The record-- of your State Law Department for 1947 : submitted for public information

of Your
STATE LAW DEPARTMENT
or 1947
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FOR PUBLIC INFORMATION

I respeotfully submit herewith a rsctual report on the activities of the State Law Department tor the calendar year 1947.
In this report I have given a brief reaUlll& or a rew or tbe _jor cases handled by the State Law Department whicb were instituted and terminated in 1947 artocting the economic and political structure of our social order. These eases attracted national and, in some instance., internat10nal attention. They establish a permanent rormula ror governMntal aotion within the r8Jllllwork ot our State and Nat10nal Const1tutions in their re.pective phases.
The following are some or these classic easea: Governorship CAses Jekyll Islsnd Acqu1sition Case. The Klan and the Columb1an. Case. The Ports Authority Case Railroad Tax Exemption Cases White Pr1lll&ry Case Freight Rate Ca.e County unit Case
In addition to the roregoing cases, 1t w111 be noted that thia report cover. deta11ed in!ormat10n as to the cost or operatIng the Department and tho results accomp11shed.
Reapectrully submItted.
~~~

" I believe this to be the strongest government on ea1ih ... the only one where every moo, at the call of the lOlW, would
fly to the stoodard 01 the lOlW, and would meet invasions of the
public order as his own concern."-Thomas Jefferson, in his first Inaug1ral address.

Page

Duties and Powers of the Attorney General and the Department

of Law .. ._ __ .. _ _ __ _.. ._.._ _.._

.._ _........... 9

Organization and Expense of Operation of Law Department dur-

ing 1947 . _.. _._ _._. __.._

_ _ _ __ .. _

_

_ _. 10

Important cases Handled in 1947

__ ._~_. __..

11-16

Governorship Cases County Unit Case

__

__._.. ._. . . ..

.__ ._ _. .__..

~.

._

.__ I 1 .. _. 13

Jekyll Island Acquisition

. .__..

.

.. . ._ _._______ 13

The Klan and The Columbians

. . . . ._._. ._..__

15

The Ports Authority Case .

15

Railroad Tax Exemption Cases

..

.__ _ ._._.

16

Summary of Cases, Opinions, and Bills prepared for General As-

sembly during 1947

. . ..... ._.

._. .

17

Summary of Monies Accruing to the State through the Department

of Law in 1947

. ..__.

.. . ._. .. ... 18

Appendix Legal Division-Highway Department . ._. .._. ._. . .... __. 19

'Dedie4 ad p~ ~ de ;f"/~ ~ ad de 'D~ ~ ~aev.
Prior to the Reorganization Act of 1931 eelch State agency employed its own attorneys. The Attorney General's duties were limited to the few then specified in the Constitution and laws. By the Act of 1931 and later amendments, the Department of Law was created, the Attorney General was made its chief, the legal affairs of the State were entrusted to it, and, except in a few instances, employment of counsel by individual State agencies was prohibited.
Section 40-1614 of the Annotated Code of Georgia provides that: "The Department of Law is hereby vested with complete and exclusive authority and jurisdiction in all matters of law relating to every department of the State other than the judicial and legislative brMches thereof. The several departments, commissions, institutions, offices and boards of the State Government are hereby prohibited from employing counsel in any manner whatsoever."
The Governor is empowered, with the consent of the Attorney General, to employ special counsel where deemed necessary. This is done at times where highly specialized and technical knowledge is required, as in rate cases; where, for some reason, local counsel can more efficiently cope with local conditions, as in cases involving land titles; and in other cases, such as the recent gubernatorial controversy (Thompson vs. Talmadge, 201 Ga. 867), where limited time, the importance of the issue and like factors make additional counsel advisable for the best interest of the State. Such appointees are known as Deputy Assistant Attorneys General, and are appointed to deal with special cases or to represent special branches of the State Government for a limited time; but the bulk of the Stelte's legal affairs is handled by the comparatively small regular staff of the Department, which is largely responsible for the value of the Department to the State, as demonstrated by the figures contained herein.
In addition to actual litigation, the Attorney Generell has imposed upon him by Constitution and Code some forty-five specific duties, such as the approval of certain bonds and insurMce policies, acting as a member of the Department of Public Safety, the State Hospital Authority Md other agencies, the approval of contrelcts, the prepelration of deeds, and similar duties in relation to State business such as el lelwyer generelily performs for his client.
One of the most importelnt of his functions is complying with the requirement of law that he give his opinion to the Governor or the head of any Department of the State, when requested to do so, on any question of law connected with the interest of the State. Since these opinions guide
7

the State agencies in applying the law to the activities of their respective departments, the administration of which often vitally affects the public, they are prepared and released only after intensive research. These are known as "official" opinions, and are binding unless, if challenged in Court they are reversed by judicial decision, or unless legislative action makes them inapplicable.
The Department receives many inquiries from individuals in Georgia and other States, from municipal and county officials, from civic agencies, information bureaus, persons intending to enter business in Georgia, and others, as to the provisions a nd interpretations of Georg ia laws. Where no actual controversy or litigation is involved and the questioner is seeking only general information, the Department, as a matter of courtesy and service, replies to the question. Such opinions are known as "unofficial" opinions and are not regarded as authoritative or binding upon any person or department.
All official opinions are signed and released by the Attorney General. Unless so signed and released, opinions are unofficial.
The service given by unofficial opinions is not required by law. Georgia has no central information bureau such as exists in many States; and it is felt that the Department, in answering these questions, renders a necessary service to the citizens of our State and distributes information about Georgia to other States, and even to other countries.
As of December 3 I, 1947, the Law Department consisted of the following: The Attorney General 8 Assistant Attorneys General 6 Deputy Assistant Attorneys General 4 Law Clerks I Temporary Typist 9 Secretaries I Cashier-Bookkeeper I Reception ist I Porter The salaries of the Attorney General and of the Assistant Attorneys General are fixed by law-the Assistants receive $5,000.00 annually, and the Attorney General $7,500.00. Compensations for Deputy Assistants are fixed by the Governor. The total overall cost of operation of the Department in 1947, including traveling expenses, salaries, fees to all Deputy Assistants, and other expenditures, such as the Freight Rate Case,
8

was approximately $164,000.00. A detailed report on this expenditure is filed with the State Auditor, as required by law. A summary of monies accruing to the State through litigation of the Department in the single year 1947, as shown in detail on Page 18, clearly indicates how well the Department is made a financially self-sustaining Department of the State Government. The total of such monies as accrued from litigation in 1947 is $1,497,600.79, which, on a money-litigation basis alone would pay the expenses of the Department for approximately ten years, based on the 1947 expense outlay.
The State Government has forty-five State Departments and approximately sixty sub-agencies, each of which is dependent entirely upon the State Law Department for legal advice, opinions and litigation. The legal business of these Departmenls and sub-agencies is handled by the staff of the State Law Department under a procedure which requires research, experience and extensive acquaintance with the laws governing the different Departments and sub-agencies.
The hardest fought and most far-reaching cases prosecuted by the Attorney General in 1947 were what are commonly referred to as the "Governorship Cases." These cases flared into headlines throughout the world. They are sometimes spoken of as "Georgia's Dual Governorship Cases."
For sixty-three days two persons claimed executive power - M. E. Thompson and Herman Talmadge. The contest was settled at II :35 A. M. on March 19, 1947, in a 5-2 decision by the State Supreme Court in which it upheld the legal position maintained by the Attorney General and declared M. E. Thompson to be the Acting Governor, and deposed Herman Talmadge, who was in physical possession of the Governor's office.
Following the death of Governor-Elect Eugene Talmadge on December 21, 1946, before he could be inaugurated, a flurry of speculation was rampant over the question of who would succeed to the office to which Eugene Talmadge had been elected. Thompson, who had been elected Lieutenant Governor in the 1946 campaign, claimed the right to succeed to the office of Governor, and Talmadge supporters started a whirlwind campaign to have the 1947 Legislature elect the late governor-elect's son, Herman Talmadge, to fill the term his father had won. They predicated their campaign upon the theory that the General Assembly should elect Herman Talmadge on "write-in" votes cast for him in the November general election.
Ellis Gibbs Arnall, the incumbent Governor, requested an official ruling
9

(Under the time-honored right of "eminent domain," the State may assert its dominion over any part of the soil within its boundaries on account of
public exigency or for the public good.) (Code of 1933, 36-101 J.
On June 2, 1947, Acting Governor M. E. Thompson, Attorney General Eugene Cook and State Auditor B. E. Thrasher, Jr. took the first step to carry out the 1945 Legislature's wishes. They announced an investigation had been completed and agreed "unanimously" that it was "necessary and desirable" for the State of Georgia to obtain Jekyll Island and Latham Hammock Islands in Glynn County for use as a beach park.
On the same date, the Attorney General was unanimously directed by the condemnation committee, as authorized by the Legislature, to file proper condemnation proceedings to secure title and possession of the islands.
The committee stated that the owners of the island property (including numerous eastern millionaires, members of the Jekyll Island Club) had refused to sell voluntarily and that some unknown persons might have a claim on portions of the islands.
The Attorney General then advanced the acquisition by filing the original condemnation proceeding in the Superior Court of Glynn County, June 6, 1947. The defendant owners were named as: Jekyll Island Club, Incorporated; Miss Cornelia Maurice Wilkinson; Emily Maurice Dall; Margaret S. Maurice; Marion B. Maurice; Archibald S. Maurice; Mrs. Annie L. Wright; and Jekyll Annex Association of Glynn County, Georgia.
Superior Court Judge Gordon Knox ordered that the defendants and any other persons claiming any title or interest in any of the property appear before him on June 26 to make their claims of ownership and value and state any objections they might have to condemnation.
On June 10, the State amended its petition to ask also for condemnation of Latham Hammock Islands and added to the defendants the names of the owners.
After the owners filed demurrers and answers to the State action, the court confirmed selection of appraisers by the State and the owners of the island. The two then selected a third, disinterested appraiser, according to law.
The appra iser for the owners and the disinterested appraiser submitted an award of $850,000 for the property. The State appraiser's award was $675,000. Attorney General Cook objected to the majority award and filed an appeal to a jury and Judge Knox set a hearing for October 8, 1947.
The owners came down to the $675,000 award granted by the State's appraiser, and on October 4, 1947, Judge Knox issued the final condemnation decree and judgment in open court.
12

The Judge's order required the State to pay $675,000 to the Clerk of the Glynn County Superior Court, this sum to be distributed to the persons named in his order in the amounts designated by him.
In accordance with the order, State Auditor Thrasher issued a warrant on the State Treasury for the amount, and the Treasurer, George B. Hamilton, issued a check which was counter-signed by Comptroller General Zack D. Cravey.
The Attorney General dispatched the check by two assistants to the Superior Court Clerk, who in turn issued county treasury checks to the owners designated in the condemnation order.
The State then was given title and took possession of the island property in the final step of acquiring the beach park.
Thus the people's representatives in the Legislature, the courts, the Acting Governor, Attorney General, State Auditor, Comptroller General and State Treasurer executed the legal moves by which Georgia acquired the Atlantic islands.
Suits were filed against the Knights of the Ku Klux Klan, and against The Columbians, seeking to revoke the charters of incorporation granted by the State. Both these organizations advocated private use of police powers, tactics of intimidation against Negroes and Jews: and it was felt the sanction of the State government should not be loaned to such activities. As an incorporated organization, so long as there is no overt or provable violation of State law, and so long as the assemblies are peaceable, the State is, under existing law, helpless to prevent the continuance of the associations. However, they continue as unincorporated associations, no longer under the guise of chartered benevolent and fraternal organizations. The Law Department was successful in both suits in securing judgments revoking the charters of incorporation, it being found that the charters were secured by fraud in that the true purpose and activities of the corporations were other than those for which the charters were granted.
This was a suit brought by the Attorney General. to test the constitutionality of the Ports Authority to issue bonds on the State's credit. It involved approximately fifteen million dollars and many provisions of the Constitution having to do with the faith and credit of the State. After extended litigation the Supreme Court of Georgia held the Ports Authority statute to be unconstitutional and in violation of constitutional provisions against unauthorized State indebtedness.
13

These cases arose out of a dispute over the question of whether the Legislature had the power to immunize certain railroads from the payment of property and income taxes. One hundred years ago the Legislature, in granting these railroads charters, provided for perpetual tax exemptions against them. After considerable litigation in the Superior Courts and until final adjudication in the U. S. Supreme COUlt, the State of Georgia won the right to impose income taxes against these railroads. Upon the completion of these income tax cases the State collected approximately $225,000 and had established by law the right of the State to continue to collect income taxes from them. The issues to determine the question of the railroads as to liability for property taxes is now pending in the courts.
The foregoing cases are examples of the type of litigation the Attorney General's office handled in 1947. No attempt has been made to compile details on all litigation during that year. Suffice it to say, however, that these cases are outstanding examples of the effect litigation by the Attorney General's office has upon the social, economic and political welfare of the people of Georgia.
Among major cases handled by the State Law Department, bearing directly upon the economic, social and political welfare of the people of Georgia, which originated prior to 1947 and were partially or completely terminated in 1946, include the classic "Freight Rate Case"-State of Georgia 'Is. Pennsylv nia Railroad, et al; the "County Unit Case"-Earl P. Cook 'Is. Ben W. Fo son, Jr., et al; and the "White Primary Case"-Primus E. King 'Is. J. E. C pman, et al.
14

SUMMARY OF CASES, OPINIONS, AND BILLS PREPARED FOR MEMBERS OF
THE GENERAL ASSEMBLY DURING 1947

(See Appendix-Highway Department)

Total number of cases closed during 1947,

and pending as of December 31, 1947

_

Number of cases terminating favorably

to the State during 1947

_ _. __ .__ . . ..

_.......

222

.__

85

Number of cases terminating unfavorably

to the State during 1947 __.. _._.. .. .__.

. . ..

II

Number of cases settled after litigation

begun, or consent order taken ._ _

__ .__ _ 27

Number of potential cases settled without suiL_._._. __ _.. _ 2

Cases where suit not yet filed, but negotiations pending __

._ 2

Cases moot before decision of Court .

..

._._.... I

Cases withdrawn before trial ... _.... __._.... .__.

. .. _.__ 5

Cases pending as of December 3 I, 1947,

awa iting decision of Courts

.._ _ _.._. __.. __..__ 89

222

Number of official opinions given during 1947 . ....__ __. 343

Approximate number of unofficial opinions during 1947

_. 512

Number of bills prepared during 1947

for members of the General Assembly_._._ _._.._

_._ 585

15

SUMMARY OF MONIES ACCRUING TO THE STATE THROUGH LITIGATION OF

THE DEPARTMENT OF LAW IN 1947

(See Appendix-Highway Department)

Funds collected for the State through court action

$ 821,059.55

Funds saved to the State by winning in court, or settling

after court action begun, damage suits.............................. 561,974.92

Monies claimed by others, but awarded to the State by

the courts

_........ 114,566.32

TOTAL

_ $1,497,600.79**

**By adding to the $1,497,600.79-the amount of money actually saved and collected by the Department in other departments-the amount collected and saved in litigation, etc., in the State Highway Department, towit: $692,903.50, we have a total of $2,190,504.29 which represents as accurately as we can compute the total collections and savings for the State in actual litigations. The latter figure is explained in detail in the Appendix under Highway Department-Legal Division, where it is shown that the potential liability of the State Highway Department is placed at $726,923.50, as against $34,020 paid out by the Department as a result of successful litigation or negotiation by the Law Department.

The figures set out above represent the actual amounts involved in litigation. They do not begin to set out the true monetary value of the services of the Law Department to the State. Such value is almost impossible accurately to reckon.
Other cases which do not involve ascertained amounts are also of monetary value to Georgia citizens-for instance, prevention of the cancellation of Radio Station WGST's contract with Columbia Broadcasting System, prevention of issuance of invalid bonds by the Port Authority, and the freight rate case pending in the Supreme Court of the United States. The money accruing to the citizens of the State through the establishment of non-discriminatory transportation rates is practically incalculable.
Many of the cases comprising those producing revenues also established legal principles which will result in annual future revenue from the same source, as in the railroad tax exemption cases which netted the State in past due taxes over three quarters of a million dollars.
These monies accrued to the State and its people at a total overall cost of $164,000.00, the cost of operation of thl': Law Department in 1947.

16

REMARKS
Because of the voluminous amount of turnover in the State Highway Department involving legal matters handled by the State Law Department, the following brief resume is given special treatment in this report as a matter of information.
(Highway Department-Legal Division) Eugene Cook, Attorney General Henry N. Payton, Assistant Attorney General E. L. Reagan, Assistant Attorney General M. H. Blackshear, Jr., Assistant Attorney General The division of the State Law Department assigned to the State Highway Department, as now constituted, consists of three Assistant Attorneys General under the supervision of the Attorney General. Mr. Payton was assigned to the State Highway Department on May I, 1947, Mr. Reagan was assigned on February 15, 1948, and Mr. Blackshear was assigned on April I, 1948. Prior to the assignment of Mr. Reagan, Mr. R. A. McGraw was assigned and had been with the Department from May 15, 1947, until his sudden and untimely death on February 6, 1948. The Legal Department has many varied duties. Many of the duties are set out as follows: I. Advising with and furnishing legal counsel to the State Highway Commission and the Director of the State Highway Department. 2. Advising the many department heads of the State Highway Department on problems involving legal questions. The Legal Department is called upon on many occasions to confer with the Director and Department heads to discuss the problems which may involve future legal complications. 3. The Legal Department assists in the drawing of special contracts, leases, etc., and approves all contracts, insurance policies, leases and permits for he use of portions of the highway rights of way. 4. The Legal Department reviews all claims made upon the State Highway Department and makes investigations of such claims where necessary. This Department investigates all claims growing out of controversies between the Highway Department and any person, firm or corporation, as a result of breach of contracts, and bringing suits or defending suits which are filed as a result of such controversies. 5. The Legal Department must prepare and defend all suits against counties for damages resulting from defects In bridges and approaches
17

that are on the State-aid system, when the county vouches the State

Highway Department into court to defend such action as provided by law.

Such suits must be personally investigated by the Legal Department and

the evidence accumulated by the attorney handling the case.

*During the preceding eighteen months, the following suits have been

filed and handled or are now being handled by this Department.

Damage Suits

Total Amount of Suits

66

$1,059,829.67

The above 66 law suits are broken down as follows:

Now Pending

Number

Amount

Against State Highway DepartmenL _

16

$ 241,679.26

By State Highway DepartmenL
Cases Handled 1947-48

2

9\,226.91

Against State Highway DepartmenL

_..48

726,923.50

TOTAL Potential liability Potential asseL

__

66

.

_._.

$\ ,059,829.67 968,602.76 91,226.91

TOTAL

$1,059,829.67

CASES HANDLED-RECAPITULATION.

Number

Potential Liability

Amount Paid by State Highway Department

48

$726,923.50

*$34,020.00

*Of the amount of $34,020.00 paid out by the State Highway Depart-

ment, $17,000.00 was paid on three law suits for the amount of $138,828.48

that were handled by the Claims Committee. This deducted from the

above leaves 45 cases handled by the Law Department with a potential

liability of $588,095.02 which resulted in judgments or settlements for the

total sum of $17,020.00.

In addition to the above damage suits, the Legal Department has handled

a total of four claims on behalf of the State Highway Department totaling

$1,950.82, which total amount was collected; nine suits for injunction;

eight garnishment cases; reviewed, investigated where necessary and ap-

proved or disapproved a total of thirty-eight claims against the State

Highway Department. Assistance is also provided in numerous condemna-

tion suits for rights-of-way. This is a total of approximately 124 law suits

or potential law suits handled by the Legal Department during the eighteen

months period ending June 30, 1948.

In addition, this Department has reviewed and passed or otherwise acted

upon approximately 450 permits of various types and approximately 850 soil

pit options during the eighteen months immediately prior to June 30, 1948.

18