Annual report of J.M. Terrell, Attorney-General of Georgia

ANNUAL REPORT
0~'
J. M. TER.RELL
ATTORNEY-GENERAL OF GEORGIA.
OCTOBER, 1888.
ATLANTA, GA.: Geo. W. Harrisvn, State Printer.
1898.

REPORT.
ATTORNEY-G.KNERAL's OFFICE,
AT.LANTA, GA., Oct. 26, 1898.
'l'o If is E::ccellency, William Y. Atkinson, Governor.
Sil' :-I beg to submit the following report touching lllatters of public interest connected with the Attorney-(~eneral's office during the past year, and deemed of suffi<:ient importance for J.mblication:
RAILROAD COMMISSION CASES.
At the date of my last report there was pending in the Supreme Court of this State a hill of exceptions to the judglllent o- the Superior Court o- Laurens county sustaining the llemurrer in the case of the State v. \Vrightsvilfe & Tennille Railroad CompaHy. This case arose from a failure of the \Vright\'Ov-i1le & Tennille Railroad Company to obe~y Rule 32 of the Railroad Commission. The principal question vresented by the pleadings was whether the Hailroad Commission had the power under the law to compel a railroLld to issue a through hill of lading beyond the terminus of its own line. Rule 32 was construed by the CommiE'sion as covering this question, and upon the refusal of the \Vrightsville & Tennille Railroad Company to issue such through bills of lading to shippers along its line, unless the shipments were made over the line of the Central of 'Georgia R,lilroad Company, tho Commission directed the

filing of a suit to recover the penalty of $5,000 for violation of Hule 32. The llefcndant demurred to this snit upon tho ground that the Hailroad Commission had no right to require the issuing of through hills of lading to. points beyond its own terminus. This demurrer was sus-
tained by Ron. ,J no. C. Hart, ,Judge of the SupE>rior Courts
of the Ocmulgee Circuit, at the July Term, 18!)7, of Laurens Superior Court, and on June 7, 1898, the Supreme l.'ourt affirmed this judgment in the following language:
"There is no law which confer,; upon the Railroad Uommis,;ion of this State the power to compel a railroad company to make a contract for the shipment of goods beyond the terminu,; of its own. line, or to issue a through bill of lading, binding such company so to do; nor is the fact that a railroad company actually contracts for the shipment and deliYery of goods beyond its own terminus to a designated point, and issuE's bills of lading accordingly, wht>n the same are routed ovt>r a particular one of its connecting lines, to be treated as unjustly discriminating against anotht>r connecting line, because the company first mentioned refnsPs to is,;ue through bills of lading for the shipments over the latter of goods consigned to the same point of destination."
In vi ow of this decision, I respeetfully suggest that the law be so amended as to confer this power upon the Railroad Commission.
There was also pending in tht Supreme Conrt at the date of my last report a hill of exceptions filed by the Central of Georgia Railway Company to the jndg-nwnt rendered by llon. :Marcus \\T. l~eck, Judge of the Sn}wrior Conrts. of the .Flirrt Circuit, at the August Term, 18\J7. of Monroe Superior Court oYerruling the dennurPr in the ease of the State 'V. Central of Georgia Hai1way Company. This wa~ a suit brought in ~lonroe Superior Court by direction of
the Hailmad Commission to recover the preseribetl penalty for failure of the Central of Georgia Railway Company to comply with an order of the Commission rebtive to the erection of a new freight all(l pa,;slmger depot at }'orsyth..

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The defendant filed a demnrrer to this suit upon the grounds that the Superior Court of ~Monroe county did not have jmisdiction of the action; that the Railroad Commis,;ion did not have authority to pass an order requiring the location and erection of depots; that the Act of October 28, 1S8!J, \Yhich sought to confer that power upon the Commission \Yas unconstitutional, in that it contained subjectmatter different from its title and injected into the original Hailroad Commission Act matter not covered by the title; that the Act of 18!H, amendatory of the title of the original Commission Act amended onl~' its title, and therefore did not cnre the defect in the Act of 188!); that the original Commis,;ion Act was embodied in the Code of 1882 and therefore no amendment could he made to that Act Pxcept h;' an amendment to the Code of 1882; that no pen!alty was prescribed for violation of the orders of the Commission with reference to the establishment of depots, and that the "\ct conferring the authority upon the Commission t~ order the erection of depots is contrary to both the Constitution of the l~nited State and the State of Georgia, in that it deprived the <lefendant of its liberty and property without due process of law. The questions ,arising under this bill of exceptions were argued at considerable length before the Supreme Court in J\.Iay, 18!)8, by ~lessrs. Hall & Boynton, Messrs. Lawton & Cunningham and Hon. ~Washington Dessau for the plaintiff in error, and myself for the State. l'pon the argument both before the Superior Court and Supreme Court, I took the position that notwithstanding the unconstitutionality of the Act of 1889, by reason of the defect in its title, the Commission had the power, at the time the depot was ordered to be erected' at Forsyth, to make such an order as the provisions of the unconstitutional Act of 188!), which sought 'to confer such power on the Commission, had been codified in the Code

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of 1895, which had been adopted as the Code of Georgia: by the Act of December 16, 1895, and that the effect of this .1\..ct was to make as part of the statute law of the State allnevv matter embodied in the Code which could be constitution:ally enacted by the legislature.
This contention brought before the Court for adjudication the question as to whether or not the provisions of our constitution as to the title and subject-matter of an Act and
the reading of bills on three separate days in each Housewere such as to prevent the Legislature by one Act from adopting a Code of laws. The many changes in the Code of 1895 and the incorporation therein of many statutes which were unconstitutional by reason of defective titles,. or upon the ground that the same contained more than one subject-matter, rendered this the most important question that had been before the court for determination in man:v years. On July 27th the court reversed the decision of Judge Beck upon the first ground set out in the demurrer, viz., that the Superio Court ~>f Monl'"e GHn,iy di<l not have jurisdiction of the suit, but sustained his position upon all of the other grounds of tlw demurrer, and in a yer; able and well-considered opinion by Mr. Justice Lewis,. settled the question 'as to the status of the Code of 1895.. The following being the head-notes of the decision:
"1. If a railroad company of this State refuses to comply with an order passed by the Railroad Commi1ilsivners requiring it to erect a depot building in a given town or city through which the line of its road passes, such refusal, in contemplation of law, is at the company's principal office, or place of business; and conse- quently the superior court of the county in which that office is located, and it alone, has jurisdiction of an action by the State ,against the company for the recovery of the penalty incurred by the company in refusing to yield obedience to such order.
"2. The intention of the Act of December 16, 1895, adopting the present Code, and making same of force as the Code of Georgia, is to enact into one statute law all the provisions embraced in. that Code.

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"3. This Act is not unconstitutional, because it did not incorporate in its body the yarious sections of the Code ; nor because those sections were not read three times and on three separate days in each House of the General Assembly before the passage of the Act.
"4. The Act in question does not, within the meaning of article 3, section 7 and paragraph 8 of the Constitution of C.eorgia, refer to more than one subject-matter, nor does it contain matter different from what is expressed in the title thereof.
"5. The effect of this Act is to make as part of the law of the State all new matter embodied in the Code of 1895, which could be constitutionally enacted by the Legislature.
"It follows, therefore, tha(an Act, though unconstitutional as originally passed, on account of containing matter different from what was expressed in its title, if otherwise constitutional, became valid law by its incorporation in the present Code, upon the passage of the Act first above mentioned."
Under section 2196 of the Code a penalty of $5,000 is prescribed against any railroad company doing business in this State for a violation of the rules and regulations of the Commission, which may be recovered by suit in the Superior Court of the county where such violation has occurred or wrong has been perpetrated. This section is construed by the Supreme Court in the above mentioned case as not authorizing the bringing of a suit against a company in the county where the depot is ordered by the Commission to be erected, unless the home office of the company is located in such eounty, for the reason as stated in the opinioit of the court by Judge J_,ewis, that the "wrong was perpetrated by the company through its pl'incipal officer, who fa:iled or refused to obey the order in question. The violation therefore occurred in the ~ounty where the company's principal office 1is located, and there the wrong was perpetrated." Every good reason in favor of fixing the venue of suits for violation of orders of the Commission as to ov&charges of freight and similar orders in the county where the order is violated by making the overcharge or other similar Yiolation exist in favor of

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fixing the Yenue of suits for the failure to comply with an order as to the building of a depot in the county where snch depot is to be erected. The expense to the State of a trial in tho Superior Court of tho county where tho depot ris ordered built would be much less in most cases than in the county of the home office of the company, and to the defendant the expense would be less in a greot many cases and only in rare instances would it be more. In cases where the reasonableness of the order is called in qnestifln, the witne-se~ t" Ru:;tain the :wtion of the Commission, who arc generally residents of the county where the depot is located, \You1d haYe to be carried to the county of the home office of the company, or be examined by written interrogatories, which is usually unsntisfactory in such cases. I therefore respectfully recommend that section 2196 of the OiYil Code be amended so as to fix the Yenue of aU suits brought by the direction of the Commission for violation of its orders, requiring the erection of depots, in the county where the order us to be executed.
NORTHEASTER~ RAILROAD.
The suit in Fulton Superior Court against the lessees ancl their sureties for $R,060, tho amount of the rental due the State at the time of the seizure o.f the Northeastern railroad by the governor for non-payment of rental, has not yet been disposed of. The case has not been reached in its regular order upon the docket, and I have not sought to advance the heaning as provided by section 24 o Volume 1 of the Code, for the reason that I have been notified that the defendants would pet1ition the General Assembly at the approaching session to grant them relief by allowing certain equities claimed by them which the courts would have no authority to allow.
The proceedrings in Clarke Superior Court under which

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a receiver of the lessees was appointed, and in which I intetTened in behalf of the State, claiming that the State was entitled to preferential payment out of the assets of the les~ees, will he IHard at the October adjourned term of that court to be held during December next. Employees of the lessees engaged in operat,ing the S ortheastern railroa(l immediately prior to its seizure by the State claimed a preferential lien on these assets. After a thorough inTestigation of the questions involved I feel quite sure that the contention in behalf of the State will he sustained. I make this statement fur th( l'(':lRou that I have leamed from the attorneys of these employees that a petition will he presented to the General Assembly asking that the Stat(; withdraw the claim made to the assets of the lessees in the J1ancls of the recetver.
PRISON COlVll\IISS;:o~ CASE.
Last April the Southern J\Iining Company filed a petition in Fulton Superior Conrt against \V. B. Lowe and the Priwn Commission, by which it sought to restrain the Commission from entering into a contract with \Y. B. Lowe nnder a bid submitted by LmYe for a certain number of conYicts, upon the ground that the Southern ~fining Company 1vas interested in the hid made by Lowe, and for that reason daimed that the Commission should contract with it for a portion of the convicts. I filed a demurrer, in behalf ()f the Commission, to this petition, which was sustained by Ibn. J. II. Lumpkin, judge of the Atlanta Oircuit. The case was then taken to the Supreme Court, where the judgment rendered by Judge I,umpkin sustaining the demurrer, was affirmed on .Tnly 24, 1898; the tollowing mnrrer, was affirmed on July 24, 1898. The following being the head-note to the decision, which states fully the -questions involved and decided:

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"The writ of injunction does not, under any circumstances or at the instance of any person, lie against the Prison Commissioners of this State to restrain them from entering into a contract for the hiring of convicts, nor against any person or persons with whom the Commissioners are about to make such contract, when the granting of the injunction would, either directly or indirectly, interfere with the performance by the Commissioners of the duties devolved upon them by the Act of December 21, 1897, crccating a Prison Commission for this State."
The questions cinvolved in this case were of considerable importance to the State, as upon their determination depended in a large measure the control and disposition of the conVJicts which were directed to be hired under the provisions of the Act of December 21, 1897. Under this decision the Prison Commission cannot be interlered witb by injunction or restraining orders 'in the performance of the responsible duties imposed by the Act creating same.
BOWE~ et ul. 1'. CLIFTON. SECRETARY OF STATE.
By the Act approved November 9, 1897, relating to contest cases growing out of elections for the removal of county sites, it is proVJided that such contest cases shall be heard and determined by the Secretary of State. In December, 1897, an election was held in Wilcox county upon the question of the removal of the county site to Rochelle. The face of the returns made to the Secretary of State did not give to Rochelle the requisite two-thirds majority, so certain persons favoring removal instituted contest proceedings, as provided by that Act, before the Secretary of State, through their attorneys Messrs. E. D. Graham and D. B. Nicholson. Objection was made by Messrs. Butts & Lawson and J. L. Bankston, representingthe contestees, to the Secretary of State hearing and determining the contest, upon the ground that the Act wat~ unconstitutional, in that it sought to confer judicial powers upon the Secretary of State, an executive officer. The

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Secretary of State consulted with me as to his duty in the matter, and after a thorough tinvestigation of the question I thought the Act was constitutional and advised him to proceed with the hearing. Upon being notified of this advice, Bowen and other citizens of Wilcox county, the contestees, filed a petition in Fulton Superior Court seeking to enjoin the hearing of the contest by Ron. vVm. Clifton, Secretary of State, upon the ground that the Act of November 9, 1897, was unconstitutional, as claimed before the Secretary of State. Judge Lumpkin, of the Atlanta Circuit, refused the injunction, and the case wa;;; taken to the Supremo Court, where the judgment rendered by Judge Lumpkin in refusing the injunction, was affirmed. This decision having firually settled the constitutionality of the Act of November 9, 1897, the Secretary of State proceeded to hear and determinP the case, as directed by law.
PRIVATE BANKERS CASE.
Under the Act of December 21, 1897, providing for tlw examination of private banks, the Treasurer, who is p,xotficio Bank .Examiner, undertook to make the examiuation of certain private banks required by this Act, when F. J\:L Coker, Jr., and a number of others engaged in priYato banking, filed a petition in Fulton Superior Court, usking that Hon. \V. J. Speer, State Treasurer, be enjoined from making such examination, upon the ground that the Act of December 21, 1897, was unconstitutional for seYeral reasons, Yiz.: First, beoause the Act was passed by the General Assembly on a day which was more than fifty days from the meetling thereof. Second, because it contains more than one subject-matter. Third, because it applies only to persons and not to corporations engaged . in pri,-ate banking. Fourth, because it is an inya-

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swn of pr,ivate rights. Other objections were made to the Act, but these four were the principal ones insisted upon in the argument. I f.iled a demurrer on beha1f of the Treasurer, ,and the questions arising thereon were argued before Judge Lumpkin, of the Atlanta Circuit, at the March term of Fulton Superior Court, when he disposed of same by sustaining the demurrer, thereby holding the Act constitutional. The petitioners then took the case to the Supreme Court, and the bill of exceptions therein is now pending in that Court, and will be heard during the present term.
There is considerable doubt as to whether private banks can be taxed under exist,ing laws with their proportion of the salary and traveling expenses of the Bank Examiner, and if the private banks may be so taxed no provision is made for ascertaining their proport:ion of these expenses, as they have no capital stock. No good reason exists why the same should not be collected from private banks as from chartered banks. I therefore suggest that the Act of December 21, 18\17, be amended so as to make the pro\'isions of sect1ion 1923 of the Code apply to private banks.
LINTON, TAX-COLLECTOR, et al. r. CHILDS.
Some time since the Comptroller-General reque,.ted mv opinirm as to the 1iahility of presidents of National Banks in this State under the general tax act for the payment of the ten dollars profes~ional tax leYied by the seconrl section thereof upon "ewry practitiqner of law, medicine, or dentistry, president of each of the banks of the State,'' etc. This tax upon bank presidents was first 'incorporattld in the tax act in 1886, and had never been enforced against p1esidents of National banks. After an investigation of the question, I came to the conclusion that the tax was collectible, but inasmuch as there was some doubt

10) 0
and as the law had not been enfomed I thought it best to have the question passed upon by the courts, I therefore adYiscd the Comptroller-General to instruct one of the tax collectors in some county where a president of a X ational
bank resided to issue a fi. fa. for said tax and mah~ a test
case for the courts to finally determine. In accorilancc with this advice, H. H. Linton, Tax Collector of Clarke
county, issued fi. fas. against A. K. Childs, for taxes for
the years 18!)1, 1802, 1893, 18!)4, 1895, and 1896. Upon
the fi. fas. being levied Mr. Childs petitioned the Superior
Court of Clarke county for an or0er restraining the Tax-
Collector am! Sheriff from enforcing the fi. fas. upon the
grounds that the language of the Tax Act did not include presidents of X ational banks, and that if the language was broad enough to include them the Act was null and void, as it levie!l a tax upon K ational banks not authorized by the Act of Congress relative to National banks. \Yhen the petition was presented to lion. N. L. Hutchins,_ Judge of the Superior ( \mrts of the \Y e,_tern Circuit, he grant~d a temporary restraining order and set the case for a hearing. After argument by brief submitted by both sidles, J udg( ITutchins granted a perman0nt injunetion against the Tax Col1eetor and Sheriff. The case was then taken by bill oi' exceptions to the Supr0me Court, where it was argued last .Jm10, but has not yet been decided, and under a recent order of the Supreme Court will be reargued at the present term.
MERCHA="TS & TRADERS BANK.
The J\Ierehants & Tra~ers Bank of Brunswick, one of the State Depositories, failed, and 'its assets were placed in the hands of a receinr by Hon. J. L. Sweat, Judge of the Superior C'onrtf' of the Brunswiek Circuit. At the t.ime of its failure this bank, as one of the Depositories,

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was indebted to the State in the sum of $11,446.05. As soon :1s knovvledge of the bank's condition was received I went to Brunswick to investigate the assets of the bank and to take such steps in the matter as might be necessary to protect the State's interest. After investigation I was satisfied that enough money could be realized from these assets by this fall to pay off the State's claim, so I thought it unneceseary to harass the sureties with a levy of the
Executive fi. fa., which I prepared and had issued under
the Act of 1879, until the receiver was given an opportunity to realize upon the assets. Since the 'issuance of the
fi. fa. I have collected $7,000 and paid same into the
Treasury. I expect to collect the remainder by November 1st, and if it 1is not paid by that time I will proceed with
the fi. fa. against the sureties.
CAPITAL CASES IN SUPREME COURY.
During the past year, in obedience to the constitutional requirenient, I have represented the State before the Supreme Court, either by brief or orally, in the following twenty-two capital cases:
OCTOBER 1'ERM, 1897
Brooks v. State-Jackson county. Sentence death. Judgment affirmed.
Dyal v. State-Appling county. Sentence, life imprisonment. Judgment reversed.
Meeks v. State-Schley county. Sentence, life imprisonment. Judgment affirmed.
Goss v. State-Madison county. Sentence, li{e imprisonment. Judgment affirmed.
:Flanagan 'V. State-DeKalb county. Sentence, death. Judgment reversed.
vVard v. State-Walton county. Sentence, life impris-
onment. Judgment reversed.

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\Voodliff v. State-Gwinnett county. Sentence, life imprisonment. Judgment affirmed.
MARCH TERM, r8g8.
Gilreath v. State-Ohattooga county. Sentence, life imprisonment. Judgment affirmed.
Bradshaw t. State-Glascock eounty. Sentence, life imprisonment. Judgment affirmed.
Bailey and Handy v. State-Oalhoun county. Sentence, life imprisonment. ,Judgment reversed.
Stripling and Huff v. State-Harris county. Sentence, life imprisonment. Judgment affirmed.
1Iills v. State-Dooly county. Sentence, death. Judgment affirmed.
Teasley t'. State-Elbert county. Sentence, life imprisonment. Judgment reversed.
Parks t. State-Hart county. Sentence, life irnpvisonment. Judgment reversed.
OCTOBER TERM, r898.
,Joiner c. State-Bibb count,v. Sentence, life imprisonment. Judgment affirmed.
Hicks v. State-JYiacon county. Sentence, death. Judgment affirmed.
Brown v. State (two cases)-Bryan county. Sentence, death. Judgment affirmed.
Stephens v. State-Bibb county. Sentence, life imprisonment. Judgment reversed.
Flanagan t'. State-DeKalb county. Sentence, death. Judgment not yet rendered.
Smalls v. State-Chatham county. Sentence, death. Judgment affirmed.
GEORGIA REPORTS.
I have lately received a. great many letters relatiw to

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Georgia Reports being furnished county officers. Very few counties have a full set of Reports. Some clnim never to have been furnished with the earlier volumes, and others, that the books an<l records were destroyed during the war or since by the burning of the court house. There is no provision of law authorizing the State Librarian to furnish these Reports, and if there was the Librarian could hardly find enough of the earlier volumes upon the market to supply the demand, and should he fim1 them the price would be from eight to ten times as much as the State now pays for similar books, published upon the State's account undPr the Act of 187!). To meet these complaints the Librarian will, I understand, recommend the passage of a bill authorizing the repnh1ictation under the provision of the Act of 1879 of all the earlier volumes of Reports not now protected hy copyright. I desire to join the Librarian in this recommendation.
OFFICIAl, OPI~IOKS.
Since my last report I ha1e furnished the' different de-
' r partments of State a large number of official opinions, ootlt
written and oraL ork of this character has increased very rapidl.v dnring the last fe1Y years.
T beg in eoneluding this my final report to .von as Chief Exeeutin' to sa; that ;om excellent administration of tlw affairs of State <hui11g the last four years will eYer be a monument to ;om 'lisdom and faithfulness to duty, and 1 am sure that, in yonr retirempnt to private life, ;on will be esteemed as one \Yho has always been true 10 G<'orgia, and devoted to the best intetest;; of het people.
Very respectfully, J. :M. TERRELL, Attorney-General.