Fifth Biennial report of Clifford Anderson, Attorney-General of Georgia

GEORGIA. ATTORNEY-GENERAL OPINIONS
1889-1890
CLIFFORD ANDERSON, ATTORNEY-GE;JERAL

The Fifth Biennial Report
OF
CLIFFORD ANDERSON,
ATTORNEY-GENERAL OF GEORGIA.
NOVEMBER, 1890.
ATLA~TA, GA.:
GEo. w. HARRISoN, STATE PRINTEJI.
(Fmuklin Pnblishing House.) lSUO.

ATTORNEY-GENERAL's OFFICE,
ATLANTA, GA., November 4th, 1890.
His Excellency, 'John. B. Gordon: SIR-The preparation of my last biennial report, as
Attorney-General of Georgia, has been unavoidably delayed. This delay is attributable to pressing and important official duties. Amongst these was the prepiuation and argument in the Supreme Court of this State of two cases involving large amounts, and the preparation of a. brief to be used in the argument of a tax case in the Supreme Court of the United States. Much of my .time has also been recently occupied in the investigation of questions submitted for my official opinion and advice. The time now at my disposal being limited, brevity will be necessary. Being my final report, it will embrace such matters, not covered by former reports, as I deem of public interest.
Although I have, in obedience to the requirements of the Constitution, represented the State, in the Supreme Court, in a very large number of "capital cases" during the ten years of my official service, I have not hitherto deemed it important to make special reference to any of them in any of my former reports. I consider it proper to make an exception in the case of Thomas G. Woolfolk, recently convicted of the crime of murder and publicly executed on the scaffold, in the county of Houston. As is known, the crime of which he was convicted was committed in the county of Bibb. He was first tried and convicted in that county, the Honorable George W. Gustin, the then Judge of th~ Macon Circuit, presiding at the trial, which lasted more than two weeks. On that trial the leading counsel for the State was John L. Hqrdeman, Esq., the then Solicitor-General of the Macon Circuit, and the leading

counsel for Woolfolk was John C. Rutherford, Esq., an eloquent advocate and a distinguished member of the Macon bar. No case in this State ever excited deeper interest. Although the evidence introduced on the first trial was wholly circumstantial, it so clearly revealed the real perpetrator of the crime, that public sentiment was practically without dissent in approving and confirming the justice of the verdict rendered by the jury. In view of this unanimity of sentiment, the forbearance of the people of Bibb county was most extraordinary. Convinced, as they were, that Woolfolk was guilty of the most horrible crime recorded in the annals of criminal jurisprudence-to-wit, ~he murder, late in the night whilst the victims were asleep in their beds, of his father, stepmothe-r, two brothers, four sisters (one of them a babe) and an aged female relative of the family, there on a temporary visit-it is highly creditable to their law-abiding dis-. position that they tolerated in their midst one whom they must have regarded with abhorrence, until his case, after several years' delay, and at very great expense to the county, was finally disposed of by the courts. The. conduct and result of the first trial were reviewed by the Supreme Court and a new trial was granted by that tribunal. Although the decision awarding a new trial was criticised by some not familliar with the law, it was generally approved by the legal profession. The case was argued in the Supreme Court with marked ability by the two gentlemen already mentioned-viz., by Mr. Rutherford, in behalf of Woolfolk, and by Mr. Hardeman for the State. I was present for the purpose of assisting Mr. Hardeman in representing the State, but was seized with sudden illness whilst the argument was progressing, and was thus providentially hindered from doing so. Whilst entirely approving the judgment of the Supreme Court in grantin~ a new trial on this hear-

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ing, it is due to Judge Gustin, who presided at the trial below, to state that his decision, refusing a new trial, was reversed on only two of the numerous assignments of error made by Woolfolk's counsel, and that these two related to the admission of illegal testimony, doubtless through inadvertence, or under circumstances affording no time for deliberate or careful consideration. ,Few, if any, judges, called on so frequently to decide delicate and diffiGult questions in the midst of the exciting scenes of a practical trial, and often hastily, would have committed as few errors.
. On the second trial of this notable case, it was found impossible to obtain twelve jurors in the county of Bibb who had not formed and expressed an opinion as to Woolfolk's guilt, from having heard the evidence or some part of it, or who had not, for some other cause, become disqualified to sit in the case, and a change of venue was ordered. In pursuance of this order, the next trial took place in the county of Houston. Judge Gustin again .PrEsided. The State was rc:presented by W. H. Felton, Esq., the present Solicitor-General of the Macon Circuit,
J. L. Hardeman, Esq., Messrs. Guerry & Hall, of the
Macon bar, and W. C. Winslow, of Fort Valley; and Woolfolk was represented by his leading counsel, Mr. Rutherford, and Messrs. Duncan & Miller, of the Perry bar. The trial was more protracted than the first. The result was the same, a verdict of guilty. The arguments of the eminent counsel engaged in the case were characterized by great eloquence, ingenuity and power. The judge who presided was called on to consider and decide many nice, and, some of them, novel questions of law. The case was again carried to the :5upreme Court for review. It was argued with great ability by the Solicitor-General, Mr. Felton, for the State, and by Mt. Rutherford for Woolfolk. I made an argument, also, in

6
behalf of the State. The court, after a careful consideration of the many errors assigned, rendered an exceed-
ingly able decision, through his Honor, Justice T. J. Sim-
mons, affirming the judgment of the court below and refusing to grant another new trial. This decision met with universal approval, and was carried into effect on the 29th day of October, r89o, when Thomas G. Woolfolk was publicly hung until he was dead, he having been sentenced by Judge Gober, of the Blue Ridge Circuit, to be executed on that day at a place near Perry in the county of Houston. The evidence, on the last trial, was not wholly circumstantial, as it was on the first. Mr. Birdsong, the jailer of Bibb county, havinP," testified that, intermedtate between the first and second trials, he had heard Woolfolk solemnly state, in prayer to Almighty God (when he was not a ware that the jailer heard the prayer), that the "only thing he regretted was that he had killed his father." This confession, testified to by a man whose veracity was not sought to be impeached and which could not have been impeached, had the effort heen made, left no room for doubt as to Woolfolk's guilt' even by those, if there are such persons, who were not convinced by the circumstantial evidence offered on the first trial, and although Woolfolk solemnly asseverated his innocence at the scaffold and just before his execution, there can be no doubt of his gui-lt of the horrible crime of which he was twice convicted and for which he was finally punished.
There are two comments I think it proper to make in reference to this most remarkable case, and to accompany them with two suggestions.
The final execution of Woolfolk, after his second conviction had been approved by the Supreme Court, was delayed several months by doubts which were entertained as to whether he could be legally re-sentenced in

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vacation by a judge of another circuit tt.an that in which he was convicted. The regular Judge of the Macon Circuit ( Hon. A. L. Miller) had been one of Woolfolk's attorneys prior to his elevation to the bench, and could not, therefore, perform any judicial act in the case. My own opinion was and is, that in that condition of things, any qualified Judge of any other circuit could have legally re-sentenced the prisoner in vacation, but others entertained doubt on the subject, and the SolicitorGeneral, sharing this doubt, properly decided to wait until, the next regular term of Houston Superior Court before making application for a re-sentence, especially as a re-sentence in vacation would have been excepted to by Woolfolk's counsel and the case again carried to the Supreme Court, which would have caused more delay than was caused by waiting until the regular term. I base my opinion on Section 4668 of the Revised Code. I respectfully suggest; however, that Section 4tS68, in view of the doubt entertained by others, should be so amended as to authorize, in plain terms, a qualified .Judge of any other circuit, to re-sentence a convict in vacation whenever the Judge of the circuit where the trial took place and the conviction was had, is disqualified from any cause, and to authorize the Supreme Court to order the execution of the sentence at such time and place as it may appoint in cases of conviction affirmed by that court. It would be well enough, also, for the Statute law of the State to plainly provide that where . a change of venue takes place in the trial of a person accused of crime, the person, if convicted, shall be sentenced and, if sentenced to suffer death, be executed in the county where he is tried and convicted. I think such is now the law, but we have no Statute to that effect and I am not aware that such has ever been decided to be the law of this State by our Supreme Court. In the absence

8
of any Statute or Supreme Court decision on the subject, a person convicted in a county other than the one where the crime was committed, esp~cially of a capital offense, would be very apt to have the question made, to delay punishment as long as possible, if for no other reason.
The other comment is that the Woolfolk case demonstrates the necessity of a change of the law in reference to the trial of criminal, and especially of capital cases. A law which admits of such delay as to enable ingenious counsel to postpone the punishment of a guilty client for more than three years after the perpetration of the crime, must be radically defective. Under the law, as it now stands, it is not difficult to postpone the review of a case by the Supreme Court until the second term after the one at which the party was convicted in the Superior Court,, or to delay a hearing in the Supreme Court for from six to ten months after conviction in the court below. In my judgment, the time allowed for filing and perfecting a motion for a new trial, as well as for disposing of such a motion in the Superior Court and for filing a bill of exceptions to the refusal to grant such a motion, should be limited to a much shorter period than now allowed. I think, too, that capital cases ought to be advanced and more promptly disposed of in the Supreme Court. I am persuaded that much of the dissatisfaction manifested by the people with the administration of the criminal laws, is caused by the unnecessary delay in bringing accused persons to final trial, and that much of the cisposition to resort to summary punishment of persons believed to be guilty is traceable to the same cause.
The case of the State against the Georgia Railroad and Banking Company, which is a suit to recover overcharges in freights on railroad iron transported from Charleston, S. C., to Rome and Dalton under an alleged contract, made by the South Carolina Railroad Company,

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the Georgia Railroad and Banking Company and theWestern and Atlantic Railroad Company (whilst the road of the latter was oJ'erated by the State), with the Selma, Rome and Dalton Railroad Company, has been tried three times in Fulton Superior Court, and the rulings and judgment of that court have been twice reviewed by the Supreme Court. The amount involved is about $3,250 and interest thereon for a number of years. The trials in the' Superior Court resulted once in a mistrial and twice in verdicts for the amount claimed by the State. E::~ch of the verdicts obtained by the State was set aside by the Supreme Court. The decision of that court, on the last hearing, was more favorable to the de-
fendant, in some respects, than Col. N. J. Hammond
(who originally brought the suit) or I anticipated. We have, therefore, agreed to accept a compromise, by which the State is to receive the principal sum sued for, without interest, in settlement of the case--provided my ~uccessor, Judge Lester, approves a settlement on those terms. Whilst the law authorizes the AttorneyGeneral to compromise debts due the Western and Atla~tic Railroad Company contracted when the road was operated by the State, and I have full authority, therefore, to make the contemplated settlement, I preferred, as an act of courtesy to my successor, not to consum-mate it, on the eve of my retirement from office, but to leave its consummation subject to his approval.
A compromise also of the litigation relative to the property formerly owned by the Georgia State lotte'ry has recently been proposed. This property consists of a building and the lot of land on which it stands, situated on Forsyth street, in the city of Atlanta, nearly opposite the post-office, and some other less valuable lots in a different part of the city, the exact location of which I am unable to give. By a resolution of the General As-

10
:sembly, adopted August 6, J885, the Governor was .authorized to dispose of the State's interest in the Forsyth street property at not less than $1s,ooo. Prior to the adoption of the resolution, theYoung Men's Christian Ass::>ciation 0f Atlanta had opened negotiations to purchase that property from the State, but its passage by the Legislature was so long delayed that the Association bought a lot in another locality arid declined to purchase from the State at the price specified in the resolution. Whether that resolution conferred authority to sell on the then Governor only, or on his successor also, is a question certainly not free from doubt. The property is more valuable now than it was then. Before the present or any future Governor can safely act in the premises, additional authority from the General Assembly is, in my opinion, necessary. The proposition of settlement, recently made, contemplates a sale of the. Forsyth street property ; the payment first from the proceeds cf $1s,ooo to the State ; then the payment of clebts due to the widows (or their heirs) of certain tonfederate soldiers for their services as teachers in an orphans' school formerly supported by said lottery; next, the payment of taxes due the city of Atlanta and certain other debts, and the expenses of the litigation ; and, finally, the equal division of the remaining proceeds of the sale between the State and certain of the litigants \vho claim to be the true owners of the property. It is estimated that the property can be sold for a sum sufficient to enable the State to realize from the proceeds, under the proposed settlement, at least !j)zo,ooo. The other property involved in the litigation is to become, under the settlement, the property of the State. This is, substantially, the proposition, as made. I may not state it with entire accuracy, in certain minor particulars ; but I do not think I can be mistaken as to details in any

11
material respect. I feel it to be my duty to say that I think it furnishes the basis for a satisfactory settlement. The parties to the litigation are numerous. Some of them {the widows of Confederate soldiers, for example) whose claims ought to be paid without further delay, if possible. The trial of the cases has been prevented, at almost every term of_ the court, by the death of one or more of the parties or hy other providential cause. The litigation is complicated and hotly contested, and a settlement, I think, on, substantially, the basis proposed, with such modifications as may appear advisable when it comes to be perfected, would be a good one for the State.
I mentioned in my last biennial report that the case of the Assignees and Receivers of the Citizens' Bank of Georgia against certain stockholders of that bank, involving their liability for unpaid subscriptions to its capital stock, had been tried in the Superior Court of Fulton county, before Hon. A. P. Adams, the then judge of the Eastern Circuit, and was pending in the Supreme Court un exceptions filed by both sides to Judge Adams' decision. It was afterwards heard in the Supreme Court and the decision of the lower court was affirmed. The case is reported in 8r Georgia Report, p. sao. The amounts decreed to be due, by the numerous stockholders, respectively, have not all been collected by the Assignees and Receivers of the bank. I have made re:.. peated efforts to have the sums due collected. There has been some difficulty, I understand, in having the costs and expenses of the litigation properly apportioned amongst the parries, but I presume this can be done without much further delay, and that the amount coming to the State will soon be realized.
The suit brought by said Assignees and Receivers against the Western and Atlantic Railroad Company to recover a fraction over $r8,ooo paid to said company, as

12
a preferred creditor, by the Cashier of the Citizens' Bank on the day the bank suspended, was tried in Fulton Superior Court at its last term, and resulted in favor of the defendant. A similar suit, brought against the Gate City Bank, involving about $8,ooo, was tried at the same term of said Court, and was decided in favor of the defendant, also. Judge Marshall J. Clarke presided in both cases. These suits were based on Section 4429 of the Revised Code. The cases are now pending in the Supreme Court, and were argued in that court last week. As the State will be entitled to whatever amounts are recovered, I took a prominent part in the argument of the cases in both courts. Should the Assignees and Receivers of the Citizens' Bank be succ~ssful in recovering the principal sums sued for, and interest thereon ( ma~ing an aggregate of over $4o,ooo ), and the amounts decreed to be due by stockholders, for unpaid subscriptions, above referred to, are all collected, they will have funds in hand nearly, if not quite sufficient to pay the balance of the bank's indebtedness to the State.
There is still another case, of the same character, pending in Fulton Superior Court, against the Atlanta National Bank, which involves several thousand dollars. That case was once tried in that court, and re~ulted in a verdict for the defendant, but a new trial was granted by the then presiding judge. It will be controlled by the decision of the Supreme Court in the two cases above referred to.
Exceptions have been filed to certain payments made by said Assignees and Receivers to particular creditors of said bank, and to commissions alleged to have been illegally retained by said Assignees, etc. The exceptions to the payments referred to are bas.ed on the right of the State to priority of payment over other creditors. The
trial of these exceptions, before Judge Marshall J. Clarke,

was commenced on the 25th day of last month. Not being a jury case, the judge could hear it on Saturday only, under the rules of practice applicable to that court, and the trial not having been finished on the 25th ultimo, was adjourned over to last Saturday, when l, being engaged in the argument, in the Supreme Court, of the cases against theWestern and Atlantic Railroad Company and the Gate City Bank, already referred to, it was further adjourned over until next Saturday, the 8th day of the present month, which is the day my term of office expires. The State will be represented, therefore, in the further hearing of said exceptions, by my successor. I will cheerfully furnish him, however, with any information in my power that will aid him in making a satisfactory disposition of the case.
I have not brought suit on a certain bond, executed by the Citizens' Bank shortly before its suspension, for reasons which have heretofore been explained to previous Executives and Committees of the General Assembly, but which cannot be stated, with propriety, in a public report. I will communicate them to my successor and he can then determine whether ~ suit on that bond is advisable, under all the circumstances, and act as he and the Governor, soon to be inaugurated, may deem best for the interests of the State.
In r887, the Comptroller-General issued a ft. f~
against the Singer Manufacturing Company for taxes due by that company, under the General Tax Act of 1886, requiring it to apply and pay for a license for selling its sewing machines in this State. The company applied to Hon. W. T. Newman, U. S. Judge, for
an injunction to restrain the enforcement of the ft. fa. I
resisted the application, and the case was argued by Judge George Hillyer on behalf of the company, and by myself for the State. Judge Newman refused to grant

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the injunction prayed for and dismissed the bill. The company entered an appeal to the Supreme Court of the United States. I am advised by the clerk of that court that the case will probably be reached in the early part of this month. I have prepared a full brief to be used on the hearing in that court an,d am expecting daily a telegram from the clerk, advising me what day it will be reached. Several important constitutional questions are involved. The taxes claimed were paid by the company before entering its. appeal.
Soon after the adjournment of the last General Assem-
bly, the Comptroller-General issued a .ft. fa. against the
Pullman Palace Car Company for taxes imposed by the General Tax Acts of r888 and r889. The company filed a bill in the Circuit Court of the United States for the . Northern District of Georgia, praying an injunction against the collection of the tax and penalty claimed by the Comptroller-General to be due. Judge Newman granted a restraining order until a hearing could be had before Judge Pardee on some day this fall to be appointed by the court. I have prepared and filed the answer of the Comptroller-General to the company's bill, and the application for a permanent injunction will be heard probably at an early day. Judge Kontz, the Recorder of the city of Atlanta, is the local counsel of the company, and my successor can doubtless arrange with him a convenient day for the hearing. The case against the Pullman Company, referred to in my fourth biennial report, which involved the collection of the tax of $z,ooo imposed by the General Tax Act of r886-87, was decided last spring in favor of the company, by Judges Pardee and Newman. The. Supreme C::ourt of the United States had previously decided a similar ta~ to be violative of the " Commerce clause" of the Constitution of the United States in Deloup vs. The Port of

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Mobile, and I did not, therefore, enter an appedl from the decision ofJudges Pardee and Newman.
Another tax case. arose out of the issue of a .ft. fa. by
the Comptroller-General against the Atlanta and Florida Railroad Company to recover the taxes assessed against its property, and for the penalty imposed by law for nonpayment. The company, represented by Col. P. L. Myqatt, filed an affidavit of illegality and claimed that the State could only tax the company on its income like the property of other railroad companies whose charters exempt them from taxation on their property. The case was argued before Judge Marshall J. Clarke, hy Col. Mynatt in behalf of the company and by myself for the State, and resulted in a decision dismissing the affidavit of illegality. The company excepted and the case is now pending _in the Supreme Court of this State.
The Comptroller-General also issued ft. fas. against
the Brunswick and Albany Railroad Company, the Central Railroad and Banking Company of GeOl"gia, the Southwestern Railroad Company, the Richmond and Danville Railroad Company, the Atlanta and West Point Railroad Company and the Georgia Pacific Railroad Company, for the license required of each of them, by the Act of the General Assembly, ....approved November 12th, 1889. Each of said companies, through their respective attorneys, filed a bill praying an injunction against the collection of the license, on the grounds, as alleged, that the said Act is retroactive and, therefore,. obnoxious to our State Constitution, and that it infringes also the "Commerce clause " of the Constitution of the United States. The Central Railroad and Banking Company of Georgia and the Southwestern Railroad Company, having united in filing a joint bill, I brought that to a hearing, as a test case. It was argued before the Hon. A. L. Miller, Judge of the Macon Circuit, by

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Judge R. F. Lyon, the counsel for the complainants, and by myself for the State. The license tax involved was for the year 1889. Judge Miller sustained the bill Dn both grounds, and I sued out a writ of error to our Supreme Court, where the points were again argued by Judge Lyon and myself. The Supreme Court held that if the Act was constitutional, the license for 1889 could not, under a proper construction of the statute, be demapded Df said companies until the 12th day of November 1890. It did not decide the questions raised as to the constitutionality of the law. This decision applied to the other cases also, and the Comptroller-General, under my advice, directed the dismissal of the levy in each case and will renew his efforts to collect the licenses after the 1zth day of this month.
The suit which was pending in Butts Superior Court, at the date of my last biennial report, in favor of the
State against Henry J. Lamar, and which involved a
small mill located on the creek near the Indian Spring, has been dismissed in accordnace with the resolution of the last General Assembly directing its dismissal.
The Georgia Pacific Railroad Company commenced, two or three months ago, to locate another track of its road on the right of way of the Western and Atlantic Railroad, extending from at, or near, the Union depot in Atlanta, and running several miles. Your Excellency requested my opinion as to its authority to do so, and I advised you, after an examination of the Acts of the Legislature bearing on the subject, that no such authority is conferred by any existing law of this State. The company, however, manifested a disposition to continue the work it had begun. I then, by your direction, caused a petition to be prepared, praying an injunction. Before the petition was submitted to the chancellor, for his sanction, the counsel for the company requested

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that the presentation of the petition should be withheld until a conference was had between the general counsel and the local counsel of the company, the result of which was to be communicaied to me, and the work, in the meantime, to be suspended. To avoid litigation, if possible, I consented to thi~, and was soon the1eafter
notified that the compan v had abandoned its claim.
I believe there is nothing dse, of public interest, to be embodied in this report.
I trust it may not be inappropriate for me to conclude it with the expression of my grateful appreciation of the confidence which all the Departments ot the State Government, as well as the people generally, have reposed in me during the ten years of my official service. If I have, in any respect, failed to merit this confidence, it has not been because I have not conscientiously and faithfully tried to do so.
Very Respectfully,
CLIFFORD ANDERSON,
Attorney-General.