Title: S.L. 1965-1029
Category: Introduced Bill
Keywords: Bill ?

NORTH CAROLINA GENERAL ASSEMBLY
1965 SESSION

CHAPTER 1029
HOUSE BILL 959

AN ACT TO AMEND AND CLARIFY ARTICLE 38, CHAPTER 106 OF THE GENERAL STATUTES RELATING TO THE STATE WAREHOUSE SYSTEM FOR MARKETING AGRICULTURAL COMMODITIES.

The General Assembly of North Carolina do enact:

Section 1.  Purpose. The purposes of this Act are: to clarify and amend portions of Article 38, Chapter 106 of the General Statutes of North Carolina; to provide that "North Carolina Agricultural Warehouse Act" is the short title to the Article; to clarify the status of privately owned and operated component units of the State Warehouse System as licensed and regulated private enterprises for profit, under license and regulation, as provided by law, by the State of North Carolina, acting through the State Board of Agriculture and the State Warehouse Superintendent (hereinafter referred to jointly as "State"); to clearly distinguish between officers, agencies and employees of the State engaged in administering the Act and the owners, operators, managers, and employees of privately owned and licensed warehouse facilities operating under, and regulated and supervised under, provisions of the "Act"; to conform the statute to modern practice in the warehousing of agricultural commodities, particularly fungible agricultural products deposited or stored in bulk and on a nonidentity preserved basis and according to weight or volume and grade; to clarify and facilitate the inter-relationship and cooperation between the State of North Carolina and the Federal Government with respect to the qualification and operation of State licensed but privately owned and operated agricultural warehouse facilities as component units of the State Warehouse System affiliated with, and to some degree subject to certain of the provisions of, the United States Warehouse Act; and to accomplish other related purposes.
Sec. 2.  Article 38, Chapter 106 of the General Statutes, as the same appears in 1960 Replacement Volume 3A, is amended by adding immediately preceding G.S. 106-430 a new Section "106-429.1", suitably captioned such as "Short Title", to read as follows:
"§ 106-429.1.  The provisions of this Article may be known and designated as the 'North Carolina Agricultural Warehouse Act'."
Sec. 3.  Article 38, Chapter 106 of the General Statutes, as the same appears in 1960 Replacement Volume 3A, is amended by adding a new Section, suitably captioned, designated Section "106-432.1", to read as follows:
"§ 106-432.1.  For the purposes of this Article, the relationship and status of employer-employee shall be deemed to exist only: when created and subsisting under an express contract of employment, written or oral; for a term, or terminable at the will of the employer; wherein the right to make and enter into the contract of hire or employment, and the right to fire, or to discharge, either at will or for cause reserved in the contract of employment, shall remain with the employer, with respect to the person employed; and the right to prescribe, direct, supervise and closely control the duties of the employee and the discharge of his duties of employment, remains substantially with the employer; and where the compensation of the employee is determined, pursuant to contract or otherwise, by the employer and paid wholly or in part from funds of the employer or funds controlled, at least in part, by and available to him.
"No person functioning under or pursuant to this Article shall be deemed an employee or agent or officer of the State of North Carolina, the State Board of Agriculture, the State Warehouse Superintendent, or of the State Warehouse System, as such: unless in this Article and in pertinent regulations and in an express contract, specifically made and designated an employee or agent of the State or State agency (whether as an assistant, manager, inspector, grader, or classer) and unless actually engaged in and within the scope of his duties as an employee, official, or agent of the State of North Carolina, the Board, the Superintendent or the System; and unless such person is compensated in whole or in part from funds of or within the control of the State of North Carolina; and unless subject to the right of the State or any of the State agencies, officers and instrumentalities mentioned, to engage, employ or hire him and to terminate his employment or agency, or to contract with him with respect to the terms and conditions and termination of his agency or employment; and unless subject to the direct control of the State of North Carolina or any of its officers, agencies or entities, with respect to fixing, supervising and controlling his duties of employment or agency."
Sec. 4.  G.S. 106-433, as the same appears in the 1960 Replacement Volume 3A of the General Statutes, is amended by appropriately changing the caption of the Section, designating the present Section as subsection(a) and adding a new subsection (b) to read as follows:
"(b)	The Board of Agriculture acting through the State Warehouse Superintendent is authorized, from time to time, to license privately owned or operated warehouse facilities as component units of the State Warehouse System (whether under a lease of such facilities from the State or not) to operate under and pursuant to the provisions of this Article, and to require or permit such licensed warehouse facility to operate and function as a component of the State Warehouse System and to subordinate and maintain the licensed warehouse operation (subject to the supervision and regulation of the State Warehouse Superintendent) under the United States Warehouse Act, and regulations thereunder, as referred to in G.S. 106-450. Licensing and operation requirements of such licensed component warehouse facilities of the State Warehouse System may be determined and regulated generally by rules and regulations prescribed by the Board, and the State Warehouse Superintendent may, in addition, prescribe special rules, regulations, and conditions applicable to the particular licensed warehouse facility. Any license issued by the Board from time to time may be cancelled, revoked, or suspended in the unfettered discretion of the Board or the State Warehouse Superintendent, with or without cause. Such cancellation, revocation, termination or suspension shall also have the immediate effect of terminating, revoking, cancelling or suspending the operation of the warehouse facility as a component unit in the State Warehouse System under the United States Warehouse Act and Federal regulations issued thereunder. The Board of Agriculture or the State Warehouse Superintendent may, in their discretion, require and issue, and from time to time revoke, cancel, terminate or suspend, a license for individual warehouse superintendents, managers, examiners, inspectors, classers, and any other employees of privately owned and licensed warehouse facilities, and may generally fix and regulate their duties. The Board of Agriculture or the State Warehouse Superintendent may, in their unfettered discretion, take any action, with respect to such employees, deemed necessary to insure, or safeguard, or protect the State Warehouse System, and to better carry out and enforce the provisions of this Article, and those provisions of the United States Warehouse Act and regulations thereunder which may be incumbent upon the Board or the Superintendent. Such individuals, whether licensed or not, shall not be employees or agents of the 'State' (which is denned for the purposes of this Act to mean and include the State of North Carolina, the State Board of Agriculture, the State Warehouse Superintendent, or the State Warehouse System)."
Sec. 5.  G.S. 106-434, as the same appears in the 1960 Replacement Volume 3A of the General Statutes, is amended by appropriately revising the caption and by rewriting the last sentence thereof to read as follows:
"The State Warehouse Superintendent shall, to safeguard the interests of the State, require bonds from other State employees or agents authorized in Section 106-433 (a), and may, both for the purpose of safeguarding the interests of the State and of depositors of agricultural commodities with valid, subsisting, and duly authenticated official negotiable warehouse receipts issued under and pursuant to Section 106-441, or the pledgee or transferee of such official negotiable warehouse receipts under Section 106-442, require bonds with corporate surety from privately owned and licensed warehouse facilities and from warehouse superintendents, managers and other employees of the licensed warehouse facilities authorized under G.S. 106-433 (b). All such bonds shall be in such ample penal sums and secured by corporate surety authorized to do business in the State of North Carolina, as the State Warehouse Superintendent may direct and find that ordinary business experience in such matters would require."
Sec. 6.  G.S. 106-437 is amended by deleting, in the first sentence "No man shall be employed as manager" and substituting in lieu thereof "No otherwise qualified person shall be qualified as manager".
Sec. 7.  G.S. 106-439 is amended in the following respects:
(1)	The first sentence, including the proviso, in Section 106-439 is rewritten to read as follows:
"The State Warehouse Superintendent shall have the power to lease for State operation by State employees and for stated terms property for the warehousing by the State of cotton and other agricultural commodities. The State Warehouse Superintendent shall also have the power to lease from, and to license private or corporate warehouse property for the warehousing of such agricultural commodities under State license, general supervision and control, as a component unit of the State Warehouse System. The terms and conditions of the State license shall prevail over the stated terms and conditions of the lease. In no event, however, regardless of the terms and conditions of the lease, shall any rental be paid by the State until the operating expenses of the leased warehouse facility shall have been paid from the income from the leased warehouse facility. The State shall not be responsible in any case for the payment of rental, except from the income of any leased warehouse facility in excess of the operating expenses of the facilities. The State Warehouse Superintendent shall fix the terms upon which private or corporate warehouses may be permitted to operate under State license and supervision, and obtain the benefits thereof, regardless of the terms and conditions of any lease agreement between the private or corporate warehouse and the State."
(2)	In line 14 of G.S. 106-439 as the same appears in 1960 Replacement Volume 3A of the General Statutes, delete the words "by any officer of the System".
(3)	In line 16, G.S. 106-439, as the same appears in 1960 Replacement Volume 3A of the General Statutes, is amended by striking "such State management" and inserting in lieu thereof the following:
"operation of such warehouses under direct State management, or as the case may be, under State license, general supervision and regulation, as component units of the State Warehouse System."
Sec. 8.  G.S. 106-441 as the same appears in 1960 Replacement Volume 3 A of the General Statutes is amended in the following respects:
(1)	The fifth sentence is rewritten to read as follows:
"The warehouse manager shall fill in receipts issued under this Act and they shall be signed by him or in his name by his duly authorized agent, and by the State Warehouse Superintendent or in the name of the State Warehouse Superintendent by his duly authorized licensee, State employee, or State agent."
(2)	The first clause of the last sentence of G.S. 106-441 is rewritten to read as follows:
"No responsibility is assumed by the State Warehouse System for fluctuation in weight or grade or quality due to natural causes;".
Sec. 9.  G.S. 106-445 as the same appears in 1960 Replacement Volume 3 A of the General Statutes is amended (1) by deleting lines 1, 2 and 3 through "receipt" and inserting in lieu thereof the following:
"A duplicate receipt is authorized to be issued"; and
(2)	By deleting "local manager" in line 1 of page 191, and substituting in lieu thereof "component warehouse facility and the State Warehouse System"; and
(3)	By also deleting "warehouse superintendent" from line 1 of page 191.
Sec. 10.  G.S. 106-446 as the same appears in 1960 Replacement Volume 3A of the General Statutes is amended by deleting from the third line of the second sentence thereof the following:
"of all officers".
Sec. 11.  G.S. 106-450 as the same appears in 1960 Replacement Volume 3A of the General Statutes is amended by rewriting the same to read as follows:
"(a)	The State Warehouse Superintendent may,
(1)	upon approval of the Board of Agriculture, operate or cause to be operated by State employees or State agents under his immediate and direct supervision and control, any or all State owned or State leased warehouses, or
(2)	may cause to be operated privately owned and operated, but State licensed and generally regulated and supervised warehouses, also leased by the State Warehouse Superintendent, and forming component units of the State Warehouse System,
(3)	all under and pursuant to the provisions of this Article, subject to the United States Warehouse Act and lawful regulations issued thereunder.
"(b)	The State Warehouse Superintendent is authorized, and the owners, operators, officers, and employees of affiliated State licensed component units in the State Warehouse System are directed, to comply with the said United States Warehouse Act and such lawful regulations as may be issued thereunder, by the Federal authorities, and such additional State rules and regulations which may be imposed, under and pursuant to this Article, upon all parties concerned in the operation of the State Warehouse System."
Sec. 11.  All laws and clauses of laws in conflict with the provisions of this Act are hereby repealed.
Sec. 12.  This Act shall be in full force and effect from and after its ratification.
In the General Assembly read three times and ratified, this the 14th day of June, 1965.