The ninth annual report of J.M. Terrell, Attorney-General of Georgia

THE NINTH ANNUAL REPORT
OF
]. M. TERRELL,
Attorney,.General of Georgia.
OCTOBER, 1901.
OEO. W. HARRISON, STATE PRINTER. ATLANTA

REPORT.
State of Georgia, Attorney-General's Office, Atlanta, Octoberr 23, 1901.
To His Excellency, Allen D. Candler, Governor:
Sir:-I beg to submit the following report touohing matters of public interest connected with the AttomeyGeneral's office during the past year, deemed of sufficient importance for publication:
SOUTHER:N EXPRESS COl\fPANY C'ASE.
At the date of my last report this case was pending in the United States Supreme Court. It involved the quest.ions as to whether an express company could add to the prescribed rates the cost of the revenue stamp without violating the rules and regulations of the Railroad Commission fixing the maximum rates that eocpress companies may charge on irn:tra-sta.te shipments, and whether the Commission! has authority to require express companies to pay for such stamps. The case was argued in that Court last February by Col. Frank H. Miller and Hon. W. K. Miller for the stockholders of the Southern Express Company and myself for the Railroad Commission, but no decision has yet been rendered. In view of the

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fact that shortly after the case was argued Congress repealed that provision of the Revenue Act which imposed the stamp tax upon express receipts, the Court will hardly ll'ndertake tthe decision of the questions presented by the record.
TAX O.N EMIGRANT AGENTS..
The case of vVilliams 'V. Fears, 8heriff, et al., was also pending on writ of error to the Supreme Court of Georgia at the date of my last report. This case involved the question as to the constitutionality of paragraph 10 of section 2 of the General T 1ax Act of 1898, levying a tax Df five hundred dollars upon each emigrant agent for each county in which the busine8s is conducted. The case \vas argued last October by Ron. James Davisot1. for vVilliams, amd myself for the State, and on the 10th day of December, 1900, the court rendered a decision affirming the State Supreme Court and sustaining the constitutionality of the Act. This case will be found reported in 179 U. S. 270, the following being the head-'Ilotes of the decision:
"By a general revenue act of lthe State of Georgia, a specific tax was levied upon many occupations, including that of 'emigrant agent,' meaning a person engaged in hiring laborers to be employed beyond the limits of the State. Held that the levy of tlw tax did not amount to snch an interference. with 'the freedom of transit, or of co1ltract, as to violate the Federal coostitution.
"Nor was the objection tenable that the equal protection

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of the. laws was denied because the business of hiring persons to labor within the Staltet was not subject to a like tax.
"The imposition of tl1e tax fell within the distinction between interstate commerce, or an instrumentality thereof, and the mere incidents which may attend the carrying on of such commerce. These labor contracts werre not, i:n themselves subjects "of ltJoaffic between the States, nor was the business of hiring laborel'S SO immediately connected with interstate transportation or interstate traffic that it could correctly be said that those who followed it were engaged in inter;;tate commerce, or that the tax on that occupation CO!Ilstituted a burden on such commerce."
THE PUBLIC PROPERTY FUND CASE.
In :March, 1900, Hon. W. J. Speer, State Treasurer, requested me to advise him whether or not he was authorized to pay any of the money in the trea;;ury, arising from the sale of public property, upon school warrants, and on :March 31st, 1900, I advised him in writing to the effect that section 5 of !J:he Act of 1893, providing for quarterly payment of teachers, and the Act of 1897, authorizing the treasurer to draw on any funds in the treasury to the amount of $400,000, to be used in paying the teachers as provided by law, furnished him sufficient authority for transferring temporarrily to the school fund so much of the money in the treasury arising from the sale of public property as might be needed to make up said sum '()f $400,000, to be used in paying the teachers as the law

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directs, provided there was en1ough left on hand to, meet the interest O'Il the public debt maturing before the property tax ~should be paid into the tre,asury the following winter.
In March, 1901, Hon. R. E. Park, State Treasurer, submitted the same question and requ~ted me to consider the Acts of 1893 and 18_})7 with refeTence to the provision of the Constitution relative to the money arising from the sale of public property. .AJfter a careful reconsideration of the question, I adhered Ito the opinion of March, 1900, for the reason that it appeared to me that the obvious intention of the Legislature, as expressed by the Acts of 1893 and 1897, was to temporarily use this money in paying the teachers and then re~pay the same the following winter with the money collected by direct taxation for the school fund. This being the legislative intent, I thought it advisable to follow the unbroken precedent of the Attorne~y-General's office, so far as I could learn, and treat as constitutional those Acts of th<. I.egislature until the same had been dedared null and void by the courts, and especially so as the courts were open to any bondholder who might feel that his security was thereby jeopardized. \Vbile I li:hought these Acts would amply protect the treasurer, as requested by him, I carefully considered same in conrr1ection with the provision of the Constitution relative to this ;fund, and reached the conclusion that these Acts, construed so as to apply to this fund, did not contravene the Constitution, and so advised the treasurer on March 25, 1901.
Some weeks later your Excellency issued, and the

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<Comptroller-general countersigned, 143 school warrants, which were duly presented at the treasury for payment} which was refused by !the treasurer upon the ground that there was not sufficient money on hand to pay same without using the fund arising from the sale of public propert,y, and that the law authorizing and directing the treasurer on the fil'St of April to draw on any funds in the treasLiry to pay school warrants to the amount of $400,000 did not apply to the public property fund for the reason that :the Constitution provides that the proceeds arising from the sale of public property "shall be applied to the payment of the bonded debt of the State, and shall not be :used for any other purpose whatever, as long as the State .has any existing bonded debt," and that the applica.tion -of that legislation to this fund would be contrary to such -constitutional provasion. In accordance with your Excellency',s directions, I presented to Hon. J. H. Lumpkin, judge of the Superior Court of the Atlanta circuit, a petition for mandamus in behalf of your Excellency against :the treasurer. Judge Lumpkin, being the owner of some :State bonds, held himself disqualified, whereupon I presented the petation to Hon. John S. Candler, judge of the .Stone Mountain circuit, who granted the alternative writ of mandamus, and ordered the treasurer to show cause ten days thereafter why the writ should not be made absolute.
The petition and the demurrer and answer thereto were heard by Judge Candler on the 2d and 3d days of May, and a judgment rendered by him on the 4th day of May, making the mandamus absolute. The case was then taken

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to the Supreme Court by the treasurer, where it was argued on the 23d day of May, and on the 12th day of June a decision was rendered by a majority of the court, reversing the judgment rendered by Judge Candler making the man-damus absolute. Justice Le:w~s filed a dissenting ()pinion, concurring with Judge Candler. The opinion of Justice Cobb, representing the views of the majority, and the dissenting opinion of Justice Lewis will be found on page 647 of 113 Georgia Report. Under this decision "the General Assembly can not authorize the temporary use of this fund or give any direction whatever to i1s. application, or use, in any way except to pay the public debt. It will be noticed, however, that the court does not pass upon the question as to whether or not. the Legislature may direct it5 application to the payment of interest on the public debt. Should the General Assembly decide that it was not desirable to keep this fund, which is now approximately $450,000, in, the treasury for about fifteen ye-ars to await the maturity of the bonded debt, so as to apply the same to the principal thereDf, the question is still an open one as to the right of the Legislature to apply it to the payment of interest on the bonded debt, and in that way a fund may be created without an increase in the tax rate upon "\vhich the law relative to the payment of teachers could become effective. A precedent for such legisla.tion was established in 1882, when some of the proceeds of the sale of the Macon & Brunswick Railroad were appropriated to the payment of interest on the public debt. An inspection of the House and Senate journals for that year will show that the bill making the appropria-

tion wa,; pa&>e<l by both branche~ 1rithont objection. Should the Uenera1 Assembly sec proper to enact any legislation in this direction, and pass the same in the early p:1rt of tho present :oession, the question of its const,itutionality might easily be determined before the adjournment thereof, or certainly before tho maturity of tho Jannary interest.
IL\.TLHOAD TAX CASES.
I~a:'t spring the comptroller-general submitted to JIW the question as to whether the Georgia Railroad auu Banking Company >ras liable for taxes upon certain shares of the capital stock of tho \Vestern Railway of Alabama which it held and owned. Upon investigating the fact,; I found tliat in 1875 the \Vestern Hailroad of Alahauw, being a line of railroad from \Vest Point, Georgia, to Selma, ;\labawa, was pnrelwsed at foreclosure sale by the Gcorgia Railroad mHl ]3anking Company and the Central Railroad and B:lllkiug Compmty Hnder authority of an Ac of the General "\5sombly of Georgia, approved February 27, 187 .J, mHl that the,~e two compa~ies went into pos~ession of the \'(estcm Hailroatl of Alabama and operatd the sawe for a nnmlJer of year,; as tena:nts in COHHnoll, withoHt all.'' ful'tlH'l' 01 other charter, all(] without, orgauiziug tho .3allt<' ilS a separate cmpon1tion; thnt i11 11-lt\1 tlH~ owners of the \\'estern Railroad of },Jaham<l, Yiz., tlw :<aid (;corgia aucl Contml Hailron<l Companies, organized a corporntion nnder the lal\':3 of .c\lnbnma, lmmnt a~ the 1\'('ctcm Hailwn,Y of Alabama, for tlte p11rpose of opemt111,!!' ':1111(', :mrl is~ued ;)(),(){\() "hill'('" of .:toek in ~nch ('0l'fl0-

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ration-15,000 shares of the par Yalue of $1,500,000 to each of said Railroad Companies; that in 1881 the Georgia Railroad and Banking Company was leased for a term of ninety-'lline years, and that this lease is now owned and controlled by the Louisville & Nashville Railroad Company, a Kentucky corporation, and the Atlantic Coast I~ine, a Virginia corporation, and under its term the lessee<t agree to pay all taxes required of the Georgia Railroad and Banking Company.
After a thorough investigation of the questions inYolved, I reached the conclusion that shares of stock in a foreign corporation, held by a resident of Georgia, were subjeCit to taxation as against such resident in the same manner as other personal property, and that as the Georgia Railroad and Banking Company was a Georgia corporation owning shares of stock in the Western Railway of Alabama, it was liable to the State for taxes thereon, and I so advised the comptroller-general. That officer then proceeded to take the necessary steps for the collection of such taxes as were due thereon, and the I~ouisville & Nashville Railroad Company and the Atlantic Coast Line Company filed a bill against him in the United States Circuit Court alleging. that the enforcement of the tax would take their property without due process of law and deny to them the equal protection of the laws in violation of the 14th amendment of the Consti'tution of the United States, and that the attempt to collect said tax is illegal and void for the following reasons, to wit:
"1. Because there is no law in the State of Georgia authorizing the ta:leation o:f.railroad shares of stock in the hands of the owners thereof.

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"2. Because, under the law of the State of Georgia, shares of railroad stock are mere representations of the railroad property itself, and such property must be taxed under the laws of the State of Georgia for the taxation of railroads where located in the. State of Georgia, and where not located in the State of Georgia is not subject to be taxed by the State of Georgia.
''3. Because if taxes were levied upon this stock, the property which it represents being loC'ated in the State of Alabama, the result would be taxation by the State of Geor gia of property located in the State of Alabama, which is illegal.
''4. Becau:::e the said State of Georgia doth not tax under its laws railroad shares issued by railroad corporations of the State of Georgia, but recognize the same as mere certificates of iTitNest in the railroad property which is itself taxed, and there is no law of the State of GeQrgia creating any other or different rule for railroad shares issued upon properties lying without the State of Georgia."
I have prepared the comptroller's defense, and am ready for the hearing of the case, which will be had during X ovcmber.
The liability of the Central of Georgia Railway for ta..xes upon the other half of the capital stock of the Western Railway of Alabama involves not only the same questions, but an additiO'llal feature, which may be adjusted by the comptroller-general and the officers of that company should the court decide the other questions favorable to the State's contention. The facts as to the Central are somewhat different. The stock was not issued to that

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company, but to the Central Tru:ot Company, of X ew York, in whose name it now stands, as security for an issue of bonds of ifhe Central of Georgia Railway Company-the latte:r holding a w:ritten obligation of the Trust Company to transfer such stock upon the payment of the bonds and authorizing the Railway Company to vote the stock and collect the dividends thereon until ddanlt on the bonds. Theae facts, in my opinion, Yest the ( 'cntra I of Georgia with such au intetc,.;t in the stock a~ would make it subject for ta?'e'.;; thenmt-at lna:<t to the valne of the equitable inte,rcst it holds.
There is another case of the Loni~,ille & Xa,-!tvilic Railroad Company against tlw comptroller-general pending in the United States Circuit Comt, in \Yhich an in-
junction is sought against fi. fas. i-sned by the compttollct-
gencral against the Georgia Railro:ul and Banking Company for State, eonnty and nnmicipal tnxes npon ij;:\:)8,000 of Atlanta & \\Test Point <lehenture,s formedy held and owned hy the Georgia Rnilroad and Banking Cmupan.Y and tnm,ferred by it on FcbJ'uary 8, 18\Hl, to the LonisYillt' & Xaslnille Railroa<1 Compmt.Y, thr: holdl'r at that tinw of the lca~P of tho (}l:orgia Raihoad and Banking Compan.Y, with the cxpres~ agreement that the debentures were to be tran~ferred to the Georgia Rnilrond and Banki'ng CompanY at the expiration of it~ lease~. The:;;e dchentnn'3 lta<l siitrc their isme been regnlarly rdmned by the Georgia Hailroad for taxe:; until 18\Hl, aml were 110t returned that year on account of thi,; tr;m,;fet. The matter wa:< rrfprrerl to me h: the eompttolhr-gl'neral, and T adYi~c'rl ltittl to i""liC' the ji. fils., a~ in lll,Y opinion the

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Georgia Ra:ilroad was certainly liable for the 1899 taxes, inasmuch as the transfer was made on Fe,bruary 8, 1899, allld the date fixed for the return of property for taxes in 1899 was the first day of February. The liability of the Georgia Railroad for taxes on these debentures for 1900 and future years presents a much more setrious question, but as it still has an interest in 1them, and denied all liability for 1899, or any other year, I thought it advisable to have all the questions involved settled by the courts. The Louisville & Nashville Railroad Company contends in the bill filed against the compt,roller that the title to the debentures vested in it when the same were issued by the Atlanta & West Point Railroad Company, as it. was the lessee of t:he Georgia Railroad and B'anking Company, the owner of the stock upon which the debentures were issued as a dividend, and thaJt the date of the written transfer is immaterial. IVe hope to differentiate the case from that of Millen v. Guerrard, in 67 Ga. 284. I have pr-epared the case for trial, and will probably be able to dispose of it during the next month.
BRANCH BANK TAXES.
'The case of the Farmers and Merchants Bank of Senoia v. A. H. Brock, Tax Collector, et al., pending in Jackson Superior Court at the datrf:e of my last report, was argued before Hon. R. B. Russell, judge of the westm'll circuit, during the last term of Jackson Superior Court, bnt his. decision has not yet been rendered. The General Assembly at its last session provided a plan for the taxation of

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branch banks which will prevent the question involved in this case arising again so long as the present plan is of force.
OTHER TAX OASES.
During the last year I have represented the comptrollergeneral in a number of tax cases before the courts and in several cases before the boards of arbitration selected to assess property for taxation, but they are not, deemed of sufficient general interest to require special mention. In all cases where taxes have been collected by lit.igation I have had the payments made directly to the comptrolle.rgeneral or to the State treasurer.
CAPITAL OASES.
During the past year I have, in obediell'ce to the constitutional requirements, represented the St,ate in the following capital cases:
October Term, 1900.
Pritchett v. State~Oherokee count,y. Sentence, life imprisonment. Judgment affirmed.
Chub Wall v. State-Rabun county. Sentence death. J udgmcnt reversed.
W. H. Fordham v. State-Laurens county. Sentence life imprisonment. Judgment affirmed.
Jackson Stanley v. State~Laurens county. Sentence life imprisonment. J udgme:nt affirmed.
Ed Knox v. State-Franklin county. Sentence, life imprisonment. J ndgment reversed.

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Tom Fullm- and Doc Fuller v. State-Meriwether county. Sentence, life imprisonment. Judgment affirmed as to Tom Fuller. Revensed as to Doc Fuller.
Jim Hambright v. Sta:ter--Oglethorpe county. Sentence, life imprisonment. Judgment affirmed.
Joe l\fackey and Smart Mackey v. Stater--Montgomery county. Sentence, life imprisonment. Judgment reversed.
Joe Roberts v. State--\Vorth county. Sentence, death. Judgment reversed.
Bill Young v. State-Henry County. Sentence life imprisonment. Judgment affirmed.
Prince Allen v. State-Bibb county. Sentence life imprisonment. Judgment affirmed.
March Term, 1901.
Richard Sanders, Andrew Davis, William Hudson, :Sam Baldwin, Arnold Augustus v. State--Screven county. .Sentence death. Judgment affirmed.
Tones v. State--Glynn county. Sentence life imprisonment. J udgrnent revensed.
Griffin v. State-Glynn county. Sentence death. J udgment affirmed.
Ike Tuggle and Roach Tuggle v. Stater-Walton county. Sentence death as to Ike Tuggle, life imprisonment as to Roach. ,Judgment affirmed.
Ed Knox v. Stater-Franklin county. Sentence life imprisonment. Judgment affirmed.
Minder v. State-Bibb county. Sentence death. Judgment affirmed.

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Barnes v. State-Chatham county. Semtence death.. Judgment affirmed.
Carroll v. State-Bibb county. Sentence death.. Judgment affirmed.
Ayres v. State-Johnson county. Sentence life mlprisonment. Judgment affirmed.
Dixon v. State-Johnson county. Sentence life lm-prisonment. Judgment reversed.
Brooks v. State-Chatham county. Sentence deat.h. Case not yet decided.
Prince Allen v. State--Bibb county. Sentence life imprisonment. Judgment not yet rendered.
Williams v. State----<Carroll county. Sentence death.. Judgment not yet rendered.
Downing v. State--Dooly county. Sentence life Imprisonment. J udgmellt not yet rendered.
Laws et al. v. State---Henry county. Sentence life im: prisonment. Judgment not yet rendered.
Pete Harris v. State-'\Valton county. Sentence death.. Judgment not ye't rendered.
Jim Reeves v. State-Dodge county. Sentence death. Judgment not yet rendered.
v. Julia Anderson State-T'attnall county. Sentence life
imprisonment. Judgment not yet rendered. Enos Knight v. State--::Meriwether county. Sentence'
life imprisonment. .Tudgmen:t not yet rendered.
Mitchell Taylor 'V. State--Muscogee county. Sentence>
life imprisonment. .Tudgment not yet rendered. Jim Hoxie v. State---Floyd. county. Sentence life im-
prisonment. J ndgment not yet rendered.

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John Robinson v. State--Laurens ~ounty. Sentence D.eath. Judgment not yet rendered.
Haywood v. State-Richmond county. Sentence life imprisonment. .Tudgment not yet rendered.
J\HNDRR V. THE STATE.
]\finder was convicted of murder in Bibb Superior Court, and the judgment refusing him a new trial was affirmed by t,he' Supreme' Cou:rlt. He then obt:ained a writ Df error from the, Supreme Court of the United States, returnable to the present term thereof, and the case: i<J now pending in that court. The Federal question sought to be made grows out of the refusal of the Superior Court to continue the case on account of the absence of certain material witnesses residing in Alabama. It was shown that the witness had been subpcenaed and refused to attend court upon the advice of their counsel in Alabama that there was no la:w requiring them to lea,ve their State to attend as '~itnesseH a court of another State. The <:ourt refused tD continue the case, as it had no llUthority to send for such witnesses or compel their attendance. It is claimed that the failure of the law of this State to provide a method for compelling the attendance of witnesses from beyood the jurisdiction of the State, or for obtaining the deposit,ions of such witnesses and allowing them to he introduced in evidence in behalf of a person charged with crime is a denial to such person of the equal protection of the la:ws, and his conviction underr such qjrcumstances would be depriving him of life or libert,y, as the ca8e may be, without due proc8'8s o law, in violation of

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the 14th amendment of the Constitution of the United States. Unless the case is advanced it is very doubtful about it being reached for argument before the October term, 1902.
OFFICIAl.. OPINIONS.
During the last year I have furnished the different departments qwite a number of official opin.ions-many of them being upon questions passed upon either by a former attorney-general, or myseH. For the convenience of the several departments I suggest that the various opinions heretofore rendered by the attorneys-general be publ~shed in pamphlet form.
Respectfully submitted, J. M. TERRELL, At:torney-General.