The sixth annual report of John C. Hart, Attorney-General of Georgia, with an appendix containing opinions from January 1st, 1907 to December 31st, 1907

'HE SIXTH ANNUAL REPORT
OF
JOHN C. HART
ATTORNEY-GENERAL OF GEORGIA
WITH AN APPENDIX CoNTAINING OPINIONS FROM
}ANUARY IST, 1907, TO DECEMBER 3IST, I907
ATLANTA, GA.
The Franklin-Turner Company 1908

REPORT
OFFICE OF THE ATTORN'EY-GENERAL.
ATLANTA, GA., De~ember 31, I907 To His Excellency Hoke Smith, Governor.
SIR: Pursuant to the provisions of law, I have the h_onor to submit herewith my annual report of the work in part of this office from January I, I907, to December 3I, I907, inclusive.
I also append a number of official opinions which were .reduced to writing, rendered the heads of the various departments of the State, and considered of sufficient import~nce for publication. There are a large number of oral opinions given the various departments each year, which greatly exceed those reduced to writing, and while they require time, investigation and refloction, were not reduced to writing because the questions involved were. momentary and not. likely to occur again, and as to others not reduced to writing because of press:... ing an.d important matters.
The litigation of the State continues to grow, and Georgia finds herself very frequently litigating not alone iJ) her own courts, but as well in the United States courts, here and in Washington, D. C.
The following pages will give in pait the records of thiS' office and will serve to illustrate tke scope, kind and

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result of the matters with which this depa,rtmeht has

dealt and has to deal.

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There is one cl~s c~:woFk,in- this. office-which, while

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not a part of the duties, strictly speaking, of the office,

yet continues to grow until it takes up a very large por-

tion

o. ~

th. e.

tilljle

<>!

~ljte

At~o~ney-General

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and

his

office

force. I refer to the numerous requests for opinions

from cou,nt;y and municipal officers to whom the law

does not permit the Attorney-General to render o~ial

op,.inions. \Vhil<r no offi~::ip.l opinion can be rendered in this way and to th~se parties, yet courtesy requires that

the requests be answered, .and the information asked for

be given, though unofficially.

ARBITRATIONS IN 1907.
During the year 1907 I represented the State before the board of arbitrators in quite a number of. cases, where the amount of taxes due by the corporation was in question; The return of the companies had been rejected by the 9omptroller-General and he had assessed the property, which assessment being objected to arbitrators were chosen, who being unable to agree umpires were selected and the questioh of amount argued before eaCh hoard.' The result in. each case is hereto appended in tabular fo~.
It wi11 be noted that whilst the sums awarded by the arbitrators as the ])roper valuation of the properties in controversy for taxation are still less than the assess-

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ments made by the Comptroller-General, they neverthe~ less are a substantial increase over the amounts in the voluntary returns made by the railroad companies. I believe it has been estimated that the increase of values of corporate property as the result of awards by arbitration, or as the result of negotiation between the Comptroller-General and the corporations is approximately $27,ooo,ooo for the year 1907.
I have taken the position invariably before courts in an effort to enforce the Railroad Commission orders, as well as before boards of arbitration involving the question of the value of property for taxation, that it was the duty of the railroads to return their property for taxation as the law required, at its fair market value and that when this was done they were entitled to earn a fair return upon their investment. In other words, I have urged that it was improper for railroad companies to return their property when it was to be taxed by the public at one sum, and when the railroads in turn sought to tax the public that it might earn a fair return on its investment, to fix it at a different sum. The difference now between the valuation of railroad property for taxation and the amount at which railroads value their property in the courts when the question is raised that an order of the Railroad Commission is confiscatory, has happily in many of the properties of this State been wiped out and we find them litigating, claiming the right to earn a fair return on their property at the sum for which it has been returned for taxation. This is as it should be and a fair minded public will so recogmze.

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RESULT OF ARBITRATION HELD IN 1907.

Arbitrated Return. Assessment. Value.

Atlanta & West Point R. R ... $ 2,476,478 $ 4,279,100 $ 3,678,539

Atla,ntic Coast Line Ry ...... 12,857,598 22,408,000 15,571,000
Central of Georgia Ry *...... 3,301,173 13,159,376 4,052,902

Seaboard Air Line Ry ....... 10,098,002 17,011,680 12,651,580

Southetn Railway . -. . . . . . . . 14,884,923 26,500,QOO 18,539,336

Alabama Great Southern Ry. 584,606

817,662

642,866

A.tlantic Cable Tel. Cable Co .. 178,571

356,000

300,000

Western Union Tel. Co . . . . . . . 1,030,240 2,422,960 1,746,000

Augusta Ry. & Electric Co ... 697,189 1,472;000

931,780

Coluinbus R. R. Co .......... 243,633

656,000

385,768

1\facon Railway & Light Co ... 533,619

984,000

768,914

Sa,vannah Electric Co . . . . . . . . 1,170,060 2,120,000 1,546,250

THE CENTRAL OF GEORGIA RAILWAY COM-
.PANY AND GEORGIA RAILROAD & Bi\JN'KING COMPANY vs~ WM. A. WRIGHT, COMP-
TROLLER-GENERAL ET AL.

This case involves the question of the liability to tax-

atitm in this State of fifteen thousand shares of stock

1n the Western Railway of Alabama, an Alabama cor-

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poration, held by the Georgia Railroad & Banking Com-

pany and fifteen thousand by the Cenfral of Georgia

Railway Company. A full historyof the 'cases has been

set forth in previous reports. '

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:. The' cases originated in the Superior Court of Fulton

county, wherein the railroadcompa~y claimed that the fi.

fas. for taxes should be enjoi'ned upon the grounds there-

in. stated. .The prinCipal ground urged oy the railroad

* Only franchise yalue referred. to arbitrati~m.

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teompanies was that the Comptroller-General acted with out authority of law and without due proc.ess of law in i~suing the executions and that the statute under which he acted was violative of the Federal Constitution in that no provision was made in the Act for notice to the taxpayer, and because of this defect is the taking of property without due process of law. Judge Pendleton upheld the contention of the State and ordered the fi. fas. tG proceed. His judgment on appeal to the Supreme Court of Georgia was affirmed. The railroad companies by writ of error carried the case to the Supreme Court cf the United States, where on November 18, 1907, the judgment of the Supreme Court of Georgia was reversed .on the ground that the Act as construed by the State Court was violative of the Federal Constitution in that it did not provide for notice to the taxpayer, and was the taking of property without due process of law. The mandates have not yet been sent to the clerk of the Supreme Court of Georgia.
The case of the Georgia Railroad & Banking Company 1'S. Wright, Comptroller-General, has since been tried in the Fulton county Superior Court and a verdict has been .rendered for the State of Georgia, county of Richmond ,ond city of Augusta for the sum of $335,ooo.oo, and the money collected and paid over to the respective jurisdictions.

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STATE OF GEORGIA vs. TENINESSEE COPPER
COMPANY ET AL.
A full history of this case has been set forth in previcns reports and it is unnecessary to repeat it here. At the time of making my last annual report the case was pending before the Supreme Court of the United States for final hearing.
On May 13, 1907, the Supreme Court of the United States rendered a decision in the case, upholding the contention of the State of Georgia, and directing the State to submit a form of decree which was done in October last.
During the session of the last general assembly a resolution was introduced and passed reciting that the case had been decid<!d by the Supreme Court in favor of the State of Georgia, adjudging that the State in her sovereign right was entitled to the injunctfon prayed for and if she insisted upon her right it is the duty of the Suprerrie Court to enter a decree accordingly, after giving the copper companies a reasonable time within which to install sulphuric acid plants or other appliances for eliniinating the poisonous gases, recognizing and fully realizing the vast interests involved, and feeling that the State of Georgia should act in a. spirit of wisdom, justice and moderation, and recommending that the matter be left entirely in the hands of the Attorney-General, and recommending that he proceed liberally in the matter t.:> the end that no unnecessary hardship shall be imposed upon the copper companies and that no unnecessary time

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shall be allowed them to complete the structures that they now are building to stop the fumes, to the damage and injury of the citizens of Georgia and to her public domain.
Subsequently, I made a trip to Ducktown, Tennessee, and made a personal inspection of these copper plants and an investigation of the conditions there, and found they were proceeding to install the sulphuric acid chambers to take care of the fumes. The installation of these acid chambers entails a considerable outlay of money and time and acting in accordance with the resolution of the general assembly, I have thought the copper companies should be allowed a reasonable time within which to complete the chambers.
On account of momentous questions involved in this matter and the responsibility having been placed entirely on me by the general assembly, I desire to append a report made by Dr. John M. McCandless, former State Chemist, who I very recently directed to make an inspection of the works and report upon the conditions now existing. . I do this for the reason that the general _ assembly may be fully adyised of the situation to the end that if the policy pursued by me is not satisfactory, it may feel at liberty to further instruct me in the premises.
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REPORT OF DR. JNO. M. McCANDLESS.
J;lon. Jno. C. Hart, Attorney-General of Georgia, Atlanta, Ga.
DEAR SIR: In accordance with your instructions, I visited dun'ng the. first week of April the copper reduction works of the Tennessee Copper Company, at Copper Hill, Tenn., and the works of the Ducktown Sulphur, Copper & Iron Company, Limited, at Isabella Tenn., and beg to submit the following report:
I left the train at Blue Ridge, Ga., and drove through the country by conveyance to Copper Hill, Tenn., a distance of about fifteen miles. The development of plant life was as yet too backward in that region to ascertain by actual observation whether vegetation was suffering there at that time from the effects of the sulphur smoke emitted from the smelting works.
I questioned, however, a number of people whom I iuet while driving through the country, as to whether any improvement had been noticed in the past few months as to the character of the smoke coming from Duc~town; their replies were somewhat at variance, some. saying it was not nearly so bad, others that it was just as bad as ever.
At Copper Hill, I called upon the manager of the plant, Mr. Gottsberger. I was received courteously and shown through the plant. Having visited this plant on two former occasions as a member of the commission appointed to investigate the conditions obtaining there, I am free to say that there has been a very great and

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marked improvement in the local conditions over those

which prevailed at the .time of the first visit of the com-

.mission in 1903 and the second in 19o6. At the time

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of our first visit, in 1903, all ore treated by the company

was first roasted in heaps in the open air. At .that time

{I 903) the atmosphere of the neighborhood was so

charged with the sulphurous smoke emitted by the burn-

_ing piles of ore, as to be stifling and almost insufferable.
Since. that time a lofty sta~k ( 2o feet in diameter and

.325 feet high) has been erected, through which all the

gases from the smelting plant are drawn artd discharged

at such altitude that the local conditions are greatly im-

iJroved, the odor of sulphur or the presence of smoke not

being noti'ceable in the atmosphere in the imt11ediate

neighborhood of the plant; the 'cause being apparent in

the great column of smoke visibly discharged from the

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tcp of the stack and borne by the wind far away from

that locality." Conditions at Copper Hill have also been

greatly i'mproved in the recent past by the erection of an
~nor~o~s set of acid c~a~bers adjoining the copper
plant, in which sulphuric acid is' n()~ beitig made on a largescale. There are twelve o'f thes~ chambers, made

of lead, and each one r75,ooo cubicfeet in capacity, or

wfth a total capacity of 2, roo,ocio cubic feet. . This plant

is larger than any 'other single plant in the world and
h~s 'e;idently been ~rected in the be~t ~nd most sub-
stantial m~nner, the foundatiohs and supporting pillars
being" all of cement ()r concrete, and the entire frame-

work. of structural steel; the Glover & Gay Lussac tow~
ers and' the walls of the chambers being tonstructed of

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lead. At the point where the chambers have been built, level ground is :,tlmost unobtainable, and consequently the crown of the hill has been removed in order to obtain a site, and a vast amount of grading has been done before building operations were possible. The company claims to have spent approximately $1,ooo,ooo in the erection of this sulphuric acid plant and its accessories, and there can be n"o question but what a very large sum of money has been expended by them_ and that a great stride forward toward the solution of the problem has been taken.
The engineer who designed and built the plant, Frederic Falding, of New York, has demonstrated ability of the highest order in meeting and overcoming difficulties of the most unusual nature. For instance, in ail ordinary sulphuric acid plant, ore of high grade and of coristant composition is charged into the burners with the result, that gas of that uniform composition, best adapted to the process, is admitted into the chambers; but here, we have a totally .different set of conditions; the main business of the plant is to smelt copper ore and not to make sulphuric acid, and owing to the exigencies of the case and the varying conditions in the smelting furnaces,. the composition of the gases passing into the chambers may and do change in the space of a few minutes from that composition best adapted to the production of sulphudc acid to a composition wholly unfit for the purpose.
Mr. Falding is, however, on the ground, battling with these difficulties, installing ingenious devices, and to a

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:great extent overcoming these troubles. The best evidence <~.f this is that he is making acid, at present at the rate .of 300 tons per day; eventually, he believes, that he
w~ll bring the system up to a production of sao tons per
<lay of 00 B. acid. The company also claims to have -on .hand a stock of 6,000 tons of acid.
Leaving the plant of the Tennessee Copper Company, I drove to that of the Ducktown Sulphur, Copper & Iron Company, Limited, and was kindly and courteously re-ceived by the manager, Mr. Freeland, who showed me
through the plant. This company is endeavoring to
make sulphuric acid by an entirely different process, or what is known as the contact process. They have spent .approximately $so,ooo up to date on their plant, and han .as yet produced no acid; their plant is as yet in the -experimental stage, is small and if eventually successful, will produce only a comparatively small ql:lantity of .acid. They state, however, that it is their intention as :Soon as the first unit of the plant becomes a successful producer, to multiply the number of units so as to abate the nuisance.
So much for what the companies have accomplished. It now remains for me to estimate as nearly as possible, from the data in my possession, the quantity of sulphur. <~.us acid uncared for and which is being discharged into the atmosphere.
The production of the Tennessee Copper Company for the year I907, was, according to their statement, 380,000 tons of ore; this ore will average 25 per cent. sulphur. Approximately one ton of slag is produced for

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e.ach. ton. of ore smelted, and the slag retains on an aver..:

a.ge ..J

~r cent.

of
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sulphur. .

This leaves 24 per cent.. of

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snlph~r which is convertep into sulphur dioxide. .

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, From the data obtained, I have attempted to estiinat~

in figures in a definite and conservative way, the extent' to wl;Iich the. Ten~essee Copper Company has succ~eded;

in abating the np,isance. , We have then an annual pro-

duction of 380,000 tons of ore and a daily production

of-

to4c tons of ore, equivalent to 250 tons sulphur:; which is equivalent to 500 tons sulphur dioxide.

But the company i,s now producing 300 tons of 60 acid daily, .which requires for its production I 52.8 tons cf sulphur dioxide, which must therefore be de1ucted from the 500 tons noted above, leaving 347.2 tons stilt being discharged into the atmosphere. In other words, the company is now condensing into acid 30.5 per cent. of the total surphur dioxide. Should they succeed in bringing their daily production of acid up to 500 tons of 00 strength, as thei'r engineer anticipates, when the various obstacles in the way have been overcome, they will then be condensing and removing 254.8 tons of sulphur dioxide, or 51 per cent. of the noxious gas formerly discharged into the atmosphere from the works of the Tennessee Copper Company. Until that time arrives, l:owever, there will continue to be discharged into the atmosphere 347.2 tons of sulphur dioide from the TenRessee Copper Company, and according to their own

15
figures, 166 tons from the works of the Ducktown Sulphur, Copper & Iron Company, who, as yet, are doing rtothin.g to actually reli'eve the situation. So that. we still have a total of five hundred and thirteen tons of sulphur dioxide being daily discharged into the atmosphere from the stacks ot the two copper reduction companies.
By your permission, I will discuss briefly the situation as it presents itself to me. I will not dwell upon the damage which has already been inflicted upon that section of our State, as it is already well known to you and i~ a matter of record in the reports of the commissions appointed to investigate the matter, and in the affidavits of State officials, experts and private citizens. The past damage is evident, it speaks for itself, and I shall not further allude to it, but confine myself to a brief statement of such features of the situation as in a measure seem to offset that damage, and to promise a gradual diminution, if not a final extinction of such damage.
In the first place, it is as yet too early to say from actual
observation of trees and plants, whether the diminution in the total quantity of gas discharged has materially diminished the damage done to -yegetation. I think that a careful and unbiased study of this question should be made during the months of June or July, when the plants and trees are in full leaf; the leaves of the trees
are their lungs, and when fully developed, would be the
best time to study them and to ascertain whether new and daily damage is occurring. There is this to be said

16.
in this connection, that by the ingenious devices of En gmeer Falding, the gases richest in sulphur dioxide are drawn into. the plant for conversion into sulphuric acid, and "those poorer in sulphur dioxide, or in other words, those very' largely diluted with air, are discharged through the tall stack. This ~eing the case, the diffusion of the. noxious gas into the air is very much facihtated, and the probability is that the percentage of sulphur dioxide existing in the atmosphere over any given area ef country will be very much diminished from what it formerly was, and the damage thereby probably reduced. In any event, the question should be broadly investigated as to whether there now exists any serious danger of widespread destruction of forest areas, thereby inviting erosion and menacing the sources of our water courses, and thus damaging the commonwealth as a whole, or whether local and individual injury alone is threatened. In the next place, I am impressed with the fact that the company has already succeeded in condensing and converting into a valuable industrial product thirty per cent. cf the noxious gases and hope before the expiration of the present year to increase that percentage to fifty.
The uses of sulphuric acid are many; it is the king of the acids and the civilization of a country may to a large extent be measured by the quantity of sulphuric acid produced and consumed in it. It is used in the produ.ction of many other acids, such as muriatic, nitric and acetic, in the manufacture of many chemicals, and pharmaceutical preparations; it is also very largely used in the manufacture of dynamite and other explosives and

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is especially necessary in the manufacture of acid phos phate, which is so extensively used as a fertllizer, not only in the Southerri States, but all over the country. About one million tons of J!hosphate rock are produced annually in the Statee of Tennessee, Florida and South Carolina, and approximately one million tons of sulphuric acid are required to convert the pulverized phosphate rock into add phosphate, and thus render its phosphoric acid soluble or avallable as plant food.
The immense quantities of sulphuric acid required for this purpose are now produced in a great number of small plants or acid works scattered through the country, and the raw material from wh1ch the acid is produced is pyrites ore imported mainly from abroad.
In conclusion, one other phase of the situation presented itself to me during my visit to Ducktown, which it seems to me may properly be set before you.
I was impressed by the fact that thriving communities have grown up around the smelting works, which are wholly dependent for their existence upon the prosperity of these works. My information is that the Tennessee Copper Company alone employs at present in the neigh borhood of 1,200 men per day; that is the average number employed per day, and to supply that number steadily, 2,500 are registered on their pay-rolls. The monthly pay-roll of the copper company is over $6o,ooo, and a large part of this sum is paid out to citizens of this State.
I have endeavored to set the facts in the case before you as clearly and succinctly as possible, realizing the

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power lodged in you and the grave responsibility which

devolves upon you of reaching a decision, which upon

the one hand shall protect the interests of the common-

wealth, and the property of the people living in the

region affected, and which shall at the same time have

due regard to the vast property interests of the copper

companies, and the mining and manufacturing develop-

ment of the country resulting from their operations.

Respectfully submitted.

JNO. M. McCANDLESs.

Atlanta, G~., May I, Igc>8.

CAPITAL CASES.

In conformity with the Constitutional provision, I

have, during the past year, represented the State before

the. Supreme Court of Georgia in the following capital

cases:

Emanuel Roseboro vs. State. Miller county. Life

imprisonment. Affirmed.

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Gus Caesar vs. State. Twiggs county. Life imprisonment. Affirmed.

A. P. Glover vs. State. Richmond county. Death. Reversed.

Matt Tolbert vs. State. Jenkins county. Life 1m prisonment. Affirmed.

Joe Pryor vs. State. Effingham county.. Life 1mprisonment. Reversed.

Jas. Johnson vs. State. Colquitt county. Life imprisonment. Reversed.

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G. E. Crawford vs. State. Fannin county. Life imprisonment. Affirmed.
Freeman Hughes vs. State. Montgomery county. Life imprisonment. Affirmed.
Henry Bradley et a1 vs. State. Montgomery county. Life imprisonment. Affirmed.
Clem Jones vs. State. Terrell county. Life imprisonment. Affirmed.
Pearly Allen vs. State. Troup county. Life imprisonment. Affirmed.
Willie Rogers vs. State. Chatham county. Death. Affirmed.
Reason Hadnley vs. State. Irwin county. Life imprisonment. Affirmed.
Will Johnson vs. State. Fulton county. Rape. Death. Affirmed.
Wilf McMillan vs. State. Johnson county. Life imprisonment. Affirmed.
Alonzo Horton vs. State. Spalding county. Life imprisonment. Affirmed.
Dave Bird vs. State. Troup county. Life imprisonment. Affirmed.
John Robinson vs. State. Early county. Life imprisonment. Affirmed.
Foster Brooks vs. State. Hall county. Life imprisonment. Dismissed.
Sue Brooks vs. State. Hall county. Life imprisonment. Reversed.
Ed Robinson vs. State. Polk county. Life imprisonment. Affirmed.
Pete Joiner vs. State. Dodge county. Life imprisonment. Reversed.

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N. J. Threlkeld vs. State. Grady county. Life im-
prisonment. Affirmed. Foote Bagwell vs. State. Fayette county. Life im-
prisonment. Reversed. Will Nick vs. State. Washington county. Death.
Affirmed. Charlie Allen vs. State. Henry county. Death. Af-
firmed. B. G. Adams et al vs. State. Haralson county. Life
imprisonment. Reversed. Will Morris vs. State. Jones county. Life imprison-
ment. Affirmed. .Philip Miles vs. State. Decatur county. Life im-
prisonment. Affirm0d. Lee Holmes vs. State. Mcintosh county. Death.
Affirmed. H. E. Lyles vs. State. 'vVare county. Death. Af-
firmed. James S. Ye<'ltes vs. State. Decatur county. Life im-
prisonment. Affirmed. S. R. Herrington vs. State. Burke county. Life im-
prisonment. Affirmed. T. H. Moore vs. State. Burke county. Life imprison-
ment. Affirmed. Bud Thomas vs. State. Muscogee county. Death.
Affirmed. Sallie Phreney vs. State. Dodge county. Life im-
prisonment. Affirmed. Willie Rogers vs. State. Chatham county. Death.
Affirmed. Dan Styles vs. State. Ware county. Life imprison-
ment. Reversed.

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Sylvester Sasser vs. State. Screven county. Life imprisonment. Reversed.
Gordon McDonald vs. State. Pulaski county. Life imprisonment. Affirmed.
Dennie Dallis vs. State. Cobb county. Life imprisonment. Affirmed.
John Harper vs. State. Murray county. Death. Affirmed.
Randolph Dotson. Appling county. Life imprisonment. Reversed.
Dock Hamilton vs. State. Wayne county. Life imprisonment. Affirmed.
Joe Lewis vs. State. Berrien county. Life imprisonment. Affirmed.
Junior Oliver vs. State. Pulaski county. Life imprisonment.. Affirmed.
Robt. Golatt vs. State. Columbia county. Death. Affirmed.
Jim Reed vs. State. Hall county. Life imprisonment. Affirmed.
C. L. Menefee vs. State. Gordon c~unty. Life imprisonment. Affirmed.
Porter Jones vs. State. Putnam county. Life imprisonment. Affirmed.
RAILROAD COMMISSION CASES.
Under ~he Act of the General Assembly approved August, 1907, the office of Special Attorney for the Railroad Commission of Georgia was created. Your Excellency appointed Judge James K. Hines as Special Attorney. Judge Hines has assisted me in a number of

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cases pending before the State and Federal courts involving the enforcement of the rates promulgated by the Commission.
Perhaps the most important case tried is that of the Central of Georgia Railway Company 'l!S. The Railroad Commission, involving the lowering the passenger tariffs in accordance with an order of the Commission reclassifying the roads of this State. This case is substantially a test case, and after long and patient hearing before Judge Newma.n in which a number of exceedingly important questions were involved, he sustained the contentions of the State and ordered that the rate should go i~to effect subject to modifications of his order as the facts might disclose after six months' trial. Thi~ case, as stated, involved a number of very interesting and important questions, among them the right to maintain a suit under the Georgia Act making the Governor ~nd Attorney-General parties. The State demurred upon the ground that a suit against the Governor and the Attorney-General was, in effect, a suit against the State, and after argument the court refused to make the Governor a party, and directed that the demurrer be sustained as to the Attorney-General, thereby dismissing that officer as a party defendaat.
This circular is now of force in Georgia, and the railroads are obeying it. Georgia is the only State, so far as I am advised, in the South at least, that has put into effect and practical operation legislation or orders of the Commission enforcing the reduced rates. Pending a prac-

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tical trial, so to speak, of this case of its actual effect upon the !'evenue of the railroad company, the other cases are held in abeyance and the ultimate enforcement of the rate as to them will no doubt be controlled by the case quoted. In the meanwhile, however, all railroads are observing this order of the Commission.
WADLEY SOUTHERN RAILWAY COMPANY VS. H. WARNER HILL ET AL., RAILROAD COMMISSIONERS ET AL.
The case arose under Circular No. 32 5, issued .by the Railroad Commission of Georgia, establishing continuous mileage rates between the Central of Georgia Railway Company and the Wadley Southern Railway Company on and after November 26, 1906. This circular w~s promulgated because the Central of Georgia Railway Company had acquired possession of the Wadley Southern Railway Company.'
The Wadley Southern Railway Company filed an injunction in Cobb Superior Court in January, 1907, to restrain the enforcement of this circular on the ground, (I) for want of authority under the law to take such action, ( 2) because, as to the Wadley ~outhern Railway Company, the rate so fixed was unjust, unreasonable and confiscatory.
The judge held that the rule could not be enforced because the two railroads were separate entities, and so recognized by the State, and enjoined the enforcement of

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the circular, under the first contention of the railroad company, as above.
The case was carried to the Supreme Court of Georgia on January 28, 1907, and the judgment of the lower court was reversed.
WESTERN UNION TELEGRAPH COMPANY VS. WILLIAM A. WRIGHT, COMPTROLLERGENERAL, ET AL.
The Western Union Telegraph Company refused to pay a franchise tax to the State of Georgia for the year 1907, and the tax was assessed by the Comptroller-General under the law. The company objected to the assessment and elected to arbitrate the question of value. The arbitration was had and an amount fixed by the _ u~pire. The company then filed an injunction proceeding in the Circuit Court of the United States to restrain the Comptroller-General from levying and collecting the tax, the contention being that it owned no franchise of value in Georgia, and that the only franchise it owned and operated under was that conferred by the terms of the Post' Roads Act of Congress of 1896, which they claimed could not be taxed under the laws of Georgia, the telegraph company claiming that since it had accepted the provisions of the Act of Congress it became an instrumentality of the national government, and ;is such could not be taxed by the 'State of Georgia. The State d~murred to this petition, which, after argument,

25
was sustained by Judge Newman. The fi. fas. are now proceeding for the collection of this tax, involving some $30,000 in money, besides the important question at issue.
]NO. C. HART, ATTORNEY-GENERAL m. THE NEAL BANK.
The State Bank Examiner, upon making an examination of the Neal Bank, and finding that it was insolvent, took'possession of said bank and reported to the Governor that the "bank was not in position to resume business or liquidate its indebtedness to the satisfaction of all creditors, including its shareholders."
In pursuance of thi's report the Governor instructed the Attorney-General to institute proceedings to put the bank in the hands of a receiver, as provided by. the Act approved August, 1907, which was done on December 24, 1907. The court passed an order granting the petition and ap~ointing the Central Bank & Trust Corporation as receiver to wind up the affairs of said bank.
The Neal Bank was a State depository, and there was on deposit to the credit of the State, $204,37398. An intervention has been filed by the Attorney-General asking the court to direct the receiver to pay over this amount to the State Treasurer, under the State's prior lien upon all the assets of the bank. Objection to this intervention was filed by n;rtain creditors of the Neal Bank, insisting that the State had no prior lien on this money under the law and the facts. Various questions have been

26
raised in one form and another not material to be here set out. The case was tried before Judge W. D. Ellis, and after many days of investigation he rendered judgment upholding the State's contention, and passed an order directing that the receiver should pay over to the State the money in controversy. I am advised that the Treasurer has since been paid the money in pursuance of the order.
RECOMMENDATIONS.
I beg to make public acknowledgment of the very able services rendered me by my stenographer, Lewis R. Waddey, and to call the attention of your Excellency, and through you to the General Assembly, that in my opinion he has reached that degree of efficiency as to authorize a salary commensurate wjth the servtices 'rendered. Stenographers and clerks in the building of like character and ability are receiving much larger salaries, none too much, however. In view of the fact that this office has no other help than that rendered by the stenographer, and of the constantly increasing duties of the office, the recognition of his services by an increase of salary will be approved by me and I know greatly appreciated by him.

27
OPINIONS
April 24, 1907. Governor los. M. Terrell, Atlanta, Ga.
DEAR SIR: I beg to acknowledge receipt of your -communication enclosing a letter addressing you written by Hon. Burton Smith, attorney at law. I note you ask if you should comply with Mr. Smith's request to permit his client to use your name as governor of this State in a contemplated action for damages against certain lessees of convicts for injuries his client sustained while serving a sentence in the penitentiary of this State. The statement of fact substantially is "that one Henry Roark was convicted of the offense of murder in Hall county and sentenced to the penitentiary for life. While Roark was serving his sentence at the Durham mines he was seriously injured by the falling of slate during the month of May, 1899, and in consequence of the injury r~ceived was confined to the hospital for many months, and afterwards, to wit, in September, 1905, his sentence was commuted and he was discharged."
The theory of the case is that the lessees are liable for this injury because they entered into an agreement with
the penitentiary guards, who were officers of the State,
whereby they induced the guard to surrender control of the person of Roark in violation of law, and that the wrongful and negligent act of .the lessees i'n working

28
Roark was the proximate cause of the i'njury complained of.
It is Mr. Smith's contention that his client is entitled to maintain a suit for damages against the lessee, predicating his action upon the idea that there has been a breach of the bond which the lessee gave when he leased the labor of the convict, the bond being "condrtional for the faithful payment of the hire and the proper observance of the contracts and such rules and regulations as may be adopted by the commission."
I deal only, of course, with the law side of the question. The plain, simple proposition therefore involved under the submission is whether or not as governor you should permit suit to be filed in your name for the use of Roark to enforce his rights, whatever they may be. If this man has been wrongfully injured by the lessee he does not need your name as governor of this State to enforce his remedy. He is of age and laboring now under no disability. There can be no doubt of his right so to do, for it has been expressly held in the case of The Dade Coal Co. vs. Hasslett, 83 Ga. 549, "\Vhile at common law one convicted of felony or treason forfeited all his rights of citizensht'p and was deemed to be civiliter mortuis, as these consequences do not in this State follow conviction of felony, an action for injuries received by one while a felon and in confinement is maintainable."
I take it, therefore, there can be no doubt of Roark's right to sue the lessee and recover damages if he can:

29
make good his accusation, and may do so without the use of your name.
II.
The remaining question involved in the submission is whether there has been a breach of the bond given by the lessee conditioqal as above set forth, and if so whether Roark may, with or without your name, sue upon that bond. It will be observed that the theory upon which Mr. Smithplaces his case charges that the officers of the obligee in the bond and t~e principal in the bond wrongfully conspired and did violate the law of thi~ State; the guard by surrendering the person of the convict and the lessee by accepting the control of the convict. That is to say, the obligor through its agents and in violation of law, caused this breach of the bond. It might be very gravely questioned if his theory was the truth, that the State could not recover on the bond where its officers in the line of duty brought about a breach of the bond. This, however, need not be decided for the reply is that the act of which he complains is not a condition of the bond. The rule of law for the construction of bonds of this character effecting the liability of sureties is one of strictissim juris. Sureties are held to be bound as far as they distinctly bind themsel,ves and their responsibility can not be extended by construction beyond the terms 0f their agreement. The surety on this bond had the right to presume that at least the State's officers would not tid in bringing about a breach. It might be con'ceded, however, that' the act of which he complains is a

30
. breach of the bond, and if that were true, it could not avail his client. The parties to the bond are the State on the one hand and on tqe other the principal and his sureties. If the State could maintain its suit and recover damages the money would go to the State. That this bond was taken for the benefit of the State there can be no doubt, and it is equally clear that you are not authorized to lend the State's name to the enforcement of merely personal and private rights. I have, therefore, after much reflection, reached the conclusion that Roark's right of action can not be predicated on the breach of the bond, and, secondly, he does not need your name to enforce his remedy for the tort. For these reasons, therefore, you should decline to per- . mit the use of the State's name to enforce, at best, but a personal and private remedy. Yours very truly, JNo. C. HART,. Attorney-General.
May 30, 1907. Governor Joseph M. Terrell, State Capitol.
DEAR SIR : I am in receipt of your recent communication and request for an official opinion as to whether or not the State is liable to the solicitor-general of the Rome circuit and to the officers of court of Chattooga county for fees and costs incurred in the prosecution of certain named convicts i'n the county of Chattooga for the crime of "larceny from the house," committed_ by them and of which they were convicted.

31
The officers aforesaid claim that they are entitled to their costs by virtue of I I 74 of the Criminal Code, which reads as follows:
"The expenses of all trials for escapes from the penitentiary or attempts to escape and for all other crimes committed by penitentiary convicts while confined in the penitentiary, shall be paid by the State, upon a bill of costs certified by the judge trying the case."
J'he convicts were doing sentence in Dade county, the work being in the mines. They escaped from the mines and in fleeing through the county of Chattooga committed the offense of larceny from the house, for which they were tried and .for which tri'al the costs in question accrued. The question is, under this state of facts is the State bound under the section of the Code to pay this costs. I think not. The liability of the State for costs is limited to "crimes committed by penitentiary convicts while confined in the penitentiary." The facts above recited make it apparent that this is not a crime committed by convicts while confined in the penitentiary. It is a crime committed by a convict after he had escaped from confinement. For such crimes the State has not obligated itself to pay the cost of conviction. That this is the corroct construction of the statute there can be no doubt in the light of its history. It was enacted at a time when Georgia maintained a penitentiary in fact and which had a local, definite and fixed place, to wit, Milledgeville. The reason for the law no doubt was that it .was unfair to the county of Baldwin, where the penitentiary was located, to impose upon that county the

32
cost of the trial of persons in the penitentiary sent there from all other portions of the State and for crimes committed within the walls of the penitentiary. The statute was for the relief of the county of Baldwin and not for the officers of court. Under our present migratory penitentiary it might be questioned very seriously its application at all. However, let that be as it may, the' present case certainly does not fall within the letter nor even the spirit of the statute. The limitation in the Act is that the State is liable for this cost for crimes committed by convicts while confined in the penitentiary. The officers of court, therefore, must be paid as they are in cases of other insolvent costs, out of the fines and forfeiture fund. The State is not liable for this cost, and hence you would not be authorized to draw your warrant on, the Treasury of this State in favor of the officers of court for this sum.
Yours very truly,
JNO. c. HART.
'Attorney-General.
July 30, 1907. Governor Joseph M. Terrell, State Capitol.
DEAR SIR: I am in receipt of your letter of even date containing inquiry from Hon. Logan Bleckley, clerk of the Court of Appeals asking, under the statement of fact therein submitted, to whom should he, as clerk, issue a certificate of service and collect and remit the fees as solicitor representing the State in the case of Sandy Sheffield vs. The State. It appears from the submission of fc:ct that T. W. Mattox, lisq., filed a brief on December

33
,31, 19o6, "as solicitor of said city court of Moultrie," and that on January 26 and 28, 1907, W. F. Way, Esq., filed briefs "as the solicitor of the city court of Moultrie."
While the submission of fact is silent, yet I have not :assumed that both of these lawyers now claim to be the solicitor of the city court of Moultrie, and that perhaps Mr. Mattox 'went out of office on Dect>mber 31, 1906, :and Mr. Way has been elected and duly commissioned as his successor. If this assumption is correct the certificate shouldbe issued to Mr. Way as the solicitor now in c~mmission. In other words, my opinion is that the solicitor in commission at the time of the trial of the -case is the person to whom the fees should be paid.
Yours very truly,
c. }NO. HART,
Attorney-General.
November 22, 1907. Covernor Hoke. Smith, Atlanta, Ga.
DEAR SIR: Referring to your letter of November 22, and request for my official opinion as to whether or not T. E. Moon, a member of the police force of the city of Columbus, is entitled to the reward offered by Governor 'Terrell on March 13, 1907, for the apprehension and delivery to the sheriff of Muscogee county of one Bud 'Thomas.
It appears under the statement of fact submitted that on April 15, 1907, Moon arrested Thomas and delivered him

34

to the sheriff of Muscogee county and that Thomas was;

thereafter tried and convicted of the offense of murder.

Moon perfected this arrest in the regular discharge of

his duty as an officer. , The question is, being an officer-

charged with the duty of making arrests of felons, "is

he entitled to the reward?"

It appears that the offense was committed in Muscogee

county within the limits of the city of Columbus, of.

which Moon was an officer, to wit, a member of the po-

lice force. Moon is not entitled to the reward. The

statute, 88r, volume 3, of the criminal Code,_

which authorizes the Governor to offer rew.ards

for the arrest of felons, provtdes in terms that "no such

reward shall be paid to any officer who shall arrest such

person in the regular discharge of his duty .

,.

It would seem, therefore, that not only the law but public

policy is against the payment of rewards to an officer

for the arrest of felons where it is the duty of such officer

to make arrests.

Yours very truly,

]No. C. HART,

Attorney-General.

August 17, 1907 Governor Hoke Smith, Atlanta., Ga.
DEAR SIR: The Constitution of this State, under article 5, section 1, paragraph 13, (Code 5816), after conferring power upon the governor to issue writs of' election, to fill vacancies that may happen in the senate

35
and house of representatives, further provides, "He shaH have power to convoke the General Assembly on extraordinary occasions, but no law shall be enacted at called sessions of the General As.sembly except such as shall relate to the object stated in his proclamation convening. them."
Two questions are raised. First, may the Governor . within his discr~tion convoke an extraordinary session;. secondly, if he convokes the General Assembly in extraordinary session, may he do so stating in his proclamation it is to finish certain specified pending legislation, and may such legislation be treated as unfinished business? In other words, should a bill be on its passage at the time of the expiration of the first session and if the General Assembly is convoked to enact into law this bill, will it be necessary to reintroduce the bill requir~ug ..it~, reading three separate clays in each branch of the General Assembly, or may the btU be treated as unfinished busi- ness and passed or acted upon as such?
In answer to the first question, it would hardly admit of doubt in my opinion that the governor under this provision alone judges of the reasons necessary to call the General Assembly in extraordinary session. It is not for the courts, or even the General Assembly to question the authority. If the governor should abuse this prerogative he would be answerable only in another forum. The legislature could not question the right of the governor to convoke, but it would be its duty either to pass or reject the proposed 1a.w or laws specified in the proclamation.' Nor could the courts, where a law had been

36

passed in pursuance of hi's proclamation, declare tho

same unconstitutional for no. other reason than that its

enactment was not of such importance as to authorize

the call of an extra session.

I am of the opinion, where the legislature has been con-

voked by the Governor in extraordinary .session for the

purpose of enacting a bill into law, it was considering

a{the time of the expiration of the first session by con

stitutional limitation, that the General Assembly in extra

session could not treat such a bill as unfinished busi'nes"

and it would be necessary to again introduce it and treat

it is an original proposition. In other words it must be

treated as legislation de novo. The power conferred up-

on the governor under the provision in question provides

that ''no law shall be enacted at called sessions of the

General Assembly except such as shall relate to the ob-

ject stated in h'is proclamation convening them." A law,

therefore, where; it appeared on the journals of the House

had not been read .but one time at the extra session, be-

fore put upon its' passage, for that reason would be open

to, and would be declared by the courts, as unconstitu-

tional. The provision in .question never contemplated that power should be conferr~d upon the Gove~nor to

prolong a legislative session. If he had such power it

would follow, of course, that the extra session would be

:treated as a mere. continuation of the old one, but the

power

given

the

Gov..e.rnor

is

not

to

prolong

but

to

convoke .

the legislature in extraordinary session for reasons sat-

isfactory to himself.

37
In the light of the history of our own Constitution, there can be no doubt of the correctness of this conclusion. The Constitution of 1877 originally provided for the prolongation of a legislative session. See 5049 of the Code of 1882. It was there provided that no session of the legislature shall continue longer than forty days unless by a two~thir,ds vote of the whole number of each house. This provision of the Constitution was by amendment changed and it is no longer in the power of the General Assembly to prolong its session; the law now is, that the General Assembly shall not continue in session longer than fifty days, unless an impeachment trial is pending and then it inay be prolonged until the completion of the trial. The Constitution of the State, therefore now contemplates that the General Assernbly shall finish its business within fifty days, and while the governor has the power to convoke it on extraordinary occasions, when he exercises that power and spocifies the legislation in his proclamation which he wishes acted upon, the session is a new one and as to such matters the constitutional requirements as to the enactq-tent of law applies.
In reaching this conclusion I have not overlooked the Act of the General Assembly providing that unfinished business of the first session shall go over to the. next ses,. sion as unfinished business and occupy the same place on the calendar of the second session as such matters occupied at the first session. See 307 of the Political Code. That provision is not in ~onflict with the fore,. going, but on the contrary, it serves to emphasize the

38
point above made. The Act clearly recognizes that it was necessary that the General Assembly should pass a. law preserving the status. of its business from one session to another where they met in pursuance of a fixed law. It has ho application to a session called by the governor on extraordinary occasions, and if it be necessary for the general assembly to pass an Act preserving the status of its old business where meetings are. held in conformity with the constitutional provision, it would seem to follow, a kindred statute would be necessary to preserve the status of the busin,ess where the governor exercises his prerogative to call an "extraordinary" session. The a,rgument that this entails loss of time and is involved in. great expease, would have been appropriate as reasons against making the law, but can not be urged as reasons for violating the law.
I think, .therefore, first, the governor is the sole judge of the reasons for convoking an "extraordinary session" ; and, secondly, when it is called, it is in fact an extra session, and not a prolongation of the first.
Very respectfully, JNo. C. HART, Attorney-General.
January 24, I 9o8. Governor Hoke Smith, Atlanta, Ga.
DEAR SIR: I am in receipt of a letter addressed by Hon. Wrp~ A. Wright to you as governor in which he
enClosed a letter from J. P. Ritchie, tax collector of Fan-
nin county, which letter makes the suggestion that by

39
Teason of the uncertainty of the State line between Tennessee and Georgia quite a lot of property is being lost to taxation by this State. The inquiry is, how may this line be definitely established? These communications, I assume, have been sent to me for investigation and report.
The boundary could be properly established only after proper action on the part of the legislatures of the respective States providing for a survey and location thereof. I would suggest that the matter should be called to the .attention of the General Assembly when it convenes.
Yours very truly,
}NO. c. HART,
Attorney-General.
January 7, 19o8. Governor Hoke Smith, Atlanta, Ga.
DEAR SIR: Replying to the inquiry contained in your letter of the 1st instant, "Is a member of the legislature eligible to appointment as trustee of the Eleventh District Agricultural school ?"
The question of the eligibility of such member arises under article 3, section 4, paragraph 7 of the Constitution, (Code 5754), so much of which as is necessary for this inquiry being as follows: "Nor shall any senator or representative after qualification as such be elected by the General. Assembly or appointed by the Governor, either with or without .the advice and consent of the senate to any office or appointment having any compen-

40
sation or emolument annexed thereto during the time for which he shall have been elected."
The question turns upon whether or not this is an office within the meaning of the constitutional provision above quoted. "An office is a public station or employment conferred by the appointment of govemn:ent; the term embraces the ideas of tenure, duration, emolument and duties." 6 Wa'll. 385.
It would seem that a member of a board of trustees created by the legislature, having public duties, emolument, duration of term and employment, all prescribed and fixed by public laws, constitutes a public office. As was said in the 33 Ga. 322, "Where an individual has been appointed or elected in a manner prescribed by law, has a designation or title given him by law and exercises functions concerning the public assigned to him by law, he must be regarded as a public officer, it can make no difference whether he be commissioned by the executive or not."
I cite from an opinion rendered by Hon. Wm. A Little, while Attorney-General, and rendered upon the re-
quest of Hon. Wm. J. N6rthen, then governor, October
13, I89I, the following apt illustrations of what constitutes a public office; 36 Miss. 273; .46 N. Y. 381; 7 How. 248; 20 Wend. 595 The question there under consideration was whether a member of the legislature could be appointed on a commission to revise, codify and arinotate the criminal laws of the State, with reference to decisions of the Federal and State Supreme Courts, and other sections of the Code bearing upon the same. The

Attorney-General was of the opinion that a member of the Gemeral Assembly would not be eligible to appointment under the constitutional provision above quoted.
I am therefore of the opinion that a member of the kgislature would not be eligible to this appointment, assuming as I am informed, it is the practice of the trustees to pay themselves a per diem and expenses while in attendance upon their duties.
Yours very truly,
}NO. c. HART,
Attorney-General.

October 29, I907. Governor Hoke Smith, Atlanta, Ga.

DEAR SIR : In reply to the inquiry made of you by the

Harris City church through its officers ard referred by

you to this office for an official opinion, viz., "whether

afer January I, Igo8, the minister or deacons of the

church may make, buy or use sacramental wines in Geor-

gia without violating the laws of the State," I -beg to

say:

I. The officers could not make wine in Georgia for any

purpose without violating the law.

2. The officers could not buy wines in Georgia without

at least the seller violating the law.

3 The officers may use the wine previously made or

bought outside of the State of Goorgia in the administra-

tion of the sacrament without violating the law.

The language of the prohibition Act is "That from and:

after the first day of January next

it shaU

42
not be lawful for any person within the limits of this State, to sell or barter for valuable consideration, either directly or indirectly, or give away to induce trade at any place of business, or keep or furnish at any other public places or manufacture, or keep on hand at their place of business, any alcoholic, spirituous, malt or intoxicating liquors or intoxicating bitters or other drinks which, if drunk to excess, will produce intoxication, and any person so offending shall be guilty of a misdemeanor, and shall be punished as prescribed in section 1039 of the Penal Code of Georgia."
While this language is broad and sweeping it ought not to be held as applying to the church, for it must not be assumed that the Legislature intended to interfere with persons in the exercise of the iight to worship God as they see fit. The law should be construed in the light of the Constitution as guaranteed in the Bill of Rights, "All men have the natural and inalienable right to worship God, each according to the dictates of his own conscience, and no human authority should in any case control or interfere with such right of conscience."
I am therefore. of the opinion tha.t the Legislature had no such purpose in the passage of this Act, and if it was their purpose this provision is inoperative and unconstitutional as applied to sacrament of the Lord's Supper.
Yours very truly,
}NO. c. HART,
Attorney-General.

December I8, I907.

Governor Hoke Smith, Atlanta., Ga.

DEAR SIR: I beg to acknowledge letter of S. M. Clyatt addressing you and bearing date December I 3, there-in making inquiry whether "appointment to your staff

would disqualify him to hold office as representative or

.senator," and referred by you to this office for reply.

In this same letter the further inquiry is raised, "is a

judge of a city court disqualified to hold either of the

.above mentioned offices? "

Both questions seem to be covered by Code section
'5754, article 3, section 4, paragraph 7 of the Const_itution,
"'No person holding a military commission or other ap-

pointment or office having any emolument or compensa-

tion annexed thereto under this State or the United

:States or either of them, except justices of the peace

-and officers of the militia.... shall have a seat in either -house." I assume that a member of the Governor's staff

1..; an officer of the militia of this State and being such he -is expressly excepted from the inhibition.

There is another paragraph of the Constitution which should be construed in pari materia _with the section just

quoted with reference to the eligibility of persons to

membership in the General Assembly; I refer to article

3, section 7, paragraph I, (Code section 5764) "Each

house shall be the judge of the election, return and dis-

qualifications of its members

"

Yours very truly,

]No. C. HART,

Attorney-General.

44
November 21, 1907. Governor Hoke Smith, Atla.nta, Ga.
DEAR SIR : Replying to your communication of the 19th inst., wherein you ask my official construction o.f sections I718 and I720 of volume I of the Code, "relative to the time of making report by the State Geologist to the Advisory Board," I beg to say:
The two sections are confusing, perhaps conflicti'ng. I 7 I8 provides "It shall be the duty of the St~te Geologist to make report to the Advisory Board once every three months, to wit, the second Wednesdays in March,. June, September and December of each year." Se~~ion I720 requires that "The State Geologist shall make to the Advisory Board monthry statements under oath
" etc. Section 1720 is codified from the Act approved Novem-
ber 12, 1889. Section I7I8 is the later Act and is codi-
fied from the Act apProved December 17 1894. The codifiers put these two provisions in the Code under the respective sections referred to and the question is, which one is the law, if they be in conflict?
I am of the opinion that the Act approved in 1894, be. ing the later Act, codified as section 1718 is the law with
reference to the date and time for ~aking the report. This is the contemporaneous construction givert the Act by the State Board of Geology and followed smce its passage in 1894. The State Geologist in making his report quarterly should of course embrace all of his expenditures incurred during each of the three pre-

45
ceding months, definitely fixing the item and the date, .and verifying the account by his oath. In thi's way really both sections are substantially given effect.
Yours very truly, ]NO. C. HART, Attorney-General.
August 22, 1907. Governor Hoke Smith, State Capitol.
DEAR SIR: I beg to confirm the verbal opinion given you this morning in reply to your inquiry as to the ~'length of time within which the Governor shall sign bi1ls passed by the legislature after its adjournment," my opinion being, as you will recall, that the limit of time is "five days.
The Supreme Court of Georgia in the case of Soloman vs. Commissioners, reported in the 4.1 Ga. p. 157, in considering this question, held, "If this was an original question independent of any const~uction heretofore given by the Executive Department of the State government this -court would be inclined to hold that the Governor, under the Constitution, could not approve and sign any bill after the adjournment of the General Assembly; but upon looking into the past history of our legislation we nnd that it has been the practice for many years for the -Governor to take five days after the adjournment of the General .t\ssembly for the revision of bills and to sign .them withinthat time, hut not after; that a large number of the most important Acts now upon the statute

46
books of the State have been so approved and signed. This usage and practice of the Executive Department of the State government should not now be disturbed or set aside." This authority seems to be directly in point and it would appear therefore that the Governor has five days after the adjournment of the General Assembly and not longer within which to sign bills.
Very respectfully,
}NO. c. HART,
Attorney-General.
August 5, 1907. Governor Hoke Smith, State Capitol.
DEAR SIR: I am in receipt of your letter of even date with a letter attached signed by Messrs. T. G. Hudson, Sam'l C. Dunlap and Martin Calvin. The statement of facts as I understand from the two letters is substantially as follows; the gentlemen above named as commissioners, with others representing .the State of Georgia, were appointed under a resolution of the General Assembly of Georgia approved August 16, 1906, entitled "A resolution to appropriate the sum of $30,000 to the Department of Agriculture of this State to be expended for the further support and maintenance of said Department."
This resolution contemplated that the money thus appropriated should be expended in collecting and permanently preserving minerals, precious stones, specimens of the field and forest, mines, orchards and vineyards of this State, illustrating the agricultural, horticultural, geological and educational departments of the State, an~ when

47
so collected to become a part of the State Museum. Authority was then granted by the Legislature when, in the opinion of the Governor and Commissioner of Agriculture to do so, would be to the inte-rest of the State of Georgia, to carry this exhibit to the Jamestown Ter-Centennial Exposition at Hampton Roads, Virginia. The reso lution further provided that the commissioners were to take charge of this exhibit, care for the same while at Jamestown, seeing that it was properly housed and cared for during the period of the exposition. The resolution further provides that the expense incurred in carrying out the purpose of this resolution when approved by the Governor and Commissioner of Agriculture, should be paid by warrants drawn by the Governor on the Treasury of the State out of funds not otherwise appropriated.
In pursuance of this resolution, as I understand the fact, the commissioners have contracted in the name of Georgia for the erection of a building on the exposition grounds, which has been completed by the contractor, accepted by the commissioners, but which has been paid for only in part, and that the contractor and the architect are now threatening to take out a lien and to institute immediate procedure against the property now in Jamestown.
I note that you are anxious, if it may be legally done, t( pay for this building out of the appropriation heretofore made "in order to protect the good name of the State from the discredit which would be cast upon it from such a si.tuation." The question propounded, therefore, is, whether the commissioners are authorized to use in part the appropriation made by the General Assembly to dis-

48
~barge this indebtedness. The legal question, therefore, is, may the commissioners save the present building and the credit of the State by using the money in part appropriated to the payment of this obligation.
If the matter was an original proposition and involved the question whether the General Assembly could make :an appropriation of money to be paid out of the Treasury of this State for the purpose of erecting a building at Jamestown, there could be but one answer, that the Legislature has no such authority. I do not understand that that question is now involved. The Legislature has heretofore appropriated the money, the purpose J?eing to enable the State to make a display of its resources at Jamestown and empowered the commission in charge to do certain things which necessarily involved the expenditure of this money. Upon that authority this debt has been contracted and to repudiate it now on a technicality would subject the State to the gravest censure. I do not think. therefore, that it is the time nor the place to look with microscopic vision for constitutional objections to the payment of this honest debt.. It is a debt contracted by our representatives for the benefit of the State of Georgia :and the State in good morals can not afford to repudiate the debt. If it be conceded, t~e.refore, that the resolution approved August 16, r9Q6, is constitutional, the commissioners have authority to use so much of the money appropriated as is necessary to pay off the debt now due the contractors for erecting the bui!ding.
.Y~ours very truly,
JNd. c. HART,
Attorney-General.

49
July 8, I907. Governor Hoke Smith) Atlanta,) Ga.
DEAR SIR: I am in receipt of your letter of July 5, and note your request for my interpretation of article 7, section I4, paragraph I of the Constitution of I877 (Code section 590I), relative to the duty of the Treasurer to retain $Ioo,ooo now in the Treasury anticipating its use to pay off and retire the bonds of the State maturing on January I, I908. Your inquiry is "Does the Constitution require the Treasurer at this time to keep $Ioo,ooo on hand for the payme-nt not due until nextJanuary?" Your comment is "Such a course would put the State in the attitude of paying interest on $Ioo,ooo with $Ioo,ooo lying idle in the Treasury."
With the question of whether or not this policy is good financiering I, of course, do not deal, and confine my opinion strictly to the interpretation of the Constitution and the laws in pursuance thereof relative to the provision in question.
I think it is quite clear under the Constitution that it is the policy of the State to require that the necessary money to pay off and retire the bonds of the State should be set aside a year in advance, holding it as a sinking fund with the injunction that it "shall be applied to no other purpose whatever." This appears to be the legislative construction given this provision since the adoption of the Constitution of I877. Every General Assembly,_ so far as I am advised, has passed an Act authorizing the levy of a tax to pay off and retire the bonds of this State in conformity with the constt:tutional provision we are:

50

discussing. The last Act on the subject is one approved

August 22, 1905 (see Acts of the General Assembly

1905, page 44). This is but a repetition of prior Acts.

The money in the Treasury to which you refer was raised

by virtue of the Act of August 22, 1905, and if it be con-

ceded that the constitutional provision is obscure, the leg-

islative interpretation thereof is manifest in this particu-

lar Act and relating to this particular fund. I quote frqm

section 3 of that Act, "That the said amount so raised in

the year 1906 shall be applied to paying off and retiring

the valid bonds of this State maturing on January 1,

19Q8." In this same Act authorizing the collection of

this tax, following the language of the Constitution, it ts

provided that when this tax is raised it shall go into the

Treasury and "shall be applied to no other purpose what-

ever."

It is manifest, therefore, that this fund raised in pur-

suance of this constitutional provision and by the author-

ity of the Act approved August 22, 1905, can not be used

by the Treasurer for any other purpose than to pay off

and retire the valid bonds of this State.

Yours very truly,

]NO. c. HAR'l',

Attorney-General.

51
lN RE APPLICATION OF THE DELAWARE FIRE INSURANCE COMPANY TO WITHDRAW ITS DEPOSIT OF BONDS FROM THE STAT'E TREASURY.
The Delaware Fire Insurance Company, a foreign corporation, in pursuance of the laws of this State, deposited with the State Treasurer bonds, as a condition precedent to doing business in this State. The company now desires to withdraw its deposit, having ceased to do business in this State. Notice of its intention to withdraw bas been duly published and it has established as a fact that it has satisfied all losses and the claims of policy holders on property of the citizens of this State.
The Pennsylvania Insurance Company, also a foreign -corporation, has filed its objection with the Insurance Commissioner, insisting that there is an unsatisfied policy .of reinsurance issued by the Delaware Company_ to the said Pennsylvania Insurance Company on property situ:ated in the State of Louisiana, The Delaware Insurance Company denies the existence of such policy of r.einsur:ance, and the matter is now in controversy between the two companies.
The question is, should the Treasurer of this State deliver over upon the request of the Delaware Company, the bonds in question deposited by it, or retain the same awaiting the determination of the controversy between the two insurance companies. The duty of the Treasurer is plain, viz., to retain the deposit if the insistance of the Pennsylvania company is the law that the deposit was

52
intended to inure to the benefit of a reinsurance contract between foreign companies and upon property not situated in this State. If, on the other hand, the law did not contemplate the deposit for such use, but for the benefit of policy holders of this State, and on propert:v located in this State, the Delaware company having complied with these conditions upon which the deposit is to be withdrawn, the duty of the Treasurer is equally plain, for the "faith of the State is pledged that they (the securities} shall be returned to the partios entitled to receive them.
It is the insistence of the Pennsylvania company that the purpose of the law is to protect the business of insurance transacted in this State and that all contracts of insurance made here are so protected in case of loss, regardless of the citizenship of the owner or the situs of the property insured. The argument is, the deposit is a protoction to the business of insurance written in this State, although the property and the owner thereof may be in another State.
The insistence of the Delaware company is that the de-posit is made for the protection of the citizens of this State and on policies covering property located in this State. That is to say, the Act of 1887, regulating insurance in this State contemplated in case of losses, that the deposit should enure to the benefit of citizens of this State on property located in this State. I think there can be nr) doubt that this latter construction is the proper and legal one. Section 2041 of the Code, providing for the withdrawal of this deposit is as follows:
"When any company, having made the deposit requireu

53
by this article, has existing policies on property of citizens of this State on which no losses have accrued, and the company wishes to withdraw its deposits, before being allowed to do so, said company shall take up and satisfy said policies, and give notice of its intention to withdraw from the State, and of the fact that it has sati~fied all losses and the claims of policy holders above designated, which notice shall be published once a week for two months in a newspaper to be designated by the. Insurance Commissioner of this State, and at the expense of sa1d company. Any claims of the citizens of this State for losses, or on existing policies where no losses have occurred, must be fully settled before said deposits shall be withdrawn."
It is my opinion, in the light of this section, that the deposit is made for the protection of the citizens of this State, and it appearing that the Delaware Company ceased to do business three years ago in this State, and having satisfied the policy holders of this State that the Delaware Company is now entitled to its securities and the Treasurer will accordingly surrender the same.
Very respectfully, ]NO. C. HART} Attorney-General.

54
June 24, 1907. Hon. Wm. A. Wright, Comptroller-General, Atlanta, Ga.
DEAR SIR: I am in receipt of your letter of the fifth inst., addressing me as follows: "Herewith I refer to you a letter from Messrs. Dean & Dean, general counseL for the State Mutual Life Insurance Company, of Rome, Georgia, with the documents described therein. Please examine the letter and documents and advise me whether in your opinion, there is anything involved in the plan that will, f-rom a legal standpoint, affect the solvency of said insurance company, or that should be deemed fraudulent." The letter of Messrs. Dean & Dean, to which you refer, is, after addressing you as Insurance Commissioner, as follows: "After the informal discussion had with you and the Attorney-General to-day with reference to the plan of handling the agency business of the State Mutual Life Insurance Company, of Rome, Georgia, through the Cooperative Agency Company, we beg to submit herewith for your consideration the following documents, first, copy of the charter of the Cooperative Agency Company, second, copy of the contract between the State Mutual Life Insurance Company and the Agency Company, third, copy of application to the Agency Company for the purchase of insurance policies; fourth, copy application to the Agency Company for the purchase of stock in the Agency Company without relation to the purchase of insuranc.e policies; fifth, copy certificate of stock of Agency Company issued when stock is sold in connection with insurance. When stock is sold without

55
insurance the words (issued in pursuance of a written application which is made a part of the contract between the company and the holder of this certificate), are omited from the certificate of stock. It is the desire of the State Mutual Life Insurance Company that all of its affairs shall be conducted for the interest of its policy holders and inasmuch as your department i_s charged with the
supervision of. an matters affecting the solvency and fair
dealing of insurance companies, we request that you examine the plan disclosed by the documents herewith submitted, and advise whether, in your opinion, there is anything involved in the plan that wi'll, from a legal standpoint, affect the solvency of the insurance company, or that should be deemed fraudulent." Signed Dean & Dean, general counsel State Mutual Life Insurance Company.
Replying to the specific questions raised by the joint ltters, I assume that you have taken jurisdiction of the matter in controversy by virtue of the Act of 1887 and the amendments thereto, and especially under the provisions of that Act which authorizes and requires of you, as Insurance Commissioner, to examine into the affairs of an insurance company and if in your opinion the same is insolvent or fraudulently conducted, or that its assets are not sufficient for carrying on business, to communicate the fact to the Attorney-General, whose duty it becomes to take such steps as are provided by law to correct the evil complained of, or to show cause why their business should not be closed. I do not understand from the question submitted that you suspect the present in-

56
solvency of the ~ompany, and that you have confined your inquiry to the sole question whether "there is anything involved in the plan (of operation of this company) that will, from a legal standpoint affect the solvency of the insurance company, or that should be deemed fraudulent." This necessitates, therefore, first, an analysis and a brief discussion of the plan.
The State Mutual Life Insurance Company of Rome, Georgia, is a corporation created under the laws of this State for the purpose of doing a life insurance business. The Cooperative Agency Company is a corporation created by the superior court of Floyd county, the declared object of the association to be for "pecuniary gain and tl;e particular business proposed to be carried on by the <:o'rporation is to act as agent and representative of fire, life, accident, guaranty and marine insurance companies in matters pertaining to negotiating and procuring contracts of insurance and applications therefor; delivering policies and collecting premiums thereon, adjusting claims based on insurance policies and contracts relating thereto; to negotiate, make, sell and transfer contracts pertaining to the business of life insurance : employing agents for soliciting applications and negotiating contracts of insurance; to borrow and loan money and negotiate loans in connection with the business of it,surance; to buy, own and sell stock in other corporations; to buy, own and sell real and personal property as may be needful in its business; to mortgage or otherwise incumber such 'property as the corporation may own." The capital stock of the Cooperative Agency

b7
Company is five millions of dollars, cliviclecl into shares of twenty dollars par value. Power is conferred upon the majority vote of the stockholders to issue from time to time additional capital stock limited not to exceed ten raillions of dollars, "the same to be paid for as the corporation by its governing body may agree."
The State Mutual Life Insurance Company of Rome, Georgia, hereinafter called the Insurance Company, on . the 28th clay of February 1907, entered into a contract with this Cooperative Agency Company, hereinafter called the Agency Company, for and in consideration of the mutual agreements and covenants therein expressed substantially as follows :
1. The Insurance Company appointed the Agency Company its general agent for the purpose of procuring ;applications for insurance contracts on blanks to be furnished by the Insurance Company, empowering the Agency Company to negotiate contracts with other agents :subject to the qpproval of the Insurance Company and to -collect renewal premiums on the lives of individuals for the Insurance Company "in any and all of the States of the United States wherein said Insurance Company may transact business."
2. As full compensation for thes-e services of the Agen-cy Company the Insurance Company allows a commission 'Bf ninety per cent. on the first years premiums and ten per cent. renewal commissions. Renewal commissions. however, are not to be paid unless there is written in the territory affected insurance as follows, "during the first twelve months from this elate twenty-five millions of

58
dollars; during the second twelve months, forty millionso of dollars ; during the third twelve months, fifty millions. of dollars; during the fourth twelve months sixty millions of dollars; during the fifth twelve months, seventyfive millions of dollars; during the sixth twelve months eighty millions of dollars; and during the seventh twelvemonths, one hundred millions of dollars; and during each and every twelve months thereafter one hundred millions of dollars."
3 The Agency Company is to be responsible to the Insurance Company for the fidelity and honesty of its representatives.
4. The Agency Company is to pay all commissions on premiums under the contracts heretofore made by the Insurance Company, advertising expenses, all office expenses incident to the conduct of the insurance business, except the office maintained at Rome, all sums of money clue by the Insurance Company or to become due under any prior or supplementary contracts. The Insurance Company is to pay the license tax, but all other taxes, State, county or municipal or fees required of the Insurance Company, are to be paid by the Agency Company. The decisions of the Insurance Company is to be conclusive upon the Agency Company as to the dates and amounts of payments..
S The Insurance Company reserves the right to make contracts with agents for soliciting applications for insurance and the Agency Company binds itself to carry out the contract. The expenses incident to making such cvntracts are to be paid by the Agency Company.

59
6. As a considerati'on for this contract the Agency Company obligates itself to issue in blank form certificates for its capital stock to the aggregate amount of $9,995,ooo.oo the Insurance Company to designate the denominations. The Insurance Company is to hold these certificates, whj'ch are not to be sold for less than par, net to the Insurance Company, the Insurance Company to prescribe the terms and conditions, subject to any after agreement between the Insurance Company and the Agency Company. This Agency stock is to be sold and after paying a commission of twenty per cent. to an agent for selling it the remaining eighty per cent. of the money received from the sale of the Agency stock is to go into the treasury of the Insurance Company and becomes the property and assets of the Insurance Company. The Insurance Company reserves the right to vote the stock unsold at the meetings of the stockholders of the Agency Company. The Agency Company obligates itself to sell enough of this stock annually as will produce the sum oi two hundred and fifty thousand dollars net to the Insurance Company. The Insurance Company also retains the right to sell this Agency stock. The Agency Company binds itself never to sue a policy holder in the Insurance Company "for any causes growing out of the business transacted under this contract," "unless such action shall have been approved in writing by th6 president of the Insurance Company." Should the Insurance Company be sued because of the act of the Agency Company by any one the Agency Company agrees to pay all costs of the suit.

60
7 It is further provided that any information obtained by the officers of the Agency Company concerning any part of the business of the Insurance Company shall be .considered confidential information "and at no time during the continuance of this contract, or after its termination or cancellation shall such information be divulged to any other person in any manner."
I have quoted thus fully from this contract because it powerfully, and I think conclusively, argues the correctness of the first conclusion that I have reached, viz., that the Insurance Company and the Agency Company, while purporting to be separate corporations, are in fact but one. The scheme involved is that the Insurance Company operating through an Agency Company capitalizes the expense account of conducting its insurance business, thus converting what might be called a liability or fixed charges into an asset of the possible value of ten millions of dollars. Answering, therefore, your first inquiry, "Does this plan involve, from a legal standpoint, the solvency of the Insurance Company." and assuming that such a plan would meet the public confidence, there could, of course, be but one answer, that it could not affect the solvency of the Insurance Company. If people can be found who are willing to buy the stock of the Agency Company, paying therefor face value and the proceeds of such sale to be turned over and to go into the treasury of the Insurance Company as the property of the Insurance Company, the financial effect on the Insurance Company is to enrich and strengthen it. Under the contract the Insurance Company takes the money arising

61
from the sale of the Agency stock without any liability to the stockholders of the Agency Company and with the express understanding that the money thus paid for stock in the Agency Company is to become the property and assets of policyholders in the Insurance Company. As. stated above, the scheme is nothing more nor less than a conversion by the Insurance Company of what is ordinanly a liability into an asset. Whether this may be done or not is perhaps not under the submission properly in shape for my opinion, but if it is done it marks a feat in financiering yet, I make bold to state, without a parallel. If it be possible to do this the effect of it is to enrich the. Insurance Company, approximately ten millions Qf dollars, i. e., such is the posJlbility of this plan. Whether it is. possible to find persons thus willing to take stock in an agency company, paying money therefor, knowing that it is to be turned over to an insurance company in which they have no interest, I do not express an opinion, for your duties do not concern you with the affairs of the Agency Company. You are limited under the law to deal only with the Insurance Company. The answer,.
therefore, to the first inquiry is, that the plan, (if it be
c<:,nceded capable of execution) would not imperil the solvency of the Insurance Company, but would greatly enrich it.
2. Ought the plan to be deemed fraudulent? Whether or not the plan should be classed as fraudulent must depend very largely, if not entirely, in the representations. made to induce persons to purchase Agency Stock. Fraud consists in deception practiced, in order to induce another

62
to part with property, or in a suppression of the truth, -or in the asserti'on of what is false, any kind of artifice employed by one person to deceive another. The term, however, admits of no positive definition and can not be controlled in its application by fixed rules. A person desirous of taking stock in the Agency Company, knowing that the money to be paid therefor was to go into the Insurance. Company, and thus as far as he is concerned. parts forever with his money, perhaps should not complain at the transaction; if, on the other hand, he is led to believe that his mone.y goes into a company in which he is interested and under this erroneous conclusion parts with his mone.y, the transaction would be fraudulent.
The plan proposed is unique for selling agency stock t( enure to the benefit of the insurance company. Thi3 ccntract between the agency company and the insurance 'COmpany so far as the insurance company is concerned is "ultra vires." In other words, the contract is an illegal one, as not within the scope of the charter powe.rs of the insurance company. It is neither lawful, safe, nor prudent for insurance companies to enter into speculative sche.mes for pecuniary gain to its policyholders. Insurance companies and speculative schemes should not keep company, much le.ss, therefore, should one become the father of the othe.r. Because of the uncertainty of life springs the necessity for life insurance. This is the fundamental truth upon which rests the business of life insurance. No insurance company should do an insurance business exce.pt in a way to inspire the belief in the living of its absolute ability to carry out its contract in

63
the event of death. The business of life insurance is "'life insurance." This should be absolute and certain. This wellnigh universal and beneficent line of business can not itself or through an agency engage in a scheme that appeals to a credulous public as offering a possibility to get rich while living. Insurance companies are not schemes to enrich the living but are wt'se provisions to take the place of the bread-winner for the dependent family when he is dead.
Manifestly 'the insurance company and the agency company can not both under this contract indefinitely survtve. Neither of them are creators of wealth, yet they are, under this scheme, expected to feed upon each other and the argument is, each will grow rich. This is impossible. In time one must consume the other. The scheme might be floated for awhile, appealing to the greed and credulity of the public, but its voyage must be short-lived, for it could not stand the test of time, nor survive the stress of financial storm. Lt'fe insuntnce is not a thing with which thoughtful men would wish to trifle, and life insurance companies should be confined to the business for which they are organized. Wild experiments and speculative schemes are no part of the business of life insurance. This life insurance company's contract with the agency company is an illegal contract, engaging the insurance company in a business other than .that of life i'nsurance, for which it was incorporated, and dearly falls within the condemnation of the law.
Very respectfully, ]No. C. HART, Attorney-General.

64
December 18, 1907.
Ron. Wm. A. Wright, Comptroller-General, Atlatnta, Ga.
DEAR SIR: In Re Application of the Guarantee Life Insurance Company of Texas for license to do business in Georgia.
The Guarantee Life Insurance Company, incorporated vnder the laws of Texas, has filed its application to do business in Georgia, requesting of you, as Insurance Commissioner, a license.
Life insurance companies of other States may do business in Georgia when they comply with 2042 of the Code of Georgia, which section is as follows:
"All life and accident insurance companies chartered by other States of the United States, or foreign governments, shall show by a certifu.:ate from the officer having supervision of the insurance department of the State in which they are chartered, or elect to make their deposit, that they have deposited not less than one hundred thousand dollars, in such securities as may be deemed by such officer as equivalent to cash subject to his order, as a guarantee fund for the security of policyholders of said companies."
Section 2034 of the Code of Georgia, so far as it ap plies to the question at issue, is as follows:
"No insurance company of whatever class shall be allowed to transact any business of insurance in this State, unless possessed of at least one hundred thousand dollars of actual cash capital paid up, or assets, and invested bonds or stocks, estimated at the actual market value at the date of the statement required by the pre

65
ceding section, or in mortgages on real estate worth double the amount for which the same is mortgaged."
The application of the Guarantee Life Insurance Company is accompanied by a certificate from the Commissioner of Texas that the company has a capital stock of one hundre-d thousand dollars and that its investments and surplus aggregating .$112,000 are in mortgages, which are a first iien, in compliance with the statutes of Texas, upon real estate worth double the amount for
which it is mortgaged.
The question is, is this company entitled to its license to transact the business of life insurance in this State? It is manifest from reading the foregoing sections that a life insurance company chartered under the laws of this State- may be licen~ed to do business where it has the requisite cash capital paid up and invested in "mortgages
on real estate worth double the amount for which it is
mortgaged," observing the othe-r restrictions thrown around it by law.
It is equally clear that life insurance companies chartered by other States having the requisite deposi't should be license-d to do business in this State where such securities are certified by the officer having charge of insurance _matters in that State to be the equivalent of cash, and that the. same has be-en deposl'ted subject to his order as a g)larantee fund for .the security of policyholders of said companies.
You,. as the Commissioner of Insurance, could not refuse to license a life insurance company incorporated by anothe-r State solely for the reason that its assets de-

66
posited in the other State consisted in mortgages on real e~tate. The mortgages must be valid and must amount to at least one hundred thousand dollars, and the real estate mortgaged must be worth twice the sum for which it is mortgaged. The law also requires that the officer in charge of insurance matters in that State must certify that the mortgages deposited by such company are the equivalent of cash.
The term, "equivalent to cash," has no legal or technical signification and is only language used by the legislature as indicative of its purpose to require that insurance companies before doing business in this State must" make adequate and reasonable provision for the payment of policyholders in the event of receivership.
I am of the opinion, therefore, that if you are satisfied t!1at the real estate is worth double the amount for which it is mortgaged, i"t would be your duty under the law to license the company; while on the other hand, if you are not satisfied that these mortgages are valid, or that the real estate is not worth double the amount for which it is mortgaged, it would be your duty to decline to license the company. The mere fact that the securities are in the form of mortgages would not authorize you to reject the application for a license, but you are to judge of the amount and the validity of the mortgages.
Yours very truly, ]No. C. HART, Attorney-General.

67
June 6, 1907. Hon. Pht'lip Cook) Secretary of Sta<teJ Atlanta) Ga.
DEAR SIR: I am in receipt of your communication of the 5th inst. and note your inquiry whether you could grant a charter to an industriaJ life insurance company
having less capital stock than $wo,ooo.
There would be no room for such question in the light of section 2013 of the Civil Code except for the Act of August 22, 1905, page 96, defining and regulating industrial life insurance. After very carefully reading this last named Act I am of opinion that it does not effect
re- section 2013 relative to the amount of capital stock
quired, to wit, $100,000. The chapter providing for the incorporation of insurance companies, and especially under section 2013 expressly requires, "That the capital
stock of said. company shall oo divided .into shares of
$wo.oo each and shall not be less than $IOo,ooo for each
class of insur3:nce to be engaged in an'd no insurance company chartered under this article shall commence the insurance business until at least this amount for each class of insurance to be engaged in is paid in cash, or invested in bonds of the United States,"
The Act approved August 22, 1905, above referred to, does not purport in words to modify the provision relative to the amount of capital" stock required, but does say, referring to industrial life insurance companies, "shall, before commencing to do business iq this State, comply with the laws of this State regulating the manner in which- other insurance companies shall be authorized to

68
do business in this State, except that the deposit shall be $5,000." In the language of the Act, therefore, "except as to the deposit," required to be made with the Treasurer, industrial life insurance companies must, before commencing to do, business, comply with the laws regulating other insurance companies.
It must follow, therefore, that section 2013 relative to the incorporation of insurance companie:s by you as Secretary of State, is unaffected as tv' the amount of stock necessary to be subscribed and you would not be authorized to incorporate such company to do business in this State with a capital stock of less than $100,000. The Act of August 22, 1905, must be so interpreted or else there is no limitation on the stock neces.sary to do this important branch of insurance, and if a company could be incorporated with $25,000 capital stock,_ another could
be incorporated with $1,000 of capital stock, and the
security of the policy holder would be confined exclusively to the cash deposit of $5,000 to be made with the Treasurer. This construction should not be resorted to unless the intention of the Legislature was manifest to have reduced the amount of capital stock. I do not think that such was the intention of the Legislature, but as stated, the Act contemplated still the necessary stock subscription, _to wit, $1oo,ooo, and that the only modification relative to this class of insurance had reference to the deposit required to be made with the Treasurer.
'l'he suggestion that since the Act of August 22, 1905, limited the recovery to $500.00 on a single life, argues a change of policy in the law-making department rela-

69
tive to the necessity of strong companies doing this clas!l of insurance, does not appeal to me. While it is true that the risk on a single life is limited in the case of industrial life insurance companies, the great number of lives in the aggregate makes it quite as important to provi'de against the creation of weak companies and consequent loss to this class of persons whose families perhaps are more dependent upon the solvency of the companies than in the case of larger insurance contracts.
Yours very truly,
c. }NO. HART,
Attorney General. PHILIP CooK,
Secretary of State.
August 1, 1907. Hon. Philip Cook, Secretary of State, State Capitol.
DEAR SIR: I am in receipt of your letter of July 31st in which you ask of me a construction of ~hose portions of the Act approved November 9, 1897, entitled "An Act to provide for the filing, hearing and determining of contests in elections held for the removal of county sites in this State, and for other purposes," and especially with reference to the time the testimony should be transmitted to your office, and what is "reasonable notice" of the time and place of hearing the contest by you as Secretary of State.
There is no room for construction as to the first proposition submitted relative to the time within which the testimony shall be transmitted to your office. Soction 8

70
of the Act provides "All papers and proceedings duly certified by the presiding officer, must be transmitted within ten days after the closing of the testimony." The time is definitely fixed, therefore, by the law for transmitting the papers, proceedings, evidences, etc., taken in th~ contest, to wit, ten days after the closing of the testimony.
The law then requires of you to give notice to the contestants and contestees of the time and place of hearing the contest. The law says "reasonable notice" of this time and place shall be given. It does not specify the number of days to be given. The words "reasonable uotice" are not defined by the law, but implies only that sufficient time will be given the parties in order to give them an opportunity to appear before you and present their several contentions. The case has already been made up and nothing is left except the hearing of argument, etc. I should think, therefore, that in a case of this character that where the notice given by you afforded ample opportunity for counsel to appear and be heard, that such would be the "reasonable notice" required by the law. I beg to remain,
Yours very truly,
]NO. C. 1-IART,
Attorney-General.

71

December I9, I907.

Ron. W. B. Merritt> State School Commissioner> AtlG!nta) Ga.

DEAR SIR: I am in receipt of your letter of Decem-

ber I6th and note your request for an interpretation of

the Child Labor law, approved August I, I9Q6, and

especially of section 4 of the Act. I note your request

also for an opinion as to whether attendance upon school

at night would satisfy the law requiring attendance upon

school within the meaning of the Act.

It is well understood that the legislature in passing

this Act had for its purpose primarily the welfare of the

children, both physically and mentally. The Act is not

'

'

free from obscurity but it should be interpreted bearing

in mind its purpose.

The first section of the Act provides "that from and

after the approval of this Act no child under ten years of age shall be employed or allowed to labor in or about any factory or manufacturing establishment in this State under any circumstances." There is nothing left for in-terP.retation as to this section.

The next section provides that "No child under twelve years of age shall be employed unless the child is an orphan and has no other means of support, or unless a widowed mother or aged or disabled father is dependent upon the labor of such child," and in which event the n~essary certificate, etc., must be furnished. The third section provides that "After January I, I908, no child under fourteen years of age shall be employed or allowed to labor in or about any factory or

72
manufacturing establishment within the hours of 7 p.m. and 6 a.m." This needs no interpretation and is explicit that no child under fourteen years of age shall be employed at night.
The fourth section provides, and of which section you ask especial interpretation, that "on and after January I, 1908, no child except as heretofore provided, under fourteen years of age, shall be employed or allowed to labor in or about any factory or manufacturing establi~hment within this State unless he or she can write his or her name and simple sentences and shall have attended school for twelve weeks of the preceding year, six weeks of which school attendance shall be consecutive; and no such child as aforesaid between the ages of fourteen and eighteen years shall be so employed unless such child shall have attended school for twelve weeks of the preceding year, six weeks of which school attendance shall be consecutive; and at the end of each year, until such child shall have passed the public school age," ~tc. This section is followed by the following: "The provision of this section shall apply only to children entering such employment at the age of fourteen years or less." The provision, "except as heretofore provided," refers and excepts from the operation of the statute the child who is an orphan and has no other means of support, or where a widowed mother or disabled father is dependent upon its labor. It is further provided that after that tfme and until such child shall have passed the public school age his employment is in violation of said Act, unless said child shall have attended school for twelve weeks. The

73
pt:ovision as follows, "The provisions of this section shall
apply only to children entering. sttch employ~ent at the
age of fourtee. n years or less," ' I. suspect is what has cfuis-ec:f th'e confu'sion. It is susceptible to one of two infet"l)ret~fions; first, that it applies to children who had already been employed in factories and at the time of erriploymertt wero "fourteen years or less." Second, as apphed to children for the first time engaging at labor in the factory or manufacturing establishment. Under tho first fnterpretation a child who had entered ~his serviCe while under fourteen years or less may not be retained in the employment after reaching the age of fourteen years, beginning with January I, 1<}08, unless he has attended school for twelve weeks of the preceding year and write his or her name and simple sentences. To iUustrate, a child employed in a mill at the age of thirteen years attains its fourteenth birthday on December 31, I907 Such child could not, under the provisions of this law, be retained in the mill unless he shall have att~nded school for twelve weeks in the year 1907. On the other hand, a child who was employed in the mill
at the age of fifteen years and attained its sixteenth birthday on Dete~per .31, 1907, could, under the provisions quoted, be retained in the employment whether or not it has attended school or could read or write. Again, a child, say sixteen years old, could be employed at this service if it be for the first time in a mill whether or not he can read or write, or has attended school. The limitation and restriction i'n this provision refers to "chit-

74
dren entering such employment at the age of fourteen years or less."
The second. question you raise, viz,, will attendance on night school be sufficient, is hardly a legal 'or prac~
tical question. I. am not advised of any provis~on in the
law for operating public schools at night. I construe the Act in question as intending as a condition precedent to employment of children of tender years in the mills attendance upon the schools in good faith. A child who works in the mill from 6 o'clock in the morning to 6 o'clock at night could not accomplish very much by attending school at night. Even children who must work need to sleep. They can not work both day and night. The legislature, of course, knew that. The Act had not for its purpose the requirement that children should do the unreasonable, if not the impossible. It was intended .to benefit, not to destroy children. As stated, however, this is not a legal question, for the reason the law ha3 made no provision for public schools operating at night.
I beg to_ remain, Yours very truly,
}No. C. HART,
Attorney-General.

75

September 19, 1907.

Hon. W. B. Merritt, State School Commissioner, At-

lcmta, Ga.

DE:AR SIR: In reply to your inquiry this day sub-

mitted, whether county commission:ers failing to include-

ia the levy of taxes a levy upon the property of citizens in

local school districts, may at a subsequent mee,ting add,

such levy, I beg to advise:

.1,.

1

I think under section 5 of the McMichael Act, ap

proved August 21, 19o6, and the amendment thereto ap-

proved August 22, 1907, that where, county commissioners

fail to include in the levy of taxes the school tax for local

districts in the county, they may subsequently do so ami

at any time prior to the date which the taxes are due.

While there is a provision in the McMichael Act con-

templating that at the time the general levy is made by

the county commissioners that they shall include such

districts, I do not understand that that is .mandatory.

and to subsequently include such districts would not be

ille,gal, but in effect is simply curing an omission of duty

en their part.

Yours very truly,
]NO. c. HART,

Attorney-General.

76

April 12, 1907

Hon. W. B,. llferritt, State Sc~ool Comm.issioner;~ S~qte

Capt:tol.

DEAR SIR: I be&" to acknowledge your r~~ent <;OpJ-

munication and the reference to the letter of Mr. B. P.



.

' ' !"'1 ~:

..

Jordan, county school commissioner of Columbia county.

Mr. Jordan raises two questions, which you have re-

ferred to this office for an official opinion. First. Under

the recital of fact was it within the power of the grand

jury of Columbia county to remove the old board of

education of that county and elect successors. Secondly.

Is it your duty to have commissions issued under the fact

to the new board of education?

It appears that the grand ~ury of Columbia county at

the last term of the Su~;>erior Court removed, for what

in its opinion was sufficient cause, the board of education

of that county, the reason being that the board had not

laid off into school districts the territory of the county

as was required of them by the first section of the Mc-

Michael Act, as amended August 21, IgX). That Act

requires substantially that it shall be the duty of the

county board of education to lay off the county into

school districts within thirty days after the passage of

the Act, or as soon therea~ter as practicable, and further

tecites that "the failure of any county board of education

to comply with the requirements of this section within

six months after the passage of the bill shall operate to

annul their commtssions, and vacancies thus made to be

filled as the law requires such vacancies to be filled."

17

It is the contention of the board of education of that

county that they had heretofore, to wit, in 1897, laid off

into school districts the county of Columbia and had a

map
. .

mad.e

as

their

insistence is,

practically

meeting

the

requirements of the present law, and that the old board

therefore did not understand that they were required to

redistrict the county. I merely state these contentions,

not for the purpose of deciding that the duty was or was

not upon the present board to redistrict the county, but

for the purpose of calling attention to the fact that the

county board of education believed that the duty was

not upon them to redistrict the county. Whether or not.

however, this defense is. good is immaterial, the old board

at least must be accorded the opportunity of a right to

be heard in their defense. Under the statement of fact

submitted the grand jury did not give the old board an

opportunity to be heard, but dismissed them summarily

and without notice. The McMichael Act referred to

does not provide for notice and in this respect the Act is

unconstitutional. The question is not an open one. In

the case of Colema,n vs. Glenn, 103 Ga. 458, our supreme

court declares, "A statute declaring that a county officer

elected for a fixed term shall be removed from his office
by the judge of the superior court of the county on the

address of two-thirds of the grand jury for inefficiency,

incapacity, general neglect of duty, or for malfeasance

or misconduct in office, but which makes no provision for

any notice to such officer or for a hearing of the charge

or charges against him, with opportunity to make his de-

fense, is unconstitutional ; and the order of removal

based upon a statute is a mere nullity."

78
Members of a county board of education are public officers. Smith vs. Bohler, 72 Ga. 546.
An officer appointed or elected for a defimte term or during good behavior suqject to be removed only for cause can not, by the great weight of authority, be removed )Vithout notice and hearing. See Meachem Public Officers, 454.
It follows, therefore, necessarily, that a statute pro~ viding for the removal from office of such an officer for inefficiency, neglect of duty or other cause, which makes no provision for giving him notice, or for allowing him to be heard in his defense, is contrary to the constitutional guarantee which declares that no person shall be deprived of life, liberty or property without due process of law. See Kennard vs. Louisiana, 92 U. S. 480. Foster vs. Kansas, 112 U. S. 201.
It follows, therefore, that the order entered by the judge of the superior court of Columbia county upon the recommendation of the grand jury undertaking to remove from office the old members of the county qoard of education and the election of their successors, was a mere nullity. It was based upon 'an unconstitutional statute which made no provision for notice to these officers and none was in fact given. .
This disposes of the first inquiry and necessarily of the second inquiry above.
It appearing, therefore, from the records of file in your office and on the face of the order that the terms of the old board had not expired and the further fact appearing that they were removed without notice and without

79
hearing, you should not issue commissions to the so-called new board, for .under the law a vacancy can not be supplied until a vacancy exists.
Yours very truly, }No. C. HART, Attorney-General.
March 16, 1907. Judge los. S. Turner, Chairman Prison Commission,
Atlanta, Ga.
DEAR SIR: I am in receipt of your inquiry of the 14th wherein you invoke an official opinion of me on the following state of facts: "Gus Nelson was convicted in the Superior Court of Houston county of burglary and \YaS Sentenced to a. term of fifteen years in the penitentiary. He was re~eived in prison April 27, 1893, and escaped therefrom October 17, 1901. While at large he committed two misdemeanors in Sumter county, was arrested, tried, convicted and sentenced to the chaingang of said county where he is now confined. The court before whom he was last convicted did not know that he was an escaped felony convict.and therefore no reference was made in the misdemeanor sentence to his former sentence for a felony. The commission would like to be advised, first, which authority is entitled to the custody of this man, the penitentiary authorities or the chaingang authorities? Second, being now in the custody of the law, are the sentences of the two courts concurrent or to be served in succession?"

.so
In answer to th~ first inquiry1 I am o-f the ~inion that
the convict should be returned to the -penite~tiary au-
thorities to complete the former sentence for the offence of burglary. This is not put upon the theory of prior . property right in the convict, for I do not understand that property rights is in the least involved, for the care, keep and custody of a convict is properly speaking in a legal sense, a burden upon the authorities. Again, it would seem that the proper and orderly infliction of punishment should have regard to the gravity of the crime. The rule as to punishment of crime is not unlike the rule for the trial of a person charged with two separate offenses. It would be idle in the courts to try a person charged w.ith the offense of simple larceny when indicted for the offense of murder. If he is guilty of the offense of murder he would have no opportunity to serve a sentence imposed upon him for simple larceny. The principle above announced would, of course, vary according to the circumstances of each case. Should the convict while escaped have committed the offense of murder and was. duly convicted thereof and was in process of service of that sentence, he should not of course be remanded to the first authorities for the r~son that; he is serving a sentence for an offense of greater gravity. Or, if the offense for which he was convicted after his first escape was of the same gravity the law would not concern itself about the authority under which he was expiating the sentence.
In reply to the second inquiry, I am of the opinion that the sentences of the two courts ar.e not concurrent.

.81
The section of the Code, 1041, providing, "Where a person shall be prosecuted and convicted on more than one indictment and the sentences ar.e imprisonment in th~ penitentiary, such sentences should be severally executed the one after the other; and the judge shall specify in each the time when it shall commence and the length of its duration." This section has no application where th.e different sentences w~re imposed by different courts. This is expressly ruled in the case of Hightower vs. Hollis, reported in the 121 Ga. 159. The provision of the Code referred to clearly had reference only to cases where an accused person convicted of crime should be senten{:ed at the same time for more than one offense by the same judge. I beg to remain,
Yours very truly,
]NO. c. HART,
Attorney-General.
August I, 1907. Capt. Ceo. Tumlin, Keeper of Public Buildings and
Grounds, State Capitol. DEAR SIR : As I understand your office is .created under 134 of the Political Code, that section making provision for appointment by the Governor of 'fa person to keep the Capitol grounds and other State property at the seat of government in proper order." The statute does not in detail define your duties, but the provision is a broad one, designating you as the officer to look after and keep in proper order the Capitol grourids and other

82

State property at the seat of government. Whatever au-

thority is needful to do this would be implied by the ap-

pointment.

Replying, however, specifically to your inquiry

"whether you have authority to sdl the worn;..out furni-

ture, carpets, etc., and use the money arising therefrom

in the purchase of other furniture," I beg leave to say

I hardly think that you have authority to sell and rein;.

vest on your own i'nitiative. The governor, however, has

authority under 278 of the Code to sell unserviceable

property, and it would be perfectly competent for him

to direct you to dispose of this worn-out furniture, car-

pets, etc., the money received therefrom to go into the

treasury. 'An entry is required to be kept and in a book

of property so sold.

I quite agree with you in your suggestion that it is

the part of good judgment to dispose of the rubbish now

stored away in the public buildings, of no use whatever

to the State but a menace to the health of th~ occupants

and endangers the safety of the buildings. I beg to re-

main,

Yours very truly,
JNO. c. HART,

Attorney-General.

83
Hon. !no. W. Lindsey, Pension Commissioner, 'Atlanta, Georgia.
DEAR SIR: Replying to your recent request for an official opinion "whether to entitle an indigent widow of a Confederate soldier to a pension, it is essential that she :should have been married to him for the period of six months, during which time he was a soldier, or is it :sufficient to entitle her to the pension that at the time she married him he was a Confederate soldier?"
The applicant in this case married her husband during the war, and whilst he was a soldier. The marriage was solemnized upon his return from the army on a furlough for that purpose. He returned at once after the ceremony to his command which surrendered shortly thereafter with Lee at Appomattox. The husband died last year. He never asked for a pension during ,his lifetime for the reason he was able to support himself and wife. The widow is now indigent, and, from age .and infirmity, is unable to support herself. Is she entitled to a pension as the widow of a Confederate soldier?
The authority of the Legislature to levy a tax for the purpose of pensioning widows of Confederate soldiers is found in article '7, section I, paragraph I (Code, 5882). So much of this section as is material to the inquiry I quote as follows : "The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes only . . . . and for the widows of such Confederate soldiers as may have died in the service of the Confederate States, or since

84
from wounds received therein, or diseases contracted in service; or who, by rea.son of age and poverty, or infirmity and poverty, or blindness and' poverty, are unable to provide ai living for themselves; provided the Act shall apply only to such widows as were married at the time of such service and have remained unmarried since the death of such soldier 'husband." That portion of the above extract italicised is an amendment to the Constitution ratified by the people at the general election in 1900 in pursuance of the Act approved December .zo~ 1899
.The pressure of the case rests upon the meaning of the words in the proviso where it is required that she must have been married "at the time of such service." Does this mean that she must have been married to him for six months during the time he was a soldier, or is it sufficient tHat at the time she married him he was in fact a soldier ~erforming military service? There is nothing in the constitutional provision in so many words requiring that the marriage must have existed during the period of "six months' service." That provision relative to' service is statutory and is found in the Act approved December 15, 18g4 (Acts of 1894, p. 32) wherein the Legishiture, in pursuance of the constitutional provision, created a class of pensioners who, by reason of "age and poverty, were unable to support themselves," declaring as a condition precedent that such Confederate soldier should prove "six months' service" before he was entitled to a p~nsion. I assume that the Legislature had

authority to put this provision in the Act and to require that before a soldier would be entitled to a pension under this provision he must have rendered the six months' service. This limitation, however, is to the length of service, and applies to the soldier and is not a limitation upon the marriage or the widow. It i.s conceded that the soldier husband had rendered six months of service, and, more, to the Confederacy. He was at the time of this marriage a soldier. She was then a soldier's wife, and is now a soldier's widow.
It is my opinion, therefore, that she i.s entitled now to the pension, and as long hereafter as she continu~s to be his widow and is unable to provide, on account of age, infirmity or blindness, a living for herself.
Yours very truly,
}NO c. HART,
Attorney-General.