THE ANNUAL REPORT OF BOYKIN WRIGHT ATTORNEY-GENERAL OF GEORGIA OcToBER, 1902 ATLANTA, GA. GEO. W. HARRISO)l, STATE PRINTER 1902 REPORT State o Georgia. Attorney-General's Office, Atlanta, Octi:J:ber 22, 1902. To Il?"s Excellency, Allen D. Candler, Governor: Sm :-I was appoint,ed Attorney-General on February 1, 1902, to fill the unexpired trm of tlhe lion. ,Jose,pih M. 'rerrell, resigned. With t'he exception of two important case'S hereinafter mentioned, there was practicaUy no business left unfinished by my predece,ssor, so prompt, thorough and able had been his administration of the office. The ordinary routine of business of this office, in so-far as the -same is of general interest, is sufficiently shown in the rulings and opinions given the several depar'tments of State. Some of these 'Opinions !have 'been printed, and accompany tlhis report. The only ma~uter in a'dd'ition t'hat I deem of sufficient importlanc.e to here, no;te, is the present sta:tus of the Etigwtion between the State of Georgia and tihe Louisville & Nashville Ra'ilrood Company, and "l'he Atlan'tic Coa,st Line Railrood Company. This litigati,on involves two cases, !both brought in the United S'tates Circuit Court for ,the Nortlhem District df Georgi:a. TAXING STOCK IN FOREIGN CORPORATIONS. Under advice of this office, the COOillptroller-Genernl held that t!he Georgia Railroad & Banking Coirnpany was lialble for taxes on 15,000 shares ~f stock held and OIWlled by it in the Wegtern Railway of Ala,bama, 'a railrolad ideated in the State of AlaJbattna, and he accordingly was about to is;;ue against the Georgia Railroad & Banking Company tax executions to collect these taxes. The Louisville & Nashville Railroad Company and the Atlantic Coast Line Railroad Company, as h~ssees of the Georgia Railroad and Banking 4 Company, entitled to t~he income from said shares of stock and liable, under the lease contract, for the taxes, if any, due thereon, brought their bill in the United States Circuit Court to enjoin the collection of said taxes. T:he.re being n:o controversy as to the fad's) there were presented to the court bult t1wo questions: (1) Did the complainants 'have such interest in the matter complained of as to entitle them to main.tain said bills, an:d such equity as to entitle theun to relie'f by injunction? ( 2) Whel!her shares of stock in the Western Railroad of Alabama, an Alabarrna corporation, held by t'he Georgia Railroad & Banking Company, a Georgia corporation, are taxa,ble as property of the latter, by the State of Georgia? Judge Nerwman, presiding in the Circuit Court, decided both of these questions in favor of the railroads, and granted an injunction against the Comptroller-General, enjoining him from issuing any execution or taking any steps to coll~ct the taxes upon the shqres ot' stock in the WeS'tern Railway of Alaibama heid by tlhe Georgia Railroad & Banking Company, in the State of Georgia. Judge Newman, in his opinion, stated the issue as follows: "It may be conceded, first, as a general proposition, that the State "has the power to treat share'S in a corporation as distinct and sepa"rate property in the ll'ands of the hoMers, should it desire to do so, "for pu11pose of taxation; and further, if suitalble legislation is en"a.cted, it may earry out this purpose. This is supported by abund"ant authority, and is not questioned, as I understand, by counsel "fo.r the complainants in this case. "Cook on Stocks and Stockholders, 563. "Tennessee v. Whitworth, 117 U. S. 129. "Conceding tHis to be true, however, the real contention of coun"sel for complainants here is, that the State is State. It must be con" fessed, therefol'e, with respect to this commodity, the State has seen proper to look alone to the domestic consumer of this article, viz.: the Georgia planter, not taking into account that other and primary object, according to the Supreme Court of the United States, viz.: the protection of the commonwealth's trade and commerce with foreign countries. But the fertilizer laws of Georgia are plain and unmistakable in confining inspection to fertilizers intended for domestic consumption; hence, all rules of construction must give way to the plain and positive language of the statute. But this is not true, as we have seen, of the oil laws, now under consideration; it was true of the oUt law which was found defective. But the evil of the old law was intended to be remedied by the new. Respectfully submitted. BOYKIN WRIGHT, A.ttorney-GeneraL 19 BOARD OF EDUCATION CAN NOT MAKE LOANS! March 14, 1902. Hon. G. R. Glenn, State School Commissioner, Atlanta, Ga. Dear Sir:-On F'erbuary 20th, at yourrequest, I furnished you with a hurriedly considered opinion to the effect that section 1363 of volume 1 of the Code of 1896, was probably broad enough to authorize a county board of education to borrow money where, in the discretion of the board to do so, was "necessary to the efficient operation of the schools." On the following day, after further investigating the matter, I expressed to you a doubt as to the correctness of this opinion, and begged that you would disregard the same for the present at least, and until I could take further time to consider it. I had at the time, as you know, some difficulty in reaching the conclusion that was expressed in my first letter to you of February 20th, but in, the interest of the efficiency of the public schools, I was willing to solve that doubt in favor of the legality of the loan in question, but fully realizi11,g that it necessitated a very liberal interpretation of the section in question. Manifestly, if such power were conferred upon the county board of education, it would greatly facilitate the efficient administration of the public schools and save the teachers from the almost ruinous rate of discount which many of them have to submit to in selling their salary scripts to local usurers for their daily sustenance during the.intervals between the day on which their salaries become due and the day when the school fund is available. But as anxious as I have been to rest satisfied with the conclusion first reached, I am unable to do so. On the contrary, the question haYing practically arisen in ViTarren county, my opinion was asked, and a fuller investigation led me to the conclusion that section 1363 of the Code did not confer upon the county boards of education the autliority to borrow money to pay the teachers. That section is as follows: "The county boards of education shall have power to purchase, lease;. or rent, school-sites, build, repair or rent schoolhouses, purchase maps,. globes and school furniture, and make all arra.ngements necessary to the efficient operation of the schools." If the county boards have the power at all, it must be derived from the last clause of the above sentence, quoted from section 1363 of the Code. The power here given to "make all arrangements necessary to the efficient operation of the schools," is, I think, to be confined to arrangements of the kind or class previously enumerated in, said section, and will not be construed to embrace the very important power of borrowing money to pay teachers. It llas been often held by our Suprem8 Court that no public official can incur obligations and bind the pulllic by any contract, unless by express legislative authority. (82 Ga. 252; 103 Ga. 503; 104 Ga. 670.) 20 Now, if the money were borrowed by the county board of education and actually spent in payment of the salaries of the teachers, I think the lender of the money would have the legal right to sue for and re-eover the amount loaned, to be collected out of the school fund when 'received by the county board of education. This would be on the idea of money had and received and used by the board for legitimate expenses of carrying on the public schools of the county, and not by virtue of the legality of the contract or validity of the promissory not~ or other obligation evidencing same. (84 Ga. 213; 94 Ga. 488; 106 Ga. "702 and 735.) But should the fund, after being borrowed, be for any cause not tWt>ually used by the board in payment of the teachers. then the lender could not subject the school fund for the payment of :mid debt, but the school fund, when received by the board, would have to be applied to the payment of the teachers and to meet th!e other exnnses of the public schools. This is precisely what occurred in the county of Warren. After the county board had borrowed the money and deposited it in the bank, the bank failed and the money was lost before it was paid to the teachers. In the 'Varren county case I do not think that the notes given to secure the money borrowed are legal and binding obligations, for want of power in said board to incur the liability in question, In the Warren county case I have reached and given the following opinion, viz.: "The loan made by the county board of education not being authorized by law, the lender will lose it unless he can recover it individually from the parties making the loan. Wh'enever a public officer having charge of public funds, deposits the same in a bank, and that bank fails, the officer and his bondsmen are responsible for the money so lost, even though they believed the bank to be perf<>ctly solvent and acted in good faith in depositing the fund in said bank. Lamb v. Dart, 108 Ga. 602, h. n. 6, and at pages 609 to 614, inclusive. But where money is illegally borrowed by a public official, that is to say, borrowed without authority of law and is lost, the bondsmen of the public officer in whose bands it was lost, cannot be held responsible. Mason v. Commissioners, 104 Ga. 35, at pages 44 to 50, both inclusive." I have the hono'l' to be, Very truly yours, BOYKIN WRIGHT, Attorney-General. PUBLIC SCHOOLS-COUNTY COMMISSIONERS INELIGIBLE TO HOLD OTHER OFI<'ICES. March 18, 1902. Dear Sir:-! am in receipt o:t' yours of March 15th, in which you ask: "Can a county school commissioner retain his office, and at the same 21 time serve as State Senator under the Constitution and laws of this. State?" In my opinion a person cann,ot legally hold both offices at the same time. The Constitution of Georgia on this subj'ect is as follows: "No person holding a military commission, or other appointment, or office having any emolument or compensation ann,exed thereto, under this State, or the United States, or either of them, except justices of the peace and officers of the militia, shall have a seat in either House." Article 3, section 4, paragraph 7, Constitution of Georjiia, vol. 2 of the Code, section 5754. It is true that the Constitution also provides as follows: "Each house shall be the judge of the election returns, and qualifications of its members." Article 3, section 7, paragraph 1 of the Constitution, vol. 2 of the Code, section 5764. I believe it is true that members of the county boards of education and county school commissioners, have frequently been. members of the General Assembly since the Constitution of 1877, and I do not know that either the House or the Senate has ever had this question brought before it. As shown above, "each House shall be the judge of the election returns, and qualifications of its members," and therefore will' have the right to interpret for itself the provision of the Constitution, which declares "that no person holding a military commission, or other appointment, or office having any emolument or compensation annexed thereto under this 'State or the United States, shall have a seat in either House;" but it appears to me that the only question left open to in quiry is whether or not the position of a county school commissioner is an "office having any emolument or compensation annexed thereto." It is clear that the county school commissioner is not only an officer. but a public officer, according to the technical definition of this term. He is elected in a manner prescribed by law, has a designation or title given him by law and exercises functions concerning the public, and is paid out of the public money a fixed salary. See, vol. 1, sections 1363 and 1376 of the Code. Bradford v. Justices of the Inferior Court, 33 Ga. 332. Coleman v. Glenn. 103 Ga. 458, at 459. Also, 72 Ga. 547. at 553. Section 223 of the Political Code declares: "The following persons are held and deemed ineligible to hold any civil office In this State, an.d the existence of either of the following states of facts is a sufficient reason for vacating any office held by such person, but the acts of such person, while holding a commission, are valid as the acts of an officer de facto: (4) Persons holding any office of profit or trust under the government 22 -of the United States (other than, that of postmaster), or of either of the several States, or of any foreign State." Vol. 1 of the Code, section 223, paragraph 4. Section 224 of the Code declares: "No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the Legislature heretofore or hereafter made; nor shall any commissioned officer be deputy for any other commissioned officer, ex~ept by such special enactment." Volume 1 of the Code, section 224. It has been held that the members of the county boards of educatior; are county officers. See Smith v. Bohler, 72 Ga. 553. 103 Ga. 459. As to the coun,ty school commissioner's office being vacated by his election to the House or to the Senate, the law is as follows: "All oflices in the State are vacated- '"(4) By voluntary act or misfortune of the incumbent, whereby he is placed in either of the conditions specified of ineligibility to oflice, which shall operate from the time the fact is ascertained and declared by the proper tribunal." Volume 1 of the Code, section 229, paragraph 4. As long as the county school commissioner continues to act, and until the fact has been judicially ascertained and determined that the office is vacant by the officer becoming ineligible, his acts .are deemed valid as the acts of an oflicer de facto. Volume 1 of the Code, section 223. Channel v. State, 109 Ga. 150. Of course, the eligibility of the candidate might be raised by proceedings to contest the election or by proceedings in the nature of quo !carronto. Very truly yours, BOYKIN WRIGHT, Attorney-General. l\IISDE:JIEANOR CONVICTS-WHEN DISQUALIFIED TO VOTE OR HOLD OFFICE. March 27, 1902. Dear Sir:-I am in receipt of your letter in whi-ch you ask: "'Vould a plea of guilty to forgery, and same punished as for a mis.demeanor, deprive one of the right to register and vote and hold seat in the General Assembly?" 1. I know of no provision in our Penal Code whereby a plea of guilty to forgery can be modified so as to reduce the offense or its penalty to 23 that of a misdemeanor. It is true, that under the Act of 1895, page 63, codified in the Penal Code in section 1036, it is provided that "on the recom.mendafi.on of the ju1ry trying the case, when such recommendation is approved by the presiding j1,1dge, certain, crimes (including forgery) shall be punished as misdemeanors." This is only where there is a trial by a jury, and where the jury recommends and the judge approves the reduction of the penalty. Where there is a plea of guilty entered by the defendant, imprisonment in the penitentiary is the only pen,alty which the law provides for forgery, so far as I am advised. 2. But suppos~e that there had been a verdict of the jury finding the defendant guilty of forgery and recommending that he be punished as for a misdemeanor, an,d the judge sentenced him to pay a fine, and the fine was in faqt paid. Then the question of law arises, would the defendant thereafter be eligible to vote or hold a seat in the General Assembly unless pardoned by the Governor? 'l'his states the case submitted by you in its most favorable light, and presents a very interesting question, in th~e solution of which I have had some difficulty, but I have at last reached a conclusion in which my mind, for the present at least, rests satisfied. That opinion is to the effect that the convicted party is ineligible to vote or to hold a seat in the Legislature. The Constitution declares the following classes of persons shall not be permitted to register, vote, or hold any office or appointment of honor or trust in this State, to wit: "Those who shall have been convicted in any court of competent jurisdiction of treason against the State, of embazzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral tmpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned." Article 2, section 2, Constitution; section 5738, Code. Of course, forgery is included within the term "any crime involving moral turpitude," and certainly was at the time of the adoption of the ~onstitutional provision quoted "punishable by the laws of this State with imprisonment in the penitentiary," and in no other way. By the Act of 1895, section 1036, Penal Code, it was provided that certain crimes (including forgery) on the recommendation of the jury trying the case, >vhen such recommendation is approved by the judge presiding on the trial, shall be punished as misdemeanors. li'orgery is one of the offenses which, under this Act, the jury has the right to recommend to be punished as a misdemeanor, and if that recommendation is approv~ed by the judge, the punishment shall be_as for a misdemeanor, but unless such recommendation is approved by the judge, the sentence, in spite of the jury's recommendation, must be imprisonment in the penitentiary. It will be seen, therefore, that even the 24 verdict of the jury does not of Its own force reduce either the crime or the penalty from that of a felony to a misdemeanor. After the verdict of the jury he stands in the strictest sense of the law, and in the very language of the Constitution, convicted "of a crime involving moral turpitude, punishable by the laws of this State with imprisonment In the penitentiary." Mr. Chief Justice Bleckley, in the case of Miller v. State, 58 Ga. 200, a case very much referred to by the other courts of this country, had occasion to discuss a question very similar to the one now under consideration. The defendant In that case was charged with cattlestealing, which, at that time, was punishable by imprisonment in the penitentiary, unless the jury recommended to mercy, in which event the punishment was that of a misdemeanor. In that case the court declared as follows: "'l'.b.at cattle-stealing may be punished as 11. misdemeanor, when, the prisoner is recommended to mercy, does not take it out of the class of offenses punishable, as a general rule, by imprisonment in the penitentiary for a time not less than two years. The latter punishment must be inflicted where the law is left to operate without being softened by a recommendation to mercy." 58 Ga. 200 (3.) At page 203 of the same decision, the court continues: "When the prisoner is liable to be punished by imprisonment in the penitentiary, the offense is a felony. And this is so pri'ma facie, even though there may be a discretion to inflict a lower grade of punishment." 39 Ga. 85; 58 Ga. 20:3. I also find the word "punishable" defined in all the law dictionaries as meaning "liable to be punished," and not "must be punished." Anderson's Law Diet.; Black's Law Diet.; Bouvier's Law Diet. 118 Mass. 42; 49 Conn. 233. For the reasons above given it is my opinion, as before expressed, that either one who has pleaded guilty to the crime of forgery, or oue who has been convicted by a jury of fo~gery, with a recommendation, is ineligible to vote, or to hold a seat in the General Assembly, unless pardoned by the Governor. Very truly yours, BOYKIN WRIGHT, Attorney-General. WHO ELIGIBLE AS MEMBERS OF COU~TY BOARDS OF EDUCATION. March 22, 1902. Hon. G. R. Glenn, State School Commissioner, Atlanta, Ga. Dear Sir:-You submit the following question for my opinion: "The city of Dublin, Laurens county, has a local school system. It 25 has its own board of education; receives its pro rata of the public school fund direct from the State School Commissioner, and the board of education of Dublin has no connection whatever with the county board. Recently the grand jury appointed as a member of the county board a citizen of Dublin." You ask whether this selection by the grand jury is legal, and whether or not the citi!;len so selected as a member of the county board of educ.ation of Laurens county should be commissioned. It is my opinion that the selection is illegal, and that the commission should be withheld. The Act of 1897, page 23, amends section 1354 of volume 1 of the Code, and is as follows: "Whenever there is in a portion of any county a local school system having a board of education of its own, and receiving its pro rata of the public school fund directly from the State School Commissioner, and having no dealings whatever with the county board of education, then the members of the county board of education of such county si1aH be selected from that portion of the county not embraced within the territory covered by such local system." See Acts of 1897, page 23. I have the honor to be, Very truly yours, BOYKIN WRIGHT, Attorney-General. PUBLIC SCHOOLS-VACCINATION OF PUPILS AND THE EXPENSE THEREOF. March 21, 1902. Hon. G. R. Glenn, State School Commissioner, Atlanta, Ga. Dear Sir:-! am in receipt of the letter of County School Commissioner wan, addressed to you, and by you referred to me for my opinion on the follo,wing question: "Has the county board of education the power to pay the expenses of vaccinating the school children where the county board required that each child should be vaccinated before entering the school'!" Strictly construed, I do not think that the expenses in question are among those to which the public school fund can be legally applied. It is competent, as a sanitary or police measure, for the board to require all pupils attending school to be vaccinated, but there is no obligation on the part of the board to defray the expenses of the pupils' medical bills. At the same time I am not prepared to say that it would be a misapplication of the fund if the school authorities, in order to insure the vaccination of the pupils, and to protect the schools from a threatened invasion of smallpox, undertook to haYe the vaccination done under its 26 QWn supervision at the expense of the school fund. Where, in, the dis- -cretion of the board, such a step were deemed to the best advantage of the school, I should hesitate to question the power of the board to in- cur the small expense necessary for so important a safeguard against .a threatened contagion in the schools, particularly as section 1363 gives the board the power "to make all arrangements necessary to the effi- -cient operation of the schools." Very truly yours, BOYKIN WRIGrlT, Attorney-General. SOLICITOR-GENERAL'S FEES IN CERTAIN TAX CASES. March 21, 1902. Hon. '\V. A. '\Vright, Comptroller-General, Atlanta, Ga. Dear Sir:-I am in receipt of .the letter of Hon. william Brunson, Bolicitor-General Macon Circuit, addressed to :JIOU, and your request that I give you my opinion on the question submitted below: "One, Mollie Burgany, was indicted at the April term, 1901, of Bibb Superior Court, after failing to pay a liquor tax of $200, and to register with the Ordinary as required by the Acts of 1900, pages 24 and 27. 'l'he defendant was convicted and a fine in double the above sum was imposed as required by the Act, two hundred dollars. of which to be paid to the tax-coHector for educational purposes, and the other $200.00 to go to the fund of Fines and Forfeitures for use of officers of the Court. ~'he defendant appealeC'. the case to the Supreme Court, which affirmed the conviction. The fine was paid; $200.00 was carried to the Fines and Forfeitures Fund, and the other $200.00, less 10 per cent, thereon, claimed as commissions for the solicitor, was paid over to the tax-collector for educational purposes as provided by the Act." Kow, the question propounded to you by the Solicitor-General, and by you referred to me, is this: Is the Solicitor-General entitled to 10 per cent. on the $200.00 as fees "for litigated collections for the State"!" In my opinion, he is not entitled to commissions upon this fund as for "litigated collections for the State," prescribed in the Solicitor-General's Fee Bill, section 1099 of the Criminal Code. In my opinion it was the crime, and not the fund, that was in litigation; it was a Cl'iminal case, pure and s.imple, and his compensation for senices therein is to be determined by the Fee Bill applicable to criminal cases, and not by the commissions allowed for services for the collection of State money on the civil side of the court. The SolicitorGeneral was paid his regular fees for the indictment and for the trial in the Superior Court, and also his regular fees for the trial of a misdemeanor case in the Supreme Court. These cover his entire services in the premises. The money collected was a mere incident of the criminal 27 prosecution, and was simply a fine imposed as a penalty for the crime; it was in no sense a collection of money by the Solicitor-General for the State. He would have just as much right, in my opinion, to his com- missions upon all fines paid into the court as a result of convictions for crime in the Superior Court. I am aware that the fees of our brother, as provided by law, were totally inadequate as compensation for the able and successful services rendered by him in this case, but I am constrained to think that the provision of the law relied on is not sufficient to cover this charge. I have the honor to be, Very truly yours, BOYKIN WRIGHT, Attorney-General. 'TAXATIO:N-LICE:NSE 01<' DEALEHS IN FUTURES CONTI:NUE AFTER BANKIWPTCY-,VHEN. April 16, 1902. Ron. " A. 'Vright, Comptroller-General, Atlanta, Ga. Dear Sir:-Replying to your letter of April 12, enclosing the letter of Messrs. Anderson, Anderson & Thomas, to you of April 8th, I beg to say. In my opinion J. S. Jones, or the Atlanta Brokerage and Commission Company, are not liable for an, additional tax of $1,000, as dealers in futures, under the facts stated in your letter, and in the letter of . Messrs. Anderson, Anderson & Thomas. Before bankruptcy proceed mgs "" E. Small & Company, composed of ,V. E. Small and J. S. Jones, paid the tax in question, for the identical business now being carried on at identically the same place, by or in behalf of the same parties. The fact that the bankruptcy court has taken possession of all the assets of the firm of ,V. E. SmaU & Company, did not deprive that firm, or its members, of the right to continue the business under the said license at the same place. The license was not seized as a part of the assets. All the assets of the firm have been seized and distributed by the bankruptcy court, the place of business, the license and the individual members COllS'tituting the firm of ,V. E. Small & Co., still remain. These same parties are continuing to use the same license at the same place to carry on the business of futures in the same way as heretofore. It is true that they designate themselves n.ow under the name of the "Atlanta Brokerage and Commission Company," but the business is car. ried on by J. S. Jones as heretofore, in behalf of the same parties. The law imposes this tax "upon every individual or their agents, engaged in the business of sellling or buying . . . for future delivery, commonly called futures, . . . . for each place of business in each county where such business is carried on." The "individual, or firm" is the same, 28 and the "place of business" is the same; hence, in my opinion there is no room for imposing a new or additional tax. The foregoing opinion is based upon the hypothetical case stated in the letter of Messrs. Anderson, Anderson & Thomas. Of course, before acting officially upon this matter, I assume that you will require the facts to be formally established under oath of the parties that they are identically the same firm or individuals to whom the license was issued, otherwise the new firm or individuals will be required underthe law to pay an additional license tax of $1,000. I have the honor to be, Very truly yours, BOYKIN WRIGHT, Attorney-General. TAXATION OF LAND LYING PARTLY IN TWO COUNTIES. April 4, 1902. Hon. \Villiam A. Wright, Comptroller-General, Tax Department, Atlanta, Ga. Dear Sir:-I am in receipt of your favor of April 2d, asking my official opinion upon the question submitted to you by J. E. Porterfield, tax-collector of Banks county, as follows: "A taxpayer owns a farm of about 300 acres, 20 acres being in Hall county, the balance, 280 acres, being in Banks county; all of his tenant houses and the old original dwelling being in Banks, and nearly all of his improved farming lands being in Banks, but the dwelling where he now lives being in Hall county, and about 15 acres of improved farming land being in Hall county." The question propounded is, in which county is the said plantation returnable for taxation, in Hall or in Banks? Section 817 of volume 1 of the Code declares: ''If there is a mine or plantation on the line between two counties, and in two oe more counties, the returns shall be made in the county where the impro\'e'lllents, or most of the improvements are." Section 817, vol 1 of the Code. It seems to me that the only question therefore to be considered is, in which of the two counties the "most of the vrnproveme.nts are." To ans1yer this question intelligently it may be well to consider, in the first place, what constitutes "improvements"? I think the tax-collector of Banks county is correct in his contention "that improyed farming land is as much improvement as a dwelling." In ot11et words, "improvements," when applied to farming lands, are not confined to the dwelling-house alone of the proprietor or owner of of the lands, but embrace the tenant houses, the outhouses, and other structures fw domestic and agricultural purposes; they also include 29 fences, ditches, canals, and everything tha;t distinguish improved from unimproved lands, and gives additional and permanent value thereto. See Bouvier's Law Dictionary, Title, Improvements. Anderson's Law Dictionary, Title Improvements. 16 Am. & Eng. Ency. of Law (2d Ed.), at pages 62, 66 nO'te, 73 et seq. 27 Century Digest, page 5. The Supreme Court of Louisiana says: " 'Improvements' for which compensation may be claimed include every permanent improvement of the soil, and especially felling trees and fitting the land for agriculture." Pearce v. Frantum, 16 La. 414. The Supreme Court of Maryland declares: "Ditching and grubbing meadow land may be necessary, lasting and valuable 'improvements,' and if so, upon proof, must be allowed for accordingly." Jones v. Jones, 4 Gill 87. The Supreme Court of California decided that "improvements" do not necessarily mean buildings or other structures on the land. Allen v. McKay, 120 Cal. 332. '.rhe following things have been held to constitute "improvements" on land, viz.: the digging of a well, of ditches, the erection of fences, the clearing of unimproved lands, building of levees, the planting of fruit-trees, of clover and orchard-grass, a sidewalk along side of the property, etc. See 16 Ency. of Law (2d Ed.), pages 74 and 75. It would appear from the statement of the tax-collector of Banks county, above quoted, not only that most of the improved farming lands in the plantation arc located in the county of Banks, but tllat all of the tenant houses and the old original dwelling are located in Banks, and that the only "improvements" located in Hall are the present dwelling of the owner and 15 acres of improved land, and 5 acres of unimproved land, the rest of the entire plantation being in Banks county. Under this statement of the facts, and the view I take of the statute and of the General Law defining the meaning of the word "improve ments," I have reached the conclusion that the land in question is re- turnable for taxation in the county of Banks, and not in the county of Hall. I think it would be entirely competent for the present owner, if he should elect to do so, to separate his tract of land into two tracts, re- turning that which actually lies in Hall in that county. See 79 Ga. 721. I have the honor to be. Very truly yours, BOYKIN WRIGHT, Attorney-General. 30 STAE BOND8-HOW REGISTERED. April 29, 1902. Hon. R. E. Park, .State Treasurer, Atlanta, Ga. Dear Sir:-I am in receipt of your favor of this date submitting the letter from Mr. John vV. Dickey, as follows: "Some time ago you transferred to me 5,000, State of Georgia, 4.! per cent., 1915 bond, No. 31, to the Southern Mutual Insurance Co., of Athens. Mr. Thomas, the president, is not satisfied with the legality of the transfers on this bond, _and refuses to accept it, nor does he wish to transfer it by a power of attorney so that his company has to guarantee the transaction in any way. He says he will write you a letter in regard to it, and I W<.mld like to know from you what you would suggest as the plan that would suit you best for an,nulling, so to speak, this transfer. Could I .erase the name of the Southern Mutual hlsurance Co., of Athens, and insert in it my own name, or some other name to whom I might sell it." In your letter to me you say: "~ir Dickey wishes to know from me a plan that would suit me best for annulling this transfer, and inquires whether he could erase the name of the Southern Mutual Insurance Co., of Athens, and insert in it his own name, or some other name to whom he might sell it." And you _ask my opinion on the matter submitted. The law with respect to registration of State bonds is incorporated in sections 1011 to 1013 of volume 1 of the Code of 1895. The last named section is in the following language: "None of said bonds shall, after such registration, be negotiable by delivery, but said. bonds may nevertheless be negotiated or transferred by t.he por.sotn i.n w.hosc natme fh,ey .ar,e !l'egist~red, by re-registration in the name of -the person to whom the same are to be transferred or negotiated." By section 1011 only the holder of the bond in whose name the same was last registered would have the right to re-register the same at the office of the State Treasurer. The '.rreasurer is required by section 1012 of said Code to have a suitable book, or books, in which, upon application and presentation of a bond or bonds as aforesaid. he shall enter, in a manner to be of easy and ready reference, a description of said bond or bonds, giving number, series, date of issue, denomination, by whom signed, together with the name of the person registering the same, the character or capacity in which said person holds such bond or bonds, and for whose benefit the same are registered. You have complied with this provision of the law, and that book is now an official record of your office. You have no authority to change that record and make an erasure, such as would be necessary to carry HL out the suggestion of Mr. Dickey, "to erase the name of the Southeru Mutual Insurance Co., of Athens, and in,sert in it my (Dickey) own name, or some other name to whom I (Dickey) might sell it." It would appear that no one is authorized after the registration to register the bond except the person in whose name it appears of record to have been last registered. I have the honor to be, Very truly yours, BOYKIN WRIGHT, Attorney-GeneraL DEPUTIES-WHA'r ACTS MAY B~ PERFORMED BY. April 23, 1902. Dear Sir:-Replying to your letter of April 19th, asking if there is any provision in, law for the appointment of a deputy by a tax-receiver. will say: that, in my opinion, the tax-receiver has the power to appoint a deputy and authorize him to receive taxes and administer the oath, this being done in the name of the tax-receiver by his deputy. I find no special statute of Georgia providing for a tax-receiver's deputy. But it is a well-established rule, that where the duties of a public office are of a ministerial character, they may be discharged by a deputy, except where they are expressly required by law to be performed by the officer in person,. See 9 Am. & Eng. Ency. of Law (2d Ed.), p. 370. 40 Ga. 44. 19 Am. & Eng. Ency. of Law (1st Ed.), 462. I think the taking of acknowledgments or administering of oaths may be done by deputy when taken in the performance of ministerial duties, such as receiving taxes. 1 Am. & En,g. Ency. of Law (2d Ed:), 496. Of course the tax-receiver alone can appoint such a deputy, and he and his bondsmen are respon,sible for all acts of omission or commission performed by the deputy in the discharge of said duty. Very truly yours, BOYKIN WRIGHT, Attorney-General. SALE OF FERTILIZERS IN BULK-INSPECTION FOR FARMERS BENEFIT. May 5, '1902. Hon. 0. B. Stevens, Commissioner of Agriculture, Atlanta, Ga. Dear Sir:-I am in receipt of marked copy from your office of the 32 "Southern Oultiootor," containing an editorial on "The Fertilizer Laws" as interpreted in a recent ruling by me as Attorney-General. This editorial points out what, in the opin,ion of the editor and its distinguished correspondent, -Col. Peek, is a defect in the law with respect to the inspection and sale of fertilizers and fertilizer materials. You desire my further consideration of the subject, and to know what, if an,y, amendments to the law could be suggested to meet the alleged evil, if evil it be, here pointed out. The editorial contains the following: "The Georgia law as interpreted by the Attorney-General forbids any one selling fertilizers to farmers in bulk. This simply means that a farmer can only buy fertilizers in sacks from manufacturers. But the manufacturers can buy i>n bulk. That means that the consumer can, not buy without paying the manufacturer for sacking, mixing, inspec.ti~Yn and oondlmg." Of course, it is not within the jurisdiction of this office to criticize, but simply, when asked by the proper authorities, to interpret the law as it is found on the statute books. As the whole scheme of inspection is intended solely and exclusively for the protection and benefit of the farmers, the highest duty of your department, and of every other department of the State government, is to administer the law as the farmers and their friends in the Legislature who make these laws, place them upon the sta:tute books. If the law as it now exists fails in any respect to protect the farmer and works any hardship upon the agricultural interests, it should be remedied. To this end it will give me great pleasure, when your department, or those who are competent to suggest an amendment, aid in drafting and presenting the same to the Legislature, so that it may promptly become a law. 'While I do not feel competent to deal with the practical ql'lestions involved in the Culti1:ato7's criticism of the law, it is apparent that in order to carry out the views of the Cultivato'r ,the whole law must be radically changed. The yery object of the inspection of fertilizers is to absolutely prohibit any fertilizer or fertilizer material from getting into the possession of the farmer until it has been inspected and has upon it a guaranteed analysis, which, when sold, will make the seller responsible as a guarantor to the consumer, that the stuff sold contains the requisite percentage of plant-food, required by the law. Under the present scheme of the law this is absolutely necessary to preYent the farmers of the country who are ignorant of chemistry from haYing imposed upon them under the guise of "guano," worthless stuff. The manufaaturer may bu~- in bulk, of course-he may buy that which is Yaluable or that which is worthless; of his interests the inspection 33 Jaws take no account; he buys at his own peril and must look to his own safety and prO'tection. But before he is permitted to sell his wares to the farmer they must be im<~pect,ed, tagged and guarranteed, so that if they fail to contain, the requisite plant-food the farmer or the consumer has this guaranty of the manufacturer to fall back upon. It seems to me that the fraudulent manufacturer or wholesale dealer in so-called fertilizer material would want nothing better than permission to sell in bulk direct to the farmer, "without sacking, mixing or inspection," since in that event there would be no guaranteed analysis by him, and nothing to protect the farmer from wholesale fraud. Hence, the law distinctly provides that all sales to the farmer shall be only after the fertilizer or the materials shall have "branded upon or attached to each bag, ba,r.rel or package the guaranteed analysis thereof, showing the percentage of valuable elements or ingredients such fertilizer or chemical contains, and that the analysis so placed upon or attached to an,y fertilizer or chemical shall be a guarantee by the manufacturer, agent or person offering the same for sale, that it contains substantially the ingredients indicated thereby in the percentages named therein, and said guarantee shall be binding on said manufacturer," etc., etc. To secure the farmer against his own want of skill in judging of the value of these chemicals, the farmer himself is not permitted to buy, or rather the seller is not permitted to sell to the farmer, any fertilizer or fertilizer materials, until this inspection has been, made after the manner prescribed by law by a regularly constituted sworn officer of the State, who is competent to analyze and pass upon the commercial value of the article, and to place upon it., by the authority of the State, the "guaranteed analysis," which makes the seller an absolute guarantor of the farmer. Hence, the law declares that any other kind of sale shall be null and void, and also declares that "the fact the purchaser waives the inspection and analysis thereof, shall be no protection to said party selling or offering the same for sale." It seems that the lawmakers deemed it wise to require "each bag, barrel or 11ackage," to be thus branded, etc. It may be possible that some method might be devised for having this done vn bulk also, so as still tfl bind the seller to guarantee the quality of the materials to the farmer, when the farmer desires to buy his materials in bulk and mix them himself. This is a practical question with which I wouJ.d not presume to deal. As to how the analysis could be made in bulk, and the bulk be branded with the guar. anteed analysis, so as to attach to the material when broken to pieces or mixed with other elements by the purchaser, are practical questions with which the reformer of the law must deal. But it is literally true, as stated by the Gultilxz.tor, that at pr!!;ent 3w 34 "the Georgia law, as interpreted by the Attorney-General, forbids any one selling fertilizers to farmers in bulk," since the present law for inspecting, tagging and guaranteeing fertilizers provides that "each bag, barrel or package," shall be so branded, tagged, "etc. The Cultiwtar complains that the manufacturer can buy in bulk, while the farmer can not. The difference is that the manufacturer is not protected in his purchase, nor. intended to be protected, by the inspection laws, while the farmer is. The Cultimator further complains that "the consumer can not buy without paying the manufacturer for sacking, mixing, inspection and handling." Of course the consumer, in the end, always pays the expenses necessary for the inspection. There can be no inspection without ex pense, and as in all such cases, the expense finally falls upon the consumer. In this particular case there is comfort in the thought that the inspection and the expense thereof, are for the benefit, exclusively, of the consumer. Of course the farmer can buy his own materials and mix them himself, or get any mixer to mix them for him after his own formula. '!'here is nothing in the law to prevent this. But in buying his materials-chemicals or other fertilizer materials required to be analyzedthe Iaw throws around his purchase the same protection applicable to the purchase of a co,mpkted fertilizer, viz.: it requires such materials or chemicals to be inspected, analyzed and branded with the "guaranteed analysis" before they can be sold to him. Of course, if the farmers do not wish this protection one all-su:t;ficient remedy is open to them, and that is to so amend the law as to authorize the sale of materials in bulk to the farmers without inspection. In such a case, of course, the farmer so purchasing could not enjoy the guaranty now thrown about his purchase by the inspection laws, but would rely upon the general law that everything sold is impliedly warranted to be reasonably suited to the purposes for which it is intended. One word in conclusion: 'l'he editorial in question says "the law has been upon the statute books for many years, but was construed to mean that the farmer could buy the material for his own use if he did not wish to sell again. Under that construction they were permitted to buy and mix." I do not know of any construction of this law made by any previous Attorney-General different from my interpretation. I am informed that no such rulJng is of record in the office. At any rate, the conclusion reached by me appears to be a necessary one in view of the language of the statute. I think, also, that it is in line with the manifest intention of the Legislature to protect the farmer from fraud and imposition. It is probable that heretofore it has been the practice for the farmer, 3.5 ln some instances, to buy and mix his own guano, and I see no good reason why he should not be permitted to do so now, if he desires it, .any more than I see any good reason why a farmer should not be P,ermitted to. buy uninspected guano, if he desires. But this would be opposed to all modern legislation on this subject. The theory of the law at present is, that in order to prevent imposition upon the farmer, no fertilizers, or fertilizer materials, which have not been inspected .and branded with a "guaranteed analysis," shall be sold to the farmer. 'l'he theory of the present law is that the farmers both desire and need this protection. If this theory is a mistaken one, then. I certainly see no reason why .it should be persisted in. by the lawmakers; let the farmers have what they want, and of this they are the best judges. But this is a question for the Legislature, and not for your Department, or mine. Very truly yours, BOYKIN WRIGHT, Attorney-General. 'TAXATION-S. .B'. & W. R. CO.-DEPOT IN BRUNSWISK. Ron. Boykin Wright, Augusta, Ga. May 5. 1902. Dear Sir:-The railroad authorities of the S. F. & W. R. R. Co. have .taken issue with me in reference to the taxation of certain. properties of this corp'oration. Their contentions are as follows: First, that the .depot and shop buildings erected by them on leased property of the dty of Brunswick, they being tenants at will of the city authorities .of Brunswick, as soon as erected, become the property of the city of Brunswick, an.d therefore not taxable .as the property of the S. F. & \V. R. R. Co. Second, that railroads in course of construction and not completed and operated, are not subject to taxation until completed .and operated. In view of these contentions being made by the rail- road authorities, I desire your official opinion. on each one of the ques- tions raised. Very truly, WM. A. WRIGHT, Comptroller-General. May 7, 1902. Hon. William A. \Vright, Comptroller-General, Atlanta, Ga. Dear Sir:-! am to-day in receipt of your letter of May 5th, i'n ,r:e. the S. F. & W. R. R. Co.'s claim that the depot and shop buildings e~ected by them on leased property of the city of Brunswick are not taxable as the property of the company. Some time ago I received a letter from Mr. Kay, the attorney of tne company, on the same subject. I at once wrote him for a copy of the lease or deed from the city of Brun,swick under which the railroad company holds the land in question. I desired this instrument by way of securing necessary information. I also asked him to state what the buildings were wortb separate from the land. He has not furnished me with the information, or with any reply to my letter. In the absence of any better information than now is available, I would say that you have properly assessed the said de'pot and shop buildings as the property of the railroad company. As to the second question, I am of the opinion that under our system of taxing railroads, all the property in existence on the day for returning taxes is taxable, whether the railroad is completed as a running concern or not. It is the property in detail that is taxed, and not the completed railroad as a running concern. The latter system is adopted in some States, notably in Alabama, but in Georgia all the property of the railroad is ta..xed, each class or species to be separately named and valued, to be taxed as other property of the people of the State. Very truly yours, BOYKIN WRIGHT, Attorney-General. LEGAL ADYERTISE~fENTS. 1\fay 8, 1902. Dear Sir:-Replying to your letter of May 4th, will say: (1) A publisher is not obliged to insert a legal advertisement of any kind unless the fee for same has been paid in advance. In Ward v. County of Appling, SO Ga. 672, the Supreme Court says: "H~ (the publisher) was not bound to publish the advertisements without payment of his fees, and he was entitled to demand them in advance." (2) The publisher is entitled only to pay for the number of' insertions made, and where the whole amount is paid in advance for four insertions, or more, I think, the sheriff would have a legal right to demand a return of the excess when the advertisement has been ordered discontinued before all of the insertion.s are made. See sections 5461 and 5462 of the Civil Code. Also, 113 Ga. 612 and 747. Very truly yours, BOYKIN WRIGHT, Attorney-General. 37 PUBLIC SCHOOL LICENSE. May 9, 1902. Hon. G. R. Glenn, State School Commissioner, Atlanta, Ga. My Dear Sir:-I am in receipt of the letter addressed to you by D. 0. PhilliP,s, asking if his diploma, given by the Georgia State Normal :School, was still valid as a license to teach in the schools of this State, he havin:;:- received the same in 1897. In my opinion the diploma in question is valid as such a license, and dispenses with the necessity of an examination as now prescribed by the general common school laws of the State. The Act of 1899, pages 51 and 52, repealing the law making such diplomas equal to a license expressly provides: HThat nothing herein contained shall be construed to invalidate any license to teac:h in the schools of this State now held by any person." See Acts of 1899, pages 51 and 52. Very truly yours, BOYKIN WRIGHT, Attorney-General. INSURANCE COl\IPANIES-~IANUFACTURER'S MUTUAL SUBJECT TO GENERAL LAW. June 27, 1902. Hon. 'Villiam A. Wright, Comptroller-General, Insurance Department, Atlanta, Ga. Dear Sir:-I am in receipt of your favor of June 26th in which you say: "An association of manufacturers has been formed, the purpose of which is to insure their property from loss by fire. This association is composed of manufacturers in Georgia and other States. The affairs of the association, as I understand it, are to be managed by such of1icers as are necessary to conduct this business, at some central locality, possibly, in Atlanta. The plan is to require each representative of these properties to deposit pro rata according to the value of their respective property $250.000.00 as a reserve. whenever a loss occurs, each property is assessed, pro rata, to pay said loss. Additions to the membership of this association are permitted to be made from time to time upon complying with the rules laid down by the association. You will observe that the association is in the nature of a mutual or co-operative fire insurance association. "Inquiry has been made of me by the attorney of this proposed association whether Ol.' not it will fall within the jurisdiction of this department, and be subject to the laws of this State regulating the business of mutual or co-operative insurance companies." You further add: 38 "I would be glad to have you investigate 'the matter and report to me the result of your investigation." I infer from your letter that the association in question, does not propose to obtain a charter as provided for in section 2030 of the Code,. but desire to engage in the business as a voluntary association. Before the Act of 1893, page 81, codified in section 2071 of the Code, the laws regulating the business of insurance in this State were n,ot made applicable to individuals or voluntary associations, but only to incorporated companies. See 92 Ga. 8. Judge Lumpkin, delivering the opinion of the court in the above case, called attention to this oversight on the part of the Legislature. Accordingly, in the fall of the year in which said opinion was rendered, the Legislature, by the Act aforesaid, declared: "All laws regulating the business of insurance in "this State by companies are applicable to individuals, associations and corporations lu like business." Volume 2, section 2071 of the Code. It is my opinion, therefore, that the association referrell to will fall within the jurisdiction of the Insurance Departnwnt, and be subject to the laws of this State regulating the business of mutual or co-operative companies. I have the llOnor to be, Very truly yours, BOYKIN 'VRIGH'l', Attorney-General. AUGUSTA UNION STATIOJ'\ CO:\IPANY-TAX Jstori, 96 U. S., page 432 (Law Ed. 760), yiz.: dir<>ct that a tax assessed hy it on its stock or bond shall be retained by its treasury out of the interest due on it to its holders. The Supreme Court of the L'nited States held that such a tax was an impairment of the obligation of the contract and in violation of the Constitution of the United States. Murray v. City Council of Charleston, 9G U. S. 432 et s.eq. In the above case the principal was established that the power to tax was absolute in the State, but that the issuance of the bonds a.t a given rate of interest was a promise not to exercise that power by thereafter reducing the said rate of interest under the guise of a tax, and that such taxation would be an impairment of the obligation of the contract, quoting from Alexander Hamilton on this subject. See 96 U. S. (Law Ed.), at 763. In the above case the Supreme Cou11t say: "\Ve do not question the existence of a State power to levy taxes aft claimed (upon its own bond), nor the subordination of contracts to it so far as it is unrestrained by constiltutional limitation. But the power is not without limits. and one of its limitations is found in the clause of the Federal Constitution, that no State shall pass a law impairing the obliga.tion of contracts. A change of the expressed stipulations of a contract, or a relief of a debtor from strict and literal compliance with its requirements, can no more be affected by an exertion of the taxing power than it can be by the exertion of any other power of a StaJte Legisla-ture. The constitutional provision against impairing contract obligations is a limitation upon the taxing power, as well as upon all legislation, whatever form it may assume. Indeed, attempted State taxation is the mode most frequently adopted to affect contracts contrary to the constitutional inhibition. It most frequently calls for the exercise of our supervisory power. It may then be safely affirmed that no State, by virtue of its taxing power. can say to a debtor: 'Yon need not pay to your creditor all of what you have promised to him. You may satisfy your duty to him by retaining a part for yonrf'elf, or for some municipality, or for the State treasury.' Much less can a city say, 'We will tax our debt 1to you, and in virtue of the tax withhold a rmrt for our own use.' " 96 U. S. 432 et 8CIJ. (Law Ed.), at 762 and 763. In the above case it was held that the power to tax bonds was reserved to the State and to the city at the time of their issuance, but 43 the promise to pay a certain rate of interest was held to include thepromise not to take away any part of it by taxation. It is true that the Supreme Court intimated, if it did not distinctly declare in this case, that a tax might have been upheld had it been levied generally upon, the property of the taxpayer, including th& bonds, and not have been reserved specifically out of the interest due to the bondholder. But neither this case of tthe Supreme Court of the United States nor the cases above cited from the Supreme Court vf Georgia, affect the question presented by our Constitution of 1877. The impairment of tthe obligation of a contract is not involved, as it seems to me. Since 1877 any contract made by the State, or any city of the State, with the bondholder, was made with the distinct understanding on the part of 'the bondholder that the Legislature could not omit to collect taxes on said bonds as on all other property, so long as they were owned and held within the territorial limits of this State. Had the power to tax, or not to tax, been optional with the Leg!;,. lature at the time of the issuance of the bond, the question would have been a very different one. In that case the promise to pay a given rate of interest might probably be construed to be a promise not to exercise tlie option to tax. But here there was no option. This fact was known to the bondholder at the time he made or purchased the contract. He took, therefore, with the full knowledge tthat the Constitution Imd already declared that the said contract was not only taxable, but could not be exempted from taxation, and must inevitably be taxed. All this, of course, is provided that State or municipal bonds are not included in any of Hw exceptions of the Constitution. Are they exempted as being public propevty? They certainly are not the property of the State, because they are a liftbility of the State; if not the property of the State or any of its municipalities, how car~ they be public property? If we were interpreting the Act of a Legislature in which the taxing power vested, and the Act was in general language taxing "all property," we might well imoke some general rules of construction that have been applied to such enactments. Vi'e might call attention to the fact that such bonds are one of the means or instrumentalities of the State whereby the government is kept in operation, and that since the power to tax involves the power to destroy, it would be inconsistent with the very object and purposes of government, and hence contrary to public policy to thus tax the government itself, or, what is the same thing, the public credit, which is one of the chief instruments whereby the government subsists. 'Ve might argue that for these reasons and Ponsiderations it was not the int.e:ntLo.n of the Legislature, by the use of this general language and in the absence Of specifically naming these items of property, to 44 include State and municipal bonds as subjects of taxation. In such a case we might also argue that the legislative promise to pay a given rate of interest was a promise not to reserve any parts thereof in virtue of the right to tax. But it seems to me that our Constitution of 1877 pretermits any such considerations. We have only to inquire, "are State and municipal bonds property? If so, are they specifically exempt by the Constitution?" It seems to me the first of these two questions must be answered in the affirmative, and the second in the negative. See 109 Ga. 97; 113 Ga. 883. Very truly yours, BOYKIN WRIGHT, Attorney-General. DISPENSARY AND LOCAL OPTION-BALDWIN COUN'l'Y. July 5, 1902. Hon. J. D. Howard, Member-Elect of the Legislature, Baldwin county, Ga. My Dear Sir:-You submit to me for my opinion the following question,: After a prohibition election resulting in the county going either wet or dry, can a county dispensary law be enacted by the Legislature and put into operation, thus setting aside the result of the election under the general local option law'! It is further stated 89 Income Bonds of $1,000 each of the Charleston & 'Vestern Carolina Railway Company, it appears that these bonds were issued by the Charleston & Western Carolina Company to the e Centrlll of Georgia Railroad Company, as to every other taxpayer touching these items, is as follows: '\Vhl~t is tbe gross value of your notes, accounts, or other obliga-tions for money, and the market value thereof, whether the same are 'Within or without this State." Political Code, section 833. Very truly yours, BOYKIN WRIGHT, Attorney-General. 47 TAXATION OF SECURITIES OF RAILROADS. AUJ:"USt 4. 1902. Hon. William A. Wright, Comptroller-General, Atlanta, Ga. Dear Sir:- HEI..ATING TO THE 'L'AXABILI'l'Y OF CERTAI~ BONDS OWNED BY THE CENTRAL OF GEORGIA RAILWAY COMPANY. You submit to me for my opinion the letter of Mr. John 1\f. Egan, !'resident of the Central of Georgia Railway Company, dated July 25th, together with the enclosure therein of a letter from 1\Iessrs. Lawton & Cunningham, General Counsel, dated July 24th, addressed to Mr. John 1\L Egan, President. The letter of Messrs. Lawton & Cunningham deals with my opinion as Attorney-General submitted to you under date of July 18, 1902, in which I held that certain bonds specified therein owned by the Central of Georgia Railway Company, burt which had been pledged in ~ew York to secure certain loans of said company, were taxable to said company in Georgia. The contention of Messrs. Lawton & Cunningham, as stated in their letter, is as follows: "Our point as to all of these securities is twofold: First, intan)5ible personal property being taxable only in the residence of the owner, and without regard to the situs of the evidences of debt themselves, and the title to this property being in cerialn trust companies in the city of New York, and therefore owned by non-residents of Georgia, the property is not taxable in Georgia. Second, that even if there were any law in Georgia (as there is not) for the taxation, of our inchoate, equitable claim upon these securities, that this claim is of no actual or market value, and therefore there should be no tax. Property in trust is, in tl;le absence of special provision of statute, taxed at the same placA as though the trustee were the absolute owner. '"The legal title is in the trustee, whoever he may be. Until the mon,ey is paid over, the trust fund is in the hands of the trustee, and it has been. and is, his duty to pay the taxes upon it." To sustain the above position Messrs. Lawton & Cunningham cite the following very familiar Georgia authorities: Augusta 1'. Dunbar, 50 Ga. 393. 'l'rustee v. City Council, 90 Ga. 648. Smith 1'. Byers. 4~ Ga. 192. I have given the Yiews of :uessrs. Lawton, & Cunningham that careful attention which any opinion emanating from such a distinguished source desetTes. At the same time I have been unable to reach a conclusion different 48 from that expressed in the opinion submitted by me to you under date of July 18, 1902. I do not think that the principle or the authorities relied on by the learned counsel for the company apply to trustees under a trust deed or mortgage to secu,re a uld not be charged as such. "On the other hand, the Macon Te~egraph Publishing Company maintains that the attached clipping is not one, but many advertisements, and that for each sale advertised the Telegraph is authorized under the law to charge seventy-five (75) cents per insertion for each 100 words or fractional parts thereof, for the first four insertions. 54 "This statement of facts is agreed to b;r the undersigned, who re- spectfully request your opinion. "Kindly give us your opinion as soon as you possibly can, as rt will be necessary within a few days to publish an additional list of adver- tisements." In my opinion the col1'tention of the Macon Telegraph Publishing Company as set forth in the above letter is a correct interpretation of the statute in question,. The advertisement is a part of the final proc- ess of the court, or authority issuing the execution, to subject the prop- erty of a particular defendant in a particular proceeding to the pay- ment of a particula: debt. Each advertisement is as separate and dis- tinct as any other part of the process from the beginning to the end, and its regularity o: validity would in nowise affect the regularity or validity of the advertisement or sale of any other piece of property ad- vertised by the sheriff. The sheriff, or selling officer, has a right to demand in advan,ce of a plaintiff in a fl. fa. the costs of the advertise- ment. I think, therefore, that the Publishing Company has the right to consider each advertisement as a separate one, and the advertising fee to be estimated accordingly. See 5461 of the Code. 113 Ga. 612. The exact question submitted I do not find ruled upon in any of our decisions, but I think that the eustom .i\lstitie for Paell advertisement separately. Very truly yours, BOYKIN WRIGHT, Attorney-General. RAILROAD CO)DIISSIONER'S PO"\YER OVER TBLI<~GRAPH COl\IPANIER. August 5, 1902. Hon. Spencer R. Atkinson, Chairman Railroad Commission, Atlanta, Ga. Dear Sir:- JN Rb' CLOSING TELEGRAPH OFFICE A'l' l\1'1'. VERXOX: Referring 'to your file 1970, on, the above subject, which I herewith return, the question raised by said record and submitted to me for my opinion is this: Has the Commission the power to sue the "'estern Union Telegraph Company for violation of telegraph rule No. 2 of the Commission for abolishing the telegraph office at Mt. Vernon'! "\Vhile the question is not entirely free frorn some difficulty, I am of the opinion that such suit could not be successfully maintained under the existing rule. The Act of the Legislature placing telegraph com- 55 panics under the control of the Railroad Commission confers upon the Commission "the power and authority to require said companies to locate agencies at railroad stations." Civil Code, section 2217. I am informed by you that the Commission<:>rs haYe never passed an order requiring said companies to locate agencies at railroad stations. The only action the Commissioners have taken on the subject of locating telegraph offices is in having adopted Rule No. 2, which is as follows: "Ko telegraph office where messages are received and transmitted for the public shall be discontinued or abolished without first obtaining the consent of this Commission upon an application duly filed by the said company desiring such discontinuance, wherein, shall be stated the reasons therefor." NeYer having exercised the only power given in section 221i, in respect to 'this matter, viz.: to require the telegraph company to locate au ageuey at :ut. Yernon, the Commission, would appear to be without authority to control that office at present. In other words, it has no't been brought within the jurisdiction of the Commission, and will not be, in my opinion,, until the Commission lias taken steps to designate :lit. Vernon as an agency. I think it would be entirely within the scope of the Commission's authority to enforce Rule No. 2 with respect to all offiees whi.ch have been, established by the Commission under the powE'rR conferred in section 2217 of the Code. For instance, should 'the Commission see tit to pass an order requiring telegraph companies to locate agencies at railroad stations where they now exist, thereafter Rule No. 2 would bE'come operative and no such agencies could be discontinued or abolished without the consent of the Commissioners. Of course, the Commission, would have the power to pass an order requiring the telegraph company to locate agencies at other railroad stations where they do not now exist when- eJH''l' tlte Commission sees fit to do so, and in such cases Hule No. 2 would beeome likewise operativE'. In short. I think the Commission must first establisn the agency before it can exercise jurisdiction over the subject of their discontinuance. Very truly yours, BOYKIX WHIGHT, Attorney-General. 56 INSURANCE COMPANIES CHARTERED IN 1868 NOT SUBJEC'l' TO GENERAL INSURANCE LAW. August 14, 1902. Hon. Vi'. A. ~Wright, Comptroller-General, Insurance Department, Atlanta, Ga. Dear Sir:-I am in receipt of your memorandum concern,ing the application for license by the Southern Life Insurance Company, chartered by the Act of 1868, page 66. Under the facts stated in the memorandum I answer your questions seriatim, as follows: 1. Non-user p,e:~ s'e does not work a dissolution of a corporation; such a dissolutiou follows only after judgment of a Court of competent jurisdiction declaring the forfeiture of a charter. See Code of 1895, section 1883 (2). 71 Ga. 106. 2. Section 6 of the charter declares: "The persons named in the first section of this act shall be the first directors of the company, and shall hold their office until the second ~Wednesday of June, 1869, and until their successors are appointed, and shall have power to increase their number, not to exceed nineteen, and all vacancies may be filled by the remaining members of the Board.'' I am informed that General John B. Gordon, the only surviving member, has undertaken to exercise the power conferred in this section by appointing six directors, who, with himself, seek to open, books of subscription to the capital stock, and begin business. Is he competent to do so? Section 1885 of the Code declares: "The death of all the members of a corporation, or of so many of them as to render it impossible, under the charter, to provide a succession, is a disolution thereof." Code of 1895, section 1885. It will be observed that all the members of the Southern Life Insurance Company have died with the one exception of General Gordon. The charter, in providing that "all vacancies may be filled by the remaining members of the board," manifestly did not contemplate that the membership of said board should be reduced to one member, otherwise it would have declared that all vacancies may be filled by the remaining members or member of the board. The authority, therefore, of Gen. John B. Gordon, the only surviving member, to fill the vacancies, does uot appear to be absolutely clear. lt is true that in the construction of statutes the singular or plural number shall each include the other, unless expressly excluded. 57 Section 4, paragraph 4, volume 1 of the Code. 23 Ga. 383. 'The charter provides that it shall be "liberally construed." See section 22 of the Act of 1868, page 68. In 23 Ga. 383, our Court says: "Can there be a doubt,that under a gift 'to the children of A,' he having but a single child, that that child would take; or, tnat un,der a bequest of 'all my horses,' a single horse would pass. There can be as little doubt that under the gift 'to orphans' a single orphan will take." 23 Ga. 383. Since the charter, by its own terms, is to be "liberally construed," it may be contended with force that the authority given the "remaining members" may be exercised by the remaining "member," viz,: by Gen. John B. Gordon. 3. Conceding that the charter of 1868 has not been dissolved or forfeited by non-user, nor by the death of all the members of the corporation, or of so many of them as to render it impossible under the charter to provide a succession, it follows that the Insurance Compan,y organized under the Act of 1868, is not subject to the provisions of the present law regulating insurance companies that are in conflict with the provisions of the Act of 1868, because section 2034 of the Code expressly excepts such companies as have already been chartered by the State. Volume 2 of the Code of 1895, section, 2034. Hence, a company organized under the Act of 1868 will not be rE> quired to have a paid-up capital of $100,000.00, but may commence business by complying with section 21 of the Act of 1868, viz.: bY. subscribing $50,000 with 40 per cent. of which paid-up. 4. But as to other requirements made of domestic companies not in conflict with the Act of 1868, existing laws apply. }j'or a better understanding of the foregoing, I attach hereto, as a part of this opinion, the memorandum and question submitted to me by you. while, as suggested above, in, answer to question No. 2 the authority of General Gordon alone to fill the vacancies on the board is not entirely free from doubt, I am inclined to the opinion that the power in question "liberally construed" may be exercised by him, and that, therefore, the corporation is still an existing one and entitled to a license wl!en it has complied with the requirements of i'ts charteor and the provisions of the existing law not in conflict with its charter. Very truly yours, BOYKIN WRIGHT, Attorney-General. 58 l\IERG~JR OF COMPETING RAILROADS UNCONSTITU'l'IONAL. September 1, 190:!. lion. A. D. CandlPr, Governor, Atlanta, Ga. Dear Sir:-I am in receipt of your letter of August 29 asking if the merger of the Southern, Seaboard Air Line. Atlantic Coast Line, and Louisville & Nashville Railroads would be in violation of State law, and if so, if any steps in opposition, to such merger are available by the State of Georgia. Yon state that it is your opinion, that the proposed merger of these four great lines would be destructive of competition, and, therefore, violative of the Constitution. You ask my opinion on this question, and also, what, in my opinion, would be the remedy, if any. Under the decisions of our Supreme Court our constitution.al provision contained, in section 5800 of the Code, has been held not to introduc-e any new law on the subject of consolidation, but iR merely dec-laratory of the declares of the eommon la,v. Reeenl decisions of our Supreme Court, notably the Jacobson case, eneourai'e us to believe that that court will liberally apply the common law doctrine against the restraint of tracle to all c~ntracts which may have the effpct, or be intended to have tht> effef't, to defeat or lessen competition, or to encourage monopoly "injurious to the public interests." 1\Ir. Cbief Justice Fuller, in Fowle v. Park, J31 U. S., page 9i, in discussing the question as to when the restraint of trade or the lessening of competition became invalid, says: "Public welfare is first considered, an,d if it be not involved, and the 59 restraint upon on,e party is not greater than protection to the other- requires, the contract may be sustained. The question is, whether under the particular circumstances of the case, and the nature of the particular contract involved in it, the contract is or is not unreason- able." 131 u. s. 97. After all, what is or what is not, such a consolidation as to defeat or lessen competition or to encourage monopoly within the meaning of our Constitution or of the common law, is "one which must be de- termined in each case upon its own peculiar facts and circumstances." 109 Ga. 716, h. n. 2, and at 730. vVhile, therefore, it cannot be determined as matt.er of law whether such a merger as you speak of is violative of tlie Constitution and laws of Georgia, it may he safely concluded that no court or jury could escape the conclusion on a submission of the facts as to the location of said lines and the object and effect of the merger that the same would be flagrantly in violation of the Constitution and laws of this State. 'T'he remedy would be to apply to the courts to enjoin such a con- tract, or to declare any such contract null an.d void, and to enjoin the joint operation of said roads by whatever method or device it may be attempted, and to appoint receivers to operate said roads separately in the interest of the public and their respective stockholders, until the management of the same shall be resumed by the proper corporate authorities of each corporation. It is true that the corporations named are foreign corporations, none of them, I believe, !Jeing chartered by the laws of this State; but cer- tainly they have no greater powers than our domestic railroad corpor- ations, and have no greater right to violate the laws of this State than have domestic railroad corporations. Such remedies have been applied to local corporations, and I see no reason why they may n.ot be a,vailed of in the case of a foreign corporation operating railroads in this State by permission, or under authority of her laws. Very truly yours, BOYKIN WRIGHT, Attorney-General. JUDGES Ol~ SUPRI~:\Il~ COURT-YACAXCIES '\YHBX AXD HO'\Y FILLED. September 4, 1902. Ron. A. D. Candler, GoYfrnor. Atlanta, Ga. Dear Sir:-Replying to your request for an opinion as to the legal' duty of the Governor, resulting from the resignation of the Ron. H. T. Lewis as .Justice of the Supreme Court, to take effect at once, will say: 60 1. '!'his resignation, if accepted as requested, imposes upon you the duty of appointing Justice Lewis's successor, "who will hold his office until the next regular election, and until his successor for the balance of the unexpired term shall have been elected and qualified." Acts 1893, p. 16. "'I'he next general election" will occur October 1, 1902, and the justice to be elected at said election to fill said Yacancy, will be "qualified" on the same day, and in the same manner that the Governor and other State house officers are, viz.: "during the first week of the session of the General Assembly," not later in that week than Saturday, October 25th, at twelve o'clock. meridian. 2. As above intimated, it is my opinion that "the provisions of the Constitution as to the transmission of the returns of the election, counting the votes, declaring the results, deciding when there is no election and when there is a contested election, applicable to the election of Governor" and other State house officers, apply to the election of justices of the Supreme Court. See Acts 189G, p. 15, and Code 5806, 5823, 5860. It is true that the Act of 1895, p. 15, reorganizing the Supreme Court and providing for the election of its judges by the people, does not specifically declare, as the law does in the case of the Governor and certain other State house officers, thwt the election returns shall be counted and published by the General Assembly. Indeed, the Act does not in so many words declare that the returns Rhall be counted and published by any one. All it declares is that said justices "shall be elected by the people at the same time and in the same manner as the Governor and State house officers are elected," and that the returns of said election "shall be made to the Secretary of State." I conclude, however, that since the justices of the Supreme Court are put in the same class with the Governor and other State house officers, and are to be "elected by the people at the same time and in the same manner," and the returns thereof are to be sent to the same officer, viz.: the Secretary of State, that the remainder of the procedure, with respect to the canvassing of the returns and declaring the result, must be the same as that applicable to the Governor and other State house officers. It appears to me that the Constitution makes it obligatory upon the Governor to appoint a successor to Justice Lewis to hold office only until the time when the justice elected by the people In October s!tall be 1ualified as aboye set forth. I think that an election by the people at the general election on October first, to fill said vacancy, is imperative under the Constitution. I have the honor to be. Very truly yours, BOYKIN WRIGH'I', Attorney-General. 61 OCCUPATION TAX-BROKEHS. September 6, 1902. Hon. william A. 'Vright, Comptroller-General, Atlanta, Ga. Dear Sir:-You ask me whether J. A. Rhudy, as broker or agent for the Armour Packing Company, is liable for an occupation tax under the Act of 1900, levying specific taxes "upon all agents of packing houses doing business in this State, $200.00 in each county where said busines'S is carried on." The character of business done by Mr. Rhudy is stated in his atfidaYit. as follo,vs: "GEORGIA, Carroll coun1y. Personally appeared before me J. A. Rhudy who, on oath, says he is a resident of the city of Carrollton, Carroll county, Georgia, and 'that his business is that of a merchandise broker; that in this business he sells flour, coffee, meat, lard, sugar, bagging an,d ties, and goods of such character, and among other people represents Armour Packing Com- pany as broker; that he gets orders through various customers in Car- rollton, and for sale of these goods sold for Armour Packing Company receives a commission as his only compensation; that he further says that he is not an agen,t of the Armour Packing Company, and repre- sents it only in capacity of a brol;:er, selling its goods on commission and has never in the past represented the said Armour Packing Com- pany only as a broker as above stated. J. A. RHUDY. Sworn to and subscibed before me, September 3, 1902. G. W. )JERRELL, Notary Public, Carroll coun,ty, Georgia. (SEAL.)" It does not matter what one calls himself, it is what lle does that fixes the status of his business. Mr. Rhudy admits that he, as broker, represents the Armour Packing company in selling its goods on commission in his county. I am of the opinion, therefore, that under the ruling of our Supreme Court in the case of Stewart v. Kehrer, decided at the October term, 1901, that Mr. Rhudy is liable for the occupation tax in question. I herewith return the affidavit and the typewritten copy of the Supreme Court decision in the above stated case. (2 enclosures.) Very truly yours, BOYKIN WRIGHT, Attorney-General. 62 REGIS'l'RATION 0]' VO'l'.cV. Price, Esq., Ordinary worth County, lsabella, Ga. Dear Sir:-I have )our favor of SeptembPr 14th in which you say: "Please read section 4176 of the Code, and the construction put on it in lOG Ga. 53, and let me know if it is the Coun:ty 'Judge's business to levy the tax instead of the Ordinary's.'" You further add: "V?e have no County CommissionerR, neither has there ever been any local Act conferring this authority on any other person." You do not say when n,or how the County Court of '\Vorth was established. From a search of the ~Iinutes of the Executive Oftice it is disclosed that the Governor appears to have first appointed a .Judge of the County Court of '\Yorth in 1894. I simply assume, therefore, that 63 your county about that time adopted the general law establishing county courts by having the grand jury recommend the same under the Act of 1871-2, page 288, as amended by the Act of 1878-9, pages 71 and 135, codified in the Code of 1895 in, sections 4170 e.t .~eq. I also assume in the absence of other information that previous to 1894 the Ordinary of your county exercised jurisdiction over the county matters. The question therefore which you submit for my opinion is whether since the establishment of the County Court in 1894 the conduct of county matters devoh-es upon the Ordinary or the County Judge. I have reached the conclusion that the said duties devolve upon the Ordinary, and not upon the County Judge. This conclusion has not been reached without difficulty, but my reasons for arriving at it are as follows: The Act of 1871-2 providing for the establishment of county courts, and conferring upon them the power to discharge all the duties formerly deyolving upon the Justices of the Inferior Court as to county matters, was a special law made applicable to only certain counties in the State, and it specially excluded from its operation a large number of the counties of the State by name, including the county of Worth. See Acts 1871-2, page 288. It is true that Act has been held to be constitutional and operatiye in all counties to which it was ma'de applicable whose grand juries thereafter adopted it, although such adoption by the grand jury might have taken place subsequent to the Constitution of 1877. See Thorpe v. State, 10() Ga. 53, Ct seq.; Phinzy v. Eve, 108 Ga. 363. 'l'hat Act was held to be valid becam>e it was passed before the Constitution of 1877. On October 18, 1879, two years after the Constitution of 1877 was adopted prohibiting special legislation in cases proYided for by general law and also requiring ur~iformity in county officers, the Legislature attempted to amend the Act of 1871-2 (then codified in section 279 of the Code of 1873) by striking a number of the counties, including \Yorth, mentioned in the exception clause of the original Act of 1871-2, with a view of making that Act applicable to said excepted coun:ties, including \Vorth. There was therefore no provision of law wllatsoeveJ: authorizing a County Court for \Yorth county until October 18, 1879. See Acts 1878-9, page 71. It was this Act, and this Act alone, if any, that authorized a County Court for \Yorth, and conferred upon it jm':lsdiction over coun,ty matters. It would seem that the county did nat undertake to adopt this law by recommendation of its grand jury for a number of years even after it was passed, a.s the records of the Executive Office show that the first judge was appointed in 1894, but I assume that it did do so then. Xow the question for determination is, was said Act of 1878-9, page 71, amending the Art of 1871-2, in so far as it sought to confer upon, the Judge of the County Court of 'Yorth the duties formerly devolving 64 on the Justices of the Inferior Court as to county business, constitutional. In my opinion it is not, for the reason that it undertakes since the Constitution of 1877 to create a tribunal (other than County Commissioners) for the transaction of county matters not uniform throughout the State, and for the further reason that it is a special Act passed since the Constitution of 1877, in a case provided for by general law. I do not think that the question submitted by you is covered by the decisions in 106 Ga. 53, and 108 Ga. 363. My conclusion therefore is that the Ordinary of 'Vorth county has been properly exercising the jurisdiction over county matters. Very truly yours, BOYKIN WRIGH'l', Attorney-General. STATE SCHOOL UOl\BIISSIONER. WHEN HIS TEK\f OF OFFICE BEGINS AND EXPIRES. State of Georgia, Attorney General's Office, Atlanta, September 8, 1902. Ron. G. R Glenn, State Shool Commissioner, Atlanta, Ga. Dear Sir:-I am this day in receipt of your official request for my opinion as to when your term of office as State School Commissioner expires, and when your successor's term will begin. I am also in re- ceipt of a letter from Ron. ,V. B. Merritt, the Commission.er-Elect, re- questing of me the same information. After careful examination of the Constitution and the constitutional amendment and Acts bearing upon the question, I have reached the conclusion that your present term of office began, on January 1, 1901, and will expire January 1, 1903. The Constitution of 1877 declares: "There shall be a State School Commissioner, appointed by the Governor and confirmed by the Senate, whose term of office shall be two years, and until his successor is appointed and qualified. * * *." Code, section, 5907. At the time of the adoption of this provision of the Constitution Dr. G. J. Orr was filling out an unexpired term of four years, ending January 1, 1881; hence the first appointment un,der the Constitution was Jarr uary 1, 1881, the term beginning on that day and ending .January 1, 1883. Dr. Orr was S1Jccessively reappointed for a term of two years January 1, 1885, and January 1, 1887. He died in December, 1887, and ,Judge J. S. Hook was appointed to fill out the unexpired term. He was reappointed January 1, 1889, for the full term of two years. On January 1, 1891, Prof. S. D. Bradwell was appointed and was reappointed January 1, 1893. His term expired January 1, 1895. when Gov- 65 ernor Atkinson appointed Dr. G. H. Glenn, for the full term of two year~ ending January 1, 1891. By Act approved December 18, 1894, the Constitution was amended so as to ch.ange the method of selecting the State School Commissioner .and providing for his election by the people. The constitutional pro- vision as thus amended read as follows: "There sh.aH be a State School Commissioner elected by the people .at the same time and manner as the Governor and State House officers :are elected, whose term of office shall be two years, and until his suc- eessor is eleded and qualified. * * *." It will be seen that the only change made by this amendment was by striking the words "appointed by the Governor and confirmed by the Senate," and inserting in lieu 'thereof the words "elected by the people at the same time and manner as the Governor and State House officers are elected." It did not in any way change the term of office, or the time when the term should expire. It was left in these particulars precisely as it was before the amendment. If the Legislature intended: to change the time when the term should begin from January 1st tO' the time when, the Governor and State House officers are inducted into office and thereby curtail the State School Commissioner's term by something over two months in the first election held under the amendment, it certainly would have used explicit language to accomplish this purpose. The first election by the people held under this amendment was in the general election, of 1898. If the Commissioner electeli at the general election of that year had been commissioned in the first week of the meeting of the General Assembly as other State House officers were, the then incumbent would have been deprived of something over two months of his term of office. There is nothmg in, the constitution as amended, or in the Acts of the Legislature showing any such purpose on the part of the Legislature when it changed it from being an appointive to an elective office. It is my opin,ion, therefore, that 'the then incumbent of the office in 1898, held until the first of January, 1899, and that each of his successors have held for two years, beginning January 1st, after the general election. It will be observed that there is nothing in the provisions with respect to this office making its term the same as that of the Governor and other State house officers, or indeed, chan,ging its term in any respect from beginning as heretofore, on January first, and expiring two years thereafter. It is my opinion, therefore, as before stated, that your present term will not expire until January 1, 1903. I have the honor to be, Very truly yours, BOYKIN WRIGH', Attorney-General. 5w 66 WHERE NOTES AND DISCOUNTS 011' BANI(S ARE RETURNED FOR TAXES. October 3, 1902. Dear Sir:-I am requested by you, for the County Gommissioners of Jackson county, for an opinion upon the following questions: 1. Where a private bank is situated in one county, and the owners and proprietors reside in another, in which county are the notes and accounts of said bank taxable? 2. When the taxes have been paid for a number of years to the wrong county, have the county authorities of said county the right to refund the tax to the taxpayer, or pay the same to the county to whom the taxes should have been paid? It appears from your letter that Messrs. H. & T. E. Atkins, of Maysville, are doing a private banking business at a place situated in said town in Banks county, and themselves reside in the same town just across the line in Jackson county, and have been for the past ten or twelve years paying taxes on the notes and accounts springing out of said business to the authorities of Jackson county, wherein they reside. It is now claimed by Banks county that these taxes were properly due to that county, as being the place wherein the office of the company is located. Jackson county claims that the taxes have been properly assessed to Messrs. H. & 'I'. E. Atkins in Jackson county, as being the domicile of the owners of said notes and accounts. Ordinarily, intangible property, such as moneys, notes, accounts, and other choses in action, have their ~itu.s for taxation at the domicile of the owner. The Code of Georgia, after prescribing wha:t corporations, companies and persons shall make returns to the Comptroller-General of the State, declares in section 826 as follows: "All other companies or persons taxed shall make their returns to the receiver of the respective counties where the persons reside or the office <>f the company is located," etc. Manifestly, the company of H. & T. E. Atkins, doing a business as private bankers in Maysville, Georgia, has located its office in Banks .county, and it would appear tnat under section826 of the Code, above quoted, that the property of said banking company is assessable for taxation in the county of Banks as a strict legal proposition. Where taxes have been paid voluntarily they cannot be legally reeovered by the taxpayer. If the county authorities of Banks. insist upon demanding these back taxes from Messrs. H. & T. E. Atkins, and the county authorities of Jackson are willing to refund them to the Messrs. Atkins to be paid to Banks, I see no legal difficulty in the way of the Commissioners of 67 Jackson county doing this simple act of justice. Counties, no mure than, individuars, should insist upon retaining money which has been paid them by mistake, and to which they are not entitled. Good law and good morals go together. Very truly yours, BOYKIN WRIGHT, Attorney-General. INDEX. A Page Accounts and notes of banks, taxed where ....................... 66 A. C. L. R. Co., merger with So. R. and L. & N. illegal . . . . . . . . . . . . 58 Advertisemen1s, publisher's fees ................................. 53 Advertisements, legal, fees prepaid .............................. 3-4 Agricultural Department, fertilizers .............................. 31 Alabama, W este1n Railway of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5 Appointments of Justices of Su.vreme Court .................... 59 Arbitrators, of railroad taxes ....................................... 50 Associations, voluntary insurance subject to Insurance Department. 37 Atkinson, R. R. Comr., Spencer R., Telegraph Cos. . . . . . . . . . . . . . . . . 54 Atkinson, Spencer R., duty as arbitrator ......................... 50 Atkinson, Spencer R., R. R. Comr., as tax arbitrator . . . . . . . . . . . . . . . 50 Atlanta & \Vest P. R. Co.'s certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Augusta Union Station, how taxed ............................... 38 B Baldwin county, local option and dispensary ..................... 44 Bank, school fund lost by failure of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Banks, notes and discounts taxed, where ., ........................ 66 Bankrupt, may continue with license ............................. 27 Boards, education, members not hold other offices ................ 20 Boards, school cannot make loans ..... : . ........................ 19 Bonds, conveyed in Trust Deed only pledge .................... .44, 46 Bonds, pledged outside State taxable here . . . . . . . . . . . . . . . . . . . . 6, 45, 47 Brokers, for packing houses pay occupation tax .................. GO c Candler, A. D., Governor, opinion to as to merger of railroads .... 58 Candler, A. D., Governor, opinion as to Supreme Court vacancies .. 59 Capital cases, disposed of in, Supreme Court in 1902 . . . . . . . . . . . . . . . 7 Central of Ga. Ry. Co., taxable on bonds pledged outside State ..... 45 Certificates, of land grants, how and to ~hom issued .............. 51 City bonds, taxable .............................................. 40 Closing, telegraph offices, when R. R. Commrs. may prevent. ...... 54 70 Page. Collaterals, owned in Ga. and pledged inN. Y., taxable here.. 6, 45, 47 Collateral securities, taxable to pledgor . . . . . . . . . . . . . . . . . . . . . . 6, 45, 47 Commerce clause, not apply to oil inspection ..................... 12 Commissioner, of Agriculture, fertilizers .......................... 31 Commissioner, State School, term expires when ................... 64 Commissioners, of Schools can not make loans . . . . . . . . . . . . . . . . . . . . 19 Commissioners and members of board ineligible to hold other offices . . . . . . . . . . . . . ...................................... 20, 24 Commissions, SoL-Gen. not entitled on fines collected .............. 26 Competing R . .K. Cos. can not merge ............................... 58 Comptroller-General, duty as to tax arbitrations .................. 50 Confederate veterans, right to free licenses ....................... 53 Constitution United States, not prohibit inspection oil ............. 12 Convicts, misdemeanor, time for good conduct .................... 11 Convicts, misdemeanor, when vote or hold office . . . . . . . . . . . . . . . . . 22 Counties, two conflict over taxes ................................. 28 County court, where no jurisdiction over county atfiairs ............ 62 Cook, Philip, Secretary of State, as to lan.d grants ................. 51 Court, Supreme, vacancies, how filled.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 D Dealers in futures, occupation' tax . ................................ 27 Debentures A. & W. P. R. Co's cPrtificates ............. 5 Defeasance clause, in Trust Deed makes it only mortgage ....... 45, 47 Depot, tax of S. F. & W. R. Co., Brunswick ....................... 35 Depot, tax of Ga. R. & B. Co., Augusta ........................... 38 Deputies, when may act for principal ............................. 31 Diplomas, as public teacher, when valid ......................... 37 Dispensary, Act establishing, displaces local option . . . . . . . . . . . . 44 Dublin public schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24 E Education, county boards of, not make loans . . . . . . . . . . . . . . . . . . . . . 19 Elections, of Justices Supreme Court, when ....................... 59 Elections, of Justices Supreme Court, returns, how canvassed and declared . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Exemption, Ga. R. & B. Co., how taxed and exempt ............... 38 Exports, when subject to inspection laws of Georgia ............. 12 F Farmers, inspection fertilizers for their benefit ................... 31 Federal laws, not prohibit inspection of oil ........................ 1~ 71 Page. Fees, for publishing legal advertisements . . . . . . . . . . . . . . . . . . . . . 34, 53 I<'ees, Solicitor-General, in certain tax cases ...................... 26 Felony, when reduced, still disqualifies to vote ..... .'............. 22 Fertilizers, law as to inspection of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Fertilizers, sale in bulk to farmers ............................... 31 Foreign corporations stock is taxable . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5 Foreign shipments of oil into and out of State .................... 12 Foreign securities located in other States, taxable here .............. 45 Forgery, wlltoa reduced to misdemeanor, can not vote ............. 22 Free licenses, to Confederates, when ............................. 53 G Georgia R. & B. Co. tax on shares 1V. Ry. of Ala ................. 1, 5 Georgia R. & B. Co. tax on certificates A. & W. P. R. Co ......... 5, 6 Georgia R. & B. Co., taxes on stock in 1V. Ry. of Ala. and de- bentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5 Georgia Normal School licenses, when valid ...................... 37 Georgia R. & B. Co., taxed on income ............................ l:l8 Glenn, G. R., opinion to, as to power of school boards ............. 19 Glenn, G. R., opinion school commissioners not hold other offices.20, 23 Glenn, G. R., opinion vaccinnation pupils . . . . . . . . . . . . . . . . . . . . . 25 Glenn, G. R., opinion license of teachers .......................... 37 Glenll,, G. R., opinion when term expired ......................... 64 Grants of land by State, how issued ................................ 51 H Howard, Hon. J. D., member-Legislature, as to dispensary ......... 44 I Imports, oil shipped into this State, when not . . . . . . . . . . . . . . . . . . . . . . 12 Inspection, fertilizer, law as to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Inspection, oil, subject or' ........................................ 12 Interstate commerce, inspection oil .............................. ~2 Insurance companies, charter in 1868 not subject to Ins. Dept. . . . . 54 Insurance companies, what are subject to Ins. Dept ............ 37, 54 J Justices, Supreme Court, vacancies in, .how filled .................. 59 72 L Page. Land grants, how and to whom issued ............................ 51 Land, lying partly in two counties, how taxed ..................... 28 Legal advertisements, what and how paid ....................... 3(:) Legal advertisemen,ts, publisher's fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Lessee of S. F. & W. R. R. property for depot, how taxed ......... 35 Lessees of Ga. R. & B. Co., depot in Augusta, how taxed .......... 38 License, of dealers in futures, after bankruptcy ................... 27 :Licenses, to teach public schools, when valid ...................... 37 Liquor, dispensary act supersedes local option ........... .'........ 44 Loans, to pay teachers public schools, illegal ..................... 19 Local option, displaced by. dispensary Act . . . . . . . . . . . . . . . . . . . . . . . . 44 Louisville & N. R. Co., merger with other R. Cos. illegal. ......... 58 Louisville & N. R. R. Co., lessees of Ga. R. & B .. Co., v. Comptroller General Wright . . . . . . . . . . ................................. 1, 5 'M.anufacturer's Ins. Co., subject to Insurance Department ......... 37 Merger of competing railroads, un,constitutional .................. 58 Misdemeanor convicts, time for good conduct ..................... 11 Misdemeanor convicts, when can not vote or hold office ........... 22 Moral turpitude, convicted of crime of ........................... 22 Mortgage, pledge of securities in Trust Deed, only .............. 45, 47 Mount Vernon, telegraph office at, closed . . . . . . . . . . . . . . . . . . . . . . . . 53, 54 Municipal, bonds taxable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 40 N Normal School of Georgia, license of ............................ 37 Notes, etc., of ban,ks taxed where bank is ......................... 66 0 'Oath, to taxpayer may be administered by deputy . . . . . . . . . . . . . . . . 31 Occupation tax, packing house brokers pay ....................... 61 . Office, one convicted crime can not hold when .................... 22 Officers in school board can not hold other offices . . . . . . . . . . . . . . . . . . 20 Officers, what, may have deputy ................................. 31 Oil, inspection of, shipped into and out of State . . . . . . . . . . . . . . . . . . . 12 Ordinary, when transact coun,ty business . .'. . . . . . . . . . . . . . . . . . . . . . G2 73 p Page. Park, R. E., treasurer's duty in registering State bonds ........... 30 Pledgor, of securities pledged outsi-de State, taxable here ........ G, 45 Prison Commission, opinion to, as to convicts' "good time" ...... 11 Public obligations, taxable ....................................... 40 Public schools, county boards cannot borrow, when . . . . . . . . . . . . . . . 19 Public schools, diplomas and licenses of teachers .................. 37 -Public Schools, members of board and commissioners ineligible to hold otl.Jer offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Public schools, members board must reside in district ............. 24 Public schools, vaccination of pupils, expenses . . . . . . . . . . . . . . . . . . . 25 Public schools, State Commissioner's term expires when 64 Publisher's fees, what and how paid .... 34 n Railroad, taxed on unfinished road . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 H.ailroad, merger of competing, illegal . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Hail road, securities pledged outside State taxable here .......... 4:1, 47 Hailroad, Ga. R. & B. Co.'s depot in Augusta, how taxed ........... 38 Railroad, S. I<'. & W. R. Co.'s depot, B.runswick . . . . . . . . . . . . . . . . . . . 35 Railroad commissioners, duty as arbitrators ...................... 50 Railroads, Central of Ga., taxable on bonds pledged outside State ..!G, 47 Receiver of taxes may have deputy .............................. 31 Registration, of State bonds ...................................... 30 Registration, of Yoters, meaning of section 47, Code .............. Gl Returns for taxes, made by priYate bankers, where bani;: is ...... GG Returns, of elections for Supreme Court, how canvassed and de- dared ...................................................... 59 s Sale of fertilizers, inspection, tags, etc........ . . . . . . 31 S. F. & W. R. Co., tax depot in Brunswick ....................... 35 S. F. & vV. R. Co., tax on incomplete railroad ..................... 35 Savannah Grocery Co., inspection its oil .......................... 12 School boards, what loans can n,ot make .......................... 1U Schools, funds lost in insolvent banks, commissioner and his bond liable ...................................................... 19 Schools, licenses to teach, what valid .............................. 37 Securities, pledged outside State taxable here .................. 45, 4j' Secretary of Sta:te, duty as to land grants ........................ 51 Sheriff's advertisements, fees for .............................. 36. 5:1 Solicitor-General's fees and commissions in certain ea:o;es ........... 20 74 Page. Southern R. Co., merger with L. & N. and A. C. L., illegal ........ 58 ::State bonds, taxable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 40 ::-ltate bonds, how registered .................... ........ 30 State School Commissioners, term expires when .................. 64 Stevens, 0. B., opinion to, on oil inspection ...................... 12 Stevens, 0. B., opinion on fertilizer inspection . . . . . . . . . . . . . . . . . 31 Stocks, in foreign corporation taxable here ..................... 1, 5 Stocks and other securities pledged outside State ........... U, 45, 47 Supreme Court, vacancies, when and how filled ................... 59 T Tax. brokers of packing-houses, must pay ......................... 01 Tax, Ga. R. & B. Co. on shares in \V. R. Ala .................... 1, 5 Tax, Ga. R. & B. Co. on certificates of A. & \V. P. R. Co ........ 5, U Tax, securities pledged outside State, taxable. here . . . . . . . . . . 6, 45, 47 Taxes of banks returned where office is . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Taxation, dealers in futures, occupation tax . . . . . . . . . . . . . . . . . . . . . 27 Taxation, duty R. R. Commissioner when arbitrator .............. 50 Taxation, fees Sol.-Gen. in certain cases .......................... 2G Taxation, free license to Confederates, when ........... : .. : ...... [)3 Taxation, Ga. R. & B. Co., taxed on income ...................... 38 Taxation, land lying partly in two counties .................... 28 Taxation, S. F. & W. R. Co. depot in Brunswick .................. 35 Taxation, S. F. & \V. R. Co. incompleted railroad is taxable ........ 35 Taxation, State and municipal bonds taxable .................... 40 Taxation, Union Station of Augusta, how tax~d, .................. 38 Tax-receiver may have deputy .................................. 31 'reachers, in public schools loans to pay, illegal ................... 1U Teachers, how licensed and when valid . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Telegraph companies subject to Railroad Commissioners . . . . . . . . . . 54 Treasurer of State, duty to register bonds................. . ... 2\l, 30 Trust Deed, to secure debt, only pledge, here ................. .45, 47 u Union Station, of Augusta, how taxed ............................ 38 \' Yacancies in Supreme Court, how filled .......................... 59 Vaccination of pupils in public schools ........................... 25 Veterans, Confederate, right to free license ................. .- ..... 53 Voluntary and individual association for insurance ................ 37 Voters, registration of, law interpreted ........................... 61 75 w Page. western Ry. Ala., shares stock taxable if held he~e ............ 1, 5 worth county, Ordinary and not county Judge transact county busi- ness ....................................................... 62 vVright, w. A., opinion to, that Cen. R. R. securities pledged in N". Y., taxable here ....................................... .45, 47 Wright, \V. A. license tax of dealers in futures....... 27 'Vright, W. A., how Augusta union Depot taxed ................. 38 'Vright, ,Y. A., occupation tax on certain brokers ................. 61 Wright, \V. A., opinion as to Solicitor-General's fees . . . . . . . . 26 Wright, ,V. A., State and city bonds taxable ...................... 40 vVright, \V. A., taxing land lying in two counties ................. 28 Wright, \V. A., taxing S. F. & W. R. depot in Brunswick .......... 35 vVright, W. A., what Ins. Cos. under Ins. Dept ................. 37. 56