REPORT
OF THE
ATTORNEY-GENERAL
OF THE
STATE OF GEORGIA
191 I

REPORT AND OPINIONS
OF
T. S. FELDER
ATTORNEY-GENERAL OF GEORGIA
To His Excellency, .JosEPH M. BRowN, Governor:
DEAR Sm: I have the honor to submit this my report covering the period from July 1st, 1911, the beginning of my incumbency, to December 31st, 1911, as is required by law. There is accompanying the report a copy of those written opinions given in pursuance of my duty which are deemed of sufficient importance to justify their publication. I give a brief synopsis of the litigation in which the State is interested and the present status of each case.
I have represented in the Supreme Court of the State, during the period of time for which this report is made, the following capital cases:

4 .

ATTORNEY-GENERAL's REPORT

Lee Jones vs. The State. Milton County. Murder. Death. Argueu July 17th, 1911. Decided Oct. llth, 1911. Affirmed.
:B_,rank Wright vs. The State. Butts County. Murder. Life imprisonment. Argued July 17th, 1911. Decided August 18th, 1911. Affirmed.
Loyd Helms vs. State. Jasper County. :Murder. Life imprisonment. Argued July 17th, 1911. Decided September 22d, 1911. Reversed.
E. B. Alford vs. State. Bibb County. Murder. Death. Argued .July 17th, 1911. Decided December 14th, 1911. Affirmed.
Will Johnson vs. State. ~Jarly County. Murder. Life imprisonment. Argued July 17th, 1911. Decided September 22d, 1911. Affirmed.
J. F. Hudgens vs. State. Baker County. Murder. Life imprisonment. Argued July 17th, 1911. Decided August 18th, 1911. Affirmed.
Dallas Baker vs. State. Butts County. Murder. Life imprisonment. Argued July 17th, 1911. Decided September 2nd, 1911. Affirmed.
Buster Price vs. State. Worth County. Murder. Life imprisonment. Argued October 16th, 1911. Decided November 14th, 1911. Affirmed.
W. B. VVTalker vs. State. Bibb County. Murder. Death. Argued November 20th, 1911. Decided December 12th, 1911. Affirmed.
P. C. Futch et al. vs. State. Tatnal1 County. Murder. Life imprisonment. Argued October 16th, 1911. Decided November 14th, 1911. Affinned.
Cliff Adkins vs. State. Toombs County. ~I ur-

. ATTORNEY-GENERAL'S REPORT

5

der. Life imprisonment. Argued October 16'th, 1911. Decided November 14th, 1911. Affirmed.
Kid Glover vs. State. Crisp County. Murder. Death. Argued October 16th, 1911. Decided November 14th, 1911. Affirmed.
Joe Woods vs. State. Bulloch County. Murder. Life imprisonment. Argued October 16th, 19,11. Decided November 14th, 1911. Affirmed.
Jim Crawley vs. State. Pike County. Murder. Life imprisonment. Argued November 20th, 1911. Decided March 13th, 1912. Affirmed.
James Jefferson vs. State. Muscogee County. Murder. Death. Argued October 16th, 1911. Decided January 11th, 1912. Affirmed.
Johnson Harris vs. State. Crisp County. Murder. Life imprisonment. Argued Octobei 17th, 1911. Decided November 15th, 1911. Affirmed.
Will Thompson vs. The State. Bibb County. Murder. Life imprisonment. Argued November 20th, 1911. Decided December 12th, 1911. Affirmed.
A. D. Strickland vs. State. Jeff Davis County. Murder. Life imprisonment. Argued October 17th, 1911. Decided November 15th, 1911. Affirmed.
F. T. Taylor vs. State. Appling County. Murder. Death. Extraordinary motion. Argued October 17th, 1911. Decided November 14th, 1911. Dismissed.
Isaac Holton vs. State. Dooly County. Murder. Life imprisonment. Argued October 17th, 1911. Decided November 14th, 1911. Affirmed.
Walter Whitfield vs. State. Floyd County. Murder. Life imprisonment. Argued October 17th, 1911. Decided November 15th, 1911. Affirmed.
Bayless Merck vs. State. Hall County. Murder.

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ATTORNEY-GENERAL's REPORT.

Death. Argued October 18th, 1911. Decided December 12th, 1911. Affirmed.
Jesse Ha!deman vs. State. Madison County. Rape. Ten years. ~~rgued November 20th, 1911. Decided December 12th, 1911. Affirmed.
Willis Ellison vs. State. Worth County. Mur-
- der. Life imprisonment. Argued November 21st
1911. Decided December 13th, 1911. Affirmed. Richard vVashington vs. State. Jasper County.
Murder. Life imprisonment. Argued November 21st, 1911. Decided December 14th, 1911. Reversed.
Gus Glasco vs. State. Laurens County. Murder. Life imprisonment. Argued December 18th, 1911. Decided January 9th, 1912. Affirmed.
Carrie Scott vs. State. Warren County. Murder. Life imprisonment. Argued December 18th, 1911. Decided January 9th, 1912. Affirmed.

STATE OF GEORGIA VS. WEST'ERN & AT-
LANTIC RAILROAD COMPANY.
On November 14-, 1911, the following Executive
order was entered:
''WHEREAs, The Railroad Commission of Georgia has brought to the attention of the Governor the fact that the lessees of the Western & Atlantic Railroad are violating the terms of the lease by charging freight rates exceeding the Georgia Standard Freight Tariff, and,
"WHEREAs, by letter dated October 20, 1911, the Western & Atlantic Railroad Company was called upon to put into effect rates not exceeding the Georgia Standard Freight Tariff for any and all freight passing on or over the Western & Atlantic Railroad: and,
''WHEREAs, the President of said company ha;;;

ATTORNEY-GENERAL's REPORT

7

declined to put into effect rates not exceeding the

Georgia Standard Freight Tariff, THEREFORE

''The Attorney-General and the Special Counsel

for the Railroad Commission are hereby directed to

take such legal procedure as may be necessary to

compel the vVestern & Atlantic Railroad Company,

lessees' of the Western & Atlantic Railroad, to put

into effect rates not exceeding the Georgia Standard

Freight Tariff for any and all freight passing on or

over the Western & Atlantic Railroad.

(Signed)

HoKE SMITH,

Governor.

By the Governor,
c. M. HITCH,

Secretary Executive Department.''

In conformity with the above order the Hon. James K. Hines, Special Attorney to the Railroad Commission, and I prepared and filed on November 11, 1911, in Fulton Superior Court, in the name of the State against the vVestern & Atlantic Railroad Company, a petition setting forth the violations of the lease contract in the particulars named in said order, and prayed that said company be perpetually enjoined from charging greater rates' per ton per mile on through freight than the local rates on similar freight fixed and allowed by the Railroad Commission of this State for said railroad, and that said railroad company be specifically required and compelled by a decree of the court to perform the provisions of its contract with the State in this regard. The defendant company filed a general and special demurrer and an answer. The case was heard before Judge Pendleton, ofthe Atlanta Circuit, on the general demurrer, and the demurrer was sustained and the petition ordered dismissed. The State excepted to this ruling of the court and carried the

8

ATTORNEY-GENERAL's REPORT

case to the Supreme Court, where it is now pending.
The provisions of the lease contract which the State
claims are being violated is contained in section
nine of the lease act, (Act approved November 12,
1889) as follows:
''That said lease company shall be subject to, and required to observe and obey all just and reasonable rules, orders, schedules of freight and passenger tariffs as may be prescribed by the laws of this State and the Railroad Commission of this State; and said lease company shall charge no greater rate per ton per mile on through freight on said railroad than the local rate allowed and fixed on similar freights by the Railroad Commission for
said railroad * * * *. ''
The contention of the State is that under this
section of the contract the fiXing by the Railroad
Commission of a rate for local freight to be charged
on said railroad at the sam.e time fixed the rate to be
charged on said road for through freight, and that
it, thereupon, became the duty of the lessee company
to file with the Interstate Commerce Commission a
tariff of freight rates in accordance with its said
contract, subject, of course, to such supervision as
the Interstate Commerce Commission is allowed by
law to interpose. The defendant company contends that the above
quoted section of the Act, in so far as it attempts to
fix its charges for through freight, is void as an in-
terference with the interstate commerce clause of
the Federal Constitution, and it was upon this
ground that the demurrer to the petition was sus-
tained by the court.

ATTORNEY-GENERAL's REPORT

9

CENTRAL OF GEORGIA RAILWAY CO. VS. WILLIAM A. WRIGHT, COMPTROLLERGENERAL.
This case arose upon a bill in equity filed in the District Court of the United States for the Northern District of Georgia, to enjoin the levy of an execution issued by the Comptroller-General against the Central of Georgia Railway Company for ad valorem taxes claimed by the State to be due by said company on the properties of the Augusta & Savannah Railroad and the Southwestern Railroad. The defendant company claims that as lessee of the Augusta & Savannah Railroad and the Southwestern Railroad they are only requi:r;ed, under the charters of these two roads, to pay the State on the basis of one-half of one per cent. on the income of the respective roads, and should not be taxed upon an ad valorem basis.. The State contends that the tax provisions in the original charters were personal to the companies and were not vendable or assignable and, therefore, could not be invoked by the Central of Georgia Railway Company as the measure of its liability for taxation, either as owner or lessee. The case is now in order to he heard upon a demurrer filed by the State to the bill. Hon. John C. Hart was employed as special counsel in this case by Hon. Hoke Smith, Governor.

GUSSIE SINGLETON, ALIAS GUSSIE WILLIAMS, VS. W. W. WELLS, STATE: WARDEN.
Gussie Singleton, a negro woman, was confined in the chain-gang of Dooly county under a sentence

10

ATTORNEY-GENERAL's REPORT

of the City Court of Vienna upon her plea of guilty to an accusation charging her with a violation of Section 715 of the Penal Code, which is commonly known as the labor contract statute. She presented to the Ron. Emory Speer, Judge of the District Court of the United States for the Southern District of Georgia, an application for a writ of habeas corpus directed against W. W. Wells, the warden in charge of the convict camp of Dooly county. The County Commissioners of said county, through Ron. W. F. George, Solicitor-General of the Cordele circuit, requested the services of the Attorney-General in defending the case, and after a conference had with Ron. John M. Sla~on, Governor, I was authorized and directed by him to appear with the Solicitor-General for the defense. In this case the validity of the labor contract statute was attacked as being in violation of the Federal Constitution, and acts of Congress passed in pursuance thereof, and especially the act prohibiting the holding of a person in a condition of peonage. The Solicitor-General and I appeared before the District Judge at Macon on the 21st day of November, 1911, and presented an answer and return to the petition for habeas corpur and rule granted upon the same, challenging the jurisdiction of the court and maintaining the validity of the labor contract law. After a hearing had the judge took the case under consideration, and no opinion has as yet been rendered by him.

JOE DARSEY, PLAINTIFF IN ERROR, VS. STATE OF GEORGIA.
Joe Darsey was tried in the Superior court of La:urens county for murder. The jury returned a

ATTORNEY-GENERAL's REPORT

11

verdict of involuntary manslaughter. The presiding judge refused to receive this verdict, the jury not having been charged upon the law of involuntary manslaughter. After further deliberation the jury reported to the court that they were unable to agree upon a verdict, and the judge thereupon, over objection of counsel for defendant, ordered a mistrial. when the case was again called for trial the accused filed a plea of former conviction and former jeopardy. This plea and traverse filed to the same were heard and the issue found against the accused. An appeal was taken to the Supreme Court of Georgia, and the judges being evenly divided in opinion the judgment of the lower court was affirmed by operation of law. On June 30, 1911, Darsey was granted a writ of error, and his case carried to the Supreme Court of the United States. The Federal questions sought to be made are that the plaintiffin-error has been denied that due process of law guaranteed him by the Fourteenth amendment to the Constitution, and that he has been twice in jeopardy for the same offense in violation of the Fifth amendment to the Constitution, by the action of the trial court in refusing to sustain his plea of former conviction. On October 9, 1911, on the convening of the October Term of the Supreme Court of the United States, I presented a motion to advance the hearing of the case, which motion was denied by the court. The case is now pending.

W. J. McNAUGHTON, PLAINTIFF-IN-ERROR, VS. THE STATE OF GEORGIA.
W. J. MeNaughton was tried and convicted in the Superior court of Emanuel county for murder

12

ATTORNEY-GENERAL's REPORT

and sentenced to death. He carried his case to the Supreme Court of Georgia, where the judgment of the lower court was affirmed. On the 12th day of September, 1911, a writ of error was granted him and his case carried to the Supreme Court of the United States. The Federal question sought to be made is that he was denied due process of Jaw, as guaranteed him by the Fourteenth amendment, in that his case was heard by the Supreme Court of Georgia by oral argument had before a division of the court consisting of three judges, and, thereafter, the court as a who]e passed upon his case affirming the judgment of the court below. I presented a motion to advance this case, which was granted by the court and the case assigned for a hearing. When the case was reached pursuant to this assignment it was dismissed by the court for failure on the part of the plaintiff-in-error to print the record. I collected the attorney's ~ee taxed as costs against the plaintiff-in-error of twenty dollars and paid the same into the State Treasury.

The following cases were pending when I entered upon the duties of the office:

JOHN C. HART, ATTORNEY-GENERAL OF THE STATE OF GEORGIA, VS. THE NEAL BANK.
The assets of the Neal Bank were upon a petition filed by the State of Georgia in the Superior court of Fulton county in 1907 taken into custody by a receiver. This bank was a designated depository of the State, and at the time of its failure was indebted to the State in a large sum of money deposited in

ATTORNEY-GENERAL's REPORT

13

the names of certain officers of the State. The State by intervention set up and established its claim and priority of payment to a deposit of $192,502.90 appearing in the name of R. E. Park, State Treasurer, and one for $11,871.08 appearing in the name of T. R. Floyd, Tax Collector of DeKalb county, which sums were collected and paid into the State Treasury in 1908, less $4,812.57 retained out of the funds as commissions for the receiver.
In addition to the above named amounts the State, by appropriate proceedings, set up its claim and priority of payment to a deposit appearing in the name of C. J. Wellborn, State Librarian, of $1,511.54, and another in the name of W. S. Yeates, State Geologist, in the sum of $1,300.49. Certain creditors contested the right of the State to priority of payment on these two deposits, and the issue was finally carried to the Supreme Court, where a decision was rendered on February 26, 1910, sustaining the State's right to priority of payment, but directing that evidence be heard by the lower court as to the State's ownership of the funds making up the deposits. I made formal proof before the court and jury of the State's ownership of these two deposits and received a verdict and decree for the balance of the amount due, to-wit, $1,309.38, partial payments having been made on the original amounts, which sum was collected by me from the receiver, and paid into the State Treasury.
Upon investigation I learned that an appropriation made by the General Assembly for the building of the monument to General John B. Gordon had been placed in the Neal Bank in the name of the Gordon Monument Commission Fund, and that there

14

ATTORNEY-GENERAL's REPORT

was remaining of that fund in said bank the sum of $859.46. I filed an intervention setting up the ownership of the State to this deposit and right to priority of payment which was allowed by the court. I also set up in the same intervention the State's right to be paid 2 per cent. interest on the daily balances on all of the above public funds held by the bank up to the time of its failure, and 7 per cent. interest from the date of its failure to the time when the principal sums were actually paid to the State. The Neal Bank being a depository of the State was under contract to pay the State semi-annually interest at the rate of two per cent. per annum on daily balances of public money, and as a matter of law the State was entitled to 7 per cent. interest on such funds from the date of the failure of the bank. Those contentions were contested by the receiver, and after a hearing before His Honor, Judge Wm. D. Ellis~ the State's claim to interest both contractual a11d legal was upheld, and a decree was entered accordingly. This decree was excepted to by the receiver and the question carried to the Supreme Court of Georgia for a decision. The case has been argued in that court, but a decision has not yet been rendered.

LOUISVILLE & NASHVILLE RAILROAD COMpANY AND ATLANTIC COAST LINE RAILROAD COMPANY VS. WILLIAM A. WRIGHT', COMPTROLLER-GENERAL.
This case arose upon a bill in equity filed in the Circuit Court of the United States for the Northern District of Georgia by these two railroad companies as lessees of the Georgia Railroad against the Comp-

ATTORNEY-GENERAL's REPORT

15

troller-General for the purpose of enjoining the collection of State, county and municipal school district taxes from the lessees on the property known as the Georgia Railroad, held by these lessees under a 99 year lease, and on certain terminal property in Atlanta and rolling stock acquired by the lessees since the lease. The lessees contend that all the property of the Georgia Railroad is exempt from all taxes except a tax of one-half of one per cent. of the net income on its investments under the charter granted it by the General Assembly. The State contends that the exemption granted by the charter was a personal one to the Georgia Railroad, and that it does not inhere in and follow the property in the hands of the lessees. From the beginning of the suit Hon. John C. Hart has acted as Special Counsel for the State and Hon. Samuel H. Sibley has represented certain counties at interest. The case has been heard upon its merits before Judge Wm. T. Newman and he now has the same under advisement.

WESTERN UNION TELEGRAPH COMPANY VS. WILLIAM A. WRIGHT, COMPTROLLER-GENERAL. This case was begun in 1908 by a bill in Equity
m the Circuit Court of the United States for the Northern District of Georgia against the Comptroller-General to enjoin the collection of the franchise tax levied under the Act approved December 17, 1902. The telegraph company contends that it is exempt from the payment of this franchise tax by reason of its acceptance of the terms of the postroads act of Congress ; the State denies this conten-

16

ATTORNEY-GENERAL's REPORT

tion and says that the telegraph company operates in Georgia under the laws of the State and is bound to pay this tax imposed. Judge John C. Hart and .J. D. Kilpatrick, Esq., ha\'e been of counsel for the State from the beginning of the suit. The case was heard before Judge Newman on a general demurrer filed by the State, and the demurrer was sustained and the bill dismissed. An appeal was taken to the U. S. Circuit Court of Appeals and the case there reversed and remanded to the lower court for a hearing on the bill and answer. The case was thereafter referred to an examiner for the purpose of taking testimony, and the taking of the testimony is now in progress.

STATE OF GEORGIA VS. WEtSTERN & ATLANTIC RAILROAD COMPANY.
This suit was filed in the Superior Court of Fulton county in 1909 by the State to recover ad valorem taxes on property not included in that turned over by the State to the lessee company, and also to recover a certain income tax as fixed by the lease contract. The defendant company demurred to the petition, which demurrer was sustained by the court and the petition dismissed. An appeal was taken by the State to the Supreme Court of Georgia, and a decision was therein rendered affirming the court below. Hon. Hooper Alexander was special counsel in the case. The case was argued before the Supreme Court prior to the time I came into office, and was decided by the court on August 15, 1911.

ATTORNEY-GENERAL's REPORT

17

ATLANTIC COAST' LINE RAILROAD OOMp ANY, PLAINTIFF IN ERROR, VS. ST1ATE OF GEORGIA.
This case arose upon a prosecution in the City court of Richmond county against this railroad company for its failure to comply with the Act of the General Assembly, approved August 17, 1908, requiring all railroad companies to equip with a good and sufficient headlight, consuming not less than 300 watts at the arc and with a reflector not less than 23 inches in diameter, its locomotives run upon the main line of its road after dark. The railroad company was found guilty in the trial court, and it appealed the case to the Court of AppealS' of Georgia where the verdict and judgment of the lower court was affirmed. It then carried the case to tbe Supreme Court of the United States, the writ of error being granted on the 17th day of January, 19111 where it is now pending. A motion to advance the hearing of the case was presented to the court by my predecessor at the October Term, 1910, which motion was denied by the court on the conYening of the October term, 1911. As its defense this railroad company contends that this Act of the Legislature is void in that it is repugnant to the interstate commerce clause of the Federal Constitution, and is a taking of its property without due process of law in violation of the 14th amendment.

GEO. W. CURETON, PLAINTIFF-IN-ERROR VS. STATE OF GEORGIA. (Two Oases.) These two cases arose out of prosecutions in Dade
Superior court for violations of the prohibition law. Cureton defended by attacking the constitutionality

18

ATTORNEY-GENERAL's REPORT

of the law, and upon conviction appealed his cases to the Court of Appeals of Georgia, and upon the copvictions there being affirmed, he carried the cases to the Supreme Court of the United States, where they are now pending. The writs of error were granted in April, 1911. Motions were presented by my predecessor to advance the hearing of these cases at the October Term, 1910 of the court, which motions were denied at the October Term, 1911. TIJle Federal questions sought to be made are that the prohibition act of 1908 is in violation of the interstate commerce and due process clauses of the Constitution of the United States.

SAMUEL LOEB, PLAINT'IFF-IN-:IDRROR, VS. STATE OF GEORGIA.
This case arose in the criminal court of the city of Atlanta, upon an accusation charging Loeb with a Yiolation of the prohibition law. The defendant being convicted carried his case to the Court of Apyeals of Georgia, and on the judgment of the lower court being affirmed, he carried the case to the Supreme Court of the United States, the writ of error being granted on the 21st day of December, 1909. The Federal questions sought to be made are that the provisions of the Constitution against unreasonable searches were denied to the defendant in that whiskey which was obtained from his premises was permitted to be introduced in evidence over his objection, and that the interstate commerce clause of the Constitution was violated in that the whiskey in question was seized while in transit from another State. On the convening of the Supreme Court for the October Term, 1911, I presented a motion to ad-

ATTORNEY-GENERAL's REPORT

19

vance the hearing of the case, which motion was denied. When the ease was reached in its order for trial it was dismissed by the court for failure of the plaintiff-in-error to print the record. Thereafter the defendant filed a motion to reinstate the ease, which motion was granted and the case is now pendmg.

ST'ATE OF GEORGIA, COMPLAINANT, VS.
TENNESSEE COPPER COMPANY, AND
DUCKTOvVN SULPHUR, COPPER AND
IRON COMPANY, LTD.
Prior to my incumbency the following stipula-
tion and agreement was entered into and filed as a
part of the record in the above stated case:
"IN THE SuPREME CouRT OF THE UNITED STATES. October Term, 1906. No. 5, Original. The State of Georgia, Complainant, vs. The Tennessee Copper Company and the Ducktown Sulphur, Copper and Iron Company, Ltd.
''Come now the State of Georgia, by its AttorneyGeneral, H. A. Hall, and the Tennessee Copper Company, by its attorney of record, Howard Cornick, and respectfully represent to the Court that the parties to the above entitled cause have entered into the following stipulations and agreement, to-wit:
"1. Whereas, on the 13th day of May, 1907, the Supreme Court of the United States in the above styled 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 allowing 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,
"2. Whereas, the said acid plant of the defendant, Tennessee Copper Company, costing more than $1,000,000.00, has been enlarged and just recently

20

ATTORNEY-GENERAL's REPORT

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 $100,000.00, in order to bring the said acid plant up to a state of greater efficiency and perfection; and,
'' 3. Whereas, the said defendant is unwilling to spend said additional sums of money without assurance of the opportunity to test out the efficiency of its newly finished and enlarged acid plant for several
years; and, "4. -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 Tennessee 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.
''Second. That on or before the lOth dav 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, ] 911, 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 30th, 1911, both inclusive; also, on or before August lOth, 1911, a similar statement covering the -period from July 1st to July 31st, 1911, both inclusive; a1so, on or before Septem-
ber lOth, 1911, a similar statement covering the

ATTORNEY-GENERAL's REPORT

21

period from August lst to August 31st, 1911, both inclusive. _AJso similar reports to be made on corresponding dates to cover corresponding periods in the years 1912 and 191:3, respectively.
"Third. It is further stipulated and agreed between the 11mties 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 applica6on for any order or decree, it wm give to the other at least thirty days' notice of its intention.''
The premises considered, the parties hereto res11ectfully move the Court that the said stipulations and agreement be :filed and made a part of the record in said cause, and, under the terms and conditions of said agreement, that said cause be postponed until the October T'erm, ] 91:3, of said Court, without prejudice to either party.
H. A. HALL, Attorney-General of Georgia.
HowARD CoRNICK, Attorney for Tennessee Copper Company.
The Tennessee Copper Company has :filed with
the Attorney-General verified statements in compli-
ance with the above contract.
During the summer and fall I received a number
of complaints from citizens of Georgia in the vicin-
ity of these copper companies of damage from the
fumes to the growing crops, fruit trees, etc. From
the complaints I have received I gather that while
the damage has been lessened it has not been abated,
and Georgia citizens are still suffering from the acid
fumes.

By the following Executive order the control and direction of the litigation in which the Railroad Com-

22

ATTORNEY-GENERAL's REPORT

mission is involved was placed with the Special
Counsel to the Commission:
''Executive Department, Atlanta, Ga. August 8, 1911.
''JUDGE JAMEs K. HINEs, Attorney, Railroad Commission, Atlanta, Ga.
''Dear Sir: Several days ago I had a conversation with you in which I expressed the desire that you should investigate all pending litigation against the Railroad Commission, and especially that litigation brought by railroad companies to enjoin freight rate reductions.
''Since that conversation I have conferred with the Attorney-General, and in view of the technical character of the litigation involving acts of the Railroad Commission, I now desire to add that in the future you are authorized to take charge as leading counsel of any and all litigation in which the Railroad Commission is involved. The Attorney-Gen-. eral will aid you in such litigation when you so request, but the responsibility for directing the litigation is placed upon you.
''This plan for the management of litigation connected with the Railroad Commission will continue until changed by Executive direction.
Very truly, HOKE SMITH, Governor.''
(Executive Minutes, 1911-1913, page 28.)
The cases pending against the Railroad Com-
mission are as follows:
THE CENTRAL OF GEORGIA RAIL-WAY
COMPANY VS. H. WARNER HILL, ET AL.,
RAILROAD COMMISSIONERS, ET AL.
THE ATLANTIC COAST LINE RAILROAD
COMPANY VS. H. vVARNER HILL, ET AL.,
RAILROAD COMMISSIONERS, E:T AL.

ATTORNEY-GENERAL's REPORT

23

S017THERN RAILvVAY COMPANY VS. H. W AR~ER HILL, ET AL., RAILROAD COM:l'IHSSIONERS, ET AL.
These three suits are of the same nature and arose upon hills :filed in the Circuit Court of the United States for the Northern District of Georgia to enjoin the enforcement of Circulars Nos. 316, 317 and 318 issued by the Railroad Commission. Circular Xo. 316 placed the Central of~ Georgia Railway Company in Class B of the Commission's classified list of railroads; No. 317 placed the Atlantic Coast Line Railroad Company in Class A-1; No. 318 placed the Southern Railway Company in Class B. Temporary restraining orders were granted by the court in each case. The cases are now pending upon mo-
tions to dissolYe the restraining orders.

THE CEXTRAL OF GEORGIA RAILvVAY CO., ET AL., VS. S. G. McLENDON, ET' AL., RAILROAD COMMISSIONERS, ET AL.
This suit arose upon a bill filed in the Circuit Court of the rnited States for the Northern District
of Georgia to enjoin the enforcement of an order of
the Railroad Commission lowering the passenger rate. Xo restraining order was granted by the court, and the rate went into effect as ordered by the Railroad Commission and said rate is now in force. The case is pending to be heard on its merits.

STATE OF GEORGIA VS. WADLEY SOUTHERN RAIL\VAY COMPA)JY.
This is a suit brought in the Superior Court of ,Jefferson county to recover a penalty from this rail-

24

ATTORNEY-GENERAL's REPORT

road for the disobedience of an order of the Railroad Commission issued in regard to the interchange of freight between the Macon, Dublin and Savannah Railway Company and the Wadley Southern Railroad. A verdict was obtained for the State and a penalty of $1,000.00 imposed on the defendant company. The c?mpany then carried the case to the Supreme Court of Georgia, where the judgment of the lower court was affirmed. Thereupon the company carried the case to the Supreme Court of the United States, where the same is now pending.
Respectfully submitted,
s. T. FELDER,
Attorney-General.

ATTORNEY-GENERAL's REPORT

25

OPINIONS.
State of Georgia, Executive Depar1nwnt, Atlanta, August 2, 1911.
HoR. '1'. S. FELDER, Attorney-General, Atlanta, Ga.
Dear Sir: I beg to enclose you herewith a communication received by me from Mr. W. R. L. Ritchie, of Demorest, Ga., together with his check for $25.00, which he tenders to the State in settlement of any claim that the State might have against ~ertain lands in Rabun county. You will also find enclosed a deed prepared by Mr. Ritchie which he desires the State to execute in accordance with the provisions of an act of the Legislature passed in 1903, see Acts of 1903, page 86. I am transmitting all the papers to you in order that you may investigate the law on the subject and furnish me with information as to whether I am authorized to execute this conveyance.
Very truly yours, HoKE SMITH, Governor.

RoN. HoKE SMITH, Governor, State Capitol.

August 9, 1911.

Dear Sir:-
Replying to your letter of this date with which you send me the application of Mr. T'. J. Richie for a conveyance of the State's interest in Land Lot No. 100 in the First District of Rabun County, and re-

26

ATTORNEY-GENERAL'S REPORT

questing my opinion as to your authority to make the conveyance.
I find upon the Executive Minutes an order of the Executive passed in 1903 authorizing and directing suits to be brought for the recovery of certain land lots in certain counties of the State which were originally set apart by the State for the education of poor children. The land lots to be sued for were distinctly named in the order, and the counties in which the lots were located were also named. Rabun county is not in this order named. (See Executive Records, Minute Book 1902-6, Pages 52-54, and 70.) Thereafter, the General Assembly passed an act authorizing the settlement or compromise of suits which had been brought by the State, or which the State contemplated bringing, for the recovery of property held or claimed adversely to the State. (Acts 1903, page 86.) This act was evidently passed to authorize the settlement of the suits which had been brought by direction of the Bxecutive order above referred to, and such suits as it was contemplated might be brought under the order.
It is my opinion, however, that the act is broad enough to authorize the Governor to compromise or settle with adverse claimants to land lots in any of the counties, whether particularly set forth in the order above referred to or not.
Under the facts set out in Mr. Richie's application the State is clearly the owner of the property described, and has lost none of its rights to the land by reason of any fact mentioned. This is made clear by the case of the State of Georgia vs. Paxon & Cannon, reported in the 119th Georgia Report, page 730.

ATTORNEY-GENERAL's REPORT

27

Mr. Ritchie asks the State to relinquish its right to 490 acres of land for $25.00.
I find in the files of the Attorney-General's office a copy of a letter written by the Attorney-General to the Governor of date of February 4, 1910, which indicates that the State relinquished its right to land lot No. 10 in Rabun county for the sum of $490.00. I am returning all papers.
Very truly yours,
s. T. FELDER,
Attorney-General.

November 14, 1911.
'GovERNOR HoKE SMITH,
State Capitol. Dear Sir:-
I enclose deed prepared for your signature conyeying lot of land number 100 in the first district of Rabun county for consideration of $490.00, as per your instructions.
This grant should be attested by the Secretary of State. Civil Code 210 (2).
The money received as the consideration for the instrument should be turned into the Treasury, and be there credited to the Educational fund. This disposition of the money is required by the Act of 1903, page 86, the authority under which you are making this conveyance.
Very truly,
s. T. FELDER,
Attorney-General.

28

ATTORNEY-GENERAL's REPORT

BoN. HoKE SMITH, Governor, Executive Office.
Dear Sir:Replying to your inquiry made through your Sec-
retary, Mr. Hitch, if the bill of the High Rock Water Company for drinking water furnished to the House of Representatives during its past session can be paid by you out of the contingent fund.
It appears that the water was purchased by the Secretary of State under the direction of a resolution of the House.
As I understand the purpose of the contingent fund, which is appr,opriated each year to be expended under direction of the GoYernor, it is to pay those expenses and obligations of the State which are liable but not certain to occur, and which cannot well be foreseen by the General Assembly. This debt was made by a branch of the General Assembly and of course was well known while that body was in session, and it could not very well come within the definition of a contingent debt or liability of the State.
I do not think that expenses of the Legislature are chargeable anyway against the contingent fund. Appropriations are directly made to meet the expenses of the Legislature, and where a sufficient fund has not been appropriated to meet these expenses I do not think it proper for the Executive to augment the amount out of the contingent fund. The general appropriation act carries for each year a contingent fund, so to speak, to meet the incidental expenses of both branches of the General Assembly. The general appropriation act of 1909, making the appropriations for the years 1910 and 19'11, after enumer-

ATTORNEY-GENERAL's REPORT

29

ating numbers of appropriations to cover specific
items for the Legislative Department, contains a
provision as follows :
'' T'o pay the incidental expenses of the Generai Assembly to be paid on itemized accounts accompanied by properly receipted vouchers for the payments made, and presented to the Governor by the Secretary of the Senate and the Clerk of the House of Representatives, seventy-five ($75.00) dollars for the House of Representatives and fifty ($50.00) dollars for the Senate, or so much thereof, respectively, as may be needed." (Acts 1909, page 13.)
This water bill might come under the head of an
incidental expense, and if properly approved might
be paid out of the sum appropriated for incidental
expenses of the House for the present year, but the
water bill amounts to $164.70, which greatly exceeds
the appropriation made for incidental expenses.
It is my opinion that the claim cannot be paid
out of the contingent fund.
The Legislature, when it next convenes, will
doubtless take care of the bill by a specific appro-
priation.
Very truly,
T. s. FELDER,
Attorney-General.

State of Georgia, Executive Office, Atlanta, Nov. 8, 1911.
HoN. THos. S. FELDER, Attorney-General, City.
Dear Sir:The Grand Jury of Jeff Davis county at there-
cent session of the Superior Court recommended the

30

ATTORNEY-GENERAL's REPORT

establishment of a county court for said county, under the general county court law embraced in the Code of 1895, Sec. 4170 et seq. This law seems to have been omitted from the Code of 1910, and Governor Smith wishes you to furnish him with an opinion as to whether this law has been repealed or not.
Would be glad to have the opinion by tomorrow, if
possible.
Very truly yours,
c. M. HITCH,
Secretary Executive Department.

November 8, 1911. HoN. HoKE SMITH, Governor,
State Capitol.
Dear Sir:-
Replying to your inquiry made through your Secretary, Mr. Hitch, by letter of this date in the matter of the Jeff Davis County Court.
I am of the opinion that the omission of the sections of the Code of 1895 in reference to county courts from the new Code did not repeal the law, and that it is still in force. This seems to have been the ruling of our Supreme Court in passing on omissions of existing laws from our previous Codes.
It is my understanding that the sections referred to were omitted from the new Code on authority of Lorenze & Rittler vs. Alexander, 87 Ga. 444, this decision declaring the Act of 1879, in so far as it looked to the establishment of county courts, to be a special and not a general law. It was the opinion of those who had the supervision of the new ()ode in charge

ATTORNEY-GENERAL's REPORT

3'1

that only laws of a general nature should be contained therein.
Very truly,
T. s. FELDER,
Attorney-General.

November 18, 1911. HoK. JoHN M. SLATON, Governor,
Capitol.
Dear Sir:-
I am in receipt of your letter requesting my opin-
ion on the following questions:
(1) "What are the duties of tax collectors in reference to the closing of the registration books and the making up of a list of the registered voters for the special election for Governor~
(2) "What are the duties of the registrars in this regard 7
(3) "What effect will the time of holding the special election have on the registration of voters for the special election and primary election which has been fixed for December the 7th 7
(4) "How does the time of holding the special election effect voters as to the requirements of the law in regard to the payment of taxes~"
I respectfully submit to you the following as my
answer:
(1) Within five days after your Excellency's
proclamation ordering the special election for Gov-
ernor it is the duty of the tax collectors to close their
voters' books, and within five days after closing said """'~ters' books they are required to file with the
county registrars an accurate and complete list of
all the names signed in said voters' books since the
close of the voters' books for the last general elec-
tion, that is, since the closing of the voters' books

32

ATTORNEY-GE~ERAr,'s REPORT

for the general election of 1910, and not before filed with said registrars for the last general election. This supplemental list must be prepared by the tax collectors in the same manner as the lists are prepared for the general election, the manner of which is set forth in Section 48 of the Civil Code.
(2) Within five days after receiving this supplemental list the registrars are required to file the same with the Clerk of the Superior court, showing the names of additional voters who are entitled to vote in said election, but before filing said list with said clerk it is made the duty of the. registrars to purge the list. of all persons who. are not qualified to vote at said election in the same manner as they purge the registration list for the general election. They should purge from the list all persons who have not paid their taxes, other than the taxes of 1911, at least six months prior to the date of the special election, and they should also purge from the list of the registered voters prepared for the general election of 1910 all persons who have failed to pay their 1910 taxes at least six months prior to the date :fixed for the special election. The registrars should, of course, purge from both of said lists all persons who are by law disqualified for any other reason from voting, such as idiots, insane persons, and persons convicted of the crimes made by law a disquali:fication. (Civil Code, 6404).
The Constitution provides that to entitle one to vote he must ''have paid all taxes which have been required of him since the adoption of the Constitution of Georgia of 1877 that he may have had an opportunity of paying agreeably to law. Such payment must have been made at least six months prior

ATTORNEY-GENERAL's REPORT
to the election at which he offers to vote, except whmi such elections are held within six months of the e:x. piration of the time fixed by law for the payment of such taxes.'' This provision of the Constitution is what guides me in my opinion that back taxes must have been paid at least six months befo-re the special election is held in order to entitle one to vote at either of the elections.
After the registrars have purged the lists it then becomes their duty to furnish the managers of the special election, and, also the managers of the primary election two lists, one composed of the list of voters entitled to vote by reason of their registration for the last general election, and the other made up of those entitled to vote by reason of their subsequent registration.
The payment of the taxes for 1911, in my opinion, is not necessary to entitle one, who is otherwise qualified, to vote in the special election or the primary election, for the reason that the provisions of the Constitution above quoted only disqualify a person who has failed to pay those taxes which he has "had an opportunity of paying agreeably to law,'; and which have been "required of him." I do not think that one has had the opportunity of paying his taxes agreeably to law, nor have they been required of him in contemplation of law, until the full time has elapsed in which he may pay before the tax collector is authorized to issue an execution ~herefor. The tax collectors cannot issue executions before the 20th day of December of each year. The registration books will close within five days after your Excellency promulgates your order for the election, and the opportunity to register is shut off before

34

ATTORNEY-GENERAL's REPORT

the full period of time has elapsed in which the taxes for the present year may be paid, and before the same are required to be paid by law. It will be noticed that the date of the order which calls the election is what determines the time for the closing of the registration books, and not the time when the election is ordered to be held.
(3) Under the law those who are qualified to vote at the special election are also qualified to vote at the primary election. The same lists will be used at both elections. The time when the special election is fixed will not effect, in any manner, the registration of voters either for the special election or for the primary election, for the reason, as above stated, it is the call of the election which closes the registration books and not the time when the election is to be held.
(4) The time of the holding of the special election only effects the voters in the two elections in regard to the payment of their back taxes; that is to say, those taxes required to be paid six months before the date of the special election. The registrars in purging the lists of this class of names will count back six months from the date when the special election is to be held and strike those who have not complied with the Constitutional requirement in this regard.
I suggest to your Excellency that in view of the fact that the primary has been fixed for December 7th, you should issue your proclam~~i~!! ordering the special election with the view of giving the officers full time in .which to perform their duties before the date of the primary. You will observe that the tax collectors are allowed to keep their books open

ATTORNEY-GENERAL's REPORT

3'5

five days after your proc1ama,tion is issued, then another five days are given them in which to prepare a list of voters, and then five days additional are given the registrars to perform their duties. While the law provides that tax collectors shall "within five days'' close the registration books it is the policy of the law that full opportunity should be given to register, and, in my opinion, the tax collectors should keep their books open the full time allowed by law.
Trusting the above answers your questions, I beg to remain,
Most respectfully yours,
T. s. FELDER,
Attorney-General.

December 6, 1911.
HoN. JoHN M. SLATON, Governor, State Capitol.
Dear Sir:Replying to an oral request made through your
Secretary, Mr. Larsen, for my opinion as to whether it is necessary that the money appropriated for the erection of a monument to the memory of General Joseph E. Johnston shall be paid from the treasury during the present year to prevent the lapsing of the same, and if the money can be legally paid from the treasury after the expiration of the present year.
The Act of August 10, 1910, making the appropriation in question, provides that said appropriation is "to become available in the year 1911." Appropriations do not revert to the general fund in the treasury until six months after the expiration of the fiscal year for which the appropriation

36

ATTORNEY-GENERAL's REPORT

is made. Civil Code, Sec. 228 (15). The fiscal year in this State commences on the 1st day of January and ends on the 31st day of December of each year. Civil Code, 231. To delay the payment of this appropriation until after the end of the present year would not, in my opinion, cause the same to lapse, and the Treasurer would be authorized to honor a warrant for the appropriation presented any time within six months after the 31st day of December, 1911.
Very truly,
s. T. FELDER,
Attorney-GeneraL

State of Georgia, Executive Department, Atlanta, Dec. 7, 1911.
HoN. T. S. FELDER, Attorney- General, Atlanta, Ga.
My Dear Sir :My attention has just been called to Section 1256
of the Code, apparently providing that bonds for State Depositories shall have either a personal bond or a dep'Osit of United States bonds, or Georgia State bonds.
The State T'reasurer informs me that a large number of bonds of State Depositories are made with Guaranty Companies as sureties on the bonds of Depositories.
Will you kindly give me your opinion in the premises, indicating whether the form of surety sug-

ATTORNEY-GENERAL's REPORT

37

gested in Section 1256 of the first Volume of the Code of 1910 is exclusive.
Very truly yours, JOHN M. SLATON,
President Senate and Acting Governor.

December 13, 1911. HoN. JoHN M. SLATON, Governor,
Capitol. Dear Sir:-
Replying to your request for my opinion as to whether Guaranty Companies may be accepted as sureties on the bonds of State Depositories.
I think Section 2551 of the Civil Code gives ample and full authority to the Governor to accept as sureties on bonds required to be given by the State Depositories those Fidelity Insurance Companies authorized under the laws of Georgia to transact business in the State.
Very truly,
T. s. FELDER,
Attorney-General.

December 12, 1911. HoN. JOHN M. SLATON, Governor,
Capitol. Dear Sir:-
I am in receipt of your letter advising me of a request received by you to draw a warrant in favor of Hon. Thomas J. Brown, Solicitor-General, on the basis of two salaries, or at the rate of $500.00 per year, which is claimed for services rendered in the Northern and Toombs circuits, and asking my opinion as to what amount should be paid him.

38

ATTORNEY-GENERAL's REPORT

The Toombs judicial circuit was created by an Act of the Legislature approved August 12, 1910. Acts 1910, p. 63. The circuit is composed of Glascock, Lincoln, Taliaferro, 'vVarren and wilkes counties, all of which were taken from the Northern circuit. The Act creates the offices of Judge and Solicitor-General for the new circuit to have the same jurisdiction, powers and salaries as the Judges and Solicitors-General of each of the other circuits of the State, but Section 3 of the Act provides:
''That the several Solicitors-General of this State, now holding office in the counties by this Act removed from their Judicial circuits, shall continue to discharge the duties of their respective offices in said counties for and during the term of their present service, and S'hall be entitled to all the fees and emoluments appertaining thereto as now provided by law.''
Mr. Brown at the time of the creation of this new circuit was, and is now, the Solicitor-General of the Northern circuit. The Legislature simply meant by this quoted section of the Act to say that Mr. Brown should continue to act as the prosecuting attorney and to get the fees incident to the office in the counties taken from his circuit until the end of the term for which he had been elected and qualified to serve as the Solicitor of the Northern circuit; at the expiration of his term the regularly elected SolicitorGeneral of the new circuit will assume the duties of the office. The Legislature evidently had the idea in mind that it would not be just to take these :five counties away from him and lessen the income of the office during the time for which he had been elected io serve in them. I do not think the General Assembly intended to elect Mr. Brown Solicitor-General of

ATTORNEY-GENERAL's REPORT

3'9

the new circuit of Toombs, even if it had the power to do so. Solicitors-General of the several circuits, under the Constitution, are elected by the people, and in certain instances appointed by the Governor. Mr. Brown has never been appointed by the Governor or elected by the people Solicitor of the Toombs circuit, and he holds but one commission, and that is as Solicitor-General for the Northern circuit. The law requires that one to be a Solicitor of a circuit must be a permanent resident therein at the time of his election or appointment. Civil Code, 4924. Mr. Brown resides, as I understand it, at Elberton, in the Northern circuit. He is therefore
not qualified to hold the office of Solicitor-General of
the rroombs circuit. The Legislature at its last session created a new
judicial circuit to be known as the Dublin circuit and composed the same of four counties taken from three different judicial circuits. Acts 1911, p. 81. There
a is section in the Act identical with Section 3 above
quoted, protecting the Solicitors-General in their fees and continuing them as prosecuting attorneys in the counties taken from their respective circuits during their terms of office. If it is held that the Act creating the Toombs circuit entitles the Solicitor-General of the Northern circuit to draw a salary as Solicitor-General of the Toombs circuit in addition to his salary as Solicitor-General of the Northern circuit, then it must be held that we have three Solicitors-General of the Dublin circuit, each entitled to draw two salaries from the State Treasury. Such in my opinion was not the intention of the Legislature.
I think that Mr. Brown as Solicitor-General of

40

ATTORNEY-GENERAL's REPORT

the Northern circuit discharges the duties of prosecuting attorney in the counties which have been carved out of that circuit and made to compose the Toombs circuit, for and during the time for which he was elected Solicitor-General of the Northern circuit, and is entitled to receive the fees and emoluments appertaining thereto, but he is not entitled to receive but $250.00 per annum from the State Treasury, and that sum he is entitled to receive as a salary as Solicitor-General of the Northern circuit.
Very truly,
s. T. FELDER,
Attorney-General.

October 3, 1911. HoN. PHILIP CooK,
Secretary of State, State Capitol.
Dear Sir:I am in receipt of your letter enclosing letter of
Mr. Will Gunn, attorney for the Mutual Building Loan & Land Association of Georgia, asking for my opinion if you have the authority to grant an amendment to the charter of this corporation so as to confer on it the powers and privileges of a trust company.
I note that you yourself are of the opinion that you have no authority to grant the amendment, but are referring the matter to me upon the special request of the attorney for the corporation.
I agree with you that you have no authority under the law to grant the amendment.
The Secretary of State in the granting of charters, or amendments to the same, can act only within

ATTORNEY-GENERAL's REPORT

41

the powers specifically conferred upon him by the Legislature. His jurisdiction is a limited one.
The Legislature has passed no statute authorizing the Secretary of State to engraft on banking institutions the rights and privileges of trust compan-. ies, though it has provided that trust companies may, under certain conditions, be given banking privileges. (Civil Code, 2817.)
There may have been a reason for this in the r_.egislative mind, as the minimum amount of a trust company's capital stock required to be paid in is $100,000.00, while a bank may begin to do business on the subscribing, in good faith, of $25,000..00, with $15,000.00 paid in. But whether there is any reason for it or not, the fact remains that the Legis'lature has seen fit to give to trust companies the right to do a banking business, and has seen proper not to give a banking business the right to do a trust business.
The J'!Iutual Building, Loan & Land Association of Georgia by its charter has a capital stock of $50,000.00, with the usual privilege of increasing the same. I judge it has not been increased or the fact would haYe been mentioned.
The capital stock of the corporation in question being less than that required to be paid in by trust companies, it appears to me plain that this in itself would prevent your granting the amendment proposed and giving this corporation the powers of a trust company.
Section 2197 of the Civil Code, cited by the attorney for the company, I do not think is applicable. That section provides for the amending of charters of ''any banking, insurance, railroad, canal, naviga-

42

ATTORNEY-GENERAL's REPORT

tion, express or telegraph company, heretofore Incorporated by the General Assembly by special act." The corporation in question was incorporated as a building and loan association and given special powers as a banking institution. But whether it can be termed a banking institution or not, for the reasons above given, if it is a banking institution and this section of the Code is applicable, you cannot by amendment confer on it the powers of a trust company.
The Act of 1910, page 89, cited by counsel, I do not think either is applicable, for the reason it says that it applies to charters granted by the Superior Courts of the State, and you have no right to read into the act any other class of charters.
For the reasons above stated, as well as others which might be given, I think it clear that the Secretary of State has no right to grant the amendment proposed.
Very truly, T. S. FELDER, Attorncy-0 eneral.

Comptroller-General's Office, Tax Department,
Atlanta, November 17, 1911.
RoN. T. S. FELDER,
Attorney-General, State Capitol.
Dear Sir:The last Legislature passed an ~\ct. the title of
which is:
"An Act to revise the school laws of the S.tate of
Georgia; to substitute the State Superiiltendent of Schools for the State School Commissioner; County Superintendents of Schools for County School Com-

ATTORNEY-GENERAL'S REPORT

43

missioners; to provide for the appointment of a State Board of Education, a County Board of Education, three supervisors of Schools and Institutes, and an Auditor; to prescribe their duties, powe:rs and qualifications, and to fix their salaries; to provide for a Secretary and Executive Agent of the State Board
of Education; to fLx his salary, and for other pur-
poses.''
Section 2 of that Ad provides compensation for four members of the State Board of Education, and provides for the payment of their traveling expenses coming to and returning from the State capital.
Section 6 of the act requires the State Superintendent of Schools to give a bond in the sum of $10,000 to the State of Georgia, with some approved security company, the premium charged for said bond to be paid out of the State Treasury. Section 7 provides that the State Superintendent of Schools shall be the Secretary and E!xecutive Agent of the Board of
Education and fixes a salary of $1,000 for said services. Section 9 provides for the appointment of three school supenisors by the State Superintend-
ent of Schools, with the consent and approval of the State Board of Education, and fixes the salary of said supervisors at $2,000 each per annum, and provides for the payment of their necessary traveling expenses, itemized statements of which shall b@o sworn to monthly and approved by the State Super-
intendent of Schools, to be paid out of the State
Treasury. Section 10 provides for the appointment of a competent and experienced bookkeeper and accountant at a salary of $2,000 per annum, together with his actual traveling expenses, statement of said traveling expenses to be itemized and sworn to as in
the case of supervisors, which shall not exceed $1,000 per annum.

44

ATTORNEY-GENERAL's REPORT

The State Superintendent of Schools has conferred with me, as the officer charged with the approval of all warrants drawn on the State Treasurer, in regard to the payment of the salaries and expenses provided for in the sections quoted above, and requested to be advised whether they are to be paid out of the general funds in the treasury or whether the warrants should be drawn on the school fund appropriation of $2,500,000.
The act does not appear to be clear on these points, and I am also in doubt as to whether or not the Act carries with it appropriations for the pur poses set out in the caption. Please let me have your official ruling on these points.
Very respectfully,
WM. L~. \RIGHTT,
Comptroller-General.

November 28, 1911. HoN. WM. A. WRIGHT,
Comptroller-General, State Capitol.
Dear Sir:I have your letter of the 17th inst. and note your
questions as to the payment of the salaries of the officers created by the new school law and the expenses which you mention.
These salaries and expenses must be paid out of the fund in the treasury set apart to the common schools or not be paid at all under the law as it now stands. The act in question does not carry an appropriation, nor was the measure treated by the House as an appropriation bill. The bill was not considered in the committee of the whole, as is pro-

ATTORNEY-GENERAL's REPORT

45

vided by the rules of the House in all proceedings touching the appropriating of money, nor were the yeas and nays of the House taken and recorded on its passage as the Constitution requires to be done on bills carrying appropriations. If we construe the act to direct that the salaries and expenses you mention shall be paid out of the general fund in the treasury, and not out of the Educational fund, then the result would be that the new school law must fall. or at least be held in abeyance until the Legislature can meet and make the appropriation necessary to put the law in operation. vVe should not put a constr,uction on the law which would defeat the will of the Legisiature if it can be avoided.
So I take it to have been the intention of the Legislature that the salaries and expenses mentioned should be paid by Executive warrants drawn on the Treasury and paid out of the appropriation there held to the credit of the common school fund. If the Legislature intended the payment to be made otherwise, the proper appropriation can and doubtless will be made when it reconvenes, and the money returned to the common school fund.
Very truly,
s. T. FELDER,
Attorney-General.

December 1, 1911. HoN. WM. A. WRIGHT,
Comptroller-General, State Capitol.
Dear Sir:RepJying to your Jetter of the 17th ult., wherein
you ask my official opinion if you are authorized to

46

ATTORNEY-GENERAL's REPORT

approve a warrant which has been presented to you drawn on the State Treasury in favor of the State Game and Fish Commissioner in payment of his salary for the months of September and October of the present year.
The Constitution of the State declares that "no money shall be drawn from the Treasury except by appropriation made by law." Art. 3, Sec. 7, Par. 11. It, alS'o, declares that "No bill or resolution appropriating money shall become a law, unless upon its passage the yeas and nays, in each house, are recorded." Art. 3, Sec. 7, Par. 12.
These provisions of the Constitution make it plain that no fund when it has once reached the treasury can be taken therefrom except by a specific appropriation made by the General Assembly, and to make a legal appropriation the two bodies of the General Assembly mus.t take and record in their respective Journals, when such measure is put upon its passage, the votes by yeas and nays.
No matter how just a claim may be against the State one cannot demand payment at the hands .of the Treasurer unless he shows an appropriation made by law for the payment of his Claim.
. The Act approved August 21, 1911, creating the Department of Game and Fish provides that certain parts of the :fines, forfeitures and penalties collected in prosecutions under the act, and the monies received from the sale of licenses shall be deposited in the treasury and constitute a fund to be known as the game protection fund and be devoted to the payment of the salary of the commissioner, his necessary incidental expenses and the salaries of the wardens appointed under the act. This designates and

ATTORNEY-GENERAL'S REPORT

47

sets apart in the treasury these funds for the payment of the salaries named, but under our Constitution it takes more than the designating and setting apart of a fund in the Treasury to make a legal appropriation. When the bill creating this new department was before the house it was not considered by that body as carrying an appropriation. The usual procedure is, and indeed it is a rule of the House, that all proceedings touching an appropriation shall be considered in the committee of the whole. This bill was not considered in the committee of the whole by the House, nor were the yeas and nays there recorded on the Journal, as is required by the Constitutional provision above quoted when measures carrying an appropriation are put upon passage.
It is. my opinion, therefore, that there has not been any appropriation made by the General Assembly to pay the salaries provided for in the new game and fish act, and that before said salaries can be paid additional legislation will be required. As the Treasurer is not authorized to pay the warrant presented for your approval, you are, consequently, not authorized to approve the same.
Very truly, T. S. FELDER, Attorney-General.

December 18, 1911.
RoN. vVl\r. A. WRIGHT, Comptroller-General, State Capitol.
Dear Sir:Replying to your letter of the 9th inst. in which

48

ATTORNEY-GENERAL's REPORT

you ask my opinion if you are authorized to issne licenses to corporations to act as agents of insurance companies in this State. I note from your letter that you have been for the past seven or eight years issuing to corporations such licenses under the advice of the Attorney-General. This long practise of your Department would in itself seem to justify the continuance, rather than to abruptly change the same, thus tending to make the law unstable, and, possibly doing an injustice and damage to those corporations who have organized and are doing this class of business under the ruling of the taxing department of the State for these many years. But independently of this, I think you are justified and should issue to corporations licenses to act as agents of insurance companies, where their charters empower them to so act, and where they otherwise conform to the law. No reason suggests itself to my
mind why a corporation, empowered by its charter, to do so, should not act as an agent for an insurance company. Corporations are amenable to our criminal as well as our civil laws, and a corporation violating any of the tax laws may be punished as effectually as a natural person may be who violates the same law. Southern Ry. Co. vs. The State, 125 Ga. 287. Civil Code 2443, which is taken from the Act approved August 24, 1887, gives a definition of an insurance agent. It says: any "person" doing the things mentioned in the section shall be held to be the agent of the company. There are two kinds of ''persons,'' natural and artificial. A corporation is an artificial person. Civil Code, Sections 2159 and 2188. When the word person is used in a statute, unless a different meaning is apparent from the

ATTORNEY-GENERAL's REPORT

49

context, it includes a corporation. Civil Code, Section 5. The sections of the General Tax Act of 1910, which immediately apply to the questions before us, and which are now contained in Sections 935, 93'6 and 937 of the Civil Code, fix upon every insur~ ance agent doing business in this State a certain tax prescribed in the several sections cited. Corporations having the right to act as agents of insurance companies, where their charters permit them to do so, should, of course, pay the same license tax to the State that a person or firm would pay. If corporations were exempted from this tax the statute would be unconstitutional and void, granting that corporations have the right to act as agents for insurance companies. ''The Legislature has absolutely no power to classify persons, natural or artificial, engaged in precisely the same occupation, laying a tax upon some of them and exempting others, or imposing a tax not operating uniformly upon all.'' Singer Mfg. Co. vs. Wright, 97 Ga. 120.
It is, therefore, my opinion that incorporated companies, chartered for the purpose, may act as agents in this State for insurance companies, and upon complying with the law and paying the tax required are entitled to have licenses granted to them.
Very truly,
T. s. FELDER,
Attorney-General.

50

ATTORNEY-GENERAL's REPORT

HoN. WM. A. WRIGHT,

December 30, 1911.

Comptroller-General,

State Capitol.

Dear Sir:-

As I understand the question submitted by your

letter of the 21st inst., and the letter of Mr. Allen

accompanying it, it is' this: Mr. Allen's real estate

agency located at Senoia, Coweta county, has paid

the State tax of $10.00 in Coweta county, and he

takes the position that his agency can send repre-

sentatives into other counties and do business therein

without paying any further occupation tax. You

have ruled that the payment of the tax in Coweta

county does not relieve the agency of paying a like

tax in any other county in which it may send a rep-

resentative and transact business. I think you have

ruled correctly. The particular partof the tax act

involved is contained in sub-section 51 of section 2

of the general tax act of 1909, now codified in section

971 of the Civil Code. It reads as follows:

"Upon every person or firm engaged in the business of buying or selling real estate on commission, or as agents renting real estate, the sum of ten dollars for each county in which he or they may conduct said business.''

There is no particular significance in the words

''conduct business.'' They are synonymous with

''carry on business,'' and ''do business.'' If the

agency referred to sends a representative into a

county other than Coweta and buys or sells real

estate on commission or acts as agent in renting real

estate, I think the agency will be conducting its busi-

ness therein, and that it is liable for the occupation

ATTORN:h;Y-GENERAL's REPORT

51

tax called for by the section in addition to the occu-
pation tax which it has already paid in Coweta
county, notwithstanding the agency's principal place
of business is located in Coweta c,ounty. I think this
is the unquestioned meaning of the section, and I
understand this interpretation has been put upon this
and similar provisions of the general tax act for a
long number of years by the taxing department of
the State. The Supreme Court in discussing the
general tax act and the various expressions used
therein to describe the territory and places the par-
ticular license tax covers, in the case of Smith vR.
The State, 109 Ga. 227, say:
''An examination of the succeeding paragraphs of thrs section will likewise show that tbe General Assembly evidently had under consideration the expediency, in given instances, of levyi11g a tax for each county, for each town or city, or for the whole territory of the State generally, and took especial pains to expressly prescribe the precise locality which each _particular license tax should refer to and cover."
Very truly,
s. T. FELDER,
Attorney-General.

December 29, 1911. HoN. THOMAS G. HunsoN,
Commissioner of Agriculture, State Capitol.
Dear Sir:Replying to your letter of the 20th inst., in which
you ask my opinion if the Act passed by the General Assembly at its last session creating the Department of Game and Fish repeals in whole or in part the act of 1876, and the acts amendatory thereof, which

52

ATTORNEY-GENERAL's REPORT

authorized the Commissioner of Agriculture to em-ploy a superintendent of :fisheries and to appoint fish wardens in certain counties.
The act approved August 29, 1876, and the amending act approved October 16, 1885, are contained in sections 2085 to 2091, both inclusive, of the Civil Code. Section 2085 provides that the Commissioner of Agriculture shall have especially in charge the propagation of migratory fish in the wafers of the State, and authorizes him to employ a superintendent of :fisheries who, under the direction of the Commissioner, shall ha:ve charge of the propagation of :fish. Section 2090 authorizes the Commissioner to appoint, in such counties as he may deem expedient, one or more :fish wardens whose duty it shall be to encourage the propagation of fish. These wardens are given the power of arrest for violations of certain provisions of the Act of 1876, and as compensation are allowed one-half of the :fines and forfeitures paid by the violators.
The Act approved August 21, 1911, established a new department for the State to be known as the Department of Game and Fish and placed it in charge of the State Game and Fish Commissioner. It is made the duty of this officer, by Section 4 of the Act, "to see that the laws now and hereafter enacted for the protection, propagation, and preservation of game animals, game birds and other birds, and fish in this State are observed, and that violations of said laws are promptly and speedily prosecuted.'' He is required by Section 5 of the act to ''appoint Game and Fish Wardens and Deputy Wardens in each county of this State," and such wardens and deputy wardens are required to enforce ''all the provisions

ATTORNEY-GENERAL's REPORT

53

of this Act and all other laws in reference to game and fish in their respective counties.'' Section 24 of the act provides that ''the Game Commissioner and Wardens shall see that the laws pertaining to fish are rigidly enforced.''
I think it is clear from the terms of this new act that there was a legislative intent to cover the subject matter of the old acts mentioned as to the duty of the Commissioner of Agriculture in regard to the propagation of fish and the appointment of the officers named in the old law, and that the Legislature intended that this new law should be substituted for the prior law in these particulars. Indeed the new act appears to be exhaustive of the subject of the appointment of game and fish officers for the State and their duties and compensation.
Our Court of Appeals has lately had under review this new game and fish act and at the close of their opinion they say:
''this general act, establishing the department of game and fish for the State of Georgia, was intended to be exhanshve of the subject matter, and was manifestly intended by the Legislature to repeal all general or special or local laws on the same subject matter.''
(Hammond vs. The State, 72 S. E. 937, decided Novern ber 20, 1911.)
I am, therefore, of the opinion that the act of August 21, 1911, creating the Department of Game and Fish relieves the Commissioner of Agriculture of the duty heretofore imposed on him in regard to the propagation of fish and places this duty on the Commissioner of Game and Fish, and that the offices of superintendent of fisheries and fish wardens, as existing under the old Jaw, are abolished, and that

54

ATTORNEY-GENERAL'S REPORT

these offices ceased to exist on the first day of September, 1911, the date on which, under the new act, the Game and Fish Commissioner assumed the duties of his office.
Very truly, T. S. FELDER, Attorney-General.

September 27, 1911. RoN. M. L. BRITTAIN,
State Superintendent of Schools, State Capitol.
Dear Sir:Replying to your inquiry, "May the State De-
partment of Education ask for bids on printing or is it required by law to give work of this kind to the State printer."
The Secretary of State, the Comptroller-General and the Treasurer are made by law commissioners of public printing. These commissioners are required, every two years, to advertise for sealed proposals "to do all the public printing for the State," after advertising the length of time prescribed by law they award to the lowest and best bidder ''all the public printing for the State of Georgia, including all the printed matter used by the various departments of the State or any branches thereof.'' (Civil Code, 13'39.)
The bids for the public printing are required to be submitted in writing with certain specifications, which are prescribed in detail in Section 1342 of the Civil Code. The printer, when he contracts with the State, contracts to do all that class of work contained in the specifications set forth in this section, and the

ATTORNEY-GENERAL's REPORT

55

State obligates itself to give to him all this class of
work at the contract price made.
Section 1341 of the Civil Code is in the following
language:
''Printing for departments. When the public printing is awarded as herein provided, the various departments of the State, and all branches thereof, shall, through their proper officers, make requisition upon the commissioners of public printing for all printed matter needed in their various departments, and upon receipt of such requisitions the commissioners of public printing shall supply said departments with such printed matter as they may need, from time to time.''
All the printing which is needed for your depart-
ment, that comes within the contract of the State
printer, must be done by him through requisition by
you upon the commissioners of public printing.
Very truly,
T. S. FELDER,
Attorney-General.

August 9, 1911. MR. R. E. DAVIDSON,
Chairman of Prison Commission, State Capitol.
Dear Sir:Replying to your letter of this date asking my
opinion upon the question submitted in a letter addressed to the Commission by Oscar Lott, a paroled convict. As I gather from his letter he wishes to know whether or not he should respond to a summons for road duty in Hall county, being in doubt as to whether or not it would be a violation of his parole should he leave his present employer to work

56

ATTORNEY-GENERAL'S REPORT

the five days required by law on the public roads. You ask in your letter if a paroled convict is required to work on the public highways.
All male inhabitants of this State between certain ages, who are not specially excepted by statute, are subject to work on public roads, and a paroled convict is not within the exceptions. It would be no violation of Oscar Lott's parole for him to respond to the ca11 of the authorities of Hall county for road duty. He is of course, as a paroled convict, in the legal custody of the Prison Commission, and the Commission can if it desires prohibit him from doing this class of work, but in my opinion it would be neither proper nor good policy for the Commission to take any such position. The object of the parole is to test the prisoner and give him an opportunity to beeome a law-abiding citizen, and the Commission should encourage him in this direction. A good citizen will not shirk or try to avoid the road duty put on him by law.
In my opinion you should answer the letter of Oscar Lott to the effect that he should comply with the summons and report to the overseer for road duty.
Very truly,
s. T. FELDER,
Attorney-General.

October 2, 1911.
HoN. J. E. MERCER,
State Game and Fish Commissioner, Fitzgerald, Ga.
Dear Sir:Replying to your inquiry if ''under the new game

ATTORNEY-GENERAL's REPORT

57

law sheriffs, United States marshals, policemen, and
other officers" are eligible to appointment to the office of county warden.
That part of Section 258 of the Civil Code which
is applicable reads as follows:
''The following persons are held and deemed ineligible to hold any civil office in this State, and the existence of either of the following state of facts is a sufficient reason for vacating any office held by such pers,on, but the acts of such person, while holding a commission, are valid as the acts of an officer de facto, viz. :
* * * * (4) Persons holding arry office of profit or trust under the government of the United States (other than that of postmaster), or of either of the several States, or of any foreign State.''
It will be seen from this Section of the Code that
United States marshals are not eligible to appoint-
ment as wardens.
The words, ''or of either of the several States,'' contained in the section I do not think includes in its
meaning the State of Georgia. I think the legisla-
tive intent was to prevent persons holding any office
of profit or trust under other governments from be-
coming officers of this State, thus dividing their al-
legiance. I do not therefore see any inhibition in the law
against your appointing State and county officers as
wardens, provided their duties a,s such officers do not
conflict with their duties as wardens. For the reasons stated above policemen are also
eligible to appointment as wardens.

58

ATTORNEY -GENERAL's REPORT

Trusting the foregoing answers your questions, I beg to remain,
Very truly,
s. T. FELDER,
Attorney-General.

RoN. J. E. MERCER,

October 21, 1911.

State Game and Fish Commissioner,

Fitzgerald, Ga.

Dear Sir:-

Answering your letter of the 20th inst., in which

you propound the following questionl!l:

First. "Section 6 provides a license of $15.00 for non-residents, and then near the end of that section provides that a person may hunt and :fish on his own land without a license; is it my duty to require from non-residents who own land in this State the payment of the sum of $15.00 for the privilege of hunting on their lands~''
Second. ''Again, Section 18 provides an exception for persons 'following hounds in pursuit of foxes or deer, or any other animal not mentioned in this act.' The comma after deer is confusing. I would be glad to have you say whether the act means that a person may follow hounds in pursuit of any animal except squirrels upon the lands of another without his consent or was it the intention of the law makers to permit the hunting of all other animals except deer and squirrel on the lands of another without the consent of the land owned"

Section 6 of the act deals with the granting of

licenses both to residents and non-residents of the

State. The section contains this provision, ''A per-

son may hunt and fish in the open season in his own

militia district, or on his own land without a license.''

The first part of this sentence, as separated by the

ATTORNEY-GENERAL's REPORT

59

comma, can, of course, refer only to residents of the State, but the last part makes no distinction and includes both residents and non-residents. It is my opinion, therefore, that a non-resident of Georgia who owns land in the State may hunt upon his own land without the payment of any fee or the obtaining of any license. This construction is borne out by Section 18 of the act fixing the penalties for violations of the statute; it providing that ''Any person who shall hunt, without first obtaining a license, except on his own land, etc., shall be guilty of a misdemeanor,'' no distinction being made between residents and non-residents.
In answer to your second inquiry, it is my opinion that the part of Section 18 which you refer to means that a hunter may follow foxes', deer and other animals, except squirrels, on the land of another when he is in actual pursuit of the same; that is to say, when he has "jumped" the animal and is chasing it. We must construe Section 18 in connection with the other sections of the act. Section 7 provides that ''No person shall hunt or fish upon the lands of another with or without a license, without first having obtained permission from such land owner.'' I think it was the intention of the Legislature to prevent hunting of any character upon the lands of another where consent of the owner has not been obtained, except in cases where the hunter comes within the exception above stated.
T'rusting the above answers your questions, I beg Jo remain,
Sincerely yours,
s. T. FELDER,
Attorney-GeneraL