The first annual report of John C. Hart, Attorney-General of Georgia, with an appendix containing opinions

THE FIRST ANNUAL REPORT
OF
JOHN C. HART
ATTORNEY-GENERAL OF GEORGIA
WITH AN APPENDIX CONTAINING OPINIONS
JUNE, 1903

ATLANTA, GA.

w. GEO.

HARRISON, STATE PRINTER

"The Franklin Printing and Publishing Company

1903

REPORT.
STATE OF GEORGIA.
ATTORNEY-GENERAL'S OFFICE.
To His Excellency, Jos. M. Terrell, Governor: SIR :-In view of the recent change in the time of
meeting of the Legislature, and because of the change in the personnel of this office, it is impossible to comply with section 233, volume I of the Code touching the "annual reports'' of this office. The report, therefore, will be confined to such matters as have transpired since my induction into office, and up to the Ist day of June I93
I qualified and assumed the duties of this office on the 25th day of October, r 902, succeeding Hon. Boykin Wright. Owing to th, very thorough and able administration of this office by my predecessor, I found but little unfinished business remaining. I found two cases of considerable importance to the State pending, viz: State of Georgia vs. The Louisville & Nashville Railroad Co., and Th Atlantic Coast Line Railroad Co. The history of these two cases is given by Hon. Boykin Wright in his annual report to the Legislature bearing date October 22, I~' ~. As reported by him, the State lost the case against .. le Louisville & Nashville Railroad Co., and The Atlantic Coast Line Railroad Co., in the Circuit Court of Appeals on the day of October,

4
1902. Together with Mr. Wright we filed an application for writ of certiorari and presented in person to the Supreme Court of the United States, and after investigation by that Court, the writ was sanctioned. In view of the fact the writ of certiorari is very sparingly granted from the judgment of the Circuit Court of Appeals, the action of the Supreme Court is of considerable significance. It does not follow as a matter of course that the Court on a final review of the case will reverse the Circuit Court, yet it demonstrates that the Court, at least, regards the application as prima facie meritorious. This case will be reached in its order, probably in March next, unless upon motion to advance it is sooner heard. The question involved is the controversy, whether or not shares of stock of a foreign corporation, held by a resident of Georgia, is subject to taxation against such resident, as other personal property. The amount of shares of stock involved is fifteen thousand ( rs,ooo) of the par value of One Million Five Hundred Thousand Dollars ( $r,soo,ooo.oo). Besides the value of the property the principle involved is important. The final result of this litigation cannot be foretold. Hon. Boykin Wright, by reason of previous employment as well as following the precedents of this office, has been retained to assist me in the further prosecution of this case. The services rendered by him in the application for the writ for cer tiorari w~re invaluable, and the credit is largely due him for the State's success so far in the litigation.
While the tax cases remaining, to wit, the debenture case, and the stock sought to be taxed as property of the Central of Georgia Railway, are not necessarily controlled in the litigation above described, yet, a decision upon the questions raised and. now pending in the United States Supreme Court, will very largely tend to simplify the issues involved in the other case.

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CAPITAL CASES.
During my administration, so far, I have, in obedience to the Constitutional requirement, represented the State in the following capital cases.
OCTOBER TERM, 1902.
Ebb Patton. v. The State. Polk County. Judgment reversed.
Tom McPhail v. The State. Crawford County. Judgment affirmed.
Joe Cleveland v. The State. Irwin County. Judgment affirmed.
John Perry v. The State. Whitfield County. Judgment affirmed.
J. H. Bryant v. The State. Colquitt County. Judgment affirmed.
Jack Reeves v. The State. Haralson County. Judgment affirmed.
Aaron Guard v. The State. Bulloch County. Judgment affirmed.
Tom Hardy v. The State. Richmond County. Judgment affirmed.
Andy Clark v. The State. Walton County. Judgment affirmed.
Monroe Adams v. The State. Sumter County. Judgment affirmed.
Mitch Brice v. The State. Lowndes County. Judgment affirmed.
Eli Jones v. The State. Sumter County. Judgment affirmed.
John Petty v. The State. Fulton County. Judgment affirmed.
MARCH TERM, 1903.
Dennis Miller v. The State. Glynn County. Judgment affirmed.

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John Walker v. The State. Thomas County. Judgment reversed.
W. S. Andrews v. The State. Montgomery County. Judgment affirmed.
Wyley Jones v. The State. Paulding County. Judgment affirmed.
Abe Cohen v. The State. Chatham Countv. Judgment reversed.
Andrew Lamb v. The State. Laurens County. Judgment affirmed.
W. J. Potter v. The State. Chatham County. Judgment reversed.
Willie Calvin v. The State. Chatham County. J udgment affirmed.
Jno. Robinson v. The State. Monroe County. Judgment affirmed.
WESTERN & A'I'LAN'I'IC RAILROAD.
On December 16, 1902, the General Assembly passed an Act requiring that the Attorney-General of the State, without compensation, should perform the duties heretofore performed by the Special Attorney of the W. & A. R. R. I have as best I could acquainted myself with the condition of the affairs of this department. There were two cases pending in the Court touching this property, viz.: the suit against the Southern Railway Co,, involving the encroachments in the City of Atlanta and along the line of the Road to a point near Bolton, as shown by the official maps; and the suit filed by the Lessee Company against the Central of Ga. Ry. Co., for certain property in Fulton county, involving part of the right of way of the W. & A. R. R., and known as the old Monroe R. R. right of way. The Supreme Court of Georgia, at the March Term, 1902, in a case between the State of Georgia and the Southern

7
Railway Co., touching encroachments on the right of way of theW. & A. R. R., in Whitfield county, which decision is reported in the Southeastern Reporter, volume 42, page so8, decided that the suit instituted by the State was prematurely brought. I was informed by Hon. E. T. Brown, the Special Attorney of the W. & A. R. R., that an agreement had been made to make this case, last mentioned, decisive of the State's right in the suit first above mentioned. In view of the agreement made, and especially since the decision referred to necessarily controls the case, even in the absence of agreement, I directed that the suit first above mentioned be dismissed for the reason that it was prematurely brought. It was decided in the Whitfield county case that the State could not maintain the suit until after the termination of the lease. I accordingly prepared an order reciting the fact that the cause was similar and the parties the same, and for the reason that the suit was prematurely brought, directed it dismissed. The State, therefore, at the expirations of its lease, may, if it sees fit, renew the same.
The other remaining case, to wit, The Central of Ga. Ry. Co. v. TheW. & A. R. R. is now pending in Fulton Superior Court. The question there involved is whether the Central of Ga. Ry. Co. owns certain valuable terminals now in possession of the Lessee Company. These terminals are of great value to the State and in my opinion the State's title is paramount. The Lessee Company of theW. & A. R. R. is now in possession of this disputed right of way. The State's case is prepared for trial and only awaits the consent of opposing counsel to fix the time of hearing.
Upon the application of the Lessee Company I have approved, in pursuance of law, the petition of several parties for encroachments upon the right of way, but in

8
every instance required a clear recital recogmzmg the State's paramount title and a termination of the privilege granted, with the expiration of the lease. Owing to the pressure of duties of this office I have been unable to personally inspect the physical property of theW. & A. R. R., which I would have done for my own satisfaction, although I do not understand the law imposes upon me such duty.
On December 16, l895, the General Assembly passed an Act providing for official surveys of the W. & A. R. R., for the filing of maps thereof in the offices of the Secretary of State, and Clerk of the Superior Court of the several counties through which said road runs, for giving to such maps when so filed all the force and effect of a record of deeds to lands, etc. In pursuance of that Act a survey was had and on June II, I 897, the same was officially approved and filed. The purpose of the official survey and maps was to fix with certainty the boundary and extent in full of the right of way of the W. & A. R. R., and also all terminals, depots, parks and other real estate purchased and held in connection with the railroad. Until the maps of the official survey were filed there were no definite boundaries to the State's right of way or properties, and not infrequently the lines were so vague and unsettled that adjacent property owners were unable to locate their own lines. This official map was of great importance, but to perpetuate its importance it is necessary that appropriate changes should be made therein, as from time to time necessity or conditions should require.
On the 21st of December, 1897, a resolution was passed by the General Assemby providing for a hand book of the W. & A. R. R. The recitals in the preamble set forth the importance of this matter, viz.: to preserve much that is valuable in connection with this property

~)
and because a large amount of information has accumulated in the office of the Special Attorney which is valuable, and because of its transitory nature would pass away unless preserved in permanent form. It was contemplated that the volume should set out substantially or at large, all reports of officers, legislative committees and special commissions, in so far as they were of abiding interest, it being the purpose to preserve the legislative, executive, judicial, and physical history of the W. & A. R. R. If this has ever been done I am not aware of it, but that it should be done I am deeply impressed. During my short connection with this important duty I have felt very keenly the necessity of collecting in durable and substantial form the testimony, the reports of committees and commissions, judicial decisions touching the property, and the history in detail of this railroad. The records touching this valuable piece of property of the State are scattered through the various books since the enterprise was first begun. Often indifferently or poorly indexed, escaping the most vigilant eye, or found in records and archives in first this, and then the other department of the State and in the reports of the legislative committees or special commissions, filed away without any definitely fixed purpose of keeping them in position of ready access. I hope to be able to undertake this work, though I confess to an inability on account of a want of knowledge and limited time in connection with the other duties of this office to perform satisfactorily this important work.
SCHOOL LANDS.
Touching the school lands reserved by the Act of r8r8, on page 305, that is to say lots numbers ro and roo in each surveyor's district which were reserved by said Act and set apart for the education of poor children, legis-

10
lation has been enacted from time to time touching these lands. As late as r89o, page 542, volume r of the Acts of the Legislature, the State reaffirmed its title to the Lmc's in question.
Your Excellency, very properly, I think, conceived it to be your duty to recover these lands as property due the State. An investigation of the status of the lands in question disclosed the fact that it would involve the filing of several hundreds of suits in order to assert the State's rights. It was manifestly impossible for this office to undertake alone this momentous work, and in pursuance of a contract made by your Excellency in January 1903, which contract is of file in this
office, as well as in the Executive office, Messrs. J. \V.
Haygood and B. B. Cheney, of Fitzgerald, and Eldridge Cutts, of Abbeville, were employed as special counsel to assist this office in the prosecution of the State's claims. In conformity with the terms of that contract the said special attorneys on June rsth inst. reported in detail the status of the litigation so undertaken. A summary o that report is, they have filed in the county of Berrien 3 snits; in the county of Coffee ro; in the county of Irwin 2; in the county of Colquitt r ; in the county of J\Iiller I ; in the county of Thomas 8 ; in the county of \Vare 2 ; in the county of \Vorth 7. They have reported sales of two lots in the county of Berrien, to wit, lot No. roo in the Tenth District of Berrien county and lot No. ro in the Ninth District of Berrien county. The first lot sold for $57 s.oo and the second for $r,soo. On l\1ay 7th I received from the sale of these two lots a net balance of $r,sr9.46, which amount was covered into the Treasury.
On April24, 1903, as a result of the compromise between Dorminey, -warren & Co. for turpentining lot No. ro, in the Fonrth District of Coffee county, the State received as

11
damag<>:s therefor the sum of $200. Twenty-five per cent. of this recovery was paid the special attorneys as compensation, and on April 29, 1903, I turned over to
the Treasurer the net sum of 'ftrso. It will be noted 7
therefore, that the total net collections to the State amount so far to $r,669-46, which money has been paid into the Treasury, and this office holds receipts therefor..
I have investigated the status of these lands sufficiently to authorize the conclusion that in some instances the present holders thereof have purchased the same in good faith, have erected valuable improvements thereon, have been in posession of the land over half a century, and for the State to insist on a technical right of recovery under these conditions, in my judgment. will be inequitable, and, to say the least of it, ungenerous. On the other hand, it is apparent that there are claimants who are not holding in good faith, as well as trespassers in cutting timber for lumber purposes, or farming the same for turpentine, well knowing that neither they nor their grantors had any valid title to the land. The status of these two classes of persons is quite different, and while the State should act liberally with the one, the other has placed himself beyond the bounds of sympathy. I would therefore suggest that where it is apparent the owner is in possession of the land, and holds for many years in good faith, and where he has erected valuable improvements thereon, believing that he has 'a good title, legislation should be provided for the submission of this contention to a jury, and where it appears that these things exist, to limit the State's right of recovery to the value of the land before the improvements were placed thereon.

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NEEDFUL LEGISLATIOK.
I believe it is my duty to suggest in my annual report any needful legislation touching the executive administration of the State.
In a recent decision by our Supreme Court, and by a division of three to two, the Court in Jones vs. Stewart, tax collector, the latter having issued an execution against Jones, as delinquent dealer in cotton futures, decided that a special occupation tax such as this could not be collected except after indictment and conviction. In the opinion of the two justices dissenting the State had both remedies-the right to issue an execution, and to proceed criminally against the delinquent taxpayer. The executive branch of the government for many years had collected the revenues of the State in accordance with the minority opinion of the Court. 'This decision, which holds under the Tax Act of 1900, that the remedy by criminal prosecution is exhaustive, will apply with equal force to the General Tax Act of 1902, for the provisions touching the method of the collection of special taxes are substantially alike.
This opinion of the Supreme Court will greatly impede the collection of special occupation taxes, and I recommend that the Legislature amend the Tax Act of 1902, so as to give to the State both remedies for the collectiQn of taxes, viz.: the right to issue an execution therefor, and the right to prosecute a person who carries on the occupation taxed, refusing to comply with the law. That the State shall have the right to speedily collect its revenues, so essential to its existence, is apparent, and a procedure which requires the State to prosecute to conviction in the criminal courts of the State a tax defaulter, must seriously impede and embarrass the arlministration of the laws of the State. The col-

10
lection of its revenues should not be left to the uncertainty of verdicts in criminal cases. Besides, it puts the State to the great disadvantage of requiring it to prove the guilt of the defendant beyond a reasonable doubt, while in a procedure based upon a civil execution the requisite amount of proof would be the weight of credible testimony.
OFFICIAL OPINIONS.
I herewith submit with this report such official opinions rendered by this department to the several departments of the State, as are of general interest.
FRANCHISE TAX.
It will be borne in mind that the Legislature at its last session enacted what is known as the Franchise Tax Law. As yet no case has arisen testing the constitutionality of that Act. On account of its novelty, so far as Georgia is concerned, as well as because of its momentous importance to the State, I have given to the subject, and the law enacted, a full and thorough investigation. Without being able to say with positive certainty, it is my opinion the Act is constitutional, and will successfully stand any attack which might be made upon it in the Courts of the country.
In the discharge of the duties of this office, which seem to be constantly increasing and at times extremely arduous, I have been ably assisted by my stenographer, Louis R. \Vaddey, whose worth and efficiency are such as to deserve this public recognition.
Respectfully submitted, JNO. C. HART, Attorney-General.

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OPINIONS.
November, 28, 190:2.
Governor :-I beg to acknowledge your letter enclosing etatement of fact, and requesting of me a written opinion, whether, under the statement of fact, Mr. Harris, as chief of police of the city of LaGrange, was entitled to a reward for the arrest and conviction of one Carrie 'Vellborn. In my opinion the officer is not entitled, under the statement, to the reward. The terms of the proclamation issued by Gov. Candler, required, as condition precedent to the payment of the reward, first, the arrest and detention of Carrie Wellborn, charged with the offense of assault with intent to murder; second, that she be brought to trial for the offense of which she stands charged
and " with sufficient evidence to convict" it appears that the officer did arrest her but that ~he was ''never brought to trial for the offense of which she stands charged," but was bound over by the Justice of the Peace who was acting as a court of inquiry for the offense of assault and battery and she plead guilty in the City Court. of LaGrange to this offense. It is apparent, therefore, that the terms of the reward have not been complied with. The publication of the reward is, at most, but a proposition to the public, or to an individual, that if the conditions of the reward are complied with the i::ltate will pay the person or persons performing these conditions so much money as compensation for such service. 'Vhere there is an acceptance of the:reward by performance of the terms, then the proposition becomes a contract, subject to the same laws, rules and regulations as other contracts. Proof to convict is a stip ulation in the reward and it is an essential specification. I do not know that it is absolutely necessary in order to substantially comply with these terms, "that the offense must be proven as charged," but it is essential that the conviction shall be for a felony, for the lawrestricts the GJvernor in the payment of a

15

reward to the apprehension of the "perpetrator of a felony."

The Governor cannot pay a reward in cases of misdemeanor. It

must follow, therefore, that the officer is not entitled to the re-

ward for two reasons. First, the person arrested by him was

not only not convicted, but was not even tried, for the offense

ch uged ; and secondly, because she plead guilty to a misde-

mecmor, and the Governor has no power, under the law, to pay

rewards for the apprehension and conviction of persons guilty

of misdemeanor.

Respectfully;

JNo. C. HART,

Attorney-General.

November 20, 1902.

Governor :-In reply to the inquiry submitted to your office

through the Chairman of the Committee on Appropriations, and

which yon hav~ referred to this office for reply, to wit: Can a

" special " appropriation be included in the " general " appro-

priation bill? I beg to say, it cannot. Section 577'2, paragraph

9 of the Constitution, is as follows: " The general appropria-

tion bill shall embrace nothing except appropriations fixed by

previous laws, the ordinary: expenses of the Executive, Legisla-

tive and Judicial departments of the government, payment of

the public debt and interest thereon, and the support of the

public institutions and educational interests of the State. All

other appropriations shall be made by separate bills, each em

bracing but one subject." The provisions of the law are clear

and need no further argument to support the opinion above

expressed.

Respectfully,

c. JNO.

HART,

Attorney-General.

I:"f RE EXTRADITION OF EARNEST HUGULEY ON APPLICATION OF

THE GOVERNOR OF ALA.BAJ.\IA.

To the Governor:

May 19, 1903.

Dear Sir :-In reply to your inquiry this day submitted

whether, a> the Chief Executive of the State of Georgia, you

16
t~hould, under the facts disclosed in the requisition papers forwarded by the Governor of Alabama turn over to the designated authority, Earnest Huguley, charged with the crime of embezzlement in the State of Alabama, the requisition pro.ceedings on its face are regular. The alleged fugitive is charged with a felony, to wit, embezzlement. The exact question raised, as I understand it, is whether your Excellency has the authority, and in the absence of authority, whether it iS your duty to inquire into the character of the alleged crime with the view of determining if the evidence disclosed the transaction complained of, is a crime, i. e., it is the insistence of the fugitive that he has the right to urge, and that it is your duty as Chief Executive, to inquire into his guilt or innocence. He contends that the money alleged to have been embezzled by him, was not in fact embezzled, but was entrusted to him for the purpose of being used in a gambling contract, to wit: to be used in the purchase and margins of future cotton contracts. His insistence is, that such a contract is a gambling contract, that it is not enforceable, that the law will not undertake to fix either a civil or criminal liability upon him for the use of funds entrusted to him to be used in an illegal transaction.
In my opinion it is not within the province of the Chief Executive of the State to inquire into the innocence or guilt of the accused. It is his duty as Chief Executive to scan the papers with the view of determining whether or not the requisition is in form, and where the same is in form, to honor it.
Apropos to this opinion I quote the following from the 103 Ga., page 472, "The right of one nation to demand the delivery of an offender against its laws who has taken refuge in another State, depends usually upon treaties between the respective countries. These treaties the courts should regard as a paramount law of the land, and whenever called upon to expound or enforce them, they should protect with vigilance the plighted faith of their government."
The Con8titution of the United States provides as follows: " A person charged in any State with treason, felony or other crime, who shall flee from justice and be found in another State, shall on demand of the Executive authority of the State

17
from which he fled, be delivered up to be removed to the Rtate having jurisdiction ot the crime." In pursuance of this Constitutional provision Congress has enacted the following statute, "whenever the Executive authority of any State or Territory demands any person as a fugitive from justice, of the Executive authority of any State or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony or other crime, certified as authentic by the Governor or Chief Magistrate of the State or Territory from whence the person so charged has fled, it shall be the duty of the Executive authority of the State or Territory to which such person has fled to cause him to be delivered and secured, and to cause notice of the arrest to be given to the Executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear," etc. Revised Statutes of the U. S. 5278.
It will be observed that the alleged fugitive, whose extraditi-)n is demanded, must simply be charged with the commission of a crime against the laws of the demanding State. The Executive of the asylum State could, if he saw proper, investigate the issues of fact and could decline to issue the warrant of extradition. I do not know of the power possessed by any State, nor in any branch of the Government of the United States, State or Federal, that could coerce the Governor into granting a requisition. It is his moral duty, however, in every case where the proceedings on their face are regular, where there is a crime charged within the language of the statute, where there are no reasons for his believing that it is persecution rather than prosecution, to grant and issue his requisition. He owes this to the sister State. On the other hand, if the charge is irregular, if the offense alleged is not one in the meaning of the statute for extradition, as disclosed by the requisition, that it is an effort to use the criminal processes of the court to enforce a civil liability, it is the duty then of the Governor to refuse the requisition.

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ln this case the proceedings are regular, the charge is one

that authorizes extradition, and, in my opinion, the contention

of the fugitive, that the money he was entrusted with was to

be used in a gamb:ing venture, does not afford a sufficient jus-

tification for the refusal to deli vor up the fugitive. In other

words it is the purpose to m:tke of the Governor a trial court to

pasl upon the innocence or guilt of the accused, in a jurisdic-

tion far removed from the scene of the alleged crime; this is

n0t among the duties of the Executive. Whether he is guilty

or innocent of the crime chctrgerl is a question for the court5 to

decide, in the courts where the crime is said to have been com-

mitted.

Respectfully,

JNO. C. HART,

Attorney-General.

December 17, 1902.
His E:ccellency, Joseph M. Terrell, Capitol.
Governor :-I beg to acknowledge your communication enclosing House Bill No 232, establishing the City Court of Waynesboro. I note your inquiry whether the Legislature can legally name certain citizens of Burke county to be the Judge and Solicitor of the City Court of Waynesboro.
As a general proposition it may be stated, the right to hold public office in ll-eorgia must have originated, or been conferred, either by an election to the office by the people, by the Legislature, or by Executive appointment. The Judge and Solicitor of a City Court are public officers in the meaning of the Constitution. In fact, a Judge of a City Court may preside, under certain conditions, in the Superior Courts. (Code, Section 5851.) It is an office, therefore, of great dignity and power, and surely the Constitution has made some provision for his election to office, if not in terms, then by implication and construction.
The title to the office of Judge and Solicitor of the proposed City Court is based, in this inst~tnce, solely upon the legislative act creating the Court. The act of creating the Court is, of

19
course, within the scope of the legislative authority. There can be no trouble about that. But under what classification is the act of naming certain citizens to become the Judge and Solicitor thereof? Is this an election by the Legislature? If so it cannot avail, for the Constitution prescribes the way and manner in which elections by the General Assembly shall be conducted, viz:
"All elections by the General Assembly shall be viva voce, and the votes shall appear on the Journal of the House of Representatives. 'Vhen the Senate and House of liepresentatives unite for the purpose of elections, they shall meet in the Representative Hall and the President of the Senate shall, in such case, preside and declare the result." Sec..5788
The title therefore to these offices is not good, based upon that theory, for no election was held as prescribed by the Constitution. If the title fails because not good as an election, can it be upheld as good because of an appointment? This is either an election or an appointment. It must be upheld as one or the other, if good at all. As tar as the public is concerned, it may as well be one as the other. So far as the offices are concerned, it is one and the same thing, and for the purpose of this discussion the two terms "election and appointment" are synonymous. For the reason above given the act is void as an election. If it is an appointment by the Legislature, the inquiry is pertinent '' whera do they get that power?" The power of appointment is not one incident to legislative functions. It could not be assumed by the Legislature. The power of appointment, however, is Executive. There is an apparent conflict on the subject as to whether an appointment is intrinsically an Executive act. See 1:3 Am. St. Rep., 13.5; 2 Am. & Eng. Ency. Law (2d Ed.), 475 4), 6 Ibid., 1010 (7); 1011 (1). An inspection, however, of these authorities, will show that the conflict is more apparent than real. In those cases where the Legislature was held to have the power to make the appointment, it will be seen that the officers appointed were

20
commiEsioners, trustees, librarian, police commissioners, municipal or county officers. In Georgia, the Judge of the Superior Court has been held authorized to appoint registrars, commercial notaries. Russell v. Cooley, 69 Ga. 21.5. These officers do not belong to any one of the departments of the State government and it seems very clear that the distributive clause of the State Constitution applies only to the three great departments of State government, and not to municipal or county affairs. 63 Am. Dec. 4158. \Ve often see a mayor presiding and voting in the city council, which is the legislative department of the city government, exerci:ing judicial power as recorder and executive power as mayor. This is perfectly proper, because the prohibition in the Constitution is aimed against either of the departments of State government encroaching on another State department. Because the Judge of the Superior Court can appoint a registrar, it does not follow that the Legislature could authorize him to appoint the Judges of the City Courts in his circuit, because to do so would empower a judicial officer to exercise an executive functinn in appointing other members of the State judiciary. The power of appCJintment, therefore, is an executive act in its very nature, ana the General Assembly is prohibited from making such appointments by the distributive provision in the Constitution prohibiting it from exercising executive functions. (Code 6720.)
"The legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one shall at the same time exercise the functions -of either one of the others, except as herein provided."
The Constitution in terms nowhere gives to the Legislature either the right to elect or to appoint the Judge and Solicitor of a City Court. It is silent in terms, 'tis true, as to the method of filling such offices, but the statutory law clearly points out the manner in which these officers shall be appointed and specifically designates the power of appointment. It is expressly required that the Chief Executive shall appoint certain officers, where there has been no provision made by the Constitution and laws. In designating the duties of the Executive, Section 132, Volume 1 of the Code of Georgia, says :

21
"He shall appoint all officers, and fill all vacancies, unless otherwise prescribed. by the Constitution and laws. All appointments to discharge a public duty by the General Assembly, or by the Governnr, under its authority, are declared to be officers within the meaning of the Constitution."
Since the Constitution fails expressly to provide for the ap pointment of tllese offices, do they not fall witllin this general law? Is it not in fact the equivalent to saying that thet:e identical officers are to be appoi1ted by the Chief Executive? This, therefore, is the general provision made by law for their appointment. To alter it by special act changing it to an appointment, or election, by the Legislature, in a given instance, would run counter to the further Constitutional provision, to wit:
" Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law." Section 5732.
The office of Judge and Solicitor of a City Court are public offices, and the Constitution in not having expressly provided the manner of their election, they become offices not provided for by the Constitution and laws, and therefore appointed hy the Governor. It is not sufficient to say that because the act itself is a law, that this fact saves it from the above provision, for it will be noted that the language of the law is "unless otherwise prescribed by the Constittttion and laws."
In rendering this opinion I am aware of the fact that there are some precedents to the contrary in Georgia, but I take it, while they have been exercised without the question being raised, they are rendered of but little valne as precedents. I am aware of the fact also, that the Supreme Court in the 114 Ga., page 871, held that, "The power to appoint public officers was not purely an executive function, but this power may be exercised by the General Assembly." But attention is called to the

22

fact that they were dealing with the offices of a municipality.

The distinction between that case and the point in question is

manifest.

That the act is violative of the spirit also of the Constitution

there can be no doubt. Next in importance to the office is the

officer thereof. Under our form of government a public office

is a public trust. Public officers are the trustees and servants

of the people and the right of such officers to hold office ought

to originate with the people, or fr,Jm a source unquestionably

delegated by the people. For these reasons I think that the

Legislature has transcended its authority when it undertakes by

legislative act to make a private citizen a public offirAr nf thi,..

character.

RespRctfully,

JNO. C. HART,

Attorney-General.

January 6, 1902.
His Excellency, Joseph 11[ Terrell, Governor:
Your communication of this date enclosing official bonds of the following persons to wit; Chas. A. Dugan, recently elected tax collector of Oeonee county; M. C. Griffith, receatly elected receiver of tax returns of Oconee conn ty; E. S. Stinchcomb, recently elected tax collector of Fayette county; and M. J. Charles, the recently elected tax collector of Hall county, with the request that I give an official opinion as to the validity of these bonds, just to hand.
The eriticism of the bonds of Dugan, tax collector, and Griffith, tax receiver of Oconee county, is that these bonds were not received here until after the 1st day of January, 1903. These bonds were made and approved by the Ordinary in ample time, but the delay is cl ne to the fact, as certified by the Ordinary, of his ab:oence from the county, which absence was caused by his sickness. The delay in forwarding these bonds, for this reason, in no sense impairs the contract of the sureties, nor does it work any forfeiture of the office.
Section 229 of the Political Code, in providing how offices

23
are vacated, and especially the sub-section G, viz.; "By failing to apply for and obtain commis~ions or certificates, or by failing to qualify or give bond both within the time prewribed by the laws and Constitution," and the amendatory Act of 1898, page 105, has been construed by our Court in the 44 Ga., page 501. The Court eays in the second headnote thereof that "the simple fact that an officer elected does not give his bond and take the oath of office within the time prescribed by law, is not sufficient to work a forfeiture of his right to the office; it must appear that the not giving the bond and taking the oath within the time, are by the tiwlt or failure of the officer."
The recital of facts as to the foregoing bonds clearly exonerates the Oconee officers from any def,wlt. I will suggest nothing, therefore, be done in this case, except an Executive order reciting the cause of the delay in transit.
The other bonds above referred to are criticised in that they were noL made and approved until after the 1st day of January, 1903. In each instance explanations are offered touching the delay. It is unnecessary to decide the question whether the failure to file and have the bonds approved not later than the 31st day of December, 1902, works, ipso facto, a forfeiture of the office. I think it is very likely that every case must depend upon its own peculiar facts and I think in view of the explanations offered in these several cases that your Excellency, with perfect propriety, could order these bonds now filed and approved. It occurs to me, however, in the bonds that have been filed and approved since the 1st of January, in order that they should be statutory bonds, that there should be a waiver prepared, which this office will undertake to do, and your Excellency should require a waiver of the time of filing by the principal and sureties. when this is done my opinion is these bonds mar be properly approved and filed.
Respectfully, JNO. C. HART, Attorney-General.

24

January 1, 1903.

His E:ccellency, Jowph M. Terrell, Govemor:

In reply to your request that I construe the following lan-

guage appearing in the Appropriation bill recently passed by

the Legislature, to wit:



"For printing Supreme Court Reports, new volumes, $7,000,

or so much thereof as may be necessary. For republishing

earlier Georgia Reports, when copyrights on same have ex-

pired, and for compiling and publishing, under the direction of

the Governor, the Colonial, Revolutionary and Confederate

records of Georgia such sum as may be necessary to pay the

contract price for such work, to be paid only out of the money

received into the Treasury during the years 1903 and 1\!04 from

the sale of such republished Georgia Reports, as provided for

by Act of December 16, 1899, and from the sale of such Colo-

nial Revolutionary and Confederate Reports so published."

I asoume the purpose of the requeot is to determine how, and

from what sources the expense of the publications above referred

to are to be met. The confusion grows out of a conflict be-

tween the words used in the Act under discussion and the Act

of December 16, 1899, which last Act the Legislature, by refer-

ence to, embodied as a part of the present Act. The Act re-

cently passed, and above referred to, restricts the payment of

the printing of the republished Supreme Court Reports,

and the Colonial, Revolutionary and Confederate Records, to

the sale of such republished Georgia Reports and Records,

and refers also to and uses the following language : '' as pro-

vided for by the Act of December 16, 1899." While, by the

Act of December 16, 18!:!9, the cost ot printing the Georgia

Reports, new volumes, and other reports, to wit: the republi-

cation of Georgia Reports, including the current reports as

the rep1tblished Georgia Reports, are to be paid for out of the

sale of all Georgia Reports. I think the word " republished,"

as used by the Legislature, in the Act we are discussing, was

intended by that body to be used in the sense of published; for,

if that were not true, the reference to the Act of December 16,

1899, was not only unnecessary, but absolutely injects into this

2.5
legislation conflicting provisiOns, and, in effect, owing to the financial status of the work, would render the legislative will nugatory,
It is evidently the purpose of the Legislature to carry on this entire work, but its scheme is to confine the payment of the expense necessary to do that to the funds arising from the sale of all the Georgia Reports, including as well the sale of such Colonial, Revolutionary and Confederate Records so published. In other words, it is a scheme of the Legislature to publish the Georgia Reports, as well as to republish the earlier Georgia Reports, where the copyrights on the same have expired, and the Colonial, Revolutionary and Confederate Records of Georgia, but making these combined publications pay all of the expenses incident thereto, and limiting the time to the years 1903 and 1904.
Respectfully, JNO. C. HART, Attorney-General.
June 10, 1903.
Hon. Wm. A. Wright, Comptroller-General, Atlanta, Ga.: DEAR Sm :-I beg to acknowledge your recent communica-
tion, enclosing a letter from Messrs. King, Spalding & Little, touching the returns of the American Casualty Co. The difference, as I understand, grows out of the construction of the last line of section 809, providing for the return of insurance companies to the Comptroller-General for purposes of taxation. The language in question is as follows: " and the losses paid and unpaid by agencies."
The purpose of the law in requiring such particularity as set forth in section 909 is apparent. The company is required to give the name of each agent acting for it, his postoffice address, the aggregate amount of risks underwritten in this State durjng the tax year, the amount of premiums received, and the losses paid and unpaid by agencies. The object of the law in requiring this particularity is to arrive at the revenue of the

26
company, in order that it may be taxed, as well as to ascertain the names and postoffices of the various persons who solicit insurance.
The word '' agencies" as used in that section, in my opinion means the " company." The State is not interested in knowing which particular agency has paid, or failed to pay, its losses. what the State is after is knowing what the company, as a company, has done with the view of assessing the tax provided by law. Since, therefore, as it would avail the State nothing to have a report from each person representing the company in soliciting insurance, and while to do so would entail upon the company great work, the construction above suggested may be given the word "agencies" without detriment to the State, and at the same time relieve the company of the work which a dif_ ferent construction would require.
The returns, therefore, are sufficient when the company gives to the Comptroller-General the name of each agent acting for it, his postoffice address, the aggregate amount of risks underwritten in the State during the tax year, the amount of premiums received, and the losses paid and unpaid in the aggregate.
Yours very truly, JNO. C. HART, Attorney-General.
June 10, 1903.
Hon. Wm. A. Wright, Comptroller-General, Atlanta, Ga.:
DEAR SIR :-I beg to acknowledge your communication of the 8th inst., with enclosure from .Mr. J. T. Dargan, President of the Atlanta-Birmingham Fire Insurance Company. The letter referred to is in terms an application by the Fire Insurance Company to do business in Georgia. The point raised grows out of the recital of fact that the company has $120,000.00 in " cash" paid in. The precise question raised is whether the '' cash" paid in is in itself sufficient, or whether it should be invested in bonds or stocks. The difficulty grows out of the con-

27
struction of section 3 of the Act of 1887 which section provides '' that no insurance company of whatever class except
shall be allowed to transact any business of insurance in this State unless possessed of at least $100,000.00 of actual cash capital paid up, or assets, and invested in bonds or stocks estimated at their actual market value, etc."
The Atlanta-Birmingham Fire Insurance Company recite that they have $120,000.00 of actual cash capital paid up, but that it is in money. The suggestion is that this money should be in vested in bonds or stocks in order to literally comply with section 3 ofthe Act of 1887, previously quoted. The purpose of the law which requires that no insurance company shall be allowed to do business in this State unless possessed of at least $100,000.00 of actual cash capital, is protection for the policy holder. This is the only object of the law. It would add no additional secm:ity to require that the cash shall be invested in bonds or stocks. The cash is as much security to the policy holder as would be any bond or stock of the same market value. I think, therefore, that the Legislature meant by that section to require the insurance company to either have the money, or stocks and bonds, of the value of $100,000.00; that the word "and" in the section quoted, should read "or."
"In the interpretation of statutes the intention of the General Assembly should be diligently looked for, keeping in view the remedy proposed. In arriving at the intention of the General Assembly the transposition of words and clauses may be resorted to, when the sentence or clause is without meaning as it stands.'' Applying this familiar rule of law to the Act in question, it is manifest that if the Legislature meant to say that no sort of investment would take the place of cash, they would have eliminated a large part of the section just quoted, and would have said that no company shall be allowed to transact any business of insurance in this State unless they had $100,000.00 invested in bonds or stocks. They would have said nothing about the cash capital paid up.
I am, therefore, of the opinion that if this company has paid up, cash in hand, over $100,000.00 in money, that it is a substantial, if not an absolute, compliance with the statute, and

28
upon this fact appearing, they would be entitled to transact the business of insurance in this State.
Yours very truly, JNO. C. HART, Attorney-General,
March 24, 1903.
Hon. Tfin. A. Wright, Comptroller-General, Atlanta, Ga.
Dear Sir :-I beg to acknowledge your communication of this day, in which you asked me whether an individual in Monroe county is liable as a dealer in cotton futures under the following statement of fact, to wit: " One - - - . has been taking orders for cotton futures in Monroe county. These orders are giyen him by persons wishing to buy or sell cotton contracts. They are then placed in either Macon or Atlanta in the name of the party making the purchases. The purchasers put up the money for this solicitor of orders. The profits, if any, are given to the purchasers. The party claims that be is acting for himself and makes no charges, though it is suspected that this last statement is untrue."
The question is, under the above statement of fact, whether such individual is engaged in the business of selling or buying cotton futures so as to make him liable to the tax of $1,000.00 provided for under the 18th section of the Tax Act of 1903.
Dealing in cotton fu,tures is recognized by our law and treated as an evil. That it is not regarded as a business to be encouraged by the State is evidenced by the high tax required to be paid by every individual or firm who see fit to engage in the business of selling, for future delivery, farm products, commonly called futures. If such .party charged his customers there could be no question as to his liability for the tax imposed liS a dealer in futures. Whether he charges or not is an unknown quantity, but in view of the fact its effect upon society is as blighting and injurious as if he did charge for such service. I believe he falls within the spirit, if not within the letters of the law placing this high license upon this business of questionable

29
'Character. I am not prepared to say that he does not fall within the letter of the law, for the 18th section, above referred to, as imposing the tax, makes no distinction between the man who deals in the business for profit, and the man who deals in it for fun. Assuming, therefore, the most favorable conclusion to him as a dealer in the business, to wit : that he is in it purely for amusement, I think that he is liable for, and should be made to pay, the tax as a dealer in the business.
Yours very truly, JNO. C. HART, Attorney-General.
March 26, 1903.
Hon. Wm. A. Wright, Comptroller-General, Atlanta, Ga.
Dear 8ir:-In reply to your favor this day submitted, viz:. whether an incorporated insurance agency could be issued a license to do insurance business, I beg to say that in my opinion you would not be authorized to issue a license to such a corporation to carry on the business of an " insurance agency." The question, as I understand, arises on the application of the Shulhafer Insurance Agency, a company incorporated in Chatham county, and by order of the Superior Court thereof. I am not prepared to say the Superior Court could not incorporate a concern to do an insurance agency business, but a study of our insurance laws will demonstrate the proposition that such an organization was never contemplated. Our insurance laws are framed with the purpose in view of requiring many things ' to be done by the agent who engaged in that business, that would be impossible for an incorporated agency to perform. The punishment for the failure on the part of individuals to comply with these requirements would be incapable of enforcement against a corporation. The tax imposed upon individuals who engage in this business is a source of large revenue to the State. If a corporation could be chartered to discharge this work, it would defeat these revenues. Neither the general law ;nor the tax act ever contemplated that a corporation rould en

30
gage in this business. The tax act fails to provide anywhere for a tax upon an agency of this character. If the Superior Court of Chatham county could incorporate an agency with power to do business in that county and throughout the State of Georgia as the articles of incorporation empower in this case, it would make it possible for this concern to monopolize this business and drive out of business the hundreds of individuals now engaged in it throughout the State. It would make it possible in the light of the present laws to accomplish that, and at the same time do so without paying anything for the privilege.
I do not feel it my duty to pass upon the constitutionality of this charter, but, you as the insurance commissioner, I would advise under the state of facts to decline to issue to this agency a license to do insurance business.
Yours very truly,
c. JNO. HART,
Attorney -General
February 26, 1903.
Hon. Wm. A. Wright, Comptroller General, Atlanta, Ga.
DEAR SIR :-I beg to acknowledge your communication of February 21st. I note the purpose of the inquiry therein is to solicit from me an official opinion whether the State of Georgia, bonds outstanding, and in the hands of the State's creditors, are subject to taxation
Let it be remembered that these bonds were issued since the adoption of the present Constitution, i. e., the Constitution ratified in December, 1877. The public debt for which they were incurred was created prior to 1877 and these bonds were issued to refund previous bonds; in fact the several Acts of the Legi.slatnre authorizing the issuance of these bonds provided for an exchange of the old bonds for the new ones. Georgia saved milli0ns of dollars by exchanging her new bonds or in selling her new bonds to liquidate the old ones, in the single item of interest charges. The old bonds bore a much larger rate of interest, owing to the State's financial condition at the time of

31
their issuance; while at the time of the issuance of her present bonds, owing to her greatly improved financial status, the rate of interest was greatly reduced.
These bonds were issued by authority of the Legislative Acts of 1884-5, page 118; Acts of 1886-7, page 97; Acts of 1889, page 152; Acts of 1890, first volume, page 34; Acts of1885, page 4. In authorizing the issuance and selling of these bonds, except those authorized by the Act of 1895, the following provision was incorporated in each of said Acts : "Be it further enacted, that all bonds, whether coupon or registered bonds, issued under the provisions of this Act, shall be exempt from all taxation by or under the authority of this State, or any municipal, county or authority whatsoever." It will be seen, therefore, that the Legislature in so far as it could do so, committed the State on the proposition that the bonds were never to be taxed. The Legislature advertised this exemption from taxation and sought for, and obtained, purchasers of the bonds on the promise that the same should be exempt from all taxa_ tion by or under the authority of this State, or any municipal, county, or authority whatsoever. It is fair to presume that purchasers gave fu1l faith and credit to this declaration and bought the bonds relying upon this representation. It cannot be denied, therefore, that the Legislature supposed the bonds to be exempt and so represented. This much, therefore, as committing the "legislative branch of the government" on the non-liability of State bonds for taxation.
Let us see what the judicial branch has done. In the 50 Ga., page 287, the Court ruled ''that it was a question of some doubt whether the State can tax its own bonds. At any rate it is a matter of serious question whether it is right to clo so. 'Vhether the State, however, can or not, tax its own obligations, its intention to do so, ought to be plain and manifest.' While this ruling was under the Constitution of 1888, yet the reasoning of the Court at that time is equally sound as applicable to the present Constitution, for by the Constitution of 1868 as by the Constitution of 1877, taxation was the rule and exemption the exception. In the case of Miller v. 'Vilson, taxreceiver, GO Ga. 506, construing the Tax Act of 1877, "em-

32
powering and authorizing the Governor, with the assistance of the Comptroller-General of the State to assist and levy a tax upon the taxable property of the State," the Court said " this language could not be legally construed to authorize a tax upon the bonds of the State." This decision was fter the adoption of the Constitution of 1877, but it arose just prior thereto, and was no doubt argued and decided in the light of the present Constitution. At any rate the Court decided that language so loose, vague and indefinite, could not be construed as authorizing the levy of taxes upon the bonds of the State.
The present Tax Act, as well as every Act, so far as I have been able to discover subsequent to the Act of 1877, employs substantially the same words, certainly none more explicit. Nor is the language under consideration in the Constitution any more explicit, The Courts have construed substantially that language as :::tot carrying any such power, and no reason occurs to me why a different interpretation is to be placed upon practically the same language occurring in the Constitution than in legislative enactments. In the 67 Ga., page 492, wherein the city of Macon was tryivg to collect tuxes on its bonds, claiming to exercise that right under its charter provision, which allowed it "to tax all property, real or personal, within the corporate limits of the city," the Court said, "No such power could pass. The authority to do such a thing must be explicit to authorize the city to do in respect to State bonds what the State ought not to do." "If the State thought it wrong to tax debts she owed, would she authorize another to tax the debts it owed?" It will be seen, therefore, that wherever the "judicial department" of the government that dealt with the question of the taxability of the State bonds, its opinion is very clear; the same are not taxable.
Let us see how the_ executive branch of the government has treated the question ; for the construction placed upon the constitutional provision, by this branch of the government, is important. So far as I know, this department of the government has never sought to tax the State's bonds. In an opinion .delivered by my distinguished predecessor, Hon. Boykin wright, on June 27, 1902, he expressed the view that a strict

33
construction of the Constitution taxed the State's bonds. He said, however, in arriving at this conclusion, that the opinion reached was not entirely free from difficulty. He unhesitatingly said he thought the policy a bad one for the State to adopt. Evidently had he been making tqe Constitution he would have opposed the policy of taxing the State's bonds, but was constrained to hold, because of the fact that State bonds were not expressly authorized to be exempt, that the same were liable to be taxed. This is most respectable authority, for he is a lawyer of profound learning and great ability. It is, however, authority standing solitary and alone, and in conflict with the various departments of this government as well as with its practice in the administration of the tax laws; for it will be seen from every legislative enactment, from judicial decisions, and the practice of the executive branch of the government, for the last quarter of a century, that these officers, high in authority, never thought for a moment that the provisions in the Constitution of 1877, on the subject of taxation, evflr contemplated that the State intended to tax her own obligations.
Neither the legislative, judicial nor executive branches of the government ever considered the language embraced in section 2, paragraph 1 of the Constitution that " All taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed," and under the second paragraph of the same section that "The General Assembly may, by laws exempt from taxation all public property, places of religious worship or burial," etc., as referring to the State's obligations. It would be a strained construction to hold that the people in convention meant, when they said "all property," to include their own obligations. It is inconceivable that the sovereign would have thus done an act that would cripple its own existence and done it in a way so vague and loose. Surely a matter so important was deserving of language unmistakable in meaning and explicit in enactment. The sovereign should not be held to have committed itself to so grave a policy unless it had used words that fotced the conclusion it intended to adopt such a policy. The people in convention, when the above language was used, were dealing, in the first section above quoted, with

34
the property of the people, and never meant to include in the phrase " all property" her own obligations ; for it provides in the second section for exemption from taxation, her public property, thus showing conclusively it was her policy to protect her public property from the burden of taxation. Her public credit, which is represented by her bonds, is the heart and life of the State. The power to issue bonds, like the power to tax, is a large part of the sovereignty of the State. These two instrumentalities combined keep it a "going concern." They comtitute, as it were, the franchises under which the State does business. That franchise, when administered with untarnished good faith, i>~ the State's best asset. It is her hope of rescue in time of trouble and should be her pride and glory in time of peace. To tax this resource could have but one result-crip pling and degrading her credit. This the State should forbear to do, or permit to be done. To tax this resource would in effect be taxing public property, not in pursuance of, but in spite of, the Constitution. What would it profit the State to tax its own obligations? In its last analysis it is but taxing the public for the public. As a business proposition the result would be, the State would be the loser by paying the cost of collection. The government would simply be in the position of raising money for the public, from the public, and paying for the privilege of doing so.
Again, for the State to promise to pay a hundred dollars for a loan of a hundred dollars and three and one-half per cent. for the use of the money, cannot be fairly said to have complied with the contract when, instead of paying the money as promised, she pays a part of it in a tax receipt. This would be an impairment of the obligation of her contract. This the Constitution forbids in Art. 1, Sec. 3, Par. 2.
If bonds are to be taxed, they, of course, would sell for less, and the people in the end would be the losers. It would, therefore, be worse than idle, it would be expensive for the State to adopt such a policy.
The conclusion, the refore, to my mind, is irresistible; for the State to undertake to collect taxes on its bonds would not only eontravene the spirit, if not the plain language of the Constitu-

35

tion, but such an effort would be obnoxious to a sound policy,

and in the light of the peculiar circumstances under which

Georgia issued her present obligations, would barely escape

being justly classed a moral wrong.

The State sold her bonds under promises made by the various

Legislatures, and repeated time and time again that if a citizen

would lend her money, she would exempt her bonds to repay,

from the burden of taxation, and on this promise the creditor

parted with his money and the State accepted it. In my judg-

ment, therefore, the State could not, under these conditions,

rightfully, nor legally, violate that promise and ought not if it

could.

Respectfully,
JNO. c. HART,

Attorney-General.

December 18, 1902.
Hon. TVm. A. Wright, Comptroller-General; Atlanta, Ga.
DEAR SIR :-In reply to your inquiry of December 16th, whether, under the Acts of 1899, page 99, an indigent Confederate soldier, not on the indigent pension roll of the State, would be entitled to practice medicine in this State without being subject to any tax therefor, I beg to my, in my opinion the Act requires that the indigent person desiring to practice medicine must be on the pension roll of this State before he would be allowed to practice his profession without being subject to any tax therefor.
Yours very truly, JNO. C. HART, Attorney-General.

March 31, 1903.
Hon. Phillip Cook, Secretary of State, Atlanta, Ga.
DEAR SIR :-In reply to your communication of even date, whether an election held for Justice of the Peace in Forsyth county, on Friday, the 27th inst., is a legal election,

36
I beg to say there are only two sections of the Code, sofar as I am informed, relating to the time when Justices of the Peace shall be elected. The first is Section 101 of Volume 1 of the Political Code, which provides that theJustices of the Peace shall be elected on the first Saturday in January, 1873, and every fourth year thereafter, etc. The other section referred to is 337, Volume 1, which provides for the laying out of a new district and the election of a Justice of the Peace, "After advertising the samefor thirty days in three of the most public places of thenew district." I am of the opinion that these two sections are harmonious, differing merely in their application. The first section providing for the election of Justices of the Peace, on the first Saturday in 1873 and every four years thereafter, relates to established districts. Thesecond section providing for election after thirty days' notice, relates to the election of Justices in the new district. The election in the case submitted by you, was for a Justice in a new district, and if the thirty days' notice was given as required by law, the fact that the day fell on another than Saturday, .would not for that reason make it illegal. In order, however, to preserve the harmony of the law, I believe that the commission should be dated so as to make the term of office expire, so that upon the election of his successor it may be fixed to fall on the first Saturday in December, 1904. This last suggestion is made in view of an ammendment. to section 101, Acts 1898, page 42.
Yours very truly, JNO. C. HART, Attorney-General.
May 7, 1903. Han. R. E. Park, State Treasurer, Atlanta, Ga.
DEAR SIR :-In reply to your inquiry whether money appropriated for school purposes and not called for within six months after the expiration of the fiscal year for which

37
it was appropriated, reverts to the general fund in the Treasury, I beg to say, in my opinion, it does.
The appropriation for the maintenance and support of the public schools of the State is made annually. This is likewise true of appropriations for the support and maintenance of each branch of the goven ment. The law contemplates that these appropriations shall be used the year for which they are appropriated. Defining the duties of the Treasurer in Section 199, paragraph 15, Volume 1, of the Code of 1895, the following appears, " He (the Treasurer) shall not pay any appropriation due and not called for within six months after the expiration of the seal year for which it is appropriated, but reverts to the general fund in the Treasury.'' No reason occurs to me why the rule of law touching lapsed appropriations should not apply in this case, but the policy and the wisdom of the law, that it should apply, is apparent. I do not mean to say that the appropriation thus lapsed is lost to the person or thing to which it was appropriated, but before you, as Treasurer, would be authorized, under such state of facts, to pay a lapsed appropriation, the Legislature must empower you to do so.
Yours very truly, JNO. C. HART, Attorney-General.
April 7, 1903.
Hon. R. E. Park, State Treasurer, Atlanta, Ga.
DEAR SIR : - I am in receipt of your request that I construe section 5 of the Appropriations Bill, by the last Legislature. The section reads as follows :
"Be it further enacted by the authority aforesaid, That the following sums of money be and are hereby appropriated to pay the recognized valid debt of the State, as fol lows: One Hundred Thousand Dollars on Bonds maturing January 1, 1903, and One Hundred Thousand Dollars

38
on Bonds maturing January 1, 1904, to be paid out of the sinking fund.
'To pay the interest maturing in the year 1903, the sum of Three Hundred and Twenty-one Thousand, Three Hundred and Eighty Dollars for each of the fiscal years 1903 and 1904.
"To pay the interest maturing in 1904 the sum of Three Hundred and Sixteen Thousand, Eight Hundred and Eighty Dollars, and the State Treasurer is hereby authorized and required to apply the fund in the Treasury which has arisen from the sale of public property, and known ae the Public Property Fund, to pay the interest on the Public Debt when the ~arne matures in accordance with the appropriations set forth in this paragraph."
The confusion in the above section arises from two sources. It will be noted that the Legislature appropriates by that section $321,380.00 for the year 1904 and again in another part of said section the sum of $316,880.00 for the same year, as maturing interest on the public debt. The total of this sum is $638,260.00, appropriated to pay the interest on the public debt maturing in 1904, while no such sum is necessary; $316,8.SO.OO is all that is necessary to pay the maturing interest on the public debt, and it is fair to assume that that was all that the Legislature intended to appropriate. Why this additional appropriation was made will be considered in discussing the other element of confusion growing out of this section.
It will be noted by a strict construction of the section and paragraph, above set forth, that the Legislature has placed itself in the attitude of appropriating and pledging the Public Property Fund to the payment of the interest on the public debt falling due in the year 1904, and so far as the interest on the public debt falling due in 1903 is concerned, the appropriation is without the pledge. The question arises, why does the Legislature apply the Public Property Fund now in the Treasury to the payment of interest in 1\:104 on the public debt and fails to make any such pledge of the Public Property Fund to the payment of mterest on the public debt in 1903?

I understand a construction of this section involves materially the financial status of the Treasury, for the "Public Property Fund" in the Treasury is not sufficient to pay the interest for both years 1903 and 1904. If the section is to be construed as appropriating the Public Property Fund to the interest falling due in 1904, and that the interest falling due in 1903 is to be paid out of the Treasury generally, it will necessitate the borrowing of money on the part of the State and paying the interest thereon, when in point of fact, if the section is to be construed as appropriating the Public Property Fund, as far as it went, to the payment of interest for both of the years 1903 and 1904, the State would not have to borrow money. If, therefore, the language of the section does not require the former construction, the latter contraction is the one to adopt as the proper construction, considering the welfare of the State. I do not under. stand that the interest falling due in 1904, on the public debt maturing is any more sacred than the payment of the interest falling due on the same debt in 1903. No reason appears, and none can be suggested from any point of view, why the State should regard with any greater solemnity the interest falling due one year, than the other. I think the proper construction of the section is that the Legislature meant to pledge that fund, to wit: the Public Property Fund, to the payment of the interest falling due both years, and to be paid as the debt matures.
The argument in support of a different construction or this section is found in the last five words, to wit: "Ret forth in this paragraph." The physical appearance of the section as embodied in the Act divides the section into two paragraphs. In this, the printed section differs from the origi nal Act passed by the Legislature. I have looked at the original Act and there the entire appropriation is treated as one paragraph, while in the Act as printed by the public printer, he treats it as two paragraphs. The Act as passed by the Legislature, I understand to be the Act and the true law of the case. I do not understand that the public printer, by punctuation or by paragraphing, can make or change a law. It is evident from an inspection of the orL

40

:ginal Act now of file in the Secretary of State's office, that

the House of Representatives originally passed the Appro-

priations Act as relating to the year 1903, and when it

reached the Senate the Act was amended by adding similar

.appropriations for the year 1904, making the Appropriations

Bill carry the two years, to wit: 1903 and 1904.

I have no hesitation, therefore, in holding, in the light of

the history of this Act, and after a personal inspection of

the original Act, thai the Legislature intended to appro-

priate the Public Property Fund to the payment of the in-

terest falling due in both years 1903 and 1904, and in ac-

ccordingly advising you that by the terms of said Act you

are authorized and required to apply the Public Property

Fund first, to the interest falling due in 1903, and what is

left to the interest falling due in 1904.

Respectfully,

.

JNO. C. HART, .

Attorney-General.