The annual report of H. A. Hall, Attorney-General of Georgia, with an appendix containing opinions from July 15, 1910, to July 1, 1911

THE ANNUAL REPORT
OF
H. A. HALL
ATTORNEY-GENERAL OF GEORGIA
WITH AN APPENDIX CONTAINING OPINIONS
FROM
JULY 15,1910 TO JULY 1, 1911
ATLANTA, GA.
CHAS. P. BYRD, STATE PRINTER. 1911.

Attorneys General of Georgia
VVrn. Stephens _____________________________ 1776-1780 John~illedge _____________________________ 1780-1781 SarnuclStkk _____________________________ 1781-1785 Nathaniel Pendleton _______________________ 1785-1786 ~atthew ~cAllister _______________________ 1787-1791 cteorgeVValker_____________________________ 1792-1795 David B. MitchelL ________________________ 1796-1806 Robt. VValker _____________________________ 1807-1810 John Forsyth______________________________ 1810-1810 l\ichard Henry Wilde _________ --c __________ 181)~1815 Roger L. (}amble __________________ .. ______ 1816-1819
From 18~ Solicitor cteneral of the Middle Circuit was by virtue of his office lt:lting Attorney cteneral. The office of Attorney cteneral was revived it. 1868.
Henry f Farrar. ------------------------1868-1872 N.J. Hanrnond . --------------"----------1872-1876 Robt. N. l:ly______________________________ 1876-1880 CltifordAxrlerson __________________________ l880-1890 George N. IP.ster __________________________ 1890-1892 VVrn. A. LittU (Asst.) __ , ____________________ 1891-1892 Joseph ~. Tirrell_- _______________________ 1892-1902 Boykin VVriglt_ __________________________ 1902John C. HarL _____ ~ ______________________ 1902-1910
H. A. Hall--------------------------------1910-1911

ANNUAL REPORT
OF
H. A. HALL
ATTORNEY-GENERAL OF GEORGIA
To His Excellency, JosEPH 'M. BROWN, Governor:
SIR: I have the honor to submit my report covering the period from July 15, 1910, to July 1, 1911, being the full period of my incumbency. A condensed statement is herein made of the important suits and actions at law conducted by this office during that time, and the present status of the same. There is also included the more important opinions given by this office to various Departments. Opinions of a local nature and those dealing with questions of temporary interest, as well as' a large number of oral opinions, have been omitted. I have deemed it necessary to include only those touching questions of general public interest.
In addition to the opinions given to the various Depal'tments of the State government, a very large number have been rendered to county and municipal officers. While, under the law, this office is not required to advise county and municipal officers, and the doing so entails the labor of much and tedious investigation, the custom has prevailed thro~gh

4

REPORT OF ATTORNEY-GENERAL.

many years, and the duties thus assumed are not without the compensating pleasure of being helpful to these public officials.
A list of the capital cases in which I have represented the State in the Supreme Court of Georgia during my term are herein below set out. In some of these cases the court has not as yet rendered judgment.
Brunswick McCray vs. State. Bryan Co. Life imprisonment. ~Reversed.
B. F. Perdue vs. State. Pike Co. Plea former jeopardy. Affirmed.
Henry Patterson vs. State. Sumter Co. Death sentence. Affirmed.
,Joe Roberts vs. State. Bullock Co. Life imprisment. Pending.
Earnest Moreland vs. State. Douglas Co. Rape. Ten years. Affirmed.
Arthur Ricketson vs. State. Ware Co. Life imprisonment. Reversed.
Frank Brooks vs. State. Fulton Co. Death. Affirmed.
Charles Allen vs. State. Emanuel Co. Life imprisonment. Affirmed.
Jim .Jackson vs. State. Emanuel Co. Rape, 12 years. Affirmed.
Tesse Cook vs. State. Bartow Co. Death. Affirmed.
Homer Williams vs. State. Dooly Go. Life imprisonment. Affirmed.
Sam Graham vs. State. Early Co. Rape, 10 years.
Arthur Lewis vs. State: Crisp Co. Life imprisonment. Affirmed.

REPORT OF ATTORNEY-GENERAL.

5

B. F. Perdue vs. State. Pike Co.. Life imprisonment. Pending.
Wm. Rouse vs. State. Worth Co. Death. Reversed.
R. M. Lucas vs. State. Life imprisonment. Dismissed accoulif escape of accused.
Jordan Swain vs. State. Montgomery Co. Life imprisonment. Affirmed.
Eugene Roberts. Chatham Co. Death. Dismissed for want of prosecution.
Ed. Brooks vs. State. Forsyth Co. Life imprisonment. Affirmed.
Frank Tucker vs. State. Liberty Co. Life imprisonment. Affirmed.
Frank Robinson vs. State. Laurens Co. Life imprisonment. Affirmed.
Bob Baynes vs. State. Jasper Co. Life imprisonment. Reve.rsed.
J'Ohn Gadsen vs. State. Chatham Co. Life imprisomrtent.. Reversed.
Hiley Williams vs. State. Houston Co. Death. Affirmed:
Alfred Jordan vs. State. Chatham Co. Life imprisomnent. Reversed.
Bose Cason vs. State. Haralson Co. Life Imprisonment. Affirmed.
Tom Mize vs. State. Milton Co. Death. Reversed.
Ed Felder vs. State. Wilcox Co. Life imprisonment. Reversed.
Eddie Brown vs. State. Liberty Co. Death. Affirmed.
Charles Scott vs. State. Washington Co. Death. Affirmed.

6

REPORT OF ATTORNEY-GENERAL.

Johnson Flanagan vs. State. Cobb Co.. Life im-

prisonment. Reversed. ; -::Bose Watson vs. State. Emanuel Co. Life im-

prisonment. Affirmed.

Ike Rushing vs. State. Jones Co. Death. Af-

firmed.

Willie Whitfield vs. State. Washington Co.

Death. Affirmed.

Will Bowers vs. State. Coweta Co. Life impris-

onment. Affirmed. Paul Reeves vs. State.

Coweta Co.

Life ?~pris

onment. Affirmed.

J. R. Dukes vs. State. . Polk Oo. Death. Af-

firmed.

John McKenzie vs. State. Upson Co. Death.

Pending.

Elwood Roberson vs. State. Dodge Co. Death.

Affirmed.

Prince Gale vs. State. Glynn Co. Life Impris-

onment. Affirmed.

Orange Rucker vs. State. Franklin Co. Life im-

prisonrhent. Affirmed.

John Hart vs. State. Colquitt Co. Life impris-

onment. Reversed.

Bill Delks vs. 8tate. Clinch Co. Life imprison-

ment. Reversed.

Ed Weaver vs. State. DeKalb Co. Death. Re-

versed.

W. J. Widencamp vs. State. T~ttnall Co. Life

imprisonment. Affirmed.

Martin Delegal vs. State. Mcintosh Co. Death.

Clarence Waycaster vs. State. Floyd Co. Life

imp:risonment, _H~versed.

REPORT OF ATTORNEY~GENERAL.

7

.:1 F. T. Taylor vs; State. Appling Co. Death. Affirmed.
Thos. H. Jones vs. State. Bibb Co. Life imprisonment. Affirmed.
<Sell Boyd vs. State. Terrell Co. Life imprisonment. ReverS'ed.
Bill Brown vs. State. Pulaski Co. Life imprisonment. Reversed.
J. C. Hunter vs. State. Chatham Co. Death. Affirmed.
Arch Matthews' vs. State. 'Polk Co. Life imprisonment. Reversed.
Lucius Godfrey vs. State. Meriwether Co. Life imprisonment. Affirmed.
John J. Withrow, Jr. vs. .State. Fannin Co. Death. Affirmed.
Woodward Cargile vs. State. Jasper Go. Life imprisonment. Affirmed.
Cornelia Walker. Jasper Co. Life Impnsonment. Affirmed.
Tlom Jackson vs. State. Lowndes Co. Death. Affirmed.
Joe Tillman vs. State. Twiggs Co. Life imprisonment. Affirmed.
Daniel Wright vs. State. Coweta Co. Life imprisonment. Affirmed.
Marcellus Stallings vs. <State. Coweta Co. Life imprisonment. Affirmed.
Emma Wimms. vs. State. Tm:ner Co. Life imprisonment. Affirmed.
Lethie Higdon vs. State. Laurens Co. Life imprisonment. Affirmed.
Dock Fitzgerald vs. State. FayetteCo.. Life imprisonment. Affirmed.

8

REPORT OF ATTORNEY-GENERAL.

Harry Paschal vs. State. Lincoln Co. Death. Affirmed.
J. W. Barnett vs. State. Gwinnett Co. Life imprisonment. Affirmed.
Sallie Washington vs. State. Lowndes Co. Life imprisonment. Affirmed.
Fenton Driscoll vs. State. Fayette Co. Life imprisonment. Affirmed.
Cleveland Speer vs. State. Pike Co. Rape, 7 years. Affirmed.
John Zachry vs. State. Heard Co. Life imprisonment. Affirmed.
Henry Harris vs. State. Liberty Co. Life imprisonment. Affirmed.
Johnson Flanagan vs. State. Cobb Co. Life imprisonment. Reversed.
John Richards vs. State. Early Oo. Life imprisonment. Affirmed.
Wm. Rouse vs. State. Worth Co. Death. Affirmed.
Randolph Dotson vs. State. Appling Co. Life imprisonment. Affirmed.
Ed Jones vs. State. Baker Co. Death; ... Affirmed.
W. J. McNaughton vs. State. EmanueL Co. Death. Affirmed.
Neal Bonner vs. State. Carroll Co. Ufe Imprisonment. Affirmed.
Leonard Worley vs. State. Hall Co. Life Imprisonment. Reversed.
Sam Brown vs. :State. Appling Co. Death. Pending.
Andrew Watson vs. State. Bulloch Co. -Life imprisonment. Affirmed.

REPORT OF ATTORNEY-GENERAL. .

9

Joe Darsey vs. State. Laurens Go. Plea of

former jMpardy. Affirmed.

Rohert'Lawson vs. State. Richmond Co. Death.

Pending.

Sol Lewis vs. State. Terrell Co. Life imprison-

ment. Affirmed.

Will Hutchins vs. State. Baldwin Co. Life im-

prisonment. Affirmed.

Frank Griffeth vs. 8tate. Oconee Co. Life im-

prisonment. Affirmed.

P. L; Morgan vs. State. Laurens County. Life

imprisonment. Pending.

Hiram Moore vs. State. Chattooga Co. Life im-

prisonment. Pending.

Dan Grant vs. State. Glynn Co. Life imprison-

ment. Pending.

John Watson vs. State. Jasper Co. Life imprisonment. P~nding.

Sam Drew et al. v-s. 8tate, Chattooga Co. Life im-

prisonment. Pending.

.. ..

Johnie :I{ey vs. State. Webster Co. Rape. Four

years. Pending.

In addition to the capital cases cited the State is

a party in several important suits now pending in

the eourts.

STATE OF GEORGIA VS. TENNE8SEE COP- . PER CO., ET AL.
The issu~ involved in this case are familiar tothe public ati need not here be recounted. Through , : . the able e:ffortil of my 'Predecessor in.office, Ho!r. Jno.: :..: C. Hart, in a suit instituted hy hi,Oldn:the::Supr.eme.:.~::..
Court of the United States1 the State had establishe4

10

REPORT OF .ATTORNEY-GENERAL.

her right to a :final injunction if she insisted upon it, after allowing a reasonable tim_e to the defendan,t$ to 'Complete the structures then nnder co~struct.ion and the efforts they were making to stop the fmpes. The State very properly allowed the defendant companies time in which to perfect their plants, and: appliances for the collection and conversion into a:cid of the sulphur fumes. Thus matters stood at thtl time I came into office. During the summer of 1910 many and persistent complaints came to this office of the damage being done in the district contiguous to the mines. I made a personal visit to the territory claimed to be affected and found much discontent among a large number of the citizens. The State Chemist, Dr. R. E. Stallings, was requested by your Excellency to visit the territory and report the conditions as he might :find. .After a personal investigation he wrote you the following letter, which was turned over to this ofiice :

. .

.

November 9, 1~10.

To His Excellency, Hon. J os. M. Brown, Gov~r~o;t:;,.

State Capitol, ,Atlanta, Ga.

Dear Sir: -' .At your request for a report on the c.o:nditions

existing at the Tennessee Copper Company's plant,

at: Copper Hill, T:enn., as to the amount of sulphur

dioxide tha(is being iiberated in ;the air, I visited

their plant on September 30th, accompanied by my

:first assistaant, Mr. S. H. Wilson.

'

We secureg from~ the officials 'Of the company: a
the stat~m.ent as to the .,amomit .,_O'f or.e :treated;

atp.ount of slag prpd_uc~.d, and the::amouilti 'Of 7sul-

ph1lric f'cid :mt)..de ~ach d&y.: ~~ -: ~- ;r .. r .- ~' - ::': -~

. REPORT OF ATTORNEY~G.EN.ERAL.

11

0re treated -------------------------- 1,000 t9ns The amount of slag produced containing
2 per cent: sulphur ,____________ .:. ____ 1,000 .tons
The amount of sulphuric acid produced, containing 78 per cent. acid________ 340-380 tons We also made an inspection of the plant. At
.,this time four furnaces were in operation, and we noted the methods for collecting the gase& anq the manufacture of sulphuric acid.
We secured samples.of the ore and made an analy. sis of the same to determine the amount of sulphur, which was 26.03 per cent By using the above data, I have computed the amount of sulphur as being Iiberated in the air as follows : .The amount of sulphur in the ore_______ 260.3 tons The amount of sulphur in the slag______ 20.0 tons 'fhe amount of sulphur in the sulphuric
.:acid, using 380 tons of 78){, strength__ 96.9 tons , . Deducting the amount of sulphur in the su1phuri(' acid, and slag from that in the ore, there is a loss in the air of 143.4 tons per day, equivalent to 286.5 tons of sulphur dioxide. : A portion of this sulphur dioxide is driven off in .. the process of smelting from the Bessemer furnaces and is liberated from the small stacks. There tis also some fumes lost around the furna~es, and a large amount goes through the tall stack which they have erected for the purpose of carrying off these gases. Of course, the amount of sulphur dioxide liberated would vary from time to time because of the variability of the ore smelted, and the amount of acid produced. The ore that was being used mairily at'the time of my visit was from the "Burra" mine;and I was informed that the sulphur content of

12

REPORT OF ATTORNEY-GENERAL.

the ore from this mine is somewhat higher than that of the ore from the London and Polk county mines. 'fhe variability in the sulphur content of the ore is one of the difficulties that is being encountered by the company, as it makes it difficult to regulate the flow of gases. There is now in course of construction at their plant a "bedding" plant, where they will be able to mix the ore from the different mines and thus secure an ore that will not be so variable. 'f,here is also in course of construction a large number of lead chambers which they state will be completed by January the first, and then they claim they will produce six hundred tons of acid daily. ,
Respectfully submitted, R. E. STALLINGS;' State Chemist.

I requested of the attorneys of the copper companies a copy of the last annual report made by them, which was promptly sent me. I gave this report to the State Chemist with the request that he take the figures of the company as therein contained and upon the basis of these figures ascertain the amount of sulphur dioxide being liberated daily in the air. In response to this request he wrote me the following letter:

ATLANTA, GA., December 10, .1910. . Ron. Hewlette Hall,
Attorney-General, .Atlanta, Ga.
Dear Sir: According to your request I have taken the re-
. ports and Rtatements of account of The T~mnessee

REPORT OF ATTORNEY-GENERAL.

13

Copper Company for the year ending December 31, 1909, and find that 439,365 tons of Tennessee sulphide ore were handled in the smelting and converting operations for that year, or approximately 1,200 tons daily.
Assuming this ore to carry 26 per cent. sulphur (like the sample anaiyzed in this laboratory), the amount of sulphur in the ore treated daily would be 312 tons. Deducting 24 tons of sulphur for the estimated amount of sulphur in the slag and 97 tons .of sulphur in the 380 tons of sulphuric acid, claimec~ by the officials of the company to be made daily, there would be liberated in the air approximately 191 tons of sulphur, equivalent to 381 tons of sulphur dioxide, each day.
As stated before, this calculation must be necessarily approximate, as the ore no doubt will vary in .its sulphur content.
Yours very truly, R. E. STALLINGS, State Chemist.
~-,rom the information thus received I was convinced the company was smelting ore in excess of the capacity of the acid chambers to collect and convert the fumes into commercial acid. I accordingly notified the company that unless there was a restriction of the smelting operations to the capacity of acid chambers I should move in the court for an injunction. After some negotiation a satisfactory agreement was reached. Embodying this agreement counsel for the copper company joined with me in the following motion, which was filed in the Supreme Court of the United States and made a part of the record in the case there pending:

14

REPORT OF ATTORNEY-GENERAL.

IN THE SuPREME CouRT oF THE UNITED STATES;
Octo'ber Term, 1906. No. 5, Original.
The State of Georgia, Complainant, vs.
'rhe Tennessee Copper Company and The Ducktown Sulphur, Copper & Iron Company, (Ltd.)

Come now the State of Georgia by its AttorneyGeneral, H. A. Hall, and 'rhe Tennessee Copper Company, by its attorney of record, Howard Cornick, and respectfully represent to the l:ourt that the parties to the above entitled cause have entered into the following stipulations and agreement, towit:
"I. Whereas, on the 13th day of May, 1907, the Supreme Court of the United States in the above Htyled case delivered an opinion declaring among other things that, 'If the State of Georgia adheres to its determination, there is no alternative to issuing an injunction, after a.llowing a reasonable time to the defendant to complete the structure that they are now building and the efforts they are making to stop the fumes,' and,
''II. Whereas, the said acid plant of the defendant, 'rennessee Copper Company, costing more than $1,000,000.00, has been enlarged and just recently finished, but it is found by said defendant that it is now found necessary to expend additional sums of money, estimated to be more than $100,000, in order to bring the said aeid plant up to a state of greater efficiency and perfection; and,
"III. Whereas, the said defendant is unwilling to spend said additional sums of money without assur-

REPORT OF ATTORNEY-GENERAL.

15

a.nce of the opportunity to test out the efficiency of its newly finished and enlarged acid plant for several years; and,
"IV. Whereas, The State of Georgia, realizing the benefits derived by the great population of her own citizens, as well as the citizens of other States and the South generally, from the continued operations of the defendant, and not desiring to unduly press her rights for injunction in the premises, is willing to allow a reasonable time to said defendant within which to test out the efficiency of said acid plant and to make corrections thereto in order to bring said acid plant up to a greater state of efficiency and perfection:
"It is Therefore Agreed and Stipulated, between the complainant, State of Georgia, and the defendant, Tennessee Copper Company, as follows:
''First: The TenneS'see Copper Company during the growing months from May 20th to August 31st, of each of the years 1911, 1912, and 1913, shall not operate more green ore furnaces than are necessary to permit of operating its sulphuric acid plant at its normal full capacity.
" 1Second. That on or before the lOth day of June, 1911, the Tennessee Copper Company shall make to the Attorney-General of Georgia a verified statement showing how much green ore was smelted and how much sulphuric acid was made from May 20th to May 31st, 1911, both inclusive; also, on or before July lOth, 1911, a similar verified statement shall be made to the Attorney-General covering the period from June 1st to June. 3oth, 1911, both inclusive; a.lso, on or before August lOt}l, 1911, a similar state~ent covering the period from JuJy 1st to Jul~ 31st,

16 -

REPORT OF ATTORNEY-GENERAL.

1911, both inclusive ; also, on or before September lOth, 1911, a similar statement covering the period from August 1st to August 31st, 1911, both inclusive. Also, similar reports to be made on corres-ponding dates to cover corresponding periods in the years' 1912 and 1913, respectively.
''Third: It is further stipulated and agreed between the parties hereto, that no other or further orders or decrees shall be applied for in this case by either party prior to the October, 1913, term of this Court. If after the October term, 1913, either party should intend to make an application for any order or decree, it will give to the other at least thirty days' notice of its intention."
The premises considered, the parties hereto respectfully move the Court that the said stipulations and agreement be filed and made a part of the recorrl in said cause, and, under the terms and conditions of said agreement, that said cause be postponedunti'J the October term, 1913, of said Court, without preju: dice to either party.
H. A. HALL,
Attorney-General' of Georgia.
HowARD CoRNICK,
Attorney for Tennessee Copper Company.

By this agreement the State of Georgia secures all that could reasonably have been expected at the end of litigation that might have been tedious and expensive. I have every assurance that the company will in good faith keep its part of the agreement and feel hopeful that this may be a happy and satisfactory solution of an otherWise vexatious situation.. While the welfare of the citizens of Georgia living

REPORT OF ATTORNEY-GENERAL.

17

in the district affected was of paramount concern to this Department, I could not sympathize with a spirit that would needlessly destroy a great industry and:une of vast and growing importance to the agri-. cultural interest of the State and of the whole South.

LOUISVILLE & N.&SHVILLE. RAILROAD COMpANY AND ATLANTIC COAST, LINE RAILROAD COMPANY VS. WM. A. WRIGHT.
This is a' suit in equity, filed in the Circuit Court of the: United States for the Northern District of Georgia by the complainant railroads, as lessees of the Georgia Railroad, against Comptroller-General Wright, for the purpose of enjoining the collection of State, county, municipal and school district taxes from the lessees on the property known as the Georgia Railroad, held by the lessees under a ninety-nine year lease, and on certain terminals in Atlanta and Augusta, Georgia, acquired and purchased by the lessees since the lease, and on certain rolling stock and equipment acquired and purchased by the lessees since: the ]ease; aU of this acquired realty and personalty having been bought with taxable funds of the lessees. It is proper to remark that this litigation arose out of a former suit by the ComptrollerGeneral to subject to taxation the property of the Georgia Railroad. In the former suit my predecessor, Hon. Jno. C. Hart, and Hon. Samuel H. Sibley, represented the interests of the State and succeeded in subjecting a part of tlie property sought to be made liable to taxation in that case. Being familiar with the-litigation, their services were en.

18

REPORT OF ATTORNEY-GENERAL.

gaged in the pending suit. The credit for the able manner in which the State's interest has been thus far managed is due to them. The lessees contend that by virtue of the charter of the Georgia Railroad., granted hy the State, all the property known as the Georgia Railroad is exempt from all taxes except that pro~ided for in the charter, to-wit: one-half of one per cent. of the net income of its investments. That this exemption inheres in and follows the property, and the lessees having acquired by lease the property, is liable for only a tax of one-half of one per cent. on the net income from said railroad.
The State contends that the charter exemption relative to taxation was personal to the Georgia Railroad; that it does not inhere in and follow the property and was not assignable; that a leasehold under the }aws of Georgia is an estate in realty and as such is taxable; that the Atlanta and Augusta terminals with their valuable improvements, and the rolling stock and equipment purchased by the lessees since the lease with taxable funds, are subject to, and should hear their proper share of the burdens of, taxation.
The case was heard on certain exceptions filed by the lessees to the State's answer, and a determina-
tion of the issues made by these exceptions will. set-
tle in a large measure the legal principles involved. Judge Wm. T. Newman, before whom the same were heard, has overruled these exceptions. Aside from settling important legal principles, should the State succeed in its contention much valuable property will be brought in for taxation which has hitherto escaped.

. REPORT OF ATTORNEY-GENERAL.

.19

WESTERN UNION TELEGRAPH CO. VS. WM. A. WRIGHT, COMPTROLLER-GENERAL.
This is a suit filed by the Western Union Telegraph Company in the Circuit Court of the United States for the Northern District of Georgia, seeking to enjoin the collection of taxes assessed by the .r~omptroller-General on the franchises of the telegraph company. This suit was pending when l came ~nto office. Hons. Jno. C. Hart and J. D. Kilpatrick having been of counsel for the State from the inception of the suit, are associated with me in the . case and have had active management. of the same.
'l'he telegraph company contends that it has no State franchise. Having accepted the privileges of the Post-roads Act of Congress, the franchises under which it operates in this State are from the Federal Government, and therefore not taxable by the State.
The State denies that the company is operating within this State under a Federal franchise, and insists that the franchises enjoyed by the company were obtained from the State of Georgia and therefore taxable. The case is still pending in the United States Court for the Northern District of Georgia.

'l'HE S'l'ATE 0~"' GEORGIA VS. TH:BJ vVES'l'ERN & ATI~ANTIC RAILROAD COMPANY.
'l'his is a suit filed by the State against the Western & 'Atlantic Railroad Company to recover certain taxes claimed by the State to be due on property not included in that which was turned over by the State to the lessees at the date of the lease. The suit was

20

REPORT OF ATTORNEY-GENERAL..

in the nature of a bill for discovery and relief, setting up that much valuable property acquired by the lessees since the lease and subject under the law to taxation was being concealed and no return thereof was being made to the proper tax officer. The defendant company demurred to the suit on various grounds, which it is not necessary to detail. The court below sustained the demurrer and dismissed the suit. The State entered an appeal to the Supreme Court, where the same is now pending. ' T1his suit was filed in June, 1909. 'Governor Hoke Smith employed as special counsel fo'r the State Ron. Hooper Alexander, who has had the exclusive management of the case.

rrHE CENT1RAL OF GEORGIA RAILWAY CO. VS. H. WABNER HILL, ET AL., RAIL~ ROAD COM1MI8SIONERS, ET AL.
THE ATLANT!IC COAST LINE RAILROAD CO. VS. H. WARNER HILL, ET AL., RAILROAD COMMISSIONERS, ET AL.
SOUTHERN RAILWAY COMPANY VS. H. WARNER HILL, ET AL., RAILROAD COMMISSIONERS, ET AL.
T'he above three suits may be grouped and described together. On January 20th, 1906, the Rail~ road Commission of Georgia issued three circulars known as Circulars Nos. 316, 317, and 318. Circular 316 placed the Central of Georgia Railway Company in Class B of the Commission's classified list

REPORT OF ATTORNEY-GENERAL.

21

of railroads; 317 placed the Atlantic Coast Line Railroad Company in Class A-1; 318 placed the Southern Railway Company in Class B.
The effect of these several circulars was to reduce the rate of freight which the carriers named were allowed to charge on intra-state shipments. Each of the carriers named filed a suit in the Circuit Court of the United States for the Northern District of Georgia to enjoin the enforcement of the particular circular applicable to it. Temporary restraining orders were granted in the cases, and thus the matter stood when I came into office. Your Excellency having called my attention to these pending matter~ I proceeded to file a motion in the Circuit Court, in each of said cases, asking that the pending restraining orders be dissolved. These motions are now pending before Judge Wm. T. Newman, and will be heard at an early date.

r~here are now pending in the Supreme Court of the United States four cases in which the State is a party defendant:
The Atlantic Coast Line Railroad Company vs. rrhe State of Georgia.
George W. Cureton vs. rrhe State of Georgia. (Two cases.)
Sam Loeb vs. The State of Georgia. The first named of the above cases involves the constitutionality of the Act of the General Assembly approved August 17, 1908, and generally known as the "Head-light Act." The other three cases involve the constitutionality of the Act of the General Assembly approved August 6th, 1907, and known as the State Prohibition law.

22

REPORT OF ATTORNEY-GENERAL.

I have filed in all the above cases, except the Loeb ~ase, motions to advance, which are now being .<:Pnsidered by the Court, and which I am hopeful will he granted.

At a previous session of the General Assembly a bill was introduced providing that the officers of_ the various courts of record in the State should furnish this office with complete data showing the number of indictments found, the number of criminal informations filed, the character and nature of the .o:ffen,se
i
charged and the final termination thereof. The measure failed of passage. Thinking the information thus sought would be of general public interest, l addressed a circular letter to the clerks of the various trial courts of record asking that they furnish me this information. It being no part of the duties of the derks to do this, and the task being quite onerous in some counties-especially so in the counties having large urban populations-only a few returns were received. The clerks of the courts of thirty-seven counties-mostly rural counties-furnished the information desired. The {lounties heard from are located in different sections of the State and may be said fairly to reveal the character of crimes prevalent in the rural counties. But the returns here presented cannot be regarded, as showing the correct per cent. of crimes as respects population in the 8tate, statistics from the counties with large urban populations, where the percentage of crime is the largest, not being included.
It may further he safely stated that violations of the prohibition law are more prevalent .iii couhties in which are located the more populous 'cities.

REPORT OF ATTORNEY-GENERAL.

23

The statistics given include only crimes for which indictments were found or criminal informations filed, and do not show the more or less numerous _petty offenses or those of a graver nature which were not taken cognizance of by the courts.
T:he period covered by the table given below is the year 1910:

. Nature of Crime.

Race

Total

Race

not

Number. White. Colored. Given.

Murder, and assaults to murder __

266

63 175

28

8~Jg~~~c~~~~~ ~~~~~~~~ ====

306 395

76 206 63 314

24 18

Larceny, various grades ________ . 489

73 294 122

Violating liquor law_____________

569

225

344

Assault and battery____________

218

98 108

12

All other crimes________________ -1173 440 733

TotaL ________ . _________ 3416 1038 2174 204

As respects tl:c total number of criminals the table shows two negro offenders to one white. But when certain specific offenses are considered, the proportion of negro criminals is largely increased. , The predominating offense is seen to be the violation of the prohibition law in its different aspects, and is almost equally prevalent among the two races.
The facts given cannot fail to impress the thoughtful citizen with the importance :of a fearless and an unwavering enforcement of our criminal laws. The habit is a common one, and growing more so, of blaming the law in every case where crime goes unpunished and the criminal escapes. The unwise censure of existing laws has caused a wide and growing clamor for the enactment of more laws. We- ~re_ fast becoming a law burdened people. ,The corrective is to be found, not in the mak-
ing of more laws, but in a better administration

24

REPORT OF ATTORNEY-GENERAL.

of the laws we have. Laws, however just and wholesome, have no power of self-enforcement. In its final analysis, the laws are dependent for their effectual enforcement upon the people. They, or the officials of their choosing, are responsible for the administration of the laws, and upon them must rest the blame for the miscarriage of justice. Under our system of government the power and duty of enforcing the criminal laws, in a very large measure, are vested in the juries. 'These are made up from the intelligent and upright citizenry. However perfect the laws may be, if the instrumentalities through which they must be administered are weak and vacillating, influenced by prejudice or moved by passion, justice will often suffer defeat and the criminal go unpunished.
The public mind must be awakened to the conviction that the fault is not in our laws but in ourselves, when crimes are not punished. Let us cease to blame the law, and level criticism at the mail or men who fail in his or their duty to impartially administer the law. When the citizen realizes his responsibility as the sole medium through which the laws can reach and punish the guilty, and, laying aside all personal considerations, is inspired with the one purpose of seeing the law vindicated and society protected, then will come a rule of civic righteousness wherein crimes will largely decrease, and whenever committed will meet sure and adequate punishment.
Respectfully submitted, H. A. HALL,
Attorney-General.

REPORT OF ATTORNEY-GENERAL.

25

OPINIONS.
May 9th, 1911. GovERNOR Jos. M. BRowN,
State Capitol. Dear Sir:-
1 am in receipt of a letter from Mr. Uhn, your pri-
vate secretary, enclosing a communication from Hon. Courtland S. Winn, Mayor of the City of Atlanta, together with a copy of a resolution passed by the mayor and council of the City of Atl'anta relative to widening Spring street so as to take in a part of the lot known as the Governor's 'Mansion lot. The letter of Mayor Winn, and also the resolution passed by the general council of the City of Atlanta, refer to
an Act of the General Assembly of this State ap-
proved October 8, 1879, giving to the Governor power to sell to the City of Atlanta ''so much of the lot known as the Governor's Mansion lot, off the west side of said lot, as may be necessary to extend Spring street into Church street by continuing said Bpring .street in a direct line until it intersects with Church street, said sale to be made by the Governor for a sum not less than $750.'' The resolution passed by the general council requests you to convey to the City of Atlanta the lot above described, and then, says: ''And on the execution and delivery of said conveyance the 8tate of Georgia be paid the sum of $750.00 therefor, said sum to be taken from the apportionment for the improvement of Spring .street.''

26

REPORT OF ATTORNEY-GENERAL.

The Act of the General Assembly referred to was &pproved October 8th, 1879, more than thirty-one years ago. T:he purpose specified in said .Ad, a-q.thorizing the Governor to sell a part of said Mansion lot, was to enable the City of Atlanta to extend Spring street into Church street. In his letter tha Honorable Mayor states that the City of Atlanta has undertaken the WIDENING of Spring street. It does not appear that the conditions and circumstances surrounding the property now are similar to what they were when the said Act of the General Assembly authorizing said sale was passed. It does not appear that Spring street has not already been extended to Church street. On the contrary, it would appear from the letter of the Mayor that the present purpose of council is to widen Spring street. Further, under the resolution passed by the general council of the City of Atlanta, only the sum of $750.00 is appropriated for the payment of the strip needed in widening said .Spring street. The General Assembly did not authorize the Governor to sell the strip in question for the sum of $750.00, but only fixed that sum as a minirimm price. That was over thirty-one years ago. It is manifest that if thirtyone years ago the Legislature thought $750.00 a fair minimum price for the property in question, the same could not be considered reasonable at this time, as property has very greatly enhanced in the City of Atlanta within the period named. Under the circumstances I do not think that it would be wise for you to accept the offer of the City of Atlanta at the price named.
In addition to the above I beg to call your attenion to a resolution passed by the General Assembly

REPORT OF ATTORNEY-GENERAL.

27

at its. session in 1910, which resolution created a commission of eight members ''for the purpose of receiving offers or proposals of any kind for the purchase from the State of the present Executive Mansion and all the grounds attached thereto in the City of Atlanta, and to consider and report thereon to the next General Assembly, and for other purposes.'' In view of this resolution, which by its terms includes the PRESENT LOT AS IT STANDS, and in view of the published action of this commission in advertising and receiving bids for the lot, I am of the opinion that it would be unwise to make any change in the present lot before the incoming Legislature deals with the report of the committee appointed under said resolution.
I therefore would advise that the whole matter be submitted to the incoming General Assembly.
Yours very truly, H.A. HALL,
Attorney-General.

July 26th, 1910. GovERNOR Jos. M. BRowN,
State Capitol. Dear Sir:. Your letter of the 23d inst. enclosing a letter from Rev. J. W. Ham, duly received.
You ask "What Section of the Constitution or the statute law authorizes the Governor of the State to interfere with the administration of justice in any county unless the officers of that county appeal to him for aid~'' I know of none.
By Article 5, Section 1, Paragraph 12 of the Constitution of this State, it is provided (among other

28

REPORT OF ATTORNEY-GENERAL.

duties of the Governor therein set forth,) "He shall take care that the laws are faithfully executed, and shall be a conservator of the pea,ce throughout the State." The clear intent of this provision is that the Governor shall act in harmony with the officers of a county rather than to seemingly ignore them in undertaking to enforce the laws himself in such county. When it is remembered that each county has its chosen officers, specially charged with the administration of the laws of the Btate in such county, it is clear that the Governor should not interfere with the due administration of the law in such county, unless it is made to appear that the officers ,charged with this duty are unable to cope with the situation or that such officers are willfully negligent in the performance of their duties. If the officers of a county should ruppeal to the Chief Executive for aid on the ground of inability on their part to meet and deal with the situation, then the Governor would be authorized, and it would be his duty, to take such steps as' was necessary to the due enforcement and administration of the law in the particular county. If it should be made to appeat to the Governor that the officers specially charged with the administration of the laws in a particular r-ounty are willfully negligent in the discharge of their duties, then proceedings conformable to the statutes should be taken for the removal of such delinquent officers. If there was any doubt as to the law upon this question, numerous precedents might be cited to sustain this view.
Sections 118 and 119 of the Political Code, dealing with the authority of the Governor to call out the military of the State under the emergencies therein

REPORT OF ATTORNEY-GENERAL.

29

named, are not applicable to the facts as set up in the letter of Rev. J. W. Ham.
Yours very truly, H. A. HALL, Attorney-General.

August 1st, 1910. GovEkNM Jos. M. BRowN,
State Capitol. DMr Sir:-
y our letter of the 29th ultimo enclosing a letter from C. F. Hemingway, relative to certain charges against J. W. Rushing, Tax Collector of Houston county, duly received.
I ani informed by the Comptroller-General that all ta::tes due the State by J. W. Rushing, T. C., have been paid. If he is not in default to the State, then the provisions' of the law relative to the issuance of an execution by the Comptroller-General against him do not apply. If he is in default to the county of Houston for taxes collected, then Sections 418 and 419 fo the Political Code would apply. Under this latter Section, (419,) the county authorities having such matters in charge would be authorized, under the conditions therein named, to suspend a tax collector until the question of his removal can be passed upon by the proper tribunal. Section 930 of the Political Code confers upon the Governor the power to vacate the commission of a defaulting tax collector. Construing this Section the Supreme Court, in the case of The State vs. Lennard, 48 Ga. 137, speaking through Mr. Justice Trippe, says:
"But in case of a defaulting tax collector, one who holds public money unaccounted for, and who, by the Constitution and the law, is ineligible to take

30

REPORT OF ATTORNEY-GENERAL.

or to .hold office, the law is not that the Governor shall remove, but, on account of that status of ineligibility, shall declare the office vacant and that some one shall be put in who is Constitutionally competent. It may be asked, who is to determine the defaulU That is provided for. There is an officer from whose decision on this there can be no appeal:at least, no appeal to any legal remedy. When the Comptroller-General so pronounces, and issues an execution against a tax collector, by judgment of the law, which he is not allowed to deny, he is in default, and is presumed to be a holder of public money unaccounted for, and, by judgment of law, is in a condition of Constitutional disability to continue in office. The Governor has, in fact, no option but to provide the State another officer who is, by the law, competent to serve."
From this opinion of the Court in the case cited it would seem that some tribunal should declare a default on the part of the tax collector before th~ Governor should vacate his commission. In the case of 8tate taxes the action of the ComptrollerGeneral in issuing an execution is suffieient. In cases affecting county taxes similar action on the , . part of the county authorities having charge of such matters would seem to be necessary. But a tax collector, while he cannot contest an execution issued against him by the Comptroller-General for State taxes, can :file an affidavit of illegality to an execution issued against him for county taxes. (Section 415, Political Code.) When such affidavit of illegality is filed it becomes a question for the proper court to determine whether such tax collector is a defaulter. The issuance of such execution is prima

REPOltT OF ATTOltNEY-GENERAL.

31

facie evidence of the default, and unless resisted by an affidavit of illegality, should be accepted as true.
Under these provisions of the law I am of the opinion that if J. W. Rushing, T. C., is due the county of Houston any taxes' the county authorities having such matters in charge should cite him to appear before them, as provided in Section 418 of the Political Code, and upon his failure to make proper showing, should suspend him as provided by Section 419 of the Political Code; or, said county authorities have the power under the Acts of the General Assembly of 1901, page 57, to employ competent accountants to examine the books, vouchers, and papers of the tax collector, and if it is found that he has' failed to pay over any county taxes, then they would be authorized to issue an execution against bim for such unpaid taxes. If such execution was not resisted by an affidavit of illegality on the part of the tax collector, then the Governor would be authorized to vacate his commission under Section 930, above referred to. If the tax collector files an affidavit of illegality denying that he owed any taxes, then it would seem proper for the Governor to await the action of the courts on the issue thus raised.
I beg to return herein the letter of Mr. C. F. Hemingway.
Yours very truly, H. A. HALL,
Attorney-General.

32

REPORT OF ATTORNEY-GENERAL.

August 19th, 1910. GovERNOR Jos. M. BRowN,
State Capitol. Dear Sir:-
The letter of Alex J. Field, Private Secretary, dated August 17th, 1910, addressed to you concerning one Sidney R. Johnson, has been duly considered.
Under the law of Georgia, resident citizens of this State who may be lunatics, idiots, paralytics or demented inebriates, are admitted to the State Sanitarium under the conditions prescribed by our statute. A resident citizen is one who lives in this State and recognizes it as his home. He may not have been in the State long enough to have acquired the right of the elective franchise, or to hold office, but from the time he moves into the State for the bona fide purpose of making it his home he becomes a citizen and falls within the class which are entitled to the privileges of the State Sanitarium under the conditions named in our statute.
I am not familiar with the laws of the <State of North Carolina, but if the statutes of that State are similar to those of Georgia, and if it should appear that Sidney R. Johnson removed to the State of North Carolina, with the bona fide intent of making said State his home; then he became a resident citizen of that State and would be entitled to the privileges of the asylum established in said State under the rules and regulations prescribed hy their statute.
The question as to whether Sidney R. Johnson intended to make the State of North Carolina his home is one of fact and not a question of law. If

REPORT OF ATTORNEY-GENERAL.

33

he never intended to make the State of North Carolina his home he is still a citizen of Georgia and is entitled to the privileges of our State institutions under the rules and regulations prescribed by our statute.
Trusting this information will be of service to you, I beg to remain, Yours very truly,
H. A. HALL, Attorney-General.

October 18th, 1910. GovERNOR J os. M. BRowN,
State Capitol. Dear Sir:-
Your letter of the 17th inst. enclosing a letter from Jno. T. Brantley, President of the Board of T,rustees of the Georgia State Sanitarium, duly received.
Replying thereto I beg to advise that there is no law in this State that would authorize the Board of Trustees of the State Sanitarium to retire from office Dr. J. M. Whitaker, or any other employee of the State ganitarium, with a pension, to be paid out of funds of said Institution.
Yours very truly, H. A.lliLL,
Attorney-General.

October 26th, 1910. GovERNOR Jos. M. BRowN,
State Capitol. Dear Sir:-
1 am in receipt of your letter of the 19th inst. en-
closing a letter from Jas. F. Lynch i:n which he
states that on the first day of January, 1910, he paid

34

REPORT OF ATTORNEY-GENERAL.

as a wholesale beer dealer a license of $2,000.00 under the impression that the law required all wholesale dealers to pay $1,000.00 license tax for each brand of beer handled by them; that this license was paid by him voluntarily and without suggestion from the Ordinary; that he has since learned wholesale dealers were only liable for one license of $1,000.00, notwithstanding they handled more than one brand of beer, according to an opinion given by Attorney-General Hart. In view of this situation Mr. Lynch inquires if it would not be lawful to relieve him of the sum of $600.00 due by him as retai\ license for the remaining months of the pres'ent year.
I am of the opinion that it would not 'be lawful to relieve Mr. Lynch of the amount due for retail license on account of the fact that he had paid double license as a wholesale dealer, (conceding that the $2,000.00 so paid as a wholesale dealer was double license).
If he has paid double license the proper course for him to pursue to . recover such excess would be through an Act of the General Assembly.
Yours very truly, H. A. HALL,
Attorney-General.

April 21st, 1911. GovERNOR Jos. M. BRowN,
State Capitol. Dear Sir:-
The petition of certain citizens residing in the 1127th District G. M. of Coffee county, said State,
known as Wooten District, requesting you to remove

REPORT OF ATTORNEY-GENERAL.

35

C. J . .Meadowes from the office of Justice of the

Peace of said District on the ground that he has been

found guilty in the courts of said county of the

offense of selling whiskey, referred to me, has been

duly considered.

The office of Justice of the Peace is one created by

the Constitution of this State, and it is provided in

said instrument, Article 6, Section 7, Paragraph 3,

that they "shall be elected by the legal voters in their

respective districts and shall be commissioned by

the Governor, and shall be removable on conviction

for malpractice in office.'' Our law further declares

in Section 264 of the Code of 1911, as one of the

methods by which vacancies are created, to-wit: "by

decision of a competent tribunal declaring the office

vacant." It is further provided in Section 258, sub-

division 3, that ''any person convicted and sen-

tenced finally for any felony, under the laws of

this or any other State, involving moral turpi-

tude, the offense being also a felony in this, unless

restored by a pardon from the Executive, under

the great seal of the State, to all the rights of

citizenship, is deemed and held ineligible to hold

any civil office in this State.'' Sub-section 4

of by

Section 264 declares that '' voluntary act or misfortune

ionfc

apacity results the incumbent,

whereby he is placed in either of the conditions spec-

ified of ineligibility to office, which shall operate

from the time the fact is ascertained and declared

by the proper tribunal." The Justice of the Peace

in the present instance has never been convicted of

a crime involving moral turpitude, but only of a mis-

demeanor, and if the offense for which he has been

convicted is one falling under the definition of "mal-

36

REPORT OF ATTORNEY-GENERAL.

practice in office,'' then it would be necessary for him to be indicted and tried for malpractice in the manner provided under our law.
I am of the opinion, therefore, that as the case now stands, the said Justice of the Peace is not subject to be removed. The language of the Constitution being, "they shall he removable on conviction for malpractice in office,'' until they are convicted in the manner provided for by law, I do not think such officer is subject to be removed.
The question of the Governor's authority to remove a Justice of the Peace under any circumstances it is unnecessary to decide under the facts of the case as now presented.
Yours very truly, H. A. HALL,
Attorney-General.

May 26th, 1911. RoN. \VM. A. vVRIGHT,
Comptroller-General, State Capitol.
Dear Sir:The letters of S. P. Smith, Tax Collector of Tat-
nail eounty, and Mann & Milner, attorneys of Albany, have been read and duly considered. I gather from these letters that Mr. T. P. Buntin, who is described as on indigent Confederate veteran, holding a certificate of this fact from the Ordinary of Thomas ,county, and also a similar certificate from tlhe Ordinary of Dougherty county, has in his employ Walton and Eddie Whiddon, who are engaged in peddling medicine in the county of Tatnall, and that the Tax Collector of Tattnall county has issued

REPORT OF ATTORNEY-GENERAL.

37

fi.. fas. against said Walton and Eddie Whiddon for the State tax fixed by the general tax act against persons engaged in that business, which executions .have been levied on two h:orses found in the possession of the said Walton and Eddie Whiddon. The q"Q:estion presented is whether Walton and Eddie Whiddon are liable for this tax, inasmuch as they are the employees of Buntin, who, by reason of being an indigent Confederate veteran, is exempt under the Jaw from the payment of the tax assessed against peddlers. . It does not appear how Buntin procured his' certificate from the Ordinaries above named as an indigent Confederate soldier. If he owns the busi.ness and is able to employ at fixed salaries other .people to work for him, it would seem that he could not be classed as an indigent Confederate soldier. It might be well for you to have the Ordinaries of Thomas county and Dougherty county investigate the facts and see if Buntin is really an indigent Confederate soldier. It might be that third parties are furnishing the money and operating through him for the purpose of evading the State tax.
But aside from this view of the case, I am of the opinion that Walton and Eddie Whiddon are liable for the tax against peddlers if it should appear that they are engaged in the business of peddling patent medicines. The case of Hartfield vs. The City of Columbus is not in point. In that cas'e it appears tlhat Hartfield and another perslon named Sa;lter were separately convicted in the Recorders Court in the city of Columbus of the offense of doing business without a license. T'he facts are substantially as follows: J. R. Christian and William A. Adams

38

REPORT OF ATTORNEY-GENERAL.

were indigent Confederate soldiers and each of them had received from the Ordinary of Muscogee county a certificate authorizing him to conduct business without any license. Christian was carrying on the business of draying, in the conduct of which he employed Hartfield as a driver. Adams was the owner of a wood yard and carried on the business of retailing wood, and Salter was employed as his driver to deliver the wood when sold. The Court held under these facts that neither Hartfield nor Salter, the employees of the two Confederate soldiers named, were liable for the business tax provided for under the ordinance of said city, hecause they were simply the employees and agents of the Confederate soldiers who were authorized to carry on the said businesses without the payment of the license prescribed by the city ordinance. The Court further held that an indigent Confederate soldier holding such a certificate from an Ordinary might carry on as many lines of business as he is able to, carry on in his own name and upon his own account, and that the certificate did not limit him to one particular business. The decision did not go to the extent of holding that either of the Confederate soldiers named therein could under the circumstances have established a business in another county, or in another city, over which they could not give personal supervision. But conceding that they could have done this, there is a clear distinction between that case and the one under review. The businesses dealt with in the Hartfield case were such as could be carried on by proxy, through agents and employees. The license tax prescribed by the city ordinance was on the particulaT business, and if the owner of the

REPORT OF ATTORNEY-GENERAL.

39

business was exempt the exemption extended to the instrumentalities and agents employed by him in carrying on the business. In the case under consideration the tax is not against the business of selling medicine, but it is a tax against the person who proposes to peddle medicine. In its nature it is similar to the tax against the lawyer, or the doctor, or the dentist, or the auctioneer. These taxes are PERSONAL; they are fixed against the persons who propose to engage in the respective callings named. If Mr. A. should pay the tax required of an attorney, he could not under the cloak of having procured such a license employ other attorneys to practice law for him without said employees being liable for the State tax.
A certifi-cate exempting him from this tax places him in no better position than if he pays the ta~ assessed against peddlers. Could Mr. Buntin employ agents to peddle for him if he had paid the tax assessed against peddlers~ If he could not, and this would seem clear, then his exemption cannot extend further than the law would allow had he paid the tax. PEDDLING is a business which a man cannot do by PROXY. T)le tax is not against the business, but the man who peddles. In the case of Howard & Soule vs. David H. Reid, et a1., 51 Ga. 328, Mr. Justice Trippe, speaking for the Supreme Court, said, "The person to whom the license to peddle is required to be granted, is he who travels and vends the goods and wares, and it is against such person that the process is to be issued, under 536, Code, when he peddles without license.'' In the case of tl,he Wrought Iron Range Co., et al. vs. Johnson, 84 Ga. 754, Chief Justice Bleckley, speaking for the

40

REPORT OF ATTORNEY-GENERAL.

Court, said, "Only the person who itinerates for trading purposes is a peddler. His employer, though owning the goods, team and vehicle, is not required . to obtain a license, nor subject to any penalty of forfeiture for failing to do so." In the opinion it is further stated, ''This question was decided in Howard vs. Reid, 51 Ga. 428. In that oos'e it was held that the person to whom the license to peddle is to be granted is he who travels and vends the goods, and tihat the process issued under ~ 536 of the Code against others on the ground that they, by their agent, peddled, etc., without a license, is upon its face illegal and void. That case governs' this in so far as the non-resident corporation is concerned. .A corporation cannot be a peddler or obtain license to peddle, under the laws of this State. No one can obtain such license who cannot be sworn, for every peddler has to take an oath. The itinerant trader is the person who actually travels or passes fror.ii place to pla,ce for the purpos'e of trading by sample or otherwise.''
The principle decided in these two cases is to the effect that the man who actually engages in pedfHing is the one who owes the license tax. It doe~ not matter that he is the agent of some one else, and that
is it another's business that he is carrying on. lf
Buntin was not a Oonfederate soldier and had not paid the license tax of a peddler, but owned the business, and Walton and Eddie Whidddn were his agents and employees, the tax prescribed by our law could not be assessed against Buntin, but the two "Vihiddoils would owe it. _ This being true, it is clear that the exemption from taxation enjoyed by Buntin

REPORT OF ATTORNEY-GENERAL.

41

tyo:u}d not extend to the Whiddons, engaged as they are in the actual busines's of peddling.
Trusting this information will be of servi~e to
you, I beg to remain, . Yours very truly, H. A. HALL, Attorney-General .

. December 13th, 1910. HoN. WM. A. WRIGHT,
Comptroller-General, State Capitol.
Dear Sir:Replying to the letter addressed to you by Mr.
A. F. Truett, Clerk of the Superior Court of Harris county, I beg to say that the commissions allowed by iaw to county treasurers are calculated upon their annual receipts and disbursements, each year being a separate basis of calculation. In the case of Burks vs. Commissioners of Dougherty Co., 99 Ga. 101, the Supreme Court of this State held: "The commissions allowed to county treasurers under 3703 of the Code (of 1882), viz., two and one-half per cent. on all sums received and paid out up. to $10,000, and one and one-quarter per cent. on all sums in excess of that amount, are to be computed upon their annual re'ceipts and disbursements." .
So ,that in the case under consideration the commissions to which the present treasurer of Harris county would be entitled must be calculated upon the ~eceipts and disbursements for the year 1910, as distinct from the preceding year, in which the former
treasurer oollecred ~1!4 disl?lJ.r~~q tll~ {lQ~ty- f~ds,

42

REPORT OF ATTORNEY-GENERAL.

Trusting this information will be of service to you, I beg to remain,
Yours very truly, H. A. HALL, Attorney-General.

October 7th, 1910. PR6F. M. L. BRITTAIN,
State School Commissioner, State Capitol.
Dear Sir:I beg to acknowledge receipt of the letter of Mr.
J. W. McWhorter, in which he propounds this question: ''Has a local tax district, operating under the McMichael law, the right to issue bonds for the pur-
pose of building a school house T''
Replying thereto I beg to say there is no law permitting a local tax district to issue bonds.
Yours very truly, H. A. HALL, Attorney-General
July 21st, 1910. . PROF. M. L. BRITTAIN'
State School Commissioner, Atlanta, Ga.
Dear Sir:-
a T.o your inquiry as to whether a citizen of given
county who has failed to register is thereby rendered ineligible to hold the office of County School Commis:siorH~r, I beg to say:
'I'he Constitution of this State provides in 5929
thafali "county officers must be bona fide residents ot. the:councy:two years; and qualified voters. In ecin-

REPORT O:F ATTORNEY-GENERAL.

43

formity with this Constitutional provision the Legislature passed an Act embodied in Civil Code, 223 (7) which substantially conforms to the terms of the Constitution above referred to. In 1900 the Legislature amended 223 (7) and added at the end of said paragraph the words "entitled to vote." This amendment contained in the Acts of 1900 might have confused the question and rendered it doubtful if the . very words which were added by the said amendment had not been construed by our Supreme Court.
In the case of The Mayor and Council of Madison vs. Wade, 88 Ga. 699, the Supreme Court of this State declares: "Registration adds no qualification to voters, but only serves to identify them as persons qualified to vote.'' So that it is clear that a person may be a qualified voter and though not registered be eligible to hold a county office.
Likewise in the case of McMahon et al. vs. The Mayor, etc., of Savannah, 66 Ga. 224, the Court used the following language: ''The new requirement of a registration has been held not to be the addition of a qualification to an elector.'' Citing authorities: ''It is but a means of carrying out the registration law and is strictly in unison with its purposes, which are to provide for the proper designation and ascertainment of a voter in municipal elections. While it may not be, and is not, in the province of the Legisla,ture to prescribe a new qualification for an elector, it certainly is within the scope of their authority to regulate the mode and manner of conducting elections.''
In the case of Davison vs. City Council of Dawson, 90 Ga. 817, the Supreme Court of this State declares: '':The word 'entitled' used in the phrase 'entitled to

44

REPORT OF ATTORNEY-GENERAL.

vote for members of the General Assembly,' should be construed as meaning 'qualified,' and registration adds no qualification to voters, but only serves to identify them as persons qualified to vote.''
In view of the interpretation which our Supreme Oourt has placed on the words "entitled to vote"construing them to mean ''qualified to vote''-I am of the opinion that a citizen who is otherwise qualified to vote would not be rendered ineligible to hold a county office because of his failure to register.
Yours very truly, H. A. HALL, Attorne,y-General. .

HoN. M. L. BRITTAIN,

November lOth, 1910..

State School Commissioner,

State Capitol.

Dear Sir:-

y ou ask an opinion on the following questions:

1.1-,irst. Where an examination was duly held un-

der the provisions of the Act of the General Assem-

bly approved August 16th, 1909, (Acts 1909, p. 154),

and an applicant who took said examination and

failed to make the required eighty-five per cent., was

nevertheless elected by the people of a given county

as County School Commissioner, is such person en-

titled to be commissioned as County School Com-

missioner of such county?

Second. Is an applicant who made the required

eighty-five per cent. in the examination referred. to;

but who in the election received a minority vote, en-

titled to be commissioned as County School Cominis-

REPORT OF ATTORNEY-GENERAL.

45

sioner because of the ineligibility of the person receiving a majority vote 7
Third. If a negative answer is given in the foregoing two questions, then what is to be done in the premises?
Answering your questions seriatim:
FIRST.
The office of County School Commissioner is properly classified under our law as a public office. In the absence of prescribed limitations the right to hold public office is an implied attribute of citizenship, and is presumed to be co-extensive with the right of suffrage. However, it is entirely competent :for the people, in framing their governments, to declare what shall be the qualifications which shall entitle one to hold and exercise a public office, and irJ many of the Constitutions this has been done with more or less certainty and precision. Constitutional provisions, which are exclusive in their nature, are of course supreme, and it is not within the power of Legislatures to supersede, evade or alter them.
When, however, the Constitution does not prescribe the qualifications, it is the province and right of the Legislature to declare upon what terms, and . snbject to what conditions, the right shall be conferred.
So, there are certain offices which can be properly filled only by persons possessing peculiar fitness, or professional attainments, and it is common in the laws creating the office to require that the incumbent shall possess such qualifications'. >Statutes requiring an examination intended to ascertain the fitness of one to hold and exercise a certain office, have peen. held valid.

4ti

REPORT OF ATTORNEY-GENERAL.

rrhe office of County School Commissioner not being a Constitutional office, and there being no Constitutional provision relating to the same, it was within the power of the Legislature to fix qualifications for holding this office. This the Legislature has done. In the Act of the General Assembly approved August 16th, 1909, (Acts 1909, p. 154), it is provided in section 2 ''that the examination now required by section 1366 of volume one of the Code of 1895, be held at least ninety days before the day of election, and all candidates for such office shall stand said examination, and those who fail to make the per cent. hereinafter set out shall, by the board of education, be declared ineligible to hold said office of ( ounty Sehool Commissioner.'' Again, in section 3, it is provided "that all applicants standing said examination shall be required to make eighty-five per cent. in said examination before they shall be declared eligible to hold the office of County School Commissioner by said board of education."
I am aware that by weight of authority in this country a distinction has been made between the ineligibility which relates to the election to, and that which relates to the holding' of, an office. ,But in every case where this' distinction has been made it was predicated upon a disqualification that was removable at the will of the person, or that ceased to exist 'by the happening of a necessary incident between the da:te of election and the time fixed for the assumption of the duties of the office. A familiar illustration is found in the case of an alien or a minor. Where a statute provided that an alien was ineligible to hold a particular office, his election to that office while an alien was' not invalid where prior

REPORT OF ATTORNEY-GENERAL.

47

to the assumption of the duties of the office he qualified himself by taking the oath of allegiance and becoming a citizen. Likewise, where a statute provides that no person under twenty-one years of age is eligible to hold a particular office, the election of a minor is not invalid where he reaches his majority before the date fixed for the assumption of the duties of the office.
In the case of a County School Commissioner, the statute fixes as a disqualification the failure to make a certain per cent. in an examination to be held prior
I
to the election, and there is no legal way provided whereby this disqualification can be removed between the date of the election and the time fixed for the assumption of the duties of tJhe office. The fact that the statute in terms uses the language "ineligible to hold" the office of County School Commissioner, does not bring it within the class of cases above referred to. There the disqualification was removable by the voluntary act of the party, or ceased to exist by the lapse of time. Here the disqualification is such that it cannot be removed by any method provided by law, and therefore in legal contemplation continues for the period of time covered by the term of office for which the election is held. The statute p:rovides that an examination shall be held to determine the qualification of each applicant who desires to contest in the election for the office of County School Commissioner. This examination is fixed prior to the election. There is. no provision for an examination after the election. The purpose of the Act was to make sure that the persQJ} elected should 'be one possessing the qualifications provided for by the Act. If it were other-

48

REPORT OF ATTORNEY-GENERAL.

wise the person elected might fail to make .the. required average and a multiplicity of elections w~:mld result, or the plan to insure the proficiency 9( the officer, sought by the Act, would be rendered .rwga. tory. This' being true, ineligibility to hold the office of County School Commissioner is equivalent to
ineligibility to election to that office.
I am of opinion that a person who failed to .make the per cent. required by the statute is ineligible to be elected to the office of County School Commissioner and is therefore not entitled to be commissioned as such officer, though receiving a majority of the votes cast for such office in the county. This, of course, is predicated upon the assumption that the person failed to make the per cent. required, the legal presumption being that the one receiving a majority of the votes cast in an election is qualified.
SECOND.

Under the repeated rulings of our Supreme Court the doctrine is well settled in this State that .,~the
effect, where a person who is ineligible to hoid an office receives a majority of the votes cast in an elec-
tion, is not to give tlhe office to the qualified person having the next highest number of votes, but to invalidate the election.''
The State ex rel. Hardwick vs. Swearingen, 12 Ga. 23;
Crovatt vs. Mayson, 101 Ga. 246; Dobbs vs. ~Mayor of Buford, 128 Ga. 483.

THIRD.
As a result of the principle announced above it is .cleiir there has been no valid election for Oo~ty

REPORT OF ATTORNEY-GENERAL.

49

School Commissioner in a county where a person ineligible to hold this office receives a majority of the votes cast for candidates for that particular office. ''In such a case a new election must be held.'' Dobbs vs. Mayor of Buford, 128 Ga. 483.
Yours very truly,
H. A. HALL,
Attorney-General.

August 15, 1910'. PRoF. S. W. McCALLIE,
State Geologist, State Capitol.
Dear Sir:Your letter of the lOth inst., in which you state
that a special appropriation was made to your department by the General Assembly to be used for printing purposes, and in which you inquire if in all cases the printing of your department must be awarded to the State Printer, duly received.
As I understand. your question it is this: Can a. Department of the State Government, to which has been made a specific appropriation for printing purposes, make a contract for any of its printing and pay for the same out of such specific fund independent of the Commissioners of Public Printing; or must such Department in all cases make requisition upon the Commissioners of Public Printing for all printing needed~
The Constitution of this State, Art. 7, Sec. 17, Par. 1, (Code, 5905) prov~des: "The office of State Printer shall cease with the expiration of the term of the present incumbent, and the General Assembly
s:Sall provide1 by law, for letting the public printinir

50

REPORT OF ATTORNEY-GENERAL.

to the lowest responsible bidder, or bidders, who shall give adequate and satisfactory security for the faithful performance thereof. No member of the General Assembly or other public officer shall be interested, either directly or indirectly, in any such contract.''
Pursuant to this provision of tJhe Constitution the General Assembly passed an Act (Acts 1879, page 37,) creating the Commissioners of Public Printing, ditecting how the State printing must be done, and providing the stipulations and specifications under and in accordance with which the same shall be done.
The Act of the General Assembly, approved August 13th, 1909, (Acts 1909, p. 112), amended in certain particulars the above Act of 1879. Section 1 was amended by increasing the bond of the successful bidder from $25,000 to $50,000. Section 3 was amended by providing for the submission of sealed proposals to do all the public printing for the State, including all the printed matter used by the various departments of State or any branches thereof, with the proviso that it should appear that such successful bidder has the capacity and ability to perform such contract in such a way as will promote the best interests of the State and secure the cheapest and most competent and efficient performance of said contract. It was further amended by add-
ing a new section, to be known as section 7, which
prohibited the transfer or assignment of said contract by said successful bidder; also by adding a section, to be known as section 8, which provides, "when the public printing is awarded as herein
provided, the various Departments of State, and all

REPORT OF ATTORNEY-GENERAL.

51

branches thereof, shall through their proper offieerl'l make requisition upon the Commissioners of Public Printing for all printed matter needed in their various Departments, and upon receipt of such requisiltion the Commis~ionerS' of Public Printing s\hall supply said Departments with such printed matter as they may need, from time to time.'' In all respects, not in conflict with the amendments above set out, the Act of 1879 is still of force and effect.
It will be noted that the class and character of printed matter-the stipulations and specifications . set up and fully described in said Act of 1879remain unchanged and are not affected by the amendments of 1909.
That such was the construction placed upon the printing Act of 1909 may be gathered from the faet that neither in the advertisement published by the commissioners of Public Printing, inviting bids, nor in the bids submitted and accepted, was there any reference to any class or character of printing except that which is included in the stipulations and specifications set up in the Act of 1879 and embodied in 1073 of the Political Code.
It must be concluded, therefore, that the only public printing which is covered by the contract made by the Commissioners of Public Printing with the successful bidder, is that which falls within the stipulations and specifications set up in 1073.
The policy of the law is that the State. printing should be let to the lowest and best bidder. If the . rontract made by tihe Commissioners of Public Printing with the successful bidder did not cover the class of special printing needed in your Depart-

52

REPORT OF ATTORNEY-GENERAL.

ment, it is clear that the same has not been let to the lowest and best bidder.
The Act of the General Assembly, approved Au~ gust 16, 1909, (Acts 1909, p. 8) appropriates $25,000 to the general printing fund. This fund is only available to the Commissioners of Public Printing t~ meet the expenses of the printing done under the contract. By the same general appropriation Act th& sum of $2,500.00 is appropriated to the Geological Department as a special printing fund to be used by said Department. This fund cannot be drawn on by the Commissioners of Public Printing, and would s'eem to be a useless appropriation unless available for use by your Department for the special printing incident thereto.
While the Act of 1909 seems broad, and says ''all printing,'' the same must be construed with reference to 1073 of the Political Code, and means all printed matter included in the stipulations and specifications therein set out. Under section 8 of said Act of 1909, whenever any Department of "State may need any of the printed matter covered by 1073, such Department must make requisition upon the Commissioners of Public Printing for the same and it shall be supplied by said Commissioners. This necessarily implies that the same is of the class of printing covered by the contract, and which is paid for by the Commissioners of Public Printing out of the general printing fund.
When it is remembered that ,certain printing, such as lithographing, illustrated map printing, is needed in your Department, and no reference to which is made in the contract, nor covered by the specifidations in the bids submitted, it is clear that this spe-

REPORT OF ATTORNEY-GENERAL.

53

cial work was not contemplated by the parties to the contract made for the State printing, and is not such printed matter for which your Department can make requisition on the Commissioners of Public Printing.
I am of the opinion that you would be authorized .to have this class of printing done wherever you can secure the cheapest, most competent and efficient work, and pay for the same out of the specific fund appropriated to your Department.
Yours very truly, H. A. HALL,
Attorney-General.
---------
January 27, 1911. HoN. T. G. HunsoN,
Commis'Sioner of Agriculture, State Capitol.
Dear Sir:In regard to the matter of the Cherokee Fertilizer
Co. and the Rome Oil & Fertilizer Co., relative to the registration of brands, I 'beg to advise:
In my opinion the provision of Section 7 of the law relating to the analysis, inspection and registration of fertilizers, to-wit: ''A brand name and, or, trade-mark registered by one manufacturer shall not be entitled to registration by another; and the manufacturer having first registered and used the said brand name and, or, trade-mark, shall be entitled to it even- should said brand name and, or, trade-mirk not be offered for current registration at the time," was designed to prevent confusion in your office. The law did not contemplate that your J)epartment should assume to exercise the functions
of the courts in :determining the relative rights of

54

REPORT OF ATTORNEY-GENERAL.

parties to trade-marks or trade names. Wherever the brand name sought to be registered is dissimilar from any other brand name already registered to such an extent as not to create confusion in your Department, then I think it advisable for you to register the same, leaving to the parties their redress in the courts as to whether there has been an infringement of a trade-mark or any act amounting to unfair competition in trade. The latter part of section 7 dearly indicates that your Department should not judicially determine the relative rights of different companies to use trade names or trademarks. This provision is as follows: "Nothing in this Section shall be construed as debarring the right of any manufacturer to establish his ownership in, and prior right of registration of, any brand name and, or, trade-mark, whether said brand name and, or, trade-mark, had been p~eviously registered or not." So, that, without prejudice to either party, if the brand name offered for registration is suffieien tly unlike other registered brand names to avoid confusion in your office, I would register it and leave the parties to assert their rights in a court of competent jurisdidion.
Yours very truly, H. A. HALL,
Attorney-General.

s. w. JUDGE

HARRIS,

September 1st, 1910.

State Oil Inspector,

Carrollton, Ga.

Dear Sir:-

y our inquiry as to the use of gasoline for illumi-

REPORT OF ATTORNEY-GENERAL.

55

nating purposes in accordance with what is known as the "Little Giant System," duly received.
As I understand this system it consists in placing gasoline in a galvanized iron tank, which tank it:! connected to a pump by means of which air is forced into the tank, causing a pressure of some forty-five or fifty pounds to the square inch, thus generating a gas which is conveyed through pipes into stores and dwellings and is lighted by means of an ordinary metal jet.
Under the Act of the General Assembly approved December 20th, 1899, it is provided that naphtha and illuminating products of petroleum which will not stand the flash test required by this Section may be used for illuminating or heating purposes in the following cases: 1. ''In street lamps and open air receptacle~. :q; 1rt from any buildings, factory, or inhabited houses in which the vapor is burned.'' 2. "In dwellings, factories or other places of business, when vaporized in secure tanks or metal generators, made for that purpose, in which the vapor so generated is used for lighting or heating.''
It would seem that the "Little Giant System" falls under exception 2 above set out, and by the terms of the Act it is legal to US'e gasoline in this manner.
I am therefore of the opinion that naphtha, gasoline, and other illuminating products of petroleum, which are used as described in the "Little Giant System,'' are not subject to be inspected as provided in said Act, and need not come up to the flash test provided in Sedion 2 thereof.
Yours very truly, "H. A. HALL,
Attorney-General.

56

REPORT OF ATTORNEY-GENERAL.

September 1st, 1910, JuDGE S. W. HARRis,
State Oil Inspector, Carrollton, Ga.
Dear Sir:Your inquiry as to whether kerosene oil ]+eld in
its possession in the State by the Georgia Southern & Florida R. R. for use in lighting up its depo,ts, cars, lanterns, restaurants, etc., is subject to be inspected under the terms of the Act of the General Assembly approved December 20th, 1899, duly received.
Section 2 of said Act provides that no person shall manufacture, or have in his possession, or sell, or give away for illuminating or heating purpose!?, in lamps or stoves within the State, any oil or bur~ing fluid, wholly or partly composed of naphth~, coaloil, petroleum or products thereof, or other substance or material emitting an inflammable vapor which will flash at a temperature 'below 100 degrees Fahrenheit, when tested, etc.
When it is remembered that one of the chief purposes underlying the passage of the above. 4'ct was to insure the safety of the general public again~t the danger arising from the use of inferior illumin~;~.ting oils falling below the prescribed test, it is manifest that to limit the terms of the Act to oils held in this State for sale by wholesale and retail dealers, would he to give it a too restricted meaning and one not in harmony with the real purpose of the law. Otherwise large corporations dealing intimately with the public could go outside the State to purchase for their own use within thi.s State illuminating oils fal'
bel.leath the standard required by Q'Uf l~w, and thus-

REPORT OF ATTORNEY-GENERAL.

57

put in serious hazard the life, health and limbs of our citizens.
I am, therefore, of the opinion that kerosene oil held in this State in possession of a public service corporation for use in lighting its' depots, cars, lanterns, restaurants, etc., is subject to the provisions of the above recited Ad.
Yours very truly, H. A. HALL,
Attorney-General.

w. CAPT.

H. HARRISON,

September 23rd, 1910.

State Capitol.

Dear Sir:-

y our letter of the 22nd inst. duly received. You

inquire, First: Is the dog t,ax legal~ Second: If thu

ow'rier of the dog refuses to pay the tax can such

owner register and vote~

Replying thereto I beg to say, under ~ 5383 of the

Code, being Article 7, Section 2, Paragraph 1, of the

Constitution of this State, it is provided, "The Gen-

eral As'sembly may, however, impose a tax upon

such domestic animals which from their nature and

habits are destructive of other property." Under

this provision of our Constitution I think the tax

on dogs provided for in the general Tax Act is

legal.

In answer to your second inquiry, I beg to say

that 5737 of the Code, being Article 2, Section 1,

Paragraph 2, of the Constitution, provides: ''Every

male citizen of the United States, (except as

hereinafter prov"ided,) twenty-one years of age,

who shall have resided in this State one year next

58

REPORT OF ATTORNEY-GENERAL.

preceding the election, and shall have resided six months in the county in which he offers to vote, and shall have paid all taxes which may hereafter be required of him, and which he may have had an opportunity of paying agreeably to law, except for the year of the election, shall be deemed an elector.'' Under this provision of our law a person who fails to pay ANY tax required of him under the conditions above set out, t]Jereby becomes ineligible to register and vote in the elections' provided for under our law. I beg to remain,
Yours very truly, H. A. HALL,
Attorney-General.

Novemoer 2nd, 1910.. HoN. N. E. HARRis,
President Board of r.rrustees, Georgia School of Technology, Macon, Ga.
Dear Sir:y ou request an official opinion upon the following
questions: First. Can a non-resident student over twenty-one years of age claim his domicile in any county of this State, so as to avoid the payment of the tuition fees fixed by law for non-resident students in the State School of TechnologyT Second. Can a non-resident parent transfer the guardians'hip of a minor child to a eitizen of this State so as to entitle said minor to the benefit of the tuition fees fixed by law for resident minors T
Under the Act creating the 8chool of Technology, as amended, the tuition for students from other 8tates and countries, coming to the School, shall not

REPORT OF ATTORNEY-GENERAL.

59

be less than $100.00 per annum, to be collected at the beginning of each half year. The tuition of resident students, exclusive of the free scholarships allotted to each county, shall be $25.00 per l}nnum. To obtain advantage of the low rate of tuition assessed against resident students, I am informed, a practice has arisen of non-resident students ove~; twenty-one years of age claiming domicile in some eounty in this State, and, in case of minors, of nonresident parents transferring the guardianship of such minor to some citizen of this State.
As respects the first class : A person sui juris has the legal right to change his domicile as often as he pleases. Domicile, as defined by law, is " & place where a person lives or has his home; i. e., where one has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning. The habitation fixed in any place, without any present intention of removing therefrom.''
a If person of full age removes to this State with
the bona fide intention of making his home here, and with no present purpose of removing hence, then this would be his legal domicile, and in such case he would be entitled to such benefits as are accorded citizens of this State. But should a citizen of another State come into this State for the purpose of availing himself of the advantages offered by the State School of Technology, and in order to avoid the payment of the tuition assessed against non-resident students, claim his domicile in this State with no bona fide intention of making this State his fixed and permanent home, but with the present purpose of returning to the State from which he came as

60

REPORT OF ATTORNEY-GENERAL.

soon as he completes his education, then he would not be entitled to the benefits of the rate of tUi.tion granted to citizens of this State. The question is largely one of ''intention.'' This makes ~m issue of fact. "Intention is manifested by the circumstances connected with each particular case." The Board of Trustees would act as a jury in finding what was the real intent of each applicant, as gathered from all the circumstances connected therewith. It necessarily follows that it might be determined a student had the intention of making his domicile in this State at one time, but did not at another. So, where a student paid non-resident tui- tion fees for the first half year, and at the beginning of the second half year claimed his domicile in this State and was permitted to pay the tuition granted to resident students, it would not follow that he would be entitled to have remitted to him any part of the tuition so paid for the first half year, unless it should be determined that his bona fide domicile was in this State at the date of such first payment.
As to the second class: A parent has the legal right to transfer the control and custody of a minor child to a third party. Under the law of this State the domicile of a minor is that of his parent or guardian. If a non-resident parent should in good faith transfer the control and custody of a minor child to a citizen of this State, who should become the guardian of such minor, then the domicile of such minor would be in this State and he would be entitled to the benefits of the rate of tuition granted to resident students. But should a non-resident parent, for the purpose of avoiding the payment of the tuition

REPORT 01<' ATTORNEY-GENERAL.

61

assessed against non-resident students, transfer to a citizen of this State the control and custody of a minor child, then such minor would not be entitled to the rate of tuition granted to resident s,tudents, but should be required to pay the tuition due by non-residents. As in the first class, so in this, the intention of the party would determine the question. Did the non-resident parent transfer tha control of the minor to a citizen of this State for the purpose of evading the law, or was it in good faith and with no intention of evading the law This presents a question of fact for the board to determine. If they believe from all the circumstances surrounding each particular case that the former condition is true, then the student should be charged the tuition assessed against non-residents; but on tha other hand, if they believe the latter condition to be true, then such student should be assessed the tuition charged against resident students.
If there is any further information which you may desire I will take pleasure in complying with your request.
Yours very truly, H. A. HALL,
Attorney-General.

May 25th, 1911. RoN. A. J. ScoTT,
Adjutant-General, State Capitol.
Dear Sir:1 beg to acknowledge receipt of your request
asking my opinion on the following questions, towit:-

62

REPORT OF ATTORNEY-GENERAL.

'' l. Has a military court, or courts martial, exclusive jurisdiction over militiamen who commit an offense against the civil law while on duty under orders? 2. Does the preferring of charges against a militiaman under such eircup1stances preclude a trial in the civil courts for the same offense~ 3. I,s ,a court martial verdict such a judgment or deci- sion as would authorize a militiaman, under circumstances enumerated above, to successfully plead former jeopardy, should he subsequently be indicted and placed on trial in the civil court for crimes growing out of the same act?"
In answering the above questions I assume that they relate to conditions as they exist in time of peace and not of war, and that the ,courts martial referred to are such as derive their power and authority from the State government and not from the Federal gov~rnment, and that the offender is a soldier in the State service, and not a soldier in the service of the United States.
The first question must be answered in the nega.tive. There are offenses peculiar to the military law over which courts martial would have exclusive jurisdiction, but your question does not include these, but relates to "offenses against the civil law." The Constitution of this State, in Article 1, Section 1,
Paragraph 19, declares ''The civil authority shall oo
superior to the military.'' When a member of the State militia violates a State law, then he is amenable to be tried by the civil courts, and upon application by the civil authorities he should be delivered up to them by the military authorities for that purpose.
This brings me to your second question. In case

REPORT OF ATTORNEY-GENERAL.

63

the civil authorities do not demand the offender the military authorities have the right to try him for any violation of the military laws. Proceedings once instituted in a court martial should not be arrested by demand of the civil authorities, but should proceed to final determination. This assumes, of course, that the offense fall~ within the jurisdiction of the court martial.
Your third question in a measure involves the other two, and presents the real crux of the proposition. In every valid plea of former jeopardy two principles must concur, the authority of the tribunal and the identity of the offense. The authority of the tribunal involves jurisdiction of the offense, and where the trial is instituted in different courts the two tribunals must exert aU their powers under and by authority of the same government. To illustrate: If the offense being tried is not within the jurisdiction of the court, then its judgment could not be plead in bar on a subsequent trial by a court having jurisdiction of the offense; nor in case where the two tribunals derive their powers from different sovereigns, as, for instance, a State court may punish the offense of uttering or passing false coins as a cheat and fraud practiced upon its citizens and the Federal court may punish the same act as an offense against the United States. The conviction in the one case could not be plead in bar of a trial in the other. As stated by Mr. Justice Grier, speaking for the Supreme Court of the United States in the case of Moore vs. Illinois, 14 How. p. 13 to 20: "Every 9itizen of the United ~states is also a citizen of a State or Territory. He may be said to owe allegiance to two sovereigns, and may be liable to punish-

64

REPORT OF ATTORNEY-GENERAL.

ment for an infraction of the laws of either. T:,he. same act may be an offense or transgression of the laws of both." This same view was e~pressed by the Attorney-Gene,ral of the United States In Re Steiner, 6th Opinions of the Attorney-General, p. 413 : ''An officer or soldier of the army who does an act criminal, both by the military and the general law, is subject to be tried by the latter in preference to the former under certain conditions and limitations. But his conviction or acquittal by the civil authorities of the offense against the general law, does not discharge him from responsibility for the military offense involved in the same acts.'' Likewise the opinion of the Attorney-General of the United States In Re Howe, 6th Opinions of the Attorney-General, p. 506: ''An officer may be tried by court martial for the milit~ary relation of an. act after having been tried by the civil authorities for the civil relation of the same act." Discussing that principle the Attorney-General of the United States in the Howe case said: ''Assault and battery, and homicide, are violations of the municipal laws of the place where committed, to be tried and punished by the proper tribunal of the State or territory whose peace was broken and laws offended. But the same acts being done by an officer or soldier of the army of the United States, over and above the breach of the local laws, is a breach also of the law of the United States, a violation of the rules and articles for the government of the army of the United States. So, if an officer or soldier of thQ army of the United States shall assault and beat a superior officer while in the execution of his office, a double offense is thereby committed, the one

REPORT OF ATTORNEY-GENimAL.

(j;)

against the local law. of the State wherein the crime of assault, battery and breach of the peace was committed, and punishable by that law with fine and imprisonment; the other against the United State~, in violation of the rules and articles for the govemment of the army, and by that law punishable hy death or such other punishment as shall, according to the nature of the case, be inflicted upon l1im by the sentence of the court martial. In such case, the offender is punishable both as a citizen, subject to the municipal law of the place, and also as a soldier, or officer, subject to the military laws of the United States." The opinions ahove quoted dealt with offenses bearing a dual relation, to the State government on the one hand, and the Federal government on the other.
As above stated, it must also appear that tlH offense is the same. 'rhis does not necessarily mean .that the two charges must be the same in name. Jf the transaction is the same, or if each rests upon the same facts between the same parties, or if the one is necessarily involved in the other, the identity is sufficient to make good the plea.
'rhe Supreme Court of the United States in the <'ase of Grafton vs. T.he United States (20(i U. S., :3:J3,) speaking through Mr. .Justice Harlan, announced the doctrine: "One acquitted hy a military <'Ourt of competent jurisdiction of the crime of homicide as defined hy the Penal Code of the Philippine Islands, article 404, cannot be tried a se<'ond time in the (ivil court of those Islands for the same offense.'' There is no conflict between this case and the Moore case, supra, decided by the Rupreme Court. The Grafton case is bottomed upon the prin-

(jt)

REPORT (}F ATTORNEY-GENERAL.

ciple that in the Philippine Islands both the military court and the civil court exert all their powers under and by authority of the same government, to-' wit: that of the United States.
I am assuming in this discussion that the courts martial referred to in your inquiry are those established by the State of Georgia, hence the principia which might control where the two tribunals derived their powers from different sovereigns does not apply, but the principle which would govern would ba the same as that announced by the court in the Graf- ton case.
'What is the extent of the jurisdiction of the courts martial provided under the 1aw of Georgia 7 Section 1407, volume 2, of the Code of 1911, among other things provides, ''Courts martial and courts of inquiry for the national guard of this State shall be of the same elass and kind as shall from time to time be prescribed by the law of the United States army. A general court martial shall be convened only by the order of the Governor, and the punishing power of such court shall in time of peace extend to dis. honorable discharge from the service of the State, forfeiture of all pay and allowances, and such punit-Jhment as is now or hereafter may be prescribed for misdemeanors by the penal laws of this State. Regimental, garrison, and summary .courts may be convened for the trial of enlisted men by the commanding officer of any post, unassigned battalion or larger unit organization, and the punishing powers of such regimental and garrison courts in time of peace shaH extend to reducton to rank, forfeiture of all pay and allowances, dishonorable discharge from the service of the ~State, and a fine of $30.00,

REPORT OF ATTORNEY-GENERAL.

67

or thirty days confinement in any guard house, jail or prison. The extent of summary court punishments shall be the same as regimental or garrison courts, except that the fine shall not exceed $10.00, or the confinement shall not exceed ten days.'' Section 1410 of volume 2 of the Code of 1911 provides, "When the punishment inflicted by courts martial is, or includes, imprisonment and chain-gang punishment, or either, the person so convicted shall be delivered by the military authorities to the sheriff of the county wherein such conviction was had, together with a copy of the sentence of the court, to be dealt with as if such conviction had been had in the superior court of such eounty."
From these provisions of our law it is clear that the courts martial established under the law of this 8tate have no jurisdiction beyond the grade of offenses ,classed by our law as misdemeanors, and you will also notice that when an offender is convicted by a court martial, and misdemeanor punishment prescribed, it is the duty of the military authorities to deliver such convicted person to the sheriff of the rounty where the conviction was had, and he is to be dealt with as if convicted in the superior court of the county.
So far as offenses above the grade of misdemeanors are concerned I am of the opinion that the courts martial provided for under the law of Georgia in time of peace would have no jurisdiction, but that so far as offenses classed by our law as misdemeanors are concerned, the courts martial establiRhed under our law would have jurisdiction, and a judgment and sentence of such a court would be a bar

(iH

REPORT OF ATTORNEY-GENERAL.

to a conviction in the civil courts of this State for the ;.;arne offense.
'l',rusting this information will be of service to you, I l1eg to remain,
Yours very truly,
H. A. HALL,
Attorney-General.

.\Ill. \\'.A. CALHOUN, r.l'. c.,

October 5th, 1910.

Rockmart, Ga.

Dear Sir:-

your letter of the 29th ult. duly received.

Heplying thereto I beg to say that the registration

of a citizen under sub-division 1 or :2 of Paragraph

-1- of the Constitutional amendment of 1908, does not

relieve him from the duty of registering as a voter

for the biennial State election as provided for by

the general registration law of 1908. 'l''he purpoRe

of the permanent roster, as provided for in Para-

gTaph ;) of said Constitutional amendment, is to

identify those ritizens who have qualified themRelves

undf'r said sub-division 1 or 2 of Paragraph 4- for

the privilege of i'egistering as voters in all electionf.l.

This privilege reases January 1, 1915. .After that

date a citizen would have to possess not only the qual-

ifications prescrihe<l in Paragraphs 2 and :~, hut in

nddition thereto come within one of the claRses pro-

vided for in sub-division 3, 4 or 5 of Paragraph 4.

'l'he scheme of the la\Y was to give ample time to a

certain elnss of our citizens who could qualif~ them-

selves under sub-divisions 1 and 2, but perhaps would

not he ahle to qualify themselves under either sub-

<livision :1, 4 or 5 of said Paragrnph 4. When a C'iti-

HEPORT OF ATTORNEY-GENERAL.

()!:)

zen registers under said sub~division 1 or 2, he is placed upon this permanent roster and thereafter he is in the same condition, provided he possesses the qualifications prescribed in Par.agraphs 2 and 3, as any other qualified voter, hut he occupies no better position so far as the obligation to conform to the general registration law is concerned. As every other qualified voter must biennially register 'in order to vote, so those of our citizens who take advantage of sub-division 1 or 2 and have their names placed on this permanent roster, must register as required by the general registration law in order to exercise the elective franchise.
You will find in 10 of the general registration law a provision covering cases where a voter moves from one district to another, or from one county to another. This Section provides that ''If any person shallchange his r~sidence from one militia district to another, or from one county to another, between the time of paying his taxes and signing the oath in the voter's book and the time of any election in the district or county into 1vhich he removes at which he will be qualified to vote, he shall have the right upon application to tl1e registrars and satisfactory proof before them that he will be qualified to vote at said election, be plared upon the list of registered voters for the district or county into which he has so removed, with the same rights as others registered for said election." Under this provision if a voter rhanges his residence from one district to another, or from one county to another, he should make ap-
plication to the registrars of the district or countv into which he so removes, and upon presenting to them satisfactory proof that he is a duly registerecl

70

REPORT OF ATTORNEY-GENERAL.

and qualified voter, be entitled to have his name

transferred to the list of registered voters of the dis-

trict and county into which he so removes.

.

Trusting this information will be of service to you,

I beg to remain,

Yours very truly,

H. A. HALL,

Attorney-General.

April 14th, 1911. HoN. R. E. DAvrsoN,
Chairman Prison Commission, State Capitol.
Dear Sir:rrhe letter addressed to you by L. E. Heath,
County Attorney of Coffee county, which you referred to me, has been duly considered.
I know of no legal method by which Coffee county could enfol'ce its demands against Glynn county, so as to procure the custody of the prisoner in question. Having been legally convicted in Glynn county by a eourt of competent jurisdiction, and at present being in the custody of the authorities of Glynn county serving out his legal sentence, I am of the opinion that Glynn county would be entitled to keep the prisoner until the expiration of his term of service, when, upon proper application by the authorities of Coffee county, it would be the duty of the officials of Glynn eounty to return said prisoner to the authorities of Coffee county for the purpose of serving out his unfinished sentence in said county.
Yours very truly, H. A. HALL,
Attorney-General.

REPORT OF ATTORNEY-GENF.RAL.

71

NOTE.

The following opinions of J udge J no. C. Hart are included herein because not heretofore published, having been rendered sinee the publieation of his last report.

April 18th, 1910.
HoN. PHILIP CooK, Secretary of State, State Capitol.
Dear Sir:~ I am in receipt of your letter of the 13th inst. en-
closing a letter f:t;om Mr. J. E. Hall, in which he raises the following inquiries:
First. Can an insurance company whose capital stock has been issued at $100.00 par value per share, by eomplying with the provisions of 1844 as amended, change the par value of its stock to $50.00 par value~
Second. Can a new insurance company be incorporated at $50.00 par value per share~
You ask my official opinion thereon. A. First. 2013 of the Civil Code, under the chapter dealing with incorporation of insurance companies, provides "the capital stock of said company shall be divided into shares of one hundred dollars each, and shall not be less than one hundred thousand dollars to each class of insurance to be engaged
I.n . . . . . "
1844 of the same Code provides for amending of charters of corporations "whether incorporated by special Act of the General Assembly or by the Secretary of State under the general law . . . . .''
This Section of the Code was amended by the Aet

7:2

u~~PoRT oF AT'L'ORNEY-GENERAL.

of 18m, page 2G: ''By inserting a provision for changing the face value of each share of stock .... '' In other words, ~ 1844 as now amended authorizes the Secretary of State, by a compliance with its provisions, "to change the face value of each share of its capital stock.''
Giving effect to the plain language of the Leg-islahue, I think the authority is conferred upon you to change the face value of the eapital stock of incorporations doing an insuranee business upon complianre hy the company with the requirements of the Act.
1\. Second. If the Seeretary of State may, by amendment, change the face value of the shares of stock of a corporation ereated by him, or by special Act of the T_.egislature, no valid reason occurs to me \Yhy he could not create it in the first instance with the capital stock of the par value of less than $100.00 per share. I don't perceive why the State is coneerned in the 11ar value of shares of stock, whether it is $100.00 per share par value, or $50.00 per share, pm value, so long HR the other provision is complied \Yith relative to the amount of stock subscribed. In other words, the State is interested to know that immranee companies have sufficient money to do an insurance business, to the end that the public may he protected in their policies; but whether the directorR shall divide the shares of stock into $100 par value or $50.00 par value, the State is not concerned. I think, therefore, you would be authorized in the creation of an insurance company to permit it to issue stock ''at $50.00 per share par value.''
Yours very truly,
JNo. 0. HART, Attorney-General.

REPORT OF ATTORNEY-GENERAL.

73

:May 25th, 1910. RoN. G. R. HuTCHENS,
Chairman Prison Commission, State CapitoL
Dear Sir:I beg to acknowledge your letter of the 12th inst.
in which you ask my official opinion whether the parole law approved September 5th, 1908, contemplates or authorizes the parole of misdemeanor convicts.
I beg to advise I am constrained to hold, by reason of the language employed in the Act, that it does not apply to misdemeanor convicts. The Act in the first Section thereof uses the expression ''shall have full power to establish rules and regulations under which prisoners within the penitentiary may be allowed to go upon parole.'' In 2 of the Act it is further provided: "\\Then said Prison Commission shall, after a full examination into the history of said prisoner before the commission of the crime for which he has been convicted and the present record inade by him since his confinement in the penitentiary," and further in the same Section, "said prisoner under the terms of said parole as fixed by said
Commission, and he shall then be allowed to go with-
out the confines of said penitentiary." Again, in the third Section of the Act relative to the power to rearrest the paroled prisoner, this language is used, ''And to rearrest the body of said prisoner and again return him to the penitentiary under the order of the said Commission." It is further provided by 4 of the Act, ''After said paroled prisoner shall have served at least tzrelt:e months of his parole,'' etc.

74

REPORT OF ATTORNEY-GENERAL.

These several provisions would indicate that the legislative intent was to confine the grant of the parole to persons convided of crime and sentenced to the penitentiary. This is made manifest because under our law misdemeanors are punished by confinement in the chain-gang not exceed}ing twelve months. .Therefore it is idle to have said his parole shall be granted onl~- after he has ''served at least twelve months of his sentence," etc., for when he had served his twelve months, the maximum sentence imposed upon misdemeanor c'onvicts,. he is entitled to his release from the chain-gang.
In the light, therefore, of these expressions and the conditions upon which paroles may be granted, there is no room for doubt that the legislative intent was to apply this law only to crimes denominated as felonies.
I beg to remain, Yours very truly, JNO. C. HART, Attorney-General.

}lay 11th, 1910.
ADJUTANT GENERAL OF GEORGIA,
State Capitol. Dear Sir:-
Replying to your letter requesting that I shall officially advise ''should the defendant before courts martial of the National Guard of Georgia be sworn and cross-examined, or should he simply make a statement, if he desires, as in criminal cases~" I beg to adYise:
The accused should not be required to testify at all, but should be allowed to testify at his own re-

REPORT OF ATTORNEY-GENERAL.

75

quest. See Act of Congress approved March 2, 1901; Paragraph 2 of the Manual for Courts Martial, etc., 1908. If he desires to become a witness and so requests, he should be sworn. ''His failure to make such a request shall not create any presumption against him.'' 20 U. S. Stats., 30.
The foregoing is the regular procedure in the regular army of the United States and by the terms of the Act of 1905 of the General Assembly of this State, Section 32, page 144 of said _._~ds: "The Articles of War governing the army of the United States and the regulations prescribed by the army of th11 United States, as far as such regulations are consistent with this Act .... shall be enforced and regarded as a part of this Act,'' etc.
The Constitution of this State, Paragraph 6 in the Bill of Rights (Code, ~ 5703) provides: "No person shall be compelled to give testimony tending in any manner to criminate himself"; and likewise the Fifth Amendment of the Constitution of the United States, no person ''shall be compelled in any criminal case to be a witness against himself," is not violated by this rule. It is perfectly consistent or the defendant in a court martial proceeding to offer himself as a witness in his own behalf, and still invoke the Constitutional provisions quoted and decline to answer any question which would tend in any manner to criminate him.
In other words, the accused may testify if he wishes to, and if he does he should be sworn, but the right is ever with him on cross-examination to decline to answer a question which would tend to criminate, and of which he is alone the judge. He is competent, but not compellable, and although he offers

76

REPORT OF ATTORNEY-GENERAL.

himself as a witness, he may decline to answer any question where the answer would tend to criminate him.
I beg to remain, Yours very truly, JNo. C. HART, Attorney-General.

March 11th, 1910. HoN. J. PoPE BRowN,
State Treasurer, Capitol.
Dear Sir:I am in receipt of your letter of the 11th inst. in
which you ask my opinion whether the committee appointed to inspect the Georgia School for the Deaf by virtue of a resolution approved August 16, 1909, may be paid out of the appropriation ''appropriating the sum of $5,000 for compensation of the several committeemen of the 'Senate and House of Representatives for 1910. "' In other words, the Legislature of 1909 in the general appropriation bill "for the ordinary expenses of the Executive, Legislative and Judicial Departments of the government . . . . for each of the fiscal years 1910 and 1911," appropriated the sum of $5,000, or so much thereof as may be needed, for compensation of the several committeemen of the Senate and House of Representatives for the ~'ears 1910 and 1911. The Legislature of 1909 appointed its various committees for various purposes, and the fund of $5,000 was exhausted and in fact was insufficient to pay the committeemen, and it wiU require an Act of the Legislature appropriating money to meet the deficiency.

REPORT OF ATTORNEY-GENERAL.

77

Tihe present committee appointed by the same Legislature has rendered its service in 1910, and tha suggestion is it should be paid out of the appropriation made for 1910, which is as yet untouched. The question, therefore, is, is the fund appropriated for 1910 available to pay this committee, acting under the authority of the Legislature of 1909, with the option of performing their duty in 1909 or in 1910, as they may elect 1 The answer to this question depends upon the proper construction of the general appropriation bill referred to.
The argument in favor of paying the present committeemen is that they have rendered the service in 1910, while conceding that the committee of 1909, acting under the same authority, was not entitled to pay, because the appropriation of 1909 was exhausted. In other words, if one of the committees of the Legislature of 1909 rendered service on the 31st day of December it must wait for a deficiency appropriation before it can be paid, while another committee of the same Legislature rendering service on the 1st day of January, 1910, could be promptly paid out of the appropriation for 1910. I cannot perceive either the logic or justice of such position. My interpretation of the appropriation bill referred to is that $5,000 was appropriated as a sum sufficient in the opinion of the Legislature to pay committeemen for services rendered by the committeemen of the Legislatures respectively of 1909 and 1910. In other words, the Legislature has said in its opinion that $5,000 is a sufficient sum to meet the expenses of the committeemen for services rendered for the year 1909, and that a like sum is sufficient to meet the expenses of the committeemen of 1910. The appro-

78

REPORT OF ATTORNEY-GENERAL.

priation is in effect and substantially an appropria-

tion to the respective sessions of the Legislature of

a certain amount and for a certain purpose. To

permit the committeemen of one session to take the

appropriation made to two sessions would violate,

in my opinion, both the letter and spirit of the Act.

An appropriation made to the legislative branch of

the government, contemplating that it shall meet the

expenses incurred by that Legislature, could not

inure to the benefit ,of a preceding Legislature. I

mean to say, when the Legis'lature meets in June it

may confidently rely upon the appropriation of $5,-

000 to meet the expenses of its committeemen, and

it would be no answer for the Treasurer to say, '' l

have paid it out to a committee appointed under the

authority of the Legislature of 1909." The Legis-

lature having exhausted its appropriation for its

committeemen made for the session of 1909, cannot

now anticipate and use the appropriation made for

the session of 1910, when that session cannot regu-

larly meet until June of this year.

My opinion, therefore, is, the appropriation made

for the session of 1910 is not now available and that

it is the duty of the Legi,slature, when it meets, to

pass a deficiency appropriation to pay the expenses

of this committee, as well as the other committees

which have not been paid.

I beg to remain,

Yours very truly,

c. J NO.

HART,

Attorney-GeneraL

REPORT OF ATTORNEY-GENERAL.

79

January 1st, 1910.
RoN. \VM. A. \VRIGHT, Comptroller-General, State Capitol.
Dear Sir:I am in receipt of your letter of even date in which
you ask for my official opinion upon the following inquiries:
1. May the Ordinary of a given county issue a license to dealers in beverages in imitation of or intended as a substitute for beer, ale, wine or whiskey or other alcoholic, spirituous or :malt liquors !in towns of less than 2,500 inhabitants, as shown by the last census report of the United States~
2. Is it a violation of law for a person, firm or corporation to deal in beverages in imitation of or substitute for beer, ale, wine, whiskey, etc., outside of incorporated cities 1
3. May a municipality of less than 2,500 inhabitants, according to the last census of the United States, grant a license to dealers in beverages in imitation of or substitute for wine, ale, beer, etc.~
Answering your first question: We have in Georgia two Acts on the subject of dealers in the beverages above described, to-wit: the Act approved September 5th, 1908, and the Act approved August 16th, 1909, known as the General Tax Act. These two Acts must be construed in pari materia. So much of the Act approved September 5th, 1908, imposing a tax upon dealers in or manufacturers of beverages or drinks in imitation of or intended as a substitute for beer, ale, wine, whiskey or other alcoholic, spirituous or malt liquors shall obtain a license so to d(} from the Ordinary of the 'county wherein the busi-

80

REPORT OF ATTORNEY-GENERAL.

ness is carried on, or in default thereof shall be

guiHy of a misdemeanor, is still of force. Under

that Act the license was not restricted and it became

the duty of the Ordinary to issue the license when

the dealer tendered the tax. The Act approved

August 16th, 1909, changes the amount of the tax

and restricts the granting of a license to dealers in

municipalities of 2,500 inhabitants or more; that is

to say, the Ordinary is not now permitted to issue a

license to a dealer to conduct this business in a town

of less than 2,500 inhabitants as shown by the last

census report of the United States.

Answering your second question: It would be a

violation of law and punishable as a misdemeanor

for one to engage in the sale of this beverage outside

of an incorporated city.

In answer to your third inquiry: A municipality

of less than 2,500 inhabitants has no authority to

issue a license to such dealers, and a person who

engaged in the occupation would be guilty of a mis-

demeanor, notwithstanding the municipality had

granted him a license.

As stated, the Act approved September 5th, 1908,

f,orbidding one from engaging in the sale of this bev-

erage without a license from the State and making

it a misdemeanor to do so without a license, is still

of force and has only been modified in its other pro-

visions by the Act approved August 16th, 1909, re-

stricting jt to citjes of a population of 2,500 and

over.

Yours very truly,

c. J NO.

HART,

Attorney-General.

REPORT OF ATTORNEY-GENERAL.

81

May 30, 1910. HoN. WM. A. WRIGHT,
Comptroller-General, State Capitol.
Dear Sir:Replying to your request of even date that I shall
advise whether under Paragraph 31 of Section 2 of the Tax Act, page 48, Acts of 1909, providing for a tax on corporations, a company organized for the purpose of buying and selling real estate and conducting farming operations, would fall within the provisions of the Section.
The language of the Act is, ''All corporations incorporated under the laws of Georgia shall, except those that are not organized for pecuniary gain or profit, and those that neither charge nor contemplate charging the public for services rendered, in addition to all other taxes now required by law of them, be and are hereby required to pay each year an annual license or o,ccupation tax as specified in the following scale.'' This is followed by a tax graded by the capital stock. It will be noted that certain corporations are exempt from the payment of this tax, to-wit: "Those that are not organized for pecuniary gain or profit, and those that neither charge nor contemplate charging the public for services rendered.''
It is the contention of the company that they neither charge nor contemplate charging the public for services rendered, and therefore are exempt from the payment of the tax. I do not so interpret the Act. I assume that the company is organized "for pecuniary gain or profit.'' To except suc-h company from the operation of the Act it must appear that

82

REPORT OF ATTORNEY-GENERAL.

it is not organized for pecuniary gain or profit, and

does not charge or contemplate charging the public

for services rendered. This company does not meet

the terms of the exemption, and is therefore liable

to the tax.

Yours very truly,

c. J NO.

HART,

Attorney-General.

March 24th, 1910.

HoN. WM. A. WRIGHT,

Comptroller-General,

State Capitol.

Dear Sir:-

I am in receipt of your inquiry of the 23d inst., to

which I reply as follows:

The provision in the Act approved August 15,

1908, "It shall be the duty of the Tax Collector col-

lecting the taxes

to close said voters' books

for said election six months before the date of said

general election, and no one shall be allowed to

register for said election unless he shall have paid

all taxes due by him at least six months before the

date of said general election," furnishes the rule by

which the day for closing the registration books may

be ascertained. The day for closing the registra-

tion books must be six months from the date of the

general election. The date of the general election

is fixed by law, viz., the first Wednesday in October,

which oecurs this year on the 5th day of October..

Therefore, beginning with the 5th day of October, we

must count back and ascertain the last day, which

must be six months from that date.

Is the 4th day of April that date, or the 5th day

REPORT OF ATTORNEY-GENERAL.

83

of April~ This question, if an open one m this <State, would not be altogether free from difficulty. In principle, however, it has been definitely settled by decisions of the Supreme Court of Georgia. Following the rules for computing time laid down by these decisions, I am of the opinion that the last day upon which voters may register in the approaching general election, to be held on October 5th, would fall on the 5th day of April, 1910. The Tax Collectors, therefore, of this State should permit persons. to register as late as on the 5th day of April, 1910. In other words, a person registering as late as April 5th, 1910, has registered six months before October 5th, 1910.
The Supreme Court of Georgia, in the case of English vs. Osborne, 59 Ga. 393, rules ''A rule nisi to foreclose a mortgage on land was served on the defendant personally on the 2nd of January, 1877, and on the first day of the next term, to-wit.; the2nd of April, 1877, the rule was made absolute. Held, that the 2nd of January, the day on which the rule nisi was served, should be counted, and, counting that day, three months had elapsed before the 2d of April, and the service upon the defendant was sufficient under the 39G2 Section of the Code.'' That is to say, the ruling there is, it is three months from the 2nd day of January, 1877, to the 2nd of April, 1877. Applying the principle of that case to the question you have submitted, it follows there are six months between the 5th of April, 1910, and the 5th of October, 1910, and a person registering on April 5th will have been registered six months at midnight of October 4th.
The Supreme Court of Georgia in the case of

84

REPORT OF ATTORNEY-GENERAL.

Peterson vs. The Georgia Railroad & Banking Co., 97 Ga., 798, held: "Following the rule for computing time laid down by this Court in the cases of Jones vs. Smith, 28 Ga. 41; English vs. Osborne, 59 Ga. 393; Parrott vs. Devine, 60 Ga. 632; W. & A. R. R. vs'. Carson, 70 Ga. 388; which rule was discussed and recognized in the case of Blitch vs. Brewer, 83 Ga. 333, an action brought on the 24th of October, 1893, for injuries to the person alleged to have been sustained on October 24th, 1891, was barred by the statute of limitations (Code, ~ 3060) and therefore properly dismissed on demurrer." There it will be observed the Court dismis,sed thepetition for the reason there was' more than two years intervening between the 24th day of October, 1891, and ~the 24th day of October, 1893, inclusive. There is, however, just two years from the 24th of October, 1891, to October 24th, 1893. Applying this principle to the question we are discussing, it follows there are just six months between April 5th, counting that day, to October 5th, and the person registering on the 5th of April will have been registered six months at midnight of October 4th, and therefore" six months before the date of the general election.''
If it be conceded, however, there is any doubt about the proposition, it is proper that the doubt should be resolved in favor of the right of the citizen to exercise the right of franchise. It ought not to be the policy of the 'State to deprive a citizen of the right of franchise upon a mere techn~cality, and give to words unusual and uncommon signification. It is the common understanding amongst people that from and including the 1st day of January, to, but

REPORT OF ATTORNEY-GENERAL.

85

not including February 1st, is a month; and it is

equally the understanding that from and including

the 1st day of January, to, but not including the 1st

day of July, would be six months; and equally un-

derstood that from and including April 5th, to, but

but not including October 5th, would be si~ months.

It is the duty, therefore, of the Tax Col1ectors to

register persons who are qualified to vote in the

approaching general election to be held on October

5th, as late as, and including, April 5th, 1910.

I beg to remain,

Yours Yery truly,

c. J NO.

HART,

Attorney-General.

March 30th, 1910. GoVERNOR J os. M. BRowN,
State Capitol. Dear Sir:-
Replying to your letter of March :--lOth in which you inquire whether a ma;nufacturtr of a "beverage or drink, or liquor in imitation of or intended as a substitute for beer, ale, wine or whiskey, and who also sold at wholesale, would be li[1ble to the tax of $1,000 as a manufacturer, and also a tax of $1,000 as a wholesale dealer," I beg to advise,-
Such manufacturer would not unless he maintained a supply depot, warehouse or place of business other than at the place of manufacture. I think the provision in the Act approved August 16, 1909. taxing manufacturers of the above-named beverage $1,000, contemplates that it may dispose of its prod net by wholesale where manufactured, without additional tax.

.86

REPORT OF ATTORNEY-GENERAL.

But if such manufacturer should establish a depot apart from the place of manufacture and there sold and distributed by wholesale the article manufactured, he should pay the additional $1,000 tax.
Yours very truly, JNo. C. HART, Attorney-General.

February 15th, 1910.
GovERNOR Jos. ~I. BROWN,
State CapitoL Dear Sir:-
Referring to your inquiry of yesterday, whether the establishment of a third State Depository for the funds of the State in the City of Atlanta, was a local or a general law, I beg to advise:-
The Act is local, in that it applies only to Atlanta. The General Assembly, by an Act approved August 17th, 1908, provided that whenever the Governor, from the excess in the State Depositories heretofore existing in the City of Atlanta or from the amount of cash on hand in the Treasury, may deem it to the best interest of the State,. he is authorized to appoint in the City of Atlanta a solvent chartered bank of good standing and credit as a State Depository, so as to make three State Depositories in said city. There is no provision for the establishment of a third depository in any other city in Geor-

gia.

Yours very truly,

c. J NO_

HART,

Attorney-General.