Compilation of Georgia laws and opinions of the attorney general relating to segregation of the races

COMPILATION

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GEORG: LAWS

It And OI'iNIONS OF THE ATTORNEY GENERAL

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Relating To

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SEGREGATION OF THE RACES

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EUGENE COOK

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The Attorney General

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State of Georgia

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Compiled and Edited by State Law Department

COMPILATION Of
GEORGIA LAWS And
OPINIONS OF THE ATTORNEY GENERAL Relating To
SEGREGATION OF THE RACES
EUGENE COOK The Attorney General
State of Georgia
Compiled and Edited by State Law :DepaNment
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FOREWORD
Herewith compiled and collected for the first time in one publication are the constitutional and statutory provisions of Georgia relating to segregation of the races, together with the more significant resolutions of the Georgia General Assembly and the more pertinent opinions of the Attorney General.
A perusal of the many segregation laws included herein, affecting as they do almost every phase of human endeavor to which the authority of government traditionally extends, convincingly demonstrates the predominant influence that racial segregation has exerted in the sociological development 'of the two races in this State.
In reliance upon the separate-but-equal doctrine early sustained in 1896 under the Fourteenth Amendment by the United States Supreme Court, the State of Georgia, as did numerous other states-Northern and Southern alike-instituted elaborate and costly educational and recreational facilities only to be informed fifty-eight years later that the only basis upon which they would have been established in the first instance is now illegal, not because the Court was wrong in 1896, but rather because the doctrine is presently out-moded under notions of sociology prevailing in the minds of nine judges, no one of whom has been received particular recognition even in the field of jurisprudence, much less in the field of social science.
Nothing could illustrate more vividly the wisdom of Stare Decisis heretofore applied by English and American judicial systems as a stabilizing influence in a world where other governments have periodically toppled, for experience has demonstrated that a rule of law long lived under creates a status, the displacement of which is more appropriately confided to the Legislature, with its facility for responding to the minute tremors of public feeling imperceptible to those confined in Ivory Towers of judicial seclusion.
In this respect, it is significant to note that no Civil Rights Legislation of any consequence has been enacted by the Congress since the Civil War Period; indeed, the tendency has been the other way, as evidenced by our present immigration laws, which are almost prohibitive of African immigration.
However, all is not lost, for the new judicial philosophy herein assailed offers its own hope: who knows but what a Supreme Court of tomorrow, dedi-
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cated to a different theory of sociology, may well find the 14th Amendment itself to be no longer tenable under the new ideas of the Social Planners.

Atlanta, Georgia April, 1956

Eugene Cook The Attorney General

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CONSTITUTIONAL PROVISIONS RELATING TO SEGREGATION
Public School Systems (Constitution, Art. VIII, Sec. 1, Par. I, Code Ann.
Supp. Sec. 2-6401).
"The provision of an adequate education for t~e citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided for by taxation. Separate schools shall be provided for the white and colored races."
NOTE: The Attorney General has ruled that if the segregation provision of the above paragraph is held void, the State will be unauthorized to tax for maintaining public schools. See "Opinions", herein, infra.
Property Tax Exemption Applies Only to Segregated Colleges.
(Constitution, Art. VII, Sec. 1, Par. IV; Code Ann., Sec. 2-5404).
"The General Assembly may, by law, exempt from taxation all public property; places of religious worship or burial; all institutions of purely public charity; all intangible personal property owned by or irrevocably held in trust for the exclusive benefit of, religious, educational and charitable institutions, no part of the net profit from the operation of which can inure to the benefit of any private person; all buildings erected for and used as a college, incorporated academy or other seminary of learning, and also all funds or property held or used as endowment by such colleges, incorporated academies or seminaries of learning, provided the same is not invested in real estate; and provided, further, that said exemptions shall only apply to such colleges, incorporated academies or other seminaries of learning as are open to the general public; provided further, that all endowments to institutions established for white people, shall be limited to white people, and all endowments to institutions established for colored people, shall be limited to colored people .."
NOTE: The same provision as above is made by statute; see Ga.' Code Ann. Supp., Sec. 92-201.
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Social Status of the Citizen: (Constitution, Art. I, Sec. I, Par. XVIII;
Code Ann. Sec. 2-118).
"The social status of tqe citizen shall never be the subject of legislation."

Grants For Education (Constitution, Art. VIII, Sec. XIII, Par. I;
Code Ann. Supp., 2-7502).
Notwithstanding any other provision of this Constitution, the General Assembly may by law provide for grants of State, county or municipal funds to citizens of the State for educational purposes, in discharge of all obligation of the State to provide adequate education for its citizens."
NOTE:. The above provision, sometimes referred to as the "Private School Amendment," was proposed in 1953 (Ga. Laws 1953, Nov.-Dec. Sess., p. 241) and ratified by the people in the November 1954 General Election.
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STATUTES AND LAWS RELATING TO SEGREGATION
APPROPRIATIONS ACT, 1956 (Ga. Laws 1956, pp. 753, 756)

EDUCATION

SECTION 7.

For matching vocational rehabilita-

tion funds in cooperation with the

Federal government; for operations

of vocational trade schools; for opera-

tions of public and rural library pro-

grams; for operatiOns of School for

Deaf and Academy for the Blind; for

grants for aid to the public common

schools under provisions of law; for

free textbooks for the children attend-

ing public common schools; for the

salaries of county schools superin-

tendents; for the operating costs of

the De par t men t; for educational

grantl\ as provided by law; and for

any and other expenses authorized

by law payable from the common

school fund

$122,100,000.00

Provided, that the State Board of Education shall within the first thir-

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ty days of each fiscal period make an apportionment of this appropriation, together with other funds available to the various activities of the Department of Education and immediately report the same to the State Budget Authorities for a p pro va 1, whose approval shall be evidenced. in writing. Provided, however, that the State Board of Education shall in each fiscal period make an allotment of not less than fourteen and one-half million dollars to pay the annual capital outlay commitments required under the lease contracts with the State School B u i 1din g Authority, this amount of appropriation for capital outlay purposes shall not be subject to reduction under Section 47 of this Act.
Provided, further, that the expenditure of the appropriation made in this section shall be subject to all provisions of the Constitution of Georgia and all budget regulations of general application which are or may be in force and effect.
Provided, further, that (a) the appropriations made in this section for the benefit of public schools are limited to the public schools within such school districts as shall provide separate schools for white and colored children throughout the entire district, and as is provided by Article VIII, Section I, Paragraph I of the Constitution of this State, and in which all the white and colored children attending public schools shall attend separate schools, the General Assembly declining to make any appropriation for the benefit of any other public schools. Funds apportioned or made available under this Section 7 for the benefit of the public schools within any school district shall be deemed to be separately appropriated to the public schools within such school district, and shall be separately subject to the limitation imposed by this subsection upon their use, which limitation shall be deemed to be a
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condition precedent to such appropriation. In any of the events provided by subsection (d) hereof said appropriation shall be null and void.
(b) No part of this appropriation shall be available until made available from time to time by written order of the State Budget Authorities.
(c) The State Board of Education within the first thirty days of each fiscal period, shall make an apportionment of the funds available to the Department of Education from this appropriation and all other sources, and upon written approval of said apportionment or any item thereof by the State Budget Authorities, the funds covered by the apportionment or item approved shall become available. Said Board shall have no power to include within such apportionment any funds for the benefit of public schools within any school district in which the public schools are operated in any manner other than that provided in subsection (a) above; nor shall the State Budget Authorities have any power to approve or make available any funds for such schools. If after the making and approval of any apportionment for the benefit of public schools within any school district such public schools shall thereafter be operated in any manner other than that provided in subsection (a) above, no further funds shall be paid from such apportionment.
(d) In the event of the prosecution 'to effective judgment of a suit in respect of any public school district resulting in determination by a court of competent jurisdiction that any portion of this Section 7 is unconstitutional, or that the public authorities in charge of the public schools within such district may not provide separate schools for the white and colored races within such school district as is required by Article VIII, Section I, Paragraph I of the Constitution of this State, and in the manner pro-
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vided by subsection (a) hereof, the State Board of Education shall have no power to make any apportionment for the benefit of any of the public schools within such school district, and the State Budget Authorities shall have no power to make any part of the appropriation provided in this Section 7 or any other funds available to or for the benefit of such public schools; and if such effective judgment shall occur after apportionment made to such public schools by the State Board of Education and order of the State Budget Authorities approving the same, no further funds from such apportionment to such public schools shall be paid by any officer of this State. The Governor shall by written order determine when any such judgment has become effective.
(e) After approval by the State Budget Authorities of an apportionment of the State Board of Education or any item thereof, any and all obligations and commitments in excess of the funds approved or violative of any of the provisions of this Section 7 shall be null and void, and the appropriations made in this Section 7 are subject to all provisions of the Constitution of this State and all budget requirements not inconsistent herewith nor or hereafter of general application.

SECTION 8.

(a) For the cost of operating the

State Board of Regents; for aid to

the University System; for annual

payment of $8,000.00 to the Univer-

sity of Georgia for old bank stock

items; for experimental purposes; for

the cost of use and/or acquiring ad-

ditions to plant and equipment for

the University System; and for cost

of operating the State Soil Conserva-

tion Committee an amount of not less

than $40,000.00

$ 17,100,000.00

Provided, however, that the Board

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of Regents shall allocate $100,000.00 out of the aforesaid sum to the Director of the College of Agriculture Experiment Stations for the express purpose of conducting research on poultry diseases.
Provided, that the above appropriations shall be in addition to the funds realized by the respective units in each fiscal year from Federal government, donations, gifts, earning from fees, rents, sales and any and all other sources of income.
Provided, that the State Board of Regents shall within the first thirty days of each fiscal period first make an apportionment of funds to the various units of the University System from all funds available in the amounts necessary in each fiscal year to pay the annual lease contract commitments for the acquisition of property and shall second, apportion the remaining funds available to the various units to cover cost incident to the operation and development of the University System. The State Board of Regents shall immediately report the same to the State Budget Authorities for approval, whose approval shall be evidenced in writing.
Provided, further, that no provision in this Act or other laws shall be construed as authorizing the reduction of or the voiding of any part of the appropriations made in this section which is required to be allotted each fiscal year to meet the annual payments required under the fixed lease contracts with the University System Building Authority for the acquisition of property.
Provided, further, that all expenditures or obligations authorized by the State Board of Regents or any agency thereof, regardless of the source of funds therefor, shall be governed by the Constitution of the State of Georgia and the laws and budget regulations of general application which are authorized by the General Assembly.
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Provided, further, that (a) the appropriations made in this Section 8 for the benefit of the State Board of Regents and the University System or otherwise, so far as the same relate to schools and colleges, are limited to schools and colleges providing separate education for the white and colored races, and operating in conformity to Article VIII, Section I, Paragraph I of the Constitution of this State, the General Assembly declining to appropriate funds for any school or college operating otherwise. Funds apportioned or made available under this Section 8 for the benefit of any school or college shall be deemed to be separately appropriated for the benefit of such school or college, and shall be separately subject to the limitation imposed by this subsection upon their use, which limitation shall be deemed to be a condition precedent to such appropriation. In any of the events provided by subsection (d) said appropriation s hall be null and void. Schools and colleges as used in this Section 8 shall include branches, departments and institutions of the University System, whether located at the State University at Athens or elsewhere, such as the School of Law, the School of Education, the School of Dentistry, the School of Medicine, each of which shall be deemed to be a separate school or college.
(b) No part of this appropriation nor any funds realized by the State Board of Regents or the University System or any school or college from the Federal Government or from donations, gifts, earnings, fees, rents, sales or from any other source of income, shall be available for use or expenditure until mad e available from time to time by written order of the State Budget Authorities.
(c) No funds appropriated by this Section 8 or derived from the sources of revenue referred to in subsection (b) hereof, shall be used or expended
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SECTION 48.

EDUCATION

(a) To supplement and become a part of appropriation provided for the State Board of Education for the educational purposes, including additional capital outlay funds and for all other purposes provided for under Section 7 of this Act.

Provided, however, that the supple-

ment authorized hereunder shall be

subject to all rules, regulations, re-

strictions and limitations set forth in

Section 7 of this Act with reference

to the regular appropriation for edu-

cational purposes, and especially that

portion relating to the maintenance

and operation of separate schools for

white and coloredraces

~ ,-$ 32,400,000.00

Before any of these funds shall be used for across the board increases or other extensions of the school program other than provided by the Minimum Foundation Program law, and after the Minimum Foundation Program is financed fully on an annual basis, the monies appropriated herein shall be :used to finance. the Minimum Foundation Program on a semi-annual basis as provided in Act No. 374 (Ga. Laws 1955, pages 601602) approved March 9, 1955.

NOTE: Similar provisions as to separation of the races are found in the Appropriations Act of 1953. (Ga. Laws 1953, Jan.-Feb. Sess., pp. 151-174.)

EDUCATION
County Boards of Education to Provide Separate Schools (Code, 32-909)
" ... It shall also be the duty of said board of education to make arrangements for the instruction of the children of the white and coloredtaces in separate schools. They shall as far as practicable, provide the same facilities for both races in respect to attainments and abilities . of teachers, but the children of the white and colored races shallnot be taught together in any common or public school. .."
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Colored and White Children Separate (Code, 32-937)
" . Colored and white children shall not attend the same schools; and no teacher receiving or teaching white and colored pupils in the same schools shall be allowed any compensation out of the common school fund. . . ."
PUBLIC SCHOOLS-SEPARATION OF RACES.
(Ga. Laws 1955, p. 174)
An Act to provide that no State or local funds shall be in any manner appropriated or expended for public school purposes except for schools in which the white and colored races are separately educated; to provide that no budget und.er Sections 32-619 and 32-620 of the Code of this State shall be approved which does not so provide; and to provide that no funds shall be expended for public schools within the district submitting such budget without approval of such budget; to provide punishment for violation of any of the provisions of this Act; to provide for recovery at law on behalf of the State for violation thereof; to provide that this Act shall apply to all public school systems in this State created at any time; to repeal conflicting laws; and for other purposes.
Section 1. Be it enacted by the General Assembly of Georgia, and it is hereby enacted by authority 'of the same, that no State orlocal funds derived from taxation or otherwise,shall be appropriated, paid out, used, or in any wise expended, directly or indirectly for the maintenance, upkeep, operation, or support of any public school district or system in this State which does not provide separate schools for white and colored children throughout the entire district or system and in which all the white and colored children attending public schools do not attend separate schools; nor shall any such money be appropriated, used, paid out, Of in any wise expended, directly or indirectly, for the payment of any salary or cc;>mpensation of any nature or character whatsoever to any teacher, instructor, employee or official of any public schooldistrict or system instructing mixed classes of white and colored children or in any wise concerned in the . ~ainte nance, upkeep,. support or .op,eration of any public school district or system whicl does not maintain and provide separate public schools for white and colored children throughout the, entire district or system and in which all the white and colored children attending public schools are not educated in
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separate schools; provided, however, that the provisions of this section shall not apply to the annual capital outlay funds allotted to the local school units as referred to in the General Appropriations Act approved February 20, 1953, or to any funds hereafter appropriated for capital outlay purposes, nor to funds for payment of principal or interest on any bonded indebtedness. (Code Ann. Supp., 322101b)
Section 2. Be it further enacted by the authority aforesaid, that no budget filed or submitted under Sections 32-619 and 32-620 of the Code of this State shall be approved by the State Board of Education, the State Superintendent of Schools, or other official, which does not provide that all items of proposed expenditure set forth therein shall lapse and become void in the event separate schools for white and colored children should not be maintained and operated in the school district, system or unit submitting such budget and throughout the entire district or system and in the event all the white and colored children attending the public schools thereof do not attend separate schools; and no public school system, district or unit in this State or any officer or employee thereof shall make any expenditure of any public funds for the maintenance or operation of such district, system or unit or any school therein until the budget referred to in said sections of the Code shall have been approved by the State Board of Education or the State Superintendent of Schools as provided in said Code Section 32-620; provided, however, said district, system or unit and the officials thereof shall in all events make payment of sums due the State School Building Authority and payment of principal and interest on any bonded indebtedness, the provisions of this section notwithstanding. (Code Ann. Supp., 32-2102b)
Section 3. Be it further enacted by the authority aforesaid, that any official of this State, or of any county, city or school district, system or unit, or any other person, who shall offend against any provision of this law, or aid or abet therein, or be in any wise therein concerned, shall be guilty of felony, and, upon conviction thereof, shall be confined in the penitentiary for a period of not less nor more than two years; and it shall be the duty of the Attorney-General to conduct the prosecution. (Code Ann. Supp., 32-9916).
Section 4. Be it further enacted by the authority aforesaid, that any official of this State, or of any county, city or school district, system or unit, who
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shall be in any wise concerned in paying 'out, 'using or in any wise 'expending any State or local funds contrary to 'the provisions of this law, shall be liable ror the amount so paid out, used or in any wise expended, which shall be recovered againsthhn in an action at law in the name Of the State, and the sureties on any official bond of such officer shall be likewise jointly and severally liable in such action, and the recovery shall be paid into the State treasury, it being the duty of the Attorney-General to institute such action upon direetion of the' Governor. (Code Ann. Supp., 32"2103b).
Section 5. Be it fUfther enacted by the authority aforesaid, that the provisions of this .i\.ct shall apply to all public lilchool systems in this State, including those maintained and operated by cou,nties and cities, including independent local systems, and all, public school systems wl).ether ,created before or after, the Constitution of 1877; and this Act shall apply to all counties and cities, and school districts within this State and all the officials thereof. (Code Ann. Supp., 32-2104b).
Section 6. Be it further enacted by the authority aforesaid, that all laws and parts' of laws in conflict herewith be, and the same are hereby repealed.
(Approved, February 11, 1955.)
CLOSING OF PUBLIC SCHOOL SYSTEMS. (Ga. Laws 1956, p. 6)
An Act to provide for closing the public schools in any county, city or independent school system; to provide for grants for educational purposes to the children of school age in any such county, city or independent school sYstem; to define the powers of the Governor hereunder, and with respect to closing such schools, protecting school property, and such grants;, to prescribe limitations with reference to the use of such grants and provide pu,nishment for violations thereof; to repeal conflicting laws; and for other purposes.
Be it enacted by the General Assembly of Georgia:
Section 1. That whenever the Governor shall ascertain that the public schools of any county, city or independent school district within this State are not entitled under the laws of this State to State funds for their maintenance and operation, or whenever the 'Governor shall ascertain that the public schools of any county, city or independent school district cannot be operated in such manner as shall
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@title such schools under the IIlWS of this State to State funds .for their maintenancellnd operation, he shall in eith~r such event by executive order, mllke public proclamation of the fact sO determined by him, and thereupon thepublic~uthol'ities of such coan,ty, city or )ndepend!mtschool district shall no longer be ,authorized to operate the public schools 0:1; such, .county, city or. independent. school district .afterJhe effective date named in such executive order; and the Governor shall by such executive order providEdor the closing of such schools and for the preservation and protection of .the school properties, and such public schools shall thereupon be closed and such properties 'pre~erved and protected as provided in such order. When the' public schools of any such county, city or independent school district shall be so closed, each child of school age resident within: "such' county, city or independent school district shall be. entitled each . year thereafter to i'eceive the benefit of an' educational grant from Stateahd local fUnds as provided hereby in discharge' of all obligation of' the State in respect of education. The Governor may order the public schools. of any county, c~ty Qr independent school .di.;str~,ct.dosed without closin~,the public. schools of an,y other county, city or independeI).t school district, and' he :may close the public schools of several counties, cities or independent school districts by one order.
Sectioi(2'. 'Thattheani6unt of streh grant to each such child shall be annually calculated as may be provided for by the order of the Governor; and shall be'payable from State funds in 'snchamount as shall represent the State funds annually expendable for the individual pupil under the provisions of State appropriations of force for public schools in the county; .City or 'independent SChool district wherein the child resides for the last entire school yearduring .which' the' public schools 'were open therein, together wfthsuchadditional amount as may be; provided under Section 5 hereof, and from local funds in such' amounta~f ,shall be arri've'd :at by dividing the local funds available' therefor by,the number of children ,pf school age resident in the county, city or iridepend~ni school di~trict;and every such coun. tY,city or independent school ,district' shall ,ha:ve .the same power and"authority l:\nd shall be under ,the same duty and ,rsponsibility to assess, levy ~d collect taxes. and appropriate. and expend the revenues therefrom for. the >purpose of making such" grants >8S oare.provided for by the Gonstitution .and law!! .in respect to the maintenance, operation and support of public schools.; Tl1e,fil'lilt,j)fsuc1l;calculations shall
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be made upon the entry of such executive order. and,

calculations thereafter. shan ,be made on the 'first

day of July of each ,year. The Governor shall. by

stich executive 'order prescribe rules' and regulations

for the administration of this section~ When by any

such executiveoroer the public schools of any coun-

ty, city or independent school district shall be closed

during a school year ,there shall be paid for the

benefit of the children enrolled ip such, schools prior to the closing thereof aneduc8:tional' ~rant for the

remainder .of such school year in like manner as

annual grants are prov:ided ',for .by 'this law; and

the executive order in such cases shalf proviM

therefor.

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Section 3. That no portion of any such grant may be expended for religious sectarian education and that any parent, guardian or other person having' custody of any child receiving any grant for the benefit of such child who shall expend the same or any portion thereof exc~pt .0'1' the education of such child as herein provided shall be guilty of a misdemeanor, and shall be punished uponconviction thereof as provided by law.
Section 4. That every child between his sixth and eighteenth,' birtlJ.days shal~ be dee~ed .to be of school age unless such child is incapable of receiving further. education or has already received an elementary and highschool education or their equivalent.

Section 5. That in calculating the grants as provided in Section 2 hereof, the Governor is authorized 'to include such additional amount as he may deem necessary for edueation, which amount shall be paid from appropriations made for such purposes by the General Assembly.
Section 6~ That alllaw,ll andpa~ts of laws, in conflict herewith be. and thf;l same are herebrepealed,
Approved February~, 1956.

LEASE OF' PUBLIC SCHOOL PROP~RTr.; ,(Ga. Laws 1956, p. 10).

An Act to provide for the leasing of.schQol prop~rty . of any county.~.city'or independent school system

for private educational purposes; t6 repeal con-

flicting laws; and for other purposes,

Be it'~n~cted by the 'General Assembly of Georgia:

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Section 1; 'That the various counties, cities, municipalities, county boards of education; city boards

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of education and governing bodies of independent school districts or systelinsof this State shall have authority to lease 'any schoolhouse or other school propenyfor private educational pu;rposes to any personj group of perSQns or corporation, which is or will be bona fide engaged in the operation of a private schoOl;.provided that said lease shall be for a period not lOnger than five (5) years.
,$ection .2. .That the .provisions of this' Act shall
apply to all public:school systems in thi~ State; including tho~e maintained and o;perated by counties and cities,. including independent local systems, and all public 'school systems whether created before or after the Constitution of 1877.
Section 3 .. That all laws and parts of laws in c~nflict with this Act are hereby repealed.
Approved February 6, 1956.
STATE SCHOOL BUILDING AUTHORITYLEASES.
(Ga. Laws 1956, p. 11)
An Act to amend an Act creating the State School Building Authority, approved February 19, 1951 (Ga.L. 1951, p. 241), so as toauthoriie the subleasing of any structure, building or facility of the Authority for private educational purposes; to repeal conflicting laws; and for other purposes.
Be it enacted by the General Assembly of Georgia:
Section 1. That an Act creating the State School Building Authority, approved February 19, 1951 (Ga. L. 1951, p. 241), is hereby amended by adding at the end of Paragraph (\')of Section 4 the sentence "Provided, however, nothing contained in this Act shall prevent sdchpolitical subdivisions, departments, institutions, agencies,cotmtyboards of education, city boards .of education .or governing bodies of independent school districts or systems from su1?les,sing any structure, building or facility of the Authority for private educational' purposes to any person, group of persons or corporation which is or will be bona fide engaged in the operation of a private sCh()ol", sothat when amended, Paragra,ph (5) ofSection 4 shall read as follows:
" (5) To make contracts, leases and to execute all instruments necessary or convenient, including contracts for construction of projectsahd' leases of projects or contracts with respeCt to the use of projects' which it causes. to be erected or acquired, and
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any and all political subdivisions, departments, institutions or agencies of the State are hereby authorized to enter into contracts, leases, or agreements with the Authority upon such terms and for such purposes as they deem advisable; and without limiting the generality of the above, authority is specifically granted to the county boards of education, city boards of education or governing bodies of independent districts or systems for and on behalf of the units and institutions within their respective counties, cities, or districts, and to the Authority to enter into contracts and lease agreements for the use of any structure, building or facilities of the Authority for a term not exceeding fifty (50) years, and the board of education or equivalent governing body for a.nd on behalf of the respective political subdivision may obligate itself and its successors to use only such structure, building or facility and none other and so long as said property is used by such political subdivision to pay an amount to be determined from year to year for the use of such property so leased, and also to obligate itself and its successors as a part of the lease contract, to pay the cost of maintaining, repairing and operating the property so leased from the Authority. Provided, however, nothing contained in this Act shall prevent such political subdivisions, departments, institutions, agencies, county boards of education, city boards of education or governing bodies of independent school districts or systems from subleasing any structure, building or facility of the Authority for private educational purposes to any person, group of persons or corporation which is or will be bona fide engaged in the operation of a private school."
Section 2. That all laws and parts of laws in conflict with this Act are hereby repealed.
Approved February 6, 1956.
TEACHERS' RETIREMENT SYSTEMAMENDMENT.
(Ga. Laws 1956, p. 13).
Code 32-2901 Amended).
An Act to amend the Act approved March 19, 1943 (Ga. L. 1943, p. 640) creating the Teachers' Retirement System as heretofore amended by providing for the admission of teachers in privatel~ operated nonsectarian schools to said system; to repeal conflicting laws; and for other purposes.
Be it enacted by the General Assembly of Georgia,
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and it is hereby enacted by.the authority of the same:
Section 1. That Subpll.ragraph 5 of Section 1 of the Act approved March 19, 1943, and set out in Georgia Laws 1943, pages 640 through 670, entitled "Teachers Retirement System," which Act is amended .by Act approved February 25, 1949, and set out in Georgia Laws 1949, pages 1505 through 1506, entitled "Teachers Retirement--Amendment," and further amended by the Act approved February 16, 1950, and set out in Georgia Laws 1950, pages 261 through 266, entitled "Teachers Retirement System-Amendments", and further amended by the Act approved January 5, 1954, and set out in Georgia Laws 1953 (November Session) page 470, which said Subparagraph 5 of Section 1 is set out in Subsection 5 of Section 32-2901 of the Code of 1933, be further amended by adding the following thereto: "In the event. any privately operated nonsectarian school and any teacher therein request the Board of Trustees to permit such school as employer and such teacher therein to make contributions as herein defined to provide such retirement benefits for such private school teacher, the board shall permit such teacher to come under the operation of this Chapter as a 'teacher', but the State shall make no contributions on account of such private school proved March 19, 1943, as amended by the Acts above stated, and said Subsection 5 of Code Section 32-2901 of the Code of 1933,as amended hereby will read as follows:
"(5) 'Teacher' shall mean any person employed not less than half time in the public day schools as a classroom teacher, or in a clerical capacity, or in the supervision of the public schools, or any employee of the State Board of Education or the State Board of Vocational Education employed in a teaching or supervisory or clerical capacity,or any bona fide teacher or supervisor of teachers or clerical employee in allY school operated by the State Department of Education, or any teacher or supervisor of teachers or clerical employee employed and paid by the Board of Regents of the University System of Georgia, and all personnel of the Agricultural Extension Service of the University of Georgia. The word 'teacher' shall also include school librarians,. and administrative officials who supervise teachers, and shall include registrars of each unit of the University System and shall include secretary and treasurer of the Board of Regents. The Board of Trustees shall determine in doubtful cases whether any person is a teacher, as defined in this Chapter.
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In the event the Georgia Educational Association and any full-time employee thereof. or the Georgia High School Association and any full-time employee thereof. or the Georgia Teacher Education Association and any full-time employee thereof. or the Georgia School Boards Association and any full~time employee thereof request the Board of Trustees to permit the Association as employer and such employee to make contributions as herein defined to provide retirement benefits for such employee, the boal'd may permit such employee to come under the operation of this Chapter as a teacher but the State shall make no contributions on account of sueh employee. The word 'teacher' shall not be deemed to include any emergency or temporary employee. In the event any privately operated nonsectarian school and any teacher therein request the Board of Trustees to permit such school as employer and such teaeher therein to make contributions as herein defined to provide such retirement benefits for such private school teacher, the board shall permit such teacher to come under the operation of this Chapter as a 'teacher', but the State shall make no contributions on account of such private school teacher."
Section 2. That all laws and parts of laws in conflict herewith be and the same are hereby repealed.
Approved February 6, 1956.
PRIVATE SCHOOLS-CERTIFICATES OF SAFETY (FIRE HAZARDS) (Ga. Laws 1956, p. 15).
An Act to prohibit the operation of any private school without a certificate from the state Fire Marshal that its buildings do not constitute a fire hazard; to declare the maintenance or operation of any school without such certificate a nuisance; to provide for the enforcement of this Act; to prescribe penalties for its violation; to repeal conflicting laws; and for other purposes.
Be it enacted by the General Assembly of Georgia, and it is hereby enacted by authority of the same:
Section 1. That no private school shall be operated within this State unlesS the person, group of persons or corporation operating the same or in charge thereof shall first obtain during the month of July of each year a certificate of the State Fire Marshal that the building or buildings in which such school is conducted have been inspected by him and do not constitute a fire hazard, which certificate it
23

shall be the duty of the State Fire Marshal to issue after inspection if the facts so authorize.
Section 2. That any person, group of persons or corporation operating any school without such certificate shall be guilty of a misdemeanor, and shall on conviction be punished as provided by law; and each day's maintenance or operation of any school without such certificate shall constitute a nuisance which may be abated as such by the superior court of the county in which the same is situated upon petition therefor filed in the name of the State by the Attorney-General.
Section 3. That all laws and parts of laws in conflict with the foregoing be and the same are hereby repealed.
Approved February 6, 1956.
HEALTH
Hospitals To Be Divided Into Apartments (Code, 35-225).
The Board of Control shall see that proper and distinct apartments are arranged for said patients, so that in no case shall Negroes and white persons be together, nor the penitentiary convicts with inmates of any other class; and males and females shall be kept separate.
LIBEL AND SLANDER
Charge of Intercouse With Person of Color (Code, 105-707).
Any charge or intimitation against a white female of having sexual intercourse with a person of color is slanderous without proof of special damage.
MISCEGENATION.
Miscegenation Prohibited. (Code, Sec. 53-106).
It shall be unlawful for a white person to marry anyone except a white person. Any marriage in violation of this section shall be void.
Colored Marriages. (Code, Sec. 53-212).
Ordained colored ministers of the gospel may celebrate marriages between persons of African descent only,under the same terms and regulations required by the law for marriages between white persons.
24

Registration of Individuals as to Race (Code, Sec. 53-301).
The State Board of Health shall prepare a form for the registration of individuals, whereon shall be given the racial composition of such individual, as Caucasian, Negro, Mongolian, West Indian, Asiatic Indian, Malay, or any mixture thereof, or any other non-Caucasian strains, and if there shall be any mixture, the racial composition of the parents and other ancestors in so far as ascertainable, so as to show in what generation such mixture occurred. Said form shall also give the date and place of birth of the registrant, name, race, and color of the parents of registrant, together with their place of birth if known, name of husband or wife of registrant, with his or her place of birth, names of children of registrant with their ages and place of residence, place of residence of registrants for the five years immediately preceding registration, and such other information as may be prescribed for identification by the Sta.te Board of Health.
NOTE: No appropriation to carry this Chapter into effect has been made.
False Registration Prohibited (Code, Sec. 53-306).
No person shall wilfully or knowingly make or cause to be made a registration certificate false as to color or race, and upon conviction thereof in such case the State Board of Health may change the registration certificate so that it will conform to the truth.
White Person Defined (Code, Sec. 53-312).
The term "white person" shall include only persons of the white or Caucasian race, who have no ascertainable trace of either Negro, African, West Indian, Asiatic Indian, Mongolian, Japanese, or Chinese blood in their veins. No person" anyone of whose ancestors has been duly registered with the State Bureau of Vital Statistics as a colored person or person of color, shall be deemed to be a white person.
Persons of Color (Code, Sec. 79-103).
All Negroes,plUlattoes, mestizos, and their descendants, having any ascertainable trace of either
25

Negro or African, West Indian, or Asiatic Indian blood in their veins, and all descendants of any person having either Negro or African, West Indian, or Asiatic Indian blood in his or her veins, shall be known in this State as persons of color.
Violations of Registration Law (Code, 53-313).
If any case of a marriage in violation of the provisions of this Chapter shall be reported to the State Board of Health, it shall investigate such report and shall turn over to the Attorney General the information obtained through such investigation.
Birth-White and Colored Parent (Code, 53-314).
When any birth certificate, showing the birth of a legitimate child to parents one of whom is white and one of whom is colored, shall be forwarded to the Bureau of Vital Statistics, it. shall be the duty of the State Board of Health to report the same to the Attorney General of the State, with full information concerning the same. Thereupon it shall be the duty of the Attorney General to institute criminal proceedings against the parents of such child for any violation of the provisions of this Chapter which may have been committed.
Duty of Attorney General (Code, 53-315).
It shall be the duty of the Attorney General of this State, as well as the duty of the solicitor general of the superior court where such violation shall occur, to prosecute each violation of any of the provisions of this Chapter, when the same shall be reported to him by the State Board of Health. If the Attorney General shall fail or refuse to prosecute any such violation so reported to him, the same shall be grounds for impeachment, and it shall be the duty of the State Board of Health to institute impeachment proceedings in such case.
Crime (Code, 53-9902).
If any officer shall knowingly issue a marriage license to persons, either of whom is of African descent and the other a white person, or if any officer or minister of the gospel shall join such persons in marriage, he shall be guilty of a misdemeanor.
26

Crime (Code, 53-9903).
Any person, white or colored, who shall marry or go through a marriage ceremony in violation of the provision of section 53-106 shall be guilty of a felony, and shall be punished by imprisonment in the penitentiary for not less than one year and not more than two years.
Crime (Code, 53-9904).
Any person who shall make or cause to be made a false statement as to race or color of himself or parents, in any application for a marriage license, shall be guilty of a felony, and shall be punished by imprisonment in the penitentiary for not less than two nor more than five years.
Crime (Code, 53-9905).
Any .civil officer, minister, or official of any church, sect, or religion, authorized to perform a marriage ceremony, who shall willfully or knowingly perform any marriage ceremony in violation of the terms of Chapter 53-3, shall be guilty of a misdemeanor.
Crime (Code, 53-9906).
Any person who shall refuse to execute the registration certificate as provided in Chapter 53-3, or who shall refuse to give the information required in the execution of the same, shall be guilty of a misdemeanor. Each such refusal shall constitute a separate offense.
Crime (Code, 53-990.7).
Any person who shall wilfully or knowingly make or cause to be made a registration certificate false as to color or race, in violation of section 53-306, shall be guilty of a felony and upon conviction thereof shall be punished by imprisonment in the penitentiary for not less than one year and not more than two years.
Crime (Code, 53-9908).
Any ordinary who shall issue a marriage license
27

without complying with each and every provision of Chapter 53-3 shall be guilty of and punished as for a misdemeanor.
PRISONS.
Cross Reference: See Training Schools, infra. Board of Corrections To Segregate Prisoners (Ga. Laws 1956, pp. 161, 173; Code Ann. Supp., 77-3 )
The Board of Corrections shall provide for the classification and segregation of prisoners with respect to race, age, first offenders, habitual criminals and incorrigibles, diseased inmates, mentally diseased inmates, and those having contagious, infectious and incurable diseases.
Confining White and Colored Prisoners Together (Code, 77-9904)
No person controlling convicts shall confine white and colored convicts together, or work them chained together, or chain them together going to or from their work, or at any other time. Any person and each member of a firm violating the provisions of this section shall be guilty of a misdemeanor.
NOTE: The use of chains, manacles, and other forms of shackles is no longer permitted in Georgia, having been abolished sometime prior to 1938. (See Ga. Laws 1937-38, Ex. Sess., p. 352; Ga. Laws 1956, pp. 161,174).
PUBLIC PROPERTY. TRESPASS ON PUBLIC PROPERTY.
(Ga. Laws 1956, p. 9)
An Act to provide that it shall be a misdemeanor for any person to enter upon any State-owned or operated property where such property has been closed to the public on executive order of the Governor, or by order of the department head having supervision over such property, or by any official having immediate supervision thereover; to provide that notice must first have been given of such closing and to define same; to repeal conflicting laws; and for other purposes.
Be it enacted by the General Assembly of Georgia:
Section 1. Any person who for any purpose shall enter upon any property owned, leased, or otherwise under the care, custody, control, supervision or operation of the State or any of its agencies, where
,28

such property has been closed to the public, by execu-. tive order of the Governor, or by order of the official in charge of the State agency or department having supervision over such property, or by oral or written order of the official or employee having immediate supervision over such property shall be guilty of a misdemeanor and punished as provided by law; provided however, that notice of such closing is first given to the public, either by posting of appropriate signs at the entrance to such property, or by actual communication to such person by the official in immediate supervision of such property, or his agents or employees. Provided however, this Act shall not apply to employees of the agency concerned authorized to enter the property for purposes of care, custody, maintenance or inspection.
Section 2. That all laws and parts of laws in conflict with this Act are hereby repealed.
Approved February 6, 1956.
DISPOSAL OF PUBLIC RECREATION FACILITIES.
(Ga. Laws 1956, p. 22)
An Act to authorize the State, or any county, municipal corporation or other political subdivision thereof to sell, lease, grant, exchange or otherwise dispose of any property or interest therein, comprising parks, playgrounds, golf courses, swimming pools, or other property which has been dedicated to a public use for recreational or .park purposes, or which has been dedicated to such a use by any private person or corporation and later acquired by the State, or any county, municipal corporation or other political subdivision thereof; to define the terms, conditions, and method of such disposal; to define what official shall have such right of disposal; to repeal conflicting laws; and for other purposes.
Be it enacted by the General Assembly of Georgia:
Section 1. Any general or local law to the contrary notwithstanding, the State or any municipal corporation, county or other political subdivision thereof, shall have authority to sell, lease, grant, exchange or otherwise dispose of aI).Y property or interest therein comprising parks, playgrounds, golf courses, swimming pools, or other property which has been dedicated to a public use for recreational or park purposes, or has been dedicated to a public use for recreational or park purposes by a private citizen, corporation, or association, and thereafter
29

acquired by the State, county, city, or other political subdivision thereof, without regard to whether said public use has been previously abandoned, or that said property has become unsuitable or inadequate for the purpose for which originally dedicated, said disposition to be on such terms and conditions as may be deemed desirable or necessary. Provided, however, that any lease under this Act shall be for a period not to exceed 5 years.
Section 2. Such sale, lease, grant or disposal shall be in the discretion of, and executed by:
a. The Governor, as to State property.
b. The county commissioners, or ordinary, or other governing authority, as the case may be, as to county property.
c. The mayor and council, or other governing authority, as to property of a municipal corporation.
Section 3. Any sale, lease, grant, exchange or other disposal of any property under the provisions of this Act shall be made only after advertising such sale in the newspaper in which Sheriff's advertisements are published for the county in which the land to be disposed of .lies, once a week for four weeks. Such advertisements shall describe the property, shall state the manner of disposition to be made, shall specify the time and place of such disposition, and shall state that same will be made to the highest bidder. In the event the property to be sold shall lie in more than one county, such advertisement shall be run once a week for four weeks in the newspapers in which sheriff's advertisements are published for all such counties. All sales and other dispositions made under the provisions of this Act shall be made to the highest and best bidder for cash after advertisement as herein provided. Provided, however, that the selling or disposing authority shall have the right to reject all bids in the event the high bid shall prove unsatisfactory for any reason, and said property shall then be readvertised and disposed of under the provisions above set out. All State property reqUired to be advertised under this bill shall also be advertised in two additional newspapers of general circulation in this State. Provided, however, the provisions of this Section shall not apply to the leasing of State parks or facilities therein if the lease involved is for a period of one year or less, nor shall the provisions of this Section apply to the exchange of State park property or interest therein on a dollar for dollar value basis. Provided, further,
30

no lease for a term of more than one year, and no exchange of State Park property shall be effective until the same shall be ratified by a two-thirds majority of the State Senate.
(Section 3 was amended by Ga. Laws 1956, p. 606 to read as set out above.)
Section 4. ~othing herein shall be construed as impairing the obligation of any contract provision, whether by way of reversionary clause or otherwise.
Section 5. All laws and parts of laws in conflict with this Act are hereby repealed.
Approved February 8, 1956.
PUBLIC SAFETY. (Ga. Laws 1956, p. 605).
An Act to amend an Act creating the Department of Public Safety and defining its d:uties and powers, approved March 19, 1937 (Ga. Laws 1937, p. 322) as amended, more particularly as amended by an Act approved February 7, 1950 (Ga. Laws 1950, p. 77) so as to provide that the State Patrol and Georgia Bureau .of Investigation shall enter any County or municipality, upon request of any citizen or official thereof, to make arrests and otherwise enforce any laws of this State requiring segregation or separation of the white and colored races in any manner or activity; to repeal conflicting laws; and for other purposes.
Be it enacted by the General Assembly of Georgia:
Section 1. An Act creating the Department of Public Safety and defining its duties and powers, approved March 19, 1937 (Ga. Laws 1937,p. 322) as amended, more particularly as amended by an Act approved February 7, 1950 (Ga. Laws 1950, p. 77) is hereby amended by adding to Section 14 thereof, as amended, relating to arrests by the State Patrol, immediately following the third (3rd) unnumbered Paragraph, the following:
"Notwithstanding the foregoing, it shall be the duty of members of the State Patrol and Agents of the Bureau of Investigation to enter any County or incorporated municipality for the purpose of making arrests and otherwise enforcing the law of this State requiring segregation or separation of the white and colored races in any manner or activity, when request therefor is made by any citizen or official of such County or municipality."
31

Section 2.
All laws and parts of laws in conflict with this Act are hereby repealed.
Peace Officer Retirement Benefits-Enforcement of Segregation Laws.
(Ga. Laws 1956, p. 314).
An Act to amend an "Act to provide revenue and a source of revenue for the purpose of paying annuities and benefits to the peace officers of the State of Georgia; to provide for a commission to receive and disburse such funds; to provide for a method of payment' of such fund to beneficiaries thereof, and for other purposes.", approved February 1, 1950 (Ga. L~ws 1950, p. 50), as amended by an Act approved February 21,1951 (Ga. Laws 1951, p. 472), an Act approved February 12, 1952 (Ga. Laws 1952, p: 81), an Act approved March 11, 1953 (Ga. Laws 1953, Jan.-Feb. session, p. 574), and an Act approved January 5, 1954 (Ga. Laws 1953, Nov.-Dec. Session, p. 488), and an Act approved March 3, 1955, (Ga. Laws 1955, p. 387) ,by providing that any peace officer, as therein defined, except wardens or prison guards of any State, County or City Public Works Camp or Prison, who fails or refuses to enforce any law of this State requiring segregation of the white and colored races in any manner or actiVity, shall forfeit all retirement benefits, all disability payments, and all death benefits, to which such peace officer or his beneficiaries would be entitled; to proVide for refund of funds actually paid into the fund by such peace officer; to proVide for notice and hearing; to repeal conflicting laws; and for other purposes.
Be it enacted by the General Assembly of Georgia:
Section 1.
An Act to provide revenue and a source of revenue for the purpose of paying annuities and benefits to the peace officers of the State of Georgia; to proVide for a commission to receive and disburse such funds; to provide for a method of payment of such fund to beneficiaries thereof, and for other purposes, approved February 1, 1950 (Ga. Laws 1950, p. 50), as amended by an Act approved February 21, 1951 (Ga. Laws 1951, p. 472), An Act approved February 12, 1952 (Ga. Laws 1952, p. 81), An Act approved March 11, 1953 (Ga. Laws 1953, Jan.-Feb. session, p. 574), ar. Act approved January
32
.. .. ~";.

5, 1954 (Ga. Laws 1953, Nov.-Dec. session, p. 488), and an Act approved March 3, 1955 (Ga. Laws 1955, p. 387), is hereby amended by adding thereto, as amended, a new Section to be known as Section 26 and to read as follows:
"(a) Any peace officer, as herein defined, except wardens or prison guards of any State, County or City Public Works Camp or Prison, who knowingly refuses or fails to attempt to enforce any law of this State requiring segregation or separation of the White and colored races in any manner or activity, or any such peace officer who knowingly fails to take any necessary or appropriate action for such enforcement thereof shall forfeit all retirement benefits, all disability payments, and all death benefits, to which such peace officer or his beneficiaries would have been otherwise entitled to under the provisions of this Act. or any amendments hereafter made; Provided, however, such peace officer or his beneficiaries shall be entitled to receive an amount equal to the contributions actually paid into such fund by such peace officer, under Section 9 of this Act, as amended, including 3% interest thereon.
(b) Any member or official of the Peace Officers Annuity and Benefit Fund or any other aggrieved person who may desire to institute charges against any member of the said Fund under this Section shall do so by filing written charges with the Board, which charges must be filed within six months from the date of the alleged dereliction; thereupon the Board shall serve upon any member a statement of the charges against him and notice of a hearing thereon to be heard at a time and place fixed in said notice, which shall be not less than ten (10) days after the date of service thereof. Such member shall have an opportunity to appear, be heard, and present his defense. The Board upon such hearing may administer oaths, examine and cross-examine witnesses, receive oral and documentary evidence and shall have the power to subpoena witnesses, compel their attendance and require the production of any and all papers, records, correspondence or other documents which may be relevant to the issue. If after such hearing the Board shall determine that such member has knowingly failed or refused to attempt to enforce any law of this State requiring segregation or separation of the white and colored races in any manner or activity or that such member has failed to take any necessary or appropriate action for such enforcement thereof, the Board shall order all retirement bendits, all disability payments, all death benefits and any other benefits to which
33

such member or his beneficiaries mayor would have been entitled to under the provisions of this Act or any amendments hereinafter made thereto forfeited. The decision of the Board shall be final.
Section 2.
All laws and parts of laws in conflict with this Act are hereby repealed.
PUBLIC REVENUE
Entry on Digest of Names of Colored Persons (Code, 92-6307)
The tax receivers shall place the names of the colored taxpayers, in each militia district of the county, upon the tax digest in alphabetical order. N ames of colored and white taxpayers shall be made out separately on the tax digest.
Returns of Taxes Paid by Colored People (Code, 92-6308)
The several receivers of tax returns and tax collectors in this State, or other officers performing similar duties, shall make a report to the Comptroller General of the character and amount of all taxes returned or paid by colored taxpayers in this State, and the Comptroller General in his annual report shall make a general exhibit of the character and amount of the taxes so returned.
Property Exempt From Taxation (Code Ann. Supp., 92-201)
The following described property shall be exempt from taxation, to wit: All public property; places of religious worship and burial, and all property owned by religious groups used only for single family residences and from which no income ,is derived; all institutions of purely public charity; hospitals not operated for the purpose of private or corporate profit and income; all buildings erected for and used as a college, nonprofit hospital, incorporated academy or other seminary of learning, and also all funds or property held or used as endowment by such colleges; nonprofit hospitals, incorporated academies or seminaries of learning, providing the same is not invested in real estate; and provided, further, that said exemptions shall only apply to such colleges; nonprofit hospitals, incorporated academies or other seminaries of learning as are open to the general public; Provided, further,
34

that all endowments to institutions established for white people, shall be limited to white people, and all endowments to institutions established for colored people, shall be limited to colored people; the real and personal estate of any public library, and that of any other literary association, used by or connected with such library; all books and philosophical apparatus and all paintings and statuary of any company or association, kept in a public hall and not held as merchandise or for purposes of sale or gain; provided the property so exempted be not used for the purpose of private or corporate profit and income, distributable to shareholders in corporations owning such property or to other owners of such property, and any income from such property is used exclusively for religious, educational and charitable purposes, or for either one or more of such purposes and for the purpose of maintaining and operating such institutions; this exemption shall not apply to real estate or buildings other than those used for the operation of such institution and which is rented, leased or otherwise used for the primary purpose of securing an income thereon; and also provided that such donations of property shall not be predicated upon an agreement, contract or otherwise that the donor or donors shall receive or retain any part of the net or gross income of the property farm, products, including baled cotton grown in this State and remaining in the hands of the producer, but not longer than for the year next after their production. The words, "institutions of purely public charity," "nonprofit hospitals," and "hospitals not operated for the purpose of private or corporate profit and income," shall mean and include such institutions or hospitals which may have incidental income from pay patients, provided such income, if any, is devoted exclusively to the charitable purpose of caring for patients who are unable to pay, and for the purpose of maintaining, operating and improving the facilities of such institutions and hospitals, and not directly or indirectly for distribution to shareholders in corporations owning such property, or to other owners of same.
TRAINING SCHOOLS
White and Colored Rlj.ces To Be Separated in
Boys Training School
(Code, 77-613)
The white and colored inmates shall be kept sepa-
rate and distinct in all work and study.
35

Colored Division of Training School Established (Code Ann. Supp., 77-701)
There shall be established in the State of Georgia an institution to be known as the Georgia Training School for Girls. The colored division of the Georgia Training School for Girls shall be located in Bibb County, Georgia, upon land donated to the State of Georgia for such purposes. The Governor shall accept a deed of gift from Bibb County, conveying land comprising approximately 131 acres, together with the buildings and improvements located thereon for use as the site of said division of said institution.
Support of Colored Training School (Code Ann. Supp. 77-707)
The Governor as Director of the Budget and the Budget CommissIon are hereby authorized to support and maintain the colored division of the Georgia Training School for Girls, created and established by section 77-701, and located in Bibb County, Georgia, out of any funds which may be available from the State Department of Public Welfare, and out of any other funds which might be available for the purpose in the discretion of the Budget Commission.
NOTE: The Colored Division of the Girls' Training School was established in 1937 (Ga. Laws 1937, p. 682) and is located in Macon, Bibb County, Georgia; the White Division is located in Atlanta, Fulton County, Georgia. The Boys Training School for both colored and white, is located in Milledgeville, Baldwin County, Georgia, although a few colored inmates are maintained in Augusta, Richmond County, Georgia, adjoining the School for Mental Defectives.
TRANSPORTATION
Duty of Carriers to Furnish Equal Accommodations (Code, 18-205)
Com m 0 n carriers of passenger for hire shall furnish like and equal accommodations to all persons, without distinction of race, color, or previous condition.
Failure to Furnish Equal Accommodations to All (Code, 18-9901)
Any officer, employee, or agent of a common carrier of passengers for hire, or persons who are common carriers, who shall violate the provisions of
36

section 18-205, shall be punished as for a misdemeanor.

Separate Cars or Compartments for White and Colored Passengers; Seats; Lights; Ventilation. (Code, 18-206)
Railroad companies doing business in this State shall furnish equal accommodations, in separate cars or compartments of cars, for white and colored passengers, and when a car is divided into compartIllents, the space set apart for white and colored passengers respectively may be proportionedaccording to the proportion of usual and ordinary travel by each on the railroad or line on wh~ch the cars are used. Such companies shall furnish to the passengers comfortable seats and shall have the cars well and sufficiently lighted and ventilated. Officers or employees having charge of railroad cars shall not allow white anq colored passengers to occupy the same car or compartment.

AllowingWhite and Colored Passengers to Occupy Same Car or Compartment. (Code, 18-9902)

Any officer or emplOyee having charge' ~f rail-

road cars, who shalrviohitethe provisions of section

18-206, prohibiting such officer or employee from

allowing white and colored passengers to occupy

the same car or compartment, shall be guilty of a

misdemeanor.

.' .

Duty to Assig~ Passengers to Their Cars; Police
Powers of Conductors.' , (Code, 18-207)

All conductors or other employees in charge of passenger' cars shall assign all passengers to their respective cars,' or compartments of cars, provided' by the said companies under the provisions of section' 18-206 and all conductors o:f street cars and busses shall assign all passengers to' seats on the cars under their charge, so as to separate the white arid colored races as much as practicable; and all conductors and other employees of railroads and all conductors of street cars and busses shall have, and are hereby invested with, police powers to carry out said provisions.

Remaining in Seat,. Compartmellt or Car Other Than to Which Assigned. (Code, 18-208)
NO'passe:ttger shall remaill in allY car, ,eOIllpart-
37

ment, or seat, other than that to which he has been assigned. The conductor and any and all employees on such cars are clothed with power to eject from the train or car any passenger who refuses to remain in the car, compartment or seat assigned to him.
Passenger Remaining in Car, Compartment or Seat Other Than that to Which Assigned (Code, 18-9904)
Any passenger violating the provision of section 18-208, prohibiting any passenger from remaining in any car, compartment, or seat other than that to which he has been assigned, shall be guilty of a misdemeanor.
Nurses and Servants Excluded From Operation of Law
(Code, 18-209)
The provisions of the preceding three sections shall not apply to colored nurses or servants in attendance on their employers.
White and Colored Passengers On Sleeping Cars To .Be Se})arated (Code, 18-210)
Sleeping-car companies and railroad companies operating sleeping cars in this State shall have the right to assign all passengers to seats and berths under their charge, and shall separate the white and colored races in making said assignments, and the
conductor and othereIl1ployees 011 the train to which
sleeping cars may be attached shall not permit white and colored passeJlgers. to occupy the same compartment: Provided, that nothing in this section shall be construed to compel sleeping-car companies or railroad,! operating sleeping cars to carry persons of color in sleeping or parlor cars: Provided, that this section shall not .apply to colored nurses or servants traveling with their employers. A conductor or other employee of a sleeping car, as well as a conductor or other employee of the train to which a sleeping car may be attached, shall have full police power to enforce this section.
Employee Failing to Assist in Ejecting Passenger From Sleeping-Car (Code, 18-9906)
A conductor or other employee of a sleeping car, or of a train carrying sleeping cars, who shall fail
38

or refuse to assist in ejecting a passenger violating the provisions of section 18-210 shall be guilty of 3 misdemeanor.
SEPARATE ACCOMMODATIONS FOR WHITE AND COLORED PASSENGERS (Ga. Laws, 1956, p. 685).
An Act to require that all common carriers of passengers for hire in intrastate travel providing waiting room and reception room facilities, shall provide separate accommodations for white and colored passengers traveling in intrastate travel; to prescribe misdemeanor punishment therefor; to provide for injunction; to repeal conflicting laws; and for other purposes.
Be it enacted by the General Assembly of Georgia:
Section 1.
That all common carriers of passengers for hire providing waiting room and reception room facilities,shall provide separate accommodations for white and colored passengers traveling in intrastate travel, as follows:
(a) For white passengers traveling in intrastate travel, a separate waiting or reception room sha.ll be provided, above the entrance of which shall be painted or shown in bold letters the words, "WHITE WAITING ROOM INTRASTATE PASSENGERS."
(b) For all other passengers traveling in intrastate or interstate travel, a separate waiting or reception room shall be provided, above the entrance of which shall be painted or shown in bold letters: "WAITING ROOM, INTERSTATKPASSENGERS AND COLORED INTRASTATE PASSENGERS."
(c) There shall also be provided, where such accommodations are furnished, separate toilets and separate facilities for drinking water for colored passengers and separate toilets and separate facilities for drinking water for white passengers: Provided, that the separate toilets and separate facilities for drinking water for all white passengers may be provided as a part of or in connection with the separate waiting room for white intrastate passengers."
Section 2.
Any common carrier violating the prOVISIons of this Act shall be guilty of a misdemeanor and punished as provided therefor by law.
39
, .....

Section 3.
Each day that such carrier refuses or fails to
comply with this Act shall be considered a separate
and distinct offense.
Section 4.
The Solicitor General of the Circuit wherein a violation of this Act occurs may institute action in the superior court to enjoin such violation, without regard to whether such violation would, under general principles of law, constitute a nuisance.
Section 4A.
Each prOVISIon of this Act is separately enacted and if any section or provision thereof shall be held to be unconstitutional or invalid for any reason, the remaining portions shall be unaffected. If this Act or any section or provision of this Act shall be held to be invalid or unconstitutional. as applied to' any person or group of persons, the ,same shan continue of full force and effect with respect to another persons and groups of persons. If this Act or any section or provision of this Act shall be held to be invalid or unconstitutional in relation to any circumstances or set of circumstances, th!! same spaJ1 continue of full force and effect as to all other circumstances, situations, and facts and circumstances.
Section 5.
All laws or parts of laws in, conflict with this Act-be and the same are hereby repealed.
SEPARATE WAITING ROOMS
(Ga. Laws 1956, p. 673).';
An Act to require that all persons tra-veling in intra, state travel occupy or use only the waiting rooms marked and' provided for such persons; to pre-
scribe misdemeanor punishment for a violation of this Act; to l'epeal conflicting laws; and for other purposes;
Be, it enacted by the General Assembly of Georgia:
Section 1.
All white or colored passengers traveling in intrastate travel on any common carrier of passengers for hire. shall. QCCUPY' or use., only the waiting room or reception room provided and de!!ignated for their respective, races, and no suell white" pas-
40

senger shall occupy any waiting or reception room other than that marked or designated "White Waiting Room, Intrastate Passengers," and no such colored passenger shall occupy or use any waiting or reception room other than that marked and designated "Waiting Room-Interstate Passengers -Colored Intrastate Passengers:" Provided, that nothing herein contained shall prevent any white interstate passenger from using or occupying the waiting room set apart for white intrastate pass~n gers.
Section 2.
Any person violating the provisions of this Act shall be guilty of a misdemeanor and punished as provided therefore by law.
Section 3.
No action for false arrest, false imprisonment, or other action shall be entertained by any court of this State against any law enforcement officer or other person for an arrestor imprisonment arising out of a violation 9f this Act.
Section 4.
All laws or parts of laws in conflict with this Act be and the .~ameare hereby repealed. .
In
RESOLUTIONS OF THE GENERAL ASSEMBLY RELATING TO SEGREGATION
THE INTERPOSITION RESOLUTION (HR 185, R. Act No. 130; Ga. Laws 1956, p. 642).
A RESOLUTION
A Resolution to declare the Supreme Court ~eci
sions of May 17, 1954 and May 31, 1955, in the school segregation cases, and all similar decisions, by theSupretrie Court null,void and of no effect; to declare that a contest of powers has arisen between the State of Georgia and the Supreme Court of the United States; to invoke the doctrine of inter- . position; and for other purposes.
Be it resolved by. the H;ol,lse of Repr~sentatives, the Senate concurring, That the General Assembly of Georgia doth -hereby .unequivocally express a firm and determined :resolution to maintain and de-
fend the ConstitutiOn of the United States, and the
41

Constitution of this State against every attempt, whether foreign or domestic, to undermine and destroy the fundamental principles, embodied in our basic law, by which the liberty of the people and the sovereignty of the States, in their proper spheres, have been long protected and assured;
That the General Assembly of Georgia doth explicitly and pre-emptorily declare that it views the powers of the Federal Government as resulting solely from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument creating that compact;
That the General Assembly of Georgia asserts that the powers of the Federal Government are valid only to the extent that these powers have been enumerated in the compact to which the various States assented originally and to which the States have assented in subsequent amendments validly adopted and ratified;
That the very nature of this basic compact, apparent upon its face, is that the ratifying States, parties thereto, have agreed voluntarily to surrender certain of their sovereign rights, but only certain of these sovereign rights, to a Federal Government thus constituted; and that all powers not delegated to the United States by the Constitution, nor prohibitedby it to the States, have been reserved to the States respectively, or to the people;
That the State of Georgia has at no time surrendered to the General Government its right to maintain racially separate public schools and other public facilities;
That the State of Georgia, in ratifying the Fourteenth Amendment to the Constitution, did not agree, nor did the other States ratifying the Fourteenth Amendment agree, that the power to operate racially separate public schools and other facilities was to be prohibited to them thereby;
And as evidence of such understanding, the General Assembly of Georgia notes that the very Congress that submitted the Fourteenth Amendment for ratification established separate schools in the District of Columbia and that in more than one instance the same State Legislatures that ratified the Fourteenth Amendment also provided for systems of racially separate public schools;
That. the General Assembly of Georgia denies that the Supreme Court of the United States had the. right which it asserted in the school cases de-
42

cided by it on May 17, 1954, to enlarge the language and meaning of the compact by the States in an effort to withdraw from the States powers reserved to them and as daily exercised by them for almost a century;
That a question of contested power has arisen; the Supreme Court of the United States asserts, for its part, that the States did in fact prohibit unto themselves the power to maintain racially separate public institutions and the State of Georgia, for its part, asserts that it and its sister States have never surrendered such right;
That this assertion upon the part of the Supreme Court of the United States, accompanied by threats of coercion and. compulsion against the sovereign States of this Union, constitutes a deliberate, palpable, and dangerous attempt by the Court to prohibit to the States certain rights and powers never surrendered by them;
That the General Assembly of Georgia asserts that whenever the General Government attempts to engage in the deliberate, palpable and dangerous exercise of powers not granted to it, the States who are parties to the compact have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights and liberties appertaining to them;
That failure on the part of this State thus to assert its clear rights would be construed as acquiescence in the surrender thereof; and that such submissive acquiescence to the seizure of one right would in the end lead to the surrender of all rights, and inevitably to the consolidation of the States into one sovereignty, contrary to the sacred compact by which this Union of States was created;
That the question of contested power asserted in this resolution is not within the province of the Court to determine because the Court itself seeks to usurp the powers which have been reserved to the States, and, therefore, under these circumstances, the judgment of all of the parties to the compact must be sought to resolve the question. The Supreme Court is not a party to the compact, but a creature of the compact and the question of contested power should not be settled by the creature seeking to usurp the power, but by the parties to the compact who are the people of the respective States in whom ultimate sovereignty finally reposes;
That the legislation making provision for grants
43

for the benefit of children of school age for educational purposes, as authorized by. the Amendment ratified by the people at the General Election held in November, 1954, whereby Section 13 was added to Article VIII of the Georgia Constitution, will enable the people themselves to provide an educational establishment serviceable and satisfactory and in keeping with the social structure of the State, if the doctrine of said school- cases of May 17, 1954, is eventually by naked force alone thrust upon this State;
That the doctrine of said decisions should not be forced upon the people of this State, and the public schools terminated thereby, for, the Court was without jurisdiction, power or authority to entertain said school cases, or to announce the doctrine therein asserted by it;
That the Court was Without jurisdiction of said cases because (1) the jurisdiction of the Court granted by the Constitution is limited to judicial cases in law and equity, and said cases were not of a judicial nature and character, nor did they involve controversies in law or equity, but, on the contrary, the great subjects of the controversy are of a legislative ~haracter, and not a judicial character, and are determinable only by the people themselves speaking through their legislative bodies; (2) the essential nature and effect of the proceedings relating exclusively to public schools operated by and under the authority of States, and pursuant to State laws and regulations, said cases were suits against the States, and the Supreme Court was without pow~r or authority to try said cases, brought by individuals against States, because the Constitution forbids the Court to entertain suits by individuals against a State unless the State has consented to be sued;
That if said Court had had jurisdiction and authority to try and determine said cases, it was powerless to interfere with the operation of the public schools of States, because the Constitution of the United States does not confer upon the General Government any power or authority over such schools or over the subject of education, jurisdiction over these matters being reserved to the States, nor did the States by the Fourteenth Amendment authorize any interference on the part of the Judicial Department or any other department of the Federal GOTernment with the operation by the States of such public schools as they might in their discretion see fit to establish and operate;
44

That by said cases the Court announces its power to adjudge State laws unconstitutional upon the basis of the Court's opinion of such laws as tested by rules of the inexact and speculative theories of psychological knowledge, which power and authority is beyond the jurisdiction of said Court;
That if the Court is permitted to exercise the power to judge the nature and effect of a law by supposed principles of psychological theory, and to hold the statute or Constitution of a State unconstitutional because of the opinions of the Judges as to its suitability, the States will have been destroyed, and the indestructible Union of Indestructible States established by the Constitution of the United States will have ceased to exist, and in its stead the Court will have created, without jurisdiction or authority from the people, one central government of total power;
That implementing its decision of May 17, 1954, said Court on May 31, 1955, upon further consideration of said cases, said: "All provisions of Federal, State, or local law ..... must yield" to said decision of May 17, 1954; said Court thereby presuming arrogantly to give orders to the State of Georgia:
That it is clear that said Court has deliberately resolved to disobey the Constitution of the United States, and to flout and defy the Supreme Law of the Land;
That the State of Georgia has the right to operate and maintain a public school system utilizing such educational methods therein as in her judgment are conductive to the welfare of those to be educated and the people of the State generally, this being a governmental responsibility which the State has assumed lawfully, and her rights in this respect have not in any wise been delegated to the Central Government, but, on the contrary, she and the other States have reserved such matters to themselves by the terms of the Tenth Amendment. Being possessed of this lawful right, the State of Georgia is possessed of power to repel every unlawful interference therewith;
That the duty and responsibility of protecting life, property and the priceless possessions of freedom rests upon the Government of Georgia as to all those within her territorial limits. The State alone has this responsibility. Laboring under this high obligation she is possessed of the means to effectuate it. It is the duty of the State in flagrant cases such as this to interpose its powers between its
45

people and the effort of said Court to assert an unlawful dominion over them;
Therefore, be it further resolved by the House of Representatives, the Senate concurring:
First: That said decisions and orders of the Supreme Court of the United States relating to separation of the races in the public institutions of a State as announced and promulgated by said Court on May 17, 1954, and May 31, 1955, are null, void and of no force or effect;
Second: That hereby there is declared the firm intention of this State to take all appropriate measures honorably and constitutionally available to the State, to avoid this illegal encroachment upon the rights of her people;
Third: That we urged upon our sister States firm and deliberate efforts upon their part to check this and further encroachment on the part of the General Government, and on the part of said Court through judicial legislation, upon the reserved powers of all the States, that by united efforts the States may be preserved;
Fourth: That a copy of this Resolution be transmitted by His Excellency The Governor to the Governor and Legislature of each of the other States, to the President of the United States, to each of the Houses of Congress, to Georgia's Representatives and Senators in the Congress, and to the Supreme Court of the United States for its information.
(Approved March 9, 1956.)
RESOLUTION CREATING GEORGIA COMMISSION ON EDUCATION
(Ga. Laws 1953 Nov.-Dec. Sess., pp. 64-67)
A Resolution.
To establish The Georgia Commission on Education, to define its duties and authority, and to provide therefor such funds as are necessary to effectuate the purposes hereof.
Whereas, the Constitution of the State provides for separate education of the white and colored races, and
Whereas, necessity for further legislation or constitutional amendmellts in that regard might hert:after arise;
It is therefore resolved by the Senate and House of Representatives as follows:
46

One. The Georgia Commission on Education is hereby established.
Two. Said commission shall formulate a plan or plans of legislation, prepare drafts of suggested laws, and recommend courses of action for consideration by the General Assembly whereby the State may by taxation continue to provide adequate education for all its citizens consistent with the provisions of the Constitution of the United States and the Constitution of the State of Georgia. (Code Ann. Supp., 32-3101.)
Three. Said commission shall be composed of the Governor, Lieutenant-Governor, Speaker of the House of Representatives, State Auditor, the Attorney General, Chairman of the Board of Regents, Chairman of the State Board of Education, State School Superintendent, Chancellor of the University System of Georgia, Chairman of the Judicial Council; a representative from the Georgia Bar Association, and, representative of the State both geographically and in all segments of her economy, ten other citizens to be appointed by the Governor, one from each congressional district of the State. (Code Ann. Supp., 32-3102.)
Four. The Governor shall be chairman of said commission and shall designate another member of the commission as vice-chairman. Said commission shall perfect its organization conformable to the provisions of this resolution and may appoint subcommittees. Seven members of the commission shall constitute a quorum for the transaction of any business of the commission. (Code Ann. Supp., 32-3103.)
Five. Said commission shall submit its findings and proposed plan of legislation with its accompanying draft of suggested laws and its comments thereon, to any extraordinary session of this General Assembly which may be hereafter held, and if no such session be held, then to the meeting of the General Assembly to convene on the second Monday in January, 1955. (Code Ann. Supp., 32-3104.)
Six. Said commission is hereby directed to cause its findings, proposed plan of legislation, accompanying drafts of suggested laws, and its comments thereon to be printed and distributed to the members of the General Assembly and to the press not less than thirty days prior to the meeting of the General Assembly to convene on the second Monday in January 1955, and in the event of an extraordinary session, as great a number of days as feasible prior
47

to the convening of such extraordinary session. (Code Ann. Supp., 32-3105.)
Seven. Said commission is directed to inquire into the educational structure of the State, and all pertinent provisions of the Constitution and statutes of the State, as well as the Constitutionand laws of the United States; to receive suggestions and statements from interested persons; and to make such other investigation and inquiry as will in its judgment assist in the discharge. of the duties confided to it. Said commission is authorized from time to time to print and distribute reports of its findings and recommendations. (Code Ann. Supp., 32-3106.)
Eight. .The chairman of said commission is authorized to assign quarters and to employ such help, technical assistants and legal counsel to aid the commission in the performance of its duties as he may deem proper, and to fix their compensation. (Code Ann. Supp.; . 32-3107.)
Nine. The members of said commission shall receive the same compensation and allowances for each day they are in attendance at the meetings of the commission as are received by members of the General Assembly for each day's attendance upon a session of the General Assembly, plus any other compensation, per diem, allowance or reimbursement that is now provided by law for members of the General Assembly. (Code Ann. Supp., 32-3108.)
Ten. Such funds as are necessary to effectuate the purposes of this resolution shall be made available by the Bureau of the Budget from moneys appropriated for the operation of the General Assembly and from such other funds as the Bureau of the Budget may from time to time transfer to said commission. (Code Ann. Supp., 32-3109.
Eleven. The duties and authority of said commission shall be continuing until terminated by law. (Code Ann. Supp., 32-3110,)
(Approved December 10, 1953.)
RESOLUTION OF 1955 CONTINUING IN EFFECT GEORGIA COMMISSION ON EDUCATION (Ga. Laws 1955, p. 395).
A Resolution.
To amend the resolution, approved December 10, 1953 establishing the Georgia Commission on Education, defining its duties and authority and providing funds therefor; so as to direct said commission to
48

, submit ,findings and drafts Of;suggelited:laws;to

each session of the General Assembly'beld' dUlling

the continuance of said conimisili6n'~alidsoas to

authorize said commission to priht and distribute

bulletins and period~cals ,~nger the direction of

the chairman; and for other purposes.

Whereas,. legislation in re~peetof'education .may

be riec~ssary at, stibseq1,lent 'sel:\sioJ;ls, of the General

Assembly, and

.",

Wh~reas,. public information. ~m the subject, is

desirable and in the public irite,rest;' . , , ' .

.

.. -

i ' '. ~ :

It is therefore resolved b:r the'. SJ3nate arid House

of Representatives as follows: .;"",'

i ,',

One. The resolution approved Deceniber 10, 1953, and entitled "A resolution to establish theGeorgia Commission on Education, to define its duties lJ.nd authority, and to provide therefor shchfun9S as are
necessary to effectuate the purposel'l' thereof:", 'i\J
he'reby amended by adding two additional seCtions to be known as Sections Twelve and' Thirteen,'as
follows, to wit;

"Twelve. Said commi,ssion is directed to subll1~ttci
~ach session of the General' Assembiy hereafter held and until such time as said ~oinhi~~si6n' shall b~

terminated as provided in Sec~ion 'Eleven, drafts Of

suggested laws with reference to 'education for 'the

consideration of the General Assembly, together

with comments of the commission thereon; and the

same shall be printed and distributed at each such

session to the members of the General Assembly,

and to the public and the press." (Code An:il. Supp.,

32-3111.)

,

'

"Thirteen. Said commission, as, authorized by the chairman, may from time to time print and dis. tribute to the members of the General Assembly" and to the public and the press, such bulletins. and periodicals as may be prepared under the direction of said commission and deemed info'rmatWeof lega.t and factual situations which may from time to tim~ develop in this and other States in respect of, education; and as directed by the chairman said co.m,mission may cooperate with other States in printing and distributing such bulletins and periodicals." (Code Ann. Supp., 32-3112.)

(Approved March 3, 1955.)

49

RESOLUTION PROPOSING AMENDMENT TO FEDERAL CONSTITUTION GIVING STATE EXCLUSIVE AUTHORITY OVER SCHOOLS (Ga. Laws 1955, p. 4)
A Resolution.
Memorializing Congress to call a convention for the considering of an amendment to the Constitution of the United States relative to the operation of State schools.
Whereas, the National Government, through the use of various funds and agencies has greatly eneroached, directly and indirectly, upon the operation of the State schools; and
Whereas, the operation of State schools is, and should remain, an exclusive State function; and
Whereas, the continued exercise of various means and methods by the National Government in controlling the operation of State schools tends to encroach upon an exclusive State right;
Now, therefore, be it resolved by the General Assembly of Georgia, that the legislature of the State of Qeorgia respectfully petition the Congress of the trnited States to call a convention for the purpose of proposing the following Article as an Amendment to the Constitution of the United States:
"Article
"Section 1. Notwithstanding any provision in this Constitution, nothing shall, in any way, take away from, or in any manner deprive, the right of the several States of the Union to operate their school systems, and to have exclusive and complete power to regulate and to determine the rules and regulations for the conduct and operation of State schools.
"Section 2. Nothing herein shall prohibit any State from accepting aid in any form from the National Government.
"Section 3. This amendment shall be effective upon ratification by three-fourths of the several States."
Be it further resolved, that the Congress of the United States be, and it hereby is, requested to provide as to the mode of ratification, that said amendment shall be valid to all intents and purposes, as part of the Constitution of the United States, when ratified by the legislatures of three-fourths of the several States.
50

Be it further resolved, that a duly attested copy of this resolution be immediately transmitted to the Secretary of the Senate of the United States, the Clerk of the House of Representatives of the United States, and to each member of the Congress from the State of Georgia.
(Approved January 31, 1955.)
RESOLUTION PROPOSING AMENDMENT TO FEDERAL CONSTITUTION GIVING STATE EXCLUSIVE AUTHORITY OVER SCHOOLS (Ga. Laws 1955, p. 9.)
A Resolution.
Memorializing Congress to call a convention for the purpose of considering an amendment to the Constitution of the United States relative to the administration by the several States of their respective school systems.
Whereas, recent decisions of the Supreme Court of the United States have tended to withdraw from the sovereign States the power to administer their respective school systems in a fashion never contemplated by the ratifiers of the Fourteenth Amendment; and
Whereas, this unconscionable usurpation of power, if not restricted, will ultimately :result in the destruction of every vestige of State supported and regulated public education.
Now, therefore, be it resolved by the House of Representatives, the Senate concurring, that the General Assembly of Georgia respectfully petition the Congress of the United States to call a convention for the purpose of proposing the following Article as an amendment to the Constitution of the United States:
"Article-
"Section 1. Anything in this Constitution to the contrary notwithstanding, the several States shall have exclusive authority to regulate, administer and operate their respective educational systems as they may deem necessary and proper, and neither the Congress, the President, nor anything in this Constitution shall in anywise interfere therewith or otherwise affect same.
"Section 2. The Supreme Court, the several District Courts and Courts of Appeal, and any and all other Federal judicial tribunals, quasi-judicial tri-
51

States, and to each member of the Congress from the State of Georgia.
(Approved February 8, 1955.)
HONORABLE E. L. FORRESTER COMMENDED. (Ga. Laws 1955, p. 673).
A Resolution.
Commending Congressman E. L. Forrester for his sponsoring of legislation circumscribing the jurisdiction of the Federal courts and urging upon Congress the passage of such legislation.
Whereas, it has been brought to the attention of this General Assembly that Honorable E. L. Forrester, United States Congressman from the Third District of Georgia, has introduced in Congress certain remedial legislation circumscribing the jurisdiction of the Federal judiciary in cases involving the administration by the sovereign States of their respective school systems; and
Whereas, it is now apparent to this body that for public education to retain its historic, constitutional status as a State function, some curtailment must, ex necessitate, be imposed upon the Federal courts, more particularly the Vnited States Supreme Court; and
Whereas, the unwarranted judicial interference by the Federal judiciary into the local affairs of the several States can only result in their gradual extinction.
Now, therefore, be it resolved by the House of Representatives, the Senate concurring, that this General Assembly does respectfully commend Congressman Forrester for his worthwhile endeavor and earnestly urges the enactment by the Congress of Congressman Forrester's bill.
Be it further resolved, that a copy of these presents be forthwith dispatched to Congressman Forrester, the President of the Senate and Speaker of the House of Representatives, and to every member of the Georgia Delegation to Congress.
(Approved March 7, 1955.)
NOTE: The bill above referred to is HR. 3769. As to the authority of Congress to limit the appellate jurisdiction of the Supreme Court, see Cook, PInning The Tail of Restraint on The Federal Courts (1955) Ga. Bar Journal, Vol. XVII, No.4, p. 442. See also "Georgia Department of Law, Opinions of the Attorney General," Vol. 2, No.1, January 15, 1955.
54

JUDGE JOHN H. DRUFFEL COMMENDED (R. Act. 17; Ga. Laws, 1956, p. 2381.)
A Resolution.
Commending Honorable John H. Druffel, United States District Judge for the Southern District of Ohio, for his statesmanship in refusing to supinely surrender to the absurd directives of the Sixth Circuit Court of Appeals.
Whereas, it has been brought to the attention of this General Assembly that the Honorable John H. Druffel, United States District Judge for the Southern District of Ohio, has on January 5, 1955, indicated his determination to ignore the absurd directives of the Sixth Circuit Court of Appeals in ordering him to "frame decrees providing for immediate desegregation of the public schools in Hillsboro, Ohio"; and
Whereas, such an injudicious order by the Sixth Circuit Court of Appeals represents an unwarranted interference with a Chancellor's discretion, and constitutes a dictatorial assertion of power by ambitious members of the intermediate federal judiciary cognizant of the unfortunate reality that qualification for the United States Supreme Court under the present administration is more a matter of political allegiance to socialism and the NAACP than of legal ability; and
Whereas, as a result thereof, Judge Druffel has been the recipient of unrelenting abuse and ridicule by the Communists, the NAACP, and other whitehating groups; and
Whereas, such patriotism and judicial statesmanship should not go unnoticed:
Now, therefore, be it resolved by the House of Representatives, the Senate concurring, that this General Assembly express its profoundest respect and admiration for Judge Druffel, as aforesaid.
Be it further resolved that a copy of these presents be forthwith transmitted to Judge Druffel..
(Approved February 13, 1956.)
FEDERAL AID TO EDUCATION OPPOSED (R. Act. 67; Ga. Laws 1956, p.397.)
A Resolution.
To urge the Georgia Congressional Delegation to oppose the passage of "H. R. 7636", and for other purposes.
66

Whereas, there is now pending in the Congress of the United States H. R. 7535, also known as the "Federal Aid for Education Bill"; and
Whereas, there is no provision in the Constitution of the United States delegating the power to Congress or to any branch of the Federal Government to operate or support a public school system, this right and power being reserved and guaranteed to the several States to operate, support and maintain its public schools as each State shall so determine and decide; and
Whereas, the passage of said Act would be construed as a confirmation of the infamous decision of the United States Supreme Court of May 17, 1954, and would tend to destroy the sovereign rights of the several States to operate their public school systems without untoward interference by the Federal Government; and
Whereas, Congress has no constitutional authority, power or right to appropriate money to operate or support schools within the States, and no constitutional authority, right or power to use tax money to pay suchan appropriation; and
Whereas, said bill calls for an expenditure of two billion ($2,000,000,000.00) dollars which is not presently expended by our Federal Government, and to secure this money would necessitate either more taxes, no tax reductions, or a slower process of debt retirement, and
Whereas, Congress could reduce taxes and release that amount for possible taxation ..by the several States, whereby the States could then finance their own school construction as is now being done in Georgia.
Whereas, said Bill is but another attempt of the Federal Government to encroach upon the rights of the several States and centralize all powers in the Federal Government. If our Republic is to survive the sovereignty of the several States must be preserved as was laid down in our. Constitution by the founding fathers of this great nation.
Now, Therefore, be. it resolved by the General Assembly of Georgia~ that the Georgia Congressional Delegation be urged by this body to vigorously oppose H. R. 7535, any companion bill, substitute or counterpart, thereof.
Be it further .resolved that the. Clerk .of the House of Representatives is hereby directed to transmit a
56

copy of this resolution to each of the members of the Georgia Congressional Delegation.
(Approved February 28, 1956.)
NOTE: By lengthy opinion of March, 1955, to Hon. Phil Landrum, United States Congressman from Georgia, the Attorney General recommended against support of the proposed federal aid to education bills, on the ground that by administrative action, funds might conceivably be cut off as to states maintaining segregation.
Miscellaneous Resolutions Relating to Segregation and States' Rights
1. Ga. Laws 1955, p. 327, proposing constitutional : ,amendment to federal constitution so as to provide an alternative method of amending the Federal Constitution, i.e., without the intervention of Congress.
2. Ga. Laws 1955, p. 336, memorializing the Georgia Congressional Delegation to support the Bricker Amendment, the Resolution declaring that "the history of tyranny has not been one of transgression against liberty by the Legislature but rather by tb,e executive branch of government."
3. House Resolution No. 152, 1955 Session of Geor., gia General Assembly, urging the Senate to withhold confirmation of John M. Harlan as a member of the United States Supreme Court. As this was a privileged resolution, it is not printed in the Georgia Session Laws.
4. House Resolution No. 37, R. Act No. 148 (Ga. Laws 1956, p. 815) expressing opposition of the General Assembly to Federal Aid to Education.
5. House Resolution 235, R. Act No. 150 (Ga. Laws 1956, p. 3486) commending Georgia Congressman John J. Flynt, Jr., for his speech before the joint session of the Legislature in 1956, recommending interposition.
6. House Resolution 231, R. Act 51, (Ga. Laws .1956, p. 2718) commending Georgia Congressman Carl Vinson. for introducing in Congress an amendment to' the Federal Constitution preserving States' Rights.
7: House Resolution 62, R. Act 4, (Ga. Laws 1956, 'p. 110) creating a committee to visit other states to study and discuss c6mmon problems, particularly relating to segregation of the races.
8. House Resolution 51"R. Act 14, (Ga. Laws 1956,
57

p. 126) censuring United States Attorney General Brownell and the F. B. I. for conducting an unwarranted investigation of the jury system in Cobb County relative to Reece v. Georgia, 100 L. Ed. (Advance, p. 109), decided December 5, 1955.
9. Senate Bill 98, Act 29 (Ga. Laws 1956, p. 38) providing a new state flag, which adopts partially the design of the Confederate flag.

IV

OPINIONS OF THE ATTORNEY GENERAL RELATING TO SEGREGATION.

OPINION HOLDING THAT STATE IS WITHOUT POWER TO TAX FOR UNSEGREGATED SCHOOLS

(Also Reported In 17 Ga. Bar Journal 174.)

OFFICE OF THE GOVERNOR

Atlanta

Herman E. Talmadge

Hazel G. Kelley

Governor

Secretary

September 14, 1954

Honorable Eugene Cook, The Attorney General, Department of Law, State Capitol, Atlanta, Georgia.

Dear Mr. Cook:

Please give me your official opinion with respect to the following:

'1. Under the Constitution of this State, can taxes be levied by either the State or any local unit of. government, for the support of mixed
. schools of white and colored students?

2. Under the Constitution of this State, can public funds of the State or any local unit of government be expended for such purpose?

3. If by action of the judicial department of the Federal Government, the races are ordered mixed in the public schools, could funds of the State or any local unit of government be expended for the purpose of supporting the schools in which the races were mixed pursuant to such Federal action?

Sincerely yours, Herman E. Talmadge, Governor.

58

THE DEPARTMENT OF LAW State Of Georgia Atlanta
September 27, 1954
Honorable Herman E. Talmadge Governor of Georgia State Capitol Atlanta, Georgia
Dear Governor Talmadge:
I am pleased to acknowledge your recent request as to whether the Constitution of Georgia permits taxes to be levied by either the State or any local unit of government for the support of mixed schools of white and colored students, and whether publie funds of .the State or any local unit of government could be expended for such purpose in the light of the recent decision of the Supreme Court of the United States on segregation in the public schools. The following opinIon is limited to the common schools as distinguished from the University System.
I
TAXATION FOR FREE MIXED COMMON SCHOOLS
The key provision of the Georgia Constitution on commo1-1 schools is found in Article VIII, Section I, Paragraph I (2-6401~, which provides as follows:
"System of common schools; free tuition; separation of races.-The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the e~pense of which shall be provided for by taxation. Separate schools shall be provided for the white and colored races."
All of the constitutionaL provisions on taxation by the State and local units of government are manifestly related to the above Section which authorizes the establishment of free segregated common.schools, and provides that they will be supported by taxation. The other constitutional provisions relating to the purposes of taxation do not of themselves afford authority for the establishment of such schools. In 84C; J. S. 42, 4, it is held that:
"Constitutional provisions with respect to taxation constitute a limitation on the legislative power and not a grant al JI'O'Wer."

As to count,i~s;.J\,J'ticleVII, Section:IV, Paragraph I (2-5701) provid~s as foll\>ws:
UTaxing power of: counties.-The General Ass~mbly shall not have power to delegate to any 'county the right to levy a tax for any purpose, except:

"3. For educational purposes upon property located outside of independent school systems, as provided in Article VIII of this Constitution." .: (Emphasis supplied.)
:In my opinIon, the words u as provided in Articl~
VIlli' refer to two points, one being the first section '*IVch authorizes the establishment of free segre~ gated common schools, and the other to the seventh section. ;Which p~ovides' that counties shall levy a ta~fbr support and m~intenance of education not l~ss than five mills lior greater than fifteen mills UPOIi the dollar 01 taxable property in the county' Ibcated outside the independ~nt school system. In
Itly ()pinion; the 'right of the' county to tax is con-
ditioned upon the provision of Article VIII, Section I, i.e., a free segregated cdmmon school system.

The ~ral .A:ssembly's'taxing power is found in

Article VII, Section U",P~ragr~ph I (2-5501), which

provides in part as follows:

, uTa:i:dtwn, "how an~ fOr. what purposes e{l)er-
'ci8ed.__The~o~~r.so:ttaxationoverthe whole" St~te'shallb~e~erci~ed by the General Assembly

.. f01;, Flle:follo,lfin,gpufposIlS only:

'

(

' ... ' . ,

,

.:'2. For ediI~tip~ll1.purposes.",

In' reference t(f the Jower of the legishlture to tax for '''educatlonal p'u~p'o~es/' the' SupremeCotirt' of
Georgia, in Smith v. toWeft, 160 Ga. 268, 271, said:

.:d "Now the' klgislatute cali provide for the

'tElaching of, any branches of education in the

"public school's' 'Of this State; 'and these schools

,: ~atI bemaintainMby taxation within the limits

, I and 'Upon the: (JOnditionS prescribed in' the Gon-

''.iJtitutiotI asnow'-a:mended." See also Worthv.

t"B'Ofird'1'Ed'flA:fitiun, 177 Ga. 166, 175.

f,t . ' . .", : . ~':':i ~ ~'~I:.....

'..

..

It is abundantly 'cl#,al1 that the power of,the State,:

to tax for educational purposes is conditioned

upon the,',const1tUtional :provision authoruing" the

establishmen.t! ofu free, segxegated common schools,

Article VIIf" Section, L\" '

I

, The same result applies to the right to expend funds for common schools. The right exists in the provision of Article VIII,. Section I, authorizing the establishment of an adequate education in free segre~ gated common schools.
The answer to all of your questions depends upon a constructio~ of Article VIII, Section I, in the light of the recent School Segregation Decision by the Supreme Court of the United States. If the second sentence of Article VIII, Section I, should be declared to be unconstitutional, what effect would this have on the first sentence which authorizes the establishment of an adequate education in free common schools? Is the first sentence so interrelated to the second that both must stand or fall together, or are they separable? If the latter (separable) is correct, the answer to all of your questions would be yes-State and local units of government could tax and expend funds for mixed schools. If the former (interrelated) is correct, there would be no constitutional authority for any free public school system; therefore, neither the State nor local units of government could tax or expend funds for mixed schools.
II
CONSTRUCTION OF ARTICLE VIII, SECTION I -SEPARABILITY
If we assume that the Supreme Court decision in the public school segregation cases, Brown et al. 'V. Board of Education of Topeka, 344 U. S. 1, 97 L. Ed. 3 has resulted in the invalidation of the last sentence of Article VIII, Section I, the question here is whether or not the entire section must therefore fall, or whether the first sentence, which provides:
"The provision of an adequate education for the citizens shall be a primary obligation of the State of Georgia, the expense of which shall be provided for by taxation."
may stand alone.
If the entire section falls, clearly, there is nothing left in the Constitution that permits the State to maintain a public system of common schools.
In Elliot 'V. State, 91 Ga. 694, the Court had under consideration an act, which, by its title, sought to prohibit the selling of "spirituous liquors." The body of the Act, however, undertook to prohibit the
61

sale of "intoxicating liquors", a phrase of somewhat broader connotation than that contained in the title. In holding the statute invalid as containing matter in the body not expressed in the title, the Court said:
"2. Where the whole legislative intent as embraced in one and the same verbal expression contained in a penal statute cannot be enforced, because unconstitutional in part, the other part will not be enforced unless it is reasonably certain that to enforce the latter as a separate and independent scheme or measure, would correspond with the legislative will and purpose. In the present instance, it does not appear that the legislature designed or was willing to prohibit the sale of 'spirituous liquors' except as part and parcel of the broader scheme of prohibiting the sale of all 'intoxicating liquors.' This broader scheme being unconstitutional because differing from the title of the act, must necessarily fail; and as it is one and indivisible, all its parts fail with it."
In Papworth v. State, 103 Ga. 36 (2), an Act passed in 1877 had legalized the sale of wines all over the State. Subsequently, in 1879, a special Act was passed prohibiting the sale of all spirituous or intoxicating liquors within Irwin County. The Court found no trouble in holding that the local Act insofar as it related to wines, was clearly in conflict with the general law, and thenceforth proceeded to hold that the entire Act must fail, as by its terms the legislative intent was to prohibit the sale of all such beverages, and there was nothing to indicate that the Legislature would have intended or contemplated that the Act have a less comprehensive scope.
In Reynolds v. State, 181 Ga. 547 (2), the Court had under review the Alcoholic Beverage Control Act of 1935, which contained a referendum provision for submitting the Act to a vote by the people to determine whether it should go into effect. The Court held that the referendum provision was invalid, for reasons immaterial here. The question then arose as to whether the entire Act must fall, for otherwise the Act would automatically become of force and effect without a referendum. The Court determined that the very fact that a referendum provision had been included in the Act manifested a clear legislative intent that the people decide whether the Act should go into effect, for otherwise the General Assembly could have merely passed the
62

Act without the referendum clause, and accomplish the very thing which would result in the Court's sustaining part of the Act. See also Dorsey v. Clark, 183 Ga. 304; Cone v. State, 184 Ga. 316 (1b).
This principle of statutory construction has been repeated many times by the Georgia Courts in varying phraseology. Mattox v. State, 115 Ga. 212, 215 (where invalid part of minor importance, rest of Act not affected); Bass v. Lawrence, 124 Ga. 75, 77; Lippitt v. Albany, 131 Ga. 629 (4) (so long as legislative seheme not defeated); Glover v. State, 126 Ga. 594, 608 (so long as effect given to legislative scheme, except as to matters of minor importance); Irvin v. Gregory, 86 Ga. 605, 614 (so long as main purpose of statute not defeated). See also Wright v. Southern Bell Telephone & Telegraph Co., 127 Ga. 227 (2) ; Moseley v. State, 176 Ga. 889; Davis v. State, 204 Ga. 467, 471; Cain v. Smith, 117 Ga. 902. The general rule is well in accord with the foregoing. See 82 C. J. S. 153, 92; Crawford, Statutory Construction, 144, p. 216.
The Supreme Court of the United States has, in many instances, also followed this rule. In Myers v. Anderson, 238 U. S. 368, 59 L. E. 1349, a Maryland statute had conferred the right to vote on all male citizens of Annapolis who fell into one of three classes:
(1) All taxpayers assessed at $500.00 or more.
(2) All duly naturalized citizens.
(3) All natural born citizens who (in effect) were entitled to vote prior to adoption of the Fifteenth Amendment to the Federal Constitution, and all male descendants thereof.
(1) Where the provisions as a whole plainly and expressly establish the dependency, of the one upon the other, thereby rendering it necessary to conclude that both must disappear as a result of the destruction of either.
(2) Where, although the above did not exist, retention of one would result in a condition so extreme and so incongruous as to leave no doubt that such was the legislative intention, although not expressly stated.
Applying this last principle, the Court noted that should the first and second provisions remain alone, the anomalous situation would result wherein a natural born citizen could not vote unless he owned property to the value or $500.00, while naturalized citizens would be entitled to vote without this quaIi-
63

fication. The Court therefore concluded that the entire statute must fall.
In the cla~sic case of Carter 'I). Carter Coal Co., 298 U. S. 238, 58 S. Ct. 855, 80 L. Ed. 1160, the Court had under consideration the Bituminous Coal Act, which broadly embraced two subjects, viz., the regulation of wages, and the setting of minimum prices. The wage provisions fell under the due process clause, and the remaining question was whether the price fixing provisions could stand in view of a so-called "separability" clause. In spite of this expressly enacted rule of construction, the Court concluded that the two features were so interrelated that the purpose of the Act could not be achieved by elimination of one and retention of the other. In so doing, one test was prescribed which seems very appropriate to the instant situation, in view of the historical background of education presented elsewhere herein. At page 313, the Court declared:
"Perhaps a fair approach to a solution of the problepl is to suppose that while the bill was pending in Congress a motion to strike out the labor provisions had prevailed, and.to inquire whether, in that event, the statutes should be so construed as to justify the conclusion that Congress, notwithstanding, probably would not have passed the price-fixing provisions of the code."
The Supreme Court has in the past uniformly adhered to this rule of construction. Allen 'I). Louisiana, 103 U. S. 80, 26 L. E. 318; Southwestern Oil Company 'I). Texas, 217 U. S. 114, 30 S. Ct. 496, 54 L. E. 688; Williams 'I). Standard Oil Co., 278 U. S. 235, 49 S. Ct. 115, 60 ALR 596, 73 L. E. 287; Champlin Ref. Co. 'I). Corporation Commission, 286 U. S. 210, 52 S. Ct. 559, 86 ALR 403, 76 L. E. 1062.
It is believed that the most representative test formulated by the cases is found in Dorchy 'I). Kansas, 274 U. S. 286,44 S. Ct. 323, 68 L. E. 686, where it was held that the valid part of an otherwise invalid act would be upheld when,
1. Effect could be given to the valid part standing alone, i.e., enforcement, and,
2. The legislature would have intended it to stand alOne.
While in the instant case, a constitutional provision is under interpretation, generally, the same rules of construction apply thereto as are applicable
64

to statutes. City of Valdosta'll. Singleton, 197 Ga. 194,21011 Am. Jur. 658, 49; 16 C. J. S. 51, 15.
It now remains to apply these principlfils to the Georgia constitutional provision under consideration. To do so, a review must be made of the history of education in Georgia, and its dependency, or lack of relation to, segregation of the races.
III
INTENT OF ARTICLE VIII, SECTION I
The constitutional history of Georgia is clear proof of the contention that the provision for an adequate education in the common schools (2-6401) is tied to the further provision of the paragraph that requires separate schools for the races. The history of public education in Georgia indicates that the only way free education would ever have been established would be on a segregated basis. See 16 Georgia Bar Journal, 417-426. The two provisions, free education and separate schools, were inextricably interrelated. To hold otherwise would substitute the intent of the Court for the intent of the people. Constitutions are written and amended by the people, not by the Courts. The latter's,duty is to seek the intent of the framers and ratifiers.
While there was a continuous fight for free common schools from the very beginning, the thought of separate schools did not arise until the Civil War. The reason for this is quite clear in that the negro was a slave. There was no consideration of his participation in free public education prior to his emancipation. It is most significant that once the negro became a citizen the advocates of free education qualified their stand to the extent that they were for free education so long as separate schools would be provided for the races. Every court decision in existence at the time of the Constitution of 1877 and at the time of the Constitution of 1945 held that state provisions for separate schools were constitutional. The people adopted both of these Constitutions on such belief. Had the Supreme Court of the United States held in 1869 as it did in 1954 that segregated schools were unconstitutional, no free public school system would have been established during that period by the people of Georgia and there would be considerable doubt if such a free system would even exist at this day.
The fight for free common schools had really begun to achieve its goal with the adoption of a detailed plan by the Georgia Teachers' Association in
65

1869. Proceedings Georgia Teachers' Association,

1871-1894, page 8. This booklet called for free com-

mon schools on a segregated basis. It was distributed

throughout the state as information for a campaign

to induce the legislature to enact a free segregated

system. On October 13, 1870, the legislature passed

an Act establishing the first free public school system

in Georgia and provided for separate schools for

white and colored children. Georgia Laws 1870,

pages 49, 57.



In 1877 the people of Georgia discarded the reconstruction Constitution of 1868 and adopted the Constitution of 1877. It contained a provision for free public schools on a segregated basis. Article VIII, Section I, Paragraph I. A study of Small's Debates, Constitutional Convention of 1877 indicates that certain delegates were opposed to taxing citizens in order to educate the children of their neighbors and that even the thought of not being able to have separate schools for the races would have spelled the doom of any provision for free education in the 1877 Constitution.

The Records of Constitutional Commission, 194344, Volume 2, pages 60-61 indicate this same conclusion as to the Constitution of 1945. Not one person questioned the separate school provision. The provisions for adequate education in common schools and separate schools for the white and colored races were adopted together without objection and without debate. It must be remembered that in 1945 every decision of the Supreme Court of the United States and the Supreme Courts of the various states h;ld held segregated schools to be constitutional.

All acts of the General Assembly relating to education have been based upon the premise that free education and separate schools for the white and colored races are inseparable and that without the latter the former cannot exist. See Ga. Laws 1872, page 72, Sec. XXVI; Constitution of 1877, Art. VIII, Sec. I, Par. I; Ga. Laws 1887, p. 73, Sec. XXI; Ga. Laws 1903, p. 33; Ga. Laws 1919, p. 323 (Code Ann. 32-909); Ga. Laws 1919, p. 331 (Old Code Ann. 32-9$7); Ga. Laws 1945, p. 398 (new Code Ann. 32-937); Ga. Laws 1951, pp. 417-421 (General Appropriation Act); Ga. Laws 1953 (Jan.-Feb.) pp. 151, 1954 (General Appropriation Act). In Opinions of the Attorney General 1952-53, p. 148, some 18 statutes requiring segregation in other activities are collected. It is therefore apparent that segregation in Georgia has not been a mere isolated practice, but has itself been a modus vivendi-an integral
66

part of our social customs and traditions.
It is my opinion that the intent of Article VIII, Section I was to authorize the establishment of an adequate education in free segregated common schools. The provision for free common schools is so inextricably interrelated to the provision for separate schools for the white and colored races that the former provision must stand or fall with the latter provision. In my opinion, it would be inconceivable that any person, having studied the history of free education in Georgia, could deny that this was not the intent of the framers and ratifiers of the Georgia Constitutions of 1877 and 1945.
IV
THE QUESTION OF PARTIAL INVALIDITY IS TO BE DETERMINED BY THE SUPREME COURT OF GEORGIA
The authorities set forth herein compel the conclusion that the Supreme Court of Georgia would hold that the invalidity of that part of Article VIII, Section I, Paragraph I of the Constitution relating to segregation in the public schools, would ipso facto carry with it the first sentence authorizing the establishment of a public school system, without which the other taxing provisions of the Constitution stand meaningless. While the Supreme Court of the United States, having already departed from established norms of statutory interpretation, might therefore proceed to find the provisions separable (should the question be presented to them without a state decision as a guide) the construction of a state statute by. the highest Court of a state is binding on the Federal Supreme Court. Ga. Ry. and Electric Co. v. City of Decatur, 295 U. S. 165, 170, 55 S. Ct. 701 79 L. Ed. 1365; Burns Mortgage Co.v. Fried, 292 U. S. 487, 493-494, 54 S. Ct. 813, 78 L. Ed. 1380; Hartford Indemnity Co. v. Nelson Mfg. Co., 291 U. S. 352, 54 S~ Ct. 392, 78 L. Ed. 840; 11 Am. Jur. 742 107. This, of course does not mean that a state court may bind the Supreme Court of the United States as to the constitutionality under the Federal Constitution of a state statute, but only that the state court's interpretation of the meaning of a state law is binding on the Supreme Court, and will be tested as against the Federal Constitution by the latter under that interpretation. See Gatewood v. North Carolina, 203 U. S. 531, 27 S. Ct. 167, 51 L. Ed. 305; Board of Education v. Illinois, 203 U. S. 553, 560, 27 S. Ct. 171, 51 L. Ed. 314, 318.
67

V

CONCLUSION

In my OpInIOn there is no authority under the Georgia Constitution of 1945 to establish mixed schools, tax for mixed schools, or expend funds for mixed schools. If the Supreme Court of the United States should strike down the requirement in Article VIII, Section I, that separate schools be maintained for the white and colored races in Georgia, the provision for an adequate education in free common schools falls with it. By so doing, the Supreme Court of the United States would have abolished free public education in Georgia under the present Constitution of 1945.

With kindest regards and best wishes, I am

EC:rm

Sincerely yours, Eugene Cook The Attorney General

SCHOOL BUILDINGS FINANCED BY SCHOOL BUILDING AUTHORITY MAY BE SUBLEASED
November 9, 1954
Honorable M. D. Collins State Superintendent of Schools State Office Building Atlanta, Georgia
Dear Dr. Collins:
By letter of October 28, 1954, you requested my opinion as to the legality of transferring any school buildings being financed through leases with the State School Building Authority to private schools, in view of alleged contract terms stating that the structures are to be occupied by the county and city systems.
On October 30, I wrote. you requesting copies of the contracts in question, l:\tating that I felt constrained, ex majore cautela, to decline construing any contract unless I had been furnished with copies thereof. To date, I have not heard from you, and in the meanwhile, I have succeeded in procuring copies of the relevant documents.
The trust indenture executed between the State School Building Authority, and the Fulton National Bank, as trustee for the b01).dholders, provides, in so far as even remotely relevant here, as follows:
"Section 705. The Authority covenants and
68

agrees that so long as any of the bonds of this issue shall remain outstanding and unpaid it will not voluntarily create, or cause to be created, any debt, lien, pledge, assignment, encumbrance or other charge having priority to or being on a parity with the lien of this Indenture and of the bonds issued hereunder upon any of the revenues of the Authority received under the terms of the said leases hereinabove referred to. The Authority further covenants that it will not transfer, conveyor otherwise alienate the facilities or any of them, or the real estate on which said facilities shall be located covered by said leases hereinabove detailed, except that the Authority may sell and convey the combined project as a whole if simultaneously with such conveyance the Authority shall deposit in the Sinking Fund an amount which with other monies then in such fund shall be suff.icient .poth to redeem all outstanding bonds on the earliest date upon which they could be redeemed in accordance with their terms and also to PllY all interest which shall have accrued thereon on or before such date, and also the Authority. may sell and convey one or more of the facilities of one or more of the projects if simultaneously with such sale the purchase price is deposited in the Sinking Fund, which price must be an amount sufficient to redeem that portion of all of the outstanding bonds as. the total cost of the construction and equipment of such facility bears to the then outstanding bonds figured to the earliest date upon which they could be redeemed in accordance with their terms, and also to pay all interest which shall have accrued thereon on or before such date. The Authority further covenants that it will not mortgage or otherwise voluntarily create, or cause to be created any encumbrance on the facilities, or any of them, or the real estate on which they will be located.
"The Authority may, however, from time to time sell any fixtures, equipment or other movable property acquired by it in connection with any facility if the Authority shall determine that such articles are no longer needed or useful in connection with the operation and maintenance of the facility and the proceeds thereof shall be applied to the replacement of the propties so sold or disposed of, or shall be deposited to the credit of the Depreciation Reserve Fund."
See also Section 706, page 44, to somewhat the same effect.
69

It is to be noted that these provisions merely prohibit the Authority from transferring or encumbering its interest. Where school buildings are financed through the State School Building Authority, the transaction is carried out by a lease arrangement, whereby the Authority, the fee simple owner of the facility in question, leases to the individual school system. The school system acquires a leasehold interest in the property, while the Authority retains the reversion or fee simple.
Therefore, it is clear that Sections 705 and 706 of the Trust Indenture are only limitations upon the right of the Authority to alienate or encumber its reversionary interest, and do not in anywise restrict or prohibit the lessee, i. e., the local school system, from subletting its leasehold.
Generally, a lease for five years or more, which does not by its own terms interpret the intent of the parties to pass a lesser ir.terestwill be presumed, as under the common law, to convey an estate for years (Davis v. Auerbach, 78 Ga. App. 575, 580), and the mere fact that the instrument uses the word "lease" does not, contrary to the impression in the public mind, refer to only a long term landlord and tenant relationship, as distinguished from an estate for years, since the Code, Section 85-806, refers to a "lease" as conveying an estate for years. Warehouses, Inc. v. Wetherbee, 203 Ga. 483, 485 (3a). An "estate for years" as distinguished from a mere usufruct which passes under a landlord-tenant relationship (Code, Section 61-101), may be sold, assigned, or sublet the same as any other real estate, even against the consent of the grantor, unless the deed or "lease" otherwise provides. Clark v. Herring and Mock, 43 Ga. 226 (2); Wilson Manufacturing Company v. Chamberlin-Johnson-DuBose Company, et al., 140 Ga. 593 (2). Of course, the lessee cannot substitute a new paymaster without the consent of the lessor. Warehouses, Inc. v. Wetherbee, et al., 203 Ga. 483, 485 (4).
Turning to the standard lease executed between the Authority as lessor, and the various school systems as lessees, the provision which you probably have reference to is paragraph 5, which provides in part as follows:
"During the term of this lease, Lessee shall use and continue to occupy project herein leased to the exclusion of any and all other such buildings or facilities which Lessee may own, build, acquire or otherwise lease except that so long as Lessee does not use and fully occupy said
70

project Lessee may use and occupy any other similar buildings or facilities in its discretion."
This provision obviously was never intended as a prohibition against subleasing; had the intent so been, thil customary language used to convey this intent would have been used, in preference to language which hardly is appropriate to express the idea.
This provision's sole function is to establish a "priorital right." The purpose of this priorital right is to guarantee that where, for instance, a school system is in possession of facilities besides those leased by the Authority, the System could not legally occupy these "other facilities" to the exclusion of those leased by the Authority and thereby create a prior claim or lien against funds held by the School System for paying rents.
In McLucas v. State Bridge Building Authority, et al., 210 Ga. 1, the Supreme Court, in speaking of the debt prohibition provision of our Constitution (Article VII, Section III, Paragraph I; Code Annotated, 2-5601) and the provision under which contracts with the various public authorities are made (Article VII, Section VI, Paragraph 1 (a); Code Annotated, 2-5901), declared respectively,
"The latter lifts out of the former any inhibition against the creation of a debt insofar as the creation of a debt is authorized by the latter clause." (Id, p. 8)
Also, it is true as you stated in your letter that the Turtle River case (State of Georgia v. Toll Bridge Authority, 210 Ga. 690, 704), held that the Legislature could not invalidate a contract, the obligation of which was authorized under the above theory of the McLucas case. Reaffirmation of this principle of constitutional law little needs to be done at this late date for the Supreme Court of the United States has settled this proposition so many times that it has become hoary with age. However, as has been hereinbefore shown, subleasing of the facilities by a local school system does not in the least impair the obligation of any contract with the bondholders. The rule that an estate for years is subject to subleasing was part of our law at the time the original lease agreement and trust indenture, including the bond certificates, were executed, and entered into those instruments as though incorporated therein Walker v. Whitehead, 83 U. S. 314, 16 Wall. 314,21 L. Ed. 357; West End and A. St. R. Co. v. Atlanta St. Ry. Co., 49 Ga. 151; Dorsey
71

v. Clements, 202 Ga. 820, 173 A. L. R. 509. Had the bondholders or any other interested person desired that the public school systems not sublet or assign their lease, they could easily have so provided in the instruments effectuating the transaction. No such provision is found.
Of course, I have stated before herein that a new paymaster cannot be substituted without the consent of the bondholders, which means that any public s.chool system transferring its interest to a private school will still be liable to the Authority, and in turn, the bondholders, for the rents, in any case where the sublessee, i. e., the private school, defaults. However, the local public system could readily protect itself by requiring the private school to post good and sufficient bond, conditioned upon the payment in full by it of all rents due.
I, therefore conclude that there is nothing in either the trust indenture, or the lease, to prohibit the sUbleasing of facilities by the local public school systems.
The bondholders are not concerned with who occupies or is in control of the structures. The attractive inducement to them was the credit of the political subdivisions of the State, which would remain ultimately pledged, even in the event of a sublease or assignment.
Next, it has been said that certain language in the State School Building Authority Act prohibits a political subdivision from conveying or assigning its leasehold interest.
It is true that Section 32-1403 (a), in setting forth the definition of "project" and "unit", as to which later sections confer upon the Authority the power to contract with respect to, apparently is confined to public educational systems, so that as presently constituted, it seems safe to assume that the State School Building Authority is without power to contract with private school systems with regard to school facilities. However, this does not, in and of itself, prohibit the public school system or lessee, otherwise authorized, from assigning, subleasing, or otherwise disposing of its interest.
In Ogden v. Saunders, 12 Wheat. 214, 257, 6 L. Ed. 606, 621, it was declared,
"It is a law which impairs the obligation of contracts, and not the contracts themselves, which is interdicted." (Emphasis supplied.)
72
;,:.-....

In defining what was meant by "obligation", the court stated,
"... it is the law which binds the parties to perform their agreement."
In Aycock v. Martin, 37 Ga. 124, 128, it was said,
"The obligation of a contract is a legal, not a mere moral obligation; it is the law which binds a party to perform his undertaking. The obligation does not inhere or subsist in the contract itself, proprio vigore, but in the law applicable to the contract."
Even if we assume that the School Building Authority Act will require amendment in order to authorize a political subdivision to conveyor' assign its interest (in view of the rule that political subdivisions have only the powers expressly granted or those granted by necessary implication), this would not in anywise affect the obligation. Before amendment, the bondholders had a right-the cOUJ}terpart of the obligation (Aycock v. Martin, Supra; Holland v. Dickerson, 41 Iowa 367)-and that was to require payment of the rentals under the procedure prescribed by the Act; after conveyance by the subleasing or other conveyance, the bondholders still retain that right-the local school system has not in the least been relieved. of its obligation to pay these rentals.
It would be absurd to say that the School Building Authority Act is not subject to amendment. To so hold would be contrary to our system of government. While the federal Congress only has power to enact laws expressly authorized by the Constitution, the State Legislature has power to enact any legislation not in conflict with the State or Federal Constitutions. Nicholas v. Hovenor,42 Ga. 514, 517. See also Art. III, Sec. VII, Par. XX (Code Ann., 2-1920). If a proposed amendment to the Act does not impair the obligation of the contracts with the bondholders or authority, it is "not in conflict" with the Federal Constitution.
Of somewhat similar import is Sec. 32-1424(a), which provides that the powers and duties of the political subdivisions and of the Authority shall not be diminished or impaired in any manner that will affect adversely the interests and rights of the holders of such bonds. This provision does not say, nor does it mean, that once leases are made with, say for instance, a city system, the city charter could not ever thereafter be amended. The prohibition is
73

only against such amendments as would "adversely affect" the interests of the bondholders.
With kindest regards and best wishes, I am
Sincerely yours, Eugene Cook The Attorney General
EC:rm
NOTE: As suggested in the above opinion, legislation was enacted at the 1956 Session (Ga. Laws 1956, p. 11) authorizing the subleasing of school building facilities financed by the State School Building Authority. See p. 20.

PRIVATE SCHOOL PLAN NOT AFFECT TEACHERS' RETIREMENT

October 6, 1954

Honorable M. D. Collins Superintendent of Schools Department of Education State Office Building Atlanta, Georgia.

Dear Dr. Collins:

I am pleased to acknowledge your request of September 24, 1954, for an official opinion as to "what would happen under the proposed Private School Plan to the Teachers' Retirement System, Certification of Teachers, and the School Lunch Program".

I am assuming that you had in mind the proposed Constitutional Amendment #4 when you referred to the proposed "Private School Plan".

Inasmuch as your request involves numerous constitutional and statutory.questions, and in order that you may clearly and easily distinguish one from the other, I shaiI restrict. this opinion to the question relating to. the Teachers' Retirement System. Subsequently I will give you my views relating to the "Certification of Teachers and the School Lunch Program".

Article VII, Section II, Paragraph II of the 1945

Constitution of Georgia, relating to the Teachers'

Retirement System and authority to levy taxes

therefor, provides:

.

"The powers of taxation may be exerCised by . the State through the General Assembly and by counties and. municipalities, for the purpose of pay-big pensions and other benefits and costs

74

under a Teachers' Retirement System or Systems; provided no indebtedness against the State shall ever be created for the purpose herein stated in excess of the taxes lawfully levied each fiscal year under the Acts of the General Assembly authorized hereunder."
The above constitutional authority clearly empowers and authorizes the General Assembly to enact statutes empowering the State,counties and municipalities to levy taxes for the purpose of paying pensions and other benefits and costs under the Teachers' Retirement System.
This provision of the Constitution is separate and distinct from that of Article VIII, Section I, Paragraph I providing for a segregated system of common schools. The adverse decision of the Supreme Court of the United States relating to Article VIII, Section I, Par. I would have no effect whatsoever on the constitutional provision above cited authorizing taxation by the State, counties and municipalities for maintaining the Teachers' Retirement System.
Your attention is called also to Article VII, Section II, Par. I of the 1945 Constitution of Georgia, which was ratified by the people on November 4, 1952, which provides:
"The Teachers' Retirement System of Georgia . . . shall have the powers and duties as provided by law existing at the time of the adoption of this provision of the State Constitution together with such further powers and duties as may be hereafter provided by law."
It is crystal clear that this provision places the Teachers' Retirement System of Georgia under the protection of the Constitution with all the statutory authority and powers granted to it by the General Assembly at the time of its adoption, and authorizes the General Assembly to implement it by .enabling legislation without reference to segregation. In other words, it freezes the Teachers' Retirement System of Georgia into the Constitution of 1945 and removes it from the clutches of the court's decision.
Even the Legislature is without authority to abolish or take from it any of the powers and authority given to the System at the time of its adoption.
The only possible way the present Teachers' Retirement System of Georgia con be changed, except to improve it, is by the adoption of a Constitutional
75

Amendment contravening the foregoing prOVISIons. And, this could not be done without the passage of a resolution by the General Assembly to be voted on by the people in the November 1956 General Election. (No one could honestly contemplate such action.)
Upon the adoption of the proposed Constitutional Amendment #4 there would be only one slight change to be enacted by the General Assembly to put the Teachers' Retirement System in line with it and afford complete protection against the court's decision. This change would be a simple amendment redefining the word "teacher" as now used in the Teachers' Retirement Act so as to strike the word "public". I am sure you must be familiar with the fact that this has been done heretofore by amendments to the Teachers' Retirement Act so as to include the employees of the Georgia Educational Association, Georgia High School Association, Georgia Teacher Education Association, and the Georgia SchOol Boards Association. Each of the foregoing are private organizations and have no connection whatsoever with the State, countie!l or independent school systems. (See Code Section 322901.)
It is therefore my firm official opinion that the Teachers' Retirement System would remain intact should the proposed Constitutional Amendment #4 be adopted and eventually used as a last resort measure in anyone or more school units or systems in order to preserve segregation in our public school system.
In view of the apparent misunderstanding among the school teachers of Georgia about the effect the proposed Constitutional Amendment #4 might have on their Teachers' Retirement System, I suggest that this opinion be called to their attention by your department. They are entitled to have their fears and apprehensions removed by responsible public officials closely allied with their profession.
Sincerely yours, Eugene Cook The Attorney General
EC/mwg
76

CONSTli'J.'UTIONAL OBLIGATION TO SUPPLY PUBLIC EDUCATION IS ONLY UPON STATE
October 19, 1954
Honorable M, D. Collins Sup,erintendent ot Schools Department of Ed~cation S~e Office Building Aj;~~Ilta, Georgia
Dear Dr. Collins:
I acknowledge receipt of your letter of October 18, 1954, requesting my opinion on a question relating.to the so called "Private School Amendment".
You seem troubled by the fact that the amendnu\ntprovides that grants may be made of State, county and municipal funds in discharge of all obligation of the' State to provide adequate education for its citizens. Your difficulty seems to arise ftomthe fact that while State, county and municipaJ funds are to be the subject of private grant, the obligation to be discharged is only that of the State.
The'reason for the phraseology above referred to is' readily obvious. The Constitution, Article VIII, Section I, Paragraph I (Ga. Code Ann., Sec. 2-6401) provides, in so far as relevant,
"The. provision of an adequate education for the citizens shall be.a primary obligation of the St,ate of Georgia, the expense of which shall be provided for by taxation ." (Emphasis ours)
It is thus seen that th~ Constitution only imposes an'obligation against the State, for while other prov:t~ions of the Constitution authorize counties to~stablish public schools (Art. VIII, Sec. V, Par. I; Code Ann., Sec. 2-681) and tax therefor (Art. VII, Sec. IV, Par. I) and authorize municipalities to. maintain existing independellt. systems by taxation, (Art. VIII, Sec. VII, Par, I; Code Ann., Sec. 2-7001), these provisions are merely permissive and do not impose an obligation or duty upon the counties or 'cities.
. It,fs for. this reason that the a,mendment only refers to discharging the obligation of the State, without mentioning any obligation of the cities or counties. There was no need to make reference to something that was non-existant.
Secondly, the word "obligation" as used in the
77

amendment only has reference to the obligation .of the State to provide an adequate education for its citizens as provided in the Constitution, and does not in the least. refer. to any obligation the State or counties may' have' incurred under contracts.
Assuming that a private school should be esta~ lished in any county wherein existing leases were in force with the State School Building Authority covering buildings and facilitiell in' use, the county could by contract assign its lease to the private school and the person or persons operating the private school would thereafter make the rental payments which would payoff the ,bonded indebtedness to the bondholders. Under this procedure the county would have to pay only in the event the private school failed to .make payments.

To insure that the county not be called upon to make payments upon default by the priva~ school would only require .that the amQunt of the State grant be computed so as to adequately reflect these and other operating costs. In addition, the county could require its assignee, i.e., the privllteschool, to post good and sufficient bond guaranteeing payment of the rentals.

However, in the event the bondholders consent, the county could be relieved entirely of all obligation under the leases, by effe~tuating what is legally referred to as a novation.

However, assuming a novation is not perfected, the mere fact that a county might be called upon to make payments upon default by the private llchool is nothing to become alarmed about, 'since this possibility is one that already exists, independently of the private school plan. This is because the lease contracts all provide that the counties apd o~her school districts will. be liable in the event .State appropriations are. ever reduced below a prescribed amount. See. Opinions of the Attorney General, 195253, p. 333.

With regard to the future acquisition of facilities, the .private school could lease directly from the Authority.

The legislation authorizing' the School Building Authority to contract with private schools, if any be needed, would be part of the legislation implementing Amendment No.4.

. With Ifindest regards and best wishes, I am

EC:nb

Sincerely yourll, Eugene Cook The Attorney General
78

.CONSTRUCTION OF GRANTS TO EDUCATION AMENDMENT-ONLY WAY BY WHICH PUBLIC '.. EDUCATION COULD EXIST WHERE RACES
ORDERED MIXED

October 13, 1954

Honorable M. D. Collins SuPer-intendent of Schools DepattInent of, Education State Office Building ,Atlanta,' Georgia
D~a.r Dr. Collins: j i/
. lam pleased to acknowledge your request of Octuber 6,1954,.as to the meaning of the words "Notwithstanding any other provision of the Constitution, ~t.c.", and the word "all", contained in proposed b~mstitutional Amendment Number 4.

.' Proposed Constitutional Amendment Number 4 (Georgia Laws 1953, November-December, page 241) relids as follows:

. f'Section XIII, Paragraph I, Grants for Education:, Notwithstanding any other provision of th~ Constitution,. the General Assembly may by law provide for grants of State, county or municipal funds to citizens of the State for educational purposes, in discharge of all obligation of the Stl!-t.e. to, provide adequate education for its citizens." ,,'

1~ "Notwithstanding any other provision of the Constitution, etc."

In~y ,opinion ,the ,phrase "Notwithstanding any 6th~1"p~ovision of this Con:rtttution", means exactly what it says,lind fueans that, if the a.mendment is adopted" grants for ,~d\lcational purposes may be
made as provided by' laws passed by the General
Assembly, notwithstanding any provision of, the
Georgia Constitution which would otherwise pre-
vent the grants.

This phrase is a familiar one, both in law and in

the English language, and it is used in this amend-

ment to make it absolutely clear; that the General

Assembly" can make these grants out of State tax

"itibney, and 'authorize counties and cities to make

(' '1 " i ! (~ " ; _

:' "

,.

grants. out of local tax money. These words do not

'ill' al).r way' affect retirement' funds. These funds

are iirote~ted by the contract' clauses of both the

St::tte ~nd :Federal Constitutions. Proposed Amend-

ment Number 4 does not deal with the contract

clauseQf: the Georgia Constit:ution, or; affect it. in

79

any way. Even if we assumed that it did, it could not repeal the contract clause of the 'FederalConstitution. See Dartmouth College 1J. WooawMa, 4 Wheat. 518.

2. The word "all".

In my opinion the words "in discharge of all obligations of the State to provide adequate education for its citizens", would in no way prevent the General Assembly from providing funds with which 'to payoff the indebtedness which has been' created by the School Building Authority, after grants have been made to citizens. Proposed Amendment Number 4 will make it possible to change the educational system in those localities in which existing schools are knocked out by the Federal Courts.

Unless proposed Amendment Number 4 is ratified, in those localities in which the present schools are destroYed by the. Federal Courts, there will Qe no schools at all, for the Georgia Constitution prohibits expenditure of public money for mixed schgols. In counties and cities against which no Federal Court decree is entered, no change of the educational system would be necessary, and in those counties and cities the existing separate public schools would go on just as now.

With kindest regards and best wishes, I am

EC:rm

Sincerely yours, Eugene Cook The Attorney. General

TEACHERS' RETIREMENT CONTRIBUTIONS TO BE FURNlSHED BY PRIVATE SCHOOL
October 14, i954
Honorable M. D. Collins Superintendent of Schools Department of Education State Office Building Atlanta, Georgia
Dear Dr. Collins:
I acknowledge receipt of your letter of October 7, 1954, in which you request my opinion as to who would supply the employer contributions to match the teachers' contributions for the Teachers' Retirement System, as respects private school teachers brought under said system.
I have stated to you in a previous opinion that
80

Amendment No.4, the so called "Private School Amendmene', if passed, by and of itself would have no effect whatsoever. It is of that species of law which we denominate "not self-executing", that is, in the event the races were ordered mixed in any school district by the federal courts, the State Department of Education could not, without more, immediately commence making grants to individual students in that area.
Legislative implementation must first be provided, in order to authorize such grants. Accordingly, as a part of the legislation authorizing private grants under Amendment No.4, provision will be made requiring all private schools to set aside the employer contribution to match the tea.cher contribution, which sums will then be paid into the retirement system.

If it be said that this procedure is questionable as depending upon the whim of the legislature in enacting this requirement of employer contributions, the short answer is that even under the present system of state-supported schools, you are subject to the whim of the legislature in making appropriations, since no constitutional provision is self-executing in the sense that it is always subject to the legislature's making, or failing to make, appropriations to carry it out.

Further, the employer contributions to be paid by the persons operating a private school could be taken into account in computing the amount of state grants for each pupil, in addition to all other factors which would go to make up the grant, such as school books, supplies, etc.

I am sure that you are familiar with the manner of computation used in certain of the veterans' training programs, whereby all the various charges are taken into consideration in arriving at a figure which will be paid to a veteran in training. The computation of the private school grants will be arrived at in somewhat the same manner.
With kindest regards and best wishes, I am

EC:nb

Sincerely yours, Eugene Cook The Attorney General

NOTE: Legislation was enacted in the 1956 Session (Ga. Laws 1956, p. 13) authorizing teachers employed by private schools to become members of the Retirement System See p. 21.

81

Why Georgia Did Not Appear Before The Supreme Court On The Implementation Hearing
NOTE: The State of Georgia was not a party to the Segregation Cases, and did not appear as amicus curiae on the arguments which led up to the decision of May 17, 1954, holding segregation in public schools to be illegal under the Fourteenth Amendment, as no invitation was made by the court until after this decision and pending the arguments on the question of implementation. The opinion below explains why this invitation of the court was re,jected by Georgia.
August 13, 1954
Mr. Harold W. Hollingsworth, Chairman Public School Welfare Committee Georgia Junior Chamber of Commerce Sylvania, Georgia.
Dear Mr. Hollingsworth:
I am pleased to acknowledge your recent letter <;oncerning a proposed resolution by the Georgia Junior' Chamber of Commerce on the school segregation cases.,
As' to my hot appearing before the Supreme Court of the United States in October, I feel that certain facts should be brought to the attention of your organization in order that it might better understand my position.
The various states have been invited to appear and present plans on how to implement the decision declaring segregation to be unconstitutional, i.e., a plan for desegregation. Can I, as legal counsel for the State of Georgia, in good faith, go before the Court with any such plan?
Anticipating the decision, the Georgia General Assembly provided in the 1953 Appropriations Act (Ga. Laws i953, Jan.~Feb. Sess., pp. 151, 155-157, 172) that all public school funds would be withdrawn from any school system, including the University System, which <;eases to be operated as a separate school for either the white or colored race. The general consensus of opinion is that the Ge~r gia Constitution, Art. VIII, Se'c. I, Par. I (Code Annotated, Sec. 2-6'401) would, independently of the foregoing, prohibit the spending of State funds for non-segregated schools.
The' November-December Session of the Georgia General Assembly provided for a Georgia Commission on Education; to be composed of various named
82

individuals, and whose duty it is to conduct hearings and make recommendations to the next, General Assembly as to the possible methods by which segregation may be continued. (Ga. Laws 1953, Nov.-Dec. Se'ss., p. 64). This Commission has thus far held three meetings and received the proposed plans of the various ,candidates for Governor.
The plans' submitted thus far have taken four b~o,d classifications. These have not been sufficiently developed to be of any value to Attorneys General who are affected and who are similarly situated.
In addition, all of the candidates for Governor and other State offices, save only one candidate for Governor who is not considered a serious contender, have announced their intention to circumvent the decision of the Supreme Court.
'In the light of all these facts, it would be impossible for me to present any plan toward implementation when Georgia intends to circumvent the decision.
Some individuals and groups seem to misunderstand the propriety of Georgia's position. There are several precedents on this point. The decision in Chisholm 17. Georgia, 2 Dall. 419, which allowed a citizen to sue the State of Georgia, was circumvented by the Eleventh Amendment.. The decision declaring the Federal income tax unconstitutional was circumvented' by Congress and the State legislatures adopting the Sixteenth Amendment. If this had not been done, it would have been impossible for the government to have accomplished the economic and social gains of the past two decades. The most recent instance of circumventing a Supreme Court decision came in the Tidelands Oil Case where Congress reversed a decision' of the Court;
Perhaps you are familiar with the famous Dred Scott Case of 1857. Abraham Lincoln had this to say about that Supreme Court decision:
"It, is the first of its kind, it is an astonisher in, legal history.. It is a new wonder of the world."
'" '" '"
"If it (the question) had been before the Court more than once and had there been affirmed through a course of years; it might then be, perhaps, factious, naY,even revolutionary, not to; acquiese in ''it as a precedent"
83

"That burlesque on a Judicial decision must be overruled and expunged. from the books of authority.

"We mean to reverse it, and we mean to reverse peaceably."

(Lincoln Encyclopedia, Macmillian Company, 1950)

The Atlanta Constitution, June 10, 1954, had the following editorial on Georgia's position:

"The candidates gave their views frankly. They were unanimous on one point--segregation must be maintained in Georgia schools.

.* '" '"

"Georgia is proceeding within the law-and we must stay within the law-to maintain segregation as well as its public school system. As Atty. Gen. Eugene Cook has said,. the maze of legal questions involved and which must be decided point by point is not defiance of the Court itself."

It is my opinion that Georgia will be able to work out a plan that will not conflict with the Constitution of the United States and yet preserve the customs and mores of our people.

With kindest regard and best wishes, I am

EC/eg

Sincerely yours, Eugene Cook The Attorney General

Judges Are Subject To The Laws Too
NOTE: In no single instance in the last decade has the old argumentum ad horrendum been more vigorously utilized than in the opposition to the South's announced intention of circumventing' the Supreme Court's decision. The opinion below, print-' ed in the July 18, 1955, edition of the Baltimore Evening Sun, in response to an editorial criticizing the South, undertakes to differentiate between two types of judicial decisions.
July 5, 1955
To The Editors Of The Evening Sun:
Sir:
I feel constrained to reply to your editorial of June 3, 1955, 'censuring me for voicing my disap-
84

proval of the decision of the United States Supreme Court in the School-Segregation Cases.
I consider it my duty to raise my voice whenever the liberty of free men is endangered, without regard to whether that threat emanates from an executive official, a legislature, or a court. Courts are not infallible-they are composed of human beings no different from you or I, and are equally deserving of just criticism whenever the proper occasion arises.
There inheres in the very nature of things a manifest difference between judicial decisions which are erroneous merely because of a misunderstanding or ignorance of the law, and those which are erroneous by virtue of a calculated and intentional disregard of settled, fundamental principles known to the judges ignoring them.
The former constitute merely additional burdens which must be borne in an organized society-a concomitant if not the price of an ordered liberty. Their correction and amelioration must be found, if at all, by either remedial legislation within the framework of democratic processes, or by an appeal to reason in the market place of ideas, where all things must run the gamut of competition for acceptance in the struggle for the minds of men, including those august personages upon whom has been bestowed the judicial responsibility.
On the other hand, when a court designedly misapplies the law, or undertakes to usurp its delegated powers, as many believe the United States Supreme Court has recently done in the segregation cases, the pseudo-decision is no more entitled to be respected than the would-be judges who gave it existence. It is mere brutum fulmen, and those who fathered it are properly relegated to the realm of caput lupinum.
To declare otherwise is to deny legal and moral sanction to the existence of our Federal Government, itself a product of organized resistance against constituted authority, for was it not said in that foremost of all discourses on man's relation to his sovereign, the Declaration of Independence, "That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government. . . ."
Presumably, should the Supreme Court tomorrow hold that all newspapers are no longer entitled to the "free-speech" guarantees of the Federal Con-
85

stitution, yours would be one of the "quieter and more moderate voices" urging its spineless acceptance, and the resulting submission to tyranny. On principle, I can see little difference in such a situation and the segregation decision.
Notwithstanding these premises, which might well justify the most flagrant opposition to the "extrajudicial" pronouncements of a power-intoxicated court, neither I nor any other responsible state official, to my knowledge, has advocated any resistance to the Supreme Court save only that confined to a course canalized within the permissible limits of legal action.
Our policy has been one of circumvention within the framework of the law.
If you disapprove of circumvention, then you also disapprove of the Fourteenth Amendment, and we are back from whence we started, since the principal design of this amendment was to circumvent the Supreme Court's decision in the Dred Scott case, a decision the correctness of which (unlike the segregation decision) had never been questioned by legal scholars.
Yours very truly, lsi Eugene Cook
The Attorney General
The Segregation Laws of Georgia Are Still In Effect
NOTE: The following advisory opinion was rendered by the Attorney General on September 2, 1955, in response to numerous requests from various sources.
Dear Sir:
Probably no public issue in recent years has produced as much confusion and misunderstanding as the unfortunate decision of the United States Supreme Court in the recent Segregation Cases. While it is generally recognized in this State that the decision is clearly wrong on principle, the question as to its effect upon the Georgia constitutional and statutory provisions requiring segregation in the public school system has hardly received such unanimity of opinion.
In the belief that this vital matter is one upon which enlightenment should not be long delayed, it shall be the purpose here to discuss the problem in terms comprehensible by all.
86

To properly understand the answers to this question, one must first understand the peculiar nature of a judicial decree.
Courts do not render judgments which find or affect the public generally, but their pronouncements are confined to what the law technically denominates the "parties to the record"-a designation given to the specific individuals named in the pleadings against whom relief is prayed.
"The Segregation Cases originated in the states of Kansas, South Carolina, Virginia and Delaware, but the states themselves were not named as defendants in any of these suits, nor could they have been so named, since the Eleventh Amendment to the Federal Constitution prohibits the bringing of any suit by a private person against a state.
Instead, in each case, only a single county Board of Education was named as party defendant. For example, in the Virginia case, only the Board of Education of Prince Edward County was named defendant, and it is this county alone which has been bound by the decree rendered by the Court, and no others.
In the implementation arguments before the Court during April of this year, the specific question was raised as to who would be bound by the decre.e. In response to a question posed by Justice Black as to whether in the South Carolina case people outside Clarendon County could be affected, Solicitor General Sobeloff, representing the United States, declared:
"Obviously no. Under no view of the class action rule can people in other districts be affected, either entitled to relief or bound by the proceedings in these cases."
JUSTICE BLACK: "Then, even then, litigation would continue, would it not, in other parts of the country?"
MR. SOBELOFF: "It might . . ."
Here isa candid admission by the Solicitor General of the United States, who appeared in court supporting the cause of the NAACP, that of the four states involved in the four suits, only the single county named as a defendant in each of the four states would be bound by the decision and thereby subject to proper enforcement proceedings.
This statement of Solicitor General Sobeloff was merely giving recognition to a well established rule,
87

for in the case of Scott 11. Donald, 165 U. S. 107, 117, the United States Supreme Court held that an injunction decree (which is the type of decree issued in the Segregation Cases) could not legally bind persons not parties to the suit, and in the case of Chase National Bank 11. Norwalk, 291 U. S. 431, it was further held that an injunction could not be issued in such broad language as would bind the state where only a municipality of the state had been named as party defendant.
Georgia was not a party to the Segregation Cases, and declined to participate upon invitation as friends of the Court. In so refusing, it was sought by responsible state officials to not only avoid any possible holding that we had thereby become bound, but to give solemn recognition to the policy of this state as evidenced by the action of the legislature and people in making it clear in no uncertain terms that segregation would not be abolished in our public school system.
There are both constitutional and statutory provisions in the laws of this state which require segregation in our public school system. Since Georgia was not party to these suits, these laws are still in effect, and until they are declared otherwise, are presumed to be constitutional. Nicol 11. Ames, 173 U. S. 509; Ogden 11. Saunders, 12 Wheat, 213; Brunswick Peninsular Corp. 11. Daugharty, 203 Ga. 454, 455, 456.
Even should a suit be brought in Georgia, anyone action could affect only one of Georgia's 201 systems. To bind all of these systems, 201 separate suits would have to be brought.
If and when any suit is successfully prosecuted against anyone county or city system, the Court decree ordering integration would never go into effect as a practical matter since that same decree would close up every public school in the county or city affected, and other means of providing public support for education would have to be sought. Segregation would continue as before in the remaining county and city systems, as the faithful to the decrees of the Grand Lama.
With kindest regards and best wishes, I am
Very truly yours, lsi Eugene Cook The Attorney General
EC:rm
88
...- ~ -'-"-:- ::;"7-

V.
LISTING OF LEGISLATION PROPOSED AND INTRODUCED BUT NOT ENACTED
NOTE: None of the following legislation was ever voted on, but either died in Committee or was never placed on the calendar.
1955 Session
1. SB #41-provid~d for the laying out of attendance districts for pupils of the public schools. See Senate Journal 1955, pp. 51, 60, 61. For the . text of this bill see Report of the Georgia Commis8ion on Education, December 1954, p. 13. See also note following number 2 below.
2. SB #42-provides for the assignment of pupils in the public schools with a prescribed administrative review procedure. For a text of the original bill, see Report of the Georgia Commission on Education, December 1954, p. 11. For a text of the revised bill see Senate Journal 1955, p. 123. See also Senate Journal 1955, pp. 51, 60, 61, 122, 126, 130. This bill was passed by the Senate 47 to 0 (Senate Journal 1955, p. 126) ; and was read the first time in the House. See House Journal 1955, p. 239. The two above bills were killed in Committee. as it was determined that the local boards of education already possessed the authority sought to be conferred thereby.
3. HB #376-would require that all teachers in the public schools take an oath affirming that they will not teach classes with mixed races. See House Journal 1955, p. 364.
4. HB # 555-would prohibit mixed athletic events and dances and provide penalties for violation thereof. See House Journal 1955, p. 654; recommended do not pass, p. 681, read second time, p. 689.
5. HR # 16-34d-would request the Georgia delegation to Congress to institute impeachment proceedings against the Supreme Court. See House Journal 1955, p. 91.
6. HR #17-34e-would urge the Senate to reject appointments to the Supreme Court of persons lacking judicial experience and temperament. See House Journal 1955, p. 91; recommended do not pass, p. 145.
89

1956 Session NOTE: At the time of this publication, the 1956 House and Senate Journals have not been published, and hence, citations thereto have not been included herein. 1. SB#7-amends the Act of 1955, p. 174, pro-
hibiting expenditure of public funds for mixed schools so as to authorize the Attorney General to enjoin any action or practice which would bring about a violation of said law. This bill passed the Senate but died in the House as it was feared it might serve as an excuse for the nonexhaustion of administrative remedies. For text of the bill, see Report of the Georgia Commission on Education, January 1956, p. 12. 2. SB #151-amends Chap. 18-2 of Ga. Code so as to entitle any female passenger on any common carrier in this State to the entire seat occupied by her where she requests same, and makes it a misdemeanor for any carrier to fail to so provide, or for any other passenger to refuse to move when requested. Passed Senate ..and was read second time in House and recommitted to Committee on February 14, 1956. 3. HB #18-prohibits mixed athletic events and dances and declares it a misdemeanor to hold or direct same or participate in such game or event -postponed indefinitely in House on February 12,1956. 4. HB #139-would provide for revocation of charter of any incorporated municipality not maintaining segregation in its golf courses, parks, swimming pools or other facilities. Read second time in House on February 2, 1956.
90

INDEX TO GEORGIA LAWS AND THE OPINIONS OF THE ATTORNEY GENERAL
RELATING TO SEGREGATION.

PART I.

Page

Constitutional provisions relating to segregation

Public School Systems__________________________________________ 6

Property tax exemption applicable to segregated

colleges

"________________________ 5

Social status .of the citizen______________________________________ 6 Grants for education--_______________________________________________ 6

PART II. Statutes and laws relating to segregation Appropriations Act of 1956__________________________________ 6

Education; Separate schools_________________________________________________ 14

Colored and white children to be taught

separate .------------------------------------------------ 16
Separation of races in public schools-funds to be cut off________________________________________________ 16

Closing of public schools, announcement by

Governor

17

Lease of public school property

19

Sub-leasing of facilities financed by

School Building Authority

20

Teachers' Retirement System

21

Private schools-certificates of safety

23

Health;

Hospitals to be segregated

24

Libel and slander, charge of intercourse with

person of color

24

Miscegenation;

Mixed marriages prohibited

24

Registration of individuals as to race

25

Persons of color defined

25

Various criminal provisions

26, 28

Prisons .__________________________________________________________________ 28

Public Property;

Trespassing prohibited

28

Disposal of public recreational facilities 29

Public Safety;

Segregation laws, State Patrol to enforce 31

Peace Officers' retirement benefits-

forfeiture

32

91

Public Revenue:

Page

Entry on digest of names of colored

persons

34

Returns of taxes paid by colored people________ 34

Property tax exemption applies

only to segregated colleges

34

Training Schools:

Separation of races

35

Colored division for girls

36

Support of colored training schooL_______________ 36

Transportation:

Equal accommodations to be furnished 36

Failure to furnish same

36

Separate cars or compartments for white and colored passengers__-__________________ 37

Allowing white and colored passengers

to occupy same car or compartment

37

Assignment of passengers________________________ 37

Remaining in seat, compartment or car,

other than to which assigned

37, 38

Nurses and servants excluded from above 38

Segregation on sleeping cars

38

Employees failing to assist in rejecting

passenger

38

Separate waiting rooms, drinking

fountains and toilets

39

Passengers to occupy waiting room assigned to them________________________________________ 40

PART III.

Resolutions of the General Assembly relating to segregation

Interposition

41

Georgia Commission on Education create<i

46

Commission on Education continued in effect 48

Proposed amendment to Federal Constitution

giving State exclusive authority over schools

50, 51

Proposed amendment to Federal Constitution
as to separation of races in the Armed F orces____________________________________________ 52

Congressman E. L. Forrester commended

54

Judge John H. Druffel commended

55

Federal-aid to education opposed

55

Miscellaneous resolutions relating to segregation

and states' rights

57

92

PART IV. Page
Opinions of the Attorney General relating to segregation

State can not constitutionally tax for

unsegregated schools

58

Sub-leasing of buildings financed by School

Building Authority held constitutionaL

68

Private school plan will not affect teachers' retirement ------------------____________________________________ 74

Obligation to furnish public education

is upon State

77

Private school plan only method of financing

schools in event of court action

79

Teachers' retirement contributions to be

furnished by private schooL

80

Why Georgia did not appear before the Supreme

Court on the implementation hearing

82

Judges are subject to the laws too

84

Georgia segregation laws are still in effect

86

PART V.

Legislation proposed and introduced

but not enacted

89

93