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

THE SECOND ANNUAL REPORT
--OF-~
J. M. TERRELL,
ATTORNEY-GENERAL OF GEORGIA.
WITH AN APPENDIX CONTAINING OPINIONS.
OCT0BER, 189.lf.
ATLANTA, GA.:
GEO. W. HARRISON, STATE PRINTER.
('fhe Franklin Printing and Publishing Co.) 189(.

j j j j j j j j j

REPORT.
STATE OF GEORGIA, ATTORNEY-GENERAL's OFFICE;
ATLANTA, October 24, 1894.
1o His Excellency, W. J. Nortlten, Governor:
SIR-I beg leave to submit the following report relative to the business of public interest connected with the Attorney-General's office during the past year, and which is deemed of sufficient general importance for publication :
STATE OF GEORGIA VB. UNITED STATES EXPRESS COMPANY.
This suit was instituted in Floyd Superior Court by my predecessor at the instance of the Railroad Commission to recover the penalty incurred by that company for the violation of the rules and regulations of the Commission in charging rates for the transportation of matter by express in excess of the schedule of rates fixed by the Commission. Just before the term of court at which I expected to try the case, the company notified the Commission of its willingness to conform to the rules of the Commission, whereupon the Commission directed me to dismiss the suit upon the payment of overcharges and costs by the company, which was done.
The bill filed by the United State~ Express Company in the United States Circuit Court for the Northern District of Georgia, seeking to enjoin the Railroad Commission from making and enforcing the tariff rates and rules. under. the Act of October 21, 1891, was dismissed by the corn-

4
pany after the demurrer and answer of the Commissioners were filed and before the questions arising thereunder were argued.
SINGER MANUFACTURING CO:\IPANY 1!8. Wl\I. A. WRIGHT,
COMPTROLLER-GENERAL, et al. (TWO CASES IN FULTON
SUPERIOR COURT.)
These snits were brought to recover about three thousand dollars of taxes paid by the plaintiff to the Comptroller-General under protest and have been pending for several years. They were tried before Judge J. H. Lumpkin last J nne upon an agreed statement of facts, but after argument by Judge George Hillyer for the plaintiff and myself for the Comptroller-General, he reserved his decision until the third day of September, 1894, when he rendered a judgment in favor of the defendant in both cases. The plaintiff be~ng dissatisfied with the judgments has carried both cases to the Supreme Court where they will be heard and determined during the next term.
COLUMBUS SOUTHERN RAILWAY COMPANY V8. W. A. WRIGHT, COMPTROLLER-GENERAL.
This is the case which involved the constitutionality of the Act of 1889, providing tor county taxation of railroad property, and which was pending in the United States Supreme Court at the time of my last report. A motion was made last November to advance this ease on the ground that the question involved was such that the execution of the revenue laws of the State was enjoined. The request was granted and the case was heard and determined the following .January. The judgment in the United States Supreme Court affirmed that of our Supreme Court, thereby sustaining the constitutionality of the Act of 1889.

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GUNN vs. THE STATE. HENNINGTON V8. THE STATE.
CRIMINAL CASES IN THE UNITED STATES SUPREME
COURT.
The two criminal cases pending m the f5upreme Court of the United States and mentioned in my last report have not yet been reached. Owing to the crowded condition of the docket of that court, and these not being such cases as may under the law be advanced upon the docket as a matter of right, I am unable to give any idea as to the time when the same may be reached.
The case against Hennington is of considerable importance and I am informed that there are several indictments pending in the State courts awaiting the decision of the United States Supreme Court. Hennington, the superintendent of the Alabama Great Southern Railroad, was indicted, tried and convicted for a violation of section 4578 of the Code in running freight trains, engaged in, the transportation of interstate freight, on the Sabbath day. Inasmuch as the law forbidding the running of freight trains in this State on the Sabbath day cannot be enforced against the defendant, nor against others who may violate it, I think it advisable to seek to have this case advanced and heard during the present term of the Supreme Court.
. COUNTY TAXES ON MAIN STEM OF THE CENTRAL
RAILROAD.
The questions arising under the intervention filed in the United States Circuit Court for the Southern District of Georgia, for an order requiring the receivers of the Central Railroad to pay to the several counties and cities through which the main line of the Central runs, taxes under the County Tax Act of 1889 and the Municipal Tax Act of 18~01 were argued by me in behalf of the Comptroller-

6
General and Hon. Robert Hodges, for the city of Macon, and Messrs. Lawton & Cun::1ingham, for the Central Railroad, before Judge Speer last J nne, but as yet be bas rendered no decision upon the intervention. The questions involved arise under section 18 of the ~ttct of 1835 incorporating the Central Railroad and Banking Company of Georgia, which is as follows: "The said road and the appurtenances of the same shall not be subject to be taxed higher than one-half of one per centum upon its annual 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."
I am very hopeful of a decision favorable FO the eounties
and municipalities interested.
BRUNSWICK STATE BANK CLAHI.
At the time of the failure of the Brunswick State Bank, -ane of the State depositories, it was indebted to the State in the snm of $:10,449.73. An execution for this amount was duly is8ued against the bank and its sureties as provided by law, but the same has never been levied for the reasons set forth in my last report. The receiver of the bank, in pursuance of an order granted on July 10, 1893, by Hon. J. L. Sweat, Judge of the Superior Court of the Brunswick circuit, has paid $16,000.00 on the execution, as follows: $5,000 previous to my last report, and $11,000 since that time, viz.: December 18th, 189:), $1,000; January 12th, 1894, $1,000; February 2cl, $1,000; March 7th, $1,000; March 30th, $2,000; May 7th, $2,000; May ~5th, $3,000, which leaves $14,449.73, besides interest, still due. The receiver, Mr. Edwin Brobston, informs me that he expects to realize by December next from the assets

7
of the bank more than enough to pay the balance of principal and interest due to the State. Should the balance due be not paid by that time, I will cause a levy of the execution to be made upon the sureties. On account of the epidemic at Brunswick in 1893, and the complete stagnation of business there that year and the early part of 1894, and inasmuch as the bond of this depository was beyond all question ample protection to the State, the real estate alone which was owned by the sureties being worth three or four times_ that sum, the same being returned by them for taxation at about $125,000, I agreed with your Excellency and the State Treasurer in thinking it unwise to attempt to force the collection of this claim by levy until a reasonable time was given the receiver to realize upon the assets of the bank. This, too, seemed to be the policy of the State as declared by the General Assembly in the passage of the resolution of December 22d, 1893, suspending the collection of taxes in Glynn county until May 1st; 1894.
RAILROAD COMMISSION CASES.
The suits brought by me at the request of the Commission against the Richmond and Danville Railway Company, to recover the penalties prescribed by law for violations of the Joint Rate Rule established under authority of the Act of 1889, were dismissed at the instance of the Commission npon the company refunding the overcharges and paying all costs. This action was taken by the Commission in view of the fact that the Richmond and Danville Railway Company informed the Commission that in the future it would obey the Joint Rate Rule.
At the request of the Commission I have brought suit in Montgomery Superior Court against the Savannah, Americus and Montgomery Railway Company to recover the pen-

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alty of five thousand dollars prescribed by law for the refusal of that company to comply with an order of the CommisEion requiring the erection of a suitable depot for freight and passengers at Mt. Vernon, Montgomery county, which order was passed under authority of the Act of October 29, 1889, conferring upon the Commissioners power to require the erectioR of such depots and the establishment of such freight and passenger buildings as the condition of the road and public comfort may require. Also a suit in Stewart Superior Court against the same railway company for having discontinued the depot at Louvale, Ga., contrary to the order of the Commission.
For the reasons therein set forth I renew the suggestion made in my last rPport to the effect that such a change be made in the lien laws as will give judgments, in favor of the State against railroads for penalties, priority over all claims except for taxes.
SALE OF SCHOOL LANDS.
In obedience to your instructions, I directed the sale of lots of land numbers 10 and 100 in the first district of Wilcox county by the Ordinary of that county on the first Tuesday in September, 1894. Sale was made in conformity to the Act of 1872, and in such manner as not to effect the rights of the State to recover damage for trespasses on said lots prior to such sale. Lot number 10 brought the sum of $505, and lot number 100 the sum of $585. After deducting advertising fees and Ordinary's commission, as provided by the Act of 1872, amounting to $34;27, the balance of the proceeds, viz., $1,055.73, was paid into the State Treasury.
WESTERN AND ATLANTIC RAILROAD.
Since the passage of the resolution of December 18, 1893, authorizing the same, I have, in connection with your Excellency, after a thorough investigation and after con-

9
sultation with 'the special atto-rney of the Western and Atlantic Railroad, approved several settlements of 'encroach- ments and trespasses upon the State's property, and in like manner advised the institution of legal proceedings in some instances where negotiations looking to settlements had proven ineffectual, and it was deemed necessary to bring suits in order to protect the interests of the State, all of which is fully set forth in the report of Hon. W. A. Little, former special attorney, or in that of Hon. W. A. Wimbish, present special attorney; hence, it would be useless to herein mention these each of settlements and suits.
These reports will be found to contain a complete history of all matters and transactions relative to this valuable property, and also much data and information which may be necessary to fully protect the State's interest at.the expiration of the present lease. I trust it may not be considered out of place for me to say that these officials have reflected much credit upon themselves by the able, painstaking and satisfactory manner in which the important and laboriou'l duties of this responsible position have been performed.
I have concurred in the policy pursued by them in first exhausting all negotiations looking to amicable settlements before filing suits, and I am thoroughly convinced that such a policy has proven advantageous rather than detrimental to the State.
NORTHEASTERN RAILROAD COMPANY.
Upon your Excellency being notified, on the 15th day of November, 1893, of the default of the Northeastern Railroad Company in the payment of interest due on the bonds indorsed by the State, I prepared by your direction a prodamation, which your Excellency signed, seizing and taking possession of all the property of said company, as pro-

10
vided in section 10 of the Act of Octoher 27, 1870, incorporating said road, and in which Colonel Rufus K. Reaves was appointed agent for the State to seize, hold, and operate the road.
That part of the road running from Athens to Lula, a distance of forty miles, and known as the Northeastern Rail- road, was found in the possession of Samuel Spencer, T. W. Huidekoper, and Reuben Foster, receivera of the Richmond and Danville Railway Company, appointed by the United States Ciruuit Court, and they refused to deliver possession of same to the State's agent until ordered to do so by the court appointing them. Thereupon I presented to Judge Newman, in the United States Court, an application for an order directing the receivers of the Richmond and Danville Railway Company to turn over to the State's agent the said Northeastern Railroad and all of its property in their possession This order was granted by the court and in pursuance thereto the road was turned over to Colonel Reaves November 20, 1893.
That part of the road running from Cornelia to Tallulah Falls, a distance of twenty-one miles, and known as the Blue Ridge and Atlantic Railroad, and which was originally a part of, and owned by, the Northeastern Railroad Company, and therefore embraced in the property upon which the State claims a prior lien to protect its indorsement, was
found in the possession of ,V. V. Louraine, receiver of the
Blue Ridge and Atlantic Railroad, appointed by the Uunited States Circuit Court. Acting upon my advice, the State's agent demanded possession of the Blue Ridge and Atlantic Railroad of the receiver, but he refused to deliver same unless so ordered by the eourt appointing him. After a consultation with your Excellency and Colonel Reaves, it was thought best not to make application to the court for an order directing the receiver to deliver possession to the State for reasons unnecessary to state in a public

11
report, but which will be fully explained to your successor and the proper committees of the General Assembly.
Since the seizure of the road I have rendered your Excellency and the State's agent such assistance in the management of the affairs of the road as was deemed necessary, none of which need be herein specially mentioned.
Before leaving this subject I feel it due to Colonel Heaves for me to say that his most admirable management of this property attests the wisdom of your Excellency's action in appointing him the State's agent.
RAILROAD TAXES.
During the past year I have succeeded m collecting most of the principal and interest of taxes due the State for 1892 and 1893 by various railroads in the hands of receivers, aud for which the Comptroller-General issued
fl. fas., and placed in my hands for collection, and note
same in the itemized statement of collections given below. In one or two cases I have very little hope of collecting the amounts due the State until the roads are sold, which may be sometime during the next year. It was with a view to such a condition that I suggested in my last report a change in our lien law so as to allow the collection of the State, county, and municipal taxes on property in the hands of receivers in the same manner as if the property remaineli in the possession of the individual or corporation to which it belongs. I can see no good reason why the property of corporations and individuals in the hands of receivers should not pay its portion of the taxes at the same time as the property not in the hands of receivers. I therefore respectfully renew this suggestion. In all other cases where the money has not yet been collected, I have secured orders from the courts appointing receivers directing payment, and am collecting same as rapidly as the re-

12
ceipts authorize the receivers io make payments, or as the receivers sell or dispose of the receiver's certificates which have been authorized in some of the orders for the payment of taxes.

CASES IN THE SUPREME COURT.
During the past twelve months I have, in obedience to the requirements of the Constitution, represented the State in twenty-four capital cases in the Supreme Court of the State, and one civil case affecting the assets of the Brunswick State Bank upon which the State held a prior lien.

OFFICIAL OPINIO~S.
Since my last report I have furnished your Excellency and the different departments of the State about fifty official opinions in writing, besides a large number orally. Such of the written opinions as I deem of general interest, and those which involve questions which are likely to arise in the future, I herewith attach as an appendix.

COLLECTIONS FOR THE STATE.
The amounts named below have been collected during
the last year from the sources indicatecl and paid in to the Treasury of the State, to wit:
From Chattanooga for condemnation of the State's property for street purposes ______ $ 1,000 00
From Brunswick State Bank _______________ 11,000 00 From Central Railroad System _____________ 39,:373 97 From Georgia, Southern and Florida Railroad_ 13,604 51 From Savannah and Western System ______ 12,871 46 From Abbeville and Waycross Railroad_______ 355 77 From Chattanooga Southern Railroad __ _____ 2,559 67 From East and West Railroad________________ 1,267 68 From Savannah, Americus and Montg'ry R. R. 9,564 40

Total

----$91,597 46

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As the time draws near when the official relations which have for the past two years brought us into such intimate association must be severed, I beg, in concluding this my last official report to you as Chief Executive of this State, to bear testimony to the people of Georgia, as well as to those who shall hereafter occupy the exalted position which you soon relinquish, that in your hands the institutions of government entrusted to your care have been administered justly, honorably, conscientiously, ably, and with the one supreme purpose to honor the State and to promote the welfare of her people. Let me further assure you that in your retirement, as in the active service of the people you love so well, you will be remembered as one always true to Georgia and devoted to the best interests of her people.
Very respectfully, J. M. TERRELL, Attorney- General.

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APPENDIX.
OPINIONS OF ATTORNEY-GENERAL TERRELL.
ATLANTA, GA., DECEMBER 19, 1893.
To His Excellency, W. J. Northen, Governor:
DEAR SIR-You ask whether, in my opinion, the position of Deputy Collector cf Internal Revenue of the United States is an office such as is contemplated in sub-section 4, of section 129, of the Code of 1882, declaring and enumerating what persons shall be held and deemed ineligible to hold any civil office in the State, said sub-section 4 reading as follows: "Persons holding any office of profit or trust, under the Government of the United States (other than that of postmaster), or of either of the several States, ~r of any foreign State."
In consideration of this subject, the questions involved are: 1. What are the essential elements of office? 2. Does the position of Deputy Collector of Internal Revenue of the United States possess such essential elements? In investigating and considering the primary question of the subject in hand, I have found much valuable aid in an able and well considered opinion, furnished your Excellency by Ex-Attorney-General William A. Little, to be found on page 27 of an Appendix to his printed report of 1892. "The general definition to 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 station of public trust, not merely transient, occasional, or incidt3ntal." 20 Johns, 493. "An office is a public charge, or employment, and every office is considered public, the duties of which concern the public." 7 Howard Pr. H.. p. 248. "The legal meaning of the term "office" implies a charge or trust, conferred by public authority, and for public purposes." 7 Porter (Ala.), 371. "An office is a public station, or employment, conferred by the appointment of government; the term imbraces the idea of tenure, duration, emolument, and duties." 6 Wallace, 385-393.

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Having outlined above the essential elements or constituent parts Of office, it now remains to determine whether the position of Deputy Collector of Internal Revenue of the United States comes within the scope of that term.
It is obvious. that the word tenure, as set out above, has reference to the manner in which the charge, or trust, is held, as well as the source from whence it is derived, and that the word duration is used in contradistinction to transient, occasional, and incidental.
Section 3148 of the Revised Statutes of the United States, as amended by Congress (see supplement toR. S. page 224), authorizes the appointment by each Collector of Internal Revenue, by an instrument in writing under his hand, of as many deputies as he may think proper. Hence, it will be observed that the appointment of a Deputy Collector proceeds from statutory authority.
By the same section of the Revised Statutes, as amended (see supplement toR. S. page 224, supra), power is conferred upon the Collector to revoke the appointment of such deputy, giving such notice thereof as the Commissioner of Internal Revenue may prescribe. By virtue of this statute, the duration of the appointment is limited to the pleasure of the Collector, under condition mentioned.
On the question of duration, 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.". 8 Am. R. 488; 74 Penn. St. 124 8 Cal. 39. Webster defines duration thus: "Continuance in time, indefinite perpetuation; prolonged existence; the portion of time in which ~~onything exists." There can be no doubt that the element of duration exists where the appointment is continuous, and indefinite and limited to revocation at the will of the appointive power.
Such deputies shall be compensated for their services by such allowances as shall be made by the Secretary of the Treasury, upon the recommendation of the Commissioner of Internal Revenue. (See section 3148, Hevised Statutes United States, and amendment thereto. t:lupplement toR. S. page 224.) Thus it will be observed that compensation for such deputy is provided by statute.
Sections 3148 to 3150, 3165, 3173, 3174, 3176, 31 i7, 3183, 3184, 318i 3188, 3196,3197, 3198 et seq., and amendments by Congress (see S\J.pple~ ment to R. :::;, page 224-25) delegate authority to, and prescribe certain dnties of Deputy Collectors.
It is quite clear from the foregoing that the position in question possesses such elements as are necessary to give it the character of a public office.
But to .go, a step further: It is a well settled proposition of law, that in determining the effect of a statute, or the character of a charge, or trust, created thereby, reference should be bad to the language of such

17

statute, and the manifest intention of the legislative authority enacting

the same. Having authorized the appointment of deputies, limited the

time of service, allowed compensation, and prescribed rights and duties

of such deputies. Congress has, in my opinion, imputed to the incum-

bent the character of a public officer by its language contained in section

:n67 of the Revised Statutes of the United States, which reads as fol-

lows: "If any Collector, or Deputy Collector, ~. any Inspector, or other

officer, acting under the authority of any Revenue law of the United

States, divulges to any party, or makes known in any other manner

than may be provided by law, the operations, style of work or apparatus

of any manufacturer or producer, visited by him in the discharge of

his official duties, he shall be subject to a fine of not exceeding one

thousand dollars, or to be imprisoned for not exceeding one year, or

both, at the discretion of the court, and shall be dismissed from office

and be forever thereafter incapable of holding any office under the

Government."

In the case of the United States vs. Tinklepaugh, 3d Blatch. (N.Y.),

4SO, upon the question as to whether a Deputy Marshal, appointed

by a United States Marshal, was an officer of the United States, the

court, taking into consiJeration the statutes upon the subject (which

are similar in every material respect to the statutes relating to the

appointment of Deputy Collectors), held that a Deputy 1\hrshal, eo

appointed by a United States Marshal, was an officer of the United

States.

In 4 Vt. 615, and 8 Texas, 512, the court held that Deputy Sheriffs

were public officers. The question made in these cases is analogous to

the one under consideration.

My conclusion is that a Deputy Collector of Internal Revenue is an

officer of the United States, and therefore ineligible to bold any civil

office in this State.

Very respectfully,

J. M. TERRELL, Attorney-General,

STATE OF GEORGIA, ATTORNEY-GENERAL'S OFFICE, ATLANTA, GA., May 22, 1894.
Hon. ur. J. Northen, Governor, Atlanta, Ga.:
DEAR SIR-In reply to your request for an opinion relative to the diecharge of Bill Benson (a misdemeanor convict under sentence from Carroll Superior Court) from the Floyd county chain-gang, under habeas corpus proceedings before the Ordinary of Floyd county, I beg leave to submit the following:
The Ordinary bad no jurisdiction of an applieation for ha.beas corpus in this case. That officer has no right whatever to interfere with the sentence of the Superior Court. lf the latter court committed error,

18

the Supreme Court is the only tribunal which the Constitution and laws

of this State clothe with authority to review and reverse the judgments

rendered therein. Section 4023 of the Uode and 60 Ga., page 391, clearly

support the proposition that the Ordinary has no jurisdiction of such an

application, and I am, therefore, of the opinion that the Ordinary's

action in discharging Benson under the writ of habeas corpus is abso-

lutely null and void, and, being so, I think Benson should be treated as

>Ill escape. Hence, I think it the duty of the Sheriff of Carroll county

to rearrest, or rather to retake, Benson and deliver him to the chain-gang

authorities to serve out the sentence of the court. It would not be

amiss for you to notify thlil Sheriff that no pardon or commutation had

been granted Benson.

Very respectfully,

J. M. TERRELL, Attorney-General.

STATE OF GEORGIA, OFFICE OF AT1'0RNEY-GENERAL, ATLANTA, GA., January 22, 1894.
lion. Philip Cook, Secretary of State, Atlanta, Ga.:
DEAR Sm-In reply to your request for an opinion construing the law relative to the incorporation of banking COihpanies, I beg leave to submit the following:
Under an Act, approved October 21, 1891, entitled "An Act to pre. scribe thfl method of granting charters to banking companies in this
State, to define the powers and liabilities of the same, and for other purposes," it is provided how and upon whttt conditions the Secretary of State shall issue charters to banking companies. After the p~ssage of this Act, an amendment to thn Constitution wtts submitted to the people an,d adopted at the general election in October, 1892, declaring 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 Jaw." An Act, approved December 20, 1893, entitled "An Act to carry into effect paragraph 18 of section 7 of article 3 of the Constitution of 1877, as amended, in relation to charterrng of banks, to provide for the incorporation of banking companies by the Secretary of State, and for other purposeB," requires different conditions upon which charters to banking companies are to be granted by the Secretary of State than those required. by the Act .of l89l. As I understand your request, you desire to be advised whether the Act of 1891 is repealed by the Act of 1893 in order that you may know how and upon what conditions charters may be granted to banking companies.
The subject-matter of both Acts is the same, viz., the incorporation of banking comp1nies. The Act of 1893, whilst it adds conditions and makes it much more onerous to applicants to obtain charters, embraces

19
practically all the provisions of the Act of 1891, and clearly in tends to prescribe the only manner of incorporating banks. Such being the case, I think the Act of 1893 repeals, or rather renders inoperative, the Act of 1891, and that you should not, therefore, issue any charters to banking companies until the applicants have complied with the requirements of the Act of 18!J3. This conclusion is supported by many authorities, but I deem it nnnecess11ry to cite any except the following, to wit:
"If a subsequent statute be not repugnant in all of its provisions to a prior one, yet if the latter statute clearly intended to prescribe the only rule which shall govern, it repeals the prior one." 3 Howard, 636.
"A statute covering the whole subject-matter of a former one, adding offences and varying the procedure, operates not cumulatively, but by way of substitution, and, therefore, impliedly repeals it." 7 Otto, 540.
"Whenever a statute is passed, which embraces all the provisions of previous statutes on the same subject, the new statute operates as a repeal of all antecedent enactments." 12 Allen, 480.
"If an affirmative statute introduces a new rule, and is plainly intended as a substitute for 11 former statute, it repeals such former Act by implication.'' 33 Penn. St. 511.
"Statutes which grant a right upon different conditions from thme prescribed in former stntutes are inconsistent with the lntter, and there is a repeal.'' 55 Penn. St. 126. See also Sedgwick on Statutory and Constitutional Law, pages 100 and 101.
I do not think there is any merit in the objection which you state has been urged against the Act of 1893, that, inasmuch as it does not refer to or describe the Act of l 891, it is obnoxious to paragraph 17 of section 7 of article 3 of the Constitution, which reads as follows: "No law, or section of the Code, shall be amended or repealed by mere referAnce to its title, or to the number of the section of the Code, but the amending or repealing Act. shall distinctly describe the ]aw to be amended or repealed, as well as the alteration to be made." Statutes which amend others by implication are not within this constitutional provision, and it is not essential that they describe or even refer to the sections or Acts which they by implication amend. Cooley's Constitutional Limitations, page 162.
The dicta of our Supreme Court in two cases (71 Ga. 461, and 74 Ga. 41) seem to be at variance with this position, but I eannot believe that when the question is squarely made before the court, it will be decided that there can be no repeals, under our Constitution, by implication. Such a construction would not only set aside many important and wholesome laws enacted since the Constitution of 1877, but would very nearly render legislation impossible. The evil which undoubtedly caused th.e above provision to be incorporated in the Constitution was the passing of laws by the General Assembly without the members being fully advised of what they were doing; for in~tanee, an Act, which purported

20

to amend another Act, or a section of the Code, by inserting certain

words, or by substituting one phrase for another in an Act or section

which was only referred to by the title or number, would be well calcu-

lated to mislead the legislators as to its effect. This constitutional pro-

vision renders inoperative all such Acts, but, as above indicated, as it is

not within the mischief, does not affect an Act which repeals another by

implication.

Many of the States have a similar provision in their Oonstitutjons

and, with only one exception, the Supreme Courts of those States have

held that Acts which by implication revise, amend or repeal former laws

are not affected by such constitutional provision, nor the well established

rule as to repeals by implication abrogated thereby, notwithstanding

such repeals are not favored by courts. See 4 Lea (Tennessee Reports),

644; 13 Mich. 482; 16 Indiana, 497; 24 Mich. 389; 38 Kansas, 696.

The additional point which you state is urged upon you, that the fact

that at its la.st session the General Assembly adopted a certain amend-

ment to the Act of 1891, which amendment regulates the transfer of

~bares by stockholders, and bears the same date of approval as the Act

of 1893 in question, is suggestive of an intention on the part of the

legislature that said Act of 1891 should continue of force and operative

with respect to the issuance of charters, is fully answered by the fact

that such amendatory enactment operates as an amendment to charters

heretofore granted under the Act of 1891.

Very respectfully,

J. M. TERRELL, Attorney-General.

STATE OF GEORGIA, ATTORNEY-GENERAL'S OFFICE, ATLANTA, March 7, 1894.
Hon. Philip Cook, Secretary of State, Atlanta, Ga.:
DEAR SIR-You ask, 1st, What is the geneml railroad law of the State which is to govern you in the granting of charters to street and suburban railroad companies?
2d. How many must sign the petition for the charter? 3d How long must the notice be advertised, if at all? 4th. What fee must be paid by the applicants? The latest Act upon the subject of incorporating railroads is that approved December 20, 1892, but the sixteenth section of this Act declares "that the provisions of this Act shall not apply to and govern in the in. corporation, control and management of suburban and street railroad companies." Therefore, it is your duty to grant charters to suburban and street railroad companies without any reference whatever to the Act of 1892. By the Act approved August 31, 1891, all general laws of this State providing for the incorporation of railroads are made applicable to street

21
and suburba'n railroad companies whenever the provisions of the laws regulating the incorporation of railroad companies of foroe at that time have been complied with.
Three or more persons must sign the petition for charter, and the notice must be advertised for thirty days. See Act approved September 28, 1883, and also the opinion of Hon. W. A. Little, Attorney-General, on page 78 of the Attorney-General's report for 1892. The applicants for the charter must pay a fee of fifty dollars upon the filipg of their application. See section 1 of the Act approved October 21, 1891.
Yours very truly, ,J. M. TERRELL, Attorney-General.
STATE OF GEORGIA, DEPARTMENT OF ATTORNEY-GENERAL, ATLANTA, September ] 3, 1894.
Hon. Allen D. Candler, Secreta1y of State, Atlanta: Ga.::
DEAR Sm-In reply to your request for an opinion as to whether any fee should be ch11rged the purchasers of the Florida Midland and Georgia Railroad for filing a petition in your office requesting to be ~ubsti tuted in lieu of the original stockholders as provided by the Act of December 17, 1892, I beg leave to submit the following:
Section 9 of said Act provides that purchasers of any railroad under any trust deed or mortgage foreclosure or any judicial sale have or acquire by virtue thereof the same rights, privileges, grants, franchises, immunities, and advantages which belonged to, and were enjoyed by, the company owning said road previous to such sale, and that the purchasers, their associates, successors, or assigns, may procteed to organize anew by filing a petition with the Secretary of State, with a request therein to be substituted for the original petitioners and stockholders, with all their powers, rights, privileges, duties and iiabilities under said Act, and then they may proceed anew by electing new directors, and conduct their business generally, as provided by said Aet; and such purchasers and their associates shall thereupon be a corporation, with all the powers, privileges and franchises conferred by, and be subject to, the the provisions of section 9 of said Act:
Section 17 of the Act of 1892 provides that whenever any railroad company desires to amend its charter, or any persons desire to adopt the provisions of that Act, it or they shall file a petition with the Secretary of State, setting forth in what manner it is desired to amend or adopt the provisions thereof, and that when such petition is filed the Secretary of State shall issue to said company or persons, under the great seai of the State, a certificate setting forth the manner in which said charter is amended, if the petition was for amendment, or if the petition was to adopt the provisions of said Act, then a certijicate setting forth that stlid persons are a body eorporate, with all the powers, duties and

22
liabilities of said Act, but before such certificate shall issue the petitioner or petitioners shall pay to the T.reasurer of the State the sum of fifty dollars.
Upon examination of the petition of the purchasers of the F~orida Midland and Georgia Railroad Company, I find that it contains only a request to be substituted in lieu of the original stockholders. They do not petition for any amendment, rtor to adopt the provisions of the Act of 18?2, nor do they ask for any c,ertificate from the Secretary of State under the great seal of the State. The fee of fifty dollars is required before you are authorized to issue a certificate under the great seal of the State. No fee is required for the filing of a petition. I therefore think that the said purchasers are not liable for a fee of fifty dollars or any other amount until they petition to amend or seek to adopt the provisions of the Act as provided in section 17, or at least in some way ask for such a certificate as is contemplated by said section.
Yours respectfully, J. :M. TERRELL, Attorney-General.
STATE OF GEORGIA, 0~'FICE OF ATTORNEY-GENERAL, ATLANTA, GA., February 9, 1894.
Hon. W. A. Wright, Cornpt1'oller-General, Atlanta, Ga.: DEAR Sm-I have yours of 1st instant, in which you state that
'a warrant has been drawn by his Excellency, the Governor, on the State Treasurer, in favo~ of the Savannah, Florida and Western Railroad in payment ot a bill for the transportation of troops from Savannah to some point on said road, to prevent the Uorbett-Mitchell prize fight, and doubting my authority under existing laws to approve same, have withheld approval until I could investigate the legality of the claim and obtain also your official opinion on the subject," etc., etc.
'l'o intelligently answer your inquiry, I must assume that the question which raises the doubt in your mind refers to the authority of the Governor to order the troops into .service to prevent the Corbett-Mitchell prize fight, and his consequent authority to draw from the State treasury funds sufficient to meet the necessary expenses of transporting the troops when so ordered out. And, assuming this to be the meaning of your question, I herewith submit an official opinion on the legal questions as I understand them to be involved in your inquiry.
To reach an intelligent and satisfactory conclusion upon the questions involved, it becomes necesssry to ascertain:
J.st. Whether such a prize fight is a crime under the laws of Georgia. 2d. Whether to prevent or intercept such fighting authority by law vested in the Governor to order out the troops of the State.

23
3d. If such authority is vested in the Governor, then how and in what way the necessary expenses incurred by the military, so ordered out, are to "be paid.
(1) Several weeks since, in reply to a request from the Governor, I inYestigated the question as to whether prize fighting was a crime in this State, and gave him an official opinion to the effect that it was a crime. A review of this question, and a re-examination of the authorities since the receipt of your request, confirm me in the opinion which I gave the Governor. Our Code defines an assault to be " an attempt to commit a violent injury on the person of another," and a battery as" the unlawful beating of another." Neither malice nor anger is an essential element of the offence of assault and battery. In the case of Hill vs. The State, 63 Ga. 578, the court held that the voluntary throwing a stone at a person and hitting him, though in sport or play, and without malice or anger, was an assault and battery, and in the case of Crumley vs. The State, 61 Ga. 582, the court held that shooting at another in sport with a gun, at a distance of twenty steps, was an assault, even if the gun be loaded with powder only. In the case of Commonwealth vs. Collberg, 119 Mass. 351, where the parties by mutual agreement went out to fight one another in a retired place, and did fight in the presence of from fifty to one hundred persons, the fight continuir;g until one said that he was satisfied, the court held the fighting unlawful and the parties guilty of un assault ~nd battery, and in a very able and well-considered opinion by Endicott, J., the following w.as given as the law of the case:
"The common law recognb:es as not necessarily unlawful certain manly sports calculated to give bodily strength, skill, and activity, and to lit people for defence, public as well as personal, in time of need. Playing at cudgels, or foils, or wrestling by consent, there being no motive to do bodily harm on either side, are said to be exercises of this description. Fost. C. L. 259-260; Corn. Dig. Plead. 3m 18. But prize. fighting, boxing matches and encounters of that kind serYe no useful purposes, tend to breaches of the peace and are.unlawful, even when entered into by agreement and without anger or mutual ill-will. Fost. (J. L. 260; 2 Greenl. on Ev. Sec. 85; 1 Step.l. N. P. 211. If one party license another to beat him, such license is yoid, because it is against the law. Matthew vs. Ollerton, Comb. 218. In an action for assault the
defendant attempted to put in evidence that the plaintTft and he had boxed by consent, but it was held no bar to the action, for boxing was unlawful, and the consent of the parties to fight could not excuse the injury. Boulter V8. Clark, Bull N. P. 16. The same rule was laid down in i:ltout vs. Wren, 1 Hawks (N.C.), 420, and in Bill vs. Hansley, 3 Jones
{::-.r. C.), 131. In Adams vs. Waggoner, 33 Ind. 351, the authorities are
reviewed, and it was held that it was no bar to an action for as!'ault that the parties fought each other by mutual consent, but that such consent may be shown Ill mitigation of damages. See Logan vs. Austin, 1 Stew.

24
(Ala.) 476. It was said by Coleridge, J., in Regina vs. Lewis, I. C.. & K. 419 that 'no one is justified in striking another except it be in selfdefence, and it ought to be known tJlat whenever two persons go oufto strike each other and do so, each is guilty of an assault,' and that it was immaterial who strikes the first blow. See Rex vs. Perkins, 4 0; & P. 537. Two cases only have been called to our attention where a different rule has been declared. In Champer vs. State, 14th Ohio 1-;t. 437, it was held that an indictment against A for an assault and battery on B was not sustained by evidence that A assaulted and beat B in a fight at fisticuffs by agreement between them. This is the substance of the report, and the facts are not disclosed. No reasons are given or cases cited in support of the proposition, and we cannot but regard it as opposed to the weight of authority. In State vs. Beck, 1 Hill (S.C.), 363, the opinion contains statements of law in which we tannot concur."
Among various other authorities in line with the decision of the Supreme Court of Massachusetts and the authorities cited in the above quotation, the following will be found to support the conclusion that parties engaging in such fights are guilty of an assault and battery. 1 Bishop, sections 260(3), 5~5; 2 Bishop, sec. 35(3); 1 Cox C. C.17i; 8 Q. B. D. 534 et seq.; 56 Vt. 445.
A careful reading and consideration of these authorities, I think, will convince the most doubtful that parties who engage in prize-fighting in this State, with or without gloves, are g~ilty of the offence of assault and battery.
Men usually fight from passion to avenge an insult, or for protection of self or property. The latter m')tive is recognized as a moral as well as a legal right and duty. In all of these cases there is a motive which the law recognizes even if it does not excuse, and it punishes or justifies according to the injury intended or inflicted, the nature of the cause which excited the passion, the character of the insult, or the necessity of self-protection. A prize fight is a fight for a prize-it is nevertheless a fight which brings blood, and maiming, and pain, and physical injury; it may be without malice-it is not without violence; it may be opened with a handshake-it is ended with a knock-down for a pri7,e,-that is for the belt and the purse, or rather the purse and the belt.
Section 471~ of the Code provides that if any person shall attempt to commit an offence prohibited by law. and in such attempt shall do any act toward the commission of such offence, but shall fail in the perpetration or shall be prevented or intercepted from executing the mme, such person shall be indicted for misdemeanor. If any person intend to engage in a prize fight in this State, and he shall be prevented or intercepted, or even if he desist after the attempt to do so, this would not relieve him from being guilty of an assault. See case of Bishop 1:s. The State, 86 Ga. 329.

25
(2) Whettier to prevent or intereept such fight authority is vested in the Governor to order out the military of the State.
P&ragraph 12; sec. 1, art. 5 of the Constitution declares " a well-regulated militia to be essential to the peace and security of the State."
Paragraph' 12, section 1, art. 5 of the Constitution is as follows: "The Governor s'nall be com:mandet-in-chief of the army and navy of this State, and of'the militia thereof."
Paragraph 12, sec. 1, art. 5 of the Constitution, which prescribes the powers and duties of the Governor, declares that " He shall take care that the laws are faithfully executed. For this purpose be bas power as commaridarcln-chief of .the military, whenever in his discretion the due
enforcement of the process of tbe courts is so resisted. !lnd set at defiance as to require such interposition." Were this all the law upon this subject, I am inclined to the opinion that the Governor would have the authority within his discretion to call out the troops to aid the civil officers in preserving the public peace.
Section 9 of the Act approved October 13, 1885 (see Ga. Laws of 1884-81\, page 78), provides " that whenever any Judge of the Superior Court, City Court, Judge, Sheriff", or .Mayor of any incorporated city, town or village in this State shall have reasonable cause to apprehend the outbreak or any riot, rout, tumult, insurrection, mob, or combination to oppose the enforcement of the laws by force or violence within the jurisdiction in which such officer is by law a conservator of the peace, which cannot be speedily suppressed or effectually prevented by the ordinary posse comitatus and peace officers, it shall forthwith become the' duty of such Judge, Si:terilf, or Mayor to report the facts and circumstances, in writing, to the Governor and request him to order out such portion of the volunteer forces of this State as may be necessary to enforce the laws and preserve the peace; and it thereupon shall be the duty of the Governor, if he deem such apprehension well founded, to order out or direct to be held in readiness such por~ion of the volunteer forces of the State as he may deem advisa'!Jle for the proper enforcement of the law, and he may direct the officer in command of the troops to report to the officer making such application, or any one or more of them, and to obey the orders of such civil officer. or, if the Governor deem it advisable, may specially instruct the officer in command of such troops as to the duties required of them, and direct their execution under the immediate control of the Governor.''
This expressly authorizes and directs the Governor, upon application of peace officers therein named, to order out such portion of the volunteer forces of the State as he may deem advisable to aid the civil officers in the proper enforcement of the law. Certainly no one can doubt that the prevention of a crime is proper enforcement of the law.
Under this statute the Governor, may in his discretion, order out the troops whenever he has been informed by the proper officer that he has

26
reason to apprehend the outbreak of any riot, rout, tumult, insurrection, mob, or combination to oppose the enforcement of the laws by force or violence, etc., which cannot be effectually prevented by the ordinary posse comitatu.~ and peace officers.
It will be seen from the wording of the statute that it is not necessary to wait until the actual outbreak has occurred, nor until the civil officers have tested their strength, but it is sufficient when the officer has reason to apprehend an outbreak. This threatened outbreak ma;y be a riot rout, or tumult.
Riot is defined as follows: "If any two or more persons, either with or without a common cause of quarrel do an unlawful act of violence or any other act in a violent and tumultuous manner, such persons shall be guilty of a riot." Code, section 4514.
Rout is to assemble in a clamorousand tumultuous crowd. (Webster.) In criminal law rout generally agrees in all particulars with a riot, except that it may be a complete offence without the execution of the intended enterprise. Bouvier Law Die,, Title Rout. Tumu!t is the commotion, disturbance, or agitation of a multitude, usually accompanied with great noise. (Webster.)
So that it is in the discretion of the Governor to order out the troops when any of the officers designated inform him that he has reason to fear the outbreak in this S.ate of a tumult, i. e., the commotion, disturbance, or agitation of a multitude, accompanied by great noise. Also when he has reason to fear that many persons will. assemble in a clamorous and tumultuous crowd, where two or more persons either with or without a 0ommon cause of quarrel may do an unlawful act of violence or any other act in a violent and tumultuous manner. It certainly is not necessary to seriously consider this question further. All the violence which could be inflicted on tho body of another "above the belt" by an arm and body previously trained to acquire force and strength is contemplated, desired, and attempted with the assistance of seconds, bottle-holders, time-keepers, and referee, in the presence of a multitude, many of whom doubtless have money staked on the result of the contest and some of whom at lea~t do not observe the quiet and decorum of a church assemblage.
As to whether the cir(umstances in the opinion of any other person or official were sufficient to justify it, the Governor being clothed with the discretion to order out the military, his judgment in so doing is conclusive, and in the language of Chief Justice Marshal, he is responsible alone to his {'uuntry and his conscience. When an application is made tu the Governor for troops, his discretion in the matter is as final and conclusive as in an application for pardon.
The Constitution of the United States and also an Ac. of Uongress upproved in 1795, declare that the President may, under certain circ~m. stances, call forth such number of the militia of the several States !IS he

27
may judge necessary for the purpose for which the call is made. The President made requisition upon the Governor of New York for the militia of that State, aml in the case of Martin '1:8. Mott, 12 Wheaton, page 19, the Supreme Court of the United States held (Mr. Justice Story delivering the opinion of the court) that the authority to decide whether the exigencies contemplated in the Constitution of the United States and the Act of Congress of 1795 in which the President bas au thority to call forth the militia to execute the laws of the Union, suppress insurrection, and repel invasion, have arisen is exclusively vested in the President and his decision is conclusive upon all other persons.
In the case of Vanderhayden vs. Young, 11 John, 150, where the point was made the same as in the last named case, viz. : on the President's discretion in calling out the State militia, the Supreme Court of New York held that the President of the United States alone is made the judge of the happening of the event, or events, authorizing the call to be made and he acts upon his responsibility. In delivering the opin!on of the court, Spenl"er J., said: "It i:; a general and sound principle that whenever the law vests any person with power to do an act and constitutes him a judge of the event on which the act may be done, and at the same time contemplates that the act is to be carried into effect through the instrumentality of agents, the person thus clothed with power is in vested with discretion, and is q1wad hoc a judge.
The statutes of Massachusetts authorize the mayors of cities, under ~ertain circumstances, to call out the volunteer militia to aid the civil authorities. The Mayor of Boston, in view of the imminent danger and the anticipated violence and resistance to the laws upon the part of certain persons, called out the voluntee<i militia, and in the ~ase of Ela vs~ Smith, 5 Gray 121, the question was presented as to whether the circumstances authorized the call, and in passing upon the question the Supreme Uourt of :Massachusetts held that "the determination of the Mayor thut riot or mob is threatened is conclnsive that occasion exists which authorizes him to call out the volunteev militia to aid the civil authority in suppressing violence and supporting the laws;'' also that" the authority to call 0ut militia for particular purposes carries with it, by necessary nnd reasonable implication, the authority to employ them to effect that object and to issue all proper orders and use all reasonable means therefor."
To call out the military to aid tho civil officers in preventing a prize fight is not only authorized by the law, but is supported by several precedents in other States-notably by the action of Governor Lowrey, of Mississippi, in calling out the troops to aid the civil officers in preventing the Sullivan-Kilrain fight, which case was in all material respects exttrtly similar to the one now under discussion.
If the Governor, after having necessary notice, in. his discretion, thought that the occasion required a call for the troops, he not only had

28
the authority, under the Constitution and laws of this State, to make such call, but it was his sworn duty as conservator of the peace of the State so to do.
(8) How and in what way nec\lSSary expenses of the military so ordered out are to be paid.
To meet legal claims against the State for which no appropriation bas been specially made a contingent fund is always provided for in the general appropriation act, which fund the Treasurer is authorized to pay out upon warrant issued by the Governor and countersigned by the Comptroller-GeneraL All other funds in the treasury can be drawn out only by direct appropriation. This contingent fund is intended to be used in payment of legal claims against the State which the Legislature could not foresee. To move troops when ordered out by the Governor itwould be absolutely necessary to furnish transportation in order to make their services effective and a claim for transportation of these troops under euch circumstances is a just and legal claim against the State. In conclusion, I will say that the Governor being authorized by law to order out the troops, and it having been advisable in his judgment to do so and the exercise of that judgment being final and railroad trans portation being necessary to make the services of the troops effective and the cost of such transportation being a legal claim against the State, and there being a fund appropriated by law for. the payment of legal claims against the State for which no appropriation is specially made, it is clearly my opinion that you should countersign the warrant.
Yours very truly, J. M. TERRELL, Attorney-General.
STA.TE OF GEORGIA, ATTORNEY-GENERAL'S 0F}'lCl:, ATLANTA, GA., March 20, 1894.
Hon. W. A. Wright, Comptroller-General, Atlanta, Ga.: DEAR SrR-In reply to your request for my views relative to an ac-
count against the State growing out of the Corbett-Mitchell prize fight. I beg leave to submit the following:
One item of the account is to cover the expenses and compensation of John Ellis, Sheriff of Appling county, for a trip to Jacksonville, Fla., by order of the Governor to investigate and report" to him the probability of such fight being attempted in thi~ State, and to ascertain what arrangements, if any, were being made by the parties managing the fight to have the same take place within this State.
When a 'request is made to the Governor by the proper officials to order out the military forces, it is the duty of the Governor, if he deems the apprehension of the officials making the request well founded, to make the call; and before determining whether such apprehension iS

29

well founded, the Governor has the right and authority to employ sucn

reasonable means and agencies as be may deem necessary to enable him

to satisfy himself. He therefore, in my opinion, clearly had the right to

employ Ellis and send him to Jacksonville for the purpose above men-

tioned, and the amount for his expenses and compensation is a legal

daim against tb~ State. (See authorities and precedentil eited in support

{)f the next proposition.)

The fact that Ellis is Sheriff of Appling county does not affect the

question, as it was no part of his official duty to make such a trip and

perform such services, and in rendering same be was acting in no official

capacity, but simply as an individual under a contract of employment

by the Governor. It is a well settled prid'ciple of law that a public officer

may be employed to render services in an independent employment not

germane or incidental to his official duties. Mechem on Public Offices

and Olhcers, 863; Throop on Public IJfficers, 487, and authorities cited

by these text-writers.



I find that a portion of the account covers the compensation of sber"

iffs, and their regular deputies, of other counties than those in which it

was apprehended that the fight would take place, for services rendered

by them out of their respective counties by direction of, and under the

employment of the Governor, and also compensation of certain persons

in like manner employed, which persons, after their employment, and in

view thereof, were summoned by the 'sheriffs of Camden and Charlton

counties to assist in preventing such fight within such counties, and in

performing such services as were thought necessary to preserve the peace

therein.

The question presented by these-fa;cts is whether the Governor is au-

thJ:>rized to make such empl~yment and compensate therefor out of the

contingent fund. The Constitution (see Code, ~5112) provides that the

Governor, "shall take care that the laws are faithfully executed, and shall

be a conservator of the peace throughout the State." The duties thus

imposed necessarily imply al)d include all the powers needful for their

performance. This canon of construction bas become axiomatic in the

law. The clause of the Constitution above quoted is both a caution and

a command, and is so obligatory on the Governor that he must employ

not only the ordinary agencies which the foresight of the Legislature has

provided, but, if they are inadequate, all the inherent authority with

which the executive head of the government is necessarily clothed for

the due performance of the duties requir!ld. In the case of U. S. vs.

McDaniel, 7 Peters, 14, the Supreme Oourt of the United States snys:

"A practical knowledge of any of the great departments of the Gov-

ernment must convince every person that the head of a department, in

the distribution of its duties and responsibilities, is often compelled to

exercise his discretion. He is limited in the exercise of his powers by

law, but it does not follow that he must show a statutory provision .for

30
everything he does. No government could be administered on such principles. To attempt to regulate by law the minute movements of every part of the complicated machinery of government would evince a most unpardonable ignorance of the subject. "\'Vbilst the great outlines of its movements may be marked out, an<l limitations imposed on the exercise of its powers, there are numberless things which must be done that can neither be anticipated nor defined, and which are essential to the proper action of the government."
This was said in a case where the Secretary of the Navy had allowed extra compensatior. to a clerk for services rendered, by direction of the
Secretary, for whieh ;10 provision had been made by Congress.
The decision in U.S. vs. Ripl~y, 7 Peters, 18, and U.S. vs. Fillebrown, Id. 28, recognize and rest upon the same doctrine as that announced in U.S. 'Js. McDaniel, supra. To same effect see 2\iilnor vs. Metz, 16 Peters, 221.
In the celebrated case of Neagle, the Attorney-General of the United States, by the authority of the President, bad instructed a marshal of the United States to take all necessary precaution to protect ,Justice Field from violence while he was in California. The order of the AttorneyGeneral to the marshal was given because Judge Terry, a dangerous and desperate man, bad threatened the life of Justice Field. T <> prevmt the execution of this threat, the Attorney-General directed the marshal to provide Justice Field with a sufficient guard, and to send to the former his uccount for the expenses incurred for approval and payment. The marshal deputed Neagle to accompany Justice Field in his travels through the State of California, and instructed him to employ such assistance as he might deem necessary to the due performance of the duty a'lsigned him. In repelling an assault made by Jl}dge Terry on Justice Field, whilst the latter was en route from an interior town to San Francisco, Neagle killed Terry, and was subsequently arrested and imprisoned therefor by a State constable bj virtue of a warrant charging Neagle with the crime of murder. The latter applied to the Circuit Court of the United States in the Northern District of California for the writ of habeas corpus, which was issued. On the hearing, the authority of the Attorney-General to issue the order on which the marshal was acting, was called in question. The Circuit Court and the Supreme Court of the United Stutes (to which the .case went by writ of error) both hel<l that the order had the same force as if it had been issued by the President. It was conceded that there wns no act of Congress clothing the President or the Attorney-General with the authority to give such an order, but both C<'Urts held that a statute making express provision fur such case wns not necessary, that the power to meet such nn emergency wns necessarily inherent in the Executive Department of the Goverllment, and that it was the duty of the Pres.ident us a conservator of the pe>tce,.and in obedience to the command of the Constitution, "that he

31
shall take care that the linvs are faithfully executed,'' to employ such measures as, in his discretion, were needful to prevent the threatened assault. They held further that in all cases calling for the exercise of Federal authority, the power of the President and subordinate officers Of the Executive Departmer.t was the same as that belonging to the executive officers of a State in cases falling within the jurisdiction of the State, and that the authority of the Executive Department of both the Federal and State Governments was ample to prevent, as well as to suppress, breaches of the peace and other threatened or attempted violations of the law in their respective jurisdictions. They decided this to be so whether the legislative department had possessed the foresight to make adequate and express provision to meet every emefgcncy which might arise or not.
The following extracts from the decision of the Circuit Court of the United States in the Neagle case (taken from the report of that case in Book 5, Lawyers' Reports Annotated, pages 92 and 93) will suffice to show the rulings of that court on the point under consideration, to wit:
"In prescribing the duties of the President in the ter.-e but comprehensive language of section 3, artiele 2 or the Constitution of the United States, which provides that 'he shttll take care that the laws are faithfully executed'; this makes him the executive head of the nation, and gives. him all the authority necessary to accomplish the purposes intended -all the authority necessarily inherent in the office not otherwise limited';" that is to say, not otherwise limited by the Constitution.
"The marshal is therefore in accordance with the decision of 'the Supreme Court already referred to . . . . . . . a peace officer so fa: as keeping the peace in any matter wherein the national powers of the United States are concerned, and as to such matters he has all the powers of a sheriff as a peace officer under the laws of the State. He is in such matters to preserve the peace and prevent and suppress breaches of the peace."
"The power and duty imposed on the President to 'take care that the laws are faithfully executed' necessarily carries with it all power and authority necessary to the accomplishment of the object sought to be obtained."
" As we have before seen, neither Constitution nor statutes can or do anticipate and point out specifically every possible right or duty to be covered and secured. They must necessarily be general."
The cuurt quotes from the case of the United States vs. McDaniel, supra, as follows:
"He (the head of the Executive Department) is limited in the exercise of his powers by law, but it does not follow th~t he must show a statutory provision for everything that he does. No government could be administered on such principles. Ther9 are numberless things which mu~t be done which can neither be anticipated nor defined,' and which are essential to the proper action of the government."

32

The Supreme Court of the United States, in affirming the decision of

the Circuit Court in that case (its decision being reported in the 135

U.S.), after quoting the clause of the Constitution which provides that

he (the President) shall take care that the laws be faithfully executed,

says:

' t-

"Is this duty limited to the enforcement of Acts of Congress or of

treaties of the United States, according to their express terms, or does it

include the rights, duties and obligations growing out of the Oonstitu

tion itself or international relations, and of the protection employed by

the nature of the government under the Constitution?"

The court then goes on to cite instances where the President and his

subordinate officers have done acts incident to the duties of the Execu-

tive Department, for which there was no express provision of law, but

which it held were legitimate and proper, and then used the following

language as illustrative of the duties and powers which are necessarily

inherent in that department of the government:

"So if the President or Postmaster-General is advised that the mails

.of the United States, possibly carrying treasure, are liable to be robbed

and the mail-carriers assaulted and murdered in any particular region of country, who can doubt the auth~rity of the President or of one of

the officials of the Executive Department under him, to make an order

for the protection of the mails and of the persons and lives of its car-

riers by doing exactly what was done in the case of Mr. Justice Field,

viz.: providing a sufficient guard, whether it be by soldiers of the army

m by marshals of the United States with a posse comitatus, properly

armed and equipped, to secure the safe performance of the duty of car-

rying the mail wherever it may be intended to go? The United States

is the owner of millions of aeres of valuable public land, and has been

the owner of much more which it has sold. Som{l of these lands owe.a

large part of their value to the forests which grow upon them. These

forests are liable to depredations by people living in the neighborhood,

known as timber-thieves, who make a living by cutting and selling such

timber, and who are trespassers. But until quite recently, even if there

be one now, there ~as no statute authorizing any preventive measures

for the protection of this valuable property. Has the President no au-

thority to place guards upon the public territory to protect its timber?

No authority to seize the timbar when cut and found upon the ground?

Has he no power to take any measures to protect this vast domain ?

Fortunately we find this question answered by this court in the case of

Wells vs. Nichols, 104 U.S. 444. That was a case in which a class of

men app11inted by local land officers, under instructions frnm the Secre-

tary of the Interior, having found a large quantity of timber cut down

from the forests of the United States and lying where it was cut, seized

it. The question of the title to this property coming into controversy

between Wells & Nichols, it became essential to inquire into the author-

33

ity of these timber agents of the government thus to seize the timber

cut by trespassers on its land. The court said: " The effort we have

made to ascertain and fix the authority of these timber ngents by any

positive provision of law has been unsuccessful," but the court, notwith-

standing there was no special statute for it, held that the Department of

the Interior

had gradually come to assert the right to

seize what is cut and taken away from them (the lands)' wherever it

could be traced, and in aid of this, the registrars and officers of the land

office had, by instructions from the Secretnry of the Interior, been con-

stituted agents of the United States for these purposes, with power to

appoint special agents under themselves, and the court upheld the au-

thority of the Secretary of the Interior.

The court, in further illustration of the power of the President (through

the Attorney-General) in performing the constitutional duty requiring

him to "take care that the laws be faithfully executed," to use the nec-

essary means and agencies for that purpose, notwithstanding the failure

of Congress to pass any law providing therefor, says:

"It has become apparent that the health of the eommunity is more

effectually promoted by hygienic and preventive means than by the skill

which is applied to the cure of disease after it has become fully devel-

oped. So also the law which is intended to prevent crime in its general

spread among the community by regulations, police organizations and

otherwise, which are adapted for the protection of the lives and property

of citizens, for the loss by thieves and assassins, for the watch which is

kept over the community, ns well as over this class of people, is more

efficient than punishment of crimes after they have been committed."

Much additional authority might be cited in support of the proposition

that the Executive Department, in performance of the high duty of

taking care that the laws shall be faithfully executed, is clothed by nec-

essary implication with all necessary authority for that purpose, even in

the absence of any express statutory provision on the subject. But the

cases already referred to are. deemed quite sufficient, especially when it is

considered that they were decided by the highest tribunal in this

country, if not in the whole civilized world.

But the action of the Governor in the matter under consideration does

not rest for support on the doctrine laid down in these cases alone. Sec-

tion 1641 of the Code of Georgia provides as follows:

"All persons employed by the Governor, for whom no compensation

is prescribed, are paid, according to his discretion, out of the money ap-

propriated therefor. If no money is thus appropriated, and the employ-

ment is indispensable, he has the privilege to pay them out of the con-

tingent fund."



This section of the Code obviously originated in the recognition by the

Legislature of the fact that the Governor, in the performance of his offi-

cial duties, and particularly in the exercise by him of all necessary au-

34

thority to guard and protect the morals and health of the people against threatened dangers, and to protect the State from public disorder and ~reacheo of the peace by lawless and brutal men, would sometimes find ~t necessary to take prompt and vigorous action under circumstances which could not be anticipated, and for which, therefore, no specific provision could be made by law. Hence, it clothes th~ Governor with all necessary discretionary power to employ as many men as be may deem indispensable to the due execution by him of his official duties where no express provision of law has been ~aade to meet the exigencies of the case, or where the provision made, if any, is inadequate for the purpose. He alone is to judge of when the emergency justifies the exercise of the discretionary power thus conferred upon b1m, and what number of persons it is indispensable he should employ to meet it. Such I take to be the plain and obvious meaning and purpose of the section referred to.
Confirmatory of this view is the fact that this provision of the Code has thus been construed by successive Executives for a long period of time. A somewhat cursory examination of the files of the executive office and of the Comptroller-General's reports, shows that the following warrants were drawn on the contingent fund during the successive administrations indicated, which preceded the first term of the present Governor:

February 16th, 1878. Amount paid E. C. Murphey for detec-

tive services in case of L. Davis, colored, Pike county . . $ 100 00

May 3d, 1878. E. C. Murphey, detective, murder case. . . . . 50 00

March 26th, 1879. E. C. Murphey, balance due for detective ser-

vices, Pike county . . . . . . . . . , . . . . . . . . . 150 00

January 27th, 1883. Crawford Parker, in case of A. H. Wil-

liams, by order of Governor. . . . . . . . . . . . . 17 30

January 27th, 1883. A. H. Perkinson, for board of A. H. Wil-

liams in Fulton county jail from ;ruly 5th to 19th . . . . . 8 70

October 8th, 1883. Charles Wiley, for expenses and allowance

to Second Georgia Battalion, attending hanging of Eastman

rioters . . .

........... ......

9l 43

October 27th, 1883. .A. B. Connolly, for expenses incurred in

attempting to capture J. Satta. . . . . . . . . . . . 11 65

December 8th, 1883. Mitchell Cargile, for coffin, hearse, and

funeral of Ransom Montgomery . . . . . . . . . . . . 37 00

(Ransom Montgomery, it is proper to state, bad, as a reward

for services rendered the State in saving a bridge on theW.

& A. Railroad, been made a ward of the State by the Legis-

lature, which passed an act providing a place for him as an

employee in the State capitol during his life, but there was

no express provision of law for his burial at the expense of

the State.]

35

July 12th, 1889. ,J. T. Holder, for services rendered by order

ofthe Governor. . . . . . . . . . . . . . . . . . . . . 56 20

November 19th, 1889. D M. Mntthews, for three months work

in librnry (this work consisting in boxing up old books nnd

removing them to other rooms in the cnpitol), to mnke room

for more valuable books and such ns were in constant use,

and other like services. . . . . . . . . . . . . . 180 00

Februry 10th, 1891. J. 0. Waddell and John Milledge, for ex-

penses as escort to Milledgeville of remains of Col. Barnett,

Secretary of State . . . . . . . . . . . . . . . . . .

14 66

February 19th, 1890. J. S. Hook, expense for same service .

5 80

January 15th, 1890. W. W. Gordon, for expenses 32 men of

Georgia Hussars at Jesup . . . . . . . . . . . . . . 131 80

January 30th, 1890. P. S. Morris, for expenses of company at

Jesup . . . . . . . . . . . . . . . . . . .

50 00

These drafts on the contingent fund serve to show, not only the con-

struction which has been uniformly given by successive Governors, of

the section of the Code to which reference has been made, but to illus-

trate the almost unlimited discretion which has been exercised by the

different heads of the Executive Department for a long period of time in

tbe use of that fund. Instances of a like use of appropriations made for

contingent expem;es during the same period of time, and for many years

preceding, might be largely multiplied if necessary. And although such

applicati'ons of the contingent fund have been known to the Legislature

for more than a quarter of a century, that department of the government

has not interposed,ibY act or resolution, to modify or change the C<?nstruc-

tion thus given by successive Executives to the laws creating and regu-

lating the usc of that fund. No rule is better settled than that executive

construction, so long acquiesced in by the Legislature, is to be taken as

a sound exposition of the law in question.

See Ed wards vs. Darby, 12 Wheaton, 206; Atkins vs. Disintegration

Co., 18 Wallace, 301; Smythe vs. Fiske, 23 Wallace, 382; U.S. vs Pugh

9\J U.S. 265; U. S. 1>8. :'\foore, 95 U. S. 763; Brown, administratrix, vs.

U.S. Book 28, Co-op. Reports Supreme Court U. S. 1079; 20 Ga., 644;

41 Ga. 157; 60 Ga. 508.

'

It follows irom the foregoing consideration, and the authorities cited,

that the Governor was clothed with all necessary discretionary authority

to make this employment, and to compensate the persons so employed

out of the contingent fund. The fact that some of the persons so em-

ployed were sheriffs does not affect the question, as the services were

rendered outside of their respectivt' counties, and as it was no part of

their official duty to perform such service.

I understand that the reml_iinder of the account is to cover compen

sation and expenses of several sheriffs for aiding in preserving the peace

of their respective counties by taking steps. to prevent this prize fight

36

therein. It is true that these were rather unusual services, and for which

no provision is made in the sheriff's fee bill, yet it was the official duty

of these officers to perform this service, and it is a well settled principle

of law that no public officer is entitled to any additional or extra com-

pensation for discharging his official duty, except that expressly pro-

vided by law. Section 3697 of the Code provides that ordinaries, clerks

and sheriffs, for the performance of public services in relation to which

existing laws provide no compensation, shall be com ,1ensated therefor as

follows: "Such officers shall state their respectwe claims in writing, and

make affidavit of the correctness and justice thereof, which ;; made out

and verified, shall be submitted to the grand juries of the Sup :ior Court,

of the respective counties at the spring term, and said granu juries may,

in their discretion, require other proof of the justice and co~re<'tness of

said claims, and when satisfied that such claims are just and correct, may

allow the sum claimed, or so much thereof as may be deemed right and

proper, and when so allowed, the ordinary of such county, or other

authority levying eounty taxes, shall assess so much with the other

county taxes as will pay the same, which, when collected ttnd paid over

to the county treasurer ot such county, shall be paid by him to the

parties entitled thereto without further order, he taking a proper receipt

therefor."

It therefore being the duty of these officers to perform these services,

and there being a law providing for their compensation by their respec-

tive counties, it is my opinion that this portion of the account is 110t such

a claim as may be paid out of the contingent fund, and that these offi-

cers must either procure their extra compensation in the manner pionted

out by iaw, from their respective counties, or through special legislative

enactment.

Very respectfully,

J. M. TERRELL, Attorney General.

STATE OF GEORGIA, ATTORNEY-GENERAL'S OFFICE. ATLANTA, GA., May 21, 1894.
Hon. W. A. Wright, Comptroller-General: DEAR SIR-Replying to your request of recent date, relative to an
account against t> e State in favor of a military company, ordered into service by a mayor, which account has been presented to you to be audited, I submit the following:
The Act of October 13. 1885 (see Georgia Laws 1884-85, page 74), provides that the mayor of a city or towr. may order out the military under certain circumstances, as is shown by the following quotation from section 9 of said Act: "Whenever any riot, outbreak, tumult, mob, or rout shall occur or be imminent, under such circumstances that timely application cannot be made to the Governor and action had thereon by him, the mayor of any city, tow~, or village in which any of said volunteer forces are located, if he has ascertained or bad

37
good reason to believe that the ordinary posse comitatus, or civil power of the county, city, town, or village, where such violation of the laws and peace of this State occurs or appears imminent, are or would be unable to promptly suppress or prevent the same, may, without first making application to the Governor, direct the commander of each company, or part of a company, of said volunteer forces, in the county or said city, towr, or Yillage where such lawlessness P.xists or is threatened, to call out and report with his command to such civil officer .to enforce the laws and I"Joeserve the peace, aml it shall be the duty of such commander and all persons composing such command to obey sueh orders.
Sention 1103(aa) of the Code provides that whenever any part of the volunteer forces of the State is called into the service of the State, all officers and soldiers. responding to such call shall be entitled to such pay, rations, and other allowances, or commutation therefor, as are prescribed for officers and soldiers of the army of the United States.
It has been the practice of the Executive Department ever since the enactment of the above named section of the Code, which was in 1878, to recognize as a legal claim against the State the accounts of military companias for services when ordered out by the Govflrnor. Aside from this practice, I think such an account is a legal claim against the State. If that is true, then since the passage of the Act of 1885, an account in favor of a military company, for services rendered, under ~. call by a mayor, under the terms of the Act of 1885, is alsd'a legal claim against the State, and therefore your duty to audit same, when properly made out and presented. It may sometimes happen that such claim should, in all equity, be paid by the county in which the service is rendered, but until a change is made in the legislation upon this subject such claim should be recognized and treated as legal claims against the State.
As to their payment, I am of the opinion that it is discretionary with the Executive, whether he draws a warrant upon the contingent fund to meet the same, or submits same to the Legislature to be provided for by special appropriation.
Yours very truly, J. M. TERRELL, Attorney-General.
STATE OF GEORGIA, DEPARTMENT OF ATTORNEY-GENERAL, ATLANTA, GA., July 12, 1894.
Hon. R. U. Hardeman, Treasurer, Atlanta, Ga.: DEAR SIR-In reply to your request of the 2d inst, to construe for
you that clause of the Act providing for quarterly payment of the school fund to teachers, apprPved December 21, 1893, relative to the repayment of the loan of three hundred thousand do'lars authorized by the fourth section thereof, I beg leave to submit the following:

38
Sectio'n 4 authorizes the Treasurer to draw on the first day of April, on any funds in the treasury, three hundred thousand dollars to pay the teachers quarterly, the same to be repaid from the school fund when the same shall be repaid into the treasury. The school fund is composed of one-half of the rental of the Western and Atlantic Railroad, certain specific taxes and dividends, tax on polls and such direct appropriations arising from property taxation as the Legislature may see proper to make. Under the system in operation relative to the payment of this fund into the treasury, the rental of the West~n and Atlantic Railroad, and the specific taxes and dividends are paid in either monthly, or as collected from time to time, and the sum appropriated from direct taxation at the end of the year or as soon as the property taxes are collected.
Standing alone, the words "the same to be repaid from the school fund when the same shall be paid into the treasury" would probably mean that the three hundred thousand dollars should be repaid from the school fund as it is paid into the treasury, but when construed with reference to the other sections of the Act, and with the obvious purpose and intention of the Legislature, as gathered into the whole Act, I think these words susceptible of a broader or more li~eral interpretation.
The scheme of the Act is as follows: On the 31st day of March of each year, or as soon the;eafter as practicable, the apportioning board shall apportion to the various counties of the State the amount of school fund in the treasury on the 31st day of March, and a similar apportionment on the 30th day of June.. 30th day of September, and 31st day of December of tlach year, but for the school year of 1894, doubtless because the net made the same to be composed of eighteen months, viz., from January 1, 1894, to June 30, 1895, and left it discretionary with the County Boards of Education to operate the schools any time during these eighteen months, the treasurer was authorized to make a loan of three hundred thousand dollars on the 1st day of April, 1894, to the school fund from any other fund in the treasury to be apportioned on the 30th day of June or at the time of the first apportionment- after April, 1st and used in making the quarterly payments for the quarters ending June 30th and September 30th. The Legislature certainly being aware that at the time of the second and third apportionments, viz, in June and September, there would be a smaller amount of the school fund in the treasury than at either the first or fourth apportionments, and for that reason in counties where the schools were operated during the first six months of 1894, the quarterly payments to teachers would necessarily be small. To meet this contingency the Legislature provided for this loan of three hundred thousand dollars, that being considered sufficient to equalize the payments at the O.ifl'erent quarters. To repay the same as the school fund is paid into the treasury would leave only the three hundred thousand dollars to be apportioned on J nne 30th, and would practi ~ally amount to a loan of only one hundred and sixty thousand dollars, as the sehool

39
fund which was paid into the treasury from April 1st, to June 30th, I understand to be about one hundred and forty thousand dollars. It would leave nothing to be apportioned September 30th, as the fund paid in from June 30th to September 30th would not be sufficient to cancel the loan. Inasmuch as the board apportioned this three hundred thousand dollars in connection with the first quarter, if the loan should be repaid as the fund come8 into the treasury, there would be nothing left to be apportioned either for the June or September apportioPment. Such a construction would, therefore, defeat the manifest intention of the General Assembly by making no payment for one quarter, and, under the facts as they exist, no payment for two quarters. The last p1oviso of the fifth section is as follows: "provided further, it (anything in the Act) shall not affect the quarterly payment of teachers as by this Act directed." This seems to emphasize the intention of the lawmak;,rs as manifested by the whole Act.
For these reasons, I do not think i1. mandatory upon you to credit this loan with the school fund as \t is paid into the treasury, unless the necessities of the treasury require the same to be done to prevent a deficiency therein. Whether you repay the loan with the school fund paid in during the quarter just ended, and with that paid in during the next quarter, or wait until during the quarter in which the direct taxes are paid, is, in my opinion discretionary with you, such discretion to be controlled, as intimated above, by a due consideration of the necessities of the treasury, and also of the obvious intent of the Act, viz., to provide, as far as possible, for the quarterly payment of the teachers.
Yours very truly, J. M. TERRELL, Attorney-General.
STATE OF GEORGIA, ATTORNEY-GENERAL'S OFFICE, ATL.ANTA, December 11, 1893.
Hon. R. T. Nesbitt, Commissioner of Agriculture, Atlanta, Ga, :
DEAR SIR-Yon ask whether cottonseed meal manufactured by one corporation and consumed by another corporation in the manufacture of fertilizers, the stockholders in both corporations being the same, should be inspected, and in reply I submit the following:
The Act of July 22, 1891, providing for the inspection and analysis of cotton-seed meal declares that it shall not be lawful for any person or persons to offer for sale in this State any cotton-seed meal until the same shall have been duly analyzed by the State Chemist and inspected as now required by law in the matter of all fertilizers, etc. It is clear to me that the intention of this law is to protect the consumer from a spurious article. If one person or corporation should sell to another person or corporation cotton-seed meal before the same was inspected, such would

40
be unlawful, but where one corporation composed of certain stockholders disposes of its meal to another corporation composed of the same stockholders, and such meal is consumed by the latter corporation in the manufacture of fertilizers, which fertilizers are inspected before being sold, it is not necessary, in my opinion, for such meal to be inspected.
In reaching this conclusion, I have been controlled largely by the evident intention of the Act of July 22, 1891, and by the fact that the stockholders in the two corporations are the same persons.
Yours very truly, J. M. TERRELL, Attorney-General.

INDEX 'TO OPINIONS.

Bank Charters should be granted under Act uf 1893 __ 17

Contingent Fund, for what purpose provided_ __ _ __ 27

Contingent Fund, for what purpose provided_

32

Executive Construe t.ion, force of___ __ __ __ _ _____ __ 3;~

Executive Construction, force of___ ______ _

36

Governor has authority to employ persons to assist in preserving the peace _____ __ __ _ _ _ _ __ _ _ 27

Habeas Corpus, proceedings to discharge conYicts un-

authorized_ ___ ____ __ ___

__ _ _____ 16

In: pection of cotton-seed meal_ ______ ___ ___ ____ ___ _ 38

Military serving under order of mayor, entitled to com-

pensatimL

__ _ ___ _ _ ___ __ ____ ___ _ __ ___ 35

Office, essential elements of___ ___ ____ _ ____ ___ 14

Officer;.; entitled to com pen;.;ation for services not ger-

mane to official duties

__ ___ _ _ 27

Prize-fightingiB criminal offence _______________ _ 21

Prize-fighting, Governor has authority to prev,~nt ___ _ 22

RPJWals by implication may be had under Constitution 18 Substitution of ;.;tockholden; in charters of railroad
companies, no fee neces;.;ary ___ _____ ___ __ __ ___ 20

Street railroad charters, how granted_ ____ __ ___ 19

School fund loan to be paid from fir;.;t money received

by Treasurer ____ ______ _ __

__ ____ __ ___ 36

Teachers' Act for quarterly payment cmHltrued __ __ __ 3 6