The first annual report of J. M. Terrell, Attorney-General of Georgia, with an appendix containing opinions

The First Annual Report
OF
J: fii. rEnnEui.t, llttorrney ~ Generral,
OF
GEORGIA.
With an Appendix Containing Opinions.
OOTOBER, 1893.
ATLANTA, GA.:
GEO. W. HARRISON, STATE PRINTER.
(Franklin Printing and Publishing Co.) 1893.

ATTORNEY GENERAL'S REPORT.
ATTORNEY GENERAL's OFFICE, ATLANTA, GA., October 25, 1893.
Hi8 Excellency, W .J. Northen, Governor : Sm-I respectfully submit the following report touch-
ing matters of public interest connected with the AttorneyGeneral's office during the past year:
Upon assuming the duties of this office on the 29th day of October, 1892, I found several cases of importance pending in both the State and Federal Courts, all of which I have either disposed of or now have ready for trial.
RICHMOND AND DANVILLE RAILROAD VS. RAILROAD COMMISSION.
Just before the expiration of the term of office of my predecessor, Hon. W. A. Little, he and Judge Allen Fort of the Railroad Commission, argued before Judge Newman of the United States District Court, the case of the Richmond and Danville Railroad Company v8. The Railroad Commissioners, which involved the constitutional power of the Commission to make and establish maximum joint rates for the transportation of freight within this State, over two or more roads, under the act of 1889. Judge Newman reserved his decision for several months, when he, in ~ well considered and able opinion, sustained the

4
Commission and dissolved the injunction which he had' previously granted, restraining the Commission from instituting suits for the recovery of penalties incurred by the Richmond and Danville Railroad Company for violations of the Joint Rate Rule.
UNITED STATES EXPRESS COMPANY VS. RAILROAD COMMISSION.
In the summer of 1892 the United States Express Company filed in the Circuit Conrt of the United States, for the Northern District of Georgia, a bill seeking to enjoin the Railroad Commissioners from any interference with the business of the company, and from any effort to enforce the Tarift Rates and Rules made by the Commission under and by virtue of the powers conft>rred by the act approved October 21, 1891, and from instituting any proceedings against the Express Company for alleged violations of such tariffs and rules. I have filed the answer of the Commissioners to this bill, and will doubtless be able to dispose of the case during the present term of the circuit court.
COUNTY TAXES ON MAIN STEM OF CENTRAL RAILROAD.
The intervention prepared and filed by my predecessor in the United StateR Circuit Court for the Southern District of Georgia to collect county taxes due by the Central Railroad and Banking Company of Georgia on that part of its line known as the ''Main Stem" is still pending, but I expect to secure a hearing sometime this fall. The question presented by this intervention involves a construction of that portion of the charter of the Central Railroad whieh fixes its status as to taxation. This railroad does not deny

5
its liability for county taxes under the act of 1889, except as to the "Maio Stem," which it claims is exempt by .reason of its charter.
COLUER VS. TAX COLLECTOR FULTON COUNTY.
During the summer of 1892 G. W. Collier filed a petition in Fulton superior court, in which he sought to enjoin the collection of the State and county taxes due on the increase made in his tax return for 1892 by the tax assessors .of Fulton county. The sole question presented by this petition was whether the act of 1891, providing for a board of equalization as to property subject to taxation, was constitutional. Upon the hearing of the petition sometime during October of that year, Judge Marshall J. Clarke granted the prayer of petitioner. At the request of the Comptroller-General, I conferred with Col W. S. Thompson, county attorney of Fulton county, who represented the tax collector in this case, and we entered an appeal to the supreme court, where, in December, the case was argued by Messrs. Hillyer & Lee for Colli~r, and Col. Thompson and myself for the tax collector. The supreme court reversed the judgment of the superior court, and fully sustained the constitutionality of the tax assessors' act.
-cOLUMBUS SOUTHERN RAILWAY VS. COMP'rROLLERGENERAL.
The case of the Columbus Southern Railway Company vs. William A. Wright, Comptroller-General, in the United .States Supreme Court, which involves the constitutionality of the act of 1889, providing for county taxation of railroad property, has not yet been reached. Last January, at my suggestion, Ron. Clifford Anderson, who, on account of the

6
sickness of Attorney-General Lester, was employed by your Excellency several years since to represent the State in this case until its final determination, made a motion before the United States Supreme Court to advance the same, on the ground that the question involved was such that the execution of the revenue laws of the State was enjoined. As there were several vacancies on the supreme bench and the term of the court was drawing to a close, at the time the motion was presented, the court refused to adYance the case. The motion will be renewed this fall and the case will doubtless be advanced and a decision reached during December or January next.
It. may not be out of place for me to add that all other railroad companies, and all of the receivers of railroal companies, whether appointed by the Federal or State courts, with one or two exceptions, have recognized the binding force of the decision of our own supreme court in this case.
CITIZENS BANK LITIGATION.
The cases of L. J. Hill and W. S. Thompson, assignees and receivers of the Citizens Bank, against the Atlanta National Bank, and the same plaintiffs against the Gate City National Bank, in Fulton superior court, which were brought about ten years ago to recover money and effectl:l paid to these defendants as preferred creditors by the Citizens Bank on the day it suspended, have been settled, and all proceeds of such settlement paid into the State treasury. It will be remembered that the Citizens Bank at the time of its suspension was a State depository, and as such was largely indebted to the State. These suits were based upon section 4429 of the Code, which provides that all conveyances, assignments, transfers of stock, effects or other contracts made by any bank in contemplation of insolvency,. or after insolvency, except for the benefit of all creditors.

7
and stockholders of the bank, shal1, unless made to an innocent party without knowledge or notice of its condition, be void. The State was directly interested in these suits for the reason that should the receivers recover anything, the proceeds thereof would go to the State as the holder of the first lien on the assets of the bank. There was some question as to whether the defendants were innocent parties without knowledge or notice of the condition of the Citizens Bank at the time the transfers were made, and after investigation and upon the advice of Judge Jno. L. Hopkins and Hon. M. A. Candler, who had so ably and faithfully represented the receivers throughout this tedious litigation, and also of Messrs. Hall & Hammond, who had been employed by Governor Gordon to assist in all the litigation relative to the Citizens Bank, I agreed to a settlement of these cases upon the Atlanta National Bank paying the principal claimed as due by the receivers, onehalf of the interest ~wd all costs, and the Gate City National the principal sum sued for and all costs. By the terms of this settlement there was paid into the treasury from the collection on the Atlanta National Bank the sum of $2,747.70, and from the collection on the Gate City ~ational Bank $14,205.33. There is now due the State by the Citizens Bank a balance of about twenty-one thousand dollars of principal. Of this amount I think it probable that from eight to ten thousand dollars will be collected from proceedings now pending. The remainder of the balance due will be lost to the State unless same be recovered by suit on a certain bond executed by the Citizens Bank shortly before its suspension, and referred to by Hon. Clifford Anderson in his last official report as Attorney-General, and upon which he never deemed it advisable to bring suit for reasons which could not be stated with propriety in a public report, but which he fully explained to previous executives and committees of the General Assembly. For

8
reasons which have since dev.eloped, I am now inclined to advise in favor of suit being .instituted on this bond, and when I collect further information upon this subject, I will communicate with your Excellency relative to the advisability of bringing same.
SINGER MANUFACTURING COMPANY VS. COMPTROLLER-GENERAL.
The Singer Manufacturing Company paid, under protest,
certain fi. fas. which the Comptroller-General had issued
against that company for taxes for 1887 and 1888, amounting to nearly three thousand dollars. Suit was then brought in Fulton superior court by this company against the Sheriff of Fulton county and the Comptroller-General to recover these taxes upon the ground that thesame were levied in violation of both the State and Federal constitutions. This case has not yet been reached, owing to the immense amount of business on the dockets of Fulton Fmperior court, and as it does not come within that class of case8 which may be advanced as provided in section 22(a) of the Code, it may be another year before it will be called for trial. I have thoroughly prepared the case, and when tried, I have Lut little doubt of a judgment being rendered favorable to the State's intere8t.
CRIMINAL CASES IN UNITED STATES SUPREME COURT.
The two criminal cases mentioned in the report of my predecessor are still pending in the United States Supreme Court, and not being such cases as may under the law be advanced as a matter of right upon the docket of that court, they will hardly be reached until some time next

9
year. The case against D. F. Gunn is founded upon an indictment in Houston superior court for a misdemeanor, charging him with a violation of section 4580 of the Code, by hunting on the Sabbath day. Upon being tried, he was fJund guilty, whereupon he appealed to our supreme court, and at the March term, 1892, the judgment of the court below was affirmed. The defendant then sued out a writ .of error to the Supreme Court of Georgia upon the ground that section 4.580 of the Code is violative of the Constitution of the United States.
The other case is against L. F. Hennington, Superinte~d ~mt of the Alabama Great Southern Railroad, which runs through a portion of this State, and is founded upon an indictment in Dade superior court for a mitldemeanor, charging him with a violation of section 4578 of the Code, by running freight trains on the Sabbath day. Upon being convicted he appealed to our supreme court, and at the March term, 1892, the judgment below was affirmed. He then appealed to the Supreme Court of the United States upon the ground that the trains run by him on the Sa.bbath day were engaged iu the transportation of interstate freight, .and that section 4578 of the Code, so far as it relates to the running of freight cars used in hauling interstate freight, is in violation of the Constitution of the United States.
STATE OF GEORGIA V8. UNITED STATES EXPRESS COMPANY.
In 1892 suit was instituted in Floyd superior court against the United States Express Company, a New York company ngaged in transporting goods by express over one or more railroads in this State, to recover the penalty incurred by that company for a violation of the rules and regulations .of the Railroad Commission iu charging for the transporta-

10
tion of matter by express rates in excess of the schedule of rates fixed by the Commission. At the October term, Hl92, of Floyd superior court, the express company presented to the court a petition to remove the suit to the Circuit Court of the United States for the Northern District of Georgia, on the ground and for the reason that the matter and amount in dispute exceeded two thousand dollars, and that the controversy was between citizens of different States, and tendered the usual removal bond. The superior court thereupon granted an order removing the case as prayed for. As soon as I learned of this removal, I prepared and presented to Judge Newman of the United States court a motion to remand the case to Floyd superior court on the following grounds, to-wit:
1st. Because no suit or action in which the State is a party can be removed from a State court to a Federal court on the ground of diverse citizenship under the act of Congress authorizing the removal of cases from a State to a Federal court.
2d. Because the State of Georgia is not a citizen of any State, and therefore diverse citizenship could not exist as to the parties.
3d. Because the suit was an action to recover a penalty, which is criminal in its nature, and not civil, and that such suits are not subject to be removed as civil suits.
After argument upon this question, the court remanded the case to Floyd superior court, basing the decision upon the ground that the State is not a citizen, and therefore nn diverse citizenship existed between the:parties. This decision will doubtless pre\ent the removal of any of the cases of the State in the future whenever such removal is claimed as a right arising from diverse citizenship. After a thorough investigation of the question, I have come to the conclusion that the last ground named above is equally as tena-

11
ble as the otherE>, and should it be so held by the courts, aU similar suits will hereafter be tried in the State courts.
There are seYeral other matters which were pending at. the time of my accession to office, some of which have been disposed of, and others still pending, but as they are ot minor importance, I have thought it unnecessary to encumber this report with a history of same.
LASCELLES VS. THE STATE.
The Supreme Court of the United States, in the case of Lascelles vs. The State of Georgia, settled a very important question so far as the execution of the criminal laws of the State is concerned. Lascelles was indicted, tried and convicted of forgery in Floyd superior cnurt. He had pre-
viously been indicted under the name of- walter S' Beres-
ford for cheating and swindling, and also for larceny aftertrust, and upon these twv last named indictments he was regularly extradited from the State of New York as a fugitive from justice. While in Floyd county jail, where he bad been kept continuously from the time he was placed there under the charges made in these indictments, be was indicted for forgery, and upon his trial for same he raised the point that it was a violation of the Constitution of the United States to try him for any offence except such as may have been charged in the extradition proceedings~ without first allowing him an opportunity to return to the State which bad surrendered him to the authorities of this State. Upon being convicted, he moved for a new trial, which was refused. He then appealed to our supreme court, where, at the October term, l 892, the judgment of the ctmrt below was affirmed. The case was then carried by writ of error to the Supreme Court of the United States, where it was argued last March by Col. W. W. Vandiv~:r

12
for Lascelles, and myself for the Stah~. In the preparation of the brief in this case I had the valuable assistance of Hon. D. B. Hamilton, of Rome, and but for his sudden illness while in Washington, would have had his assistance in the .argument also-these services being render('d by Col. Hamilton without charging the State a fee therefor The question raised in this case had frequently been decided by the courts of last resort in many of the States, and by many of the District and Circuit Courts of the United States-some holding one way and some the other, but the decision of the United States Supreme Court in affirming the judgment of our supreme court settled the question in: favor of the right of the State to try a fugitive for any and all offences, whether they be named in the extradition proceedings or not.
STATE DEPOSITORIES-BANK OF AMERICUS.
Last January the Bank of Americus, one of the State depositories, closed its doors, and upon the petition of several creditors, its assets were placed in the hand of Col. W. A. Dodson, as temporary receiver, by Hon. W. H. Fish, judge of the Superior Court of the Southwestern Circuit. At that time the bank was indebted to the State, as one of the depositories under the act approved October 16th, 1879, and the several acts amendatory thereof, in the sum of $10,0~3.77. As soon as knowledge of the bank's condition was received at the capitol, Hon. R. U. Hardeman, State Treasurer, and I went to Americus to investigate the assets of the bank and to take such steps in the matter as might be necessary to protect the State's interest. After a thorough investigation we came to the conclusion that the assets of the bank which were available at that time, and which would become so within the next sixty days there-

13
after, were sufficient to pay off the State's claim, and that by pursuing a liberal but firm policy we would collect the State's money without protracted litigation, which had heretofore always attendoo such failures. In pursuance of this
line of policy, I prepared and had issued the executive fi. fa., as provided by the act of 1R79, for $10,033.77, with
interest from date of demand, protest fees, etc., and placed same in the hands of the sheriff of Sumter county, with instructions to levy upon certain property of each of the sureties if the same was not paid by a certain date. I then notified the officials of the bank and the sureties of the steps which had been taken in the premises. On the 7th day of April, 1893, the sum of $10,202.87 was collected by me in full of the principal, interest and protest fees and turned over to the State Treasurer.
BRUNSWICK STATE BANK.
Last May the Brunswick State Bank, one of the State depositories, failed and its assets were placed in the hands of E. Brobston as receiver, by Hon. J. L. Sweat, Judge of the Superior Court of the Brunswick Circuit. At the time of its failure this hank was indebted to the State, as one ofthe depositories, in the sum of$30,449.73. Immediately after the failure [ went to Brunswick to investigate the condition of the assets of the bank and from the best information at my command came to the conclusion that probably sufficient money might be realized within the course of a few months to pay off the amount due the State. I took the necessary steps looking to the issuing of an execution against the bank and its sureties, and upon my return to Atlanta prepared and had issued the execution against the bank and sureties for the amount of the deposit, with interest from date of demand. Under ordinary cir-

14
<mmstances the amount due the State could have easily been realized from the assets of this bank within a few weeks, but the failure of two other hanks in that city just a few <lays bef(lre the Brunswick State Ban)i: failed caused great financial stringency in that section of the State. The bond {)f the Brunswick State Bank as a depository is beyond all question ample security for a sum much larger than that due the State, as the real estate owned by the sureties is worth three or four times that sum, it having been returned by them for taxation in 1892 at about $125,000. Most of these sureties being depositors in one or more of the Brunswick banks which had failed, and having thereby sustained heavy losses of available cash, and it being practically an impossibility for them to raise in cash the amount due on the bond, after consultation with your Excellency and the State Treasurer, I decided, inasmuch as the State was amply protected by a first lien on the property of the sureties and so mnch of that property being real estate, not to levy immediately upon the sureties and attempt to force at once the collection of the amount due the State. To have levied upon the sureties at that time would have either resulted in the sacrifice of their property at sheriff's sale, or in long .and tedious litigation. I therefore notified the sureties if they would join me in an effort to have the money realized on the assets of the bank paid over on the State's claim as fast as same was collected by the receiver, I would withhold levy for several months. with this in view, Hon.
w. G. Brantley, attorney for the sureties, joinAd me in an
intervening petition to Judge Sweat for an order directing the receiver to pay over to the State all money then on hand and all money collected by him from the assets or securities belonging to the bank as soon as same came into his hands. On July lOth, 1893, Judge Sweat granted the order as prayed for, and in pursuance of the same the receiver has made the following payments into the State

15
treasury, to-wit: July 24th, $4,000, and August 19th, 1893, $1,000. The yellow fever becoming epidemic in Brunswick about the time of the last payment, all business was of course suspended, with no prospect of resumption prior to December lBt. But for this epidemic doubtless the receiver would have by this time realized enough from the assets of the bank to have settled the State's claim, and had he not Hncceeded in so doing, I would have caused the ex-ecution to have been levied upon the property of the sureties for the balance. I expected and intended to cause the f'xecution to be levied about the first of October, should the claim then remain unpaid, but it occurred to me, at that time, in view of existing circumstances, that such a course would have been an act of cruelty, and for that reason refrained from having the levy made. I have no doubt of -collecting the balance due, with interest, within the next three or four months.
RAILROAD 'fAXES.
During the last year the Comptroller-General has placed
in my hands for collection fl. Ja8. for State taxes for 1892
against the following railroads, to-wit: The Central System, Chattanooga Southern, Marietta and .North Georgia, East and West, Macon and Birmingham, Georgia, Southern and Florida, .Macon and Atlantic, Savannah, Americus and Montgomery, and Abbeville and Waycross. These roads are in the hands of receivers, appointed either by the State or Federal courts, and therefore no levies could be made upon their respective properties. In most cas!'s I have applied for and obtained an order from the court appointing the receiver directing the payment of taxes, but in many instances the receivers have failed to comply with these orders, alleging a lack of funds on account of receipts

16
not being sufficient to meet operating expenses as their excuse for such failure. I have succeeded in collecting some
of these fi. fas., and note same in the itemized statement of
collections given below. There being a large number of counties and towns in the
State holding claims for unpaid taxes against the Central Railroad, many of which having employed no attorney to collect same, and some action being necessary to protect these counties and towns in the event of the sale of the pro'perty of this railroad under order of the court, at the suggestion of your Excellency, I prepared and presented to the United States Circuit Court for the Southern District of Georgia, at the hearing of the Central Railroad ease before Justice Jackson and .Judge Speer, in Savannah last J nne, a petition in the name of the Comptroller-General in behalf of all the counties, cities and towns of this State which held claims for county or municipal taxes against the Central Railroad, praying that in any and all decrees made by the. court providing for the sale of the property of the Cwtral Railroad, and of its leased, controlled and operated lines within this State, the receivers or commissioners making such sale, or sales, be ordered to pay all taxes, whether State, county or municipal, which may be due at the time of such sale. The court granted the order as prayed for, and by its terms the various towns and counties interested are fully protected, and if not sooner collected upon separate intenentions filed by each county or town in its own behalf, all taxes, with interest, will be paid when the property of the railroad is sold.
While upon this subject it may not be out of place for me to say that there existR no reason why the property of corporations and individuals in the hands of receivers should not pay its portion of the public burden at the same time as the property of corporations and inclividuab not in the hands of receivers is required und~r the law to pay,

17
else be subject to levy and sale under tax fi. Jas. I there-
fore respectfully suggest that the law be so changed as to allow the collection of State, county and municipal taxes on property in the hands of receivers under order of court in the same manner as if the property remained in possession of the individual or corporation.

WESTERN AND ATLANTIC RAILROAD.

I have had submitted to me by the lessees of the West-

ern and Atlantic Railroad certain lea;;,es of lands in the city

of Chattanooga to the Southern Express Company, one

parcel being the "triangle lot," and another a lot fronting

on Ninth street, occupied by the old Southern Express

building. After an examination of these instruments, I

find by their terms that the title of the State is fully rec-

ognized and protected, and therefore under the provisions

of the eleventh section of the lease act, I have approved

the same.

.

The report filed by Hon W. A. Little, the special attor-

ney appointed under the act of the General Assembly, goes

into all the details concerning the property connected with

the Western and Atlantic Railroad. The report is very

full and voluminous, and exhibits much research and labor.

The information and maps furnished cannot fail to be of

great service to the State now and in the future in reference

to this valuable property. It will be noticed that many

suits have been brought in the various counties along the

line of road, and are now pending, affecting particular par-

cels of property, and that quite a number of questions af-

fecting rights of property have been referred, upon which,

in consequence of opposing equities, extreme hardship to

occupants, or other reasons therein given, it is desired that

~

18
legislative action be had. The special attorney has from time to time reported to your Excellency the details and progress of the work, and submitt('d the line of action in reference to particular cases which appear in his report. In connection with your Excellency, I have approved the action stated in the cases specified.
The matters treated of in this report are such as have not come under the official duties of any officer heretofore connected with the State government, and the condition of this valuable property as therein detailed shows the wisdom of the act authorizing this appointment. The able and efficient manner in which the duties imposed by this act have been discharged reflects great credit upon the special attorney.
RAILROAD COMMISSIO:X CASES.
At the request of the Commis~;ion I have prepared a number of suits against certain railroads to recoYer the penalty prescribed by law for violations of the Joint. Rate Rule established under authority of the act of 188H, and will file same as soon as practicable. The fact that a large number of the railroads in this State are insolvent, and in the hand of receivers, and it being doubtful whether the penalty prescribed by law f<n a violation of the ruleH and regulations of the Comn1ission could be collected from an insolvent railroad under the law as it now stands, causes me to respectfully suggest snch a change in the lien laws as would give judgments in favor of the State for penalties priority over all other claims except for taxes.
CRIMINAL CASES IN SUPREME COURT.
During the p:;tst twelve months I have, in obedience to
of the requirements the Constitution, argued orally or by

19
brief, twenty-four capital cases in the Supreme Court of the State, and, at the request of the Comptroller-General, a criminal case from the city court of Atlanta arising unde< the act of 1887 regulating the business of insurance in this State.

COLLECTIONS FOR THE STATE.

The amounts named below have been collected during the last year from the sources indicated, and paid into the treasury of the State, to-wit:

From city of Chattanooga for condemnation of

some of the State's property for street pur-

poses, as mentioned in the report of my prede-
cessor ... ________ .- _______ __ ... ________ $ 925 00

From Citizens Bank cases _______________ _ 16,953 03

From Bank or Americus __________ . _________ _ 10,202 87

From Brunswick State Bank ________ _

.5,000 00

From Abbeville aud waycross Railroad ___ _ 393 91

From East and vVest Railroad ____________ . __ 1,363 82

From Georgia, Southern and Florida Railroad_ 2,000 00

TotaL ____________ -------------$:36,838 63

Since assuming the duties of this office I have furnished your Excellency and the different Departments of State about thirty official opinions in writing, and a much larger number orally. I herewith attach an appendix of such of the written opinions as I deem of general interest, or which involve questions likely to arise in the future.
Very respectfully, J. M. TERRELL, Attorney-General.

APPENDIX.
INDEX TO OPINIONS OF ATTORNEY-GENERAL J. M. TERRELL.
TO THE GOVERNOR.
PAGE
Appointment of Judge of County Court of Jefferson County...... 23 Appointment of Juilge of County Court of Appling County. Sec-
tion 279 of Code construed...... .. .. .. .. .. .... ... ...... ....... .. .. .. .. .... 26 Appointment of Judge of County Court of Scriven County.
When authorized to qualify and assume the duties of his office. What constitutes vacancy...................................... 28 Commissions. When authorized to withhold or recall in case of contest.......................... .......................... ..................... 30 Constitutionality of Act amendatory of Act approved August 26th, 1889, creating Board of Commissioners of Roads and Revenues, Thomas County................................................ 34 Election Returns. Irregularities. Effect of. when Commission should issue ........................... ,... .. ....... .. .. .. .. .. .. .. .. .... 37 Rewards. 'Vhen unauthorized to pay.... .. ... ... ... ... ... ... ... ... ... ... 40 Vacancies in Board of County Commissioners of Elbert County. How filled................................................ ................. ..... 42
TO THE SECRETARY OF STATE.
Bank Charters. Renewal of................................................... 44 Building and Loan Associations. How defined. Law regulating 45 Lists of voters. Not subject to public inspection. Section 83 of
the Code construed........................................................... 48 Railroad Charters. When granted. Application of Act ap-
proved December 17th, 1892............. ..... ............... ............ 53
TO THE STATE TREASURER.
Building and Loan Associations. Withdrawal of securities deposited with the State after having ceased to do business outside of the State not allowed........................................ 54
. TO THE KEEPER OF PUBLIC BUILDINGS.
Public .Buildings. Insurance of. Technological School Buildings included.. .... .. .... .. .... ................... .......... ......... ......... ......... 57

STATE OF GEORGIA, ATTORNEY-GENERAL's OFFicE,
ATLANTA, GA., January 14, 1893.
His Excellency W. J. Northen, Governor, Atlanta, Ga. :
SIR-In reply to your request. for an opinion as to whether or not the act approved December 9, 1892, entitled "An act to repeal an act to abolish the county court of Jefferson county, and for other purposes," approved September 19, 1889, imposes upon you the duty of appointing a judge of the county court of .Jefferson county before the recommendation of the grand jury thereof for such appointment, I beg leave to submit the following :
Section 1 of the original County Court Act, approved January 19, 1872, which is usually referred to as Uo!e general county court law, and embraced in chapter 4, title 5, part 1 of the .Code, contains the following proviso, to-wit : " Provided, however, that the law of this chapter shall not take effect so as to allow a county judge to he appointed for any county until the grand jury thereof shall by a majority so recommend." Georgia Code, section 279. The county of Jefferson, together with a number of other counties, was excepted from the operation of this law, See acts of 1871-2, page 289. This law was amended by an act ap:. proved Februar); 27, 1875, with the following title: "An act to alter and amend an act entitled an act to create a county court in each county of the State of Georgia, except certain countieb therein mentioned," approved January 19, 1872, so as to include the county of Jefferson in said act

24
and the amendments thereto." See acts of 1875, page 53. Section 2 of this act contains the following clause: "And provided further that this act shall go into effect in said county immediately after its passage, and the Governor be and he is, hereby authorized to appoint a county judge for said county without the recommendation of the grand jury." By an act approved September 19, 1889, the county court of Jefferson county was abolished. See Acts of 1889, page 1157. The effect of the act of 1892, repealing the act of 1889, 1was to revive the act of 1875. "A statute repealing a former btatute being itself repealed, the first statute is revived." See 1 Kelly, page 32. This being the case, the only question remaining is whether or not the act of 187 5 requires the appointment of a judge without the recommendation of the grand jury. Paragraph 5, section 4 of the third article of the Constitution of 1868 declares: "Nor shall any la\v or ordinance pa~s which refers to more than one subject-matter, or contains matter different from what is expreRsed in the title thereof." The proviso to the second section of the act of 1875 ai1thorizes the appointment of a judge without a recommendation of the grand jury. The title of the art says that it is an act to alter and amend an act entitled an act to create a county court in each county of the State of Georgia, except certain counties therein mentioned, approved January 19, 1872, eo as to include the county of Jefferson in said act a~d amendments thereto.
The proviso seeks to take the county of Jefferson from .under the act of 1872 and amendments thereto so far as the appointment of the judge is concerned, without making any reference thereto in the title. The proviso contains matter not only different from what is expressed in the title, but matter absolutely repugnant to the title, and is, therefore, null and void. This being the case, the conclusion is inevitable that the act of 1892 does not impose upon you the

25
duty of appointing a judge for; the county court of Jefferson until the grand jury thereof, by a majority vote, so recommend.
I am aware of the practical construction given the act of 1875 by your Excellency's predecessors in appointing a judge for the county court of Jefferson county without a recommendation, and it is probable that, should you follow this precedent, your appointee would be a de facto judge, and, if so, his acts would be legal.
Very respectfully, J. M. TERRipLL, Attorney-General.

AT'.I'OR~EY-GENERAL'S OFFICE,
krLANTA, GA., July 6, 1893.
To Hi8 Excellency, W. J. Northen, Governor, Atlanta, G.:
DEAR Sm-I am in. receipt of your request for an
. opinion relative to the appointment of a County J ndge for
Appling County, and, in reply, beg to submit the following:
At the March adjourned term 1893 of Appling superior court, held last J nne, the grand jury recommended ''that a county court for this county be established." By an act approved September 1st, 18!:11, the county court of Appling county was abolished. Georgia Laws, 1890-91, Vol 2, page 949. The court thus abolished was that established by the County Court Acts of 1872 and 1879, and codified as section 279 et 8eq. of the Code of 1882.
-While the act of 18~H, abolishing the county court of Appling is not a general, bnt a special law, yet it unquestionably repeals section 279 of the Code so far as Appling county is concerned. This section is not a general law so far as relates to the establishment of county courts, inasmuch as it excepts by name the county of Walton. 87 Ga. 444. This being true, a special act abolishing a county court established under this section of the Code is not unconstitutional.
The passage of this Act of 1891 virtually left Appling county in the same position as that occupied by Walton county, and, in my opinion, the recommendation of the grand jury does not impose upon you the duty of appoint-

27
ing a judge, for until the Legislature by law establishes a county court for Appling county, or repeals the abolishing act of 1891, there can be no county court in that county.
Respectfully submitted, J. M. TERRELL, Attorney-General.

A'l'TORNEY-GENERAL'S OFFICE,
ATLANTA, GA., September 7, 1893.
Ris Excellency, W. J. Northen, Governor, Atlanta, Ga.:
DEAR Sm-In compliance with your request to furnish an opinion on the question raised in a letter from Messrs. Dell & 'Vade and Oliver & Overstreet, of Sylvania, Ga., as to whether Hon. H. C. Kittles, who was lately appointed Judge of the County Court of Screven county by your Excellency, vice Judge W. L. Matthews, whose term of office expired September 6th, 1893, is authorized by law to
qualify and assume the duties of his office before his ap-
pointment has been confirmed by the Senate, I beg to submit the following:
Section 279 of the Code provides that the Governor, by and with the advice and consent of the Senate, shall appoint a county judge, whose term of office is four years, and to continue in office until his successor is appointed, commissioned and qualified in the same way.
Section 280 of the Code authorizes the Governor, if any vacancy arises from any cause in the office of county judge, to fill the same as in case of judges of the superior court, and directs that such appointments be submitted for confirmation to the Senate when that body assembles.
From the sections of the Code above referred to it will be seen that, unless there is a vacancy, the appointment must be confirmed by the Senate before the appointee is authorized to qualify and assume the duties of his office, hence the first question that presents itself is, whether there is a vacancy in the office of the county judge of

29

Screven county. A vacancy exists when there is no per-

son lawfully authorized to then assume and exercise the

functions of the office. As was said by the court, in 3d

American State Report, 663, "the word 'vacancy' as ap-

plied to an office has no technical meaning. An office is

not vacant so long as it is supplied, in the manner pro-

vided by the Constitution or law, with an incumbent who

is legally qualified to exercise the powers and perform the

duties which pertain to it, and, conversely, it is vacant in

the eye of the law whenever it is unoccupied by a legally

qualified incumbent who has a lawful right to continue

therein until the happening of some future event." Where

an incumbent of an office, appointed by the Executive, by

and with the consent of the Senate, is, by law, entitled to

hold over until his successor is appointed and qualified, the

failure or neglect to appoint his successor does not create

such a vacancy as is authorized to be filled by the Execu-

tive alone, there being a person authorized by law to con-

tinue to exercise the dut4es and functions of the office until

a successor, duly appointed and qualified, appears to as-

sume it. This proposition is supported by Mechem on

Public Offices and Officers, section 129, and also by

the Supreme Court of Ohio in a case involving the same

question as the one here presented. See 18th American

Report, 321.

I am, therefore, of the opinion that no such vacancy ex-

ists in the judgeship of the county court of Screven county

as is contemplated by section 280 of the Code, which au-

thorizes the appointment and qualification of a judge with-

out the advice of the Senate. Such being the case, I think

that Judge W. L. Matthews is entitled to exercise the

functions of that office until J;,he appointment of Hon. H. C. Kittles has been confirmed by the Senate, and he has

duly qualified.

Respectfully,

J. M. TERRELL, Attorney-General.

ATTORNEY-GENERAL's OFFICE,
ATLANTA, GA., January 19, 1893.
Hon. TV. J. Northen, Governor, Atlanta, Ga.:
DEAR Sm-I am in receipt of your request for my opinion as to whether you have the authority to recall a commission to an officer-elect which has been signed by yon and forwarded together with a dedimus potestatem to an officer authorized to administer oaths, before the officerelect has taken the oath and received the commission from the hands of the officer to whom the dedimus was directed, or order such commission withheld; and if so, whether you should recall same, or order it withheld, when notice of an intention to contest the election of such officer-elect has been received by you.
Section 60 of the Code provides that the Governor shall grant commissio,ns to all such officers of this Stat~ as are reqnired to hold them, and in all cases he may in his discretion, issue a dedinms potesta.tent to such officers as are authorized to administer oaths requiring the qualification of an officer-elect, as provided by law, and to issue him his commlSSlOn.
Section 134 of the Code prescribes that all civil officers of the State or county shall be commissioned under the seal of the Executive Department, signed by the Governor and eountersigned by one of his secretaries.
Section 1329 of the Code provides that when the Governor has notice of the intention to contest, he shall not issue a commission until the contest is decided, or the time has elapsed for it to begin, and that no proceeding can be begun

31
to contest an election after the Governor has issued his commission.
Section 3 of the act approved October 16th, 1891, providing for the filing, hearing and determining contested elections in this State, provides that the person so contesting shall give notice, as now required by law, and he shall also mail a written request to the Governor to withhold the commission from the person returned as elected, until the proposed contest shall be determined. Previous to the passage of this act, all ca8es of conte~ted electim~ where the officers were required to hold a commission, were heard and determined by the Governor, but now such cases are heard and determined by the judge of the superior court of the circuit wherein the contest may arise.
A commission to an officer is an evidence of his election or appointment, as the case may be, and qualification, and should only be issued to a person when he has been elected or appointed and qualified, that is, taken the oath of office requireJ by law. An officer-elect has no right to a commission until he takes the oath of office; that is as essentral as his election. This oath must be taken before you, or before an officer authorized to administer oaths, to whom you may have issued a dedimu,s potestatem, as proYided in section 60 of the Code, and until this is done you have no authority to issue a commission. \Vhen this oath is taken, you are directed to issue a commission, provided you have no notice of an intention to contest. In such event, you are directed by section 1;329 of the Code not to issue a commission until the contest is decided, or the time has elapsed for it to begin.
In my opinion, you have the same right to recall, or order withheld, a commission which has been signed by you and forwarded, together with a dedimus, to an authorized officer, before the officer-elect has taken the oath, as you would have to withhold it were you personally in possession of the

32
commission, or if the same had not been signed by you. In other words, I do not think that it would be a commission ur;.til the oath had been taken and the commission delivered by you or your authorized agent, the officer to whom the dedimus was directed, and accepted by the person to whom it was issued. In the case of Grubb et al. vs. Bullock,, Governor, 44 Ga. 379, the supreme court held that the delivery and acceptance of a pardon was necessary. Surely stronger rea~ons could be given for the necessity of the delivery and acceptance of a commission than for a pardon.
The fact that you may have signed the paper which would become a commission when certain requirements have been complied with, does not make it a commission until those requirements are met, and the delivery of such paper, together with a dedirnns, to an authorized officer does not make it a commission ; neither does it take from yon the right of controlling the paper, provided you reach your agent before he exe(mtes the trust, that is before he qualifies the officer-elect and delivers the commission. The deairnus yon i;;;sue is a naked power, one coupled with no interest whatever to the officer to whom it is directed. Such powers are subject always to revocation. As you have the right to revoke a dedimus, you most certainly haye the right to order the execution of it withheld.
The issuing of the commission to an officer is the last act required of you, and that cannot be done until such officer is elected and qualified. Section 1329 of the Code directs that no commission be issued until the contest is decided, or the time has elapsed for it to begin, provided you have received notice of an intPntion to contest. I understand that to mean if you receive notice of an intention to contest before you have performed the last act, viz., issued the commission, you are directed to withhold the same until the contest is decided, or the time for it to begin has elapsed.
A contest is virtually an appeal from the finding of the

33
imperintendents of an election in consolidating the returns to the superior court, and if you receive notice of an intention to make such an appeal, you are directed to delay carrying into execution the finding 9f the superintendents. As a matter of fact known to every one acquainted with the splendid system in operation in the office of the Secretary of State and in the executive office for ascertaining the result of an election, as appears from the certificate of the superintendents accompanying the returns, it is but an hour or two from the receipt of the returns by the Secretary of State until the name of the officer-elect is furnished you, and your dedimus issued and mailed to some proper officer authorizing him to qualify the officer-elect and deliver the accompanying commission; hence, if you do not recall the commission, or order the same withheld (provided it had not been delivered), no person would have but one or two hours' time to determine whether or not he would enter such an appeal, that is, to make a contest. This is contrary to the spirit of our laws. A person has four days, not counting Sundays, in which to decide whether be will appeal from the decision of 11. magistrate to the superior court, and thirty days in which to decide whether he will appeal from the decision of the superior court to the supreme court. Therefore, I think it would be proper, upon the receipt of a notice of an intention to contest, for you to order the officer to whom you may have issued the dedimus, to withhold the commission until further directed by you, or order the same returned to you to await the termination of the con.test proceedings before the judge of the superior court, or the expiration of the time for such proceedings to be commenced.
Very truly yours, J. M. TERRELL, Attorney-General.
3

ATTORNEY GENERAL's OFFICE,
ATLANTA, GA., April 14, 1883.
Hi8 Excellency, TV. J. Northern, Governor, Atlanta, Ga.:
DEAR Sm-I am in receipt of your request to furnish , an opinion on the question raised in a letter from Judge A. H. Hansell as to the constitutionality of the act amending the act creating a Board of Commi~sioners of Roads and Revenues for Thomas county by providing for their election by the grand jury, approved August 26th, 188.9.
The act creating the Board of Commissioners of Thomas county, approved February 20th, 1873, prescribed that said board should consist of five persons, to hold office four years from January 1st, 1873, and by section 6 of this act it was made the duty of the Governor to appoint and commission these five persons. By an act approved February 13th, 1877, this original act was amended so as to make it the duty of the Governor to appoint and commission five suitable persons to serve as members of said board until the first day of February, 1881, or until their successors were commissioned and qualified, and fixed four years as the term of subsequent appointments. The act of 1889 provides for the election of commissioners by the grand jury, fixes the term at five years and directs that the grand jury in set>siou next preceding the expiration of the terms of the then incumbents should elect their successors, and upon failure to do so, then any succeeding grand jury. This act of 1889 is objected to because it does not mention the act of 1877. I do not think that this objection amounts

to anything. The foundation act is that of 1873, and it is only necessary to mention that one.
Tbe act of 1889 is also objected to because of its supposed repugnancy to paragraph 17, section 7, article 3 of the constitution, which reads as follows: "No law or sec-
tion of the Code shall be amended or1repealed by mere
reference to its title or to the number of the section of the Code, but the amending or repealing act shall distinctly describe the law to be amended or repealed,as well as the alteration to be made." The title of the act of 1889 is as follows: "An act to amend an act, approved February 20th, 1873, creating a Board of County Commissioners of Roads and Revenues for the counties of Camden, Thomas and. Echols, so as to have the commissioners of Thomas county elected by the grand jury, to prescribe their terms of office and when the terms of the present board shall expire, to confer additional powers, and for other purposes." It is true the body of the act does not mention the act of 1873, but the title of an act should lw considered as part of the act. Cooley Con. Lim. 169. U nde.r our constitution the title is made a very necessary part, as; it is declared in that instrument that no law or ordinance shall pass which "contains matter different from what is expressed in the title thereof." Paragraph 8, section 7, article 3. Considering the title as part of this act, then it is certainly broad enough to meet the above recited raragraph of the constitution, so far as the same relates to describing the law to be amended. That part of this paragraph relative to the alteration made in the old Ia w is complied with in letter and spirit~if the act amended is set forth and published as amended. Cooley Con. Lim. 182. The body of the act of 1889 provides that from and after its passage the county commissioners of Thomas county shall be elected by the grand jury, prescribes their

36
terms, etc. I am, therefore, inclined to think that the law to be amended, viz., the act of 1873, is not only sufficiently described, but the alteration made is also sufficiently set forth. Even if it is a doubtful question, the doubt should be resolved in favor of the constitutionality of the act. 76 Ga., 269, and the authorities cited.
The original act of 1873, the amendment of 1877 and the amendment of 1889 make it. the duty of the Governor to commission the members of the board. There can thPn be no question but that the commi~sion should be issued by the Governor. Assuming then that a proper construction of these acts leaves the question doubtful as to whethPr the Govornor should appoint or the grand jury elect, I submit that the election of the commissioners by the grand jury and the issuing of the commissions to the same perROllS by the Governor would unquestionably, in law, amount to an executive appointment.
In my opinion, since the passage of the act of 1~89, it is not the duty of the Governor to appoint these eommissioners, hut the duty of the grand jury to elect them in the manner prescribed by that act.
Respectfully submitted, J. M. TERRELL, Attorney-General.

ATTORNEY-GENERAL'S 0FFTCE,
A'rLANTA, GA.
Hon. TV. J. Northen, Governor, Atlanta, Ga. :
DEAR Sm-I am in receipt of yours, referring to me the returns of an election for Justice of the Peace in the 55th District G. M., of Johnson county, and affidavits relative thereto, and requesting an opinion as to whether yon should issue a commission to H. J. Kight, and in reply beg to submit the following:
It appears that on the 7th day of January, 1893, the eleGtion was regularly and properly held at Kight precinct, 55th District G. M. of .Johnson county, by J. M. Anderson, J. D. Rowland and E. S. Fortner, all being freeholders; that the ballots were counted and the result found to be as follows: H~ J. Kight received sixty-two (62) votes, and J. E. Meadows received thirty-four (34) votes; that before the managers prepared and signed the certificate as to the result, the papers containing the oaths of the managers, tally sheets and list of voters were stolen or destroyed, but the ballots were preserved ; that two of the managers, viz., .J. M. Anderson and J. D. Rowland, make return of said dection by returning the ballots and certifying the result to be as above stated, but fail to enclose therewith a list of voters and tally sheets for the reason above indicated, and that E. S. Fortner, the remaining manager, refused to join the others in making this return and certifying the result.
Section 1334 of the Code declares that "no election shall be defeated for non-compliance with the requirements of the

38
law, if held at the proper time and place by persons qualified to hold them, if it is not shown that by non-compliance the result is different from what it would have been had there been proper compliance." From the above statement of facts it will be seen that election was held at the proper time and place by persons qualified to hold it, hence the election should not be defeated on the ground that the oaths, tally sheets and list of voters have been. destroyed, lost or stolen. I cannot see how the presence of such papers could affect the result. If it was contended that the result of the election was not as certified, the ballots would show the truthfulness of such contention.
The keeping and preserving the oaths, list of voters and tally sheets are only ministerial duties, and to permit the loss or destruction of such papers to defeat an election would be a travesty on the system of voting by ballot~ which system is the foundation of our form of government. The ballots cast by citizens entitled to vote determine the election and not the list of voters, tally sheets, or even the certificate of the managers as to the result. As was well said by the court in 10 Minn. 107: "If the votes of the citizens are freely and fairly deposited at the time and place designated by law, the intent and design of the election are accomplished. It is the will of the electors thus expressed that gives the right to the office or determines the question suLmitted, and the failure of the officers to perform a mere ministerial duty in relation to the election cannot invalidate it."
If the managers fail or refuse to make return of the election, or certify the result thereof, they could, by riwndamu8 proceedings, be forced to do their duty. Such proceedings in this case would be unnecessary, as a majority of the managers have performed the duty required by law, and made as full a return as it is within their power to make. Sub-section 5 of section 4 of the Code provides that: "A

joint authority given to any number of persons or officers

may be executed by a majority of them, unless otherwise

declared." This certainly is applicable to election mana-

gers as well as any other officers. It was held in 17 Fla.

29, that a eertificate signed by a majority of a board of

precinct inspectors of election, showing the vote cast at

such precinct, was a valid return of the election, and the

omission or refusal of one of the three acting inspectors, who

refused to join the other two inspectors in signing the re-

turn, was not even an inegularity in the return.

I am, therefore, clearly of the opinion that the return

shows beyond question that H. J. Kight was duly elected

Justice of the Peace of the 55th District G. M. of Johnson

county, and that a commission should be issued to him.

Yours truly,

J. M. TERRELL,

Attorney-GeneraL

STATE OF GEORGIA,
ATTORNEY-GENERAL'S OFFICE,
ATLANTA, GA., July 18, 1893.
Hon. W. J. Northern, Goternor, Atlanta, Ga.:
DEAR Sm-Yours of 14th instant,. enclosing letter of of Mr. R. W. Massey, relative to the reward offered for the arrest and delivery to the sheriff of Elbert county, of the person guilty of burning the barn and stables of A. P. Deadwyler, in March, 1892, with proof to convict, bas been received, and in reply submit the following:
It appears that one Dave Moon was charged with and arrested for this crime before the reward was published, and was afterwards tried 11.nd convicted. A motion for a new trial was then made, and while this motion was pending Moon escaped jail and is now a fugitive from justice. Un.O.er the law, as laid down by the supreme court in the case Qf Gentry vs. the State, decided July 3d, 1892, this motion for a new trial should now be dismissed, and when dismissed, Moon will stand convicted and under sentence. Had the arrest been made after the publication of the reward and in view of the reward, the person so arresting would have been entitled to it. This being the case, it necessarily- follows that the person arresting him after conviction and his escape from jail, would not be entitled to the reward.
You ask: "What does the expression ' with proof to <!onvict' mean? Does it mean that the party arresting must furnish the proof that leads to conviction, or that the

41

party who was arrested is convicted ? " I do not think it

is necessary for a conviction to be had in every case before

the payment of the reward. If the person arrested should

die before trial, the party who arrested and charged him with

crime, upon producing satisfactory evidence going to show

that conviction would have followed but for this act of Provi-

dence, should be paid the reward. I might cite other in-

stances, but deem this suffiicient. Unless some such special

reason as given above exists, I do not think a reward should

be paid until after conviction. The practical application

of the term "with proof to convict," in my opinion,

should be such as to require the party arresting to furnish

the proof that leads to conviction and terminates in con-

viction, unless such a conviction is prevented by an acci-

dent of some kind.

Yours very truly,

J. M. TERRELL.

Attorney-General.

ATTORNEY-GENERAL's OFFICE,
ATLANTA, GA., September 6, 1893.
His Excellency, lV. J. No1'then, Governor, Atlanta, Ga.:
DEAR SIR-I am in receipt of your request for my opinion as to whether the law imposes upon you the duty of filling vacancies in the Board of County Commissioners of Elbert County, and, in reply, beg leave to submit the following:
Both the Constitution and Code provide that the Governor shall fill all vacancies in any office, unless otherwise prescribed by law. Art. 5, par. 14 of the Constitution, and sec. 69 of the Code.
By an act, approved February 27, 1875, a Board of Commissioners of Elbert County was ereated, and certain rights and duties were conferred up,on such board. Therefore~ the position as commissioner of Elbert county is an office,. and, in the event of a vacancy therein, the Governor should. fill same, unlesf' the law prescribes otherwise.
The act of 1875, above referred to, has never been amended, except so as to allow compensation and a clerk for the board; hence, if this act does not provide for filling vacancies which may occur in the board, such must be filled by executive appointment. Upon the subject of vacancies the act is silent. The last clause of section 2 provides that "all the provisions of the election laws shall apply to them as to other county officers." I do not think that this has reference to the filling of vacancies in county offices, for there are no general provisions of any election law provid-

43
ing for the filling of vacancies in county officies but on the contrary, there are special laws providing for the filling of vacancies in each of these offices. \Vhilst in most cases the manner of filling vacancies in county offices is similar, a special provision is made, by law, for each office. This clause has reference alone to the manner of conducting the election, qualification of voters, returns, etc. Hence, in my opinion, it would be the duty of the executive to fill, by appointment, all vacancies that may arise upon said board, until the Legislature otherwise prescribes.
Respectfully, J. M. Terrell, Attorney-General.

ATTORNEY-GENERAL'S 0FI<'ICE,
ATLANTA, GA., November 20, 1892.
Hon. Philip Cook, Secretary of State, City :
Sm-I am in receipt of yours of the 9th instant, requesting an opinion as to an application to renew a bank charter now before you, and submit the following in reply: An amendment to the constitution, ratified and adopted at the general election last October, provided that "all corporate powers and privileges to banking, insurance, railroad, canal, navigation, express and telegraph companies shall be issued and granted by the Secretary of State in such manner as shall be prescribed by law,'' etc. An act approved October 21st, 1891, providing for the granting of bank charters by theSecretary of State, prescrib~s that such application for charter under the same "shall be made to the Secretary of State and be accompanied with a fee of fifty dollars, 'vhich shall be paid, on the filing of the application, into the Treasury, and the Secretary of State shall not issue any license or charter before the payment of said fee." When these provisions are complied with, you are authorized to grant a charter to the applicants, which charter vests in them only the rights and priYileges mentioned in said acts.
The act of October 21st, 1891, contains no provision for a renewal of any existing bank charters, but merely provides for the granting of charters by the Secretary of State, whenever the conditions therein named have been complied with by the applicants. Very respectfully,
.J. M. TERRELL, Attorney-General.

A'l'TORSEY-GEXERAL'r-; OFFICE,
ATLANTA, GA., December 1, 1892.
Hon. Philip Cook, Secretmy of State, Atlanta, Ga.:
DEAR SIR-Yours of 30th ult., enclosing a prospectus of the National Benefit Trust, Limited, and asking whether it is one of the societies, organizations or associations which is intended to be included in the fifth section of the act of October 19th, 1891, has been received, and, iu reply, I submit the following:
The prospectus states that this trust was formed for the following purposes:.
1st. To enable tenants to become their own landlords by the payment of small subseriptions, amounting to less than they would pay as rent.
2d. To render greater facilities to small investors to beeome the owners of houses, property, land and seeurities generally.
3d. To provide capital for business and other purposes. -!th. To enable members to make provisions for old age. 5th. To provide endowments for ehildren. 6th. To eombine the advantages of a savings bank and building soeiety, and to eneourage habits of thrift and economy. It also proposes to have open drawings on the fourth Tuesday in each month, in which all members holding bonds are allowed to participate. The act of October 19th, 1&91, regulating the business

46
of building and loan associations heretofore and hereafter
incorporated under the laws of this State which do business outside of this State, and also building and loan associations organized under the laws of any other State, territory or foreign government which do business in this State, requiring a deposit of said associations of seventy-five per cent. of all their securities with the State Treasurer, one of the State depositories, or some trust company, in trust for all their members and creditors, etc., provides in section 5 that the name "building and loan associations," as used in said act, "shall include all corporations, societies, organizations or associations doing a savings and loan or investment business on the building society plan, viz.: loaning its funds to its members, whether issuing certificates of stock which mature at a time fixed in advance or not."
This trust proposes doing a loan business by lending money to its members; also an investment business by providing for small investors to become owners of land and securities generally, and capital for business purposes; also a savings bu:;iness by enabling members to make provisions for old age and provide endowments for children. It, therefore, is an organization doing a savings and loan or in.vestment business on the building society plan, viz.: lending its funds to its members, and must comply with the provisions of the above named act before it is authorized to do business in this State. The fact that the trust proposes to have monthly drawings in which the bonds participate, would not, in my opinion, relieve it of the duties imposed by said act upon building and loan associations.
The intention of this act is to proteet the public from irresponsible organizations or associations, and to protect the. members and creditors of building and loan associations by requiring a deposit of its securities. TherefiJre, all corporations, societies or organizations engaged in doing a sav-

47

ings and loan or investment business, should be held to a

strict compliance with the provisions of the same looking

to that end.

Very respectfully,

J. M. TERRELL,

Attorney-General.

ATTORNEY-GENERAL'S OFFICE,
ATLAN'.rA, GA., January 25, 1893.
Hon. Phillip Cook, Secretary of State, Atlanta, Ga :
Sm-I received several days ago, your request for my opinion as to whether it was your duty to furnish all applicants copies of lists of voters on file in your office, and submit the following in reply.
Section 83 of the Code makes it the duty of the Secretary of State to furnish "all applicants upon the payment of the proscribed fees copies of all records and public documents within his office," hence the question is whether lists of voters are records of public documents within the meaning of this section.
As to what records or public documents the Secretary of State shall keep in his office, paragraphs 1, 2, :3 and 4 of section 85 of the Code provides as follows:
1. " It is his duty to keep the great seal of the State, the original acts passed by the General Assembly, and all the public records of the State not appertaining specially to other offices. He shall look to and preserve the records and papers belonging to the Senate and House of Representatives. He shall see that the original journals of both houses are deposited and kept in his office.
" 2. He shall attest all grants and other public documents requiring the great seal of the State, issuing from the Executive of the State.
" 3. He shall keep a record in proper books of all grants issued by the State.

49
"4. He shall keep safely all bonds of agents appointed to disburse public money."
Paragraph 1, section 6 of article 2 of the Constitution, see Code, section 5038, iti as follows: "Returns of elections for all civil officers elected by the people who are to be commissioned by the Governor, and also for the members of the General Assembly shall be made to the Secretary of State, unless otherwise provided by law."
By resolution approved October 18, 1879, the Secretary of State is authorized to destroy quadrennially, all returns of electious that are on file in his offire, of those officials whose terms of office have expired. See Acts 1878-79, 434.
" In all elections by the people, the electors shall vote by ballot." See paragraph 1, section 1, article 2 of the Constitution.
Section 1288 of the Code directs that " all superintendents shall have elections condiwted in the following manner:
"1. The vote shall be by ballot. "2. There shall be kept by the superintendents, or by three clerks under their appointment, three lists of the names of voters, which shall be numbered in the order of their voting, and also three talley sheets.. "3. As each ballot is received, the number of the voter on the list shall be marked on his ballot before being deposited in the box. "4. When any voter is challenged and sworn, it shall be so written opposite his name on the list and also on his ballot." Voting by ballot is intended to surround the ballot of every legal voter with the veil of secrecy and no construction should be placed upon any statute as might enable any person to remove or penetrate that veil of secrecy in any manner, unless such construction was absolutely demanded, and if any statute demand such a construction, I seriously doubt
4

5o
its constitutionality, as it would be opposed to the spirit of the Constitution. "The distinguishing feature of this mode of voting is that every voter is thus enabled to secure and preserve the most complete and inviolable secrecy in regard to the person for whom he voted." Cooley's Const. Lim. 760.
In recognition of this principle, many of the courts of last resort in different States have gone to such an extent as to declare uncormtitutional a statute which requires the numbering of ballots. The Constitution of Indiana uses these words, "All election:,: by the people shall be by ballot." In the case of Williams t'8. Stain, ;18 Ind. 89, the court held that the act requiring "the inspector of any election on receiving the ballot of any voter, to 'have thPsame numbered with figure~ on the outside, or back thereof, corresponding with the number placed opposite the name of such voter on the poll list," wai-l repugnant to the above recited clause of the Constitution and therefore void. The Constitution of Minne:;ota coutains a similar provir,;ion. In 25 Minn. 107, the court held "as applies to elections of public officers, voting by ballot ~-lignified the mode of designating the elector's ehoice of the person for the office by the depositing of a ticket bearing the name of such person, in the rec~'ptaclE' provided for that purpose, in such a way as to secure to the elector the privilege of complete and inviolable secrecy in regard to the person voted for," and further that "the statutory provir,;ion with regard to numbering the tickets clearly interferes with and violates the voter's constitutional privilege of secrecy."
The keeping of a list of voters and numbering the name and ballot of the voter could not possibly be justified on any ground except it be to aid in arriving at the correct result of the election. The numbering of the name on the list of voters to correspond with the number on the ballot makes the list of voters necessary for the identifica-

.51
tion of the ballots. It is, so to speak, the key to the ballots, and the officers charged with the preservation of these lists should part with them only when the law directs. There are only two purposes for which the law makes any provisions for the use of lists of voters, viz. : First, in cases of contest; and second, in cases of illegal voting. In both of these instances the requirements of the law must be met, and to use these lists of voters for any other purpose wonld, most certainly, be an infringement upon the votet's constitutional privilege of secrecy.
In a case of contest, section 1331 of the Code provides, "~When an election is contested, on the grounds of illegal votes, any of which it is claimed, on affidavits, can pronably be proven by resort to thE; ballots, specifying what ballots it is the duty of the clerk of the superior court to deliver the same, together with the list of voters, to the person who presides at the taking of testimony, who shall examine said suspected ballots and none other, etc."
The eleventh paragraph of section 128H of the Corle directs the clerk of the superior court to deliver to the grand jury on the first day of the next term afte-r the election the list of voters, and section 1290 makes it the duty of the grand jury to examine said list and present such persons as may have voted illegally.
It will be noticed that in neither of these instances does the law provide for, or seem to contemplate the using of a eopy of the list of voters, and also that in the matter of contest as well as in the prosecution of illegal voters, the law provides for seeuring the list of voters only from the clerk of the superior court.
It may be asked why election returns are required to be made to the Secretary of State, if not for the purpose of preserving them as records or public documents. All returns are not required to be' so made. Only those of elec- ~

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tions :fi)r civil officers who are to be commissioned by the Governor, and also, for members of the General Assembly. I think the principal reason for the law is to enable the Secretary of State to furnish the Governor the names of officers-elect to whom he should issue commissions, and to furnish the officers charged with the organization of the two branches of the General Assembly, the names of the members thereof. Until the act of 1891, all contests for officers elected by the people and commissioned by the Governor were heard and determined by the Governor, and it may be that such returns were required to be made to the Secretary of State so that the Governor, if he so desired, might inspect such returns. As each branch of the General Assembly under the Constitution is the sole judge of the election returns, and qualifications of its members, it may be that the returns of their election were required to be sent to the Secretary of State, so that. each house, in the event of a contest, might, if it so desired, inspect the returns of the election being contested.
Considering the resolutions of 1879, providing for the quadrennial destroying of all election returns of file in the office of the Secretary of State, and the provisions of our Constitution and Code to which I have referred, it is my opinion that lists of voters which may have been sent yon with the returns of any election are not included in section 83 of the Code, and therefore, it is not your duty to furnish copies of same to applicants.
Very respectfully,
,J. M. TERRELL, Attorney-General.

. ATTORNEY-GENERAL'S OFFICE,
ATLANTA, GA., .January 14, 1893.
Hon. Philip Cook, Sec1'eta1'y of State, Atlanta, Ga. :
Sm-Yon ask how far the act approved December 17th, 1892, entitled "An act to carry into effect article 3, section 7, paragraph 18 of the Constitution of this State, in so far as the same relates to issuing and granting corporate powers and privileges to railroad companies by the Secretary of State to define the powers, rights," etc., etc., repeals the act upon the same subject, approved October 21st, 1891, and whether or not the act of 1892 repeals section 1689 (hh) of the Code.
Section 1 proYides that "all corporate powers and privileges to railroad companies in this State shall be issued and granted by the Secretary of State upon tbe terms, liabilities, restrictiom; and subject to all the provisions of this act and the Constitution of this State." Section 19 repeals all laws and parts of laws in conflict with this act.
Under this, all charters issued and granted by you to railroad companies should be issued and granted alone upon the terms, liabilities, restrictions and subject to all the provisions of this act, and the Constitution of this State. Therefore, so much of the act of 1891 as prescribes other terms than those contained in the act of 1892 is repealed, and when applicants comply with the provisions of the act of 1892, you are authorized to issue and grant a charter.
Section 1689 (hh) of the Code provides for incorporating navigation companies, and is not repealed by the act of 1892, as that applies alone to railroad companies.
Very respectfully,
J. M. TERRELL, Attorney-General.

ATTORNEY-GENERAL'S OFFICE,
ATLANTA, GA., .January 21, 1893.
Han. R. U. Hardeman, State Ttea8urer, Atlamta, Ga.:
DEAR SIR-Yours of recent date reque::1ting an opinion as to whether or not you should allow the Home Mutual Building and Loan Association to withdraw the securities deposited with you under the act of 1891, as said association has ceased to do business outside of this State, has been received, and in reply I submit the following:
The act of Ui91 requires two classeH of associations to deposit certain securities with the State Treasurer, one of the State depositories, or some trust company, in trust for all their membc~rs and creditors. 1st. Those incqrporated under the laws of thiB State and doing business outside of the State. 2d. Those organized under the laws of any other .State, Territory, or Foreign Government which do bmliness in this State.
As I understand it, the Home Mutual Building and Loan Association belongs to the former class, and made the deposit required by the act of 1891; that it has ceased to do business outside of this State, having bought up all stock that had been sold outside of the State, and in the future will not do any business outside of the State, and i:nakes application to you for the return of all securities deposited by it.
Section 2 of the above mentioned act provides that "any mortgage (or other security) which shall have been fully paid to said association, or which the borrower desired to pay off and discharge, and a mortgage (or other security)

55
upon which default in the payment due has been made, and of which said association shall desire possession for the purpose of collection or foreclosure, and all securities needed by it for deposit in any other State, Territory or nation, according to the provisions of se~tion 1 of this act, shall be surrendered by said State Treasurer, or on his order, to the association depositing same, upon filing with him the affidavit of the president and secretary thereof, stating the reason or reasons for desiring to withdraw such security or securities, and 1mch security or securities shall not be used for any purpose other than that stated in the affidavit; provided, that when said association is dissolved according to the provisions of its charter, and ceases to do business, all securities deposited by it shall be returned to it upon furnishing said State Treasurer with satisfactory evidence of the fact of its dissolution, as aforesaid."
Under this, it the Home Mutual Building and Loan Association desires possession of its securities for the purpose of collection or f(neclosure, or to deposit in any other State, Territory or nation, you are authori;r,ed to surrender same if in your possession, and if deposited with one of the State depositories, or some trust company, to give the association an order for same upon filing with yon the affidavit of the president and secretary thereof, stating the reason or reasons for desi'ring to withdraw such securities.
You are also authorized to return all securities deposited by it whenever the association is dissolved according to the provisions of its charter and ceases to do business, and yon are furnished with satisfactory evidence of the fact of its dissolution. Until the association complies with these requirements, you should hold all securities deposited by it, as directed by said act, viz., in trust for all its members and ereditors.
If the law required the deposit in trust for non-resident members and non-resident creditors, you might be author-

56
ized to surrender the securities upon satisfactory evidence being produced to yon that there were no non-resident members and non-resident creditors, but the law is positive and requires the deposit in trust for all members and all creditors. This most certainly includes members and creditors residing within this State. If said association would furnish yon the written consent of all its members and creditors, both resident and non-resident, and also satisfactory evidence that it had ceased to clo business outside of the State, you might also be authorized to surrender said securities. Yours very respectfully,
J. M. TERRELL,
Attorney -General.

ATTOR~RY GENEHAL'H OFFICE.
ATLANTA, GA., December 31, 1892.
Han. John Mclnto8h Kell, Keepe1 of Pnblic Building.~ Atlanta, Ga ..:
DEA.R Sm-In reply to your request for an opinion as to whether the Technological School buildings should be included in lists of public buildings insured under the appropriation for that purpose, I beg leave to submit the following:
The act providing for insurance of public buildings and library,approved September 27,1883, directs that"All ofthe public buildings of the State and library, except the State arsenals at Milledgeville and Savannah and the penitentiary at Milledgeville and the buildings of the Western and Atlantic Railro<:td, be insured."
The intention of this act is to provide for the insurance of all buildings owned by the State and not therein specially excepted. This being the case, the only question is the Dwner.~hip of the Technological buildings. The act establishing the Tee hnological School, approved October 13, 1885, provides that such school "shall be established in connection with the State University, and form one of the departments thereof." The State has only a qualified interest in the State University. See Code, section 961. If the interest of the State in the Technological buildings was the same as that in the University at Athens, then the act of September 27, 1883, would not cover them, but section 13 of the act establishing the School of Technology provides that "all of the property purchased under the au-
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thority of this act shall be f;ee from liens or incumbrances, and the title to the same, as well as to any donations that said commission may receive, shall be taken in the name of the trustees of the University of Georgia in their corporate capacity, and said property shall become the property of the State of Georgia, and the same shall not be alienated by any one, nor shall any valid lieu be created thereon, neither in the erection of any buildings thereon, nor by the act of any person, nor by operation of law."
In my opinion,under this, the trustees of the University of Georgia, in their corporate capacity, would take the title to the preperty as trustees for the State, for the purposes named in the act, with no right or authority to alien the same, or create any lien whatever thereon, but the property would be the absolute property of the State of Georgia. It therefore follows that the Technological buildings should he covered by whatever may be their pro rata of insurance that the appropriation .for insuring public buildings may ,pruchase.
Very respectfully, .J. M. Terrell. Attorney-General.