THE EIGHTH ANNUAL REPORT
OF
JOHN C. HART
ATTORNEY-GENERAL OF GEORGIA
WITH AN APPENDIX CONTAINING OPINIONS
FROM
JANUARY I st, 1909 TO DECEMBER 31st, t909
krLANTA, GA.
CHAS. P. BYRD, State Printer, .1910.

Attorneys General of Georgia.
Wm. Stephens ....................... 1776-1780 John Milledge ....................... 1780-1781 Samuel Stirk ......................... 1781-1785 Nathaniel Pendleton ................. 1785-1786 Matthew McAllister .................. 1787-1791 George Walker ....................... 1792-1795 David B. Mitchell .................... 1796-1806 Robt. Walker ........................ 1807-1810 John Forsyth ........................ 18101810 Hichard Henry Wilde : .............. .1811-1815 Roger L. Gamble ..................... 1816-1819 From 1819 Solicitor General of the :Middle Circuit was by virtue of his office acting Attorney General. 'l'he office of Attorney General was revived in 1868.
Henry P. Farrer ...................... 1868-1872 N. J. Hammond ...................... 1872-1876 Robt. N. Ely ........................ 1876-1880 Clifford Anderson .................... 1880-1890 George N. Lester .................... 1890-1892 Wrn. A. Little (Asst) .................. 1891-1892 Joseph M. Terrell .................... 1892-1902 John C. Ha1t . . . . . . . . . . . . . . . . . . . . . . . . 1902-

REPORT
OFFICE OF THE ATTORNEY-GENERAL,
ATLANTA, GA., December 31st, 1909.
To His Excellency, J os. M. BRowN, Governor.
Sm: Pursuant to the provisions of law I have the honor to submit herewith my annual report of the work in part of this office from January 1st to December 31st,_ 1909, inclusive. I also append a number of official opinions rendered the heads of the various departments of the State and considered of sufficient importance for publication. I may add the oral opinions far exceed those written but were not reduced to writing because of their momentary. nature.
The volume of correspondence in this office is grea,tly increased by letters fronr county and municipal officials requesting opinions and advice upon matters of gravity and importance to the administration of county and municipal affairs and while strictly speaking this is not a part of the duties of the office of Attorney-General, yet, these requests can not be ignored and when with propriety may be given it is the policy of the office to do so.

CAPITAL CASES.
The Constitution of this State requires that the
Attorney-General shall represent .the State iii the
all Supreme Court in capital cases. In pursuance
of that provision I have represented the State in forty-one capital cases during the year 1909.
Ed Fallin v. State. Wilkes County. Death. Affirmed.
J. M. Elliott v. State. T'roup County. Death.
Affirmed. Mose Peterson v. State. Clay County. Life Im-
prisonment. Affirmed. Horace Wims v. State. Calhoun Co. Life im-
prisonment. Affirmed. Ed. Raysor v. State. Camden Co. Death. Re-
versed. Ben Lowe v. State. Macon Co. Life imprison-
ment. Affirmed. Scott Jones v. State. Macon Co. Life imprison-
ment. Affirmed. Alfred Mole v. State. Tattnall Co. Life impris-
onment. Dismissed for want of prosecution. Alfred Moore V: State. Dooly Co. Life impris-
onment. Affirmed. Jim wiggins v. State. Dooly Co. Death. Af-
firmed. Tilt Shelton v. State. Chattahoochee Co. Life
imprisonment. Affirmed. Henry Jackson v. State. Terrell Co. Life im-
prisonment. Reversed. Solomon Brantley v. State. Washington Co. Plea
4

of former jeopardy filed. Demurrer sustained. Affirmed;
.Robt. Minor v. State. Richmond Co. Rape. Fifteen years. Affirmed.
Lucius Monnan v. State. Laurens Co. Life imprisonment. Affirmed.
Burdette Strickland v. State. Harris Co. Death. R,eversed.
Miles Hunter v. State. Washington Co. Life imprisonment. Affivmed.
Ira Allen v. State. Laurens Co. imprisonment. Affirmed.
Clyde Giliard v. State. Fulton Co. Life imprisonment. Affirmed.
Ali Hall v. State. Grady Co. Life imprisonment. R,eversed.
Solomon Brantley v. State. Washington Co. Life imprisonment. Affirmed.
Will Hawkins v. State. Clarke Co. Death. Affirmed.
Sawyer Battle v. State. Jones Co. Death. Reversed.
Will Mills v. State. Grady Co. Death. Reversed.
Geo. Gools'hy v. State. Upson Co. Death. Affirmed.
Wil. Stephenson v. State. Henry. Co. Life imprisonment. Affirmed.
El1a Pride v. State. Early Co. Life lmpnsonment. Affirmed.
Geo. E. Burge v. State. Fulton Co. Death. Affirmed.
5

Henry Andrews v. State. Thomas Co. Life im-

prisonment. Reversed.

Cleveland Westbrook v. State. Tift Co. Death.

Reversed.

Judson Joiner v. State. Emanuel Co. Rape. 20

years. Affirmed.

R. V. L. Day v. State. Coffee Co. Life imprison-

ment. Affirmed.

J. C. Tucker v. State. T'elfair Co. Life impris-

onment. Affirmed.

Willard Webb v. State. Cobb Co. Rape. Death.

Affirmed.

Geo. Leonard v. State. T'elfair Co. Life impris-

onment. Affirmed.

W. B. & Archie Lyens v. State. Wayne Co. Life

imprisonment. Reversed.

John Suple v. State. Jeff Davis Co. Death. Af-

firmed.

Jack Moore v. State. Jasper Co. Life imprison-

ment. Affirmed.

Jack \Vorthington v. State. Bartow Co. Rape.

Refusal of judge to certify motion after adjournment

of special term. Affirmed.
wm Hhodes v. State. Greene Co. Life impris-

onment. Affirmed.

Rodgers Merritt. Fulton Co. Rape. Death. Af-

firmed.

_

In looking back over the files of this office for the

past eight years I find that this is a'bout an average

annual number of capital cases during that interval.

The high water mark was in 1907 when there were

fifty capital cases argued, while in 1906 the number

6

was thirty-one. I note again that the average reversals is about 15 per cent. In other words the affirmances are about eighty-five out of one hundred cases brought to the Supreme Court upon writs of error. I call attention to this because it is a refutation of the criticism so often made that the crime of murder is sparingly punished in Georgia.
THE LAW NOT PERFECT.
A very frequent criticism of the law is its delay, but this critici-sm is not justified. Under our present system of criminal procedure it is possible to try one (harged with a crime and hang him within sixty days of the date of its commission and this al-
lows an appeal to the Supreme Court. In the ab-
sence of a motion for new trial or appeal to the Supreme Court, he may be tried, convicted and hanged within less than thirty days. It is generally true however -that much more time is consumed than this, but it is not just to declare a wholesale denunciation of the law because lawyers insist upon the rights guaranteed to their client be given before final execution. Where a human life is involved thb lawyer is really recreant of his trust if he fails to insist upon every right vouchsafed to his client even though in doing so delay is involved.
I suggest, with some diffidence however; that we might correct our criminal procedure in the following respects :
7

First. The peremptory challenge of the jurors allowed in the trial of criminal cases. Under our system of selecting a jury the accused, where the offence subjects him to death or four ye~rs improsonmMt in the penitentiary or longer, is allowed to challenge peremptorily twenty of the jurors and the State is allowed to challenge one-half of thiS' number. No good reason occurs to me why the prisoner should be allowed to challenge any more of the jurors than is allowed the State. TJ:ie purpose of the privilege is to secure a fair and impartial jury, but by giving to the defendant the advantage in strikes it enables him to secure an unfair and impartial jury, or at least it l.ooks that such is the purpose of allowing the extra challenge. If thiS' be the purpose it should not be allowed, and if that is not the purpose then the jury should not be subjected to such implication.
Second. Again I would suggest a change by legislative enactment of the law of this State which permits a plaintiff in error in a criminal case to set aside a verdict on the general assignment of error that it is against the law, where the record failS' to disclose the venue of the crime. Under a general assignment of _error that the verdict is contrary to law the Supreme Court has ruled that it would be obliged to declare a new trial although the point was raised for the first time in the appellate court that the record fails to diS'close affirmatively the venue of the offense. It is necessary, of course, in the trial of a criminal case to prove the venue, but exceptions to this omission should be
8

made specifically in the court below. I do not hesitate to venture the opinion that the Supreme Court itself would recognize that it would be wise to get away from these decisions. In the Moye case, 65 Ga. p. 74, it was held that where it appeared the crime was committed in the city of Americus was not sufficient to establish the venue; and in Cooper's case, 116 Ga. 119 it was held that the proof that the crime was co1Iimitted in Lawrenceville did not establish the venue beyond a reasonable doubt In the case of Murphey vs. State, 121 Ga. 142, wherein the question under consideration was whether testimony that the crime was committed in the City of Atlanta was sufficient, the Court said: ''If the question were now open we would rule to the contrary" but in view 'of the other decisions of the court it was constrained to rule ~hat the venue was not sufficiently proved. The Court further says in this opinion "We take this occasion to suggest the property of legislation declaring !hat neither the judge of the trial court nor this comt shall be required to render a judgment, the effect of which is to grant a new trial in a criminal case because the venue was not sufficiently proved unless it appears from the record that this question was distinctly made at the trial and before a verdict. ''
Third. Relative to the relationship by affinity or consanguinity of the juror to the prosecutor it is cauS'e for setting aside 'a verdict in this State where the juror is related by affinity to the prosecutor, even though 1he relationship is not known by the accused . or the prosecutor until after the verdict. Where the
9

relationship is known at the trial the verdict could be properly set aside because the juror may be supposed to be partial on account of that relationship, but I respectfully suggest no good reason can be offered why a verdict should be set aside because the wife of a juror was related within the fourth degree to the prosecutor, when neither the prosecutor nor the juror ever heard of the relationship until after the verdict. The Supreme Court of Georgia in the case of Lyens vs. State, 133 Ga., 587, was constrained by a divided court to set aside the verdict in that case because of prior decisions on the subject, solely for the reason that the wife of one of the jurors was second cousin to the prosecutor, though the relationship was unknown to the parties.
OUR TAX LAWS.
I again call attention to the ancient and inadequate system under which we collect annually the States revenue. While we have made some progress in amending these laws the system as a whole may be classed as antequated. The returns are practically voluntary and as each man is allowed to value his property and that value is unchallenged, inequality in the burden of taxation is the consequence. This ought not to be and it may be remedied very largely by the creation of county assessors and a State board of equalizers. I quite understand that the reformation of our tax laws, to the end that the burden of taxation may be equally borne and property may be returned at its fair valuation, is not a popular one,
10

and yet it must be conceded that the State is vitally interested in the collection of its revenues, but for the annual contributions made by the citizens of the State for the support of government the State would of necessity go out of business. This applies with equal force to counties, municipalities and other political subdivisions. The aim of government should be to collect these taxes fairly and impartially and it is the duty of all persons, individual _and corporate, to return their property at its true market value. I would suggest as a method of accomplishing- this end the establishment of a board of county assessors in each county and a State board of equalizers. The purpose of the county board of assessors is to equalize the tax between the citizens of that cou:o.ty, while the function of the State board of equalizers is to see that the -taxes imposed by the county authorities are relatively just and equal. The question of taxation has ever been important, but in view of Dn increased disposition on the part of counties and municipalities to levy additional taxes and the issuance of bonds for road improvements, schools ~nd other like interests, the question is growing daily more important.
WESTERN & ATLANTIC RAILROAD.
On December 16th, 1902, beginning with my in. eumbency of this office the General Assembly passed
an Act requiring that the Attorney-General of the State without compensation should perform the duties heretofore performed by the ~pecial Attorney of the Western & Atlantic Railroad.
11

In my Fifth Annual Report to the Governor I called to his attention that the terminals in Chattanooga had 'been more or less the subject of municipal legislation and litigation for several years and t~1at now and then a proposition was sprung in Chattannoga for the city to widen or extend its streets over and across our terminals. In the report I expressed the opinion that it was more than probable the City of Chattanooga by reason of prior ordinances, contracts and judicial decisions in contrQversies with the State of Georgia, was now estopped from ~ondemning our terminals.
The property now occupied by our road in Chattanooga is unquestionably of great value for commercial uses and the State were it in position to repossess itself of ~his property could realize a handsome sum by devoting this land to commer~ial purposes. The State, however, has leased this property aiid could not now utilize it, but it would be well that the question as to the future disposition of these terminals should be considered in advance of the termination of the present lease.
The last General Assembly passed an Act authOlizing the Governor to purchase lands outside of the Cit yof Chattanooga, thus indicating that it was the State's policy to abandon its terminals in Chattanooga and acquire lands outside of the city to be used as freight terminals, shipping yards, etc. Correspondence between Your Excellency and myself on that subject I herewith attach and make a part of this report, as follows:
12

September 1st 1909.
HoN. JNo. C. HART, Attorney-General,
Atlanta, Ga.
DEAR Sm :-'fhe Legislature at its last session by resolution directed me as Governor upon the conditions therein named to pay $69,000 out of the Treasury for the purchase of some vacant land near Chattanooga in the State of Tennessee "for increasing the facilities of the Western & Atlantic Railroad.'' The purpos~ of the purchase is to use this land as a switch yard should the State desire to do so at the termination of its present lease, ten years hence. I am anxious to comply with the instructions of the Legislature if there are any funds in the Treasury available for that purpose. My information is that there is at present in the Treasury the sum of approximately $160,000.
The Legislature of 1907-8 appropriated $2,250,000 for the comnion schools of this State for the year 1909. The State is short nearly $2,000,000 in meeting this appropriation.
Under this statement of fact would I be authorized to draw my warrant, and would. the Treasurer have authority to pay this $69,000 for the purchase of this vacant land which we may possibly need for railroad purposes ten years hence 7
Yours very truly, J OS. M. BROWN' Governor.
13

~eptember 2nd, 1909.
GovERNOR Jos. M. BRowN,
State Capitol, Atlanta, Ga.
DEAR SIR :-I beg to acknowledge your letter of the 1st inst. in which you ask if the money now in the Treasury of the State of Georgia is available, under the resolution of the General Assembly recently adjourned; for the purchase of land lying outside of the city of Chattanooga, Tennessee, to be used as .a switch yard in the future operation of the Western & Atlantic Railroad. You state in your letter there is at present in the Treasury approximately One Hundred and Sixty Thousand Dollars and that the State is already short Two Million Dollars in meeting the appropriation made by the Legislature of 1907-8, for the support and maintenance of the common schools of the State for the year 1909.
The legal question involved is : May the Legislature of 1909 divert money which had been appropriated by the Legislature of 1908 and on the faith of the appropriation the school teachers of the State entered into contracts with the boards of education of the counties of the State and actually performed the service of teaching the children of the State? The money now remaining in the Treasury was raised by a special tax levy and for the support of the common schools of the State. See Acts of the General Assembly of Georgia 1907, p. 25. The teachers of the State have performed the service
14

upon the faith of that promise that it would be paid them for their services. The teachers have executed their part of this contract and the State now owes them the money which it had pledged would be paid them. For a subsequent Legislature to divert the money and apply it to a different purpose from that for _which it was raised by taxation and pledged by the State, amounts substantially to the. impairment of a contract, which is forbidden both by the Constitution of this State and of the United States.
In view of these conditions there is at present no money in the Treasury which could legally be used for the purchase of the land in question.
I beg to remain, Yours very truly, JoHN C. HART, Attorney-General.
'.rHE STATE OF GEORGIA, VS THE WESTERN & ATLANTf0 RAILROAD CO.
This suit was brought in Fulton Superior Court against the lessees of the Western & Atlantic Railroad, for the recovery of taxes on property which the Stat9 claims has never been returned for taxation by the lessees, and for which they are liable under the lease.
It was impossible to learn the extent and value of this property from the leS'sees of the road and a peti:. tion in the nature of a 'bill for discovery and relief
15

was filed in Fulton Superior Court, asking the court to require the lessees to produce their records from which it is expected to show just the nature and extent of the property.
I am indebted to Messrs. Alexander & Candler, appointed by ex-Governor Hoke Smith as special counsel in this case, for the preparation of the petition.
A demurrer was filed by the lessee company, represented by Messrs. Tye, Peeples & Jordan, which was argued December 1st and 2nd, 1909 before Judge Pendleton. The demurrer was sustained. The case is now on appeal before the Supreme Court of Geor-, !pa.
IN RE CHASE. STEGALL VS. R. W. THUR-
MOND, SHERIFF OF DADE COUNTY.
In September, 1909, a conflict arose between the State and Federal Courts relative to the co1lllr.itment by Hon A. W. Fite, judge of the superior court of Dade County of Chas. E. Stegall, store keeper and gauger in the distillery of Geo. W. Cureton. The grand jury of Dade County had under investigation an indictment charging Geo. W. Cureton with the offense of violating the prohibition laws of this State. Chas. E. Stegall was summoned before the grand jury as a witness and when asked by the grand jury what was being manufactured at Cureton's distillery he declined to answer, giving a~ his reason therefor that he was a store keeper and gauger in the
16

employment of the U. S. government and as such officer he was for<bidden by the rules and regulations of the office to answer the question propounded. Stegall was then committed to jail for contempt of court in refusing to answer the question. Habeas corpus proceedings were then instituted before Hon. Wm. T. Newman, judge of the United State District Court for the Northern District of Georgia, directed to Thurmond, sheriff, requiring that he should produce the body of Stegall before him at the date and place designated. The judge of the Superior Court of Dade County. was of the opinion that the Federal Court had no jurisd)ction in the matter and advised the sheriff to disregard the writ of habeas corpus. Thus it seemed that a conflict was unavoidable between the State and Federal judiciary. Your Excellency directed as Attorney General that I should take hold of the situation.
I was of the opinion the judge of the State Court was well within his authority in committing Stegall to jail, hut was equally clear in my opinion that it was the duty of the sheriff to respect the writ and set up in his return the reason of the detention of the Federal officer. This was done and in connection with the solicitor general of that circuit we set up that the question asked Stegall was a proper one and that it was the duty of the Federal Court judge to remand him to jail there to be kept until he had purged himself of his contempt. Judge Newman did not agree with the State's contention in the matter and ordered the release of Stegall.
Ib view of the importance of this caS'e I should
17

have taken an appeal, but in the interval under the direction of Judge Fite the distillery of Cureton was raided and ample evidence has been secured for his prosecution, much of which has been furnished by the Federal authorities. It is now the well defined policy of the Federal authorities, as declared by Federal officials high in authority, to aid the State in procuring evidence for the violation of the liquor laws of this State.
A. BRYANT, ET' AL VS. SOUTHERN INSUR-
ANCE COMPANY' OF NEW ORLEANS.
-
Suits were brought in this State by plaintiffs, policy-holders in said insurance company, alleging the insolvency of the company and asking the court to appoint a recefver to take charge of the assets of the company and especially of the 'bonds in the custody of the treasurer of this State, which had been deposited as provided by law for the protection of its policy-holders.
J. I.1. Riley was appointed receiver by the judge of the superior court of Fulton County, under this proceeding, and under a similar proceeding in Sumter superior court, F. A. Hooper, of Americus, Georgia, was also appointed receiver by the judge of that court.
Both receivers made demand upon the State T'reasurer to turn over to him the bonds of saiu company in his .custody.
The Treasurer under these conditions wa'S in
lS

doubt as to his duty in the premise and as a matter of precaution to himself personally and as to his duty to the State, declined to deliver up the bonds to either of the receivers, and untitl he could safely do so under a judgment of the court, to which proceeding both receivers should be made parties.
Accordingly in response to a rule nisi issued by the judge of the superior court of Fulton County, on March 9th, 1909, requiring the State Treasurer to show cause why a temporary order should not issue directing him to deliver the bonds in his custody belonging to the insurance company, to J. L. Riley, receiver, respondent replied, asking that the court make the receivers parties to the proceeding and require them to interplead to the end that_ it might be determined to which of said rec~ivers he should deliver the bonds in his custody. The case was argued before Judge Ellis, of the superior court of Fulton County on March 20th, ;1nd on he passed an order directing that the Treasurer deliver to J. L. Riley, receiver, the bonds of said insurance company in his custody, which was done on April 22nd, 1909.
WM. A. WRIGHT, COMPTROLLER-GENERAIJ
VS. DURHAM COAL & COKE COMPANY, AND A'MERICAN SUR.ETY COMPANY.
This case arose on the issuance of a fi fa against the Durham Coal & Coke Company of Chattanooga,
19

Tennessee, and the American 'Surety Company of New York, by Wm. A. Wright, Comptroller, on May 27th, 1909 and was for the balance due the State of Georgia by the Coal & Coke Company for convict hire.
I immediately took the matter up with the attorney for the Durham Coal & Coke Company, Mr. Burton Smith, requesting that the money be paid anQ in compliance with that request Mr. Smith on June 7th, 1909 mailed me a check for $1,261.62 to cover the principal, interest and cost of issuing the :fi fa.
This money was paid under protest the Durham Coal & Coke Company insisting that the Prison Commission had not complied with the terms of the lease contract and that it is entitled to a credit.
WM. A. WRIGHT, COMPTROLLER-GENERAL VS. THE E. 'E. FOY MANUFACTURING COMPANY AND AMERICAN
SURETY COMPANY.
This case also arose on the issuance of a :fi fa on May 27th, 1909 by the Comptroller-General against The E. E. Foy Manufacturing Company, of Chatham county, and :American Sur~ty Company, of New York, the amount of the :fi fa being $2,690.06, balance on convict hire due the State of Georgia for the quarter ending March 31st, 1909.
On June 1st, 1909, I notified counsel for Tbe E. E. ]'oy Manufacturing Company, Messrs. Osborne &
20

Lawrence, of Savannah, of the issuance of this fi fa, and on .Tuly 7th, 1909, this company paid the principal, interest and costs by check to the State Treasurer through the Comptroller-General.
SEABOARD AIR LINE RAILROAD COMPANY VS. RAILROAD COMMISSION, ET. AL.
This was an injunction brought by the Seaboard Air Line in the Circuit Court of the United States, for the Northern District of Georgia, to restrain the enforcement of the "Headlight law," passed by the General Assembly in 1908 and to become effective July 1st, 1909, requiring railroads to equip their locomotives with electric headlights, and making it a misdemeanor upon failure and refusal to do so.
The Railroad Commissioners, the Attorney-General and Solicitor-General were made parties defendant to the suit and I, together with Judge J as. K. Hines, Special Attorney for the Railroad Commission appeared for the State. The Brotherhood of Locomotive Engineers were interested in the law and employed Hon. Thos. S. Felder, of Macon, 'Georgia, to represent them in the defense of the law.
The bill was attacked by the railroad companies as unconstitutional because not regularly and legally passed by the General Assembly. It was a House bill and passed the Senate by substitute, in which the House refused to concur, whereupon the Senate by vote receded from its position on the substitute,
21

and the House bill was declared duly passed. Thus it is claimed the House bill was never passed by the Senate.
The case was referred by the judge to a master to hear evidence and on the hearing on June 14th, 1909, the State filed a demurrer to the petition, introducing no eviqence, the grounds of the demurrer being that a court of equity is without jurisdiction to enjoin a criminal prosecution and that the court had no jurisdiction over defendants as State officers, it being in effect a suit against the State and contrary to the Eleventh Amendment to the Constitution of the United States. It appearing further the . road was in the hands of a receiver; it was suggested by the State, the statute had no application.
Stipulations were entered into between counsel representing the Southern Railway Company, the Atlantic Coast Line Railway Company, and the Georgia Railroad, and the Governor and Attorney-General whereby it was agreed that the State of Georgia would bring a criminal proceeding against the Atlantic Coast Line Railroad Company in such court and county as it may select, said prosecution to be based on the violation of said enactment and pending this action nv further prosecutions were to be instituted, and in this way the question of the constitutionality of the bill could be raised and pasS'ed upon by the courts. While the Governor and the Attorney-General did not and could not insure jmmunity to persons violating criminal statutes, yet since the purpose js to test the constitutionality of an Act in a speedy and inexpensive way in the courts of the
22

State, they agreed so far as they were able to do so to exert any power they might have to carry out the letter and spirit of the._f;ltipulation.
Accordingly a case was brought in Richmond county, wherein the road was adjudged guilty. The case was duly appealed to the Court of Appeals, which latter court by reason of Constitutional questions iRvolved certified it to the Supreme Court where it awaits final decision.
OLD COLONY TRUST COM'PANY, ET:C. VS ATLANTA, BIRMINGHAM & ATLANT'IC RAILROAD COMPANY.
This was a suit for the collection of taxes, State, county, municipal and school district, filed by the Attorney-General at the instance of the ComptrollerGeneral and upon the order of Governor Hoke Smith, against the Atlanta, Birmingham & Atlantic Railroad Company, and arose upon an intervention filed June 2nd, 1909 in the Circuit Court of the United States for the Northern District of Georgia, by the Attorney-General.
On .January 1st, 1909, in pursuance of a petition filed in the Circuit Court of the United States for the Northern District of Georgia, on an order of Honorable Don A. Pardee, Circuit Judge, the Atlanta, Birmingham & Atlantic Railroad Company was placed in the hands of receivers, Henry M. Atkinson and Preston S. Arkwright, of Atlanta, Georgia. Sub sequently, to-wit: March 19th, 1909, PrestonS. Ark-
23

wright resigned his appointment as receiver and Samuel F. Parrott was appointed in his stead.
The Atlanta, Birmingham & Atlantic Railroad Company at the time of appointment of the receivers owed the State of Georgia $28,394.00 as State taxes; the several counties through which said road runs, $37,772.68; the several cities in this State through which said road runs, $11,719.42; and the school districts $3,136.57, together with interest from January 1st, 1909.
On June lOth, 1909, the intervention of the State of Georgia was heard before Judge Pardee in Atlanta, and the judge passed an order directing the receivers to pay the taxes set out in the intervention.
The receivers, on July lOth, 1909, in pursuance of said order paid into the State T'reasury the sum of $29,498.42, as principal and interest of taxes due the State by the Railroad Company. Taxes due the counties, municipalities and school districts were sent direct. The total taxes paid by the receivers, $81,834.88.
STATE OF GEORGIA VS. CHATTANOOGA SOUTHERN RAILWAY COMPANY.
The a!bove company was placed in the hands of a receiver during the year 1908, owing taxes to the State of Georgia and the County of vValker for the years 1907-08, to-wit: $1,551.91 and $1,561.44. An intervention was filed with the receiver in April, 1909 and direction was given the receiver to pay the taxes, which were duly collected and turned into the State Treasury.
24

CARSWELL, ET AL, VS. WILLIAM A. WRIGHT, COMPTROLLER-GENERAL.

This was a petition filed in Richmond county to

restrain the collection .of the taxes imposed upon

dealers in beverages in imitation of beer, wine, ale,

whiskey, etc. The judge of the Superior Court of

Richmond County refuS'ed the injunction and an ap-

peal was taken to the Supreme Court of Georgia.

The Supreme Court of Georgia affirmed the judg-

ment of the Court below.



There are several Federal questions raised in the

petition and Ron. C. E. Dunbar, representing Cars-

well, et al., declared his purpose of carrying the case

to the Supreme Court of the United States. Recently

it was suggested that if the State would pay certain

accrued costs amounting to sixty odd dollars, that

he W{)uld advise his clients to dismiss the appeal and

pay up the taxes due. In view of the fact that there

is $11,000 of money involved and that an appeal to

the Supreme Court of the United States would in-

volve delay possibly of a couple of years, I have ad-

vised that the State will pay the cost and end the

litigation.

GEORGIA RAILROAD & BANKING COMPANY
VS. WM. 4. WRIGHT, COMPTROLLER-
GENERAL, ET AL.
This case involves the construction of the Georgia Railroad charter and especially Section 15 thereof
25

relating to taxation. It was the contention of the State that the tax provision in this charter was a covenant with the stockholder and not one with the corporation. That is to say it limited the tax rate on the shares of stock in the corporation and that there was no covenant relative to taxing the property of the corporation. It was the further contention of the State that if the covenant was with the railroad company that it ~as limited to property not exceeding $4,156,000, the original capital stock and that the excess of property over and above this amount of money was taxable at the regular ad valorem rate. It was further insisted by the State that 440 shares of stock issued in the year 1868 should be taxed at the market value of said shares as representing that much property subject to ad valorem tax. It was further contended that the Washington Branch was subsequently acquired properly and was not protected by the charter contract.
This case was recently argued and decided by the Suprem~ Court of the United States. The contentio;:l of the State was upheld as to the shares of stock and as to the Washington Branch. In other respects the State's contentions were oYerruled. Since the rendition of this judgment the Comptroller-General has called upon the Georgia Railroad & Banking Company to return the property subject to tax'1tion and at the present date (May, .1910) the question of the value of the property is now in controversy between the Comptroller-General and the Railroad Company.
26

THE ST1ATE OF GEORGIA BY JNO. C. HART, AT~TORNEY-GENERAL VH. NEAL BANK.
1T'his case was reported in my last report but one branch of it had not then been decided. It will be remembered that the Neal Bank was placed by me in the hands of a receiver under the Act approved August 22, 1907, esta;blishing a Bank Bureau in the Treasury Department of this State. This Act provided when a bank was adjudged insolvent that the Attorney-General sho-uld institute proper proceedings in _the proper -court for the purpose of having a receiv~r appointed t'O take charge of such bank and to wind up the affairs and business thereof for the benefit of its depositors, creditors and stockholders.
This bank was placed in the hands of a receiver at a time when the State had on deposit the sum of $204,373.98. I filed an intervention on behalf of the State setting up that it was a preferred creditor as' to this amount and aske'd the court to direct the receiver to pay over to the State Treasurer this money. Objections were filed by various creditors, but the court adjudged that the State was entitled to a prior lien on the amount deposited by Hon. R. E. Park, T'reasurer, in the bank, which at the time was a State Depository, but withheld judgment as to the amount whi'ch had been placed in the bank by Mr. ]"'loyd, tax--collector of DeKalb county. Appeal was taken to the Supreme Court by the objectors and creditors of the bank, but under the judgment of the Supreme Court there has been collected the sums of money_ deposited by T'reasurer Park and Mr. Floyd, tax-collector.
27

There is a small balance still in the bank to which the Sttae claims a priority, placed there by Hon. C. J. Wellborn, State Librarian and W. S. Yeates, State Geologist.. I hope to finally reeover these amounts as well.
STATE OF GEORGIA VS. TENNESSEE COPPER CO., ET AL.
While this report is intended to deal with matters transpiring last year, yet in view of the fact it has been unavoidably delayed and further because of the importance of this litigation, I have thought proper to include a teport from Dr. Jno. M. McCandless, former State Chemist, who has been eonnected with this litigation since its inception. This report I here attach.
It is unneeessary for me to go into detail relative to this litigation. Suffice it to say the State of Georgia because of injury to the public. domain instituted its original petition in the Supreme Gourt of the United States by its Attorney-General, seeking relief from damage and injury to its citizens of long standing in forcing the installation of proper appliances on the part of the eopper companies to convert the poisonous gases into sulphuric acid and in that way prevent their spread and consequent destruction to crops, forests, vegetation, etc. The Supreme Court of the United States after argument entered up judgment as follows: ''If the State of Georgia adheres to its determination there is no alternative to issuing
28

an injunction, after allowing a reasonable time for the defendants to complete the structures that they now are building and the efforts that they are making to stop the fumes,'' and a decree was taken accordingly at the October term, 1908, of the Supreme Court of the United States.
It will thus be seen that more than two years have elapsed since the rendition of this decree and here and there there has been ~orne expression of dissatisfa'ction over my delay to ask for the injunction, but my defense has been and is, if one is necessary, that the right to permanent injunction was conditioned upon the State giving reasonable time to the copper companies to install appliances to eliminate the poisonous gases, and I have felt sure the copper companies had as rapidly as men and money could accomplish the results, were endeavoring to do so. It means a great deal, not only to the people of Georgia in the immediate vicinity of these works, but the entire State, and the South as for that matter, especially the agricultural interests, to develop this industry.
In this connection I will say also, I was carrying out the resolution passed by the General Assembly that I should show as much liberty as possible towards the copper companies in the extension of time for completing their structures, not inconsistent with the interests of the people of Georgia.
The report of Dr. McCandless, to which I refer, I think, is justification of the course pursued by me, as he predicts in the near future, if not at this mo-
29

ment, there need be no further apprehension of injury from the operation of these smelters.
The case is remarkable in that its final result will prove beneficial to the litigants as well as the public generally; for as a by-product the sulphuric acid will prove a source of great revenue to the companies and the public, especially the farming interests has been and will continue to be benefited in that by thb manufacture of sulphuric acid, which enters so largely into the manufacture of fertilizers, this commodity of so general use in the South, has been greatly cheapened.
ATLANTA, GA., June 18th, 1910.
HoN. JNo. C. HART, Attorney-General,
State Capitol.
Dear Sir: In accordance with your directions I left Atlanta on the afternoon _of the lOth of June to report on the conditions obtaining at Copper Hill and Isabella, Tennessee, and in the surrounding country, as touching the progress of the work at the plants of the Tennessee Copper Co., and the Ducktown Sulphur, Copper & Iron Oo. Ltd., and also as to damage to crops and timber.
Arriving at Blue R.idge I drove through the country from that point to Copper Hill with a view to observing conditions along the route. The season of the year was propitious for observation, being
30

some two months later than on my previous visit which was made during the :first week in April,.1908. Vegetation was far more advanced than it was at that time, (April, 1908), the trees being in full leaf and growing crops looked green and healthy. Whilst . the evidwces of past danger in the shape of dead trees were to be observed rom time to time along the route, I could see no evidence of recent injury. As I remarked in a previous report, the leaves of a tree are its lungs and they are quite susceptible to injury from sulphurous acid gases, such as characterize the smoke produced at copper ~melters. Injury of this nature produced by the absorption of the gases, soon makes itself evident in the "scorching'' and discoloration of the leaf, and the :final loss of foliage by the tree, as though it had been killed by sudden cold or frost. At no point along my route going to Oopper Hill, nor returning by a different route, by way of Mineral Bluff, did I observe such injury. However, I did not confine myself to personal observation alone but stopped at various points a:o.d made inquiries of citizens and farmers along the road. I asked one very substantial farmer to express his sentiments, He stated that he had noticed little or no smoke this year and had suffered no injury either to his crops or timber. He owns some eight hundred acres of land and in the past two years has sold off two farms. I inquired whether the value of his land had depreciated in consequence of the smake nuisance. He replied that he had no reason to be dissatisfied with the sales he had made. He stated that he had noted a consiqerable improve-
31

ment this year over last year. A number of other citizens of the county were interviewed at different points along the road, some as near as two a:ad a half miles from the copper smelting works. They all agree s~bstantially in their statements, that they had noticed little or no injury either to crops or timber so far this year. A few claimed some damage, but were not specific. They all agreed however, that the time for the worst damage had not yet arrived, that they feared the greatest damage during the months of July, August and part of September.
On the long drive ba:ck from the smelters, taking a different route, returning to Blue Ridge by way of Mineral Bluff, I made the same observations. There was absolutely no evidence of damage to timber or crops which could have occurred this year, though there was abundant evidence of past damage. On this route I also interviewed a number of parties and asked them to express their sentiments in regard to the damage sustained. Some of them claimed damage, but not so much as last year, and I noted that quite a number of those interviewed stated that while the damage to their crops was not so great as it had been that they thought the soil had been injured by the smoke and its productive power lowered. Whilst this idea is quite natural for a farmer whose crops do not turn out as well as he had hoped for, I am sure it has no foundation in fact. I have made as part of my professional work quite a study of agricultural 'chemistry and of the chemistry of soils, and can confidently assert that' whilst a very small quantity of sulphurous gas is sufficient to de-
32

5troy the foliage of a tree, that these gases, except in enormous quantity, and of a high degree of concentration, could have no deleterious effect on the soil. When condensed upon the surface of the soil, or carried into it by rain, they would find therein a sufficient quantity of earthy bases to neutralize their acid chamcter, and in any quantity in which they would be likely to be deposited on the soil would really be more beneficial than otherwise, probably rendering available insoluble elements of plant food.
Arriving at Copper Hill, I visited the plants of the Tennessee Copper Co., and was courteously received by their general manager, Mr. Emmons, who afforded me every opportunity for a full inspection of the works. The company are pioneers in this work. There is no other great copper sm&lting works in the world which has attempted to condense its vast volume of sulphur gases into sulphuric acid, or succeeded in the attempt. The company therefore has had no successful example to copy, and was compelled to blaze its own way, so to speak. In doing this they are expending not only thousands, but hundreds of thousands of dollars. Naturally they have made mistakes, and costly mistakes in construction, but when recognized they have not hesitated to tear down costly construction and replace it with that which experiment had shown to be better adapted to the object in view, viz., the condensation of a vast volume of gases of irregular composition (and containing considerable carbonic acid, a very troublesome ingredient) into sulphuric acid. During all this period of experiemnt, of tearing down
33

old construction and eerction of new, they have continued to make acid in a part of the plant which ~was fairly adapted to the purpose, and have produced a large quantity of sulphuric acid. As a result of my inspection I was strongly impressed by this fact: that the company and Mr. Emmons' are doing all in their power to reduce to a minimum any damage to the State of Georgia. To this end when the winds have been from such a direction as to blow any uncondensed gases 'Southward, they have shut down such of their furnaces as produced more gas than they could condense with their effective chamber capacity, so as to refrain from doing any avoidable injury to the tState of Georgia. When the winds changed, so as to blow the gases away from the State of Georgia, they ha:ve urged their furnaces to the full, and their records show that during the period from May to August, 1909, which covered the months during which the greatest damage is claimed in Georgia, they only smelted 72 per cent. of the amount of ore which they did during the same period in 1908. Notwithstanding this fact they produced from May to August, 1909, over three and a half times as much acid as in the same period of 1908. ThiS' being due to increased condensing power at the plants and the application of the valuable experience gained from the costly mistakes of the previous year.
Before leaving the plants, without any previous announcement of my purpose, I requested the chemist of the company to make an analysis of the gas, passing from the tall stack out into the air. Under
34

my personal supervision and with my assistance, the analysis was made and the result showed less than one-tenth of one per cent. of sulphurous acid in the waste gas passing into the open air. This amount of gas when diffused into the air from the top of the tall stack could do no possible injury. It is true that all of the furnaces were not in blast at the time, but the chemist of the company stated that his analyses of the gases from the stack for the past year varied from less than one-tenth of one per cent. to one per cent. If we take the average escape of sulphuric acid gas at one-half of one per cent., this would be equivalent to 2.8 grains of sulphuric and hydride (803) per cubic ft. of air. The English law, known as the Alkali Act, permits the escape from the exit of sulphuric acid factories, of as much as 4 grs. per cubic ft. Of course it' is proper to state that the gases whrch pass through the tall stack are not the only sulphur gases which escape into the air. Considerable quantities of gas escape around the top of the furnaces also, but I am convinced from careful observation of the new designs for the new furnaces1 to prevent escape of the gases at those points, and also from observation, of the new construction now in progress, consisting of gigantic Glover and Gay Lussac towers', of the great settling chamber for catching the clouds of dust from the furnaces, of the heavy steel bridge, supporting a :fire brick flue of 300 square feet sectional area for conducting the hot gases into the towers, of the enormou:, cooling chambers to cool the hot gases before they are admitted into the almost inconceivably vast cham-
35

ber spaces, the whole when completed compnsmg some 4,600,000 cubic .feet, then I am amazed at the audacity of the conception of the engineer in 0harge, Mr. Wedge, and at the :financial courage of the company, which stands behind him to carry out those conceptions. A feeling of certainty takes possession of me . that when the whole gigantic task has been completed that the company will condense practically all the gases coming from their smelting furnaces, and that the waste gas' escaping into the atmosphere will be little if any greater than that escaping from the exit pipes of the acid factories in the suburbs of Atlanta, and our other Southern cities.
What has been said.of the plant of the Tennessee Copper Co., and its engineer, Mr. Wedge, may also be repeated without going into further details, concerning that of the Ducktown Sulphur, Copper & Iron Co., and its engineer, Mr. Heinz, except that their plant is on a smaller S'cale than the other, though vast in 'COmparison with ordinary plants. In some respects they have a more difficult proposition than the Tennessee Company has, their ore containing only about 16 per cent. sulphur, against 25 per cent. of the T'ennessee Company.
I must admit that when I :first advised you to insist upon the companies either shutting down their works, or condensing their gases into sulphuric acid, that my belief was that if they succeeded in condensing their gases sufficiently to abate the nuisance, that the product might perhaps pay the expense of the work, but that it would never prove a commercial >~11ccess. I now wish to revise that opinion and to
36

predict that the acid product of these companies will not only pay. for itself in the near future, but also yield a handsome revenue.
In my last report to you I stated that ''The question should be broadly investigated as to whether there now exists any serious danger of wide spread destruction of forest areas, thereby inviting erosion and menacing the sources of our water-courses, thus damaging the commonwealth as a whole, or whether local and individual injury alone is threatened. As I take it the crux of the whole question lies here.''
In order to bring more vividly before your mind the conditions which existed at the beginning of this litigation I will quote a few paragraphs from the affidavit which I made for you to use in your argument before the Supreme Court of the United States:
"The new furnaces in course of installation by the Tennessee Copper Co., will raise, so affiant is informed, the capacity of said works from the present output of about 12,000,000 lbs. of copper per annum to 25,000,000. If from an ore carrying a little less than 3 per cent. copper we estimate an efficiency of extraction of 2 per cent., it would require 1,250,000,000 pounds of ore to yield 25,000,000 pounds of copper. The ore is reported to contain 30_per cent. sulphur, but if the sulphur is placed at 20 per cent.,
and if we all-ow that 14 of this sulphur remains be-
hind in slag and matte (which is probably an excessive estimate) and the remainder is thrown out into the air in the form of sulphur dioxide, we could have 375,000,000 pounds of sulphur dioxide belched into
37

the atmosphere from these furnaces. Supposing the air now to be contaminated with it in the proportion of one to 100,000, we should have 495 trillion cubic feet of air, or 177,557 square miles of air 100 feet in thickness emitted for a period of one year. For a period of one day the atmosphere for a thickness of one hundred feet would be contaminated for 486 square miles, or in a circle with the furnaces in the center, the impregnated atmosphere would extend twelve and a half miles in every direction. From the new furnaces alone o fthe T'ennessee Copper Co., estimating their capacity at 12% million pounds of copper 'per annum, enough sulphur dioxide would be generated daily to render noxious 243 square miles of atmosphere 100 feet thick, and if the old works both of the Tennessee Copper Company, and the Ducktown Company, were abandoned and left idle, and only the new furnaces of the Tennessee Copper Co., now in course of completion, operated, enough sulphur dioxide would be generated to contaminate the atmosphere to a thickness of 100 feet within a circle of territory 17.6 miles in diameter: at a strength of one to 300,000 which is very destructive to vegetation, the diameter of the circle would be increased to a little orver 22 miles. It is evident from a consideration of these facts that in course of time
the air of the habitable globe would be rendered irrespirable by plants and animals, were it not for the solubility of sulphur dioxide in water and the further fact that the sulphur dioxide is washed out of the air by rain and carried to the sea through the UHderCOUrSeS.''
38

The great danger which then surely and certainly threatened us is passed, and no unprejudiced and impartial observer can now go over the ground and after taking in the situation, claim that the commonwealth as a whole, the State as a State, stands in any real danger of forest destruction from the waste gases of the copper plants. Therefore it seems to me, the State's interest as a State has been satisfied and the question of injury if any, is now simpl)l one between the individual who may claim damage and the companies. The marvelous work accomplished by the scientific engineers of these wonderful plants supported by the courageous and unflinching expenditures of the companies in the face of appalling difficulties, has converted me from ~omething of a pessimist to an enthusiastic optimist.
When we think of the thousands of tons of poisonous and destructive gases which a few years ago flowed like rivers o fdeath along the wooded ridges and in the peaceful valleys of our fair State, threatening the sources of our watercourses and the ultimate prosperity of a whole section, and see these gases converted within the past year or two into sulphuric acid enough to produce over 300,000 tons of acid phosphate, worth over three million of dollars, to be applied to the restoration of the fertility of our worn Southern soils and to yield bounteous crops of cotton, corn and wheat, then, sir, we have cause for thanksgiving and appreciation.
I beg to be allowed to congratulate you, sir, upon the glorious victory which you have won for the State of Georgia before that august tribunal, the
39

Supreme Court of the United States, upon the fruits of that victory and upon the manly attitude you have since maintained in refusing to yield to an unreasoning popular clamor, scorning political allurements and holding honor, justice and the true interests of the State above and beyond all temptation. Your work will live after you and crown you and your people will call you blessed. I rest in the confident belief that you will permit nothing to interfere with the good work now going on until it has been brought to a happy and successful termination.
Respectfully submitted, (Signed) JNo. M. McCANDLEss.
In concluding this report, I beg to make public acknowledgement of the very able service rendered me by my stenographer, Lewis R. Waddey;
Respectfully submitted, JoHN C. HART,
Attorney-General.
40

OPINIONS
March 17th, 1909.
GovERNOR HoKE SMITH,
State Capitol.
DEAR Sm :-Replying to the letter of the 16th inst. written by the Secretary of the Executive Department requesting that I shall advise you whether in my opinion the balance of the money appropriated by the Act approved August 20th, 1906, to enable the trustees of the Georgia Academy for the Blind to complete the erection and equipment of the new buildings for the Academy according to the original design, and for other purposes, is now available.
This balance is $5,000. A request is now made by the president of the board of trustees that a warrant be issued by you on the State Treasury for this amount in favor of T. D. Tinsley, T'reasurer of the Georgia Academy for the Blind.
If there is any obstacle in the way of complying with this request it is to be found in the Political Code, 199, sub-section 15. In referring to the duties of the State T'reasurer this section reads as follows: ''He'' (the Treasurer) ''shall not pay any appropriation due and not called for within six .months after the expiration of the :fiscal year for which it is appropriated, but it reverts to the gen-
41

eral fund in the Treasury.'' The Act of August

20th, 1906 (See Acts 1906, p. 14) appropriates $65,-

000, or so much thereof as may be necessary for the

purpose of completing said new buildings for the

Georgia Academy for the Blind according to the

original plan and design and tq provide a thorough

system of sanitary sewerage therefor, to grade and

improve the grounds, to enclose the same with a

substantial wall or fence of some durable material,

to purchase the necessary new furniture; and for

all other such purposes as the installation and

equipment of such new buildings may render neces-

sary."

This is not an appropriation for the support of

this institution for any particular time, but as

noted an appropriation for a particular purpose.

The provision just quoted has reference to appro-

priations for "the fiscal year" and hence contem-

plates that it shall be drawn from the Treasury with-

in a definite time. The Act in question, appropri-

ating $65,000, of which the $5,000 now claimed is

part, was for a particular purpose and had no ref-

erence to time at which the building should be com-

pleted. I assume this balance is to be used by the

Treasurer of the Academy for the Blind for the

purpose appropriated. This being true in my opin-

ion this money is now available and you may !,aw-

fully issue your warrant in favor of Mr. Tinsley <as

Treasurer of the Georgia Academy for the Blind.

Very respectfully,

c. JOHN

HART,

Attorney-General.

42

January 19th, 1909.
GovERNOR HoKE SMITH, Capitol.
DEAR SIR: Relative to your verbal inquiry for an official opinion, would the Ordinary of Bibb county be authorized to allow Mr. Felder his compensation for representing the State in the collection of taxes imposed upon dealers in beverages in imitation of or substitute for beer, ale, wine, etc., out of money collected by him, I beg to advise:
I think it would be perfectly regular to tax the fund collected with the payment of this fee as part of the cost of collection-Mr. Felder's bill being first approved by your Excellency. The fund should bear the cost of collection instead of paying it out of the ''Contingent Fund.'' The Ordinary should then send to the Treasurer the money collected less the cost _of collection.
I beg to remam, Very respectfully, JOHN C. HART, Attorney-General.
April 27th, 1909.
GovERNOR HoKE SMITH, State Capitol.
DEAR SIR: Replying to your request for my off1n1al opinion relative to the eligibility of Hon. C.
43

Murphy Candler to the office of Railroad Commissioner of this State, I beg to advise :
Mr. Candler was elected representative from DeKalb county in October, 1906. He was again elected in October, 1908. He was appointed Railroad Commissioner by you in March, 1909. He had not qualified as representative elect at the time of his appointment as Railroad Commissioner.
The provisions of the Constitution bearing on the subject are only two. Article 3, 4, paragraph 1, of the Constitution, (Code 5749) provides: "The members of the General Assembly shall be elected for two years and shall serve until their successors are elected.'' Members of the General Assembly are elected in Georgia on the first Wednesday in October. Mr. Candler's first term of office therefore ended in October, 1908. His present term of office began with the election in October, 1908.
I now quote so much of Article 3, 4, paragraph 7 of the Constitution as is material to this discussion: '-'Nor shall any senator or representative after his 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 emolument annexed thereto during the time for which he shall have been elected.'' The inhibition against ap-pointment or election to office it will be noted is restricted and limited to the time ''after his qualification as such." Had he qualified he would have been ineligible, but not having qualified, the provision has ll.O application.
44

The evil which the Constitution had in mind in inhibiting an appointment by the Governor or election by the General Assembly of members of the General Assembly to office, was to prevent members from creating offices hoping to be elected or appointed thereto, hence he was made ineligible ''after his qualification." Qualification means to take the oath of office. When he does this the Constitution declares that he shall not be appointed by the Governor nor elected by the General Assembly to any office during the time for which he is elected, but there is no inhibition in the Constitution to his appointment prior to his qualification. On the contrary there is the express provision limiting his ineligibility ''after his qualification as such.''
There is no doubt as to his eligibility to the office of Railroad Commissioner of this State.
Yours very truly, JOHN 0. lliRT, A ttorney~Generra.Z.
June 16th, 1909.
GovERNOR HoKE SMITH,
State Capitol.
DEAR Sm :-Replying to your letter of even date wherein you ask for my official opinion whether the Act approved August 17, 1903, entitled "An Act to provide for the abolition of trials or impositions as to the insanity of persons accused of capital of-
45

fenses after a conviction thereof, and providing a method of disposition of such cases, and for other purposes,'' is applicable where a person has been accused and convicted of murder with recommenda,tion to life imprisonment by the jury and sentenced accordingly by the judge.
It is my opinion that the Act is not applicable in such case. This Act had for its purpose the discouragement of the practice of filing applications to inquire into the insanity of a person convicted of a crime and sentenced to be hanged where such applications had no other purpose in view except to delay the sentence. It does not repeal 1047-8 of the Penal Code relative to the issue of insanity after conviction and sentence except as it may conflict with those provisions relative to persons charged with a capital offense and the sentence of capital punishment is imposed. These two sections of the Cod~ must be construed in pari materia with the Act approved August 17, 1903. While murder is a capital offense in this State it is not in fact capitally punished when the verdict is a recommendation to imprisonment in the penitentiary and the sentence of the judge follows the recommendation. In such case if satisfactory evidence is offered to the Governor that the convict has become insane subsequent to his conviction, the Governor may within his discretion have such person examined, etc. This applies, as stated, only where the sentence of capital punishment had been imposed and not generally. As to persons although convicted of capital offenses
46

but upon whom capital punishment has :riot been imposed, the sections of the Code heretofore referred to are still of force.
I am of the opinion, therefore, that you as Governor would have no authority under the Act of 1903 to have an examination made of a convict where capital punishment had not been imposed, although the crime may be classed as a capital offense.
Yours very truly, JoHN C. HART, Attorney-General.
May 12th, 1909.
GovERNOR HoKE SMITH,
State Capitol.
DEAR SIR: Mr. Benj. F. Perry, Chief Clerk in the Treasury Department, has called to my attention the omission of the late Hon. Robt. E. Park, State Treasurer, to sign officially certain registered bonds issued in lieu of certain other coupon bonds, a list of which is hereto attached
These bonds bear your signature as Governor of the State of Georgia, and of Hon. Philip Cook, Secretary of State, but as stated, not signed by Hon. Robt. E. Park as Treasurer, for the reason I am informed they were issued while he was in New York in search of health and died on his return to Georgia. These bonds are none the less valid ob-
47

ligations of this State, but the omission of the Treasurer to sign is an irregularity which should now be cured. I suggest, therefore, that you communicate the fact of tllis omission on the part of the late Treasurer to sign to the General Assembly to the end that they by appropriate resolution will direct the present Treasurer to sign now for them.
Yours very truly, JoHN C. HART, Attorney-General.
(Enclosure.)
- List or Registered Bonds issued in lieu of Coupon Bonds, on April 21st and 28th, 1909, but not signed by R. E. Park, State Treasurer, on account of his absence from the office and illness terminating in death on May 7th, 1909.
Five Bonds, as follows, bearing date of April 21st, 1909, of the denomination of One Thousand Dollars, three and a half per cent. interest, in narp.e of Lumber Underwriters, Eugene F. Perry, Attorney in fact, to-wit:
No. 355, due 1931, for Coupon Bond No. 1460, Act approved October 23, 1889.
No. 356, due 1932, for Coupon Bond No. 1535, Act approved October 23, 1889.
No. 357, due 1932, for Coupon Bond No. 1539, Act approved October 23, 1889.
No. 358, due 1932, for Coupon Bond No. 1543, Act approved October 23, 1889.
48

No. 359, due 1932, for Coupon Bond No. 1581, Act approved October 23, 1889.
Sundry Bonds as follows, bearing date of April 28, 1909, issued in the name of Empire Life Insurance Company, Atlanta, Ga., to-wit: Six Bonds of the denoJTiination of Five Thousand Dollars, four and one-half per cent. interest, due first day of July, 1915, as follows:
Numbers 190, 191, 192, 193, 194, and 195, for Coupon Bonds numbers 92, 113, 122, 130, 134, 216, 217, 218, 1059, 1215, 1216, 1223, 1224, 1240, 1247, 1836, 2061, 2101, 2102, 2251, 2252, 2257, 2303, 2703, 2741, 2914, 2915, 3050, 3051, 3303, of the Denomination of One Thousand Dollars, issued under Act approved December 23, 1884.
Four as above of the denomination of One Thousand Dollars, numbers 756, 757, 758, and 759, due July 1st, 1915, for coupon Bonds numbers 3304, 3305, 3306, 3307, issued under Act approved December 23, 1884.
One Bond of the denomination of Five Thousand Dollars, three and one-half per cent. interest, due January 1st, 1918, for coupon Bonds numbers 176, 177, 178, 179, and 180, under Act approved October 23, 1889, said Registered Bond being number 187.
Two Bonds of the denomination of One Thousand Dollars, three and one-half per cent. interest, . due January 1, 1918, for Coupon Bonds numbers 188 and 193, under Act approved October 23, 1889; numbers of Registered Bonds being 360 and 361.
One Bond of the denomination of One Thousand
49

Dollars, three and one-half per cent. interest, number 362, due January 1, 1919, for Coupon Bond number 275, under Act approved October 23, 1889.
Four Bonds of the denomination of One Thousand Dollars, three and one-half per cent. interest, numbers 363, 364, 365 and 366, due January 1, 1920, for Coupon Bonds numbers 345, 382, 386 and 387, under Act approved October 23, 1889.
Two Bonds of the denomination of One Thousand Dollars, three and one-half per cent. interest, numbers 367 and 368, due January 1, 1926, for Coupon Bonds numbers 974 and 985, Act approved October 23, 1889.
And two Bonds of the denomination of One Thousand Dollars, three and one-half per cent. interest, numbers 369 and 370, due Janu;:try 1, 1927, for Coupon Bonds numbers 1074 and 1075, Act approved October 23, 1889.
There being twenty-seven Bonds aggregating the amount of Fifty-Five Thousand Dollars.
October 27th, 1909.
GovERNOR Jos. M. BRowN,
State Capitol. DEAR Sm :-Replying to your inquiry recently submitted, viz: ''Is it the duty of the Governor to designate the depository in which the tax collectors shall deposit the public money raised by taxation, or is it sufficient for the Governor after naming the
50

depositories to leave it optional with the officer in which depository he will deposit the public money"
This question I assume will arise only where there is in a city two or more depositories. The Act approved August 17, 1903, in substance authorizes the Governor to name an additional depository in every city having a population of 6,500 and over where by previous Acts a single depository had been established. It is provided by ~993 of the Code that the Governor at the time of appointing a depository shall designate the counties whose tax collectors shall place the deposits of the. county therein ''and said tax collectors shall pay into no other depository than the one named by the Governor." Construing the Act of 1903, supra, with the balance of the Code on the subject of State depositories, it is evident where a depository is named that it is the duty of the Governor to designate the county or counties which are to deposit in the depository so established.
The reason why the Governor should designate the depository is that he and the Treasurer may keep up with the State's deposits, because they are both charged with the duty of seeing that the deposits do not exceed in amount a certain limit. This could not be done if it was left to the tax collector to deposit in either depository which for some reason or another to him is preferable. The Act of 1903, supra, providing for the establishment of two depositories in cities of a certain population, does not indicate any change of policy on the part of the Legislature in the respects just mentioned. If it is left
51

with the tax collector to choose the depository the officers of the State would be in doubt, if not in confusion, as to where the revenue was in fact deposited. The tax collector might divide the funds equally between the depositories, or might give all to one and none to the other, or deposit with this one this month and with the other the next, which would work unutterable confusion in the Treasury Department of this State and render it impossible for the Governor and the Treasurer to keep up with the deposits to the end that they were not excessive in any particular bank.
I think, therefore, that while under the Act of 1903 in cities having a population of 6,500 and over and in which a depository has heretofore been established, that the Governor may establish another, but whenever he does so he should designate the particular depository in which the tax collector shall deposit the funds.
I remain, Yours very truly, JOHN C. ,HART, Attorney-General.
December 7th, 1909.
GovERNOR J os. M. BRowN, State Capitol.
DEAR SIR:-Referring to your letter of even date enclosing one from Mr. Chas. B. Lewis, Cashier of the Fourth National Bank of Macon:
52

As I understand the statement of fact in Mr. Lewis's letter there is already established in the city of Macon two depositories, to-wit: The American National Bank and the Commercial and Savings Bank. The first depository is for the public monies . arising by taxation and otherwise in Bibb County, while the latter is the depository for Jones and Crawford Counties.
There was an Act passed August 17th, 1903, (See Acts of the General Assembly 1903 p. 28) which amends 982 of volume 1 of the Code of 1895 which authorizes ''That in each and all of the cities named a:bove in this section and in each and all the cities in which State depositories have been established by subsequent amendments to the foregoing section, having a population of sixty-five hundred and over, the Governor may name and appoint not more than two solvent chartered banks of good standing and credit, which shall be known and designated as state depositories.'' I do not think this proviso is sufficiently broad to authorize the appointment of the third depository. It may be true that it was the legislative intent to provide for two depositories for a city of the population named notwithstanding there are other depositories established in the city for additional counties, but the reply to that is the words used by the legislature must be given their ordinary significance, and this language is unequivocal, restricting the depositories to "not more than two
53

solvent chartered banks of good standing and credit . . . . " To appoint a third one would be to
violate this language. I beg to remain, Yours very truly, JoHN C. HART, Attorney-General.
December 17th, 1909
GovERNOR Jos. M. BRowN,
State Capitol.
DEAR Sm : - I am in receipt of your letter of even date as follows: "The term of office of the judge of the city court of Baxley expires December 20th, ~909. I am requested to appoint a judge of this court. Before acting upon this request I would like to have your opinion as to whether under the law the Governor is authorized to make an appointment in this case.''
In reply to this request I beg to advise : T:he last Act of the General Assembly on the subject of providing a judge for the city court of Baxley may be found in the Acts of 1909 page 203. By reference to that Act it will be observed it is to go into effect ''on the first day after the expiration of the term of office of the present judge of the city court of Baxley.'' I note from your statement of fact that his term expires December 20th, 1909. That is to say on December 21st, 1909, this being the "first day
54

after the expiration of the term of office of the present judge of the city court of Baxley,'' there will be a vacancy in the office. The Act of August 13th, 1909, 1, provides substantially that the judge of the city court of Baxley ''shall be elected by the qualified voters of the county of Appling at the last general election for county officers to be held before his term of office shall begin,'' and provides that his term of office shall be one year, "and all vacancies shall be filled by appointment of the Governor for the residue of the unexpired term, such appointment being subject to the approval of the Senate'' etc. So, the status of the office of judge of the city court of Baxley on the 21st day of December, 1909, will be, an office without a judge and a vacancy until the next general election in 1910; and the inquiry is, may you fill it by appointment.
The Act quoted is ''all vacancies shall be filled by appointment of the Governor for the residue of the .unexpired term.'' You should therefore fill by appointment the office of judge until the next general election for county officers, which will be October, 1910.
Yours very truly, JoHN C. HART, Attorney-General.
55

October 21st, 1909.
GovERNOR Jos. M. BROWN,
State Capitol.
DEAR Sm : - I am in receipt of your recent letter enclosing one from J. H. Emanuel, sheriff of Decatur County, relati~e to the State~'s duty in re L. G. Harding alias A. D. Oliver, for whom requisition has been made on you by the Governor of Mississippi. It appears from the statement of fact in the letter that L. G. Harding alias A. D. Oliver, stands charged and accused with two offenses committed in this State since his flight from Mississippi. The sheriff informs you that Oliver is endeavoring to give bond which has been assessed respectively at $100.00 and $300.00 for his appearance to answer these charges before the proper court in this State. The sheriff further inquires in view of Oliver's giving bond for his appearance in these two cases shall he release him from his custody and should he re-arrest him so as to surrender him to the Mississippi authorities'
This brings up the question whether or not as Chief Executive of Georgia it is your duty under this state of facts to honor the requisition of the Chief Executive of Mississippi. This question I think is answered by ~1272, volume 3, Criminal Code of Georgia, which reads as follows : ''If any person demanded as a fugitive from justice is at the time of such demand under prosecution for an offense against the laws of this State, the Governor shall
56

suspend his delivery until the issue is determined . as to his guilt, and if condemned, until he shall have suffered the penalty of the law imposed.'' It will be noted that so long as the prosecution for an offense committed in this State exists the Governor shall
suspend his delivery until the issue is determined. Should Oliver give bond it is none the less a pending prosecution against him in this State.
I should advise, therefore, that you follow the plain language of the section quoted and ''suspend his delivery until the issue is determined as to his guilt, and if condemned, until he shall have suffered the penalty of the law imposed." In other words, Oliver was entitled under the laws of this State to give bond for his appearance before the courts of this State to answer the State offenses and until these cases are tried and determined you should not surrender him to the Mississippi authorities.
I beg to remain, Yours very truly, JoHN C. HART, Attorney-General.
July 21st, 1909.
GovERNOR Jos. M. BROWN,
State Capitol. DEAR Sm ::_I am in receipt ~f your letter of July 12th accompanied by a letter from Hon. Lester C. Slade, of Columbus, Georgia, raising the questioP nt
57

the validity of the appointment of Mr. Neill by Governor Smith to the position of solicitor of the city court of Columbus for the term to begin October 17th, 1909. You request my official opinion thereon.
I gather from the statement of fact that the term of the present solicitor, Mr. H. H. Swift, will expire October 17th, 1909. Governor Smith, anticipating this vacancy has appointed Mr. W. Cecile Neill solicitor of the city court of Columbus, his term of office to begin at the expiration of Mr. Swift's term. The Senate of Georgia has confirmed the appointment of Mr. Neill and he has been duly commissioned to enter upon the duties of his office beginning October 17th, 1909. The fitness of Mr. Neill I understand to be conceded and the only question you raise is the validity of the appointment.
The following questions are pertinent and exhaustive of the inquiry: (1) Was there a vacancy in the office of solicitor at the time of the appointment of Mr. NeilH (2) May the Governor make the appointment anticipating the vacancy not occurring during his term of office~ (3) If the appointment was irregular is it cured by the confirmation of the Senate and the issuance of a commission by the Executive~ These questions will be discussed in the order raised
1. Was there a vacancy in the office of solicitor at the time ofthe appointment of Mr. Neill~
A vacancy exists when there is no person lawfully authorized to assume and exercise at present the duties of the office. Mechem's Public Offices and Officers p. 127. Tested by this rule there was no
58

v~cancy. There was at the time of the appointment

and is at present, a person lawfully authorized to dis-

charge the duties of the office and may continue to do

so until October 17th, 1909. The power of the Gov-

ernor to fill vacancies is granted by the Constitution.

See Article 5, section 1, paragraph 14 (Code 5817)

and is as follows : ''When any office shall become

vacant by death, resignation or otherwise, the Gov-

ernor shall have power to fill such vacancy unless

otherwise provided by law .

" It will be

noticed that this power to appoint is also limited to

the time when the office ''shall 'become vacant.'' The
Act approved October 11th, 1889, providing a solic-

itor for the city court of Columbus authorized the

Governor to appoint a solicitor of that court by and

with the advice and consent of the Senate and to hold

his office for the term of four years. ''All vacancies

in said office shall be filled by appointment by the

Governor for the remainder of the unexpired term

and when a vacancy occurs when the Senate shall not

be in session the Governor shall fill such vacancy by

appointment and shall submit such appointment to

the Senate at its next session thereafter.'' This

statutory provision does not undertake to go fur-

ther than the Constitution just quoted. The Gov-

ernor is authorized to fill a vacancy and there is' no

vacancy as long as there is a person in the office

authorized to discharge its duties. There is there-

fore no vacancy in the office of solicitor of the city

court of Columbus at present.

2. May the Governor make the appointment an-

59

ticipating the vacancy not occuring during his term of office?
A prospective appointment to fill a vacancy in a public office made by the person or body which as then constituted is empowered to fill the vacancy when it arises is in the absence of express law forbidding it a legal appointment and vests title to the office in the appointee . . . . but the appointing power can not forestall the rights and prerogatives of their own successors by appointing successors to offices expiring after their power to appoint has itself expired. '' Mechem's PUiblic Offices and Officers p. 133 and 134. The right of a Governor to anticipate a vacancy may be exercised only when the Governor anticipating the vacancy will be the Governor when the vacancy actually occurs. Governor Smith's term of office expiring before the vacancy occurs he could not, under tlle authority quoted "forestall the rights and prerogatives of his successor.''
3. If the appointment was irregular is it cured by the confirmation of the Senate and the issuance of a commission by the Executive1
If the appointment by the Governor was without authority and void, manifestly the action of the Senate is a nullity. The power of the Senate is at best but to confirm. If the appointment is illegal there can be nothing to confirm. The appointment is made by the Governor "by and with the advice and consent of the Senate, if the Senate be in session at the time of the vacancy.'' It takes both the Gov-
60

ernor and the Senate to make a valid appointment,

if the latter be in session at the time the vacancy

occurs. If the Secretary of State, or as for that.

matter, any one else lacking in authority, had sent

in an appointment to the Senate which was confirmed

by the Senate, it is plain the appointment would be invalid. It is equally plain if the Governor sends

in an appointment without authority to make it the

fact that the Governor sent it in puts the appoint-

ment upon no higher plane. While confirmation by

the Senate is essential to the validity of an appoint-

ment by the Governor, where there is no appointment

for lack of authority, there can be nothing to confirm.

Nor does the fact that the Governor has commis-

sioned a man to office become conclusive of his right

to fill it. The commission is but the evidence of ap-

pointment, the title so .to speak, and sufficient per-

haps to raise the presumption of a valid title to the

office, but it is a disputable presumption and may be

overcome by evidence aliunde.

ln conclusion I am of the opinion that the ap-

pointment by Governor Smith of Mr. Neill to the

office of solicitor of the city court of Columbus has

been inadvertantly made, 1'\nd for the reasons above

urged, invalid.

I beg to remain,

Yours very truly,

c. JOHN

HART,

Attorney-General.

61

July 8th, 1909.

.His ExcELLENCY, HoN. Jos. M. BRowN, Governor,

State Capitol:

DEAR Sm :-Replying to your letter of July 2nd in which you ask my official opinion on the following inquiry: ''Does the law authorizing the Governor to grant pardons require that the application for pardon shall first be passed upon by the Prison Com-
mission~"
The power to pardon is conferred upon the Governor by the Constitution of this State and under Article 5, Section 1, Paragraph 12, (Code 5815) and is as follows:

''He shall have power to grant reprieves and

pardons, to commute penalties, remove disabili-

ties imposed by law and to remit any part of a

sentence for offenses against the State after con-

viction, except in cases of treason and impeach-

ment, subject to such regulations as may be pro-

vided by law relative to the manner of applying

for pardons.

''

This section of the Constitution in express terms confers upon and lodges the pardoning power alone with the Governor except as the Legislature may by law provide how applications may be made.
''A pardon is an act of grace proceeding from the power entrusted with the execution of the laws which exempts an individual on whom it is bestowed from punishment the law inflicts for a crime he has

62

committed.'' The foregoing is an extract from the

opinion of Chief Jpstice Marshal in U. S. vs. Wilson,

32 U. S. Lord Coke defines pardon as a work of

mercy whereby the King either before or after conviction forgiveth an offense. ''There are many

reasons why a power of this kind should be confided

to the highest executive officer. It involves a wide

discretion.

. It is therefore of the highest

importance to the public that this power should be

carefully exercised and that the fullest responsibility

should rest upon the person to whom it is confided." Rich vs. Chamberlin, 27 L. R. A. p. 574.

In passing from this suggestion growing out of

your inquiry suffice it to say under our Constitution

the prerogative of granting pardons is confided alone

to the Governor. The Legislature even under our

Constitution has no power to limit the discretion of

the Governor to grant pardons or to require any other officer to first pass upon the question. It may

under the Constitutional provision regulate the man-

ner of applying for pardons, but it could not, as

stated, infringe upon the Constitutional prerogative

or power of the Governor to grant a pardon. The

exercise of the pardoning power is confided alone to the Governor and the fullest responsibility "for its exercise rests alone upon him and any law which

restricted this power would be unconstitutional and

void. The Legislature may, as stated, under the

provision in question provide ''for the manner of

applying for pardons," but to say that the applica-

tion shall first be passed upon by the Prison Com.

63

miS'sion would b_e clearly a limitation upon the pardoning power lodged in the Governor under the Constitution of this State. The Prison Commission may never pass upon an application and were this a condition precedent the Governor could not exercise the power conferred upon him. But the Legislature has never undertaken even to regulate the manner of applying for pardons. I make this statement with full knowledg~ of the Act approved December 21, 1897, creating a Prison Commission of this State, and especially in the light of 7 thereof, whereby the Prison Commission is constituted "a board of par. dons whose duty it shall be to investigate all applicants for executive clemency and make recommendation to the Governor regarding the granting of the same.'' This, however, is not an Act regulating the application of pardons but an Act regulating the board that was created entrusted with the duty of investigating and recommending executive clemency. The manifest purpose of that Act was to have this Commission look into cases where applications had not been made for pardon, as well as in those cases where. made, to the end that merit?rious cases might be brought to the attention of the Governor. The Prison Commission was created to aid the Governor, but in no wise does it limit or supersede his authority. As stated, clearly it is not a limitation nor intended as such of the pardoning power of the Governor. That this is a proper interpretation of the Act, attention is further called to the Act of 1908 creating a "System of parole or conditional pardons
64

of prisoners convicted of crime.'' While under this Act the duty is still imposed upon the Prison Commission of investigating pardon applicat;ions, the Act winds up with. the statement: ''that the provisions of this Act shall in no wise impair the pardoning power vested in the Governor."
I do not think, therefore, that it is essential "that an application for pardon shall first be passed upon by the Prison Commission.'' In the wise and orderly exercise of the power conferred upon the Governor to grant pardons lie may refer such applications in his discretion to the Prison Commission, but as stated, not bound to do so.
I beg to remain, Yours Very truly, JOHN C. JfART, Attorney-General.
January 9th, 1908.
RoN. PHILIP CooK, Secretary of State,
Atlanta, Ga.
DEAR Sm :-I am in receipt of your letter of the 9th inst. in which you ask for my official opil!ion upon the inquiry whether a bank may lawfully issue (;ertificates to its shareholders of the par value o $100.00 when in point of fact the shareholders have paid only $60.00 therefor, with the understanding between the stockholders that such share is subject to an r i.ditional forty per cent assessment.
65

I am not advised of any statute specifically dealing with the proposition but on principles of common honesty I should have no hesitancy in advising that a bank should not issue any such certificate. I do not understand how the officers of a bank could certify that $100.00 had been paid in by the holder thereof, when in point of fact only $60.00 had been paid. The certificate would not speak the truth. The further suggestion that stockholders amongst themselves might have an "understanding that such share was assessable, if necessary, at a later date for the additional forty per cent," would work confusion, and if for no other reason, it would be obobjectionable. Certificates of stock are often the matter of sale and transfer and the public take it upon the faith of what it purports to speak. Innocent persons might be the victims of this "understanding.''
I am of the opinion, therefore, that the law would not countenance such a transaction.
Yours very truly,
c. JOHN HART,
Attorney-General.
May 12th, 1909.
HoN. PHILIP CooK, Secretary of State,
Atlanta, Ga.
DEAR SIR :-Replying to your inquiry this day submitted, viz., whether a loan on real estate is such
66

a security as is contemplated by 2043 of the Civil Code as a deposit with the Treasurer of this State by insurance companies as a condition precedent to their being licensed to do business in this State, I beg to advise :
I think not. 2013 of the Civil Code under the chapter headed "Incorporation of Insurance Com panies" has a provision relative to the investment of the capital stock of the company, authorizing an investment in bonds of the United States, of this State, ;:tnd bonds of cities and counties of this State, ''or .in mortgages on real estate worth twice the amount for which the same is mortgaged,'' subject to the approval of the Secretary "of State, but as stated, this has reference to the organization of the company and directed to the Secretary of State. 2043 of the Cod.e deals with companies that have been chartered by the State and desirous of doing business. In other words a company may be chartered by the State and yet before beginning business must comply with the requirements for a license. This section provides ''All such companies chartered by the State of Georgia shall before doing business in this State deposit with the Treasurer of this State One Hundred Thousand Dollars in such securities as may be deemed by the Insurance Commissioner of this State equivalent to cash." See 2043 and Act amendatory thereof approved August 22nd, 1905. This section is directed to the Insurance Commissioner and the two are perfectly harmonious. In other words I think you would be
67

authorized as Secretary of State to charter a company posessed of One Hundred Thousand Dollars of assets invested in mortgages on real est.1te worth twice the amount for which the same is mJrtgaged, yet this chartered company would not be a athorized to begin business until it had complied with 2043 of the Code relative to the deposit with the Treasurer, of ~uch securities as the Insurance Commissioner regarded as "equivalent to cash."
Is a personal loan secured by mortgage such a "security" as is contemplated by this section~ The purpose of requiring securities to he depos.ited is the protection of policy-holders in the event of the neglect to pay _by insurance companies its losses, or its insolvency. I think the word "security" is used in the sense of public securities, that is to say, secmities which may be sold in the open market, readily available, a quick asset. It matters not how valuable a mortgage may be, it cannot be said to be the equivalent of cash in an emergency where cash is required. The Act means securities ''subject to the order of the Insurance Commissioner,'' indicating, as stated, a class of securities readily convertible into money by sale.
Yours very truly,
c. JOHN HART,
Attorney-General.
68

June 9th, 1909.
HoN. PHILIP CooK, Secretary of State,
State Capitol.
DEAR SIR :-I am in receipt of your Jetter of the 8th inst. requesting my official opinio"l as to the effect of the Act approved December 16, 1902 (Acts 1902 p. 52), upon the duration of charters to fire insurance companies granted by the Recretary of State.
This Act was amendatory of 2017 of the Civil Code and amended that section by striking the limitation of the rights, powers and privihges granted such insurance company for a longer period than fifty years. In other words by this amendment the law does not fix the time for the expiration of the charters of insurance companies, except as the charter may be revoked at any time f')r misuser OJ nonuser.
I beg to remain, Yours very truly,
c. JOHN HA "Wl',
-A ttornry-General.
July 21st, 1909.
of HoN. PHILIP CooK, Secretary Stat.",
State Capitol.
DEAR SIR :-Replying to your let'..er of the 14th, inst. wherein you state by agreement the authorities

of Wilkinson and Twiggs Counties have established a line dividi.ng these counties "which is known not to be the true line,'' and you ask if counties in this way may change their boundaries:
Accepting as true the statement of fact in your letter that in pursuance of this agreement a surveyor was employed to run a line known both to himself and by the authorities as not being the true line, I beg to advise that this could not be done. Counties may change the line in pursuance of 382 et seq. of the Political Code, but I do not understand under your statement of fact that they are proceeding by virtue of this law, but on the contrary under the provisions of 386 et seq., relative to "settling disputed county lines.'' These last named sections are to cover a case where in point of fact there is a dispute and the purpose of the appointment of the surveyor is to mark out and define the boundary line in dispute. rrhe last sections mentioned have no application unless in point of fact there is a dis- . pute. I gather from your letter there is no dispute, but on the contrary an agreement to establish a line known to all parties. as not the true line. Boundaries of counties cannot be changed in this way. The State as sovereign over all is interested in keeping the county lines, its political subdivisions, well defined. While the law, as stated, provides how counties may change the county line this can only be done by observing the provisions of the law relative thereto. Counties have no authority to change the line merely by agreement, nor would a surveyor
70

appointed to mark out a disputed line have authority to establish a line as the "true boundary line" when he and the authorities well knew that it was not the true boundary line. If I have read your_ letter understandingly the effort to change the line i.n the case you submit is abortive.
Yours very truly, JoHN C. HART, Attorney-General.
April 27th, 1909.
HoN. PHILIP CooK, Secretary of State,
State Capitol.
DEAR Sm:-I am in receipt of your letter of even date requesting my official opinion as to the constitutionality of the Act approved August 17th, 1906, requiring corporations in this State to make a return annually to the Secretary of State embracing information relative to its organization, _its principal office, etc.
I note the question has been raised by a foreign corporation that the Act, so far as it applies to foreign corporations engaged in interstate commerce, is unconstitutional. The argument offered in support of this contention is the tax is a license tax and cannot be levied on foreign corporations engaged in interstate commerce. I do not understand that this is a license tax at all. It is simply a law involving the proper regulation of all corpor-
71

ations, both foreign and domestic, doing business in this State. In the wisdom of the Legislature this requirement was made supposedly for the benefit of the public, and the small charge of a dollar for the first return and fifty cents annually thereafter is supposed to cover the cost of recording this return as public information. It is not a license tax at all, but as stated, a mere regulation of the State relative to all corporations, ai:td is neither a license tax nor a revenue measure.
I am of the opinion, therefore, it is within the power of the State to pass an Act imposing this reasonable regulation and in doing so to prescribe a fee for recording this information and in no sense impinges upon the provision in the Federal Constitution giving to Congress the exclusive right to regulate interstate commerce. I think the Act is constitutional.
Yours very truly, JoHN C. HART, Attorney-General.
December 22nd, 1909.
HoN. PHILIP CooK, Secretary of State, State Capitol.
DEAR Sm :-Replying to your letter of the 21st inst:
I note you say on the 16th of August, 1909, Gov. Brown appointed C. S. Roberts civil engineer to
72

. survey and marks out the line between Wilkinson and Twiggs Counties and that this was done and a proper return made thereof as required by law. To this ~urvey Wilkinson County filed objections, and that now comes Mr. Roberts, the civil engineer, and files protest to your hearing as Secretary of State the objections .of Wilkinson County, on the ground that Wilkinson County has failed to pay him for his services as required by law. You ask what is your duty in the premises?
The Act approved October 20th, 1887, providing for the settlement of disputed county lines, and providing further for the compensation for the surveyor and employees, imposes an obligation upon the counties to equally divide the expenses attendant upon the survey, etc., but I do not understand that the neglect and failure of the county to pay the civil engineer would authorize you to ignore or dismiss the contest proceedings. You should proceed as Secretary of State under the Act approved December 20th, 1899, to hear the contest.
Yours very truly, JoHN C. HART, A. ttorney-General.
73

November 25th, 1908.
HoN. PHILIP CooK,
Chairman Printing Commission,
Atlanta, Ga.
DEAR Sm :-I beg to acknowledge receipt of your recent request for official opinion upon the following questions:
1. What charge should the printer make for composition on blank work such as blank commissions, blank certificates, charters, and such other similar blank work as is required by the various departments 7
2. Has any State department the right to contract with persons other than the State Printer for work not covered by contract when it can be done at a less price 7
The law relative to public printing may be found in chapter 5 of the Political Code, 1070, et. seq. It may be gathered from those sections the policy of the State relative to public printing and to the end that the public printing may be best and most economically done bids are advertised for and stipulations, specifications and requirements, as set forth in these sections. To illustrate, bids for printing are asked for "on the laws," "on the journals," ''tax digests,'' ''wild land digest,'' ''for blank books,' etc. With your inquiry you have sent me copy of the contract made with the public printer after advertisement in conformity with the sections of the Code quoted. I do not find in the sections of the
74

Code nor in your contract any specification covering the printing of "blank commissions, blank certificates and charters." If such printing is covered by your contract it would fall under the head of the sections marked 6 and 7 to-wit: ''for composition per one thousand ems. 50 cts. '' These sections follow the headings respectively ''for ruling tax digests,'' ''for ruling wild land digests.''
I note that the Commission, consisting of the Secretary of State, the Comptroller General and the Treasurer, representing the State, and the public printer, have interpreted the contract made with the public printer as falling under the head "for composition" that class of printing as embraced in your inquiry number one. I understand from your statement of fact that the bid was made by the. printer under this construction and accepted by the printing commission with like construction and interpretation. It does not seem therefore that the question is one of law at all but simply of fact, but it seems there is no room for dispute about the fact. The printer having done the work should be paid in accordance with the understanding ~specially since that interpretation is not inconsistent with the written contract.
Your second inquiry is very broad, and to undertake to answer it would necessitate an investiga.tion by me of every department of this State, including the judicial, executive and legislative. I assume the purpose of the inquiry is not intended to cover such scope but that it is pertinent only as it
75

may effect the printing fund yearly appropriated by the General Assembly to be expended by the Commissioners of Public Printing. Again you limit it to "work not covered by contract and when it can be had at a less price." I do not understand that the State Printer as such could insist under his contract that he has a right to do the State's printing when it is of a class "not covered by contract." This would put the State at the mercy of the State Printer and the very purpose of the Printing Commission was to protect the State and secure the best and most economical contract possible to do the State's printing. On the other hand it does not occur to me that any department could claim the right to have its printing done and to be paid out of the printing fund without at least the assent of the Commissioners of Public Printing. In other words the Printing Commission is the custodian of that fund and it should not be drawn upon to pay any contract price for printing unless the contract is approved and the claim audited by the Commission.
I beg to remain, Yours very truly, JoHN C. HART, Attorney-General.
76

December 21st, 1909.

HoN. WM. A. WRIGHT, Comptroller-General,

State Capitol.

DEAR SIR:-

IN RE TAXES DUE ON SAVANNAH, AUGUSTA & NORTHERN RAILWAY COMPANY.

I herewith return the letter of Mr.' Branch of

December 11th, addressing you.

I understand Mr. Br.anch's letter to be a request

that the authorities will delay the collection of the

taxes due by the Savannah, Augusta & Northern

Railway Co., until a contest is settled between rival

claimants, which ~1e thinks ''will likely occur in the

spring.''

The State does not, of course, wish to embarrass

the receiver of this insolvent railroad company, but

you would have no authority to enter into any

agreement to suspend the collection of this tax. I

would advise that you write Mr. Branch accord-

ingly.

Yours very truly,

c. JOHN

HART,

Attorney-General.

77

October 28th, 1909.
HoN. W11r. A. WRIGHT, Comptroller-General,
State Capitol.
DEAR Sm :-I am in receipt of your letter of October 22nd in which you request of me an official opinion whether you should approve a warrant drawn in favor of Mrs. M. B. Cobb, State Librarian, for $431.15, in payment of bill for books purchased for the State Library in August and September of 1909.
This warrant is drawn by the Governor and against the fund designated ''sale of Supreme Court Reports of 1909.'' I gather from your letter that the question in your mind is whether the section of the Code, 158, is a permanent appropriation by the General Assembly and whether it has been repealed. by implication by subsequent Acts of the General Assembly.
Relative to the first suggestion I have referred to the original Act from which 158 is codified, viz., the Acts of 1882-3, page 32, and I observe, as shown by rthe journals, that it originated in the House as a special appropriation bill and that the yeas and nays were duly recorded as is required relative to appropri~;ttions, and therefore find in every respect it was treated and regarded by the Legislature as an appropriation. The journals of the House and Senate, therefore show that this is an appropriation. The section reads as follows: ''The money arising from the sale of supreme court reports is
78

appropriated for the purpose of making a permanent fund for purchasing and the binding of books for the State Library."
Relative to the other suggestion, that by implication this statute is repealed, I find nothing in the laws which would authorize that construction. It is true that in the general appropriation bills of late years there has been an additional appropriation made by the General Assembly for the purchase of books for the State Library, but this additional or specific appropriation is perfectly consistent with Code 158 and. is at most but supplementary. The section of the Code 303, requiring in addition to the customary itemized statement appropriated for the usual expenses of the Executive, Legislative and Judicial departments of the government, and that amounts appropriated by previous laws shall be included therein, has reference to appropriations coming out of the general fund and not to permanent appropriations from a specific fund. This construction has precedent in the treatment by the Legislature of appropriations heretofore made out of specific funds, to illustrate: the fees from the inspection of oils, fertilizers, etc.
I am therefore of the opinion that Code 158 is still the law and that at least so much of the money as has arisen from the sale of supreme court reports last and this year is subject to the warrant as drawn.
Yours very truly, JoHN C. HART, Attorney-General.
79

October 14th, 1909.
HoN. WM. A. wmaHT, Insurance Commissioner,
State Capitol.
DEAR Sm :--I beg to acknowledge your letter of the 13th enclosing copy of a letter from Mr. J. E. Hall, addressing you as Insurance Commissioner, in which he raises the inquiry whether The Georgia Life Insurance Company may, under the recital of fact in his letter, engage in fidelity insurance. You refer the letter to me with the request that I shall rule thereon.
The Act approved October 22nd, 1887, regulating and defining fidelity insurance companies provides in ~2 thereof, ''That any fidelity insurance company, or such other corporation or company, may do fidelity insurance business in this State . . which has a paid-up capital of not less than $250,000. '' This company, under the statement of fact, has a paid-up capital of $300,000. Having a capital stock paid-up in excess of that required of fidelity companies it is entitled to do ,a fidelity insurance business, at least as far as the stock requirement is concerned.
The Act approved Dec. 18th, 1893, providing for the incorporation of insurance companies and requiring that such companies shall have "not less than $100,000 for each class of insurance to be engaged in . . paid in cash or invested in bonds,'' etc., should be construed in pari materia with the Act of 1887, supra. If this is done both
80

Acts are given full effect, that is to say, the in-

surance company in question may do, first, a life

insurance business because it has a paid up capital

of $100,000 to cover that feature of insurance; sec-

ondly, accident insurance because it has an addi-

tional $100,000 paid up for 'that class of insurance;

and now thirdly, fidelity insurance, for it has an-

other $100,000 paid up for that class of insurance.

It thus has a total of $300,000 of paid up capital

stock. The provision in the Act of October 22~

1887 above, ~2, authorizing any fidelity insurance

company or such other corporation or company

which has a paid up capital of not less than

$250,000, '' to do fidelity insurance business, and it

appearing that the company in question has $300,-

000 of paid up capital, has been more than met and

the company under the provisions of either of the

Acts in question is entitled to do a fidelity insur-

ance business.

Yours very truly,

c. JOHN

HART,

Attorney-General.

April 20th, 1909.
HoN. WM. A. WRIGHT, Comptroller-General, Atlanta, Ga.
DEAR Sm: I am in receipt of your letter of even date enclosing one from the manager of the Ame~ican National Life Insurance .Company, re-
81

questing that I interpret 8 of the Act entitled "An Act to regulate the business of insurance in this State.'' See compilation of Insurance Laws, p. 16. T~e exact question for consideration is whether the capital stock of the company is to be considered as a .liability in ascertaining the condition of the company as entitling it to a license to do business in this State.
The American National Life Insurance Company is a Virginia corporation and it is conceded, as I understand, the company has in safe securities an amount equal to the net value of all its policies in force, but if the capital stock is t6 be considered as a present liability of the company the company has not on hand assets to the amount of the net value of all its policies after other debts of the company and claims against it are discharged. Should the company .be licensed to continue business in Georgia under these conditions?
So much of the Act as is material to a clear understanding of the question is as follows: ''In case it is found that any life company doing business in
all this State has not on hand the net value of its
policies in force after other debts of the company and claims against it e:x;clusive of capital stock have been provided for, it shall be the duty of the Insurance Commissioner to publish the fact that the then existing condition of affairs of the company is below the standard of legal safety established by this State, and he shall require the company at once to cease doing new business; and it is hereby made the
82

duty of the Insurance Commissioner after having determined as above the amount of the net value of all policies in force to see that the company has that amount in safe legal securities after all debts of the company and claims against it exclusive of capital stock have been provided for.'' Lt will be seen from the foregoing that the "capital stock" is' not to be considered as a liability in determining the question whether the company shall be permitted to continue to do business in this State. The company has met the requirement of the law when it has in hand assets sufficient to meet the net value of all policies ''after all debts and claims against the company exclusive of capital stock have been provided for."
The purpose of the statute is to protect the policyholder and the statute should be construed accordingly. Capital stock to be sur.e is a liability and should be considered in determining the solvency of the company. But under a statute which requires that a company shall be possessed of at least $100,000 of actual cash capital paid up and invested in securities and which is actually on deposit, a policyholder might be absolutely safe, although the stock in the hands of a stockholder might be of little value. As stated, the purpose of our statute is to protect the policyholder, and so long as the company complies with the standard of legal safety established by this State, to-wit, "assets sufficient on hand to meet the net value of all its policies in force after all other debts of the company and claims against it have been provided for.~-
83

This company, as I understand under the statement of fact, ~as on hand $100,000 and over invested in safe securities and sufficient to pay the net value of all its policies and all other debts and claims against it exclusive of capital stock, and therefore entitled to a license to do business in this State.
Yours very truly, JOHN C. HART, Attorney-General.
January 6th, 1909.
HoN. "\VM. A. WRIGHT, Comptroller-General, State CapitoL
DEAR Sm: I am in receipt of your letter of even date enclosing letter from G. A. Britt, Ordinary of Mcintosh county, in which the Ordinary requests instructions from your office relative to certain affidavits of illegality :filed by dealers in imitations of or substitutes for wines, !iqurs, etc., under the Act approved September 5, 1908.
The sheriff has no authority to receive the affidavits and his duty is to have made the taxes by seizure and sale. An affidavit of illegality does not lie in any levy or distress for taxes due the State under the laws of Georgia. The duty therefore of the sheriff is to collect the taxes unless restrained in a proper proceeding by the judge of the superior court.
Yours very truly, JoHN C. HART, Attorney-General.
84

January 5th, 1909.
HoN. JERE M. PouNn, State School Commissioner, State Capitol. DEAR Sm :-I beg to acknowledge your inquiry
of even date asking my official opinion on the question when the term of office of State School Commissioner begins.
By virtue of the Act approved December 18th, 1894, >(Acts 1894 p. 34) amending the Constitution of this State so as to make the office of State School Commissioner elective by the people, the term of this office is coincident with that of Governor and other State House officers. I am of the opinion therefore that the term of office of State School Commissioner begins, and he is inducted into office, at the same time as the Governor and other State House officers, viz., when the Legislature convenes in. June.
I beg to remain, Yours very truly, JoHN C. HART, Attorney-General.
85

January 28th, 1909.
HoN. JERE M. PouND,
State School Commissioner,
Atlanta, Ga.
DEAR Sm: I am in receipt of your letter of the 1st inst. enclosing a letter jointly signed by B. H. Pearman, County School Commissioner of Hart County, and W. B. Mullen, Ordinary of Hart County, submitting the question whether an election for local taxation in a school district under the McMichael Act was legal under the statement of fact therein contained. The statement of fact is embodied in two sentences as follows: "If a school district should hold an election on the question of local taxation and the election is by the Ordinary declared illegal, b~cause one of the managers did not reside in the school district" and was otherwise disqualified as a manager, and a new election is held within thirty days and the result declared by the Ordinary in favor of local taxation. Was the last election legal or illegal~''
It will be observed that no reason is assigned in favor of either contention. I am left to grope in the dark and find if I can a reason for declaring the election illegal, or failing to find that it is illegal, to declare it legal. In other words the statement of fact is so meager it is hardly possible intelligently to pass on the question.
I would gather from the statement of fact that two elections have been held for local taxation in
86

this district and held within twelve months. 4 of the McMichael Act provides that elections ''shall not be held oftener than every twelve months.'' This would appear to be irregular. I note further under the statement that the Ordinary declared that the first election was illegal because of the disqualification of one of the managers. I do not understand under the Act that the Ordinary has any authority in the premises except to "declare the result.'' There is no provision for hearing any contest before the Ordinary and his duty was simply to have declared the result of the first election. I assume, of course, that there was some point raised before the Ordinary and both sides having acquiesced in his ruling they are perhaps concluded there_by. If it be assumed that the Ordinary's decision is correct, that there had been no election, or if the election was void, the inhibition in the Act relative to the time of holding another would not apply. A void election is no election. There is nothing in the statement of fact that would indicate how many votes were cast in the first election "for local taxation for public schools, nor how many were ''against local taxation for public schools.'' If by the first election the requisite number of voters voted in favor of local taxation, as they did in the last election, the courts will very likely hold that the district has voted the local tax.
As stated, however, in the beginning of this opinion, in the absence of any reason assigned by either
87

side for or against the legality of the election I can not intelligently pass upon it.
Yours very truly, JOHN 0. HART, Attorney-General.
January 12th, 1909.
RoN. JERE M. PouND,
State_ School Commissioner,
State Capitol.
DEAR Sm:-I am in receipt of your letter of the 11th inst. containing a request that I answer officially the inquiry: "May the board of education of a county change the boundary of a local school district by enlarging the local tax district so as to make subject to the local tax the territory added without the citizens thereof voting for the tax7"
I do not think the board of education has authority to do this. Unquestionably the board of education may change the boundary of school districts, either for the purpose of enlarging or decreasing the territory, but when this is done the question of local tax for school purposes must be resubmitted to the citizens of the district.
The purpose of the McMichael Act, under which these districts are laid out is to allow counties or local districts to advance the cause of education by the levy of a county or local tax to supplement the money received from the State in aid of public
88

schools. The right to levy this additional ta:; is left to the citizens of the county or district to be settled by vote. In other words the burden of additional taxation to support the schoolS' is left to the people of the locality who are to bear the tax. The Act must be construed in the light of its purpose and the machinery provided for its accomplishment. The Act authorizes a county as such to vote, a municipality or a rural community, to adopt its provisions, but only by a vote of the people. In no other way could a local tax be imposed. This is obliged to be the 1aw, or else if it be conceded that new territory could be added to a district which voted for a local tax, then it would be possible for a single district in a county which had voted for the local tax, to absorb a county by merely enlarging the boundary of the local school di'strict. The local tax could thus be imposed, not by vote of the people, but merely by the board of education changing the district lines.
Again, if the board of" education may change the line by enlarging the territory, under the name principle they could by changing the line decrease the territory and thus put the burden of taxation upon a limited few.
Again, if the board of education is authorized to change the boundary of a local district so as to add to it new territory where a local tax does not prevail, it may likewise change the district so as to add territory from a local district to one not levying a tax and thus defeat the wish of the people to bear a tax for this purpose.
89

The .position of the voter is, at the time he votes, with the lines as thus laid out he is in favor of a local tax and so votes, and therefore for a board of education to change the line thereafter, either by enlarging or diminishing the territory, should not bind the voter because different conditions would prevail than those existing at the time of his ballot. This would not be local option-a tax self-imposed by the voter-but might become a tax in spite of his objection. This would be neither within the letter nor the spirit of the McMichael Act.
I am of the opinion, therefore, that where a district had voted for local tax, the board of education of a county has no authority to materially change the boundary and continue the tax without first submitting the question to the people in the old and the new territory to be effected by such change.
Yours very truly, JOHN 0. HART, .Attorney-General.
June 18th, '1909.
RoN. JERE M. PouND, State School Commissioner,
State Capitol.
DEAR Sm :-I am in receipt of your letter of the 3rd inst. requesting that I shall interpret ~3 of the Act approved August 21, 1906, providing taxation
90

for public schools, etc. (See Acts 1906, p. 61.) Especially you inquire may a city operating a public school system participate in an election called ~y the county for the submission of the voters of the county the adoption of a county tax. Relative to the submission of this question in the Act is the following proviso: "Provided, that if there be an incorporated town in a county holding an election as provided in this section now operating a public school system it shall not be included in the election without the consent of the municipal authorities, but if the municipal authorities should so wish they may wbolish their system by a special Act of the Legislature and avail themselves of the provisions of this bill." The provision is somewhat obscure and confusing. I think, however, the Legislative intent is as to cities maintaining a system of public schools as a city, so long as it maintains or operates such system is to exclude such city from participating in an election held by the county. The Act provides that it may abolish its system if it sees fit and avail itself ''of the provisions of this bill,'' but until it abolishes its system the Act treats the city and its system as separate from the county in a vote by "the county for a local tax. It would be well to keep in mind the distinction between a city as a city maintaining a system of public schools and a local school ibistrict which under the McMichael Act may embrace a city and adjacent territory. In the latter case the citizens of such local district may vote in a county election for a. local tax. The Act specially
91

authorizes boards of education to create a local sy~ tern embracing a town or city, hut when this is done it becomes a local district and ceases to be an 'incorporated town" operating a public school system.
Whether, therefore, the citizens in the city of Toccoa may vote in an election by the county for a, local tax will depend upon whether the city is operating a public school system as a city authorized by the Legislature, or whether it is embraced in a local school district created under the terms of the McMichael Act. I do not know myself how this is. The people howeyer who live there do know and they may apply the law as expressed to the fact as it may exist.
Yours very truly,
JOHN c. HART,
Attorney-General.
October 22d, 1909.
HoN. JERE M. PouND, .State School Commissioner, State Capitol. DEAR Sm : - I am in receipt of your letter of the
16th inst. enclosing from Judge Henry Cook, Ordinary of Jeff Davis County, in which he raises the inquiry whether the county board .of education of Jeff Davis County may elect a county school commissioner to fill a vacancy which will occur on
92

March 1st, 1910, or whether it will be necessary to have a general election to fill this vacancy.
T_he Act passed by the General Assembly, providing for the election of county school commissioners of the various counties of this State by the electors of the county, excepts from the operation of the Act a vacancy caused by death, resignation or otherwise, and where the unexpired term is for a period less than one year. This vacancy, which is contemplated in Jeff Davis County occurs, as I understand, by operation of law-the term of office of the present incumbent expiring on that date. 'Since we have a general election in 1910 and since it is le5s than a year from March 1st to October, the board of education is empowered under that Act to fill this vacancy by electing a county school commissioiwr.
Yours very truly, JonN C. HART, Attorney-General.
October 29th, 1909.
HoN. JERE M. PouND, State School Commissioner, State Capitol. DEAR Sm :-I herewith return to your office the
election returns and tally sheet of the election held for county school commissioner of Baldwin county on October 21st, 1909. My recollection is Mr. Merry
93

left th~~e returns in my office. I note they were originally sent to the office of the Secretary ot. State, and I assume sent from that office to yours.
The Act providing for the election of county school commissioners by the voters of the county was passed at the last session of the General Assembly. There is no provision made in the body of the Act specifically naming any person to whom the returns should be sent. I take it, however, the Constitutional provision, to-wit, Code ~5743, as follows, would control: ''Returns of elections for all civil officers elected by the people, who are to be colllll1issioned by the Governor, and also for the members of the General Assembly, shall be made to the Secretary of State, unless otherwise provided by law.;' Reading that into the Act mentioned above it becomes the duty of the Secretary of State to canvass the returns and certify the election to the Governor.
Yours very truly, JoHN C. HART, Attorney-General.
September 21st, 1909.
lioN. JERE M. PouND, State School Commissioner,
State Capitol. DEAR Sm :---<Replying to your request of the 18th inst. for an official opinion whether electors residing
94

within the confines of local school systems .have a right to participate in the election of county school commissioners :
The Act approved August 16th, 1909, changes the method from election of county school commissioners by the board of education of a county to that of election by the electors of each county. The language ofthe Act in part is ''The county school commissioners in the various counties of this State shall be elected by the electors of their respective counties who are entitled to vote for members of the General Assembly. . . .'' The language of the Act quoted hardly admits of construction. It is plain and unambiguous. The electors of the county, therefore, who are entitled to vote for members of the General Assembly, are entitled to vote under the terms of the Act, for county school commissioners. The fact that an elector lived within the confines of a local school system is not a disqualification. It is sufficient if he lives_in the county and is entitled to vote for members of the General Assembly.
Yours very truly, JoHN C. HART, Attorney-General.

June 25th, 1909.
RoN. A. J. ScoTT, Adjutant-General,
, Atlanta, Ga.
DEAR Sm :-Replying to your inquiry of even date, as follows:
'' 1. Whether service in military -schools will count as service for eligibility for appointment as Aide-de-Camp on the staff of the Governor and
'' 2. Whether a person who has served five years in the militia of the State, but not now in active service is eligible for appointment as an Aide-deCamp to the Governor.. ''
Neither would be eligible. The Act approved August 22d, 1907, providing for the organization of the militia of this State, and especially section 2 of the Act (See Acts 1907, p. 103) deals with the question you have raised. It is provided in section 2 after providing for the ~ilitary staff of the Governor as to members, who shall be eligible to appointment as Aide-de-Camp on the Governor's staff, "No person shall be eligible to such appointment or detail unless he shall have served in the Confederate army, or not less than five years in the United States army, or unless he shall be a retired officer or veteran member of th"e National Guard of Georgia, or an active member thereof who has served not less than five years . .. '' Your inquiry is : "Does attendance upon a military school count as service in the National Guard~" Manifestly it does not. One may acquire military training, but it can-
96

not be counted as military service in the National Guard. The National Guard as defined by the Act in question contemplates enlistment. A boy at school has not enlisted in the military service, though as stated, he may be acquiring military training. To make one eligible to this appointment on the staff of the Governor he must also be in the active service for five .years, where he bases his qualification for appointment on service in the National Guard. Active service means present service.
I beg to remain, Yours very truly, JoHN C. HART, Attorney-General.
October 21st, 1909.
HoN. A. J. ScoTT, Ad~utant-General,
State Capitol.
DEAR Sm: I am in receipt of your letter of October 21st enclosing one from Capt. H. P. Meikleham, in which he raises the question as to his status in the National Guard of Georgia and his rights and duties in the premises. In your request of me for an official opinion on the questions raised by him you state them more specifically and submit the questions as follows: Whether or not it is legal for Capt. Meikleham to hold two commissions at the same time and if the wearing of the uniform as an Aide on the staff of the Governor is optional or
97

obligatory. These additional facts which appear from your letter should be stated and are necessary to a correct understanding of the questions. First. Captain Meikleham is Captain and duly commissioned as such of Co. E, 5th Regiment of Infantry, National Guard of Georgia, and, secondly, he has been detailed under the provisions of the Act approved August 22d, 1909, as Aide on the staff of the Governor. The Act gives to an Aide de Camp on the Governor's staff the "rank of Lieutenant-Colone11'' and further provides ''they shall have all the rights and privileges of the increased rank, but shall not forfeit their regular commission in the National Guard.''
This Act I interpret as meaning that an officer of the National Guard when appointed as an Aide de Camp has, while serving, the rank of LieutenantColonel, but I do not understand that he is commissioned as a Lieutenant-Colonel. The language of the Act is, while thus serving, the Aide de Camp ''shall not forfeit his regular commission in the National Guard." I cannot well see how commissions differing in rank could be given to the same officer. That is to say, he could not be both a Captain and a Lieutenant-Colonel in the National Guard. If commissioned as a Captain he would be less than a Lieutenant-Colonel, or as LieutenantColonel, his rank would be higher than that of a Captain. I take it therefore when an officer is detailed as an Aide de Camp on the Governor's staff his rank while serving is that _of Lieutenant-Colonel,
98

but his standing in the National Guard is according to his commission. I do not think, therefore, that
Capt. Meikleham would be entitled to two commis-
sions conferring upon him a different rank. 2. By reference to the order of the Governor of
July 20th, 1909, detailing Capt. Meikleham as an Aide on his staff, it is there provided "he is entitled to wear the uniform of his increased rank upon all occasions wlien serving with the Governor.'' The language there used is "entitled to wear." He is not required in the order to wear the uniform of a Lieutenant-Colonel. Whether or not it would have been better to have so required, this office, of course, expresses no opinion, I merely deal with the order, and under its terms he is entitled to wear the uniform of his increased rank. The qrder leaves it optional with him as to whether he shall wear the uniform of a Lieutenant-Colonel, or that of a Captain.
Yours very truly,
JOHN c. HART,
Attorney-General.
October 28th, 1909.
RoN. J. PoPE BRowN,
Treasurer, Ex. Off. Stale Barnk Examiner,
State Capitol.
DEAR Sm :-I am in receipt of your letter 23:rd inst., in which you propound a number of
99

questions relative to "branch banks" and ask for my official ruling thereon.
1. ''Does the law of Georgia authorize the establishment by a regularly incorporated .bank of branch banks or offices in the same town or city as that in which its principal office is located?"
I know of'no law in Georgia which authorizes the establishment of branch banks in towns or cities. An office for the convenience of the public for making deposits is not a "branch bank."
2. "Does the law authorize the esbblishment 'by a regularly incorporated bank of branch banks in towns or cities other than that of its principal office."
I know of no law which authorizes the establishment of branch banks in towns or cities other than that of its principal office, and as stated in number 1 above, nor in towns or cities in which its principal office is located.
3. "If branch banks are lawful must they operate under the name of the parent bank as a branch thereof, or may thebranch bank hold itself out to the public as a bank under a name different from that of the parent bank?"
As stated in 1 and 2, I know of no law authorizing the establishment of branch banks. To permit a bank incorporated under the laws of Georgia, .say as ''The Bank of A'' to establish in the towns of B, C, D, etc., banks as branch banks and calling them
''The Bank of B' ''''The Bank of C' ''''The Bank of
D,'' having a separate president, separate board of
100

directors, and having no capital stock paid in, is subject to the criticism of being not only unauthorized by law, but is in violation of law. The laws of this State do not permit a bank to operate unless it has at least $15,000 of capital stock actually paid up, and as stated, to permit a bank in one county to operate a dozen or more holding itself out as a separate and distinct organization, is in violation of law and a deception on the public. In fact it is not improbable that these operators have deceived themselves, for it is very likely that in the event of the failure of a bank so operated the president, directors, etc., could be held personally liable as a partnership or association and made responsible in the event of loss personally for the entire amount of the loss.
4. "Should branch banks, if lawful, have a separate board of directors and separate officers from the parent bank, or are they merely administrative agencies of the parent bank under control of the same officers and directors as the parent bank~''
This question is answered in the preceding one.
5. ''May regularly incorporated banks with a minimum capital stock of $15,000 operate branches without any additional capital stock~"
This question is likewise answered above.
6. "Under what circumstances, and to what extent may regularly incorporated banks establish branches under the law of Georgia 1''
Likewise answered supra.
101

.7. "Application has just been made by a Tennessee banking association to establish a branch bank in Georgia without incorporating under the laws of Georgia or putting in any additional money in this State. May they do this~''
This inquiry but serves to illustrate where we will be led to if the practice is allowed to grow permitting a bank to be incorporated under one name and allowing it to establish banks indiscriminately without putting up any additional capital. I should advise therefore that you answer the foreign bank will not be permitted to establish a bank under such conditions as is desired. Banks are desirable things if good and solvent and should be encouraged by the State, but even banks are not desired if their only means of sustenance are such deposits as a confiding public may entrust to their safe keeping. Behind every bank there should be a guarantee that the deposits are safe, in the form at least of money subscribed and paid in by stockholders and pledged to meet its creditors and depositors. Banking is not a game at which. adventurers should be allowed to play. Banking is a business involving the public welfare and in which the capitalist and the day laborer are alike interested.. If a bank may be incorporated as "The Bank of A" located in Atlanta, Georgia, with a capital stock paid in of $15,000 and be allowed to establish as it may please without additional stock banks throughout Georgia, we would have the remarkable spectacle of our entire banking business resting upon an ultimate guarantee of only
102

$15,000. To state the case argues the absurdity of any such scheme.
I beg to remain, Yours very tr"?ly, JoHN C. HART, Attorney-General.
October 26th, 1909.
RoN. J. PoPE BRowN, Stnte Treasurer and Bank Examiner,
State Cpitol. DEAR Sm :~I am in receipt of your recent letter enclosing one from Mr. J. N. King, of Rochelle, in reference to the private banking house of Mr. McNamara. I note your request as follows: "Kindly give me your opinion on the subject matter contained therein and oblige.'' I do not quite understand the scope of your inquiry. If you mean to ask me whether or not one may under the laws of Georgia conduct a private banking business, I reply by saying one may. If you me?Jl to ask just what your duties are relative to this private bank I cite you to the Act approved August 22nd, 1907 and especially. 33 thereof, as follows: ''That nothing in this Act herein contained shall be so construed as to apply to any private bank or bankers doing business in this State,'' which I interpret as meaning you have nothing to do with these banks.
103

If this does not answer your inquiry I would like that you would be more specific.
Yours very truly, JoHN C. HART, Attorney-General.
November 9th, 1909.
HoN. J. PoPE BRowN, State Treasurer,
State Capitol. DEAR Sm :-Your letter dated October 27th has just beenreceived by this office. I note your request for my opinion in writing whether the bonds of the City of Savannah known as refunding bonds belong to that class of bonds specified in 2035 of the Civil Code, as amended by the Act of 1905, p. 75 I note you say these bonds are refunding bonds and are issued in lieu of prior maturing bonds of the City of Savannah. The Act requiring a deposit of securities by in-
surance companies as a condition precedent to doing
business in Georgia has of course but one object in view, viz., the protection of policy-holders in the event of the failure of the insurance companies, ~nd contemplates the securities deposited with the Treasurer of th.e State shall be of unquestioned validity. The statute should be construed with reference to its purpose.
The Act of 1905 amending this section adds to the class of acceptable securities, bonds of the counties and municipalities of this State which have
10!

been validated.. The requirement that the bonds

shall have been validated was intended to foreclose

any defense which the city might otherwise be able

to make relative to their validity. That is to say the

effect of validation is to work an estoppel against

the city by the judgment of a court of competent

jurisdiction. The city by virtue of the judgment

could not raise any question relative to the regu-

larity of their issuance.

In the case you put, however, viz., the refunding

bonds of the City of Savannah, the same result would

follow as if they had in fact been validated. The city

itself validates them in effect when it acknowledges

the maturing bonds by issuing refunding bonds to

take the place of the prior issue. In other words,

the city would be estopped from raising any question

of irregularity attending the first issue, for, as

stated, the act of issuing refunding bonds is a com-

plete recognition of the validity of the prior existing

bonds.

I think, therefore, in this class of bonds, you may

properly recognise them as the equivalent of bonds

which have been in fact validated. I should regard

the refunding bonds of the City of Savannah as good

as any bonds issued by that city which in point of

fact had been validated. I think, theref'Ore that

the refunding bonds of the City of Savannah fall

within the class of securities contemplated by the

Act and you would be perfectly justifiable in their

acceptance.

Yours very truly,

JoHN C. HART,

Attorney-General.

105

August 9th, 1909.
HoN. J. PoPE BRoWN, State Treasurer, Capitol.
DEAR Sm:-I am in receipt of your letter of the 4th inst. addressing me as follows:
HoN. JNo. C. HART, Attorney-General, Capitol.
DEAR Sm :~Hon. S. G. McLendon having demanded his salary to date, I would inquire of you if he is entitled to draw the same. Your immediate attention will very much oblige.
Yours very truly, J. PoPE BRowN, State Treasurer.
The facts relative to the suspension of Mr. McLendon briefly are as follows: By order of Governor Hoke Smith of June 24th, 1909, Mr. McLendon was suspended as a member of the Railroad Commission. The Governor communicated with the General Assembly by special message informing it of his action giving his reason for the suspension. The Senate on the 30th of July, 1909, by a vote of 23 to 18 sustained the action of the Governor. The House on the 5th day of August, 1909, by a vote of 129 to 40 sustained the action of the Governor. The salary in question is that which has accrued from the date of the suspension by Governor Smith to the present
106

time. The order of suspension by the Governor is

based upon the power conferred by the Act of 1878 p.

125 (Code 2185). So much of the section as is

material is as follows: ''Any commissioner may be

suspended from office by order of the Governor, who

shall report the fact of suc:h suspension and the

reason therefor, to the next General Assembly, and

if a majority of each branch of the General Assembly

declare that said commissioner shall be removed

from office, his term of office shall expire

''

Further quoting from said section: ''In case of sus-

pension the Governor may fill the vacancy until the

suspended commissioner is restored or removed.''

Does the order of the Governor suspending the

commissioner suspend also his salary 7 In answer

to that inquiry I quote from Mechem on Public

Offices and Officers, Section 864: ''An officer who

has been lawfully suspended from his office is not

entitled to compensation for a period during which

he was so suspended, even though it be subsequently

determined that the cause for which he was sus-

pended was insufficient. T~e reason given is that

salary and perquisites are the reward of express or

implied services, and therefore cannot belong to one

who could not lawfully perform such services." To

the same effect see

Steubenville v. Culp, 38 Ohio St. 18; 43 Am. R~p. 417, eiting Smith v. Meyer, 37 N. Y. 518; Auditors v. Benoit, 20 Mich. 176; 4 Am. Rep. 382 ;

107

Attorney-General v. Davis, 41 Mo. .131; Westberg v. City of Kansas, 64 Mo. 493.
I have been unable to find a case in which a contrary rule has been upheld. As stated, this doctrine
rests upon the reason that salary could not belong to
one who could not lawfully perform the service. In reaching the above conclusion I have not considered the constitutionality of the statute under which Mr. McLendon was suspended and manifestly should not do so since notice has been given b~ Mr. McLendon of his purpose to test in the courts of the State the legality of his suspension and the constitutionality of the Act in question.
I beg to remain Yours very truly, JoHN C. HART, Attorney-General.
June 1st, 1909.
HoN. J.P. BRowN, State Treasurer, Ex. Off. Bank Examiner, Atlanta, Ga.
DEAR Sm: I am in receipt of your letter of the 29th ultimo requesting my opinion whether a banK: advertising "its deposits are insured" violates the banking laws of this State.
There is nothing in the banking laws of this State dealing w,ith this particular phase of banking. If
108

in point of fact the deposits are really insured I can see no objection to such advertisement. If it be a deception used for the purpose of procuring deposits it would be very reprehensible and very likely a depositor who hart been deceived could maintain a civil action in the event of loss against the officers, or perhaps institute criminal prosecutions for the deception. As stated, however, the law does not deal in terms with the question you raise.
I beg to remain, Yours very truly, .JoHN C. HART, A ttorney-Gevneral.
June lOth, 1909.
HoN. J. PoPE BRowN, State Treasurer,
State Capitol.
DEAR SIR :-Replying to your request for my official opinion whether bonds of ~ municipality in this State which had not been validated could be deposited by a foreign fire insurance company in the vaults of the Treasury as a condition precedent to said company doing business in this State, I beg to advise:
That bonds which had not been validated could not be received. The Act approved August 22d, 1905, read.s as follo.ws: ''All fire, marine and inland insurance companies chartered by other States or foreign government. shall be required to deposit
109

with the Treasurer of this State bonds of the United States or bonds of this State which according to the Acts and Resolutions of the General Assembly are valid, or bonds of any county or municipality of this State which have been validated under the laws of this State," etc. (See Acts of 1905, p. 75.)
I beg to remain, Yours very truly,
JOHN c. HART,
Attorney-General.
July 15th, 1909.
RoN. J. P. BRowN, State Treasurer, Ex. Off. State Bank Examtner,
State Capitol.
DEAR Sm : Replying to your letter of the 13th in st. as follows: "Is it legal to operate a State bank in Georgia with a less capital stock than $25,0007 If so upon what conditi9ns if any would the shareholders be subject to assessment on their shares? Please construe 72 of the Georgia Bankers' Code.''
I do not quite understand just what you mean by "capital stock" in your first inquiry. 1910 of the Civil Code provides "No corporation (banking) shall be formed. . . . . without a capital subscribed in good faith of at least $25,000. That at least $15,000 shall be paid in cas!} by the subscribers before filing the declaration with the Secretary of State."
110

Answering your second. inquiry as to the amount

and conditions shareholders are subject to assessment: If that inquiry is intended to ask the liability of shareholders I beg to reply that shareholders in a

bank are individually liable to the extent of their

unpaid shares of stock to creditors of the bank and

to the depositors in an amount equal to the face value of their respective shares of stock. See in this con-

nection 1911 of the Code.

Replying to your third inquiry to construe 72

of the Banker's Code: That section in the Banker's

Code is substantially a reproduction of 1909 of the Civil Code. The section is a very lengthy one and I will therefore request that you specifically call attention to the particular phase of the section you would have me construe.

I beg to remain,

Yours very truly,

c. JOHN

HART,

Attorney-General .

.1une 7th, 1909.
RoN. J os. S. TuRNER, Chairman Prison Commission, State Capitol. DEAR Sm :-Answering your request for official
opinion this day made through Capt. Yancey, Secretary of the Prison Commission, relative to the 'right
111

of the Commission to engage the boys now confined at the State Reformatory in gathering a crop of peaches on a farm adjacent to the Reformatory but belonging to an individual, I beg to advise:
After very carefully reading the Act creating the Reformatory and the subsequent legiS"lation of Georgia indicating her policy as to that class of her citizens, I have very rehictantly reached the conclusion that to do so would violate the letter of tho law. I do not understand now that these persons could be employed to do any work for an individual.
I beg to remain, Yours very truly, JoHN C. HART, Attorney-General.
March 29th, 1909.
HoN. J os. S. TuRNER, Chairman Prison Commission, State Capitol. Dear Sir: I am in receipt of your letter of
March 26th requesting my official opinion on the questions raised therein. The letter is as follows:
''Please consider the Act creating the Georgia State Reformatory, Act of 1905, page 127, in connection with the Convict Act of 1908 and the Near Beer Tax Act together, and advise the Prison Commission whether it is authorized to
112

purchase land for reformatory purposes, with the approval of the Governor, and erect thereon the necessary buildings, and whether the funds derived from the near beer tax can be lawfully used for this purpose. If this can be done, it is thought advisable to purchase land and erect buildings thereon as reformatory for white juveniles only, leaving the present institution for colored juveniles.''

The Prison Commission, I am advised, under

the Act approved August 23d, 1905, entitled ''An

Act to create a State institution to be known as thP

Georgia State Reformatory for the detention and

punishment of certain offenders of the age of six-

teen. years a~d under .

and for other pur-

poses,''. with the consent of the Governor, selected

a site for the Reformatory, and erected "suitable

buildings thereon,'' as was required by that Act

upon the State lands in Baldwin county. The Leg-

islature in order to enable the Commission to comply

with the requirements in this Act appropriated $10,-

000, or so much thereof as was necessary, which ap-

propriation has been used by the Commission for

this purpose. In othw words, the Commission has

executed the requirements of that Act and in doing

so has exhausted the appropriation made by the

Legislature for that purpose. Your inquiry is, may

the Commission purchase additional land and estab-

lish a second Reformatory, using_ for this purpose

the money arising from a tax imposed by the Act of

September 5th, 1908, on the manufacturers and deal-

113

ers "in any beverage or drink. or liquor in imitation of or intended as a substitute for beer, ale, wine, whiskey, or other alcoholic, spirituous or malt liquors.'' You also ask that I consider in connection with this last named Act the Act approved September 19th, 1908, providing for the "future employment of felony and misdemeanor male convicts upon the public roads of the several counties of thi5 State."
I have very carefully read these Acts and I fail to perceive that either of them confers upon the
Prison Commission authority to establish another
State institution to be known as the Georgia State
Reformatory to be located at other than upon the
"State lands in Baldwin County." I beg to remain, Yours very truly, JoHN C. HART, Attorney-General.
February 16th, 1909.
HoN. J os. S. TuRNER,
Chairman Prison Commission,
State Capitol.
DEAR Sm :-Replying to your letter of the 16th inst., wherein you raise the following inquiry: "When cotton and other farm products, raised on the State Farm, are sold and converted into money, under the law, has the Commission the authority to
114

apply such proceeds to the maintenance of the farm, or must this money be placed in the State Treasury In using the word maintenance of the farm in the preceding query, the Commission means not alone the maintenance of convicts, but the necessary permanent improvement and equipment of the farm itself."
In the Act approved December 21, 1897, creating the Prison Commission for the State of Georgia. and defining their duties, powers and compensation, the following provision appears on page 74 of the Acts of 1897 : ''The Commission shall sell to the best advantage all surplus products of the penitentiary and shall apply the proceeds thereof to the maintenance of the institution as far as necessary. Should any surplus fund arise from this source they should be paid into the State Treasury annually and the Commission shall at the end of each quarter make the Governor a detailed report of all such transactions.'' The Act of September 19th, 1908, and by 10 thereof provides ''This Act is not intended to repeal or alter any of the provisions of the Act approved December 21st, 1897 . . . as to the duties and liabilities of the Prison Commission in regard thereto except such as are changed by this Act.''
There is not to be found in the Act of September 19th, 1908, anything in conflict with the provision quoted from the Act of 1897. On the contrary there is an express recognition of the duty and right of the Commission to improve the State farm and to pur-
115

chase such necessary machinery, stock, farm imple-

ments, furniture, etc.

It seems therefore to be the policy of the State

not only to maintain its State farm, but to improve

it, and to that end may use any of the funds arising

from the sale of farm products, returning the sur-

plus of course into the State Treasury.

There is an expression to be found in the general

appropriation Act of 1907, page 17 of the Acts of

1907, wherein the State appropriates for the Prison

Department a sum of money or so much as may be

needed for the support of the Prison Commission

including the Prison Farm and Reformatory for

youthful criminals. ''The proceeds of the sale of

all farm products shall be turned into the State

Treasury.'' I think the plain meaning of this pro-

vision is the net proceeds should be turned into the

State Treasury.

Assuming, of course, that the permanent im-

provements contemplated are needful and useful,

the Commission has the right to make them from

the proceeds of the sale of farm products, ''making

to the Governor at the end of each quarter a detailed

report of all such transactions.''

I beg to remain,



Yours very truly,

c. JOHN

HART,

Attorney-General.

116

May 13th, 1909.
HoN. J os. S. TuRNER, Cha.irman,
State Capitol.
DEAR Sm: I am in receipt of your letter of the 7th inst. and note your request for my official opinion whether the confinement of Jane Hunter and Fannie Manns at the Prison Farm is illegal. The statement of fact is, these women were convicted at the August term, 1908, of Habersham Superior Court, of a misdemeanor, and sentenced by the presiding judge to pay fines and also to serve twelve months on the chaingang. Subsequently thereto, but during the same term of the court, the judge addressed a letter to the sheriff of that county, as follows: ''It is hereby ordered by the court that you give Mrs. Jane Hunter, and Miss Fannie Manns1 just twenty days to complete their agreement to leave the State before you execute the sentence imposed at this term of the court for twelve months in the chain-gang, and as the girls of Mrs. Hunter, to-wit, Maud and Minnie, have rules against them for contempt of court as witnesses, I will just continue said rules and allow the girls to go with their mother, and if they never return the rules will be dismissed.'' (Signed by the judge officially.) The Hunter woman left the State but subsequently returned. The Manns woman moved to Gainesville. They were both taken in charge by the sheriff subsequently for the purpose of executing the chaingang sentence, but upon the recommendation of the
117

Prison Commission the Governor commuted their

sentences to twelve months on the Prison Farm,

where they are now confined. The statement of fact

further is that counsel for these women now insist they are being illegally restrained of their liberty

for the reason that the order above quoted nullifies

in effect the chaingang sentence first imposed.

I take it the case turns upon the proposition whether the judge had authority to prescribe the

condition if the women would leave the State he would abrogate the chaingang sentence. I. do not

understand the judge has any such authority. While

it is not a direct sentence of banishment from the

State as a punishment for crime, it is nothing less than that in its effect. It does give to the criminal

the right to choose between banishment and going

to the chaingang, but I do not understand that the

judge has authority to make such a condition. To

attempt this is to do by indirection what the Constitution of the State forbids by direction, ''Neither

banishment beyond the limits of the State, nor whip-

ping as a punishment for crime shall be allowed." Art. 1, ~1, par. 7 in the Bill of Rights. The judge's order to the sheriff, therefore, is a nullity and the women are at present legally confined at the Prison

Farm.

Yours very truly,

c. JOHN

HART,

A ttorney-Gevneral.

118

May 20th, 1909.
RoN. RICHARD JoHNSON,
Secretary Board! of .Trustees State Sanitarium,
Grays, Ga.
DEAR SR :-Replying to your request this day submitted for official opinion on the question propounded through you by the board of trustees of the Georgia State Sanitarium:
Your first inquiry is : ''Has the board of trustees the right to prescribe forms under which commitments to the asylum of patients are to be
made~''
Under chapter 1 of the Political Code, dealing with the power of the trustees of the asylum, now the Georgia State Sanitarium, and especially under 1412 to 1415 inclusive, it is provided: "Lunatics, epileptics, idiots and demented inebriates shall be admitted to and discharged from the lunatic asylum under such rules and regulations as the trustees of said asylum shall prescribe.'' It is further provided ''which rules and regulations when thus established shall be executed and carried into effect by the superintendent and other officers of said asylum;" and further, "It shall be the duty of said trustees to cause to be furnished to the different ordinaries of this State copies of said rules and regulations." I do not understand that it is the purpose of these sections to confer upon the trustees power to prescribe rules for the commitment of patients to the sanitarium not harmonious with
119

~2573 of the Civil Code, providing for commitment to the asylum of persons non compos mentis. The sections above, 1412 to 1415 inclusive, may be questioned as having any application at all to the method of commitment. They perhaps apply only after . commitment in conformity with 257& They are to "be executed and carried into effect by the smperintendent and other officers of said asylum.'' Be that as it may, they do not however abrogate ~2573 of the Code, and should the board prescribe a rule or regulation even for the commitment of a patient t<? the asylum the rule and regulation must at least harmonize with ~2573. That section is directed to the ordinary and is mandatory and relates to proceeding and persons not yet within the jurisdiction of the board of trustees of the Sanitarium. The board may prescribe rules and regulations for the patient after legally committ!;ld to the asylum, but not relative to the procedure anticipating commitment to the asylum.
Your next inquiry is: "In case of the f,ailure or refusal of the ordinary to use the form prescribed by the board for commitment, what is the duty of the trusteeS' relative to receiving or rejecting the patient 7"
The reply above to the first inquiry answers in part this. The trustees not having the power to prescribe the form of a commitment conflicting with 2573, the ordinary is not bound to follow the.form prescribed by the trustees in violation of the provision of ~2573 of the Code, and ~here therefore a
120

patient had been committed under a form prepared by the ordinary, assuming that he has properly and legally prepared it, it would be the duty of J he trustees to receive the patient, though not in the exact form as they prescribe. If the patient has been legally committed the duty of the trustees is plai.I1 to receive the patient. If the patient has been illegally and improperly committed, the duty of tlw trustees is equally plain to decline to receive the patient until properly committed. It wouh1 be the duty of the officer conveying the patient to the asy lum upon discovery that the patient has been improperly committed to carry him back to the authorities committing him to correct their error, or to arrange with the trustees of the asylum to tem porarily lodge the insane perP.on at the asylum until the papers could be correCted.
Your' further inquiry is: "What power has the ordinary to commit under 2582 of the Code where the patient had not previously been adjudged in--
sane~''
My interpretation of that section is that it has reference to insane persons in some proceeding heretofore so adjudged and not having been committed to the asylum, yet adjudged a fit subject for guardian. That provision in substance contemplates that such person has become dangerous to society and authorizes either the ordinary or in his absence or unable to act, the judge of the superior court to summarily investigate the facts and commit such person to the asylum. There is no provision
121

in this section for the appointment of a jury, for as stated it deals with .persons already adjudged insane suddenly becoming violent. Having before been adjudged insane the ordinary or judge of the superior court, as the case may be, may investigate the facts as to whether or not such insane person is dangerous to society and commit him without the aid of a jury. I feel sure this must be the proper interpretation or else it would be competent for the ordinary upon the affidavit of a single person without notice to any one and without a trial to commit the person to the insane asylum. This can hardly be the meaning of the section, and if it were, it would be the denial of personal liberty without due process. I do not mean to say that the ordinary or the judge of the superior court could not confine a person dangerous to society upon affidavit, but that after this is done before such person could be committed to the asylum proceedings should be instituted in conformity with ~2573 of the Code and the issue of insanity tried by a jury. I think the two sections last quoted are in harmony given this interpretation and serve to protect the public from any injury at the hands of such insane person, and preserves in the meanwhile his right to trial by jury before deprived of his liberty.
The foregoing I conceive answers substantially your inquiries.
Yours very truly,
! c. OHN HART,
Attorney-General.
122

March 11th, 1910.
HoN. G. R. HuTCHENS,
Cha.irman Prison Commission,
State Capitol.
DEAR Sm:-I beg to acknowledge receipt of your letter of the 11th inst. in which you request that I shall advise if the Prison Commission has authority to assign to the State Farm a misdemeanor convict who has been sentenced by the court to a ''straight chaingang sentence.'' The occasion for this request grows out of the fact, as stated in your letter, ''that you now have a man and woman convicted of mis~emeanors in a county that does not work its convicts, and the man being unable to work cannot be assigned anywhere. No county will take either the man or the woman.''.
In my opinion the Act approved September 19, 1908, confers upon the Prison Commission authority to place on the Farm these convicts. I quote in part 8 of the Act referred to: "Provided that the Prison Commission shall have authority in their discretion to place any number of said convicts on the State F'arm to be used on said Farm to do farm work or such other labor on said farm as the Prison Co:r;.uni:ssion may deem best.''
I repeat, I think the Act in terms confers this authority upon the Commission, and th'il very necessity of the case requires this construction.
Yours very truly,
c. .JOHN HART,
Attorney~General. 123

December 21st, 1909.
RoN. G. R. HuTCHENs,
Chairman Prison Commission,
State Capitol.
DEAR Sm :-<1 am in receipt of your letter of the 21st inst. enclosing letter from the clerk and county attorney of the County Commissioners of Clarke county, in which the inquiry is raised "whether or not the convicts could be used by the county authorities for the purpose of constructing, grading and maintaining thoroughfares through the University\ campus as a part of the public works," as contemplated by the Act approved September 19, 1908. Under the statement of fact in the letter I gather that it is the purpose Of Dr. Andrew M. Soule, President of the Agricultural College of the University of Georgia~. to arrange with the Board of County Commissioners of Clarke County in grading and constructing streets and roads through the campus of the University of Georgia. I understand from the letter the county authorities are willing to do this if these streets and roads may be held to be 11 public works'' within the meaning of the Act supra, under a contract the exact limitation as to compensation to the county authorities for the use of the convict is not set forth in the letter. The several inquiries relative fo their use and compensation therefor may be embraced in the one, viz., may the county authorities perform this work for compensation?
124

The Act in question had one purpose about which there can be no dispute, to-wit, the abol.ition of a system for the punishment of convicts which permitted the leasing of convicts for hire by either a person or a corporation. The Legislature sought to abolish the lease system, and the Act should be con~trued in the light of that evident purpose. The present purpose of the law is the "employment of felony and misdemeanor male convicts upon the public roads of the several counties of the State." The words quoted are taken from the title of that Act. There are two questions therefore to be considered: first, are these streets and roads over the campus of the University "the public roads" of the county~ This is a question of fact rather than one of law and is to be determined by the question whether these streets and roads are used by and for the benefit of the public. I am not familiar with the facts and could not therefore advise thereon as to this question, except to say if the roads- are free to the public, are used by, and are useful to, the public generally, I should think that they might well be classed as public roads within the meaning of the Act, notwithstanding the fact they are located upon land the title to 'which is in the University. If they are dedicated to the public use I can well understand how they might be properly classed as public roads within the meaning of the Act. Such an use and dedication would in fact constitute them public roads. If the county authorities should recognize the necessity for such roads for the public convenience
125

I think they could properly and legally enter into a contract with President Soule of the Agricultural College of the University of Georgia to open up these roads ~hrough the land in question. I do not believe they would violate either the letter or the spirit of the Act to stipulate as a consideration for the work that the convicts_ shall be supported and maintained during the time they are doing this work by the University. I believe however that a contract which had for its purpose the making of ,money would violate at least the spirit of the Act in question.
_So, the conclusion of the whole matter is, if the County Commissioners of Clarke county believe that these roads are useful to the public they may legally use the convicts in opening and establishing the roads and to receive therefor from the University compensation not exceeding the cost of their maintenance and support while doing so.
I beg to remain, Yours very truly,
JOHN c. HART,
Attorney-General.
October 18, 1909.
RAILROAD CoMMISSION OF GEORGIA,
State Capitol.
DEAR Sms :-Replying to a recent request of yours for my official opinion relative to the Act ap-
126

proved August 13th, 1909, prescribing the manner,

terms and specifications for letting the public print-

ing, etc., I beg to advise :

At least untilthe public printing is again let the

provisions of the Act would not apply to your de-

partment. I am very sorry that I have not the Act

before me, but it has been called to my attention and

I have very carefully considered it, but would not

like to rule at this time and without reviewing the

Act, its future effect upon your department. Suffice

it to say as I recall the Act the Printing Commis-

sion had to advertise for bids, etc. Until, therefore,

this provision of the law has been complied with I

do not think it would include the printing of a de-

partment which was not embraced in the contract
when let. Your department, as I understand, has a

fund set aside for the purpose of doing your print-

ing and in fact you had beep having your printing

done under an arrangement with a printer whereby

"the report remained set up from year to year." I

therefore advise for the present, until there is an ad-

vertisement by if:he Commission to let all of the

public printing, and a competitive bid in pursuance

thereof, the Act of 1909 does not embrace your de-

partment. After this advertisement has been had

and the printing let for another year the question

whether your department falls within the provisions

of the Act will then be decided if the question is

raised.

I beg to remain,

Yours very truly,

JoHN C. HART,

A ttorney-Geneml.

127

May 13th, 1909.
MEssRs JoEL HuNTER, S. C. CooPER, HunsoN MooRE,
Atlanta, Ga.
DEAR Sms :-I am in receipt of your recent communication requesting that I advise relative to a small surplus of money which the board has in hand arising out of the provisions of the Act approved August-, (Acts 1908, p. 87).
After very carefully reading this Act in the presence of your Mr. Moore I reached the conclusion the purpose of the Act, so far as the State is concerned, was to provide a board of examiners of public accountants to the end that only efficient men rp.ay be authorized to engage in this business. It is not a revenue measure. The State is perfectly content, as evidenced by the purpose and provisions of the Act, with its being ~elf-supporting. I think the Legislature in the provision of fees, contemplated the fee of $25.00 to be paid by the applicant went to the board to pay expenses incident to the examination, including the stationery, clerk hire, traveling expenses, etc., of the board, and under this interpretation, manifestly the compensation which the board will receive, if it could be called that, for services rendered, is insignificant.
I think, therefore, under the very board provision the fee of $25.00 to be paid by the applicant to cover expenses, etc., contemplated as far as it would go to pay the services of the board of examiners.
128

I should have answered your letter earlier but for press of official matters.
I beg to remain, Yours very truly, JOHN C. HART; Attorney-General.
July 21st, 1909.
MRs. MAUD BARKER CoBB, Sta,te Librarian, State Capitol.
MY DEAR MRs. CoBB :-Replying to your letter of the ] 2th inst. in which you express the desire to republish with annotations volume 34 of the Georgia Reports, requesting my official opinion thereon :
In your letter you assume as a fact that ''it has been forty-two years since the original copyright of volume 34 Georgia,'' citing the letter from the "Register of Copyrights." Upon investigation I learn that you are misinformed as to the length of time since the original and renewal of the copyright of volume 34 Supreme Court Reports of Georgia. The renewal will not expire until December of the present year. Until then, therefore, you would not have authority to republish this volume.
I beg to remain, Yours very truly, .JoHN C. HART, Attorney-General.
129

February 24th, 1909.
CoL. WM. G. 0BEAR, Qua,rtermaster-General, Atlanta, Ga.
DEAR SIR :-Replying to your recent communication that I advise "if there is any authority of law for loaning or issuing State Military property to any person, military school or other organization not a part of the regularly organized militia of the State,"
I beg to advise there is no law authorizing such loan.
I beg to remain, Yours very truly, .JoHN C. HART, Attorney-General.
September 13th, 1909.
l-IoN. H. W. HILL, Chairman Railroad Commission, State Capitol. DEAR SIR : - I am in receipt of your letter of the
lOth inst. in which you call my attention to the provisions of the Act approved August 22, 1907, and especially 3 of the Act providing for the election of a chairman of the Railroad Commission and the requirement that the chairman "shall give his entire time to the duties of the office,'' etc. You raise two questions, first: whether under the language of this
130

Act you may leave the city for your home on Satur-

day morning, returning Monday in time for business;

second, may you take the "usual vacation that busi-

ness men take during the year.''

I think the provisions requiring the chairman to

give his ''entire time to the duties of the office,''

means that he shall have no other business except

that of railroad commissioner. I do not think there-

fore that you would violate this law in going to your

home in Meriweather county on Saturdays, or

oftener if the business of your office will allow; nor

does the Act mean tpat you could not take reason-

able recreation, assuming of course that arrange-

ments may be made with other members of the Com-

mission to serve in your absence. The purpose of

the Act manifestly is only to require that there shall

always be some one present who could give the public

information when asked for, and the Act placed this

duty upon the Chairman primarily and increased his

pay accordingly.

I beg to remain,

Yours very truly,

c. JOHN

HART,

Attorney-General.

September 27th, 1909. MR. KYLE T. ALFRIEND,
Member Board of Trustees State Sanitarium, Macon, Ga.
DEAR Sm:-I am in receipt of your letter of the
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~4th inst. I note the matter is being discussed of the Board of Trustees of the Georgia State Sanitarium directing that the Treasurer shall deposit the money appropriated to the Sanitarium in some bank or with some person who would pay interest thereon. You ask if the _Board should direct this course in the event of loss would the Treasurer and his bondsmen he released.
I am inclined to think such would be the effect if he deposited under the direction of the Trustees and the money should be lost. Nor do I understand that the Trustees would have auth_ority to do this, certainly it was not contemplated that the money should be loaned out by the Trustees or deposited with banks to produce' a revenue. It is commendable in the Trustees to wish to save every dollar for the S.tate possible, but I fear in the event of loss, should this money be deposited, that the Board might be criticised as being over zealous. Pardon, however, these suggestions on my part, but answering your question, it does not occur to me that it would be proper for the Board in view of the bond which the Treasurer has given, to undertake to direct him where he shall deposit the money.
Yours very truly,
.JOHN c. HART,
Attorney-General.
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