake, [nor
shall it apply to the counties in the sixteenth
(16th)] seventeenth (17th) except Watauga
county, and nineteenth (19th) judicial districts, ex-
cept Buncombe county. (1924, c. 85, s. 24, f;
1925, c. 9; 1927, c. 103, ss. 1, 2; 1929, c. 159, s. 1;
1931, c. 19; 1937, c. 439.)
Editor's Note. — The 1937 amendment made this article ap-
plicable to Wautauga county and authorized the establish-
ment of a county court therefor.
Art. 25. Practice and Procedure
§ 1608(t). Procedure in civil actions; return of
process.
Reference.— See note to § 1608(n) in this Supplement.
§ 1608 (u). Trial by jury; waiver; deposit for
jury fee. — In all civil actions the parties shall be
deemed to have waived a jury trial unless demand
shall be made therefor in the pleadings of the par-
ties to the action when same are filed. The de-
mand shall be in writing and signed by the party
making it, or by his attorney, and accompanied
by a deposit of three dollars to insure the pay-
ment of the jury tax: Provided, such demand
shall not be used to the prejudice of the party
making it. Any defendant in a criminal action
may demand a trial by jury, in which event such
defendant shall not be required to deposit the sum
of three dollars. Such jury shall be drawn as
herein otherwise provided for. (1923, c. 216, s. 8;
1924, c. 85, s. 1; 1937, c. 56.)
Editor's Note. — Prior to the 1937 amendment demand for
jury trial was required to be made "before the trial begins."
Public Acts 1937, c. 85, applicable only to Duplin county,
struck out the last two sentences of this section.
§ 1608 (cc). Appeals to superior court in civil
actions; time; record; judgment; appeal to su-
preme court. — Appeals in civil actions may be
taken from the general county court to the su-
perior court of the county in term time for er-
rors assigned in matters of law in the same man-
ner as is now provided for appeals from the su-
perior court to the supreme court except that
appellant shall file in duplicate statement of case
on appeal, as settled, containing the exceptions
and assignments of error, which, together with
the original record, shall be transmitted by the
clerk of the general county court to the superior
court, as the complete record on appeal in said
court; that briefs shall not be required to be filed
on said appeal, by either party, unless requested
by the judge of the superior court. The record
on appeal to the superior court shall be docketed
before the next term of the superior court ensuing
after the case on appeal shall have been settled
by the agreement of the parties or by order of
the court, and the case shall stand for argument
at the next term of the superior court ensuing
after the record on appeal shall have been dock-
eted ten days, unless otherwise ordered by the
court. The time for taking and perfecting appeals
shall be counted from the end of the term of the
general county court at which such trial is had.
[ 39
Upon such appeal the superior court may either
affirm or modify the judgment of the general
county court, or remand the cause for a new trial.
From the judgment of the superior court an ap-
peal may be taken to the supreme court as is now
provided by law. (1923, c. 216, s. 18; 1933, c.
109; 1937, c. 84.)
Editor's Note — The 1937 amendment, inserting the second
sentence of this section, provides: "This act shall apply to all
cases tried before the ratification of this act in which an ap-
peal has been entered and time for service of case on appeal
and counter-case or exceptions has been extended by order
of court with consent of counsel for parties."
Superior Court Sits as an Appellate Court.— In hearing
civil cases on appeal from the general county court, the
Superior Court sits as an appellate court, subject to re-
view by the Supreme Court. Jenkins v. Castelloe, 208 N.
C. 406, 408, 181 S. E- 266, citing Cecil v. Snow Lbr. Co.,
197 N. C. 81, 147 S. E. 735.
In Granting a New Trial It Is Essential That the Su-
perior Court Specifically State the Rulings upon Excep-
tions.—Where an appeal is taken from the general county
court to the Superior Court for errors assigned in matters
of law, as authorized by this section, and a new trial is
granted by the Superior Court, it is essential that the rul-
ings upon exceptions granting the new trial be specifically
stated, so that in case of appeal to the Supreme Court, they
may be separately assigned as error in accordance with
Rule 19(3) of the Rules of Practice in the Supreme Court,
and properly considered on appeal. Jenkins v. Castelloe,
208 N. C. 406, 181 S. E. 266.
Where the record is not docketed in the Superior Court
within the time prescribed, the appeal is properly dismissed,
it being formerly provided that appeals from the general
county court shall be governed by the rules governing ap-
peals from the Superior Courts to the Supreme Court, and
dismissal in such circumstances is mandatory under Rule
ot Practice in the Supreme Court No. 5. Grogg v. Graybeal,
209 N. C. 575, 184 S. E. 85, decided prior to the 1937 amend-
ment.
§ 1603 (dd). Enforcement of judgments; stay of
execution, etc.
When the judgment of a general county court is dock-
eted in the Superior Court of the county it becomes a judg-
ment of the Superior Court in like manner as transcripted
judgments of justices of the peace under § 1517, and the
general county court has no further jurisdiction of the case,
and may not thereafter hear a motion for the appointment
of a receiver for the judgment debtor. Essex Inv. Co. v.
Pickelsimer, 210 N. C. 541, 187 S. E- 813.
SUBCHAPTER VI. CIVIL COUNTY
COURTS
Art. 28. Under Chapter 437, Acts of 1937
§ 1603 (vvv). Establishment. — In addition to the
plans now provided by law for the establishment
of courts inferior to the superior court, there may
be established by resolution of a majority of the
members of the board of county commissioners of
any county in the state a court of civil jurisdic-
tion, which shall be a court of record, shall be
called County Civil Court and shall have
civil jurisdiction as herein provided. (1937, c. 437,
s. 1.)
§ 1608 (www). Qualification of judge. — The
county civil court shall be presided over by a
judge, who may be an attorney at law, who shall
at the time of appointment and qualification be an
elector in and for said county, and he shall not by
reason of his term of office be prohibited from
practicing the profession of attorney at law in
other courts except as to matters pending in con-
nection with or growing out of said county civil
court. (1937, c. 437, s. 2.)
§ 1608 (xxx). Appointment of judge; vacancies;
substitute judge. — After the ratification of this ar-
ticle and the establishment of such court by any
county, it shall be the duty of the clerk of the
§ leos(yyy)
COURTS— CIVIL COUNTY COURTS
§ 1808(jjjj)
board of commissioners of such county to im-
mediately notify the governor of the state, who
shall appoint a judge to preside over such court,
and each second year thereafter it shall be the
duty of the governor of the state to appoint the
judge of each such county civil court, who shall
preside over said court; that the said judge shall
hold office for a term of two years and until his
successor is appointed and qualified. Any va-
cancy occurring in the office of judge shall be filled
by the governor of the state.
When the judge of said county civil court is un-
able to hold court on account of sickness, absence,
disqualification or other cause, the governor of
the state shall appoint some other person, who
shall take the same oath and possess the same
qualifications as provided for a judge, to act as
substitute judge, who shall be invested' with all
the powers and duties of the judge. At the time
of fixing the salary for the judge, the board of
county commissioners shall fix a per diem com-
pensation for the substitute judge which shall be
paid out of the salary fixed for the judge. (1937,
c. 437, s. 3.)
§ 1608(yyy). Oath of judge. — Before entering
upon the duties of his office, the said judge shall
take and subscribe an oath of office as is now pro-
vided by law for the judges of the superior court,
and file the same with the clerk of the superior
court of said county; and said clerk shall record
the same. (1937, c. 437, s. 4.)
§ 1608 (zzz). Salary of judge.— The salary of
said judge shall be fixed by the board of commis-
sioners of the county, shall not be decreased dur-
ing the term of office, and shall be paid in monthly
installments out of the funds of the county. The
judge shall be provided by the county board of
commissioners with a suitable and convenient
room for holding court at the county-seat. (1937,
c. 437, s. 5.)
§ 1608(aaaa). Disqualification of judge. — Where
the judge is disqualified by reason of interest in
any case, it shall be removed for trial to the su-
perior court of the county. (1937, c. 437, s. 6.)
§ 1608(bbbb). Clerk of court.— The clerk of the
superior court shall be ex officio clerk of the
county civil court established under the provisions
of this article, and he shall have as nearly as pos-
sible the same duties, powers and responsibilities,
with reference to the county civil court as he has
in his capacity as clerk of the superior court. The
said clerk shall be liable upon his official bond for
the discharge of his duties and caring for funds
paid to him as clerk of the county civil court to
the same extent as he is bound as clerk of supe-
rior court. In addition to the salary or fees paid
him as clerk of superior court, the clerk of the
county civil court shall be paid such additional
reasonable compensation as the board of county
commissioners may fix; and the board of county
commissioners are hereby authorized and empow-
ered to provide the salary of such additional dep-
uty or deputies as he may need. (1937, c. 437,
s. 7.)
§ 1608(cccc). Oath of clerks. — The clerks of
the county civil court, before entering on the du-
ties of their office, shall take and subscribe, be-
fore some officer authorized by law to administer
an oath, the oath required under general law, and
[ 40
in addition thereto shall take and subscribe to an
oath to perform faithfully all the duties required
of them under this article and file such oaths with
the register of deeds for the county. ^1937, c.
437, s. 8.)
§ 1608(dddd). Appointment and removal of
deputies. — Each clerk of the county civil court
shall have the authority to appoint deputy clerks
and the authority to revoke such appointments at
will. He shall make a record of each appoint-
ment and furnish a transcript of such record to
the register of deeds, who shall record the same
in the record of deeds and make a cross-index
thereof. When the appointment of any deputy
clerk is revoked, the clerk shall write on the mar-
gin of the records of such appointment the word
"revoked" and the date of revocation, and sign his
name thereto. (1937, c. 437, s. 9.)
§ 1608 (eeee). Oath and power of deputies. — If
any deputy clerk shall be appointed as provided
in this article, he shall take and subscribe to the
oaths prescribed for clerks. Each deputy clerk
appointed as herein provided shall have as nearly
as possible the same powers and duties, with ref-
erence to the county civil court, as a deputy clerk
of the superior court has with reference to the
superior court. (1937, c. 437, s. 10.)
§ 1608(ffff). Sheriff. _ The sheriff of the
county, or his deputies appointed, shall attend up-
on this court in the same manner and with the
same power and authority as he does and has in
attendance upon the superior court of the county.
The board of county commissioners of the county
are authorized to make said sheriff such additional
allowances as they may deem necessary and
proper for such services, in addition to his salary
or fees now fixed by law. (1937, c. 437, s. 11.)
§ 1608 (gggg). Stenographer. — The board of
county commissioners shall appoint an official
stenographer of the court, whose duties shall be
the same as those of the official stenographer of
the superior court, and the compensation shall be
fixed and paid by the board of county commission-
ers. (1937, c. 437, s. 12.)
§ 1608(hhhh). Jury trial. — In the trial of ac-
tions in said court any party is entitled to the
right of trial by jury as is provided in the trial of
causes in the superior court, unless said right of
trial by jury shall be waived as hereinafter pro-
vided. (1937, c. 437, s. 13.)
§ 1608(iiii). Waiver of jury trial; jurisdiction
concurrent with superior court. — In those cases
in which written pleadings are required to be filed,
the parties shall be conclusively presumed to have
expressly waived their right to trial 'by jury, un-
less at the time of the filing of the complaint or
petition the plaintiff, in writing, demands a jury
trial; or, at the time of the filing of the answer or
other pleading which raises an issue of fact, the
defendant or other party filing such pleading de-
mands, in writing, a jury trial. (1937, c. 437, s.
13(a).)
§ 1608(jjjj). Waiver of jury trial; jurisdiction
concurrent with justice of peace. — In those cases
in which no written pleadings are required, the
parties shall be conclusively presumed to have ex-
pressly waived their right to trial by jury, unless
§ 1608(kkkk)
COURTS— CIVIL COUNTY COURTS
§ 1608 (tttt)
at the time of the issuance of summons the plain-
tiff or petitioner, in writing, demands a jury trial;
or the defendant, at any time before the com-
mencement of the trial, in writing, demands a jury
trial. (1937, c. 437, s. 13(b).)
§ 1608(kkkk). Jury trial in cases instituted in
superior court or before magistrate. — In those
cases which were or may hereafter be instituted
before a justice of the peace and removed or ap-
pealed to this court, and in those cases which were
or may hereafter be instituted in superior court
and removed to this court, a jury trial will be con-
clusively presumed to have been expressly waived
unless the party desiring a trial by jury shall make
a demand therefor, in writing, at any time before
the case is called for trial; in which event the
number of the jury shall be as herein elsewhere
provided. (1937, c. 437, s. 13(c).)
§ 1608(1111). Jury of six; demand and deposit
for jury of twelve.— The jury of said court shall
be a jury of six unless, at any time before the call-
ing of the cause for trial, either party, who has
not waived the right to trial by jury by failing to
demand a jury trial in apt time as provided here-
in, or otherwise, demands a trial by a jury of
twelve, in which event a jury of twelve shall be
impaneled: Provided, that in those cases in which
a jury of twelve is demanded the party shall, at
the time of making the demand, pay to the clerk
of said court a deposit of five dollars to insure the
payment of the jury tax: Provided further, that
where a party making such demand for a jury of
twelve makes affidavit and satisfies the judge or
clerk of said court that he is unable to make the
deposit, such party shall not be required to make
the same. The deposit for jury of twelve shall be
returned to the party making it when the jury tax
is paid by the losing party against whom the costs
are taxed. (1937, c. 437, s. 13(d).)
§ 1608(mmmm). Judge may impanel jury on
own motion. — The judge of said court, when in
his opinion the ends of justice would be best
served by submitting an issue or issues to the jury,
may call a jury of his own motion and submit to
it such issue or issues as he may deem material.
(1937, c. 437, s. 13(e).)
§ 1608 (nnnn). Drawing juries; summons of ju-
rors; pay of jurors. — The regular jurors shall be
drawn from the superior court jury box; the
drawing and summoning of said jurors shall be in
the same manner as jurors are drawn and sum-
moned for the superior court: Provided, however,
only twelve jurors shall be drawn and summoned
for any one week of court unless the judge speci-
fies that a larger number shall be drawn. The
judge of each county civil court, at least thirty
days in advance, shall notify the chairman of the
board of county commissioners when a jury will
be needed.
Jurors shall receive the same compensation as
is provided by law for jurors serving in the su-
perior court, to be paid out of the treasury of said
county on presentation of a ticket duly issued by
the clerk of said court. (1937, c. 437, s. 14.)
§ 1608(oooo). Talesmen. — The judge shall
have the right to call in talesmen to serve as ju-
rors, according to the practice of the superior
court, and to direct the sheriff to summon a suffi-
cient number of talesmen to serve during any one
week or a portion thereof for the proper dispatch
of the business of the court. (1937, c. 437, s. 15.)
§ 1608(pppp). When court opens; terms of
court. — The county civil courts shall be open for
the transaction of business within their jurisdic-
tion whenever matters before the court require at-
tention, except for the trial of issues of fact re-
quiring a jury and the trial of contested causes
wherein the county civil court is exercising juris-
diction concurrent with that of the superior court,
which shall be heard in term time.
The judge of the county civil court is hereby au-
thorized to fix the terms of said court upon con-
sulting with the clerk of the court and the mem-
bers of the bar of the county. (1937. c. 437, s. 16.)
§ 1608 (qqqq). Jurisdiction. — The county civil
court shall have jurisdiction only in civil matters
and as follows:
(1) Jurisdiction concurrent with that of the jus-
tices of the peace of the county;
(2) Jurisdiction concurrent with the superior
court in all actions founded on contract wherein
the amount demanded shall not exceed the sum
of one thousand five hundred dollars, exclusive of
interest and costs;
(3) Jurisdiction concurrent with the superior
court in all actions not founded on contract where-
in the amount demanded shall not exceed the sum
of one thousand five hundred dollars, exclusive of
interests and costs;
(4) Jurisdiction concurrent with the superior
court in all actions to try title to lands, to prevent
trespass thereon, and to restrain waste thereof
wherein the value of the land does not exceed the
sum of one thousand five hundred dollars;
(5) Jurisdiction concurrent with the superior
court in all actions and proceedings for divorce
and alimony, or either, and to make such orders
respecting the care, custody, tuition and mainte-
nance of the minor children of the marriage as
may be proper. (1937, c. 437, s. 17.)
§ 1608(rrrr). Appeals from justice of the peace.
— In all cases where there is an appeal from a jus-
tice of the peace of a county wherein a county
civil court has been established under the provi-
sions of this article, such appeal shall be first
heard de novo in the county civil court in the man-
ner provided herein for hearing causes within the
jurisdiction of a justice of the peace originating in
the said county civil court. Said appeals shall be
docketed in the county civil court within the same
time limit and in the same manner as such ap-
peals are now required to be docketed in the su-
perior court. (1937, c. 437, s. 18.)
§ 1608 (ssss). Removal of cause before justice
of peace. — •When, upon affidavit made before en-
tering upon the trial of any cause before any jus-
tice of the peace of said county, it shall appear
proper for said cause to be removed for trial to
some other justice of the peace, as is now provided
by law, said cause shall be removed for trial to
the said county civil court. (1937, c. 437, s. 19.)
§ 1608(tttt). Pending cases, transfer — By writ-
ten consent of plaintiff and defendant filed with
the clerk of superior court, any case within the
jurisdiction of the county civil court, now or here-
after pending in the superior court, may be trans-
[41]
§ 1608 (uuuu)
COURTS— CIVIL COUNTY COURTS
§ 1608 (yyyy)
ferred to the docket of the county civil court and
there tried; if a jury trial is desired, it shall be
expressed in the agreement to transfer the case;
otherwise, the right to trial by jury shall be con-
clusively presumed to have been expressly waived.
(1937, c. 437, s. 20.)
§ 1608 (uuuu). Records; blanks, forms, books,
stationery. — ■ The clerk of the county civil court
shall keep separate records for use of the said
court to be furnished by the county commission-
ers, and they shall also provide such necessary
blanks, forms, books, and stationery and office
equipment as may be needed by the court; the
clerk shall keep the same in the office of the clerk
of such court. (1937, c. 437, s. 21. J
§ 1608 (vvvv). Processes; pleadings; procedure,
etc. — When the county civil court is exercising
jurisdiction concurrent with that of the superior
court, the rules of processes, pleadings, procedure,
practice, and procuring evidence and judgment
shall conform as nearly as possible to those of the
superior court.
When the county civil court is exercising juris-
diction concurrent with that of justices of the
peace, actions shall be commenced in the county
civil court by summons issued and signed by the
clerk or deputy; and orders to seize property in
claim and delivery proceedings, warrants of at-
tachment and subpoena may be issued by the
clerk or deputy and the other rules of processes,
pleadings, procedure, practice, and procuring evi-
dence and judgments shall conform as nearly as
possible to those of the courts of the justices of
the peace of the county. (1937, c. 437, s. 22.)
§ 1608 (wwww). Appeal to superior court, time
for perfecting appeal, record on appeal, briefs,
judgment, appeal to supreme court. — Appeals in
actions may be taken from the county civil court
within ten days from date of rendition of judg-
ment to the superior court of the county in term
time, for errors assigned in matters of law or le-
gal inference, in the same manner as is provided
for appeals from the superior court to the su-
preme court, except as follows:
(1) The appellant shall cause a copy of the
statement of case on appeal to be served on the
respondent within thirty days from the entry of
the appeal taken, and the respondent, within fif-
teen days after such service, shall return the copy
with his approval or specific amendments endorsed
or attached; if the case be approved by the re-
spondent, it shall be filed with the clerk as a part
of the record; if not returned with objections
within the time prescribed, it shall be deemed ap-
proved: Provided, that the judge trying the case
shall have the power, in the exercise of his discre-
tion, to enlarge the time in which to serve state-
ment of case on appeal and exceptions thereto or
counter statement of case.
(2) The appellant shall file one typewritten
copy of the statement of case on appeal, as set-
tled, containing the exceptions and assignments of
error, which, together with the original record,
shall be transmitted by the clerk of the county
civil court to the superior court as the complete
record on appeal in said court.
(3) The record in the case on appeal to the su-
perior court must be docketed in the superioi
court within ten days after the date of settling the
[4
case on appeal. If the appellant shall fail to per-
fect his appeal within the prescribed time, the ap-
pellee may file with the clerk of superior court a
certificate of the clerk of court from which the ap-
peal comes showing the names of the parties
thereto, the time when the judgment and appeal
were taken, the name of the appellant and the
date of the settling of case on appeal, if any has
been settled, with his motion to docket and dis-
miss said appeal at appellant's cost, which motion
shall be allowed at the first regular term or any
succeeding regular term of the superior court.
(4) Appellant shall file one typewritten brief
with the clerk of superior court, and shall imme-
diately mail or deliver to appellee's counsel a car-
bon typewritten copy thereof. If appellant's brief
has not been filed with the clerk of superior court,
and no copy has been delivered to appellee's coun-
sel within three weeks from the date of settling
the case on appeal, the appeal will be dismissed
on motion of appellee at the next regular term or
any succeeding regular term of the superior court,
unless for good cause shown the court shall give
appellant further time to file his brief.
(5) Appellee shall file one typewritten brief and
a carbon copy thereof with the clerk of superior
court within five weeks from the date of settling
the case on appeal; the copy of same will be fur-
nished counsel for appellant by the clerk of su-
perior court, on application. On failure of the ap-
pellee to file his brief by the time required, the
case will be heard and determined at the next reg-
ular term or any succeeding regular term of the
superior court without argument from appellee,
unless for good cause shown the court shall give
appellee further time to file his brief.
(6) It shall be the duty of any judge of the su-
perior court holding court in any county where a
court is established under the provisions of this
article, to allot sufficient and adequate time dur-
ing each regular term of the superior court held
in such county for the hearing of appeals from the
county civil court of such county: Provided, no
such appeal shall be heard until five days has ex-
pired since the filing of appellee's brief or since
the time appellee's brief should have been filed.
(7) Upon such appeal, the superior court may
either affirm or modify the judgment of the county
civil court or remand the cause for a new trial.
(8) From the judgment of the superior court
an appeal may be taken to the supreme court as
is now provided by law. (1937, c. 437, s. 23.)
§ 1608 (xxxx). Stay of execution; enforcements
of judgments, etc. — Orders to stay execution on
judgments entered in the county civil court shall
be the same as in appeals from the superior court
to the supreme court.
Judgments of the county civil court shall be
docketed in the judgment docket of the superior
court as is provided for judgments of the superior
court, and the judgment when docketed shall in
all respects be a judgment of the superior court
in the same manner and to the same extent as if
rendered by the superior court, and shall be sub-
ject to the same statute of limitations and the stat-
utes relating to the revival of judgments in the
superior court and issuing executions thereon.
(1937, c. 437, s. 24.)
§ 1608(yyyy). Court seal. — The county civil
»]
§ 1608 (zzzz)
DIVORCE AND ALIMONY
§ 1659(a)
courts shall have a seal with the impression
" County Civil Court," which shall be
used in attestation of all summons, other proc-
esses, acts, or judgments of said court whenever
required, and in the same manner and in the same
effect as the seal of other courts of record in the
state of North Carolina. (1937, c. 437, s. 25.)
§ 1608(zzzz). Costs and fees. — There shall be
taxed in the county civil court the same costs and
fees for services of the officers thereof as provided
for the court having concurrent jurisdiction; such
costs and fees shall be taxed and collected by the
clerk and paid over monthly to the treasurer of
the county as county funds to be dealt with by the
commissioners. (1937, c. 437, s. 26.)
§ 1608(aaaaa). Abolishing Court. — This court
may be abolished by resolution of a majority of
the board of county commissioners of any count}''
for such county by giving written notice of such
intention six months prior to the end of the term
of any presiding judge thereof, to become effective
at the end of such term of office; and in case of
the abolition of the court, cases then pending shall
be transferred to the superior court and there
tried. (1937, c. 437, s. 27.)
§ 1608(bbbbb). Existing laws not repealed. —
This article shall not be construed to repeal or
modify any existing laws by which a county court
may be created or to affect or repeal any court
now or hereafter created under existing laws, and
shall only be construed to be an additional method
by which a county court may be established.
(1937, c. 437, s. 28.)
§ 1608(ccccc). Counties excepted. — The provi-
sions of this article shall not apply to Caswell
and Wayne counties. (1937, c. 437, s. 30.)
SUBCHAPTER
VII. COUNTY
COURTS
CRIMINAL
§ 1608(10). Jurisdiction; appeal; judgment
dockei.
Editor's Note.— Public Laws 1937, c. 123, repealed Public
Laws 1931, c. 241, relative to civil jurisdiction of recorder's
court in Gates county.
Art.
CHAPTER 28
DEBTOR AND CREDITOR
1. Assignments for Benefit of Creditors
§ 1611. Trustee to recover property conveyed
fraudulently or in preference.
Judgment Not a Preference Prohibited by This Section.—
A judgment duly rendered by a court of competent ju-
risdiction against a debtor assigning his property to a
trustee for the benefit of creditors is not a transfer or con-
veyance of property by the assignor, although the judgment
is rendered within four months prior to the assignment to
the trustee, and the judgment is not a preference prohib-
ited by this section, and will not be declared void upon
suit of the trustee. Pritchett v. Tolbert, 210 N. C. 644, 188
S. E. 71.
Execution on Personalty Prior to Registration of Deed of
Assignment Creates Prior Lien. — Where a valid judgment
is rendered within four months prior to an assignment for
benefit of creditors by the judgment debtor, and execution
is issued thereon and personal property of the debtor levied
upon prior to the registration of the deed of assignment.
the judgment is a lien upon the personal property levied
upon prior to the title of the trustee in the deed of as-
signment. Pritchett v. Tolbert, 210 N. C. 644, 188 S. E- 71.
CHAPTER 29
DESCENTS
§ 1654. Rules of descent.
Rule 12, Seizin defined. Every person, in whom
a seizin is required by any of the provisions of
this chapter, shall be deemed to have been seized,
if he may have had any right, title or interest in
the inheritance. (Rev., s. 1556; Code, s. 1281; R.
C, c. 38, Rule 13.)
Editor's Note. — A part of this section is reprinted to
correct an error in the original.
Section Held Not to Apply to Person Dying before Its
Enactment. — The provisions of this section held not to af-
fect the distribution of an estate of a person dying prior
to the enactment of the statute, the provision of the stat-
ute that it should apply to estates of such persons whose
estates had not then been distributed being inoperative, and
an illegitimate person dying prior to the enactment of the
statute leaving only the brothers of his mother, or their
legal representatives, him surviving, leaves no person sur-
viving him entitled to inherit from him, and his property,
both real and personal held to vest immediately in the Uni-
versity of North Carolina under the Constitution and laws
of this state. Carter v. Smith, 209 N. C. 788, 185 S. E. 15.
See Editor's Note in the original.
CHAPTER 30
DIVORCE AND ALIMONY
1659. Grounds for absolute divorce.
Cited in Hyder v. Hyder, 210 N. C.
rcwes v. Burrowes, 210 N. C. 788,
486, 187 S. E.
88 S. E. 648.
Bur-
§ 1659(a). Divorce after separation of two
years on application of either party. — Marriages
may be dissolved and the parties thereto divorced
from the bonds of matrimony on the application
of either party, if and when the husband and wife
have lived separate and apart for two years, and
the plaintiff in the suit for divorce has resided in
the state for a period of one year. This section
shall be in addition to other acts and not con-
strued as repealing other laws on the subject of
divorce. (1931, c. 72; 1933, c. 163; 1937, c. 100,
ss. 1, 2.)
Editor's Note.— In Parker v. Parker, 210 N. C. 264, 186 S.
E- 346, the supreme court ruled that no divorce could be
obtained under this section unless a separation agreement, ex-
press or implied, existed. The 1937 amendment, apparently
intended to avoid this construction requiring the existence of
a separation agreement, amends the statute by striking out
the phrase, "either under deed of separation or otherwise."
15 N. C. Law Rev., No. 4, p. 348.
Either party may bring an action for absolute divorce
under this section and the jury's finding that defendant did
not abandon plaintiff without cause does not preclude judg-
ment in plaintiff's favor. Campbell v. Campbell, 207 N. C
859, 176 S. E. 250.
Meaning of "Separation."— The word "separation," as ap-
plied to the legal status of a husband and wife, means more
than "abandonment;" it means a cessation of cohabitation
oi husband and wife, by mutual agreement. Parker v. Par-
ker, 210 N. C. 264, 266, 186 S. E- 346, citing ]>e v. I,ee,
182 N. C. 61, 108 S. E. 352.
Section Did Not Apply Where Separation Was without
Cause and without Agreement.— While the applicant need
not be the injured party, the statute did not authorize
a divorce where the husband has separated himself from
his wife, or the wife has separated herself from her hus-
band, without cause and without agreement, express or im-
plied. Parker v. Parker, 210 N. C. 264, 186 S. E. 346;
Reynolds v. Reynolds, 210 N. C. 554, 187 S. E- 768; Hyder
v. Hyder, 210 N. C. 486, 187 S. E- 798, decided prior to the
1937 amendment.
Question of Resumption of the Conjugal Relation after
[43
§ 1660
DOGS
§ 168]
Separation Is for Jury.— Reynolds v. Reynolds, 210 N. C.
554, 187 S. E. 768, decided prior to 1937 amendment.
Husband Not Entitled to Divorce on His Own Criminal
Conduct. — A husband may not ground an action for di-
vorce under this section on his own criminal conduct to-
wards his wife. Reynolds v. Reynolds, 208 N. C. 428, 181
S. E- 338; Campbell v. Campbell, 207 N. C. 859, 176 S. E-
250; Long v. Long, 206 N. C. 706, 175 S. E. 85, distin-
guished. Followed in Hyder v. Hyder, 210 N. C. 486, 187
S. E- 798.
Cited in Goodman v. Goodman, 208 N. C. 416, 181 S. E.
328.
§ 1660. Grounds for divorce from bed and
board.
Only the party injured is entitled to a divorce under
this section. Vaughan v. Vaughan, 211 N. C. 354, 358,
190 S. E. 492, citing Carnes v. Carnes, 204 N. C. 636,
169 S. E- 222; Albritton v. Albritton, 210 N. C. Ill, 185
S. E. 762.
Applied in Albritton v. Albritton, 210 N. C. Ill, 185
S. E. 762.
§ 1663(1). Resumption of maiden name au-
thorized; adoptions of name of prior deceased
husband validated. — Any woman at any time after
the bonds of matrimony theretofore existing be-
tween herself and her husband have been dis-
solved by a decree of absolute divorce, may re-
sume the use of her maiden name upon applica-
tion to the clerk of the court of the county in
which she resides, setting forth her intention so
to do. Said application shall be addressed to the
clerk of the court of the county in which such
divorced woman resides, and shall set forth the
full name of the former husband of the applicant,
the name of the county in which said divorce was
granted, and the term of court at which such di-
vorce was granted, and shall be signed by the ap-
plicant in her full maiden name. The clerks of
court of the several counties of the state shall
provide a permanent book in which shall be re-
corded all such applications herein provided for,
which shall be indexed under the name of the
former husband of the applicant and under the
maiden name of such applicant. The clerk of
the court of the county in which said application
shall be recorded shall charge a fee of one ($1.00)
dollar for such registration. In every case where a
married woman has heretofore been granted a di-
vorce and has, since the divorce, adopted the
name of a prior deceased husband, the adoption
by her of such name is hereby validated. (1937,
c. 53.)
§ 1664. Custody of children in divorce.
Habeas Corpus Is Not Appropriate Writ When Par-
ties Are Divorced. — Although statutory habeas corpus is
an appropriate writ to determine the custody of children as
between married parents living in a state of separation
under § 2241, it is not appropriate when they are divorced.
McEachern v. McEachern, 210 N. C. 98, 185 S. E- 684.
Five Days' Notice Is Applicable Only to Parent Who
Does Not Have Control of Child. — The provision in the
statute dispensing with the notice of five days, when it
appears that the parent having possession or control of
the infant child of the parties to the action has removed or
is about to remove such child from the jurisdiction of the
court is applicable only where the application or motion is
made by the parent who does not have possession or con-
trol of the child, and is for the protection of the rights of
such parent, and not of the parent who has possession or
control of the child at the time the application or motion
is made. In such case, no notice to the adverse party is
required. Burrowes v. Burrowes, 210 N. C. 788, 794, 188
S. E. 648.
§ 1666. Alimony pendente lite; notice to hus-
band.
III. PREREQUISITES TO AWARD.
A. Entitled to Relief.
Finding Facts as Alleged Sufficient. —
In accord with original. See Vaughan v. Vaughan, 211
N. C. 354, 190 S. E. 492.
Upon application for alimony pendente lite the trial court
is required to find the facts in order that the correctness
of its ruling may be determined on appeal, and the grant-
ing of the application solely upon a finding that defendant
was the owner of certain properties is error. Dawson v.
Dawson, 211 N. C. 453, 190 S. E. 749.
§ 1667. Alimony without divorce.
Independent Suits. —
In accord with original. See Dawson v. Dawson, 211
N. C. 453, 190 S. E. 749.
Section Applies Only to Actions Instituted by Wife.— A
child of divorced parents is not entitled to an allowance
of counsel fees and suit money pendente lite in her ac-
tion against her father to force him to provide for her
support, this section and § 1666 applying only to actions
instituted by the wife, and such right not existing at
common law. Green v. Green, 210 N. C. 147, 185 S. E-
651.
Establishing of One Cause for Divorce Is Sufficient Al-
though Three Alleged.— In a suit for alimony without di-
vorce where three separate grounds for divorce a mensa
et thoro were alleged in the complaint, it was held not
necessary for the plaintiff to establish all of them in or-
der to sustain her action, it being sufficient under this sec-
tion if she established the defendant's guilt of any of the
acts that would constitute a cause for divorce from bed
and board as enumerated in § 1660. Albritton v. Albrit-
ton, 210 N. C. Ill, 116, 185 S. E. 762. See also, Hagedorn
v. Hagedorn, 211 N. C. 175, 189 S. E. 507.
Where the complaint alleges facts sufficient to entitle
plaintiff to alimony pendente lite under this section, it is
not error for the court to grant plaintiff's motion therefor
and refuse to find the facts upon which the order is based,
since it will be presumed that the court found the facts as
alleged in the complaint for the purposes of the hearing.
Southard v. Southard, 208 N. C. 392, 180 S. E- 665.
Cited in Reynolds v. Reynolds, 208 N. C. 578, 182 S. E-
341; Hagedorn v. Hagedorn, 210 N. C. 164, 185 S. E. 768.
CHAPTER 31
DOGS
§ 1673. Amount of tax.
Editor's Note.— Public Laws 1937, c. 45, s. 2, provides that
no person owning six or more fox hounds in Northampton
county shall be required to pay any taxes on any of the
same.
Art. 2. License Taxes on Dogs
§ 1681. Proceeds of tax to school fund; pro-
viso, payment of damages; reimbursement by
owner.—
And provided also that all that portion of this
section after the word "collected" in line three
thereof, shall not apply to Anson, Beaufort, Hert-
ford, Warren, Yadkin, Lincoln and Bladen coun-
ties. (1919, c. 116, s. 7; 1925, cc. 15, 25, 79; 1933,
c. 28; 1935, cc. 30, 361, 402; 1937, cc. 63, 75, 118,
282, 370.)
Editor's Note.— The amendments of 1937 inserted Beaufort,
Warren, Hertford, Anson and Yadkin counties, respectively,
in the last proviso of this section. The rest of the section,
not being affected by the amendments, is not set out here.
Public Laws 1933, c. 273, was repealed as to Mitchell county
by Public Laws 1937, c. 73, and this section applies thereto.
Public Laws 1937, c. 119, applicable only to Buncombe
county, provided that dog taxes be applied one-half to the
general fund of the county and one-half to the school fund.
Public Laws 1937, c. 47, provided the same for Duplin county.
Public Laws 1937, c. 92, provides: "No part of the taxes
paid on dogs pursuant to chapter thirty-one of the Consoli-
dated Statutes, and no part of any taxes collected in Greene
county, shall be liable or used to pay for depredation, damage
or injury to persons or property by dogs."
Public Laws 1937, c. 23, provides that "no damages shall
[ 44
§ 1694(1)
ESTATES
§ 1740
be paid by Caldwell county to any person for sheep or other
property destroyed by dogs in said county."
Public Laws 1937, c. 76, provides that "no damages shall
be paid by Pender county to any person for sheep or other
property destroyed by dogs in said county except such dam-
ages as may be awarded within the discretion of the board
of county commissioners."
CHAPTER 31A
ELECTRIFICATION
Art. 1. Rural Electrification Authority
§ 1694(1). Rural Electrification Authority cre-
ated; appointment; terms of members.
For an analysis of this chapter, see 13 N. C. Law Rev.
No. 4, pp. 382, 383.
Art. 2. Electric Membership Corporations
§ 1694(28). Article complete in itself and con-
trolling.
See the note to § 1037(d) in this Supplement.
CHAPTER 32
ELECTRIC, TELEGRAPH, AND POWER
COMPANIES
Art- 1. Acquisition and Condemnation of
Property
§ 1698. Grant of eminent domain; exception as
to mills and waterpowers.
Cited in Blevins v. Northwest Carolina Utilities, 209 N.
C. 683, 184 S. E- 517, opinion of Clarkson, J.
CHAPTER 33
EMINENT DOMAIN
Art. 1. Right of Eminent Domain
§ 1706. By whom right may be exercised. —
The right of eminent domain may, under the pro-
visions of this chapter, be exercised for the pur-
pose of constructing their roads, canals, pipe
lines originating in North Carolina for the trans-
portation of petroleum products, lines of wires, or
other works, which are authorized by law and
which involve a public use or benefit, by the
bodies politic, corporation, or persons following:
1. Railroads, street railroads, plankroad, tram-
road, turnpike, canal, pipe lines originating in
North Carolina for the transportation of petro-
leum products, telegraph, telephone, electric
power or lighting, public water supply, flume, or
incorporated bridge companies.
(1937, c. 108, s. 1.)
See 15 N. C. Law Rev.. No. 4, p. 362.
Editor's Note.— The 1937 amendment inserted the reference
to pipe lines in the first sentence of this section, and also in
subsection 1. The rest of the section, not being affected by
the amendment, is not set out. See § 3542(d) and note there-
to.
Art. 2. Condemnation Proceedings
§ 1715. Proceedings when parties cannot agree.
Proceeding Governed by Same Rules Laid Down for Civil
Actions. — As a proceeding to condemn land under statu-
tory power is a special proceeding and is so denominated
by this section, the requirements of § 752 that, "except as
otherwise provided," special proceedings shall be governed
by the same rules laid down for civil actions are applicable
thereto. Nantahala Power, etc., Co. v. Whiting Mfg. Co.,
209 N. C. 560, 561, 184 S. E- 48.
Cited in Reed v. State Highway, etc., Comm., 209 N. C.
648, 184 S. E- 513.
[4
§ 1716. Petition filed; contains what; copy
served.
Plaintiff Entitled to Recovery Where Evidence Is Insuffi-
cient to Show Taking Was for Private Purpose. — Where
there is no evidence upon the record showing that the tak-
ing over of a road was for a private purpose sufficient to
raise an issue of fact, the plaintiff is remitted to his rights
under this section and § 3846(bb) for the recovery of just
compensation. Reed v. State Highway, etc., Comm., 209
N. C. 648, 184 S. E- 513.
§ 1723. Exceptions to report; hearing; appeal;
when title vests; restitution.
The title of the landowner is not divested until final con-
firmation and the payment in full of the amount appraised.
Nantahala Power, etc., Co. v. Whiting Mfg. Co., 209 N.
C. 560, 562, 184 S. E- 48. See § 1730 and note.
If Value of Land Is Not Paid within Year the Right to
Condemn Ceases. — After final judgment fixing petitioner's
rights to condemn, and the value of the land, if the ap-
praised value of the land be not paid within one year, the
petitioner's right to take the property shall end, and the
petitioner or claimant shall not be liable for the considera-
tion (value of the land). Nantahala Power, etc., Co. v.
Whiting Mfg. Co., 209 N. C. 560, 562, 184 S. E- 48.
And Petitioners Are Liable for Costs. — This section con-
templates that in the event, for any reason, the condem-
nation proceedings are not carried through, all the costs of
the proceeding, except the appraised value of the land, shall
be paid by the petitioners. Nantahala Power, etc., Co. v.
Whiting Mfg. Co., 209 N. C. 560, 563. 184 S'. E- 48.
§ 1729. Court may make rules of procedure in.
Quoted in Nantahala Power, etc., Co. v. Whiting Mfg.
Co., 209 N. C. 560, 184 S. E- 48.
§ 1730. Change of ownership pending proceed-
ing
The right to convey the land is not affected by the mere
filing of condemnation proceedings, nor by appraisement
without confirmation and payment, as all rights would pass
to the grantee. Nantahala Power, etc., Co. v. Whiting Mfg.
Co., 209 N. C. 560, 562, 184 S. E. 48, citing Livermon v.
Roanoke, etc., R. Co., 109 N. C. 52, 13 S. E. 734; Beal v.
Durham, etc., R. Co., 136 N. C. 298, 48 S. E. 674.
CHAPTER 34
ESTATES
§ 1734. Fee tail converted into fee simple.
III. APPLICATION AND ILLUSTRATIVE CASES.
Devise to Daughter and Her "Bodily Heirs" Creates Fee-
Simple Estate in Daughter.— A devise to testator's daugh-
ter and her bodily heirs, and if she dies without bodily
heirs, then in trust for the heirs of testator's sisters, is
held to create a fee-simple estate in the daughter, defeasi-
ble upon her dying without children or issue, it being ap-
parent that the words "bodily heirs" used in the devise
meant children or issue, as otherwise the limitation over to
the heirs of testator's sisters would be meaningless. Mur-
dock v. Deal, 208 N. C. 754, 182 S. E- 466.
§ 1737. Limitations on failure of issue.
Where father devised the land in question to plaintiff "to
be hers and to her heirs, if any, and if no heirs, to be
equally divided with my other children," and at the time
plaintiff executed deed to defendant, which was refused
by him, plaintiff was married, but had been abandoned by
her husband, and had no children, it was held that the
plaintiff's deed did not convey the indefeasible fee to the
land free and clear of the claims of all persons, whether the
limitation over be regarded as a limitation over on failure
of issue, or as not coming within the rule in Shelley's
case. Hudson v. Hudson, 208 N. C. 338, 180 S. E- 597.
§ 1740. Possession transferred to use in certain
conveyances.
Rule That Beneficial Use Is Converted into Legal Owner-
ship Does Not Apply to Active Trusts. — While this sec-
tion converts the beneficial use into the legal ownership and
unites the legal and equitable estates in the beneficiary,
this rule applies only to passive or simple trusts and not
to active trusts. Chinnis v. Cobb, 210 N. C. 104, 108, 185
>]
§ 1742
EVIDENCE
§ 1795
S. E. 638, citing Lee v. Oates, 171 N. C. 717, 88 S. E-
889; Patrick v. Beatty, 202 N. C. 454, 163 S. E. 572.
An active trust is one where there is a special duty to
be performed by the trustee in respect to the estate, such
as collecting the rents and profits, or selling the estate, or
the execution of some particular purpose. Chinnis v. Cobb,
210 N. C. 104, 108, 185 S. E- 638, citing Perkins v. Brink-
ley, 133 N. C. 154, 45 S. E. 541.
§ 1742, Spendthrift trusts.
Spendthrift Trust Held to Be an Active Trust as to Cor-
pus of Estate.— A spendthrift trust directing the trustee to
collect the rents and profits and pay same over to the ben-
eficiary is an active trust so far as the corpus of the es-
tate is concerned, upon which § 1740 does not operate to
unite the beneficial and legal interests. Chinnis v. Cobb,
210 N. C. 104, 185 S. E. 638.
Trustee May Defend Action without Appearance of the
Cestui.— The trustee of a spendthrift trust may defend an
action seeking to attach the interest of the cestui que trust,
both in the Superior Court and in the Supreme Court on
Appeal, without the appearance of the cestui, the preserva-
tion and protection of the property being incumbent upon
him under the terms of the trust. Chinnis v. Cobb, 210
N. C. 104, 185 S. E- 638.
The interest of the cestui que trust in a spendthrift trust
is not subject to attachment under § 798 et seq., since by
express provision of this section the property is not liable
for the debts of the cestui que trust in any manner. Chin-
nis v. Cobb, 210 N. C. 104, 185 S. E. 638.
§ 1743, Titles quieted.
II. NATURE AND SCOPE.
B. Interest Necessary to Bring Action.
Remedy Given Whether in or Out of Possession. —
In accord with original. See Vick v. Winslow, 209 N. C.
540, 183 S. E. 750.
§ 1744. Remainders to uncertain persons; pro-
cedure for sale; proceeds secured.
See Lancaster
I. GENERAL CONSIDERATION.
Purpose of Section. —
In accord with first paragraph of original,
v. Lancaster, 209 N. C. 673, 184 S. E- 527.
II. ACTIONS IN SUPERIOR COURT FOR SALE.
When Action Abates. — An action against a contingent re-
mainderman to sell the lands under this section, abates
upon the death of the remainderman prior to the termina-
tion of the life estate when his limitation over is made to
depend upon his surviving the life tenant.
211 N. C. 312, 190 S. E. 490.
Redden v. Toms,
III. SALE AND REINVESTMENT.
A. General Rules and Incidents Governing.
Where Commissioner's Authority Was Limited to Sale
of Property and Distribution of Proceeds. — Where a com-
missioner was authorized by the court to sell part of the
lands of an estate for reinvestment under the provisions of
this section, and there were no restrictions in regard to the
use of the property of the estate, and in the commissioner's
report and recommendation of the offer to purchase no au-
thority to restrict the use of the property was asked, and
none granted in the order of the court, it was held that the
commissioner was without authority to insert restrictions
ia the deed to the purchaser, his authority being limited
under the order of the court to the sale of the property and
the distribution of the proceeds of sale. Southern Real Es-
tate Loan, etc., Co. v. Atlantic Refining Co., 208 N. C. 501,
181 S. E- 633.
CHAPTER 35
EVIDENCE
Art. 5. Life Tables
§ 1790. Mortuary tables as evidence.
Editor's Note. — The mortality table set forth in this section
should show the expectancy of life at age ten as 48.7 instead
of 43.7 as printed in the Consolidated Statutes and in the
Code of 1935.
Tables Not Conclusive. —
In accord with original. See Wachovia Bank, etc., Co. v.
Atlantic Greyhound Lines, 210 N. C. 293, 186 S. E- 320;
Hancock v. Wilson, 211 N. C. 129, 189 S. E- 631.
[ 46
§ 1791. Present worth of annuities.
Applicable Only to Annuities. —
In accord with original. See Brown v. Lipe, 210 N. C.
199, 185 S. E- 681.
Art. 6. Competency of Witnesses
§ 1792, Witness not excluded by interest or
crime.
Applied in State v. Perry, 210 N. C. 796, 188 S. E. 639,
dissenting opinion.
§ 1793. Parties competent as witnesses.
Testifying against Co-Defendant. —
In accord with original. See State v. Perry, 210 N. C.
796, 188 S. E- 639, dissenting opinion.
Instructions Not to Incriminate Himself.—
In accord with original. See State v. Perry, 210 N. C.
796, 188 S. E- 639, dissenting opinion.
Testimony of an Accomplice. — An accomplice may not
testify on direct examination to facts tending to incrimi-
nate defendant and at the same time refuse to answer ques-
tions on cross-examination relating to matters embraced in
his examination-in-chief, and where he refuses to answer
relevant questions on cross-examination on the ground that
his answers might tend to incriminate him, it is error for
the court to refuse defendant's motion that his testimony-
in-chief be stricken from the record, the refusal to answer
the questions on cross-examination rendering the testimony-
in-chief incompetent. State v. Perry, 210 N. C. 796, 188
S. E- 639. See Const., Art. I, sec. 11.
§ 1794. Parties competent as witnesses in cer-
tain cases.
Applied in State v. Perry, 210 N. C. 796, 188 S. E- 639,
dissenting opinion.
§ 1795. A party to a transaction excluded, when
the other party is dead.
I. GENERAL CONSIDERATION.
Province of Court to Decide What Testimony May "Come
In." — When a personal representative "opens the door" by
testifying to a transaction, it is not in his province, but
that of the court, to decide what testimony favorable to
the adverse party may "come in." Mansfield v. Wade, 208
N. C. 790, 796, 182 S. E- 475, citing Herring v. Ipock, 187
N. C. 459, 121 S. E. 758.
Neither Husband nor Wife Is an Interested Party.—
Where husband and wife instituted separate suits to recover,
each respectively, for personal services rendered by them to
defendant's testate, it was held that each was competent
to testify for the other, since neither had a direct pecun-
iary interest in the action of the other, and was not there-
fore an interested party in the other's action within the
meaning of this section, the testimony not being as to a
transaction between the witness and the deceased, but be-
tween a third party and deceased. Burton v. Styers, 210
N. C. 230, 186 S. E. 248.
It has been consistently held by this court that the pro-
hibition against the testimony of a "person interested in
the event" extends only to those having a "direct legal
or pecuniary interest," and not to the sentimental inter-
est the husband or wife would naturally have in the law-
suit of the other. Burton v. Styers, 210 N. C. 230, 231,
186 S. E- 248, citing Hall v. Holloman, 136 N. C. 34, 48 S.
E. 515; Helsabeck v. Doub, 167 N. C. 205, 83 S. E. 241, L-
R. A. 1917A, 1; Vannoy v. Stafford, 209 N. C. 748, 184 S.
E- 482. See § 1801 and note.
The Same Being True of Attorney Formerly Holding Note
for Collection. — An attorney formerly holding a note for
collection is not an interested party in an action on the
note within the meaning of this section, prohibiting testi-
mony by interested parties as to transactions with or dec-
larations of a decedent. Vannoy v. Stafford, 209 N. C. 748,
184 S. E- 482.
And of Draftsman Who Failed to Insert Reversionary
Clause in Deed. — In an action for reformation of a deed to
a county board of education for mistake of the draftsman
in failing to insert a reversionary clause therein in accord-
ance with the agreement between the grantors and grantee,
testimony of the draftsman relating to declarations of a
deceased member of the board and of the superintendent of
schools, tending to show that it was agreed that the re-
versionary clause should be inserted, was held not pre-
cluded by this section, the draftsman not being a party in-
§ 1798
EVIDENCE
§ 1808(3)
terested in the event as contemplated by the statute. Ollis
v. Board of Education, 210 N. C. 489, 187 S. E. 772.
Applied in State v. Perry, 210 N. C. 796, 188 S. E- 639,
dissenting opinion.
IV. SUBJECT MATTER OF THE TRANSACTION.
Will Cases —
Under this section a party interested in the result of the
action is incompetent to testify to declaration of the de-
ceased, whose will is under attack, when the issue is as to
undue influence. In re Will of Plott, 211 N. C. 451, 190 S.
E. 717.
§ 1798, Communications between physician and
patient.
What Information Included.—
In accord with original. See Creech v. Sovereign Camp,
W. O. W., 211 N. C. 658, 191 S. E- 840.
Privilege May Be Waived.—
In accord with original. See Creech v. Sovereign Camp,
W. O. W., 211 N. C. 658, 191 S. E. 840.
Judge's Finding of Record That Testimony Necessary.—
In accord with original. See Creech v. Sovereign Camp,
W. O. W., 211 N. C. 658, 191 S. E. 840.
§ 1799. Defendant in criminal action compe-
tent but not compellable to testify.
Cross Reference. — For article discussing the limits to self-
incrimination, see 15 N. C. Eaw Rev., No. 3, p. 229.
Proper Instruction. — The court's remarks to the jury in
instructing them that defendant was within his rights in not
testifying, and that his failure to testify, should not be con-
sidered against him, were held without error upon de-
fendant's exception. State v. Home, 209 N. C. 725, 184
S. E. 470.
Applied in State v. Perry, 210 N. C. 796, 188 S. E. 639,
dissenting opinion.
Cited in State v. Vernon, 208 N. C. 340, ISO S. E. 590.
§ 1801. Husband and wife as witnesses in civil
actions.
Cross Reference. — For note on privileged communications
between husband and wife, see 15 N. C. Eaw Rev., No. 3,
p. 282.
Section Does Not Render Voluntary Disclosure Incompe-
tent.— This section means that neither shall be compelled
to disclose any such confidential communication, but does
not perforce render a voluntary disclosure thereof incom-
petent. Hagedorn v. Hagedorn, 211 N. C. 175, 178, 189 S.
E- 507, citing Nelson v. Nelson, 197 N. C. 465, 149 S. E- 585.
Applied in State v. Perry, 210 N. C. 796, 188 S. E- 639,
dissenting opinion.
§ 1802. Husband and wife as witnesses in crim-
inal actions.
Applied in State v. Perry, 210 N. C. 796, 188 S. E. 639,
dissenting opinion.
Art. 7. Attendance of Witness
§ 1807. Witnesses attend until discharged; ef-
fect of nonattendance.
Applied in State v. Perry, 210 N. C. 796, 188 S. E. 639,
dissenting opinion.
Art. 7A. Attendance of Witnesses from
without State
§ 1808(1). Definitions. — "Witness" as used in
this article shall include a person whose testi-
mony is desired in any proceeding or investiga-
tion by a grand jury or in a criminal action, pros-
ecution or proceeding.
The word "state" shall include any territory of
the United States and District of Columbia.
The word "summons" shall include a subpoena,
order or other notice requiring the appearance of
a witness. (1937, c. 217, s. 1.)
See 15 N. C. Eaw Rev., No. 4, p. 345.
§ 1808(2). Summoning witness in this state to
testify in another state. — If a judge of a court of
record in any state which by its laws has made
provision for commanding persons within that
state to attend and testify in this state certifies,
under the seal of such court, that there is a crim-
[47
inal prosecution pending in such court, or that
a grand jury investigation has commenced or is
about to commence, that a person being within
this state is a material witness in such prosecu-
tion, or grand jury investigation, and that his
presence will be required for a specified number
of days, upon presentation of such certificate to
any judge of a court of record in the county in
which such person is, such judge shall fix a time
and place for a hearing, and shall make an order
directing the witness to appear at a time and
place certain for the hearing.
If at a hearing the judge determines that the
witness is material and necessary, that it will not
cause undue hardship to the witness to be com-
pelled to attend and testify in the prosecution or
a grand jury investigation in the other state, and
that the laws of the state in which the prosecu-
tion is pending, or grand jury investigation has
commenced or is about to commence, and of any
other state through which the witness may be re-
quired to pass by ordinary course of travel, will
give to him protection from arrest and the serv-
ice of civil and criminal process, he shall issue
a summons, with a copy of the certificate at-
tached, directing the witness to attend and tes-
tify in the court where the prosecution is pend-
ing, or where a grand jury investigation has com-
menced, or is about to commence, at a time and
place specified in the summons. In any such
hearing the certificate shall be prima facie evi-
dence of all the facts stated therein.
If said certificate recommends that the witness
be taken into immediate custody and delivered to
an officer of the requesting state to assure his at-
tendance in the requesting state, such judge may,
in lieu of notification of the hearing, direct that
such witness be forthwith brought before him for
said hearing; and the judge at the hearing, being
satisfied of the desirability of such custody and
delivery, for which determination the certificate
shall be prima facie proof of such desirability
may, in lieu of issuing subpoena or summons, or-
der that said witness be forthwith taken into cus-
tody and delivered to an officer of the requesting
state.
If the witness, who is summoned as above pro-
vided, after being paid or tendered by some prop-
erly authorized person the sum of ten cents a mile
for each mile by the ordinary traveled route to
and from the court where the prosecution is pend-
ing and five dollars for each day that he is re-
quired to travel and attend as a witness, fails with-
out good cause to attend and testify as directed
in the summons, he shall be punished in the man-
ner provided for the punishment of any witness
who disobeys a summons issued from a court of
record in this state. (1937, c. 217, s, 2.)
§ 1808(3). Witness from another state sum-
moned to testify in this state. — If a person in any
state which by its laws has made provision for
commanding persons within its borders to at-
tend and testify in criminal prosecutions, or grand
jury investigations commenced or about to com-
mence in this state, is a material witness in a
prosecution pending in a court of record in this
state, or in a grand jury investigation which has
commenced or is about to commence, a judge of
such court may issue a certificate under the seal
of the court, stating these facts and specifying the
§ 1808(4)
FISH AND FISHERIES
§ 1965(a)
number of days the witness will be required. Said
certificate may include a recommendation that the
witness be taken into immediate custody and de-
livered to an officer of this state to assure his at-
tendance in this state. This certificate shall be
presented to a judge of a court of record in the
county in which the witness is found.
If the witness is summoned to attend and tes-
tify in this state he shall be tendered the sum of
ten cents a mile for each mile by the ordinary
traveled route to and from the court where the
prosecution is pending, and five dollars for each
day that he is required to travel and attend as a
witness. A witness who has appeared in accord-
ance with the provisions of the summons shall not
be required to remain within this state a longer
period of time than the period mentioned in the
certificate unless otherwise ordered by the court.
If such witness, after coming into this state, fails
without good cause to attend and testify as di-
lected in the summons, he shall be punished in the
manner provided for the punishment of any wit-
ness who disobeys, a summons issued from a court
of record in this state. (1937, c. 217, s. 3.)
§ 1808(4). Exemption from arrest and service of
process. — ■ If a person comes into this state in
obedience to a summons directing him to attend
and testify in this state he shall not, while in this
state pursuant to such summons, be subject to ar-
rest or the service of process, civil or criminal, in
connection with matters which arose before his
entrance into this state under the summons.
If a person passes through this state while go-
ing to another state in obedience to a summons
to attend and testify in that state, or while return-
ing therefrom, he shall not while so passing
through this state be subject to arrest or the serv-
ices of process, civil or criminal, in connection
with matters which arose before his entrance in-
to this state under the summons. (1937, c. 217,
s. 4.)
§ 1808(5). Uniformity of interpretation. — This
article shall be so interpreted and construed as to
effectuate its general purpose to make uniform
the law of the states which enact it. (1937, c. 217,
s. 5.)
§ 1808(6). Title of article.— This article may be
cited as "Uniform Act to Secure the Attendance
of Witnesses from without a State in Criminal
Proceedings." (1937, c. 217, s. 6.)
Art. 8. Depositions
§ 1821. When deposition may be read on the
trial.
Selected Parts.—
In accord with original. See Enloe v Charlotte Coca-
Cola Bottling' Co., 210 N. C. 262, 186 S. K. 242.
CHAPTER 36
FENCES AND STOCK LAW
Art. 3. Stock Law
§ 1841. Term "stock" defined.
Editor's Note. — For act to place certain portions of Onslow
county under stock law, see Public Laws 1933, c. 151,
amended by Public Laws 1937, c. 356. For act relating to
Currituck county, see Public Laws 1937, c. 389. For act
relating to portions of Dare county, see Public Laws 1937,
c. 213.
§ 1850. Impounding stock at large in territory.
Applied in Beasley v. Fdwards, 211 N. C. 393, 190 S. E.
221.
§ 1851. Owner notified; sale of stock; applica-
tion of proceeds.
Where a party lawfully impounds a sow, sells same under
provisions of a recorder's judgment, and pays himself his
lawful fees for impounding the sow and his damages caused
by the sow, and pays to the owner the amount due him out
of the purchase price, the owner may not complain. Beas-
ley v. Edwards, 211 N. C. 393, 190 S. E. 221.
§ 1864. Local: Depredations of domestic fowls
in certain counties.
Editor's Note.— Public Laws 1937, c. 122, made the pro-
visions of this section, relating to depredations of domestic
fowls, applicable to the county of Wilson.
CHAPTER 37
FISH AND FISHERIES
SUBCHAPTER III. FISH OTHER THAN
SHELLFISH
Art. 9. Commercial Fishing; General Regulations
§ 1965(a). Fishing with nets, etc., by non-resi-
dents prohibited.— It shall be unlawful for any
person, firm or corporation, which has not been
a bona fide resident of the state for twelve
months continuously, next preceding the date on
which the fishing shall commence, to use or
cause to be used in the waters of the state, which
shall include the distance of three nautical miles,
measured from the outer beaches or shores of
the state of North Carolina out and into the wa-
ters of the Atlantic Ocean, any seines, trawls or
nets of any kind for the purpose of taking fish for
sale or exportation. Any person, firm or corpora-
tion violating the provisions of this section shall
be guilty of a misdemeanor, and upon conviction
thereof, for the first offense shall be fined not less
than five hundred dollars ($500.00) nor more than
one thousand dollars ($1,000.00), or imprisoned for
not less than six months nor more than twelve
months, or both in the discretion of the court.
And for any subsequent conviction for a viola-
tion of this, section such defendant shall be fined
not less than one thousand dollars ($1,000.00) nor
more than two thousand dollars ($2,000.00), or
imprisoned for not let less than twelve months
nor more than two years in the discretion of the
court.
The finding by the fisheries commissioner, or
any of his duly authorized agents, of any vessel,
boat, or other craft within the distance of three
nautical miles, as defined in this section, having
any seines, trawls, or nets of any kind or a similar
device aboard with fresh or live fish on deck or
in the hold thereof or in any portion of the said
vessel, boat, or craft, shall be prima facie evidence
that the operator or operators and masters and
members of the crew of said vessel, boat, or other
craft are guilty of a violation of this section.
It shall be the duty of the fisheries commis-
sioner whenever he has reasonable grounds to
believe that this section is being violated in any
particular place, to go himself or send a duly au-
thorized deputy to such place and such officer
finding that the provisions of this section are be-
ing violated is hereby authorized and empowered
to seize and remove all nets, machinery, or other
[ 48
§ 2005
GUARDIAN AND WARD
§ 2150
appliances or paraphernalia being used in viola-
tion of this section, and to sell the same at pub-
lic auction, after advertisement for ten days at
the court house door in the county in which the
seizure was made, or in which the seized prop-
erty is taken under the provisions of this section,
and apply the proceeds from said sale, first to
payment of costs and expenses of such sale and
removal, and pay the balance of said proceeds
remaining, if any, to the school fund of the county
in which or nearest to where the offense is com-
mitted.
Such fisheries commissioner, or his author-
ized deputy, is further authorized and empow-
ered to seize any boat, vessel or ship of any kind
or nature, used in thus violating the law, and to
bring the same into the nearest port in said state
having sufficient depth of water to properly ac-
commodate such boat, vessel or ship so seized.
Such boat, vessel or ship so found being used
contrary to the provisions of this statute, shall
be forfeited to the state and the said fisheries
commissioner is hereby authorized, empowered
and directed to institute proceedings for the pur-
pose of condemning and selling such boat, vessel
or ship, in the name of the state, in the superior
court in the county in which such seized boat,
vessel or ship is taken under the provisions of
this act. The owner of such boat may execute
and deliver to the fisheries commissioner a bond,
with adequate security, not less than the value
of such boat, conditioned to return said boat to
the custody of said fisheries commissioner, if up-
on the trial of the cause in the superior court
as aforesaid it should be determined that the said
boat was forfeited.
This authority to seize the said boat, under the
circumstances hereinbefore detailed, shall in no
way affect the liability of the owners and those I
operating the boat and thus using it in fishing, '
to be prosecuted for the misdemeanor hereinbe-
fore defined. Provided, nothing contained in this
section shall be construed to prevent any person,
firm or corporation, which has been a bona fide
resident of the state of North Carolina for twelve
months continuously next preceding the date on
which the fishing shall commence from employ-
ing non-resident employees in connection with
fishing as authorized by law. (1931, c. 36, s. 1;
1937, c. 261.)
Editor's Note.— The 1937 amendment struck out the last
sentence of the first paragraph and inserted the present last
two sentences in place thereof. It also inserted the second
paragraph, and omitted a provision as to compromise with
boat, etc., owner for violation of section formerly appearing
in the present fourth paragraph.
Art. 10. Commercial Fishing; Local Regulations
Part 2. Streams
§ 2005. Lumber river and waters of Robeson,
Columbus, Hoke, and Scotland: Fishing regulated.
Editor's Note. — For act relating to Columbus county, see
Public-Local Laws 1917, c. 394.
CHAPTER 38
GAME LAWS
Art. 4. Close Season for Game
§ 2110. Foxes.
Editor's Note. — For act relating to close season in Anson
county, see Public -Local Laws 1929, c. 244.
Art. 6. Local Hunting Laws
§ 2141(c) 1. Minimum penalty for violating
game and inland fishing laws. — Any person, per-
sons, firm, partnership, or corporation who is ad-
judged by any court of competent jurisdiction
guilty of violating any law, lawful order, rule or
regulation relative to hunting, trapping, or fishing
shall upon conviction of the first offense be fined
not less than ten ($.10.00) dollars nor more than
fifty ($50.00) dollars or imprisoned for not more
than thirty days for each and every offense.
The provisions of this section shall apply only
to the counties of Beaufort, Buncombe, Gaston,
Granville, Lincoln, and Mecklenburg. (1937, c.
352, ss. 1, 2.)
Art. 7. North Carolina Game Law of 1927
as Amended
§ 2141(1). Powers of commission; to acquire
land.
Delete Editor's Note appearing under this section in orig-
inal.— Ed. note.
§ 2141 (dd). License required.
Editor's Note. — Public Laws 1937, c. 45, s. 1, applicable
only to Northampton county, amended this section by adding
thereto: "Provided, it shall be lawful for any person or per-
sons whether a resident or non-resident of the state of North
Carolina, to hunt foxes with dogs without procuring a hunt-
ing license."
Art. 8. North Carolina Game Law of 1935
§ 2141(1). Title of article.
Editor's Note.— Public Laws of 1935, chapter 486, repealed
all inconsistent acts except Public Laws of 1935, Chapter
160, relating to the protection of migratory waterfowl in
Currituck sound in Currituck county.
Art. 9. Using Silencer on Firearms
§ 2141(28). Possession of firearm silencer, while
hunting game, made unlawful. — It shall be unlaw-
ful for any person while hunting game in this
state to have in his possession a shotgun, pistol,
rifle, or any firearm equipped with a silencer of
any type or kind or any device or mechanism de-
signed to silence, muffle, or minimize the report
of such firearm, whether such silencer or device
or mechanism is separate from or attached to
such firearm. (1937, c. 152, s. 1.)
§ 2141(29). Penalty for violation. — If any per-
son shall be convicted of a violation of this article
he shall be fined not less than one hundred
($100.00) dollars or imprisoned not less than
sixty days, or both, in the discretion of the court.
(1937, c. 152, s. 2.)
CHAPTER 39
GAMING CONTRACTS AND FUTURES
Art. 2. Contracts for "Futures"
§ 2144. Certain contracts as to "futures" void.
Contracts to Which This Section Applies. —
A contract for "cotton futures" in which no actual de-
livery is intended or contemplated is void and no action
may be maintained thereon. Bodie v. Horn, 211 N. C. 397,
190 S. E. 236.
CHAPTER 40
GUARDIAN AND WARD
Art. 1. Jurisdiction in Matter of Guardianship
§ 2150. Jurisdiction in clerk of superior court.
Language of Section Confusing. — The language of the pro-
N. C. Supp.— 4
[ 49
§ 2151
HABEAS CORPUS
§ 2208
viso at the end of this section is confusing. The clause
introduced by the words, "or if" appears by its terms to
relate to guardians of infants only. The words, "idiots,
lunatics, or inebriates" at the end may have been added by
inadvertence. This interpretation is supported by the ob-
vious fact that the designation by an idiot of a guardian
should have no effect. 13 N. C. I^aw Rev., No. 4, p. 387.
Place of Appointment. —
Under this section the appointment of a guardian in a
county other than the one in which the ward's surviving
parent resides or the ward's estate is situate is void. Duke
v. Johnston, 211 N. C. 171, 189 S. E. 504.
Art. 2, Creation and Termination of
Guardianship
§ 2151. Appointment by parents; effect; powers
and duties of guardian.
Father Should Not Be Regarded as Wrongdoer When He
Acts in Good Faith with Child's Money. — Since under this
section the father is natural guardian for his minor chil-
dren he should not be regarded as a trespasser or a wrong-
doer when he acts in good faith with his child's money and
makes purchases for its benefit. L,ifsey v. Bullock, 11 F.
Supp. 728.
§ 2156. Proceedings on application for guard-
ianship.
Failure to Notify Relative of Hearing Does Not Render
Appointment of Guardian Void. — While the failure to no-
tify the relatives of an alleged incompetent of the hearing
to determine her competency is an irregularity, such ir-
regularity does not render the appointment of a guardian
in the proceedings void, but gives the relatives an oppor-
tunity to attack such appointment, and where, upon such
attack, the court finds upon supporting evidence that the
guardian appointed is a fit and suitable person, the relatives
are not entitled to the removal of the guardian. In re
Barker, 210 N. C. 617, 188 S. F,. 205.
§ 2157. Letters of guardianship.
The appointment of a guardian can be shown only by the
records in the office of the clerk of the Superior Court by
whom the appointment was made, or by letters of appoint-
ment issued by the clerk as required by this section, and
parol evidence tending to show appointment is incompetent.
Buncombe County v. Cain, 210 N. C. 766, 188 S'. E. 399.
Art. 4. Powers and Duties of Guardian
§ 2169. To take charge of estate.
Under this section the guardian can select the forum, as
there is no statute to the contrary. L,awson v. L,angley,
211 N. C. 526, 530, 191 S. F- 229.
Art. 5. Sales of Ward's Estate
§ 2180. Special proceedings to sell; judge's ap-
proval required.
Reference.— See § 4103(b) of this Supplement and note
thereto.
Presumption That Statutory Requirements Have Been
Met.— Although this section must be strictly complied with,
where a guardian has applied for permission to mortgage
her wards' land, and the clerk has entered an order there-
for, which order has been approved by the court, there is
a presumption that the statutory requirements have been
met. Quick v. Federal Land Bank, 208 N. C. 562, 181 S.
F- 746.
Where the guardian's application for a loan stated that
the proceeds thereof were to be used to purchase live stock
necessary to the proper operation of the farm, to erect
buildings on the land, and to provide improvements as de-
fined by the Federal Farm I,oan Board, it was held that
under the presumption that the provisions of this section
were followed, the mortgage is valid and binding upon the
wards' estate as to the funds used for permanent improve-
ments on the land, but as to the funds used to purchase
live stock the mortgage is void as to the wards, such fund
not having been used to materially promote their interest,
and the mortgage on the wards' estate in remainder to the
extent of the proceeds used to purchase live stock should
be set aside upon their petition therefor filed upon their
coming of age. Id.
Petition Signed by Person Not a Qualified Guardian Con-
fers No Jurisdiction on Clerk.— A clerk of the Superior
Court has jurisdiction to order the sale of a ward's lands
only upon petition verified by the duly appointed and qual-
ified guardian of the ward, and where such petition is filed
[50
and signed by a person purporting to act as guardian, but
who had not been appointed guardian and had not quali-
fied by filing bond, the petition confers no jurisdiction on
the clerk. Buncombe County v. Cain, 210 N. C. 766, 188
S. F. 399.
And in Such Case the Purchaser at Sale Acquires No
Title Adverse to Infant.— A purchaser of an infant's prop-
erty at a sale made under an order which is void because
the clerk who made the order had no jurisdiction of the
proceeding in which the order was made, acquires no right,
title, interest, or estate in said property, adverse to the
infant. Buncombe County v. Cain, 210 N. C. 766, 775, 188
S. F. 399.
Art. 7. Public Guardians
§ 2193. Powers, duties, liabilities, compensation.
As to money due minor insurance beneficiary, see § 961(a).
Art. 8. Foreign Guardians
§ 2195. Right to removal of ward's personalty
from state. — Where any ward, idiot, lunatic or
insane person, residing in another state or terri-
tory, or in the District of Columbia, or Canada,
or other foreign country, is entitled to any per-
sonal estate in this state, or personal property
substituted for realty by decree of court, or to
any money arising from the sale of real estate,
whether the same be in the hands of any guard-
ian residing in this state, or of any executor, ad-
ministrator or other person holding for the ward,
idiot, lunatic or insane person, or if the same (not
being adversely held and claimed) be not in the
lawful possession or control of any person, the
guardian of the ward, idiot, lunatic or insane per-
son, duly appointed at the place where such ward,
idiot, lunatic or insane person resides, or in the
event no guardian has been appointed the court
or officer of the court authorized by the laws of
the state or territory or for the District of Colum-
bia or Canada or other foreign country to receive
moneys belonging to any infants, idiots, lunatics
or insane persons when no guardian has been ap-
pointed for such person, may apply to have such
estate removed to the residence of the infant,
idiot, lunatic or insane person by petition filed be-
fore the clerk of the superior court of the county
in which the property or some portion thereof is
situated; which shall be proceeded with as in
other cases of special proceedings. (Rev., s. 1816;
Code, ss. 1598, 1601; R. C, c. 54, s. 29; 1820, c.
1044; 1842, c. 38; 1868-9, c. 201, ss. 35, 38; 1874-5,
c. 168; 1913, c. 86, s. 1; 1937, c. 307.)
Editor's Note. — The 1937 amendment made provision for the
event "no guardian has been appointed." It also substituted
"infant" for "ward" in a subsequent part of the section.
CHAPTER 40A
VETERANS' GUARDIANSHIP ACT
§ 2202(12). Compensation at 5 per cent; addi-
tional compensation; premiums on bonds.
Where the clerk entered an order allowing a guardian ad-
ditional compensation for extraordinary services and the
Veterans Administration failed to perfect its appeal from
the clerk's order, and thereafter applied to the judge of
the Superior Court for a writ of certiorari, the petition for
certiorari was denied upon the court's finding of laches and
demerit. In re Snelgrove, 208 N. C. 670, 182 S. E. 335.
CHAPTER 41
HABEAS CORPUS
Art. 2. Application
§ 2208. To judge of supreme or superior court;
in writing.
Sections 463 et seq. concerning venue all refer to "actions"
§ 2210
INSANE PERSONS AND INCOMPETENTS
§ 2304(p)
and have no application to habeas corpus proceedings. Mc-
Eachern v. McEachern, 210 N. C. 98, 185 S. E. 684.
Discretionary Power of Judge as to Place Writ Is Re-
turnable Not Reviewed in Absence of Abuse.— Since any
judge of the Superior Court or Justice of the Supreme
Court has the power to issue a writ of habeas corpus at
any time or any place, he has the discretionary power to
make the writ returnable at such place as he may deter-
mine, which discretion will not be reviewed in the ab-
sence of a showing of abuse or failure to afford full op-
portunity to be heard, and therefore an exception to the
refusal of a motion for change of venue of habeas corpus
proceedings cannot be sustained. McEachern v. McEachern,
210 N. C. 98, 185 S. E- 684.
§ 2210. Issuance of writ without application.
Reference. — See note to § 2208 of this Supplement.
Art. 3. Writ
§ 2212. Penalty for refusal to grant.
Cited in McEachern v. McEachern, 210 N. C. 98, 185 S.
E. 684.
Art. 6. Proceedings and Judgment
§ 2235. When party discharged.
Editor's Note. — Delete the line containing the words
"State Cannot Appeal. — The State can not appeal from an"
immediately preceding the last paragraph in the original.
Art. 7. Habeas Corpus for Custody of Children
in Certain Cases
§ 2241. Custody as between parents in certain
cases; modification of order.
When Section Applies. —
In accord with second paragraph of original. See Mc-
Eachern v. McEachern, 210 N. C. 98, 185 S. E- 684.
When Parents Divorced Section 1664 Applies. —
In accord with original. See McEachern v. McEachern,
210 N. C. 98, 185 S. E- 684.
Delete the word "excluded" near the end of the last sen-
tence of the paragraph under this catchline and substitute
in lieu thereof the word "exclusive." — Ed. note.
Habeas Corpus Not Available Where Divorce Is Granted
in Another State Where Parents Resided. — Habeas corpus
is not available to determine the custody of a child as be-
tween its divorced parents and where the divorce is granted
in another state of which the parents were residents, the
writ is not available to enforce the provisions of the divorce
decree relating to the custody of the child as against the
mother moving to this State and bringing the child with
her. In re Ogden, 211 N. C. 100, 189 S. E- 119.
Findings of Fact Are Conclusive When Based on Evidence.
— The findings of fact by the court in proceedings in ha-
beas corpus, to determine the custody of minor children of
the parties, are conclusive when based on evidence. Mc-
Eachern v. McEachern, 210 N. C. 98, 185 S. E. 684.
§ 2242. Appeal to supreme court.
Decree as between Divorced Parents Is Not Appealable.
— A decree in habeas corpus proceedings to determine the
custody of a child as between its divorced parents is not
appealable, since the proceeding does not come within the
provisions of this and § 2241, nor will the provisions made
for the child be considered when the judge below finds that
the child is in school and is being properly cared for by
the parent having its custody, and awards its custody to
such parent during the school term, the sole remedy be-
ing by certiorari to invoke the constitutional power of the
Supreme Court to supervise and control proceedings .of in-
ferior courts. In re Ogden, 211 N. C. 100, 189 S. E- 119.
CHAPTER 43
INSANE PERSONS AND INCOMPETENTS
Art. 2. Guardianship and Management of
Estates of Incompetents
§ 2285. Inquisition of lunacy; appointment of
guardian.
The effect of this section is to provide that the proceed-
ing may be commenced by the filing of the petition, and
that the inquisition may be held upon the notice therein
provided being served upon the alleged incompetent, thereby
[51
dispensing with the necessity of issuing a summons. The
notice to an incompetent to appear at a time and place
named to present evidence and show cause, if any, why he
should not be declared incompetent serves every function
of a summons. In re Barker, 210 N. C. 617, 620, 188 S.
E- 205.
§ 2287. Restoration to sanity or sobriety; effect;
how determined. — When any insane person or
inebriate becomes of sound mind and memory, or
becomes competent to manage his property, he
is authorized to manage, sell and control all his
property in as full and ample a manner as he
could do before he became insane or inebriate,
and a petition in behalf of such person may be
filed before the clerk of the superior court of the
county of his residence, setting forth the facts,
duly verified by the oath of the petitioner [the pe-
tition may be filed by the person formerly ad-
judged to be insane, lunatic, inebriate or incompe-
tent; or by any friend or relative of said person;
or by the guardian of said person], whereup-
on the clerk shall issue an order, upon notice
to the person alleged to be no longer insane or
inebriate, to the sheriff of the county, command-
ing him to summon a jury of six freeholders to
inquire into the sanity of the alleged sane person,
formerly a lunatic, or the sobriety of such al-
leged restored person, formerly an inebriate. The
jury shall make return of their proceedings un-
der their hands to the clerk, who shall file and
record the same. If the jury find that the person
whose mental or physical condition inquired of
is sane and of sound mind and memory, or is no
longer an inebriate, as the case may be, the said
person is authorized to manage his affairs, make
contracts and sell his property, both real and per-
sonal, as if he had never been insane or inebriate.
(Rev., s. 1893; Code, s. 1672; 1901, c. 191; 1903,
c. 80; 1879, c. 324, s. 4; 1937, c. 311.)
Editor's Note.— The 1937 amendment inserted in this section
the words appearing in brackets.
Art. 3A. Mortgage or Sale of Estates Held by
the Entireties
§ 2294(1). Where one spouse or both incompe-
tent; special proceeding before clerk.
For a complete analysis of this article, see 13 N. C. Eaw
Rev., No. 4, p. 376.
Art. 4. Surplus Income and Advancements
§ 2296. Advancement of surplus income to next
of kin.
Cited in In re Jones, 211 N. C. 704, 191 S. E- 511.
Art. 6. Sterilization of Persons Mentally
Defective
§ 2304(p). Prosecutors designated; duties. — If
the person upon whom the operation is to be per-
formed is an inmate or patient of one of the in-
stitutions mentioned in section 2304(m), the exec-
utive head of such institution or his duly author-
ized agent shall act as prosecutor of the case. The
county superintendent of public welfare may act
as prosecutor or petitioner in instituting steriliza-
tion proceedings in the case of any feeble-minded,
epileptic, or mentally diseased person who is on
parole from a state institution, and in the case of
any such person who is an inmate of a state in-
stitution, when authorized to do so by the super-
intendent of such institution.
(1937, c. 243.)
SITE
-d'ire^cted that the seo-
:ary
§ 2304 (f fa)
JURORS
§ 2312
ond sentence above be inserted after the first sentence. The person, at a rate in excess of six per centum per annum,
rest of the section, not being affected by the amendment, is
not set out.
§ 2304(ft~2). Temporary admission to state hos-
pitals for sterilization. — Any feeble-minded, epilep-
tic, or mentally diseased person, for whom the
eugenics board of North Carolina has authorized
sterilization, may be admitted to the appropriate
state hospital for the performance of such opera-
tion. The order of the eugenics board authorizing
a surgeon on the regular or consulting staff of the.
hospital to perform the operation will be sufficient
authority to the superintendent of such hospital
to receive, restrain, and control the patient until
such time as it is deemed wise to release such
patient. All such admissions shall be at the dis-
cretion of the superintendent of the state hospital,
and in making any agreement with any county or
any state institution to perform such operations,
the state hospital may collect a fee which shall not
be greater than the cost of such operation and
the cost of care and maintenance for the duration
of the operation and the time required for the pa-
tient to recuperate.
The order of the eugenics board and the agree-
ment of the superintendent of the state hospital
to admit such patient shall be full and sufficient
authority for the prosecutor or the sheriff of the
county to deliver such patient to the proper state
hospital. (1937, c. 221.)
CHAPTER 44
INTEREST
§ 2305. Legal rate is six per cent.
Insurance Companies Not Authorized to Charge Interest
in Excess of Legal Rate. — Section 6291 dealing with loans
by insurance companies secured by insurance policies does
not authorize insurance companies to charge interest in
excess of the legal rate prescribed in this section. Cowan
v. Security Life, etc., Co., 211 N. C. 18, 188 S. E\ 812.
§ 2306. Penalty for usury; corporate bonds may
be sold below par.
I. GENERAL CONSIDERATION.
Where Person Is Not Entitled to Statutory Penalty.—
Where a debtor seeks the aid of a court of equity on the
ground that his debt is tainted with usury, he may have
the usurious element, if any, eliminated from his debt only
upon his paying the principal of his debt, with interest at
the legal rate. In such case he is not entitled to the ben-
efit of the statutory penalties for usury. Smith v. Bryant,
209 N. C. 213, 215, 183 S. E. 276.
And where there is no evidence that any holder of the
note executed by plaintiffs has charged or received in-
terest thereon in excess of six per cent, in an action on
the note plaintiffs may not invoke the forfeiture of in-
terest for usury. Id.
And where the creditors of the mortgagor seek to en-
join the foreclosure of a deed of trust on their creditor's
property, and pray for an accounting to ascertain the
amount of the debt upon allegations that usurious interest
was charged thereon, upon sale of the property under
orders of the court, the mortgagee is entitled to the prin-
cipal amount of his debt, plus six per cent interest
thereon, since the plaintiffs, seeking equitable relief, must
do equity, and the mortgagee is entitled to the amount of
the debt, plus the legal interest, unaffected by the forfei-
ture or penalty for usury. Kenny Co. v. Hinton Hotel
Co., 208 N. C. 295, 180 S. E- 697.
The statutory penalty for usury may not be recovered
against the payee of notes secured by deed of trust upon
evidence showing that a certain sum was paid the trustee
in the deed of trust, but not paid to or received by the
payee of the notes. Hunter v. McClung Realty Co., 210
N. C. 91, 185 S. E. 461.
Insurance Companies Subject to Penalty. — An insurance
company which charges, retains, or receives interest on a
loan made by it in this State, to a policyholder or other
[ 52
is subject to the penalties prescribed by this section not-
withstanding the provisions of § 6291 as to the premiums
paid on policies. Cowan v. Security Life, etc., Co., 211
N. C. 18, 22, 188 S. E- 812.
II. SUBSTANCE CONTROLS NATURE OF TRANS-
ACTION.
B. Specific Instances.
Sum. Paid to Trust Company Held to Be a Reasonable
Brokerage Fee. — $2,600 paid to a trust company for its serv-
ices in handling ninety $1,000 bonds bearing interest at the
legal rate was held not to constitute usury, but a reason-
able brokerage fee. McCubbins v. Virginia Trust Co., 80
F. (2d) 984.
VI. PLEADING AND PRACTICE.
Evidence Properly Submitted to Jury. — Where the plain-
tiff alleged usury and the defendant contended that the
transaction was within the commission for the sale of bonds
exception to the usury law it was held that as the evidence
was conflicting it was properly submitted to the jury, and
was sufficient to support its verdict in plaintiff's favor.
Sherrill v. Hood, 208 N. C. 472, 181 S. E- 330.
New Note Must Be in the Nature of a Compromise in
Order to Constitute a Waiver of Right to Plead Usury. — A
usurious contract is not purged of the usury by the exe-
cution of renewals or by a change in the form of the con-
tract, or by the giving of a separate note for the usurious
charge, and in order for an agreement as to the total debt
and the execution of a new note therefor to constitute a
waiver of the right to plead usury, the new amount arrived
at must be agreed to by the debtor as just and due the
creditor, taking into consideration his claim of usury, and
be in the nature of a compromise and settlement and be a
novation rather than a renewal. Hill v. Lindsay, 210 N.
C. 694, 188 S. E. 406.
Thus where it was found that the parties agreed upon
the total amount of the debt after an accounting involving
the credit of sums obtained from the sale of collateral given
for the debt, but not involving the question of usury, and
that the debtor executed a new note for the balance thus
arrived at, it was held insufficient to support the court's
conclusion of law that the debtor waived the right to claim
usury, the transaction being a renewal rather than a no-
vation. Id.
§ 2309. Contracts, except penal bonds, and
judgments to bear interest; jury to distinguish
principal.
Interest Imposed by Law in Nature of Damages. — A debt
draws interest from the date it becomes due, and when in-
terest is not made payable on the face of the instrument,
payment of interest will be imposed by law in the nature
of damages for the retention of the principal of the debt.
Security Nat. Bank v. Travelers' Ins. Co., 209 N. C. 17,
182 S. E- 702.
Facts Not Excusing Payment of Interest by Insurance
Company. — Where under the terms of a policy of insurance
payment is to be made to the beneficiary immediately upon
receipt of due proof of death of insured, the failure of the
insurer to make payment until more than a year after re-
ceipt of such due proof entitles the beneficiaries to interest
on the amount from the date of insurer's receipt of due
proof, and payment of interest will not be excused because
payment by insurer was delayed by reason of the fact that
the trust agreement under which the policy was assigned
was changed without notice to insurer by adding an indi-
vidual trustee, and the fact that the corporate trustee be-
came insolvent before payment and a substituted trustee
appointed and insurer did not have notice of such substitu-
tion until a much later date, insurer having had the use
of the money during the period of delay. Security Nat.
Bank v. Travelers' Ins. Co., 209 N. C. 17, 182 S. E. 702.
CHAPTER 45
JURORS
Art. 1. Jury List and Drawing of
Original Panel
§ 2312. Jury list from taxpayers of good char-
acter.
Editor's Note.— Public Laws 1937, c. 19, applicable only to
Ashe county, changed the date for selecting the jury list to
the first Monday in March.
Public Laws 1937, c. 200, amended this section by adding
the following: "In Ashe county, non-payment of taxes shall
§ 2313
LANDLORD AND TENANT
§ 2373,
as to drawing
shall be
week of
not be a bar to jury service nor prevent the placing of the
names of persons otherwise qualified upon the jury list for
said county."
§ 2313. Names on list put in box.
Editor's Note.— Public Laws 1937, applicable only to Ashe
county changed date for putting names in box to "first
Monday in March or a date selected and approved on the
first Monday in March."
Applied in State v. Walls, 211 N. C. 487, 191 &'. E. 232.
§ 2314. Manner of drawing panel for term from
box.
Findings That Section Complied with Conclusive. —
In accord with original. See State v. Walls, 211 N. C.
487, 191 S. E. 232.
Child Draws Jurors to Prevent Fraud. — The reason fot
having a child not more than ten years of age to draw the
jurors is to prevent fraud in the selection of the jury, so
that the law can be administered impartially and without
discrimination. The child draws from the jury box the
names of all sorts and conditions of men, white and negro
persons, Jew and Gentile, who are qualified to serve un-
der the law. A more perfect system could hardly be de-
vised to insure impartiality. State v. Walls, 211 N. C.
487, 494, 191 S. E- 232.
Effect of Excluding Negroes from Grand Jury. — The ex-
clusion of all persons of the negro race from a grand jury,
v/hich finds an indictment against a negro, where they are
excluded solely because of their race or color, denies him
the equal protection of the laws in violation of the Con-
stitutions of North Carolina and of the United States.
State v. Walls, 211 N. C. 487, 494, 191 S. E. 232.
§ 2315. Local modifications
panel. — ■
In Ashe county twenty-four jurors
drawn and summoned for the second
each civil term of court held in said county. (Rev.,
s. 1959; 1907, c. 239; Ex. Sess., 1913, c. 4; P. L.,
1915, cc. 233, 744, 764; 1921, c. 142; 1923, c. 107,
s 2; 1923, c. 117; 1937, c. 19.)
Editor's Note.— The 1937 amendment added the above para-
graph. The rest of the section, not being affected by the
amendment, is not set out.
Art. 2. Petit Jurors; Attendance, Regulation
and Privileges
§ 2321. Summons to talesmen; their disqualifi-
cations,
Instruction of Court Held Not to Be an Order under
This Section. — Where upon adjournment the court in-
structed the sheriff to summon a number of men to act
as talesmen in a case proposed to be called for the next
day and upon the trial defendants moved that none of the
men so summoned and none of the jurors already in the
box should serve, but that the jury be selected from by-
standers, it was held that the instruction of the court
was not an order under this section ior talesmen or a
special venire, and that the jurors summoned being sub-
ject to all the qualifications of talesmen, and defendants
having failed to exhaust their respective challenges to the
poll, defendants' exceptions to the refusal of their mo-
tions could not be sustained. State v. Anderson, 208 N.
C. 771, 182 S. E. 643.
§ 2329. Exemptions from jury duty. —
The clerk of the superior court of each county
is hereby empowered to excuse from jury duty
any person or persons exempt under subsection
one prior to the convening of the term of court
for which such person or persons are required to
serve as jurors. (1937, c. 151.)
Editor's Note. — The 1937 amendment directed that the above
paragraph be added to this section. The rest of the section,
not being affected by the amendment, is not set out.
Art. 4. Grand Jurors
§ 2334. Grand juries in certain counties.
Editor's Note. — For act relating to New Hanover county,
see Public Taws 1937, c. 77. For act relating to Rowan
county, see Public Laws 1937, c. 78. For act relating to
Scotland county, see Public Laws 1924, Ex. Sess., c. 28,
amended by Public Laws 1937, c. 372.
Public Laws 1937, c. 20, repealed Public Laws 1935, c. 4,
providing for selection of grand jury for Macon county.
§ 2334(b). Same — In Durham county. — At the
first term of court for the trial of criminal cases
m Durham county after the first day of July, one
thousand nine hundred and twenty-nine, there
shall be chosen a grand jury as now provided by
law, and the first nine members of said grand
jury chosen at said term shall serve for a term
of one vear, and the second nine members of said
grand jury so chosen shall serve for a term of six
months, and thereafter at the first regular and not
special term of criminal court after the first days
of January and July of each year there shall be
chosen nine members of said grand jury to serve
for a term of one }-ear. (1929, c. 122, s. 1; 1937,
c. 21.)
Editor's Note. — The 1937 amendment inserted the words
"regular and not special" in the tenth and eleventh lines of
this section.
§ 2336. Foreman may administer oaths to wit-
nesses.
Section Directory Merely. — ■
In addition to the cases treated under this catchline in
the original, see State v. Lancaster, 210 N. C. 584, 187
S. E- 802.
CHAPTER 46
LANDLORD AND TENANT
Art. 1. General Provisions
§ 2343. Term forfeited for non-payment of rent.
Section Not Applicable Where in the Lease the Lessee
Waives All Notice to Vacate. — Tucker v. Arrowood, 211 N.
C. 118, 119, 189 S. E. 180'.
§ 2352. Lessee may surrender, where building
destroyed or damaged.
Damage Insufficient to Enable Lessee to Surrender Prem-
ises.—Carolina Mtg. Co. v. Massie, 209 N. C. 146, 183 S.
E. 425.
Art. 3. Summary Ejectment
§ 2365. Tenant holding over may be dispos-
sessed in certain cases.
V. THE ACTION.
A landlord may institute suit in the Superior Court to
eject his tenant, the remedy of summary ejectment before a
justice of the peace not being exclusive, and in such action
the Superior Court acquires jurisdiction where the defend-
ant denies plaintiff's title, controverts the allegations of
tenancy, and pleads betterments. Bryan v. Street, 209 N.
C. 284, 183 S. E. 366V
§ 2367. Summons issued by justice on verified
complaint.
Section Is Not an Exception to Requirement of § 446. —
While this section clearly provides that the agent or at-
torney of the lessor may make the oath in writing re-
quired in actions in summary ejectment, it does not pro-
vide an exception to the requirement of § 446. that "every
the real party
211 N. C. 54,
name of
. Tustice,
action must be prosecuted in the
in interest." Choate Rental Co. >
55, 188 S. E- 609.
§ 2372. Rent and costs tendered by tenant.
Where Tender of Rents Does Not Prevent Forfeiture. —
Where the lease provides that the landlord shall have the
option to declare the lease void upon failure of lessee to
pay rent when due, and waives notice to vacate, lessee may
not prevent forfeiture by tendering rents due upon the trial.
Tucker v. Arrowood, 211 N. C. 118, 189 S. E- 180.
§ 2373. Undertaking on appeal; when to be in-
creased.— Either party may appeal from the judg-
ment of the justice, as is prescribed in other
cases of appeal from the judgment of a justice;
53
§ 2429
LOCAL GOVERNMENT ACT
§ 2492(50)b
except in the counties of Iredell, Mecklenburg,
Granville, Watauga, Davie, and Swain, upon ap-
peal to the superior court either plaintiff or de-
fendant may demand that the same shall be tried
at the first term of said court after said appeal is
docketed in said court, and said trial shall have
precedence in the trial of all other cases, except
the cases of exceptions to homesteads: Provided,
that said appeal shall have been docketed at least
ten days prior to the convening of said court:
Provided, further, that the presiding judge, in his
discretion, may take up for trial in advance any
pending case in which the rights of the parties
•or the public require it; but no execution com-
manding the removal of a defendant from the
possession ofr the demised premises shall be sus-
pended until the defendant gives an undertak-
ing in an amount not less than one year's rent
of the premises, with sufficient surety, who shall
justify and be approved by the justice, to be void
if the defendant pays any judgment which in that
or any other action the plaintiff may recover for
rent, and for damages for the detention of the
land. At any term of the superior court of the
county in which s-uch appeal is docketed after
the lapse of one year from the date of the filing
of the undertaking above mentioned, the tenant,
after legal notice to that end has been duly exe-
cuted on him, may be required to show cause
why said undertaking should not be increased to
an amount sufficient to cover rents and damages
for such period as to the court may seem proper,
and if such tenant fails to show proper cause and
does not file such bond for rents and damages as
the court may direct, or make affidavit that he
is unable so to do and show merits, his appeal
shall be dismissed and the judgment of the jus-
tice of the peace shall be affirmed. (Rev., s. 2003;
Code, s. 1772; 1868-9, c. 156, s. 25; 1883, c. 316;
1921, c. 90; Ex. Sess., 1921, c. 17; 1933, c. 154;
1937, c. 294.)
Editor's Note.— The 1937 amendment struck out the word
"Craven" formerly appearing in line five of this section.
CHAPTER 48
LIBEL AND SLANDER
§ 2429. Libel against newspaper; notice before
action.
Applied in Harrell v. Goerch, 209 N. C. 741, 184 S. % 489.
§ 2430. Effect of publication in good faith and
retraction.
Actual Damages Only Where Publication Is Made in Good
Faith and There Has Been a Correction.— Where plaintiff's
evidence establishes a false publication, and defendant's evi-
dence shows that the publication was made in good faith
through error, and that a correction and retraction was pub-
lished upon defendant's ascertaining the facts, plaintiff _ is
entitled to recover the actual damage sustained by him.
Lay v. Gazette Pub. Co., 209 N. C. 134, 183 S. % 416.
And No Punitive Damages in the Absence of Malice, or
Wantonness and Recklessness.— Lay v. Gazette Pub. Co.,
209 N. C. 134, 183 S. E. 416.
When Malice May Not Be Inferred by Jury.— Malice may
not be inferred by the jury from a false publication when
defendant's uncontradicted evidence rebuts the presumption
by showing that the publication was made in good faith
through error, and that a correction and retraction was
published upon defendant's ascertaining the facts. Lay v.
Gazette Pub. Co., 209 N. C. 134, 183 S. E. 416.
[54]
CHAPTER 49
LIENS
Art. 1. Mechanics', Laborers' and Material-
men's Liens
§ 2433. On buildings and property, real and
personal.
IV. PROPERTY COVERED.
Lien on Personalty Is Dependent upon Possession. — While
this section provides for a lien not only upon buildings and
lots, but also upon "any kind of property, real or personal,"
other sections of the lien law provide the conditions upon
which the lien is to come into existence and continue; and
in case of personal property the lien is dependent upon
possession and cannot be obtained by the filing of notice.
Elk Creek Lbr. Co. v. Hamby, 84 F. (2d) 144, 147.
§ 2435. On personal property repaired.
The lien provided for by this section is dependent upon
possession. Elk Creek Lbr. Co. v. Hamby, 84 F. (2d) 144,
147.
§ 2436. Laborer's lien on lumber and its prod-
ucts.
Reason for Enactment of Section. — It was because a lien
could not be obtained for labor performed in the manufac-
ture of lumber unless the party claiming it retained pos-
session, that the Legislature enacted this section. Elk
Creek Lbr. Co. v. Hamby, 84 F. (2d) 144, 147.
Laborer Has No Lien unless He Complies with Section
or Retains Possession. — A laborer who engages in the man-
ufacture of lumber has a lien thereon under section 2435,
for his just and reasonable charges so long as he retains
possession of the lumber. A laborer, even though he does
not retain possession, is entitled to a lien for wages for not
exceeding thirty days if he gives the notice required by this
section. But he obtains no lien unless he complies with this
section or unless he retains possession so that he may assert
a lien under § 2435. Elk Creek Lbr. Co. v. Hamby, 84 F.
(2d) 144, 147.
Preferred Lien Only When Section Strictly Complied with.
— This section gives to laborers engaged in logging, saw-
ing, etc., a lien on the lumber of their manufacture, which
is superior to all other claims thereon, except that of a
purchaser for value without notice. It gives this preferred
lien, however, only for the wages of not exceeding thirty
days labor, and only on condition that the provisions of this
section be strictly complied with. Elk Creek Lbr. Co. v.
Hamby, 84 F. (2d) 144, 146.
Art. 2. Subcontractors', etc., Liens and Rights
against Owners
§ 2445. Contractor on municipal building to
give bond; action on bond.
Reference.— See 13 N. C. Law Rev., No. 4, p. 368, for an
analysis of this section as amended in 1935.
CHAPTER 49 (B)
LOCAL GOVERNMENT ACT— VALIDA-
TION OF INDEBTEDNESS OF UNIT
Art. 1. Local Government Commission and
Director of Local Government
§ 2492(50)b. Provisions in bond resolutions set
out.
In Nash v. Board of Com'rs, 211 N. C. 301, 304, 190 S.
E. 475, the provision that the holders or purchasers of said
bonds "shall be subrogated to all the rights and powers of
the holders of such indebtedness," which said provision was
given "the force of contract between the unit and the_ hold-
ers of said bonds," and was incorporated in the ordinance
authorizing issuance of the bonds, hence the provision, hav-
ing the sanction of law, will enter into and become an in-
tegral part of the bonds when issued, with contractual
force and effect, which may not be impaired by subsequent
legislation.
§ 2492(52)
MILLS
§ 2532
Art. 2. Validation of Bonds, Notes and
Indebtedness of Unit
§ 2492(52). "Unit" denned.
Cited in Castevens v. Stanly County, 211 N. C. 642, 191
S. E- 739.
§ 2492(55). Test cases testing validity of funding
bonds. — ■
Jurisdiction of all parties defendant may be had
by publication of a summons once a week for
three successive weeks in some newspaper of gen-
eral circulation published in each county in which
any part of the unit lies, and jurisdiction shall be
complete within twenty days after the date of the
last publication of such summons in the manner
herein provided.
(1937, c. 80.)
Editor's Note.— The 1937 amendment, applicable to pro-
ceedings pending or hereafter instituted, substituted the
words "date of the last" for the word "full" formerly ap-
pearing in the third sentence of this section. The rest of
the section, not being affected by the amendment, is not set
out.
The action authorized by this and the following four sec-
tions is in the nature of a proceeding in rem, and is ad-
versary both in form and in substance. These sections
contemplate that issues both of law and of fact may be
raised by pleadings duly filed, and that such issues shall
be determined by the court. The court has no power by
virtue of these sections to validate bonds which are for
any reason invalid. It has power only to determine whether
or not on the facts as found by the court and under the
law applicable to these facts, the bonds are valid. Caste-
vens v. Stanly County, 211 N. C. 642, 650, 191 S. E- 739.
Service of Summons by Publication Is Sufficient. — The
contention that an owner of taxable property within the
unit, or a citizen residing therein, may be deprived of his
property, without due process of law, or contrary to the
law of the land, by a decree or judgment in the action de-
claring or adjudging that the bonds and tax to be levied
for their payment, are valid, because it is not required by
this section that his name shall appear in the summons or
in the complaint, or that the summons shall be served on
him personally, cannot be sustained. The action is de-
clared by this section to be in the nature of a proceeding in
rem. In such case, all persons included within a well de-
fined class may be made parties defendant, and service of
summons by publication is sufficient, although such per-
sons are not named in the summons. Castevens v. Stanly
County, 211 N. C. 642, 651, 191 S. E. 739.
If Published as Required by This Section. — See Castevens
v. Stanly County, 211 N. C. 642, 651, 191 S. E- 739.
§ 2492(57). Judgment establishing validity of
issue.
Section Does Not Estop Taxpayer from Challenging Va-
lidity of Bonds. — The contention that by this section an
owner of taxable property within the unit, or a citizen re-
siding therein, is estopped from challenging the validity of
the bonds and of the tax, without having had an oppor-
tunity to be heard, cannot be sustained. No decree or
judgment adverse to his rights can be rendered in an ac-
tion instituted and prosecuted in accordance with the pro-
visions of the statute, until every taxpayer and citizen of
the unit has been lawfully served with summons, and
until he has had ample opportunity to appear and file such
pleadings as he may wish. If he has failed to avail him-
self of his constitutional rights, which are fully protected
by the statute, he has no just ground of complaint that
the court will not hear him when he invokes its aid after
the decree or judgment has been finally rendered, and
others have relied upon its protection. Castevens v. Stanly
County, 211 N. C. 642, 651, 191 S. E. 739.
§ 2492(59). Levying special tax for proposed
issues.
This section and the four preceding sections are not un-
constitutional either on the ground that the statute confers
nonjudicial functions on the Superior Courts of this state
or on the ground that the statute denies due process of
law to taxpayers or citizens of a local governmental unit in
this state, in violation of the provisions of the Fourteenth
Amendment to the Constitution of the United States, or of
the 17th section of Article I of the Constitution of North
Carolina. Castevens v. Stanly County, 211 N. C. 642, 652,
191 S. E. 739.
Art. 1.
CHAPTER 51
MARRIED WOMEN
Powers and Liabilities of Married
Women
§ 2506. Property of married woman secured to
hei\
What Is Sufficient Written Assent to Make Wife's Deed
Valid.— Since the deed of the husband conveys no title to
his wife's land, but evidences his written assent to her
conveyance, upon reason and authority, subscribing his
name under seal to her deed, and acknowledging his exe-
cution thereof as required by law, is a sufficient written
assent to make her deed valid. Joiner v. Firemen's Ins.
Co., 6 F. Supp. 103, 104.
§ 2507. Capacity to contract.
I. IN GENERAL.
Effect of Section.—
In accord with original. See Davis v. Cockman, 211 N.
C. 630, 191 S. E. 322.
IV. THE ACTION FOR BREACH.
Where Specific Performance May Be Decreed. — Since the
wife's contracts are valid without the written assent of her
husband, and she is liable in damages for a breach thereof,
specific performance may be decreed where the husband
has subscribed his name under seal to her deed. Joiner
v. Firemen's Ins. Co., 6 F. Supp. 103.
§ 2515. Contracts of wife with husband affect-
ing corpus or income of estate.
I. IN GENERAL.
Section Does Not Apply to Confession of Judgment in
Favor of Creditors. — A judgment by confession in favor of
creditors against a husband and wife is valid and the pri-
vate examination of the wife is not necessary under this
section which is applicable only to contracts between hus-
band and wife. Davis v. Cockman, 211 N. C. 630, 191 S.
E. 322.
IV. EFFECT OF NONCOMPLIANCE.
Defective Paper Good as Color of Title. —
If such deed is not color of title, it is at least some evi-
dence, under the ancient document rule, to be submitted to
the jury on the question of adverse possession for 20 or
30 years. Owens v. Blackwood Lbr. Co., 210 N. C. 504,
184 S. E- 804.
§ 2519. Estate by the curtesy.
Applied in Caskey v. West, 210 N. C. 240, 186 S. E. 324.
Art. 3. Free Traders
§ 2530. Abandonment by husband.
Cited in Hudson v. Hudson, 208 N. C. 338, 180 S. E. 597.
CHAPTER 52
MILLS
Art. 1. Public Mills
§ 2532. Miller to grind according to turn; tolls
regulated. —
Provided, further, that in Northampton, Chow-
an and Franklin counties it shall be lawful for
water mills to take for toll for grinding one-
sixth of the Indian corn and wheat, and one-
twelfth part for chopping grain of any kind.
(1937, c. 4.)
Editor's Note. — The 1937 amendment inserted the word
"Chowan" in the second proviso. The rest of the section,
not being affected by the amendment, is not set out.
For act applying only to Sampson county, see Public L,aws
1937, c. 164.
[55]
§ 2559
MORTGAGES AND DEEDS OF TRUST
§ 2593(b)
CHAPTER 53
MONOPOLIES AND TRUSTS
§ 2559. Combinations in restraint of trade il-
legal.
Monopoly Denned. — "A monopoly consists in the owner-
ship or control of so large a part of the market supply or
output of a given commodity as to stifle competition, re-
strict the freedom of commerce, and give the monopolist
control over prices." State v. Atlantic Ice, etc., Co., 210
N. C. 742, 747, 188 S. E- 412, quoting Black's Law Diction-
ary (3d Ed.), p. 1202.
In the modern and wider sense monopoly denotes a com-
bination, organization, or entity so extensive and unified
that its tendency is to suppress competition, to acquire a
dominance in the market, and to secure the power to con-
trol prices to the public harm with respect to any com-
modity which people are under a practical compulsion to
buy. State v. Atlantic Ice, etc., Co., 210 N. C. 742, 747, 188
S. E. 412, citing Massachusetts v. Dyer, 243 Mass. 472, 138,
N. E. 296.
Stated in Bennett v. Southern Ry. Co., 211 N. C. 474, 191
S. E. 240.
§ 2563. Particular acts defined.
The violation of this section is made criminal by § 2564,
and as ordinarily the violation of a criminal statute may
not be enjoined, individuals who apprehend injury by such
violation are afforded a remedy by indictment and prose-
cution under § 395(2). Carolina Motor Service v. Atlantic
Coast Eine R. Co., 210 N. C. 36, 185 S. E- 479, 104 A. L.
R. 1165.
The provisions of the monopoly statutes apply to railroads
just as they do to individuals and other corporations. Ben-
nett v. Southern Ry. Co., 211 N. C. 474, 482, 191 S. E- 240.
Subdivision three sufficiently defines the offense therein
prohibited and is constitutional. State v. Atlantic Ice, etc..
Co., 210 N. C. 742, 188 S. E- 412.
Coal Dealers Held to Be Competent Witnesses. — Where in
the prosecution for violation of subdivision three of this sec-
tion the State was allowed to introduce the testimony of
coal dealers in the same city as to the cost of handling coal,
the opinion testimony being based upon complicated and
detailed facts relating to costs of buying, shipping, truck-
ing, handling, shrinkage, labor, repairs, etc., the witnesses
having had years of experience in operating their respective
businesses in the city, it was held that the witnesses were
experts and their opinion testimony was competent and was
properly received in evidence. State v. Atlantic Ice, etc.,
Co., 210 N. C. 742, 188 S. E. 412.
Proper Instruction as to Injuring or Destroying Competi-
tors.—In a prosecution for violating this section relating to
monopolies, an instruction that a person violates this section
if he lowers the price of the product in question for the
purpose of injuring or destroying competitors, and then, after
competition is removed, he sells at a higher price to the
detriment of the public, was held without error. State v.
Atlantic Ice, etc., Co., 210 N. C. 742, 188 S. E- 412.
"Willful" Defined.— That willful means the wrongful do-
ing of an act without justification or excuse, was held a
correct definition. State v. Atlantic Ice, etc., Co., 210 N.
C. 742,, 188 S. E. 412.
Combination of Railroads to Eliminate Motor Truck Com-
petition.— A combination of railroads for the purpose of re-
ducing rates on gasoline transportation within a certain area
with the intent to eliminate motor truck competition and
with the further purpose of raising and fixing a higher rate
on the same commodity after the elimination of competi-
tion is a violation of this section. Bennett v. Southern Ry.
Co., 211 N. C. 474, 191 S. E- 240.
Cited in Brown v. Norfolk So. R. Co., 208 N. C. 423, 181
S. E. 279.
§ 2564. Violation a misdemeanor; punishment.
Reference.— See § 2563 in this Supplement.
Applied in State v. Atlantic Ice, etc., Co., 210 N. C. 742,
188 S. E. 412.
Cited in Bennett v. Southern Ry. Co., 211 N. C. 474, 191
S. E. 240.
§ 2566. Continuous violations separate offenses.
Quoted in State v. Atlantic Ice, etc., Co., 210 N. C. 742,
188 S. E- 412.
§ 2574. Civil action by person injured; treble
damages.
Causal Relation Between Violation and Injury Must Be
Shown. —
In accord with original. See Bennett v. Southern Ry.
Co., 211 N. C. 474, 191 S. E. 240.
Who May Bring Action. — The contention that an action
for the violation of this chapter resulting in injury to a
party's business can only be brought by the attorney gen-
eral is contrary to the provisions of this section. Bennett
v. Southern Ry. Co.. 211 N. C. 474, 191 S. E- 240.
CHAPTER 54
MORTGAGES AND DEEDS OF TRUST
Art. 2. Right to Foreclose or Sell under Power
§ 2578. Representative succeeds on death of
mortgagee or trustee in deeds of trust; parties to
action.
Cited in Nail v. McConnell, 211 N. C. 258, 190 S. E- 210.
§ 2583. Clerk appoints successor to incompetent
trustee.
Ins. Co. v. Lassiter, 209 N. C.
McConnell, 211 N. C. 258, 190
Basnight, 209 N.
Cited in New York Eife
156, 183 S. E- 616; Nail v
S. E- 210.
§ 2583(a). Substitution of trustees in mortgages
and deeds of trust.
A sale of the property by the substituted trustee in ac-
cordance with the terms of the instrument is valid, the ap-
pointment of a substitute trustee not being a conveyance
of any interest in land. North Carolina Mtg. Corp. v.
Morgan, 208 N. C. 743, 182 S. E. 450.
Substitute Trustee May Execute Deed to Purchaser. — A
trustee, duly substituted for the original trustee under the
provisions of the deed of trust and the statute, may exe-
cute deed to the purchaser at a sale duly conducted by the
original trustee. Pendergrast v. Home Mtg. Co., 211 N.
C. 126, 189 S. E- 118.
Cited in New York Eife Ins. Co. v. Eassiter, 209 N. C.
156, 183 S. E- 616.
Art. 3. Mortgage Sales
§ 2588. Real property; notice of sale must de-
scribe premises.
Same — Sufficient Description. —
In accord with original. See Blount
C. 268, 183 S. E. 405.
§ 2591. Reopening judicial sales, etc., on ad-
vanced bid.
Title of the Bidder. — In accord with original. See Rich-
mond County v. Simmons, 209 N. C. 250, 183 S. E- 282.
Where a resale is ordered the bidder at the first sale is
released from any and all obligation by reason of his bid.
Richmond County v. Simmons, 209 N. C. 250, 251, 183 Si
E. 282.
Cited in Dennis v. Dixon, 209 N. C. 199, 183 S. E- 360.
§ 2593(b). Injunction of mortgage sales on equi-
table grounds.
Requiring Bond within Court's Discretion. —
In accord with original. See Eittle v. Wachovia Bank,
etc., Co., 208 N. C. 726, 182 S. E- 491.
Where It Is Error for Court to Grant Motion to Nonsuit.
— Where plaintiffs, trustors in a deed of trust, seek to en-
join the consummation of a foreclosure sale had under the
power contained in the instrument, and alleged that the
price bid at the sale was grossly inadequate, which alle-
gation is denied in the answer, it is error for the court
to grant defendants' motion to nonsuit, plaintiffs being
entitled to a hearing and a determination of the issue under
the provisions of this section. Smith v. Bryant, 209 N. C.
213, 183 S. E- 276.
Injunction Held to Be Properly Continued to Hearing
upon Court's Finding. — Where a mortgagor or trustor in-
stitutes suit to enjoin the consummation of a foreclosure
sale had under the terms of the instrument, and files bond
to indemnify the mortgagee or cestui que trust against
loss, the temporary injunction granted in the cause is
properly continued to the hearing upon the court's finding
that serious controversy exists between the parties and
that plaintiff is entitled to a jury trial upon the issues
of fact raised by the pleadings. Eittle v. Wachovia Bank,
etc., Co., 208 N. C. 726, 182 S. E- 491. See § 861 and note.
Where Court Determines Whether Bid Was Grossly In-
56
§ 2593(c)
MOTOR VEHICLES
§ 2613(j)
adequate.— Where, in a suit to enjoin the consummation
of a foreclosure sale the issue of whether the bid at the
sale was grossly inadequate is raised by the pleadings, the
parties are not entitled as a matter of law to have the
issue determined by a jury, but the court may hear evi-
dence and determine the issue, and should dismiss the ac-
tion if it finds that the amount of the bid is the fair value
of the land, or should enjoin the consummation of the
sale if it finds that the bid is grossly inadequate. Smith
v. Bryant, 209 N. C. 213, 183 S. E- 276.
Stated in Richmond Mtg., etc., Corp. v. Wachovia Bank,
etc., Co., 300 U. S. 124, 57 S. Ct. 338.
Cited in Richmond Mtg., etc., Corp. v. Wachovia Bank,
etc., Co., 210 N. C. 29, 185 S. E. 482.
§ 2593(c). Ordering resales before confirmation;
receivers for property; tax payments.
Stated in Richmond Mtg., etc., Corp. v. Wachovia Bank,
etc., Co., 300 U. S. 124, 57 S. Ct. 338.
Cited in Richmond Mtg., etc., Corp. v. Wachovia Bank,
etc., Co., 210 N. C. 29, 185 S. E. 482.
§ 2593(d). Right of mortgagee to prove in de-
ficiency suits reasonable value of property by way
of defense.
This section is constitutional and valid. Richmond Mtg.,
etc., Corp. v. Wachovia Bank, etc., Co., 210 N. C. 29, 185
S. E. 482.
This section has merely restricted the exercise of the
contractual remedy to provide a procedure which, to some
extent, renders the remedy by a trustee's sale consistent with
that in equity. This does not impair the obligation of the
contract. Richmond Mtg., etc., Corp. v. Wachovia Bank,
etc., Co., 300 U. S. 124, 131, 57 S. E. 338.
It applies only to foreclosure under powers of sale and
not to actions to foreclose, and only instances where the
creditor bids in the property, directly or indirectly, and not
to instances where the property is bid in by independent
third persons. Richmond Mtg., etc., Corp. v. Wachovia
Bank, etc., Co., 210 N. C. 29, 185 S. E- 482. See also, Rich-
mond Mtg., etc., Corp. v. Wachovia Bank, etc., Co., 300
U. S. 124, 130, 57 S. Ct. 338.
And alters and modifies one of the existing remedies for
realization of the value of the security, but cannot fairly be
said to do more than restrict the mortgagee to that for
which he contracted, namely, payment in full. It recognizes
the obligation of his contract and his right to its full en-
forcement but limits that right so as to prevent his obtain-
ing more than his due. Richmond Mtg., etc., Corp. v.
Wachovia Bank, etc., Co., 300 U. S- 124, 130, 57 S. Ct. 338.
It is not "emergency legislation," nor is its purpose to
provide a "moratorium" for debtors during a temporary pe-
riod of depression. Richmond Mtg., etc., Corp. v. Wach-
ovia Bank, etc., Co., 210 N. C. 29, 34, 185 S. E- 482.
Amount Bid Is Not Conclusive as to Value. — The amount
bid by the creditor at the sale, and applied by him as a
payment on the debt, is not conclusive as to the value of
the property. Richmond Mtg., etc., Corp. v. Wachovia
Bank, etc., Co., 210 X. C. 29, 34. 185 S. E. 482.
This section recognizes the obligation of a debtor who has
secured the payment of his debt by a mortgage or deed of
trust to pay his debt in accordance with his contract, and
does not impair such obligation. Richmond Mtg., etc., Corp.
v. Wachovia Bank, etc., Co., 210 N. C. 29, 34, 185 S. E.
482.
And it recognizes the validity of powers of sale contained
in mortgages or deeds of trust, but regulates the exercise
of such powers by the application of well settled principles
of equity. It provides for judicial supervision of sales made
and conducted by creditors whose debt* are secured by
mortgages or deeds of trust, and thereby provides protection
for debtors whose property has been sold and purchased
by their creditors for a sum which was not a fair value of
the property at the time of the sale. Richmond Mtg., etc.,
Corp. v. Wachovia Bank, etc.. Co., 210 N. C. 29. 35. 185
S. E. 482.
§ 2593(e). Conflicting laws repealed; not appli-
cable to tax suits.
Cited in Richmond Mtg., etc., Corp. v. Wachovia Bank,
etc., Co., 300 U. S. 124, 57 S. Ct. 338.
§ 2593(f). Deficiency judgments abolished where
mortgage represents part of purchase price.
Cited in footnote to Louisville Joint Stock Land Bank v.
Radford, 295 U. S. 555, 79 L. Ed. 1593, 55 S. Ct. 854, 97
A. L. R. 1106; Richmond Mtg.. etc., Corp. v. Wachovia
Bank, etc., Co., 300 U. S. 124. 57 S. Ct. 338.
664
CHAPTER 55
MOTOR VEHICLES
Art. 1. General Provisions
§ 2598. Terms defined.
Applied in Kelly v. Hunsucker, 211 X. C. 153, 189 S. E.
Art. 3. License Fees
§ 2612. Amount of license fees.
Cited in Taft v. Maryland Cas. Co.. 211 X. C. 507, 191
S. E. 10.
Art. 3A. Gasoline Tax
§ 2613 (il5). Fuels purchased for farm tractors,
motor boats and manufacturing processes entitled
to rebates. — Any person, association, firm, or cor-
poration, who shall buy in quantities of ten gal-
lons or more at any one time any motor fuels as
defined in this article for the purpose of use, and
the same is actually used, for a purpose other
than the operation of a motor vehicle designed
for use upon the highways, on which motor fuels
the tax imposed by this article shall have been
paid, shall be reimbursed at the rate of five cents
per gallon of the amount of such tax or taxes
paid under this article [Provided, however, that
motor vehicles designed but not used upon the
highways of this state shall be entitled to the re-
fund of gasoline tax as herein provided], upon the
following conditions and in the following man-
ner:
(1937, c. 111.)
Editor's Note. — The 1937 amendment inserted the words in
brackets in the first sentence. The rest of the section, not
being affected by the amendment, is not set out.
Art. 3B. Motor Busses
§ 2613 (j). Definitions.—
(k) The term "motor vehicle carrier" means
every corporation or person, as the term "cor-
poration" and the term "person" are hereinbefore
defined, or their lessees, trustees or receivers-
owning, controlling, operating or managing any
motor vehicle used in the business of transport-
ing persons or property for compensation be-
tween cities, or between towns, or between cities
and towns, or over a regular route, over the pub-
lic highways of the state, as public highways are
defined herein.
(r) The term "broker" means any person not
included in the term "motor vehicle carrier" and
not a bona fide employee or agent of any such
carriers, who or which as principal or agent sells
or ofiers for sale any transportation, or negotiates
for or holds himself, or itself, out by solicitation,
advertisement, or otherwise, as one who sells,
provides, furnishes, contracts, or arranges for such
transportation for compensation, either directlv
or indirectly.
(s) The term "forwarder" means any person
not included in the terms "motor vehicle carrier"
or "broker" as herein defined, who or which is-
sues receipts of billings for property received by
it for transportation, forwarding, or consolidating
or for distribution by any medium of transporta-
tion or combination of mediums of transportation,
and who is not a carrier by rail, w^ater, air or ex-
press, and other than the operations of a bona fide
warehouseman.
(t) The term "restricted common carrier by
motor vehicle" means any person not included in
57]
§ 2613(k)
MOTOR VEHICLES
§ 2613(0)
the definition "common carrier by motor vehicle"
who or which undertakes, whether directly or by
lease or other arrangement, to transport passen-
gers or property restricted to any class or classes
of passengers or to any class, kind or commodity
or property by motor vehicle for compensation,
whether over regular or irregular routes, and/or
"excursion passenger vehicles" as defined in chap-
ter one hundred twenty-two, Public Laws one
thousand nine hundred twenty-seven [§ 2621(1) et
seq.], and amendments thereto. (1925, c. 50, s.
1; 1927, c. 136, s. 1; 1929, c. 193, s. 1; 1937, c. 247,
ss. 1, 2.)
Editor's Note. — The 1937 amendment inserted the words
"or over a regular route" in subsection (k), and added
subsections (r), (s) and (t). The rest of the section, not
being' affected by tht amendment, is not set out.
§ 2613 (k). To whom applicable. — No corpora-
tion or person, their lessees, trustees, or receiv-
ers shall operate over the public highways in this
state any motor vehicle or motor vehicle with
trailer, as hereinbefore defined as a motor vehicle
carrier, for the transportation of persons or prop-
erty between cities, or between towns, or between
cities and towns, or over a regular route, for com-
pensation, except in accordance with the provi-
sions of this act, and said operation shall be sub-
ject to control, supervision, and regulation by the
commission in the manner provided by this act:
Provided, that where the corporate limits of two
or more cities join, they shall be treated as one
for purposes of administering this act: provided,
further, that nothing in this act shall prohibit a
motor vehicle carrier under this act, nor any
motor vehicle on which the franchise tax has been
paid as provided in the current revenue act from
making casual trips on call over routes established
hereunder; provided, that on said casual trips no
one shall be allowed to pick up any passenger
or property along the route, nor be permitted
on the return trip to carry any passengers or
property other than those or that included in the
original trip; nor shall it apply to motor vehicles
used exclusively for transporting school students
from and to their homes; nor to motor vehicles
used exclusively for transporting persons to or
from religious services; nor to motor vehicles
used exclusively in carrying the United States
mail; nor to motor vehicles used exclusively in
transporting farm and dairy products from the
farm or dairy to warehouse, creamery or other
original storage or market; nor to motor ve-
hicles used exclusively in the distribution of news-
papers from the publisher to subscribers or dis-
tributors; nor to motor vehicles used exclusively
in the transportation of bona fide employees of an
industrial plant to and from the places of their
regular employment: Provided, that if a franchise
operator shall furnish such transportation facilities
to such mill or factory maintaining a residential
unit of one thousand inhabitants or more, the fore-
going exception shall not be operative: Provided,
further, that this shall not repeal chapter three
hundred and seventy-five, Public Laws, one thou-
sand nine hundred and thirty-one. (1925, c. 50, s.
2; 1927, c. 136, s. 2; 1929, cc. 193, s. 1, 254, s. 1;
1935, c. Ill; 1937, c. 247, s. 2.)
Editor's Note. — The 1937 amendment inserted the words
"or over a regular route" in the eighth line of this section.
§ 2613(1). Application for franchise certificate. —
(j) Franchise certificates may be granted to re-
stricted common carriers as defined herein for any
period in the discretion of the commissioner not
to exceed three years.
(k) A brokerage license shall be issued to any
qualified applicant therefor authorizing the whole
or any part of the operations covered by the ap-
plication if it is found that the applicant is fit,
willing and able properly to perform the service
proposed and to conform to the provisions of
this article and the requirements, rules and regu-
lations of the commissioner thereunder, and that
the proposed service, to the extent to be author-
ized by the license, is or will be consistent with
the public interest and policy declared herein;
otherwise, such application shall be denied.
(1) No person shall engage in the business of
a forwarder, subject to the provisions of this
article, in intrastate operations within this state
unless such person makes application to the com-
missioner and obtains a certificate issued by the
commissioner authorizing such person to engage
in such business as provided herein for other
common carriers by motor vehicle: Provided,
that where any such forwarder hires instead of
owning motor vehicle equipment, such forwarder
shall become subject to the provisions herein pre-
scribed for brokers: Provided further, that it
shall be unlawful for any such forwarder in the
performance of its operation in intrastate com-
merce to employ or use any motor vehicle carrier
which is not the lawful holder of an effective cer-
tificate issued as provided in this article. The
commissioner may in any certificate issued re-
strict or prohibit the direct operation of any
motor vehicles by such forwarder in intrastate
commerce. Subject to the foregoing part of this
subsection (1), a certificate shall be issued to any
qualified applicant to conduct the business of for-
warder in whole or in part, if it is found that the
applicant is fit, willing and able properly to per-
form the service proposed and to conform to the
provisions of this article and the requirements,
rules and regulations of the commissioner there-
under, and that the proposed service, to the ex-
tent to be authorized by the certificate, is or will
be consistent with the public interest and policy
declared by this article; otherwise, such applica-
tion shall be denied. (1925, c. 50, s. 3; c. 137;
1927, c. 136, s. 3; 1931, c. 182; 1933, c. 440, s. 1;
1937, c. 247, s. 3.)
Editor's Note.— The 1937 amendment added subsections (j),
(k) and (1). The rest of the section, not being affected by
the amendment, is not set out.
§ 2613 (o). Insurance. —
Provided, that the commissioner may permit
the filing by any licensed assurer a uniform mas-
ter insurance policy contract, the terms of which
shall conform to the foregoing, and when ap-
proved and accepted by the commissioner, shall
be applicable to all insurance policy contracts
filed by such assurer for motor vehicle carriers
under this act, and thereafter, so long as the
master policy contract shall remain in force, car-
riers under this act may be permitted to file cer-
tificates, in such form as the commissioner may
prescribe, evidencing fleet coverage under the
terms of such master policy instead of filing a
separate individual policy contract in each case:
Provided, that brokers and forwarders not oper-
[58]
§ 2613 (q)
MOTOR VEHICLES
§ 2613 (aa)
ating motor vehicles under a certificate shall be
required to file bond to cover financial responsi-
bility not in excess of amounts required by the
interstate commerce commission. (1927, c. 136,
s. 6; 1937, c. 403.)
Editor's Note.— The 1937 amendment directed that the above
provision be added at the end of this section. The rest of
the section, not being affected by the amendment, is not set
out here. _
§ 2613 (q). General powers of commissioner. —
The commissioner shall at any time, upon com-
plaint, or upon his own motion, that any oper-
ator transporting persons or property by a motor
vehicle, licensed under the provisions of this or
any other act by the state of North Carolina, be
engaged in violating the provisions of this article
•or any rules or regulations prescribed by the com-
missioner, or violating any of the laws of the
state with respect to the rights, duties, and privi-
leges of motor vehicle carriers for the transpor-
tation of either persons or property on franchise
certificate issued under the provisions of this arti-
cle, cause an order to be issued directing the
owner of the motor vehicle alleged to be engaged
in any of the acts specified to appear before the
commissioner at a fixed time and place, at which
time the commissioner shall investigate the com-
plaint made; and if the commissioner shall be
satisfied after such hearing that the said motor
vehicle carrier has been engaged in practice or
practices violating the terms of his franchise or
the rules and regulations for the enforcement
thereof, or, if not a franchise carrier, has been
invading the prerogatives, privileges, or rights of
a duly licensed franchise carrier by operating on
the route of a common carrier by soliciting or
transporting passengers or property at lower than
approved rates for the common carrier, or with-
out a bona fide contract, the commissioner shall
issue an order requiring the suspension of such
practice or practices conditioned upon the revoca-
tion of the motor vehicle license of the offending
party if he shall fail within the time specified by
the commissioner to desist from such offending
practice or practices; and upon the failure of any
offending motor vehicle carrier to obey such or-
der of the commissioner, the commissioner shall
certify this fact to the commissioner of revenue,
whereupon the commissioner of revenue shall
cause the license or licenses of the offending
motor vehicle carrier to be canceled, and such
offending carrier who shall thereafter engage in
the hauling of any persons or property for com-
pensation shall be guilty of a misdemeanor, and
each day's operation shall constitute a separate
offense: Provided, the holder of any certificate,
franchise or license whose certificate, franchise
or license is ordered canceled hereunder shall have
the right of appeal to the superior court as is now
provided by law for appeals from the commis-
sioner, but no such holder shall operate pending
such appeal unless permitted to do so by order
of the commissioner. (1927, c. 136, s. 8; 1937, c.
247, s. 4.)
Editor's Note. — The 1937 amendment struck out the former
section and inserted the above in lieu thereof. The present
section refers to "commissioner" instead of "commission."
Obviously this section is leveled at those carriers operating
or purporting to operate under contract with particular ship-
pers rather than operating under a franchise and serving the
public generally. Such contract carriers must now have
bona fide contracts. This probably means that they may
not take occasional business, but must have contracts with
shippers running over a period of time and calling for con-
tinued service. The provisions designed to prevent con-
tract carriers from obtaining business by cutting rates below
those of common carriers are a step in the direction already
taken by other states which have set up systems of control
of private contract motor carriers. 15 N. C. L,aw Rev., No.
4, pp. 360, 361.
§ 2613(v). Fares, charges, and free transporta-
tion.— No motor vehicle carrier shall charge, de-
mand, collect, or receive a greater or less or dif-
ferent compensation for the transportation of
persons or property, or for any service in connec-
tion therewith, than the rates, fares, and charges
applicable to such carrier as specified in its tar-
iffs filed with and approved by the commission
and in effect at the time; nor shall any such car-
rier refund or remit in any manner or by any de-
vice any portion of the rates, fares, or charges
so specified, or extend to any person, firm, co-
partnership, or corporation, or other organiza-
tion, or association, privileges or facilities in the
transportation of persons or property except such
as are regularly and uniformly extended to all;
and no such carrier shall, directly or indirectly,
issue, give, tender, or honor any free fares except
to its bona fide officers, agents, employees, and
members of their immediate families, and such per-
sons as the commission may designate in its em-
ploy, the employ of the state highway and public
works commission and/or the motor vehicle bureau,
for the inspection of equipment and supervision of
traffic upon the highways of the state: Provided,
that motor vehicle carriers under the act may ex-
change free transportation within the limits of this
section. Provided, that any motor vehicle carrier
may carry free any blind preacher within the state
of North Carolina upon its busses or motor vehicles
operating in the state of North Carolina, under the
condition that said preacher shall carry or present
to such motor vehicle carrier a certificate showing
what church or sect he may represent and that
he is in good and regular standing with that de-
nomination or sect. (1927, c. 136, s. 13; 1929, c.
58, s. 1; 1937, c. 247, s. 5.)
Editor's Note. — The 1937 amendment added the clause re-
lating to employees of the state highway and public works
commission and the motor vehicle bureau.
§ 2613 (aa). Maintenance of actions; fees; funds
for enforcement; conferences, etc.— The commis-
sion shall have the right and authority to enforce
by injunction or other ancillary remedy the pro-
visions of this article or the rules and regulations
made under this article.
(a) Fees. — Each applicant for a certificate shall
deposit with the commissioner as a filing fee the
sum of ten dollars ($10.00) at the time of applica-
tion, and fee of one dollar ($1.00) for each motor
vehicle added thereafter; and for annual re-regis-
tration for the purchase of license, number plates,
or tags, a fee of twenty-five cents (25c) for each
motor vehicle so re-registered; and for renewal
of certificate, a fee of twenty-five cents (25c) for
each motor vehicle being operated under the cer-
tificate at the time application for renewal is filed:
Provided, that brokers and forwarders not apply-
ing for nor holding certificates for the operation
of motor vehicles shall deposit a filing fee of
twenty-five dollars ($25.00) each at the time of
application and twenty-five dollars ($25.00) per
annum thereafter in addition to any other tax or
[59]
§ 2613 (fob)
MOTOR VEHICLES
§ 2621 (46a)
fee provided by law. Such fees, when received by
the commissioner, shall be paid forthwith to the
state treasurer and credited to the highway fund
for enforcement purposes. This section shall be
in force from and after the ratification of this law.
(b) Funds for Enforcement. — The highway and
public works commission is hereby empowered,
with the approval of the director of the budget,
from time to time to appropriate sufficient funds
for the use of the commissioner for the reasonable
enforcement of this article, to be by him disbursed
under the supervision of the director of the
budget.
(c) Conferences and Joint Hearings. — The com-
missioner or his authorized representative is au-
thorized to confer with and hold joint hearings with
the authorities of any other state or representa-
tives of the interstate commerce commission in
connection with any matter arising under the Fed-
eral Motor Carrier Act, one thousand nine hundred
thirty-five, or in establishing jurisdiction under
this article or the Federal Act. (1927, c. 136, s.
18; 1937, c. 247, s. 6.)
Editor's Note. — The 1937 amendment added subsections (a),
(b) and (c) to this section.
§ 2613 (bb). Inconsistent acts.
Applied in Kelly v. Hunsucker, 211 N. C. 153, 189 S. E-
664.
Art. 4. Operation of Vehicles
§ 2616. Driving regulations; frightened ani-
mals; crossings.
See §§ 2641(46), 2641 (49a) and the notes thereto.
§ 2618. Speed regulations; mufflers.
Evidence Sufficient to Establish Negligence Per Se. — Evi-
dence that defendant drove his car into an intersection of
highways at a speed in excess of 15 miles per hour when his
vision of the intersecting highway was obstructed by grow-
ing corn, and that his speed was a proximate cause of the
accident in suit, is sufficient to overrule his motion as of
nonsuit, speed in excess of 15 miles per hour, under the cir-
cumstances, being in violation of this section and constitut-
ing negligence per se. Turner v. L,ipe, 210 N. C. 627, 188
S. E. 108.
But Insufficient to Support Wanton Negligence.— Turner
v. Lipe, 210 N. C. 627, 188 S. E- 108.
§ 2618(b). Duty of driver passing school bus.
This section applies to passing a school bus from either
direction, from the rear or from the front. State v. Webb,
210 N. C. 350, 186 S. E. 241.
§ 2618(d). Standard qualifications for school bus
drivers; speed limit. — No person shall drive or op-
erate a school bus over the public roads of North
Carolina while the same is occupied by children
unless said person shall be fully trained in the op-
eration of motor vehicles, and shall furnish to the
superintendent of the schools of the county in
which said bus shall be operated a certificate from
the highway patrol of North Carolina showing that
he has been examined by a member of the said
highway patrol, and that he is a fit and competent
person to operate or drive a school bus over the
public roads of the state.
It shall be unlawful for any person to operate or
drive a school bus loaded with children over the
public roads of North Carolina at a greater rate of
speed than thirty-five miles per hour.
Any person violating paragraph two of this sec-
tion shall, upon conviction, be fined not more than
fifty dollars ($50.00) or imprisoned not more than
thirty days. (1937, c. 397, ss. 1-3.)
[ 60
Art. 7. The Motor Vehicle Act; Department of
Motor Vehicles; Registration
§ 2621(1). Definitions.
For act amending and consolidating this article and article
eight, see § 2621(186) et seq.
Applied in State v. Brooks, 210 N. C. 273, 186 S. E- 237.
Art. 8. Uniform Act Regulating Operation of Ve-
hicles on Highways
§ 2621(43). Definitions.
For act amending and consolidating this article and article
seven, see § 2621(186) et seq.
§ 2621(44). Persons under the influence of in-
toxicating liquor or narcotic drugs.
Cited in State v. Creech, 210 N. C. 700, 188 S. E. 316, dis-
senting opinion.
§ 2621(45). Reckless driving.
When Person Guilty of Reckless Driving. — Under this sec-
tion, a person is guilty of reckless driving (1) if he drives
an automobile on a public highway in this state, carelessly
and heedlessly, in a willful or wanton disregard of the rights
or safety of others, or (2) if he drives an automobile on a
public highway in this state without due caution and cir-
cumspection and at a speed or in a manner so as to en-
danger or be likely to endanger any person or property.
State v. Folger, 211 N. C. 695, 697, 191 S. E- 747.
An indictment under this section may be consolidated for
trial with an indictment under § 2618(b), which prohibits
the passing of a standing school bus on the highway. State
v. Webb, 210 N. C. 350, 186 S. E- 241. See § 4622.
Sufficient Evidence to Sustain Negligence and Proximate
Cause as a Matter of Law.— Smith v. Miller, 209 N. C.
170, 183 S. E- 370.
Instruction on Reckless Driving Held Reversible Error.
-See State v. Folger, 211 N. C. 695, 697, 191 S. E. 747.
Cited in Hancock v. Wilson, 211 N. C. 129, 189 S. E- 631.
§ 2621(46). Speed restrictions.
Under §§ 2616, 2618. — In accord with original. See Hin-
shaw v. Pepper, 210 N. C. 573, 187 S. E- 786.
Section Did Not Repeal § 2616 Providing Speed Limit in
Traversing Bridge.— Section 2616 providing a speed limit of
10 miles per hour in traversing a bridge, is not repealed
by this section, since this section does not purport to cover
the whole field of speed regulation upon the state high-
ways, and the provisions of the former section are not re-
pugnant to those of the latter. Kelly v. Hunsucker, 211
N. C. 153, 189 S. E- 664, construing this section prior to
1935 amendment.
Sufficient Evidence to Overrule Defendant's Motion to
Nonsuit in Prosecution for Manslaughter. — Evidence that
the defendant was driving his car at a speed of from 50 to
55 miles per hour, on or near the center of the highway,
when he collided with another car, resulting in the death
of the driver thereof, was held sufficient to overrule de-
fendant's motion to nonsuit in a prosecution for manslaugh-
ter, although defendant introduced evidence in sharp con-
flict. State v. Webber, 210 N. C. 137, 185 S. E. 659.
Driving Automobile in Excess of Forty- Five Miles Per
Hour Is Only Prima Facie Negligence. — The driving of an
automobile upon a highway at a speed in excess of forty-
five miles per hour is not negligence per se or as a matter
of law, but only prima facie evidence that the speed is un-
lawful under the provisions of this section. State v. Web-
ber, 210 N. C. 137, 185 S. E- 659, citing State v. Spencer,
209 N. C. 827, 184 S. E. 835.
Prior to the enactment of this section the operation of a
motor driven vehicle upon the highways of the State at a
greater rate of speed than forty -five miles per hour was
unlawful, and therefore negligence per se, since said en-
actment such operation is only prima facie evidence of neg-
ligence. Exum v. Baumrind, 210 N. C. 650, 651, 188 S. E.
200.
Applied in Hancock v. Wilson, 211 N. C. 129, 189 S. E-
631.
Cited in Pittman v. Downing, 209 N. C. 219, 183 S. E-
362; Taft v. Maryland Cas. Co., 211 N. C. 507, 191 S. E- 10.
§ 2621 (46a). Restrictions on speed of trucks.
Where the evidence in a prosecution for manslaughter
is not conclusive as to whether the truck operated by the
defendant had attached thereto a trailer or semitrailer as
defined by § 2621(1), and all the evidence shows that the
defendant was driving the truck between thirty and thirty-
§ 2621 (49a)
MOTOR VEHICLES
§ 2621(187)
five miles per hour, it was held error for the court to in-
struct the jury that defendant's speed was limited to thirty
miles per hour. State v. Brooks, 210 N. C. 273, 186 S. %
237.
The burden is upon the State to prove that a truck had
a trailer attached thereto as defined by § 2621(1) in order
to reduce the maximum lawful speed at which a vehicle
might be lawfully operated from thirty- five miles per hour
as prescribed for trucks without trailers, to thirty miles
per hour. Id.
Cited in Taft v. Maryland Cas. Co., 211 N. C. 507, 191
S. E. 10.
§ 2621 (49a). Signs showing safe speed and car-
rying capacity of bridges.
The provisions of § 2616 are not repealed by this section,
since this section is not inconsistent with the ten-mile
limit for traversing bridges set up by the former section.
Kelly v. Hunsucker, 211 N. C. 153, 189 S. E- 664.
§ 2621(51). Drive on right side of highway.
Proximate Cause. —
In accord with original. See Stovall v. Ragland, 211 N.
C. 536, 190 S. E- 899.
Burden on Plaintiff to Establish Negligence. — Where
plaintiff's evidence leaves in speculation and conjecture the
determinative fact of whether defendant's car was being
driven on the wrong side of the highway at the time of the
collision, defendant's motion to nonsuit is properly granted,
the burden being on plaintiff to establish the negligence of
defendant. Cheek v. Barnwell Warehouse, etc., Co., 209
N. C. 569, 183 S. E. 729.
Applied in Hancock v. Wilson, 211 N. C. 129, 189 S. E-
631.
§ 2621(53). Meeting of vehicles.
Assumption That Vehicle Will Turn to Right. —
In accord with original. See Hancock v. Wilson, 211 N.
C. 129, 189 S. E. 631.
§ 2621(54). Overtaking a vehicle.
The violation of this section is negligence and if such
negligence was the proximate cause of plaintiff's injuries,
the defendant, nothing else appearing, is liable to the plain-
tiff in this action. Stovall v. Ragland, 211 N. C. 536, 539,
190 S. E- 899.
Evidence Sufficient to Raise Issue of Last Clear Chance.
—Where the evidence tended to show that plaintiff, in
order to avoid striking a chicken standing on the hard
surface of the highway, drove his automobile gradually to
the left, so that the car was traveling in about the cen
ter of the highway at the time of the accident in suit, and
that a bus belonging to defendant was traveling in the
same direction and hit plaintiff's car when the bus at-
tempted to pass, it was held that conceding plaintiff was
negligent in driving to the left without giving any sig-
nal or ascertaining if the car could be driven to the left in
safety (§ 2621(59)), defendant's motion to nonsuit was er-
roneously granted, since the pleadings and evidence are
sufficient to raise the issue of the last clear chance upon
the evidence tending to establish defendant's negligence
in failing to keep a safe distance between the vehicles (§
2621(57)), and in failing to take the precautions and give
the signals required by this section for passing cars on
the highway. Morris v. Seashore Transp. Co., 208 N. C.
807, 182 S. E. 487.
§ 2621(55). Limitations on privilege of overtak-
ing and passing.
Reference.— See note to § 2621(54) of this Supplement.
Sufficient Evidence to Submit Question of Negligence to
Jury.— Evidence that the driver of a truck, in attempting to
pass cars going in the same direction, pulled out in the
center of the road and hit the car which plaintiff was driv-
ing in the opposite direction, causing damage to the car and
injury to plaintiff, was held sufficient to be submitted to the
jury on the question of the actionable negligence of the
driver of the truck. Joyner v. Dail, 210 N. C. 663, 188
S. E. 209.
§ 2621(57). Following too closely.
Reference.— See note to § 2621(54) of this Supplement.
§ 2621(59). Signals on starting, stopping or
turning.
Reference— See note to § 2621(54) of this Supplement.
Person Observing No Vehicles in Either Direction Is un-
der No Obligation to Give Signal.— The plaintiff having first
looked in both directions, and having observed no automo-
[61
bile or other vehicle approaching from either direction, was
under no obligation, by virtue of this section to give any
signal of his purpose to turn to his left and enter the drive-
way to his home. He was therefore not negligent as a
matter of law in failing to give a signal before he turned
to his left and crossed the highway for the purpose of en-
tering the driveway to his home. Stovall v. Ragland, 211
N. C. 536, 539, 190 S. E- 899.
§ 2621(66). Stopping on highway.
To "park" means something more than a mere temporary
or momentary stoppage on the road for a necessary pur-
pose. Stallings v. Buchan Transport Co., 210 N. C. 201,
203, 185 S. E. 643.
Thus where the driver of a truck with a trailer stopped
on the highway at night on the right-hand side, with lights
burning, because two automobiles in front of him were in-
terlocked in a wreck, and at the time of the collision the
truck and trailer had been standing still only a fraction of
a minute, and it remained parked for about five minutes
thereafter, it was held that at the time of the collision the
truck was not parked on the highway within the meaning
of this section, and the length of time it remained still after
the collision is immaterial to plaintiff's right to recover;
since it was not the intention of those who drafted the
statute to make it a violation of law for a driver of a heavy
truck and trailer to stop on his right-hand side of the high-
way before driving around or by two cars interlocked in
a collision on the highway, and around which a number
of people were working. Id.
Section Not Violated Where Disabled Truck Is Parked
on Shoulder of Highway.— See State v. McDonald, 211 N.
C. 672, 676, 191 S. E. 733.
Evidence Disclosing Contributory Negligence of Plaintiff.
— Conceding defendant was negligent in parking the car on
the hard surface in violation of this section, the evidence
discloses contributory negligence of plaintiff as a matter of
law in attempting to pass the parked car without first as-
certaining that he could pass the car in safety. McNair
v. Kilmer & Co., 210 N. C. 65, 185 S. E- 481.
§ 2621(71). Duty to stop in event of accident. —
(ib) The driver of any vehicle involved in an
accident resulting in damage to property shall im-
mediately stop such vehicle at the scene of such
accident and any person violating this provision
shall upon conviction be punished by a fine or im-
prisonment, in the discretion of the court.
(1937, c. 34.)
Editor's Note. — Prior to the 1937 amendment the punish-
ment provided for in subsection (b) was "as provided in §
2621(100)." The rest of the section, not being affected by
the amendment, is not set out.
Art. 15. Motor Vehicle Law of 1937
Part 1. General Provisions
§ 2621(186). Certain laws amended to conform
with provisions of article. — Chapter one hundred
and twenty-two of the Public Laws of one thou-
sand nine hundred and twenty-seven [§ 2621(1) et
seq.] and chapter one hundred and forty-eight of
the Public Laws of one thousand nine hundred
and twenty-seven [§ 2621(43) et seq.], and all acts
amendatory thereof, and all acts passed prior there-
to dealing with the matter of registration and li-
censing of motor vehicles, be, and the same are
hereby, amended and consolidated in conformity
with the provisions hereinafter set out in this arti-
cle. (1937, c. 407, s. 1.)
§ 2621(187). Definition of words and phrases. —
The following words and phrases when used in
this article shall, for the purpose of this article,
have the meanings respectively prescribed to them
in this section, except in those instances where the
context clearly indicates a different meaning:
(a) Business District. — The territory contiguous
to a highway when fifty per cent or more of the
frontage thereon for a distance of three hundred
§ 2621(187)
MOTOR VEHICLES
§ 2621(187)
feet or more is mainly occupied by dwellings or by
dwellings and buildings in use for business.
(b) Commissioner. — Commissioner, when herein
referred to, shall refer to the commissioner of rev-
enue.
(c) Department. — Department herein used shall
mean the motor vehicle bureau of the department
of revenue, acting directly or through its duly au-
thorized officers and agents.
(d) Dealer. — Every person engaged in the busi-
ness of buying, selling, distributing, or exchanging
motor vehicles, trailers or semi-trailers in this
state, having an established place of business in
this state and being subject to the tax levied by
section 7880(84).
(e) Essential Parts. — All integral and body
parts of a vehicle of any type required to be regis-
tered hereunder, the removal, alteration or substi-
tution of which would tend to conceal the identity
of the vehicle or substantially alter its appearance,
model, type, or mode of operation.
(f) Established Place of Business. — The place
actually occupied either continuously or at regular
periods by a dealer or manufacturer, where his
books and records are kept and a large share of
his business is transacted.
(g) Explosives. — Any chemical compound or
mechanical mixture that is commonly used or in-
tended for the purpose of producing an explosion
and which contains any oxidizing and combustive
units or other ingredients in such proportions,
quantities, or packing that an ignition by fire, by
friction, by concussion, by percussion, or by a
detonator of any part of the compound or mixture
may cause such a sudden generation of highly
heated gases that the resultant gaseous presses are
capable of producing destructible effects on con-
tiguous objects or of destroying life or limb.
(h) Farm Tractor. — Every motor vehicle de-
signed and used primarily as a farm implement
for drawing plows, mowing machines, and other
implements of husbandry.
(i) Foreign Vehicle. — Every vehicle of a type
required to be registered hereunder brought into
this state from another state, territory or country,
other than in the ordinary course of business, by
or through a manufacturer or dealer and not regis-
tered in this state.
(j) House Trailer. — Any trailer or semi-trailer so
designed and equipped as to provide living and/or
sleeping facilities and drawn by a motor vehicle.
(k) Implement of Husbandry. — Every vehicle
which is designed for agricultural purposes and
used exclusively in the conduct of agricultural op-
erations.
(1) Intersection. — The area embraced within the
prolongation of the lateral curb lines or, if none,
then the lateral boundary lines of two or more
highways which join one another at any angle
whether or not one such highway crosses the
other.
(m) Local Authorities. — Every county, munici-
pality, or other territorial district with local board
or body having authority to adopt local police reg-
ulations under the constitution and laws of this
state.
(n) Manufacturer. — Every person engaged in
the business of manufacturing motor vehicles,
trailers or semi-trailers.
(o) Metal Tire. — Every tire the surface of which
in contact with the highway is wholly or partly
of metal or other hard, non-resilient material.
(p) Motor Vehicle. — Every vehicle which is
self-propelled and every vehicle which is propelled
by electric power obtained from trolley wires but
not operated upon rails, and every vehicle designed
to run upon the highways which is pulled by a
self-propelled vehicle.
(q) Passenger Vehicles. — (1) Excursion pas-
senger vehicles.
Passenger vehicles kept in use for the purpose
of transporting persons on sight-seeing or travel
tours.
(2) For hire passenger vehicles.
Passenger motor vehicles engaged in the busi-
ness of transporting passengers for compensation;
but this classification shall not include motor ve-
hicles of seven-passenger capacity or less operated
by the owner where the cost of operation is shared
by neighbor fellow workmen between their homes
and the place of regular daily employment, when
operated for not more than two trips each way
per day.
(3) Franchise bus carriers.
Passenger motor vehicles operated under a fran-
chise certificate issued by the utilities commis-
sion under chapter fifty of the Public Laws of one
thousand nine hundred and twenty-five [§ 2613 (j)
et seq.] and amendments thereto, for operation
on the public highways of this state between fixed
termini or over a regular route for the transporta-
tion of persons or property for compensation.
(4) Motorcycle.
Every motor vehicle having a saddle for the use
of the rider and designed to travel on not more
than three wheels in contact with the ground, but
excluding a tractor.
(5) U-Drive-It passenger vehicles.
Passenger motor vehicles used for the purpose
of rent or lease to be operated by the lessee.
(6) Private passenger vehicles.
All other passenger vehicles not included in the
above definitions.
(r) Property-Hauling Vehicles. — (l) Contract
hauler vehicles.
Motor vehicles used for the transportation of
property for hire, but not licensed as franchise
hauler vehicles under the provisions of chapter
one hundred and thirty-six of the Public Laws of
one thousand nine hundred and twenty-seven
[§ 2613 (j) et seq.] and amendments thereto: Pro-
vided, it shall not be construed to include the trans-
portation of farm crops or products, including wood
products cut and delivered from within a radius
of twenty-five miles of market, but otherwise not
including forest products from farms to the first
or primary markets.
(2) Franchise hauler vehicles.
Every motor vehicle used for the transportation
of property between fixed termini, or over a regu-
lar route, with the right to make occasional trips
off said route as provided in chapter one hundred
and thirty-six of the Public Laws of one thousand
nine hundred and twenty-seven [§ 2613 (j) et seq.]
and amendments thereto: Provided, only such ve-
hicles shall be so classified as the utilities commis-
sion shall determine to be reasonably necessary for
the proper handling of the business on said route,
[62]
§ 2621(188)
MOTOR VEHICLES
§ 2621(192)
and the determination so arrived at duly certified
by the utilities commissioner to the motor vehicle
bureau.
(3) Private hauler vehicles.
All motor vehicles used for the transportation
of property not falling within one of the above de-
fined classifications.
(4) Semi-Trailer.
Every vehicle without motive power designed
for carrying property or persons and for being
drawn by a motor vehicle, and so constructed that
part of its weight and/or its load rests upon or is
carried by the pulling vehicle.
(5) Trailers.
Every vehicle without motive power designed
for carrying property or persons wholly on its own
structure and to be drawn by a motor vehicle.
This shall include so-called pole trailers or a pair
of wheels used primarily to balance a load, rather
than for purposes of transportation.
(s) Non-Resident. — Every person who is not a
resident of this state.
(t) Owner. — A person who holds the legal title
of a vehicle or, in the event a vehicle is subject to
an agreement for conditional sale or lease thereof,
with the right of purchase upon performance of
the conditions stated in the agreement and with
the immediate right of possession vested in the
original vendee or lessee; or, in the event a mort-
gagor of a vehicle is entitled to possession, then
such conditional vendee or lessee or mortgagor
shall be deemed the owner for the purpose of this
article.
(u) Person. — Every natural person, firm, co-
partnership, association, corporation, or govern-
mental agency.
(v) Pneumatic Tire. — Every tire in which com-
pressed air is designed to support the load.
(w) Private Road or Driveway. — Every road or
driveway not open to the use of the public as a
matter of right for the purpose of vehicular traffic.
(x) Reconstructed Vehicle. — Every vehicle of a
type required to be registered hereunder materially
altered from its original construction by the re-
moval, addition, or substitution of essential parts,
new or used.
(y) Road Tractor. — Every motor vehicle de-
signed and used for drawing other vehicles upon
the highway and not so constructed as to carry any
part of the load, either independently or as a part
of the weight of the vehicle so drawn.
(z) Safety Zone. — The area or" space officially
set aside within a highway for the exclusive use
of pedestrians and which is so plainly marked or
indicated by proper signs as to be plainly visible
at all times while set apart as a safety zone.
(aa) Specially Constructed Vehicles. — Every
vehicle of a type required to be registered hereunder
not originally constructed under a distinctive
name, make, model, or type by a generally rec-
ognized manufacturer of vehicles and not materi-
ally altered from its original construction.
(bb) Special Mobile Equipment. — Every vehicle
not designed or used primarily for the transpor-
tation of persons or property, but incidentally op-
erated or moved over the highways, such as farm
tractors, road construction or maintenance ma-
chinery, ditch-digging apparatus, well-boring ap-
paratus, and concrete mixers. The foregoing enu-
[6
meration shall be deemed partial and shall not
operate to exclude other vehicles which are with-
in the general terms of this section.
(cc) Street and Highway. — The entire width
between property lines of every way or place of
whatever nature, when any part thereof is open
to the use of the public as a matter of right for
the purposes of vehicular traffic.
(dd) Solid Tire. — Every tire of rubber or other
resilient material which does not depend upon
compressed air for the support of the load.
(ee) Truck Tractor. — Every motor vehicle
designed and used primarily for drawing other ve-
hicles and not so constructed as to carry any load
independent of the vehicle so drawn.
(ff) Vehicle. — Every device in, upon, or by
which any person or property is or may be trans-
ported or drawn upon a highway, excepting devices
moved by human power or used exclusively upon
fixed rails or tracks. (1937, c. 407, s. 2.)
Part 2. Authority and Duties of Commissioner
and Department
§ 2621(188). The commissioner of revenue shall
perform the duties of vehicle commissioner. — The
commissioner of revenue is hereby designated as
the vehicle commissioner of this state; and he shall
have all powers and perform such duties as are
herein imposed upon the vehicle commissioner.
(1937, c. 407, s. 3.)
§ 2621(189). Administering and enforcing laws;
rules and regulations; agents, etc., seal. — (a) The
commissioner is hereby vested with the power
and is charged with the duty of administering and
enforcing the provisions of this article and of all
laws regulating the operation of vehicles or the use
of the highways, the enforcement or administra-
tion of which is now or hereafter vested in the de-
partment.
(b) The commissioner is hereby authorized to
adopt and enforce such rules and regulations as
may be necessary to carry out the provisions of this
article and any other laws the enforcement and
administration of which are vested in the depart-
ment.
(c) The commissioner is authorized to designate
and appoint such agents, field deputies, and clerks
as may be necessary to carry out the provisions of
this article.
(d) The commissioner shall adopt an official seal
for the use of the department. (1937, c. 407, s. 4.)
§ 2621(190). Offices of department. — The ve-
hicle commissioner shall maintain an office in
Raleigh, North Carolina, and in such places in the
state as he shall deem necessary to properly carry
out the provisions of this article. (1937, c. 407,
s. 5.)
§ 2621(191). Commissioner to provide forms re-
quired.— The commissioner shall provide suitable
forms for applications, certificates of title and reg-
istration cards, registration number plates and all
other forms requisite for the purpose of this arti-
cle, and shall prepay all transportation charges
thereon. (1937, c. 407, s. 6.)
§ 2621(192). Authority to administer oaths and
certify copies of records. — (a) Officers and em-
ployees of the department designated by the com-
missioner are, for the purpose of administering the
§ 2621(193)
MOTOR VEHICLES
§ 2621(199)
motor vehicle laws, authorized to administer oaths
and acknowledge signatures, and shall do so with-
out fee.
(b) The commissioner and such officers of the
department as he may designate are hereby au-
thorized to prepare under the seal of the de-
partment and deliver upon request a certified copy
of any record of the department, charging a fee of
fifty cents (50c) for each document so authenti-
cated, and every such certified copy shall be ad-
missible in any proceeding in any court in like
manner as the original thereof. (1937, c- 407> s- 7-)
§ 2621(193). Records of department. — (a) All
records of the department, other than those de-
clared by law to be confidential for the use of the
department, shall be open to public inspection dur-
ing office hours.
(b) The commissioner may destroy any registra-
tion records of the department which have been
maintained on file for three years which he may
deem obsolete and of no further service in carry-
ing out the powers and duties of the department.
(1937, c. 407, s. 8).
§ 2621(194). Authority to grant or refuse appli-
cations.— The department shall examine and de-
termine the genuineness, regularity and legality of
every application for registration of a vehicle and
for a certificate of title therefor, and of any other
application lawfully made in the department, and
may in all cases make investigation as may be
deemed necessary or require additional information,
and shall reject any such application if not satis-
fied of the genuineness, regularity, or legality
thereof or the truth of any statement contained
therein, or for any other reason, when authorized
by law. (1937, c. 407, s. 9.)
§ 2621(195). Seizure of documents and plates, —
The department is hereby authorized to take
possession of any certificate of title, registration
card, permit, license, or registration plate issued
by it upon expiration, revocation, cancellation, or
suspension thereof, or which is fictitious, or which
has been unlawfully or erroneously issued, or
which has been unlawfully used. (1937, c. 407,
s. 10.)
§ 2621(196). Distribution of synopsis of laws —
The department may publish a synopsis or sum-
mary of the laws of this state regulating the op-
eration of vehicles, and deliver to any person on
request a copy thereof without charge. (1937, c.
407, s. 11.)
§ 2621(197). Department may summon witnesses
and take testimony. — (a) The commissioner and
officers of the department designated by him shall
have authority to summon witnesses to give testi-
mony under oath or to give written deposition up-
on any matter under the jurisdiction of the depart-
ment. Such summons may require the production
of relevant books, papers, or records.
(b) Every such summons shall be served at least
five days before the return date, either by personal
service made by any person over eighteen years
of age or by registered mail, but return acknowl-
edgment is required to prove such latter service.
Failure to obey such a summons so served shall
constitute a misdemeanor. The fees for the at-
[e
tendance and travel of witnesses shall be the same
for witnesses before the superior court.
(c) The superior court shall have jurisdiction,
upon application by the commissioner, to enforce
all lawful orders of the commissioner under this
section. (1937, c. 407, s. 12.)
§ 2621(198). Giving of notice.— Whenever the
department is authorized or required to give any
notice under this article or other law regulating the
operation of vehicles, unless a different method of
giving such notice is otherwise expressly pre-
scribed, such notice shall be given either by per-
sonal delivery thereof to the person to be so noti-
fied or by deposit in the United States mail of
such notice in an envelope with postage prepaid,
addressed to such person at his address as shown
by the records of the department. The giving of
notice by mail is complete upon the expiration
of four days after such deposit of such notice.
Proof of the giving of notice in either such man-
ner may be made by the certificate of any officer
or employee of the department or affidavit of any
person over twenty-one years of age, naming the
person to whom such notice was given and speci-
fying the time, place, and manner of the giving
thereof. (1937, c. 407, s. 13.)
§ 2621(199). Police authority of department. —
The commissioner and such officers and inspectors
of the department as he shall designate and all
members of the highway patrol shall have the
power:
(a) Of peace officers for the purpose of enforc-
ing the provisions of this article and of any other
law regulating the operation of vehicles or the use
of the highways.
(b) To make arrests upon view and without war-
rant for any violation committed in their presence
of any of the provisions of this article or other
laws regulating the operation of vehicles or the use
of the highways.
(c) At all times to direct all traffic in conform-
ance with law, and in the event of a fire or other
emergency or to expedite traffic or to insure safety,
to direct traffic as conditions may require, not-
withstanding the provisions of law.
(d) When on duty, upon reasonable belief that
any vehicle is being operated in violation of any
provision of this article or of any other law regu-
lating the operation of vehicles to require the
driver thereof to stop and exhibit his driver's li-
cense and the registration card issued for the ve-
hicle, and submit to an inspection of such vehicle,
the registration plates and registration card there-
on or to an inspection and test of the equipment
of such vehicle.
(e) To inspect any vehicle of a type required to
be registered hereunder in any public garage or
repair shop or in any place where such vehicles are
held for sale or wrecking, for the purpose of locat-
ing stolen vehicles and investigating the title and
registration thereof.
(f) To serve all warrants relating to the enforce-
ment of the laws regulating the operation of ve-
hicles or the use of the highways.
(g) To investigate traffic accidents and secure
testimony of witnesses or of persons involved.
(h) To investigate reported thefts of motor ve-
hicles, trailers and semi-trailers. (1937, c. 407, s.
14.)
§ 2621(200)
MOTOR VEHICLES
§ 2621(205)
Part 3. Registration and Certificates of Titles of
Motor Vehicles
§ 2621(200). Owner to secure registration and
certificate of title. — Every owner of a vehicle in-
tended to be operated upon any highway of this
state and required by this article to be registered
shall, before the same is so operated, apply to the
department for and obtain the registration there-
of, the registration plates therefor, and a certificate
of title therefor, and attach the registration plates
to the vehicle, except when an owner is permitted
to operate a vehicle under the registration provi-
sions relating to manufacturers, dealers and non-
residents contained in section 2621(229): Pro-
vided, that nothing herein contained shall require
the application for or the issuance of a certificate
of title for a trailer, or semi-trailer, though, before
operating a trailer or semi-trailer upon the high-
ways of the state, the owner thereof must obtain
the registration thereof and pay the registration
fees as now provided by part seven of this article.
(1937, c. 407, s. 15.)
§ 2621(201). Exempt from registration.— (a)
Any such vehicle driven or moved upon a highway
in conformance with the provisions of this article
relating to manufacturers, dealers, or non-resi-
dents.
(b) Any such vehicle which is driven or moved
upon a highway only for the purpose of crossing
such highway from one property to another.
(c) Any implement of husbandry, whether of a
type otherwise subject to registration hereunder
or not, which is only incidentally operated or
moved upon a highway.
(d) Any special mobile equipment as herein de-
fined.
(e) No certificate of title need be obtained for
any vehicle of a type subject to registration owned
by the government of the United States. (1937,
c. 407, s. 16.)
§ 2621(202). Application for registration and
certificates of title. — (a) Every owner of a vehicle
subject to registration hereunder shall make ap-
plication to the department for the registration
thereof and issuance of a certificate of title for
such vehicle upon the appropriate form or forms
furnished by the department, and every such ap-
plication shall bear the signature of the owner
written with pen and ink, and said signature shall
be acknowledged by the owner before a person
authorized to administer oaths, and said applica-
tion shall contain:
1. The name, bona fide residence and mail ad-
dress of the owner or business address of the
owner if a firm, association or corporation;
2. A description of the vehicle, including, in so
far as the hereinafter specified data may exist
with respect to a given vehicle, the make, model,
type of body, the serial number of the vehicle, the
engine and other identifying numbers of the ve-
hicle and whether new or used, and if a new ve-
hicle, the date of sale and actual date of delivery
of vehicle by the manufacturer or dealer to the
person intending to operate such vehicle;
3. A statement of the applicant's title and of all
liens or encumbrances upon said vehicle and the
names and addresses of all persons having any
interest therein and the nature of every such in-
terest;
N. C. Supp.— 5 [ 65
4. Such further information as may reasonably
be required by the department to enable it to de-
termine whether the vehicle is lawfully entitled to
registration and the owner entitled to a certificate
of title.
(b) When such application refers to a new or
foreign vehicle purchased from a dealer, the ap-
plication shall be accompanied by an application
for certificate of title in the name of the dealer
containing the description of vehicle, statement of
dealer's title and all liens or encumbrances upon
said vehicle, the name and address of person to
whom sold, date of sale, actual date vehicle was
delivered to purchaser, and such other information
as may be required by the department. (1937, c.
407, s. 17.)
§ 2621(203). Application for specially con-
structed, reconstructed, or foreign vehicle. — (a)
In the event the vehicle to be registered is a
specially constructed, reconstructed, or foreign ve-
hicle, such fact shall be stated in the application,
and with reference to every foreign vehicle which
has been registered outside of this state, the owner
shall surrender to the department all registration
cards and certificates of title or other evidence of
such foreign registration as may be in his posses-
sion or under his control, except as provided in
sub-division (b) hereof.
(b) Where, in the course of interstate operation
of a vehicle registered in another state, it is de-
sirable to retain registration of said vehicle in such
other state, such applicant need not surrender, but
shall submit for inspection said evidence of such
foreign registration, and the department in its dis-
cretion, and upon a proper showing, shall register
said vehicle in this state but shall not issue a
certificate of title for such vehicle. (1937, c. 407,
s. 18.)
§ 2621(204). Authority for refusing registration
or certificate of title. — The department shall re-
fuse registration or issuance of a certificate of title
or any transfer of registration upon any of the
following grounds:
(a) That the application contains any false or
fraudulent statement or that the applicant has
failed to furnish required information or reason-
able additional information requested by the de-
partment or that the applicant is not entitled to
the issuance of a certificate of title or registration
of the vehicle under this article;
(b) That the vehicle is mechanically unfit or
unsafe to be operated or moved upon the high-
ways;
(c) That the department has reasonable
ground to believe that the vehicle is a stolen or
embezzled vehicle, or that the granting of regis-
tration or the issuance of a certificate of title would
constitute a fraud against the rightful owner or
other person having valid lien upon such vehicle;
(d) That the registration of the vehicle stands
suspended or revoked for any reason as provided
in the motor vehicle laws of this state;
(e) That the required fee has not been paid.
(1937, c. 407, s. 19.)
§ 2621(205). Examination of registration rec-
ords and index of stolen and recovered vehicles.
— The department, upon receiving application for
any transfer of registration or for original regis-
tration of a vehicle, other than a new vehicle sold
by a North Carolina dealer, shall first check the
§ 2621(206)
MOTOR VEHICLES
§ 2621(212)
engine and serial numbers shown in the applica-
tion against the indexes of registered motor ve-
hicles, and against the index of stolen and recov-
ered motor vehicles required to be maintained by
this article. (1937, c. 407, s. 20.)
§ 2621(206). Registration indexes, — The de-
partment shall file each application received, and
when satisfied as to the genuineness and regular-
ity thereof, and that the applicant is entitled to
register such vehicle and to the issuance of a
certificate of title, shall register the vehicle there-
in described and keep a record thereof in suitable
books or on index cards as follows:
(a) Under a distinctive registration number as-
signed to the vehicle;
(b) Alphabetically, under the name of the
owner;
(c) Under the motor number, if available; other-
wise any other identifying number of the vehicle:
and
(d) In the discretion of the department, in any
other manner it may deem advisable. (1937, c.
407, s. 20 y2.)
§ 2621(207). The department to issue certif-
icate of title and registration card. — (a) The de-
partment upon registering a vehicle shall issue a
registration card and a certificate of title as sep-
arate documents.
(b) The registration card shall be delivered to
the owner and shall contain upon the face there-
of the name and address of the owner, space for
owner's signature, the registration number as-
signed to the vehicle, and such description of the
vehicle as determined by the commissioner, and
upon the reverse side a form for endorsement of
notice to the department upon transfer of the ve-
hicle.
(c) Every owner, upon receipt of a registration
card, shall write his signature thereon with pen
and ink in the space provided. Every such regis-
tration card shall at all times be carried in the
vehicle to which it. refers, or shall be carried by
the person operating or in control of such vehicle,
who shall display the same upon demand of any
peace officer or any officer of the department.
(d) The certificate of title shall contain upon
the face thereof the identical information required
upon the face of the registration card, and in ad-
dition thereto the date of issuance and a state-
ment of the owner's title and of all liens and en-
cumbrances upon the vehicle therein described,
and whether possession is held by the owner un-
der a lease, contract or conditional sale, or other
like agreement.
(e) The certificate of title shall also contain up-
on the reverse side form of assignment of title or
interest and warranty thereof, with space for no-
tation of liens and encumbrances upon such ve-
hicle at the time of a transfer.
(f) Certificates of title upon which liens or en-
cumbrances are shown shall be delivered or mailed
by the department to the holder of the first lien
or encumbrance.
(g) Certificates of title shall bear thereon the
seal of the department.
(h) Certificates of title need not be renewed an-
nually, but shall remain valid until canceled by the
department for cause or upon a transfer of any
interest shown therein. (1937, c. 407, s. 21.)
§ 2621 (20'8). Release by lien holder to owner.
— (a) A person holding a lien or encumbrance as
shown upon a certificate of title upon a vehicle
may release such lien or encumbrance or assign
his interest to the owner without affecting the
registration of said vehicle. The department, up-
on receiving a certificate of title upon which a
lien holder has released or assigned his interest
to the owner or upon receipt of a certificate of
title not so endorsed, but accompanied by a legal
release from a lien holder of his interest in or to
a vehicle, shall issue a new certificate of title as
upon an application for duplicate certificate of
title.
(b) Any lien in favor of any person, firm or cor-
poration which, since notice of such lien to the
department has dissolved, ceased to do business,
or gone out of business for any reason whatso-
ever, and which shall remain of record in the de-
partment as a notice of lien of such person, firm
or corporation for a period of more than three
years from the date of notice, shall become null
and void and of no further force and effect as it
relates to the issuance or transfer of title by the
department. (1937, c. 407, s. 22.)
§ 2621(209). Unlawful for lienor who holds
certificate of title not to surrender same when lien
satisfied. — It shall be unlawful and constitute a
misdemeanor for a lienor who holds a certificate
of title as provided in this article to refuse or fail
to surrender such certificate of title to the person
legally entitled thereto, when called upon by such
person, within ten days after his lien shall have
been paid and satisfied, and any person convicted
under this section shall be fined not more than
fifty dollars ($50.00) or imprisoned not more than
thirty days. (1937, c. 407, s. 23.)
§ 2621(210). Owner after transfer not liable
for negligent operation, — The owner of a motor
vehicle who has made a bona fide sale or trans-
fer of his title or interest, and who has delivered
possession of such vehicle and the certificate of
title thereto properly endorsed to the purchaser or
transferee, shall not be liable for any damages
thereafter resulting from negligent operation of
such vehicle by another. (1937, c. 407, s. 24.)
§ 2621(211). Owner dismantling or wrecking ve-
hicle to return evidence of registration. — Any
owner dismantling or wrecking any vehicle shall
forward to the department the certificate of title,
registration card and/or other proof of ownership,
and the registration plate or plates last issued for
such vehicle. No person, firm or corporation shall
dismantle or wreck any motor vehicle without
first complying with the requirements of this sec-
tion. (1937, c. 407, s. 25.)
§ 2621(212). Sale of motor vehicles to be dis-
mantled.— Any owner who sells a motor vehicle
as scrap or to be dismantled or destroyed shall as-
sign the certificate of title thereto to the purchaser,
and shall deliver such certificate so assigned to
the department with an application for a permit to
dismantle such vehicle. The department shall
thereupon issue to the purchaser a permit to dis-
mantle the same, which shall authorize such per-
son to possess or transport such vehicle or to
transfer ownership thereto by endorsement upon
such permit. A certificate of title shall not again
be issued for such motor vehicle in the event it is
scrapped, dismantled, or destroyed. In any case,
[ 66
§ 2621(213)
MOTOR VEHICLES
§ 2621(218)
where the owner for any reason fails to send in
title for a junked or dismantled vehicle, the de-
partment shall have authority to take possession of
such title for cancellation. (1937, c. 407, s. 26.)
§ 2621(213). Registration plates to be fur-
nished by the department.— (a) The department
upon registering a vehicle shall issue to the owner
one registration plate for a motorcycle, trailer or
semi-trailer and two registration plates for every
other motor vehicle. Registration plates issued
by the department under this article shall be and
remain the property of the state, and it shall be
lawful for the commissioner or his duly authorized
agents to summarily take possession of any plate
or plates which he has reason to believe is being
illegally used, and to keep in his possession such
plate or plates pending investigation and legal
disposition of the same.
(b) Every registration plate shall have displayed
upon it the registration number assigned to the
vehicle for which it is issued, also the name of the
state of North Carolina, which may be abbreviated,
and the year number for which it is issued or the
date of expiration thereof.
(c) Such registration plate and the required
numerals thereon, except the year number for
which issued, shall be of sufficient size to be
plainly readable from a distance of one hundred
feet during daylight.
(d) Registration plates issued for a motor ve-
hicle other than a motorcycle, trailer or semi-
trailer shall be attached thereto, one in the front
and the other in the rear. The registration plate
issued for a motorcycle, trailer or semi-trailer
shall be attached to the rear thereof.
(e) Preservation and cleaning of registration
plates: It shall be the duty of each and every
registered owner of a motor vehicle to keep the
registration plates assigned to such motor vehicle
reasonably clean and free from dust and dirt, and
such registered owner, or any person in his em-
ploy, or who operates such motor vehicle by his
authority, shall, upon the request of any proper
officer, immediately clean such registration plates
so that the numbers thereon may be readily dis-
tinguished, and any person who shall neglect or
refuse to so clean a registration plate, after hav-
ing been requested to do so, shall be guilty of a
misdemeanor, and fined not exceeding fifty dol-
lars ($50.00) or imprisoned not exceeding thirty
days.
(f) Operating with false numbers. Any per-
son who shall wilfully, and with intent to defraud
the state of registration fees, operate a motor ve-
hicle with a registration plate which has been re-
painted or altered or forged, or which was issued
by the commissioner for a motor vehicle other
than the one on which used, shall be guilty of a
misdemeanor.
(g) Alteration, disguise, or concealment of
numbers. Any operator of a motor vehicle who
shall wilfully and with intent to conceal the iden-
tity of such motor vehicle or the identity of the
registered owner thereof, mutilate, bend, twist,
cover or cause to be covered or partially covered
by any bumper, light, spare tire, tire rack, strap,
or other device, or who shall paint, enamel, em-
boss, stamp, print, perforate, or alter or add to or
cut off any part or portion of a registration plate
or the figures or letters thereon, or who shall
place or deposit or cause to be placed or deposited
any oil, grease, or other substance upon such reg-
istration plates for the purpose of making dust
adhere thereto, or who shall deface, disfigure,
change, or attempt to change any letter or figure
thereon, or who shall display a number plate in
other than a horizontal upright position, shall be
guilty of a misdemeanor. (1937, c. 407, s. 27.)
§ 2621(214). Transfer of registration plates —
(a) Registration plates issued by the department
for vehicles privately owned and operated shall
not be transferred from one vehicle to another,
but shall be assigned and transferred from one
owner to another, upon the assignment of title as
required by this article, and shall remain on the
vehicle for which originally issued.
(b) Registration plates issued by the depart-
ment for vehicles owned and operated by the
state or any department thereof, or by any county,
city or town, school district or other political sub-
division of the state, shall not be assigned and
transferred from one owner to another, but shall
be retained by the owner to whom originally is-
sued, and may be used by the owner on another
vehicle: Provided, that the owner shall make ap-
plication to the department for said transfer and
comply with the requirements of this article rel-
ative to certificate of title for vehicle the regis-
tration plates are to be transferred to.
(c) Registration plates issued by the depart-
ment for vehicles operated for hire shall be sub-
ject to the same transfer provision as of vehicles
owned by the state or any department thereof as
set forth in subsection (b) of this section. (1937,
c. 407, s. 28.)
§ 2621(215). Expiration of registration. —
Every vehicle registration under this article and
every registration card and registration plate is-
sued hereunder shall expire at midnight on the
thirty-first day of December of each year. (1937,
c. 407, s. 29.)
§ 2621(216). Application for renewal of regis-
tration.— (a) Application for renewal of a vehicle
registration shall be made by the owner upon
proper application and by payment of the registra-
tion fee for such vehicle, as provided by law.
(b) The department may receive applications
for renewal of registration and grant the same,
and issue new registration cards and plates at any
time prior to expiration of registration, but no
person shall display upon a vehicle the new regis-
tration plates prior to December first. (1937, c.
407, s. 30.)
§ 2621(217). Notice of change of address or
name. — (a) Whenever any person, after making
application for or obtaining the registration of a
vehicle or a certificate of title, shall move from
the address named in the application or shown
upon a registration card or certificate of title, such
person shall within ten days thereafter notify the
department in writing of his old and new ad-
dresses.
(b) Whenever the name of any person who has
made application for or obtained the registration
of a vehicle or a certificate of title is thereafter
changed by marriage or otherwise, such person
shall within ten days notify the department of
such former and new name. (1937, c. 407, s. 31.)
§ 2621(218). Replacement of lost or damaged
[67]
§ 2621 (219)
MOTOR VEHICLES
§ 2621(222)
■certificates, cards and plates. — (a) In the event
any registration card or registration plate is lost,
mutilated, or becomes illegible, the owner or legal
representative of the owner of the vehicle for
which the same was issued, as shown by the rec-
ords of the department, shall immediately make
application for and may obtain a duplicate or a
substitute or a new registration under a new reg-
istration number, as determined to be most ad-
visable by the department, upon the applicant
furnishing under oath information satisfactory to
the department and payment of required fee.
(b) When a dealer acquires a motor vehicle
which has been previously licensed, he should ad-
vise the party from whom he acquires the vehicle
as to the provisions of the law which require that
party to report to the motor vehicle bureau the
sale or disposal of the vehicle. If the dealer
wishes to have the license transferred to his name
"he may do so, but this is optional with him. How-
ever, should the license plate or plates be lost or
destroyed while the vehicle is in the possession of
the dealer, no replacement may be issued unless
and until license and title has been transferred to
the dealer. Nor shall any subsequent owner se-
cure replacement plates until application for
transfer of title and license has been made.
(c) In the event any certificate of title is lost,
mutilated, or becomes illegible, the owner or legal
representative of the owner of the vehicle for
which the same was1 issued, as shown by the rec-
ords of the department, shall immediately make
application for and may obtain a duplicate upon
the applicant furnishing under oath information
satisfactory to the department and payment of
required fee. Upon issuance of any duplicate
certificate of title the previous certificate last is-
sued shall be void. (1937, c. 407, s. 32.)
§ 2621(219). Department authorized to assign
new engine number. — The owner of a motor ve-
hicle upon which the engine number or serial num-
ber has become illegible or has been removed or
obliterated shall immediately make application to
the department for a new engine or serial num-
ber for such motor vehicle. The department,
when satisfied that the applicant is the lawful
owner of the vehicle referred to in such applica-
tion is hereby authorized to assign a new engine
or serial number thereto, and shall require that
such number, together with the name of this
state, or a symbol indicating this state, be stamped
upon the engine, or in the event such number is
a serial number, then upon such portion of the
motor vehicle as shall be designated by the de-
partment. (1937, c. 407, s. 33.)
§ 2621(220). Department to be notified when
another engine is installed. — (a) Whenever a mo-
tor vehicle registered hereunder is altered by the
installation of another engine in place of an en-
gine, the number of which is shown in the regis-
tration records, the owner of such motor vehicle
shall immediately give notice to the department
in writing on a form prepared by it, which shall
state the number of the former engine and the
number of the newly installed engine, the regis-
tration number of the motor vehicle, the name of
the owner and any other information which the
department may require. Whenever another en-
gine has been substituted as provided in this sec-
tion, and the notice given as required hereunder,
the department shall insert the number of the
newly installed engine upon the registration card
and certificate of title issued for such motor ve-
hicle.
(b) Whenever a new engine or serial number
has been assigned to and stamped upon a motor
vehicle as provided in section 2621(219), or when-
ever a new engine has been installed as provided
in this section, the department shall require the
owner to surrender to the department the regis-
tration card and certificate of title previously is-
sued for said vehicle. The department shall also
require the owner to make application for a du-
plicate registration card and a duplicate certificate
of title showing the new motor or serial number
thereon, and upon receipt of such application and
fee, as for any other duplicate title, the depart-
ment shall issue to said owner a duplicate regis-
tration and a duplicate certificate of title showing
thereon the new number in place of the original
number. (1937, c. 407, s. 34.)
§ 2621(221). Altering or forging certificate of
title a felony. — Any person who shall alter with
fraudulent intent any certificate of title or regis-
tration card issued by the department, or forge or
counterfeit any certificate of title or registration
card purporting to have been issued by the de-
partment under the provisions of this article, or
who shall alter or falsify with fraudulent intent
or forge any assignment thereof, or who shall
hold or use any such certificate, registration card
or assignment knowing the same to have been al-
tered, forged or falsified, shall be guilty of a fel-
ony and upon conviction thereof shall be pun-
ished in the discretion of the court. (1937, c. 407,
s. 35.)
Part 4. Transfer of Title or Interest
§ 2621(222). Transfer by owner.— (a) When-
ever the owner of a registered vehicle transfers
or assigns his title or interest thereto, he shall en-
dorse upon the reverse side of the registration
card issued for such vehicle the name and address
of the transferee and the date of transfer, and
shall immediately forward such card to the de-
partment.
(b) The owner of any vehicle registered under
the foregoing provisions of this article, transfer-
ring or assigning his title or interest thereto, shall
also endorse an assignment and warranty of title
in form approved by the department upon the re-
verse side of the certificate of title or execute an
assignment and warranty of title of such vehicle
and a statement of all liens or encumbrances
thereon, which statement shall be verified under
oath by the owner, who shall deliver the certifi-
cate of title to the purchaser or transferee at the
time of delivering the vehicle, except that where
a deed of trust, mortgage, conditional sale or title
retaining contract is obtained from purchaser or
transferee in payment of purchase price or other-
wise, the lien holder shall forward such certificate
of title papers to the department within fifteen
days, together with necessary fees, or deliver such
papers to the purchaser at the time of delivering
the vehicle, as he may elect, but in either event
the penalty provided in section 2621(224) shall
apply if application for transfer is not made with-
in fifteen days. (1937, c. 407, s. 36.)
[68]
§ 2621(223)
MOTOR VEHICLES
§ 2621(229)
§ 2621(223). New owner to secure transfer of
registration and new certificate of title. — The
transferee within fifteen days after the purchase
shall apply to the department for a transfer of
registration of the vehicle and shall present the
certificate of title endorsed and assigned as here-
inbefore provided to the department, and make
application for and obtain a new certificate of ti-
tle for such vehicle except as otherwise permitted
in sections 2621(225) and 2621(226). (1937, c.
407, s. 37.)
§ 2621(224). Penalty for failure to make appli-
cation for transfer within the time specified by
law. — It is the intent and purpose of this article
that every new owner or purchaser of a vehicle
previously registered shall make application for
transfer of title and registration within fifteen
days after acquiring same, or see that such appli-
cation is sent in by the lien holder with proper
fees, and responsibility for such transfer shall rest
on the purchaser. Any person, firm or corporation
failing to do so shall pay a penalty of two dollars
($2.00) in addition to the fees otherwise provided
in this article. It is further provided that any
dealer or owner who shall knowingly make any
false statement in any application required by this
department as to the date a vehicle was sold or
acquired shall be guilty of a misdemeanor, and
upon conviction shall be fined not more than fifty
dollars ($50.00) or imprisoned not more than
thirty days. All moneys collected under this sec-
tion shall go to the state highway fund. (1937,
c. 407, s. 38.)
§ 2621(225). When transferee is a dealer. —
When the transferee of a vehicle is a dealer who
holds the same for resale and operates the same
only for purposes of demonstration under a deal-
er's number plate such transferee shall not be re-
quired to register such vehicle nor forward the
certificate of title to the department as provided
in section 2621(223), but such transferee, upon
transferring his title or interest to another person,
shall give notice of such transfer to the depart-
ment and shall execute and acknowledge an as-
signment and warranty of title in form approved
by the department, and deliver the same to the
person to whom such transfer is made at the same
time the vehicle is delivered, except as provided
in section 2621(222), sub-section (b). (1937, c.
407, s. 39.)
§ 2621(226). Title lost or unlawfully detained.
— Whenever the applicant for the registration of
a vehicle or a new certificate of title thereto is un-
able to present a certificate of title thereto by rea-
son of the same being lost or unlawfully detained
by one in possession, or the same is otherwise not
available, the department is hereby authorized to
receive such application and to examine into the
circumstances of the case, and may require the
filing of affidavits or other information; and when
the department is satisfied that the applicant is
entitled thereto is hereby authorized to register
such vehicle and issue a new registration card,
registration plate or plates and certificates of title
to the person entitled thereto, upon payment of
proper fee for duplicate title and/or replacement.
(1937, c. 407, s. 40.)
§ 2621(227). Transfer by operation of law—
(a) Whenever the title or interest of an owner in
or to a vehicle shall pass to another by operation
of law, as upon order in bankruptcy, execution
sale, repossession upon default in performing the
terms of a lease or executory sales contract, or
otherwise than by voluntary transfer, the trans-
feree shall secure a transfer of registration to him-
self and a new certificate of title upon proper ap-
plication, payment of the fees provided by law,,
and presentation of the last certificate of title, if
available and such instruments or documents of
authority or certified copies thereof as may be
sufficient or required by law to evidence or effect
a transfer of interest in or to chattels in such
cases: Provided, however, transfers of registra-
tion shall only be made as provided for in section
2621(214), sub-sections (a), (b) and (c).
(b) In the event of transfer as upon inheritance,
devise or bequest, the department shall, upon re
ceipt of a certified copy of a will, letters of ad-
ministration and/or a certificate from the clerk of
the superior court showing that the motor vehicle
registered in the name of the decedent owner has
been assigned to his widow as part of her year's
support, transfer both title and license as other-
wise provided for transfers. However, if no ad-
ministrator has qualified or the clerk of the supe-
rior court refuses to issue a certificate, the de-
partment may upon affidavit showing satisfactory
reasons therefor effect such transfer, but the new
title so issued shall not affect the validity nor be
in prejudice of any creditor's lien.
(c) Mechanic's or Storage Lien. — In any case
where a vehicle is sold under a mechanic's or stor-
age lien, the department shall be given a thirty-
day notice as provided in section 2621(264).
(1937, c. 407, s. 41.)
§ 2621(228). When department to transfer reg-
istration and issue new certificate. — (a) The de-
partment, upon receipt of a properly endorsed cer-
tificate of title and application for transfer of reg-
istration, accompanied by the required fee, shall
transfer the registration thereof under its registra-
tion number to the new owner, and shall issue a
new registration card and certificate of title as up-
on an original registration.
(b) The department shall retain and appropri-
ately file every application for certificate, of title
upon which certificate of title was issued and
every surrendered certificate of title, such file to
be. so maintained as to permit the tracing of title
of the vehicle designated therein. "(1937, c. 407, s.
42.)
Part 5. Issuance of Special Plates
§ 2621(229). Registration by manufacturers and
dealers. — (a) A manufacturer of or dealer in mo-
tor vehicles, trailers or semi-trailers, owning or
operating any such vehicle or any vehicle known
as a wrecker and owned by a dealer upon any
highway in lieu of registering such vehicle, may
obtain from the department, upon application
therefor upon the proper official forms and pay-
ment of the fees required by law, and attach to
each such vehicle two number plates, which plates
shall each bear thereon a distinctive number, also
the name of this state, which may be abbreviated,
and the year for which issued, together with the
word "dealer" or a distinguishing symbol indicat-
ing that such plate or plates are issued to a dealer,
[69]
§ 2621(230)
MOTOR VEHICLES
§ 2621(232)
may, during the calendar year for which issued,
be transferred from one such vehicle to another
owned and operated by such manufacturer or
dealer.
(b) Every manufacturer of or dealer in motor
vehicles shall obtain and have in their possession
a certificate of title issued by the department to
such manufacturer or dealer of each vehicle,
owned and operated upon the highways by such
manufacturer or dealer, except that a certificate of
title shall not be required for any new vehicle to
be sold as such by a manufacturer or dealer prior
to the sale of such vehicle by the manufacturer or
dealer; except that any dealer or any employee of
any dealer may operate any motor vehicle, trailer
or semi-trailer, the property of the dealer, for the
purpose of furthering the business interest of the
dealer in the sale, demonstration and servicing of
motor vehicles, trailers and semi-trailers, of col-
lecting accounts, contacting prospective customers
and generally carrying on routine business neces-
sary for conducting a general motor vehicle sales
business: Provided, that no use shall be made of
dealers' demonstration plates on vehicles operated
in any other business dealers may be engaged in:
Provided further, that dealers may allow the op-
eration of motor vehicles owned by dealers and
displaying dealer's demonstration plates in the
personal use of persons other than those employed
in the dealer's business: Provided further, that
said persons shall, at all times while operating a
motor vehicle under the provisions of this section,
have in their possession a certificate on such form
as approved by the commissioner from the dealer,
which shall be valid for not more than forty-eight
hours: Provided further, that motor vehicles,
trailers and semi-trailers sold by dealers may be
operated for a period not exceeding ten days from
the date of sale by the purchaser thereof with
dealer's demonstration plates, provided the pur-
chasers have in their possession receipts from the
dealers upon which the dealer has certified that
the necessary amount of money to pay for titles
and licenses has been paid by the purchasers to
the dealers to be forwarded to the motor vehicle
bureau, either direct or through one of its branch
offices, on such form as approved by the commis-
sioner.
(c) No manufacturer of or dealer in motor ve-
hicles, trailers or semi-trailers shall cause or per-
mit any such vehicle owned by such person to be
operated or moved upon a public highway with-
out there being displayed upon such vehicle a
number plate or plates issued to such person, ei-
ther under section 2621(213) or under this sec-
tion.
(d) No manufacturer of or dealer in motor ve-
hicles, trailers or semi-trailers shall cause or per-
mit any such vehicle owned by such person or by
any person in his employ, which is in the personal
use of such person or employee, to be operated or
moved upon a public highway with a "dealer"
plate attached to such vehicle.
(e) Transfer of Dealer Registration. — No
change in the name of a firm, partnership or cor-
poration, nor the taking in of a new partner, nor
the withdrawal of one or more of the firm, shall
be considered a new business; but if any one or
more of the partners remain in the firm, or if there
is change in ownership of less than a majority of
the stock, if a corporation, the business shall be
regarded as continuing and the dealers' plates
originally issued may continue to be used. (1937,
c. 407, s. 43.)
§ 2621(230). National guard plates.— The com-
missioner of revenue shall cause to be made each
year a sufficient number of automobile license
plates to furnish each officer of the North Caro-
lina National Guard with a set thereof, said li-
cense plates to be in the same form and character
as other license plates now or hereafter authorized
by law to be used upon private passenger vehicles
registered in this state, except that such license
plates shall bear on the face thereof the following
words, "National Guard." The said license plates
shall be issued only to officers of the North Caro-
lina National Guard, and for which license plates
the commissioner of revenue shall collect fees in
an amount equal to the fees collected for the li-
censing and registering of private vehicles. The
adjutant general of North Carolina shall furnish
to the commissioner of revenue each year, prior
to the date that licenses are issued, a list of the
officers of the North Carolina National Guard,
which said list shall contain the rank of each of-
ficer listed in the order of his seniority in the serv-
ice, and the said license plates shall be numbered,
beginning with the number two hundred and one
and in numerical sequence thereafter up to and
including the number five hundred, according to
seniority, the senior officer being issued the li-
cense bearing the numerals two hundred and one.
Upon transfer of the ownership of a private pas-
senger vehicle upon which there is a license plate
bearing the words national guard, said plates shall
be removed and the authority to use the same
shall thereby be canceled; however, upon applica-
tion to the commissioner of revenue, he shall re-
issue said plates to the officer of the national
guard to whom the same were originally issued,
and upon said re-issue the commissioner of rev-
enue shall collect fees in an amount equal to the
fees collected for the original licensing and reg-
istering of said private passenger vehicle as is
now or may be prescribed by law. (1937, c. 407,
s. 44.)
§ 2621(231). Official license plates,— Official li-
cense plates issued as a matter of courtesy to state
officials shall be subject to the same transfer pro-
visions as provided in section 2621(230). (1937,
c. 407, s. 45.)
§ 2621(232). Manufacturer to give notice of
sale or transfer. — Every manufacturer or dealer,
upon transferring a motor vehicle, trailer or semi-
trailer, whether by sale, lease or otherwise, to any
person other than the manufacturer or dealer
shall, on or before the tenth of each month, give
written report of all such transfers made during
the preceding calendar month to the department
upon the official form provided by the depart-
ment. Every such report shall contain the date
of such transfer, the names and addresses of the
transferer and transferee and such description of
the vehicle as may be called for in such official
form. Every manufacturer or dealer shall keep a
record of all vehicles received or sold containing
such information regarding same as the depart-
ment may require. (1937, c. 407, s. 46.)
[70]
§ 2621(233)
MOTOR VEHICLES
§ 2621(237)
Part 6. Vehicles of Non-Residents of State, etc.
§ 2621(233). Registration by non-residents. —
(a) Non-residents of this state, except as other-
wise provided in this article, will be exempt from
the provisions of this article as to the registration
of motor vehicles for the same time and to the
same extent as like exemptions are granted resi-
dents of this state under laws of another state,
district or territory: Provided, that they shall
have complied with the provisions of the law of
the state, district or territory of their residence
relative to the registration and equipment of their
motor vehicles, and shall conspicuously display
the registration plates as required thereby, and
have in their possession the registration certifi-
cates issued for such motor vehicles, and that
nothing herein contained shall be construed to
permit a bona fide resident of this state to use any
registration plate or plates from a foreign state,
district or territor}^ under the provisions of this
section. The commissioner shall determine what
exemptions the non-resident vehicle operators of
the several states, districts or territories, are enti-
tled to under the provisions of this section, and
ordain and publish rules and regulations for mak-
ing effective the provisions of this section, which
rules and regulations shall be observed and en-
forced by all the officers of this state whose du-
ties require the enforcement of the automobile
registration laws, and any violations of such rules
and regulations shall constitute a misdemeanor.
(b) Motor vehicles duly registered in a state or
territory which are not allowed exemptions by the
commissioner, as provided for in the preceding
paragraph, desiring to make occasional trips into
or through the state of North Carolina, may be
permitted the same use and privileges of the high-
ways of this state as provided for similar vehicles
regularly licensed in this state, by procuring from
the commissioner trip licenses upon forms and
under rules and regulations to be adopted by the
commissioner, good for use for a period of thirty
days upon the payment of a fee in compensation
for said privilege equivalent to one-tenth of the
annual fee which would be chargeable against said
vehicle if regularly licensed in this state: Pro-
vided, however, that nothing in this provision
shall prevent the extension of the privileges of the
use of the roads of this state to vehicles of other
states under the reciprocity provisions provided by
law: Provided further, that nothing herein con-
tained shall prevent the owners of vehicles from
other states from licensing such vehicles in the
state of North Carolina under the same terms and
the same fees as like vehicles are licensed by own-
ers resident in this state.
(c) Every non-resident, including any foreign
corporation carrying on business within this state
and owning and operating in such business any
motor vehicle, trailer or semi-trailer within this
state, shall be required to register each such ve-
hicle and pay the same fees therefor as is required
with reference to like vehicles owned by residents
of this state. (1937, c. 407, s. 47.)
§ 2621(234). Vehicles owned by state, munici-
palities or orphanages, etc. — The department, up-
on proper proof being filed with it that any mo-
tor vehicle for which registration is herein re-
thereof, or by any county, township, city or town,
or by any board of education, or by any orphan-
age, shall collect one dollar for the registration of
such motor vehicles, but shall not collect any fee
for application for certificate of title in the name
of the state or any department thereof, or by any
county, township, city or town, or by any board
of education or orphanage: Provided, that the
term "owned" shall be construed to mean that
such motor vehicle is the actual property of the
state or some department thereof, or of the
county, township, city or town, or of the board of
education, and no motor vehicle which is the prop-
erty of any officer or employee of any department
named herein shall be construed as being "owned"
by such department. (1937, c. 407, s. 48.)
Part 7. Title and Registration Fees
§ 2621(235). Schedule of fees.— There shall be
paid to the department for the issuance of certifi-
cates of title, transfer of registration and replace-
ment of registration plates fees according to the
following schedules:
(a) Each application for certificate of title.. $ .50
(b) Each application for duplicate certificate
of title 50
(c) Each application of repossessor for cer-
tificate of title 50
(d) Each transfer of registration 1.00
(e) Each set of replacement registration
plates 1.00
(1937, c. 407, S. 49.)
§ 2621(236). Penalty for engaging in a "for
hire" business without proper license plates. — Any
person, firm or corporation engaged in the busi-
ness of transporting persons or property for com-
pensation, except as otherwise provided in this
article, shall, before engaging in such business,
pay the license fees prescribed by this article and
secure the license plates provided for vehicles op-
erated for hire. Any person, firm or corporation
operating vehicles for hire without having paid
the tax prescribed or using private plates on such
vehicles shall be liable for an additional tax of
twenty-five dollars ($25.00) for each vehicle in ad-
dition to the normal fees provided in this article.
(1937, c. 407, s. 50.)
§ 2621(237). Passenger vehicle registration fees.
— There shall be paid to the department annually,
as of the first day of January, for the registration
and licensing of ,passenger vehicles, fees according
to the following classifications and schedules:
(a) Franchise Bus Carriers. — Franchise bus
carriers shall pay an annual license tax of ninety
cents per hundred pounds weight of each vehicle
unit, and in addition thereto six per cent of the
gross revenue derived from such operation: Pro-
vided, said additional six per cent shall not be
collectible unless and until and only to the extent
that such amount exceeds the license tax of
ninety cents per hundred pounds: Provided fur-
ther, that franchise bus carriers operated between
point or points within this state and point or
points without this state shall be required to ac-
count as compensation for the use of the high-
ways of this state and the special privileges ex-
tended such carriers by this state in computing
the six per cent tax, only on that proportion of
quired is owned by the state or any department I the gross revenue, earned both within and with-
[71]
§ 2621(238)
MOTOR VEHICLES
§ 2621(238)
out this state, which corresponds to the propor-
tion of mileage in this state as compared with the
total mileage, but in no event shall the tax paid
by such franchise bus carriers be less than ninety
cents per hundred pounds weight for each ve-
hicle.
(b) U-Drive-It Passenger Vehicles. — U-drive-
it passenger vehicles shall pay the following tax:
Motorcycles: 1-passenger capacity $12.00'
2-passenger capacity 15.00
3-passenger capacity 18.00
Automobiles: $1.90 per hundred pounds weight of
each vehicle.
(c) For Hire Passenger Vehicles. — For hire
passenger vehicles shall be taxed at the rate of
$1.90 per hundred pounds of weight.
(d) Excursion Passenger Vehicles. — Excursion
passenger vehicles shall be taxed at the rate of
$8.00 per passenger capacity, with a minimum
charge of $25.00, but such vehicles operating un-
der a certificate as a restricted common carrier
under chapter one hundred thirty-six of the Pub-
lic Laws of one thousand nine hundred twenty-
seven [§ 2613 (j) et seq.], and amendments there-
to, shall also be liable to the gross revenue six
per cent tax to the extent it exceeds the tax here-
in levied under the same provisions provided for
franchise bus carriers.
(e) Private Passenger Vehicles. — Private pas-
senger vehicles shall be taxed at thirty-five cents
per hundred pounds of weight or major fraction
thereof, according to the manufacturer's shipping
weight: Provided, that no fee for any private
passenger vehicles shall be less than $7.00.
(f ) Private Passenger Motorcycles. — Private
passenger motorcycles shall pay for each motor-
cycle $5.00, and for each side car $5.00.
(g) Manufacturers and Motor Vehicle Dealers.
— Manufacturers and dealers in motor vehicles
for demonstration tags shall pay as a registration
fee and for one set of plates $25.00, and for each
additional set of plates $1.00.
(h) Driveaway Companies. — Any person, firm
or corporation engaged in the business of driving
new motor vehicles from the place of manufac-
ture to the place of sale in this state for compen-
sation shall pay as a registration fee and for one
set of plates one hundred dollars ($100.00) and
for each additional set of plates five dollars
($5.00). (1937, c. 407, s. 51.)
§ 2621(238). Property hauling vehicles. — (a)
Determination of Weight. — For the purpose of li-
censing, the weight of the several classes of motor
vehicles used for transportation of property shall
be the gross weight and load, to be determined
by the manufacturer's gross weight capacity as
shown in an authorized national publication, such
as "commercial car journal" or the statistical is-
sue of "automotive industries," all such weights
subject to verification by the commissioner or his
authorized deputy, and if no such gross weight
on any vehicle is available in such publication,
then the gross weight shall be determined by the
commissioner or his authorized agent: Provided,
that any determination of weight shall be made
only in units of one thousand pounds or major
fraction thereof, weights of over five hundred
pounds being counted as one thousand and
weights of five hundred pounds or less being dis-
regarded. Semi-trailers licensed for use in con-
nection with a truck or truck-tractor shall in no
case be licensed for less gross weight capacity
than the truck or truck-tractor with which it is
to be operated.
(b) There shall be paid to the department an-
nually, as of the first day of January, for the reg-
istration and licensing of trucks, truck-tractors,
trailers and semi-trailers, fees according to the
following classifications and schedules:
Schedule of Weights and Rates
Rate per hundred pounds gross weight:
Private Contract Franchise
Hauler Hauler Hauler
(Deposit)
Gross weight not over
4,500 pounds $0.30 $0.75 $0.60
4,501 pounds to 8,500 in-
clusive 40 .75 .60
8,501 pounds to 12,500
pounds inclusive 50 1.00 .60
12,501 pounds to 16,500
inclusive 70 1.15 .60
Over 16,500 pounds 80 1.40 .60
(c) The minimum rate for any vehicle licensed
under this section shall be twelve dollars ($12.00),
except that the license fee for a trailer having not
more than two wheels with a gross weight of ve-
hicle and load not exceeding fifteen hundred
(1500) pounds and towed by a passenger car
shall be two dollars ($2.00) for any part of the
license year for which said license is issued, and
the license fee for a two-wheel trailer the gross
weight for vehicle and load of more than fifteen
hundred (1500) pounds but not more than twenty-
five hundred (2500) pounds and towed by a pas-
senger car shall be ten dollars ($10.00) for the
entire year, subject to the provision for quarterly
license as provided for other vehicles: Provided,
however, that any such trailers operated for hire
shall be taxed at the same rate as contract hauler
vehicles.
(d) Rates on trucks, trailers and semi-trailers
wholly or partially equipped with solid tires shall
be double the above schedule.
(e) Franchise Haulers. — Franchise haulers shall
pay an annual license tax as per the above sched-
ule of rates for each vehicle unit, and in addition
thereto six per cent of the gross revenue derived
from such operation, except on vehicles licensed
for inter-state routes and used exclusively for in-
ter-state business where more than fifty per cent
of the designated route lies outside of the state of
North Carolina, the required deposit may be re-
duced by the commissioner to fifty per cent of
the above schedule of rates as to deposit only:
Provided, said additional six percent shall not be
collectible unless and until and only to the extent
that such amount exceeds the license tax or de-
posit per the above schedule: Provided further,
that franchise haulers operating between point or
points within this state and point or points with-
out this state shall be required to account as com-
pensation for the use of the highway of this state
and the special privileges extended such carriers
by this state in computing the six per cent tax
only on that proportion of the gross revenue
earned both within and without this state which
corresponds to the proportion of the mileage in
[72]
§ 2621(239)
MOTOR VEHICLES
§ 2621(244)
this state as compared to the total mileage, but
in no event shall the tax paid by such franchise
hauler be less than the license tax or deposit
shown on the above schedule, except where a
franchise is hereafter issued by the utilities com-
mission for service over a route within the state
which is not now served by any franchise hauler
the six per cent gross revenue tax may be re-
duced to four per cent for the first two years only.
(f) Non-resident motor vehicle carriers which
do not operate in intrastate commerce in this
state, and the title to whose vehicles are not re-
quired to be registered under the provisions of
this article, shall be taxed for the use of the roads
in this state and shall pay the same fees therefor
as are required with reference to like vehicles
owned by residents of this state: Provided, that
if any such fees as applied to non-residents shall
at any time become inoperative, such carriers
shall be taxed for the use of the roads of this
state as franchise haulers as provided above:
Provided further, that this provision shall not
prevent the extension to vehicles of other states
the benefits of the reciprocity provisions provided
by law.
(g) Contract haulers under the definitions of
this article who receive and operate under a cer-
tificate or permit or other authority from the utili-
ties commissioner as restricted common carriers
under the provisions of chapter one hundred thirty-
six of the Public Laws of one thousand nine hun-
dred twenty-seven [§ 2613 (j) et seq.], and amend-
ments thereto, shall, in addition to the rate of tax
for contract carriers provided above, be subject
to the gross six per cent tax to the extent that it
exceeds the rate for contract haulers to be levied
and collected in the same manner provided for
franchise haulers, and the tax in the schedule
provided for contract haulers shall be deemed a
deposit only. (1937, c. 407, s. 52.)
§ 2621(239). Method of computing gross reve-
nue of franchise bus carriers and haulers. — In
computing the gross revenue of franchise bus
carriers and franchise haulers, revenue derived
from the transportation of United States mail or
other United States government services shall not
be included. All revenue earned both within and
without this state from the transportation of per-
sons or property, except as herein provided, col-
lected by franchise bus carriers and franchise
haulers, whether on fixed schedule routes or by
special trips or by auxiliary vehicles not licensed
as franchise haulers, whether owned by the
franchise hauler or hired from another for the
transportation of persons or property within the
limits of the designated franchise route shall be
included in the gross revenue upon which said
tax is based. (1937, c. 407, s. 53.)
§ 2621(240). Due date of franchise tax.— The
six per cent additional tax on franchise bus car-
riers and franchise haulers shall become due and
payable on or before the twentieth day of the
month following the month in which it accrues.
(1937, c. 407, s. 54.)
§ 2621(241). Records and reports required of
franchise carriers. — (a) Every franchise bus car-
rier and franchise hauler shall keep a record of all
business transacted and all revenue received on
such forms as may be prescribed by or satisfac-
[7
tory to the commissioner of revenue, and such
records shall be preserved for a period of three
years, and shall at all times during the business
hours of the day be subject to inspection by the
commissioner of revenue or his deputies or such
other agents as may be duly authorized by the
commissioner. Any operator of such a franchise
line failing to comply with or violating any of the
provisions of this section shall be guilty of a mis-
demeanor and upon conviction thereof shall be
fined or imprisoned in the discretion of the court.
(b) All franchise bus carriers and franchise
haulers shall, on or before the twentieth day of
each month, make a report to the department of
gross revenue earned and gross mileage operated
during the month previous, in such manner as the
department may require and on such forms as
the department shall furnish.
(c) It shall be the duty of the commissioner of
revenue, by competent auditors, to have the books
and records of every franchise bus carrier and
franchise hauler examined at least once each year
to determine if such operators are keeping com-
plete records as provided by this section of this
article, and to determine if correct reports have
been made to the state department of revenue
covering the total amount of tax liability of such
operators.
(d) If any franchise bus carrier or franchise
hauler shall wilfully fail, neglect, or refuse to keep
such records or to make such reports as required,
and within the time provided in this article, the
commissioner of revenue shall immediately in-
form himself as best he may as to all matters and
things required to be set forth in such records
and reports, and from such information as he may
be able to obtain, determine and fix the amount
of the tax due the state from such delinquent op-
erator for the period covering the delinquency,
adding to the tax so determined and as a part
thereof an amount equal to five per cent (5%) of
the tax, to be collected and paid. The said com-
missioner shall proceed immediately to collect
the tax including the additional five per cent
(5%). (1937, c. 407, s. 55.)
§ 2621(242). Revocation of franchise registra-
tion.— The failure of any franchise bus carrier or
any franchise hauler to pay any tax levied under
this article, and/or to make reports as is required,
shall constitute cause for revocation of registra-
tion and franchise, and the commissioner is here-
by authorized to seize the registration plates of
any such delinquent carrier and require the cessa-
tion of the operation of such vehicles. (1937, c.
407, s. 56.)
§ 2621(243). Bond or deposit required.— The
commissioner, before issuing any registration
plates to a franchise bus carrier or a franchise
hauler, shall either satisfy himself of the financial
responsibility of such carrier or require a bond
or deposit in such amount as he may deem nec-
essary to insure the collection of the tax imposed
by this section. (1937, c. 407, s. 57.)
§ 2621(244). Partial payments.— In the pur-
chase of licenses, where the gross amount of the
license to any one owner amounts to more than
four hundred dollars ($400.00), half of such pay-
ment may be deferred until April first in any
calendar year upon the execution to the commis-
]
§ 2621(245)
MOTOR VEHICLES
§ 2621(252)
sioner of a draft upon any bank or trust com-
pany upon forms to be provided by the commis-
sioner in an amount equivalent to one-half of
such tax, plus a carrying charge of two per cent
(2%): Provided, that any person using any tag
so purchased after the first day of April in any
such year, without having first provided for the
payment of such draft, shall be guilty of a misde-
meanor. Any such drafts being dishonored and
not paid shall be immediately turned over by the
commissioner to his duly authorized agents and/or
the state highway patrol, to the end that this pro-
vision may be enforced. (1937, c. 407, s. 58.)
§ 2621(245). Quarterly payments. — Licenses is-
sued on or after April first of each year and be-
fore July first for all vehicles, except franchise
haulers and two-wheel trailers under one thou-
sand five hundred pounds weight pulled by pas-
senger cars, shall be three-fourths of the annual
fee. Licenses issued on or after July first and
before October first, except two-wheel trailers
under one thousand five hundred pounds weight
pulled by passenger cars, shall be one-half the
annual fee. Licenses issued on or after October
first, except on two-wheel trailers under one thou-
sand five hundred pounds weight pulled by pas-
senger cars, shall be one-fourth of the annual
fee. (1937, c. 407, s. 59.)
§ 2621(246). Overloading. — The commissioner,
or his authorized agent, may allow any owner of
a motor vehicle for transportation of property to
overload said vehicle by paying the fee at the
rate per hundred pounds which would be assessed
against such vehicle if its gross weight capacity
provided for such load; but such calculation shall
be made only in units of one thousand pounds or
major fraction thereof, excessive weights of five
hundred pounds or less being disregarded and
weights of more than five hundred pounds and
not more than one thousand pounds being counted
as one thousand. It is the intent of this section
that every owner of a motor vehicle shall procure
license in advance to cover any overload which
may be carried. Any owner failing to do so, and
whose vehicle shall be found in operation on the
highways carrying an overload in excess of one
ton over the weight for which such vehicle is li-
censed, shall pay in addition to the normal tax
levied in this article an additional tax of three
dollars ($3.00) per each thousand pounds in ex-
cess of the licensed weight of such vehicle.
(1937, c. 407, s. 60.)
§ 2621(247). Taxes compensatory. — (a) All
taxes levied under the provisions of this article
are intended as compensatory taxes for the use
and privileges of the public highways of this state,
and shall be paid by the commissioner to the state
treasurer, to be credited by him to the state high-
way fund; and no county or municipality shall
levy any license or privilege tax upon the use of
any motor vehicle licensed by the state of North
Carolina, except that cities and towns may levy
not more than one dollar ($1.00) per year upon
any such vehicle resident therein.
(b) No additional franchise tax, license tax,
or other fee shall be imposed by the state against
any franchise motor vehicle carrier taxed under
this article nor shall any county, city or town im-
pose a franchise tax or other fee upon them.
(c) In addition to the appropriation carried in
the Appropriations Act there shall be appropri-
ated to the motor vehicle bureau the additional
sum of fifteen thousand dollars ($15,000.00) from
the state highway fund: Provided, that such ad-
ditional sum shall be made available only in the
event that the regular appropriation is insufficient
and it shall be determined by the director of the
budget that such additional amount is necessary
to carry out the provisions of this article. (1937,
c. 407, s. 61.)
§ 2621(248). Tax lien. — In the distribution of
assets in case of receivership or insolvency of the
owner against whom the tax herein provided is
levied and in the order of payment thereof, the
state shall have priority over all other debts or
claims except prior recorded liens or liens given
by statute an express priority. (1937, c. 407, s.
62.)
§ 2621(249). Collection by duress. — Whenever
any tax imposed by this article shall be in de-
fault for a period of ten days, it shall be the duty
of the commissioner to certify the same to the
sheriff of any county of this state in which such
delinquent motor vehicle operator is operating,
which said certificate to said sheriff shall have
all the force and effect of a judgment and execu-
tion, and the said sheriff is hereby authorized and
directed to levy upon any property in said county
owned by said delinquent motor vehicle operator
and to sell the same for the payment of said tax
as other property is sold in the state for the non-
payment of taxes; and for such services the sher-
iff shall be allowed the fees now prescribed by
law for sales under execution, and the cost in
such cases shall be paid by the delinquent tax-
payer or out of the proceeds of the said property,
and upon the filing of said certificate with the
sheriff, in the event the delinquent taxpayer shall
be the operator of any franchise bus carrier or
franchise hauler vehicle, the franchise certificate
issued to such operator shall become null and
void and shall be canceled by the utilities com-
missioner, and it shall be unlawful for any such
franchise bus carrier or the operator of any fran-
chise hauler vehicle to continue the operation un-
der said franchise. (1937, c. 407, s. 63.)
§ 2621(250). Vehicles destroyed by fire or colli-
sion.— Upon satisfactory proof to the commis-
sioner that any motor vehicle, duly licensed, has
been completely destroyed by fire or collision, the
owner of such vehicle may be allowed on the pur-
chase of a new license for another vehicle a credit
equivalent to the unexpired proportion of the cost
of the original license, dating from the first day
of the next month after the date of such destruc-
tion. (1937, c. 407, s. 64.)
§ 2621(251). Vehicles to be marked. — All mo-
tor vehicles licensed as franchise bus carriers,
franchise hauler vehicles and contract hauler ve-
hicles, shall have printed on the side thereof in
letters not less than three inches in height the
name and home address of the owner, or such
other identification as the utilities commissioner
may approve. (1937, c. 407, s. 65.)
Part 8. Anti-Theft and Enforcement Provisions.
§ 2621(252). Report of stolen and recovered
motor vehicles. — Every sheriff, chief of police, or
[74]
§ 2621(253)
MOTOR VEHICLES
§ 2621(261)
peace officer upon receiving reliable information
that any vehicle registered hereunder has been
stolen shall immediately report such theft to the
department. Any said officer upon receiving in-
formation that any vehicle, which he has pre-
viously reported as stolen, has been recovered,
shall immediately report the fact of such recov-
ery to the department. (1937, c. 407, s. 66.)
§ 2621(253). Reports by owners of stolen and
recovered vehicles. — The owner, or person hav-
ing a lien or encumbrance upon a registered ve-
hicle which has been stolen or embezzled, may
notify the department of such theft or embezzle-
ment, but in the event of an embezzlement may
make such report only after having procured the
issuance of a warrant for the arrest of the person
charged with such embezzlement. Every owner
or other person who has given any such notice
must notify the department of the recovery of
such vehicle. (1937, c. 407, s. 67.)
§ 2621(254). Action by department on report of
stolen or embezzled vehicles. — (a) The depart-
ment, upon receiving a report of a stolen or em-
bezzled vehicle as hereinbefore provided, shall
file and appropriately index the same and shall
immediately suspend the registration of the ve-
hicle so reported, and shall not transfer the regis-
tration of the same until such time as it is noti-
fied in writing that such vehicle has been recov-
ered.
(b) The department shall at least once each
month compile and maintain at its headquarters
office a list of all vehicles which have been stolen
or embezzled or recovered as reported to it dur-
ing the preceding month, and such lists shall be
open to inspection by any peace officer or other
persons interested in any such vehicle. (1937, c.
407, s. 68.)
§ 2621(255). Unlawful taking of a vehicle —
Any person who drives a vehicle, not his own,
without the consent of the owner thereof, and
with intent to temporarily deprive said owner of
his possession of such vehicle, without intent to
steal the same, is guilty of a misdemeanor. The
consent of the owner of a vehicle to its taking or
driving shall not in any case be presumed or im-
plied because of such owner's consent on a pre-
vious occasion to the taking or driving of such
vehicle by the same or a different person. Any
person who assists in, or is a party or accessory
to or an accomplice in any such unauthorized tak-
ing or driving, is guilty of a misdemeanor. (1937,
c. 407, s. 69.)
§ 2621(256). Receiving or transferring stolen
vehicles. — Any person who, with intent to procure
or pass title to a vehicle which he knows or has
reason to believe has been stolen or unlawfully
taken, receives or transfers possession of the
same from or to another, or who has in his pos-
session any vehicle which he knows or has rea-
son to believe has been stolen or unlawfully taken,
and who is not an officer of the law engaged at
the time in the performance of his duty as such
officer, is guilty of a felony. (1937, c. 407, s. 70.)
§ 2621(257). Injuring or tampering with ve-
hicle.— (a) Any person who either individually
or in association with one or more other persons
[7
wilfully injures or tampers with any vehicles or
brakes or removes any part or parts of or from a
vehicle without the consent of the owner is guilty
of a misdemeanor.
(b) Any person who, with intent to steal, com-
mit any malicious mischief, injury or other crime,
climbs into or upon a vehicle, whether it is in
motion or at rest, or with like intent attempts to
manipulate any of the levers, starting mechanism,
brakes, or other mechanism or device of a ve-
hicle while the same is at rest and unattended or
with like intent sets in motion any vehicle while
the same is at rest and unattended, is guilty of a
misdemeanor. (1937, c. 407, s. 71.)
§ 2621(258). Vehicles without manufacturer's
numbers. — Any person who knowingly buys, re-
ceives, disposes of, sells, offers for sale, or has in
his possession any motor vehicle, or engine re-
moved from a motor vehicle, from which the
manufacturer's serial or engine number or other
distinguishing number or identification mark or
number placed thereon under assignment from
the department has been removed, defaced, cov-
ered, altered, or destroyed for the purpose of con-
cealing or misrepresenting the identity of said
motor vehicle or engine is guilty of a misde-
meanor. (1937, c. 407, s. 72.)
§ 2621(259). Altering or changing engine or
other numbers. — No person shall with fraudulent
intent deface, destroy, or alter the manufacturer's
serial or engine number or other distinguishing
number or identification mark of a motor vehicle,
nor shall any person place or stamp any serial,
engine, or other number or mark upon a motor
vehicle, except one assigned thereto by the de-
partment. Any violation of this provision is a
misdemeanor. (1937, c. 407, s. 73.)
§ 2621(260). When registration shall be re-
scinded.— (a) The department shall rescind and
cancel the registration of any vehicle which the
department shall determine is unsafe or unfit to
be operated or is not equipped as required by law.
(b) The department shall rescind and cancel
the registration of any vehicle whenever the per-
son to whom the registration card or registration
number plates therefor have been issued shall
make or permit to be made any unlawful use of
the said card or plates or permit the use thereof
by a person not entitled thereto.
(c) The department shall rescind and cancel
the license of any dealer to whom such license
has been issued when such dealer allows his reg-
istration number plates to be used for other than
demonstration purposes except as provided by
section 2621(229), fails to carry out the provisions
of section 2621(229) and section 2621(232), or is
convicted of a felony. (1937, c. 407, s. 74.)
§ 2621(261). Violation of registration provisions.
— It shall be unlawful for any person to commit
any of the following acts:
(a) To operate or for the owner thereof know-
ingly to permit the operation upon a highway of
any motor vehicle, trailer, or semi-trailer which
is not registered or for which a certificate of title
has not been issued, or which does not have at-
tached thereto and displayed thereon the regis-
tration number plate or plates assigned thereto
by the department for the current registration
5]
§ 2621(262)
MOTOR VEHICLES
§ 2621(266)
year, subject to the exemption mentioned in sec-
tion 2621(229).
(b) To display or cause or permit to be dis-
played or to have in possession any registration
card, certificate of title or registration number
plate knowing the same to be fictitious or to have
been canceled, revoked, suspended or altered.
(c) The giving, lending, or borrowing of a li-
cense plate for the purpose of using same on
some motor vehicle other than that for which is-
sued shall make the giver, lender, or borrower
guilty of a misdemeanor, and upon conviction he
shall be fined not more than fifty dollars ($50.00),
or imprisoned not more than thirty days. Where
license plate is found being improperly used, such
plate or plates shall be revoked or canceled, and
new license plates must be purchased before fur-
ther operation of the motor vehicles.
(d) To fail or refuse to surrender to the de-
partment, upon demand, any title certificate reg-
istration card or registration number plate which
has been suspended, canceled or revoked as in
this article provided.
(e) To use a false or fictitious name or address
in any application for the registration of any ve-
hicle or for a certificate of title or for any renewal
or duplicate thereof, or knowingly to make a
false statement or knowingly to conceal a mate-
rial fact or otherwise commit a fraud in any such
application. (1937, c. 407, s. 75.)
§ 2621(262). Making false affidavit perjury. —
Any person who shall knowingly make any false
affidavit or shall knowingly swear or affirm
falsely to any matter or thing required by the
terms of this article to be sworn or affirmed to
shall be guilty of perjury, and upon conviction
shall be punishable by a fine and imprisonment as
other persons committing perjury are punishable.
(1937, c. 407, s. 76.)
§ 2621(263). Licenses protected. — No person,
partnership, association or corporation shall main-
tain an office or place of business in which or
through which persons desiring transportation for
themselves or their baggage are brought into con-
tact by advertisement or otherwise with persons
owning or operating motor vehicles and willing
to transport other persons, or baggage, for com-
pensation, or on a division of expense basis, un-
less the owner or operator of such motor vehicles
furnishing the transportation has qualified under
the tax provisions of this article for the class of
service he holds himself out to perform. (1937,
c. 407, s. 77.)
§ 2621(264). Duty of officer; manner of en-
forcement.— (a) For the purpose of enforcing the
provisions of this article, it is hereby made the
duty of every police officer, every marshal, deputy
marshal, or watchman of any incorporated city or
village, and every sheriff, deputy sheriff, and all
other lawful officers of any county, and every con-
stable of any township, to arrest within the limits
of their jurisdiction any person known personally
to any such officer, or upon the sworn information
of a creditable witness, to have violated any. of
the provisions of this chapter, and to immediately
bring such offender before any justice of the peace
or officer having jurisdiction, and any such person
so arrested shall have the right of immediate trial,
and all other rights given to any person arrested
[7
for having committed a misdemeanor. Every
officer herein named who shall neglect or refuse
to carry out the duties imposed by this chapter
shall be liable on his official bond for such neglect
or refusal as provided by law in like cases.
(b) It shall be the duty of all sheriffs, police
officers, deputy sheriffs, deputy police officers, and
all other officers within the state to co-operate
with and render all assistance in their power to
the officers herein provided for, and nothing in
this article shall be construed as relieving said
sheriffs, police officers, deputy sheriffs, deputy
police officers, and other officers of the duties im-
posed on them by chapter fifty-five (§ 2598 et
seq.) of the Consolidated Statutes.
(c) It shall also be the duty of every sheriff of
every county of the state and of every police or
peace officer of the state to make immediate re-
port to the commissioner of all motor vehicles re-
ported to him as abandoned or that are seized by
him for being used for illegal transportation of
intoxicating liquors or other unlawful purposes,
and no motor vehicle shall be sold by any sheriff,
police or peace officer, or by any person, firm or
corporation claiming a mechanic's or storage lien,
or under judicial proceedings, until notice shall
have been given the commissioner at least thirty
days before the date of such sale. (1937, c. 407.
s. 78.)
Part 9. The Size, Weight, Construction and
Equipment of Vehicles
§ 2621(265). Scope and effect of regulations in
this title.; — It shall be unlawful and constitute a
misdemeanor for any person to drive or move or
for the owner to cause or knowingly permit to be
driven or moved on any highway any vehicle or
vehicles of a size or weight exceeding the limita-
tions stated in this title, or any vehicle or vehicles
which are not so constructed or equipped as re-
quired in this title, or the rules and regulations of
the commission adopted pursuant thereto and the
maximum size and weight of vehicles herein
specified shall be lawful throughout this state, and
local authorities shall have no power or authority
to alter said limitations except as express author-
ity may be granted in this article. (1937, c. 407,
s. 79.)
§ 2621(266). Size of vehicles and loads. — (a)
The total outside width of any vehicle or the load
thereon shall not exceed ninety-six inches, except
as otherwise provided in this section.
(b) No passenger-type vehicle shall be operated
on any highway with any load carried thereon ex-
tending beyond the line of the fenders on the left
side of such vehicle nor extending more than six
inches beyond the line of the fenders on the right
side thereof.
(c) No vehicle unladen or with load, shall ex-
ceed a height of twelve feet, six inches.
(d) No vehicle shall exceed a length of thirty-
five feet extreme over-all dimension, inclusive of
front and rear bumpers. A truck-tractor and semi-
trailer shall be regarded as two vehicles for the
purpose of determining lawful length and license
taxes.
(e) No combination of vehicles coupled together
shall consist of more than two units and no such
combination of vehicles shall exceed a total length
of forty-five feet exclusive of front and rear bump-
ers, subject to the following exceptions: Said
§ 2621(267)
MOTOR VEHICLES
§ 2621(270)
length limitation shall not apply to vehicles oper-
ated in the daytime when transporting poles, pipe,
machinery or other objects of a structural nature
which cannot readily be dismembered, nor to such
vehicles transporting such objects operated at
night-time by a public utility when required for
emergency repair of public service facilities or
properties, but in respect to such night transpor-
tation every such vehicle and the load thereon shall
be equipped with a sufficient number of clearance
lamps on both sides and marker lamps upon the
extreme ends of said projecting load to clearly
mark the dimensions of such load: Provided,
that the state highway and public works commis-
sion shall have authority to designate any high-
ways upon the state system as light-traffic roads
when, in the opinion of the commission, such
roads are inadequate to carry and will be in-
juriously affected by the maximum load, size, and/
or width of trucks or busses using such roads as
herein provided for, and all such roads so desig-
nated shall be conspicuously posted as light-
traffic roads and the maximum load, size and/or
width authorized shall be displayed on proper
signs erected thereon. The operation of any ve-
hicle whose gross load, size -and/or width exceed
the maximum shown on such signs over the roads
thus posted shall constitute a misdemeanor: Pro-
vided further, that no standard concrete highway,
or other highway built of material of equivalent
durability, and not less than eighteen feet in
width, shall be designated as a light-traffic road:
Provided further, that the limitations placed on
any road shall not be less than eighty per cent
(80%) of the standard weight, unless there shall
be available an alternate improved route of not
more than twenty per cent (20%) increase in the
distance.
(f) The load upon any vehicle operated alone,
or the load upon the front vehicle of a combina-
tion of vehicles, shall not extend more than three
feet beyond the front wheels of such vehicle or
the front bumper of such vehicle, if it is equipped
with such a bumper.
(g) No vehicle shall be driven or moved on any
highway unless such vehicle is so constructed or
loaded as to prevent any of its load from dropping,
sifting, leaking or otherwise escaping therefrom,
except that sand may be dropped for the purpose
of securing traction, or water or other substance
may be sprinkled on a roadway in cleaning or
maintaining such roadway. (1937, c. 407, s. 80.)
§ 2621(267). Flag or light at end of load. —
Whenever the load on any vehicle shall extend
more than four feet beyond the rear of the bed
or body thereof, there shall be displayed at the
end of such load, in such position as to be clearly
visible at all times from the rear of such load, a
red flag not less than twelve inches both in length
and width, except that between one-half hour after
sunset and one-half hour before sunrise there shall
be displayed at the end of any such load a red
light plainly visible under normal atmospheric
conditions at least two hundred feet from the rear
of such vehicle. (1937, c. 407, s. 81.)
§ 2621(268). Weight of vehicles and load.— No
vehicle or combination of vehicles shall be moved
or operated on any highway or bridge when the
gross weight thereof exceeds the limits specified
below:
(a) When the wheel is equipped with high-
pressure pneumatic, solid rubber or cushion tire,
eight thousand pounds.
(b) When the wheel is equipped with low-pres-
sure pneumatic tire, nine thousand pounds.
(c) The gross weight on any one axle of the
vehicle when the wheels attached to said axle are
equipped with high-pressure solid rubber or cush-
ion tires, sixteen thousand pounds.
(d) When the wheels attached to said axle are
equipped with low-pressure pneumatic tires, eight-
een thousand pounds.
(e) For the purposes of this section an axle load
shall be defined as the total load on all wheels
whose centers are included within two parallel
transverse vertical planes not more than forty
inches apart.
(f) For the purposes of this section every
pneumatic tire designed for use and used when
inflated with air to less than one hundred pounds
pressure shall be deemed a low-pressure pneu-
matic tire, and every pneumatic tire inflated to
one hundred pounds pressure or more shall be
deemed a high-pressure pneumatic tire.
(g) No vehicle shall be operated on any high-
way the weight of which, resting on the surface
of such highway, exceeds six hundred pounds up-
on any inch of tire roller or other support.
(h) Subject to the foregoing limitations, the
gross weight of any vehicle having two axles shall
not exceed twenty thousand pounds.
(i) Subject to the foregoing limitations, the
gross weight of any vehicle or combination of ve-
hicles having three or more axles shall not exceed
forty thousand pounds. For the purpose of de-
termining gross weight, no axle shall be consid-
ered unless the wheels thereof are equipped with
adequate brakes. (1937, c. 407, s. 82.)
§ 2621(269). Peace officer may weigh vehicle
and require removal of excess load. — ■ The state
highway commission may, in their discretion, up-
on application in writing and good cause being
shown therefor, issue a special permit in writing
authorizing the applicant for seasonal operations
to operate or move a vehicle of a size or weight
exceeding a maximum specified in this article up-
on any highway under the jurisdiction and for
the maintenance of which the body granting the
permit is responsible. Every such permit shall
be carried in the vehicle to which it refers and
shall be open to inspection by any peace officer;
and it shall be a misdemeanor for any person to
violate any of the terms or conditions of such
special permit: Provided, the authorities in any
incorporated city or town may grant permits in
writing and for good cause shown, authorizing the
applicant to move a vehicle over the streets of
such city or town, the size or width exceeding the
maximum expressed in this article. (1937, c. 407,
s. 83.)
§ 2621(270). When authorities may restrict
right to use highways. — The state highway com-
mission or local authorities may prohibit the op-
eration of vehicles upon or impose restrictions as
to the weight thereof, for a total period not to ex-
ceed ninety days in any one calendar year, when
operated upon any highway under the jurisdiction
of and for the maintenance of which the body
adopting the ordinance is responsible, whenever
any said highway by reason of deterioration, rain,
§ 2621(271)
MOTOR VEHICLES
§ 2621(276)
snow or other climatic conditions will be damaged
unless the use of vehicles thereon is prohibited or
the permissible weights thereof reduced. The lo-
cal authority enacting any such ordinance shall
erect, or cause to be erected and maintained, signs
designing the provisions of the ordinance at each
end of that portion of any highway to which the
ordinance is applicable, and the ordinance shall
not be effective until or unless such signs are
erected and maintained. (1937, c. 407, s. 84.)
§ 2621(271). Restrictions as to tire equipment.
— (a) Every solid rubber tire on a vehicle moved
on any highway shall have rubber on its entire
traction surface at least one and a half inches
thick above the edge of the flange of the entire
periphery.
(b) No tire on a vehicle moved on a highway
shall have on its periphery any block, stud, flange,
cleat or spike or any other protuberance of any
material other than rubber which projects beyond
the tread of the traction surface of the tire, ex-
cept that it shall be permissible to use farm ma-
chinery with tires having) protuberances which
will not injure the highway and except, also, that it
shall be permissible to use tire chains of reason-
able proportions upon any vehicle when required
for safety because of snow, ice or other conditions
tending to cause a vehicle to slide or skid.
(c) The state highway commission or local au-
thorities in their respective jurisdictions may, in
their discretion, issue special permits authorizing
the operation upon a highway of traction engines
or tractors having movable tracks with transverse
corrugation upon the periphery of such movable
tracks or farm tractors or other farm machinery.
(1937, c. 407, s. 85.)
§ 2621(272). Trailers and towed vehicles. —
(a) No motor vehicle shall be driven upon any
highway drawing or having attached thereto more
than one trailer or semi-trailer.
(b) No trailer or semi-trailer shall be operated
over the highways of the state unless such trailer
or semi-trailer be firmly attached to the rear of
the motor vehicle drawing same, and unless so
equipped that it will not snake, but will travel in
the path of the wheels of the vehicle drawing such
trailer or semi-trailer, which equipment shall at
all times be kept in good condition. (1937, c. 407,
s. 86.)
§ 2621(273). Brakes. — (a) Every motor vehicle
when operated upon a highway shall be equipped
with brakes adequate to control the movement of
and to stop such vehicle or vehicles, and such
brakes shall be maintained in good working order
and shall conform to regulations provided in this
section.
(b) No person having control or charge of a
motor vehicle shall allow such vehicle to stand
on any highway unattended without first effectively
setting the hand brake thereon, stopping the mo-
tor and turning the front wheels into the curb
or side of the highway.
(c) On a dry, hard, approximately level stretch
of highway free from loose material, the service
(foot) brake shall be capable of stopping the mo-
tor vehicle at a speed of twenty miles per hour
within a distance of twenty-five feet with four
wheel brakes or forty-five feet with two wheel
brakes. The hand brake shall be capable of stop-
ping the vehicle under like conditions of this sec-
tion within a distance of not more than seventy-
five feet.
(d) Motor trucks and tractor-trucks with semi-
trailers attached shall be capable of stopping on a
dry, hard, approximately level highway free from
loose material at a speed of twenty miles per hour
within the following distances: thirty feet with
both hand and service brake applied simultaneously
and fifty feet when either is applied separately,
except that vehicles maintained and operated
permanently for the transportation of property
and which were registered in this or any other
state or district prior to August, nineteen hundred
and twenty-nine, shall be capable of stopping on
a dry, hard, approximately level highway free from
loose material at a speed of twenty miles per hour
within a distance of fifty feet with both hand and
service brake applied simultaneously, and within
a distance of seventy-five feet when either ap-
plied separately.
(e) Every semi-trailer, or trailer, or separate
vehicle, attached by a draw-bar or coupling to a
towing vehicle, and having a gross weight of two
tons, and all house trailers of one thousand pounds
gross weight or more, shall be equipped with
brakes controlled or operated by the driver of
the towing vehicle, which shall conform to the
specifications set forth in sub-section (d) of this
section and shall be of a type approved by the
commissioner. (1937, c. 407, s. 87.)
§ 2621(274). Horns and warning devices. — (a)
Every motor vehicle when operated upon a high-
way shall be equipped with a horn in good work-
ing order capable of emitting sound audible un-
der normal conditions from a distance of not less
than two hundred feet, and it shall be unlawful,
except as otherwise provided in this section, for
any vehicle to be equipped with or for any person
to use upon a vehicle any siren, compression or
spark plug whistle or for any person at any time
to use a horn otherwise than as a reasonable
warning or to make any unnecessary or unreason-
able loud or harsh sound by means of a horn or
other warning device. All such horns and warning
devices shall be maintained in good working order
and shall conform to regulation not inconsistent
with this section to be promulgated by the com-
missioner.
(b) Every police and fire department and fire
patrol vehicle and every ambulance used for emer-
gency calls shall be equipped with a bell, siren
or exhaust whistle of a type approved by the com-
missioner. (1937, c. 407, s. 88.)
(275). Mirrors. — No person shall drive
a motor vehicle on a highway which motor ve-
hicle is so constructed or loaded as to prevent the
driver from obtaining a view of the highway to
the rear by looking backward from the driver's
position, unless such vehicle is equipped with a
mirror so located as to reflect to the driver a view
of the highway for a distance of at least two hun-
dred feet to the rear of such vehicle, of a type to
be approved by the commissioner. (1937, c. 407,
s. 89.)
§ 2621(276). Windshields must be unobstructed.
— (a) It shall be unlawful for any person to drive
any vehicle upon a highway with any sign, poster
or other non-transparent material upon the front
windshield, side wings, side or rear window of
[ 78
§ 2621(277)
MOTOR VEHICLES
§ 2621(280)
such motor vehicle other than a certificate or other
paper required to be so displayed by law.
(b) Every permanent windshield on a motor
vehicle shall be equipped with a device for clean-
ing snow, rain, moisture or other matter from
the windshield directly in front of the operator,
which device shall be so constructed as to be con-
trolled or operated by the operator of the vehicle.
The device required by this sub-section shall be
of a type approved by the commissioner. (1937,
c. 407, s. 90.)
§ 2621(277). Prevention of noise, smoke, etc.,
muffler cut-outs regulated. — (a) No person shall
drive a motor vehicle on a highway unless such
motor vehicle is equipped with a muffler in good
working order and in constant operation to pre-
vent excessive or unusual noise, annoying smoke
and smoke screens.
(b) It shall be unlawful to use a "muffler cut-
out" on any motor vehicle upon a highway.
(1937, c. 407, s. 91.)
§ 2621(278). Required lighting equipment of
vehicles. — (a) When vehicles must be equipped:
Every vehicle upon a highway within this state
during the period from a half hour after sunset
to a half hour before sunrise, and at any other
time when there is not sufficient light to render
clearly discernible any person on the highway at
a distance of two hundred feet ahead, shall be
equipped with lighted front and rear lamps as in
this section respectively required for different
classes of vehicles, and subject to exemption with
reference to lights on parked vehicles as declared
in section 2621(283).
(b) Head Lamps on Motor Vehicles: Every
motor vehicle other than a motorcycle, road-roller,
road machinery, or farm tractor shall be equipped
with two head lamps, no more and no less, at the
front of and on opposite sides of the motor vehicle,
which head lamps shall comply with the require-
ments and limitations set forth in section 2621-
(280) or 2621(281).
(c) Head Lamps on Motorcycles: Every mo-
torcycle shall be equipped with at least one and
not more than two head lamps which shall com-
ply with the requirements and limitations set forth
in section 2621(280) or 2621(281).
(d) Rear Lamps: Every motor vehicle and
every trailer or semi-trailer which is being drawn
at the end of a train of vehicles shall carry at the
rear a lamp of a type which has been approved by
the commissioner and which exhibits a red light
plainly visible under normal atmospheric condi-
tions from a distance of five hundred feet to the
rear of such vehicle, and so constructed and placed
that the number plate carried on the rear of such
vehicle shall under like conditions be so illumi-
nated by a white light as to be read from a dis-
tance of fifty feet to the rear of such vehicle, and
every trailer or semi-trailer shall carry at the rear,
in addition to a rear lamp as above specified, a
red reflector of a type which has been approved by
the commissioner and which is so designed, lo-
cated as to a height and maintained as to be visible
for at least five hundred feet when opposed by a
motor vehicle displaying lawful undimmed head-
lights at night on an unlighted highway. Such
reflector shall be placed at the extreme end of the
load.
(e) Clearance Lamps: Every motor vehicle
having a width at any part in excess of eighty
inches shall carry two clearance lamps on the left
side of such vehicle, one located at the front and
displaying an amber light visible under normal
atmospheric conditions from a distance of five
hundred feet to the front of the vehicle, and the
other located at the rear of the vehicle and dis-
playing a red light visible under like conditions
from a distance of five hundred feet to the rear of
the vehicle.
(f) Lamps on Bicycles: Every bicycle shall be
equipped with a lighted lamp on the front there-
of, visible under normal atmospheric conditions
from a distance of at least three hundred feet in
front of such bicycle, and shall also be equipped
with a reflex mirror or lamp on the rear, exhibit-
ing a red light visible under like conditions from
a distance of at least two hundred feet to the rear
of such bicycle, when used at night.
(g) Lights on Other Vehicles: All vehicles
not heretofore in this section required to be
equipped with specified lighted lamps shall carry
on the left side one or more lighted lamps or lan-
terns projecting a white light, visible under nor-
mal atmospheric conditions from a distance of not
less than five hundred feet to the front of such ve-
hicle and visible under like conditions from a dis-
tance of not less than five hundred feet to the
rear of such vehicle, or in lieu of said lights shall
be equipped with reflectors of a type which is ap-
proved by the commissioner. (1937, c. 407, s. 92.)
§ 2621(279). Additional permissible light on
vehicle. — (a) Spot Lamps: Any motor vehicle
may be equipped with not to exceed two spot
lamps, except that a motorcycle shall not be
equipped with more than one spot lamp, and every
lighted spot lamp shall be so aimed and used upon
approaching another vehicle that no part of the
beam will be directed to the left of the center of
the highway nor more than one hundred feet
ahead of the vehicle. No spot lamps shall be used
on the rear of any vehicle.
(b) Auxiliary Driving Lamps: Any motor ve-
hicle may be equipped with not to exceed two
auxiliary driving lamps mounted on the front, and
every such auxiliary driving lamp or lamps shall
meet the requirements and limitations set forth in
section 2621(280).
(c) Restrictions on iLamps: Any device, other
than head lamps, spot lamps, or auxiliary driving
lamps, which projects a beam of light of an in-
tensity greater than twenty-five candle power,
shall be so directed that no part of the beam will
strike the level of the surface on which the ve-
hicle stands at a distance of more than fifty feet
from the vehicle. (1937, c. 407, s. 93.)
§ 2621(280). Requirements as to head lamps
and auxiliary driving lamps. — (a) The head lamps
of motor vehicles shall be so constructed, ar-
ranged, and adjusted that, except as provided in
sub-section (c) of this section, they will at all
times mentioned in section 2621(278), and under
normal atmospheric conditions and on a level
road, produce a driving light sufficient to render
clearly discernible a person two hundred feet
ahead, but shall not project a glaring or dazzling
light to persons in front of such head lamp.
(b) Head lamps shall be deemed to comply with
the foregoing provisions prohibiting glaring and
dazzling lights if none of the main bright portion
[79]
§ 2621(281)
MOTOR VEHICLES
§ 2621(285)
of the head lamp beams rises above a horizontal
plane passing through the lamp centers parallel
to the level road upon which the loaded vehicle
stands, and in no case higher than forty-two
inches, seventy-five feet ahead of the vehicle.
(c) Whenever a motor vehicle is being operated
upon a highway, or portion thereof, which is suf-
ficiently lighted to reveal a person on the highway
at a distance of two hundred feet ahead of the ve-
hicle, it shall be permissible to dim the head
lamps or to tilt the beams downward or to sub-
stitute therefor the light from an auxiliary driv-
ing lamp or pair of such lamps, subject to the
restrictions as to tilted beams and auxiliary driv-
ing lamps set forth in this sub-section.
(d) Whenever a motor vehicle meets another
vehicle on any highway it shall be permissible to
tilt the beams of the head lamps downward or to
substitute therefor the light from an auxiliary
driving lamp or pair of such lamps subject to the
requirement that the tilted head lamps or auxiliary
lamp or lamps shall give sufficient illumination
under normal atmospheric conditions and on a
level road to render clearly discernible a person
seventy-five feet ahead, but shall not project a
glaring or dazzling light to persons in front of the
vehicle: Provided, that at all times required in
section 2621(278) at least two lights shall be dis-
played on the front of and on opposite sides of
every motor vehicle other than a motorcycle, road-
roller, road machinery, or farm tractor.
(e) No city or town shall enact an ordinance in
conflict with this section. (1937, c. 407, s. 94.)
§ 2621(281). Acetylene lights. — Motor vehicles
may be equipped with two acetylene head lamps
of approximately equal candle power when
equipped with clear plane glass fronts, bright six-
inch spherical mirrors, and standard acetylene five-
eighths foot burners not more and not less and
which do not project a glaring or dazzling light
into the eyes of approaching drivers. (1937, c.
407, s. 95.)
§ 2621(282). Enforcement of provisions, —
(a) The commissioner is authorized to designate,
furnish instructions to and to supervise official
stations for adjusting head lamps and auxiliary
driving lamps to conform with the provisions of
section 2621(278). When head lamps and auxil-
iary driving lamps have been adjusted in con-
formity with the instructions issued by the com-
missioner, a certificate of adjustment shall be is-
sued to the driver of the motor vehicle on forms
issued in duplicate by the commissioner and
showing date of issue, registration number of the
motor vehicle, owner's name, make of vehicle and
official designation of the adjusting station.
(b) The driver of any motor vehicle equipped
with approved head lamps, auxiliary driving
lamps, rear lamps or signal lamps, who is arrested
upon a charge that such lamps are improperly
adjusted or are equipped with bulbs of a candle
power not approved for use therewith, shall be
allowed forty-eight hours within which to bring
such lamps into conformance with the require-
ments of this article. It shall be a defense to any
such charge that the person arrested produce in
court or submit to the prosecuting attorney a cer-
tificate from an official adjusting station showing
that within forty-eight hours after such arrest
such lamps have been made to conform with the
requirements of this article. (1937, c. 407, s. 96.)
§ 2621(283). Lights on parked vehicles. —
Whenever a vehicle is parked or stopped upon a
highway, whether attended or unattended during
the times mentioned in section 2621(278), there
shall be displayed upon such vehicle one or more
lamps projecting a white light visible under nor-
mal atmospheric conditions from a distance of
five hundred feet to the front of such vehicle, and
projecting a red light visible under like condi-
tions from a distance of five hundred feet to the
rear, except that local authorities may provide by
ordinance that no lights need be displayed upon
any such vehicle when parked in accordance with
local ordinances upon a highway where there is
sufficient light to reveal any person within a dis-
tance of two hundred feet upon such highway.
(1937, c. 407, s. 97.)
§ 2621(284). Safely glass.— (a) It shall be un-
lawful to operate knowingly, on any public high-
way or street in this state, any motor vehicle
which is registered in the state of North Carolina
and which shall have been manufactured or as-
sembled on or after January first, one thousand
nine hundred and thirty-six, unless such motor
vehicle be equipped with safety glass wherever
glass is used in doors, windows, windshields, wings
or partitions; or for a dealer to sell a motor ve-
hicle manufactured or assembled on or after Jan-
uary first, one thousand nine hundred and thirty-
six, for operation upon the said highways, or
streets unless it be so equipped. The provisions
of this article shall not apply to any motor ve-
hicle if such motor vehicle shall have been reg-
istered previously in another state by the owner-
while the owner was a bona fide resident of said
other state.
(b) The term "safety glass" as used in this
article shall be construed as meaning glass so
treated or combined with other materials as to
reduce, in comparison with ordinary sheet glass
or plate glass, the likelihood of injury to persons
by glass when the glass is cracked or broken.
(c) The revenue department shall approve and
maintain a list of the approved types of glass, con-
forming to the specifications and requirements for
safety glass as set forth in this article, and in ac-
cordance with standards recognized by the United
States bureau of standards, and shall not issue a
license for or relicense any motor vehicle subject
to the provisions of this article unless such motor
vehicle be equipped as herein provided with such
approved type of glass.
(d) The owner of any motor vehicle which is
operated knowingly or any dealer who sells a
motor vehicle in violation of the provisions of this
article shall be deemed guilty of a misdemeanor,
and upon conviction thereof shall be fined not
more than twenty-five dollars or be imprisoned
not more than thirty days, or both, in the discre-
tion of the court. (1937, c. 407, s. 98.)
§ 2621(285). Smoke screens.— (a) It shall be
unlawful for any person or persons to drive, op-
erate, equip or be in the possession of any auto-
mobile or other motor vehicle containing, or in
any manner provided with, a mechanical machine
or device designed, used or capable of being used
for the purpose of discharging, creating or caus-
ing, in any manner, to be discharged or emitted
[ 80
§ 2621(286)
MOTOR VEHICLES
§ 2621(290)
either from itself or from the automobile or other
motor vehicle to which attached, any unusual
amount of smoke, gas or other substance not nec-
essary to the actual propulsion, care and keep of
said vehicle, and the possession by any person or
persons of any such devise, whether the same is
attached to any such motor vehicle, or detached
therefrom, shall be prima facie evidence of the
guilt of such person or persons of a violation of
this section.
(b) Any person or persons violating the pro-
visions of this section shall be guilty of a felony,
and upon conviction shall be imprisoned in the
state's prison for a period of not less than one
year or not more than ten years, in the discretion
of the court. (1937, c. 407, s. 99.)
Part 10. Operation of Vehicles and Rules of
the Road
§ 2621(286). Persons under the influence of in-
toxicating liquor or narcotic drugs. — It shall be
unlawful and punishable, as provided in section
2621(325), for any person, whether licensed or
not, who is a habitual user of narcotic drugs or
any person who is under the influence of intox-
icating liquor or narcotic drugs, to drive any ve-
hicle upon the highways within this state. (1937,
c. 407, s. 101.)
§ 2621(287). Reckless driving. — Any person
who drives any vehicle upon a highway carelessly
and heedlessly in wilful or wanton disregard of
the rights or safety of others, or without due
caution and circumspection and at a speed or in
a manner so as to endanger or be likely to en-
danger any person or property, shall be guilty of
reckless driving, and upon conviction shall be pun-
ished as provided in section 2621(326). (1937, c.
407, s. 102.)
§ 2621(288). Speed restrictions. — (a) No per-
son shall drive a vehicle on a highway at a speed
greater than is reasonable and prudent under the
conditions then existing.
(b) Where no special hazard exists the follow-
ing speeds shall be lawful, but any speed in ex-
cess of said limits shall be prima facie evidence
that the speed is not reasonable or prudent and
that it is unlawful:
1. Twenty miles per hour in any business dis-
trict;
2. Twenty-five miles per hour in any residence
district;
3. Thirty-five miles per hour for motor vehicles
designed, equipped for, or engaged in transport-
ing property, and thirty miles per hour for such
vehicle to which a trailer is attached;
4. Forty-five miles per hour under other con-
ditions.
(c) The fact that the speed of a vehicle is lower
than the foregoing prima facie limits shall not re-
lieve the driver from the duty to decrease speed
when approaching and crossing an intersection,
when approaching and going around a curve,
when approaching a hill crest, when traveling up-
on any narrow or winding roadway, or when spe-
cial hazard exists with respect to pedestrians or
other traffic or by reason of weather or highway
conditions, and speed shall be decreased as may
be necessary to avoid colliding with any person,
vehicle, or other conveyance on or entering the
highway in compliance with legal requirements
N. C. Supp.— 6 [81
and the duty of all persons to use due care. It
shall be unlawful to violate any provision of this
section, and upon conviction shall be punished as
provided in section 2621(326).
(d) Whenever the state highway and public
works commission shall determine upon the basis
of an engineering and traffic investigation that any
prima facie speed hereinbefore set forth is greater
than is reasonable or safe under the conditions
found to exist at any intersection or other place or
upon any part of a highway, said commission shall
determine and declare a reasonable and safe prima
facie speed limit thereat which shall be effective
when appropriate signs giving notice thereof are
erected at such intersection or other place or part
of the highway.
(e) The foregoing provisions of this section
shall not be construed to relieve the plaintiff in
any civil action from the burden of proving neg-
ligence upon the part of the defendant as the
proximate cause of an accident.
(f) Whenever local authorities within their
respective jurisdictions determine, upon the basis
of an engineering and traffic investigation that
the prima facie speed permitted under this article
at any intersection is greater than is reasonable
or safe under the conditions found to exist at such
intersection, such local authority shall determine
and declare a reasonable and safe prima facie
speed limit thereat, which shall be effective when
appropriate signs giving notice thereof are
erected at such intersection or upon the approaches
thereto.
(g) Local authorities in their respective juris-
dictions may, in their discretion, authorize by
ordinance higher prima facie speeds than those
stated in sub-section (b) herein upon through
highways or upon highways or portions thereof
where there are no intersections or between widely
spaced intersections: Provided, signs are erected
giving notice of the authorized speed, but local au-
thorities shall not have authority to modify or
alter the basic rules set forth in sub-section (a)
herein, or in any event to authorize by ordinance
a speed in excess of forty-five miles per hour.
(h) No person shall drive a motor vehicle at
such a slow speed as to impede or block the nor-
mal and reasonable movement of traffic, except
when reduced speed is necessary for safe opera-
tion or in compliance with law. Police officers are
hereby authorized to enforce this provision by di-
rections to drivers, and in the event of apparent
wilful disobedience to this provision and refusal
to comply with direction of an officer in accord-
ance herewith, the continued slow operation by a
driver shall be a misdemeanor. (1937, c. 407, s.
103.)
§ 2621(289). Railroad warning signals must be
obeyed. — Whenever any person driving a vehicle
approaches a highway and interurban or steam
railway grade crossing, and a clearly visible and
positive signal gives warning of the immediate ap-
proach of a railway train or car, it shall be unlaw-
ful for the driver of the vehicle to fail to bring the
vehicle to a complete stop before traversing such
grade crossing. (1937, c. 407, s. 104.)
§ 2621(290). Vehicles must stop at certain
railway grade crossings. — The road governing
body (whether state or county) is hereby auth-
orized to designate grade crossings of steam or
§ 2621(291)
MOTOR VEHICLES
§ 2621(299)
interurban railways by state and county highways,
at which vehicles are required to stop, respectively,
and such railways are required to erect signs
thereat notifying drivers of vehicles upon any
such highway to come to a complete stop before
crossing such railway tracks, and whenever any
such crossing is so designated and sign-posted it
shall be unlawful for the driver of any vehicle to
fail to stop within fifty feet, but not closer than
ten feet, from such railway tracks before traversing
such crossing. That no failure so to stop, how-
ever, shall be considered contributory negligence
per se in any action against the railroad or inter-
urban company for injury to person or property;
but the facts relating to such failure to stop may
be considered with the other facts in the case in
determining whether the plaintiff was guilty of
contributory negligence: Provided, that all
school trucks and passenger busses be required to
come to a complete stop at all railroad crossings.
(1937, c. 407, s. 105.)
§ 2621(291). Special speed limitation on bridges.
— It shall be unlawful to drive any vehicle upon
any public bridge, causeway or viaduct at a speed
which is greater than the maximum speed which
can with safety to such structure be maintained
thereon, when such structure is sign-posted as
provided in this section.
The state highway commission, upon request
from any local authorities, shall, or upon its own
initiative may conduct an investigation of any
public bridge, causeway or viaduct, and if it shall
thereupon find that such structure cannot with
safety to itself withstand vehicles traveling at the
speed otherwise permissible under this article, the
commissioner shall determine and declare the
maximum speed of vehicles which such structure
can withstand, and shall cause or permit suitable
signs stating such maximum speed to be erected
and maintained at a distance of one hundred feet
beyond each end of such structure. The findings
and determination of the commission shall be con-
clusive evidence of the maximum speed which
can with safety to any such structure be main-
tained thereon. (1937, c. 407, s. 106.)
§ 2621(292). When speed limit not applicable.
— The speed limitations set forth in this article
shall not apply to vehicles when operated with
due regard for safety under the direction of the
police in the chase or apprehension of violators
of the law or of persons charged with or sus-
pected of any such violation, nor to fire depart-
ment or fire patrol vehicles when traveling in re-
sponse to a fire alarm, nor to public or private
ambulances when traveling in emergencies. This
exemption shall not, however, protect the driver
of any such vehicle from the consequence of a
reckless disregard of the safety of others. (1937,
c. 407, s. 107.)
§ 2621(293). Drive on right side of highway.
— Upon all highways of sufficient width, except
upon one-way streets, the driver of a vehicle shall
drive the same upon the right half of the highway,
and shall drive a slow-moving vehicle as closely
as possible to the right-hand edge or curb of such
highway, unless it is impracticable to travel on
such side of the highway and except when over-
taking and passing another vehicle subject to the
limitations applicable in overtaking and passing,
set forth in sections 2621(296) and 2621(297).
(1937, c. 407, s. 108.)
§ 2621(294). Keep to the right in crossing in-
tersections or railroads. — In crossing an intersec-
tion of highways or the intersection of a highway
by a railroad right-of-way, the driver of a vehicle
shall at all times cause such vehicle' to travel on
the right half of the highway unless such right
side is obstructed or impassable. (1937, c. 407, s.
109.)
§ 2621(295). Meeting of vehicles. — Drivers of
vehicles proceeding in opposite directions shall
pass each other to the right, each giving to the
other at least one-half of the main-traveled por-
tion of the roadway as nearly as possible. (1937,
c. 407, s. 110.)
§ 2621(296). Overtaking a vehicle. — (a) The
driver of any such vehicle overtaking another ve-
hicle proceeding in the same direction shall pass
at least two feet to the left thereof, and shall not
again drive to the right side of the highway until
safely clear of such overtaken vehicle.
(b) The driver of an overtaking motor vehicle
not within a business or residence district, as here-
in defined, shall give audible warning with his
horn or other warning device before passing or
attempting to pass a vehicle proceeding in the
same direction. (1937, c. 407, s. 111.)
§ 2621(297). Limitations on privilege of over-
taking and passing. — (a) The driver of a vehicle
shall not drive to the left side of the center of a
highway, in overtaking and passing another ve-
hicle proceeding in the same direction, unless such
left side is clearly visible and is free of oncoming
traffic for a sufficient distance ahead to permit
such overtaking and passing to be made in safety.
(b) The driver of a vehicle shall not overtake
and pass another vehicle proceeding in the same
direction upon the crest of a grade or upon a curve
in the highway where the driver's view along the
highway is obstructed within a distance of five
hundred feet.
(c) The driver of a vehicle shall not overtake
and pass any other vehicle proceeding in the same
direction at any steam or electric railway cross-
ing nor at any intersection of highway unless per-
mitted so to do by a traffic or police officer.
(d) The driver of a vehicle shall not drive to
the left side of the center line of a highway upon
the crest of a grade or upon a curve in the high-
way where such center line has been placed upon
such highway by the state highway commission,
and is visible. (1937, c. 407, s. 112.)
§ 2621(298). Driver to give way to overtaking
vehicle. — The driver of a vehicle upon a highway
about to be overtaken and passed by another ve-
hicle approaching from the rear, shall give way
to the right in favor of the overtaking vehicle on
suitable and audible signal being given by the
driver of the overtaking vehicle, and shall not in-
crease the speed of his vehicle until completely
passed by the overtaking vehicle. (1937, c. 407,
s. 113.)
§ 2621(299). Following too closely.— (a) The
driver of a motor vehicle shall not follow an-
other vehicle more closely than is reasonable and
prudent, with regard for the safety of others and
due regard to the speed of such vehicles and the
traffic upon and condition of the highway.
[82]
§ 2621(300)
MOTOR VEHICLES
§ 2621(305)
(b) The driver of any motor truck, when
traveling upon a highway outside of a business or
residence district, shall not follow another motor
truck within one hundred feet, but this shall not
be construed to prevent one motor truck over-
taking and passing another. (1937, c. 407, s. 114.)
§ 2621(300). Turning at intersection. — (a) Ex-
cept as otherwise provided in this section, the
driver of a vehicle intending to turn to the right
at an intersection shall approach such intersection
in the lane for traffic nearest to the right-hand side
of the highway,, and in turning shall keep as
closely as practicable to the right-hand curb or
edge of the highway, and when intending to turn
to the left shall approach such intersection in the
lane for the traffic to the right of and nearest to
the center of the highway, and in turning shall
pass beyond the center of the intersection, pass-
ing as closely as practicable to the right thereof
before turning such vehicle to the left.
(b) For the purpose of this section, the center
of the intersection shall mean the meeting point
of the medial lines of the highways intersecting
one another.
(c) Local authorities in their respective juris-
diction may modify the foregoing method of
turning at intersections by clearly indicating by
buttons, markers or other directions signs within
an intersection the course to be followed by ve-
hicles turning thereat, and it shall be unlawful for
any driver to fail to turn in a manner as so di-
rected when such direction signs are authorized
by local authorities. (1937, c. 407, s. 115.)
§ 2621(301). Signals on starting, stopping or
turning. — (a) The driver of any vehicle upon a
highway before starting, stopping or turning from
a direct line shall first see that such movement
can be made in safety, and if any pedestrian may
be affected by such movement shall give a clearly
audible signal by sounding the horn, and when-
ever the operation of any other vehicle may be
affected by such movement, shall give a signal as
required in this section, plainly visible to the driver
of such other vehicle, of the intention to make such
movement.
(b) The signal herein required shall be given by
means of the hand and arm in the manner herein
specified, "or by any approved mechanical or
electrical signal device, except that when a ve-
hicle is so constructed or loaded as to prevent the
hand and arm signal from being visible, both to
the front and rear, the signal shall be given by a
device of a type which has been approved by the
department."
Whenever the signal is given the driver shall
indicate his intention to start, stop, or turn by ex-
tending the hand and arm from and beyond the
left side of the vehicle as hereinafter set forth.
Left turn — hand and arm horizontal, forefinger
pointing.
Right turn — hand and arm pointed upward.
Stop — hand and arm pointed downward.
All signals to be given from left side of vehicle
during last fifty feet traveled. (1937, c. 407, s. 116.)
§ 2621(302). Right-of-way.— (a) When two ve-
hicles approach or enter an intersection and/or
junction at approximately the same time, the driver
of the vehicle on the left shall yield the right-of-
way to the vehicle on the right except as otherwise
provided in section 2621(303).
(b) The driver of a vehicle approaching, but not
having entered an intersection and/or junction,
shall yield the right-of-way to a vehicle within
such intersection and turning therein to> the left
across the line of travel of such first mentioned
vehicle: Provided, the driver of the vehicle turn-
ing left has given a plainly visible signal of inten-
tion to turn as required in section 2621(301).
(c) The driver of any vehicle upon a highway
within a business or residence district shall yield
the right-of-way to a pedestrian crossing such
highway within any clearly marked cross-walk, or
any regular pedestrian crossing included in the
prolongation of the lateral boundary lines of the
adjacent sidewalk at the end of a block, except
at intersections where the movement of traffic is
being regulated by traffic officers or traffic direc-
tion devices. (1937, c. 407, s. 117.)
§ 2621(303). Exceptions to the right-of-way rule.
— -(a) The driver of a vehicle entering a public
highway from a private road or drive shall yield
the right-of-way to all vehicles approaching on
such public highway.
(b) The driver of a vehicle upon a highway
shall yield the right-of-way to police and fire de-
partment vehicles and public and private ambu-
lances when the latter are operated upon official
business and the drivers thereof sound audible
signal by bell, siren or exhaust whistle. This pro-
vision shall not operate to relieve the driver of a
police or fire department vehicle or public or pri-
vate ambulance from the duty to drive with due
regard for the safety of all persons using the high-
way, nor shall it protect the driver of any such
vehicle from the consequence of any arbitrary ex-
ercise of such right-of-way. (1937, c. 407, s. 118.)
§ 2621(304). What to do on approach of police
or fire department vehicles. — (a) Upon the ap-
proach of any police or fire department vehicle
giving audible signal by bell, siren or exhaust
whistle, the driver of every other vehicle shall im-
mediately drive the same to a position as near as
possible and parallel to the right-hand edge or
curb, clear of any intersection of highways, and
shall stop and remain in such position unless other-
wise directed by a police or traffic officer until
the police or fire department vehicle shall have
passed.
(b) It shall be unlawful for the driver of any
vehicle other than one on official business to fol-
low any fire apparatus traveling in response to a
fire alarm closer than one block or to drive into
or park such vehicle within one block where fire
apparatus has stopped in answer to a fire alarm.
(1937, c. 407, s. 119.)
§ 2621(305). Vehicles must stop at certain
through highways. — (a) The state highway com-
mission, with reference to state highways and local
authorities, with reference to highways under their
jurisdiction, are hereby authorized to designate
main traveled or through highways by erecting at
the entrance thereto from intersecting highways
signs notifying drivers of vehicles to come to full
stop before entering or crossing such designated
highway, and whenever any such signs have been
so erected it shall be unlawful for the driver of
83
§ 2621(306)
MOTOR VEHICLES
§ 2621(312)
any vehicle to fail to stop in obedience thereto.
That no failure so to stop, however, shall be con-
sidered contributory negligence per se in any action
at law for injury to person or property; but the
facts relating to such failure to stop may be con-
sidered with the other facts in the case in deter-
mining whether the plaintiff in such action was
guilty of contributory negligence.
(b) No person operating any motor vehicle upon
any path, private or public road shall cross or at-
tempt to cross, enter upon, or attempt to enter
upon any hard surface or improved highway inter-
secting the said path or road without first coming
to a full stop: Provided, that this shall not apply
to any road entering upon or crossing such hard
surfaced or improved highway unless the road gov-
erning authority (whether state or county) con-
trolling such highway shall erect on such road, at
a point one hundred or more feet from the point
of entrance into said highway, a signboard not less
than four feet from ground on the right side of the
road, twenty-four inches by twenty-four inches
outside measurements, which shall be painted of
yellow background with word "Stop" in black let-
ters eight inches high, to insure warning of the
proximity of the crossing and notice to stop said
motor vehicle.
(c) This article shall not interfere with the regu-
lations prescribed by towns and cities.
(d) No failure to so stop shall be considered
contributory negligence per se in any action for
injury to person or property; but the facts relating
to such failure to stop may be considered with
other facts in determining negligence.
(e) Any person violating the provisions of this
article shall be guilty of a misdemeanor, and upon
conviction shall be fined not more than ten dollars
or imprisoned not more than ten days. (1937, c.
407, s. 120.)
§ 2621(306). Passing street cars.— (a) The driver
of a vehicle shall not overtake and pass upon the
left any street car proceeding in the same direc-
tion, whether actually in motion or temporarily at
rest, when a travelable portion of the highway
exists to the right of such street car.
(b) The driver of a vehicle overtaking any rail-
way, interurban or street car stopped or about to
stop for the purpose of receiving or discharging
any passenger, shall bring such vehicle to a full
stop not closer than ten feet to the nearest exit
of such street car and remain standing until any
such passenger has boarded such car or reached
the adjacent sidewalk, except that where a safety
zone has been established, then a vehicle may be
driven past any such railway, interurban or street
car at a speed not greater than ten miles per hour
and with due caution for the safety of pedestrians.
(1937, c. 407, s. 121.)
§ 2621(307). Driving through safety zone pro-
hibited.— The driver of a vehicle shall not at any
time drive through or over a safety zone as defined
in part one of this article. (1937, c. 407, s. 122.)
§ 2621(308). Stopping on highway.— (a) No per-
son shall park or leave standing any vehicle,
whether attended or unattended, upon the paved
or improved or main traveled portion of any high-
way, outside of a business or residence district,
when it is practicable to park or leave such ve-
hicle standing off of the paved or improved or
main traveled portion of such highway: Provided,
in no event shall any person park or leave stand-
ing any vehicle, whether attended or unattended,
upon any highway unless a clear and unobstructed
width of not less than fifteen feet upon the main
traveled portion of said highway opposite such
standing vehicle shall be left for free passage of
other vehicles thereon, nor unless a clear view of
such vehicle may be obtained from a distance of
two hundred feet in both directions upon such
highway: Provided further, that in no event shall
any person park or leave standing any vehicle,
whether attended or unattended, upon any high-
way bridge: Provided further, that in the event
that a truck, trailer or semi-trailer be disabled up-
on the highway that the driver of such vehicle
shall display, not less than two hundred feet in
the front or rear of such vehicle, a warning signal;
that during the hours from sunup to sundown a
red flag shall be displayed, and after sundown red
flares or lanterns. These warning signals shall
be displayed as long as such vehicle is disabled
upon the highways.
(b) Whenever any peace officer shall find a ve-
hicle standing upon a highway in violation of the
provisions of this section, he is hereby authorized
to move such vehicle or require the driver or per-
son in charge of such vehicle to move such vehicle
to a position permitted under this section.
(c) The provisions of this section shall not ap-
ply to the driver of any vehicle which is disabled
while on the paved or improved or main traveled
portion of a highway in such manner and to such
extent that it is impossible to avoid stopping and
temporarily leaving such vehicle in such position.
(1937, c. 407, s. 123.)
§ 2621(309). Parking in front of fire hydrant,
fire station or private driveway. — No person shall
park a vehicle or permit it to stand, whether at-
tended or unattended, upon a highway in front of
a private driveway or within fifteen feet in either
direction of a fire hydrant or the entrance to a fire
station, nor within twenty-five feet from the inter-
section of curb lines or if none, then within fifteen
feet of the intersection of property lines at an in-
tersection of highways. (1937, c. 407, s. 124.)
§ 2621(310). Motor vehicle left unattended;
brakes to be set and engine stopped. — No person
having control or charge of a motor vehicle shall
allow such vehicle to stand on any highway unat-
tended without first effectively setting the brakes
thereon and stopping the motor of said vehicle,
and, when standing upon any grade, without turn-
ing the front wheels of such vehicle to the curb or
side of the highway. (1937, c. 407, s. 125.)
§ 2621(311). Driving on mountain highways. —
The driver of a motor vehicle traversing defiles,
canyons or mountain highways shall hold such
motor vehicle under control and as near the right-
hand side of the highway as reasonably possible,
and upon approaching any curve where the view
is obstructed within a distance of two hundred feet
along the highway, shall give audible warning with
a horn or other warning device. (1937, c. 407, s.
126.)
§ 2621(312). Coasting prohibited.— The driver of
a motor vehicle when traveling upon a down grade
[ 84
§ 2621(313)
MOTOR VEHICLES
§ 2621(315)
upon any highway shall not coast with the gears
of such vehicle in neutral. (1937, c. 407, s. 127.)
§ 2621(313). Duty to stop in event of accident.
— (a) The driver of any vehicle involved in an ac-
cident resulting in injury or death to any person
shall immediately stop such vehicle at the scene
of such accident, and any person violating this
provision shall upon conviction be punished by a
fine or imprisonment in the discretion of the court.
(b) The driver of any vehicle involved in an ac-
cident resulting in damage to property shall im-
mediately stop such vehicle at the scene of such
accident, and any person violating this provision
shall upon conviction be punished as provided in
section 2621(327).
(c) The driver of any vehicle involved in any
accident resulting in injury or death to any per-
son or damage to property shall also give his
name, address, operator's or chauffeur's license
number and the registration number of his vehicle
to the person struck or the driver or occupants of
any vehicle collided with, and shall render to any
person injured in such accident reasonable assist-
ance, including the carrying of such person to a
physician or surgeon for medical or surgical treat-
ment if it is apparent that such treatment is neces-
sary or is requested by the injured person, and it
shall be unlawful for any person to violate this
provision, and shall be punishable as provided in
section 2621(327).
(d) The driver of any vehicle involved in any
accident resulting in injuries or death to any per-
son, or property damage to an apparent extent of
ten dollars ($10.00) or more, shall, within twenty-
four hours, file or cause to be filed a report of such
accident with the department, except that when
such accident occurs within a city such report shall
be made within twenty-four hours to the police
department of such city. Every police department
shall forward on the fifth day of each month every
such report received during the previous calendar
month, or a copy thereof, so filed with it to the
main office of the department. All accident reports
shall be made on forms approved by the depart-
ment. With respect to any such accident involv-
ing a collision between any common carrier and
another vehicle, such common carrier shall also
make a report of the accident to the department,
such report to be filed on or before the tenth day
of the month following the accident.
(e) Where a person required to report an acci-
dent by the preceding subsection is physically in-
capable of making such report, and there is an-
other occupant in the vehicle at the time of the
accident, such occupant shall make the report.
The department may require drivers, or com-
mon carriers involved in accidents, to file supple-
mental reports, and may require witnesses of acci-
dents to render reports to it upon forms furnished
by it whenever the original report is insufficient in
the opinion of the department.
All accident reports together with all supple-
mental reports above mentioned shall be without
prejudice and shall be for the use of the depart-
ment, and shall not be used in any manner what-
soever as evidence, or for any other purpose in
any trial, civil or criminal, arising out of such ac-
cident: Provided, however, that all reports made
by state, city or county police shall be subject to
inspection by members of the general public at all
reasonable times. The department shall be re-
quired to furnish, upon demand of any court, a
properly executed certificate stating that a specific
accident report has or has not been filed with the
department solely to prove a compliance with this
section.
(f) The department shall prepare and shall upon
request supply to police, coroners, sheriffs and
other suitable agencies, or individuals, forms for
accident reports calling for sufficiently detailed in-
formation to disclose with reference to a highway
accident the cause, conditions then existing, and
the persons and vehicles involved.
The department shall receive accident reports
required to be made by this section and may tabu-
late and analyze such reports and publish annually,
or at more frequent intervals, statistical informa-
tion based thereon as to the number, cause and
location of highway accidents.
Based upon its findings after such analysis, the
department may conduct further necessary detailed
research to more fully determine the cause and
control of highway accidents. It may further
conduct experimental field tests within areas of the
state from time to time to prove the practicability
of various ideas advanced in traffic control and ac-
cident prevention.
(g) Every person holding the office of coroner
in this state shall, on the tenth day of each month,
report to the department the death of any person
during the preceding calendar month as the result
of an accident involving a motor vehicle and the
circumstances of such accident. (1937, c. 407, s.
128.)
§ 2621(314). Vehicles transporting explosives. —
Any person operating any vehicle transporting any
explosive as a cargo or part of a cargo upon a
highway shall at all times comply with the provi-
sions of this section.
(a) Said vehicle shall be marked or placarded on
each side and the rear with the word "Explosives"
in letters not less than eight inches high, or there
shall be displayed on the rear of such vehicle a red
flag not less than twenty-four inches square
marked with the word "Danger" in white letters
six inches high.
(b) Every said vehicle shall be equipped with
not less than two fire extinguishers, filled and
ready for immediate use, and placed at a conven-
ient point on the vehicle so used.
(c) The commissioner is hereby authorized and
directed to promulgate such additional regulations
governing the transportation of explosives and
other dangerous articles by vehicles upon the high-
ways as he shall deem advisable for the protection
of the public. (1937, c. 407, s. 129.)
§ 2621(315). Drivers of state, county and city
vehicles subject to provisions of this article. — The
provisions of this article applicable to> the drivers
of vehicles upon the highways shall apply to the
drivers of all vehicles owned or operated by this
state or any political sub-divisions thereof, or of
any city, town or district, except persons, teams,
motor vehicles and other equipment while actually
engaged in work on the surface of the road, but
not when traveling to or from such work. (1937,
c. 407, s. 130.)
§ 2621(316)
MOTOR VEHICLES
§ 2621(334)
§ 2621(316). Powers of local authorities. — Local
authorities, except as expressly authorized by sec-
tion 2621(288) (g) and section 2621(305), shall
have no power or authority to alter any speed limi-
tations declared in this article or to enact or en-
force any rule or regulations contrary to the pro-
visions of this article, except that local authorities
shall have power to provide by ordinances for the
regulation of traffic by means of traffic or sema-
phores or other signaling devices on any portion
of the highway where traffic is heavy or continuous
and may prohibit other than one-way traffic upon
certain highways, and may regulate the use of the
highways by processions or assemblages and ex-
cept that local authorities shall have the power to
regulate the speed of vehicles on highways in pub-
lic parks, but signs shall be erected giving notices
of such special limits and regulations. (1937, c.
407, s. 131.)
§ 2621(317). This article not to interfere with
rights of owners of real property with reference
thereto. — Nothing in this article shall be construed
to prevent the owner of real property used by the
public for purposes of vehicular travel by permis-
sion of the owner, and not as matter of right from
prohibiting such use nor from requiring other or
different or additional conditions than those speci-
fied in this article or otherwise regulating such use
as may seem best to such owner. (1937, c. 407, s.
132.)
Part 11. Pedestrians' Rights and Duties
§ 2621(318). Pedestrians subject to traffic con-
trol signals. — Pedestrians shall be subject to traffic
control signals at intersections as heretofore de-
clared in this article, but at all other places pedes-
trians shall be accorded the privileges and shall be
subject to the restrictions stated in this article.
(1937, c. 407, s. 133.)
§ 2621(319). Pedestrians' right-of-way at cross-
walks.— (a) Where traffic control signals are not
in place or in operation the driver of a vehicle shall
yield the right-of-way, slowing down or stopping
if need be to so yield, to a pedestrian crossing the
roadway within any marked cross-walk or within
any unmarked cross-walk at an intersection, except
as otherwise provided in this article.
(b) Whenever any vehicle is stopped at a
marked cross-walk or at any unmarked cross-walk
at an intersection to permit a pedestrian to cross
the roadway, the driver of any other vehicle ap-
proaching from the rear shall not overtake and
pass such stopped vehicle. (1937, c. 407, s. 134.)
§ 2621(320). Crossing at other than cross-walks.
— (a) Every pedestrian crossing a roadway at any
point other than within a marked cross-walk or
within an unmarked cross-walk at an intersection
shall yield the right-of-way to all vehicles upon
the roadway.
(b) Any pedestrian crossing a roadway at a
point where a pedestrian tunnel or overhead pedes-
trian crossing has been provided shall yield the
right-of-way to all vehicles upon the roadway.
(c) Between adjacent intersections at which
traffic control signals are in operation pedestrians
shall not cross at any place except in a marked
cross-walk.
(d) It shall be unlawful for pedestrians to walk
along the traveled portion of any highway except
on the extreme left-hand side thereof, and such
pedestrians shall yield the right-of-way to ap-
proaching traffic.
(e) Notwithstanding the provisions of this sec-
tion, every driver of a vehicle shall exercise due
care to avoid colliding with any pedestrian upon
any roadway, and shall give warning by sounding
the horn when necessary, and shall exercise proper
precaution upon observing any child or any con-
fused or incapacitated person upon a roadway.
(1937, c. 407, s. 135.)
§ 2621(321). Pedestrians soliciting rides. — No
person shall stand in the travel portion of the high-
way for the purpose of soliciting a ride from the
driver of any private vehicle. (1937, c. 407, s. 136.)
Part 12. Penalties
§ 2621(322). Penalty for misdemeanor. — (a) It
shall be unlawful and constitute a misdemeanor for
any person to violate any of the provisions of this
article unless such violation is by this article or
other law of this state declared to be a felony.
(b) Unless another penalty is in this article or
by the laws of this state provided, every person
convicted of a misdemeanor for the violation of
any provision of this article shall be punished by
a fine of not more than one hundred dollars
($100.00) or by imprisonment in the county or
municipal jail for not more than sixty days, or by
both such fine and imprisonment: Provided, that
upon conviction for the following offenses — operat-
ing motor vehicles without displaying registration
number plates issued therefor; permitting or mak-
ing any unlawful use of registration number plates,
or permitting the use of registration by a person
not entitled thereto, and violation of sections
2621(266)-2621(268), 262l(27l)-262l(283), 2621-
(289)-262l(29l), 262l(293)-262l(295), 2621(297)-
2621(304), 2621(306)-2621(310), 2621(312) — the
punishment therefor shall be a fine not to exceed
fifty dollars ($50.00) and not less than ten dollars
($10.00), or imprisonment not to exceed thirty
days for each offense. (1937, c. 407, s. 137.)
§ 2621(323). Penalty for felony. — Any person
who shall be convicted of a violation of any of the
provisions of this article herein or by the laws of
this state declared to constitute a felony shall, un-
less a different penalty is prescribed herein or by
the laws of this state, be punished by imprison-
ment in the state prison for a term not less than
one year nor more than five years, or by a fine of
not less than five hundred dollars nor more than
five thousand dollars, or by both fine and impris-
onment. (1937, c. 407, s. 138.)
§ 2621(324). Penalty for bad check. — When any
person, firm, or corporation shall tender any un-
certified check for payment of any tax or fees
found to be due by him under the provisions of
this article, and such check shall have been re-
turned to the commissioner unpaid on account of
insufficient funds of the drawer of said check in the
bank upon which same is drawn, then in that event
an additional tax shall be imposed equal to ten per
cent of the fees due, and in no case shall the in-
crease of said tax, because of said failure, be less
than one dollar ($1.00), and the said additional tax
shall not be waived or diminished by the commis-
sioner. (1937, c. 407, s. 139.)
[86]
§ 2621(325)
MOTOR VEHICLES
§ 2621(332)
§ 2621(325). Penalty for driving while under the
influence of intoxicating liquor or narcotic drugs.
— Every person who is convicted of violation of
section 2621(286), relating to habitual users of
narcotic drugs or driving while under the influence
of intoxicating liquor or narcotic drugs, shall be
punished by imprisonment in the county or mu-
nicipal jail for not less than thirty days nor more
than one year, or by fine of not less than fifty dol-
lars ($50.00) nor more than one thousand dollars
($1,000.00), or by both such fine and imprison-
ment. On a second or subsequent conviction for
the same offense he shall be punished by impris-
onment for not more than two years or fined not
more than one thousand dollars ($1,000.00), or by
both fine and imprisonment, in the discretion of
the court. (1937, c. 407, s. 140.)
§ 2621(326). Penalty for reckless driving. —
Every person convicted of reckless driving under
section 2621(287) shall be punished by imprison-
ment in the county or municipal jail for a period
of not more than six months, or by fine of not
more than five hundred dollars ($500.00), or by
both such fine and imprisonment, and on a second
or subsequent conviction of such offense shall be
punished by imprisonment for not more than one
year or by a fine of not less than fifty dollars nor
more than one thousand dollars ($1,000.00), or by
both such fine and imprisonment. (1937, c. 407,
s. 141.)
§ 2621(327). Penalty for failure to stop in event
of accident involving injury or death to a person. —
Every person convicted of wilfully violating sec-
tion 2621(313), relative to the duties to stop in the
event of accidents, except as otherwise provided,
involving injury or death to a person, shall be pun-
ished by imprisonment for not less than one nor
more than five years, or in the state prison for not
less than one nor more than five years, or by fine
of not less than five hundred dollars or by both
such fine and imprisonment. The commissioner
shall revoke the operator's or chauffeur's license of
the person so convicted. In no case shall the court
have power to suspend judgment upon payment of
costs. (1937, c. 407, s. 142.)
§ 2621(328). Duties and powers of law enforce-
ment officers. — It shall be the duty of the law en-
forcement officers of the state and of each county,
city, or other municipality to see that the pro-
visions of this article are enforced within their re-
spective jurisdictions, and any such officer shall
have the power to arrest on sight or upon warrant
any person found violating the provisions of this
article. Such officers within their respective juris-
dictions shall have the power to stop any motor
vehicle upon the highways of the state for the pur-
pose of determining whether the same is being
operated in violation of any of the provisions of
this article. (1937, c. 407, s. 143.)
§ 2621(329). Unconstitutionality or invalidity.—
If any clause, sentence, paragraph, or part of this
article shall for any reason be adjudged by any
court of competent jurisdiction to be invalid, such
judgment shall not affect, impair, or invalidate the
remainder of this article, 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 article
or any part thereof. (1937, c. 407, s. 144.)
§ 2621(330). Effective date. — This article shall
be in full force and effect from and after its ratifi-
cation, except that existing tax levies shall con-
tinue in effect until January first, one thousand nine
hundred and thirty-eight, and on and after that
date the modifications of existing rates provided
for in part seven of this article shall supersede such
existing rates. (1937, c. 407, s. 146.)
Art. 16. Sales of Used Motor Vehicles Brought
into State
§ 2621(331). Dealers required to register vehicles
with department of revenue and furnish bond. —
Every dealer in used, or second-hand, motor ve-
hicles who is a non-resident of the state of North
Carolina or who does not have a permanent place
of business in this State, and every person, firm or
corporation who bring any used, or second-hand,
motor vehicles into the state of North Carolina for
the purpose of sale or re-sale, except as a trade-in
on a new motor vehicle or another used car, shall,
before offering the same for sale within ten days
from the date of entry of said motor vehicle into
the limits of the state of North Carolina, register
such motor vehicle with the department of revenue
on a form to be provided by said department and
under such rules and regulations as may be pro-
mulgated by said department from time to time,
and shall, before said used or second-hand car is
offered for sale, or sold, execute a bond with two
good sufficient sureties, or with a surety company
duly authorized to do business in the state of
North Carolina as a surety or sureties thereon,
payable to the state of North Carolina, for the use
and benefit of the purchaser and his vendees, con-
ditioned to pay all loss, damages and expenses that
may be sustained by the purchaser, and/or vendees,
that may be occasioned by reason of the failure
of the title of such vendor or by reason of any
fraudulent misrepresentations or breaches of war-
ranty as to freedom from liens, quality, condition,
use or value of the motor vehicle being sold. Said
bond shall be in the full amount of the sale price
of each of such motor vehicles, but in no event to
exceed the sum of one thousand ($1,000.00) dollars
for any one motor vehicle, and shall be filed with
the department of revenue of the state of North
Carolina by the vendor and be approved by it as
to amount, form and as to the solvency of the
surety or sureties, and for which service by said
department, in registering said vehicle, the vendor
shall pay the regular registration fee charged for
the registration of motor vehicles and in addition
thereto a fee of ten ($10.00) dollars for each bond
so filed and approved, which sums shall be paid
into the state treasury to the credit of the general
fund and expended as provided by law. (1937, c.
62, s. 1.)
§ 2621(332). Titles to all used cars to be fur-
nished upon delivery. — Every person, firm or cor-
poration, upon the sale and delivery of any used
or second-hand motor vehicle, shall, at the time of
the delivery of said vehicle, deliver to the vendee
a certificate of title issued to the vendor by the
North Carolina state department of revenue, duly
[87]
§ 2621(333)
MUNICIPAL CORPORATIONS
§ 2720
endorsed in order that the vendee may obtain a
title therefor. (1937, c. 62, s. 2.)
§ 2621(333). Non-compliance defeats right of ac-
tion; violations a misdemeanor. — No action, nor
right of action to recover any such motor vehicle,
nor any part of the selling price thereof shall be
maintained in the courts of this state by any such
dealer or vendor, his successors or assigns, in any
case wherein such vendor or dealer shall have
failed to comply with the terms and provisions of
this article, and, in addition thereto, such vendor
or dealer, upon conviction for the violation of any
of the provisions of this article, shall be deemed
guilty of a misdemeanor and shall be punished by
s fine of not less than one hundred ($100.00) dol-
lars and not more than five hundred ($500.00) dol-
lars, or by imprisonment for not less than thirty
days, or more than six months, or by both such
fine and imprisonment. (1937, c. 62, s. 3.)
§ 2621(334). "Dealers" and "vendors," defined.
— The terms "dealers" and "vendors" herein used
shall be construed to include every individual, part-
nership, corporation or trust whose business, in
whole or in part, is that of selling used motor ve-
hicles not taken in exchange for vehicles sold in
this state, and likewise shall be construed to include
every agent, representative, or consignee of any
such dealer as denned above as fully as if same
had been herein expressly set out, except that no
agent, representative or consignee of such dealer
or vendor shall be required to make and file the
said bond if such dealer or vendor for whom such
agent, representative or consignee acts fully com-
plies in each instance with the provisions of this
article. (1937, c. 62, s. 4.)
CHAPTER 56
MUNICIPAL CORPORATIONS
SUBCHAPTER I. REGULATIONS
INDEPENDENT OF ACT
OF 1917
Art. 1. General Powers
§ 2623. Corporate powers.
As to reconveyance of property donated for specific pur-
pose, see § 1291(b).
Art. 2. Municipal Officers
Part. 3. Constable and Policeman
§ 2642. Policemen execute criminal process.
A policeman has the authority under general statute to
deputize a citizen to aid him in serving a warrant for breach
of the peace, a policeman being given the same authority,
within the town limits, in making arrests as a sheriff.
Tomlinson v. Norwood, 208 N. C. 716, 182 S. E. 659. See
§§ 4379 and 4547.
Art. 5. Municipal Taxation
§ 2677. Commissioners may levy taxes.
Tax on Firm Outside City. —
In accord with original. See State v. Bridgers, 211 N.
C. 235, 189 S. F- 869.
Art. 9. Local Improvements
§ 2707. What petition shall contain.
Applied in High Point v. Clark, 211 N. C. 607, 191 S. F-
318.
§ 2710. Assessments levied.
Where Charges for Water and Gas Connections Did Not
Constitute a Preferred Claim. — Charges for water and gas
connections, incurred during the lifetime of a life tenant
and unpaid at his death, do not constitute a preferred
claim against his estate as taxes assessed on the estate
prior to his death, since in no event would such charges
stand upon a higher plane than assessments for permanent
improvements. Rigsbee v. Brogden, 209 N. C. 510, 184
S. F- 24.
§ 2711. Amount of assessment ascertained.
Applied in High Point v. Clark, 211 N. C. 607, 191 S.
318.
§ 2713. Hearing and confirmation; assessment
lien.
Priority of Lien. —
In accord with paragraph in original. See Winston-
Salem v. Powell Paving Co., 7 F. Supp. 424.
The lien is an incumbrance within the meaning of the
warranty clause against incumbrances. Winston- Salem v.
Powell Paving Co., 7 F. Supp. 424, 427, citing Coble v.
Dick, 194 N. C. 732, 140 S. F. 745.
Intention to Give Ad Valorem Tax Liens Preference over
Other Liens. — A comparison of § 7987, and this section in-
dicates the intention of the Legislature to give the ad
valorem tax liens preference over any other liens, whether
the same shall have attached prior or subsequent to the
1st day of June of the taxable year. Winston- Salem v.
Powell Paving Co., 7 F. Supp. 424, 427.
And both sections should be construed in such way as
to effectuate the intention of the Legislature. Id.
Thus the lien for street assessment, while superior to
all other liens, whether existent or otherwise, does not de-
feat the right of the municipality or county to collect the
annual ad valorem general taxes accruing on the same
property. Id.
§ 2714. Appeal to the superior court.
Cited in High Point v. Clark, 211 N. C. 607, 191 S. E-
318.
§ 2717(b). Extension of time for payment of
special assessments. — At any time or times prior
to July the first, one thousand nine hundred and
thirty-eight, the governing body of any city or
town may adopt a resolution granting an exten-
sion of the time for the payment of any instal-
ment or instalments of any special assessment, in-
cluding accrued interest thereon and costs ac-
crued in any action to foreclose under the lien
thereon, by arranging such instalment or instal-
ments, interest and costs into a new series of ten
equal instalments so that one of said instalments
shall fall due on the first Monday in October
after the expiration of one year after adoption of
the aforesaid resolution and one of said instal-
ments on the first Monday in October of each
year thereafter.
(1937, c. 172.)
Editor's Note.— The 1937 amendment substituted "thirty-
eight" for "thirty- six" formerly appearing near the beginning
of the first sentence. The rest of the section, not being
affected by the amendment, is not set out.
For amendatory act applicable only to town of Carrboro,
see Public Laws 1937, c. 195.
§ 2718. Assessments in case of tenant for life
or years.
Since street and sidewalk assessments constitute a lien
against the property not collectible out of other proper-
ties belonging to the owner, and since by this section a
life tenant is not liable for the whole assessment, being
entitled to have it proportioned under § 2720, upon the death
of a life tenant such assessments made prior to his death
do not constitute a preference against his estate under the
third class of priority. Rigsbee v. Brogden, 209 N. C. 510,
184 S. F- 24. See § 93 and note.
§ 2720. Lien of party making payment.
See § 2718 of this Supplement and note thereto.
[88]
§ 2744(a)
MUNICIPAL CORPORATIONS
§ 2959
Art. 11. Regulation of Buildings
§ 2744(a). County electrical inspectors. — The
county commissioners of each county may in
their discretion designate and appoint an elec-
trical inspector whose duty it shall be to inspect
the installation of all wiring and other electrical
installations in buildings located in any town of
one thousand population or less and/or those
buildings located outside of the corporate limits
of all cities and towns and not otherwise in-
cluded in this article, and to issue a certificate of
inspection where such installations fully meet the
requirements for such installations as set forth
in this article, or such additional requirements as
the board of county commissioners may prescribe.
Nothing contained in this article shall be con-
strued as prohibiting said board of county com-
missioners designating as county inspector any
person who also has or may be designated as
electrical inspector in any city or town located
within said county, or from prohibiting two or
more counties from designating the same inspec-
tor to perform the duties herein mentioned for
such two or more counties. The county commis-
sioners shall also fix the fees to be charged by
such county inspector, which fees shall be paid
by the owner of the properties so inspected.
(1937, c. 57.)
Art. 11(A). Recreation Systems and
Playgrounds
§ 2776(b). Power to dedicate property already
owned; power to acquire property.
Municipal corporations are given authority by this sec-
tion and §§ 2795 and 2787(12), to establish parks and play-
grounds necessary to the maintenance of the health of their
inhabitants, and an ordinance of a populous industrial city
which provides for the issuance of bonds to establish and
maintain parks and playgrounds for the children of the
city was held a valid exercise of its police power under
legislative authority for the promotion of the public health,
safety, and morals. Atkins v. Durham, 210 N. C. 295, 186
S. E. 330.
Art. 11(C). Zoning Regulations
§ 2776(x). Board of adjustment.
Where Action of Beard Does Not Constitute Res Judicata
upon Second Application. — The approval by the Board of
Adjustment of a denial of a permit to erect a filling sta-
tion on certain land does not constitute res judicata upon a
second application made therefor three years after the first
application upon substantial change of the traffic conditions.
In re Application of Broughton Estate, 210 N. C. 62, 185
S. E. 434.
SUBCHAPTER II. MUNICIPAL CORPO-
RATION ACT OF 1917
Art. 15. Powers of Municipal Corporations
Part 1. General Powers Enumerated
§ 2787. Corporate powers.
Reference. — See note to § 2776(b) of this Supplement.
Ordinance Requiring Taxicab Operators to Secure Lia-
bility Insurance Does Not Violate Constitution. — An ordi-
nance requiring operators of taxicabs or other motor ve-
hicles for hire to secure liability insurance or enter into
bond with personal or corporate surety is a valid exercise
oi the police power and expressly authorized by this sec-
tion and does not violate the Fourteenth Amendment of the
Federal Constitution, the operation of vehicles for gain be-
ing a special and extraordinary use of the city's streets,
which it has the power to condition by ordinance uniform
upon all coming within the classification. Watkins v. Ise-
ley, 209 N. C. 256, 183 S'. E- 365, citing Packard v. Ban-
ton, 264 U. S. 140, 68 E. Ed. 596, 44 S. Ct. 257.
Part 2. Power to Acquire Property
§ 2791. Acquisition by purchase.
Section Authorizes Paving of Dedicated Streets Outside
City Limits. — This section gives a city the right to acquire
streets "within or outside the city," and to "exercise the
management and control of the streets," etc. The lan-
guage is broad enough to give a city authority to pave
streets outside the city that were dedicated to the city,
there being no necessity to purchase same. High Point v.
Clark, 211 N. C. 607, 612, 191 S. E. 318.
Part. 5. Protection of Public Health
§ 2795. Ordinances for protection of health;
contracts for medical treatment and hospitaliza-
tion of poor.
See note to § 2776(b) of this Supplement.
In accordance with the provisions of the last paragraph
of this section the commissioners of a city proposed to
enter into a contract with a public hospital providing for
the payment by the city of the sum of $10,000 a year for
thirty years, in consideration of the agreement of the hos-
pital to give medical care and hospitalization to the indigent
sick and afflicted poor of the city, and to levy a tax to raise
revenue sufficient to meet such payments. It was held that
the proposed tax was for a necessary municipal expense, and
the approval of the qualified voters of the city was not a
prerequisite to the validity of the tax. Martin v. Raleigh,
208 N. C. 369, 180 S. E. 786.
Part 8. Water and Lights
§ 2808. Fix and enforce rates.
See note to § 2959 of this Supplement.
Art. 16. Exercise of Powers by
Governing Body
Part 5. Control of Public Utilities
§ 2835(a). Profit on certain sales of electricity
by one municipality to another. — Where any mu-
nicipality within the state purchases electric cur-
rent from a private utility and resells said cur-
rent to any other municipality or municipalities
over the lines which are owned by the municipal-
ity or municipalities purchasing from the first
municipality, the municipality which purchases
said current from a private utility shall not charge
the municipality or municipalities purchasing
from it more than ten per cent (10%) over and
above what is paid by the first municipality to the
private utility. (1937, c. 444.)
SUBCHAPTER III. MUNICIPAL
FINANCE ACT
Art. 26. Permanent Financing
§ 2943. Sworn statement of indebtedness.
Reference.— See note to § 2959 of this Supplement.
§ 2947. Ordinance requiring popular vote.
Where Vote of Qualified Electors Not Necessary. — Where
an ordinance for the issuance of bonds to establish and main-
tain playgrounds for children contained a provision which
afforded the prescribed time for filing a petition under this
section, and no petition was filed during such time, it was
held that irrespective of such provision a vote of the quali-
fied electors was not necessary, the bonds being a necessary
expense within the meaning of Art. VII, § 7 of the Con-
stitution. Atkins v. Durham, 210 N. C. 295, 186 S. E- 330.
§ 2959. Taxes levied for payment of bonds.
Net Revenue Derived from Revenue Producing Enterprise
Should Be Applied to Bonds. — It is clear from a reading
of this section that the Legislature intended that, where
bonds were issued to enable a municipality to carry on a
revenue producing enterprise, the net revenue derived from
such enterprise should be applied to the payment of the
interest and principal of such bonds. George v. Asheville,
80 F. (2d) 50, 53, 103 A. I,. R. 568.
After iPaying Operation and Maintenance Expenses.—
89
§ 2959(6)
NEGOTIABLE INSTRUMENTS
§ 3026
Where a waterworks system produces revenue, it is a rev-
enue-producing enterprise; and, if net revenues are derived
from it, after paying all expenses of operating, managing,
maintaining, repairing, enlarging, and extending such sys-
tem, this section requires that they be applied to the pay-
ment of the principal and interest due on the bonds issued
"for such enterprise." George v. Asheville, 80 F. (2d) 50,
54, 103 A. L. R. 568.
The requirement that net revenues after paying the ex-
penses of operation shall be applied on bonds does not mean
that the discretionary control of waterworks vested in the
city authorities by § 2808 is in any wise limited. Id.
Without Regard as to Time Bonds Are Issued.— There is
nothing in this section which limits the application of the
net revenue of a revenue-producing enterprise to bonds
thereafter issued and there is no reason why the section
should be so interpreted. The language of the section pro-
vides in the broadest possible terms that the net revenue
from such an enterprise shall be applied on the principal
and interest of bonds "issued for such enterprise," without
limitation as to when such bonds may have been issued.
George v. Asheville, 80 F. (2d) 50, 55, 103 A. L. R. 568.
Where Bonds Share Alike. — As this section clearly in-
tended that such net revenues should be applied on the
principal and interest of all bonds which were issued for the
system, where the sewer system is an integral and essential
part of the waterworks system and with it constitutes one
revenue-producing enterprise, we think that sewer bonds
should share along with waterworks bonds in the net rev-
enues of the waterworks system. George v. Asheville, 80
F. (2d) 50, 54, 103 A. L. R. 568.
A revenue- producing enterprise is manifestly one which
produces revenue, not necessarily one which produces profit
or net revenue. George v. Asheville, 80 F. (2d) 50, 54, 103
A. Iy. R. 568.
Injunction to Restrain Diversion of Gross Revenues. — As
net revenues can be effectively diverted in advance of their
ascertainment by diversion of gross revenues, injunction
should be granted to restrain the diversion of gross reve-
nues, if it appears that net revenues are in danger of be-
ing diverted in this way. However, care should be taken
so as not to trench upon the discretion of the municipal
authorities in the management of the water and sewer sys-
tem. George v. Asheville, 80 F. (2d) 50, 57, 103 A. I,. R.
568.
If net revenue remains after payment of operating ex-
penses such funds are thereafter held in trust to be applied
as the statute directs, and any threatened diversion or mis-
application should be enjoined. Id.
Bonds Not a Charge upon the Taxing Power of City. — As
bonds in aid of the ordinary revenue- producing enterprises of
a city, i. e., enterprises for furnishing water, gas, electric
light, or power, were exempted from the debt limitation of
§ 2943, this shows that it was thought that, while the credit
of the municipality would be pledged for bonds of this char-
acter, they would not be a charge upon the taxing power
of the city but would be taken care of by the revenues of
the enterprises for which they were issued. George v. Ashe-
ville, 80 F. (2d) 50, 54, 103 A. I,. R. 568.
Art. 26A. Validation of Bonds
§ 2959(6). 1937 bond validating act.— This sec-
tion may be cited as the "1937 Bond Validating
Act."
The term "municipality" wherever used or re-
ferred to in this section shall mean any city,
town, county, or sanitary district in this state.
All bonds heretofore issued for the purpose of
financing or aiding in the financing of any work,
undertaking, or project by any municipality to
which any loan or grant has heretofore been made
by the United States of America, through the
federal emergency administrator of public works,
for the purpose of financing or aiding in the fi-
nancing of such work, undertaking, or project,
including all proceedings for the authorization and
issuance of such bonds and the sale, execution,
and delivery thereof, are hereby validated, ratified,
approved, and confirmed, notwithstanding any
want of power of such municipality or governing
body or commission, or officer thereof, of author-
ity to issue such bonds, or sell, execute, or deliver
the same, and notwithstanding any defects or
irregularities in such proceedings or in such sale,
execution, or delivery; and such bonds are and
shall be binding, legal, and enforceable obliga-
tions of such municipality: Provided, this sec-
tion shall only have the effect of validating those
bonds (1) which have at the time of the ratifi-
cation of this section been sold to the United
States of America or some of its agencies; or (2)
sold with the approval of the local government
commission. This section snail not apply to
pending litigation. (1937, c. 428.)
Art. 27A. Emergency Municipal Bond Act
§ 2965(11). Application and construction of arti-
cle.
Editor's Note.— Section 13 of the Acts of 1935, c. 426, pro-
vides that, "Nothing in this act shall be construed as re-
pealing any general, special, or local law in conflict with
this act."
This section is merely precautionary in that it ex-
presses the legislative intent that all local laws shall re-
main in full force and effect except in cases where bonds
are issued under this act to secure a loan from the Fed-
eral Government for a necessary expense. Burt v. Biscoe,
209 N. C. 70, 74, 183 S. E- 1.
Vote Not Necessary to Issuance of Bonds for Sewerage
Purposes. — As the intent of this article is to expedite the
issuance of bonds for projects constituting necessary munic-
ipal or county expenses for which the Federal Government
offers a loan or grant by dispensing with a vote, notwith-
standing the restrictions of any general, special, or private
act, it was held that a vote was not necessary to the issu-
ance of bonds for sewerage purposes by a municipality re-
stricted by special statute. Burt v. Biscoe, 209 N. C. 70,
183 S. F- 1.
Art. 30. Municipal Fiscal Agency Act
§ 2969 (k). Payment of fees to bank.
Editor's Note. — For act applicable only to Buncombe county,
see Public Laws 1937, c. 320.
SUBCHAPTER IV. FISCAL CONTROL ACT
AND COLLECTION OF TAXES
Art. 32, Fiscal Control Act
§ 2969 (o). Terms in county fiscal control act
made applicable to cities and towns.
Applied in Standard Inv. Co. v. Snow Hill, 78 F. (2d) 33.
CHAPTER 58
NEGOTIABLE INSTRUMENTS
Art. 1. General Provisions
§ 2976. Definitions.
Cited in Pickett v. Fulford, 211 N. C. 160, 189 S. F- 488.
Art. 2. Form and Interpretation
§ 3003. Effect of forged signature.
Where the clerk of the superior court executed a check
to the person named in a court order, and the brother of
the payee of the check, by fraudulently representing him-
self to be the payee, took the check to plaintiff and en-
dorsed it in plaintiff's presence by forging the name of his
brother, whereupon plaintiff endorsed the check by writ-
ing "O. K." and signing his name, plaintiff is not entitled
to recover the amount of the check from the clerk indi-
vidually or in his official capacity, plaintiff's negligence in
endorsing the check without attempting to ascertain the
identity of the person representing himself to be the payee
barring any right to recover. Keel v. Wynne, 210 N. C.
426, 187 S. F. 571.
Art. 4. Negotiation
§ 3026. Presumption as to time of indorsement.
Cited in Mansfield v. Wade, 208 N. C. 790, 182 S. F. 475.
[90]
§ 3030
OFFICERS AND PUBLIC OFFICERS
§ 3208
§ 3030. Effect of transfer without indorsement.
Where Assignee Is Not Holder in Due Course of a Col-
lateral Note.— Where a note is assigned as collateral se-
curity for another note, and the assignee holds the collat-
eral note without procuring the endorsement of the as-
signor until after the collateral note is past due, the as-
signee is not a holder in due course of the collateral note,
and takes same subject to all equities existing in favor of
the maker of the collateral note as against the payee who
assigned same. Hare v. Hare, 208 N. C. 442, 181 S. F-
246.
Art. 5. Rights of Holder
§ 3033. What constitutes holder in due course.
Town as Holder in Due Course of Bonds.— Where a bank
pledged certain bonds to secure the deposit of a town, the
town acquired the bonds for value as security for a pre-
existing indebtedness which is sufficient to constitute it a
holder in due course within the meaning of this section.
Standard Inv. Co. v. Snow Hill, 78 F. (2d) 33.
Holder of Note Obtaining Same by Indorsement after
Maturity Is Not Holder in Due Course.— Mansfield v. Wade,
208 N. C. 790, 182 S. F- 475.
§ 3037. What constitutes notice of defect.
Applied in Standard Inv. Co. v. Snow Hill, 78 F. (2d) 33.
§ 3038. Rights of holder in due course.
Stated in Standard Inv. Co. v. Snow Hill, 78 F. (2d) 33.
Cited in Mansfield v. Wade, 208 N. C. 790, 182 S. E. 475.
§ 3039. When subject to original defenses.
Holder of Note after Maturity Takes Subject to Equities.
—Where the holder of a negotiable note obtained same by
endorsement after maturity, he takes same subject to eq-
uities, and the maker of the note may establish as against
such holder that the note was paid before it was endorsed
to and acquired by the holder. Mansfield v. Wade, 208 N.
C. 790, 182 S. F- 475.
Purchaser after Maturity Takes Free of Agreement of
Third Person to Pay Note. — A purchaser for value after
maturity takes the note free from an agreement by a third
person to pay the note when such third person was never a
purchaser or holder of the note and the purchaser has no
knowledge of such agreement between the maker and the
third person. Pickett v. Fulford, 211 N. C. 160, 189 S. F-
488.
§ 3040. Who deemed holder in due course.
The burden rests upon the holder, when the title of a
prior holder is shown to be defective, to show lack of
knowledge of the defect. Standard Inv. Co. v. Snow Hill,
78 F. (2d) 33, 37.
Cited in Mansfield v. Wade, 208 N. C. 790, 182 S. F- 475;
Pickett v. Fulford, 211 N. C. 160, 189 S. F. 488.
Art. 8. Notice of Dishonor
§ 3092. Who affected by waiver.
Endorser Is a "Party" to the Note. — An extension of
time for payment of a note will not discharge an endorser
when the note provides on its face that extension of time
for payment is waived by all parties to the note, the en-
dorser being a "party" to the note. Vannoy v. Stafford,
209 N. C. 748, 184 S. F- 482.
which may be owned or held for collection by
such corporation: Provided, it shall be unlawful
for any notary public to take the acknowledg-
ment of an instrument executed by or to a bank
or other corporation of which he is a stockholder,
director, officer, or employee, where such notary
is individually a party to such instrument, or to
protest any negotiable instrument owned or held
for collection by such corporation, where such no-
tary is individually a party to such instrument.
(1937, c. 183.)
CHAPTER 60
NUISANCES AGAINST PUBLIC MORALS
§ 3180. What are nuisances under this chapter.
Cited, in dissenting opinion, in Newman v. Watkins, 208
N. C. 675, 182 S. F. 453.
CHAPTER 59
NOTARIES
§ 3175(a). Notaries public, who are stockhol-
ders, etc., permitted to take acknowledgments, ad-
minister oaths, etc. — It shall be lawful for any
notary public who is a stockholder, director, of-
ficer or employee of a bank or other corporation
to take the acknowledgment of any party to any
written instrument executed to or by such cor-
poration, or to administer an oath to any other
stockholder, director, officer, employee or agent
of such corporation, or to protest for non-accept-
ance or non-payment bills of exchange, drafts,
checks, notes and other negotiable instruments
[91
CHAPTER 62
OFFICERS AND PUBLIC OFFICERS
Art. 1. General Provisions
§ 3202(1). Receiving compensation of subordi-
nates for appointment or retention; removal. —
Any official or employee of this state or any po-
litical subdivision thereof, in whose office or under
whose supervision are employed one or more
subordinate officials or employees who shall, di-
rectly or indirectly, receive or demand, for him-
self or another, any part of the compensation of
any such subordinate, as the price of appointment
or retention of such .subordinate, shall be guilty
of a misdemeanor: Provided, that this section
shall not apply in cases in which an official or em-
ployee is given an allowance for the conduct of
his office from which he is to compensate
himself and his subordinates in such manner as he
sees fit. Any person convicted of violating this
section, in addition to the criminal penalties, shall
be subject to removal from office. The procedure
for removal shall be the same as that provided
for removal of certain local officials from office
by sections three thousand two hundred and
eight and three thousand two hundred and twelve,
inclusive, of the Consolidated Statutes of North
Carolina. (1937, c. 32, ss. 1, 2.)
§ 3207(a). Identification cards for field agents
or deputies of state departments. — Every field
agent or deputy of the various state departments
who is authorized to collect money, audit books,
inspect premises of individual or business firms
and/or any other field work pertaining to the de-
partment which he represents, shall be furnished
with an identification card signed by the head of
the department represented by him, certifying
that the said field agent or deputy has authority to
represent the department, and such identification
card shall carry a photographic likeness of said
representative. (1937, c. 236.)
Art. 2. Removal of Unfit Officers
§ 3208. Officers subject to removal; for what of-
fenses.
As to removal for receiving compensation of subordi-
nates, see § 3202(1).
3213
PARTNERSHIP
§ 3262
CHAPTER 63
PARTITION
Art. 1. Partition of Real Property
§ 3213. Partition is a special proceeding.
Tenant in Common Entitled to Partition.— Ordinarily, a
tenant in common in realty or personalty is entitled to par-
tition of the property. Chadwick v. Blades, 210 N. C. 609,
188 S. E. 198.
§ 3215. Petition by cotenant.
I. IN GENERAL.
Tenants in common may make a valid agreement, either
at the time of the creation of the tenancy or afterwards,
whereby the right to partition is modified or limited, pro-
vided the waiver of the right to partition is not for an
unreasonable length of time. Chadwick v. Blades, 210 N.
C. 609, 188 S. E. 198. See also, 15 N. C. Law Rev., No,
3, p. 279.
§ 3219. Commissioners appointed.
Confirmation and Approval by Two Appraisers Held Er-
ror.— Testator's children selected three appraisers in accord-
ance with the will, but prior to final report one of the ap-
praisers died, whereupon the court ordered the two sur-
viving appraisers to complete the appraisal and file re-
port, which report was later approved by the court. It
was held that under the terms of the will and under this
section, it is necessary that three appraisers act in the
matter, and the superior court should have appointed a
third appraiser, and the confirmation and approval of the
report based upon the findings of but two appraisers is
reversible error. Sharpe v. Sharpe, 210 N. C. 92, 185 S.
E. 634.
§ 3225. Partition where shareowners unknown
or title disputed; allotment of several shares of
two or more tenants as one parcel in common. —
If two or more tenants in common, or joint
tenants, by petition or answer, request it, the com-
missioners may, by order of the court, allot their
several shares to them in common, as one parcel,
provided such division shall not be injurious or
detrimental to any co-tenant or joint tenant. (Rev.,
ss. 2491, 2511; Code, s. 1894; 1868-9, c. 122, s. 3;
1887, c. 284, ss. 2, 4; 1937, c. 98.)
Editor's Note. — The 1937 amendment added the above
provision at the end of this section. The rest of the sec-
tion, not being affected by the amendment, is not set out.
While the primary purpose of the partition proceeding is
to allot to each of the former cotenants his share of the
property in severalty, this amendment by no means militates
against such purpose but makes it possible for some of the
former cotenants, who find it economically desirable, to have
their several shares allotted to them as one parcel so that
they may again hold as cotenants that parcel of land. 15
N. C. Law Rev., No. 4, p. 355.
§ 3228. Report of commissioners; contents; fil-
ing.
Under this section, two commissioners can make the re-
port, but the parties whose rights are to be effected have
the right to have three disinterested parties appointed un-
der the will or statute, so that the three can consider the
questions involved. Sharpe v. Sharpe, 210 N. C. 92, 98,
185 S. E- 634.
Art. 2. Partition Sales of Real Property
§ 3233. Sale in lieu of partition.
Under this section the burden is on the party seeking sale
for partition to show necessity therefor, and where sale for
partition is decreed by the court without hearing evidence
or finding facts to show the right to sell, the cause will be
remanded. Wolfe v. Galloway, 211 N. C. 361, 190 S. E- 213.
§ 3243. Report of sale; filing; confirmation
and impeachment. — Such officer or person shali
file his report of sale, giving full particulars there-
of, within ten days after the sale, in the office of
the clerk of the superior court, and if no excep-
tion thereto is filed within ten days, the same
shall be confirmed. Any party, after the con-
firmation, shall be allowed to impeach the pro-
ceedings and decrees for mistake, fraud or collu-
sion, by petition in the cause: Provided, inno-
cent purchasers for full value and without notice
shall not be affected thereby. (Rev., s. 2513;
Code, s. 1906; 1899, c. 161; 1868-9, c. 122, s. 15;
1937, c. 71.)
Editor's Note. — The 1937 amendment reduces the time for
filing exceptions from twenty to ten days. The proceed-
ings are thus speeded up, and it is now possible for the
partition sale to be confirmed within 20 days after it is
held instead of 30 days as formerly required. 15 N. C. Law
Rev., No. 4, p. 355.
Art. 4. Partition of Personal Property
§ 3253. Personal property may be partitioned;
commissioners appointed.
Quoted in Chadwick v. Blades, 210 N. C. 609, 188 S. E-
198.
§ 3255. Sale of personal property on partition;
report of officer.
Cited in Chadwick v. Blades, 210 N. C. 609, 188 S. E- 198.
CHAPTER 64
PARTNERSHIP
Art. 1. Limited Partnership
§ 3258. Purposes for which formed. — Limited
partnership for the transaction of any mercan-
tile, manufacturing or mechanical business within
the state may be formed by two or more persons,
upon the terms and with the rights and powers
and subject to the conditions and liabilities in this
chapter; but its provisions shall not be construed
to authorize any such partnership for the con-
ducting of a banking or insurance business, other
than writing or soliciting insurance. A general
partnership may be converted into a limited part-
nership in the manner and for the purposes pro-
vided in this article. (Rev., s. 2521; Code, s. 3088;
1860-1, c. 28; 1937, c. 308, s. 1.)
Editor's Note. — The 1937 amendment added the provision
as to conversion of general into limited partnership.
§ 3259. General and special partners; liability.
— Such partnerships may consist of one or more
persons, who are general partners, and are jointly
and severally responsible as partners are now by
law, and of one or more persons, who contribute
in actual cash payments a specific sum, or prop-
erty at its fair value, as capital to the common
stock, who are called special partners, and who
are not liable for the debts of the partnership be-
yond the funds so contributed to the capital.
(Rev., s. 2522; Code, s. 3089; 1860-1, c. 28, s. 2;
1937, c. 308, s. 2.)
Editor's Note. — The words "or property at its fair value,"
were inserted by the 1937 amendment.
§ 3262, Affidavit as to cash payment. — At the
time the certificate is ordered to be registered an
affidavit of one or more of the general partners
shall be made before the officer taking such ac-
knowledgment, stating that the sums specified in
the certificate to have been contributed by each
of the special partners to the common stock have
been actually in good faith paid in cash or prop-
erty at its fair value, and the affidavit so made
shall be registered with the original certificate.
(Rev., s. 2525; Code, s. 3093; 1860-1, c. 28, s. 6;
1937, c. 308, s. 3.)
Editor's Note.— The words "or property at its fair value,"
were inserted in this section by the 1937 amendment.
[92]
§ 3309
PROBATE AND REGISTRATION
§ 3311(1)
CHAPTER 65
PROBATE AND REGISTRATION
Art. 1. Probate
§ 3303. Proof of attested writing. —
Provided, that no instrument required or per-
mitted by law to be registered shall be proved,
probated or ordered to be registered upon the
oath and examination of a subscribing witness
who is also the grantee named in said instrument,
and the registration of any instrument which has
been proven and admitted to probate upon the
oath and examination of a subscribing witness
who is the grantee in said instrument shall be
void: Provided further, that nothing herein shall
invalidate the registration of any instrument reg-
istered prior to the ninth day of April, A.D.
one thousand nine hundred and thirty-five. (Re^.,
s. 997; 1899, c. 235, s. 12; 1935, c. 168; 1937, c. 7.)
Editor's Note.— As the 1937 amendment made changes
only in the provisos of this section, the first sentence is not
set out here. The amendment omitted the prohibition of
registration of an instrument if the witness attesting its
execution is the agent or servant of the grantee. This is
proper since the interest, if any, of such a witness would
seem to be rather remote. It also omitted a former proviso
applying the section to agricultural liens. This omission
is quite logical since the statute is applicable to all instru-
ments "required or permitted by law to be registered," and
agricultural liens fall within such a category. 15 N. C.
Law Rev., No. 4, p. 337.
Art. 2. Registration
§ 3308. Probate and registration sufficient with-
out livery.
Evidence Supporting Judgment for Recovery of Land.—
Evidence showing good record title in plaintiff, without any
record evidence of title in defendant, held to support judg-
ment for plaintiff for recovery of land. Knowles v. Wal-
lace, 210 N. C. 603, 188 S. E. 195.
§ 3309. Conveyances, contracts to convey, and
leases of land.
I. IN GENERAL.
Quoted in Tucker v. Almond, 209 N. C. 333, 183 S. E-
407.
V. NOTICE.
No Notice Will Supply Want of Registration.—
In accord with original. See Knowles v. Wallace, 210
N. C. 603, 188 S. E. 195.
§ 3311. Deeds of trust and mortgages, real and
personal.
I. IN GENERAL.
The courts of this state have adopted a strict policy in
regard to notice and registration in order to encourage im-
mediate and proper recording. 15 N. C. Law Rev., No. 2,
p. 166.
This section is a substitute for possession by the mort-
gagee. If the mortgagee as such takes possession of the
mortgaged property,, it renders registration unnecessary.
Possession, in such circumstances, will render the mortgage
as good as it would be if registered. Coggin v. Hartford
Acci., etc., Co., 9 F. Supp. 785, 788, citing Cowan v. Dale,
189 N. C. 684, 128 S. E- 155.
If possession is to be substituted for registration under
this section, it seems that the possession should be by vir-
tue of the mortgage. Coggin v. Hartford Acci., etc., Co.,
9 F. Supp. 785, 788.
In the instant case, the record shows very clearly that
possession of the property was not taken in the capacity of
mortgagee. The defendant obtained possession by promising
the contractor a preference when letting the contract for
completion. The motive of the bankrupt, to the knowledge
of surety, was to perpetuate a fraud on his creditors. The
transaction is void and cannot supply the place of regis-
tration. Id.
Valid Mortgage Not Constituting a Preference.— The mort-
gage was executed for a valuable consideration years be-
fore the filing of petition in bankruptcy, through inad-
vertence and without fraud, it was not recorded until within
four months from the filing of petition, but no lien having
attached, and no proof of insolvency of bankrupt at time of
recording mortgage, the mortgage is valid and does not con-
stitute a preference. In re Finley, 6 F. Supp. 105, 106.
No Inference of Fraud Where Contracts of Road Con-
tractor Were Not Recorded.— In Hartford Acci., etc., Co.
v. Coggin, 78 F. (2d) 471, 476, it was held that no infer-
ence of fraud could fairly be drawn from the failure to re-
cord application contracts of road contractor containing
chattel mortgage provisions, especially in view of the pub-
licity and general knowledge that attends public works.
II. REGISTRATION AS BETWEEN PARTIES.
Between the Parties — Valid without Registration.—
In accord with original. See In re Finley, 6 F. Supp. 105.
IV. RIGHTS OF PERSONS PROTECTED.
General Creditors Not Protected.—
In accord with original. See In re Finley, 6 F. Supp. 105,
106.
Where Right of Surety Is Superior to That of Trustee in
Bankruptcy. — Where no creditor has secured a lien upon the
property of a road contractor prior to bankruptcy, the trans-
fer of possession of the property to the surety-mortgagee
before bankruptcy had the same effect under the North
Carolina law as if the mortgage had been recorded. Cowan
v. Dale, 189 N. C. 684, 128 S. E. 155. It follows that the
right of the surety to the property transferred is superior
to the claim of the trustee in bankruptcy. Hartford Acci.,
etc., Co. v. Coggin, 78 F. (2d) 471, 476.
Applications of Road Contractor Not Valid as against
Trustee without Registration. — Applications of road contractor
in so far as they profess to convey property, are chattel
mortgages and are not valid as against the trustee with-
out registration. Coggin v. Hartford Acci., etc., Co., 9
F. Supp. 785, 787, citing Commercial Cas. Ins. Co. v. Wil-
liams, 37 F. (2d) 326.
Chattel Mortgage Good against Purchasers and Creditors
Only from Registration.— Under this section a chattel mort-
gage is good against bona fide purchasers for value and
against creditors only from registration. A general cred-
itor must yield to the lien of the mortgage from the mo-
ment of its registration, unless the lien can be successfully
assailed as a fraudulent conveyance. Coggin v. Hartford
Acci., etc., Co., 9 F. S'upp. 785, 787.
Before a creditor can defeat the lien of the mortgage
properly registered he must acquire a prior lien by way of
judgment, as against land, and by levying an execution
against personal property. Id.
Application contracts containing a conveyance whereby a
road contractor as of the date thereof assigns, transfers,
and conveys to the surety, all his right, title, and interest
in the tools, plant, equipment, and materials that he may
then or thereafter have upon the work, authorizing and
empowering the surety and its agents to enter upon and
take possession thereof, are chattel mortgages within the
meaning of this recordation statute. Hartford Acci., etc.,
Co. v. Coggin, 78 F. (2d) 471, 474.
§ 3311(1). Blank or master forms of mortgages,
etc., embodiment by reference in instruments
later filed.
The scheme authorized by this section has obvious advan-
tages and disadvantages. The advantages lie in the short-
ening of the later instruments. There will be some sav-
ing in recordation fees to persons and corporations giving
or taking numerous deeds, deeds of trust, and mortgages,
especially documents of a bulky character, such as some
corporate mortgages. The disadvantages are that persons
concerned with the subsequent documents will be obliged to
examine the record of the master form in order to be sure
what the provisions of the documents are. Furthermore, if
single provisions as distinguished from all the provisions of
the master form may be incorporated by reference to the
master form, the device is dangerous. 13 N. C. Law Rev.,
No. 4, p. 395.
It is hard to see why the section authorizes specifically a
master form for mortgages and deeds of trust, but does not
mention deeds. Deeds are included in the words "other in-
strument conveying an interest in — real and/or personal
property," but so are mortgages. The intent to include
deeds is made clear, however, by the specific mention of
them among the instruments which may incorporate the
provisions of the master form. 13 N. C. Law Rev., No. 4,
p 396.
Conditional sales are doubtless covered by the statute,
both because in North Carolina they are "mortgages" and
because they are instruments "conveying an interest in, or
creating a lien on," personal property. Various other secu-
rity devices, such as trust receipts are included for similar
reasons. So also . bills of sale are obviously instruments
"conveying an interest in" personal property. Id.
[93]
§ 3315
REGULATION OF INTOXICATING LIQUORS
§ 3379
§ 3315. Deeds of gift.
Unregistered Deed Void Regardless of Fraud. — Where a
deed appearing on its face to be a deed of gift is not reg-
istered in two years from its execution as required by this
section, it is void, and may be set aside in an action by
creditors of the grantor regardless of whether it was exe-
cuted in defraud of creditors. Reeves v. Miller, 209 N. C.
362, 183 S. E- 294.
Applied in Allen v. Allen, 209 N. C. 744, 184 S. E. 485.
§ 3319(b). Copies of deeds made by alien prop-
erty custodian may be registered; admissible in
evidence. — Any copy of a deed made, or purport-
ing to be made, by the United States alien prop-
erty custodian duly certified pursuant to Title
twenty-eight, section six hundred sixty-one of
United States Code by the department of jus-
tice of the United States, with its official seal im-
pressed thereon, when the said certified copy re-
veals the fact that the execution of the original
was acknowledged by the alien property custodian
before a notary public of the District of Colum-
bia, and that the official seal of the alien property
custodian by recital was. affixed or impressed on
the original, and further reveals it to have been
approved, as to form, by general counsel, and the
copy also shows that the original was signed and
approved by the acting chief, division of trusts,
and was witnessed by two witnesses, shall, when
presented to the register of deeds of any county
wherein the land described therein purports to be
situate, be recorded by the register of deeds of
such county without other or further proof of the
execution and/or delivery of the original thereof,
and the same when so recorded shall be indexed
and cross-indexed by the register of deeds as are
deeds made by individuals upon the payment of the
usual and lawful fees for the registration thereof.
The record of all such recorded copies of such
instruments shall be received in evidence in all
the courts of this state and the courts of the
United States in the trial of any cause pending
therein, the same as though and with like effect
as if the original thereof had been probated and
recorded as required by the law of North Caro-
lina, and the record in the office of register of
deeds of such recorded copy of such an instru-
ment shall be presumptive evidence that the orig-
inal of said copy was executed and delivered to
the vendee, or vendees therein named, and that
the original thereof has been lost or unintention-
ally destroyed without registration, and in the ab-
sence of legal proof to the contrary said so regis-
tered copy shall be conclusive evidence that the
United States alien property custodian conveyed
the lands and premises described in said registered
copy to the vendees therein named, as said copy
reveals, and title to such land shall pass by such
recorded instrument. (1937, c. 5, ss. 1, 2.)
Art. 4. Curative Statutes; Acknowledgments;
Probates; Registration
§ 3366 (j5). Acknowledgments of notary hold-
ing another office. — In every case where deeds
or other instruments have been acknowledged
before a notary public, when the notary public
at the time was also holding some other office,
and the deed or other instrument has been duly
probated and recorded, such acknowledgment
taken by such notary public is hereby declared to
be sufficient and valid: Provided, this section
shall not affect vested rights or pending litiga-
tion. (1935, c. 133; 1937, c. 284.)
Editor's Note. — The 1937 amendment re-enacted this sec-
tion without change.
§ 3366(j6). Acknowledgment and private ex-
amination of married woman taken by officer who
was grantor. — In all cases where a deed or deeds
of mortgages or other conveyances of land dated
prior to the first (1st) day of January, one thou-
sand nine hundred and twenty-six (1926), pur-
porting to convey lands have been registered in
the office of the register of deeds of the county
where the lands conveyed in said deeds are lo-
cated prior to said first (1st) day of January, one
thousand nine hundred and twenty-six (1926),
and the acknowledgments or proof of execution
of such deed or deeds and the private examina-
tion of any married woman who is a grantor in
such deed or deeds have been taken as to some
of the grantors, and the private examination of
any married woman grantor in such deed has
been taken by an officer who was himself one of
the grantors named in such deed or deeds, such
defective execution, acknowledgment, proof of
execution and the private examination of such
married woman, evidenced by the certificate
thereof on such deed and the registration thereof
as above described and set forth, shall be and the
same are hereby declared to be in all respects
valid, and such deed or deeds or other convey-
ances of land are declared to be in all respects
duly executed, probated and recorded to the same
effect as if such officer taking such proof or ac-
knowledgment of execution or taking the private
examination of such married woman and certify-
ing thereto upon such deed or deeds had not been
named as grantor therein and had not been inter-
ested therein in any way whatsoever: Provided
this section shall not apply to pending litigation.
(1937, c. 91.)
CHAPTER 66
PROHIBITION AND REGULATION OF
INTOXICATING LIQUORS
Art. 4. Search and Seizure Law
§ 3379. Keeping liquor for sale; evidence.
Constitutionality. —
In accord with first paragraph in original. See State v.
Langley, 209 N. C. 178, 183 S. E- 526.
This statute is still in force in all the counties of the
state, unaffected by ch. 493, Public Laws of 1935, § 3411(38)
et seq., the act of 1935 not being in conflict therewith. State
v. Iyangley, 209 N. C. 178, 183 S. E- 526.
It is not repealed as to New Hanover County by ch. 418,
Public Laws of 1935. State v. Tate, 210 N. C. 168, 185 S.
E. 665.
The general prohibition law of the State was not repealed
by ch. 493, Public Laws of 1935, § 3411(38) et seq., as _ to
counties not named in the latter act, its provisions applying
by express provision only to the counties therein named, and
it is unlawful to possess intoxicating liquor for the purpose
of sale in any counties of the State not named in the act
of 1935. State v. Jones, 209 N. C. 49, 182 S. E>. 699.
Possession of More than Gallon Is Prima Facie Evidence
of Possession for Purpose of Sale.— The possession of more
than one gallon of intoxicating liquor is prima facie evi-
dence of possession for the purpose of sale under this sec-
tion, and is sufficient to take the case to the jury on the
issue. State v. Tate, 210' N. C. 168, 185 S. £.665.
But evidence establishing defendant's possession of more
than a gallon of intoxicating liquor, without other incrimi-
nating evidence, is insufficient to support a directed verdict
of guilty of possession of intoxicating liquor for the pur-
[ 94
§ 3380
REGULATION OF INTOXICATING LIQUORS
§ 3411(64)
State
Ellis, 210 N. C.
pose of sale under this section.
166, 185 S. E. 663.
Sufficient Evidence to Submit Question of Possession to
Jury.— Evidence that officers found a funnel, a number of
containers, and glasses smelling of whiskey, in different
places on defendant's premises, is held sufficient to be sub-
mitted to the jury in a prosecution on a charge of having
possession of intoxicating liquor for the purpose of sale, al-
though the amount of whiskey discovered was insufficient
to invoke the presumption under the subdivision (2) of this
section. State v. Rhodes, 210 N. C. 473, 187 S. E. 553.
Allegation That Whiskey Did Not Contain A. B. C. Stamp
Regarded as Surplusage.— In an indictment sufficiently
charging possession of liquor for the purpose of sale under
this section an additional allegation that the whiskey did
not bear the stamp of the A. B. C. Board of the county
is an allegation of a nonessential fact, and will be regarded
as surplusage. State v. Atkinson, 210 N. C. 661, 188 S. E. 73.
§ 3380. Search and seizure upon complaint and
warrant.
For article discussing limits to search and seizure, see
15 N. C. Law Rev., No. 3, p. 229. See also, 15 N. C. Law
Rev., No. 2, p. 101.
Art. 6. Seizure and Forfeiture of Property
§ 3398. Duty of sheriff to seize distilleries.
For article discussing the limits to search and seizure, see
15 N. C. Law Rev., No. 3, p. 229.
§ 3401. Fee for seizure.
Editor's Note.— Public Laws 1937, c. 442, provides that the
provisions of this section shall not apply to Anson county.
Art. 8. National Liquor Law, Conformation of
State Law
§ 3411(a). Definitions.
When Provisions Do Not Apply.— If a majority of the qual-
ified voters of the counties named in § 3411(38) vote in favor
of the sale of intoxicating liquors, then the provisions of this
and the following sections, known as the Turlington Act,
shall not apply to such counties. State v. Langley, 209 N
C. 178, 182, 183 S. E. 526.
Cited in Hill v. Board of County Com'rs, 209 N. C. 4, 182
S. E. 709; Sprunt v. Hewlett, 208 N. C. 695, 182 S. E- 655-
Inscoe v. Boone, 208 N. C. 698, 182 S'. E- 926; State v El-
lis, 210 N. C. 166, 185 S. E- 663.
§ 3411(f). Seizure of liquor or conveyance; ar-
rests; sale of property.
For article discussing the limits to search and seizure, see
15 N. C. Law Rev., No. 3, p. 229.
Meaning of "Absolute Personal Knowledge."— Under this
section an officer "discovers any person in the act" and has
"absolute personal knowledge" (1) when he sees the liq-
uor; (2) when he has absolute personal knowledge . . .
acquired through the senses of seeing, hearing, smelling,
tasting or touching. 15 N. C. Law Rev., No. 2, p. 131, cit-
ing State v. Godette, 188 N. C. 497, 125 S. E. 24.
§ 341 l(j). Possession prima facie evidence of
keeping for sale.
Provisions Repealed in New Hanover County.— The provi-
sions of this section, making the possession of intoxicating
liquor lawful m certain instances, is repealed in New Han-
over County by ch. 418, Public Laws of 1935. State v. Tate
210 N. C. 168, 185 S. E. 665.
Section Limited to Private Dwelling Used Exclusively as
a Dwelling— The provision of this section that a person may
legally possess intoxicating liquor in his dwelling for his
personal consumption is limited by its terms to a private
dwelling occupied and used exclusively as a dwelling, and a
person may not lawfully possess intoxicating liquor in a
building or structure used and operated by such person as a
filling station and dwelling combined when the parts of the
structure used for the respective purposes are connected.
State v. Hardy, 209 N. C. 83, 182 S. E- 831.
§ 3411 (x). Rewards for seizure of still.
Editor's Note.-Public Laws 1937, c. 442, provides that the
provisions of this section shall not apply to Anson county.
Art. 9. Legalization of Sale of Beverage with
Not More than 3,2% Alcoholic Content
§i§ 3411(dd)-3411(mm): Repealed, so far as in
[ 95
conflict, by Public Laws 1937, c. 127, s. 527, codi-
fied as § 3411(119).
Art. 10. Beverage Control Act of 1933
§ 3411(13). County license to sell at retail.
Editor's Note.— For act applicable only to Poplar Branch
township in Currituck county, see Public Laws 1937, c. 390.
Art. 11. Manufacture and Sale of Light
Domestic Wines
§ 3411(30). Growers of crops may make, sell
and transport wines; sale in original packages;
wines not manufactured in state. —
Provided, however, that any person, firm or
corporation licensed in North Carolina to sell
wines under this law shall have authority to im-
port and sell wines not manufactured within the
state, and which are not otherwise prohibited to
be sold under the laws of the United States.
(1935, c. 393, s. 2; 1937, c. 325.)
Editor's Note.— The 1937 amendment directed that the
above proviso be added at the end of this section. The
rest of the section, not being affected by the amendment,
is not set out here.
Art. 12. Advertising of Alcoholic Beverages
§ 3411 (37)a. Advertising of intoxicating liquors
prohibited. — It shall be unlawful for any person,
firm, or corporation to display, or permit to be
displayed, upon any billboard, sign-board, or any
other similar advertising medium, any advertise-
ment of any alcoholic beverages or any spiritu-
ous liqours as defined in chapter forty-nine of the
Public Laws of one thousand nine hundred thirty-
seven [§ 3411(65) et seq.], or any acts amenda-
tory thereof, in North Carolina. Any person,
firm, or corporation violating the provisions of
this section shall be guilty of a misdemeanor and
shall, upon conviction, be fined or imprisoned, in
the discretion of the court. (1937, c. 398.)
See § 3411(81).
Art. 13. Exemption of Certain Counties from
Provisions of Article 8
§i§ 3411 (38) -3411 (64): Repealed, except as re-
ferred to, by Public Laws 1937, c. 49, s. 27, codi-
fied as § 3411(91).
Editor's Note. — For act exempting town of Windsor in
Bertie county from Turlington Act, see Public Laws 1937,
c. 310.
For act constituting county commissioners of Halifax
County the board of alcoholic control of said county, see
Public Laws 1937, c. 302.
For temporary act providing salary for chairman of board
of Franklin county, see Public Laws 1937, c. 250, s. 1.
The following cases, arising under, the former law are
placed here for the convenience of the practitioner.
General Prohibition Law Not Repealed as to Counties Not
Named. — The general prohibition law of the state was not
repealed by this and the following sections as to counties
not named. It is unlawful to possess intoxicating liquor for
the purpose of sale in any counties of the state not named.
State v. Jones, 209 N. C. 49, 182 S. E. 699.
The contention that former section 3411(49) repealed all the
laws of this State making it unlawful for any person to
have intoxicating liquor in his possession for the purpose
of sale, not only as to the counties named in the act, but
also as to all other counties in this State, manifestly could
not be sustained. State v. Jones, 209 N. C. 49, 50, 182 S.
E. 699.
Section 3379 Not Repealed, Amended or Modified.— There
is no provision in this and the following sections expressly
or by implication repealing, amending, or modifying section
3379, which is not a part of or included within the provi-
sions of the Turlington Act, section 3411(a) et seq. State
v. Langley, 209 N. C. 178, 182, 183 S. E. 526.
Injunction to Restrain Election under Chapter Denied. —
Plaintiffs sought to enjoin the holding of an election under
§ 3411(65)
REGULATION OF INTOXICATING LIQUORS
§ 3411(68)
this section and the following sections, contending that
the statute under which the proposed election was to be
held was unconstitutional. Held: Plaintiffs were not enti-
tled to the injunctive relief sought, since if taxes should be
levied to meet the expense of putting the statute into opera-
tion, plaintiffs have an adequate remedy at law, and since
plaintiffs have an adequate remedy against alleged uncon-
stitutional discriminations of the statute by violating the
statute and pleading its unconstitutionality as a defense,
and plaintiffs not being entitled to injunctive relief in the ab-
sence of a showing of direct injury or an invasion of their
property rights resulting in irreparable injury. Newman v.
Watkins, 208 N. C. 675, 182 S. E. 453, followed in Inscoe
v. Boone, 208 N. C. 698, 182 S. E. 926; Hill v. Board of
County Com'rs, 209 N. C. 4, 182 S. E- 709.
Cited in S'prunt v. Hewlett, 208 N. C. 695, 182 S. E. 655;
Lucas v. Midgette, 208 N. C. 699, 182 S. E- 328; 13 N. C.
Eaw Rev., No. 4, p. 389.
Art. 14. Manufacture, Sale and Control of
Alcoholic Beverages
§ 3411(65). Purposes of article. — The purpose
and intent of this article is to establish a system
of control of the sale of certain alcoholic bever-
ages in North Carolina, and to provide the ad-
ministrative features of the same, in such a manner
as to insure, as far as possible, the proper admin-
istration of the sale of certain alcoholic beverages
under a uniform system throughout the state.
(1937, c. 49, s. 1.)
§ 3411(66). State board of alcoholic control
created; membership; compensation. — A state
board of alcoholic control is hereby created, to
consist of a chairman and two associate members.
The members of said board shall be men well
known for their character and ability and busi-
ness acumen and success. The chairman of said
board shall devote his whole time to his official
duties and shall receive a salary of six thousand
($6,000.00) dollars per annum, payable monthly,
together with necessary traveling expenses, to be
limited, however, in the same manner as limita-
tions for the expenses of associate members as
hereinafter set forth, and the two associate mem-
bers of said board shall receive for the time actu-
ally engaged in their official duties, twenty-five
($25.00) dollars per day, with travel expense, as
follows: When their private automobiles are
used they shall be paid therefor, at the rate of
five cents per mile traveled from their homes, to
and from the place of meeting, or elsewhere, on
official business, and if railroad or bus travel is
used, then the actual amount thereof, and their
per diem and travel expense as herein allowed,
shall be paid to them monthly upon the certifi-
cate and approval of the chairman of said com-
mission. All sums authorized to be paid under
the provisions of this section are hereby appro-
priated and shall be paid by the state treasurer
out of any fund of the state of North Carolina not
otherwise appropriated, after being duly audited
and approved by said state auditor. (1937, c. 49,
s. 2, c. 411.)
§ 3411(67). Members of board appointed by
governor; terms of office. — The members of said
state board shall be appointed by the governor,
and the first appointees shall serve as follows:
The chairman shall serve for a period of three
years from the date of his appointment and one
associate member shall serve for a period of two
years from the date of his appointment and the
other associate member shall serve for a period
of one year from the date of his appointment, and
the subsequent appointments of all of the mem-
bers of the said board shall be for a term of three
years from the date of each appointment. (1937,
c. 49, s. 3.)
§ 3411(68). Powers and authority of board. —
Said state board of alcoholic control shall have
power and authority as follows, to wit:
(a) To see that all the laws relating to the sale
and control of alcoholic beverages are observed
and performed.
(b) To audit and examine the accounts, records,
books and papers relating to the operation of
county stores herein provided for, or to have the
same audited.
(c) To approve or disapprove the prices at
which the several county stores may sell alcoholic
beverages and it shall be the duty of said board
to require the store or stores in the several coun-
ties coming under the provisions of this article to
fix and maintain uniform prices and to require
sales to be made at such prices as shall promote
temperate use of such beverages and as may fa-
cilitate policing.
(d) To remove any member, or members, of
county boards whenever in the opinion of the
state board, such member, or members, of the
county board, or boards, may be unfit to serve
thereon.
(e) To test any and all alcoholic beverages
which may be sold, or proposed to be sold to the
county stores, and to install and operate such ap-
paratus, laboratories, or other means or instru-
mentalities, and employ to operate the same such
experts, technicians, employees and laborers, as
may be necessary to operate the same, in accord-
ance with the opinion of the said board, or may,
if they deem advisable, cause such tests to be
made otherwise. In lieu of establishing and op-
erating laboratories as above directed, the board
may, with the approval of the governor and the
commissioner of agriculture, arrange with the
state chemist to furnish such information and ad-
vice, and to perform such analyses and other lab-
oratory services as the board may consider neces-
sary.
(f) To supervise purchasing by the county
boards when said state board is of the opinion
that it is advisable for it to exercise such power
in order to carry into effect the purpose and in-
tent of this article, with full power to disapprove
any such purchase and at all times shall have the
right to inspect all invoices, papers, books and
records in the county stores or boards relating to
purchases.
(g) To exercise the power to approve or disap-
prove in its discretion all regulations adopted by
the several county stores for the operation of said
stores and the enforcement of alcoholic beverage
control laws which may be in violation of the
terms or spirit of this article.
(h) To require that a sufficient amount shall be
so allocated as to insure adequate enforcement
and the amount shall, in no instance, be less than
five per cent, nor more than ten per cent of the
net profits arising from the sale of alcoholic bev-
erages.
(i) To remove in case of violation of the terms
or spirit of this article, officers employed, elected
or appointed in the several counties where county
stores may be operated.
[ 96
§ 3411(69)
REGULATION OF INTOXICATING LIQUORS
§ 3411(70)
(j) To approve or disapprove, in its discretion,
the opening of county stores, except each county
that may be entitled to operate stores for the sale
of alcoholic beverages shall be entitled to operate
at least one store for such purpose, at the county
seat therein, or at such other place as may be se-
lected by the said county board, provided that in
the location of control stores in any county in
which a majority of the votes have been cast for
liquor control stores due consideration shall be
given to communities or towns in which a ma-
jority of the votes were cast against control, but
nothing herein contained shall be construed so
as to abridge any of the provisions elsewhere
contained relative to the opening, closing or lo-
cating such stores. As to all additional stores in
each of said counties the same shall not be opened
until and unless the opening of the same and the
place of location thereof shall first be approved
by the said state board, which at any time may
withdraw its approval of the operation of any ad-
ditional county store when the said store is not
operated efficiently and in accordance with the
alcoholic beverage control laws and all valid
regulations prescribed therefor, or whenever, in
the opinion of the said state board, the operation
of any county store shall be inimical to the mor-
als or welfare of the community in which it is
operated or for such other cause, or causes, as
may appear to said state board sufficient to war-
rant the closing of any county store.
(k) To require the use of a uniform accounting
system in the operation of all county stores here-
under and to provide in said system for the keep-
ing therein and the record of all such informa-
tion as may, in the opinion of the said state board,
be necessary or useful in its auditing of the af-
fairs of the said county stores, as well as in the
study of such problems and subjects as may be
studied by said state board in the performance of
its duties.
(1) To grant, to refuse to grant, or to revoke,
permits for any person, firm or corporation to do
business in North Carolina in selling alcoholic
beverages to or for the use of any county store
and to provide and to require that such informa-
tion be furnished by such person, firm or corpo-
ration as a condition precedent to the granting of
such permit, or permits, and to require the furnish-
ing of such data and information as it may desire
during the life of such permit, or permits, and for
the purpose of determining whether such permit,
or permits, shall be continued, revoked or re-
granted after expiration dates. No permit, how-
ever, shall be granted by said state board, to any
person, firm or corporation when the said state
board has reason sufficient unto itself to believe
that such person, firm or corporation has fur-
nished to it any false or inaccurate information
or is not fully, frankly and honestly cooperating
with the said state board and the several county
boards in the observance and performance of all
alcoholic beverage laws which may now or here-
after be in force in this state, or whenever the
said board shall be of opinion that such permit
ought not to be granted or continued for any
cause.
(m) The said state board shall have all other
powers which may be reasonably implied from the
granting of express powers herein named, to-
gether with such other powers as may be inci-
dental to, or convenient for, the carrying out and
performance of the powers and duties herein
given to said board.
(n) To permit the establishment of warehouses
for the storage of alcoholic beverages within the
state, the storage of alcoholic beverages in ware-
houses already established, and to prescribe rules
and regulations for the storage of such beverages
and the withdrawal of the same therefrom. Such
warehousing or bailment of alcoholic beverages as
may be made hereunder shall be for the conven-
ience of delivery to alcoholic boards of control au-
thorized to purchase the same and shall be under
the strict supervision and subject to all of the
rules and regulations of the state board of con-
trol relating thereto. (1937, c. 49, s. 4, cc. 237,
411.)
Editor's Note. — This section would seem to authorize the
making of necessary rules and regulations to carry out
the provisions of the act. 15 N. C. I,aw Rev., No. 4, p.
323.
Under this section the state board is given power to grant,
deny or revoke permits for the sale of alcoholic beverages
to county liquor stores. This seems to be a very flexible
provision to secure an honest co-operation by those who
sell alcoholic beverages with the state board and the sev-
eral county boards. There are no provisions for notice or
hearing or appeal and it is likely that no such provisions
are needed in view of the fact that state agencies are en-
gaged in the purchase of goods and may do so on their own
terms. 15 N. C. Law Rev., No. 4, p. 328.
§ 3411(69). Removal of member by governor;
vacancy appointments. — The governor shall at all
times have full power and authority to remove any
and all members of the said state board, upon no-
tice to such member or members, in his discre-
tion, for any cause that appears to him to be suffi-
cient, and to reappoint his successor or succes-
sors to the removed members, observing, however,
the terms of office of each of them, as herein set
forth, and whenever a vacancy shall occur for any
cause then the appointment to fill such vacancy
shall be for the unexpired portion of the term of
the predecessor of each appointee. (1937, c.
49, s. 5.)
§ 3411(70). County boards of alcoholic control.
— In each county which may be hereafter per-
mitted to engage in the sale of alcoholic bever-
ages, there is hereby created a county board of
alcoholic control, to consist of a chairman and
two other members. The members of said board
shall be well known for their character, ability
and business acumen. The members of said
board shall be selected in each respective county
in a joint meeting of the board of county com-
missioners, the county board of health and the
county board of education, and each member
present shall have only one vote, notwithstanding
the fact that there may be instances in which
some members are members of another board.
The terms of office of the members of said
county boards shall be as follows: The chairman,
who shall be so designated by the appointing
boards, shall serve for his first term a period of
three years and one member shall serve for his
first term a period of two years and the other
member shall serve for a period of one year, all
terms beginning with the date of their appoint-
ment and after the said term shall have expired
their successors in office shall serve for a period
of three years and shall be appointed in the same
manner as herein provided in this section.
N. C. Supp.— 7
[97]
§ 3411(71)
REGULATION OF INTOXICATING LIQUORS
§ 3411(73)
In those counties, however, in which boards of
control have been appointed under the provisions
of chapters four hundred eighteen and four hun-
dred ninety-three of the Public Laws of one thou-
sand nine hundred thirty-five [§ 3411(38) et seq.],
respectively, the respective boards of control so
appointed shall constitute the board of control of
the county for the full term, and at the expiration
of such term their successors shall be appointed
in the manner herein provided for the appoint-
ment of members of county boards of control.
The terms of the members of the said respec-
tive boards of control heretofore appointed shall
expire on June thirtieth, one thousand nine hun-
dred thirty-nine, at which time new boards shall
be selected in the same manner and for the same
terms as set forth in this section.
Any member of any of the county boards here-
in above referred to in this section may be re-
moved at any time by such composite board con-
sisting of the board of county commissioners, the
board of education and the board of health, when-
ever such composite board may find by a major-
ity vote of its entire membership such member
or members unfit to serve thereon, each member
having only one vote as above provided for the
selection of such members of county boards. In
the event any member of the county board shall
be removed hereunder, his successor shall be se-
lected to serve out the time for which such mem-
ber was originally selected.
From and after the ratification of this article,
the said county boards of control so appointed
under chapters four hundred eighteen and four
hundred ninety-three of the Public Laws of one
thousand nine hundred thirty-five shall operate
liquor stores now being operated under the terms,
provisions, restrictions, regulations and require-
ments of this article; Provided, that the board of
control for Wilson county under chapter four
hundred ninety-three of the Public Laws of one
thousand nine hundred thirty-five is authorized
and empowered to operate the liquor stores at
Southern Pines and at Pinehurst in Moore county
under the provisions of said chapter four hundred
ninety-three of the Public' Laws of one thousand
nine hundred thirty-five for thirty days after the
ratification of this article; and thereafter the
county board of alcoholic control created by the
terms of this article and elected for the county
of Moore shall likewise be authorized and em-
powered after said thirty days from the ratifica-
tion of this article, to operate said liquor stores
at Southern Pines and at Pinehurst in Moore
county under the terms, provisions, restrictions,
regulations and requirements of this article.
Upon the establishment and operation of said liq-
uor stores at Southern Pines and at Pinehurst,
the said county board of alcoholic control of
Moore county is authorized and empowered to
purchase, receive or exchange from the said Wil-
son county board and the said Wilson county
board is authorized and empowered to sell, ex-
change and deliver to said Moore county board,
at Southern Pines or at Pinehurst, any of the liq-
uors or alcoholic beverages owned by said Wil-
son county board, for such prices and upon such
terms of sale and purchase and subject to such
conditions as may be mutually agreed upon by
said two boards.
[ 98
Upon the death or resignation of the chairman
or any other member of the county board of al-
coholic control, whether selected under the pro-
visions of this article or under the provisions of
chapter four hundred and eighteen or chapter
four hundred and ninety-three of the Public Laws
of one thousand nine hundred and thirty-five, fol-
lowing the expiration of the term of office for
which said chairman or member has been ap-
pointed, elected or selected, his successor to fill
out such unexpired term shall be selected at a
joint meeting of the board of county commis-
sioners, the county board of health and the county
board of education, which joint meeting shall be
held within ten (10) days after such resignation
or death, which meeting shall be called by the
chairman or some other member of the county
board of alcoholic control, by giving notice to
each member of the time and place of holding
such meeting. (1937, c. 49, s. 6, cc. 411, 431.)
Editor's Note. — For act constituting county commissioners
of Halifax county, the county board of alcoholic control of
said county, see Public Laws 1937, c. 302.
For alcoholic beverage control act applicable to Windsor
in Bertie county, see Public L,aws 1937, c. 310.
§ 3411(71). Compensation for members of
county boards. — The salaries of the members of
the said county board shall be fixed by the joint
meeting of the several boards that appoint them
and shall be fixed with the view to securing the
very best members available, with due regard to
the fact that such salaries shall be adequate com-
pensation, but shall not be large enough to make
said positions unduly attractive or the objects of
political aspirations. (1937, c. 49, s. 7.)
Editor's Note. — For temporary act providing salary for
chairman of board of Franklin county, see Public Laws
1937, c. 250, s. 1.
§ 3411(72). Persons disqualified for member-
ship on boards. — No person shall be appointed a
member of either the state board or of any county
board or employed thereby who shall be a stock-
holder in any brewery or the owner of any inter-
est therein in any manner whatsoever, or interested
therein directly or indirectly, or who is like-
wise interested in any distillery or other enter-
prise that produces, mixes, bottles or sells alco-
holic beverages, or who is related to any person
likewise interested or associated in business with
any person likewise interested and neither of said
boards shall employ any person who is interested
in, directly or indirectly, or related to, any per-
son interested in any firm, person or corporation
permitted to sell alcoholic beverages in this state.
(1937, c. 49, s. 8, c. 411.)
§ 3411(73). Bonds required of members of
county boards. — The several members of the
county board shall give bond for the faithful per-
formance of their duties, in the penal sum of five
thousand ($5,000.00) dollars, and the said bond
shall be payable to the state of North Carolina
and to the county in which said board performs
its duties, with some corporate surety, which
surety shall be satisfactory to, and approved by,
the county attorney of said county, and the chair-
man of the state board, and shall be deposited
with the chairman of the state board. The state
board for and on behalf of the state of North Car-
olina, and the county named in said bond, shall
each be secured therein to the full amount of the
§ 3411(74)
REGULATION OF INTOXICATING LIQUORS
§ 3411(74)
penalty thereof and the recovery or payment of
any sums due thereunder to either shall not di-
minish or affect the right of the other obligee in
said bond to recover the full amount of the said
penalties thereof, and the giving and the approval
of such bond shall be a part of the qualification
of said members and no member shall be entitled
to exercise any of the functions or powers inci-
dent to his appointment until and unless the said
bond shall have been given and approved as here-
in provided. (1937, c. 49, s. 9.)
§ 3411(74). Powers and duties of county boards.
— The said county boards shall each have the fol-
lowing powers and duties:
(a) Control and jurisdiction over the importa-
tion, sale and distribution of alcoholic beverages
within its respective county.
(b) Power to buy and to have in its possession
and to sell alcoholic beverages within its county.
(c) Power and authority to adopt rules and
regulations governing the operation of stores
within its county and relating to the carrying out
of the provisions and purposes of this article.
(d) To prescribe and regulate and direct the
duties and services of all employees of said county
board.
(e) To fix the hours for the opening and clos-
ing of stores operated by it. No store, however,
shall be permitted to remain open between the
hours of nine o'clock p. m. and nine o'clock a. m.
(f) To require any county stores to close on
such days as it may designate, but all stores in
any county operating under the provisions of this
article shall remain closed on Sundays, election
days, New Year's Day, Fourth of July, Labor
Day, Armistice Day, Thanksgiving and Christ-
mas Day.
(g) To import, transport, receive, purchase,
sell and deliver and have in its possession for sale
for present and future delivery alcoholic beverages.
(h) To purchase or lease property, furnish and
equip buildings, rooms and accommodations as
and when required for the storage and sale of al-
coholic beverages and for distribution to all
county stores within said county.
(i) To borrow money, guarantee the payment
thereof and the interest thereon, in such manner
as may be required or permitted by law, and to
issue, sign, endorse and accept checks, promis-
sory notes, bills of exchange and other negotiable
instruments and to do all such other and neces-
sary things as may be required or may be con-
venient in the conduct of liquor stores in its
county.
(j) To investigate and aid in the prosecution
of violations of this article and other liquor laws,
by whatever name called, and to seize alcoholic
beverages in said county sold, kept, imported or
transported illegally and to apply for confiscation
thereof and to cooperate in the prosecution of of-
fenders in any court in said county.
(k) To regulate and to prescribe rules and regu-
lations that may be necessary or feasible for the
obtaining of purity in all alcoholic beverages, in-
cluding true statements of contents and the proper
labeling thereof.
(1) To fix and maintain the prices of all alco-
holic beverages sold by liquor stores in said
county and to prescribe to whom the same may
be sold.
The provisions of this article shall not apply to
ethyl alcohol intended for use and/or used for the
following purposes:
For scientific, chemical, mechanical, industrial,
medicinal and culinary purposes.
For use by those authorized to procure the
same tax free, as provided by the act of congress
and regulations promulgated thereunder.
In the manufacture of denatured alcohol pro-
duced and used as provided by the acts of con-
gress and regulations promulgated thereunder.
In the manufacture of patented, patent, propri-
etary, medicinal, pharmaceutical, antiseptic, toilet,
scientific, chemical, mechanical, and industrial
preparations or products unfit for beverage pur-
poses.
In the manufacture of flavoring extracts and
syrups unfit for beverage purposes.
(m) To exercise the power to buy, purchase
and sell and to fix the prices at which all alco-
holic beverages may be purchased from it, but
nothing herein contained shall give said board
the power to purchase or sell or deal in alcoholic
beverages which contain less than five per centum
of alcohol by weight.
(n) To locate stores in its county and to pro-
vide for the management thereof and to appoint
and employ at least one person for each store
conducted by it, who shall be known as "man-
ager" thereof. The duty of such manager shall
be to conduct the said store under directions of
the county board and to carry out the law ap-
plying thereto, and such manager shall give bond
for the faithful performance of his duties in such
sum as may be fixed by said county board, with
sufficient corporate surety and said surety, or
sureties thereon, shall be approved by the said
county board as a part of the qualifications of
such manager for his appointment, and the said
county board shall have the right to sue on said
bond and to recover for all failures on the part
of said manager faithfully to perform his duties
as such manager, to the extent of any loss occa-
sioned by such manager on his part, but as
against the surety, or sureties, thereon, such ag-
gregate recovery, or recoveries, shall not exceed
the penalty of said bond.
(o) To expend for law enforcement a sum not
less than five per cent nor more than ten per cent
of the total profits to be determined by quarterly
audits and in the expenditure of said funds shall
employ one or more persons to be appointed by
and directly responsible to the respective county
boards. The persons so appointed shall, after
taking the oath prescribed by law for the peace
officers, have the same powers and authorities
within their respective counties as other peace
officers.
(p) To discontinue the operation of any store
in its county whenever it shall appear to said
board that the operation thereof is not sufficiently
profitable to justify a continuance of its operation,
or when, in its opinion, the operation of any store
inimical or hurtful to the morals or welfare of the
community in which it is operated, or when said
county board may be directed to close any store
by the state board; provided, that the liquor
stores at Southern Pines and at Pinehurst in
99 ]
§ 3411(75)
REGULATION OF INTOXICATING LIQUORS
§ 3411(78)
Moore county, shall be continued under the pro-
visions of this article, but no other stores shall be
established or operated in Moore county unless
and until an election may be had in said county
under the provisions of this article and a major-
ity of the votes cast at such election shall have
been "for county liquor control stores." An elec-
tion in Moore county upon the question of the
establishment or operation of liquor stores under
the provisions of this article may be called only
after three years from the ratification of this ar-
ticle.
All the powers and duties herein conferred upon
county boards, or required of them, shall be sub-
ject to the powers herein conferred upon the state
board and whenever or wherever herein the state
board has been given power to approve or disap-
prove anything in respect to county stores or
county boards, then no power on the part of the
county boards and no act of any county board
shall be exercisable or valid until and unless the
same has been approved by the state board.
(1937, c. 49, s. 10, cc. 411, 431.)
§ 3411(75). No sales except during hours fixed
by county boards; sales to minors, habitual
drunkards, etc.; discretion of managers and em-
ployees; list of persons convicted of drunkenness,
etc.; unlawful to buy for person prohibited. — No
alcoholic beverage shall be sold knowingly by
any county store or the manager thereof or any
employee therein at any time other than within
the opening and closing hours for said store, as
fixed in the manner herein provided, and other-
wise as prescribed by the said county board. No
alcoholic beverage shall be sold knowingly to any
minor, or to any person who has been convicted
of public drunkenness or of driving any motor
vehicle while under the influence of intoxicating
liquors, or has been convicted of any crime
wherein the court or judge shall find as a fact
that such person committed said crime or aided
and abetted in the commission thereof as a re-
sult of the influence of intoxicating liquors
(within one year of any such conviction), or to
any person known to be an habitual drunkard or
who has within one year been confined in the in-
ebriate ward of any state institution. The man-
ager and employees of and in any county store
may, in their discretion, refuse to sell alcoholic
beverage to any individual applicant, and such
power and the duty to exercise the same shall
vest in and apply to such manager and employ-
ees, regardless of the failure of the county boards
to make any regulations providing for the same,
and in their discretion may refuse to sell more
than four quarts at any one time in any one day
to any person.
The various clerks of the superior court and
of any inferior courts in counties coming under
the provisions of this article shall furnish to the
chairman of the control board of their county a
list of all persons convicted of public drunken-
ness or convicted of driving an automobile while
intoxicated; and the state motor vehicle depart-
ment shall furnish to the chairmen of all the con-
trol boards in this state a list of all persons whose
driving licenses have been revoked for driving an
automobile while intoxicated, or for the illegal
use of whiskey.
It shall be unlawful for any person to buy any
alcoholic beverage if he be within the class pro-
hibited from purchasing same as set out in this
section, and it shall further be unlawful for any
person to buy any alcoholic beverage for any per-
son who may be prohibited from purchasing for
himself under any of the provisions of this ar-
ticle. (1937, c. 49, s. 11, c. 411.)
§ 3411(76). Drinking upon premises prohib-
ited; stores closed on Sundays, election days, etc.
— No alcoholic beverage shall be drunk upon the
premises of any county store or warehouse, or
room or building occupied or used by any county
board or any of its employees for the purpose of
performing their duties in respect to alcoholic
beverages, and such county boards, managers and
employees shall not permit alcoholic beverages to
be drunk upon said premises and all county
stores shall be closed on Sundays and election
days, and such other days as the state board may
designate. (1937, c. 49, s. 12.)
§ 3411(77). Possession illegal if taxes not paid;
punishment and forfeiture for violations; posses-
sion in container without proper stamp, prima
facie evidence. — It shall be unlawful for any firm,
person or corporation to have in his or its pos-
session any alcoholic beverages as defined herein
upon which the taxes imposed by the laws of con-
gress of the United States or by the laws of this
state, have not been paid and any person con-
victed of the violation of this section shall be
guilty of a misdemeanor and fined or imprisoned
in the discretion of the court and the alcoholic
beverage shall be seized and forfeited, together
with any vehicle, vessel, aeroplane or other equip-
ment used in the transportation and to carry the
said alcoholic beverages, and the procedure
pointed out in section six of chapter one of the
Public Laws of one thousand nine hundred
twenty-three [§ 3411(f)] for the seizure, arrest,
confiscation and sale of such vehicle, vessel, aero-
plane or other means of transportation shall be
used and the provisions of said section six of
chapter one of the public Laws of one thousand
nine hundred twenty-three are hereby declared
to be in full force and effect in any of the coun-
ties of the state which shall operate under the
provisions of this article, and the possession of
such alcoholic beverages in a container which
does not bear either a revenue stamp of the fed-
eral government or a stamp of any of the county
boards of the state of North Carolina shall con-
stitute prima facie evidence of the violation of
this section. (1937, c. 49, s. 13.)
§ 3411(78). Transportation, not in excess of
one gallon, authorized; transportation in course
of delivery to stores. — It shall not be unlawful
for any person to transport a quantity of alco-
holic beverages not in excess of one gallon from
a county in North Carolina coming under the
provisions of this article to or through another
county in North Carolina not coming under the
provisions of this article: Provided, said alco-
holic beverages are not being transported for the
purposes of sale, and provided further that the
cap or seal on the container or containers of said
alcoholic beverages has not been opened or
broken. Nothing contained in this article shall
be construed to prevent the transportation through
any county not coming under the provisions of
[ 100
§ 3411(79)
REGULATION OF INTOXICATING LIQUORS
§ 3411(87)
this article, of alcoholic beverages in actual
course of delivery to any alcoholic beverage con-
trol board established in any county coming un-
der the provisions of this article. (1937, c. 49,
s. 14.)
§ 3411(79). Possession for sale and sales of
illicit liquors; sales of liquors purchased from
stores. — The possession for sale, or sales, of il-
licit liquors, or the sale of any liquors purchased
from the county stores, is hereby prohibited and
a violation of this section shall constitute a crime
and shall be punishable by fine or imprisonment,
or both, in the discretion of the court. (1937, c.
49, s. 15.)
§ 3411(80). Drinking or offering drinks on
premises of stores, and public roads or streets;
drunkenness, etc., at athletic contests or other
public places. — It shall be unlawful for any per-
son to drink alcoholic beverages or to offer a
drink to another person, or persons, whether ac-
cepted or not, at the place where the same is pur-
chased from the county store, or the premises
thereof, or upon any premises used or occupied
by county boards for the purpose of carrying out
the provisions of this article, or on any public
road or street, and it shall be unlawful for any
person or persons to be or become intoxicated or
to make any public display of any intoxicating
beverages at any athletic contest or other public
place in North Carolina. The violation of this
section shall constitute a misdemeanor and shall
be punishable by a fine of not exceeding fifty
($50.00) dollars or imprisoned for not more than
thirty days in the discretion of the court. (1937,
c. 49, s. 16, c. 411.)
§ 3411(81). Advertising alcoholic beverages pro-
hibited.— It shall be unlawful for any county
store to advertise anywhere, or by any means or
method, alcoholic beverages which it has for sale
and shall not advertise or post its prices, other
than in the store, or stores, which it operates, and
in such stores it shall only state the brands or
kinds of beverages and the price of each kind and
such price list shall only be posted for public
view in said store.
It shall be unlawful for any person, firm or
corporation to erect or set up, or permit to be set
up, any sign or bill-board, or other device, con-
taining any advertisement of alcoholic beverages
as defined herein on his premises, and if the same
shall be set up by any other person, then such
owner or lessee of such premises shall not permit
the same to remain thereon. (1937, c. 49, s. 17.)
See § 3411(37)a.
§ 3411(82). Advertising by radio broadcasts
prohibited. — No firm, person or corporation in
this state shall broadcast, or permit to be broad-
cast, any statement, speech, or any other message
by whatsoever name called, over any radio broad-
casting system doing business in this state, when
such advertising matter tends to advertise alco-
holic beverages as defined herein and the broad-
cast thereof originates in this state. (1937, c.
49, s. 18.)
§ 3411(83). Additional regulations as to adver-
tising.— The several county boards by and with
the consent and approval of the state board, shall
have power to make such other rules and regula-
tions as will prevent and tend to prevent adver-
tisement of alcoholic beverages otherwise than is
expressly prohibited herein and to publish such
rules and regulations and to take effective meas-
ures to enforce the same. (1937, c. 49, s. 19.)
§ 3411(84). Salaries and expenses paid from
proceeds of sales. — All salaries and expenses in-
curred under the provisions of this article except
those provided for in section 3411(66) shall be
paid out of the proceeds of the sales of the alco-
holic beverages referred to in this article. All
salaries and expenses of county boards and their
employees shall be paid out of the receipts for
their sales as operating expenses. (1937, c. 49,
s. 20.)
§ 3411(85). Net profits to be paid into general
fund of the various counties. — After deducting the
amount required to be expended for enforcement
as herein provided and retaining sufficient and
proper working capital, the amount to be deter-
mined by the board, and except as hereinbefore
provided in chapters four hundred ninety-three
and four hundred eighteen of the Public Laws of
one thousand nine hundred thirty-five [§ 3411(38)
et seq.], the entire net profits derived from any
stores shall be paid quarterly to the general fund
of each respective county wherein county stores
are operated. (1937, c. 49, s. 21, c. 411.)
Editor's Note. — For act applicable only to Franklin county,
see Public Laws 1937, c. 250, s. 2.
Public Iyaws 1937, c. 269, directed that this section be
amended by adding at the end the following: "The board
of county commissioners of Brunswick county may in their
discretion divide the net profits, derived from the operation
of any stores, with the municipalities located in said county
on any basis said commissioners may deem proper."
§ 3411(86). Transportation into state; and
purchases, other than from stores, prohibited. —
It shall be unlawful for any person, firm, or cor-
poration, to purchase in, or to bring in this state,
any alcoholic beverage from any source, except
from a county store operated in accordance with
this article, except a person may purchase legally
outside of this state and bring into the same for
his own personal use not more than one gallon
of such alcoholic beverage. A violation of this
section shall constitute a misdemeanor, punish-
able by fine or imprisonment, or both, in the dis-
cretion of the court. (1937, c. 49, s. 22.)
§ 3411(87). Violations by member or employee
of boards, cause for removal and punishable as
misdemeanor. — A violation of any of the provi-
sions of this article by any person, firm or corpo-
ration, and the violation of any provision of this
article, or any regulation adopted by any county
board or by the state board, by any member of
the state board, or any member of any county
board, or any employee of either of said boards,
shall constitute a misdemeanor, punishable by
fine or imprisonment, or both, in the discretion
of the court, and in addition thereto shall consti-
tute sufficient cause for the removal of such per-
son from either of said boards, or from his em-
ployment under either of said boards and in ad-
dition to the powers of the state board to remove
any of its employees or any member of any
county board and the power of any county board
to remove any of its employees from such em-
ployment, the court in which the said conviction
is had shall have the power upon such conviction
101 ]
§ 3411(88)
REGULATION OF INTOXICATING LIQUORS
§ 3411(90)
and as a part of its judgment thereon to remove
such person from either of said boards or from
the employment of either. (1937, c. 49, s. 23.)
§ 3411(88). "Alcoholic beverages," defined. —
The term "alcoholic beverages," as used in this
article, is hereby denned to be and to mean al-
coholic beverages of any and all kinds which shall
contain more than twenty-four per centum by
volume and this article is not intended to apply
to or regulate the possession, sale, manufacture
or transportation of beer, wines or ales contain-
ing a lower alcoholic content than above specified
and whenever the term alcoholic beverage is
used in this article it shall be construed as de-
fined in this section. (1937, c. 49, s. 24, c. 411.)
§ 3411(89). County elections as to liquor con-
trol stores; application of Turlington Act; time
of elections. — No county liquor store shall be es-
tablished, maintained or operated in this state, in
any county thereof, until and unless there shall
have been held in such county an election, under
the same rules and regulations which apply to
elections for members of the general assembly,
and at said election there shall be submitted to
the qualified voters of such county the question
of setting up and operating in such county a liq-
uor store, or stores, as herein provided, and those
favoring the setting up and operation of liquor
stores in such county shall mark in the voting
square to the left of the words, "for county liq-
uor control stores" printed on the ballot, and
those opposed to setting up and operating liquor
stores in such county shall mark in the voting
square to the left of the words, "against county
liquor control stores," printed on the same ballot,
and if a majority of the votes cast in such elec-
tion shall be for county liquor stores, then a liq-
uor store, or liquor stores, may be set up and op-
erated in such county as herein provided, and if
a majority of the votes cast at said election shall
be against county liquor stores, then no liquor
stores shall be set up or operated in said county
under the provisions of this article.
Such election shall be called in such county by
the board of elections of such county only upon
the written request of the board of county com-
missioners therein, or upon a petition to said
board of elections signed by at least fifteen per
centum of the registered voters in said county
that voted in the last election for governor. In
calling for such special liquor election the county
board of elections shall give at least twenty days
public notice of same prior to the opening of the
registration books, and the registration books
shall remain open for the same period of time be-
fore such special liquor election as is required by
law for them to remain open for a regular elec-
tion. A new registration of voters for such spe-
cial liquor election is not required and all quali-
fied electors who are properly registered prior to
the registration for the special election, as well as
those electors who register in said special liquor
election, shall be entitled to vote in said election.
If any county while operating any such control
store under the provisions of chapter four hun-
dred ninety-three or four hundred eighteen of the
Public Laws of one thousand nine hundred thirty-
five [§ 3411(38) et seq.] or under the terms of
this article shall hereafter under the provisions of
this article hold an election and at such election
a majority of the votes shall be cast "against
county liquor control stores," then the county con-
trol board in such county shall within three (3)
months from the canvassing of such vote and the
declaration of the result thereof, close said stores
and shall thereafter cease to operate the same.
During this period of time, the county control
board shall dispose of all alcoholic beverages on
hand, all fixtures and all other property in the
hands and under the control of the county con-
trol board and convert the same into money and
shall, after making a true and faithful accounting,
turn all money in its hands over to the general
fund of the county. Thereafter, chapter one of
the Public Laws of one thousand nine hundred
twenty-three [§ 3411(a) et seq.], being commonly
known as the Turlington Act, shall be in full
force and effect in such county, until and unless
another election is held under the provisions of
this article, in which a majority of the votes shall
be cast "for county liquor control stores," except
modified by this article or acts amendatory here-
of.
No election under this section shall be held on
the day of any biennial election for county offi-
cers, or within sixty days of such an election, and
the date of such elections under this section shall
be fixed by the board of elections of the county
wherein the same is held.
No other election shall be called and held in
any of the counties in the state under the provi-
sions of this article within three years from the
holding of the last election under this article. In
any county in which an election was held either
under the provisions of chapter four hundred
ninety-three or chapter four hundred eighteen of
the Public Laws of one thousand nine hundred
thirty-five, an ' election may be called under the
provisions of this article, provided no such elec-
tion shall be called within three years of the hold-
ing of the last election. (1937, c. 49, s. 25, c.
431.)
§ 3411(90). Elections in counties now operat-
ing stores, not required for continued operation;
Pinehurst and Southern Pine stores transferred
to Moore county board. — Nothing herein con-
tained shall be so construed as to require coun-
ties in which liquor stores have been established
under chapter four hundred eighteen or four hun-
dred ninety-three of the Public Laws of one thou-
sand nine hundred thirty-five [§ 3411(38) et seq.]
to have any further election in order to enable
such counties to establish liquor stores, and as to
such counties in which liquor stores are now be-
ing operated under chapters four hundred eight-
een or four hundred ninety-three of the Public
Laws of one thousand nine hundred thirty-five,
such stores shall from the ratification of this ar-
ticle be operated under the terms of this article;
Provided, that in Moore county the liquor stores
heretofore established and now being operated
under the provisions of said chapter four hun-
dred ninety-three of the Public Laws of one
thousand nine hundred thirty-five, at Southern
Pines and at Pinehurst by the Wilson county al-
coholic beverage control board, created by the
provisions of said chapter four hundred ninety-
three of the Public Laws of one thousand nine
hundred thirty-five, shall continue to be operated
[ 102
§ 3411(91)
REGULATION OF INTOXICATING LIQUORS
§ 3411(95)
for thirty days after the ratification of this article ; the character and number of packages or con-
and shall thereafter be operated under the provi-
sions of this article by the county board of al-
coholic control of Moore county under the pro-
visions of this article without requiring an elec-
tion on said question to be held in Moore county
under the provisions of this article. (1937, c. 49,
s. 26.)
§ 3411(91). Laws repealed. — Chapters four hun-
dred eighteen and four hundred ninety-three of
the Public Laws of one thousand nine hundred
thirty-five [§ 3411(38) et seq.] be and the same
are hereby repealed, except as referred to in this
article, and all other laws and clauses of laws in
conflict herewith to the extent of such conflict
are hereby repealed. (1937, c. 49, s. 27.)
Art. 15. Beverage Control Act of 1937
§ 3411(92). Title.— This article shall be known
as the Beverage Control Act of one thousand
nine hundred and thirty-seven. (1937, c. 127, s.
500.)
§ 3411(93). Definitions. — The term "beverages"
as used in this article shall include:
(a) Beer, lager beer, ale, porter, and other
brewed or fermented beverages containing one-
half of one per cent (1%) of alcohol by volume,
but not more than five per cent (5%) of alcohol
by weight as authorized by the laws of the United
States of America.
(b) Unfortified wines, as used in this article,
shall mean wines of an alcoholic content pro-
duced only by natural fermentation or by the ad-
dition of pure cane, beet, or dextrose sugar and
having an alcoholic content of not less than five
(5%) per centum and not more than fourteen
(14%) per centum of absolute alcohol, the per
centum of alcohol to be reckoned by volume.
(c) Fortified wines shall mean any other wine
or alcoholic beverage made by fermentation from
grapes, fruits and berries and fortified by the ad-
dition of brandy or alcohol thereto, and having
an alcoholic content of not less than fourteen
(14%) per centum and not more than twenty-
four (24%) per centum of absolute alcohol, reck-
oned by volume.
The term "person" used in this article shall
mean any individual, firm, partnership, associa-
tion, corporation, or other groups or combination
acting as a unit.
The term "sale" as used in this article shall in-
clude any transfer, trade, exchange or barter in
any manner or by any means whatsoever, for a
consideration. (1937, c. 127, s. 501, c. 249, s. 6.)
§ 3411(94). Regulations.— The beverages enu-
merated in section 3411(93) may be manufac-
tured, transported, or sold in this state in the
manner and under the regulations hereinafter set
out. (1937, c. 127, s. 502.)
§ 3411(95). Transportation. — The beverages
enumerated in section 3411(93) may be trans-
ported into, out of or between points in this
state by railroad companies, express companies or
by steamboat companies engaged in public serv-
ice as common carriers and having regularly es-
tainers, shall keep records open at all times for
inspection by the commissioner of revenue of this
state or his authorized agent, and upon condition
that such common carrier shall make report of
all shipments of such beverages into, out of or
between points in this state at such times and
in such detail and form as may be required by
the commissioner of revenue.
The beverages enumerated in section 3411(93)
may be transported into, out of or between points
in this state over the public highways of this
state by motor vehicles, upon condition that
every person intending to make such use of the
highways of the state shall as a prerequisite
thereto register such intention with the commis-
sioner of revenue in advance of such transporta-
tion, with notice of the kind and character of
such products to be transported and the license
and motor number of each motor vehicle intended
to be used in such transportation. Upon the fil-
ing of such information, together with an agree-
ment to comply with the provisions of this article,
the commissioner of revenue shall without charge
therefor issue a numbered certificate to such
owner or operator for each motor vehicle intended
to be used for such transportation, which num-
bered certificate shall be prominently displayed on
the motor vehicle used in transporting the prod-
ucts named in section 3411(93). Every person
transporting such products over any of the pub-
lic highways of this state shall, during the entire
time he is so engaged, have in his possession an
invoice or bill of sale or other record evidence,
showing the true name and address of the per-
son from whom he has received such beverages,
the character and contents of containers, the num-
ber of bottles, cases or gallons of such shipment,
the true name and address of every person to
whom deliveries are to be made. The person
transporting such beverages shall, at the request
of any representative of commissioner of revenue,
produce and offer for inspection said invoice or
bill of sale or record evidence. If said person
fails to produce invoice or bill of sale or record
evidence, or if, when produced, it fails to clearly
and accurately disclose said information, the same
shall be prima facie evidence of the violation of
this article. Every person engaged in transport-
ing such beverages over the public highways of
this state shall keep accurate records of the char-
acter and volume of such shipments, the char-
acter and number of packages or containers, shall
keep records open at all times for inspection by
the commissioner of revenue of this state, or his
authorized agent, and upon condition that such
person shall make report of all shipments of such
beverages into, out of, or between points in this
state at such times and in such detail and form as
may be required by the commissioner of revenue.
The purchase, transportation and possession of
beverages enumerated in section 3411(93) by in-
dividuals for their own use is permitted without
restriction or regulation. The provisions of this
section as to transportation of beverages enu-
merated in section 3411(93) by motor vehicles
over the public highways of this state shall in like
tablished schedules of service, upon condition manner apply to the owner or operator of any
that such companies shall keep accurate records boat using the waters of this state for such trans-
of the character and volume of such shipments, portation, and all of the provisions of this section,
[103]
§ 3411(96)
REGULATION OF INTOXICATING LIQUORS
§ 3411(101)
with respect to permit for such transportation
and reports to the commissioner of revenue by the
operators of motor vehicles on public highways,
shall in like manner apply to the owner or oper-
ator of any boat using the waters of this state.
(1937, c. 127, s. 503.)
§ 3411(96). Manufacture. — The brewing or
manufacture of beverages for sale enumerated in
section 3411(93) shall be permitted in this state
upon the payment of an annual license tax to the
commissioner of revenue in the sum of five hun-
dred dollars ($500.00) for a period ending on the
next succeeding thirtieth day of April and annu-
ally thereafter. Persons licensed under this sec-
tion may sell such beverages in barrels, bottles,
or other closed containers only to persons li-
censed under the provisions of this article for re-
sale, and no other license tax shall be levied upon
the business taxed in this section. The sale of
malt, hops, and other ingredients used in the man-
ufacture of beverages for sale enumerated in sec-
tion 3411(93) are hereby permitted and allowed:
Provided, that any person engaged in the busi-
ness of manufacturing in this state the wines de-
scribed in section 3411(93) (b) shall be required
to pay an annual license tax of two hundred fifty
dollars ($250.00). Nothing in this article shall be
construed to impose any tax upon any resident
citizen of this state who makes native wine for the
use of himself, his family and guests from fruits,
grapes and berries cultivated or grown wild up-
on his own land. (1937, c. 127, s. 504, c. 249,
s. 7.)
§ 3411(97). Bottler's license. — Any person who
shall engage in the business of receiving ship-
ments of the beverages enumerated in section
3411(93) (a), in barrels or other containers, and
bottling the same for sale to others for resale,
shall pay an annual license tax of two hundred
fifty dollars ($250.00) ; and any person who shall
engage in the business of bottling the beverages
described in section 3411(93) (b) or (c), or both,
shall pay an annual license tax of two hundred
fifty dollars ($250.00): Provided, however, that
any person engaged in the business of bottling
the beverages described in section 3411(93) (a)
and also the beverages described in section 3411-
(93) (b) and (c), or either, shall pay an annual
license tax of four hundred dollars ($400.00). No
other license tax shall be levied upon the busi-
nesses taxed in this section, but licensees under
this section shall be liable for the payment of the
taxes imposed by section 3411(109) in the manner
therein set forth. (1937, c. 127, s. 505, c. 249,
s. 8.)
§ 3411(98). Wholesaler's license. — License to
sell at wholesale, which shall authorize licensees
to sell beverages described in section 3411(93)
(a) in barrels, bottles, or other containers, in
quantities of not less than one case or container
to a customer, shall be issued as a state-wide li-
cense by the commissioner of revenue. The an-
nual license under this section shall be one hun-
dred and fifty dollars ($150.00) and shall expire
on the next succeeding thirtieth day of April.
The license issued under this section shall be rev-
ocable at any time by the commissioner of rev-
enue for failure to comply with any of the condi-
tions of this article with respect to the character
of records required to be kept, reports to be made
or payment of other taxes hereinafter set out.
Licensees to sell at wholesale the beverages de-
scribed in section 3411(93) (b) and (c), or either
shall pay an annual license tax of one hundred
fifty dollars ($150.00): Provided, that a licensee
to sell at wholesale the beverages described in
section 3411(93) (a) and the beverages described
in section 3411(93) (b) and (c), or either, shall
pay an annual license tax of two hundred fifty
dollars ($250.00).
If any wholesaler maintains more than one place
of business or storage warehouse from which or-
ders are received or beverages are distributed a
separate license shall be paid for each separate
place of business or warehouse.
The owner or operator of every distributing
warehouse selling, distributing or supplying to re-
tail stores beverages enumerated in section 3411-
(93) shall be deemed wholesale distributors with-
in the meaning of this article, and shall be liable
for the tax imposed in this section, and shall com-
ply with the conditions imposed in this article
upon wholesale distributors of beverages with re-
spect to payment of taxes levied in this article and
bond for the payment of such taxes. (1937, c.
127, s. 506, c. 249, s. 9.)
§ 3411(99). Sales on railroad trains. — The sale
of beverages enumerated in section 3411(93) shall
be permitted on railroad trains in this state to be
sold only in dining cars, buffet cars, Pullman cars,
or club cars, and for consumption on such cars
upon payment to the commissioner of revenue of
one hundred dollars ($100.00) for each railroad
system over which such cars are operated in this
state, for an annual state-wide license expiring on
the next succeeding thirtieth day of April. No
other license shall be levied upon licensees under
this section, but every licensee under this section
shall make a report to the commissioner of rev-
enue on or before the tenth day of each calendar
month covering sales for the previous month and
payment of the tax on such sales at the rate of
tax levied in this article. (1937, c. 127, s. 507.)
§ 3411(100). Salesman's license. — License for
salesmen, which shall authorize the licensee to
offer for sale within the state or solicit orders for
the sale of within the state, beverages enumerated
in this article, shall be issued by the commissioner
of revenue upon the payment of an annual license
tax of twelve dollars and fifty cents ($12.50) to
the commissioner of revenue, such license to ex-
pire on the next succeeding thirtieth day of April.
License to salesmen shall be issued only upon the
recommendation of the vendor whom they rep-
resent, and no other license tax shall be levied
under this section. (1937, c. 127, s. 508.)
§ 3411(101). Character of license. — License is-
sued under authority of section 3411(93) (a) shall
be of two kinds:
(1) "On premises" license which shall be is-
sued for bona fide restaurants, cafes, cafeterias,
hotels, lunch stands, drug stores, filling stations,
grocery stores, cold drink stands, tea rooms, or
incorporated or chartered clubs. Such license
shall authorize the licensee to sell at retail bev-
erages for consumption on the premises desig-
nated in the license, and to sell the beverages in
[ 104 ]
§ 3411(101)a
REGULATION OF INTOXICATING LIQUORS
§ 3411(104)
original packages for consumption off the prem-
ises.
(2) "Off premises" license which shall author-
ize the licensee to sell at retail beverages for con-
sumption only off the premises designated in the
license, and only in the immediate container in
which the beverage was received by the licensee.
In a municipality the governing board of such
municipality shall determine whether an appli-
cant for license is entitled to a "premises" license
under the terms of this article, and outside of mu-
nicipalities such determination shall be by the
board of commissioners of the county. (1937, c.
127, s. 509.)
§ 3411(101)a. Retail license issued for sale of
wines. — License issued under authority of section
3411(93) (b) and (c) shall be of two kinds:
"On premises" licenses shall be issued to bona
fide hotels, cafeterias, cafes and restaurants, and
shall authorize the licensees to sell at retail for
consumption on the premises designated in the li-
cense: Provided, no such license shall be issued
except to hotels, cafeterias, cafes and restaurants
where prepared food is customarily sold, and to
such only as are licensed under the provisions of
section 7880(58), and which, at the time of the ap-
plication for such license, have been given a grade
A rating by the state department of health.
2. "Off premises" licenses shall authorize the
licensee to sell said beverages at retail for con-
sumption off the premises designated in the li-
cense, and all such sales shall be made in the im-
mediate container in which the beverage was
purchased by the licensee, and every such con-
tainer shall have the tax stamp displayed thereon,
as provided in section 3411(109). (1937, c. 249,
s. 10.)
§ 3411(102). Amount of retail license tax.— The
license tax to sell at retail under section 3411(93)
(a) for municipalities shall be:
(1) For "on premises" license, fifteen dollars
($15.00).
(2) For "off premises" license, ten dollars
($10.00).
The license tax to sell at retail under section
3411(93) (b) or (c), or both, shall be:
(1) For "on premises" license, fifteen dollars
($15.00).
(2) For "off premises" license, ten dollars
($10.00).
The rate of license tax levied in this section
shall be for the first license issued to one person
and for each additional license issued to one per-
son an additional tax of ten per cent (10%) of
the base tax, such increase to apply progressively
for each additional license issued to one person.
(1937, c. 127, s. 510, c. 249, s. 11.)
§ 3411(103). Who may sell at retail. — Every
person making application for license to sell at
retail beverages enumerated in section 3411(93),
if the place where such sale is to be made is with-
in a municipality, shall make application first to
the governing board of such municipality, and the
application shall contain:
(1) Name and residence of the applicant and
the length of his residence within the state of
North Carolina.
(llA) That state, county, or city shall not is-
sue license under this article to any person, firm,
or corporation who has not been a bona fide resi-
dent of North Carolina for one year.
That no resident of the state shall obtain a li-
cense under this article and employ or receive aid
from a non-resident for the purpose of defeating
the above section.
The penalty for violating item one and one-
half shall be a misdemeanor. All persons con-
victed shall be imprisoned not more than thirty
days, nor fined more than two hundred dollars
($200.00).
(2) The particular place for which the license
is desired, designating the same by a street and
number, if practicable; if not, by such other apt
description as definitely locates him.
(3) The name of the owner of the premises up-
on which the business licensed is to be carried on.
(4) That the applicant intends to carry on the
business authorized by the license or himself
or under his immediate supervision and direction.
(5) A statement that the applicant is a citizen
and resident of the state of North Carolina and
not less than twenty-one years of age, that such
applicant is of good moral character and has
never been convicted of a felony involving moral
turpitude or adjudged guilty of violating the pro-
hibition laws, either state or federal, within the
last two years prior to the filing of the applica-
tion. The application must be verified by the af-
fidavit of the petitioner made before a notary
public or other person duly authorized by law to
administer oath. If it appear from the state-
ment of applicant or otherwise that such appli-
cant has been convicted of a felony involving
moral turpitude or adjudged guilty of violating
the prohibition laws, either state or federal,
within the last two years prior to the filing of the
application, or within two years from the com-
pletion of sentence, such license shall not be
granted, and it shall afterwards appear that any
false statement is knowingly made in any part
of said application and license received thereon,
the license of the applicant shall be revoked and
the applicant subjected to the penalty provided
by law for misdemeanors. Before any such li-
cense shall be issued, the governing body of the
municipality shall be satisfied that statements re-
quired by sub-sections (1), (2), (3), (4), and
(5) of this section are true. (1937, c. 127, s. 511.)
§ 3411(104). County license to sell at retail. —
License to sell at retail shall be issued by the
board of commissioners of the county, and ap-
plication for such license shall be made in the
same manner and contain the same information
set out in the preceding section with respect to
municipal license. If the application is for li-
cense to sell within a municipality, the application
must also show that license has been granted the
applicant by the governing board of such mu-
nicipality. The granting of a license by the gov-
erning board of a municipality shall determine
the right of an applicant to receive a county li-
cense upon compliance with the conditions of this
article.
If the application is for license to sell outside
of a municipality within the county, the appli-
cation shall also show the distance to the near-
est church or public or private school from the
place at which the applicant purposes to sell at
retail. No license shall he granted to sell within
[105]
§ 3411(105)
REGULATION OF INTOXICATING LIQUORS
§ 3411(100)
three hundred feet of any public or private school
buildings or church building outside of incorpo-
rated cities and towns: Provided, the restriction
set forth in this sentence shall not apply to unin-
corporated towns and villages having police pro-
tection.
The clerk of the board of commissioners of each
county shall make prompt report to the commis-
sioner of revenue of each license granted by the
board of commissioners of such county. The
county license fee shall be fixed at twenty-five
dollars ($25.00) for the sale of beverages de-
scribed in section 3411(93) (a), and twenty-five
dollars ($25.00) for the sale of beverages de-
scribed in section 3411(93) (b) and (c), and the
same shall be placed in the county treasury, for
the use of the county. (1937, c 127, s. 512, c. 249,
s. 12.)
§ 3411(105). Issuance of license mandatory;
sales during religious services. — It shall be man-
datory that the governing body of a municipal-
ity or county issue license to any person applying
for the same when such person shall have com-
plied with the requirements of this article: Pro-
vided, no person shall dispense beverages herein
authorized to be sold within fifty feet of a church
building in an incorporated city or town, or in
a city or town having police protection, whether
incorporated or not, while religious services are
being held in such church, or within three hun-
dred feet of a church building outside the incor-
porate limits of a city or town while church serv-
ices are in progress. (1937, c. 127, s. 513.)
§ 3411(106). Revocation of license.— If any li-
censee violates any of the provisions of this arti-
cle or any rules and regulations under authority
of this article, or fails to superintend in person
or through a manager the business for which the
license was issued, or allows the premises with
respect to which the license was issued to be used
for any unlawful, disorderly, or immoral purposes,
or knowingly employs in the sale or distribution
of beverages any person who has been convicted
of a felony involving moral turpitude or adjudged
guilty of violating the prohibition laws within
two years, or otherwise fails to carry out in good
faith the purposes of this article, the license of
any such person may be revoked by the govern-
ing board of the municipality or by the board of
county commissioners after the licensee has been
given an opportunity to be heard in his defense.
Whenever any person, being duly licensed under
this article, shall be convicted of the violation of
any of the prohibition laws on the premises here-
in licensed, it shall be the duty of the court to
revoke said license. Whenever any license which
has been issued by any municipality, any board
of county commissioners, or by the commissioner
of revenue has been revoked, it shall be unlawful
to reissue said license for said premises to any
person for a term of six months after the revo-
cation of said license. (1937, c. 127, s. 514.)
§ 3411(107). State license. — Every person who
intends to engage in the business of retail sale
of the beverages enumerated in section 3411(93)
(a) shall also apply for and procure a state license
from the commissioner of revenue.
For the first license issued to each licensee five
dollars ($5.00), and for each additional license is-
sued to one person an additional tax of ten per
cent (10%) of the five dollars base tax. That is
to say, that for the second license issued the tax
shall be five dollars and fifty cents ($5.50) annu-
ally, for the third license six dollars ($6.00) annu-
ally, and an additional fifty cents (50c) per annum
for each additional license issued to such person.
(1937, c. 127, s. 515.)
§ 3411(108). State license to sell wine at retail.
— Every person who intends to engage in the
business of selling wines as defined in section
3411(93) (b) and (c) shall procure a state license
for such business, which license shall in all cases
be issued under the same restrictions, rules and
regulations as set out in this article for the issu-
ance of license for the sale of beverages described
in section 3411(93) (a), and for which license the
following schedule of taxes is hereby levied:
(1) For "on premises" license, fifty dollars
($50.00).
(2) For "off premises" license, five dollars
($5.00).
Such retail license shall authorize the sale of
the beverages described in this section only on
the premises described in the license; and if the
same person operates more than one place at
which said beverages are sold at retail, he shall
obtain a license for each such place and pay there-
for the license tax provided in this section.
If the license issued to any person by any mu-
nicipality or county to sell the beverages referred
to in this article shall be revoked by the proper
officers of such municipality or county, or by any
court, it shall be the duty of the commissioner of
revenue to revoke the state license of such licen-
see; and in such event the licensee shall not be
entitled to a refund of any part of the license tax
paid.
It shall be unlawful for any wholesale licensee
to make any sale or delivery of the beverages de-
scribed in section 3411(93) (b) or (c) to any per-
son except persons who have been licensed to sell
such beverages at retail, as prescribed in this arti-
cle.
It shall be unlawful for any retail licensee to
purchase any of the beverages described in sec-
tion 3411(93) (b) or (c) from any person except
wholesale licensees maintaining a place of busi-
ness within this state and duly licensed under the
provisions of this article. (1937, c. 127, s. 516, c.
249, s, 13.)
§ 3411(109). Additional tax.— In addition to the
license taxes herein levied, a tax is hereby levied
upon the sale of the beverages enumerated in sec-
tion 3411(93) (a) of three dollars ($3.00) per bar-
rel of thirty-one gallons, or the equivalent of such
tax in containers of more or less than thirty-one
gallons, and in bottles or other containers of not
more than twelve ounces per bottle, a tax of one
cent (lc) per bottle.
In addition to the license taxes herein levied,
a tax is hereby levied upon the sale of beverages
described in section 3411(93) (b) of ten cents
(10c) per gallon, and in section 3411(93) (c) a
tax of thirty cents (30c) per gallon.
The taxes levied under this section shall be paid
through the use of wine revenue stamps, as here-
inafter provided, by affixing stamps of proper de-
nominations to the bottle or container in which
or from which said wines are normally sold at
[106]
§ 3411(110)
REGULATION OF INTOXICATING LIQUORS
§ 3411(112)
retail. The stamps shall be affixed by the manu-
facturer, winery, bottler, wholesaler or distribu-
tor in such a manner that their removal will re-
quire continued application of water or steam.
The commissioner of revenue shall design, issue,
sell, and distribute such stamps, of such denomi-
nations as are customary in the trade and as may
be necessary, and shall require of every manufac-
turer, winery, bottler, wholesaler, and distributor
that such stamps be purchased and affixed to each
and every bottle or container of wine sold within
this state. Stamps shall be sold by the commis-
sioner at a discount of five per cent (5%) as com-
pensation to the manufacturer, winery, bottler,
wholesaler, or distributor for affixing stamps to
containers. Stamps for container of more or less
than one gallon shall be proportioned to the tax
levied in this section upon the several classes of
wine defined in section 3411(93) (b) and (c), re-
spectively, but the stamp on any single package
shall not be less than one cent (lc).
It shall be unlawful for any dealer, either
wholesale or retail, to have exposed for sale or in
his possession, either in storage or on display, any
wines taxable under this article without having
attached to each bottle or other container the
proper stamp indicating the payment of the tax
herein levied, and in addition to other penalties
for violation of this provision it shall be lawful for
the department of revenue through any of its au-
thorized agents, to confiscate any stock on hand,
on display, or in storage, of any dealer who has
not complied with the provisions of this section.
The taxes levied in this section are in addition to
the taxes levied in Schedule E [§ 7880(156)a et
seq.] of this act. (1937, c. 127, s. 517, c. 249,
s. 14.)
§ 3411(110). Tax payable by wholesale distribu-
tors.— The tax levied in the preceding section
shall be paid to the commissioner of revenue by
the wholesale distributor or bottler of such bev-
erages. The tax herein levied shall be paid by
every wholesale distributor or bottler on or before
the tenth day of each month for all beverages sold
within the preceding month. As a condition pre-
cedent to the granting of license by the commis-
sioner of revenue to any wholesale distributor or
bottler of beverages under this article, the com-
missioner of revenue shall require each such
wholesale distributor or bottler to furnish bond
in an indemnity company licensed to do business
under the insurance laws of this state in such sum
as the commissioner of revenue shall find ade-
quate to cover the tax liability of each such whole-
sale distributor or bottler, proportioned to the
volume of business of each such wholesale dis-
tributor or bottler, but in no event to be less than
one thousand dollars ($1,000.00) or to deposit
federal, state, county, or municipal bonds in re-
quired amounts, such county or municipal bonds
to be approved by the commissioner of revenue.
The commissioner of revenue may grant such ex-
tension of time for compliance with this condition
as may be found to be reasonable. (1937, c. 127,
s. 518.)
§ 341 1(1 10) a. Non-resident manufacturers and
wholesale dealers to be licensed. — From and after
April thirtieth, one thousand nine hundred thirty-
seven, every non-resident desiring to engage in
the business of making sales of the beverages de-
scribed in section 3411(93) to wholesale dealers
licensed under the provisions of this article, shall
first apply to the commissioner of revenue for a
permit so to do. The commissioner of revenue
may require of every such applicant that a bond
in a sum not to exceed two thousand doliars
($2,000.00) be executed by such applicant and de-
posited with the commissioner, conditioned upon
the faithful compliance by such applicant with the
provisions of this article, and particularly that
such applicant shall not make sales of any of the
beverages described in section 3411(93) to any
person in this state except a duly licensed whole-
sale dealer. Upon the payment of a license tax
of one hundred fifty dollars ($150.00), if the com-
missioner is satisfied that said applicant is a bona
fide manufacturer or distributor of the beverages
defined in section 3411(93), he shall then issue a
permit to such applicant which shall bear a serial
number. Every holder of such non-resident per-
mit and license shall thereafter put the number
of such permit on every invoice for any quantity
of beverages sold by such licensee to any whole-
sale dealer in North Carolina. Upon the failure
of any such licensee to comply with all the pro-
visions of this article the commissioner of reve-
nue may revoke such permit or license.
Any resident manufacturer licensed under sec-
tion 3411(96) shall not be required to post the
bond required by this section. (1937, c. 249, s. 15.)
§ 3411(111). Payment of tax by retailers.— The
granting of license by any municipality or county
under this article to any person to sell at retail
the beverages enumerated under section 3411(93)
shall not be a valid license for such sale at retail
until such person shall have filed with the com-
missioner of revenue a bond in a surety company
licensed by the insurance department to do busi-
ness in this state in such sum as the commis-
sioner of revenue may find to be sufficient to
cover the tax liability of every such person, but
in no event to be less than one thousand dollars
($1,000.00). The commissioner of revenue may
waive the requirement of this section for indem-
nity bond with respect to any such person who
may file a satisfactory contract or agreement with
the commissioner of revenue that such person will
purchase and sell beverages enumerated in section
3411(93) only from wholesale distributors or bot-
tlers licensed by the commissioner of revenue un-
der this article who pay the tax under section
3411(109) upon all such beverages sold to retail
dealers in this state. The violation of the terms
of any such contract or agreement between any
such retail dealer and the commissioner of reve-
nue, by the purchase or sale of any of the bev-
erages enumerated in section 3411(93) from any
one other than a licensed wholesale distributor
or bottler under this article shall automatically
cancel the license of any such retail dealer and
shall be prima facie evidence of intent to defraud,
and any person guilty of violation of any such
contract or agreement shall be guilty of a misde-
meanor. (1937, c. 127, s. 519, c. 249, s. 16.)
§ 3411(112). Tax on spirituous liquors. — In ad-
dition to other taxes levied in this article, and in
lieu of taxes levied in Schedule E of this act [§
7880(156)a et seq.] on the sale of spirituous liq-
uors, there is hereby levied a tax of seven (7%)
per cent on the retail price of distilled liquors of
[107]
§ 3411(113)
REGULATION OF INTOXICATING LIQUORS
§ 3411(121)
every kind that may be sold in this state, includ-
ing liquors sold in county liquor stores. The
taxes levied in this section shall be payable
monthly, at the same time and in the same man-
ner as taxes levied in Schedule E of this act, and
the liability for such tax shall be subject to all
the rules, regulations and penalties provided in
Schedule E and in other sections of this act for
the payment of taxes. One-fourteenth of the
taxes collected under this section are intended to
pay the necessary expenses of the state alcohol
control board, if such board shall be set up by act
of this general assembly, and for other necessary
expenses in connection with the enforcement of
such laws as may be enacted by this general as-
sembly for the sale of alcoholic liquors and to
meet such appropriations there is hereby appro-
priated and made available for the purposes
above set forth one-fourteenth of the amount of
taxes collected under this section, such sum to be
allocated for such purpose by the director of the
budget upon request of the state alcohol control
board and expended and accounted for as other
state funds, and the director of the budget is
hereby given authority to estimate the revenues
to be received under this section, to the end that
a sufficient sum shall be made available for the
purpose of defraying the expenses of the state
alcohol control board until sufficient revenues
have been collected as provided hereunder for
said purposes: Provided, this section shall have
no effect until and unless there is a state alcohol
control board set up by the passage of an act of
the present general assembly providing for county
option control of liquor.
Spirituous liquors, as referred to in this section,
shall be deemed to include any alcoholic beverages
containing an alcoholic content of more than
twenty-four per cent (24%) by volume. (1937,
C. 127, s. 519^, c. 249, ss. 17, 18^.)
§ 3411(113). Books, records, reports. — Every
person licensed under any of the provisions of
this article shall keep accurate records of pur-
chase and sale of all beverages taxable under
this article, such records to be kept separate from
all purchases and sales of merchandise taxable
under this article, including a separate file and
record of all invoices. The commissioner of
revenue, or any authorized agent, shall at any
time during business hours have access to such
records. The commissioner of revenue may also
require regular or special reports to be made by
every such person, at such times and in such form
as the commissioner may require. (1937, c. 127,
s. 520.)
§ 3411(114). No license for sales upon school
property. — No license shall be issued for the sale
of beverages enumerated in section 3411(93) up-
on the campus or property of any public or pri-
vate school or college in this state. (1937, c.
127, s. 521.)
§ 3411(115). License shall be posted. — Each
form of license required by this article shall be
kept posted in a conspicuous place at each place
where the business taxable under this article is
carried on, and a separate license shall be re-
quired for each place of business. (1937, c. 127,
s. 522.)
§ 3411(116). Administrative provisions. — The
commissioner of revenue and the authorized
agents of the state department of revenue shall
have and exercise all the rights, duties, powers,
and responsibilities in enforcing this article that
are enumerated in the act of the general assem-
bly known as the Revenue Act in administering
taxes levied in Schedule B [§ 7880(30) et seq.] of
said Act. (1937, c. 127, s. 523.)
§ 3411(117). Appropriation for administration.
— For the efficient administration of this article
an appropriation is hereby made for the use of
the department of revenue in addition to the ap-
propriation in the Appropriation Bill of a sum
equal to three per cent (3%) of the total revenue
collections under this article to be expended un-
der allotments made by the budget bureau of
such part of the whole of such appropriation as
may be found necessary for the administration
of this article. The budget bureau may estimate
the yield of revenue under this article and make
advance apportionment based upon such estimate,
and to provide for the necessary expense of pro-
viding materials, supplies, and other expenses
needful to be incurred prior to the beginning of
the next fiscal year, July first, one thousand nine
hundred thirty-seven, the budget bureau may
make such advance allotment from such estimate
of revenue yield as it may find proper for the con-
venient and efficient administration of this article.
(1937, c. 127, s. 524.)
§ 3411(118). Violation made misdemeanor;
revocation of permits; forfeiture of license. —
Whosoever violates any of the provisions of this
article, or any of the rules and regulations pro-
mulgated pursuant thereto, shall be guilty of a
misdemeanor, and upon conviction thereof be
punished by a fine or by imprisonment, or by both
fine and imprisonment, in the discretion of the
court. If any licensee is convicted of the viola-
tion of the provisions of this article, or any of
the rules and regulations promulgated pursuant
thereto, the court shall immediately declare his
permit revoked, and notify the county commis-
sioners accordingly, and no permit shall there-
after be granted to him within a period of three
years thereafter. Any licensee who shall sell or
permit the sale on his premises or in connection
with his business, or otherwise, of any alcoholic
beverages not authorized under the terms of this
article, unless otherwise permitted by law, shall,
upon conviction thereof, forfeit his license in ad-
dition to any punishment imposed by law for such
offense. (1937, c. 127, s. 525.)
§ 3411(119). Conflicting laws repealed. — All
laws and clauses of laws in conflict with this ar-
ticle, and including the provisions of Senate Bill
three hundred sixty-seven, ratified on the fifth
day of April, one thousand nine hundred thirty-
three [§§ 3411(dd)-3411(mm)], if any such are in
conflict, are hereby repealed. (1937, c. 127, s. 527.)
§ 3411(120). Effective date.— All taxes levied
in this article shall be in effect from and after
April thirtieth, one thousand nine hundred thirty-
seven. (1937, c. 127, s. 528.)
Art. 16. Manufacture, etc., of Wines
§ 3411(121). Manufacture, sale, transportation
and importation of wines legalized; adoption of
r los]
§ 3449
ROADS AND HIGHWAYS
§ 3769
federal regulations. — The manufacture, sale, trans-
portation and importation in North Carolina of
wines as defined in and licensed to be sold by
sub-sections (b) and (c) of section 3411(93), and
all acts supplementary thereof, are hereby in all
respects legalized subject to the terms, conditions
and regulations as set forth in sections 3411(92)-
3411 (120), and all acts supplementary to and
amendatory thereof. The "Standards of Identity
for Wine" and the regulations relating to ''Label-
ing and Advertising of Wine" promulgated by
the Federal Alcohol Administration of the United
States Treasury Department, and known respec-
tively as Regulation Number Four, Article II,
and Regulation Number Four, Articles III and
VI, are hereby adopted by North Carolina, and
incorporated and made a part of this section.
(1937, c. 335.)
CHAPTER 67
RAILROADS AND OTHER CARRIERS
Art. 5. Powers and Liabilities
§ 3449. Obstructing highways; defective cross-
ings; failure to repair after notice misdemeanor.
Cited in Cashatt v. Brown, 211 N. C. 367, 190 S. F- 480.
Art. 9. Railroad Police
§ 3483. Railway conductors and station agents
declared special police.
For article discussing arrest without a warrant, see IS
N. C. Law Rev., No. 2, p. 101.
Art. 13. Pipe Line Companies
§ 3542(d). Right of eminent domain conferred
upon pipe line companies; other rights. — Any pipe
line company transporting or conveying natural
gas, gasoline, crude oil, or other fluid substances
by pipe line for the public for compensation, and
incorporated under the laws of the state of North
Carolina, may exercise the right of eminent do-
main under the provisions of chapter thirty-three
of the Consolidated Statutes of North Carolina
and acts amendatory thereof (§ 1705 et seq.), and
for the purpose of constructing and maintaining
its pipe lines and other works shall have all the
rights and powers given railroads and other cor-
porations by chapters thirty-two and sixty-seven
of the Consolidated Statutes of North Carolina
of one thousand nine hundred and nineteen and
acts amendatory thereof (§§ 1695 et seq. and 3412
et seq.), provided the pipe lines of such companies
transporting or conveying natural gas. gasoline,
crude oil, or other fluid substances shall originate
within this state. Nothing herein shall prohibit
any such pipe line company granted the right of
eminent domain under the laws of this state from
extending its pipe lines from within this state into
another state for the purpose of transporting
natural gas into this state, nor to prohibit any
such pipe line company from conveying or trans-
porting natural gas, gasoline, crude oil, or other
fluid substances from within this state into an-
other state. All such pipe lines companies shall
be deemed public service companies and shall be
subject to the laws of this state regulating such
corporations. (1937, c. 280.)
Editor's Note.— Both chapters 108 and 280 of the Public
I,aws 1937, apply only to pipe lines originating in North
Carolina. Chapter 108 amends § 1706. The legislature fore-
saw a possible holding invalidating the restriction of the
act to pipe lines "originating in North Carolina," and spec-
ified in chapter 108 that such a holding should not invali-
date the provision or clause containing the words, but
merely remove the restriction. No such provision was made
in chapter 280. These two chapters, neither referring to
the other, covering the same subject in diverse fashion, in-
troduce needless complexity into the law, and illustrate
again the need for a more effective agency to draft and co-
ordinate legislation. 15 N. C. Law Rev., No. 4, p. 364.
CHAPTER 68
REGISTER OF DEEDS
Art. 1. The Office
§ 3543(1). Four-year term for registers of
deeds; counties excepted. — At the general elec-
tion for the year one thousand nine hundred and
thirty-six and quadrennially thereafter there shall
be elected in each county of this state by the
qualified voters thereof a register of deeds, who
shall serve for a term of four years from the first
Monday in December after his election and until
his successor is elected and qualified: Provided,
however, that this section shall not apply to Alle-
ghany, Alexander, Ashe, Avery, Beaufort, Bladen,
Clay, Davidson, Halifax, Harnett, Haywood,
Hyde, Iredell, Jackson, Johnston, Macon, Mitchell,
Orange, Rowan, Swain, Transylvania, Vance,
Washington, Yadkin, Cherokee, Dare, Lincoln,
and Moore counties. (1935, cc. 362, 392, 462;
1937, c. 271.)
Editor's Note. — The 1937 amendment struck out Stanly
from the list of counties excepted from the operation of this
section.
§ 3545. Bond required.
What Amounts to Breach of Bond. — Failure of the regis-
ter of deeds to register written instruments properly pre-
sented or failure to properly index and cross-index them
is a breach of the bond required by this section. Bank
of Spruce Pine v. McKinney, 209 N. C. 668, 184 S. F- 506.
Art. 2. The Duties
§ 3553. Registration of instruments.
Indexing and Cross- Indexing Is Essential to Proper Reg-
istration.— The indexing and cross -indexing of deeds or other
instruments in writing filed with a register of deeds for
registration, as required by this section, is essential to their
proper registration. Bank of Spruce Pine v. McKinney, 209
N. C. 668, 672, 184 S'. F. 506.
§ 3555. Liability for failure to register.
Failure to Properly Index and Cross- Index Is a Breach of
Bond. — The failure of the register of deeds to register in-
struments properly presented or his failure to properly in-
dex and cross -index them is a breach of his statutory bond,
§ 3545, for which he and the surety on his bond are liable
to the person injured by such breach under this section.
Bank of Spruce Pine v. McKinney, 209 N. C. 668, 184 S.
F- 506.
CHAPTER 70
ROADS AND HIGHWAYS
Art. 9. Construction and Maintenance; of Roads
and Bridges
Part 2. Bonds and Taxes for Roads and Bridges
in the State
§ 3767. Erection and maintenance of roads and
bridges; county-line bridges.
Cited in Carteret County v. Sovereign Camp, W. O. W.,
78 F. (2d) 337.
§ 3769. Special tax to provide for bonds.
A sufficient reason for not requiring the issuance of exe-
cution on a judgment on county road and bridge bonds as a
[ 109
§ 3838(b)
ROADS AND HIGHWAYS
§ 3846 (bb)
prerequisite to an application for mandamus is that the law
under which the bonds in judgment were issued requires
the county commissioners to levy a tax for their payment.
Carteret County v. Sovereign Camp, W. O. W., 78 F. (2d)
337, 338.
It would be unreasonable to require a bondholder to levy
execution upon property alleged to belong to the county,
when the law under which the bonds were issued provides
a simple method of payment if the officers of the county
will but perform their plain duty under the law. Id.
Art. 13. Cartways, Church Roads, and the Like
§ 3838(b). Neighborhood public roads.
Persons living along a highway which had been taken
over by the State Highway Commission, and subsequently
abandoned by it, are "interested citizens" within the mean-
ing of this section, and may maintain a proceeding to have
the road established as a "neighborhood public road."
Grady v. Grady, 209 N. C. 749, 184 S. E. 512.
Art. 15. State Highway System (1921)
Part 1. In General
§ 3846(a). General purpose of law; control, re-
pair and maintenance of highways.
See note under § 7748(b).
Part lA. A Change of Systems
§ 3846 (e7). No court action but by local road
authorities.
Cited in Reed v. State Highway, etc., Comm., 209 N. C.
648, 184 S. E- 513.
Part 2. State Highway Commission
§ 3846 (j) Powers of commission. — i
(q) The state highway and public works com-
mission shall have authority to designate and ap-
propriately mark certain highways of the state
as truck routes, and any truck of a gross weight
in excess of three tons for each axle operating on
any highway in the state not designated by the
state highway and Public Works Commission as
a truck route shall at no time exceed a speed
limit of twenty miles per hour. Any person vio-
lating the provisions of this section shall be guilty
of a misdemeanor.
(r) The state highway and public works com-
mission shall have authority, under the power of
eminent domain and under the same procedure
as provided for the acquirement of rights-of-way,
to acquire title in fee simple to parcels of land for
the purpose of exchanging the same for other
real property to be used for the establishment of
rights-of-way or for the widening of existing
right-of-way or the clearing of obstructions that,
in the opinion of the commission, constitute dan-
gerous hazards at intersections. Real property
may be acquired for such purposes only when
the owner of the property needed by the com-
mission has agreed in writing to accept the prop-
erty so acquired in exchange for that to be used
by the commission, and when, in the opinion of
the commission, an economy in the expenditure
of public funds and the improvement and con-
venience and safety of the highway can be af-
fected thereby. (1921, c. 2, s. 10; 1923, c. 160, s. 1;
1923, c. 247; 1929, c. 138, s. 1; 1931, c. 145, ss. 21,
25; 1933, c. 517, s. 1; 1935, c. 213, s. 1, c. 301;
1937, c. 297, s. 2.)
See note under § 7748(b). As to authorizing use of county
prisoners on roads not within state systems, see § 1364(1).
Editor's Note. — The 1937 amendment added subsections (q)
and (r) to this section. The rest of the section, not being
affected by the amendment, is not set out here.
Public Laws 1937, c. 246, also amended this section by
adding a subsection (q), as follows: "Wherever there ex-
[1
ists two highways of the state system of approximately
equivalent construction, convenience and distance between
two or more points, the state highway and public works
commission shall have authority, when in the opinion of the
.commission the public interest is served thereby, to desig-
nate one of said roads for heavy or truck-line traffic be-
tween said points, and to prohibit the use of the other or
parallel road by heavy or truck-line traffic thereon; and in
such instances the roads selected for heavy or truck-line
traffic shall be so designated by signs conspicuously posted
thereon, and the roads upon which heavy or truck-line traf-
fic is prohibited shall likewise be so designated by signs
conspicuously posted thereon showing the maximum load
authorized for said roads. The operation of any vehicle
whose gross load exceeds the maximum load shown on such
signs over the road thus posted shall constitute a misde-
meanor: Provided, that nothing herein shall prohibit a
truck or other motor vehicle whose gross load exceeds that
prescribed for the light traffic roads from using said light
traffic road when the destination of said truck is located
solely upon said light traffic road: Provided further, that
nothing herein shall prohibit passenger or other light traffic
vehicles from using any road or roads so designated for
heavy or truck-line traffic."
Under Brown v. United States, 263 U. S. 78, 44 S. Ct.
92, 68 L. Ed. 171, and Dohany v. Rogers, 281 U. S. 362, 50
S. Ct. 299, 74 I.. E- 904, 68 A. L. R. 434, it is likely that the
taking of property for exchange purposes under the provi-
sions of subsection (r) would be held to be for a public use.
15 N. C. Law Rev., No. 4, p. 365.
Part 3. Construction, Maintenance, and Repair of
Highways
§ 3846 (bb). Acquirement of land and deposits
of materials; condemnation proceedings. —
The state highway and public works commis-
sion shall have the same authority and under the
same provisions of law hereinbefore provided for
construction of state highways for the acquire-
ment of all rights of way and easements necessary
to comply with the rules and regulations of the
United States government for the construction of
federal parkways in the state of North Carolina.
The acquirement of a total of one hundred and
twenty-five acres per mile of said parkways, in-
cluding roadwa}' and recreational and scenic
areas on either side thereof, shall be deemed a
reasonable area for said purpose. That the right
of way acquired or appropriated may, at the op-
tion of the commission, be a fee simple title, and
the nature and extent of the right of way and
easements so acquired or appropriated shall be
designated upon a map showing the location
across each county, and, when adopted by the
commission, shall be filed with the register of
deeds in each county, and, upon the filing of said
map, such title shall vest in the state highway and
public works commission. The said commission
is hereby authorized to convey such title so ac-
quired to the United States government, or its
appropriate agency, free and clear of all claims for
compensation. All compensation contracted to be
paid or legally assessed shall be a valid claim
against the state highway and public works com-
mission, payable out of the construction fund of
said commission. (1921, c. 2, s. 22; 1923, c. 160, s.
6; 1931, c. 145, s. 23; 1935, c. 2; 1937, c. 42.)
Editor's Note.— The 1937 amendment inserted the second
sentence of the above paragraph. As the rest of the section
was not affected by the amendment it is not set out in this
Supplement.
The amendatory act ratified the acquirement of areas for
Blue Ridge Parkway, prohibited cutting of timber from
areas under consideration and provided compensation for
temporary restraint.
Right to Just Compensation Where Evidence Is Insuffi-
cient to Show Taking Was for Private Purpose. — Where
there was no evidence upon the record showing that the
taking over of a road as part of the county system was
for a private purpose sufficient to raise an issue of fact,
10 1
§ 3846 (zz)
SALARIES AND FEES
§ 3857(a)
plaintiff is remitted to his rights under this section for the
recovery of just compensation. Reed v. State Highway,
etc., Coram, 209 N. C. 648, 184 S'. E. 513.
Applied in Calhoun v. State Highway, etc., Comm, 208
N. C. 424, 181 S. E. 271.
Art. 18. State Highway Patrol
§ 3846 (zz). Oath of office; bond.
See § 323(b).
§ 3846(mmm). Number of state highway patrol
increased; subordinate officers; salaries. — The
state highway patrol, created and existing by vir-
tue of chapter two hundred and eighteen of the
Public Laws of one thousand nine hundred and
twenty-nine, as amended [§§ 3846 (yy) -3846(111)]
shall consist of one person to be designated as
major, and such additional subordinate officers
and men as the commissioner of revenue, with the
approval of the governor and advisory budget
commission, shali direct. The captain [major],
other officers, and members of the state highway
patrol shall be paid such salary as may be estab-
lished and fixed under the provisions of chapter
two hundred seventy-seven, Public Laws of one
thousand nine hundred and thirty-one, and chap-
ter forty-six of the Public Laws of one thousand
nine hundred and thirty-three, codified as sec-
tions 7521(k) et seq. (1935, c. 324, s. 1; 1937,
c. 313, s. 1.)
§ 3846(mmm)l. Compliance with federal ap-
propriation statute authorized. — In order that the
state of North Carolina may receive the benefit
of the appropriation provided in Senate Bill num-
ber one hundred and five, introduced in the
United States 'Senate, January sixth, one thousand
nine hundred and thirty-seven, which authorizes
the secretary of agriculture to make available for
expenditure funds for the establishment and
maintenance of the state highway patrols in the
various states of the United States, the commis-
sioner of revenue, with the consent and ap-
proval of the governor and the council of state,
is hereby authorized to accept and comply with
the provisions of said act, if and when in the dis-
cretion of the governor and council of state it be-
comes necessary and proper to do so, in order
that the state of North Carolina may receive such
benefits as therein provided. (1937, c. 313, s. 2.)
Editor's Note. — Prior to the 1937 amendment the patrol
was limited to 121 persons, and the captain was the rank-
ing officer. While not specified in the amendment, it seems
that "major" should be substituted for "captain" in the
second sentence of this section.
§ 3846 (ooo). Additional duties and authority
of patrol; constituted peace officers; arrest power;
jurisdiction.
For article discussing arrest without a warrant, see IS
N. C. Law Rev., No. 2, p. 101.
Art. 19. Management of County Roads Vested in
State Highway Commission
§ 3846(1). County roads managed by state
highway commission; trustees of road districts
holding over; county commissioners.
Cited in Grady v. Grady, 209 N. C. 749, 184 S. E. 512.
§ 3846(7). Petition by county commissioners
to change or abandon roads or build new roads.
Under this section the county commissioners petitioned
that certain roads in the county be taken over as a part of
the county system. Plaintiff, owner of part of the land
involved, obtained a temporary injunction prohibiting the
taking over of the road, claiming the taking was for a
private and not a public purpose. The court found that
[11
the taking was for a public purpose, and dismissed the ac-
tion, it appearing from the pleadings that the proposed
road would give four families access to the county- seat and
that the road would constitute a part of a through scenic
highway. Reed v. State Highway, etc., Comm., 209 N. C.
648, 184 S. E. 513.
In taking over a road as a part of the highway system,
the scenic value of such road and its necessity as a part
of the system of scenic highways for the public may be
considered in determining whether taking over the road is
for a public or private purpose. Id.
CHAPTER 71
SALARIES AND FEES
Art. 2. Legislative Department
§ 3857(a). Compensation of employees of the
general assembly; mileage. — The principal clerk
of the general assembly and chief clerk appointed
by secretary of state in the enrolling office and
chief engrossing clerks of the house and senate
shall be allowed the sum of seven dollars per day
during the session of the general assembly, and
mileage at the rate of ten cents per mile from
their homes to Raleigh and return. The secre-
tary to the speaker of the house of representatives,
the secretary to the lieutenant-governor, the
clerks to the finance and appropriation com-
mittees of both houses, the sergeant-at-arms, the
assistants to the engrossing clerks, the assistant
clerks to the principal clerks and the assistant
sergeant-at-arms of the general assembly, and the
assistants appointed by the secretary of state to
supervise the enrollment of bills and resolutions,
the reading clerks of the general assembly, shall
receive the sum of six dollars per day, and
mileage at the rate of ten cents per mile from
their homes to Raleigh and return. The clerks
to all committees which by the rules of either
house of the general assembly are entitled to
clerks, except as hereinabove provided, shall each
receive five dollars per day during the session of
the general assembly, and mileage at the rate of
ten cents per mile from their homes to Raleigh
and return. The chief page of the house of rep-
resentatives and the senate shall receive four dol-
lars per day during the session of the general as-
sembly and mileage at the rate of five cents a mile
from their homes to Raleigh and return. All
other pages authorized by either of the two
houses shall receive three dollars per day during
the session of the general assembly and mileage
at the rate of five cents a mile from their homes
to Raleigh and return. All laborers of the first-
class authorized by law or the rules of either the
house of representatives or the senate shall re-
ceive three dollars and one-half per day during
the session of the general assembly and all mile-
age at the rate of five cents per mile from their
homes to Raleigh and return, and laborers of the
second class the sum of three dollars per day and
mileage at the rate of five cents per mile from
their homes to Raleigh and return. (1925, c. 72,
s. 1; 1929, c. 3, s. 1; 1933, c. 6, s. 1; 1937, cc 1,
272.)
Editor's Note.— The first 1937 amendment added the clerks
to the committees on appropriations and finance to the list
named in the second sentence. It also inserted the words
"except as herein above provided" in the third sentence.
The second 1937 amendment repealed the 1933 amendment
and re-enacted the 1929 amendment, except as to pay of
such clerks, which was raised to $6.00 per day, and pay of
ordinary pages which was raised from $2.50 to $3.00 per day.
1]
§ 3872
SALARIES AND FEES
§ 3908
Art. 3. Executive Department
§ 3872. Department of agriculture. — The salary
of the commissioner of agriculture shall be five
thousand dollars per annum, to be paid monthly
out of the receipts of the agricultural department.
(Rev., s. 2749; 1901, c. 479, s. 4; 1905, c. 529; 1907,
c. 887, s. 1; 1913, c. 58; 1921, c. 35, s. 1; 1933, c.
282, s. 5; 1935, c. 293; 1937, c. 415.)
Editor's Note.— The 1937 amendment increased the salary
by five hundred dollars.
§ 3874. Department of insurance. — The com-
pensation of the insurance commissioner shall be
six thousand ($6,000.00) dollars per annum, pay-
able monthly.
(1937, c. 342.)
Editor's Note.— Prior to the 1937 amendment the salary of
the commission as specified in the first sentence was $4,500
per annum. The rest of the section, not being affected by
the amendment, is not set out here.
§ 3877. Adjutant-general.— The salary of the
adjutant-general shall be five thousand dollars
per annum. The adjutant-general shall reside at
the state capital during his term of office. (Rev.,
s. 2750; Code, ss. 3275, 3730; 1899, c. 390, ss. 2, 3;
1879, c. 240, s. 10; 1883, c. 283, s. 2; 1907, c. 803, s.
1; 1911, c. 110, s. 1; 1915, c. 118; Ex. Sess. 1921..
c. 53; 1933, o. 282, s. 6; 1935, c. 293; 1937, c. 415.)
Editor's Note. — The 1937 amendment increased the salary
by five hundred dollars.
Art. 4. Judicial Department
§ 3884(a). Salaries of resigned or retired jus-
tices of supreme court and judges of superior
courts. — Every justice of the supreme court and
judge of the superior court who has heretofore
resigned or retired from office at the end of his
term, or who shall hereafter resign or retire at ex-
piration of his term, who has attained the age
of sixty-five (65) years at the date of his resigna-
tion or retirement, and who has served for fif-
teen (15) years on the supreme court or on the
superior court, or on the supreme and superior
courts combined or twelve consecutive years on
the supreme court, or who, having served one full
term on either the supreme or superior court, and
while still in active service thereon, shall have be-
come totally disabled through accident or disease
to carry on the duties of said office; or who by
reason of such accident, without fault on his part,
shall suffer such physical impairment as not to be
able to efficiently perform the duties of his office
and who retires at the end of his term, shall re-
ceive for life two-thirds (2/3) of the annual sal-
ary from time to time received by the justices of
the supreme court or judges of superior court,
respectively, payable monthly; provided, that any
such justice or judge, who has or shall have
served as such for twenty-five years or longer
(whether continuously or not), and whose seven-
tieth birthday shall occur within six months next
succeeding his resignation or retirement, shall be
entitled to all of the benefits of this section from
and after the date of his resignation or retirement,
and shall also be subject to the other provisions of
this section. The provisions herein as to the
amount of life-time pay shall relate back to and
become effective as of the fourth day of March,
one thousand nine hundred and twenty-one, and
the state treasurer is authorized and directed to
pay on the warrant of the state auditor the sal-
ary of any justice or judge as affected by such
provisions, less any amount heretofore paid.
(1921, c. 125, s. 1; Ex. Sess. 1921, c. 20, ss. 1, 2;
1927, c. 133, s. 201; 1935, cc. 233, 400; 1937, c. 199,
s. 1.)
Editor's Note. — The 1937 amendment, inserting the provi-
sion as to disability through accident or disease provides:
"The provisions of this amendatory act shall apply without
regard to the age of the judge or justice affected."
Art. 5. Solicitors, Jurors, and Witnesses
§ 3890(a) Appropriation for expenses. —
Each solicitor shall receive, in addition to the
salary named in section three thousand eight
hundred and ninety of the Consolidated Statutes
of North Carolina, the sum of five hundred
($500.00) dollars per annum, which will cover
all of his expenses while engaged in duties con-
nected with his office. Said sum shall be paid in
equal monthly installments out of the state
treasury upon warrant duly drawn thereon. (1923,
c. 157, s. 2; 1933, c. 78, s. 2; 1937, c. 348.)
Editor's Note. — This section,, first inserted by the act of
1923 and providing $750 for expenses, was repealed in 1933.
The present section was codified from the 1937 act.
§ 3893. Fees and mileage of witnesses.
Editor's Note.— Public Laws 1937, c. 240, provides that Pub-
lic Iyaws 1933, c. 40, amending this section by adding the
proviso abolishing witness fees for officers on salaries, shall
not apply to Iredell county.
Art. 7. County Officers
§ 3904(j). Certain counties not subject to sec-
tions 3904(c) -3904 (i). — Sections 3904(c) -3904(i)
shall not apply to the counties of: Cabarrus,
Chowan, Cleveland, Columbus, Franklin, Ire-
dell, Lincoln, Martin, Mecklenburg, Montgomery,
Moore, New Hanover, Pitt, Richmond, Robeson,
Rockingham, Surry, Union, Jackson, Swain, Bun-
combe, Rowan, Orange, Avery, Wayne, Nash,
Wilson, Bladen, Cumberland, Ashe, Edgecombe,
Tyrrell, Person, Duplin, Vance, Davie, Guilford,
Onslow, Washington, Alleghany, Haywood,
Davidson, Burke, Stokes, Franklin, Catawba, Le-
noir, Jones, Pamlico, Caldwell, Caswell. Pro-
vided that section 3904(c) shall apply to Iredell
county. (1935, c. 379, s. 8, c. 494; 1937, cc. 148,
149, 290.)
Editor's Note. — The 1937 amendments struck out Bertie
and Yancey from the list of counties in this section, and
added the proviso as to Iredell county.
§ 3907. Local modification as to fees of regis-
ters of deeds. —
In Montgomery county the register of deeds
shall receive, in addition to all other fees now
allowed by law for recording instruments au-
thorized to be registered, the sum of ten cents
each per name in excess of four, for cross-index-
ing such names which appear on all instruments
presented in his office and recorded therein.
(1937, c. 137.)
Editor's Note.— The 1937 amendment added the above pro-
vision to this section. The rest of the section, not being af-
fected by the amendment, is not set out here.
§ 3908. Sheriffs.
New Trial Awarded Where Number of Prisoners Conveyed
Is Not Shown.— Where, in an action by a sheriff to recover
compensation for transportation of prisoners under this sec-
tion, it does not appear from the facts agreed how many
prisoners were conveyed to jails in other counties by the
sheriff or how many miles such prisoners were conveyed,
a new trial will be awarded in order that the facts nec-
essary to a determination of the question may be found
and a proper adjudication made thereon. Patterson v.
Swain County, 208 N. C. 453, 181 S. E. 329.
[112]
§ 3909
UNIFORM PRINCIPAL AND INCOME ACT
§ 4035(2)
§ 3909. Local modifications as to fees of
sheriffs. —
The sheriff of Wayne county shall receive the
following fees, in addition to other fees allowed
by law, for services of the following processes:
For arrest fee for state warrant $ 2.00
For arrest fees for capias 2.00
Fees for claim and delivery 3.00
Fees for ejectment proceedings 2.00
Fees for service of executions on civil
judgments 2.00
(1937, c. 254.)
Editor's Note. — The 1937 amendment added the above
paragraph at the end of this section. The rest of the sec-
tion, not being affected by the amendment, is not set out
here.
Art. 8. Township Officers
§ 3923. Justice of the peace.
Editor's Note. — For schedule of fees in Wake and War-
ren counties, see Public laws 1937, chapters 136 and 187,
respectively.
CHAPTER 71A
SECURITIES LAW
§ 3924 (aa). Administration of Capital Issues
Law transferred to secretary of state. — All of the
authority, rights, powers, duties and functions
heretofore vested in the utilities commission and
the utilities commissioner by virtue of chapter
one hundred forty-nine, Public Laws one thou-
sand nine hundred twenty-seven, and amendments
thereto [§§ 3924(a)-3924(z)], relating to the sales
of ''stocks, bonds and other securities," known as
the "Capital Issues Law," are hereby transferred
to the secretary of state of the State of North
Carolina, who shall thenceforth perform all the
functions with relation to the subjects dealt with
in said chapter one hundred forty-nine, Public
Laws one thousand nine hundred twenty-seven,
and amendments thereto, in such a manner as pre-
scribed in said acts, and with as full authority as
if the said secretary of state had been originally
and specifically named therein. (1937, c. 194.)
CHAPTER 72
SHERIFF
Art. 3. Duties of Sheriff
§ 3936. Execute process; penalty for false re-
turn.
Where Sheriff's Motion for Non-Suit iProperly Granted.—
Plaintiffs instituted action against the sheriff and bondsman
for damages caused by alleged false return of summons.
The sheriff's return was regular upon its face, but each
plaintiff testified that service was not made on him, but
did not testify as to whether service was made on the
other plaintiff, and there was no evidence corroborating
plaintiffs' testimony. It was held that defendants' motion
for judgment as of non-suit was properly granted. Pen-
ley v. Rader, 208 N. C. 702, 182 S. E. 337.
CHAPTER 73
STATUTORY CONSTRUCTION
§ 3947(a). No public-local or private act may
amend or repeal public law unless latter is re-
ferred to in caption.
The citation to this section should read: (1929, c. 250,
s. 1.)
N. C. Supp.— 8
CHAPTER 78
TRUSTEES
Art. 1. Investment and Deposit of Trust Funds
§ 4018. Certain investments deemed cash.
Conceding that a bank breached its duty as trustee in
failing to sell certain stock for reinvestment under this
section, its wrongful act will not relieve the estate of the
statutory liability to the prejudice of depositors and cred-
itors of the bank, who had no notice of the terms of the
trust, and were entitled to regard the statutory liability
as additional security, and notice to the bank not being
notice to the depositors and other creditors, since the fact
of the establishment of the trust did not appear upon the
books of the bank. Hood v. North Carolina Bank, etc.,
Co., 209 N. C. 367, 184 &'. E. 51.
§ 4018(a). Investment of trust funds in county
bonds.
Cited, in dissenting opinion, in Hood v. North Carolina
Bank, etc., Co., 209 N. C. 367, 184 S. E. 51.
§ 4018(b). Investment in building, savings and
loan associations. —
Provided further, that such funds may be in-
vested in stock of any federal savings and loan
association organized under the laws of the United
States, upon approval of an officer of the Home
Loan Bank at Winston-Salem, or such other gov-
ernmental agency as may hereafter have super-
vision of such associations. (1933, c. 549, s. 1;
1937, c. 14.)
Editor's Note.— The 1937 amendment added the above pro-
viso at the end of this section. The rest of the section, not
being affected by the amendment, is not set out.
§ 4018(c). Investment in registered securities.
As to effect of section, see 13 N. C. law Rev., No. 4,
p. 386.
CHAPTER 78A
UNIFORM PRINCIPAL AND INCOME ACT
§ 4035(1). Definitions. — "Principal" as used in
this chapter means any realty or personalty which
has been so set aside or limited by the owner
thereof or a person thereto legally empowered that
it and any substitutions for it are eventually to be
conveyed, delivered or paid to a person, while the
return therefrom or use thereof or any part of
such return or use is in the meantime to be taken
or received by or held for accumulation for the
same or other person;
"Income" as used in this chapter means the re-
turn derived from principal;
"Tenant" as used in this chapter means the per-
son to whom income is presently or currently pay-
able, or for whom it is accumulated or who is en-
titled to the beneficial use of the principal presently
and for a time prior to its distribution;
"Remainderman" as used in this chapter means
the person ultimately entitled to the principal,
whether named or designated by the terms of the
transaction by which the principal was established
or determined by operation of law;
"Trustee" as used in this chapter includes the
original trustee of any trust to which the principal
may be subject and also any succeeding or added
trustee. (1937, c. 190, s. 1.)
§ 4035(2). Application of the chapter; powers of
settlor. — This chapter shall govern the ascertain-
ment of income and principal, and the apportion-
ment of receipts and expenses between tenants and
113 ]
§ 4035(3)
UNIFORM PRINCIPAL AND INCOME ACT
§ 4085(5)
remaindermen, in all cases where a principal has
been established with, or, unless otherwise stated
hereinafter, without the interposition of a trust;
except that in the establishment of the principal
provision may be made touching all matters cov-
ered by this chapter, and the person establishing
the principal may himself direct the manner of as-
certainment of income and principal and the ap-
portionment of receipts and expenses or grant dis-
cretion to the trustee or other person to do so, and
such provision and direction, where not otherwise
contrary to law, shall control notwithstanding this
chapter. (1937, c. 190, § 2.)
§ 4035(3). Income and principal; disposition. —
(1) All receipts of money or other property paid
or delivered as rent of realty or hire of personalty
or dividends on corporate shares payable other
than in shares of the corporation itself, or interest
on money loaned, or interest on or the rental or
use value of property wrongfully withheld or
tortiously damaged, or otherwise in return for the
use of principal, shall be deemed income unless
otherwise expressly provided in this chapter.
(2) All receipts of money or other property paid
or delivered as the consideration for the sale or
other transfer, not a leasing or letting, or property
forming a part of the principal, or as a repayment
of loans, or in liquidation of the assets of a cor-
poration, or as the proceeds of property taken on
eminent domain proceedings where separate awards
to tenant and remainderman are not made, or as
proceeds of insurance upon property forming a
part of the principal except where such insurance
has been issued for the benefit of either tenant or
remainderman alone, or otherwise as a refund or
replacement or change in form of principal, shall
be deemed principal unless otherwise expressly
provided in this chapter. Any profit or loss re-
sulting upon any change in form of principal shall
inure to or fall upon principal.
(3) All income after payment of expenses prop-
erly chargeable to it shall be paid and delivered to
the tenant or retained by him if already in his
possession or held for accumulation where legally
so directed by the terms of the transaction by
which the principal was established, while the
principal shall be held for ultimate distribution as
determined by the terms of the transaction by
which it was established or by law. (1937, c. 190,
s. 3.)
§ 4035(4). Apportionment of income. — When-
ever a tenant shall have the right to income from
periodic payments, which shall include rent, inter-
est on loans and annuities, but shall not include
dividends on corporate shares, and such right shall
cease and determine by death or in any other man-
ner at a time other than the date when such
periodic payments should be paid, he or his per-
sonal representative shall be entitled to that por-
tion of any such income next payable which
amounts to the same percentage thereof as the
time elapsed from the last due date of such periodic
payments to and including the day of the determi-
nation of his right is of the total period during
which such income would normally accrue. The
remaining income shall be paid to the person next
entitled to income by the terms of the transaction
by which the principal was established. But no
action shall be brought by the trustee or tenant to
[1
recover such apportioned income or any portion
thereof until after the day on which it would have
become due to the tenant but for the determination
of the right of the tenant entitled thereto. The
provisions of this section shall apply whether an
ultimate remainderman is specifically named or
not. Likewise when the right of the first tenant
accrues at a time other than the payment dates of
such periodic payments, he shall only receive that
portion of such income which amounts to the same
percentage thereof as the time during which he
has been so entitled is of the total period during
which such income would normally accrue; the
balance shall be a part of the principal. (1937, c.
190, s. 4.)
§ 4035(5). Corporate dividends and share rights.
— (1) All dividends on shares of a corporation
forming a part of the principal which are payable
in the shares of the corporation shall be deemed
principal. Subject to the provisions of this sec-
tion, all dividends payable otherwise than in the
shares of the corporation itself, including ordinary
and extraordinary dividends and dividends payable
in shares or other securities or obligations of cor-
porations, other than the declaring corporation,
shall be deemed income. Where the trustee shall
have the option of receiving a dividend, either in
cash or in the shares of the declaring corporation,
it shall be considered as a cash dividend and
deemed income, irrespective of the choice made by
the trustee.
(2) All rights to subscribe to the shares or other
securities or obligations of a corporation accruing
on account of the ownership of shares or other
securities in such corporation, and the proceeds of
any sale of such rights, shall be deemed principal.
All rights to subscribe to the shares or other se-
curities or obligations of a corporation accruing
on account of the ownership of shares or other
securities in another corporation, and the proceeds
of any sale of such rights, shall be deemed income.
(3) Where the assets of a corporation are liqui-
dated, amounts paid upon corporate shares as cash
dividends declared before such liquidation oc-
curred or as arrears of preferred or guaranteed
dividends shall be deemed income; all other
amounts paid upon corporate shares on disburse-
ments of the corporate assets to the stockholders
shall be deemed principal. All disbursements of
corporate assets to the stockholders, whenever
made, which are designated by the corporation as
a return of capital or division of corporate prop-
erty shall be deemed principal.
(4) Where a corporation succeeds another by
merger, consolidation or reorganization or other-
wise acquires its assets, and the corporate shares
of the succeeding corporation are issued to the
shareholders of the original corporation in like
proportion to, or in substitution for, their shares
of the original corporation, the two corporations
shall be considered a single corporation in applying
the provisions of this section. But two corpora-
tions shall not be considered a single corporation
under this section merely because one owns cor-
porate shares of or otherwise controls or directs
the other.
(5) In applying this section the date when a
dividend accrues to the person who is entitled to it
shall be held to be the date specified by the cor-
14]
§ 4035(6)
UNIFORM PRINCIPAL AND INCOME ACT
§ 4035(11)
poration as the one on which the stockholders en-
titled thereto are determined, or in default thereof
the date of declaration of the dividend. (1937, c.
190, s. 5.)
§ 4035(6). Premium and discount bonds. —
Where any part of the principal consists of bonds
or other obligations for the payment of money,
they shall be deemed principal at their inventory
value or in default thereof at their market value at
the time the principal was established, or at their
cost where purchased later, regardless of their par
or maturity value; and upon their respective ma-
turities or upon their sale any loss or gain realized
thereon shall fall upon or inure to the principal.
(1937, c. 190, s. 6.)
§ 4035(7). Principal used in business. — (l)
Whenever a trustee or a tenant is authorized by
the terms of the transaction by which the prin-
cipal was established, or by law, to use any part
of the principal in the continuance of a business
which the original owner of the property com-
prising the principal had been carrying on, the net
profits of such business attributable to such prin-
cipal shall be deemed income.
(2) Where such business consists of buying and
selling property, the net profits for any period
shall be ascertained by deducting from the gross
returns during and the inventory value of the prop-
erty at the end of such period, the expenses during
and the inventory value of the property at the
beginning of such period.
(3) Where such business does not consist of
buying and selling property, the net income shall
be computed in accordance with the customary
practice of such business, but not in such way as
to decrease the principal.
(4) Any increase in the value of the principal
used in such business shall be deemed principal,
and all losses in any one calendar year, after the
income from such business for that year has been
exhausted, shall fall upon principal. (1937, c. 190,
s. 7.)
§ 4035(8). Principal comprising animals. —
Where any part of the principal consists of animals
employed in business, the provisions of section
4035(7) shall apply; and in other cases where the
animals are held as a part of the principal, partly
or wholly because of the offspring or increase
which they are expected to produce, all offspring
or increase shall be deemed principal to the extent
necessary to maintain the original number of such
animals and the remainder shall be deemed in-
come; and in all other cases such offspring or in-
crease shall be deemed income. (1937, c. 190, s. 8.)
§ 4035(9). Disposition of natural resources. —
Where any part of the principal consists of prop-
erty in lands from which may be taken timber,
minerals, oils, gas or other natural resources, and
the trustee or tenant is authorized by law or by
the terms of the transaction by which the principal
was established to sell, lease or otherwise develop
such natural resources, and no provision is made
for the disposition of the net proceeds thereof after
the payment of expenses and carrying charges on
such property, such proceeds, if received as rent
on a lease, shall be deemed income, but if received
as consideration, whether as royalties or otherwise,
for the permanent severance of such natural re-
[1
sources from the lands, shall be deemed principal
to be invested to produce income. Nothing in this
section shall be construed to abrogate or extend
any right which may otherwise have accrued by
law to a tenant to develop or work such natural
resources for his own benefit. (1937, c. 190, s. 9.)
§ 4035(10). Principal subject to depletion. —
Where any part of the principal consists of prop-
erty subject to depletion, such as leaseholds, pat-
ents, copyrights and royalty rights, and the trustee
or tenant in possession is not under a duty to
change the form of the investment of the principal,
the full amount of rents, royalties or return from
the property shall be income to the tenant; but
where the trustee or tenant is under a duty, aris-
ing either by law or by the terms of the transac-
tion by which the principal was established, to
change the form of the investment, either at once
or as soon as it may be done without loss, then the
return from such property not in excess of five per
centum per annum of its fair inventory value, or
in default thereof its market value at the time the
principal was established, or at its cost where pur-
chased later, shall be deemed income and the re-
mainder principal. (1937, c. 190, s. 10.)
§ 4035(11). Unproductive estate. — (1) Where
any part of a principal in the possession of a trustee
consists of realty or personalty which for more
than a year, and until disposed of as hereinafter
stated, has not produced an average net income of
at least one per centum per annum of its fair in-
ventory value, or in default thereof its market
value at the time the principal was established, or
of its cost where purchased later, and the trustee
is under a duty to change the form of the invest-
ment as soon as it may be done without sacrifice
of value and such change is delayed, but is made
before the principal is finally distributed, then the
tenant, or in case of his death his personal repre-
sentative, shall be entitled to share in the net pro-
ceeds received from the property as delayed in-
come to the extent hereinafter stated.
(2) Such income shall be the difference between
the net proceeds received from the property and
the amount which, had it been placed at simple in-
terest at the rate of five per centum per annum
for the period during which the change was de-
layed, would have produced the net proceeds at
the time of change, but in no event shall such in-
come be more than the amount by which the net
proceeds exceed the fair inventory value of the
property or in default thereof its market value at
the time the principal was established or its cost
where purchased later. The net proceeds shall
consist of the gross proceeds received from the
property, less any expenses incurred in disposing
of it and less all carrying charges which have been
paid out of principal during the period while it has
been unproductive.
(3) The change shall be taken to have been de-
layed from the time when the duty to make it first
arose, which shall be presumed, in the absence of
evidence to the contrary, to be one year after the
trustee first received the property if then unpro-
ductive, otherwise one year after it became unpro-
ductive.
(4) If the tenant has received any income from
the property or has had any beneficial use thereof
during the period while the change has been de-
15]
§ 4035(12)
WIDOWS
§ 4103
fayed, his share of the delayed income shall be re-
duced by the amount of such income received or
the value of the use had.
(5) In the case of successive tenants the delayed
income shall be divided among them or their repre-
sentatives according to the length of the period for
which each was entitled to income. (1937, c. 190,
s. 11.)
§ 4035(12). Expenses; trust estates. — (1) All or-
dinary expenses incurred in connection with the
trust estate or with its administration and manage-
ment, including regularly recurring taxes assessed
against any portion of the principal, water rates,
premiums on insurance taken upon the estates of
both tenant and remainderman, interest on mort-
gages on the principal, ordinary repairs, trustees'
compensation except commissions computed on
principal, compensation of assistants, and court
costs and attorneys' and other fees on regular ac-
countings, shall be paid out of income. But such
expenses where incurred in disposing of, or as
carrying charges on, unproductive estate as de-
fined in section 4035(11), shall be paid out of prin-
cipal, subject to the provisions of sub-section two
of section 4035(11).
(2) All other expenses, including trustee's com-
missions computed upon principal, cost of invest-
ing or reinvesting principal, attorneys' fees and
other costs incurred in maintaining or defending
any action to protect the trust or the property or
assure the title thereof, unless due to the fault or
cause of the tenant, and cost of, or assessments
for, improvements to property forming part of the
principal, shall be paid out of principal. Any tax
levied by any authority, federal, state or foreign,
upon profit or gain defined as principal under, the
terms of sub-section two of section 4035(3) shall
be paid out of principal, notwithstanding said tax
may be denominated a tax upon income by the
taxing authority.
(3) Expenses paid out of income according to
sub-section one which represent regularly recur-
ring charges shall be considered to have accrued
from day to day, and shall be apportioned on that
basis whenever the right of the tenant begins or
ends at some date other than the payment date of
the expenses. Where the expenses to be paid out
of income are of unusual amount, the trustee may
distribute them throughout an entire year or part
thereof, or throughout a series of years. After
such distribution, where the right of the tenant
ends during the period, the expenses shall be ap-
portioned between tenant and remainderman on the
basis of such distribution.
(4) Where the costs of, or special taxes or as-
sessments for, an improvement representing an ad-
dition of value to property held by the trustee as
part of principal are paid out of principal, as pro-
vided in sub-section two, the trustee shall reserve
out of income and add to the principal each year
a sum equal to the cost of the improvement di-
vided by the number of years of the reasonably
expected duration of the improvement. (1937, c.
190, s. 12.)
§ 4035(13). Expenses; non-trust estates. — (1)
The provisions of section 4035(12), so far as ap-
plicable and excepting those dealing with costs of,
or special taxes, or assessments for, improvements
to property, shall govern the apportionment of ex-
penses between tenants and remaindermen where
no trust has been created, subject, however, to any
legal agreement of the parties or any specific di-
rection of the taxing or other statutes; but where
either tenant or remainderman has incurred an ex-
pense for the benefit of his own estate, and with-
out the consent or agreement of the other, he shall
pay such expense in full.
(2) Subject to the exceptions stated in sub-sec-
tion one the cost of, or special taxes or assessments
for, an improvement representing an addition of
value to property forming part of the principal
shall be paid by the tenant, where such improve-
ment cannot reasonably be expected to outlast the
estate of the tenant. In all other cases a portion
thereof only shall be paid by the tenant, while the
remainder shall be paid by the remainderman.
Such portion shall be ascertained by taking that
percentage of the total which is found by dividing
the present value of the tenant's estate by the
present value of an estate of the same form as
that of the tenant, except that it is limited for a
period corresponding to the reasonably expected
duration of the improvement. The computation of
present values of the estates shall be made on the
expectancy basis set forth in the "American Ex-
perience Tables of Mortality," and no other evi-
dence of duration or expectancy shall be con-
sidered. (1937, c. 190, s. 13.)
§ 4035(14). Uniformity of interpretation. — This
chapter shall be so interpreted and construed as to
effectuate its general purpose to make uniform the
law of those states which enact it. (1937, c. 190,
s. 14.)
§ 4035(15). Title of chapter.— This chapter may
be cited as the Uniform Principal and Income Act.
(1937, c. 190, s. 15.)
CHAPTER 80
WIDOWS
Art. 2. Dower
§ 4101. Dower not affected by conveyance of
husband; exception.
Wife Not Joining in Execution of Deeds of Trust Ac-
quires No Dower Right. — Where a debt secured by a pur-
chase money deed of trust was divided, and two deeds of
trust were substituted for the original deed of trust, which
was canceled, and the wife of the grantee did not join in
executing any of the deeds of trust, she acquired no dower
right in the land, the original debt for the purchase money
not having been extinguished. Case v. Fitzsimons, 209 N.
C. 783, 184 S. E- 818.
§ 4103. Conveyance of home site without wife's
signature. —
Provided further, that all married women under
the age of twenty-one shall have the same privilege
to renounce their dower rights in and to the home
site as is now conferred upon married women
twenty-one years and over, and the deed or other
conveyances thereof made by the owner of a home
site with the voluntary signature and assent of his
wife, signified on her private examination accord-
ing to law, even though the wife be under twenty-
one years of age, shall be valid and immediately
pass possession and title thereto as though said
married women were twenty-one years or over:
Provided further, that all conveyances of a home
site, as denned in this section, heretofore made
[116]
§ 4103(b)
WILLS
§ 4159(a)
by the owner thereof, with the voluntary signature
and assent of his wife, signified on her private ex-
amination according to law, shall be valid and pass
the title and possession thereto as of the date
thereof, even though the wife of said owner was
under twenty-one years of age at the time of such
signature and assent. (1919, c. 123; 1937, c. 69.)
Editor's Note.— The 1937 amendment directed that the
above provisos be added at the end of this section. The
rest of the section, not being affected by the amendment,
is not set out.
In Coker v. Virginia-Carolina Joint-Stock Land Bank, 208 N.
C. 41, 178 S. E- 863, it was held that § 4103(b) had no ap-
plication where a minor's wife joined in a mortgage placed
by her husband upon his home site, and declared void the
mortgage upon its disaffirmance by the wife within three
years after she attained her majority. In order to obviate
such a result in the future, the amendment was passed to
make valid and binding the properly executed renunciation
of her dower rights in her husband's home site by a mar-
ried woman under the age of 21. This amendment is log-
ical and will tend further to stabilize real estate titles.
15 N. C. Law Rev., No. 4, pp. 354, 355.
§ 4103(b). Renouncement of dower.
See 13 N. C. Law Rev., No. 4, p. 375, for an analysis
of this section, where it was stated that P. L. 1923, ch.
67, § 2, which was amended by this section, was itself
an amendment to § 2180.
Art. 4. Year's Allowance
Part 1. Nature of Allowance
§ 4109. Amount allowed. — Except in cases in
which a large allowance is hereinafter provided
for, the value of a year's allowance shall be five
hundred dollars, and one hundred fifty dollars in
addition thereto for every member of the family
besides the widow. (Rev., s. 3092; Code, s. 2118;
1868-9, c. 93, s. 10; 1937, c. 225.)
Editor's Note. — The 1937 amendment increased the amounts
provided for in this section from three to five hundred
dollars, and from one to one hundred fifty dollars, respec-
tively.
CHAPTER 81
WILLS
Art. 1. Execution of Will
§ 4131. Formal execution.
Applied in In re Will of Roediger, 209 N. C. 470, 184 S.
E- 74.
Cited in Reynolds v. Reynolds, 208 N. C. 578, 182 S. E-
341.
Art. 2. Revocation of Will
§ 4133. Revocation by writing or by cancella-
tion or destruction.
Interlineations and Annotations Held Insufficient to Show
Revocation. — Where testator, in his own handwriting, makes
certain interlineations and annotations upon his nuncupative
will and marks through certain words and it appears that
such alterations are insufficient to constitute a holographic
will and were made with the intent of altering the will at
some future date, but that such alterations were not made
with the intent to revoke the nuncupative will in whole or
in part, such interlineations and annotations are insufficient
to show a revocation of the nuncupative will, intent to re-
voke being essential to revocation by defacement or oblit-
eration of the will by testator under this section. In re
Will of Roediger, 209 N. C. 470, 184 S. E. 74.
Art. 3A. Depository for Wills
§ 4138(a). Depositories in offices of clerks of
superior court where living persons may file wills.
— The clerk of the superior court in each county
of North Carolina shall be required to keep a re-
ceptacle or depository in which any person who
desires to do so may file his or her will for safe
keeping; and the clerk shall make a charge of fifty
cents (50c) for the filing of such will, and shall,
upon written request of the testator, or the duly
authorized agent or attorney for the testator, per-
mit said will or testament to be withdrawn from
said depository or receptacle at any time prior to
the death of the testator: Provided, that the con-
tents of said will shall not be made public or open
to the inspection of any one other than the testa-
tor or his duly authorized agent until such time
as the said will shall be offered for probate.
This section shall not apply to Guilford county.
(1937, c. 435.)
Editor's Note. — This section, which makes it possible for
a testator during his lifetime to file his will for safekeep-
ing with the probate judge, represents a rather progressive
step in the law of wills. If taken advantage of by tes-
tators, it may prevent the loss or fraudulent destruction
of many validly executed wills, and may tend to prevent
the offer of forged wills for probate and contests of wills
upon the grounds of fraud, undue influence, and mental
incapacity. Similar statutes have been enacted in several
states in this country. 15 N. C. I,aw Rev., No. 4, p. 353.
Art. 4. Probate of Will
§ 4145. Probate conclusive until vacated.
Title of Innocent Purchasers Not Affected by Judgment
Setting Aside Will. — Where the devisees named in a will,
which has been duly probated in common form, sell and dis-
pose of part of the lands devised to innocent purchasers
for value without notice, and thereafter caveat proceedings
are instituted and the will set aside, the heirs at law, by
operation of the judgment setting aside the will, become
tenants in common in the lands not disposed of, but the
title conveyed by the devisees named in the paper writing
to purchasers for value without notice, or knowledge of
facts from which a purpose to file caveat proceedings -could
be intimated, is not affected, the probate in common form
being conclusive evidence of the validity of the will until it
is attacked by caveat proceedings duly instituted. White-
hurst v. Hinton, 209 N. C. 392, 184 S. E- 66.
When Devisees Entitled to Rents and Profits until Pro-
bate Set Aside. — Where there is no evidence tending to
show that at any time prior to the institution of the caveat
proceeding, the defendants, or their ancestors, had any
knowledge or intimation that the plaintiffs would attack
the validity of the will and there is no evidence tending
to show that any of the devisees in said will procured its
execution by undue or fraudulent influence, hence the de-
fendants and their ancestors were entitled to the rents and
profits of the lands devised to them until the probate was
set aside and the will adjudged void. Whitehurst v. Hin-
ton, 209 N. C. 392, 404, 184 S. E. 66.
Art. 5. Caveat to Will
§ 4158. When and by whom caveat filed.
Good Faith Claimants Protected until Probate Attacked.
— All persons who claim in good faith under a will which
has been duly probated in common form as provided by
statute are protected by its provisions, until the probate
is attacked by a caveat proceeding instituted as provided
by this section. Whitehurst v. Hinton, 209 N. C. 392, 403,
184 S. E. 66.
Persons Having Pecuniary Interest May Caveat. —
Delete the citation of In re Will of Davis in the para-
graph under this catchline and substitute in lieu thereof;
182 N. Y. 472.
Applied in In re Will of Roediger, 209 N. C. 470, 184 S.
E. 74.
§ 4159. Bond given and cause transferred to
trial docket.
The probate of a will in solemn form is a proceeding in
rem, and the issue raised by the caveat must be tried by a
jury and the propounder and caveator may not waive trial
by jury and submit the issue to the court under an agreed
statement of facts. In re Will of Roediger, 209 N. C. 470,
184 S. E. 74.
§ 4159(a). Prosecution bond required in actions
to contest wills. — When any action is instituted to
[117]
§ 4161
CRIMES AND PUNISHMENTS
§ 4226
contest a will the clerk of the superior court will
require the prosecution bond required in other
civil actions: Provided, however, that provisions
for bringing suit in forma pauperis shall also apply
to the provisions of this section. (1937, c. 383.)
Editor's Note. — The purpose of this section is not entirely-
clear. The usual method of contesting a will is to file a
caveat, either at the time the will is presented for pro-
bate, or within seven years thereafter. This is said to
be neither a civil action nor a special proceeding, but is
in the nature of a proceeding in rem, in which the pro-
pounder has the burden of establishing the formal execu-
tion of the will, and the caveators the burden of showing
that it is not a valid will. It may be the purpose of the
statute to require the propounder to give bond, when a
caveat is filed, so as to have the costs secured by both
parties. 15 N. C. Law Rev., No. 4, p. 352.
§ 4161. Caveat suspends proceedings under will.
The filing of a caveat suspends further proceedings in
the administration of the estate, but does not deprive the
executor or executrix of the right to the possession of the
assets of the estate. Elledge v. Hawkins, 208 N. C. 757.
182 S. E- 468.
Art. 6. Construction of Will
§ 4162. Devise presumed to be in fee.
Section Does Not Apply to Devise to Trustee. — Where
a devise created no interest in certain lands in favor of tes-
tatrix' husband, but devised the lands to him in an ac-
tive trust for the purpose of carrying out the wishes of
her father for the care of his widow, this section has no
application to the devise to the husband as trustee in an
active trust with direction for the vesting of the lands in
her heirs upon the termination of the trust. Stephens v.
Clark, 211 N. C. 84, 189 S. E- 191.
Devise Creating a Life Estate. — In Alexander v. Alexan-
der, 210 N. C. 281, 186 S. E. 319, it was held that the de-
vise created an estate limited at most to the life of the
widow, and did not convey to the widow a fee simple, not-
withstanding the provisions of this section and notwith-
standing the rule that a gift of an estate to a person gen-
erally or indefinitely with power of disposition ordinarily
carries the fee, since it is apparent from the words of the
devise that testator did not intend to confer the fee simple.
Applied in Morris v. Waggoner, 209 N. C. 183, 183 S. E-
353.
§ 4166. Lapsed and void devises pass under re-
siduary clause.
This section should not be construed with § 4168. Nei-
ther section is ambiguous and they are not interrelated.
Beach v. Gladstone, 207 N. C. 876, 877, 178 S. E- 546.
Legacy Not Lapsed by Fact That Legatee Predeceased
Testator.— In Beach v. Gladstone, 207 N. C. 876, 178 S. E-
546, a judgment that a legacy did not lapse by reason of
fact that legatee predeceased testator is affirmed, it ap-
pearing that legatee would have been distributee of testa-
tor had she survived him.
CHAPTER 82
CRIMES AND PUNISHMENTS
SUBCHAPTER I. GENERAL PROVISIONS
Art. 1. Felonies and Misdemeanors
§ 4171. Felonies and misdemeanors defined.
Indictment Must Use Word "Feloniously." —
In accord with original. See State v. Callett, 211 N.
C. 563, 191 S. E- 27.
Art. 2. Principals and Accessories
§ 4175. Accessories before the fact; trial and
punishment.
Sufficient Evidence to Submit Question to Jury. — Evi-
dence tending to show that defendant knew of and par-
ticipated in the plans or preparations made for the killing
of deceased, that defendant procured a coat for the killer
and furnished an automobile as a means of flight after
the murder had been committed is held sufficient to be
submitted to the jury on an indictment drawn under this
section. State v. Williams, 208 N. C. 707, 182 S. E. 131.
Applied in State v. Holland, 211 N. C. 284, 189 S. E- 761.
Cited in State v. Hampton, 210 N. C. 283, 186 S. E- 251;
In re Malicord, 211 N. C. 684, 191 S. E. 730.
SUBCHAPTER IV. OFFENSES AGAINST
THE PERSON
Art. 7. Homicide
§ 4200. Murder in the first and second degree
defined; punishment.
II. MURDER IN GENERAL.
Applied in State v. Hodgin, 210 N. C. 371, 186 S. E. 495.
Cited in State v. Home, 209 N. C. 725, 184 S. E. 470.
IV. MURDER IN THE SECOND DEGREE.
A killing with a deadly weapon raises the presumption
that the homicide was murder in the second degree, and if
the State seeks a conviction of murder in the first degree
it has the burden of proving beyond a reasonable doubt
that the homicide was committed with deliberation and
premeditation. State v. Perry, 209 N. C. 604, 184 S. E.
545.
V. PLEADING AND PRACTICE.
Remedy for Alternative Indictment Held to Be by Mo-
tion for Bill of Particulars. — After the return of a verdict
of guilty of murder in the first degree, defendant moved
in arrest of judgment for that the indictment was alterna-
tive, indefinite, and uncertain. It was held that although
the indictment was alternative, either charge constituted
murder in the first degree under this section, informing
defendant of the crime charged, and defendant's remedy,
if he desired greater certainty, was by motion for a bill
of particulars under § 4613. State v. Puckett, 211 N. C.
66, 189 S. E- 183.
Where Jury May Be Instructed to Return First Degree
Verdict or Not Guilty. — It is only in cases where all of the
evidence tends to show that the homicide was committed by
means of poison, lying in wait, imprisonment, starving,
torture, or in the perpetration or attempt to perpetrate a
felony, that the trial judge can instruct the jury that they
must return a verdict of murder in the first degree or not
guilty. State v. Perry, 209 N. C. 604, 605, 184 S. E. 545.
Where all the evidence is to the effect that a murder
was committed in the perpetration of a robbery, it is not
error for the court to limit the jury to a verdict of guilty
of murder in the first degree or not guilty under this sec-
tion. State v. Gosnell, 208 N. C. 401, 181 S. E. 323.
§ 4201. Punishment for manslaughter.
Section Does Not Constitute Involuntary Manslaughter
a Misdemeanor. — The amendment to this section by ch.
249, Public Laws of 1933, which added a proviso that in
cases of involuntary manslaughter the defendant shall be
punishable by fine or imprisonment, or both, in the dis-
cretion of the court, does not constitute involuntary man-
slaughter a misdemeanor instead of a felony, the effect
of the proviso being to mitigate punishment in cases of
involuntary manslaughter, and not to set up involuntary
manslaughter as a separate offense. State v. Dunn, 208
N. C. 333, 180 S. E- 708.
Thus the Superior Court has jurisdiction of a prose-
cution under the statute although the fatal accident oc-
curred within the territorial jurisdiction of a city court
having exclusive original jurisdiction of misdemeanors.
State v. Leonard, 208 N. C. 346, 180 S. E- 710.
Art. 8. Rape and Kindred Offenses
§ 4204. Punishment for rape.
Applied in State v. Jackson, 211 N. C. 202, 189 S. E- 510.
§ 4209. Obtaining carnal knowledge of virtuous
girls between twelve and sixteen years old.
Cited in State v. Cain, 209 N. C. 275, 183 S. E. 300.
Art. 11. Kidnapping and Abduction
§ 4221. Punishment for kidnapping.
Applied in State v. Beasley, 208 N. C. 318, 180 S. E- 598
Art. 12. Abortion and Kindred Offenses
§ 4226. Using drugs or instruments to destroy
unborn child.
Evidence of Disease Facilitating Abortion Properly Ex-
[118]
§ 4232
CRIMES AND PUNISHMENTS
§ 4284
eluded. — In a prosecution under this and the following
section, evidence offered by the defendant tending to show
that the deceased was suffering from a disease which
facilitated the abortion was not relevant to the issue in-
volving the defendant's guilt as charged in the indictment.
There was no error in the exclusion of such evidence.
State v. Evans, 211 N. C. 458, 459, 190 S. E. 724.
Admission of evidence that woman took an anaesthetic
was not prejudicial. State v. Evans, 211 N. C. 458, 459, 190
S. E- 724.
SUBCHAPTER V. OFFENSES AGAINST
THE HABITATION AND OTHER
BUILDINGS
Art. 14. Burglary and Other House-Breakings
§ 4232. First and second degree burglary.
Sufficient Evidence to Submit Question of First Degree
Burglary to Jury. — Evidence that the house was broken
into by forcing the door open, that the time was late at
night, and that the prosecuting witness and his wife were
asleep in the room entered, together with evidence that
tracks in the freshly fallen snow were followed and led to
defendant's room in another house in a distant part of the
city, where defendant was apprehended, is held sufficient
to be submitted to the jury on the question of defendant's
guilt of burglary in the first degree. State v. Oakley,
210 N. C. 206, 186 S. E. 244.
Applied in State v. Robertson, 210 N. C. 266, 186 S. E.
247; State v. Walls, 211 N. C. 487, 191 S. E- 232.
§ 4233. Punishment for burglary.
Quoted in State v. Oakley, 210 N. C. 206, 186 S. E. 244.
§ 4236. Preparation to commit burglary or other
house-breakings.
A sentence of not less than twenty-five nor more than
thirty years upon a plea of guilty of possession of weap-
ons and implements for house breaking, in violation of this
section is within the discretion of the court conferred by
the statute, and is not objectionable as a cruel and unusual
punishment within the meaning of Art. I, sec. 14, of the
Constitution of North Carolina. State v. Cain, 209 N.
C. 275, 183 S. E- 300.
§ 4237. Breaking into or entering railroad cars.
Cited in State v. Hendricks, 207 N. C. 873, 178 S. E. 557.
Art. 15. Arson and Other Burnings
§ 4245(a). Willful and malicious burning of per-
sonal property.
Evidence that defendant's car was driven away from de-
fendant's house shortly before defendant's personal property
therein was destroyed by fire, and that the car had been
driven to the house several times during the days preced-
ing the fire, and that the occupants of the car were heard
in the house, is held insufficient, in the absence of evi-
dence that defendant was one of the occupants of the car,
to resist defendant's motions for judgment as of non-
suit in a prosecution under this section, although there
was ample evidence that the fire was of incendiary origin
and destroyed personal property of defendant which had
been insured by him. State v. Simms, 208 N. C. 459, 181
S. E- 269.
§ 4246. Attempting to burn dwelling-houses and
certain other buildings.
Cited in State v. Hampton, 210 N. C. 283, 186 S. E- 251.
SUBCHAPTER VI. OFFENSES AGAINST
PROPERTY
Art. 16. Larceny
§ 4250. Receiving stolen goods.
This section makes guilty knowledge one of the essential
elements of the offense of receiving stolen goods. This
knowledge may be actual, or it may be implied when the
circumstances under which the goods were received are
sufficient to lead the party charged to believe they were
stolen. State v. Stathos, 208 N. C. 456, 181 S'. E- 273.
It is necessary to establish either actual or implied knowl-
edge on the part of the person charged of the facts that
the goods were stolen. The question involved is whether
the person charged had knowledge of the fact that the gur.ds
[1
had been stolen at the time he received them, and not
whether a reasonably prudent man in the transaction of his
business would have gained such knowledge under the cir-
cumstances. Id.
The test is as to the knowledge, actual or implied, of the
defendant, and not what some other person would have be-
lieved from the facts attending the receipt of the goods. Id.
Applied in State v. Whitley, 208 N. C. 661, 182 S. E- 338;
State v. Camby, 209 N. C. 50, 182 S. E- 715.
Cited in State v. Ray, 209 N. C. 772, 184 S. E- 836.
§ 4251. Larceny of property, or the receiving of
stolen goods, not exceeding twenty dollars in value.
Knowledge that the goods were stolen at the time of re-
ceiving them is an essential element of the offense of re-
ceiving stolen goods, and although guilty knowledge may be
inferred from incriminating circumstances, a charge that
such knowledge might be actual or implied, without speci-
fying that it would have to exist at the time of the re-
ceiving, is erroneous. State v. Spaulding, 211 N. C. 63, 188
S. E. 647.
§ 4265(a). Destruction or taking of soft drink
bottles. — It shall be unlawful for any person, firm
or corporation, or any employee thereof, to mali-
ciously take up, carry away, destroy or in any way
dispose of bottles or other property belonging to
any bottler, bottling company, person, firm or cor-
poration engaged in the business of bottling and/or
distributing in bottles or other closed containers
soda water, coca-cola, pepsi-cola, cheri-wine, chero-
cola, ginger ale, grape and other fruit juices or
imitations thereof, carbonated or malted beverages
and like preparations commonly known as soft
drinks. Any person violating any of the provisions
of this section shall be guilty of a misdemeanor, and
upon conviction shall be fined or imprisoned in
the discretion of the court. (1937, c. 322, ss. 1, 2.)
Art. 17 A. Robbery with Firearms
§ 4267(a). Made a felony.
Where an indictment charged defendants with robbery
with firearms from the companion of the person they were
formerly charged with killing, the two offenses having been
committed at the same time, and evidence of guilt of one
of the offenses is substantially the same as the evidence
of guilt of the other, a special verdict holding plea of
former jeopardy bad supports the court's determination of
the plea of former conviction against defendants, the charges
being for separate offenses committed against different
persons. State v. Dills, 210 N. C. 178, 185 S. E. 677, dis-
tinguishing State v. Clemmons, 207 N. C. 276, 176 S. E.
760.
Art. 18. Embezzlement
§ 4268. Embezzlement of property received by
virtue of office or employment.
Fraudulent intent is a necessary element of the statutory
offense of embezzlement and the State must prove such
intent beyond a reasonable doubt, but direct proof is not
necessary, it being sufficient if facts and circumstances are
shown from which it may be reasonably inferred. State
v. McLean, 209 N. C. 38, 182 S. E- 700.
Meaning of Fraudulent Intent. — Fraudulent intent within
the meaning of this section is the intent to willfully or
corruptly use or misapply the property of another for pur-
poses other than that for which it is held, and evidence
tending to show that defendant, without authorization, ap-
plied funds of his employer to his own use, although de-
fendant testified that he used the funds to pay a debt due
him by his employer, is sufficient to be submitted to the
jury on the question of fraudulent intent. State v. Mc-
Lean, 209 N. C. 38, 182 S. E- 700.
Art. 19. False Pretenses and Cheats
§ 4284. Obtaining entertainment at hotels and
boarding-houses without paying therefor.
Editor's Note.— By Public Laws 1937, c. 168, the appli-
cation of Public Laws 1929, c. 103, as amended, was ex-
tended to Lee county.
19]
§ 4311(a)
CRIMES AND PUNISHMENTS
§ 4428
SUBCHAPTER VII. CRIMINAL TRESPASS
Art. 22. Trespasses to Land and Fixtures
§ 4311(a). Starting fires within five hundred feet
of areas under protection of state forest service.
■ — It shall 'be unlawful for any person, firm or cor-
poration to start or cause to be started any fire or
ignite any material in any of the areas of wood-
lands under the protection of the state forest serv-
ice or within five hundred feet of any such pro-
tected area, between the first day of April and the
fifteenth day of June, inclusive, or between the
fifteenth day of October and the first day of
December, inclusive, in any year, without first ob-
taining from the state forester or one of his duly
authorized agents a permit to set out fire or ignite
any material in such above mentioned protected
areas; that no charge shall be made for the grant-
ing of said permits. This section shall not apply
to any fires started or caused to be started within
five hundred feet of a dwelling house. Any per-
son, firm or corporation violating this section shall
be guilty of a misdemeanor, and shall be fined or
imprisoned in the discretion of the court. (1937,
c. 207.)
SUBCHAPTER VIII. OFFENSES AGAINST
PUBLIC MORALITY AND DECENCY
Art. 24. Offenses against Public Morality and
Decency
§ 4336. Crime against nature.
Applied in State v. Callett, 211 N. C. 563, 191 S. E- 27.
§ 4339. Seduction.
Testimony of Woman Must Be Corroborated as to Each
Element.—
In accord with original. See State v. Forbes, 210 N. C.
567, 187 S. E. 760.
Insufficient Evidence to Show Promise of Marriage. — In
prosecution for seduction, the only evidence in support of
the testimony of prosecutrix on the essential element of
promise of marriage was the testimony of a witness that
prosecutrix had told the witness that she and defendant
were going to be married, and the further testimony that
she had seen prosecutrix and defendant together over a
certain period. No other witness testified that prosecutrix
and defendant had been seen together. This is not suffi-
cient to constitute proof of the promise of marriage by facts
and circumstances independent of the testimony of prose-
cutrix, and defendant's motion to nonsuit should have been
granted. State v. Forbes, 210 N. C. 567, 187 S. E. 760.
Burden of Proof on State.— In order to convict, the bur-
den of proof is upon the State to show beyond a reasonable
doubt that the seduction was accomplished under and by
means of the promise of marriage, and that the prosecutrix
was at that time an innocent and virtuous woman. It
must affirmatively appear that the inducing promise pre-
ceded the intercourse, and that the promise was absolute
and not conditional. State v. Wells, 210 N. C. 738, 188
S. E- 326, holding evidence insufficient to establish that
seduction was induced by previous unconditional promise
of marriage.
§ 4352. Local: Using profane or indecent lan-
guage on public highways.
Editor's Note. — Public Laws of 1937, c. 9, struck out
Perquimans from the list of exempted counties, thereby
making this section applicable to such county.
SUBCHAPTER IX. OFFENSES AGAINST
PUBLIC JUSTICE
Art. 26. Perjury
§ 4369. False oath to procure benefit of insur-
ance policy or certificate. — Any person who shall
wilfully and knowingly present or cause to 'be
presented a false or fraudulent claim, or any proof
in support of such claim, for the payment of a loss,
or other benefits, upon a contract of insurance; or
prepares, makes or subscribes to a false or fraudu-
lent account, certificate, affidavit or proof of loss,
or other document or writing, with intent that the
same may be presented or used in support of such
claim, shall be punishable by imprisonment for
not more than five years or by a fine of not more
than five hundred ($500.00) dollars, or by both
such fine or imprisonment within the discretion of
the court. (Rev., s. 3487; 1899, c. 54, s. 60; 1913,
c. 89, s. 28; 1937, c. 248.)
Art. 28. Obstructing Justice
§ 4379. Failing to aid police officers.
Stated in Tomlinson v. Norwood, 208 N. C. 716, 182 S. E.
659.
Art. 31. Prison Breach and Prisoners
§ 4409(a). Classification and commutation of
time for prisoners other than state prisoners.
Editor's Note. — The mandatory provisions of this section
with reference to the use of stripes were repealed by Public
Laws 1937, c. 88, s. 2.
Art. 31 A. Custodial Institutions
§ 4409(1). Persuading inmates to escape. — It
shall be unlawful for any parent, guardian, brother,
sister, uncle, aunt, or any person whatsoever to
persuade or induce to leave, carry away, or ac-
company from any state institution, except with
the permission of the superintendent or other per-
son next in authority, any boy or girl, man or
woman, who has been legally committed or ad-
mitted under suspended sentence to said institu-
tion, by juvenile, recorder's, superior, or any other
court of competent jurisdiction. (1935, c. 307, s.
1; 1937, c. 189, s. 1.)
Editor's Note. — The 1937 amendment included within the
provisions of this and the following section inmates who have
been "admitted under suspended sentence." Apparently,
there was a loophole in the old law. 15 N. C. baw Rev.,
No. 4, p. 341.
§ 4409(2). Harboring fugitives. — It shall be un-
lawful for any person to harbor, conceal, or give
succor to, any known fugitive from any institu-
tion whose inmates are committed by court or are
admitted under suspended sentence. (1935, c. 307,.
s. 2; 1937, c. 189, s. 2.)
See note under § 4409(1).
SUBCHAPTER X. OFFENSES AGAINST
THE PUBLIC PEACE
Art. 32. Offenses against the Public Peace
§ 4410. Carrying concealed weapons.
Warrant Must State Defendant Carried Weapon Off His
Own Premises.— In prosecution for carrying a concealed
weapon, the warrant is held fatally defective in failing to
embrace in the charge the essential element of the offense
that the weapon was carried concealed by defendant off his
own premises, the warrant itself excluding the charge that
the weapon was carried off the premises by charging that
defendant carried an unconcealed weapon off his premises.
State v. Bradley, 210 N. C. 290, 186 S. E. 240.
SUBCHAPTER XII. GENERAL POLICE
REGULATIONS
Art. 34. Lotteries and Gaming
§ 4428. Dealing in lotteries. —
Any person who engages in disposing of any
species of property whatsoever, including money
and evidences of debt, or in any manner distributes
[120]
§ 4433
CRIMES AND PUNISHMENTS
§ 4437 (t)
gifts or prizes upon tickets, bottle crowns, bottle
caps, seals on containers, other devices or certifi-
cates sold for that purpose, shall ibe held liable to
prosecution under this section.
(1937, c. 157.)
Editor's Note.— The 1937 amendment inserted the words
"bottle crowns, bottle caps, seals on containers, other de-
vices" in the second sentence of this section. The rest of
the section, not being affected by the amendment, is not
set out.
Applied in State v. Blanton, 207 N. C. 872, 180 S. E. 81.
§ 4433. Keeping gaming tables, illegal punch
boards or slot machines, or betting thereat.
Cited in State v. Humphries, 210 N. C. 406, 186 S. E-
473.
§ 4434. Allowing gaming tables, illegal punch
boards or slot machines on premises.
Where the agreed statement of facts in an action to re-
cover the penalty under this section states that defendant
kept a slot machine in his store, without a finding that
the machine was illegal, the findings are insufficient _ to
support a judgment against defendant. Nivens v. Justice,
210 N. C. 349, 186 S. E. 237.
§ 4437(d). Slot machines or devices prohibited.
Sections Construed Together.— Chapter 37, P. L. 1935,
§§ 4437(d) -4437(i), and Chapter 282, P. L, 1935, §§ 4437(j)-
4437(q), both dealing with slot machines, must be con-
strued together. State v. Humphries, 210 N. C. 406, 186
S. E- 473.
Slot Machines Paying Off Only in Checks to Be Used
in Machines Are Unlawful.— See Tomberlin v. Bachtel,
211 N. C. 265, 268, 189 S. E- 769.
§ 4437(f). Slot machine or device defined.
See the note to § 4437(1).
§ 4437(g). No tax to be levied on prohibited
machines.
The payment of state and county license tax on slot
machines does not justify the operation of the machines
if they are illegal under the provision of this and ch. 282.
Hinkle v. Scott, 211 N. C. 680, 191 S. E- 512.
§ 4437 (j). Slot machines or devices prohibited.
This and the following sections cannot be held to re-
peal §§ 4437 (d)- 4437 (i), because the two acts are not in
conflict. Both evince the same purpose to remedy the
same evil. State v. Humphries, 210 N. C. 406, 413, 186 S.
E. 473.
The addition of the word "except" in the last line of
this section, standing alone, apparently would make every
sort of slot machine unlawful except that defined in §
4437(1) but the language of this last section undertakes to
define what sort of slot machine or device is "prohibited
by the provisions of this act," thus showing the legislative
intent to make the possession of the described machine un-
lawful. Construing these sections together, we conclude,
from the later inclusion of such machine in the prohibition,
that the word "except" was not intended to exclude from
unlawfulness the machine defined. This construction is
consistent with the apparent purpose of the statute. Id.
§ 4437(1). Slot machine or device defined.
Editor's Note. — This section, standing alone is ungram-
matical. It cannot be parsed. The predicate "may re-
ceive" in line 15 has no subject. But by reference to §
4437(f), it is seen that the word "user" is the subject of
the verb "may receive," and that this word was by error
of the draftsman or the printer inadvertently omitted. It
is the duty of the court to supply such an omission and to
interpolate words manifestly omitted by clerical error.
With the word "user" or "operator" inserted, the section
has grammatical form and intelligible meaning to carry
out the legislative intent. See State v. Humphries, 210
N. C. 406, 410, 186 S. E. 473.
The purpose of this section is manifest. The General As-
sembly under its police power, undertook to prohibit the
possession and operation of certain slot machines which it
declared were public nuisances. State v. Humphries, 210
N. C. 406, 409, 186 S. E. 473.
The language previous to the word "irrespective" defines
what constitutes an unlawful slot machine, and this defini-
tion must abide, irrespective of whether the machine may
also, leaving out of consideration any element of chance or
uncertainty of outcome or the question whether the outcome
is not dependent on skill, sell merchandise or present enter-
tainment. That is, if the machine is rendered unlawful by
reason of the fact that the element of chance is present,
and that from its operation the result is unpredictable, its
unlawfulness is not to be affected by the further fact that
the machine may also sell merchandise, or present entertain-
ment, disconnected from such element of chance or where
the outcome is not dependent on skill. State v. Humphries,
210 N. C. 406, 411, 186 S. E. 473.
Evidence Properly Excluded. — In a prosecution under this
section for possession of an illegal slot machine, evidence
as to the licensing of the machine is properly excluded.
State v. Humphries, 210 N. C. 406, 186 S. E- 473.
§ 4437 (m). Minors barred from playing.
Cited in State v. Humphries, 210 N. C. 406, 186 S.
473.
E.
§ 4437 (r). Manufacture, sale, etc., of slot ma-
chines and devices. — It shall be unlawful to manu-
facture, own, store, keep, possess, sell, rent, lease,
let on shares, lend or give away, transport, or ex-
pose for sale or lease, or to offer to sell, rent, lease,
let on shares, lend or give away, or to permit the
operation of, or for any person to permit to be
placed, maintained, used or kept in any room,
space or building owned, leased or occupied by
him or under his management or control, any slot
machine or device. (1937, c. 196, s. 1.)
Editor's Note. — Despite the broad interpretation given the
1935 laws [§§ 4437(d) -4437(q)] in prohibiting slot machines,
the 1937 legislature enacted ch. 196 which probably goes fur-
ther in placing slot machines and similar devices beyond the
pale of the law than any statute heretofore. 15 N. C. Law
Rev., No. 4, p. 340.
§ 4437 (s). Agreements with reference to slot
machines or devices made unlawful. — It shall be
unlawful to make or permit to be made with any
person any agreement with reference to any slot
machines or device, pursuant to which the user
thereof may become entitled to receive any money,
credit, allowance, or anything of value or addi-
tional chance or right to use such machines or de-
vices, or to receive any check, slug, token or mem-
orandum entitling the holder to receive any money,
credit, allowance or thing of value. (1937, c. 196,
s. 2.)
§ 443 7 (t). Slot machine or device defined. — Any
machine, apparatus or device is a slot machine or
device within the provisions of this law if it is one
that is adapted, or may be readily converted into
one that is adapted, for use in such a way that, as
a result of the insertion of any piece of money or
coin or other object, such machine or device is
caused to operate or may be operated in such man-
ner that the user may receive or become entitled
to receive any piece of money, credit, allowance
or thing of value, or any check, slug, token or
memorandum, whether of value or otherwise, or
which may be exchanged for any money, credit,
allowance or any thing of value, or which may be
given in trade, or the user may secure additional
chances or rights to use such machine, apparatus
or device; or in the playing of which the operator
or user has a chance to make varying scores or
tallies upon the outcome of which wagers might
'be made, irrespective of whether it may, apart
from any element of chance or unpredictable out-
come of such operation, also sell, deliver or pre-
sent some merchandise, indication or weight, en-
tertainment or other thing of value. This defini-
tion is intended to embrace all slot machines and
[ 121 ]
§ 4437(u)
CRIMES AND PUNISHMENTS
§ 4506
similar devices except slot machines in which is
kept any article to ,be purchased by depositing any
coin or thing of value, and for which may be had
any article of merchandise which makes the same
return or returns of equal value each and every
time it is operated, or any machine wherein may
be seen any pictures or heard any music by depos-
iting therein any coin or thing of value, or any
slot weighing machine or any machine for making
stencils by the use of contrivances operated by de-
positing in the machine any coin or thing of value,
or any lock operated by slot wherein money or
thing of value is to be deposited, where such slot
machines make the same return or returns of
equal value each and every time the same is op-
erated and does not at any time it is operated of-
fer the user or operator any additional money,
credit, allowance, or thing of value, or check, slug,
token or memorandum, whether of value or other-
wise, which may be exchanged for money, credit,
allowance or thing of value or which may be given
in trade or by which the user may secure addi-
tional chances or rights to use such machine, ap-
paratus, or device, or in the playing of which the
operator does not have a chance to make varying
scores or tallies. (1937, c. 196, s. 3.)
§ 4437(u). Issuance of license prohibited. —
There shall be no state, county, or municipal tax
levied for the privilege of operating the machines
cr devices the operation of which is prohibited by
this law. (1937, c. 196, s. 4.)
§ 4437 (v). Declared a public nuisance. — An ar-
ticle or apparatus maintained or kept in violation
of this law is a public nuisance. (1937, c. 196, s. 5.)
§ 4437(w). Violation made misdemeanor, — Any
person who violates any provision of this law is
guilty of a misdemeanor and upon conviction shall
be fined or imprisoned in the discretion of the
court. (1937, c. 196, s. 6.)
Art. 36, Protection of the Family
§ 4447. Abandonment of family by husband.
This section in express terms constitutes the abandonment
of children by the father a continuing offense. The prose-
cution of an offense of this nature is a bar to a subse-
quent prosecution for the same offense charged to have
been committed at any time before the institution of the
first prosecution, but it is not a bar to a subsequent pros-
ecution for continuing the offense thereafter, as this is a
new violation of the law. State v. Hinson, 209 N. C. 187,
190, 183 S. E. 397.
Sufficient Evidence to Show Willful Abandonment and
Failure to Support Minor Child. — Evidence that defendant
refused to support his minor child although repeated de-
mands were made on him after the parties had returned to
this State, is held to show that the offense of willful aban-
donment and failure to support said minor child was com-
mitted by the defendant in this State, since this section
provides that the abandonment by the father of a minor
child shall constitute a continuing offense. State v. Hin-
son, 209 N. C. 187, 183 S. Fy. 397.
§ 4449. Order to support from husband's prop-
erty or earnings.
Judgment Entered without Notice after Default in Pay-
ment Is Void.— In State v. Brooks, 211 N. C. 702, 703, 191
S. E- 749, an order was entered requiring the defendant to
pay into the clerk's office for the support and maintenance
of his children certain monthly stipulated amounts, after in-
dictment under § 4447. Default having been made in said
payments, judgment was entered upon the defendant's orig-
inal, plea without his knowledge or presence, and the de-
fendant was sentenced to two years on the road. It was
held that the judgment was void because entered without
the knowledge or presence of the accused.
Art. 38. Public Drunkenness
§ 4458. Local: Public drunkenness
1. By a fine of not more than fifty dollars, or by
imprisonment for not more than thirty days, in
the counties of Alamance, Ashe, Avery, Bruns-
wick, Catawba, Cherokee, Clay, Cleveland, Dare,
Davie, Duplin, Franklin, Gaston, Graham, Greene,
Haywood, Henderson, Hyde, Jackson, Johnston,
Lincoln, Macon, Madison, McDowell, Mecklen-
burg, Mitchell, Moore, Northampton, Orange,
Pitt, Richmond, Rutherford, Scotland, Stanly, Un-
ion, Vance, Warren, Washington, Wilkes and
Yadkin, in the townships of Fruitville and Poplar
branch in Currituck county, and at Pungo in Beau-
fort county. (1907, cc. 305, 785, 900; 1908, c. 113;
1909, c. 815; P. L. 1915, c. 790; P. L. 1917, cc. 447,
475; P. L. 1919, cc. 148, 200; 1935, cc. 49, 208; 1937,
cc. 46, 9-6, 286, 329, 443.)
13. In Guilford and Surry counties, by a fine,
for the first offense, of not more than fifty dollars,
or imprisonment for not more than thirty days;
for the second offense within a period of twelve
months by a fine of not more than one hundred
dollars, or imprisonment for not more than sixty
days; and for the third offense within any twelve
months' period, such third offense to be declared
a misdemeanor, punishable as a misdemeanor,
within the discretion of the court. (1935, c. 207;
1937, c. 203.)
15. In Edgecombe county, by a fine, for the first
offense, of not more than fifty dollars ($50.00), or
imprisonment for not more than thirty days; for
the second offense within a period of twelve
months, by a fine of not more than one hundred
dollars ($100.00), or imprisonment for not more
than sixty days; and for the third offense within
any twelve months' period such offense is declared
a misdemeanor, punishable as a misdemeanor
within the discretion of the court. (1937, c. 95.)
Editor's Note. — The 1937 amendments made subsection 13
applicable to Surry county, and added subsection 15. The
amendments also inserted several counties in the list in
subsection 1 as follows: C. 46, Duplin; c. 96, Johnston; c.
286, Avery, Davie, Mitchell, Wilkes and Yadkin; c. 329,
Alamance; c. 443, Brunswick. Public I,aws 1937, c. 68,
repealed subsection 14 relating to Iredell county. The rest
of the section, not being affected by the amendment, is not
set out here.
Art. 41. Regulation of Employer and Employee
§ 4476. Witness required to give self-criminat-
ing evidence; no suit or prosecution to be founded
thereon.
For an article discussing the limits to self-incrimination,
see 15 N. C. baw Rev., No. 3, p. 229.
Art. 47. Miscellaneous Police Regulations
§ 4506. Operating automobile while intoxicated.
Operation of Vehicle Imports Motion.— In a prosecution
under this section defendant testified that he was not driv-
ing the truck, but that the driver got out to examine the
motor when the truck stalled, and that defendant placed
his foot on the brake to keep the truck from rolling back-
ward. The court charged the jury to the effect that hold-
ing his foot on the brake to keep the truck from rolling
backward was an operation of the truck within the mean-
ing of the statute. Held: The operation of a motor vehicle
within the meaning of the statute imports motion of the
vehicle, and does not include the acts of defendant as tes-
tified to by him. State v. Hatcher, 210 N. C. 55, 185 S. F.
435.
Cited in State v. McKnight, 210 N. C. 57, 185 S. E. 437.
[ 122
§ 4511(g)
CRIMINAL PROCEDURE
§ 4548(a)
§ 4511(g). Placing trash, refuse, etc., within five
hundred yards of hard-surfaced highway. —
Provided however, this section shall not apply
to the counties of Alleghany, Ashe, Avery, Bruns-
wick, Columbus, Davidson, Duplin, Forsyth,
Franklin, Granville, Halifax, Lincoln, Madison,
Mitchell, Montgomery, Moore, Person, Richmond,
Rockingham, Scotland, Stanly, Stokes, Surry,
Swain, Vance, Watauga, Warren, Wilson and
Yancey, Macon, Jackson, Gates, Lenoir, Bertie,
Cabarrus, Buncombe, Transylvania, Martin, Cas-
well, Rowan, Guilford, and Hyde. (1935, c. 457;
1937, c. 446.)
Editor's Note. — The 1937 amendment struck out "Anson"
from the list of counties appearing in the proviso of this sec-
tion. The rest of the section, not being affected by the
amendment, is not set out here.
§ 4511(h). Tattooing prohibited. — It shall be
unlawful for any person or persons to tattoo the
arm, limb, or any part of the body of any other
person under age of twenty-one years of age. Any
one violating the provisions of this section shall
be guilty of a misdemeanor and upon conviction
shall be fined or imprisoned in the discretion of
the court. (1937, c. 112, ss. 1, 2.)
CHAPTER 83
CRIMINAL PROCEDURE
Art. 1. General Provisions
§ 4516. Fees allowed counsel assigned to defend
in capital case. — Whenever an attorney is ap-
pointed by the judge to defend a person charged
with a capital crime, he shall receive such fee for
performing this service as the judge may allow;
but the judge shall not allow any fee until he is
satisfied that the defendant charged with the capi-
tal crime is not able to employ counsel. The fees
so allowed by the judge shall be paid by the
county in which the indictment was found. (1917,
c. 247; 1937, c. 226.)
Editor's Note.— Prior to the 1937 amendment the fee al-
lowed was not to exceed twenty- five dollars.
Art. 2. Warrants
§ 4524. Warrant issued; contents.
For article discussing requisites of warrant, see 15 N.
C. Law Rev., No. 2, p. 101.
Art. 3. Search Warrants
§ 4530(1). Warrant issued without affidavit and
examination of complainant or other person; evi-
dence discovered thereunder incompetent. — Any
officer who shall sign and issue or cause to be
signed and issued a search warrant without first
requiring the complainant or other person to sign
an affidavit under oath and examining said person
or complainant in regard thereto shall be guilty of
a misdemeanor; and no facts discovered by reason
of the issuance of such illegal search warrant shall
be competent as evidence in the trial of any ac-
tion. (1937, c. 339, s. lJ/2.)
Editor's Note. — The caption of the act from which this
section was codified, relates only to the requirement that
all peace officers give bond. See § 323(b).
This section makes one important change in criminal pro-
cedure. Unlike the federal and the majority of state ju-
risdictions, North Carolina has always admitted evidence
obtained by an illegal search. The new law provides that
evidence obtained by a search made pursuant to an ille-
gally issued search warrant cannot be admitted in evi-
dence. This leaves open the question whether evidence ob-
tained by an illegal search made without any search war-
rant would be admissible. 15 N. C. Law Rev., No. 4, p.
343.
Art. 5. Arrest
§ 4542. Persons present may arrest for breach
of peace.
For an article on the law of arrest in North Carolina, see
15 N. C. Law Rev., No. 2, p. 101.
§ 4543. Arrest for felony, without warrant.
Right of Private Person to Arrest. —
In State v. Stancill, 128 N. C. 606, 609, 38 S. F. 926, 928,
the court says: "A private citizen has the right to arrest
a felon, whether he is present when the felony is committed
or not. When he is not present, it devolves on him to show
that the felony, for which he arrested, had been committed."
15 N. C. Law Rev., No. 2, p. 103.
§ 4544. When officer may arrest without war-
rant.
For a discussion of arrest without warrant, see 15 N. C.
Law Rev., No. 2, p. 101.
Admissible Evidence in Action for Unlawful Arrest. — An
officer may make an arrest without a warrant when he acts
in good faith and has reasonable grounds to believe that a
felony has been committed, and that a particular person is
guilty thereof and might escape unless arrested, and in an
action against an officer for malicious and unlawful arrest,
evidence that a robbery had been committed is held com-
petent upon the issue, and defendant's evidence tending to
show good faith and that he was acting within the provi-
sions of the statute in arresting plaintiffs was properly
submitted to the jury. Hicks v. Nivens, 210 N. C. 44, 185
S. F. 469.
§ 4546. When officer may break and enter
houses.
Where an officer comes armed with process founded on a
breach of the peace, he may, after demand of admittance
for the purpose of making the arrest, and refusal of the
occupant to open the doors of a house, lawfully break them
in order to effect an entrance and if he act in good faith
in doing so, both he and his posse comitatus will be pro-
tected. 15 N. C. Law Rev., No. 2, p. 125, citing State v.
Mooring, 115 N. C. 709, 20 S. F- 182.
§ 4547. Persons summoned to assist in arrest.
Policeman Given Same Authority as Sheriff within Town
Limits. — A policeman has the authority under general stat-
ute to deputize a citizen to aid him in serving a warrant
for breach of the peace, a policeman being given the same
authority, within the town limits, in making arrests as a
sheriff. Tomlinson v. Norwood, 208 N. C. 716, 182 S. F-
659.
§ 4548. Procedure on arrest without warrant.
Custody of /Prisoner. — If offender is arrested at a time and
under such circumstances as he cannot be carried immedi-
ately before a justice, the officer may keep him in custody,
commit him to jail or the lock-up, or even tie him, ac-
cording to the nature of the offence and the necessity of
the case. 15 N. C. Law Rev., No. 2, p. 127, citing State v.
Freeman, 86 N. C. 683.
§ 4548(a). Arresting officer to inform offender
of charge, allow bail except in capital cases, and
permit communication with counsel or friends. —
Upon the arrest, detention, or deprivation of the
liberties of any person by an officer in this state,
with or without warrant, it shall be the duty of
the officer making the arrest to immediately in-
form the person arrested of the charge against
him, and it shall further be the duty of the officer
making said arrest, except in capital cases, to have
bail fixed in a reasonable sum, and the person so
arrested shall be permitted to give bail bond; and
it shall be the duty of the officer making the ar-
rest to permit the person so arrested to communi-
cate with counsel and. friends immediately, and
[ 123
§ 4550
CRIMINAL PROCEDURE
§ 4556(7)
the right of such persons to communicate with
counsel and friends shall not be denied.
Any officer who shall violate the provisions of
this section shall be guilty of a misdemeanor and
shall be fined or imprisoned, or both, in the discre-
tion of the court. (1937, c. 257, ss. 1, 2.)
Art. 6. Fugitives from Justice
§ 4550. Fugitives from another state arrested.
For a discussion of this and pertinent sections in con-
nection with the law of arrest in this state, see 15 N. C.
I,aw Rev., No. 2, p. 101.
Art. 6A. Extradition
§§ 4556(a) -4556(y): Repealed by Public Laws
1937, c. 273, s. 29.
The repealing act is codified as § 4556(1) et seq.
§ 4556(1). Definitions. — Where appearing in
this article the term "governor" includes any per-
son performing the functions of governor by au-
thority of the law of this state. The term "execu-
tive authority" includes the governor, and any
person performing the functions of governor in a
state other than this state. The term "state," re-
ferring to a state other than this state, includes
any other state or territory, organized or unor-
ganized, of the United States of America. (1937,
c. 273, s. 1.)
Editor's Note. — The repealed extradition law, Public Laws
1931, c. 124, formerly codified as §§ 4556(a)-4556(y), seemed
to provide for extradition proceedings only when the crime
with which the accused was charged was punishable — in
the state where committed — by death or imprisonment for
more than one year in the state's prison, or where the crime
consisted of abandonment of wife or children. However, the
supreme court indicated in the case of In re Hubbard, 201
N. C. 472, 160 S. E. 569, 81 A. I,. R. 547, that a person
could be extradited for any crime. The new extradition
law is in accord with In re Hubbard, specifically provid-
ing for the extradition of a person accused of any crime,
whether felony or misdemeanor. Furthermore, provision is
made for return to a demanding state of a person who
intentionally commits an act outside of the demanding
state resulting in a crime in the demanding state. At last
the extradition laws cover a situation such as existed in
State v. Hall, 115 N. C. 811, 20 S. E. 729, 44 Am. St. Rep.
501, 28 Iv. R. A. 289, where a man standing in North Car-
olina shot and killed a man in Tennessee, and North Car-
olina refused to return the murderer because he had never
been in Tennessee. In other respects the new extradition
law is substantially the same as the 1,931 law. 15 N. C.
Law Rev., No. 4, pp. 343, 344.
§ 4556(a). Duty of governor as to fugitives
from justice of other states. — Subject to the pro-
visions of this article, the provisions of the con-
stitution of the United States controlling, and any
and all acts of congress enacted in pursuance
thereof, it is the duty of the governor of this state
to have arrested and delivered up to the executive
authority of any other state of the United States
any person charged in that state with treason, fel-
ony or other crime, who has fled from justice and
is found in this state. (1937, c. 273, s. 2.)
§ 4556(3). Form of demand for extradition. —
No demand for the extradition of a person charged
with crime in another state shall be recognized by
the governor unless in writing alleging, except in
cases arising under section 4556(6), that the ac-
cused was present in the demanding state at the
time of the commission of the alleged crime, and
that thereafter he fled from the state, and accom-
panied by a copy of an indictment found or by in-
formation supported by affidavit in the state having
jurisdiction of the crime, or by a copy of an affida-
vit made before a magistrate there, together with a
copy of any warrant which was issued thereupon;
or 'by a copy of a judgment of conviction or of a
sentence imposed in execution thereof, together
with a statement hy the executive authority of the
demanding state that the person claimed has es-
caped from confinement or has broken the terms of
his hail, probation or parole. The indictment, in-
formation, or affidavit made before the magistrate
must substantially charge the person demanded
with having committed a crime under the law of
that state; and the copy of indictment, informa-
tion, affidavit, judgment of conviction or sentence
must be authenticated by the executive authority
making the demand. (1937, c. 273, s. 3.)
§ 4556(4). Governor may cause investigation to
be made. — When a demand shall be made upon
the governor of this state by the executive author-
ity of another state for the surrender of a person
so charged with crime, the governor may call up-
on the attorney general or any prosecuting officer
in this state to investigate or assist in investigat-
ing the demand, and to report to him the situation
and circumstances of the person so demanded,
and whether he ought to be surrendered. (1937,
c. 273, s. 4.)
§ 4556(5). Extradition of persons imprisoned
or awaiting trial in another state or who have left
the demanding state under compulsion. — When it
is desired to have returned to this state a person
charged in this state with a crime, and such per-
son is imprisoned or is held under criminal pro-
ceedings then pending against him in another
state, the governor of this state may agree with
the executive authority of such other state for the
extradition of such person before the conclusion
of such proceedings or his term of sentence in
such other state, upon condition that such person
be returned to such other state at the expense of
this state as soon as the prosecution in this state
is terminated.
The governor of this state may also surrender
on demand of the executive authority of any other
state any person in this state who is charged in
the manner provided in section 4556(23) with hav-
ing violated the laws of the state whose executive
authority is making the demand, even though such
person left the demanding state involuntarily.
(1937, c. 273, s. 5.)
§ 4556(6). Extradition of persons not present
in demanding state at time of commission of
crime. — The governor of this state may also sur-
render, on demand of the executive authority of
any other state, any person in this state charged
in such other state in the manner provided in sec-
tion 4556(3) with committing an act in this state,
or in a third state, intentionally resulting in a
crime in the state whose executive authority is
making the demand, and the provisions of this ar-
ticle not otherwise inconsistent, shall apply to
such cases, even though the accused was not in
that state at the time of the commission of the
crime, and has not fled therefrom. (1937, c. 273,
s. 6.)
§ 4556(7). Issue of governor's warrant of ar-
rest; its recitals. — If the governor decides that the
demand should be complied with, he shall sign a
warrant of arrest, which shall be sealed with the
124 ]
§ 4556(8)
CRIMINAL PROCEDURE
§ 4556(15)
state seal, and be directed to any peace officer or
other person whom he may think fit to entrust
with the execution thereof. The warrant must
substantially recite the facts necessary to the va-
lidity of its issuance. (1937, c. 273, s. 7.)
§ 4556(8). Manner and place of execution of
warrant. — Such warrant shall authorize the peace
officer or other person to whom directed to arrest
the accused at any time and any place where he
may be found within the state, and to command
the aid of all peace officers or other persons in
the execution of the warrant, and to deliver the
accused, subject to the provisions of this article
to the duly authorized agent of the demanding
state. (1937, c. 273, s. 8.)
§ 4556(9). Authority of arresting officer. — Every
such peace officer or other person empowered to
make the arrest shall have the same authority, in
arresting the accused, to command assistance
therein as peace officers have by law in the execu-
tion of any criminal process directed to them, with
like penalties against those who refuse their as-
sistance. (1937, c. 273, s. 9.)
§ 4556(10). Rights of accused person; applica-
tion for writ of habeas corpus. — No> person ar-
rested upon such warrant shall be delivered over
to the agent whom the executive authority de-
manding him shall have appointed to receive him
unless he shall first be taken forthwith before a
judge of a court of record in this state, who shall
inform him of the demand made for his surrender
and of the crime with which he is charged, and
that he has the right to demand and procure legal
counsel; and if the prisoner or his counsel shall
state that he or they desire to test the legality of
his arrest, the judge of such court of record shall
fix a reasonable time to be allowed him within
which to apply for a writ of habeas corpus. When
such writ is applied for, notice thereof, and of the
time and place of hearing thereon, shall be given
to the prosecuting officer of the county in which
the arrest is made and in which the accused is in
custody, and to the said agent of the demanding
state. (1937, c. 273, s. 10.)
§ 4556(11). Penalty for non-compliance with
preceding section. — Any officer who shall deliver
to the agent for extradition of the demanding state
a person in his custody under the governor's war-
rant, in wilful disobedience to the last section,
shall be guilty of a misdemeanor and, on convic-
tion, shall be fined not more than one thousand
dollars ($1,000.00) or be imprisoned not more than
six months, or both. (1937, c. 273, s. 11.)
§ 4556(12). Confinement in jail when necessary.
— The officer or persons executing the governor's
warrant of arrest, or the agent of the demanding
state to whom the prisoner may have been deliv-
ered, may, when necessary, confine the prisoner in
the jail of any county or city through which he
may pass; and the keeper of such jail must receive
and safely keep the prisoner until the officer or
person having charge of him is ready to proceed
on his route, such officer or person being charge-
able with the expense of keeping.
The officer or agent of a demanding state to
whom a prisoner may have been delivered follow-
ing extradition proceedings in another state, or to
whom a prisoner may have been delivered after
waiving extradition in such other state, and who
is passing through this state with such a prisoner
for the purpose of immediately returning such
prisoner to the demanding state may, when nec-
essary, confine the prisoner in the jail of any
county or city through which he may pass; and
the keeper of such jail must receive and safely keep
the prisoner until the officer or agent having
charge of him is ready to proceed on his route,
such officer or agent, however, being chargeable
with the expense of keeping: Provided, however,
that such officer or agent shall produce and show
to the keeper of such jail satisfactory written evi-
dence of the fact that he is actually transporting
such prisoner to the demanding state after a requi-
sition by the executive authority of such demand-
ing state. Such prisoner shall not be entitled to
demand a new requisition while in this state.
(1937, c. 273, s. 12.)
§ 4556(13). Arrest prior to requisition. — When-
ever any person within this state shall be charged
on the oath of any credible person before any
judge or magistrate of this state with the commis-
sion of any crime in any other state and, except
in cases arising under section 4556(6) with having
fled from justice, or with having been convicted of
a crime in that state and having escaped from con-
finement, or having broken the terms of his bail,
probation or parole, or whenever complaint shall
have been made before any judge or magistrate in
this state, setting forth on the affidavit of any
credible person in another state that a crime has
been committed in such other state, and that the
accused has been charged in such state with the
commission of the crime, and, except in cases aris-
ing under section 4556(6), has fled from justice, or
with having been convicted of a crime in that state
and having escaped from confinement, or having
broken the terms of his bail, probation or parole,
and is believed to be in this state, the judge or
magistrate shall issue a warrant directed to any
peace officer commanding him to apprehend the
person named therein, wherever he may be found
in this state, and to bring him before the same or
any other judge, magistrate or court who or which
may be available in or convenient of access to the
place where the arrest may be made, to answer
the charge or complaint and affidavit, and a certi-
fied copy of the sworn charge or complaint and
affidavit upon which the warrant is issued shall be
attached to the warrant. (1937, c. 273, s. 13.)
§ 4556(14). Arrest without a warrant. — The ar-
rest of a person may be lawfully made also by any
peace officer or a private person, without a war-
rant, upon reasonable information that the accused
stands charged in the courts of a state with a
crime punishable by death or imprisonment for a
term exceeding one year, but when so arrested the
accused must be taken before a judge or magis-
trate with all practicable speed, and complaint
must be made against him under oath setting
forth the ground for the arrest as in the preceding
section; and thereafter his answer shall be heard
as if he had been arrested on a warrant. (1937,
c. 273, s. 14.)
§ 4556(15). Commitment to await requisition. —
If from the examination before the judge or mag-
[125]
§ 4556(16)
CRIMINAL PROCEDURE
§ 4556(23)
istrate it appears that the person held is the person
charged with having committed the crime alleged
and, except in cases arising under section 4556(6),
that he has fled from justice, the judge or magis-
trate must, by a warrant reciting the accusation,
commit him to the county jail for such a time not
exceeding thirty days and specified in the warrant,
as will enable the arrest of the accused to be made
under a warrant of the governor on a requisition
of the executive authority of the state having ju-
risdiction of the offense, unless the accused give
bail as provided in the next section, or until he
shall be legally discharged. (1937, c. 273, s. 15.)
§ 4556(16). Bail in certain cases; conditions of
bond. — Unless the offense with which the prisoner
is charged is shown to be an offense punishable by
death or life imprisonment under the laws of the
state in which it was committed, a judge or mag-
istrate in this state may admit the person arrested
to bail by bond, with sufficient sureties, and in
such sum as he deems proper, conditioned for his
appearance before him at a time specified in such
bond, and for his surrender, to be arrested upon
the warrant of the governor of this state. (1937,
c. 273, s. 16.)
§ 4556(17). Extension of time of commitment;
adjournment. — If the accused is not arrested un-
der warrant of the governor by the expiration of
the time specified in the warrant or bond, a judge
or magistrate may discharge him or may recom-
mit him for a further period not to exceed sixty
days, or a judge or magistrate judge may again
take bail for his appearance and surrender, as pro-
vided in section 4556(16), but within a period not
to exceed sixty days after the date of such new
bond. (1937, c. 273, s. 17.)
§ 4556(18). Forfeiture of bail. — If the prisoner
is admitted to bail and fails to appear and surren-
der himself according to the conditions of his
bond, the judge, or magistrate by proper order,
shall declare the bond forfeited and order his im-
mediate arrest without warrant if he be within
this state. Recovery may be had on such bond in
the name of the state as in the case of other bonds
given by the accused in criminal proceedings with-
in this state. (1937, c. 273, s. 18.)
§ 4556(19). Persons under criminal prosecution
in this state at time of requisition. — If a criminal
prosecution has been instituted against such per-
son under the laws of this state and is still pend-
ing, the governor, in his discretion, either may
surrender him on demand of the executive author-
ity of another state or hold him until he has been
tried and discharged or convicted and punished in
this state. (1937, c. 273, s. 19.)
§ 4556(20). Guilt or innocence of accused, when
inquired into. — The guilt or innocence of the ac-
cused as to the crime of which he is charged may
not 'be inquired into by the governor or in any
proceeding after the demand for extradition ac-
companied by a charge of crime in legal form as
above provided shall have been presented to the
governor, except as it may be involved in identify-
ing the person held as the person charged with the
crime. (1937, c. 273, s. 20.)
§ 4556(21). Governor may recall warrant or is-
sue alias. — The governor may recall his warrant
of arrest or may issue another warrant whenever
he deems proper. (1937, c. 273, s. 21.)
§ 4556(22). Fugitives from this state; duty of
governors. — Whenever the governor of this state
shall demand a person charged with crime or with
escaping from confinement or breaking the terms
of his bail, probation or parole in this state from
the executive authority of any other state, or from
the chief justice or an associate justice of the su-
preme court of the District of Columbia author-
ized to receive such demand under the laws of the
United States, he shall issue a warrant under the
seal of this state, to some agent, commanding him
to receive the person so charged if delivered to
him and convey him to the proper officer of the
county in this state in which the offense was com-
mitted. (1937, c. 273, s. 22.)
§ 4556(23). Application for issuance of requisi-
tion; by whom made; contents. — I. When the re-
turn to this state of a person charged with crime
in this state is required, the prosecuting attorney
shall present to the governor his written applica-
tion for a requisition for the return of the person
charged, in which application shall be stated the
name of the person so charged, the crime charged
against him, the approximate time, place and cir-
cumstances of its commission, the state in which
he is believed to be, including the location of the
accused therein, at the time the application is
made and certifying that, in the opinion of the
said prosecuting attorney, the ends of justice re-
quire the arrest and return of the accused to this
state for trial and that the proceeding is not in-
stituted to enforce a private claim.
II. When the return to this state is required of
a person who has been convicted of a crime in
this state and has escaped from confinement or
'broken the terms of his bail, probation or parole,
the prosecuting attorney of the county in which
the offense was committed, the parole board, or
the warden of the institution or sheriff of the
county, from which escape was made, shall pre-
sent to the governor a written application for a
requisition for the return of such person, in which
application shall be stated the name of the person,
the crime of which he was convicted, the circum-
stances of his escape from confinement or of the
breach of the terms of his bail, probation or pa-
role, the state in which he is believed to be, in-
cluding the location of the person therein at the
time application is made.
III. The application shall be verified by affida-
vit, shall be executed in duplicate and shall he ac-
companied by two certified copies of the indict-
ment returned, or information and affidavit filed,
or of the complaint made to the judge or magis-
trate, stating the offense with which the accused
is charged, or of the judgment of conviction or
of the sentence. The prosecuting officer, parole
board, warden or sheriff may also attach such fur-
ther affidavits and other documents in duplicate as
he shall deem proper to he submitted with such
application. One copy of the application, with the
action of the governor indicated by endorsement
thereon, and one of the certified copies of the in-
dictment, complaint, information and affidavits, or
of the judgment of conviction or of the sentence
shall be filed in the office of the secretary of state
[126]
§ 4556(24)
CRIMINAL PROCEDURE
§ 4614
to remain of record in that office. The other cop-
ies of all papers shall be forwarded with the gov-
ernor's requisition. (1937, c. 273, s. 23.)
§ 4556(24). Costs and expenses. — When the
crime shall be a felony, the expenses shall be paid
out of the state treasury, on the certificate of the
governor and warrant of the auditor; and in all
other cases they shall be paid out of the county
treasury in the county wherein the crime is al-
leged to have been committed. The expenses shall
be the actual traveling and subsistence costs of
the agent of the demanding state, together with
such legal fees as were paid to the officers of the
state on whose governor the requisition is made.
In every case the officer entitled to these expenses
shall itemize the same and verify them by his oath
for presentation, either to the governor of the
state, in proper cases, or to the board of county
commissioners, in cases in which the county pays
such expenses. (1937, c. 273, s. 24.)
§ 4556(25). Immunity from service of process
in certain civil actions. — A person brought into
this state by, or after waiver of, extradition based
on a criminal charge shall not be subject to serv-
ice of personal process in civil actions arising out
of the same facts as the criminal proceedings to
answer which he is being or has been returned
until he has been convicted in the criminal pro-
ceeding or, if acquitted until he has had reason-
able opportunity to return to the state from which
he was extradited. (1937, c. 273, s. 25.)
§ 4556(26). Written waiver of extradition pro-
ceedings. — Any person arrested in this state
charged with having committed any crime in an-
other state or alleged to have escaped from con-
finement, or broken the terms of his bail, proba-
tion or parole may waive the issuance and service
of the warrant provided for in sections 4556(7)
and 4556(8) and all other procedure incidental to
extradition proceedings, by executing or subscrib-
ing in the presence of a judge of any court of rec-
ord within this state a writing which states that
he consents to return to the demanding state:
Provided, however, that before such waiver shall
be executed or subscribed by such person it shall
be the duty of such judge to inform such person
of his rights to the issuance and service of a war-
rant of extradition and to obtain a writ of habeas
corpus as provided for in section 4556(10).
If and when such consent has been duly exe-
cuted it shall forthwith be forwarded to the office
of the governor of this state and filed therein. The
judge shall direct the officer having such person
in custody to deliver forthwith such person to the
duly accredited agent or agents of the demanding
state, and shall deliver or cause to be delivered to
such agent or agents a copy of such consent:
Provided, however, that nothing in this section
shall be deemed to limit the rights of the accused
person to return voluntarily and without formality
to the demanding state, nor shall this waiver pro-
cedure be deemed to be an exclusive procedure or
to limit the powers, rights or duties of the officers
of the demanding state or of this state. (1937, c.
273, s. 25a.)
§ 4556(27). Non-waiver by this state. — Nothing
in this article contained shall be deemed to consti-
tute a waiver by this state of its right, power or
privilege to try such demanded person for crime
committed within this state, or of its right, power
or privilege to regain custody of such person by
extradition proceedings or otherwise for the pur-
pose of trial, sentence or punishment for any
crime committed within this state, nor shall any
proceedings had under this article which result in,
or fail to result in, extradition be deemed a waiver
by this state of any of its rights, privileges or ju-
risdiction in any way whatsoever. (1937, c. 273,
s. 25b.)
§ 4556(28). No right of asylum; no immunity
from other criminal prosecution while in this
state. — After a person has been brought back to
this state by, or after waiver of extradition pro-
ceedings, he may be tried in this state for other
crimes which he may be charged with having
committed here as well as that specified in the req-
uisition for his extradition. (1937, c. 273, § 26.)
§ 4556(29). Interpretation. — The provisions of
this article shall be so interpreted and construed
as to effectuate its general purposes to make uni-
form the law of those states which enact it.
(1937, c. 273, s. 27.)
§ 4556(30). Short title.— This article may be
cited as the Uniform Criminal Extradition Act.
(1937, c. 273, s. 30.)
Art. 7. Preliminary Examination
§ 4571. Witnesses in lynching not privileged.
For a general discussion of
tion, see 15 N. C. Law Rev.,
the limits
No. 3, p.
to self-incrimina-
229.
Art. 8. Bail
§ 4574. Officers authorized to take bail, before
imprisonment.
As to authority of arresting officer to allow bail, see §
4548(a).
Art. 11. Venue
§ 4605. In county where death occurs.
The first "of" in the fourth line of this section in the
original should read "or."
§ 4608. Improper venue met by plea in abate-
ment; procedure.
Where Motion to Quash Indictment Was Correctly De-
nied.— Defendant moved to quash the indictment for re-
ceiving stolen goods on the ground that the evidence
showed that the property, if stolen, was stolen in another
county, and, if received by defendant, was received by him
in a third county. It was held that the motion to quash
was correctly denied since, under this section, the crime
is presumed to have been committed in the county laid
in the bill of indictment unless defendant aptly
plea in abatement.
836.
State v. Ray, 209 N. C. 772,
Art. 13. Indictment
enters a
184 S'. E.
§ 4613. Bill of particulars.
Where Motion in Arrest of Judgment Properly Denied.
—An indictment charging defendant disjunctively with
murder committed with malice, premeditation, and delibera-
tion and with murder committed in the perpetration of a
robbery, is not void for uncertainty, since either charge
constitutes murder in the first degree, and defendant's rem-
edy, if he desires more specific information is by motion for
a bill of particulars under this section, but a motion in
arrest of judgment after a verdict of guilty of murder in
the first degree, is properly denied. State v. Puckett, 211
N. C. 66, 189 S. E. 183.
§ 4614. Essentials of bill for homicide.
This section is an abbreviated form for a bill of indict-
ment for murder. State v. Puckett, 211 N. C. 66, 73, 189
S. E. 183.
127 1
§ 4615
CRIMINAL PROCEDURE
§ 4643.
Indictment under Section Held to Give Full Information
of Crime. — Where an indictment was drawn according to
this section the defendant was given full information of
the crime on which he was being tried. There was noth-
ing indefinite or uncertain about the bill of indictment. It
was in the alternative, but this was merely two counts
in one bill of indictment. State v. Puckett, 211 N. C. 66,
73, 189 S. E. 183.
Applied in State v. Kirkman, 208 N. C. 719, 182 S. E- 498;
State v. Dills, 210 N. C. 178, 185 S. E- 677.
Cited, in State v. Thornton, 211 N. C. 413, 190 S. E. 758;
State v. Godwin, 211 N. C. 419, 190 S. E- 761.
§ 4615. Form of bill for perjury.
Applied in State v. Rhinehart, 209 N. C. 150, 183 S. E-
388.
§ 4622. Separate counts; consolidation.
Reckless Driving and Passing Standing School Bus. — In-
dictments charging defendant with reckless driving and with
passing a standing school bus on the highway may be con-
solidated for trial as provided in this section. State v.
Webb, 210 N. C. 350, 186 S. E. 241.
It is permissible to join counts charging conspiracy and
successive steps thereafter taken by the respective conspira-
tors in executing the common design. State v. Anderson,
208 N. C. 771, 182 S. E. 643.
Consolidation Is within Discretionary Power of Trial Court.
— Defendant was tried separately in municipal court on two
warrants, each charging assault with a deadly weapon, but
upon different persons on separate occasions about fifteen
days apart. On appeal to the Superior Court, the court,
upon motion of the solicitor, consolidated the cases for trial.
Under the provisions of this section, the order of consoli-
dation was within the discretionary power of the trial court.
State v. Waters, 208 N. C. 769, 182 S. E- 483. See also,
State v. McLean, 209 N. C. 38, 182 S. E- 7C0, wherein in-
dictments charging embezzlement were consolidated.
Applied in State v. Lancaster, 210 N. C. 584, 187 S'. E-
802.
§ 4623. Bill or warrant not quashed for infor-
mality.
I. NATURE AND PURPOSE.
Purpose of Section. — The whole purpose of the law is to
administer justice and that law and order and orderly gov-
ernment may at all times be maintained. State v. Walls,
211 N. C. 487, 498, 191 S. E- 232.
II. GENERAL EFFECT.
Liberal Construction. —
Under this section bills and warrants are no longer sub-
ject to quashal "by reason of any informality or refine-
ment." State v. Anderson, 208 N. C. 771, 782, 182 S. E-
643.
Does Not Supply Essential Averments. —
In accord with original. See State v. Tarlton, 208 N. C.
734, 736, 182 S. E. 481.
Prisoner Is Held Although. Indictment Is Defective. —
Where the indictment should have been quashed because
defective in form the prisoner could still be held for a proper
bill under this section. State v. Callett, 211 N. C. 563, 564,
191 S. E. 27.
Cited in State v. Puckett, 211 N. C. 66, 189 S. E- 183.
III. DEFECTS CURED.
B. Omissions and Mistakes.
Failure to Repeat Names in Charging Scienter. — Where
defendants contended that a count in the indictment charg-
ing receiving stolen goods was fatally defective in that the
names of defendants were not repeated in charging scienter,
it was held that the defect was merely an informality or
refinement not sufficient to support a quashal of the in-
dictment, the charge being plain, explicit and sufficient to
enable the court to proceed to judgment. State v. Whitley,
208 N. C. 661, 182 S'. E- 338.
§ 4625. Defects which do not vitiate.
In General. —
The modern tendency is against technical objections which
do not affect the merits of the case. Hence judgments are
not to be stayed or reversed for nonessential or minor de-
fects. State v. Anderson, 208 N. C. 771, 782, 182 S. E- 643.
A charge in a murder prosecution in the alternative was
not a vitiating defect, and the motion in arrest after ver-
dict was properly denied, such motion being available only
for vitiating defects upon the record proper. State v.
Puckett, 211 N. C. 66, 189 S. E- 183.
Art. 15. Trial in Superior Court
§ 4632. Prisoner standing mute, plea "not
guilty'* entered.
Deaf Mutes. —
In State v. Early, 211 N. C. 189, 189 S. E. 668, the court,
upon finding that defendant was a deaf mute, subpoenaed
an interpreter, who after being duly sworn and after the
reading of the indictment, interpreted and explained the in-
dictment to defendant. After defendant had indicated to
the interpreter that he understood the indictment, the inter-
preter translated the solicitor's question of whether defend-
ant was guilty or not guilty, and upon a negative reply
given through the interpreter, a plea of not guilty was en-
tered. It was held that there was no error on the arraign-
ment of defendant or in the acceptance of his negative an-
swer as a plea of not guilty.
§ 4636(a). Waiving jury trial; pleas; demurrer
to evidence.
The constitutional right to trial by jury in the Superior
Court, art. I, § 13, may not be waived by the accused
after a plea of not guilty, nor may the General Assem-
bly permit this to be done by statute, hence this section
is unconstitutional in that it provides, in effect, for trial
by the court as upon a plea of "not guilty," when a de-
fendant enters a "conditional plea" and a judgment en-
tered upon a trial under this section will be stricken out
upon appeal and the cause remanded for trial according to
law. State v. Camby, 209 N. C. 50, 182 S. E- 715, followed
in State v. Crump, 209 N. C. 52, 182 S. E- 716. See also,
State v. Hill, 209 N. C. 53, 182 S. E- 716.
Upon defendant's appeal from judgment and sentence by
the court after defendant had entered a conditional plea of
guilty under this section, the case will be remanded in or-
der that a jury may pass upon defendant's guilt or inno-
cence in accordance with defendant's constitutional right.
State v. Ellis, 210 N. C. 170, 185 S. E- 662.
§ 4640. Conviction for a less degree or an at-
tempt.
Application of Section.— Where there are several counts in
a bill, if the jury find the defendant guilty on one count
and say nothing in their verdict concerning the other courts,
it will be equivalent to a verdict of not guilty as to them.
This principle should not be confused with the practice, au-
thorized by this section, which permits the conviction of a
"lesser degree of the same crime" when included in a sin-
gle count. State v. Hampton, 210 N. C. 283, 284, 186 S. E.
251.
§ 4642. Verdict for murder in first or second
degree.
Quoted in State v. Puckett, 211 N. C. 66, 189 S. E- 183.
Cited in State v. Thornton, 211 N. C. 413, 190 S. E. 758;
State v. Godwin, 211 N. C. 419, 190 S. E- 761.
§ 4643. Demurrer to the evidence.
On motion to nonsuit, the court is required merely to as-
certain whether there is any competent evidence to sustain
the allegations of the indictment. State v. Landin, 209 N.
C. 20, 182 S. E. 689.
Compared with Section 567. —
In accord with original. See State v. Ormond, 211 N.
C. 437, 191 S. E- 22.
Sufficiency of Evidence May Be Challenged if Motion
Timely Made. —
A motion for judgment of nonsuit, under this section,
must be made at the close of the state's evidence in order
for a motion thereunder made at the close of all the evi-
dence to be considered. State v. Ormond, 211 N. C. 437,
439, 191 S. E. 22.
Sufficiency of Evidence.— In accord with first paragraph
in original. See State v. Atlantic Ice, etc., Co., 210 N.
C. 742, 188 S. E- 412. See also, State v. Eubanks, 209 N.
C. 758, 763, 184 S. E- 839.
Where the evidence for the state where the defendants
are charged with fornication and adultery, shows no more
than that the defendants had opportunities to commit the
crime, on motion of the defendants, the action should be
dismissed, and a verdict of not guilty, entered under this
section. State v. Woodell, 211 N. C. 635, 636, 191 S. E-
334.
The court said in State v. Woodell, 211 N. C. 635, 636,
191 S. E. 334, citing State v. Prince, 182 N. C. 788, 108
S. E- 330, that when it is said that there is no evidence
to go to the jury, it does not mean that there is liter-
ally and absolutely none, for as to this there could be no
[128]
§ 4647
CRIMINAL PROCEDURE
§ 4665(3)
room for any controversy, but there is none which ought
reasonably to satisfy the jury that the fact sought to be
proved is established.
Motion will not lie for failure of the state to offer evi-
dence of a nonessential averment in the indictment, when
each essential element of the offense is supported by com-
petent evidence. State v. Atkinson, 210 N. C. 661, 188
S. E- 73.
Demurrer to the Evidence Properly Sustained. — See State
v. S'ims, 208 N. C. 459, 460, 181 S. E- 269, wherein defend-
ant's identity was not established; State v. White, 208 N.
C. 537, 181 S. E. 558, wherein defendant's identity was not
established; State v. Eandin, 209 N. C. 20, 22, 182 S. E. 689,
wherein defendant's negligence was held harmless; State v.
Creech, 210 N. C. 700, 188 S. E. 316, wherein owner of car
did not know driver was intoxicated.
Demurrer to the Evidence Properly Denied. — See State v.
Webber, 210 N. C. 137, 185 S. E- 659, wherein evidence
showed defendant was driving at fifty miles an hour before
collision; State v. Smith, 211 N. C. 93, 189 S. E. 175, wherein
evidence showed felonious intent to commit rape.
Applied in State v. Callett, 211 N. C. 563, 191 S. E. 27;
State v. McDonald, 211 N. C. 672, 191 S. E. 733.
Cited in State v. Anderson, 208 N. C. 771, 182 S. E. 643;
State v. Jones, 209 N. C. 49, 182 S. E- 699; State v. Camby,
209 N. C. 50, 182 S. E. 715; State v. Eangley, 209 N. C.
178, 183 S. E.. 526; State v. Hinson, 209 N. C. 187, 183 S. E-
397; State v. Eewis, 209 N. C. 191, 183 S. E- 357; State v.
Oakley, 210 N. C. 206, 186 S. E- 244; State v. Gallman, 210
N. C. 288, 186 S. E. 236; State v. Evans, 211 N. C. 458, 190
S. E. 724.
Art. 16. Appeal
§ 4647. Appeal from justice, trial de novo.
See the note to § 1549 in this Supplement.
Cited in State v. Boykin, 211 N. C. 407, 191 S. E- 18.
§ 4648. Justice to return papers and findings to
superior court.
See the note to § 1549 in this Supplement.
Cited in State v. Boykin, 211 N. C. 407, 191 S. E. 18.
§ 4649. When state may appeal.
Applied in State v. Parker, 209 N. C. 32, 182 S. E- 723.
§ 4650. Appeal by defendant to supreme court.
Appeal Lies Only from Final Judgment. — The right to ap-
peal is wholly statutory, and a defendant may appeal only
from a conviction or from some judgment that is final in
its nature. Thus an appeal from the denial of defendant's
plea in abatement will be dismissed as being an appeal from
an interlocutory judgment. State v. Blades, 209 N. C. 56,
182 S. E. 714, wherein the court inadvertently cited § 460.
In the instant case, the defendant was not convicted un-
der § 276(a) ; he was acquitted. There was no judgment on
conviction, or judgment prejudicial to the defendant in its
nature final. The defendant therefore had no right to appeal
to the Supreme Court and it is without jurisdiction to enter-
tain the appeal, or to decide the questions presented by de-
fendant's assignment of error. State v. Hiatt, 211 N. C.
116, 117, 189 S. E. 124.
§ 4651. Defendant may appeal without security
for costs. — ■
And where it shall appear to the presiding
judge that a defendant who has been convicted of
a capital felony, or having been tried upon a bill
of indictment charging a capital felony, has been
convicted of a less offense, and who has prayed
an appeal to< the supreme court from the sentence
of death or other sentence pronounced against
him upon such conviction is unable to defray the
cost of perfecting his appeal on account of his
poverty, it shall be the duty of the county in
which the alleged capital felony was committed,
upon the order of such judge, to pay the neces-
sary cost of obtaining a transcript of the proceed-
ings had and the evidence offered on the trial
from the court reporter for the use of the defend-
ant and the necessary cost of preparing the req-
uisite copies of the record and briefs which the
defendant is required to file in the supreme court
under the rules of said court.
(1937, c. 330.)
Editor's Note. — As only the second sentence was affected
by the 1937 amendment, the rest of the section is not set
out here. The amendment extends the 1933 law to include
defendants who have been tried on an indictment for a cap-
ital felony and convicted of a lesser offense. Again the stat-
ute would apply only in cases where counsel had been as-
signed by the court. 15 N. C. Eaw Rev., No. 4, p. 347.
The requirements of this section are mandatory and juris-
dictional, "and unless the statute is complied with, the ap-
peal is not in this Court, and we can take no cognizance
of the case, except to dismiss it from our docket." State
v. Holland, 211 N. C. 284, 285, 189 S. E- 761, citing Honey-
cutt v. Watkins, 151 N. C. 652, 65 S. E- 762.
And are not subject to indulgences or waiver. State v.
Holland, 211 N. C. 284, 286, 189 S. E- 761.
There is no authority for granting an appeal in forma
pauperis without a proper supporting affidavit. State v.
Holland, 211 N. C. 284, 285, 189 S. E. 761.
Failure to Prosecute According to Rules of Court. —
In accord with original. See State v. Holland, 211 N. C.
284, 189 S. E. 761, where it was held that the affidavit not
containing the assertion that "the application is in good
faith," prevented the court having jurisdiction.
§ 4654. Appeal not to vacate judgment; stay of
execution.
Effect of Failure to Serve Statement of Case within Time
Fixed. — Where defendants fail to make out and serve their
statement of case on appeal within the time fixed, they lose
their right to prosecute the appeal, and the motion of the
attorney- general to docket and dismiss will be allowed, but
where defendants have been convicted of a capital felony,
this will be done only after an inspection of the record for
errors appearing upon its face. State v. Allen, 208 N. C.
672, 182 S. E. 140. See also, State v. McEeod, 209 N. C.
54, 182 S. E- 713.
Art. 17. Execution
§ 4657. Death by administration of lethal gas.
This section applies only to crimes committed after the
effective date of the statute, 1 July-, 1935, and it will not
support a sentence of death by lethal gas imposed for a
capital crime committed prior to the effective date of the
statute although defendant was tried and convicted after the
effective date thereof. State v. Hester, 209 N. C. 99, 182 S.
E- 738. See also, State v. Dingle, 209 N. C. 293, 183 S. E-
376; State v. McNeill, 211 N. C. 286, 287, 189 S. E- 872.
Cited in State v. Home, 209 N. C. 725, 184 S. E. 470.
Art. 18. Suspension of Sentence and Probation
§ 4665(1). Suspension of sentence and proba-
tion.— After conviction or plea of guilty or nolo
contendere for any offense, except a crime pun-
ishable by death or life imprisonment, the judge
of any court of record with criminal jurisdiction
may suspend the imposition or the execution of
a sentence and place the defendant on probation
or may impose a fine and also place the defend-
ant on probation. (1937, c. 132, s. 1.)
For a discussion of the act from which this article was
codified, see 15 N. C. Taw Rev., No. 4, p. 345.
§ 4665(2). Investigation by probation officer. —
When directed by the court the probation officer
shall fully investigate and report to the court in
writing the circumstances of the offense and the
criminal record, social history, and present condi-
tion of the defendant, including, whenever prac-
ticable, the findings of a physical and mental ex-
amination of the defendant. When the services
of a probation officer are available to the court, no
defendant charged with a felony, and, unless the
court shall direct otherwise in individual cases,
no other defendant shall be placed on probation
or released under suspension of sentence until the
report of such investigation shall have been pre-
sented to and considered by the court. (1937, c.
132, s. 2.)
§ 4665(3). Conditions of probation. — The court
shall determine and may impose, by order duly
entered, and may at any time modify the condi-
tions of probation and may include among them
N. C. Supp.— 9
[129]
§ 4665(4)
CRIMINAL PROCEDURE
§ 4665(8>
the following, or any other: That the probationer
shall:
(a) Avoid injurious or vicious habits;
(b) Avoid persons or places of disreputable or
harmful character;
(c) Report to the probation officer as directed;
(d) Permit the probation officer to visit at his
home or elsewhere;
(e) Work faithfully at suitable employment as
far as possible;
(f) Remain within a specified area;
(g) Pay a fine in one or several sums as directed
by the court;
(h) Make reparation or restitution to the ag-
grieved party for the damage or loss caused by his
offense, in an amount to be determined by the
court;
(i) Support his dependents. (1937, c. 132, s. 3.)
§ 4665(4). Termination of probation, arrest, sub-
sequent disposition. — The period of probation or
suspension of sentence shall not exceed a period
of five years and shall be determined by the judge
of the court and may be continued or extended
within the above limit. Upon the satisfactory ful-
fillment of the conditions of probation or suspen-
sion of sentence the court shall by order duly en-
tered discharge the defendant. At any time dur-
ing the period of probation or suspension of
sentence, the court may issue a warrant and cause
the defendant to be arrested for violating any of
the conditions of probation or suspension of sen-
tence. Any police officer, or other officer with
power of arrest, upon the request of the proba-
tion officer, may arrest a probationer without a
warrant. In case of an arrest without a warrant
the arresting officer shall have a written statement
signed by said probation officer setting forth that
the probationer has, in his judgment, violated the
conditions of probation; and said statement shall
be sufficient warrant for the detention of said pro-
bationer in the county jail, or other appropriate
place of detention, until said probationer shall be
brought before the judge of the court. Such pro-
bation officer shall forthwith report such arrest
and detention to the judge of the court, and sub-
mit in writing a report showing in what manner
the probationer has violated probation. Upon such
arrest, with or without warrant, the court shall
cause the defendant to be brought before it and
may revoke the probation or suspension of sen-
tence, and shall proceed to deal with the case as
if there had been no probation or suspension of
sentence. (1937, c. 132, s. 4.)
§ 4665(5). Establishment and organization of a
state probation commission. — There is hereby es-
tablished a state probation commission to be com-
posed of five members, who shall be appointed by
the governor and shall serve without a salary as
members of such commission, but shall receive
their actual traveling expenses while in the per-
formance of their official duties. The first ap-
pointments shall be made within thirty days after
this article shall take effect, and shall be made
in such manner that the term of one member of
the state probation commission shall expire each
year. Their successors shall be appointed by the
governor wTithin thirty days thereafter for terms
of five years each. All vacancies occurring among
the members shall be filled as soon as practicable
thereafter by the governor for the unexpired terms.
This commission shall be deemed a "commission
for special purpose" within the meaning of the
language of section seven of Article XIV of the
Constitution, and the membership thereof may be
composed of persons holding other official posi-
tions in the state, if the governor shall so elect.
The state probation commission shall organize
immediately after the appointment of the first
members thereof, and elect a chairman from its
members. Thereafter a chairman shall be elected,
annually between January fifteenth and January
thirtieth of each year. (1937, c. 132, s. 5.)
§ 4665(6). Duties and powers of the commis-
sion; meetings; appointment of director of proba-
tion; qualifications.— With respect to the adminis-
tration of probation in the state, except cases,
within the jurisdiction of the juvenile courts, the
state probation commission shall exercise general
supervision; formulate policies; adopt general
rules, not inconsistent with law, to regulate meth-
ods of procedure; and set standards for personnel..
It shall meet at stated times to be fixed by it not
less often than once every three months, and on
call of its chairman, to consider any matters re-
lating to probation in the state.
The state probation commission, with the ap-
proval of the governor, shall appoint a director of
probation, who shall serve as its executive sec-
retary, and shall receive a salary of not less than
three thousand six hundred ($3,600.00) dollars
nor more than four thousand five hundred
($4,500.00) dollars per annum and who shall give
his entire time to the work. When the necessity
of the service requires, it shall appoint one or
more assistants and fix their salaries.
The person appointed as director of probation
shall be qualified by education, training, experi-
ence and temperament for the duties of the office..
(1937, c. 132, s. 6.)
§ 4665(7). Duties of the director of probation;
appointment of probation officers; reports. — The
director of probation shall appoint, subject to the
approval of the state probation commission, such
probation officers as are required for service in
the state and such clerical assistance as may be
necessary: Provided, that before any persons
other than the director of probation shall be ap-
pointed, the state probation commission shall
make up and submit to the governor a budget
covering its proposed organization and expendi-
tures, and no fund shall be available to carry out
the purpose of this article except to the extent
that said budget is approved first by the state
highway and public works commission, and then
by the director of the budget.
The director of probation shall direct the
work of the probation officers appointed under
this article. He shall consult and cooperate with
the courts and institutions in the development of
methods and procedure in the administration of
probation, and shall arrange conference of pro-
bation officers and judges. He shall make an an-
nual written report with statistical and other in-
formation to the probation commission and the
governor. (1937, c. 132, s. 7.)
§ 4665(8). Assignment and compensation and
oath of probation officers. — Probation officers ap-
pointed under this article shall be assigned to
[ 130
§ 4665(9)
AGRICULTURE
§ 4667
serve in such courts or districts or otherwise as
the director of probation may determine. They
shall be paid annual salaries to be fixed by the
probation commission, and shall also> be paid
traveling and other necessary expenses incurred
in the performance of their official duties as pro-
bation officers when such expense accounts- have
been authorized and approved by the director of
probation.
Each person appointed as a probation officer
shall take an oath of office before the judge of the
court or courts in which he is to serve, which oath
shall be as follows:
"I, , do solemnly and sincerely
swear that I will be faithful and bear true alle-
giance to the State of North Carolina, and to the
constitutional powers and authorities which are or
may be established for the government thereof;
and that I will endeavor to support, maintain, and
defend the Constitution of said State, not incon-
sistent with the Constitution of the United States,
to the best of my knowledge and ability; so help
me God,"
and shall be noted of record by the clerk of the
court. (1937, c. 132, s. 8.)
§ 4665(9). Duties and powers of the probation
officers. — A probation officer shall investigate all
cases referred to him for investigation by the
judges of the courts or by the director of proba-
tion, and shall report in writing thereon. He shall
furnish to each person released on probation un-
der his supervision a written statement of the con-
ditions of probation and shall instruct him regard-
ing the same. Such officer shall keep informed con-
cerning the conduct and condition of each person
on probation under his supervision by visiting, re-
quiring reports, and in other ways, and shall re-
port thereon in writing as often as the court or
the director of probation may require. Such offi-
cer shall use all practicable and suitable methods,
not inconsistent with the conditions imposed by
the court, or the director of probation, to aid and
encourage persons on probation to bring about
improvement in their conduct and condition. Such
officer shall keep detailed records of his work;
shall make such reports in writing to the director
of probation as he may require; and shall perform
such other duties as the director of probation may
require. A probation officer shall have, in the ex-
ecution of his duties, the powers of arrest and, to
the extent necessary for the performance of his
duties, the same right to execute process as is now
given, or that may hereafter be given by law, to
the sheriffs of this state. (1937, c. 132, s. 9.)
§ 4685(10). Co-operation with commissioner of
parole and officials of local units. — It shall be the
duty of the director of probation and the commis-
sioner of parole to co-operate with each other to
the end that the purposes of probation and parole
may be more effectively carried out. When re-
quested, each shall make available to the other
case records in his possession, and in cases of
emergency, where time and expense can be saved,
shall provide investigation service.
It is hereby made the duty of every city, county,
or state official or department to render all as-
sistance and co-operation within his or its funda-
mental power which may further the objects of
this article. The state probation commission, the
[13
director of probation, and the probation officers
are authorized to seek the co-operation of such of-
ficials and departments, and especially of the
county superintendents of public welfare and of
the state board of charities and public welfare.
(1937, c. 132, s. 10.)
§ 4665(11). Records treated as privileged infor-
mation.— All information and data obtained in the
discharge of official duty by any probation officer
shall be privileged information, shall not be re-
ceivable as evidence in any court, and shall not
be disclosed directly or indirectly to any other
than the judge or to others entitled under this
article to receive reports, unless and until other-
wise ordered by a judge of the court or the direc-
tor of probation. (1937, c. 132, s. 11.)
§ 4665(12). Payment of salaries and expenses. —
All salaries and expenses necessary for carrying
out the provisions of this article shall be fixed in
accordance with the Executive Budget Act and
the Personnel Act, and shall be paid by the state
highway and public works commission out of the
state highway funds, under direction of the di-
rector of the budget. (1937, c. 132, s. 12.)
§ 4665(13). Accommodations for probation of-
ficers.— The county commissioners in each county
in which a probation officer serves shall provide,
in or near the courthouse, suitable office space for
such officer. (1937, c. 132, s. 13.)
CHAPTER 84
AGRICULTURE
Art. 1. Department of Agriculture
Part 1. Board of Agriculture
§ 4667. Department of agriculture, immigration,
and statistics established; board of agriculture,
membership, terms of office, etc. — The depart-
ment of agriculture, immigration, and statistics is
created and established and shall be under the
control of the commissioner of agriculture, with
the consent and advice of a board to be styled
"The Board of Agriculture." The board of agri-
culture shall consist of the commissioner of agri-
culture, who shall be ex officio a member and
chairman thereof and shall preside at all meetings,
and of ten other members from the state at large,
so distributed as to reasonably represent the dif-
ferent sections and agriculture of the state. In
the appointment of the members of the board the
governor shall also take into consideration the
different agricultural interests of the state, and
shall appoint one member who shall be a practical
tobacco farmer to represent the tobacco farming
interest, one who shall be a practical cotton
grower to represent the cotton interest, one who
shall be a practical truck farmer or general farmer
to represent the truck and general farming inter-
est, one who shall be a practical dairy farmer to
represent the dairy and livestock interest of the
state, one who shall be a practical poultry man to
represent the poultry interest of the state, one
who shall be a practical peanut grower to repre-
sent the peanut interest, one who shall be a man
experienced in marketing to represent the market-
ing of products of the state. The members of
such board shall be appointed by the governor,
1]
§ 4677(a)
AGRICULTURE
§ 4689(4)
by and with the consent of the senate, when the
terms of the incumbents respectively expire. The
term of office of such members shall be six years
and until their successors are duly appointed and
qualified. The terms of office of the five members
constituting the present board of agriculture shall
continue for the time for which they were ap-
pointed. In making appointments for the enlarged
board of agriculture, the governor shall make the
appointments so that the term of three members
will be for two years, three for four and four for
six years. Thereafter the appointments shall be
made for six years. Vacancies in such board
shall be filled by the governor for the unexpired
term. The commissioner of agriculture and the
members of the board of agriculture shall be prac-
tical farmers engaged in their profession. (1937,
c. 174.)
Editor's Note.— The 1937 amendment struck out the for-
mer section and inserted the above in lieu thereof.
Part 2. Commissioner of Agriculture
§ 4677(a). To establish regulations for trans-
portation of livestock. — The commissioner of agri-
culture, by and with the consent and advice of
the board of agriculture, shall promulgate and en-
force such rules and regulations as may be nec-
essary for the proper transporting of livestock by
motor vehicle, and may require a permit for such
vehicleb if it becomes necessary in order to pre-
vent the spread of animal diseases. This section
shall not apply to any county having a local law
providing for the vaccination of hogs against chol-
era. (1937, c. 427, ss. 1, 2.)
Part 4. Powers and Duties of Department
and Board
§ 4688(a): Repealed by Public Laws 1937, c.
131.
Art. 1A. North Carolina Fertilizer Law of 1933
§ 4689(3). Definitions.—
(i) The term "grade" means the minimum per-
centages of total nitrogen (N); phosphoric acid
(P2O5) in available form (comprising the water
and citrate soluble phosphoric acid) except as
provided for in paragraph (e) of section 4689(4);
and potash (K2O) available in water. These are
to be stated in this order and, when applied to
mixed fertilizers, in whole numbers only.
(1937, c. 430, s. 1.)
Editor's Note. — The 1937 amendment substituted the word
"available" for the word "soluble" formerly appearing in
the sixth line of item (i). The rest of the section, not be-
ing affected by the amendment, is not set out here.
§ 4689(4). Registration.— (a) It shall be unlaw-
ful for any person, acting for himself, or as agent,
to sell or offer for sale within the state any mixed
fertilizer or fertilizer material that has not been
registered as required by this section.
(b) Any person who may desire to sell or offer
for sale, either by himself or through another
person, mixed fertilizer or fertilizer material in
this state shall first file with the commissioner on
registration forms supplied by him a signed state-
ment, giving the name and address of the appli-
cant, and the following information with respect
to each brand, grade or analysis, in the following
order:
(1) Weight of each package in pounds.
(2) Brand name.
(3) Guaranteed analysis showing the minimum
percentages of plant food in the following order:
A — In mixed fertilizers:
Total nitrogen, per cent (whole numbers only) ;
water insoluble nitrogen, per cent; available phos-
phoric acid, per cent (whole numbers only) ; avail-
able potash, per cent (whole numbers only),
whether the fertilizer is acid-forming or non-acid-
forming. The potential basicity or acidity ex-
pressed as equivalent of calcium carbonate in mul-
tiples of five per cent (or one hundred pounds per
ton) only.
B — In mixed fertilizers branded for tobacco:
Total nitrogen, per cent (whole numbers only) ;
nitrogen in the form of nitrate, per cent; water
insoluble nitrogen, per cent; available phosphoric
acid, per cent (whole numbers only) ; available
potash, per cent (whole numbers only), and the
maximum percentage of chloride expressed as:
Chlorine, per cent.
Whether the fertilizer is acid-forming or non-
acid-forming. The potential basicity or acidity
expressed as equivalent of calcium carbonate in
multiples of five per cent (or one hundred pounds
per ton) only.
C — In fertilizer materials:
Total nitrogen, per cent; nitrogen in the form
of nitrate, per cent; available phosphoric acid, per
cent; available potash, per cent.
(4) The name and address of the person guar-
anteeing the registration.
(5) The sources from which such nitrogen,
phosphoric acid, and potash are derived.
(6) Whether or not the brand will be sold with
an open formula.
(c) The grade of any brand of mixed fertilizer
shall not be changed during the quinquennial pe-
riod for which registration is made, but the guar-
anteed analysis may be changed in other respects
and the sources of materials may be changed, pro-
vided prompt notification of such change is given
to the commissioner and the change is noted on
the container.
(d) The person offering for sale or selling any
brand of mixed fertilizer or fertilizer material
shall not be required to register the same if it has
already been registered under this article by a
person entitled to do so and such registration is
then outstanding.
(e) In the case of bone, tankage, and other or-
ganic materials in which the phosphoric acid con-
tent is not shown by laboratory methods to be
available but eventually becomes available in the
soil, the phosphoric acid may be guaranteed as to-
tal phosphoric acid. Unacidulated mineral phos-
phatic materials offered for sale shall be guaran-
teed as to both total and available phosphoric
acid. In the case of basic slag, either the total or
the available phosphoric acid shall be guaranteed.
If the term "available phosphoric acid" be used
in the statement of analyses, it shall mean the
sum of water soluble and citrate soluble phos-
phoric acid, except that when applied to basic
slag phosphates the term "available" shall mean
that part of the phosphoric acid found available
by the Wagner citric acid method as adopted by
the association of official agricultural chemists.
(f) In no case, except in the case of unacidu-
lated mineral phosphates, shall the term total
[132]
§ 4689(5)
AGRICULTURE
§ 4689(15)
phosphoric acid and available phosphoric acid be
used in the same statement of analysis.
(g) All manufacturers, dealers or agents ap-
plying for such registration under this section shall
pay to the commissioner of agriculture of the state
of North Carolina the sum of five dollars for
each separate registration registered with the said
commissioner; further, that the quinquennial reg-
istration of brands of fertilizers, or fertilizer ma-
terials, shall become effective December first, one
thousand nine hundred thirty-seven. It is further
provided herein that the full registration fee of
five dollars shall be levied on all brands of fer-
tilizer, or fertilizer materials, offered for registra-
tion between the effective date and the expiration
date of any quinquennial period. In no event shall
two or more brands of the same brand name with
different guaranteed analysis be included under a
single registration by the same manufacturer,
dealer or agent. (1933, c. 324, s. 4; 1937, c. 430,
s. 2.)
Editor's Note. — The 1937 amendment so changed this sec-
tion that a comparison here is not practical.
§ 4689(5). Marking.—
(1) If magnesium oxide (MgO) is claimed as
an ingredient the minimum percentage of total
magnesium oxide, and/or water soluble or avail-
able magnesium oxide shall be guaranteed in the
case of tobacco fertilizers. In the case of other
fertilizers the total magnesium oxide, if claimed,
shall be guaranteed in minimum per cent. The
guarantees of magnesium oxide shall be stated in
whole numbers only. This guarantee shall ap-
pear either on the bag or container or on a suit-
able tag attached thereto.
(m) The maximum sulphur may be claimed as
an ingredient of tobacco fertilizers and the mini-
mum calcium oxide (CaO) may be claimed in all
mixed fertilizers. If these claims are made they
shall be guaranteed. The guarantee shall appear
on the bag or container or on a suitable tag or la-
bel attached thereto and shall be stated in per
cent in whole numbers only.
(n) Additional plant food, elements, compounds,
or classes of compounds determinable by chemical
control methods, may be guaranteed by permis-
sion of the commissioner and board of agricul-
ture if approved by the director of the North Car-
olina experiment station: Provided, due public
notice of the proposed action shall have been
given. When any such additional plant food, ele-
ments, compounds, or classes of compounds are
included in the guarantee, they shall be subject to
inspection and analysis in accordance with the
methods and regulations that may be prescribed
by the commissioner. The commissioner shall
also fix penalties for failure to fulfill such guaran-
tees. (1933, c. 324, s. 5; 1937, c. 430, s. 3.)
Editor's Note. — The 1937 amendment added paragraphs (1),
(m) and (n). The rest of the section, not being affected
by the amendment, is not set out here.
§ 4689(11). Chemical analyses.—
(c) If the state chemist is required by law to
make analyses or determinations for any ingredi-
ents before the association of official agricultural
chemists shall have adopted an official, or tenta-
tive, method for such determination, then the state
chemist shall prescribe a method of analysis to be
used, and he shall send a copy of such method to
every manufacturer, whose brands are registered
in the state, at least six months before such pro-
visions of the law become effective. (1933, c. 324,
s. 11; 1937, c. 430, s. 4.)
Editor's Note. — The 1937 amendment added paragraph (c).
The rest of the section, not being affected by the amend-
ment, is not set out here.
§ 4689(12). Plant food deficiency.—
(c) Should the basicity or acidity as equivalent
of calcium carbonate of any sample of fertilizer be
found upon analysis to differ more than five per
cent (or one hundred pounds calcium carbonate
equivalent per ton) from the guarantee, then a
penalty of fifty cents per ton for each fifty pounds
calcium carbonate, or fraction thereof in excess of
the one hundred pounds allowed, shall be assessed
and paid as under paragraph (a) of this section.
(d) Should the total magnesium oxide (MgO)
content of any sample of fertilizer fall as much
as one whole per cent below the guaranteed mini-
mum, a penalty of fifty cents per ton for each ad-
ditional one-fourth of one whole per cent, or frac-
tion thereof, shall 'be assessed. Should the water
soluble or available magnesium oxide (MgO) con-
tent of any sample of fertilizer fall as much as
one-half whole per cent below the guaranteed
minimum, a penalty of fifty cents per ton for each
additional one-fourth of one whole per cent, or
fraction thereof, shall be assessed. These penal-
ties for total and water soluble or available mag-
nesium oxide shall not be cumulative, but only
the greater one shall be assessed and paid as un-
der paragraph (a) of this section.
(e) Should the calcium oxide (CaO) content of
any sample of fertilizer fall more than one whole
per cent below the guaranteed minimum, a penalty
of fifty cents per ton for each additional one-half
whole unit, or fraction thereof, shall be assessed
and paid as under paragraph (a) of this section.
(f) Should the sulphur content of any tobacco
fertilizer exceed by more than one whole per cent
the guaranteed maximum, a penalty of fifty cents
per ton for each additional one-half whole per
cent, or fraction thereof, shall be assessed and
paid as under paragraph (a) of this section.
(g) Should the water insoluble nitrogen content
of any sample of fertilizer fall more than twenty-
five per cent below the guaranteed minimum, a
penalty of twice the value of the deficiency shall
be assessed. If it should fall as much as fifty per
cent below the guaranteed minimum, a penalty of
five times the value of the deficiency shall be as-
sessed.
(h) Should the nitrate nitrogen content of any
sample of mixed fertilizer fall more than twenty-
five per cent below the guaranteed minimum, a
penalty of fifty cents per ton shall be assessed. If
it falls more than fifty per cent below the guaran-
teed minimum, a penalty of one dollar per ton
shall be assessed.
(i) All penalties assessed under this section
shall be paid to the purchaser or consumer of the
lot of fertilizer represented by the sample ana-
lyzed. (1933, c. 324, s. 12; 1937, c. 430, s. 5.)
Editor's Note. — The 1937 amendment added paragraphs (c)
to (i) inclusive. The rest of the section, not being affected
by the amendment, is not set out.
§ 4689(15). Minimum plant food content. — (a)
No super-phosphate, no fertilizer with a guarantee
of two plant food ingredients, or no complete
[133]
§ 4723(a)
AGRICULTURE
§ 4830
mixed fertilizer, shall be sold or offered for sale
for fertilizer purposes within this state which con-
tains less than fourteen per cent of plant food, ex-
cepting potash in combination with lime, which
shall contain not less than two per cent of avail-
able potash. This shall not apply to natural ani-
mal or vegetable products not mixed with other
materials.
(d) No mixed fertilizer containing nitrogen
shall guarantee less than two per cent of total ni-
trogen. No mixed fertilizer containing potash
shall guarantee less than two per cent of available
potash. (1933, c. 324, s. 15; 1937, c. 430, s. 6.)
Editor's Note. — The 1937 amendment made changes in par-
agraph (a) and added paragraph (d). The rest of the sec-
tion, not being affected by the amendment, is not set out.
Art. 4. Pulverized Limestone and Marl
§ 4723(a). Tonnage tax levied on sale of agri-
cultural lime and land plaster. — For the purpose
of defraying expenses connected with the inspec-
tion and analyses of agricultural lime and/or land
plaster, there shall be paid by each manufacturer,
dealer or agent, to the department of agriculture
a charge of five cents (5c) per ton on such agri-
cultural lime and/or land plaster sold or offered
for sale in the state, except that which is sold to
a fertilizer manufacturer for the sole purpose of
use in the manufacture of fertilizers, said charge
of five cents (5c) per ton to be collected by the
department of agriculture in the same manner as
the charge on fertilizers is now collected.
Each bag, parcel or shipment of agricultural
lime and/or land plaster shall have attached there-
to a tag, or label, to be furnished by the depart-
ment of agriculture, stating that all charges speci-
fied in this law have been paid, and the commis-
sioner, with the advice and consent of the board,
is hereby empowered to prescribe a form for such
tags or labels and to adopt such regulations as
will insure enforcement of this law. Whenever
any manufacturer, dealer or agent shall have paid
the required charges, his goods shall not be liable
to any further tax, whether by city, town, or
county. Tax tags or labels shall be issued each
year by the commissioner and sold to persons ap-
plying for same at the tax rate provided herein.
Tags or labels left in the possession of persons reg-
istering agricultural lime and/or land plaster at the
end of the calendar year may be exchanged for
tags or labels of the succeeding year.
If any manufacturer, dealer or agent, or other
seller of agricultural lime and/or land plaster, shall
desire to ship in bulk, either by rail or truck, the
said manufacturer, dealer or agent shall furnish an
invoice or bill of lading with sufficient tax certifi-
cates attached, in such form as may be prescribed
by the commissioner and board of agriculture, to
pay the tax on the amount of goods shipped.
It is required of each person registering agricul-
tural lime and/or land plaster under this law that
he furnish the commissioner with a written state-
ment of the tonnage of agricultural lime and/or
land plaster sold by him in this state. Said state-
ments shall include all sales for the periods of Jan-
uary first to and including June thirtieth, and of
July first to and including December thirty-first
of each year. These statements are to be made
within thirty days of the expiration date of each
of these periods. Shipments of agricultural lime
to fertilizer manufacturers in bulk to be used in
the manufacturer of fertilizer not to be included.
It shall be the duty of the commissioner, per-
sonally or by agents duly authorized in writing,
to make such inspection of agricultural lime and/
or land plaster in this state, to have such samples
taken, and to have such analyses made as in his
judgment may be necessary, whether or not per-
sons offering, selling, or distributing agricultural
lime and/or land plaster are complying with the
provisions of this law. The commissioner and
board of agriculture shall have power to prescribe
penalties for failure to meet guarantees; also for
failure to use inspection tags or labels. (1937, c.
367, ss. 1-5.)
Art. 8. Bottling Plants for Soft Drinks
§ 4780(3). Establishment and equipment kept
clean; containers sterilized. — The floors, walls,
ceilings, furniture, receptacles, implements, and
machinery of every establishment where soft
drinks are manufactured, bottled, stored, sold, or
distributed shall at all times be kept in a clean
sanitary condition; all vessels, receptacles, uten-
sils, tables, shelves, and machinery used in mov-
ing, handling, mixing, or processing must be thor-
oughly cleaned daily, all bottles and other con-
tainers used must be sterilized in caustic soda or
alkali solution in not less than three per cent
alkali or other solution of the equivalent steriliz-
ing effect as prescribed by the rules and regula-
tions adopted by the board of agriculture. (1935,
c. 372, s. 3; 1937, c. 232.)
Editor's Note. — The 1937 amendment inserted the words
"or other solution of the equivalent sterilizing effect."
Art. 121 Seed Inspection
§ 4823. Procurement and analysis of samples. —
Upon demand of the owner, his representative
or agent having the seed in charge, said sample
shall 'be thoroughly mixed and divided into two
samples of at least two ounces each and securely
sealed. One of said samples shall be left with or
on the premises of the vendor, or party in interest,
and the other retained by said commissioner, or
analyst, or agent, for analysis. (1917, c. 241, s.
13; 1929, c. 194, s. 13; 1935, c. 380, s. 5; 1937, c.
300, s. 1.)
Editor's Note.— The 1937 amendment, effective Jan. 1, 1938,
inserted at the beginning of the next to the last sen-
tence the following: "Upon demand of the owner, his rep-
resentative or agent having the seed in charge." The rest
of the section, not being affected by the amendment, is not
set out.
§ 4830. License tax for sale of seed. — For the
purpose of providing a fund to defray the expenses
of the examination and analysis prescribed in this
article, each person, firm, or corporation selling
or offering for sale in or export from this state
any seed as mentioned in this article shall register
with the department of agriculture the name of
the person, firm, or corporation offering the seed
for sale, and shall pay a license tax annually, on
January first of each year, of twenty-five dollars
($25.00) if a wholesaler or a wholesaler and re-
tailer, and ten dollars ($10.00) if only a retailer.
Each branch of any wholesaler or retailer shall be
required to pay the retail license tax. The com-
missioner's receipt for such money shall be license
[ 134
§ 4831
AGRICULTURE
§ 4870(s)
to conduct the business. Every parcel or package
of agricultural and vegetable seeds, as denned in
this article, delivered to any farmer of this state
for seeding purposes, and weighing ten (10)
pounds or more, sold by any person, firm, or cor-
poration whose business residence is either inside
or outside the state, shall have affixed thereto a
copy of the tag as designated in section 4812; said
tag to be purchased from the commissioner of
agriculture, and the purchaser of said tag to be
subject to the penalties outlined in section 4825 for
the use of the same tag a second time: Provided,
that tags of the previous year may be given in ex-
change for tags of the current year: Provided fur-
ther, that no farmer residing in North Carolina
shall be required to procure a state seed license to
sell seeds raised on his own farm. (1917, c. 241,
s. 17; 1921, c. 235, s. 4; 1929, c. 194, ss. 17, 18;
1937, c. 300, ss. 2, 3.)
Editor's Note.— The 1937 amendment reduced the retail-
er's tax, inserted the second sentence relating to tax of
branch, and added the second proviso.
§ 4831. Tolerance allowances for purity guaran-
tees, specified; tolerance scale for germination. — ■
The word "approximate" as used in this article
shall be interpreted as follows:
For purity guarantees the tolerance allowed
shall be two-tenths of one per cent, plus twenty
per cent of the lesser part of the sample. That is
to say, a sample is considered as being made up of
two parts, the pure seed (meaning the seed or
seeds named on the label), and the balance of the
sample (other agricultural seeds, weed seeds and
inert matter). For example, if a purity of ninety-
eight per cent (98%) is claimed, the sample may
test as low as ninety-seven and forty one-hun-
dredth per cent (97.40%) and not be deemed mis-
labeled; if a purity of eighty-two and twenty one-
hundredth per cent (82.20%) is claimed, the sam-
ple may test as low as seventy-eight and forty-four
one-hundredth per cent (78.44%) and not be
deemed mis-labeled.
For germination guarantees the following toler-
ance scale shall be allowed:
Guarantee (%) Allowable Variation (%)
90 or above 6
80 or above, but less than 90 7
70 or above, but less than 80 8
60 or above, but less than 70 9
Less than 60 10
(1921, c. 235, s. 5; 1929, c. 194, s. 19; 1931, c. 65;
1937, c. 300, s. 3.)
Editor's Note.— The 1937 amendment, effective Jan. 1, 1938,
so changed this section that a comparison here is not prac-
tical.
§ 4831(1). Seizure and condemnation author-
ized, upon violation. — When any section of this
article has been violated, the seed may be seized
and held until the article has been complied with.
If the article has not been complied with within
thirty (30) days, said seed may be condemned and
sold at public auction. Seizures may be made by
the commissioner of agriculture, his agents, or
any peace officer. (1937, c. 300, s. 4.)
Art. 14B. Liquid Fuels, Lubricating Oils,
Greases, etc.
§ 4870(h). Sale of fuels, etc., different from ad-
vertised name prohibited.
Applied in Maxwell v. Shell Eastern Petroleum Products,
90 F. (2d) 39.
Art. 14C. Gasoline and Oil Inspection
§ 4870(o). Title of article.— This article shall be
known as the Gasoline and Oil Inspection Act.
(1937, c. 425, s. 1.)
§ 4870(p). "Gasoline" defined. — The term "gas-
oline" wherever used in this article shall be con-
strued to mean a refined petroleum naphtha which
by its composition is suitable for use as a carbu-
rant in internal combustion engines. (1937, c.
425, s. 2.)
§ 4870(q). "Motor fuel" defined.— "Motor fuel"
shall be construed to mean all products commonly
or commercially known or sold as gasoline,
including casing-head or absorption or natural gas-
oline, benzol, or naphtha, regardless of their classi-
fication or uses, and any liquid prepared, adver-
tised, offered for sale or sold for use as or com-
monly and commercially used as a fuel in internal
combustion engines which, when subjected to dis-
tillation in accordance to the standard method of
test for distillation of gasoline, naphtha, kerosene,
and similar petroleum products (American Society
of Testing Materials, Designation D-86), show not
less than ten per centum recovered below three
hundred forty-seven degrees Fahrenheit and not
less than ninety-five per centum recovered below
four hundred sixty-four degrees Fahrenheit. In
addition to the above, any other volatile and in-
flammable liquid when sold or used to propel a
motor vehicle on the highways shall be motor fuel.
(1937, c. 425, s. 3.)
§ 4870 (r). Inspection of kerosene, gasoline and
other petroleum products provided for. — All kero-
sene used for illuminating or heating purposes and
all gasoline used or intended to be used for gen-
erating power in internal combustion engines or
otherwise sold or offered for sale, and all kero-
sene, benzine, naphtha, petroleum solvents, distil-
lates, gas oil, furnace or fuel oil and all other vola-
tile and inflammable liquids by whatever name
known or sold and produced, manufactured, re-
fined, prepared, distilled, compounded or blended
for the purpose of generating power in motor ve-
hicles for the propulsion thereof by means of in-
ternal combustion engines or which are sold or
used for such purposes, and any and all substances
or liquids which in themselves or by reasonable
combination with others might be used for or as
substitutes for motor fuel shall be subject to in-
spection, to the end that the public may be pro-
tected in the quality of petroleum products it buys,
that the state's revenue may be protected, and that
frauds, substitutions, adulterations and other rep-
rehensible practices may be prevented. (1937, c.
425, s. 4.)
§ 4870(s). Inspection fee; allotments for admin-
istration expenses. — For the purpose of defraying
the expenses of enforcing the provisions of this
article there shall be paid to the commissioner of
revenue a charge of one-fourth of one cent per
gallon upon all kerosene, gasoline, and other prod-
ucts of petroleum used as motor fuel, which pay-
ment shall be made in the manner prescribed by
law. There shall, from time to time, be allotted
by the budget bureau, from the inspection fees
collected under authority of the inspection laws of
this state, such sums as may be necessary to ad-
[135]
§ 4870(t)
AGRICULTURE
§ 4870(bb)
minister and effectively enforce the provisions of
the inspection laws. (1937, c. 425, s. 5.)
§ 4870 (t). Supervision of motor vehicle bureau;
payment into state treasury; "gasoline and oil in-
spection fund". — Gasoline and oil inspection shall
be one organization in activities accounting and
reporting under the motor vehicle bureau of the
department of revenue. All moneys received un-
der the authority of the inspection laws of this
state shall be paid into the state treasury and kept
as a distinct fund, to be styled "The Gasoline and
Oil Inspection Fund," and the amount remaining
in such fund at June thirtieth and December
thirty-first of each year shall be turned over to
the general fund by the state treasurer. (1937,
c. 425, s. 6.)
§ 4870 (u). Report of operation and expenses to
general assembly. — The commissioner of revenue
shall include in his report to the general assembly
an account of the operation and expenses under
this article. (1937, c. 425, s. 7.)
§ 4870 (v). Inspectors, clerks and assistants. —
The commissioner of revenue shall appoint and
employ such number of gasoline and oil inspec-
tors, clerks and assistants as may be necessary to
administer and effectively enforce all the provi-
sions of the inspection laws. All inspectors shall
be bonded in the sum of one thousand dollars in
the usual manner provided for the bonding of
state employees, and the expense of such bonding
shall be paid from the gasoline and oil inspection
fund created by this article. Each inspector, be-
fore entering upon his duties, shall take an oath
of office before some person authorized to admin-
ister oaths. Any inspector who, while in office,
shall be interested directly or indirectly in the
manufacture or vending of any illuminating oils
or gasoline or other motor fuels shall be guilty of
a misdemeanor, and upon conviction shall be fined
not less than three hundred dollars, or be impris-
oned for not less than three months nor more than
twelve months, or both such fine and imprison-
ment, in the discretion of the court. (1937, c. 425,
s. 8.)
§ 4870(w). Gasoline and oil inspection board
created. — In order to more fully carry out the pro-
visions of this article there is hereby created a
gasoline and oil inspection board of five members,
to be composed of the commissioner of revenue,
the director of the gasoline and oil inspection di-
vision, and three members to be appointed by the
governor, who shall serve at his will. The com-
missioner of revenue and the director of the gaso-
line and oil inspection division shall serve without
additional compensation. Other members of the
board shall each receive the sum of ten dollars for
each day he attends a session of the board and for
each day necessarily spent in traveling to and from
his place of residence, and he shall receive five
cents a mile for the distance to and from Raleigh
by the usual direct route for each meeting of the
board which he attends. These expenses shall be
paid from the gasoline and oil inspection fund cre-
ated by this article. It shall be the duty of the
gasoline and oil inspection board, after public no-
tice and provision for the hearing of all interested
parties, to adopt standards for the various grades
of gasoline based upon scientific tests and ratings
and for each of the articles for which inspection
is provided, to prescribe the form of the label for
the various grades of gasoline, and to pass all rules
and regulations necessary for enforcing the pro-
visions of the laws relating to the transportation
and inspection of petroleum products. After the
adoption and publication of said standards it shall
be unlawful to sell or offer for sale or exchange
or use in this state any products which do not
comply with the standards so adopted. The said
gasoline and oil inspection board shall, from time
to time after a public hearing, have the right to
amend, alter, or change said standards. Three
members of said board shall constitute a quorum.
(1937, c. 425, s. 9.)
§ 487G(x). Adoption of standards based on
scientific tests. — The gasoline and oil inspection
board shall have the power to adopt standards for
the various grades of gasoline based upon scien-
tific tests and ratings. (1937, c. 425, s. 10.)
§ 4870(y). Display of grade rating on pumps,
etc.; sales from pumps or devices not labeled; sale
of gasoline not meeting standard indicated on la-
bel.— At all times there shall be firmly attached to
or painted on each dispensing pump or other dis-
pensing device used in the retailing of gasoline a
label stating that the gasoline contained therein is
North Carolina grade. It shall be the
duty of the gasoline and oil inspection board to
prescribe the form of said label. Any person, firm,
'co-partnership, partnership, or corporation who
shall offer or expose for sale gasoline from any
dispensing pump or other dispensing device which
has not been labeled as required by this section,
and/or offer and expose for sale any gasoline
which does not meet the required standard for the
grade indicated on the label attached to the dis-
pensing pump or other dispensing device, shall be
guilty of a misdemeanor, and upon conviction shall
be fined not more than five hundred dollars and
be imprisoned for not more than six months, or
by either or both in the discretion of the court,
and the gasoline offered or exposed for sale shall
be confiscated. (1937, c. 425, s. 11.)
§ 4870(z). Regulations for sale of substitutes. —
All materials, fluids, or substances offered or ex-
posed for sale, purporting to be substitutes for or
motor fuel improvers, shall, before being sold, ex-
posed or offered for sale, be submitted to the com-
missioner of revenue for examination and inspec-
tion, and shall only be sold or offered for sale when
properly labeled with a label, the form and con-
tents of which label has been approved by the said
commissioner of revenue in writing. (1937, c.
425, s. 12.)
§ 4870(aa). Rules and regulations of board
available to interested parties. — It shall be the duty
of the commissioner of revenue to make available
for all interested parties the rules and regulations
adopted by the gasoline and oil inspection board
for the purpose of carrying into effect the laws
relating to the inspection and transportation of pe-
troleum products. (1937, c. 425, s. 13.)
§ 4870(bb). Establishment of laboratory for
analysis of inspected products. — The commissioner
of revenue is authorized to provide for the analy-
[136]
§ 4870(cc)
AGRICULTURE
§ 4870(ff)
sis of samples of inspected articles by establishing
a laboratory under the gasoline and oil inspection
division of the motor vehicle bureau for the analy-
sis of inspected products. (1937, c. 425, s. 14.)
§ 4870 (cc). Payment for samples taken for in-
spection.— The gasoline and oil inspectors shall
pay at the regular market price, at the time the
sample is taken, for each sample obtained for in-
spection purposes when request for payment is
made: Provided, however, that no payment shall
be made any retailer or distributor unless said re-
tailer or distributor or his agent shall sign a re-
ceipt furnished by the commissioner of revenue
showing that payment has been made as re-
quested. (1937, c. 425, s. 15.)
§ 4870(dd). Powers and authority of inspectors.
— The gasoline and oil inspectors shall have the
right of access to the premises and records of any
place where petroleum products are stored for the
purpose of examination, inspection, and/or draw-
ing of samples, and that said inspectors are hereby
vested with the authority and powers of peace and
police officers in the enforcement of motor fuel
tax and inspection laws throughout the state, in-
cluding the authority to arrest, with or without
warrants, and take offenders before the several
courts of the state for prosecution or other pro-
ceedings, and seize or hold or deliver to the sher-
iff of the proper county all motor or other vehicles
and all containers used in transporting motor fuels
and/or other liquid petroleum products in viola-
tion of or without complying with the provisions
of this article or the rules, regulations or require-
ments of the commissioner of revenue and/or the
gasoline and oil inspection board and also all mo-
tor fuels contained therein. Said inspectors shall
have power and authority on the public highways
or any other place to stop and detain for inspec-
tion and investigation any vehicle containing any
motor fuel and/or other liquid petroleum products
in excess of one hundred gallons or commonly
used in the transportation of such fuels and the
driver or person in charge thereof, and to require
the production by such driver or person in charge
of all records, documents and papers required by
law to be carried and exhibited 'by persons in
charge of vehicles engaged in transporting such
fuels; and whenever said inspectors shall find or
see any person engaged in handling, selling, us-
ing, or transporting any fuels in violation of any
of the provisions of the motor fuel tax or inspec-
tion laws of this state, or whenever any such per-
son shall fail or refuse to exhibit to said inspectors,
upon demand therefor, any records, documents or
papers required by law to be kept subject to in-
spection or to be exhibited by such person, said
person shall be guilty of a misdemeanor, and it
shall be the duty of said inspectors to immediately
arrest such violator and take him before some
proper peace officer of the county in which the of-
fense was committed and institute proper prosecu-
tion. (1937, c. 425, s. 16.)
§ 4870 (ee). Investigation and inspection of
measuring equipment; devices calculated to falsify
measures. — The gasoline and oil inspectors shall
be required to investigate and inspect the equip-
ment for measuring gasoline, kerosene, lubricat-
ing oil, and other liquid petroleum products.
[13
Said inspectors shall be under the supervision of
the commissioner of revenue, and are hereby
vested with the same power and authority now
given by law to inspectors of weights and meas-
ures, in so far as the same may be necessary to
effectuate the provisions of this article. The
rules, regulations, specifications and tolerance lim-
its as promulgated by the national conference of
weights and measures, and recommended by the
United States bureau of standards, shall be ob-
served by said inspectors in so far as it applies
to the inspection of equipment used in measuring
gasoline, kerosene, lubricating oil and other pe-
troleum products. Inspectors of weights and
measures appointed and maintained by the various
counties and cities of the state shall have the
same power and authority given by this section
to inspectors under the supervision of the com-
mission of revenue. In all cases where it is found,
after inspection, that the measuring equipment
used in connection with the distribution of such
products is inaccurate, the inspector shall con-
demn and seize all incorrect devices which in his
best judgment are not susceptible of satisfactory
repair, but such as are incorrect, and in his best
judgment may be repaired, he shall mark or tag
as "condemned for repairs" in a manner pre-
scribed by the commissioner of revenue. After
notice in writing the owners or users of such
measuring devices which have been condemned
for repairs shall have the same repaired and cor-
rected within ten days, and the owners and/or
users thereof shall neither use nor dispose of said
measuring devices in any manner, but shall hold
the same at the disposal of the gasoline and oil
inspector. The inspector shall confiscate and de-
stroy all measuring devices which have been con-
demned for repairs and have not been repaired as
required by this article. The gasoline and oil in-
spectors shall officially seal all dispensing pumps
or other dispensing devices found to be accurate
on inspection, and if, upon inspection at a later
date, any pump is found to be inaccurate and the
seal broken, the same shall constitute prima
facie evidence of intent to defraud by giving in-
accurate measure, and the owner and/or user
thereof shall be guilty of a misdemeanor, and
upon conviction shall be fined not less than two
hundred dollars nor more than one thousand dol-
lars, or be imprisoned for not less than three
months or by both such fine and imprisonment
in the discretion of the court. Any person who
shall remove or break any seal placed upon said
measuring and/or dispensing devices by said in-
spectors until the provisions of this section have
been complied with shall be guilty of a misde-
meanor, and upon conviction shall be fined not
less than fifty dollars nor more than two hun-
dred dollars, or be imprisoned for not less than
thirty days nor more than ninety days, or by both
such fine and imprisonment in the discretion of
the court. Any person, firm, or corporation who
shall sell or have in his possession for the pur-
pose of selling or using any measuring device to
be used or calculated to be used to falsify any
measure shall be guilty of a misdemeanor, and
shall be fined or imprisoned in the discretion of
the court. (1937, c. 425, s. 17.)
§ 4870 (ff). Responsibility of retailers for qual-
ity of products. — The retail dealer shall be held
§ 4870(gg)
AGRICULTURE
§ 4870(mm)
responsible for the quality of the petroleum prod-
ucts he sells or offers for sale: Provided, how-
ever, that the retail dealer shall be released if the
results of analysis of a sealed sample taken in a
manner prescribed by the commissioner of reve-
nue at the time of delivery, and in the presence
of the distributor or his agent, shows that the
product delivered by the distributor was of in-
ferior quality. It shall be the duty of the distrib-
utor or his agent to assist in sampling the prod-
uct delivered. (1937, c. 425, s. 18.)
§ 4870(gg). Adulteration of products offered
for sale. — It shall be unlawful for any person,
firm, or corporation who has purchased gasoline
or other liquid motor fuel upon which a road tax
has been paid to in any wise adulterate the same
by the addition thereto of kerosene or any other
liquid substance and sell or offer for sale the
same. Any person violating the provisions of
this section shall be guilty of a misdemeanor, and
upon conviction shall be fined not less than two
hundred dollars nor more than one thousand dol-
lars or be imprisoned for not more than twelve
months or by both such fine and imprisonment
In the discretion of the court. (1937, c. 425, s.
19.)
§ 4870(hh). Certified copies of official tests
admissible in evidence. — A certified copy of the
official test of the analysis of any petroleum prod-
uct, under the seal of the commissioner of reve-
nue, shall be admissible as evidence of the fact
therein stated in any of the courts of this state
on the trial of any issue involving the qualities
of said product. (1937, c. 425, s. 20.)
§ 4870(ii). Retail dealers required to keep
copies of invoices and delivery tickets. — Every
person, firm, or corporation engaged in the retail
business of dispensing gasoline and/or other pe-
troleum products to the public shall keep on the
premises of said place of business, for a period of
one year, duplicate original copies of invoices or
delivery tickets of each delivery received, show-
ing the name and address of the party to whom
delivery is made, the date of delivery, the kind
and amount of each delivery received, and the
name and address of the distributor. Each de-
livery ticket or invoice shall be signed by the re-
tailer or his agent and the distributor or his agent.
Such records shall be subject to inspection at any
time by the gasoline and oil inspectors. (1937, c.
425, s. 21.)
§ 4870 (jj). Prosecution of offenders. — All
prosecutions for fines and penalties under the
provisions of this article shall be by indictment
in a court of competent jurisdiction in the county
in which the violation occurred. (1937, c. 425, s.
22.)
§ 4870 (kk). Violation a misdemeanor. — Unless
another penalty is provided in this article, any
person violating any of the provisions of this ar-
ticle or any of the rules and regulations of the
commissioner of revenue and/or the gasoline and
oil inspection board shall be guilty of a misde-
meanor, and upon conviction shall be fined not
more than one thousand dollars or be imprisoned
for not more than twelve months, or by both
such fine and imprisonment in the discretion of
the court. (1937, c. 425, s. 23.)
§ 4870(11). Persons engaged in transporting,
are subject to inspection laws. — The owner or op-
erator of any motor vehicle using the highways
of this state or the owner or operator of any boat
using the waters of this state transporting into,
out of or between points in this state any gaso-
line or liquid motor fuel taxable in this state
and/or any liquid petroleum product that is or
may hereafter be made subject to inspection laws
of this state shall make application to the com-
missioner of revenue on forms to be provided by
him for a liquid fuel carrier's permit. Upon re-
ceipt of said application, together with a signed
agreement to comply with the provisions of the
act and/or acts relating to the transportation of
petroleum products subject to the motor fuel tax
and/or inspection laws, the commissioner of reve-
nue shall, without any charge therefor, issue a
numbered liquid fuel carrier's permit to the owner
or operator of each motor vehicle or boat intended
to be used in such transportation. Said numbered
liquid fuel carrier's permit shall show the motor
number and license number of the motor vehicle
and number or name of boat, and shall be promi-
nently displayed on the motor vehicle or boat at
all times. No person shall haul, transport, or con-
vey any motor fuel over any of the public high-
ways of this state except in vehicles plainly and
visibly marked on the rear thereof with the word
"Gasoline" in plain letters of not less than six
inches high and of corresponding appropriate
width, together with the name and address of the
owner of the vehicle in letters of not less than
four inches high: Provided, however, that this
section shall not be construed to include the
carrying of motor fuels in the supply tank of ve-
hicles which is regularly connected with the car-
buretor of the engine of the vehicle except when
said fuel supply tank shall have a capacity of
more than one hundred gallons. Any person vio-
lating any of the provisions of this section shall
be guilty of a misdemeanor and upon conviction
shall be fined not more than twenty-five dollars.
(1937, c. 425, s. 24.)
§ 4870(mm). Persons engaged in transporting
required to have in possession an invoice, bill of
sale or bill of lading. — Every person hauling,
transporting or conveying into, out of, or between
points in this state any motor fuel and/or any
liquid petroleum product that is or may hereafter
be made subject to the inspection laws of this
state over either the public highways or water-
ways of this state, shall, during the entire time
he is so engaged, have in his possession an in-
voice, or bill of sale, or bill of lading showing the
true name and address of the person from whom
he has received the motor fuel and/or other liq-
uid petroleum products, the kind, and the num-
ber of gallons so originally received by him, and
the true name and address of every person to
whom he has made deliveries of said motor fuel
and/or other liquid petroleum products or any
part thereof and the number of gallons so deliv-
ered to each said person. Such person engaged
in transporting said motor fuels and/or other pe-
troleum products shall, at the request of any
agent of the commissioner of revenue, exhibit for
inspection such papers or documents immediately,
and if said person fails to produce said papers or
documents or if, when produced, it fails to clearly
[138]
§ 4870(nn)
AGRICULTURE
§ 4895(27)
disclose said information, the agent of the com-
missioner of revenue shall hold for investigation
the vehicle and contents thereof. If investigation
shows that said motor fuels and/or other petro-
leum products are being transported in violation
of or without compliance with the motor fuel tax
and/or inspection laws of this state such fuels
and/or other petroleum products and the vehicle
used in the transportation thereof are hereby de-
clared common nuisances and contraband, and
shall be seized and sold and the proceeds shall go
to the common school fund of the state: Pro-
vided, however, that this article shall not be con-
strued to include the carrying of motor fuel in the
supply tank of vehicles which is regularly con-
nected with the carburetor of the engine of the
vehicle, except when said fuel supply tank shall
have a capacity of more than one hundred gal-
lons: Provided, this section shall not apply to
franchise carriers. (1937, c. 425. s. 25.)
§ 4870 (nn). Display required on containers used
in making deliveries. — Every person delivering at
wholesale or retail any gasoline in this state shall
deliver the same to the purchaser only in tanks,
barrels, casks, cans, or other containers having
the word "Gasoline" or the name of such other
like products of petroleum, as the case may be,
in English, plainly stenciled or labeled in colors
to meet the requirements of the regulations
adopted by the commissioner of revenue and/or
the gasoline and oil inspection board. Such deal-
ers shall not deliver kerosene oil in any barrel,
cask, can, or other container which has not been
stenciled or labeled as hereinbefore provided.
Every person purchasing gasoline for use or sale
shall procure and keep the same only in tanks,
barrels, casks, cans, or other containers stenciled
or labeled as hereinbefore provided: Provided,
that nothing in this section shall prohibit the de-
livery of gasoline by hose or pipe from a tank di-
rectly into the tank of any automobile or any
other motor vehicle: Provided further, that in
case gasoline or other inflammable liquids is sold
in bottles, cans, or packages of not more than
one gallon for cleaning and other similar pur-
poses, the label shall also bear the words "Un-
safe when exposed to heat or fire": Provided
further, that this section shall not apply to
franchise carriers. (1937, c. 425, s. 26.)
§ 4870(oo). Registration of exclusive industrial
users of naphthas and coal tar solvents. — All per-
sons who are exclusive industrial users of naphtha
and coal tar solvents, and who are not engaged
in the business of selling motor fuel, may register
with the commissioner of revenue as an exclusive
industrial user of naphthas and coal tar solvents
upon the presentation of satisfactory evidence of
such fact to said commissioner and the filing of
a surety bond in approved form not to exceed the
sum of one thousand dollars. Such registration,
properly evidenced by the issuance of a certificate
of registration as an exclusive industrial user of
naphthas and coal tar solvents, will thereafter,
and until such time as certificate of registration
may be canceled by the commissioner of revenue,
permit licensed distributors of motor fuel in this
state to sell naphthas and coal tar solvents to the
holder of such certificate of registration upon the
proper execution of an official certificate of in-
[ 139
dustrial use in lieu of the collection of the motor
fuel tax: Provided, however, that no licensed dis-
tributor of motor fuel shall sell gasoline tax free
under the conditions of this article: Provided
further, that the rules and regulations adopted by
the commissioner of revenue for the proper ad-
ministration and enforcement of this article shall
be strictly adhered to by the holder of the certifi-
cate of registration under penalty of cancellation
of such certificate for violation of or non-observ-
ance of such rules. (1937, c. 425, s. 27.)
§ 4870 (pp). Certain laws adopted as part of
article. — Chapter one hundred seventy-four, Pub-
lic Laws of one thousand nine hundred twenty-
seven [§§ 4870(a)-4870(e)], and chapter one hun-
dred eight, Public Laws of one thousand nine
hundred thirty-three [§§ 4870 (g) -4870 (n)], are
hereby made a part of this article. (1937, c. 425,
s. 28.)
§ 4870 (qq). Charges for analysis of samples. —
The commissioner of revenue is hereby authorized
to fix and collect such charges as he may deem
adequate and reasonable for any analysis made
by the gasoline and oil inspection division of any
sample submitted by any person, firm, association
or corporation other than samples submitted by
the gasoline and oil inspectors in the performance
of the duties required of said inspectors under
this article: Provided, however, that no charge
shall be made for the analysis of any sample sub-
mitted by any municipal, county, state or federal
official when the results of such analyses are nec-
essary for the performance of his official duties.
All moneys collected for such analyses shall be
paid into the state treasury to the credit of the
gasoline and oil inspection fund. (1937, c. 425, s.
29.)
§ 4870 (rr). Inspection of fuels used by state. —
The gasoline and oil inspection division is hereby
authorized, upon request of the proper state au-
thority, to inspect, analyze, and report the result
of such analysis of all fuels purchased by the state
of North Carolina for the use of all departments
and institutions. (1937, c. 153.)
Art. 15. Animal Diseases
Part 7. Rabies
§ 4895(3). Appointment of rabies inspectors;
preference to veterinarians.
Editor's Note.— By Public Laws 1937, c. 255, the board of
county commissioners of Davie county was authorized and
directed to appoint one rabies inspector for said county in-
stead of one for each township as provided in this section.
Part 8. Bang's Disease
§ 4895(26). Animals affected with, or exposed
to Bang's disease, declared subject to quarantine,
etc. — It is hereby declared that the disease of ani-
mals known as Bang's disease, contagious abor-
tion, abortion disease, bovine infectious abortion,
or Bang's bacillus disease, is of a contagious and
infectious character, and animals affected with, or
exposed to, or suspected of being carriers of said
disease shall be subject to quarantine and the
rules and regulations of the department of agri-
culture. (1937, c. 175, s. 1.)
§ 4895(27). "Bang's disease" defined; co-opera-
tion with federal department of agriculture. —
Bang's disease shall mean the disease wherein an
§ 4895(28)
AGRICULTURE
§ 4930(1)
animal is infected with the Bang bacillus, irre-
spective of the occurrence or absence of an abor-
tion. An animal shall be declared infected with
Bang's disease if it reacts to a seriological test,
or if the Bang bacillus has been found in the
body or its secretions or discharge, or if it has
been treated with a live culture of the Bang ba-
cillus. The control and eradication of Bang's
disease in the herds of the state shall be conducted
as far as the funds of the department of agricul-
ture will permit, and in accordance with the rules
and regulations made by the said department.
Said department of agriculture is hereby author-
ized to co-operate with the United States depart-
ment of agriculture in the control and eradication
of Bang's disease. (1937, c. 175, s. 2.)
§ 4895(28). Blood samples; diseased animals to
be branded and quarantined; sale, etc. — All blood
samples for a Bang's disease test shall be drawn
by a qualified veterinarian whose duty it shall be
to brand all animals affected with Bang's disease
with the letter "B" on the left hip or jaw, not less
than three or more than four inches high, and to
tag such animals with an approved cattle ear tag
and to report same to the state veterinarian. Cat-
tle affected with Bang's disease shall be quaran-
tined on the owner's premises. No animal affected
with Bang's disease shall be sold, traded or other-
wise disposed of except for immediate slaughter,
and it shall be the duty of the person disposing of
such infected animals to see that they are promptly
slaughtered and a written report of same is made
to the state veterinarian. (1937, c. 175, s. 3.)
§ 4895(29). Civil liability of vendors. — Any per-
son or persons who knowingly sells or otherwise
disposes of, to another, an animal affected with
Bang's disease shall be liable in a civil action to
any person injured, and for any and all damages
resulting therefrom. (1937, c. 175, s. 4.)
§ 4895(30). Sales by non-residents. — When
cattle are sold, or otherwise disposed of, in this
state, by a non-resident of this state, the person
or persons on whose premises the cattle are sold,
or otherwise disposed of, with his knowledge and
consent, shall be equally responsible for violations
of this law and the regulations of the department
of agriculture. (1937, c. 175, s. 5.)
§ 4895(31). Duties of state veterinarian; quar-
antine for failure to comply with recommenda-
tions.— When the state veterinarian receives in-
formation, or has reason to believe that Bang's
disease exists in any animal or animals, he shall
promptly notify the owner or owners, and recom-
mend that a test be applied to said animals, that
diseased animals shall be properly disposed of,
and the premises disinfected under the supervi-
sion of the state veterinarian or his authorized
representative. Should the owner or owners fail
or refuse to comply with the said recommenda-
tions of the state veterinarian within ten days
after said notice, then the state veterinarian shall
quarantine said animals on the premises of the
owner or owners. Said animals shall not be re-
moved from the premises where quarantined.
Said quarantine shall remain in effect until the
said recommendations of the state veterinarian
have been complied with and the quarantine is
canceled by the state veterinarian. (1937, c. 175,
s. 6.)
§ 4895(32). Co-operation of county boards of
commissioners. — The several boards of county
commissioners in the state are hereby expressly
authorized and empowered within their discretion
to make such appropriations from the general
funds of their county as will enable them to co-
operate effectively with the state and federal de-
partments of agriculture in the eradication of
Bang's disease in their respective counties. (1937,
c. 175, s. 7.)
§ 4895(33). Compulsory testing. — Whenever a
county board shall co-operate with the state and
federal governments, as provided for in this law,
the testing of all cattle in said county shall be-
come compulsory, and it shall be the duty of the
cattle owners to give such assistance as may be
necessary for the proper testing of said cattle,
and no cattle, except for immediate slaughter,
shall be brought into the county unless accom-
panied by a proper test chart and health certifi-
cate issued by a qualified veterinarian, showing
that the cattle have passed a proper test for Bang's
disease. (1937, c. 175, s. 8.)
§ 4895(34). "Qualified veterinarian" defined —
The words "qualified veterinarian" shall be con-
strued to mean a veterinarian approved by the
state veterinarian and chief of the United States
bureau of animal industry for the testing of cat-
tle intended for interstate shipment. (1937, c.
175, s. 9.)
§ 4895(35). Authority to promulgate and en-
force rules and regulations. — The commissioner
of agriculture, by and with the consent of the
state board of agriculture, shall have full power to
promulgate and enforce such rules and regulations
as may be necessary to carry out the provisions
of this law and for the effective control and eradi-
cation of Bang's disease. (1937, c. 175, s. 10.)
§ 4895(36). Violation made misdemeanor. — Any
person or persons who shall violate any provi-
sion set forth in this law, or any rule or regula-
tion duly established by the state board of agri-
culture, or any officer or inspector who shall wil-
fully fail to comply with any provisions of this
law, shall be guilty of a misdemeanor. (1937, c.
175, s. 11.)
§ 4895(37). Punishment for sales of animals
known to be infected. — Any person or persons
who shall wilfully and knowingly sell or other-
wise dispose of any animal or animals known to
be affected with Bang's disease, except as pro-
vided for in this law, shall be guilty of a misde-
meanor, and punishable by a fine of not less than
fifty dollars and not more than two hundred dol-
lars, or imprisoned for a term of not less than
thirty days or more than two years. (1937, c.
175, s. 12.)
Art. 19A. Production, Sale, Marketing and
Distribution of Tobacco
§ 4930(1). Definitions. — As used in this article,
unless otherwise stated or unless the context or
subject matter clearly indicates otherwise:
"Person" means any individual, partnership,
firm, joint-stock company, corporation, associa-
[140]
§ 4930(2)
AGRICULTURE
§ 4930(3)
tion, trust, estate, or any agency of the state or
federal government.
"Similar act" means an act of another state con-
taining provisions substantially the same as this
article, except that the omission of provisions re-
quiring the establishment of acreage quotas for
individual farms shall not be deemed a substantial
variation from this article.
"Kind of tobacco" means one or more types of
tobacco as classified in the service and regulatory
announcement number one hundred and eighteen
of the bureau of agricultural economics of the
United States department of agriculture as listed
below, according to the name or names by which
known:
Types eleven, twelve, thirteen and fourteen,
known as flue-cured tobacco.
Type thirty-one, known as burley tobacco.
"Crop year" means the period from May first
of one year to April thirtieth of the succeeding
year, both dates inclusive.
"Surplus tobacco" means the quantity of to-
bacco marketed from the crop produced on a
farm in any crop year in excess of the marketing
quota for such farm for such year.
"Buyer or handler" means any person who buys
tobacco from the producer thereof, or who sells
tobacco for the producer thereof, and pays the
producer for such tobacco, or who redries or oth-
erwise processes tobacco for the producer there-
of prior to the sale of such tobacco by the pro-
ducer, or any producer who markets tobacco pro-
duced by him directly to the consumer.
"Dealer" means any person who buys and re-
sells tobacco prior to the redrying, conditioning,
or processing thereof.
"Producer" means any person who has the
right during any year to sell, or to receive a share
of the proceeds derived from the sale of, tobacco
produced by him or on land owned or leased by
him.
"Operator" means any person who, as owner-
operator, or as cash rent, standing rent, or share
rent tenant, operates a farm (i. e., a tract or tracts
of land operated as a unit with the same machin-
ery and other equipment) on which tobacco is
produced, and includes a share-cropper who oper-
ates a farm if the owner-operator or tenant does
not provide for the obtaining of marketing cer-
tificates with respect to the tobacco crop of the
farm. (1937, c. 22, s. 1.)
Editor's Note.— This article, known as the Tobacco Com-
pact Act, depended upon similar action in other tobacco-
producing states, which failed to materialize, and conse-
quently is of no avail until other tobacco-producing states
co-operate. 15 N. C. Iyaw Rev., No. 4, p. 323.
§ 4930(2). North Carolina tobacco commission
created; members; county and district committee-
men; vacancies; compensation. — There is hereby
created a commission to be known as the North
Carolina tobacco commission (hereinafter re-
ferred to as the "commission"). The commission
shall consist of seven (7) members, and each of
the four (4) tobacco belts, viz: eastern belt, mid-
dle belt, old belt and border belt, shall have one
or more representatives selected as follows: When
this article becomes effective, the director of the
state argicultural extension service shall arrange
for a meeting of tobacco producers in each county
(any county in which there are less than one hun-
dred tobacco producers shall be grouped with an-
other adjoining county), at which three (3) to-
bacco producers shall be elected, by the produc-
ers attending the meeting, to serve as county
committeemen for one crop year. The director
of the state agricultural extension service shall
divide the state into six (6) districts and arrange
for a meeting of the county committeemen elected
in each district, at which meeting the county
committeemen in each district shall nominate
from among their number three (3) producers to
serve as district committeemen. From the three
(3) district committeemen nominated in each dis-
trict the governor shall appoint one producer to
serve for a period of one crop year as a member
of the commission. The director of the state ag-
ricultural extension service shall serve, or shall
appoint one member of his staff to serve, as a
member of the commission. Vacancies on the
commission during any crop year shall be filled
by the governor by the appointment of another
district committeeman for the remainder of such
year from the district in which the vacancy oc-
curs: Provided, that the director of the state ag-
ricultural extension service shall fill the vacancy
in the case of the member of the commission ap-
pointed by him. At the end of each crop year
the tobacco commission shall be selected for the
succeeding crop year in the manner provided
above. Each member of the commission not al-
ready in the employment of the state shall be paid
the sum of ten dollars ($10.00) for each day ac-
tually spent in the performance of his duties, and
shall be reimbursed for subsistence, not exceed-
ing five dollars ($5.00) per day, and for necessary
travel expenses. (1937, c. 22, s. 2.)
§ 4930(3). Compacts with governors of other
states. — The governor is authorized and directed
to negotiate and enter into a compact with re-
spect to each kind of tobacco with the governor
of each of the states producing such kind of to-
bacco: Provided, (1) that any compact shall not
become effective until it has been entered into by
the states of North Carolina, Virginia, South
Carolina and Georgia, and any compact with re-
spect to burley tobacco shall not become effective
until it has been entered into by the states of
North Carolina, Kentucky, Virginia and Tennes-
see; (2) that a compact with respect to any kind
of tobacco shall not become effective during any
crop year unless entered into prior to the first
day of such crop year, and (3) that any provi-
sions in such compact or compacts which relate
to the establishment of tobacco acreage quotas as
provided herein shall not become effective unless
and until the consent of the congress of the
United States shall be given to a compact or com-
pacts providing for the establishment of tobacco
acreage quotas. This article shall be enforced
with respect to any kind of tobacco upon the es-
tablishment of a compact with respect to such
kind of tobacco, and its enforcement with respect
to such kind of tobacco shall be suspended upon
the withdrawal from such compact by any state
required as a party thereto. If an injunction is-
sued by a court of competent jurisdiction against
the enforcement of a similar act of any state is
made permanent so as to stop the administration
of said act in such state during any crop year, the
enforcement of this article may be suspended by
the commission with respect to the kind of to-
[141]
§ 4930(4)
AGRICULTURE
§ 4930(5)
bacco covered by such compact until such time
as the compact is again made effective or the in-
junction dissolved, as the case may be. Upon the
filing with the commission of a petition or peti-
tions by fifteen per cent or more of the producers
of any kind of tobacco in this state requesting
that the enforcement of this article be suspended
with respect to such kind of tobacco, the com-
mission shall conduct a referendum within sixty
days after the receipt of such petition or peti-
tions to determine whether the producers of such
kind of tobacco in the state are in favor of the
enforcement of this article, and if the commission
finds that one-third or more of the producers who
vote in the referendum are not in favor of the en-
forcement of the article, such findings of the
commission shall be certified to the governor,
who shall proclaim the article inoperative for the
crop year next succeeding the crop year in which
the referendum is conducted. (1937, c. 22, s. 3.)
§ 4930(4). Cooperation with other states and
secretary of agriculture in making determinations.
— The commission shall meet and co-operate with
the tobacco commissions of other states that are
parties to a compact, and any persons designated
by the secretary of agriculture of the United
States to serve in an advisory capacity, for the
purposes of making certain determinations enu-
merated in this section, and when such determi-
nations are agreed upon by a majority of the
members of the commission for this state, and a
majority of the members of the commissions for
other states, such determinations shall be accepted
and followed in the administration of this article.
(a) Determine from statistics of the United
States department of agriculture a marketing
quota, which for any kind of tobacco shall be that
quantity of such kind of tobacco produced in the
United States which is estimated to be required
for world consumption during any crop year, in-
creased or decreased, as the case may be, by the
amount by which the world stocks of such kind
of tobacco at the beginning of such crop year are
less than or greater than the normal world stocks
of such kind of tobacco.
(b) Determine a tobacco marketing quota for
each state, for each kind of tobacco, for each crop
year for which this article is in effect with respect
to such kind of tobacco. The marketing quota
for each state for each kind of tobacco shall be
that percentage of the quantity determined under
sub-section (a) of this section which is equal to
the percentage that the total production of such
kind of tobacco in the state for the year or years
set forth below is of the total production of such
kind of tobacco in the United States for such year
or years:
Flue-cured tobacco, one thousand nine hundred
and thirty-five, and burley tobacco, one thousand
nine hundred and thirty-three, one thousand nine
hundred and thirty-four, and one thousand nine
hundred and thirty-five.
(c) Determine a base tobacco yield for each
state for each kind of tobacco. The base tobacco
yield for each kind of tobacco for each state shall
be the total production of such kind of tobacco in
such state in the year or years named in sub-sec-
tion (b) of this section, divided by the total har-
vested acreage of such kind of tobacco in such
state in such year or years.
(d) Determine and make such adjustments
from year to year in the percentage of the mar-
keting quota to be assigned to each state, or in
the base yield for each state, or both (as deter-
mined pursuant to sub-sections (b) and (c) of
this section and as adjusted in any preceding year
pursuant to this sub-section), not exceeding two
per cent (2%) decrease or five per cent (5%) in-
crease in any crop year of the percentage of the
said marketing quota assigned to each state, or
five per cent (5%) decrease or increase of the base
yield for each state in any crop year, as are de-
termined to be necessary to correct for any ab-
normal conditions of production during the year
or years specified in subsection (b) of this sec-
tion, and trends in production during or since
such year or years in any state as compared with
other states: Provided, that the percentages of
the marketing quota for any kind of tobacco for
all states producing such kind of tobacco, as ad-
justed pursuant to this sub-section, for any year
shall equal one hundred per cent (100%).
(e) Determine and make adjustments in the
marketing quota established pursuant to sub-sec-
tions (b) and (d) of this section for any kind of
tobacco for any crop year, not exceeding ten per
cent (10%) of said quota, from time to time dur-
ing that period from August first to December
fifteenth of such year if, upon the study of supply
and demand conditions for such kind of tobacco,,
the commission finds that such adjustments are
required to effectuate the purpose of this article
and of similar acts of other states: Provided, that
any such adjustment shall apply uniformly to all
states and only during the crop year in which
such adjustment is made.
(f) Determine regulations with respect to the
transfer of marketing certificates among produc-
ers of any kind of tobacco within the states which
are parties to a compact with respect to such kind
of tobacco, and such other regulations as may be
deemed appropriate to the uniform administration
and enforcement of this article and of similar acts
of other states. (1937, c. 22, s. 4.)
§ 4930(5). Tobacco acreage and marketing
quotas for each farm. — The commission shall es-
tablish tobacco acreage and tobacco marketing
quotas for each crop year for any farm on which
tobacco is grown, such quotas to be determined
as follows:
(a) For any farm for which a base tobacco
acreage and a base tobacco production have pre-
viously been determined by the agricultural ad-
justment administration of the United States de-
partment of agriculture, as shown by the avail-
able records and statistics of that department, the
base tobacco acreage and base tobacco production
so last determined shall constitute the tobacco
acreage and tobacco marketing quotas, subject to
such adjustments as are recommended by the
county committee of the county in which the
farm is located and approved by the commission
as being in conformity with the provisions of sub-
sections (c) and (d) of this section.
(b) For any farm for which a base tobacco
acreage and base tobacco production have not
been previously determined by the agricultural
adjustment administration of the United States
department of agriculture, the tobacco acreage
and tobacco marketing quotas shall be estab-
[142]
§ 4930(6)
AGRICULTURE
§ 4930(6)
lished in conformity with the provisions of sub-
sections (c) and (d) of this section: Provided,
that the total of the tobacco acreage and of the
tobacco marketing quotas established for such
farms in any crop year shall not exceed two per
cent (2%) of the total tobacco acreage and to-
bacco marketing quotas, respectively, established
pursuant to sub-section (a) of this section, plus
the tobacco acreage and the tobacco marketing
quotas established for farms in preceding years
pursuant to this sub-section.
(c) The tobacco acreage and the tobacco mar-
keting quotas established for each farm shall be
fair and reasonable as compared with the tobacco
acreage and the tobacco marketing quotas for
other farms which are similar with respect to the
following: The past production of tobacco on
the farm and by the operator thereof; the per-
centage of total cultivated land in tobacco and in
other cash crops; the land, labor, and equipment
available for the production of tobacco; the crop
rotation practices and the soil and other physical
factors affecting the production of tobacco. The
acreage quota for farms in a county shall not ex-
ceed such maximum percentage of the cultivated
acreage as shall be fixed by the county committee,
and the maximum so set by the county com-
mittee shall not exceed a percentage which will
insure the adjustment of the inequalities existing
in such county.
(d) The total of the tobacco acreage quotas for
any kind of tobacco established for all farms in
the state in any crop year shall not exceed a to-
bacco acreage quota for the state determined by
dividing the marketing quota for such kind of
tobacco for the state by the base tobacco yield
for such kind of tobacco for the state, determined
in accordance with sub-sections (c) and (d) of
section 4930(4).
The tobacco acreage and the tobacco marketing
quotas for any kind of tobacco established for
each farm in any crop year pursuant to sub-sec-
tions (a) and (b) of this section shall be adjusted
so that the aggregate of the tobacco acreage
quotas and the aggregate of the tobacco marketing
quotas for all farms in the state does not exceed
the tobacco acreage and the tobacco marketing
quotas, respectively, for such kind of tobacco es-
tablished for the state for such year; and the com-
mission shall prescribe such regulations with re-
spect to such adjustments as will tend to protect
the interests of small producers.
(e) If, after marketing quotas are established
for farms for any kind of tobacco in any crop year,
there is an adjustment, pursuant to sub-section
(e) of section 4930(4), in the marketing quota
for such kind of tobacco for the state for such
year, the marketing quotas for all farms in the
state shall be adjusted accordingly.
(f) If a base tobacco yield is not determined
by the several state commissions the commission
for this state shall determine a base yield for the
state in accordance with the procedure specified
in sub-sections (c) and (d) of section 4930(4).
(g) In each county there shall either be pub-
lished in one local newspaper the following infor-
mation for each township of the county: (1) the
name of each tobacco grower in that township;
(2) the number of his tobacco tenants; (3) his
[1
total cultivated acres; (4) his total tobacco acreage
and tobacco marketing quota; (5) the per cent of
his cultivated land represented by his tobacco
acreage quota, or else there shall be posted in at
least five public places in each township a report
for that township showing this information. One
copy of such information shall be filed in the office
of the clerk of the superior court in the county.
(h) No reduction shall be required in the flue-
cured tobacco acreage quota established for any
farm if such quota is three and two-tenth acres or
less: Provided, that if the operator of the farm re-
duces the acreage of tobacco grown on the farm in
any year below the acreage quota, a proportionate
reduction may be required in the marketing quota
for the farm.
(i) The terms of this article, relating to the
fixing of acreage or marketing quotas, shall not
apply to any grower of burley tobacco, with or
without an established acreage base, whose acreage
is two acres or less. (1937, c. 22, s. 5; c. 24, ss.
1-3.)
§ 4930(6). Notification of quotas established and
adjustments; marketing and resale certificates;
charge for surplus tobacco; administrative com-
mittees, agents and employees; hearings and in-
vestigations; collection of information; regula-
tions.— The commission is authorized and di-
rected:
(a) To notify as promptly as possible the oper-
ator of each farm, for which acreage and market-
ing quotas are established, of the amount of such
quotas for the farm and of any adjustment there-
of which may be made from time to time pursuant
to this article.
(b) Upon application therefor by the operator
of the farm, or by the person marketing the to-
bacco grown thereon, to issue to the buyer or
handler who purchases, or handles such tobacco,
marketing certificates for an amount of tobacco
not in excess of the marketing quota for the farm
(as adjusted pursuant to subsection (d) of sec-
tion 4930(5) ) on which such tobacco is produced,
or not in excess of the quantity of tobacco har-
vested from the crop produced on such farm,
whichever is smaller: Provided, that the com-
mission (in accordance with regulations pre-
scribed by the commission) may provide for the
issuance and transfer of marketing certificates
for an amount of tobacco equal to the amount by
which the said quantity marketed falls below the
said marketing quota for any farm; and Provided
further, that any regulations pertaining to such
issuance and transfer shall be uniform as to the
same kind of tobacco in all states entering into
a compact with respect to such kind of tobacco.
(c) Upon application therefor by any buyer or
handler to issue marketing certificates for surplus
tobacco produced on the farm upon payment of
a charge of twenty-five per cent (25%) of the
gross value, or of one and one-half cents (l^c)
per pound, whichever is larger, of the tobacco
covered by such certificates. The buyer or han-
dler, in settling with the grower, shall deduct
from the proceeds of sale of such surplus tobacco
or, if not sold, from any advance or loan thereon,
the amount of such charge, which charge shall be
deemed an assessment upon the producer for the
purposes of paying the costs, charges, and ex-
penditures provided for by this article.
43 1
§ 4930(7)
AGRICULTURE
§ 4930(9)
(d) Upon application therefor by any tobacco
dealer to issue, under such terms and conditions
as the commission shall by regulations prescribe,
resale certificates for such tobacco purchased by
any dealer during any day as such dealer speci-
fied will be resold prior to the redrying or proc-
essing thereof, where marketing certificates or re-
sale certificates have been issued for such tobacco
pursuant to the provisions of this article.
(e) To establish or provide for the establish-
ment of such committees of tobacco producers,
and to appoint such agents and employees as the
commission finds necessary for the administra-
tion of this article, and to fix the compensation
of the members of the county committees re-
ferred to in section 4930(2), and of such agents
and employees: Provided, that the rates of com-
pensation for such committeemen, agents and
employees shall be comparable with rates of com-
pensation to persons employed in similar capac-
ities in connection with the administration of the
agricultural conservation program, and acceptable
to the federal authority.
(f) To provide for the making of such investi-
gations and the holding of such hearings as the
commission finds necessary in connection with
the establishment of acreage and marketing
quotas for farms and to designate persons to con-
duct such investigations and hold such hearings
in accordance with regulations prescribed by the
commission.
(g) To provide for collection of such informa-
tion pertaining to the acreage of tobacco grown
for harvest on each farm as the commission may
consider necessary for the purpose of checking
such acreage with the acreage quota for the farm
and to prescribe any such regulations as may be
necessary in connection therewith.
(h) To prescribe such other regulations as the
commission finds necessary to the exercise of the
powers and the performance of the duties vested
in it by the provisions of this article. (1937, c.
22, s. 6.)
§ 4930(7). Board of adjustment and review for
each county. — The county committee of each
county shall be and it is hereby constituted the
board of adjustment and review for its county,
whose duty it shall be to adjust and distribute the
total base acreage and marketing quotas allocated
to the several farms in the county by the com-
mission so as to effectuate the provisions of this
article.
(a) The county board of adjustment and review
may designate a clerk for such board.
(b) The board of adjustment and review shall
meet on the first Monday in January of each and
every year, after giving ten days notice (by pub-
lication in a newspaper published in the county)
of the time, place and purpose of the meeting, and
may adjourn from day to day while engaged in
the adjustment and review of the acreage and
marketing quotas of the county, but shall com-
plete their duties on or before the first Monday
in February of each and every year: Provided,
however, that the commission shall designate the
time within which the said adjustment and review
shall be made for the year one thousand nine
hundred and thirty-seven.
(c) The board of adjustment and review, on
request, shall hear any and all producers, oper-
ators, and applicants in the county in respect to
their acreage or marketing quotas, or the quotas
of others; and after due notice to the person or
persons affected, shall allow, increase, or reduce
such acreage or marketing quotas as in their
opinion will make a fair and equitable allotment
within the meaning of this article; and shall cause
to be done whatever else may be necessary to
make the distribution of county acreage and mar-
keting quotas comply with the provisions of this
article; and after the completion of the adjust-
ment and review, a list showing the details there-
of shall be prepared, and a majority of the board
shall endorse thereon and sign the statement to
the effect that the same is the fixed list of quotas
for the current year, and said list, or a certified
copy thereof, shall be filed in the office of the
clerk of the superior court within three days after
the completion of the adjustment and review.
(d) Any producer, operator, or person claim-
ing or challenging an allotment quota may ex-
cept to the decision of the board of adjustment and
review and appeal therefrom to the commission
by filing in duplicate a written notice of such ap-
peal with the county committee within ten days
after the filing of the list of quotas in the office
of the clerk of the superior court. At the time
of filing such notice of appeal the appellant shall
file with the county committee a statement in
duplicate of the grounds of appeal; and within
three days after the filing thereof the county com-
mittee shall forward or cause to be forwarded to
the commission one copy each of the notice of
appeal and statement of grounds of appeal. The
commission shall, on or before the first Monday
in March thereafter, hear and determine such ap-
peal, after first giving due notice of the time and
place of such hearing to the appellant and to the
chairman of the county committee. At the hear-
ing the commission shall hear relevant and perti-
nent testimony or affidavits offered by the appel-
lant or county committee; and thereafter, by or-
der, shall modify or confirm the decision of the
county board of adjustment and review, and shall
deliver to the county committee a certified copy
of such order, which shall be binding upon all
parties concerned for the current year. (1937, c.
24, s. 4.)
§ 4930(8). Handling of funds and receiving
payments. — The commission is authorized:
(a) To accept, deposit with the state treasurer
and provide for the expenditure of such funds as
the congress of the United States may advance
or grant to the state for the purpose of adminis-
tering this article. Such expenditures shall be in
accordance with the act of congress authorizing
or making such advance or grant.
(b) To receive, through such agents as it may
designate, all payments covering the sale of mar-
keting certificates pursuant to sub-section (c) of
section 4930(6); to provide for the fixing of an
adequate bond for any person responsible for re-
ceiving and disbursing any funds of or adminis-
tered by the commission; and to provide for the
expenditure of such funds in the manner pre-
scribed in section 4930(10). (1937, c. 22, s. 7.)
§ 4930(9). "Tobacco commission account" de-
posited with state treasurer. — All receipts from
the sale of marketing certificates pursuant to sub-
[144]
§ 4930(10)
AGRICULTURE
§ 4930(17)
section (c) of section 4930(6) and all funds
granted or advanced to the state by the congress
of the United States for the purpose of adminis-
tering this article shall be deposited with the
state treasurer and shall be placed by him in a
special fund known as the "Tobacco Commission
Account," and the entire amount of such receipts
and funds hereby is appropriated out of such to-
bacco commission account and shall be available
to the commission until expended. (1937, c. 22,
s. 8.)
§ 4930(10). Purposes for which funds expended;
reserve necessary. — Funds of or administered by
the commission shall be expended, in accordance
with regulations prescribed by the commission,
for the following purposes: First, to repay to
the treasurer of the United States any funds ad-
vanced by the United States to the commission
for the purpose of administering this article:
Provided, the United States requires such repay-
ment. Second, to pay any expenses lawfully in-
curred in the administration of this article, in-
cluding expenses of any agency of the state in-
curred at the request of the commission. Third,
to make payment to tobacco producers whose
sales of tobacco, because of loss by fire or
weather, or diseases affecting their tobacco crops
adversely during any crop year, are less than the
marketing quotas for their farms for such year.
Such payments shall be at a rate per pound of
such deficit determined by dividing the funds
available for such payments by the total number
of pounds by which the sales of tobacco by all
producers fell below the marketing quotas for
their farms: Provided, that such deficit is due
to loss by fire or weather, or disease affecting
their crops adversely; and Provided further, that
such rate of payment shall in no event exceed five
cents (5c) per pound, and that no such payments
shall be made until there is established as a re-
serve an amount necessary to pay the expenses
which the commission estimates will be incurred
in the administration of this article for a period
of one crop year. (1937, c. 22, s. 9.)
§ 4930(11). Unlawful to sell, buy, etc., without
marketing certificate; restrictions upon dealers. —
Upon the establishment of marketing quotas for
any kind of tobacco for individual farms for any
crop year, pursuant to the provisions of this arti-
cle, it shall be unlawful:
(a) For any person knowingly to sell, to buy,
to redry or to condition or to otherwise process
any of such kind of tobacco harvested in such
crop year unless the marketing certificates there-
for have been issued as provided in this article.
(b) For any dealer to resell any of such kind
of tobacco for which marketing certificates have
not been issued as aforesaid prior to the redry-
ing, conditioning, or processing thereof, except in
his own name, or to resell any such tobacco except
that purchased and owned by him and covered by
a marketing certificate or resale certificate pre-
viously issued showing such dealer to be the pur-
chaser of such tobacco, or to redry, condition, or
process or to have redried, conditioned, or proc-
essed, prior to the resale thereof, any such to-
bacco covered by a resale certificate unless the re-
sale certificate issued with respect thereto is sur-
rendered to the commission. (1937, c. 22, s. 10.)
§ 4930(12). Violation punishable by forfeiture
of sum equal to three times value of tobacco. —
Any person wilfully selling, buying, redrying,
conditioning, or processing tobacco of any kind
with respect to which this article is effective for
which marketing certificates or resale certificates
have not been issued as provided in this article,
or any person wilfully participating or aiding in
the selling, buying, redrying, conditioning, or
processing of tobacco not covered by such mar-
keting or resale certificates, or any person offer-
ing for sale or selling any tobacco except in the
name of the owner thereof, shall forfeit to the
state a sum equal to three times the current mar-
ket value of such tobacco at the time of the com-
mission of such act, which forfeiture shall be re-
coverable in a civil suit brought in the name of
the state. (1937, c. 22, s. 11.)
§ 4930(13). Forfeiture for harvesting from acre-
age in excess of quota. — Any operator wilfully
harvesting or wilfully permitting the harvesting
of tobacco on a farm from an acreage in excess
of the acreage quota for the farm shall forfeit to
the state a sum equal to fifty dollars ($50.00) per
acre of that acreage harvested in excess of the
acreage quota for the farm, which forfeiture shall
be recoverable in a civil suit brought in the name
of the state. (1937, c. 22, s. 12.)
§ 4930(14). Violation a misdemeanor. — Any
person violating any provisions of this article, or
of any regulation of the commission issued pur-
suant thereto, shall be guilty of a misdemeanor
and upon conviction thereof shall be fined a sum
of not more than fifty dollars ($50.00) for the first
offense and not more than one hundred dollars
($100.00) for each subsequent offense. (1937, c.
22, s. 13.)
§ 4930(15). Penalty for failure to furnish infor-
mation on request of commission. — All tobacco
producers, warehousemen, buyers, dealers, and
other persons having information with respect
to the planting, harvesting, marketing, or redry-
ing or conditioning or processing of tobacco in
this state for sale or resale to manufacturers, do-
mestic or foreign, shall from time to time, upon
the written request of the commission or its duly
authorized representative, furnish such informa-
tion and file such returns as the commission may
find necessary or appropriate to the enforcement
of this article. Any person wilfully failing or re-
fusing to furnish such information or to file such
return, or wilfully furnishing any false information
or wilfully filing any false return, shall be guilty
of a misdemeanor, and upon conviction thereof
shall be fined a sum of not more than one hun-
dred dollars ($100.00) for each such offense. (1937,
c. 22, s. 14.)
§ 4930(16). Courts may punish or enjoin vio-
lations.— All courts of this state of competent ju-
risdiction are hereby vested with jurisdiction
specifically to punish violations of this article, and
the superior courts of the state are vested with
jurisdiction, upon application of the commission,
to enjoin and restrain any person from violating
the provisions of this article or of any regulations
issued pursuant to this article. (1937, c. 22. s. 15.)
§ 4930(17). Attorneys for state to institute pro-
ceedings, etc., commission to report violations to
N. C. Supp.— 10
[145]
§ 4930(18)
AGRICULTURE
§ 4944
solicitors, etc. — Upon the request of the commis-
sion it shall be the duty of the several attorneys
for the state, in their respective jurisdictions, to
institute proceedings to punish for the offenses,
enforce the remedies, and to collect the forfeitures
provided for in this article, and it shall foe the
duty of the commission to call to the attention of
the prosecuting officers of the state any violation
of any of the criminal provisions of this article.
(1937, c. 22, s. 16.)
§ 4930(18). Receipts from surplus produced in
other states, paid to commission of such states;
co-operation with other commissions. — In order
to assure the proper co-ordination of the adminis-
tration of this article with the administration of
similar acts of other states, marketing certificates
and resale certificates shall be issued by the
commission, in accordance with regulations pre-
scribed by the commission, with respect to to-
bacco marketed in this state, or redried, condi-
tioned, or processed in this state prior to the first
sale thereof, or resold, even though such tobacco
was produced in another state, and the receipts
from sales of marketing certificates for surplus
tobacco produced in such other state shall be paid
to the commission of the state in which such to-
bacco was produced, and the commission shall co-
operate with and assist the commission of any
other state in obtaining such records as may be
necessary to the administration of any similar act
of such state. (1937, c. 22, s. 18.)
§ 4930(19). Form and provisions of compact. —
The compact referred to in section 4930(3) shall
contain the provisions shown below, subject to
such alterations or amendments as shall not be in
conflict with the provisions of this article, and as
shall be agreed upon from time to time by the
states which enter into such compact.
COMPACT
This agreement entered into this day
of between the State of by
, Governor; the State of by
, Governor; the State of by
, Governor, and the State of
by , Governor, Witnesseth:
Whereas, the parties hereto have each enacted
a state statute providing for the regulation and
control of the production and sale of tobacco in
the states, and providing for the protection of the
producers' tobacco crops from the adversities of
unfavorable weather, crop diseases, and fire; and
Whereas, it is the desire of the parties uni-
formly to enforce each state statute so as to ac-
complish the purposes for which each act was en-
acted:
Now, therefore, the parties do hereby jointly
and severally agree as follows:
(1) To co-operate with each other in estab-
lishing for each crop year a marketing quota for
each state for each kind of tobacco referred to in
the respective state statutes with respect to which
such state statutes are or will be in effect for such
crop year.
(2) To co-operate with each other in formulat-
ing such regulations as will assure uniform and ef-
fective administration and enforcement of each of
the aforesaid state statutes.
(3) Not to depart from or fail to enforce to the
best of its ability any regulation concerning the
enforcement of the state statutes without the con-
sent of a majority of the members of the tobacco
commissions of each of the several parties to this
compact.
In witness whereof, the parties have hereunto
set their hands as of the day of the year first
above written.
By
State of . . .
Governor.
By
State of...
Governor.
By
State of...
Governor.
By
22, s. 19.)
Art. 20. Boys'
Road Patrol
Governor.
(1937,
§ 4931. Boys' road patrol authorized. — The state
board of education, whose duty it shall be to ap-
point a director of the work of the boys' road pa-
trol in the state of North Carolina is hereby
charged with the duty of authorizing a brigade of
school fooys in this state to be called the Boys'
Road Patrol, and to be composed of fooys who at-
tend the public schools of the state. (1915, c. 239,
s. 1; 1925, c. 300, s. 1; 1937, c. 399, s. 1.)
Editor's Note. — Prior to the 1937 amendment, this sec-
tion applied only to boys who attended rural public schools.
§ 4932, Duties of patrol. — The duties of such
patrol to foe to look after the maintenance of the
road lying near the home of each member of the
patrol, dragging and ditching same by the use of
machinery placed in the care of the patrol by the
state and county in such manner as the state board
of education shall direct and prevent forest fires
foy extinguishing fire along the public highway,
study safety rules and methods, practice research
along safety lines to the end of removing hazards
from the highways. (1915, c. 239, s. 2; 1925, c.
300, s. 2; 1937, c. 399, s. 2.)
Editor's Note. — The 1937 amendment added the latter part
of this section relating to study of safety rules, etc.
Art. 21. Agricultural Societies and Fairs
Part 2. County Societies
§ 4944. Exhibits exempt from state and county-
taxes. — Any society or association organized un-
der the provisions of this chapter, desiring to be
exempted from the payment of state, county, and
city license taxes on its exhibits, shows, attrac-
tions, and amusements, shall each year, not later
than sixty (60) days prior to the opening date of
its fair, file an application with the commissioner
of revenue for a permit to operate without the
payment of said tax; said application shall state
the various types of exhibits and amusements for
which the exemption is asked, and also the date
and place they are to foe exhibited. The commis-
sioner of revenue shall immediately refer said ap-
plication to a committee consisting of the presi-
dent of the North Carolina association of agricul-
tural fairs, the commissioner of agriculture, and
the director of the extension service of North Car-
olina State College for approval or rejection. If
[146]
§ 4958(7)
BARBERS
§ 5O03(w)
the application is approved by said committee, the
commissioner of revenue shall issue a permit to
said society or association authorizing it to exhibit
within its fair grounds and during the period of
its fair, without the payment of any state, county,
or city license tax, all exhibits, shows, attractions,
and amusements as were approved: Provided,
however, that the commissioner of revenue shall
have the right to cancel said permit at any time
upon the recommendation of said committee. Any
society or association failing to so obtain a per-
mit from the commissioner of revenue or having
its permit canceled shall pay the same state,
county, and city license taxes as may be fixed by
law for all other persons or corporations exhibit-
ing for profit within the state, shows, carnivals, or
other attractions. (Rev., s. 3871; 1905, c. 513, s. 2;
1935, c. 371, s. 107.)
Editor's Note. — The 1935 amendment so changed this sec-
tion that a comparison here is not practical.
Art. 23. Erosion Equipment
§ 4958(7). Counties excepted. — This article shall
not apply to the counties of Alleghany, Alexander,
Ashe, Avery, Bladen, Buncombe, Camden, Colum-
bus, Cumberland, Davie, Gates, Haywood, Hyde,
Jackson, Lincoln, Macon, Madison, Moore, New
Hanover, Pamlico, Pasquotank, Rutherford, Samp-
son, Transylvania, Washington, Watauga, Wilkes,
and Yadkin. (1935, c. 172, s. 7; 1937, c. 25.)
Editor's Note. — The 1937 amendment struck out "Union"
from the list of excepted counties.
CHAPTER 87B
BARBERS
§ 50O3(n). Fees.— The fee to be paid by appli-
cant for examination to determine his fitness to
receive a certificate of registration, as a registered
apprentice, shall be five ($5.00) dollars, and such
fee must accompany his application. The annual
license fee of an apprentice shall be three ($3.00)
dollars. The fee to be paid by an applicant for
an examination to determine his fitness to receive
a certificate of registration as a registered barber
shall be fifteen ($15.00) dollars, and such fee must
accompany his application. The annual license
fee of a registered barber shall be five ($5.00) dol-
lars. All licenses, both for apprentices and for
registered barbers, shall be renewed as of the thir-
tieth day of June of each and every year, and such
renewals for apprentices shall be three ($3.00) dol-
lars, and for registered barbers five ($5.00) dollars.
The fee for restoration of an expired certificate
for registered barbers shall be seven ($7.00) dol-
lars, and restoration of expired certificate of an
apprentice shall be four ($4.00) dollars: Provided,
the difference between the fees now being charged
and the fees herein provided for shall be used ex-
clusively for the employment of additional inspec-
tors and the payment of their necessary expenses
of inspection, it being the purpose of this law to
provide as nearly as possible equal inspection
throughout the state of North Carolina. The fees
herein set out are not to ibe increased by the board
of barber examiners, but said board may regulate
the payment of said fees and prorate the license
[14
fees in such manner as it deems expedient. (1929,
c. 119, s. 14; 1937, c. 138, s. 4.)
Editor's Note.— The 1937 amendment increased the fees
charged under this section and inserted the provision as
to use of additional fees.
§ 5003 (o). Persons exempt from provisions of
chapter.
See note under § 5003(w).
§ 5003 (p). Rules for sanitation in barber shops
&nd schools; inspection; posting rules.
See note under § 50O3(w).
§ 5003 (r). Renewal or restoration of certificates.
— Every registered barber and every registered
apprentice who continues in practice or service
shall annually, on or before June thirtieth of each
year, renew his certificate of registration and fur-
nish such health certificate as the board may pre-
scribe and pay the required fee. Every certificate
of registration shall expire on the thirtieth day of
June in each and every year. A registered barber
or a registered apprentice whose certificate of reg-
istration has expired may have his certificate re-
stored immediately upon paying the required res-
toration fee and furnishing health certificate pre-
scribed by the board: Provided, however, that
registered barber or registered apprentice whose
certificate has expired for a period of three years
shall be required to take the examination pre-
scribed by the state iboard of barber examiners,
and otherwise comply with the provisions of chap-
ter one hundred nineteen of the Public Laws of
one thousand nine hundred twenty-nine [§ 5003(a)
et seq.] before engaging in the practice of barber-
ing. (1929, c. 119, s. 18; 1937, c. 138, s. 5.)
Editor's Note.— The 1937 amendment added the provi-
sions as to furnishing health certificate and taking ex-
amination.
§ 5003 (u). Misdemeanors. — Each of the follow-
ing constitutes a misdemeanor, punishable upon
conviction by a fine of not less than ten dollars,
nor more than fifty ($50.00) dollars, or thirty days
in jail or both:
1(a). The violation of any of the provisions of
section 5003(e).
1(b). The refusal of any owner or manager to
permit any member of the board, its agents, or
assistants to enter upon and inspect any 'barber
shop, or barber school, or any other place where
•barber service is rendered, at any time during
business hours.
7. The violation of the reasonable rules and reg-
ulations adopted by the state board of barber ex-
aminers for the sanitary management of barber
schools. (1929, c. 119, s. 21; 1933, c. 95, s. 1;
1937, c. 138, s. 6.)
Editor's Note.— The 1937 amendment inserted the words-
"or thirty days in jail or both" in the first paragraph,,
and struck out the words "wilful and continued" for-
merly appearing before the word "violation" in subsec-
tion 7. It also inserted subsections 1(a) and 1(b).
Subsections (1), (2) -(6), not being affected by the
amendment, are not set out.
§ 5008(w): Repealed by Public Laws 1937, c.
138, s. 1.
Editor's Note.— Public Laws 1937, c. 138, s. 1, provides:
"Section twenty- three of chapter one hundred nineteen of
the Public Laws of one thousand nine hundred twenty-nine,
section two of chapter thirty-two of the Public Laws of
one thousand nine hundred thirty-one, and section three
of chapter ninety-five of the Public Laws of one thousand
nine hundred thirty-three are hereby repealed: Provided,
§ 5003 (wl)
BOARD OF CHARITIES
§ 5014
this act shall not apply to any person who shall perform
the services of a barber without compensation."
§ 5003(wl). Chapter given state-wide applica-
tion.— The provisions of this chapter, known as
the State Barbers' License Law, shall apply to all
persons except those persons specifically exempted
under section 5003(o). (1937, c. 138, s. 2.)
§ 5003(w2). When barbers entitled to certificate
of registration without examination. — The proce-
dure for the registration of present practitioners
that have not been affected by chapter one hun-
dred nineteen of the Public Laws of one thousand
nine hundred twenty-nine, chapter thirty-two of
the Public Laws of one thousand nine hundred
thirty-one, chapter ninety-five, of the Public Laws
of one thousand nine hundred thirty-three, and
chapter three hundred forty-one of the Public
Laws of one thousand nine hundred thirty-five [§
5003(a) et seq.] shall be as follows:
(a) If such person has been practicing barber-
ing in the state of North Carolina for more than
eighteen months and is actively engaged in the
practice of harbering at the time this bill is en-
acted into law, he shall, upon making affidavit to
that effect and paying the required fee to the board
of barber examiners, he issued a certificate of reg-
istration as a registered barber.
(b) All persons, however, who do not make ap-
plication prior to January first, one thousand nine
hundred thirty-eight, shall be required to take the
examination prescribed by the state board of bar-
ber examiners, and otherwise comply with the
provisions of chapter one hundred and nineteen
of the Public Laws of one thousand nine hundred
twenty-nine, [■§ 5003(a) et seq.] before engaging
in the practice of ibarbering. (1937, c. 138, s. 3.)
§ 5003 (x). Valid parts of chapter upheld. — If
any section of this chapter shall be declared un-
constitutional for any reason, the remainder of
this chapter shall not be affected thereby. (1929,
c. 119, s. 24; 1937, c. 138, s. 7.)
CHAPTER 88
BOARD OF CHARITIES
Art. 1. State Board of Charities and Public
Welfare
§ 5004. Election and term of office.— There shall
be elected by the general assembly, upon the rec-
ommendation of the governor, seven persons who'
shall be styled "The State Board of Charities and
Public Welfare," and at least one of such persons
shall be a woman. At the session of the general
assembly for the year one thousand nine hundred
and seventeen all the members of such board shall
be elected, three for a term of two years, two for
a term of four years, and two for a term of six
years, and thereafter the term shall be six years
for all. The election shall be by concurrent vote
of the general assembly, and appointments to fill
vacancies in the board arising from any cause
whatsoever, except expiration of term, shall be
made for the residue of such term iby the gover-
nor. The governor shall designate the chairman
of the board so selected, which chairmanship so
designated may be changed as the governor may
deem best to promote the efficiency of the service.
The members of the board shall serve without
pay, except that they shall receive their necessary
expenses: Provided, however, that the chairman
of the said board, when acting as a member of the
state board of allotments and appeal — established
in an act of the present legislature, relating to the
old age assistance and aid to dependent children
— shall receive a per diem to be fixed by the di-
rector of the budget, together with actual expenses
incurred in attending meetings. (Rev., s. 3913;
Code, s. 2331; 1868-9- c. 170, s. 2; 1909, c. 899;
1937, c. 319, s. 1.)
Editor's Note. — The 1937 amendment inserted the fourth
sentence and the proviso.
§ 5006. Powers and duties of board. —
8. To employ, by and with the approval of the
governor, a trained investigator of social service
problems who- shall be known as the commissioner
of public welfare, and to employ such other in-
spectors, officers, and agents as it may deem need-
ful in the discharge of its duties.
(1937, c. 319, s. 2.)
Editor's1 Note. — The 1937 amendment inserted the words
"by and with the approval of the governor" in sub-section
8 of this section. The rest of the section, not being af-
fected by the amendment, is not set out.
Art. 2. County Boards of Charities and Public
Welfare
§ 5014. County boards of charities and public
welfare; appointment; duties. — From and after the
ratification of this law, the county boards of chari-
ties and public welfare in the several counties of
the state shall consist of three members, appointed
as follows: one by the hoard of county commis-
sioners of the county, one by the state board of
charities and public welfare, and a third member
selected by such two appointed members. In case
the two members thus appointed are unable to
agree on the appointment of a third member, such
third member shall be appointed by the judge of
the superior court residing in the district.
As soon as practicable after the ratification of
this law, the respective appointments shall be
made: Provided, however, that in order to secure
overlapping terms of office and to give continuity
of policy, at the first appointments, there shall be
selected by the county commissioners one mem-
ber for a period of two years and by the state
board of charities and public welfare one member
for a period of one year, and the third member se-
lected in the manner aforesaid shall be for a term
of three years; and at the expiration of the terms
of those having a period of less than three years,
their successors shall be appointed for a term of
three years each, so that thereafter the term of
each member of the board shall be a term of three
years. No memiber shall be eligible to succeed
himself after two successive terms as a member
of a county board of welfare.
The county board of charities and public wel-
fare shall have the duty of selecting the county
superintendent of public welfare, in joint session
with the board of county commissioners; they
shall act in a joint advisory capacity to the county
and municipal authorities in developing policies
and plans in dealing with problems of dependency
and delinquency, distribution of the poor funds,
and social conditions generally, including co-op-
erations with other agencies in placing indigent
[ 148
§ 5015
BOARD OF CHARITIES
§ 5018(3)
persons in gainful enterprises, and shall have such
other powers and duties as are prescribed by law,
and particularly those set out in the laws pertain-
ing to social security, old age assistance, and aid
to dependent children. The members of the
county boards of charities and public welfare shall
serve without compensation. The provisions of
this section shall not apply to Wake county.
(1917, c. 170, s. 1; 1919, c. 46, s. 3; 1937, c. 319,
s. 3.)
Editor's Note.— The 1937 amendment so changed this sec-
tion that a comparison here is not practical.
§ 5015. Meetings of board. — The county boards
of charities and public welfare so appointed shall
meet immediately after their appointment and or-
ganize by electing a chairman. The county super-
intendent of public welfare, selected as hereinafter
provided, shall be the executive officer of the board,
and shall act as secretary. The county board shall
meet at least once a month with the superintendent
of public welfare and advise with him in regard
to problems pertaining to> his office. (1917, c. 170,
s. 1; 1919, c. 46, s. 4; 1937, c. 319, s. 4.)
Editor's Note.— The 1937 amendment omitted from this
section the provision relating to term of office.
§ 5016. County superintendent of public welfare;
appointment; salary. — On the first Monday in
June, one thousand nine hundred thirty-seven, and
on the first Monday in June of odd years there-
after, it shall be mandatory for the board of county
commissioners and the county board of charities
and public welfare of every county in North Caro-
lina to meet in joint session for the purpose of
making the appointment of a county superintend-
ent of public welfare, who shall be the executive
officer of the board of charities and public wel-
fare. The person selected as county superintend-
ent of public welfare shall be qualified by character,
fitness, and experience to discharge the duties
thereof. The person so selected as superintendent
of public welfare, after the appointment has been
approved by the state board of charities and pub-
lic welfare, shall begin his work on the first Mon-
day in July, or as soon thereafter as such approval
may be made. If the state board does not approve
the selection, the joint board of county commis-
sioners and county welfare department shall meet
immediately and make a new selection to send to
the state board for their consideration for ap-
proval: Provided, that if the person so elected
shall not be approved by the state board of chari-
ties and public welfare, then the board of county
commissioners and the county board of charities
and public welfare shall proceed immediately to
elect another person as provided above.
When in joint session for the purpose of electing
the superintendent of public welfare, the members
of the board of county commissioners and the
members of the county board of charities and pub-
lic welfare shall vote as members of one body. In
case of a tie vote, the matter shall be referred for
decision to the judge of the superior court resi-
dent in the district. A joint session of the two
boards shall be held at any time on the call of the
chairman of the commissioners for the purpose of
discussing the work relating to the office; and a
superintendent may be dismissed by joint action
for proven unfitness or failure in the performance
of duty and a successor elected.
The county superintendent of public welfare
shall receive such salary as may be determined
upon by the board of county commissioners, either
at the time of his appointment or at such time as
they may be in regular session or a called session
for the purpose. The salary shall be sufficient to
secure the services of a well-qualified person. The
salary so fixed shall be paid by the counties re-
spectively: Provided, that in counties where finan-
cial conditions render it urgently necessary the
state board may cause to be paid, oat of any state
or federal fund available for the purpose, such
portion of the salary of the superintendent of wel-
fare of any county as, in the discretion of the state
board, may be necessary. Levy of taxes for the
special purpose of payment of the salary of the
county superintendent of welfare is hereby au-
thorized and directed. The provisions of this sec-
tion shall not apply to Wake county. (1917, c. 170,
s. 1; 1919, c. 46, ss. 3, 4; 1921, c. 128; 1929, c. 291,
s. 1; 1931, c. 423; 1937, c. 319, s. 5.)
Editor's Note. — The 1937 amendment so changed this
section that a comparison here is not practical.
Art. 3. Division of Public Assistance
§ 5018(1). Division of public assistance created.
— There is hereby created in the state board of
charities and public welfare a division of public
assistance, including (a) assistance to aged needy
persons, and (b) aid to dependent children, as ad-
ministered under authority of this article. (1937,
c. 288, s. 1.)
§ 5018(2). Director of public assistance. — As
soon as practicable after the ratification of this
article, the commissioner of welfare, with the ad-
vice and approval of the governor, shall employ a
whole-time executive to be known as "director of
public assistance." Such director, under the au-
thority and supervision of the commissioner of
welfare, shall have charge of the administration of
the division herein created, and shall actively di-
rect its affairs; and shall perform such other du-
ties as may be required of him by the rules and
regulations adopted by the state board. He shall
see that this article is properly administered, that
the requirements thereof are carried out in a timely
and orderly manner, that administration of this
division shall be kept at all times properly co-or-
dinated and efficiently maintained in agreement
with other agencies of the state and with the fed-
eral government; and shall perform such other
duties as are customary in his position.
The director of public assistance shall receive
such salary and compensation as may be fixed by
the director of the budget; and his tenure of of-
fice shall be such as may be fixed by rules and reg-
ulations of the department relative thereto and ap-
proved by the governor, subject to termination
when, in the opinion of the governor and the com-
missioner of welfare, the public interest may de-
mand it. (1937, c. 288, s. 2.)
TITLE I.
Old Age Assistance
§ 5018(3). Establishment of relief. — The care
and relief of aged persons who are in need and
who are unable to provide for themselves is a
[ 149
§ 5018(4)
BOARD OF CHARITIES
§ 5018(8)
legitimate obligation of government which cannot
be ignored or avoided without injustice to such
persons and serious detriment to the purposes of
organized society. Such care and relief is hereby
declared to be a matter of state concern and neces-
sary to promote the public health and welfare. In
order to provide such care and relief at public ex-
pense, to the extent that the same may be proper,
with due regard to the revenues which the state
may equitably enjoy, and with due regard for
other necessary objects of public expenditure, a
state-wide system of old age relief is hereby es-
tablished, to operate uniformly throughout the
state and in every county thereof, and with due
regard to the varying living conditions and the
financial, physical, and other conditions of the
lecipient of such relief, more particularly dealt
with in this article. The provisions of this article
are mandatory on the state, and each and every
county thereof, and, whenever the levy of any tax
is required or directed herein, it shall be under-
stood that the said tax is levied for a special pur-
pose; and full authority is hereby given to the
boards of county commissioners of the several
counties to levy, impose, and collect the taxes
herein required for the special purpose of old age
assistance, as defined and provided for in this ar-
ticle. (1937, c. 288, s. 3.)
For article discussing social security, see 15 N. C. I,aw
Rev., No. 4, p. 369.
§ 5018(4). Definitions. — As used in this article,
■"state board" shall mean the state board of chari-
ties and public welfare, established by chapter
eighty-eight, Consolidated Statutes of North Caro-
lina.
"The county board of welfare" shall mean the
county board of charities and public welfare of
each of the several counties, as now established
by law, subject to such modification as may be
made by law.
"Applicant" shall mean any person who has ap-
plied for relief under this title.
"Recipient" shall mean any person who has re-
ceived assistance under the provisions of this title.
"Assistance" as used under this title means the
money payments to needy aged persons.
"Deputies" and "supervisors" shall mean such
persons as may be designated and appointed by
the state board to exercise its power and duty of
supervision under this article. (1937, c. 288, s. 4.)
§ 5018(5). Acceptance of federal grants. — The
provisions of the Federal Social Security Act, re-
lating to grants in aid to the state for old age as-
sistance and the benefits thereunder, are hereby
-accepted and adopted, and the provisions of this
-article shall be liberally construed in relation to
the said Federal Social Security Act, so that the
intent to comply therewith shall be made effectual.
(1937, c. 288, s. 5.)
§ 5018(6). Eligibility. — Assistance shall be
:granted under this article to any person who:
(a) Is sixty-five years of age and over;
<b) Is a citizen of the United States;
((c) Has not sufficient income, or other resources,
to provide a reasonable subsistence compatible
with decency and health;
(d) Is not an inmate of any public institution
at the time of receiving assistance. An inmate of
[1
such institution may, however, make application
for such assistance, but the assistance, if allowed,
shall not begin until after he ceases to be an in-
mate.
(e) Has not made an assignment or transfer of
property for the purpose of rendering himself eligi-
ble for assistance under this article at any time
within two years prior to the filing of application
for assistance pursuant to the provisions of this
article.
(f) Has been a resident of this state five out of
the nine years preceding his application and for
one year immediately preceding the same. Resi-
dents of the state who have not resided in any
one county for the one year period necessary to
acquire a settlement therein shall, if otherwise
eligible, receive assistance out of the state appro-
priation to the full amount of the benefits awarded.
Eligibility of such persons upon application shall
be determined as in other cases and reported to the
state board of allotments and appeal.
Eligibility of applicants to receive benefits under
this title, and the amount of assistance given, and
such other conditions of award as it may be neces-
sary to determine shall be determined in the man-
ner hereinafter set out.
The amount of assistance which any person shall
receive shall be determined with due regard to the
resources and necessary expenditures of the in-
dividual and the conditions existing in each case,
and in accordance with the rules and regulations
made by the state board; and shall be sufficient
when added to all other income and support of
recipients to provide such person with a reason-
able subsistence compatible with decency and
health, but not exceeding thirty dollars ($30.00)
per month or three hundred sixty dollars ($360.00)
during one year; and of this not more than fifteen
dollars ($15.00) per month nor more than one hun-
dred eighty dollars ($180.00) in one year shall be
paid out of state and county funds. (1937, c. 288,
s. 6.)
§ 5018(7). State old age assistance fund. — A
fund shall be created to be known as "The State
Old Age Assistance Fund." This fund shall be
created by appropriations made by the state from
its ordinary revenues and such grants as may be
made for old age assistance under the Federal
Social Security Act. Said fund shall be used ex-
clusively for the relief of aged persons coming
within the eligibility provisions of this title and the
cost of administration of the same. The appro-
priations to be made by the state for such purpose
shall be supplemented by the amount provided un-
der the Federal Social Security Act for old age
assistance and such further amount as the state
may appropriate for the administration of this ar-
ticle. From said fund there shall be paid as here-
inafter provided three-fourths of the benefit pay-
ments to aged persons in accordance with the pro-
visions hereof, and the other one-fourth of said
payments shall, subject to the provisions of sec-
tion 5018(60), be provided by the several counties
of the state as hereinafter required. The cost of
administering the provisions of this title shall be,
in part, paid from said fund in accordance with
section 5018(24). (1937, c. 288, s. 7.)
§ 5018(8). State appropriation. — At its present
50 ]
§ 5018(9)
BOARD OF CHARITIES
§ 5018(14)
session, and biennially thereafter, the general as-
sembly shall appropriate out of its ordinary reve-
nues, for the use of such fund, such amount as
shall be reasonably necessary to carry out the pro-
visions of this article, and provide relief to the
aged persons coming within the eligibility provi-
sions herein set out, to such an extent as may be
proper upon due consideration of the ability of the
state to produce sufficient revenues, and with due
regard to other necessary objects of public expendi-
ture. (1937, c. 288, s. 8.)
§ 5018(9). County fund. — Annually, at the time
other taxes are levied in each of the several coun-
ties of the state, there shall be levied and imposed
a tax sufficient to raise such an amount as shall
be found necessary, in the manner thereinafter
provided, to supplement the state and federal funds
available for expenditure in said county for old
age assistance. The amount so ascertained shall
be an obligation of the county, and the taxes im-
posed shall be collectible as other taxes. (1937,
c. 288, s. 9.)
§ 5018(10). Appropriations not to lapse. — No
appropriation made for the purposes of this article
shall lapse or revert; but the unexpended balances
may be considered in the making of further ap-
propriations. Any proceeds of county taxation for
the purposes of this article remaining unexpended
shall be taken into account in determining the
amount to be raised by taxation during the ensu-
ing year, but shall not be used for any purpose not
authorized by this article. (1937, c. 288, s. 10.)
§ 5018(11). Custody and receipt of funds.— The
treasurer of the state of North Carolina is hereby
made ex officio treasurer of the State Old Age As-
sistance Fund herein established, including therein
such grants in aid for old age assistance as may
be received from the federal government for ad-
ministration and distribution in this state; and the
said treasurer is hereby designated as the proper
officer to receive grants in aid from the federal
government. The treasurer shall keep the funds
in a separate account, to be known as the "State
Old Age Assistance Fund," and shall be responsi-
ble therefor on his official bond; and the said funds
shall be protected by proper depository security
as other state funds. The said fund shall be drawn
upon and disbursed as hereinafter provided. (1937,
c. 288, s. 11.)
§ 5018(12). General powers and duties of de-
partment of charities and public welfare. — The
powers and duties of the state board of charities
and public welfare, established under Article XI,
section seven, of the Constitution of North Caro-
lina, and chapter eighty-eight of the Consolidated
Statutes of North Carolina, and of the office of
commissioner of welfare established thereunder,
are not hereby abridged. The powers and duties
herein given shall be in addition to those hereto-
fore exercised under existing law; and the state
board of charities and public welfare, through the
commissioner of welfare as the executive head of
the department, is hereby empowered to organize
the department into such bureaus and divisions as
may be deemed advisable, not inconsistent with
the provisions of this article, in order that the
work of the entire department shall be co-ordi-
nated on an efficiency basis and duplication of ef-
fort may be avoided. (1937, c. 288, s. 12.)
§ 5018(13). Certain powers and duties of state
board of charities and public welfare. — The state
board shall:
(a) Supervise the administration of assistance to
the needy aged under this article by the county
boards;
(b) Make such rules and regulations and take
such action as may be necessary or desirable for
carrying out the provisions of this article. All
rules and regulations made by the state board shall
be binding on the counties and shall be complied
with by the respective boards of county commis-
sioners and county boards of welfare;
(c) Establish minimum standards for personnel
employed by the state and county boards in the
administration of this article, and make necessary
rules and regulations to maintain such standards;
(d) Prescribe the form of and print and supply
to the county boards and agencies such forms as
it may deem necessary and advisable;
(e) Co-operate with the federal government in
matters of mutual concern pertaining to assistance
to the needy aged, including the adoption of such
methods of administration as are found by the
federal government to be necessary for the efficient
operation of the plan for such assistance;
(f) Make such reports, in such form and con-
taining such information, as the federal govern-
ment may from time to time require, and comply
with such provisions as the federal government
may from time to time find necessary to assure
the correctness and verification of such reports;
(g) Publish an annual report and such interim
reports as may be necessary. (1937, c. 288, s. 13.)
§ 5018(14). Certain powers and duties of local
boards — county welfare boards. — The county
boards of welfare shall perform the duties herein
required of them with relation to the administra-
tion of this article in the several counties, under
the supervision and direction of the state board,
and in accordance with the rules and regulations
prescribed by said state board.
The county boards of welfare shall:
(a) Report to the state board at such times and
in such manner and form as the state board may
from time to time direct;
(b) Submit to the state board the information
required in this article preliminary to determina-
tion of the county's quota of funds and the de-
termination of the amount required to be raised
by taxation, together with its estimate and sup-
porting data, setting forth the amount of money
needed to carry out the provisions of this article;
also submit to the board of county commissioners
a duplicate of the estimate and supporting data
furnished by it to the state board. Make and re-
port to the state board and to the county board of
commissioners such investigation as may be re-
quired in order that said state board and boards
of county commissioners may be fully informed
as to the assistance required by aged persons com-
ing within the eligibility provisions of this article,
and may have such other information as may be
required for proper determination upon any matter
coming before the said boards;
(c) Perform any other duties required of them
[ 151
§ 5018(15)
BOARD OF CHARITIES
§ 5018(18)
under this article or by proper rules and regula-
tions made by the state board under authority
thereof. (1937, c. 288, s. 14.)
§ 5018(15). Application for assistance; determi-
nation therein. — Applications for assistance under
this article shall be made to the county welfare
board of the county in which the applicant resides.
Such application shall be in writing and in dupli-
cate, in compliance with the rules and regulations
established by the state board, which is required
to furnish forms for such applications, and shall
be verified by the oath of the applicant. Where
the applicant is unable to present his application
in writing by reason of illiteracy or other cause,
the application shall be reduced to writing and
filed in duplicate, on such forms as may be sup-
plied by the state board, or substantially in agree-
ment therewith. The county board of welfare, and
the county welfare officer, shall render to appli-
cants for assistance under this article such aid and
assistance in the preparation of applications as
may be necessary. The application shall contain a
statement of the amount of property, both real and
personal, in which the applicant has an interest,
and of all income which he may have at the time
of filing the application, and shall contain such
other information as may be required by the rules
and regulations of the state board. One copy of
the application shall be forwarded to the state
board.
Whenever a county board of welfare receives an
application for assistance under this article, an in-
vestigation and record shall promptly be made of
the circumstances of the applicant, in order to as-
certain the facts supporting the application, and in
order to obtain such other information as may be
required by the rules of the state board. In the
making of such investigation, the county welfare
board and the county welfare officer shall make
diligent investigation and record promptly all the
information which it is reasonably possible to ob-
tain with respect to such application.
Upon the completion of the investigation, the
county board of welfare shall, upon due considera-
tion, determine whether the applicant is eligible
for assistance under the provisions of this article,
and shall determine the amount of such assistance
and the date on which it shall begin, but such
award shall in no case exceed thirty dollars
($30.00) per month or three hundred sixty dollars
($360.00) in one year, and there shall not be paid
thereupon out of state and county funds more than
fifteen dollars ($15.00) per month or more than
one hundred eighty dollars ($180.00) in one year.
Such award so made when effective shall there-
after be paid in advance monthly to the applicant,
disbursement being made in the same manner and
under the same procedure as in case of other
county funds.
The county board of welfare shall promptly
notify by mail each applicant of its action disallow-
ing the application or granting assistance, stating,
in case award is made, the amount of the award
and when assistance shall be paid. A copy of such
notice shall be immediately forwarded to the board
of county commissioners and a duplicate copy for-
warded to the state board of allotments and ap-
peal. All awards and applications on which they
are based shall be open to public inspection. (1937,
c. 288, s. 15.)
§ 5018(16). Action by county commissioners. —
The board of county commissioners, in the event
that they shall be of the opinion that any award
made by the county board of welfare should be
reconsidered and reviewed by them, shall have the
right to review such award. In case of such action
by the board of county commissioners, notice shall
be given to the applicant fixing the time and place
at which such reconsideration will be held. In the
event the board of county commissioners deems
that any award should be in any respect changed,
an order shall be made thereon accordingly and
notice thereof given to the applicant and a copy
sent to the county board of welfare and the state
board of allotments and appeal. (1937, c. 288,
s. 16.)
§ 5018(17). Assistance not assignable. — The as-
sistance granted under this article shall not be
transferable or assignable at law or in equity; and
none of the money paid or payable under this arti-
cle shall be subject to execution, levy, attachment,
garnishment, or other legal process, or to the op-
eration of any bankruptcy or insolvency law.
(1937, c. 288, s. 17.)
§ 5018(18). State board of allotments and ap-
peal. — For the purpose of making allotment of
state and federal funds to the several counties, and
of giving to applicants appealing from the county
boards a fair hearing and determination upon such
applications and appeal, there shall be created
within the state board of charities and public wel-
fare and as an agency of said board, subject to its
supervision and control by rules and regulations
adopted by it, a body to be known as "The State
Board of Allotments and Appeal," consisting of
three members as follows:
The chairman of the state board of charities and
public welfare;
The commissioner of welfare;
The director of public assistance, established by
this article; all of whom shall be ex officio mem-
bers of the state board of allotments and appeal.
The chairman of the state board of charities and
public welfare shall be the chairman of the board
of allotments and appeal.
If an application is not acted upon by the county
welfare board within thirty days, or is denied in
whole or in part, or if any award of assistance is
modified or canceled under any provisions of this
article, the applicant or recipient may appeal to the
board of allotments and appeal in the manner and
form prescribed by the said board of allotments
and appeal. The board of allotments and appeal
shall, upon receipt of such an appeal, give the ap-
plicant or recipient, the board of county commis-
sioners and the county board of welfare reasonable
notice anq\ opportunity for a fair hearing. Upon
such hearing the applicant or recipient shall have
an opportunity of presenting his claim in full to
the board upon such evidence as may be pertinent
or proper; and the board of allotments and appeal
shall diligently inquire into the matter, and shall
approve or disapprove or modify the action of the
county board of welfare or the board of county
commissioners, as in the judgment of the board of
allotments and appeal may be just and proper.
[152]
§ 5018(19)
BOARD OF CHARITIES
§ 5018(21)
Upon any appeal from the board of county com-
missioners or county board of welfare, it shall be
the duty of such board to forward to the board of
allotments and appeal a certified copy of the
order refusing assistance or granting the same,
with such information, in brief, as may bear upon
the application and the action of the board of com-
missioners or county board of welfare, and such
papers and documents or other matter as may be
required under the rules of the state board of al-
lotments and appeal, or under its order in the
particular matter.
When the state board of allotments and appeal
shall have made its final decision upon the matter,
notice thereof shall be given to the applicant or
recipient and to the board of county commissioners
and county board of welfare. The decision of the
state board of allotments and appeal shall be final.
The state board of allotments and appeal may
also, on notice to the board of county commission-
ers and county board of welfare, upon its own mo-
tion, review any decision of the board of county
commissioners or county board of welfare, and
may consider any application upon which a de-
cision has not been made within thirty days. The
state board of allotments and appeal may make
such additional investigation as it may deem
necessary in all cases, and make such decision
thereupon as in its opinion is justified and in con-
formity with the provisions of this article. Appli-
cants, or recipients, affected by such decision of
the state board of allotments and appeal shall, up-
on request, be given reasonable notice and oppor-
tunity for a fair hearing by the state board of al-
lotments and appeal. All decisions of the state
board of allotments and appeal shall be final and
shall be binding upon the county involved, and
shall be complied with by the board of county
commissioners and county board of welfare.
The state board may authorize hearings of ap-
peals in any county by other representatives
selected by said board, subject to final determina-
tion by the state board of allotments and appeal.
(1937, c. 288, s. 18.)
§ 5018(19). Periodic reconsideration and changes
in amount of assistance. — All assistance grants
made under this article shall be reconsidered as
frequently as may be required by the rules of the
state board. It shall be the duty of the county
welfare board, with the assistance of the county
welfare officer, to keep fully advised as to ques-
tions concerning old age assistance and the pro-
priety and necessity of the continuance thereof to
recipients and as to such changed conditions relat-
ing to recipients as may affect the necessity for
such assistance or the amount thereof.
Where changes have occurred in the condition
of any recipient requiring a modification or can-
cellation of an award, the county board of welfare
is authorized and empowered to make such changes
as the facts and circumstances may justify and in
accordance with the provisions of this law.
Prompt notice of such action shall be given to the
recipient, and a copy of such notice shall be sent
to the state board and board of county commis-
sioners. Such action on the part of the county
board shall be subject to review by the state board
as provided in cases of original awards, and the
recipient shall have the right to appeal therefrom
to the state1 board of allotments and appeal as in
cases of original awards. (1937, c. 288, s. 19.)
§ 5018(20). Removal to another county. — Any
recipient who moves to another county in this
state shall be entitled to receive assistance in the
county to which he has moved, and the board of
county commissioners of the county from which
he has moved shall transfer all necessary records
relating to the recipient to the county board of
commissioners of the county to which he has
moved. The county from which the recipient
moves shall pay the assistance for a period of three
months following such removal, not in excess of
amount paid before removal, and thereafter as-
sistance shall be paid by the county to which such
recipient has moved.
In the event that a resident of this state has not
lived in any county of the state for the twelve
months period necessary to acquire a settlement
therein, nevertheless, if otherwise eligible, such
resident shall be allowed assistance upon applica-
tion to the board of welfare of the county in which
he has been domiciled, in the same manner as as-
sistance is allowed to persons in the county who
have acquired a settlement therein; but such al-
lowance of assistance shall be paid entirely out of
the State Old Age Assistance Fund, without par-
ticipation of the county therein; and in allocating
funds to the county for the purpose of disburse-
ment to recipients under this article, the state
board of allotments and appeal is authorized and
empowered to reserve out of such allocations and
to transmit to the counties concerned a sufficient
amount of the state fund to provide for disburse-
ment to such residents who have not acquired set-
tlement in any county. (1937, c. 288, s. 20.)
§ 5018(21). Procedure preliminary to allotments
and county taxation; investigation and report. — It
shall be the duty of the county welfare boards to
make diligent investigation within the county and
obtain and record statistical and other information
concerning aged persons in the county entitled to
assistance under this article, and to keep such in-
formation compiled in convenient accessible form.
Therefrom they shall, annually, on or before the
first day of June, one thousand nine hundred thirty-
seven, and thereafter on or before the first day of
May, compile and make a report to the board of
county commissioners, for their better information
and guidance, which report shall contain a concise
statement or estimate of the total amount neces-
sary to be expended within the county to carry
out the provisions of this article for the next en-
suing fiscal year, accompanied by such supporting
data as the state board of allotments and appeal
may require. Such reports shall be made on forms
furnished by the state board, or in compliance with
the rules and regulations of said state board. A
copy thereof shall be immediately forwarded to the
state board.
Upon the information so furnished, and such
other information as may be available, or may be
obtained upon such further investigation as the
board of commissioners may see proper to make,
the board of commissioners shall make a careful
estimate of the amount necessary to be expended
within the county for the purposes of this article
for the ensuing fiscal year, and, separately stated,
[ 153
§ 5018(221)
BOARD OF CHARITIES
§ 5018(24)
the amount necessary to be raised by county tax-
ation. The board of county commissioners shall,
on or before the first day of June, one thousand
nine hundred thirty-seven, and thereafter on or
before the first day of May, make a report to the
state board of allotments and appeal, which report
shall contain the said estimates, with supporting
data, in such form and detail as the board of al-
lotments and appeal may require. (1937, c. 288,
s. 21.)
§ 5018(22). Allocation of funds. — As soon as
may be practicable after receiving- the said reports,
and before the time for the annual levy of taxes
in the respective counties, the state board of al-
lotments and appeal shall proceed to ascertain and
determine the amount of state and federal funds
available for disbursement in the counties for the
purposes of this article for the next ensuing fiscal
year. The board shall, at the same time, deter-
mine the amount to be raised in each of the respec-
tive counties by taxation to supplement the state
and federal funds allotted to such county. The al-
lotment of state and federal funds to any county
shall not exceed three times the amount to be
raised in said county by local taxation, except as
provided in section 5018(60).
The determination of such amount by the board
of allotments and appeal shall be final and binding
upon the several counties respectively, and shall
be a part of the county budget. The county com-
missioners shall, at the time of levying other taxes,
levy and impose upon all the taxable subjects
within the county a tax sufficient to produce such
amount; and the same shall be collected as other
taxes.
The proceeds of such taxes shall be kept in a
separate fund in the county treasury, and shall be
subject to the provisions of the Local Government
Act with respect to depository security and con-
trol, and shall be used only for the purposes of
this article. It shall be the duty of the board of
allotments and appeal to inquire into the condition
of the said fund from time to time and to require
that such protection be afforded the funds as oc-
casion may demand. The funds shall be disbursed
for the purposes of this article according to the
manner and procedure authorized for disbursement
of county funds, but only to persons whose eligibil-
ity or right to receive the same has been finally
approved. (1937, c. 288, s. 22.)
§ 5018(23). Administration expenses. — From
the appropriation made by the state for old age
assistance, the state board of allotments and ap-
peal shall, with the approval of the director of the
budget, allocate and expend such part thereof as
shall be required to pay the costs of administra-
tion of this article by the state board of charities
and public welfare, as necessarily incurred by said
board in its own administrative and supervisory
duties under the provisions of this article, includ-
ing the administrative expenses necessarily in-
curred by its agency, the state board of allotments
and appeal.
The state board of allotments and appeal shall
annually allocate to the several counties of the
state, in accordance with the total amount of bene-
fit payments to be paid in each county for old age
assistance therein, the sum provided by the federal
[1
government under the Social Security Act for pay-
ment of administrative expenses. Any amounts in
excess of said allotments to the several counties,
which are necessary to the proper administration
of this article by the several counties, shall be de-
termined by the state board of allotments and ap-
peal upon budgets submitted to said board by the
county welfare boards in each county. Said deter-
mination shall be made on or before the first day
of June in each year.
After being so determined, one-half of such costs
shall be allocated and paid to the respective coun-
ties by the state board of allotments and appeal
from the appropriation made by the state for the
purpose of carrying out the provisions of this ar-
ticle. The other half of said county administrative
expenses shall be paid by the respective counties.
The state board of allotments and appeal shall, on
or before the first day of June in each year, notify
the board of county commissioners in each county
as to the amount of administrative expenses such
county is required to provide, and upon receipt of
such notice it shall be mandatory upon each
county that taxes shall be levied within said county
to provide for the payment of such part of such
county's administrative expenses. (1937, c. 288,
s. 23.)
§ 5018(24). Transfer of state and federal funds
to the counties. — The state old age assistance fund
shall be drawn out on the warrant of the state au-
ditor, issued upon order of the state board, evi-
denced by the signature of the commissioner of
welfare. Quarterly, and oftener, if in the sound
judgment of the state board it may be necessary,
the state board shall transfer to the several coun-
ties such part of the county allotment as may be
necessary for disbursement in such county, in con-
nection with county-raised funds, for a reasonable
period. Before transferring said funds the state
board may, in its discretion, require that the county
shall certify, through its auditor or fiscal agent,
that sufficient county funds are on hand to pay
the county quota of disbursement corresponding
to the amount of state funds to be so transferred.
The state board of allotments and appeal is au-
thorized, in its discretion, to transfer to any county
for the first quarter in any fiscal year an amount
sufficient to pay in full the awards approved in
such county, one-fourth of said amount being ad-
vanced to the county in anticipation of the col-
lection of taxes. Such amount so advanced shall
be deducted from allotments thereafter to be made
to such county within the fiscal year.
The funds so transferred shall go into the
county old age assistance fund, and be subject to
all the provisions of the Local Government Act
as to custody and depository protection; and the
state board may require such additional protection
to such funds as they may deem proper.
When in the judgment of the state board the
disbursement of funds in the counties to recipients
entitled to assistance is being unduly delayed, or
the payments to such recipients jeopardized, the
state board may require, as a condition for the al-
lotment or transmission of any funds to the county
for disbursement, that such awards shall be
promptly paid, and may withhold the funds from
such counties until satisfied that the awards are
being paid with promptness and certainty. When
54]
§ 5018(25)
BOARD OF CHARITIES
§ 5018(33)
in its judgment the public interest may require
and the funds collected in the county for disburse-
ment hereunder may be better protected, and
greater promptness and certainty may he secured
in payment of awards to recipients entitled to re-
ceive same, the state board may demand and re-
quire that the funds raised by taxation in any
county be transmitted to the treasurer of the state,
subject to disbursement under such rules and reg-
ulations as the state board may adopt. Immedi-
ately upon notice to the board of county commis-
sioners of the county affected, and to the officials
of the said county having any such funds in cus-
tody, such board of county commissioners and of-
ficials shall immediately transfer all of such funds
and pay over the same to the state treasurer for
disbursement, under the rules and regulations
aforesaid. (1937, c. 288, s. 24.)
§ 5018(25). Accounts and reports from county
officers. — The boards of county commissioners
shall cause proper accounts to be kept of the re-
ceipts and disbursements under this article, and
shall make a quarterly report to the state board
in detail, showing such receipts and the persons!
to whom disbursements have been made, and the
amount thereof. Such reports may be required by
the state board as often as may be deemed neces-
sary. The accounts shall at all times be open to
inspection by the state board and its authorized
auditors, supervisors and deputies. (1937, c. 288,
s. 25.)
§ 5018(26). Further powers and duties of state
board. — The state board is authorized and directed
to make such reports as may be required by the
federal government under the Social Security Act;
to keep the funds received from the federal gov-
ernment in such manner and in such account, and
cause the same to be disbursed as may be required
by such federal administrative authority, notwith-
standing any provisions hereof; and the provisions
of this article with respect to the handling, dis-
bursement of federal funds, where contrary to the
rules and regulations of federal authority, shall be
deemed directory only, so that such rules and reg-
ulations shall prevail; but otherwise they shall be
mandatory. (1937, c. 288, s. 26.)
§ 5018(27). Fraudulent acts made misdemean-
or.— Whoever knowingly obtains, or attempts to
obtain, or aids or abets any person to obtain, by
means of a wilfully false statement or representa-
tion or by impersonation, or other fraudulent de-
vice, assistance to which he is not entitled, or as-
sistance greater than that to which he is justly
entitled; and whoever aids or abets in buying or
m any way disposing of the property, either real
or personal, of a recipient of assistance with the
intent to defeat the purposes of this article, shall
be guilty of a misdemeanor, and upon conviction
thereof shall be fined or imprisoned, or both, at
the discretion of the court. (1937, c. 288, s. 27.)
§ 5018(28). Limitations of article.— All assist-
ance granted under this article shall be deemed to
be granted and to be held subject to the provi-
sions of any amending or repealing act that may
hereafter be passed, and no recipient shall have
any claim for compensation, or otherwise, by rea-
son of his assistance being affected in any way by
any amending or repealing act. (1937, c. 288, s.
28.)
§ 5018(29). Short title.— This title may be cited
as the "Old Age Assistance Act." (1937, c. 288,
s. 30.)
TITLE II
Aid to Dependent Children
§ 5018(30). Establishment of relief.— The care
and relief of dependent children who are in need
and who are unable to provide for themselves is a
legitimate obligation of government which cannot
be ignored or avoided without injustice to such
persons and serious detriment to the purposes of
organized society. Such care and relief is hereby
declared to be a matter of state concern and nec-
essary to promote the public health and welfare.
In order to provide such care and relief at public
expense, to the extent that the same may be
proper, with due regard to the revenues which the
state may equitably enjoy, and with due regard for
other necessary objects of public expenditure, a
statewide system of aid to dependent children is
hereby established, to operate uniformly through-
out the state and in every county thereof, and
with due regard to the varying living conditions
and the financial, physical, and other conditions
of the recipient of such relief, more particularly
dealt with in this article. The provisions of this
article are mandatory on the state, and each and
every county thereof, and whenever the levy of
any tax is required or directed herein, it shall be
understood that the said tax is levied for a special
purpose; and full authority is hereby given to the
boards of county commissioners of the several
icounties to levy, impose, and collect the taxes
herein required for the special purpose of aid to
dependent children as defined and provided for in
this article. (1937, c. 288, s. 31.)
§ 5018(31). Definitions.— As used in this arti-
cle, "state board" shall mean the state board of
charities and public welfare, established by chap-
ter eighty-eight, Consolidated Statutes of North
Carolina.
"The county board of welfare" shall mean the
county board of charities and public welfare of
each of the several counties, as now established
by law, subject to such modifications as may be
made by law.
"Applicant" shall mean any person who has ap-
plied for relief for dependent children under this
title.
"Recipient" shall mean any person who has re-
ceived assistance for dependent children under the
provisions of this title.
"Assistance" as used under this title means the
money payments for aid to dependent children.
(1937, c. 288, s. 32.)
§ 5018(32). Acceptance of federal grants, — The
provisions of the Federal Social Security Act, re-
lating to grants in aid to the state for aid to de-
pendent children, and the benefits thereunder, are
hereby accepted and adopted, and the provisions
of this article shall be liberally construed in rela-
tion to the said Federal Social Security Act, so
that the intent to comply therewith shall be made
effectual. (1937, c. 288, s. 33.)
§ 5018(33). Amount of relief. — The maximum
amount to be allowed per month under this arti-
155 1
§ 5018(34)
BOARD OF CHARITIES
§ 5018(41)
cle shall not exceed eighteen dollars ($18.00) for
one child and twelve dollars ($12.00) additional
per month for each of the other dependent chil-
dren in the home eligible to assistance under this
article: Provided, the total amount shall not ex-
ceed sixy-five dollars ($05.00), except in extraor-
dinary circumstances in which it appears to the
satisfaction of the state board that a total of
sixty-five dollars ($65.00) per month would be in-
sufficient to secure the purpose above set forth.
(1937, c. 288, s. 34.)
§ 5018(34). Dependent children defined. — The
term "dependent child" as used in this article
shall mean a child under sixteen years of age who
is living with his or her father, mother, grand-
father, grandmother, brother, sister, stepfather,
stepmother, stepbrother, stepsister, uncle or aunt,
in a place of residence maintained by one or more
of such relatives as his or their own home; who
has resided in the state of North Carolina for one
year immediately preceding the application for
aid; or who was born within the state within one
year immediately preceding the application; if the
mother has resided in the state for one year im-
mediately preceding the birth, and who has been
deprived of parental support or care by reason of
the death, physical or mental incapacity or con-
tinued absence from the home of a parent, and
who has no adequate means of support: Pro-
vided, that in all cases of desertion every effort
shall be made in compliance with provisions of
Consolidated Statutes four thousand four hundred
forty-seven through four thousand four hundred
fifty (a), inclusive, to apprehend the parent and
charge him with the support of the said child.
(1937, c. 288, s. 35.)
§ 5018(35). Eligibility. — To be eligible to re-
ceive aid for a dependent child or children as
hereinbefore defined in section 5018(34), the said
father, mother, grandfather, grandmother, brother,
sister, stepfather, stepmother, stepbrother, step-
sister, uncle, or aunt, in whose own home the said
dependent child resides shall maintain a safe and
proper home for himself, or themselves, and said
dependent child or children. (1937, c. 288, s. 36.)
§ 5018(36). State aid to dependent children
fund. — A fund shall be created to be known as
"The State Aid to Dependent Children Fund."
This fund shall be created by appropriations made
by the state from its ordinary revenues and such
grants as may be made for aid to dependent chil-
dren under the Federal Social Security Act. Said
fund shall be used exclusively for the relief of de-
pendent children coming within the eligibility
provisions of this title and the cost of administra-
tion of the same. The appropriations to be made
by the state for such purpose shall be supple-
mented by the amount provided under the Fed-
eral Social Security Act for aid to dependent chil-
dren and such further amount as the state may
appropriate for the administration of this article.
From said fund there shall be paid as hereinafter
provided two-thirds of the benefit payments to
dependent children in accordance with the provi-
sions hereof, the other one-third of said payments
shall, subject to the provisions of section 5018(60),
be provided by the several counties of the state
as hereinafter required. The cost of administer-
ing the provisions of this title shall be, in part,
paid from said funds in accordance with section
5018(53).
In the event that the Federal Social Security
Act is amended by providing for a larger percent-
age of contributions to said fund, the provisions
herein made shall be construed to accept such ad-
ditional grants, and the amounts to be provided
for aid to dependent children by state and coun-
ties shall be adjusted proportionately. (1937, c.
288, s. 37.)
§ 5018(37). State appropriation. — At its pres-
ent session, and biennially thereafter, the general
assembly shall appropriate out of its ordinary rev-
enues, for the use of such fund, such amount as
shall be reasonably necessary to carry out the pro-
visions of this article, and provide relief to the
dependent children coming within the eligibility
provisions herein set out, to such an extent as
may be proper upon due consideration of the abil-
ity of the state to produce sufficient revenues,
and with due regard to other necessary objects of
public expenditure. (1937, c. 288, s. 38.)
§ 5018(38). County fund. — Annually, at the
time other taxes are levied in each of the several
counties of the state, there shall be levied and im-
posed a tax sufficient to raise such an amount as
shall be found necessary, in the manner herein-
after provided, to supplement the state and fed-
eral funds available for expenditure in said county
for aid to dependent children. The amount so
ascertained shall be an obligation of the county,
and the taxes imposed shall be collectible as other
taxes. (1937, c. 288, s. 39.)
§ 5018(39). Appropriations not to lapse. — No
appropriation made for the purpose of this article
shall lapse or revert; but the unexpended balances
may be considered in the making of further ap-
propriations. Any proceeds of county taxation
for the purposes of this article remaining unex-
pended shall be taken into account in determin-
ing the amount to be raised by taxation during the
ensuing year, but shall not be used for any pur-
pose not authorized by this article. (1937, c. 288,
s. 40.)
§ 5018(40). Custody and receipt of funds. —
The treasurer of the state of North Carolina is
hereby made ex officio treasurer of the state aid
to dependent children fund herein established, in-
cluding therein such grants in aid to dependent
children as may be received from the federal gov-
ernment for administration and distribution in
this state; and the said treasurer is hereby desig-
nated as the proper officer to receive grants in aid
from the federal government. The treasurer shall
keep the funds in a separate account, to be known
as the state aid to dependent children fund, and
shall be responsible therefor on his official bond;
and the said funds shall be protected by proper
depository security as other state funds. The
said fund shall be drawn upon and disbursed as
hereinafter provided. (1937, c. 288, s. 41.)
§ 5018(41). General powers and duties of de-
partment of charities and public welfare. — The
powers and duties of the state board of charities
and public welfare established under Article XI,
section seven, of the Constitution of North Caro-
lina, and chapter eighty-eight of the Consolidated
Statutes of North Carolina, and of the office of
156 ]
§ 5018(42)
BOARD OF CHARITIES
§ 5018(44)
commissioner of welfare established thereunder,
are not hereby abridged. The powers and duties
herein given shall be in addition to those hereto-
fore exercised under existing law; and the state
board of charities and public welfare, through the
commissioner of welfare as the executive head of
the department, is hereby empowered to organize
the department into such bureaus and divisions as
may be deemed advisable, not inconsistent with
the provisions of this article, in order that the
work of the entire department shall be co-ordi-
nated on an efficiency basis and duplication of ef-
fort may be avoided. (1937, c. 288, s. 42.)
§ 5018(42). Certain powers and duties of state
board of charities and public welfare. — The state
board shall:
(a) Supervise the administration of assistance
to dependent children under this article by the
county boards;
(b) Make such rules and regulations and take
such action as may be necessary or desirable for
carrying out the provisions of this article. All
rules and regulations made by the state board
shall be binding on the counties and shall be com-
plied with by the respective boards of county
commissioners and county boards of welfare;
(c) Establish minimum standards for personnel
employed by the state and county boards in the
administration of this article and make necessary
rules and regulations to maintain such standards;
(d) Prescribe the form of and print and supply
to the county boards and agencies such forms as
it may deem necessary and advisable;
(e) Co-operate with the federal government in
matters of mutual concern pertaining to assist-
ance to dependent children, including the adoption
of such methods of administration as are found
by the federal government to be necessary for the
efficient operation of the plan for such assistance;
(f) Make such reports, in such form and con-
taining such information, as the federal govern-
ment may from time to time require, and comply
with such provisions as the federal government
may from time to time find necessary to assure
the correctness and verification of such reports;
(g) Publish an annual report and such interim
reports as may be necessary. (1937, c. 288, s. 43.)
§ 5018(43). Certain powers and duties of local
boards — county welfare boards. — The county
boards of welfare shall perform the duties herein
required of them with relation to the administra-
tion of this article in the several counties, under
the supervision and direction of the state board,
and in accordance with the rules and regulations
prescribed by said state board.
County boards of welfare shall:
(a) Report to the state board at such times and
in such manner and form as the state board may
from time to time direct;
(b) Submit to the state board the information
required in this article preliminary to determina-
tion of the county's quota of funds and the deter-
mination of the amount required to be raised by
taxation, together with its estimate and support-
ing data, setting forth the amount of money
needed to carry out the provisions of this article;
also submit to the board of county commissioners
a duplicate of the estimate and supporting data
furnished by it to the state board. Make and re-
port to the state board and to the county board
of commissioners such investigation as may be
required in order that the said state board and
boards of county commissioners may be fully in-
formed as to the assistance required by dependent
children coming within the eligibility provisions
of this article; and may have such other informa-
tion as may be required for proper determination
upon any matter coming before the said boards;
(c) Perform any other duties required of them
under this article or by proper rules and regula-
tions made by the state board under authority
thereof. (1937, c. 288, s. 44.)
§ 5018(44). Application for assistance; deter-
mination thereon. — Applications for assistance un-
der this article shall be made to the county wel-
fare board of the county in which the applicant
resides. Such application shall be in writing and
in duplicate, in compliance with the rules and reg-
ulations established by the state board, which is
required to furnish forms for such applications,
and shall be verified by the oath of the applicant.
Where the applicant is unable to present his ap-
plication in writing by reason of illiteracy or other
cause, the application shall be reduced to writing
and filed in duplicate, on such forms as may be
supplied by the state board, or substantially in
agreement therewith. The county board of wel-
fare, and the county welfare officer, shall render
to applicants for assistance under this article such
aid and assistance in the preparation of the appli-
cations as may be necessary. One copy of the
application shall be forwarded to the state board.
Whenever a county board of welfare receives an
application for assistance under this article, an in-
vestigation and record shall promptly be made of
the circumstances of the children for whom appli-
cation is made, in order to ascertain the facts sup-
porting the application, and in order to obtain
such other information as may be required by the
rules of the state board. In the making of such
investigation, the county welfare board and the
county welfare officer shall make diligent investi-
gation, and record promptly all the information
which it is reasonably possible to obtain with re-
spect to such application.
Upon the completion of the investigation the
county board of welfare shall, upon due consid-
eration, determine whether the applicant is eligi-
ble for assistance under the provisions of this ar-
ticle, and shall determine the amount of such as-
sistance and the date on which it shall begin, but
such award shall in no case exceed eighteen dol-
lars ($18.00) for one child and twelve dollars
($12.00) additional per month for each of the
other dependent children in the home eligible to
assistance under this article: Provided, the total
amount shall not exceed sixty-five dollars ($65.00)
except in extraordinary circumstances in which it
appears to the satisfaction of the state board that
a total of sixty-five dollars ($65.00) per month
would be insufficient to secure the purposes above
set forth. Such award so made when effective
shall thereafter be paid in advance monthly to the
applicant, disbursement being made in the same
manner and under the same procedure as in the
case of other county funds.
The county board of welfare shall promptly no-
tify by mail each applicant of its action disallow-
ing the application for granting assistance, stat-
[157]
§ 5018(45)
BOARD OF CHARITIES
§ 5018(49)
ing, in case award is made, the amount of the
award and when assistance shall be paid. A copy
of such notice shall be immediately forwarded to
the board of county commissioners and a dupli-
cate copy forwarded to the state board of allot-
ments and appeal. (1937, c. 288, s. 45.)
§ 5018(45). Action by county commissioners. —
The board of county commissioners, in the event
that they shall be of the opinion that any award
made by the county board of welfare should be
reconsidered and reviewed by them, shall have
the right to review such award. In case of such
action by the board of county commissioners, no-
tice shall be given to the applicant fixing the time
and place at which such reconsideration will be
held. In the event the board of county commis-
sioners deem that any award should be in any re-
spect changed, an order shall be made thereon
accordingly and notice thereof given to the appli-
cant and a copy sent to the county board of wel-
fare and the state board of allotments and appeal.
(1937, c. 288, s. 46.)
§ 5018(46). Assistance not assignable. — The
assistance granted under this article shall not be
transferable or assignable at law or in equity; and
none of the money paid or payable under this arti-
cle shall be subject to execution, levy, attachment,
garnishment, or other legal process, or to the op-
eration of any bankruptcy or insolvency law.
(1937, c. 288, s. 47.)
§ 5018(47). State board of allotments and ap-
peal. — For the purpose of making allotment of
state and federal funds to the several counties,
and of giving to applicants appealing from the
county boards a fair hearing and determination
upon such applications and appeal, the state board
of allotments and appeal, created under section
5018(18), shall as an agency of the state board
have complete and final jurisdiction. If an appli-
cation is not acted upon by the county welfare
board within thirty days or is denied in whole or
in part, or if any award of assistance is modified
or canceled under any provisions of this article,
the applicant or recipient may appeal to the board
of allotments and appeal in the manner and form
prescribed by the said board of allotments and ap-
peal. The board of allotments and appeal shall,
upon receipt of such an appeal, give the applicant
or recipient and the iboard of county commission-
ers and county board of welfare reasonable notice
and opportunity for a fair hearing. Upon such
hearing the applicant or recipient shall have an
opportunity of presenting his claim in full to the
board upon such evidence as may be pertinent or
proper; and the board of allotments and appeal
shall diligently inquire into the matter, and shall
approve or disapprove or modify the action of the
county board of welfare (and) the board of county
commissioners, as in the judgment of the board
of allotments and appeal may be just and proper.
Upon any appeal from the board of county com-
missioners, it shall be the duty of such board to
forward to the state iboard of allotments and ap-
peal a certified copy of the order refusing assist-
ance or granting the same, with such information,
in brief, as may bear upon the application and the
action of the board of commissioners, and such
papers and documents or other matter as may be
required under the rules of the board of allot-
ments and appeal, or under its order in the par-
ticular matter.
When the state board of allotments and appeal
shall have made its final decision upon the matter,
notice thereof shall be given to the applicant or
recipient and to the board of county commission-
ers and the county board of welfare. The decision
of the state board of allotments and appeal shall
be final.
The state iboard of allotments and appeal may
also on notice to the board of county commission-
ers and county board of welfare, upon its own
motion, review any decision of the board of county
commissioners or county board of welfare and
may consider any application upon which a deci-
sion has not been made within thirty days. The
state board of allotments and appeal may make
such additional investigation as it may deem nec-
essary in all cases and make such decision there-
upon as in its opinion is justified and in conform-
ity with the provisions of this article. Applicants,
or recipients, affected by such decision of the state
board of allotments and appeal shall, upon re-
quest, ibe given reasonable notice and opportunity
for a fair hearing by the board of allotments and
appeal. All decisions of the state board of allot-
ments and appeal shall be final and shall be bind-
ing upon the county involved, and shall be com-
plied with by the board of county commissioners
and the county board of welfare.
The state board may authorize hearings of ap-
peals in any county by other representatives se-
lected (by said boards, subject to final determina-
tion by the state board of allotments and appeal.
(1937, c. 288, s. 48.)
§ 5018(48). Periodic reconsideration and changes
in amount of assistance. — All assistance grants
made under this article shall be reconsidered as
frequently as may be required iby the rules of the
state board. It shall be the duty of the county
welfare board, with the assistance of the county
welfare officer, to keep fully advised as to ques-
tions concerning aid to dependent children and
the propriety and necessity of the continuance
thereof to recipients and as to such changed con-
ditions relating to recipients as may affect the
necessity for such assistance or the amount
thereof.
Where changes have occurred in the condition
of any recipient requiring a modification or can-
cellation of an award, the county board of wel-
fare is authorized and empowered to make such
changes as the facts and circumstances may jus-
tify and in accordance with the provisions of this
law. Prompt notice of such action shall be given
to the recipient and a copy of such notice shall be
sent to the state board and iboard of county com-
missioners. Such action on the part of the county
board shall be subject to review by the state board
as provided in cases of original awards, and the
recipient shall have the right to appeal therefrom
to the state board of allotments and appeal as in
cases of original awards. (1937, c. 288, s. 49.)
§ 5018(49). Removal to another county. — Any
resident who moves to another county and contin-
ues to have such dependent children in custody in
this state shall be entitled to receive assistance in
[158]
§ 5018(50)
BOARD OF CHARITIES
§ 5018(52)
the county to which he has moved, and the board
of county commissioners of the county from which
he has moved shall transfer all necessary records
relating to the recipient to the county board of
commissioners of the county to which he has
moved. The county from which the recipient
moves shall pay the assistance for a period of
three months following such removal, and there-
after assistance shall be paid by the county to
which such recipient has moved.
In the event that the applicant and the depend-
ent children are residents of this state and have
not lived in any county of the state for the twelve
months' period necessary to acquire a settlement
therein, nevertheless, if otherwise eligible, such
residents shall be allowed assistance upon applica-
tion to the board of welfare of the county in which
he has been domiciled, in the same manner as as-
sistance is allowed to persons in the county who
have acquired a settlement therein; but such al-
lowance of assistance shall be paid entirely out of
the state aid to dependent children fund, without
participation of the county therein; and in allocat-
ing funds to the county for the purpose of dis-
bursement to recipients under this article, the state
board of allotments and appeal is authorized and
empowered to reserve out of such allocations and
to transmit to the counties concerned a sufficient
amount of the state fund to provide for disburse-
ment to such residents who have not acquired set-
tlement in any county. (1937, c. 288, s. 50.)
§ 5018(50). Procedure preliminary to allotments
and county taxation; investigation and report. — It
shall be the duty of the county welfare boards to
make diligent investigation within the county and
obtain and record statistical and other information
concerning dependent children in the county en-
titled to assistance under this article, and to keep
such information compiled in convenient acces-
sible form. Therefrom they shall, annually, on
or before the first day of June, one thousand nine-
hundred thirty-seven, and thereafter on or before
the first day of May, compile and make a report
to the board of county commissioners, for their
better information and guidance, which report
shall contain a concise statement or estimate of
the total amount necessary to be expended within
the county to carry out the provisions of this ar-
ticle for the next ensuing fiscal year, accompanied
iby such supporting data as the state board of al-
lotments and appeal may require. Such reports
shall be made on forms furnished by the state
board or in compliance with the rules and regula-
tions of said state board. A copy thereof shall be
immediately forwarded to the state board.
Upon the information so furnished, and such
other information as may be available, or may be
obtained upon such further investigation as the
board of commissioners may see proper to make,
the board of commissioners shall make a careful
estimate of the amount necessary to he expended
within the county for the purpose of this article
for the ensuing fiscal year, and, separately stated,
the amount necessary to be raised by county taxa-
tion. The board of county commissioners shall,
on or before the first day of April, make a report
to the state board of allotments and appeal, which
report shall contain the said estimates, with sup-
porting data, in such form and detail as the board
of allotments and appeal may require. (1937, c.
288, s. 51.)
§ 5018(51). Allocation of funds. — As soon as
may be practicable after receiving the said reports,
and before the time for the annual levy of taxes
in the respective counties, the state board of allot-
ments and appeal shall proceed to ascertain and
determine the amount of state and federal funds
available for disbursement in the counties for the
purposes of this article for the next ensuing fiscal
year. The board shall, at the same time, deter-
mine the amounts to be raised in each of the re-
spective counties by taxation to supplement the
state and federal funds allotted to such county.
The allotment of state and federal funds to any
county shall not exceed twice the amount to be
raised in said county by local taxation, except as
provided in section 5018(60).
The determination of such amount by the board
of allotments and appeal shall be final and binding
upon the several counties respectively, and shall
be a part of the county budget. The county com-
missioners shall, at the time of levying other taxes,
levy and impose upon all the taxable subjects
within the county a tax sufficient to produce such
amount; and the same shall be collected as other
taxes.
The proceeds of such taxes shall be kept in a
separate fund in the county treasury, and shall be
subject to the provisions of the Local Government
Act with respect to depository security and con-
trol, and shall be used only for the purposes of this
article. It shall be the duty of the board of allot-
ments and appeal to inquire into the condition of
the said fund from time to time and to require that
such protection be afforded the funds as occasion
may demand. The funds shall be disbursed for
the purposes of this article according to the man-
ner and procedure authorized for disbursement of
county funds, but only to persons whose eligibility
or right to receive the same has been approved.
(1937, c. 288, s. 52.)
§ 5018(52). Administration expenses. — From
the appropriation made by the state for aid to de-
pendent children, the state board of allotments and
appeal shall, with the approval of the director of
the budget, allocate and expend such part thereof
as shall be required to pay the costs of adminis-
tration of this article by the state 'board of chari-
ties and public welfare as necessarily incurred by
said board in its own administrative and super-
visory duties under the provisions of this article,
including the administrative expenses necessarily
incurred by its agency, the state board of allot-
ments and appeal.
The state board of allotments and appeal shall
annually allocate to the several counties of the
state, in accordance with the total amount of bene-
fit payments to be paid in each county for aid to
dependent children therein, the sum provided by
the federal government under the Social Security
Act for payment of administrative expenses. Any
amounts in excess of said allotments to the sev-
eral counties, which are necessary to the proper
administration of this article by the several coun-
ties, shall be determined by the state iboard of al-
lotments and appeal upon budgets submitted to
said board by the county welfare boards in each
159 ]
§ 5018(53)
BOARD OF CHARITIES
§ 5018(59)
county. Said determination shall be made on or
before the first day of June in each year.
After being so determined, one-half of such costs
shall be allocated and paid to the resipective coun-
ties by the state board of allotments and appeal
from the appropriation made by the state for the
purpose of carrying out the provisions of this ar-
ticle. The other half of said county administra-
tive expenses shall be paid by the respective coun-
ties. The state board of allotments and appeal
shall, on or before the first day of June in each
year, notify the 'board of county commissioners in
each county as to the amount of administrative
expenses such county is required to provide, and
upon receipt of such notice, it shall be mandatory
upon each county that taxes shall ibe levied within
said county to provide for the payments of such
part of such county's administrative expenses.
(1937, c. 288, s. 53, c. 405.)
§ 5018(53). Transfer of state and federal funds
to the counties. — The aid to dependent children
fund shall be drawn out on the warrant of the
state auditor, issued upon order of the state board,
evidenced by the signature of the commissioner of
welfare. Quarterly, and oftener, if in the sound
judgment of the state board it may be necessary,
the state board shall transfer to the several coun-
ties such part of the county allotment as may be
necessary for disbursement in such county, in con-
nection with county-raised funds for a reasonable
period. Before transferring said funds the state
board may, in its discretion, require that the
county shall certify, through its auditor or fiscal
agent, that sufficient county funds are on hand to
pay the county quota of disbursement correspond-
ing to the amount of state funds to be so trans-
ferred. The state iboard of allotments and appeal
is authorized, in its discretion, to transfer to any
county for the first quarter in any fiscal year an
amount sufficient to pay in full the awards ap-
proved in such county, one-third of said amount
being advanced to the county in anticipation of the
collection of taxes. Such amount so advanced
shall be deducted from allotments thereafter to be
made to such county within the fiscal year.
The funds so transferred shall go into the county
aid to dependent children fund, and be subject to
all the provisions of the Local Government Act as
to custody and depository protection; and the state
board may require such additional protection to
such funds as they may deem proper.
When in the judgment of the state board the
•disbursement of funds in the counties to recipients
entitled to assistance is being unduly delayed, or
the payments to such recipients jeopardized, the
state board may require, as a condition for the al-
lotment or transmission of any funds to the county
for disbursement, that such awards shall be
promptly paid, and may withhold the funds from
such counties until satisfied that the awards are
being paid with promptness and certainty. When
in its judgment the public interest may require and
the funds collected in the county for disbursement
hereunder may be better protected, and greater
promptness and certainty may be secured in pay-
ment of awards to recipients entitled to receive
same, the state board may demand and require
that the funds raised by taxation in any county
be transmitted to the treasurer of the state, sub-
[1
ject to disbursement under such rules and regula-
tions as the state board may adopt. Immediately
upon notice to the board of county commissioners
of the county affected, and to the officials of the
said county having any such funds in custody, such
board of county commissioners and officials shall
immediately transfer all of such funds and pay
over the same to the state treasurer for disburse-
ment, under the rules and regulations aforesaid.
(1937, c. 288, s. 54.)
§ 5018(54). Accounts and reports from county
officers. — The boards of county commissioners
shall cause proper accounts to be kept of the re-
ceipts and disbursements under this article, and
shall make a quarterly report to the state board in
detail, showing such receipts and the persons to
whom disbursements have been made, and the
amount thereof. Such reports may foe required by
the state board as often as may be deemed neces-
sary. The accounts shall at all times be open to
inspection iby the state board and its authorized
auditors, supervisors, and deputies. (1937, c. 288,
s. 55.)
§ 5018(55). Further powers and duties of state
board. — The state board is authorized and directed
to make such reports as may be required by the
federal government under the Social Security Act;
to keep the funds received from the federal gov-
ernment in such manner and in such account, and
cause the same to be disbursed as may be required
by such federal administrative authority, notwith-
standing any provisions hereof; and the provisions
of this article with respect to the handling, dis-
bursement of federal funds, where contrary to the
rules and regulations of federal authority, shall be
deemed directory only, so that such rules and reg-
ulations shall prevail; but otherwise they shall be
mandatory. (1937, c. 288, s. 56.)
§ 5018(56). Fraudulent acts made misdemeanor.
— Whoever knowingly obtains, or attempts to ob-
tain, or aids or abets any person to obtain by
means of wilfully false statement or representation
or by impersonation, or other fraudulent device,
assistance to which he is not entitled, or assistance
greater than that to which he is justly entitled,
shall be guilty of a misdemeanor, and, upon con-
viction thereof, shall be fined or imprisoned, or
both, at the discretion of the court. (1937, c. 288,
s. 57.)
§ 5018(57). Limitations of article. — All assist-
ance granted under this article shall be deemed to
be granted and to be held subject to the provisions
of any amending or repealing act that may here-
after be passed, and no recipient shall have any
claim for compensation, or otherwise, by reason of
his assistance being affected in any way by any
amending or repealing act. (1937, c. 288, s. 58.)
§ 5018(58). Short title.— This title may be cited
as the "Aid to Dependent Children Act." (1937, c.
288, s. 60.)
§ 5018(59). Equalizing fund. — The state board
of allotments and appeal is authorized and directed
to set apart and reserve out of the appropriation
authorized to be made by the state under section
5018(8), relating to old age assistance, and under
section 5018(38), relating to assistance to depend-
60 1
§ 5018(60)
BOARD OF CHARITIES
§ 5018(65)
ent children, such an amount of said funds appro-
priated by the state to the respective funds as shall
be found by the state board of allotments and ap-
peal to be necessary for the purpose of equalizing
the burden of taxation in the several counties of
the state, and the benefits received by the recip-
ients of awards under this article, and such amount
shall be expended and disbursed solely for the use
and benefit of needy aged persons and dependent
children coming within the eligibility provisions
of this article. Said amount shall be distributed to
the counties according to the needs therein in
conformity with the rules and regulations adopted
by the state hoard of allotments and appeal, pro-
ducing, as far as practicable, a just and fair dis-
tribution thereof: Provided, however, that no
county shall be entitled to share in such equaliz-
ing fund unless the rate of tax necessary to be
levied in such county for the purposes of this ar-
ticle is in excess of ten cents on the one hundred
dollar valuation of taxable property therein: Pro-
vided further, the state board of allotments and
appeal shall not allot to any county from such
equalizing fund more than three-fourths of the
cost to such county in excess of the amount pro-
duced in such county by a levy and collection of
a tax rate of ten cents on the one hundred dollar
valuation of taxable property therein.
After determining the amount to be allotted to
any county from such equalizing fund, the state
board of allotments and appeal shall determine the
amount to be raised in such county by taxation to
supplement the state and federal funds allotted to
said county as in this article otherwise provided,
and it shall be mandatory upon the boards of
county commissioners in the several counties to
annually levy taxes in accordance therewith.
(1937, c. 288, s. 62.)
General Provisions
§ 5018(60). Organization; appointment of agen-
cies; employment. — The state board shall have op-
portunity to set up such organization as may in its
judgment be deemed proper to secure the economic
and efficient administration of this article, not in-
consistent with other provisions Hereof. It may
delegate such powers as may be lawfully delegated
to such persons and agencies as will expedite the
prompt execution of the duties of the board in
ministerial matters; may appoint auditors, ac-
countants, supervisors, and deputies, and other
agents to aid it in its supervisory powers and to
secure the proper care of the funds and adminis-
tration of the law; and may employ clerical and
other assistance. Except as herein otherwise pro-
vided, the salaries and compensation paid to the
personnel shall be fixed by the budget commission,
and the number of salaried persons and employees
shall be subject to the approval of the budget com-
mission. The organization shall likewise be such
as to meet the approval of the Federal Social Se-
curity Authority in charge of the old age assist-
ance.
The board is further authorized to pay ordinary
expenses incident to administration, and to fix and
pay per diem compensation to members of boards
to whom new duties have been given and of whom
additional service is required under this article.
Such compensation shall be subject to the approval
of the director of the budget. (1937, c. 288, s. 63.)
§ 5018(61). County funds; how provided. —
Wherever in this article provisions are made re-
quiring the several counties to annually levy or
annually levy and collect taxes to provide for such
amounts as such counties are required to pay for
old age assistance, or for aid to dependent chil-
dren, or for the cost of administration, such provi-
sions shall be construed to mean that such coun-
ties may provide the sums to be raised by them
from any sources of county income or revenue (in-
cluding borrowing in anticipation of collection of
taxes) which may be available for use for such
purposes by such counties. (1937, c. 288, s. 63^.)
§ 5018(62). Termination of federal aid. — If for
any reason there should be a termination of fed-
eral aid as anticipated in this article, then and in
that event this article shall be ipso facto repealed
and rendered null and void: Provided, however,
such repeal shall not ibecome or be in force unless
and until the governor of the state of North Caro-
lina has issued a proclamation, duly attested by the
secretary of state of the state of North Carolina,
to the effect that there has been a termination of
such federal aid. In the event that this article
should be ipso facto repealed as herein provided,
the state funds on hand shall be converted into the
general fund of the state for such use as may be
authorized by the director of the budget, and the
county funds accumulated by the provisions of this
article in the respective counties of the state shall
'be converted into the general fund of such coun-
ties for such use as may be authorized by the
county commissioners. (1937, c. 288, s. 63>4-A.)
Art. 4. Home Boarding Fund
§ 5018(63). State boarding home fund created.
— The general assembly of North Carolina at this
session shall make an appropriation to the state
board of charities and public welfare for the pur-
pose of providing aid for needy and dependent
children and paying their necessary subsistence in
boarding homes. The state board of charities and
public welfare, from said appropriation, shall main-
tain a fund to be known and designated as the
state boarding home fund, from which said fund
there shall be paid, in accordance with the rules
and regulations adopted by the state board of
charities and public welfare, the amount necessary
to provide homes for the needy and dependent
children coming within the eligibility provisions
of this article. (1937, c. 135, s. 1.)
§ 5018(64). No benefits to children otherwise
provided for. — No needy or dependent child shall
be eligible for the benefits provided in this article
if such child is eligible for benefits provided by the
act of the general assembly of one thousand nine
hundred and thirty-seven, known as the "Aid to
Dependent Children Act." (1937, c. 135, s. 2.)
§ 5018(65). Administration of fund by state
board of charities and public welfare. — From the
fund so provided, the state -board of charities and
public welfare may provide for payment of the
necessary costs of keeping needy and dependent
children in suitable boarding homes, including the
children committed to the state board of charities
and public welfare under the provisions of Consol-
N. C. Supp.— 11
161 ]
§ 5030
CHILD WELFARE
§ 5038(5)
idated Statutes, section five thousand and forty-
seven, provided such children so committed to
such state iboard of charities and public welfare
are ineligible for assistance under the "Aid to De-
pendent Children Act" hereinbefore referred to.
Said fund shall be expended under the rules and
regulations adopted by the state board of charities
and public welfare. (1937, c. 135, s. 3.)
CHAPTER 89
CEMETERIES
Art. 4. Removal of Graves
§ 5030. Removal to enlarge or erect churches,
etc. — In those cases where any church authorities
desire to enlarge a church building and/or erect
a new church and/or parish house and/or parson-
age and where it becomes necessary or expedient
to remove certain graves in order to secure the
necessary room for such enlargement, it shall be
lawful for such church authorities after thirty days'
notice to the relatives of deceased, if any are
known, and if none are known, then after notice
posted at the church door for a like time, to re-
move such graves to a suitable plat in the church
cemetery, or in another cemetery, due care being
taken to protect tombstones and replace them
properly, so as to leave the graves in as good con-
dition as before removal.
(1937, c. 3.)
Editor's Note.— The 193? amendment inserted the words
"and/or erect a new church and/or parish house
and/or parsonage" in the first sentence. The rest of the
section, not being affected by the amendment, is not set
out.
CHAPTER 90
CHILD WELFARE
Art. 1. Child Labor Regulations
§§ 5032-5034: Repealed by Public Laws 1937,
c. 317, s. 22.
§ 5038(1). Minimum age. — No minor under
sixteen years of age shall be employed, permitted
or allowed to work in, about, or in connection
with any gainful occupation at any time: Pro-
vided, that minors between fourteen and sixteen
3'ears of age may be employed outside school hours
and during school vacations, but not in a factory
or in any occupation otherwise prohibited by law;
and Provided, that boys fourteen years of age and
over, and boys twelve years of age and over se-
curing a certificate from the department of labor,
may be employed outside school hours in the sale
or distribution of newspapers, magazines or pe-
riodicals subject to the provisions of section 5038-
(8) relating to employment of minors in street
trades and to such rules and regulations as may be
provided under section seven thousand three hun-
dred ten (h) of the Consolidated Statutes of North
Carolina. Nothing in this law shall be construed
to apply to the employment of a minor engaged
in domestic or farm work performed under the
direction or authority of the minor's parent or
guardian. (1937, c. 317, s. 1.)
§ 5038(2). Hours of labor. — No minor under
.sixteen years of age shall be employed, permitted
or allowed to work in, about or in connection with
any gainful occupation more than six consecutive
days in any one week, or more than forty hours in
any one week, or more than eight hours in any
one day, nor shall any minor under sixteen years
of age be so employed, permitted or allowed to
work before seven o'clock in the morning or after
six o'clock in the evening of any day. No minor
over sixteen years of age and under eighteen years
of age shall be employed, permitted or allowed to
work in or about or in connection with any gain-
ful occupation for more than six consecutive days
in any one week, or more than forty-eight hours
in any one week, or more than nine hours in any
one day, nor shall any minor between sixteen and
eighteen years of age be so employed, permitted or
allowed to work before six o'clock in the morn-
ing or after twelve o'clock midnight of any day,
except boys between the ages of sixteen and eight-
een may be permitted to work until one o'clock in
the morning as messengers where the offices of
the company for which they work do not close
before that hour: Provided, that no girl between
sixteen and eighteen years of age shall be so em-
ployed, permitted, or allowed to work before six
o'clock in the morning or after nine o'clock in the
evening of any day; and Provided further, that
boys twelve years of age and over, employed in
the sale or distribution of newspapers, magazines
or periodicals outside school hours shall be sub-
ject to the provisions of section 5038(8) relating
to employment of minors in street trades, and to
such rules and regulations as may be provided
under section seven thousand three hundred ten
(h) of the Consolidated Statutes of North Caro-
lina: Provided further, that minors under eight-
een years of age may be employed in a concert
or a theatrical performance, under such rules and
regulations as the state commissioner of labor
may prescribe, up to twelve o'clock midnight; and
provided further, that telegraph messenger boys
in towns where a full-time service is not main-
tained on Sundays may work seven days per
week, but not for more than two hours on Sun-
day. The combined hours of work and hours in
school of children under sixteen employed outside
school hours shall not exceed a total of eight per
day. (1937, c. 317, s. 2.)
§ 5038(3). Bunch period. — No minor under six-
teen years of age shall be employed or permitted
to work for more than five hours continuously
without an interval of at least thirty minutes for
a lunch period, and no period of less than thirty
minutes shall be deemed to interrupt a con-
tinuous period of work. (1937, c. 317, s. 3.)
§ 5038(4). Posting of hours. — Every employer
shall post and keep conspicuously posted in the
establishment wherein any minor under eighteen
is employed, permitted, or allowed to work, a
printed abstract of this law and a list of the oc-
cupations prohibited to such minors, to be fur-
nished by the state department of labor. (1937,
c. 317, s. 4.)
§ 5038(5). Time records. — Every employer
shall keep a time-book and/or record, which shall
state the name of each minor employed, and
which shall indicate the number of hours worked
by said minor on each day of the week, and the
amount of wages paid during each pay period.
Such time record shall be kept on file for at least
one year after the entry of the record, and shall
62 1
§ 5038(6)
CHILD WELFARE
§ 5038(10)
be open to the inspection of the state department
of labor. (1937, c. 317, s. 5.)
§ 5038(6). Hazardous occupations prohibited
for minors under sixteen. — No minor under six-
teen years of age shall be employed, permitted or
allowed to work on or in connection with power-
driven machinery. No minor under sixteen years
of age shall be employed, permitted or allowed to
work in or about or in connection with: Con-
struction work of any kind, ship building, mines
or quarries, stone cutting or polishing, the man-
ufacture, transportation or use of explosives or
highly inflammable substances, ore-reduction
works, smelters, hot rolling mills, furnaces, found-
ries, forging shops or any other place in which the
heating, melting or heat treatment of metals is
carried on; lumbering or logging operations, saw
or planing mills, pulp or paper mills, or in operat-
ing or assisting in operating punch presses or
stamping machines, if the clearance between the
ram and the die or the stripper exceeds one-fourth
inch; power-driven wood-working machinery,
cutting machines having a guillotine action, open-
ers, pickers, cards or lappers, power shears, ma-
chinery having a heavy rolling or crush-action,
corrugating, crimping, or embossing machines,
meat grinding machines, dough brakes or mixing
machines in bakeries or cracker making ma-
chinery, grinding, abrasive, polishing or buffing
machines: Provided, that apprentices operating
under conditions of bona fide apprenticeship may
grind their own tools; machinery used in the cold
rolling of heavy metal stock, metal plate bending
machines, power-driven metal planing machines,
circular saws, power-driven laundry or dry clean-
ing machinery, oiling, cleaning or wiping ma-
chinery or shafting or applying belts to pulleys;
or in the operation or repair of elevators or other
hoisting apparatus, or as drivers of trucks or other
motor vehicles, or in the operation of any un-
guarded machinery. (1937, c. 317, s. 6.)
§ 5038(7). Hazardous occupations prohibited
for minors under eighteen. — No minor under the
age of eighteen years shall be employed, permitted,
or allowed to work at any processes where quartz
or any other form of silicon dioxide or an asbestos
silicate is present in powdered form, or at work
involving exposure to lead or any of its com-
pounds in any form, or at work involving expos-
ure to benzol or any benzol compound which is
volatile or which can penetrate the skin, or at
work in spray painting, or in the handling of
unsterilized hides or animal or human hair. Nor
shall any minor under eighteen be employed or
permitted to work in, about or in connection with
any establishment where alcoholic liquors are
distilled, rectified, compounded, brewed, manu-
factured, bottled, sold, or dispensed, or in a pool
or billiard room. Nor shall any girl under the age
of eighteen years be employed, permitted or al-
lowed to work as a messenger in the distribution
or delivery of goods or messages for any person,
firm or corporation engaged in the business of
transmitting or delivering goods or messages.
Nor shall any minor under eighteen years of
age be employed, permitted, or allowed to work
in any place of employment, or at any occupation
hazardous or injurious to the life, health, safety
or welfare of such minor. It shall be the duty of
the state department of labor and the said state
department of labor shall have power, jurisdiction,
and authority, after due notice and after hearings
duly held, to issue general or special orders, which
shall have the force of law, prohibiting the em-
ployment of such minors in any place of employ-
ment or at any occupation hazardous or injurious
to the life, health, safety or welfare of such
minors. (1937, c. 317, s. 7.)
§ 5038(8). Employment of minors in street
trades; sal© or distribution of newspapers, etc. —
No boy under fourteen years of age and no girl
under eighteen years of age shall distribute, sell,
expose or offer for sale newspapers, magazines,
periodicals, candies, drinks, peanuts, or other mer-
chandise in any street or public place, or exercise
the trade of bootblack in any street or public
place. No boy under sixteen years of age shall
be employed or permitted or allowed to work at
any of the trades or occupations mentioned in this
section after seven p. m. or before 6 a. m., or un-
less he has an employment certificate issued in
accordance with section 5038(9). The state com-
missioner of labor shall have authority to make,
promulgate and enforce such rules and regula-
tions as he may deem necessary for the enforce-
ment of this section, not inconsistent with this
law or existing law.
Nothing in this section shall be construed to
prevent male persons over fourteen years of age
from distributing newspapers, magazines and pe-
riodicals on fixed routes, seven days per week:
Provided, that such persons shall not be em-
ployed nor allowed to work after eight o'clock
p. m. and before five o'clock a. m., and that the
hours of work and the hours in school do not ex-
ceed eight in any one day, except boys twelve
years of age and over who have secured a cer-
tificate from the department of labor for the sale
or distribution of newspapers, magazines or pe-
riodicals; and Provided further, that such person
shall not be permitted or allowed to work more
than four hours per day nor more than twenty-
four hours per week: Provided further, that
nothing in this law shall be construed to prevent
boys over twelve years of age, upon securing a
proper certificate from the department of labor,
from being employed outside school hours in the
sale or distribution of newspapers, magazines and
periodicals (where not more than seventy-five cus-
tomers are served in one day) : Provided, that
such boys shall not be employed between the
hours of seven o'clock p. m. and six o'clock a. m.,
nor for more than ten hours in any one week.
(1937, c. 317, s. 3.)
§ 5038(9). Employment certificate required. —
Before any minor under eighteen years of age
shall be employed, permitted or allowed to work
in, about or in connection with any gainful oc-
cupation, the person employing such minor shall
procure and keep on file an employment certificate
for such minor, issued as hereinafter prescribed.
In case of a minor engaged in street trade where
the relationship of employer and employee does
not exist between such minor and the supplier
of the merchandise which the minor sells, the
parent or guardian of such minor shall be deemed
the employer of such minor and shall procure
and keep on file the employment certificate herein
required. (1937, c. 317, s. 9.)
§ 5038(10). Officers authorized to issue cer-
[ 163
§ 5038(11)
CHILD WELFARE
§ 5038(17)
tifi.cates. — The employment certificate required by
this law shall be issued only by county or city su-
perintendents of public welfare in such form and
under such conditions as may be prescribed by
the state department of labor. (1937, c. 317, s. 10.)
§ 5038(11). Refusal and revocation of employ-
ment certificate. — The person designated to issue
employment certificates may refuse to grant such
certificate, or may revoke such certificate after
issuance if, in his judgment, the best interests of
the minor would be served by such refusal or
revocation. Employer, parent or guardian of the
minor whose employment certificate has been re-
fused or revoked may appeal to the commissioner
of labor. (1937, c. 317, s. 11.)
§ 5038(12). Method of issuing employment cer-
tificates.— The person designated to issue employ-
ment certificates shall issue such certificates only
upon the application in person of the minor desir-
ing employment, and after having approved and
filed the following papers:
(1) A promise of employment signed by the
prospective employer or by some one duly au-
thorized by him, setting forth the specific nature
of the occupation in which he intends to employ
such minor, and the number of hours per day and
days per week which said minor shall be em-
ployed.
(2) Evidence of age showing that minor is of
the age required by this law, which evidence shall
consist of one of the following proofs of age and
shall be required in the order herein designated, as
follows:
(a) A duly attested transcript of the birth cer-
tificate filed according to law with a register of
vital statistics, or other officer charged with the
duty of recording births; or
limited, the employment certificate issued thereon
shall state clearly the limitations upon its use, and
shall be valid only when used under the limitations
so stated. The minor shall not be charged a fee
for such examination or statement of physical fit-
ness. The method of making such examinations
shall be prescribed by the state department of
labor.
(4) A school record signed by the principal of
the school which the minor has last attended or
by some one duly authorized by him, giving the
full name, date of birth, grade last completed, and
residence of the minor.
The employment certificate shall be delivered to
the prospective employer of the minor for whom
the employment certificate is issued, and such cer-
tificate shall be valid only for the employer named
therein and for the occupation designated in the
promise of employment. (1937, c. 317, s. 12.)
§ 5038(13). Employment certificate as evidence.
— Said employment certificate duly issued shall be
conclusive evidence of the age of the minor for
whom issued in any proceeding involving the em-
ployment of the minor under the child labor or
workmen's compensation law or any other labor
law of the state, as to any act occurring subse-
quent to its issuance. (1937, c. 317, s. 13.)
§ 5038(14). Regular and vacation employment
certificates. — Employment certificates shall be of
two kinds, regular certificates permitting employ-
ment during school hours, and vacation certificates,
permitting employment during the school vaca-
tion and during the school term at such time as
the public schools are not in session. (1937, c. 317,
s. 14.)
§ 5038(15). Duties of employers in regard to
(b) A baptismal certificate or transcript of the employment certificates. — Every employer receiv-
record of baptism, duly certified, and showing the
date and place of birth; or
(c) Other documentary record of age (other
than a school record or an affidavit of age) such
as a Bible record, passport or transcript thereof,
duly certified, or life insurance policy which shall
appear to the satisfaction of the issuing officer to
be good and sufficient evidence of age; or
(d) In the case none of the aforesaid proofs of
age shall be obtainable, and only in such case, the
issuing officer may accept the signed statement of
the physician authorized to make the physical ex-
aminations required by this section, stating that,
after examination, it is his opinion that the minor
has attained the age required by law for the occu-
pation in which he expects to engage. Such state-
ment shall be accompanied by an affidavit, signed
by the minor's parents or guardian, certifying to
the name, date and place of birth of the minor and
that the proofs of age specified in the preceding
sub-divisions of this section cannot be produced.
(3) A statement of physical fitness, signed by a
public health, public school or other physician as-
signed to this duty by the issuing officer with the
approval of the state department of labor, setting
forth that such minor has been thoroughly ex-
amined by such physician and that he is either
physically fit to be employed in any legal occupa-
tion, or that he is physically fit to be employed
under certain limitations, specified in the state-
ment. If the statement of physical fitness is
ing an employment certificate shall, during the
period of the minor's employment, keep such cer-
tificate on file at the place of employment and ac-
cessible to any certificate-issuing officer, attend-
ance officer, inspector, or other person authorized
to enforce this law. The failure of any employer
to produce for inspection such employment certifi-
cate shall be prima facie evidence of the unlawful
employment of the minor. (1937, c. 317, s. 15.)
§ 5038(16). Certificates of age.— Upon request,
it shall be the duty of the officer authorized to is-
sue employment certificates to issue to any person
between the ages of eighteen and twenty-one de-
siring to enter employment a certificate of age up-
on presentation of the same proof of age as is re-
quired for the issuance of employment certificates
under this law, and such certificate duly issued
shall be conclusive evidence of the age of the
minor for whom issued in any proceeding in-
volving the employment of the minor under the
child labor or workmen's compensation law or any
other labor law of the state, as to any act occurring
subsequent to its issuance. (1937, c. 317, s. 16.)
§ 5038(17). State supervision of the issuance of
employment certificates. — The state department of
labor shall prescribe such rules and regulations for
the issuance of employment certificates and age
certificates as will promote uniformity and effi-
ciency in the administration of this law. It also
shall supply to local issuing officers all blank
[ 164
§ 5038(18)
COMMERCE AND BUSINESS IN STATE
§ 5126(al)
forms to be used in connection with the issuance
of such certificates. Duplicates of each employ-
ment or age certificate shall be mailed by the is-
suing officer to the state department of labor with-
in one week after issuance. The state department
of labor may revoke any such certificate if in its
judgment it was improperly issued or if the minor
is illegally employed. If the certificate be revoked,
the issuing officer and the employer shall be noti-
fied of such action in writing, and such minor shall
not thereafter be employed or permitted to work
until a new certificate has been legally obtained.
(1937, c. 317, s. 17.)
§ 5038(18). Rules and regulations. — The com-
missioner of labor of North Carolina shall have
the power to make such rules and regulations for
enforcing and carrying out the provisions of this
law as may be deemed necessary by said commis-
sioner. (1937, c. 317, s. 18.)
§ 5038(19). Inspection and prosecutions. — It
shall be the duty of the state department of labor
and of the inspectors and agents of said state de-
partment of labor to enforce the provisions of this
law, to make complaints against persons violating
its provisions, and to prosecute violations of the
same. The said state department of labor, its in-
spectors and agents shall have authority to enter
and inspect at any time any place or establishment
covered by the law, and to have access to em-
ployment certificates kept on file by the employer
and such other records as may aid in the enforce-
ment of this law. School attendance officers are
likewise empowered to visit and inspect places
where minors may be employed.
Any person authorized to enforce this law may
require an employer of a minor for whom an em-
ployment certificate is not on file to either furnish
him within ten days the evidence required for an
employment certificate showing that the minor is
at least eighteen years of age, or to cease to em-
ploy or permit or allow such minor to work. (1937,
c. 317, s. 19.)
§ 5038(20). Penalties. — Whoever employs or
permits or allows any minor to be employed or to
work in violation of this law, or of any order or
ruling issued under the provisions of this law, or
obstructs the state department of labor, its offi-
cers or agents, or any other persons authorized to
inspect places of employment under this law, and
whoever having under his control or custody any
minor, permits or allows him to be employed or
to work in violation of this law, shall be guilty of
?. misdemeanor, and upon conviction shall be pun-
ished by a fine of not less than five dollars ($5.00)
nor more than fifty dollars ($50.00), or imprison-
ment for not more than thirty days, or both such
fine and imprisonment. Each day during which
any violation of this law continues after notice
from the state department of labor to the proprie-
tor, manager, or other officer of the partnership,
firm or corporation, shall constitute a separate and
distinct offense, and the employment of any minor
in violation of the law shall, with respect to each
minor so employed, constitute a separate and dis-
tinct offense. The penalties specified in this law
may be recovered by the state in an action for
debt brought before any court of competent juris-
[16
diction, or through criminal proceedings, as may
be deemed proper. (1937, c. 317, s. 20.)
§ 5038(21). Particular laws repealed. — The fol-
lowing laws are superseded by this law and are
hereby repealed: Public Laws of one thousand
nine hundred nineteen, chapter one hundred, sec-
tion seven; Public Laws of one thousand nine
hundred twenty-four, chapter seventy-four (§
5032) ; Public Laws of one thousand nine hundred
nineteen, chapter one hundred, section six; Public
Laws of one thousand nine hundred twenty-four,
chapter one hundred twenty-nine, section two;
Public Laws of one thousand nine hundred twenty-
seven, chapter two hundred fifty-one; Public Laws
of one thousand nine hundred thirty-one, chapters
one hundred twenty-five and three hundred ninety-
one (§ 5033); Public Laws of one thousand nine
hundred nineteen, chapter one hundred, section
ten; Public Laws of one thousand nine hundred
twenty-four, chapter seventy-four (§ 5034) ; but
nothing in this law shall be construed to repeal the
provisions of section 5033(a). (1937, c. 317, s. 22.)
Art. 2. Juvenile Courts
§ 5039. Exclusive original jurisdiction over chil-
dren.
Applied in McEacbern v. McEachern, 210 N. C. 98, 185
S. E. 684.
§ 5040. Juvenile courts created; part of supe-
rior court.
Editor's Note. — For act providing for appointment of as-
sistant judge of juvenile court of Mecklenburg county, see
Public Laws 1937, c. 251.
Art. 4. Aid of Needy Orphans in Homes of Worthy
Mothers
§§ 5067 (a) -5067(h): Repealed by Public Laws
1937, c. 288, s. 61.
The repealing act is codified as §§ 5018(1) -5018(62).
CHAPTER 91
COMMERCE AND BUSINESS IN STATE
Art. 6A. Dealers in Scrap Tobacco
§ 5126(al). Application for license; amount of
tax; exceptions. — Every person, firm or corpora-
tion desiring to engage in the business of buying
and/or selling scrap or untied tobacco in the state
of North Carolina shall first procure from the com-
missioner of revenue of North Carolina a license
so to do, and for that purpose shall file with the
said commissioner of revenue an application set-
ting forth the name of the county or counties in
which such applicant proposes to engage in the
said business and the place or places where his,
their or its principal office (if any) shall be situ-
ated; and shall pay to the said commissioner of
revenue of North Carolina, to be placed in the
general fund for the use of the state, an annual li-
cense tax of one thousand dollars ($1,000.00) for
each and every county in North Carolina in which
the applicant proposes to engage in such business.
Every such license issued hereunder shall run from
the date thereof and shall expire on the thirty-first
day of May of the next year following its issue.
No license shall be issued for less than the full
amount of tax prescribed. Any lot of parts of
leaves of tobacco, or any lot in which parts of
5]
§ 5126(a2)
COMMERCE AND BUSINESS IN STATE
§ 5126(m)
leaves of tobacco are commingled with whole
leaves of tobacco, or any other leaf or leaves of
tobacco, or parts of leaves of tobacco not per-
mitted, under the rules and regulations of tobacco
warehouses, to be offered for sale at auction on
tobacco warehouse floors, shall be deemed to be
''scrap or untied" tobacco within the meaning and
purview of this article. (1935, c. 360, s. 1; 1937, c.
414, s. 1.)
The former law (P. S. 1935, c. 360) was void for uncer-
tainty, the statute failing to stipulate the time when the li-
cense prescribed should be paid and failing to prescribe for
how long a time the license should run. State v. Morrison,
210 N. C. 117, 185 S. K- 674.
The former law was not a criminal statute, and a person
refusing to comply with its provisions could not be charged
with crime. Id.
§ 5126(a2). Report to commissioner of agricul-
ture each month. — On or before the tenth day of
each month every person, firm or corporation en-
gaged in the business set forth in section one here-
of shall make a report to the commissioner of
agriculture of North Carolina, setting forth the
number of pounds of scrap or untied tobacco pur-
chased and the price paid therefor during the pre-
ceding month in each of the counties in which the
said person, firm or corporation is doing business
and also the purposes for which such scrap tobacco
is bought or sold. (1935, c. 360, s. 2; 1937, c. 414,
s. 2.)
§ 5126(a3). Display of license; duplicate license.
-^— If the person, firm or corporation licensed to en-
gage in the business aforesaid has a warehouse,
office or fixed place of business, the license issued
by the commissioner of revenue, as herein pro-
vided, shall be displayed in a conspicuous place
in the said office, warehouse or place of business;
if the said person, firm or corporation shall have
no warehouse, office or fixed place of business, the
said person, partner or representative of the cor-
poration (if incorporated) engaged in such business
shall carry on his person such license or a dupli-
cate thereof, which shall be exhibited when re-
quested or demanded by any law enforcement of-
ficer of North Carolina or any person from whom
such tobacco is bought or to whom the same may
be sold. A duplicate of the original license issued
under this article shall be issued by the commis-
sioner of revenue on request upon the payment of
an additional license tax of five dollars ($5.00) for
each such duplicate. (1935, c. 360', s. 3; 1937, c.
414, s. 3.)
§ 5126 (a4). Violation made misdemeanor. — Any
person, firm or corporation violating any of the
provisions of this article shall be guilty of a mis-
demeanor, and upon conviction shall be fined
and/or imprisoned in the discretion of the court.
(1937, c. 414, s. 4.)
§ 5126 (a5). Exemptions. — Nothing in this article
shall have any effect upon or apply to any stocks
of leaf and scrap tobacco grown prior to the year
one thousand nine hundred thirty-seven. (1937, c.
414, s. 4^.)
Art. 8. Fair Trade
§ 5126(k). Definitions. — The following terms,
as used in this article, are hereby defined as fol-
lows:
(a) "Commodity" means any subject of com-
merce.
(b) "Producer" means any grower, baker,
maker, manufacturer, bottler, packer, converter,
processor or publisher.
(c) "Wholesaler" means any person selling a
commodity other than a producer or retailer.
(d) "Retailer" means any person selling a com-
modity to consumers for use.
(e) "Person" means an individual, a corporation,
a partnership, an association, a joint-stock com-
pany, a business trust or any unincorporated or-
ganization. "Person" shall not include the state
of North Carolina or any of its political sub-di-
visions. (1937, c. 350, s. 1.)
For a discussion of the act from which this article was
codified, see 15 N. C. Law Rev., No. 4, p. 367.
§ 5126(1). Authorized contracts relating to sale
or resale of commodities bearing trademark, brand
or name. — No contract relating to the sale or re-
sale of a commodity which bears, or the label or
container of which bears, the trade-mark, brand,
or name of the producer or distributor of such
commodity and which commodity is in free and
open competition with commodities of the same
general class produced or distributed by others,
shall be deemed in violation of any law of the
state of North Carolina by reason of any of the
following provisions which may be contained in
such contract:
(a) That the buyer will not resell such com-
modity at less than the minimum price stipulated
iby the seller.
(b) That the buyer will require of any dealer to
whom he may resell such commodity an agree-
ment that he will not, in turn, resell at less than
the minimum price stipulated by the seller.
(c) That the seller will not sell such com-
modity:
(1) To any wholesaler, unless such wholesaler
will agree not to resell the same to any retailer
unless the retailer will in turn agree not to resell
the same except to consumers for use and at not
less than the stipulated minimum price, and such
wholesaler will likewise agree not to resell the
same to any other wholesaler unless such other
wholesaler will make the same agreement with
any wholesaler or retailer to whom he may resell;
or
(2) To any retailer, unless the retailer will
agree not to resell the same except to consumers
for use and at not less than the stipulated mini-
mum price. (1937, c. 350, s. 2.)
§ 5126 (m). Certain evasions of resale price re-
strictions, prohibited. — For the purpose of pre-
venting evasion of the resale price restrictions im-
posed in respect of any commodity by any con-
tract entered into pursuant to the provisions of
this article (except to the extent authorized by
the said contract) :
(a) The offering or giving of any article of
value in connection with the sale of such com-
modity;
(b) The offering or the making of any conces-
sion of any kind whatsoever (whether by the giv-
ing of coupons or otherwise) in connection with
any such sale; or
(c) The sale or offering for sale of such com-
modity in combination with any other commodity
[166]
§ 5126(n)
COMMISSION FOR THE BLIND
§ 5126(13)
shall be deemed a violation of such resale prices
restriction, for which the remedies prescribed by
section 5126 (p) shall be available. (1937, c. 350,
s. 3.)
§ 5126(n). Contracts with persons other than
the owner of the brand, etc., not authorized. — No
minimum resale price shall be established for any
commodity, under any contract entered into pur-
suant to the provisions of this article, by any per-
son other than the owner of the trade-mark, brand
or name used in connection with such commodity
or a distributor specifically authorized to establish
said price by the owner of such trade-mark, brand
or name. (1937, c. 350, s. 4.)
§ 5126(o). Resales not precluded by contract. —
No contract containing any of the provisions enu-
merated in section 5126(1) shall be deemed to pre-
clude the resale of any commodity covered there-
by without reference to such contract in the fol-
lowing cases:
(a) In closing out the owner's stock for the
bona fide purpose of discontinuing dealing in any
such commodity and plain notice of the fact is
given to the public: Provided, the owner of such
stock shall give to the producer or distributor of
such commodity prompt and reasonable notice in
writing of his intention to close out said stock,
and an opportunity to purchase such stock at the
original invoice price;
(b) When the trade-mark, brand or name is re-
moved or wholly obliterated from the commodity
and is not used or directly or indirectly referred
to in the advertisement sale thereof;
(c) When the goods are altered, second-hand,
damaged or deteriorated and plain notice of the
fact is given to the public in the advertisement
and sale thereof, such notice to be conspicuously
displayed in all advertisements and to be affixed
to the commodity;
(d) By any officer acting under an order of
court.
(e) When any commodity is sold to a religious,
charitable or educational organization or institu-
tion, provided such commodity is for the use of
such organization or institution and not for resale.
(1937, c. 350, s. 5.)
§ 5126 (p). Violation of contract declared un-
fair competition.— Wilfully and knowingly adver-
tising, offering for sale or selling any commodity
at less than the price stipulated in any contract
entered into pursuant to the provisions of this ar-
ticle, whether the person so advertising, offering
for sale or selling is or is not a party to such con-
tract, is unfair competition and is actionable at
the suit of any person damaged thereby. (1937,
c. 350, s. 6.)
§ 5126i(q). Exemptions.— This article shall not
apply to any contract or agreement between or
among producers or distributors or, except as pro-
vided in sub-division (c) of section 5126(1), be-
tween or among wholesalers, or between or among
retailers, as to sale or resale prices. This article
shall not apply to any prices offered in connection
with or contracts or purchases made by the state
of North Carolina or any of its agencies, or any
•of the political subdivisions of the said state.
(1937, c. 350, s. 7.)
§ 5126(r). Title of article. — This article may I
be known and cited as the "Fair Trade Act.'
(1937, c. 350, s. 10.)
CHAPTER 91A
COMMISSION FOR THE BLIND
§ 5 126 (la). Additional members of commission
for blind; meeting place — In addition to the
members of the North Carolina state commission
for the blind, as provided in section 5126(1), there
shall be three additional persons, to be appointed
by the governor within thirty days after the pas-
sage of this law. The secretary of the state board
of health, the director of the North Carolina em-
ployment service, and the commissioner of public
welfare of North Carolina shall also be ex officio
members of this commission, and their term of
office shall be contemporaneous with their tenure
of office as secretary of the state board of health,
director of the North Carolina employment serv-
ice, and commissioner of public welfare. But the
three additional members, to be appointed by the
governor as herein provided, one shall be ap-
pointed for a term of five years, one for a term
of three years, and one for a term of one year. At
the expiration of the term of any member of the
commission, his successor shall be appointed for
a term of five years. All meetings of the North
Carolina state commission for the blind shall be
held in the city of Raleigh. (1937, c. 285.)
§ 5126(5). Training schools and workshops;
training outside state; sale of products. —
The commission may also, whenever it thinks
proper, aid individual blind persons or groups of
blind persons to become self-supporting by fur-
nishing material or equipment to them, and may
also assist them in the sale and distribution of
their products. Any portion of the funds appro-
priated to the North Carolina state commission
for the blind under the provisions of this chapter
providing for the rehabilitation of the blind and
the prevention of blindness may, when the North
Carolina state commission for the blind deems
wise, be given in direct money payments to the
needy blind in accordance with the provisions of
this amending law, and whenever possible such
funds may be matched by funds provided by the
Federal Social Security Act. (1935, c. 53, s. 5;
1937, c. 124, s. 16.)
Editor's Note.— The 1937 amendment struck out the last
sentence of this section and inserted the above provision
in lieu thereof. The rest of the section, not being affected
by the amendment, is not set out.
§ 5126(12). Commission granted additional pow-
ers and duties. — Chapter fifty-three, Public Laws
of nineteen hundred and thirty-five [§§ 5126(1)-
5126(11)], establishing a state commission for the
improvement of the condition of the blind and the
prevention of blindness, be and the same hereby
is amended, and it is hereby provided that, in ad-
dition to the powers and duties imposed upon the
North Carolina state commission for the blind
therein provided, the North Carolina state com-
mission for the blind shall be and hereby is:
charged with the powers and duties hereinafter
enumerated. (1937, c. 124, s. 1.)
For an article discussing social security, see 15 N. C.
Iyaw Rev., No. 4, p. 369.
§ 5120(13). Administration of assistance; ob-
[167]
§ 5126(14)
COMMISSION FOR THE BLIND
5136(16)
jective standards for personnel; rules and regula-
tions.— The North Carolina state commission for
the blind shall be charged with the supervision of
the administration of assistance to the needy blind
under this chapter, and said commission shall es-
tablish objective standards for personnel to be
qualified for employment in the administration of
this chapter, and said commmission shall make all
rules and regulations as may be necessary for car-
rying out the provisions of this chapter, which
rules and regulations shall be binding on the
boards of county commissioners and all agencies
charged with the- duties of administering this
chapter. (1937, c. 124, s. 2.)
§ 5126(14). Application for benefits under chap-
ter; investigation and award by county commis-
sioners.— Any person claiming benefit under this
chapter, shall file with the commissioners of the
county in which he or she has a legal settlement
an application in writing, in duplicate, upon forms
prescribed by the North Carolina state commis-
sion for the blind, which application shall be ac-
companied by a certificate signed by a reputable
physician licensed to practice medicine in the
state of North Carolina and who is actively en-
gaged in the treatment of diseases of the human
eye, to the effect that the applicant has twenty-
two -hundredths (20/200) vision or less in the bet-
ter eye, with correcting glasses. Such application
may be made on the behalf of any such blind per-
son by the North Carolina state commission for
the blind, or by any other person. The board of
county commissioners shall cause an investigation
to be made by a qualified person, or persons, des-
ignated as their agents for this purpose and shall
pass upon the said application without delay, de-
termine the eligibility of the applicant, and allow
or disallow the relief sought. In passing upon the
application, they may take into consideration the
facts set forth in the said application, and any
other facts that are deemed necessary, and may at
any time, within their discretion, require an addi-
tional examination of the applicant's eyes by an
ophthalmologist designated by the North Carolina
state commission for the blind. When satisfied
with the merits of the application, the board of
county commissioners shall allow the same and
grant to the applicant such relief as may be suit-
able and proper, according to the rules and stand-
ards established by the North Carolina state com-
mission for the blind, not inconsistent with this
chapter and in accordance with the further pro-
visions hereof. (1937, c. 124, s. 3.)
§ 5126(15). Eligibility for relief. — Blind per-
sons having the following qualifications shall be
eligible for relief under the provisions of this,
chapter:
(1) Who have twenty-two hundredths (20/200)
vision or less in the better eye with correcting
glasses, or whose vision is insufficient for use in
ordinary occupations for which sight is essential;
and
(2) Who are unable to provide for themselves
the necessities of life and who have insufficient
means for their own support and who have no rel-
ative or relatives or other persons in this state
able to provide for them who are legally respon-
sible for their maintenance; and
(3) Who have resided in the state of North Car-
olina for five years during the nine years imme-
diately preceding the date of such application, and
who have been residents of the state of North
Carolina one year immediately preceding the ap-
plication; and
(4) Who are not inmates of any charitable or
correctional institution of this state or of any
county or city thereof: Provided, that an inmate
of such charitable institution may be granted a
benefit in order to enable such person to maintain
himself or herself outside of an institution; and
(5) Who is not publicly soliciting alms in any
part of the state, and who is not, because of phys-
ical or mental condition, in need of continuing
institutional care. (1937, c. 124, s. 4.)
§ 5126(16). Application transmitted to com-
mission; notice of award; review by commission.
— Promptly after an application for aid is made to
the board of county commissioners under this
chapter the North Carolina state commission for
the blind shall be notified thereof by mail, by said
county commissioners, and one of the duplicate
applications for aid made before the board of
county commissioners shall be transmitted with
said notice.
As soon as any award has been made by the
board of county commissioners, or any application
declined, prompt notice thereof in writing shall be
forwarded by mail to the North Carolina state
commission for the blind and to the applicant, in
which shall be fully stated the particulars of the
award or the facts of denial.
Within a reasonable time, in accordance with
rules and regulations adopted by the North Caro-
lina state commission for the blind, after action
by the board of county commissioners, the appli-
cant, if dissatisfied therewith, may appeal directly
to the North Carolina state commission for the
blind. Notice of such appeal must be given in
writing to the board of county commissioners,
and within thirty days after the receipt of such
notice the board of county commissioners shall
transmit to the North Carolina state commission
for the blind copies of all proceedings and docu-
ments, including the award or denial, which may
be necessary for the hearing of the said appeal,
together with the grounds upon which the action
was based.
As soon as may be practicable after the receipt
of the said notice of appeal, the North Carolina
state commission for the blind shall notify the ap-
plicant of the time and place where the hearing
of such appeal will be had. The members of the
North Carolina state commission for the blind
shall hear the said appeal under such rules and
regulations not inconsistent with this chapter as
it may establish, and shall provide for granting an
individual whose claim for aid is denied an oppor-
tunity for fair hearing before said commission, and
their decision shall be final. Any notice required
to be given herein may be given by mail or by
personally delivering in writing such notice to the
clerk of the board of county commissioners or the
executive secretary of the North Carolina state
commission for the blind, except that notice of
the time and place where the hearings of such ap-
peals will be had shall be given by mail or by per-
sonal delivery of such notice in writing direct to
the applicant.
In all cases, whether or not any appeal shall be
[168]
§ 5126(17)
COMMISSION FOR THE BLIND
§ 5126(20)
taken by the applicant, the North Carolina state
commission for the blind shall carefully examine
such award or decision, as the case may be, and
shall, in their discretion, approve, increase, allow
or disallow any award so made. Immediately
thereafter they shall notify the board of county
commissioners and the applicant of such action,
and if the award made by the board of county
commissioners is changed, notice thereof shall be
given by mail to the applicant and the board of
county commissioners, giving the extent and man-
ner in which any award has been changed.
If, in the absence of any appeal by the appli-
cant, the North Carolina state commission for the
blind shall make any order increasing or decreas-
ing the award allowing or disallowing the same,
the applicant or the board of county commission-
ers shall have the right, within ten days from no-
tice thereof, to have such order reviewed by the
members of the North Carolina state commission
for the blind. The procedure in such cases shall
be as provided in this section on appeals to the
commission by the applicant. (1937, c. 124, s. 5.)
§ 5126(17). Amount and payment of assistance;
source of funds. — When the board of county com-
missioners is satisfied that the applicant is enti-
tled to relief under the provisions of this chapter,
as provided in section 5126(14), they shall order
necessary relief to be granted under the rules and
regulations prescribed by the North Carolina state
commission for the blind, but in no case in an
amount to exceed thirty dollars per month to be
paid from county, state and federal funds avail-
able, said relief to be paid in monthly payments
from funds hereinafter mentioned.
At the time of fixing the annual budget for the
fiscal year beginning July first, one thousand nine
hundred thirty-seven, and annually thereafter, the
board of county commissioners in each county
shall, based upon such information as they are
able to secure and with such information as may
be furnished to them by the North Carolina state
commission for the blind, estimate the number of
needy blind persons in such county who shall be
entitled to aid under the provisions of this chap-
ter and the total amount of such county's one-
fourth part thereof required to be paid by such
county. All such counties shall make an appro-
priation in their budgets which shall be found to
be ample to pay their part of such payments and,
at the time of levying other taxes, shall levy suffi-
cient taxes for the payment of the same. This
provision shallbe mandatory on all of the coun-
ties in the state. Such taxes so levied shall be
and hereby are declared to be for this special pur-
pose and levied with the consent of the general
assembly. Any court of competent jurisdiction is
authorized by mandamus to enforce the foregoing
provisions. No funds shall be allocated to any
county by the North Carolina state commission
for the blind until the provisions hereof have been
fully complied with by such county.
In case such appropriation is exhausted within
the year and is found to be insufficient to meet
the county's one-fourth part of the amount re-
quired for aid to the needy blind, such deficiency
may be borrowed, if within constitutional limita-
tions, at the lowest rate of interest obtainable, not
exceeding six per cent, and provision for payment
thereof shall be made in the next annual budget
and tax levy.
The board of county commissioners in the sev-
eral counties of the state shall cause to be trans-
mitted to the state treasurer one-fourth of the
total amount of relief granted to the blind appli-
cants. Such remittances shall be made by the
several counties in equal monthly installments on
the first day of each month, beginning July first,
one thousand nine hundred thirty-seven. The
state treasurer shall deposit said funds and credit
same to the account of the North Carolina state
commission for the blind to be employed in car-
rying out the provisions of this chapter. (1937, c.
124, s. 6.)
§ 5126(18). Payment of awards. — After an
award to a blind person has been made by the
board of county commissioners, and approved by
the North Carolina state commission for the blind,
the North Carolina state commission for the
blind shall thereafter pay to such person to whom
such award is made the amount of said award in
monthly payments, or in such manner and under
such terms as the North Carolina state commis-
sion for the blind shall determine. Such payment
shall be made by warrant of the state auditor,
drawn upon such funds in the hands of the state
treasurer, at the instance and request and upon a
proper voucher signed by the executive secretary
of the North Carolina state commission for the
blind, and shall not be subject to the provisions
of the Executive Budget Act as to approval of
said expenditure. (1937, c. 124, s. 7.)
§ 5126(19). When applications for relief made
directly to state commission. — If any person, oth-
erwise entitled to relief under this chapter, shall
have the residence requirements in the state of
North Carolina, but no legal settlement in any one
of the counties therein, his or her application for
relief under this chapter shall be made directly to
the North Carolina state commission for the blind,
in writing, in which shall be contained all the facts
and information sufficient to enable the said com-
mission to pass upon the merits of the application.
Blank forms for such application shall be fur-
nished by the North Carolina state commission
for the blind. If the said commission finds the
applicant entitled to assistance within the rules
and regulations prescribed by it, and consonant
with the provisions of this chapter, relief shall be
given to such person coming under the rules of
eligibility to such extent as the North Carolina
state commission for the blind may consider just
and proper, but not in excess of the amounts
specified in section 5126(17). Payment of the
benefits thus awarded, however, shall be made en-
tirely out of the funds provided by the state, to-
gether with such funds which may be added there-
to as federal grants in aid, and shall not be a
charge upon the funds locally raised by taxation
in the counties until such person shall have re-
sided in some county for sufficient time to acquire
a settlement therein; thereafter payments shall be
made as in other cases. (1937, c. 124, s. 8.)
§ 5126(20). Awards subject to reopening upon
change in condition. — All awards to needy blind
persons made under the provisions of this chapter
shall be made subject to reopening and reconsid-
eration at any time when there has been any
169]
§ 5126(21)
COMMISSION FOR THE BLIND
§ 5126(26)
change in the circumstances of any needy blind
person or for any other reason. The North Caro-
lina state commission for the blind and the board
of county commissioners of each of the counties
in which awards have been made shall at all times
keep properly informed as to the circumstances
and conditions of the persons to whom the awards
are made, making reinvestigations bi-annually, or
more often, as may be found necessary. The
North Carolina state commission for the blind
may at any time present to the proper board of
county commissioners any case in which, in their
opinion, the changed circumstances of the case
should be reconsidered. The board of county
commissioners shall reconsider such cases and any
and all other cases which, in the opinion of the
board of county commissioners, deserve recon-
sideration. In all such cases notice of the hear-
ing thereon shall be given to the person to whom
the award has been made. Any person to whom
an award has been made may apply for a reopen-
ing and reconsideration thereof. Upon such hear-
ing, the board of county commissioners may make
a new award increasing or decreasing the former
award or leaving the same unchanged, or discon-
tinuing the same, as it may find the circumstances
of the case to warrant, such changes always to be
within the limitations provided by this chapter
and in accordance with the terms hereof.
Any changes made in such award shall be re-
ported to the North Carolina state commission for
the blind, and shall be subject to the right of ap-
peal and review, as provided in section 5126(16).
(1937, c. 124, s. 9.)
§ 5126(21). Disqualifications for relief. — No
aid to needy blind persons shall be given under
the provisions of this chapter to any individual for
any period with respect to which he is receiving
aid under the laws of North Carolina providing
aid for dependent children and/or relief for the
aged. (1937, c. 124, s. 10.)
§ 5126(22). Beneficiaries not deemed paupers.
■ — No blind person shall be deemed a pauper by
reason of receiving relief under this chapter.
(1937, c. 124, s. 11.)
§ 5126(23). Misrepresentation or fraud in ob-
taining assistance. — Any person who shall obtain,
or attempt to obtain, by means of a wilful, false
statement, or representation, or impersonation, or
other fraudulent devices, assistance to which he
is not entitled shall be guilty of a misdemeanor
and upon conviction shall be punished by a fine
of not more than five hundred ($500.00) dollars,
or by imprisonment in the county jail for not
more than three months, or by both such fine and
imprisonment. The superior court and the re-
corders' courts shall have concurrent jurisdiction
in all prosecutions arising under this chapter.
(1937, c. 124, s. 12.)
§ 5126(24). Cooperation with federal social se-
curity board; grants from federal government. —
The North Carolina state commission for the
blind is hereby empowered and authorized and di-
rected to co-operate with the federal social secu-
rity board, created under Title X of the Social Se-
curity Act, approved August fourteenth, one thou-
sand nine hundred thirty-five, in any reasonable
manner as may be necessary to qualify for federal
aid for assistance to the needy blind and in con-
formity with the provisions of this chapter, in-
cluding the making of such reports in such form
and containing such information as the federal
social security board may from time to time re-
quire, and comply with such regulations as said
board may from time to time find necessary to
assure the correctness and verification of such re-
ports.
The North Carolina state commission for the
blind is hereby further empowered and authorized
to receive grants in aid from the United States
government for assistance to the blind and grants
made for payment of cost of administering the
state plan for aid to the blind, and all such grants
so received hereunder shall be paid into the state
treasury and credited to the account of the North
Carolina state commission for the blind in carry-
ing out the provisions of the chapter. (1937, c.
124, s. 13.)
§ 5126(25). Appropriations by state; cost of
administration by federal government. — The sum
of eighty-five thousand one hundred and eighty
($85,180.00) dollars annually, or so much thereof
as may be necessary, shall be and is hereby ap-
propriated out of the moneys within the state
treasury and not otherwise appropriated, which
amount shall be used exclusively for payments to
needy blind persons, and in carrying out the pur-
poses of this chapter, to be paid by the state treas-
urer upon the warrant of the state auditor upon
the order of the North Carolina state commission
for the blind. These funds shall be in addition
to the amount annually appropriated to the North
Carolina state commission for the blind for car-
rying into effect the provisions of chapter fifty-
three, Public L,aws of North Carolina, one thou-
sand nine hundred thirty-five [§ 5126(1) et seq.],
by which said North Carolina state commission
for the blind was created.
Said commission is hereby authorized to ex-
pend, under the provisions of the Executive
Budget Act, such grants as shall be made for
paying the cost of administering this chapter by
the federal government under Title X of the So-
cial Security Act. (1937, c. 124, s. 14.)
Editor's Note.— Public I,aws 1935, c. 53, s. 12, made an
annual appropriation of twenty -five thousand dollars.
§ 5126(26). Termination of federal aid. — If for
any reason there should be a termination of fed-
eral aid as anticipated in this chapter, then and in
that event this chapter shall be ipso facto repealed
and rendered null and void: Provided, however,
such repeal shall not become effective or be in
force unless and until the governor of the state
of North Carolina has issued a proclamation duly
attested by the secretary of the state of North
Carolina to the effect that there has been a ter-
mination of such federal aid. In the event that
this chapter should be ipso facto repealed as here-
in provided, the state funds on hand shall be con-
verted into the general fund of the state for such
use as may be authorized by the director of the
budget, and the county funds accumulated by the
provisions of this chapter in the respective coun-
ties of the state shall be converted into the gen-
eral fund of such counties for such use as may
be authorized by the county commissioners. (1937,
c. 124, s. l5i/2.)
[ 170 ]
§ 5133(1)
CONTRACTORS
§ uee(jj)
CHAPTER 92
CONFEDERATE HOMES AND PENSIONS
Art. 1. Soldiers' Home
§ 5133(1). Provision for accommodations more
consistent with the health, comfort and happiness
of inmates. — When in the discretion of the direc-
tors of the soldiers' home, appointed and selected
under authority of Consolidated Statutes, five thou-
sand one hundred twenty-eight, it may be desirable
for the better care and attention of the said inmates
now in the soldiers' home, or who in the future
may be entitled under chapter ninety-two of the
Consolidated Statutes to the privileges of the sol-
diers' home, and for the furnishing to them of ac-
commodations more consistent with their health,
comfort and happiness, the said board of directors
may discontinue the use of the soldiers' home, es-
tablished at Raleigh for such purpose, and shall
furnish them such accommodations elsewhere
and such grants in aid as shall secure to them the
proper care and attention which in the opinion of
the board will be more conducive to their health,
welfare and happiness. (1937, c. 316.)
Art. 3. Pensions
Part 2. Persons Entitled to Pensions;
Classification and Amount
§ 5168 (j). Classification of pensions for sol-
diers and widows. —
Widows
Class "A." To the widows of ex-Confederate
soldiers who are blind in both eyes or totally
helpless, three hundred dollars ($300.00).
(1937, c. 318.)
Editor's Note. — The 1937 amendment struck out all of
paragraph entitled "Class A" under "Widows" in this sec-
tion and inserted the above in lieu thereof. The rest of
the section, not being affected by the amendment, is not
set out here.
§ 51G8(jl). Certain widows of Confederate sol-
diers placed on Class B pension roll. — All widows
of Confederate soldiers who have lived with such
soldiers for a period of ten years prior to the death
of such soldier, and where the death of the sol-
dier occurred since the year one thousand eight
hundred ninety-nine, shall, upon proper proof of
such facts, be placed upon the pension list in
Class B, and paid from the pension fund such
pensions as are allowed to other widows of Con-
federate soldiers in Class B: Provided, that no
payments shall be made to any widows of Con-
federate soldiers as hereinbefore referred to, ex-
cept and until they shall have qualified for said ben-
efits under and pursuant to the general state pen-
sion laws as modified hereby. (1937, cc. 181, 454.)
§ 5188 (kl). Removal from pension lists of per-
sons eligible for old age assistance. — All Class
"B" widows of Confederate veterans and all col-
ored servants of Confederate soldiers who are
eligible for old age assistance under act of the
general assembly passed at this session, from and
after the first day of June, one thousand nine hun-
dred thirty-seven, shall not be entitled to any pen-
sion provided, by the provisions of chapter ninety-
two, Consolidated Statutes, entitled "Confederate
Homes and Pensions," and any acts of the gen-
eral assembly amendatory thereof (§ 5127 et seq.),
or by virtue of any special or general law relat-
ing to pensions for widows of Confederate veter-
ans or colored servants of Confederate soldiers.
On or before the first day of June, one thousand
nine hundred thirty-seven, the county pension
board in every county in this state shall carefully
examine the pension roll in each county and shall
remove from the pension lists in said county all
Class "B" widows of Confederate veterans and
colored servants of Confederate soldiers who are
eligible for old age assistance under the aforesaid
acts of the general assembly. Ten days notice
shall be given to each pensioner of a hearing
which shall be had on each case before the order
is made removing such person from the pension
roll. At the time of said hearing the county pen-
sion board shall carefully consider the situation
of such pensioner, and if it clearly appears from
such examination that such pensioner is eligible
for old age assistance, and such fact is found by
them, such person shall be removed from the pen-
sion roll. If it should thereafter be determined
that such person was not found to be eligible for
old age assistance by the authority administering
said law, the name of such person shall be re-
stored to the said pension list by the county board
of pensions, and the full pension to which said
person was entitled, if the name had not been
withdrawn from said list, shall be paid.
The county pension board, after revising the
list of pensions in each county, shall promptly cer-
tify to the state board of pensions the revised list
of pensioners in each county, and the state board
of pensions shall certify the revised list of pen-
sioners to the state auditor, and the state auditor
shall transmit to the clerks of the superior court
in the several counties the correct revised list of
pensioners, with their postoffices, as allowed by
the state board of pensions. (1937, c. 227.)
CHAPTER 92A
CONTRACTORS
Art. 1. General Contractors
§ 5168(cc). Contractor defined. — For the pur-
pose of this article a general contractor is de-
fined to be one who, for a fixed price, commis-
sion, fee or wage, undertakes to bid upon or to
construct or superintend the construction of any
building, highway, sewer, grading or any improve-
ment or structure where the cost of the undertak-
ing is ten thousand dollars or more; and anyone
who shall bid upon or engage in constructing or
superintending the construction of any structures
or any undertakings or improvements above men-
tioned in the state of North Carolina costing ten
thousand dollars or more, shall be deemed and
held to have engaged in the business of general
contracting in the state of North Carolina. (1925,
c. 318, s. 1; 1931, c. 62, s. 1; 1937, c. 429, s. 1.)
Editor's Note. — The 1937 amendment made this section ap-
plicable to bidding upon construction.
§ 5168(jj). Records; roster of licensed con-
tractors.— The secretary-treasurer shall keep a
record of the proceedings of the board and a reg-
ister of all applicants for license showing for
each the date of application, name, qualifications,
place of business, place of residence, and whether
license was granted or refused. The books and
register of this board shall be prima facie evi-
[171]
§ 5168(kk)
CONTRACTORS
§ 5168(nn)
dence of all matters recorded therein. A roster
showing the names and places of business and
of residence of all licensed general contractors
shall be prepared by the secretary of the board
during the month of January of each year; such
roster shall be printed by the board out of funds
of said board as provided in section 5168 (ii). On
or before the first day of March of each year the
board shall submit to the governor a report of
its transactions for the preceding year, and shall
file with the secretary of state a copy of such re-
port, together with a complete statement of the
receipts and expenditures of the board, attested
by the affidavits of the chairman and the secre-
tary and a copy of the said roster of licensed gen-
eral contractors. (1925, c. 318, s. 8; 1937, c. 429,
s. 2.)
Editor's Note. — The 1937 amendment eliminated the re-
quirement for mailing roster of contractors to clerks.
§ 5168(kk). Application for license; examina-
tion; certificate; renewal. — Any one hereafter de-
siring to be licensed as a general contractor in
this state shall make and file with the board,
thirty days prior to any regular or special meet-
ing thereof, a written application on such form
as may then be by the board prescribed for ex-
amination by the board, which application shall
be accompanied by twenty dollars ($20.00). The
board may require the applicant to furnish evi-
dence of his ability, character and financial re-
sponsibility, and if said application is satisfactory
to the board, then the applicant shall be entitled
to an examination to determine his qualifications.
If the result of the examination of any applicant
shall be satisfactory to the board, then the board
shall issue to the applicant a certificate or limited
certificate to engage as a general contractor in the
state of North Carolina as provided in said certifi-
cate, or limited certificate. The board may class-
ify and limit the certificate granted to any appli-
cant with respect to the character or extent of
the work to be performed under such certificate
and license, and it shall be the responsibility of
the board, or the members of said board, to ascer-
tain from reliable sources whether or not the past
performance record of an applicant is good, and
whether or not he has the reputation of paying
his labor and material bills, as well as carrying
out other contracts that he may have entered in-
to. Any one failing to pass such examination
may be re-examined at any regular meeting of the
board without additional fee. Certificate of li-
cense shall expire on the last day of December
following its issuance or renewal, and shall be-
come invalid on that date unless renewed, sub-
ject to the approval of the board. Renewal may
be effective any time during the month of January
by the payment of a fee of ten dollars ($10.00)
to the secretary of the board. (1925, c. 318, s. 9;
1931, c. 62, s. 2; 1937, c. 429, s. 3.)
Editor's Note. — The 1937 amendment struck out the
former section and inserted the above in lieu thereof.
Prior to this amendment, Public Laws 1937, c. 328.
amended the section by adding at the end the following":
"Provided, the licensing board may for good cause hear and
pass upon any application for license in a period of less
than thirty days from the filing of said application."
§ 5168(11). Revocation of license; charges of
fraud, negligence, incompetency, etc.; hearing
thereon; notice of charges; reissuance of certifi-
cate.— The board shall have the power to revoke
[1
the certificate of license of any general contractor
licensed hereunder who is found guilty of any
fraud or deceit in obtaining a license, or gross
negligence, incompetency or misconduct in the
practice of his profession, or wilful violation of
any provisions of this article. Any person may
prefer charges of such fraud, deceit, negligence or
misconduct against any general contractor li-
censed hereunder; such charges shall be in writ-
ing and sworn to by the complainant and sub-
mitted to the board. Such charges, unless dis-
missed without hearing by the board as unfounded
or trivial, shall be heard and determined by the
board within thirty days after the date in which
they were preferred. A time and place for such
hearing shall be fixed by the board and held in
the county in which said charges originated or
such other county as the board may designate. A
copy of the charges, together with the notice of
the time and place of hearing, shall be legally
served on the accused at least fifteen days before
the fixed date for the hearing, and in the event
that such service cannot be effected fifteen days
before such hearing, then the date of hearing and
determination shall be postponed as may be nec-
essary to permit the carrying out of this condi-
tion. At said hearing the accused shall have the
right to appear personally and by counsel and to
cross-examine witnesses against him, her or them,
and to produce evidence of witnesses in his, her
or their defense. If after said hearing at least four
members of the board vote in favor of finding the
accused guilty of any fraud or deceit in obtaining
license, or of gross negligence, incompetency or
misconduct in practice the board shall revoke the
license of the accused.
The board may reissue a license to< any person,
firm or corporation whose license has been re-
voked: Provided, three or more members of the
board vote in favor of such reissuance for reasons
the board may deem sufficient.
The board shall immediately notify the secre-
tary of state of its finding in the case of the revo-
cation of a license or of the reissuance of a re-
voked license.
A certificate of license to replace any certificate
lost, destroyed or mutilated may be issued sub-
ject to the rules and regulations of the board.
(1925, c. 318, s. 10; 1937, c. 429, s. 4.)
Editor's Note. — The 1937 amendment so changed this sec-
tion that a comparison here is not practical.
§ 5168(mm). Certificate evidence of license. —
The issuance of a certificate of license or limited
license by this board shall be evidence that the
person, firm or corporation named therein is en-
titled to all the rights and privileges of a licensed
or limited licensed general contractor while the
said license remains unrevoked or unexpired.
(1925, c. 318, s. 11; 1937, C 429, s. 5.)
Editor's Note. — The 1937 amendment inserted the words
"or limited license" in this section.
§ 5168(nn). Unauthorized practice of contract-
ing; impersonating contractor; false certificate;
giving false evidence to board; penalties. — Any
person, firm or corporation not being duly author-
ized who shall contract for or bid upon the con-
struction of any of the projects or works enumer-
ated in section 5168(cc), without having first com-
plied with the provisions hereof, or who shall at-
tempt to practice general contracting in this state,
72 1
§ 5168(oo)
CONTRACTORS
§ 5168(hhh)
except as provided for in this article, and any
person, firm, or corporation presenting or at-
tempting to file as his own the licensed certifi-
cate of another or who shall give false or forged
evidence of any kind to the board or to any mem-
ber thereof in maintaining a certificate of license
or who falsely shall impersonate another or who
shall use an expired or revoked certificate of li-
cense, and any architect or engineer who receives
or considers a bid from any one not properly li-
censed under this chapter, shall be deemed guilty
of a misdemeanor and shall for each such of-
fense of which he is convicted be punished by a
fine of not less than five hundred dollars or im-
prisonment of three months, or both fine and im-
prisonment in the discretion of the court. And
the board may, in its discretion, use its funds to
defray the expense, legal or otherwise, in the
prosecution of any violations of this law. (1925,
c. 318, s. 12; 1931, e. 62, s. 3; 1937, c. 429, s. 6.)
Editor's Note. — The 1937 amendment made an insertion
in the first part of this section, and added the last sen-
tence.
§ 5168 (oo). Regulations as to issue of building
permits. — Any person, firm or corporation, upon
making application to the building inspector or
such other authority of any incorporated city,
town or village in North Carolina charged with
the duty of issuing building or other permits for
the construction of any building, highway, sewer,
grading or any improvement or structure where
the cost thereof is to be ten thousand dollars
($10,000.00) or more, shall, before he be entitled
to the issuance of such permit, furnish satisfac-
tory proof to such inspector or authority that he
is duly licensed under the terms of this article
to carry out or superintend the same, and that he
has paid the license tax required by the Reve-
nue Act of the state of North Carolina then in
force so as to be qualified to bid upon or contract
for the work for which the permit has been applied;
and it shall be unlawful for such building inspec-
tor or other authority to issue or allow the issu-
ance of such building permit unless and until the
applicant has furnished evidence that he is either
exempt from the provisions of this article or is
duly licensed under this article to carry out or
superintend the work for which permit has been
applied; and further, that the applicant has paid
the license tax required by the State Revenue Act
then in force so as to be qualified to bid upon or
contract for the work covered by the permit;
and such building inspector, or other such author-
ity, violating the terms of this section shall be
guilty of a misdemeanor and subject to a fine of
not more than fifty dollars ($50.00). (1925, c.
318, s. 13; 1931, c. 62, s. 4; 1937, c. 429, s. 7.)
Editor's Note. — Prior to the 1937 amendment this section
related to exemptions from article.
§ 5168(pp). Copy of article included in speci-
fications; bid not considered unless contractor li-
censed ; notification to secretary of board. — All
architects and engineers preparing plans and
specifications for work to be contracted in the
state of North Carolina shall include in their in-
vitations to bidders and in their specifications a
copy of this article or such portions thereof as
are deemed necessary to convey to the invited
bidder, whether he be a resident or non-resident
of this state and whether a license has been is-
[1
sued to him or not, the information that it will
be necessary for him to show evidence of a li-
cense before his bid is considered. Any person,
firm or corporation desiring to bid upon or con-
tract for any work or improvement enumerated
in section 5168 (ec) which ' shall cost Seven
thousand five hundred dollars ($7,500.00) or more
shall, at least twenty-four hours before making
such bid or entering into such contract, notify the
secretary of said board in writing of intention to
make such bid or contract. (1925, c. 318, s. 14;
1937, c. 429, s. 8.)
Editor's Note. — The 1937 amendment added the second sen-
tence of this section.
Art. 3. Tile Contractors
§ 5168 (eee). License required of tile contrac-
tors.— -Any person, firm, or corporation desiring
to engage in tile contracting within the state of
North Carolina as defined in this article shall
make application in writing for license to the
North Carolina licensing board for tile contrac-
tors: Provided, that the provisions of this article
shall not apply to state colleges, hospitals and
other state institutions. (1937, c. 86, s. 1.)
§ 5168 (fff). Tile contracting defined.— Engag-
ing in tile contracting for the purpose of this arti-
cle is defined to mean any person, firm, or cor-
poration who for profit undertakes to lay, set, or
install ceramic floor and wall tiling in buildings
for private or public use. (1937, c. 86, s. 2.)
§ 5168(ggg). Licensing board created; member-
ship; appointment and removal. — The North Car-
olina licensing board for tile contractors shall
consist of five members, each of whom shall be
a reputable tile contractor residing in the state
of North Carolina who has been engaged in the
business of tile contracting for at least five years.
The members of the first board shall be appointed
within sixty days after the ratification of this arti-
cle for terms of one, two, three, four, and five
years by the governor, and the governor in each
year thereafter shall appoint one licensed tile
contractor to fill the vacancy caused by the ex-
piration of the term of office, the term of such
new member to be for five years. If vacancy
shall occur in the board for any cause the same
shall be filled by appointment of the governor.
The governor shall have the power to remove
from office any member of said board for incapac-
ity, misconduct, or neglect of duty. (1937, c. 86,
s. 3.)
§ 5168(hhh). Oath of office; organization;
meetings; authority; compensation. — The mem-
bers of said board shall qualify by taking an oath
of office in writing to be filed with the secretary of
state to uphold the constitution of the United
States and the constitution of North Carolina and
to properly perform the duties of his office. The
board shall elect a president, vice-president, and
secretary-treasurer. A majority of the members of
the board shall constitute a quorum. Regular
meetings shall be held at least twice a year, at
such time and place as shall be deemed most con-
venient. Due notice of such meetings shall be
given to all applicants for license in such manner
as the by-laws may provide. The board may pre-
scribe regulations, rules, and by-laws for its own
proceedings and government and for the examina-
73 1
§ 5168(iii)
CONTRACTORS
§ 5168(ppp)
tion of applicants not in conflict with the laws of
North Carolina. Special meetings may be held
upon a call of three members of the board. Each
member of the (board shall receive for his services
the sum of ten ($10.00) dollars per day for each
and every day spent in the performance of his du-
ties, and shall be reimbursed for all necessary ex-
penses incurred in the discharge of his duties.
(1937, c. 86, s. 4.)
§ 5168(iii). Secretary-treasurer, duties and bond;
seal; annual report to governor. — It shall be the
duty of the secretary-treasurer to keep a record of
all proceedings of the board and all licenses issued,
and to pay all necessary expenses of the board out
of the funds collected, and he shall give such bond
as the board shall direct. All funds in excess of
the sum of one hundred ($100.00) dollars remain-
ing in the hands of the secretary-treasurer, after
all of the expenses of the board for the current
year have been paid, shall be paid over to the
Greater University of North Carolina for the use
of the ceramic engineering department of North
Carolina State College to be devoted by it to the
development of the safe, proper, and sanitary uses
of tile. The board shall adopt a seal to be affixed
to all of its official documents, and shall make an
annual report of its proceedings to the governor
on or before the first day of March of each year,
which report shall contain an account of all mon-
eys received and disbursed. (1937, c. 86, s. o.)
§ 5168(jjj). Applications for examinations; fee;
certificate of registration. — Any person desiring to
be examined by said board must fill out and swear
to an application furnished tby the board at least
two weeks prior to the holding of an examination.
Each applicant upon making application shall pay
to the secretary-treasurer of the board a fee of
twenty-five ($25.00) dollars. All persons success-
fully passing such examination shall be numbered
and registered as licensed to engage in the busi-
ness of tile contracting and shall receive a certifi-
cate of such registration, which certificate shall
expire on the thirty-first day of December follow-
ing its issuance or renewal. (1937, c. 86, s. 6.)
§ 5168(kkk). Fee for annual renewal of regis-
tration; license revoked for default; penalty for re-
instatement.— Every licensed tile contractor who
desires to continue in business in this state shall
annually, on or before the first day of January of
each year, pay to the secretary-treasurer of the
board the sum of fifty ($50.00) dollars for which
he shall receive a renewal of such registration, and
in case of the default of such registration by any
person the license shall be revoked. Any licensed
tile contractor whose license has been revoked for
failure to pay the renewal fee, as herein provided,
may apply to have the same regranted upon pay-
ment of all renewal fees that should have been
paid, together with a penalty of ten ($10.00) dol-
lars. (1937, c. 86, s. 7.)
§ 5108(111). Power of board to revoke or sus-
pend licenses; charges; notice and opportunity for
hearing; appeal. — The board shall have the power
after hearing to revoke or suspend the license of
any tile contractor upon satisfactory proof that
such license was secured by fraud or deceit prac-
ticed upon the board, or upon satisfactory proof
that such tile contractor is guilty of gross negli-
gence, incompetency, or inefficiency in carrying on
the business of tile contracting. Each charge
against any contractor submitted to the board
shall be in writing and sworn to by the complain-
ant: Provided, however, that before any license
shall be revoked or suspended the holder thereof
shall have notice of the specific charge or charges
preferred, and at a date specified in said notice, at
least thirty days after legal service thereof, be
given public hearing, and have an opportunity to
appear, cross-examine witnesses, and to produce
evidence. Any person being aggrieved by the ac-
tion of the board shall have the right of appeal to
the superior court. (1937, c. 86, s. 8.)
Editor's Note. — While the provision as to examination of
applicants refers only to those who were not so engaged at
the time the statute went into effect, the provisions as to
revocation refer to all. 15 N. C. Law Rev., No. 4, p. 326.
§ 5168 (mmm). No examination required of pres-
ent contractors. — All persons, firms, or corpora-
tions now actively engaged in tile contracting in
the state of North Carolina shall, upon filing affi-
davit with the board, receive license without ex-
amination upon payment of the annual license fee.
(1937, c. 86, s. 9.)
§ 5168 (nnn). License to one member of firm,
etc., sufficient; no license required of employees. —
Any firm, partnership, or corporation may engage
in tile contracting in this state: Provided, one
member of said firm, partnership, or corporation is
a licensed contractor. No license shall be required
of any mechanic or employee of a licensed tile con-
tractor performing duties for the employer. (1937,
c. 86, s. 10.)
§ 5168 (ooo). Penalty for misrepresentation or
fraud in procuring or maintaining license certifi-
cate.— Any person, firm, or corporation not being
duly licensed to engage in tile contracting in this
state as provided for in this article, and any per-
son, firm, or corporation presenting as his own the
license certificate of another or who shall give
false or forged evidence of any kind to the board
or any member thereof in maintaining a certificate
of license, or who shall falsely impersonate an-
other, or who shall use an expired or revoked cer-
tificate of license, or an architect, engineer or con-
tractor who receives or considers a bid from any
one not properly licensed under this article, shall
be guilty of misdemeanor, and for each offense of
which he is convicted be punished by a fine of
not less than two hundred ($200.00) dollars, or by
imprisonment of not less than two months or both
fined and imprisoned in the discretion of the court.
(1937, c. 86, s. 11.)
Art. 4. Electrical Contractors
§ 5168(ppp). Board of examiners created; mem-
bers appointed and officers; terms; principal office;
meetings; quorum; compensation and expenses. —
A state board of examiners of electrical contrac-
tors is hereby created, which shall consist of the
state electrical engineer, wrm shall act as chairman
of the board, the secretary of the association of
electrical contractors of North Carolina, and three
other members to be appointed by the governor as
follows: One from the faculty of the engineering
school of the Greater University of North Caro-
[174]
§ 51G8(qqq)
CONTRACTORS
§ 5168(ttt)
lina, one person who is serving as chief electrical
inspector of a municipality in the state of North
Carolina, and one representative of a firm, part-
nership or corporation located in the state of North
Carolina and engaged in the business of electrical
contracting. Of the three appointed members one
shall be appointed for a term of one year, one for
a term of two years, and one for a term of three
years, and until their respective successors are
elected and qualified; and thereafter each appoint-
ment shall be for a term of three years. The prin-
cipal office of the board shall be at such place as
shall be designated by a majority of the members
thereof. The board of examiners shall hold regu-
lar meetings quarterly and may hold special meet-
ings on call of the chairman. They shall annually
appoint and at their pleasure remove a secretary-
treasurer, who need not be a member of the board,
and whose duties shall be prescribed and whose
compensation shall be fixed by the board. Three
members of the board shall constitute a quorum.
The appointive members of the board shall be en-
titled to receive the sum of seven dollars ($7.00)
and actual and necessary expenses for each day
actually devoted to the performance of their du-
ties under this article: Provided, however, that
none of the expenses of said board or the compen-
sation or expenses of any officer thereof or any
employee shall ever be paid or payable out of the
treasury of the state of North Carolina; and said
board and no officer or employee thereof shall
have any power or authority to make or incur any
expense, debt or other financial obligation binding
upon the state of North Carolina. (1937, c. 87,
8.1.)
§ 5168(qqq). Board to appoint secretary-treas-
urer within thirty days; bond required; oath of
membership. — The board of examiners of electrical
contractors shall within thirty days after its ap-
pointment meet at the time and place designated
by the chairman and appoint a secretary-treasurer.
The secretary-treasurer shall give a bond approved
by the board for the faithful performance of his
duties in such form as the board may from time
to time prescribe. The board shall have a com-
mon seal and shall formulate rules to govern its
actions and may take testimony and proof con-
cerning all matters within its jurisdiction. Before
entering upon the performance of their duties here-
under each member of the board shall take and
file with the secretary of state an oath in writing
to properly perform the duties of his office as a
member of said board, and to uphold the constitu-
tion of North Carolina and the constitution of the
United States. (1937, c. 87, s. 2.)
§ 5l68(rrr). Seal for board; duties of secretary-
treasurer; surplus funds; contingent or emergency
fund. — The board shall adopt a seal for its own
use. The seal shall have inscribed thereon the
words "board of examiners of electrical contrac-
tors, state of North Carolina," and the secretary
shall have charge and custody thereof. The sec-
retary-treasurer shall keep a record of the pro-
ceedings of said board and shall receive and ac-
count for all moneys derived under the operations
of this article. Any funds remaining in the hands
of the secretary-treasurer to the credit of the board
after the expenses of the board for the current
[1
year have been paid shall be paid over to the elec-
trical engineering department of the Greater Uni-
versity of North Carolina to be used for electrical
experimentations: Provided, however, the board
shall have the right to retain as a contingent or
emergency fund ten per cent of such gross receipts
in each year of its operation. (1937, c. 87, s. 3.)
§ 5168(sss). Board to give examinations and is-
sue licenses. — It shall be the duty of the board of
examiners of electrical contractors to receive all
applications for licenses filed by persons, or repre-
sentatives of firms or corporations seeking to en-
ter upon or continue in the electrical contracting
business within the state of North Carolina, as
such business is herein defined, and upon proper
qualification of such applicant to issue the license
applied for; to prescribe the conditions of exami-
nation of, and, subject to the provisions of this ar-
ticle, to give examinations to all persons who are
under the provisions of this article required to
take such examination. (1937, c. 87, s. 4.)
§ 5168(ttt). Persons required to obtain licenses;
examination required; licenses for firms or corpo-
rations.— No- person, firm or corporation shall en-
gage in the business of installing, maintaining, al-
tering or repairing within the state of North Caro-
lina any electric wiring, devices, appliances or
equipment for which a permit is now or may here-
after be required by the statutes of the state of
North Carolina, or by municipal or county ordi-
nances in the county in which such work is under-
taken, dealing with the erection and inspection of
buildings and fire protection and electrical installa-
tion unless such person, firm or corporation shall
have received from the board of examiners of elec-
trical contractors an electrical contractor's license:
Provided, however, that the provisions of this ar-
ticle shall not apply (a) to the installation, con-
struction, or maintenance of power systems for
the generation and primary and secondary distri-
bution of electric current ahead of the customer's
meter; (b) to the installation, construction, main-
tenance, or repair of telephone, telegraph, or sig-
nal systems by public utilities; (c) to any me-
chanic employed by a licensee of this board; (d)
to the installation, construction or maintenance of
electrical equipment and wiring for temporary use
by contractors in connection with the work of con-
struction; (e) to the installation, construction,
maintenance or repair of electrical wiring, devices,
appliances or equipment by persons, firms or cor-
porations, upon their own property, who maintain
in regular and full-time employment electricians,
when such electricians are employed and engaged
exclusively by such persons, firms or corporations;
(f) to the installation, construction, maintenance
or repair of electrical wiring, devices, appliances
or equipment by state institutions and private edu-
cational institutions which maintain a private elec-
trical department. No license shall be issued by
said board without an examination of the applicant
for the purpose of ascertaining his qualifications
for such work, but no such examination shall be
required for the annual renewal of such license:
Provided, however, that persons, firms or corpora-
tions residing in the state of North Carolina at the
time of the ratification of this article, who have
paid the license fees required of electrical contrac-
75]
§ 5168 (uuu)
CONTRACTORS
§ 5168(bbbb)
tors by the State Revenue Act of one thousand
nine hundred and thirty-five, upon proper certifi-
cation or establishment of such fact, shall be
granted a license by the board of examiners under
this article without examination. Firms or corpo-
rations shall be eligible to secure licenses from the
board of examiners provided they have in their re-
spective organizations at least one person duly
qualified as an electrical contractor under the pro-
visions of this article. No license or renewal of
any license shall be issued to any applicant until
the fees herein prescribed shall have been paid.
(1937, c. 87, s. 5.)
§ 5l68(uuu). Fees for licenses. — Before a license
is granted to any applicant, and before any expir-
ing license is renewed, the applicant shall pay to
the board of examiners of electrical contractors a
fee in such an amount as is herein specified for the
license to be granted or renewed as follows:
For a Class 1, Electrical Contractor's Li-
cense, state-wide $25.00
For a Class 2, Electrical Contractor's Li-
cense, for one county only 5-00
(1937, c. 87, s. 6.)
§ 5168 (vvv). Licenses expire on June 30th,
following issuance; renewal; fees used for admin-
istrative expense. — Each license issued hereunder
shall expire on June thirtieth following the date
of its issuance, and shall be renewed by the board
of examiners of electrical contractors upon appli-
cation of the holder of the license and payment of
the required fee at any time within thirty days
before the date of such expiration. Licenses re-
newed subsequent to the date of expiration there-
of may in the discretion of the board be subject
to a penalty not exceeding ten per cent. The fees
collected for licenses under this article shall be
used for the expenses of the board of examiners
in carrying out the provisions of this article, sub-
ject to the provisions herein made with reference
to payment of surplus to the electrical engineering
department of the Greater University of North
Carolina for electrical experimental purposes.
(1937, c. 87, s. 7.)
§ 5168 (www). Examination before local ex-
aminer. — In order that applicants for licenses
hereunder who are by the provisions of this article
required to take an examination before the is-
suance thereof shall not be subject to any un-
reasonable inconvenience in connection therewith,
the board of examiners of electrical contractors
may, and upon the request of the board of com-
missioners of any county shall delegate to the
electrical inspector of the county in which such
applicant resides, or if there be no county elec-
trical inspector, then to the electrical inspector of
any municipality therein, the authority to con-
duct examinations of such applicant or applicants
residing in such county, such examination, how-
ever, to be as prescribed by the board of exam-
iners. In such an event the local examiner here-
in provided for shall transmit to the board of ex-
aminers of electrical contractors the results of
such examination, and, if approved by the board,
licenses on the basis of such examination shall be
issued to the applicants upon the payment of the
fees herein prescribed. (1937, c. 87, s. 8.)
§ 5168(xxx). License signed by chairman and
secretary-treasurer under seal of board; display
in place of business required; register of licenses;
records. — Licenses issued hereunder shall be
signed by the chairman and the secretary-treasurer
of the board of examiners, under the seal of the
board. Every holder of license shall keep his cer-
tificate of license displayed in a conspicuous place
in his principal place of business. The secretary
of the board shall keep a register of all licenses to
electrical contractors, which said register shall be
open during the ordinary business hours of pub-
lic inspection. The board of examiners shall keep
minutes of all of its proceedings and an accurate
record of its receipts and disbursements, which
record shall be audited at the close of each fiscal
year by a certified public accountant, and within
thirty days after the close of each fiscal year a
summary of its proceedings and a copy of the
audit of its books shall be filed with the governor
and the treasurer of the state. (1937, c. 87, s. 9.)
§ 5168(yyy). Licenses not assignable or trans-
ferable; suspension or revocation. — No license is-
sued in accordance with the provisions of this
article shall be assignable or transferable. Any
such license may, after hearing, be suspended for
a definite length of time or revoked by the board
of examiners if the person, firm or corporation
holding such license shall wilfully or by reason of
incompetence violate any of the statutes of the
state of North Carolina, or any ordinances of any
municipality or county relating to the installation,
maintenance, alteration or repair of electric wir-
ing, devices, appliances or equipment. (1937, c.
87, s. 10.)
Editor's Note. — While the provision as to examination of
applicants refers only to those who were not so engaged
at the time the statute went into effect, the provision as
to revocation refers to all. There is no provision for an
appeal to the superior court, but an electrical contractor
whose license is suspended or revoked undoubtedly has
such a right. 15 N. C. Law Rev., No. 4, pp. 326, 327.
§ 51 68 (zzz). License does not relieve com-
pliance with codes or laws. — Nothing in this article
shall relieve the holder or holders of licenses is-
sued under the provisions hereof from complying
with the building or electrical codes or statutes or
ordinances of the state of North Carolina, or of
any county or municipality thereof, now in force
or hereafter enacted. (1937, c. 87, s. 11.)
§ 5168(aaaa). Responsibility for negligence;
non-liability of board. — Nothing in this article
shall be construed as relieving the holder of any
license issued hereunder from responsibility or
liability for negligent acts on the part of such
holder in connection with electrical contracting
work; nor shall the board of examiners of elec-
trical contractors be accountable in damages, or
otherwise, for the negligent act or acts of any
holder of such license. (1937, c. 87, s. 12.)
§ 5168(bbbb). Penalty for violation of article.
— Any person, firm or corporation who shall vio-
late any of the provisions of this article, or who
shall engage or undertake to engage in the busi-
ness of electrical contracting as herein defined,
without first having obtained a license under the
provisions of this article, shall be guilty of a mis-
demeanor and upon conviction thereof shall be
subject to a fine of not less than twenty-five dol-
lars ($25.00) or more than fifty dollars ($50.00)
for each offense. Conviction of a violation of this
article on the part of a holder of a ilcense issued
[ 176
§ 5175(d)
CO-OPERATIVE ORGANIZATIONS
§ 5182
hereunder shall automatically have the effect of
suspending such license until such time as it shall
have been reinstated by the board of examiners of
electrical contractors. (1937, c. 87, s. 13.)
CHAPTER 93
CO-OPERATIVE ORGANIZATIONS
SUBCHAPTER I. BUILDING AND LOAN
ASSOCIATION
Art. 1. Organization
§ 5175(d). Conversion of federal association in-
to state association. — Any federal savings and loan
association organized and existing under the Home
Owners Loan Act of one thousand nine hundred
and thirty-three, as amended, may convert into a
building and loan association, pursuant to the pro-
visions of this chapter, with the same force and
effect as though originally incorporated under the
provisions of this sub-chapter, by complying with
the acts of congress and the requirements of fed-
eral regulatory authority, and also by following
the procedure as set out below:
1. The directors of such federal savings and
loan association shall submit a plan of conversion
to the federal home loan bank board (hereinafter
referred to as "board") or other federal regulatory
authority, and also to the insurance commissioner
of the state of North Carolina. When such plan
has been approved, either with or without amend-
ment by both of said authorities, then said plan
shall be submitted to the members of such asso-
ciation as provided in the next sub-section.
2. A meeting of the members shall be held upon
not less than ten days' written notice to each mem-
ber, served personally or sent by mail to the last
known address of such member, postage prepaid,
such notice to contain a statement of the time,
place and purpose for which such meeting is
called. It shall be regarded as sufficient notice of
the purpose of said meeting if the call contain
the following statement: "The purpose of said
meeting being to consider the matter of the con-
version of this association into a building and
loan association, pursuant to the provisions of the
laws of the state of North Carolina." The secre-
tary or other officer of the association shall make
proof by affidavit at such meeting of the due serv-
ice of the notice or call for said meeting.
3. At the meeting of the members of such as-
sociation, called and held as above provided, such
members may, by affirmative vote of fifty-one per
cent or more of members present, in person or
by proxy, declare by resolution the determina-
tion to convert said association into a build-
ing and loan association operating under the laws
of this state. A copy of the minutes of the pro-
ceedings of such meeting of the members, cer-
tified by the president or vice-president and secre-
tary or assistant secretary of the association, shall
be filed with the federal home loan bank board
within five days after such meeting. Such certi-
fied copy, when so filed, shall be presumptive evi-
dence of the holding and the action of such meet-
ing.
4. Within thirty days after the approval of said
proceedings by the board the officers of said as-
sociation shall file with the clerk of the superior
court of the county where such association is de-
signed to act a copy of the certificate of incorpora-
tion of such association, signed by at least seven
members, to be recorded in the office of such
clerk. Such certificate of incorporation shall con-
form to the provisions of the laws of this state.
The clerk shall certify a copy of the certificate to
the insurance commissioner, and shall not issue or
record the same until duly authorized to do so by
the insurance commissioner. Upon receipt of a
copy of the certificate of incorporation the insur-
ance commissioner shall at once examine into the
facts connected with the conversion of such as-
sociation, and, if it appears that such association
if converted will be lawfully entitled to com-
mence business as a building and loan association
pursuant to the laws of this state, the insurance
commissioner shall so certify to the clerk of the
court in the county in which the association will
be located, who shall thereupon issue and record
such certificate of incorporation. Upon the is-
suance and recordation of such certificate of in-
corporation the association shall file with the
board a certified copy of same. Thereupon the as-
sociation shall cease to be a federal savings and
loan association and shall be deemed to be con-
verted into a building and loan association under
the laws of this state, whose corporate existence
shall be deemed then to begin.
5. At the time when the corporate existence of
said state association begins all the property of
the said federal association, including all its
rights, title and interest in and to all property of
whatsoever kind, whether real, personal or mixed,
and things in action, and every right, privilege,
interest and asset of any conceivable value or ben-
efit then existing, belonging or pertaining to it,
or which would inure to it, shall immediately by
act of law and without any conveyance or trans-
fer, and without any further act or deed, be vested
in and become the property of such state associa-
tion, which shall have, hold and enjoy the same
in its own right as fully and to the same extent
as if the same was possessed, held or enjoyed by
said federal association; and such state associa-
tion shall be deemed to be a continuation of the
entity and of the identity of said federal associa-
tion, operating under and pursuant to the laws
of this state, and all the rights, obligations and
relations of said federal association to or in re-
spect to any person, estate, or creditor, depositor,
trustee or beneficiary of any trust, and in or in
respect to any executorship or trusteeship or other
trust or fiduciary function, shall remain unim-
paired, and such state association, as of said be-
ginning of its corporate existence, shall by op-
eration of this section succeed to all such rights,
obligations, relations and trusts, and the duties
and liabilities connected therewith, and shall exe-
cute and perform each and every such trust and
relation in the same manner as if such state as-
sociation had itself assumed the trust or relation,
including the obligations and liabilities connected
therewith. (1937, c. 12.)
Art. 3, Loans
§ 5182. Manner of making loans; security re-
quired.— At such times as the by-laws shall desig-
nate, not less frequently than once a month, the
board of directors shall hold meetings at which
the funds in the treasury applicable for loans may
be loaned: Provided, that between meetings of
N. C. Supp.— 12
[177]
§ 5182(a)
DRY CLEANERS
§ 5382(1)
the board of directors not less than three members
of an executive committee authorized and ap-
pointed by the board may by the unanimous vote
of the members present make such loans. Any
loans so made or approved by the executive com-
mittee shall be reported to the board of directors
at its next meeting. No loans shall be made by
such association to any one not a member thereof.
Borrowers shall be required to give real estate
security, either by way of mortgage or deed of
trust, subject only to mortgages or deeds of trust
to secure loans made by the association and undue
taxes and special assessment: Provided, that the
shares of any such association may be received
as security for a loan on such shares of an amount
not to exceed ninety per centum of the amount
paid in as dues on such shares: Provided further,
that bonds issued as general obligations of the
United States government, and bonds issued as
general obligations of the State of North Carolina
may be received as security to an amount not ex-
ceeding ninety per centum of the face value of
such bonds. (Rev., s. 3890; 1905, c. 435, s. 8; 1907,
c. 959, s. 4; 1919, c. 249; 1937, c. 11.)
Editor's Note. — The 1937 amendment so changed this sec-
tion that a comparison here is not practical.
§ 5182(a). Direct reduction of principal. — The
board of directors of any building and loan associa-
tion, heretofore or hereafter organized under the
laws of this state, may, unless specifically pro-
hibited by the certificate of incorporation, consti-
tution or by-laws of the association, by resolution
or by-law, permit borrowing members to repay
their indebtedness by a direct monthly or periodi-
cal reduction of principal method. In every such
case the borrower shall in writing make such
agreement with the association relative to the re-
payment of his indebtedness as the directors may
require. The agreement shall stipulate that the
borrower or debtor shall make periodical pay-
ments, not less frequently than once a month, un-
til such mortgage indebtedness, advances, if any,
made by the association for payment of taxes,
assessments, insurance premiums and other pur-
poses, as may be owing from the borrower to the
association, with interest thereon, shall have been
fully paid. The balance of any loan account un-
der such direct reduction of principal method shall
be determined monthly, quarterly or semiannually,
in order to ascertain the amount then necessary
to satisfy in full the mortgage obligation, and
when so ascertained such amount shall be the
amount due upon said loan at said time to said
association or any representative or successor
thereof. Any association permitting such method
of repayment may adopt a plan by which the in-
terest shall be computed periodically on the pre-
ceding balance, and such interest shall be added
to that preceding balance, together with any and
all advances and other charges above enumerated
made for the benefit of the borrower during the
said interest period, and then deducting from the
total any and all payments made by the borrower
to the association during said period, or since the
preceding balance was set up. 1
All payments made on a loan under such plan
of direct periodical reduction shall be applied first
to interest, and then to the principal of advances
made for the account of the borrower and charged
thereto, and to the principal of the loan. The
board of directors may adopt any other direct
periodic reduction of principal plan that will re-
quire complete repayment of such loans: Pro-
vided, no plan of payment shall be adopted that
will not mature and pay off the loan within twenty
years from the date of the making thereof: Pro-
vided further, the board of directors may authorize
the renewal or extension of the time of repayment
of any loan theretofore made. No association
shall make any loan upon this plan to any person
unless he be a member of such association. (1937,
c. 18.)
CHAPTER 94
DRAINAGE
SUBCHAPTER III. DRAINAGE DISTRICTS
Art. 5. Establishment of Districts
§ 5336(a). Local: Advancements by Pitt county.
Editor's Note. — For act making this section applicable to
Edgecombe county, see Public L,aws 1937, c. 278.
Art. 8. Assessments and Bond Issue
§ 5352. Assessment and payment; notice of
bond issue.
Cited in Board of Drainage Com'rs v. Jarvis, 211 N. C.
690, 191 S. E- 514.
§ 5353. Failure to pay deemed consent to bond!
issue.
Cited in Board of Drainage Com'rs v. Jarvis, 211 N. C.
690, 191 S. E. 514.
§ 5359. Drainage bonds received as deposits.
Editor's Note.— Public Laws 1937, c. 334, amended this
section by striking out the proviso and inserting in lieu
thereof the following: "And any county is authorized to
invest its sinking funds in such bonds issued by any drain-
age district: Provided, that the attorney general shall have
approved the form of said bonds, to apply to Edgecombe
and Pitt counties only."
CHAPTER 94A
DRY CLEANERS
§ 5382(1). Definitions. — When used in this
chapter, unless the context otherwise requires, the
following definitions shall apply:
a. "State dry cleaners commission" means the
state agency created by this chapter for the dry
cleaning, pressing, and/or dyeing business.
b. "Cleaning and dyeing business" includes any
place or vehicle where the services of dry cleaning,
wet cleaning as a process incidental to dry clean-
ing, dyeing, spotting, and/or finishing any fabric
is rendered for hire, or is sold, resold or offered
for sale or resale; and also includes the acceptance
of any clothing or other fabric to be dry cleaned,
dyed and/or pressed, and where said work is
actually done and performed by other parties than
those accepting it.
c. "Pressing" means the pressing of clothes or
other fabric by whatever manner used; and shall
include those persons, associations of persons,
firms or corporations who accept clothes or other
fabric for pressing, when the actual pressing is
done and performed by other parties.
d. "Person" means any person, firm, corpora-
tion or association.
e "Retail outlet" includes any establishment or
[178]
§ 5382(2)
DRY CLEANERS
§ 5382(3)
vehicle where dry cleaning, dyeing and/or press-
ing service is sold, or offered for sale, directly to
the consumer, but where none of the processes of
dry cleaning, dyeing and/or pressing is actually
performed by such retail outlets and where the
retail outlets are not owned or controlled by a
retail or wholesale processing establishment.
f. "Press shop" includes any dry cleaning, dye-
ing and/or pressing establishment owning or hav-
ing pressing equipment for the purpose of pressing
clothes or other fabrics by whatever manner used,
but where the actual process of dry cleaning and/
or dyeing is not performed on the premises but
is contracted out to a wholesale plant.
g. "Retail plant" includes any person, firm, cor-
poration or association operating a cleaning and/or
dyeing establishment performing dry cleaning,
dyeing and pressing for sale directly to the con-
sumer.
h. "Wholesale plant" includes any persons, as-
sociations of persons, firms or corporations operat-
ing a dry cleaning and/or dyeing establishment
performing dry cleaning, dyeing and/or pressing
for sale directly to the consumer and to retail out-
lets and to pressing shops as herein defined.
i. "Non-resident outlets" includes any place or
vehicle where the services of dry cleaning, wet
cleaning as a process incidental to dry cleaning,
dyeing, spotting and/or finishing any fabric is
rendered for hire or is sold, resold, or offered for
sale; and also includes the acceptance of any
fabric to be dry cleaned, dyed and/or pressed
where the said work is actually done and per-
formed outside the confines of the state of North
Carolina. (1937, c. 30, s. 1.)
§ 5382(2). State dry cleaners commission]
created; members; terms and compensation; or-
ganization; personnel. — There is hereby created
for the dry cleaning, dyeing and/or pressing busi-
ness a commission to be known as state dry
cleaners commission. Said commission shall con-
sist of five members, to be appointed by the gov-
ernor of the state of North Carolina, three of
whom shall have been engaged in the dry cleaning,
dyeing and/or pressing business in the state of
North Carolina for at least five years next pre-
ceding his appointment, and two of whom shall
not be connected with said business but shall be
from the public at large; one of the members shall
be appointed for a term of one year, two for a
term of two years and two for a term of three
years, and subsequent appointments shall be for
a term of four years, except appointments to fill
vacancies shall be for the unexpired terms, all of
whom shall hold office at the pleasure of the gov-
ernor for the terms indicated herein. The mem-
bers of said commission shall receive as compensa-
tion for their services five dollars for each day
while attending commission meetings and their
necessary traveling expenses incurred in connec-
tion therewith. The commission shall elect one
of its members as chairman and one of its mem-
bers as vice-chairman, and shall adopt a set of
rules and by-laws to govern its organization and
proceedings, and shall adopt and use a seal. The
commission is authorized and empowered to incur
any and all expenses deemed necessary by it for
the administration and enforcement of this chapter,
and to appoint a secretary, who need not be a
member of the commission, and such other clerks,
inspectors, and other assistants as it may deem
necessary for the administration and enforcement
of this chapter, and fix their duties, compensation,
and terms of service, as well as the employment
of such lawyers as may be approved by the at-
torneys general, all of which shall be paid out of
the funds collected by the commission as provided
in this chapter. (1937, c. 30, s. 2.)
§ 5382(3). Functions, duties and powers of
commission. — The functions, duties, and powers
of the "State Cleaners Commission" shall be as
follows:
(1) To adopt and promulgate rules and regula-
tions as may be necessary to control and regulate
the dry cleaning, dyeing and/or pressing business
in the following particulars:
a. Identification to the public of all persons,
firms, corporations or associations licensed by the
commission to engage in said businesses, as well
as their agents or representatives.
b. Enforcement of existing fire, sanitation and
labor laws where applicable to the industry, and
all other laws applicable to the industry now on
the statute books of North Carolina.
c. Prohibit false or misleading statements, ad-
vertisements or guarantees either in form or con-
tent.
d. Form of application required by commission
for license and form of license to be issued by
commission.
e. Require examination of persons not entitled
to have issued to them a license as provided in
this chapter, such examination to cover subjects
deemed necessary to promote the public health,,
safety and welfare of the people of the state of
North Carolina.
(2) To grant licenses to conduct the business,
of dry cleaning, dyeing and/or pressing to per-
sons, firms, corporations, or associations in ac-
cordance with the provisions of this chapter and
the rules and regulations of the commission. This
commission may decline to grant a license, or
may suspend or revoke a license already granted,
after due notice and after hearing, on the grounds
of any violation of the provisions of this chapter
or the rules and regulations promulgated by said
Commission, not in conflict with the provisions
of this chapter: Provided, however, that any party
accused shall have the right to appeal from the
decision of the commission, in the event of a re-
fusal to grant or the suspension or revocation of
any license, to the superior court of the county
in which the place of business of the accused party
is located. Such appeal shall operate as a su-
persedeas with respect to the decision or ruling
of said commission in the refusal to grant or the!
revocation or suspension of such license: Provided
that, pending appeal, the accused party shall exe-
cute a bond in the sum of five hundred dollars
($500.00) before the clerk of the court in which
the appeal is pending, the surety to be approved
by the clerk of said court and conditioned not to
violate any of the provisions of this chapter.
(3) To act, for the purpose of this chapter, as
a competent authority in connection with the
matters pertinent thereto. (1937, c. 30, s. 3.)
Editor's Note. — While the provision as to examination of
applicants refers only to those who were not so engaged at
[ 179
§ 5382(4)
EDUCATION
§ 5468
the time the statute went into effect, the provision as to
revocation refers to all. IS N. C. Law Rev., No. 4, p. 326.
§ 5382(4). Persons, firms, etc., entitled to li-
cense.— All persons, firms, corporations and as-
sociations in the state of North Carolina engaged
in the dry cleaning, dyeing and/or pressing busi-
ness, or either of said businesses, at the time
this chapter becomes law, shall be entitled to have
issued to them a license upon the payment of the
license fee herein required. (1937, c. 30, s. 4.)
§ 5382(5). Licenses required; issued annually;
fees. — No person, firm, corporation or association
shall engage in the business of dry cleaning, dye-
ing and/or pressing, as herein defined, within the
state of North Carolina without first obtaining
a license therefor from the said commission, which
said license shall be valid for a period of one
year and no more, unless sooner revoked or sus-
pended by said commission under the provisions
of this chapter.
For the purpose of providing funds for the ad-
ministration of this chapter the annual fees for
.such licenses shall be as follows:
a. "Retail outlet" $ 5.00
b. "Press shop" 10.00
c. "Retail plant" 25.00
d. "Wholesale plant" 50.00
e. "Non-resident outlet" 50.00
Such license fees shall be collected by said com-
mission and shall be disbursed as hereinafter pro-
vided. (1937, c. 30, s. 5.)
§ 5382(6). Funds collected.— All funds col-
lected by the commission as provided in this
chapter shall be paid into the general fund of the
state treasury, and the same shall be and are
hereby appropriated to the commission for the
purpose of the administration and enforcement of
this chapter. (1937, c. 30, s. 6.)
§ 5382(7). Violation punishable as misdemean-
or.— Except pending an appeal, as hereinbefore
provided, any person who shall engage in the
business of dry cleaning, dyeing and/or pressing,
as herein defined, without first having secured a
license or certificate from said commission so to
do, or who shall continue to do the business of
dry cleaning, dyeing and/or pressing after the
suspension or revocation of a license issued by
the commission, shall be guilty of a misdemeanor
under the laws of the state of North Carolina, and
upon conviction thereof shall be punished by a
fine of not less than ten dollars, nor exceeding
one hundred dollars, and each day during which
this violation shall continue shall be deemed a
separate offense. (1937, c. 30, s. 7.)
§ 5382(8). State license fee not affected.— Li-
censes in this chapter shall be imposed as an ad-
ditional state license fee for the privilege of
carrying on the business, exercising the privilege,
or doing the acts named herein, and nothing in
this chapter shall be construed to relieve any
person, firm, corporation, or association of per-
sons from the payment of the fee prescribed un-
der section 5382(5). (1937, c. 30, s. 8.)
CHAPTER 95
EDUCATION
SUBCHAPTER III. DUTIES, POWERS AND
RESPONSIBILITIES OF COUNTY
BOARDS OF EDUCATION
Art. 4. The Board: Its Corporate Powers
§ 5410. How constituted.
Editor's Note.— By Public laws 1937, c. 38, the Randolph
county board of education was increased from three to five
members. And by Public laws 1937, c. 79, the board of
Iredell county was increased to seven members.
§ 5419. The board a body corporate.
Cited in Fuller v. Eockhart, 209 N. C. 61, 182 S. E. 733.
Art. 5. The Direction and Supervision of the
School System
§ 5440(a). Instruction on alcoholism and nar-
cotism.
Cited in Newman v. Watkins, 208 N. C. 675, 182 S. E.
453, dissenting opinion.
Art. 7.
Instruction of Illiterates — Adult
Education
§§ 5449-5451: Repealed by Public Laws 1937,
c, 198, s. 1.
§ 5451(a). Program of adult education pro-
vided for; annual appropriation. — The state board
of education is authorized to* provide rules and
regulations for establishing and conducting schools
to teach adults, and the said schools when pro-
vided for shall become a part of the public school
system of the state, and shall be conducted under
the supervision of the state superintendent of pub-
lic instruction. There is hereby appropriated
annually the sum of twenty-five thousand ($25,-
000.00) dollars from the general fund of the state
for the purpose of carrying out the provisions of
this section, and to be disbursed on vouchers is-
sued by the state superintendent of public in-
struction. (1937, c. 198, ss. 2, 3.)
Art. 9. Erection, Repair and Equipment of
School Buildings
§ 5467. School buildings necessary.
See the note to § 5599 in this supplement.
§ 5468. Erection of schoolhouses. — The build-
ing of all new schoolhouses and the repairing of
all old schoolhouses over which the county board
of education has jurisdiction shall be under the
control and direction of and by contract with the
county board of education, provided, however,
that in the building of all new schoolhouses and
the repairing of all old schoolhouses which may
be located in a special charter district (as such
district is defined by sub-section three of section
5387), the building of such new schoolhouses and
the repairing of such old schoolhouses shall be
under the control and direction of and by contract
with the board of education or the board of trus-
tees having jurisdiction over said special charter
district. But the board shall not be authorized
to invest any money in any new house that is not
built in accordance with plans approved by the
state superintendent, nor for more money than is
made available for its erection. All contracts for
buildings shall be in writing, and all buildings
shall be inspected, received, and approved by the
[180]
§ 5470(a)
EDUCATION
§ 5754(7)
county superintendent of public instruction, or by
the superintendent of schools where such school
buildings are located in a special charter district,
before full payment is made therefor: Provided,
this section shall not prohibit county boards of
education and boards of trustees from having the
janitor or any other regular employee to repair
the buildings. From any moneys loaned by the
.state to any one of the several counties for the
erection, repair or equipment of school buildings,
teacherages and dormitories, the state board of
education, under such rules as it may deem ad-
visable, not inconsistent with the provisions of
this article, may retain an amount not to exceed
fifteen per cent of said loan until such completed
buildings, erected or repaired, in whole or in part,
from such loan funds, shall have been approved
by such agent as the state board of education may
designate: Provided, that upon the proper ap-
proval of the completed building, the state treas-
urer, upon requisition of the state superintendent
of public instruction, authorized and directed by
the state board of education, shall pay to the treas-
urer of the county the remaining part of said loan,
together with interest from the date of the loan
at a rate not less than three per cent on monthly
balances. (C. S., 5415; 1923, c. 136, s. 60; 1925,
c. 221; 1937, c. 353.)
Editor's Note. — The 1937 amendment inserted the proviso
to the first sentence of this section. It also amended the
third sentence by inserting the clause relating to superin-
tendent of schools.
§ 5470(a). Sale of school property.
Where a chartered school district acquired property by
foreclosure of a loan made from its sinking fund, the prop-
erty thus acquired being in no way connected with the
operation of its schools, and the trustees of the district
instructed the property committee to consider any offers for
the property in excess of a stipulated sum, and delegated
"power to act" in the matter, and where the chairman
thereafter entered into a contract for the sale of the prop-
erty for a price in excess of the minimum amount stipulated
by the trustees, upon a suit by a taxpayer of the district
to restrain conveyance to the purchaser in the contract, it
was held that the trustees of the district were without
power to delegate authority to sell the school property, and
the district was not bound by the contract entered into and
a decree restraining the execution of the contract was
proper. Bowles v. Fayetteville Graded Schools, 211 N. C. 36,
188 S. K. 615.
§ 5470(b). Rejection of bids at public sales;
private sale. — After the sale of school property, as
herein provided for, has been had and in the opin-
ion of the county board of education the amount
offered for the property, either at the first or any
subsequent sale, is inadequate, then, upon a find-
ing of such fact by the county board of education,
the said board is authorized to reject such bid and
to sell the property at private sale: Provided, the
price offered is in excess of that offered at such
public sale. (1937, c. 117.)
SUBCHAPTER VII. REVENUE FOR THE
PUBLIC SCHOOLS
Art. 18. How to Estimate Amount Necessary for
Six Months Term; — Equalization Fund
§ 5596. Contents of the May budget.
Premiums for insurance of its public school buildings is a
necessary public expense of a county, and the incurring of
liability therefor need not be submitted to the voters.
Fuller v. I^ockhart, 209 N. C. 61, 182 S. E. 733.
§ 5599. How to determine the amount of the
current expense fund, the capital outlay fund, and
the debt service fund.
Assumption of Payment as County-Wida Obligation.—
Since under § 5467 it is the duty of the county com-
missioners of each county to provide for the construction
and equipment of schools in each district necessary to the
maintenance of the constitutional school term, where some
of the school districts of the county provide the necessary
buildings and equipment upon failure of the county to do
so, by issuing school bonds or otherwise, the county may
assume such indebtedness upon the request of its board
of education. Marshburn v. Brown, 210 N. C. 331, 186 S.
E. 265.
Applied in Mebane Graded School Dist. v. Alamance
County, 211 N. C. 213, 189 S. E. 873.
SUBCHAPTER IXB. SCHOOL DISTRICT
REFUNDING AND FUNDING BONDS
Art. 30D. Issuance and Levy of Tax for Payment
§ 5694(sl). Issuance of bonds by cities and
towns; debt statement; tax levy for repayment.—
In case the boundaries of any such school district
are coterminous with any city or town, the govern-
ing body of such city or town is hereby authorized
to issue bonds at one time or from time to time
for the purpose of refunding or funding the prin-
cipal or interest of any bonds then outstanding
which were issued by or on behalf of such school
district. Except as otherwise provided in this ar-
ticle, such refunding and funding bonds shall be
issued in accordance with the provisions of the
Municipal Finance Act, as amended, relating to
the issuance of refunding and funding bonds under
that act, and the provisions of the Local Govern-
ment Act and acts amendatory thereof and supple-
mental thereto, except in the following respects:
(a) The bonds shall be issued in the name and
on behalf of the school district by the governing
body of such city or town.
(b) It shall not be necessary to include in the
ordinance authorizing the bonds, or in the notice
required to be published after the passage of the
ordinance, any statement concerning the filing of
a debt statement, and, as applied to said bonds,
sections two thousand nine hundred and thirty-
eight and two thousand nine hundred and forty-
three of the Municipal Finance Act, as amended,
shall be read and understood as if they contained
no requirements in respect to such matters.
(c) The governing body of such city or town
shall annually levy and collect a tax ad valorem
upon all the taxable property in such school dis-
trict sufficient to pay the principal and interest of
such refunding or funding bonds as the same be-
come due. (1937, c. 126.)
SUBCHAPTER XI. TEXTBOOKS AND
PUBLIC LIBRARIES
Art. 37B. State Textbook Commission
§ 5754(7). Textbook commission created; super-
sedes textbook purchase and rental commission. —
There is hereby created a state textbook commis-
sion of five members, to be composed as follows:
The state superintendent of public instruction,
ex officio chairman; the attorney general, the di-
rector of the division of purchase and contract, and
two members to be appointed by the governor for
a term of two years each. The said appointive
members are to receive as compensation such per
diem and travel expenses as is now provided by
law. All the powers and duties heretofore con-
[181]
5754(8)
EDUCATION
§ 5754(14)
ferred by law upon the state textbook purchase
and rental commission, together with such other
powers and duties as may be conferred by the pro-
visions of this article, shall be vested in the state
textbook commission. The expenses and costs of
the commission for carrying out the provisions of
this article are to be paid out of the appropriation
made available in section 5754(13). (1937, c. 169,
s. 1.)
§ 5754(8). Duties of commission. — The state
textbook commission is hereby authorized and
empowered to administer funds and to establish
rules and regulations necessary to:
(1) Acquire by contract and/or purchase such
textbooks that are or may be on the adopted list
of the state of North Carolina as the commission
may find necessary to carry out the provisions of
this article.
(2) Provide a system of distribution of said
textbooks so that they may be available for the
children of the public schools when this measure
may be put into effect as hereinafter provided.
(3) Provide for the free use, including the
proper care and return thereof, of elementary
basal textbooks to such grades of the elementary
public schools of North Carolina as may be de-
termined by the state textbook commission. Title
to said books shall be vested in the state. For
the purposes of this article, the elementary grades
shall be considered the grades from one to seven,
inclusive. The basal elementary textbooks in the
hands of the state textbook purchase and rental
commission, when this measure is put in effect,
shall become a part of the stock of books needed
to carry out the provisions of this article.
(4) Provide books for high school children in
the public high schools of North Carolina on a
rental basis as now provided in chapter four
hundred and twenty-two, Public Laws of one
thousand nine hundred thirty-five [§§ 5754(1)-
5754(6)]: Provided, that free basal books may be
furnished to high school children if sufficient funds
are available and if the commission finds it ad-
visable to take such action.
(5) Provide supplementary readers for the ele-
mentary children in the public elementary schools
of North Carolina on a rental toasis, as provided
for in chapter four hundred and twenty-two, Pub-
lic Laws of one thousand nine hundred thirty-five.
(6) Provide and distribute all blanks, forms, and
reports necessary to keep a careful record of all
the books, including their use, state of repair and
such other information as the commission may
require. (1937, c. 169, s. 2.)
§ 5754(9). Legal custodians of books furnished'
by state. — The county board of education in each
county administrative unit and the school govern-
ing board in each city administrative unit shall be
designated the legal custodians of all books
furnished by the state, either for free use or on a
rental basis. It shall be the duty of the said boards
to provide adequate and safe storage facilities for
the proper care of said books. (1937, c. 169, s. 3.)
§ 5754(10). Duties and authority of superin-
tendents of local administrative units; withhold-
ing salary for failure to comply with section. — It
shall be the duty of the superintendent of each
administrative unit as ex officio agent of the com-
[1
mission to administer the provisions of this article
and the rules and regulations of the state textbook
commission, in so far .as said article and said rules
and regulations may apply to said unit. He shall
also have authority to require the co-operation of
principals and teachers to the end that the children
may receive the highest possible service, and that
all books and moneys may be properly accounted
for. In the event any teacher or principal shall
fail to comply with the provisions of this section,
it shall be the duty of the superintendent to with-
hold the salary checks of said principal or teacher
until the duties imposed hereby have been per-
formed. (1937, c. 169, s. 4.)
§ 5754(11). Further funds made available. —
Any unexpended portion of the appropriation and
revenues provided for in chapter four hundred
twenty-two, Public Laws of one thousand nine
hundred thirty-five [§§ 5754(l)-5754(6)], shall be
available to the commission during the next
biennium for carrying out the provisions of this
article, or of the provisions of said chapter not in
conflict with the provisions of ihis article. These
funds shall be in addition to the proceeds of bonds
authorized by this article. (1937, c. 169, s. 5.)
§ 5754(12). Article supplemental; conflicting
provisions repealed. — It is the purpose of this
article to supplement the provisions of chapter1
four hundred twenty-two, Public Laws of one
thousand nine hundred and thirty-five [§§ 5754(1)-
5754(6)], not in conflict herewith, and any provi-
sions of said chapter in conflict with the provisions
hereof, are hereby repealed. (1937, c. 169, s. 6.)
§ 5754(13). Bond issue authorized. — To pro-
vide a fund for the purpose of purchasing books
and carrying out the provisions of this article, the
treasurer of the state is authorized and directed,
by and with the consent of the governor and
council of state, to issue and sell at one time, or
from time to time, bonds of the state in an amount
not exceeding one million five hundred thousand
dollars ($1,500,000.00). (1937, c. 169, s. 7.)
§i 5754(14). Coupon bonds; denominations;
dates and rate of interest; maturity, etc. — The
bonds authorized and directed to be issued by the
preceding section shall be coupon bonds of such
denomination, or denominations, as may be de-
termined by said state treasurer, and shall bear
such date or dates, and such rate or rates of in-
terest not exceeding five per centum (5%) per
annum, payable semi-annually, as may be fixed by
the governor and council of state, and shall ma-
ture in equal .annual installments beginning five
years and ending twenty-four years from date.
If all of such bonds shall not be issued at one
time, the bonds issued at any one time shall ma-
ture as above provided. The bonds shall be
signed by the governor of the state and state
treasurer and sealed with the great seal of the
state. The coupons thereon may be signed by
the state treasurer alone, or may have a facsimile
of his signature printed, engraved, or lithographed
thereon, and the said bonds shall in all other re-
spects be in such form as the state treasurer may
direct; said bonds shall be subject to registration
as is now or may hereafter be provided by law
for state bonds; and the coupons thereon shall,
after maturity, be receivable in payment of all
82 ]
§ 5754(15)
EDUCATION
§ 5780(m5)
taxes, debts, dues, licenses, fines and demands
due the state of North Carolina, of any kind
whatsoever. Before selling any of the bonds here-
in authorized to be issued, the state treasurer
shall advertise the sale and invite sealed bids in
such manner as in his judgment may seem to be
most effectual to secure the par of said bonds at
the lowest rate of interest. (1937, c. 169, s. 8.)
§ 5754(15). Bonds and coupons exempt from
taxation; authorized investment for fiduciaries,
etc. — The said bonds and coupons shall be exempt
from all state, county or municipal taxation of*
assessment, direct or indirect, general or special,
whether imposed for the purpose of general rev-
enue or otherwise, and the interest paid thereorii
shall not be subject to taxation as for income, nor
shall said bonds and coupons be subject to taxa-
tion when constituting a part of the surplus of
any bank, trust company, or other corporation;
and it shall be lawful for all executors, adminis-
trators, guardians, or other fiduciaries generally,
said bonds. (1937, c. 169, s. 9.)
conduct such commercial college or branch college
or school. (1935, c. 255, s. 2; 1937, c. 184.)
Editor's Note. — The 1937/ amendment made this section
applicable to operators of correspondence schools.
§ 5780 (m3). State board of commercial educa-
tion created; membership. — The state board of
commercial education shall consist of the director
of the division of instructional service, the director
of the division of vocational education and two
persons who are owners and operators of duly
licensed business or commercial schools which
have been in operation within the state for five
years, and the state superintendent of education,
who will be chairman of the board and ex officio
secretary. The two members who are commercial
school owners or operators shall be appointed by
the governor and shall serve for three years or
until their successors have been appointed and
taken office. (1935, c. 255, s. 2; 1937, c. 184.)
Editor's Note. — Prior to the 1937 amendment the board
contained only one school owner or operator.
§ 5780 (m4). Application for permit; investiga-
1 I tion by county superintendent of schools; fees—
Application for such permit to open and conduct
§ 5754(16). Full faith and credit of state
pledged for payment. — The full faith and credit
and taxing power of the state are hereby pledged
for the payment of the principal and interest of the
bonds herein authorized. (1937, c. 169, s. 10.)
SUBCHAPTER XVIA. STATE BOARD
COMMERCIAL EDUCATION
OF
Art. 45A. Requirement of Permit Bond
§ 5780(ml). Commercial college or business
school denned. — A commercial college or business
school shall be defined as follows: Any person,
partnership, association of persons, or any cor-
poration, or operators of correspondence schools
within the state of North Carolina, which teaches,
publicly, for compensation, any or all the branches
of accounting, bookkeeping, stenotype, stenography,
typing, telegraphy, and other commercial subjects
which are usually taught in commercial colleges
or business schools; provided, however, that any
person or individual who undertakes to give in-
struction in the above subjects to five or less
students shall not be construed as the operator
of a commercial college or business school. (1935,
c. 255, s. 1; 1937, c. 184.)
Editor's Note.
"person" and
within the state of North Carolina
to this section.
•The 1937 amendment inserted the words
or operators of correspondence schools
and added the proviso
§ 5780 (m2). Securing permit before operating.
— Any person, partnership, association of persons,
or any corporation, or operators of correspond-
ence schools within the state of North Carolina,
which may desire to open a commercial college
•or to establish a branch college or school in this
state for the purpose of teaching bookkeeping,
stenography, stenotype, typing, telegraphy, and
other courses which are usually taught in com-
mercial colleges, before commencing business,
must secure a permit from the state board of
commercial education of the state of North Caro-
lina authorizing such persons, partnership, as-
sociation of persons or corporation to open and
a business or correspondence school shall state
specifically the name of such person, partnership
or corporation, and said application shall be filed
with the state board of commercial education at
Raleigh. If, after due investigation on the part
of said board, it is shown to the satisfaction of
said board that said applicant is professionally
qualified to conduct said school and possesses
good moral character for fair and honest dealings,
then said board shall approve said application and
issue permit to said applicant.
(1937, c. 184.)
Editor's Note.— As the 1937 amendment changed only the
first two sentences, the rest of the section is not set out.
§ 5780(m5). Execution of bond required; filing
and recording. — Before the board of commercial
education shall issue such permit, the person,
partnership, association of persons, or corporation
shall execute a bond in the sum of one thousand
($1,000) dollars, signed by a solvent guaranty
company authorized to do business in the state
of North Carolina or by two solvent sureties,
payable to the clerk of the superior court of the
county in which such college, branch college, or
school will be located and conduct its business,
conditioned that the principal in said bond will
carry out and comply with each and all contracts,
made and entered into by said college or branch
college or school, acting by and through its officers
and agents, with any student who desires to en-
tei such college and to take any course in com-
mercial training, and to pay back to such student
all amounts collected for tuition and fees in case
of failure on the part of the parties obtaining a
permit from the board of commercial education to
open and conduct a commercial college, or branch
college or school, to comply with its contracts to
give the instructions contracted for, and for the
full period evidenced by such contract. Such bond
shall be filed with the clerk of superior court of
the county in which the college or branch or
school executing the bond is located, and recorded
by such clerk in a book provided for that purpose.
The requirement herein specified for giving the
aforesaid bond of one thousand dollars ($1,000.00)
[ 183
§ 5780(m8)
EDUCATION
§ 5780(86)
shall apply to all commercial colleges, business
schools and correspondence schools and branches
thereof operating in North Carolina, and the said
board of commercial education shall not issue any
permit or license to any person, firm, or corpora-
tion to operate any of the aforesaid schools until
said bond has been given and notice of the ap-
proval of same by the clerk of superior court has
been filed with said board of commercial educa-
tion. Operators' bonds of one thousand dollars
($1,000.00) each shall be required for each branch
of such commercial colleges, business schools, or
correspondence schools operated within the state
by any person, partnership, or corporation. (1935,
c. 255, s. 4; 1937, c. 184.)
Editor's Note. — Prior to the 1937 amendment, which
added the second paragraph, bond of guaranty company was
required.
§ 5780 (m8). Institutions exempted. — The pro-
vision of this article shall not apply to any estab-
lished university, professional, or liberal arts col-
lege, regular high school or any state institution
which has heretofore adopted or which may here-
after adopt one or more commercial courses, pro-
vided the tuition fees and charges, if any, made by
such university, college, high school or state insti-
tution shall be collected by their regular officers
in accordance with the rules and regulations pre-
scribed by the board of trustees or governing
body of such university, college, or high school;
but the provisions of this article shall apply to all
commercial colleges, business schools and cor-
respondence schools operated within the state of
North Carolina as commercial institutions. (1935,
c. 255, s. 7; 1937, c. 184.)
Editor's Note. — Prior to the 1937 amendment established
commercial colleges having one or more commercial courses
were also exempted.
§ 5780(mlQ). Solicitors. — All persons soliciting
students within the state of North Carolina for
commercial colleges, business schools or corre-
spondence schools located within or without the
state of North Carolina, shall be required to se-
cure on July first of each year hereafter an annual
license from the board of commercial education,
such license to cost two dollars ($2.00). When
application is made for such license by a solicitor
he shall submit to said board for its approval a
copy of the contract offered prospective students
and used by his said school, together with advertis-
ing material and other representations made by
said school to its students or prospective students.
When a license is issued to such solicitor he shall
receive a license card permitting him to solicit
students for his school, but such license shall be
issued only on an annual basis expiring June
thirtieth of each year and must be renewed to en-
title such solicitor to solicit students thereafter.
Every commercial college, business school, or
correspondence school employing such solicitors
shall be responsible for the acts, representations
and contracts made by its solicitors. Any person
soliciting students for any such schools without
first having secured a license from the board of
commercial education shall be guilty of a misde-
meanor and be punishable by a fine of fifty dollars
($50.00) or thirty days imprisonment, or both, at
the discretion of the court. (1937, c. 184.)
SUBCHAPTER XIX. SCHOOL LAW OF 1935
§§ 5780(41)-5780(77): Superseded by Public
Laws 1937, c. 394, codified as §§ 5780(84)-5780-
(121).
SUBCHAPTER XXI. SCHOOL LAW OF 1937
§ 5780(84). Biennial appropriation for eight
months' school term. — The appropriation made
under title nine of "an act to make appropriations
for the maintenance of the state's departments,
bureaus, institutions, and agencies, and for other
purposes" of the sum of twenty-three million,
seven hundred ninety-six thousand, three hundred
sixty-seven dollars ($23,796,367.00), "for the sup-
port of the eight months term public schools"
for the year ending June thirtieth, one thousand
nine hundred thirty-eight, and the sum of twenty-
four million, nine hundred eighty-six thousand,
one hundred sixty dollars ($24,986,160.00) "for the
support of the eight months term public schools"
for the year ending June thirtieth, one thousand
nine hundred thirty-nine, shall be apportioned for
the operation of an eight months state-wide school
term as hereinafter provided. (1937, c. 394, s. 1.)
§ 5780(85). State school commission; member-
ship; appointment; terms of office and compensa-
tion; powers and duties; executive secretary; cost
and expenses. — The state school commission shall
be constituted as follows: The lieutenant-governor
as ex officio chairman, the state superintendent of
public instruction as vice-chairman, the state
treasurer and one member from each congressional
district to be appointed by the governor. The
said appointive members shall serve for a period
of two years from the time of their appointment
and receive such compensation as now provided
by law. All the powers and duties heretofore
conferred by law upon the state board of equaliza-
tion, and the state school commission, together
with such other powers and duties as may be con-
ferred by this subchapter, shall be vested in the
state school commission. The said school com-
mission may appoint an executive secretary who
shall select other employees necessary for the
proper administration of this subchapter to be ap-
proved by the state school commission, subject
to provisions of chapter two hundred seventy-
seven, Public Laws of one thousand nine hundred
thirty-one [§ 7521(k) et seq.]. The cost and ex-
penses of said commission shall be paid out of the
appropriation made for the public schools as pro-
vided in section 5780(84). (1937, c. 394, s. 2.)
§ 5780(86). Administration of funds for eight
months' term. — In addition to the duties and pow-
ers vested in the state school commission as set
out in section 5780(85), together with such other
powers as may be conferred by law, it shall be the
duty of the said commission, in accordance with
the provisions of this subchapter, to administer
funds for the operation of the schools of the state
for one hundred, sixty days on standards to be de-
termined by said commission and within the total
appropriation made available by the general as-
sembly. The state school commission shall desig-
nate from its membership an executive committee,
composed of the lieutenant governor, the state su-
perintendent of public instruction, the state treas-
urer, and two other members, with whom the ex-
[ 184
§ 5780(87)
EDUCATION
§ 5780(90)
ecutive secretary may confer with reference to the
administration of this subchapter when the com-
mission is not in session. The purpose of this pro-
vision is to provide an agency for consultation and
advice as to questions arising between meetings of
the commission, and for the purpose of effectuat-
ing a closer unity between the different agencies
dealing with the schools. The secretary shall keep
a record of the proceedings of any meetings of the
executive committee in the same manner as pro-
ceedings of the full commission are kept and re-
corded. (1937, c. 394, s. 3.)
§ 5780(87). Length of term; discontinuance for
low average attendance; opening dates; re-alloca-
tion of appropriation not used. — The six months'
school term required by article nine of the consti-
tution is hereby extended to embrace a total of
one hundred sixty days of school in order that
there shall be operated in every county and dis-
trict in the state, which shall request the same, a
uniform term of eight months: Provided, that the
state school commission, or the governing body of
any administrative unit, may suspend the operation
of any school or schools in such unit, not to exceed
a period of forty days of said consolidated term,
when in the sound judgment of said commission,
or the governing body of any administrative unit,
the low average in any school does not justify its
continuance, or necessity may require it: Provided,
that all schools served -by the same school bus or
busses shall have the same opening date: Provided
further, that any balance of the state funds which
may have been allocated to operate the said con-
solidated term, not actually operated as planned,
shall be and remain in the state treasury and be-
come a part of the state school fund for the next
succeeding year. (1937, c. 394, s. 4.)
§ 5780(88). "School month" defined; salaries of
teachers, etc., payable monthly. — A school month
shall consist of four weeks and not less than
twenty teaching days, no day of which shall he a
Saturday, unless in case of emergency, and sub-
ject to the approval of the local committee and the
superintendent of the administrative unit; and sal-
ary warrants for the payment of all state teachers,
principals, and others employed for the school
term shall be issued each school month to such
persons as are entitled to same. The salaries of
superintendents and others employed on an an-
nual basis shall be paid per calendar month. (1937,
c. 394, s. 4.)
§ 5780(89). Counties as administrative units;
supervision of district organization; minimum
number of pupils for establishing schools; city ad-
ministrative units; consolidation of units. — The
state school commission, in making provision for
the operation of the schools, shall classify each
county as an administrative unit and shall, with
the advice of the county board of education, make
a careful study of the existing district organization
in each county administrative unit, and may mod-
ify such district organization when deemed neces-
sary for the economical administration and opera-
tion of the state school system, and shall determine
whether there shall be operated in such district an
elementary or a union school. Provisions shall not
be made for a high school with an average daily
attendance of less than sixty pupils, nor an ele-
mentary school with an average daily attendance
of less than twenty-five pupils, unless a careful
survey by the state superintendent of public in-
struction and the state school commission reveals
that geographic or other conditions make it im-
practicable to provide for them otherwise.
City administrative units as now constituted
shall be dealt with by the state school authorities
in all matters of school administration in the same
way and manner as are county administrative
units: Provided, that in all city administrative units
as now constituted the trustees of the said special
charter district, and their duly elected successors,
shall be retained as the governing body of such
district; and the title to all property of the said
special charter district shall remain with such
trustees, or their successors: Provided, that noth-
ing in this subchapter shall prevent city adminis-
trative units, as now established, from consolidat-
ing wTith the county administrative unit in which
such city administrative unit is located, upon pe-
tition of the trustees of the said city administrative
unit and the approval of the county board of edu-
cation and the county board of commissioners in
said county: provided further, that in the event of
such consolidation, all property vested in the trus-
tees of such city administrative units shall be trans-
ferred to and become the property of the county
board of education in said county: Provided fur-
ther, that nothing in this subchapter shall affect
the right of any special charter district, or special
tax district which now exists for the purpose of
retiring debt service, to have the indebtedness of
such district taken over by the county as provided
by existing law and nothing herein shall be con-
strued to restrict the county board of education
and/or the board of county commissioners in caus-
ing such indebtedness to be assumed by the county
as provided by existing law. (1937, c. 394, s. 5.)
§ 5780(90). Administrative officers of school
units; superintendents; selection of principals,
teachers and other employees in city units. — The
administrative officer in each of the units now des-
ignated shall be a county superintendent of schools
for a county administrative unit and a city super-
intendent of schools for a city administrative unit.
The salaries of county superintendents and city
superintendents shall be in accordance with a
state standard salary schedule to be fixed and de-
termined by the state board of education and the
state school commission as provided for in section
5780(98) : Provided, that it shall be lawful for the
county superintendent of schools in any county,
with the approval of the state superintendent of
Public Instruction, to serve as principal of a high
school of said county; and the sum of not exceed-
ing three hundred dollars ($300.00), to be paid
from state instructional service funds, may be
added to his salary and shall be included in the
budget approved by the state school commission:
Provided further, that a county superintendent
may also be elected and serve as a city superin-
tendent in any city administrative unit in the
county which he serves as county superintendent:
Provided further, that a county superintendent
may serve as welfare officer and have such addi-
tional compensation as may be allowed by the
county commissioners of such county, to be paid
185
§ 5780(91)
EDUCATION
§ 5780(93)
from county funds, subject to the approval of the
state school commission.
At a meeting to be held the first Monday in
April, one thousand nine hundred thirty-seven, or
as soon thereafter as practicable, and biennially
thereafter during the month of April, the various
county boards of education shall meet and elect a
county superintendent of schools, subject to the
approval of the state superintendent of public in-
struction and the state school commission, who
shall take office July first and shall serve for a pe-
riod of two years, or until his successor is elected
and qualified. A certification to the county board
of education by the state superintendent of public
instruction showing that the person proposed for
the office of county superintendent of schools is a
graduate of a four years standard college, or at the
present time holds a superintendent's certificate,
and has had three years' experience in school work
in the past ten years, together with a doctor's cer-
tificate showing the person to be free from any
contagious disease, shall make any citizen of the
State eligible for this office.
In all city administrative units the superintend-
ent of schools shall be elected by the board of trus-
tees, or other school governing agency of such
unit, to serve for a period of two years; and the
qualifications, approval, and date of election shall
be the same as for county superintendents. The
city superintendent is hereby ex officio secretary to
the governing body of said city administrative unit.
At its first regular meeting in April, or as soon
thereafter as practicable, the board of trustees, or
other governing board of a city administrative
unit, shall elect principals, teachers, and other nec-
essary employees of the schools within said unit
on the recommendation of the city superintendent.
(1937, c. 394, s. 6.)
§ 5780(91). School district committees; advisory
boards. — At the first regular meeting during the
month of April, one thousand nine hundred thirty-
seven, or as soon thereafter as practicable, and bi-
ennially thereafter, the county boards of education
shall elect and appoint school committees for each
of the several districts in their counties, consisting
of not less than three nor more than five persons
for each school district, whose term of office shall
be for two years: Provided, that in the event of
death or resignation of any member of said school
committee, the county board of education shall be
empowered to select and appoint his or her suc-
cessor to serve the remainder of the term. The
district committee shall elect the principals for the
schools of the districts, subject to the approval of
the county superintendent of schools and the
county board of education. The principals of the
districts shall nominate and the district committees
shall elect the teachers for all the schools of the
districts, subject to the approval of the county su-
perintendent of schools and the county board of
education. In the event the local school authori-
ties herein provided for are unable to agree upon
the nomination and election of teachers, the mat-
ter shall be appealed to the state superintendent
of public instruction, who shall have authority to
certify the name of a person to the county super-
intendent of schools to be employed for the ensu-
ing school term. All principals and teachers shall
enter into a written contract upon forms to> be fur-
nished by the state superintendent of public in-
struction before becoming eligible to receive any
payment from state funds. It shall be the duty of
the county board of education in a county admin-
istrative unit, and of the governing body of a city
administrative unit, to cause written contracts on
forms to be furnished by the state to be executed
by all teachers and principals elected under the
provisions of this subchapter before any salary
vouchers shall be paid: Provided further, that the
county board of education may appoint an advisory
committee of three members for each school build-
ing in the said school district, who shall care for
the school property, and perform such other duties
as may be defined by the county board of educa-
tion. (1937, c. 394, s. 7.)
§ 5780(92). Organization statement and allot-
ment of teachers. — On or before the twentieth day
of May in each year the several administrative of-
ficers shall present to the state school commission
a certified statement showing the organization of
the schools in their respective units, together with
such other information as said commission may
require. The organization statement as filed for
each administrative unit shall indicate the length
of term the state is requested to operate the vari-
ous schools for the following school year, and the
state shall base its allotment of funds upon such
request. On the basis of such organization state-
ment, together with all other available information,
and under such rules and regulations as the state
school commission may promulgate, the state
school commission shall determine for each admin-
istrative unit, by districts and races, the number
of elementary and high school teachers to be in-
cluded in the state budget.
It shall be the duty of the governing body in
each administrative unit, after the opening of the
schools in said unit, to make a careful check of the
school organization and to request the state school
commission to make changes in the allocation of
teachers to meet requirements of the said unit.
(1937, c. 394, s. 8.)
§ 5780(93). Items of school expenditures.— The
appropriation of state funds, as provided under the
provisions of this subchapter, shall be used for
meeting the costs of the operation of the public
schools, as determined by the state school commis-
sion, for the following items :
1. General Control:
a. Salaries of superintendents
b. Travel of superintendents
c. Salaries of clerical assistants for superin-
tendents
d. Office expense of superintendents
e. Per diem county boards of education in the
sum of one hundred ($100.00) dollars to
each county
f. Audit of school funds
2. Instructional Service:
a. Salaries for white teachers, both elemen-
tary and high school
b. Salaries for colored teachers, both elemen-
tary and high school
c. Salaries of white principals
d. Salaries of colored principals
e. Instructional supplies
[186]
§ 5780(94)
EDUCATION
§ 5780(98)
3. Operation of Plant:
a. Wages of janitors
b. Fuel
c. Water; light and power
d. Janitor's supplies
e. Telephone expense
4. Auxiliary Agencies:
a. Transportation —
(1) Drivers, and contracts
(2) Gas, oil and grease
(3) Mechanics
(4) Parts, tires, and tubes
(5) Replacement busses
(6) Compensation for injuries and/or
death of school children as now
provided (by law
b. Libraries
c. Health
In alloting funds for the items of expenditures
hereinbefore enumerated, provisions shall be made
for a school term of only one hundred sixty days.
(1937, c. 394, s. 9.)
§ 5780(94). Effecting economies; increase or de-
crease in salary schedule; use of school buildings
for other purposes, — The state school commission
shall effect all economies possible in providing
state funds for the objects of general control, op-
eration of plant, and auxiliary agencies, and after
such action shall have authority to increase or de-
crease on a uniform percentage basis the salary
schedule of teachers, principals, and superintend-
ents in order that the appropriation of state funds
for the public schools may insure their operation
for the length of term provided in this subchapter:
Provided, however, the state school commission
and county boards of education shall have power
and authority to promulgate rules by which school
buildings may be used for other purposes. (1937,
c. 3-94, s. 9.)
§ 5780(95). Expenditure for maintenance of
plant and fixed charges; taxes permitted. — The ob-
jects of expenditure designated as maintenance of
plant and fixed charges shall be supplied from
funds required by law to be placed to the credit of
the public school fund of the county and derived
from fines, forfeitures, penalties, dog taxes and
poll taxes, and from all other sources except state
funds: Provided, . that when necessity shall be
shown, the state school commission may approve
the use of such funds in any administrative unit to
supplement any object or item of the current ex-
pense budget; and in such cases the tax levying
authorities of the county administrative unit shall
make a sufficient tax levy to provide the necessary
funds for maintenance of plant, fixed charges, and
capital outlay: Provided further, that the tax levy-
ing authorities in any county administrative unit,
with the approval of the state school commission,
may levy taxes to provide necessary funds for
teaching vocational agriculture and home econom-
ics and trades and industrial vocational subjects
supported in part from federal vocational educa-
tional funds: Provided, that nothing in this sub-
chapter shall prevent the use of federal and/or
privately donated funds which may be made avail-
able for the operation of the public schools under
such regulations as the state board of education
may provide. (1937, c. 394, s. 9.)
§ 5780(96). State budget estimate. — The state
budget estimate shall be determined by the state
school commission for each county and city ad-
ministrative unit by ascertaining the sum of the
objects of expenditure according to and within the
limits fixed by this subchapter, and within the
meaning of the rules and regulations promulgated
by the state school commission; and the certifica-
tion of same shall he made to each county superin-
tendent, city superintendent, and the state super-
intendent of public instruction on or before June
first of each year. (1937, c. 394, s. 10.)
§ 5780(97). Salary costs.— Upon receipt of no-
tice from the state school commission of the total
number of teachers, by races and for county and
city administrative units separately, the state su-
perintendent of public instruction shall then deter-
mine, in accordance with the schedule of salaries
established, the total salary cost in each and every
administrative unit for teachers, principals, and su-
perintendents to be included in the state budget
for the next succeeding fiscal year for the consoli-
dated school term as herein defined. This amount,
as determined from a check of the costs for the
preceding year with adjustments resulting from
changes in the allotment of teachers, shall be cer-
tified to the state school commission, together with
the number of elementary and high school teach-
ers and principals employed in accordance with the
provisions of this subchapter, separately by races,
and for city and county administrative units.
(1937, c. 394, s. 11.)
§ 5780(98). Standard salary schedule to be fixed;
summer school requirement suspended. — The state
board of education and the state school commis-
sion shall fix and determine a state standard salary
schedule for teachers, principals, and superintend-
ents, which shall be the maximum standard state
salaries to be paid from state funds to the teachers,
principals, and superintendents; and all contracts
with teachers and principals shall be made locally
by the county boards of education and/or the gov-
erning authorities of city administrative units, giv-
ing due consideration to the peculiar conditions
surrounding each employment, the competency
and experience of the teacher or principal, the
amount and character of work to be done, and
any and all other things which might enter into
the contract of employment, and shall also take in-
to consideration the grade of certificate such
teacher or principal holds: Provided, however,
that the compensation contracted to be paid out
of the state funds to any teacher, principal, or su-
perintendent shall be within the maximum salary
limit to be fixed by the state board of education
and the state school commission, as above pro-
vided, and within the allotment of funds as made
to the administrative unit for the item of instruc-
tional salaries: Provided further, that no teacher
or principal shall be required to attend summer
school during the years one thousand nine hun-
dred thirty-seven and one thousand nine hundred
thirty-eight, and the certificate of such teacher or
principal as may have been required to attend such
school shall not lapse, but shall remain in full
force and effect, and all credits earned by summer
school and/or completing extension course or
[187]
§ 5780(99)
EDUCATION
§ 5780(103)
courses shall not be impaired, but shall continue
in full force and effect. (1937, c. 394, s. 12.)
§ 5780(99). Notification as to election or rejec-
tion.— Any teacher or principal desiring election
or re-election to a position in the state school sys-
tem shall file his or her application in writing with
the county superintendent of instruction or the
head of administrative unit. It shall be the duty
of such county superintendent or administrative
head to notify applicant of election or rejection
within a period of thirty days. (1937, c. 394, s.
12.)
§ 5780(100). No rule as to marriage enforced. —
In the employment of teachers, no rule shall be
made or enforced on the ground of marriage or
non-marriage. (1937, c. 394, s. 12.)
§ 5780(101). Principals allowed. — In all schools
with fewer than fifty teachers allowed under the
provisions of this subchapter, the principal shall
be included in the number of teachers allowed. In
schools with fifty or more teachers, one whole-
time principal shall ;be allowed; and for each forty
teachers in addition to the first fifty, one additional
whole-time principal, when and if actually em-
ployed, shall be allowed: Provided, that in the al-
location of state funds for principals the salary of
white principals shall be determined by the num-
ber of white teachers employed in the white
schools, and the salary of colored principals shall
be determined by the number of colored teachers
employed in the colored schools. (1937, c. 394,
s. 13.)
§ 5780(103). Local supplements. — The county
board of education in any county administrative
unit and the school governing board in any city
administrative unit, with the approval of the tax
levying authorities in said county or city adminis-
trative unit and the state school commission, in
order to operate schools of a higher standard than
that provided by state support in said administra-
tive unit having a school population of one thou-
sand or more, but in no event to provide for a
term of more than one hundred eighty days, may
supplement the funds from state or county allot-
ments available to said administrative unit: Pro-
vided, that before making any levy for supplement-
ing said allotments, an election shall be held in
said administrative unit to determine whether there
shall be levied a tax to provide said supplemental
funds, and to determine the maximum rate which
may be levied therefor. Upon the request of the
county board of education in a county administra-
tive unit and/or the school governing authorities
in a city administrative unit, the tax levying au-
thorities of such unit shall provide for an election
to be held under laws governing such elections as
set forth in articles 23, 24 and 26 of chapter ninety-
five of the Consolidated Statutes of North Caro-
lina, volume three: Provided, that the rate voted
shall remain the maximum until revoked or
changed by another election: Provided further,
that nothing herein contained shall be construed
to abolish any city administrative unit heretofore
established under chapter four hundred forty-five
of Public Laws of one thousand nine hundred
thirty-five [§ 7472(1) et seq.]. (1937, c. 394, s. 14.)
§ 5780 (103). Local budgets. — a. The request
[1
for funds to supplement state school funds, as per-
mitted under the above condition, shall be filed
with the tax levying authorities in each county
and city administrative unit on or before the
fifteenth day of June on forms provided by the
state school commission. The tax levying au-
thorities in such units may approve or disap-
prove this supplemental budget in whole or in
part, and upon the approval being given, the same
shall be submitted to the state school commission,
which shall have the authority to approve or dis-
approve any object or item contained therein. In
the event of approval by the state school commis-
sion, the same shall be shown in detail upon the
minutes of said tax levying body, and a special
levy shall be made therefor, and the tax receipt
shall show upon the face thereof the purpose of
said levy.
b. In the same manner and at the same time,
each county and/or city administrative unit may
file a capital outlay budget, subject to the approval
of the tax levying authorities and the state school
commission.
c. In the same manner and at the same time,
each county and/or city administrative unit shall
file a debt service budget, which shall include debt
service budgets of special bond tax districts, as
set forth in section sixteen of this subchapter, and
which shall be subject to the approval of the tax
levying authorities in each such unit and the state
school commission: Provided, that nothing in this
subchapter shall prevent counties, local taxing dis-
tricts and/or special charter districts from levying
taxes to provide for debt service requirements.
The tax levying authorities in each of the above
named units filing budgets from local funds shall
report their action on said budgets on or before
the fifteenth day of July, and the same shall be
reported to the state school commission on or be-
fore the first day of August. The action of the'
state school commission on all requests for local
funds budgets shall be reported to boards of edu-
cation and/or school governing authorities of city
administrative units and the tax levying authori-
ties in such units on or before the first day of Sep-
tember.
All county-wide current expense school funds
shall be apportioned to county and city adminis-
trative units and distributed monthly on a per cap-
ita enrollment basis. All county-wide capital out-
lay school funds shall be apportioned to county
and city administrative units on the basis of
budgets submitted by said units to the county
commissioners and for the amounts and purposes
approved by said commissioners; said capital out-
lay funds to be disbursed in the same manner as
provided for school funds: Provided, that funds
derived from payments on insurance losses shall
be used in the replacement of buildings destroyed,
or in the event such buildings are not replaced
said funds shall be used to reduce the indebtedness
of the administrative unit to which said payment
has been made, or for other capital outlay pur-
poses within said units. All county-wide debt
service funds shall be apportioned to county and
city administrative units and distributed monthly
on the basis of the per capita enrollment of the
preceding year: Provided, that the payments to
any administrative unit shall not exceed the actual
§ 5780(104)
EDUCATION
§ 5780(110)
debt service needs of said unit, including sinking
fund requirements. (1937, c. 394, s. 15.)
§ 5780(104). District bonded debts unaffected
by divisions or consolidations; designation of dis-
tricts.— If a boundary, territorial district, or unit
in which a special bond tax has heretofore been
voted or in any way assumed prior to July first,
one thousand nine hundred thirty-three, has been
or may be divided or consolidated, and the whole
or a portion of which has been or may be other-
wise integrated with a new district so established
under any reorganization and/or redistricting, such
territorial unit, boundary, or district, special tax-
ing or special charter, which has been abolished
for school operating purposes, shall remain as a
district for the purpose of the levy and collection
of the special taxes theretofore voted in any unit,
boundary, or district, special taxing or special
charter, for the payment of bonds issued and/or
other obligations so assumed, the said territorial
boundary, district, or unit shall be maintained un-
til all necessary taxes have 'been levied and col-
lected therein for the payment of such bonds and/
or other indebtedness so assumed. Such boundary,
unit, or district shall be known and designated as
the "Special Bond Tax Unit" of
county. (1937, c. 394, s. 16.)
§ 5780(105). Lien of taxes for operating costs;
disposition of unused collections; lien of unpaid
teachers' vouchers; special taxes already voted. —
All uncollected taxes which have been levied in
the respective school districts for the purpose of
meeting the operating costs of the schools shall
remain as a lien against the property as originally
assessed and shall be collectible as are other taxes
so levied, and, upon collection, shall be made a
part of the debt service fund of the special bond
tax unit, along with such other funds as may ac-
crue to the credit of said unit; and in the event
there is no debt service requirement upon such
district, all amounts so collected for whatever pur-
pose shall be covered into the county treasury to
be used as a part of the county debt service for
schools: Provided, that unpaid teachers' vouchers
for the year in which the tax was levied shall be
a prior lien: Provided further, that nothing in this
subchapter shall be construed as abolishing special
taxes voted in any city administrative unit since
July first, one thousand nine hundred thirty-three.
(1937, c. 394, s. 16.)
§ 5780(106). Operating budgets.— It shall be the
duty of the county board of education in each
county and the school governing authorities in
each city administrative unit, upon receipt of the
tentative allotment of state funds for operating the
schools and the approval of all local funds budgets,
including supplements to state funds for operating
schools of a higher standard, funds for extending
the term, fund for debt service, and funds for capi-
tal outlay, to prepare an operating budget on
forms provided by the state and file the same with
the state superintendent of public instruction and
the state school commission on or before the first
day of October. Each operating budget shall be
checked by the state school authorities to ascer-
tain if it is in accordance with the allotment of
state funds and the approval of local funds; and
when found to ibe in accordance with same, shall
be the total school budget for said county or city
administrative unit. (1937, c. 394, s. 17.)
§ 5780(107). Bonds for protection of school
funds. — The state school commission, subject to
the approval of the local government commission,
shall determine and provide all bonds necessary
for the protection of the state school funds.
That the tax levying authorities in each county
and city administrative unit, subject to the ap-
proval of the local government commission, shall
provide such bonds as the state school commis-
sion may require for the protection of county and
district school funds. (1937, c. 394, s. 18.)
§ 5780(108). Disbursement of state funds. — Pay-
ment of the state fund to the county and city ad-
ministrative units may be made in monthly install-
ments, at such time and in such amounts as may
be practical to meet the needs and necessities of
the eight months' school term in the various
county and city administrative units: Provided,
that prior to the payment of any monthly install-
ment, it shall be the duty of the county board of
education or the board of trustees to file with the
state superintendent of public instruction and the
state school commission a certified statement of
all salaries, together with all other obligations that
may be due and payable, said statement to be filed
on or before the fifteenth day of each month next
preceding the maturity of the obligations.
When it shall appear to the state school com-
mission from said certified statement that any
amounts are due and necessary to be paid, such
amounts shall be certified to the state superintend-
ent, who shall draw a requisition on the state
auditor covering the same; and upon receipt of
notice from the state treasurer showing the amount
placed to their credit, the duly constituted authori-
ties may issue state warrants in the amount so cer-
tified: Provided, that no funds be released for pay-
ment of salaries of administrative officers of
county or city units if any reports required to be
filed by the state school authorities are more than
thirty days over-due. (1937, c. 394, s. 19.)
§ 5780(109). Method of disbursing school funds.
— The school funds shall be paid out as follows:
1. State School Funds. — School funds shall be
released only on warrants drawn on the state
treasurer signed by the chairman and the secre-
tary of the county board of education for county
administrative units, and by the chairman and the
secretary of the board of trustees for city adminis-
trative units, and countersigned by such officer as
the county government laws may require.
2. County and District Funds. — All county and
district funds shall be paid out only on warrants
signed by the chairman and secretary of the board
of education for counties and the chairman and the
secretary of the board of trustees for city admin-
istrative units, and countersigned by such officer
as the county government laws may require.
(1937, c. 394, s. 20.)
§ 5780(110). Audit. — The state school commis-
sion, in co-operation with the state auditor, shall
cause to be made an audit of all school funds,
state, county, and district; and the cost of said
audit shall be borne by each fund audited in pro-
portion to the total funds audited, as determined
189
§ 5780(111)
EDUCATION
§ 5780(117)
by the state school commission. The tax levying
authorities for county and city administrative units
shall make provision for meeting their proportion-
ate part of the cost of making said audit, as pro-
vided in this subchapter. (1937, c. 394, s. 21.)
§ 5780(111). Workmen's compensation and sick
leave. — The provisions of the Workmen's Compen-
sation Act shall be applicable to all school employ-
ees, and the state school commission shall make
such arrangements as are necessary to carry out
the provisions of the Workmen's Compensation
Act as applicable to such employees. The state
school commission is hereby authorized and em-
powered, in its discretion, to make provision for
sick leave with pay for any teacher or principal
not exceeding five days and to promulgate rules
and regulations providing for necessary substi-
tutes on account of said sick leave. (1937, c. 394,
s. 22.)
§ 5780(112). Age requirement for enrollment
in public schools. — Children to be entitled to en-
rollment in the public schools for the school year
one thousand nine hundred thirty-seven, thirty-
eight, and each year thereafter, must be six years
of age on or before October first of the year in
which they enroll, and must enroll during the first
month of the school year. (1937, c. 394, s. 22^.)
§ 5780(113). Purchase of equipment and sup-
plies.— It shall be the duty of the county boards
of education and/or the governing bodies of city
administrative units to purchase all supplies and
materials in accordance with contracts and/or
with the approval of the state division of purchase
and contract. (1937, c. 394, s. 23.)
§ 5780(114). School transportation. — The con-
trol and management of all facilities for the trans-
portation of public school children shall be vested
in the state of North Carolina under the direction
and supervision of the state school commission,
which shall have authority to promulgate rules
and regulations governing the organization, main-
tenance, and operation of the school transporta-
tion facilities. The tax levying authorities in the
various counties of the state are authorized and
empowered to provide in the capital outlay budget
adequate buildings and equipment for the storage
and maintenance of all school busses. Provisions
shall be made for the adequate inspection each
thirty days of each vehicle used in the transpor-
tation of school children, and a record of such in-
spection shall be filed in the office of the superin-
tendent of the administrative unit. That it shall
be the duty of the administrative officer of each
administrative unit to require an adequate inspec-
tion of each bus at least once each thirty days,
the report or reports of which inspection shall be
filed with the administrative officers. Every prin-
cipal upon being advised of any defect by the bus
driver shall cause a report of such defect to be
made to this administrative officer immediately,
whose duty it shall be to cause such defect to be
remedied before such bus can be further operated.
The use of school busses shall be limited to the
transportation of children to and from school for
the regularly organized school day. (1937, c. 394,
s. 24.)
§ 5780(115). Bus routes, — In establishing the
route to be followed by each school bus operated
[1
as a part of the state school transportation sys-
tem, in all schools where transportation is now or
may hereafter be provided, the state school com-
mission shall, in co-operation with the district
principal and the district committee, unless road
or other conditions make it inadvisable, route the
busses so as to get within one mile of all children
who live more than one and one-half miles from
the school to which they are assigned: Provided
further, that all routes so established shall be sub-
ject to the approval of the county board of educa-
tion and the committee of each district. The state
shall not be required to provide transportation for
children living within one and one-half miles of
the school in which provision for their instruc-
tion has been made. All bus routes thus estab-
lished shall be filed with the county board of ed-
ucation prior to the opening of school, and in the
event any of said routes are disapproved by the
county board of education, notice of same shall
be filed with the state school commission and a
hearing on their appeal shall be heard within
thirty days thereafter by the executive committee
•provided for in section 5780(86). (1937, c. 394, s.
25.)
§ 5780(116). Purchase of new equipment. — It
shall be the duty of the tax levying authorities in
the various counties, and they are hereby author-
ized, empowered, and directed to make provisions
in the capital outlay budget for the purchase of
new busses needed to relieve over-crowding, and
to provide for the transportation of children not
transported during the school year one thousand
nine hundred thirty-six, one thousand nine hun-
dred thirty-seven, the county boards of education
shall determine when the busses are over-
crowded; and the state shall provide for the op-
eration of all new busses purchased by the coun-
ties. It shall be the duty of the state of North
Carolina to purchase all school busses used as re-
placements for old public owned busses which
were operated by the state during the school year
one thousand nine hundred thirty-six, thirty-seven.
It shall be the duty of the state school commis-
sion to promulgate rules and regulations that will
insure the greatest safety for the children possi-
ble, including a standard signaling device for giv-
ing the public due notice that the bus is making a
stop. Before purchasing any new school busses,
the state school commission shall cause to be
made a thorough study of the most modern ma-
terials and construction for insuring the safest
equipment possible within the funds available.
(1937, c. 394, s. 26.)
§ 5780(117). Bus drivers. — The authority for
selecting and employing the drivers of school
busses shall be vested in the principal or superin-
tendent of the school at the termination of the
route, subject to the approval of the school com-
mitteemen or trustees of said school and the
county or city superintendent of schools: Pro-
vided, that each driver shall be selected with a
view to having him located as near the beginning
of the truck route as possible; and it shall be law-
ful to employ student drivers wherever such is
deemed advisable. The salary paid each em-
ployee in the operation of the school transporta-
tion system shall be in accordance with a salary
schedule adopted by the state school commission
90 1
§ 5780(118)
EDUCATIONAL INSTITUTIONS OF THE STATE
§ 5805(e)
for that particular type of employee. (1937, c.
394, s. 27.)
§ 5780(118). Contract transportation. — In coun-
ties where school transportation is provided bj
contract with private operators, the state shall
provide funds for operating costs on the standards
adopted for public-owned busses, and it shall be
the duty of the tax levying authorities in the va-
rious counties to provide in the capital outlay
budget the additional funds necessary to pay con-
tracts. (1937, c. 394, s. 28.)
§ 5780(119). Co-operation with highway and
public works commission in maintenance of equip-
ment.— The state school commission is hereby au-
thorized to negotiate with the highway and pub-
lic works commission in co-ordinating all facili-
ties for the repair, maintenance and upkeep of
equipment to be used by the state school commis-
sion in the school transportation system. In all
cases where this is done the state highway and
public works commission shall be reimbursed in
the amount of the actual cost involved for labor
and parts to be determined by an itemized state-
ment filed with the state school commission.
(1937, c. 394, s. 29.)
§ 5780(120). Lunch rooms in schools. — In such
cases as may be deemed advisable by the trustees
or school committee in any school, and where the
same may be deemed necessary because of the
distance of the said school from places where
meals may tie easily obtained, it shall be permis-
sible for the said trustees and the said school
committees, as a part of the functions of the said
public schools, to provide cafeterias and places
where meals may be sold, and operate or cause
the same to be operated for the convenience of
teachers, school officers, and pupils of the said
schools. There shall be no personal liability up-
on the said trustees and school committees, or
members thereof, arising out of the operation of
the said eating places, and it is understood and
declared that the same are carried on and con-
ducted in connection with the public schools, and
because of the necessities arising out of the con-
solidation of the said schools and the inconven-
ience and interruption of the school day caused by
seeking meals elsewhere: Provided, that no part
of the appropriation made by the state for the
public schools shall be expended for the operation
of said cafeterias or eating places, nor shall the
provisions of section 5780(111) apply to the em-
ployees of the cafeterias or eating places, except
such persons as are regularly employed otherwise
in the schools. (1937, c. 394, s. 30.)
§ 5780(121). Accounting as to special school
funds; diversion made misdemeanors. — It shall be
the duty of the county superintendent of public
instruction to examine the records of the county
to see that the proceeds from the poll taxes and
the dog taxes are correctly accounted for to the
school fund each year, and to examine the rec-
ords of the several courts of the county, including
courts of justices of the peace, at least once every
three months to see that all fines, forfeitures and
penalties, and any other special funds accruing to
the county school fund, are correctly and promptly
accounted for to the school fund; and if the su-
perintendent shall find that any such taxes or
fines are not correctly and promptly accounted
for to the school fund, it shall be his duty to make
prompt report thereof to the state school com-
mission and also to the solicitor of the superior
court holding the courts in the district: Provided,
that in any county having a county auditor, county
accountant, or county manager, that the duties
enjoined under the provisions of this section shall
be performed by one of said officers; and if there
are two or more such officers in any county, then
by one of such officers in the order named.
It shall be unlawful for any of the proceeds of
poll taxes, dog taxes, fines, forfeitures, and pen-
alties to be used for other than school purposes,
and the official responsible for any diversion of
such funds to other purposes shall be guilty of a
misdemeanor, and, upon conviction, shall be pun-
ishable by fine or imprisonment in the discretion
of the court: Provided, however, that this section
shall not be construed as making unlawful the
use of such portions of said funds for other pur-
poses as may be provided by the provisions of
this subchapter. (1937, c. 394, s. 31.)
CHAPTER 96
EDUCATIONAL INSTITUTIONS OF THE
STATE
Art. 1. University of North Carolina
§ 5786(1). Certain unclaimed bank deposits to
university. — All bank deposits in connection with
which no debits or credits have been entered with-
in a period of live years, and where the bank is
unable to locate the depositor or owner of such
deposit, shall be deemed derelict property and
shall be paid to the University of North Carolina
and held by it, without liability for profit or in-
terest, until a just claim therefor shall be pre-
ferred by the parties entitled thereto; and if no
such claim shall be preferred within ten years
after such deposit shall be received by it, then the
same shall be held by it absolutely. The receipt
of the University of North Carolina of any de-
posit hereunder shall be and constitute a release
of the bank delivering over any deposit coming
within the provisions of this section from any li-
ability therefor to the depositor or any other per-
son. Provided, that this section shall apply only
to deposits of five dollars ($5.00) and less. (1937,
c. 400.)
Editor's Note.— Section 5786 requires that funds be turned
over to the university when unclaimed "for five years after
the same shall become due," thus raising a question as to
when bank deposits may be said to be "due" within the
meaning of the act. This section, limited to trifling ac-
counts puts that problem out of view by using the date
of the last debit or credit and the unavailability of the
depositor as the tests. The section is specific and manda-
tory, though no penalty is imposed for non-compliance and
it would appear to be within the jurisdiction of the com-
missioner of banks to issue regulations on the subject un-
der the provisions of § 222(a), 15 N. C. I,aw Rev., No; 4,
pp. 350, 351.
Art. 1A. Consolidation of State Institutions into
University of North Carolina
§ 5805(e). Present boards to hold on till July
1, 1932; new board of 100 members; commission-
ers of public charities. —
The members of the board of trustees of the
University or other state institutions of North
[191]
§ 5912(1)
EDUCATIONAL INSTITUTIONS OF THE STATE
§ 5912(n)
Carolina shall be deemed commissioners of public
charities within the meaning of the proviso to
section seven of Article XIV of the Constitution
of North Carolina. (1931, c. 202, s. 5; 1937, c.
139.)
Editor's Note. — The 1937 amendment directed that the
above sentence be added at the end of this section. The
rest of the section, not being affected by the amendment,
is not set out.
In effect this amendment amounts to a legislative dec-
laration that trustees of the university and of other state
institutions are to be exempt from the constitutional ban
on dual office-holding. Just what institutions are em-
braced by the words "other state institutions" is not clear.
Nor is the status of their trustees. That of the university's
trustees, however, is relatively free from doubt. 15 N. C.
law Rev., No. 4, p. 348.
Art. 12. The Caswell Training School
§ 5912(1). Certain acts prohibited, for protec-
tion of inmates. — From and after the passage of
this section it shall be unlawful:
(a) For any person to advise, or solicit, or to
offer to advise, or solicit, any inmate of said
school to escape therefrom;
(b) For any person to transport, or to offer to
transport, in automobile or other conveyance, any
inmate of said school to or from any place: Pro-
vided, this shall not apply to the superintendent
and teachers of said school, or to employees or
any other person acting under the superintendent
and teachers thereof;
(c) For any person to engage in, or to offer to
engage in, prostitution with any inmate of said
school;
(d) For any person to receive, or to offer to
receive, any inmate of said school into any place,
structure, building or conveyance for the purpose
of prostitution, or to solicit any inmate of said
school to engage in prostitution;
(e) For any person to conceal an escaped in-
mate of said school, or to furnish clothing to an
escaped inmate thereof to enable him or her to
conceal his or her identity.
The term "inmate" as used in this section shall
be construed to include any and all boys and
girls, men or women, committed to, or received
into, said Caswell training school under the pro-
visions of the law made and provided for the re-
ceiving and committing of persons to said Cas-
well training school; and the term "prostitution"
shall be construed to include the offering or re-
ceiving of the body for sexual intercourse.
Any person who shall knowingly and wilfully
violate sub-sections (a) and (b) of this section
shall be guilty of a misdemeanor, and shall be
fined or imprisoned, or both fined and imprisoned,
in the discretion of the court; that any person who
shall knowingly and wilfully violate sub-sections
(c), (d) and (e) of this section shall be guilty of
a felony, and shall be fined or imprisoned, or both
fined and imprisoned, in the discretion of the
court. (1937, c. 235.)
§ 5912(2). Payment for student work. — The
superintendent of Caswell training school is
hereby authorized and empowered in his discre-
tion, when funds are available, to pay children of
the school for work done at the Caswell training
school: Provided, that the amount of money so
expended shall not exceed one thousand dollars
($1,000.00) in any one fiscal year. (1937, c. 275.)
Art. 13. Morrison Training School
§ 5912(a). Creation of corporation; name; pow-
ers.— A corporation, to be known and designated
"The Morrison Training School," is hereby cre-
ated, and as such corporation it is authorized and
empowered to accept and use donations and ap-
propriations, hold real estate by purchase or gift,
and do all other things necessary and requisite to
be done for the care, discipline and training of
negro boys which may be received by said cor-
poration. (1921, c. 190, s. 1; 1937, c. 146.)
As to conditional release and final discharge of inmates,
see §§ 7362(p), 7362(q).
Editor's Note. — The 1937 amendment struck out the
words "The State Training School for Negro Boys" and
substituted therefor, the words "The Morrison Training
School."
Art. 16. Educational Advantages for World War
Orphans
§ 5912(m). Free tuition, room rent and board;
certificate of post commander; statement from
veterans administration. — Any child who has been
a resident of North Carolina for two years, and
whose father was killed in action or died from
wounds or other causes while a member of the
armed forces of the United States between April
sixth, one thousand nine hundred seventeen, the
date of the declaration of war, and July second,
one thousand nine hundred twenty-one, the legal
termination thereof, shall be entitled to and
granted a scholarship of free tuition in any of the
state's educational institutions. This scholarship
shall not extend for a longer period than four
academic years.
In addition to the scholarship of free tuition
above provided, there shall also be granted to any
child needing financial assistance who is embraced
within the classification covered by this section,
free room rent and board in any of the state's ed-
ucational institutions which provide rooms and
eating halls operated by the institution. All ap-
plicants desiring to share the benefits of this par-
agraph and who are qualified to meet the entrance
requirements shall submit to the educational in-
stitution they desire to enter a certificate of fi-
nancial need duly executed by commanding offi-
cer of American Legion Post located within same
county as applicant and by the clerk of the supe-
rior court of said county. If no Legion Post is
located in said county, then the certificate may be
signed by commanding officer of nearest Ameri-
can Legion Post.
Said applicant shall also furnish statement from
United States veterans administration showing
that the applicant comes within the class desig-
nated as war orphans and as herein described.
(1937, c. 242, s. 1.)
§ 5912(n). Approval and payment of amounts
charged by institution. — Any state educational in-
stitution furnishing room and board to any child
or children, as provided in this article, may sub-
mit a statement showing the amount of such room
and board to the director of the state budget, and,
after checking the correctness of the amounts
charged, the director of the budget shall submit
such statements to the governor and council of
state for payment from the emergency and con-
tingent fund of the state. (1937, c. 242, s. 2.)
[ 192
§ 5923
ELECTIONS
§ 6055 (al)
CHAPTER 97
ELECTIONS
SUBCHAPTER I. GENERAL ELECTIONS
Art. 3. State Board of Elections
§ 5923. Duties of the state board of elections.
Cited in Swaringen v. Poplin, 211 N. C. 700, 191 S. E. 746.
Art. 4. County Board of Elections
§ 5927. Duties of county boards of elections.
Cited in Swaringen v. Poplin, 211 N. C. 700, 191 S. E. 746.
Art. 5. Precinct Election Officers and Election
Precincts
§ 5928. Appointment of registrars and judges of
(elections ; qualifications.
Editor's Note. — For amendatory act relating to Durham
county, see Public Laws 1937, c. 299.
§ 5932. Compensation of precinct officers.
Editor's Note. — For amendatory act applicable only to
Mecklenburg county, see Public Laws 1937, c. 382.
§ 5933. Duties of registrars and judges of elec-
tion.
Cited in Swaringen v. Poplin, 211 N. C. 700, 191 S. E. 746.
Art. 6. Qualification of Voters
§ 5939. Voter must be able to read and write;
exceptions.
The provisions of this section are valid, since such quali-
fication is prescribed by the Constitution, art. VI, § 4, and
authority therein granted the legislature by art. VI, § 3, to
enact general legislation to carry out the provisions of the
article. Allison v. Sharp, 209 N. C. 477, 184 S. E. 27.
And the provision placing the duty upon the registrar is
logical and reasonable, and does not constitute class legis-
lation, since its provisions apply to all classes, and there
being an adequate remedy at law if a registrar, in bad
faith or in abuse of power or discretion, should refuse to
register a person duly qualified. Allison v. Sharp, 209 N.
C. 477, 184 S. F. 27.
Art. 7. Registration of Voters
§ 5948. Registration books deposited with clerk
of court.
Editor's Note.— Public Laws 1937, c. 404, s. 4, provides
that the provisions of this section "shall not apply to Ran-
dolph county, and hereafter it shall be the duty of the
county board «of elections, after any primary or election, to
determine whether the registration and poll books shall be
deposited for safe keeping with the clerk of the superior
court of the counts'- or with the chairman of the county
board of elections."
Art. 9. Absent Voters
§ 5960. Absent from county; or physically un-
able to attend; certificate, etc.
Editor's Note— Public Laws 1937, c. 129, amended c. 364,
Public Laws 1933, so as to make the provisions of said
chapter as to absentee voting apply to Macon, Clay, Chero-
kee and Graham counties. So now in such counties it is un-
lawful to recall absentee ballots delivered to registrar.
Public Laws 1935, c. 223, exempting Haywood county from
the provisions of this section, was repealed by Public Laws
1937, c. 101.
For amendatory act relating to Randolph county, see Pub-
lic Laws 1937, c. 404, repealing Public Laws 1933, c. 83.
Public Laws 1937, c. 66, amended this article as to
Transylvania county.
Public Laws 1937, c. 373, repealed this article as to Cum-
berland county.
Public Laws 1937, c. 410, repealing this article as to
Caldwell county, provides: "This act shall not apply to
soldiers in time of war or persons in the navy or military
services, school teachers teaching outside of said county
and state or federal government officials and employees."
Article Applicable to Municipal Elections.— This article is
in pari materia with article 18 (§§ 6055 (a -1) et seq.) of this
chapter, and wheri so construed it is manifest that the
absentee ballot law is applicable to municipal elections.
Phillips v. Slaughter, 209 N. C. 543, 183 S. E. 897.
SUBCHAPTER II. PRIMARY ELECTIONS
Art. 17. Primary Elections
§ 6022. Notices and pledges of candidates; with
whom filed. — Every candidate for selection as the
nominee of any political party for the offices of
governor and all state officers, justices of the su-
preme court, the judges of the superior court,
United States senators, members of congress, and
solicitors to foe voted for in any primary election
shall file with and place in the possession of the
state board of elections, by six o'clock p. m. on or
before the tenth Saturday before such primary
election is to be held, a notice and pledge in the
following form, the blanks being properly filled in
and the same signed by the candidate:
"I hereby file my notice as a candidate for the
nomination as in the primary
election to be held on I affiliate with
the party, and I hereby pledge my-
self to ahide by the results of said primary, and
to support in the next general election all candi-
dates nominated by the party."
Every candidate for selection as the nominee of
any political party for the office of state senator in
a primary election, member of the house of rep-
resentatives, and all county and township offices
shall file with the place in the possession of the
county board of elections of the county in which
they reside by six o'clock p. m. on or before the
sixth Saturday before such primary is to be held
a like notice and pledge. (1915, c. 101, s. 6; 1917,
c. 218; 1923, c. Ill, s. 13; 1927, c. 260, s. 19; 1929,
c. 26, s. l; 1933, c. 165, s. 12; 1937, c. 364.)
The 1937 amendment substituted "tenth" for "seventh"
formerly appearing in the ninth line of this section, and
"sixth" for "fourth" formerly appearing in the next to the
last line.— Ed. note.
§ 6023. Filing fees required of candidates in pri-
mary.
For amendatory act/ relating only to Mecklenburg
county, see Public laws 1937, c. 382.— Ed. note.
§ 6054. Certain counties excepted.
Editor's Note.— Public laws 1935, c. 141, repealing Public
laws 1933, c. 327, and placing Avery county under the pri-
mary law for the nomination of candidates for county of-
fices, was repealed, in so far as it applied to Democratic
and independent candidates, by Public laws 1937, c. 263,
which provides that nomination of Democratic) candidates
for county offices and the general assembly shall be made
by a convention.
Public laws 1937, c. 423, struck out Catawba from the
list of excepted counties in this section, so as to place said
county "under the provisions of the state-wide primary
law for the nomination of county officers and members of
the general assembly: Provided, however, no second pri-
mary shall be held in said county for the nomination of said
officers, but the candidate receiving? the highest number
of votes shall be declared the nominee of his political party
for said office."
Public laws 1935, c. 391, striking out Wautauga from the
list of excepted counties in this section, was repealed by
Public laws 1937, c. 264, thus providing for the nomination
of county officers, including the recommendation of the
members of the board of education of said county, in a
county convention.
SUBCHAPTER III. GENERAL ELECTION
LAWS
Art. 18. Election Laws of 1929
§ 6055 (al). Former laws repealed; enactments
in lieu thereof.
For an amendment of Public laws 1933, c. 557, and Pub-
N. C. Supp.— 13
[193]
§ 6055(a2)
GENERAL ASSEMBLY
§ 6104(a)
lie Laws 1935, c. 259, applicable only to Ashe county, see
Public Laws 1937, c. 170.— Ed. note.
This article is tc be construed in pari materia with article
9 (§§ 5960 et seq.) of this chapter. Phillips v. Slaughter,
209 N. C. 543, 183 S. E. 897.
Cited in Harris v. Miller, 208 N. C. 746, 182 S. E. 663.
§ 6055 (a2). Applicable to all subdivisions of
state.
Applied in Phillips v. Slaughter, 209 N. C. 543, 183 S. E.
897.
§ 6055 (a3). Preparation and distribution; defini-
tions.
Applied in Phillips v. Slaughter, 209 N. C. 543, 183 S. E.
897.
§ 6055 (al 9). No loitering or electioneering al-
lowed within 50 feet of polls; regulations for vot-
ing at polling places; banners or placards; guard
rail; diagram. — No person shall, while the polls
are open at polling places, loiter about or do any
electioneering within such polling place or within
fifty feet thereof, and no* political banner, poster,
or placard shall be allowed in or upon such poll-
ing places during the day of the election. The
election officials and ballot boxes shall at all times
be in plain view of the qualified voters who' are
present, and a guard rail shall be placed not nearer
than ten feet nor further than twenty feet from
the said election officials and ballot boxes.
The arrangement of the polling place shall be
substantially according to the diagram, and shall
conform as nearly thereto as the building or other
place in which said election is held will permit:
B
"V
-Y-
"V
O
1
Y
2
Z
X
s^-
E
E. Entrance to voting place.
X. Judge with ballots and box for spoiled bal-
lots.
B. Voting booths.
Y. Polls book.
Z. Ballot box.
0. Box for stubs.
1, 2. Other election officials.
Direction of entry and exit of voter.
(1929, c. 164, s. 19.)
This section was reprinted to correct an error of arrange-
ment in the original.
§ 6055(a24). Who allowed in room or enclosure;
peace officers.
Editor's Note. — For amendatory act applicable* only to
Cumberland county, see Public Laws 1937, c. 426.
§ 6055 (a26). Assistance to voters.
For amendatory
county, see Public
act
Eaws
applicable only;
1937, c. 426.— Ed.
to Cumberland
note.
§ 6055 (a27). Aid to persons suffering from
physical disability or illiteracy.
For amendatory act applicable only to Cumberland county,
see Public Laws 1937, c. 426. For act exempting Cherokee
county, see Public Eaws 1935, c. 461, amended by Public
Laws 1937, c. 391.— Ed. note.
§ 6055(a33). Hours of election.— In all prima-
ries and in all municipal and local elections in this
state the polls shall be open between the hours of
seven a. m. and seven p. m., Eastern Standard
Time: Provided, that no poll shall remain open
after sunset: Provided, further, that in all state-
wide general elections the polls shall be open from
sunrise until sunset. (1937, cc. 258, 457.)
Editor's Note.— Prior to the 1937 amendment this section
provided that in all elections the polls should be open from
sunrise until sunset.
§ 6055 (a39). Ballots furnished absentee electors;
when deemed voted before sunset; deposit in
boxes.
Applied in Phillips v. Slaughter, 209 N. C. 543, 183 S.
E. 897.
§ 6055(a42). Definitions as applied to municipal
primaries and elections.
Applied in Phillips v. Slaughter, 209 N. C. 543, 183 S E.
897.
Art. 19. Corrupt Practices Act of 1931
§ 6055 (a54). Compelling self -incriminating tes-
timony; person so testifying excused from prose-
cution.
For a general discussion of the limits to self-incrimination,
see 15 N. C. Law Rev., No. 3, p. 229.
CHAPTER 97A
ENGINEERING AND LAND SURVEYING
§ 6055(q). Land surveying.
Editor's Note.— Public I,aws 1937,; c. 110, applicable to
Cumberland county only, added the words "and running
levels" at the end of the first sentence.
CHAPTER 100
GENERAL ASSEMBLY
Art. 1. Apportionment of members
§ 6088. House of representatives.
Editor's Note. — The name of Bertie county does not ap-
pear in this section because it was omitted in Public Laws
1921, c. 144, from which the section was accurately copied.
Apparently this omission was an inadvertence on the part
of the legislature.
Art. 5 A. Information to Committees
§ 6104(a). State officers, etc., upon request, to
furnish data and information to legislative commit-
tees. — All officers, agents, agencies, and depart-
ments of the state are required to give to any com-
mittee of the general assembly, upon request, all
information and all data within their possession,
or ascertainable from their records. This require-
ment is mandatory and shall include requests made
by any individual member of the general assembly
or any of its committees or chairmen thereof.
(Resolution 19, 1937, p. 927.)
[194]
§ 6122(j)
INSURANCE
§ 6294
CHAPTER 101
GEOLOGICAL SURVEY AND FORESTS,
ETC.
Art. 1(A). Department of Conservation and
Development
§ 6122(j). Powers and duties of the board.
For act authorizing disposition of mineral deposits of state
in state waters, see Public Laws 1937, c. 385. For act au-
thorizing acquisition of lands located within, or in close
proximity to, federal land use projects, see Public Laws
1937, c. 228.— Fd. note.
§ 6122(j)l. Advertising of state resources and
advantages. — It is hereby declared to be the duty
of the department of conservation and develop-
ment to map out and to carry into effect, under
the direction and with the approval of the director
of the budget, a systematic plan for the nation-
wide advertising of North Carolina, properly pre-
senting, by the use of any available advertising
media, the true facts concerning the state of North
Carolina and all of its resources. (1937, c. 160.)
Art. 3. State Forests, Parks, etc., by Donation,
Lease or Purchase
§ 6126(1). Donations of property for forestry or
park purposes; agreements with federal govern-
ment or agencies for acquisition.
Editor's Note. — For act relating to acquisition of lands for
Morrow Mountain State Park, see Public Laws 1937, c. 141.
Art. 4. Private Lands Designated as State Forests
§ 6131. Powers of state forest wardens.
For an article on the law of arrest in North Carolina, see
15 N. C. Law Rev., No. 2, p. 101.
Art. 5. Protection against Forest Fires
§ 6137. Powers of forest wardens to prevent and
extinguish fires.
Cited in Tomlinson v. Norwood, 208 N. C. 716, 182 S. F-
659.
CHAPTER 103
HOSPITALS FOR THE INSANE
Art. 2. Officers and Employees
§ 6181. Superintendent may appoint employees
as policemen, who may arrest without warrant.
For an article on the law of arrest in North Carolina, see
15 N. C. Law Rev., No. 2, p. 101.
CHAPTER 103 A
HOUSING AUTHORITIES AND PROJECTS
Art. 2. Municipal Cooperation and Aid
§ 6243(30). Finding and declaration of necessity.
For an analysis of this article,
No. 4, p. 379.
13 N. C. Law Rev.,
CHAPTER 106
INSURANCE
SUBCHAPTER I. INSURANCE DEPART-
MENT
Art. 2. Insurance Commissioner
§ 6274. Authority over all insurance companies;
no exemptions from license.
Cited in Fuller v. Lockhart, 209 N. C. 61, 182 S. F- 733.
Art. 3. General Regulations for Insurance
§ 6287. State law governs insurance contracts.
Place Determined by Application. —
In accord with original. See Cordell v. Brotherhood of
Locomotive Firemen, etc., 203 N. C. 632, 182 S. F. 141.
Effect of Stipulation, Making Policy a Foreign Contract. —
In accord with original. See Cordell v. Brotherhood ot
Locomotive Firemen, etc., 208 N. C. 632, 182 S. F. 141.
Laws in Force Become Part of Insurance Contract. —
Laws in force at the time of executing a policy of insur-
ance are binding on the insurer and become a part of the
insurance contract. Fuller v. Lockhart, 209 N. C. 61, 182
S. F- 733.
Applied in Wells v. Jefferson Standard Life Ins. Co.,
211 N. C. 427, 190' S. E. 744.
§ 6288. No insurance contracts except under
this chapter.
Applied in Wells v. Jefferson Standard Life Ins. Co., 212
N. C. 427, 190 S. E. 744.
§ 62189. Statements in application not warranties.
Material Representations. —
Under this section, a failure to disclose the fact that in-
sured had had some time previous to her application one-
half degree of fever due to a mild form of malaria and from
which she had entirely recovered, taken in connection with
the further fact that she was at the time of the applica-
tion in sound health and otherwise insurable, was held not
material. Wells v. Jefferson Standard Life Ins. Co., 211
N. C. 427, 430, 190 S. E. 744.
Fraud is not essential under this section and as a gen-
eral rule recovery will not be allowed if the statements
made and accepted as inducements to the contract of in-
surance are false and material. Wells v. Jefferson Standard
Life Ins. Co., 211 N. C. 427, 429, 190 S. E. 744.
False Material Rt presentations, Although Not Fraudulent,
Void Policy. — For the reason that the representations were
material to the issuance of the certificate and notwith-
standing the evidence for1 tho plaintiff which tended to
show that the representations, although false, were not
fraudulent, under the provisions of this section, and of the
certificate, the certificate of insurance was null and void
and of no effect. 'Inman v. Sovereign Camp, W. O. W., 211
N. C. 179, 181, 189 S. E. 496.
Where insured stated she was not pregnant and died of
childbirth in less than nine months, it is held that this
statement does not preclude recovery, in view of the evi-
dence that insurer issued its policies on the life of the in-
sured when it knew she was 33 years of age, had been mar-
ried about a year, and that ordinarily pregnancy might be
expected, and it required an additional premium on that ac-
count. Wells v. Jefferson Standard Life Ins. Co., 211 N. C.
427, 430, 190 S. E. 744.
Burden Is on Insurer to Prove Misrepresentation. — By
offering in evidence the policy of insurance and the in-
surer's admission of its execution and delivery and of the
death of the insured, the beneficiaries made out a prima
facie case, and the burden was then upon the insurer to
rebut it by proof of the alleged misrepresentation. And
though the beneficiaries, in anticipation of the defense,
elected to offer testimony as to misrepresentations, this did
not change this rule as to the burden of proof. Wells v.
Jefferson Standard Life Ins. Co., 211 N. C. 427, 431, 190 S.
E. 744.
§ 6291. Insurance as security for a loan by the
company.
This section was held not to exempt insurance companies
from the provisions of § 2305 and § 2306, relating to usury,
the purport and effect of the section being merely to allow
insurance companies to require as a condition precedent to
the loan of money that the borrower take out a policy of
insurance and assign same as security for the loan. Co-
wan v. Security Life, etc., Co., 211 N. C. 18, 188 S. E. 812.
If this section did provide that insurance companies should
be exempt from § 2305 and § 2306, it would be void as in
violation of Art. I, sec. 7, of the Constitution. Id.
A ten-year endowment policy comes within the provisions
of this section, when such endowment policy provides that
the face amount thereof shall be paid to the beneficiary if
insured dies during the ten- year period while the policy is
in force. Id.
§ 6294. Liabilities and reserve fund determined.
This section in no way impinges on the Constitution.
195
§ 6294(1)
INSURANCE
§ 6355(1)
Hardware Mut. Fire Ins. Co. v. Stinson, 210 N. C. 69, 78,
185 S. Fv. 449.
Unearned premiums are a liability of the company. Id.
§ 6294(1). Corporation or association maintain-
ing office in state required to qualify and secure
license. — Any corporation or voluntary association,
other than an association of companies, the mem-
bers of which are licensed in this state, issuing
contracts of insurance and maintaining a principal,
branch, or other office within this state, whether
soliciting business in this state or in foreign states,
shall qualify under the insurance laws of this state
applicable to the type of insurance written by such
corporation or association and secure license from
the insurance commissioner as provided under
chapter one hundred and six of the Consolidated
Statutes of one thousand nine hundred and nine-
teen and all amendments thereof, and the officers
and agents of any such corporation or association
maintaining offices within this state and failing to
qualify and secure license as herein provided shall
be deemed guilty of a misdemeanor and upon con-
viction thereof shall be fined or imprisoned, or
both, at the discretion of the court. (1937, c. 39.)
§ 6304. Payment of premium to agent valid ; ob-
taining by fraud a crime.
Where a policy provided that premiums were payable to
a duly authorized agent only in exchange for insurer's of-
ficial receipt and where plaintiff's evidence showed pay-
ment of a note given for a premium to insurer's agent with-
out obtaining the note or insurer's official receipt, and there
was no evidence that insurer ever received any part of the
payment, in insured's action to recover the premium paid
after insurer had declared the policy forfeited, it was held
that insurer's motion to nonsuit was properly allowed, pay-
ment to the agent under the circumstances not constituting
payment to insurer. Mills v. New York lyife Ins. Co., 209 N.
C. 296, 183 S. E. 289.
Art. 5. License Fees and Taxes
§ 6318. Schedule of license fees, taxes, and
charges.
Editor's Note. — This section, except as it concerns fixed
charges and fees, is superseded every two years through
the enactment of the Revenue Bill. See § 7880(116).
SUBCHAPTER II. INSURANCE COM-
PANIES
Art. 8. Mutual Insurance Companies
§ 6348. Policyholders are members of mutual
fire companies.
This section is an enabling statute to protect a trustee!
from liability. Fuller v. Lockhart, 209 N. C. 61, 70, 182 S. E-
733.
The policyholders in a mutual fire insurance company are
not stockholders therein, and are in no way liable for the
debts of the company beyond the contingent liability fixed
in the policy. Id.
This and § 6351 do not indicate legislative intent to pro-
hibit county board? of education insuring property in mu-
tual companies by failing1 to expressly grant such au-
thority. Id.
§ 6351. Dividends and assessments; liability of
policyholders.
This section provides the terms and method of how mu-
tual insurance can cperate in this state. Those who pur-
chase mutual insurance have their rights fixed. Fuller v.
Lockhart, 209 N. C. 61, 70, 182 S. E. 733.
Art. 8 A. Conversion of Stock Corporations into
Mutual Corporations
§ 6355(1). Domestic stock life insurance corpo-
rations authorized to convert into mutual corpora-
tions; procedure. — Any domestic stock life insur-
ance corporation may become a mutual life insur-
ance corporation, and to that end may carry out
a plan for the acquisition of shares of its capital
stock: Provided, however, that such plan (first)
shall have been adopted by a vote of a majority
of the directors of such corporation; (second)
shall have been approved by a vote of the holders
of two-thirds of the stock outstanding at the time
of issuing the call for a meeting for that purpose;
(third) shall have been submitted to the insurance
commissioner and shall have been approved by
him in writing, and (fourth) shall have been ap-
proved by a majority vote of the policyholders (in-
cluding, for the purpose of this article, the em-
ployer or the president, secretary or other execu-
tive officer of any corporation or association to
which a master group policy has been issued, but
excluding the holders of certificates or policies is-
sued under or in connection with a master group
policy) voting at said meeting, called for that pur-
pose, at which meeting only such policyholders
whose insurance shall then be in force and shall
have been in force for at least one year prior to
such a meeting shall be entitled to vote; notice of
such a meeting shall be given by mailing such no-
tice, postage prepaid, from the home office of such
corporation at least thirty days prior to such meet-
ing to such policyholders at their last known post-
office addresses: Provided, that personal delivery
of such written notice to any policyholder may be
in lieu of mailing the same; and such meeting shall
be otherwise provided for and conducted in such
manner as shall be provided in such plan: Pro-
vided, however, that policyholders may vote in
person, by proxy, or by mail; that all such votes
shall be cast by ballot, and a representative of the
insurance commissioner shall supervise and direct
the methods and procedure of said meeting and
appoint an adequate number of inspectors to con-
duct the voting at said meeting who shall have
power to determine all questions concerning the
verification of the ballots, the ascertainment of the
validity thereof, the qualifications of the voters,
and the canvass of the vote, and who shall certify
to the said representative and to the corporation
the results thereof, and with respect thereto shall
act under such rules and regulations as shall be
prescribed by the insurance commissioner; that all
necessary expenses incurred by the insurance com-
missioner or his representative shall be paid by
the corporation as certified to by said commis-
sioner. Every payment for the acquisition of any
shares of the capital stock of such corporation, the
purchase price of which is not fixed by such plan,
shall be subject to the approval of the commis-
sioner: Provided, that neither such plan, nor any
payment thereunder, nor any payment not fixed
by such plan, shall be approved by the commis-
sioner, if the making of such payment shall reduce
the assets of the corporation to an amount less
than the entire liabilities of the corporation, in-
cluding therein the net values of its outstanding
contracts according to the standard adopted by the
insurance commissioner, and also all other funds,
contingent reserves and surplus which the corpo-
ration is required by order or direction of the in-
surance commissioner to maintain, save so much
of the surplus as shall have been appropriated or
paid under such plan. (1937, c. 231, s. 1.)
For a discussion of act from which this article is codified,
see 15 N. C. Law Rev., No. 4, p. 359.
[196]
§ 6355(2)
INSURANCE
§ 6476(aa)
§ 6355(2). Stock acquired to be turned over to
voting trust until all stock acquired; dividends re-
paid to corporation for beneficiaries. — If a domes-
tic stock life insurance corporation shall determine
to become a mutual life insurance corporation it
may, in carrying out any plan to that end under
the provisions of section 6355(1), acquire any
shares of its own stock by gift, bequest or pur-
chase. And until all such shares are acquired, any
shares so acquired shall be acquired in trust for
the policyholders of the corporation as hereinafter
provided, and shall be assigned and transferred on
the books of the corporation to not less than three
nor more than five trustees, and be held by them
in trust and be voted by such trustees at all corpo-
rate meetings at which stockholders have the right
to vote until all of the capital stock of such cor-
poration is acquired, when the entire capital stock
shall be retired and canceled; and thereupon, un-
less sooner incorporated as such, the corporation
shall be and become a mutual life insurance cor-
poration without capital stock. Said trustees shall
be appointed and vacancies shall be filled as pro-
vided in the plan adopted under section 6355(1).
Said trustees shall file with the corporation and
with the insurance commissioner a verified accept-
ance of their appointments and declaration that
they will faithfully discharge their duties as such
trustees. After the payment of such dividends to
stockholders or former stockholders as may have
been provided in the plan adopted under section
6355(1), all dividends and other sums received by
said trustees on said shares of stock so acquired,
after paying the necessary expenses of executing
said trust, shall be immediately repaid to said cor-
poration for the benefit of all who are or may be-
come policyholders of said corporation and enti-
tled to participate in the profits thereof, and shall
be added to and become a part of the surplus
earned by said corporation, and be apportionable
accordingly as a part of said surplus among said
policyholders. (1937, c. 231, s. 2.)
Art. 15. Reciprocal or Inter-Insurance Exchanges
§ 6398. Exchange of insurance contracts author-
ized; power of attorney. —
The attorney in fact for each of such exchanges
shall be required to obtain a written power of at-
torney executed by each of the subscribers and
have the same in his or its possession before any
contracts of insurance of any kind or description
shall be issued or renewed to subscribers, and a
full copy of the provisions of the power of attor-
ney used at the exchange and on file with the in-
surance commissioner under the requirements of
section six thousand three hundred ninety-nine,
subsection four, shall be incorporated into and
made a part of all contracts or policies issued to
subscribers in this state. (1913, c. 183, ss. 1, 2;
1937, c. 130.)
Editor's Note. — The 1937 amendment directed that the
above provision be added at the end of this section. The
rest of the section, not being affected by the amendment,
is not set out here.
Art. 16. Foreign Insurance Companies
§ 6411. Conditions of admission.
Cited in Fuller v. Lockhart, 209 N. C. 61, 182 S. F- 73.3.
SUBCHAPTER III. FIRE INSURANCE
Art. 17. General Regulations of Business
§ 6418. Policies limited as to amount and term.
Construction of Policy. — Where plaintiffs', property con-
sisted of one building containing three stores, and the in-
surer contended that the policy issued covered only one of
the stores and not the entire building, it appearing that
that amount of the policy was greatly in excess of the
value of the one store, but was about the value of the en-
tire building, and that insured paid the premium based up-
on the amount for which the policy was issued, it was held
that in construing the policy it would not be presumed that
insurer charged a premium based upon a valuation greatly
in excess of the value of the property insured in violation
of this and § 6435, but that the policy covered the entire
building. Williams v. Greensboro Fire Ins. Co., 209 N. C.
765, 185 S. F. 21.
§ 6433. Punishment for issuing fire policies con-
trary to law.
See the note to § 6418 in this supplement.
Art. 18. Fire Insurance Policies
§ 6435. Items to be expressed in policies; agent
to inspect risks.
See the note to § 6418 in this supplement.
§ 6437. Form of standard policy.
I. THE APPLICATION AND CONTRACT
IN GENERAL.
Agreements in the policy contrary to statutory provisions
are void. Buckner v. United States Fire Ins. Co., 209 N.
C. 640, 184 S. F. 520.
IV. LIABILITY OF COMPANY IN CASE OF LOSS.
Subrogation.—
Upon paying the loss by fire, insurer is entitled to sub-
rogation to the rights of insured against the third person
tort-feasor causing the loss, to the extent of the amount
paid, both by provision of this section and under equitable
principles. Buckner v. United States Fire Ins. Co., 209 N.
C. 640, 184 S. E. 520.
This section does not provide that insurer should be sub-
rogated to rights of the mortgagee against the mortgagor,
and under the facts of this case insurer is not entitled to the
subrogation claimed upon any equitable principle, and in-
surer's subrogation receipt from the mortgagee is not valid
or binding as against the owner mortgagor. Id.
SUBCHAPTER IV. LIFE INSURANCE
Art. 21. General Regulations of Business
§ 6460. Medical examination required.
Scope of Section. — Where the application contained false
representations as to matters other than the physical con-
dition of the applicant, this section, if applicable at all, is
not determinative of the question whether the insurer was
liable on a policy issued in reliance on false though not
fraudulent representations. Innian v. Sovereign Camp, W.
O. W., 211 N. C. 179, 181, 189 S. F- 496.
Policy Can Not Be Avoided unless Misrepresentations Were
Fraudulently Made. — Where the jury finds that insured in
a policy issued without medical examination was suffering
with certain diseases stipulated in the policy as grounds for
avoidance, but that insured did not procure the policy by
false and fraudulent statements, insurer may not avoid lia-
bility under the policy, the provisions of the policy in con-
flict with the statute being unavailing to insurer. Fckard
v. Metropolitan Life Ins. Co., 210 N. C. 130, 185 S. F. 671.
But Fraud Need Not Be Alleged in Direct Terms.— Where
in an action upon an insurance policy it was conceded with-
out deciding that the provisions of this section cover an ap-
plication for reinstatement of a lapsed policy as well as an
initial contract, it was held that the insurer's answer set
out elements of fraudulent misrepresentation sufficient to
raise an issue, it not being necessary that fraud be alleged
in direct terms. Petty v. Pacific Mut. Life Ins. Co., 210
N. C. 500, 187 S. F- 816.
Art. 22 B. Mutual Burial or Assessment Insurance
Associations
§ 6476(aa). Mutual burial associations placed
under supervision of insurance commissioner. — All
[ 197
§ 6476 (bb)
INSURANCE
§ 6476 (cc)
mutual burial associations now organized and op-
erating in the state of North Carolina, and all mu-
tual burial associations hereafter organized within
the state of North Carolina or operating within the
state, shall be under the supervision and control of
the insurance commissioner of the state of North
Carolina, such control to be that provided for
hereinafter in this law. (1937, c. 239, s. 1.)
Editor's Note.— The early history of mutual insurance,
particularly of the fraternal variety, is a sad story of bad
financing-. Insolvencies, all too frequent, were disastrous to
policyholders. This has been a lesson well learned. The
instant statute, with its strict provisions for continued sol-
vency, coupled with penalties for violation, is the commend-
able fruit of that lesson. This statute, if properly enforced,
would render well-nigh impossible the existence of wildcat
burial associations, but for one omission. It unfortunately
applies only to mutual organizations. 15 N. C. I,aw Rev.,
No. 4, p. 359.
§ 6476 (bb). Separate branches required for white
and colored races. — All burial associations now op-
erating in the state of North Carolina and all
burial associations hereafter organized and oper-
ated in the state of North Carolina, for the benefit
of both races, shall maintain and operate two sep-
arate branches, and the provisions of this law shall
apply to each branch as a separate association, ex-
cept as provided in section 6476(11). (1937, c. 239,
s. 2.)
§ 6476 (cc). Requirements as to rules and by-
laws.— All burial associations now operating with-
in the state of North Carolina and all burial asso-
ciations hereafter organized and operating within
the state of North Carolina shall have and main-
tain rules and by-laws embodying in substance the
following:
Article 1. The name of this association shall be
(here insert name), which shall indicate that said
association is a mutual burial association.
Article 2. The objects and purposes for which
this association is formed and the purpose for
which it has been authorized to operate, shall be
to provide a plan for the payment of only one fu-
neral benefit for each member of this association,
which benefit must be one funeral in merchandise
and service, and in no case shall any cash payment
be made, except as written in the certificate and as
hereinafter provided for in this law, by assessment,
such funeral benefit to be in the amount of one
hundred dollars ($100.00) for persons of the age
ten years and over and in the amount of fifty dol-
lars ($50.00) for persons under the age of ten
years.
Article 3. Any person of the white (colored)
race who has passed their first birthday and who
has not passed their sixty-fifth birthday, and who
is in good health and not under treatment of any
physician, may become a member by the payment
of a membership fee of twenty-five cents (25c).
Article 4. The annual meeting of the association
shall be held at (insert here the place, date, and
hour).
Each member shall have one vote at said an-
nual meeting, and fifteen members of said associa-
tion shall constitute a quorum. There shall be
elected at the annual meeting of said association a
board of directors of seven members, each of
whom shall serve for a period of from one to five
years and/or until his or her successor shall have
been elected and qualified. Any member of the
board of directors who fail to maintain his or her
[1
membership, as provided elsewhere in these rules
and by-laws, shall be dropped from the list of di-
rectors, and a director shall be appointed by the
secretary of said association for the unexpired
term of such disqualified member. There shall be
at least an annual meeting of the board of direc-
tors, and such meeting shall be held immediately
following the annual meeting of the membership
of the association; and it shall be the duty of the
board of directors, in annual meeting, to elect a
president, vice-president and secretary-treasurer.
The president and vice-president shall be elected
from among the directors, but the secretary-treas-
urer may be selected from the membership, and
such secretary-treasurer need not necessarily be a
member of the board of directors. The secretary-
treasurer shall be the only paid officer of the asso-
ciation, and his compensation shall be set by the
board of directors. The duties of the secretary-
treasurer shall be chargeable with keeping an ac-
curate and faithful roll of the membership of this
association at all times, and he shall be chargeable
with the duty of faithfully preserving and apply-
ing all moneys coming into his hands by virtue of
said office. The president, vice-president and sec-
retary shall constitute a board of control who shall
direct the affairs of the association in accordance
with these articles and by-laws, subject to such
modification as may be made by act of the general
assembly. The secretary-treasurer shall keep a
record of all assessments made, dues collected and
benefits paid or provided. The books of the asso-
ciation shall be open at all times to the inspection
of the officers of the association, and subject to
the inspection of the insurance commissioner of
the state of North Carolina or his duly authorized
agent or deputy.
Article 5. Upon the death of any officer, his suc-
cessor shall be elected by the board of directors
for the unexpired term. The president, vice-presi-
dent and secretary-treasurer shall be elected for
a term of from one to five years, and shall hold
office until his successor is elected and qualified,
subject to the power of the board of directors to
remove any such officer for good cause shown:
Provided, that any officer removed by the board
of directors shall have the right of appeal to the
membership of the association, such appeal to be
heard at the next ensuing meeting of said mem-
bership.
Article 6. Each member shall be assessed ac-
cording to the following schedule (or in multiples
thereof) at the age of entry of the member: Pro-
vided, those members joining at ages under ten
shall be charged with the assessment for age ten
when they reach their tenth birthday:
Assessment rate for age groups:
First to tenth birthday five cents ( 5c)
Tenth to thirtieth birthday ten cents (10c)
Thirtieth to fiftieth birthday. . .twenty cents (20c)
Fiftieth to sixty-fifth birthday. ..thirty cents (30c)
(Ages shall be defined as having passed a certain
birthday instead of nearest birthday.) Assessment
shall always be made on the entire membership in
good standing, and the frequency of the assess-
ments will be governed by the death rate within
the association.
Article 7. No benefit will be paid for natural
death occurring within thirty days from the date
98 ]
§ 6476 (cc)
INSURANCE
§ 6476 (cc)
of the certificate of memibership, which certificate
shall express the true elate such person becomes
a member of this association, and the certificate
issued shall be in acknowledgment of membership
in this association. Benefits will be paid for death
caused by accidental means occurring any time
after date of memibership certificate. No benefits
will be paid in case of suicidal death of any mem-
ber within one year from the date of the member-
ship certificate. No agent or other person shall
have authority to issue membership certificates in
the field, but such membership certificates shall
be issued at the home office of the association by
duly authorized officers — the president, vice-presi-
dent or secretary, and a record thereof duly made.
Article 8. Any member failing to pay any assess-
ment within thirty days after notice shall be in
bad standing and, unless and until restored, shall
not be entitled to benefits. Notice shall be pre-
sumed duly given when mailed, postage paid, to
the last known address of such members: Pro-
vided, moreover, that notice to the head of a fam-
ily shall be construed as notice to the entire mem-
bership of such family in said association. Any
member or head of a family changing his or her
address shall give notice to the secretary-treasurer
in writing of such change, giving the old address
as well as the new, and the head of a family notify-
ing the secretary-treasurer of change in address
shall list with the secretary in such notice all the
members of his or her family having membership
in said association. Any member in bad standing
may, within ninety days after the date of an as-
sessment notice, be reinstated to good standing by
the payment of all delinquent dues and assess-
ments and provided such person shall at the same
time submit to the secretary-treasurer satisfactory
evidence of good health, in writing, and no bene-
fit will be paid for natural death occurring within
thirty days after reinstatement. In case of death
caused by accidental means, benefit will be in
force immediately after reinstatement. Any per-
son desiring to discontinue his membership for
any reason shall communicate such desire to the
secretary-treasurer immediately and surrender his
or her certificate of membership. Any adult mem-
ber who is the head of a family, and who, with his
family, have become in bad standing, shall furnish
to the secretary-treasurer satisfactory evidence of
the good health of each member desired to be re-
instated in writing.
Article 9. The benefits herein provided are for
the purpose of furnishing a funeral and burial
service for a deceased member. The service shall
be in keeping with the services and casket, sold at
the same price, similar to that provided and
charged by reputable funeral directors of this or
other like communities.
Article 10. It is understood and stipulated that
the funeral and burial service provided in article
nine hereof shall be rendered by (give name of
funeral director and town), which funeral director
is designated in these rules and by-laws as the of-
ficial funeral director of this association, and such
funeral director shall be, by the secretary-treasurer
of this association, immediately notified upon the
death of any member, and upon the death of any
member it shall be the duty of his or her nearest
relative to notify the secretary-treasurer of the as-
sociation of the death of such member. In the
event a member in good standing shall die at a
place beyond the territory served by the above
named funeral director, the secretary of this asso-
ciation, being notified of such death, shall cause
the deceased to receive a funeral and burial service
equal to that provided for in these by-laws. The
benefits provided for are to be payable to the fu-
neral director rendering such funeral and burial
service, which payment the secretary-treasurer is
authorized to make. If the secretary-treasurer of
the association shall fail, on demand, to provide
the benefits as listed in article nine of these rules
and by-laws by arrangement with the official fu-
neral director serving the community in which the
services are required, then the benefits shall be
paid in cash to the representative of the deceased
qualified under law to receive such payments.
Article 11. If the proceeds of one assessment on
the entire membership produces more than enough
for burial or burials, on account of which said as-
sessment is made, the balance shall be placed in
the treasury of the association to apply on future
burials. Assessments shall be made in such multi-
ples of the assessment rate as is necessary to pro-
vide a fund to take care of anticipated deaths until
the next assessment period. Whenever possible,
assessments will be made at definitely stated inter-
vals so as to reduce the cost of collection and to
prevent lapse.
Article 12. In the event the proceeds of one as-
sessment on the entire membership does not prove
sufficient at any time to yield the benefit provided
for in these by-laws, then the secretary-treasurer
shall notify the insurance commissioner who shall
be authorized, unless the membership is increased
to that point where such assessment is sufficient,
to cause liquidation of said association, and may
transfer all members in good standing to a like
organization or association.
Article 13. All legitimate operating expenses of
the association shall be paid out of the assess-
ments, but in no case shall the entire expenses ex-
ceed twenty-five per cent of the assessments col-
lected: Provided, the entire amount of the mem-
bership fee may be used for expenses, if necessary.
Article 14. Special meetings of the association
membership may be called by the secretary-treas-
urer when by him deemed necessary or advisable,
and he shall call a meeting when petitioned to do
so by sixty-six and two-thirds per cent of the
membership of said association.
Article 15. The secretary-treasurer shall, upon
satisfactory evidence that membership was granted
to any person not qualified at the time of entry as
provided under article three of these by-laws, re-
fund any amounts paid as assessment, and shall
remove the name from the membership roll.
Article 16. Any member may pay any number
of assessments in advance, in which case such
member will not be further assessed until a like
number of assessments shall have been levied
against the remaining membership.
Article 17. No person may maintain active mem-
bership in two separate burial associations, and
upon evidence that membership is maintained con-
trary to this article, the secretary-treasurer may
call upon such member to forfeit all benefits and
fees paid in either one or the other of the associa-
[199]
§ 6476(dd)
INSURANCE
§ 6476 (11)
tions: Provided, that in the event a person dies,
and if being a member of more than one associa-
tion, the association not called on to render the
funeral and burial service shall be relieved of any
claim or demand on account of membership in
such association.
Article 18. Each year before the annual meeting
of the membership of this association the associa-
tion shall cause to be mailed to each member a
statement showing the total income collected, ex-
penses paid and iburial benefits provided for the
year next past (giving the names of each person
buried) : Provided, a statement mailed to the head
of a family shall be regarded as notice to each
member of such family holding membership in the
association.
Article 19. These rules and by-laws shall not
be modified or abridged except tby act of the gen-
eral assembly of North Carolina. (1937, c. 239,
s. 3.)
§ 6476 (dd). Unlawful to operate without writ-
ten authority of insurance commissioner. — It shall
be unlawful for any person, firm, corporation, as-
sociation or organization to organize, operate or
in any way solicit members for a burial associa-
tion, or for membership or participation in any
plan, scheme, system or device similar to a burial
association without written authority of the North
Carolina insurance commissioner, and any person,
firm or corporation violating the provisions of
this section shall be guilty of a misdemeanor, and
upon conviction thereof shall be fined not less
than fifty dollars ($50.00) or thirty days in jail,
or both, in the discretion of the court: Provided,
however, the insurance commissioner shall not
withhold authority for the organization or opera-
tion of a bona fide burial association, unless it
shall be found and established to the satisfaction
of the said insurance commissioner that the per-
son or persons applying for authority to organize
and operate such bona fide burial association is
disqualified under law. (1937, c. 239, s. 4.)
§ 6476 (ee). Penalty for failure to operate in
substantial compliance with law. — Any burial as-
sociation or other organization, or official thereof,
or any other person who operates or allows to be
operated a burial association on any plan, scheme
or by-laws not in substantial compliance with the
by-laws set forth in section 6476 (cc), the insur-
ance commissioner shall be authorized to revoke
any authority or license granted for the operation
of any burial association, and any convicted of
the violation of this section shall be guilty of a
misdemeanor, shall be fined not less than fifty
dollars ($50.00) and/or thirty days in jail, or both
in the discretion of the court. (1937, c. 239, s. 5.)
§ 6476 (ff). Penalty for wrongfully inducing
person to change membership. — Any burial asso-
ciation official, agent or representative thereof, or
any person who uses fraud or makes any promises
not a part of the printed by-laws, or offers any
re'bate, gratuity or refund to cause a member of
one association to change membership to another
association shall be deemed guilty of a misde-
meanor, and upon conviction shall have his or her
license revoked, and shall be fined not less than
fifty dollars ($50.00) and/or thirty days in jail, or
iboth, in the discretion of the court. (1937, c. 239,
s. 6.)
§ 6476 (gg). Penalty for making false and
fraudulent entries, — Any burial association official
who makes, or allows to be made, any false entry
on the books of the association with intent to de-
ceive or defraud any member thereof, or with the
intent to conceal from the insurance commissioner
or his deputy or agent the true status of the as-
sociation, shall be guilty of a misdemeanor, and
upon conviction be fined not less than fifty dol-
lars ($50.00) and/or thirty days in jail, or both,
in the discretion of the court. (1937, c. 239, s. 7.)
§ 6476 (hh). Accepting application without col-
lecting fee. — Any burial association official, agent
or representative or any other person who accepts
an application for membership in any association
without collecting the membership fee from any
person making such application for membership
shall be guilty of a misdemeanor, and upon con-
viction shall be fined not less than fifty dollars
($50.00) and/or thirty days in jail, or both, in the
discretion of the court. (1937, c. 239, s. 8.)
§ 6476 (ii). Removal of secretary- treasurer for
failure to maintain proper records. — Any burial
association secretary or secretary-treasurer who
fails to maintain records to the minimum stand-
ards required by the insurance commissioner shall
be brought before a special meeting of the mem-
bership, which meeting shall be called by the
president or vice-president of the association, and
unless such corrections shall be made as are sat-
isfactory to the board of directors of such asso-
ciation, within such time as the said board shall
require, the said secretary or secretary-treasurer
shall be removed from office and another elected
in his stead by the board of directors. (1937, c.
239, s. 9.)
§ 6476 (jj). Penalty for failure to make proper
assessments. — Any burial association officer who
accepts donations from any source, or who con-
tributes money or funeral services, or in any way
fails to assess for the amount needed to pay death
losses and allowable expenses shall toe guilty of a
misdemeanor, and upon conviction shall be fined
not less than fifty dollars ($50.00) and/or thirty
days in jail, or both, in the discretion of the court.
(1937, c. 239, s. 10.)
§ 6476 (kk). Right of appeal upon revocation
of license. — Upon the revocation of any license or
authority by the insurance commissioner, under
any of the provisions of this law, the said asso-
ciation or individuals whose license have been re-
voked shall have right to appeal from said revo-
cation to the superior court of Wake county,
North Carolina. (1937, c. 239, s. 10a.)
§ 6476(11). Loss reserve; deposit with insur-
ance commissioner of securities. — Section six
thousand three hundred and sixty of the Consoli-
dated Statutes of North Carolina shall, except as
hereinafter amended, apply to mutual burial asso-
ciations, which section is as follows: "Each do-
mestic insurance company, association, order or
fraternal benefit society doing business on the as-
sessment plan shall collect and keep at all times
in its treasury one regular loss assessment suffi-
cient to pay one regular average loss, and no such
company, association, order or fraternal benefit
society shall be licensed by the insurance com-
missioner unless it makes and maintains with him
[ 200 ]
§ 6476(mm)
INSURANCE
§ 6508
for the protection of its obligations at least five
thousand dollars ($5,000.00) in United States or
North Carolina bonds, in farm loan bonds issued
by federal loan banks or in the bonds of some
city, county or town of North Carolina, to be ap-
proved by the insurance commissioner, or deposit
with him a good and sufficient bond, secured by a
deed of trust on real estate situated in North Car-
olina and approved by him, or by depositing with
the insurance commissioner a bond in an amount
not less than five thousand dollars ($5,000.00), is-
sued by any corporate surety company author-
ized to do business in this state: Provided, any
burial association organized by the colored race
shall execute a bond or deposit securities as above
stated in the amount of not less than five thou-
sand dollars ($5,000.00)." The insurance com-
missioner is moreover authorized and empowered
to accept in lieu of deposits a bond, or bonds, or
cash, a deed of trust, either executed by the
proper officers of the association or lawfully exe-
cuted to such association, for such amount as is
required hereinbefore. The insurance commis-
sioner shall accept such conveyance if the value
of the property included therein is sufficient, and
it shall be sufficient if the penalty of the bond
amounts to not more than sixty per cent of the
value of said property. Be it further provided,
that if such association- operates a branch for
members of the colored race, and the officers of
both associations are the same, then the require-
ments of this section shall apply as of one asso-
ciation. (1937, c. 239, s. 11.)
§ 6476(mm). State- wide organization of asso-
ciations.— It shall be lawful for the several mutual
burial associations of the state of North Carolina,
in good standing, to organize and provide for a
state-wide organization of mutual burial associa-
tions, which organization shall be for the mutual
and general suggestive control of mutual burial
associations in the state of North Carolina. Such
organizations shall have such name as agreed up-
on by the membership in meetings, and to be
composed of members as are lawfully operating
in the state and who pay their dues to such as-
sociation. (1937, c. 239, s. 12.)
§ 6476(nn). Law constitutes exclusive author-
ity.— This law shall be deemed and held exclusive
authority for the organization and -operation of
mutual burial associations within the state of
North Carolina, and shall not be subject to any
other laws respecting insurance companies of any
class. (1937, c. 239, s. 13.)
§ 6476(oo). Charter required. — No burial as-
sociation shall operate in the state of North Caro-
lina unless receiving a charter from the secretary
of state, recommended by the insurance commis-
sioner and approved by him. (1937, c. 239, s. 14.)
SUBCHAPTER VI. FRATERNAL ORDERS
AND SOCIETIES
Art. 25. Fraternal Orders
§ 6493(a). Appointment of member as receiver
or collector; appointee as agent for order or so-
ciety; rights of members.
Where plaintiff's evidence showed that it had been the
custom of defendant mutual benefit association's collecting
agents, to collect dues after the due date but within thirty
days thereof, that defendant's home office knew of this cus-
tom, and that insured made payment of the dues for the
preceding month within thirty days of the due date and
died prior to the customary time for the collection of dues
for the following month, it was held that the evidence was
sufficient to be submitted to the jury on the question of de-
fendant's waiver of the provisions of its certificate and by-
laws, requiring certificate of good health before reinstating
a policy upon payment of premium after the due date, and
upon the verdict of the jury plaintiff was entitled to judg-
ment for the amount of the policy, less the dues for the
month not paid. Shackelford v. Sovereign Camp, W. O. W.,
209 N. C. 633, 184 S. E. 691.
§ 6503. Waiver of the provisions of the laws.
See Shackelford v. Sovereign Camp, W. O. W., 209 N. C.
633, 184 S. E- 691, where a distinction is made between waiver
by local agents, prohibited by this section, and a custom of
dealing established over a period of years to the knowl-
edge of the home office. — Ed. note.
§ 6508. Beneficiaries. —
Provided, however, that any member or insured
named in any contract or certificate of insurance
issued by any beneficial fraternal order, lodge,
society, or other insurance association, who has
neither lawful spouse nor offspring, shall have the
right, without regard to the amount payable
thereunder, to have the death benefit provided for
in any such contract or certificate of insurance
made payable, or to have the named beneficiary
changed, to the estate of such member or insured,
or to his or her executors or administrators, and
to make a testamentary disposition of the pro-
ceeds thereof, or to have such death benefit made
payable, or to have the named beneficiary changed,
to a trustee to be named by such member or in-
sured, and to impress the proceeds in the hands
of such trustee with a trust, the terms and pro-
visions of the charter, rules, by-laws and regula-
tions of any such beneficial fraternal order, lodge,
society, or other insurance association, to the con-
trary notwithstanding: Provided further, that in
case a husband or wife is designated as benefi-
ciary and subsequently comes absolutely divorced
from the member or insured, such divorce shall
automatically annul the designation. (1913, c. 89,
s. 5; 1931, c. 161; 1937, c. 178.)
Editor's Note.— The 1937 amendment directed that the
above provisos be added at the end of this section. The rest
of the section, not being affected by the amendment, is not
set out here.
This section has heretofore confined the beneficiaries of
fraternal insurance policies, with minor exceptions, to rela-
tives and dependents of the insured. As amended, this section
now permits the insured to name in addition, as bene-
ficiaries, his estate, or a trustee, anything in the constitu-
tion or by-laws of the association to the contrary notwith-
standing. A third provision adds that after absolute di-
vorce a wife named as beneficiary loses her rights as such.
The effect of the first and third of these provisions is clear.
In permitting the insured to designate his estate as ben-
eficiary, the amendment brings fraternal insurance more
closely in line with old line insurance. It perhaps renders
the proceeds of such a policy available to creditors of a
deceased insured and permits wider use of fraternal insur-
ance for investment purposes. In rare instances it will al-
low a member of an order, who has no near relatives or
dependents, to take out such insurance where he hereto-
fore has been prevented from so doing. In destroying the
rights of a divoiced wife as beneficiary, this section does
for an insured what he might unintentionally have neg-
lected to do. The provision permitting the naming of a
trustee as beneficiary seems designed to counteract the ef-
fects of the recent case of Equitable Trust Co. v. Widows'
Fund of Oasis and Omar Temples, 207 N. C. 534, 177 S.
E- 799, holding invalid an attempt to name as beneficiary
a corporate trustee. As amended, however, the section is
ambiguous. It does not make clear whether the trustee
may be a corporation, or whether he must be a natural per-
son. And it leaves unclear whether the beneficiaries of the
trust must be relatives or dependents of the insured. If
not, the amendment gives the insured carte blanche, by
the device of a trust, to name any beneficiary he desires.
[201]
§ 6530
LABOR REGULATIONS
§ 6564(3)
Such is not in keeping with the usual purpose of fraternal
benefit insurance. 15 N. C. L,aw Rev., No. 4, pp. 357-358.
Payment of Dues Alone Is Not Sufficient to Create Lien
against Certificate or Vest Interest in It. — Where insured's
wife was named beneficiary, and after her death insured's
brother, who became the beneficiary under the terms of
the certificate as insured's nearest blood relation, kept the
certificate in force until the death of the insured a short time
thereafter, it was held that under the terms of the certifi-
cate the insured's brother was entitled to the proceeds there-
of, to the exclusion of the wife's nephew who claimed un-
der the will of the wife, the payment of dues or premiums
alone being insufficient to create a lien against the cer-
tificate, or the proceeds thereof, and the wife at no time
having any vested interest as the named beneficiary which
she could bequeath by will. Sorrell v. Sovereign Camp, W.
O. W., 209 N. C. 226, 183 S. £. 400.
Art. 27. Whole Family Protection
§ 6530. Insurance on children, —
Provided, any fraternal benefit society which
shall accumulate and maintain the reserves re-
quired by a table of mortality not lower than the
American Experience Table of Mortality, with an
interest assumption of not more than four per
cent, may accept members at such ages, and chil-
dren under sixteen years of age, in such manner
and upon such showing of eligibility, and issue to
its members, and children under sixteen years of
age, such forms of certificates, payable to such
beneficiaries, and for such amounts, as its consti-
tution and laws may provide. Children under six-
teen years of age shall have no voice or vote.
(1917, c. 239, s. 1; 1931, c. 38; 1937, c. 208.)
Editor's Note.— The 1937 amendment directed that the
above proviso be added at the end of this section. The rest
of the section, not being affected by the amendment, is not
set out here.
CHAPTER 108
LABOR REGULATIONS
Art. l. Various Regulations
§ 6558. Railroad employees to be paid twice a
month.
This section seems to be the only North Carolina enact-
ment of its kind. 115 N. C. I^aw Rev., No. 3, p. 266.
§ 6558(a). Acceptance by employer of assign-
ment of wages; counties excepted. — No employer
of labor shall be responsible for any assignment
of wages to be earned in the future, executed by
an employee, unless and until such assignment of
wages is accepted by the employer in a written
agreement to pay same. (1935, c. 410; 1937, c.
90.)
Editor's Note.— The 1937 amendment struck out the former
proviso exempting Rowan, Iredell, Rockingham and Cabar-
rus counties from the provisions of this section.
Art. 2 A. Maximum Working Hours
§ 6564(1). Title of article.— This article shall
be known and may be cited as the "Maximum
Hour Law." (1937, c. 409, s. 1.)
§ 6564(2). Declaration of public policy; enact-
ment under police power. — As a guide to inter-
pretation and application of this article, the pub-
lic policy of this state is declared as follows: The
relationship of hours of labor to the health, mor-
als and general welfare of the people is a subject
of general concern which requires appropriate
legislation to limit hours of labor to promote the
general welfare of the people of the state without
jeopardizing the competitive position of North
Carolina business and industry.
The general assembly, therefore, declares that
in its considered judgment the general welfare of
the state requires enactment of this law under the
police power of the state. (1937, c. 409, s. 2.)
§ 6564(3). Limitations of hours of employ-
ment; exceptions. — .No employer shall employ a
female person for more than forty-eight hours in
any one week or nine hours in any one day, or on
more than six days in any period of seven con-
secutive days.
No employer shall employ a male person for
more than fifty-five hours in any one week, or
more than twelve days in any period of fourteen
consecutive days or more than ten hours in any
one day, except that in case where two or more
shifts of eight hours each or less per day are em-
ployed, any shift employee may be employed not
to exceed double his regular shift hours in any
one day whenever a fellow employee in like work is
prevented from working because of illness or other
cause: Provided, in case of emergencies, repair
crews, engineers, electricians, firemen, watchmen,
office and supervisory employees and employees
engaged in hereinafter defined continuous process
operations and in work, the nature of which pre-
vents second shift operations, may be employed
for not more than sixty hours in any one week:
Provided, also, that the ten hours per day maxi-
mum shall not apply to any employee when his
employment is required for a longer period on ac-
count of an emergency due to breakdown, instal-
lation or alteration of equipment: Provided, that
Iboys over fourteen years of age delivering news-
papers on fixed routes and working not more than
twenty-four hours per week, and watchmen may
be employed seven days per week: Provided fur-
ther, that from the eighteenth of December to
and including the following twenty-fourth of De-
cember and for two periods of one week's dura-
tion each during the year for purpose of taking
inventory, female persons over sixteen years of
age in mercantile establishments may be em-
ployed not to exceed ten hours in any one day:
Provided further, that female persons engaged in
the operation of seasonal industries in the process
of conditioning and preserving perishables or
semi-perishable commodities may be employed
for not more than ten hours in any one day and
not more than fifty-five hours in any one week.
Telegraph operators and clerks at offices em-
ploying three or less persons may be employed
seven days per week.
No provision in this article shall be deemed to
authorize the employment of any minor in viola-
tion of the provisions of any law expressly regu-
lating the hours of labor of minors or of any reg-
ulations made in pursuance of such laws.
Where the day is divided into two or more
work periods for the same employee, the em-
ployer shall provide that all such periods shall be
within twelve consecutive hours, except employ-
ees of motion picture theatres, restaurants, din-
ing-rooms, and public eating places, such periods
shall be within fourteen consecutive hours:
Provided, that the transportation of employees
to and from work shall not constitute any part of
the employees' work hours.
Nothing in this section or any other provisions
of this article shall apply to the employment of
persons in agricultural occupations, ice plants,
[202]
§ 6564(4)
LABOR REGULATIONS
§ 6564(10)
cotton gins and cottonseed oil mills or in domestic
service in private homes and boarding houses, or
to the work of persons over eighteen years of age
in bona fide office, foremanship, clerical or super-
visory capacity, executive positions, learned pro-
fessions, commercial travelers, motion picture
theatres, seasonal hotels and club houses, com-
mercial fishing or tobacco redrying plants, to-
bacco warehouses, employers employing a total of
not more than eight persons in each place of busi-
ness, charitable institutions and hospitals: Pro-
vided further, that nothing in this section or in
any other provision of this article shall apply to
railroads, common carriers and public utilities
subject to the jurisdiction of the interstate com-
merce commission or the North Carolina utilities
commission, and utilities operated by municipali-
ties or any transportation agencies now regulated
by the federal government: Provided, nothing in
this article shall apply to the state or to munici-
pal corporations or their employees, or to employ-
ees in hotels.
When, by reason of a seasonal rush of business,
any employer finds or believes it to be necessary
that the employees of his or its manufacturing
plant shall work for more than fifty-five hours
per week, the employer may apply to the commis-
sioner of labor of the state of North Carolina for
permission to allow the employees of such estab-
lishment to work a greater number of hours than
fifty-five for a definite length of time not exceed-
ing sixty days; and the commissioner, after in-
vestigation, may, in his discretion, issue such per-
mit on the condition that all such employees shall
receive one and one-half times the usual compen-
sation for all hours worked over fifty-five per
week: Provided, this shall not apply to the hours
of any female person or any person under the
age of eighteen years: Provided further, employ-
ees in all laundries and dry cleaning establish-
ments shall not be employed more than fifty-five
hours in any one week: Provided further, nothing
contained in this article shall be construed to
limit the hours of employment of any outside
salesmen on commission basis. Provided, that
this article shall not apply to male clerks in mer-
cantile establishments. (1937, cc. 406, 409, s. 3.)
§ 6564(4). Definitions. — Whenever used in this
article.
(a) "Employ" includes permit or suffer to work.
(b) "Employer" includes every person, firm,
corporation, partnership, stock association, agent,
manager, representative or foremen, or other per-
son having control or custody of any employ-
ment, place of employment or of any employee.
(c) "Day" includes any period of twenty-four
consecutive hours.
(d) "Continuous process operations" includes
bleaching, dyeing, finishing, redrying, dry kiln op-
erations, and any other processing requiring con-
tinuous handling or work for completion. (1937,
c. 409, s. 4.)
§ 6564(5). Positing of law. — Every employer
shall post and keep conspicuously posted in or
about the premises wherein any employee is em-
ployed, a printed abstract of this article to be fur-
nished by the state commissioner of labor upon
request. (1937, c. 409, s. 5.)
T 203
§ 6564(6). Time records kept by employers. —
Every employer shall keep a time book and/or
record which shall state the name and occupation
of each employee employed and which shall in-
dicate the number of hours worked by him or her
on each day of the week, and the amount of
wages paid each pay period to each such em-
ployee. Such time book and/or record shall be
kept on file at least one year after the entry of
the record. The state commissioner of labor or
his duly authorized representative shall, for the
purpose of examination, have access to and the
right to copy from such time book and/or record
for the purpose of prosecuting violations of the
provisions of the article. Any employer who fails
to keep such time book and/or record, or know-
ingly and intentionally makes any false statement
therein, or refuses to make such time book and/
or record accessible, upon request, to the state
commissioner of labor or his duly authorized rep-
resentative shall be deemed to have violated this
section. (1937, c. 409, s. 6.)
§ 6564(7). Enforcement by commissioner of
labor. — It shall be the duty of the state commis-
sioner of labor to enforce all the provisions of
this article. The state commissioner of labor and
his authorized representatives shall have the
power and authority to enter any place of em-
ployment, and, in the enforcement of this article,
the state commissioner of labor and his author-
ized representatives may enter and inspect as
often as practicable all such places of employ-
ment. They may investigate all complaints of
violations of this article received by them, and
may institute prosecutions as hereinafter provided
for violations of this article. (1937, c. 409, s. 7.)
§ 6564(8). Interference with enforcement pro-
hibited.— No person shall hinder or delay the
state commissioner of labor or any of his author-
ized representatives in the performance of his du-
ties; nor shall any person refuse to (admit), or
lock out from, any place of employment the state
commissioner of labor or any of his authorized
iepresentatives, or refuse to give the state com-
missioner of labor or his authorized representa-
tives information required for the proper enforce-
ment of this article. (1937, c. 409, s. 8.)
§ 6564(9). Violation a misdemeanor — Any per-
son who, whether on his own behalf or for an-
other, or through an agent, manager, representa-
tive, foreman or other person, shall knowingly
and intentionally violate any provisions of this ar-
ticle, shall be guilty of a misdemeanor. (1937, c.
409, s. 9.)
§ 6564(10). Penalties, — Whoever knowingly
and intentionally violates any provisions of sec-
tion 6564(3), upon complaint lodged by the state
commissioner of labor, shall be punished by a fine
of not less than ten ($10.00) dollars nor more than
fifty ($50.00) dollars, or by imprisonment for not
more than thirty days at the discretion of the
court; and whenever any person shall have been
notified by the state commissioner of labor or his
authorized representative, or by the service of a
summons in a prosecution, that he is violating
such provision, he shall be subject to like penal-
ties in addition for each and every day that such
violation shall have been continued after such no-
tification.
§ 6564(11)
MEDICINE AND ALLIED OCCUPATIONS
§ 6659(b)
Whoever knowingly and intentionally violates
any of the provisions of sections 6564(5), 6564(6),
6564(8), or 6564(9) of this article shall be pun-
ished, for the first offense, by a fine of not less
than five ($5.00) dollars nor more than twenty-
five ($25.00) dollars, or imprisonment for not
more than thirty days, at the discretion of the
court, and whenever any person shall have been
notified by the state commissioner of labor or his
authorized representative that he is violating such
provisions, and shall have been given a reasonable
time in which to remedy the conditions which
shall constitute such violations, he shall be sub-
ject to like penalties in addition to the penalties
aforesaid, for each and every day that such vio-
lation shall have continued after the expiration of
the time allowed by the state commissioner of
labor or his authorized representative for remedy-
ing the aforesaid conditions. (1937, c. 409, s. 10.)
§ 6564(11). Intimidating witnesses. — Whoever
shall, by force, intimidation, threat of procuring
dismissal from employment, or by any other man-
ner whatsoever, induce or attempt to induce an
employee to refrain from giving testimony in any
investigation or proceeding relating to or arising
under this article, or whoever discharges or pen-
alizes any employee for so testifying, shall be
subject to a fine of not less than ten ($10.00) dol-
lars nor more than fifty ($50.00) dollars, or by
imprisonment for not more than thirty days.
(1937, c. 409, s. 11.)
CHAPTER 100
LIBRARIES
Art. 4. Library Commission
§ 6604(a). Commission authorized to accept
and administer funds from federal government
and other agencies. — The North Carolina library
commission is hereby authorized and empowered
to receive, accept and administer any money or
moneys appropriated or granted to it, separate
and apart from the general library commission
fund, for providing and equalizing public library
service in North Carolina:
(1) By federal government, and
(2) By any other agencies, private and/or oth-
erwise.
The fund herein provided for shall be adminis-
tered by the governing board of the library com-
mission of North Carolina, under authority of
sections six thousand five hundred ninety-seven,
six thousand six hundred four, Consolidated Stat-
utes of North Carolina, which body shall frame
by-laws, rules and regulations for the allocation
and administration of this fund.
This fund shall be used to increase, improve,
stimulate and equalize library service to the peo-
ple of the whole state, and shall be used for no
other purpose whatsoever except as hereinafter
provided, and shall be allocated among the coun-
ties of the state, taking into consideration local
needs, area and population to be served, local in-
terest as evidenced by local appropriations, and
such other factors as may affect the state program
of library service.
Any gift or grant from the federal government
or other sources shall become a part of said fund,
to be used as part of the state fund, or may be in-
vested in such securities in which the state sink-
ing fund may be invested as in the discretion of
the governing board of the library commission of
North Carolina may be deemed advisable, the in-
come to be used for the promotion of libraries as
aforesaid. (1937, c. 206.)
CHAPTER 110
MEDICINE AND ALLIED OCCUPATIONS
Art. 2. Dentistry
§ 6649(17). Licensing former dentists who
have moved back into state or resumed practice.
This section is constitutional and valid as an exercise ot
the police power of the state for the good and welfare of the
people. Allen v. Carr, 210 N. C. 513, 187 S. E. 809.
And its provisions bear alike upon all classes of persons
referred to. Hence the requirement made by the board that
the plaintiff make to it a satisfactory showing of his pro-
ficiency in the profession of dentistry is no discrimination
against the plaintiff. Allen v. Carr, 210 N. C. 513, 519, 187
S. 3. 809.
Mandamus wall not lie to control the decision of the board
in the exercise of its discretionary power under this section,
the extent of mandamus in such cases being limited to com-
pel the exercise of the discretionary power, but not to con-
trol the decision reached in its exercise. Allen v. Carr, 210
N. C. 513, 187 S. E. 809.
Licensed Dentist Removing from State Must Take Sec-
ond Examination upon Return. — A dentist licensed by the
State Board of Dental Examiners, who thereafter moves
from this state and practices his profession successively in
other states, upon examination and license by them, and
then returns to this state, must obtain a license to resume
practice here by passing a second examination by the State
Board of Dental Examiners, although such dentist has con-
tinuously practiced dentistry since he was first licensed by
the State Board. Allen v. Carr, 210 N. C. 513, 187 S. 3. 809.
Art. 3. Pharmacy
Part 1. Practice of Pharmacy
§ 6658. Application and examination for license,
prerequisites. —
Provided, that any person legally registered or
licensed as a pharmacist by another state board
of pharmacy, and who has had fifteen years con-
tinuous experience in North Carolina under the
instruction of a licensed pharmacist next preced-
ing his application shall be permitted to stand the
examination to practice pharmacy in North Caro-
lina upon application filed with said board. Any
person who has had two years of college training
and has been filling prescriptions in a drug store
or stores for twenty years or longer may take the
examination as provided in the above proviso.
(Rev., ss. 4479, 4480; 1905, c. 108, s. 13; 1915, c.
165; 1921, c. 52; 1933, c. 206, ss. 1, 2; 1935, c. 181;
1937, c. 94.)
Editor's Note.— The 1937 amendment abolished the time
restriction formerly appearing in the last proviso of this
section. The prior part of the section, not being affected
by the amendment, is not set out here.
§ 6659(b). Certain assistant pharmacists may
take registered pharmacist's examination; no orig-
inal assistants' certificates issued after January 1,
1939. — Every person who is the holder of a cer-
tificate as a registered assistant pharmacist, is-
sued prior to January first, one thousand nine
hundred and thirty-nine, shall be admitted to the
registered pharmacist examination. After January
first, one thousand nine hundred and thirty-nine,
the board shall not issue an original certificate to
any person as a registered assistant pharmacist:
Provided, however, that nothing in this section
[ 204
§ 6670(b)
MEDICINE AND ALLIED OCCUPATIONS
§ 6708(a)
shall prevent any person who was registered as
an assistant pharmacist prior to January first, one
thousand nine hundred and thirty-nine, from con-
tinuing to practice as a registered assistant phar-
macist. (1937, c. 402.)
§ 6670(b). Substitution of drugs, etc., pro-
hibited. — ■ Any person or corporation engaged in
the business of selling drugs, medicines, chemi-
cals, or preparations for medical use or of com-
pounding or dispensing physicians' prescriptions,
who shall, in person or by his or its agents or em-
ployees, or as agent or employee of some other
person, knowingly sell or deliver to any person a
drug, medicine, chemical preparation for medic-
inal use, recognized or authorized by the latest
edition of the United States Pharmacopoeia and
National Formulary, or prepared according to the
private formula of some individual or firm, other
or different from the drug, medicine, chemical or
preparation for medicinal use, recognized or au-
thorized by the latest edition of the United States
Pharmacopoeia and National Formulary, or pre-
pared according to the private formula of some
individual or firm, ordered or called for by such
person, or called for in a physician's prescription,
shall be guilty of a misdemeanor, and upon con-
viction shall be punished by a fine or imprison-
ment, or both, at the discretion of the court: Pro-
vided, that this section shall apply to registered
drug stores and their employees only. (1937, c.
59.)
Art. 3A. Narcotic Drug Act
Part 2. Dealing in Specific Drugs Regulated
§ 6686(1). Definitions.
For an analysis of this article, see 13 N. C. Law Rev.,
No. 4, p. 403.
Applied in State v. Williams, 210 N. C. 159, 185 S. E). 661.
§ 6686(a). Manufacture, sale, etc., of narcotic
drugs regulated.
Where the defendant was indicted under this section, the
indictment following the words of the section and charging
defendant in one count with the commission of the several
acts forbidden, the several offenses being charged by the
use of the disjunctive "or," it was held that it was impos-
sible to ascertain from the indictment which of the several
separate offenses defendant was charged with committing,
the indictment failing to charge the commission of each of
them, since the disjunctive "or" is used, and defendant's
motion to quash the indictment for uncertainty should have
been allowed. State v. Williams, 210 N. C. 159, 185 S.
E. 661.
Art. 4. Optometry
§ 6696. Annual fees; failure to pay; revocation
of license; collection by suit. — .For the use of the
board in performing its duties under this article,
every registered optometrist shall, in every year
after the year one thousand nine hundred and
thirty-seven pay to the board of examiners the
sum of not exceeding fifteen ($15.00) dollars, the
amount to be fixed by the board, as a license fee
for the year.
(1937, c. 362, s. 1.)
Editor's Note.— The 1937 amendment changed the date
from 1932 to 1937 and increased the annual license fee from
five to fifteen dollars. As only the first sentence was af-
fected by the amendment the rest of the section is not set
out here.
§ 6697(a). Practicing under other than own
name or as a salaried or commissioned employee.
— It shall be unlawful for any person licensed to
practice optometry under the provisions of this
article to advertise, practice, or attempt to prac-
tice under a name other than his own, except as
an associate of or assistant to an optometrist li-
censed under the laws of the state of North Caro-
lina; and it shall be likewise unlawful for any cor-
poration, lay body, organization, group, or lay in-
dividual to engage, or undertake to engage, in the
practice of optometry through means of engaging
the services, upon a salary or commission basis,
of one licensed to practice optometry or medicine
in any of its branches in this state. Likewise, it
shall be unlawful for any optometrist licensed un-
der the provisions of this article to undertake to>
engage in the practice of optometry as a salaried
or commissioned employee of any corporation, lay
body, organization group, or lay individual. (1935,
c. 63; 1937, c. 362, s. 2.)
Editor's Note. — The 1937 amendment inserted the words
"or medicine in any of its branches" near the end of the
first sentence.
Where Suit to Enjoin Enforcement of Section Not Allowed
by Federal Court. — Defendants had been enjoined by a
state court for an alleged violation of this section. In a
suit brought in the district court to enjoin the enforcement
of this section, as violating the commerce clause and due
process and equal protection clauses of the constitution, it
was held that this was a suit to enjoin the decree of a state
court and was prohibited by a federal statute. Ritholz v.
North Carolina State Board of Examiners, 18 F. Supp. 409.
§ 6699. Application of article. — Nothing in this
article shall be construed to apply to physicians
and surgeons authorized to practice under the
laws of North Carolina, except the provisions
contained in section 6697(a), or prohibit persons
to sell spectacles, eyeglasses, or lenses as mer-
chandise from permanently located or established
places of business. (1909, c. 414, s. 15; 1937, c.
362, s. 3.)
Editor's Note.— The 1937 amendment inserted the reference
to § 6697(a).
Art. 5. Osteopathy
§ 6701. Board of examiners; membership; offi-
cers; meetings. —
The board shall keep a record of its proceed-
ings, and a register of all applicants for certifi-
cates, giving the name and location of the institu-
tion granting the applicant the degree of doctor
of or diploma in osteopathy; the date of his or
her diploma, and also whether the applicant was
rejected or a certificate granted. The record and
registers shall be prima facie evidence of all mat-
ters recorded therein. (1907, c. 764, s. 1; 1913, c.
92, s. 1; 1937, c. 301, s. 1.)
Editor's Note. — The 1937 amendment struck out the words
"or other nondrug- giving school of medical practice"
formerly appearing after the word "osteopathy" in the
next to the last sentence. The prior part of the section,
not being affected by the amendment, is not set out here.
§ 6704: Repealed by Public Laws 1937, c. 301,
s. 2.
§ 6708: Repealed by Public Laws 1937, c 301,
s. 3, codified as §§ 6708(a)-6708(b).
§ 6708(a). Revocation or suspension of license.
— The North Carolina state board of osteopathic
examination and registration may refuse to issue
a license to any one otherwise qualified, and may
suspend or revoke any license issued by it to any
osteopathic physician who is not of good moral
character, and/or for any one or any combination
of the following causes:
1. Conviction of a felony, as shown by a cer-
[205
§ 6708(b)
MEDICINE AND ALLIED OCCUPATIONS
§ 6786
tified copy of the record of the court of convic-
tion;
2. The obtaining of or an attempt to obtain a
license, or practice in the profession, or money,
or any other thing of value, by fraudulent misrep-
resentations;
3. Gross malpractice;
4. Advertising by means of knowingly false or
deceptive statements;
5. Advertising, practicing, or attempting to
practice under a name other than one's own;
6. Habitual drunkenness or habitual addiction
to the use of morphine, cocaine, or other habit-
forming drugs.
Each of the following acts constitutes a misde-
meanor, punishable upon conviction by a fine of
not less than twenty-five ($25.00) dollars nor
more than two hundred ($200.00) dollars; or im-
prisonment for not less than thirty days nor more
than one year, or both in the discretion of the
court:
1. The practice of osteopathy or an attempt to
practice osteopathy, or professing to do so with-
out a license;
2. The obtaining of or an attempt to obtain a
license, or practice in the profession, or money,
or any other thing of value by fraudulent misrep-
resentation;
3. The making of any wilfully false oath or af-
firmation whenever an oath or affirmation is re-
quired by this article;
4. Advertising, practicing or attempting to prac-
tice osteopathy under a name other than one's
own.
The state board may neither suspend nor re-
voke any license, however, for any of the causes
hereinabove set forth unless the person accused
has been given at least twenty days notice in
writing of the charge against him and a public
hearing had by said board, or a quorum thereof.
At the time and place named in said notice the
said board, or a quorum thereof, shall proceed to
hear the charges against the accused upon com-
petent evidence, oral or by deposition, and at said
hearing said accused shall have the right to be
present in person and/or represented by counsel.
After hearing all the evidence, including such evi-
dence as the accused may present, the board shall
determine its action and announce the same.
From any action of the board depriving the ac-
cused of his license, or certificate of renewal of
license, the accused shall have the right of appeal
to the superior court of the county wherein the
hearing was held, upon filing notice of appeal
within ten days of the decision of the board. The
record of the hearing before the North Carolina
state board of osteopathic examination and regis-
tration shall constitute the record upon appeal in
the superior court. (1937, c. 301, s. 3.)
§ 6708(b). Restoration of revoked license. —
Whenever any osteopath has been deprived of his
license, the North Carolina state board of osteo-
pathic examination and registration, in its discre-
tion, may restore said license upon due notice be-
ing given and hearing had, and satisfactory evi-
dence produced of proper reformation of the li-
centiate before restoration. (1937, c. 301, s. 3.)
Art. 6. Chiropractic
§ 6715. Definitions of chiropractic; examina-
tions; educational requirements. —
Provided further, that the said state board of
chiropractic examiners may license by reciprocity,
upon application, any chiropractor holding a li-
cense issued to him by a regular board of chiro-
practic examiners in another state when said
board is satisfied that such applicant has educa-
tional qualifications, or the equivalent thereof,
equal to those prescribed by said board for ad-
mission to practice chiropractic in this state, and
upon proof of good moral character and that he
has practiced chiropractic under such license for
at least one year. (1917, c. 73, s. 5; 1919, c. 148,
ss. 1, 2, 5; 1933, c. 442, s. 1; 1937, c. 293.)
Editor's Note. — The 1937 amendment struck out the last
sentence in this section and inserted the above provision in
lieu thereof. As the rest of the section was not affected by
the amendment it is not set out here.
§ 6726. Annual fee for renewal of license. — All
persons practicing chiropractic in this state shall,
on or before the first Tuesday after the first Mon-
day in January in each year after licenses issued to
them as herein provided, pay to the secretary of
the board of chiropractic examiners a renewal li-
cense fee of ten ($10.00) dollars, the payment of
which, and a receipt from the secretary of the
board, shall work a renewal of the license fee for
twelve months.
Any license or certificate granted by the board
under this article shall automatically be cancelled
if the holder thereof fails to secure a renewal
within three months from the time herein pro-
vided; but any license thus cancelled may, upon
evidence of good moral character and proper
proficiency, be restored upon the payment of
fifteen ($15.00) dollars. (1917, c. 73, s. 15; 1933,
c. 442, s. 4; 1937, c. 293, s. 2.)
Editor's Note. — Prior to the 1937 amendment the fee speci-
fied in the first paragraph was two dollars and the fee in
the second paragraph was ten dollars.
Art. 13. Cadavers for Medical Schools
§ 6786. What bodies to be furnished; disposi-
tion of bodies of prisoners dying while in Central
Prison or road camps in Wake county. —
Provided further, that the bodies of all such
white prisoners dying while in Central Prison or
road camps of Wake county, whether death re-
sults from natural causes or otherwise, shall be
equally distributed among the white funeral homes
in Raleigh, and the bodies of all such negro pris-
oners dying under similar conditions shall be
equally distributed among the negro funeral homes
in Raleigh; but only such funeral homes can
qualify hereunder as at all times maintain a regular
licensed embalmer; and provided further, that
nothing herein shall require the delivery of bodies
of such prisoners to funeral directors of Wake
county where the same are claimed by relatives
or friends. (Rev., s. 4288; 1903, c. 666, s. 2; 1911,
c. 188; 1923, c. 110; 1937, c. 351.)
Editor's Note.— The 1937 amendment directed that the
above provisos be added at the end of this section. The rest
of the section, not being affected by the amendment, is not
set out here.
[206
§ 6863(a)
PUBLIC BUILDINGS AND GROUNDS
§ 7025
CHAPTER 111
MILITIA
Art. 6. Unorganized Militia
§ 6863(a). Promotion of marksmanship. — The
adjutant general is authorized to detail a com-
missioned officer of the North Carolina national
guard or member of the unorganized militia to
promote rifle marksmanship among the unor-
ganized militia of the state. Such officer or mem-
ber of the unorganized militia so detailed shall
.serve without pay and it shall be his duty to
organize and supervise rifle clubs in schools,
colleges, universities, clubs and other groups, un-
der such rules and regulations as the adjutant
general shall prescribe and in such manner to
make them, when duly organized, acceptable for
membership in the national Rifle Association.
Provided, that such duties and efforts shall in no
wise interfere or conflict with clubs of schools or
in no wise interfere or conflict with clubs of
schools or units operating in R. O. T. C. or simi-
lar schools under the supervision of army instruc-
tors.
The adjutant general may reimburse the officer,
or member of the unorganized militia, so detailed
to promote rifle marksmanship, as aforesaid, for
such expenses actually incurred, not to exceed
the sum of two hundred dollars ($200.00) for each
year of the biennium, and for this purpose there
is hereby appropriated from the general fund the
sum of two hundred dollars ($200.00) annually, to
be paid by warrants drawn on the treasurer of
North Carolina by the adjutant general. (1937,
c. 449.)
Art. 8. Privilege of Organized Militia
§ 6869. Leaves of absence for state officers
and employees. — All officers and employees of the
state who shall be members of the national guard,
naval militia, officers reserve corps, enlisted re-
serve corps, or the naval reserves shall be entitled
to leave of absence from their respective duties,
without loss of pay, time, or efficiency rating, on
all days during which they shall be engaged in
field or coast-defense training ordered or au-
thorized under the provisions of this chapter or
as may be directed by the president of the United
States. (1917, c. 200, s. 88; 1937, c. 224, s. 1.)
Editor's Note. — The 1937 amendment made this section ap-
plicable to the officers reserve corps, the enlisted reserve
corps and the naval reserves.
§ 6870. Exemption from road and jury duty. —
All members of the national guard, naval militia,
officers reserve corps, enlisted reserve corps, and
the naval reserves, who comply with and perform
all duties required of them as members of the
national guard, naval militia, officers reserve corps,
enlisted reserve corps, and the naval reserves, are
hereby exempted from duty upon the public roads
of the counties in which they reside, and shall
also be exempt from service as jurors. On the
first day of January and July of each year, be-
ginning with the first day of July, one thousand
nine hundred and seventeen, the commanding
officer of each company, troop, battery, detach-
ment, or division of the national guard, naval
militia, officers reserve corps, enlisted reserve
corps, and the naval reserves, of North Carolina,
residing in the above mentioned counties, shall
file with the clerk of the superior court of the
county in which such company, troop, battery,
detachment, or division is located a statement giv-
ing the name and rank of each member of his
organization who has performed all military du-
ties during the preceding six months; and any
member of such military organization whose name
does not appear upon such statement shall not
receive the benefit of the exemption provided for
herein during the six months immediately follow-
ing the filing of the statement. (1913, c. 103;
1915, c. 217; 1917, c. 200, s. 89; 1937, c. 224, s. 2.)
Editor's Note.— The 1937 amendment made this section ap-
plicable to the officers reserve corps, the enlisted reserve
corps and the naval reserves.
CHAPTER 112
MINES
Art. 3. Waterways Obtained
§ 6926. Disposition of waste. — In getting out
and washing the products of kaolin and mica
mines, the persons engaged in such business shall
have the right to allow the waste, water, and
sediment to run off into the natural courses and
streams. (1917, c. 123; 1937, c. 378.)
Editor's Note.— The 1937 amendment, which made this sec-
tion applicable to mica mines, provides: "This act shall not
affect pending litigation."
Art. 4. Adjustment of Conflicting Claims
§ 6927. Liability for damage for trespass.
Cited in Carolina Mineral Co. v. Young, 211 N. C. 387, 190
S. F- 520.
CHAPTER 115A
PHOTOGRAPHERS
§ 7007(1). Definitions.
To solicit persons to have their photographs taken, ar-
range for the sitting, and actually have the camera present
and take what is popularly called a picture, but in fact is
a "negative," which is the outline of the subject on glass,
is engaging within the state in the profession or business
of photography within the meaning of this section. L,ucas
v. Charlotte, 14 F. S'upp. 163, 167.
§ 7007(19). Annual license fees for business
establishments and employees.
It was contended that the taxes under this section and §
7880(38) were a burden upon and an interference with inter-
state commerce and therefore void. The court held that the
fact that the negatives of photographs, after the taking,
were sent to another state to be finished, does not make the
transaction one of interstate commerce. L,ucas v. Char-
lotte, 86 F. (2d) 394, 396.
CHAPTER 117
PUBLIC BUILDINGS AND GROUNDS
Art. 1. Officers in Charge
§ 7025. Board of public buildings; keeper of
capitol. — The governor and secretary of state, the
treasurer and attorney-general and the assistant
director of the budget shall constitute the board
of public buildings and grounds, and they shall
appoint a keeper of the capitol, public grounds
and arsenal, and he shall hold his office until his
successor is appointed and files his bond in ac-
[207
§ 7039(b)
PUBLIC HEALTH
§ 7251(t)
cordance with the requirements of the board and
the law relating to bonds.
(1937, c. 304, s. 1.)
Editor's ?Jote — The 1937 amendment inserted the words
"and the assistant director of the budget" in the first sen-
tence. The rest of the section, not being affected by the
amendment, is not set out here.
Art. 2. Public Buildings
§ 7039(b). Use of other buildings. — Except as
herein otherwise provided all space in other state
buildings in Raleigh, now existing or hereafter
erected, including the capitol, the administration
and state departments building, the agricultural
building and the automobile building, as well as
the buildings on the lot formerly occupied by the
school for the blind lying on Jones street in
Raleigh, shall be used for such purposes and in
such manner as may be directed or prescribed by
the board of public buildings and grounds, and
they shall have full power and authority to make
such removals, readjustments and to provide such
equipment as may be necessary to carry out the
purposes of this act, and to that end may use the
appropriations thereof made to the board of pub-
lic buildings and grounds, the agricultural depart-
ment shall be permanently located in the agricul-
tural building. (1927, c. 153, s. 3; 1937, c. 304,
s. 2.)
Editor's Note.— The 1937 amendment inserts the words
"now existing or hereafter erected" in the third and fourth
lines of this section.
§ 7039 (bl). (£oard given supervision of loca-
tion, plan and construction. — The location, plan
and construction of any state building hereafter
erected in Raleigh shall be under the direct con-
trol and supervision of the board of public build-
ings and grounds, unless it shall be otherwise pro-
vided in the act authorizing its erection. (1937,
c. 304, s. 3.)
CHAPTER 118
PUBLIC HEALTH
SUBCHAPTER I. ADMINISTRATION OF
PUBLIC HEALTH LAW
Art. 5 A. Local and District Health Departments
§ 7085(4). County excepted from article. — This
article shall not apply to the county of Rocking-
ham. (1935. c. 142, s. 4; 1937. c. 17.)
Editor's Note. — Prior to the 1937 amendment this section
applied to Martin county.
SUBCHAPTER III. SANITATION AND
PROTECTION OF PUBLIC
Art. 15. Venereal Diseases
Part 1. Control and Treatment
§ 7194(a). Treatment of prisoners infected with
Communicable venereal disease required before re-
lease.— Whenever any person shall be confined or
imprisoned in any state, county, or city prison in
this state and, upon examination provided in Con-
solidated Statutes, seven thousand one hundred
and ninety-four, such person has been found to
be infected by a communicable venereal disease by
the county health officer or other licensed physician
authorized by law to make the said examination,
the said person shall not be set at liberty until
treated for the said disease in accordance with the
provisions of the said section, unless such person1
shall give a bond with surety satisfactory to the
clerk of the superior court of the county where he
is imprisoned, conditioned upon his making his
personal appearance at a stated time and place
before the county health officer, and to submit to
such examinations as may be proper in the case,
and to satisfy said officer that he is undergoing,
or has undergone, satisfactory treatment for his
said disease.
Upon the giving of the said bond, such person
shall, from time to time, as required by the county
health officer, personally appear before him for
examination, and when, in the judgment of the
said health officer, the disease is no longer com-
municable, he shall be permitted to go without
further appearance, and his bond shall be dis-
charged.
The order discharging the said person from
further attendance and examination shall be made
by the clerk of superior court, upon certificate
of the aforesaid health officer or other physician
authorized to make the examination. (1937, c.
230.)
Art. 16A. Health of Domestic Servants
§ 7220(g). Domestic servants required to fur-
nish health certificate. — Hereafter all domestic
servants who shall present themselves for em-
ployment shall furnish their employer with a cer-
tificate from a practicing physician or the public
health officer of the county in which they reside,
certifying that they have been examined within
two weeks prior to the time of said presentation
of said certificate, that they are free from all con-
tagious, infectious or communicable diseases and
showing the non-existence of any venereal disease
which might be transmitted. Such certificate shall
be accompanied by the original report from a
laboratory approved by the state board of health
for making such tests, showing that the Wasser-
man or any other approved tests of this nature
are negative. Such tests to have been made with-
in two weeks of the time of the presentation of
such certificates; and such certificate shall also
affirmatively state the non-existence of tubercu-
losis in the infectious state. (1937, c. 337, s. 1.)
§ 72201(h). Annual examinations. — All domestic
servants employed shall be examined at least once
each year and as often as the employer may re-
quire, and upon examination shall furnish to the
employer all of the evidence of the condition of
their health, as is set out in section 7220(g). (1937,
c. 337, s. 2.)
Art. 21. Public Bakeries
§ 7251 (t). Inspection fee. —
Provided, that no inspection fee shall be re-
quired of farm women in North Carolina who
make cakes and breads and sell the same on the
home demonstration curb markets. (1921, c. 173,
s. 9; 1937, c. 281.)
Editor's Note.— The 1937 amendment directed that the
above provision be added at the end of this section. As the
rest of the section was not affected by the amendrLSnt, it is
not set out in this supplement.
[ 208
§ 7251(w)l
PUBLIC HEALTH
§ 7251 (hh) 28
Art. 21A. Milk and Milk Bottles, Crates, Cans'
and Other Containers of Dairy Products
§ 7251 (w)l. Regulation of use of milk con-
tainers.
This and Following Two Sections Are Unconstitutional. —
Chapter 284, P. t,. 1933, which was codified as the first three
sections of this article, was held unconstitutional and void
as an unwarranted exercise of the police power, since its
provisions prohibiting the use of milk bottles by the owner,
or person in lawful possession thereof, for purposes other
than the distribution of milk bears no relation to the public
health, or ordinarily with the susceptibilities of the public,
unless such container, after its use for other purposes, is
used or intended to be used for the distribution of milk.
State v. Brockwell, 209 N. C. 209, 183 S. E. 378.
Art. 21B. Meat Markets and Abattoirs
§ 7251 (w) 6. Sanitation and rating of places
selling fresh meats. — For the better protection of
the public health, the state board of health is
hereby authorized, directed and empowered to
prepare and enforce rules and regulations govern-
ing the sanitation of meat markets, abattoirs, and
other places where meat or meat products are
prepared, handled, stored, or sold, and to provide
a system of scoring and grading such places. No
such meat market or abattoir shall operate which
receives a sanitary rating of less than seventy per
cent (70%): Provided, that this article shall not
apply to farmers and others who raise, butcher
and market their own meat or meat products.
(1937, c. 244, s. 1.)
§ 7251(w)7. When inspectors required to file
reports with local health officer. — Where munici-
palities or counties have a system of meat inspec-
tion as already provided by law the person or
persons responsible for such meat inspection work
shall file a copy of all inspection work, reports
and other official data with the city or the county
health officer, as the case may be, and in munici-
palities and counties having no organized health
department, such person or persons shall file a
copy of all inspection work, reports and other
official data with the state health officer. The
state board of health shall provide or approve the
report forms referred to in this section. (1937, c.
244, s. 2.)
§ 7251 (w) 8. Violation a misdemeanor. — Any
person, firm, or corporation found guilty of vio-
lating any of the provisions of this article, or any
of the rules and regulations that may be provided
under this article, shall be guilty of a misdemean-
or, and upon conviction shall be fined not less
than ten dollars ($10.00) nor more than fifty
dollars ($50.00), or imprisoned in jail for not less
than thirty days at the discretion of the court.
(1937, c. 244, s. 3.)
§ 7251 (w) 9. Repealing clause. — All laws and
clauses of laws in conflict with this article are
hereby repealed: Provided, that nothing in this
article shall in any way repeal or affect sections
4768(a)-4768(h), or the rules and regulations
promulgated thereunder. (1937, c. 244, s. 4.)
Art. 22. Manufacture, etc., of Bedding
§§ 7251(hh)l3-7251(hh)24: Repealed by Public
Laws 1937, c. 298, s. 13, codified as § 7251(hh)36.
§ 7251 (hh) 25. Definitions; possession prima
facie evidence of intent to sell. — As used in this
law:
The word "mattress" means: Any mattress, up-
holstered spring, comforter, pad, cushion, or pil-
low to be used in sleeping.
The word "person" means: Any individual,
corporation, partnership, or association.
The term "new material" means: Any material
which has not been used in the manufacture of
another article or used for any other purpose:
Provided, this shall not exclude by-products of
industry that have not been in human use, unless
included in the following paragraph.
The term "previously used material" means:
(a) Any material which has been used in the
manufacture of another article or used for any
other purpose: (b) any material made into thread,
yarn, or fabric, and subsequently torn, shredded,
picked apart, or otherwise disintegrated, including
juts and shearings.
The word "renovate" means: The reworking
of a used mattress and returning it to the owner
for his own personal use or the use of his im-
mediate family.
The word "manufacture" means: Any making
or re-making of a mattress out of new or pre-
viously used material, other than renovating.
The word "sell" or "sold" shall, in the corre-
sponding tense, include: Sell, offer to sell, deliver
or consign in sale, or possess with intent to sell,
deliver, or consign in sale.
Possession of one or more articles covered by
this law when found in any store, warehouse, or
place of business, other than a private home, hotel,
or other place where such articles are ordinarily
used, shall constitute prima facie evidence that the
article or articles so possessed are possessed with
intent to sell, or sterilize and sell.
All words shall include plural and singular,
masculine and feminine, as the case demands.
(1937, c. 298, s. 1.)
§ 7251 (hh) 26. Sterilization; tagging mattresses!
received for renovation, etc. — No person shall ren-
ovate a mattress without first sterilizing it by a
process approved by the state health officer.
No person shall manufacture a mattress contain-
ing previously used material without first steriliz-
ing such material by a process approved by the
state health officer.
No person shall sell or give away in connection
with a sale a used mattress or a mattress con-
taining any previously used material unless steri-
lized, since last used, by a process approved by
the state health officer: Provided, this law shall
not apply to a mattress sold by the owner from
his home direct to the purchaser, unless such
mattress has been exposed to an infectious or con-
tagious disease.
Any person desiring to operate a sterilizer
shall first secure license from the state health
officer, the fee for which shall be twenty-five dol-
lars ($25.00) for each calendar year or part there-
of. Such license shall be kept conspicuously posted
in the place of business: Provided, however, that
blind persons operating under the direction of the
state commission for the blind shall be exempt
from said license fee.
Any sterilizing apparatus used under this law
shall be inspected and approved by a representa-
tive of the state health officer. If, in the opinion
of such representative, the apparatus does not
N. C. Supp.— 14
209
§ 7251 (hh) 27
PUBLIC HEALTH
§ 7251 (hh) 30
effectively sterilize, or if at any time it is not
maintained in a satisfactory condition, it may be
condemned by any representative of the state
health officer, in which event it shall not be used
for sterilizing any mattress or material required
to be sterilized under this law until the defects
have been remedied and the apparatus approved
by a representative of the state health officer.
Any person sterilizing material or mattresses
for another person shall keep in a well-bound
book a complete record of the kind of material
and mattresses so sterilized, such record to be
open to inspection by any representative of the
state board of health.
Any person who receives a mattress for reno-
vation or storage shall keep attached thereto,
from the time received, a tag on which is legibly
written the date of receipt and the name and ad-
dress of the owner. (1937, e. 298, s. 2.)
Editor's Note. — This statute escapes the condemnation
which befell the Pennsylvania statute in Weaver v. Palmer
Bros. Co., 270 U. S. 402, 46 S. Ct. 320, 70 L. Ed. 654. In
fact, the opinion in that case indicates that sterilization is
the proper way to regulate the manufacture of bedding and
mattresses from second-hand material. 15 N. C. Iyaw Rev.,
No. 4, p. 328.
§ 7251 (hh) 27. Manufacture regulated; required
information to be stamped on tags; use of
"sweeps" or "oily sweeps" material. — No person
shall manufacture or sell a mattress to which is
not securely sewed a cloth or cloth-backed tag1
at least two (2) inches by three (3) inches in size,
to which is affixed the adhesive stamp provided
in section 7251(hh)29. Such stamp shall be so
affixed as not to interfere with the wording on
the tag.
Upon said tag shall be plainly stamped or
printed with ink in English (a) the name of the
material or materials used to fill such mattress;
(b) the name and address of the maker or vendor
of the mattress; (c) in letters at least one-eighth
inch high the words "made of new material," if
such mattress contains no previously used ma-
terial; or the words "made of previously used ma-
terials," if such mattress contains any previously
used material; or the words "second-hand" on
any mattress which has been used but not remade.
A white tag shall -be used for new materials
and a yellow tag for previously used materials or
second-hand mattresses. Such tag shall be ap-
proved by the state health officer.
Nothing false or misleading shall appear on said
tag, and it shall contain all statements and the
stamp required by this law, and shall be sewed
to the outside covering of every mattress being
manufactured, before the filling material has been
inserted.
When the word "cotton" is used, the kind of
cotton shall be clearly stated on said tag.
Material known in the cotton waste trade as
"sweeps" or "oily sweeps" shall not be used un-
less washed in accordance with rules to be pro-
mulgated by the state board of health: Provided,
this provision shall not go into effect until six
months after the ratification of this law.
The name "felt" shall not be used unless the
material has been carded in layers by a garnett
machine and is inserted into the mattress in lay-
ers. (1937, c. 298, s. 3.)
§ 7251 (hh) 28. Altering, etc., tags prohibited. —
No person, other than a purchaser for his own use
or a representative of the state board of health,
shall remove from a mattress, or deface or alter,
the tag required by this law. (1937, c. 298, s. 4.)
§ 7251 (hh) 29. Enforcement funds.— The state
health officer is hereby charged with the adminis-
tration and enforcement of this law, and he shall
provide specially designated adhesive stamps for
use under section 7251(hh)27. Upon request he
shall furnish no less than five hundred said stamps
to any person paying in advance ten dollars ($10.00)
per five hundred stamps. State institutions en-
gaged in the manufacture of mattresses for their
own use or that of another state institution shall
not be required to use such stamps.
All money collected under this law shall be paid!
to the state health officer, who shall place all such
money in a special "bedding law fund," which is
hereby created and specifically appropriated to
the state board of health, solely for expenses in
furtherance of the enforcement of this law. The
state health officer shall semiannually render to
the state auditor a true statement of all receipts
and disbursements under said fund, and the state
auditor shall furnish a true copy of said statement
to any person requesting it.
All money in the "bedding law fund" shall be
expended solely for (a) salaries and expenses of
inspectors and other employees who devote their
time to the enforcement of this law, or (b) ex-
penses directly connected with the enforcement
of this law, including attorney's fees, which are
expressly authorized to be incurred by the state
health officer without authority from any other
source when in his opinion it is advisable to em-
ploy an attorney to prosecute any persons: Pro-
vided, however, that a sum not exceeding twenty
per cent (20%) of such salaries and expenses
above enumerated may be used for supervision
and general expenses of the state board of health.
(1937, c. 298, s. 5.)
§ 7251 (hh) 30. Enforcement by state board of
health. — The state board of health, through its
duly authorized representatives, is hereby au-
thorized and empowered to enforce the provisions
of this law. Any person who shall hinder or
prevent any representative of the state board of
health in the performance of his duty hereunder
shall be guilty of a violation of this law.
Every place where mattresses are made, re-
made, renovated or sold, or where material, which
is to be used in the manufacture of mattresses, is
mixed, worked, or stored, shall be inspected by
duly authorized representatives of the state board
of health.
Any representative of the state board of health
may order off sale, and so tag, any mattress which
is not made and tagged as required by this law,
or which is tagged with a tag containing a state-
ment false or misleading, and such mattress shall
not be sold until such defect is remedied and a
representative of the state board of health has re-
inspected same and removed the "off sale" tag.
Any person supplying material to a mattress
manufacturer shall furnish therewith an itemized
invoice of all material so furnished. Each ma-
terial entering into willowed or other mixtures
shall be shown on such invoice. The mattressi
manufacturer shall keep such invoice on file for
[210
§ 7251(hh)31
PUBLIC PRINTING AND DEPARTMENT OF LABOR
§ 7312(7)
one year subject to inspection by any representa-
tive of the state board of health.
When an authorized representative of the state
board of health has reason to believe that a mat-
tress is not tagged or filled as required by this
law, he shall have authority to open a seam of
such mattress to examine the filling; and if unable
after such examination to determine if the filling
is of the kind stated on the tag, he shall have the
power to examine any purchase or other records
necessary to determine definitely the kind of ma-
terial used in such mattress, and he shall have
power to seize and hold for evidence any such
records and any mattress or mattress material
which in his opinion is made, possessed, or of-
fered for sale contrary to this law, and shall have
power to take a sample of any mattress or mat-
tress material for the purpose of examination or
for evidence. (1937, c. 298, s. 6.)
§ 7251(hh)31. Licenses. — No person, except for
his own personal use or the use of his immediate
family, and blind persons operating under the di-
rection of the state commission for the blind,
shall manufacture mattresses until he has secured
a license therefor from the state board of health
upon payment of an annual inspection fee of
twenty-five dollars ($25.00), and in case such
mattresses are manufactured from previously used
material he shall also secure and pay for the ad-
ditional license required under section 7251(hh)26.
The licenses so issued shall be valid until the end
of the calendar year in which issued, or until
voided for violation of this law, and shall at all
times be kept conspicuously posted in the place
of business.
The state health officer may revoke and void the
aforesaid license and the sterilizing license issued
under section two of any person convicted a
second time for violating this law; and such per-
son shall not thereafter make, remake, renovate,
or sell a mattress for a period of six months after1
such revocation, and then only after he has paid
the required fees for new licenses. (1937, c. 298,
s. 7.)
§ 7251(hh)32. Unit of offense.— Any person
who fails to comply with any provision of this
law, or who counterfeits the stamp provided in
section 7251 (hh) 29, shall be guilty of a violation
of this law. Each stamp so counterfeited and
each mattress made, renovated, or sold contrary
to this law shall be a separate violation. (1937, c.
298, s. 8.)
§ 7251 (hh) 33. Issue of warrants. — If any per-
son submits reasonable proof of any violation of
this law to any law enforcement officer, or to a
representative of the state board of health, it shall
be the duty of said officer or representative of the
state board of health to swear out a warrant
against the offender. (1937, c. 298, s. 9.)
§ 7251 (hh) 34. Penalty. — A person who violates
this law shall, upon conviction thereof, be fined
not more than fifty dollars ($50.00), or imprisoned
in the county jail not to exceed thirty days. (1937,
c. 298, s. 10.)
§ 7251 (hh) 35. Blind persons exempt. — In the
cases where mattresses are manufactured or reno-
vated in a plant or place of business owned solely
by blind persons in which place of business not
more than one sewing assistant is employed in
the manufacture or renovation of mattresses,
neither the payment of the license fees nor the
use of stamps shall be required, and mattresses
made by such blind persons may be sold by any
dealer without the stamps being affixed. (1937, c
298, s. 11.)
§ 7251 (hh) 36. Repeal of law no bar to prose-
cution of violators. — Chapter one hundred sixty-
seven of the Public Laws of one thousand nine
hundred thirty-five [§ 7251(hh)13 et seq.] is here-
by repealed, such repeal to be effective upon the
ratification of this law: Provided, however, that
such repeal shall not bar the prosecution of per-
sons who have violated the provisions of chapter
one hundred sixty-seven of the Public Laws of
one thousand nine hundred thirty-five prior to its
repeal, whether such prosecutions are pending or
otherwise. (1937, c. 298, s. 13.)
CHAPTER 119
PUBLIC HOSPITALS
Art. 2. Municipal Hospitals
Part 2. County Tuberculosis Hospital
§ 7280. Election for bond issue; special tax. —
The board of commissioners are also authorized
to levy a special annual tax not to exceed eight
cents on the one hundred dollars valuation of
property and fifteen cents on the poll to be used
as a maintenance fund for the hospital for tuber-
culosis.
(1937, c. 197.)
Editor's Note. — The 1937 amendment increased the maxi-
mum tax rate authorized in the fourth sentence from five
to eight cents. The rest of the section, not being affected
by the amendment, is not set out.
CHAPTER 120
PUBLIC PRINTING AND DEPARTMENT
OF LABOR
Art. 2. Department of Labor
§ 7310. Election of commissioner; term; salary;
vacancy. — The commissioner of labor shall be
elected by the people in the same manner as is
provided for the election of the secretary of state.
His term of office shall be four years, and he
shall receive a salary of five thousand, two hun-
dred fifty dollars ($5,250.00) per annum. Any
vacancy in the office shall be filled by the gover-
nor, until the next general election. The office
of the department of labor shall be kept in the
city of Raleigh and shall be provided for as are
other public offices of the state. (Rev., ss. 3909,
3910; 1919, c. 314, s. 4; 1931, c. 312, s. 2; 1933, c.
282, s. 5; 1935, c. 293; 1937, c. 415.)
Editor's Note. — Prior to the 1937 amendment the commis-
sioner's salary was $4,500 per annum.
Art. 2A. Board of Boiler Rules and Bureau of
Boiler Inspection
§ 7312(7). Certain boilers excepted.— This arti-
cle shall not apply to boilers under federal con-
trol or to stationary boilers used by railroads
which are inspected regularly by competent in-
[ 211 ]
§ 7312(11)
REAL ESTATE BROKERS AND SALESMEN
§ 7312(dd)
spectors, or to boilers used solely for propelling1
motor road vehicles; or to boilers of steam fird
engines brought into the state for temporary use1
in times of emergency to check conflagrations;
or to portable boilers used for agricultural pur-
poses only or for pumping or drilling in the open
field for water, gas or coal, gold, talc or other
minerals and metals; or to steam heating boilers
which carry pressures not exceeding fifteen
pounds per square inch, built in accordance with
the boiler code of the American Society of Me-
chanical Engineers. (1935, c. 326, s. 6; 1937, c.
125, s. 1.)
Editor's Note. — Prior to the 1937 amendment this section
excepted boilers used for heating purposes.
§ 7312(11). Boiler inspections; fee; certificate;
suspension. — On and after April first, nineteen
hundred and thirty-five, each steam boiler used or'
proposed to be used within this state, except
boilers exempt under section 7312(7), shall be
thoroughly inspected internally and externally
while not under pressure by the chief inspector
or by one of the deputy inspectors or special in-
spectors provided for herein, as to its design, con-
struction, installation, condition and operation;
and if it shall be found to be suitable, and to con-
form to the rules and regulations of the board of
boiler rules, a certificate of inspection shall be
issued to the owner of such boiler inspected with-
out cost or fee, and the chief inspector shall issue
to the owner or user thereof an inspection cer-
tificate specifying the maximum pressure which
it may be allowed to carry.
(1937, c. 125, s. 2.)
Editor's Note. — Prior to the 1937 amendment the first sen-
tence of this section provided for a fee of one dollar tor
each inspection certificate issued. The rest of the section,
toot being affected by the amendment, is not set out.
§ 7312(15). Fee for internal and external in-
spections.— The owner or user of a steam boiler,
required by this article to be inspected by the
•chief boiler inspector or a deputy inspector, shall
pay to the inspector six ($6.00) dollars for each
fire tube boiler over thirty inches in diameter in-
ternally inspected and four ($4.00) dollars for
each fire tube boiler over thirty inches in diameter1
externally inspected while under pressure, and
shall pay to the inspector four ($4.00) dollars for
«ach fire tube boiler up to and including thirty
inches in diameter internally inspected and three
($3.00) dollars for each fire tube boiler up to and
including thirty inches in diameter externally in-
spected while under pressure. All water tube
boilers shall be charged six ($6.00) dollars for
each internal inspection and four ($4.00) dollars
for each external inspection while under pressure:1
Provided, that not more than ten ($10.00) dollars
shall be collected for any one fire tube boiler over
thirty inches in diameter for any one year; that
not more than seven ($7.00) dollars be collected
for any one fire tube boiler up to and including1
thirty inches in diameter for any one year, and
that not more than ten ($10.00) dollars be col-
lected for any water tube boiler for any one year.
The inspector shall give receipts for said fees and
shall pay all sums so received to the commissioner1
of labor, who shall pay the same to the treasurer
of the state. The treasurer of the state shall hold
the fees collected under this section and under
section 7312(11) in a special account to pay the
salaries and expenses incident to the administra-
tion of this article, the surplus, with the approval
of the director of the budget, to be added to the
appropriation of the division of standards and in-
spections of the department of labor for its gen-
eral inspectional service. (1935, c. 326, s. 13;
1937, c. 125, s. 3.)
Editor's Note. — The 1937 amendment made changes in the
inspection fees.
§ 7312(16). Bonds of chief inspector and deputy
inspectors. — The chief inspector shall furnish as
bond in the sum of five thousand dollars ($5,000),
and each of the deputy inspectors shall furnish
a bond in the sum of one thousand dollars
($1,000), conditioned upon the faithful perform-
ance of their duties and upon a true account of
moneys handled by them respectively, and the
payment thereof to the proper recipient. Thel
cost of said bonds shall be paid by the state treas-
urer out of the special fund provided for in sec-
tion 7312(15). (1935, c. 326, s. 14; 1937, c. 125, s. 4.)
Editor's Note. — Prior to the 1937 amendment this section
excepted certain counties and ground sawmills.
Art. 3. Free Employment Bureau
§1 73H2(a). Creation of bureau; officer in/
charge; assistants and employees.
As to transfer of state employment service to the unem-
ployment compensation commission, see § 8052(12).
CHAPTER 120B
REAL ESTATE BROKERS AND SALESMEN
§ 7312(cc). Title; license for real estate bro-
kers and salesmen, required. — The chapter shall
be known and may be cited as the North Carolina
Real Estate License Act of one thousand nine
hundred thirty-seven, and on and after June first,
one thousand nine hundred and thirty-seven it
shall be unlawful for any person, co-partnership,
association or corporation to engage in or carry
on, or to advertise or hold himself, itself or them-
selves out as engaging in or carrying on the busi-
ness, or act or assume to act in the capacity of
a real estate broker or real estate salesman with-
in this state without first obtaining a license froml
the North Carolina real estate commission. (1937,
c. 292, s. 1.)
§ 7312(dd). Definitions and exceptions. — (A)
A real estate broker within the meaning of this
chapter is any person, firm, co-partnership, as-
sociation or corporation who for a compensation
or other valuable consideration, directly or in-
directly paid or promised, expressed or implied,
or in the expectation or upon the promise of re-
ceiving a compensation or valuable consideration,
sells, exchanges, purchases, appraises, auctions,
rents, leases or negotiates the sale, exchange, pur-
chase, rental or leasing of the real estate of others,
or offers, attempts or agrees to appraise, auction,
sell, exchange, buy, lease, rent, or to negotiate
the sale, exchange, purchase, rental or leasing of
the real estate of others, or lists or offers or at-
tempts or agrees to list any real property of
others, or interest therein or concerning the same,
including mineral and oil rights or leases; or who
collects or offers or attempts or agrees to collect
rental for the use of real estate of others, or who
shall advertise or hold out to the public by any
[ 212
§ 731 2 (ee)
REAL ESTATE BROKERS AND SALESMEN
§ 7312(gg)
oral or printed solicitation or representation that
such person, firm, co-partnership, association or
corporation is engaged in the business of apprais-
ing, auctioning, selling, exchanging, buying, leas-
ing or renting real estate of others or any interest
therein, including mineral or oil rights or leases of
others as a whole or partial vocation.
(B) A real estate salesman within the meaning
of this chapter is any person who for a compensa-
tion or valuable consideration paid or promised is
employed or engaged, either directly or indirectly,
as a whole or partial vocation by or on behalf of
a licensed real estate broker to do, perform, offer
or attempt to perform any act or acts enumerated
under the definition of a real estate broker in sub-
section (A) of this section.
(C) The provisions of this chapter shall not
apply to any person, firm, co-partnership, associa-
tion or corporation who as owner or lessor shall
perform any of the acts aforesaid with reference
to property owned or leased by it or them or to
the regular employees thereof with respect to the
property so owned or leased, where such acts are
performed in the regular course of, or as incident
to the management of such property and the in-
vestment therein, nor shall the provisions of this
chapter apply to persons acting as attorney in fact
under a bona fide duly executed power of attorney
from the owner authorizing the final consumma-
tion by performance of any contract for the sale,
leasing or exchange of real estate, nor shall this
chapter be construed to include in any way the
services rendered by an attorney-at-law in the per-
formance of his duties; nor shall it be held to in-
clude while acting as such a receiver, trustee in
bankruptcy, administrator or executor, or any
person doing any of the acts specified in subsection
(A) of this section under order of any court, nor
to include a trustee or mortgagee acting under a
trust or mortgage agreement, deed of trust, mort-
gage or will, or the regular salaried employees
thereof. (1937, c. 292, s. 2.)
§ 7312(ee). Creation of North Carolina real es-
tate commission; details of same. — (A) There is
hereby created the North Carolina real estate
commission. The governor shall appoint three
persons as members of the commission, each of
whom shall have been regularly and continuously
engaged in the real estate business in the state
of North Carolina, as is defined by this chapter,
for a period of at least five years immediately
prior to appointment; one member shall be ap-
pointed for a term of one year; one member shall
be appointed for a term of two years; one member
for a term of three years and until their successors
are appointed and qualified; thereafter the term
of the members of the said commission shall be
for three years and until their successors are ap-
pointed and qualified. Members to fill vacancies
shall be appointed by the governor for the unex-
pired term. The commission, immediately upon
the qualification of the member appointed in each
year, shall organize by selecting from its members
a chairman, and may do all things necessary and
convenient for carrying into effect the provisions
of this chapter, and may from time to time pro-
mulgate necessary rules and regulations. Two
members of the commission shall constitute a
quorum for the transaction of business.
The commission shall employ and at its pleasure
discharge a secretary and such deputies, assistants,
and clerks as shall be deemed necessary to dis-
charge the duties imposed by the provisions of
this chapter, and to affect its purposes and shall
outline their duties and fix their compensation,
subject to the general laws of the state. The
commission shall obtain such office space, furni-
ture, stationery, fuel, light and other proper con-
veniences as shall be reasonably necessary for
carrying out the provisions of this chapter.
Each member of the commission shall receive
as full compensation for each day actually spent
on the work of said commission the sum of ten
dollars per day, and his actual and necessary ex-
penses incurred in the performance of duties per-
taining to his office.
The commission shall adopt a seal with such
design as the commission may prescribe engraved
thereon by which it shall authenticate its proceed-
ings. Copies of all records and papers in the
office of the commission, duly certified and au-
thenticated by the seal of said commission, shall
be received in evidence in all courts equally and
with like effect as the original. All records kept
in the office of the commission under authority
of this chapter shall be open to public inspection
under such rules and regulations as shall be
prescribed by the commission.
(B) All fees, charges and penalties collected by
the commission under the provisions of this
chapter shall be paid into the general fund in the
state treasury. All expenses incurred by the
commission under the provisions of this chapter,
including compensation to members, secretaries,
deputies, assistants and clerks, shall be paid out
of the general fund in the state treasury upon
warrants of the state auditor from time to time
when vouchers therefor are exhibited and approved
by the commission: Provided, that the total ex-
pense for every purpose incurred shall not ex-
ceed the total fees, charges and penalties collected
by the commission. (1937, c. 292, s. 3.)
§ 7312(ff). Qualifications for license; licenses
for partnerships and corporations. — A license shall
be granted only to persons who are trustworthy
and who bear a good reputation for honesty, truth-
fulness and fair dealing, and are competent to
transact the business of a real estate broker or a
real estate salesman in such a manner as to safe-
guard the interests of the public, and only after
satisfactory proof has been presented to the com-
mission.
A co-partnership or corporation shall obtain its
license under this chapter only by the qualifica-
tion of, and issuance of license to, its members
and officers who are actively engaged in the real
estate business of said co-partnership or corpora-
tion, without the payment of additional fee by said
co-partnership or corporation. (1937, c. 292, s. 4.)
§ 7312(gg). Application for license. — Every ap-
plicant for a real estate license under this chapter
shall apply therefor in writing upon blanks pre-
pared or furnished by the real estate commission.
Such application shall be accompanied by the rec-
ommendation of at least two citizens, real estate
owners, not related to the applicant who have
known the applicant for a period of two years or
more, which recommendation shall certify that
[ 213 ]
§ 7312(hh)
REAL ESTATE BROKERS AND SALESMEN
§ 7312(kk)
the applicant bears a good reputation for honesty,
truthfulness, fair dealing and competency, and
recommending that a license be granted to the
applicant. (1937, c. 292, s. 5.)
§ 7312 (hh). License fees; duplicate licenses;
penalty for conducting business without license. —
Every application for a license under the provi-
sions of this chapter shall be accompanied by the
license fee herein prescribed. Every original ap-
plication for a broker's license shall be accom-
panied by a fee of ten dollars, and every original
.application for a real estate salesman's license
shall be accompanied by a fee of five dollars.
Every license shall expire on the thirty-first day
of May of each year, and the commission shall
issue a new license for each ensuing year, in the
absence of any reason or condition which might
warrant their refusal of the granting of a license,
upon receipt of the written request of the appli-
cant, accompanied by a fee of ten dollars in the
case of a broker and five dollars in the case of a
salesman. No person, firm or corporation shall
engage in the business of a real estate broker or
real estate salesman, as defined in this chapter,
after the expiration of his or its license on the
thirty-first day of May of each year, unless and
until such person, firm or corporation shall be
issued a new license by the real estate commis-
sion upon payment of the annual fee herein pre-
scribed. The fee for all licenses issued under the
provisions of this chapter shall be at all periods
of the year the same as above prescribed.
If a real estate broker maintains more than one
place of business within the state, a duplicate li-
cense shall be issued to such broker for each
branch office maintained, or, in the event such
broker be a co-partnership, association or corpo-
ration, a duplicate shall be issued to the member
or officer thereof upon the payment of a single fee
of one dollar for each duplicate license issued.
In the event that the commission does not issue
a license, the fee shall be returned to the applicant.
In the absence of any reason for refusing a
license, a penalty of not more than twenty-five
dollars may be imposed and collected by the com-
mission in cases of both brokers and salesmen
beginning operations without first making appli-
cation for a license or for continuing in business
after license has expired, without making appli-
cation for the renewal thereof. (1937, c. 292, s. 6.)
§ 7312(ii). Examinations required of applicants
for license; other powers of commission in con-
nection with granting licenses. — (A) In addition
to all other requirements of this chapter as to
truthfulness, honesty, a good reputation and com-
petency, every applicant for an original license as
a real estate broker and/or salesman shall submit
to a written examination to be conducted by the
commission or its duly deputized representatives:
Provided, however, that any person who has been
regularly and actively engaged in the real estate
business in this state for a period of one year next
preceding the effective date of this chapter, and
is thus engaged in this state at the time this chap-
ter goes into effect, may secure a license as a
broker or salesman without an examination, pro-
vided such person shall submit his application,
together with the fees governing the same as is
prescribed by this chapter, to the commission
within six months after the effective date of this
chapter. For the purposes of this section all ap-
plications shall be deemed to be original unless
the applicant had either a broker's or salesman's
license issued under this chapter in effect on May
thirty-first of the preceding year. The commis-
sion shall hold examinations at such times and
places in the county where the applicant resides
as it may determine, said examinations to be held
within thirty days after the filing of such applica-
tion.
(B) The commission may require such other
proof as shall be deemed desirable with due regard
to the paramount interests of the public as to the
honesty, truthfulness, integrity and competency
of the applicant. The commission is expressly
vested with the power and authority to make
and enforce any and all such reasonable rules and
regulations connected with the application for
licenses hereunder, including information to be
required from the applicant concerning his quali-
fications as shall be deemed necessary to ad-
minister and enforce the provisions of this chap-
ter. (1937, c. 292, s. 7.)
§ 7312(jj). Details relating to license; display
of license, name, etc. — It shall be the duty of the
commission to issue a license as real estate broker
or real estate salesman to all applicants who shall
be duly qualified hereunder, and who shall com-
ply with all provisions of law and all the require-
ments of this chapter. This license shall show
the name and address of the licensee, and in case
of a real estate salesman's license, shall show the
name of the real estate broker by whom he is em-
ployed. Each license shall have imprinted there-
on the seal of the commission, and in addition to
the foregoing, shall contain such matter as shall
be prescribed by the commission. It shall be the
duty of each real estate broker and salesman to
conspicuously display his license in his place of
business.
Every licensed real estate broker under the pro-
visions of this chapter shall be required to have
and maintain a definite place of business in the
state of North Carolina, which shall serve as his
office for the transaction of business, and each
person, firm, co-partnership or corporation licensed
as a broker under the provisions of this chapter
shall erect and maintain a sign in a conspicuous
location at his place of business to indicate that
he or it is a licensed real estate broker, and the
name of said person, firm, co-partnership or cor-
poration shall be clearly shown thereon. (1937,
c. 292, s. 8.)
§ 7312 (kk). Suspension and revocation of li-
cense.— (A) The commission may, upon its own
motion, and shall, upon the verified complaint in
writing of any person, provided such complaint or
such complaints, together with evidence, docu-
mentary or otherwise, presented in connection
therewith, shall make a prima facie case, investi-
gate the actions of any real estate broker or real
estate salesman, or any person who shall assume
to act in either such capacity within this state,
and shall have the power to suspend or revoke
any license issued under the provisions of this
chapter at any time where the licensee has by
false or fraudulent representation obtained license
or where the licensee, in performing or attempt-
[ 214 ]
§ 7312(11)
REAL ESTATE BROKERS AND SALESMEN
§ 7312(mm)
ing to perform any of the acts mentioned herein,
is deemed to be guilty of:
(1) Fraud or fraudulent practices; or
(2) Acting for more than one party in a trans-
action without the knowledge of all parties for
whom he acts; or
(3) Failing to account for or to remit any mon-
eys or properties coming into his possession which
belongs to others; or
(4) Paying a commission or valuable considera-
tion for acts or services performed in violation of
this chapter; or
(5) Forgery, embezzlement, obtaining money
under false pretense, larceny, conspiracy to de-
fraud, or like offense or offenses; or
(6) Any dishonest advertising; or
(7) Violation of any of the provisions of this
chapter; or
(8) Untrustworthiness or incompetency to act
as a real estate broker or salesman.
(B) The commission shall, in addition, have
power to revoke or suspend any license under the
provisions of this chapter at any time where the
licensee performs any act or acts, or offers or at-
tempts or agrees to do any act or acts, for which
the commission may lawfully refuse to issue a li-
cense to any applicant. (1937, c. 292, s. 9.)
§ 7312(11). Provision for hearing. — The com-
mission shall, before denying an application for
license or before revoking any license and at least
ten days prior to the date set for the hearing, no-
tify in writing the applicant for license, or the li-
censee, of any charges made and shall afford said
applicant or licensee an opportunity to be heard
in person or by counsel in reference thereto. Such
written notice may be served by delivery of the
same personally to the applicant or licensee, or by
mailing the same by registered mail to the last
known business address of such licensee, or in
the case of an applicant to the business address
indicated on the application for license. If the
applicant or licensee be a real estate salesman, the
commission shall also notify the broker employ-
ing him, by mailing notice by registered mail to
the broker's last known address. The hearing on
such charges shall be at such time and place as
the commission shall prescribe. The commission
shall have power to subpoena and bring before
it any person in this state and administer oaths
to and take testimony of any such persons under
oath or to cause his deposition to be taken. Such
hearings may be held by the commission or any
member thereof, and witnesses giving testimony
under a subpoena before the commission or any
member thereof or by deposition shall be entitled
to the same fees and mileage as is allowed by
law in civil actions. In cases heard before the
commission or any member thereof, if the com-
mission shall determine that any applicant is not
qualified to receive a license, a license shall not
be granted to said applicant, and if the commis-
sion shall determine that any licensee is guilty of
a violation of any of the provisions of this chap-
ter, his or its license shall be suspended or re-
voked. If the charges preferred against such ap-
plicant or licensee are sustained and license is de-
nied or suspended or revoked, such applicant or
licensee shall be taxed with the cost of the hear-
ings: Provided, however, that such bill of costs
shall not include any compensation to the com-
mission or member thereof before whom the hear-
ings are conducted.
Any applicant for license whose application is
denied or any licensee whose license is revoked
or suspended by the commission shall have the
right to appeal to the superior court of the county
in which such applicant or licensee resides, which
court shall hear the matter on appeal, and may
in its discretion sustain, reverse or modify any
decision or order made by the commission: Pro-
vided, however, that such appeal from the deci-
sion of the commission shall be taken by said ap-
plicant or licensee within thirty days from the
date of said decision or within thirty days after
receipt of notice of the decision of the commission
to be sent by registered mail, but not thereafter.
Pending the appeal the court may make such or-
ders with respect to the matter in controversy as
justice may require. (1937, c. 292, s. 10.)
§ 73 12 (mm). Non-resident brokers and sales-
man.— (A) A non-resident of this state may be-
come a real estate broker or a real estate sales-
man by conforming to all of the conditions of this
paragraph and this chapter relative to resident
brokers and salesmen.
(B) In its discretion the* commission may rec-
ognize, in lieu of the recommendations and state-
ments required to accompany an application for
license, the license issued to a non-resident broker
or salesman in such other state upon payment of
the license fee and the filing by the applicant with
the commission of a certified copy of applicant's
license issued by such other state.
(C) A non-resident who applies for a license
under the privileges accorded by this section, and
to whom a license is issued upon compliance with
all the other requirements of law and provisions
of this chapter, shall not be required to maintain
a definite place of business within this state:
Provided, that such applicant, if a broker, shall
maintain an active place of business within the
state by which he is originally licensed.
(D) Every non-resident applicant, before the
issuance of a license, shall file an irrevocable con-
sent that suits and actions may be commenced
against such applicant in the proper court of any
county of this state in which a cause of action
may arise or in which the plaintiff may reside, by
the service of any process or pleading authorized
by the laws of this state on the secretary of the
commission, said consent stipulating and agreeing
that service of such process or pleadings on said
secretary shall be taken and held in all courts to
be as valid and binding as if service had been
made personally upon said applicant in the state
of North Carolina. Said instrument containing
such consent shall be authenticated by the ac-
knowledged signature and seal thereof, if a cor-
poration, or by the acknowledged signature of a
member or officer thereof, if otherwise. All such
applications, except from individuals, shall be ac-
companied by the duly certified copy of the reso-
lution of the proper officers or managing board,
authorizing the proper officer to execute the same.
In case any process or pleading is served upon
the secretary of the commission it shall be by du-
plicate copies, one of which shall be filed in the
office of the commission and the other immedi-
ately forwarded by registered mail to the main
[215]
§ 7312i(nn)
REFORMATORIES
§ 7343 (k)
office of the licensee against whom or which said
process or pleading is directed.
(E) The commission may waive the require-
ment of a written examination in the case of an
application from a non-resident broker or sales-
man of those states having similar requirements,
under the laws of which similar recognition and
courtesies are extended to licensed real estate
brokers and real estate salesmen of this state.
(1937, c. 292, s. 11.)
§ 7312(nn). Publication of list of licensee*. —
The commission shall at least semi-annually pub-
lish a list of the names and addresses of all licen-
sees licensed by it under the provisions of this
chapter. One of such lists shall be mailed to the
clerk of the superior court in each county of this
state and shall be held by said clerk as a public
record. The commission shall also mail one copy
of such list to each licensed real estate broker or
salesman upon his request therefor, without
charge. (1937, c. 292, s. 12.)
§ 7312l(ooi). Penalties. — Any person, firm, or
corporation who engages in or carries on the
business of a real estate broker or salesman, as
defined in this chapter, without having been is-
sued a license as herein required, or any real es-
tate broker or salesman who carries on the busi-
ness of such real estate broker or salesman after
his or its license hereunder has expired or has
been revoked or suspended as herein provided,
shall be guilty of a misdemeanor, and, upon con-
viction, shall be punished by a fine of not less
than twenty-five dollars nor more than two hun-
dred dollars.
This law shall not be construed to relieve any
person, co-partnership or corporation from civil
liability or criminal prosecution under the general
laws of this state.
It shall be the duty of the commission to aid in
the detection and prosecution of all offenses under
this chapter. (1937, c. 292, s. 13.)
§ 7312(pp). License prerequisite to action for
recovery of fees, commissions, etc. — No action or
suit shall be instituted nor recovery therein be
'had in any court of this state by any person, co-
partnership, association or corporation for com-
pensation, fee or commission for any act done, or
service rendered, the doing or rendering of which
is prohibited under the provisions of this chapter
to others than licensed real estate brokers or
salesman, unless such person, co-partnership, as-
sociation or corporation was duly licensed here-
under as a real estate broker or salesman at the
time of the doing of such act or the rendering of
such service. (1937, c. 292, s. 14.)
§ 7312 (qq). Interpretation and purpose of
chapter. — Nothing in this chapter contained shall
affect the accrual and payment of privilege taxes
on real estate brokers or salesmen prescribed by
the Revenue Act, and all licenses due under said
act shall be paid direct to the commissioner of
revenue or as may be otherwise provided in said
act. The requirements hereof shall also be in ad-
dition to the requirements of any existing or fu-
ture ordinance of any city or town so taxing, li-
censing or regulating real estate brokers and
salesmen. It is the purpose of this chapter to
provide for the regulation and discipline of real
estate brokers and salesmen doing business with-
in the state of North Carolina to the end that the
interests and welfare of the people of said state
shall be safeguarded by such regulation, and the
fees herein charged shall be used by the commis-
sion for the enforcement of the provisions of this
chapter, and shall be in addition to any and all
other privilege taxes, license fees or levies,
whether made by the state of North Carolina or
any county, city or town, when the same are made
under authority of law. (1937, c. 292, s. 17.)
§ 7312 (rr). Counties exempted— This chapter
shall not apply to the counties of Anson, Ashe,
Alexander, Bertie, Brunswick, Beaufort, Bladen,
Burke, Caldwell, Columbus, Cherokee, Cabarrus,
Caswell, Currituck, Camden, Clay, Cumberland,
Chowan, Dare, Davidson, Duplin, Davie, Frank-
lin, Gaston, Graham, Hertford, Hyde, Hoke, Hal-
ifax, Haywood, Henderson, Jones, Jackson, John-
ston, Lee, Lincoln, Moore, Madison, McDowell,
Macon, Montgomery, Northampton, Orange, Pen-
der, Perquimans, Person, Polk, Randolph, Robe-
son, Richmond, Rockingham, Rutherford, Scot-
land, Sampson, Stanly, Swain, Transylvania,
Tyrrell, Union, Vance, Warren, Wilkes, Wayne,
and Yadkin. (1937, c. 292, s. 17^.)
CHAPTER 121
REFORMATORIES
Art. 2. State Home and Industrial School for
Girls
§ 7329. Incorporation and name. — A corpora-
tion to be known and designated as the State
Home and Industrial School for Girls is hereby
created, and as such corporation it is authorized
and empowered to accept and use donations and
appropriations and to do all other things neces-
sary and requisite to be done in furtherance of
the purpose of its organizations and existence as
hereinafter set forth. (1917, c. 255, s. 1; 1937, c.
147, s. 1.)
Editor's Note.— The 1937 amendment changed the name of
the institution by omitting the word "women."
§ 7334. Persons committed to the reformatory;
time of detention. — Any girl who may come or be
brought before any court of the state, and may
either have confessed herself guilty or have been
convicted of being a habitual drunkard, or being
a prostitute, or of frequenting disorderly houses
or houses of prostitution, or of vagrancy, or of
any other misdemeanor, may be committed by such
court for confinement in the institution aforesaid:
(1937, c. 147, s. 2.)
Editor's Note. — The 1937 amendment struck out the words
"or woman" formerly appearing as the third and fourth
words of this section. Only the part of the section affected
by the amendment is set out.
Art. 2A. The Industrial Farm Colony for
Women
§ 7343 (k). Women subject to committal. — The
board of directors may in its discretion receive
and detain as an inmate of the institution any
woman or girl, not otherwise provided for, who
may be sentenced by any court of the United
States within this state: Provided, that no wom-
an who has been adjudged epileptic or insane by
a competent authority, or is of such low mentality
[ 216 ]
§ 7362(c)
SOIL CONSERVATION DISTRICTS
§ 7395(35)
or is so markedly psychopathic as to prevent her
from profiting by the training program of the in-
stitution, shall be admitted.
(1937, c. 277.)
Editor's Note.— The 1937 amendment added the proviso to
the second sentence. The rest of the section, not being af-
fected by the amendment, is not set out here.
Art. 4. Eastern Carolina Industrial Training
School for Boys
§ 7362(c). Establishment and operation of
school; boys subject to committal; control; term
of detention. — The trustees are empowered to es-
tablish and operate a school for the training and
moral and industrial development of the crimi-
nally delinquent white boys of the state; and
when such school has been organized the trustees
may, in their discretion, receive therein such de-
linquent and criminal boys under the age of
twenty years as may be sent or committed there-
to under any order or commitment by the judges
of the superior courts, the judges of the juvenile
courts, or the recorders, or other presiding offi-
cers of the city or criminal courts, and shall have
the sole right and authority to keep, restrain, and
control them during their minority, or until such
time as they shall deem proper for their dis-
charge, under such proper and humane rules and
regulations as may be adopted by the trustees.
All laws and clauses of laws in conflict with the
provisions of this section are hereby repealed.
(1923, c. 254, s. 3; 1937, c. 116.)
Editor's Note.— Prior to the 1937 amendment the age
limit was eighteen years.
Art. 5. Conditional Release and Final Discharge
of Inmates of Certain Training and In-
dustrial Schools
§ 7362(p). Conditional release. — The superin-
tendent of the State Home and Industrial School
for Girls, of the Stonewall Jackson Manual Train-
ing and Industrial School, of the Eastern Caro-
lina Industrial Training School for Boys, and of
the Morrison Training School for Negro Boys,
shall have power to grant a conditional release to
any inmate of the institution over which such su-
perintendent presides, under rules adopted by the
board of trustees or managers of such institution,
and such conditional release may be terminated at
any time by the written revocation of such super-
intendent, which written revocation shall be suffi-
cient authority for any officer of the school or any
peace officer to apprehend any inmate named in
such written revocation, in any county of the
state, and to return such inmate to the institution
from which he or she was conditionally released.
Such conditional release shall in no way affect any
suspended sentence, a condition of which is that
the inmate be admitted to and remain at such in-
stitution. (1937, c. 145, s. 1.)
§ 7362(q). Final discharge. — Final discharge
of any inmate of any institution enumerated in the
preceding section may be granted by the super-
intendent of such institution, under rules adopted
by the board of directors or managers, at any
time after such inmate has been admitted to the
institution: Provided, however, that final dis-
charge must be granted before such inmate ar-
rives at his or her twenty-first birthday. (1937,
c. 145, s. 2.)
[2
CHAPTER 123B
SOIL CONSERVATION DISTRICTS
§ 7395(34). Title of chapter. — This chapter
may be known and cited as the Soil Conservation
Districts Law. (1937, c. 393, s. 1.)
§ 7395(35). Legislative determinations, and dec-
laration of policy. — It is hereby declared, as a
matter of legislative determination — >
A. The Condition. — The farm, forest and graz-
ing lands of the state of North Carolina are
among the basic assets of the state and that the
preservation of these lands is necessary to protect
and promote the health, safety, and general wel-
fare of its people; that improper land-use prac-
tices have caused and have contributed to, and
are now causing and contributing to, a progres-
sively more serious erosion of the farm and graz-
ing lands of this state by wind and water; that
the breaking of natural grass, plant, and forest
cover has interfered with the natural factors of
soil stabilization, causing loosening of soil and ex-
haustion of humus, and developing a soil condition
that favors erosion; that the topsoil is being
blown and washed out of fields and pastures; that
there has been an accelerated washing of sloping
fields; that these processes of erosion by wind and
water speed up with removal of absorptive top-
soil, causing exposure of less absorptive and less
protective but more erosive subsoil; that failure
by any land occupier to conserve the soil and con-
trol erosion upon his lands causes a washing and
blowing of soil and water from his lands onto
other lands and makes the conservation of soil
and control of erosion on such other lands diffi-
cult or impossible.
B. The Consequences. — The consequences of
such soil erosion in the form of soil-blowing and
soil-washing are the silting and sedimentation of
stream channels, reservoirs, dams, ditches, and
harbors; the loss of fertile soil material in dust
storms; the piling up of soil on lower slopes, and
its deposit over alluvial plains; the reduction in
productivity or outright ruin of rich bottom lands
by overwash of poor subsoil material, sand, and
gravel swept out of the hills; deterioration of soil
and its fertility, deterioration of crops grown
thereon, and declining acre yields despite develop-
ment of scientific processes for increasing such
yields; loss of soil and water which causes de-
struction of food and cover for wildlife; a blow-
ing and washing of soil into streams which silts
over spawning beds, and destroys water plants,
diminishing the food supply of fish; a diminishing
of the underground water reserve, which causes
water shortages, intensifies periods of drought,
and causes crop failures; an increase in the speed
and volume of rainfall run-off, causing severe and
increasing floods, which bring suffering, disease,
and death; impoverishment of families attempting
to farm eroding and eroded lands; damage to
roads, highways, railways, farm buildings, and
other property from floods and from dust storms;
and losses in navigation, hydro-electric power,
municipal water supply, drainage developments,
farming, and grazing.
C. The Appropriate Corrective Methods. — To
conserve soil resources and control and prevent
soil erosion, it is necessary that land-use practices
contributing to soil wastage and soil erosion be
17]
§ 7395(36)
SOIL CONSERVATION DISTRICTS
§ 7395(37)
discouraged and discontinued, and appropriate
soil-conserving land-use practices be adopted and
carried out, that among the procedures necessary
for widespread adoption, are the carrying on of
engineering operations such as the construction of
terraces, terrace outlets, check-dams, dikes, ponds,
ditches, and the like; the utilization of strip crop-
ping, lister furrowing, contour cultivating, and
contour furrowing; land irrigation; seeding and
planting of waste, sloping, abandoned, or eroded
lands to water-conserving and erosion-preventing
plants, trees, and grasses; forestation and refor-
estation; rotation of crops; soil stabilization with
trees, grasses, legumes, and other thick-growing,
soil-holding crops; the addition of soil amend-
ments; manurial materials, and fertilizers for the
correction of soil deficiencies and/or to promote
increased growth of soil-protecting crops; retarda-
tion of run-off by increasing the absorption of
rainfall; and retirement from cultivation of steep,
highly erosive areas and areas now badly gullied
or otherwise eroded.
D. Declaration of Policy.— It is hereby declared
to be the policy of the legislature to provide for
the conservation of the soil and soil resources of
this state, and for the control and prevention of
soil erosion, and thereby to preserve natural re-
sources, control floods, prevent impairment of
dams and reservoirs, assist in maintaining the
navigability of rivers and harbors, preserve wild-
life, protect the tax base, protect public lands, and
protect and promote the health, safety, and gen-
eral welfare of the people of this state. (1937, c.
393, s. 2.)
§ 7395(36). Definitions. — Wherever used or
referred to in this chapter, unless a different
meaning clearly appears from the context:
(1) "District" or "soil conservation district"
means a governmental subdivision of this state,
and a public body corporate and politic, organized
in accordance with the provisions of this chapter,
for the purposes, with the powers, and subject to
the restrictions hereinafter set forth.
(2) "Supervisor" means one of the members of
the governing body of a district, elected or ap-
pointed in accordance with the provisions of this
chapter.
(3) "Committee" or "state soil conservation
committee" means the agency created in section
7395(37).
(4) "Petition" means a petition filed under the
provisions of subsection A of section 7395(38) for
the creation of a district.
(5) "Nominating petition" means a petition filed
under the provisions of section 7395(39) to nomi-
nate candidates for the office of supervisor of a
soil conservation district.
(6) "State" means the state of North Carolina.
(7) "Agency of this state" includes the govern-
ment of this state and any subdivision, agency, or
instrumentality, corporate or otherwise, of the
government of the state.
(8) "United States" or "agencies of the United
States" includes the United States of America,
the soil conservation service of the United States
Department of Agriculture, and any other agency
or instrumentality, corporate or otherwise, of the
United States of America.
(9) "Government" or "governmental" includes
[ 218
the government of this state, the government of
the United States, and any subdivision, agency,
or instrumentality, corporate or otherwise, of ei-
ther of them.
(10) "Land occupier" or "occupier of land" in-
cludes any person, firm, or corporation who shall
hold title to, or shall have contracted to purchase
any lands lying within a district organized under
the provisions of this chapter.
(11) "A qualified voter" includes any person
qualified to vote in elections by the people under
the constitution of this state.
(12) "Due notice" means notice published at
least twice, with an interval of at least seven days
between the two publication dates, in a newspa-
per or other publication of general circulation
within the appropriate area, or if no such publi-
cation of general circulation be available, by post-
ing at a reasonable number of conspicuous places
within the appropriate area, such posting to in-
clude, where possible, posting at public places
where it may be customary to post notices con-
cerning county or municipal affairs generally. At
any hearing held pursuant to such notice, at the
time and place designated in such notice, adjourn-
ment may be made from time to time without the
necessity of renewing such notice for such ad-
journed dates. (1937, c. 393, s. 3.)
§ 7395(37). State soil conservation committee.
— A. There is hereby established to serve as an
agency of the state and to perform the functions
conferred upon it in this chapter, the state soil
conservation committee. The following shall
serve, ex-officios, as members of the committee:
The director of the state agricultural extension
service, the director of the state agricultural ex-
periment station, and the state forester. The
committee may invite the secretary of agriculture
of the United States of America to appoint one
person who is a resident of North Carolina to
serve with the above-mentioned members as a
member of the committee. The committee in co-
operation with the Land Grant College in the
state shall develop a program for soil conservation
and for other purposes as provided for in this,
chapter, and shall keep a record of its official ac-
tions, shall adopt a seal, which seal shall be ju-
dicially noticed, and may perform such acts, hold
such public hearings, and promulgate such rules
and regulations as may be necessary for the exe-
cution of its functions under this chapter.
B. The state soil conservation committee may
employ an administrative officer and such techni-
cal experts and such other agents and employees,
permanent and temporary, as it may require, and
shall determine their qualifications, duties and
compensation. The committee may call upon the
attorney general of the state for such legal serv-
ices as it may require; it shall have authority to
delegate to its chairman, to one or more of its
members, or to one or more agents or employees,
such powers and duties as it may deem proper.
It shall be supplied with suitable office accommo-
dations at the seat of the state government, and
shall be furnished with the necessary supplies and
equipment. Upon request of the committee, for
the purpose of carrying out any of its functions,
the supervising officer of any state agency, or of
any state institution of learning shall, insofar as
§ 7395(38)
SOIL CONSERVATION DISTRICTS
§ 7395(38)
may be possible under available appropriations,
and having due regard to the needs of the agency
to which the request is directed, assign or detail
to the committee members of the staff or person-
nel of such agency or institution of learning, and
make such special reports, surveys, or studies as
the committee may request.
C. The committee shall designate its chairman,
and may, from time to time, change such designa-
tion. A member of the committee shall hold of-
fice so long as he shall retain the office by virtue
of which he shall be serving on the committee.
A majority of the committee shall constitute a
quorum, and the concurrence of a majority of the
committee in any matter within their duties shall
be required for its determination. The chairman
and members of the committee shall receive no
compensation for their services on the committee,
but shall be entitled to expenses, including travel-
ing expenses, necessarily incurred in the discharge
of their duties on the committee. The committee
shall provide for the execution of surety bonds
for all employees and officers who shall be en-
trusted with funds or property, shall provide for
the keeping of a full and accurate record of all
proceedings and of all resolutions, regulations,
and orders issued or adopted; and shall provide
for an annual audit of the accounts of receipts
and disbursements.
D. In addition to the duties and powers here-
inafter conferred upon the state soil conservation
committee, it shall have the following duties and
powers:
(1) To offer such assistance as may be appro-
priate to the supervisors of soil conservation dis-
tricts, organized as provided hereinafter, in the
carrying out of any of their powers and programs.
(2) To keep the supervisors of each of the sev-
eral districts organized under the provisions of
this chapter informed of the activities and expe-
rience of all other districts organized hereunder,
and to facilitate an interchange of advice and ex-
perience between such districts and cooperation
between them.
(3) To coordinate the programs of the several
•soil conservation districts organized hereunder so
far as this may be done by advice and consulta-
tion.
(4) To secure the cooperation and assistance of
the United States and any of its agencies, and of
agencies of this state, in the work of such dis-
tricts.
(5) To disseminate information throughout the
state concerning the activities and programs of
the soil conservation districts organized hereun-
der, and to encourage the formation of such dis-
tricts in areas where their organization is desir-
able. (1937, c. 393, s. 4.)
§ 7395(38). Creation of soil conservation dis-
tricts.— A. Any twenty-five occupiers of land lying
within the limits of the territory proposed to be
organized into a district may file a petition with
the state soil conservation committee asking that
a soil conservation district be organized to func-
tion in the territory described in the petition. Such
petition shall set forth:
(1) The proposed name of said district.
(2) That there is need, in the interest of the
public health, safety, and welfare, for a soil con-
servation district to function in the territory de-
scribed in the petition.
(3) A description of the territory proposed to
be organized as a district, which description shall
not be required to he given by metes and bounds
or by legal subdivisions, but shall be deemed suffi-
cient if generally accurate.
(4) A request that the state soil conservation
committee duly define the boundaries for such dis-
tricts; that a referendum be held within the terri-
tory so defined on the question of the creation of
a soil conservation district in such territory; and
that the committee determine that such a district
be created.
Where more than one petition is filed covering
parts of the same territory, the state soil conserva-
tion committee may consolidate all or any such pe-
titions.
B. Within thirty days after such a petition has
been filed with the state soil conservation commit-
tee, it shall cause due notice to be given of a pro-
posed hearing upon the question of the desirability
and necessity, in the interest of the public health,
safety, and welfare, of the creation of such dis-
tricts upon the question of the appropriate bound-
aries to be assigned to such district, upon the pro-
priety of the petition and other proceedings taken
under this chapter, and upon all questions relevant
to such inquiries. All occupiers of land within the
limits of the territory described in the petition,
and of lands within any territory considered for
addition to such described territory, and all other
interested parties, shall have the right to attend
such hearings and to be heard. If it shall appear
upon the hearing that it may be desirable to in-
clude within the proposed district territory out-
side the area within which due notice of the hear-
ing has been given, the hearing shall be adjourned
and due notice of further hearing shall be given
throughout the entire area considered for inclusion
of the district, and such further hearing held.
After such hearing, if the committee shall deter-
mine, upon the facts presented at such hearing and
upon such other relevant facts and information as
may be available, that there is need, in the interest
of the public health, safety and welfare, for a soil
conservation district to function in the territory
considered at the hearing, it shall make and record
such determination, and shall define, by metes and
bounds or by legal subdivisions, the boundaries of
such district. In making such determination and
in defining such boundaries, the committee shall
give due weight and consideration to the topogra-
phy or the area considered and of the state, the
composition of soils therein, the distribution of
erosion, the prevailing land-use practices, the de-
sirability and necessity of including within the
boundaries the particular lands under considera-
tion and the benefits such lands may receive from
being included within such boundaries, the relation
of the proposed area to existing watersheds and
agricultural regions, and to other soil conservation
districts already organized or proposed for organi-
zation under the provisions of this chapter, and
such other physical, geographical and economic
factors as are relevant, having due regard to the
legislative determination set forth in section two
of this chapter. The territory to be included with-
in such boundaries need not be contiguous. If the
[219
§ 7395(38)
SOIL CONSERVATION DISTRICTS
§ 7395(38)
committee shall determine after such hearing,
after due consideration of the said relevant facts,
that there is no need for a soil conservation district
to function in the territory considered at the hear-
ing, it shall make and record such determination
and shall deny the petition. After six months shall
have expired from the date of the denial of any
such petition, subsequent petitions covering the
same or substantially the same territory may be
filed as aforesaid and new hearings held and de-
termined made thereon.
C. After the committee has made and recorded a
determination that there is need, in the interest of
the public health, safety and welfare for the organi-
zation of a district in a particular territory and
has defined the boundaries thereof, it shall con-
sider the question whether the operation of a dis-
trict within such boundaries with the powers con-
ferred upon soil conservation districts in this chap-
ter is administratively practicable and feasible. To
assist the committee in the determination of such
administrative practicability and feasibility, it shall
be the duty of the committee, within a reasonable
time after entry of the finding that there is need
for the organization of the proposed district and
the determination of the boundaries thereof, to
hold a referendum within the proposed district
upon the proposition of the creation of the district,
and to cause due notice of such referendum to be
given. The question shall be submitted by ballots
upon which the words "For creation of a soil con-
servation district of the lands below described and
lying in the county (ies) of , and
" and "Against creation of a soil conserva-
tion district of the lands below described and ly-
ing in the county (ies) of and "
shall appear with a square before each proposition
and a direction to insert an X mark in the square
before one or the other of said propositions as the
voter may favor or oppose creation of such dis-
trict. The ballot shall set forth the boundaries of
such proposed district as determined by the com-
mittee. All occupiers of land lying within the
boundaries of the territory, as determined by the
state soil conservation committee, shall be eligible
to vote in such referendum. Only such land oc-
cupiers shall be eligible to vote.
D. The committee shall pay all expenses for the
issuance of such notices and the conduct of such
hearings and referenda, and shall supervise the
conduct of such hearings and referenda. It shall
issue appropriate regulations governing the con-
duct of such hearings and referenda, and provid-
ing for the registration prior to the date of the
date of the referendum of all eligible voters, or
prescribing some other appropriate procedure for
the determination of those eligible as voters in
such referendum. No informality in the conduct
of such referendum or in any matters relating
thereto shall invalidate said referendum or the re-
sult thereof if notice thereof shall have been given
substantially as herein provided and said referen-
dum shall have been fairly conducted.
E. The committee shall publish the results of
such referendum and shall thereafter consider and
determine whether the operation of the district
within the defined boundaries is administratively
practicable and feasible. If the committee shall
determine that the operation of such district is not
administratively practicable and feasible, it shall
record such determination and deny the petition.
If the committee shall determine that the opera-
tion of such district is administratively practicable
and feasible, it shall record such manner herein-
after provided. In making such determination the
committee shall give due regard and weight to the
attitudes of the occupiers of lands lying within the
defined boundaries, the number of land occupiers
eligible to vote in such referendum who shall have
voted, the proportion of the votes cast in such ref-
erendum in favor of the creation of the district to
the total number of votes cast, the approximate
wealth and income of the land occupiers of the
proposed district, the probable expense of carry-
ing on erosion control operations within such dis-
trict, and such other economic and social factors
as may be relevant to such determination, having
due regard to the legislative determines set forth
in section two of this chapter; provided, however,
that the committee shall not have authority to de-
termine that the operations of the proposed district
within the defined boundaries is administratively
practicable and feasible unless at least a majority
of the votes cast in the referendum upon the prop-
osition of creation of the district shall have been
cast in favor of the creation of such district.
F. If the committee shall determine that the
operation of the proposed district within the de-
fined boundaries is administratively practicable
and feasible, it shall appoint two supervisors to
act, with the three supervisors elected as provided
hereinafter, as the governing body of the district.
Such districts shall be a governmental subdivision
of this state and a public body corporate and
politic, upon the taking of the following proceed-
ings:
The two appointed supervisors shall present to
the secretary of state an application signed by
them which shall set forth (and such application
need contain no detail other than the mere recit-
als) : (l) that a petition for the creation of the
district was filed with the state soil conservation
committee pursuant to the provisions of this chap-
ter, and that the proceedings specified in this chap-
ter were taken pursuant to such petition; that the
application is being filed in order to complete the
organization of the district as a governmental sub-
division and public body, corporate and politic
under this chapter; and that the committee has ap-
pointed them as supervisors; (2) the name and of-
ficial residence of each of the supervisors, together
with a certified copy of the appointment evidenc-
ing their right to office; (3) the term of office of
each of the supervisors; (4) the name which is
proposed for the district; and (5) the location of
the principal office of the supervisors of the dis-
trict. The application shall be subscribed and
sworn to by each of the said supervisors before an
officer authorized by the laws of this state to take
and certify oaths, who shall certify upon the ap-
plication that he personally knows the supervisors
and knows them to be the officers as affirmed in
the application, and that each has subscribed there-
to in the officer's presence. The application shall
be accompanied by a statement by the state soil
conservation committee, which shall certify (and
such statement need contain no detail other than
the mere recitals) that a petition was filed, notice
[ 220]
§ 7395(39)
SOIL CONSERVATION DISTRICTS
§ 7395(40)
issued, and hearing held as aforesaid, that the
committee did duly determine that there is need,
in the interest of the public health, safety and wel-
fare, for a soil conservation district to function in
the proposed territory and did define the bound-
aries thereof; that notice was given and a referen-
dum held on the question of the creation of such
•district, and that the result of such referendum
showed a majority of the votes cast in such refer-
endum to be in favor of the creation of the dis-
trict; that thereafter the committee did duly deter-
mine that the operation of the proposed district is
administratively practicable and feasible. The said
statement shall set forth the boundaries of the dis-
trict as they have been defined by the committee.
The secretary of state shall examine the applica-
tion and statement and, if he finds that the name
proposed for the district is not identical with that
of any other soil conservation district of this state
or so nearly similar as to lead to confusion or un-
certainty, he shall receive and file them and shall
record them in an appropriate book of record in
his office. If the secretary of state shall find that
the name proposed for the district is identical with
that of any other soil conservation district of this
state, or so nearly similar as to lead to confusion
and uncertainty, he shall certify such fact to the
state soil conservation committee, which shall
thereupon submit to the secretary of state a new
name for the said district, which shall not be sub-
ject to such defects. Upon receipt of such new
name, free of such defects, the secretary of state
shall record the application and statement, with
the name so modified, in an appropriate book of
record in his office. When the application and
statement have been made, filed and recorded, as
herein provided, the district shall constitute a gov-
ernmental subdivision of this state and a public
body corporate and politic. The secretary of state
shall make and issue to the said supervisors a cer-
tificate, under the seal of the state, of the due or-
ganization of the said district, and shall record
such certificate with the application and statement.
The boundaries of such district shall include the
territory as determined by the state soil conserva-
tion committee as aforesaid, but in no event shall
they include any area included within the bound-
aries of another soil conservation district organ-
ized under the provisions of this chapter.
G. After six months shall have expired from the
date of entry of a determination by the state soil
conservation committee that operation of a pro-
posed district is not administratively practicable
and feasible, and denial of a petition pursuant to
such determination, subsequent petitions may be
filed as aforesaid, and action taken thereon in ac-
cordance with the provisions of this chapter.
H. Petitions for including additional territory
within an existing district may be filed with the
state soil conservation committee, and the pro-
ceedings herein provided for in the case of peti-
tions to organize a district shall be observed in
the case of petitions for such inclusions. The
committee shall prescribe the form for such peti-
tions, which shall he as nearly as may be in the
form prescribed in this chapter for petitions to or-
ganize a district. Where the total number of land
occupiers in the area proposed for inclusion shall
be less than twenty-five, the petition may be filed
[ 22
when signed by two-thirds of the occupiers of such
area, and in such case no referendum need be held.
In referenda petitions for such inclusion, all occu-
piers of land lying within the proposed additional
area shall be eligible to vote.
I. In any suit, action or proceeding involving
the validity or enforcement of, or relating to any
contract, proceeding or action of the district, the
district shall be deemed to have been established
in accordance with the provisions of this chapter
upon proof of the issuance of the aforesaid certifi-
cate by the secretary of state. A copy of such cer-
tificate duly certified by the secretary of state
shall be admissible in evidence in any such suit,
action, or proceeding and shall be proof of the fil-
ing and contents thereof. (1937, c. 393, s. 5.)
§ 7395(39). Election of three supervisors for
each district. — Within thirty days after the date of
issuance by the secretary of state of a certificate
of organization of a soil conservation district,
nominating petitions may be filed with the state
soil conservation committee to nominate candi-
dates for supervisors of such district. The com-
mittee shall have authority to extend the time
within which nominating petitions may be filed.
No such nominating petitions shall be accepted by
the committee unless it shall be subscribed by
twenty-five or more qualified voters of such dis-
trict. Qualified voters may sign more than one
such nominating petition to nominate more than
one candidate for supervisor. The committee shall
give due notice of an election to be held for the
election of three supervisors for the district. The
names of all nominees on behalf of whom such
nominating petitions have been filed within the
time herein designated, shall appear, arranged in
the alphabetical order of the surnames, upon bal-
lots, with a square before each name and a direc-
tion to insert an X mark in the square before any
three names to indicate the voter's preference. All
qualified voters residing within the district shall
be eligible to vote in such election. The three
candidates who shall receive the largest number,
respectively, of the votes cast in such election shall
be elected supervisors for such district. The com-
mittee shall pay all the expenses of such election,
shall supervise the conduct thereof, shall prescribe
regulations governing the conduct of such election
and the determination of the eligibility of voters
therein, and shall publish the results thereof. (1937,
c. 393, s. G.)
§ 7395(40). Appointment, qualifications and ten-
ure of supervisors. — The governing body of the
district shall consist of five supervisors, elected or
appointed as provided hereinabove. The two su-
pervisors appointed by the committee shall be
persons who are by training and experience quali-
fied to perform the services which will be required
of them in the performance of their duties here-
under.
The supervisors shall designate a chairman and
may, from time to time, change such designation.
The term of office of each supervisor shall be three
years, except that the supervisors who are first ap-
pointed shall be designated to serve for terms of
one and two years, respectively, from the date of
their appointment. A supervisor shall hold office
until his successor has been elected or appointed
1]
§ 7395(41)
SOIL CONSERVATION DISTRICTS
§ 7395(41)
and has qualified. Vacancies shall be filled for the
unexpired term. The selection of successors to fill
an unexpired term, or for a full term, shall be
made in the manner in which the retiring super-
visors shall, respectively, have been selected. A
majority of the supervisors shall constitute a quo-
rum and the concurrence of a majority in any
matter within their duties shall be required for its
determination. A supervisor shall receive no com-
pensation for his services, but he shall be entitled
to expenses, including traveling expenses, neces-
sarily incurred in the discharge of his duties.
The supervisors may employ a secretary, tech-
nical experts, whose qualifications shall be ap-
proved by the state committee, and such other em-
ployees as they may require, and shall determine
their qualifications, duties and compensation. The
supervisors may call upon the attorney general of
the state for such legal services as they may re-
quire. The supervisors may delegate to their
chairman, to one or more supervisors, or to one or
more agents, or employees such powers and duties
as they may deem proper. The supervisors shall
furnish to the state soil conservation committee,
upon request, copies of such ordinances, rules,
regulations, orders, contracts, forms, and other
documents as they shall adopt or employ, and such
other information concerning their activities as it
may require in the performance of its duties under
this chapter.
The supervisors shall provide for the execution
of surety bonds for all employees and officers who
shall be entrusted with funds or property; shall
provide for the keeping of a full and accurate rec-
ord of all proceedings and of all resolutions, regu-
lations, and orders issued or adopted; and shall
provide for an annual audit of the accounts of re-
ceipts and disbursements. Any supervisor may
be removed by the state soil conservation commit-
tee upon notice and hearing, for neglect of duty,
incompetence or malfeasance in office, but for no
other reason.
The supervisors may invite the legislative body
of any municipality or county located near the ter-
ritory comprised within the district to designate a
representative to advise and consult with the su-
pervisors of the district on all questions of pro-
gram and policy which may affect the property,
water supply, or other interests of such municipal-
ity or county. (1937, c. 393, s. 7.)
§ 7395(41). Powers of districts and supervisors.
— A soil conservation district organized under the
provisions of this chapter shall constitute a gov-
ernmental subdivision of this state, and a public
body corporate and politic, exercising public pow-
ers, and such district, and the supervisors thereof,
shall have the following powers in addition to oth-
ers granted in other sections of this chapter:
(1) To carry out preventive and control meas-
ures within the district including, but not limited
to, engineering operations, methods of cultivation,
the growing vegetation, changes in use of land,
and the measures listed in subsection C of section
7395(3), on lands owned or controlled by this
state or any of its agencies, with the co-operation
of the agency administering and having jurisdic-
tion thereof, and on any other lands within the dis-
trict upon obtaining the consent of the occupier of
such lands or the necessary rights or interest in
such lands.
(2) To co-operate, or enter into agreements
with, and within the limits of appropriations duly
made available to it by law, to furnish financial or
other aid to, any agency, governmental or other-
wise, or any occupier of lands within the district,
in the carrying on of erosion-control and preven-
tion operations within the district, subject to such
conditions as the supervisors may deem necessary
to advance the purposes of this chapter.
(3) To obtain options upon and to acquire, by
purchase, exchange, lease, gift, grant, bequest, de-
vise, or otherwise, any property, real or personal,
or rights or interest therein; to maintain, adminis-
ter, and improve any properties acquired, to re-
ceive income from such properties and to expend
such income in carrying out the purposes and pro-
visions of this chapter; and to sell, lease, or other-
wise dispose of any of its property or interest
therein in furtherance of the purposes and the pro-
visions of this chapter.
(4) To make available, on such terms as it shall
prescribe, to land occupiers within the district, ag-
ricultural and engineering machinery and equip-
ment, fertilizer, seeds, and seedlings, and such
other material or equipment, as will assist such
land occupiers to carry on operations upon their
lands for the conservation of soil resources and
for the prevention and control of soil erosion.
(5) To construct, improve, and maintain such
structures as may be necessary or convenient for
the performance of any of the operations author-
ized in this chapter.
(6) To develop comprehensive plans for the
conservation of soil resources and for the control
and prevention of soil erosion within the district,
which plans shall specify in such detail as may be
possible, the acts, procedures, performances, and
avoidances which are necessary or desirable for
the effectuation of such plans, including the speci-
fication of engineering operations, methods of cul-
tivation, the growing of vegetation, cropping pro-
grams, tillage practices, and changes in use of
land; and to bring such plans and information to
the attention of occupiers of lands within the dis-
trict.
(7) To act as agent for the United States, or
any of its agencies, in connection with the acqui-
sition, construction, operation, or administration
of any soil conservation, erosion-control, or ero-
sion-prevention project within its boundaries; to
accept donations, gifts, and contributions in
money, services, materials, or otherwise, from the
United States or any of its agencies, or from this
state or any of its agencies, and to use or expend
such moneys, services, materials, or other contri-
butions in carrying on its operations, except that
all forest tree seedlings shall be obtained in so far
as available from the state forest nursery, operated
by the state, department of conservation and devel-
opment in co-operation with the United States de-
partment of agriculture.
(8) To sue and be sued in the name of the dis-
trict; to have a seal, which seal shall be judicially
noticed; to have perpetual succession unless ter-
minated as hereinafter provided; to make and exe-
cute contracts and other instruments, necessary
or convenient to the exercise of its powers; to
[ 222 ]
§ 7395(42)
SOIL CONSERVATION DISTRICTS
§ 7385(43)
make, and from time to time amend and repeal,
rules and regulations not inconsistent with this
chapter, to carry into effect its purposes and pow-
ers.
(9) As a condition to the extending of any ben-
efits under this chapter to, or the performance of
work upon, any lands not owned or controlled by
this state or any of its agencies, the supervisors
may require contributions in money, services, ma-
terials, or otherwise to any operations conferring
such benefits, and may require land occupiers to
enter into and perform such agreements or cove-
nants as to the permanent use of such lands as will
tend to prevent or control erosion thereon.
(10') No provisions with respect to the acquisi-
tion, operation, or disposition of property by other
public bodies shall be applicable to a district or-
ganized hereunder unless the legislature shall spe-
cifically so state. (1937, c. 393, s. 8.)
§ 7395(42). Adoption of land-use regulations.—
The supervisors of any district shall have author-
ity to formulate regulations governing the use of
lands within the district in the interest of conserv-
ing the soil and soil resources and preventing and
controlling soil erosion. The supervisors may
conduct such public meetings and public hearings
upon tentative regulations as may be necessary to
assist them in this work. The supervisors shall
not have authority to enact such land-use regula-
tions into law until after they shall have caused
due notice to be given of their intention to con-
duct a referendum for submission of such regula-
tions to the occupiers of lands lying within the
boundaries of the district of their indication of ap-
proval or disapproval of such proposed regula-
tions, and until after the supervisors have consid-
ered the result of such referendum. The proposed
regulations shall be embodied in a proposed ordi-
nance. Copies of such proposed ordinance shall
be available for the inspection of all eligible voters
during the period between publication of such no-
tice and the date of the referendum. The notices
of the referendum shall recite the contents of such
proposed ordinance, or shall state where copies of
such proposed ordinance may be examined. The
question shall be submitted by ballots, upon which
the words "For approval of proposed ordinance
number , prescribing land-use regulations
for conservation of soil and prevention of erosion"
and "Against approval of proposed ordinance num-
ber , prescribing land-use regulations for con-
servation of soil and prevention of erosion" shall
appear, with a square before each proposition and
a direction to insert an X mark in the square be-
fore one or the other of said propositions as the
voter may favor or oppose approval of such pro-
posed ordinance. The supervisors shall supervise
such referendum, shall prescribe appropriate regu-
lations, governing the conduct thereof, and shall
publish the result thereof. All occupiers of lands
within the district shall be eligible to vote in such
ferendum. Only such land occupiers shall be eligi-
ble to vote. No informalities in the conduct of
such referendum or in any matters relating there-
to shall invalidate said referendum or the result
thereof if notice thereof shall have been given sub-
stantially as herein provided and said referendum
shall have been fairly conducted.
The supervisors shall not have authority to en-
act such proposed ordinance into law unless at
least two-thirds of the votes cast in such referen-
dum shall have been cast for approval of the said
proposed ordinance. The approval of the pro-
posed ordinance by a two-thirds of the votes cast
in such referendum shall not be deemed to require
the supervisors to enact such proposed ordinance
into law. Land-use regulations prescribed in or-
dinances adopted pursuant to the provisions of
this section by the supervisors of any district shall
have the force and effect of law in the said district
and shall be binding and obligatory upon all occu-
piers of lands within such district.
Any occupier of land within such district may
at any time file a petition with the supervisors
asking that any or all of land-use regulations pre-
scribed in any ordinance adopted by the supervis-
ors under the provisions of this section shall be
amended, supplemented, or repealed. Land-use
regulations prescribed in any ordinance adopted
pursuant to the provisions of this section shall not
be amended, supplemented, or repealed except in
accordance with the procedure prescribed in this
section for adoption of land-use regulations. Ref-
erenda on adoption, amendment, supplementation,
or repeal of land-use regulations shall not be held
more often than once in six months.
The regulations to be adopted by the supervis-
ors under the provisions of this section may in-
clude:
1. Provisions, requiring the carrying out of nec-
essary engineering operations, including the con-
struction of terraces, terrace outlets, check dams,
dikes, ponds, ditches, and other necessary struc-
tures.
2. Provisions requiring observance of particular
methods of cultivation including contour cultivat-
ing, contour furrowing, lister furrowing, sowing,
planting, strip cropping, seeding, and planting of
lands to water-conserving and erosion-preventing
plants, trees and grasses, forestation, and refor-
estation.
3. Specifications of cropping programs and til-
lage practices to be observed.
4. Provisions requiring the retirement from cul-
tivation of highly erosive areas or of areas on
which erosion may not be adequately controlled if
cultivation is carried on.
5. Provisions for such other means, measures,
operations, and programs as may assist conserva-
tion of soil resources and prevent or control soil
erosion in the district, having due regard to the
legislative findings set forth in section 7395(35).
The regulations shall be uniform, throughout
the territory comprised within the district except
that the supervisors may classify the lands within
the district with reference to such factors as soil
type, degree of slope, degree of erosion threatened
or existing, cropping and tillage practices in use,
and other relevant factors, and may provide regu-
lations varying with the type or class of land af-
fected, but uniform as to all lands within each
class or type. Copies of land-use regulations
adopted under the provisions of this section shall
be printed and made available to all occupiers of
lands lying within the district. (1937, c. 393, s. 9.)
§ 7395(43). Enforcement of land-use regulations.
— The supervisors shall have authority to go upon
any lands within the district to determine whether
[ 223 ]
§ 7395(44)
SOIL CONSERVATION DISTRICTS
§ 7395(46)
land-use regulations adopted under the provisions
of section 7395(42) are being observed. The su-
pervisors are further authorized to provide by or-
dinance that any land occupier who shall sustain
damages from any violation of such regulations
by any other land occupier may recover damages
at law from such other land occupier for such vio-
lation. (1937, c. 393, s. 10.)
§ 7395(44). Performance of work under the reg-
ulations by the supervisors. — Where the supervis-
ors of any district shall find that any of the pro-
visions of land-use regulations prescribed in an
ordinance adopted in accordance with the provi-
sions of section 7396(42) are not being observed
on particular lands, and that such non-observance
tends to increase erosion on such lands and is in-
terfering with the prevention of control of erosion
on other lands within the district, the supervisors
may present to the superior court for the county
or counties within which the lands of the defend-
ant lie a petition, duly verified, setting forth the
adoption of the ordinance prescribing land-use
regulations, the failure of the defendant land oc-
cupier to observe such regulations, and to perform
particular work, operations, or avoidances as re-
quired thereby, and that such non-observance
tends to increase erosion on such lands and is in-
terfering with the prevention or control of erosion
on other lands within the district, and praying the
court to require the defendant to perform the
work, operations, or avoidances within a reason-
able time and to order that if the defendant shall
fail so to perform, the supervisors may go on the
land, perform the work or other operations or
otherwise bring the condition of such lands into
conformity with the requirements of such regula-
tions, and recover the costs and expenses thereof,
with interest, from the occupier of such land. Up-
on the presentation of such petition, the court shall
cause process to be issued against the defendant,
and shall hear the case. If it appear to the court
that testimony is necessary for the proper dispo-
sition of the matter, it may take evidence, or ap-
point a referee to take such evidence as it may di-
rect and report the same to the court with his
findings of fact and conclusions of law, which shall
constitute a part of the proceedings upon which
the determination of the court shall be made. The
court may dismiss the petition, or it may require
the defendant to perform the work, operations, or
avoidances, and may provide that upon the failure
of the defendant to initiate such performance
within the time specified in the order of the court,
and to' prosecute the same to completion with rea-
sonable diligence, the supervisors may enter upon
the lands involved and perform the work or op-
erations or otherwise bring the condition of such
lands into conformity with the requirements of the
regulations and recover the costs and expenses
thereof, with interest at the rate of five per cen-
tum per annum, from the occupier of such lands.
The court shall retain jurisdiction of the case
until after the work has been completed. Upon
completion of such work pursuant to such order
of the court the supervisors may file a petition
with the court, a copy of which shall be served
upon the defendant in the case, stating the costs
and expenses sustained by them in the perform-
ance of the work and praying judgment therefor
with interest. The court shall have jurisdiction to
enter judgment for the amount of such costs and
expenses, with interest at the rate of five per cen-
tum per annum until paid, together with the costs
of suit, including a reasonable attorney's fee to be
fixed by the court. This judgment, when filed in
accordance with the provisions of section six hun-
dred fourteen of the Code, shall constitute a lien
upon such lands. (1937, c. 393, s. 11.)
§ 7395 (45); Co-operation between districts. —
The supervisors of any two or more districts or-
ganized under the provisions of this chapter may
co-operate with one another in the exercise of
any or all powers conferred in this chapter. (1937,
c. 393, s. 12.)
§ 7395(46). Discontinuance of districts. — At
any time after five years after the organization of
a district under the provisions of this chapter, any
twenty-five occupiers of land lying within the
boundaries of such districts may file a petition
with the state soil conservation committee pray-
ing that the operations of the district be termi-
nated and the existence of the district discontin-
ued. The committee may conduct such public
meetings and public hearings upon such petition
as may be necessary to assist it in the considera-
tion thereof. Within sixty days after such a peti-
tion has been received by the committee it shall
give due notice of the holding of a referendum,
and shall supervise such referendum, and issue ap-
propriate regulations governing the conduct there-
of, the question to be submitted by ballots upon
which the words "For terminating the existence
of the (name of the soil conservation dis-
trict to be here inserted)" and "Against terminat-
ing the existence of the (name of the soil
conservation district to be here inserted)" shall
appear with a square before each proposition and
a direction to insert an X mark in the square be-
fore one or the other of said propositions as the
voter may favor or oppose discontinuance of such
district. All occupiers of lands lying within the
boundaries of the district shall be eligible to vote
in such referendum. Only such land occupiers
shall be eligible to- vote. No informalities in the
conduct of such referendum or in any matters re-
lating thereto shall invalidate said referendum or
the result thereof if notice thereof shall have been
given substantially as herein provided and said
referendum shall have been fairly conducted.
The committee shall publish the result of such
referendum and shall thereafter consider and de-
termine whether the continued operation of the
district within the defined boundaries is adminis-
tratively practicable and feasible. If the commit-
tee shall determine that the continued operation
of such district is administratively practicable and
feasible, it shall record such determination and
deny the petition. If the committee shall deter-
mine that the continued operation of such district
is not administratively practicable and feasible,
it shall record such determination and shall certify
such determination to> the supervisors of the dis-
trict. In making such determination the commit-
tee shall give due regard and weight to the atti-
tudes of the occupiers of lands lying within the
district, the number of land occupiers eligible to
vote in such referendum who shall have voted, the
[224 ]
§ 7472(j)
STATE DEBT
§ 7472(yyl)
proportion of the votes cast in such referendum
in favor of the discontinuance of the district to the
total number of votes cast, the approximate wealth
and income of the land occupiers of the district,
the probable expense of carrying on erosion con-
trol operations within such district, and such other
economic and social factors as may be relevant to
such determination, having due regard to the
legislative findings set forth in section 7395(35):
Provided, however, that the committee shall not
have authority to determine that the continued
operation of the district is administratively practi-
cable and feasible unless at least a majority of the
votes cast in the referendum shall have been cast
in favor of the continuance of such district.
Upon receipt from the state soil conservation
committee of a certification that the committee
has determined that the continued operation of the
district is not administratively practicable and
feasible, pursuant to the provisions of this section,
the supervisors shall forthwith proceed to termi-
nate the affairs of the district. The supervisors
shall dispose of all property belonging to the dis-
trict at public auction and shall pay over the pro-
ceeds of such sale to be covered into the state
treasury. The supervisors shall thereupon file an
application, duly verified, with the secretary of
state for the discontinuance of such district, and
shall transmit with such application the certificates
of the state soil conservation committee setting
forth the determination of the committee that the
continued operation of such district is not admin-
istratively practicable and feasible. The applica-
tion shall recite that the property of the district
has been disposed of and the proceeds paid over
as in this section provided, and shall set forth a
full accounting of such properties and proceeds
of the sale. The secretary of state shall issue to
the supervisors a certificate of dissolution and
shall record such certificate in an appropriate book
of record in his office.
Upon issuance of a certificate of dissolution un-
der the provisions of this section, all ordinances
and regulations theretofore adopted and in force
within such districts shall be of no further force
and effect. All contracts theretofore entered into,
to which the district or supervisors are parties,
shall remain in force and effect for the period pro-
vided in such contracts. The state soil conserva-
tion committee shall be substituted for the district
or supervisors as party to such contracts. The
committee shall be entitled to all benefits and sub-
ject to all liabilities under such contracts and shall
have the same right and liability to perform, to
require performance, to sue and be sued thereon,
and to modify or terminate such contracts by mu-
tual consent or otherwise as the supervisors of the
district would have had. Such dissolution shall
not affect the lien of any judgment entered under
the provisions of section 7395(35), nor the pend-
ency of any action instituted under the provisions
of such section, and the committee shall succeed
to all the rights and obligations of the district or
supervisors as to such liens and actions.
The state soil conservation committee shall not
entertain petitions for the discontinuance of any
district nor conduct referenda upon such petitions,
nor make determinations pursuant to such peti-
tions, in accordance with the provisions of this
chapter, more often than once in five years. (1937,
c. 393, s. 13.)
CHAPTER 125
STATE DEBT
Art. 11. Bonds for Permanent Enlargement and
Improvement of Educational and Charitable
Institutions. 1923 and Subsequently
§ 7472(j). Purpose of bond issue; amount and
dates of issue.
Editor's Note.— For act authorizing bonds for permanent
improvement of state institutions, see Public L,aws 1937,
c. 296.
Art. 11(A). Sinking Fund Commission
§ 7472(q)4. Investment of sinking funds, —
(e) Obligations of the state highway and pub-
lic works commission, issued under the provisions
of section six of chapter one hundred and forty-five
of the Public Laws of one thousand nine hundred
and thirty-one [§ 3846(o2)]: Provided, that the
agreed purchase price of such contract shall first
be applied to the satisfaction of any obligations the
payee county may be due the state or the literary
fund or the revolving fund, and the balance, if any,
of the purchase price of the said contract shall
then be applied to the debt service of such county.
(1925, c. 62, s. 5; 1931, c. 415; 1935, c. 146; 1937,
c. 82.)
Editor's Note. — The 1937 amendment directed that the
above subsection be added at the end of this section. The
rest of the section, not being affected by the amendment, is
not set out.
Art. 16. Special Building Fund to Aid Counties in
Erection of Schoolhouses
§ 7472 (yyl). Payment of loans before maturity;
relending. — For the purpose of providing funds to
be loaned to the counties of the state for erecting
school buildings and providing facilities for main-
taining six months school term, the state board of
education is authorized to accept payment from
any district and/or county for the full amount of
loans due the state on loans from the special build-
ing funds of one thousand nine hundred twenty-
one, one thousand nine hundred twenty-three, one
thousand nine hundred twenty-five and one thou-
sand nine hundred twenty-seven before the matu-
rity of such loans.
The state board of education is authorized to
relend any payments made by counties to counties
tor the period that the loans would have run had
they not been paid before maturity, and at the
same rate of interest.
The state board of education shall follow the
laws, rules and regulations set up for making loans
from the special building funds of one thousand
nine hundred twenty-one, one thousand nine hun-
dred twenty-three, one thousand nine hundred
twenty-five and one thousand nine hundred twenty-
seven in lending money made available by the pay-
ment of loans from the said funds before the ma-
turity date thereof.
In making loans from funds made available from
payments on the special building funds before ma-
turity, the state board of education shall be gov-
erned by laws and amendments to the constitution
enlarging or restricting the borrowing power of
N. C. Supp. — 15
[ 225
§ 7516(e)
STATE DEPARTMENTS, ETC.
§ 7534(5a)
counties and/or municipalities. (1937, c. 115, ss.
1-4.)
CHAPTER 126
STATE DEPARTMENTS, INSTITUTIONS,
AND COMMISSIONS
Art. 5(B). Transportation Advisory Commission
§ 7516(e). Commission created.
As to abolition of commission, see § 1112(fl).
Art. 9. State Building Contracts
§ 7534(0)1. Competitive bids required before
letting public construction contracts. —
No proposal shall be considered or accepted by
said board or governing body unless at the time of
its filing the same shall be accompanied by a de-
posit with said board or governing body of cash
or a certified check on some bank or trust company
authorized to do business in this state, in an
amount equal to not less than two (2%) per cent
of the proposal; said deposit to be retained in the
event of failure of the successful bidder to execute
the contract within ten days after the award or
to give satisfactory surety as required herein.
(1937, c. 355.)
Editor's Note.— The 1937 amendment changed the fifth
sentence relating to deposit to accompany proposal. The
rest of the section, not being affected by the amendment, is
cot set out here.
Art. 11. State Fair
§ 7534 (u). Land set apart.
Editor's Note. — For act providing for repossession by state
of portion of land set apart by this section, see Public Acts
1937, c. 44.
Art. 12A. Commissi >n to Examine Public Educa-
tional System
§ 7534 (cc). Governor directed to appoint com-
mission; powers and duties. — As soon as may be
practicable after the ratification of this article, the
governor is directed to appoint a commission con-
sisting of not less than seven and not more than
nine, the number to be within his discretion, con-
sisting of persons qualified by education, experi-
ence, and training, both laymen and educators, to
make a thorough examination of the public educa-
tional system of this state, its practical workings,
its organization and direction, and the results ob-
tained in the instruction and education of youth
and fitting and training them for life.
The said commission is clothed with power to
examine into any branches of the subject, and of
allied subjects or interests in relation thereto, that
may enable it to arrive at a satisfactory conclusion
respecting the said system and its operation and
improvements which may be effected therein. It
is authorized and directed to examine into the vari-
ous laws providing machinery and procedure for
the administration of the schools, the control and
supervision thereof, methods employed in dealing
v/ith the officers and agencies through which school
funds are distributed, and with those actually teach-
ing in the schools; shall examine the curriculum
or courses of study established in the said schools,
with a view to ascertaining whether or not the
course of education and training is adequate or
advisable and productive of the best results for the
youth of the state. The commission shall make
diligent inquiry with respect to the courses now
taught and the extent to which training is given,
with relation both to the desirability of extending
the principle of vocational training in the high
schools of the state, and giving an opportunity for
more extensive training therein to those who do
not desire to pursue their studies in the institutions
for higher learning. It shall also make a thorough
study with regard to the adequacy of the prepara-
tion now obtainable in the public high schools of
the state for entrance into colleges and successful
prosecution of studies therein, and the facilities and
opportunities for further prosecution of such
studies in said colleges. (1937, c. 379, s. 1.)
§ 7534(dd). Governor, ex officio chairman; pub-
lic hearings; co-operation of state departments;
services of educational authorities. — The governor
shall be ex officio chairman of the commission
hereby created, with power to call said commission
together at any time he deems it advisable for the
purpose of organization and further investigation
of the subjects herein mentioned. They may sit
in public hearings, invite to the said hearings per-
sons of experience in the subject of the investiga-
tion and others whose suggestions may be helpful,
and may receive both written and oral presenta-
tions upon these subjects.
The executive heads for all state departments
and institutions are instructed to co-operate with
the commission and to make available to the com-
mission the services of such of their personnel as
may, in the judgment of the governor, be helpful
to the commission.
The commission is further authorized to accept
the time and services of any federal or state edu-
cational authorities or agencies, within or without
the state of North Carolina, when, in the opinion
of the commission, such services may be helpful
in the investigation. (1937, c. 379, s. 2.)
§ 7534(ee). Payment of expenses. — The ex-
penses necessary for the conduct of the said in-
vestigation, and the payment of expenses to the
members of the commission, shall be paid out of
the contingency and emergency fund provided in
the Appropriation Act of one thousand nine hun-
dred thirty-seven. (1937, c. 379, s. 3.)
§ 7534(ff). Written report to general assembly.
— The commission is required to make a written
report of its investigation, with its conclusions
and recommendations, to the general assembly of
one thousand nine hundred thirty-nine, and shall
have the same printed and ready for distribution
thirty days before the beginning of the one thou-
sand nine hundred thirty-nine session. (1937, c.
379, s. 4.)
Art. 13. Commission to Study Control of Alco-
holic Beverages
§ 7534(1). Governor directed to appoint spe-
cial commission; report to general assembly.
Editor's Note. — As to joint resolution extending time for
filing report, etc., see Public Acts 1936, Ex. Sess., p. 32.
Art. 14. State Planning Board
§§ 7534(3) -7534(5): Superseded by Public Laws
1937, c. 345, codified as §§ 7534(5a)-7534(5h).
§ 7534(5a). Board established as an advisory
agency of state. — The state planning board, as
[ 226
§ 7534(5b)
STATE DEPARTMENTS, ETC.
§ 7534(6)
provided for by chapter four hundred eighty-eight
of the Public Laws of one thousand nine hundred
thirty-five [§§ 7534(3)-7534(5)] is hereby estab-
lished as an advisory agency of the state, under
the direction of the governor and as more fully
set forth hereinafter. (1937, c. 345, s. 1.)
§ 7534(5b). Membership; terms of office; ex-
penses.— The state planning board shall consist of
nine members, appointed by the governor, as fol-
lows: Five members to be chosen from state offi-
cers or heads of departments of boards, one of
whom shall be the director of the department of
conservation and development; at least one repre-
sentative from the University of North Carolina,
and the remaining members to be chosen from
among the other citizens of the state. The mem-
bers of the board shall hold office during the
pleasure of the governor, and all vacancies shall
be filled by the governor, when and as they may
occur. The members of the said board shall
serve without pay, but they shall be allowed such
reasonable expenses as are authorized by the
board and incurred in the immediate discharge of
their duties, to be paid out of such funds as may
be available. (1937, c. 345, s. 2.)
§ 7534 (5c). Chairman and secretary; rules and
regulations; employees; expenditures; office space
and equipment; special surveys and studies. — The
governor shall appoint one member of the board
to serve as chairman. The board shall elect one
member to serve as secretary of the board. The
board shall adopt such rules as it may deem
proper for the transaction of its business, and
shall keep a record of its resolutions, transactions,
findings and determinations, which record shall
ibe a public record. The board may appoint such
employees as it may deem necessa^ for its work
and fix their compensations. The board may also
contract with individuals or corporations for such
special services as the board may require. The
expenditures of the board from funds of the state
shall be limited to the amounts appropriated by
the general assembly for the specific purpose, or
amounts appropriated from the emergency fund.
The board shall be supplied with necessary office
space and necessary equipment. Upon request of
the board, the governor may, from time to time,
for the purpose of special surveys or studies un-
der the direction of the board, assign or detail to
the board any member of any state department
or bureau or agency, or may direct any such de-
partment, bureau or agency to make special sur-
veys and studies as requested by the state plan-
ning board. (1937, c. 345, s. 3.)
§ 7534(5d). Functions of board. — It shall be
the function and duty of the state planning board
to make studies of any matters relating to the
general development of state or regions within
the state or areas of which the state is a part,
with the general purpose of guiding and accom-
plishing a co-ordinated, adjusted, and efficient
development of the state. Upon the basis of such
studies, and in accordance with the present and
future needs and resources, the board shall pre-
sent, from time to time, reports, plans, maps,
charts, descriptive matter and recommendation re-
lating to such conservation, wise use and planned
development of the material and human resources
of North Carolina as will best promote the health,
safety, morals, order, convenience, prosperity and
welfare of the people of the state. (1937, c. 345,
s. 4.)
§ 7534(5e). Adoption of plans and recommen-
dations; publicity program; co-operation with
other agencies; advice and information relative to
state planning; proposed legislation. — The state
planning board may, from time to time, adopt, in
whole or in part, such plans and recommendations
as, in its judgment, may be deemed wise and
proper; and may, from time to time, alter, amend
and add to such plans; may, in the interest of
promoting understanding of and compliance with
their recommendations, publish and distribute
such plans and recommendations and may employ
such means of publicity and education as it may
determine; may confer and co-operate with other
agencies, federal, state, regional, county or mu-
nicipal in the accomplishment of common pur-
poses; may, upon request or at its own initiative,,
furnish advice or information to the governor, the
general assembly, state, county, and municipal of-
ficers or departments on matters relating to state
planning; and may prepare and submit drafts of
legislation for the carrying out of any plans they
may adopt. (1937, c. 345, s. 5.)
§ 7534(5f). Public boards and officials directed
to supply information; general powers. — All pub-
lic boards and officials shall, upon request, furnish
to the state planning board such available infor-
mation as it may require for its work. In general,
the board shall have such powers as may be ap-
propriate, to enable it to fulfill its functions and
duties, to promote state planning and to carry out
the purposes of this article. (1937, c. 345, s. 6.)
Editor's Note.— This section would seem to imply the
power to make rules and regulations necessary for the pur-
poses of the statute. 15 N. C. Law Rev., No. 4, p. 323.
§ 7534(5g). Acceptance and disbursements of
contributions. — The state planning board is au-
thorized, in the name of the state, to accept and
disburse, under the approval of the director of the
budget, any contributions that may be available
for the work in which it is engaged, by any state
or federal agency or private or public endowment.
(1937, c. 345, s. 7.)
§ 7534 (5h). Appropriation; approval of ex-
penditures,— There is hereby appropriated a maxi-
mum sum of seventy-five hundred dollars ($7,500-
.00) out of the general fund revenues of the state,
to be used as may be necessary, subject to the
approval of the director of the budget, to carry
out the purpose of this article, and that such ap-
propriations shall be subject to the same control
by the budget bureau as provided for other state
appropriations. (1937, c. 345, s. 8.)
Art. 15. Revenue Bonds and Governmental Aid
§ 7534(6). State agencies may issue bonds to
finance certain public undertakings. —
Provided, further, that no state department, in-
stitution, agency or commission of the state shall
make application for or issue any bonds, as pro-
vided in this section, after June first, one thou-
sand nine hundred thirty-nine. (1935, c. 479, s. 1;
Ex. Sess., 1936, c. 2, s. 1; 1937, c 323.)
Editor's Note.— Prior to the amendment of 1936 the date
in the last proviso was December 31, 1936. The rest of the
section, not being affected by the amendments, is not set out
[ 227
§ 7534(8)
STATE DEPARTMENTS, ETC.
§ 7534(12)
here. Section 3 of the amendatory act ratified certain bonds
issued by the University of North Carolina.
§ 7534(8). Approval by governor and council
of state necessary; covenants in resolutions au-
thorizing bonds. —
Any resolution or resolutions heretofore or
hereafter adopted authorizing the issuance of
bonds under this article may contain covenants
which shall have the force of contract so long as
any of said bonds and interest thereon remain
outstanding and unpaid as to (a) the use and dis-
position of revenue of the undertaking for which
the said bonds are to be issued, (b) the pledging
of all the gross receipts or any part thereof de-
rived from the operation of the undertaking to the
payment of the principal and interest of said
bonds including reserves therefor, (c) the opera-
tion and maintenance of such undertaking, (d) the
insurance to be carried thereon and the use and
disposition of the insurance moneys, (e) the fix-
ing and collection of rates, fees and charges for
the services, facilities and commodities furnished
by such undertaking sufficient to pay said bonds.
and interest as the same shall become due, and
for the creation and maintenance of reasonable
reserve therefor, (f) provisions that the undertak-
ing shall not be conveyed, leased or mortgaged
so long as any of the bonds and interest thereon
remain outstanding and unpaid: Provided, how-
ever, that the credit of the state of North Caro-
lina or any of its departments, institutions,
agencies or commissions shall not be pledged to
the payment of such bonds except with respect
to the rentals, profits and proceeds received in
connection with the undertaking for which the
said bonds are issued, and that none of the ap-
propriations received from the state shall be
pledged as security for said bends. (1935, c. 479,
s. 3; Ex. Sess., 1936, c. 2, s. 2.)
Editor's Note. — The 1936 amendment added the above par-
agraph. The rest of the section, not being- affected by the
amendment, is not set out here.
Art. 16. State Bureau of Identification and In-
vestigation
§ 7534(9). Governor authorized to create state
bureau of identification and investigation; general
duties. — In order to secure a more effective ad-
ministration of the criminal laws of the state, to
prevent crime, and to procure the speedy appre-
hension and identification of criminals, the gover-
nor is hereby authorized, in his discretion, to cre-
ate in his office a state bureau of identification and
investigation, which shall be under the supervi-
sion and control of the governor. It shall be
charged with the performance of the duties here-
inafter set out, and particularly have charge of
and administer the agencies and activities herein
set up for the identification of criminals, for their
apprehension for the scientific analysis of evi-
dence of crime, and investigation and preparation
of evidence to be used in criminal courts; and the
said bureau shall have charge of investigation of
criminal matters herein especially mentioned, and
of such other crimes and criminal procedure as
the governor may direct. (1937, c. 349, s. 1.)
For article discussing this article, see 15 N. C. Law
Rev., No. 4, p. 341.
§ 7534(10). Governor authorized to transfer
activities of present identification bureau to the
new bureau; photographing and finger printing
records. — The records and equipment of the iden-
tification bureau now established at Central Pris-
on shall be made available to the said bureau of
identification and investigation, and the activities
of the identification bureau now established at
Central Prison may, in the future, if the governor
deem advisable, be carried on by the bureau here-
by established; except that the bureau established
by this article shall have authority to make rules
and regulations whereby the photographing and
finger printing of persons confined in the Central
Prison, or clearing through the Central Prison, or
sentenced by any of the courts of this state to
service upon the roads, may be taken and filed
with the bureau. (1937, c. 349, s. 2.)
As to bureau at Central Prison, see §§ 7766(b) -7766(i) of
original Code.
§ 7534(11). Crime statistics.— The bureau of
identification and investigation shall keep sta-
tistics, as far as possible, on all convictions of
crime in this state, and for this purpose all courts
having final jurisdiction, including superior courts
and inferior courts, but excepting courts of jus-
tices of the peace, shall, each month, transmit to
the bureau a record of all convictions had in such
court for the preceding month, in such manner
and form as shall be devised by the director of the
bureau, acting under the supervision of the gov-
ernor. All criminal returns and statistics hereto-
fore made to the office of the attorney general
shall be made to the said bureau, and this require-
ment shall replace such requirements as are now
made by law for the forwarding of such returns
to the office of the attorney general. Such rec-
ords shall be at all times open to the inspection
of the attorney general and his agents, and sum-
marized and tabulated statements thereof, such as
are now made in the office of the attorney general
and included in his biennial report, shall be fur-
nished to the attorney general for inclusion in the
said report. The clerks of the various courts re-
ferred to shall make the said returns under the
same pains and penalties as now prescribed by
law requiring such returns to be made to the of-
fice of the attorney general. Where there is no
clerk of the court by whom such reports can be
made, it shall be the duty of the judge of the
court, except courts of justices of the peace hav-
ing final jurisdiction of criminal cases, to make
returns thereof, as provided in this section. (1937,
c. 349, s. 3.)
§ 7534(12). Director of the bureau; personnel.
— The governor is empowered to appoint a direc-
tor of the bureau of identification and investiga-
tion, who shall serve at the will of the governor,
and whose salary shall be such as may be estab-
lished and fixed under the provisions of chapter
two hundred seventy-seven, Public Laws of one
thousand nine hundred thirty-one, as amended [§
752l(m) et seq.]. He is further empowered to
appoint a sufficient number of assistants and
stenographic and clerical help, who shall be com-
petent and qualified to do the work of the bureau.
The salaries of such assistants shall be established
and fixed under the provisions of chapter two
hundred seventy-seven, Public Laws of one thou-
sand nine hundred thirty-one, as amended. The
salaries of clerical and stenographic help shall be
[ 228 ]
§ 7534(13)
STATE DEPARTMENTS, ETC.
§ 7534(17)
the same as now provided for similar employees
in other state departments and bureaus. (1937, c.
349, s. 4.)
§ 7534(13). General powers and duties of di-
rector and assistants. — The director of the bureau
and his assistants are given the same power of
arrests as is now vested in the sheriffs of the sev-
eral counties, and their jurisdiction shall be state-
wide. The director of the bureau and his assist-
ants shall, at the request of the governor, give as-
sistance to sheriffs, police officers, solicitors, and
judges when called upon by them and so directed.
They shall also give assistance, when requested,
to the office of the commissioner of paroles in the
investigation of cases pending before the parole
office and of complaints lodged against parolees,
when so directed by the governor. (1937, c. 349,
s. 5.)
§ 7534(14). Investigations of lynchings, elec-
tion frauds, etc.; services subject to call of gov-
ernor; witness fees and mileage for director and
assistants. — The bureau shall, through its director
and upon request of the governor, investigate and
prepare evidence in the event of any lynching or
mob violence in the state; shall investigate all
cases arising from frauds in connection with elec-
tions when requested to do so by the board of
elections, and when so directed by the governor.
Such investigation, however, shall in no wise in-
terfere with the power of the attorney general to
make such investigation as he is authorized to
make under the laws of the state. The bureau is
authorized further, at the request of the governor,
to investigate cases of frauds arising under the
Social Security Laws of the state, of violations of
the gaming laws, and lottery laws, and matters of
similar kind when called upon by the governor so
to do. In all such cases it shall be the duty of the
department to keep such records as may be nec-
essary and to prepare evidence in the cases in-
vestigated, for the use of enforcement officers and
for the trial of causes. The services of the direc-
tor of the bureau, and of his assistants, may be
required by the governor in connection with the
investigation of any crime committed anywhere
in the state, when called upon by the enforcement
officers of the state, and when, in the judgment
of the governor, such services may be rendered
with advantage to the enforcement of the criminal
law.
In all cases where the cost is assessed against
the defendant and paid by him, there shall be as-
sessed in the bill of cost, mileage and witness fees
to the director and any of his assistants who are
witnesses in cases arising in courts of this state.
The fees so assessed, charged and collected shall
[be forwarded by the clerks of the court to the
treasurer of the state of North Carolina, and there
credited to the bureau of identification and inves-
tigation fund. (1937, c. 349, s. 6.)
§ 7534(15). Laboratory and clinical facilities;
employment of criminologists; services of scien-
tist, etc., employed by state; radio system. — In
the said bureau there shall be provided laboratory
facilities for the analysis of evidences of crime,
including the determination of presence, quantity
and character of poisons, the character of blood-
stains, microscopic and other examination mate-
rial associated with the commission of crime, ex-
[ 229
animation and analysis of projectiles of ballistic
imprints and records which might lead to the de-
termination or identification of criminals, the ex-
amination and identification of fingerprints, and
other evidence leading to the identification, appre-
hension, or conviction of criminals. A sufficient
number of persons skilled in such matters shall
be employed to render a reasonable service to the
prosecuting officers of the state in the discharge
of their duties. In the personnel of the bureau
shall be included a sufficient number of persons
of training and skill in the investigation of crime
and in the preparation of evidence as to be of
service to local enforcement officers, under the di-
rection of the governor, in criminal matters of
major importance.
The laboratory and clinical facilities of the in-
stitutions of the state, both educational and de-
partmental, shall be made available to the bureau,
and scientists and doctors now working for the
state through its institutions and departments
may be called upon by the governor to aid the
bureau in the evaluation, preparation, and preser-
vation of evidence in which scientific methods are
employed, and a reasonable fee may be allowed
by the governor for such service.
The state radio system shall be made available
to the bureau for use in its work. (1937, c. 349,
s. 7.)
§ 7534(16). Co-operation of local enforcement
officers. — All local enforcement officers are here-
by required to co-operate with the said bureau, its
officers and agents, as far as may be possible, in
aid of such investigations and arrest and appre-
hension of criminals as the outcome thereof.
(1937, c. 349, s. 8.)
§ 7534(17). Assessment of additional costs up-
on conviction; officers' benefit fund; bureau fund.
— In every criminal case finally disposed of in the
criminal courts, excepting courts of justices of the
peace, of this state, wherein the defendant is
found guilty and assessed with the payment of
costs, there shall be assessed against said con-
victed person one dollar ($1.00) additional cost,
to be collected and paid over to the treasurer of
North Carolina in a special fund for the purposes
of this article. The local custodian of such cost
shall monthly transmit such moneys to the said
treasurer, with a statement of the case in which
the same has been collected.
Half of such moneys so received shall be set
up in a special fund to be known as "The Law
Enforcement Officers' Benefit Fund," which shall
be used to aid the dependents of law enforcement
officers killed or seriously incapacitated while in
the discharge of duty. For the purpose of decid-
ing and determining the recipients of such bene-
fits, and the amount thereof to be paid, a commit-
tee is hereby provided for, consisting of the direc-
tor of the bureau, the state auditor, one sheriff
and one police officer, the last two to be appointed
by the governor and to serve at his will. Such
committee shall, under the direction of the gover-
nor, promulgate rules and regulations for the
proper disbursement of the funds and fixing eligi-
bility as to those who shall be adjudged to be
proper recipients of such benefits.
Law enforcement officers in the meaning of this
article shall include sheriffs, their appointed dep-
§ 7534(18)
STATE DEPARTMENTS, ETC.
§ 7534(24)
uty sheriffs, police officers, prison wardens and
deputy wardens, prison camp superintendents,
prison stewards, foremen and guards, highway
patrolmen, and any citizens duly deputized as a
deputy sheriff by a sheriff in an emergency.
Half of the moneys received from the additional
costs shall be set up in a fund to be known as the
"Bureau of Identification and Investigation Fund."
This fund shall be disbursed by the governor for
the operation and maintenance of the bureau — the
payment of salaries and costs of equipment — in
the event the fund becomes adequate for such ex-
penses. (1937, c. 349, s. 9.)
§ 7534(18). Operations of bureau deferred un-
til sufficient funds provided. — The said bureau of
identification and investigation shall not go into
operation until, within the discretion of the gov-
ernor, sufficient funds have been collected here-
under and paid into the state treasury for the pur-
poses of this article. (1937, c. 349, s. 10.)
Art. 17. Commission on Interstate Co-Operation
§ 7534(19). Senate committee on interstate co-
operation.— There is hereby established a stand-
ing committee of the senate of this state, to be
officially known as the senate committee on in-
terstate co-operation, and to consist of five sen-
ators. The members and the chairman of this
committee shall be designated in the same man-
ner as is customary in the case of the members
and chairmen of other standing committees of the
senate. In addition to the regular members, the
president of the senate shall be ex officio an hon-
orary non-voting member of this committee.
(1937, c. 374, s. 1.)
§ 7534(20). House committee on interstate co-
operation.— There is hereby established a similar
standing committee of the house of representa-
tives of this state, to be officially known as the
house committee on interstate co-operation, and
to consist of five members of the house of repre-
sentatives. The members and the chairman of
this committee shall be designated in the same
manner as is customary in the case of the mem-
bers and chairmen of other standing committees
of the house of representatives. In addition to
the regular members, the speaker of the house of
representatives shall be ex officio an honorary
non-voting member of this committee. (1937, c.
574, s. 2.)
§ 7534(21). Governor's committee on inter-
state co-operation. — There is hereby established a
committee of administrative officials and employ-
ees of this state, to be officially known as the gov-
ernor's committee on interstate co-operation, and
to consist of five members. Its members shall be:
the budget director or the corresponding official
of this state, ex officio; the attorney general, ex
officio; the chief of the staff of the state planning
board or the corresponding official of this state,
ex officio, and two other administrative officials
or employees to be designated by the governor.
If there is uncertainty as to the identity of any
of the ex officio members of this committee, the
governor shall determine the question, and his
determination and designation shall be conclusive.
The governor shall appoint one of the five mem-
bers of this committee as its chairman. In addi-
tion to the regular members, the governor shall
be ex officio an honorary non-voting member of
this committee. (1937, c. 374, s. 3.)
§ 7534(22). North Carolina commission on in-
terstate co-operation. — There is hereby established
the North Carolina commission on interstate co-
operation. This commission shall be composed
of fifteen regular members, namely:
The five members of the senate committee on
interstate co-operation.
The five members of the house committee on
interstate co-operation, and
The five members of the governor's committee
on interstate co-operation.
The governor, the president of the senate and
the speaker of the house of representatives shall
be ex officio honorary non-voting members of
this commission. The chairman of the governor's
committee on interstate co-operation shall be ex
officio chairman of this commission. (1937, c. 374,
s. 4.)
§ 7534(23). Legislative committees constitute
senate and house council of American Legislators'
Association. — The said standing committee of the
senate and the said standing committee of the
house of representatives shall function during the
regular sessions of the legislature and also dur-
ing the interim periods between such sessions;
their members shall serve until their successors
are designated; and they shall respectively con-
stitute for this state the senate council and house
council of the American Legislators' Association.
The incumbency of each administrative member
of this commission shall extend until the first day
of February next following his appointment, and
thereafter until his successor is appointed. (1937,
c. 374, s. 5.)
§ 7534(24). Functions and purpose of commis-
sion.— It shall be the function of this commission:
(1) To carry forward the participation of this
state as a member of the council of state govern-
ments.
(2) To encourage and assist the legislative, ex-
ecutive, administrative, and judicial officials and
employees of this state to develop and maintain
friendly contact by correspondence, by conference
and otherwise, with officials and employees of the
other state, of the federal government, and of lo-
cal units of government.
(3) To endeavor to advance co-operation be-
tween this state and other units of government
whenever it seems advisable to do so by formulat-
ing proposals for, and by facilitating:
(a) The adoption of compacts,
(b) The enactment of uniform or reciprocal
statutes,
(c) The adoption of uniform or reciprocal ad-
ministrative rules and regulations,
(d) The informal co-operation of governmental
offices with one another,
(e) The personal co-operation of governmental
officials and employees with one another, individ-
ually,
(f) The interchange and clearance of research
and information, and
(g) Any other suitable process.
(4) In short, to do all such acts as will, in the
opinion of this commission, enable this state to
do its part — or more than its part — in forming a
[ 230
§ 7534(25)
STATE OFFICERS
§ 7654
more perfect union among the various govern-
ments in the United States and in developing the
council of state governments for that purpose.
(1937, c. 374, s. 6.)
§ 7534(25). Appointment of delegations and
committees; persons eligible for membership; ad-
visory boards — The commission shall establish
such delegations and committees as it deems ad-
visable, in order that they may confer and formu-
late proposals concerning effective means to se-
cure inter-governmental harmony, and may per-
form other functions for the commission in obedi-
ence to its decisions. Subject to the approval of
the commission, the member or members of each
such delegation or committee shall be appointed
by the chairman of the commission. State offi-
cials or employees who are not members of the
commission on interstate co-operation may be ap-
pointed as members of any such delegation or
committee, but private citizens holding no govern-
mental position in this state shall not be eligible.
The commission may provide such other rules as
it considers appropriate concerning the member-
ship and the functioning of any such delegation
or committee. The commission may provide for
advisory boards for itself and for its various dele-
gations and committees, and may authorize pri-
vate citizens to serve on such boards. (1937, c.
374, s. 7.)
§ 7534(26). Reports to the governor and gen-
eral assembly; expenses; employment of secretary,
etc. — The commission shall report to the governor
and to the legislature within fifteen days after the
convening of each regular legislative session, and
at such other times as it deems appropriate. Its
members and the members of all delegations and
committees which it establishes shall serve with-
out compensation for such service, but they shall
be paid their necessary expenses in carrying out
their obligations under this chapter. The com-
mission may employ a secretary and a stenogra-
pher, it may incur such other expenses as may be
necessary for the proper performance of its du-
ties, and it may, by contributions to the council
of state governments, participate with other states
in maintaining the said council's district and cen-
tral secretariats, and its other governmental serv-
ices. (1937, c. 374, s. 8.)
§ 7534(27). Names of committees designated.
— The committees and the commission estab-
lished by this chapter shall be informally known,
respectively, as the senate co-operation commit-
tee, the house co-operation committee, the gov-
ernor's co-operation committee and the North
Carolina co-operation commission. (1937, c. 374,
s. 9.)
§ 7534(28). Council of state governments a
joint governmental agency. — The council of state
governments is hereby declared to be a joint gov-
ernmental agency of this state and of the other
states which co-operate through it. (1937, c. 374,
s. 10.)
§ 7534(29). Secretary of state to communicate
text of measure to officials and governing bodies
of other states. — The secretary of state shall
forthwith communicate the text of this measure
to the governor, to the senate, and to the house
of representatives of each of the other states of
[ 231 ]
the Union, and shall advise each legislature which
has not already done so that it is hereby me-
morialized to enact a law similar to this measure,
thus establishing a similar commission, and thus
joining with this state in the common cause of
reducing the burdens which are imposed upon the
citizens of every state by governmental confusion,
competition and conflict. (1937, c. 374, s. 11.)
CHAPTER 128
STATE LANDS
SUBCHAPTER I. ENTRIES AND GRANTS
Art. 5. Grants
§ 7583. Lands conveyed to United States for
inland waterway. —
Wherever, in the construction of the said inland
waterway, lands theretofore submerged shall be
raised above the water by deposit of excavated
material, the lands so formed shall become the
property of the United States for a distance of
one thousand feet on either side of the center of
such canal or channel, and the secretary of state
is hereby authorized to issue to the United States
a grant to the land so formed within the distance
above mentioned, the grant to issue upon a cer-
tificate furnished to the secretary of state by some
authorized official of the United States as above
provided. (1913, c. 197; 1937, c. 445.)
Editor's Note. — The 1937 amendment struck out the
words "or in the improvement of any other waterway with-
in this state" formerly appearing after the word "water-
way" in the second line of the second paragraph of this
section. The first paragraph, not being affected by the
amendment, is not set out here.
CHAPTER 129
STATE OFFICERS
Art. 3. The Governor
§ 7640(a). To designate "Indian Day." — The
governor of North Carolina is hereby empowered
to set aside some day which shall be called
"Indian Day" on which Indian lore shall receive
emphasis in the public schools of the state and
among the citizens of North Carolina. (Resolu-
tion 54, 1937, p. 957.)
§ 7651(a). Compensation for widows of gov-
ernors.— All widows of the governors of the state
of North Carolina who were married to said gov-
ernors before or during their term of office as
governor of the state of North Carolina and who
have attained, or shall hereafter attain, the age of
sixty-five years, shall be paid the sum of twelve
hundred ($1,200.00) dollars per annum during the
term of their natural lives, the same to be paid in
equal monthly installments of one hundred ($100-
.00) dollars per month out of the state treasury
upon warrant duly drawn thereon: Provided, that
no payment shall be made under this section un-
less and until the council of state shall find that
the beneficiary does not have an income adequate
for her support. (1937, c. 416.)
Art. 4. Secretary of State
§ 7654. Duties of secretary of state. —
For act transferring administration of Capital Issues I^aw
to secretary of state, see § 3924(aa).
§ 7661
STATE PRISON
§ 7748(b)
§ 7661. Transmits statutes and reports to other
states; statutes, etc., furnished certain universi-
ties.—
In order to enable the library of Duke Univer-
sity at Durham to carry out its co-operative plan,
undertaken in conjunction with the library of the
University of North Carolina, of building up with-
in the state a complete collection of the public
documents of the several states and other units of
government, through a system of exchanges
whereby needless duplication may be avoided, the
secretary of state shall, from and after the ratifi-
cation of this law, furnish said library of Duke
University on its request not more than twenty-
five copies each of the public, public-local and
private laws, the house and senate journals, the
legislative documents and all reports and publica-
tions of the state and of its several agencies, in-
stitutions and departments, and also of the vol-
umes of published opinions of the supreme court;
wrhenever publication of any of the volumes or
documents referred to is under supervision of
some official other than the secretary of state,
then it shall be the duty of such other official to
furnish the same as herein required: Provided,
that no reprint of any such volumes or documents
shall be made in order to comply with the provi-
sions hereof, nor that the volumes or documents
requested be necessary for the proper discharge
of the duties of any department or agency. (Rev.,
s. 5351; Code, ss. 3321, 3344; 1868-9, c. 270, ss. 28,
48; 1933, c. 355; 1935, c. 88; 1937, c. 222.)
Editor's Note.— The 1937 amendment directed that the
above paragraph be added to this section. The rest of the
section, not being affected by the amendment, is not set
out.
§ 7667. Distribution of supreme court reports.
— The supreme court reports shall be distributed
by the secretary of state as follows: To the gov-
ernor, lieutenant governor, attorney-general, treas-
urer, secretary of state, auditor, superintendent of
public instruction, commissioner of labor and
printing, commissioner of agriculture, and insur-
ance commissioner, corporation commission, legis-
lative reference library, the justices of the su-
preme court and judges of the superior courts,
the judges of the federal courts residing in the
state, the clerks of the supreme and superior
courts, and of the United States courts for North
Carolina, and each member of the North Carolina
industrial commission, one copy each; to the su-
preme court library, twelve copies; to the state
library, two copies; to the library of the supreme
court of the United States, one copy; to the li-
brary of the university ten copies, whereof eight
shall be for the use of the school of law, and to
the library of Wake Forest and Trinity colleges,
five copies; to North Carolina State College of
Agriculture and Engineering, one copy; and Le-
noir Rhyne College and Elon College and Guil-
ford College and to each state and territory in
the Union, including the District of Columbia, one
copy; and to the Dominion of Canada, to the
provinces of Canada, and Australia, and to New
Zealand, one copy each, and to each of said states,
territories, districts, provinces and dominions
which shall be willing to exchange their own sim-
ilar publications therefor, an additional copy, such
publications received in exchange to be sent di-
rect to the library of the university for the use of
the school of law, and one copy each to each
court in foreign states as the supreme court may
direct. (Rev., s. 5357; Code, s. 3635; 1873-4, c.
34, s. 2; 1876-7, c. 164, s. 2; 1881, c. 107; 1881, c.
104, s. 2; 1885, c. 82; 1891, c. 471; 1899, cc. 37,
667; 1903, c. 689; 1919, c. 195, s. 3; 1925, c. 52;
1927, cc. 36, 87; 1931, c. 113; 1937, c. 262.)
See §§ 7661, 7667(e).
^ Editor's Note. — The 1937 amendment inserted the words
"and each member of the North Carolina industrial com-
mission" in lines thirteen and fourteen of this section.
§ 7667(e). Reports allotted to Davidson and
Catawba Colleges. — The secretary of state is here-
by authorized and directed to furnish to the li-
braries at Davidson College and Catawba College,
upon application by the librarian, one complete
set of the North Carolina supreme court reports,
if available. The secretary of state is also au-
thorized and directed to furnish to said colleges
one copy of future reports. (1937, c. 260.)
Art. 7. Attorney- General
§ 7694. Duties.
An opinion of the attorney- general, given in the perform-
ance of his statutory duty under subsection 5 is advisory
only. Lawrence v. Shaw, 210 N. C. 352, 186 S. E. 504.
§ 7695(a). Assistants; compensation; assign-
ments.— The attorney general shall be allowed to
appoint three assistant attorneys general, and each
of such assistant attorneys general shall receive a
salary to be fixed by the director of the budget.
One assistant attorney general shall be assigned
to the state department of revenue, and the salary
of the assistant attorney general so assigned shall
be paid by the state department of revenue. The
other assistant attorneys general shall perform
such duties as may be assigned by the attorney
general: Provided, however, the provisions of this
section shall not be construed as preventing the
attorney general from assigning additional duties
to the assistant attorney general assigned to the
state department of revenue. (1925, c. 207, s. 1;
1937, c. 357.)
Editor's Note. — The 1937 amendment repealed the former
section and inserted the above in lieu thereof.
§ 7695(c): Superseded by Public Laws 1937, c.
357, codified as § 7695(a).
CHAPTER 130
STATE PRISON
Art. 3A. Labor on Roads
§ 7748(b). State highway and public works
commission created. — A highway and public works
commission is hereby created to be and continue
an agency of the state government and to be
known as "state highway and public works com-
mission." The said commission shall consist of
a chairman and ten commissioners; the chairman
and three of said commissioners shall be appointed
by the governor for a term of six years, and three
of said commissioners shall be appointed for a
term of four years, and four of said commissioners
shall be appointed for a term of two years, the
said terms to commence May first, one thousand
nine hundred and thirty-seven, and continue until
their successors are appointed and qualify: Pro-
vided, that the chairman or any commissioner ap-
232 ]
§ 7748(s)
TAXATION
§ 7880(1)
pointed pursuant to this section may be removed
by the governor for cause. In case of the death,
resignation, or removal from office of said chair-
man or any commissioner prior to the expiration
of his term of office, his successor shall be ap-
pointed by the governor to fill out the unexpired
term. At the expiration of the term for which
said chairman and commissioners are first ap-
pointed, their successors shall be appointed for a
term of six years each. The chairman shall de-
vote his entire time and attention to the work of
the commission, and shall receive as compensa-
tion not exceeding seven thousand five hundred
dollars ($7,500.00) per annum, to be fixed by the
governor and the advisory budget commission,
payable monthly, and his actual traveling expenses
when engaged in the discharge of his duties. The
said chairman shall, except as may be otherwise
provided by the commission, be vested with all
authority of the commission when the commission
is not in session, and shall be the executive officer
of the said commission and shall execute all or-
ders, rules, and regulations established by said
commission. The commissioners shall each re-
ceive ten dollars ($10.00) per day while engaged
in the discharge of the duties of his office and his
actual traveling expenses. The commissioners
shall be so selected that it will be physically pos-
sible to divide the state into ten divisions of sub-
stantially equal size on the joint bases of area,
population and mileage; and said commissioners
shall, on or before the first day of July, one thou-
sand nine hundred and thirty-seven, designate the
boundary lines of 'said divisions in such manner
that each of said commissioners will be a resident
of a separate division: Provided, however, that
said division lines may be changed from time to
time by a two-thirds vote of the commission and
with the consent and approval of the board of
county commissioners of the county or counties
immediately affected thereby. It is the intent and
purpose of this section that said commissioner
shall keep himself informed as to the road needs
of his particular division and present to the com-
mission from time to time the road needs of said
division, but that each of said commissioners
shall likewise be a representative of the state at
large, and the said commission, in determining
all matters and policies, shall act as a body and
not individually. The headquarters and main
office of the said commission shall be located in
Raleigh, and the commission shall meet in its
main office at least once in each sixty days, or at
such regular time as the commission may by rule
provide, and may hold special meetings at any
time and place within the state at the call of the
chairman or the governor or any three members
of the commission. Each member of the com-
mission shall designate some time and place dur-
ing each calendar month where he will be for the
purpose of hearing such matters and things as
may be presented to him by the governing bodies
of the several counties of his district; and shall
advise the chairmen of said governing bodies ac-
cordingly. It is the intent and purpose of this
section to continue in existence the present state
highway and public works commission, subject
only to the modifications herein set out, and all
portions of the present law not inconsistent with
the express provisions of this section are con-
tinued in full force and effect. The terms of office
of the present commissioners shall terminate upon
the effective date of this section. (1933, c. 172,
s. 2; 1935, c. 257, s. 1; 1937, c. 297, s. 1.)
As to authorizing use of county prisoners on roads not
within state system, see § 1364(1).
Editor's Note.— The 1937 amendment struck out the former
section and inserted the above in lieu thereof. Section 3 of
the amendatory act provides: "All of the provisions of
chapter two of the Public l,aws of one thousand nine hun-
dred and twenty-one and acts amendatory [see § 3846(a) et
seq.] thereof are hereby modified and altered so as to con-
form with the provisions of this act, and all provisions of
said chapter of the Public Laws of one thousand nine hun-
dred and twenty- one and acts amendatory thereof not in-
consistent with the provisions of this act and not hereto-
fore expressly repealed are re-enacted and continued in full
force and effect; and all laws and clauses of laws in con-
flict with the provisions of this act, to the extent of such
conflict, are hereby repealed."
For act to submit claims filed by counties to state high-
way and public works commission for consideration and
settlement, see Public Laws 1937, c. 417.
§ 7748 (s). Grading prisoners; discretionary use
of stripes. —
The use of uniforms of stripes such as have
heretofore been used to designate felons may be
used by the prison authorities of the state high-
way and public works commission as a matter of
discipline only, and prisoners, even though con-
victed of a felony, need not be clothed in such
stripes except as a form of discipline for the
violation of prison rules. (1933, c. 172, s. 23;
1937, c. 88, s. 1.)
Editor's Note. — The 1937 amendment directed that the
above provision be added at the end of this section. The
rest of the section, not being affected by the amendment, is
not set out.
Art. 4. Paroles
§ 7757(a) 1. Governor authorized to fix salary
of commissioner of paroles. — The governor of
North Carolina be and he is hereby empowered
to fix the salary of the commissioner of paroles
in any sum not to exceed the amount appropriated
for the salary of said commissioner by the general
assembly of one thousand nine hundred and thirty-
seven. (1937, c. 341.)
CHAPTER 131
TAXATION
SUBCHAPTER I. LEVY OF TAXES (REV-
ENUE ACT OF 1937)
§§ 7767-7880: Superseded by § 7880(1) et seq.
Art. 1. Schedule A. Inheritance Tax
§ 7880(1). General provisions. — A tax shall be
and is hereby imposed upon the transfer of any
property, real or personal, or of any interest there-
in or income therefrom/ in trust or otherwise, to
persons or corporations, in the following cases:
First. When the transfer is by will or by the
intestate laws of this state from any person dying,
seized or possessed of the property while a resi-
dent of the state; or when the transfer is by set-
tlement, contract, or agreement, or by any court
order or otherwise, to any person or persons, by
reason of claim or claims arising by virtue of in-
testate laws, in controversies or contests as to the
probate or construction of any will or wills, or
any trust or other instrument executed or created
by any person dying seized of the property while
a resident of this state.
[ 233 ]
§ 7880(2)
TAXATION
§ 7880(2)
Second. When the transfer is by will or intestate
laws of this or any other state or by settlements
in controversies over wills, as set forth in the pre-
ceding paragraph, of real property or of goods,
wares, and merchandise within this state, or of
any property, real, personal, or mixed, tangible
or intangible, over which the state of North Caro-
lina has a taxing jurisdiction, including state and
municipal bonds, and the decedent was a resident
of the state at the time of death; when the trans-
fer is of real property or tangible personal prop-
erty within the state, or intangible personal prop-
erty that has acquired a situs in this state, and
the decedent was a non-resident of the state at
the time of death.
Third. When the transfer of property made by
a resident, or non-resident, is of real property
within this state, or of goods, wares and merchan-
dise within this state, or of any other property,
real, personal, or mixed, tangible or intangible,
over which the state of North Carolina has taxing
jurisdiction, including state and municipal bonds,
by deed, grant, bargain, sale, or gift made in con-
templation of the death of the grantor, vendor, or
donor, or intended to take effect in possession or
enjoyment at or after such death, including a
transfer under which the transferor has retained
for his life or any period not ending before his
death (a) the possession or enjoyment of, or the
income from, the property or (b) the right to
designate the persons who shall possess or enjoy
the property or the income therefrom. Every
transfer by deed, grant, bargain, sale, or gift,
made within three years prior to the death of the
grantor, vendor, or donor, exceeding three per
cent (3%) of his or her estate, or in the nature of
a final disposition or distribution thereof, and with-
out an adequate valuable consideration, shall, in
the absence of proof to the contrary, be deemed
to have been made in contemplation of death with-
in the meaning of this section. So much of the
decedent's estate as is represented by gifts on
which the gift tax levied in this act has been paid
shall not be included in the estate of the donor tax-
able as inheritance.
Fourth. When any person or corporation comes
into possession or enjoyment, by a transfer from
a resident, or from a non-resident decedent when
such non-resident decedent's property consists of
real property within this state or tangible personal
property within the state, or intangible personal
property that has acquired a situs in this state, of
an estate in expectancy of any kind or character
which is contingent or defeasible, transferred by
any instrument taking effect after the passage of
this act, or of any property transferred pursuant
to a power of appointment contained in any in-
strument.
Fifth. Whenever any person or corporation
shall exercise a power or appointment derived from
any disposition of property made either before or
after the passage of this act, such appointment
when made shall be deemed a transfer taxable un-
der the provisions of this act, in the same manner
as though the property to which such appointment
relates belonged absolutely to the donee of such
power, and had been bequeathed or devised by
such donee by will, and the rate shall be deter-
mined by the relationship between the beneficiary
under the power and the donor; and whenever
any person or corporation having such power of
appointment so derived shall, for any reason what-
ever, omit or fail to exercise the same, in whole
or in part, or where for any reason the said power
has not been exercised, a transfer taxable under
the provisions of this act shall be deemed to take
place, to the extent of such omission or failure, in
the same manner as though the persons or corpo-
rations thereby becoming entitled to the posses-
sion or enjoyment of the property to which such
power related had succeeded thereto by will of the
donee of the power failing to exercise the same,
taking effect at the time of such omission or failure.
Sixth. Whenever any real or personal property,
or both, of whatever kind or nature, tangible or
intangible, is disposed of by will or by deed to any
person or persons for life, or the life of the sur-
vivor, or for a term of years, or to any corporation
for a term of years, with the power of appoint-
ment in such person or persons, or in such cor-
poration, or reserving to the grantor or devisor the
power of revocation, the tax, upon the death of
the person making such will or deed, shall, on the
whole amount of property so disposed of, be due
and payable as in other cases, and the said tax
shall be computed according to the relationship of
the first donee or devisee to the devisor.
Seventh. Where real property is held by hus-
band and wife as tenants by the entirety, the sur-
viving tenant shall be taxable on one-half of the
value of such property. (1937, c. 127, s. 1.)
For article discussing this subchapter, see 15 N. C. Law
Rev., No. 4, p. 387.
Editor's Note.— The 1937 Revenue Act supersedes all of
this subchapter of the 1935 Code except §§ 7880(177)a,
7880(177)b, 7880(184)a and 7880(196).
Liberal Construction.—
In accord with original. See Reynolds v. Reynolds, 208 N.
C. 578, 581, 182 S. E. 341.
Settlement of Taxes Claimed by Compromise. — The set-
tlement of taxes claimed under this section by compromise,
in a court of competent jurisdiction, in view of the bona
fide controversies between the parties, and the facts and
circumstances of the case, was affirmed on appeal, the mat-
ter being a legitimate subject of compromise and all par-
ties affected being duly represented. Reynolds v. Reynolds,
208 N. C. 578, 580, 182 S. £. 341.
§ 7880(2). Property exempt. — The following
property shall be exempt from taxation under this
article:
(a) Property passing to or for the use of the
state of North Carolina, or to or for the use of
municipal corporations within the state or other
political sub-divisions thereof, for exclusively pub-
lic purposes.
(b) Property passing to religious, charitable, or
educational corporations, or to churches, hospitals,
orphan asylums, public libraries, religious, benev-
olent, or charitable organizations, or passing to
any trustee or trustees for religious, benevolent, or
charitable purposes, where such religious, chari-
table, or educational institutions, corporations,
churches, trusts, etc., are located within the state
and not conducted for profit.
(c) Property passing to religious, educational,
or charitable corporations, not conducted for
profit, incorporated under the laws of any other
state, and receiving and disbursing funds donated
in this state for religious, educational, or charita-
ble purposes.
(d) The amount of twenty thousand dollars
($20,000.00), only, of the total proceeds of life in-
surance policies, when such policy or policies are
[ 234
§ 7880(3)
TAXATION
§ 7880(6)
payable to a beneficiary or beneficiaries named in
such policy or policies, and such beneficiary or
beneficiaries are any such person or persons as
are designated in section 7880(3), subsection (a):
Provided, that no more than twenty thousand
dollars ($20,000.00) of any such policy or policies
shall be exempt from taxation, whether in favor
of one beneficiary or more, and the exemption thus
provided shall be prorated between the benefi-
ciaries in proportion to the amounts received under
the policies, unless otherwise provided by the
decedent; and also proceeds of all life insurance
policies payable to beneficiaries named in sub-sec-
tions (a), (b), and (c) of this section. And also
proceeds of all policies of insurance and the pro-
ceeds of all adjusted service certificates paid by
the United States government to the beneficiary
or beneficiaries or heirs-at-law of any deceased
soldier of the World War under the present laws
of congress or any amendment that may be here-
after made thereto. (1937, c. 127, s. 2.)
Exemptions of property from taxation are to be strictly
construed. Benson v. Johnston County, 209 N. C. 751, 185
S. E. 6.
Property is liable for county taxes where it is not used
by the city for a governmental purpose, and therefore does
not come within the constitutional provision for the exemp-
tion of property from taxation (N. C. Const. Art. V, § 5),
or within the scope of this section enacted pursuant there-
to. Id.
Property was held subject to taxation by the county in
which the property is situate although owned by a munic-
ipal corporation, where the property was held by the mu-
nicipal corporation purely for business purposes and not
for any governmental or necessary public purpose. Board
of Financial Control v. Henderson County, 208 N. C. 569,
181 S. E. 636, 101 A. I,. R. 783.
§ 7880(3). Rate of tax— Class A.— (a) Where
the person or persons entitled to any beneficial
interest in such property shall be the lineal issue,
or lineal ancestor, or husband or wife of the per-
son who died possessed of such property afore-
said, or child adopted by the decedent in con-
formity with the laws of this state or of any of
the United States, or of any foreign kingdom or
nation, at the following rates of tax (for each one
hundred dollars ($100.00) or fraction thereof) of
the value of such interest:
First $ 10,000 above exemption 1 per cent
Over 10,000 and to $ 25,000 2 per cent
Over 200,000 and to 500,000 6 per cent
Over . 50,000 and to 100,000 4 per cent
Over 100,000 and to 200,000 5 per cent
Over 200,000 and to 500,000 6 per cent
Over 500,000 and to 1,000,000 7 per cent
Over 1,000,000 and to 1,500,000 8 per cent
Over 1,500,000 and to 2,000,000 9 per cent
Over 2,000,000 and to 2,500,000 10 per cent
Over 2,500,000 and to 3,000,000 11 per cent
(b) The persons mentioned in this class shall be
entitled to the following exemptions: Widows, ten
thousand dollars ($10,000.00); each child under
twenty-one years of age, five thousand dollars
($5,000.00) ; all other beneficiaries mentioned in
this section, two thousand dollars ($2,000.00) each:
Provided, a grandchild or grandchildren shall be
allowed the single exemption or pro rata part of
the exemption of the parent, when the parent of
any one grandchild or group of grandchildren is
deceased or when the parent is living and does
not share in the estate: Provided that any part
of the exemption not applied to the share of the
parent may be applied to the share of a grandchild
or group of grandchildren of such parent. The
same rule shall apply to the taking under a will,
and also in case of a specific legacy or devise:
Provided, that when any person shall die leaving
a widow and child or children under twenty-one
years of age, and leaving all or substantially all of
his property by will to his wife, the wife shall be
allowed an additional exemption of five thousand
dollars ($5,000.00) for each child under twenty-
one years of age. (1937, c. 127, s. 3.)
§ 7880(4). Rate of tax— Class B.— Where the
person or persons entitled to any beneficial in-
terest in such property shall be the brother or
sister or descendant of the brother or sister, or
shall be the uncle or aunt by blood of the person
who died possessed as aforesaid, at the following
rates of tax (for each one hundred dollars ($100.00)
or fraction thereof) of the value of such interest:
First $ 5,000 4 per cent
Over 5,000 and to $ 10,000 5 per cent
Over 10,000 and to 25,000 6 per cent
Over 25,000 and to 50,000 7 per cent
Over 50,000 and to 100,000 8 per cent
Over 100,000 and to 250,000 10 per cent
Over 250,000 and to 500,000 12 per cent
Over 500,000 and to 1,000,000 14 per cent
Over 1,000,000 and to 1,500,000 16 per cent
Over 1,500,000 and to 2,000,000 18 per cent
Over 2,000,000 and to 2,500,000 20 per cent
Over 2,500,000 and to 3,000,000 22 per cent
Over 3,000,000 24 per cent
(1937, c. 127, s. 4.)
§ 7880(5). Rate of tax— Class C— Where the
person or persons entitled to any beneficial inter-
est in such property shall be in any other degree
of relationship or collateral consanguinity than is
hereinbefore stated, or shall be a stranger in blood
to the person who died possessed as aforesaid, or
shall be a body politic or corporate, at the follow-
ing rates of tax (for each one hundred dollars
($100.00) or fraction thereof) of the value of such
interest:
First $ 10,000 8 per cent
Over 10,000 and to $ 25,000 9 per cent
Over 25,000 and to 50,000 10 per cent
Over 50,000 and to 100,000 11 per cent
Over 100,000 and to 250,000 13 per cent
Over 250,000 and to 500,000 15 per cent
Over 500,000 and to 1,000,000 17 per cent
Over 1,000,000 and to 1,500,000 19 per cent
Over 1,500,000 and to 2,000,000 21 per cent
Over 2,000,000 and to 2,500,000 23 per cent
Over 2,500,000 25 per cent
(1937, c. 127, s. 5.)
§ 7880(6). Estate tax.— (a) A tax in addition
to the inheritance tax imposed by this schedule is
hereby imposed upon the transfer of the net estate
of every decedent dying after the enactment of
this schedule, whether a resident or non-resident
of the state, where the inheritance tax imposed by
this schedule is in the aggregate of a lesser amount
than the maximum credit of eighty per cent (80%)
of the federal estate tax allowed by the Federal
Estate Tax Act as contained in the Federal Rev-
enue Act of one thousand nine hundred and twenty-
six, or subsequent acts and amendments, because
of said tax herein imposed, then the inheritance
[235]
§ 7880(7)
TAXATION
§ 7880(10)
tax provided for by this schedule shall be increased
by an estate tax on the net estate so that the ag-
gregate amount of tax due this state shall be the
maximum amount of credit allowed under said
Federal Estate Tax Act; said additional tax shall
be paid out of the same funds as any other tax
against the estate.
(b) Where no tax is imposed by this schedule
because of the exemptions herein or otherwise,
and a tax is due the United States under the
Federal Estate Tax Act, then a tax shall be due
this state equal to the maximum amount of the
credit allowed under said Federal Estate Tax Act.
(c) The administrative provisions of this sched-
ule, wherever applicable, shall apply to the col-
lection of the tax imposed by this section. The
amount of the tax as imposed by sub-section (a)
of this section shall be computed in full accord-
ance with the Federal Estate Tax Act as con-
tained in the Federal Revenue Act of one thou-
sand nine hundred and twenty-six, or subsequent
acts and amendments.
(d) If this section, or any sub-section, phrase
or clause thereof, is for any reason held to be un-
constitutional, such decision shall not affect the
validity of the remaining portion or portions of
this schedule in force at the time of the enactment
of this section, nor shall such decision affect the
validity of the remaining portion or portions of
this section. (1937, c. 127, s. 6.)
§ 7880(7). Deductions, — In determining the
clear market value of property taxed under this
article, or schedule, the following deductions, and
no others, shall be allowed:
(a) Taxes that have become due and payable,
and the pro rata part of taxes accrued for the
fiscal year that have not become due and payable.
(lb) Drainage and street assessments (fiscal year
in which death occurred).
(c) Reasonable funeral and burial expenses.
(d) Debts of decedent.
(e) Estate and inheritance taxes paid to other
states, and death duties paid foreign countries, and
the net amount of federal estate taxes as finally
assessed under the Revenue Act of one thousand
nine hundred and twenty-six. No deduction will
be allowed for federal estate taxes levied by sub-
sequent acts and amendments.
(f) Amount actually expended for monuments
not exceeding the sum of five hundred dollars
($500.00).
(g) Commissions of executors and administra-
tors actually allowed and paid.
(h) Costs of administration, including reasonable
attorneys' fees. (1937, c. 127, s. 7.)
§ 7880(8). Where no personal representative ap-
pointed, clerk of superior court to certify same to
commissioner of revenue. — Whenever an estate
subject to the tax under this act shall be settled
or divided among the heirs-at-law, legatees or
devisees, without the qualification and appointment
of a personal representative, the clerk of the su-
perior court of the county wherein the estate is
situated shall certify the same to the commis-
sioner of revenue, whereupon the commissioner of
revenue shall proceed to appraise said estate and
collect the inheritance tax thereon as prescribed
by this act. (1937, c. 127, s. 8.)
§ 7880(9). Tax to be paid on shares of stock
before transferred, and penalty for violation. — (a)
Property taxable within the meaning of this act
shall include bonds or shares of stock in any in-
corporated company incorporated in this state, re-
gardless of whether or not any such incorporated
company shall have any or all of its capital stock
invested in property outside of this state and do-
ing business outside of this state, and the tax on
the transfer of any bonds and/or shares of stock
in any such incorporated company owning prop-
erty and doing business outside of the state shall
be paid before waivers are issued for the transfer
of such shares of stock. No corporation of this
state shall transfer any bonds or stock of said
corporation standing in the name of or belonging
to a decedent or in the joint names of a decedent
and one or more persons, or in trust for a de-
cedent, unless notice of the time of such transfer
is served upon the commissioner of revenue at
least ten days prior to such transfer, nor until said
commissioner of revenue shall consent thereto in
writing. Any corporation making such a transfer
without first obtaining consent of the commis-
sioner of revenue as aforesaid shall be liable for
the amount of any tax which may thereafter be
assessed on account of the transfer of such bonds
and/or stock, together with the interest thereon,
and in addition thereto a penalty of one thousand
dollars ($1,000.00), which liability for such tax,
interest, and penalty may be enforced by an action
brought by the state in the name of the commis-
sioner of revenue. The word "transfer" as used
in this act shall be taken to include the passing
of property or any interest therein, in possession
or enjoyment, present or future, by distribution,
or by statute, descent, devise, bequest, grant, deed,
bargain, sale, gift, or otherwise. A waiver signed
by the commissioner of revenue of North Carolina
shall be full protection for any such company in
the transfer of any such stock.
(b) Any incorporated company not incorporated
in this state and owning property in this state
which shall transfer on its books the shares of
stock of any resident decedent holder of bonds
and/or shares of stock in such company exceeding
in value two hundred dollars ($200.00) before the
inheritance tax, if any, has been paid, shall be-
come liable for the payment of said tax; and any
property held by such company in this state shall
be subject to execution to satisfy name. A receipt
or waiver signed by the commissioner of revenue
of North Carolina shall be full protection for any
such company in the transfer of any such stock.
(1937, c. 127, s. 9.)
§ 7880(10). Commissioner of revenue to furnish
blanks and require reports of value of shares of
stock. — (a) The commissioner of revenue shall
prepare and furnish, upon application, blank forms
covering such information as may be necessary to
determine the amount of inheritance tax due the
state of North Carolina on the transfer of any such
bonds and/or stock; he shall determine the value
of such bonds and/or stock, and shall have full
authority to do all things necessary to make full
and final settlement of all such inheritance taxes
due or to become due.
(b) The commissioner of revenue shall have
authority, under penalties provided in this act, to
[ 236 ]
§ 7880(11)
TAXATION
§ 7880(14)
require that any reports necessary to a proper en-
forcement of this act be made by any such incor-
porated company owning property in this state.
(1937, c. 127, s. 10.)
§ 7880(11). Life insurance policies, — The pro-
ceeds of all life insurance policies payable at or
after death of the insured, and whether payable to
the estate of the insured or to a beneficiary or
beneficiaries named in the policy, shall be taxable
at the rates provided for in this article, subject
to> the exemptions in section 7880(2): Provided, if
any part of premiums have ibeen paid by a bene-
ficiary or beneficiaries, credit for such payment
may be allowed as a deduction from the proceeds
of the policy upon satisfactory proof thereof in
determining the tax chargeable against the bene-
ficiary or beneficiaries making such payment.
(1937, c. 127, s. 11.)
§ 7880(12). Recurring taxes, — Where property
transferred has been taxed under the provisions of
this article, such property shall not be assessed
and/or taxed on account of any other transfer of
like kind occurring within two years from the date
of the death of the former decedent: Provided,
that this section shall apply only to the trans-
ferees designated in sections 7880(3) and 7880(4).
(1937, c. 127, s. 12.)
§ 7880(13). Reciprocal provisions of other states.
— (a) The terms "death tax" and "death taxes,"
as used in the five following sub-sections, shall in-
clude inheritance, succession, transfer and estate
taxes and any taxes levied against the estate of a
decedent upon the occasion of his death.
(b) At any time before the expiration of eight-
een months after the qualification in any probate
court in this commonwealth of any executor of the
will or administrator of the estate of any non-
resident decedent, such executor or administrator
shall file with such court proof that all death taxes,
together with interest or penalties thereon, which
are due to the state of domicile of such decedent,
or to any political sub-division thereof, have been
paid or secured, or that no such taxes, interest or
penalties are due, as the case may be, unless it ap-
pears that letters testamentary or of administra-
tion have been issued on the estate of such dece-
dent in the state of his domicile in the four follow-
ing sub-sections called the domiciliary state.
(c) The proof required by sub-section (b) may
be in the form of a certificate issued by the official
or body charged with the administration of the
death tax laws of the domiciliary state. If such
proof has not been filed within the time limited in
sub-section (b), and if within such time it does
not appear that letters testamentary or of adminis-
tration have been issued in the domiciliary state,
the register of probate shall forthwith upon the
expiration of such time notify by mail the official
or body of the domiciliary state charged with the
administration of the death tax laws thereof with
respect to such estate, and shall state in such no-
tice so far as is known to him (a) the name, date
of death and last domicile of such decedent, (b)
the name and address of each executor or ad-
ministrator, (c) a summary of the values of the
real estate, tangible personalty, and intangible
personalty, wherever situated, belonging to such
decedent at the time of his death, and (d) the fact
that such executor or administrator has not filed
theretofore the proof required in sub-section (b).
Such register shall attach to such notice a plain
copy of the will and codicils of such decedent, if
he died testate, or, if he died intestate, a list of his
heirs and next of kin, so far as is known to such
register. Within sixty days after the mailing of
such notice the official or body charged with the
administration of the death tax laws of the dom-
iciliary state may file with such probate court in
this commonwealth a petition for an accounting in
such estate, and such official or body of the domi-
ciliary state shall, for the purposes of this section,
be a party interested for the purpose of petitioning
such probate court for such accounting. If such
petition be filed within said period of sixty days,
such probate court shall decree such accounting,
and upon such accounting being filed and ap-
proved shall decree either the payment of any
such tax found to be due to the domiciliary state
or sub-division thereof or the remission to a fidu-
ciary appointed or to be appointed by the probate
court, or other court charged with the adminis-
tration of estates of descendants, of the domiciliary
state, of the balance of the intangible personalty
after the payment of creditors and expenses of
administration in this commonwealth.
(d) No final account of an executor or adminis-
trator of a non-resident decedent shall be allowed
unless either (1) proof has been filed as required
by sub-section (b), or (2) notice under sub-sec-
tion (c) has been given to the official or body
charged with the administration of the death tax
laws of the domiciliary state, and such official or
body has not petitioned for an accounting under
said sub-section within sixty days after the mail-
ing of such notice, or (3) an accounting has been
had under said sub-section (c), a decree has been
made upon such accounting and it appears that
the executor or administrator has paid such sums
and remitted such securities, if any, as he was re-
quired to pay or remit by such decree, or (4) it
appears that letters testamentary or of adminis-
tration have been issued by the domiciliary state
and that no notice has been given under said sub-
section (c).
(e) Sub-sections (a) to (d), inclusive, shall ap-
ply to the estate of a non-resident decedent, only
in case the laws of the domiciliary state contain a
provision, of any nature or however expressed,
whereby this commonwealth is given reasonable
assurance, as finally determined by the commis-
sioner, of the collection of its death taxes, interest
and penalties from the estates of decedents dying
domiciled in this commonwealth, when such es-
tates are administered in whole or in part by a
probate court, or other court charged with the
administration of estates of decedents, in such
other state.
(f) The provisions of sub-sections (a) to (e),
inclusive, shall be liberally construed in order to
insure that the domiciliary state of any non-resi-
dent decedent whose estate is administered in this
commonwealth shall receive any death taxes, to-
gether with interest and penalties thereon, due to
it from the estate of such decedent. (1937, c. 127,
s. 29.)
§ 7880(14). When all heirs, legatees, etc., are
discharged from liability. — All heirs, legatees, dev-
[ 237 ]
§ 7880(15)
TAXATION
§ 7880(19)
isees, administrators, executors, and trustees shall
only be discharged from liability for the amount
of such taxes, settlement of which they may be
charged with, by paying the same for the use
aforesaid as hereinafter provided. (1937, c. 127,
s. 13.)
§ 7880(15). Discount for payment in six months;
interest after twelve months; penalty after two
years. — All taxes imposed by this act shall be due
and payable at the death of the testator, intestate,
grantor, donor, or vendor, and if the same are
paid within six months from the date of the death
of the testator, intestate, grantor, donor, vendor,
a discount of three per centum (3%) shall be al-
lowed and deducted from such taxes; if not paid
within twelve months from date of death of the
testator, intestate, grantor, donor, or vendor, such
tax shall bear interest at the rate of six per centum
(6%) per annum, to be computed from the ex-
piration of twelve months from the date of the
death of such testator, intestate, grantor, donor,
or vendor until paid: Provided, that if the taxes
herein levied shall not be paid in full within two
years from date of death of testator, intestate,
grantor, donor, or vendor, then and in such case
a penalty of five per centum (5%) upon the
amount of taxes remaining due and unpaid shall
be added: Provided further, that the penalty of
five per centum (5%) herein imposed may be re-
mitted by the commissioner of revenue in case of
unavoidable delay in settlement of estate or of
pending litigation, and the commissioner of rev-
enue is further authorized, in case of protracted
litigation or other delay in settlement not attribu-
table to laches of the party liable for the tax, to
remit all or any portion of the interest charges
accruing under this schedule, with respect to so
much of the estate as was involved in such litiga-
tion or other unavoidable cause of delay: Provided,
that time for payment and collection of such tax
may be extended by the commissioner of revenue
for good reasons shown. (1937, c. 127, s. 14.)
§ 7880(16). Collection to be made by sheriff if
not paid in two years. — If taxes imposed by this
act are not paid within two years after the death
of the decedent, it shall be the duty of the com-
missioner of revenue to certify to the sheriff of
the county in which the estate is located the
amount of tax due upon such inheritance, and the
sheriff shall collect the same as other taxes, with
an addition of two and one-half per cent (2>2%)
as sheriff's fees for collecting same, which fees
shall be in addition to any salary or other com-
pensation allowed by law to the sheriffs for their
services; and the sheriff is hereby given the same
rights of levy and sale upon any property upon
which the said tax is payable as is given in the
Machinery Act for the collection of other taxes.
The sheriff shall make return to the commissioner
of revenue of all such taxes within thirty days
after collection. (1937, c. 127, s. 15.)
§ 7880(17). Executor, etc., shall deduct tax. —
The executor or administrator or other trustee
paying any legacy or share in the distribution of
any estate subject to said tax shall deduct there-
from at the rate prescribed, or if the legacy or
share in the estate be not money, he shall demand
payment of a sum to be computed at the same
rates upon the appraised value thereof for the use
of the state; and no executor or administrator
shall pay or deliver any specific legacy or article
to be distributed, subject to tax, except on the
payment into his hands of a sum computed on its
value as aforesaid; and in case of neglect or re-
fusal on the part of said legatee to pay the same,
such specific legacy or article, or so much thereof
as shall be necessary, shall be sold by such exec-
utor or administrator at public sale, after notice
to such legatee, and the balance that may be left
in the hands of the executor or administrator shall
be distributed as is or may be directed by law;
and every sum of money retained by any executor
or administrator or paid into his hands on account
of any legacy or distributive share for the use of
the state shall be paid by him to the proper
officer without delay. (1937, c. 127, s. 16.)
Cited in Reynolds v. Reynolds, 208 N. C. 578, 182 S.
£. 341.
§ 7880(18). Legacy for life, etc., tax to be re-
tained, etc., upon the whole amount. — If the legacy
or devise subject to said tax be given to a bene-
ficiary for life or for a term of years, or upon con-
dition or contingency, with remainder to take
effect upon the termination of the life estate or the
happening of the condition or contingency, the
tax on the whole amount shall be due and payable
as in other cases, and said tax shall be apportioned
between such life tenant and the remainderman,
such apportionment to be made by computation
based upon the mortuary and annuity tables set
out as sections one thousand seven hundred and
ninety and one thousand seven hundred and ninety-
one of the Consolidated Statutes, and upon the
basis of six per centum (6%) of the gross value of
the estate for the period of expectancy of the life
tenant in determining the value of the respective
interests. When property is transferred or limited
in trust or otherwise, and the rights, interest, or
estate of the transferees or beneficiaries are de-
pendent upon contingencies or conditions where-
by they may be wholly or in part created, defeated,
extended, or abridged, la tax shall be imposed
upon said transfer at the highest rate, within the
discretion of the revenue commissioner, which on
the happening of any of the said contingencies or
conditions would be possible under the provisions
of this act, and such tax so imposed shall be due
and payable forthwith out of the property trans-
ferred, and the commissioner of revenue shall as-
sess the tax on such property. (1937, c. 127, s.
17.)
§ 7880(19). Legacy charged upon real estate,
heir, or devisee to deduct and pay to executor, etc.
— Whenever such legacy shall be charged upon or
payable out of real estate, the heir or devisee of
such real estate, before paying the same to such
legatee, shall deduct the tax therefrom at the rates
aforesaid, and pay the amount so> deducted to the
executor or administrator or the commissioner of
revenue, and the same shall remain a charge upon
such real estate until paid, and in default thereof
the same shall be enforced by the decrees of the
court in the same manner as the payment of such
legacy may be enforced: Provided, that all taxes
imposed by this act shall be a lien upon the real
and personal property of the estate on which the
tax is imposed or upon the proceeds arising from
[ 238 ]
§ 7880(20)
TAXATION
§ 7880(22)
the sale of such property from the time said tax
is due and payable, and shall continue a lien until!
said tax is paid and receipted for by the proper
officer of the state: Provided further, that no lien
for inheritance or estate taxes which accrued prior
to May first, one thousand nine hundred and
twenty-three, shall attach or affect the land. (1937,
c. 127, s. 18.)
§ 7880(20). Computation of tax on resident
and non-resident decedents. — A tax shall be as-
sessed on the transfer of property, including prop-
erty specifically devised or bequeathed, made sub-
ject to tax as aforesaid in this state of a resident
or non-resident decedent, if all or any part of the
estate of such decedent, wherever situated, shall
pass to persons or corporations taxable under this
act, which tax shall bear the same ratio to the en-
tire tax which the said estate would have been
subject to under this act if such decedent had been
a resident of this state, and all his property, real
and personal, had been located within this state,
as such taxable property within this state bears
to the entire estate, wherever situated. It shall
be the duty of the personal representative to
furnish to the commissioner of revenue such in-
formation as may be necessary or required to en-
able the commissioner to ascertain a proper com-
putation of his tax. Where the personal repre-
sentative fails or refuses to furnish information
from which this assessment can be made, the
property in this state liable to tax under this act
shall be taxed at the highest rate applicable to
those who are strangers in blood. (1937, c. 127,
s. 19.)
§ 7880(21). Regulations governing access to
safe deposits of a decedent. — No safe deposit com-
pany, trust company, corporation, bank, or other
institution, person or persons having in possession
or in control or custody, in whole or in part, se-
curities, deposits, assets, or property belonging
to or standing in the name of a decedent, or be-
longing to or standing in the joint names of a
decedent and one or more persons, shall deliver or
transfer the same to any person whatsoever,
whether in a representative capacity or not, or to
the survivor or to the survivors when held in the
joint names of a decedent and one or more per-
sons, without retaining a sufficient portion or
amount- thereof to pay taxes or interest which
would thereafter be assessed thereon under this
act; but the commissioner of revenue may con-
sent in writing to such delivery or transfer, and
such consent shall relieve said safe deposit com-
pany, trust company, corporation, bank or other
institution, person or persons from the obligation
herein imposed. Every safe deposit company,
trust company, corporation, bank or other institu-
tion, person, or persons engaged in the business
of renting lock boxes for the safe keeping of
valuable papers and personal effects, or having in
their possession or supervision in such lock boxes
such valuable papers or personal effects shall,
upon the death of any person using such lock box,
as a condition precedent to the opening of such
lock box by the executor, administrator, personal
representative, or co-tenant of such deceased per-
son, require the presence of the clerk of the su-
perior court of the county in which such lock box
is located. It shall be the duty of the clerk of
the superior court, or his representative, in the
presence of an officer or representative of the safe
deposit company, trust company, corporation,
bank, or other institution, person or persons, to
make an inventory of the contents of any such
lock box and to furnish a copy of such inventory
to the commissioner of revenue, to the executor,
administrator, personal representative, or co-tenant
of the decedent, and a copy to the safe deposit
company, trust company, corporation, bank, or
other institution, person or persons having pos-
session of such lock box. The clerk of the su-
perior court shall be paid by the representative of
said estate at the time of his qualification the sum
of two dollars ($2.00) for the services rendered
as hereinbefore prescribed in this section, and in
addition thereto he shall receive the same mileage
as is now allowed by law to witnesses for going
from his office to any place located in his county
to perform such services. The clerks of the su-
perior court of the several counties shall be al-
lowed the fees provided for in this section in ad-
dition to other fees or salaries received by them,
and any and all provisions in local acts in conflict
with this act are hereby repealed. Notwithstand-
ing any of the provisions of this section any life
insurance company may pay the proceeds of any
policy upon the life of a decedent to the person
entitled thereto as soon as it shall have mailed
to the commissioner of revenue a notice, in such
form as the commissioner of revenue may pre-
scribe, setting forth the fact of such payment; but
if such notice be not mailed, all of the provisions
of this section shall apply.
Failure to comply with the provisions of this
section shall render such safe deposit company,
trust company, corporation, bank or other institu-
tion, person or persons liable for the amount of
the taxes and interest due under this act on the
succession to such securities, deposits, assets, or
property, but in any action brought under this
provision it shall be a sufficient defense that the
delivery or transfer of securities, deposits, assets,
or property was made in good faith without knowl-
edge of the death of the decedent and without
knowledge of circumstances sufficient to place the
defendant on inquiry. (1937, c. 127, s. 21^.)
§ 7880(22). Duties of the clerks of the superior
court. — (a) It shall be the duty of the clerk of the
superior court to obtain from any executor or ad-
ministrator, at the time of the qualification of such
executor or administrator, the address of the per-
sonal representative qualifying, the names and ad-
dresses of the heirs-at-law, legatees, distributees,
devisees, etc., as far as practical; the approximate
value and character of the property or estate, both
real and personal; the relationship of the heirs-
at-law, legatees, devisees, etc., to the decedent, and
forward the same to the commissioner of revenue
on or before the tenth day of each month; and the
commissioner of revenue shall furnish the several
clerks blanks upon which to make said report, but
the failure to so furnish blanks shall not relieve
the clerk from the duty herein imposed. The clerk
shall make no report of a death where the estate
of a decedent is less than two thousand dollars
($2,000.00) in value, when the beneficiary is hus-
band or wife or child or grandchild of the dece-
dent. Any clerk of the superior court who shall
[239
§ 7880(23)
TAXATION
§ 7880(24)
fail, neglect, or refuse to file such monthly reports
as required by this section shall be liable to a
penalty in the sum of one hundred dollars ($100.00)
to be recovered by the commissioner of revenue
in an action to be brought by the commissioner of
revenue.
(b) It shall also be the duty of the clerk of the
superior court of each of the several counties of
the state to enter in a book, prepared and furnished
by the commissioner of revenue, to be kept for
that purpose, and which shall be a public record,
a condensed copy of the settlement of inheritance
taxes of each estate, together with a copy of the
receipt showing payment, or a certificate showing
no tax due, as shall be certified to him by the com-
missioner of revenue.
(c) For these services, where performed by the
clerk, the clerk shall be paid by the commissioner
of revenue, when certificates and receipts are sent
in to be recorded, as follows: For recording the
certificate of the commissioner of revenue show-
ing no tax due, the sum of fifty cents (50c). For
recording the certificate of the commissioner of
revenue showing that the tax received by the state
is one hundred dollars ($100.00) or less, he shall
be paid the sum of one dollar ($1.00). For re-
cording the certificate of the commissioner of
revenue showing that the tax received by the state
is more than one hundred dollars ($100.00) and
not over five hundred dollars ($500.00) he shall
be paid the sum of two dollars ($2.00). For re-
cording the certificate of the commissioner of
revenue showing that the tax received by the state
is more than five hundred dollars ($500.00) he
shall be paid the sum of five dollars ($5.00), which
sum shall be the maximum amount paid for re-
cording the certificate of the commissioner of
revenue for any one estate: Provided, that where
the decedent owns real estate in one or more
counties, other than the county in which the ad-
ministration of the estate is had, then the fee of
the clerks of the court of such other counties for
recording the certificate of the commissioner of
revenue shall be fifty cents (50c) each, and the
same fee shall be paid for like service by the clerks
in case of the settlement of the estates of non-
residents. The clerk of the superior court shall
receive the sum of fifty cents (50c) for making up
and transmitting to* the commissioner of revenue
the report required in this section, containing a
list of persons who died leaving property in his
county during the preceding month, etc.: Pro-
vided further, that where the clerk of the superior
court has failed or neglected to make the report
required of him in this section, in that case he
shall only receive for recording the certificate of
the commissioner of revenue the sum of fifty
cents (50c).
The clerks of the superior court of the several
counties shall be allowed the fees provided for in
this section in addition to other fees or salaries re-
ceived by them, and any and all provisions in local
acts in conflict with this act are hereby repealed.
(1937, c. 127, s. 20.)
§ 7880(23). Information by administrator and
executor. — Every administrator shall prepare a
statement in duplicate, showing as far as can be
ascertained the names of all the heirs-at-law and
their relationship to decedent, and every executor
shall prepare a like statement, accompanied by a
copy of the will, showing the relationship to the
decedent of all legatees, distributees, and devisees
named in the will, and the age at the time of death
of the decedent of all legatees, distributees, devi-
sees to whom property is bequeathed or devised
for life or for a term of years, and the names of
those, if any, who have died before the decedent,
together with the postoffice address of executor,
administrator, or trustee. If any of the heirs-at-
law, distributees, and devisees are minor children
of the decedent, such statement shall also show
the age of each of such minor children. The state-
ment shall also contain a complete inventory of
all the real property of the decedent located in and
outside the state, and of all personal property,
wherever situate, of the estate, of all insurance
policies upon the life of the decedent, together
with an appraisal under oath of the value of each
class of property embraced in the inventory, and
the value of the whole, together with any deduc-
tions permitted by this statute, so far as they may
be ascertained at the time of filing such statement;
and also the full statement of all gifts or advance-
ments made by deed, grant, or sale to any person
or corporation, in trust or otherwise, within three
years prior to the death of the decedent. The
statement herein provided for shall be filed with
the commissioner of revenue at Raleigh, North
Carolina, within six months after the qualification
of the executor or administrator, upon blank forms
to be prepared by the commissioner of revenue.
If any administrator or executor fails or refuses
to comply with any of the requirements of this
section, he shall be liable to a penalty in the sum
of five hundred dollars ($500.00), to be recovered
by the commissioner of revenue in action to be
brought by the commissioner of revenue to col-
lect such sum in the superior court of Wake
county against such administrator or executor.
The commissioner of revenue, for good cause
shown, may remit all or any portion of the penalty
imposed under the provisions of this section.
Every executor or administrator may make a ten-
tative settlement of the inheritance tax with the
commissioner of revenue, based on the sworn in-
ventory provided in this section: Provided, that
this does not apply to estates of less than two
thousand dollars ($2,000.00) in value when the ben-
eficiaries are husband or wife or children or grand-
children, or parent or parents of the decedent. If
any executor, administrator, collector, committee,
trustee or any other fiduciary within or without
this state holding or having control of any funds,
property, trust or estate, the transfer of which be-
comes taxable under the provisions of this act,
shall fail to file the statements herein required,
within the times herein required, the commissioner
of revenue is authorized and shall be required to
secure the information herein required from the
best sources available, and therefrom assess the
taxes levied hereunder, together with the penalties
herein and otherwise provided. (1937, c. 127, s.
21.)
§ 7880(24). Supervision by commissioner of rev-
enue.— The commissioner of revenue shall have
complete supervision of the enforcement of all pro-
visions of the Inheritance Tax Act and the collec-
tions of all inheritance taxes found to be due there-
[240]
§ 7880(25)
TAXATION
§ 7880(28)
under, and shall make all necessary rules and reg-
ulations for the just and equitable administration
thereof. He shall regularly employ such deputies,
attorneys, examiners, or special agents as may be
necessary for the reasonable carrying out of its
full intent and purpose. Such deputies, attorneys,
examiners, or special agents shall, as often as re-
quired to do so, visit the several counties of the
state to inquire and ascertain if all inheritance
taxes due from estates of decedents, or heirs-at-
law, legatees, devisees, or distributees thereof have
been paid; to see that all statements required by
this act are filed by administrators and executors,
or by the beneficiaries under wills where no exec-
utor is appointed; to examine into all statements
filed by such administrators and executors; to re-
quire such administrators and executors to furnish
any additional information that may be deemed
necessary to determine the amount of tax that
should be paid by such estate. If not satisfied,
after investigation, with valuation returned by the
administrator or executor, the deputy, attorney,
examiner, or appraiser shall make an additional
appraisal after proper examination and inquiry, or
may, in special cases, recommend the appointment
by the commissioner of revenue of a special ap-
praiser who, in such case, shall be paid five dol-
lars ($5.00) per day and expenses for his services.
The administrator or executor, if not satisfied with
such additional appraisal, may appeal within thirty
days to the commissioner of revenue, which ap-
peal shall be heard and determined as other cases.
From this decision the administrator or execu-
tor shall have the right to appeal to the superior
court of the county in which said estate is situated
for the purpose of having said issue tried; said ap-
peal to be made in the same way and manner as is
now provided by law for appeals from the deci-
sions of the public utilities commission: Provided,
that the tax shall first be paid, or satisfactory
surety bond in double the amount of any alleged
deficiency shall be filed with the commissioner
pending an appeal; and if it shall be determined
upon trial that said tax or any part therof was il-
legal or excessive, judgment shall be rendered
therefor with interest, and the amount of tax so
adjudged overpaid or declared invalid shall be cer-
tified by the clerk of court to the commissioner of
revenue, who is authorized and directed to draw
his account on the state treasurer for the amount
thereof. (1937, c. 127, s. 22.)
§ 7880(25). Proportion of tax to be repaid upon
certain conditions. — . Whenever debts shall be
proven against the estate of a decedent after the
distribution of legacies from which the inheritance
tax has been deducted in compliance with this act,
and the legatee is required to refund any portion
of the legacy, a proportion of the said tax shall be
repaid to him by the executor or administrator if
the said tax has not been paid into the state treas-
ury, or shall be refunded by the state treasurer,
if it has been so paid in, upon certificate of the
commissioner of revenue. (1937, c. 127, s. 23.)
§ 7880(26). Commissioner of revenue may or-
der executor, etc., to file account, etc. — If the com-
missioner of revenue shall discover that reports
and accounts have not been filed, and the tax, if
any, has not been paid as provided in this act, he
shall issue a citation to the executor, administra-
tor, or trustee of the decedent whose estate is sub-
ject to tax, to appear at a time and place therein
mentioned, not to exceed twenty days from the
date thereof, and show cause why said report and
account should not be filed and said tax paid; and
when personal service cannot be had, notice shall
be given as provided for service of summons by
publication in the county in which said estate is
located; and if said tax shall be found to be due,
the said delinquent shall be adjudged to pay said
tax, interest and cost; if said tax shall remain due
and unpaid for a period of thirty days after notice
thereof, the commissioner of revenue shall certify
the same to the sheriff, who shall make collection
of said tax, cost and commissions for collection,
as provided in section 7880(15). (1937, c. 127, s.
24.)
§ 7880(27). Failure of administrator, executor,
or trustee to pay tax. — Any administrator, execu-
tor, or trustee who shall fail to pay the lawful in-
heritance taxes due upon any estate in his hands
or under his control within two years from the
time of his qualification shall be liable for the
amount of the said taxes, and the same may be re-
covered in an action against such administrator,
executor, or trustee, and the sureties on his official
bond. Any clerk of the court who shall allow
any administrator, executor, or trustee to make a
final settlement of his estate without having paid
the inheritance tax due by law, and exhibiting his
receipt from the commissioner of revenue there-
for, shall be liable upon his official bond for the
amount of such taxes. (1937, c. 127, s. 25.)
§ 7880(28). Uniform valuation. — (a) If the value
of any estate taxed under this schedule shall have
been assessed and fixed by the federal government
for the purpose of determining the federal taxes
due thereon prior to the time the report from the
executor or administrator is made to the commis-
sioner of revenue under the provisions of this act,
the amount or value of such estate so fixed, as-
sessed, and determined by the federal government
shall be stated in such report. If the assessment
of the estate by the federal government shall be
made after the filing of the report by the executor
or administrator with the commissioner of reve-
nue, as provided in this act, the said executor or
administrator shall, within thirty days after re-
ceipt of notice of the final determination by the
federal government of the value or amount of said
estate as assessed and determined for the purpose
of fixing federal taxes thereon, make report of the
amount so fixed and assessed by the federal gov-
ernment, under oath or affirmation, to the com-
missioner of revenue. If the amount of said estate
as assessed and fixed by the federal government
shall be in excess of that theretofore fixed or as-
sessed under this schedule for the purpose of de-
termining the amount of taxes due the state from
said estate, then the commissioner of revenue
shall reassess said estate and fix the value thereof
at the amount fixed, assessed, and determined by
the federal government, unless the said executor
or administrator shall, within thirty days after no-
tice to him from the commissioner of revenue,
show cause why the valuation and assessment of
said estate as theretofore made should not be
N. C. Supp.— 16
[241]
§ 7880(29)
TAXATION
§ 7880(30)
changed or increased. If the valuation placed up-
on said estate by the federal government shall be
less than that theretofore fixed or assessed under
this act, the executor or administrator may, within
thirty days after filing his return of the amount so
fixed or assessed by the federal government, file
with the commissioner of revenue a petition to
have the value of said estate reassessed and the
same reduced to the amount as fixed or assessed
by the federal government. In either event the
commissioner of revenue shall proceed to deter-
mine, from such evidence as may be brought to his
attention or which he shall otherwise acquire, the
correct value of the said estate, and if valuation is
changed, he shall reassess the taxes due by said
estate under this act and notify the executor or ad-
ministrator of such fact. In the event the valua-
tion on said estate shall be decreased, and if there
shall have been an overpayment of the tax, the
said commissioner shall, within sixty days after
the final determination of the value of said estate
and the assessment of the correct amount of tax
against the same, refund the amount of such ex-
cess tax theretofore paid.
(b) If the executor or administrator shall fail
to file with the commissioner of revenue the re-
turn under oath or affirmation, stating the amount
of value at which the estate was assessed by the
federal government as provided for in this section,
the commissioner of revenue shall assess and col-
lect from the executor or administrator a penalty
equal to twenty-five per cent (25%) of the amount
of any additional tax which may be found to be
due by such estate upon reassessment and reap-
praisal thereof, which penalty shall under no con-
dition be less than twenty-five dollars ($25.00) or
more than five hundred dollars ($500.00), and
which cannot be remitted by the commissioner of
revenue except for good cause shown. The com-
missioner of revenue is authorized and directed to
confer quarterly with the department of internal
revenue of the United State government to ascer-
tain the value of estates in North Carolina which
have been assessed for taxation by the federal gov-
ernment, and he shall co-operate with the said de-
partment of internal revenue, furnishing to said
department such information concerning estates
in North Carolina as said department may request.
(1937, c. 127, s. 26.)
§ 7880(29). Executor defined. — Wherever the
word ''executor" appears in this act it shall include
executors, administrators, collectors, committees,
trustees, and all fiduciaries. (1937, c. 127, s. 27.)
§ 7880(29) a. Additional remedies for enforce-
ment of tax. — In addition to all other remedies
which may now exist under the law, or may here-
after be established, for the collection of the taxes
imposed by the preceding sections of this article,
the tax so imposed shall be a lien upon all of the
property and upon all of the estate, with respect
to which the taxes are levied, as well as collectible
out of any other property, resort to which may be
had for their payment; and the said taxes shall
constitute a debt, which may be recovered in an
action brought by the commissioner of revenue in
any court of competent jurisdiction in this state,
and/or in any court having jurisdiction of actions
of debt in any state of the United States, and/or
in any court of the United States against an ad-
ministrator, executor, trustee, or personal repre-
sentative, and/or any person, corporation, or con-
cern having in hand any property, funds, or as-
sets of any nature, with respect to which such tax
has been imposed. No title or interest to such es-
tate, funds, assets, or property shall pass, and no
disposition thereof shall be made by any person
claiming an interest therein until the said taxes
have been fully paid. (1937, c. 127, s. 28.)
Art. 2i Schedule B. License Taxes
§ 7880(30). Taxes under this article.— Taxes in
this article or schedule shall be imposed as a state
license tax for the privilege of carrying on the
business, exercising the privilege, or doing the act
named, and nothing in this act shall be construed
to relieve any person, firm, or corporation from
the payment of the tax prescribed in this article or
schedule.
(a) If the business made taxable or the privilege
to be exercised under this article or schedule is
carried on at two or more separate places, a sep-
arate state license for each place or location of
such business shall be required.
(b) Every state license issued under this article
or schedule shall be for twelve months, shall ex-
pire on the thirty-first day of May of each year,
and shall be for the full amount of the tax pre-
scribed: Provided, that where the tax is levied on
an annual basis and the licensee begins such busi-
ness or exercises such privilege after the first day
of January and prior to the thirty-first day of
May of each year, then such licensee shall be re-
quired to pay one-half of the tax prescribed other
than the tax prescribed to be computed and levied
upon a gross receipts and/or percentage basis for
the conducting of such business or the exercising
of such privilege to and including the thirty-first
day of May, next following. Every county, city
and town license issued under this article or sched-
ule shall be for twelve months, and shall expire on
the thirty-first day of May or thirtieth day of June
of each year as the governing body of such county,
city or town may determine: Provided, that where
the licensee begins such business or exercises such
privilege after the expiration of seven months of
the current license year of such municipality, then
such licensee shall be required to pay one-half of
the tax prescribed other than the tax prescribed to
be computed upon a gross receipts and/or per-
centage basis.
(c) The state license thus obtained shall be and
constitute a personal privilege to conduct the busi-
ness named in the state license, shall not be trans-
ferable to any other person, firm, or corporation,
and shall be construed to limit the person, firm, or
corporation name in the license to conducting the
business and exercising the privilege named in the
state license to the county and/or city and loca-
tion specified in the state license, unless other-
wise provided in this article or schedule: Pro-
vided, that if the holder of a license under this
schedule moves the business for which a license
has been paid to another location, a new license
may be issued to the licensee at a new location,
for the balance of the license year, upon surrender
of the original license for cancellation and the pay-
[242]
§ 7880(31)
TAXATION
§ 7880(32)
ment of a fee of five dollars ($5.00) for each li-
cense certificate reissued.
(d) Whenever, in any section of this article or
schedule, the tax is graduated with reference to the
population of the city or town in which the busi-
ness is to be conducted or the privilege exercised,
the minimum tax provided in such section shall be
applied to the same business or privilege when
conducted or exercised outside of the municipality,
unless such business is conducted or privilege ex-
ercised within one mile of the corporate limits of
such municipality, in which event the same tax
shall be imposed and collected as if the business
conducted or the privilege exercised were inside
of the corporate limits of such municipality: Pro-
vided, that with respect to taxes in this article, as-
sessed on a population basis, the same rates shall
apply to incorporated towns and unincorporated
places or towns alike, with the best estimate of
population available being used as a basis for de-
termining the tax in unincorporated places or
towns. The term "places or towns" means any
unincorporated community, point or collection of
people having a geographical name by which it
may be generally known, and is so generally des-
ignated.
(e) All state taxes imposed by this article shall
be paid to the commissioner of revenue, or to one
of his deputies; shall be due and payable on or
before the first day of June of each year, and after
such date shall be deemed delinquent, and subject
to all the remedies available and the penalties im-
posed for the payment of delinquent state license
and privilege taxes: Provided, that if a person,
firm, or corporation begins any business or the ex-
ercise of any privilege requiring a license under
this article or schedule after the thirty-first day of
May and prior to the thirty-first day of the follow-
ing May of any year, then such person, firm, or
corporation shall apply for and obtain a state li-
cense for conducting such business or exercising
any such privilege in advance, and before the be-
ginning of such business or the exercise of such
privilege; and a failure to so apply and to obtain
such state license shall be and constitute a delin-
quent payment of the state license tax due, and such
person, firm, or corporation shall be subject to the
remedies available and penalties imposed for the
payment of such delinquent taxes: Provided fur-
ther, that the taxes levied in subsection (e) of sec-
tion one hundred twenty-six of chapter three hun-
dred seventy-one, Public Laws of one thousand
nine hundred thirty-five, and subsection (c) of
section one hundred twenty-six and one-half of
chapter three hundred seventy-one, Public Laws
of one thousand nine hundred thirty-five, and sub-
section (b) of section one hundred twenty-seven
of chapter three hundred seventy-one, Public Laws
of one thousand nine hundred thirty-five, shall
continue in effect until July first, one thousand
nine hundred thirty-seven.
(f) The taxes imposed and the rates specified
in this article or schedule shall apply to the sub-
jects taxed on and after the first day of June, one
thousand nine hundred thirty-seven, and prior to
said date the taxes imposed and the rates specified
in the Revenue Act of one thousand nine hundred
thirty-five shall apply.
(g) It shall be the duty of a grantee, transferee,
or purchaser of any business or property subject
to the state license taxes imposed in this article to
make diligent inquiry as to whether the state li-
cense tax has been paid, but when such business
or property has been granted, sold, transferred, or
conveyed to an innocent purchaser for value and
without notice that the vendor owed or is liable
for any of the state license taxes imposed under
this article, such property, while in the possession
of such innocent purchaser, shall not be subject to*
any lien for such state license taxes.
(h) All county or municipal taxes levied by the
board of county commissioners of any county, or
by the board of aldermen or other governing body
of any municipality within this state, under the au-
thority conferred in this act, shall be collected by
the sheriff or tax collector of such county and by
the tax collector of such city, and the county or
municipal license shall be issued by such officer.
(i) Any person, firm, or corporation who shall
wilfully make any false statement in an applica-
tion for a license under any section of this article
or schedule shall be guilty of a misdemeanor, and
upon conviction shall be fined and/or imprisoned
in the discretion of the court, which fine shall not
be less than the amount of tax specified under such
section, and shall be in addition to the amount of
such tax. (1937, c. 127, s. 100, c. 249, s. 1.)
Cited in State v. Warren, 211 N. C. 75, 189 &'. E. 108.
§ 7880(31). Amusement parks, — Every person,
firm, or corporation engaged in the business of op-
erating a park, open to the public as a place of
amusement, and in which there may be either a
bowling alley, trained animal show, penny or
nickel machine for exhibiting pictures, theatrical
performance, or similar entertainment, shall apply
for and obtain from the commissioner of revenue a
state license for the privilege of conducting such
amusement park, and shall pay for such license
the following tax:
State license for two months $200.00
State license for four months 400.00
State license for eight months 600.00
State license for twelve months 800.00
This section shall not apply to bathing beaches
which are not operated for more than four months
each year.
(a) The licensee shall have the privilege of do-
ing any or all the things set out in this section;
but the operation of a carnival, circus, or a show
of any kind that moves from place to place shall
not be allowed under the state license provided
for in this section.
(b) Counties shall not levy a license tax on the
business taxed under this section. (1937, c. 127, s.
102.)
§ 7880(32). Amusements — traveling theatrical
companies, etc. — Every person, firm, or corpora-
tion engaged in the business of a traveling theatri-
cal, traveling moving picture, and/or traveling
vaudeville company, giving exhibitions or per-
formances in any hall, tent, or other place not li-
censed under sections 7880(31) and 7880(34),
whether on account of municipal ownership or
otherwise, shall apply for and obtain from the
commissioner of revenue a state license for the
privilege of engaging in such business, and pay
for such license a tax of twenty-five dollars
[ 243 ]
§ 7880(33)
TAXATION
§ 7880(34)
($25.00) for each day or part of a day's exhibits
or performances: Provided, that
(a) Artists exhibiting paintings or statuary
work of their own hands shall only pay two dol-
lars ($2.00) for such state license.
(b) Such places of amusement as do not charge
more than a total of fifty cents (50c) for admis-
sion at the door, including a reserved seat, and
shall perform or exhibit continuously in any given
place as much as one week, shall be required to
pay for such state license a tax of twenty-five dol-
lars ($25.00) per week.
(c) The owner of the hall, tent, or other place
where such amusements are exhibited or perform-
ances held shall be liable for the tax.
(d) In lieu of the state license tax, hereinbefore
provided for in this section, such amusement com-
panies, consisting of not more than ten perform-
ers, may apply for an annual state-wide license,
and the same may be issued by the commissioner
of revenue for the sum of three hundred dollars
($300.00), paid in advance, prior to the first exhi-
bition in the state, shall be valid in any county of
this state, and shall be in full payment of all state
license taxes imposed in this section.
(e) Any traveling organization which exhibits
animals or conducts side shows in connection with
its exhibitions or performances shall not be taxed
under this section, but shall be taxed as herein
otherwise provided.
(f) The owner, manager, or proprietor of any
such amusements described in this section shall
apply in advance to the commissioner of revenue
for a state license for each county in which a per-
formance is to be given.
That upon all performances taxable under this
section there is levied, in addition to the license
tax levied in this section, a tax upon the gross
receipts of such business at the rate of tax levied
in Article V, Schedule E, of this act [§ 7880(l56)a
et seq.] upon retail sales of merchandise. The li-
cense tax herein levied shall be treated as an ad-
vance payment of the tax upon gross receipts
herein levied, and the license tax shall be applied
as a credit upon or advance payment of the gross
receipts tax. The commissioner of revenue may
adopf such regulations as may be necessary to ef-
fectuate the provisions of this section and shall
prescribe the form and character of reports to be
made, and shall have such authority of supervi-
sion as may be necessary to effectuate the pur-
poses of this act.
(g) Counties, cities and towns may levy a li-
cense tax not in excess of the license tax levied
by the state. (1937, c. 127, s. 103.)
§ 7880(33). Amusements — manufacturing, sell-
ing, leasing, or distributing moving picture films
or checking attendance at moving picture shows.
— Every person, firm, or corporation engaged in
the business of manufacturing, selling, or leasing,
furnishing, and/or distributing films to be used in
moving pictures within this state shall apply for
and obtain from the commissioner of revenue a
state-wide license for the privilege of engaging in
such business in this state, and shall pay for such
license a tax of six hundred and twenty-five dol-
lars ($625.00).
Any person, firm, or corporation engaged under
contract or for compensation in the business of
checking the attendance at any moving picture or
show for the purpose of ascertaining attendance
or amount of admission receipts at any theatre or
theatres shall apply for and obtain from the com-
missioner of revenue a state-wide license for the
privilege of engaging in such business in this state,
and shall pay for such license an annual tax of
two hundred and fifty dollars ($250.00).
Counties, cities, and towns shall not levy a li-
cense tax on the business taxed under this section.
(1937, c. 127, s. 104.)
§ 7880(34). Amusements — moving pictures or
vaudeville shows — admissions. — Every person,
firm, or corporation engaged in the business of
operating a moving picture show or place where
vaudeville exhibitions or performances are given
or operating a theatre or opera house where pub-
lic exhibitions or performances are given for com-
pensation shall apply for and obtain in advance
from the commissioner of revenue a state license
for the privilege of engaging in such business, and
shall pay for such state license for each room, hall,
or tent used the following base tax:
In cities or towns of less than 1,500 popula-
tion $ 25.00
In cities or towns of 1,500 and less than
3,000 population 62.50
In cities or towns of 3,000 and less than
5,000 population 125.00'
In cities or towns of 5,000 and less than
10,000 population 175.00
In cities or towns of 10,000 and less than
15,000 population 275.00
In cities or towns of 15,000 and less than
25,000 population 375.00
In cities or towns of 25,000 population or
over 425.00
(a) For any moving picture show operated
more than two miles from the business center of
any city having a population of twenty-five thou-
sand or over (for the purpose of this provision, the
term "business center" to be defined as the inter-
section of the two principal business streets of
the city), the base tax levied shall be two hundred
dollars ($200.00).
In addition to the base tax levied in the above
schedule of this section, such person, firm, or cor-
poration shall pay an additional tax upon the gross
receipts of such business at the rate of tax upon
all such gross receipts levied in Article V, Sched-
ule E, of this act [§ 7880(156)a et seq.] upon re-
tail sales of merchandise. Reports shall be made
to the commissioner of revenue in such form as
he may prescribe within the first ten days of each
month, covering all such gross receipts for the
previous month and the additional tax herein lev-
ied shall be paid monthly at the time such reports
are made. The annual license tax herein levied
shall be treated as an advance payment of the tax
upon gross receipts herein levied, and the annual
license tax shall be applied as a credit upon or ad-
vance payment of the gross receipts tax. Pro-
vided, if the tax upon admissions herein levied is
not added to the admission price as a separate
charge to any exhibition of motion pictures shown
under percentage royalty contracts, the gross re-
ceipts, with reference to such royalty contracts,
[ 244 ]
§ 7880(35)
TAXATION
§ 7880(35)
shall be deemed to be the gross receipts from ad-
missions after the percentage tax upon gross re-
ceipts shall have been paid or deducted.
(b) Upon any and all other forms of entertain-
ment and amusement not otherwise taxed or spe-
cifically exempted in this act, including athletic
contests of all kinds, high school and elementary
school contests, for which an admission is charged
in excess of fifty cents (50c), including football,
baseball, basketball, dances, wrestling, and box-
ing contest, an annual license tax of five dollars
($5.00) shall be paid for each location where such
charges are made, and an additional charge upon
the gross receipts at the rate of tax levied in Ar-
ticle V, Schedule E, of this act [§ 7880(156) a et
seq.] upon retail sales of merchandise, the addi-
tional tax upon gross receipts to be levied and
collected as provided in this section for motion
picture shows, or in accordance with such regula-
tions of payments as may be made by the commis-
sioner of revenue. The tax levied in this subsec-
tion shall apply to all privately owned toll bridges,
including all charges made for all vehicles, freight
and passenger, and the minimum charge of twenty-
five cents (25c) for admission shall not apply to
bridge tolls.
(c) Counties shall not levy any license tax on
the business taxed under this section, but cities
and towns may levy a license tax not in excess of
one-half the base tax levied in this section. (1937,
c. 127, s. 105, c. 366.)
§ 7880(35). Amusements — circuses, menageries,
wild west, dog and/or pony shows, etc. — Every
person, firm, or corporation engaged in the busi-
ness of exhibiting performances, such as a circus,
menagerie, wild west show, dog and/or pony
show, or any other show, exhibition or perform-
ance similar thereto, or not taxed in other sections
of this article, shall apply for and obtain a state
license from the commissioner of revenue for the
privilege of engaging in such business, and pay
for such license the following tax for each day or
part of a day:
(a) Such shows and/or exhibitions traveling on
railroads and requiring transportation of:
Not more than two cars $ 30.00
Three to five cars, inclusive 45.00
Six to ten cars, inclusive 90.00
Eleven to twenty cars, inclusive 125.00
Twenty-one to thirty cars, inclusive 175.00
Thirty-one to fifty cars, inclusive 250.00
Over fifty cars 30O.00
(b) Such shows and/or exhibitions traveling by
automobiles, trucks, or other vehicles, other than
railroad cars, and requiring transportation by:
Not over two vehicles $ 7.50
Three to five vehicles 10.00
Six to ten vehicles 15.00
Eleven to twenty vehicles 25.00
Twenty-one to thirty vehicles 45.00
Thirty-one to fifty vehicles 60.00
Fifty-one to seventy-five vehicles 75.00
Seventy-six to one hundred vehicles 100.00
Over one hundred vehicles, per vehicle in
excess thereof 5.00
It is the intent of this subsection that every ve-
hicle used in transporting circus property or per-
sonnel, whether owned by the circus or by others,
shall be counted in computing the tax.
(c) Each side show, curiosity show, or other
similar show, exhibiting on the same or contigu-
ous lots with a circus, the tax shall be fifteen dol-
lars ($15.00) per day or part of a clay.
(d) Every person, firm, or corporation by whom
any show or exhibition taxed under this section is
owned or controlled shall file with the commis-
sioner of revenue, not less than five days before
entering this state for the purpose of such exhibi-
tions or performances therein, a statement, under
oath, setting out in detail such information as may
be required by the commissioner of revenue cov-
ering the places in the state where exhibitions or
performances are to be given, the character of the
exhibition, the mode of travel, the number of cars
or other conveyances used in transferring such
shows, and such other and further information as
may be required. Upon receipt of such statement,
the commissioner of revenue shall fix and deter-
mine the amount of state license tax with which
such person, firm, or corporation is chargeable,
shall endorse his findings upon such statement,
and shall transmit a copy of such statement and
findings to each such person, firm, or corporation
to be charged, to the sheriff or tax collector of
each county in which exhibitions or performances
are to be given, and to the division deputy of the
commissioner of revenue, with full and particular
instructions as to> the state license tax to be paid.
Before giving any of the exhibitions of perform-
ances provided for in such statement, the person,
firm, or corporation making such statement shall
pay the commissioner of revenue the tax so fixed
and determined. If one or more of such exhibi-
tions or performances included in such statement
and for which the tax has been paid shall be can-
celed, the commissioner of revenue may, upon
proper application made to him, refund the tax
for such canceled exhibitions or performances.
Every such person, firm, or corporation shall give
to the commissioner of revenue a notice of not
less than five days before giving any of such exhi-
bitions or performances in each county.
(e) The sheriff of each county in which such ex-
hibitions or performances are advertised to be ex-
hibited shall promptly communicate such informa-
tion to the commissioner of revenue; and if the
statement required in this section has not been filed
as provided for herein, or not filed in time for cer-
tified copies thereof, with proper instructions, to
be transmitted to the sheriffs of the several coun-
ties and the division deputy commissioner, the
commissioner of revenue shall cause his division
deputy to attend at one or more points in the state
where such exhibitions or performances are ad-
vertised or expected to exhibit, for the purpose of
securing such statement prescribed in this section,
of fixing and determining the amount of state li-
cense tax with which such person, firm, or corpo-
ration is taxable, and to collect such tax or give
proper instructions for the collection of such tax.
(f) Every such person, firm, or corporation by
whom or which any such exhibition or perform-
ance described in this section is given in any
county, city, or town, or within five miles thereof,
wherein is held an annual agricultural fair, during
the week of such annual agricultural fair, shall pay
[ 245 ]
§ 7880(36)
TAXATION
§ 7880(36)
a state license of one thousand dollars ($1,000.00)
for each exhibition or performance in addition
to the license tax first levied in this section, to be
assessed and collected by the commission of reve-
nue or his duly authorized deputy.
(g) The provisions of this section, or any other
section of this act, shall not be construed to al-
low, without the payment of the tax imposed in
this section, any exhibition or performance de-
scribed in this section for charitable, benevolent,
educational, or any other purpose whatsoever, by
any person, firm, or corporation who is engaged
in giving such exhibitions or performances, no
matter what terms of contract may be entered into
or under what auspices such exhibitions or per-
formances are given. It being the intent and pur-
pose of this section that every person, firm, or
corporation who or which is engaged in the busi-
ness of giving such exhibitions or performances,
whether a part or all of the proceeds are for chari-
table, benevolent, educational, or other purposes
or not, shall pay the state license tax imposed in
this section.
(h) Every such person, firm, or corporation
who shall give any of such exhibitions or perform-
ances mentioned in this section within this state,
before the statement provided for has been filed
with the commissioner of revenue, or before the
state license tax has been paid, or which shall,
after the filing of such statement, give any such
exhibition or performance taxable at a higher rate
than the exhibition or performance authorized by
the commissioner of revenue upon the statement
filed, shall pay a state license tax of fifty per cent
(50%) greater than the tax hereinbefore pre-
scribed, to be assessed and collected either by the
commissioner of revenue or by his division deputy.
Upon all performances taxable under this sec-
tion there is levied, in addition to the license tax
levied in this section, a tax upon the gross receipts
of such business at the rate of tax levied in Arti-
cle V, Schedule E, of this act [§ 7880(156)a et
seq.] upon retail sales of merchandise. The li-
cense tax herein levied shall be treated as an ad-
vance payment of the tax upon gross receipts
herein levied, and the license tax shall be applied
as a credit upon or advance payment of the gross
receipts tax. The commissioner of revenue may
adopt such regulations as may be necessary to ef-
fectuate the provisions of this section and shall
prescribe the form and character of reports to be
made, and shall have such authority of supervi-
sion as may be necessary to effectuate the pur-
poses of this act.
(i) In lieu of the tax levied in section 7880(83),
each circus, or other form of amusement taxed
under this section, advertising by means of out-
door advertising displays, a bill posting or as oth-
erwise defined in section 7880(83), shall pay a tax
of one hundred dollars ($100.00) for a state-wide
license for the privilege of advertising in this man-
ner, said tax to be in addition to the other taxes
levied in this section.
(j) Counties, cities, and towns may levy a li-
cense tax on the business taxed under this section
not in excess of one-half of the license tax levied
by the state, but shall not levy a parade tax or a
tax under subsection (i) of this section. (1937,
c. 127, s. 106.)
§ 7880(36). Amusements — carnival companies,
etc. — Every person, firm, or corporation engaged
in the business of a carnival company or a
show of like kind, moving pictures and vaude-
ville shows, museums and menageries, merry-go-
rounds, ferris wheels, riding devices, and other like
amusements and enterprises, conducted for profit,
under the same general management, or an aggre-
gate of shows, amusements, eating places, riding
devices, or any of them operating together on the
same lot or contiguous lots or streets, traveling
from place to place, whether owned and actually
operated by separate persons, firms, or corporations
or not, filling week-stand engagements, or giving
week-stand exhibitions, under canvas or not, shall
apply for and obtain from the commissioner of
revenue a state license for the privilege of engag-
ing in such business or amusement, and shall pay
for such license for each week, or part of a week,
a tax of two hundred dollars ($200.00) : Provided,
that when a person, firm, or corporation exhibits
only riding devices which are not a part of, nor
used in connection with, any carnival company
the tax shall be ten dollars ($10.00) per week for
each such riding device, and no additional tax
shall be levied by counties, cities and towns un-
der this proviso.
(a) This section shall not repeal any local act
prohibiting any of the shows, exhibitions, or per-
formances mentioned in this section, or to limit the
authority of the board of county commissioners
of any county, or the board of aldermen or other
governing body of any city or town, in prohibit-
ing such shows, exhibitions, or performances.
If the commissioner of revenue shall issue a
state license for any such show, exhibition, or per-
formance in any county or municipality having a
local statute prohibiting the same, then the said
state license shall not authorize such show, exhi-
bition, or performance to be held in such county
or municipality, but the commissioner of revenue
shall refund, upon proper application, the tax paid
for such state license.
(b) No person, firm, or corporation, nor any
aggregation of same, giving such shows, exhibi-
tions, or performances, shall be relieved from the
payment of the tax levied in this section, regard-
less of whether or not the state derives a benefit
from same. Nor shall any carnival operating or
giving performances or exhibitions, in connection
with any fair in North Carolina, be relieved from
the payment of tax levied in this section. It is the
intent and purpose of this section that every per-
son, firm, or corporation, or aggregation of same
which is engaged in the giving of such shows, ex-
hibitions, performances, or amusements, whether
the whole or a part of the proceeds are for chari-
table, benevolent, educational, or other purposes
whatsoever, shall pay the state license taxes pro-
vided for in this section.
It is not the purpose of this act to discourage
agricultural fairs in the state, and to further this
cause, no carnival company will be allowed to
play a "still date" in any county where there is a
regularly advertised agricultural fair, fifteen days
prior to the dates of said fair. An agricultural
fair shall be construed as meaning one that has
operated at least one year prior to the passage of
this act.
[246]
§ 7880(37)
TAXATION
§ 7880(38)
Upon all performances taxable under this sec-
tion there is levied, in addition to the license tax
levied in this section, a tax upon the gross receipts
of such business at the rate of tax levied in Arti-
cle V, Schedule E, of this act [§ 7880(156)a et
seq.] upon retail sales of merchandise. The li-
cense tax herein levied shall be treated as an ad-
vance payment of the tax upon the gross receipts
herein levied, and the license tax shall be applied
as a credit upon or advance payment of the gross
receipts tax. The commissioner of revenue may
adopt such regulations as may be necessary to ef-
fectuate the provisions of this section and shall
prescribe the form and character of reports to be
made, and shall have such authority or supervision
as may be necessary to effectuate the purposes of
this act.
Nothing herein contained shall prevent the
American Legion Posts in North Carolina from
holding fairs or tobacco festivals on any dates
which they may select, provided said fairs and fes-
tivals have heretofore been held as annual events.
(c) Counties may levy and collect the same li-
cense tax as the state, and cities and towns may
levy a license tax not in excess of the sum of two
hundred dollars ($200.00). (1937, c. 127, s. 107.)
§ 7880(37). Amusements — certain exhibitions,
performances, and entertainments exempt from li-
cense tax. — All exhibitions, performances, and en-
tertainments, except as in this article expressly
mentioned as not exempt, produced by local talent
exclusively, and for the benefit of religious, chari-
table, benevolent, or educational purposes, and
where no compensation is paid to such local tal-
ent shall be exempt from the state license tax.
(1937, c. 127, s. 108.)
§ 7880(38). Attorneys-at-law and other profes-
sions.— Every practicing attorney-at-law, practic-
ing physician, veterinary surgeon, osteopath, chi-
ropractor, chiropodist, dentist, oculist, optician,
optometrist, any person practicing any ■ profes-
sional art of healing for a fee or reward, civil
engineer, electrical engineer, mining engineer, me-
chanical engineer, architect and landscape archi-
tect, photographer, canvasser for any photogra-
pher, agent of a photographer in transmitting pic-
tures or photographs to be copied, enlarged, or
colored (including all persons enumerated in this
section employed by the state, county, municipal-
ity, a corporation, firm, or individual), and every
person, whether acting as an individual, as a
member of a partnership, or as an officer and/or
agent of a corporation, who is engaged in the busi-
ness of selling or offering for sale, buying or of-
fering to buy, negotiating the purchase, sale, or
exchange of real estate, or who is engaged in the
business of leasing or offering to lease, renting or
offering to rent, or of collecting any rents as
agents for another for compensation, or who is
engaged in the business of soliciting and/or nego-
tiating loans on real estate as agent for another for
a commission, brokerage and/or other compensa-
tion, shall apply for and obtain from the commis-
sioner of revenue a state-wide license for the priv-
ilege of engaging in such business or profession,
or the doing of the act named, and shall pay for
■such license twenty-five dollars ($25.00).
Every person engaged in the public practice of
accounting as a principal, or as a manager of the
business of public accountant, shall pay for such
license twenty-five dollars ($25.00), and in addi-
tion shall pay a license of twelve and fifty one-
hundredths ($12.50) dollars for each person em-
ployed who is engaged in the capacity of super-
vising or handling the work of auditing, devising
or installing systems of accounts.
Every licensed mortician or embalmer shall in
like manner apply for and obtain from the com-
missioner of revenue a state-wide license for prac-
ticing his profession, whether for himself or in the
employ of another, of ten dollars ($10.00).
(a) Only one-half of the tax levied in this sec-
tion shall he collected from those persons whose
gross receipts from the business or profession for
the preceding year did not exceed one thousand
dollars ($1,000.00).
(b) License revocable for failure to pay tax.
Whenever it shall be made to appear to any judge
of the superior court that any person practicing
any profession for which the payment of a license
tax is required by this section has failed, or fails,
to pay the professional tax levied in this section,
and execution has heen issued for the same by
the commissioner of revenue and returned by the
proper officer "no property to be found," or re-
turned for other cause without payment of the tax,
it shall be the duty of the judge presiding in the
superior court of the county in which such person
resides, upon presentation therefor, to cause the
clerk of said court to issue a rule requiring such
person to show cause by the next term of court
why such person should not be deprived of license
to practice such profession for failure to pay such
professional tax. Such rule shall be served by the
sheriff upon said person twenty days before the
next term of the court, and if at the return term
of court such person fails to show sufficient cause,
the said judge may enter a judgment suspending
the professional license of such person until all
such tax as may be due shall have been, and such
order of suspension shall be binding upon all
courts, boards and commissions having authority
of law in this state with respect to the granting or
continuing of license to practice any such profes-
sion.
(c) Counties, cities, or towns shall not levy any
license tax on the business or professions taxed
under this section; and the state-wide license here-
in provided for shall privilege the licensee to en-
gage in such business or profession in every
county, city, or town in this state, except the same
shall not apply to photographers, canvassers of
any photographers, agents of a photographer in
transmitting pictures or photographs to be copied,
enlarged, or colored, as set out in the first para-
graph of this section, and counties, cities or towns
may levy a tax not in excess of that levied by the
state. (1937, c. 127, s. 109.)
Persons Making "Negatives" Are Photographers Subject
to License Tax. — To solicit persons to have their photo-
graphs taken, arrange for the sitting, and actually have the
camera present and take what is popularly called a pic-
ture, but in fact is a "negative," which is the outline of
the subject on glass, is engaging within the state in the
profession or business of photography within the meaning
of this section. Lucas v. Charlotte, 14 F. Supp. 163, 167.
Although the "negatives" are sent to another state for
development the assessment of the tax under this section on
photographers does not constitute an interference with or
burden upon interstate commerce. Id.
[ 247 ]
§ 7880(39)
TAXATION
§ 7880(45)
This section gives to each county and city the privilege
of levying a similar tax upon photographers. Lucas v.
Charlotte, 14 F. Supp. 163 165.
Discriminatory Statute Applying Only to Certain Real
Estate Brokers Is Unconstitutional. — Ch. 241, Public-Local
Laws of 1927, requiring real estate brokers and salesmen
in certain designated counties to be licensed by a real es-
tate commission on the basis of moral character and profi-
ciency in the public interest, and requiring the payment of
a license fee in addition to the license required by this sec-
tion, was held unconstitutional as discriminatory. State v.
Warren, 211 N. C. 75, 189 S. E. 108.
§ 7880(39). Detectives. — Every person, whether
acting as an individual, as a member of a partner-
ship, or as an officer and/or agent of a corpora-
tion, who is engaged in business as a detective or
what is ordinarily known as "secret service work,"
or who is engaged in the business of soliciting
such business, shall apply for and obtain from the
commissioner of revenue a state-wide license for
the privilege of engaging in such business, and
shall pay for such license a tax of twenty-five dol-
lars ($25.00): Provided, any such person regularly
employed by United States government, any state
or political subdivision of any state shall not be
required to pay license herein provided for. (1937,
c. 127, s. 110.)
§ 7880(41). Real estate auction sales. — (a)
Every person, firm, or corporation engaged in the
business of conducting auction sales of real estate
for profit or compensation shall apply for and ob-
tain from the commissioner of revenue a state-
wide license for the privilege of engaging in such
business in this state, and shall pay for such li-
cense a tax of two hundred and fifty dollars
($250.00).
(b) This section shall not apply to sales for
foreclosure of liens or sales made by order of
court.
(c) Counties, cities, and towns may levy a tax
on the business taxed under this section not in ex-
cess of twelve and fifty one-hundredths dollars
($12,50) for each sale conducted in the county, city,
or town: Provided, that the total tax levied by
any county, city, or town on said business during
any year shall not exceed twenty-five dollars
($25.00). (1937, c. 127, s. 111.)
§ 7880(42). Coal and coke dealers. — (a) Every
person, firm, or corporation, either as agent or
principal, engaged in and conducting the business
of selling coal or coke in carload lots, or in greater
quantities, shall be deemed a wholesale dealer, and
shall apply for and procure from the revenue com-
missioner a state license, and pay for such license
the sum of seventy-five dollars ($75.00) : Provided,
that if such wholesale dealer shall also sell coal
or coke in less than carload lots, he shall not be
subject to the retailer's license tax provided in
this section.
(b) Every person, firm, or corporation engaged
in and conducting the business of selling coal or
coke at retail shall apply for and procure from the
commissioner of revenue a state license and shall
pay for such license for each city or town in
which such coal or coke is sold or delivered, as
follows :
In cities or towns of less than 2,500 popula-
tion $10.00
In cities or towns of 2,500 and less than 5,000
population 15.00
In cities or towns of 5,000 and less than
10,000 population 25.00
In cities or towns of 10,000 and less than
25,000 population 50.00
In cities or towns of 25,000 and over 75.00
Dealers or peddlers in coal who sell in quanti-
ties of not more than five hundred pounds shall
pay a state license tax of five dollars ($5.00).
(c) No county shall levy any license tax on the
business taxed under this section, but cities and
towns may levy a license tax not in excess of that
levied by the state.
(d) The provisions of this section shall not ap-
ply to those engaged in mining coal upon their
own or leased property and selling the same either
at wholesale or retail: Provided further, that any
person, firm or corporation soliciting orders for
pool cars of coal to be distributed without profit
shall be subject to license tax. (1937, c. 127, s.
112.)
Cited in Atlantic Ice, etc., Co. v. Maxwell, 210 N. C. 723,
188 S. E- 381.
§ 7880(43). Collecting agencies. — Every person,
firm, or corporation engaged in the business of
collecting, for a profit, claims, accounts, bills,
notes, or other money obligations for others and of
rendering an account for same, shall be deemed
a collection agency, and shall apply for and re-
ceive from the commissioner of revenue a state li-
cense for the privilege of engaging in such busi-
ness, and pay for such license a tax of fifty dollars
($50.00).
(a) This section shall not apply to a regularly
licensed practicing attorney-at-law.
(b) Counties shall not levy any license tax on
the business taxed under this section, but cities
and towns may levy a license tax not in excess of
that levied by the state. (1937, c. 127, s. 113.)
§ 7880(44). Undertakers, embalmers and retail
dealers in coffins. — Every person, firm, or corpo-
ration engaged in the business of burying and/or
embalming the dead, or in the retail of coffins,
shall apply for and procure from the revenue com-
missioner a state license for transacting such busi-
ness within this state, and shall pay for such li-
cense the following tax:
In cities or towns of less than 500 popula-
tion $ 10.00
In cities or towns of 500 and less than 5,000
population 25j00
In cities or towns of 5,000 and less than
10,000 population 40.00
In cities or towns of 10,000 and less than
15,000 population 50.00
In cities or towns of 15,000 and less than
25,000 population 75.00
In cities or towns of 25,000 population or
over 100.00
This section shall not apply to a cabinet-maker
(who is not an undertaker) who makes coffins to
order.
No county shall levy any license tax on the busi-
ness taxed under this section, but cities and towns
may levy a license tax not in excess of that levied
by the state. (1937, c. 127, s. 114.)
§ 7880(45). Dealers in horses and mules. — <a)
Any person, firm, or corporation engaged in the.
[ 248 ]
§ 7880(46)
TAXATION
§ 7880(48)
business of buying and selling horses and/or
mules, and who continuously for the last three
years listed a poll or property for taxation in this
state, shall apply for and procure from the com-
missioner of revenue a state license for conducting
such business, and pay for such license a tax of
twelve dollars and fifty cents ($12.50), which
amount of tax, however, shall only be for the priv-
ilege of buying and/or selling one carload, and for
each additional carload purchased, an additional
tax of five dollars ($5.00) per car shall be paid
semi-annually to the commissioner of revenue.
(b) Every person, firm, or corporation engaged
in the business of buying and selling horses and/or
mules, who or which has not continuously for the
last three years listed a poll or property for taxa-
tion in this state, shall apply for and procure from
the commissioner of revenue a state license for
conducting such business, and pay for such license
a tax of fifty dollars ($50.00), which amount of
tax, however, shall only be for the privilege of
buying and/or selling one carload, and for each
additional carload purchased an additional tax of
ten dollars ($10.00) per car shall be paid semi-
annually to the commissioner of revenue.
(c) For the purpose of computing this tax,
twenty-five horses and/or mules shall be consid-
ered a carload, and for cars containing more than
this number the tax shall be twenty cents per head
for such horses and/or mules purchased under
subsection (a) of this section, and forty cents per
head for such horses and/or mules purchased un-
der subsection (b) of this section.
(d) The tax imposed in this section shall apply
to all purchases by such dealers, whether shipped
into this state by railroad or brought in otherwise.
(e) Every person, firm, or corporation engaged
in the business described in this section shall keep
a full, true, and accurate record of all sales, in-
voices, and freight bills covering such purchases
and sales of all horses and/or mules until such
sales, invoices, and freight bills have been checked
by a deputy commissioner of revenue.
(f) A separate license shall be required for each
county and for each place in each county where a
separate place of business is maintained: Provided,
however, any such person, firm, or corporation
engaging in such business described in this sec-
tion in more than one place or county in this state
may, upon the payment of one hundred and
twenty-five dollars ($125.00) to the commissioner
of revenue, procure a state-wide license, good in
any county of the state, and shall also pay the tax
herein provided for each carload.
(g) This section shall not apply to persons deal-
ing solely and exclusively in horses and/or mules
of their own raising, if such horses and/or mules
were raised in this state.
(h) Any person, firm, or corporation required
to procure from the commissioner of revenue a li-
cense under this section, who shall sell or offer
for sale, by principal or agent, any horse and/or
mule without having obtained such license, or
shall fail, neglect, or refuse to pay the taxes speci-
fied in this section when due and payable, shall,
in addition to other penalties imposed by this act,
be deemed guilty of a misdemeanor, and upon
conviction shall be fined one hundred dollars
($100.00) and/or imprisoned not less than thirty
days, in the discretion of the court.
(i) Counties, cities, and towns may levy a li-
cense tax on the business taxed under this sec-
tion not in excess of that levied by the state.
(1937, c. 127, s. 115.)
§ 7880(46). Phrenologists. — Any person en-
gaged in the practice of phrenology for compen-
sation shall procure from the commissioner of
revenue a state license for engaging in such prac-
tice, and shall pay for same a tax of one hundred
dollars ($100.00) for each county in which such
person does business.
Counties, cities, and towns may levy any license
tax on the business taxed in this section. (1937,
c. 327, s. 116.)
§ 7880(47). Bicycle dealers. — Any person, firm,
or corporation engaged in the business of buying
and/or selling bicycles, supplies and accessories
shall apply for and procure a state license from
the commissioner of revenue for the privilege of
transacting such business, and shall pay a tax for
such license as follows:
In cities or towns of less than 10,000 popu-
lation $10.00
In cities or towns of 10,000 and less than
20,000 population 20.00
In cities or towns of 20,000 population or
more 25.00
Counties shall not levy a license tax on the
business taxed under this section, but cities and
towns may levy a license tax not in excess of that
levied by the state. (1937, c. 127, s. 117.)
§ 7880(48). Pawnbrokers. — Every person, firm,
or corporation engaged in and conducting the
business of lending or advancing money or other
things of value for a profit, and taking as a pledge
for such loan specific articles of personal prop-
erty, to be forfeited if payment is not made with-
in a definite time, shall be deemed a pawnbroker,
and shall pay for the privilege of transacting such
business an annual license as follows:
In cities or towns of less than 10,000 pop-
ulation $200.00
In cities or towns of 10,000 and less than
15,000 population 250.00
In cities or towns of 15,000 and less than
20,000 population 300.00
In cities or towns of 20,000 and less than
25,000 population 350.00
In cities or towns of 25,000 population
or more 400.00
(a) Before such pawnbroker shall receive any
article or thing of value from any person or per-
sons, on which a loan or advance is made, he
shall issue a duplicate ticket, one to be delivered
to the owner of said personal property and the
other to be attached to the article, and said ticket
shall have an identifying number on the one side,
together with the date at the expiration of which
the pledger forfeits his right to redeem, and on
the other a full and complete copy of this sub-
section; but such pawnbroker may, after the
pledger has forfeited his right to redeem the spe-
cific property pledged, sell the same at public
auction, deducting from the proceeds of sale the
money or fair value of the thing advanced, the
[ 249 ]
§ 7880(49)
TAXATION
§ 7880(51)
interest accrued, and the cost of making sale, and
shall pay the surplus remaining to the pledger.
(b) Any person, firm, or corporation transact-
ing the business of pawnbroker without a license
as provided in this section, or violating any of the
provisions of this section, shall be guilty of a mis-
demeanor and fined not less than fifty dollars
($50.00) nor more than five hundred dollars
($500.00).
(c) Counties, cities, and towns may levy a li-
cense tax on the business taxed under this section
not in excess of that levied by the state. (1937,
c. 127, s. 118.)
§ 7880(49). Cash registers, adding machines,
typewriters, refrigerating machines, washing ma-
chines, etc. — Every person, firm, or corporation
engaged in the business of selling and/or deliver-
ing, and/or renting cash registers, typewriters,
adding or bookkeeping machines, billing machines,
check protectors or protectographs, kelvinators,
frigidaires, or other refrigerating machines, light-
ing systems, washing machines, mechanically or
electrically operated burglar alarms, addresso-
graph machines, multigraph and other duplicating
machines, vacuum cleaners, mechanically or elec-
trically operated oil burners and coal stokers, card
punching, assorting and tabulating machinery,
shall apply for and procure from the commis-
sioner of revenue a state license for each place
where such business is transacted in this state,
and shall pay for such license a tax of ten dollars
($10.00).
Counties, cities, and towns shall not levy a li-
cense tax on the business taxed in this section.
1(1937, c. 127, s. 119.)
§ 7880(50). Sewing machines. — (a) Every
person, firm, or corporation engaged in the busi-
ness of selling sewing machines within this state
shall apply for and obtain from the commissioner
of revenue a state-wide license for the privilege
of engaging in such business and shall pay for
such license a tax of one hundred dollars ($100.00)
per annum for each such make of machines sold
or offered for sale.
(b) In addition to the annual license tax im-
posed in sub-section (a) of this section, such per-
son, firm, or corporation engaged in the business
taxed under this section shall pay a tax at the
rate of tax levied in Article V, Schedule E, of this
act [§ 7880(156)a et seq.], on retail sales of mer-
chandise on the total receipts during the preced-
ing year from the sale, lease, or exchange of sew-
ing machines and/or accessories within the state,
which said tax shall be paid to the commissioner
of revenue at the time of securing the annual li-
cense provided for in sub-section (a) of this sec-
tion: Provided, that the tax on sales in the pre-
ceding year, levied in this sub-section, shall
apply only for the fiscal year ending May thirty-
first, one thousand nine hundred thirty-five: Pro-
vided further, that on and after June first, one
thousand nine hundred thirty-five, the additional
tax on sales levied in this sub-section shall be as-
sessed and collected under the provisions of arti-
cle V, Schedule E, of this act [§ 7880(156)a et
seq.], the same as the tax on the sales of other
merchandise.
(c) Any person, firm, or corporation obtaining
a license under the foregoing sections may em-
ploy agents and secure a duplicate copy of such
license for each such agent by paying a tax of ten
dollars ($10.00) to the commissioner of revenue.
Each such duplicate license so issued shall con-
tain the name of the agent to whom it is issued,
shall not be transferable, and shall license the li-
censee to sell or offer for sale only the sewing
machine sold by the holder of the original license.
(d) Any merchant or dealer who shall purchase
sewing machines from a manufacturer or a dealer
who has paid the license tax provided for in this
section may sell such sewing machines without
paying the annual state-wide license tax provided
for in sub-section (a), but shall procure the du-
plicate license provided for in sub-section (c) of
this section: Provided, that the tax imposed by
this sub-section shall !be the only tax required to
be paid by dealers in second-hand sewing ma-
chines exclusively.
(e) Any person, firm, or corporation who or
which violates any of the provisions of this sec-
tion shall, in addition to all other penalties im-
posed in this act, pay an additional tax of double
the state-wide annual license, and the duplicate
tax imposed in this section.
(f) No county shall levy a license tax on the
business taxed under this section, except that the
county may levy a license tax not in excess of five
dollars ($5.00) on each agent in a county who
holds duplicate license provided for in this sec-
tion.
Cities and towns shall not levy a license tax on
the business taxed under this section. (1937, c.
127, s. 120.)
§ 7880(51). Peddlers. — (a) Any person, firm,
or corporation who or which shall carry from
place to place any goods, wares, or merchandise,
and offer to sell or barter the same, or actually
sells or barters the same, shall be deemed a ped-
dler, except such person, firm, or corporation who
or which is a wholesale dealer, with an estab-
lished warehouse in this state and selling only to
merchants for resale, and shall apply for and pro-
cure from the commissioner of revenue a state li-
cense for the privilege of transacting such busi-
ness, and shall pay for such license the following
tax:
Peddler, on foot, for each county $10.00
Peddler, with horse or other animal, and
with or without vehicle, each county, for
each vehicle 15.00
Peddler, with vehicle propelled by motor or
other mechanical power, for each county,
for each vehicle 25.00
(b) Any person, firm, or corporation employing
the service of another as a peddler, whether on a
salary or commission basis, shall be liable for the
payment of taxes levied in this section: Provided,
however, any person peddling fruits, vegetables or
products of the farm shall pay a license tax of
twenty-five dollars ($25.00) per year, which li-
cense shall be state-wide. No county shall levy
an additional tax under this sub-section, but cities
and towns may levy a tax under this sub-section
equal to the state tax.
(c) Any person, firm, or corporation who or
which sells or offers to sell from a cart, wagon,
truck, automobile, or other vehicle operated over
and upon the streets and/or highways within this
250
§ 7880(53)
TAXATION
§ 7880(53)
state any fresh fruits and/or vegetables shall be
deemed a peddler within the meaning of this sec-
tion and shall pay the annual license tax levied
in sub-section (a) of this section with reference
to the character of vehicle employed. Any per-
son, firm, or corporation who or which sells or
offers for sale from any railway car fresh fruits
and/or vegetables shall be deemed a peddler with-
in the meaning of this section, and shall pay an
annual tax of twenty-five dollars ($25.00). Noth-
ing in this section shall apply to the sale of all
farm products raised on the premises owned or
occupied by the person, firm, or corporation, his
or its bona fide agent or employee selling same.
(d) Every itinerant salesman or merchant who
shall expose for sale, either on the street or in a
house rented temporarily for that purpose, any
goods, wares, or merchandise, bankrupt stock, or
fire stock, not being a regular merchant in such
county, shall apply for in advance and procure a
state license from the commissioner of revenue
for the privilege of transacting such business, and
shall pay for such license a tax of one hundred
dollars ($100.00) in each county in which he shall
conduct or carry on such business.
(e) Every person, firm, or corporation, not be-
ing a regular retail merchant in the state of North
Carolina, who shall display samples, goods, wares,
or merchandise in any hotel room, or in any house
rented or occupied temporarily, for the purpose
of securing orders for the retail sale of such
goods, wares, or merchandise so displayed, shall
apply for in advance and procure a state license
from the commissioner of revenue for the privi-
lege of displaying such samples, goods, wares, or
merchandise, and shall pay an annual privilege
tax of two hundred fifty dollars ($250.00), which
license shall entitle such person, firm or corpora-
tion to display such samples, goods, wares, or
merchandise in any county in this state.
(f) The provisions of this section shall not ap-
ply to any person, firm, or corporation who sells
or offers for sale books, periodicals, printed music,
ice, wood for fuel, fish, beef, mutton, pork, bread,
cakes, pies, products of the dairy, poultry, eggs,
livestock, or articles of their own individual man-
ufacture, but shall apply to medicines, drugs, or
articles assembled.
(g) The board of county commissioners of any
county -in this state, upon proper application, may
exempt from the annual license tax levied in this
section Confederate soldiers, disabled veterans of
the Spanish-American War, disabled soldiers of
the World War, who have been bona fide resi-
dents of this state for twelve or more months
continuously, and the blind, who have been bona
fide residents of this state for twelve or more
months continuously, widows with dependent chil-
dren; and when so exempted, the board of county
commissioners shall furnish such person or per-
sons with a certificate of exemption, and such
certificate shall entitle the holder thereof to ped-
dle within the limits of such county without pay-
ment of any license tax to the state.
(h) Counties, cities, or towns may levy a li-
cense tax on the business taxed under this section
not in excess of the annual license levied by the
state. But the board of county commissioners of
any county may levy a license tax on the business
taxed in this section not in excess of that levied
by the state for each unincorporated town or vil-
lage in the county with a population of one thou-
sand or more within a radius of one mile in which
such business is engaged in.
No county, city, or town shall levy any license
tax under this section upon the persons so ex-
empted in this section, nor upon drummers sell-
ing by wholesale: Provided, the Public-Local
Laws relating to any county or city in this state
in conflict with this section are hereby repealed.
(1937, c. 127, s. 121.) ^
Paragraphs (f) and (h) relate exclusively to privilege
taxes upon peddlers. State v. Bridgers, 211 N. C. 235, 238,
189 S. E- 869.
Subsection (h) Does Not Prohibit Levying of City Tax. —
A tax levied under the general authority given a city in its
charter, authorizing the levying of a tax upon trades and
businesses carried on within its corporate limits is not such
a tax prohibited by subsection (h) of this section. The pro-
hibition relates to license taxes levied "under this section."
The tax complained of was not levied "under this section."
State v. Bridgers, 211 N. C. 235, 239, 189 S. E. 869.
§ 7880(53). Contractors and construction com-
panies. — ■ (a) Every person, firm, or corporation
who, for a fixed price, commission, fee, or wage
offers or bids to construct within the state of
North Carolina any building, highway, street,
sidewalk, bridge, culvert, sewer or water system,
drainage or dredging system, electric or steam
railway, reservoir or dam, hydraulic or power
plant, transmission line, tower, dock, wharf, ex-
cavation, grading or other improvement or struc-
ture, or any part thereof, the cost of which ex-
ceeds the sum of ten thousand dollars ($10,000.00),
shall apply for and obtain from the commissioner
of revenue an annual state-wide license, and shall
pay for such license a tax of one hundred dollars
($100.00) at the time of or prior to offering or
submitting any bid on any of the above enumer-
ated projects.
(b) In addition to the tax levied in sub-section
(a) of this section, every person, firm, or corpo-
ration who, for a fixed price, commission, fee, or
wage, undertakes or executes a contract for the
construction, or who superintends the construc-
tion of any of the above enumerated projects,
shall before or at the time of entering into such
projects, and/or such contract, apply for and pro-
cure from the commissioner of revenue a state-
wide license, and shall pay for such license the
following tax:
When the total contract price or estimated cost
of such project is over:
$ 5,000 and not more than $ 10,000...$ 25.00
10,000 and not more than 50,000... 50.00
50,000 and not more than 100,000... 125.00
100,000 and not more than 250,000... 175.00
250,000 and not more than 500,000... 300.00
500,000 and not more than 750,000... 400.00
750,000 and not more than 1,000,000... 500.00
1,000,000 625.00
(c) The application for license under sub-section
(b) of this section shall be made to the commis-
sioner of revenue and shall be accompanied by
the affidavit of the applicant, stating the contract
price, if known, and if the contract price is not
known, his estimate of the entire cost of the said
improvement or structure, and if the applicant
proposes to construct only a part of said improve-
ment or structure, the contract price, if known, or
[ 251
§ 7880(53) a
TAXATION
§ 7880(56)
his estimated cost of the part of the project he
proposes to superintend or construct.
In the event the construction of any of the
above mentioned improvements or structures shall
be divided and let under two or more contracts
to the same person, firm, or corporation, the sev-
eral contracts shall be considered as one contract
for the purpose of this act, and the commissioner
of revenue shall collect from such person, firm, or
corporation the license tax herein imposed as if
only one contract had been entered into for the
entire improvement or structure.
(d) In the event any person, firm, or corpora-
tion has procured a license in one of the lower
classes provided for in sub-section (b) of this sec-
tion, and constructs or undertakes to construct or
to superintend any of the above mentioned im-
provements or structures or parts thereof, the
completed cost of which is greater than that cov-
ered by the license already secured, application
shall be made to the commissioner of revenue, ac-
companied by the license certificate held by the
applicant, which shall be surrendered to the com-
missioner of revenue, and upon paying the differ-
ence between the cost of the license surrendered
and the price of the license applied for, the com-
missioner of revenue shall issue to the applicant
the annual state-wide license applied for, showing
thereon that it was issued on the surrender of the
former license, and payment of the additional tax.
(e) No employee or sub-contractor of any per-
son, firm, or corporation who or which has paid
the tax herein provided for, shall be required to
pay the license tax provided for in this section
while so employed by such person, firm, or cor-
poration.
(f) Counties shall not levy any license tax on
the business taxed under this section, but cities
and towns may levy a license tax as a fee for a
builder's permit or otherwise not in excess of ten
dollars ($10.00) when the license provided for un-
der this section has been paid: Provided, that this
sub-section shall not be construed to prevent the
collection of building, electrical, and plumbing
inspection charges by municipalities to cover the
actual cost of said inspection.
(g) The tax under the section shall not apply
to the business taxed in section 7880(86). (1937,
c. 127, s. 122, c. 249, S. 5.)
§ 7880(53) a. Installing elevators and automatic
sprinkler systems. — Every person, firm, or corpo-
ration engaged in the business of selling or in-
stalling cable-hoist passenger or freight elevators,
or automatic sprinkler s}^stems shall apply for and
procure from the commissioner of revenue an an-
nual state-wide license for the transaction of such
business in this state, and shall pay for such li-
cense a tax of fifty dollars ($50.00). Counties,
cities, and towns may levy a tax on the business
taxed under this section not in excess of that lev-
ied by the state. (1937, c. 127, s. 122^.)
§ 7880(54). Mercantile agencies. — Every per-
son, firm, or corporation engaged in the regular
business of reporting the financial standing of
persons, firms, or corporations for compensation
shall be deemed a mercantile agency, and shall
apply for and procure from the commissioner of
revenue a state-wide license for the privilege of
transacting such business within this state, and
shall pay for such license a tax of five hundred
dollars ($500.00), the said tax to be paid by the
principal office in the state, and if no such prin-
cipal office in this state, then by the agent of such
mercantile agency operating in this state: Pro-
vided, the taxes for the mercantile agency doing
special service for not more than one industry
shall be two hundred fifty dollars ($250.00). Pro-
vided, further, that any mercantile agency whose
credit reporting business is local and confined to
the making of credit reports upon persons, firms,
or corporations in one city or county only, shall
pay an annual license tax of fifty dollars ($50.00).
(a) Any person representing any mercantile
agency which has failed to pay the license tax
iprovided for in this section shall be guilty of a
misdemeanor and fined and/or imprisoned in the
discretion of the court.
(b) Counties, cities, or towns shall not levy any
license tax under this section. (1937, c. 127, s.
123, c. 451.)
§ 7880(55). Gypsies and fortune tellers. — (a)
Every company of gypsies or strolling bands of
persons, living in wagons, tents, or otherwise, who
or any of whom trade horses, mules, or other
things of value, or receive reward for telling or
pretending to tell fortunes, shall apply for in ad-
vance and procure from the commissioner of rev-
enue a state license for the privilege of transact-
ing such things, and shall pay for such license a
tax of five hundred dollars ($500.00) in each
county in which they offer to trade horses, mules,
or other things of value, or to practice the telling
of fortunes or any of their crafts. The amount
of such license tax shall be recoverable out of any
property belonging to any member of such com-
pany.
(b) Any person or persons, other than those
mentioned in sub-section (a) of this section, re-
ceiving rewards for pretending to tell and/or tell-
ing fortunes, practicing the art of palmistry, clair-
voyance and other crafts of a similar kind, shall
apply for in advance and procure from the com-
missioner of revenue a state license for the priv-
ilege of practicing such arts or crafts, and shall
pay for such license a tax of two hundred dollars
($200.00) for each county in which they offer to
practice their profession or crafts: Provided, that
the tax levied under this section shall not apply
to fortune tellers or other artists practicing the
art of palmistry, clairvoyance, and other crafts of
a similar kind, when appearing under contract in
regularly licensed theatres taxed under section
7880(34).
(c) Any county, city, or town may levy a li-
cense tax on the business taxed under this section
not in excess of that levied by the state. (1937,
c. 127, s. 124.)
§ 7880(56). Lightning-rod agents. — (a) No
manufacturer or dealer, whether person, firm, or
corporation, shall sell, or offer for sale, in this
state any brand of lightning-rod, and no agent of
such manufacturer or dealer shall sell, or offer
for sale, or erect any brand of lightning-rod until
such brand has been submitted to and approved
by the insurance commissioner and a license
granted for its sale in this state. The fee for
such license, including seal, shall be fifty dollars
($50.00).
[ 252
§ 7880(57)
TAXATION
§ 7880(58)
(b) Upon written notice from any manufacturer
or dealer licensed under the preceding sub-section
of the appointment of a suitable person to act as
his agent in this state, and upon filing an applica-
tion for license upon the prescribed form, the in-
surance commissioner may, if he is satisfied as to
the reputation and moral character of such appli-
cant, issue him a license as general agent of such
manufacturer or dealer. Said license shall set
forth the brand of lightning-rod licensed to be
sold, and the fee for such license, including seal,
shall be fifty dollars ($50.00).
(c) Such general agent may appoint local
agents to represent him in any county in the state
by paying to the insurance commissioner a fee of
ten dollars ($10.00) for each such county. Upon
filing application for license of such local agent
on a prescribed form and paying a fee of three
dollars ($3.00) for each county in which said ap-
plicant is to operate, the insurance commissioner
may, if he is satisfied that such applicant is of
good repute and moral character, and is a suit-
able person to act in such capacity, issue him a
license to sell and erect any brand of lightning-
lod approved for sale by the general agent in such
county applied for.
(d) Each general agent shall submit to the in-
surance commissioner semi-annually, on January
thirty-first and July thirty-first, upon prescribed
forms, a sworn statement of gross receipts from
the sale of lightning-rods in this state during the
preceding six months, and pay a tax thereon of
eighty (80) cents on each one hundred dollars
($100.00), such returns to be accompanied by an
itemized list showing each sale, the county in
which sold, and the agent making the sale.
(e) No county, city, or town shall levy a li-
cense or privilege tax exceeding twenty dollars
($20.00) on any dealer having a general office or
selling from a receiving point.
(f) Licenses issued under this section are not
transferable, are valid for only one person, and
revocable by the insurance commissioner for good
cause after a hearing.
(g) Every agent licensed under this section
shall, upon demand, exhibit his license to any of-
ficer of the law or citizen, and any person, firm,
or corporation acting without a license or selling
or offering for sale any brand of lightning-rod not
approved by the insurance commissioner, or oth-
erwise violating any of the provisions of this act,
shall be punished by a fine of not more than two
hundred dollars ($200.00) and/or six months im-
prisonment for each offense. (1937, c. 127, s.
125.)
§ 7880(57). Hotels.— Every person, firm, or
corporation engaged in the operation of any ho-
tel in this state shall apply for and procure from
the commissioner of revenue a state license for
the privilege of transacting such business, and
shall pay for such license the following tax:
(a) For hotels operating on the American plan
for rooms in which rates per person per day are:
Less than two dollars $ .60
Two dollars and less than three dollars 90
Three dollars and less than four .dollars and
fifty cents , 1.80
Four dollars and fifty cents and less than
six dollars 4.20
[25
Six dollars and less than seven dollars and
fifty cents 5.40
Seven dollars and fifty cents and less than
fifteen dollars 6.00
Over fifteen dollars 7.20
(b) For hotels operating on the European plan
for rooms in which the rates per person per day
are:
Less than two dollars $1.25
Two dollars and less than three dollars 3.00
Three dollars and less than four dollars and
fifty cents 4.50
Four dollars and fifty cents and less than
six dollars 5.50
Six dollars and less than seven dollars and
fifty cents 6.50
Seven dollars and fifty cents and less than
ten dollars 7.50
Over ten dollars 8.50
(c) The office, dining-room, one parlor, kitchen
and two other rooms shall not be counted when
calculating the number of rooms in the hotel.
(d) Only one-half of the annual license tax lev-
ied in this section shall be levied or collected
from resort hotels and boarding houses which are
open for only six months or less in the year:
Provided, that the minimum tax under any sched-
ule in the section shall be five dollars ($5.00).
(e) Counties shall not levy any license tax on
the business taxed under this section, but cities.
and towns may levy a license tax not in excess of
one-half of the base tax levied by the state.
(1937, c. 127, s. 126.)
§ 7880(57) a. Tourist homes and tourist camps.
— (a) Every person, firm, or corporation engaged
in the business of operating a tourist home, tour-
ist camp, or similar place advertising in any man-
ner for transient patronage, or soliciting such
business, shall apply for and procure from the
commissioner of revenue a state license for the
.privilege of transacting such business and shall
pay the following tax:
Homes or camps having five rooms or less, ten
dollars ($10.00) ; homes or camps having more
than five rooms, two dollars ($2.00) per room.
For the purpose of this section, the sitting-room,
dining-room, kitchen, and rooms occupied by the
owner or lessee of the premises, or members of
his family, for his or their personal or private use,
shall not be counted in determining the number
of rooms for the basis of the tax. The tax here-
in levied shall be in addition to any tax levied in
section 7880(58) for the sale of prepared food.
(b) Counties shall not levy any license tax on
the business taxed under this section, but cities
and towns may levy a license tax not in excess of
one-half of the base tax levied by the state.
(1937, c. 127, s. 126^.)
§ 7880(58). Restaurants. — Every person, firm,
or corporation engaged in the business of operat-
ing a restaurant, cafe, cafeteria, hotel, with dining
service on the European plan, drug store, or other
place where prepared food is sold, shall apply for
and procure from the commissioner of revenue a
state license for the privilege of transacting such
business. The tax for such license shall be based
on the number of persons provided for with
chairs, stools, or benches, and shall be one dollar
3]
§ 7880(59)
TAXATION
§ 7880(60) a
($1.00) per person, with a minimum tax of five
dollars ($5.00) : Provided, that the tax levied in
this paragraph shall not apply to industrial plants
maintaining a non-profit restaurant, cafe or cafe-
teria solely for the convenience of its employees.
(a) All other stands or places where prepared
food is sold as a business, and drug stores, serv-
ice stations, and all other stands or places where
prepared sandwiches only are served, shall pay a
tax of five dollars ($5.00).
(b) Counties shall not levy any license tax on
the business taxed under this section, but cities
and towns may levy a license tax not in excess
of one-half of the base tax levied by the state.
(1937, c. 127, s. 127.)
§ 7880(59). Cotton compresses. — Every per-
son, firm, or corporation engaged in the business
of compressing cotton shall pay an annual license
tax of three hundred dollars ($300.00) on each
and every compress.
Counties shall not levy any license tax on the
business taxed under this section, but cities and
towns may levy a license tax not in excess of that
levied by the state. (1937, c. 127, s. 128.)
§ 7880(60). Billiard and pool tables, and bowl-
ing alleys. — Every person, firm, or corporation
who shall rent, maintain, own a building wherein
there is a table or tables at which billiards or pool
is played, whether operated by slot or otherwise,
shall apply for and procure from the commis-
sioner of revenue a state license for the privilege
of operating such billiard or pool tables, and shall
pay for such license a tax for each table as fol-
lows:
Tables measuring not more than 2 feet wide
and 4 feet long $ 5.00
Tables measuring not more than 2^ feet
wide and 5 feet long 10.00
Tables measuring not more than 3 feet wide
and 6 feet long 15.00
Tables measuring not more than 3^ feet
wide and 8 feet long 20.00
Tables measuring more than 3^ feet wide
and 8 feet long 25.00
Every person, firm, or corporation who shall
rent, maintain, own a building wherein there is a
bowling alley or alleys of like kind shall apply for
and procure from the commissioner of revenue a
state license for the privilege of operating such
bowling alley or alleys, and shall pay for such li-
cense a tax of twelve and fifty one-hundredths
dollars ($12.50) for each alley kept or operated:
Provided, each such billiard or pool table so li-
censed shall receive a number and receipt from
the commissioner of revenue when the license is
issued, and it shall be the duty of each operator
to attach said numbered license to said table or
machine and shall display the same at all times.
Failure to have such license and receipt on dis-
play attached to said machine or table shall be
prima facie evidence that the tax has not been
paid hereunder.
(a) This section shall not apply to fraternal or-
ganizations having a national charter, American
Eegion Posts, Young Men's Christian Associ-
ations, and Young Women's Christian Associa-
tions.
(b) The commissioner of revenue shall not is-
sue a license under this section to any person,
[2
firm, or corporation to maintain a billiard or pool
table or bowling alley outside of the corporate
limits of incorporated cities or towns, except with
the approval of the board of county commission-
ers of the county for which the application is
made, and all applications for such licenses are
hereby required to be filed with such board of
county commissioners at least seven days before
being acted upon, and notice thereof published in
some newspaper published in the county once a
week for two weeks, or if no newspaper is pub-
lished in such county, then posted at the court-
house door and three other public and conspicu-
ous places in the community where the license is
to be exercised for two weeks prior to the action
of the board of county commissioners thereon.
(c) If the commissioner of revenue shall have
issued any such state license to any person, firm,
or corporation to operate any billiard or pool ta-
bles, bowling alley or alleys in any city or town,
the board of aldermen or other governing body of
such city or town shall have the right at any time,
and notwithstanding the issuance of such state li-
cense, to prohibit any billiard or pool tables,
bowling alley or alleys of like kind within its lim-
its, unless otherwise provided in its charter; and
in the event any city or town shall exercise the
right to prohibit the keeping and operation of
such billiard or pool tables, bowling alley or alleys
of like kind, the commissioner of revenue shall
refund the proportion of the tax thereof during
the time which the right is not allowed to be ex-
ercised bears to the time for which the tax is paid.
(d) Counties may levy a license tax on the
business taxed under this section upon such bil-
liard or pool tables, bowling alleys as are located
outside of incorporated cities or towns, and cities
and towns may levy a license tax upon such as
are within the city limits, but in neither case shall
the license tax so levied be in excess of the tax
levied by the state. (1937, c. 127, s. 129.)
§ 7880(60) a. Merchandising or vending ma-
chines.— Every person, firm, or corporation own-
ing or maintaining any place of business or other
place wherein or in connection with which is op-
erated or located any machine in which is kept
any article to be purchased by depositing any
coin or thing of value, and for which may be had
any article of merchandise, shall apply for and
procure from the commissioner of revenue for the
privilege of operating any and every such ma-
chine, and shall pay for such license the following
tax:
Any such machine, except as hereinafter
provided, that requires a deposit of five
cents or less $10.00
Five cents and less than ten cents 20.00
Ten cents and not more than twenty cents. . 40.00
More than twenty cents 80.00
(a) Drinking-cup machines, and machines vend-
ing food, including candy, peanuts and other food
products or chewing gum, which do not require
the deposit of a coin in excess of five cents (5c)
shall not be subject to the foregoing schedule, and
shall not be subject to any license tax per ma-
chine: Provided, however, any person, firm, or
corporation engaged in the business of operating
such machines shall pay an annual operator's li-
cense tax of one hundred dollars ($100.00). The
54 ]
§ 7880(61)
TAXATION
§ 7880(61)
applicant for such operator's license tax shall fur-
nish to the commissioner a list of such machines
and information concerning the food, merchan-
dise or service rendered in connection with the
operation thereof, together with such other infor-
mation in connection therewith as shall be re-
quired by the commissioner. Such operator's li-
cense tax shall be in lieu of any license tax per
machine on the vending or service machines re-
ferred to in this classification, and such operator's
license tax shall be levied and collected only by
the commissioner of revenue of the state. Weigh-
ing machines requiring a deposit of one cent shall
pay a tax of two dollars and fifty cents ($2.50).
(b) This section shall not apply to any machine
not delivering merchandise of the value of the
coin deposited: Provided, however, that it shall
apply to weighing machines where a deposit of
five cents (5c) or more is required, and to ma-
chines wherein may be seen any picture and re-
quires a deposit of not less than five cents (5c),
which said weighing machines or picture ma-
chines shall be subject to the foregoing schedule
of license taxes; and provided further, that this
section shall apply to machines wherein or in con-
nection with the operation of which may be heard
any music by depositing therein any coin or thing
of value, which said music machines, however,
shall be subject to an annual license tax of ten
dollars ($10.00) for each of such machines requir-
ing a deposit of less than five cents (5c); ten dol-
lars ($10.00) for each of such machines requiring
a deposit of five cents (5c) and less than ten cents
(10c), and forty dollars ($40.00) for each of such
machines requiring a deposit of ten cents (10c)
and not more than twenty cents (20c) ; eighty dol-
lars ($80.00) for each of such machines requiring
a deposit of more than twenty cents (20c).
(c) Where machines taxable under this section
are so constructed as to be capable of receiving
multiple deposits at one time, or to permit the in-
sertion of more than one coin at one time, to pro-
duce a series of operations, then the maximum
number of deposits which said machine is capable
of so receiving shall be the basis on which the li-
cense tax on such machine shall be determined
under the schedule herein provided.
(d) None of the taxes provided in this section
shall apply to any machine in the operation of
which is involved any element of skill or chance
or in connection with the operation of which
there is given or allowed any premium, prize,
coupon, reward, chance, refund or rebate.
(e) This section shall not apply to any auto-
matic locker used as a depository for parcels,
clothing or luggage, nor to vending or merchan-
dising machines owned and operated by any re-
tail merchant in his own place of business for de-
livering merchandise of the market value of the
coin deposited, unless trade checks or tokens,
whether or not redeemable or of any value, are
given in addition to merchandise, in which event
the tax herein provided shall apply; nor shall it
apply to slot machines from which drinking cups
are delivered at not more than one cent (lc) per
cup, nor to penny food or chewing gum vending
machines, nor to any penny weighing machines,
which said penny drinking cup, weighing and food
or chewing gum vending machines shall be ex-
empt from license taxes.
(f) In making application for license under this
section the applicant shall specify the manufac-
turer's serial number of the machine for which li-
cense is desired, together with a description of the
machine, the merchandise offered for sale thereby
and the amount of deposit required by or in con-
nection with the operation of such machine. Each
license shall carry the serial number and a de-
scription of the merchandise sold by said machine
to correspond with that on the application. No
such license shall be transferable to any other ma-
chine. It shall be the duty of the person in whose
place of business the machine is located to see
that the proper state license is attached to the ma-
chine before its operation commences. Failure to
do so shall make such person liable for the addi-
tional tax imposed under section 7880(107).
(g) If any person, firm, or corporation shall fail,
neglect or refuse to comply with the terms and
provisions of this section and shall fail to attach
the proper state license to any machine or appa-
ratus as herein provided, the commissioner of
revenue, or his agents or deputies shall forthwith
seize and remove, or order removed any such ma-
chine or machines, and shall hold the same until
the provisions of this section shall have been com-
plied with.
(h) Nothing in this section shall be construed
to relieve the owner of any such machine or ap-
paratus of liability for the tax herein imposed.
(i) Sales of merchandise in the merchandising
or vending machines herein referred to shall be
subject to the provisions of Article V, Schedule
E, of this act ['§ 7880(l56)a et seq.].
(j) Counties may levy a license tax on the busi-
ness taxed in this section upon such machines,
and cities or towns may levy a tax on such ma-
chines within their limits, but in neither case shall
the tax so levied exceed one-half the tax levied by
the state. (1937, c. 127, s. 130, c. 249, s. 2.)
§ 7880(61). Slot machines and slot locks. —
Every person, firm, or corporation owning, operat-
ing, or maintaining any place of business or other
place wherein, or in connection with which, is op-
erated or located any machine operated by a slot
wherein is deposited any coin or thing of value, ex-
cept those enumerated in sections 7880(60) and
7880(60)a and toilet locks and telephone slot ma-
chine shall apply for and procure from the com-
missioner of revenue a state-wide license for the
privilege of operating each and every such machine,
and shall pay for such license the following tax:
Any such machine, except as hereinafter
provided, that requires a deposit of less
than five cents $ 25.00
Five cents and less than ten cents 50.00
Ten cents and not more than twenty cents. . 100.00
More than twenty cents 150.00
Provided further, that any such machine men-
tioned in this section giving or equipped to give
trade checks, tokens, or similar articles or devices,
whether redeemable or having any value or not,
or whether given in addition to merchandise or
not, shall require payment as in the above
schedule, except the minimum tax on any such
machine shall be twenty-five dollars ($25.00) :
Provided further, that the tax on checker-board
devices operated by slot machines and requiring
[255 ]
§ 7880(62)
TAXATION
§ 7880(63)
deposits of not more than five cents (5c) shall be
five dollars ($5.00).
(a) No machine shall be licensed under this sec-
tion unless said machine shall bear a permanently
attached identifying serial number, and in making
application for license under this section, the appli-
cant shall specify the manufacturer's serial num-
ber of the machine for which license is desired.
The license shall carry the serial number to cor-
respond with that on the application, and no such
license shall be transferable to any other machine.
It shall be the duty of the person in whose place
of business the machine is operated or located to
see that the proper state license is attached to the
bottom of the machine before its operation shall
commence. Failure to do so shall make such per-
son liable for the additional tax imposed in sec-
tion 7880(107).
(b) Upon application being made for a license
to operate any machine or apparatus under this
section, the commissioner of revenue is hereby
authorized to presume that the operation of such
machine or apparatus is lawful, and when a state
license has been issued for the operation thereof,
the sum paid for such state license shall not be re-
funded, notwithstanding that the operation of such
machine or apparatus shall afterwards be pro-
hibited: Provided further, that it shall be within
the discretion of the commissioner of revenue as
to whether he shall issue any duplicate license un-
der this section when it is represented to him that
the original license has been lost, misplaced, de-
stroyed, or otherwise left the possession of the
licensee.
(c) If any person, firm, or corporation shall fail,
neglect, or refuse to comply with the terms and
provisions of this section, and shall fail to attach
the proper state license to any machine or appara-
tus as herein provided, the commissioner of reve-
nue, or his agents or deputies, shall forthwith seize
and remove, or order removed, such machine or
machines, and the commissioner of revenue or his
agents or deputies are hereby empowered and au-
thorized to seize, confiscate, and destroy all such
machines.
(d) Nothing in this section shall be construed to
relieve the owner of any such machine or appara-
tus of liability for the tax.
(e) For the purpose of determining the amount
of license tax payable hereunder on machines de-
signed to use coins of different denominations, the
coin of maximum denomination which may be de-
posited in any machine shall be the base upon
which the license tax shall be levied and collected.
(f) Counties may levy a license tax on the busi-
ness taxed in this section upon slot machines, and
cities or towns may levy a tax on such machines
within their limits: Provided, that any county, city
or town may levy a tax in an amount not greater
than that which may be levied by the state herein;
and provided further, that no county, city or town
shall issue a license hereunder until the applicant
for same shall exhibit the license required by the
state hereunder. (1937, c. 127, s. 130^.)
§ 7880(62). Bagatelle tables, merry-go-rounds,
etc. — (a) Every person, firm, or corporation that is
engaged in the operation of a bagatelle table,
merry-go-round or other riding devices, hobby- |
r 25
horse, switchback railway, shooting gallery, swim-
ming pool, skating rink, other amusement devices
of a like kind, or a place for other games or play
with or without name (unless used solely and ex-
clusively for private amusement or exercise), at a
permanent location, shall apply for and procure
from the commissioner of revenue a state license
for the privilege of operating such objects of
amusement, and shall pay for each such subject
enumerated the following tax:
In cities or towns or less than 10,000 popu-
lation $ 10.00
In cities or towns of 10,000 population and
over 25.00
(b) Counties, cities or towns may levy a license
tax on the business taxed under this section not
in excess of that levied by the state. (1937, c. 127,
s. 131.)
§ 7880(63). Security dealers. — (a) Every person,
firm, or corporation who or which is engaged in
the business of dealing in securities as defined in
"An act to provide laws governing the sale of
stocks, bonds, and other securities in the state of
North Carolina," etc., or who or which maintains
a place for or engaged in the business of buying
and/or selling shares of stock in any corporation,
bonds, or any other securities on commission or
brokerage, shall apply for and procure from the
commissioner of revenue a state license for the
privilege of transacting such business, and shall
pay for such license the following tax:
In cities or towns of less than 5,000 popula-
tion $ 25.00
In cities or towns of 5,000 and less than
10,000 population 50.00
In cities or towns of 10,000 and less than
15,000 population 100.00
In cities or towns of 15,000 population and
less than 25,000 200.00
In cities or towns of 25,000 population and
above 300.00
(b) Every dealer, as defined herein, who shall
maintain in the state of North Carolina more than
one office for dealing in securities, as hereinbefore
defined, shall apply for and procure from the com-
missioner of revenue a license for the privilege of
transacting such business at each such office, and
shall pay for such license the same tax as herein-
before fixed.
(c) Every foreign dealer, as dealer is hereinbe-
fore defined, who shall maintain an office in this
state, or have a salesman in this state, shall apply
for and procure from the commissioner of revenue
a state license for the privilege of transacting such
business, and shall pay for such license the tax
hereinbefore imposed.
(d) If such person, firm, or corporation de-
scribed in subsection (a) of this section maintains
and/or operates a leased or private wire and/or
ticker service in connection with such business the
annual license tax shall be as follows:
In cities and towns of less than 10,000
population $ 150.00
In cities and towns of 10,000 and less than
15,000 population 250.00
In cities and towns of 15,000 and less than
20,000 population 500.00
§ 7880(64)
TAXATION
§ 7880(65)
In cities and towns of 20,000 to 25,000
population 750.00
In cities and towns of 25,000 or more. . . . 1,000.00
Providing, that the tax levied in sub-section (d)
shall not apply to private wire service not con-
nected with or handling quotations of a stock ex-
change, grain or cotton exchange.
(e) Counties shall not levy any license tax on
the business taxed under this section, but cities
and towns may levy license tax not in excess of
fifty dollars ($50.00). (1937, c. 127, s. 132.)
§ 7880(64). Cotton buyers and sellers on com-
mission.— (1) Every person, firm, or corporation
who or which engages in the business and/or sell-
ing on commission any cotton, grain, provisions,
or other commodities, either for actual, spot, or
instant delivery, shall apply for and procure from
the commissioner of revenue a state license for the
privilege of transacting such business in this state,
and shall pay for such license a tax of fifty dol-
lars ($50.00).
(2) Every person, firm, or corporation who or
which engages in the business of buying or selling
any cotton, grain, provisions, or other commodities,
either for actual, spot, instant or future delivery,
and also maintains and/or operates a private or
leased wire and/or ticker service in connection
with such business, shall apply for and procure
from the commissioner of revenue a state license
for the privilege of transacting such business in
this state and shall pay for such license the follow-
ing tax:
In cities and towns of less than 10,000
population $ 100.00
In cities and towns of 10,000 and less than
15,000 population 200.00
In cities and towns of 15,000 and less than
25,000 population 400.00
In cities and towns of 25,000 population or
more 600.00
Persons, firms, and corporations who pay the tax
imposed in subsection (d) of section 7880(63) shall
not be required to pay the tax imposed in this
sub-section.
(3) Every person, firm, or corporation, domestic
or foreign, who or which is engaged in the busi-
ness of selling any cotton, either for actual, spot,
instant, or future delivery, in excess of five thou-
sand bales per annum, shall be deemed to be a
cotton merchant, shall apply for and obtain from
the commissioner of revenue a state-wide license
for each office or agency maintained in this state
for the sale of cotton and shall pay for each such
license the following tax:
In cities and towns of less than 10,000
population $ 50.00
In cities and towns of 10,000 and less than
15,000 population 100.00
In cities and towns of 15,000 and less than
25,000 population 200.00
In cities and towns of 25,000 population
and over 300.00
(4) Counties shall not levy any license tax on
the business taxed under this section, but cities
and towns may levy a license tax not in excess of
and distributors of soft drinks. — (a) Every person,
firm, or corporation or association manufacturing,
producing, bottling and/or distributing in bottles,
or other closed containers, soda water, coca-cola,
pepsi-cola, chero-cola, ginger ale, grape and other
fruit juices or imitations thereof, carbonated or
malted beverages and like preparations, or prepa-
rations of any nature whatever commonly known
as soft drinks, shall apply for and obtain from the
commissioner of revenue a state license for the
privilege of doing business in this state, and shall
pay for such license the following base tax for each
place of business:
Low-Pressure Equipment
Where the machine or the equipment unit used
in the manufacture of the above named beverage
is a:
36 spouts, or greater capacity, low-pres-
sure filler $ 600.00
32 and less than 36 spouts, low-pressure
filler 500.00
24 and less than 32 spouts, low-pressure
filler
18 and
filler
12 and
filler
less than 24 spouts, low-pressure
less than 18 spouts, low-pressure
450.00
350.00
250.00
fifty dollars ($50.00). (1937,
§ 7880(65). Manufacturers,
N. C. Supp.— 17
133.)
producers, bottlers,
High-Pressure Equipment
Where the machine or the equipment unit used
in the manufacture of the above mentioned bever-
ages is a Royal (8-head), Shields (6-head),
Adriance (6-head), or other high-pressure equip-
ment having manufacturer's rating capacity of
over sixty bottles per minute, six hundred dollars
($600.00).
Royal (4-head), Adriance (2-head), Shields (2-
head), full equipment having manufacturer's rating
capacity of over fifty and less than sixty bottles
per minute, five hundred dollars ($500.00).
Royal (4-head), Adriance (2-head), Shields (2-
head) (full automatic), or other high-pressure
equipment having manufacturer's rating capacity
of more than forty and less than fifty bottles per
minute, four hundred fifty dollars ($450.00).
Dixie (automatic), Shields (2-head hand feed),
Adriance (1-head), Calleson (1-head), Senior
(high-pressure), Junior (high-pressure), or Burns
or other high-pressure equipment having manu-
facturer's rating capacity of more than twenty-four
bottles and less than forty bottles per minute, one
hundred fifty dollars ($150.00).
Single-head Shields, Modern Bond (power),
Baltimore (semi-automatic), and all other ma-
chines or equipment having manufacturer's rating
capacity of less than twenty-four bottles per min-
ute and all foot-power bottling machines, one hun-
dred dollars ($100.00) :
Provided, that any bottling machine or equip-
ment unit not herein specifically mentioned shall
bear the same tax as a bottling machine or equip-
ment unit of the nearest rated capacity as herein
enumerated: Provided further, that where any per-
son, firm, corporation, or association has within
his or its bottling plant or place of manufacture
more than one bottling machine or equipment unit,
then such person, firm, corporation, or association
shall pay the tax as herein specified upon every
s,uch bottling machine or equipment unit whether
[257]
§ 7880(66)
TAXATION
§ 7880(68)
100.00
90.00
80.00
70.00
60.00
50.00
in actual operation or not: Provided further, that
where no standard high or low-pressure bottling
machine is used to fill the containers, a tax of fifty
dollars ($50.00) shall apply. The tax levied in
this section shall not apply to any product con-
taining more than fifty per cent (50%) of milk, put
up in containers for sale as food rather than soft
drink preparations.
(b) Every person, corporation, or association
distributing, selling at wholesale, or jobbing bot-
tled beverages as enumerated in sub-section (a)
of this section shall pay an annual license tax for
the privilege of doing business in this state, as
follows:
In cities or towns of 30,000 inhabitants or
more !
In cities or towns of 20,000 inhabitants and
less than 30,000 inhabitants
In cities or towns of 10,000 inhabitants and
less than 20,000 inhabitants
In cities or towns of 5,000 inhabitants and
less than 10,000 inhabitants
In cities or towns of 2,500 inhabitants and
less than 5,000 inhabitants
In rural districts and towns of less than
2,500 inhabitants
The tax levied in this sub-section shall not include
the right to sell products authorized to be sold
under sections 3411(92)-3411(120).
(c) Every distributing warehouse selling or
supplying to retail stores cereal or carbonated
beverages manufactured or bottled within the state,
but outside of the county in which such cereal or
carbonated beverages are manufactured or bottled,
shall pay one-half of the annual license tax for
the privilege of doing business in this state pro-
vided for in sub-section (b) of this section.
(d) Every distributing warehouse selling or
supplying to retail stores cereal or carbonated bev-
erages on which the tax has not been paid under
the provisions of sub-section (a) of this section
shall pay the annual license tax for the privilege
of doing business in the state provided in sub-sec-
tion (b) of this section.
(e) Each truck, automobile, or other vehicle
coming into this state from another state, and
selling and/or delivering carbonated beverages on
which the tax has not been paid under the pro-
visions of sub-section (a) of this section, shall pay
an annual license tax for the privilege of doing
business in this state, in the sum of one hundred
dollars ($100.00) per truck, automobile, or vehicle.
The license secured from the state under this sec-
tion shall be posted in the cab of the truck, auto-
mobile, or vehicle.
(f) No county shall levy a tax on any business
taxed under the provisions of this section, nor
shall any city or town in which any person, firm,
corporation, or association taxed hereunder has its
principal place of business levy and collect more
than one-fourth of the state tax levied under this
section; nor shall any tax be levied or collected by
any county, city, or town on account of the deliv-
ery of the products, beverages, or articles enumer-
ated in sub-section (a) or (b) or (c) or (d) of this
section when a tax has been paid under any of
those sub-sections. (1937, c. 127, s. 134.)
§ 7880(66). Packing houses. — Every person,
firm, or corporation engaged in or operating a
meat packing house in this state, and every whole-
sale dealer in meat packing-house products who
owns, leases, or rents and operates a cold-storage
room or warehouse in connection with such whole-
sale business, shall apply for and procure from the
commissioner of revenue a state license for the
privilege of conducting such business in this state,
and shall pay for such license the sum of one hun-
dred dollars ($100.00) for each county in which is
located such a packing house or a cold-storage
room or warehouse. Every person, firm, or cor-
poration maintaining a cold-storage room or ware-
house and distributing such products to other
stores owned in whole or in part by the distributor
for sale at retail shall be deemed a wholesale
dealer or distributor in the meaning of this act.
Counties shall not levy any tax on business taxed
under this section. (1937, c. 127, s. 135.)
§ 7880(67). Newspaper contests. — Every per-
son, firm, or corporation that conducts contests
and offers a prize, prizes, or other compensation
to obtain subscriptions to newspapers, magazines,
or other periodicals in this state shall apply for
and procure from the commissioner of revenue a
state license for the privilege of conducting such
contests, and shall pay for such license the follow-
ing tax for each such contest:
Monthly, weekly, semi-weekly newspaper,
magazine or other periodical $ 50.00
Daily newspaper or other daily periodical.. 200.00
Counties, cities and towns may levy a tax not
to exceed one-half of that levied by the state un-
der the provisions of this act. (1937, c. 127, s. 136.)
§ 7880(68). Persons, firms, or corporations sell-
ing certain oils. — (a) Every person, firm, or cor-
poration engaged in the business of selling illumi-
nating or lubricating oil or greases, or benzine,
naphtha, gasoline, or other products of like kind
shall apply for and procure from the commissioner
of revenue a state license for the privilege of con-
ducting such business, and shall pay for the same
a tax of two dollars and fifty cents ($2.50).
(b) In addition to the tax herein levied under
subsection (a) of this section, such person, firm,
or corporation shall pay to the commissioner of
revenue, on or before the first day of July of each
year, an annual additional license tax equal to five
per cent (5%) of the total gross sales for the pre-
ceding year or part of the year that the business
is so conducted or the privilege so exercised, when
the total gross sales of such commodities exceed
five thousand dollars ($5,000.00), or pro rata for
a part of the year.
(c) The amount of such total gross sales shall
be returned to the commissioner of revenue on or
before the date specified in subsection (b) of this
section by such person, firm, or corporation, veri-
fied by the oath of the person making the return,
upon such forms and in such detail as may be re-
quired by the commissioner of revenue.
(d) Counties shall not levy any license tax on
the business taxed under this section; but cities or
towns in which there is located an agency, station,
or warehouse for the distribution or sale of such
commodities enumerated in this section may levy
the following license tax:
In incorporated towns and cities of less than
10,000 population $25.00
[ 258 ]
§ 7880(69)
TAXATION
§ 7880(71)
In cities and towns of 10,000 population and
over 50.00
(e) Any person, firm, or corporation subject to
this license tax, and doing business in this state
without having paid such license tax, shall be fined
one thousand dollars ($1,000.00), and in addition
thereto double the tax imposed by this section.
(f) No license or privilege tax, other than the
license tax permitted in this section to cities or
towns, shall be levied or collected for the privilege
of engaging in or doing the business named in this
section from any person, firm, or corporation pay-
ing the inspection fees and charges provided for
under article fourteen of chapter eighty-four of
the Consolidated Statutes of one thousand nine
hundred nineteen and the amendments thereto,
except license taxes levied in sections 7880(84) and
7880(93)b. (1937, c. 127, s. 137.)
§ 7880(69). Building and loan associations. —
Every building and loan association, domestic or
foreign, operating under a charter granted by au-
thority of the laws of this state or any other state,
or the United States, for the purpose of making
loans to its members only and of enabling its
members to acquire real estate, make improve-
ments thereon, and remove encumbrances there-
from by the payment of money in periodical in-
stallments or principal sums, and for the accumu-
lation of a fund to be returned to members who
do not obtain advances for such purposes, shall
pay to the insurance commissioner, on or before
the first day of April of each year, the following
annual license tax for the privilege of doing busi-
ness in the state:
(a) A tax of thirteen cents (13c) on each one
hundred dollars ($100.00) of liability on actual
book value of shares of stock outstanding on the
thirty-first day of December of the preceding year,
as shown by reports of such association to be
made to the insurance commissioner. The tax lev-
ied herein shall be in addition to the license fee
required under section five thousand one hundred
eighty-six, Consolidated Statutes, and expenses and
cost of examination required under section five
thousand one hundred ninety, Consolidated Stat-
utes.
(b) Counties, cities, and towns shall not levy
any license tax on the business taxed in this sec-
tion. (1937, c. 127, s. 138.)
§ 7880(70). Pressing clubs, dry cleaning plants,
and hat blockers. — Every person, firm, or corpo-
ration engaged in the business of pressing and/or
dry cleaning any articles of clothing, reshaping,
cleaning, and/or reblocking any hats shall apply
for and procure from the commissioner of revenue
a state license for the privilege of conducting such
business and pay for the same the following tax:
In cities or towns of less than 10,000 population:
Where not more than three persons are em-
ployed $12.50
Where more than three persons are em-
ployed 25.00
In cities and towns of 10,000 population and
over:
Where not more than three persons are em-
ployed $25.00
Where more than three persons are em-
ployed 50.00
Every person, firm, or corporation soliciting
pressing and/or cleaning work in any city or town
to be done outside of the city wherein said press-
ing and/or cleaning business is established, and in
another city or town where one or more pressing
clubs or dry cleaning plants are located, or where
an established agency with a fixed place of busi-
ness is located, shall procure from the commis-
sioner of revenue a state license for the privilege
of soliciting in said city or town. The soliciting
of business for or by any person, firm, or corpora-
tion engaged in the pressing and/or cleaning work
shall and the same is hereby construed to be en-
gaging in said business, and the person, firm, or
corporation soliciting in said city or town shall
procure from the revenue commissioner a state
license for the privilege of soliciting in said city
and town, said tax to be in a sum equal to the
amount which would be paid by such establish-
ments actually engaged in such business in said
city or town.
(a) This section shall not apply to any bona fide
student of any college or university in this state
operating such pressing or dry cleaning business
at such college or university during the school
term of such college or university.
(b) Cities and towns, respectively, may levy a
license tax not in excess of that levied by the state.
In addition to the annual tax levied in this sec-
tion, it is hereby required, with respect to every
such concern herein referred to, that with each
delivery of articles of clothing or other articles
herein referred to and cleaned or otherwise proc-
essed as herein referred to there shall be issued
a charge ticket, to each of which tickets there
shall be affixed a service stamp tax of one cent
(lc) on all packages on which the charge is one
dollar ($1.00) or less, and for packages of more
than one dollar ($1.00), one cent (lc) for each
dollar or fraction thereof, the amount of such tax
to be added to such charge ticket and to be paid
for by the customer. The stamps for such pur-
pose are to be made available by the commissioner
of revenue and by him sold to pressing and/or
cleaning concerns at par and for cash only, as the
same may be needed by the pressing and/or clean-
ing concerns of the state in order to meet the re-
quirements of this act. It shall be unlawful for
any person, firm, or corporation engaged in such
business to make any delivery except in compli-
ance with this section, and the violation of any of
the provisions hereof is hereby declared to be a
misdemeanor. (1937, c. 127, s. 139.)
§ 7880(71). Barber shops. — Every person, firm,
or corporation engaged in the business of con-
ducting a barber shop, beauty shop or parlor, or
other shop of like kind shall apply for and pro-
cure from the commissioner of revenue a state li-
cense for the privilege of conducting such busi-
ness, and shall pay for such license the following
tax:
For each barber chair maintained in a barber
shop $2.50
For each barber, manicurist, cosmetologist,
beautician, or operator in beauty parlor, or
other shop of like kind in any office, hotel,
or other place 5.00
Counties shall not levy a license tax under this
[ 259
§ 7880(72)
TAXATION
§ 7880(76)
section, but cities and towns may levy a license
tax not in excess of that levied by the state. (1937,
c. 127, s. 140.)
§ 7880(72). Shoeshine parlors. — Every person,
firm, or corporation who or which maintains or
operates a place of business wherein is operated a
shoeshine parlor, stand, or chair or other device
shall apply for and procure from the commis-
sioner of revenue a state license for the privilege
of conducting such business and shall pay for such
license the following tax:
Where the number of chairs or stools are
not more than two $ 5.00
Where the number of chairs or stools are
more than two and less than six 10.00
Where the number of chairs or stools are six
and less than ten 20.00
Where the number of chairs or stools are
ten or more 30.00
Counties shall not levy any license tax on the
business taxed under this section, but cities and
towns may levy a license tax not in excess of that
levied by the state. (1937, c. 127, s. 141.)
§ 7880(73). Tobacco warehouses. — Every per-
son, firm, or corporation engaged in the business
of operating a warehouse for the sale of leaf to-
bacco upon commission shall, on or before the
first day of June of each year, apply for and ob-
tain from the commissioner of revenue a state li-
cense for the privilege of operating such ware-
house for the next ensuing year, and shall pay for
such license the following tax:
For a warehouse in which was sold during the
preceding year ending the first day of June:
Eess than 1,000,000 pounds $ 50:00
1,000,000 pounds and less than 2,000,000 75.00
2,000,000 pounds and less than 3,000,000 175.00
3,000,000 pounds and less than 4,000,000 250.00
4,000,000 pounds and less than 5,000,000 400.00
5,000,000 pounds and less than 6,000,000 500.00
For all in excess of 6,000,000 pounds, $500.00
and six cents per thousand pounds.
(a) If a new warehouse not in operation the
previous year, the person, firm, or corporation op-
erating such warehouse may procure a license by
payment of the minimum tax provided in the fore-
going schedule, and at the close of the season for
sales of tobacco in such warehouse shall furnish
the commissioner of revenue a statement of the
number of pounds of tobacco sold in such ware-
house for the current year, and shall pay an ad-
ditional license tax for the current year based on
such total volume of sales in accordance with the
schedule in this section.
If an old warehouse with new or changed own-
ership or management, the tax shall be paid ac-
cording to the schedule in this section, based on
the sales during the preceding year, just as if the
old ownership or management had continued its
operation.
(b) The commissioner of agriculture shall cer-
tify to the commissioner of revenue, on or before
the first day of June of each year, the name of
each person, firm, or corporation operating a to-
bacco warehouse in each county in the state, to-
gether with the number of pounds of leaf tobacco
sold by such person, firm, or corporation in each
warehouse for the preceding year, ending on the
first day of June of the current year.
(c) The commissioner of agriculture shall re-
port to the solicitor of any judicial district in
which a tobacco warehouse is located which the
owner or operator thereof shall have failed to
make a report of the leaf tobacco sold in such
warehouse during the preceding year, ending the
first day of June of the current year, and such so-
licitor shall prosecute any such person, firm, or
corporation under the provisions of this section.
(d) The tax levied in this section shall be based
on official reports of each tobacco warehouse to
the state department of agriculture showing
amount of sales for each warehouse for the pre-
vious year.
(e) The commissioner of revenue or his depu-
ties shall have the right, and are hereby author-
ized, to examine the books and records of any per-
son, firm, or corporation operating such ware-
house, for the purpose of verifying the reports
made and of ascertaining the number of pounds
of leaf tobacco sold during the preceding year, or
other years, in such warehouse.
(f) Any person, firm, or corporation who or
which violates any of the provisions of this sec-
tion shall, in addition to all other penalties pro-
vided for in this act, be guilty of a misdemeanor,
and upon conviction shall be fined not less than
five hundred dollars ($500.00) and/or imprisoned,
in the discretion of the court.
(g) No county shall levy any license tax on the
business taxed under this section. Cities and
towns may levy a tax not in excess of fifty dol-
lars ($50.00) for each warehouse. (1937, c. 127,
s. 142.)
Cited in State v. Morrison, 210 N. C. 117, 185 S. E. 674.
§ 7880(75). Newsdealers on trains. — Every per-
son, firm, or corporation engaged in the business
of selling books, magazines, papers, fruits, confec-
tions, or other articles of merchandise on railroad
trains or other common carriers in this state shall
apply for and obtain a state license from the com-
missioner of revenue for the privilege of conduct-
ing such business, and shall pay for such license
the following tax:
Where such person, firm, or corporation oper-
ates on railroads or other common carriers on:
Less than 300 miles $ 250.00
Three hundred and less than 500 miles. . . 500.00
Five hundred miles or more 1,000.00
This section shall not apply to any railroad
company engaged in selling such articles to pas-
sengers on its train and paying the tax upon the
retail sales of merchandise levied in Article V,
Schedule E, of this act [§ 7880(156)a et seq.].
Counties, cities, and towns shall not levy any
license tax on the business taxed under this sec-
tion. (1937, c. 127, s. 143.)
§ 7880(76). Soda fountains, soft-drink stands. —
Every person, firm, or corporation engaged in the
business of operating a soda fountain or soft-
drink stand shall apply for and obtain from the
commissioner of revenue a state license for the
privilege of conducting such business, and shall
pay for such license the following tax:
On soda fountains. — On each carbonated draft
arm of each soda fountain a tax of $10.00.
260 ]
§ 7880(77)
TAXATION
§ 7880(80)
On each stand at which soft drinks are sold,
the same not being strictly a soda, fountain, and
on each place of business where bottled carbon-
ated drinks are sold at retail, the license tax shall
be five dollars ($5.00).
In addition to the license tax levied in this sec-
tion, the tax shall be paid upon the gross sales at
the rate of tax levied in Article V, Schedule E, of
this act [§ 7880(156)a et seq.], upon the retail
sales of merchandise, such tax to be paid at the
time and in the manner required for the sales of
other merchandise.
Counties shall not levy a license tax on the busi-
ness taxed under this section, but cities and towns
may levy a license tax not in excess of one-half
of the base tax levied by the state. (1937, c. 127,
s. 144.)
§ 7880(77). Dealers in pistols, etc. — Every per-
son, firm, or corporation who is engaged in the
business of keeping in stock, selling, and/or offer-
ing for sale any of the articles or commodities
enumerated in this section, shall apply for and ob-
tain a state license from the commissioner of rev-
enue for the privilege of conducting such business,
and shall pay for such license the following tax:
For pistols $ 50.00
For bowie knives, dirks, daggers, sling-
shots, leaded canes, iron or metallic
knuckles, or articles of like kind 200.00
For blank cartridge pistols 200.00
(a) If such person, firm, or corporation deal
only in metallic cartridges, the tax shall be ten
dollars ($10.00) .
(b) Counties, cities, or towns may levy a license
tax on the business taxed under this section not
in excess of that levied by the state. (1937, c. 127,
s. 145.)
§ 7880(78). Dealers in cap pistols, fireworks,
etc. — Every person, firm, or corporation engaged
in the business of selling or offering for sale fire-
crackers, fireworks, or other articles of like kind,
cap pistols, or pistols so constructed that they
can by treatment to release the hammer to be used
to fire caps, shall apply for and obtain from the
commissioner of revenue a state license for the
privilege of engaging in such business, and shall
pay for the same a tax of one hundred dollars
($100.00).
Counties, cities, or towns may levy a license
tax on the business taxed under this section not
in excess of twice that levied by the state. (1937,
c. 127, s. 146.)
§ 7880(79). Pianos, organs, victrolas, records,
radios, accessories. — Every person, firm, or corpo-
ration engaged in the business of selling, offering
or ordering for sale any of the articles hereinafter
enumerated in this section shall apply for and ob-
tain from the commissioner of revenue a state li-
cense for the privilege of conducting such busi-
ness, and shall pay for each license the following
tax:
For pianos and/or organs, graphophones, vic-
trolas, or other instruments using discs or cylinder
records, and/or the sale of records for either or
all of these instruments, radios or radio accesso-
ries, an annual license tax of ten dollars ($10.00').
(a) Any person, firm, or corporation applying
for and obtaining a license under this section may
employ traveling representative or agents, but
such traveling agent or representatives shall ob-
tain from the commission of revenue a duplicate
license of such person, firm, or corporation who
or which he represents, and pay for the same a
tax of ten dollars ($10.00).
Each duplicate copy so issued is to contain the
name of the agent to whom it is issued, the instru-
ment to be sold, and the same shall not be trans-
ferable.
Representatives or agents holding such dupli-
cate copy of such license are licensed thereby to
sell or offer for sale only the instrument and/or
articles authorized to be sold by the person, firm,
or corporation holding the original license, and
such license shall be good and valid in any county
in the state.
(ib) Every person, firm, or corporation violating
any of the provisions of this section shall be guilty
of a misdemeanor and shall pay a penalty of two
hundred and fifty dollars ($250.00), and in addi-
tion thereto double the state license tax levied in
this section for the then current year.
(c) Counties shall not levy any license tax on
the business taxed under this section, except that
the county in which the agent or representative
holding a duplicate copy of the license aforesaid
may impose a license tax not in excess of five dol-
lars ($5.00). Cities or towns may levy a license
tax on the business taxed under this section not
in excess of one-half of that levied by the state.
(1937, c. 127, s. 147.)
§ 7880(80). Installment paper dealers. — (a)
Every person, firm, or corporation, foreign or do-
mestic, engaged in the business of dealing in, buy-
ing, and/or discounting installment paper, notes,
bonds, contracts, evidences of debt and/or other
securities, where lien is reserved or taken upon
personal property located in this state to secure
the payment of such obligations, shall apply for
and obtain from the commissioner of revenue a
state license for the privilege of engaging in such
business or for the purchasing of such obligations
in this state, and shall pay for such license an an-
nual tax of one hundred dollars ($100.00).
(ib) In addition to the tax levied in subsection
(a) of this section, such person, firm, or corpora-
tion shall submit to the revenue commissioner
quarterly on the first day of January, April, July,
and October of each year, upon forms prescribed
by the said commissioner, a full, accurate, and
complete statement, verified by the officer, agent,
or person making such statement, of the total
face value of the installment paper, notes, bonds,
contracts, evidences of debt, and/or other securi-
ties described in this section dealt in, bought and/
or discounted within the preceding three months
and, at the same time, shall pay a tax of one-
fourth of one per cent of the face value of such
obligations dealt in, 'bought and/or discounted for
such period.
(c) If any person, firm, or corporation, foreign
or domestic, shall deal in, buy and/or discount
any such paper, notes, bonds, contracts, evidences
of debt and/or other securities described in this
section without applying for and obtaining a li-
cense for the privilege of engaging in such busi-
ness or dealing in such obligations, or shall fail,
[261]
§ 7880(81)
TAXATION
§ 7880(83)
refuse, or neglect to pay the taxes levied in this
section, such obligation shall not be recoverable
or the collection thereof enforceable at law or by
suit in equity in any of the courts of this state un-
til and when the license taxes prescribed in this
section have been paid, together with any and all
penalties prescribed in this act for the non-pay-
ment of taxes.
(d) This section shall not apply to corporations
organized under the state or national banking
laws.
(e) Counties, cities and towns shall not levy
any license tax on the business taxed under this
section. (1937, c. 127, s. 148.)
§ 7880(81). Tobacco and cigarette retailers and
jobbers. — Every person, firm, or corporation en-
gaged in the business of retailing and/or jobbing
cigarettes, cigars, chewing tobacco, snuff, or any
other tobacco products shall apply for and obtain
from the commissioner of revenue a state license
for the privilege of engaging in such business, and
shall pay for such license the following tax:
Outside of incorporated cities or towns and
cities or towns of less than 1,000 popula-
tion $ 5.00
Cities or towns of 1,000 population and
over 10.00
Counties shall not levy any license tax on the
business taxed under this section, but cities and
towns may levy a license tax not in excess of that
levied by the state. (1937, c. 127, s. 149.)
§ 7880(82). Laundries. — Every person, firm, or
corporation engaged in the business of operating
a laundry, including a wet or damp wash laun-
dries, where steam, electricity, or other power is
used, or who engages in the business of supplying
or renting clean linen or towels, shall apply for
and obtain from the commissioner of revenue a
state license for the privilege of engaging in such
business, and shall pay for such license the fol-
lowing tax:
In cities or towns of less than 5,000 popula-
tion $ 12.50
In cities or towns of 5,000 and less than
10,000 population 25.00
In cities or towns of 10,000 and less than
15,000 population 37.50
In cities or towns of 15,000 and less than
20,000 population 50.00
In cities or towns of 20,000 and less than
25,000 population 60.00
In cities or towns of 25,000 and less than
30,000 population 72.50
In cities or towns of 30,000 and less than
35,000 population 85.00
In cities or towns of 35,000 and less than
40,000 population 100.00
In cities or towns of 40,000 and less than
45,000 population 112.50
In cities or towns of 45,000 population and
above 125.00
Provided, however, that any laundry or other
concern herein referred to where the work is
performed exclusively by hand or home-size ma-
chines only, and where not more than four per-
sons are employed, including the owners, the li-
cense tax shall be one-third of the amount stipu-
lated in the foregoing schedule.
Every person, firm, or corporation soliciting
laundry work, or supplying or renting clean linen
or towels, in any city or town, to be done outside
of the city wherein said laundry or linen supply
or towel supply business is established, shall pro-
cure from the commissioner of revenue a state li-
cense for the privilege of soliciting in said city or
town. The additional tax levied in this paragraph
shall apply to the soliciting of laundry work only
in cities or towns where one or more laundries are
located, or where an established agency with a
fixed place of business is located.
The soliciting of business for or by any person,
firm, or corporation engaged in the business of
laundry work, and/or supplying or renting clean
linen or towels shall and the same is hereby con-
strued to be engaging in said business, and the
person, firm, or corporation soliciting in said city
or town shall procure from the revenue commis-
sioner a state license for the privilege of soliciting
in said city or town, said tax to be in a sum equal
to the amount which would be paid if the solicitor
had an establishment actually engaged in such
business in said city or town.
Counties, cities and towns, respectively, may
levy a license tax not in excess of one-half that
levied by the state on any person, firm, or corpo-
ration engaged in the business of laundry work
and/or supplying or renting clean linens or towels
in instances when said work is performed outside
the said county or town, or when the linen or tow-
els are supplied by a business outside said county
or town.
In addition to the annual tax levied in this sec-
tion, it is hereby required with respect to every
laundry, including wet or damp wash laundries,
where steam, electricity, or other power is used,
or who engages in the business of supplying or
renting clean linen or towels, that with each deliv-
ery of laundry for which there is a charge made
there shall be issued a charge ticket, to each of
which tickets there shall be affixed a service stamp
tax of one cent on all packages on which the
charge is one dollar or less, and for packages of
more than one dollar, one cent for each dollar or
fraction thereof, the amount of such tax to be
added to such charge ticket and to be paid for by
the customer. The stamps for such purpose are
to be made available by the commissioner of reve-
nue and by him sold to said laundries at par and
for cash only, as the same may be needed by the
laundries of the state in order to meet the require-
ments of this act. It shall be unlawful for any
person, firm, or corporation engaged in such busi-
ness to make any delivery except in compliance
with this section, and the violation of any of the
provisions is hereby declared to be a misdemeanor.
(1937, c. 127, S. 150.)
§ 7880(83). Outdoor advertising. — (a) Every
person, firm, or corporation who or which is en-
gaged in the business of outdoor advertising by
placing, erecting, or maintaining one or more out-
door advertising signs or structures of any nature
by means of signboards, poster boards, or printed
bulletins, or other printed or painted matter, or
any other outdoor advertising devices, erected up-
on the grounds, walls, or roofs of buildings, shall
apply for and obtain from the commissioner of
revenue a state license for the privilege of en-
[ 262 ]
§ 7880(83)
TAXATION
§ 7880(83)
gaging in such business in this state, and shall
pay annually for said license as follows:
For posting or erecting 50 or more signs
or panels $100.00
For posting or erecting 20 to 50 signs
or panels 50.00
For posting or erecting less than 20 signs or
panels, one dollar for each sign or panel.
And in addition thereto the following license
tax for each city, town, or other place in which
such signboards, poster boards, painted bulletins,
and other painted or printed matter or other out-
door advertising devices are maintained, in cities
and towns of:
Less than 500 population $ 5.00
500 to 999 population 7.50
1,000 to 1,999 population 10.00
2,000 to 2,999 population 15.00
3,00d to 3,999 population 20.00
4,000 to 4,999 population 25.00
5,000 to 9,999 population 40.00
10,000 to 14,999 population 50.00
15,000 to 19,999 population 75.00
20,000 to 24,999 population 100.00
25,000 to 34,999 population 125.00
35,000 population and over 150.00
In each county outside of cities and towns 25.00
Provided, that the tax levied in this act shall
not apply to regularly licensed motion picture
theatres taxed under section 7880(34) upon any
advertising signs, structures, boards, bulletins, or
other devices erected by or placed by the theatre
upon property which the theatre has secured by
permission of the owner.
Every person, firm, or corporation who or
which places, erects, or maintains one or more
outdoor advertising signs, structures, boards,
bulletins, or devices as specified in this section
shall be deemed to be engaged in the business of
outdoor advertising, but when the applicant in-
tends to advertise his own business exclusively
by the erection or placement of such outdoor ad-
vertising signs, structures, boards, bulletins, or
devices as specified in this section, he may be li-
censed to do so upon the payment annually of
one dollar ($1.00) for each sign up to five hundred
in number, and for five hundred or more, the sum
of five hundred dollars ($500.00) for the privilege
in lieu of all other taxation as provided in this
section, except such further taxation as may be
imposed upon him by cities or towns, acting un-
der the power to levy not in excess of one-half
of that specified in paragraph two of sub-section
(a) of this section.
(b) Every person, firm, or corporation shall
show in its application for the state license here-
in provided for the name of each incorporated city
or town within which, and the county within
which, it is maintaining or proposes to maintain
said signboards, poster boards, painted bulletins,
or other painted or printed signs or other outdoor
advertising devices within the state of North Car-
olina. No person, firm, or corporation, licensed
under the provisions of this act, shall erect or
maintain any outdoor advertising structures, de-
vice or display until a permit for the erection of
such structures, device or display shall have been
obtained from the commissioner of revenue. Ap-
plication for such permit shall be in writing signed
by the applicant or his duly authorized agent, up-
on blanks furnished by the commissioner of rev-
enue, in such form and requiring such information
as said commissioner of revenue may prescribe.
Each application shall have attached thereto the
written consent of the owners or duly authorized
agent of the property on which structures, device
or display is to be erected or maintained, and shall
state thereon the beginning and ending dates of
such written permission: Provided, this subsec-
tion shall not apply to persons, firms or corpora-
tions who or which advertise their or its own
business exclusively, and who or which have been
licensed therefor pursuant to sub-section (a) of
this section.
(c) It shall be unlawful for any person engaged
in business of outdoor advertising to in any man-
ner paint, print, place, post, tack, or affix or cause
to be painted, printed, placed, posted, tacked, or
affixed any sign or other printed or painted ad-
vertisement on or to any stone, tree, fence, stump,
pole, building, or other object which is upon the
property of another without first obtaining the
written consent of such owner thereof, and any
person, firm or corporation who in any manner
paints, prints, places, posts, tacks, or affixes or
causes same to be painted, printed, posted, placed,
tacked, or affixed such advertisement on the prop-
erty of another except as herein provided shall be
guilty of a misdemeanor, and shall be punished by
a fine not exceeding fifty dollars ($50.00) or im-
prisonment of thirty days: Provided, that the pro-
visions of this section shall not apply to legal
notices.
(d) It shall be unlawful for any person, firm,
or corporation to paint, print, place, post, tack, or
affix any advertising matter within the limits of
the right-of-way of public highways of the state
without the permission of the state highway com-
mission, or upon the streets of the incorporated
towns of the state without permission of the gov-
erning authorities, and if and when signs of any
nature are placed without permission within the
highways of the state or within the streets of in-
corporated towns, it shall be the duty of the high-
way commission or other administrative body or
other governing authorities of the cities and towns
of said state to remove said advertising matter
therefrom.
(e) Every person, firm, or corporation owning
or maintaining signboards, poster boards, printed
bulletins, or other outdoor advertisements of any
nature within this state shall have imprinted on
the same the name of such person, firm, or cor-
poration in sufficient size to be plainly visible and
permanently affixed thereto.
(f) A license shall not be granted any person,
firm, or corporation having his or its principal
place of business outside the state for the display
of any advertising of any nature whatsoever,
designed or intended for the display of advertis-
ing matter, until such person, firm, or corporation
shall have furnished and filed with the commis-
sioner of revenue a surety bond to the state, ap-
proved by him, in such sum as he may fix, not
exceeding five thousand dollars ($5,000.00), con-
ditioned that such license shall fulfill all require-
ments of law, and lawful regulations and orders of
said commissioner of revenue, relative to the dis-
play of advertisements. Such surety bond shall
f 263
§ 7880(83) a
TAXATION
§ 7880(83)b
remain in full force and effect as long as any ob-
ligations of such licensee to the state shall remain
unsatisfied.
(g) No advertising, or other signs specified in
this act, shall be erected in the highway right-of-
way so as to obstruct the vision or otherwise to
increase the hazard, and all signs upon the high-
ways shall be placed in a manner to be approved
by the said highway commission.
(h) Any person, firm, or corporation who or
which shall refuse or neglect to comply with the
terms and provisions of this section and who shall
fail to pay the tax herein provided for within
thirty days after the same shall become due or
who shall paint, print, place, post, tack, affix or
display any advertising sign or other matter con-
trary to the provisions of this act, the highway
commission of the state of North Carolina or other
governing body having jurisdiction over the roads
and highways of the state, and the governing au-
thorities of cities and towns and its agents and
employees, and the board of county commission-
ers of the various counties of said state, and its
employees, are directed to forthwith seize and re-
move or cause to be removed all advertisements,
signs or other matter displayed contrary to the
provisions of this act.
For the purpose of more effectually carrying in-
to effect the provisions of this section the com-
missioner of revenue is authorized and directed to
prepare and furnish to the highway commission
or other governing body having jurisdiction over
the roads and highways of the state a sufficient
number of permits to be executed by the owner,
lessee or tenant occupying the lands adjacent to
the highways of the state, upon which advertise-
ments, signs, or other matter displayed contrary
to the provisions of this act, in words as follows:
"I, (we), (owner), (lessee), (tenant) authorize
and direct the Highway Commission of the State
of North Carolina to remove from my lands the
following signs and advertising matter placed up-
on my lands unlawfully or without my permis-
sion:
This day of.
19.. .
And the said highway commission or other gov-
erning body having jurisdiction over the roads
and highways of the state shall forthwith pro-
ceed, through its agents, servants and employees,
wherever and whenever in its opinion it is neces-
sary to secure the consent to the removal of said
signs or other advertising matter from the lands
of the owner, lessee or tenant, to secure said con-
sent and to immediately remove said signs or
other advertising matter from the lands adjacent
to the highways of the state of North Carolina as
herein directed.
(i) Every person, firm, or corporation who vio-
lates any of the provisions of this section shall
be guilty of a misdemeanor, and in addition to
the license tax and penalties provided for herein
shall be fined not more than one hundred dollars
($100.00) for each sign so displayed, or impris-
oned, in the discretion of the court.
(j) Counties shall not levy any license tax
under this section, but cities and towns may levy
license tax not in excess of one-half of that levied
by the state under paragraph two of subsection
(a).
(k) Every person, firm, or corporation apply-
ing for a license as required in sub-section (a)
hereof shall state in his application the number
of advertisements, advertising spaces or devices
he proposes to erect and/or maintain. Upon is-
suing license to any applicant the commissioner
of revenue shall issue a metal tag for each of the
advertisements, advertising spaces or devices men-
tioned in the application, to be valid for one year
from its issuance and showing on its face the date
of its expiration. Such metal tag shall be attached
by the advertiser in such way as to be plainly visi-
ble to the front of each advertisement, advertising
space or device erected, maintained or used by
him.
(1) Any advertisement, advertising space or de-
vice not bearing such a tag or bearing a tag which
shows that it has expired, or otherwise erected or
maintained contrary to the provisions of this sec-
tion, shall be deemed a public nuisance and shall
be summarily removed or destroyed by the state
highway department.
(m) The following signs and announcements
are exempted from the provisions of this section:
signs upon property advertising the business con-
ducted thereon; notice or advertisements erected
by public authority or required by law in any legal
proceedings; any signs containing sixty square
feet or less bearing an announcement of any town
or city advertising itself: Provided the same is
maintained at public expense.
No tax shall be levied under this section
against any person, firm, or corporation erecting,
painting, posting, or otherwise displaying signs or
panels advertising his or its own business con-
taining twelve square feet or less of advertising
surface: Provided, that this exemption shall not
apply if the signs or panels are displayed in more
than five counties; and provided further, that sub-
section (1) shall not apply to signs and panels dis-
played hereunder. (1937, c. 127, s. 151.)
§ 7880(83)a. Motor advertisers. — (a) Every
person, firm, or corporation operating over the
streets or highways of this state any motor ve-
hicle or other mechanical conveyance equipped
with radio, phonograph, or other similar mechan-
ism to produce music, or having any loud-speaker
attachment or other sound magnifying device to
produce sound effects for advertising purposes,
whether advertising his or its own products or
those of others, shall be deemed a motor adver-
tiser, shall procure from the commissioner of rev-
enue a state-wide license for the privilege of en-
gaging in such business in this state, and shall pay
for such license a tax of one hundred dollars
($100.00) for each vehicle or conveyance so used:
Provided, that any such advertiser owning a lo-
cated place of business in this state and advertis-
ing in not more than five counties shall pay one-
fourth the tax provided in this section.
(b) Counties may levy a license tax on the
business taxed under this section not in excess of
one-fourth of that levied by the state, and cities
and towns may levy a tax not in excess of ten
dollars ($10.00). (1937, c. 127, s. 151^-)
§ 7880(83)b. Loan agencies or brokers. — Every
person, firm, or corporation engaged in the regular
[ 264
§ 7880(84)
TAXATION
§ 7880(84)
business of making loans or lending money, ac-
cepting liens on, or contracts of assignments of,
salaries or wages, or any part thereof, or other
security or evidences of debt for repayment of
such loans in installment payments or otherwise,
and maintaining in connection with same any of-
fice or other located or established place for the
conduct, negotiation, or transaction of such busi-
ness and/or advertising or soliciting such business
in any manner whatsoever, shall be deemed a loan
agency, and shall apply for and procure from the
commissioner of revenue a state license for the
privilege of transacting or negotiating such busi-
ness of each office or place so maintained, and
shall pay for such license a tax of five hundred
dollars ($500.00).
(a) Nothing in this section shall be construed
to apply to banks, industrial banks, trust com-
panies, building and loan associations, co-opera-
tive credit unions, nor installment paper dealers
defined and taxed under other sections of this act,
nor shall it apply to business of negotiating loans
on real estate as described in section 7880(38), nor
to pawnbrokers lending or advancing money on
specific articles of personal property. It shall ap-
ply to those persons or concerns operating what
are commonly known as loan companies or finance
companies and whose business is as hereinbefore
described, and those persons, firms or corpora-
tions pursuing the business of lending money and
taking as security for the payment of such loan
and interest an assignment of wages, or an as-
signment of wages with power of attorney to col-
lect same, or other order or chattel mortgage or
bill of sale upon household or kitchen furniture.
(b) At the time of making any such loan, the
person, or officer of the firm or corporation mak-
ing same, shall give to the borrower in writing in
convenient form a statement showing the amount
received by the borrower, the amount to be paid
back by the borrower, and the time in which said
amount is to be paid, and the rate of interest and
discount agreed upon.
(c) Any such person, firm, or corporation fail-
ing, refusing, or neglecting to pay the tax herein
levied shall be guilty of a misdemeanor, and in
addition to double the tax due shall be fined not
less than two hundred and fifty dollars ($250.00)
and/or imprisoned, in the discretion of the court.
No such loan shall be collectible at law in the
courts of this state in any case where the person
making such loan has failed to pay the tax levied
herein, and/or otherwise complied with the pro-
visions of this section.
(d) Counties, cities, and towns may levy a li-
cense tax on the business taxed under this section
not in excess of one hundred dollars ($100.00).
(1937, c. 127, s. 152.)
§ 7880(84). Automobile and motorcycle dealers
and service stations, — 1. Automotive service
stations. — Every person, firm, or corporation en-
gaged in the business of servicing, storing, paint-
ing, repairing, welding, or upholstering of motor
vehicles, trailers, or semi-trailers, or engaged in
the business of retail selling and/or delivering
of any tires, tools, batteries, electrical equipment,
automotive accessories, including radios designed
for exclusive use in automobiles, or supplies, mo-
tor fuels and/or lubricants, or any of such com-
modities, in this state shall apply for and obtain
from the commissioner of revenue a state license
for the privilege of engaging in such business in
this state, and shall pay for such license an an-
nual tax for each location where such business is
carried on, as follows:
In cities or towns of less than 2,500 popu-
lation $ 10.00
In cities or towns of 2,500 and less than
5,000 population 15.00
In cities or towns of 5,000 and less than
10,000 population 20.00
In cities or towns of 10,000 and less than
20,000 population 30.00
In cities or towns of 20,000 and less than
30,000 population 40.00
In cities or towns of 30,000 or more 50.00
(a) In rural sections where a service station is
operated the tax shall be five dollars ($5.00) un-
less more than one pump is operated, in which
event the tax shall be five dollars ($5.00) per
pump.
(b) The tax levied in this section shall in no
case be less than five dollars ($5.00) per pump.
(c) No additional license tax under this sub-
section shall be levied upon or collected from any
employee, agent, or salesman whose employer or
principal has paid the tax for each location levied
in this sub-section.
(d) The tax imposed in section 7880(51) shall
not apply to the sale of gasoline to dealers for
resale.
(e) Counties, cities, and towns may levy a li-
cense tax on each place of business located there-
in under this sub-section not in excess of one-
fourth of that levied by the state.
2. Motorcycle Dealers. — Every person, firm, or
corporation, foreign or domestic, engaged in the
business of buying, selling, distributing, and/or
exchanging motorcycles or motorcycle supplies or
any of such commodities in this state shall apply
for and obtain from the commissioner of revenue
a state license for the privilege of engaging in such
business in this state, and shall pay for such li-
cense an annual tax for each location where such
business is carried on, as follows:
In unincorporated communities and cities
or towns of less than 2,500 population . .$10.00
In cities or towns of 2,500 and less than
5,000 population 15.00
In cities or towns of 5,000 and less than
10,000 population 20.00
In cities or towns of 10,000 and less than
20,000 population 25.00
In cities or towns of 20,000 and less than
30,000 population 30.00
In cities or towns of 30,000 population or
more 40.00
(a) A motorcycle dealer paying the license tax
under this sub-section may buy, sell, and/or deal
in bicycles and bicycle supplies without the pay-
ment of an additional license tax.
• (b) No additional license tax shall be levied up-
on or collected from any employee or salesman
whose employer has paid the tax levied in this
sub-section.
(c) No motorcycle dealer shall be issued dealer's
tags until the license tax levied under this sub-
section has been paid.
[265
§ 7880(85)
TAXATION
§ 7880(85)
(d) Counties, cities, and towns, may levy a li-
cense tax on each place of business located there-
in, taxed under this sub-section, not in excess of
one-fourth of that levied by the state, with the
exception that the minimum tax may be as much
as ten dollars ($10.00).
Automotive Equipment and Supply Dealers at
Wholesale. — Every person, firm, or corporation en-
gaged in the business of buying, selling, distrib-
uting, exchanging, and/or delivering automotive
accessories, including radios designed for exclu-
sive use in automobiles, parts, tires, tools, batteries,
and/or other automotive equipment or supplies or
any of such commodities at wholesale shall apply
for and obtain from the commissioner of revenue
a state license for the privilege of engaging in such
business in this state, and shall pay for such li-
cense an annual tax for each location where such
business is carried on as follows:
In unincorporated communities and in cities
or towns of less than 2,500 population . .$ 25.00
In cities or towns of 2,500 and less than
5,000 population 30.00
In cities or towns of 5,000 and less than
10,000 population 50.00
In cities or towns of 10,000 and less than
20,000 population 75.00
In cities or towns of 20,000 and less than
30,000 population 100.00
In cities or towns of 30,000 population or
more 125.00
Provided, any person, firm, or corporation en-
gaged in the business enumerated in this section
and having no located place of business, but selling
to retail dealers by use of some form of vehicle,
shall obtain from the commissioner of revenue a
statewide license for the privilege of engaging in
such business in this state, and shall pay for such
license an annual tax for each vehicle used in carry-
ing on such business fifty dollars ($50.00).
(a) For the purpose of this section, the word
"wholesale" shall apply to manufacturers, jobbers,
and such others who sell to retail dealers, except
manufacturers of batteries.
(b) No additional license tax under this sub-
section shall be levied upon or collected from any
employee, agent, or salesman whose employer or
principal has paid the tax for each location levied
in this sub-section.
(c) Counties, cities, and towns may levy a li-
cense tax on each place of business located there-
in, taxed under this sub-section, not in excess of
one-half of that levied by the state, with the ex-
ception that the minimum tax may be as much
as ten dollars ($10.00).
4. Motor Vehicle Dealers. — Every person, firm,
or corporation engaged in the business of buying,
selling, distributing, servicing, storing and/or ex-
changing motor vehicles, trailers, semi-trailers,
tires, tools, batteries, electrical equipment, lubri-
cants, and/or automotive equipment, including
radios designed for exclusive use in automobiles,
and supplies in this state shall apply for and ob-
tain from the commissioner of revenue a state li-
cense for the privilege of engaging in such busi-
ness in this state, and shall pay for such license an
annual tax for each location where such business
is carried on, as follows:
In unincorporated communities and in cities
or towns of less than 1,000 population ..$ 25.00
In cities or towns of 1,000 and less than
2,500 population 50.00
In cities or towns of 2,500 and less than
5,000 population 75.00
In cities or towns of 5,000 and less than
10,000 population 110.00
In cities or towns of 10,000 and less than
20,000 population 140.00
In cities or towns of 20,000 and less than
30,000 population 175.00
In cities or towns of 30,000 or more 200.00
Provided, that persons, firms, or corporations
dealing in secondhand or used motor vehicles ex-
clusively shall be liable for the tax as set out in
the foregoing schedule unless such business is of
a seasonal, temporary, transient, or itinerant na-
ture, in which event the tax shall be three hun-
dred dollars ($300.00) for each location where
such business is carried on.
(a) Any person, firm, or corporation who or
which deals exclusively in motor fuels and lu-
bricants, and has paid the license tax levied under
sub-section one of this section, shall not be sub-
ject to any license tax under sub-sections two,
three, and four of this section.
(b) No additional license tax under this sub-
section shall be levied upon or collected from any
employee or salesman whose employer has paid
the tax levied in this sub-section; nor shall the tax
apply to dealers in semi-trailers weighing not
more than five hundred pounds and carrying not
more than one thousand-pound load, and to be
towed by passenger cars.
(c) No dealer shall be issued dealer's tags until
the license tax levied under this sub-section has
been paid.
(d) Premises on which used cars are stored or
sold when owned or operated by a licensed new-
car dealer under the same name shall not be
deemed as a separate place of business when con-
ducted within the corporate limits of any city or
town in which such new-car business is conducted.
(e) Counties, cities, and towns may levy a li-
cense tax on each place of business located there-
in, taxed under this sub-section, not in excess of
one-fourth of that levied by the state, with the
exception that the minimum tax may be as much
as twenty dollars ($20.00) : Provided, if such
business is of a seasonal, temporary, transient, or
itinerant nature, counties, cities, and towns may
levy a tax of three hundred dollars ($300.00) for
each location where such business is carried on.
(1937, c. 127, s. 153.)
§ 7880(85). Emigrant and employment agents.
— -(a) Every person, firm, or corporation, either
as agent or principal, engaged in soliciting, hiring,
and/or contracting with laborers, male or female,
in this state for employment out of the state shall
apply for and obtain from the commissioner of
revenue a state license for each county for the
privilege of engaging in such business, and shall
pay for such license a tax of five hundred dollars
($500.00) for each county in which such business
is carried on.
(b) Every person, firm, or corporation who or
which engages in the business of securing em-
ployment for a person or persons and charging
266 ]
§ 7880(86)
TAXATION
§ 7880(88)
therefor a fee, commission, or other compensation
shall apply for and obtain from the commissioner
of revenue a state license for the privilege of en-
gaging in such business in this state, and shall pay
for such license the following annual tax for each
location in which such business is carried on:
In unincorporated communities and in cities
and towns of less than 2,500 population ..$100.00
In cities or towns of 2,500 and less than
5,000 population 200.00
In cities or towns of 5,000 and less than
10,000 population 300.00
In cities or towns of 10,000 or more popu-
lation 500.00
Provided, that this section shall not apply to any
employment agency operated by the federal gov-
ernment, the state, any county or municipality, or
whose sole business is procuring employees for
work in the production and harvesting of farm
crops within the state.
(c) Any person, firm, or corporation violating the
provisions of this section shall be guilty of a mis-
demeanor and fined, in addition to other penalties,
not less than one thousand dollars ($1,000.00) and/
or imprisoned, in the discretion of the court.
(d) Counties, cities, and towns may levy a li-
cense tax on the business taxed under this section
not in excess of that levied by the state. (1937,
c. 127, s. 154.)
§ 7880(86). Plumbers, heating contractors, and
electricians. — Every person, firm, or corporation
engaged in the business of a plumber, installing
plumbing fixtures, piping or equipment, steam or
gas fitter, or installing hot-air heating systems,
or installing electrical equipment or offering to
perform such services, shall apply for and obtain
from the commissioner of revenue a state license
for the privilege of engaging in such business, and
shall pay for such license the following tax based
on population:
Municipalities of less than two thousand
population $ 5.00
Municipalities of more than two thousand
and less than five thousand population . . 7.50
Municipalities of more than five thousand
and less than ten thousand population . . 10.00
Municipalities of more than ten thousand
and less than twenty thousand population 12.50
Municipalities of more than twenty thou-
sand and less than thirty thousand popu-
lation 15.00
Municipalities of more than thirty thou-
sand and less than forty thousand popu-
lation 17.50
Municipalities of more than forty thousand
and less than fifty thousand population . . 20.00
Municipalities of more than fifty thousand
population 25.00
Provided, that when a licensed plumber employs
only one additional person the tax shall be one-
half: Provided further, that any person, firm, or
corporation engaged exclusively in the business
enumerated in and licensed under this section
shall not be liable for the tax provided in section
7880(53). All plumbing inspectors in cities or
towns shall make a monthly report to the com-
missioner of revenue of all installation or repair
permits issued for plumbing or heating.
Counties shall not levy any license tax on the
business taxed under this section, but cities and
towns may levy a license tax not in excess of the
base license tax levied by the state. (1937, c. 127,
s. 155; c. 249, s. 5.)
§ 7880(87). Trading stamps. — Every person,
firm, or corporation engaged in the business of
issuing, selling, and/or delivering trading stamps,
checks, receipts, certificates, tokens, or other simi-
lar devices to persons, firms, or corporations en-
gaged in trade or business, with the understand-
ing or agreement, expressed or implied, that the
same shall be presented or given by the latter to
their patrons as a discount, bonus, premium, or
as an inducement to secure trade or patronage,
and that the person, firm, or corporation selling
and/or delivering the same will give to the per-
son presenting or promising the same, money or
other thing of value, or any commission or pref-
erence in any way on account of the possession
or presentation thereof, shall apply for and obtain
from the commissioner of revenue a state license
for the privilege of engaging in such business, and
shall pay for such license a tax of two hundred
dollars ($200.00).
(a) This section shall not be construed to ap-
ply to a manufacturer or to a merchant who sells
the goods, wares, or merchandise of such manu-
facturer, offering to present to the purchaser or
customer a gift of certain value as an inducement
to purchase such goods, wares or merchandise.
(b) Counties, cities, or towns may levy a license
tax on the business taxed under this section not
in excess of that levied by the state. (1937, c.
127, s. 156.)
§ 7880(88). Process tax. — (a) In every indict-
ment or criminal proceeding finally disposed of
in the superior court, the party convicted or ad-
judged to pay the cost shall pay a tax of two dol-
lars ($2.00) : Provided, that this tax shall not
be levied in cases where the county is required to
pay the cost.
(b) At the time of suing out the summons in a
civil action in the superior court or other court of
record, or the docketing of an appeal from the
lower court in the superior court, the plaintiff or
the appellant shall pay a tax of two dollars ($2.00) :
Provided, that this tax shall not be demanded of
any plaintiff or appellant who has been duly au-
thorized to sue or appeal in forma pauperis; but
when in cases brought or in appeals in forma
pauperis the costs are taxed against the defendants
the tax shall be included in the bill of costs: Pro-
vided, that this tax shall not be levied in cases
where the county is required to pay the cost, and
in tax foreclosure suits.
(c) No county, city, town, or other municipal
corporation shall be required to pay said tax up-
on the institution of any action brought by it, but
whenever such plaintiff shall recover in such ac-
tion, the said tax shall be included in the bill of
costs and collected from the defendant.
(d) In any case where the party has paid the
aforesaid cost in a civil action and shall recover
in the final decision of the case, then such cost so
paid by him shall be retaxed against the losing
party adjudged to pay the cost, plus five per cent
(5%) which the clerk of the superior court may
retain for his services, and this shall be received
by him, whether he is serving on a salary or fee
[ 267
§ 7880(89)
TAXATION
§ 7880(92)
basis, and if on a salary basis, shall be in addition
to such salary.
(e) This section shall not apply to cases in the
jurisdiction of magistrates' courts, whether civil
or criminal, except upon appeals to the superior
court from the judgment of such magistrate, and
shall not apply for the docketing in the superior
court of a transcript of a judgment rendered in
any other court, whether of record or not.
(f) The tax provided, for in this section shall be
levied and assessed by the clerk of the superior
or other court in all cases described herein; and
on the first Monday in January, April, July, and
October of each and every year, he shall make to
the commissioner of revenue a sworn statement
and report in detail, showing the number of the
case on the docket, the name of the plaintiff or
appellant in civil action or the defendant in crim-
inal action, and accompany such report and state-
ment with the amount of such taxes collected or
should have been collected by him in the preced-
ing three months. Any clerk of the superior
court failing to make the report and pay the
amount of tax due under this section within the
first fifteen days of the month in which such re-
port is required to be made, shall be liable for a
penalty of ten per cent (10%) on the amount of
tax that may be due at the time such report should
be made. (1937, c. 127, s. 157.)
§ 7880(89). Morris Plan or industrial banks. —
Every person, firm, or corporation engaged in the
business of operating a Morris Plan or industrial
bank in the state shall apply for and obtain a state
license from the commissioner of revenue for the
privilege of engaging in such business, and shall
pay for such license the following tax:
When the total resources as of December thirty-
first of the previous calendar year are —
Less than $250,000 $ 75.00
$250,000 and less than $500,000 150.00
$500,000 and less than $1,000,000 225.00
$1,000,000 and less than $2,000,000 300.00
$2,000,000 and less than $5,000,000 450.00
$5,000,000 and over 600.00
(a) Any such bank that shall begin business dur-
ing the current tax year applicable to this article,
the tax shall be calculated on the total resources at
the beginning of business.
(b) Every person, firm, or corporation engaged
in the business of soliciting loans or deposits for
a Morris Plan or other industrial bank not licensed
as such by the state for the county in which such
person, firm, or corporation solicits business shall
apply for and obtain from the commissioner of
revenue a state license for the privilege of en-
gaging in such business, and shall pay for such
license a tax of fifty dollars ($50.00) per annum,
in each county in which business is solicited.
(c) Counties shall not levy any license tax on
the business taxed under this section, but cities
and towns may levy a license tax not in excess of
one-half (y2) of that levied by the state. (1937,
c. 127, s. 158.)
§ 7880(90). Marriage license. — There shall be
levied on all marriage licenses a state license tax
of three dollars on each such license, which shall
be assessed and collected by the register of deeds
of the county in which the license is issued.
The register of deeds of each county shall sub-
mit to the commissioner of revenue, on the first
Monday in January, April, July, and October of
each year a sworn statement or report in detail,,
showing the names of the persons to whom such
license has been issued during the preceding three
months, and accompany such sworn report or
statement with the amount of such state taxes
collected by him or that should have been collected
by him in the preceding three months.
The counties may levy one dollar ($1.00) upon
such marriage license, to be assessed and collected
by the register of deeds and accounted for to the
county treasurer at the same time and in the
same manner as he accounts to the commissioner
of revenue for the state tax. (1937, c. 127, s. 159.)
§ 7880(91). Marble yards. — Every person, firm,
or corporation engaged in the business of manu-
facturing, erecting, jobbing, selling, or offering for
sale monuments, marble tablets, grave-stones or
articles of like kind or, if a non-resident, selling
and erecting monuments, marble tablets, or grave-
stones at retail, shall apply for and obtain from
the commissioner of revenue a state license for
the privilege of engaging in such business in this
state, and shall pay for such license the follow-
ing tax:
In unincorporated communities and cities
or towns of less than 2,000 population . .$ 15.00
In cities or towns of 2,000 and less than
5,000 population 25.00
In cities or towns of 5,000 and less than
10,000 population 30.00
In cities or towns of 10,000 and less than
15,000 population 40.00
In cities or towns of 15,000 and less than
20,000 population 50.00
In cities or towns of 20,000 and less than
25,000 population 60.00
In cities or towns of 25,000 population or
over 70.00
In addition to the license tax levied in this sec-
tion an additional tax shall be paid by the person,
firm, or corporation engaged in the business taxed
under this section of ten dollars ($10.00) for each
person soliciting or selling.
Counties shall not levy any license tax on the
business taxed under this section, but cities and
towns in which the principal office or plant of any
such business is located may levy a license tax not
in excess of that levied by the state. (1937, c. 127,
s. 160.)
§ 7880(92). Manufacturers of ice cream. — (a)
Every person, firm, or corporation engaged in the
business of manufacturing or distributing ice
cream at wholesale shall apply for and obtain
from the commissioner of revenue a state license
for each factory or place where manufactured and/
or stored for distribution, and shall pay an annual
state license tax of ten dollars ($10.00) in cities
and towns of less than 2,500 population; twenty-
five dollars ($25.00) in cities and towns having
population between 2,500 and 10,000, and in cities
and towns having a population of more than 10,-
000, fifty dollars ($50.00) and an additional tax
of one-half cent for each gallon manufactured,
sold, and/or distributed. Reports shall be made
to the commissioner of revenue in such form as
he may prescribe within the first ten days of each
month covering all such gross sales for the pre-
[ 268
§ 7880(93)
TAXATION
§ 7880(93)b
vious month, and the additional tax herein levied
shall be paid monthly at the time such reports are
made.
(b) For the purpose of this section the words
"ice cream" shall apply to ice cream, frozen cus-
tards, sherbets, water ices, and/or similar frozen
products.
(c) Every retail dealer selling- at retail ice
•cream purchased from a manufacturer other than
a manufacturer who has paid the tax imposed in
sub-section (a) of this section shall pay an annual
license tax for the privilege of doing business in
this state of ten dollars ($10.00).
(d) Counties shall not levy a license tax on the
business taxed under this section, but cities and
towns may levy a license tax not in excess of
one-fourth of the above. (1937, c. 127, s. 161.)
§ 7880(83). Branch or chain stores. — Every
person, firm, or corporation engaged in the busi-
ness of operating or maintaining in this state, un-
der the same general management, supervision, or
ownership, two or more stores, or mercantile es-
tablishments where goods, wares, and/or merchan-
dise is sold or offered for sale or from which such
goods, wares and/or merchandise are sold and/or
distributed at wholesale or retail, or controls by
lease, either as lessor or lessee, or by contract, the
manner in which any such store or stores are
operated, or the kinds, character, or brands of
merchandise which are sold therein, shall be
deemed a branch or chain store operator, and
shall apply for and obtain from the commissioner
of revenue a state license for the purpose of en-
gaging in such business of a branch or chain store
•operator, and shall pay for such license a tax ac-
cording to the following schedule:
On each and every such store operated in this
state in excess of one:
For not more than four additional stores,
for each such additional store $50.00
For five additional stores and not more
than eight, for each such additional store 70.00
For nine additional stores and not more
than twelve, for each such additional
store 80.00
For thirteen additional stores and not more
than sixteen, for each such additional store 90.00
For seventeen additional stores and not
more than twenty, for each such ad-
ditional store 100.00
For twenty-one additional stores and not
more than thirty, for each such additional
store 125.00
For thirty-one additional stores and not
more than fifty, for each such addi-
tional store 150.00
For fifty-one additional stores and not
more than one hundred, for each such
additional store 175.00
For one hundred and one additional stores
and not more than two hundred, for each
such additional store 200.00
For two hundred and one additional stores
and over, for each such additional store . . 225.00
The term "chain store" as used in this section
shall include stores operated under separate char-
ters of incorporation, if there is common owner-
ship of a majority of stock in such separately in-
corporated companies, and/or if there is similarity
of name of such separately incorporated com-
panies, and/or if such separately incorporated
companies have the benefit in whole or in part
of group purchase of merchandise, or of common
management. And in like manner the term
"chain store" shall apply to any group of stores
where a majority interest is owned by an individ-
ual or partnership.
Counties shall not levy a license tax on the
business taxed under this section, but cities and
towns may levy a license tax not in excess of
fifty dollars ($50.00) for each chain store located
in such city or town. For the purpose of ascer-
taining the particular unit in each chain of stores
not subject to taxation by the state under this
section, and therefore not liable for city license
tax, the particular store in which the principal of-
fice of the chain in this state is located shall be
designated as the unit in the chain not subject to
this tax.
In enforcing the provisions of this section, the
commissioner of revenue may prorate the total
amount of tax for the chain to the several units
and the amount so prorated may be recovered
from each unit in the chain in the same way as
other taxes levied in this act.
This section shall not apply to retail or whole-
sale dealers in motor vehicles and automotive
equipment and supply dealers at wholesale who
are not liable for tax hereunder on account of the
sale of other merchandise. (1937, c. 127, s. 162.)
Corporation Operating Coal and Ice Yards Liable for
Tax.— A corporation operating coal and ice yards at estab-
lished places of business in several cities of the state, one
or more yards being operated in each of the cities, and
maintaining scales, bins, etc., and a staff composed of a
yard foreman and other employees at each establishment,
was held liable for the tax imposed by this section. At-
lantic Ice, etc., Co. v. Maxwell, 210 N. C. 723, 188 S. F. 381.
Whether or Not Such Yards Constitute "Stores."— It was
held not necessary to decide whether such establishments
constitute "stores" in the common acceptation or the legal
meaning of the word, since the application of the statute
is not limited to stores. Atlantic Ice, etc., Co. v. Maxwell,
210, N. C. 723, 188 S. E- 381.
§ 7880(93)a. Obsolete.
For an analysis of this section, see 13 N. C. Law Rev.,
No. 4, p. 412.
Where the minimum amount of products which the dealer
agreed 1o purchase represented approximately 50 per cent,
of the dealer's yearly requirements of such products for
sale at his station, but where actually all of the taxpay-
er's products were used by the dealer, it was deemed that
the taxpayer controlled by contract, the manner in which
such automotive service station was operated, and the
kind or kinds, character, or brand or brands of merchan-
dise which were sold therein, and the taxpayer was a
branch or chain automotive service station operator with-
in the terms of this section. Maxwell v. Shell Eastern Pe-
troleum Products, 90 F. (2d) 39, 41.
§ 7880(93) b. Wholesale distributors of motor
fuels. — Every person, firm, or corporation engaged
in the business of distributing or selling at whole-
sale any motor fuels in this state shall apply to the
commissioner for an additional annual license to
engage in such business, and shall pay for such
privilege an additional annual license tax deter-
mined and measured by the number of pumps
through which such motor fuels are sold, at re-
tail, equal to the sum produced by multiplying by
four dollars ($4.00) the number of pumps owned
or leased by the distributor or wholesaler through
which motor fuel is retailed.
Any contract or agreement, oral or written, ex-
press or implied by the terms or the effects of
[269
§ 7880(94)
TAXATION
§ 7880(101)
which the tax herein imposed shall be passed on
directly or indirectly to any person, firm, or cor-
poration not engaged in the business hereby taxed
is hereby declared to be against the public policy
of this state and null and void, and any person,
firm, or corporation negotiating such an agree-
ment, or receiving the benefits thereof, shall be
guilty of a misdemeanor and fined or imprisoned
in the discretion of the court.
The tax herein imposed shall be in addition to
all other taxes imposed by this act or under any
other laws.
Counties, cities and towns shall not levy any
tax by reason of the additional tax imposed by
this section, but this section shall in no way af-
fect the right given to counties, cities and towns
to levy taxes under section 7880(84).
The business taxed under this section shall not
be taxed under section 7880(93). (1937, c. 127, s.
162^.)
§ 7880(94). Patent rights and formulas. — Every
person, firm, or corporation engaged in the busi-
ness of selling or offering for sale any patent right
or formula shall apply in advance and obtain from
the commissioner of revenue a separate state li-
cense for each and every county in this state
where such patent right or formula is to be sold
or offered for sale, and shall pay for each such
separate license a tax of ten dollars ($10.00).
Counties, cities or towns may levy a license on
the business taxed under this section not in excess
of the taxes levied by the state. (1937, c. 127, s.
163.)
§ 7880(97). Tax on seals affixed by officers.—
Whenever the seal of the state, of the state treas-
urer, the secretary of state, or of any other public
officer required by law to keep a seal (not including
clerks of courts, notaries public, and other county
officers) shall be affixed to any paper, the tax to>
be paid by the party applying for same shall be
as follows:
For the great seal of the state, on any com-
mission $2.50
For the great seal of the state on warrants of ex-
tradition for fugitives from justice from other
states, the same fee and seal tax shall be collected
from the state making the requisition which is
charged in this state for like service.
For the seal of the state department, to be
collected by the secretary of state $1.00
For the seal of the state treasurer, to be
collected by him 1.00
For a scroll, when used in the absence of a seal,
the tax shall be on the scroll, and the same as
for the seal.
(a) All officers shall keep a true, full, and ac-
curate account of the number of times any of such
seals or scrolls are used, and shall deliver to the
governor of the state a sworn statement thereof.
(b) All seals affixed for the use of any county
of the state, used on the commissions of officers
of the national guard, and any other public officer
not having a salary, under the pension law, or
under any process of court, shall be exempt from
taxation, or to any commission issued by the gov-
ernor to any person in the employ of the state,
or to be employed by the state. (1937, c. 127, s.
166.)
Administrative Provisions
§ 7880(98). Unlawful to operate without license.
— When a license tax is required by law, and when-
ever the general assembly shall levy a license tax
on any business, trade, employment, or profes-
sion, or for doing any act, it shall be unlawful for
any person, firm, or corporation without a license
to engage in such business, trade, employment,
profession, or do the act; and when such tax is
imposed it shall be lawful to grant a license for
the business, trade, employment, or for doing the
act; and no person, firm, or corporation shall be
allowed the privilege of exercising any business,
trade, employment, profession, or the doing of
any act taxed in this schedule throughout the state
under one license, except under a state-wide li-
cense. (1937, c. 127, s. 181.)
§ 7880(99). Manner of obtaining license from
the commissioner of revenue. — (a) Every person,
firm, or corporation desiring to obtain a state li-
cense for the privilege of engaging in any business,
trade, employment, profession, or of the doing of
any act for which a state license is required shall,
unless otherwise provided by law, make applica-
tion therefor in writing to the commissioner of
revenue, in which shall be stated the county, city,
or town and the definite place therein where the
business, trade, employment, or profession is to
be exercised; the name and resident address of
the applicant, whether the applicant is an individ-
ual, firm, or corporation; the nature of the busi-
ness, trade, employment, or profession; number
of years applicant has prosecuted such business,
trade, employment, or profession in this state, and
such other information as may be required by the
commissioner of revenue. The application shall
be accompanied by the license tax prescribed in
this article.
(b) Upon receipt of the application for a state
license with the tax prescribed by this article, the
commissioner of revenue, if satisfied of its cor-
rectness, shall issue a state license to the applicant
to engage in the business, trade, employment, or
profession in the name of and at the place set out
in the application. No license issued by the com-
missioner of revenue shall be valid or have any
legal effect unless and until the tax prescribed by
law has been paid, and the fact of such shall ap-
pear on the face of the license. (1937, c. 127, s.
182.)
§ 7880(100). Persons, firms, and corporations
engaged in more than one business to pay tax on
each. — Where any person, firm, or corporation is
engaged in more than one business, trade, em-
ployment, or profession which is made under the
provisions of this article subject to state license
taxes, such persons, firms, or corporations shall
pay the license tax prescribed in this article for
each separate business, trade, employment or pro-
fession. (1937, c. 127, s. 183.)
§ 7880(101). Effect of change in name of firm.
— No change in the name of a firm, partnership,
or corporation, nor the taking in of a new part-
ner, nor the withdrawal of one or more of the
firm, shall be considered as commencing business;
but if any one or more of the partners remain in
the firm, or if there is change in ownership of less
than a majority of the stock, if a corporation, the
[270
§ 7880(102)
TAXATION
§ 7880(106)
business shall be regarded as continuing. (1937,
c. 127, s. 184.)
§ 7880(102). License may be changed when
place of business is changed. — When a person,
firm, or corporation has obtained a state license
to engage in any business, trade, employment, or
profession at any definite location in a county, and
desires to remove to another location in the same
county, the commissioner of revenue may, upon
proper application, grant such person, firm, or
corporation permission to make such move, and
may endorse upon the state license his approval
of change in location. (1937, c. 127, s. 185.)
§ 7880(103). Property used in a licensed busi-
ness not exempt from taxation. — A state license,
issued under any of the provisions of this article,
shall not be construed to exempt from other
forms of taxation the property employed in such
licensed business, trade, employment or profes-
sion. (1937, c. 127, s. 186.)
§ 7880(104). Engaging in business without a
license. — (a) All state license taxes under this ar-
ticle or schedule, unless otherwise provided for,
shall be due and payable annually on or before
the first day of June of each year, or at the date
of engaging in such business, trade, employment,
and/or profession, or doing the act.
(b) If any person, firm, or corporation shall
continue the business, trade, employment, or pro-
fession, or to do the act, after the expiration of
a license previously issued, without obtaining a
new license, he or it shall be guilty of a misde-
meanor, and upon conviction shall be fined and/or
imprisoned in the discretion of the court, but the
fine shall not be less than twenty per cent (20%)
of the tax in addition to the tax and the costs;
and if such failure to apply for and obtain a new
license be continued, such person, firm or corpo-
ration shall pay additional tax of five per centum
(5%) of the amount of the state license tax
which was due and payable on the first day of
June of the current year, in addition to the state
license tax imposed by this article, for each and
every thirty days that such state license tax re-
mains unpaid from the date that same was due
and payable, and such additional tax shall be as-
sessed by the commissioner of revenue and paid
with the state license tax, and shall become a part
of the state license tax. The penalties for de-
layed payment hereinbefore provided shall not
impair the obligation to procure a license in ad-
vance or modify any of the pains and penalties
for failure to do so.
The provisions of this Section shall apply to
taxes levied by the counties of the state under
authority of this act in the same manner and to
the same extent as they apply to taxes levied by
the state.
(c) If any person, firm, or corporation shall
commence to exercise any privilege or to pro-
mote any business, trade, employment, or profes-
sion, or to do any act requiring a state license
under this article without such state license, he
or it shall be guilty of a misdemeanor, and shall
be fined and/or imprisoned in the discretion of
the court; and if such failure, neglect, or refusal
to apply for and obtain such state license be con-
tinued, such person, firm, or corporation shall pay
an additional tax of five per centum (5%) of the
amount of such state license tax which was due
and payable at the commencement of the busi-
ness, trade, employment, or profession, or doing
the act, in addition to the state license tax im-
posed by this article, for each and every thirty
(30) days that such state license tax remains un-
paid from the date that same was due and pay-
able, and such additional tax shall be assessed by
the commissioner of revenue and paid with the
state license tax and shall become a part of the
state license tax.
(d) If any person, firm, or corporation shall
fail, refuse, or neglect to make immediate pay-
ment of any taxes due and payable under this ar-
ticle, additional taxes, and/or any penalties im-
posed pursuant thereto, upon demand, the com-
missioner of revenue shall certify the same to the
sheriff of the county in which such delinquent
lives or has his place of business, and such sher-
iff shall have the power and shall levy upon any
personal or real property owned by such delin-
quent person, firm, or corporation, and sell the
same for the payment of the said tax or taxes,
penalty and costs, in the same manner as pro-
vided by law for the levy and sale of property for
the collection of other taxes; and if sufficient
property is not found, the said sheriff or deputy
commissioner shall swear out a warrant before
some justice of the peace or recorder in the
county for the violation of the provisions of this
act and as provided in this act. (1937, c. 127, s.
187.)
§ 7880(105). Each day's continuance in busi-
ness without a state license a separate offense. —
Each and every day that any person, firm, or cor-
poration shall continue to exercise or engage in
any business, trade, employment, or profession,
or do any act in violation of the provisions of this
article, shall be and constitute a distinct and a
separate offense. (1937, c. 127, s. 188.)
§ 7880(106). Duties of commissioner of revenue.
— (a) Except where otherwise provided, the com-
missioner of revenue shall be the duly authorized
agent of this state for the issuing of all state li-
censes and the collection of all license taxes un-
der this article, and it shall be his duty and the
duty of his deputies to make diligent inquiry to
ascertain whether all persons, firms, or corpora-
tions in the various counties of the state who are
taxable under the provisions of this article have
applied for the state license and paid the tax
thereon levied.
(b) The commissioner of revenue shall con-
tinually keep in his possession a sufficient sup-
ply of blank state license certificates, with cor-
responding sheets and duplicates consecutively
numbered; shall stamp across each state license
certificate that is to be good and valid in each
and every county of the state the words "state-
wide license," and shall stamp or imprint on each
and every license certificate the words "issued
by the commissioner of revenue."
(c) Neither the commissioner of revenue nor
any of his deputies shall issue any duplicate li-
cense unless expressly authorized to do so by a
provision of this article or schedule, and unless
the original license is lost or has become so mu-
tilated as to be illegible, and in such cases the
commissioner of revenue is authorized to issue a
271
§ 7880(107)
TAXATION
§ 7880(110)
duplicate certificate for which the tax is paid, and
shall stamp upon its face "duplicate." (1937, c.
127, s. 189.)
§ 7880(107). License to be procured before be-
ginning business. — (a) Every person, firm, or
corporation engaging in any business, trade,
and/or profession, or doing any act for which a
state license is required and a tax is to be paid
under the provisions of this article or schedule,
shall, annually in advance, on or before the first
day of June of each year, or before engaging in
such business, trade, and/or profession, or doing
the act, apply for and obtain from the commis-
sioner of revenue a state license for the privilege
of engaging in such business, trade, and/or pro-
fession, or doing such act, and shall pay the tax
levied therefor.
(b) Licenses shall be kept posted where busi-
ness is carried on. No person, firm, or corpora-
tion shall engage in any business, trade, and/or
profession, or do the act for which a state license
Is required in this article or schedule, without
having such state license posted conspicuously at
the place where such business, trade, and/or pro-
fession is carried on; and if the business, trade,
and/or profession is such that license cannot be
so posted, then the itinerant licensee shall have
such license required by this article or schedule
in his actual possession at the time of carrying
on such business, trade, and/or profession, or do-
ing the act named in this article or schedule, or
a duplicate thereof.
(c) Any person, firm, or corporation failing,
neglecting, or refusing to have the state license
required under this article or schedule posted
conspicuously at the place of business for which
the license was obtained, or to have the same or
a duplicate thereof in actual possession if an itin-
erant, shall pay an additional tax of twenty-five
dollars ($25.00) for each and every separate of-
fense, and each day's failure, neglect, or refusal
shall constitute a separate offense. (1937, c. 127,
s. 190.)
§ 7880(108). Sheriff and city clerk to report. —
The sheriff of each county and the clerk of the
board of aldermen of each city or town in the
state shall, on or before the fifteenth day of June
of each year, make a report to the commissioner
of revenue, containing the names and the busi-
ness, trade, and/or the profession of every per-
son, firm, or corporation in his county or city
who or which is required to apply for and obtain
a state license under the provisions of this article
or schedule, and upon such forms as shall be pro-
vided and in such detail as may be required by
the commissioner of revenue. (1937, c. 127, s.
191.)
Art. 3. Schedule C. Franchise Tax
§ 7880(109). Defining taxes in this article.—
The taxes levied and assessed in this article or
schedule shall be paid as specifically herein pro-
vided, and shall be for the privilege of engaging
in or carrying on the business or doing the act
named; and, if taxpayer be a corporation, shall
be a tax also for the continuance of its corpo-
rate rights and privileges granted under its char-
ter, if incorporated in this state, or by reason of
any act of domestication if incorporated in an-
[27
other state, and such taxes and taxpayers shall
be subject to other pertinent regulations men-
tioned in this act. The taxes levied in this ar-
ticle or schedule shall be for the fiscal year of the
state in which said taxes become due, and the
lien of such taxes shall attach annually to all real
estate of the taxpayer within the state on the
date that such taxes are due and payable; and
said lien shall continue until such taxes, with any
interest, penalty and costs which shall accrue
thereon shall have been paid. (1937, c. 127, s.
201.)
§ 7880(110). Franchise or privilege tax on rail-
roads.— Every person, firm, or corporation, do-
mestic or foreign, owning and/or operating a
railroad in this state shall, in addition to all other
taxes levied and assessed in the state, pay annu-
ally to the commissioner of revenue a franchise,
license, or privilege tax for the privilege of en-
gaging in such railroad business within the state,
of North Carolina, as follows:
(a) Such person, firm, or corporation shall
during the month of June each year furnish to
the commissioner of revenue a copy of the re-
port and statement required by the Machinery
Act to be made to the state board of assessment,
and such other and further information as the
commissioner of revenue may require.
(b) The value upon which the tax herein levied
shall be assessed by the commissioner of revenue
and the measure of the extent to which every
such railroad company is carrying on intrastate
commerce within the state of North Carolina
shall be the value of the total property, tangible
and intangible, in this state, for each such rail-
road company, as assessed for ad valorem taxa-
tion during the calendar year in which such re-
port is due.
(c) The franchise or privilege tax which every
such railroad company shall pay for the privi-
lege of carrying on or engaging in intrastate com-
merce within this state shall be ninety one-hun-
dredths of one per cent (90/100%) of the value
ascertained as above by the commissioner of
revenue, and tax shall be due and payable within
thirty days after date of notice of such tax.
(d) If any such person, firm, or corporation
shall fail, neglect, or refuse to make and deliver
the report and statement provided for in this sec-
tion, the commissioner of revenue shall estimate,
from the reports and records on file with the
state board of assessment, the value upon which
the amount of tax due by such company under
this section shall be computed, and shall assess
the franchise or privilege tax upon such estimate,
and shall collect the same, together with such
penalties herein imposed for failure to make the
report and statement.
(e) It is the intention of this section to levy
upon railroad companies a license, franchise, or
privilege tax for the privilege of engaging in in-
trastate commerce carried on wholly within this
state, and not a part of interstate commerce; that
the tax provided for in this section is not intended
to be a tax for the privilege of engaging in in-
terstate commerce, nor is it intended to be a tax
on the business of interstate commerce, nor is it
intended to be a tax having any relation to the
interstate or foreign business or commerce in
3]
§ 7880(111)
TAXATION
§ 7880(112)
which any such railroad company may be en-
gaged in addition to its business in this state.
(f) No county, city or town shall levy a li-
cense, franchise, or privilege tax on the business
taxed under this section. (1937, c. 127, s. 202.)
§ 7880(111). Franchise or privilege tax on
electric light, power, street railway, gas, water,
sewerage, and other similar public service com-
panies not otherwise taxed. — (1) Every person,
firm, or corporation, domestic or foreign, other
than municipal corporations, engaged in the busi-
ness of furnishing electricity, electric lights, cur-
rent, power or gas, or owning and/or operating
a water or public sewerage system, or owning
and/or operating a street railway, street bus or
similar street transportation system, for the trans-
portation of freight or passengers for hire, shall,
within thirty days after the first day of January,
April, July and October of each year, make and
deliver to the commissioner of revenue, upon such
forms and blanks as required by him, a report
verified by the oath of the officer or authorized
agent making such report and statement, contain-
ing the following information:
(a) The total gross receipts for the three months
ending the last day of the month immediately
preceding such return from such business within
and without this state.
(b) The total gross receipts for the same period
from such business within this state.
(c) The total gross receipts from the commodi-
ties or services described in this section sold to
any other person, firm, or corporation engaged in
selling such commodities or services to the public,
and actually sold by such vendee to the public for
consumption and tax paid to this state by the
vendee, together with the name of such vendee,
with the amount sold and the price received there-
for.
(d) The total amount and price paid for such
commodities or services purchased from others
engaged in the above named business in this state,
and the name or names of the vendor.
(2) From the total gross receipts within this
state there shall be deducted the gross receipts re-
ported in sub-section (1) (c) of this section: Pro-
vided, that this deduction shall not be allowed
where the sale of such commodities were made to
any person, firm, or corporation or municipality
which is exempted by law from the payment of
the tax herein imposed upon such commodities
when sold or used by it.
(3) On every such person, firm, or corporation
there is levied an annual franchise or privilege tax
of six per cent (6%), payable quarterly, of the
total gross receipts derived from such business
within this state, after the deductions allowed as
herein provided for, which said tax shall be for
the privilege of carrying on or engaging in the
business named in this state, and shall be paid
to the commissioner of revenue at the time of
filing the report herein provided for: Provided, the
tax upon privately owned water companies shall
be four per cent (4%) of the total gross receipts
derived from such business within this state: Pro-
vided further, the tax on gas companies shall be
at the rate of four per cent (4%) upon the first
twenty-five thousand dollars ($25,000) of the total
gross receipts, and the tax on all gross receipts in
N. C. Supp.— 18 [ 2
excess of twenty-five thousand dollars ($25,000)
shall be at the rate of six per cent (6%).
(4) Any person, firm, or corporation failing to
file report and pay tax found to be due in accord-
ance with the provisions of this section at the time
herein provided for shall, in addition to all other
penalties prescribed in this act, pay an additional
tax of ten per cent (10%) and interest at the rate
of six per cent (6%) per annum on the total
amount of tax due and additional tax incurred,
which said additional tax shall in no case be less
than two dollars ($2.00), and shall be added to the
tax, together with interest accrued, and shall be-
come an integral part of the tax.
(5) The report herein required of gross receipts
within and without the state, shall include the
total gross receipts for the period stated of
all properties owned and operated by the re-
porting person, firm, or corporation on the
first day of each calendar quarter year, whether
operated by it for the previous annual period, or
whether intermediately acquired by purchase or
lease, it being the intent and purpose of this sec-
tion to measure the amount of privilege or fran-
chise tax in each calendar quarter year with ref-
erence to the gross receipts of the property ope-
rated for the previous calendar quarter year and
to fix liability for the payment of the tax on the
owner, operator, or lessor on the first day of
January, April, July and October of each year.
(6) Companies taxed under this section shall
not be required to pay the franchise tax imposed
by sections 7880(118-119) or 7880(ll9)b, unless
the tax levied by sections 7880(118-119) and 7880-
(119)b exceed the tax levied in this section, and
no county shall impose a franchise or privilege tax
upon the business taxed under this section, and
no city or town shall impose a greater privilege
or license tax upon such companies than the ag-
gregate privilege or license tax which is now im-
posed by any such city or town. (1937, c. 127,
s. 203.)
§ 7880(112). Franchise or privilege tax on
Pullman, sleeping, chair, and dining cars. — Every
person, firm, or corporation, domestic or foreign,
engaged in the business of operating in this state
any Pullman, sleeping, chair, dining or other simi-
lar cars, where an extra charge is made for the
use or occupancy of same, shall annually, on or
before the first day of August, make and deliver
to the commissioner of revenue, upon such forms,
blanks, and in such manner as may be required by
him, a full, accurate, and true report and state-
ment, verified by oath of the officer or authorized
agent making such report, of the total gross re-
ceipts of such person, firm, or corporation from
such business wholly within this state during the
year ending the thirtieth day of June of the cur-
rent year.
(1) Such person, firm, or corporation shall pay
an annual privilege, license, or franchise tax of
ten per cent (10%) of the total gross receipts de-
rived from such business wholly within this state;
which said tax shall be paid for the privilege of
carrying on or engaging in the business named in
this state, and shall be paid to the commissioner
of revenue at the time of filing the report and
statements herein provided for.
(2) No county, city or town shall impose any
3]
§ 7880(113)
TAXATION
§ 7880(114)
franchise or privilege tax on the business taxed
under this section. (1937, c. 127, s. 204.)
§ 7880(113). Franchise or privilege tax on ex-
press companies. — (1) Every person, firm, or cor-
poration, domestic or foreign, engaged in this state
in the business of an express company as defined
in this act, shall, in addition to a copy of the re-
port required in the Machinery Act, annually, on
or before the first day of August, make and de-
liver to the commissioner of revenue a report and
statement, verified by the oath of the officer or
authorized agent making such report or state-
ment, containing the following information as of
the first day of July of the current year:
(a) The average amount of invested capital em-
ployed within and without the state in such busi-
ness during the year ending the thirtieth day of
June of the current year.
(b) The total net income earned on such in-
vested capital from such business during the year
ending the thirtieth day of June of the current
year.
(c) The total number of miles of railroad lines
or other common carriers over which such express
companies operate in this state during the year
ending the thirtieth day of June of the current
year.
(2) Every such person, firm, or corporation,
■domestic or foreign, engaged in such express busi-
ness within this state shall pay to the commissioner
of revenue, at the time of filing the report required
in this section, the following annual franchise or
privilege tax for the privilege of engaging in such
express business within this state:
Where the net income on the average capital
invested during the year ending the thirtieth day
of June of the current year is six per cent (6%)
or less, fifteen dollars ($15.00) per mile of railroad
lines over which operated.
More than six per cent (6%) and less than eight
per cent (8%), twenty-one dollars ($21.00) per
mile of railroad lines over which operated.
Eight per cent (8%) and over, twenty-five dol-
lars ($25.00) per mile of railroad lines over which
operated.
(3) Every such person, firm, or corporation,
domestic or foreign, who or which engages in
such business without having had previous re-
ceipts upon which to levy the franchise or privilege
tax, shall report to the commissioner at the time
of beginning business in this state and pay for
such privilege of engaging in business in this state
a tax of seven dollars and fifty cents ($7.50) per
mile of the railroad lines over which operated or
proposed to operate.
(4) Counties shall not levy a franchise, privi-
lege, or license tax on the business taxed under
this section; and municipalities may levy an an-
nual franchise, privilege, or license tax on such
express companies for the privilege of doing busi-
ness within the municipal limits as follows:
Municipalities of less than 500 population. .$ 5.00
Municipalities of 500 and less than 1,000
population 10.00
Municipalities of 1,000 and less than 5,000
population 20.00
Municipalities of 5,000 and less than 10,000
population 30.00
[2
Municipalities of 10,000 and less than 20,000
population 50.00
Municipalities of 20,000 and over 75.00
(1937, c. 127, s. 205.)
§ 7880(114). Franchise or privilege tax on tele-
grlaph companies, — (1) Every person, firm, or
corporation, domestic or foreign, engaged in
operating the apparatus necessary for communica-
tion by telegraph between points within this state,
shall annually, on or before the first day of August,
make and deliver to the commissioner of revenue,
upon such forms and in such manner as required
by him, a report verified by the oath of the officer
or authorized agent making such report and state-
ment, containing the following information:
(a) The total gross receipts from such business
within and without this state for the entire calen-
dar year next preceding due date of such return.
(b) The total gross receipts for the same period
from such business within this state.
(2) On every such person, firm or corporation
there is hereby levied an annual franchise or privi-
lege tax of six per cent (6%) of the total gross
receipts derived from such business within this
state. Such gross receipts shall include all charges
for services, all rentals, fees and all other similar
charges from business which both originates and
terminates in the state of North Carolina, whether
such business in the course of transmission goes
outside this state or not. The tax herein levied
shall be for the privilege of carrying on or engag-
ing in the business named in this state, and shall
be paid to the commissioner of revenue at the time
of filing the report herein provided for: Provided,
that the tax on the first one thousand dollars
($1,000.00) of gross receipts of any such telegraph
company shall be at the rate of four per cent
(4%), and all gross receipts in excess of said first
one thousand dollars ($1,000.00) shall be taxed at
the rate of six per cent (6%).
(3) The report herein required shall include the
total gross receipts for the period stated of all
properties owned, leased, controlled and/or over
which operated by such person, firm or corpora-
tion in this state.
(4) Any person, firm or corporation failing to
file report and pay tax found to be due in ac-
cordance with the provisions of this section at the
time herein provided for shall, in addition to all
other penalties prescribed in this act, pay an ad-
ditional tax of ten per cent (10%) and interest at
the rate of six per cent (6%) per annum on the"
total amount of tax due and additional tax in-
curred, which said additional tax shall in no case1
be less than two dollars ($2.00), and shall be
added to the tax, together with interest accrued,
and shall become an integral part of the tax.
(5) (a) Nothing in this section shall be con-
strued to authorize the imposition of any tax upon
interstate commerce or upon any business trans-
acted by the federal government.
(b) Counties shall not levy a franchise, privi-
lege, or license tax on the business taxable under
this section, and municipalities may levy the fol-
lowing license tax:
Less than 5,000 population $10.00
5,000 and less than 10,000 population 15.00
74 1
§ 7880(115)
TAXATION
§ 7880(116)
10,000 and less than 20,000 population 20.00
20,000 population and over 50.00
(1937, c. 127, s. 206.)
§ 7880(115). Franchise or privilege tax on tele-
phone companies, — Every person, firm, or corpo-
ration, domestic or foreign, owning and/or operat-
ing a telephone business for the transmission of
messages and/or conversations to, from, through,
in or across this state, shall, within thirty days
after the first day of January, April, July and
October of each year, make and deliver to the
commissioner of revenue a quarterly return, veri-
fied by the oath of the officer or authorized agent
making such return, showing the total amount of
gross receipts of such telephone company for the
three months ending the last day of the month
immediately preceding such return, and pay, at
the time of making such return, the franchise,
license or privilege tax herein imposed.
(a) An annual franchise or privilege tax of six
per cent (6%), payable quarterly, on the gross re-
ceipts of such telephone company, is herein im-
posed for the privilege of engaging in such busi-
ness within this state. Such gross receipts shall
include all rentals, other similar charges, and all
tolls received from business which both originates
and terminates in the state of North Carolina,
whether such business in the course of transmis-
sion goes outside of this state or not: Provided,
where any city or town in this state has hereto-
fore sold at public auction to the highest bidder
the right, license and/or privilege of engaging in
such business in such city or town, based upon a
percentage of gross revenue of such telephone
company, and is now collecting and receiving
therefor a revenue tax not exceeding one per cent
of such revenues, the amount so paid by such
operating company, upon being certified by the
treasurer of such municipality to the commis-
sioner of revenue, shall be from time to time
credited by the commissioner of revenue to such
telephone company upon the tax imposed by the
state under this section.
(b) Any such person, firm or corporation, do-
mestic or foreign, who or which fails, neglects, or
refuses to make the return, and/or pay the tax at
the time provided for in this section, shall pay an
additional tax of ten per cent (10%) and interest
at the rate of six per cent (6%) per annum on
the total amount of tax due and additional tax in-
curred, which said additional tax shall not be less
than two dollars ($2.00) in any case, and shall be
added to the tax, together with the interest ac-
crued, and shall become an integral part of the tax.
(c) Nothing in this section shall be construed
to authorize the imposition of any tax upon in-
terstate commerce.
(d) Counties, cities and towns shall not levy
any franchise, license, or privilege tax on the
business taxed under this section. (1937, c. 127,
s. 207.)
§ 7880(116). Franchise or privilege tax on in-
surance companies. — Every person, firm, or cor-
poration, domestic or foreign, which contracts on
his, their, or its account to issue any policies for
or agreements for life, fire, marine, surety, guar-
anty, fidelity, employers' liability, liability, credit,
health, accident, livestock, plate glass, tornado,
automobile, automatic sprinkler, burglary, steam
boiler, and all other forms of insurance shall ap-
ply for and obtain from the insurance commis-
sioner a state license for the privilege of engaging
in such business within this state, and shall pay
for such state license the following tax:
(1) The annual license or privilege tax, due and
payable on or before the first day of April of each
year, shall be for each such license issued to:
An insurance rate-making company or as-
sociation $350.00
A life insurance company or association.. 250.00
A fire insurance company or association of
companies operating a separate or dis-
tinct plant of agencies 200.00
An accident or health insurance company or
association '. 200.00
A marine insurance company or association 200.00
A fidelity or surety company or association 200.00
A plate-glass insurance company or associ-
ation 200.00
A boiler insurance company or association 200.00
A foreign mutual insurance company or as-
sociation 200.00
A domestic farmers' mutual insurance com-
pany or association 10.00
A fraternal order 25.00
A bond, investment, dividend, guaranty,
registry, title guaranty, credit, fidelity,
liability, or debenture company or associ-
ation 200.00
All other insurance companies or associa-
tions except domestic mutual burial as-
sociations 200.00
On all domestic mutual burial associations, and
on each additional branch thereof operated (and
where any mutual burial association has desig-
nated more than one undertaker to operate for
it), the tax shall be in each instance as upon a
separate branch thereof:
With a membership of less than 5,000....$ 50.00
With a membership of 5,000 or less than
15,000 75.00
With a membership of 15,000 or more.... 100.00
When the paid-in capital stock and/or surplus
of a life insurance company does not exceed one
hundred thousand dollars ($100,000.00) the license
tax levied in sub-section one shall be one-half the
amount named.
(2) Every such person, firm, or corporation,
domestic or foreign, engaged in the business here-
inbefore described in this section, shall by its gen-
eral agent, president, or secretary, within the first
fifteen days of February and August of each year,
file with the insurance commissioner of this state)
a full, accurate, and correct report and statement,
verified by the oath of such general agent or
president, secretary, or some officer at the homd
or head office of the company or association in
this country, of the total gross premium receipts1
including premiums or deposits on annuity con-
tracts derived from such insurance business from
the residents of this state, or on property located
therein, during the preceding six months of the
previous calendar year, and at the time of making!
such report and statement shall, except as here-
inafter provided, pay to the insurance commis-
sioner, in addition to other license taxes imposed;
in this section, a license or privilege tax for the
275 ]
§ 7880(118-119)
TAXATION
§ 7880(118-119)
privilege of engaging in such business in this state,
a license tax of two and one-half per cent {2l/2%)
upon the amount of such gross premium receipts,
with no deduction for dividends, whether returned
in cash or allowed in payment or reduction of
premiums or for additional insurance, and with-
out any deduction except for return premiums or
return assessments. The rate of tax on premiums
for liability under the Workmen's Compensation
Act for all insurance companies collecting such
premiums shall be four per cent (4%) on all pre-
miums collected in this state on such liability in-
surance, and a corresponding rate of tax shall be
collected from self-insurers: Provided, if any gen-
eral agent shall file with the insurance commis-
sioner a sworn statement showing that one-fifth
of the entire assets of his company are invested
and are maintained in any of the following se-
curities or property, to wit: bonds of this state or
any county, city, town, or school district of this
state, or in loans to citizens or corporations or
organizations of this state, then such tax shall be
three-fourths per centum of such gross premium
receipts: Provided, that the provisions herein as
to tax and premium receipts shall not apply to do-
mestic farmers' mutual fire insurance companies,
nor to fraternal orders or societies that do not
operate for a profit and do not issue policies on
any person except its members.
(3) Every special or district agent, manager, or
organizer, general agent, local canvassing agent,
resident, or non-resident adjuster, or non-resident
broker, representing any company referred to in
this section, shall on or before the first day of
April of each year, apply for and obtain from the
insurance commissioner a license for the privilege
of engaging in such business in this state, and
shall pay for such license for each company rep-
resented the following annual tax:
Special or district agent, manager, or organ-
izer (including seal) $ 5.00
General agent 6.00
Local or canvassing agent (including seal) 2.50
Resident fire insurance adjuster 2.00
Non-resident fire insurance adjuster 5.00
Non-resident broker 10.00
But any such company having assets invested
and maintained in this state as provided in sub-
section three of this section shall pay the follow-
ing license fees: for
Special agent (including seal) $2.50
Local canvassing agent (including seal) 1.00
Any person not licensed as an insurance agent
on April first, one thousand nine hundred and
thirty-three, and applying for license thereafter,
shall pay an examination fee of ten dollars ($10.00),
to foe paid to the insurance commissioner as other
license fees and taxes: Provided, agents for farm
mutual fire insurance companies shall not be re-
quired to take an examination and pay the ex-
amination fee.
In the event a license issued under this sub-sec-
tion is lost or destroyed, the insurance commis-
sioner, for a fee of fifty cents ($.50) may certify
to its issuance, giving number, date, and form,
which may be used by the original party named
thereon in lieu of the said original license. There
shall be no charge for the seal affixed to such cer-
tificate of said license.
(4) Any person, firm, or corporation, domestic
or foreign, exchanging reciprocal or inter-insur-
ance contracts as provided herein, shall pay
through their attorneys an annual license fee, due
and payable on the first day of April of each year,
of two hundred dollars ($200.00) and two and
one-half per cent (2J/2%) of the gross premium
deposits, and also all other regular fees prescribed
by law, to be reported, assessed, and paid as other
gross premium taxes provided for in this section:
Provided, the tax on workmen's compensation in-
surance premiums shall be the same as that fixed
in sub-section two of this section.
(5) Companies paying the tax levied in this sec-
tion shall not be liable for franchise tax on their
capital stock, and no county, city, or town shall be
allowed to impose any additional tax, license, or
fee, other than ad valorem taxes, upon any insur-
ance company or association paying the tax levied
in this section. The license fees and taxes imposed
in this section shall be paid to the insurance com-
missioner. (1937, c. 127, s. 208.)
§ 7880(118-119). Franchise or privilege tax on
domestic and foreign corporations. — (l) Every
corporation, domestic and foreign, incorporated
or, by any act, domesticated under the laws of this
state, except as otherwise provided in this article
or schedule, shall, on or before the thirty-first day
of July of each year, make and deliver to the com-
missioner of revenue in such form as he may pre-
scribe a full, accurate and complete report and
statement verified by the oath of its duly au-
thorized officers, containing such facts and infor-
mation as may be required by the commissioner
of revenue as shown by the books and records of
the corporation as at the close of its last calendar
or fiscal year next preceding July thirty-first of
the year in which report is due.
(2) Every such corporation taxed under this
section shall determine the total amount of its
issued and outstanding capital stock, surplus and
undivided profits; no reservation or allocation from
surplus or undivided profits shall be allowed other
than for definite and accrued legal liabilities, ex-
cept as herein provided; taxes accrued, dividends
declared and reserves for depreciation of tangible
assets as permitted for income tax purposes shall
be treated as deductible liabilities. Every such
corporation, the capital stock of which is inade^
quate for its business needs, which is a subsidiary
of another corporation or closely affiliated there-
with by stock ownership, shall include its indebt-
edness owed to, endorsed or guaranteed by the
parent or affiliated corporation in the amount of
capital stock, surplus and undivided profits in de-
termining the basis for its franchise tax liability
under this act. Treasury stock shall not be con-
sidered in computing capital stock, surplus and
undivided profits as basis for franchise tax. In
determining the total amount of the capital stock,
surplus and undivided profits, as herein defined,
effect shall be given to the final judgment of any
court approving a corporate reorganization entered
prior to July first of any calendar year and since
the close of the corporation's last calendar or4
fiscal year next preceding.
(3) After ascertaining and determining the
amount of its capital stock, surplus and undivided
profits, as herein provided, every foreign corpora-
[ 276 ]
§ 7880(118-119)
TAXATION
§ 7880(118-119)
tion permitted to do business in this state shall
allocate to such business in this state a proportion
of the total amount of its capital stock, surplus
and undivided profits as herein defined, according
to the following rules:
(A) If the principal business of a company in
this state is manufacturing, or if it is any form of
collecting, buying, assembling, or processing goods
and materials within this state, the entire net in-
come of such corporation shall be apportioned to
North Carolina on the basis of the ratio obtained
by taking the arithmetical average of the follow-
ing two ratios:
(a) The ratio of the book value of its real estate
and tangible personal property in this state on the
date of the close of the calendar or fiscal year of
such corporation in the income year is to the book
value of its entire real estate and tangible per-
sonal property then owned by it, with no deduc-
tions on account of encumbrances thereon.
(b) The ratio of the total cost of manufactur-
ing, collecting, buying, assembling, or processing
within this state during the income year to the
total cost of manufacturing, collecting, assem-
bling, or processing within and without the state.
The term "cost of manufacturing, collecting, buy-
ing, assembling, or processing within and without
this state" as used herein shall be interpreted in
a manner to conform as nearly as may be to the
best accounting practice in the trade or business.
Unless in the opinion of the commissioner of rev-
enue the peculiar circumstances in any case justify
a different basis, this term shall be generally in-
terpreted to include as elements of cost within and
without this state the following:
(c) The total cost of all goods, materials, and
supplies used in manufacturing, assembling, or
processing, regardless of where purchased.
(d) The total wages and salaries paid or ac-
crued during the income year in such manufactur-
ing, assembling, or processing activities.
(e) The total overhead or manufacturing burden
properly assignable according to good accounting
practice to such manufacturing, assembling, or
processing activities.
(f) The term "book value" as used herein shall
be defined to mean original cost plus additions
and improvements less reserve for depreciation on
the date of the close of the calendar or fiscal year
of such company, unless in the opinion of the
commissioner of revenue the peculiar circum-
stances in any case justify a different basis.
(g) The words "tangible personal property"
shall be taken to mean corporeal personal prop-
erty such as machinery, tools, implements, goods,
wares and merchandise, and shall not be taken to
mean cash on hand or in bank, shares of stock,
bonds, notes, accounts receivable, credits, special
privileges, franchises, good will, or evidence of an
interest in property and evidences of debt.
(h) The word "manufacturing" shall be de-
fined as mining and all processes of fabricating or
of curing raw material.
(B) If the principal business of a company in
this state is selling, distributing or dealing in
tangible personal property within this state, the
entire net income of such company shall be ap-
portioned to North Carolina on the basis of the
ratio obtained by taking the arithmetical average
of the following two ratios:
[2?
(a) The ratio of the book value of its real es-
tate and tangible personal property in this state
on the date of the close of the calendar or fiscal
year of such company in the income year is to the
book value of its entire real estate and tangible
personal property then owned by it, with, no de-
duction on account of encumbrances thereon.
(b) The ratio of the total sales made through
or by offices, agencies, or branches located in
North Carolina during the income year to the
total sales made everywhere during said income
year.
(c) The word "sales" as used in this section
shall be defined as sale or rental of real estate and
sale or rental of tangible properties.
(d) The term "book value" as used herein shall
be defined to mean original cost plus additions
and improvements less reserve for depreciation on
the date of the close of the calendar or fiscal year
of such company, unless in the opinion of the com-
missioner of revenue the peculiar circumstances in
any case justify a different basis.
(e) The words "tangible personal property"
shall be taken to mean corporeal personal prop-
erty such as machinery, tools, implements, goods,
wares and merchandise, and shall not be taken
to mean cash on hand or in bank, shares of stock,
bonds, notes, accounts receivable, credits, special
privileges, franchises, good will, or evidence of an
interest in property and evidences of debt.
(C) If a company deriving profits principally
from sources other than holding or sale of tangi-
ble property, such proportion as its gross receipts
in this state during the income year is to its gross
receipts for such year within and without the
state.
The words "gross receipts" as used in this sec-
tion shall be taken to mean and include the entire
receipts for business done by such company.
The proportion of the total capital stock, sur-
plus and undivided profits of each such foreign
corporation so allocated shall be deemed to be the
proportion of the total capital stock, surplus and
undivided profits of each such foreign corporation
used in connection with its business in this state
and liable for annual franchise tax under this
section.
(4) After determining the total amount of its
capital stock, surplus and undivided profits, if a
domestic corporation, or the proportion of its total
capital stock, surplus and undivided profits as set
out in sub-section three of this section, if a foreign
corporation, which amount so determined shall in
no case be less than the total assessed value of all
the real and personal property in this state of each
such corporation nor less than its total actual in-
vestment in tangible property in this state, every
corporation taxed under this section shall annually
pay to the commissioner of revenue, at the time
the report and statement is due, a franchise or
privilege tax, which is hereby levied, at the rate
of one dollar and seventy-five cents ($1.75) for
each one thousand dollars ($1,000.00) of the total
amount of capital stock, surplus and undivided
profits as herein provided. The tax imposed in
this section shall in no case be less than ten dollars
($10.00) and shall be for the privilege of carrying
on, doing business, and/or the continuance of
articles of incorporation or domestication of each
such corporation in this state: Provided, that the
7]
§ 7880(119)b
TAXATION
§ 7880(123)
basis for the franchise tax on all corporations,
eighty per cent (80%) of whose outstanding cap-
ital stock is owned by persons or corporations to
whom or to which such stock was issued prior to
January first, one thousand nine hundred thirty-
five, in 'part payment or settlement of their re-
spective deposits in any closed bank of the state
of North Carolina, shall be the total assessed
value of the real and tangible personal property of
such corporation in this state for the year in which
report and statement is due under the provisions
of this section.
(5) The report, statement and tax required by
this section shall be in addition to all other re-
ports required or taxes levied and assessed in this
state.
Counties, cities and towns shall not levy a fran-
chise tax on the corporations taxed under this sec-
tion. (1937, c. 127, s. 210.)
Under P. I,. 1931, ch. 427, § 210, which was superseded
by this section, it was held that the amount of a franchise
tax for which a corporation is liable for the years during
which its business is continued by its receiver under orders
of court is properly paid by the receiver out of assets of
the corporation in his hands as an expense of the receiver-
ship. Stagg v. Nissen Co., 208 N. C. 285, 180 S. E. 658.
By the express terms of P. E. 1931, ch. 427, § 210, which
was superseded by this section, the corporation was liable
for the annual franchise tax for each year during which
it enjoyed the privilege of the continuance of its charter.
It was immaterial whether or not the corporation exercised
its privilege of doing or carrying on the business author-
ized by its charter or certificate of incorporation; it was
liable so long as it enjoyed the privilege granted by the
state of "being" a corporation. Id.
§ 7880(1 19) b. New corporations, — (a) No cor-
poration, domestic or foreign, shall be permitted
to do business in this state without paying the
franchise tax levied in this article or schedule.
When such domestic corporation is incorporated
under laws of this state or such foreign corpora-
tion is domesticated in this state, and has not here-
tofore done business in the state, upon which a
report might be filed under section 7880(118-119)
notice in writing thereof shall be given to the
commissioner of revenue by such corporation, and
it shall be competent for the commissioner of rev-
enue and he is hereby authorized to obtain such
information concerning the basis for the levy of
the tax from such other information he can ob-
tain, and to that end may require of such corpo-
ration to furnish him such a report as may clearly
reflect and disclose the amount of its issued and
outstanding capital stock, surplus and undivided
profits as set out in section 7880(118-119), and in-
formation as to such other factors as may be nec-
essary to determine the basis of the tax. When
this has been determined, in accordance with the
provisions of section 7880(118-119) as far as the
same may be applicable, and upon the informa-
tion which he has secured, the commissioner of
revenue shall thereupon determine the amount of
franchise tax to be paid by such new corporation,
and said tax shall be due and payable within thirty
days from date of notice thereof from the com-
missioner of revenue, which tax, in no event, shall
be less than a ratable proportion of the tax for
the franchise privilege extended for one year on
the determined basis, nor less than the minimum
tax of ten dollars ($10.00) ; the tax levied in this
section shall be for the period from date of in-
corporation or domestication to June thirtieth
next following.
[2'
(b) Any corporation failing to notify the com-
missioner of revenue as provided for in sub-section
(a) of this section within sixty days after date of
the incorporation or domestication of such cor-
poration in this state shall be subject to all penal-
ties and remedies imposed for failure to file any
report required under this article or schedule.
(c) The provisions of this section shall apply
only to corporations newly incorporated or newly
domesticated in this state. (1937, c. 127, s. 211.)
§) 7880(121). Corporations not mentioned. —
None of the provisions in sections 7880(118-119)
and 7880(119)b shall apply to fraternal, benevo-
lent, or educational corporations not operating for
a profit; nor to banking and insurance companies:
Provided, that each such corporation must, upon
request by the commissioner of revenue, establish
in writing its claim for exemption from said pro-
visions. The provisions of section 7880(118-119)
and 7880(119)b shall apply to electric light, power,
street railway, gas, water, Pullman, sleeping and
dining car, express, telegraph, telephone, motor
bus, and truck corporations to the extent and only
to the extent that the franchise tax levied in sec-
tions 7880(118-119) and 7880(119)b exceed the
franchise taxes levied in other sections of this
article or schedule. The exemptions in this sec-
tion shall apply only to those corporations spe-
cifically mentioned, and no other. (1937, c. 127,
s. 213.)
§ 7880(122). Penalty for nonpayment or failure
to file report. — (a) Any person, firm, or corpora-
tion, domestic or foreign, failing to pay the license,
privilege, or franchise tax levied and assessed un-
der this article or schedule when due and payable
shall, in addition to all other penalties prescribed
in this act, pay an additional tax of ten per cent
(10%) and interest at the rate of six per cent
(6%) per annum on the total amount of tax due
and additional tax incurred, which said additional
tax shall not be less than two dollars ($2.00) in
any case, and shall be added to the tax, together
with the interest accrued, and shall become an in-
tegral part of the tax.
(b) Any person, firm, or corporation failing to
file the report required in this article or schedule
on or before the date specified shall pay a penalty
of ten per cent (10%) of the tax found to be due,
which penalty shall in no case be less than five
dollars ($5.00). (1937, c. 127, s. 214.)
§ 7880(123). When franchise or privilege taxes
payable. — (a) Every corporation, domestic or for-
eign, from which a report is required by law to
be made to the commissioner of revenue shall,
unless otherwise provided, pay to said commis-
sioner annually the franchise tax as required by
sections 7880(118-119) and 7880(119)b.
(b) It shall be the duty of the commissioner of
revenue to mail to the registered address, last
listed with the commissioner of revenue, of every
such corporation, report forms to be used in com-
plying with the provisions of this article or sched-
ule, which forms shall contain a copy of so much
of this and other sections of this act as relates to
penalties for failure to pay said taxes.
(c) It shall be the duty of the treasurer or other
officer having charge of any such corporation, do-
mestic or foreign, upon which a tax is herein im-
§ 7880(123)a
TAXATION
§ 7880(126)
posed, to transmit the amount of the tax due to
the commissioner of revenue within the time pro-
vided by law for payment of same.
(d) Individual stockholders in any corporation,
joint stock association, limited partnership, or
company paying a tax on its entire capital stock
shall not be required to list or pay ad valorem tax
on the shares of stock owned by them.
(e) Corporations in the state legally holding
shares of stock in other corporations, upon which
the tax has been paid to the state by the corpora-
tion issuing the same, shall not be required to list
or pay an ad valorem tax on said shares of stock.
(1937, c. 127, s. 215.)
§ 7880 (123) a. Review of returns— additional
taxes. — Upon receipt of any report, statement and
tax as provided by this article or schedule, the
commissioner of revenue shall cause same to be
reviewed and examined for the purpose of ascer-
taining if same constitute a true and correct return
as required by this article or schedule. If the
commissioner of revenue discovers from the
examination of any return, or otherwise, that the
franchise or privilege tax of any taxpayer has not
been correctly determined, computed and/or paid,
he may at any time within three years after the
time when the return was due, give notice in writ-
ing, to the taxpayer of such deficiency plus inter-
est at the rate of six per cent (6%) per annum
from date when return was due, and any over-pay-
ment of the tax shall be returned to the taxpayer
within thirty days after it is ascertained. In the
case of any taxpayer who has failed to file any re-
turn or statement required under this article or
schedule, the commissioner of revenue shall, from
facts within his knowledge, prepare a tentative
return for such delinquent taxpayer, and shall as-
sess the taxes, penalties and interest upon these
findings; this provision shall not be construed to
relieve said taxpayer from liability for a return or
from any penalties and remedies imposed for fail-
ure to file proper return. Any taxpayer feeling
aggrieved by such proposed assessment shall be
entitled to a hearing before the commissioner of
revenue, if within thirty days after date of notice
of such proposed assessment, the taxpayer shall
apply in writing for such hearing, explaining in
detail his objections to same. If no request for
such hearing is made such proposed assessment
shall be final and conclusive. If the request for
hearing is made, the taxpayer shall be heard by
the commissioner of revenue, and after such hear-
ing the commissioner of revenue shall render his
decision. The taxpayer shall be advised of his
decision by mail, and such amount shall be due
and payable within ten days after date of notice
thereof. (1937, c. 127, s. 212.)
§ 7880(123)b. Power of attorney.— The com-
missioner of revenue shall have the authority to
require a proper power of attorney of each and
every agent for any taxpayer under this act.
(1937, c. 127, s. 217.)
§ 7880(123)c. Extension of time for filing re-
turns; fraudulent return made misdemeanor. — (a)
The return required by this article or schedule
shall be due on or before the dates specified un-
less written application for extension of time in
which to file, containing reasons therefor, is made
[2
to the commissioner of revenue on or before due
date of such return. The commissioner of revenue
for good cause may extend the time for filing any
return under this article or schedule, provided in-
terest at the rate of six per cent (6%) per annum
from date return is due is paid upon the total
amount of tax due.
(b) The provisions of this act with respect to
revision and appeal shall apply to the tax so as-
sessed. The limitation of three years to the as-
sessment of such tax or additional tax shall not
apply to the assessment of additional taxes upon
fraudulent return. Any officer or agent of a cor-
poration who shall knowingly make a fraudulent
return under this article or schedule shall be
guilty of a misdemeanor and shall be fined not
less than one hundred dollars ($100.00) nor more
than one thousand dollars ($1,000.00) and/or im-
prisoned at the discretion of the court. (1937, c.
127, s. 216.)
Art. 4. Schedule D. Income Tax
§ 7880(124). Short title.— This article shall be
known and may be cited as the income tax article
of one thousand nine hundred and thirty-seven.
(1937, c. 127, s. 300.)
§ 7880(125). Purpose. — The general purpose of
this article is to impose a tax for the use of the
state government, upon the net income for the
calendar years one thousand nine hundred and
thirty-seven and thirty-eight in excess of exemp-
tions herein set out, collectible in the years one
thousand nine hundred thirty-eight and thirty-nine.
(a) Of every resident of the state.
(b) Of every domestic corporation.
(c) Of every foreign corporation and of every
non-resident individual having a business or
agency in this state or income from property
owned, and from every business, trade, profession,
or occupation carried on in this state.
(d) The tax imposed upon the net income of
corporations in this article is in addition to the tax
imposed under Schedule C [§ 7880(109) et seq.]
of this act. (1937, c. 127, s. 301.)
§ 7880(126). Definitions. — For the purpose of
this article, and unless otherwise required by the
context:
1. The word "taxpayer" includes any individual,
corporation, or fiduciary subject to the tax im-
posed by this article.
2. The word "individual" means a natural per-
son.
3. A "head of a household" is an individual who
actually maintains and supports in one household
one or more individuals who are closely related by
blood relationship, relationship by marriage, or
by adoption, and whose right to exercise family
control and provide for these dependent indi-
viduals is based on some moral or legal obligation.
4. The word "fiduciary" means a guardian,
trustee, executor, administrator, receiver, conser-
vator, or any person, whether individual or corpo-
ration, acting in any fiduciary capacity for any
person, estate, or trust.
5. The word "person" includes individuals, fidu-
ciaries, partnerships.
6. The word "corporation" includes joint stock
companies or associations and insurance com-
panies.
79]
§ 7880(127)
TAXATION
§ 7880(128)
7. The words "domestic corporation" mean any
corporation organized under the laws of this state.
8. The words "foreign corporation" mean any
•corporation other than a domestic corporation.
9. The words "tax year" mean the calendar
year in which the tax is payable.
10. The words "income year" mean the calendar
year or the fiscal year upon the basis of which the
net income is computed under this article; if no
fiscal year has been established, they mean the
calendar year.
11. The words "fiscal year" mean an income
year, ending on the last day of any month other
than December.
12. The word "paid," for the purposes of the
deductions under this article, means "paid or ac-
crued" and the words "paid or accrued" shall be
construed according to the method of accounting
upon the basis of which the net income is com-
puted under this article. The word "received,"
for the purpose of the computation of the net in-
come under this article, means "received or ac-
crued," and the words "received or accrued" shall
be construed according to the method of account-
ing upon the basis of which the net income is
computed under this article.
13. The word "resident" applies only to indi-
viduals, and includes, for the purpose of determin-
ing liability to the tax imposed by this article, with
reference to the income of any income year, any
individual who shall be a resident of the state on
the first day of the tax year and shall include all
income earned while a resident of this state.
14. The words "foreign country" mean any ju-
risdiction other than the one embraced within the
United States. The words "United States," when
used in a geographical sense, includes the states,
and territories of Alaska and Hawaii, the District
of Columbia, and the possessions of the United
States. (1937, c. 127, s. 302.)
Imposition of Tax
§ 7880(127). Individuals. — A tax is hereby im-
posed upon every resident of the state, which tax
shall be levied, collected and paid annually, with
respect to the net income of the taxpayer as here-
in defined, and upon income earned within the
state of every non-resident having a business or
agency in this state or income from property
owned and from every business, trade, profession
or occupation carried on in this state, computed at
the following rates, after deducting the exemp-
tions provided in this article.
On the excess over the amount legally ex-
empted, up to two thousand dollars, three per
cent (3%).
On the excess above two thousand dollars, and
up to four thousand dollars, four per cent (4%).
On the excess above four thousand dollars, and
up to six thousand dollars, five per cent (5%).
On the excess over six thousand dollars, and
up to ten thousand dollars, six per cent (6%).
On the excess over ten thousand dollars, seven
per cent (7%). (1937, c. 127, s. 310.)
§ 7880(128). Corporations.
I. Domestic Corporations. — Every corporation
organized under the laws of this state shall pay
annually an income tax equivalent to six per cent
on the entire net income, as herein defined, re-
ceived by such corporation during the income year.
II. Foreign Corporations. — Every foreign cor-
poration doing business in this state shall pay
annually an income tax equivalent to six per cent
of a proportion of its entire net income, to be de-
termined according to the following rules:
1. If the principal business of a company in
this state is manufacturing, or if it is any form of
collecting, buying, assembling, or processing goods
and materials within this state, the entire net in-
come of such corporation shall be apportioned by
North Carolina on the basis of the ratio obtained
by taking the arithmetical average of the following
two ratios:
(a) The ratio of the book value of its real estate
and tangible personal property in this state on
the date of the close of the calendar or the fiscal
year of such corporation in the income year is to
the book value of its entire real estate and tangi-
ble personal property then owned by it, with no
deductions on account of encumbrances thereon.
(b) The ratio of the total cost of manufactur-
ing, collecting, buying, assembling, or processing
within this state during the income year to the
total cost of manufacturing, collecting, buying,
assembling, or processing within and without the
state. The term "cost of manufacturing, collect-
ing, buying, assembling, or processing within and
without this state," as used herein, shall be in-
terpreted in a manner to conform as nearly as
may be to the best accounting practice in the
trade or business. Unless in the opinion of the
commissioner of revenue the peculiar circum-
stances in any case justify a different basis, this
term shall be generally interpreted to include as
elements of cost within and without this state the
following:
(c) The total cost of all goods, materials, and
supplies used in manufacturing, assembling, or
processing, regardless of where purchased.
(d) The total wages and salaries paid or accrued
during the income year in such manufacturing,,
assembling, or processing activities.
(e) The total overhead or manufacturing bur-
den properly assignable according to good ac-
counting practice to such manufacturing, assem-
bling or processing activities.
(f) The term "book value" as used herein shall
be defined to mean original cost plus additions and
improvements less reserve for depreciation on the
date of the close of the calendar or fiscal year of
such company, unless in the opinion of the com-
missioner of revenue the peculiar circumstances,
in any case justify a different basis.
(g) The words "tangible personal property"
shall be taken to mean corporeal personal property
such as machinery, tools, implements, goods, wares
and merchandise, and shall not be taken to mean
cash on hand or in bank, shares of stock, bonds,
notes, accounts receivable, credits, special privi-
leges, franchises, good will, or evidence of an in-
terest in property and evidences of debt.
(h) The word "manufacturing" shall be defined
as mining and all processes of fabricating or of
curing raw materials.
2. If the principal business of a company in this
state is selling, distributing or dealing in tangible
personal property within this state, the entire net
income of such company shall be apportioned to
North Carolina on the basis of the ratio obtained
[ 280
§ 7880(129)
TAXATION
§ 7880(130)
by taking the arithmetical average of the follow-
ing two ratios :
(a) The ratio of the book value of its real es-
tate and tangible personal property in this state
on the date of the close of the calendar or fiscal
year of such company in the income year is to
the book value of its entire real estate and tangible
personal property then owned by it, with no de-
duction on account of encumbrances thereon.
(b) The ratio of the total sales made through
or by offices, agencies, or branches located in
North Carolina during the income year to the
total sales made everywhere during said income
year.
(c) The wTord "sales" as used in -this section
shall be defined as sale or rental of real estate and
sale or rental of tangible properties.
(d) The term "book value" as used herein shall
be defined to mean original cost plus additions and
improvements less reserve for depreciation on the
date of the close of the calendar or fiscal year of
such company, unless in the opinion of the com-
missioner of revenue the peculiar circumstances in
any case justify a different basis.
(e) The words "tangible personal property"
shall be taken to mean corporeal personal prop-
erty such as machinery, tools, implements, goods,
wares and merchandise, and shall not be taken to
mean cash on hand or in bank, shares of stock,
bonds, notes, accounts receivable, credits, special
privileges, franchises, good will, or evidence of
an interest in property and evidences of debt.
(f) Foreign insurance companies doing business
in this state and returning premium receipts to
the insurance commissioner, and paying the tax
upon such premium receipts as provided in section
7880(116) shall be exempt from this tax on in-
come in so far as the income is derived from their
insurance business. However, in case of a for-
eign insurance company owning real estate in this
state from which rents are received it is required
to file an income tax return reporting income re-
ceived from such real estate in this state and take
credit for actual expenses incurred in connection
therewith.
3. If a company deriving profits principally
from sources other than holding or sale of tangible
property, such proportion as its gross receipts in
this state during the income year is to its gross
receipts for such year within and without the state.
The words "gross receipts" as used in this sec-
tion shall be taken to mean and include the entire
receipts for business done by such company.
(1937, c. 127, s. 311.)
§ 7880(129). Income from stock in foreign cor-
porations.— Income from stock in foreign corpo-
rations, in cash dividends, received by individuals,
fiduciaries, partnership (to be reported by part-
ners on their individual returns) or corporations,
resident in this state, or by non-resident fiduciary
if held for a resident of this state, shall be reported
and taxed as other income taxable under this
article. Every individual, fiduciary, partnership,
or corporation owning such shares of stock, and
receiving dividends from same, shall report such
income to the commissioner of revenue, at the
time required by this article for reporting other
income, and shall pay the tax herein imposed at
the same time and in the same way as tax upon
other income is payable. With respect to cor-
porations paying a tax in this state on a propor-
tionate part of their total income, the holder of
shares of stock in such corporation shall pay on
the total dividends received an amount equaling
the percentage of the corporation's income on
which it has not paid an income tax to the state
of North Carolina for the year in which said divi-
dends are received by the taxpayer. (1937, c. 127,
s. 311^.)
§ 7880(130). Railroads and public-service cor-
porations.— The basis of ascertaining the net in-
come of every corporation engaged in the busi-
ness of operating a steam, electric railroad, ex-
press service, telephone or telegraph business, or
other form of public service, when such company
is required by the interstate commerce commis-
sion to keep records according to its standard
classification of accounting, shall be the "net rev-
enue from operations" of such corporation as
shown by their records, kept in accordance with
that standard classification of accounts when their
business is wholly within this state, and when
their business is in part within and in part with-
out the state, their net income within this state
shall be ascertained by taking their gross "op-
erating revenues" within this state, including in
their gross "operating revenues" within this state
the equal mileage proportion within this state of
their interstate business, and deducting from their
gross "operating revenue" the proportionate av-
erage of "operating expense" or "operating ratio"
for their whole business, as shown by the inter-
state commerce commission standard classification
of accounts:
Provided, that if the standard classification of
operating expenses prescribed by the interstate
commerce commission for railroads differs from
the standard classification of operating expenses
prescribed by the interstate commerce commission
for other public-service corporations, such other
public-service corporations shall be entitled to the
same operating expenses as prescribed for rail-
roads. From the net operating income thus as-
certained shall be deducted "uncollectible reve-
nue" and taxes paid in this state for the income
year other than income taxes, and the balance
shall be deemed to be their net income taxable
under this article. That in determining the tax-
able income of a corporation engaged in the busi-
ness of operating a railroad under this section, in
the case of a railroad located entirely within this
state, the net operating income shall be increased
or decreased to the extent of any credit or debit
balance received or paid, as the case may be, on
account of car or locomotive hire; and when any
railroad is located partly within and partly with-
out this state, the said net operating income shall
be increased or decreased to the extent of an
equal mileage proportion within this state of any
credit or debit balance received or paid, as the
case may be, on account of car or locomotive hire.
For the purposes of this section the words "in-
terstate business" shall mean, as to transportation
companies, operating revenue earned within the
state by reason of the interstate transportation of
persons or property into, out of, or through this
state, and as to transmission companies the inter-
state transmission of messages into, out of, or
through the state.
281
§ 7880(131)
TAXATION
§ 7880(134)
The words "equal mileage proportion within
the state" shall mean the proportion of revenue
received by the company operating in this state
from interstate business as defined in the preced-
ing paragraph, which the distance of movement
over lines in this state bears to the total distance
of movement over lines of the company receiving
such revenue. Tf the commissioner of revenue
shall find, with respect to any particular company,
that its accounting records are not kept so as to
reflect with exact accuracy such division of rev-
enue by state lines as to each transaction involv-
ing interstate revenue, the commissioner of rev-
enue may adopt such regulations, based upon
averages, as will approximate with reasonable ac-
curacy the proportion of interstate revenue actu-
ally earned upon lines in this state.
The words "proportionate average of 'operating
expenses' or 'operating ratio' " shall mean the
proportion of gross revenue of a company, on its
whole business absorbed in operating expenses, as
defined in the interstate commerce commission
classification of accounts.
In determining the taxable income of a railroad
company operating two or more lines of railroad
not physically connected, and when one of such'
railroad lines is located wholly within this state,
the actual earnings and expenses oi such line in
this state, in so far as they may be severable, shall
be used in determining net income taxable in this
state.
All other public-service corporations shall file
under section 7880(128). (1937, c. 127, s. 312.)
Commissioner of Revenue Must Follow Formula Pro-
vided by Section. — In assessing income taxes against a cor-
poration the Commissioner of Revenue must follow this
section, leaving the question of whether the result is arbi-
trary or unwarranted to the determination of the courts
upon appeal of the corporation. Maxwell v. Norfolk, etc.,
Ry. Co., 208 N. C. 397, 181 S. E. 248.
For ascertaining the net income of an interstate railway
taxable within this state the formula provided by this sec-
tion is not void upon its face, but may be unworkable or
unfair when applied to a particular railway in particular
conditions. Norfolk, etc., Ry. Co. v. North Carolina, 297
U. S. 682, 56 S. Ct. 625, 80 I* Ed. 977.
And Burden of Proving1 Use of Formula Wrong Is on
Claimant. — The burden of proving that the use of the for-
mula provided by this section arbitrarily attributes net in-
come to the part of its line within this state derived from
its business outside of the state is upon the railway claim-
ant. Norfolk, etc., Ry. Co. v. North Carolina, 297 U. S.
682, 56 S. Ct. 625, 80 E- Ed. 977. See also, Maxwell v. Nor-
folk, etc., Ry. Co., 208 N. C. 397, 181 S. E- 248.
§ 7880(131). Taxable year. — The tax imposed
by this article shall be levied, collected, and paid
in the year one thousand nine hundred and thirty-
eight and thirty-nine, and with respect to the net
income received during the calendar year of one
thousand nine hundred and thirty-seven and
thirty-eight. (1937, c. 127, s. 313.)
§ 7880(132). Conditional and other exemptions.
— The following organizations shall be exempt
from taxation under this article:
1. Fraternal beneficiary societies, orders or as-
sociations.
(a) Operating under the lodge system or for
the exclusive benefit of the members of a frater-
nity itself operating under the lodge system, and
(b) Providing for the payment of life, sick, ac-
cident, or other benefits to the members of such
society, order or association, or their dependents.
2. Building and loan associations and co-opera-
tive banks without capital stock, organized and
operated for mutual purposes and without profit.
3. Cemetery corporations and corporations or-
ganized for religious, charitable, scientific, or ed-
ucational purposes, or for the prevention of cru-
elty to children or animals, no part of the net
earnings of which inures to the benefit of any pri-
vate stockholder or individual.
4. Business leagues, chambers of commerce, or
boards of trade not organized for profit, and no
part of the net earnings of which inures to the
benefit of any private stockholder, or individual.
5. Civic leagues or organizations not organized
for profit, but operated exclusively for the pro-
motion of social welfare.
6. Clubs organized and operated exclusively for
pleasure, recreation, and other non-profitable pur-
poses, no part of the net earnings of which inures
to the benefit of any private stockholder or mem-
ber.
7. Farmers' or other mutual hail, cyclone, or
fire insurance companies, mutual ditch or irriga-
tion companies, mutual or co-operative telephone
companies, or like organizations of a purely local
character the income of which consists solely of
assessments, dues and fees collected from mem-
bers for the sole purpose of meeting expenses.
8. Farmers', fruit growers', or like organizations
organized and operated as sales agents for the
purpose of marketing the products of members
and turning back to them the proceeds of sales,
less the necessary selling expenses, on the basis
of the quantity of product furnished by them.
9. Mutual associations formed under Consoli-
dated Statutes five thousand two hundred fifty-
five et seq., formed to conduct agricultural busi-
ness on the mutual plan; or to marketing associa-
tions organized under section five thousand two
hundred fifty-nine (a) and following. (1937, c.
127, s. 314.)
§ 7880(133). Fiduciaries. — The tax imposed by
this article shall be imposed upon resident fiducia-
ries having in charge funds or property for the
benefit of a resident of this state, and/or income
earned in this state for the benefit of a non-resi-
dent, and upon a non-resident fiduciary having in
charge funds or property for the benefit of a resi-
dent of this state, which tax shall be levied, col-
lected and paid annually with respect to:
(a) That part of 'the net income of estates or
trusts which has not become distributable during
the income year.
(b) The net income received during the income
year by deceased individuals who, at the time of
death, were residents and who have died during
the tax year or the income year without having
made a return.
(c) The entire net income of resident, insol-
vent, or incompetent individuals, whether or not
any portion thereof is held for the future use of
the beneficiaries, where the fiduciary has complete
charge of such net income.
(d) The tax imposed upon a fiduciary by this
.article shall be a charge against the estate or
trust. (1937, c. 127, s. 315.)
§ 7880(134). Net income defined.— The words
"net income" mean the gross income of a tax-
payer, less the deductions allowed by this article.
(1937, c. 127, s. 316.)
282 ]
§ 7880(135)
TAXATION
§ 7880(136)a
§ 7880(135). Gross income defined, — 1. The
words "gross income" mean the income of a tax-
payer derived from salaries, wages, or compensa-
tion for personal service, of whatever kind and in
whatever form paid, or from professions, voca-
tions, trades, business, commerce or sales, or deal-
ings in property, whether real or personal, grow-
ing out of the ownership or use of or interest in
such property, also from interest, rent, dividends,
securities, or the transactions of any business car-
ried on for gain or profit, or gains or profits, and
income derived from any source whatever and in
whatever form paid. The amount of all such
items shall be included in the gross income of the
income year in which received by the taxpayer,
unless, under the methods of accounting permit-
ted under this article, any such amounts are to be
properly accounted for as of a different period.
The term "gross income" as used in this article
shall include the salaries of all constitutional state
officials taking office after the date of the enact-
ment of this article by election, re-election or ap-
pointment, and all acts fixing the compensation
of such constitutional state officials are hereby
amended accordingly.
The term "gross income" as used in this article
shall include income from annuities based on three
per cent (3%) of the annuity or contract as in-
come yearly.
2. The words "gross income" do not include the
following items, which shall be exempt from tax-
ation under this article, but shall be reported in
such form and manner as may be prescribed by
the commissioner of revenue:
(a) The proceeds of life insurance policies and
contracts paid upon the death of the insured to
beneficiaries or to the estate of the insured.
Ob) The amount received by the insured as a
return of premium or premiums paid by him un-
der life insurance endowment or annuity con-
tracts, either during the term or at the maturity
of the term mentioned in the contracts or upon
surrender of the contract.
(c) The value of property acquired by gift, be-
quest, devise or descent (but the income from
such property shall be included in gross income).
(d) Interest upon the obligation of the United
States or its possessions, or of the state of North
Carolina, or of a political sub-division thereof.
(e) Salaries, wages, or other compensation re-
ceived from the United States by officials or em-
ployees thereof, including persons in the military
or naval forces of the United States.
(f) Any amounts received through accident or
health insurance or under the Workmen's Com-
pensation Act, as compensation for personal in-
juries or sickness, plus the amount of any dam-
ages received, whether by suit or agreement, on
account of such injuries or sickness.
(g) In case of domestic insurance companies or
associations paying a tax on their gross premium
receipts, in addition to the above, (a) the net ad-
dition required :by law to be made within the tax-
able year to reserve funds, including the actual
deposit of sums with the commissioner of insur-
ance or the treasurer of the state, pursuant to the
law, as additions to guarantee or reserve funds for
the benefit of policyholders, and (b) the sums
paid within the taxable year on policy and annuity
contracts to policyholders in excess of the reserve
set up during the taxable year. (1937, c. 127, s.
317.)
§ 7880(136). Basis of return of net income. —
1. The net income of a taxpayer shall be com-
puted in accordance with the method of account-
ing regularly employed in keeping the books of
such taxpayer, but such method of accounting
must be consistent with respect to both income
and deductions, but if in any case such method
does not clearly reflect the income, the computa-
tion shall be made in accordance with such
method as in the opinion of the commissioner
does clearly reflect the income, but shall follow
as nearly as practicable the federal practice, un-
less contrary to the context and intent of this ar-
ticle.
2. A taxpayer may, with the approval of the
commissioner of revenue, and under such regula-
tions as he may prescribe, change the income year
from fiscal year to calendar year or otherwise, in
which case his net income shall be computed up-
on the basis of such new income year: Provided,
that such approval must be obtained from the
commissioner at least thirty days prior to the end
of such income year.
3. An individual carrying on business in part-
nership shall be liable for income tax only in his
individual capacity, and shall include in his gross
income, whether distributed or not, his distribu-
tive share of the net income of the partnership
and dividends from foreign corporations for each
income year.
4. Every individual taxable under this article
who is a beneficiary of an estate or trust shall in-
clude in his gross income the distributive share of
the net income of the estate or trust received by
him or distributable to him during the income
year. Unless otherwise provided in the law, the
will, the deed, or other instrument creating the
estate, trust, or fiduciary relation, the net income
shall be deemed to be distributed or distributable
to the beneficiaries (including the fiduciary as a
beneficiary, in the case of income accumulated for
future distribution), ratable in proportion to their
respective interest. (1937, c. 127, s. 318.)
§ 7880(136)a. Subsidiary corporations. — The
net income of a corporation which is a subsidiary
of another corporation or closely affiliated there-
with by stock ownership shall be determined by
eliminating all payments to the parent corpora-
tion or affiliated corporations in excess of fair
value and by including fair compensation to such
foreign corporation for all commodities sold to or
service performed for the parent corporation or
affiliated corporations. For the purpose of deter-
mining such net income the commissioner may,
in the absence of satisfactory evidence to the con-
trary, presume that an apportionment by reason-
able rules of the consolidated net income of
corporations participating in the filing of a consoli-
dated return of net income to the federal govern-
ment fairly reflects the net income taxable under
this chapter, or may otherwise equitably deter-
mine such net income by reasonable rules of ap-
portionment of the combined income of the sub-
sidiary, its parent and affiliates or any thereof.
If the capital of a corporation which is a sub-
sidiary of another corporation or closely affiliated
therewith by stock ownership is inadequate for its
[ 283 ]
§ 7880(137)
TAXATION
§ 7880(140)
business needs apart from credit extended or in-
debtedness guaranteed by the parent or affiliated
corporation, the commissioner shall, in determin-
ing the net income of such corporation, disregard
its indebtedness owed to or guaranteed by the
parent or an affiliated corporation in determining
the net income taxable under this article.
Such subsidiary or affiliated corporation shall
incorporate in its return required under this arti-
cle such information as the commissioner may
reasonably require for the determination of the
net income taxable under this article, and failure
to so incorporate such information or to furnish
such additional information when required within
thirty days shall subject the corporation and its
officers to the penalties provided in section 7880-
(154) for failure to file such return. (1937, c. 127,
s. 318^.)
§ 7880(137). Determination of gain or loss. —
For the purpose of ascertaining the gain or loss
from the sale or other disposition of property,
real, personal, or mixed, the basis shall be, in the
case of property acquired before January first, one
thousand nine hundred and twenty-one, the fair
market price or the value of such property as of
that date the cost of such property acquired prior
to January first, one thousand nine hundred and
twenty-one, would he used in all cases if such
cost is known or determinable, and in all other
cases the cost thereof: Provided, that in the case
of property which was included in the last pre-
ceding annual inventory used in determining net
income in a return under this article, such inven-
tory value shall be taken in lieu of costs or
market value. The final distribution to the tax-
payer of the assets of a corporation shall be
treated as a sale of the stock or securities of the
corporation owned by him, and the gain or loss
shall be computed accordingly: Provided, no gain
or loss shall be recognized upon the receipt by a
corporation of property distributed in complete
liquidation of another corporation, if the corpora-
tion receiving such property was on the date of
the adoption of the plan of liquidation and has
continued to be at all times until the receipt of the
property the owner of stock (in such other cor-
poration), possessing at least eighty per centum
(80%) of the total combined voting power of all
classes of stock entitled to vote, and the owner of
at least eighty per centum (80%) of the total
number of shares of all other classes of stock (ex-
cept non-voting stock which is limited and pre-
ferred as to dividends.) (1937, c. 127, s. 319.)
§ 7880(138). Exchanges of property. — l. When
property is exchanged for other property of like
kind, the property received in exchange shall be
considered as a conversion of assets from one
form to another, from which no gain or loss shall
be deemed to arise.
2. In the case of the organization of a corpora-
tion, the stock or securities received shall be con-
sidered to take the place of property transferred
therefor, and no gain or loss shall be deemed to
arise therefrom.
3. When, in connection with the reorganization,
merger or consolidation of a corporation, a tax-
payer receives in place of stock or securities
owned by him, new stock or securities, the basis
of computing the gain or loss, if any, shall be, in
case the stock or securities owned were acquired
before January first, one thousand nine hundred
and twenty-one, the fair market price or value
thereof as of that date, and in all other cases the
cost thereof.
4. The basis of property received by a corpora-
tion upon a distribution in complete liquidation of
another corporation within the meaning of section
7880(137) shall be the same as it would be in the
hands of the transferor. (1937, c. 127, s. 320.)
§ 7880(139). Inventory. — Whenever, in the
opinion of the commissioner of revenue, it is nec-
essary, in order clearly to determine the income
of any taxpayer, inventories shall be taken by
such taxpayer upon such basis as the commis-
sioner of revenue may prescribe, conforming as.
nearly as may be to the best accounting practice
in the trade or business and most clearly reflect-
ing the income. (1937, c. 127, s. 321.)
§ 7880(140). Deductions. — In computing net
income there shall be allowed as deductions the
following items:
1. All the ordinary and necessary expenses paid
during the income year in carrying on any trade
or business, including:
(a) As to individuals, reasonable wages of em-
ployees for services rendered in producing such
income.
(b) As to partnerships, reasonable wages of
employees and a reasonable allowance for co-
partners or members of a firm, for services actu-
ally rendered in producing such income, the
amount of such salary allowance to be included
in the personal return of the co-partner receiving
same.
(c) As to corporations, wages of employees and
salaries of officers, if reasonable in amount, for
services actually rendered in producing such in-
come.
2. Rentals or other payments required to be
made as a condition of the continued use or pos-
session for the purpose of the trade of property
to which the taxpayer has not taken or is not tak-
ing title, or in which he has no equity.
3. Unearned discount and all interest paid dur-
ing the income year on indebtedness except in-
terest paid or accrued in connection with the own-
ership of real or personal property the current in-
come from which is not taxable under this article.
Interest on indebtedness incurred for the purchase
of stock of corporations paying a tax on their en-
tire net income under this article shall be deducti-
ble, and a ratable proportion of such interest with
respect to corporations paying a tax on a propor-
tion of their net income.
4. Taxes paid or accrued during the income
year, except income taxes, gift taxes, taxes levied
under section 7880(129), inheritance and estate
taxes, and taxes assessed for local benefit of a
kind tending to increase the value of the property
assessed. No deduction shall be allowed under
this section for gasoline tax, sales tax, automobile
license or registration fee by individuals not en-
gaged in trade or business, nor shall deduction be
allowed for taxes paid or accrued in connection
with the ownership of property the current in-
come from which is not taxable under this article.
All payments made by an employer into a federal
fund as provided by the provisions of Title VIII
[ 284 ]
§ 7880(141)
TAXATION
§ 7880(142)
and Title IX of the Federal Social Security Act,
and all payments made by an employer as pro-
vided by a state unemployment compensation
law: Provided, that none of the foregoing provi-
sions shall apply to that part of such payments
required to be deducted by an employer from the
earnings of an employee.
5. Dividends from stock in any corporation, the
income of which shall have been assessed, and the
tax on such income paid by the corporation under
the provisions of this article: Provided, that when
only part of the income of any corporation shall
have been assessed under this article, only a cor-
responding part of the dividends received there-
from shall be deducted.
6. Losses actually sustained during the income
year of property used in trade or business or of
property not connected with trade or business, if
arising from fire, storm, shipwreck, or other cas-
ualties or theft and if not compensated for by in-
surance or otherwise. No deduction shall be al-
lowed under this sub-section for losses arising
from personal loans or endorsements or other
transactions of a personal nature not entered in-
to for profit. A taxpayer shall be allowed to de-
duct losses in connection with the sale of securi-
ties only to the extent of the security gains dur-
ing the income year, unless such losses resulted
from the sale of stocks or bonds held by the tax-
payer for a period of two years or more prior to
the sale of such stocks or bonds.
7. Debts ascertained to be worthless and actu-
ally charged off within the income year, if the
amount has previously been included in gross in-
come in a return under this article.
8. A reasonable allowance for depreciation and
obsolescence of property used in the trade or busi-
ness shall be measured by the estimated life of
such property; and in case of mines, oil and gas
wells, other natural deposits and timber, a reason-
able allowance for depletion. The cost of prop-
erty acquired since January first, one thousand
nine hundred and twenty-one, plus additions and
improvements, shall be the basis for determining
the amount of depreciation, and if acquired prior
to that date the book value as of that date of the
property shall be the cost basis for determining
depreciation.
In cases of mines, oil and gas wells, and other
natural deposits, the cost of development not oth-
erwise deducted will be allowed as depletion, and
in the case of leases, the deduction allowed may
be equitably apportioned between the lessor and
the lessee.
In case the federal government determines de-
preciation or depletion of property for income tax
purposes upon the basis of book value instead of
original cost, the depreciation allowed under this
article shall be upon the same basis.
9. Contributions or gifts made by individuals
within the income year to corporations or associ-
ations operated exclusively for religious, charit-
able, scientific, or educational purposes, or for the
prevention of cruelty to children or animals, no
part of the net earnings of which inures to the
benefit of any private stockholder or individual, to
an amount not in excess of ten per centum (10%)
of the taxpayer's net income, as computed with-
out the benefit of this sub-division.
10. Resident individuals and domestic corpora-
tions having an established business in another
state, or investment in property in another state,
may deduct the net income from such business or
investment if such business or investment is in a
state that levies a tax upon such net income. The
deduction herein authorized shall in no case op-
erate to reduce the taxable income in this state
below the income actually earned in this state or
properly allocable as income earned in this state.
Nor shall the deduction in any way relate to in-
come received by individuals or domestic corpora-
tions from personal services or income from mort-
gages, stocks, bonds, securities, and deposits.
11. In the case of a non-resident individual, the
deductions allowed in this section shall be allowed
only if and to the extent that they are connected
with income arising from sources within the state;
and the proper apportionment and allocation of
the deductions with respect to sources of income
within and without the state shall be determined
under rules and regulations prescribed by the
commissioner of revenue. (1937, c. 127, s. 322, c.
249, s. 3.)
§ 7880(141). Items not deductible.— In com-
puting net income no deduction shall in any case
be allowed in respect of:
(a) Personal, living, or family expenses.
(b) Any amount paid out for new buildings or
for permanent improvements or betterments, made
to increase the value of any property or estate.
(c) Premiums paid on any life insurance policy.
(d) Contributions or gifts made by corpora-
tions.
(e) Income, and gift taxes, including federal
tax on undistributed earnings.
(f) Contributions to individuals.
(g) Commutation expenses.
(1937, c. 127, s. 323.)
§ 7880(142). Exemptions.— l. There shall be
deducted from the net income the following ex-
emptions:
(a) In the case of a single individual, a per-
sonal exemption of one thousand dollars
($1,000.00).
(b) In the case of a married man with a wife
living with him, two thousand dollars ($2,000.00),
or in the case of a person who is the head of a
household and maintains the same and therein
supports one or more dependent relatives, two
thousand dollars ($2,000.00).
(c) In the case of a widow or widower having
minor child or children, natural or adopted, two
thousand dollars ($2,000.00).
(d) Two hundred dollars ($200.00) for each in-
dividual (other than husband and wife) dependent
upon and receiving his chief support from the
taxpayer, if such dependent individual is under
eighteen years of age or is incapable of self-sup-
port because mentally or physically defective.
(e) In the case of a fiduciary filing a return for
that part of the net income of estates or trusts
which has not become distributable during the in-
come year one thousand dollars ($1,000.00).
In the case of a fiduciary filing a return for the
net income received during the income year by
deceased individuals, who at the time of death
were residents and who have died during the tax
year or income year, without having made a re-
[ 285 ]
% 7880(143)
TAXATION
§ 7880(146)
turn, two thousand dollars ($2,000.00) if married its assets distributed it shall make a return for
and one thousand dollars ($1,000.00) if single.
In the case of a fiduciary filing a return for an
insolvent or incompetent individual resident where
the fiduciary has complete charge of such net in-
come the same exemption to which the beneficiary
would be entitled.
(f) A married woman having a separate
and independent income, one thousand dollars
($1,000.00).
2. The exemptions allowed with respect to a
resident of this state having income from a busi-
ness or agency in another state, or with respect
to non-resident having a taxable income in this
state unless the entire income of such resident or
non-resident individual is shown in the return of
such resident or non-resident; and if the entire in-
come is so shown, the exemption shall be prorated
in the proportion of the income in this state to the
total income.
3. The status on the last day of the income year
shall determine the right to the exemptions pro-
vided in this section: Provided, that a taxpayer
shall be entitled to such exemption for husband
or wife or dependents who have died during the
income year. (1937, c. 127, s. 324.)
§ 7880(143). Obsolete.
§ 7880(144). Returns. — 1. Every resident or
non-resident having a net income during the in-
come year taxable in this state of one thousand
dollars ($1,000.00) and over, if single, or if mar-
ried and not living with husband or wife, or hav-
ing a net income for the income year of two thou-
sand dollars ($2,000.00) or over, if married and
living with husband or wife, and every corpora-
tion doing business in the state shall make a re-
turn under oath, stating specifically the items of
gross income and the deductions allowed by this
article, and such other facts as the commissioner
of revenue may require for the purpose of mak-
ing any computation required by this article.
Every resident of the state having gross income
from a business, agency or profession in excess
of five thousand dollars ($5,000.00) and every non-
resident having gross income from a business,
agency or profession within this state in excess of
five thousand dollars ($5,000.00) shall be required
to make a return. When the commissioner of
revenue has reason to believe any person or cor-
poration is liable for tax under this article, he
may require any such person or corporation to
make a return.
2. If the taxpayer is unable to make his own re-
turn, the return shall 'be made by a duly author-
ized agent or by a guardian or other person
charged with the care of the person or property
of such taxpayer.
3. The return by a corporation shall be sworn
to by the president; vice-president, or other prin-
cipal officer, and by the treasurer or assistant
treasurer.
4. The return of an individual, who, while liv-
ing, received income in excess of the exemption
during the income year, and who has died before
making the return, shall be made in his name and
behalf by the administrator or executor of the es-
tate, and the tax shall be levied upon and collected
from his estate.
5. Before a corporation shall be dissolved and
and settlement of tax for any income earned in
the income year up to its period of dissolution.
6. When the commissioner of revenue has rea-
son to believe that any taxpayer so conducts the
trade or business as either directly or indirectly
to distort his true net income and the net income
properly attributable to the state, whether by the
arbitrary shifting of income, through price fixing,
charges for service, or otherwise, whereby the net
income is arbitrarily assigned to one or another
unit in a group of taxpayers carrying on business
under a substantially common control, he may
require such facts as he deems necessary for the
proper computation of the entire net income and
the net income properly attributable to the state,
and in determining same the commissioner of rev-
enue shall have regard to the fair profit which
would normally arise from the conduct of the
trade or business.
7. When any corporation liable to taxation un-
der this article conducts its business in such a
manner as either directly or indirectly to benefit
the members of stockholders thereof or any per-
son interested in such business by selling its prod-
ucts or goods or commodities in which it deals at
less than the fair price which might be obtained
therefor, or where a corporation, a substantial
portion of whose capital stock is owned either di-
rectly or indirectly by another corporation, ac-
quires and disposes of the products of the corpo-
ration so owning a substantial portion of its stock
in such a manner as to create a loss or improper
net income for either of said corporations, or
where a corporation, owning directly or indirectly
a substantial portion of the stock of another cor-
poration, acquires and disposes of the products of
the corporation of which it so owns a substantial
portion of the stock in such manner as to create
a loss or improper net income for either of said
corporations, the commissioner of revenue may
determine the amount of taxable income of either
or any such corporations for the calendar or fiscal
year, having due regard to the reasonable profits
which, but for such arrangement or understand-
ing, might or could have been obtained by the
corporation or corporations liable to taxation un-
der this article from dealing in such products,
goods or commodities. (1937, c. 127, s. 326.)
§ 7880(145). Fiduciary returns. — 1. Every fi-
duciary subject to taxation under the provisions
of this article, as provided in section 7880(133),
shall make a return under oath for the individual,
estate or trust for whom or for which he acts, if
the net income thereof exceeds the personal ex-
emptions; or, if any dividends are received from
stock in corporations not incorporated in this
state.
2. The return made by a fiduciary shall state
specifically the items of gross income and the de-
ductions and exemptions allowed by this article,
and such other facts as the commissioner of rev-
enue may prescribe.
3. Fiduciaries required to make returns under
this article shall be subject to all the provisions of
this article which apply to individuals. (1937, c.
327, s. 327.)
§ 7880(146). Information at the source. — 1.
Every individual, partnership, corporation, joint-
[ 286 ]
§ 7880(147)
TAXATION
§ 7880(151)
slock company or association, or insurance com-
pany, being a resident or having a place of busi-
ness in this state, in whatever capacity acting, in-
cluding lessors or mortgagors of real or personal
property, fiduciaries, emplo3rers, and all officers
and employees of the state or of any political sub-
division of the state, having the control, receipt,
custody, disposal, or payment of interest (other
than interest coupons payable to bearer), rent,
salaries, wages, premiums, annuities, compensa-
tions, remunerations, emoluments or other fixed
or determinable annual or periodical gains, prof-
its, and incomes above exemptions allowed in this
article, paid or payable during any year to any
taxpayer, shall make complete return thereof to
the commissioner of revenue under such regula-
tions and in such form and manner and to such
extent as may be prescribed by him.
2. Every partnership having a place of business
in the state shall make a return, stating specifically
the items of its gross income and the deductions
allowed by this article, and shall include in the re-
turn the names and addresses of the individuals
who would be entitled to share in the net income
if distributed, and the amount of the distributive
share of each individual, together with the dis-
tributive shares of corporation dividends. The
return shall be sworn to by one of the partners.
3. Every corporation doing business or having
a place of business in this state shall file with the
commissioner of revenue, on such form and in
such manner as he may prescribe, the names and
addresses of all taxpayers, residents of North
Carolina, to whom dividends have been paid and
the amount of such dividends during the income
year. (1937, c. 127, s. 328.)
§ 7880(147). Time and place of filing returns.
— Returns shall be in such form as tlie commis-
sioner of revenue may from time to time pre-
scribe, and shall be filed with the commissioner
at his main office, or at any branch office which
he may establish, on or before the fifteenth day of
March in each year, and for all taxpayers using a
fiscal year, within seventy-five days after expira-
tion of the fiscal year. In case of sickness, ab-
sence, or other disability or whenever in his judg-
ment good cause exists, the commissioner may al-
low further time for filing returns.
There shall be annexed to the return the affi-
davit or affirmation of the taxpayer making the
return, to the effect that the statements contained
therein are true. The commissioner shall cause
to be prepared blank forms for the said returns,
and shall cause them to be distributed throughout
the state, and to be furnished upon application;
but failure to receive or secure the form shall not
relieve any taxpayer from the obligation of mak-
ing any return herein required. (1937, c. 127, s.
329.)
Applied in Winston-Salem v. Powell Paving Co 7 F
Supp. 424.
§ 7880(149). Failure to file returns; supple-
mentary returns. — If the commissioner of reve-
nue shall be of the opinion that any taxpayer has
failed to file a return or to include in a return
filed, either intentionally or through error, items
of taxable income, he may require from such tax-
payer a return or supplementary return, under
oath, in such form as he shall prescribe, of all the
items of income which the taxpayer received dur-
ing the year for which the return is made, whether
or not taxable under the provisions of this article.
If from a supplementary return or otherwise the
commissioner finds that any items of income, tax-
able under this article, have been omitted from
the original return, or any items returned as tax-
able that are not taxable, or any item of taxable
income over-stated, he may require the items so
omitted to be disclosed to him under oath of the
taxpayer, and to be added to or deducted from
the original return. Such supplementary return
and the correction of the original return shall not
relieve the taxpayer from any of the penalties to
which he may be liable under any provision of
this article. The commissioner may proceed un-
der the provisions of section 7880(152), whether
or not he requires a return or a supplementary re-
turn under this section. (1937, c. 127, s. 331.)
Collection and Enforcement of Tax
§ 7880(150). Time and place of payment of
tax. — (1) The full amount of the tax payable, as
shown on the face of the return, shall be paid to
the commissioner of revenue at the office where
the return is filed at the time fixed by law for fil-
ing the return. If the amount of the tax exceeds
one hundred dollars ($100.00), payment may be
made in two installments: One-half on the date
the return is filed, one-half on or before Septem-
ber fifteenth following, with interest on the de-
ferred payment at the rate of six per cent (6%)
per annum.
(2) If the time for filing the return be extended,
interest at the rate of six per cent (6%) per an-
num from the time when the return was originally
required to be filed to the time of payment shall
be added and paid.
(3) The tax may be paid with uncertified check
during such time and under such regulations as
the commissioner of revenue shall prescribe; but
if a check so received is not paid by the bank on
which it is drawn, the taxpayer by whom such
check is tendered shall remain liable for the pay-
ment of the tax and for all legal penalties the
same as if such check had not been tendered.
(1937. c. 127, s. 332.)
Applied in Winston- Salem v. Powell Paving Co., 7 F.
Supp. 424.
§ 7880(151). Examination of returns. — 1. As
soon as practicable after the return is filed the
commissioner of revenue shall examine and com-
pute the tax, and the amount so computed by the
commissioner shall be the tax. If the tax found
due shall be greater than the amount theretofore
paid, the excess shall be paid to the commissioner
within thirty days after notice of the amount
shall be mailed by the commissioner, and any
over-payment of tax shall be returned within
thirty days after it is ascertained.
2. If the return is made in good faith and the
under-statement of the tax is not due to any fault
of the taxpayer, there shall be no penalty on ad-
ditional tax added because of such under-state-
ment, but interest shall be added to the amount
of the deficiency at the rate of six per cent (6%)
per annum until paid.
3. If the under-statement is due to negligence
on the part of the taxpayer, but without intent to
defraud, there shall be added to the amount of the
[ 287
§ 7880(152)
TAXATION
§ 7880(154)
deficiency five per cent (5%) thereof, and, in ad-
dition, interest at the rate of six per cent (6%)
per annum until paid.
4. If the under-statement is found by the com-
missioner of revenue to be false or fraudulent,
with intent to evade the tax, the tax on the addi-
tional income discovered to be taxable shall be
doubled and six per centum (6%) per annum up-
on the amount of tax so found. The provisions
of this article with respect to revision and appeal
shall apply to a tax thus assessed.
5. The interest provided for in this section shall
in all cases be computed from the date the tax
was originally due to the date of payment. (1937,
c. 127, s. 333.)
§ 7880(152). Corrections and changes. — If the
amount of the net income for any year of any
taxpayer under this article, as returned to the
United States treasury department, is changed
and corrected by the commissioner of internal
revenue or other officer of the United States of
competent authority, such taxpayer, within thirty
days after receipt of internal revenue agent's re-
port or supplemental report reflecting the cor-
rected net income, shall make return under oath
or affirmation to the commissioner of revenue of
such corrected net income. If the taxpayer fails
to notify the commissioner of revenue of assess-
ment of additional tax by the commissioner of in-
ternal revenue the statute of limitations shall not
apply. The commissioner of revenue shall there-
upon proceed to determine, from such evidence as
he may have brought to his attention or shall oth-
erwise acquire, the correct net income of such tax-
payer for the fiscal or calendar year, and if there
shall be any additional tax due from such tax-
payer the same shall be assessed and collected;
iand if there shall have been an over-payment of
the tax the said commissioner shall, within thirty
days after the final determination of the net in-
come of such taxpayer, refund the amount of such
excess: Provided, that any taxpayer who fails to
comply with this section as to making report of
such change as made by federal government with-
in the time specified shall be subject to all penal-
ties as provided in section 7880(154), in case of
additional tax due, and shall forfeit his rights to
any refund due by reason of such change. (1937,
c, 127, s. 334.)
§ 7880(153). Additional taxes. — If the commis-
sioner cf revenue discovers from the examination
of the return or otherwise that the income of any
taxpayer, or any portion thereof, has not been as-
sessed, he may, at any time within three years
(except where the taxpayer has failed to notify
the commissioner of additional assessment by the
federal department — see section 7880(152)) after
the time when the return was due, give notice in
writing to the taxpayer of such deficiency. Any
taxpayer feeling aggrieved by such proposed as-
sessment shall be entitled to a hearing before the
commissioner of revenue, if within thirty days
after giving notice of such proposed assessment
he shall apply for such hearing in writing, ex-
plaining in detail his objections to same. If no
request for such hearing is so made, such pro-
posed assessment shall be final and conclusive. If
the request for hearing is made, the taxpayer shall
be heard by the commissioner of revenue, and
after such hearing the commissioner of revenue
shall render his decision. The taxpayer shall be
advised of his decision and such amount shall be
due within ten days after notice is given. The
provisions of this article with respect to revision
and appeal shall apply to the tax so assessed. The
limitation of three years to the assessment of such
tax or an additional tax shall not apply to the as-
sessment of additional taxes upon fraudulent re-
turns. Upon failure to file returns and in the ab-
sence of fraud the limitation shall be five years.
(1937, c. 127, s. 335.)
§ 7880(154). Penalties, — 1. If any taxpayer,
without intent to evade any tax imposed by this
article, shall fail to file a return of income and
pay the tax, if one is due, at the time required by
or under the provisions of this article, but shall
voluntarily file a correct return of income and pay
the tax due within sixty days thereafter, there
shall be added to the tax an additional amount
equal to five per cent thereof, but such additional
amount shall in no case be less than one dollar
and interest at the rate of one-half of one per
centum ($4%) per month or fraction thereof from
the time said return was required by law to be
filed until paid.
2. If any taxpayer fails voluntarily to file a re-
turn of income or pay the tax, if one is due, with-
in sixty days of the time required by or under the
provisions of this article, there shall be added to
the tax an additional amount equal to twenty-five
per cent (25%) thereof and interest at the rate of
one-half of one per cent (^2%) per month or frac-
tion thereof, from the time such return was re-
quired to be filed until paid, but the penalty shall
not be less than five dollars ($5.00).
3. If any taxpayer fails to file a return within
sixty days of the time prescribed by this article,
any judge of the superior court, upon petition of
the commissioner of revenue or of any ten taxa-
ble residents of the state, shall issue a writ of
mandamus requiring such person to file a return.
The order of notice upon the petition shall be re-
turnable not later than ten days after the filing
of the petition. The petition shall be heard and
determined on the return day or such day there-
after as the court shall fix, having regard to the
speediest possible determination of the case con-
sistent with the rights of the parties. The judg-
ment shall include costs in favor of the prevail-
ing party. All writs and processes may be issued
from the clerk's offices in any county, and, except
as aforesaid, shall be returnable as the court shall
order.
4. The failure to do any act required by or un-
der the provisions of this article shall be deemed
an act committed in part at the office of the com-
missioner of revenue in Raleigh. The certificate
of the commissioner of revenue to the effect that
a tax has not been paid, that a return has not been
filed, or that information has not been supplied,
as required by or under the provisions of this ar-
ticle, shall be prima facie evidence that such tax
has not been paid, that such return has not been
filed, or that such information has not been sup-
plied.
5. If any taxpayer who has failed to file a re-
turn or has filed an incorrect or insufficient re-
turn, and has been notified by the commissioner
[ 288
§ 7880(155)
TAXATION
§ 7880 (1 56) b
of revenue of his delinquency, refuses or neglects
within twenty days after such notice to file a
proper return, or files a fraudulent return, the
commissioner shall determine the income of such
taxpayer, according to his best information and
belief, and assess the same at not more than dou-
ble the amount so determined. The commissioner
may, in his discretion, allow further time for the
filing of a return in such case.
6. Any person required under this article to pay
any tax or required by law or regulations made
under authority thereof to make a return, keep
any records, or supply any information for the
purposes of computation, assessment or collection
of any tax imposed by this article, who wilfully
fails to pay this tax, make such return, keep such
records or supply such information at the time or
times required by law or regulations, shall, in ad-
dition to other penalties provided by law, be
guilty of a misdemeanor, and upon conviction
thereof, shall be fined not more than five hundred
dollars ($500.00) or imprisoned not exceeding six
months, or punished by both such fine and im-
prisonment at the discretion of the court, within
the limitations aforesaid. (1937, c. 127, s. 336.)
Revision and Appeal
§ 7880(155). Revision by commissioner of rev-
enue.— A taxpayer may apply to the commissioner
of revenue for revision of the tax assessed against
him at any time within three years from the time
of the filing of the return or from the date of the
notice of assessment of any additional tax. The
commissioner shall grant a hearing thereon, and
if upon such hearing he shall determine that the
tax is excessive or incorrect, he shall resettle the
same according to the law and the facts, and ad-
just the computation of tax accordingly. The
commissioner shall notify the taxpayer of his de-
termination, and shall refund to the taxpayer the
amount, if any, paid in excess of the tax found by
him to be due. (1937, c. 127, s. 340.)
§ 7880(156). Appeal. — Any taxpayer may file
formal exceptions to a finding by the commis-
sioner of revenue, under the provisions of this
article with respect to his taxable income, either
to a matter of fact or law, as far as possible stating
such exceptions separately. After they are filed,
the commissioner shall pass upon the same for-
mally, and notify the taxpayer immediately of his
findings upon these exceptions. The taxpayer
may, within ten days after notification of the com-
missioner's ruling upon these exceptions, appeal to
the superior court of Wake county, upon paying
the tax assessed by the commissioner and giving a
bond for costs in the sum of two hundred dollars
($200.00) : Provided, the taxpayer may within the
above prescribed time first appeal to the state
board of assessments on the exceptions to the
findings of the commissioner; and provided fur-
ther, that the commissioner may in his discretion
require a surety bond or a deposit of state or gov-
ernment bonds in double the amount of the alleged
deficiency. Appeal may then be taken by either
the taxpayer or the commissioner to the superior
court of Wake county as provided herein. Upon
receipt of such notice and the taxes paid, and the
filing of the cost bond in the sum of two hundred
dollars ($200.00), the commissioner shall certify
the record to the superior court of Wake county.
In the superior court the proceedings shall be as
follows:
The cause shall be entitled, "State of North Car-
olina on Relation of the Commissioner of Revenue
vs. Appellant" (giving name). If there are ex-
ceptions to facts found by the commissioner, it
shall be placed on the civil issue docket of such
court and shall have precedence over other civil ac-
tions, and shall be tried under the same rules and
regulations as are prescribed for the trial of such
civil actions, except that the findings of the com-
missioner shall be prima facie correct. If only is-
sues of law, or if issues of fact are raised, and the
appellant shall waive jury trial at the time of tak-
ing the appeal, the appeal may be had to the su-
perior court of the county in which the appellant
resides, and the cause shall be heard by the judge
holding court in the judicial district in which the
appeal is docketed, at chambers, upon ten days
notice to the parties of the time and place of
hearing, and the said judge shall pass upon and
determine all issues, both of law and fact, the state
hereby waiving in such cases a trial by jury.
Either party may appeal to the supreme court
from the judgment of the superior court under the
rules and regulations prescribed by law for appeals,
except that the state, if it should appeal, shall not
be required to give any undertaking or make any
deposit to secure the cost of such appeal, and the
supreme court may advance the cause on its
docket so as to give the same a speedy hearing.
Any taxes, interest, or penalties paid, found by the
court to be in excess of those which can be legally
assessed, shall be ordered refunded to the taxpayer,
with interest from the time of payment. (1937, c.
127, s. 341.)
Art. 5. Schedule E. Emergency Revenue
§ 7880(156)a. Short title. — This act shall be
known and may be cited as the Emergency Reve-
nue Act of one thousand nine hundred thirty-seven.
(1937, c. 127, s. 400.)
§ 7880(156)b. Purpose. — The taxes levied in this
article are to provide emergency revenue for the
support of the public schools of the state in sub-
stitution for the taxes formerly levied on property
for this purpose. They are levied for the biennium
of fiscal years beginning July first, one thousand
nine hundred thirty-seven, and ending June thir-
tieth, one thousand nine hundred thirty-nine.
The tax upon the sale of tangible personal prop-
erty in this state is levied as a license or privilege
tax for engaging or continuing in the business of
a "wholesale" or "retail" merchant as defined in
this article. Retail merchants may add to the
price of merchandise the amount of the tax on the
sale thereof, and when so added shall constitute a
part of such price, shall be a debt from purchaser
to merchant until paid, and shall be recoverable at
law in the same manner as other debts. It is the
purpose and intent of this article that the tax levied
herein on retail sales shall be added to the sales
price of merchandise and thereby be passed on to
the consumer instead of being absorbed by the
merchant.
Any retail merchant who shall, by any character
of public advertisement, offer to absorb the tax
levied in this article upon the retail sale of mer-
N. C. Supp.— 19
[ 289 ]
§ 7880(156)c
TAXATION
§ 7880 ( 156) f
chandise, or in any manner, directly or indirectly,
advertise that the tax herein imposed is not con-
sidered as an element in the price to the consumer,
shall be guilty of a misdemeanor. Any violations
of the provisions of this section reported to the
commissioner of revenue shall be reported by the
commissioner of revenue to the attorney general
of the state, to the end that such violations may
be brought to the attention of the solicitor of the
court of the county or district whose duty it is to
prosecute misdemeanors in the jurisdiction. It
shall be the duty of such solicitor to investigate
such alleged violations and if he finds that this
section has been violated to prosecute such vio-
lations. The provisions of this section are deemed
necessary to prevent fraud and unfair trade prac-
tices, but it is the intent of the general assembly
that if one or both of such provisions be held un-
constitutional and void, that such invalid provision
or provisions be considered separable and that the
balance of this article be given effect. (1937, c.
127, s. 401.)
§ 7880(156)c. Contingency. — If the congress of
the United States shall, at any time during the
biennium for which taxes are levied in this article,
enact any form of sales or production tax distribut-
able in whole or in part to the several states, the
governor and council of state shall estimate the
proportion of such tax distributable to this state,
and shall, by proclamation of the governor, abate
a uniform percentage of all the taxes levied in this
article equal in estimated revenue yield to the
estimated proportion of yield of such federal tax,
and from and after the effective date of such proc-
lamation the commissioner of revenue shall en-
force and collect only the remaining percentage of
taxes levied in this article. (1937, c. 127, s. 402.)
•For the purposes of
§ 7880(156)e. Definitions.
this article:
1. The word "person" shall mean any person,
firm, partnership, association, corporation, estate
or trust.
2. The word "commissioner" shall mean the
commissioner of revenue of the state of North
Carolina.
3. The word "merchant" shall include any in-
dividual, firm, corporation, domestic or foreign, es-
tate or trust, subject to the tax imposed by this
article.
4. The words "wholesale merchant" shall mean
every person who engages in the business of buy-
ing any articles of commerce and selling same to
merchants for resale. For the purposes of this ar-
ticle any person, firm, corporation, estate or trust
engaged in the business of selling mill machinery
or mill machinery parts and accessories, for manu-
facturing industries and plants, rough and dressed
lumber (but not mill work), brick or hollow tile,
sand, gravel, crushed stone, rock and granite, and
the sale of cotton, tobacco and other farm products,
by others than producers, to others for processing
or manufacture, shall to the extent of such sales
be considered a "wholesale merchant."
5. The words "retail merchant" shall mean every
person who engages in the business of buying or
acquiring, by consignment or otherwise, any ar-
ticles of commerce and selling same at retail.
6. The word "retail" shall mean the sale of any
articles of commerce in any quantity or quantities
[ 290
for any use or purpose on the part of the pur-
chaser other than for resale.
7. The word "sale" shall mean any transfer of
the ownership or title of tangible personal prop-
erty for any kind of consideration. Transactions
whereby the title is ultimately to pass, and whether
such transactions are called leases, conditional
sales, or by any other name, and although posses-
sion is retained for security, shall be sales.
8. The words "gross sales" shall mean the gross
sales price at which such sales were made, whether
for cash or on time, and if on time, the price
charged on the books for such sales, without al-
lowance for cash discount, and shall be reported
as sales with reference to the time of delivery to
the purchaser, except as this provision is modified
by section 7880(l56)i. (1937, c. 127, s. 404.)
For an analysis of former subsections 12 and 13 of this
section, see 13 N. C. I^aw Rev., No. 4, p. 420.
Editor's Note.— Subsections 11, 12 and 13 referred to in
the following notes were omitted in the 1937 Act.
Subsection 11. — Second-hand automobiles taken in by a
dealer in part payment on other second-hand automobiles
were held subject to the tax levied by this article, upon
resale of such second-hand cars by the dealer, the exemp-
tion from the tax provided by this subsection of this sec-
tion applying, by its terms, only to second-hand automobiles
taken in by the dealer in part payment on new automobiles
sold by the dealer. McCanless Motor Co. v. Maxwell, 210
N. C. 725, 188 S. F- 389
The tax imposed by subsection 13 is not a tax upon in-
terstate commerce in violation of art. I, § 8(3), of the Fed-
eral Constitution, since the tax is not imposed until after
the purchase of the automobile and after it has come to
rest within this state for use herein, and is levied without
regard to where it was purchased. Powell v. Maxwell, 210
N. C. 211, 186 S. F. 326.
And is not void as discriminatory in amount because of
the provision that such tax need not be paid when the
owner furnishes a certificate from a dealer in this state
to the effect that the tax has been paid, and that such
dealer will be responsible therefor to the Commissioner of
Revenue, since the section requires the same amount to be
paid regardless of whether the car is purchased from a
dealer within or outside the state, the tax in one instance
being payable to the Commissioner of Revenue and in the
other instance to the dealer in this state from whom the
car is purchased. Powell v. Maxwell, 210 N. C. 211, 186
S. F- 326.
Nor is it a tax upon transactions taking place beyond the
confines of the state in violation of the Due Process clause
of the Federal Constitution (14th Amendment), since the
tax is neither an ad valorem nor a sales tax upon the pur-
chase of automobiles, but an excise or use tax imposed
upon the owners for the privilege of using them upon the
highways of the state. Powell v. Maxwell, 210 N. C. 211,
186 S. F. 326.
Applied, as to subsection 12, in Powell v. Maxwell, 210 N.
C. 211, 186 S. F. 326,
Cited in McCanless Motor Co. v. Maxwell, 210 N. C. 725,
188 S. F- 389.
§ 7880(156)f. Exemptions. — The taxes imposed
in this article shall not apply to the following:
(a) It is not the purpose of this article to im-
pose a tax upon the business of producing, manu-
facturing, mixing, blending, or processing any ar-
ticles of commerce, or upon the sale of such ar-
ticles of commerce by any one who engages in the
business of producing, manufacturing, mixing,
blending, or processing, when such articles are
sold to a manufacturer or producer, or to a whole-
sale or retail merchant as defined in this article.
The sale of such articles of commerce at retail to
a user or consumer shall be taxable at the rate of
tax provided in this article upon the retail sale of
merchandise: Provided, however, that ice, medi-
cines sold on prescription of physicians, or medi-
cines, compounded, processed or blended by the
druggist offering the same for sale at retail, and
7880(156)f
TAXATION
§ 7880(156)£
the sale of products of farms, forests, mines, and
waters, when such sales are made by the producers
in their original or unmanufactured state, shall be
exempt from the tax levied in this article. Fish
and sea foods shall be likewise exempt when sold
by the fishermen.
(b) It is not the intent of this article to exempt
gasoline from the retail sales tax levied in this ar-
ticle, nor is it considered expedient to levy a tax
upon the wholesale distribution of gasoline, pay-
able at the source of distribution, and an additional
tax upon the retail sale. Therefore, to carry out
the intent of this article, a proportion of the tax
of six cents per gallon, to be determined in the
manner herein set out, shall be deemed in satisfac-
tion of the tax upon retail sales levied in this ar-
ticle. The director of the budget, the chairman of
the highway commission and the commissioner of
revenue shall, in the first fifteen days of each
quarterly period, determine the total amount of
gasoline sold in the state in the preceding three
months, and the average retail price, inclusive of
gasoline tax, and shall on this basis compute the
amount of tax liability at the rate of tax levied
in this article on retail sales, and the sum so com-
puted shall be deducted from the tax of six cents
per gallon, and credited by the state treasurer to
the sales tax revenue levied in this article. These
sums shall be available only after full provision is
made for the expense of collecting highway reve-
nues, for the administration of the highway and
public works commission, for the service of the
debt, and for reasonable maintenance of state and
county highways, nor shall the application herein
made become available to the general fund unless
the director of the budget shall find such sum to
be reasonably necessary to meet appropriations
from the general fund. The amount so allocated
to the general fund shall not be transferred from
the highway fund, or become a definite charge
against it until the surplus in the general fund at
the end of the present fiscal year, together with
current revenues, shall have been exhausted, or
until the director of the budget shall find as a fact
that such transfer is necessary to prevent a deficit
in the general fund; nor shall such transfer or any
part thereof be made until the appropriations from
the highway fund, hereinabove referred to, have
been provided for. In construing this provision
the director of the budget shall not be required
to take into account an incidental credit balance
of the general fund.
(c) Sale of commercial fertilizer on which the
inspection tax is paid, and lime and land plaster
used for agricultural purposes whether the inspec-
tion tax is paid or not.
(d) Sales made to the state of North Carolina
or any of its sub-divisions, including sales of mer-
chandise and articles of commerce to agencies of
state or local governments for distribution in pub-
lic welfare or relief work. This exemption shall
not apply to sales made to organizations, corpora-
tions, and institutions that are not governmental
agencies, owned and controlled by the state or
local governments.
(e) The gross receipts from sales of tangible
personal property which the state is prohibited
from taxing under the constitution or laws of the
a
United States of America or under the constitu-
tion of this state.
(f) Accounts of purchasers, representing taxable
sales, on which the tax imposed by this article has
been paid, that are found to be worthless and actu-
ally charged off for income tax purposes may, at
corresponding periods, be deducted from gross
sales in so far as they represent taxable sales
made after July first, one thousand nine hun-
dred thirty-three, and to be added to gross
sales if afterwards collected.
(g) Sales of public school books on the adopted
list and the selling price of which is fixed by state
contract.
(h) Sales of used articles taken in trade, or a
series of trades, as a credit or part payment on the
sale of a new article, provided the tax levied in
this article is paid on the full gross sales price
of the new article. In the interpretation of this
sub-section, new article shall be taken to mean the
original stock in trade of the merchant, and shall
not be limited to newly manufactured articles.
The resale of articles repossessed by the vendor
shall likewise be exempt from gross sales taxable
under this article.
(i) Conditional exemptions:
In addition to the exemptions set out in this
section there shall also be an exemption of sales
by retail merchants, upon conditions hereinafter
set out, of the following articles:
Flour, meal, meat, lard, milk, molasses, salt,
sugar, coffee, bread and rolls.
It is the intention that this exemption shall apply
to these primary and essential articles of food as
the words used are commonly understood.
Flour means wheat flour and does not include
cereal products other than flour.
Meal means corn meal and not grits, flakes, or
other cereal products.
Meat includes fresh or cured meats of animals
or fish other than shell-fish, but does not include
any specialized products in cans, jars, boxes, or
cartons for the retail trade.
Lard is intended to include articles commonly
understood by the use of this term, both from ani-
mal fat and vegetable substitutes, but does not in-
clude oleomargarine, butter, oils, or other like
products.
Molasses includes the product commonly under-
stood by that name, and does not include cane,
sugar, maple, or other syrups.
Milk includes sweet and buttermilk, but does not
include canned milk, evaporated milk, or other
milk products.
Sugar includes plain and granulated sugar as
commonly understood and no other sugar products.
Coffee means plain, roasted, or ground coffee as
commonly understood, but not coffee substitutes.
Bread and rolls shall include only plain white
and brown rye bread and rolls and shall not in-
clude cakes, buns and other pastries.
(j) Every merchant selling merchandise to other
merchants for resale shall deliver to the customer
a bill of sale for each sale of merchandise, whether
sold for cash or on credit, and shall make and re-
tain a duplicate or carbon copy of each such bill of
sale, and shall keep a file of all such duplicate bills
of sale for at least three years from date of sale,
or until inspected and audited by a representative
of the department of revenue. Failure to comply
911
7880(156) g
TAXATION
§ 7880(156)i
with the provisions of this sub-section shall sub-
ject the seller to liability for tax upon such sales
at the rate of tax levied in this article upon retail
sales.
Unless records are kept in such manner as will
accurately disclose separate accounting of sales of
taxable and non-taxable merchandise and in such
form as may be accurately and conveniently
checked by the representatives of the department
of revenue, the exemptions herein made shall not
be allowed, and it shall be the duty of the com-
missioner or his agents to assess a tax upon the
total gross sales at the rate of tax levied upon re-
tail sales, and if records are not kept showing
total gross sales, it shall be the duty of the com-
missioner or his agents to assess a tax upon an
estimation of sales upon the best information ob-
tainable. (1937, c. 127, s. 406.)
Imposition of Tax
§ 7880(156)g. Must obtain license; additional tax
on merchants or sellers of motor vehicles. — If any
person, after the thirtieth day of June, one thou-
sand nine hundred thirty-seven, shall engage or
continue in any business for which a privilege tax
is imposed by this article, such person shall apply
for and obtain from the commissioner, upon the
payment of the sum of one dollar ($1.00) a license
to engage in and conduct such business upon the
condition that such person shall pay the tax ac-
cruing to the state of North Carolina under the
provisions of this article; and he shall thereby be
duly licensed to engage in and conduct such busi-
ness. The license tax levied in this section shall
be a continuing license until revoked for failure
to comply with the provisions of this article. Li-
cense issued under article V, chapter four hundred
forty-five, Public Laws of one thousand nine hun-
dred thirty-three, for the year one thousand nine
hundred thirty-four one thousand nine hundred
thirty-five and under chapter three hundred
seventy-one, Public Laws of one thousand nine
hundred thirty-five, for the biennium one thousand
nine hundred thirty-five one thousand nine hun-
dred thirty-seven, shall be deemed a continuing
license under this section.
An additional tax is hereby levied for the privi-
lege of engaging or continuing in the business of
selling tangible personal property, as follows:
(a) Wholesale Merchants. — Upon every whole-
sale merchant as defined in this article, an annual
license tax of ten dollars ($10.00). Such annual
license shall be paid in advance within the first
fifteen days of July in each year or, in the case of
a new business, within fifteen days after business
is commenced. There is also levied on each whole-
sale merchant an additional tax of one-twentieth
of one per cent (l/20th of 1%) of the total gross
sales of the business.
The sale of any article of merchandise by any
"wholesale merchant" to any one other than a
merchant for resale shall be taxable at the rate of
tax provided in this article upon the retail sale of
merchandise. In the interpretation of this article
the sale of any articles of commerce by any
"wholesale merchant" to any one not taxable un-
der this article as a "retail merchant," except as
otherwise provided in this article, shall be taxable
by the wholesale merchant at the rate of tax pro-
vided in this article upon the retail sale of mer-
chandise. The commissioner of revenue is au-
thorized to make appropriate regulations, con-
sistent with this article to prevent abuse with re-
spect to existing regulations defining transactions
entitled to the rate of tax levied on sales at whole-
sale.
(b) Retail Merchants. — Upon every retail mer-
chant, as defined in this article, a tax of three per
cent (3%) of the total gross sales of the business
of every such retail merchant: Provided, however,
the maximum tax that shall be imposed upon the
sale of any single article of merchandise shall be
fifteen dollars ($15.00).
(c) Motor Vehicles. — In addition to the taxes
levied in this article or in any other law, there is
hereby levied and imposed upon every person, for
the privilege of using the streets and highways of
this state, a tax of three per cent (3%) of the sales
or purchase price of any new or used motor ve-
hicle purchased or acquired for use on the streets
and highways of this state requiring registration
thereof under the Motor Vehicle Laws of this
state, which said amount shall not exceed fifteen
dollars ($15.00), and shall be paid to the commis-
sioner of revenue at the time of applying for cer-
tificate of title or registration of such motor ve-
hicle. No certificate of title or registration plate
shall be issued for same unless and until said tax
has been paid: Provided, however, if such person
so applying for certificate of title or registration
and license plate for such motor vehicle shall fur-
nish to the commissioner of revenue a certificate
from a .motor vehicle dealer licensed to do business
in this state, upon a form furnished by the com-
missioner, certifying that such person has paid the
tax thereon levied in this article, the tax herein
levied shall be remitted to such person to avoid in
effect double taxation on said motor vehicle under
this article. The term "motor vehicle" as used in
this section shall include trailers. (1937, c. 127,
s. 405.)
§ 7880(156)h, Taxes payable.^The taxes levied
in this article shall be due and payable in monthly
installments on or before the fifteenth day of the
month next succeeding the month in which the tax
accrues. Every taxpayer liable for the tax im-
posed by this article shall, on or before the fif-
teenth day of the month, make out or prepare a
return on the blank report form furnished by the
commissioner of revenue, showing the total gross
sales, the sales exempted from the tax, the net
taxable sales, the amount of tax covering sales in
the preceding month, and shall mail same, together
with the remittance for the amount of the tax, to
the commissioner. Such monthly return shall be
signed by the taxpayer or a duly authorized agent
of the taxpayer. (1937, c. 127, s. 407.)
§ 7880(156)i. Credit sales. — Any person taxable
under this article having cash and credit sales may
report such cash and credit sales separately, and
upon making application therefor may obtain from
the commissioner an extension of time for the
payment of taxes due on such credit sales. Such
extension shall be granted under such rules and
regulations as the commissioner may prescribe.
When such extension is granted, the taxpayer
shall thereafter include in each monthly report all
collections made during the month next preceding
292 ]
§ 7880(156)1
TAXATION
§ 7880(156)p
and shall pay taxes due thereon at the time of fil-
ing such report. (1937, c. 127, s. 408.)
§ 7880(156)1. Forms for making returns. — The
monthly returns required under this article shall
be made upon forms to be prescribed by the com-
missioner. (1937, c. 127, s. 411.)
§ 7880(156)m. Extension of time for making re-
turns.— The commissioner for good cause may ex-
tend the time for making any return required un-
der the provisions of this article, and may grant
such additional time within which to make such
return as the commissioner may deem proper, but
the time for filing any such return shall not be ex-
tended beyond the fifteenth day of the month next
succeeding the regular due date of such return. If
the time for filing a return be extended, interest
at the rate of one-half of one per centum per
month from the time the return was required to
be filed to the time of payment shall be added and
paid. (1937, c. 127, s. 412.)
§ 7880 (1 56) o. Commissioner to correct error. —
As soon as practicable after the return is filed the
commissioner shall examine it; if it then appears
that the correct amount of tax is greater or less
than that shown in the return, the tax shall be
recomputed.
Excessive Payments. — If the amount already paid
exceeds that which should have been paid, on the
basis of the tax so recomputed, the excess shall be
credited or refunded to the taxpayer in accordance
with the provisions of this article.
Deficiency of Amount. — (a) If the amount al-
ready paid is less than the amount which should
have been paid, the difference to the extent not
covered by any credits under this article, together
with interest thereon at the rate of one-half of one
per centum per month from the time the tax was
due, shall be paid upon notice and demand by the
commissioner.
(b) If any part of the deficiency is due to negli-
gence or intentional disregard to authorized rules
and regulations, with knowledge thereof, but with-
out intent to defraud, there shall be added as dam-
ages ten per centum of the total amount of the
deficiency in the tax, and interest in such a case
shall be collected at the rate of one per centum per
month of the amount of such deficiency in the tax
from the time it was due, which interest and dam-
ages shall become due and payable upon notice
and demand by the commissioner.
(c) If any part of the deficiency is due to fraud
with intent to evade the tax, then there shall be
added as damages not more than one hundred per
centum of the total amount of the deficiency in
the tax, and in such case the whole amount of tax
unpaid, including charges so added, shall become
due and payable upon notice and demand by the
commissioner, and an additional one per centum
per month on the tax shall be added from the date
such tax was due until paid.
(d) If the amount already paid is less than the
amount which should have been paid, the commis-
sioner or his duly authorized agents shall notif}'
the taxpayer of the balance due, plus such interest
and damages as are set forth in (a), (b), and (c)
just preceding, and if this total amount is not paid
or no appeal is taken within thirty days from the
date of notice, such action shall be considered as
a refusal on the part of the taxpayer to make a
return, and the taxpayer shall be subject to such
penalties or provisions as are provided in this ar-
ticle for failure to make a return.
If any taxpayer under this act goes into bank-
ruptcy, receivership, or turns over his stock of
merchandise by voluntary transfer to creditors,
the tax liability under this article shall constitute
a prior lien on such stock of merchandise, subject
to execution, and it shall be the duty of the trans-
feree in any such case to retain the amount of the
tax due from the first sales from such stock of
merchandise and to pay same to the commissioner
of revenue. (1937, c. 127, s. 414.)
§ 7880(156)p. Taxpayer must keep records;
failure to make returns; duty and power of com-
missioner.— It shall be the duty of every person
engaging or continuing in this state in any busi-
ness for which a privilege tax is imposed by this
article to keep and preserve suitable records of the
gross income, gross receipts and/or gross receipts
of sales of such business, and such other books or
accounts as may be necessary to determine the
amount of tax for which he is liable under the
provisions of this article. And it shall be the duty
of every such person to keep and preserve, for a
period of three years, all invoices of goods and
merchandise purchased for resale, and all such
books, invoices, and other records shall be open
for examination at any time by the commissioner
or his duly authorized agent.
(a) Delayed Returns. — -If a delinquent return is
received by the commissioner or his duly author-
ized agents, the taxpayer shall be assessed with a
five per centum penalty plus interest at one-half of
one per centum per month from the date the tax
was due. The penalty provided in this sub-section
shall not be less than one dollar ($1.00).
(b) Failure to Make Returns. — If the taxpayer
shall fail to make or refuse to make the returns
required under this article, then such returns shall
be made by the commissioner or his duly author-
ized agents from the best information available,
and such returns shall be prima facie correct for
the purposes of this article, and the amount of tax
due thereby shall be a lien against all the property
of the taxpayer until discharged by payments, and
if payment not be made within thirty days after
demand therefor by the commissioner or his duly
authorized agents, there shall be added not more
than one hundred per centum as damages, together
with interest at the rate of one per centum per
month from the time such tax was due. If such
tax be paid within thirty days after notice by the
commissioner, then there shall be added ten per
centum as damages, and interest at the rate of one
per centum from the time such tax was due un-
til paid.
(c) Not to Issue Certificate of Title or License.
— As an additional means of enforcement of the
payment of the tax herein levied the department
of revenue shall not issue a certificate of title or a
license plate for any new or used motor vehicle
sold by any merchant or dealer licensed to do
business in this state until the tax levied for the
sale of same in this article has been paid, or a cer-
tificate, duly signed by a dealer licensed to do
business in this state, is filed at the time the ap-
plication for title or license plate is made for such
93 ]
§ 7880 ( 156) q
TAXATION
§ 7880(156)v
motor vehicle; such certificate to be on such form
as may be prescribed by the commissioner of rev-
enue, and that such certificate shall show that the
said licensed dealer has assumed the responsibility
for the payment of the tax levied under this article
and agrees to report and remit the tax in his next
regular monthly sales tax report required to be
filed under this article. (1937, c. 127, ss. 407, 415.)
§ 7880(156)q. Tax shall be lien.— The tax im-
posed by this article shall be a lien upon the stock
of goods and/or any other property of any person
subject to the provisions hereof who shall sell out
his business or stock of goods, or shall quit busi-
ness, and such person shall be required to make
out the return provided for under section 7880-
(156)h within thirty days after the date he sold
•out his business or stock of goods, or quit business,
and his successor in business shall be required to
withhold sufficient of the purchase money to cover
the amount of said taxes due and unpaid until such
time as the former owner shall produce a receipt
from the commissioner showing that the taxes
have been paid, or a certificate that no taxes are
due. If the purchaser of a business or stock of
goods shall fail to withhold purchase money as
above provided, and the taxes shall be due and
unpaid after the thirty-day period allowed, he shall
be personally liable for the payment of the taxes
accrued and unpaid on account of the operation of
the business by the former owner. (1937, c. 127,
s. 416.)
§ 7880 (1 56) r. Aggrieved person may file peti-
tion.— If any person having made the return and
paid the tax as provided by this article feels ag-
grieved by the assessment made upon him by the
comimissioner, or, in the absence of a report, if an
assessment has been made by the commissioner
under the provisions of this article, the taxpayer
may apply to the commissioner by petition, in writ-
ing, within thirty days after the notice is mailed to
him, for a hearing and a correction of the amount
of the tax so assessed upon him by the commis-
sioner, in which petition he shall set forth the
reasons why such hearing should be granted and
the amount in which such tax should be reduced.
The commissioner shall promptly consider such
petition, and may grant such hearing or deny the
same. If denied, the petitioner shall be forthwith
notified thereof; if granted, the commissioner shall
notify the petitioner of the time and place fixed
for such hearing. After such hearing the commis-
sioner may make such order in the matter as may
appear to him just and lawful, and shall furnish a
copy of such order to the petitioner. Any person
improperly charged with any tax and required to
pay the same may recover the amount paid, to-
gether with interest, in any proper action or suit
against the commissioner, and the superior court
of the county in which the taxpayer resides or is
located shall have original jurisdiction of any ac-
tion to recover any tax improperly collected. In
any suit to recover taxes paid or to collect taxes,
the court shall adjudge costs to such extent and
in such manner as may be deemed equitable.
Either party to such suit shall have the right to
appeal to the supreme court of North Carolina as
now provided by law. In the event a final judg-
ment is rendered in favor of the taxpayer in a suit
to recover illegal taxes, then it shall be the duty
of the state auditor, upon receipt of a certified
copy of such final judgment, to issue a warrant
directed to the state treasurer in favor of such tax-
payer to pay such judgment, interest, and costs. It
shall be the duty of the state treasurer to honor
such warrant and pay such judgment out of any
funds in the state treasury.
No injunction shall be awarded by any court or
judge to restrain the collection of the taxes im-
posed by this article, or to restrain the enforce-
ment of this article. (1937, c. 127, s. 417.)
§ 7880(156)s. Warrant for collection of tax; tax
shall constitute debt due state. — If any tax imposed
or any portion of such tax be not paid within
thirty days after the same becomes due, the com-
missioner shall proceed to enforce the payment of
such tax in the manner provided by section
7880(169). (1937, c. 127, s. 418.)
§ 7880(l56)u. Additional tax; remittances made
to commissioner; records. — ■ The tax imposed by
this article shall be in addition to all other li-
censes and taxes levied by law as a condition
precedent to engaging in any business taxable
hereunder, except as in this article otherwise
specifically provided. But no county, municipal-
ity, or district shall be authorized to levy any tax
by virtue of the provisions of this article.
Remittances, how made: All remittances of
taxes imposed by this article shall be made to the
commissioner by bank draft, check, cashier's
check, money order, or money, who shall issue
his receipts therefor to the taxpayers, when re-
quested, and shall deposit daily all moneys re-
ceived to the credit of the state treasurer as re-
quired by law for other taxes: Provided, no
payment other than cash shall be final discharge
of liability for the tax herein assessed and levied
unless and until it has been paid in cash to the
commissioner.
The commissioner shall keep full and accurate
records of all moneys received by him, and how
disbursed; and shall preserve all returns filed
with him under this article for a period of three
years. (1937, c. 127, s. 420.)
§ 7880(1 56) v. Letters in report not to be di-
vulged.— Unless in accordance with the judicial
order or as herein provided, the state department
of revenue, its agents-, clerks or stenographers,
shall not divulge the gross income, gross pro-
ceeds of sales, or the amount of tax paid by any
person as shown by the reports filed under the
provisions of this article except to members and
employees of the state department of revenue,
and the income tax department thereof, for the
purpose of checking, comparing, and correcting
returns, or to the governor, or to the attorney
general, or any other legal representative of the
state in any action in respect to the amount of
tax due under the provisions of this article.
The secretary of state shall withhold the issu-
ance of any certificate of dissolution or with-
drawal in the case of any corporation organized
under the laws of this state, or organized under
the laws of another state and admitted to do
business in this state, until the receipt of a notice
from the commissioner to the effect that the tax
levied under this article against any such corpo-
ration has been paid, if any such corporation is a
taxpayer under the law, or until he shall be no-
[ 294 ]
§ 7880(156) w
TAXATION
§ 7880(156) CC
tified by the commissioner that the applicant is
not subject to pay a tax hereunder. (1937, c. 127,
s. 421.)
§ 7880 (1 56) w. Unlawful to refuse to make re-
turns; penalty. — It shall be unlawful for any per-
son to fail or refuse to make the return provided
to be made in this article, or to make any false
or fraudulent return or false statement in any
return of the tax, or any part thereof, imposed
by this article; or for any person to aid or abet
another in any attempt to evade the payment of
the tax, or any part thereof, imposed by this
article; or for the president, vice-president, sec-
retary, or treasurer of any company to make or
permit to be made for any company or associa-
tion any false return, or any false statement in
any return required by this article, with the intent
to evade the payment of any tax hereunder; or
for any person to fail or refuse to permit the ex-
amination of any book, paper, account, record,
or other data by the commissioner or his duly ap-
pointed agent, as required by this article, or to
fail or refuse to permit the inspection or appraisal
of any property by the commissioner or his duly
appointed agent, or to refuse to offer testimony
or produce any record as required in this article.
Any person violating any of the provisions of this
section shall be guilty of a misdemeanor, and on
conviction thereof shall be fined not more than
five hundred dollars ($500.00) or imprisoned not
exceeding six months, or punished by both such
fine and imprisonment, at the discretion of the
court within the limitations aforesaid. In addi-
tion to the foregoing penalties, any person who
shall knowingly swear to or verify any false or
fraudulent statement, with the intent aforesaid,
shall be guilty of the offense of perjury, and, on
conviction thereof, shall be punished in the man-
ner provided by law. Any company for which
a false return shall be made or a return contain-
ing a false statement as aforesaid, shall be guilty
of a misdemeanor, and may be punished by a fine
of not more than one thousand dollars ($1,000.00).
(1937, c. 127, s. 422.)
§ 7880 ( 156) x. Commissioner to make regula-
tions.— The commissioner shall from time to time
promulgate such rules and regulations not incon-
sistent with this article for making returns and
for the ascertainment, assessment, and collection
of the tax imposed hereunder as he may deem
necessary to enforce its provisions, and upon re-
quest shall furnish any taxpayer with a copy of
such rules and regulations. (1937, c 127, s. 423.)
§ 7880(156)y. Commissioner or agent may ex-
amine books, etc. — The commissioner, or his au-
thorized agents, may examine any books, papers,
records, or other data bearing upon the correct-
ness of any return, or for the purpose of mak-
ing a return where none has been made, as re-
quired by this article, and may require the
attendance of any person and take his testimony
with respect to any such matter, with power to
administer oaths to such person or persons. If
any person summoned as a witness shall fail to
obey any summons to appear before the commis-
sioner or his authorized agent, or shall refuse to
testify or answer any material question or to
produce any book, record, paper, or other data
when required to do so, such failure or refusal
shall be reported to the attorney general or the
district solicitor, who shall thereupon institute
proceedings in the superior court of the county
where such witness resides to compel obedience
to any summons of the commissioner, or his au-
thorized agent. Officers who serve summonses
or subpoenas, and witnesses attending, shall re-
ceive like compensation as officers and witnesses
in the superior courts, to be paid from the proper
appropriation for the administration of this arti-
cle. (1937, c. 127, s. 424.)
§ 7880(156)z. Excess payments; refund. — If
upon examination of any monthly return made
under this article it appears that an amount of
tax has been paid in excess of that properly due,
then the amount in excess shall be credited
against any tax or installment thereof then due
from the taxpayer, under any other subsequent
monthly return, or shall be refunded to the tax-
payer by certificate of over-payment issued by the
commissioner to the state auditor, which shall be
investigated and approved by the attorney gen-
eral, and the auditor shall issue his warrant on
the treasurer, which warrant shall be payable out
of any funds appropriated for that purpose. (1937,
c. 127, s. 425.)
§ 7880(156)aa. Prior rights or actions not af-
fected by this act. — Nothing in this act shall
affect or defeat any claim, assessment, ap-
peal, suit, right or cause of action for taxes due,
under the Revenue Act of one thousand nine
hundred thirty-five, prior to the date of which
this act becomes effective, whether such assess-
ment, appeal, suit, claim or action shall have been
begun before the date on which this act becomes
effective or shall thereafter be begun; and the
sections of the Revenue Act of one thousand nine
hundred thirty-five, amended or repealed by this
act, are expressly continued in full force, effect,
and operation for the purpose of the assessment
and collection of any taxes due under any such
laws prior to the date on which this act becomes
effective, and for the imposition of any penalties,
forfeitures, or claims for a failure to comply
therewith. (1937, c. 127, s. 426.)
§ 7880 ( 156) cc. To prevent unfair trade prac-
tices, commissioner of revenue may require tax
passed on to consumer. — In order that fair trade
practices may be encouraged and any deleterious
effect of the retail sales tax levy may be mini-
mized, the commissioner of revenue is empowered
and directed to devise, promulgate and enforce
regulations under which 'retail merchants shall
collect from the consumers, by rule uniform as
to classes of business, the sales tax levied upon
their business by the retail sales tax article:
Provided, that the commissioner of revenue shall
have the power to change the regulations and
methods under which the merchants shall collect
the tax from the consumers, from time to time,
as experience may prove expedient and advisable.
Methods for the passing on by merchants to
their customers the retail sales tax on sales to
said customers may include plans which require
both more and less than three (3%) per cent of
the sale price, the purpose being to enable the
merchants to collect approximately the amount
of three (3%) per cent on their total sales vol-
ume. The commissioner of revenue is hereby
authorized and empowered to make and adopt
[295]
§ 788G(156)dd
TAXATION
§ 7880(156)ee
rules and regulations requiring merchants to use
tokens or stamps, or other means, if found to be
practical, which may be determined by the com-
missioner, to provide a method whereby the
amount of tax collected by the merchant from
the customer shall be as nearly as possible three
per cent (3%) of each purchase. Such regula-
tions as herein authorized shall be promulgated
by the commissioner of revenue, to become effec-
tive after reasonable notice to the retail mer-
chants, and when so promulgated they shall have
the full force and effect of law. Any merchant
who violates such rules and regulations shall be
guilty of a misdemeanor and upon conviction
shall be fined not less than five ($5.00) dollars
nor more than five hundred ($500.00) dollars or
be imprisoned for not more than six months, or
be both fined and imprisoned in the discretion of
the court: Provided, however, that every such
violation shall be a separate offense hereunder.
It shall be the duty of the solicitors of the several
judicial districts of the state to prosecute viola-
tions of this section.
The provisions of this section shall not affect
in any manner the character or validity of the
sales tax levy as a merchants license tax, and they
may not be pleaded or considered in the event any
provision of the General Revenue Act is attacked
as unconstitutional. (1937, c. 233, ss. 1, 2.)
§ 7880(1 56) dd. Tax on building materials.—
There is hereby levied and there shall be col-
lected from every person, firm, or corporation, an
excise tax of three per cent of the purchase price
of all tangible personal property purchased or
used subsequent to June thirtieth, one thousand
nine hundred thirty-seven, which shall enter into
or become a part of any building or any other
kind of structure in this state, including all ma-
terials, supplies, fixtures and equipment of every
kind and description which shall be annexed
thereto or in any manner become a part thereof,
except rough and dressed lumber (but not mill
work), brick or hollow tile, sand, gravel, crushed
stone, rock and granite.
The provisions of this section shall not apply:
(a) In respect to the use of any such article
of tangible personal property, the sale or use of
which has already been subjected to a tax equal
to or in excess of that imposed by this section,
whether under the laws of this state or of some
other state or territory of the United States:
Provided, that if the tax imposed on the sale or
use of such tangible personal property imposed
by other laws on the sale or use of such property
is less than the tax imposed by this section, the
provisions of this section shall apply, but at a
rate measured by the difference between the rate
herein fixed and the rate by which the previous
tax upon the sale or use of such property was
computed: Provided, that the tax upon the use of
a single article of merchandise shall be limited as
provided in Schedule E, and shall not apply to
tangible personal property exempt from tax
and/or classified, when sold, as wholesale sales
under the provisions of Schedule E preceding
this section in Schedule E.
(b) In respect to such tangible personal prop-
erty as shall enter into any building or structure
erected or constructed under any contract with
the federal government or any of its agencies, or
with the state of North Carolina or any of its
agencies, or with any county or municipality in
North Carolina or any of their agencies.
Every person liable for the tax imposed by this
section shall report to the commissioner of rev-
enue and pay the taxes herein levied in accord-
ance with the provisions of Article V, Schedule
E, Emergency Revenue Act of one thousand nine
hundred thirty-seven, and in so far as the provi-
sions of said article are appropriate and not
inconsistent herewith, shall be liable for all pen-
alties and shall be subject to all of the provi-
sions of said article. The provisions of said arti-
cle relating to the administration of said Act,
auditing of returns and as to the authority and
powers of the commissioner to make rules and
regulations for the administration of this section,
shall be deemed and taken as a part of this sec-
tion. The definitions of terms, so far as may be
applicable to this section, contained in Article V,
shall be treated as definitions applicable to this
section.
The taxes levied in this section shall be levied
against the purchaser of the articles named. If
purchases of building materials that are not ex-
empt from tax are made by a contractor there
shall be joint liability for the tax against both
contractor and owner, but the liability of the
owner shall be satisfied if affidavit is required of
the contractor, and furnished by him, before fi-
nal settlement is made, showing that the tax
herein levied has been paid in full.
(c) A receipt given by a retail merchant main-
taining a place of business in this state, showing
thereon that the retail sales tax imposed by Arti-
cle V, Schedule E, will be paid by such retail
merchant on the articles of commerce included
within said purchase, shall be sufficient to relieve
the purchaser from further liability for tax im-
posed by this section: Provided further, that the
commissioner may by rule and regulation pro-
vide that a similar receipt from a retailer who
does not maintain a place of business in this state
shall also be sufficient to relieve the purchaser of
further liability for the tax to which such receipt
may refer.
The term "retail merchant" as used in this
sub-section shall include wholesalers, jobbers,
manufacturers, or their agents, selling taxable
building materials for use or consumption in this
state to others than merchants for resale. (1937,
c. 127, s. 427, c. 249, s. 4.)
Art. 5A. Schedule G. Gift Taxes
§ 7880(l56)ee. Gift taxes; classification of ben-
eficiaries; exemptions; rates of tax. — State gift
taxes, as hereinafter prescribed, are hereby levied
upon the shares of the respective beneficiaries in
all property within the jurisdiction of this state,
real, personal and mixed, and any interest therein
which shall in an}' one calendar year pass by gift
made after the effective date of this article.
The taxes shall apply whether the gift is in
trust or otherwise and whether the gift is direct
or indirect. In the case of a gift made by a non-
resident, the taxes shall apply only if the prop-
erty is within the jurisdiction of this state. The
taxes shall not apply to gifts made prior to the
effective date of this article.
The tax shall not apply to the passage of prop-
erty in trust where the power to revest in- the
[ 296 ]
§ 7880(156)ff
TAXATION
§ 7880(156)kk
donor title to such property is vested in the do-
nor, either alone or in conjunction with any per-
son not having substantial adverse interest in the
disposition of such property or the income there-
from, but the relinquishment or termination of
such power (other than by the donor's death)
shall be considered to be a passage from the do-
nor by gift of the property subject to such power,
and any payment of the income therefrom to a
beneficiary other than the donor shall be con-
sidered to be a passage b}r donor of such income
by gift.
The amount of tax on all gifts made taxable
under this article shall be based on the relation-
ship between the donor and donee, and graduated
in proportion to the amount of such gifts. The
rates of tax and exemptions shall be the rates set
out in sections 7880(3), 7880(4) and 7880(5), and
the same exemptions allowed in said sections to
gifts made in any one calendar year shall apply,
except that the exemption allowed to each child
of the donor shall be five thousand ($5,000.00)
dollars. Children of a deceased parent shall be
allowed collectively the same amount of exemp-
tion as a child of the donor. The total exemp-
tions that may be allowed under this section shall
not exceed eight times the exemption allowed for
a single year, and where two or more gifts are
made in excess of the exemption the tax shall be
calculated on the total amount of gifts in excess
of the exemption.
It is expressly provided, however, that so much
of such property as shall so pass exclusively for
state, county or municipal purposes, within this
state, or for charitable, educational or religious
purposes within this state, and so much of such
property as. shall so pass for the exclusive bene-
fit of any institution, association, or corporation in
this state, the property of which is exempt from
taxation by the laws of this state, shall be ex-
empt from any and all taxation under the provi-
sions of this article. (1937, c. 127, s. 600.)
§ 7880 ( 156) ff. Transfer for less than adequate
and full consideration. — Where property is trans-
ferred for less than an adequate and full consid-
eration in money or money's worth, then the
amount by which the value of the property ex-
ceeded the value of the consideration shall, for
the purpose of the tax imposed by this article,
be deemed a gift and shall be included in comput-
ing the amount of gifts made during the calendar
year. (1937, c. 127, s. 601.)
§ 7880 ( 156) gg. Gifts made in property. — If the
gift is made in property, the fair market value
thereof at the date of the gift shall be considered
the amount of the gift. (1937, c. 127, s. 602.)
§ 7880(156) hh. Manner of determining tax;
time of payment; application to department of
revenue for correction of assessment. — The tax
imposed by this article shall be paid by the donor
on or before the fifteenth day of March follow-
ing the close of the calendar year.
Report of the gifts shall be made by the donor
to the state department of revenue on blank
forms prepared by the state department of reve-
nue and furnished on application to any tax-
payer, and the amount of tax due shall be paid
at the time such report is made. The depart-
ment of revenue shall audit the returns made un-
der this article, and if it is found that the amount
of tax paid is less than the amount lawfully due
under the provisions of this article shall forward
a statement of the taxes determined to the person
or persons primarily chargeable with the pay-
ment thereof, such additional taxes- to be col-
lected under the same rules and regulations con-
tained in this act for the collection of other taxes,
and if an over-payment should be found to have
been made, a refund of such over-payment shall
be made to the taxpayer. Within one year after
the tax has been determined, any person ag-
grieved by the determination, may apply in writ-
ing to the department of revenue, which may
make such corrections of the taxes as it may de-
termine proper: Provided, however, that the re-
jection of the application in whole or in part by
the department of revenue shall not prevent any
person from applying to the court, as hereinafter
provided, for the correction of said taxes. (1937,
c. 127, s. 603.)
§ 7880(1 56) ii. Penalties and interest. — In any
case where a donor fails to file a return at the
proper time, the department of revenue shall as-
sess a penalty of ten per centum (10%) of the
tax determined by it, together with interest upon
such tax and penalty at the rate of six per
centum (6%) per annum from the date when such
report should have been filed until the date of
the assessment.
If any tax, or any assessment of tax, penalties
and interest, or any part thereof, be not paid
when due it shall bear interest at six per centum
(6%) per annum from the date of assessment
until paid. (1937, c. 127, s. 604.)
§ 7880 ( 156) jj. Lien for tax; collection of tax. —
The tax imposed by this article shall be a lien
upon all gifts that constitute the basis for the
tax for a period of ten years from the time they
are made. If the tax is not paid by the donor
when due, each donee shall be personally liable,
to the extent of their respective gifts, for so much
of the tax as may have been assessed, or may
be assessable thereon. Any part of the property
comprised in the gift that may have been sold
by the donee to a bona fide purchaser for an ade-
quate and full consideration in money or money's
worth shall be divested of the lien hereby imposed
and the lien, to the extent of the value of such
gift, shall attach to all the property of the donee
(including after-acquired property) except any
part sold to a bona fide purchaser for an adequate
and full consideration in money or money's
worth.
If the tax is not paid within thirty days after
it has become due, the department of revenue
may use any of the methods authorized in this
act for the collection of other taxes to enforce
the payment of taxes assessed under this article.
In any proceeding by warrant or otherwise to
enforce the collection of said tax, the donor shall
be liable for the full amount of the tax due by
reason of all the gifts constituting the basis for
such tax, and each donee shall be liable only for
so much of said tax as may be due on account of
his respective gift. (1937, c. 127, s. 605.)
§ 7880(156) kk. Period of limitation upon as-
sessment; assessment upon failure or refusal to
file proper return. — Except as provided in the
29;
§ 7880(156)11
TAXATION
§ 7880(156)pp
next succeeding paragraph the amount of taxes
imposed by this article shall be assessed within
three years after the return was filed.
In the case of a false or fraudulent return with
intent to evade tax or of a failure to file a return
the tax may be assessed at any time.
If a donor should fail or refuse on demand to
file a correct and proper return as required by
this article, the department of revenue may make
an estimate of the amount of taxes due the state
by such donor, and by the respective donees, from
any information in its possession, and assess the
taxes, penalties and interest due the state by such
taxpayers. (1937, c. 127, s. 606.)
§ 7880(156)11. Tax to be assessed upon actual
value of property; manner of determining value
of annuities, life estates and interests less than
absolute interest. — Said taxes shall be assessed
upon the actual value of the property at the time
of the transfer by gift. In every case where
there shall be a gift to take effect in possession
or enjoyment after the expiration of one or more
life estates, or at any time in the future, the tax
shall be assessed on the actual value of the prop-
erty or the interest of the beneficiary therein at
the time when he or she becomes entitled to the
same in possession or enjoyment. The value of
an annuity or a life interest in such property, or
any interest therein less than an absolute inter-
est, shall be determined by the annuity tables,
provided for by section one thousand seven hun-
dred and ninety-one of Consolidated Statutes. In
every case in which it is impossible to compute
the present value of any interest in property so
passing, the department of revenue may effect
such settlement of the tax as it shall deem to be
for the best interest of the state, and payment of
the same so agreed upon shall be a full satisfac-
tion of such taxes. (1937, c. 127, s. 607.)
§ 7880(1 56) mm. Application for relief from
taxes assessed; appeal. — A taxpayer may apply to
the commissioner of revenue for revision of the
tax assessed against him at any time within three
years from the time of the filing of the return or
from the date of the notice of assessment of any
additional tax. The commissioner shall grant a
hearing thereon, and if upon such hearing he
shall determine that the tax is excessive or in-
correct, he shall resettle the same according to
the law and the facts, and adjust the computa-
tion of tax accordingly. The commissioner shall
notify the taxpayer of his determination, and
shall refund to the taxpayer the amount, if any,
paid in excess of the tax found by him to be due.
The taxpayer shall have the right of appeal from
any assessment made by the commissioner of rev-
enue in the same manner and form as set out in
section 7880(156) with respect to income taxes.
(1937, c. 127, s. 608.)
§ 7880(156)nn. Returns; time of filing; exten-
sion of time for filing. — Any person who within
the calendar year nineteen hundred and thirty-
seven, after the effective date of this article, or
any calendar year thereafter, makes any gift or
gifts taxed by this article, shall report in dupli-
cate, under oath, to the department of revenue,
on forms provided for that purpose, showing
therein an itemized schedule of all such gifts, the
name and residence of each donee and the actual
value of the gift to each, the relationship of each
of such persons to the donor and any other infor-
mation which the department of revenue may re-
quire. Such returns shall be filed on or before
the fifteenth day of March following the close of
the calendar year. The department of revenue
may grant a reasonable extension of time for fil-
ng a report whenever in its judgment good cause
exists. (1937,
127, s. 609.)
Art. 5B. Schedule H. Intangible
Personal Property
§ 7880(156)oo. Intangible personal property. —
Taxes levied in this article for the maintenance
of the public schools of the state, under author-
ity of section six, Article V, of the Constitution.
Intangible personal properties defined and
classified by this chapter, with the exceptions
hereinafter made, are hereby segregated for ex-
clusive state taxation after the year one thousand
nine hundred thirty-seven and at the same time
stated in this article and shall be taxed as herein-
after provided. Nothing herein contained shall
affect the taxability of those subjects of taxation
in the year one thousand nine hundred thirty-
seven nor the listing of same for the year one
thousand nine hundred thirty-seven in the man-
ner provided in the Machinery Act. (1937, c.
127, s. 700.)
§ 7880(156)pp. Bank deposits. — All money on
deposit with any commercial, industrial, savings
bank or trust company or other corporation do-
ing a banking business, including certificates of
deposit of any such bank, trust company or other
corporation doing a banking business, and postal
savings deposits, whether such money be actually
in or out of this state, and belonging to or held
in trust for a resident of this state, and including
non-residents having a business situs in this
state, shall be subject to an annual tax, which is
hereby levied, of ten cents (10c) on every one
hundred dollars ($100.00) of the actual value
thereof without deduction for any indebtedness
or liabilities of the taxpayer. For the purpose of
determining the amount of deposits subject to
this tax, every such commercial, industrial or sav-
ings bank, trust company or other corporation
doing a banking business shall set up the credit
balance of each depositor on the fifteenth day of
each September, December, March and June in
the calendar year, and the average of such quar-
terly credit balances shall constitute the amount
of deposit of each depositor subject to the tax
levied in this section. The tax herein levied shall
not apply to deposits by one bank in another
bank, nor to deposits by federal, state or local
governments, or agencies of such governmental
units. Accounts showing average quarterly bal-
ances for the year of less than one hundred dol-
lars ($100.00) shall be disregarded.
The taxes assessed upon bank deposits in this
section shall be paid by the cashier, secretary,
treasurer or other officer or officers of every such
commercial, industrial, savings bank, trust com-
pany or other corporation doing a banking busi-
ness by report and payment to the state depart-
ment of revenue on March fifteenth, one thou-
sand nine hundred thirty-eight, for the previous
calendar year, and annually thereafter. As agent
for the depositor any taxes so paid on such de-
[ 298
$ 7880(156)ppl
TAXATION
§ 7880(1 5-6) tt
posits shall be recovered from the owners there-
of by such commercial, industrial, savings bank,
trust company or other corporation doing a bank-
ing business, and shall be deducted from the ac-
count of the depositor on December thirty-first,
one thousand nine hundred thirty-seven, and an-
nually thereafter or on such date after the thirty-
first day of December as in the ordinary course
of business it becomes convenient to' make such
charge. The tax on deposits represented by time
certificates that have been transferred to another
holder shall be chargeable to the original depos-
itor unless such depositor has given notice to the
tank of transfer of such certificate of deposit.
Accounts that have been closed during the year,
leaving no credit balance against which the tax
can be charged may be reported separately to
the department of revenue, and shall then be-
come a charge directly against the depositor for
the amount of tax levied herein, and such tax
may be collected by the department of revenue
from the depositor with the same remedies to
enforce payment provided in this act to enforce
the payment of other taxes levied in this act, but
the depositor bank, company or corporation
shall not be liable for the payment thereof, and
shall then become a charge directly against the
depositor for the amount of tax levied herein,
and such tax may be collected by the department
of revenue from the depositor with the same
remedies to enforce payment provided in this act
to enforce the payment of other taxes levied in
this act. (1937, c. 127, s. 701.)
§ 7880(156)ppl. Department of revenue au-
thorized to relieve banks of duty of collecting tax
on intangibles, held by clerks of courts. — Banks
now charged with the duty of collecting tax on
intangibles which are held by the clerks of the
courts of North Carolina, whether on deposit or
otherwise, in a fiduciary capacity, levied under
Schedule H of the one thousand nine hundred
and thirty-seven Revenue Act [§ 7880(156)oo et
seq.], shall be relieved of the duty of collecting
said tax when so authorized by the revenue de-
partment of the state of North Carolina by cer-
tificate based upon the application of any clerk
of any court of the state of North Carolina.
The various clerks of the courts of the state of
North Carolina shall keep a record of, compute,
collect, and remit the tax on such intangibles to
the commissioner of revenue, as provided in
Schedule H of the one thousand nine hundred and
thirty-seven Revenue Act.
The various clerks of the courts of the state shall
be held liable under their official bonds for the
collection and payment to the commissioner of
revenue of the tax levied under Schedule H of the
one thousand nine hundred and thirty-seven Rev-
enue Act. (1937, c. 229, ss. 1-3.)
§ 7880(1 56) qq. Money on hand. — All money on
hand on December thirty-first, one thousand nine
hundred thirty-seven, and annually thereafter, held
by any resident of this state, personal or corpo-
rate, and including non-residents having a busi-
ness situs in this state, as defined in this article,
shall be subject to a tax that is hereby annually
levied of twenty cents (20c) on every one hun-
dred dollars ($100.00) of the amount of such
money on hand in excess of three hundred dol-
lars ($300.00). (1937, c. 127, s. 702.)
[ 299
§ 7880(156)rr. Accounts receivable. — All ac-
counts receivable of every resident of this state,
personal and corporate, held on December thirty-
first, one thousand nine hundred thirty-seven, and
annually thereafter, in excess of current bills pay-
able, and not including in bills payable indebted-
ness on account of capital outlay, shall be subject
to a tax, which is hereby annually levied, of
twenty-five cents (25c) on every one hundred dol-
lars ($100.00) of the face value of the excess of
accounts receivable above current accounts and
bills payable, and in excess of three hundred dol-
lars ($300.00) of the net amount of such accounts.
(1937, c. 127, s. 703.)
§ 7880(1 56) ss. Matured insurance policies;
funds held by fiduciaries. — All sums left on de-
posit with insurance companies by a resident of
this state, the principal of which is subject to
withdrawal at the option of the party or parties
entitled to receive it after stipulated notice, or
evidences of debt by building and loan associa-
tions other than obligations to and on account of
shares of stock to shareholders taxable under
section 7880(69) and belonging to a resident of
this state, and/or money held as trust funds by
clerks of superior courts, executors, administra-
tors, trustees, or other fiduciaries shall be subject
to a tax, which is hereby annually levied, of
twenty-five cents (25c) on every one hundred
dollars ($100.00) of the amount of such obliga-
tions. Taxes under this section are levied as of
December thirty-first, one thousand nine hun-
dred thirty-seven, and annually thereafter. So
much of funds held by clerks of superior courts,
executors, administrators, trustees or other fidu-
ciaries as are on deposit in a bank in this state
and taxable under section 7880(156)pp shall be
exempt from the tax levied in this section.
All insurance companies and building and loan
associations doing business in this state, clerks of
superior courts, executors, administrators, trus-
tees or other fiduciaries shall report to the de-
partment of revenue on March fifteenth, one thou-
sand nine hundred thirty-eight, and annually
thereafter, all sums in their charge that are made
taxable under this section and pay the tax on
such sums. All such insurance companies, build-
ing and loan associations, clerks of superior
courts, executors, administrators, trustees or other
fiduciaries shall recover from the owners there-
of the amount of taxes so paid by a charge against
the account of the depositor which shall be made
on December thirty-first, one thousand nine hun-
dred thirty-seven, and annually thereafter, or at
such other time as in the ordinary course of busi-
ness may be convenient, or by deduction, with in-
terest, from any dividends or distribution that
may thereafter be made.
The taxes levied under this section on building
and loan associations shall not apply to loans
made to such associations by federal home loan
banks or other banks. (1937, c. 127, s. 704.)
§ 7880(156)tt. Bonds, notes, and other evi-
dences of debt. — All bonds (except bonds or ob-
ligations, direct or indirect, of the United States,
bonds of the state of North Carolina, and bonds
of counties, cities, and towns, or other political
sub-divisions of this state), notes, and other evi-
dences of debt, including bonds of states other
than North Carolina, bonds of counties, cities,
§ 7880(156)uu
TAXATION
§ 7880(156) ww
and towns located outside of the state of North
Carolina, bonds of railroad, industrial, commercial
and other corporations, bonds of individuals, and
all demands and claims, however evidenced,
whether secured by mortgage, deed of trust, judg-
ment or otherwise, or not so secured, but not
including current accounts receivable, and be-
longing to a resident of this state on December
thirty-first, one thousand nine hundred thirty-
seven and annually thereafter, shall be subject to
a tax, which is hereby levied, of forty cents (40c)
on every one hundred dollars ($100.00) of the
fair market value thereof, in excess of three hun-
dred dollars ($300.00) in value of such securities.
Evidences of debt owing by the taxpayer, or if
reported by an agent of the owner of such se-
curities owing by such owner, other than current
accounts payable, taxable under section 7880-
(156) rr, may be deducted from the value of secu-
rities taxable under this section. The evidences
of debt taxable under this section shall not ap-
ply to building and loan associations, banks, or
insurance companies. If evidences of debt are
held by a subsidiary corporation, the indebted-
ness that may be deducted from such evidences
of debt shall be the proportion of indebtedness
of the parent corporation which such indebted-
ness bears to the total assets of the parent cor-
poration. The term "subsidiary corporation" as
used in this section shall mean any corporation
more than fifty per cent (50%) of the stock of
which is held by another corporation.
If such securities are reported by or in behalf
of the corporation owning securities, both within
and without the state of North Carolina, such
evidences of debt may be deducted only in the
proportion which the value of the securities taxa-
ble under this section bears to the total value of
the securities owned by the corporation.
In every action or suit in any court for the col-
lection of any bonds, notes or other evidences of
debt, the plaintiff shall be required to allege in
his pleadings or to prove at any time before final
judgment is entered, (1) that such bonds, notes
or other evidences of debt have been assessed
for taxation for each and every tax year, under
the provisions of this article, during which he was
the owner of same, not exceeding five years
prior to that in which the suit or action is
brought; or (2) that such bonds, notes or other
evidences of debt constituted a part of the capi-
tal employed in the business of such taxpayer
and were taxed as such; or (3) that the suitor has
not paid, or is unable to pay the taxes and penal-
ties, but is willing for the same to be paid out of
the first recovery on the evidence of debt; or (4)
that the bond, note or other evidence of debt sued
upon is not taxable hereunder in the hands of the
plaintiff.
But the title to real estate heretofore or here-
after sold under a deed of trust shall not be drawn
in question upon the ground that the holder of
the notes secured by such deed of trust did not
list the same for taxation.
When in any action at law or suit in equity
it is ascertained that there are unpaid taxes and
penalties on the evidence of debt sought to be
enforced, and the suitor makes it appear to the
court that he has not paid or is unable to pay
these taxes and penalty, but is willing for the
same to be paid out of the first recovery on the
evidence of debt, the court shall have authority
to enter as a part of any judgment or decretal or-
der in said proceedings that the amount of taxes
and penalty due and owing shall be paid to the
proper officer out of the first collection on said
judgment or decree. (1937, c. 127, s. 705.)
§ 7880(1 56) uu. Shares of stock.— All shares of
stock of corporations or joint stock companies
held by residents of this state, except stock in
such corporations as pay a franchise and prop-
erty tax in this state, and the tax upon the pro-
portionate part of their income earned in this
state as determined under section 7880(128), and
except stock in banks, banking associations, trust
companies, insurance companies, and building and
loan associations which are otherwise taxed shall
be subject to a tax, which is hereby annually
levied, of thirty cents (30c) on every one hundred
dollars ($100.00) of the fair market value there-
of as of December thirty-first, one thousand nine
hundred thirty-seven, and annually thereafter, in
excess of three hundred dollars ($300.00). In-
debtedness incurred directly for the purchase of
shares of stock, and for the payment of which
the stock is pledged as collateral," may be de-
ducted from the total value of such shares. (1937,
c. 127, s. 706.)
§ 7880(156)vv. Taxes due and payable.— All
taxes levied in this article shall be due and pay-
able on the fifteenth day of March, one thousand
nine hundred thirty-eight, and annually there-
after, with respect to tax liability that shall ac-
crue under each section of this article, on intan-
gibles owned by the taxpayer on the thirty-first
clay of December next preceding. Every person,
firm, or corporation liable for a tax levied under
this article, either as principal or agent, shall
make report of such tax liability to the state de-
partment of revenue on March fifteenth, one thou-
sand nine hundred thirty-eight, and annually there-
after, and shall pay the amount of tax due at the
time of making such report. All such reports
shall be subject to all the rules and regulations,
in so far as they apply, set out in Article IV,
Schedule D, of this act [§ 7880(124) et seq.], with
respect to income taxes and including the obliga-
tion of the department of revenue to audit such
reports with respect to under or over-payment;
shall be subject to the same penalties for delay
or failure to make reports; to the same rights of
the department of revenue to investigate the
books and records of any taxpayer, or agent of
the taxpayer, and shall be subject to hearings and
appeals in all respects as provided for income
taxes in Article IV, Schedule D, of this act.
(1937, c. 127, s. 707.)
§ 7880(156) ww. Non-residents. — Every non-
resident person, every foreign corporation, and
every partnership, consisting in whole or in part
of non-resident persons doing business in this
state, is hereby declared to have a domicile with-
in this state, and so much of the notes, mortgages,
accounts receivable, and bank deposits of such
non-resident in excess of current bills payable and
evidences of debt acquired in the conduct of and
as a part of the business carried on in this state,
shall be reported by and taxed to such person,
firm, or corporation, in the same manner and to
[ 300]
§ 7880 (156) xx
TAXATION
§ 7880(156)ddd
the same extent as if such person, firm, or cor-
poration were a resident of this state.
A resident of this state having an established
business in another state shall not be taxable in
this state on intangibles located in and incident to
the conduct of the business located in another
state. (1937, c. 127, s. 708.)
§ 7880 (156) xx. Moneyed capital coming into
competition with the business of national banks. —
All moneyed capital coming into competition
with the business of national banks: Provided,
that bonds, notes or other evidences of indebted-
ness in the hands of individual citizens not em-
ployed or engaged in the banking or investment
business and representing merely personal invest-
ments not made in competition with such busi-
ness shall not be deemed moneyed capital with-
in the meaning of this section.
On all moneyed capital defined by this section
there is hereby annually levied a tax at the same
rate as is assessed upon the shares of national
banks located in this state at the place of resi-
dence of such national banks, l<*ss deduction on
real estate otherwise taxed in this state, to the
same extent and under the same corresponding
conditions as this deduction is allowed in the as-
sessment of such shares of national banks located
in this state. (1937, c. 127, s. 709.)
§ 7880 ( 156) yy. Conversion of intangible per-
sonal property to evade taxation not to defeat as-
sessment and collection of proper taxes. — Any
person, firm, or corporation who shall, for the
purpose of evading taxation under the laws of
this state, within thirty days prior to the first day
of any tax year, either directly or indirectly, con-
vert any intangible personal property taxable un-
der the laws of this state, or with like intent shall,
either directly or indirectly, convert such intan-
gible personal property into a form of property
which is taxable by this state at a lower rate than
the intangible personal property so> converted,
shall be taxable on such intangible personal prop-
erty as if such conversion had not taken place, and
the fact that such person, firm, or corporation
within thirty days after the first day of the tax
year, either directly or indirectly, converts such
property non-taxable by this state or taxable at
the lower rate by this state into intangible per-
sonal property taxable at the higher rate shall be
prima facie evidence of intent to evade taxation
by this state, and the burden of proof shall be
upon such person, firm, or corporation to show
that the first conversion was for a bona fide pur-
pose of investment, and not for the purpose of
evading taxation by this state. (1937, c. 127, s.
710.)
§ 7880(156)zz. Forms for report.— The depart-
ment of revenue shall prepare appropriate forms
for reports to be made under the several sections
of this article, and such forms shall be furnished
taxpayers upon application or distributed in the
same manner as blank forms for income tax re-
turns. To the extent that the department of rev-
enue may find it expedient to do so, forms for re-
ports required to be made under the several sec-
tions of this article may be combined with the
forms of income tax returns. (1937, c. 127, s.
711.)
§ 7880(1 56) aaa. Protection for taxpayers mak-
[ 30
ing complete return. — Taxpayers making a com-
plete return on March fifteenth, one thousand
nine hundred thirty-eight, and annually there-
after, of all their holdings of intangible personal
property under this article shall not thereafter be
held liable for failure to list such intangible prop-
erty in previous years, and the taxes levied in this
article shall be in lieu of all other property taxes
on such intangible personal property, from and
after March fifteenth, one thousand nine hundred
thirty-eight. (1937, c. 127, s, 712.)
§ 7880(l56)bbb. Penalties.— All penalties lev-
ied in Article IV of this act [§ 7880(124) et seq.]
with respect to report and payment of income
taxes shall apply to taxes levied in this article,
and in addition thereto the penalty for failure to
report intangibles taxable under this article shall
be subject to a penalty of one hundred per cent
(100%) of the amount of the tax. (1937, c. 127,
s. 713.)
§ 7880(156)ccc. Institutions exempted. — None of
the taxes levied in this article shall apply to re-
ligious, educational, charitable or benevolent or-
ganizations not conducted for profit, nor (except
sections 7880(156)pp and 7880(156)ss to life in-
surance companies reporting premiums to the in-
surance commissioner and paying a tax thereon
under section 7880(116), nor (except section
7880(156)pp) to the purchase of securities held
as a separate fund by a trustee and representing
the proceeds of life insurance policies matured by
the death of the insured where the beneficiaries
do not have power to withdraw principal until the
happening of a future event, nor (except section
7880(156) ss) to building and loan associations
paying a tax under section 7880(69), nor to evi-
dences of debt held by commercial, industrial or
savings banks and trust companies representing
investment of funds held on deposit. (1937, c. 127,
s. 714, c. 249, s. 18.)
§ 7880(156) ddd. Separate record by counties;
reports to state board of assessment; distribution
to counties and cities. — The commissioner of rev-
enue shall keep a separate record by counties of
taxes collected under this article, and shall not
later than the tenth day of July in one thousand
nine hundred thirty-eight, and annually thereafter,
submit to the state board of assessment an ac-
curate account of taxes collected under these sec-
tions, showing separately the amounts collected
in each county of the state. The state board of
assessment shall examine such reports and, if
found to be correct, shall certify a copy of same
to the state auditor and state treasurer. Fifty per
cent (50%) of the total amount of such revenue
shall be distributed to the counties and cities of
the state on the following basis:
The amount distributable to each county and
to the municipalities therein from the revenue
collected under sections 7880(156)qq, 7880(156)rr,
7880(156)tt and 7880(156)uu shall be determined
upon the basis of the amounts collected in each
county. The amount distributable to each county
and municipalities therein from the revenue col-
lected under sections 7880(156)pp and 7880(156)ss
shall be determined upon the basis of population
in each county as shown by the latest federal
decennial census. The amounts so allocated to
each county shall in turn be divided between the
1]
§ 7880(156)eee
TAXATION
§ 7880(160)
county and all municipalities therein in proportion
to the total amount of ad valorem taxes levied
by each on real and tangible personal property
during the fiscal year preceding such distribu-
tion. Upon certification by the state board of
assessment of the allocations herein provided for,
it shall be the duty of the state auditor to issue
a warrant on the state treasurer to the treasurer
or other officer of each such county and munici-
pality authorized to receive public funds in the
amount so allocated to each such county and mu-
nicipality. It shall be the duty of each such
county and municipality to report to the state
board of assessment such information as it may
request for its guidance in making said allot-
ments; and upon failure of any such county or
municipality to make such report within the time
prescribed by said state board of assessment, said
board may disregard said defaulting unit in mak-
ing said allotments.
The amounts distributed to the counties and
cities of the state shall be used for the payment of
principal or interest on indebtedness or expenses
incurred on account of providing facilities and
equipment necessary for the maintenance of the
constitutional six months public school term.
(1937, c. 127, s. 715.)
§ 7880 ( 156) eee. Provision for administration. —
For the efficient administration of this article an
appropriation is hereby made for the use of the
department of revenue, in addition to the appro-
priation in the Appropriation Bill of a sum equal
to four per cent (4%) of the total revenues col-
lected under this article to be expended under
allotments made by the director of the budget
of such part of the whole appropriation as may be
found necessary for the administration of this ar-
ticle.
The director of the budget may make estimates
of the yield of revenue under this article and make
advance appropriations based upon such estimate
and to provide for the necessary expense of pro-
viding materials, supplies and other needful ex-
penses to be incurred prior to the actual collec-
tion of taxes made under and by virtue of this
article.
The director of the budget may make such ad-
vance allotments from such estimates of revenue
yield as he may find proper for the convenient
and efficient administration of this article.
Out of the amounts which may become due
and payable to the counties and cities there shall
be deducted the proportionate cost of collection,
enforcement and administration the percentage
and cost as determined by the director of the
budget. (1937, c. 127, s. 716.)
Art. 6. Schedule I. General Administration —
Penalties
§ 7880(157). Failure of a firm, corporation,
public utility and/or public service corporation to
file report. — If any person, firm, or corporation
required to file a report under any of the pro-
visions of Schedules B and C of this act [§
7880(30) et seq.] fails, refuses, or neglects to
make such report as required herein within the
time limited in said schedules for making such
report he or it shall pay a penalty of ten dollars
($10.00) for each day's omission. (1937, c. 127,
s. 800.)
§ 7880(158). Charter canceled for failure to re-
port.— If a corporation required by the provisions
of this act to file any report or return or to pay
any tax or fee, either as a public utility (not as
an agency of interstate commerce) or as a cor-
poration incorporated under the laws of this state,,
or as a foreign corporation domesticated in or
doing business in this state, or owning and using
a part or all of its capital or plant in this state,
fails or neglects to make any such report or re-
turn or to pay any such tax or fee for ninety
days after the time prescribed in this act for mak-
ing such report or return, or for paying such
tax or fee, the commissioner of revenue shall cer-
tify such fact to the secretary of state. The sec-
retary of state shall thereupon suspend the articles
of incorporation of any such corporation which
is incorporated under the laws of this state by
appropriate entry upon the records of his office,
or suspend the certificate of authority of any such
foreign corporation to do business in this state
by proper entry. Thereupon all the powers, priv-
ileges, and franchises conferred upon such cor-
poration by such articles of incorporation or by
such certificate of authority shall cease and deter-
mine. The secretary of state shall immediately
notify by registered mail such domestic or for-
eign corporation of the action taken by him, and
also shall immediately certify such suspension to
the clerk of superior court of the county in which
the principal office or place of business of such
corporation is located in this state. The clerk
of superior court shall thereupon make appropri-
ate entry upon the records of his office indicating
suspension of the corporate powers of the cor-
poration in question. Provided, that such can-
cellation of charter as hereinbefore provided shall
not be effective as to parties dealing with said
corporation without actual notice thereof until a
copy of such cancellation shall be filed in the
office of the clerk of the superior court of the
county in which said corporation has its principal
office in this state.
Clerks of the superior court may charge fifty
(50c.) cents for filing such certificate of cancel-
lation, collectible from such corporation when a
certificate of restoration as provided for in sec-
tion 7880(160) is filed with said clerk of superior
court. (1937, c. 127, s. 801, c. 215.)
Editor's Note. — Public Laws 1937, c. 215, adding the
proviso and the last sentence to this section purports to
amend same section in the original Code as codified from
Public Laws 1935.
§ 7880(159). Penalty for exercising corporate
functions after cancellation or suspension of
charter. — Any person, persons or corporation who
shall exercise or attempt to exercise any powers,
privileges, or franchises under articles of incorpo-
ration or certificate of authority after the same
are suspended, as provided in any section of this
act, shall pay a penalty of not less than one hun-
dred dollars ($100.00) nor more than one thou-
sand dollars ($1,000.00), to be recovered in an
action to be brought by the commissioner of
revenue in the superior court of Wake county.
Any corporate act performed or attempted to be
performed during the period of such suspension
shall be invalid and of no effect. (1937, c. 127,
s. 802.)
§ 7880(160). Corporate rights restored. — Any
302
« 7880(161)
TAXATION
§ 7880(168)
corporation whose articles of incorporation or cer-
tificate of authority to do business in this state
have been suspended by the secretary of state, as
provided in section 7880(158), or similar provi-
sions of prior Revenue Act, upon the filing, within
ten years after such suspension of cancellation
under previous acts, with the secretary of state,
of a certificate from the commissioner of reve-
nue that it has complied with all the require-
ments of this act and paid all state taxes, fees,
or penalties due from it, and upon payment to
the commissioner of revenue to be transferred to
the secretary of state an additional penalty of ten
dollars ($10.00) to cover cost of reinstatement,
shall be entitled to exercise again its rights, priv-
ileges, and franchises in this state; and the sec-
retary of state shall cancel the entry made by
him under the provisions of section 7880(158) or
similar provisions of prior Revenue Acts, and
shall issue his certificate entitling such corpora-
tion to exercise again its rights, privileges, and
franchises, and certify such reinstatement to the
clerk of superior court in the county in which the
principal office or place of business of such cor-
poration is located, and he shall cancel from his
records the entry showing suspension of cor-
porate privileges. (1937, c. 127, s. 803.)
§ 7880(161). Officers, agents, and employees;
misdemeanor failing to comply with tax law. — If
any officer, agent, and/or employee of any per-
son, firm, or corporation subject to the provi-
sions of this act shall wilfully fail, refuse, or
neglect to make out, file, and/or deliver any re-
ports or blanks, as required by such law, or to
answer any question therein propounded, or to
knowingly and wilfully give a false answer to any
such question wherein the fact inquired of is
within his knowledge, or upon proper demand to
exhibit to such commissioner of revenue or any
person duly authorized by such commissioner
any book, paper, account, record, memorandum
of such person, firm, or corporation in his pos-
session and/or under his control, he shall be guilty
of a misdemeanor and fined not less than one
hundred dollars ($100.00) nor more than one
thousand dollars ($1,000.00) for each offense.
(1937, c. 127, s. 804.)
§ 7880(162). Aiding and/or abetting officers,
agents, or employees in violation of this act a
misdemeanor. — If any person, firm, or corpora-
tion shall aid, abet, direct, cause or procure any
of his or its officers, agents, or employees to vio-
late any of the provisions of this act, he or it shall
be guilty of a misdemeanor, and fined not less
than one hundred dollars ($100.00) nor more than
one thousand dollars ($1,000.00) for each offense.
(1937, c. 127, s. 805.)
§ 7880(163). Each day's failure a separate of-
fense.— Every day during which any person, firm,
or corporation subject to the provisions of this
act, or any officer, agent, or employee thereof,
shall wilfully fail, refuse, or neglect to observe
and comply with any order, direction, or man-
date of the commissioner of revenue, or to per-
form any duty enjoined by this act, shall consti-
tute a separate and distinct offense. (1937, c.
127, s. 806.)
§ 7880(164). Penalty for bad checks.— When
any uncertified check is tendered in payment of
any obligation to the department of revenue, and
such check shall have been returned to the of-
fice of the commissioner of revenue unpaid on
account of insufficient funds of the drawer of said
check in the bank upon which same is drawn,
then and in that event an additional tax shall be
imposed equal to ten per cent (10%) of the tax
due; and in no case shall the increase of said tax
because of such failure be less than one dollar
($1.00) nor exceeding two hundred dollars
($200.00), and the said additional tax shall not be
waived or diminished by the commissioner of rev-
enue. This section shall also apply to all taxes
levied or assessed by the state. (1937, c. 127, s.
807.)
§ 7880(165). Discretion of commissioner over
penalties. — The commissioner of revenue shall
have power, upon making a record of his rea-
sons therefor, to reduce or waive any penalties
provided for in this act, except the penalty pro-
vided in section 7880(164) relating to unpaid
checks. (1937, c. 127, s. 808.)
Remedies
§ 7880(166). Tax a debt. — Every tax imposed
by this act, and all increases, interest, and penal-
ties thereon, shall become, from the time it is due
and payable, a debt from the person, firm, or cor-
poration liable to pay the same to the state of
North Carolina. (1937, c. 127, s. 809.)
§ 7880(167). Action for recovery of taxes. — Ac-
tion may be brought at any time and in any court
of competent jurisdiction in this state or other
state, in the name of the state and at the instance
of the commissioner of revenue, to recover the
amount of any taxes, penalties, and interest due
under this act. This remedy is in addition to all
other remedies for the collection of said taxes
and shall not in any respect abridge the same.
Any judgment shall be declared to have such pref-
erence and priority against the property of the
defendant as is provided by law for taxes levied
by this act, and free from any claims for home-
stead or personal property exemption of the de-
fendant therein. (1937, c. 127, s. 810.)
§ 7880(168). Tax upon settlement of fiduciary's
account. — 1. No final account of a fiduciary shall
be allowed by the probate court unless such ac-
count shows, and the judge of said court finds,
that all taxes imposed by the provisions of this
act upon said fiduciary, which have become pay-
able, have been paid, and that all taxes which
may become due are secured by bond, deposit, or
otherwise. The certificate of the commissioner
of revenue and the receipt for the amount of tax
herein certified shall be conclusive as to the pay-
ment of the tax to the extent of said certificate.
2. For the purpose of facilitating the settlement
and distribution of estates held by fiduciaries, the
commissioner of revenue, with the approval of
the attorney general, may, on behalf of the state,
agree upon the amount of taxes at any time due
or to become due from such fiduciaries under the
provisions of this act, and the payment in accord-
ance with such agreement shall be full satisfaction
of the taxes to which the agreement relates.
(1937, c. 127, s. 811.)
[ 303
§ 7880(l68)a
TAXATION
§ 7880(171)
§ 7880 (168) a. Lien of state taxes.— The taxes
imposed by this act shall constitute a lien upon
the real estate of all persons, firms, corporations,
or concerns chargeable with the tax, located
within this state.
In the settlement of the estate of any decedent
where by any order of court, or other proceed-
ing, the real estate of the decedent has been sold
to make assets to pay debts, such sale shall not
have the effect of extinguishing the lien upon the
land so sold for state taxes, nor shall the same be
postponed in any manner to the payment of any
other claim or debt against the estate, save fun-
eral expenses and cost of administration.
Whenever the property of any taxpayer liable
to any tax imposed by this act or under its au-
thority shall be taken into receivership, the lien
of the taxes upon the real estate shall not thereby
be in any manner disturbed, and the personal
property of the taxpayer liable to said tax upon
which there is no prior specific lien shall be sub-
ject to a lien for the taxes imposed by this act, or
under its authority, from the time the receiver-
ship went into effect, subject to prior payment of
costs of the receivership only.
The provisions of this section shall not have
the effect of releasing any lien for state taxes im-
posed by other law, nor shall they have the effect
of postponing the payment of the said state taxes
or depriving the said state taxes of any priority in
order of payment provided in any other statute
under which payment of the said taxes may be
required. (1937, c. 127, s. 811^.)
§ 7880(169). Warrant for the collection of taxes.
— If any tax imposed by this act, or any other tax
levied by the state and payable to the commis-
sioner of revenue, or any portion of such tax be
not paid within thirty days after the same becomes
due and payable, and after the same has been as-
sessed, the commissioner of revenue shall issue an
order under his hand and official seal, directed to
the sheriff of any county of the state, command-
ing him to levy upon and sell the real and per-
sonal property of the taxpayer found within his
county for the payment of the amount thereof,
with the added penalties, additional taxes, interest,
and cost of executing the same, and to return to
the commissioner of revenue the money collected
by virtue thereof by a time to be therein specified,
not less than sixty days from the date of the or-
der. The said sheriff shall, thereupon, proceed
upon the same in all respects with like effect and
in the same manner prescribed by law in respect
to executions issued against property upon judg-
ments of a court of record, and shall be entitled
to the same fees for his services in executing the
order, to be collected in the same manner.
In addition to the remedy herein provided, the
commissioner of revenue is authorized and em-
powered to make a certificate setting forth the es-
sential particulars relating to the said tax, includ-
ing the amount thereof, the date when the same
was due and payable, the person, firm, or corpo-
ration chargeable therewith, and the nature of the
tax, and under his hand and seal transmit the
same to the clerk of the superior court of any
county in which the delinquent taxpayer resides
or has property; whereupon, it shall be the duty
of the clerk of the superior court of the county to
docket the said certificate and index the same on
the cross-index of judgments, and execution may
issue thereon with the same force and effect as an
execution upon any other judgment of the supe-
rior court; said tax shall become a lien on realty
only from the date of the docketing of such cer-
tificate in the office of the clerk of the superior
court and on personalty only from the date of the
levy on such personalty, and upon the execution
thereon no homestead or personal property ex-
emption shall be allowed.
The commissioner of revenue, and his regularly
appointed deputies, shall have the same power as
is hereby given to the sheriffs of the several coun-
ties to execute any warrant issued for the collec-
tion of taxes as herein provided in any of the
counties of the state. Whenever the said warrant
is to be executed by a deputy of the commissioner
of revenue, it shall be directed to him, or any
other deputy authorized hereby to execute the
same, and he shall have, with respect thereto, all
the power and authority now and heretofore ex-
ercised by the sheriffs of the various counties with
respect to executions, and, in addition thereto, the
power and authority herein given him. When
such warrants for collection of taxes are executed
by the commission of revenue, or a deputy com-
missioner of revenue, no compensation to such
commissioner or deputy by way of fee or other-
wise shall be allowed.
The remedies herein given are cumulative and
in addition to all other remedies provided by law
for the collection of said taxes. (1937, c. 127, s.
812.)
§ 7880(170). Taxes recoverable by action. — Up-
on the failure of any corporation to pay the taxes,
fees, and penalties prescribed by this act, the
commissioner of revenue may certify same to the
sheriff of the county in which such company may
own property, for collection as provided in this
act; and if collection is not made, such taxes or
fees and penalties thereon may be recovered in an
action in the name of the state, which may- be
brought in the superior court of Wake county, or
in any county in which such corporation is doing
business, or any county in which such corpora-
tion owns property. The attorney general, on re-
quest of the commissioner of revenue, shall insti-
tute such action in the superior court of Wake
county, or of any such county as the commissioner
of revenue may direct. In any such action it shall
be sufficient to allege that the tax, fee, or penalty
sought to be recovered stands charged on the de-
linquent duplicate of the commissioner of revenue,
and that the same has been unpaid for the period
of thirty days after having been placed thereon.
(1937, c. 127, s. 813.)
§ 7880(171). Additional remedies. — In addition
to all other remedies for the collection of any
taxes or fees due under the provisions of this act,
the attorney general shall, upon request of the
commissioner of revenue, whenever any taxes,
fees, or penalties due under this act from any pub-
lic utility (not an agency of interstate commerce)
or corporation shall have remained unpaid for a
period of ninety days, or whenever any corpora-
tion or public utility (not an agency of interstate
commerce) has failed or neglected for ninety days
[ 304
§ 7880(172)
TAXATION
§ 7880(177)
to make or file any report or return required by
this act, or to pay any penalty for failure to make
or file such report or return, apply to the supe-
rior court of Wake County, or of any county in
the state in which such public utility (not an
agency of interstate commerce) or corporation is
located or has an office or place of business, for
an injunction to restrain such public utility (not
an agency of interstate commerce) or corporation
from the transaction of any business within the
state until the payment of such taxes or fees and
penalties thereon, or the making and filing of such
report or return and payment of penalties for fail-
ure to make or file such report or return, and the
cost of such application, which shall be fixed by
the court. Such petition shall be in the name of
the state; and if it is made to appear to the court,
upon hearing, that such public utility (not an
agency of interstate commerce) or corporation has
failed or neglected, for ninety days, to pay such
taxes, fees, or penalties thereon, or to make and
file such reports, or to pay such penalties, for fail-
ure to make or file such reports or returns, such
court shall grant and issue such injunction. (1937,
c. 127, s. 814.)
§ 7880(172). Failure of sheriff to execute order.
— If any sheriff of this state shall wilfully fail, re-
fuse, or neglect to execute any order directed to
him by the commissioner of revenue and within
the time provided in this act, the official bond of
such sheriff shall be liable for the tax, penalty, in-
terest, and cost due by the taxpayer. (1937, c.
127, s. 815.)
§ 7880(173). Actions, when tried. — All actions
or processes brought in any of the superior courts
of this state, under provisions of this act, shall
have precedence over any other civil causes pend-
ing in such courts, and the courts shall always be
deemed open for trial of any such action or pro-
ceeding brought therein. (1937, c. 127, s. 816.)
General Provisions
§ 7880(174). Taxes payable in national currency;
for what period, and when a lien. — The taxes here-
in designated and levied shall be payable in the
existing national currency. State, county, and mu-
nicipal .taxes levied for any and all purposes pur-
suant to this act shall be for the fiscal year in
which they become due, except as otherwise pro-
vided, and the lien of such taxes shall attach to
all real estate of the taxpayer within the state,
which shall attach annually on the date that such
taxes are due and payable, and shall continue un-
til such taxes, with any interest, penalty, and
costs which shall accrue thereon, shall be paid.
(1937, c. 127, s. 817.)
Applied in Winston-Salem v. Powell Paving Co., 7 F.
Supp. 424.
§ 7880(175). Municipalities not to levy income
and inheritance tax. — No city, town, township, or
county shall levy any tax on income or inherit-
ance. (1937, c. 127, s. 818.)
§ 7880(176). State taxes.— The taxes levied in
this act are for the expenses of the state govern-
ment, the appropriations to its educational, chari-
table, and penal institutions, pensions for confed-
erate soldiers and widows, the interest on the debt
of the state, for public schools, and other specific
appropriations made by law, and shall be collected
and paid into the general fund of the state treas-
urer.
The taxes levied under authority of section four
hundred ninety-two of chapter four hundred
twenty-seven of the Public Laws of one thousand
nine hundred thirty-one, and remaining unpaid,
shall be collected in the same manner as other
county taxes and accounted for in the same man-
ner as other taxes under the Daily Deposit Act.
The county treasurer or other officer receiving
such taxes in each county shall remit to the treas-
urer of the state on the first and fifteenth days of
each month all taxes collected up to the time of
such remittance under the levy therein provided
for, and such remittance to the state treasurer
shall also include the proportion of all poll taxes
collected required by the constitution of the state
to be used for educational purposes.
The tax levy therein provided for shall be sub-
ject to the same discounts and penalties as pro-
vided by law for other county taxes, and there
shall be allowed the same percentage for collect-
ing such taxes as for other county taxes. The ob-
ligation to the state under the levy therein pro-
vided for shall run against all taxes that become
delinquent; and with respect to any property that
may be sold for taxes, any public officer receiving
such delinquent taxes, when and if such property
may be redeemed or such tax obligations in any
manner satisfied, shall remit such proportionate
part of such tax levy to the state treasurer within
fifteen days after receipt of same. At the end of
each fiscal year the county accountant shall fur-
nish the state treasurer a statement of the total
amount of taxes levied in accordance with the pro-
visions of this section, that are uncollected at the
end of the fiscal year. (1937, c. 127, s. 819.)
§ 7880(177). Tax exemptions repealed. — When-
ever in any law or act of incorporation, granted
either under the general law or by special act,
there is any limitation or exemption of taxation,
the same is hereby repealed, and all the property
and effects of all such corporations, other than the
bonds of this state and of the United States gov-
ernment, shall be liable to taxation, except prop-
erty belonging to the United States and to munici-
pal corporations, and property held for the benefit
of churches, religious societies, charitable, educa-
tional, literary, or benevolent institutions or or-
ders, and also cemeteries: Provided, that no prop-
erty whatever, held or used for investment, specu-
lation, or rent, shall be exempt, other than bonds
of this state and of the United States government,
unless said rent or the interest on or income from
such investment shall be used exclusively for re-
ligious, charitable, educational, or benevolent pur-
poses, or the interest upon the bonded indebted-
ness of said religious, charitable, or benevolent in-
stitutions. (1937, c. 127, s. 819.)
Enumerated Exemption Exclusive of Others.—
In accord with original. See Benson v. Johnston County,
209 N. C. 751, 185 S. E. 6.
Property is liable for county taxes where it is not used by
the city for a governmental purpose, and therefore does not
come within the constitutional provision for the exemption
of property from taxation (N. C. Const. Art. V, sec. 5), or
within the scope of this section enacted pursuant thereto.
Benson v. Johnston County, 209 N. C. 751, 185 S. E. 6
N. C. Supp.— 20
[305
§ 7880(177)b
TAXATION
§ 7880(186>
§ 7880(177)b. Obsolete.
Editor's Note.— Pub! ia Laws 1937, c. 61, repealed Public
Laws 1935, c. 480, .exempting Gaston county from the pro-
visions of this section.
§ 7880(178). Law applicable to foreign corpora-
tions. — All foreign corporations, and the officers
and agents thereof, doing business in this state,
shall be subject to all the liabilities and restrictions
that are or may be imposed upon corporations of
like character, organized under the laws of this
state, and shall have no other or greater powers.
(1937, c. 127, s. 820.)
§ 7880(179). Information must be furnished. —
Each company, firm, corporation, person, associa-
tion, co-partnership, or public utility shall furnish
the commissioner of revenue, in the form of re-
turns prescribed by him, all information required
by law and all other facts and information, in addi-
tion to the facts and information in this act spe-
cifically required to be given, which the commis-
sioner of revenue may require to enable him to
carry into effect the provisions of the laws wThich
the said commissioner is required to administer,
and shall make specific answers to all questions
submitted by the commissioner of revenue. (1937,
c. 127, s. 821.)
§ 7880(180). Returns required. — Any company,
firm, corporation, person, association, co-partner-
ship, or public utility receiving from the commis-
sioner of revenue any blanks, requiring informa-
tion, shall cause them to be properly filled out so
as to answer fully and correctly each question
therein propounded, and in case it is unable to
answer any question, it shall, in writing, give a
good and sufficient reason for such failure.
The answers to such questions shall be veri-
fied under oath by such persons, or by the presi-
dent, secretary, superintendent, general manager,
principal accounting officer, partner, or agent, and
returned to the commissioner of revenue at his
office within the period fixed by the commissioner
of revenue. (1937, c. 127, s. 822.)
§ 7880(181). Personal liability of officers, trus-
tees, or receivers. — Any officer, trustee, or receiver
of any corporation required to file report with the
commissioner of revenue, having in his custody
funds of the corporation, who allows said funds to
be paid out or distributed to the stockholders of
said corporation without having satisfied the state
board of assessment or commissioner of revenue
for any state taxes which are due or have accrued,
shall be personally responsible for the payment
of said tax, and in addition thereto shall be sub-
ject to a penalty of not more than the amount of
the tax, nor less than twenty-five per cent (25%)
of such tax found to be due or accrued. (1937,
c. 127, s. 823.)
§ 7880(182). Blanks furnished by commissioner
of revenue. — The commissioner of revenue shall
cause to be prepared suitable blanks for carrying
out the purposes of the laws which he is required
to administer, and, on application, furnish such
blanks to each company, firm, corporation, person,
association, co-partnership, or public utility sub-
ject thereto. (1937, c. 127, s. 824.)
§ 7880(183). Commissioner of revenue to keep
records. — The commissioner of revenue shall keep
books of account and records of collections of
taxes as may be prescribed by the director of the
budget; shall keep an assessment roll for the taxes
levied, assessed, and collected under this act,
showing in same the name of each taxpayer, the
amount of tax assessed against each, when as-
sessed, the increase or decrease in such assess-
ment; the penalties imposed and collected, and the
total tax paid; and shall make monthly reports to
the director of the budget and to the auditor and/
or state treasurer of all collections of taxes on
such forms as prescribed by the director of the
budget. (1937, c. 127, s. 825.)
§ 7880(184). Publication of statistics. — The
commissioner of revenue shall prepare and pub-
lish annually statistics reasonably available, with
respect to the operation of this act, including
amounts collected, classifications of taxpayers, in-
come and exemptions, and such other facts as are
deemed pertinent and valuable. (1937, c. 127, s.
826.)
§ 7880(185). Powers of commissioner of reve-
nue.— The commissioner of revenue, for the pur-
pose of ascertaining the correctness of any return
or for the purpose of making an estimate of the
tax due by any taxpayer under this act, shall have
the power to examine or cause to be examined,
by any agent or representative designated by him
for that purpose, any books, papers, records, or
memoranda bearing upon the matters required to
be included in the return, and may require the at-
tendance of the taxpayer or of any other person
having knowledge in the premises, and may take
testimony and require proof material for his in-
formation, with power to administer oaths to such
person or persons. (1937, c. 127, s. 827.)
§ 7880(186). Secrecy required of officials — pen-
alty for violation. — {a) Except in accordance with
proper judicial order, or as otherwise provided by
law, it shall be unlawful for the commissioner of
revenue, any deputy, agent, clerk, other officer,
employee, or former officer or employee, to di-
vulge and make known in any manner the amount
of income, income tax or other taxes, set forth or
disclosed in any report or return required under
this act.
(b) Nothing in this section shall be construed
to prohibit the publication of statistics, so classi-
fied as to prevent the identification of particular
reports or returns, and the items thereof; the in-
spection of such reports or returns by the gover-
nor, attorney general, or their duly authorized
representative; or the inspection by a legal repre-
sentative of the state of the report or return of
any taxpayer who shall bring an action to set
aside or review the tax based thereon, or against
whom an action or proceeding has been instituted
to recover any tax or penalty imposed by this
act; nor shall the provisions of this section pro-
hibit the department of revenue furnishing infor-
mation to other governmental agencies, of persons
and firms properly licensed under Schedule B of
this act [§ 7880(30) et seq.]. The department of
revenue may exchange information with the offi-
cers of organized associations of taxpayers under
Schedule B of this act with respect to parties liable
for such taxes and as to parties who have paid
such license taxes.
[ 306
§ 7880(187)
TAXATION
§ 7880(194)
(c) Reports and returns shall be preserved for
three years, and thereafter until the commissioner
of revenue shall order the same to be destroyed.
(d) Any person, officer, agent, clerk, employee,
or former officer or employee violating the provi-
sions of this section shall be guilty of a misde-
meanor, and fined not less than two hundred
dollars ($200.00) nor more than one thousand dol-
lars ($1,000.00) and/or imprisoned, in the discre-
tion of the court; and if such offending person be
an officer or employee of the state, he shall be
dismissed from such office or employment, and
shall not hold any public office or employment in
this state for a period of five years thereafter.
(e) Notwithstanding the provisions of this sec-
tion, the commissioner of revenue may permit the
commissioner of internal revenue of the United
States, or the revenue officer of any state impos-
ing any of the taxes imposed in this act, or the
duly authorized representative of either, to inspect
the report or return of any taxpayer; or may fur-
nish such officer or his authorized agent an ab-
stract of the report or return of any taxpayer; or
supply such officer with information concerning
any item contained in any report or return, or dis-
closed by the report of any investigation of such
report or return of any taxpayer. Such permis-
sion, however, shall be granted or such informa-
tion furnished to such officer, or his duly author-
ized representative, only if the statutes of the
United States or of such other state grants sub-
stantially similar privilege to the commissioner of
revenue of this state or his duly authorized repre-
sentative. (1937, c. 127, s. 828.)
§ 7880(187). Deputies and clerks. — The com-
missioner of revenue may appoint such deputies,
clerks and assistants under his direction as may
be necessary to administer the laws relating to the
assessment and collection of all taxes provided for
in this act; may remove and discharge same at his
discretion, and shall fix their compensation within
the rules and regulations prescribed by law. (1937,
c. 127, s. 829.)
§ 7880(188). Commissioner and deputies to ad-
minister oaths. — The commissioner of revenue and
such deputies as he may designate shall have the
power to administer an oath to any person or to
take the acknowledgment of any person in respect
to any return or report required by this act or un-
der the rules and regulations of the commissioner
of revenue, and shall have access to the books
and records of any person, firm, corporation,
county, or municipality in this state. (1937, c.
127, s. 830.)
§ 7880 (189). Rules and regulations.— The com-
missioner of revenue may, from time to time,
make, prescribe, and publish such rules and regu-
lations, not inconsistent with this act, as may be
needful to enforce its provisions. (1937, c. 127,
s. 831.)
§ 7880(190). Time for filing reports extended.—
The commissioner of revenue, when he deems the
same necessary or advisable, may extend to any
person, firm, or corporation or public utility a
further specified time within which to file any re-
port required by law to be filed with the commis-
sioner of revenue, in which event the attaching or
taking effect of any penalty for failure to file such
report or to pay any tax or fee shall be extended
or postponed accordingly. Interest at the rate of
six per cent (6%) per annum from the time the
report or return was originally required to be filed
to the time of payment shall be added and paid.
(1937, c. 127, s. 832.)
§ 7880(191). Construction of the act; popula-
tion.— It shall be the duty of the commissioner of
revenue to construe all sections of this act impos-
ing either license, inheritance, income, or other
taxes. Such decisions by the commissioner of
revenue shall be prima facie correct, and a protec-
tion to the officers and taxpayers affected thereby.
Where the license tax is graduated in this act ac-
cording to the population, the population shall be
the number of inhabitants as determined by the
last census of the United States government: Pro-
vided, that if any city or town in this state has
extended its limits since the last census period,
and thereafter has taken a census of its population
in these increased limits by an official enumera-
tion, either through the aid of the United States
government or otherwise, the population thus as-
certained shall be that upon which the license tax
is to be graduated. (1937, c. 127, s. 833.)
The Commissioner of Revenue is given authority to ad-
ministratively construe, in the first instance, all sections
of the revenue law. Powell v. Maxwell, 210 N. C. 211, 186
S. D. 326.
§ 7880(192). When increases operative. — In all
instances in which the taxes are increased or de-
creased or new taxes imposed under Schedules B
and C of this act [§ 7880(30) et seq.], and which
shall become due 'between the ratification of this
act and the first day of June, one thousand nine
hundred and thirty-seven, such increase or de-
crease shall become operative only from and after
the thirty-first day of May, one thousand nine
hundred and thirty-seven. (1937, c. 127, s. 834.)
§ 7880(193). Authority for imposition of tax.—
This act, after its ratification, shall constitute au-
thority for the imposition of taxes upon the sub-
ject herein revised, and all laws in conflict with
it are hereby repealed, but such repeal shall not
affect taxes listed or which ought or should have
been listed, or which may have been due, or pen-
alties or fines incurred from failure to make the
proper reports, or to pay the taxes at the proper
time under any of the schedules of existing law,
but such taxes and penalties may be collected, and
criminal offenses prosecuted under such law ex-
isting at the time of the ratification of this act,
notwithstanding this repeal. (1937, c. 127, s. 835.)
§ 7880(194). Taxes to be paid.— (a) No court
of this state shall entertain a suit of any kind
brought for the purpose of preventing the collec-
tion of any tax imposed in this act. Whenever
a person shall have a valid defense to the enforce-
ment of the collection of a tax assessed or charged
against him or his property, such person shall pay
such tax to the proper officer, and notify such of-
ficer in writing that he pays same under protest.
Such payment shall -be without prejudice to any
defense of rights he may have in the premises,
and he may, at any time within thirty days after
such payment, demand the same in writing from
the commissioner of revenue of the state, if a state
[ 307
§ 7880(194)a
TAXATION
§ 7971(105)
tax, or if a county, city, or town tax, from the
treasurer thereof for the benefit or under the au-
thority or by request of which the same was lev-
ied; and if the same shall not be refunded within
ninety days thereafter, may sue such official in
the courts of the state for the amount so de-
manded. Such suit, if against the state commis-
sioner of revenue, must be brought in the supe-
rior court of Wake county, or in the county in
which the taxpayer resides, if the sum demanded
is upwards of two hundred dollars ($200.00), and
if for two hundred dollars ($200.00) or less, before
any state court of competent jurisdiction in Wake
county. If for a county, city or town tax, suit
must be brought in a state court of competent ju-
risdiction in the county where the tax is collecti-
ble, and the defendant official has his official resi-
dence. If upon the trial it shall be determined
that such tax or any part thereof was levied or
assessed for an illegal or unauthorized purpose, or
wras for any reason invalid or excessive, judgment
shall be rendered therefor, with interest, and the
same shall be collected as in other cases. The
amount of state taxes for which judgment shall
be rendered in such action shall be refunded by
the state.
(b) In case of determination after an examina-
tion by a department representative has been made
and a refund is found to be due, in addition to the
amount of tax overpaid, interest shall be added at
the rate of six per cent (6%) per annum from the
date tax was paid. (1937, c. 127, s. 836.)
To Recover Tax Illegally Collected Statutory Procedure
Must Be Complied with. —
In an action under the Revenue Act of 1933 it was held
that an allegation that the tax was paid under compulsion
was a mere conclusion of the pleader, and a demurrer of
the Commissioner of Revenue was sustained. Metro- Gold-
wyn-Mayer Distributing- Corp. v. Maxwell, 209 N. C. 47,
182 S. F. 724.
Section Provides Adequate Remedy at Law. — A suit to
enjoin the collection of the photographer's tax imposed by
§ 7880(38) was held not maintainable as there is an ade-
quate remedy at lav under the provisions of this section.
Lucas v. Charlotte, 14 F. Supp. 163.
§ 7880(194)a. Reciprocal comity. — The courts
of this state shall recognize and enforce liabilities
for taxes lawfully imposed by other states which
extend a like comity to this state. (1937, c. 127,
s. 837.)
For an analysis of this section, see 13 N. C. Law Rev.,
No. 4, p. 405.
§ 7880(194)b. Extraterritorial authority to en-
force payment. — The commissioner of revenue,
with the assistance of the attorney general, is
hereby empowered to bring suits in the courts of
other states to collect taxes legally due this state.
The officials of other states which extend a like
comity to this state are empowered to sue for the
collection of such taxes in the courts of this state.
A certificate by the secretary of state, under the
great seal of the state, that such officers have au-
thority to collect the tax shall be conclusive evi-
dence of such authority. (1937, c. 127, s. 838.)
§ 7880(195). Unconstitutionality or invalidity;
captions of sections not to affect interpretation. — ■
If any clause, sentence, paragraph, or part of this
act shall for any reason he adjudged by any court
of competent jurisdiction to be invalid, such judg-
ment shall not affect, impair, or invalidate the re-
mainder 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. (1937, c. 127, s. 839.)
SUBCHAPTER II. ASSESSMENT AND
LISTING OF TAXES
§§ 7971(1)-7971(51): Repealed by Public Laws
1937, c. 291, s. 1703, codified as § 7971(206).
§§ 7971(52)-7971(98): Repealed by Public Laws
1937, c. 291, s. 1703, codified as § 7971(206).
Art. 9A. Machinery Act of 1937
Part 1. In General
§ 7971(104). Official title. — - This act may be
cited as the Machinery Act of one thousand nine
hundred thirty-seven. (1937, c. 291, s. 1.)
Editor's Note.— The 1937 Machinery Act repeals articles
1 to 8 of this subchapter with the exception of §§ 7971(51a)
and 7971(51b).
§ 7971(105). Definitions. — When used in this
act:
(1) The term "person" means an individual,
trust, estate, partnership, firm or company.
(2) The term "corporation" includes associa-
tions, joint-stock companies, insurance companies,
and limited partnerships wmere shares of stock are
issued.
(3) The term "domestic" when applied to cor-
porations or partnerships means created or or-
ganized under the laws of the state of North Caro-
lina.
(4) The term "foreign" when applied to corpo-
rations or partnerships means a corporation or
partnership not domestic.
(5) The term "commissioner" means the com-
missioner of revenue.
(6) The term "deputy" means an authorized
representative of the commissioner of revenue or
other commissioner.
(7) The term "taxpayer" means any person or
corporation subject to a tax or duty imposed by
the Revenue Act or Machinery Act, or whose
property is subject to any ad valorem tax levied
by the state or its political sub-divisions.
(8) The term "state license" means a license is-
sued by the commissioner of revenue, usable, good
and valid in the county or counties named in the
license.
(9) The term "state-wide license" means a li-
cense issued by the commissioner of revenue, us-
able, good and valid in each and every county in
this state.
(10) The term "intangible property" means
patents, copyrights, secret processes and formulae,
good will, trade-marks, trade-brands, franchises,
stocks, bonds, cash, bank deposits, notes, evidences
of debt, bills and accounts receivable, and other
like property.
(11) The term "tangible property" means all
property other than intangible.
(12) The term "public utility" as used in this
act means and includes each person, firm, com-
pany, corporation and association, their lessees,
trustees or receivers, elected or appointed by any
authority whatsoever, and herein referred to as
308
§ 7971(105)
TAXATION
§ 7971(106)
express company, telephone company, telegraph
company, Pullman-car company, freight-line com-
pany, equipment company, electric power com-
pany, gas company, railroad company, union depot
company, water transportation company, street
railway company, and other companies exercising
the right of eminent domain, and such term, "pub-
lic utility," shall include any plant or property
owned or operated by any such persons, firms, cor-
porations, companies or associations.
(13) The term "express company" means a pub-
lic utility company engaged in the business of con-
veying to, from, or through this state, or part
thereof, money, packages, gold, silver, plate, or
other articles and commodities by express, not in-
cluding the ordinary freight lines of transportation
of merchandise and property in this state.
(14) The term "telephone company" means a
public utility company engaged in the business of
transmitting to, from, through, or in this state, or
part thereof, telephone messages or conversations.
(15) The term "telegraph company" means a
public utility company engaged in the business of
transmitting to, from, through, or in this state, or
a part thereof, telegraphic messages.
(16) The term "Pullman-car company" means a
public utility company engaged in the business of
operating cars for the transportation, accommoda-
tion, comfort, convenience, or safety of passengers,
on or over any railroad line or lines or other com-
mon carrier lines, in whole or in part within this
state, such line or lines not being owned, leased,
and/or operated by such railroad company,
whether such cars be termed sleeping, Pullman,
palace, parlor, observation, chair, dining or buffet
cars, or by any other name.
(17) The term "freight-line company" means a
public utility company engaged in the business of
operating cars for the transportation of freight or
commodities, whether such freight and/or com-
modities is owned by such company or any other
person or company, over any railroad or other
common carrier line or lines in whole or in part
within this state, such line or lines not being
owned, leased, and/or operated by such railroad
company, whether such cars be termed box, flat,
coal, ore, tank, stock, gondola, furniture, refrigera-
tor, fruit, meat, oil, or by any other name.
(18) The term "equipment company" means a
public utility company engaged in the business of
furnishing and/or leasing cars, of whatsoever
kind or description, to be used in the operation of
any railroad or other common carrier line or lines,
in whole or in part within this state, such line or
lines not being owned, leased, or operated by such
railroad company.
(19) The term "electric power company" means
a public utility company engaging in the business
of supplying electricity for light, heat and/or
power purposes to consumers within this state.
(20) The term "gas company" means a public
utility company engaged in the business of supply-
ing gas for light, heat, and/or power purposes to
consumers within this state.
(21) The term "waterworks company" means
a public utility company engaged in the business
of supplying water through pipes or tubing and/or
similar manner to consumers within this state.
(22) The term "union depot company" means a
public utility company engaged in the business of
operating a union depot or station for railroads or
other common carrier purposes.
(23) The term "water transportation company"
means a public utility company engaged in the
transportation of passengers and/or property by
boat or other water craft, over any waterway,
whether natural or artificial, from one point within
this state to another point within this state, or be-
tween points within this state and points without
this state.
(24) The term "street railway company" means
a public utility company engaged in the business
of operating a street, suburban or interurban rail-
way, either wholly or partially within this state,
whether cars are propelled by steam, cable, elec-
tricity, or other motive power.
(25) The term "railroad company" means a
public utility company engaged in the business of
operating a railroad, either wholly or partially
within this state, or rights-of-way acquired or
leased and held exclusively by such company or
otherwise.
(26) The term "gross receipts" or "gross earn-
ings" mean and include the entire receipts for
business done by any person, firm, or corporation,
domestic or foreign, from the operation of busi-
ness or incidental thereto, or in connection there-
with. The gross receipts or gross earnings for
business done by a corporation engaged in the op-
eration of a public utility shall mean and include
the entire receipts for business done by such cor-
poration, whether from the operation of the public
utility itself or from any other source whatsoever.
(27) The terms "bank," "banker," "broker,"
"stock jobber" mean and include any person, firm,
or corporation who or wmich has money employed
in the business of dealing in coin, notes, bills of
exchange, or in any business of dealing, or in buy-
ing or selling any kind of bills of exchange, checks,
drafts, bank notes, acceptances, promissory notes,
bonds, warrants or other written obligations, or
stocks of any kind or description whatsoever, or
receiving money on deposit.
(28) The terms "collector" and "collectors"
mean and include county, township, city or town
tax collectors, and sheriffs.
(29) The terms "list takers" and "assessors"
mean and include list takers, assessors and assist-
ants.
(30) The terms "real property," "real estate,"
"land," "tract," or "lot" mean and include not
only the land itself, but also all buildings, struc-
tures, improvements and permanent fixtures there-
on, and all rights and privileges belonging or in
any wise appertaining thereto, except where the
same may be otherwise denominated by this or
the Revenue Act.
(31) The terms "shares of stock" or "shares of
capital stock" mean and include the shares into
which the capital or capital stock of any incor-
porated company or association may be divided.
(32) The terms "tax" or "taxes" mean and in-
clude any taxes, special assessments, costs, penal-
ties, and/or interest imposed upon property or
other subjects of taxation. (1937, c. 291, s. 2.)
Part 2. State Board of Assessment
§ 7971(106). Creation; officers. — The governor,
309
§ 7971(107)
TAXATION
§ 7971(108)
or some person designated by him, the commis-
sioner of revenue, the public utilities commissioner,
the attorney general, and the director of local gov-
ernment shall be and are hereby created the state
board of assessment, with all the powers and du-
ties prescribed in the act. The commissioner of
revenue shall be the chairman of the said board,
and shall, in addition to presiding at the meetings
of the board, exercise the functions, duties, and
powers of the board when not in session. The
board may employ an executive secretary, whose
entire time may be given to the work of the said
board, and is authorized to employ such clerical
assistance as may be needed for the performance
of its duties; all expenses of said board shall be
paid out of funds appropriated out of the general
fund to the credit of the department of revenue of
the state. (1937, c. 291, s. 200.)
§ 7971(107). Oath of office. — The members of
the board shall take and subscribe to the consti-
tutional oath of office and file the same with the
secretary of state. (1937, c. 291, s. 201.)
§ 7971(108). Duties of the board. — The state
board of assessment shall exercise general and
specific supervision of the systems of valuation
and taxation throughout the state, including coun-
ties and municipalities, and in addition it shall be
and constitute a state board of equalization and
review of valuation and taxation in this state. It
shall be the duty of said board:
(1) To confer with and advise boards of county
commissioners, tax supervisors, assessing officers,
list takers, and all others engaged in the valuation
and assessment of property, in the preparation and
keeping of suitable records, and in the levying and
collection of taxes and revenues, as to their duties
under this act or any other act passed with respect
to valuation of property, assessing, levying or col-
lection of revenue for counties, municipalities and
other sub-divisions of the state, to insure that
proper proceedings shall be brought to enforce the
statutes pertaining to taxation and for the collec-
tion of penalties and liabilities imposed by law
upon public officers, officers of corporations, and
individuals failing, refusing or neglecting to com-
ply with this act; and to call upon the attorney
general or any prosecuting attorney in the state
to assist in the execution of the powers herein
conferred.
(2) To prepare a pamphlet or booklet for the
instruction of the boards of county commissioners,
tax supervisors, assessing officers, list takers, and
all others engaged in the valuation of property,
preparing and keeping records, and in the levying
and collecting of taxes and revenue, and have the
same ready for distribution at least thirty (30)
days prior to the date fixed for listing taxes. The
said pamphlet or booklet shall, in as plain terms
as possible, explain the proper meaning of the
revenue laws and the Machinery Act of this state;
shall call particular attention to any points in the
law or in the administration of the laws which may
be or which have been overlooked or neglected;
shall advise as to the practical working of the
revenue laws and the Machinery Act, and shall
explain and interpret any points that seem to be
intricate and upon which county or state officials
may differ.
(3) To hear and to adjudicate appeals from
boards of county commissioners and county boards
of equalization and review as to property liable for
taxation that has not been assessed or of property
that has been fraudulently or improperly assessed
through error or otherwise, to investigate the same,
and if error, inequality, or fraud is found to exist,
to take such proceedings and to make such orders
as to correct the same. In case it shall be made
to appear to the state board of assessment that
any tax list or assessment roll in any county in
this state is grossly irregular, or any property is
unlawfully or unequally assessed as between in-
dividuals, between sections of a county, or between
counties, the said board shall correct such irregu-
larities, inequalities and lack of uniformity, and
shall equalize and make uniform the valuation
thereof upon complaint by the board of county
commissioners under rules and regulations pre-
scribed by it, not inconsistent with this act: Pro-
vided, that no appeals shall be considered or fixed
values changed unless notice of same is filed with-
in sixty (60) days after the final values are fixed
and determined by the board of county commis-
sioners or the board of equalization and review, as
hereinafter provided.
(4) To require from the register of deeds, audi-
tor, county accountant, tax clerk, clerk of the court
or other officer of each county, and the mayor,
clerk or other officer of each municipality, on forms
prepared and prescribed by the said board, such
annual and other reports as shall enable said board
to ascertain the assessed valuation of all property
listed for taxation in this state under this or any
other act, the rate and amount of taxes assessed
and collected, the amount returned delinquent,
tax sales, certificates of purchase at such tax sales
held by the state, county or municipality, and such
other information as the board may require, to the
end that it may have full, complete, and accurate
statistical information as to the practical operation
of the tax and revenue laws of the state.
(5) To require the secretary of state, and it
shall be his duty, to furnish monthly to the said
board a list of all domestic corporations incorpo-
rated, charter amended or dissolved, all foreign
corporations domesticated, charter amended, dis-
solved or domestication withdrawn during the pre-
ceding month, in such detail as may be prescribed
by said board.
(6) To make diligent investigation and inquiry
concerning the revenue laws and systems of taxa-
tion of other states, so far as the same are made
known by published reports and statistics and can
be ascertained by correspondence with officers
thereof.
(7) To< report to the general assembly at each
regular session, or at such other times as it may
direct, the total amount of revenue or taxes col-
lected in this state for state, county, and munici-
pal purposes, classified as to state, county, town-
ship, and municipality, with the sources thereof;
to report to the general assembly the proceeding
of the board and such other information and rec-
ommendations concerning the public revenues as
required by the general assembly or that may be
of public interest; to cause two thousand (2,000)
copies of said report to be printed on or before
the first day of January in the year of the regular
session of the general assembly, and place at the
[ 310
§ 7971(109)
TAXATION
§ 7971(109)
disposal of the state librarian one hundred (100)
copies of said report for distribution and exchange,
if and when funds are available for said purpose;
and to forward a copy of said report to each mem-
ber of the general assembly as soon as printed.
(8) To discharge such other duties as may be
prescribed by law, and take such action, do such
things, and prescribe such rules and regulations
as may be needful and proper to enforce the pro-
visions of this and the Revenue Act.
(9) To prepare for the legislative committee of
succeeding general assemblies such suggestions of
revision of the revenue laws, including the Ma-
chinery Act, as it may find by experience, investi-
gation, and study to be expedient and wise.
(10) To report to the governor, on or before
the first day of January of each year, the pro-
ceedings of said board during the preceding year,
with such recommendations as it desires to submit
with respect to any matters touching taxation and
revenue.
(11) To keep full, correct and accurate records
of its official proceedings.
(12) To properly administer the duties pre-
scribed by article VIII, Schedule H, of the Rev-
enue Act [§ 7880(156)oo et seq.], with respect to
division and certification of taxes collected there-
under; the state board of assessment shall hear
and pass upon any matters relative thereto.
(1937, c. 291, s. 202.)
§ 7971(109). Powers of the board.— To the end
that the board may properly discharge the duties
placed upon it by law, it is hereby accorded the
following powers:
(1) It may, in its discretion, prescribe the
forms, books, and records that shall be used in
the valuation of property and in the levying and
collection of taxes, and how the same shall be
kept; to require the county tax supervisors, clerks
or boards of county commissioners, or auditor of
each county to file with it, when called for, com-
plete abstracts of all real and personal property
in the county, itemized by townships and as
equalized by the county board of equalization and
review; and to make such other rules and regu-
lations, not included in this or the Revenue Act,
as said board may deem needful effectually to
promote the purposes for which the board is con-
stituted and the systems of taxation provided for
in this and the Revenue Act.
(2) The board, its members or any duly au-
thorized deputy shall have access to all books,
papers, documents, statements, records and ac-
counts on file or of records in any department of
state, county or municipality, and is authorized
and empowered to subpoena witnesses upon a sub-
poena signed by the chairman of the board, di-
rected to such witnesses, and to be served by any
officer authorized to serve subpoenas; to compel
the attendance of witnesses by attachment to be
issued by any superior court upon proper showing
that such witness or witnesses have been duly
subpoenaed and have refused to obey such sub-
poena or subpoenas; and to examine witnesses un-
der oath to be administered by any member of the
board.
(3) The board, its members or any duly au-
thorized deputy are authorized and empowered to
examine all books, papers, records or accounts of
[31
persons, firms and corporations, domestic and for-
eign, owning property liable to assessment for
taxes, general or specific, levied by this state or
its sub-divisions. Said board, its members or any
duly authorized deputy are also given power and
authority to examine the books, papers, records or
accounts of any person, firm or corporation where
there is ground for believing that information con-
tained in such books, papers, records and accounts
is pertinent to the decision of any matter pending
before said board, regardless of whether such per-
son, firm or corporation is a party to the proceed-
ing before the board. Books, papers, records or
accounts examined under authority of this sub-
division of this section shall be examined only after
service of a proper subpoena, signed by the chair-
man of the board and served by an officer au-
thorized to serve subpoenas upon the person hav-
ing the custody of such books, papers, records or
accounts.
Any person, persons, member of a firm, or any
officer, director or stockholder of a corporation,
bank or trust company who shall refuse permis-
sion to inspect any books, papers, documents,
statements, accounts or records demanded by the
state board of assessment, the members thereof,
or any duly authorized deputy provided for in this
act or the Revenue Act, or who shall wilfully fail,
refuse, or neglect to appear before said board in
response to its subpoena or to testify as provided
for in this act and the Revenue Act, shall, in ad-
dition to all other penalties imposed in this or the
Revenue Act, be guilty of a misdemeanor and
fined and/or imprisoned in the discretion of the
court.
(4) The board is authorized and empowered to
direct any member or members of the board to
hear complaints, to make examination and investi-
gations, and to report his or their findings of fact
and conclusions of law to the board. Upon de-
mand of any party to an appeal pending before the
board, the board shall send one of its members or
a special representative designated by it to make
an actual examination of the property and other
similar property in the same county and report
to the board. The cost of making said examination
shall be advanced by the county: Provided, that
in cases in which the examination is demanded by
s taxpayer, if the board's decision does not sub-
stantially affirm the contentions of the taxpayer,
the board in its decision shall direct that the
county advancing the cost may add such cost to
the taxes levied against the property.
(5) The board shall have power to certify cop-
ies of its records and proceedings, attested with
its official seal, and copies of records or proceed-
ings so certified shall be received in evidence in
all courts of this state with like effect as certified
copies of other public records.
(6) The board may, upon its own motion or
upon request of any tax supervisor or county board
of commissioners, transmit or make available to a
supervisor or duly authorized representative of
such board of commissioners any information con-
tained in any report to said state board, or in any
report to the department of revenue or other state
department to which said state board may have
access, or any other information which said state
board may have in its possession when, in the
1]
§ 7971(110)
TAXATION
§ 7971(114)
opinion of said board, such information will assist
said supervisor or representative of the commis-
sioners in securing an adequate listing of property
for taxation or in assessing taxable property.
Except as herein specified, and except to the
governor or his authorized agent or solicitor or
authorized agent of the solicitor of a district in
which such information would affect the listing or
valuation of property for taxes, the state board
shall not divulge or make public the reports made
to it or to other state departments: Provided, this
shall not interfere with the publication of assess-
ments and decisions made by said board or with
publication of statistics by said board; nor shall
it prevent presentation of such information in any
administrative or judicial proceedings involving as-
sessments or decisions of said board.
Information transmitted or made available to
local tax authorities under this section shall not
be divulged or published by such authorities, and
shall be used only for the purposes of securing
adequate tax lists, assessing taxable property and
presentation in administrative or judicial proceed-
ings involving such lists or assessments. (1937, c.
291, s. 203.)
§ 7971(110). Sessions of board, where to be held.
— The regular sessions of the state board of as-
sessment shall be held in the city of Raleigh at
the office of the chairman, and other sessions may
be called at any place in the state to be decided
by the board. (1937, c. 291, s. 204.)
Part 3. Quadrennial and Annual Assessment
§ 7971(111). Listing and assessing in quadren-
nial years. — In one thousand nine hundred and
thirty-seven, and quadrennially thereafter, all
property, real and personal, subject to taxation,
shall be listed and assessed for ad valorem tax
purposes: Provided, that in one thousand nine hun-
dred and thirty-seven and quadrennially there-
after the county boards of commissioners may de-
termine whether real property in the respective
counties and townships shall be revalued by hori-
zontal increase or reduction or by actual appraisal
thereof, or both: Provided further, that in those
counties and townships where no actual appraisal
of real property is made in one thousand nine hun-
dred and thirty-seven, the county boards of com-
missioners may in one thousand nine hundred and
thirty-eight exercise all the provisions contained
herein for listing and assessing and revaluing real
property. Where the horizonal method is used,
the provisions of the next succeeding section shall
also apply. (1937, c. 291, s. 300.)
§ 7971(112). Listing and assessing in years other
than quadrennial years. — In years other than
quadrennial years all property, real and personal,
subject to taxation, shall be listed for ad valorem
tax purposes. Property not subject to reassess-
ment in such years shall be listed at the value at
which it was assessed at the last quadrennial as-
sessment. In all such years the following prop-
erty shall be assessed or reassessed:
(1) All personal property (which for purposes
of taxation shall include all personal property
whatsoever, tangible or intangible, except personal
property expressly exempted by law).
(2) All machinery, service station equipment,
merchandise and trade fixtures, barber shop equip-
ment, meat market equipment, restaurant and cafe
fixtures, drug store equipment and similar prop-
erty not permanently affixed to the real estate.
(3) All real property (which for purposes of
taxation shall include all lands within the state
and all buildings and fixtures thereon and appur-
tenances thereto) which:
(a) Was not assessed at the last quadrennial as-
sessment.
(b) Has increased in value to the extent of more
than one hundred dollars ($100.00) by virtue of
improvements or appurtenances added since the
last assessment of such property.
(c) Has decreased in value to the extent of more
than one hundred dollars ($100.00) by virtue of
improvements or appurtenances damaged, de-
stroyed or removed since the last assessment of
such property.
(d) Has increased or decreased in value since
the last assessment of such property by virtue of
some extraordinary circumstances, such circum-
stances being those of unusual occurrence in trade
or business, and the facts in connection with which
shall be found by the board of equalization in each
case and entered upon the proceedings of said
board.
(e) Has been subdivided into lots located on
streets already laid out and open, and sold or
offered for sale as lots, since the date of the last
assessment of such property. This shall apply
to all cases of sub-division into lots, regardless of
whether the land is situated within or without an
incorporated municipality: Provided, that where
lands have been subdivided into lots, and more
than five acres of any such sub-division remain un-
sold by the owner thereof, the unsold portion may
be listed as land acreage, in the discretion of the
tax supervisor.
(f) Was last assessed at an improper figure as
the result of a clerical error.
(g) Was last assessed at a figure which mani-
festly is unjust by comparison with the assessment
placed upon similar property in the county: Pro-
vided, that the power to reassess under this sub-
division shall be exercised only by .the board of
equalization and review, subject to appeal to the
state board of assessment. (1937, c. 291, s. 301.)
§ 7971(113). Date as of which assessment is to
be made. — All property, real and personal, shall
be listed or listed and assessed, as the case may
be, in accordance with ownership and value as of
the first day of April, one thousand nine hundred
and thirty-seven, and thereafter all property shall
be listed or listed and assessed in accordance with
ownership and value as of the first day of April
each year. (1937, c. 291, s. 302.)
§ 7971(114). Property subject to taxation.— All
property, real and personal, within the jurisdic-
tion of the state, not especially exempted, shall be
subject to taxation. (1937, c. 291, s. 303.)
Editor's Note. — For cases construing former § 7971(18),
now repealed, which defined what should be included as-
personal property see Lawrence v. Shaw, 210 N. C. 352, 361,
186 S. E. 504; Mecklenburg County v. Sterchi Bros. Stores,
210 N. C. 79, 185 S. E. 454.
Taxation of Personal Property of Nonresidents Is Con-
stitutional.— The taxation of personal property of nonresi-
dents by this state when such personal property has ac-
quired a taxable situs here does not violate the provisions
of the 14th Amendment of the Federal Constitution, the
rule that personal property follows the domicile of the
[312]
§ 7971(115)
TAXATION
§ 7971(120)
owner being subject to an exception when such personalty
is held in such a manner as to create a "business situs"
for the purpose of taxation. Mecklenburg County v. Ster-
chi Bros. Stores, 210 N. C. 79, 185 S. E. 454, construing
former § 7971(18), now repealed.
§ 7971(115). Article subordinated to § 7880-
(156)oo et seq. — None of the provisions contained
in any of the sections of this article shall be con-
strued to conflict with Article VIII, Schedule H,
of the Revenue Act [§ 7880(156)oo et seq.], but
rather shall they be subordinate thereto. (1937,
c. 291, s. 304.)
Part 4. Personnel for County Tax Listing
and Assessing
§! 7971(116). Appointment land qualification of
tax supervisors. — At or before the regular meet-
ing next preceding the date as of which property
is to be listed and assessed, the board of county
commissioners of each county shall appoint as tax
supervisor some person who shall be a free-
holder in the county, who shall, for one year
immediately preceding the appointment, have been
a resident of the county, and whose experience in
the valuation of real and personal property is satis-
factory to the board.
In counties in which there is an auditor, tax
clerk, county accountant, all-time chairman of the
board of county commissioners, or other similar
officer, either may be designated as supervisor by
the board of county commissioners. (1937, c. 291,
s. 400.)
§ 7871(117). Term of office and compensation
of supervisors. — The tax supervisor shall serve for
one year or for such shorter period of time as the
board may designate. In the case he is appointed
for one year he shall serve until his successor is
appointed and has qualified, subject to removal for
cause by the board of commissioners at any time.
Any vacancy shall be filled by appointment by the
hoard of commissioners.
The compensation of the supervisor shall be
fixed by the board of commissioners, and he shall
be allowed such expenses as the commissioners
may approve. (1937, c. 291, s. 401.)
§ 7971(118). Oath of office of supervisor.— Im-
mediately after his appointment, and before enter-
ing upon the duties of his office, the supervisor
shall file with the clerk of the board of commis-
sioners the following oath, subscribed and sworn
to before the chairman of the board of commis-
sioners or some other officer qualified to administer
oaths:
"I, , County Tax Supervisor for
County, North Carolina, for the year , do
solemnly swear (or affirm) that I will discharge
the duties of my office as supervisor according to
the laws in force governing such office; so help
me, God.
(1937, c. 291, s. 402.)
(Signature.)
§ 7971(119). Powers and duties of tax super-
visor. — (1) The supervisor shall have general
charge of the listing and assessing of all property
in the county in accordance with the provisions
of law.
(2) He shall appoint the list takers and asses-
[3
sors, subject to the approval of the commissioners,
as hereinafter provided.
(3) He shall, on the second Monday preceding
the date as of which property is to be assessed or
at some time during the week which includes said
Monday, convene the list takers and assessors for
general consideration of methods of securing a
complete list of all property in the county, and of
assessing, in accordance with law, all property
which is to be assessed during the approaching
listing period.
(4) He shall visit each list taker at least once
during the period of listing, and shall confer with
each list taker during said period as often as he or
the list taker deems necessary, to the end that all
property shall be listed and assessed according to
law, and that assessments shall be equalized as
between the various townships.
(5) He shall have power to subpoena any person
for examination under oath and to subpoena any
books, papers, records or accounts whenever he
has reasonable grounds for the belief that such
person has knowledge or such books, papers,
records and accounts containing information which
is pertinent to the discovery or the valuation of
any property subject to taxation in the county, or
which is necessary for compliance with the require-
ments as to what the tax list shall contain, herein-
after set forth. The subpoena shall be signed by
the chairman of the county board of equalization
and served by an officer qualified to serve sub-
poenas.
(6) He may require that any or all persons,
firms and corporations, domestic and foreign, en-
gaged in operating any business enterprise in the
county shall submit, in connection with his or its
regular tax list, a detailed inventory, statement of
assets and liabilities, or other similar information
pertinent to the discovery of valuation of property
taxable in the county. Inventories, statements of
assets and liabilities or other information not ex-
pressly required by this act to be shown on the
tax list itself, secured by the supervisor under the
terms of this subdivision, shall not be open to
public inspection.
Any supervisor or other official disclosing infor-
mation so obtained, except as such disclosure may
be necessary in listing or assessing property or in
administrative or judicial proceedings relating to
such listing or assessing, shall be guilty of a mis-
demeanor and punishable by fine not exceeding fifty
dollars ($50.00).
(7) He shall have power, for good cause, and
prior to the first meeting of the board of equaliza-
tion and review, to change the valuation placed
upon any property by the list taker, provided such
property is subject to assessment for the current
year, and provided that notice of such change is
given to the taxpayer prior to the meeting of said
board.
(8) He shall perform such other duties as may
be imposed upon him by law, and shall have and
exercise all powers reasonably necessary in the
performance of his duties, not inconsistent with
the constitution or the laws of this state. (1937,
c. 291, s. 403.)
§ 7971(120). Appointment, qualifications, and
number of list takers and assessors. — Subject to
the approval of the county commissioners, the su-
13
§ 7971(121)
TAXATION
§ 7971(124)
pervisor, on or before the second Monday preced-
ing the date as of which property is to be assessed,
shall appoint some competent person to act as list
taker and assessor in each township. With the
approval of the commissioners he may appoint
more than one such person for any township in
which is situated an incorporated town or part of
an incorporated town. In quadrennial years three
such persons shall be appointed in each township,
and more than three may be appointed in town-
ships in which is located an incorporated town or
part of an incorporated town; and in such years,
at the time of their appointment, such appointees
shall have been resident freeholders of the county
for at least twelve months: Provided, that in any
county adopting the horizontal method of revalu-
ation in one thousand nine hundred and thirty-
seven, and quadrennially thereafter the commis-
sioners may appoint less than three list takers and
assessors per township: Provided further, that in
quadrennial years the board of county commis-
sioners may appoint one list taker and assessor in
each township if in addition thereto at least two
county-wide list takers and assessors are appointed.
In every year the persons appointed shall be per-
sons of character and integrity, and shall have
such experience in the valuation of types of prop-
erty commonly owned in the county as shall sat-
isfy the supervisor and the commissioners. (1937,
c. 291, s. 404.)
§ 7971(121). Term of office and compensation
of list takers and assessors. — The list takers and
assessors shall serve for such period as may be
fixed by the commission. They shall receive for
their services such compensation as the commis-
sioners may fix. No list taker shall receive com-
pensation until the supervisor has checked over the
lists accepted by him, as hereinafter required, and
certified that his work has been satisfactory. Each
list taker shall make out his account in detail,
specifying each day's services, which account shall
be audited by the county accountant and approved
by the commissioners. (1937, c. 291, s. 405.)
§ 7971(122). Oath of list takers and assessors.
— Before entering upon his duties each list taker
and assessor shall take the following oath, which
shall be filed with the clerk to the board of com-
missioners after having been subscribed and sworn
to before some officer qualified to administer oaths:
"I, , List Taker and Assessor for
Township, County, North Carolina, do
hereby solemnly swear (or affirm) that I will dis-
charge the duties of my office according to the
laws in force that govern said office; so help me,
God.
(Signature.)
(1937, c. 291, s. 406.)
§ 7971(123). Powers and duties of list takers
and assessors. — (1) At least ten days before the
date as of which property is to be assessed, each
list taker shall post, in five or more public places
in his township, a notice containing at least the
following: (a) the date as of which property is to
be assessed; (b) the date on which listing will be-
gin; (c) the date on which the listing will end;
(d) the times and places between the last two
dates mentioned at which lists will be accepted;
(e) a notice that all persons who, on the date as
of which property is to be assessed, own property
subject to taxation must list such property within
the period set forth in the notice, and that failure
to do so will subject such persons to the penalties
prescribed by law.
In townships in which more than one list taker
has been appointed the posting of these notices
shall be the duty of one of them, to be designated
by the supervisor.
In case the period of listing in any township
shall be extended by the commissioners, as here-
inafter permitted, it shall be the duty of the list
taker who first posted the notices to post new
notices in the same places, giving notice of the
extension and notice of the times and places at
which lists will be accepted during the extended
period.
(2) Each list taker shall attend the meeting re-
ferred to in sub-division three of section 7971(119).
(3) The list takers and assessors, under the su-
pervision of the supervisor, shall secure lists of
all real and personal property and polls subject to
taxation in their townships, and shall assess all
such property as is subject to assessment under
the provisions of this act. To this end they shall
secure from each taxpayer or person whose duty
it is to list property or poll in their respective
townships a list containing the information here-
inafter specified, and shall have the authority to
visit any such person or his property, to investi-
gate the value of any such property, and to ex-
amine under oath any such person present before
them for the purpose of listing property. The
supervisor may, in his discretion, require any list
taker and assessor to visit each person in his
township whose property or poll is subject to tax-
ation.
(4) Each list taker and assessor shall have
power to subpoena any person for examination
under oath whenever he has reasonable grounds
for belief that such person has knowledge which is
pertinent to the discovery or valuation of property
subject to taxation in his township or which is
necessary for compliance with the requirements,
hereinafter set forth, as to what the tax list shall
contain.
(5) The list takers and assessors shall perform
such duties in connection with the making up of
the tax records and in connection with the dis-
covery of unlisted property as hereinafter specified.
(6) The list takers and assessors shall perform
such other duties as may be by law imposed upon
them; and they shall have and exercise all powers
necessary to the proper discharge of their duties
not inconsistent with the constitution or the stat-
utes of this state. (1937, c. 291, s. 407.)
§ 7971(124). Employment of experts. — The
board of county commissioners in each county, at
the request of the county supervisor of taxation,
may in their discretion employ one or more per-
sons having expert knowledge of the value of
specific kinds or classes of property within the
county, such as mines, factories, mills and other
similar property, to aid and assist the county su-
pervisor of taxation and the list takers and asses-
sors in the respective townships, or to advise with,
aid and assist the board of equalization and review
in arriving at the true value in money of the prop-
[314]
§ 7971(125)
TAXATION
§ 7971(129)
erty in the county. Such expert, or experts, so
employed by the board of county commissioners
shall receive for their services such compensation
as the board of county commissioners shall desig-
nate. (1937, c. 291, s. 408.)
§ 7971(125). Clerical assistants.— The county
commissioners may, in their discretion, upon rec-
ommendation of the supervisor, employ such cleri-
cal assistants to the supervisor as they deem
proper, and at such compensation and for such
terms as they deem proper. Such assistants shall
perform such duties as the commissioners or the
supervisor may assign to them. (1937, c. 291, s.
409.)
§ 7971(126). Tax commission. — In all counties
having a tax commission, said commission shall
do and perform all the duties required by this act
to be performed by county commissioners except
levying taxes, and all expenses incurred by said
tax commission or its appointees in accordance
with this act shall be paid by the county commis-
sioners out of the general county funds. (1937,
c. 291, s. 410.)
Part 5. Uniform ad Valorem Taxation
§ 7971(127). Taxes to be on uniform ad valorem
basis. — All property, real and personal, shall, as
far as practicable, be valued at its true value in
money, and taxes levied by all counties, municipali-
ties and other local taxing authorities shall be
levied uniformly on valuations so determined.
The intent and purpose of this act is to have all
property and subjects of taxation assessed at their
true and actual value in money, in such manner as
such property and subjects are usually sold, but
not by forced sale thereof, and the words "market
value," "true value," or "cash value," whenever
used in the tax laws of this state, shall be held to
mean for what the property and subjects can be
transmuted into, cash when sold in such manner as
such property and subjects are usually sold. (1937,
c. 291, s. 500.)
§ 7971(128). Land and buildings.— In deter-
mining the value of land the assessors shall con-
sider as to each tract, parcel or lot separately listed
at least its advantages as to location, quality of
soil, quantity and quality of timber, water power,
water privileges, mineral or quarry or other valua-
ble deposits, fertility, adaptability for agricultural,
commercial or industrial uses, the past income
therefrom, its probable future income, the present
assessed valuation, and any other factors which
may affect its value.
In determining the value of a building the as-
sessors shall consider at least its location, type of
construction, age, replacement cost, adaptability
for residence, commercial or industrial uses, the
past income therefrom, the probable future in-
come, the present assessed value, and any other
factors which may affect its value. Buildings
partially completed shall be assessed in accord-
ance with the degree of completion on the day as
of which property is assessed. (1937, c. 291, s.
501.)
Part 6. Exemptions and Deductions
§ 7971(129). Real property exempt. — The fol-
lowing real property, and no other, shall be
exempted from taxation:
(1) Real property, if directly or indirectly owned
by the United States or this state, however held,
and real property owned by the state for the bene-
fit of any general or special fund of the state, and
real property lawfully owned and held by coun-
ties, cities, townships, or school districts, used
wholly and exclusively for public or school pur-
poses.
(2) Real property, tombs, vaults and mauso-
leums set apart for burial purposes, except such as
are owned and held for purposes of sale or rental.
(3) Buildings, with the land upon which they are
situated, lawfully owned and held by churches or
religious bodies, wholly and exclusively used for
religious worship or for the residence of the
minister of any such church or religious body, to-
gether with the additional adjacent land reason-
ably necessary for the convenient use of any such
building.
(4) Buildings, with the land actually occupied,
wholly devoted to educational purposes, belonging
| to, actually and exclusively occupied and used for
public libraries, colleges, academies, industrial
schools, seminaries, or any other institutions of
learning, together with such additional adjacent
land owned by such libraries and educational in-
stitutions as may be reasonably necessary for the
convenient use of such buildings, .and also- the
buildings thereon used as residences by the officers
or instructors of such educational institutions.
(5) Real property belonging to, actually and
exclusively occupied by Young Men's Christian
Associations and other similar religious associa-
tions, orphanages, or other similar homes, hospitals
and nunneries not conducted for profit, but entirely
and completely as charitable.
(6) Buildings, with the land actually occupied,
belonging to the American Legion or Post of the
American Legion or any benevolent, patriotic, his-
torical, or charitable association used exclusively
for lodge purposes by said societies or associations,
together with such additional adjacent land as may
be necessary for the convenient use of the build-
ings thereon.
(7) Property beneficially belonging to or held
for the benefit of churches, religious societies,
charitable, educational, literary, benevolent, patri-
otic or historical institutions or orders, where the
rent, interest or income from such investment shall
be used exclusively for religious, charitable, edu-
cational or benevolent purposes, or to pay the
principal or interest of the indebtedness of said in-
stitutions or orders.
(8) The exemptions granted in sub-sections
three, four, five, six, and seven of this section shall
apply to real property of foreign religious, charit-
able, educational, literary, benevolent, patriotic or
historical corporations, institutions or orders when
such property is exclusively used for or the income
therefrom is exclusively used for religious, charit-
able, educational or benevolent purposes within
this state.
(9) The real property of Indians who are not
citizens, except lands held by them by purchase.
(10) Real property falling within the provisions
of section one thousand one hundred and twenty-
three of the Consolidated Statutes, appropriated
exclusively for public parks and drives. (1937, c.
291, s. 600.)
Editor's Note. — By an interpretation of the Code of 1935,
[ 315
§ 7971(130)
TAXATION
§ 7971(131)
§ 7971(87) which some thought to be unnecessarily literal,
the court had held foreign eleemosynary corporations de-
prived of the exemptions otherwise granted to such organ-
izations on property used in their work in the state. Cath-
olic Soc. v. Gentry, 210 N. C. 579, 187 S. F. 795. The ex-
emptions are now granted in specific terms by subsection
(8) of this and the following section. 15 N. C. I,aw Rev.,
No. 4, p. 391.
For act placing Gaston county under provisions of former
statute relating to taxation of private hospitals, see Public
Ivaws 1937, c. 60.
§ 7971(130). Personal property exempt. — The
following personal property, and no other, shall be
exempt from taxation:
(1) Bonds of this state, of the United States,
federal farm loan bonds, joint-stock land bank
bonds, and bonds of political sub-divisions of this
state, hereafter issued: provided, that the purchase
of tax-exempted bonds within sixty days before
the tax-listing date and sale of the same within
sixty days after the tax-listing date, or the pur-
chase of tax-exempted bonds prior to the tax-listing
date, with the understanding that the seller will on
request repurchase them after the tax-listing date
at a price not lower than a figure specified in the
original understanding, shall be prima facie evi-
dence that said bonds were purchased for the pur-
pose of evading taxation, and a solvent credit in
the amount of the value of the same will be listed
and liable for taxation.
(2) Personal property, directly or indirectly
owned by this state and by the United States, and
that lawfully owned and held by the counties,
cities, towns, and school districts of the state, used
wholly .and exclusively for county, city, town, or
public school purposes.
(3) The furniture and furnishings of buildings
lawfully owned and held by churches or religious
bodies, wholly and exclusively used for religious
worship or for the residence of the minister of any
church or religious body, and private libraries of
such ministers and the teachers of the public
schools of this state.
(4) The furniture, furnishings, books, and in-
struments contained in buildings wholly devoted
to educational purposes, belonging to and ex-
clusively used by churches, public libraries, col-
leges, academies, industrial schools, seminaries, or
other institutions.
(5) The endowment and invested funds of
churches and other religious associations, charit-
able, educational, literary, benevolent, patriotic or
historical institutions, associations or orders, when
the interest or income from said funds shall be
used wholly and exclusively for religious, charit-
able, educational or benevolent purposes, or to pay
the principal or interest of the indebtedness of said
associations.
(6) Personal property belonging to Young Men's
Christian Associations and other similar religious
associations, orphan and other similar homes, re-
formatories, hospitals, and nunneries which are not
conducted for profit and entirely and completely
used for charitable and benevolent purposes.
(7) The furniture, furnishings, and other per-
sonal property belonging to any American Legion,
or Post of American Legion, patriotic, historical,
or any benevolent or charitable association, when
used wholly for lodge purposes and meeting rooms
by said association or when such personal prop-
erty is used for charitable or benevolent purposes.
(8) The exemptions granted in sub-sections
three, four, five, six, ,and seven of this section shall
apply to personal property of foreign religious,
charitable, educational, literary, benevolent, patri-
otic or historical corporations, institutions or or-
ders when such property is exclusively used or the
income therefrom is exclusively used for religious,
charitable, educational or benevolent purposes
within this state.
(9) Wearing apparel, household and kitchen
furniture, the mechanical and agricultural instru-
ments of farmers and mechanics, libraries and
scientific instruments, provisions and livestock,
not exceeding the total value of three hundred
dollars ($300.00), and all growing crops.
(10) Shares of stock owned by individual stock-
holders in any domestic corporation, joint-stock
association, limited partnership, or company pay-
ing a tax on its entire capital stock shall not be
required to be listed or to pay an ad valorem tax;
and shares of stock owned and legally held on and
continuously held for at least ninety days just prior
to the tax-listing day by a corporation in any
other corporation paying a tax on its entire capital
stock shall not be required to be listed or to pay
an ad valorem tax. Nor shall any individual stock-
holder of any foreign corporation be required to
list or pay taxes on any share of its capital stock
in this state, providing the owner of such shares
of stock has complied with the provisions of the
Revenue Act, and the situs of such shares of stock
in foreign corporations owned by residents of this
state, for the purposes of this act, is hereby de-
clared to be at the place where said corporation
undertakes and carries on its principal business.
(1937, c. 291. s. 601.)
School bonds of a city in this state in the hands of an
investor residing in a county in this state held not subject
to be locallv assessed for taxation. Mecklenburg County v.
Piedmont Fire Ins. Co., 210 N. C. 171, 178, 185 S. F. 654,
construing former § 7971(19), which was similar to the in-
stant section.
§ 7971(131). Deductions and credits.— (1) All
bona fide indebtedness owing by a taxpayer as
principal debtor may be deducted by the list taker
from the aggregate amount of the taxpayer's
credits shown in items twenty-two, twenty-four,
twenty-five, and twenty-six of section 7971(139):
Provided, that such indebtedness may be deducted
from the credits enumerated in item twenty-two
only by the original producer of the articles named,
and such indebtedness may be deducted from the
credits enumerated in item twenty-four only in the
case of fertilizer or fertilizer materials held by the
taxpayer for his own use in agriculture during the
current year.
No taxpayer shall be allowed to deduct more
than his proportionate share of joint or joint and
several debts unless upon a satisfactory showing
that other obligors are insolvent.
For purposes of this sub-section the following
shall not be regarded as bona fide indebtedness:
(a) taxes of any kind owed by the taxpayer; (b)
debts incurred to purchase assets which are not
subject to taxation at the situs of such assets; (c)
reserves, secondary liabilities and contingent lia-
bilities, unless upon a satisfactory showing that
the taxpayer will actually be compelled to pay the
debt or liability; (d) debts owed by a corporation
to another corporation of which it is parent or
subsidiary or with which it is closely affiliated by
[316]
§ 7971(132)
TAXATION
§ 7971(134)
stock ownership, unless the credits created by such
debts are listed for taxation at the situs of such
credits.
(2) Private hospitals shall not be exempt from
property taxes and other taxes lawfully imposed,
but in consideration of the large amount of charity
work done by them, the boards of commissioners
of the several counties are authorized and directed
to accept, as valid claims against the county, the
bills of such hospitals for attention and services
voluntarily rendered to afflicted or injured resi-
dents of the county who are indigent and likely to
become public charges, when such bills are duly
itemized and sworn to and are approved by the
county physician or health officer .as necessary or
proper; and the same shall be allowed as payments
on and credits against all taxes which may be or
become due by such hospital on properties strictly
used for hospital purposes, but to that extent only
will the county be liable for such hospital bills:
Provided, that the board of aldermen or other
governing boards of cities and towns shall allow
similar bills against the municipal taxes for at-
tention and services voluntarily rendered by such
hospitals to paupers or other indigent persons
resident in any such city or town: Provided further,
that the governing boards of cities and towns shall
require a sworn statement to the effect that such
bills have not and will not be presented to any
board of county commissioners as a debt against
that county, or as a credit on taxes due that county.
The provisions of this sub-section shall not apply
to the counties of Rockingham and Buncombe,
nor to the cities and towns in said counties. (1937,
c. 291, s. 602.)
§ 7971(132). Article subordinate to § 7880-
(156)oo et seq. — None of the provisions contained
in any of the sections of this article shall be con-
strued to conflict with Article VIII, Schedule H,
of the Revenue Act [§ 7880(156)oo et seq.], but
rather shall they be subordinate thereto. (1937, c.
291, s. 603.)
Part 7. Real Property — Where and in Whose
Name Listed
§ 7971(133). Place for listing real property.—
All real property subject to taxation, and not here-
inafter required to be assessed originally by the
state board of assessment, shall be listed in the
township or place where such property is situated.
(1937, c. 291, s. 700.)
§ 7971(134). In whose name real property to
be listed; information regarding ownership; perma-
nent listing. — (1) Except as hereinafter specified,
real property shall be listed in the name of its
owner; and it shall be the duty of the owner to
list the same. To this end the board of county
commissioners in any county may require the
register of deeds, when any transfer of title is re-
corded, other than a mortgage or deed of trust,
to certify the same to the supervisor (or if there
be no supervisor acting at the time, to the person
in charge of the tax records), and the record of
the transfer shall be entered upon the tax records.
The certification from the register to the super-
visor or other person shall include the name of the
person conveying the property, the name of the
person to whom it is conveyed, the township in
which the property is situated, a description of
the property sufficient to identify it, and a state-
ment as to whether the parcel is conveyed in whole
or in part. For his services in this respect the
register shall be allowed, if on fees, the sum of
ten cents (10c) per transfer certified, to be paid by
the county, and if on salary, such allowance as
may be made by the board of commissioners.
It shall also be within the power of any board
of commissioners, in its discretion, to require that
each person recording such conveyance of real
property shall, before presenting it to the register
of deeds, present it to the person in charge of the
tax records, in order that the conveyance may be
noted on the tax records and in order that adequate
information concerning the location of the prop-
erty may be obtained from the person recording
the conveyance. If such presentation is required
by the commissioners of any county, the register
of deeds of that county shall not accept for re-
cording any conveyance which has not first been
submitted to the person in charge of the tax rec-
ords and such person has obtained information for
the tax records which he regards as satisfactory.
The commissioners may allow the person in charge
of the tax records such compensation for this
service as they deem appropriate, but they shall
not require the person presenting the deed to pay
any fee therefor.
It shall also be within the power of the com-
missioners to authorize the installation of a system
for the permanent listing of real estate, under
which all real estate may be carried forward by
the supervisor, the list takers or some person or
persons designated by the supervisor, in the name
of the proper person as defined by this act, with-
out requiring that such real estate be listed each
year by such person. No such system shall be
installed without the approval of the state board
of assessment; and when such a system is installed,
with the approval of the board, the board may
authorize the commisioners to make such modi-
fications of the listing requirements of this act as
the board may deem necessary: Provided, that
nothing herein shall require the board's approval
for any such system installed prior to the ratifica-
tion of this act.
Any county may, in the discretion of the com-
missioners, require that all real estate be listed
only in the name of the owner of record at the
close of the day as of which property is listed and
assessed.
(2) For purposes of tax listing and assessing
the owner of the equity of redemption in any prop-
erty which is subject to a mortgage or deed of
trust shall be considered the owner of such real
estate.
(3) Real property of which a decedent died pos-
sessed, not under the control of an executor or
administrator, may be assessed to the heirs or
devisees of the deceased without naming them un-
til they have given notice of their respective names
to the supervisor and of the division of the estate.
It shall be the duty of any executor or administra-
tor having control of real property to list it in his
fiduciary capacity until he shall have been divested
of control of such property. The right of an ad-
ministrator, administering upon the estate of an
intestate decedent, to petition for the sale of real
estate to make assets shall not be considered as
[317]
§ 7971(135)
TAXATION
§ 787 1(136>
control of such real estate for purposes of this
sub-division.
(4) A trustee, guardian or other fiduciary hav-
ing legal title to real property shall be regarded as
the owner of such property for purposes of tax
listing, except as elsewhere in this section pro-
vided, and he shall list such property in his fiduci-
ary capacity.
(5) Where undivided interests in real property
are owned by tenants in common, not being a co-
partners, the supervisor, upon request and in his
discretion, may allow the property to be listed by
the respective owners in accordance with their
respective undivided interests.
(6) Real property belonging to a partnership
or unincorporated association shall be listed in the
name of such partnership or association.
(7) Real property owned by a corporation shall
be listed in the name of the corporation.
(8) When land is owned by one party and im-
provements thereon or mineral, timber, quarry,
water power or similar rights therein are owned
by another party the parties may list their interests
separately or may, in accordance with contractual
relations between them, have the entire property
listed in the name of the owner of the land. Where
in such a case the land and improvements or rights
are listed by the separate owners, the taxes levied
on the improvements, or rights, shall be a lien on
the land, and the land shall be subject to fore-
closure for nonpayment of such taxes in the same
manner as if such taxes were levied directly against
said land: Provided, nothing herein contained shall
prevent said taxes from being also a lien on said
improvements, or rights.
(9) A life tenant or tenant for the life of an-
other shall be considered the owner of real prop-
erty for purposes of tax listing, but he shall indi-
cate when listing such property that he is a life
tenant. The taxes levied on property listed in the
name of a life tenant shall be a lien on the entire
fee: Provided, that this shall not prevent the life
tenant from being liable for the taxes under sec-
tion seven thousand nine hundred and eighty-two
of the Consolidated Statutes.
(10) If the owner or person in whose name the
real property should properly be listed, as set forth
in the foregoing sub-divisions of this section, is
unknown, the property may be listed in the name
of the occupant, and either or both shall be liable
for the taxes; and if there be no occupant, then it
may be listed as property the owner of which is
unknown: Provided, that wherever the property
is so listed against the occupant or an unknown
owner, or through error the property has been
listed against some person other than the owner
as defined in this section, and the name of the true
owner is subsequently ascertained, the tax records
may be changed so as to list said property against
the owner, and the change shall have the same
force and effect as if the property had been listed
against the owner in the first instance. (1937, c.
291, s. 701.)
Part 8. Personal Property — Where and in Whose
Name Listed
§ 7971(135). Place for listing tangible personal
property. — (1) In general, all tangible personal
property and polls shall be listed at the residence
of the owner, except as otherwise provided in this
T3
section. For purposes of this section the residence
of a person who has two or more places in which
he occasionally dwells shall be the place at which
he resided for the longest period of time during
the year preceding the date as of which property
is assessed. The residence of a corporation, part-
nership or unincorporated association, domestic
or foreign, shall be the place of its principal office
in this state, and if a corporation, partnership or
unincorporated association has no principal office
in this state, its tangible personal property may
be listed at any place at which said property is
situated, provided said property has a taxable situs
within the state.
(2) Farm products produced in this state, owned
by the producers, shall be listed where produced.
(3) Tangible personal property taxable in this
state, owned by an individual non-resident of this
state, shall be listed where situated.
(4) Subject to the provisions of sub-section (2)
of this section, tangible personal property shall be
listed at the place where such property is situated,
rather than at the residence of the owner, if the
owner or person having control thereof hires or
occupies a store, mill, dockyard, piling ground,
place for the sale of property, shop, office, mine,
farm, place for storage, manufactory or warehouse
therein for use in connection with such property.
Property stored in public warehouses and mer-
chandise in the possession of a consignee or broker
shall be regarded as falling within the provisions
of this sub-division.
(5) The tangible personal property of a dece-
dent whose estate is in the process of administra-
tion or has not been distributed shall be listed at
the place at which it would be listed if the de-
cedent were still alive and still residing at the
place at which he resided at the time of his death.
(6) Tangible personal property held by a trus-
tee, guardian or other fiduciary having legal title
thereto shall be listed at the place where such
property would be listed if the beneficiary were the
owner; and if there are several beneficiaries in a
case in which such property would be listed at the
residence of the owner, the value of the property
shall be listed at the various residences of the
beneficiaries in accordance with their respective
interests. This sub-division shall affect only cases
in which the beneficiaries are residents of this
state, but it shall apply whether the fiduciary is
a resident or non-resident of this state. Property
delivered by executors or administrators to them-
selves or other as testamentary trustees shall be
controlled by this sub-section rather than by sub-
section (5) of this section.
(7) In any case where the beneficiary is a non-
resident of this state, tangible personal property
having a taxable situs in this state, held by a trus-
tee, guardian or other fiduciary having legal title,
shall be listed at the place it would be listed if the
trustee or other fiduciary were the beneficial
owner of such property. (1937, c. 291, s. 800.)
§ 7971(136). Place for listing intangible prop-
erty.— (1) Intangible property of an individual
resident of this state shall be listed at the resi-
dence of the owner. For purposes of this sub-
division the residence of a person who has two or
more places in which he occasionally dwells shall
be the place at which he resided for the longest
18]
§ 7971(137)
TAXATION
§ 7971(139)
period of time during the year preceding the day
as of which property is assessed.
(2) Intangible property of a decedent whose es-
tate is in process of administration or has not
(been distributed shall be listed at the place of
which the decedent died a resident, unless such
decedent was a non-resident of this state, in which
case said property shall be listed at the residence
of the executor or administrator.
(3) Intangible property held by a trustee, guard-
ian or other fiduciary having legal title to the
property shall be listed at the residence of the ben-
eficiary, if the beneficiary is a resident of this
state; and if there are several beneficiaries, the
value of the property shall be divided between
their various residences in accordance with their
respective interests, and any deductions therefrom
shall be prorated in the same manner. If the ben-
eficiary is a non-resident of the state, but the fi-
duciary is a resident of the state, the property
shall be listed at the residence of the fiduciary.
Intangible property delivered by executors or ad-
ministrators to themselves or others as trustees
shall be governed by this sub-section rather than
sub-section (2) hereof.
(4) Intangible property of a domestic corpora-
tion, partnership, firm or unincorporated associa-
tion shall be listed at the principal office of said
corporation, partnership, firm or association in
this state. If such corporation, partnership, firm
or association has no principal office in this state,
its intangible property may be listed in any county
in which it transacts business.
(5) Every non-resident individual, foreign cor-
poration, partnership, firm, business establishment,
or unincorporated association doing business in
this state shall list, at its principal office in the
state, all intangible property which has acquired a
business situs in this state. If such person, cor-
poration, partnership, firm, business establishment
or unincorporated association has no principal of-
fice in this state, such intangible property shall be
listed in any county in which business is trans-
acted.
(6) Intangible property actually and perma-
nently invested in business in another state need
not be listed at any place in this state. (1937, c.
291, s. 801.)
§ 7971(137). In whose name personal property
should be listed. — (i) In general, personal prop-
erty shall be listed in the name of the owner there-
of on the day as of which property is assessed;
and it shall be the duty of the owner to list the
same. The owner of the equity of redemption in
personal property subject to a chattel mortgage
shall be considered the owner of the property; and
the vendee of personal property under a condi-
tional bill of sale, or under any other sale con-
tract by virtue of which title to the property is
retained in the vendor as security for the payment
of the purchase price, shall be considered the
owner of the property, provided he has possession
of such property or the right to use the same.
(2) Personal property of a corporation, partner-
ship, firm or unincorporated association shall be
listed in the name of such corporation, partner-
ship, firm, or unincorporated association.
(3) Personal property of which a decedent died
possessed, not under the control of an executor or
administrator, may be assessed to the next of kin
or legatees of the decedent without naming them
until they have given notice of their respective
names to the supervisor and have likewise given
notice of the distribution of the estate; and for
this purpose such next of kin or legatees may be
designated as "heirs." It shall be the duty of an
executor or administrator having control of such
property to list it in his fiduciary capacity until
he shall have been divested of such control.
(4) A trustee, guardian, or other fiduciary hav-
ing legal title to personal property shall be re-
garded as the owner thereof for purposes of this
section.
(5) In cases in which two or more persons are
joint owners of personal property, each shall list
the value of his interest.
(6) If any dispute shall arise as to the true
owner of personal property, the person in posses-
sion thereof shall be regarded as the owner unless
the list taker or supervisor shall be convinced that
some other person is the true owner. (1937, c.
291, s. 802.)
§ 7971(138). Article not in conflict with §
7880(156)oo et seq. — None of the provisions con-
tained in any of the sections of this article shall
be construed to conflict with Article VIII, Sched-
ule H, of the Revenue Act [§ 7880(156)oo et
seq.], but rather shall they be subordinate thereto.
(1937, c. 291, s. 803.)
Part 9. What Tax List Shall Contain and Mis-
cellaneous Matters Affecting Listing
§ 7971(139). What the tax list shall contain.—
Each taxpayer or person whose duty it is to list
property for taxation shall file with the proper list
taker a tax list setting forth, as of the day on
which property is assessed, the following informa-
tion:
(1) The name and residence address of the tax-
payer.
(2) The age of the taxpayer, if he is a male tax-
payer, listing in the township of his residence.
(3) Each parcel of real property owned or con-
trolled in the township, not sub-divided into lots,
together with the number of acres cleared for cul-
tivation, waste land, woods and timber, mineral,
quarry lands, and lands susceptible of develop-
ment for water power, and the total acreage.
Each separate parcel shall be described by name,
if it has one, and by specifying at least two ad-
joining landowners, or by such other description
as shall be sufficient to locate and identify said
land by parol testimony. If all or part of such
land shall lie within the boundaries of any incor-
porated town or any district in which a special tax
is levied, such fact shall be specified.
(4) Each parcel of manufacturing property
owned or controlled in the township, not sub-di-
vided into lots, together with the number of acres
in said parcel or the dimensions thereof, the name
of such parcel, if any, and the names of at least
two adjoining landowners, or such other descrip-
tion as shall be sufficient to locate and identify
said property by parol testimony. If all or part
of such land shall lie within the boundaries of any
incorporated town or any district in which a spe-
cial tax is levied, such fact shall be specified.
(5) Each lot owned or controlled in the town-
ship, together with the dimensions of said lot, the
location of said lot, its street number, if any, its
319]
§ 7971(140)
TAXATION
§ 7971(140)
number or location on any map filed in the office
of the register of deeds, or such other description
as shall be sufficient to locate and identify it by
parol testimony. If any such lot shall lie within
the boundaries of an incorporated town or any
district in which a special tax is levied, such fact
shall be specified.
(6) In conjunction with the listing of any real
property listed under sub-divisions (3), (4), or
(5) of this section, a short description of any im-
provements thereon, belonging to the taxpayer
listing such real property, shall be given. And if
some person other than the taxpayer listing such
real property shall own mineral, quarry, timber,
water power or other separate rights with respect
thereto, or shall own any improvements thereon,
such fact shall be specified, together with the
name of the person owning such rights or im-
provements, and a short description of such rights
or improvements; though the owner of the land
may or may not list such separate rights or im-
provements for taxes, in accordance with the pro-
visions of this act.
(7) All mineral, quarry, timber, water power or
other separate rights owned by the taxpayer with
respect to the lands of another, and all improve-
ments owned by such taxpayer located upon the
lands of another. Such rights or improvements
shall be listed separately with respect to each
parcel or lot of land which is listed separately by
the owner thereof, and such parcel or lot shall be
identified in the same manner as it is identified on
the tax list of the person listing the same: Pro-
vided, that such rights or improvements shall not
be taxed against the owner thereof if, under the
provisions of this act, they are listed for taxes by
the owner of the land.
(8) Every person listing real property shall list,
in connection with each parcel or lot, every en-
cumbrance thereon, together with the amount due
on such encumbrance and the name and address
of the person to whom such amount is due.
(9) The amount and value of all machinery and
fixtures.
(10) A special description of any improvements,
having a value in excess of one hundred ($100.00)
dollars, which have been begun, erected, damaged
or destroyed since the time of the last assessment
of such property.
(11) A list of horses, mules, jacks and jennets,
cattle, hogs, sheep, goats and other livestock,
poultry and dogs, with the number and value of
each class shown separately.
(12) The number of open female dogs and the
number of other dogs.
(13) The amount and value of farm machinery,
farm utensils, and carriages, carts, wagons, bug-
gies, or other vehicles and harness.
(14) The amount and value of household and
kitchen furniture, libraries, scientific instruments,
tools of mechanics, wearing apparel, and pro-
visions of all kinds.
(15) The amount and value of merchandise,
manufactured goods, or goods in the process of
manufacture. This sub-division is intended to in-
clude all tangible personal property whatever held
for the purpose of sale or exchange or held for
use in the business of the taxpayer.
(16) The amount and value of all office furni-
ture, fixtures and equipment.
(17) The number and value of all motor ve-
hicles, tractors, trailers, bicycles, flying machines,
pleasure boats of any and all kinds, and their ap-
pliances.
(18) The number and value of all seines, nets,
fishing tackle, boats, barges, schooners, vessels,
and all other floating property.
(19) The number and value of billboards and
signboards and the value of other property used
in outdoor advertising.
(20) The number and value of radios, talking
machines and musical instruments.
(21) The value of plated or silverware, clocks,
watches, firearms and jewelry.
(22) The amount and value of all cotton, to-
bacco or other farm products owned by the origi-
nal producer, or held by the original producer in
any public warehouse and represented by ware-
house receipts, or held by the original producer
for any co-operative marketing or grower's asso-
ciation, together with a statement of the amount
of any advance against said products.
(23) The amount and value of all other cotton,
tobacco or other farm products.
(24) The amount and value of all fertilizer and
fertilizer materials.
(25) The amount of all money on hand.
(26) All solvent credits, with accrued interest
thereon, whether money or deposit, postal savings,
securities, mortgages, bonds, notes, bills of ex-
change, certified checks, accounts receivable, an-
nuities, royalties or in whatever other form of
credit, not especially exempted by law, and
whether owing by any state or government,
county, city, town, township, district, person, per-
sons, company, firm, or corporation within or
without the state.
(27) An itemized list of all debts of the taxpayer
claimed as a deduction under the provisions of
this act, together with the amount of each debt
and the name and address of the person to whom
such debt is owing.
(28) The value and a description of all other
property whatever, not especially exempted by
law.
(29) An itemized list of any type of personal
property when such itemization is required by the
list taker or supervisor.
(30) A statement setting forth a list of license
taxes for which the person, firm or corporation
listing may be liable to the state under the provi-
sions of Schedule "B" of the Revenue Act [§
7880(30) et seq.].
(31) The oath of the taxpayer hereinafter set
forth. (1937, c. 291, s. 900.)
An amount set apart by a mutual insurance company as
a reserve for the rebate of unearned premiums to its policy-
holders upon cancellation of policies in accordance with its
by-laws is properly deducted by the insurance company in
listing its solvent credits for taxation. Hardware Mut. Fire
Ins. Co. v. Stinson, 210 N. C. 69, 185 S. E. 449, construing
former § 7971(46), now repealed.
§ 7971(140). Duty to list; penalty for failure;
special penalty for failure to list solvent credits. —
It shall be the duty of every person, firm or cor-
poration, in whose name any property or poll is
to be listed under the terms of this act, to list said
property or poll with the proper list taker or the
supervisor, within the time allowed by law, on a
list setting forth the information required by this
act. In addition to all other penalties prescribed
[320]
§ 7971(141)
TAXATION
§ 7971(148)
by law, any person, firm or corporation whose
duty it shall be to list any poll or property, real
or personal, who wilfully fails, refuses or neglects
to list the same within the time allowed by law,
or who removes or conceals property for the pur-
pose of evading taxation, shall be guilty of a mis-
demeanor; and any person, firm or corporation
aiding or abetting the removal or concealment of
property for the purpose of evading taxation shall
be guilty of a misdemeanor. The failure to list
shall be prima facie evidence that such failure was
wilful, and the board of county commissioners
shall present the names of all such persons, firms
and corporations to the grand jury.
If any person, firm or corporation, with a view
to evading the payment of taxes, shall fail or re-
fuse to list with the list taker or supervisor any
bonds, notes, accounts receivable or other solvent
credits subject to taxation under this act, the same
shall not be recoverable at law or by suit in eq-
uity in any court in this state unless they shall be
listed, and the tax and all penalties thereon com-
pletely paid, prior to the time of the beginning of
such action at law or suit in equity. (1937, c. 291,
s. 901.)
§ 7971(141). Oath of the taxpayer.— Before ac-
cepting any completed tax list, it shall be the duty
of the list taker to read and actually to administer
the following oath (or so much thereof as may be
pertinent) which shall be subscribed by the per-
son filing the list:
"I, , do solemnly swear (or affirm)
(that I am an officer or agent of the taxpayer
named on the attached list, that as such I am duly
authorized to submit said list, that I am familiar
with the extent and value of all said taxpayer's
property subject to taxation in this township) that
the above and foregoing list is a full, true and
complete list of all and each kind of property
which it is the duty of the above-named taxpayer
to list as owner or fiduciary, as said list indicates,
in Township, County, North
Carolina; and that I have not in any way connived
at the violation or evasion of requirements of law
in relation to the assessment of property; so help
me, God.
(Signature)
So much of the foregoing oath as appears in the
second parentheses shall be used only in cases in
which the list is submitted by an officer or agent.
Any list taker who accepts a list without admin-
istering said oath shall be guilty of a misdemean-
or. (1937, c, 291, s. 902.)
§ 7971(142). Listing by agents. — Corporations,
partnerships, firms and unincorporated associa-
tions, females, non-residents of the township in
which the property is to be listed, and persons
physically unable to attend and file a list may
have their lists submitted and sworn to by an of-
ficer or agent; but the list shall be filed in the
name of the principal. (1937, c. 291, s. 903.)
§ 7971(143). Listing by mail, — All tax lists
submitted by mail must be accompanied by the
oath of the taxpayer, as prescribed in this act,
duly sworn to before a notary public or other of-
ficer authorized to administer oaths, and must be
mailed to the supervisor. The supervisor may ac-
cept or reject any such list in his discretion.
(1937, c. 291, s. 904.)
§ 7971(144). Length of the listing period; pre-
liminary work. — . Tax listing shall begin on the
day as of which property is assessed (or on the
first business day thereafter if said day is a Sun-
day or a holiday) and shall continue for thirty days.
The board of county commissioners of any county
may extend the time for listing for not more than
an additional thirty days: Provided, that in yearsi
of quadrennial assessment the board of county
commissioners may extend the time for listing for
not more than an additional sixty days.
Nothing in this section shall be construed to
prevent any preparatory work, prior to the begin-
ning of listing, which may be necessary or ex-
pedient in connection with an efficient listing or
assessing of property; nor shall it prevent the as-
sessment of real property by the list takers prior
to the actual time at which it is listed by its owner
or carried forward on the tax records: Provided,
that no final assessment shall be made by a list
taker prior to the day as of which property is re-
quired by law to be assessed. (1937, c. 291, s.
905.)
§ 7971(145). Records of tax exempt property.
— The person making up the tax records shall en-
ter, in regular order, the name of the owner, a
clear description of all real and personal property
exempt from taxation, together with statement of
its value, for what purpose used, and the rent, if
any, obtained therefrom. Each list taker shall se-
cure the necessary information with respect to
such property in his township. The list of such
exempt property, when completed, shall be deliv-
ered by the county supervisor of taxation to the
register of deeds of the county on or before the
first day of October, and the register of deeds, on
or before the first day of November, shall make
duplicates thereof and transmit such duplicates to
the state board of assessment and shall file the
original list of exempt property in his office,
(1937, c. 291, s. 906.)
§ 7971(146). Forms for listing and assessing
property. — All forms and books used in the list-
ing and assessing of property for taxation shall
have the approval of the state board of assess-
ment. The board may, in its discretion, design
and prescribe such forms and make arrangements
for their purchase and distribution through the
division of purchase and contract, the cost of same
being billed to the counties. (1937, c. 291, s.
907.)
§ 7971(147). Article subordinate to § 7880-
(156) oo et seq. — None of the provisions contained
in any of the sections of this article shall be con-
strued to conflict with Article VIII, Schedule H,
of the Revenue Act ['§ 7880(l56)oo et seq.], but
rather shall they be subordinate thereto. (1937,
c. 291, s. 908.)
Part 10. Special Provisions Affecting Motor Ve-
hicle Owners, Warehousemen, etc.
§ 7971(148). Information to be given by mo-
tor vehicle owners applying for license tags. —
Every motor vehicle owner applying to the state
department of revenue for motor vehicle license
tags shall specify in the application the county in
N. C, Supp.— 21
[ 321
§ 7971(149)
TAXATION
§ 7971(152)
which each such motor vehicle is subject to ad
valorem taxation. If any such vehicle is not sub-
ject to ad valorem taxation in any county of this
state, such fact, with the reason therefor, shall be
stated in the application. No state license tags
shall be issued to any applicant until the require-
ments of this sub-division have been met. The
commissioner of revenue shall, upon request from
any county, send to the supervisor of such county
a list of motor vehicles subject to ad valorem tax-
ation in such county as shown by the commission-
er's records of applications filed during the year
preceding the day as of which property is to be
assessed, and shall charge the county the sum of
thirty cents (30c) per hundred names for the
same, said amount to be used by the commissioner
as compensation for the preparation of said list.
(1937, c. 291, s. 1000.)
§ 7971(149). Warehouses and co-operative
growers' or marketing associations to furnish
lists. — (1) Every warehouse company or corpora-
tion and every growers' or marketing association
receiving for storage cotton, tobacco or other
products, commodities or property, and issuing
warehouse receipts for same, shall, on the day as
of which property is assessed, furnish to the su-
pervisor of the county in which such property is
stored a full and complete list of all persons, cor-
porations, partnerships, firms or associations for
whom such property is stored, except in cases in
which farm produce is stored for its original pro-
ducer who is a resident of another county in this
state, together with the amount of such property
stored for each owner and the amount advanced
against such property by the warehouse or asso-
ciation. In all cases in which farm produce is
stored for its original producer, who is a resident
of another county in this state, the names of such
producers shall be sent to the supervisors of the
respective counties in which such producers re-
side, together with the amount of such produce
stored for them and the amount advanced against
such produce by the warehouse or association.
(2) Warehouse companies and corporations and
growers' and marketing associations shall not be
liable for taxation on the property stored with
them by others, provided lists of the owners and
amounts of such property are furnished to the re-
spective supervisors under the provisions of sub-
division (1) of this section. If such lists are not
so furnished within fifteen days after the day as
of which property is assessed, such warehouse or
association shall be liable to the respective coun-
ties for the tax upon the full value of such prop-
erty; and if failure to furnish such list is contin-
ued for ten days after demand for same by the
supervisor of any county, such warehouse or as-
sociation shall be liable for a penalty of two hun-
dred fifty dollars ($250.00), in addition to the
taxes, to be recovered by the proper county in an
action in the superior court, and both tax and
penalty may be recovered in the same action.
(1937, c. 291, s. 1001.)
§ 7971(150). Reports by consignees and bro-
kers.— Every person, corporation, partnership, or
unincorporated association in possession of prop-
erty on consignment, and all brokers dealing in
tangible personal property who have in their pos-
session such property belonging to others, shall
file with the supervisor of taxation of the county
in which such property is located a full and com-
plete list of the owners of such property, together
with the amount of such property owned by each:
Provided, that if such property is farm produce
owned by the original producer, who is a resident
of this state, the name of the owner and the.
amount of such property shall be reported to the
supervisor of the county of which such owner is a
resident. Consignees and brokers failing to make
such reports shall be liable to payment of the tax,
and a penalty of two hundred fifty dollars
($250.00), in the same manner and under the con-
ditions set forth in subdivision two of section
7971(149). (1937, c. 291, s. 1002.)
§ 7971(151). Private banks, bankers, brokers
and security brokers. — Every bank (not incor-
porated), banker, broker or security broker, at the
time fixed by this act for listing and assessing all
real and personal property, shall make out and
furnish to the list takers and assessors a sworn
statement showing:
(1) The amount of property on hand and in
transit.
(2) The amount of funds owned in the hands of
other banks, bankers or brokers.
(3) The amount of checks or other cash items,
the amount of which is not included in either of
the preceding items.
(4) The amount of bills receivable, discounted
or purchased, bonds and other credits due or to
become due, including interest receivable and ac-
crued, but not due, and interest due and unpaid.
(5) All other property appertaining to said busi-
ness, other than real estate, which real estate shall
be listed under this act.
(6) The amount of deposits made with them by
any other person, firm or corporation.
(7) The amount of all accounts payable, other
than current deposit accounts.
The aggregate amount of the first, second and
third items in said statements shall be listed as
other similar personal property is listed under this
act. The aggregate amount of the sixth and sev-
enth items shall foe deducted from the aggregate
amount of the fourth item of said statement, and
the remainder, if any, shall be listed as a credit.
(1937, c. 291, s. 1003.)
§ 7971(152). Persons, firms, banks and corpo-
rations dealing in securities on commission taxed
as a private banker. — No person, bank, or corpo-
ration, without a license authorized by law, shall
act as a stock broker or private banker. Any
person, bank, or corporation that deals in foreign
or domestic exchange, certificates of debt, shares
in any corporation or charter companies, bank or
other notes, for the purpose of selling the same or
any other thing for commission or other compen-
sation, or who negotiates loans upon real estate
securities, shall be deemed a security broker. Any
person, bank, or corporation engaged in the busi-
ness of negotiating loans on any class of security
or in discounting, buying or selling negotiable or
other papers or credits, whether in an office for
the purpose or elsewhere, shall be deemed to be a
private banker. Any person, firm, or corporation
violating this section shall pay a fine of not less
than one hundred nor more than five hundred dol-
lars for each offense. (1937, c. 291, s. 1004.)
[ 322 ]
§ 7971(153)
TAXATION
§ 7971(158)
§ 7971(153). Partnerships; liability of partners
for tax. — For the purpose of listing and assessing
property, a co-partnership shall be treated as an
individual, and its property, real and personal,
shall be listed in the name of the firm. Each part-
ner shall be liable for the whole tax. (1937, c.
291, s. 1005.)
§ 7971(154). Article not to be construed in con-
flict with § 7880(156)00 et seq.— None of the pro-
visions contained in any of the sections of this
article shall be construed to conflict with Article
VIII, Schedule H, of the Revenue Act [§ 7880-
(156) oo et seq.], but rather shall they be subordi-
nate thereto. (1937, c. 291, s. 1006.)
Part 11. Procedure Subsequent to the Close of
the Tax Listing Period
§ 7971(155). Review of abstracts by supervisor
and list takers. — After the close of the list taking
iperiod, and not later than the first meeting of the
board of equalization and review, the supervisor
shall examine the abstracts turned in by each list
taker, and, unless he is satisfied that said list
taker has satisfactorily performed the duties of a
list taker, shall not approve payment of any com-
pensation to said list taker.
The supervisor shall meet with each of the list
takers not later than the first meeting of the
board of equalization, for the purpose of review-
ing the abstracts generally to ascertain if the
same scales of value have been used in all town-
ships in the county, and if property has been
(listed at the valuation prescribed by law. (1937,
c. 291, s. 1100.)
§ 7971(156). Making up the tax records,— The
list takers for their respective townships, or such
other persons as the commissioners may desig-
nate, shall make out, on forms approved by the
state board of assessment, tax records which may
consist of a scroll designed primarily to show tax
valuations and a tax book designed primarily to
show the amount of taxes or may consist of one
record designated to show both valuations and
taxes. Such records for each township shall be
divided into four parts: (1) White individual tax-
payers (including lists filed by corporate fiducia-
ries for white individual beneficiaries) ; (2) col-
ored individual taxpayers (including lists filed by
corporate fiduciaries for colored individual bene-
ficiaries); (3) Indian individual taxpayers (includ-
ing lists filed by corporate fiduciaries for Indian
individual beneficiaries) ; and (4) corporations,
partnerships, business firms and unincorporated
associations. Such records shall show at least the
following information:
(a) The name of each person whose property is
listed and assessed for taxation, entered in alpha-
betical order.
(b) The amount of valuation of real property
assessed for county-wide ourooses (divided into
as many classes as the state board may prescribe).
(c) The amount of valuation of personal prop-
erty assessed for county-wide purposes (divided
into as many classes as the state board may pre-
scribe).
(d) The total amount of real and personal prop-
erty valuation assessed for county-wide purposes.
(e) The amount of ad valorem tax due by each-
taxpayer for county-wide purposes.
(f) The amount of poll tax due by each tax-
payer.
(g) The amount of dog tax due by each tax-
payer.
(h) The amount of valuation of property as-
sessed in any special district or sub-division of
the county for taxation.
(i) The amount of tax due by each taxpayer to
any special district or sub-division of the county.
(j) The total amount of tax due by the tax-
payer to the county and to any special district,
sub-division or sub-divisions of the county.
All changes in valuations effected between the
close of the listing period and the meeting of the
board of equalization and review shall be reflected
on such records, and so much of such records as
may have been prepared shall be submitted to the
board at its meetings. Changes made by said
board shall also be reflected upon such records, ei-
ther by correction, rebate or additional charge.
(1937, c. 291, s. 1101.)
§ 7971(157). Tax receipts and stubs. — Such
persons as the county commissioners may desig-
nate shall fill out the receipts and stubs for all
taxes charged upon the tax books. The form of
such receipts and stubs shall be approved by the
state board of assessment and shall show at least
the following:
(a) The name of the taxpayer charged with
taxes.
(b) The amount of valuation of real property
assessed for county-wide purposes.
(c) The amount of valuation of personal prop-
erty assessed for county-wide purposes.
(d) The total amount of valuation of real and
personal property assessed for county-wide pur-
poses.
(e) The rate of tax levied for each county-wide
purpose, the total rate for all county-wide pur-
poses, and the rate levied for any special district
or sub-division of the county, which tax is charged
to the taxpayer.
(f) The amount of the valuation of property as-
sessed in any special district or sub-division of the
county.
(g) The amount of ad valorem tax due by the
taxpayer for county-wide purposes.
(h) The amount of poll tax due by the tax-
payer.
(i) The amount of dog tax due by the taxpayer.
(j) The amount of tax due by the taxpayer to
any special districts or sub-divisions of the county.
(k) The total amount of tax due by the tax-
payer to the county and to any special district,
sub-division or sub-divisions of the county.
(1) Amount of discounts.
(m) Amount of penalties. (1937, c. 291, s.
1102.)
§ 7971(158). Disposition of tax records and re-
ceipts.— The tax records shall be filed in the of-
fice of the supervisor or official computing the
taxes or the office of the accountant or clerk to
the board of commissioners, as the commissioners
may direct. The tax receipts and stubs shall be
delivered to the sheriff or tax collector on the first
Monday in October of the year one thousand nine
hundred and thirty-seven and on the first Mon-
day in September of the year one thousand nine
hundred and thirty-eight and annually thereafter,
[323
§ 7971(159)
TAXATION
§ 7971(160)
provided he has made settlement as by law re-
quired, and the sheriff or tax collector shall re-
ceipt for the same. In the discretion of the com-
missioners, a duplicate copy of the tax book may
be made and delivered to the sheriff or tax collec-
tor at the same time.
A list of all appeals pending before the state
board of assessment shall be delivered with said
receipts; and there shall be delivered with said re-
ceipts an order, a copy of which shall be spread
upon the minutes of the commissioners, directing
the sheriff or tax collector to collect said taxes,
which order shall have the force and effect of a
judgment and execution against the property, real
and personal, charged in the tax book and re-
ceipts, and shall be in substantially the following
form:
"North Carolina, County, City.
To the Sheriff or Tax Collector of County,
or City, or Town :
You are hereby authorized, empowered and
commanded to collect the taxes set forth in the
tax books, filed in the office of , and in
the tax receipts herewith delivered to you, in the
amounts and from the taxpayers likewise therein
set forth, and such taxes are hereby declared to be
a first lien on all real property of the respective
taxpayers in County, or City or
Town, and this order shall be a full and sufficient
authority to direct, require and enable you to levy
on and sell any real or personal property of such
taxpayers, for and on account of the taxes due by
them, and all interest and costs on account there-
of, in accordance with law.
Witness my hand and official seal, this.... day
of , 19
(Seal)
Chairman, Board of Commissioners.
Attest:
Clerk of Board.
(1937, c. 291, s. 1103.)
§ 7971(159). Compensation of officer comput-
ing taxes. — The board of county commissioners
shall make an order for the payment to the regis-
ter of deeds, auditor, tax clerk, supervisor, or
other official such sum as may be in their discre-
tion a proper compensation for the work of com-
puting taxes, making out the tax book and copies
thereof, and the making of such reports as may be
required by the state board of assessment; but the
compensation allowed for computing the taxes
and making out the tax book is not to exceed ten
cents (10c) for each name appearing on the tax
book, which shall include the original and dupli-
cate tax book and also the receipts and stubs pro-
vided for in this act. (1937, c. 291, s. 1104.)
§ 7971(160). County board of equalization and
review. — (1) Personnel. — The county board of
equalization and review of each county shall be
composed of the board of county commission-
ers. Nothing in this act shall be construed as re-
pealing any law creating a special board of equali-
zation and review, or creating any board charged
with the duty of equalization and review in any
county.
(2) Compensation. — The members of the board
of equalization and review shall be allowed the
same per diem compensation and traveling ex-
pense, while actually engaged in the performance
of their duties, as is ordinarily paid to the mem-
bers of the board of county commissioners, such
compensation to be paid by the county.
(3) Oath. — Before entering upon their duties
each member of the board of equalization and re-
view shall take and subscribe the following oath
and file the same with the clerk of the board of
county commissioners: "I do solemnly swear (or
affirm) that I will faithfully discharge my duties
as a member of the Board of Equalization and Re-
view of County, North Carolina; and that
I will not allow my actions as a member of said
board to be influenced by personal or political
friendships or obligations.
(Signature)
(4) Clerk. — The supervisor shall act as clerk to
said board, shall be present at all meetings and
give to the board such information as he may have
or can obtain with respect to the valuation of tax-
able property in the county.
(5) Time of Meeting. — Said board shall hold its
first meeting on the eleventh Monday following
the day on which tax listing began, and may ad-
journ from time to time as its duties may require;
but it shall complete its duties not later than the
third Monday following its first meeting.
(6) Notice of Meeting. — ■ Notice of the time,
place and purpose of the first meeting of said
board shall be given by publishing said notice at
least three times in some newspaper published in
the county, the first publication to be at least ten
days prior to said meeting.
(7) Powers and Duties. — (a) It shall be the
duty of the board of equalization and review to
equalize the valuation of all property in the
county, to the end that such property shall be
listed on the tax records at the valuation required
by law; and said board shall correct the tax rec-
ords for each township so that they will conform
to the provisions of this act.
(b) The board shall, on request, hear any and
all taxpayers who own or control taxable property
assessed for taxation in the county in respect to
the valuation of such property or the property of
others.
(c) The board shall examine and review the tax
lists of each township for current year; shall, of
its own motion or on sufficient cause shown by
any person, list and assess any real or personal
property or polls subject to taxation in the county
omitted from said lists; shall correct all errors in
the names of persons, in the description of prop-
erty, and in the assessment and valuation of any
taxable property appearing on said lists; shall in-
crease or reduce the assessed value of any prop-
erty which in their opinion shall have been re-
turned below or above the valuation required by
law; and shall cause to be done whatever else shall
be necessary to make said lists comply with the
provisions of this act: Provided, that said board
shall not change the valuation of any real prop-
erty from the value at which it was assessed for
the preceding year except in accordance with the
terms of sections 7971(111) and 7971(112).
(d) The board may appoint committees, com-
posed of its own members or other persons, to as-
sist it in making any investigations necessary in its
work. It may also employ expert appraisers in
[324]
§ 7971(161)
TAXATION
§ 7971(164)
its discretion. The expense of the employment of
committees or appraisers shall be borne by the
county: Provided, that the board may, in its dis-
cretion, require the taxpayer to pay the cost of
any appraisal by experts demanded by him when
said appraisal does not result in material reduc-
tion of the valuation of the property appraised and
where such valuation is not subsequently reduced
materially by the board or by the state board of
assessment.
(e) The board may subpcena witnesses, or
books, records, papers and documents reasonably
considered to be pertinent to the decision of any
matter pending before it; and any member of the
board may administer oaths to witnesses in con-
nection with the taking of testimony. The chair-
man of the board shall sign the subpcena, and such
subpcena shall be served by any officer qualified to
serve subpoenas. (1937, c. 291, s. 1105.)
§ 7971(161). Giving effect to the decisions of
the board.- — All changes in names, descriptions or
valuations made by the board of equalization shall
he reflected upon the tax records by correction, re-
bate or additional charge; and when all such
changes have been given effect, and the scroll or
tax book has been totaled, the members of the
board of equalization, or a majority thereof, shall
sign a statement at the end of the scroll or tax
book to the effect that the scroll is the fixed and
permanent tax list and assessment roll for the cur-
rent year, subject to the provisions of this act.
The omission of such endorsement shall not affect
the validity of said scroll or tax book or of any
taxes levied on the basis of the valuations appear-
ing in it. (1937, c. 291, s. 110-6).
§ 7971(162). Appeals from the board of equali-
zation and review to the state board of assessment.
— Any property owner, taxpayer, or member of
the board of county commissioners may except to
the order of the board of equalization and review
and appeal therefrom to the state board of assess-
ment by filing a written notice of such appeal with
the clerk to the board of county commissioners
within sixty days after the adjournment of the
board of equalization and review. At the time of
filing such notice of appeal the appellant shall file
with the clerk to the board of county commission-
ers a statement in writing of the grounds of ap-
peal, and shall, within ten days after filing such
notice of appeal with the clerk to the board of
county commissioners, file with the state board of
assessment a notice of such appeal and attach
thereto a copy of the statement of the grounds of
appeal filed with the clerk to the board of county
commissioners.
The state board of assessment shall fix a time
for the hearing of such appeal, and shall hear the
same in the city of Raleigh, or such other place
within the state as the said board may designate;
shall give notice of time and place of such hearing
to the appellant, appellee, and to the clerk to the
board of county commissioners at least ten days
prior to the said hearing; shall hear all the evi-
dence or affidavits offered by the appellant, appel-
lee, and the board of county commissioners, shall
reduce, increase, or confirm the valuation fixed by
the board of equalization and review and enter it
accordingly, and shall deliver to the clerk of the
board of county commissioners a certified copy of
such order, which valuation shall be entered upon
the fixed and permanent tax records and shall
constitute the valuation for taxation. (1937, c.
291, s. 1107.)
§ 7971(163). Powers of the commissioners with
respect to the records after adjournment of the
board of equalization. — After the board of equali-
zation has finished its work and the changes ef-
fected by it have been given effect on the tax rec-
ords, the board of county commissioners may not
authorize any changes to be made on said records
except as follows:
(1) To give effect to the decisions of the state
board of assessment on appeal.
(2) To add to the records any valuation certi-
fied by the state board of assessment with respect
to property assessed in the first instance by said
state board, or to give effect to any valid correc-
tions made in such assessments by the state board.
(3) To correct the name of any taxpayer ap-
pearing on said records erroneously, or to substi-
tute the name of the person who' should have listed
property for the name appearing on the records
as listing said property, or to correct descriptions
on said records, and any such corrections or sub-
stitutions shall have the same force and effect as
if the name of the taxpayer or the description had
been correctly listed in the first instance.
(4) To correct valuations or taxes appearing
erroneously on the records as the result of cleri-
cal errors.
(5) To add any discovered property under the
provisions of this act.
(6) To reassess property when the supervisor
reports that, since the completion of the work of
the board of equalization, facts have come to his
attention which render it advisable to raise or
lower the assessment of some particular property
of a given taxpayer: Provided, that no such reas-
sessment shall be made unless it could have been
made by the board of equalization had the same
facts been brought to the attention of said board
of equalization: Provided further, that this shall
not authorize reassessment because of events or
circumstances not taking place or arising until
after the tax listing day.
(7) The board of county commissioners may
give the supervisor general authority to make any
changes under this section except those under
subsection (6); but neither the board nor the su-
pervisor shall make any changes under subsections
(3) or (6) which adversely affect the interests of
any taxpayer without giving such taxpayer writ-
ten notice and an opportunity to be heard prior
to final determination. (1937, c. 291, s. 1108.)
§ 7971(164). Discovery and assessment of prop-
erty not listed during the regular listing period. —
(1) Duty of Commissioners, Supervisors and List
Takers; Carrying Forward Real Estate. — It shall
be the duty of the members of the board of com-
missioners, the supervisor and the list takers to
be constantly looking out for property and polls
which have not been listed for taxation. After
any tax list or abstract has been delivered to a list
taker, the supervisor or the board of county com-
missioners, and such list taker, supervisor or board
of county commissioners shall have reason to be-
[ 325 ]
§ 7971(164)
TAXATION
§ 7971(164)
lieve or sufficient evidence upon which to form a
belief that the person, firm or corporation making
such list or abstract, in person or by agent, has
other personal property, tangible or intangible,
money, solvent credits, or other thing liable for
taxation, they or either of them shall take such
action as may be needful to get such property on
the tax list.
Either the list takers for the respective town-
ships, the clerical assistants to the supervisor or
the supervisor, as the supervisor may designate,
shall examine the tax lists for the current year
and the tax records for the preceding year, and
carry forward all real property which was listed
for the preceding year which has not been listed
for the current year. In the discretion of the su-
pervisor, such property may be listed on an ab-
stract signed b}r the official or employee carrying
it forward in the name of the taxpayer, or may
be entered directly on the tax scroll or tax book
by such official or employee. When such prop-
erty is so listed in the name of the owner or in
the name of the person last listing the same, the
listing shall be as valid in every respect as if made
by the owner: Provided, that such listing shall
not render any person individually liable to pay
the taxes who is not under a duty to list such
property.
(2) Procedure upon Discovery. — When prop-
erty or polls are discovered they shall be listed
in the name of the taxpayer by the supervisor or
some person designated by him. The clerk to the
board of commissioners or the supervisor shall
mail a notice to the taxpayer at his last known
address (or, if unknown, to the occupant or per-
son in possession of such property) to the effect
that the board of equalization at a designated
meeting (or the county commissioners at their
next regular meeting, in case the discovery is not
made in time for consideration by the board of
equalization) will assess the value of said prop-
erty or approve the listing of said poll. At such
meeting the board shall hear any objections pre-
sented by said taxpayer, render its decision and,
if necessary under said decision, assess said prop-
erty, subject to appeal to the state board of as-
sessment, or approve the listing of said poll. Said
property and polls may then be added to the reg-
ular tax records or placed in a separate record
designated "Late Listings," which shall have the
same force and effect as the regular records: Pro-
vided, nothing herein shall prevent valuation of
such property or listing of such polls by agree-
ment between the supervisor and taxpayer without
action by the board of equalization or board of
commissioners: Provided further, nothing herein
shall prevent the carrying forward of real estate,
listed for the prior year in accordance with the
terms of this act, without notice to the owner or
last person listing said realty unless, in years
other than revaluation years, the valuation of such
property is raised.
All property and polls not listed during the reg-
ular listing period shall, when eventually listed
under this section or by the person carrying for-
ward real estate, immediately be subject to the
taxes for the various years for which listed or as-
sessed, together with the penalties hereinafter set
forth.
(3) Assessment for Previous Years; Penalties.
— The county commissioners may assess any such
property or list such poll for the preceding years
during which it escaped taxation, not exceeding
five, in addition to the current year. When real
property is discovered which should have been
listed for the current year it shall be presumed
that it should have been listed by the same tax-
payer for the preceding five years unless the tax-
payer shall produce satisfactory evidence that such
property was actually listed for taxes during those
years or some of them: Provided, that this pre-
sumption shall not apply when real property is
carried forward from the preceding year's records.
When personal property is discovered which
should have been listed for the current year, it
shall be presumed that such property should have
been listed by the same taxpayer for the preced-
ing five years, unless the taxpayer shall produce
satisfactory evidence that such property was not
in existence, that it was actually listed for taxation
or that it was not his duty to list the same during
said years or some of them. Where it is shown
that such property should have been listed by
some other taxpayer during a part or all of such
preceding years, it may be assessed against such
other taxpayer for the proper years, with the pen-
alties as hereinafter prescribed.
In a proper case, property may be listed for one
or more prior years during which it escaped tax-
ation, even though it has been regularly listed for
the current year, is no longer in existence or is
no longer subject to taxation in this state.
The penalty for failure to list property or a poll
before the close of the regular listing period shall
be ten per cent (10%) of the tax levied for the
current year on such property or poll. Where
such property or poll is taxed for years preceding
the current year, the penalty, in addition to that
for the current year, shall be ten per cent (10%)
per annum. The minimum penalty shall be one
dollar ($1.00). Taxes assessed for years preced-
ing the current year shall be assessed at the rate
of tax prevailing in the various preceding years.
The taxes and penalties for each year shall be
shown separately on the records, but for the pur-
pose of tax collection and foreclosure the total of
all such taxes and penalties shall be regarded as
taxes for the current year; and the schedule of
discounts and penalties for payment or nonpay-
ment of current taxes shall apply to such taxes
and penalties for failure to list, despite the fact
that such taxes and penalties for failure to list
may not have been levied until the penalties for
failure to pay have already accrued.
(4) Commissioners' Power to Compromise. —
The board of county commissioners or the govern-
ing body of any municipal corporation is hereby
authorized and empowered to settle or adjust all
claims for taxation arising under this section or
any other section authorizing them to place on the
tax list any property omitted therefrom.
(5) Application to Cities and Towns. — The pro-
visions of this section shall extend to all cities,
towns and other municipal corporations having
power to tax property or polls, and the power
conferred and the duties imposed upon the board
of county commissioners shall be exercised and
[ 32&]
§ 7971(165)
TAXATION
§ 7971(1G7)
performed by the governing body of the munici-
pal corporation.
(6) Power to Employ Searchers. — The county
commissioners, either separately or in conjunction
with one or more municipal corporations in the
county, may employ one or more competent men
to make a diligent search and to discover and re-
port to the board or the supervisor any unlisted
property within the county, to the end that the
same may be listed and assessed for taxation as
provided in this section: Provided, nothing here-
in shall be construed as allowing a board of com-
missioners to appoint a tax collector unless it is
otherwise authorized to do so by law.
(7) Tax Receipts. — Tax receipts for the taxes
and penalties assessed against the property dis-
covered shall be made up under the provisions of
this act shall be delivered to the sheriff or tax col-
lector, who shall be charged with the same, and
shall have the same force and effect and shall be
a lien on the property in the same manner as if
they had been delivered to the sheriff or tax col-
lector at the time of the delivery of the regular
tax bills for the current year.
(8) Appeals. — Appeal may be had from the as-
sessment fixed by the board of equalization or
commissioners to the state board of assessment.
Notice of said appeal must be served upon the
clerk to the board of commissioners within sixty
days after the assessment is fixed, and said appeal
shall be in conformity with the provisions of this
act respecting appeals from boards of equalization.
(1937, c. 291, s. 1109.)
Editor's Note. — The cases in the following note construe
the somewhat similar provisions of former § 7971(50), now
repealed.
Discovery and Listing of Omitted Property. — This section
provides for discovery of taxable property not listed, by
certain tax authorities, and listing same. Hardware Mut.
Fire Ins. Co. v. Stinson, 210 N. C. 69, 77, 185 S. E. 449.
Where the plaintiff guardian paid taxes on property of
his ward, and thereafter, in accordance with a ruling that
the property was nontaxable, obtained a refund of the tax
and did not list the property again, and the property of the
ward was not exempt from taxation, it was held that the
prior ruling of the county commissioners to the effect that
the property was nontaxable does not prevent them from
listing the property for taxation for the prior five years,
including the year for which the tax was refunded. Law-
rence v. Shaw, 210 N. C. 352, 186 S. E. 504.
Compromise Settlement Is Binding Unless Made in Bad
Faith. — In the absence of a finding that the board of com-
missioners acted in bad faith in making a compromise set-
tlement of a tax, or abused its discretion in so doing, man-
damus to compel the commissioners to list and assess will
be denied. Stone v. Board of Com'rs, 210 N. C. 226, 186
S. E. 342.
Part 12. Assessment Procedure of Cities and
Towns
§ 7971(165). Status of property and polls listed
for taxation. — All property and polls validly listed
for taxation in any county, municipal corporation
or taxing district shall be thereby also validly
listed for taxation by any county, municipal cor-
poration or taxing district in which it has a tax-
able situs. Said situs shall be determined by the
rules prescribed in this act. (1937, c. 291, s. 1200.)
§ 7971(166). Tax lists and assessment powers
of cities and towns. — All cities and towns may ob-
tain their tax lists from the county records with-
out securing lists signed by the taxpayers, or may
set up their own machinery for securing lists
from the taxpayers, in the discretion of the gov-
erning body.
All cities and towns not situated in more than
one county shall accept the valuations fixed by
the county authorities, as modified by the state
board of assessment, under the provisions of this
act: Provided, that nothing in this section shall
be construed to modify the authority given to cit-
ies and towns under this act with respect to dis-
covered property. (1937, c. 291, s. 1201.)
§ 7971(167). Cities and towns situated in more
than one county. — For the purpose of municipal
taxation, all real and personal property and polls
subject to taxation by cities and towns situated in
two or more counties shall be listed and assessed
as hereinafter set forth.
(1) The governing body of each such city or
town shall, in quadrennial years, on or before the
date fixed for the appointment of the county su-
pervisor, appoint a city supervisor of taxation, and
two or more persons to act as list takers and as-
sessors, each of whom, including the supervisor,
shall have been resident freeholders in such city
or town for a period of not less than twelve
months. In years other than quadrennial years
such governing body shall, on or before the date
fixed for appointment of the county supervisor,
appoint one resident freeholder as city supervisor
of taxation and, in its discretion, one or more per-
sons to act as list takers and assessors, each of
whom shall have been a resident of such city or
town for at least twelve months.
(2) With respect to property to be listed for
taxation in the city or town the city supervisor
shall have the same powers and duties given to
the county supervisor under the terms of this act;
and the city list takers and assessors shall have
the same powers and duties given to county list
takers and assessors under the terms of this act;
and the procedure of listing and assessing shall
be, as nearly as possible, the same as that specified
for county listing and assessing under the terms
of this act.
(3) The governing body of each such city or
town may designate some officer or employee of
the city or appoint some other person to supervise
the preparation of the tax records and receipts,
and to make such reports as the state board of as-
sessment may request or require, and may employ
such clerical assistance in this connection as it
may deem advisable.
Such governing body shall also be vested with
the same powers and duties, with respect to the
listing of property for city taxation, as are vested
by this act in the county commissioners with re-
spect to the listing of property for county taxation,
and shall, with the city supervisor as chairman,
sit as a board of equalization and review; and ap-
peals may be taken from said city board of equali-
zation to the state board of assessment in the same
manner as provided in this act for appeals from
the county boards of equalization.
(4) The intent and purpose of this section is
to provide such cities and towns as lie in two or
more counties only with the machinery necessary
for listing and assessing taxes for municipal pur-
poses. The powers to be exercised by and the du-
ties imposed on such boards of aldermen, boards
[ 327
§ 7871(168)
TAXATION
§ 7971(173)
of commissioners or other governing bodies,
boards of equalization and review, city supervisor
of taxation, list takers and assessors, city clerk
and taxpayers shall be the same, and they shall be
subjected to the same penalties as provided in this
act for all boards of county commissioners, county
auditors, register of deeds, clerks of boards of
county commissioners, county supervisors, list
takers and assessors. The county commissioners
in their discretion may adopt the tax lists, scroll,
or assessment roll of such city or town as fixed
and determined by the board of equalization and
review of such cities or towns, and when so
adopted, shall be considered to all intent and pur-
pose the correct and valid list and the fixed and
determined assessment roll for the purpose of
county taxation.
(5) All expenses incident to the listing and as-
sessing of the property for the purpose of munic-
ipal taxation as aforesaid shall be borne by the
city or town for whose benefit the same is under-
taken: Provided, that where the county or coun-
ties in which such city or town lies shall adopt the
list and the fixed, determined assessment of the
city board of equalization and review, the county
board of commissioners may reimburse the gov-
erning body in such amounts as in their discretion
may be proper. (1937, c. 201, s. 1202.)
Part 13. Reports to the State Board of Assess-
ment and Local Government Commission
§ 7971(168). Report of valuation and taxes. —
The clerk of the board of county commissioners,
auditor, tax supervisor, tax clerk, county account-
ant or other officer performing such duties shall,
at such time as the board may prescribe, return to
the state board of assessment on forms prescribed
by said board an abstract of the real and personal
property of the county by townships, showing the
number of acres of land and their value, the num-
ber of town lots and their value, the value of the
several classes of livestock, the number of white
and negro polls, separately, and specify every
other subject of taxation and the amount of county
tax payable on each subject and the amount pay-
able on the whole. At the same time said clerk,
auditor, supervisor or other officer shall return to
the state board of assessment an abstract or list of
the poll, county and school taxes payable in the
county, setting forth separately the tax levied on
each poll and on each hundred dollars value of
real and personal property for each purpose, and
also the gross amount of every kind levied for
county purposes, and such other and further infor-
mation as the state board of assessment may re-
quire. (1937, c. 291, s. 1300.)
§ 7971(169). Clerks of cities and towns to fur-
nish information. — The clerk or auditor of each
city and town in this state shall annually make
and transmit to the state board of assessment, on
blanks furnished by said board, a full, correct, and
accurate statement showing the assessed valua-
tion of all property, tangible and intangible, with-
in his city or town, and separately the amount of
all taxes levied therein by said city or town, in-
cluding school district, highway, street, sidewalk,
and other similar improvement taxes for the cur-
rent year, and the purposes for which the same
were levied; and shall annually furnish to the local
government commission a complete and detailed
statement of the bonded and other indebtedness of
the city or town, the accrued interest on the same,
whether not due or due and unpaid, and the pur-
poses for which said indebtedness was incurred.
(1937, c. 291, s. 1301.)
§ 7971(170). County indebtedness to be reported.
— The auditor or county accountant of each county
in this state shall make and deliver annually to the
local government commission a full, correct and
accurate statement of the bonded and other in-
debtedness of his county, including township,
school districts, and special tax districts, the pur-
poses for which the same was incurred, and all
accrued interest, whether not due or due and un-
paid. (1937, 291, s. 1302.)
§ 7971(171). Penalty for failure to make report,
— Every register of deeds, auditor, county account-
ant, supervisor of taxation, assessor, sheriff, clerk
of superior court, clerk of board of county com-
missioners, county commissioners, board of alder-
men or other governing body of a city or town,
mayor, clerk of city or town, or any other public
officer, who shall wilfully fail, refuse, or neglect
to perform any duty required, to furnish any re-
port to the state board of assessment or local gov-
ernment commission as prescribed in this or the
Revenue Act, or who shall wilfully and unlawfully
hinder, delay or obstruct said board in the dis-
charge of its duties, shall, for every such failure,
neglect, refusal, hindrance or delay, in addition to
the other penalties imposed in this and the Reve-
nue Act, pay to the state board of assessment or
local government commission for the general
fund of the state the sum of one hundred dollars
($100.00), such sum to be collected by said board
of local government commission. A delay of
thirty days to make and furnish any report re-
quired or to perform a duty imposed shall be
prima facie evidence that such delay was wilful.
(1937, c. 291, s. 1303.)
Part 14. Levy of Taxes and Penalties for Failure
to Pay Taxes
§ 7971(172). Levy of taxes. — The boards of
county commissioners of the several counties shall,
not later than Wednesday after the third Monday
in August, levy such rate of tax for the general
county purposes as may he necessary to meet the
general expense of the county, not exceeding the
legal limitation, and such rates for other purposes
as may be authorized by law. (1937, c. 291, s.
1400.)
§ 7971(173). Date as of which lien attaches. —
The lien of taxes levied on property and polls
listed pursuant to this act shall attach to real estate
as of the day as of which property is listed, regard-
less of the time at which liability for the tax may
arise or the exact amount thereof be determined.
(1937, c. 291, s. 1401.)
Editor's Note.— A modification of the law to meet an un-
acceptable interpretation of the former statute is found in
this section which fixes a lien as of the date the property
is listed. Under the old law no lien attached till July first
and a transfer between April first and July first seemed
to shed the burden of taxes entirely under the decision of
the court in State v. Champion Fibre Co., 204 N. C. 295,
168 S. E. 207. No leason appears why a lien cannot be ef-
fective to cover obligations yet to be ascertained and it is
[328
§ 7971(174)
TAXATION
§ 7971(176)
believed the new section cures a glaring defect in our tax
law. 15 N. C. Law Rev., No. 4, p. 391.
§ 7971(174). Levy of poll tax.— (1) There shall
be levied by the board of county commissioners in
each county a tax of two dollars ($2.00) on each
taxable poll or male person between the ages of
twenty-one and fifty years, and the taxes levied
and collected under this section shall be for the
benefit of the public school fund and the poor of
the county.
(2) The board of county commissioners of every
county shall have the power to exempt any per-
son from the payment of poll taxes on account of
indigency, and when any such person has been
once exempted he shall not be required to renew
his application unless the commissioners shall re-
voke the exemption. When such exemption shall
have been made, the clerk of the board of county
commissioners shall furnish the person with a cer-
tificate of such exemption, and the person to whom
it is issued shall be required to list his poll, but
upon exhibition of such certificate the list taker
shall annually enter in the column intended for the
poll the word "exempt," and the poll shall not be
charged in computing the list. (1937, c. 291, s.
1402.)
§ 7971(175). Penalties and discounts for non-
payment of taxes. — All taxes assessed or levied by
any county in this state, in accordance with the
provisions of this act, shall be due and payable on
the first Monday of October of the year in which
they are so assessed or levied, and if actually paid
in cash:
(1) On or before the first day of November
next after due and payable, there shall be deducted
a discount of one per cent (1%).
(2) After the first day of November and on or
before the first day of December next after due
and payable, there shall be deducted a discount of
one-half of one per cent (y2%).
(3) After the first day of December and on or
before the first day of February next after due and
payable, the tax shall be paid at par or face value.
(4) After the first day of February and on or
before the first day of March next after due and
payable, there shall be added to the tax a penalty
of one per cent (1%).
(5) After the first day of March and on or be-
fore the first day of April next after due and pay-
able, there shall be added to the tax a penalty of
two per cent (2%).
(6) After the first day of April and on or before
the first day of May next after due and payable,
there shall be added a penalty of three per cent
(3%).
(7) After the first day of May and on or before
the first day of June next after due and payable,
there shall be added a penalty of four per cent
(4%).
(8) On and after the second dav of June the
penalty shall be, in addition to said four per cent
(4%), one-half of one per cent (^%) per month
or fraction thereof until paid from said day on the
principal amount of such taxes, which shall con-
tinue to accrue on taxes not included in a certifi-
cate of sale and which, on taxes included in a cer-
tificate of sale, shall continue to accrue until the
date of such certificate.
(9) Should any taxpayer desire to make a pre-
payment of his taxes between July first and Octo-
ber first of any year, he may do so by making pay-
ment to the county or city accountant, city clerk,
auditor or treasurer, as the governing body may
determine, and shall be entitled to the following
discounts: If paid on or before July first, a deduc-
tion of three per cent (3%); if paid on or before
August first, a deduction of two and one-half per-
cent (2/^%); if paid on or before September first,
a deduction of two percent (2%); if paid on or be-
fore October first, a deduction of one and one-
half per cent (iy2%). Whenever any such pay-
ments are made, the auditor or county accountant
shall certify the same to the clerk of the board of
county commissioners, and the same shall be cred-
ited, together with the discount, to the taxes levied
to the person, firm, or corporation, which credit
shall include the discount upon the above basis.
(10) The county commissioners of any county
may order and direct the payment of taxes in in-
stallments of not less than twenty-five per cent of
the amount due, at such time as the county com-
missioners may determine, the final installment to
be made payable not later than May first, subject
to the discounts and penalties as herein provided:
Provided, that no penalties shall be collected in
the counties of Mecklenburg and Rowan. (1937,
c. 291, s. 1403.)
Editor's Note. — For act relating to prepayment of taxes
in Beaufort county, see Public L,aws 1937, c. 65.
Part 15. Banks, Trust Companies and Building
and Loan Associations
§ 7971(176). Banks, banking associations, and
trust companies. — The value of shares of stock of
banks, banking associations, and trust companies
shall be determined as follows:
(1) Every bank, banking association, industrial
bank, savings institution, trust company, or joint-
stock land bank located in this state shall list its
real estate and tangible personal property, except
money on hand, in the county in which such real
estate and tangible personal property is located, for
the purpose of county and municipal taxation, and
shall, during second calendar month following the
month in which local tax listing begins each year,
list with the state board of assessment, on forms
provided by the said state board, in the name of
and for its shareholders, all the shares of its capi-
tal stock, whether held by residents or non-resi-
dents, at its actual value on the day as of which
property is assessed under this act.
(2) The actual value of such shares for the pur-
pose of this section shall be ascertained by adding
together the capital stock, surplus, and undivided
profits, and deducting therefrom the assessed value
of such real and tangible personal property which
such banking institutions shall have listed for tax-
ation in the county or counties wherein such real
and tangible personal property is located, together
with an amount according to its proportion of tax
value of any buildings and lands wholly or par-
tially occupied by such banking associations, in-
stitutions or trust companies, owned and listed for
taxation by a North Carolina corporation in which
such banking associations or institutions own
ninety-nine per cent (99%) of the capital stock.
(3) In addition to the deductions allowed in
item two of this section, there may be deducted
[ 329 ]
§ 7971(177)
TAXATION
§ 7971(181)
from the items of surplus and undivided profits an
amount not exceeding five per cent (5%) of the
bills and notes receivable of such banking associa-
tions, institutions, or trust companies to cover bad
or insolvent debts, investments in North Carolina
state bonds, United States government bonds,
joint-stock land bank bonds, and federal land bank
bonds, at the actual cost of said bonds owned on
and continuously for at least ninety days prior to
the day as of which property is assessed in the
current year. The value of such shares of capital
stock of such bank associations, institutions, or
trust companies shall be found by dividing the net
amount ascertained above by the number of shares
in the said banking associations, institutions, or
trust companies.
(4) If the state board of assessment shall have
reason to believe that the actual value of such
shares of stock of such banking associations, in-
stitutions, or trust companies, as listed with it, is
not true value in money, then the said board shall
ascertain such true value by such an examination
and investigation as seems proper, and increase or
reduce the value as so listed to such an amount as
it ascertains to be the true value for the purposes
of this section.
(5) The value of the capital stock of all such
banking associations, institutions, and trust com-
panies as found by the state board of assessment,
in the manner herein described, shall be certified
to the county and municipality in which such bank
or institution is located: Provided, that if any such
banking association, institution, or trust company
shall have one or more branches, the state board
of assessment shall make an allocation of the value
of the capital stock so found as between the par-
ent and branch bank or banks or trust company
in proportion to the deposits of the parent and
branch bank, banks, or trust company, and certify
the allocated values so found to the counties and
municipalities in which the parent and the branch
bank, banks, or trust company are located.
(6) The taxes assessed upon the shares of stock
of any such banking association, institutions, or
trust companies shall be paid by the cashier, secre-
tary, treasurer, or other officer or officers thereof,
and in the same manner and at the same time as
other taxes are required to be paid in such coun-
ties, and in default thereof such cashier, secretary,
treasurer, or other accounting officer, as well as
such banking association, institution, or trust com-
pany, shall be liable for such taxes, and in addition
thereto for a sum equal to ten per cent (10%)
thereof. Any taxes so paid upon any such shares
may, with the interest thereon, be recovered from
the owners thereof by the 'banking association, in-
stitution, or trust company or officers thereof pay-
ing them, or may be deducted from the dividends
accruing on such shares. The taxation of such
shares of capital stock shall not be at a greater
rate than is assessed upon other moneyed capital
in the hands of individual citizens of this state
coming in competition with the business of such
banking associations, institutions, or trust compa-
nies. (1937, c. 291, s. 1500.)
§ 7971(177). Building and loan associations. —
The secretary of each building and loan associa-
tion organized and/or doing business in this state
shall list with the local assessors all the tangible
real and personal property owned on the day as
of which property is assessed each year, including
all cash on hand or in bank on that date, which
shall be assessed and taxed as like property of in-
dividuals. (1937, c. 291, s. 1501.)
§ 7971(178). Foreign building and loan associa-
tions.— (1) All foreign building and loan associa-
tions doing business in this state shall list for
taxation, during the second calendar month fol-
lowing the month in which local tax listing begins
each year, with the state board of assessment,
through their respective agents, its stock held by
citizens of this state, with the name of the county,
city, or town in which the owners of said stock
reside. In listing said stock for taxation the with-
drawal value as fixed by the by-laws of each such
association shall be furnished to the said board,
and the stock shall be valued for taxation at such
withdrawal value.
(2) Any association or officer of such associa-
tion doing business in the state who shall fail, re-
fuse, or neglect to so list shares owned by citi-
zens of this state for taxation shall be barred from
doing business in this state; any local officer or
other person who shall collect dues, assessments,
/ premiums, fines, or interest from any citizen of
this state for any such association which has failed,
neglected, or refused to so list for taxation the
stock held by citizens of this state shall be guilty
of a misdemeanor, and fined and/or imprisoned
in the discretion of the court.
(3) The value of the shares of stock so held by
citizens of this state, as found by the state board
of assessment, shall be certified to the register of
deeds of the county in which such shareholders
reside, shall be placed on the assessment roll in
the name of such holders thereof, and taxed as
other property is taxed. (1937, c. 291, s. 1502.)
§ 7971(179). Article not to conflict with § 7880-
(156)oo et seq. — None of the provisions contained
in any of the sections of this article shall be con-
strued to conflict with Article VIII, Schedule H,
of the Revenue Act [§ 7880(156) oo et seq.], but
rather shall they be subordinate thereto. (1937,
c. 291, s. 1503.)
§ 7971(180). State board to keep record of all
corporations, etc.; secrecy enjoined. — The state
board of assessment shall prepare and keep a
record book in which it shall enter a correct list
of all the corporations, limited partnerships, joint-
stock associations, banks, banking associations,
industrial banks, savings institutions, and trust
companies which it has assessed for taxation, and
said record shall show the assessed valuation
placed upon them; and the state board of as-
sessment shall not divulge or make public any
report of such corporation, partnership, or asso-
ciation required to be made to it, except as pro-
vided in this or the Revenue Acts. (1937, c. 291,
s. 1504.)
Part 16. Public Service Companies
§ 7971(181). Telegraph companies. — Every
joint-stock association, company, co-partnership
or corporation, whether incorporated under the
laws of this state or any other state or any
foreign nation, engaged in transmitting to, from,
through, in, 'or across the state of North Carolina
telegraph massages shall be deemed and held to
[ 330]
§ 7971(182)
TAXATION
§ 7971(183)
be a telegraph company; and every such telegraph
company shall, during the second calendar month
following the month in which local tax listing
begins each year, make out and deliver to the
state board of assessment a statement, verified by
oath of the officer or agent of such company mak-
ing such statement, with reference to the day as
of which property is assessed next preceding,
showing:
First. The total capital stock of such associa-
tion, company, co-partnership, or corporation.
Second. The number of shares of capital stock
issued and outstanding, and the par value of each
share.
Third. Its principal place of business.
Fourth. The market value of said shares of
stock on the day as of which property is assessed
next preceding; and if such shares have no market
value, then the actual value thereof.
Fifth. The real estate, structures, machinery,
fixtures, and appliances owned by said association,
company, co-partnership or corporation, and sub-
ject to local taxation within the state, and the
location and assessed value thereof in each county
where the same is assessed for local taxation.
Sixth. The specific real estate, together with
the permanent improvements thereon, owned by
such association, company, co-partnership, or cor-
poration situated outside the state of North Caro-
lina and not directly used in the conduct of the
business, with a specific description of each such
piece, where located, the purpose for which the
same is used, and the sum at which the same is
assessed for taxation in the locality where situated.
Seventh. All mortgages upon the whole or
any part of its property, together with the dates
and amounts thereof.
Eighth, (a) The total length of the lines of
said association or company; (b) the total length
of so much of their lines as is outside of the state
of North Carolina; (c) the length of the lines and
wire mileage within each of the counties, town-
ships, and incorporated towns within the state of
North Carolina. (1937, c. 291, s. 1600.)
§ 7971(182). Telephone companies. — Every
telephone company doing business in this state,
whether incorporated under the laws of this state
or any other state, or of any foreign nation, shall,
during the second calendar month following the
month in which local tax listing begins each year,
make out and deliver to the state board of assess-
ment of this state a statement, verified by the oath
of the officer or agent of such company making
such statement, with reference to the day as of
which property is assessed next preceding, show-
ing ^
First. The total capital stock of such associa-
tion, company, co-partnership, or corporation in-
vested in the operation of such telephone business.
Second. The number of shares of capital stock
issued and outstanding, and the par or face value
of each share.
Third. Its principal place of business.
Fourth. The market value of said shares of
stock on the day as of which property is assessed
next preceding; and if such shares have no market
value, then the actual value thereof.
Fifth. The real estate, structures, machinery,
fixtures and appliances owned by said association,
company, co-partnership, or corporation and sub-
[ 33
ject to local taxation within the state, and the
location and assessed value thereof in each county
where the same is assessed for local taxation.
Sixth. The specific real estate, together with
the permanent improvements thereon, owned by
such association, company, co-partnership, or cor-
poration, situated outside of the state of North
Carolina, and used directly in the conduct of the
business, with a specific description of each such
piece, where located, the purpose for which the
same is used, and the sum at which the same is
assessed for taxation in the locality where situated.
Seventh. All mortgages upon the whole or any
of its property, together with the dates and
amounts thereof.
Eighth. (a) The total length of the lines of
said association or company; (b) the total length
of so much of their lines as is outside of the state
of North Carolina; (c) the length of the lines and
wire mileage within each of the counties, town-
ships, and incorporated towns within the state of
North Carolina. (1937, c. 291, s. 1601.)
§ 7971(183). Express companies. — Every joint-
stock association, company, co-partnership, or cor-
poration, incorporated or acting under the laws
of this state or any other state, or any foreign
nation, engaged in carrying to, from, through, in
or across this state, or any part thereof, money,
packages, gold, silver, plate, merchandise, freight
or other articles, under any contract, expressed
or implied, with any railroad company or the
managers, lessees, agents or receivers thereof, pro-
vided such joint-stock association, company, co-
partnership or corporation is not a railroad com-
pany, shall be deemed and held to be an express
company within the meaning of this act; and
every such express company shall, during the sec-
ond calendar month following the month in which
local tax listing begins each year, make out and
deliver to the state board of assessment a state-
ment, verified by the oath of the officer or agent
of such association, company, co-partnership or
corporation making such statement, with reference
to the day as of which property is assessed next
preceding, showing:
First. The total capital stock or capital of said
association, co-partnership or corporation.
Second. The number of shares of capital stock
issued and outstanding, and the par or face value
of each share; and in case no shares of capital
stock are issued, in what manner the capital stock
thereof is divided, and in what manner such hold-
ings are evidenced.
Third. Its principal place of business.
Fourth. The market value of said shares of
stock on the day as of which property is assessed
next preceding; and if such shares have no market
value, then the actual value thereof; and in case
no shares of stock have been issued, state the
market value, or the actual value in case there
is no market value, of the capital thereof, and the
manner in which the same is divided.
Fifth. The real estate, structures, machinery,
fixtures and appliances owned by the said asso-
ciation, company, co-partnership or corporation,
and subject to local taxation within the state of
North Carolina, and the location and assessed
value thereof in each county where the same is
assessed for local taxation.
Sixth. The specific real estate, together with
1]
§ 7971(184)
TAXATION
§ 7971(185)
the improvements thereon, owned by the associa-
tion, company, co-partnership or corporation
situated outside the state of North Carolina, and
not used directly in the conduct of the business,
with a specific description of each such piece,
where located, the purpose for which the same is
used, and the sum at which the same is assessed
for taxation in the locality where situated.
Seventh. All mortgages upon the whole or any
part of its property, together with the dates and
amounts thereof.
Eighth. (a) The total length of the lines or
routes over which such association, company, co-
partnership or corporation transports such mer-
chandise, freight, or express matter; (b) the total
length of such lines or routes as are outside the
state of North Carolina; (c) the length of such
lines or routes within each of the counties and
townships within the state of North Carolina.
(1937, c. 291, s. 1602.)
§ 7971(184). Sleeping-car companies. — Every
joint-stock association, company, co-partnership
or corporation incorporated or acting under the
laws of this or any other state, or of any foreign
nation, and conveying to, from, through, in or
across this state, or any part thereof, passengers
or travelers in palace cars, drawing-room cars,
sleeping cars, dining cars, or chair cars, under any
contract, expressed or implied, with any railroad
company or the managers, lessees, agents or re-
ceivers thereof, shall be deemed and held to be a
sleeping-car company for the purposes of this act,
and shall hereinafter be called "sleeping-car com-
pany"; and every such sleeping-car company do-
ing business in this state shall, during the second
calendar month following the month in which lo-
cal tax listing begins each year, make out and de-
liver to the state board of assessment a statement,
verified by the oath of the officer or agent of such
company making such statement, with reference
to the day as of which property is assessed next
preceding, showing:
First. The total capital stock of such sleeping-
car company invested in its sleeping-car business.
Second. The number of shares of such capital
stock devoted to the sleeping-car business issued
and outstanding, and the par or face value of each
share.
Third. Under the laws of what state it is in-
corporated.
Fourth. Its principal place of business.
Fifth. The names and postoffice address of its
president and secretary.
Sixth. The actual cash value of the shares of
such capital stock devoted to its sleeping-car busi-
ness on the day as of which property is assessed
next preceding such report.
Seventh. The real estate, structures, machinery,
fixtures, and appliances owned by said sleeping-
car company and subject to local taxation within
this state, and the location and assessed value
thereof in each county within this state where the
same is assessed for local taxation.
Eighth. All mortgages upon the whole or any
part of its property, and the amounts thereof, de-
voted to its sleeping-car business.
Ninth, (a) The total length of the main line of
railroad over which cars are run; (b) the total
length of so much of the main lines of railroad
over which the said cars are run outside of the
state of North Carolina; (c) the length of the
lines of railroads over which said cars are run
within the state of North Carolina: Provided, that
where the railroads over which said cars run have
double tracks, or a greater number of tracks than
a single track, the statement shall only give the
mileage as though such tracks were but single
tracks; and in case it shall be required, such state-
ment shall show in detail the number of miles of
each or any particular railroad or system within
the state. When the assessment shall have been
made by the state board of assessment in accord-
ance with section 7971(189), the board shall there-
upon notify the officer attesting such report of
the amount assessed against it, and such sleeping-
car company shall have twenty days within which
to appear and make objection, if any it shall have,
to said assessment. If no objection be made with-
in twenty days, the state board of assessment shall
certify to the county commissioners of the several
counties through which such cars are used the
value of the property of such sleeping-car company
within such county in the proportion that the
number of miles of railroad over which such cars
are used in said county bears to the number of
miles of railroad over which such cars are used
within the state, together with the name and post-
office address of the officers attesting such report
of such sleeping-car company, with the informa-
tion that tax bills, when assessed, are to be sent
to him by mail; and such value, so certified, shall
be assessed and taxed the same as other property
within said county. And when the assessment
shall have been made in such county, the sheriff
or county tax collector shall send to the address
given by the state board of assessment to the
county commissioners a bill for the total amount
of all taxes due to such county, and such sleep-
ing-car company shall have sixty days thereafter
within which to pay said taxes; and upon failure
of and refusal to do so such taxes shall be col-
lected the same as other delinquent taxes are, to-
gether with a penalty of fifty per cent (50%) added
thereto, and costs of collection. (1937, c. 291, s.
1603.)
§ 7971(185). Refrigerator and freight-car com-
panies.— Every person, firm, or corporation own-
ing refrigerator or freight cars operated over or
leased to any railroad company in this state or
operating in the state shall be taxed in the same
manner as hereinbefore provided for the tax of
sleeping-car companies, and the collection of the
tax hereon shall be followed in assessing and
collecting the tax on the refrigerator and freight
cars taxed under this section: Provided, if it ap-
pears that the owner does not lease the cars to
any railroad company, or make any contract to
furnish it with cars, but they are furnished to be
run indiscriminately over any lines on which
shipper or railroad companies may desire to send
them, and the owner receives compensation from
each road over which the cars run, the state board
of assessment shall ascertain and assess the value
of the average number of cars which are in use
within the state as a part of the necessary equip-
ment of any railroad company for the year ending
with the day as of which property is assessed,
next preceding the report, and the tax shall be
computed upon this assessment. (1937, c. 291, s.
1604.)
[ 332 ]
§ 7971(186)
TAXATION
§ 7971(189)
§ 7971(186). Street railway, waterworks, electric
light and power, gas, ferry, bridge, and other pub-
lic utility companies. — Every street railway com-
pany, waterworks company, electric light and
power company, gas company, ferry company,
bridge company, canal company, and other cor-
porations exercising the right of eminent domain,
shall, during the second calendar month follow-
ing the month in which local tax listing begins
each year, make out and deliver to the state board
of assessment a statement, verified by the oath of
the officer or agent of such company making such
statement, with reference to the co-partnership or
corporation, showing:
First. The total capital stock of such associa-
tion, company, co-partnership, or corporation.
Second. The number of shares of capital stock
issued and outstanding and the par or face value
of each share.
Third. Its principal place of business.
Fourth. The market value of said shares of
stock on the day as of which property is assessed
next preceding; and if such shares have no mar-
ket value, then the actual value thereof.
Fifth. The real estate, structures, machinery,
fixtures, and appliances owned by said association,
company, co-partnership or corporation, and sub-
ject to local taxation within the state, and the
location and assessed value thereof in each county
where the same is assessed for local taxation.
Sixth. The specific real estate, together with
the permanent improvements thereon, owned by
such association, company, co-partnership, or cor-
poration situate outside of the state of North
Carolina and not directly used in the conduct of
the business, with a specific description of each
such piece, where located, the purpose for which
the same is used, and the sum at which the same
is assessed for taxation in the locality where situate.
Seventh. All mortgages upon the whole or any
part of its property, together with the dates and
amounts thereof.
Eighth. (a) The total length of the lines of
said association or company; (b) the total length
of so much of their lines as is outside of the state
of North Carolina; (c) the length of lines within
each of the counties and townships within the
state of North Carolina. (1937, c. 291, s. 1605.)
§ 7971(187). State board of assessment may re-
quire additional information. — Upon the filing of
the statements required in the preceding sections
the state board of assessment shall examine them
and each of them; and if the board shall deem
the same insufficient, or in case it shall deem that
other information is requisite, it shall require such
officer to make such other and further statements
as said board may call for. In case of the failure
or refusal of any association, company, co-part-
nership, or corporation to make out and deliver
to the state board of assessment any statement
or statements required by this act, such associa-
tion, company, co-partnership, or corporation
shall forfeit and pay to the state of North Caro-
lina one hundred dollars ($100.00) for each addi-
tional day such report is delayed beyond the last
day of the month in which required to be made,
to be sued for and recovered in any proper form
of action in the name of the state of North Caro-
lina on the relation of the state board of assess-
ment, and such penalty, when collected, shall be
paid into the general fund of the state. (1937, c.
291, s. 1606.)
§ 7971(188). State board of assessment shall
examine statements. — The state board of assess-
ment shall thereupon value and assess the prop-
erty of each association, company, co-partnership,
or corporation in the manner hereinafter set forth,
after examining such statements and after ascer-
taining the value of such properties therefrom and
upon such other information as the board may
have or obtain. For that purpose it may require
the agents or officers of said association, company,
co-partnership, or corporation to appear before it
with such books, papers, and statements as it may
require, or may require additional statements to
be made, and may compel the attendance of wit-
nesses in case the board shall deem it necessary
to enable it to ascertain the true cash value of such
property. (1937, c. 291, s. 1607.)
§ 7971(189). Manner of assessment. — Said
state board of assessment shall first ascertain the
true cash value of the entire property owned by
the said association, company, co-partnership, or
corporation from said statement or otherwise for
the purpose, taking the aggregate value of all the
shares of capital stock, in case shares have a mar-
ket value, and in case they have none, taking the
actual value thereof or of the capital of said as-
sociation, company, co-partnership, or? corpora-
tion in whatever manner the same is divided, in
case no shares of capital stock have been issued:
Provided, however, that in case the whole or any
portion of the property of such association, com-
pany, co-partnership, or corporation shall be en-
cumbered by a mortgage or mortgages, such
board shall ascertain the true cash value of such
property by adding to the market value of the ag-
gregate shares of stock or to the value of the
capital in case there should be no such shares, the
aggregate amounts of such mortgage or mort-
gages, and the result shall be deemed and treated
as the true cash value of the property of such as-
sociation, company, co-partnership, or corporation.
Such state board of assessment shall, for the pur-
pose of ascertaining the true cash value of prop-
erty within the state of North Carolina, next as-
certain from such statements or otherwise the as-
sessed value for taxation, in the localities where
the same is situated, of the several pieces of real
estate situated within the state of North Carolina
and not specifically used in the general business of
such associations, companies, co-partnerships or
corporations, which assessed value for taxation
shall be by said board deducted from the gross
value of the property as above ascertained. Said
state board of assessment shall next ascertain and
assess the true cash value of the property of the
associations, companies, co-partnerships, or cor-
porations within the state of North Carolina by
taking as a guide, as far as practicable, the pro-
portion of the whole aggregate value of said as-
sociations, companies, co-partnerships as above
ascertained, after deducting the assessed value of
such real estate without the state which the length
of lines of said associations, companies, co-part-
nerships or corporations, in the case of telegraph
and telephone companies, within the state of
North Carolina bears to the total length thereof,
and in the case of express companies and sleeping-
[333
§ 7971(190)
TAXATION
§ 7971(194)
car companies the proportion shall be in propor-
tion of the whole aggregate value, after such de-
duction, which the length of lines or routes with-
in the state of North Carolina bears to the whole
length of lines or routes of such associations,
companies, co-partnerships or corporations, and
such amounts so ascertained shall be deemed and
held as the entire value of the property of said
associations, companies, co-partnerships or cor-
porations within the state of North Carolina: Pro-
vided, the board shall, in valuing the fixed prop-
erty in this state, give due consideration to the
amount of gross and net earnings per mile of line
in this state, and any other factor which would
give a greater or less value per mile in this state
than the average value for the entire system.
From the entire value of the property within the
state so ascertained there shall be deducted by the
state board of assessment the assessed value for
taxation of all real estate, structures, machinery,
and appliances within the state and subject to lo-
cal taxation in the counties, as hereinbefore de-
scribed in sections 7971(183)-7971(188), inclusive,
and the residue of such value as ascertained, after
deducting therefrom the assessed value of such
local properties, shall be by said board assessed to
said associations: Provided, the state board of
assessment shall also assess the value for taxation
of all structures, machinery, appliances, pole lines,
wire and conduit of telephone and telegraph com-
panies within the state subject to local taxation,
but land and buildings located thereon owned by
said companies shall be assessed in like manner
and by the same officials as though such prop-
erty was owned by individuals in this state. (1937,
e. 291, s. 1608.)
§ 7971(190). Value per mile. — Said state board
of assessment shall thereupon ascertain the value
per mile of the property within the state by divid-
ing the total value as above ascertained, after de-
ducting the specific properties locally assessed
within the state by the number of miles within the
state, and the result shall be deemed and held as
value per mile of the property of such association,
company, co-partnerlship, or corporation within
the state of North Carolina: Provided, the value
per mile of telephone companies shall be deter-
mined on a wire mileage basis. (1937, c. 291, s.
1609.)
§ 7971(191). Total value for each county. —
Said state board of assessment shall thereupon,
for the purpose of determining what amount shall
be assessed by it to said association, company, co-
partnership, or corporation in each county in the
state through, across, and into or over which the
lines of said association, company, co-partnership
or corporation extends, multiply the value per
mile, as above ascertained, by the number of miles
in each of such counties as reported in said state-
ments or as otherwise ascertained, and the re-
sult thereof shall be by the clerk of said board
certified to the chairman of the board of county
commissioners, respectively, of the several coun-
ties through, into, over, or across which the lines
or routes of said association, company, co-part-
nership, or corporation extend: Provided, the
total value of street railways, electric light, power
and gas companies, as determined in section 7971-
(189) to be certified to each county, shall be the
proportion which the assessed value of the phys-
ical property in each county bears to the total
assessed value of the physical property in the state.
All taxes due the state from any corporation taxed
under the preceding sections shall be paid by the
treasurer of each company direct to the commis-
sioner of revenue. (1937, c. 291, s. 1610.)
§ 7971(192). Companies failing to pay tax. — In
case any such association, company, co-partner-
ship, or corporation as named in this act shall fail
or refuse to pay any taxes assessed against it in
any county in this state,, in addition to other
remedies provided by law for the collection of
taxes, an action may be prosecuted in the name
of the state of North Carolina by the solicitors of
the different judicial districts of the state on the
relation of the board of commissioners of the
different counties of this state, and the judgment
in said action shall include a penalty of fifty per
cent (50%) of the amount of taxes as assessed
and unpaid, together with reasonable attorney's
fees for the prosecution of such action, which ac-
tion may be prosecuted in any county into, through,
over, or across which the lines or routes of any
association, company, co-partnership, or corpora-
tion shall extend, or in any county where such as-
sociation, company, co-partnership, or corporation
shall have an office or agent for the transaction of
business. In case such association, company, co-
partnership, or corporation shall have refused to
pay the whole of the taxes assessed against the
same by the state board of assessment, or in case
such association, company, co-partnership, or cor-
poration shall have refused to pay the taxes or
any portion thereof assessed to it in any particular
county or counties, such action may include the
whole or any portion of the taxes so unpaid in
any county or counties; but the attorney general
may, at his option, unite in one action the entire
amount of the tax due, or may bring separate ac-
tions to each separate county or adjoining coun-
ties, as he may prefer. All collection of taxes for
or on account of any particular county made in
any such suit or suits shall be by said board ac-
counted for as a credit to the respective counties
for or on account of which such collections were
made by the said board at the next ensuing set-
tlement with such county, but the penalty so col-
lected shall be credited to the general fund of
the state, and upon such settlement being made
the treasurers of the several counties shall, at their
next settlement, enter credits upon the proper
duplicates in their offices, and at the next settle-
ment with such county, report the amount so re-
ceived by him in his settlement with the state, and
proper entries shall be made with reference there-
to: Provided, that in any such .action the amount
of the assessments fixed by said state board of
assessment and apportioned to such county shall
not be controverted. (1937, c. 291, s. 1611.)
§ 7971(193). State board made appraisers for
public utilities, — The state board of assessment
herein established is constituted a board of ap-
praisers and .assessors for railroad, canal, steam-
boat, hydro-electric, street railway, and all other
companies exercising the right of eminent domain.
(1937, c. 291. s. 1612.)
§ 7971(194). Returns to state board by railroad,
etc., companies, — The president, secretary, super-
[334]
§ 7971(195)
TAXATION
§ 7971(197)
intendent, or other principal accounting officer
within this state of every railroad, telegraph, tele-
phone, street railway company, whether incorpo-
rated by the laws of this state or not, shall, during
the second calendar month following the month
in which local tax listing begins each year, return
to the said board of assessment and taxation, veri-
fied by the oath or affirmation of the officer mak-
ing the return, all the following described property
belonging to such corporation within the state, viz:
The number of miles of such railroad lines in each
county in this state, and the total number of miles
in the state, including the roadbed, right-of-way
and superstructures thereon, main and side tracks,
depot buildings and depot grounds, section and
tool houses and the land upon which they are
situated and necessary to their use, water stations
and land, coal chutes and land, and real estate and
personal property of every character necessary for
the construction and successful operation of such
railroad, or used in the daily operation, whether
situated on the charter right-of-way of the railroad
or on additional land acquired for this purpose,
except as provided below, including, also, if de-
sired by the state board of assessment, Pullman or
sleeping cars or refrigerator cars owned by them
or operated over their lines: Provided, however,
that all machines and repair shops, general office
buildings, storehouses and contents thereof, lo-
cated outside of the right-of-way shall be listed
for purposes of taxation by the principal officers
or agents of such companies with the list takers
of the county where the real and personal property
may be situated, in the manner provided by law
for the listing and valuation of real and personal
property. A list of such property shall be filed by
such company with the state board of assessment.
It shall be the duty of the register of deeds, if re-
quested so to do by the state board of assessment,
to certify and send to the said board a statement
giving a description of the property mentioned in
the foregoing proviso, and showing the assessed
valuation thereof, which value shall be deducted
from the total value of the property of such rail-
road company as arrived at by the board in ac-
cordance with section 7971(196), before the ap-
portionment is made to the counties and munici-
palities. The register of deeds shall also certify
to the board the local rate of taxation for county
purposes as soon as the same shall be determined,
and such other information obtained in the per-
formance of the duties of their offices as the said
board shall require of them; and the mayor of
each city or town shall cause to be sent to the said
board the local rate of taxation for municipal pur-
poses. (1937, c. 291, s. 1613.)
§ 7971(195). Railroads; annual schedule of roll-
ing stock, etc., to be furnished to state board. —
The movable property belonging to a railroad
company shall be denominated, for the purpose of
taxation, "rolling stock." Every person, company,
or corporation owning, constructing, or operating
a railroad in this state shall, during the second
calendar month following the month in which
local tax listing begins each year, return a list or
schedule to the state board of assessment which
shall contain a correct detailed inventory of all
the rolling stock belonging to such company, and
which shall distinctly set forth the number of lo-
comotives of all classes, passenger cars of all
classes, sleeping cars and dining cars, express cars,
horse cars, cattle cars, coal cars, platform cars,
wrecking cars, pay cars, hand-cars, and all other
kinds of cars, and the value thereof, and a state-
ment or schedule as follows: (1) The amount of
capital stock authorized and the number of shares
into which such capital stock is divided; (2) the
amount of capital stock paid up; (3) the market
value, or, if no market value, then the actual value
of shares of stock; (4) the length of line operated
in each county and total in the state; (5) the total
assessed value of all tangible property in the state;
(6) and, if desired, all the information heretofore
required to be annually reported by section seven
thousand nine hundred and sixty-four of the
Consolidated Statutes. Such schedule shall be
made in conformity to such instructions and forms
as may be prescribed by the board, and with refer-
ence to amounts and value on the day as of which
property is assessed for the year for which the
return is made. (1937, c. 291, s. 1614.)
§ 7971(196). Railroads; tangible and intangible
property assessed separately. — (a) At such dates
as real estate is required to be assessed for taxa-
tion the said board of assessment shall first de-
termine the value of the tangible property of each
division or branch of such railroad or rolling stock
and all the other physical or tangible property.
This value shall be determined by a due considera-
tion of the actual cost of replacing the property,
with a just allowance for depreciation on rolling
stock, and also of other conditions, to be considered
as is in the case of private property.
(b) They shall then assess the value of the
franchise, which shall be determined by due con-
sideration of the gross earnings as compared with
the operating expenses, and particularly by con-
sideration of the value placed upon the whole
property by the public (the value of the physical
property being deducted) as evidenced by the
market value of all capital stock certificates of in-
debtedness, bonds, or any other securities, the
value of which is based upon the earning capacity
of the property.
(c) The aggregate value of the physical or
tangible property, and the franchise, as thus de-
termined, shall be the true value of the property
for the purpose of an ad valorem taxation, and
shall be apportioned in the same proportion that
the length of such road in such county bears to
the entire length of each division or branch there-
of, and the state board of assessment shall certify,
on or before the first day of September, to the
chairman of the county commissioners and the
mayor of each city or incorporated town the
amounts apportioned to his county, city or town.
The board of county commissioners of each county
through which said railroad passes shall assess
against the same only the tax imposed for county,
township, or other taxing district purposes, the
same as is levied on other property in such county,
township or special taxing districts. (1937, c. 291,
s. 1615.)
§ 7971(197). Railroads; where road both within
and without state. — When any railroad has part of
its road in this state and part thereof in any other
state, the said board shall ascertain the value of
railroad track, rolling stock, and all other property
335
§ 7971(198)
TAXATION
§ 7971(2015)
liable to assessment by the state board of assess-
ment of such company as provided in the next pre-
ceding section, and divide it in the proportion to
the length such main line of road in this state
bears to the whole length of such main line of road
and determine the value in this state accordingly:
Provided, the board shall, in valuing the fixed
property in this state, give due consideration to
the character of roadbed and fixed equipment,
number of miles of double track, the amount of
gross and net earnings per mile of road in this
state, and any other factor which would give a
greater or less value per mile of road in this state
than the average value for the entire system. On
or after the first Monday in the month following
the month in which said reports are required to
be made, the said board shall give a hearing to all
the companies interested, touching the valuation
and assessment of their property. The said board
may, if they see fit, require all argument and com-
munications to be presented in writing. (1937, c.
291, s. 1616.)
§ 7971(198). Railroads; in cases of leased roads.
— If the property of any railroad company be
leased or operated by any other corporation, for-
eign or domestic, the property of the lessor or
company whose property is operated shall be sub-
ject to taxation in the manner hereinbefore di-
rected; and if the lessee or operating company,
being a foreign corporation, be the owner or pos-
sessor of any property in this state other than that
which it derives from the lessor or company whose
property is operated, it shall be assessed, in respect
to such property in like manner as any domestic
railroad company. (1937, c. 291, s. 1617.)
§ 7971(199). Railroads; board may subpoena
witnesses and compel production of records. — The
state board of assessment shall have power to
summon and examine witnesses and require that
books and papers shall be presented to them for
the purpose of obtaining such information as may
be necessary to aid in determining the valuation
of any railroad company. Any president, secre-
tary, receiver, or accounting officer, servant or
agent of any railroad or steamboat company hav-
ing any proportion of its property or roadway in
this state who shall refuse to attend before the
said board when required to do so, or refuse to
submit to the inspection of said board any books
or papers of such railroad company in his posses-
sion, custody, or control, or shall refuse to answer
such questions as may be put to him by said
board, or order touching the business or property,
moneys and credits, and the value thereof, of said
railroad company, shall be guilty of a misdemeanor,
and on conviction thereof before any court of
competent jurisdiction shall be confined in the jail
of the county not exceeding thirty days, shall be
fined in any sum not exceeding five hundred dol-
lars ($500.00) and costs, and any president, secre-
tary, accounting officer, servant, or agent afore-
said so refusing as aforesaid shall be deemed guilty
of contempt of such board, and may be confined,
by order of said board, in the jail of the proper
county until he shall comply with such order and
pay the cost of his imprisonment. (1937, c. 291,
s. 1618.)
§ 7971(200). Taxes on railroads shall be a lien
on property of the same. — The taxes upon any
and all railroads in this state, including roadbed,
right-of-way, depots, side tracks, ties, and rails,
now constructed or hereafter to be constructed,
are hereby made a perpetual lien thereupon, com-
mencing from the day as of which property is as-
sessed in each current year, against all claims or
demands whatsoever of all persons or bodies
corporate except the United States and this state,
and the above described property or any part
thereof may be taken and held for payment of all
taxes assessed against said railroad company in
the several counties of this state. (1937, c. 291,
s. 1619.)
§ 7971(201). Board of assessment to certify
apportionment of valuations to counties and mu-
nicipalities; payment of local taxes. — The state
board of assessment shall, upon completion of
the assessment directed in the preceding sections,
certify to the register of deeds of the counties and
the clerk of the board of commissioners of the
municipalities through which said companies oper-
ate the apportionment of the valuations as herein-
before determined and apportioned by the board,
and the board of county commissioners shall as-
sess against such valuation the same tax imposed
for county, township, town, or other tax district
purposes, as that levied on all other property in
such county, township, town, or other taxing dis-
tricts. This tax shall be paid to the sheriff or tax
collector of the county and municipality. (1937,
c. 291, s. 1620.)
§ 7971(202). Canal and steamship companies. —
The property of all canal and steamboat compa-
nies in this state shall be assessed for taxation as
above provided for railroads. In case any officer
fails to return the property provided in this sec-
tion, the board shall ascertain the length of such
property in this state, and shall assess the same
in proportion to the length at the highest rate at
which property of that kind is assessed by them.
(1937, c. 291, s. 1621.)
Part 17. General Provisions
§ 7971(203). Foreign corporations not exempt.
— 'Nothing in this act shall be construed to ex-
empt from taxation at the value prescribed by
law any property situated in this state belonging
to any foreign corporation, unless the context
clearly indicates the intent to grant such exemp-
tion. (1937, c. 291, s. 1700.)
§ 7971(204). Unconstitutionality or invalidity.
— If any clause, sentence, paragraph, sub-section,
section, or any part of this act shall for any rea-
son be adjudged by a court of competent juris-
diction to be invalid, such judgment shall not af-
fect, impair^ or invalidate the remainder of this
act, but shall be confined in its operation to the
clause, sentence, paragraph, sub-section, section
or part thereof directly involved in such judg-
ment. No caption of any section or sections
shall in any way affect the validity of this act or
any part thereof. (1937, c. 291, s. 1701.)
§ 7971(2015). General purpose of act. — It is the
purpose of this act to provide the machinery for
the listing and valuing of property, and the levy
and collection of taxes, for the year one thou-
sand nine hundred and thirty-seven, and annually
[ 336 ]
§ 7871(206)
TAXATION
§ 7987
thereafter, and to that end this act shall be liber-
ally construed, subject to the provisions set out
in Article VIII, Schedule H, of the Revenue Act
[§ 7880(l56)oo et seq.]. (1937, c. 291, s. 1702.)
§ 7971(206). Inconsistent acts repealed. —
Chapter four hundred and seventeen, Public Laws
of one thousand nine hundred and thirty-five, and
chapter one hundred and eight, Public Laws of
one thousand nine hundred and twenty-five, and
all acts and parts of acts inconsistent with the
provisions of this act are hereby repealed: Pro-
vided, that this shall not affect the validity of any
tax levied under the terms of any such act or
acts; nor shall it affect the validity of any action
taken under the provisions of such acts prior to
the ratification of this act: Provided further,
that none of the provisions contained in any of
the sections or articles of this act shall be con-
strued to conflict with or to repeal any part of
Article VIII, Schedule H, of the Revenue Act [§
7880(156)oo et seq.], but rather shall they be
subordinate thereto. (1937, c. 291, s. 1703.)
§ 7971(207). Effective date.— This act shall be
in full force and effect from and after its ratifica-
tion. Ratified this the 22nd day of March, A. D.
1937. (1937, c. 291, s. 1704.)
Part 18. Validation of Listings
§i 7971(208). Real property listings validated. —
Listings of any real estate not otherwise listed,
which have been carried forward on the tax list
of any person by the county supervisor of taxa-
tion, list taker or assessor, at the same assessed
value of said property as it was valued at in the
last quadrennial assessment of taxes, unless the
value thereof has been changed by the board of
county commissioners as provided by law, are
hereby validated, and are hereby declared to be
legal and valid listings of the same as if listed by
the owner or owner's agent or by the chairman
of the board of county commissioners or other-
wise, as provided by law.
This section shall be retroactive so as to in-
clude the period of time from the first day of
May, one thousand nine hundred twenty-seven,
to and including the eleventh day of May, one
thousand nine hundred thirty-five.
The counties of Alamance, Ashe, Beaufort,
Bertie, Brunswick, Cabarrus, Camden, Carteret,
Clay, Currituck, Dare, Durham, Greene, Halifax,
Harnett, Henderson, Hertford, Hoke, Hyde, Ire-
dell, Johnston, Macon, Moore, Northampton,
Pasquotank, Pitt, Polk, Randolph, Richmond,
Robeson, Rowan, Rutherford, Sampson, Surry,
Transylvania, Wake, Warren, and Wayne are
hereby exempted from the provisions of this sec-
tion. (1937, c. 259, ss. 1-3.)
SUBCHAPTER III. COLLECTION
OF TAXES
Art. 10. General Provisions
§ 7976(b). Taxing authorities authorized to re-
lease or remit taxes. — The board of county com-
missioners or city council or board of aldermen or
city commissioners, or any other governing body
in any city or town, shall have power to release,
discharge, remit or commute any portion of the
taxes assessed and levied against any person or
property within their respective jurisdictions
when there has been destruction or partial de-
struction or any damage to the property assessed
for valuation when such destruction, partial de-
struction or damage occurs between midnight of
April first and midnight of June thirtieth of any
year, and when said destruction or partial de-
struction or damage has been caused by tornado,
cyclone, hurricane or other wind or windstorm:
Provided, application for release, discharge, re-
mission or commutation is made to the aforesaid
governing body within one year of the date of
said destruction, partial destruction or damage:
Provided further, that in cases of applicants for
such relief who have received, or may receive,
reimbursements for such damage or destruction
from insurance policy contracts or otherwise, or
whose property has been restored or rehabilitated,
wholly or partially, by the Red Cross or any pub-
lic welfare agency or organization without full
value having been paid therefor by the property
owner, such applicant shall, as a condition pre-
cedent to the relief herein provided for, list for
taxation for the year for which relief is asked the
equivalent in value of such reimbursement or res-
toration or rehabilitation; and Provided further,
that such governing body shall apply this section
uniformly to all persons and property within its
jurisdiction. This section shall be retroactive to
and including April first, one thousand nine hun-
dred and thirty-six. (1937, c. 15, ss. 1, 2.)
§ 7979. Remedy of taxpayer for unauthorized
tax.
Excllusiveness of Statutory Remedy.—
Quo warranto is the sole remedy to test the validity of an
election to public office, but not to test the validity of a
tax even though it is levied under the authority of a popu-
lar election. Barbee v. Board of Com'rs, 210 N. C. 717, 188
S. K. 314. See § 858 and the note thereto.
Art. 11. Rights of Parties Adjusted
§ 7982. Forfeiture by life tenant failing to pay.
Taxes Constitute Claim against Life Tenant's Estate. —
A life tenant is liable for taxes assessed against the prop-
erty during his lifetime, and when he dies without paying
the same they constitute a claim against his estate for
taxes assessed previous to his death within the meaning of
§ 93, and are payable in the third class stipulated by that
section. Rigsbee v. Brogden, 209 N. C. 510, 184 S. E. 24.
Purpose of Section.— The fact that the remainderman is
given the right of forfeiture and redemption under this
section in case the life tenant suffer the land to be sold for
taxes, is in recognition of the duty resting upon the life
tenant to keep the property free from tax liens, so that it
may pass to the remainderman unencumbered by such liens.
Rigsbee v. Brogden, 209 N. C. 510, 513, 184 S. E. 24.
Art. 12. Tax Liens
§ 7986. No lien on personalty.
Lien Attaches at Levy.—
Since a lien for personal property taxes does not attach
until levy thereon, where the receiver of a corporation sold
personal property of the corporation under' orders of the
court, and the city and county levied executions on the
funds derived from the sale, claiming preferred claims for
personal property taxes for several years prior to the ap-
pointment of the receiver, it was held that no lien for
taxes was created prior to the sale of the property free
from tax liens by the receiver, and that the city and county
have no lien on the proceeds of sale of the property and are
not entitled to a preferred claim against the funds. Currie
v. Southern Manufacturers Club, 210 N. C. 150, 185 S. E.
666.
§ 7987. Lien on realty.
As to date lien attaches under Machinery Act of 1937, see
§ 7971(173).
Editor's Note. — As to amendatory act applicable only to
Durham county, see Public Laws 1937, c. 211.
N. C. Supp.
[ 337
§ 7987(a)
UNEMPLOYMENT COMPENSATION
§ 8052(2)
Superior to Street Assessment Lien. — The lien for street
assessment under § 2713 is superior to all other liens except
the annual general property tax under this section. Win-
ston-Salem v. Powell Paving Co., 7 F. Supp. 424, 427.
Nature of the Lien- —
Persons who hold liens of any character against real es-
tate hold them subject to a lien of the city and county
for the ad valorem taxes. Winston- Salem v. Powell Pav-
ing Co., 7 F. Supp. 424, 427.
§ 7987(a). Interested party paying taxes after
sale, subrogated to rights of governmental agency
as to other tracts.
Cited in Rigsbee v. Brogden, 209 N. C. 510, 184 S. F. 24.
§ 7987(b). Interested party may redeem part of
land.
Editor's Note.— Public Laws 1937, c. 81, applicable only
to Mecklenburg county, struck out the proviso of this sec-
tion.
Art. 13. Time and Manner of Collection
§ 8003. Property in hands of receiver.
Failure to Levy Prior to Sale Gives Purchaser Title Clear
of Liens. — Where neither the city nor the county levied
upon property for unpaid taxes after the same came into
the possession of a receiver, when the property was sold,
under the orders of the court, the purchaser acquired title
to same free and clear of any lien for the taxes due by the
defendant at the date of the appointment of the receiver.
Currie v. Southern Manufacturers Club, 210 N. C. 150, 152,
185 S. F. 666.
Art. 14. Tax Sales
Part 1. Sale of Personalty
§ 8009. Fees of sheriff and expenses of sale of
personalty and realty.
Sheriff Paid Fixed Salary Not Entitled to Fees. —
Plaintiff sheriff was paid a fixed salary for his services as
a tax collector under the provisions of ch. 329, Public Laws
of 1925, hence his services in advertising and selling land
for delinquent taxes, and preparing land-sale certificates,
and entering land sales upon the land- sale register, were
performed in pursuit of his duties as tax collector, and the
sheriff is not entitled to receive, in addition to his salary,
fees fof such services under this section. Patterson v.
Swain County, 208 N. C. 453, 181 S. F. 329.
Stated, in dissenting opinion, in Braswell v. Richmond
County, 208 N. C. 649, 182 S. E. 148.
Part. 2. Sale of Realty
§ 8012(d). Notices of sale for taxes by publica-
tion validated. — All sales of real property under
tax certificate foreclosures, made since January
first, one thousand nine hundred twenty-seven,
where the original notice of sale was published
for four successive weeks, and any notice of re-
sale was published for two successive weeks, pre-
ceding said sales, whether the notice of sale was
required to be published in a newspaper or at
courthouse door, or both, shall be, and the same
are in all respects validated as to publication of
said notice: Provided, nothing in this validating
section shall affect pending litigation: Provided
further, said publication was completed as above
set out within ten days of the date of the sale.
The provisions of this section shall not apply
to the counties of Alleghany, Beaufort, Cabarrus,
Camden, Carteret, Caswell, Currituck, Halifax,
Harnett, Henderson, Hertford, Hyde, Iredell,
Johnston, Jones, Macon, Mitchell, Moore, Nash,
New Hanover, Perquimans, Pitt, Polk, Rowan,
Rutherford, Scotland, Surry, Wake, Warren,
Washington, and Wayne. (1937, c. 128, ss. 1, 2.)
§ 8014. Sale advertised.
Editor's Note.— Public Eaws 1937, c. 142, provides that
the provisions of Public Laws 1931, c. 126, shall not apply
to Yancey county. All advertisements of tax sales in Yan-
[ 33
cey county shall be published in a newspaper published in
said county.
§ 8026. Certificate to county, city, etc.; right to
transfer.
Quoted, in dissenting opinion, in Braswell v. Richmond
County, 208 N. C. 649, 182 S. E. 148.
Part 3. Tax Deeds
§ 8028. Remedy of holder of certificates of sale.
This section changed the law as to tax deeds, and sub-
stituted the remedy by suit for foreclosure of the certificate
of tax sale. Bailey v. Howell, 209 N. C. 712, 714, 184 S. E-
476.
Certificate Can Not Be Proved as Preferred Claim against
Life Tenant's Estate. — A tax- sale certificate in the hands
of a remainderman, representing taxe9 paid by the re-
mainderman during the lifetime of the life tenant, may
not be proved as a preferred claim against the estate of
the life tenant, since the remainderman's sole remedy upon
the tax- sale certificate is by foreclosure under this section.
Rigsbee v. Brogden, 209 N. C. 510, 184 S. E. 24.
Part 4. Remedies of Purchasers at Tax Sales
§ 8037. Purchaser shall foreclose.
Editor's Note. — For act relating to Beaufort county and
the municipalities therein, see Public Laws 1937, c. 65.
Same — Limit on Attorney's Fees and Total Cost— Inter-
est and Penalty.— Public Laws 1933, c. 560, provides that in
no event shall the attorney fee exceed two dollars and fifty
cents in each suit for foreclosure; that the total cost of the
taxpayer including attorney's fee shall not exceed six dol-
lars in each suit; and that the interest and penalty on tax
sale certificates shall be eight per centum per annum.
Last and Highest Bidder1 Has No Rights in Property
Until Bid Is Accepted. — Where, in a proceeding to fore-
close a tax sale certificate, the land has been sold but be-
fore confirmation of the bid a resale is ordered and pend-
ing a resale the taxpayer pays the judgment for the taxes
and the county takes a voluntary nonsuit, the last and
highest bidder at the sale is not entitled to be made a
party to the action and contest the validity of the judg-
ment as of nonsuit, the order of resale being a rejection of
his bid and a release of his liability thereunder, and the
fact that he had placed the last and highest bid at the
sale conferring no rights in the property to him. Richmond
County v. Simmons, 209 N. C. 250, 183 S. E. 282.
This section provides for a check on the office of the
sheriff, and requires him to make delivery of certificates of
sales evidencing purchases by counties to some properly
designated officer. While it is clearly pointed out that it
is the duty of such officer to collect the taxes due on these
certificates of sales evidencing purchases by the counties,
it is nowhere said that the actual collection shall not be
made by the sheriff or the tax collector. Braswell v. Rich-
mond County, 208 N. C. 649, 652, 182 S. E. 148, dissenting
opinion of Justice Clarkson.
Part 5. Redemption from Tax Sales
§ 8038. Manner of redemption,
Quoted, in dissenting opinion, in Braswell
Richmond
County,
N. C. 649, 182 S. E. 148.
CHAPTER 131A
UNEMPLOYMENT COMPENSATION
§ 8052(1). Title.— This chapter shall be known
and may be cited as the "Unemployment Com-
pensation Eaw." (Ex. Sess., 1936, c. 1, s. 1.)
For article discussing unemployment compensation, see
15 N. C. Eaw Rev., No. 4, p. 377.
§ 8052(2). Declaration of state public policy. —
As a guide to the interpretation and application
of this chapter, the public policy of this state is
declared to be as follows: Economic insecurity
due to unemployment is a serious menace to the
health, morals, and welfare of the people of this
state. Involuntary unemployment is therefore a
subject of general interest and concern which re-
§ 8052(3)
UNEMPLOYMENT COMPENSATION
5 8052(5)
quires appropriate action by the legislature to
prevent its spread and to lighten its burden which
now so often falls with crushing force upon the
unemployed worker and his family. The achieve-
ment of social security requires protection against
this greatest hazard of our economic life. This
can be provided by encouraging employers to pro-
vide more stable employment and by the sys-
tematic accumulation of funds during periods of
employment to provide benefits for periods of un-
employment, thus maintaining purchasing power
and limiting the serious social consequences of
poor relief assistance. The legislature, therefore,
declares that in its considered judgment the pub-
lic good and the general welfare of the citizens
of this state require the enactment of this meas-
ure, under the police powers of the state, for the
compulsory setting aside of unemployment re-
serves to be used for the benefit of persons un-
employed through no fault of their own. (Ex.
Sess., 1936, c. 1, s. 2.)
§ 8052(3). Benefits.— (a) Payment of Benefits.
— Twenty-four months after the date when con-
tributions first accrue under this chapter benefits
shall become payable from the fund. All bene-
fits shall be paid through employment offices, in
accordance with such regulations as the commis-
sion may prescribe.
(b) Weekly Benefit Amount for Total Unem-
ployment.— Each eligible individual who is totally
unemployed (as defined in section 8052(19) (k)
(1) ) in any week shall be paid, with respect to
such week, benefits at the rate of fifty per centum
of his full-time weekly wage (as defined in sub-
section (d) of this section), but not more than
fifteen dollars per week nor less than either five
dollars or three-fourths of his full-time weekly
wage, whichever is the lesser.
(c) Weekly Benefit for Partial Unemployment.
— Each eligible individual who is partially unem-
ployed (as defined in section 8052(19) (k) (2) )
in any week shall be paid with respect to such
week a partial benefit. Such partial benefit shall
be an amount equal to the difference between his
weekly benefit amount (as defined in section 8052-
(19) (q) ) and five-sixths of his remuneration (as
defined in section 8052(3 9) (n) ) for such week.
(d) Determination of Full-Time Weekly Wage.
— (1) The full-time weekly wage of any individ-
ual means the weekly wages that such individual
would receive if he were employed at the most
recent wage rate earned by him in his base pe-
riod and for the customary scheduled full-time
week prevailing for his occupation in the enter-
prise in which he last earned wages during his
base period.
(2) If the commission finds that the full-time
weekly wage, as above defined, would be unrea-
sonable or arbitrary or not readily determinable
with respect to any individual, the full-time weekly
wage of such individual shall be deemed to be
one-thirteenth of his total wages in that quarter
in which such total wages were highest during his
base period.
(e) Duration of Benefits. — The maximum total
amount of benefit payable to any eligible individ-
ual during any benefit year shall not exceed the
balance credited to his account with respect to
wages earned during his base period or sixteen
times his weekly benefit amount, whichever is the
lesser. The commission shall maintain a separate
account for each individual who earns wages sub-
sequent to December thirty-one, one thousand
nine hundred and thirty-six, except where the
commission may find other forms of reports ade-
quate. After the expiration of each calendar
quarter, the commission shall credit each such ac-
count with one-sixth of the wages earned by such
individual during such quarter, or sixty-five dol-
lars, whichever is the lesser. Benefits paid to an
eligible individual shall be charged against
amounts credited to his account on the basis of
wages earned during his base period, which have
not previously been charged hereunder, in the
same chronological order as the wages on the
basis of which such amounts were computed were
earned. (Ex. Sess., 1936, c. 1, s. 3; 1937, c. 448,
s. 1.)
Editor's Note— The 1937 amendment inserted at the end
of the second sentence of subsection (e) the words "ex-
cept where the commission may find other forms of reports
adequate."
§ 8052(4). Benefit eligibility conditions. — An un-
employed individual shall be eligible to receive
benefits with respect to any week only if the com-
mission finds that —
(a) He has registered for work at and there-
after has continued to report at an employment
office in accordance with such regulations as the
commission may prescribe;
(b) He has made a claim for benefits in accord-
ance with the provisions of section 8052(6) (a);
(c) He is able to work, and is available for
work;
(d) Prior to any week for which he claims ben-
efits he has been totally unemployed for a wait-
ing period of two weeks (and for the purposes
of this subsection two weeks of partial unem-
ployment shall be deemed to be equivalent to one
week of total unemployment). Such weeks of to-
tal or partial unemployment or both need not be
consecutive. No week shall be counted as a week
of total unemployment for the purposes of this
subsection:
(1) If benefits have been paid with respect
thereto;
(2) Unless the individual was eligible for ben-
efits with respect thereto in all respects except
for the requirements of subsections (b) and (e)
of this section;
(3) Unless it occurs within the thirteen con-
secutive weeks preceding the week for which he
claims benefits: Provided, that this condition
shall not interrupt the payment of benefits for
consecutive weeks of unemployment nor require
any individual who, prior to the first day of his
benefit year, shall have accumulated such two
waiting period weeks, to accumulate more than
three additional waiting period weeks during his
ensuing benefit year;
(4) Unless it occurs after benefits first could
become payable to any individual under this
chapter;
(e) He has within the first four out of the last
five completed calendar quarters immediately pre-
ceding the first day of his benefit year, earned
wages of not less than sixteen times his weekly
benefit amount. (Ex Sess., 1936, c. 1, s. 4.)
§ 8052(5). Disqualification for benefits. — An in-
dividual shall be disqualified for benefits:
[ 339
§ 8052(6)
UNEMPLOYMENT COMPENSATION
§ 8052(6)
(a) For the week in which he has left work
voluntarily without good cause, if so found by
the commission, and for not less than the one
nor more than the five weeks which immediately
follow such week (in addition to the waiting pe-
riod), as determined by the commission, accord-
ing to the circumstances in each case.
(b) For the week in which he has been dis-
charged for misconduct connected with his work,
if so found by the commission, and for not less
than the one nor more than the nine weeks which
immediately follow such week (in addition to the
waiting period), as determined by the commis-
sion according to the circumstances in each case.
Such period shall be charged against the em-
ployer's individual account as if benefits had
been paid hereunder.
(c) If the commission finds that he has failed,
without good cause, either to apply for available,
suitable work when so directed by the employ-
ment office or the commission or to accept suit-
able work when offered him, or to return to his
customary self-employment (if any) when so di-
rected by the commission. Such disqualification
shall continue for the week in which such failure
occurred, and for not less than the one nor more
than the five weeks which immediately follow
such week (in addition to the waiting period), as
determined by the commission according to the
circumstances in each case.
(1) In determining whether or not any work is
suitable for an individual, the commission shall
consider the degree of risk involved to his health,
safety and morals, his physical fitness and prior
training, his experience and prior earnings, his
length of unemployment and prospects for se-
curing local work in his customary occupation,
and the distance of the available work from his
residence.
(2) Notwithstanding any other provisions of
this chapter, no work shall be deemed suitable and
benefits shall not be denied under this chapter to
any otherwise eligible individual for refusing to
accept new work under any of the following con-
ditions: (a) If the position offered is vacant due
directly to a strike, lockout, or other labor dis-
pute; (b) if the remuneration, hours, or other
conditions of the work offered are substantially
less favorable to the individual than those pre-
vailing for similar work in the locality; (c) if as a
condition of being employed the individual would
be required to join a company union or tO' resign
from or refrain from joining any bona fide labor
organization.
(d) For any week with respect to which the
commission finds that his total or partial unem-
ployment is due to a stoppage of work which ex-
ists because of a labor dispute at the factory, es-
tablishment, or other premises at which he is or
was last employed: Provided, that this subsec-
tion shall not apply if it is shown to the satisfac-
tion of the commission that —
(1) He is not participating in or financing or
directly interested in the labor dispute which
caused the stoppage of work; and
(2) He does not belong to a grade or class of
workers of which, immediately before the com-
mencement of the stoppage, there were members
employed at the premises at which the stoppage
occurs any of whom are participating in or fi-
nancing or directly interested in the dispute:
Provided, for the purposes of this subsection (d),
that if in any case separate branches of work
which are commonly conducted as separate busi-
nesses in separate premises are conducted in sepa-
rate departments of the same premises, each such
department shall 'be deemed to be a separate fac-
tory, establishment, or other premises.
(e) For any week with respect to which he is
receiving or has received remuneration in the
form of—
(1) Remuneration in lieu of notice;
(2) Compensation for temporary partial disa-
bility under the Workmen's Compensation Law
of any state or under a similar law of the United
States; or
(3) Old age benefits under Title II of the So-
cial Security Act, as amended, or similar pay-
ments under any act of congress: Provided,
that if such remuneration is less than the benefits
which would otherwise be due under this chap-
ter, he shall be entitled to receive for such week,
if otherwise eligible, benefits reduced by the
amount of such remuneration.
(f) (1) If the commission finds he is custom-
arily self-employed and can reasonably return to
self-employment.
(2) If unemployment is due to a fire, where
found by the commission to constitute a catas-
trophe, a flood, a cyclone, a tornado, or other ca-
tastrophe, or act or civil or military authority di-
rectly affecting the place of employment.
(3) If unemployment is caused by commitment
to a penal institution. (Ex. Sess. 1936, c. 1, s.
5; 1937, c. 448, ss. 2, 3.)
Editor's Note.— The 1937 amendment inserted the second
sentence in subsection (b), and added subsection (e).
§ 8052(6). Claims for benefits. — ■ (a) Filing. —
Claims for benefits shall be made in accordance
with such regulations as the commission may pre-
scribe. Each employer shall post and maintain
printed statements of such regulations in places
readily accessible to individuals in his service, and
shall make available to each such individual, at
the time he becomes unemployed, a printed state-
ment of such regulations. Such printed state-
ments shall be supplied by the commission to each
employer without cost to him.
(b) Initial Determination. — A representative
designated by the commission, and hereinafter
referred to as a deputy, shall promptly examine
the claim and, on the basis of the facts found by
him, shall either determine whether or not such
claim is valid, and if valid, the week with respect
to which benefits shall commence, the weekly
benefit amount payable and the maximum dura-
tion thereof, or shall refer such claim or any
question involved therein to an appeal tribunal or
to the commission, which shall make its determi-
nations with respect thereto in accordance with
the procedure described in subsection (c) of this
section, except that in any case in which the pay-
ment or denial of benefits will be determined by
the provisions of section 8052(5) (d), the deputy
shall promptly transmit his full finding of fact
with respect to that subsection to the commission,
which, on the basis of the evidence submitted and
such additional evidence as it may require, shall
affirm, modify, or set aside such findings of fact
and transmit to the deputy a decision upon the
issues involved under that subsection. The dep-
[340]
§ 8052(6)
UNEMPLOYMENT COMPENSATION
§ 8052(6)
uty shall promptly notify the claimant and any
other interested party of the decision and the rea-
sons therefor. Unless the claimant or any such
interested party, within five calendar days after
such notification was mailed to his last known ad-
dress, files an appeal from such decision, such de-
cision shall be final, and benefits shall be paid or
denied in accordance therewith. If an appeal is
duly filed, benefits with respect to the period prior
to the final determination of the commission shall
be paid only after such determination: Provided,
that if an appeal tribunal affirms a decision of a
deputy, or the commission affirms a decision of an
appeal tribunal, allowing benefits, such benefits
shall be paid regardless of any appeal which may
thereafter be taken, but if such decision is finally
reversed, no employer's account shall be charged
with benefits so paid.
(c) Appeals. — Unless such appeal is withdrawn,
an appeal tribunal, after affording the parties rea-
sonable opportunity for fair hearing, shall affirm
or modify the findings of fact and decision of the
deputy. The parties shall be duly notified of such
tribunal's decision, together with its reasons
therefor, which shall be deemed to be the final
decision of the commission, unless within ten
days after the date of notification or mailing of
such decision further appeal is initiated pursuant
to subsection (e) of this section.
(d) Appeal Tribunals. — To hear and decide dis-
puted claims, the commission shall establish one
or more impartial appeal tribunals consisting in
each case of either a salaried examiner or a body
consisting of three members, one of whom shall
be a salaried examiner, who shall serve as chair-
man, one of whom shall be a representative of
employers and the other of whom shall be a rep-
resentative of employees; each of the latter two
members shall serve at the pleasure of the com-
mission and be paid a fee of not more than five
dollars per day of active service on such tribunal
plus necessary expenses. No person shall partici-
pate on behalf of the commission in any case in
which he is an interested party. The commission
may designate alternates to serve in the absence
or disqualification of any member of an appeal
tribunal. The chairman shall act alone in the ab-
sence or disqualification of any other member and
his alternates. In no case shall the hearings pro-
ceed unless the chairman of the appeal tribunal is
present.
(e) Commission Review. — The commission may
on its own motion affirm, modify, or set aside any
decision of an appeal tribunal on the basis of the
evidence previously submitted in such case, or di-
rect the taking of additional evidence, or may per-
mit any of the parties to such decision to initiate
further appeals before it, or may provide for group
hearings in such cases as the commission may
deem expedient. The commission shall permit
such further appeal by any of the parties inter-
ested in a decision of an appeal tribunal which is
not unanimous and by the deputy whose decision
has been overruled or modified by an appeal tribu-
nal. The commission may remove to itself or
transfer to another appeal tribunal the proceedings
on any claim pending before an appeal tribunal.
Any proceeding so removed to the commission
shall be heard by a quorum thereof in accordance
with the requirements in sub-section (c) of this
[34
section. The commission shall promptly notify
the interested parties of its findings and decision.
(f) Procedure. — The manner in which disputed
claims shall be presented, the reports thereon re-
quired from the claimant and from employers, and
the conduct of hearings and appeals shall be in ac-
cordance with rules prescribed by the commission
for determining the rights of the parties, whether
or not such rules conform to common law or stat-
utory rules of evidence and other technical rules
of procedure. A full and complete record shall be
kept of all proceedings in connection with a dis-
puted claim. All testimony at any hearing upon a
disputed claim shall be recorded, but need not be
transcribed unless the disputed claim is further
appealed.
(g) Witness Fees. — 'Witnesses subpoenaed pur-
suant to this section shall be allowed fees at a rate
fixed by the commission. Such fees and all ex-
penses of proceedings involving disputed claims
shall be deemed a part of the expense of adminis-
tering this chapter.
(h) Appeal to Courts. — Any decision of the
commission, in the absence of an appeal therefrom
as herein provided, shall become final ten days
after the date of notification or mailing thereof,
and judicial review thereof shall be permitted only
after any party claiming to be aggrieved thereby
has exhausted his remedies before the commission
as provided by this chapter. The commission
shall be deemed to be a party to any judicial ac-
tion involving any such decision, and may be rep-
resented in any such judicial action by any quali-
fied attorney who has been designated by it for
that purpose.
(i) Appeal Proceedings. — The decision of the
commission shall be final, subject to appeal as
herein provided. Within ten days after the deci-
sion of the commission has become final, any
party aggrieved thereby may appeal to the supe-
rior court of the county of his residence. In case
of such appeal, the court shall have power to
make party-defendant any other party which it
may deem necessary or proper to a just and fair
determination of the case. In every case in which
appeal is demanded, the appealing party shall file
a statement with the commission within the time
allowed for appeal, in which shall be plainly stated
the grounds upon which a review is sought and the
particulars in which it is claimed the commission
is in error with respect to its decision. The com-
mission shall make a return to the notice of ap-
peal, which shall consist of all documents and pa-
pers necessary to an understanding of the appeal,
and a transcript of all testimony taken in the mat-
ter, together with its findings of fact and decision
thereon, which shall be certified and filed with the
superior court to which appeal is taken within
thirty days of said notice of appeal. The commis-
sion may also, in its discretion, certify to such
court questions of law involved in any decision by
it. In any judicial proceeding under this section
the findings of the commission as to the facts, if
there is evidence to support it, and in the absence
of fraud, shall be conclusive, and the jurisdiction
of said court shall be confined to questions of law.
Such actions and the questions so certified shall
be heard in a summary manner, and shall be given
precedence over all civil cases, except cases aris-
ing under the Workmen's Compensation Law of
this state. An appeal may be taken from the de-
1]
§ 8052(7)
UNEMPLOYMENT COMPENSATION
§ 8052(8)
cision of the superior court, as provided in civil
cases. No bond shall be required upon such ap-
peal. Upon the final determination of the case or
proceeding the commission shall enter an order in
accordance with such determination. Such an ap-
peal shall not act as a supersedeas or stay of any
judgment, order, or decision of the court below,
or of the commission unless the commission or
the court shall so order as to the decision ren-
dered by it. (Ex. Sess. 1936, c. 1, s. 6; 1937, cc.
150, 448, s. 4.)
Editor's Note.— The first 1937 amendment omitted the
requirement that attorneys representing the commission as
mentioned in subsection (h) be regular employees of the
•commission. The second 1937 amendment inserted the
■words beginning "or may provide" at the end of the first
sentence of subsection (e).
1 8052(7). Contributions.— (a) Payment.— (1)
On and after January one, one thousand nine
hundred and thirty-six, contributions shall accrue
and become payable by each employer for each
calendar year in which he is subject to this chap-
ter, with respect to wages payable for employ-
ment (as denned in section 8052(19) (g)) occur-
ring during such calendar year. Such contributions
shall become due and be paid by each em-
ployer to the commission for the fund in accord-
ance with such regulation as the commission may
prescribe, and shall not be deducted, in whole or
in part, from the remuneration of individuals in
his employ.
(2) In the payment of any contributions, a frac-
tional part of a cent shall be disregarded unless it
amounts to one-half cent or more, in which case
it shall be increased to one cent.
(b) Rate of Contribution. — Each employer shall
pay contributions equal to the following percent-
ages of wages payable by him with respect to em-
ployment:
(1) Nine-tenths of one per centum with respect
to employment during the calendar year one thou-
sand nine hundred and thirty-six;
(2) One and eight-tenths per centum with re-
spect to employment during the calendar year one
thousand nine hundred and thirty-seven;
(3) Two and seven-tenths per centum with re-
spect to employment during the calendar year one
thousand nine hundred and thirty-eight, and each
year thereafter.
(c) Future Rates Based on Benefit Experience.
— (1) The commission shall maintain a separate
account for each employer, and shall credit his ac-
count with all the contributions which he has paid
on his own behalf. But nothing in this chapter
shall be construed to grant any employer or indi-
viduals in his service prior claims or rights to> the
amounts paid by him into the fund, either on his.
own behalf or on behalf of such individuals. Ben-
efits paid to an eligible individual shall be charged
against the account of his most recent employers
against whose accounts the maximum charges
hereunder have not previously been made in the
inverse chronological order in which the employ-
ment of such individual occurred, but the maxi-
mum amount so charged against the account of
any employer shall not exceed one-sixth of the
wages payable to such individual by each such
employer for employment which occurs on and
after the first day of such individual's base period,
or sixty-five dollars per completed calendar quar-
ter or portion thereof, whichever is the lesser.
The commission shall by general rules prescribe
the _ manner in which benefits shall be charged
against the accounts of several employers for
whom an individual performed employment dur-
ing the same week.
(2) The commission may prescribe regulations
for the establishment, maintenance, and dissolu-
tion of joint accounts by two or more employers,
and shall, in accordance with such regulations and
upon application by two or more employers to es-
tablish such an account, or to merge their several
individual accounts in a joint account, maintain
such joint account as if it constituted a single em-
ployer's account.
(3) Commission to Make Study and Report as
to Amendment Providing Rates Based on Bene-
fit Experience. — As soon as possible after the ef-
fective date of this chapter the commission shall
begin a study of the subject of unemployment
compensation in relation to the advisability of
amending the law so as to provide for the setting
up and operation of a merit rating system and/or
a reserve account system, and of such other
amendments and improvements as experience may
suggest. To this end they shall keep such ac-
counts and records, and demand and receive such
reports from employing units as in their opinion
may be deemed necessary for the purpose, may
hold hearings, subpoena witnesses and cause them
to attend, compel production of books and docu-
ments, and shall exercise such other powers as
may be deemed necessary in connection with the
said study; and they shall, within thirty days of
the convening of the legislature of one thousand
nine hundred and thirty-nine, report their find-
ings and conclusions in such detail as they may
deem necessary to the governor of the state, who
shall make the same available to the members of
the legislature. (Ex. Sess. 1936, c. 1, s. 7.)
§ 8052(8). Period, election, and termination of
employer's coverage. — (a) Any employing unit
which is or becomes an employer subject to this
chapter within any calendar year shall be subject
to this chapter during the whole of such calendar
year.
(b) Except as otherwise provided in sub-sec-
tion (c) of this section, an employing unit shall
cease to be an employer subject to this chapter
only as of the first day of January of any calendar
year, if it files with the commission, prior to the
fifth day of January of such year, a written ap-
plication for termination of coverage, and the
commission finds that there were no twenty dif-
ferent days, each day being in a different week
within the preceding calendar year, within which
such employing unit employed eight or more in-
dividuals in employment subject to this chapter.
For the purpose of this subsection, the two or
more employing units mentioned in paragraph
(2) or (3) or (4) of section 8052(19) (f) shall be
treated as a single employing unit.
(c) (1) An employing unit, not otherwise sub-
ject to this chapter, which files with the commis-
sion its written election to become an employer
subject hereto for not less than two calendar
years shall, with the written approval of such
election by the commission, become an employer
subject hereto to the same extent as all other
employers, as of the date stated in such approval,
and shall cease to be subject hereto as of Janu-
[342]
§ 8052(9)
UNEMPLOYMENT COMPENSATION
§ 8052(9)
ary one of any calendar year subsequent to such employment trust fund. Moneys in the clearing
two calendar years only if, at least thirty days
prior to such first day of January, it has filed with
the commission a written notice to that effect.
(2) Any employing unit for which services that
do not constitute employment as defined in this
chapter are performed may file with the commis-
sion a written election that all such services per-
formed by individuals in its employ, in one or
more distinct establishments or places of business,
shall be deemed to constitute employment for all
the purposes of this chapter for not less than two
calendar years. Upon the written approval of
such election by the commission such services
shall be deemed to constitute employment sub-
ject to this chapter from and after the date stated
in such approval. Such services shall cease to be
deemed employment, subject hereto as of Janu-
ary one of any calendar year subsequent to such
two calendar years only if, at least thirty days
prior to such first day of January, such employ-
ing unit has filed with the commission a written
notice to that effect. (Ex. Sess. 1936, c. 1, s. 8.)
§ 8052(9). Unemployment compensation fund.
— (a) Establishment and Control. — There is here-
by established as a special fund, separate and apart
from all public moneys or funds of this state, an
unemployment compensation fund, which shall he
administered by the commission exclusively for
the purposes of this chapter. This fund shall con-
sist of (1) all contributions collected under this
chapter, together with any interest thereon col-
lected pursuant to section 8062(14) ; (2) all fines
and penalties collected pursuant to the provisions
of this chapter; (3) interest earned upon any mon-
eys in the fund; (4) any property or securities ac-
quired through the use of moneys belonging to
the fund; and (5) all earnings of such property or
securities. All moneys in the fund shall be min-
gled and undivided.
(b) Accounts and Deposit. — The state treasurer
shall be ex officio the treasurer and custodian of
the fund who shall disburse such fund in accord-
ance with the directions of the commission and in
accordance with such regulations as the commis-
sion shall prescribe. He shall maintain within the
fund three separate accounts: (1) a clearing ac-
count, (2) an unemployment trust fund account,
and (3) a benefit account. All moneys payable to
the fund, upon receipt thereof by the commission,
shall be forwarded immediately to the treasurer
who shall immediately deposit them in the clearing
account. Refunds payable pursuant to section
8052(14) may be paid from the clearing account
upon warrants issued upon the treasurer by the
state auditor under the requisition of the commis-
sion. After clearance thereof, all other moneys in
the clearing account shall be immediately depos-
ited with the secretary of the treasury of the
United States of America to the credit of the ac-
count of this state in the unemployment trust fund,
established and maintained pursuant to section
nine hundred and four of the Social Security Act,
as amended, any provision of law in this state re-
lating to the deposit, administration, release, or
disbursement of moneys in the possession or cus-
tody of this state to the contrary notwithstanding.
The benefit account shall consist of all moneys
requisitioned from this state's account in the un-
and benefit accounts may be deposited by the
treasurer, under the direction of the commission,
in any bank or public depository in which general
funds of the state may be deposited, but no public
deposit insurance charge or premium shall be paid
out of the fund. The treasurer shall give a sep-
arate bond, conditioned upon the faithful perform-
ance of those duties as custodian of the fund, in
an amount fixed by the commission and in a form
prescribed by law or approved by the attorney-
general. Premiums for said bond shall be paid
from the administration fund.
(c) Withdrawals. — Moneys shall be requisi-
tioned from this state's account in the unemploy-
ment trust fund solely for the payment of benefits
and in accordance with regulations prescribed by
the commission. The commission shall, from time
to time, requisition from the unemployment trust
fund such amounts, not exceeding the amounts
standing to its account therein, as it deems neces-
sary for the payment of benefits for a reasonable
future period. Upon receipt thereof the treasurer
shall deposit such moneys in the benefit account
and shall pay all warrants drawn thereon foy the
state auditor requisitioned by the commission for
the payment of benefits solely from such benefit
account. Expenditures of such moneys in the ben-
efit account and refunds from the clearing account
shall not be subject to approval of the budget bu-
reau or any provisions of law requiring specific
appropriations or other formal release by state of-
ficers of money in their custody. All warrants
issued upon the treasurer for the payment of bene-
fits and refunds shall bear the signature of the
state auditor, as requisitioned by a member of the
commission or its duly authorized agent for that
purpose. Any balance of moneys requisitioned
from the unemployment trust fund which remains
unclaimed or unpaid in the benefit account after
the expiration of the period for which such sums
were requisitioned shall either be deducted from
estimates for, and may be utilized for the payment
of, benefits during succeeding periods, or, in the
discretion of the commission, shall be re-deposited
with the secretary of the treasury of the United
States of America, to the credit of this state's ac-
count in the unemployment trust fund, as provided
in subsection (b) of this section.
(d) Management of Funds upon Discontinuance
of Unemployment Trust Fund. — The provisions of
subsections (a), (b), and (c), to the extent that
they relate to the unemployment trust fund, shall
be operative only so1 long as such unemployment
trust fund continues to exist, and so long as the
secretary of the treasury of the United States of
America continues to maintain for this state a sep-
arate book account of all funds deposited therein
by this state for benefit purposes, together with
this state's proportionate share of the earnings of
such unemployment trust fund, from which no
other state is permitted to make withdrawals. If
and when such unemployment trust fund ceases to
exist, or such separate book account is no longer
maintained, all moneys, properties, or securities
therein 'belonging to the unemployment compensa-
tion fund of this state shall be transferred to the
treasurer of the unemployment compensation fund,
who shall hold, invest, transfer, sell, deposit, and
[ 343
§ 8052(10)
UNEMPLOYMENT COMPENSATION
§ 8052(11)
release such moneys, properties, or securities in a
manner approved by the commission, in accord-
ance with the provisions of this chapter: Provided,
that such moneys shall be invested in the follow-
ing readily marketable classes of securities: Bonds
or other interest-bearing obligations of the United
States of America or such investments as are now
permitted by law for sinking funds of the state of
North Carolina; and provided further, that such
investment shall at all times be so made that all
the assets of the fund shall always be readily con-
vertible into cash when needed for the payment of
benefits. The treasurer shall dispose of securities
or other properties belonging to the unemploy-
ment compensation fund only under the direction
of the commission. (Ex. Sess. 1936, c. 1, s. 9.)
§ 8052(10). Unemployment compensation com-
mission.— (a) Organization. — There is hereby cre-
ated a commission to be known as the unemploy-
ment compensation commission of North Carolina.
The commission shall consist of three members,
two of whom shall be appointed by the governor
within thirty days after the passage of this chap-
ter. In case of any vacancy occurring in the
membership of such commission as to the two
members thereof appointed by the governor, such
vacancy shall be filled by appointment by the
governor. The commissioner of labor shall be ex
officio the third member of the unemployment
compensation commission with the same powers
and duties as other members of the commission.
The governor shall have the power to designate
the member of said commission who shall act as
the chairman thereof. The person designated
as chairman shall act as chairman for such time
as shall be determined by the governor. During
the term of membership on the commission of any
member so< appointed by the governor, such mem-
ber shall not engage in any other business, voca-
tion, or employment, or serve as an officer or a
committee member of any political party organi-
zation. One of the members appointed by the
governor shall be appointed to serve for a term of
two years after his appointment. The person ap-
pointed to succeed such member whose term ex-
pires as aforesaid shall be appointed to serve for
a term of six years thereafter. One of the mem-
bers of said commission to be appointed by the
governor shall serve for a term of six years after
his appointment. The person appointed by the
governor to succeed such member shall be ap-
pointed for a term of six years. Any member ap-
pointed to fill a vacancy occurring in the appoint-
ments made by the governor prior to the expira-
tion of the term for which his predecessor was
appointed shall be appointed for the remainder of
such term. The governor may at any time, after
notice and hearing, remove any commissioner for
gross inefficiency, neglect of duty, malfeasance,
misfeasance, or nonfeasance in office.
(d) Divisions. — The commission shall establish
two co-ordinate divisions: the North Carolina
state employment service division, created pursu-
ant to section 8052(12), and the unemployment
compensation division. Each division shall be re-
sponsible for the discharge of its distinctive func-
tions. Each division shall be a separate adminis-
trative unit with respect to personnel, budget, and
duties, except in so far as the commission may
find that such separation is impracticable.
(c) Salaries. — Each commissioner appointed by
the governor shall be paid from the unemployment
compensation administration fund a salary payable
on a monthly basis, which salary shall be fixed by
the governor, with the approval of the council of
state. The compensation of the commissioner of
labor as the third member of the said commission,
ex officio, shall be the same as now fixed by law
and paid as now prescribed by law.
(d) Quorum. — Any two commissioners shall
constitute a quorum. No vacancy shall impair the
right of the remaining commissioners to exercise
all of the powers of the commission. (Ex. Sess.
1936, c. 1, s. 10.)
§ 8052(11). Administration. — (a) Duties and
Powers of Commission. — It shall be the duty of
the commission to administer this chapter; and it
shall have power and authority to adopt, amend,
or rescind such rules and regulations, to employ
such persons, make such expenditures, require
such reports, make such investigations, and take
such other action as it deems necessary or suit-
able to that end. Such rules and regulations shall
be effective upon publication in the manner, not
inconsistent with the provisions of this chapter,
which the commission shall prescribe. The com-
mission shall determine its own organization and
methods of procedure in accordance with the pro-
visions of this chapter, and shall have an official
seal which shall be judicially noticed. Not later
than the first day of February of each year, the
commission shall submit to the governor a report
covering the administration and operation of this
chapter during the preceding calendar year, and
shall make such recommendations for amendments
to this chapter as the commission deems proper.
Such report shall include a balance sheet of the
moneys in the fund in which there shall be pro-
vided, if possible, a reserve against the liability in
future years to pay benefits in excess of the then
current contributions, which reserve shall be set
up by the commission in accordance with accepted
actuarial principles on the basis of statistics of em-
ployment, business activity, and other relevant fac-
tors for the longest possible period. Whenever
the commission believes that a change in contribu-
tion or benefit rates will become necessary to pro-
tect the solvency of the fund, it shall promptly so
inform the governor and the legislature, and make
recommendations with respect thereto.
(b) Regulations and General and Special Rules.
— General and special rules may be adopted,
amended, or rescinded by the commission only
after public hearing or opportunity to be heard
thereon, of which proper notice has been given by
mail to last known address in cases of special
rules, or b}^ publication as herein provided, and by
one publication as herein provided as to general
rules. General rules shall become effective ten
days after filing with the secretary of state and
publication in one or more newspapers of general
circulation in this state. Special rules shall be-
come effective ten days after notification to or
mailing to the last known address of the individ-
uals or concerns affected thereby. Regulations
may be adopted, amended, or rescinded by the
[344]
§ 8052(11)
UNEMPLOYMENT COMPENSATION
§ 8052(11)
commission and shall 'become effective in the man-
ner and at the time prescribed by the commission.
(c) Publication. — The commission shall cause to
be printed for distribution to the public the text
of this chapter, the commission's regulations and
general rules, its annual reports to the governor,
and any other material the commission deems rel-
evant and suitable, and shall furnish the same to
any person upon application therefor.
(d) Personnel. — Subject to other provisions of
this chapter, the commission is authorized to ap-
point, fix the compensation, and prescribe the du-
ties and powers of such officers, accountants, at-
torneys, experts, and other persons as may be nec-
essary in the performance of its duties. It shall
provide for the holding of examinations to deter-
mine the qualifications of applicants for the posi-
tions so classified, and except for temporary ap-
pointments, not to exceed six months in duration,
shall appoint its personnel on the basis of effi-
ciency and fitness as determined in such examina-
tions. All positions shall be filled by persons se-
lected and appointed on a non-partisan merit ba-
sis. The commission shall not employ or pay any
person who is an officer or committee member of
any political party organization. The commission
may delegate to1 any such person so appointed such
power and authority as it deems reasonable and
proper for the effective administration of this
chapter, and may, in its discretion, bond any per-
son handling moneys or signing checks hereunder.
(e) Advisory Councils. — The commission shall
appoint a state advisory council and local advisory
councils, composed in each case of an equal num-
ber of employer representatives and employee rep-
resentatives who may fairly be regarded as repre-
sentative because of their vocation, employment,
or affiliations, and of such members representing
the general public as the commission may desig-
nate. Such councils shall aid the commission in
formulating policies and discussing problems re-
lated to the administration of this chapter, and in
assuring impartiality and freedom from political
influence in the solution of such problems. Such
local advisory councils shall serve without com-
pensation, but shall be reimbursed for any neces-
sary expenses. The state advisory council shall
be paid ten dollars per day per each member at-
tending actual sitting of such council, and mile-
age and subsistence as allowed to state officials.
(f) Employment Stabilization. — The commis-
sion, with the advice and aid of its advisory coun-
cils, and through its appropriate divisions, shall
take all appropriate steps to reduce and prevent
unemployment; to encourage and assist in the
adoption of practical methods of vocational train-
ing, retraining and vocational guidance; to inves-
tigate, recommend, advise, and assist in the estab-
lishment and operation, by municipalities, counties,
school districts, and the state, of reserves for pub-
lic works to be used in times of business depression
and unemployment; to promote the re-employ-
ment of unemployed workers throughout the state
in every other way that may be feasible; and to
these ends to carry on and publish the results of
investigations and research studies.
(g) Records and Reports. — Each employing
unit shall keep true and accurate employment rec-
ords, containing such information as the commis-
sion may prescribe. Such records shall be open to
inspection and be subject to being copied by the
commission or its authorized representatives at
any reasonable time and as often as may be nec-
essary. The commission may require from any
employing unit any sworn or unsworn reports,
with respect to persons employed by it, which the
commission deems necessary for the effective ad-
ministration of this chapter. Information thus ob-
tained shall not be published or be open to public
inspection (other than to public employees in the
performance of their public duties) in any manner
revealing the employing unit's identity, but any
claimant at a hearing before an appeal tribunal or
the commission shall be supplied with information
from such records to the extent necessary for the
proper presentation of his claim. Any employee
or member of the commission who violates any
provision of this section shall be fined not less
than twenty dollars nor more than two hundred
dollars, or imprisoned for not longer than ninety
days, or both.
(h) Oaths and Witnesses. — In the discharge of
the duties imposed by this chapter, the chairman
of an appeal tribunal and any duly authorized rep-
resentative or member of the commission shall
have power to administer oaths and affirmations,
take depositions, certify to official acts, and issue
subpoenas to compel the attendance of witnesses
and the production of books, papers, correspond-
ence, memoranda, and other records deemed nec-
essary as evidence in connection with a disputed
claim or the administration of this chapter.
(i) Subpoenas. — In case of contumacy by, or re-
fusal to obey a subpoena issued to any person, any
court of this state, within the jurisdiction of which
the inquiry is carried on or within the jurisdiction
of which said person guilty of contumacy or re-
fusal to obey is found or resides or transacts
business, upon application by the commission or
its duly authorized representative, shall have juris-
diction to issue to such person an order requiring
such person to appear before a commissioner, the
commission, or its duly authorized representative,
there to produce evidence if so ordered, or there
to give testimony touching the matter under in-
vestigation or in question; and any failure to obey
such order of the court may be punished by said
court as a contempt thereof. Any person who
shall without just cause fail or refuse to attend
and testify or to answer any lawful inquiry or to
produce books, papers, correspondence, memo-
randa, and other records, if it is in his power so
to do, in obedience to a subpoena of the commis-
sion, shall be punished 'by a fine of not less than
fifty dollars nor more than two hundred dollars,
or by imprisonment for not longer than sixty days,
or by both such fine and imprisonment, and each
day such violation continues shall be deemed to be
a separate offense.
(j) Protection against Self-incrimination. — No
person shall be excused from attending and testi-
fying or from producing books, papers, corre-
spondence, memoranda, and other records before
the commission or in obedience to the subpoena of
the commission or any member thereof, or any
duly authorized representative of the commission,
in any cause or proceeding before the commission,
on the ground that the testimony or evidence, doc-
[345]
§ 8052(12)
UNEMPLOYMENT COMPENSATION
§ 8052(13)
umentary or otherwise, required of him may tend
to incriminate him or subject him to a penalty or
forfeiture; but no individual shall be prosecuted or
subjected to any penalty or forfeiture for or on ac-
count of any transaction, matter, or thing con-
cerning which he is compelled, after having
claimed his privilege against self-incrimination, to
testify or produce evidence, documentary or other-
wise, except that such individual so testifying shall
not be exempt from prosecution and punishment
for perjury committed in so testifying.
(k) State-Federal Co-Operation. — In the admin-
istration of this chapter, the commission shall co-
operate, to the fullest extent consistent with the
provisions of this chapter, with the social security
board, created by the Social Security Act, ap-
proved August fourteenth, one thousand nine hun-
dred and thirty-five, as amended; shall make such
reports, in such form and containing such infor-
mation as the social security board may from time
to time require, and shall comply with such provi-
sions as the social security hoard may from time
to time find necessary to assure the correctness
and verification of such reports; and shall comply
with the regulations prescribed by the social secu-
rity board governing the expenditures of such
sums as may be allotted and paid to this state un-
der Title III of the Social Security Act for the
purpose of assisting in the administration of this
chapter.
Upon request therefor, the commission shall fur-
nish to any agency of the United States charged
with the administration of public works or assist-
ance through public employment, the name, ad-
dress, ordinary occupation, and employment status
of each recipient of benefits, and such recipient's
rights to further benefits under this chapter.
(1) Reciprocal Benefit Arrangements. — The
commission is hereby authorized to enter into ar-
rangements with the appropriate agencies of other
states or the federal government whereby poten-
tial rights to benefits accumulated under the un-
employment compensation laws of several states
or under such a law of the federal government, or
both, may constitute the basis for the payment of
benefits through a single appropriate agency un-
der terms which the commission finds will be fair
and reasonable as to all affected interests and will
not result in any substantial loss to the fund. (Ex.
Sess. 1936, c. 1, s. 11.)
§ 8052(12). Employment service. — (a) State
Employment Service. — ■ The state employment
service created by chapter one hundred and six,
Public Laws of one thousand nine hundred and
thirty-five, and acts amended thereby [§ 7312(a)
et seq.], is hereby transferred to the commission
as a division thereof, which shall establish and
maintain free public employment offices in such
number and in such places as may be necessary
for the proper administration of this chapter, and
for the purpose of performing such duties as are
within the purview of the act of Congress entitled
"An act to provide for the establishment of a na-
tional employment system and for co-operation
with the states in the promotion of such system,
and for other purposes," approved June sixth, one
thousand nine hundred and thirty-three (48 Stat.,
113; U. S. C, Title 29, sec. 49 (c) ), as amended.
The said division shall be administered by a full-
time salaried director, who shall be charged with
the duty to co-operate with any official or agency
of the United States having powers or duties un-
der the provisions of the said act of congress, as
amended, and to do and perform all things neces-
sary to secure to this state the benefits of the said
act of congress, as amended, in the promotion and
maintenance of a system of public employment of-
fices. The provisions of the said act of congress,
as amended, are hereby accepted by this state, in
conformity with section four of said act, and this
state will observe and comply with the require-
ments thereof. The state employment service di-
vision is hereby designated and constituted the
agency of this state for the purpose of said act.
The commission is directed to appoint the direc-
tor, other officers, and employees of the state em-
ployment service. Such appointments shall be
made in accordance with regulations prescribed by
the director of the United States employment serv-
ice.
(b) Financing. — . All moneys received by this
state under the said act of congress, as amended,
shall be paid into the special "employment service
account" in the unemployment compensation ad-
ministration fund, and said moneys are hereby
made available to the state employment service to
be expended as provided >by this section and by
said act of congress. For the purpose of estab-
lishing and maintaining free public employment
offices, said division is authorized to enter into
agreements with any political subdivision of this
state or with any private, non-profit organization,
and as a part of any such agreement the commis-
sion may accept moneys, services, or quarters as a
contribution to the employment service account.
(Ex. Sess. 1936, c. 1, s. 12.)
§ 8052(13). Unemployment compensation ad-
ministration fund. — <a) Special Fund. — There is
hereby created in the state treasury a special fund
to be known as the unemployment compensation
administration fund. All moneys which are de-
posited or paid into this fund are hereby appropri-
ated and made available to the commission. The
unemployment compensation administration fund,
except as otherwise provided in this chapter, shall
be subject to the provisions of the Executive
Budget Act, chapter one hundred, Public Laws
one thousand nine hundred and twenty-nine [§
748'6(ggl) et seq.], the provisions of the Personnel
Act, chapter two hundred and seventy-seven,
Public Laws one thousand nine hundred and
thirty-one, and chapter forty-six, Public Laws of
one thousand nine hundred and thirty-three [■■§§
7521 (k) -7521 (y)], which are re-enacted in the first
paragraph of section seventeen of chapter three
hundred and six, Public Laws one thousand nine
hundred and thirty-five. Any provisions herein
made shall be subject to the provisions of the act
of congress entitled "An act to provide for the es-
tablishment of a national employment system, and
for the co-operation with the states in the promo-
tion of such system, and for other purposes," ap-
proved June sixth, one thousand nine hundred and
thirty-three (48 Stat., 113; U. S. C, Title 29, sec.
49 (c) ), as amended, as the same may affect the
state employment service and the employment
service account hereinafter referred to. All mon-
eys in this fund shall be expended solely for the
[ 346 ]
§ 8052(14)
UNEMPLOYMENT COMPENSATION
§ 8052(14)
purpose of defraying the cost of the administra-
tion of this chapter, and for no other purpose
whatsoever. The fund shall consist of all moneys
appropriated by this state, and all moneys received
from the United States of America, or any agency
thereof, including the social security board and the
United States employment service, or from any
other source, for such purpose. All moneys in this
fund shall be deposited, administered, and dis-
bursed in the same manner and under the same
conditions and requirements as is provided by law
for other special funds in the state treasury. Any
balances in this fund shall not lapse at any time,
but shall be continuously available to the commis-
sion for expenditure consistent with this chapter.
The state treasurer shall give a separate and ad-
ditional bond, conditioned upon the faithful per-
formance of his duties in connection with the un-
employment compensation administration fund, in
an amount to be fixed by the commission and in
a form prescribed by law or approved by the at-
torney-general. The premiums for such bond, and
the premiums for the bond given by the treasurer
•of the unemployment compensation fund under
section 8052(9), shall be paid from the moneys in
the unemployment compensation administration
fund.
(b) Employment Service Account. — A special
"employment service account" shall be maintained
as a part of the unemployment compensation ad-
ministration fund for the purpose of maintaining
the public employment offices established pursu-
ant to section 8052(12), and for the purpose of co-
operating with the United States employment
service. There is hereby appropriated out of the
appropriation made by chapter one hundred and
six of the Public Laws of one thousand nine hun-
dred and thirty-five [§ 7312(a) et seq.], after the
provision for liquidation of all outstanding obliga-
tions of the state employment service, all of the
unexpended portion of said appropriations for the
fiscal year beginning July first, one thousand nine
hundred and thirty-six, and ending June thirtieth,
one thousand nine hundred and thirty-seven, to
the commission created by this chapter, for the
purpose of paying the state's contribution towards
the expenses of the administration of the state
employment service created by the provisions of
chapter one hundred and six, Public Laws one
thousand nine hundred and thirty-five [§ 7312(a)
et seq.], and transferred under the provisions of
this chapter as a division to be set up by said com-
mission. And for the said purpose, there is here-
by appropriated annually to the said commission
the sum of seventy-five thousand dollars. In ad-
dition, there shall be paid into such account the
moneys designated in section 8052(12) (b), and
such moneys as are apportioned for the purpose of
this account from any moneys received, or which
may be received by this state under Title III of the
Social Security Act, as amended. (Ex. Sess. 1936,
c. 1, s. 13.)
§ 8052(14). Collection of contributions. — (a)
Interest on Past-Due Contributions. — Contribu-
tions unpaid on the date on which they are due
and payable, as prescribed by the commission,
shall bear interest at the rate of one per centum
per month from and after such date until payment
plus accrued interest is received by the commis-
sion. Interest collected pursuant to this subsec-
tion shall be paid into the unemployment compen-
sation fund.
Ob) Collection. — If, after due notice, any em-
ployer defaults in any payment of contributions or
interest thereon, the amount due shall be collected
by civil action in the name of the commission, and
the employer adjudged in default shall pay the
costs of such action. Civil actions brought under
this section to collect contributions or interest
thereon from an employer shall be heard by the
court at the earliest possible date, and shall be en-
titled to preference upon the calendar of the court
over all other civil actions except petitions for ju-
dicial review under this chapter and cases arising
under the Workmen's Compensation Law of this
state; or if any contribution imposed by this chap-
ter, or any portion thereof, and/or penalties duly
provided for the nonpayment thereof shall not be
paid within thirty days after the* same become due
and payable, the commission under the hand of
its chairman, may certify the same in duplicate
and forward one copy thereof to the clerk of the
superior court of the county in which the delin-
quent resides or has property, and additional cop-
ies for each county in which the commission has
reason to believe such delinquent has property
located, which copy so forwarded to the clerk of
the superior court shall be immediately docketed
by said clerk and indexed on the cross-index of
judgment, and from the date of such docketing
shall constitute a preferred lien upon any property
which said delinquent may own in said county,
with the same force and effect as a judgment ren-
dered by the superior court. The duplicate of said
certificate shall be forwarded by the commission
to the sheriff or sheriffs of such county, or coun-
ties, and in the hands of such sheriff shall have
all the force and effect of an execution issued to
him by the clerk of the superior court upon the
judgment of the superior court duly docketed in
said county. A return of such execution shall be
made to the commission together with all moneys
collected thereunder.
(c) Priorities under Legal Dissolution or Dis-
tributions.— In the event of any distribution of an
employer's assets pursuant to an order of any
court under the laws of this state, including any
receivership, assignment for benefit of creditors,
adjudicated insolvency, composition, or similar
proceeding, contributions then or thereafter due
shall be paid in full prior to all other claims ex-
cept taxes, and claims for remuneration of not
more than two hundred and fifty dollars to each
claimant, earned within six months of the com-
mencement of the proceeding. In the event of an
employer's adjudication in bankruptcy, judicially
confirmed extension -proposal, or composition, un-
der the Federal Bankruptcy Act of one thousand
eight hundred and ninety-eight, as amended, con-
tributions then or thereafter due shall be entitled
to such priority as is provided in section sixty-four
(b) of that act (U. S. C, Title II, sec. 104 (b), as
amended.
(d) Refunds. — If not later than one year after
the date on which any contributions or interest
thereon became due, an employer who has paid
such contributions or interest thereon shall make
[347]
§ 8052(15)
UNEMPLOYMENT COMPENSATION
§ 8052(17)
application for an adjustment thereof in connec-
tion with subsequent contribution payments, or
for a refund thereof because such adjustment can-
not be made, and the commission shall determine
that such contributions or interest or any portion
thereof was erroneously collected, the commission
shall allow such employer to make an adjustment
thereof, without interest, in connection with sub-
sequent contribution payments by him, or if such
adjustment cannot be made, the commission shall
refund said amount, without interest, from the
fund. For like cause and within the same period,
adjustment or refund may be so made on the com-
mission's own initiative. (Ex. Sess. 1936, c. 1,
s. 14.)
§ 8052(15). Protection of rights and benefits. —
(a) Waiver of Rights Void. — Any agreement by
an individual to waive, release, or commute his
rights to benefits or any other rights under this
chapter shall be void. Any agreement by any in-
dividual in the employ of any person or concern
to pay all or any portion of an employer's contri-
butions, required under this chapter from such em-
ployer, shall be void. No employer shall directly
or indirectly make or require or accept any deduc-
tion from the remuneration of individuals in his
employ to finance the employer's contributions re-
quired from him, or require or accept any waiver
of any right hereunder by any individual in his
employ. Any employer or officer or agent of an
employer who violates any provision of this sub-
section shall, for each offense, be fined not less
than one hundred dollars nor more than one thou-
sand dollars or be imprisoned for not more than
six months, or both.
(b) Limitation of Fees. — No individual claim-
ing benefits shall be charged fees of any kind in
any proceeding under this chapter by the commis-
sion or its representatives or by any court or any
officer thereof. Any individual claiming benefits
in any proceeding before the commission or a
court may be represented by counsel; but no such
counsel shall either charge or receive for such
services more than an amount approved by the
commission. Any person who violates any pro-
vision of this subsection shall, for each such of-
fense, be fined not less than fifty dollars nor more
than five hundred dollars or imprisoned for not
more than six months, or both.
(c) No Assignment or Benefits; Exemptions. —
Any assignment, pledge, or encumbrance of any
right to benefits which are or may become due or
payable under this chapter shall be void; and such
rights to benefits shall be exempt from levy, exe-
cution, attachment, or any other remedy whatso-
ever provided for the collection of debt; and bene-
fits received by any individual, so long as they are
not mingled with other funds of the recipient, shall
be exempt from any remedy whatsoever for the
collection of all debts except debts incurred for
necessaries furnished to such individual or his
spouse or dependents during the time when such
individual was unemployed. Any waiver of any
exemption provided for in this subsection shall be
void. (Ex. Sess. 1936, c. 1, s. 15; 1937, c. 150.)
Editor's Note. — Prior to the 1937 amendment the individual
mentioned in subsection (b) could be represented by a duly
authorized agent as well as by counsel.
§ 8052(16). Penalties. — (a) Whoever makes a
false statement or representation, knowing it to
be false or knowingly fails to disclose a material
fact, to obtain or increase any benefit or other pay-
ment under this chapter, either for himself or for
any other person, shall 'be punished by a fine of
not less than twenty dollars nor more than fifty
dollars, or by imprisonment for not longer than
thirty days, or by both such fine and imprison-
ment; and each such false statement or representa-
tion or failure to disclose a material fact shall con-
stitute a separate offense.
(b) Any employing unit or any officer or agent
of an employing unit or any other person who
makes a false statement or representation knowing
it to be false, or who knowingly fails to disclose
a material fact, to prevent or reduce the payment
of benefits to any individual entitled thereto, or to
avoid becoming or remaining subject hereto, or to
avoid or reduce any contribution or other pay-
ment required from an employing unit under this
chapter, or who wilfully fails or refuses to make
any such contributions or other payment or to fur-
nish any reports required hereunder, or to produce
or permit the inspection or copying of records as
required hereunder, shall be punished by a fine of
not less than twenty dollars nor more than two
hundred dollars or by imprisonment for not longer
than sixty days, or by both such fine and impris-
onment; and each such false statement or repre-
sentation or failure to disclose a material fact, and
each day of such failure or refusal, shall consti-
tute a separate offense.
(c) Any person who shall wilfully violate any
provision of this chapter or any rule or regulation
thereunder, the violation of which is made unlaw-
ful or the observance of which is required under
the terms of this chapter, and for which a penalty
is neither prescribed herein nor provided by any
other applicable statute, shall be punished by a
fine of not less than twenty dollars nor more than
two hundred dollars, or by imprisonment for not
longer than sixty days, or by both such fine and
imprisonment, and each day such violation con-
tinues shall be deemed to be a separate offense.
(d) Any person who, by reason of the non-dis-
closure or misrepresentation by him or 'by another
of a material fact (irrespective of whether such
non-disclosure or misrepresentation was known or
fraudulent), has received any sum as benefits un-
der this chapter while any conditions for the re-
ceipt of benefits imposed by this chapter were not
fulfilled in his case, or while he was disqualified
from receiving benefits, shall, in the discretion of
the commission, either be liable to have such sum
deducted from any future benefits payable to him
under this chapter, or shall be liable to repay to
the commission for the unemployment compensa-
tion fund a sum equal to the amount so received
by him, and such sum shall be collectible in the
manner provided in section 8052<(14) (b) for the
collection of past-due contributions. (Ex. Sess.
1936, c. 1, s. 16.)
§ 8052(17). Representation in court. — (a) In
any civil action to enforce the provisions of this
chapter, the commission and the state may be rep-
resented by any qualified attorney who is desig-
nated by it for this purpose.
(b) All criminal actions for violation of any
provision of this chapter, or of any rules or regu-
[ 348
§ 8052(18)
UNEMPLOYMENT COMPENSATION
§ 8052(19)
lations issued pursuant thereto, shall be prosecuted
as now provided by law 'by the solicitor or by the
prosecuting attorney of any county or city in
which the violation occurs. (Ex. Sess. 1936, c.
1, s. 17; 1937, c. 150.)
Editor's Note.— The 1937 amendment omitted the require-
ment that the attorney be a regular salaried employee of
the commission. .
§ 8052(18). Non-liability of state. — Benefits shall
be deemed to be due and payable under this chap-
ter only to the extent provided in this chapter and
to the extent that moneys are available therefor
to the credit of the unemployment compensation
fund, and neither the state nor the commission
shall be liable for any amount in excess of such
sums. (Ex. Sess. 1936, c. 1, s. 18.)
§ 8052(19). Definitions. — As used in this chap-
ter, unless the context clearly requires otherwise:
(a) (1) "Annual pay roll" means the total
amount of wages payable by an employer (regard-
less of the time of payment) for employment dur-
ing a calendar year.
(2) "Average annual pay roll" means the aver-
age of the annual pay rolls of any employer for
the last three or five preceding calendar years,
whichever average is higher.
(b) "Benefits" means the money payments
payable to an individual, as provided in this chap-
ter, with respect to his unemployment.
(c) "Commission" means the unemployment
compensation commission established by this chap-
ter.
(d) "Contributions" means the money payments
to the state unemployment compensation fund re-
quired by this chapter.
(e) "Employing unit" means any individual or
type of organization, including any partnership,
association, trust, estate, joint-stock company, in-
surance company, or corporation, whether domes-
tic or foreign, or the receiver, trustee in bank-
ruptcy, trustee or successor thereof, or the legal
representative of a deceased person which has, on
or subsequent to January first, one thousand nine
hundred and thirty-six, had in its employ one or
more individuals performing services for it with-
in this state. All individuals performing services
within this state for any employing unit which
maintains two or more separate establishments
within this state shall be deemed to be employed
by a single employing unit for all the purposes of
this chapter. Whenever any employing unit con-
tracts with or has under it any contractor or sub-
contractor for any employment which is part of
its usual trade, occupation, profession, or business,
unless the employing unit as well as each such
contractor or subcontractor is an employer by
reason of subsection (f) of this section, or section
8052(8) (c), the employing unit shall, for all the
purposes of this chapter, be deemed to employ
each individual in the employ of each such con-
tractor or subcontractor for each day during which
such individual is engaged in performing such em-
ployment, except that each such contractor or sub-
contractor who is an employer by reason of sub-
section (f) of this section or section 8052(8) (c)
shall alone be liable for the contributions measured
by wages payable to individuals in his employ, and
except that any employing unit who shall become
liable for and pay contributions with respect to
individuals in the employ of any such contractor
or subcontractor who is not an employer by reason
of subsection (f) of this section or section 8052(8)
(c), may recover the same from such contractor or
subcontractor. Each individual employed to per-
form or to assist in performing the work of any
agent or employee of an employing unit shall be
deemed to be employed by such employing unit
for all the purposes of this chapter, whether such
individual was hired or paid directly by such em-
ploying unit or by such agent or employee, pro-
vided the employing unit had actual or construc-
tive knowledge of such work.
(f) "Employer" means (1) Any employing unit
which in each of twenty different weeks within
either the current or the preceding calendar year
(whether or not such weeks are or were consecu-
tive) has, or had in employment, eight or more
individuals (not necessarily simultaneously and ir-
respective of whether the same individuals are or
were employed in each such week) ;
(2) Any employing unit which acquired the or-
ganization, trade or business or substantially all
the assets thereof, of another which at the time
of such acquisition was an employer subject to
this chapter;
(3) Any employing unit which acquired the or-
ganization, trade, or business, or substantially all
the assets thereof, of another employing unit and
which, if treated as a single unit with such other
employing unit, would be an employer under par-
agraph (1) of this subsection;
(4) Any employing unit which, together with
one or more other employing units, is owned or
controlled (by legally enforceable means or other-
wise), directly or indirectly by the same interest,
or which owns or controls one or more other em-
ploying units (by legally enforceable means or
otherwise), and which, if treated as a single unit
with such other employing unit, would be an em-
ployer under paragraph (1) of this subsection;
(5) Any employing unit which, having become
an employer under paragraphs (1), (2), (3), or
(4), has not, under section 80-52(8), ceased to be
an employer subject to this chapter; or
(6) For the effective period of its election pur-
suant to section 8052(8) (c) any other employing
unit which has elected to become fully subject to
this chapter.
(g) (1) "Employment" means service, includ-
ing service in interstate commerce, performed for
remuneration or under any contract of hire, writ-
ten or oral, express or implied.
(2) The term "employment" shall include an in-
dividual's entire service, performed within or both
within and without this state if:
(A) The service is localized in this state; or
(B) The service is not localized in any state but
some of the service is performed in this state, and
(i) the base of operations, or, if there is no base
of operations, then the place from which such
service is directed or controlled, is in this state;
or (ii) the base of operations or place from which
such service is directed or controlled is not in any
state in which some part of the service is per-
formed, but the individual's residence is in this
state.
(3) Services performed within this state but
not covered under paragraph (2) of this subsec-
[349]
§ 8052(19)
UNEMPLOYMENT COMPENSATION
§ 8052(19)
tion shall be deemed to be employment subject to
this chapter, if contributions are not required and
paid with respect to such services under an un-
employment compensation law of any other state
or of the federal government.
(4) Services not covered under paragraph (2)
of this subsection, and performed entirely without
this state, with respect to no part of which contri-
butions are required and paid under an unemploy-
ment compensation law of any other state or of
the federal government, shall be deemed to be
employment subject to this chapter if the individ-
ual performing such service is a resident of this
state and the commission approves the election of
the employing unit for whom such services are
performed that the entire service of such individ-
ual shall be deemed to be employment subject to
this chapter.
(5) Service shall be deemed to be localized
within a state if
(A) The service is performed entirely within
such state; or
(B) The service is performed both within and
without such state, but the service performed
without such state is incidental to the individual's
service within the state; for example, is temporary
or transitory in nature or consists of isolated
transactions.
(6) Services performed by an individual for re-
muneration shall be deemed to be employment
subject to this chapter unless and until it is shown
to the satisfaction of the commission that:
(A) Such individual has been and will continue
to be free from control or direction over the per-
formance of such services, both under his contract
of service and in fact; and
(B) Such service is either outside the usual
course of the business for which such service is
performed, or that such service is performed out-
side of all the places of business of the enterprise
for which such service is performed; and
(C) Such individual is customarily engaged in
an independently established trade, occupation,
profession, or business.
(7) The term "employment" shall not include:
(A) Service performed in the employ of this
state, or of any political subdivision thereof, or of
any instrumentality of this state or its political
subdivisions;
(B) Service performed in the employ of any
other state or its political subdivisions, or of the
United States government, or of an instrumental-
ity of any other state or states or their political
subdivisions or of the United States;
(C) Service with respect to which unemploy-
ment compensation is payable under an unemploy-
ment compensation system established by an act
of congress: Provided, that the commission is
hereby authorized and directed to enter into
agreements with the proper agencies under such
act of congress, which agreements shall become
effective ten days after publication thereof in the
manner provided in section 8052(11) (b) for gen-
eral rules, to provide reciprocal treatment to indi-
viduals who have, after acquiring potential rights
to benefits under this chapter, acquired rights to
unemployment compensation under act of con-
gress, or who have, after acquiring potential rights
to unemployment compensation under such act of
congress, acquired rights to benefits under this
chapter;
(D) Agricultural labor;
(E) Domestic service in a private home;
(F) Service performed as an officer or member
of the crew of a vessel on the navigable waters of
the United States;
(G) Service performed by an individual in the
employ of his son, daughter, or spouse, and serv-
ice performed by a child under the age of twenty-
one in the employ of his father or mother;
(H) Service performed in the employ of a cor-
poration, community chest, fund, or foundation,
organized and operated exclusively for religious,
charitable, scientific, literary, or educational pur-
poses, or for the prevention of cruelty to children
or animals, no part of the net earnings of which
inures to the benefit of any private shareholder or
individual.
(h) "Employment office" means a free public
employment office, or branch thereof, operated by
this state or maintained as a part of a state-con-
trolled system of public employment offices.
(i) "Fund" means the unemployment compen-
sation fund established by this chapter, to which
all contributions required and from which all ben-
efits provided under this chapter shall be paid.
(j) "State" includes, in addition to the states of
the United States of America, Alaska, Hawaii, and
the District of Columbia.
(k) "Total and partial unemployment."
(1) An individual shall be deemed "totally un-
employed" in any week with respect to which no
remuneration is payable to him and during which
he performs no services (other than odd jobs or
subsidiary work for which no remuneration, as
used in this subsection, is payable to him).
(2) An individual shall be deemed "partially un-
employed" in any week of less than full-time work
if his remuneration payable for such week is less
than six-fifths of the weekly benefit amount he
would be entitled to receive if totally unemployed
and eligible.
(3) As used in this sub-section, the term "re-
muneration" shall include only that part of remu-
neration for odd jobs or subsidiary work, or both,
which is in excess of $3.00 in any one week.
(4) An individual's week of unemployment
shall be deemed to commence only after his reg-
istration at an employment office, except as the
commission may by regulation otherwise pre-
scribe.
(1) "Unemployment compensation administra-
tion fund" means the unemployment compensa-
tion administration fund established by this chap-
ter, from which administrative expenses under
this chapter shall be paid.
(m) "Wages" means all remuneration payable
by employers for employment.
(n) "Remuneration" means all compensation
payable for personal services including commis-
sions and bonuses and the cash value of all com-
pensation payable in any medium other than cash.
Gratuities customarily received by an individual
in the course of his employment from persons
other than his employing unit shall be treated as
remuneration payable by his employing unit. The
reasonable cash value of compensation payable in
any medium other than cash, and the reasonable
amount of gratuities, shall be estimated and de-
[ 350]
§ 8052(20)
WEIGHTS AND MEASURES
§ 8060
termined in accordance with rules prescribed by
the commission.
(o) "Week" means such period or periods of
seven consecutive calendar days ending at mid-
night as the commission may by regulations pre-
scribe.
(p) "Calendar quarter" means the period of
three consecutive calendar months ending on
March thirty-first, June thirtieth, September
thirtieth or December thirty-first, excluding, how-
ever, any calendar quarter or portion thereof
which occurs prior to January first, one thousand
nine hundred and thirty-seven, or the equivalent
thereof as the commission may by regulation pre-
scribe.
(q) "Weekly benefit amount." An individual's
"weekly benefit amount" means the amount of
benefits he would be entitled to receive for one
wTeek of total unemployment.
(r) "Benefit year," with respect to any individ-
ual, means the fifty-two consecutive week period
beginning with the first day of the first week with
respect to which benefits are first payable to him
and thereafter, the fifty-two consecutive week pe-
riod beginning with the first day of the first week
with respect to which 'benefits Are next payable to
him after the termination of his last preceding
benefit year.
(s) The term "base period" means the first
eight of the last nine completed calendar quarters
immediately preceding the first day of an indi-
vidual's benefit year: Provided, that with re-
spect to any benefit year which begins prior to
April first, one thousand nine hundred and thirty-
nine, "base period" shall mean those calendar
quarters beginning January first, one thousand
nine hundred and thirty-seven, and ending with
the last day of the next to the last completed cal-
endar quarter immediately preceding any week
with respect to which benefits are payable. (Ex.
Sess. 1936, c. 1, s. 19; 1937, c. 448, s. 5.)
§ 8052(20). Enforcement of unemployment com-
pensation law discontinued upon repeal or invali-
dation of federal acts. — It is the purpose of this
chapter to secure for employers and employees the
benefits of Title III and Title IX of the Federal
Social Security Act, approved August fourteenth,
one thousand nine hundred thirty-five, as to credit
on payment of federal taxes, of state contributions,
the receipt of federal grants for administrative
purposes, and all other provisions of the said
Federal Social Security Act; and it is intended as
a policy of the state that this chapter and its re-
quirements for contributions by employers shall
continue in force only so long as such employers
are required to pay the federal taxes imposed in
said Federal Social Security Act by a valid act of
congress. Therefore, if Title III and Title IX of
the said Federal Social Security Act shall be de-
clared invalid by the United States supreme court,
or if such law be repealed by congressional action
so that the federal tax cannot be further levied,
from and after the declaration of such invalidity
by the United States supreme court, or the repeal
of said law by congressional action, as the case
may be, no further levy or collection of contribu-
tions shall be made hereunder.
All federal grants and all contributions thereto-
fore collected, and all funds in the treasury by
[ 35
virtue of this chapter, shall, nevertheless, be dis-
bursed and expended, as far as may be possible,
under the terms of this chapter: Provided, how-
ever, that contributions already due from any em-
ployer shall be collected and paid into the said
fund, subject to such distribution; and provided
further, that the personnel of the state unemploy-
ment commission shall be reduced as rapidly as
possible.
The funds remaining available for use by the
North Carolina unemployment commission shall
be expended, as necessary, in making payment of
all such awards as have been made and are fully
approved at the date aforesaid, and the payment
of the necessary costs for the further administration
of this chapter, and the final settlement of all af-
fairs connected with same. After complete pay-
ment of all administrative costs and full payment
of all awards made as aforesaid, any and all
moneys remaining to the credit of any employer
shall be refunded to such employer, or his duly
authorized assignee: Provided, that the state em-
ployment service, created by chapter one hundred
six, Public Laws of one thousand nine hundred
thirty-five [§ 7312(a) et seq.], and transferred by
chapter one, Public Laws of one thousand nine
hundred thirty-six, Extra Session [§ 8052(12)],
and made a part of the unemployment compensa-
tion commission of North Carolina, shall in such
event return to and have the same status as it had
prior to enactment of chapter one, Public Laws
of one thousand nine hundred thirty-six, Extra
Session, and under authority of chapter one hun-
dred six, Public Laws of one thousand nine hun-
dred thirty-five, shall carry on the duties therein
prescribed; but, pending a final settlement of the
affairs of the unemployment compensation com-
mission of North Carolina, the said state employ-
ment service shall render such service in connec-
tion therewith as shall be demanded or required
under the provisions of this chapter or the provi-
sions of chapter one, Public Laws of one thousand
nine hundred thirty-six, Extra Session. (1937, c.
363.)
CHAPTER 133
WEIGHTS AND MEASURES
Art. 1. Establishment and Use of Standards
§ 8060. Standard weights and measures, excep-
tion; penalty. — The standard weight of the follow-
ing seeds and other articles named shall be as
stated in this section, viz:
Alfalfa shall be 60 lbs. per bu.; .apples, dried,
shall be 24 lbs. per bu.; apples seed shall be 40
lbs. per bu.; barley shall be 48 lbs. per bu.; beans,
castor, shall be 46 lbs. per bu.; beans, dry, shall
be 60 lbs. per bu.; beans, green in pod, shall be
30 lbs. per bu.; beans, soy, shall be 60 lbs. per
bu.; beef, net, shall be 200 lbs. per bbl.; beets
shall be 50 lbs. per bu.; blackberries shall be 48
lbs. per bu.; blackberries, dried, shall be 28 lbs.
per bu.; bran shall be 20 lbs. per bu.; broomcorn
shall be 44 lbs. per bu.; buckwheat shall be 50
lbs. per bu.; cabbage shall be 50 lbs. per bu.;
canary seed shall be 60 lbs. per bu.; carrots shall
be 50 lbs. per bu.; cherries, with stems, shall be
56 lbs. per bu.; cherries, without stems, shall be
64 lbs. per bu.; clover seed, red and white, shall
1]
§ 8081(h)
WORKMEN'S COMPENSATION ACT
§ 8081 (i)
be 601 lbs. per bu.; clover, burr, shall be 8 lbs. per
(bu.; clover, German, shall be 60 lbs. per bu.;
clover, Japan, Lespedeza, shall be, in hull 25 lbs.
per bu.; corn, shelled, shall be 56 lbs. per bu.; corn,
Kaffir, shall be 50 lbs. per bu.; corn, pop, shall be
70 lbs. per bu.; cotton seed shall be 30 lbs. per bu.;
cotton seed, Sea Island, shall be 44 lbs. per bu.;
cucumbers shall be 48 lbs. per bu.; fish shall be,
half-barrel 100 lbs. per y2 bbl.; flax seed shall be
56 lbs. per bu.; grapes, with stems, shall be 4S
lbs. per bu.; grapes, without stems, shall be 60
lbs. per bu.; gooseberries shall be 48 lbs. per bu.;
grass seed, Bermuda, shall be 14 lbs. per bu.; grass
seed, blue, shall be 14 lbs. per bu.; grass seed,
Hungarian, shall be 48 lbs. per bu.; grass seed,
Johnson, shall be 25 lbs. per bu.; grass seed, Italian
rye, shall be 20 lbs. per bu.; grass seed orchard,
shall be 14 lbs. per bu.; grass seed, tall meadow
and tall fescue 24 lbs. per bu.; grass seed, all
meadow and fescue except tall 14 lbs. per bu.;
grass seed, perennial rye, shall be 14 lbs. per bu.;
grass seed, timothy, shall be 45 lbs. per bu.; grass
seed, velvet, shall be 7 lbs. per bu.; grass, red top,
shall be 14 lbs. per bu.; hemp seed shall be 44 lbs.
per bu.; hominy shall be 62 lbs. per bu.; horse-
radish shall be 50 lbs. per bu.; liquids shall be 42
gals, per bbl.; meal, corn, whether bolted or un-
bolted 48 lbs. per bu.; melon, cantaloupe, shall be
50 lbs. per bu.; millet shall be 50 lbs. per bu.;
mustard shall be 58 lbs. per bu.; nuts, chestnuts,
shall be 50 lbs. per bu.; nuts, hickory, without
hulls, shall be 50 lbs. per bu.; nuts, walnuts with-
out hulls, shall be 50 lbs. per bu.; oats, seed, shall
be 32 lbs. per bu.; onions, button sets, shall be 32
lbs.; onions, top buttons, shall be 28 lbs. per bu.;
onions, matured, shall be 57 lbs. per bu.; osage
orange seed shall be 33 lbs. per bu.; peaches, ma-
tured, shall be 50 lbs. per bu.; peaches, dried, shall
be 25 lbs. per bu.; peanuts shall be 22 lbs. per bu.;
peach seed shall be 50 lbs. per bu.; peanuts,
Spanish, shall be 30 lbs. per bu.; parsnips, shall
be 50 lbs. per bu.; pears, matured, shall be 56 lbs.
per bu.; pears, dried, shall be 26 lbs. per bu.; peas,
dry, shall be 60 lbs. per bu.; peas, green, shall be,
in hull 30 lbs. per bu.; pieplant shall be 50 lbs. per
bu.; plums shall be 64 lbs. per bu.; pork, net,
shall be 200 lbs. per bbl.; potatoes, Irish, shall be
56 lbs. per bu.; potatoes, sweet, green, shall be
56 lbs. per bu.; and the dry weight 47 lbs. per bu.;
quinces, matured, shall be 48 lbs. per bu.; rasp-
berries shall be 48 lbs. per bu.; rice, rough, shall
be 44 lbs. per bu.; rye seed shall be 56 lbs. per bu.;
sage shall be 4 lbs. per bu.; salads, mustard,
spinach, turnips, kale 10 lbs. per bu.; salt shall be
50 lbs. per bu.; sorghum seed shall be 50 lbs. per
bu.; sorghum molasses shall be 12 lbs. per gal.;
strawberries shall be 48 lbs. per bu.; sunflower
seed shall be 24 lbs. per bu.; teosinte shall be 59
lbs. per bu.; tomatoes shall be 56 lbs. per bu.;
turnips shall be 50 lbs. per bu.; wheat shall be 60
lbs. per bu.; cement shall be 80 lbs. per bu.; char-
coal shall be 22 lbs. per bu.; coal, stone, shall be
80 lbs. per bu.; coke shall be 40 lbs. per bu.; hair,
plastering, shall be 8 lbs. per bu.; land plaster
shall be 100 lbs. per bu.; lime, unslaked, shall be
80 lbs. per bu.; lime, slaked, shall be 40 lbs. per bu.
It shall be unlawful to purchase or sell, or barter
or exchange, any article named in this section on
any other basis than as stated herein: Provided,
however, that any and/or all such articles may be
sold by weight, avoirdupois standard.
If any person shall take any greater weight
than is specified for any of the items named here-
in, he shall forfeit and pay the sum of twenty
dollars for each separate case to any person who
may sue for same. (1915, c. 230, s. 1; 1909, c.
555, s. 1; 1917, c. 34; Ex. Sess. 1921, c. 87; 1931, c.
76; 1937, c. 354.)
Editor's Note. — The 1937 amendment struck out the clauses
relating to the weight of corn in ear, and substituted "gal-
lon" for "bushel" in the clause relating to the weight of
sorghum molasses. It also substituted the next to the last
paragraph for the one formerly appearing in this section.
CHAPTER 133A
WORKMEN'S COMPENSATION ACT
Art. 1. General Provisions
§ 8081(h). Official title.
In General. — It was the purpose of the General Assembly
in providing for compensation for an employee, that the
North Carolina Industrial Commission, created by the act
for that purpose, shall administer its provisions to the
end that both employee and employer shall receive the
benefits and enjoy the protection of the act. The act con-
templates mutual concessions by employee and employer;
for that reason, its validity has been upheld, and its policy
approved. Winslow v. Carolina Conference Ass'n, 211 N. C.
571, 578, 191 S. E. 403.
Construction. — -
In accord with original. See Roberts v. City Ice, etc.,
Co., 210 N. C. 17, 185 S. E. 438.
The Industrial Commission has exclusive jurisdiction of
the rights and remedies herein afforded. Hedgepeth v.
Lumbermen's Mut. Cas. Co., 209 N. C. 45, 47, 182 S. E. 704.
Proceeding Should Not Be in Name of Deceased! Em-
ployee.— A proceeding under the Workmen's Compensation
Act to determine liability of defendants to the next of kin
of a deceased employee should not be brought in the name
of the deceased employee. Slade v. Willis Hosiery Mills,
209 N. C. 823, 184 S. E. 844.
§< 808 l(i). Definitions,
A compensable death is one which results from an injury
by accident arising cut of and in the course of the em-
ployment. There must be an accident followed by an in-
jury by such accident which results in harm to the em-
ployee before it is compensable under our statute. Slade
v. Willis Hosiery Mills, 209 N. C. 823, 825, 184 S. E. 844.
Where there is any competent evidence in support of the
finding of the Industrial Commission that the accident in
question arose out of and in the course of the employment,
the finding is conclusive on the courts upon appeal. Eath-
am v. Southern Fish, etc., Co., 208 N. C. 505, 181 S. E. 640.
"Accident" as has been defined "as an unlooked for and
untoward event which is not expected or designed by the
person who suffers the injury." Slade v. Willis Hosiery
Mills, 209 N. C. 823, 825, 184 S. E. 844, citing Conrad v.
Cook-Eewis Foundry Co., 198 N. C. 723, 153 S. E. 266; Mc-
Neely v. Carolina Asbestos Co., 206 N. C. 568, 174 S. E. 509.
Death from injury by accident implies a result produced
by a fortuitous cause. Slade v. Willis Hosiery Mills, 209
N. C. 823, 825, 184 S. E. 844.
Employee Contracting Pneumonia. — Where an employee
got wet in washing certain machines, although furnished
with special clothes, and while removing ashes, was in the
sunshine and open air, and the sudden change in tempera-
ture caused him to contract pneumonia, from which he died,
the evidence does not disclose any accidental injury. Slade
v. Willis Hosiery Mills, 209 N. C. 823, 184 S. E. 844.
Injury from Occupational Disease. — Where claimant
worked in an asbestos plant for six or seven years, and a
dust removing system was not installed until about a year
before claimant's discharge when a medical examination dis-
closed that he was suffering from asbestosis, the evidence
shows the injury was the result of an occupational disease
not compensable under the Workmen's Compensation Act
prior to its amendment by ch. 123, Public Laws of 1935.
Swink v. Carolina Asbestos Co., 210 N. C. 303, 186 S. E. 258.
Executive Performing Manual Labor. — Where evidence
showed claimant went to another city toi inspect a job
which defendant employer was completing, and did manual
[ 352 ]
§ 8081 (k)
WORKMEN'S COMPENSATION ACT
§ 8081(ff)
labor on the job in installing radiators, and was injured in
an automobile accident occurring while he was returning
home from the job, the claimant, at the time of his acci-
dental injury, had not been off on a mission of a purely
executive nature, but at the time was doing the work of
an ordinary laborer or employee. Rowe v. Rowe-Coward
Co., 208 N. C. 484, 181 S. E. 254.
Employee Injured in Alighting from Moving Truck.—
Where employer hired two employees to ride on truck to
help the driver unload and, on the last trip, the driver
consented to let the employees off at the place on his route
nearest their homes, and one of the employees attempted
to alight before the truck had completely stopped, contrary
to express orders, and fell to his mortal injury, the evi-
dence was sufficient to sustain the finding that the ac-
cident arose out of and in the course of the employment.
Latham v. Southern Fish, etc., Co., 208 N. C. 505, 181 S. E.
640.
Injury to Deputized Policeman Aiding; in Arrest. — Evi-
dence that claimant was injured while attempting to aid
a policeman in serving a warrant for breach of tbe peace,
and that claimant had been duly deputized by the police-
man to aid in making the arrest, is held sufficient to sup-
port the finding of the Industrial Commission that at the
time of injury claimant was an employee of defendant town
under a valid appointment. Tomlinson v. Norwood, 208
N. C. 716, 182 S. E. 659.
§ 8081 (k). Presumption that all employers and
employees have come under provisions of chapter.
Notwithstanding tbe presumption contained in this sec-
tion, there are provisions in the act whereby employers, as
well as employees, may except themselves from the opera-
tion thereof (see §§ 8081(1), 8081 (v), 8081 (x), and the pre-
sumption of acceptance may be rebutted by the proof of
nonacceptan.ee. Calahan v. Roberts, 208 N. C. 768, 182 S.
E- 657.
Plaintiff and his employer were bound by the provisions
of the Workmen's Compensation Act. Plaintiff's injury oc-
curred while he was allowed by his employer to use certain
machinery for his own personal ends. Compensation was
denied since the accident did not arise out of and in the
course of the employment. Thereafter plaintiff sued alleg-
ing negligence on the part of the employer. But it was held
that conceding the evidence established negligence of de-
fendant employer, the Compensation Act barred all other
rights and remedies of defendant employee except those
provided in the act. Francis v. Carolina Wood Turning Co.,
208 N. C. 517, 181 S. E. 628.
§ 8081(1). Notice of non-acceptance and waiver
of exemption.
Cited in Calahan v. Roberts, 208 N. C. 768, 182 S. E. 657.
§ 8081 (r). Other rights and remedies excluded;
right to sue tort feasors; minor illegally employed;
subrogation; amount of compensation as evidence;
compromise.
The meaning of this section is both clear and logical,
namely, that if after the expiration of six months from the
date of the injury or death, the employer has not com-
menced an action, the employee, or his personal represen-
tative, shall thereafter have the right to bring an action
in his own name, and that any amount recovered shall be
paid in the same manner as if the employer had brought
the action. Ikerd v. North Carolina R. Co., 209 N. C.
270, 272, 183 S. E. A02.
Words "and the employer" in First Paragraph Are Sur-
plusage.— The words "and the employer,'* appearing near
the end of the first paragraph, have no proper grammatical
place in the sentence, and render the whole sentence am-
biguous and doubtful. So we are impelled to hold, in con-
struing the sentence, that these words are surplusage, and
as such must be disregarded. Ikerd v. North Carolina R.
Co., 209 N. C. 270, 272, 183 S. E. 402.
Joinder of Insurance Carrier Properly Denied. — More than
six months after the injury complained of, the original de-
fendants filed a petition and moved that the employer's
insurance carrier also be made a party defendant, the mo-
tion was denied, and defendants appealed. The motion for
joinder of the insurance carrier was properly denied under
the provisions of this section, the statute giving the right
to an employee to maintain an action against a third per-
son tort-feasor if the employer fails to institute such ac-
tion within six months from date of the injury. Peterson
v. McManus, 208 N. C. 802, 182 S. E. 483.
Intent of Section, — After filing proceedings for compensa-
tion claimant filed a counterclaim in a suit at law insti-
tuted against him by a third person, which suit involved
the same accident resulting in the injuries for which he
sought compensation. Claimant was not barred by filing
the counterclaim from thereafter prosecuting his claim be-
fore the Industrial Commission,) since he recovered no
judgment, and the intent of this section, being that an in-
jured employee should be compensated either by an award
or by the "procurement of a judgment in an action at law,"
the rights of the parties being determined by the act prior
to its amendment. Rowe v. Rowe-Coward Co., 208 N. C.
484, 181 S. E. 254.
Employer Is Not Relieved of Liability by Insurer's In-
solvency after Recovery against Third Person. — An admin-
istratrix was only a nominal party to a suit against a third
person tort-feasor and had no control over the recovery
and could not safeguard it for the purpose of paying the
award, and the employer, who selected the insurance car-
rier for his own protection, is not relieved of his primary
obligation to the dependents of the employee by reason of
the insurer's recovery from the third person and default in
payment because of insolvency, nor does the fact that the
employer had no notice of the suit, by the insurer against
the third person alter this result. Roberts v. City Ice, etc.,
Co., 210 N. C. 17, 185 S. E. 438.
Quoted in Winslow v. Carolina Conference Ass'n, 211 N.
C. 571, 191 S. E. 403.
Cited in Francis v. Carolina Wood Turning Co., 208 N.
C. 517, 181 S. E. 628.
§ 808 l(v). Employers not bound by article may
not use certain defenses in damage suit.
Cited in Calahan v. Roberts, 208 N. C. 768, 182 S E. 657.
§ 8081 (x). Defenses denied to non-adhering
employer against non-adhering employee.
Cited in Calahan v. Roberts, 208 N. C. 768, 182 S. E. 657.
§ 8081 (cc). Claims unassignable and exempt
from taxes and debts; agreement of employee to
contribute to premium or waive right to compen-
sation; unlawful deduction by employer.
See the note in 15 N. C. Taw Rev., No. 3, p. 286.
§! 8081 (dd). Written notice of accident to em-
ployer.
Where the employer has filed a report with the Com-
mission within the prescribed time upon verbal information
elicited from the representative of the employee by its claim
agent, the representative being unable to read or write,
and, the employer admitting liability, the report has been
filed with the Industrial Commission as a claim within
one year from date of the accident and contains all facts
necessary 1o make an award. Hanks v. Southern Public
Utilities Co., 210 N. C. 312, 186 S. E. 252.
Applied in Tilly v. Belk Bros., 210 N. C. 735, 188 S. E- 319.
§ 8081 (ee). What notice is to contain; defects
no bar; notice personally or by registered letter.
Applied in Tilly v. Belk Bros., 210 N. C. 735, 188 S. E-
319.
§ 8081 (ff). Right to compensation barred after
one year.
The provisions of this section constitute a condition
precedent to the right to compensation, and not a statute
of limitation. For this reason, where a claim for compen-
sation under the provisions of the North Carolina Work-
men's Act has not been filed with the Industrial Commis-
sion within one year after the date of the accident which
resulted in the injury for which compensation is claimed,
or where the Industrial Commission has not acquired juris-
diction of such claim within one year after the date of such
accident, the right to compensation is barred. Winslow v.
Carolina Conference Ass'n, 211 N. C. 571, 582, 191 S. E- 403.
Report Filed on Verbal Information Is Proper.— Where an
employer files a report with the Commission within the pre-
scribed time upon verbal information given by the repre-
sentative of the employee, the representative not being able
to read or write, and the employer admits liability, the re-
port has been properly filed with the Industrial Commis-
sion as a claim and it acquires jurisdiction. Hanks v.
Southern Public Utilities Co., 210 N. C. 312, 186 S. E. 252.
Prosecuting Common Law Action and Failing to File Ap-
plication for Hearing Is Not Abandonment of Filed Claim.
—The prosecution of a suit at common law and the failure
N. C. Supp.— 23
[ 353
§ 8081 (gg)
WORKMEN'S COMPENSATION ACT
§ 8081 (www)
to file application for a hearing- when requested did not
amount to an abandonment of the claim for compensation
filed by the employer, and no final award having been
made at the time of the filing of formal petition for an
award, the matter was pending at that time before the
Commission, and it was error to deny compensation on the
ground that claimant was barred by failure to file claim
within one year after the death of the deceased employee.
Hanks v. Southern Public Utilities Co., 210 N. C. 312, 186
S. F. 252, wherein the court inadvertently cited § 8081-
(bb).
Claim Not Filed within Time Prescribed. — Where an em-
ployee did not file a claim until more than twelve months
after injury, and the employer did not file a report of the
accident because it did not have knowledge thereof, al-
though it delivered claimant's wages to him after the dis-
ability resulting from the injury, but thought the disabil-
ity was due to a prior injury, had no knowledge of the
subsequent injury, and made no representations that the
wages delivered to the claimant were in lieu of compensa-
tion, the evidence supports the findings that the claim was
not filed within the time prescribed by this section. Lilly
v. Belk Bros., 210 N. C. 735, 188 S'. F- 319.
§ 8081 (gg). Medical treatment and supplies.
Insurer's Obligation to Furnish Medical Attention. — An
employee brought action against the insurance carrier and
its agent, alleging that after his injury the agent, on be-
half of insurer, induced him to dispense with the services of
his physician and consult physicians selected by insurer, and
that insurer promised to provide hospitalization and surgi-
cal service recommended by insurer's physicians, but failed
to do so to plaintiff's permanent injury. It was held that
insurer's obligation to furnish medical attention necessary'
to plaintiff's complete recovery was founded on this section,
and the Industrial Commission has exclusive jurisdiction of
plaintiff's claim. Hedgepeth v. Lumbermen's Mut. Cas.
Co., 209 N. C. 45, 182 S. F- 704.
§ 8081(11). Partial incapacity; prorating where
total disability results in partial.
The employee sustained injuries resulting in disabiltiy of
a general nature such as would entitle him to compensa-
tion under this section. In addition to such injuries, he had
also sustained injuries of a specific nature such as to enti-
tle him to compensation under section 8081 (mm). He is
entitled to compensation for the specific injuries under sec-
tion 8081 (mm), and then, if still disabled as a result of the
other injuries, compensation will be paid under this section.
Morgan v. Norwood, 211 N. C. 600, 601, 191 S. E- 345, cit-
ing Baughn v. Richmond Forging Co., Claim No. 70-597
which latter case gives a construction of the corresponding
sections of the Virginia law by the Virginia Industrial Com-
mission.
§ 8081 (mm). Other rates of compensation.
See the note to the preceding section.
§ 8081 (ggg). North Carolina industrial com-
mission created; members appointed by governor;
terms of office; chairman.
The Industrial Commission is primarily an administrative
agency of the state, charged with the duty of administer-
ing the provisions of the North Carolina Workmen's Com-
pensation Act. Hanks v. Southern Public Utilities Co.,
210 N. C. 312, 319, 186 S. E- 252, citing In re Hayes, 200 N.
C. 133, 156 S. F. 791.
But Is Special Tribunal When Considering Claims. — When
a claim for compensation has been filed and the employer
and employee have failed to reach an agreement, the stat-
ute authorizes the Commission to hear and determine all
matters in dispute. Thereupon, the Commission is consti-
tuted a special or limited tribunal, and is invested with
certain judicial functions, and possesses the powers and in-
cidents of a court, within the provisions of the act, and nec-
essary to determine the rights and
employers.
and
210 N. C. 312,
the
Hanks
319, 186 S.
liabilities
t. Southern Public
F. 252.
of employees
Utilities Co.,
§ 8081(jjj). Rules and regulations; subpoena of
witnesses; examination of books and records;
depositions; costs.
Under this section the North Carolina Industrial Commis-
sion has the power not only to make rules governing its
administration of the act, but also to construe and apply
such rules. Its construction and application of its rules,
[ 354
duly made and promulgated, in proceedings pending before
the said Commission, ordinarily are final and conclusive
and not subject to review by the courts of this state, on
an appeal from an award made by said Industrial Com-
mission. Winslow v. Carolina Conference Ass'n, 211 N. C.
571, 579, 191 S. F- 403.
§ 8081(mmm). In event of disagreement, com-
mission is to make award after hearing.
Cited in Hanks v. Southern Public Utilities Co., 210 N.
C. 312, 186 S. F. 252.
§ 8081 (ppp). Award conclusive as to facts; or
certified questions of law.
Evidence Not Considered on Appeal.—
On appeal from the North Carolina Industrial Commis-
sion, the Superior Court has no power to review the find-
ings of fact by the Commission. It can consider only errors
of law appearing in the record, as certified by the Indus-
trial Commission. Winslow v. Carolina Conference Ass'n,
211 N. C. 571, 191 S. F. 403.
Findings Supported by Competent Evidence Are Con-
clusive on Appeal. — Where each of the essential facts found
by the Industrial Commission is supported by competent
evidence, the findings are conclusive on appeal, even though
some incompetent evidence was also admitted upon the
hearing. Carlton v. Bernhardt- Seagle Co., 210 N. C. 655,
188 S. F- 77. See also, Tomlinson v. Norwood, 208 N. C.
716, 182 S. F- 659; Swink v. Carolina Asbestos Co., 210 N.
C. 303, 186 S. F- 258.
The Statutes Regulating Appeals from a Justice of the
Peace Are Applicable. — ■
But see Winslow v. Carolina Conference Ass'n, 211 N. C.
571, 191 S. F. 403, wherein it is said that statutory provisions
with respect to appeals from judgments of justices of the
peace to the Superior Court, where the trial must be de novo,
are not controlling with respect to appeals from awards of
the Industrial Commission to the Superior" Court, where
only errors of law appearing in the record may be consid-
ered.
Time within Which Transcript of Record Must Be Filed.
— In the absence of any requirement of the statute as to the
time within which a transcript of the record in a proceed-
ing before the Industrial Commission must be docketed in
the Superior Court, when there has been an appeal from
the award of the Commission, such docketing at any time
before the convening of the next ensuing regular term of
the Superior Court, or before said time has expired, is suf-
ficient to perfect the appeal. Winslow v. Carolina Confer-
ence Ass'n, 211 N. C. 571, 581, 191 S. F- 403.
Applied in Latham v. Southern Fish, etc., Co., 208 N. C.
505, 181 S. E. 640.
§ 8081 (rrr).
insurers.
Discretion of Court.—
Delete the title of the case, "State
citation at the end of the paragraph
Expenses of appeals brought by
and substitute h
Equalization, 205
i lieu
N. C.
thereof '
730, 735,
. Davidson," and the
under this catchline
Purdue v. State Board of
172 S. F. 396."
§ 8081 (vvv). Employer's record and report of
accidents; records of commission not open to pub-
lic; supplementary report upon termination of dis-
ability; penalty for refusal to make report; when
insurance carrier liable.
The report signed by the manager of an incorporated
employer and fifed with the Industrial Commission as re-
quired by this section, is competent upon the hearing and
statements contained therein not within the personal knowl-
edge of the manager are competent as an admission against
interest. Carlton v. Bernhardt- Seagle Co., 210 N. C. 655,
188 S. F. 77, wherein the instant section was inadvertently
referred to as § 8181(vvv).
Where the employer has filed a report with the Com-
mission within the prescribed time upon verbal information
elicited from the representative of the employee by its claim
agent, the representative being unable to read or write, and,
the employer admitting liability, the report has been filed
with the Industrial Commission as a claim within one year
from date of the accident and contains all facts necessary
to make an award. Hanks v. Southern Public Utilities Co.,
210 N. C. 312, 186 S. F- 252.
§i 8081 (www). Adhering employers required to
§ 8081 (xxx)
WORKMEN'S COMPENSATION ACT
§ 8081 (xxx)
carry group insurance; prove financial ability to
pay for benefits.
An award was entered in favor of the dependents of a
deceased employee for payment of compensation in weekly
installments for the death of the employee. After the in-
surance carrier had paid several installments, it defaulted
in the payment of the balance because of insolvency. Un-
der the provisions of the Compensation Act the employer
is primarily liable to the employee, which obligation is un-
impaired by its contract with an insurer for insurance pro-
tection, or by the insurer's subrogation to the rights of the
employer upon paying or assuming the payment of an
award, and the employer is not relieved of its liability to
the dependents of the deceased employee for the balance of
the weekly payments because of the insolvency of the in-
surer. Roberts v. City Ice, etc., Co., 210 N. C. 17, 185 S.
E. 43$.
The employer, held liable for the balance of an award
after the insolvency of the insurer, is not entitled to a
credit for the amount paid the dependents out of the
judgment against the third person tort-feasor or for the
amount paid plaintiff's attorneys in that action, the amount
paid the dependents out of the judgment being an amount
in addition to the award, and the award not being subject
to reduction by such amount. Id.
§ 8081 (xxx). Adhering employers required to
give proof within 30 days that they have complied
with preceding section; fine for not keeping lia-
bility insured; review; liability for compensation.
Quoted in Roberts v. City Ice, etc., Co., 210 N. C. 17, 185
S. E. 438.
[ 355
APPENDICES
I. Constitution of the State of North Carolina
VII. Rules of Court
APPENDIX I
CONSTITUTION OF THE STATE OF
NORTH CAROLINA
ARTICLE I
Declaration of Rights
§ 2. Political power and government.
Repeal of Laws. — It is axiomatic that since all political
power is derived from the people and all government orig-
inates from them, the sovereign power of the people, ex-
pressed through their chosen representatives in the Gen-
eral Assembly, is supreme, and a law by them enacted may
not be set aside by the courts unless it contravenes some
prohibition or mandate of the Constitution by which the
people of the state have elected to be limited and restrained,
or unless it violates some provision of the granted powers
of Federal Government contained in the Constitution of the
United States. State v. Warren, 211 N. C. 75, 80, 189 S.
E- 108.
§ 7. Exclusive emoluments, etc.
This section is a fundamental democratic principle of
"equal rights and opportunities to all, special privileges to
none." Newman v. Watkins, 208 N. C. 675, 679, 182 S. E-
453, dissenting opinion of Justice Clarkson.
Applied, in dissenting opinion, in Blevins v. Northwest
Carolina Utilities, 209 N. C. 683, 184 $. E- 517; Richmond
Mtg., etc., Corp. v. Wachovia Bank, etc., Co., 210 N. C.
29, 185 S. E. 482, holding § 2593(d) constitutional and valid;
Allen v. Carr, 210 N. C. 513, 187 S. E- 809, holding valid §
6649(17), requiring a second examination of former licensed
dentists returning to the state; Cowan v. Security Life, etc.,
Co., 211 N. C. 18, 188 S. E. 812, holding § 6291 does not
authorize insurance companies to charge more than six per
cent interest; State v. Warren, 211 N. C. 75, 189 S. E- 108,
holding invalid ch. 241, Public-Local Laws 1927, requiring
real estate brokers and salesmen to be licensed by a spe-
cial commission in designated counties.
Quoted in State v. Atlantic Tee, etc., Co., 210 N. C. 742,
188 S. E- 412.
Cited in Bennett v. Southern Ry. Co., 211 N. C. 474, 191
S. E. 240.
§ 8. The legislative, executive and judicial pow-
ers distinct.
Power of County to Apply Formula for Ascertaining Tax-
able Property. — Plaintiff county ascertained the amount of
personal property of defendant nonresident corporation hav-
ing a "business situs" in this state, and liable for taxa-
tion as solvent credits by the county by ascertaining the
total assets of the defendant and the percentage of such as-
sets found in the county, and allowing the same per cent
of its total liabilities to be deducted therefrom. Defendant
complained that defendant county had made its own rule in
ascertaining the solvent credits in the county subject to
taxation in violation of this section, but since defendant
failed to list its solvent credits for taxation as required by
law, it was not prejudiced by the assessment of its per-
sonal property for taxation as determined by the county.
Mecklenburg County v. Sterchi Bros. Stores, 210 N. C. 79,
185 S. F. 454.
Cited in Castevens v. Stanly County, 211 N. C. 642, 191
S. F- 739.
§ 10. Elections free.
Quoted in Swaringen
746.
Poplin, 211 N. C. 700, 191 S. E-
§ 11. In criminal prosecutions.
For article discussing the limits to confrontation, see 15
N. C. Law Rev., No. .3, p. 229.
Private Counsel May Assist Solicitor in Trial of Case.—
The trial court has discretionary power to allow private
[357]
counsel to assist the solicitor in the trial of a case, it be-
ing the duty of the court to permit only such assistance as
fairness and justice may require, and such power does not
impinge the provisions of this section of the Constitution.
State v. Carden, 209 N. C. 404, 183 S. F. 898.
The right of a defendant to confront his accusers includes
the right to cross-examine them on any subject touched on
in their examination-in-chief, and a witness testifying to
facts incriminating defendant on his examination-in-chief
may not deprive defendant of his right to cross-examine
him on the ground that answers to questions asked on
cross-examination might tend to incriminate the witness.
State v. Perry, 210 N. C. 796, 188 S. F- 639.
Hence Accomplice Can Not Refuse to Answer on Cross-
Examination after Incriminating Defendant. — An accomplice
may not testify on direct examination to facts tending to
incriminate defendant and at the same time refuse to answer
questions on cross-examination relating to matters em-
braced in his examination-in-chief, and where he refuses
to answer relevant questions on cross-examination on the
ground that his answers might tend to incriminate him,
it is error for the court to refuse defendant's motion that
his testimony-in-chief be stricken from the record, the re-
fusal to answer the questions on cross-examination render-
ing the testimony-in-chief incompetent. State v. Perry, 210
N. C. 796, 188 S. F. 639.
§ 12. Answers to criminal charges.
Necessity for Order for Grand Jury During Special
Term.—
In accord with original. See State v. Boykin, 211 N. C.
407, 191 S. F. IS.
Effect of Invalid Indictment. — When the indictment charg-
ing defendant with the commission of crime is invalid, de-
fendant's motion to dismiss the action for want of jurisdic-
tion should be allowed. State v. Beasley, 208 N. C. 318, 180
S. F. 59S.
Applied in State v. Watson, 209 N. C. 229, 183 S. E- 286.
§ 13. Right of jury.
Jury Trial Can Not Be Waived after Plea of Not Guilty.
— The constitutional right to trial by jury in the Supe-
rior Court can not be waived by accused after a plea of
not guilty. Hence § 4636(a) is unconstitutional in that it
provides for trial by the court as upon a plea of "not
guilty" when a defendant enters a "conditional plea."
State v. Camby, 209 N. C. 50, 182 S. E- 715.
A defendant in a criminal prosecution for a felony or a
misdemeanor may not waive his constitutional right to
trial by jury in the Superior Court after entering a plea
of "Not guilty", without changing his plea, nor may the
General Assembly permit him to do so by statute, and
where the court, after a plea of "Not guilty," finds the
defendant guilty without a jury trial, the judgment will be
stricken out and the cause remanded. State v. Hill, 209
N. C. 53, 182 S. F- 716.
Separate Provisions for Petty Misdemeanors. —
In accord with original. See State v. Boykin, 211 N. C.
407, 191 S. F. 18.
Trial of Petty Misdemeanors. — It is permissible under this
section for the General Assembly to provide for the trial
of petty misdemeanors in inferior courts with the right of
appeal to the Superior Court. State v. Camby, 209 N. C.
50, 52, 182 S. F- 715, citing State v. Pasley, 180 N. C. 695,
104 S. E. 533; State v. Tate, 169 N. C. 373, 85 S. E- 383;
State v. Hyman, 164 N. C. 411, 79 S. E. 284; State v.
Brittain, 143 N. C. 668, 57 S. E. 352; State v. Lytle, 138 N.
C. 738, 51 S. E- 66.
Applied in State v. Watson, 209 N. C. 229, 183 S. E- 286.
§ 15. General warrants.
For a discussion of the statutes enacted pursuant to this
provision, see 15 N. C. Law Rev., No. 2, p. 101. As to
limitations on investigating officers, see 15 N. C. Law Rev.,
No. 3, p. 229.
This provision is a limitation on state and local officers.
15 N. C. Law Rev., No. 3, p. 232.
Art I, § 16
CONSTITUTION OF NORTH CAROLINA
Art. IV, § 1
§ 16. Imprisonment for debt.
No Imprisonment Except Where There Is Fraud. — "This
section clearly means that there shall at least be no im-
prisonment to enforce the payment of a debt under final
process, unless it has been adjudged, upon an allega-
tion duly made in the complaint and a corresponding issue
found by a jury, that there has been fraud. . . ." East
Coast Fertilizer Co. v. Hardee, 211 N. C. 653, 657, 191 S.
E. 725, quoting from Ledford v. Emerson, 143 N. C. 527, 55
S. E. 969, 10 L. R. A. (N. S.) 362.
§ 17. No person taken, etc., but by law of land.
Statute Providing Service of Summons by Publication on
Taxpayers Is Valid.— The statute (§ 2492(55) et seq.), con-
ferring jurisdiction upon the Superior Courts of the counties
over citizens and owners of taxable property within the
county without requiring each such owner or citizen to be
named as a party in the complaint or summons and pro-
viding for service of summons by publication, is not a vio-
lation of this section. Castevens v. Stanly County, 211 N.
642, 191 S. E. 739.
Section 2593(d) is constitutional and valid, since it recog-
nizes the obligation of the debtor to pay his debt and the
right of the creditor to enforce payment by action in ac-
cordance with the terms of the agreement, but provides
merely for judicial supervision of sales under power to the
end that the price bid at the sale shall not be conclusive
as to the value of the property, and that the creditor may
not recover any deficiency after applying the purchase price
to the notes without first accounting for the fair value of
the property in accordance with weir settled principles of
equity. Richmond Mtg., etc., Corp. v. Wachovia Bank,
etc., Co., 210 N. C. 29, 185 S. E. 482.
The 1933 amendment to § 867 is constitutional, since it does
not impair the obligations of a contract under this section,
the effect of the statute being merely to alter the method of
procedure in which there can be no vested right. Sover-
eign Camp, W. O. W. v. Board of Com'rs, 208 N. C. 433,
181 S. E. 339.
Defendants Are Not Twice Put in Jeopardy by Second
Arraignment. — Where each defendant has been separately
arraigned and has pleaded to the bill of indictment, follow-
ing which the cases are continued to the next term of
court, defendants are not twice put in jeopardy by a sec-
ond arraignment when the cases are called for trial the fol-
lowing term. State v. Watson, 209 N. C. 229, 183 S. E- 286.
Assessments without Notice, etc., Are Void. — Street as-
sessments made under charter provisions failing to pro-
vide notice and an opportunity to be heard to those assessed
are void as violating due process of law, and may not be
validated by curative acts of the legislature. Lexington v.
Lopp, 210 N. C. 196, 185 S. E- 766.
Applied in Thomson v. Harnett County, 209 N. C. 662, 184
S. E. 490, holding ch. 342. Public-Local Laws 1935 valid.
Cited in Allen v. Carr, 210 N. C. 513, 187 S'. E- 809.
§ 21. Habeas corpus.
Stated in McEachern v. McEachern, 210 N. C. 98, 185 S.
E. 684.
§ 27. Education.
Applied in Mecklenburg County
Co., 210 N. C. 171, 185 S. E- 654.
Piedmont Fire Ins.
§ 31. Perpetuities, etc.
This section is a fundamental democratic principle of
"equal rights and opportunities to all, special privileges to
none." Newman v. Watkins, 208 N. C. 675, 679, 182 S. E-
453, dissenting opinion of Justice Clarkson.
Statute Requiring Examination of Former Dentists Re-
turning to State Is Valid.— Section 6649(17) providing that
a licensed dentist who retires or removes from the state
must pass an examination upon returning to the state does
not confer exclusive emoluments and privileges on continu-
ously practicing dentists contrary to the provisions of this
and the preceding section. Allen v. Carr, 210 N. C. 513, 187
S. E. S9.
Applied in State v. Warren, 211 N. C. 75, 189 S. E- 108,
holding ch. 241, Public-Local Laws 1927 unconstitutional;
Bennett v. Southern Ry. Co., 211 N. C. 474, 191 S. E- 240.
Quoted in State v. Atlantic Ice, etc.. Co., 210 N. C. 742,
188 S. E. 412.
Cited in Cowan v. Security Life, etc., Co., 211 N. C. IS,
188 S. E- 812.
§ 32. Ex post facto laws.
Cited in State v. Hester, 209 N. C. 99, 182 S. E- 738.
§ 35. Courts shall be open.
Section 2593(d) is constitutional and valid, since it recog-
nizes the obligation of the debtor to pay his debt and the
right of the creditor to enforce payment by action in ac-
cordance with the terms of the agreement, but provides
merely for judicial supervision of sales under power to the
end that the price bid at the sale shall not be conclusive
as to the value of the property, and that the creditor may
not recover any deficiency after applying the purchase
price to the notes without first accounting for the fair value
of the property in accordance with well settled principles of
equity. Richmond Mtg., etc., Corp. v. Wachovia Bank,
etc., Co., 210 N. C. 29, 185 S. E- 482.
Quoted, in dissenting opinion, in Lucas v. Midgette, 208
N. C. 699, 182 S. E- 328.
ARTICLE II
Legislative Department
§ 1. Two branches.
Cited in State v. Brockwell, 209 N. C. 209, 183 S. E. 378.
§ 14. Revenue.
II. GENERAL CONSIDERATIONS.
Cited in Newman v. Watkins, 208 N. C. 675, 182 S. E. 453.
IV. THE JOURNAL— SPEAKERS' CERTIFICATES.
Journals Conclusive. —
It appears from the Journal of each house of the General
Assembly that the last paragraph of § 1335 was enacted in
accordance with the requirements of this section. Martin
v. Board of Com'rs, 208 N. C. 354, 365, 180 S. E- 777.
§ 29. Limitations upon power of General As-
sembly to enact private or special legislation.
Establishment of Recorders' Courts. —
Ch. 286, Public- Local Laws of 1925, providing for the es-
tablishment of township recorder's courts in one specified
county is unconstitutional and void as being a local act re-
lating to the establishment of courts inferior to the Superior
Court, prohibited by this section. State v. Williams, 209
N. C. 57, 182 S. E. 711.
Substitution of Road Control. —
In accord with second paragraph in original. See Thom-
son v. Harnett County, 209 N. C. 662, 184 S. E. 490.
Closing Public Roads. — Part of land in a private devel-
opment was added to the playground of a public school.
The General Assembly, by private act (ch. 72, Private
Laws of 1933), declared that certain roads dedicated in the
registered plot of the development were no longer needed,
and declared that the roads should be closed and added to
the playground space for the school. This act is void as
being a private or special act inhibited by this section.
Glenn v. Board of Education, 210 N. C. 525, 185 S. E- 781.
Chapter 216, Priv. Laws 1925, is not a special statute re-
lating to roads inhibited by this section, the act not relat-
ing to the laying out, opening, altering, or discontinuance
of any particular and designated highway, street, or alley.
Deese v. Lumberton, 211 N. C. 31, 188 S. E- 857.
Applied, in dissenting opinion, in Sprunt v. Hewlett, 208
N. C. 695, 182 S. E. 655.
Cited in Newman v. Watkins, 208 N. C. 675, 18? S. E- 453.
ARTICLE III
Executive Department
§ 18. Department of Justice.
Proposed Amendment. — Public Laws 1937, c. 447, proposed
an amendment to this article, to be voted on at the next
general election, by adding a new section as follows: "The
General Assembly is authorized and empowered to create a
Department of Justice under the supervision and direction
of the Attorney General, and to enact suitable laws defin-
ing the authority of the Attorney General and other officers
and agencies concerning the prosecution of crime and the
administration of the criminal laws of the State."
ARTICLE IV
Judicial Department
§ 1. Abolishes the distinctions between actions
at law and suits in equity, and feigned issues.
Effect of Section. —
In accord with the three paragraphs under this icatchline
in the original. See Reynolds v. Reynolds, 208 N. C. 578,
182 S. E- 341.
Applied in Wolfe v. Galloway, 211 N. C. 361, 190 S. E- 213.
[ 358
Art. IV, § 2
CONSTITUTION OF NORTH CAROLINA
Art. V, § 3
§ 2. Division of judicial powers.
Power to Determine Validity of Statute. — The courts of
this state have the power and in a proper case it is their
duty, in the exercise of the judicial power vested in them
by the Constitution of this state to decide whether or not
a statute is valid. State v. Brockwell, 209 N. C. 209, 211, 183
S. E. 378.
§ 6. Supreme Court. — The Supreme Court shall
consist of a Chief Justice and four Associate Jus-
tices. The General Assembly may increase the
number of Associate Justices to not more than six,
when the work of the Court so requires. The
Court shall have power to sit in divisions, when
in its judgment this is necessary for the proper
dispatch of business, and to make rules for the
distribution of business between the divisions and
for the hearing of cases by the full Court. No
decision of any division shall become the judgment
of the Court unless concurred in by a majority of
all the Justices; and no case involving a construc-
tion of the Constitution of the State or of the United
States shall be decided except by the Court en bloc.
All sessions of the Court shall be held in the city
of Raleigh. This amendment made to the Constitu-
tion of North Carolina shall not have the effect
to vacate any office or term of office now existing
under the Constitution of the State, and filled or
held by virtue of any election or appointment un-
der the said Constitution, and the laws of the
State made in pursuance thereof.
Editor's Note.— The amendment which added all of this
section after the first sentence, was proposed by Public
Laws 1935, c. 444, s. 1, and adopted at the general election
held in November 1936.
§ 8. Jurisdiction of Supreme Court.
What Reviewable.—
In accord with second paragraph in original. See State
v. Anderson, 208 N. C. 771, 182 S. E- 643.
In accord with fourth paragraph in original. See State v.
Jackson, 211 N. C. 202, 189 S. E- 510.
Theory of Trial in Lower Court Is Adhered to.—
In accord with original. See Ammons v. Fisher, 208 N.
C. 712, 182 S. E. 479.
Habeas Corpus.—
A decree in habeas corpus proceedings to determine the
custody of a child as between its divorced parents is not
appealable, the sole remedy being by certiorari to invoke
the constitutional power of the Supreme Court to supervise
and control proceedings of inferior courts. In re Ogden, 211
N. C. 100, 189 S. E- 119.
Writ of Certiorari.— Where an application for writ of cer-
tiorari in the nature of a writ of error is made for the pur-
pose of bringing up an appeal when the right of appeal is
lost in the trial court by failure to file statement of case
on appeal within the time allowed, applicant must negative
laches and show merit. State v. Moore, 210 N. C. 686, 188
S. E. 421.
§11. Residences of judges; rotation in judicial
districts; and special terms.
Residence Requirement Does Not Confer Jurisdiction. —
No jurisdiction is conferred upon a resident judge by the
requirement of this section that every judge of the Superior
Court shall reside in the district for which he is elected.
Howard v. Queen City Coach Co., 211 N. C. 329, 331, 190
S. E- 478.
§ 12. Jurisdiction of courts inferior to Supreme
Court.
An allotment or division of jurisiction is within the
contemplation of this section. The Legislature may there-
fore allot inferior courts a portion of the jurisdiction of the
Superior Court, providing also for the right of appeal. Es-
sex Inv. Co. v. Pickelsimer, 210 N. C. 541, 543, 187 S. E-
813, quoting Jones v. Standard Oil Co., 202 N. C. 328, 162
S. E- 741.
Cited in Castevens v. Stanly County, 211 N. C. 642, 191
S. E. 739.
§ 13. In case of waiver of trial by jury.
Waiver by Agreement. — Where the case on appeal recites
that the parties agreed that the court might render judg-
ment out of term and out of the district, and the judgment
recites the same, appellant's contention that trial by the
court had not been agreed upon cannot be sustained, since
trial by jury would be impossible under the agreement that
judgment might be rendered out of term and out of the dis-
trict. Odom v. Palmer, 209 N. C. 93, 182 S. E. 741.
§ 20. Disposition of actions at law and suits
in equity, pending when this Constitution shall go
into effect, etc.
Cited in Reynolds v. Reynolds, 208 N. C. 578, 182 S.
E- 341.
§ 24. Sheriffs and coroners.
Proposed Amendment. — Public Laws 1937, c. 241, proposed
that this section be amended, subject to vote at the next
general election, to read as follows: "In each county a
sherifl and a coroner shall be elected by the qualified vot-
ers thereof as is prescribed for the members of the Gen-
eral Assembly, and shall hold their offices for a period of
four years. In each township there shall be a constable
elected in like manner by the voters thereof, who shall
hold his office for a period of two years. When there is
no coroner in a county the Clerk of the Superior Court for
the county may appoint one for special cases. In case of
a vacancy existing for any cause in any of the offices cre-
ated by this section the commissioners of the county may
appoint to such office for the unexpired terms."
§ 28. Vacancies in office of justices.
Appointments Must Be Made by Clerk of Superior Court.
—An examination of the Constitution reveals the fact that
the only power or duty of a clerk of the Superior Court
mentioned therein is in this section, which provides that va-
cancies in the office of justice of the peace shall be filled
by appointment by the clerk of the Superior Court, and this
function of the office, we apprehend, must still be performed
by the clerk alone. In re Barker, 210 N. C. 617, 619, 188
S. E- 205.
§ 32. Removal of clerks of the various courts
for inability.
Quoted in Stephens v. Dowell, 208 N. C. 555, 181 S. E.
629, wherein city commissioners were held without author-
ity to dismiss clerk of municipal court without notice and
opportunity to be heard.
ARTICLE V
Revenue and Taxation
§ 3. State taxation. — The power of taxation
shall be exercised in a just and equitable manner,
and shall never be surrendered, suspended, or
contracted away. Taxes on property shall be uni-
form as to each class of property taxed. Taxes
shall be levied only for public purposes, and every
act levying a tax shall state the object to which
it is to be applied. The General Assembly may
also tax trades, professions, franchises, and in-
comes: Provided, the rate of tax on income shall
not in any case exceed ten per cent (10%), and
there shall be allowed the following exemptions,
to be deducted from the amount of annual in-
comes, to wit: for married man with a wife living
with him, or to a widow or widower having minor
child or children, natural or adopted, not less than
$2,000; to all other persons not less than $1,000,
and there may be allowed other deductions (not
including living expenses) so that only net in-
comes are taxed.
Editor's Note.— The amendment of this section was pro-
posed by Public Eaws 1935, c. 248, ss. 1, 2, and adopted at
the general election held in November 1936.
What May Be Taxed.—
Under this section all property, real and personal, is sub-
ject to taxation, unless exempt from taxation by the Con-
stitution. Hardware Mut. Fire Ins. Co. v. Stinson, 210 N.
C. 69, 185 S. E. 449.
Tax on Personal Property Owned by Nonresidents.— Sec -
[ 359
Art. V, § 4
CONSTITUTION OF NORTH CAROLINA
Art. V, § 6
tion 7971(18), subdivision (6), does not exempt from ad va-
lorem taxes in this state personal property owned by non-
residents when such personal property has a taxable situs
in this state, it being the intent to subject all property to
ad valorem taxation unless such property is exempt under
the Constitution. Mecklenburg County v. Sterchi Bros.
Stores, 210 N. C. 79, 185 S. E- 454.
The tax levied under § 78$(K156) e, subsec. 13, was held
not void as discriminatory in amount because of the pro-
vision of the section that such tax need not be paid when
the owner furnishes a certificate from a dealer in this state
to the effect that the tax has been paid, and that such
dealer will be responsible therefor to the Commissioner of
Revenue, since the section requires the same amount to be
paid regardless of whether the car is purchased from a
dealer within or outside the state. Powell v. Maxwell, 210
N. C. 211, 186 S. E. 326.
Section 7971(18) was enacted in obedience to the mandate
of this section. Lawrence v. Shaw, 210 N. C. 352, 361, 186
S. E. 504.
Special License Tax on Real Estate Brokers Discrimina-
tory.—Chapter 241, Public-Local Laws 1927, requiring real
estate brokers in certain designated counties to be licensed
by a real estate commission on the basis of moral character
and proficiency in the public interest, and requiring pay-
ment of a license fee in addition to the state-wide license
required, is unconstitutional as it applies only to the real
estate brokers in the designated counties and is therefore
discriminatory. State v. Warren. 211 N. C. 75, 189 S.
E- 105.
Applied in State v. Bridgers, 211 N. C. 235, 189 S. E. 869.
Quoted in Mecklenburg County v. Piedmont Fire Ins. Co.,
210 N. C. 171, 185 S. E- 654
§ 4. Limitations upon the increase of public
debts. — The General Assembly shall have the
power to contract debts and to pledge the faith and
credit of the State and to authorize counties and
municipalities to contract debts and pledge their
faith and credit, for the following purposes: To
fund or refund a valid existing debt; to borrow in
anticipation of the collection of taxes due and pay-
able within the fiscal year to an amount not ex-
ceeding fifty per centum of such taxes; to supply
a casual deficit; to suppress riots or insurrections,
or to repel invasions. For any purpose other than
these enumerated the General Assembly shall
have no power, during any biennium, to contract
new debts on behalf of the State to an amount in
excess of two-thirds of the amount by which the
State's outstanding indebtedness shall have been
reduced during the next preceding biennium, un-
less the subject be submitted to a vote of the people
of the State; and for any purpose other than these
enumerated the General Assembly shall have no
power to authorize counties or municipalities to
contract debts, and counties and municipalities
shall not contract debts, during any fiscal year, to
an amount exceeding two-thirds of the amount by
which the outstanding indebtedness of the partic-
ular county or municipality shall have been re-
duced during the next preceding fiscal year, un-
less the subject be submitted to a vote of the
people of the particular county or municipality. In
any election held in the State or in any county or
municipality under the provisions of this section,
the proposed indebtedness must be approved by a
majority of those who shall vote thereon. And
the General Assembly shall have no power to give
or lend the credit of the State in aid of any person,
association, or corporation, except to aid in the
completion of such railroads as may be unfinished
at the time of the adoption of this Constitution, or
in which the State has a direct pecuniary interest,
unless the subject be submitted to a direct vote of
the people of the State, and be approved by a
majority of those who shall vote thereon.
Editor's Note. — The amendment was proposed by Public
Laws 1935, c. 248, s. 3, and adopted at the general election
held in November 1936.
Section Does Not Apply to Insuring School Property. — A
county board of education has the authority to insure school
property in a mutual fire insurance company authorized to
do business in this state, and assume the contingent lia-
bility limited to the amount of the cash premium, and the
execution of such policy does not lend the credit of the
state to a private corporation under this section. Fuller v.
Lockhart, 209 N. C. 61, 182 S. E. 733.
§ 5. Property exempt from taxation. — Property
belonging to the State or to municipal corpora-
tions, shall be exempt from taxation. The General
Assembly may exempt cemeteries and property
held for educational, scientific, literary, charitable
or religious purposes; also wearing apparel, arms
for muster, household and kitchen furniture, the
mechanical and agricultural implements of me-
chanics and farmers, libraries, and scientific instru-
ments, or any other personal property, to a value
not exceeding three hundred dollars. The General
Assembly may exempt from taxation not exceed-
ing one thousand dollars ($1,000.00) in value of
property held and used as the place of residence
of the owner.
Editor's Note. — The amendment, which added the last
sentence of this section, was proposed by Public Laws 1935,
ic. 444, s. 2, and adopted at the general election held in
November 1936.
The amendment of 1936 is only permissive in terms and
not self-executing. The power of exemption, to the extent
therein mentioned, is exercisable, in whole or in part, or
not at all, as the General Assembly, in its wisdom, shall de-
termine. Nash v. Board of Com'rs, 211 N. C. 301, 304, 190
S. E. 475.
Municipal Bonds to Provide Schoolhouses and Equipment
Are Exempt. — Bonds issued by a municipality to provide
schoolhouses and equipment were for a public purpose, and
§ 7971(19), in effect at the time the bonds were issued,
is constitutional and valid, the Legislature having been
given authority by this section to provide for such exemp-
tion from ad valorem taxation. Since the bonds, although
the property of a private corporation, were issued for a
necessary public purpose and purchased in reliance upon
the statutory provision exempting them from taxation,
they stand upon the same footing as the school buildings
erected with the proceeds of the bonds. Mecklenburg County
v. Piedmont Fire Ins. Co., 210 N. C. 171, 185 S. E. 654.
Municipal property acquired by tax foreclosure and sub-
sequently rented is liable for county taxes, since it is not
used by the city for a governmental purpose, and therefore
does not come within the constitutional provision for the
exemption of property from taxation. Benson v. Johnston
County, 209 N. C. 751, 185 S. E- 6. See also, in this con-
nection, Board of Financial Control v. Henderson County,
208 N. C. 569, 181 S. E- 636, 101 A. L- R. 783.
§ 6. Taxes levied for counties.
General or Special Act Suffices. —
The last paragraph of § 1335, authorizing a county to levy
a tax to pay a public hospital for the care and hospitali-
zation of the indigent sick of the county under a contract
with a hospital does not violate this section since the
tax contemplated is for a special, necessary purpose, with
special approval of the General Assembly. Martin v. Board
of Com'rs, 208 N. C. 354, 180 S. E- 777.
Bonds Issued to Refund Other Bonds. —
Under ch. 342, Public-Local Laws 1935, defendant county
proposed to issue county bonds to refinance bonds issued
by the townships of the county. The proceeds of the town-
ship bonds were used in the construction of highways which
were later taken over by the county and thereafter by the
state. The proposed county bond issue is for a county pur-
pose within the meaning of this section. Thomson v. Har-
nett County, 209 N. C. 662, 184 S. E- 490.
A county has authority to issue funding and refunding
bonds.
In accord with original. See Thomson v. Harnett County,
209 N. C. 662, 184 S. E. 490.
Bonds for Erection of Jail. — Where the erection of a new
jail was a public necessity, bonds necessary to provide
funds for the erection are for a special necessary county
expense under §§ 1297, 1317, and the taxes necessary to pay
principal and interest of such bond issue are not subject to
[360]
Art VI, § 1
CONSTITUTION OF NORTH CAROLINA
Art. VII, § 13
limitation on the tax rate. Castevens v. Stanly County,
209 N. C. 75, 183 S. E. 3.
Cited in Castevens v. Stanly County, 211 N. C. 642, 191
S. E. 739.
' ARTICLE VI
Suffrage and Eligibility to Office
§ 1. Who may vote.
Cited in Allison v. Sharp, 209 N. C. 477, 184 S. E. 27.
§ 2. Qualifications of voters.
Cited in Allison v. Sharp, 209 N. C. 477, 184 S. E. 27.
§ 3. Voters to be registered.
Act Requiring Proof of Ability to Read and Write Is
Valid. — The provisions of § 5939 providing that a person
presenting himself for registration shall, before he is reg-
istered, prove to the satisfaction of the registrar his abil-
ity to read and write any section of the Constitution, was
held valid, since the authority was granted the legisla-
ture by this section to enact general legislation to carry
out the provisions of this article. Allison v. Sharp, 209 N.
C. 477, 184 S. E. 27.
§ 4. Qualification for registration.
The language of this section is mandatory. Allison v.
Sharp, 209 N. C. 477, 480, 184 S. E- 27.
Registrar Is Logical Person to Carry Out Requirements
of Section. — As this section of the Constitution says "pre-
senting himself for registration," someone has to determine
whether or not the person shall be able to read and write
any section of the Constitution in the English language.
Section 5939, putting this duty on the registrar is unques-
tionably a reasonable provision, and the registrar is the
logical person to carry out the provisions of the Constitu-
tion. Allison v. Sharp. 209 N. C. 477, 480, 184 S. E. 27.
ARTICLE VII
Municipal Corporations
§ 1. County officers.
County Commissioners.— Ch. 526, Public-Local Laws of 1935,
providing that Cherokee County should be divided into
three districts and that one county commissioner should be
nominated and elected by the qualified voters of each of
the districts, is constitutional as a valid exercise of legis-
lative power over municipal corporations, the General As-
sembly being given express power by art. VII, § 14, to
change and modify the provisions of this section, relating
to number and election of county commissioners. Watkins
v. Johnson, 210 N. C. 449, 187 S. E- 584.
§ 2. Duty of county commissioners.
The General Assembly can give almost unlimited power
to the counties to carry out this provision. Thomson v.
Harnett County, 209 N. C. 662, 667, 184 S. E. 490.
Supervision and Control of Roads.— Under this section the
commissioners of a county have the duty to exercise a
general supervision and control of the roads and levying
of taxes as prescribed by law in reference to roads. Thom-
son v. Harnett County, 209 N. C. 662, 667, 184 S. E- 490.
Applied in Reen v. Farmer, 211 N. C. 249, 189 S. E. 882.
§ 7. No debt or loan except by a majority of
voters.
II. GENERAL CONSIDERATION.
The only way to preserve the vitality of this section and
§ 6 of article 5 is to adhere to the construction, that the
'special purpose' for which the 'special approval' of the Gen-
eral Assembly is essential must be for a 'necessary ex-
pense' in contemplation of the constitutional provision.
Castevens v. Stanly County, 209 N. C. 75, 82, 183 S. E- 3,
citing Glenn v. Board of County Com'rs, 201 N. C. 233, 159
S. E. 439.
When Funds Are Already on Hand. —
The acquisition of the land for a municipal airport from
surplus funds was not beyond the power of the city and it
in no way offended the provisions of this section. Goswick
v. Durham, 211 N. C. 687, 689, 191 S. E. 728.
Cited in Castevens v. Stanly County, 211 N. C. 642, 191
S. E- 739.
III. NECESSARY EXPENSES.
A. General Considerations and Applications.
Legislative Declaration and Municipal Commissioners
Finding That Tax Is for Necessary Expense Is Not Con-
trolling.—The declaration of the General Assembly in a
statute authorizing a municipality to levy a tax and the
finding of the municipal commissioners that the tax is for
a necessary municipal expense within the meaning of this
section, is not controlling, but, when made in good faith,
such declaration and finding are persuasive, and are enti-
tled to serious consideration by the courts in determining
whether the purpose for which the tax is proposed to be
levied is for a necessary municipal expense within the mean-
ing of term as used in the Constitution. Martin v. Raleigh,
208 N. C. 369, 180 S. E. 786.
What Are "Necessary Expenses." —
In addition to the authorities cited in the third paragraph,
see Board of Financial Control v. Henderson County, 208
N. C. 569, 181 S. E. 636, 101 A. L. R. 783, as to a municipal
electric plant being a necessary expense.
In addition to the authorities cited in the eighth para-
graph see Burt v. Biscoe, 209 N. C. 70, 183 S. E. 1.
The sale of refunding bonds under § 1334(8), subsection
(j), is a necessary expense. Morrow v. Durham, 210 N.
C. 564, 187 S. E- 752. So also is the issuance of bonds by
a county to refinance highway bonds issued by its town-
ships. Thomson v. Harnett County, 209 N. C. 662, 184 S.
E- 490. The expense of providing for the medical treat-
ment and hospital care of the indigent sick and afflicted
poor under I 2795 is a necessary expense of a city. Martin
v. Raleigh, 208 N. C. 369, 377, 180 S. E- 786. See also, Mar-
tin v. Board of Com'rs, 208 N. C. 354, 180 S. E- 777.
The sale of intoxicating liquor is not a "necessary ex-
pense," nor is it a public purpose or undertaking. New-
man v. Watkins, 208 N. C. 675, 685, 182 S. E- 453.
While there is no contention that the construction, equip-
ment, and maintenance of an airport and landing field is
a necessary municipal expense within the meaning of this
section, yet it may not be improper to say that man's con-
stantly advancing progress in the conquest of the air as
a medium for the transportation of commerce and for pub-
lic and private use indicates the practical advantage and
possible future necessity of adequate landing facilities to
the same extent that paved streets and roads are now re-
garded for the purposes of communication and transporta-
tion on land. Goswick v. Durham, 211 N. C. 687, 689, 191
S. E. 728, citing Hargrave v. Board of Com'rs, 168 N. C. 626,
84 S. E. 1044; Dysart v. St. Louis, 321 Mo. 514, 11 S. W.
(2d) 1045.
B. School Taxation.
Premiums for insurance of its public school buildings is
a necessary public expense of a county. Fuller v. Lock-
hart, 209 N. C. 61, 182 S. E- 733.
Liability for bonds for unnecessary school buildings is
not a necessary expense. Greensboro v. Guilford County,
209 N. C. 655, 661, 184 S. E. 473.
§ 8. No money drawn except by law.
Cited in Reed v. Farmer, 211 N. C. 249, 189 S. E. 882.
§ 9. When officers enter on duty. — The county
officers , first elected under the provisions of this
article shall enter upon their duties ten days after
the approval of this Constitution by the Congress
of the United States.
Editor's Note. — The amendment, which struck out former
section 9 and renumbered the remaining sections under this
article, was proposed by Public Laws 1935, c. 248, s. 1, and
adopted at the general election held in November 1936.
§ 10. Governor to appoint justices. — The Gov-
ernor shall appoint a sufficient number of justices
of the peace in each county, who shall hold their
places until sections four, five, and six of this
article shall have been carried into effect.
§ 11. Charters to remain in force until legally
changed. — All charters, ordinances, and provisions
relating to municipal corporations shall remain in
force until legally changed, unless inconsistent
with the provisions of this Constitution.
§ 12. Debts in aid of the rebellion not to be
paid. — No county, city, town, or other municipal
corporation shall assume to pay, nor shall any tax
be levied or collected for the payment of any debt,
or the interest upon any debt, contracted directly
or indirectly in aid of or support of the rebellion.
§ 13. Powers of General Assembly over mu-
[361]
Art. VIII, § 1
CONSTITUTION OF NORTH CAROLINA
Art. X, § 6
nicipal corporations. — The General Assembly shall
have full power by statute to modify, change, or
abrogate any and all of the provisions of this
article, and substitute others in their place, except
sections seven, nine and thirteen.
Editor's Note.— Section 9 referred to in this section has
been repealed, and section 13, also referred to, is now sec-
tion 12. See note under section 9.
Dividing- County into Three Districts. — Chapter 526, Pub-
lic-Local I^aws 1935, providing that Cherokee County be
divided into three districts and a commissioner elected from
each district falls well within the full power given the
General Assembly by this section. Watkins v. Johnson, 210
N. C. 449, 451, 187 S. E. 584.
ARTICLE VIII
Corporations Other than Municipal
§ 1. Corporations under general laws.
Providing for Liability of Bank Stockholders Is Valid
Exercise of Power.— Section 225 (o), providing for the indi-
vidual liability of stockholders in banks was enacted by
the General Assembly in the valid exercise of its power
to alter, by a general law or by a special act, the law un-
der which any corporation is created. Hood v. Hewitt, 209
N. C. 810, 815, 185 S. E- 161.
§i 4. Legislature to provide for organizing cities,
towns, etc.
Alteration of Charter Not Forbidden. —
In accord with original. See Deese v. Lumberton, 211 N.
C. 31, 188 S. E- 857.
Control of Finances. — The legislature has plenary power
to control the finances of the municipal corporations which
it creates, and to direct how their revenues shall be applied.
Hence it can direct that revenues derived from municipal
enterprises shall be applied on outstanding bonds as well
as upon bonds to be issued thereafter. George v. Ashe-
ville, 80 F. (2d) 50, 55, 103 A. L. R. 568.
ARTICLE IX
Education
§ 1. Education shall be encouraged.
This and the following sections are mandatory in their
provisions. Mebane Graded School Dist. v. Alamance
County, 211 N. C. 213, 189 S. E. 873.
§ 2. General Assembly shall provide for schools ;
separation of the races.
Duty on Legislature — Mandatory. —
In accord with original. See Mebane Graded School Dist.
V. Alamance County, 211 N. C. 213, 189 S. E- 873.
Exemption of School Bonds from Taxation Is Valid. —
Bonds issued by a city as an administrative agency of the
state to provide schoolhouses and equipment are for a
public purpose, and § 7971(19), exempting such bonds from
taxation is valid. Since the bonds, although the property
of a private corporation, were issued for a necessary pub-
lic purpose and purchased in reliance upon the statutory
exemption from taxation, they stand upon the same foot-
ing as the school buildings erected with the proceeds of
the bonds. Mecklenburg County v. Piedmont Fire Ins. Co.,
210 N. C. 171, 185 S. E. 654.
County Need Not Assume Bonds of Unnecessary School
Buildings. — Where a special charter school district and a
city operating schools within a special charter school dis-
trict coterminous with its corporate limits, issue bonds, re-
spectively, for school sites, buildings, and maintenance ol
schools in order to provide better schools within the dis-
tricts than those provided by the General Assembly for the
county generally, in accordance with intent of the General
Assembly in creating such special charter districts, but
at the time such bonds are issued they are not reasonably
essential and necessary for the operation of schools in the
districts for the minimum constitutional term of six months,
the city and special charter school district are not enti-
tled to mandamus to force the county to assume such bonds
upon the taking over by the county of the buildings as a
part of the general system of public schools. Greensboro v.
Guilford County, 209 N. C. 655, 184 S. E. 473.
Cited in Allison v. Sharp, 209 N. C. 477, 184 S. E- 27.
§ 3. Counties to be divided into districts.
This section is mandatory.
In accord with original. See Mebane Graded School Dist.
v. Alamance County, 211 N. C. 213, 189 S. E. 873.
Issuance of Mandamus.—
In accord with original. See Mebane Graded School Dist.
v. Alamance County, 211 N. C. 213, 189 S. E. 873, citing
Hickory v. Catawba County, 206 N. C. 165, 173 S. E. 56,
where it was held that resort may be had to the courts
to compel performance of the duties of this section by man-
damus when indictment of the defendants would not be an
adequate remedy.
It is the duty of the state under this section to provide
a general and uniform state system of public schools of at
least six months in every year wherein tuition shall be
free of charge to all the children of the state between the
ages of six and twenty-one. It is a necessary expense and
a vote of the people is not required to make effective these
and other constitutional provisions in relation to the pub-
lic school system of the state. Mebane Graded School Dist.
v. Alamance County, 211 N. C. 213, 223, 189 S. E. 873.
Discretion of General Assembly Rules as to Financing
Public School System. — Under the mandatory provision of
this section in relation to the public school system of the
state, the financing of the public school system of the state
is in the discretion of the General Assembly by appropriate
legislation, either by state appropriation or through the
county acting as an administrative agency of the state.
Mebane Graded School Dist. v. Alamance County, 211 N.
C. 213. 223, 189 S. E- 873.
Building and Equipment Necessary for School Term. —
Under this section sites, buildings, and equipment acquired,
constructed, and used by a school district were deemed rea-
sonably essential and necessary for the conduct and opera-
tion of the six months school term at the time the said
sites, buildings, and equipment were acquired and con-
structed. Mebane Graded School Dist. v. Alamance County,
211 N. C. .213, 225, 189 S. E. 873.
Quoted in Mecklenburg County v. Piedmont Fire Ins. Co.,
210 N. C. 171, 185 S. E- 654.
Cited in Greensboro v. Guilford County, 209 N. C. 655,
184 S. E. 473.
ARTICLE X
Homesteads and Exemptions
§ 1. Exemptions of personal property.
A Constitutional Right. —
In accord with original. See Crow v. Morgan, 210 N. C.
153, 185 S. E- 668.
A debtor may legally demand his personal property ex-
emption at any time and to the last moment before the
appropriation thereof by the court, and the order of court
directing a payment of the money derived from the sale of
such property is final process within the meaning of the
Constitution giving the creditor such right until execution
or other final process. Crow v. Morgan, 210 N. C. 153, 156,
185 S. E- 668.
§ 2. Homestead.
The right to the homestead exemption is not forfeited
by a fraudulent conveyance, and the judgment was properly
modified by order directing that defendant be allotted his
homestead in the land which should be exempt from sale by
the commissioner. New Amsterdam Cas. Co. v. Dunn, 209
N. C. 736, 184 S. E- 488.
Exemption Allowed in Mortgaged Lands. — A debtor may
have his homestead exemption allotted in lands owned by
him but mortgaged to a third person, but in ascertaining
the value thereof the mortgage debt should be disregarded,
and the land appraised as though the debtor owned the un-
encumbered fee. Crow v. Morgan, 210 N. C. 153, 185 S.
E. 668.
Or Vacant Lots. — Where the only real property owned
by a judgment debtor consists of vacant lots, he may claim
his homestead therein, since he may thereafter build a
habitable structure thereon. Equitable Life Assur. Soc. v.
Russos, 210 N. C. 121, 185 S. E- 632.
§ 5. Benefit of widow.
Cited in Pence v. Price, 211 N. C. 707, 715.
§ 6. Property of married women secured to
them.
The purpose of requiring the written assent is to afford
the wife the counsel and protection of her husband, and not
to convey any estate in the realty. When he signs it un-
der her signature and then acknowledges the execution of
[ 362
RULES OF COURT
the deed as one of the grantors, but one inference can arise,
and that is that he was giving his required written assent to
her conveyance. Joiner v. Firemen's Ins. Co., 6 F. Supp.
103, 104.
Sufficiency of Husband's Written Assent.— Since the deed
of the husband conveys no title to his wife's land, but evi-
dences his written assent to her conveyance, upon reason
and authority, subscribing his name under seal to her
deed, and acknowledging his execution thereof as required
by law, is a sufficient written assent to make her deed
valid. Joiner v. Firemen's Ins. Co., 6 F. Supp. 103, 104.
Estates by entireties are not changed or affected by this
section of the Constitution as to rights of married women.
Moore v. Shore, 208 N. C. 446, 447, 181 S. F. 275, citing
Bank of Greenville v. Gornto, 161 N. C. 341, 77 S. E. 222.
The husband has the right, during coverture, to deal with
the possession of land held by him and his wife by entire-
ties without the consent of the wife, but neither may make
a contract affecting title so as to defeat the right of the
survivor in the whole estate without the consent of the
other. Moore v. Shore, 208 N. C. 446, 181 S. F. 275.
Where lots are conveyed with restrictive covenants limit-
ing buildings to residences and one of such lots is owned
by a husband and wife by the entireties, the husband
may not convey or contract in respect to the negative ease-
ment of such lot over the other lots without the consent of
his wife, since the wife has the right to such negative ease-
ment as a part of the estate if she should survive her hus-
band. Id.
§ 8. How deed for homestead may be made.
Cited in Pence v. Price, 211 N. C. 707, 716, 192 S. F- 99.
ARTICLE XI
Punishments, Penal Institutions, and Pub-
lic Charities
§ 7. Provision for the poor and orphans.
Care of Indigent Sick Is Proper Function of State Gov-
ernment.— In accordance with express constitutional declara-
tion of this section, the care of the indigent sick and af-
flicted poor is a proper function of the state government,
and the General Assembly may by statute require the
counties, as administrative agencies of the state, to per-
form this function, at least within their territorial limits.
Martin v. Board of Com'rs, 208 N. C. 354, 180 S. F- 777.
APPENDIX VII
Rules of Court
PART I
Rules of Practice in the Supreme
Court of North Carolina
5. Appeals — When Heard
Rules Mandatory. —
Where the record from the general county court is not
docketed in the Superior Court within the time prescribed,
the appeal is properly dismissed, it being provided by
§ 1608(cc) that appeals from the general county court shall
be governed by the rules governing appeals from the Supe-
rior Courts to the Supreme Court, and dismissal in such
circumstances is mandatory under this rule. Grogg v.
Graybeal, 209 N. C. 575, 184 S. F. 85.
19. Transcripts
Pleadings, Issues and Judgment a Part of Record. —
In accord with original. See Goodman v. Goodman, 20&
N. C. 416, 181 S. F. 328.
Appeal Properly Dismissed Where "Judgment of Superior
Court" Is Assigned as Error. — Where, on appeal from
judgment of the general county court to the Superior Court
on matters of law, the Superior Court overrules each of
the exceptions relied upon by appellant, upon further ap-
peal to the Supreme Court the appellant should bring for-
ward each ruling of the Superior Court on the exceptions
deemed erroneous, and properly group them and assign
same as error, and where appellant merely assigns as er-
ror "the judgment of the Superior Court," the appeal will
be dismissed or the judgment affirmed. Harrell v. White,
208 N. C. 409, 181 S. F. 268.
Exceptions to Rulings Granting New Trial Should Be
Specifically Stated in Case of Appeal to Supreme Court. —
When an appeal is taken from the general county court
to the Superior Court for errors assigned in matters of law,
as authorized by § 1608(cc), and a new trial is granted by
the Superior Court, it is essential that the rulings upon
exceptions granting the new trial be specifically stated,
so that in case of appeal to the Supreme Court they may
be separately assigned as error in accordance with this rule,
and properly considered on appeal. Jenkins v. Castelloe,
208 N. C. 406, 407, 181 S. F. 266.
Effect of Failure to Comply. — Although case on appeal
was not prepared in accordance with subsection (4) of this
rule the appeal was allowed as a dismissal would have been
a denial of justice. Messick v. Hickory, 211 N. C. 531, 191
S. F. 43.
Applied, as to subsection (3), in Hancock v. Wilson, 211
N. C. 129, 134, 189 S. F. 631.
21. Exceptions
I. EXCEPTIONS.
Defendant desiring evidence to be restricted to particular
purpose should make request to that effect. State v. Hen-
dricks, 207 N. C. 873, 178 S. F- 557.
27. Briefs
When No Brief Filed.—
Where defendant, convicted of a capital felony, fails to
file a brief in the Supreme Court, the appeal will be dis-
missed on motion of the Attorney- General after an exami-
nation of the record discloses no error. State v. Kinvon,
210 N. C. 294, 186 S. F- 368.
28. Appellant's Brief
Exceptions Not Discussed Deemed Abandoned. —
In accord with first paragraph in original. See State v.
Wells, 209 N. C. 358, 183 S. F- 282; Stephenson v. Honey -
eutt, 209 N. C. 701, 184 S. F. 482; Sparks v. Holland, 209
N. C. 705, 184 S'. F- 552; Hicks v. Nivens, 210 N. C. 44,
185 S. F. 469; Taylor v. Rierson, 210 N. C. 185, 185 S. E
627; Texas Co. v. Elizabeth City, 210 N. C. 454, 187 S.
F. 551.
In accord with third paragraph in original. See State v.
Tate, 210 N. C. 613, 188 S. F- 91.
Effect of Failure to Set Forth Exceptions and Assign-
ments of Error. — The exceptions and assignments of error
were not set forth in defendant appellant's brief. This is
tantamount to the admission that the evidence was sufficient
to be submitted to the jury. State v. Walls, 211 N. C. 487,
492, 191 S. F- 232.
Cited in State v. Hendricks, 207 N. C. 873, 178 S. F. 557;
State v. Kinyon, 210 N. C. 294, 186 S. F- 368.
37. Abatement and Revivor
Where a party dies pending appeal, his personal represent-
ative will be made a party by order of the Court. First,
etc., Nat. Bank v. Toxey, 210 N. C. 470, 187 S. F. 553.
[ 363
Codification of Laws
EXTRAORDINARY SES-
SION OF 1936
Ch. Sec. Code
1 1-19 8052(1)-
8052(19)
2 1 7534(6)
2 2 7531(8)
PUBLIC LAWS OF 1937
Ch. Sec. Code
1 3857(a)
3 5030
4 2532
5 1, 2 3319(b)
7 3303
11 5182
12 5175(d)
13 65(a)
14 4018(b)
15 1, 2 7976(b)
16 1 1403
16 2 1407
17 7085(4)
18 5182(a)
19 2315
21 2334(b)
22 1-6 4930(1)-
4930(6)
22 7-16 4930(8)-
4930(17)
22 18, 19 4930(18),
4930(19)
24 1-3 4930(5)
24 4 4930(7)
25 4958(7)
26 690
27 1443
29 1443
30 1-8 5382(1)-
5382(8)
32 1, 2 3202(1)
34 2621(71)
35 215(l0)b
39 6294(1)
40 1443
41 1297
42 3846(bb)
43 1260
46 4458
48 1443
49 1-27 3411(65)-
3411(91)
49 27 3411(38)-
3411(64) Repealed
51 2 215(9)
51 3 215(11)
51 4 215(19)
52 1443
53 1663(1)
54 1608(f)
55 65(a)
56 ( 1608(u)
57 2744(a)
58 1608(n)
59 6670(b)
Ch. Sec. Code
62 1-4 2621(331)-
2621(334)
63 1681
64 1443
69 4103
70 74
71 3243
72 1-8 1435(d)-
1435(k)
75 1681
80 2492(55)
82 7472(q)4
84 1608(cc)
86 1-11 5168(eee)-
5168(ooo)
87 1-13 5168(ppp)-
5168 (bbbb)
88 1 7748(s)
89 649
90 6558(a)
91 3366(j6)
93 952
94 6658
95, 96 4458
98 3225
100 1, 2 1659(a)
102 1443
104-107 1443
108 1 1706
108 2 1112(b)
111 2613(il5)
112 1, 2 4511(h)
115 1-4 7472(yyl)
116 7362(c)
117 5470(b)
118 1681
121 65(a)
124 1-14 5126(12)-
5126(25)
124 15^ 5126(26)
124 16 5126(5)
125 1 7312(7)
125 2 7312(11)
125 3, 4 7312(15),
7312(16)
126 5694(sl)
127 1-12 7880(1)-
7880(12)
127 13-19 7880(14)-
7880(20)
127 20, 21 7880(22),
7880(23)
127 21^ 7880(21)
127 22-28 7880(24)-
7880(29)a
127 29 7880(13)
127 100 7880(30)
127 102-110 7880(31)-
7880(39)
127 111-121 7880(41)-
7880(51)
127 122-142 7880(53)-
7880(73)
127 143-163 7880(75)-
7880(94)
Ch. Sec. Code
127 166 7880(97)
127 181-191 7880(98)-
7880(108)
127 201-208 7880(109)-
7880(116)
127 210 .. 7880(118-119)
127 211 7880(119)b
127 212 7880(123)a
127 213-215 7880(121)-
7880(123)
127 216 7880(123)c
127 217 7880(123)b
127 300-302 7880(124)-
7880(126)
127 310-324 7880(127)-
7880(142)
127 326-329 7880(144)-
7880(147)
127 331-336 7880(149)-
7880(154)
127 340, 341 7880(155),
7880(156)
127 400-402 7880(l56)a-
7880(156)c
127 404 7880(l56)e
127 405 7880(156)g
127 406 7880(l56)f
127 407 7880(156)h
127 407 7880(l56)p
127 408 7880(156)i
127 411, 412 7880(156)1,
7880(l56)m
127 414 7880(l56)o
127 415-418 7880(l56)p
7880(l56)s
127 420-426 7880(l56)u-
7880(156)aa
127 427 7880(156)dd
127 500-525 3411(92)-
3411(118)
127 527 3411(dd)-
341l(mm) Repealed
127 527, 528 3411(119),
3411(120)
127 600-609 .... 7880(156)ee-
7880(156)nn
127 700-716 .... 7880(l56)oo-
7880(l56)eee
127 800-839 7880(157)-
7880(195)
128 1, 2 8012(d)
130 6398
131 4688(a)
Repealed
132 1-13 4665(1)-
4665(13)
133 1-3 1137(a)
135 1-3 5018(63)-
5018(65)
137 3907
138 1 5003^w)
Repealed
138 2, 3 5003(wl),
5003 (w2)
138 4 5003(n)
:66 ]
CODIFICATION OF LAWS
Ch.
138
138
138
139
143
145
146
147
147
148, 149
150
150
150
151
152
153
154
155
156
157
159
160
162, 163
165
167
169
171
172
173
174
175
178
179
181
183
184
184
184
186
188
189
190
192
194
196
197
198
198
199
201
203
206
207
208
209
210
214
215
Sec. Code
5 5003(r)
6 5003(u)
7 5003 (x)
5805(e)
1244
1, 2 7362(p),
7362(q)
5912(a)
1 7329
2 7334
3904(j)
8052(6)
8052(15)
8052(17)
2329
1, 2 2141(28),
2141(29)
4870(rr)
220(a)
1, 2 199(a),
199(b)
1443
4428
1443
6122(j)l
1443
1112(o)
1443
1-10 5754(7)-
5754(16)
1218
2717(b)
1428
4667
1-12 4895(26)-
4895(37)
6508
1144
5168(jl)
3175(a)
5780(ml)-
5780(m5)
5780(m8)
5780(ml0)
220(b)
962(b)
1, 2 4409(1),
4409(2)
1-15 4035(1)-
4035(15)
1443
3924(aa)
1-6 4437(r)-
4437 (w)
7280
1 5449-5451
Repealed
2, 3 5451(a)
1 3884(a)
961(a)
4458
6604(a)
4311(a)
6530
1-4 65(b)-65(e)
1443
1443
7880(158)
Ch. Sec. Code
217 1-6 1808(1)-
1808(6)
220 225(g)
221 2304(ff2)
222 7661
223 1197
224 1, 2 6869, 6870
225 4109
226 4516
227 5168 (kl)
229 1-3 ... 7880(156)ppl
230 7194(a)
231 1, 2 6355(1),
6355(2)
232 4780(3)
233 1, 2 7880(l56)cc
234 1-4 622(a)
235 5912(1)
236 3207(a)
237 3411(68)
239 1-14 6476(aa)-
6476 (oo)
242 1, 2 5912(m),
5912(n)
243 2304(p)
244 1-4 725l(w)6-
725l(w)9
247 1-3 2613(j)-
2613(1)
247 4 2613(q)
247 5 2613 (v)
247 6 2613 (aa)
248 4369
249 1 7880(30)
249 2 7880(60)a
249 3 7880(140)
249 4 7880(156)dd
249 5 7880(53)
249 5 7880(86)
249 6 3411(93)
249 7-9 3411(96)-
3411(98)
249 10 341l(l0l)a
249 11 3411(102)
249 12 3411(104)
249 13, 14 3411(108),
3411(109)
249 15 341l(110)a
249 16, 17 3411(111),
3411(112)
249 18 ... 7880(l56)ccc
249 18^ 3411(112)
254 3909
256 1-10 1224(j)-
1224(s)
257 1, 2 4548(a)
258 6055(a33)
259 1-3 7971(208)
260 7667(e)
261 1965(a)
262 7667
271 3543(1)
272 3857(a)
273 1-27 4556(1)-
4556(29)
273 29 4556(a)-
4556 (y) Repealed
273 30 4556(30)
275 5912(2)
Ch. Sec. Code
277 7343(k)
280 3542(d)
281 7251 (t)
282* 1681
283 1, 2 1443
284 3366 (j5)
285 5 126 (la)
286 4458
288 1-28 5018(1)-
5018(28)
288 30-58 5018(29)-
5018(57)
288 60 5018(58)
288 61 5067(a)-
5067(h) Repealed
288 62-63^-A 5018(59)
5018(62)
290 3904(j)
291 1, 2 7971(104),
7971(105)
291 200-204 7971(106)-
7971(110)
291 300-304 7971(111)-
7971(115)
291 400-410 7971(116)-
7971(126)
291 500, 501 7971(127),
7971(128)
291 600-603 7971(129)-
7971(132)
2191 700, 701 7971(133),
7971(134)
291 800-803 7971(135)-
7971(138)
291 900-908 7971(139)-
7971(147)
291 1000-1006 7971(148)-
7971(154)
291 1100-1109 7971(155)-
7971(164)
291 1200-1202 7971(165)-
7971(167)
291 1300-1303 7971(168)-
7971(171)
291 1400-1403 7971(172)-
7971(175)
291 1500-1504 7971(176)-
7971(180)
291 1600-1621 7971(181)-
7971 (-202)
291 1700-1703 7971(203)-
7971(206)
291 1703 7971(1)-
7971(51) Repealed
291 1703 7971(52)-
7971(98) Repealed
291 1704 7971(207)
292 1-14 7312(cc)-
7312(pp)
292 17, 17 */2 7312(qq),
7312(rr)
293 1 6715
293 2 6726
294 2373
297 1 7748(b)
2',97 2 3846 (j)
297 Sy2 1364(1)
CODIFICATION OF LAWS
[ 367
Ch. Sec. Code
298 1-11 725l(hh)25-
7251(hh)35
298 13 .!.. 7251(hh)13-
7251 (hh) 24 Repealed
298 13 7251 (hh) 36
300 1 4823
300 2, 3 4830, 4831
300 4 4831(1)
301 1 6701
301 2 6704
Repealed
301 3 6708
Repealed
301 3 6708(a),
6708(b)
304 1 7025
304 2, 3 ... 7039(b),
7039 (bl)
307 2195
308 1, 2 3258, 3259
308 3 3262
309 1443
311 2287
313 1, 2 . . . 3846(mmm),
3846(mmm)l
316 5133(1)
317 1-20 5038(1)-
5038(20)
317 22 5032-5033
Repealed
317 22 5034
Repealed
317 22 5038(21)
318 5168 (j)
319 1 5004
319 2 5006
319 3-5 5014-5016
322 1, 2 4265(a)
323 7534(6)
325 3411(30)
329 4458
330 4651
333 220(a)2
335 3411(121)
336 65(a)
337 1, 2 7220(g),
7220(h)
339 1 323(b)
339 iy2 4530(1)
341 7757(a)l
342 3874
343 1181(b)
345 7534(3)-
7534(5) Superseded
345 1-8 7534(5a)-
7534(5h)
347 1177
348 3890(a)
349 1-10 7534(9)-
7534(18)
Ch. Sec. Code
350 1-7 5126(k)-
5126(q)
350 10 5126(r)
351 6786
352 1, 2 214l(c)l
353 5468
354 8060
355 7534(o)l
357 7695(a)
3i57 7695(c)
Superseded
359 442
360 1, 2 1138(a)
361 598
362 1 6696
362 2 6697(a)
362 3 6699
363 8052(20)
364 6022
366 7880(34)
367 1-5 4723(a)
368 437
370 1681
371 1443
374 1-11 7534(19)-
7534(29)
377 65(a)
378 6926
379 1-4 7534(cc)-
7534(fT)
383 4159(a)
384 1, 2 . . 390(1), 390(2)
387 1443
387 1 1443
387 3 1443
393 1-13 7395(34)-
7395(46)
394 5780(41)-
5780(77) Superseded
394 1-31 5780(84)-
5780(121)
397 1-3 2618(d)
398 3411(37)a
399 1, 2 4931, 4932
400 5786(1)
401 1083
402 6659(b)
403 2613 (o)
405 5018(52)
406 6564(3)
407 1-99 2621(186)-
2621(285)
407 101-144 2621(286)-
2621(329)
407 146 2621(330)
408 1443
409 1-11 6564(1)-
6564(11)
411 3411(66)
Ch.
411
411
411
411
411
411
411
413
414
415
415
415
416
419
422
425
427
428
429
429
430
430
430
431
431
431
432
432
433
434
435
437
437
439
440
441
443
444
445
446
448
448
448
449
451
454
457
Sec. Code
3411(68)
3411(70)
3411(72)
3411(74),
3411(75)
3411(80)
3411(85)
3411(88)
1-5 1441-1443
1-4'H 5126(al)-
5126(a5)
3872
3877
7310
7651(a)
220(d)
191(1)
1-29 4870(o)-
4870(qq)
1, 2 4677(a)
2959(6)
1 5168(cc)
2-8 5168 (jj)-
5168(pp)
1-3 4689(3)-
4689(5)
4, 5 4689(11),
4689(12)
6 4689(15)
3411(70)
3411(74)
3411(89)
1 276(a)
2 276(f)
220(a) 1
1 1112(fl)
4138(a)
1-28 1608(vvv)-
1608(bbbbb)
30 1608(ccccc)
1608(s)l
326(a)
1291(b)
4458
2835(a)
7583
4511(g)
1 8052(3)
2-4 8052(5),
8052(6)
5 8052(19)
6863(a)
7880(54)
5168(jl)
6055(a33)
p. 927, Resolution 19 . . 6104(a)
p. 957, Resolution 54 . . 7640(a)
INDEX
ABATTOIRS, §§ 725l(w)6-725l(w)9, see "Meat
Markets and Abattoirs."
ACCOUNTS AND ACCOUNTING.
Taxation.
Accounts receivable, § 7880(156)rr.
ACKNOWLEDGMENTS.
Husband and wife.
Acknowledgment and private examination of
married woman taken by officer who was
grantor, § 3366(j6).
Notaries.
Notaries who are stockholders, § 3175(a).
ADULTERATION.
Gasoline and oil inspection.
Adulteration of products offered for sale, §
4870(gg).
ADVERTISEMENTS.
Intoxicating liquors.
Additional regulations as to advertising, §
3411(83).
Advertising alcoholic beverages prohibited, §
3411(81).
Advertising by radio broadcasts prohibited, §
3411(82).
AGENCY.
Real estate brokers and salesmen, §§ 7312(cc)-
7312(rr), see "Real Estate Brokers and Sales-
men."
AGRICULTURE.
Commissioner of agriculture.
To establish regulations for transportation of
livestock, § 4677(a).
Gasoline and oil inspection, §§ 4870(o)-4870(rr),
see "Gasoline and Oil Inspection."
Livestock.
Commissioner to establish regulations for
transportation, § 4677(a).
Soil conservation district law, §§ 7395(34)-7395-
(46), see "Soil Conservation District Law."
AID TO DEPENDENT CHILDREN.
Acceptance of federal grants, § 5018(32).
Accounts and reports from county officers, §
5018(54).
Administration expenses, § 5018(52).
Allocation of funds, § 5018(51).
Allotments.
Procedure preliminary to, § 5018(50).
State board of allotments and appeal, § 5018-
(47).
Amount of assistance.
Changes in, § 5018(48).
Amount of relief, § 5018(33).
Appeals.
State board of allotments and appeal, § 5018-
(47).
Application for assistance, § 5018(44).
Appropriations.
Appropriations not to lapse, § 5018(39).
State appropriation, § 5018(37).
Assignments.
Assistance not assignable, § 5018(46).
N. C. Supp.— 24
AID TO DEPENDENT CHILDREN— Cont'd.
Changes in amount of assistance, § 5018(48).
County commissioners.
Action by county commissioners, § 5018(45).
County welfare board.
Powers and duties, § 5018(43).
Definitions, § 5018(31).
Dependent children, § 5018(34).
Department of charities and public welfare.
General powers and duties, § 5018(41).
Eligibility, § 5018(35).
Equalizing fund, § 5018(59).
Establishment of relief, § 5018(30).
Fraud and deceit.
Fraudulent acts made misdemeanor, § 5018-
(56).
Funds.
County fund, § 5018(38).
How provided, § 5018(61).
Custody and receipt of funds, § 5018(40).
Equalizing fund, § 5018(59).
State aid to dependent children fund, § 5018-
(36).
Transfer of state and federal funds to the
counties, § 5018(53).
Investigations, § 5018(50).
Limitations of article, § 5018(57).
Local boards.
Powers and duties, § 5018(43).
Organization; appointment of agencies; em-
ployment, § 5018(60).
Periodic reconsideration and changes in amount
of assistance, § 5018(48).
Removal to another county, § 5018(49).
Reports, § 5018(50).
Short title, § 5018(58).
State board of charities and public welfare.
Powers and duties, §§ 5018(42), 5018(55).
Termination of federal aid, § 5018(62).
ALIENS.
Probate and registration.
Copies of deeds made by alien property cus-
todian, § 3319(b).
ANIMAL DISEASES.
Bang's disease, §§ 4895(26)-4895(37).
ANNUITIES.
Taxation.
Gift tax, § 7880(156)11.
APPEALS.
Aid to dependent children.
State board of allotments and appeals, § 5018-
(47).
Civil county courts.
Under Acts of 1937, § 1608(wwww).
Discovery of assets.
Executors and administrators, § 65(c).
Executors and administrators.
Discovery of assets, § 65(c).
Justices of the peace.
Civil county courts, § 1608 (rrrr).
Old age assistance.
State board of allotments and appeal, § 5018-
(18).
370
INDEX
APPEALS— Cont'd.
Taxation.
Gift tax, § 7880(l56)mm.
Review of returns, § 7880(l23)a.
ARREST.
Attorney and client.
Right of person arrested to communicate with
counsel, § 4548(a).
Bail and recognizance.
Duty of arresting officer, § 4548(a).
Person arrested permitted to give bail bond,
§ 4548(a).
Communication with counsel and friends, §
4548(a).
Extradition, §§ 4556(l)-4556(30), see "Extradi-
tion."
Information as to charge.
Duty of arresting officer, § 4548(a).
Suspension of sentence and probation, § 4665(4).
ASSETS.
Discovery of assets, §§ 65(b)-65(e), see "Exec-
utors and Administrators."
ASSIGNMENTS.
Aid to dependent children.
Assistance not assignable, § 5018(46).
Old age assistance.
Assistance not assignable, § 5018(17).
ASSISTANCE.
Aid to dependent children, §§ 5018(30)-5018(62),
see "Aid to Dependent Children."
Assistance for the Blind, §§ 5126(13)-5126(26),
see "Deaf, Dumb and Blind."
Old age assistance, §§ 5018(l)-5018(29), see
"Old Age Assistance."
ATTORNEY AND CLIENT.
Arrest.
Right of person arrested to communicate
with counsel, § 4548(a).
North Carolina state bar.
Inherent powers of courts unaffected, § 215-
(19).
BAD CHECKS.
Motor vehicles.
Penalty for bad checks, § 2621(324).
BAIL AND RECOGNIZANCE.
Arrest.
Duty of arresting officer, § 4548(a).
Extradition.
Bail in certain cases; conditions of bond, §
4556(16).
Forfeiture, § 4556(18).
BANG'S DISEASE, §§ 4895(26)-4895(37).
BANKRUPTCY AND INSOLVENCY.
Judgment.
Cancellation of judgments discharged through
bankruptcy proceedings, § 622(a).
BANKS AND BANKING.
Deposits.
Access to safe deposits of a decedent, § 7880-
(21).
Taxation, § 7880(156)pp.
BANKS AND BANKING— Cont'd.
Joint tenants and tenants in common.
Access to safe deposits of a decedent, § 7880-
(21).
Taxation, § 7971(176).
Access to safe deposits of a decedent, § 7880-
(21).
Article not to conflict with § 7880(156) oo et
seq., § 7971(179).
Department of revenue authorized to relieve
banks of duty of collecting tax on intangi-
bles, held by clerks of courts, § 7880-
(I56)ppl.
Intangible personal property tax, § 7880-
(I56)xx.-
Persons, firms, banks and corporations deal-
ing in securities.
Taxed as private banker, § 7971(152).
Private banks and bankers, § 7971(151).
University of North Carolina.
Certain unclaimed bank deposits to univer-
sity, § 5786(1).
BARBERS AND BARBERSHOPS.
Certificate.
When barbers entitled to certificate of reg-
istration without examination, § 5003 (w2).
Chapter given state-wide application, § 5003-
(wl).
Examination.
When barbers entitled to certificate of regis-
tration without examination, § 5003 (w2).
BOARDS OF CHARITIES.
Aid to dependent children, §§ 5018(30)-5018-
(62), see "Aid to Dependent Children."
Home boarding fund.
Administration of fund by state board of
charities and public welfare, § 5018(65).
No benefits to children otherwise provided
for, § 5018(64).
State boarding home fund created, § 5018(63).
Old age assistance, §§ 5018(l)-5018(29), see
"Old Age Assistance."
BONDS.
Taxation.
Intangible personal property tax, § 7880-
(156) tt.
Uniform principal and income act, §§ 4035(1)-
4035(15), see "Uniform Principal and Income
Act."
Wills.
Prosecution bond required in actions to con-
test wills, § 4159(a).
BOTTLES.
Larceny.
Destruction or taking of soft drink bottles, §
4265(a).
BRIDGES.
Motor vehicles.
Special speed limitation on bridges, § 2621-
(291).
Taxation.
Bridge companies, § 7971(186).
INDEX
[ 371
BROKERS.
Real estate brokers and salesmen, §§ 7312(cc)-
7312(rr), see '"Real Estate Brokers and Sales-
men."
Taxation, § 7971(151).
Reports, § 797l(l50).
Security brokers, § 7971(151).
BUILDING AND LOAN ASSOCIATIONS.
Conversion of federal association into state as-
sociation, § 5175(d).
Loans.
Direct reduction of principal, § 5182(a).
Reduction of principal, § 5182(a).
Taxation, § 797l(l77).
Article not to conflict with § 7880(156) oo et
seq., § 7971(179).
Evidences of debt, § 7880(156)tt.
Foreign building and loan associations, §
7971(178).
BUILDINGS.
Counties.
Special building fund to aid in erection of
schoolhouses, § 7472 (yyl).
Regulations as to issue of building permits, §
5168(oo).
Taxation.
Building materials, § 7880(156)dd.
BUREAU OF IDENTIFICATION, §§ 7534(9)-
7534(18), see "State Bureau of Identification
and Investigation."
BURIAL.
Mutual burial or assessment insurance associa-
tions, §§ 6476(aa)-6476(oo), see "Insurance."
BURIAL ASSOCIATIONS.
Mutual burial or assessment insurance associa-
tions, §§ 6476(aa)-6476(oo), see "Insurance."
CANALS.
Taxation, § 7971(202).
CASWELL TRAINING SCHOOL.
Certain acts prohibited for protection of in-
mates, § 5912(1).
Payment for student work, § 5912(2).
CHAMBERS AND VACATION.
Judicial sales.
Confirmation, § 598.
CHILD LABOR.
Age, § 5038(1).
Certificates of age, § 5038(16).
Hazardous occupations prohibited for minors
under eighteen, § 5038(7).
Hazardous occupations prohibited for minors
under sixteen, § 5038(6).
Certificate.
Age.
Certificates of age, § 5038(16).
As evidence, § 5038(13).
Duties of employers in regard to, § 5038(15).
Employment certificate required, § 5038(9).
Method of issuing, § 5038(12).
Officers authorized to issue certificate, § 5038-
(10).
CHILD LABOR— Cont'd.
Certificate — Cont'd.
Refusal and revocation, § 5038(11).
Regular certificate, § 5038(14).
State supervision of issuance, § 5038(17).
Vacation certificate, § 5038(14).
Criminal law.
Penalties, § 5038(20).
Employment certificate, see within this title,
"Certificate."
Evidence.
Employment certificate, § 5038(13).
Hazardous occupations prohibited for minors
under eighteen, § 5038(7).
Hazardous occupations prohibited for minors
under sixteen, § 5038(6).
Hours, § 5038(2).
Posting, § 5038(4).
Inspection, § 5038(19).
Lunch period, § 5038(3).
Prosecutions, § 5038(19).
Repeal of laws, § 5038(21).
Rules and regulations, § 5038 (18).
Street trades.
Employment of minors in street trades; sale
or distribution of newspapers, etc., §
5038(8).
Time records, § 5038(5).
CHILDREN.
Aid to dependent children, §§ 5018(30)-5018-
(62), see "Aid to Dependent Children."
Home boarding fund.
Administration of fund by state board of
charities and public welfare, § 5018(65).
No benefits to children otherwise provided
for, § 5018(64).
State boarding home fund created, § 5018(63).
CHILD WELFARE.
Aid to dependent children, §§ 5018(30)-5018-
(62), see "Aid to Dependent Children."
Home boarding fund, §§ 5018(63)-5018(65).
CITIZENSHIP.
Citizenship restored.
Persons committed to certain training schools,.
§§ 390(1), 390(2).
CIVIL COUNTY COURTS.
Under Acts of 1937.
Abolishing court, § 1608(aaaaa).
Appeals.
Appeal from justices court, § 1608 (rrrr).
Appeal to superior court, time for perfect-
ing appeal, record on appeal, briefs, judg-
ment, appeal to supreme court, § 1608-
(wwww).
Clerk of court, § 1608 (bbbb).
Deputies.
Appointment and removal, § 1608 (dddd).
Oath and power, § 1608(eeee).
Oath, § 1608(cccc).
Costs, § 1608 (zzzz).
Counties excepted, § 1608(ccccc).
Court seal, § 1608 (yyyy).
Establishment, § 1608 (vvv).
Existing laws not repealed, § 1608(bbbbb).
Fees, § 1608(zzzz).
INDEX
CIVIL COUNTY COURTS— Cont'd.
Under Acts of 1937— Cont'd.
Judges.
Appointment, § 1608 (xxx).
Disqualification, § 1608 (aaaa).
Oath, § 1608(yyy).
Qualification, § 1608(www).
Salary, § 16G8(zzz).
Substitute, § 1608(xxx).
Vacancies, § 1608(xxx).
Judgments.
Enforcement, § 1608 (xxxx).
Jurisdiction, § 1608(qqqq).
Jury trial, § 1608 (hhhh).
Drawing juries, § 1608(nnnn).
In cases instituted in superior court or be-
fore magistrate, § 1608 (kkkk).
Judge may impanel jury on own motion, §
1608(mmmm).
Number.
Demand and deposit for jury of twelve, §
1608(1111).
Jury of six, § 1608(1111).
Pay of jurors, § 1608 (nnnn).
Summons of jurors, § 1608 (nnnn).
Talesmen, § 1608(oooo).
Terms of court, § 1608 (pppp).
Waiver, § 1608(iiii).
Jurisdiction concurrent with justice of
peace, § 1608(jjjj).
Jurisdiction concurrent with superior
court, § 1608 (iiii).
When court opens, § 1608(pppp).
Justices of the peace.
Appeals from justice of the peace, § 1608-
(rrrr).
Removal of cause before justice of peace,
§ 1608(ssss).
Pending cases, transfer, § 1608(tttt).
Pleadings, § 1608 (vvvv).
Procedure, § I608(vvvv).
Processes, § 1608(vvvv).
Records; blanks, forms, books, stationery, §
1608(uuuu).
Sheriff, § 1608 (ffff).
Stay of execution, § 1608 (xxxx).
Stenographer, § 1608(gggg).
CLEANERS AND CLEANING,
5382(8), see "Dry Cleaners."
Licenses, § 7880(70).
:§ 5382(1)
CLERKS OF COURT.
Money in hand.
Payment of sum due minor insurance bene-
ficiary, § 961(a).
COMMISSION ON INTERSTATE CO-OP-
ERATION.
Advisory boards, § 7534(25).
Appointment of delegations and committees, §
7534(25).
Council of state governments a joint govern-
mental agency, § 7534(28).
Employment of secretary, § 7534(26).
Establishment of commission, § 7534(22).
Expenses, § 7534(26).
Functions and purpose, § 7534(24).
Governor's committee, § 7534(21).
House committee, § 7534(20).
COMMISSION ON INTERSTATE CO-OP-
ERATION—Cont'd.
Legislative committees constitute senate and
house council of American Legislators' As-
sociation, § 7534(23).
Names of committees designated, § 7534(27).
Persons eligible for membership, § 7534(25).
Reports to governor and general assembly, §
7534(26).
Secretary of state to communicate text of meas-
ure to officials and governing bodies of other
states, § 7534(29).
Senate committee, § 7534(19).
CONSERVATION.
Soil conservation district law, §§ 7395(34)-
7395(46), see "Soil Conservation District
Law."
CONSTITUTION OF NORTH CAROLINA.
Counties.
Debts in aid of the rebellion not to be paid,
Appx. I, const, art. VII, § 12.
When officers enter upon duty, Appx. I,
const, art. VII, § 9.
Justices of the peace.
Governor to appoint justices, Appx. I, const,
art. VII, § 10.
Municipal corporations.
Charters to remain in force until legally
changed, Appx. I, const, art. VII, § 11.
Debts in aid of the rebellion not to be paid,
Appx. I, const, art. VII, § 12.
Powers of general assembly over municipal
corporations, Appx. I, const, art. VII, § 13.
Taxation.
State taxation, Appx. I, const, art. V, § 3.
CONTRACTORS.
Electrical contractors.
Board of examiners.
Compensation and expenses, § 5168 (ppp).
Creation, § 5168(ppp).
Examinations.
Given by board, § 5168(sss).
Funds, § 5168(rrr).
Meetings, § 5168(ppp).
Members appointed and officers, § 5168(ppp).
Principal office, § 5168(ppp).
Quorum, § 5168(ppp).
Seal, § 5168(rrr).
Secretary-treasurer, § 5168(qqq).
Duties, § 5168(rrr).
Terms, § 5168(ppp).
Criminal law, § 5168 (b'bbb).
Examinations.
Examination before local examiner, § 5168-
(www).
Fees.
Used for administrative expense, § 5168-
(vvv).
Licenses.
Assignable or transferable, § 5168(yyy).
Display, § 5168(xxx).
Does not relieve compliance with codes or
laws, § 5168(zzz).
Examination required, § 5168(ttt).
Expiration, § 5168 (vvv).
Fees, § 5168(uuu).
Firms or corporations, § 5168(ttt).
INDEX
[ 373
CONTRACTORS— Cont'd.
Electrical contractors — Cont'd.
Licenses — Cont'd.
Issuance by board, § 5168(sss).
Persons required to obtain, § 5168(ttt).
Register of licenses, § 5168(xxx).
Renewal, § 5168(vvv).
Signed by chairman and secretary-treasurer,
§ 5168(xxx).
Suspension or revocation, § 5168(yyy).
Negligence, § 5168(aaaa).
Records, § 5168(xxx).
Regulations as to issue of building permits, §
5168(oo).
Tile contractors.
Application for examination, § 5168(jjj).
Certificate of registration, § 5168(jjj).
Definition, § 5168 (iff).
Examination.
No examination required of present con-
tractors, § 5168(mmm).
Fee for renewal of registration, § 5168 (kkk).
Licenses.
Board.
Appointment and removal, § 5168 (ggg).
Authority, § 5168 (hhh).
Compensation, § 5168 (hhh).
Creation, § 5168(ggg).
Meetings, § 5168(hhh).
Membership, § 5168(ggg).
Oath of office, § 5168(hhh).
Organization, § 5168(hhh).
Secretary-treasurer, § 5168(iii).
Fraud or misrepresentation in procuring, §
5168(ooo).
Licenses required, •§ 5168(eee).
No license required of employees, § 5168-
(nnn).
One member of firm, § 5168(nnn).
Revocation, §§ 5168(kkk), 5168(111).
CONTRACTS.
Fair trade, §§ 5126(k)-5126(r), see "Trade-
marks, Brands and Marks."
CO-OPERATIVE ORGANIZATIONS.
Conversion of federal association into state as-
sociation, § 5175(d).
CORPORATION COMMISSION AND UTIL-
ITIES COMMISSIONER.
Rates.
Approval of rail rate increase without hear-
ing, § 1112 (o).
Transportation advisory commission abolished;
powers and duties transferred to utilities com-
mission, § 1112(fl).
Utilities commissioner.
Administration of Capital Issues Law trans-
ferred to secretary of state, § 3924(aa).
Approval of rail rate increase without hearing,
§ H12(o).
CORPORATIONS.
Charitable, educational and reformatory corpo-
rations.
Severance of certain partially merged chari-
table, educational or social corporations, see
within this title, "Severance of Certain
Partially Merged Charitable, Educational
or Social Corporations."
CORPORATIONS— Cont'd.
Conveyances.
Certain corporate conveyances validated, §
1138(a).
Dividends.
Uniform principal and income act, §§ 4035(1)-
4035(15), see "Uniform Principal and In-
come Act."
Fees.
Secretary of state not to file corporate papers
until fees paid, § 1218.
Foreign corporations.
Domestication, § 1181(b).
Secretary of state to require domestication, §
1181(b).
Merger of corporations, see within this title,
"Severance of Certain Partially Merged Char-
itable, Educational or Social Corporations."
Process agent.
Process agent in county where principal office
located; service on inactive corporations, §
1137(a).
Real estate brokers and salesmen.
Licenses, § 7312(ff).
Secretary of state.
Require domestication, § 1181(b).
Severance of certain partially merged charitable,
educational or social corporations.
Agreement between officers and directors for
division and accounting, § 1224 (n).
Application of article, § 1224(j).
Certificates of severance, § 1224(o).
Election of officers for severed corporations,
§ 1224(m).
Fees of secretary of state, § 1224(s).
Objection to severance and demand for pay-
ment for stock; failure to object deemed as-
sent, § 1224(q).
Original rights restored; liabilities unaffected,
§ 1224(p).
Pending litigation not affected, § 1224 (r).
Resolution providing for severance; account-
ing, § 1224(k).
Stockholders' meeting; notice; ratification of
resolution, § 1224(1).
Taxation.
Board of assessment to keep records, § 7971-
(180).
Foreign corporations not exempt, § 7971(203).
COSTS.
Civil county courts, § 1608(zzzz).
Executors and administrators.
Discovery of assets, § 65(d).
Extradition, § 4556(24).
COUNTIES AND COUNTY COMMISSION-
. ERS.
Buildings.
Special building fund to aid in erection of
schoolhouses, § 7472(yyl).
Constitution of North Carolina.
Debts in aid of the rebellion not to be paid,
Appx. I, const, art. VII, § 12.
When officers enter upon duty, Appx. I,
const, art. VII, § 9.
County property.
Reconveyance of property donated to county,
etc., for specific purpose, § 1291(b).
574
INDEX
COUNTIES AND COUNTY COMMISSION-
ERS—Cont'd.
Electrical inspectors.
County electrical inspectors, § 2744(a).
Motor vehicles.
Drivers of state, county and city vehicles sub-
ject to provisions of this article, § 2621(315).
Powers of local authorities, § 2621(316).
Powers.
Reconveyance of property donated to county,
etc., for specific purpose, § 1291(b).
Prisons and prisoners.
Use of county prisoners in maintaining roads,
not within state system, § 1364(1).
Special building fund to aid in erection of school-
houses.
Payment of loans before maturity; relending,
§ 7472(yyl).
Taxation.
Intangible personal property tax.
Separate record by counties; reports to state
board of assessment; distribution to coun-
ties and cities, § 7880(156)ddd.
CRIMINAL EAW.
Child labor.
Penalties, § 5038(20).
Dry cleaners.
Violation punishable as misdemeanor, §
5382(7).
Forest fires.
Starting fires within fire hundred feet of areas
under protection of state forest service, §
4311(a).
Gasoline and oil inspection.
Prosecution of offenders, § 4870(jj).
Violation a misdemeanor, § 4870 (kk).
Infants.
Tattooing, § 4511(h).
Intoxicating liquors.
Violations by member or employee of boards,
cause for removal and punishable as misde-
meanor, § 3411(87).
Motor vehicles.
Duties and powers of law enforcement officers,
§ 2621(328).
Penalty for bad check, § 2621(324).
Penalty for driving while under the influence
of intoxicating liquor or narcotic drugs, §
2621(325).
Penalty for failure to stop in event of accident
involving injury or death to a person, §
2621(327).
Penalty for felony, § 2621(323).
Penalty for misdemeanor, § 2621(322).
Penalty for reckless driving, § 2621(326).
Peal estate brokers and salesmen, § 7312(oo).
Tattooing.
Tattooing prohibited, § 4511(h).
Tobacco.
Courts may punish or enjoin violations, §
4930(16).
Violation a misdemeanor, § 4930(14).
Violation punishable 'by forfeiture of sum
equal to three times value of tobacco, §
4930(12).
Unemployment compensation, § 8052(16).
CRIMINAL PROCEDURE.
State bureau of identification and investigation,
§§ 7534(9)-7534(18), see "State Bureau of
Identification and Investigation."
Tobacco.
Attorneys for state to institute proceedings,
etc.; commission to report violations to
solicitors, etc., § 4930(17).
CRIMINOLOGISTS.
State bureau of identification and investigation,
§§ 7534(9)-7534(18), see "State Bureau of
Identification and Investigation."
CROSSINGS.
Motor vehicles.
Keep to the right in crossing intersections or
railroads, § 2621(294).
Railroad warning signals must be obeyed, §
2621(289).
Vehicles must stop at certain railway grade
crossings, § 2621(290).
DEAF, DUMB AND BLIND.
Assistance for the blind.
Administration, § 5126(13).
Cost of administration by federal govern-
ment, § 5126(25).
Amount of assistance, § 5126(17).
Application for benefits, § 5126(14).
Transmitted to commission, § 5126(16).
When applications for relief made directly
to state commission, § 5126(19).
Appropriation.
Appropriations by state, § 5126(25).
Awards.
Subject to reopening upon change in condi-
tion, § 5126(20).
Beneficiaries not deemed paupers, § 5126(22).
Change in condition.
Awards subject to reopening, § 5126(20).
Disqualifications for relief, § 5126(21).
Eligibility for relief, § 5126(15).
Federal government.
Cooperation with social security board, §
5126(24).
Grants from federal government, § 5126(24).
Termination of federal aid, § 5126(26).
Fraud and deceit.
Misrepresentation or fraud in obtaining as-
sistance, § 5126(23).
Investigation and award by county commis-
sioners, § 5126(14).
Notice of award, § 5126(16).
Objective standards for personnel, § 5126(13).
Payment of assistance, § 5126(17).
Payment of awards, § 5126(18).
Review by commission, § 5126(16).
Rules and regulations, § 5126(13).
Source of funds, § 5126(17).
Commission for the blind.
Additional members, § 5126(la).
Additional powers and duties, § 5126(12).
Assistance for the blind, see within this title,
"Assistance for the Blind."
Meeting place, § 5126(la).
DEALERS.
Tobacco dealers.
Restrictions upon dealers, § 4930(11).
INDEX
[375
DEEDS.
Probate and registration.
Copies of deeds made by alien property cus-
todian, § 3319(b).
DEPOSITORIES.
Wills.
Depository for wills, § 4138(a).
DISCOVERY.
Discovery of assets, §§ 65(b)-65(e), see "Exec-
utors and Administrators."
DIVORCE AND AEIMONY.
Names.
Adoptions of name of prior deceased husband
validated, § 1663(1).
Resumption of maiden name on divorce, §
1663(1). •
DOMESTIC SERVANTS.
Health.
Annual examinations, § 7220(h).
Domestic servants required to furnish health
certificate, § 7220(g).
DRUGS AND DRUGGISTS.
Assistant pharmacists.
When issued, § 6659(b).
Examinations.
Assistant pharmacists, § 6659(h).
Motor vehicles.
Penalty for driving while under the influence
of intoxicating liquor or narcotic drugs, §
2621(325).
Persons operating vehicle under influence of
narcotic drug, § 2621(286).
Substitution of drugs, § 6670(b).
DRUNKENNESS.
Motor vehicles.
Motor vehicle law of 1937, § 2621(286).
DRY CLEANERS.
Commission.
Creation, § 5382(2).
Functions, duties and powers, § 5382(3).
Members, § 5382(2).
Organization, § 5382(2).
Personnel, § 5382(2).
Terms and compensation, § 5382(2).
Criminal law.
Violation punishable as misdemeanor, §
5382(7).
Definitions, § 5382(1).
Funds.
Collected, § 5382(6).
Licenses, § 7880(70).
Fees, § 5382(5).
Issued annually, § 5382(5).
Necessity, § 5382(5).
Persons, firms, etc., entitled to, § 5382(4).
State license fee not affected, § 5382(8).
DYEING BUSINESS, §§ 5382(l)-5382(8), see
"Dry Cleaners."
EASTERN CAROLINA INDUSTRIAL
TRAINING SCHOOL FOR BOYS.
Citizenship restored, §§ 390(1), 390(2).
EDUCATION.
Bonds.
Debt statement, § 56§4(sl).
Issuance of bonds by cities and towns, §
5694(sl).
Tax levy for repayment, § 5694(sl).
Commercial education.
Solicitors, § 5780(ml0).
Commission to examine system.
Governor directed to appoint commission;
powers and duties, § 7534(cc).
Governor, ex officio chairman; public hear-
ings; co-operation of state departments;
services of educational authorities, § 7534-
(dd).
Payment of expenses, § 7534(ee).
Written report to general assembly, § 7534(ff).
Illiterates.
Annual appropriation, § 5451(a).
Program of adult education, § 5451(a).
Indian day, § 7640(a).
Sale of school property.
Rejection of bids at public sales; private sale,
§ 5470(b).
School bus.
Standard qualifications for drivers, § 2618(d).
School law of 1937.
Administration of funds for eight months'
term, § 5780(86).
Administrative officers, § 5780(90).
Advisory boards, § 5780(91).
Appropriation.
Biennial appropriation for eight months'
school term, § 5780(84).
Re-allocation of appropriation not used, §
5780(87).
Audit, § 5780(110).
Average attendance, § 5780(87).
Bonds.
Bonds for protection of school funds, §
5780(107).
Budgets.
Local budgets, § 5780(103).
Operating budgets, § 5780(106).
State budgets estimate, § 5780(96).
Buildings.
Use for other purposes, § 5780(94).
City administrative units, § 5780(89).
Commission.
Appointment, § 5780(85).
Cost and expenses, § 5780(85).
Executive secretary, § 5780(85).
Membership, § 5780(85).
Powers and duties, § 5780(85).
Terms of office and compensation, § 5780-
(85).
Consolidation of units, § 5780(89).
Costs.
Lien of taxes for operating, § 5780(105).
Salary costs, § 5780(97).
Counties as administrative units, § 5780(89).
Debts.
District bonded debts unaffected by divi-
sions or consolidations; designation of dis-
tricts, § 5780(104).
District committees, § 5780(91).
Economies.
Effecting economies, § 5780(94).
Employees.
Selection, § 5780(90).
376]
INDEX
EDUCATION— Cont'd.
School law of 1937 — Cont'd.
Expenditures.
Items of school expenditures, § 5780(93).
Fixed charges.
Expenditures, § 5780(95).
Funds.
Accounting as to special funds, § 5780-
(121).
Disbursement of state funds, § 5780(108).
Diversion made misdemeanor, § 5780(121).
Method of disbursing school funds, § 5780-
(109).
Eocal supplements, § 5780(102).
iLunch rooms in schools, § 5780(120).
Maintenance of plant.
Expenditures, § 5780(95).
Minimum number of pupils, § 5780(89).
Opening dates, § 5780(87).
Principals, § 5780(90).
Principals allowed, § 5780(101).
Pupils.
Age requirement for enrollment in public
schools, § 5780(112).
Purchase of equipment and supplies, §
5780(113).
Purchase of new equipment, § 5780(116).
Salaries.
Salary costs, § 5780(97).
Standard schedule to be fixed, § 5780(98).
School month denned, § 5780(88).
Summer schools..
Summer school requirement suspended, §
5780(98).
Superintendent, § 5780(90).
Supervision of district organization, § 5780-
(89).
Taxation, § 5780(105).
Teachers.
Increase or decrease in salary, § 5780(94).
Lien of unpaid teachers' vouchers, § 5780-
(105).
No rule as to marriage enforced, § 5780-
(100).
Notification as to election or rejection, §
5780(99).
Organization statement and allotment of
teachers, § 5780(92).
Salaries, § 5780(88).
Payable monthly, § 5780(88).
Selection, § 5780(90).
Sick leave, § 5780(111).
Workmen's, compensation, § 5780(111).
Terms of school, § 5780(87).
Transportation.
Bus drivers, § 5780(117).
Bus routes, § 5780(115).
Contract transportation, § 5780(118).
Co-operation with highway and public
works commission in maintenance of
equipment, § 5780(119).
School transportation, § 5780(114).
Workmen's compensation, § 5780(111).
Textbook commission.
Article supplemental; conflicting provisions
repealed, § 5754(12).
Bond issue authorized, § 5754(13).
Bonds and coupons exempt from taxation;
authorized investment for fiduciaries, etc.,
§ 5754(15).
EDUCATION— Cont'd.
Textbook commission — Cont'd.
Coupon bonds; denominations; dates and
rate of interest; maturity, etc., § 5754(14).
Creation, § 5754(7).
Duties, § 5754(8).
Duties and authority of superintendents of
local administrative units; withholding sal-
ary for failure to comply with section, §
5754(10).
Full faith and credit of state pledged for pay-
ment, § 5754(16).
Further funds made available, § 5754(11).
Legal custodians of books furnished by state,
§ 5754(9).
Supersedes textbook purchase and rental
commission, § 5754(7).
World war orphans.
Approval and payment of amounts charged
by institution, § 5912(n).
Free tuition, room rent and board; certifi-
cate of post commander; statement from
veterans administration, § 5912(m).
ELECTIONS.
Intoxicating liquors.
Counties now operating stores, § 3411(90).
County elections as to liquor control stores;
application of Turlington Act; time of elec-
tions, § 3411(89).
Pinehurst and Southern Pines stores trans-
ferred to Moore county board, § 3411(90).
Stores closed, § 3411(76).
State bureau of identification and investigation-
Investigation of election frauds, § 7534(14).
ELECTRICITY.
Contractors, §§ 5168(ppp)-5168(bbbb), see
"Contractors."
Electrical contractors, §§ 5168(ppp)-5168(bbbb),
see "Contractors."
ELECTRIC, TELEGRAPH, TELEPHONE
AND POWER COMPANIES.
Taxation, § 7971(186).
EMINENT DOMAIN.
Pipe line companies.
Right of eminent domain conferred upon
pipe line companies; other rights, § 3542(d).
EVIDENCE.
Child labor.
Employment certificate, § 5038(13).
EXECUTORS AND ADMINISTRATORS.
Appeals.
Discovery of assets, § 65(c).
Assets.
Discovery of assets, see within this title, "Dis-
covery of Assets."
Costs.
Discovery of assets, § 65(d).
Discovery of assets.
Costs, § 65(d).
Examination of persons or corporations be-
lieved to have possession of property of de-
cedent, § -65(b).
Remedies supplemental, § 65(e).
Right of appeal, § 65(c).
INDEX
[ 377
EXECUTORS AND ADMINISTRATORS —
Cont'd.
Taxation.
Access to safe deposits of a decedent, §
7880(21).
Funds held by, § 7880(156)s-s.
EXPLOSIONS AND EXPLOSIVES.
Motor vehicles.
Vehicles transporting explosives, § 2621(314).
EXPRESS COMPANIES.
Taxation, § 7971(183).
EXTRADITION.
Application for issuance of requisition, §
4556(23).
Arrest.
Prior to requisition, § 4556(13).
Without warrant, § 4556(14).
Authority of arresting officer, § 4556(9).
Bail.
Bail in certain cases; conditions of bond, §
4556(16).
Forfeiture, § 4556(18).
Commitment.
Adjournment, § 4556(17).
Extension of time, § 4556(17).
To await requisition, § 4556(15).
Confinement in jail when necessary, § 4556(12).
Costs, § 4556(24).
Definitions, § 4556(1).
Demand for extradition.
Form, § 4556(3).
Expenses, § 4556(24).
Forms.
Demand, § 4556(3).
Fugitives from this state, § 4556(22).
Governor.
Duty as to fugitives from other states, §
4556(2).
May cause investigation to be made, § 4556(4).
Warrant of arrest, see within this title, "War-
rant of Arrest."
Guilt or innocence of accused, when inquired in-
to, § 4556(20).
Habeas corpus.
Application for writ, §§ 4556(10), 4556(11).
Immunity.
No immunity from other criminal prosecu-
tion, § 4556(28).
Interpretation, § 4556(29).
Investigation.
Governor may cause investigation, § 4556(4).
Persons imprisoned in another state who have
left demanding state under compulsion, §
4556(5).
Persons not present in demanding state at time
of commission of crime, § 4556(6).
Persons under criminal prosecution in this state
at time of requisition, § 4556(19).
Right of asylum.
No right of asylum, § 4556(28).
Rights of accused person, §§ 4556(10), 4556(11).
Service of process.
Immunity from service of process in certain
civil actions, § 4556(25).
Short title, § 4556(30).
Waiver.
Non-waiver by this state, § 4556(27).
Written waiver of extradition proceedings, §
4556(26).
EXTRADITION— Cont'd.
Warrant of arrest.
Arrest without a warrant, § 4556(14).
Issuance, § 4556(7).
Issue of alias, § 4556(21).
Manner and place of execution of warrant, §
4556(8).
Recall by governor, § 4556(21).
Recital, § 4556(7).
FEES.
Civil county courts, § 1608 (zzzz).
Corporations.
Secretary of state not to file corporate papers
until fees paid, § 1218.
Solicitors.
Appropriation for expenses, § 3890(a).
Taxation.
Compensation of officer computing taxes, §
7971(159).
FERRIES.
Taxation, § 7971(186).
FIDUCIARIES.
Taxation.
Funds held by fiduciaries, § 7880(156) ss.
FINGER PRINTS.
State bureau of identification and investigation,
§ 7534(10).
FOREST FIRES.
Criminal law.
Starting fires within five hundred feet of areas
under protection of state forest service, §
4311(a).
FRAUD.
Aid to dependent children.
Fraudulent acts made misdemeanor, § 5018-
(56).
Old age assistance.
Fraudulent acts made misdemeanor, § 5018-
(27).
State bureau of identification and investigation.
Investigation of elections, § 7534(14).
FREIGHT-CAR COMPANIES.
Taxation, § 7971(185).
FUGITIVES FROM JUSTICE.
Extradition, §§ 4556(l)-4556(30), see "Extradi-
tion."
GAME LAWS.
Criminal law.
Minimum penalty for violating game and in-
land fishing laws, § 2141 (c)l.
Firearms.
Penalty for violation, § 2141(29).
Possession of firearm silencer while hunting
game, made unlawful, § 2141(28).
North Carolina game law of 1935.
Minimum penalty for violating game and in-
land fishing laws, § 2141 (c)l.
Silencer on firearms.
Penalty for violation, § 2141(29).
Possession of firearm silencer, while hunt-
ing game, made unlawful, § 2141(28).
■7S
INDEX
GAME LAWS— Cont'd.
Weapons.
Penalty for violation, § 2141(29).
Possession of firearm silencer while hunting
game, made unlawful, § 2141(28).
GAS AND GAS COMPANIES.
Taxation, § 7971(186).
GASOLINE.
Inspection, §§ 4870(o)-4870(rr), see "Gasoline
and Oil Inspection."
Taxation.
Wholesale distributors of motor fuels, §
7880(93)b.
GASOLINE AND OIL INSPECTION.
Adulteration.
Adulteration of products offered for sale, §
4870(gg).
Allotments for administration expenses, §
4870(s).
Analysis.
Charges for analysis of samples, § 4870 (qq).
Assistants, § 4870(v).
Board, see within this title, "Gasoline and Oil
Inspection Board."
Certain laws adopted as part of article, § 4870-
(PP).
Clerks, § 4870(v).
Coal tar.
Registration of exclusive industrial users of
naphthas and coal tar solvents, § 4870(oo).
Containers.
Display required on containers used in mak-
ing deliveries, § 4870(nn).
Criminal law.
Prosecution of offenders, § 4870(ji).
Violation a misdemeanor, § 4870 (kk).
Definitions.
Gasoline, § 4870 (p).
Motor fuel, § 4870(q).
Fee, § 4870(s).
Fuels used by state, § 4870 (rr).
Gasoline and oil inspection board.
Adoption of standards based on scientific
tests, § 4870(x).
Creation, § 4870(w).
Rules and regulations available to interested
parties, § 4870(aa).
Gasoline and oil inspection fund, § 4870 (t).
Inspectors, § 4870(v).
Powers and authority, § 4870 (dd).
Kerosene.
Inspection, § 4870(r).
Labels.
Sale of gasoline not meeting standard on
label, § 4870 (y).
Sales from pumps not labeled, § 4870 (y).
Laboratory for analysis of inspected products,
§ 4870 (bb).
Measuring equipment.
Investigation and inspection, § 4870 (ee).
Naphtha.
Registration of exclusive industrial users of
naphthas and coal tar solvents, § 4870 (oo).
Official tests.
Certified copies of official tests admissible in
evidence, § 4870(hh).
GASOLINE AND OIL INSPECTION— Cont'd.
Petroleum products.
Inspection, § 4870(r).
Pumps.
Display of grade rating, § 4870(y).
Sales from pumps not labeled, § 4870 (y).
Report of operation and expenses to general
assembly. § 4870(u).
Retailers.
Required to keep copies of invoices and de-
livery tickets, § 4870(h).
Responsibility of retailers for quality of
products, § 4870 (ff).
Samples, § 4870(cc).
Substitutes.
Regulations for sale of substitutes, § 4870 (z).
Supervision of motor vehicle bureau, § 4870 (t).
Title of article, § 4870(o).
Transportation.
Persons engaged in transporting are subject
to inspection laws, § 4870(11).
Persons transporting must have invoice, bill
of sale or bill of lading, § 4870 (mm).
Weights and measures.
Devices calculated to falsify, § 4870(ee).
GENERAL ASSEMBLY.
Committees.
Committee on interstate co-operation, §§
7534(19)-7534(29), see "Commission on In-
terstate Co'-Operation."
State officers, etc., to furnish data and in-
formation, § 6104(a).
GEOLOGICAL SURVEY AND FORESTS.
Advertising of state resources and advantages,
§ 6122(j)l.
GIFTS.
Taxation, § 7880 (156) ee.
Application to department of revenue for
correction of assessment, § 7880(156)hh.
Assessment upon actual value of property, §
7880(156)11.
Assessment upon failure or refusal to file
proper returns, § 7880(156)kk.
Classification of beneficiaries, § 7880(156)ee.
Collection, § 78-80(15©) jj.
Exemptions, § 7880(156) ee.
Gifts made in property, § 7880(156)gg.
Interest, § 7880(156)ii.
Lien for tax; collection of tax, § 7880(156) jj.
Limitation upon assessment, § 78<80(l56)kk.
Manner of determining tax, § 7880(156)hh.
Manner of determining value of annuities, life
estates and interests less than absolute in-
terest, § 7880(156)11.
Penalties, § 7880(156) ii.
Rates of tax, § 7880(156)ee.
Returns.
Extension of time of filing, § 7880(156)nn.
Time of filing, § 7880(156)nn.
Time of payment, § 7880(156)hh.
Transfer for less than adequate and full con-
sideration, § 7880(156)ff.
GOVERNOR.
Compensation for widows of governors, §
7651(a).
INDEX
[ 379
GOVERNOR— Cont'd.
Indian day.
To designate "Indian Day," § 7640(a).
HABEAS CORPUS.
Extradition.
Application for writ, §§ 4556(10), 4556(11).
HEALTH.
Abattoirs, §§ 7251 (w) 6-7251 (w) 9, see "Meat
Markets and Abattoirs."
Domestic servants.
Annual examinations, § 7220(h).
Domestic servants required to furnish health
certificate, § 7220(g).
Manufacture, etc., of bedding.
Altering, etc., of tags prohibited, § 7251 (hh) 28.
Blind persons exempt, § 7251(hh)35.
Definitions, § 7251(hh)25.
Enforcement by state board of health, § 7251-
(hh)30.
Enforcement funds, § 7251(hh)29.
Information to be stamped on tags, § 7251-
(hh)27.
Issue of warrants, § 7251 (hh) 33.
Licenses, § 7251(hh)31.
Manufacture regulated, § 7251(hh)27.
Penalty, § 7251 (hh) 34.
Repeal of law no bar to prosecution of viola-
tors, § 7251 (hh) 36.
Sale.
Possession prima facie evidence of intent to
sell, § 7251(hh)25.
Sterilization, § 7251(hh)26.
Tagging for renovation, § 7251(hh)26.
Unit of offense, § 7251(hh)32.
Use of "sweeps" or "oily sweeps," § 7251-
(hh)27.
Master and servant.
Annual examinations, § 7220(h).
Domestic servants required to furnish health
certificate, § 7220(g).
IDENTIFICATION.
State bureau of identification and investigation,
§§ 7534(9)-7534(18), see "State Bureau of
Identification and Investigation."
INCOME.
Uniform principal and income act, §§ 4035(1)-
4035(15), see "Uniform Principal and Income
Act."
INFANTS.
Criminal law.
Tattooing, § 4511(h).
Insurance.
Payment to public guardian or clerk of supe-
rior court, § 961(a).
Intoxicating liquors.
Sales to minors, § 3411(75).
Tattooing.
Tattooing prohibited, § 4511(h).
INJUNCTIONS.
Tobacco, § 4930(16).
INSANE PERSONS AND INCOMPETENTS.
Sterilization of persons mentally defective, §
2304(ff2).
INSPECTION.
Seeds.
Seizure and condemnation authorized, upon
violation, § 4831(1).
INSURANCE.
Assessment companies.
Mutual burial or assessment insurance asso-
ciations, see within this title, "Mutual Burial
or Assessment Insurance Associations."
Burial insurance, see within this title, "Mutual
Burial or Assessment Insurance Associations."
Conversion of stock corporations into mutual
corporations.
Authorized to convert, § 6355(1).
Dividends repaid to corporation for beneficia-
ries, § 6355(2).
Procedure, § 6355(1).
Stock to be turned over to voting trust until
all stock acquired, § 6355(2).
Infants.
Payment to public guardian or clerk of supe-
rior court, § 961(a).
Licenses.
Corporation or association maintaining office
in state required to qualify and secure li-
cense, § 6294(1).
Mutual burial or assessment insurance associa-
tions.
Accepting application without collecting fee,
§ 6476(hh).
Charter required, § 6476 (oo).
Law constitutes exclusive authority, § 6476-
(nn).
Loss reserve; deposit with insurance com-
missioner of securities, § 6476(11).
Penalty for failure to make proper assess-
ments, § 6476 (jj).
Penalty for failure to operate in substantial
compliance with law, § 6476 (ee).
Penalty for making false and fraudulent en-
tries, § 6476(gg).
Penalty for wrongfully inducing person to
change membership, § 6476«(ff).
Removal of secretary-treasurer for failure to
maintain proper records, § 6476 (ii).
Requirements as to rules and by-laws, § 6476-
(cc).
Right of appeal upon revocation of license,
§ 6476(kk).
Separate branches required for white and col-
ored races, § 6476 (bh).
State-wide organization of associations, §
6476(mm).
Supervision of insurance commissioner, §
6476(aa).
Unlawful to operate without written author-
ity of insurance commissioner, § 6476(dd).
Mutual insurance.
Conversion of stock corporations into mutual
corporations, see within this title, "Conver-
sion of Stock Corporations into Mutual Cor-
porations."
Payment into court.
Payment of sum due minor insurance benefi-
ciary, § 961(a).
;so
INDEX
INSURANCE— Cont'd.
Stock and stockholders.
Conversion of stock corporations into mutual
corporations, see within this title, "Conver-
sion of Stock Corporations into Mutual Cor-
porations."
Taxation.
Matured insurance policies, § 7&80(l56)ss.
INTERSTATE CO-OPERATION, §§ 7534(19)-
7534(29), see "Commission on Interstate Co-
operation."
INTOXICATING LIQUORS.
Advertisements.
Additional regulations as to advertising, §
3411(83).
Advertising alcoholic beverages prohibited, §
3411 081).
Advertising by radio broadcasts prohibited, §
3411(82).
Advertising of intoxicating liquors prohibited,
§ 3411(37)a.
Beverage control act of 1937.
Additional tax, § 3411(109).
Administrative provisions, § 3411(116).
Appropriation for administration, § 3411(117).
Bottler's license, § 3411(97).
Conflicting laws repealed, § 3411(119).
Definitions, § 3411(93).
Effective date, § 3411(120).
Issuance of license mandatory, § 3411(105).
Licenses.
Amount of retail license tax, § 3411(102).
Books, records, reports, § 3411(113).
Bottler's license, § 3411(97).
Character of license, § 3411(101).
Forfeiture, § 3411(118).
License shall be posted, § 3411(115).
No license for sales upon school property,
§ 3411(114).
Non-resident manufacturers and wholesale
dealers to be licensed, § 3411(110)a.
Retail license issued for sale of wines, §
3411(10l)a.
Revocation, § 3411(106).
Salesman's license, § 3411(100).
State license, § 3411(107).
To sell wine at retail, § 3411(108).
Wholesaler's license, § 3411(98).
Who may sell at retail, § 3411(103).
Manufacture, § 3411(96).
Regulations, § 3411(94).
Sales, §§ 3411(103), 3411(104).
During religious services, § 3411(105).
Taxation.
Payment of tax by retailers, § 3411(111).
Tax on spirituous liquors, § 3411(112).
Tax payable by wholesale distributors, § 3411-
(110).
Title, § 3411(92).
Transportation, § 3411(95).
Violation made misdemeanor; revocation of
permits; forfeitures of license, § 3411(118).
Board of control.
Appointment by governor, § 3411(67).
Compensation, § 3411(66).
County boards of control, see within this title
"County Boards of Control."
INTOXICATING LIQUORS— Cont'd.
Board of control — Cont'd.
Creation, § 3411(66).
Disqualification from membership, § 3411(72).
Membership, § 3411(66).
Powers and authority, § 3411(68).
Removal of member by governor, § 3411(69).
Terms of office, § 3411(67).
Vacancy appointments, § 3411(69).
County boards of control.
Bonds, § 3411(73).
Compensation, § 3411(71).
Creation, § 3411(70).
Disqualification from membership, § 3411(72).
Drinking upon premises prohibited; stores
closed on Sundays, election days, etc., §
3411(76).
Habitual drunkards, § 3411(75).
Hours of sale, § 3411(75).
List of persons convicted of drunkenness, §
3411(75).
Powers and duties of county boards, § 3411-
(74).
Sales to minors, § 3411(75).
Criminal law.
Violations by member or employee of boards,
cause for removal and punishable as mis-
demeanor, § 3411(87).
Definitions.
"Alcoholic beverages," defined, § 3411(88).
Drinking.
Drinking or offering drinks on premises of
stores, § 3411(80).
Drinking upon premises prohibited, § 3411-
(7<6).
Drunkenness.
Sales to habitual drunkards, § 3411(75).
Elections.
Counties now operating stores, § 3411(90).
County elections as to liquor control stores;
application of Turlington Act; time of elec-
tions, § 3411(89).
Pinehurst and Southern Pines stores trans-
ferred to Moore county board, § 3411(90).
Stores closed, § 3411(76).
Hours of sale, § 3411(75).
Infants.
Sales to minors, § 3411(75).
License.
Amount of retail license tax, § 3411(102).
Books, records, reports, § 3411(113).
Bottler's license, § 3411(97).
Character of license, § 3411(101).
Forfeiture, § 3411(118).
Issuance of license mandatory, § 3411(105).
License shall be posted, § 3411(115).
No license for sales upon school property, §
3411(114).
Non-resident manufacturers and wholesale
dealers to be licensed, § 3411(110)a.
Retail license issued for sale of wines, § 3411-
(101)a.
Revocation, § 3411(106).
Salesman's license, § 3411(100).
State license, § 3411(107).
To sell wine at retail, § 3411(108).
Wholesaler's license, § 3411(98).
List of persons convicted of drunkenness, §
3411(75).
INDEX
[ 381
INTOXICATING LIQUORS— Cont'd.
Manufacture.
Beverage control act of 1937, § 3411(96).
Motor vehicles.
Penalty for driving while under the influence
of intoxicating liquor or narcotic drugs, §
2621(385).
Net profits to be paid into general fund of the
various counties, § 3411(85).
Non-residents.
Non-resident manufacturers and wholesale
dealers to be licensed, § 3411(110)a.
Public places.
Drinking or offering drinks on premises of
stores, § 3411(80).
Purposes of article, § 3411(65).
Railroads.
Sales on railroad trains, § 3411(99).
Repeal of law, § 3411(91).
Salaries and expenses.
Salaries and expenses paid from proceeds of
sales, § 3411(84).
Sales.
County license to sell at retail, § 3411(104).
During religious services, § 3411(105).
On railroad trains, § 3411(99).
Possession for sale of illicit liquors, § 3411(79).
Sales of illicit liquors, § 3411(79).
Sales of liquors purchased from stores, § 3411-
(79).
Who may sell at retail, § 3411(103).
Sundays and holidays.
Stores closed, § 3411(76).
Taxation.
Additional tax, § 3411(109).
Payment of tax by retailers, § 3411(111).
Possession illegal if taxes not paid, § 3411(77).
Possession in container without proper stamp,
prima facie evidence, § 3411(77).
Tax on spirituous liquors, § 3411(112).
Tax payable by wholesale distributors, § 3411-
(110).
Transportation.
Beverage control act of 1937, § 3411(95).
In course of delivery to stores, § 3411(78).
Not in excess of one gallon authorized, § 3411-
(78).
Transportation into state; and purchases,
other than from stores, prohibited, § 3411-
(86).
Wines.
Manufacture, sale, transportation and impor-
tation of wines legalized; adoption of federal
regulations, § 3411(121).
Retail license issued for sale of wines, § 3411-
(101)a.
State license to sell wine at retail, § 3411(108).
INVESTIGATIONS.
State bureau of identification and investigation,
§§ 7534(9)-7534(18), see "State Bureau of
Identification and Investigation."
JOINT TENANTS AND TENANTS IN COM-
MON.
Banks and banking.
Access to safe deposits of a decedent, § 7880-
(21).
JUDGMENT.
Bankruptcy and insolvency.
Cancellation of judgments discharged through
bankruptcy proceedings, § 622(a).
Cancellation.
Judgments discharged through bankruptcy
proceedings, § 622(a).
Civil county courts.
Enforcement, § 1608(xxxx).
Vacation.
Confirmation of judicial sales, § 598.
JUDICIAL SALES.
Confirmation in vacation, § 59S.
JURISDICTION.
Civil county courts.
Under Acts of 1937, § 1608(qqqq).
JURY.
Civil county courts, § 1608(hhhh) et seq., see
"Civil County Courts."
JUSTICES OF THE PEACE.
Appeals.
Civil county courts, § 1608 (rrrr).
Civil county courts.
Appeals from justice of the peace, § 1608 (rrrr).
Removal of cause before justice of peace, §
1608((ssss).
Constitution of North Carolina.
Governor to appoint justices, Appx. I, const,
art. VII, § 10.
LABOR.
Hours of labor.
Maximum hour law, §§ 6564(l)-6564(ll), see
within this title, "Maximum Hour Law."
Maximum hour law.
Criminal law.
Intimidating witnesses, § 6564(11).
Penalties, § 6564(10).
Violation a misdemeanor, § 6564(9).
Declaration of policy, § 6564(2).
Definitions, § 6564(4).
Enactment under police power, § 6564(2).
Enforcement by commissioner of labor, §
6564(7).
Interference with enforcement prohibited, §
6564(8).
Exceptions, § 6564(3).
Intimidating witnesses, § 6564(11).
Limitations of hours, § 6564(3).
Posting law, § 6564(5).
Records kept by employers, § 6564(6).
Title, § 6564(1).
Unemployment compensation, §§ 8052(l)-8052-
(20), see "Unemployment Compensation."
LANDLORD AND TENANT.
Uniform principal and income act, §§ 4035(1)-
4035(15), see "Uniform Principal and Income
Act."
LARCENY.
Bottles.
Destruction or taking of soft drink bottles, §
4265(a).
Soft drinks.
Destruction or taking of soft drink bottles, §
4265(a).
383
INDEX
LIBRARIES.
Library commission.
Acceptance and administration of funds from
federal government and other agencies, §
6604(a).
LICENSES.
Brokers.
Real estate brokers and salesmen, §§ 7312(cc)-
7312(rr), see ''Real Estate Brokers and
Salesmen."
Cleaners, §§ 5382(l)-5382(8), see "Dry Clean-
ers."
Cleaning, § 7880(70).
Dry cleaners, §§ 5382(l)-5382(8), see "Dry
Cleaners."
Dry cleaning, § 7880(70).
Electrical contractors, §§, 5168(ppp)-5168(bbbb),
see "Contractors."
Insurance.
Corporation or association maintaining office
in state required to qualify and secure li-
cense, § 6294(1).
Intoxicating liquors.
Amount of retail license tax, § 3411(102).
Books, records, reports, § 3411(113).
Bottler's license, § 3411(97).
Character of license, §, 3411(101).
Forfeiture, § 3411(118).
Issuance of license mandatory, § 3411(105).
License shall be posted, § 3411(115).
No license for sales upon school property, §-
3411(114).
Non-resident manufacturers and wholesale
dealers to be licensed, § 3411(110)a.
Retail license issued for sale of wines, § 3411-
(101) a. .
Salesman's license, § 3411(100).
State license, § 3411(107).
To sell wine at retail, § 3411(108).
Wholesaler's license, § 3411 (9i8).
Merchandising machines, § 788O(60)a.
Motor fuels.
Wholesale distributors, § 7880 (93) b.
Osteopathy.
Restoration of revoked license, § 6708(b).
Revocation or suspension of license, § 6708(a).
Pressing business, §§ 5382(l)-5382(8), see "Dry
Cleaners."
Real estate brokers and salesmen, §§ 7312(cc)-
7312 (rr), see "Real Estate Brokers and Sales-
men."
Slot machines, § 7880(60)a.
Issuance of license prohibited, § 4437(u).
Tile contractors, §§ 5168(eee)-5168(ooo), see
"Contractors."
Tourist camps, § 7880 (57) a.
Vending machines, § 788O(60)a.
LIFE ESTATE.
Taxation.
Gift tax, § 7880(156)11.
LIMESTONE AND MARL.
Tonnage tax levied on sale of agricultural lime
and land plaster, § 4723(a).
LIVESTOCK.
Agriculture.
Commissioner to establish regulations for
transportation, § 4677(a).
LYNCHING.
State bureau of identification and investigation.
Investigation, § 7534(14).
MARKETING ASSOCIATIONS.
Taxation.
Lists, § 7971(149).
MARKETS.
Meat markets and abattoirs, §§ 7251 (w) 6-7251-
(w)9, see "Meat Markets and Abattoirs."
MASTER AND SERVANT.
Health.
Annual examinations, § 7220(h).
Domestic servants required to furnish health
certificate, § 7220(g).
Unemployment compensation, § 8052(1) -8052-
(20), see "Unemployment Compensation."
MAXIMUM HOUR LAW, §§ 6564(1)-6564(11),
see "Labor."
MEAT MARKETS AND ABATTOIRS.
Repealing clause, § 7251(w)9.
Sanitation and rating of places selling fresh
meats, § 7251(w)6.
Violation a misdemeanor, § 7251 (w) 8.
When inspectors required to file reports with
local health officer,' § 7251 (w) 7.
MILITIA.
Unorganized militia.
Promotion of marksmanship, § 6863(a).
MONEY.
Taxation.
Money on hand, § 7880(156)qq.
MORRISON TRAINING SCHOOL FOR NE-
GRO BOYS.
Citizenship restored, §§ 390(1), 390(2).
MOTOR BUSSES.
Conferences, § 2613 (aa).
Fees, § 2613(aa).
Funds for enforcement of law, § 2613 (aa).
Title and registration fees.
Motor vehicle law of 1937, see "Motor Ve-
hicles."
MOTOR VEHICLES.
Accidents.
Duty to stop in event of accident, § 2621(313).
Penalty for failure to stop in event of acci-
dent involving injury or death to a person,
§ 2621(327).
Bad checks.
Penalty for bad check, § 2621(324).
Brakes.
Motor vehicle law of 1937, § 2621(273).
Motor vehicle left unattended; brakes to be
set and engine stopped, § 2621(310).
Bridges.
Special speed limitation on bridges, § 2621-
(291).
Certificate of title.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Used vehicles brought into state.
Titles to all used cars to be furnished upon
delivery, § 2621(332).
INDEX
[ 383
MOTOR VEHICLES— Cont'd.
Coasting prohibited, § 2621 (312).
Commissioner of revenue, see within this title,
"Motor Vehicle .Law of 1937."
Construction of vehicle.
Motor vehicle law of 1937, see within this ti-
tle, ''Motor Vehicle Law of 1937."
Counties.
Drivers of state, county and city vehicles
subject to provisions of this article, §
2621(315).
Powers of local authorities, § 2621(316).
Criminal law.
Duties and powers of law enforcement offi-
cers, § 2621(328).
Penalty for bad check, § 2621(324).
Penalty for driving while under the influence
of intoxicating liquor or narcotic drugs, §
2621(325).
Penalty for failure to stop in event of acci-
dent involving injury or death to a person,
§ 2621(327).
Penalty for felony, § 2621(323).
Penalty for misdemeanor, § 2621(322).
Penalty for reckless driving, § 2621(326).
Crossings.
Keep to the right in crossing intersections or
railroads, § 2621(294).
Railroad warning signals must be obeyed, §
2621(289).
Vehicles must stop at certain railway grade
crossings, § 2621(290).
Department of motor vehicles, see within this
title, "Motor Vehicle Law of 1937."
Driving on right side of highway, § 2621(293).
Drugs and druggists.
Penalty for driving while under the influence
of intoxicating liquor or narcotic drugs, §
2621(325).
Persons operating vehicle under influence of
narcotic drug, § 2621(286).
Drunkenness.
Motor vehicle law of 1937, § 2621(286).
Equipment of vehicle.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Explosions and explosives.
Vehicles transporting explosives, § 2621(314).
Fees.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Fire department.
Parking in front of fire hydrant, fire station
or private driveway, § 2621(309).
What to do on approach of police or fire de-
partment vehicles, § 2621(304).
Following too closely, § 2621(299).
Gasoline tax.
License for wholesale distributors of motor
fuels, § 7880(93)b.
Horns, § 2621(274).
Intersections.
Keep to the right in crossing intersections or
railroads, § 2621(294).
Turning at intersection, § 2621(300).
Intoxicating liquors..
Penalty for driving while under the influence
of intoxicating liquor or narcotic drugs, §
2621(325).
MOTOR VEHICLES— Cont'd.
Larceny.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Laws of 1937, see within this title, "Motor Ve-
hicle Law of 1937."
Liens.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Lights.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Meeting of vehicles, § 2621(295).
Militia.
National guard plates, § 2621(230).
Mirrors, § 2621(275).
Motor fuel.
Gasoline and oil inspection, §§ 4870(o)-4870-
(rr), see "Gasoline and Oil Inspection."
Motor vehicle law of 1937.
Anti-theft law.
Action by department on report of stolen
or embezzled vehicles, § 2621(254).
Altering or changing engine or other num-
bers, § 2621(259).
Injuring or tampering with vehicle, § 2621-
(257).
Receiving or transferring stolen vehicles,
§ 2621(256).
Report of stolen and recovered motor ve-
hicles, § 2621(252).
Reports by owners of stolen and recovered
vehicles, § 2621(253).
Unlawful taking of a vehicle, § 2621(255).
Vehicles without manufacturer's numbers,
§ 2621(258).
Authority and duties of commissioner and
department.
Administering and enforcing laws, § 2621-
(189).
Agents, § 2621(189).
Authority to administer oaths and cer-
tify copies of records, § 2621(192).
Authority to grant or refuse applications,
§ 2621(194).
Commissioner of revenue to perform duties
of vehicle commissioner, § 2621(188).
Department may summon witnesses and
take testimony, § 2621(197).
Distribution of synopsis of laws, § 2621-
(196).
Forms to be furnished by commissioner, §
2621(191).
Giving of notice, § 2621(198).
Offices of department, § 2621(190).
Police authority of department, § 2621(199).
Records of department, § 2621(193).
Rules and regulations, § 2621(189).
Seal, § 2621(189).
Seizure of documents and plates, § 2621-
(195).
Certain laws amended to conform with pro-
visions of article, § 2621(186).
Certificate of title.
Altering or forging certificate of title a
felony, § 2621(221).
Application for, § 2621(202).
Specially constructed, reconstructed or
foreign vehicle, § 2621(203).
Authority for refusing, § 2621(204).
;84
INDEX
MOTOR VEHICLES— Cont'd.
Motor vehicle law of 1937 — Cont'd.
Certificate of title — Cont'd.
Department to issue cards, § 2621(207).
Notice of change of address or name, §
2621(217).
Owner to secure, § 2621(200).
Release by lien holder to owner, § 2621(208).
Replacement of lost or damaged certifi-
cates, cards and plates, § 2621(218).
Sale of motor vehicles to be dismantled, §
2621(212).
Unlawful for lienor who holds certificate of
title not to surrender same when lien sat-
isfied, § 2621(209).
Definition, § 2621(187).
Duty of officer, § 2621(264).
Effective date, § 2621(330).
Issuance of special plates.
Manufacturer to give notice of sale or trans-
fer, § 2621(232).
National guard plates, § 2621(230).
Official license plates, § 2621(231).
Registration by manufacturers and dealers,
§ 2621(229).
Licenses protected, § 2621(263).
Liens.
Release by lien holder to owner, §
2621(208).
Unlawful for lienor who holds certificate
of title not to surrender same when lien
satisfied, § 2621(209).
Making false affidavit perjury, § 2621(262).
Manner of enforcement, § 2621(264).
Municipal corporations.
Vehicles owned by, § 2621(234).
Nonresidents, § 2621(233).
Operation of vehicle and rules of the road.
Coasting prohibited, § 2621(312).
Drive on right side of highway, § 2621(293).
Drivers of state, county and city vehicles
subject to provisions of this article, §
2621(315).
Driver to give way to overtaking vehicle,
§ 2621(298).
Driving on mountain highways, § 2621(311).
Driving through safety zone prohibited, §
2621(307).
Duty to stop in event of accident, § 2621-
(313).
Exceptions to the right-of-way rule, §
2621(303).
Following too closely, § 2621(299).
Keep to the right in crossing intersections
or railroads, § 2621(294).
Limitations on privilege of overtaking and
passing, § 2621(297).
Meeting of vehicles, § 2621(295).
Motor vehicle left unattended; brakes to
be set and engine stopped, § 2621(310).
Overtaking a vehicle, § 2621(296).
Parking in front of fire hydrant, fire sta-
tion or private driveway, § 2621(309).
Passing street cars, § 2621(306).
Persons under the influence of intoxicating
liquor or narcotic drugs, § 2621(286).
Powers of local authorities, § 2621(316).
Railroad warning signals must be obeyed,
§ 2621(289).
Reckless driving, § 2621(287).
MOTOR VEHICLES— Cont'd.
Motor vehicle law of 1937 — Cont'd.
Operation of vehicle and rules of the road —
Cont'd.
Right-of-way, § 2621(302).
Signals on starting, stopping or turning, §
2621(301).
Special speed limitation on bridges, §
2621(291).
Speed restrictions, § 2621(288).
Stopping on highway, § 2621(308).
This article not to interfere with rights of
owners of real property with reference
thereto, § 2621(317).
Turning at intersection, § 2621(300).
Vehicles must stop at certain railway grade
crossings, § 2621(290).
Vehicles must stop at certain through high-
ways, § 2621(305).
Vehicles transporting explosives, § 2621-
(314).
What to do on approach of police or fire
department vehicles, § 2621(304).
When speed limit not applicable, § 2621-
(292).
Owner after transfer not liable for negligent
operation, § 2621(210).
Pedestrians' rights and duties.
Crossing at other than cross-walks, §
2621(320).
Pedestrians' right-of-way at cross-walks, §
2621(319).
Pedestrians soliciting rides, § 2621(321).
Pedestrians subject to traffic control sig-
nals, § 2621(318).
Penalties.
Duties and powers of law enforcement of-
ficers, § 2621(328).
Penalty for bad check, § 2621(324).
Penalty for driving while under the influ-
ence of intoxicating liquor or narcotic
drugs, § 2621(325).
Penalty for failure to stop in event of acci-
dent involving injury or death to a person,
§ 2621(327).
Penalty for felony, § 2621(323).
Penalty for misdemeanor, § 2621(322).
Penalty for reckless driving, § 2621(326).
Perjury, § 2621(262).
Registration.
Application for, § 2621(202).
Notice of change of address or name, §
2621(217).
Renewal of registration, § 2621(216).
Specially constructed, reconstructed or
foreign vehicle, § 2621(203).
Authority for refusing, § 2621(204).
Department to issue cards, § 2621(207).
Engine.
Department authorized to assign new
engine number, § 2621(219).
Department to be notified when another
engine is installed, § 2621(220).
Examination of records and index of
stolen and recovered vehicles, § 2621(205).
Exemption from registration, § 2621(201).
Expiration, § 2621(215).
Indexes, § 2621(206).
Index of stolen and recovered vehicles.
Examination, § 2621(205).
INDEX
[385
MOTOR VEHICLES— Cont'd.
Motor vehicle law of 1937 — Cont'd.
Registration — Cont'd.
Municipal vehicles, § 2621(234).
Nonresidents, § 2621(233).
Orphanages.
Vehicles owned by, § 2621(234).
Owner after transfer not liable for negli-
gent operation, § 2621(210).
Owner dismantling or wrecking vehicle to
return evidence of registration, § 2621-
(211).
Owner to secure, § 2621(200).
Plates.
Replacement of lost or damaged certifi-
cates, cards and plates, § 2621(218).
To be furnished by department, § 2621-
(213).
Transfer, § 2621(214).
Renewal.
Application, § 2621(216).
Replacement of lost or damaged certifi-
cates, cards and plates, § 2621(218).
Sale of motor vehicles to be dismantled, §
2621(212).
Violation of registration provisions, §
2621(261).
When registration shall be rescinded, §
2621(260).
Size, weight, construction and equipment of
vehicles.
Brakes, § 2621(273).
Enforcement of provisions, § 2621(282).
Flag or light at end of load, § 2621(267).
Horns and warning devices, § 2621(274).
Eights and lighting equipment.
Acetylene lights,. § 2621(281).
Additional permissible light on vehicle, §
2621(279).
Eights on parked vehicles, § 2621(283).
Required lighting equipment of vehicles,
§ 2621(278).
Requirements as to head lamps and aux-
iliary driving lamps, § 2621(280).
Mirrors, § 2621(275).
Peace officer may weigh vehicles and re-
quire removal of excess load, § 2621(269).
Prevention of noise, smoke, etc., muffler
cut-outs regulated, § 2621(277).
Restrictions as to tire equipment, §
2621(271).
Safety glass, § 2621(284).
Scope and effect of regulations in this ti-
tle, § 2621(265).
Size of vehicles and loads, § 2621(266).
Smoke screens, § 2621(285).
Trailers and towed vehicles, § 2621(272).
Weight of vehicles and load, § 2621(268).
When authorities may restrict right to use
highways, § 2621(270).
Windshields must be unobstructed, §
2621(276).
Title and registration fees.
Bond or deposit required, § 2621(243).
Collection by duress, § 2621(249).
Due date of franchise tax, § 2621(240).
Method of computing gross revenue of fran-
chise bus carriers and haulers, § 2621-
(239).
Overloading, § 2621(246).
N. C. Supp.— 25
MOTOR VEHICLES— Cont'd.
Motor vehicle law of 1937 — Cont'd.
Title and registration fees — Cont'd.
Partial payments, § 2621(244).
Passenger vehicle registration fees, § 2621-
(237).
Penalty for engaging in a "for hire" busi-
ness without proper license plates, §
2621(236).
Property hauling vehicles, § 2621(238).
Quarterly payments, § 2621(245).
Records and reports required of franchise
carriers, § 2621(241).
Revocation of franchise registration, §
2621(242).
Schedule of fees, § 2621(235).
Taxes compensatory, § 2621(247).
Tax lien, § 2621(248).
Vehicles destroyed by fire or collision, §
2621(250).
Vehicles to be marked, § 2621(251).
Transfer of title or interest.
New owner to secure transfer of registra-
tion and new certificate of title, §
2621(223).
Penalty for failure to make application for
transfer within the time specified by law,
§ 2621(224).
Title lost or unlawfully detained, § 2621-
(226).
Transfer by operation of law, § 2621(227).
Transfer by owner, § 2621(222).
When department to transfer registration
and issue new certificate, § 2621(228).
When transferee is a dealer, § 2621(225).
Unconstitutionality or invalidity, § 2621(329).
Muffler cut-outs.
Regulated, § 2621(277).
Municipal corporations.
Drivers of state, county and city vehicles sub-
ject to provisions of this article, § 2621(315).
Powers of local authorities, § 2621(316).
Registration of vehicles owned by, § 2621-
(234).
Negotiable instruments.
Penalty for bad check, § 2621(324).
Noise.
Prevention of, § 2621(277).
Nonresidents.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Notice.
Giving notice, § 2621(198).
Numbers and number plates.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Operation of vehicles. -
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Overtaking a vehicle, § 2621(296).
Driver to give way to overtaking vehicle, §
2621(298).
Limitations on privilege of overtaking and
passing, § 2621(297).
Parking.
Lights on parked vehicles, § 2621(283).
Parking in front of fire hydrant, fire station
or private driveway, § 2621(309).
386
INDEX
MOTOR VEHICLES— Cont'd.
Passing.
Limitations on privilege of overtaking and
passing, § 2621(297).
Passing street cars, § 2621(306).
Pedestrians.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Plates, see within this title, "Motor Vehicle
Law of 1937."
Police.
Police authority of department, § 2621(199).
What to do on approach of police or fire de-
partment vehicles, § 2621(304).
Protection of title of motor vehicles.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Reckless driving.
Motor vehicle law of 1937, § 2621(287).
Penalty for reckless driving, § 2621(326).
Registration.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Used vehicles brought into state, § 2621(331).
Right-of-way, § 2621(302).
Exceptions to the right-of-way rule, § 2621-
(303).
Rules of the road.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Safety glass.
Motor vehicle law of 1937, § 2621(284).
Safety zone.
Driving through safety zone prohibited, §
2621(307).
Sales.
Used vehicles brought into state, see within
this title, "Sales of Used Motor Vehicles
Brought into State."
Sales of used motor vehicles brought into state.
"Dealers" and "vendors" defined, § 2621(334).
Dealers required to register vehicles with de-
partment of revenue and furnish bond, §
2621(331).
Non-compliance defeats right of action; vio-
lations a misdemeanor, § 2621(333).
Titles to all used cars to be furnished upon
delivery, § 2621(332).
School bus.
Standard qualifications for school bus driv-
ers, § 2618(d).
Secondhand vehicles.
Sale of used vehicles, see within this title,
"Sales of Used Motor Vehicles Brought
into State."
Signals.
Signals on starting, stopping or turning, §
2621(301).
Size.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Smoke.
Prevention of, § 2621(277).
Smoke screens, § 2621(285).
Speed.
Restrictions, § 2621(288).
Special speed limitation on bridges, § 2621-
(291).
When speed limit not applicable, § 2621(292).
MOTOR VEHICLES— Cont'd.
Starting.
Signals on starting, stopping and turning, §
2621(301).
State.
Drivers of state, county and city vehicles
subject to provisions of this article, § 2621-
(315).
Stolen vehicles.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Stopping.
Motor vehicle left unattended; brakes to be
set and engine stopped, § 2621(310).
Signals on starting, stopping or turning, §
2621(301).
Stopping on highway, § 2621(308).
Street railways.
Passing street cars, § 2621(306).
Taxation.
Emergency revenue.
Sales tax, § 7880(156)g.
Information to be given by owner applying
for license tags, § 7971(148).
Through highways.
Vehicles must stop at certain through high-
ways, § 2621(305).
Tires.
Motor vehicle law of 1937.
Restrictions as to tire equipment, § 2621-
(271).
Title.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Trailers and towed vehicles.
Motor vehicle law of 1937, § 2621(272).
Transfer.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Turning.
Signals on starting, stopping or turning, §
2621(301).
Turning at intersection, § 2621(300).
Used vehicles, see within this title, "Sales of
Used Motor Vehicles Brought into State."
Vehicle commissioner, see within this title,
"Motor Vehicle Law of 1937."
Warning.
Horns and warning devices, § 2621(274).
Weight.
Motor vehicle law of 1937, see within this ti-
tle, "Motor Vehicle Law of 1937."
Windshields.
Windshields must be unobstructed, § 2621-
< (276).
Witnesses.
Department may summon witnesses, § 2621-
(197).
Worthless checks.
Penalty for bad check, § 2621(324).
MUNICIPAL CORPORATIONS.
Buildings.
Inspection.
Electrical inspectors.
County electrical inspectors, § 2744(a).
Constitution of North Carolina.
Charters to remain in force until legally
changed, Appx. I, const, art. VII, § 11.
INDEX
[ 387
MUNICIPAL CORPORATIONS— Cont'd.
Constitution of North Carolina — Cont'd.
Debts in aid of the rebellion not to be paid,
Appx. I, const, art. VII, § 12.
Powers of general assembly over municipal
corporations, Appx. I, const, art. VII, § 13.
Electrical inspectors.
County electrical inspectors, § 2744(a).
Electricity.
Profit on certain sales of electricity by one
municipality to another, § 2835(a).
Motor vehicles.
Drivers of state, county and city vehicles sub-
ject to provisions of this article, § 2621-
(315).
Powers of local authorities, § 2621(316).
Registration of vehicles owned by, § 2621-
(234).
Municipal corporation act of 1917.
Profit on certain sales of electricity by one
municipality to another, § 2835(a).
Municipal finance act.
1937 bond validating act, § 2959(6).
Public utilities.
Profit on certain sales of electricity by one
municipality to another, § 2835(a).
Sale of electricity.
Profit on certain sales of electricity by one
municipality to another, § 2835(a).
Taxation.
Cities and towns situated in more than one
county, § 7971(167).
Clerks of cities and towns to furnish informa-
tion, § 7971(169).
Intangible personal property tax.
Separate record by counties; reports to
state board of assessment; distribution to
counties and cities, § 7880(l56)ddd.
Status of property and polls listed for taxa-
tion, § 7971(165).
Tax lists and assessment powers of cities and
towns, § 7971(166).
NAMES.
Divorce.
Adoptions of name of prior deceased husband
validated, § 1663(1).
Resumption of maiden name on divorce, §
1663(1).
Real estate brokers and salesmen, § 7312(jj).
NEGOTIABLE INSTRUMENTS.
Bad checks.
Motor vehicles, § 2621(324).
Motor vehicles.
Penalty for bad check, § 2621(324).
Taxation.
Intangible personal property tax, § 7880-
(156) tt.
Worthless checks.
Motor vehicles, § 2621(324).
NONRESIDENTS.
Intoxicating liquors.
Nonresident manufacturers and wholesale
dealers to be licensed, § 3411(110)a.
Real estate brokers and salesmen.
Nonresident brokers and salesman, § 7312-
(mm).
NONRESIDENTS— Cont'd.
Taxation.
Intangible personal property tax, § 7880-
(156)ww.
Witnesses.
Attendance of witnesses from without state,
§§ 1808(1)-1808(6), see "Witnesses."
NOTARIES.
Acknowledgments.
Notaries who are stockholders, § 3175(a).
Stock and stockholders.
Notaries who are stockholders, § 3175(a).
NOTICE.
Motor vehicles.
Giving notice, § 2621(198).
NUISANCES.
Slot machines.
Declared a public nuisance, § 4437(v).
OFFICIAL BONDS.
Highway patrol, § 323(b).
Peace officers, § 323(b).
Premiums.
Payment of premiums, § 326(a).
OILS.
Inspection.
Gasoline and oil inspection, §§ 4870(o)-4870-
(rr), see "Gasoline and Oil Inspection."
OLD AGE ASSISTANCE.
Acceptance of federal grants, § 5018(5).
Accounts and reports from county officers, §
5018(25).
Action by county commissioners, § 5018(16).
Administration expenses, § 5018(23).
Allotments.
Procedure preliminary to allotments, § 5018-
(21).
State board of allotments and appeal, §
5018(18).
Appeals.
State board of allotments and appeal, §
5018(18).
Application for assistance, § 5018(15).
Appropriation, § 5018(8).
Appropriations not to lapse, § 5018(10).
Assignments.
Assistance not assignable, § 5018(17).
Board of charities and public welfare.
Powers and duties, § 5018(13).
Changes in amount of assistance, § 5018(19).
County welfare board.
Powers and duties, § 5018(14).
Definitions, § 5018(4).
Department of charities and public welfare.
General powers and duties, § 5018(12).
Division of public assistance.
Director of public assistance, § 5018(2).
Division of public assistance created, § 5018(1).
Eligibility, § 5018(6).
Equalizing fund, § 5018(59).
Establishment of relief, § 5018(3).
Expenses.
Administration expenses, § 5018(23).
Fraud and deceit.
Fraudulent acts made misdemeanor, § 5018-
(27).
388
INDEX
OLD AGE ASSISTANCE— Cont'd.
Funds.
Allocation of funds, § 5018(22).
County fund, § 5018(9).
How provided, § 5018(61).
Custody and receipt of funds, § 5018(11).
Equalizing fund, § 5018(59).
State old age assistance fund, § 5018(7).
Transfer of state and federal funds to the
counties, § 5018(24).
Investigations, § 5018(21).
Limitations of article, § 5018(28).
Organization; appointment of agencies; employ-
ment, § 5018(60).
Pensions.
Removal from pension lists of persons eligible
for old age assistance, § 5168(kl).
Periodic reconsideration and changes in amount
of assistance, § 5018(19).
Reconsideration of amount of assistance, §
5018(19).
Removal to another county, § 5018(20).
Reports, § 5018(21).
Short title, § 5018(29).
State board.
Further powers and duties of state board, §
5018(26).
State old age assistance fund, § 5018(7).
Termination of federal aid, § 5018(62).
ORPHANS.
World war orphans.
Approval and payment of amounts charged
by institution, § 5912 (n).
Free tuition, room rent and board; certificate
of post commander; statement from veterans
administration, § 5912(m).
OSTEOPATHY.
Licenses.
Restoration of revoked license, § 6708(b).
Revocation or suspension of license, § 6708(a).
PARDON.
Parole.
Governor authorized to fix salary of commis-
sioner of paroles, § 7757(a)l.
PARTNERSHIP.
Real estate brokers and salesmen.
Licenses, § 7312(rT).
Taxation.
Liability of partners for tax, § 7971(153).
PAYMENT.
Taxation.
Penalties and discounts for non-payment, §
7971(175).
PAYMENT INTO COURT.
Insurance.
Payment of sum due minor insurance bene-
ficiary, § 961(a).
PENSIONS.
Old age assistance, §§ 5018(l)-5018(29), see
"Old Age Assistance."
Removal from pension lists of persons eligible
for old age assistance, § 5168(kl).
PENSIONS— Cont'd.
Widows.
Certain widows of Confederate soldiers placed
on class B pension roll, § 5168(jl).
PIPE LINE COMPANIES.
Eminent domain.
Right of eminent domain conferred upon pipe
line companies; other rights, § 3542(d).
PLANNING BOARDS, §§ 7534(5a)-7534(5h),
see "State Planning Board."
POLL TAXES.
Taxation.
Levy, § 7971(174).
PRESSING, §§ 5382(l)-5382(8), see "Dry Clean-
PRINCIPAL AND INCOME ACT.
Uniform principal and income act, §§ 4035(1)-
4035(15), see "Uniform Principal and Income
Act."
PRISONS AND PRISONERS.
County prisoners.
Use of county prisoners in maintaining roads,
not within state system, § 1364(1).
Probation, §§ 4665(1)-4665(13), see "Suspension
of Sentence and Probation."
Suspension of sentence, §§ 4665(l)-4665(13), see
"Suspension of Sentence and Probation."
Venereal diseases.
Treatment of infected prisoners required be-
fore release, § 7194(a).
PROBATE AND REGISTRATION.
Acknowledgment and private examination of
married woman taken by officer who was
grantor, § 3366(j6).
Aliens.
Copies of deeds made by alien property cus-
todian, § 3319(b).
Deeds.
Copies of deeds made by alien property cus-
todian, § 3319(b).
PROBATION, §§ 4665(1)-4665(13), see "Sus-
pension of Sentence and Probation."
PUBLIC ASSISTANCE.
Division of public assistance, §§ 5018(1), 5018-
(2), see "Old Age Assistance."
PUBLIC BUILDINGS AND GROUNDS.
Board of public buildings.
Board given supervision of location, place and
construction, § 7039(bl).
PUBLIC OFFICERS.
Identification cards for field agents or deputies
of state departments, § 3207(a).
Receiving compensation of subordinates for ap-
pointment or retention; removal, § 3202(1).
PUBLIC SERVICE CORPORATIONS.
Public utilities act of 1933.
Transportation advisory commission abolished;
powers and duties transferred to utilities
commission, § 1112(fl).
INDEX
[ 389
PUBLIC SERVICE CORPORATIONS —
Cont'd.
Taxation, §§ 7971(181)-797l(202).
Appraisers for public utilities, § 7971(193).
Certification of apportionment of valuations
to counties and municipalities, § 7971(201).
Companies failing to pay tax, § 7971(192).
Manner of assessment, § 7971(189).
Payment of local taxes, § 7971(201).
Returns to state board, § 7971(194).
State board may require additional informa-
tion, § 7971(187).
State board shall examine statements, § 7971-
(188).
Total value for each county, § 7971(191).
Value per mile, § 7971(190).
RAILROADS.
Intoxicating liquors.
Sales on railroad trains, § 3411(99).
Taxation.
Leased roads, § 7971(198).
Lien on property, § 7971(200).
Schedule of rolling stock to be furnished
board, § 7971(195).
Subpoenaing witnesses and compelling pro-
duction of records, § 7971(199).
Tangible and intangible property assessed
separately, § 7971(196).
Where road both within and without state, §
7971(197).
REAL ESTATE BROKERS AND SALES-
MEN.
Commission.
Creation, § 7312(ee).
License prerequisite to action for recovery of
fees, commissions, etc., § 7312(pp).
Corporations.
Licenses, § 7312(ff).
Counties exempted, § 7312(rr).
Criminal law, § 7312(oo).
Definitions, § 7312(dd).
Examination, § 7312(h).
Exceptions, § 7312(dd).
Exempted counties, § 7312(rr).
Fees, § 7312 (pp).
Hearing, § 7312(11).
Interpretation of chapter, § 7312(qq).
Licenses.
Application, § 7312(gg).
Corporations, § 7312(ff).
Details relating to, § 7312 (jj).
Display, § 7312(jj).
Duplicate, § 7312(hh).
Examination, § 7312(h).
Fees, § 7312(hh).
License required, § 7312 (cc).
Nonresidents, § 7312(mm).
Partnership, § 7312(ff).
Penalty for conducting business without, §
7312(hh).
Powers of commission, § 7312(h).
Prerequisite to action for recovery of fees,
commissions, etc., § 7312(pp).
Provision for hearing, § 7312(11).
Publication of list of licensees, § 7312(nn).
Qualifications, § 7312(ff).
Revocation, § 7312 (kk).
Suspension, § 7312 (kk).
REAL ESTATE BROKERS AND SALES-
MEN—Cont'd.
Names, § 7312(jj).
Nonresidents.
Nonresident brokers and salesman, § 7312-
(mm).
Partnership.
Licenses, § 7312(ff).
Purpose of chapter, § 7312(qq).
Title at law, § 7312(cc).
REAL PROPERTY.
Brokers, §§ 7312(cc)-7312(rr), see "Real Estate
Brokers and Salesmen."
RECEIPTS.
Taxation, § 7971(157).
Disposition of, § 7971(158).
REFORMATORIES.
Discharge, see within this title, "Release and
Discharge from Training and Industrial
Schools."
Release and discharge from training and in-
dustrial schools.
Conditional release, § 7362(p).
Final discharge, § 7362(q).
REFRIGERATOR COMPANIES.
Taxation, § 7971(185).
REMAINDERS, REVERSIONS AND EX-
ECUTORY INTERESTS.
Uniform principal and income act, §§ 4035(1)-
4035(15), see "Uniform Principal and Income
Act."
RIGHT OF ASYLUM.
Extradition.
No right of asylum, § 4556(28).
SALES.
Fair trade, §§ 5126(k)-5126(r), see "Trade-
marks, Brands and Marks."
Real estate brokers and salesmen, §§ 7312(cc)-
7312(rr), see "Real Estate Brokers and Sales-
men."
SALES TAX, § 7880(156)g.
SEARCHES AND SEIZURES.
Search warrants.
Warrant issued without affidavit and exam-
ination of complainant or other person;
evidence discovered thereunder incompetent,
§ 4530(1).
SECRETARY OF STATE.
Corporations.
Require domestication, § 1181(b).
SECURITIES.
Bonds.
1937 bond validating act, § 2959(6).
Taxation.
Persons, firms, banks and corporations deal-
ing in.
Taxed as private banker, § 7971(152).
SECURITIES LAW.
Administration of Capital Issues Law trans-
ferred to secretary of state, § 3924(aa).
390
INDEX
SECURITIES LAW— Cont'd.
Secretary of state.
Administration of Capital Issues Law trans-
ferred to secretary of state, § 3924(aa).
SENTENCE AND PUNISHMENT.
Suspension of sentence, §§ 4665(l)-4665(13), see
"Suspension of Sentence and Probation."
SERVICE OF PROCESS.
Civil county courts.
Processes; pleadings; procedure, § 1608 (vvvv).
Corporations.
Process agent in county where principal office
located, § 1137(a).
Service on inactive corporations, § 1137(a).
Extradition.
Immunity from service of process in certain
civil actions, § 4556(25).
SHERIFFS.
Civil county courts.
Under Act of 1937, § 1608(ffff).
SLEEPING CAR COMPANIES.
Taxation, § 7971(184).
SLOT MACHINES.
Agreements with reference to slot machines or
devices made unlawful, § 4437 (s).
Definition, § 4437(t).
Licenses, § 7880(60)a.
Issuance of license prohibited, § 4437(u).
Manufacturing, owning, storing, keeping, pos-
sessing, selling, etc., prohibited, § 4437 (r).
Nuisances.
Declared a public nuisance, § 4437 (v).
Violation of law made a misdemeanor, § 4437 (w).
SOFT DRINKS.
Larceny.
Destruction or taking of soft drink bottles,
§ 4265(a).
SOIL CONSERVATION DISTRICT LAW.
Committee, § 7395(37).
Declaration of policy, § 7395(35).
Definitions, § 7395(36).
Districts.
Co-operation between districts, § 7395(45).
Creation, § 7395(38).
Discontinuance, § 7395(46).
Election of three supervisors for each district,
§ 7395(39).
Powers, § 7395(41).
Land-use regulations.
Adoption, § 7395(42).
Enforcement, § 7395(43).
Legislative determinations, § 7395(35).
Supervisors.
Adoption of land-use regulations, § 7395(42).
Appointment, qualifications and tenure of su-
pervisors, § 7395(40).
Election of three supervisors for each district,
§ 7395(39).
Performance of work under the regulations
by the supervisors, § 7395(44).
Powers, § 7395(41).
Title of chapter, § 7395(34).
SOLDIERS' HOME.
Provision for accommodations consistent with
health, comfort and happiness, § 5133(1).
SOLICITORS.
Appropriation for expenses, § 3890(a).
Fees.
Appropriation for expenses, § 3890(a).
STATE.
Commission on interstate co-operation, §§ 7534-
(19)-7534(29), see "Commission on Interstate
Co-Operation."
Motor vehicles.
Drivers of state, county and city vehicles
subject to provisions of this article, §
2621(315).
Taxation.
Lien of state taxes, § 7880(168) a.
STATE BUREAU OF IDENTIFICATION
AND INVESTIGATION.
Co-operation of local enforcement officers, §
7534(16).
Costs.
Assessment of additional costs upon convic-
tion, § 7534(17).
Creation, § 7534(9).
Crime statistics, § 7534(11).
Criminologists.
Employment, § 7534(15).
Director of the bureau, § 7534(12).
Assistants, § 7534(13).
Powers and duties, § 7534(13).
Elections.
Investigation of election frauds, § 7534(14).
Finger prints, § 7534(10).
Fraud and deceit.
Investigation of elections, § 7534(14).
Fund of bureau, § 7534(17).
General duties, § 7534(9).
Governor.
Subject to call, § 7534(14).
Laboratory and clinical facilities, § 7534(15).
Lynchings.
Investigation, § 7534(14).
Officers' benefit fund, § 7534(17).
Operations of bureau deferred until sufficient
funds provided, § 7534(18).
Personnel, § 7534(12).
Photography, § 7534(10).
Radio.
Radio system, § 7534(15).
Scientists.
Employment, § 7534(15).
Transfer of activities from present identification
bureau, § 7534(10).
Witnesses.
Fees and mileage for director and assistants,
§ 7534(14).
STATE DEBT.
Educational and charitable institutions.
Special building fund to aid in erection of
schoolhouses.
Payment of loans before maturity; relend-
ing, § 7472(yyl).
Schoolhouses.
Special building fund to aid in erection of
schoolhouses, § 7472(yyl).
INDEX
[ 391
STATE HOME AND INDUSTRIAL SCHOOL
FOR GIRLS.
Citizenship restored, §§ 390(1), 390(2).
STATE PLANNING BOARD.
Acceptance and disbursements of contributions,
§ 7534(5g).
Adoption of plans, § 7534(5e).
Advice and information, § 7534(5e).
Appropriation; approval of expenditures, § 7534-
(5h).
Chairman, § 7534(5c).
Co-operation with other agencies, § 7534 (5e).
Employees, § 7534(5c).
Establishment, § 7534(5a).
Expenditures, § 7534(5c).
Expenses, § 7534(5b).
Functions, § 7534(5d).
General powers, § 7534(5f).
Information supplied to, § 7534(5f).
Membership, § 7534(5b).
Office space and equipment, § 7534(5c).
Publicity program, § 7534(5e).
Rules and regulations, § 7534(5c).
Secretary, § 7534(5c).
Special surveys and studies, § 7534(5c).
Terms of office, § 7534(5b).
STATUTES.
Universities-
Furnished certain universities, § 7661.
STEAMBOAT COMPANIES.
Taxation, § 7971(202).
STOCK AND STOCKHOLDERS.
Notaries.
Notaries who are stockholders, § 3175(a).
Taxation.
Intangible personal property tax.
On shares of stock, § 7880(156)uu.
Uniform principal and income act, §§ 4035(1)-
4035(15), see "Uniform Principal and In-
come Act."
STONEWALL JACKSON MANUAL TRAIN-
ING AND INDUSTRIAL SCHOOL.
Citizenship restored, §§ 390(1), 390(2).
STREET RAILWAYS.
Motor vehicles.
Passing street cars, § 2621(306).
Taxation, § 7971(186).
STREETS AND HIGHWAYS.
Bonds.
Highway patrol, § 323(b).
Prisoners on roads.
Use of county prisoners in maintaining roads,
not within state system, § 1364(1).
State highway patrol.
Bonds, § 323(b).
Compliance with federal appropriation statute
authorized, § 3846(mmm)l.
SUNDAYS AND HOLIDAYS.
Intoxicating liquors.
Stores closed, § 3411(76).
SUPERSEDEAS AND STAY OF PROCEED-
INGS.
Civil county courts, § 1608 (xxxx).
SUPREME COURT.
Librarian.
Assistant librarian, § 1428.
SUPREME COURT REPORTS.
Allotted to Davidson and Catawba colleges, §
7667(e).
SUSPENSION OF SENTENCE AND PRO-
BATION.
Arrest, § 4665(4).
Commission.
Appointment of director of probation, §
4665(6).
Co-operation with commissioner of parole and
officials of local units, § 4665(10).
Duties and powers, § 4665(6).
Establishment of commission, § 4665(5).
Meetings, § 4665(6).
Organization of commission, § 4665(5).
Qualifications, § 4665(6).
Conditions of probation, § 4665(3).
Director of probation.
Appointment, § 4665(6).
Appointment of probation officers, § 4665(7).
Co-operation with commissioner of parole and
officials of local units, § 4665(10).
Duties, § 4665(6).
Investigation by probation officer, § 4665(2).
Offenses for which sentence may be suspended
or defendant placed on probation, § 4665(1).
Probation officers.
Accommodations for probation officers, §
4665(13).
Appointment, § 4665(7).
Assignment, § 4665(8).
Compensation, § 4665(8).
Duties, § 4665(9).
Oaths, § 4665(8).
Powers, § 4665(9).
Records treated as privileged information, §
4665(11).
Salaries and expenses, § 4665(12).
State probation commission, see within this
title, "Commission."
Subsequent disposition, § 4665(4).
Termination of probation, § 4665(4).
TATTOOING.
Criminal law.
Tattooing prohibited, § 4511(h).
Infants.
Tattooing prohibited, § 4511(h).
TAXATION.
Abstracts.
Review, § 797l(l55).
Accounts and accounting.
Accounts receivable, § 7880(156)rr.
Ad valorem.
Uniform ad valorem taxation, see within this
title, "Uniform Ad Valorem Taxation."
Annual assessment.
Article subordinated to § 7880(156) oo et seq.,
§ 7971(115). _
Date as of which assessment is to be made,
§ 7971(113).
Listing and assessing, § 7971(112).
Property subject to taxation, § 7971(114).
392
INDEX
TAXATION— Cont'd.
Annuities.
Gift tax, § 7880(156)11.
Appeals.
Gift tax, § 7880(l56)mm.
Review of returns, § 7880(123) a.
Article not to be construed in conflict with §
7880(l56)oo et seq., § 7971(154).
Assessments.
Cities and towns, see within this title, "Mu-
nicipal Corporations."
Forms, § 7971(146).
Gift taxes, see within this title, "Gifts."
Personnel for county tax listing and asses-
sing, see within this title, "Personnel for
County Tax Listing and Assessing."
Assessors, see within this title, "Personnel for
County Tax Listing and Assessing."
Banks and banking, § 7971(176).
Access to safe deposits of a decedent, § 7880-
(21).
Article not to conflict with § 7880(l56)oo et
seq., § 7971(179).
Department of revenue authorized to relieve
banks of duty of collecting tax on intangi-
bles, held by clerks of courts, § 7880-
(I56)ppl.
Deposits, § 7880(l56)pp.
Intangible personal property tax, § 7880-
(156)xx.
Persons, firms, banks and corporations deal-
ing in securities.
Taxed as private banker, § 7971(152).
Private banks and bankers, § 7971(151).
Bonds.
Intangible personal property tax, § 7880-
(156) tt.
Bridges.
Bridge companies, § 7971(186).
Brokers, § 7971 (151).
Reports, § 7971(150).
Security brokers, § 7971(151).
Building and loan associations, § 7971 (177).
Article not to conflict with § 7880(156)oo et
seq., § 7971(179).
Evidences of debt, § 7880(l56)tt.
Foreign building and loan associations, §
7971(178).
Building materials, § 7880(156) dd.
Canal companies, § 7971(202).
Clerks of superior courts.
Funds held by, § 7880(156)ss.
Collection of taxes.
Gift tax, § 7880(l56)jj.
Release or remittance, § 7976(b).
Consignees.
Reports, § 7971(150).
Constitution of North Carolina.
State taxation, Appx. I, const, art. V, § 3.
Co-operative growers.
Lists, § 7971(149).
Corporations.
Board of assessment to keep records, § 7971-
(180).
Foreign corporations not exempt, § 7971-
(203).
Intangible personal property tax.
On shares of stock, § 7880(l56)vv.
Penalty for failure to file report, § 7880(122).
TAXATION— Cont'd.
Counties.
Indebtedness to be reported, § 7971(170).
Intangible personal property tax.
Separate record by counties; reports to
state board of assessment; distribution to
counties and cities, § 7880(156) ddd.
Personnel for county tax listing and asses-
sing, see within this title, "Personnel for
County Tax Listing and Assessing."
County board of equalization and review.
Appeal to state board of assessment, § 7971-
(162).
Clerk, § 7971(160).
Compensation, § 7971(160).
Giving effect to decisions of board, § 7971-
(161).
Notice of meeting, § 7971(160).
Oath, § 7971(160).
Personnel, § 797l(l60).
Powers and duties, § 7971(160).
Powers of commissioners with respect to rec-
ords after adjournment of board, § 7971-
(163).
Time of meeting, § 7971(160).
County commissioners.
Discovery and assessment of property not
listed, § 7971(164).
Powers after adjournment of board of equali-
zation, § 7971(163).
Credits, § 7971(131).
Deductions, § 7971(131).
Discounts.
Non-payment, § 7971(175).
Electric light and power companies, § 7971-
(186).
Emergency revenue.
Additional tax on sellers of motor vehicles, §
7880(156)g.
Equalization, see within this title, "County
Board of Equalization and Review."
Executors and administrators.
Access to safe deposits of a decedent, § 7880-
(21).
Funds held by, § 7880(156) ss.
Exemptions from taxation.
Article subordinate to § 7880(l56)oo et seq.,
§ 7971(132).
Foreign corporations not exempt, § 7971(203).
Gifts, § 7880(156)ee.
Intangible personal property tax, § 7880-
(I56)ccc.
Personal property, § 7971(130).
Real property, § 7971(129).
Records of tax exempt property, § 7971(145).
Express companies, § 7971 (183).
Fees.
Compensation of officer computing taxes, §
7971(159).
Ferries, § 7971(186).
Fiduciaries.
Funds held by fiduciaries, § 7880(l56)ss.
Foreign corporations.
Not exempt, § 7971(203).
Freight-car companies, § 7971(185).
Gas and gas companies, § 7971(186).
Gifts, § 7880(l56)ee.
Application to department of revenue for
correction of assessment, § 7880(l56)hh.
INDEX
[393
TAXATION— Cont'd.
Gifts— Cont'd.
Assessment upon actual value of property, §
7880(156)11.
Assessment upon failure or refusal to file
proper return, § 7880 (156) kk.
Classification of beneficiaries, § 7880(156)ee.
Collection, § 7880(l56)jj.
Exemptions, § 7880(l56)ee.
Gifts made in property, § 7880(156)gg.
Interest, § 7880(156)ii.
Lien for tax; collection of tax, § 7880(l56)jj.
Limitation upon assessment, § 7880(l56)kk.
Manner of determining tax, § 7880(l56)hh.
Manner of determining value of annuities,
life estates and interests less than absolute,
interest, § 7880(156)11.
Penalties, § 7880(156)ii.
Rates of tax, § 7880 (156) ee.
Returns.
Extension of time of filing, § 7880(156)nn.
Time of filing, § 7880(l56)nn.
Time of payment, § 7880(156)hh.
Transfer for less than adequate and full con-
sideration, § 7880(l56)ff.
Insurance.
Matured insurance policies, § 7880(l56)ss.
Intangible personal property.
Accounts receivable, § 7880(l56)rr.
Bank deposits, § 7880(l56)pp.
Bonds, § 7880(156)tt.
Conversion of intangible personal property to
evade taxation not to defeat assessment and
collection of proper taxes, § 7880(156)yy.
Department of revenue authorized to relieve
banks of duty of collecting tax on intangi-
bles, held by clerks of courts, § 7880-
(156)ppl.
Forms for report, § 7880(l56)zz.
Funds held by fiduciaries, § 7880<156)ss.
Institutions exempted, § 7880(156) ccc.
Levy of tax, § 7880(156)oo.
Matured insurance policies, § 7880(l56)ss.
Moneyed capital coming into competition
with the business of national banks, § 7880-
(156)xx.
Money on hand, § 7880(156)qq.
Negotiable instruments, § 7880(156)tt.
Nonresidents, § 7880(156)ww.
Penalties, § 7880 (156) bbb.
Protection for taxpayers making complete re-
turn, § 7880(156)aaa.
Provision for administration, § 7880 (156) eee.
Separate record by counties; reports to state
board of assessment; distribution to coun-
ties and cities, § 7880(156)ddd.
Shares of stock, § 7880(156)uu.
Taxes due and payable, § 7880 (156) vv.
Intoxicating liquors.
Additional tax, § 3411(109).
Payment of tax by retailers, § 3411(111).
Possession illegal if taxes not paid, § 3411(77).
Possession in container without proper stamp,
prima facie evidence, § 3411(77).
Tax on spirituous liquors, § 3411(112).
Tax payable by wholesale distributors, § 3411-
(110).
Levy, § 7971(172).
Date lien attaches, § 7971(173).
Poll tax, § 7971(174).
TAXATION— Cont'd.
Liens.
Gift tax, § 7880(156)jj.
Levy as of date of which lien attaches, § 7971-
(173).
Railroads, § 7971(200).
State taxes, § 7880(l68)a.
Life estates.
Gift tax, § 7880(156)11.
Listing.
Agents.
Listing by agents, § 7971(142).
Article subordinate to § 7880(156)oo et seq.,
§ 7971(147).
Contents, § 7971(139).
Duty to list, § 7971(140).
Forms, § 7971(146).
Length of listing period, § 7971(144).
Mail.
Listing by mail, § 7971(143).
Oath of taxpayer, § 7971(141).
Penalty for failure to list, § 7971(140).
Personal property.
Article not in conflict with § 78S0(l56)oo et
seq., § 7971(138).
In whose name listed, § 7971(137).
Place, § 7971(135).
Intangible property, § 7971(136).
Personnel for county tax listing and assessing,
see within this title, "Personnel for County
Tax Listing and Assessing."
Preliminary work, § 7971(144).
Real property.
Information, § 7971(134).
In whose name, § 7971(134).
Permanent listing, § 7971(134).
Place, § 7971(133).
Records of tax exempt property, § 7971(145).
Special penalty for failure to list solvent cred-
its, § 7971(140).
What list shall contain, § 7971(139).
Lists, see within this title, "Personnel for
County Tax Listing and Assessing."
Cities and towns, see within this title, "Munic-
ipal Corporations."
Co-operative growers' or marketing associa-
tions, § 7971(149).
Partnership, § 7971(153).
Validation of listings, § 7971(208).
Warehouses, § 7971(149).
List takers, see within this title, "Personnel for
County Tax Listing and Assessing."
List takers and assessors.
Discovery of property not listed, § 7971(164).
Review of abstracts, §, 7971(155).
Machinery act in general.
Definitions, § 7971(105).
Effective date, § 7971(207).
Official title, § 7971(104).
Purpose of act, § 7971(205).
Quadrennial assessment, see within this title,
"Quadrennial Assessment."
Repeal of inconsistent laws, § 7971(206).
State board of assessment, see within this ti-
tle, "State Board of Assessment."
Unconstitutionality or invalidity, § 7971(204).
Marketing associations.
Lists, § 7971(149).
394
INDEX
TAXATION— Cont'd.
Money.
Money on hand, § 7880(156) qq.
Motor vehicles.
Emergency revenue.
Sales tax, § 7880(156)g.
Information to be given by owner applying
for license tags, § 7971(148).
Municipal corporations.
Cities and towns situated in more than one
county, § 7971(167).
Clerks of cities and towns to furnish informa-
tion, § 7971(169).
Intangible personal property tax.
Separate record by counties; reports to state
board of assessment; distribution to coun-
ties and cities, § 7880(156)ddd.
Status of property and polls listed for taxa-
tion, § 7971(165).
Tax lists and assessment powers of cities and
towns, § 7971(166).
Negotiable Instruments.
Intangible personal property tax, § 7880-
(I56)tt.
Nonresidents.
Intangible personal property tax, § 7880-
(156)ww.
Partnership.
Liability of partners for tax, § 7971(153).
Payment.
Gift tax.
Time of payment, § 7880(156)hh.
Penalties and discounts for non-payment, §
7971(175).
Penalties.
Non-payment, § 7971(175).
Personal property.
Intangible personal property, see within this
title, "Intangible Personal Property."
Listing, see within this title, "Listing."
Personnel for county tax listing and assessing.
Clerical assistants, § 7971(125).
Experts.
Employment, § 7971(124).
List takers and assessors.
Appointment, § 7971(120).
Compensation, § 7971(121).
Duties, § 7971(123).
Number, § 7971(120).
Oath, § 7971(122).
Powers, § 7971(123).
Qualifications, § 7971(120).
Term of office, § 7971(121).
Supervisors.
Appointment, § 7971(116).
Compensation, § 7971(117).
Duties, § 7971(119).
Oath, § 7971(118).
Powers, § 7971(119).
Qualifications, § 7971(116).
Term of office, § 7971(117).
Tax commission, § 7971(126).
Poll taxes.
Levy, § 7971(174).
Public service corporations, §§ 7971(181)-7971-
(202).
Appraisers for public utilities, § 7971(193).
Certification of apportionment of valuations to
counties and municipalities, § 7971(201).
TAXATION— Cont'd.
Public service corporations — Cont'd.
Companies failing to pay tax, § 7971(192).
Manner of assessment, § 7971(189).
Payment of local taxes, § 7971(201).
Returns to state board, § 7971(194).
State board may require additional informa-
tion, § 7971(187).
State board shall examine statements, § 7971-
(188).
Total value for each county, § 7971(191).
Value per mile, § 7971((190).
Public utilities, § 7971(186).
Quadrennial assessment.
Listing and assessing, § 7971(111).
Railroads, see within this title, "Public Serv-
ice Corporations."
Leased roads, § 7971(198).
Lien on property, § 7971(200).
Schedule of rolling stock to be furnished
board, § 7971(195).
Subpoenaing witnesses and compelling pro-
duction of records, § 7971(199).
Tangible and intangible property assessed
separately, § 7971(196).
Where road both within and without state, §
7971(197).
Rates of tax.
Gifts, § 7880(l56)ee.
Real property.
Exemption, § 7971(129).
Listing, see within this title, "Listing."
Place of listing, § 7971(133).
Receipts, § 7971(157).
Disposition of, § 7971(158).
Record.
Disposition of, § 7971(158).
Making up records, § 7971(156).
Refrigerator companies, § 7971(185).
Release.
Authorities authorized to release, § 7976(b).
Remittance.
Authorities authorized to remit, § 7976(b).
Reports.
Clerks of cities and towns to furnish informa-
tion, § 7971(169).
County indebtedness to be reported, § 7971-
(170).
Penalty for failure to make report, § 7971-
(171).
Valuation and taxes, § 7971(168).
Returns.
Extension of time of filing, § 7880(123)c.
Fraudulent return made misdemeanor, § 7880-
(123)c.
Gift tax, § 7880(156)nn.
Public service corporation, § 7971(194).
Review of returns, § 7880(123)a.
Review, see within this title, "County Board
of Equalization and Review."
Sales for taxes.
Real property.
Notice by publication validated, § 8012(d).
Publication, § 8012(d).
Sales tax, § 7880(156)g.
Securities.
Persons, firms, banks and corporations dealing
in.
Taxed as private hanker, § 7971(152).
INDEX
[ 395
TAXATION— Cont'd.
Sleeping car companies, § 7971(184).
State.
Lien of state taxes, § 7880(168)a.
State board of assessment.
Creation, § 7971(106).
Duties, § 7971(108).
Oaths, § 7971(107).
Officers, § 7971(106).
Powers, § 7971(109).
Sessions, § 7971(110).
Steamboat companies, § 7971(202).
Stock and stockholders.
Intangible personal property tax.
On shares of stock, § 7880(156)uu.
Street railways, § 7971(186).
Stubs, § 7971(157).
Supervisors.
Discovery of property not Hsied, § 7971(164).
Review of abstracts, § 7971(155).
Telegraph companies, § 7971(181).
Telephone companies, § 7971(182).
Trust, fiduciary and surety companies, § 7971-
(176).
Article not to conflict with § 7880(156)oo et
seq., § 7971(179).
Trusts and trustees.
Funds held by, § 7880(156)ss.
Uniform ad valorem taxation.
Land and buildings, § 7971(128).
Taxes to be uniform, § 7971(127).
Valuation.
Report, § 7971(168).
Warehouses and warehousemen.
To furnish lists, § 7971(149).
Waterworks, § 7971(186).
TELEGRAPHS AND TELEPHONES.
Taxation, §§ 7971(181), 7971(182).
TERMS OF COURT.
Civil county courts, § 1608 (pppp).
TILE CONTRACTORS, §§ 5168(eee)-5168(ooo),
see "Contractors."
TOBACCO.
Account, see within this title, "Tobacco Com-
mission Account."
Acreage quota for each farm, § 4930(5).
Board of adjustment and review for each county,
§ 4930(7).
Commission.
Compensation, § 4930(2).
County and district committeemen, § 4930(2).
Creation, § 4930(2).
Fund, see within this title, "Tobacco Commis-
sion Account."
Handling of funds and receiving payments, §
4930(8).
Members, § 4930(2).
Penalty for failure to furnish information on
request of commission, § 4930(15).
Vacancies, § 4930(2).
Compacts with other states, § 4930(3).
Form and provisions of compact, § 4930(19).
Co-operation with other states and secretary
of agriculture in making determinations, §
4930(4).
TOBACCO— Cont'd.
Criminal law.
Courts may punish or enjoin violations, §
4930(16).
Violation a misdemeanor, § 4930(14).
Violation punishable by forfeiture of sum
equal to three times value of tobacco, §
4930(12).
Criminal procedure.
Attorneys for state to institute proceedings,
etc.; commission to report violations to so-
licitors, etc., § 4930(17).
Dealers in scrap tobacco.
Exemptions, § 5126(a5).
Violation made misdemeanor, § 5126 (a4).
Definitions, § 4930(1).
Injunctions, § 4930(16).
Marketing certificate.
Unlawful to sell, buy, etc., without, § 4930(11).
Marketing quota for each farm, § 4930(5).
North Carolina tobacco commission, see within
this title, "Commission."
Quotas.
Administrative committees, § 4930(6).
Charge for surplus tobacco, § 4930(6).
Collection of information, § 4930(6).
Forfeiture for harvesting from acreage in ex-
cess of quota, § 4930(13).
Hearings and investigations, § 4930(6).
Marketing and resale certificates, § 4930(6).
Notification of quotas, § 4930(6).
Regulations, § 4930(6).
Tobacco acreage and marketing quotas for
each farm, § 4930(5).
Receipts from surplus produced in other states,
paid to commission of such states; co-opera-
tion with other commissions, § 4930(18).
Tobacco commission account.
Deposit with state treasurer, § 4930(9).
Purposes for which funds expended, § 4930-
(10).
Reserve necessary, § 4930(10).
TRADEMARKS, BRANDS AND MARKS.
Fair trade.
Authorized contracts relating to commodities
bearing trademarks, brand or name, §
5126(1).
Certain evasions of resale prke restrictions,
prohibited, § 5126(m).
Contracts with persons other than the owner
of the brand, etc., not authorized, § 5126(n).
Definitions, § 5126(k).
Exemptions, § 5126(q).
Resales not precluded by contract, § 5126('o).
Title of article, § 5126(r).
Violation of contract declared unfair compe-
tition, § 5126(p).
TRESPASS.
Fires.
Starting fires within five hundred feet of areas
under protection of state forest service, §
4311(a).
TRUST, FIDUCIARY AND SURETY COM-
PANIES.
Taxation, § 7971(176).
Article not to conflict with § 7880(156)oo et
seq., § 7971(179).
396
INDEX
TRUSTS AND TRUSTEES.
Taxation.
Funds held by, § 7880(156)ss.
Uniform principal and income act, §§ 4035(1)-
4035(15), see "Uniform Principal and Income
Act."
UNEMPLOYMENT COMPENSATION.
Administration, § 8052(11).
Fund, § 8052(13).
Benefits, § 8052(3).
Claims for, § 8052(6).
Disqualification, § 8052(5).
Eligibility conditions, § 8052(4).
Protection of, § 8052(15).
Commission.
Unemployment compensation commission, §
8052(10).
Contributions, § 8052(7).
Collection, § 8052(14).
Courts.
Representation in court, § 8052(17).
Criminal law, § 8052(16).
Declaration of policy, § 8052(2).
Definitions, § 8052(19).
Elections as to employer's coverage, § 8052(8).
Eligibility conditions, § 8052(4).
Employment service, § 8052(12).
Enforcement discontinued upon repeal or inval-
idation, § 8052(20).
Federal acts.
Enforcement discontinued upon repeal or in-
validation, § 8052(20).
Fund, § 8052(9).
Administration fund, § 8052(13).
Penalties, § 8052(16).
Period of coverage, § 8052(8).
Rights.
Protection of, § 8052(15).
State.
Non-liability, § 8052(18).
Termination of employer's coverage, § 8052(8).
Title, § 8052(1).
UNIFORM CRIMINAL EXTRADITION
ACT, §§ 4556(l)-4556(30), see "Extradition."
UNIFORM PRINCIPAL AND INCOME ACT.
Application of chapter, § 4035(2).
Apportionment of income, § 4035(4).
Corporate dividends and share rights, § 4035(5).
Definitions, § 4035(1).
Disposition of income and principal, § 4035(3).
Disposition of natural resources, § 4035(9).
Expenses.
Non-trust estates, § 4035(13).
Trust estates, § 4035(12).
Powers of settlor, § 4035(2).
Premium and discount bonds, § 4035(6).
Principal comprising animals, § 4035(8).
Principal subject to depletion, § 4035(10).
Principal used in business, § 4035(7).
Title of chapter, § 4035(15).
Uniformity of interpretation, § 4035(14).
Unproductive estate, § 4035(11).
UNIVERSITIES AND COLLEGES.
Statutes.
Furnished certain universities, § 7661.
UNIVERSITY OF NORTH CAROLINA.
Banks and banking.
Certain unclaimed bank deposits to university,
§ 5786(1).
VACATION.
Judgment.
Confirmation of judicial sales, § 598.
VENEREAL DISEASES.
Prisons and prisoners.
Treatment of infected prisoners required be-
fore release, § 7194(a).
WAIVER.
Extradition.
Non-waiver by this state, § 4556(27).
Written waiver of extradition proceedings, §
4556(26).
WAREHOUSES AND WAREHOUSEMEN.
Taxation.
To furnish lists, § 7971(149).
WARRANTS.
Extraditions, §§ 4556 (l) -4556 (30), see "Extradi-
tion."
WATER COMPANIES AND WATER-
WORKS.
Taxation, § 7971(186).
WEAPONS.
Game laws.
Penalty for violation, § 2141(29).
Possession of firearm silencer while hunting
game, made unlawful, § 2141(28).
WEIGHTS AND MEASURES.
Gasoline and oil inspection.
Devices calculated to falsify, § 4870(ee).
WILLS.
Bonds.
Prosecution bond required in actions to con-
test wills, § 4159(a).
Caveat to will.
Prosecution bond required in actions to con-
test wills, § 4159(a).
Depository for wills.
Depositories in offices of clerks of superior
court where living persons may file wills, §
4138(a).
WITNESSES.
Attendance of witnesses.
Attendance of witnesses from without state,
see within this title, "Attendance of Wit-
nesses from without State."
Attendance of witnesses from without state.
Definitions, § 1808(1).
Exemption from arrest and service of process,
§ 1808(4).
Summoning witness in this state to testify in
another state, § 1808(2).
Title of article, § 1808(6).
Uniformity of interpretation, § 1808(5).
Witness from another state summoned to tes-
tify in this state, § 1808(3).
INDEX
[ 39?
WITNESSES— Cont'd.
Motor vehicles.
Department may summon witnesses, § 2621-
(197).
Nonresidents, see within this title, "Attendance
of Witnesses from without State."
State bureau of identification and investigation.
Fees and mileage for director and assistants,
§ 7534(14).
WORKING CONTRACTS.
Building permits.
Regulations as to issue of building permits, §
5168(oo).
Electrical contractors, §§ 5168(ppp)-5l68(bbbb),
see "Contractors."
WORKING CONTRACTS— Cont'd.
Tile contractors, §§ 5168(eee)-5168(ooo), see
"Contractors."
WORLD WAR ORPHANS.
Approval and payment of amounts charged by
institution, § 5912(n).
Free tuition, room rent and board; certificate of
post commander; statement from veterans
administration, § 5912(m).
WORTHLESS CHECKS.
Motor vehicles.
Penalty for bad check, § 2621(324).
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