The fourth annual report of John C. Hart, Attorney-General of Georgia, with an appendix containing opinions from January 1st, 1905, to December 31st, 1905

THE FOURTH ANNUAL REPORT
OF
JOHN C. HART
ATTORNEY- GENERAL OF GEORGIA
WITH AN APPENDIX CONTAINING OPINIONS FROM
JANUARY IST, 1905, TO DECEMBER 31ST, 1905.
ATLANTA, GA.
The Franklin Printing and Publishing Company Geo. W. Harrison, Manager 1906

REPORT.
OFFICE OF THE ATTORNEY-GENERAL, ATLANTA, GA., December 31, I905
To His Excellency Joseph J1. Terrell, G-overnor.
SIR: Pursuant to the provisions of law, I have the hmor to submit hermvith the following pages, covering in part the work of this office from January rst, 1905, to J)ecember 31st, 1905, each inclusive. I also append a number of official opinions, which were reduced to writing, rendered the heads of the nrious departments of the State, and considered of sufficient importance for
pu~)lic:1tion.
The General Assembly, by resolution approved .'\ugust 15th, 1905, directed that a commission be appointed, con~.isting of the Commissioner of Agriculture, State Chemist, State Geologist, Will H. Shippen and Judge ]. R. Chastain, \vho were authorized and directed to investib"ate the present conditions relati\e to the destruction of the fruit trees, agricultural and timber interests of certain counties in this State, by the smoke, sulphur fumes Clncl noxious vapors ancl gases gl -::rated by the Ducktown Copper Companies, in the n '1llfacture of copper in the Ducktown district in Tennessee. It was further provided that if upon the report of this commission to the Governor he deemed it achisable to institute pro~ ceedings to abate this nuisance, that the Attorney-General should be instructed to take such legal steps as might be necessary to accomplish the same, if one be found to exist.

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This comm1sswn organized soon after the adjourn~ hlent of the Legislature and made personal inspection of the counties contiguous to the Duckt~own district and reported that great damage was being done to the agricultural interests, and the vegetation in these counties, and recommended that suit be instituted to abate the nuisance. In conformity with this resolution of the General Assembly and the report of the commission, and under the direction of your excellency, I associated with me Ligon Johnson, Esquire, of the Atlanta bar, and did at the October Term, 1905, of the Supreme Court of the United States, file an original suit in that court against the Tennessee Copper Company and the Ducktown Sulphur, Copper & Iron Company (Limited). This suit is filed in the name of the State of Georgia by its Attorney-General, John C. Hart, Plaintiff, vs. The Tennessee Copper Company and The Ducktown Sulphur, Copper & Iron Company (Limited), Defendants.
This petition embodied a prayer for injunction commanding the said defendants, and each of them, and all persons acting under their authority, to absolutely desist aq.d refrain from using, maintaining, or in any manner operating, any furnace or oven or other appliance or copper-reducing method, causing, generating, giving off, Ole discharging any foul smoke or poisonous, noxious, unwholesome gas, or vapor, upon the territory or lands of the State of Georgia and its citizens, or injuring the property of the State or its citizens; and that upon the hearing of the petition the said injunction should be made perpetual. The court granted leave to file this suit and the same is now pending in the Supreme Court to be called up after thirty days' notice in writing to counsel on the other side. The Copper Companies have filed demurrers to this petition, setting up various reasons why the State should not be allowed to litigate, and

b

especially urging that under the facts of the bill the relief

asked for should not be grantee!. The jurisdiction of

the Federal Court is innJked in this case by virtue of

.Article 3, Section 2, Paragraph I of the Constitution

of the United States, for the reason that this is a con-

troversy bet\veen one of the scwereign States ancl citizens

of another State.

]a,,. I have little apprehension concerning the

of the

case and what the facts may show can only be determined

upon the trial. Among other insistencies of the Copper

Companies is that they have erected a stack of the height

of three hundred and twenty-fi,e feet, \Yhich is to conduct

this smoke, and it is claimed, \vill discharge it at such

an altitude that the atmosphere will so dilute the poison-

ous substances contained therein as to rencler it harmless

when it falls to the earth. It is not the opinion of the

experts of our commission that this stack \Yill completely

remedy the evil, though some believe that it \Vill greatly

mitigate it, others contending that the effect of such a

stack will be only to extend the zone of injury. Just

how this will be I have no means of knowing and I take

it no one else knows definitely, nor can know, except

after a practical test. The State is not willing to leave

its case on this uncertainty, especially when scientists

generally agree that it is possible and practicable to install

sulphuric acid plants to convert these poisonous gases into

sulphuric acid, though to do so will involve a large outlay

of money. The State has no desire to shut clmn1 these

costly works and thus deprive thousands of people of

employment, but the State does insist, and belie,es that

it may with propriety do so, that the companies so

conduct their operations as not to injure the property

interests of this State and the citizens thereof. There-

fore I shall insist that the State is entitled to the injunc-

tion because of the uncertainty that the high stack will

remedy the injctry, and the Copper Companies have no just cause to complain, for if the high stack will relieve the damage, the injunction is not harmful to them, and if it does not, the State is entitled to the injunction.
I have progressed far enough in the case to satisfy me that the proceeding is to be expensive, in that thousands of affidavits are being prepared to be used in this hearing, and while I shall not count the cost necessary to fairly and fully present the State's case, yet I desire to remind your excellency that the Legislature has made no appropriation for defraying these expenses and this feature of the case confronts me with more or less embarrassment. I therefme suggest that you call this omission to the attention of the Legislature that it may make appropriate provision for the conduct of this litigation.
PALMER HARDWARE COMPANY ET AL. vs. RAILROAD COMMISSION OF GEORGIA
ET AL.
The plaintiffs in this case are merchants residing in Savannah, Georgia. On the . . . . day of ......... . 1905, they filed their petition in Chatham Superior Court against the Railroad Commission of Georgia to restrain the enforcement of Circular No. 305 issued by the Railroad Commission as a just and reasonable tariff on the things therein named and bet\veen the points therein stated. The railroads coming into the City of Savannah were also made parties defendant. This circular was attacked by the plaintiffs upon senral grounds, but mainly for the reason that it \Vas rl;'icriminatory. In response to the rule nisi granted by Judf"e Cann, the Commission set up that neither of the -commissioners were citizens or residents of Chatham County and that the cause of action, if any, \vas predicated upon the official

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acts of the Commission performed at the Capitol, in the City of Atlanta, Fulton County, Georgia, where the office of the Commission is located by law, and where alone it can exercise its official function. \Vherefore it was insisted by these defendants that the Superior Court of Chatham County was without jurisdiction over their person, either in their individual or official capacity, and that, not the cou1"t of Cha:tham, but the Superior Court .of Fulton County, had jurisdiction to entertain the controversy against them, in their representative capacity as constituting said Railroad Commission. Secondly, be~ cause the defendants named in the equitable petition were not necessary parties defendant and when aligned according to interest they would properly be parties plaintiff. \Vherefore it vvas urged that Chatham Superior Court was without jurisdiction over either the contror versy, or the persons of the Railroad Commission, for, that there vv'as no necessary party defendant against whom substantial relief was prayed over whose persorn the court had jurisdictiorn. Third. That the State, in the exercise of its police power, having delegated to the Commission plenary authority to establish just ancl reasonable rates for the carriage of persons and freight within the State, the question of determining vvhat were just and reasonable rates was committed exclusively to the Commission and the exercise of its discretion in this regard within constitutional limitations, was not the subject of judicial review. The railroads, the co-defendants of the Commission, filed their separate answers in the nature of cross-bills and prayed for affirmative relief, and for a perpetlllal injunction against the enforcement of the circular. T'he case was argued and the Judge reserved his decision and on the r6th clay of August, 1905, entered up a judgment temporarily enjoining the enforcement of the circular by the Commission, and the railroads

8
from putting the same into effect. The case was duly appealed by the State and was heard on appeal before the Supreme Com;t, and after cons'ideration thereof by the Court Judge Cann was reversed upon the jurisdictional question raised. The decision is a valuable one for, if it be the law that the R~ailroad Commission is liable to suit at other than its domicile, and at the instance of any one who felt himself aggrieved, its usefulness would be greatly impaired, if not destroyed.
In this litigation I was most ably assisted by Hon. \Vm. A. \Vimbish, who represented the Atlanba Freight Bureau, and for whose services I make grateful ackno\Yledgment.
lipon the reversal of Judge Cann of the Superior Court of Chatham County, by the Supreme Court, the railroads immediately brought another suit, at this time in the Federal Court in the Northern District of Georgia. Judge Newman granted a restraining order and that case is now pending.
On the 19th clay of July, 1905, the Railroad Commission issued another circular dealing with the commodities embraced in the Circular 305 above referred to, changing in some slight particular the tariff on the articles mentioned, and between the points therein named, which circuJtar the milroads disregarded and refused and failed to put into effect. I instituted penalty suits in behalf nf the State for the recovery of the penalty fixed by law against the following railroads, to wit: Southern Railway Company, Georgia Railroad & Banking Company, Atlanta & \Vest Point Railmad Company, Central of Georgia Rail\vay Company and the Seaboard Air Line Railway Company. It is the insistence of the railroads that the injunction relative to Circular 305, which had been granted by Judge Cann, was sufficiently broad to comprehend the circular last named. It is the insistence of the State on

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the other hand, that the circular is not embraced within the terms of Judge Oann's order. These suits are now pending in Fulton Superior Court and held in abeyance because of the order of Judge Newman of the United States Circuit Court, enjoining the enforcement of Circular 305.
WESTMORELAND ET AL. vs. WOODWARD
ET AL.
This was a controversy bet\Yeen the State Board of Health and the Board of Health of the City of Atlanta. It was the outgrowth of a conflict of authority claimed by the respective Boards. A petition was filed in the name of \Vestmoreland ct al. constituting the State Board of Health against \Voodward ct al. of the local Board of Health, to enjoin the defendants from interference wi'th the rules and regulations ordered by the State Board of Health, relative to the quarantine it inaugurated because of the existence of yellow fever outside the State and to prevent its importation into this State by persons from such infected territory coming into this State. Judge Pendleton of the Superior Court of Fulton county granted the injunction. The case was ap. pealed by the local Board of Health to the Supreme Court and that court, on 'the point raised that the sui't could not be instituted by the State Board of Health, was dismissed. The real point invoh,ed, 'that the Act creating the State Board of Health did not give it power to sue ancl that the suit should have been brought in the name of the State. The cow-t clicl not pass at all upon the merits of the controversy and the only question settled was that suits could not be instituted by the Board as such, but must proceed in the name of the State or in the name of the Attorney ,General.

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THE GEORGIA RAILROAD & BA.KKING COM-
PANY vs. WM. A. WRIGHT, COl\IP-
TROLLER-GENERAL.
This case, together with the companion case, viz. : that of the Central of Georgia Railway Company vs. \Vm. A. \Vright, has been referred to in former reports from this office am! its history need not be repeated. Suffice it to say, that the question involved is the bability to taxation in this State of thirty thousand shai'es of stock in the \Vestern Railway of A),abanl'a, an Alabama corporation, held and mvned by the Georgia and Central Railway Companies, in the ratio of fifteen thous-and shares each.
The ques,tion of the taxability of shares of stock under the laws of Georgia has been argued in bo1th the Georgia State Supreme 'court and in the United States Supreme Court, each court holding that shares of stock are property under our law and the subject of taxation. That question, I may therefore say, is positively settled. At the time of the filing of my last report the cause wns then pending before J uclge Pendleton of Fu),ton Superior Court, wherein the railroad companies claimed that the fi. fas. should be enjoined under grounds therein stated. The ground of objection, or rather the principal ground ur.ged by the railroad compGnies, was that the ComptrollerGeneral acted without authority of law in issuing the executions and the statute under which he acted, and relied upon by him as authority, was viola,tive of the Federal Constitution in that no provision \vas _made in the Act for notice to the tax-payer, and because of this defect, it amorunted to the ~taking of property \vithont due process of law contrary to the Federal Constitution. Judge Pendleton refused the injunction sought by the railrmd companies and the case was carried by appeal

11
to the Supreme Court of Georgia and that Court affirmed the judgment of Judge Pendleton with direction.
The case is now in preparation to be carried by the railroad companies on writ of error to the Supreme Court of the United States. It is my purpose to move to advance these cases for the reason that they involve a large amount of money, being part of the revenue of the State. The amount involved due the State by the two roads is approximately $25o,ooo, and the amount due the cities and counties of the State through \Vhich the roads run is largely in excess of that sum.
I have been assisted in this litigation and as associate counsel, in the case of the Georgia Railroad & Banking
Company, by Hon. Boykin vVright and by Hon. Hoke
Smith, the la:tter representing the county of Richmond. In the case of the Central o.f Georgia Railway Company I have been assisted by Hon. J as. D. Kilpatrick. To each of these gentlemen I make grateful acknmvledgment for the services rendered.
KEHRER vs. STEWART.
This was an action by Kehrer vs. the Tax-Collector of the County of Fulton to recover back a tax of $200 with interest and costs paid to Stewart under protest, such tax having been assessed against Kehrer under the General Tax Law of the State of December 2r, 1900, which provided that there shouldbe assessed and collected "upon all agents of packing..Jhouses doing business in this Sta,te $200 in each county where said business is carried on." This was a test case wherein was involved the sum of $30,000 which had been paid in under protest.
Kehrer charged that this law \V'as in violation of the Fourteenth Amendment of the Constitution of the United States, and insisted that the tax denied

12
him due process o law as well as the equal protection of the law, and was also in conflict 1vith the commerce clause of the Constitution of the Vnited States. Stewart demurred to the petition. The court sustained the demurrer and upon appeal the Supreme Court of Georgia affirmed its action. \\'hereupon Kehrer sued out his 1nit of error before the Supreme Court of the United States ancl the case was there argued by me January 24 and 25, r905. On February 27, IC)Oj, the Court affinnecl the judgment of .the Supreme Court of Georgia.
This case \Yas important to the State not only on account of the actual money inYohed ami dependent upon the decision, but it is also important in establishing and making plain the la1y relati1e to the taxation of occupations by the State. It is reported in the r97 U. S., pages Go to ;o.
SCHOOL L-\~DS.
In addition to the c<;llections heretofore reported relati,e to the sehoul lands, \\ hich I \YaS directed to recont under the _\ ct approHd _\ ugust 17, r903, I beg leme to report the follo\\ ing:
Fmm the lease of the timber interest in lot ro and part cf lot 100 in the Sixth District of Coffee county, :\lay 9, I90j, to ]. S. Betts Co. $.z.ooo, less attorney's fees to special counsel. :\Iessrs. Haygood, Cheney and Cutt3, $.=;oo, lca1ing balance to the State of $r.soo.
From sale of lot ro, Sixth District of Coffee county, :\lay 9, I90j, to ]. S. Betts Co. $3,orj, less attorneys' f~es, $903.88, leaying balance to the State of $2,rrr.r2.
_-\mount receincl frcm the cases arbitrated:

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Arthur Lott, Jr ........................... $400 oo Artemesia Minix . . . . . . . . . . . . . . . . . . . . . . . . . roo oo
J. M. Ashley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . roo oo
Allen Arbuthnott . . . . . . . . . . . . . . . . . . . . . . . . . roo oo
n. s. Batten . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I so 00
Total ................................ $Sso oo Less attorneys' fees and court costs. . . . . . . . . . . 299 38
Balance .............................. $sso 62
A summary of the reports will show that I have collected from this source $r2,64r in gross and after paying arbitration fees, court costs and other expenses incident to the litigation I have turned over to the State Treasurer $8,68o and have his receipt therefor.
CAPITAL CASES.
During the year I have, in obedience to the Constitutional requirement, represented the State in the following capital cases:
Bob Sutherland vs. The State. Floyd county. Death. Affirmed.
Courtney Baker vs. The State. Floyd county. Death. Affirm eel.
Jimpsey Griner us. The State. Tattnall county. Life imprisonment. Eeversecl.
Dudley Fitzpatrick vs. The State. Madison county. .Rape. Ten years. Affirmed.
Jehu Smith vs. The State. Irwin county. Life imprisonment. Eeversed.
Walker .c\nclerson us. The State. Muscogee county. Life imprisonment. Affirmed.
Dock Green ~s. The State. Sumter county. Life imprisonment. Affirmed.

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K oah Anderson vs. The State. Decatur county. Death. Affirmed.
Albert Yorung vs. The State. Baldwin county. Life imprisonment. Reversed.
Tom Davis vs. The State. Heard county. Life imprisonment. Affirmed.
Greely Phillips vs. The S'tate. Coweta county. Habeas corpus. Affirmed.
Ella Fletcher vs. The Stabe. Floyd county. Death. Affirmed.
Neal Williams vs. The State. Richmond county. Life imprisonment. Affirmed.
]. B. Roberts vs. The State. \Valker county. Life imprisonment. Affirmed.
Geems Pa,rk vs. The State. Greene county. Life imprisonment. Reversed.
Nathan Brm\'n vs. The State. Coweta county. Life imprisonment. Affirmed.
F. M. Allams 7/S. The State. Coweta county. Death. Affirmed.
Nancy Campbell vs. The State. Berrien county. Life imprisonment. Reversed.
Stephen Renfrow vs. The State. Fayette county. Life imprisonment. Affirmed.
Jack Clements vs. The State. Henry county. Life imprisonment. Affirmed.
Dan Whipple vs. The State. Pulaski county. Life imprisonment. Affirmed.
John Turner 'lJS. The State. Hart county. Life imprisonment. Affirmed.
Mac Patterson vs. The State. Heard county. Life irnprisonment. Affirmed.
Clem Green vs. The State. Polk county. Life imprisonment. Reversed.

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Burrell Patterson <:s. The State. Heard county. Death.
Affirmed. Will Perkins vs. The State: Taylor county. Life im-
prisonment. Reversed.
J. G. Ra.wiings vs. The Sba:te. Lowndes county. Death.
Affim1ed. Mil,ton Rawlings 'US The Sta:te. Lowndes county.
Death. Affirmed. Jesse Rawlings vs. The State. Lmvndes co1111ty. Death.
Affirmed. Leonard Rawlings <:s. The State. Lowndes county.
Life impris0111ment. Affirmed. Alf Moore 'US. The State. LmYncles county. Death.
Affirmed. Frank Turner 'US. The State. Lmn1des county. Life
imprisonment. Reversed. Fred Smith vs. The State. \\'ashington county. Life
imprisonment. Affirmed. Ralph Milner vs. The State. Spalding county. Death.
Affirmed. Nancy Campbell vs. The State. Berrien county. Life
imprisonment. Affirmed. Hus Grant vs. The State. ~Iorgan county. Death.
Affirmed. A. G. Tolbirt 'Z/S. The State. Haralson county. Life
imprisonment. Affirmed.
L. M. Hall <:'S. The State. Cm,eta county. Life im-
prisonment. Affirmed. Lem Greer vs. The State. Spalding county. Death.
Affirmed. Gene Garland 'vs. The State. Jasper county. Life
imprisonment. ReYersed. Ben Battise vs. The State. Chatham countY. Life
imprisonment. Affirmed.

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In concluding this report, I beg to make public acknowledgment of the very able service rendered me by my stenographer, Lewis R. vVaddey.

Respectfully submitted,

} OHN C. HART, Attorney-General.

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OPINIONS.
August 21, 1!)05.
Governor Jos. ~!. Terrell, Atlanta, Ga. DEAR Sm: The Legislature on August 15, 1903, passed an
Act prescribing the qualification of jurors in the Superior Courts, County Courts and City Courts of the State of Georgia and regulating the drawing of jurors in these courts. The Legislature proposes now to amend the law by excepting the counties of Mcintosh and Bryan from its operation. The proposition therefore involved is whether this general law may be amended by providing that it shall not apply to Bryan and Mcintosh counties. The object sought by the amendment is to exempt the named counties from the operation of the general law. Had this been attempted by introducing and passing a bill to exempt these counties from the operation of the general law, it must be conceded such legislation would have been unconstitutional as violative of article 1, section 4, paragraph 1 of the Constitution, Code section 5732: "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."
The bill seeks to evade what would be a palpable violation of the law, by proposing to amend the general law so as to accomplish indirectly what confessedly could not be done directly. The effect of the proposed legislation is to convert a general law into a mere local one by excepting from the operation of the law two named counties. It was doubtless within the scope of legislative authority to have excepted these counties in the original Act and at the time it was passed, and thereafter to have excepted any other counties desired, for with the exception of any one or more counties originally, the Act would not have been general but local. Reference is made to the county court Act and the judicial interpretation and construction thereof. But where an Act

18
is originally general in its nature, such as the Act sought to be amended in this case prescribing the qualification of jurors, the Legislature can not afterwards amend this general law by excepting from its operation certain named counties. This would be nothing more nor less than repealing the provisions of a general, by a mere local law and this the Legislature is inhibited from doing by the Constitutional provision above quoted.
The bill in my opinion is unconstitutional and therefore calls for executive veto.
Yours very truly, .TNO. C. HART, Attorney-General.
April 19, 1905. Governor Jos. lfl. Terrell, Atlanta, Ga.
DEAR Sm: In reply to your inquiry this day submitted, viz.: when a convict, committed to the State Sanitarium under the Act approved August 17, 1903, has been restored to sanity, what proceeding is necessary to his removal therefrom and subjecting him to the sentence of the court?
The Act of 1903 dealt with convicts convicted of capital offenses and as to them abolished the law providing for inquisition or trial of the insanity of such convicts where such convicts became insane after the infliction of the death penalty, and substituted therefor the appointment of a board of physicians by the Go,ernor within his discretion, to inquire into the sanity of the convict, and empowering the Governor to commit him to the State Sanitarium until his sanity shall have been restored "as determined by laws now in force." The laws now in force may be found in section 1049 of volume 3 of the Penal Code, where it is provided upon the restoration of such convict to sanity "the fact shall be at once certified by the superintendent to the judge of the court in which the conviction occurred. vYhenever it shall appear to the judge by said certificate, or by inquisition or otherwise, that the convict has recovered and is of sonnd mind, he shall have the convict removed to the jail of the county in which the conviction occurred, or to some other safe jail and shall
pass sentence * * * * * directing the sheriff to do

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execution of the sentence at such time :md place as may be
named in the warrant * * * * * * "
It seems clear therefore the only thing to be done is for the superintendent to certify the fact of the restoration of the sanity of such convict to the judge of the court wherein he was convicted and upon receipt of this certificate it is the duty of the judge of said court to resentence such convict.
Yours very truly, JNO. C. HART, Attorney-General.
December 20, 1905.
Governor Jos. M. Terrell, Atlanta, (}a.
DEAR SIR: I beg- leave to reply to your request of recent date for an official opinion on the question, "whether the grand jury of Crisp county may by recommendation establish a county court for that county?"
It is provided by section 41 70 of the Code, "Upon the recommendation by the majoritv of the g-rand jury of any county in this State (except "\Valton) a county court rna~' be established for such county." At the time of the passag-e of this Act there was no such county in Georg-ia as Crisp, this county having been created b~ virtue of an Act approved August 17, 1905. At the snme session of the Legislature and on August 21. 1905, there wns an Act approved providing for the organization of new counties and bv the fifteenth section of that Act it wns provided, "That all local laws and general laws having local 11pplicntion now in force within :my territory included within the limits of any new county, are hereby declared to be in full force and effect within such territory inCluded within the limits of such new county; provided th;t whereby the general laws of this Stnte provision is made for any of said laws going into effect in any county by nn election to be held, that an election mav be held in said new county at any time after its crention for the purpose of putting said local laws into effect, notwithstanding the provision of any general law requiring the lapse of any specified time after the last election on the subject."
Dooly county, from which county the territory of Crisp
Was taken, had. nt one time a county court, which by Act of

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the Legislature had been abolished. The suggestion is made that since the Act abolished the county court in Dooly, it follows under the provision above quoted as the fifteenth section of the Act prodding for the organization of new counties, that it is not now within the power of the grand jury of Crisp county to establish a county court in that county by recommendation as provided by section <.H 70 of the Code, quoted supra. This contention in my judgment is not sound. The section of the Act referred to, en:tcting that "loc:tl laws of force in a county from which a new county was taken shall continue of force in the new county" has no reference whatever to the establishment of courts. The evident :tll(l sole purpose of the Legislature in passing that provision was to continue of force in the new county the laws relative to local option. The context clearly indicates this purpose.
If, however, it be conceded that it was the purpose of the Legislature to carry to such new county the local laws in force in the parent county other than the prohibition laws, this provision would carry no inhibition :tg:tinst a new county having a county court, though in point of fact the old county had none, bec:msc it had abolished the same by legislative enactment. Dooly county had no law in force and effect which could be transferred to the new county. The most that could be claimed is that the Legislature had abolished the county court of Dooly county. This action manifestly could not be a prohibition against Crisp county.
I am therefore of the opinion, under the section of the Code first above quoted, that a county court may be lawfully created in Crisp county upon the recommendation by the majority of the grand jury of that county.
Yours very truly, JNO. C. HART, Attorney-General.
March 30, 1905. Governor Jos. M. Terrell, Atlanta, Ga.
DEAR Sm: In response to your verbal request, viz.: that I investigate the Act approved December 12, 1894, establishing in this State Boards of Medical Examiners, with the view of determining whether a Board may lawfully designate less

21
than a majority of its members to sit at a meeting called for the purpose of examining applicants for license to practice medicine in this State, I beg to reply:
The purpose of this Act clearly is to protect the public from incompetent physicians. The Boards of ::'IIedical Examiners are the agencies relied on by the public for its protection. The Act provides that cr~ch Board mr~y prescribe rules, regulations and hy-lr~ws for its proceedings and government. The law therefore should be Yiewed and construed in the light of its beneficent purpose.
The several Boards of ~Iei1ical Examiners in this State I am advised have adopted written examinations as the method for ascertaining the qualifications of an applicant to practice medicine. These questions arc prcYiously prepared by the Board. No business as such is transacted by the Board during these examinations. The presence of the Board is useful only for the purpose of seeing that the examination is fairly conducted. This may he done as well hy a committee selected from the Board as by the Board as a whole. This committee could not of course, grant a license, for only the Board could do that and I assume that your <pwstion presupposes that the written examination of the applicant will subsc<pwntly be passed upon by the Board as such.
It would therefore be within the compass of the law for the Board of Medical Examiners to designate any number of its members merely to preside at a written examination, the Board as such subsequently passing upon each paper representing the examination of the applicant. In other words the law is not concerned particularly with the mere form employed, but rather with the result of the examination, to the end that no person showing himself incompetent should be granted a license.
Yours very truly, JNO. C. HART, Attorney-General.
April 5, 1905. Governor Jos. M. Terrell, Atlanta, Ga.
DEAR Sm: Replying to your verbal inquiry, vit~.: "Upon the failure to hold an election by the voters of a militia dis-

22
trict for J. P. at the general election, does the incumbent hold an additional term of four years, or does such failure to hold an election create a vacancy in the sense that the N. P. Ex. Off. J. P. of the district, if there be such, or if no such officer then the ordinary of the county, should order the election?"
Following the decision of our Supreme Court in the case of Walker vs. O'Ferrell in the 58 Ga. p. 51~, and Code section ~~6 volume I, providing that officers of this State are to discharge the duties of their otfice until their successors are commissioned and qunlified. it is probable the acts of the old J. P. holding over, are valid as the acts of an officer de facto. The Constitution of this State, however, limits the term of office of J. P.'s to four years, and whether it is within the power of the I~egislature to provide that the term of this officer shall extend beyond the constitutional limitation is only incidentally involved in this discussion.
Code section 4061, in the chapter referring to J. P.'s proYides, "that vacancies are filled in the following manner: if there is a J. P. in the district where the vacancy occurs he shall appoint a dny for the election and advertise," etc., and section 4063 provides, "if there is no J. P. in the district where the vncancy occurs the ordinary of the county must order an election," etc. (The J. P. therein referred to manifestly means N. P. Ex. Off. J. P.) The question is, upon fnilure of the voters of a militia district to elect the successor to an incumbent, does this failure affect the office in the sense that an election should be ordered, or does the incumbent hold an additional term of four yenrs? I am of the opinion that failure to hold an election creates a vacancy within the meaning of the statute authorizing an election to be called to fill the vacancy. If the failure to hold an election does not create a vacnncy authorizing the officer named to order an election this might work a unique state of affairs. Instances readily present themselves to the mind where complications might arise and the incumbent hold, not by reason of the fact that he was elected to office, but because of the failure to elect. This is subversive of the very first principles of popular government.
,A review of the Act embodied in the provisions of the Code referred to will leave no room for doubt as to the meaning

23

of the word "vacancy" as used in this statute. I have traced the Act back to 1818, at which time it was provided that there should be two J. P.'s in each Captain's district, and it was there expressly provided that their tenure of office should not be longer than four years, and that the Ordinary should fill the vacancy by appointment. By evolution this statute has been changed from authority given the Ordinary to appoint in case of vacancy to power now conferred upon him to order an election by the people.
I am, therefore, of the opinion that where no election was held at the general election for a J. P. it is the duty of the N. P. of that district to order an election to fill the vacancy, and if the district is without a N. P., it then becomes the duty of the Ordinary to order the election.

:tours very truly,

c. JOHN

HART,

Attorney-General.

MAY 3, 1904-.
Hon. Philip Cook, Secretaty of State, Capitol.
DEAR Sm: I am in receipt of your letter of the 2d inst., in which you make inquiry whether it is the policy of the State to grant its marsh lands bordering on the navigable waters of the State, under application based on the "Head Rights" laws. This request is provoked by the application of a citizen of Camden County to acquire under the "Head Rights" laws certain marsh lands lying in that county.
I note on August 12th, 1890, the then Attorney-General, Hon. Clifford Anderson, rendered an opinion in which he held that marsh lands bordering on the navigable waters of the State were not subject to "Head Rights." The argument was that "Head Rights" laws contemplated the grant of lands suitable for occupancy and settlement, and whilst marshes might be drained and fitted for settlement and actual occupancy, it was very doubtful whether they were in the legislative mind when the acts were passed. He says further, however, if the "Head Rights" laws did contemplate the granting of marsh lands, that the policy of the State as to granting its

24

unsettled lands, at least marsh lands such as bordered on the

navigable waters of the State, was changed by the Act in refer-

ence to phosphate and the mining thereof. That Act was in-

tended to encourage the search for .phosphates, it is in a sense

a revenue measure and argues an intention on the part of

the State to hold these marshes where perhaps phosphates

were likely to be found. These lands, I take it, are of but little value for fa~ming or agricultural purposes, yet, by rea-

son of their locality it is not improbable that they may be

rich in phosphatic deposits.

I think the opinion of the Attorney-General as then ex-

pressed is sound, and even had I any doubt as to its correct-

ness, I should hesitate to give a contrary opinion, especially

since it declared a ehange of policy on the part of the State

touching the "Head Rights" laws by reason of the Act afore-

said, and the uniform practice since the opinion touching the

granting of marsh lands, coupled with non-action on the part

of the Legislature and acquiesence in that opinion. I, there-

fore, concur in the conclusions he reached, and until the

Legislature expresses a different policy I advise an adherence

to that opinion.

Yours very truly,

c. JOliN

HART,

Attorney-General.

SEPTEMBER 6, 1905.
lion. Philip Coole, Secretary of State, Atlanta, Ga. DEAR Sm: I note your request for an opinion on the in-
quiry, viz., whether the Secretary of State, under the law, may amend a railroad clwrter previously granted by him by reducing the capital stock thereof.
The question is quite an interesting one, and so far as I am advised an open one. Article 3, section 7, paragraph 18, of the Constitution, among other things, prescribes "all corporate powers and privileges to banking, insurance, railroad, canal, navigation, express and telegrnph companies, shall be issued and granted by the Sccretnry of Stnte in such manner as shall be prescribed by law."

25

The General Assembly in pursuance of this provision of the Constitution has prescribed by law the terms, liabilities and

restrictions upon which railroad charters may be granted, and where previously granted, may be amended. See sections 2159, ~178, 1840, 1844 and the Act approved 1893, p. 89, and the amendatory Act of 1897, p. ~6. A careful scrutiny of these Code sections and the Acts of the General Assembly does not disclose any express provision for decreasing the

capital stock of a corporation, previously created, by amendment at the instance of the Secretary of State. There is a

provision for increasing the capital stock of a company, which may be done under certain limitations and restrictions. See section ~165. By the Act of 1897 it has also provided a way

for "changing the face value of each share of stock" under restrictions and limitations. It did not occur to the legis-

lative mind that it might be desirable at times to reduce the capital stock, at least there is an absence of legislation au-

thorizing this to be done. The increasing of capital stock is a matter of grave con-
cern to a subscriber, and the legislative mind recognized that by permitting it only upon the conditions therein expressed. The diminution of the capital stock is of no less importance to

the stockholder, and to permit it without restrictions would be an injustice to the subscriber, and to grant it by incorporating provisions into the Act would be unauthorized and an assumption of authority by the Secretary of State.

I am of the opinion, therefore, that you could not allow an amendment decreasing the capital stock of a corporation in

the absence of legislatiYe authority to do such thing.

Yours ,-ery truly,

c. JOHN

HART,

Attorney-General.

SEPTE~IBER 8, 1903.
Han. Joe S. Tu1ner, Chairman Prison Commission, Atlanta, Ga.
DEAR Sm: I beg to acknowledge you~ communication of the -8th inst., and note the inquiries therein submitted. I will

26
lUldertake to answer the questions seriatim. You begin by saying: "The prison commission desires your construction of the Act of December 27, 1897, creating the Prison Commission, etc., in connection with the Act amendatory thereof, approved August 17, 1903, on the following points:
I. "Who appoints the officers and physicians who may be necessary to work the felony convicts taken from the several counties and worked upon the public roads thereof?"
I reply to that question as follows: The Prison Commission. The Act in question is in no sense a relinquishment by the State of the exercise of exclusive control over its felony convicts.
2. "\Vho fixes the salaries of such officers and physicians and pays the same?"
The salaries of such officers and physicians are fixed by the Prison Commission, but since the county working the convicts is to pay for such services, due regard should be paid by the Prison Commission to the recommendation of the officials of such counties both as to persons and salary. The Prison Commission, in their discretion, at all times possess the right to reject such recommendation, or to remove for cause, such persons.
3. "Can any county take less than the pro rata of convicts, to which she would be entitled under the provisions of these Acts, to work upon her public roads and draw from the State Treasury the net hire for the remainder pro rata not used for such purposes?"
A county can take less than its pro rata of convicts and draw from the State Treasury its pro rata of the net hire for the remainder.
4. "Is there any law or policy of the State which forbids the working of felony convicts and misdemeanor convicts together, or their being quartered together and kept under the same officers ?"
It is the well-defined policy of this State to work and keep separate the convicts of different sex, and of different color, and as far as practicable, the convicts of varying degrees of depravity, evidenced by the nature of the crimes of ~hich they stand convicted. The object of reforming the criminal should not be lost sight of in the infliction of punishment for the violation of the State penal laws, and while it would not

27
be a violation of the policy of the State to work the shorttermfelony convicts and the misdemeanor convicts of the same sex and color in the same gang and under the same officers, yet during the hours of rest and conversation they should r,ot be quartered together.
Very respectfully, JouN C. HART, Attorney-General.
NoVEMBER 13, 1905.
Hon. Wm. B. Merritt, State School Commissioner, Atlanta, Ga.
DEAR Sm: In reply to your inquiry this day submitted, viz., whether a county school commissioner or members of the Boards of Education of this State may buy up at a discount, or in any manner speculate in what are known as county orders or "script," or contracts which are to be paid out of the public funds of this State, I beg leave to say I think such officers are public officers in the sense that it is made a misdemeanor for them to purchase such order, script or contract, as provided by section '1-77 of the Penal Code.
Yours very truly, JOHN C. HART; Attorney-General.
SEPTEMBI!:R, H, 1905.
Hon. Wm. B. Merritt, State School Commissioner, Atlanta, Ga.
DEAR Sm: I am in receipt of your inquiry of even date, viz., how may a surety on the official bond of a County School Commissioner be relieved?
I have referred to the chapter on the County School Commissioner, sections 1366 et seq., and the law amply provides for his giving the bond, which is to be made payable to the County Board of Education, conditioned for the faithful per

28
formance of his duty, the amount and sufficiency of his security to be judged of by the County Board, but fails to make any provision for the relief of the surety who desires subsequently to come off of the bond.
There is a provision embodied in section 266 of the Political Code, which, in my opinion, must apply, because of the omission to provide specially for the relief of the surety on the County School Commissioner's bond, which section reads as follows: "\Yhen the surety to any bond given by any officer for the performance of any public duty shall give notice, in writing, to the Governor of his desire to be relieved from future liability, for good cause therein stated and sworn to (of which the Governor shall be the judge), or any such surety shall, in the opinion of the Gonrnor, formed upon satisfactory eddcncc, become insufficient, it shall be his duty to require of such officer a new bond and surety.''
The application of the surety desiring to be relieved on the County School Commissioner's bond should be addressed to the Governor, stating the reasons why he should be relieved, and should be sworn to. If the Governor deems the reasons for the relief of the surety sufficient, he may order the surety relie,,ed upon condition that the principal re-executes a ntlid bond satisfactory to the County Board of Education.
Yours very truly, Jorrx C. l-L\Rl', Attorney-General.
SEPTEUBER ;), 1005.
Han. TV. B. Jlerritt, State School Commissioner, Atlanta, Ga. DL\R Sm: I beg to acknowledge your letter of this date
requesting a construction in part of the Act approved August 17, HJO;), prodding local taxation for maintaining county and district schools, either or both. The questions you raise grew out of the following conditions, viz., a local school district in a named county is now proceeding to vote upon the question of district bxation for maintaining public schools in its school district. The county, on the other hand. is desirous of pro-

29

ceeding also to vote upon the question of county taxation for

maintaining county schools by local taxation. The election in the local district in point of time will come off first. Several points are raised and involved under these conditions,

which I have taken the liberty to place in the form of inqui-

ries,. and have answered them seriatim.

First. l\Iay the local district proceed with its election to establish and maintain district schools in view of the county's

purpose to proceed to have an election to establish and main-

tain county schools? To this question I reply by saying the district election
may proceed notwithstanding the contemplated election by

the county.

Second. \Vill the action of the district in this respect pre-

vent. the balance of the county from proceeding as a county

at a subsequent election to vote for establishing and main-

taining county schools by county taxation?

To this question I reply, no. The Act docs not hinder either from voting independently of the other looking to the adoption and maintenance of schools b~ local taxation.

Third. If the district should yote for local taxation at the district election to maintain district schools, and the county

should vote at the county election against the maintenance of

county schools by the county, at a subsequent election, would the action of the county have the cfl'cct of rcpcnling the district schools previously adopted?

In view of this contingency I do not think the action of the

county would in anywise a Jt'cet the district school previously

adopted. It would continue to exist as if uo county election

had been held.



Fourth. If the election to have and maintain counh schools should result in adopting county taxation would sncl~ district

be merged into a svstem of counh taxation. or would there
be county taxation .over a portion .of the cm~nty :mel district
taxation in part?

The Act under re,iew docs not deal with this phase of the

case, and the best that can be done with it is to adopt the ~onstruction consistent with the legislative scheme of adn.nc-

mg public education. The question, however, is not alto-

gether a legal one, but rather administrative. \Vhcre the

balance of the county votes for county taxation and a school

00
district in the county had voted for district taxation, the part of economy and simplicity of administration would doubtless authorize the County Board of Education to merge the district school into the county system. The Board of Education of the county, in the exercise of its discretion, might do this with propriety wherever the merger of the two systems was lo the best interest of the taxpayers of the district and welfare of the children therein.
Yours very truly, JoHN C. HART, Attorney-General.
l\L<\RCH 29, 1905.
Hon. W. B. ;~I-erritt, State School Commissioner, Atlanta, Ga. DEAR Sm: I am in receipt of your recent communication
in which you ask for an official opinion on the disposition of a county's proportionate share of the money arising from the convict hire, and beg leave to reply as follows:
It is provided by the Act approved August 17, 1903, that the net hire of the convicts shall be transmitted quarterly by the Treasurer of the State to the Treasurer of those counties entitled to participate in this fund. It is further provided that the county receiving its proportionate part of the net hire of convicts shall appropriate it as follows: "For the common schools or for the public roads as the first grand jury sitting after the first receipt of funds from ,the hire of felony convicts shall determine," etc. It is, therefore, competent for the grand jury to direct that this fund be applied either to the common schools or to the public roads, and after having done so the law provides that "no succeeding grand jury shall change the application of said fund within two years."
The question you more particularly desire me to pass upon is, what is to become of the fund in the event the grand jury fails to direct its application? The question is not without difficulty, and if we look alone for a prop_er interpretation of this Act only to its provisions, it forces the conclusion th:\t the fund must remain idle until the grand jury sees fit to

31

act. It could not have been the inteBtion of the Legislature

to tie up this fund in such manner. It has been the policy of the State for a quarter of a
century (See Acts 1887) to apply the "net amount arising from the hire of convicts of this State" to the support and maintenance of its common schools. In fact that Act declares that the arr:;ounts so arising "arc hereby declared to be a common school fund." Repeals by implication are not .favored, and while it is competent under the Act of August 17, 1903, for the grand jury of a county to divert this fund as a public school fund and apply it to the public roads, yet on the failure or refusal of the gr:md jury to take action in the matter, the fund should be applied to the common schools. This application of the fund growing out of the non-action of the grand jury is perhaps_not such a disposition of the fund as to bind a grand jury willing to act, and which does in point of fact act within the two years. But until the grand jury does affirmatively dispose of the fund, assuming that the grand jury has had an opportunity to act, it should be administered in conformity with the well-defined policy of the law and applied to the public school rund.

Yours very truly,

JoHN C. HART, Attorney-General.

~Lw 31, 1905.
Mr. Geo. F. J1ontgonzery, Secretary Railroad Commission, Atlanta, Ga.
DEAR Sm: I am in receipt of your recent communication in which you state that you are instructed by the Railroad Commission of Georgia to request of me an official opinion "as to the legality of the publication of rates of freight by the Commission, the application of which shall be confined to manufacturers." The case may be stnted in this way: l\fny the Commission say to the manufacturer of stoves in At-
lanta, "Yon shall h~ve by reason of being n manufacturer of
stoves a rate, say, of 25 cents per hundred on stoves to the city of Savannah," and to the jobber of Atlanta, "because you

32
are a jobber and not a manufacturer, you shall pay 60 cents per hundred on stoves to Savannah."
The argument in favor of reduced rates to the manufacturer is that a low rate of freight would stimulate the establishment of factories in Georgia and in consequence increase the material prosperity of the State. It might be conceded that this difference of freight in favor of the domestic manufacturer would act as a stimulus to the business and the policy in the end might redound to the general prosperity of the State, but whether you, as a Commission, charged with the duty of the regulation of rates of freight and passenger tariffs, have the power under the Act to make this discrimination between shippers in order to accomplish this, is the great question in the way.
To say to ::\Ir. A., who manufactures stoves in Atlanta, you shall have a rate of twenty-five cents a hundred to SaYtmnah, and to Mr. B., a dealer in stoves in Atlanta, you shall pay fifty cents a hundred to Savannah, on the same carload of stoves, is manifestly a discrimination in favor of l\Ir. A. The very purpose of the Act creating the Railroad Commission of Georgia was to prevent at least unjust discrimination. Rates of freight are fixed upon the idea that they arc just and reasonable. Just to the shipper in the sense that the amount he pays for transportation is fair. Reasonable to the carrier in the sense, for the service rendered the compensation is just. It can not be said that two different rates o( freight on the same article, in the same quantity, of the same quality, destined to the same point, differing only in that A is the shipper in the one instance, and B. in the other, can each be just and reasonable. The mere personnel of the shipper can not enter into the question, whether the rate charged is just and reasonable. 'Vho the shipper is can not illustrate the reasonableness of the charge or the cost of transportation. All persons in the same locality shipping in the same quantity and quality of the same commodity, are entitled to the same rate of freight. Equality is the aim of the law. The purpose of the Act creating the Railroad Commission of Georgia was to prevent unjust discrimination and extortion in the rates charged for transportation. To give to one class of people an advantage over another is Yiolative of the spirit, and, in fact, the letter of the law.

33

I am, therefore, of the opmwn that the Railroad Commis-sion of Georgia has not the power, nor is it authorized under the Act bringing it into existence, to promulgate a freight rate and confine it in its operation to a particular class of people alone. The Commission has no power to fix other than just and reasonable rates, and having done this, then all shippers under the same conditions and similarly situated, are entitled as matter of right, to the enjoyment of that rate.

Yours very truly,

c. JOHN

HART,

Attorney-General.

SEPTEMBER, 3, 1903.
Judge W. D. Nottingham, Umpire, Han. J. P. Brorvn, Arbitrator, H on. Roland Ellis, Arbitrator, Atlanta, Ga.
DEAR Sms: I am just in receipt of your communication of this date as follows: "The board charged with the duty of assessing -the physical property and franchise values of the Southern Railway Co., for the purpose of taxation, desires to submit for your decision two questions:
First. Is or is not the Umpire the Referee to whose sole decision is finally referred the question of values in event of disagreement of the two arbitrators?
Second. If you answer this question in the affirmative, then is it or is it not the duty of each of the arbitrators to sign the award so made by the Umpire, and adopt it as their own?
Third. Would an award signed by the Umpire alone be legal?
I understand the reason for asking the foregoing questions is due to the fact that the arbitrators and the Umpire selected to pass on the assessment of the property in controversy differ among themselves as to values. The submission is in pursuance of the Act of 1878-9, page 166, and codified as section 807, volume 1, of the Code, which is as follows: "Whenever the Comptroller-General shall be dissatisfied with the return for taxation required by law to be made to him by any corporation, company, person or institution, and shall make an assessment which is not satisfactory to the officer or-

34
person making such return, and two arbitrators are chosen, one by the Comptroller-General and the other by said officer or person, if said arbitrators fail to select an umpire within thirty days after receiving notice of their appointment, the Governor shall appoint two arbitrators, who, with the arbitrator selected by said officer or person representing the corporation, company, person, or institution, shall determine the question of amount or value, as the case may be, and their award shall be final."
While the Act is very meager, an analysis of it will show that it provides two methods for assessing property when the Comptroller-General is dissatisfied with the return viz.: Two arbitrators and an umpire, or, upon failure to select an umpire, then three arbitrators are to determine the values. The rule for making the award varies, that is to say, in the first instance, if the two arbitrators fail to agree the umpire is authorized to determine the subject-matter of dispute; in the second instance, under the submission providinK for the three arbitrators then the award should be concurred in at least by two. The umpire clearly has such authority.
"An umpire is a person called in to decide in case of the disagreement in opinion between arbitrators." Standard D:ctionary.
webster d~fines an umpire to be "a person to whose sole decision a controversy or question between parties is referred.
* * * * second, a third person who is to decide a con-
troversy or question submitted to arbitrators in case of their disagreement." This is also the definition of the word umpire as given by Mr. Blackstone.
"An umpire is a person chosen either by the parties themselves or by the arbitrators under the authority of the submission or of some statute; to determine alone the whole subject of dispute when the arbitrators have not been able to agree upon it." Eng. & Am. Enc. of Law, page 710.
Our own Code, however, is clear and unequivocal on the proposition, see section 4481, which reads as follows: "If an umpire be provided for in the submission an award by him alone, or jointly with the arbitrators, will be good." See also in this connection T. U. P. Charlton, page 286.
Sheffield vs. Clark, 73 Ga., page 92. Smith vs. Morse, 9 'Vallace, page 76.

35
Rigdon vs. Martin, 6 Maryland, page 403.
11 Mass., page 377. 5 Missouri, page 551. 2 Watts, page 74. 4 Rand, page 275. 9 Gratt, page 684. I may add in conclusion without repeating your questions that each of them is answered in the affirmative.
Yours very truly, JoHN C. HART, Attorney-General.
AuausT 30, 190,~.
Dr. T. Hamilton Goss, Pres. Regular Board of Med. Examiners of Ga., Athens, Ga.
DEAR Sm: I am in receipt of your letter of the 26th inst., in which you propound substantially the following inquiry and invoke an official ruling thereon, viz., whether a physician entitled to practice in Georgia at the time of the passage of the Act approved December 12th, 1894, establishing State Boards of Medical Examiners, left the State and now wishing to return, must submit to examination as a condition precedent to the practice of medicine in this State. I beg leave to reply as follows:
After carefully reading the Act of 1891, which has as its prime motive the protection of the people against illegal and unqualified practitioners of medicine, etc., I am of the opinion that a physician under the state of facts above submitted could not lawfully practice medicine in Georgia until he had first made application to, and examination by, the Board of Medical Examiners of the school in which he desired to practice medicine. There is no room for doubt as to the correctness of this ruling, except for the presence of certain language in the Act, which, upon a superficial reading raises the suggestion that a physician resident of Georgia at the time of its passage and qualified then to practice medicine has a certain vested right, and that the policy of the law was to protect this right. The language referred to is as

36
follows, and is a part of section 8: "That this Act shall take effect from and after the first day of January, 1895, and that it shall he unlawful thereafter for any person to commence the practice of medicine or surgery without complying with the prodsions of this Act." The argument is that the physician in the case you put had already "commenced the practice of medicine" in Georgia prior to the passage of this Act, and that when he returns to Georgia he commences where he left off. This argument is not sound, and, as stated, it is only suggested upon a superficial reading of the Act, for it must he remembered the purpose of the Act is not to protect so much the physician in his right to practice medicine, hut for the express purpose of protecting the people against persons not qualified to practice medicine and surgery. It is an Act passed in the interest of the public health and safety, aml it should be construed with that purpose always prominently in view.
The physician who left Georgia in 18!);) would stand in no better fix than the physician who remained in Georgia, hut had ceased the practice of medicine. lie starts his profession, as it were, anew, and he should be willing to comply with all the laws and to demonstrate his fitness to practice the noble art of healing, and where he is unwilling to demonstrate that he is qualified to minister to those bodil~, afflicted he should be denied the pri,ilcgcs which should be enjoyed and exercised only b~' those competent to deal with these vital questions.
Y onrs \Try truly, JoHN C. HAnT, Attorney-General.
JeNE 28, 1905.
Hon. Chas. S. Northen, Secretar.IJ of the Senate, Atlanta, Ga. DE"\H Sm: I note your request that I adYise you officially
on the following questions, Yiz.: 1st. How many Yotes are required to elect the President
of the Senate? 2d. :\fay rr Senrrtor, after haYing Yoted, change his vote
before the final result is announced?

37
This information is asked by you for the reason it may be vour duty to rule thereon for under the law as Secretary .of the last State you preside at the organization of the present Senate.
Section 292, \olume I, of the Political Code, relatiYC to the org:mization of the General Assembly reads as follows: "Each branch shall be organized by the Clerk and Secretary thereof respectively, who arc ex-officio presiding officers until such arc elected. ~o question shall be entertained by them but one relating to the organization, and in deciding such questions they arc to be governed, as far as practicable, by the standing rules of the House over which they preside.
." It will be noted from the foregoing that you, as presiding officer, can entertain only questions relating to the organization of the Senate. and in passing upon these questions, you are to be guided by the standing rules of the Senate, as far as practicable. The rules of the Senate rover both questions you have raised, and leave no doubt as to how you should act in the event either of the questions are raised. Rule 117 of the Senate provides as follows: "In all elections, a majority of the Senators present shall be necessary to a choice." This rule is in harmony with section 29"1< of the Code, which provides "a majority of votes is necessary to a choice" for president. This section of the Code, and the rule referred to, make plain the answer to your first inquiry, that the vote of "a majority of the Senators present shall be necessary to a choice."
Relative to legislation the constitutional rule is that a majority of the votes of all the members elected to each house is essential, but relati\'e to the organization of the General Assembly the statutory law, and the rules of the Senate make necessary only the vote of a majority of the Senators present.
The rule of the Senate relative to your second inquiry is 'equally clear and explicit. Rule 115 reads as follows: "On the call of the yeas and nays the Secretary shall read the names of the Senators after they have been called, and no Senator shall be permitted to change his vote, unless he at that time declares that he voted under a mistake of the question." A Senator, therefore, may change his vote only when

38
he may truthfully declare that he voted under a misapprehension, "or mistake of the question."
Yours very truly, .JoHN C. HART, Attorney-General.