Report of Attorney-General with an appendix containing opinions: Wm. A. Little, Attorney-General

GEORGIA. ATTORNEY-GENERAL OPINIONS
1891-1892
WM. A. LITTLE, ATTORNEY-GENERAL

REPORT
OF
ATTORNEY-GENERAL,
1892,
WITH AN APPENDIX CoNTAINING OPINIONs.
Wm. A. LIITLE, AttorneyzGeneral.
ATLANTA, GEORGIA: GEO. W. HARRISON, ~TATE PRINTER.
(Franklin Publishing Hou.se.1
1~92.

REPORT.
His Excellency, W. J ..Northen, Governor:
Sm--A statement of such of the business of the State as the Attorney-General has been in charge of since September 2, 1891, and which is deemed of sufficient . general importance, is embodied in the following report:
In consequence of the serious bodily affliction of my predecessor, Judge Lester, I fonnd at the time of my accession to office an accumulation of business requiring more than the ordinary amount of labor incident to the discharge of its duties; this, added to the naturally growing demands of the office, made such inroads upon my time, that in some cases I was prevented from bestowing as much attention to particular matters as I should like to have given.
Nearly all of the cases in litigation, in which the State of Georgia was au interested party, and which were pending in the several courts, both of the United States and of this State, at the time of my accession to office, have been disposed of, and only two or three remain on the docket. The manner of such disposition will hereafter be referred to more in detail; one of the excepted cases, is that of the Atlanta & West Point Hailroad Company vs. The Comptroller-General, being an

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application for an injunction in Fulton Superior Court~ to restrain the collection of the tax for hauling sleer)ing cars. This cat~e is still pending, but ready for trial. Another exception is a case pending in :B~ulton Superior Court, relating to the Citizens Bank Matters.
NEW LITIGATI0N.
COUNT\'" TAXATION OF RAILROAD PROPERTY.
At the time of my qualification there was pending in the Supreme Court of the State, the case of the Columbus Southern Railway Company vs. William A. , Wright, Comptroller General. This was a proceeding where the railroad company sought to enjoin the collection of a tax levied on the property of the Columbus Southern Hailway Company for county purposes under the Act of 1889. Having been of counsel for the railroad comp;my in the court below, I was disqualified from representing the State in the further prosecution of the case.
At the commencement of this litigation, AttorneyGeneral Lester was unable because of sickness, to represent the Comptroller-General, and Hon. Clifford Anderson was appointed by the Governor to do so. This appointment was continued in the Supreme Court, and Messts. Andeeson and W. C. Glenn (who was the author of the original legislation) efficiently and successfully maintained the constitutionality of the Act which was there assailed, and a decision has been rendered by our Supreme Court fully sustaining its constitutionality. The case, however, was carried by the railroad company to the Supreme Court of the United States, where it is now pending, and it is prob-

5
able that an early decision will be reached, and this very important question of taxation finally settled. The principle involved in this case extends also to the right and manner of municipal taxation of the same property, and the decision when rendered by the Supreme Court of the United States will probably settle the legality of the subsequent Act of 1890, which authotizes the taxation of similar property by municipal corporations. In the meantime, however, other railroad companies in the State have recognized the binding force of the decision of our .own Supreme Court, and voluntarily Inade payment to the counties and cities entitled. Quite a number of executions, both for county and city taxes have been issued by the Compteoller-General against eailroads, which are in the hands of receivers, appointed in some instances by our State courts, and in others by the United States Courts. These executions cannot be levied on the property of the different railtoad companies while so in the possession of the respective courts. Inasmuch, lio~ever, as in every instance they are liens higher in dignity than any created by the raileoad corporations, the Comptroller-General, under my advice, has placed the same in the hands of the sheriff of each county entitled to the tax, so that when the several cotporations are restored to company management, the amounts may be collected. foe the benefit of the counties and municipal organizations entitled, or they may now through petitions filed in the proper judicial tribunals aEk the necessary orders for payment.

HAILROAD COMMISSION CASES.

; r .~Ji \

By an Act of the General Assembly, approved De-
cember 18th, 1890, it was the duty of the Railroad

6
Commission of Georgia to investigate through freight rates from points out of Georgia to points in Georgia, and from points in Georgia to points out of Georgia, and when, in their opinion, such rates as charged are excessive, unreasonable or discriminating, the Com. mission shall call the attention of the railroad officials to the fact, and urge a change of such objectionable rates; and ifsnch rates be not so changed, it was made the duty of the Commission to present the facts to the Interstate Commerce Commission, and apply to it for relief.
It was made by the same Act the duty of the Attorney-General to represent the State Commission before the Interstate Commerce Commission, whenever called upon in such cases. Acting under the provisions of this legislation, the Railroad Commission of Georgia investigated the through rates of freight charged and collected by the several through lines from eastern points, viz.: New York, Boston, Philadelphia, Baltimore, etc., to points in Georgia; and from western, that is, Ohio river points to points in Georgia. After such investigation, the Commission came to the conclusion that such rates of feeight in every instance were obnoxious to section 4 of the Act of Congress, entitled "An Act to regulate commerce," and known as the ,, long and short haul" clause of the Act.
Inasmuch as the State Commissioners construed section 4 to lay down the rule,'that a greater charge should not be made for the transportation of such goods, under similar circumstances and conditions, for a shorter than a longer haul, and as the transportation over the railroads in Georgia was made under like circumstances, I presented at their direction, their complaint against each and every one of the through lines, both combined water and rail, and rail exclusive, which,

7
under a common arrangement, transported through freight from eastern and Ohio river points to interior points in the State of Georgia. These cases were both numerous and important; and involved the attendance of many witnesses, and I very cordially joined in an application to the Interstate Commerce Commission to hear them in Georgia. The application was granted, the Interstate Commerce Commission came to Georgia and heard the cases in Atlanta, in March last, and now have the same under consideration, and it is expected that the Commission will reach a determination of the questions ]nvolved at an early day. But one question is practically involved in the determination of these cases, that is, shall the through lines carry to a terminus of a local line in Georgia, an article of interstate commerce under the same circumstances and conditions that a similar article is carried to a station on its ~ine nearer the shipping point, and charge more for the transportation of the article to the station than it charges at the terminus, when there is no water competition.
RICHMOND & DANVILLE R~ILROAD CASE,
A very important question affecting the powets of the Georgia Railroad Commission has arisen in the case made by the Richmond & Dan ville Railroad Company against the Georgia Railroad Commissioners. By an Act of 1889, the Georgia Railroad Commission was empowered to make and establish maximum joint rates for the transportation of freight within this State over two railroads, or parts of two difl'erent railroads not under the same management or control. In pursuance of this authority, the Georgia Commission es-

8
tablished such joint rates to be the sum of the locals, less ten per cent. The Richmond & Danville Railroad Company refused to put this rule into operation, but charged for the transportation of such freight, the local rates fixed by the Commission for transportation over its Jines. Complaint was made to the Commission, and that company was notified, that unless restitution was had, suits would be brought to enforce the penalty prescribed by the statute, in each case. To prevent such suits, the railroad company filed a petition for an injunction in the CircuitCourtofthe United States for the Northern District of Georgia, against the members of the State ~ailroad Commission ; averring that the Commission had no constitutional right to make such a rule, because that rule was unreasonable and unjust, and that rate should not therefore be enforced, and inasmuch as the Georgia statute made the rule and schedule of rates adopted by the Commission final and conclusive on the railroad, the same was violative of the Federal Constitution. An order was granted by the judge presiding, restraining the Railroad Commission from instituting the suits to recover penalties for violation of this rule, until a further order of the court, and the application for an injunction was set for a hearing. The case was argued at length before Judge Newman ; the law member of the Railroad Commission, Judge Fort (who appeared with myself), presented in an exceedingly forcible manner the legal positions insisted on by the State Commission. Up to this date Judge Newman has reserved his decision, but will doubtless render the same during the present term of the court. The question involved in this case, is one purely of law, of very great importance and directly attacks the constitutional power of the Railroad Commission, t0 make and establish rates of any

9
kind for the tmnsportation of freight over railroads in this State, which shall be final and conclusive on the railroads. The railroad company presented and argued the decision rendered by the Supreme Court of the United States in volume 134, known as the MinneBota case; and insisted upon the principle, that in every instance, the transportation company was entitled to make before the courts the question whether the rate established by the Commission was a reasouable and just rate, and have the same decided as a judicial q uestion. In view of the common law, and the previous adjudicatious of the question by the Supreme Court of the United States, before the decision in the Minnesota case, I intertained but little doubt as to the constitu-
tional power of the legislature to invest th" e Commis-
sion with authority to determine what rates are equal and reasonable, and make such determinations final. Indeed, resting upon the adjudication of the Tilley case, I have reason to believe that the railroad authorities in this State, aequiesced in the rulings there made as the law.
The case of Minnesota extends further than I conceived the law to be before that time; a material question is, whether a proper application of the de:;ision restricts its ruling to the adjudication of the statute of Minnesota, which created the Railroad and Warehouse Commission for that State, which statute is essentially different from that of the State of Georgia. The q nestion is a most important and serious one, and should the determination of the court in which it is now pending be adverse to the construetion aud applicatiou of it as insisted by the Railroad Commission, I would advise that the question be presented as soon as possible to the Supreme Court of the United States in proper form

10
for final determination, to the end that an early ruling be had.
There are two criminal cases now pending in the Supreme Court of the United States, returnable to the October term, 1892, which is lJOW in session.
D. Frank Gunn was indicted at the April term, 1891, of Houston Superior Court for a misdemeanor, charged with hunting game with gun and dog on the Sabbath day, under section 4580 of the Code; the case was transferred to the county court of Houston county; he was tried and convicted. A petition for certiorari was presented to the judge of the Macon circuit who refused it, and our Supreme Court, at the March term, 1892, affirmed the ruling of the circuitjudge. The ground of defence was the Georgia statute is in violation of the Constitution of the United States, and a writ of error was sued out to the Supreme Court of Georgia.
In the other case, L. F. Hennington, superintendent of transportation was indieted in the Superior Conrt of Dade c0unty for a misdemeanor, charged with running freight teains on Sabbath day ovee that part of the Alabama Great Southern Railroad which lies in Georgia, in violation of section 4578, of the Code of Georgia.
The plea in this case was that this statute is in violation of the Constitution of the United States. Our Supreme Court, at the March term, 1892, afihmed the judgment of Dade Superior Court, and a writ of error to the Supreme Court of Georgia was sued out in this case also.
These two cases will have precedence of general business in the Supreme Court of the United States, and it is expected that each of them will be determined at the present term.
In addition to the foregoing, by direction of the Railroad Commissioners, I have instituted a suit in the

11
Superior Court of Floyd county against the United States Express Company to recover the penalty incurred by that company for a violation of the rules of the Commission, in charging for the transportation of matter by express rates in excess of the schedule rates fixed by the Commission, which suit is now pending. The Treasurer and certain sha1eholders of that company have very lately filed in the Cireuit Court of the United States for the Northern District of Georgia their bill, in whieh they seek to enjoin the Railroad Commissioners from any interference with the business of the company and from any effort to enforce the tariff rates, rules and classification made by the Commissioners, and from instituting any proeeedings against the express company for alleged violations of such tariffs, and from exercising any of the powers conferred on them by the Act of the Legislature of Georgia approved Oct. 21st, 1891.
'fhe Act referred to gave to the Railroad Commission the same powers to make and regulate a tariff' for transportation of freight by express (in general) as theretofore existed in said Commission over transportation of freight by railroads. The bill above referred to attacks the Act of 1891 as being unconstitutional both in substance and form, and is set for a hearing on November 12th.
'fhere have also been exhibited in the Superior Court of Fulton county in the name of the State, returnable to the September term, between fotty and fifty actions at law against different persons to recover parts of the rights of way of the Western and Atlantic Railroad, on which encroachments have been made.
Also, in the Superior Court of Cobb county, an action to recover one hundred acres of land to which it is believed the State's title is good.

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At the request of the Comptroller-General I am now in connection with the County Attorney of Bibb county preparir;g. to institute, by way of an intervention, a proceeding seeking to collect the county tax of Bibb county assessed on the 11roperty of the Central Hailroau and Banking Company of Georgia (proper), due for the year 1891, under the Act approved October 16, 1889, which \Vill involve a contraction of that portion of the charter of the railroad company which fixes its status as to taxation.
It will certainly not he doubted, from the amount and character of business referred to in this report, that the labor incident to the office of Attorney-General is very large in volume and highly important in ehamcter.
SETTLEMENT OF LITIGATION OVER Q.EORGIA STATE LOTTERY PROPERTY.
By a resolution approved December 19th, 1890, the General Assembly authorized a settlement of the litigation then pending in relation to the property f(wmerly belonging to the Georgia State Lottery, provided that the amount realized out of such settlement should net to the State of Georgia not less than $20,000. Acting under the authority granted in this resolution, and by the approval of the Governor, I consented to a decree in the Superior Court of J1~ulton county, where these cases were pending, which made a full, final and complete settlement of all the matters existing between the parties at variance, and terminated this troublesome and much litigated subject. By the terms of this decree, the lottery property was sold, and out of the proceeds, the sum of $20,000 was first paid to

13
the State. The remainder of the purchase money, after payment of expenses, fees, costs, etc., was agreed to be divided in certain proportions between the various claimants to said fund, and the State of Georgia; the State receiving one-half of the net proeeeds, above the sum of $20,000, and the several claimants as named in the decree reeeiviug the other half of such proceeds. Under the terms of this settlement, the entire amount received from this source, and paid into the Treasury of the State of Georgia, was thirty-three thousand eight hundred and twenty-seven and sixty-seven oue-hundredths ($33,827.67) dollars.
PROCEEDINGS AGAINST TRESPASSERS ON Cl<JRTAIN LOTS OF LAND BELONGING TO THE STATE.
The Geneml Assembly by a resolution approved October 21, 1891, directed that the Attomey-General,. through information to be furnished to him by the several ordinaries of the counties in whieh were situated certain lots of land not granted by the State but set aside for school purposes, should investigate the status of the same, and if any of such lots of land had been trespassed upon or damaged by the eutting and removal of the timber, he was directed in person, or through the Solicitor-General of the circuit, to institute suits to recover damages for such trespassing.
In obedience to the directions of this resolution, I very soon after the adjournment of the General Assembly addressed to the ordinaries of each of the several counties where the several lots of land were situated, a communication reciting this resolution, and asking to be furnished with the necessary information on whidt

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suits might be based as contemplated in the resolution. To very many of these communications I have been unable to get any response. From others I have been informed that the officer addressed had no information on the subject; but would endeavor to obtain it and send me; to many others I received prompt replies and found so much difficulty in ascertaining the status of particular lots, that I have directed only two suits to be brought in Wilcox county, for trespassing on lots numbers 10 and 100, 1st district.
I am sure that the method of determining what trespasses have been made on these several lots of land, and recovering damages done the same provided in the resolution, is not sufficient to ascertain and fix the rights of the State therein. I found on investigation that some of the lots of land mentioned, had been cleared aud cultivated for the last fifty years; that they had been sold and resold, and been in occupancy so long that it was a great surprise to present occupants to be informed that the State had never parted with its title to the same.
Against several of said lots wild land tax fl. fas.
have been issued by the State, and the lots duly sold by the sheriff of the respective counties; and many lots had passed by sale into different hands.
I deem it best to state these facts in order that the General Assembly may take such further action relating to the same as may be deemed best. 'rhe detailed statements received as to these several lots are on file in my office, and full explanation of the same will be furnished whenever desired.

15
THE STATE'S PROPERTY IN TENNESSEE.
By a resolution approved December 9, 1890, the Attorney-General was <iirected to investigate and report what part of the State's property in the State of Tennessee, connected with the Western and Atlantic Railroad, has been condemned by the city of Chattanooga, and sold for taxes, under any process whatever, or in any way or manner been disposed of, and what is the proportion of the real estate owned by the State in the year of 1870 now in the possession of tbe present lessees of said road.
I am not fully informed as to what action my predecessor took under this resolution, but beg leave to submit the results of my ow11. inquiry and action on the subjects covered by the scope of this resolution.
The only property connected with the Western & Atlantic railroad which was condemned by the city of Chattanooga, besides certain parcels taken for streets and hereafter specifically set out, so far as I have been able to ascertain, was the right of way through Broad street, from Market street to the Tennessee river. This condemnation occuered pt'ior to 1874, and was made the subject of litigation in the courts of the state of Tennessee, and was finally adjudicated against the' state.
I am not informed of any land which has been sold foe taxes, oe othet peocess. The city of Chattanooga in extending its steeets, encroached on and occupied some of the land belonging to the state of Georgia, for which a demand was made for the payment of damages, and a settlement of the same has been agreed on between the city of Chattanooga, and the representatives of the state. All descriptions and details showing the present status of the lands of Chattanooga, belonging

16
to the state are fully set out in this report, under the title of Western & Atlantic Railroad property.
In order to further carry out the spirit of this resolution I have prepared a full and complete abstract of title to all the land in the city of Chattanooga, owned by the State of Georgia, and have tiled sush abstract of title in the executive office, and furnished to the present lessees of the Western & Atlantic Railroad a copy of the same; and have entered into an agreement with the lessees, that they will, without expense to the state, place at the corners of each piece of land described in the abstact, substantial stone posts to mark the boundaries of the state's property. This is essential, because the growth of the city of Chattanooga, the extension of streets, and the length of time which has elapsed since such lands were conveyed to the state, render the old metes and bounds, by which the lands are described, uncertain; and before many years it would be very difficult to finally and certainly locate the same.
LITIGATION TOUCHING THE RIGHT OF WAY OF THE WESTERN & ATLANTIC RAILROAD IN THE CITY OF ATLANTA.
By a resolution of the General Assembly, approved September 25th, 1891, I was directed by the Governor to represent the interest of the state in the litigation then pending, touching the right of way of the INestern & Atlantic Railroad, in the city of Atlanta. This litigation arose over a bill filed by the lessees of the Western & Atlantic Railroad vs. the Central Railroad & Banking Company of Georgia, and the East Tennessee, Virginia & Georgia Railway Company, and included the right of entrance of the last named company on the

17
right of way as claimed by the Western & Atlantic Railroad Company, between Forsyth and Whitehall streets, in the city of Atlanta. The resolutions directed such representation as in the judgment of the Governor and myself should be taken for the benefit of the lessees, and for the protection of the property and interests of the Stat~.
In obedience to the same, I filed a petition in the Superior Court of Fulton county, to have the State of Georgia made a party complainant to said proceediugs. Before the hearing of the motion which was resisted the pending case between the lessees and the defendants was settled, and the case dismissed. Hence, there is no pending litigation touching this subject.
However, as the question of width and location of the right of way of the Western and Atlantic Hailroad in the city of Atlanta is a very important one to the State of Georgia; and in view of the facts that the deed which conveyed to the State this right of way was so framed as to convey a right of way of such width, as might be surveyed and located by the chief engineer of the company; and as the engineer who surveyed and located the same is dead, I deemed it best to perpetuate the testimony of the only witnesses in the State of Georgia, of whom I was informed, and by whom the fact of the location and the width of the right of way as actually laid oft' and located by the engineer, could he proven; and under the terms of our statue, I prepared certain intenogatories, and had executed depositions of Messrs. L. P. Grant, and Jonathan Norcross, touching these questions. '!'heir answers to the same have been carefully taken, and deposited in the office of the clerk of the Superior Court of Fulton county according to law, and such testimony will be accessible and ad-
2

18
missible now and he1eafter, whenever this subject may be the question of litigation.
THE WESTERN & ATLANTIC RAILROAD PROPERTY.
Besides the question growing out of the right of way of the ~Western & Atlantic Rail road, in the city of Atlanta, there are several other questions which will in all probability sooner or later arise, involving property rights claimed by the State of Georgia, connected with the Western & Atlantic Railroad, which are now in an unsettled condition, and of which an early settlement, in my opinion, would conduce to the interest of the State.
One of the most important of these, is the union passenger depot, and the rights of different parties therein. The lPssees of the Western & Atlantic Raill'oad, taking all the rights of the State in said property, have had some contention with other railroad cornpanies in relation to their rights to use this depot building. Such diffe!'ences, however, have been adjusted hy these parties, the terms of which settlement I am not fully aware, and being a matte!' exclusively betweeu them, I have no right to .inquire. Such settlement could of course extend only to the tel'm of the lease, and would not in any way atlect the right, or claim of the State therejn.
The contract and conditions upon which the passenger depot in Atlanta was erected, appears to be not well understood; and whether it is in Wl'iting, l have not, after much inquiry, been able to ascertain. The land upon which it is erected, belonged to the State of Georgia, anu I know of no fact which induces me to believe that th~; State has ever parted with any of her interests in the same. No question afi'ecting the title or owner-

19
ship of this property has arisen in the courts during my term of office. But a property right, which is uow difficult to definitely fix and measure, will not be more easily ascertained and determined after a lapse of thirty years.
There are also, as I am informed, many encroachments on the original right of way of the Westem & Atlantic Railroad in Fulton county, concerning which snits have been brought as before stated.
There are also some disputed rights between the State of Georgia and other parties, in relation to lands connected with theW estem & Atlantic Hail road, in the city of Chattanooga. A bill has been filed, and is now pending in the Chancery Court of Hamilton county, Tennessee, against the lessees of the Western & Atlantic Railroad, the State of Georgia and other parties, by the East Tennessee, Virginia and Georgia Railway Company. By this bill it is sought to have the land upon which is erected the Union Passenger Depot in the city of Chattanooga, sold, and the proceeds equitably divided between the complainant and the defeudants, on the ground and for the reason that the property belongs in part to the complainant, and cannot be subdivided.
This case is a very important one, and I have given it due attention. The land upon which the Union Passenger De]Jot is erected, formerly belonged to the State of Georgia; and prior to 1860, a depot building was erected at the joint expense of the Western & Atlantic Railroad, and the Louisville & Nashville Railroad, and perhaps by the East Tennessee, Virginia & Georgia Railway Company. Pl'Opee stipulations were made as to the amounts to be paid in by each, alHl the use of the building when et'ected. The old building was enlarged and improved dueing the term of the former lessees. On investigation of the records in Chattau ooga, I find

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duly recorded, a deed from the State of Georgia to the Louisville & Nashville Railroad, conveying one half of the land by metes and bounds, on which the depot was erected. This deed was, to a certain extent, conditional; and it is claimed that the condition has been fully complied with. Several months since the East Tennessee, Virginia & Georgia Uailway Company abandoned their use of the Union Passenger Depot; and the present litigation institued by that company seeks, as before stated, to have the property sold, and reimburse the company for the amounts expended by them. The case will be heard and determined during the winter.
The amount fixed and agreed on as compensation to the State of Georgia for condemnation of its land for parts of streets in the city of Chattanooga are as follows: Forty-six (46) feet in the line of 11th street, four thousand and six hundred ($4,600) dollars; thirty (30) feet in the line of Columbia street, nine hundred ($900) dollars, making a total of fifty-five hundred ($5,500) dollars. It was agreed that this sum should be paid in installments, and two thousand dollars has been collected and by me paid into State Treasury, the balance is expected to be paid at an early day.
A small plat of land in the city of Chattanooga known as the "triangle" was claimed by the city authorities who were in possession. After protracted litigation possession was recovered for the State, and being property which passed by the lease, its possession was turned over to the lessees, who, it is understood, have leased it to the Southern Express Company for the term of the lease, and that company is now erecting a large brick building on the same for its use.
The facts in relation to the property designated as the Bates block are well-known to you, it is therefore

21
only necessary to mention that this was a vacant lot in the business portion of the city of Chattanooga, in possession of the first lessees, under their contract; it is understood that the same was leased to Mr. Bates for their term, and he erected thereon a number of brick build ings, used for mercantile purposes, which were to be removed at or before the expiration of their term ; they were not removed. When the State entered into the present contract of lease the building-s still remained on the land, which by_ the terms of the existing lease went into possession of the present lessees; it is further understood that the present lessees released the land to Mr. Bates, but expreRsly reserved from the operation of their contract of lease all qnestions as to the ownership of the buildings so erected on this land of the State. I am not informed of the fact if any change in the status of this property has since been made.
Several weeks ago the Stone l<-,ort Land Company hastily erected a fence around a strip of land between Market street and the track of the Western & Atlantic Railroad. This land has been claimed and recognized as the property of the State of Georgia, and I believe
the State's title to it to be good. A bill was immediatly
filed for the State in which the lessees of the Western & Atlantic Railroad joined, praying for an injunction restraining the erection of a building on the land and that title be decreed to be in the State of Georgia. The hill is pending and the prospect is that much litigation will be the result. I have every confidence, however, that the right of the State to the land will be established.
There is also another small tract of land outside the corporate limits of Chattanooga, near Oitico furnace. It consists of about three acres, and through it a suburban railroad has taken a right of way for which

22
payment should be had; the deed conveying this land to the State is not on record and may have to be established. I have recently come into possession of facts in relation to this title, which at a very early day should be perfected. The State has been in possesion for a long time, recently, however, some differences have arisen as to its boundaries, which are not yet settled. The land has some considerable value, and prompt action will be necessary to preserve it for the State.
The right of way through Broad street to the Tennessee river, forme ely owned by the State, was, by adjudication of the courts of Teunessee, lost to the State many years ago as heretofore stated. The facts concerning which are well-known and are matters of record.
In this connection 1 wish to say that I have been impressed with the fairness and liberality of the present lessees, in relation to all matters of the Western and Atlantic Railroad property with which I have had connection, where the State's interests were invohed.
I am not willing to close this portion of my report without expressing my individual belief that the interest of the State in the property known as the \Vestem and Atlantic Railroad property would be subserved by the permanent employment of a special attorney charged with the preservation of the legal rights of the State to the various items of this proverty lying in two States and of great value. Were all the items of this property directly connected with the operation of the railroad no such necessity would arise, but constituting as it does not only the rights of way and terminal grounds in two large and growing cities, but also in independent and disconnected lots of land of great value, improved in certain instances by tenants under a ground rent, in the erection of large, valuable and permanent structures,

""""
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rights are liable to be jeopardized, especially when it is known that descriptions of tand conveyed by metes and bounds, by time and rapid growth of the cities have become indefinite, ,and transactions connected therewith having been had when these values did not attach, did not receive that care and attention as to details which prudent business methods now eequire. Your own experience will doubtless corroborate my own, that howsoever willing and ready the officers of the State may be to act, and however fully the lessees may co-operate, many occasions will arise, when a thorough detailed knowledge of the different items of property, the sources and regularity of titles, the proper and timely execution of sueh contracts, and this failing prompt legal proceedings .to clear and strengthen impel'fect rights, could not fail to be of material service.

COLLECTIONS FOR THE STATE.

Since September, 1891, the amounts named below

have been collected from cases in litigation and paid

into the Treasury of the State, to-wit:

From Citizens' Bank cases,

$17,355 07

" Sale of lottery property,

33,827 67

" Pullman Car Co., litigated taxes,

3,145 79

" City of Chattanooga,

2,000 00

Total,

$56,328 53

Collections of the foregoing sums have been made in a geeat measure feom cases which have been pending for a considerable length of time, and counsel employed by former administations to assist the Attorney-General have rendered very valuable service to the State.

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In conclusion I desire to further say that during my

terrn of office I have very frequently felt the need of

easy access to the official opinions of my predecessors

in office. These opinions have been not only the

result of much care and labor on questions which have

already arisen, but are valuable also as precedents in

the various departments, where consistency in rulings

is very much to be desired. To obviate this need as

far as I can and in order to furnish my successors

reasons for the advice given by me to the executive

department of the State, I have prepared and attach

to this report, copies of such official opinions of a gen-

eral nature, as might be desired to be preserved for the

purposes indicated.

I take this occasion to reeord my high appreciation

of your most thorough and efficient administration as

Governor; and also to express my grateful acknowledg-

ments for the kindness and consideration which I have

both officially and personally received at your hands.

I am,

Very respectfully,

WM. A. LITTLE,

Attorney-General.

APPENDIX.
OPINIONS OF ATTORNEY-GENERAL LITTLE.
TO THE GOVER~OR.
No. 1. Eligibility of members of General Assembly for appointments.
2. Veto of local bill for want of published notice. 3. Appointment of judge county court Baker county. 4. Extradition of persons charged with bastardy. 5. Deposit of public funds. 6. Apportioning and disbursing Common School fund under
the Act passed 1891. 7. Powers Local Board of Trustees of school for colored persons. 8. Construction of Act 1891 to amend section 1103 (J) of the
Code. ll. Construction of Act 1891 for appointment of physician of
Lunatic Asylum. 10. Disbursement of direct tax. 11. On proposed constitutional amendments. 12. Right of party who furnished evidence to convict to the
offered reward. 13. Payment of reward to administrator. 14. Payn:ient of appropriations for military encampment. 15. Power of Governor as to quarantine regulations. 16. Appointment to vacancy in office of Tax Receiver.
3

26
TO THE COMPTROLLER-GENERAL.
No. 17. Liability of individals to existing laws regulating insurance business.
18. Liability of property of Central Railroad and Banking Co. to county and municipal taxation.
19. Return of railroad property for county taxation. 20. Liability of improvements at Indian Springs for taxation.
TO STATE SCHOOL CO.MMISSIONER.
No. 21. Authority of 0ounty School Boards of Education. 22. Term of office of County School Commissioner.
TO COMMISSIONER OF AGRICULTURE.
No. 23. Are illuminating oils stored in this State required to be inspected?
24. As to payment of salaries to inspectors. 25. Construing Act of 1891 in relation to inspectors.
TO SECRETARY OF STATE.
No. 26. Construing the Aet of 1891 in reference to incorporation of railroads.
TO PRINCIPAL KEEPER OF PENITENTIARY.
No. 2i. In relation to pay of chaplain for convict camps. 28. Commutation of time of penitentiary convicts.

27

(1)

NOVEMBER 13, 1891.

His Excellency W. J. Northen, Governor:

Sm-I note your request for an opinion as to the meaning of the

terms "office" and "appointment," as used in the Constitution, in ref-

erence to the eligibility of Senators and Representatives, after their

qualification.

In making a reply, I find I may better present my views of the

distinctions to be drawn, by using as an example some particular ap-

pointment or employment, authorized by a statute, and for the pur-

pose of illustration, will refer to a resolutiorr now pending in the

General Assembly to raise a Commission to codify the penal laws of

this State.

.

This resolution shows that by its terms, the Governor is authorized

and directed to employ three competent attorneys, who shall consti

tute a Commission.

The power and duty of this Commission shall be to revise, codify

and fully annotate all the crimina! laws of ths State, with reference

to decisions of the Federal and State Supreme Court and other sec-

tions (of our Code) bearing upon the same.

"To have their report" of the revision, codification and annotation

of the criminal laws of Georgia" transmitted to the next General As-

sembly for approval and adoption. The resolution further provides

that the compensation of each of said Commissioll shall not exceed

the sum of fifteen hnndred dollars.

The Commission may employ a stenographer and typewriter whose

compensation shall not exceed three hundred dollars.

Article 3, sec. 4, par. 7 (2d part) of the Constitution declares

.: Nor shall any Senator or Representative, after his qualification as

such, be elected by the Gener.c~l Assembl}, or appointed by the Gov-

ernor, either with or without the advice and consent of the Senate, to

any office or appointment having any emolument annexed thereto

during the term for which he shall have been elected."

Assuming the rule in general to favor the eligibility of citizens to

office or appointment, then unless the provisions of the Constitution

cited, fairly and reasonably interpreted, interposes a bar, a member

of the General Assembly wnuld be eligible.

It will be ob~erved, that in the selection of this Commission, the

Governor is authorized and directed to employ three attorneys. To

ascertain the meaning and effect of the term employ, reference must

be had to the nature of the duties to be performed, duration, com-

pensation, etc. 'fo employ, is to use as an agent, servant, represen-

tative, to commission (Webster). In the ordinary sense of the term

employment carries with it the idea of a contract, an agreement as to.

28
what services shall be rendered tothe employer and what compensation shall be paid to the employee, but here no such meaning can be attached to the term employ, for the reason that the resolution prescribes the duties, regulates the term, and fixes the compensation, and the person employed by the Governor under the resolution has his rights fixed by authority of the General Assembly. After the employment or designation of one of these persons by the Governor such designation could not be revoked or changed by the Executive, and the word employ in the resolution must be given a wider and broader meaning.
An office is an "employment," S'lid Chief Justice Marshall (2d. Brock, 90) and following the definition of Webster, "to use as an agent," "servant," "representative," "to commission," tor public<futies, under authority of law, is but to fix an employment, which includes all officers and ll appointments. The term employ as used in the resolution, in my view, is not in any manner to be confounded with a contract. While "an office is an employment, it does not follow that every employment is an office." U. S. ts. Maurice, 2d Brock. 96.
Unquestionably under the laws of Georgia, the Governor may make employment under a contract for the performance of a specific duty; indeed the preservation of the State's property, securing its dues, maintenance of its legal rights, would seem to require in many instances, such action on the part of the Executive.
Section 74 of the Code expressly confers power on the Governor to en_gage the services of any competent person for the discharge of any duty required by the laws, and essentially to the interest of the State or necessary in any emergency to preserve the property or funds of the State.
So in a suit, in the result of which the State has an interest the Governor shall in his discretion provide for the defense of such suit, unless otherwise especially provided for, Code, e22, but such em ployment by no means constitutes the persons contracted with pub lie officers; the employment in these and similar cases is in the discretion of the Executive, the duty a specific and transitory one, and is precribed by him, the compensation a matter of agreement. The terms agreed upon define the rights and obligations of both, from which neither may depart without consent from the other, 6th Wall, 335.
A public office i5 never conferred by contract, but finds its source and limitations in some act or expression of the governmental power .
. . Hall VH. Wisconsin, 103 U. S. :_-2d Brock, 6th. Wall (before cited), 70 N.C. 93, 36 Miss. 273, --N. Y. 238, 31 Ky. 67. It would seem to follow then, that these employments resting in the found discretion of the Executive, for a specific work, on such terms as may be mutually agreed, with no duties, term or compensation
~-.~--

29

fixed by law, are not public offices, and not being offices in the mean-

ing of the Constitution t.he Executive is unrestricted in his selection

of the person. It would be entirely competent to contract with an

alien for the performance of such duties, notwithstanding an alien

can hold no public office, and on the other hand, it would be also en

tirely legal for the Executive to designate and contract with a mem-

ber of either House of the General Assembly for the discharge of

duties of this class.

Admitting then, that in a certain class of employments, such as

those to which I haYe last referred, members ot the General Assem-

bly are entirely eligible, it remains to be ascertained whether the

resolution creates such an office or appointment as is contemplated

by the Constitution.

The term "appoint" as used, is generally construed to be synony-

mous with "office"; it is, howev2r, not always so, 17 Rerg & Raw1s,

p. 219.

The term "place of trust or profit" is frequently used to designate

positions which approximate to but are not strictly offices, and yet

occupy the same general level in di![nity and importance

Mecham's Public Officers and Offices, par. 17, and authorities cited.

The words used in the Constitution are .

"or appointed

by the Governor, either with or without the consent of the Senate

to any office or appointment having any emolument annexe9-

thereto." While the term "appointed" may fairly be construed to

have a broader signification than "office," for the purpose of this

opinion I will consider them. as synonymous terms.

The general definition of an office is

"a right to exercise a

public or private employment and to take the fees or emoluments

thereto belonging (Black, Com. 2, 36).

Office is an employment on behalf of the Government in any sta-

tion of public trust, not merely transient, occasional or incidental,

20th Johns, 493.

Any man is a public officer, who hath any duty concerning the pub-

lic, and he is not the less a public officer where his authority is con-

fined to narrow limits, for it is the duty of his office and the nature

of that duty which makes him an otli.cer, and not the extent of his

authority, Mecham's Public Officers, p. 7, and authorities cited, 8th

Amer. R. 488.

An office is a public charge or employment and every office is con-

sidered public the duties of which concern the public, 7th Howard

Pee. R., p. 248.

Whether we look int'l the dictionary of our language, the terms of

politics, or the diction of common life, we find that whoever has a

public charge or employment or even a particular employment af-

fecting the public, is said to hold or be in office, 83 N. Y. 376.

30

The legal meaning of the term office implies a charge or trust con-

ferred by public authority and for public purposes, 7 Porter (Ala.)

371.

These definitions serve to show that the meaning of the term "pub-

1ic office" is fully met, where the duties are of a public nature, where

the charge, trust or employment is conferred by a public law, and

where the employment is not merely incidental or transient.

The Supreme Court of the United States (6th Wallace, 385-393\

aptly defines the term office in the following language .

"An office is a public station or employment, conferred by the ap-

pointment of Government; the term embraces the ideas of tenure,

duration, emolument and duties."

Testing the employment provided in the resolution to ~scertain

which of these elements attach, we find:

1st. That the duties prescribed are of a public nature; they are to

codify and revise the public laws, laws by which every person in the

State must be governed.

2d. A salary is attached, "not exceeding fifteen hundred dollars,"

that is, fifteen hundred dollars.

3d. Duration is fixed; that is, the revision and codification must be

made and presented to the next General Assembly, which by law as-

sembles on the first Wednesday in November, 1892. On this subject

of duration as a criterion it has been ruled as follows: It can make

no difference whether there be but one act or series of acts to be done,

whether the office expires as soon as the one act is done, or is to be

held for years, or during good behavior, 8th Am. R. 488; 74 Penn.

St. 124 ; 8th Cal. 39.

4th. The employment is made under legislative act.

It would thus seem that a Commission created by the Legislature,

having public duties, salary, duration of term and employment all

prescribed and fixed by public law, constitutes a public office. The

aggregate of the three persons is a Commission, which necessarily

gives to each person constituting the Commission the title of Com-

missioner, and as would seem to be conclusive of the matter, our own

Supreme Court, in 33d Ga., p. 322, says:

"Where an indi-

vidual has been appointed or elected in a manner prescribed by law,

has a designation or title given him by law, and exercises functionH

concerning the public assigned to him by law, he must be regarded

as a public officer, it can make no difference whether he be commis-

sioned by the Executive or not.

Under the foregoing rules, a levee Commissioner in the State of

Mississippi bas been held to hold a public office (36 Miss. 273) ; so

of a Commissioner for the construction of a public highway in New

York (46 N. Y. 381) ; and also a Commissioner appointed by an Act

of the Legislature, to lay out and build a public road (7 Howard, p.

31

248,) and also Commissioners appointed to construct a public build-

ing (20th Wend. R. 595.

It is roy conclusion that a Commission to revise an<l codify the

lawA of this State or perform other duties with like character

istics under an act of the General Assembly, will be public officers,

and the constitutional provision prohibiting the appointment of a

member of the General Assembly to "any office or appointment hav-

ing any emolument annexed thereto, during the term for which he

shall have been elected" includes this class of offices, and that no

member of the General Assembly is eligible to appointment as one

of such a Commissi<m during the time for which he was elected.

Code of Georgia, 66-69.

Very respectfully,
w. A. LITTLE.

(2)
ATLANTA, GA., Sept. 29, 1891.
lfis Excellency, W. J. Northen:
Sm-You have requested me to furnish you an opinion on the legal points submitted in the argument on the question of your approval of an act to amend the charter of the city of Macon, and the several Acts amendatory thereof, so far as to authorize the Mayor and Council of the city of Macon to issue bonds to build waterworks and for other purposes, etc.
You are asked to veto this Act, on the grounds that being a local Act, the notice prescribed by the Constitution and the laws of this State was never made in a manner to authorize the introduction and passage of the bill; that the Act contained matter different from the caption, and that the Act refers to more than one subject matter.
In answer to the question whether the notice prescribed was given in a lawful manner and was sufficient in law, and how far the Executive is at liberty to judge of these matters, it would be well perhaps, to consider.
First: what are the powers of the Executive under our Constitution and laws in relation to the Acts passed by the General Assembly?
It has been insisted that you are a part of the legislative power of the State, and high authority has been cited to show the fact. Under my view of our law, if this is true at all, it is so, in a restricted and qualified sense.
By article 1, section 1, paragraph 23 of the Constitution is is provided that "the legislative, judicial and executive powers shall for'ver remain separate and distinct, and no person discharging the

32
duties of one shall, at the same time, exercise the functions of either of the others, except as herein provided."
By section 1, article 5, paragraph 16 of the Constitution, it is provided that the Governor shall have the revision of all bills passed by the General Assembly before the same shall become laws, etc. ; and by paragraph 17, same section," every vote, resolution or order shall bt presented to the Governor, and before it shall take effect be approved by him, or being disapproved, shall be repassed by two thirds of each house."
Under these provisions and rules clearly deducible therefrom, it is unquestionably true that the Governor is a. part of the law-making power; that in the exercise of the duties imposed his judgment, dis cretion and obligation to preserve, protect and defend the Constitution of this State are to be exercised in his approval or disapproval of Acts and measures passed by the General Assembly, and from the exercise of this discretion there is no appeal, and only a two-thirds vote of each house cat1 override his veto of any Act or Resolution. Further, as legitimately within the scope of his duties in this respect he has the right to exercise his own judgment and opinion as to whether the Act before him is beneficial or injurious to the people of this State; whether it is wise or unwise; whether the wants of the public (or a portion of the public in local measures) demand it; whether the Act is in accordance with or violative of the Constitution of the t-ltate, and in general the only restriction of his power in this regard is the supreme law and his discretion.
This power, however, applies and must be exercised in regard to measures which have been passed by the General Assembly and come to him for his approval or veto.
Prior to the Constitution of 1877 the enactment of general and local measures was governed in the legislature by the same rules ; the framers of that instrument, however, sought to restrict local legislation, and they incorporated the following provision to govern the introduction of local laws, in article 3, section 7 and paragraph 10: " No local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published in the loeality where the matter or thing to be affected may be situated, which notice shall be giyen ut least thirty days prior to the introduction of such bill into the General Assembly, and in the manner to be prescribed by law. The evidence of such notice having been published, shall be exhibited in the General Assembly before such Act shall be passed." To carry this clause into effect the General Assembly passed an Act, which was approved December 3d, 1878 (Acts 1878-9, page 176), by which it was provided "that the notice of an intention to apply for the passage of a local bill shall be given in the following manner: the title of the bill shall be published once in a newspaper,

33
etc., and posted at the door of the court-house, etc., thirty days before the introduction of the bill, etc." Section 2 of the same Act provides that the production of the newspaper containing the notice required with the certificate of the Ordinary, etc., shall be sujficient evidence that such notice has been given in accordance with the Constitution. So that, it is required by law, as follows:
That no local bill shall be passed unless the notice shall have been published. That evidence of such notice shall be given the General Assembly before the Act can be passed.
That the production of the newspaper and certificate of the Ordinary in the General Assembly shall be sufficient evidence that the constitutional requirements have been fulfilled.
It will be noticed that all this evidence and proof is a condition precedent to the passage of the bill; that it shall be given to the General Assembly. When so given, then the bill may be passed.
With all this the Executive has nothing to do. It is the General Assembly, on whom ~he duty is fixed to pas~ the bill and judge the proof.
Now the bill to amend the charter of the city of MacoN, etc., is a local bill, and the requirements before mentioned apply to it. It has passed the General Assembly. When presented to the Executive it is an Act; he is a~ked to veto it, because it is urged that no proper legal notice of the bill introduced was ever made. Is this a proper reason for a veto of the Act ?
vVhere is the proof of the notice? It does not and cannot accompany the Act in an official form. It was required to be made to the General Assembly before the bill could be allowed to pass. It has passed. There is no requirement that it shall be made to the Governor; on the contrary, it is for the legislature to decide. 85th Ga., p. 49. "Every department of government, and every official of every department, may, at any time when a duty is to be performed, be required to pass upon a question of constitutional construction. Sometimes the case will be such that the decision, when made, must, from the natures of things, he conclusive, and subject to no repeal or review, however erroneous.it may be in the opinion of other departments, or other officials, etc."
Cooley Constitutional Limitatirms side, p. 41. It ia not so here; the notice, must be made as prescribed; evidence of the fact is required by law to be made to the General Assembly before the bill shall pass. The bill has passed. vVhen it comes to the Executive it comes without any proof that must be made in the General Assembly. Is it his duty to revise :lnd:4eview the action of the General Assembly? I think not. But the Journal of the Honse is presented, and this journal contains the protest of one of the members. That protest sets out the notice first made of the bill to be introduced with other matters,

34

in a clear, succinct and forcible manner. A copy of the certificate

-of the Ordinary as to what the notice contains is also spread upon

the journal. While this may be, and is, a strong and forcible argu-

ment, protesting against the passage of the bill, and calling attention

of the house to the constitutional and business questions involved,

it is yet but a protest; it is the opinion and action of one member.

It is addressed to the house ; it is made in the bouse; it is not the

action of the houst>.

"Each house keeps a journal of its proceedings, which is a public

record. . . . . If it should appear from thebe journals that any Act

did not follow any requirements of the Constitution, or was not other-

wise constitutionally adopted, the courts may act on the evidence

and adjudge the statute "void." Cooley Cons. Lim., p. 163.

Tried by this journal as to what the house did, it appears, in refer-

nce to the bill under consideration, that the proper legal proofs

were submitted, and the bill passed by a constitutiomil majority.

Were they submitted, and were tht>y constitutional and satisfactory?

In my opinion neither the court, nor the Executive, nor any other

power of the Government can inquire into or review this action of

the General Assembly. They were required to have evidence of a

-certain fact before they acted. They refer to this evidence and act,

and it seems to me that this is the end of it.

In this connection I will say, that on the notice of the original bill,

as set out in the protest, it is my individual opinion that it did not

warrant the passage of the present bill with its present title. That

if I were to judge it would be my opinion that the requirement as to

110tice had not been sufficiently complied with to authorize the pas-

sage of the present bill, because the original title as set out in the

protest could not be legally enlarged to cover so many subjects not

(to me) contemplated in that title. But I am not to judge; it is

given to the General Assembly, and not to me, to judge and decide.

Having the power and the r;ght to judge and decide, they have done

so, and their judgment and wisdom in so deciding must and ought

to stand.

Another objection urged is that the Act contains more than one

subject matter, and matter different from the caption. Taking the

title of the Act, as presented for your action, after a careful exami-

nation of its provisions, I find nothing which cannot, in my judgment,

be considered harmonious and germane to the title, and the general

intention and scope of the Act.

In conclusion, I think this bill is for your consideration, just as

<>ther bills presented. If it contravenes public policy, if it is unwise

in its provisions, if its enactments are not in accord with constitu-

tional requirements, it is subject to veto and disapproval. as other

bills for same cause; but it is my judgment that the mode and man-

ner of its passage, as to previous notice, has been decided by the

General 4-ssembly, which decision cannot be reviewed.

Very respectfully,

WM. A. LITTLE.

35
(3)
ATLANTA, GA., September 7, 1891.
His Excellency, W. J. Northen:
Sm-I am in receipt of your request" to examine the Act of the General Assembly entitled, 'An Act to organize a county court in each of the counties of Calhoun, Baker, Quitman, Miller, etc.,' and advi':'e whether the provisions of that Act, as to the mode of appointment and term of office of county judge, has been changed by subsequent legislation, and particularly whether the appointment of county judge for Baker county should be for two or four years, and whether such appointment should be confirmed by the Senate."
I have carefully examined the Act referred to, and subsequent legislation with the following result:
It is provided in the Act of 1874 (p. 54) "That a colirt shall be established for the counties of Baker . ., the judge of which shall be appointed by the Governor," etc., for the term of two years. It was eompetent for the legislature to create this court at the time, and provide as they did for the appointment of the Judge by the Governor for a term of two years.
Has subsequent legislation changed or modified its terms? By reference to paragraph 1, section 9 of the Constitution of 1877, it will be found that "Uniformity in the jurisdiction, powers, proceedings and practice of all courts of the same class must be established by the General Assembly." It will be noted, however, that the uniformity required by the Constitution is expressly confined to jurisdiction, powers, proceedings and practice, and there is no uniformity required either in the manner of appointment or terms of office of. the judge. By the same instrument (Constitution of 18i7), in article 12, paragraph 4, it is provided that local and private Acts passed for counties, etc., not inconsistent with the Constitution, shall have the force of statute law, and as the Act of 1874 is not (as I construe it) repugnant to any clause of the Constitution, as to the term and manner of appointment of the judge, that Act is of force, unless subsequently repealed. I find in the Acts of 1878-9 an Act to establish in the county courts of this State that uniformity required by the Constitution first cited, Acts 1878-9, p. 132. That Act, by a recent decision of our Supreme Court, Lorentz vs. Rittler March term, 1891 (not yet reported), is not a a general law, because certain counties are expressly excepted from its Operation; but the court ruled in the same case, that its effect is "to establish uniformity as to jurisdiction, powers, proceedings, and practice of all county courts," so that the Act of 1874 is in effect an amendment, in that its jurisdiction, powers, proceedings and practice shall be as prescribed in that Act, thus making uniform the jurisd.ic.tion and proceedings of all county courts. But bearing in mind

36
that no such uniformity is required by the Constitution as to the appointment or terms of the judges, then the Act of 1879, if it changes any existing law as to these, is an expression simply of the legislative will, and not mandatory by a higher law as to the uniformity in practice, proceeding, etc. Does that Act, howE"ver, haYe the effect of changing the terms and appointment of any judge of a county court created by a local or special Act, either before or subsesequent to its passage? I think not.
The 16th section of the Act of 1879 provides that the judge" shall be appointed and hold office as now provided by law." At that time the Aet of 1874, creating a county court for Baker county, was in force as a law, and that law provided that the judge of that court should be appointed by the Governor for the term of two years, so that I find nCL repugnancy in the Act of 1879 to the Act of 1874, as to the manner of appointment and term of office of the judge of the county court of Baker county, and it is my opinion, under existing law, that the term of office of that officer is two years and he is to be appointed by the GoYernor without the necessity of confirmation by the ~enate.
I desire to add in conclusion that on December 11, 1884, AttorneyGeneral Anderson had under consideration the construction of the Act of 1879, and tendered an opinion to Governor McDaniel on the manner of the selection of the judge of the county court of Putnam county. I have adopted much of the reasoning of that opinion, and without difficulty haye reached the same construction of the Act.
Very respectfully, '\YM. A. LITTLE.
(4)
A1'LANTA, GA., September 8th, 18\Jl.
His E.rcellency, W. J. Northen:
Sm- In response to your inquiry as to the law of the extradition of a person charged with bastardy, I beg to say:
Provision is made by Eection 5278 of the Revised Statutes of the United States for the extradition of a person from one State to another, on the requisition of the Governor of the State where the person sought to be extradited is charged with a crime under the laws of that State.
He must, however, be lawfully charged with the commission of a crime under the laws of the State to which he is sought to be returned.

37
Being the father of a bastard child is not of itself an offence against the laws of this State; but being adjudged to be the father and refusing to give the prescribed bond for the maintenance and education of the bastard child, subjects him to indictment and conviction as for a misdemeanor. Code of Gp,orgia, 4564.
Where, therefore, a warrant charging a person with being the father Df a bastard child is issued, such warrant contains no charge of the violation of any law of this State, but is in this class of cases only a preliminary proceeding.
After the defendant has been arrested and brought before the justice, and adjudged to be the father and that he give a bond, and on failure to do so, is committed or bound over to appear for trial, the offence is completely charged, or if he is indicted in either of these events, a requisition in my judgment can bp, legally made, but not so on a warrant simply charging him with being the father of a bastard child likely to become chargeable to the county.
Very respectfully, WM. A. LITTLE.
(5)
ATLA;>~TA, GA., September 17th, 1891.
His Excellency, W. J. Northen:
Sm-I am requested to give an opinion in answer to the following question:
Whether the funds of the State other than the collections made by the several tax-collp,ctors, can under existing law, be placed with the several State depositories created by the Act of 1879.
In order to correctly determine, it is, I think, necessary to ascertain the law as it existed prior to October 16th, 1879, and then see what changes are made by that Act as to the care and custody of the public funds.
Section 94, paragraph 4 of the Code of Georgia, which was codified from the Act of 18iG, declares: "The Treasurer shall keep accounts in the books of his office with the different banks in which the public revenue or money is deposited, on which ualance shall be struck at the aforesaid periods, showing the amount in the bank to the credit or deuit of the State ; but the deposits of the public revenue or money shall be made only in such banks as the Treasurer may select, with the approval of the Governor, and the written ap proval of the Governor designating the depository of the public

38
funds shall be entered of record in the Executive office. The bank or banks where public deposits are made by the Treasurer shall transmit to the Comptroller-General and Treasurer monthly statements of deposits, checks and drafts received and paid by them on account of the Treasury."
The Act of 1876 (from which this paragraph is codified) is entititled, 'An Act to amend the laws of this State for the protection of the State Treasury, to define the obligations pertaining to the office of Treasurer and to prescribe his duties''. And section 12 of the Act from which the paragraph above recited is taken enacts "That it is the duty of the State Treasurer" to do as prescribed in said paragraph 4.
Under this section of the Code and Act of the Legislature the State Treasurer )llay select a bank where public deposits may be m.ade by him, and when this selection is approved by the Governor in the manner prescribed, then the State Treasurer may make deposits of the public money, keeping account, etc., and requiring reports, etc.
The Act approved October 16th, 1879, from which sections 943 (a) to 943 (9) are codified, is entitled "An Act to establish State Depositories in the city of Atlanta," etc., and prescribes their duties and liabilities.
These depositories are to be appointed by the Governor, for the term of four years; at the time of appointing he. shall make a list of certain counties where tax-collectors shall be instructed to pay ~tate funds into each depository, and they shall pay into no other depository; he shall make a proclamation giving the name of the depository and the counties whose tax-collector~ shall pay into that depository the moneys collected from taxes; each depository shall give a bond, etc., conditioned for a faithful account of all public money that may come into their hands. That tax-collectors may pay directly to State Treasurer, but State Treasurer cannot deposit such funds received in any other bank than the State depositories created under this Act.
The Act of 1876' provided that th,.. State Treasurer should select a bank in which the public funds might be deposited, subject to the approval of the Governor.
The Act of 1879 provided for the creation of State depositories to be selected by the Governor and that moneys collected from taxes might be paid direct into the depositories and that taxes might also be paid.direct into the State treasury, but prohibited the Treasurer from depositing the moneys so received in any bank or depository other than those selected hy ~he Governor.
My construction of the Act of 1879 is that it changed the manner of th3 selection of depositories, requiring different reports and that they hould give bond ; that it repealed the right of the Treasurer to-

39

select a depository and required him to make deposits only in such

depositories as are selected by the Governor and who qualify under

the Act, but does not alter or affect the right or power to make-

deposits oi any public money in said State depositories.

While I think this interpretation is plain from the two Acts con-

strued together, I a'll further confirmed in my opinion by reference

to the condition of the bond of the depository, which is for "a faith-

ful account of all the public money or effects that may come into

their hands."

In Mathis, Shff., vs. Morgan, 72 Georgia, p. 526, the point was ex-

pressly ruled, "anything received by it from the State within the

meaning of public money or effects, is included in this obligation,"

and this ruling was made on the point presented that the surety on

the bond was only liable for such money as w,as paid into the deposi-

tories by the tax collectors.

And I conclude that public moneys other than taxes may by the

Treasurer be deposited in any State depository under the Acts of

1876 and 1879.

Very respectfully,
wM. A. LITTLE.

(6)
AnANTA, GA., September 20th, 1891.
Hon. W..T. Northen, Governor:
Sm-I am in receipt of your request to eonstrue the Act to provide for receiving, apportioning and disbursing the "Common Rchool fund," etc., passed at the recent sessiOn of the General Assembly and now presented for your action and to call attention to any legal difficulties which may exist as to the execution of the proYiLions of the Aet.
A cursory examination of this Act made a day or two since brought me to the conclusion that serious difficulties existed in the execution of i~s provisions. A very careful examination and comparison of the Act with the law now existing on the same subject, has to a certain extent only modified the c mclusion reached at that time, and I herewith present in detail the more important changes made by this Act with suggestions of the difficulties I find in its proper execution.
Section 1 pruvi<les that "the entire common school fund whatever source derived, including poll tax, shall bepaid into the State Treasury and held as a special deposit for school purposes only, and the

40
Treasurer shall not pay out said fund except on the warrant of the State School Commissioner."
If this Act becomes a law, its proyisions go into effect immediately and the entire fund raised and set aside for school purposes must be paid into the State Treasury, including the fund of this year cul lected after the date of its approval.
"It shall not be paid out," r!lcites the Act, "except on the warrant of the State School Commissioner."
This is the only authority iu the Act for the State School Commissioner to draw his warrant on the Treasurer; there is none in the General law, none in the Act of 1887, which consolidates the school laws of the State. I do not find muc:h difficulty in the clear light of the legislative intent, manifested by the caption which provides for the "disbursing the common school fund," and the positive requirement, "the Treasurer shall not pay out said fund except on the warrant of the State School Commissioner," in concluding that the words quoted, while negative in character, authorizes the Treasurer to pay on such warrants and the Commissioner to draw them, otherwise there could be no disbursement whatever of the fund.
The Act (or that part to be now in force if approved) is siient as to the basis of this disbursement and in order to give effect to the power to disburse, we have to look elsewhere for a basis or appor tionment on which such disbursement shall be made. If we refer to section 2 of the Act under consideration, and could now give force to that seetion, all the diffieulties encountered would be removed.
It is therein provided that the School Commi~sioner on January 1st in each year shall send an estimate of the amount to which each county will be entitled for that yllar to the Treasurer, and quarterly on certain days, the Treasurer shall credit on his books, to each county its pro rata share, and that on the order of the County Board of Education the Commissioner shall draw his warrant in favor of each county as any part shall be needed; bnt in express words, it is enacted that this section shall not go into effect until January 1st, J8\J3, and we can consider no part of these <iirections now, therefore reference must be had to existing law to ascertain on what basis or apportionment the school fund shall be drawn.
Section 8 of the Act approved October 27th, 1887, provides that the State Com1nissioner shall annually apportion equitably the State school revenue to the different counties on the basis of the aggregate of children between six and eighteen years; this provision of law is in force, the apportionment had been made when the Act was passed, and it is to be presumed that the fund was intended to be disbursed on this basis. It will be remembered, however, that under existing laws, the poll-tax which, for the year of 1891, is estimated to be $200,000, forms no part of the fund apportioned.

41
Section 44, Act 1887, declares that all poll-tax collected in thig. State shall be paid over to the several County School Commissioner11 and paid out without any deduction to the support of the common, schools in the respective counties where said poll-tax was raised.
By this Act this method of the distribution of this fund is changed' and the poll-tax of each county will go into the general school fund.
But by section 42 of the Act of 1887 it is required that the apportionment, which is directed by section 8 of the Act to be made annually, shnJl be made by the first of July or as soon thereafter as practicable. This apportionment has long since been made, and the various tax collectors have been notified of the amounts apportioned to the counties respectively, but in as much as the poll-tax did not enter into this apportionment, because it was otherwise paid out, it must under this Act be also apportioned as it is a part of the general school fund. U ncler section 42 as above referred to, it will be July 1st, 1892, before the regular apportionm0nt will again be had; the consequence will be that the poll-tax for 1891, which is intended as a part of the school fund for that year, will not be available, but under this Act, will remain in the Treasury unapportioned until July 1st, 1892, when being apart of the general school fund, it will, with the poll-tax of 1892, be apportioned to the support of the schools for the latter year, thus depriving the fund of 1801 of about $200,000, and increasing the fund of 1802 by approximately this amount.
Attention is called to the furt herfact, that under existing laws the first taxes collected in each county shall be paid into the school fund of that county by an order from the Commissionar to the taxcollector, until the pro rata share of that county has been fully paid.
Under this Act, the fund goes direct to the treasury and may as I construe the first section be paid from time to time on the order of the Commissioner.
The 3d section of this Act provides that the school term shall be for such a length of time as the school fund will warrant, to be fixed by the State Board of Education, hut the County Board shall designate the months during which thP schools shall be taught and whether the term shall be contin:uons or divided.
The 4th ~ection provides per diem pay to the members of the County Boarcl of ~12 for not more than ten days in one year to bepaid out of the school fund of the county, instead of the former exemption from jury and road duty.
I have as above endeavored to comply with your request ; the execution of the terms of the Art is not to be had without trouble and confusion, owing to the approach of the close of the year and the necessary previous arrangements and details made to meet existing laws. 'l'he construction given to some parts of the Act is very liberal,
4

42
and perhaps would not be warranted except for the expressed intent of the General Assembly. The :.reneral school fund for this year, aside from "the poll-tax, is $935,611.09, and with the estimated polltax is $1,135,611.09.
If the eonstruction I have given to the power of disbursing and approving this large sum under the 1st section of this Act should seem to be too liberal, I would add that this Act in no way affects the amount raised for the common schools, but only its disbursements, and should for any reason this Act fail to receive the approval of your Excellency, the schools will be held and, carriPd on under existing laws.
1 am very respectfully, \YM. J .. LITTLE.
(7) Xonmm:n 1+, 1891.
His Excellenc!t, 11'. J. 1\Torthen, CTotemor:
Sm-I am to-day in receipt of your reque~t to furnish an opinion on the question raised in a lE>tter from Mr. )fE>ldrim, as to the right of the local board of trustees of the school for colored persons, to make paymE>nt to the Chancellor of the University for his ;;ervices under thE' Act approved November 26th, limO, to e~tablish a school for colored persons as a branch of the Hate Univerf'ity.
This Act provides for the appointment oi a Commission of the school for c-olored students. , The Commission is Yef'ted with full power and autlwrity to establish a ~chool for the educ-ation of colored youths, to procure necessary buildings, grounds, apparatus and appurtenanc-es: it is provided that, when establi~he<l, this s<hool shHll be a part of the University of Georgia, that when said St'Lool is turne<l over to the Board of Trustees of the rninr,-ity. the perwns appointel on said Commission become a loeal boanl of trustees for said school, charged with the control, Hupervision and manag,E'ment of the same, subject to the CTeneral Board of Trustee,-.
Sect'on 7 oi the Act refernd tu pnseribt's that the otlice!s of t!.e school sball he a president and such other pn iessur>', teachers anti instructord as may be necessary to earry on the ~ehool. It is further provided that the Chanc,llor of the University shall have the gE>n era! supervbion of said school.
The only provision made for tixing and payment of ~alnries is that for the officers of said school. and the otlicer" are such as are lesignated in thE' 7th ~ection: "a pref'ident and ~uch other professors teachers an l instructors as is necessary to earry on the school. ..

43

The Chancellor is not included in this list, but by reference to sec-

tion 1196 of the Code, it will be seen that he is elected and his salary

fixed by the Board of Trustees of the University. The Act makes

this school a part of the UniverEity, and his supervision would by

implication extend to it, were it not so expressly stated.

While the interpretation I make of this Act is that the local board

of trustees have no power to make additional compensation to the

Chancellor, it is competent I think for the Board of Trustees of the

U niver~ity after taking into consideration the duties of the Ch

cellor as enlarged by this Act, to make such increase of salary as

their judgment may be proper.

And if, since the salary of the Chancellor was fixed, additional du-

ties have been imposed on him (not contemplated at the time), the

board could, if it saw fit, increase the salary to such an amount, or by

such an amount, as would be full compensation for the supervision

required, and the annual appropriation to carry on this school being

made to Trustees of the University for the purpose of carrying out

this Act (a part of which contemplates the additional duties by the

Chancellor of supervising it), such increased amount could, 1 think,

be properly paid from that fund.

I am, very respectfully,

w~r. A. LITTLE,

(8)

ATLANTA, GA., November 20, 1890.

His EJ:cellency, TF .T. Xorthen, Governor:

SIR-I am in receipt of your request for an opinion as to what force

and effect should be given to an Act approved October 1-, 1891, en-

titled an Act to amend section 1103 (J) of the Code of Georgia, so as

to fix the number of aids-de-camp.

.



The con~titutional requirements as to amendments are as follows:

"No law or section of the Code shall be amended or repealed by

mere referen<:'e to its title, or to the number of thfl section of the

Code, but the amending or repealing Act shall distinctly de~cribe the

law to be amended or repealed, as well as the alteration to be made."

Article B, section 7, paragragh 17, Constitution of Georgia.

The principle, however, is laid down by Judge Cooley in his Consti-

tutional Limitations, page 15::! (side), that the letter and spirit of this

provision is. complied with, if the section amended is set forth as

amended, and by adjudications of many different courts it would

seem to be the rule.

44
The Act in qu stion did not seek t() repeal or reyise the entire section as found in the published edition of the Code, but ~ought to changP the last three lines, and after making the desired change in those three lines, then Eet ont the entire section there found "ith the changes as made; this w,mld comply with the constitutional reqnirem... nts were it not for one fact. This section 1103 (J) of the Code, as it appears in the edition of 1882, was itsplf repealed and an entirPI v diff.-rent and new section made by the Act appr..ved October 13, 1885, :nd in fact, at the time this Act wa<; passed, there was no snctt law as that attPmpted to be anunded. It still remained in the edition of 1882, because the repeal of the section was made mbseqn... nt to that time; the legis atnre overlooked the fact that it had b n repe led.
I do not set out the sPction wHch was suhstitnted by the APt of 1885 on aceount of its length; it is made however a very compr<--hensive s ction; it provides for the offices of Adjutant ar,d InspectorGener I, Jndge Advoc.tte, Qnarterm ster-General, at least four Aidsde-Camp attd defines the duttes of these officers.
There are O such words in this substituted section as are propose<!
to be anwn led hy this Act. It was not inended or attempted to repeal the substituted section,
its exi tence must have been entirely forgotten. Ina~mnch tlwrefore, ~s this Act was amendatory of a section of the Code which had been repe"led, as it prOfOsed to strike out, add to and change certain words w11tch are not in the section as it ...xists, and as the amending Act d l'S 110t distinctly describe the law amended, nor the aiferation to be Iliad<', nor set out the section as amended, and as it could not be amended in the manner set out in the Act, because tlte VI ords set out in the ~e!'tion o be stri<-ken and changed, are not found there, I think it obnoxious to the 1art uf the Constitution first ncited, and is of no f .rce or effect.
Very respectfull_v, wM. A. LITnE.
ATLANTA, GA., November 21, 1891.
His Excellency, W. J. Northen, Governor: SIR- I min receipt of your request to give an opinion as to what
is the proper u~truction to be placed on the first section of an Act approv. d lkrul.Jer 17, 1C91, entitled an Act to regu,ate the appoint-

45
ment and term of office and removal of physician of the Lunatic Asylum.
The first means in the construction of a statute is to ascertain what is to be accomplished by it. The part of the statute necessary to be construed as I understand it is as follows:
"Sec. 1. The Board of Trustees shall select three competent physicians, one of whom shall be a member and Chairman o( the Board of Trust~es."
The Chairman of the Board of Trustees is not a physician, and while there is no legal reason why a physici1m might not be Chairman, there is no legal requirt>ment that the Chairman shall be a physician, and in fact he may never be.
One of the requirements of existing law, however, is that one member of the Board of Trustees shall be a competent physician.
In looking to the Act to ascertain the object and intention of the legislature, we find the declared purpose in the title is to regulate tlw appointment of a physician at the Asylum. The method of regulating this appointment, is by examination, written examination before the Commission. (f'ec. 1.) This Commission shall be com posed of three competent physi~ians, selected by the Board of Trustees, then follows the words to be construed, "one of whom shall be a member and Chairman of the Board of Trustees."
This being impo~sible of literal execution and the object and intention of the legislature being ascertained by reference to the title and other parts of the Aet, we are to give these \Vords such a construction as will let them stand in harmony with such objects and intention.
The rule as laid down in Sutherland on Statutory Construction and supported by numerous authorities there cited is:
"~When the subject matter is once clearly ascertained, and its general intent, a key is found to all its intricacies. 'Vhen the intention can be collected, words may be modified, altered or supplied so as to obviate a::ty inconsistency with such intention." Having thus ascertained the subject of this Act, the object and intention of the legislature, the fact that under the law, one member of the Board of Trustees must be a physician, we apply the foregoing rule, and transpose the two words "and Chairman," so as to come in after the word "trustees" in the same sentence, then this proviso, which is an important part of this Act, will read: "Provided, that hereafter the Board of Trustees shall select three competent physicians, one of whom shall be a member of the Board of Trustees and Chairman." The subjPct of the Act, the object and intention of the legislature are in no way changed, while the Act can be literally executed with this transposition of two words. Such is the meaning of the Act as I understand it.

46

It will be found in several places in the Act, that the word "board"

is indiscriminately used. when it is remembered that two boards

are constantly referred to, "the Board of Trustees" and "the lloard

of Physicians," it will be easy, I apprehend, to ascertain by the lan-

guage used, which board is intended.

\'ery respectfully,

"\Y1r, A. LITTLE.

(10)
ATLAXTA, G.L, January 25th, 1892
His Excellency, TV. .J. Northen, Governor:
Sm-You inquire of me whether, in the disbursement of the direct tax undPr the Act, approved October 21, 1891, payment can be made to tht> heirs of the person paying the tax, or only to himself, or his legal representatives. In reply,- I hPg to-say that the-Act of.Congress "To credit to each of the several states the money collected under the Direct Tax Act," approved March 2d, 18Dl, provides, among other things, that such money shall be held in trust by such state for the benefit of those persons or inhabitants from whom it was col. lected, or their legal representatives. Section 2 of the Aet, approverl October 21, 1891, under which this money is to be refundec1 by you provides that the:warrant shall be drawn in favor of the person from whom said tax was collected; or, if such person be dead, it shall then be drawn in favor of a duly qualified legal representative of such person.
A legal representative, is "a person who in the law represents the person and controls the rights of another; the phrase is commonly used as an equivalent of executor and administrator." Black's Law Dictionary, title, "Legal Representative." This distinction between heirs and legal representatives is also recognizc>d by our Code. See section 2441.
A brief reference to the Journals of the House and the Senate discloses the following facts: The House of Representatives passed the bill as it now appears in the volume of Acts of 1891, page 239. It was transmitted to the Senate; and, on October 12, came up in that body, when it was amended by inserting after the words ''legal representatives " the words " or heir or heirs, if there be no legal representative." See Journal of the Senate 1891, page 751. As amended, the-bill was returned to the House, and came up before that body on October 15, for action on the Senate amendment, and the House re-

47

fused to concur in the Senate amendment, Honse Journal1891, page

1379. The Senate insisted on its amendment; the House insisted on

its refusal to concur in the Senate amendment and requested a Com-

mittee of Conference; Senate Journal, page 808. The Senate agreed

to the request of the House for the Conference Committee, and one

was appointe<l. The committee, after consideration, reported in favor

of the f-lenate receding from its amendment. This report was

adopted by the Senate (Henate Journal, page 808); it wm; so reported

to the House (Hom;e .Journal, page 1403). It will be seen by these

referemcs that the attention of the General Assembly was directly

called to the omission in the Act which authorizes payments to heirs;

and after full conference, both lwdics agreed not to insert the word

"heirs" in the bill.

The original Act of Congress provides, in case of deceased persons,

that payment should only be made to their legal representatives.

The Act of the General Assembly oi Georgia not only adopts the same

language, but refu~es to allow payments to be made to heirs. It is,

therefore, my opinion that, under thP Ad of the General Asscmbly,

payments can only be made, first, to the person from whom the tax

is collected; second, if such person be dead, then to his executor or

administrator.

Respectfully suumitted,

\\')I. ~l. LITTLE.

(11)
Ilon. W . .J. _vorthen, Govemot, Atlanta, Ga.:
Sm-Sometime since I received your request to examine the amendments proposed by the last General Assembly, to the Constitution of the State, as found in t:..e Acts of 1890 and '91, pages 55, ;)G, 57, 58, 59 and GO, and to indicate to you the changes which those amendments would make in the organic law if ratified; and inasmuch as questions have been raised through the public press, and in other ways, in regard to defects existing in said ::nuendments, to point ont the same, and furnish an opinion whether any reasons exist which would prevent the submission of said amendments for ratification by the people, in accordance with the direction of the Legislature, and the terms of the Constitution of the State.
In reply, I would say, that I have examined the four amendments referred to at your request with the following result:
Article 3, section i, paragraph 7 of the Constitution is as follows: "Every bill, before it shall pass, shall 'be read three times and on

48
three separate days in each bouse, unless in case of actual invasion or in~urrection." The first amendment proposed, page 57, Acts of 90 and '91, is to this paragraph. The General Assembly submits a proposition to amend, by adding to the paragraph the following words: "But the first and second readings of each local bill and bank and railroad charters in each house, shall consist of the reading of the title only, unless said bill is ordered to be engrossed." If this paragraph should be amended the effect will be, that each local bill, and bill to incorporate banks ~nd railroad companies, will be read by title only, on the first and second readings of the same, unless such bill is ordered to he engrossed, which is very rarely the case. The parliamentary rule being, that engrossed bills are not subject to amendment. This proposed amendment was agreed to by two-thirds vote of each house of the General Assembly, as shown by the aye and nay yote; and I know of no reason why it does not comply with the constitutional requirements, and is ready for submission to the people. By section 2<1 of the Act in which this amendment is proposed, it is provided that the Governor shall cause said amendment to be published in at least one newspaper in each congressional district in this State, for two months preceding the time of the holdingof the next general election, in I)Jder that the question of ratification of this ainendment may be submitted. The form of ballot, as pre-
scribed in section :l, is as follows: "For ratification of the amend-
ment of paragraph 7 of section 7 of article 3 of the Constitution"; and, "Against the ratification of the amendment of paragraph 7 of section 7 of article ::l of the Constitution."
The next amendment proposed in perio<l of time, is to alter and amend paragraph lS, section 7, article 3 of the Constitution, which reads as follows: "The General Assembly shall haye no power to grant corpprate powers and privileges to pri\ate companies, except, banking, insurance, railroad, canal, navigation, express and telegraph companies; nor to make or change election precincts; nor to establi~h bridges or ferries; nor to change names of legitimate children. But it shall presrribe by law the manner in which such powers shall he exercised by the courts." The amendment proposed strikes from said section, after the word "eompanies," the following: "Except banking, inFurance, railroad, canal, navigation, express and telegraph companies" ; and adds the following at the end of the paragraph : "All corporate powers and privileges to banking, insunince, railroad, canal, navigation, express and telegraph companies shall be issued and granted by the Secretary of the State in such manner as shall be prescribed by law." So that, when amended, the paragraph will read as follows: "Tbe General Assembly shall have no power to grant corporate powers and privileges to private companies, to make or change election precincts, nor to establish bridges or ferries, nor to change names of legitimate children; but it shall prescribe by law,

49
the mann3r in which such powers shall be exercised by the courts. All corporate powers and privileges to banking, railroad, insurance, canal, navigation, express and telegraph companie!! shall be isBued and granted by the Secretary of State, in such manner as shall be prescribed by law; and if in any event the Secretary of State should be disqualified to act in any case, then, and in that event, the Legislature shall provide by general laws, by what person such charters shall be granted." The effect of this amendment, if adopted, will be to take away from the General Assembly the power to incorporate the companies referred to in the amendment, and to authorize the Legislature to prpscribe by general Jaws the powers and privileges to be exercised by such companies, which shall only be incorporated through a charter granted by the Secretary of State; and in ,case 0f his disqualification, by such other person as the Legis'ature by law shall prescribe.
It will be noted that an irregularity occurs in the language used in this proposed amendment, the amendment proposed being to strike out certain named words and insert certain other named words, so that when done the section should read as heretofore set out. But when the words proposed to be stricken are stricken, and the words proposed to be inserted are inserted, then the section will not read as set out, because a subseque11t addition bas heen made to the words proposed to be inserted by the first section of the Act. However, from the dew which I take of the necessary requirements in proposed amendments to the Constitution, the reasons for which are fully given hereafter, I deem this inaccuracy immaterial. By refer -ence to Senate Journal, page 111, it will be found that this amendment, being in the shape of a bill, was taken up, agreed to, and the hill passed by the requisite two-thirds Yote of that body, and the ayes and nays entered upon the journal. It will be noted, however, that this bill, which contained the proposed amendment, was not then entered upon the Senate .Journal. Reference to it is had as the bill of the Senate to alter and amend article 3, sedion 7, paragraph 18 of the Consitution, etc. By reference to the House .Journal, pages 721 and 722, it will be fouwl that the bill which contained this amendment was taken up and agreed to by the necessary two-thirds Yote of that body, and the ayes and nays entered upon the journal. It will also be noted that the amendment proposed is set ont on page 721.
While it is true that this proposed amendment does not appear on the Journal of the Senate when it was agreed to, and the Constitution prescribes that it shall be entered thereon, yet, for reasons given hereafter, I am not prepared to say that this is such a material defect as would invalidate the proposition. It appears on that journal tBat the proposed amendment was in the form of a bill to amend the particular paragraph of the Constitution which we are now considering,

50
and that bill passed by the reqnisite vote is entered, and we have the original bill corresponding in number and in subject matter to the reference made 'fn the journal, which, in my opinion, is a sufficient identification of the matter of the proposed amendment. By seetion 2 of that Act it is made the duty of the Governor to cause the amendment to bfl published in one or more newspapers in each congressional district for two months before the next general election, and the form of the ballot on this amendment is prescribed by the Act: "For ratification of amendment to article :3, section 7 of paragraph 18" ; or, "Against ratification of amendment to article :3, section 7 of paragraph 18."
The next amendment proposed is to alter and amend article 2, section 4, paragraph :3 of the Constitution of 1877, by ~triking out the word "biennially," and inserting the word "annually." There is no such paragraph in the Constitution of this State.
Section 4 of article 2 contains but two paragraphs, and consequently an error has been made. By reference to the original, the engrossed and the enrolled bill, containing this propose<I amendment, I find that the same error exists in all. But by reference to tile fir~t section of the Act, whieh contains this proposed amendment, I find that-it proposes to strike-out the word "biennially" anrl insert the word "annually;" and then declares when amended, the first clausE> of that paragraph should read as follows: "The first meeting of the General A;semhly, after the ratification of this Constitution, ;;hall be on the fourth \Yednesday in October, 18i8, and annually thereafte1 on the Eame day, until it ~hall be changed by law." As before said, there is no paragraph :3 tCJ section 4, article 2 of the Constitution, lOnsequently no word which could be stricken or added. By reference to article :3, section 4, paragraph 3, I find the clause which regulates the meeting of the General Assembly in the following language: ''The first meeting of the General Assembly, after the ratification of tbis Constitution, ~hall be on the first 'Vednesday in Kovember, 1878, and biennially thereafter on the same day, until the day shall be changed by law." Evidently this was the clause and paragraph which the General ~\ssembly proposed to amen(l, and by an errorartide 2 was substituted for article 3; and the question now ar:ses whrther this error is fata 1 to the yalidity of the propo~ition. (See 22 Ga. R. 203.)
The Constitution itself provides the only methods by which that instrument may be amended, and these are two: 1st. By convention of the people. 2d. An amendment may be proposed in the s~nate or Honse; if the same shall be agreed to by two-thirds of the members elected to eaeh of the two house~, such proposed amendment shall be entered on their journal, with the ayes and nays taken thereon. The General Assembly shall cause amendments to be pub-

51
Iished in one or more newspapers in each congres,ional district for two months previous to the time of holding the next general elec tion, and provide for submission of Fuch proposed amendments at such election. If ratified by a majority of the electors then voting; the same shall become a part of the Constitution. When more than one amendment is submitted at the same time, they shall be so submitted BS to enable electors to vote on each amendment separately.
It is not necessary under these terms of the Constitution that ttte amendment shall be in any particular form. It is not nece~sary that it shall be by a bill or reso uti on. It is not necess try that it shall he read three times on three sepmate day in each or either House. It is not ne-eessary that it shall be oent to the Govern' r fur bis approval. On the contrary, the proposed amendment has none of the force and vitllity of a law. The approval or disappr.~val by the Executive would not affect it. It is a simple prapo~ition made hy the t"o houses to amend the Constitution; bnt while a~ such a proposition it has no force and effed, it is the method prescribed by which, the Legislature and the people concurring, the Constitution is changed. The vitality of the amendment is given by the voters. It rests with them to say whet her the Constitution sball s > be changed, and while no particular form,noreference to articles, sections or paragraphs is prescribed or required, yet it is neces5ary that the requirements which the Con-.titution makes ~hall be substantially complied with, "and the proposition to auwnd be sufficiently plain to enable the Yoters to exercise their judgment in its adoptiOn. Articles, sectim1s and paragraphs are no part of the Constitution excPpt its diYision and arrangement, and were all these wanting in that instrument it would not necessarily be affected in any way. \Yhile for convenience and reference such divisions are made they are in no sense any part of its substance. Tlwrefore I consider that while the error as to the Article in the proposed amendment is unfortunate, it does not of itself defeat the object sought to be attained. The General Assembly in effect declares it to be in its judgment best for the interest of the State that its meetings should be annual and changed to the fourth 'Vednesday in October, and proposes an amendment in apt words, to change an existing paragraph in. the Constitution to bring about this result; but through an error locat!.'s the words necessary to be changed in one part of the Constitution when they are really contained in anothEr part of the same instrument. Discarding all inaccuracies, errors and references, this is the substance of the proposition. It is plain and it is unmistakable. There are no words in the CJnstitution which conflict with it. Nor do the words which regulate the period and time of meeting of the General Asembly occur but once in that instrument, to wit: article 3, section 4, paragraph 3; there the words proposed to be stricken do occur. Refer-

52
ring to the language and intent of the Constitution to ascertain if the Act does contain a proposed amenlment, I am forced to rrgard these words whtch occur in section 1st of the Act, to wit: "That article 2, ser.tion 4, paragraph 3 of the Constitution of 1877 be altered and amended by striking out the word 'biennially" after the word "and" and before the word" thereafter'' in the third line, and sub Etituting therefor the word "annually," so that the first clause of .said paragraph, when amended, will read as follows: "The first meeting of the General Assembly, after the ratification of this Constitution, shall be on the fourth wednesday in October, 1878, and annually thereafter on the same day until the day shall be changed by law," as a propoEed amendment to that instrument by the General Assembly. The voters cannot be mistaken as to the -ffect of the meaning of the language used, whether it occurs in atticle 2 or article 3; and notwithstanding the errors and inaccuracies I construe the first section in this Act to be a proposition to amend the Constitution so that the Legislature shall meet in se~sion on the fourth Wednesday in October in each year.
By reference to section 1 of the printed Ac~, it will be observed that the Constitution is ref~rred to as that of 1887. This is a clerical rror. The enrolled bill, as well as the engrossed and original, used the figures 1877. It is also true, that the fir~t section proposes to strike out" biennially," and in,oert in lieu thereof "annually," and then prescribes that the sertion will read as set out; and that when t'1at word ig st-ricken, anrl "annually" in~erted, that the paragraph will not read as set out; but in the view I takP, this is immaterial, because the first section thus set out declares bow the paragraph shall read when amended, and this declaration I construe as tlte amendment proposed. By reference to the House Journal, page 1217, it will be found that this proposed amendment was entered in full upon the journal. That it received the ne<~~sary two-thirds Yote by ayes and nays, which was properly entered. By reference to the Senate Journal, page 797, it will be found referred to as a bill of the house, to alter and amend article 2, section 4, paragraph 3 of the Constitution; that it received the nece,sary two-thirds vote, and the ayes and nays were entered on the journal. It is m1doubtdly true, that this proposed amendment should be set out in full upon the Journal of the Senate, as prescribed in the Const1tutiun, and that the same was not done; but that the propoRed amendment was a bill of the Honse; it was the sam a bill which is now in the office of the Secretary of State, and published in the authoriz,d volume of the acts, and its title was entered on the Journal of the Senate. This identifies it, and connects it with the action of that body. It may be a question whether the constitutional requirement to enter the amendment on the journal of each house is mandator~ or

53
directory. If the latter, th"n its nonobRervance pertains to a matter of form. In any event, however, it is referred to, and entere I on the Journal of the Senate, so as to be id,..ntified.
It is a matter of much regret that so important a question as the validity of the form of an amendment to the organic law shall be a matter of construction, carrying with it as it does results of so great importance.
The Act orovides that the Goyernor shall cause this ame:1dment to be published in one or more newspaper:l in each congressional district, for two months previous to the next general election; that the form of ballot shall be "ratification, " or "against ratification. " I suggest, however, that while this mode of ballot be strictly followed, that there be explanatory words, referring to the correct article of the Constitution sought to be amended. 'rhe effect of this amendment, if adopted, will be to make the session ofthe General Assembly annual instead of biennial.
The next and last amendment 'Which I find in the published volume is that to article 2, section 4, paragraph 6 of the Constitution, and here again is an error.
There i~ no such paragraph in the Constitution. This amendment was proposed, so as to limit the sessions of the General Assembly. Paragraph 6, section 4, article 3 of the Comtitution prescr bes that: "No session of the General Assembly shall continue longer than forty days, unless by two-thirds vote of the whole number of each house." It was t J this paragraph the General Assembly intended the amendment to apply. The amendment proposes to strike out the words "forty days, " unless by two thirds vote of the whole number of each house, and to substitute in place of these words "fifty days." 'Vhile if nothing else was set out in proposed amendment it would be entirely invalid, yet inasmuch as the General Assembly proposes, that if the amendment is ratified, that that clause of the Constitution shall be in the following language: "No session of the General Assembly shall continue longer than fifty days, provided that if an impeachment trial pending at the t>nd of fif y days, the ses_ sion may be prolonged until the completion of said trial." As before stated, the constitutional regulation of sessions of the General Assembly is contained in paragraph 6, section 4, ar icle 3, and occurs. nowhere else in that instrument. The plain proposition is made, that if ratified by the people, the Constitution shall be so amende<l that no se~sion of the General Assembly shall continue longer than fifty days, etc. This I take to be a plain and unmistakable proposition, and without reference to any errorB or inaccuracies which may occur by reference to paragraphs, sections or articles; if it shall be ratified by a majority of the legal voters then the Constitution will so read, and be enforced for the reasons gi\'en in con,idering the previously proposed amendment. This act likewise prescribes the same manner

54

of advertisement, which is the constitutioal method. It further pre-

scribes that as to ballots, they shall contain "ratification" or "against

ratification." I make the same suggestion, that in addition theieto, n~ferenee should be made to the properarticle,. section and para-

graph of the Constitution.

I have thus given to your Excellency my views as to these pro-

posed amendments, and will only say, in addition, that even if my

construction be not a proper one, the validity of these two last

amendments would rest on a question of construction. Such being

the case, I do not think the Executive would be at liberty to do

otherwi~e than follow the terms of the several acts, and submit these

various amendments to the suffrages of the qualified voters for their

action.

Very respectfully,

'\V)I. A. LITTLE, Attorney-General.

Warm Springs, CJa., July 22,1892.

(12)
ATLANTA, GA., August lOth, l8U2.
Ilis E:cccllency, TV. J. Northen, Goremo1:
Sm-I am in receipt of your request for my opinion on the following state of facts:
A reward was offered by the Governor for the arrest and delivery to the sheriff, with proof to convict, of a person charged with crime. Certain persons from another State arrested the party charged, in this State, to be held for another offence committed outside of this State, and temporarily committed him to jail in this State awaiting extradition. while so confined here, attention of the proper prosecuting officer was callecl to the fact of his confinement, and he was then prosecuted and convicted for the original offence committed in this State, which furnished the occasion of the reward. On his trial the evidence necessary to convict, was furnished by parties in this State, "ho called the attention of the prosecuting officer to the f~on finement and arrest of the party charged.
The que~tion is, are the latter parties, who notified the authorities of the arrest, and furnished the proof necessary to convict, entitled to any part of the reward, and if so, what parts?
The authority of the Governor to offer rewards is found in Section 58 of the Cocle, founded on thP Acts of the General Assembly of 1872 and 1871'1; the authority there given is that the Goyernor in his discretion, shall offer and cause to bl' paid rewarcls for the detention or

55
apprehension of the perpetrator of a felony committed within this State and the .reward was offered under this section of the Code ami in llccordance with its ,terms. In the present cas.e, the reward as I understand, was offered by yourself, for the arrest of the party (;barged, with proof to convict; the proof to convict was a condition on which the reward would be paid for the arrest, but the basis of the reward was the arrest. If a person arrested the party charged, but did not furnish the proof to convict, he could not claim the reward; if he furnished the proof to convict, but did not arrest, he was not entitled to the reward, because he di<l not perform the service which the proclamation declared would entitle him to the fixed amount of pay.
I understand as the real circumstances of the case that the persons claiming the reward did not arrest the party charged. After others bad effected the capture, and the party charged was under arrest and in prison, the claimants furnished the proof, which brought about the conviction ; the arrest being the:basis of the reward, it is my opinion that without having accomplished this essential part, that the condition which would entitle the party to be paid has not been performed, and he would not be entitled to the reward, nor any part of it.
Rhould the arresting parties, and the parties furnishing the neces sary evidence, get together and jointly show the fact of arrest ancl that tlw evidence was furnished, by them or either of them, which resulted in a conviction, then jointly they would be entitled to the whole reward, because then all the conditions are met, to wit: Arrest, furniEhing evidence to convict.
But, neither the one who arrested hut furnished no evidence, nor the other who, after the arrest by another, furnished the evidence which resulted in conviction, could on an application for the rewanl show sufficient facts to entitle him to be paid. Yery respectfully,
W)I. A. LITTLE.
Hon. 11'. J. ~\"ol'fhm, Governor : :-;m-1 am in receipt of your letter of tlw 12th reciting the follow-
ing statement of facts. A reward was offered by the Governor for thP arrest and delivery to the sheriff, of willie Bell, charr,ed with murder. In the opinion of the Governor, this reward was earned by one \\'illiam Henry Bell, but since the arrest and delivery of Willie Bell, and before payment of the reward, William Henry Bell <lied.

56

Temporary lettErs of administration were granted by the proper

court on the estate of William Henry Bell, and the administrator

makes application for the payment of the amount of the reward, and

my opinion is desired on the question whether payment should be

made to that representative.

In reply, I beg to say, the Governor is fully authorized under the

law to offer rewards for the arrest of persons charged with crime,

\Vben such rewards are offered, the persons who perform the ser-

vice have a valid legal claim against the State. lf this claim were

against a private individual it could be sued for and recovered.

Being against the State, it stands on the same footing with any other

debt.

William Henry Bell, under the facts stated, was, during his life, en-

titled to collect the amount for having arrested Willie Bell and de-

livered him to the proper officer.; be bad performed all the service

on which the payment of the reward was made contingent. Being

so entitled, the right to payment on account of his estate vested in

its legal rep1esentative at his death.



The estate of William Henry Bell is now represented by a tempo-

rary arlmiuistrator. Such administration has authority to collect

and taKe care of the effects of the deceased, and continue to do so,

until permanent letters are granterL (Code, 2487.)

This being an admitted claim to which the intestate was entitled,

the administrator of his estate is legally authorized to collect it, and

if no permanent administrator has been appointed, the temporary

administrator is fully anthorized by law to receive and receipt for

the same.

Very respectfully,

\VM. A. LITTLE.

(14)
SE!'TE~IBER 19th, 1892.
Hon. W. J. Northen, Gorernor:
SIR--Quartermaster General \Vest, submits the question: Can any part of the appropriation made for the MiEtary Encampment for the year 1891, be used in payment of balance of expenses for the Encampment for the year 1892, if it should be found that the appropriation for 1892 has not been exhausted.
In replying to this question, I would say that by the Act approved

57
Dec. 26th, 1890, the sum of twflnty-five thousand dollars was appropriated for each of the years 1891 and 1892, that is, $25,000 for 1891, and $25,000 for the vear 1892 ; this appropriation is for organization, arming and equipment of the volunteflr forces as provided by the Act of 1889. That Act directs the Advisory Board to provide each year a camping ground, etc.
The appropriations are made separate and distinct for each year, and being so made, no part of the fund appropriated for one year can be used for the expenses of any other year.
Very respectfully,
"rM. A. LITTLE.

(15)

SEPTE)IBER 20th, 1892,

Hon. W. J. Northen, Governor:

Sm--I am in receipt of your request of the 16th inst. for an opinion

as to the duty and authority of the Governor, when it is considered

action should be taken to protect people of the State from infectious

disease, and submit the following on the question submitted:

Both municipal and county authorities are invested with ample

power and authority to establish quarantine, make a::;d enforce rules

and regulations to govern the same, establish hospitals, pests houses,

etc. Code of Georgia, sections 1375 to 1393, inclusive.

In addition to this power given to counties, cities and towns, to pro-

tect the respective localities of each, the Governor may by proclama-

tion, when deemed necessary, give such orders to prevent the spread

of contagious or infectious diseases within the State, and make such

appointments and regulations concerning the same as he may deem

proper which shall be stated in the proclamation, and a violation of

such regulations subject.s the offender to punishment. Code, 1384.

Under this authority your Excellency can, in my opinion, exer-

cise very great power whenever it shall appear that the same is

necessary by general rules, regulations and requirements to prevent

the spread of infectious disease, and can appoint all necessary offi-

cers to carry into effect the rules and regulations so established by

you, and persons violating the same are subject to indictment and

punishment. Code, 4559.

Very respectfully,

WM. A. LITTLE.

5

58
(16)
rion. W. J. Northen, Governm :
Sm- I am in receipt of your letter informing me that on the 11th inst. you issued a commission to H. E. Cary as Tax-Receiver of Troup county, in pursuance of an order of appointment by the Ordinary, under authority given in sections 260 and 917 of the Code. That the County Commissioners of Troup county had notified you of their selection of another person to fill that vacancy. That as those Com_ missioners were not commissioned from the executive office, no record coulrl. be kept of their appointment or election, and you were not, therefore, aware of the legal existence of that body, with therequest that I look into the same and give an opinion as to which appointment is entitled to be commissioned.
Section 260 of the revised Code gives to the Ordinary of the county authority to appoint some qualified person to discharge the duties of the office of Receiver of Tax Returns until the vacancy is filled. Tha<; section applies to Clerks of the Superior Court; but by section 917 of the Code, vacancies in the office of Tax-Receiver are filled as vacancies in the office of Clerk of the Superior Court; hence, by the Code, the Ordinary makes the appointment; but by an Act approved February 28, 1876, Commissioners of Roads and Revenue for the county of Troup were provided for, and to consist of five (5) freeholders to be elected by the Grand Jury of that county.
Under article 6, section 19, paragraph 1 of the Constitution of Georgia power is given to the General Assembly to provide for the creation of County Commissioners in such counties as may require them, and to define their duties. Renee the creation of County Commissioners by the Legislature is entirely within authority under the present Constitution. The Act of 1876, which created this board for the county of Troup, was passed prior to the adoption of the Constitution of 1877; but by article 12, paragraph 4, that instrument provides that private Acts passed for the benefit of counties not inconsistent with the supreme law, nor with this Constitution, and which have not been repealed, shall have the force of statute law, subject to the judicial decision as to their yalidity, when passed. Hence, if the Act creating the County Board of Commissioners for Troup county is not in conflict with the present Constitution, then, although a private statute, it is in force. \Ve have already seen that it is not in conflict with the instrument, because the right to create County Commissioners by the Legislature is already given; hence the Act of 1876 is in force.
The Legislature defined, when it created it, tbe jurisdiction of the Board of Commissioners of roads and revenue for Troup county ; and by the 8th paragraph of section 3 of that _<\ct (Acts of 1876, p.

59
294) declared that said Board of Commissioners should have exclusive jurisdiction over all other matters over which the inferior court had jurisdiction at the time it was abolished, when sitting for county purposes. The inferior court was abolished by the Constitution of 1868. Prior to that time it had, among other things, jurisdiction as follows: "In supplying by appointment to vacancies in county offices and in ordering elections to fill them." (Code of Georgia, by David Irwin, in 1H67, section 346, paragraph 5.) Hence, at the time of this abolition, the inferior court alone had the power and authority to appoint to a vacancy in the office of Tax-Receiver of Troup eounty. By the Act of 18i6 power and authority of the inferior court on this subject was expressly given to the Board of Commissioners of roads and re\enue for the county of Troup. And the appointment of that board in my opinion, is the legal tax receiYer for that county.
I am very respectfully, 'v~r. A. LrTTLE, Attorney-General.
(17)
Ilon. TY. A. ll'right, Comptroller-General:
Sm-I am in receipt of your communication informing me that the Guarantee Lloyds claim the right to transact the business of guarantee and accident insurance in Georgia, without reference to the provisions of existing laws regulating insurance in this State, and desiring my opinion as to the existence of such right.
The plan of the insurance contemplated is as follows: "'rhe Guarantee and Accident Lloyds is composed of one hundred of the New York business community, who have combined for the purpose of earning on the business of individual underwriting. The suh~criber~ h;\'C' deposited a large cash guarantee fund, which in addition to the premium receipts is available for the settlement of all claims."
" In case of a vacancy occurring from the death or business embarras~ments _of a subscriber, his place is immediately filled by one from the waiting list."
"Suit may be brought against any one of the underwriters, and a jmhpnent against one is held binding against all."
The particular claim made by the Lloyds is that all of our law, which imposes terms, conditions and restrictions on the business of

60
insurance in this State, applies solely to companies doing the business of insurance; it claims that its contracts are individual contracts, and being so, no terms, conditions or restrictions, which by law are made applicable to companies, apply tel the method of insurance ('arr1ed on by it, and as individuals they have the right to conduct the business of insurance in this State, without a license, or complian<e with .any terms imposed on companies.
Under our statutes as they have existed for many years, as well as under the common law, contracts of insurance in general may be entered into between any persons, natural or artificial. A comparatively recent statute, howevPr, so far as affects contracts of life in surance, restricts insurers to be " persons or corporations specially authorized by law."
It can therefore make but little difference in this case, whether the contract~ of the Lloyds be treated as by a company, by an assotia tion, by a combination or by individuals. Certainly, howeyer, the plan pre~ented contemplates more than a mere personal liability for indivi<ltMl contracts, and it would s.em that it has a fund which might be treated as capital stock paid in, and that all of the members (one hundred) are in certain events liable to a judgment rendered against either.
\Vere the question dependent on the naked fact of whether the plan set out cnnstitnted purely individual contracts or contracts Of the a-soc1ation known as Lloyds, much might be said in fayor uf the latt,r pr..position. HoweYer this may be, there are other matters which make an investigation of this point immaterial.
Without entering into d.-tails as to the conditions on which insurance companies of different kinds may carry on business in the :-;tate of Georgia, but assuming that all such companies shall receive from the Insurance Commissioner a license to do so, which license can be only issued on certain terms prescribed, we are to inquire whether the applicant is to be cons dered a company, so far as tore quire a license as a condition precedent to carrying on the business of insurance.
The Act approved March 19th, 1869, Acts 1869, p. 127, declares that it shall not be lawful for any InRurance Company or agent of the same (excepting Masonic Odd .Fellows and Religions) to transact any business of insuranc~ without first procuring a cert1ficate of authority from Comptroller-General, etc. . The caption of this Act is, " to regulate insurance bu~iness and insurance agencies in the State of Georgia. It will be observe<! that the operatiOns of this Act extend to dl insurance companies and agencies.
The Act approved October 24th, 1887, being our present insurance law, is very lull and complete, referring to all classes of insurance

61
companies, and prescribing the terms on which companies of different kinds might be allowt d to do business in Georgia. Tile caption Df this Act is, "An Act to regulate the business of insurance in this State, and for other purposes."
It will thus be seen that in both the Acts of 1869 and 1887, the General Assembly saw fit to make yery c mprehensive enactments in relation to the different Jorms and kinds of insurance. A cas a] reference to either will make it plain that the o/J)ect of these enactments was to protect the people of the State in all branches of msurance _from fraud, inso]\ency or mismanagement on the part of insurance companies. The old law, it was plain, did not do so, and the new enactment gave a remedy by creating an Insurance Commissioner, requiring a liceme from him to do business, and making sol.vency of the company, periodical statements, deposit of bonds and other safe_ guards a requisite for such license. Not only was this done, but for the express and stated purpose of regulating the business of insurance; the businesR was to be regulated by these provisions.
It is true that the body of the Acts, in regulating the business of insurance, in letter included only companies, corporations, associations. It is true also that when these Acts were passed, and up to this period of time, the business of insurance in Georgia has been done exclusively by companies. Never until this application has there has been one for an individual to carry on this class of business.
The question now presented is, does a proper construction o.: the Act of 1887 extend its provisions to individuals who desire to engage in this business in Georgia?
The Act has for its avowed object the regulation of insurance as a business, in Georgia. A reference to its terms indicates clearly the mischief in the old law, and the remedies provided by its terms ; it is, therefore, a remedial statute.
:\Ianifestly its object is to protect the people of the State in business of this character.
If the Act is to be construed according to its letter, by a limitation of i-ts provisions to companies, and individuals are allowed to engage in the business, then the business is not regulated ; the mischief in the old law in .part remains, and no safeguard is thrown around the business when individuals are the insurers.
Two classes of statutes are liberally construed ; remedial statutes and statutes which concern the public good or the general welfare. l-lutherland on Statutory Construction, p. 521.
Remedial statutes not only include those which remedy defects in the common law, but defects in our civil jurisprudence generally, embracing not only the common law, but also the statutory law. Do. Sec. 40!l.

62
If a statute may be liberally construed, everything is to be done in advancement of the remedy or the purpose, consistent with any construction which can be put upon it. 13 Ga. 55.
The courts follow the reason and spirit of the statute, until they overtake and destroy the mischief which the Legislature intended to suppress. 34 Ga. 251. And they frequently go beyond the letter of the statute. 2 Ga. 81- 252; 3 Ga. 380; 10 Ga. 71.
As early as Plowden, it was held, "vVhere an Act is made to remedy a mischief in order to aid things in like degree, one action has been used for another, one thing for another, one place for another, and one person for another." 1st Plowden, p. 178.
"If they are in like reason, thev are in like law." Coke J,it. in statutes, the sense signified. is the law, the letter its servant or vehicle: Bell, C. C. 134. vVhen the scope and intention of an Act are ascertained by all available aids, words whose ordinary acceptation is limited, may be expanded to harmonize with the purpose of the Act. Sutherland, p. 533, and authorities c1ted. The words "single man" in a statute, have been held to include "an unmarried woman." 7 vVall. 219. Words are to be considered as having regard to the subject-matter, and in so doing it is impossible to conclude that when the Legislature speaks of an "orphan," it meant to designate alone a minor whose parents are dead. 10 Ga. 65. In construing a remedial statute which has for its end the promo tion of important and beneficial objects, a large construction is to be given, when it can be done without actual violence to its term~. 19th Conn. 597. In seeking the intention of the law-maker, we are to assume that the statute was designed to be an adequate and final arrangement for the public exigency wh1ch called for its enactment. Denio in 19th N.Y. 422. Reference is made to the above rulings as authority to extend the letter of the statute when it uses the word "company" to include individuals, when each are engaged in the business of insurance. The avowed purpose anJ object of the Act being to regulate the business of insurance, insurance being a business in which corporations and individuals may alike engage, the object of the regulation being to protect the people against unsafe, insecure insurance, it being impossible to do so by confining the terms and restrictions of the Act to its letter, regarding wholly the int.ent of the Legislature, and assuming the business of insurance to have been done exclusively by com panies at the date of the enactment, it is my opinion that the terms, conditions and restrictions imposed by the Act of 1887 on companies who may desire to engage in the business of insurance in Georgia

63

are by that Act likewise imposed, as far as they can be made appli-

cable, on individuals, associations and partnerRhips, who likewise in

Georgia engage in the same business.

vV~r. A. LITTLE,

Attorney-General.

(18)
ATLANTA, l\Iay 19, 1892'.
Hon. W. A. Wright, Comptroller-General:
Sm-Some days since I received your communication, requesting my official opinion on the question, whether the property of the Central Railroad and Banking Company of Georgia is subject to the provisions of the Act of 1889, entitled "An act to provide a system of taxation of railroad property in each of the counties of this state through which said railroads run, and to provide a mode of assessing and collecting the same and for other purposes," and also of the Act of 1890, entitled "An Act to make railroad companies subject to municipal taxation."
In compliance with your request, I furnish the following opinion on the subject:
The Act approved December 2-!, 1890, making railroad property subject to municipal taxation, adopts as a basis of assessment and valuation for the different municipalities the plan prescribed in the act approved October 16, 1889, for the assessment and valuation of such property, for the purpose of county taxation.
After declaring "that all the property both real and personal belonging to railroad companies in this state which is within the taxable limits of any municipal corporation, shall be and the same is hereby made subject to ta"ation by the said municipality as fully and as completely as is the property of other corporations within the said taxable limits, the Act makes it the duty of the municipal authorities to cause the said property within the said taxable limits belonging to a railroad company, to pay its proper and just pro rata of the municipal taxes;" this act by section 4 makes applicable the provisions of the Act of 1889, to effect the assessment and colleetion of the tax so authorized. As this latter Act is the authority for the levy of county tax and its plan and detail are made the basis for the levy and collection of the municipal tax, reference will hereafter be made alone to it as determining the scope and effect of the two Acts.
The right of a county .or municipal corporation in Georgia to assess and collect taxes must be conferred by the General Assembly, and

o4
prior to the passage of the Act of 1889 the general plan and authority delegated to counties to levy taxes was by a given per cent. on the amount of the state tax for the year of the levy. Code, 509.
The Act of 1889 provided "that the property of a railroad company shall be subject to taxation in each and every county through which the same passes, to the same edent and in the same manner that all other property is taxed" (sec. 2), and further provided necessary machinery for assessment of values of this taxable property between the several counties, and also provided a method of collecting the same.
Section 4 of the Act contemplated that there might exist cases when by chartered rights the property was not subject to such taxation, and declared when under these circumstances railroad property was only subject to be taxed a given rate on its net income, that the county tax should be levied on an amount equal to the estimated amount of income for each county in a proportion prescribed.
The constitutionality of this Act has been reviewed by our court (Columbus Southern Railway vs. Wright, Comptroller-General, not yet reported). The court disposes of section 4 by holding that it is inoperative, and settles an important question which might arise in the discussion of the case now under consideration in the following unmistakable language: "Can railroad property which is taxable Qnly on the income system be subjected to any further taxation after the State hHs already exacted for State purposes the full limit of tax.ation authorized by the charter of the company owning such property'? This question must be answered in the negative."
Under this decision all further consideration of section 4 of the Act is eliminated.
The Act of 188\l is a general law, and authorizes every county in the State to impose and collect taxes on the property of railroads located in its jurisdiction, anti if the property of the Central Railroad and Banking Company is not subject to be taxed by the counties in which it is located under this general law, the right of the exemption must be clearly shown.
"A claim of exemption from county and municipal taxation can not be supported any more than a claim from State taxation, except upon language so strong as that fairly interpreted no room is left for controversy. Xo presumption can be made in favor of the exemption, and if there be reasonable doubt the doubt is to be solved in favor of the State." Bailey vs. .M:aggwire, 22 Wallace, 215.
The Central Railroad was first incorporated by an Act approved December 20th, 1833, under the corporate name of "The Central Railroad and Canal Company of Georgia, and the corporators were the corporations of the cities of Savannah and Macon and their associates, and were authorized to construct and maintain a canal or

65
railroad from Savannah to Macon; were given the power "to buy, hold and sell real and personal estate," and by section 7 it was enacted that "the said canal or railway, and the appurtenances of the same, shall not be subjected to be taxed higher than an half per cent. upon its annual income." Acts 1833, p. 246.
In 1835 the General Assembly of Georgia passed an Act, approved, December 14 (Acts 1835, p. 217), to amend the Act of 1833, so as to alter and change the name of the company and to give it banking powers and p1ivileges, and it was under this latter Act that the corporation obtained the name of the Central Railroad and Banking Company of Georgia, organized and constructed the road.
In this amendatory Act it is provided in section 1, "That said incor poration shall not purchase and hold more real estate than may be necessary and proper for the purpose of laying, building and sustaining said railroad, and such as shall have been bona fide mortgaged to it as security or conveyed to it in satisfaction of debts pre viously contracted in the course of its dealings or purchased at sales upon judgments which shall have been obtained for such debts."
It will be noted that in the original charter the corporation was authorized to buy, hold and sell real and personal estate, while in the amenrling Act of 1833, this power as to real estate was restricted, first to such as was necessary and proper for constructing, building and maintaining the railroad. Second, such :as might be conveyed to it in payment of debts. Third, such as it .might bny in satisfaction of debts. And real estate not embraced in one of these three classes the corporation was prohibited from holding.
The Act of 1835 also changed the scheme and contract as to the taxation of the property of the company. Section 18 of the Act provides "The said railroad and the appurtenances of the same shall not be subject to be taxed higher than one-half of one per centum upon its annual net income, and no municipal or other corporation shall have power to tax the stock of said company, but may tax any property, real or personal, of the said company, within the jurisdiction of said corporation in the ratio of taxation of like property."
It is not only a legitimate but a necessary conclusion in construing the words limiting the liability to taxation, that the legislature had in mind the kind and class of property it had authorized the com pany to hold, and that both the limitation and the express power to tax related to such property; taking the two Acts together, it was authorized to hold personal estate (without limit) and such real estate as was necessary for the.construction and maintenance of the road, and such as it might take in payment of its debts.
In the absence of a limitation (in the Acts) of the power to tax the property of the company, such property would as soon as acquired, bPcome subject to state, and, when authorized by the state, to county

66
and municipal taxation just as other similar property would be, in the hands of other persons or corporations. (Code, 509, founded on Act 1821.)
If it be contended that the limit of taxation to one-half of one per cent. of the income under section 18 of the Act of 1835 is to extend to all the property of the company, used in the construction and operation of the railroad, then the right of municipal and other corporations to tax "any property real and personal of said company" given in same section, is limited to such property as the company might take in payment of debts; the effect of this construction would be to render the entire reservation of the right to tax of no force.
In order to subject to taxation such property as might be acquired by the company in payment of debto, it was not necessary to recite that municipal and other corporations should have the right to tax such property, because that property was not affected by the limitation and was taxable under the general law (40th Ga. 6-l6); the limitation extended only to the railroad and its appurtenances, and this property is in no sense appurtenant.
In seeking the intent of the legislature, is it fair to presume that when that body declared that municipal and other corporations should have the power to tax "any property, real or personal, of said company," it only meant to indude that property which was already clearl J taxable, without this grant of power? The state agreed for all time so long as the charter continued, that for itself it would not exact more than an amount equal to one-half of one per centum upon its annual income as a tax on the railroad and its appurtenances."
This was a commu"tation of taxes, the state agreeing that the sum named is, under the circumstances, a fair equivalent for what the customary taxes would be. Cooley on Taxation, 69. IE nothing more had been said, under the authority of the Columbus Southern ease this would be the limit not only of the authority of the state to tax, but of its authority to confer on counties and municipal corporation,; the right to tax.
But something more is enacted in the same limiting clause, that is that municipal and other corporations may tax in the ratio of taxation of like property. Any property includes all property; the railroad and appurtenances are property, and it is perfectly consistent for the state by the contract to commute the tax for itself at a giYen rate, and reserve the right to counties and cities to tax as other similar property is taxed by each.
Indeed, by such a clause the right could and would be reserved; without it, the limit of taxation is fixed. If we give to this section the meaning that the reservation of the right of municipal and other corporations to tax applies only to property other than railroad and

67
the appnrtenances, the entire section would then have exactly thesame meaning and effect as if 'the reservation of the right was entirely and literally omitted.
It ha~, however, been fnrther said that the clause in this section which provides that ''no municipal or other corporations shall have the power to tax the stock of said company," means that they shall not have the powerto tax the" railroad and appurtenances," because this stock includes the property of the corporation, necessary for its business.
There are in general four methods of taxing corporate interests. Fir'!t-Tax on franchise. Second-Tax on capital stock. Third-Tax on real and personal property of the corporation. Fourth-Tax on shares of stock in the hands of stockholders, and' it is within the discretion of the Legislature to tax the corporation in two or more of these ways, and to levy a double, treble or quadruple tax on the corporate interests. Cook on Stock and Stockholders and C')rporation Law, chap. 34: Red on llailways, vol. 2, p. 453; 8Jst Ill. 111, 556; Heisk. 663, 795. The Legislature might impose (unless restricted by the constitution) a tax on the capital stock and not on the corporate property, and so it might (unless restricted) ,exempt the corporation from tax on the capital stock and impose a tax on the property. I am aware that it has been held by our court in the Rome R R. case in 14th Ga., and subsequently affirmed in other cases, that "capital stock" includes the property of the corporation, and that exemption from or limitation of tax on capital stock is construed to exempt or limit the rate of taxation on property necessary for the use of the corporate business, and that this is now the general rule of law, when the exemption or limitation is not qualified by other words, but when so qualified the exemption is not to be presumed, but can only stand, when made in clear and unambiguous words. Cook, in his work on Stock and Stockholders, par. 3, says: "That occasionally it happens that under the terms of statutes relating to taxation,which have been drawn without regard to the technical meaning of words, the courts will construe the capital stock to mean all the actual property of the corporation. But this is for the purpose of carrying out the intent of the statute and is not the real meaning of the term." It will be observed, that the words "capital stock" are not used in section 18, but only stock shall not be taxed. It is true that stock may be held to mean the capital stock, but it may also h,ave given to it its general meaning "shares of stock" and no violence be done the meaning of the section; if the latter meaning is to be given it, then clearly the term would not be held to in-

68
elude corporate property, but the prohibition would be against taxing "shares of stock" in the hands of individuals, being one of the corporate interests subject to tax to which I have before referred.
But, assuming for the present that "capital stock" of a railroad company does include the road and property appurtenant to its construction, maintenance and operation, it does so by legal definition, which, of course, is to be accepted as expressing the intent of the Lt:gislature, unless another intent be clearly shown, when it declares that" no municipal or other corporations shall have the power to tax the stock of saicl company."
I maintain, however, that a construction which gives to the word ''stock," as used in section 18 of the charter, the meaning of the words "capital ~tock," so as to include the real and personal property belonging to the company, fails to give the true intent of the Legislature. It will be remembered that in 1835 there were very few corporations in Georgia, and no railroads.
A reference to the legislation of that period discloses the fact that the annual tax Acts were very short and simple, merely adopting the tax Act of a former period, and that Act likewise adopting a former Act, so that the tax authorized by law to be levied and collected at the time this charter Wll;S granted rested in part upon legislation had early in the century.
The Act of 1804 was a general tax Act, Cobb Dig., p. 1, 10-H, and imposed a tax on real and personal property, polls, professions, etc., and by the Act of 1807, it was perpetuated and in force at the time the charter to the Central Railroad was granted. By the Aet of 1817, which was in force in 1R35, a tax was levied on stock in banks, but not as now ai'se~sed against the individual shareholders, but assessed against and collected from the corporation itself, and was essentially a tax on the stock.
The Act of 1S20, which, as I understand, was also in force at the date of this charter, levied a tax on stock in steamboat companies as against the corporation, and provided in case of non-payment that execution should issue against the president and officers of the corporation, and if no property of the corporation could be found, should b'J levied on the individual property of the officers.
So that at the time of the passage of the Act incorporating the Central Railroad and Banking Company of Georgia, it was the scheme and policy of the state to tax stock in corporations as stock, and enforce the levy against the corporation; and this scheme extended to county and municipal taxation.
Again, this prohibition against taxing the stock is coupled with direct authority to tax any property, real or personal, of said company.
If the prohibiton against taxing the stock can stand in view of the

69
reservation and direct authority to tax the property as a corporation, is it not manifest that the legislative mind did not give to the word ''stock" a definition which would include all property? In the case of Railroad Companies vs. Gaines, 97 U. S. Supreme Court Reports page 697, it appeared that the charter of the Meruphis and Charleston Railroad contained the following clause in reference to taxation :
"The capital stock of the company shall be forever exempt from taxation, and the road with all its fixtures and appurtenances, in eluding work shops, machinery and vehicles of transportation, shall be exempt from taxation for the period of twenty years, from the completion of the road and no longer. Here was an absolute exemption of the capital stock from taxation; here, too, was a right reserved to tax the property after twenty years from its completion. ~Without going into the details of the case, I refer to the opinion of the court delivered by Mr. Chief Justice Waite, as to the extent of the exemption contained in the original charter.
"After twenty years, the company claimed that the exemption of the capital stock from taxation is equivalent to an exemption of the property purchased with or represented by the capital. There are many cases to be found where it has been held that an exemption of the capital stock of a corporation from taxation was equivalent to an exemption of the property into which the capital had been converted. But in all these cases, we think it will be found that the ques,ion turned upon the effect to be given the term 'capital' or 'capital stock' as used in the particular charter under consideration, and when property has been exempted by reason of the exemption of the 'capital' it has been because taking the whole charter together, it was apparent
that the legislature so intended." * ''' "Clearly nuder such cir-
cumstances it could not have been understood that the enumerated property was to represent the capital for the purpose of taxation. Exemptions are never to be presumed. On the contrary, the pre. sumptions are always against them. It is sufficient to say, that we are clearly of the opinion that the road with all its fixtures was taxable under the original charter after twenty years (March, 187i), and that whatever else was exempted as capital stock, this was not." See also 21 ~Wallace, page 499.
In 98th U.S., p. 563, the court approved the ruling in the Gaines case and adhered to it.
Interpreting the clause limiting taxation which has been quoted by this rule, the conclusion is. irresistible that it was t:be lt>gislative intent that municipal corporations should be prevented from taxing the stock, but might tax the property of the corporation.
In 40th Ga., p. 646, the clause which we have been considering was before ourSupremeCourt; there theauth r:ties of Bibb county main tained that the property of the railroad in Bibb was subject to county tax.

70
The railroad company insisted that the property was not subject under section 18 of their charter, which we have been considering.
The court was divided on this question, although all concurred in the judgment that property not appurtenant to the railroad was taxable by the county under general laws. Justice Warner held that all the property necessary to the railroad costituted a part of its capital stock, and not liable to be taxed, except as specified in section 18.
McCay, justice, held that in the charter, the state had expressly reserved the right to authorize municipal and other corporations (which includes counties) to tax property of any character belonging to the company. Chief Justice Brown held that all property, whether nec-essary or not for maintaining the railroad, could be taxed by counties and cities; but the two last judges concurred that legislative action was necessary to create the machinery for assesaing and collecting.
This case, as I understand it, is to the point that when such power is given by the legislature, all the property of the Central Railroad {?an he taxed by counties and municipal corporations.
In 72d Ga. 211, the county of Houston endeavored to collect a tax imposed on the property of the Central Railroad. The railroad successfully resisted the eff,Jrt, the court basing its decision expressly on the ground that the legislature had not been given the authority to levy and collect a tax.
The case of City of Atlanta vs. Georgia Pacific Railroad Company, 47th Ga., p. lH; 71st Ga., 158, 24, and other cases which might be referred to as denying .the right of a city to tax the appurtenant property of railroad companies, will, when examined, be found to rest on one of two propositions: First, That municipal corporations can impose tax only when the power has beem delegated by the legislature, and that no snch power had been delegated. Second, That no machinery had been provided to put the power in operation.
The foregoing establishe'l in my mind the truth of certain propositions from which my conclusions are drawn.
1. That in limiting the tax on the railroad and appurtenances to an amount equal to one-half of one per cent. on the net income, the legislature commuted the amount which the company should pay as a state tax perpetually, hut expressly reserved the right that mu. nicipal and other corporations might tax all property of the company within their respective jurisdictions.
2. That in prohibiting municipal corporations from taxing the stock of the company, the legislature meant either to refer to shares o: stock in the hands of individuals, or to that species of corporate property theretofore recognized as a proper subject of taxation, in neither case including the property of the corporation,
3. That, as the prohibition against taxing the stock is coupled with a grant to tax all property, to construe the word stock as including

71

real and personal property would qualify the grant and extend the

exemption by implication.

4. That when capital stock is by charter exempted from taxation,

this will not be held to include corporate property, if the language is

ambiguous, nor unless by the language used, the clear manifest in-

tent of the legislature to exempt the property be shown.

Inasmuch then as the legislature has, by the Act of 188(), authorized

counties to impose a tax on railroad property and prescribed the re-

quisite machinery for its assessment and collection, it is my conclusion

that a proper construction of the charter of the Central Railroad does

not exempt any of the property of that company from the imposition

of that tax.

In so advising, I refer to the property of the original company,

under the charter of 1885, understanding your request to be so con-

fined.

Very respectfully,

\V:II, A. LITTLE, Attorney-General.

(19)
REPTE)!BER 20, 1892.
Hon. W. A. Wright, Comptroller-General:
Sm-I received sometime since your request for my opnnon, whether the Act of 1889, which provides for taxation of railroad property by counties, repealed the provisions of the Act of 1883 for taxation by counties of property belonl!ing to the railroad companies, not used in earrying on its usual and ordinary business (Act~ 188:?-8, p. 1), and submit the following in reply.
Tho Act of 188\1 (Acts of 1889, p. 2\J) is very broad in its terms, and is comprehensive enough to embrace all property of every character. The evi(lent purpose of the L2gislatnre, however, ~as primarily to subject to county taxation the general class of railroad property, which before that Act was not taxed by counties, to-wit, propert~ used in the maintenance, construction and operation of the railroad. Before that Act, and indeed even before the Act of 18tl8, property of the railroad companies not used in the operation of the railroad was subject to county tax, under general laws (see Ordinary of Bibb County 1'8. Central Roti!road & Banking Company of Georgia, 40th Ga., p. --), and there was no difference or distinction in the right of counties to tax such property in the hands of railroad companies, and the right to tax the same class of property in the hands of individuals.

72
There is no evidence appearing in the Act of 1889' of a Iegislati ve intent to simply change the method of the taxation of railroad property by counties, unless it appears in the description of the property embraced in the words giving the right to counties so to tax, and inasmuch as the right to tax a certain class of property existed before theAct and a method was pointed out. I think that the bette1 interpretation of the Act of 1889,is that it applies only to that class of property not heretofore subject to such taxation, and the mode and mantler of the taxation therein pointed out, applies to property used in the business of the railroad, and not to that which is outside of such use.
Very respectfully, Wn. A. LITTLE.
(20)
ATLANTA, GA., September 9, 1891.
Hon. W. A. 'Wright, Comptroller-General:
Sm-ln response to your inquiry, "'Vhether in my oprmon the improvements and property placed by the lessees on the Indian Springs Reservation are subject to state tax and if so at what valuation," I beg to say:
This lease was made under the provisions of an Act approved No-vember 11, 1889, and conveys to the lessees for the term of twentyfive years with the privilege of renewal, not only the usufruct, but an estate in the land itself. This term of lease being for more than five year~, is not restrained by section 2279 of the Code of Georgia, but the nature of the estate is to be determined by the provisions of the law embodied in section 2273 of the Code, which expressly determines it as an estate for years, which passes as realty. Further, the lease and the act under which it is made, makes the estate conveyed to the lessees subject to the laws of inheritance, and of di,;position by will, and gives to the lessees the further right of rPnewal, and while it provides in one instance the manner of improvements which should be made, it does not restrain the creation of other valuable improvements needing and recetving the protection of the state government.
Under the laws of our state all real and personal property is ~ub ject to taxation unless specially exPmpted. Section 962 of the Code of Georgia names the Mcintosh reserve as public property, and Art. 7, section 2, par. 2 of the Constitution and the Act of 1878 provide

73

for its exemption from taxation, but there is a proviso attached both

to the sections of the Constitution and the Act of 1878 that makes

the exemption rest upon the condition that the property be not

used for private gain; if it is it comes under the operation of the

general law and is subject.

Is the Mcintosh reserve, under the lease used for private or corpo-

rate profit or income?

Considering the nature of the estate granted by the lease, its free

dom from several restraints which ordinarily attach to an estate for

years, and the provisions of our law to which I have referred, it is

my opinion that the improvements placed on the leased land is sub-

ject to State tax, and in the same manner as to valuation as similar

property of other citizens of this state.

In addition to the foregoing reasons for my opinion, I will say, that

the courts of several states decided in effect that improvemeuts

made on land (title to which is in the state) by third persons, con

stitute a species of property subsistin:~ in the hands of the citizen,

which is subject to taxation (l.Jth Kans. R. 156; 27 Do. 7tll ; 30 Cal.

G45 ).

Yery respectfully,

1V"M. A. LITTLE.

(21)
ATLANTA, GA., May 14, :892.
lion. S. D. Bradwell, State School Commissioner, Atlanta, Ga. D"AR SIR- In reply to your several questions, I beg to answer as
follows: 1st. By section 21 of the Act of 1887, county school boards in the
several counties have been expressly authorized to purchase school supplies for the use of th-=ir respective schools. This authority is general, and rests in the sound discretion of each boatd and for the public good and by clear intendment of the law such payments are to be made from the school funds of the county. Under this author it.y the board may make any reasonable contract, but it is not the intention of the Act that the school fund in future years shall be unnecessarily taxed.
It will be remembered that the laws require the public schools to be taught a given length of time, and no part of the school fund neeessary to maintain the school fur the time directed by the Act can be used in payment of any bills, or on any contract. Should a board
6

74

have in its hands a school fund arising from taxation or any other

source, there is no reason why it could not purchase supplies for

cash, and pay bills which have been incurred bona fide for school fur-

niture, etc., subject primarily to the obligation of law that schools

should be taught as directed.

It would, however be dangerous for a school board to contract or

assume debts on the faith of the school fund to be received from the

state, as the distribution of that fund is subject to the wisdom of the

Legislature, and must be applied as directed by law. In many cases,

the individuals composing tl!e board might make themselves person-

ally liable on such contracts, with no power to use the money fur-

nished by the state in payment of the same.

2d. I would say that a board of education can certainly repudiate a

contract made by fraud. A contract so obtained is not binding.

3d. The meaning of section 28, as I understand, is that the county

board of edueation shall prescribe what text-books, etc., shall be used

in the school. "From time to time" means that they need not pre-

~cribc all such books at any one time, because they may not be ready

to prescribe all. They may prescribe a grammar to-day, a speller next

month, a geography later, and so on from time to time just whenever

information or investigation may enable them to select the best; but

when any of these books are so prescribe], then such book o:hall not

be changed for five years within the time it was so prescribed, except

by a three-fourths vote of all the board. A three-fourths vote can

,change the book, whether it was first prescribed by the county board

of education, or thereafter changed by a three-fourths vote of the

board. In other words, a vote of three-fourths of the board of edu

cation can at any time change school books selected in any manner.

4th. Can those who do not intend to teach in that particular

county be examined'? And has one a right to apply for examination

whose license bas not expired'! It is the evident intention of the

Act to prescribe that a person who desires to teach in a particular

county shall be examined in the county in 'which he expects to teach.

However, the last paragraph in section 29 provides a method by

which licenses to teach may be good in another county; that is, when

indor~ed by the county school commissioner of the county in whieh

the applicant desires to teach. It is my opinion that a proper con-

struction of this Act require3 an examination in that county where

the applicant proposes to teac-h school, but if at any time subsequent,

while the license is in force, he desires for any reason to teach in a

second county, he can do so, provided the county school commis-

sioner of the latter county is satisfied and indorses the license. It

is further my. opinion that one has the right to apply for examination

who bas been licensed to teach, provided that it is at a regular exam-

ination, and the examination is for license of a higher grade than the

one he bas.

Very respectfully,

Wu. A. LITTLE.

76
(22)
lion. S. D. Bradwell, State School Commissioner, Atlanta, Ga. :
DEAR FrR-I am to-day in receipt of your letter with the following statement and inquiry :
"I find on my books that in several counties of this State county School Commissioners are still acting, the term of whose office has expired, in certain cases, for several years.
" Will you please give me your opinion as to the right of such persons to continue the discharge of the duties of such office, and am I to recognize such as the medium of communication between this departmen and the county school authorities as required by the Act of 1887 ?"
[n reply I beg to say that an examination of the question raised in your communication leads me to a conclusion different from that heretofore entertained. Under section 24 of the Act approved October 27, 1887, it is provided that the county boards of education shall select a county commissioner of education who shall holil his offiee for the term of four years. Under the common law, at the expimtion of the term of four years, the duties and authority of this office would cease. However, by reference to section 132 of the Code of Georgia, we find that it is provided, among other things, as follows :
"All officers of this State shall discharge the duties of their office until their successors are commissioned and qualified."
The question was made in the 58th Ga., p. 512, in the case of the county commissioners of Chatham county, where the act provides that the commissioners shall be appointed by the Governor for the period of four .years whether the office did not expire at the end of that time. The court held "there are no words in the Act limiting its operation to any definite period of time, or which indicated, by any fair construction, that it was the intention of the legislature that it should be a temporary law for four years only." The law continued indefinitely untiloltered or repealed. The commissioners created by it were to be appointed as therein provided, for four years.
The fact that the word success8rs is omitted in the Act has no le~al significance in view of the general law of the state, etc.
The general law of the state referred to will be found in bection 132 of the Code of Georgia, above referred to.
Under this decision of the court it is my opinion that until a succe3Eor to any county school commissioner whose term has expired has been elected and qualified, that it will be legal and proper to recognize him as a medium of communication between your depart)llent and the county school authorities under the Act of 1887.
l alll very respectf1llly, your obedient servant, WM. A. LJT'fLE, Attorney-General,

76

(23)

Hon. R, T. Nesbitt, Commissioner of Agriculture, Atlanta, Ga.:

Sm-The opinion heretofore requested by you," whether illuminat-

ing oils stored in this state awaiting shipment to other states and

not for sale or consumption within its limits are to be inspected,"

would have been earlier rendered but for the absence from my office

on account of sickness. I now give you below my construction of

our statutes, which govern this question.

The Act approved October 24, 1870, provided a penalty for selling,

offering to sell or giving awa.y oil of a fire test less than 110 F.

The Act of August 26, 1872, was amendatory of ihe Act of 1870; it

prohibited mixing naphtha and iiluminating oils, having a point of

ignition of less than 110 F., etc. By the 4th section of this Act an

inspection was provided, and the 5th section of that Act is in the

following words:

"No person shall sell or keep for sale or in storage any crude or

refined petroleum, naphtha, kerosene, earth rock, coal, machine or il

luminating oil, the products of petroleum, earth rock or coal oil, in

this state without having the same inspected and approved by an

authorized inspector; for a violation of this prohibition, the penalty

is made the same as for an illegal sale."

Taking these two Acts together they are conclusive of two proposi-

tions:

1. That none of the oils shall be sold, offered for sale or given away,

the fire test of which is less than 110 F.

2. That no person shall sell, keep for sale or in storage, any of such

oils, without having the same inspected and approved by an in-

spector.

Has subsequent legislation removed the latter prohibition? I

think not.

The Act approved September 27,1881, raises the fire test of kerosene,

etc., to 120 F. and provides for inspection, fees, branding, etc.; but

as I understand, it does not repeal or modify directly or by implica-

tion section 5 of the Act of 1872, which prohibits keeping for sale

or storage the class of oils specifierl without haying the same inspected

and approved by an authorized inspector.

The Act ap:proved December RO, 1890, amends existing laws in ref-

erence to inspections of oilR in certain particulars and in those only,

to-wit: the method of appointing inspectors of oils, compensation,

fees for inspection, etc.

It is my opinion that section of the Act of 11'72 as codified in section

4556 of the Code is in force, and prohibits, under the penalty named,

any person from keeping in storage the oils named therein, unless

the same has been inspected and found to be of the proper fire test

by an authorized inspector.

Very respectfully, w~r. A. LITTLE.

77

(24)

DECE)!BER 17, 18\Jl.

Hon. R. T. Nestitt, Commissioner of Agriculture :

DEAR Sm-I am in receipt of your request to furnish an opm10n under a ghen state of facts, as to whether you would be authorized to make payment of salaries.
1. A was appointed inspector of fertilizers in 1890 for a term ending November 1, 1891. On November 12, 1891, he had a settlement of his accounts and received his salary to that date,and performed no further service. On December 1 be tendered his resignation, which was accepted.
Is a A entitled to any salary; if so, what, for the time between November 12 to December 1?
2. An exact state of facts in all respects as to B, except that on December 1 you passed an order revoking his appointment.
Is B entitled to salary between November 12 to December 1? It is my opinion that, under the factH stated, neither A nor B

would be entitled to payment of salaries between November 12 and December 1, for the following reasons:

The term for which each was appointed expired November 1,

1891, It is true that up to November 12 each one of them performed

duties and received salaries. This, however, was a matter of favor

and not of right. On October 19, 1891, the law of appointment and

compensation of this office was changed, which Act operated as to

A and Bat the expiration of the term of each November 1.

They have not, as I understand, been appointed by you since No-

vember 1; this being true, and no service having been rendered or

expected after November 12 from either of them I see no basis on

which either could demand a salary. The acceptance of the resigna-

tion of one and the removal from office of the other could have no

effect, for neither had been appointed nor held office under the Act

of 1891, then in force.

Very respectfully,

WM. A. LITTLE.

(25)
ATTORNEY GENERAL'8 OFFICE, Arr,ANTA, GA., Dec. l7, 1891.
Hon. R. T. Nesbitt, Commissioner of Agriculture, Atlanta, Ga .. DEAR Sm-I am in receipt of your request to furnish you an opin-
ion on the construction to be placed on Section 6 of an Act to amend

78
and consolidate the laws governing the inspection etc. of fertilizers, approved October 19th, 1891.
.As I construe the section, power is invested in your discretion : 1. To appoint such a number of inspectors as in your judgment may be necessary to carry out the provisions of the Act as to inspection, etc.
2. The term of office of each inspector shall be fixed by youraelf, and shall be only regulated by the necessities of the ~ervice.
3. That the compensation _to be paid each inspector shall be in your discretion, not to exceed one hundred dollars per month, and if an inspector is appointed for less than a month, then he is to receive compensation at that rate. Each inspeetor shall also be entitled to receive his actual expenses while engaged in the discharge of his duties as such inspector.
The compensation or salary in my opinion is to be paid to each inspector during his term of office as fixed by you, but none of his expenses are to be paid except his actual expenses during the time he is actually engaged in his duties under your instructions and the terms of the Act.
Very respectfully, WM. A. LrTTLE, Atttoruey-General.
(26)
ATLAl'iTA, GA., June 25, 1892.
lion. Phil Cook, Secretary of State, Atlanta, Ga. :
Sm-I am in receipt of your communication asking me to furnish an opinion whether the Act approved October 21st, 1891, entitled an "An Act to provide for the incorporatir~g of railroads in this State, to define the powers and liabilities of the same, to regulate the same, and for other purposes," is now in force ; if so, what effect the same has on prior legislation on the subject of general incorporation of railroads, through your office, and asking a construction of the Act of 1891, so far as the duties it imposes on the Secretary of State.
In reply, I would say in answer to the first question whether that Act is in force, that it is and has been since October 21st, 1891, and its provisions are applicable to all railroad companies incorporated through the office of )he Secretary of State, since the date of its approval.
To the second question what affect the provisions of this Act has on prior legislation on the general incorporation of railroads?

79
I would say, at the time of the passage of the Act of 1891, there was a general law in force in reference to the incorporation of railroadE, to be found in SP.etion 1689(a) of the Code et sequiter. 'rhis general law provided among other things for advertisement, articles of association, prescribing the number which should form a company, for the issuance by the Secretary of State of a certificate of incorporation, etc, and conferred certain powers and privileges on such incorpora tions.
The Act of 1891 contains some provisions and requirements different from this general law in the Code, and changes, takes away and adds to the powers and duties of such corporations, and changes some of the requirements made by the Code to authorize the Secretary of State to issue the charter. It does not, however, <-Jxpressly repeal the general law, but by section 15, it enacts that "all laws and parts of laws in conflict with this Act be and the same are hereby repealed"; consequently no law heretofore enacted is repealed unless it conflicts with the Act of 1891. No legislation is had or attempted to be had by the Act of 1891, as to whether any advertising or posting shall be made as to articles of association, as to the number required to form a company, as to the form of the certificate and other particulars, all of which are prescribed by the general law.
Is the general l!lw as found in the Code repealed by the Act of 18!Jl, and are the provisions of the latter Act to stand alone as the law for the corporation of railroads through tht: Secretary of State ? I think not. Certainly all the provisions of the general law as found inllthe Code, which are inconsistent with the Act of 1891 are repealed, but no more, and the two laws taken together and striking out all the provisions of the old law which are in conflict with the Act, and substituting in the place of such stricken parts the provisions made and changes enacted by the Act, constitutes the law in relation to the incorporation elf railroads through the Secretary of State. The Act does not attempt to repeal any existing laws except such as are in conflict with it. It does not use any apt words cJnveying the meaning that the Act shall constitute all the law for incorporations of railroads. Repeals by implications are not favored. Our Constitution requires "No law shall be repealed by reference to the section of the Cnde, but the repealing Act shall distinctly describe the law to be repealed'' (section 5076, Code). Ordinar~ly, expreFs language is used, where a repeal is intended. 2 Abb. (U.S.) R. 305.
When Acts can be harmonized by a fair and liberal construction, it must he done. 37th Ga. 397; 44 Ill., 198; 11th Wal. 652.
An Act which gives cumulative and not inconsistent remedies does not repeal prior statutes on the same subject. 7th Fla., R. J3; 6th Q. (U.S.) 307.
The repeal extends only as far as the inconsistency extends, 27th

80

Ga. -67, and this is true, even though there is an express repeal of all

inconsistent Acts. 20th Cal. R. H.f.

Hence, in my opinion, the effect of the Act of 18Hl is simply to

amend and change the general law of the CQde (and Acts amenda-

tory thereof) by substituting the provisions of the Act in place of

such parts of that general law as is in conflict and with which it is

inconsistent.

As to your last inquiry, what changes are made by the Act, whieh

affect your duties as Secretary of State in the issuance of certificates

for incorporation of railroad companies? In answering your ques

tion, you will understand that I do not mean to l'efer to the changes

made in the powers, duties and liabilities of the companies incorpo-

rated, but only in the method of becoming incorporated through

your office. All the provisions of the old law in this regard are in

force, except the following:

In the articles of association, it is only necessary to state the name of

the company; the names of the 'incorporators; the points between which the

railroad is proposed to be 1'1tn; the general direction of the road, and the

amount of the capital :stock. An application for a charter must be accom-

pcmied by a fee of .lifty dollars. The Sec!'etary of Stale is prohibited from

i8xuing ct charter or license bPfore the payment of this fee.

Very respectfully,

IV11. A. LITTLE.

(27).
NovEMBER 12th, 18\ll.
Ifon. George II. Jones, Pri~cipal Keeper Georgia Penitentimy:
f:IR-I am in receipt of your request for my opinion as to whether a Chaplain appointed by a grand jury to preach at camp of convicts in a particular county is required to submit a report to you of his service before he receives his compensation?
In my opinion no such report is required to be made to you. Section 4818, addenda to the Code of 1882, fixes the salary at $8 for each Sunday the ChaJllain prear;hes to convicts. Section 4818(a) provides that an itemized account of the Chaplain, audited and approved by the judge of the Sup~rior Court, shall be placed with the Comptroller-General for collecti.on and is paid by Executive Warrant on the conviet fund.
\Vith this compensati.on, as I understand it, you have nothing to do.
Yery respectfully yours, etc., \V)[. A. LITTLE.

(2H)
ATLAXTA, GA., Oetober 1st, 18\ll.
lloo. George ll. .Jones, Principal Keep,;r PenitenUar11:
D"'t: S!R-Yon have asked me to eonstrue the Act approved o~tober l:{th, 1887, which provides a commutation of time for con. ,iets in the penitentiary on two points:
1st. \Vllat is meant by good conduct'? 2.1. For what period of time 'shall the ~roorl con<luct continue? The evident object of the Act is to encoUI'age among the eonvicts a ~pirit"of obe<lience the law, whieh eaeh has violated, and to this means in my judgment to include not only an obsenanee of the statutes of the State, but also reason~ble rules and regulations, neces~ary in material matters connected with the management and discipline of the body of c.mvicts, but does not include a failure to observe minor regulations made to enforce what may be regarded as proper to be done and yet are in fact not essential to good discipline. If a convict shall violate any penal statute of the State in such a manner as would result in his conviction if prosecuted, his conduct would not be good. If he were to violate some police rpgnlation not mat:>rial to good order, then notwithstanding a wise regulation might inflict up0n him some punishment, he would.not necessarily lose his commut>ttion if otherwise entitled. lt fs difficult to draw the line where the distinction begins, because good conduct is a comparative term ; higher than "good conduct is" best conduct. If the statute meant this superlative term it would be filled when a convict's conduct was irreproachable, unexceptionable, etc , but when the statute fails to use the superlath"e it fails to require the highest grade of good conduct, and good conduct may exist, although some exc~p tion can be taken to it, when some reproach may be made to it, and yet that conduct is not bad, that is to say, it is not evil, iujurious,
viCiou~.
If the conduet of a con viet is not evil, injurious or vicious, it may be said to be good, although it may not be perfect, it may not be the best; and if the manner in which be conducts himself is not vicious, injurious or violative of any State law, does not tend to insubordination, then, notwithstanding his conduct may not be unexeeptionable ; notwithstanding he may have been careless or even disobedient in other matters; notwithstanding he may have been eve1f punished, his conduct may be said to be good in the light of the statute.
You will observe that the Act under consideration changed the then existing law on this subjel't as found in the Co1e, section