REPORT AND OPINIONS
OF THE
ATTORNEY GENERAL
OF
GEORGIA
FOR THE YEAR 1912.
THOMAS S. FELDER
Attorney General.
ATLANTA, GA. CHAS. P. BYRD, State Printer.
1913.

STATE OF GEORGIA
ATTORNEY GENERAL'S OFFICE
ATLANTA.
To His Excellency, JosEPH M. BRoWN, Governor:
DEAR Sm: I have the honor to submit the followingreport of the business of the Attorney General's office during- the year ending- December 31st, 1912, as required by law.
I append hereto such written opinions rendered during- the year as it appears desirable to make a part of the report for the purpose of publication.
T'he following- is a list of the civil cases orig-inating in 1912, with a brief statement of the nature and status of each:
STATE OF GEORGIA VS. ATHENS TRUST AND BANKING COMPANY.
On ],ebruary 22nd, 1912, I was directed by your Excellency to institute appropriate proceedings to have a receiver appointed to take charg-e of the affairs of the Athens Trust & Banking- Company, of Athens, Georg-ia, for the purpose of winding up its business, the institution having- been examined and reported insolvent by the State Bank Examiner, and on the same day I presented a petition for a receiver to Hon. Georg-e L. Bell,
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Judge of the Superior Court of the Atlanta Circuit, the Hon. Charles H. Brand, .Judge of the Superior Courts of the Western Circuit, being absent from his circuit and without the 'State. .Judge Bell appointed Mr. Frank A. Lipscomb, of Athens, temporary receiver and assigned the hearing for a pe-rmanent receiver for the 8th of April before .Judge Brand. At the hearing no objection was made by the defendant to the appointment of a receiver and Messrs. Frank A. Lipscomb and E. Guy Barnett were named by .Judge Brand as permanent receivers. Mr. Lipscomb declined the appointment and Thomas F. Green, Esq., was named in his stead.
The affairs of the institution are now being wound up by the Superior Court of Clarke County under this receivership.
STATE OF GEORGIA VS. CITIZENS TRUST COMPANY.
On the 2nd day of August, 1912, I was instructed by your Excellency to file appropriate proceedings to place the Citizens Trust Company, of Augusta, Georgia, in the custody of a receiver for the purpose of winding up its affairs, the institution having been examined and re-ported insolvent by the State Bank Examiner, and I was, also, directed by your Excellency to bring proceedings against the company for a forfeiture of its charter.
I filed a petition for these purposes in the Superior Court of Richmond County on August 5th, 1912, and the Hon. Henry C. Hammond, Judge of the Augusta Circuit, appointed Mr. James P. Armstrong permanent receiver.
There were two other peti6ons for a rece~ver entertained by the court at the same time the State's petition was heard, and a general order ,appointing the receiver was entered.
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T'he business of the institution is now in process of liquidation under the receivership.
SOUTHERN COLLEGE OF MEDICINE & SURGERY ET AL., VS. STATE BOARD OF' MEDICAL EXAMINERS, ET. AL.
The Routhern College of Medicine and Surgery, of Atlanta, Georgia, and certain of its graduates, filed a petition in Cobb Superior Court on the 16th day of May, 1912, for a writ of mandamus to issue to compel Dr. C. T. Nolan and others compo~ing the 'Rtate Board of -Medical Examiners for the Regular School of Medicine to recognize the graduates of this college and to grant to them certificates to practice medicine and surgery within the State, provided they passed a satisfactory examination as to their proficiency.
A demurrer and an answer were filed for the defendants.
The defense was made that the graduates of the college were not entitled to recognition for the reason that the law of the State had not been complied with in certain particulars by the college.
The case was carried to the Supreme Court by the plaintiffs upon the refusal of court to sustain a general demurrer to the answer. The Supreme Court held that the writ of error had been prematurely brought and refused to decide the question made. (138 Ga. 724).
The case was called for a hearing upon its merits at the November term of Cobb Superior Court and was, upon motion of counsel for the defendants, dismissed for want of prosecution.
D. W. Blair, Esq., of Marietta, Georgia, by special appointment of your ExcelJency represented the Board of Medical Examiners and had entire charge of 1:he defense.
5

CYCLE OF .EQUITY VS. WILLIAM A. WRIGHT, COMPTROLLER GENERAL.
On May 6th, 1912, the Cycle of Equity filed its petition in the Superior Court of Fulton County against Wm. A. Wright, Comptroller General, in which it prayed that a writ of mandamus issue to compel him as Insurance Commissioner to issue to it a permit to do a fraternal insurance business in the State for the year 1912.
Answer was duly filed for the Insurance Commissioner, the defense being that the plaintiff was not entitled to a 'certificate to do bus'iness in the State, it not having qualified itself under the law in certain particulars.
The case is pending.
WILLIAM A. WRIGHT, INSURANCE COMMISSIONER, VS. NATIONAL ASSURANCE COMPANY..
On October 21st, 1912, I filed in the Superior Court of Fulton County the petition of Wm. A. "\Vright, Insurance Commissioner, against the National Assurance Company, which was at that time conducting the business of Industrial Life Insurance in the State of Georgia with its principal office in Atlanta. The petition was filed by direction of the Insurance Commissioner under the Act approved August 19th, 1912, creating the new insurance department of the State. It alleged that the company, upon examination by the Insurance Commissioner, had been found to be insolvent and in such condition that its further transaction of business would be hazardous to its policy holders, its creditors and the general public; that its property should be placed in the custody of the Insurance Commissioner and its business liquidated.
At the time the petition of the Insurance Commis-
6

sioner was filed there was pending in said court the petition of Max Spiegel and others alleging themselves to be creditors of said company, charging its insolvency and praying for the appointment of a receiver by the court
to wind up its affairs. The two petitions were heard at
the same time by Judge J. T. Pendleton and a receiver was by him appointed to take charge of the assets of the company and liquidate its business.
STATE OF GEORGIA VS. GEORGIA RAILWAY & POWER COMPANY.
The General Assembly at its session l,ast held passed the following resolution:
''Whereas, it is believed by many citizens of this State that the State of Georgia has substantial rights in and to 'l'allulah River and to Tallulah Falls and certain lands adjacent thereto, and that said lands have never heen surveyed and so not legally granted by the State; and,
~Whereas, it is the sense of the General A ssembly that the interests of the State in said property should be ascertained and fully protected.
Therefore, be it resolved by the Senate, the House concurring, 'l'hat the Governor be, and he is hereby, directed to instruct the Attorney General to bring such proceedings in the Courts of this State as will determine the rights of the State in the premises, and recover any land to which the State has title, and to protect the State's rights therein.
Be it further resolved, rn1at the- Governor is authorized and requested to permit the co-opemtion of the Tallulah Falls Conservation and Parking Association in ascertaining the rights of the State in said property, but no compensation is to be paid said Association or its Attorneys by the Governor." (Approved August 17th, 1912).
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Your Excellency having given the instructions required I on Novem:ber 16th, 1912, filed to the February term of Rabun Superior Court the petition of the State of Georgia against the Georgia Railway & Power Company to recover of said company the lands mentioned in the resolution. The land sued for is a single tract divided by the line between the counties of Rabun and Habersham and the Superior Court of either of these counties had jurisdiction of the cause. The suit was brought in Rabun because it was first to hold a term of the court after the passage of the resolution.
Messrs. Watkins & Latimer, R. C. Ellis, F. C. Foster, H. S. White, W. R. Little, .J. H. Felker and Chas. G. Reynolds joined with me as attorneys in the bringing of the suit, they having been named for this purpose under the authority given by the r'esolution.
The defendant company has filed a demurrer and an answer to the State's petition, and the 'State has demurred to the defendant's answer.
WILLIAM A. WRIGHT, INSURANCE COMMISSIONER, VS. COSMOPOLITAN LIFE INSURANCE COMPANY.
On the 9th day of November, 1912, by direction of the Insurance Commissioner, I filed in the Superior Court of ]1~ulton Com1ty a petition to have the assets of the Cosmopolitan Life Insurance Company placed in the custody and control of the Insurance Commissioner for the purpose of winding up its affairs and liquidating its business. T'his company was then doing a life insurance business with its home office in Atlanta. The petition was filed under the Act of 1912 creating the new insuranee department. An order was duly passed by Judge Bell direding- that the business of the company be liqui-
8

dated by and under the direction of the Insurance Commissioner, and the assets of the company were taken into his custody and its business is now in process of liquidation.
STATE OF GEORGIA VS. WESTERN UNION TELEGRAPH COMPANY.
rrhis suit arose out of an effort of the Western Union Telegraph Company to condemn in perpetuity the right of way of the"\estern & Atlantic Railroad from AtJanta to the Tenness'ee line for the use of its telegraph poles. The telegraph company first made an offer in writing to the Governor of five dollars per mile per post of the right of way proposed to be occupied by it, and upon the refusal of the Governor to recognize the right of said company to acquire a right of way over these lands of the State, without the consent of the General Assembly, the company served notice upon the Governor and the Attorney General of its intention to condemn the right of way for the purposes mentioned and to make the State a party to condemnation proceedings then pending against the lessee of the railroad in which it was sought by the telegraph company to condemn the right of way during the period of the lease.
Your Excellency having instructed me to take such legal action as was necessary to preserve and protect the rights of the State I filed on December 31st, 1912, in the Superior Court of Fulton County, a petition for an injunction against the Western Union Telegraph Company from making the State a party to the condemnation pro-
ceedings referred to and from seeking in any way to
condemn the right of way of said railroad beyond the term of the present lease. A temporary restraining order was entered on said petition, and the case is now pending on the prayer for a permanent injunction.
9

UNITED CIGAR STORES COMPANY VS. A. P. STEWART, TAX COLLECTOR OF FULTON COUNTY.
The United Cigar Stores Company on October 19th, 1912, filed its petition in the 'Superior Court of Fulton County against A. P. Stewart, Tax Collector of said county, for an injunction against the collection of an execution which had been issued against it for an occupation tax of Two Hundred Dollars due by it for conducting a retail tobacco business in the City of Atlanta, in the conduct of which business it distributed and redeemed certain labels of coupons given with its tobacco sales. rrhe injunction is sought upon the ground that the tax levied is illegal and void as in violation of the State and Federal Constitutions in that it is an improper regulation of its business, the giving and redeeming of the coupons it is claimed being only incident to its business. The State filed a demurrer and answer to the petition. The case is now pending.
TAX ARBITRATION.
The Sea:board ~ir Line Railway returned its properties, tangible and intangible, to the Comptroller General for taxes for 1912 at a value of $10,842,:349. The return was rejected and the properties were assessed by the Comptroller General at $13,140,908. This assessment being unsatisfactory to the railway, arbitration was called for by it under the statute, and the arbitrators named by the Comptrol1er General and the railway being unable to agree upon an umpire, the Governor appointed Ron. C. M. Candler, Chairman of the Railroad Commission, and Ron. A. T. ~Woodward to act as arbitrators with Ron. T. A. Hammond, who had been named by the railway as its arbitrator. This board, after a hearing
10

lasting several days, made an award fixing the value of the properties of the railway for taxes for 1912 at $12,654,063. I represented the interest of the State at the hearings before the board.
The following cases involving capital crimes have been heard by the :Supreme Court of Georgia during the year, in all of which I have appeared and represented the State, as required by the Constitution:
Hezekiah Stephens vs. State. Murder. From Clarke Superior Court. ~Sentence, death. Argued January 15th, 1912. Affirmed February 13th, 1912.
At Dickens vs. State. From ~Walton County. Murder. Sentence, life imprisonment. Argued Jan. 15th, 1912. Affirmed Feb. 13th, 1912.
Spurgeon McLendon vs. State. From Dooly County. ~furder. Sentence, life imprisonment. Argued Feb. 19th, 1912. Affirmed March 12th, 1912.
L. B. Buchanan vs. State. F'rom Heard County. Rape. Sentence, fifteen years. Argued Feb. 19th, 1912. Affirmed March 12th, 1912.
Virge Josey vs. State. From Pike County. Murder. Sentence, life imprisonment. Argued Feb. 19th, 1912. Affirmed March 12th, 1912.
Henry Cargile vs. State. From Fayette County. Murder. 'Sentence, life imprisonment. Argued Feb. 19th, 1912. Affirmed March 14th, 1912.
W. B. Norton vs. State. From Bibb County. Murder. Sentence, life imprisonment. Argued Feb. 19th, 1912. Affirmed March 14th, 1912. Re-hearing denied April 12th, 1912.
11

Tom McCrary vs. State. From Crisp County. Murder. Sentence, death. Argued Feb. 24th, 1912. Affirmed March 14th, 1912.
Tom T'riee vs. State. From Elbert County. Murder. Sentence, life imprisonment. Argued Feb. 20th, 1912. Affirmed March 13th, 1912.
Chas. Gibbons vs. State. From Jefferson Oounty. 2\l[urder. Sentence, death. Argued Feb. 20th, 1912. Affirmed March 13th, 1912.
Oliver Simmons vs. State. From Bibb County. Murder. Sentence,, death. Dismissed for want of prosecution March 15th, 1912.
Bud Mitchell vs. State. From Sumter County. Murder. Sentence, life imprisonment. Argued March 18th, 1912. Affirmed April 9th, 1912.
Jack Shealy vs. State. From Fulton County. Murder. Sentence, life imprisonment. Argued March 18th, 1912. Affirmed April 9th, 1912.
Lucky Elliott vs. State. From Fulton County. Murder. ~Sentence, life imprisonment. Argued March 18th, 1912. Affirmed April 9th, 1912.
Henry Scott vs. State. From Bryan County. Murder. Sentence, life imprisonment. Argued March 18th, 1912. Affirmed April 9th, 1912.
8. rr'. Jones vs. Sta~e. From Upson County. Rape.
Sentence, ten years. Argued April 15th, 1912. Affirmed May 14th, 1912.
J. W. Worley vs. State. From Chatham County. Murder. Sentence, life imprisonment. Argued April 15th, 1912. Reversed June 13th, 1912.
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Elijah Simmons vs. State. From Bryan County. Murder. S.entence, life imprisonment. Argued April 15th, 1912. Affirmed May 14th, 1912.
Aus Toliver vs. State. From Miller Oounty. Murder. Sentence, death. Argued April 15th, 1912. Affirmed May 14th, 1912.
Johnson Webb vs. State. From E.arly County. Murder. Sentence, death. Argued April 17th, 1912. Affirmed May 14th, 1912.
vVebb Gibson vs. State. From Early County. Murder. Sentence, death. Dismissed for want of prosecution April 15th, 1912.
Van Sims vs. State. From Early County. Murder. Sentence, life imprisonment. Argued May 20th, 1912. Affirmed June 12th, 1912.
Robert Johnson vs. State. From Fullton Go$ty. Murder. Sentence, life imprisonment. Atrgued May 20th, 1912. Reversed .June 12th, 1912.
Jesse Beach vs. State. From Chatham County. Murder. Sentence, life imprisonment. Argued May 20th, 1912. Reversed June 12th, 1912.
U. L. Starnes vs. St,ate. Murder. From Floyd County. Argued May 20th, 1912. Dismissed bill of exceptions as prematurely brought June 13th, 1912.
Will Thompson vs. State. From Jefferson County. Murder. S.entence, death. Argued May 20th, 19,12. Reversed with directions, June 12th, 1912.
John Hegwood vs. State. From Habersham County. Murder. Sentence, death. Argued May 2oth, 1912. Affirmed June 12th, 1912.
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Geneml Washington vs. State. From Laurens County. Rape. Sentence, eight years. Argued June 17th, 1912. Reversed August lOth, 1912.
Ed Powers vs. State. From Morgan County. Rape. Sentence, twenty years. Argued June 17th, 1912. Affirm. ed August 19th, 1912.
W. J. McNaughton vs. State. Emanuel County. Murder. Extraordinary motion for new trial. Argued June 17th, 1912. Affirmed July 11th, 1912.
Wiley Bird vs. State. From Toombs County. Murder. Sentence, life imprisonment. Argued June 17th, 1912. Affirmed July 11th, 1912.
Oscar, alias Os, Clyde vs. State. From Bibb County. Murder. Sentence, death. Argued June 17th, 1912. Affirmed October 15th, 1912.
Jim Kimbrell vs. State. From Newton County. Murder. Sentence, death. Argued June 17th, 1912. Affirmed July 11th, 1912.
Jack Baldwin vs. State. From Stewart County. Murder. Sentence, death. Argued ,June 17th, 1912. Affirmed ,July 9th, 1912.
M1ack Embrey vs. State. From Laurens County. Murder. Sentence, death. Argued July 15th, 1912. Reversed Aug. 13th, 1912.
Steve Tompkins vs. State. From Laurens County. Murder. Sentence, death. Argued July 15th, 1912. Reversed August 13th, 1912.
J. E. Brazzell vs. State. Richmond County. Murder. Sentence, death. Dismissed for want of prosecution Oct. 21st, 1912.
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J. C. Turner vs. State. ]~rom Butts County. Murder. Sentence, life imprisonment. Argued Oct. 21st, 1912. Affirmed Nov. 13th, 1912.
Johnnie B. ,Jones vs. State. From Bibb County. Murder. Sentence, life imprisonment. Argued Oct. 21st, 1912. Reversed Dec. 11th, 1912.
Garfield Jones vs. State. IProm Lowndes County. Rape. Sentenced to term of years. Argued Oct. 21st, 1912. Affirmed Nov. 13th, 1912.
J. vV. Brown vs. State. :B'rom Pulaski County. Rape.
Sentenced to term of years. Argued Oct. 21st, 1912. Affirmed Nov. 13th, 1912.
George Marshman vs. State. Murder. From Colquitt County. Sentence, life imprisonment. Argued Oct. 21st, 1912. Affirmed Nov. 13th, 1912.
John Philips vs. State. From 'rift County. Murder. Sentence, death. Argued Oct. 21st, 1912. Affirmed Nov. 13th, 1912.
Sol Roberts vs. State. From Screven County. Murder. Sentence, life imprisonment. Argued Oct. 21st, 1912. Affirmed Nov. 13th, 1912.
Henry Durham vs. State. From Greene County. Murder. 1Sentence, life imprisonment. Argued Oct. 21st, 1912. Affirmed Nov. 13th, 1912.
Allen Lindsay vs. State. From Glynn County. Murder. Sentence, life imprisonment. Argued Oct. 21st, 1912. Affirmed Nov. 13th, 1912.
Solomon Williams vs. State. From Chatham County. Murder. Sentence, death. Argued Oct. 21st, 1912. Affirmed Nov. 13th, 1912.
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Henry Taylor vs. S1 tate. From Baldwin County. Murder. Sentence, death. Argued Oct. 21st, 1912. Affirmed Nov. 13th, 1912.
Loyd Helms vs. State. F'rom Jasper County. Murder. Sentence, life imprisonment. Argued Oct. 21st, 1912. Affirmed Dec. lOth, 1912.
Charlie Owens vs. State. From Fulton County. Murder. Sentence, life imprisonment. Argued Nov. 18th, 1912. Affirmed Dec. lOth, 1912.
l'>an Burger vs. State. From Pulaski County. Rape. Sentence, sixteen years. Argued Nov. 18th, 1912. Affirmed Dec. lOth, 1912.
Harrison Ware vs. State. From Monroe County. Murder. Sentence, death. Argued Nov. 18th, 1912. Affirmed Dec. lOth, 1912.
D. H. Johnson vs. State. From Troup Oounty. Murder. Sentence, life imprisonment. Argued Nov. 18th, 1912. Affirmed Dec. lOth, 1912.
Amos Nasworthy vs. :State. From .Jenkins County. Murder. Sentence, life imprisonment. Argued Dec. 16th, 1912. Affirmed Jan. 14th, 1913.
Alex Smith vs. State. From Madison County. Murder. Sentence, life imprisonment. Argued Dec. 16th, 1912. Affirmed Jan. 14th, 1913.
The following cases I have given the history and nature of in my preceding annual report, and I only here report their present status:
STATE OF GEORGIA VS. WESTERN & ATLANTIC RAILROAD COMPANY.
The Supreme Court of Georgia, on Novemher 15th, 1912, rendered an opinion in this case affirming the judg-
16

ment of the lower court in sustaining a demurrer to the State's petition, and held that the State of Georgia is not entitled to have enforc.ed that part of its contract of lease which provides that the lessee company shall charge no greater rate per ton per mile on through freight on said road than the local rate aiJowed and fixed on similar .freights by the Railro'ad Oommission of the State for said railroad. This provision of the lease act is held by the court to be null and void as in conflict with the Commerce Clause of the Federal Constitution. The case is reported in the 138 Ga. 835.
IN THE DISTRIC'J.1 COURT OF THE UNIT'ED ST~T'EIS FOR ':PHE NOR'l'HE-RN DISTRICT OF GEORGIA.
CENTRAL OF GEORGIA RAILWAY COMPANY VS. WILLIAM A. WRIGHT, COMPTROLLER GENERAL.
This case was heard by Judge Wm. T. Newman and decided adversely to the State. The prayer of plaintiff's bill was granted and a decree entered enjoining the Comptroller General from further proceeding with the collection of the execution which had been issued by him against the pJ.aintiff for ad valorem taxes claimed to be due by it on the properties known as the Augusta & Savannah Railroad and the SouthweRtern Railroad. An appeal has been entered by the State to the Supreme Court of the United States.
IN THE DISTRICT COUR'r OF THE UNIT'ED STATES FOR, 'rHE SOUTHERN DI1STRICT OF GEORGIA.
GUSSIE SINGLETON, ALIAS GUSSIE WILLIAMS, VS. W. W. WELLS, STATE WARDEN.
The status of this case has not changed since my last report. The judge still has the case under advisement.
17

IN THE 'SUPREME COURT OF THE UNIT'En ST'A'TES.
JOE DARSEY, PLAINTIFF IN ERROR, VS. STATE OF GEORGIA.
I am advised that this case will be reached by the court for a hearing in the early part of the October Term, 1913.
. JOHN C. HART, ATTORNEY GENERAL, VS. THE NEAL BANK.
The Supreme Court of Georgia, on November 20th, 1912, rendered a decision in this ease holding that "Where a bank has made a contract with the State, whereby it agrees to pay her a certain rate of interest on daily balances on deposits in the bank belonging to the 1State, and the bank subsequently becomes insolvent and a receiver is appointed to take eharge of its assets, the State ean recover of the receiver the principal sum due her and interest at the contract rate to the date of the appointment of a receiver for the as&ets of the bank and also 7 per cent. per annum as legal interest from the date of the receivership to the date of payment.'' And that, "The State has the right of priority of payment out of the assets of an insolvent State bank which prior to insolvency was a State depository as against individual depositors and creditors." (76 S. E. 587).
Under this decision I have collected and eovered into the rr'reasury since my last report $1,390.68, this sum being the principal and interest due upon a deposit upon the books of the Nea1 Bank in the name of the Gordon Monument Commission, the principal being $859.46, interest on the daily balances at 2 per cent. per annum to the failure of the bank $71.68, and interest at the rate
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of 7 per cent. per annum from the date of the failure of the bank to the date of the payment, $459.54.
IN THE DISTRIOrr COURT OF THE UNIT'ED ST1ATEIS FOR THE NORTHERN DI~ TRICT OF GEORGIA.
LOUISVILLE & NASHVILLE RAILROAD COMPANY, AND ATLANTIC COAST LINE RAILROAD COMPANY VS. WM. A. WRIGHT, COMPTROLLER GENERAL.
This case was heard by .Judge Newman and an opinion rendered therein on .July 18th, 1912. It was held by him that the State of Georgia was not entitled to collect ad valorem taxes on the properties of the Georgia Railroad & Banking Company in the hands of the lessee companies, but that the tax exemption contained 'in 'the original charter of the Georgia Railroad & Banking Company inured to the benefit of these lessees. The court, however, held that the property in Atlanta known as tlw Joint Terminals' is subject to ad valorem taxes, the charter exemption not applying to this particular property. A decree was entered in accordance with this opinion, and was excepted to by the State and carried to the Circuit Court of Appeals ror the Fifth Circuit. Tl_1e comp}ainants, being dissatisfied with the ruling that the joint terminals were subject to ad valorem taxation, entered a cross-appeal. The Circuit Court of Alppeals affirmed the judgment of the lower court. The State then presented to the Supreme Court of the United States a petition for a writ of certiorari to review the judgment of the Circuit Court of Appeals, which petition was granted.
The case is now pending in the U. S. Supreme Court. Notice has been served on the State that a petition
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for a cross writ of certiorari will be presented on the convening of the Court in October nert.
The opinion of Judge Newman is reported in the 199 F'ed. Rep. 454, and that of the Oircuit Court of Appeals in 201 Fed. Rep. 1023.
IN THE DISTRICT COURT OF THE UNIT'ED ST:A'l,'E!S FOR 'fHE NOR'fHERN DIST'RICT OF GEOR;GIA.
WESTERN UNION TELEGRAPH COMPANY VS. WILLIAM A. WRIGHT, COMPTROLLER GENERAL. (TWO CASES).
These cases have been finally disposed of by the following decree entered therein:
''The above cases this day coming on for final decree, after considering the pleadings and the evidence reported, it is considered, ordered, adjudged and decreed as follows:
(1) 'That the rights and privile~es conferred upon complainant by the Post Roads Act of Congress, are not taxable by the State of Georgia, and are not to be included by the State or its authorities in fixing the value of franchises of complainant taxable in Georgia.
(2) 'fhat all other property owned by the complainant and located in Georgia, including franchises exercised in Georgia, except as is above enumerated, are tax'Uble in Georgia.
(3) That the Comptroller General of the State of Georgia, its proper taxing officer, in behalf of the State, and the proper officer of the complainant corporation, having agreed that during each of the years 1907, 1908, 1909, 1910, 1911 and 1912, the value of the complainant's franchises exercised in Georgia, exclusive of its rights de-
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rived from its acceptance of the afores'aid Post Roads Act, is Thr:ee Hundred and Fifty Thousand Dollars ($350,000.00), for each of said years, it is here and now ordered, adjudged and decreed that the complainant is liable to taxation for each of said years on account 'Of its franchises e:xcercised in Georgia, exclusive of its Federal franchise, and that complainant's said franchises are taxable on the basis of $350,000.00 for each of said six years, and that fi. fas. may proceed for such franchise taxes in favor of the State of Georgia and in favor of the several counties, municipalities and school districts in or through which complainant owns or operates a line of wires, for the principal sums due r~espedively to the State and the several counties and the municipal corporations and school districts, computed upon the basis of valuation afores'aid, together with interest on said several principal sums to be computed from the date said principal sums r~espectively fell due, to-wit: Dlecember 20th of each year respectively, and at the rate of 7 per cent. per annum.
(4) That so far as the fi. fas. mentioned in the pleadings are for sums of money in excess of the amounts above adjudged to be due in the third item of this decree, said fi. fas. and the assessments for taxes on which said fi. fas. are founded, and the collection of all costs on said fi. fas., are perpetually restrained and enjoined, and the respondent and his successors in office ~are further perpetually enjoined from taxing and from attempting to tax the value of the rights conferred upon complainant by its acceptance of said Post Roads Act.
(5) That neither the complainant nor the respondent have or take anything other or further than is hereby expressly provided and decreed on account of the several matters set out in the pleadings.
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(6) That the costs of court be taxed by the clerk, and be divided equally between the complainant and the respondent. October 1st, 1912. In open court. \V. T. NEWMAN, U.S. Judge." Under this decree there was collected from the Western Union Telegraph Company the sum of $33,869.83, apportioned as follows: Principal and interest due to the St,ate, $12,286.45; principal and interest due to the counties, $18,715.81; principal and interest due to school districts, $1,125.21; and principal and interest due to municipalities, $1,742.36.
IN THE SUPREME COURT OF THEt UNITED STATES.
ATLANTIC COAST LINE RAILROAD COMPANY, PLAINTIFF IN ERROR, VS. STATE OF GEORGIA.
This case, which involves the validity of the act requiring railroads to equip their locomotives with electric headlights, has been heard by the Supreme Court of the United States, but a decision has not as yet been rendered. I filed a brief in the case and also argued it in person.
IN THE >SUPREME COURT OF THE UNITED S'rATES.
GEORGE W. CURETON, PLAINTIFF IN ERROR, VS. STATE OF GEORGIA. (TWO CASES).
After these cases had been regularly heard by the U. S. Supreme Court the plaintiff in error asked leave to dismiss and withdraw them from the further consideration of the court, which request was granted.
I filed briefs in both cases and orally argued them.
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The dismissal of the cases affirms the judgment of the ~state court.
Both cases were attacks upon the prohibition law of the State.
IN THE SUPREME COURT OF THE UNITED STAT'ES.
SAMUEL LOEB, PLAINTIFF IN ERROR, VS. STATE OF GEORGIA.
This case was regula~ly reached by the U.S. Supreme Court for a hearing on the 29th day of October, 1912. On the call of the case, there being no appearance for the plaintiff in error, I moved a dismissal, whieh motion was granted.
I eolleeted from the plaintiff in error the Twenty Dollars taxed under the rules of the court as attorney's fees and covered the same into the Treasury.
This ease was also an attack upon the prohibition law of the S1 tate.
IN THE SUPREME COURT OF THE UNITED STAT'ES.
STATE OF GEORGIA, COMPLAINANT, VS. TENNESSEE COPPER COMPANY, AND THE DUCKTOWN SULPHUR, COPPER & IRON COMPANY, LTD.
'l''he agreement entered into by tlw State with the Tennessee Copper Company expires with the opening of the October Term, 1913, of the Supreme Court of the United States, and the State will then be at liberty to make such motion in the cause as it may deem advisable.
The eourt in deereeing Georgia's right to an injunetion used these words: "If the State of Georgia adheres to its determination, there is no alternative to 1ssumg
23

an injunction, after allowing a reasonable time to the defendants to complete the structures that they are now building, and the efforts that they are making to Rtop the fumes." (206 U.S. 230). This decree was rendered in May, 1907.
This department continues to receive complaints from citizens of Georgia of damage to their crops, fruits and vegetation from the gases emitted from the plants of both of these copper companies.
I think it would be proper for legislative direction to be given as to the future policy to be pursued by the State in dealing with these copper companies, as !to whether the State shall continue in its efforts to have the nuisance abated by action of the companies themselves, or appeal to the United States Supreme Court for relief.
Respectfully submitted,
s. rrHOMAS FELDER,
Attorney General.
24

OPINIONS.
STATE OF GEORGIA, ExECUTIVE DEPARTMENT,
ATLANTA.
February 6, 1912.
HoN. T. S. FELDER, Attorney General, State Capitol.
Dear Sir-On January 30, 1908, the Merchants Bank of Valdosta was appointed a State Depository. It gave a bond of $50,000, and the Tax Collectors of Lowndes, Clinch and Eichols counties were directed to deposit all money collected from State taxes not transmitted to the State Treasury direct in that bank. Its term as a State Depository expired on January 31, 1912.
On November 15, 1909, the Citizens Bank of Valdosta was appointed a State Depository under that part of the law permitting the appointment of two banks in cities of sixty-five hundred population or more. It gave a bond of $50,000, which is still in force and will continue until November 15, 1913.
As the situation now stands the officers of Lowndes, Clinch and Echols counties are without instructions as to what bank to use in depositing State funds.
The Governor directs me to ask if it will be legal for him to pass an order directing the Tax Collectors and other offi'cers of those counties to deposit State money
25

with the Citizens Bank of Valdosta, under the appointment already existing and bond previously given.
Respectfully yours, A. H. ULM,
Secretary Executive Department.
February 7, 1912.
Gov. JosEPH M. BRowN, State Capitol.
Dear Sir-Replying to your inquiry of the 6th inst., made through your Secretary, Mr. Ulm, as to the depository at Valdosta.
rrhe law requires that at the time a depository is named the Governor shall designate what tax collectors shall make their deposits therein. It appears from the Executive records that at the time the Citizens Bank of Valdosta was named as a depository no order was passed as to what funds it should receive, and at the time said bank was appointed the Merchants Bank of Valdosta was reeeiving deposits of the tax collectors of Lowndes, Clinch and Echols counties. If it is the desire of your Excellency to direet the tax collectors of these three countieS' to make deposits in the Citizens Bank of Valdosta, it is my opinion that it would be well, in order to avoid all liability of releasing the sureties on the bond, to have the written consent of each of the surities to the Citizens Bank of Valdosta acting as a ~epository for the funds of the tax collectors of those counties.
Upon inquiry at the Treasurer's office I learn that, as a -rnatter of fact, the tax collectors of the above named counties have been for Irwnths past making their deposits, either in whole or in part, in the Citizens Bank of Valdosta.
26

Under section 1252 of the Penal Code the Governor has
the power at any time to require an additional bond to
cover the amount deposited or intended to be deposited in any State depository.
Very truly,
rr. s. FELDER,
Attorney General.
STATE OF GEORGIA, EXECUTIVE DEPARTMENT,
ATLANTA.
February 6, 1912.
HoN. T. S. FELDER, Attorney General, State Capitol.
Dear Sir-On -:\fay 28, 1909, the Commercial Bank was appointed a State Depository in Savannah under that part of the law permitting the appointment of two banks in cities of sixty-five hundred population and over. It gave a bond of $25,000, but no officer was directed to make deposits therein, the funds of Chatham county having been directed to the other depository previously appointed.
On February 26, 1910, the Exchange Bank was appointed a State Depository in Savannah, succeeding the one to which the funds of Chatham county had been directed. It gave a bond of $100,000 and an order was passed directing the Tax Collecto.r of Chatham County to deposit all money collected in State taxes not paid into the Treasury direct in the Exchange Bank. The order does not include ''other officers'' of the county, as those kind of orders usually do.
The Governor is of opinion that it would be wise to
27

distribute the State'S' funds as much as possible among the various banks under bond as State Depositories. He directs me to respectfully inquire of you if, under the status set forth abov~, it would he legal for him to pass an order directing the Ordinary of Chatham County to deposit such funds as collected by him from State taxes in the Commercial Bank. At present, we are advised, he makes deposits in the Exchange Bank because the Tax Collector is under instructions to use that bank.
Respectfully yours, A. H. ULM,
Secretary Executive Department.
February 8, 19'12.
RoN. JosEPH M. BRowN, Governor, State Capitol.
Dear Sir-Answering your inquiry of the 6th inst., made through a letter of your Secretary, Mr. Ulm, as to w!hether it would be in compliance with the law for an Executive order to be passed directing the Ordinary of Chatham County to deposit the funds which he receives from near beer licenses in the Commercial Bank of Savannah rather than in the Exchange Bank of that city, the latter bank being the one in which the funds of the Tax Collector of Chatham County are deposited under an order appointing it a State Depository
I do not find any statute which would authorize the Governor to give direction to the Ordinary as to the depository in which he shall deposit the funds received from the sale of near beer licenses. Section 1768 of the Civil Code directs that all moneys col1ected from the sale of near beer licenses ''shall be accounted for and paid over
28

to the treasury of the State." rrhe Governor gives directions to the tax collectors as to where they shall make their deposits, hut I do not think that this carries with it the authority to direct as to where the Ordinary shall make his deposits.
Sub-section 4 of Section 228 of the Civil Code, which prescribes the duties of the treasurer, provides that: ''de~ posits of the public revenue or money shall be made only in such bank or banks as the treasurer may select, with the approval of the Governor," etc. I think, under the authority of this section of the Code, the Treasurer, with the approval of the Governor, may direct the Ordinary of Chatham County as to the depository wherein he shall make his deposits of the funds arising from the sale of near beer licenses.
Very truly,
T. s. FELDER,
Attorney General.
February 24, 1912.
RoN. JosEPH M. BRmvN, Governor, Capitol.
Dear Sir-I am in receipt of your letter enclosing a communication from the Ordinary of Richmond County, and note your request that I advise yon whether or not there is any authority in law for paying the ordinaries ten per cent. commission for collecting near beer license taxes. In reply I beg to say that there is no authority of law for the payment of any commission to the ordinaries for the collection of this license tax.
Very truly,
T. s. FELDER,
Attorney General. 29

March 28, 1912.
HoN. JosEPH M. BRowN, Governor, Capitol.
Dear Sir-I am in receipt of your letter of the 26th inst., enclosing a letter from Mr. C. S. Robert, a civil engineer of Atlanta, Ga., written you in regard to his compensation for surveying the line between Wilkerson and Twiggs Counties, and I note your request that I advise you out of what fund this claim for compensation shall be paid.
In reply I beg to say that there is no authority of law for paying this claim out of any fund in the State 'I'reasury. As I gather from the letter of Mr. Robert he was appointed by the Governor, under an Act approved August 17, 1908, as surveyor to run the line between the counties mentioned, and he accepted the appointment, did the work, and has not been paid his compensation in full by reason of the fact that he has been unable to collect out of Wilkerson County the part chargeable to that county under the net. This Art specifica1ly declares that the compensation and expenses of the surveyor shall be paid by the counties between which the line is run. Mr. Robert is correet in his :-tatement that the Supreme Court has declared in the rase made by himself against the County of Wilkerson that his compensation and expenses cannot be paid out of the county treasury, as there is no authority of law for the levying of tnxes to pay the same. \Vhile this is true, and it is the law of the case, it does not follow that his cornpensation and expenses can be paid out of the State Treasury because the Governor made the appointment under the Act, and he, as surveyor, has fully performed his duties. Money can be taken from the State
30

Treasury only upon appropriations made by the General Assembly.
Vei'y truly, T. S. FELDER, Attorney General.
April 4, 1912.
HoN. JosEPH M. BRowN, Governor. Capitol.
Dear Sir-I am in receipt of your letter of the 29th ult., enclosing a letter from Hon. J. P. Heard, a trustee of the Georgia State Sanitarium, and note your request for an opinion upon the question submitted by Mr. Heard.
I understand from Mr. Heard's letter that the four buildings authorized to be erected for tuberculosis patients at the Sanitarium, under the Act approved August 13, 1910, lwve been completed and paid for out of the appropriation made hy the ~Act, a_nd he wishes to know if a balance remaining of the appropriation may he used by the Trustees of the institution in paying for two additional buildings of the same kind constructed by the Trustees by the help of the labor of the inmates of the Sanitarium.
The Act in question appropriated $15,000.00, or as much of the sum as might be necessary, to erect and equip four buildings on the grounds of the Sanitarium for the care and treatment of tuberculosis patients. The following provisions are found in the Aet:
''That it shall be the duty of said board to have plans of said buildings prepared and specifications drawn, and shall advertise for bids and shaH let the work to the lowest responsible bidder, which
31

bid shall be submitted to the Governor, who shall approve the same and shall require the contractor to give bond to the State for the faithful performance of the work, and the Governor shall draw his warrant on the treasury in favor of contractor from time to time as the work progresses. Said sum to be drawn only on the certificate of the architect showing the amount of work accomplished."
These directions given by the Legislature as to the use of the fund appropriated and the manner in which it shall be expended are, of course, mandatory, and the money cannot be taken from the Treasury unless the sarrne are followed.
It is my opinion, therefore, that this balance cannot be used in the manner suggested by Mr. Heard.
Very truly,
s. T. FELDER,
Attorney General.
April 9, 1912.
MR. A. H. ULM, Secretary, State Capitol.
Dear Sir-Replying to your letter of the 3d inst., asking if the Governor has the power to fill a vacancy existing in the office of notary public and ex-officio justice of the peace of Sumter County, the incumbent of the office having recently died.
The Constitution provides that when an office shall become vacant by death, resignation or otherwise the Governor shall have power to fill such vacancy, unless otherwise provided by law. Civil Code 6483.
The Judge of the Superior Court of Sumter County upon the recommendation of the grand jury has power, in
32

my opinion, to fill the vacancy. Section 4650 of the Civil Code provides that : ''The Governor shall not issue a commission to any notary public and ex-officio justice of the peace, unless it shall appear from the order of appointment that such appointment was made at the term of court next preceding the vacancy, or at some succeeding term after such vacancy has occurred.'' This section of the Code seems to collJtemplate the filling of a vacancy in the manner in which the office was originally filled, that is, by the judge upon the recommendation of the grand
JUry.
A method being prescribed by law for the filling of the vacancy it follows, therefore, that the Governor has no authority to make the appointment.
Very truly,
T. s. FELDER,
Attorney General.
April 10, 1912.
HoN. JosEPH M. BRowN, Governor. Capitol.
Dear Sir-I am in receipt of your letter of the 5th inst., enclosing a letter from the Ordinary of Pulaski County, and note your request that I give you an opinion on the question made by the Ordinary.
It appears from the statement of the Ordinary that the Commissioner of Roads and Revenues of the County of Pulaski, who was elected under a special Act approved August 12, 1911, has recently died, and, in the opinion of the Ordinary, there is no provision made in this special Act for filling the vacaney, and he suggests that you issue
33

to him a writ of election for holding a special election to fill the vacancy under Sections 90 and 91 of the Civil Code.
I do not think these two sections of the Code are applicable, but, in my opinion, Section 627 of the Civil Code meets the situation. It reads as follows:
"Vacancies in Ojj'ice of Commissioners. When a vacancy occurs in the office of commissioners of roads and revenues in any county in which the special act creating a board of commissioners of roads and revenues for said county makes no provision for succession to fill such vacancy, the judge of the superior court of the county shall have power to appoint a successor to fill the unexpired term.''
It would seem to be proper that the local authorities should bring the matter in question to the attention of the judge of the superior court of the county, and if he determines that the special Act makes no provision for filling the present vacancy, then, under the section of the Code quoted, the judge will appoint a successor to fill the unexpired term.
I return herewith the letter of the Ordinary. Very truly,
T. s. FELDER,
Attorney General.
April 27, 1912.
HoN. JosEPH M. BRowN, Governor. Capitol.
Dear Sir-Answering your request of this date for an opinion on the application made by the Sheriff of Brooks County for the payment of his expenses for carrying one Andrew Simmons from Brooks County to the State Sanitarium.
34

As I understand the facts Simmons was convicted of a capital offense in Brooks County, and thereafter an application was made to the Governor under Section 1074 of the Penal Code to examine into the sanity of Simmons, it being claimed that he had become insane subsequent. to the conviction. A commission was appointed and a report made by them that Simmons was insane, and he was thereupon duly committed by the Governor to the State Sanitarium under said section of the Code.
The immediate question is, shall the expenses of the Sheriff in conveying Simmons from Brooks County to the Sanitarium be paid from! the State Treasury. I do not find any authority of law for paying these expenses out of the State Treasury. The section of the Code above cited provides that "the cost of the investigation shall be paid by the Governor out of the contingent fund.''
This refers clearly to the expemms incident to the inves-
tigation proper made by the physiciam:, and does not include the expenses of an officer which may he incurred in transporting the insane person from the county to the Sanitarium after he has been so committed by the Governor.
Very truly,
T. s. FELDER,
Attorney General.
June 6, 1912.
MR. W. R. PoWER, Executive Clerk, Capitol.
Dear Sir-In the matter of cJaim for reward for the arrest of W. B. Norton, a fngitive from justice.
The facts in thiS' matter, as I understand them, are
35

that the Governor offered a reward for the arrest of W. B. Norton, a fugitive from justice. Norton waR charged with having committed the crime of murder in ,Jones County. After this reward was offered Norton surrendered himself to the Sheriff of Berrien County, who took him into custody and delivered him to the Sheriff of Jones County. Norton was tried, convicted and iR now serving his sentence. The Sheriff of Berrien County now makes claim before the Executive Department for the reward. The question now arises, is this claimant, he being Sheriff of Berrien County at the time he made the arrest, entitled to receive the reward under the statute.
Section 902 of the Penal Code, wlhich authorized the Governor to offer the reward, provides, in part, as follows: "but no suclh reward shall be paid to any officer who shall arrest such person in the regular discharge of his duty, by virtue of process in his hands to be executed . . . " It is contended by counsel for the claimant that in view of the fact that the arrest was not made by virtue of process in the hands of the officer to be executed that he is entitled to the reward, notwithstanding the arrest waS' made by the officer in the regular discharge of his duty. I do not agree with counsel in his position. Process was not nece8sary to give this officer all the authority to make the arrest, Norton being a fugitive from justice. Penal Code 917. A warrant or other process would have been a useless paper. The very proclamation issued by the Governor, under which the reward was offered, especiaJly charged and required aJl officers of the State, both civil and military, to be vigilant in endeavoring to apprehend and arrest Norton in order that he might be brought to trial for the offense with which he stood charged. I think by the terms of the statute itself the
36

claimant is not entitled to receive the reward. Many of the courts hold that it is against public policy to allow the officer making an arrest in the regular diRcharge of his duty to he paid a reward offered by the government. Former Attorney General, Hon. ,John C. Hart, in an opinion rendered on November 22, 1907, in passing upon the claim of a policeman for a reward offered by the Governor, the arrest having been perfected in the regular discharge of his duty, ruled: "It would seem, therefore, that not only the law but public policy is against the payment of rewards to an officer for the arrest of felons where it is the duty of such officer to make arrests." I understand, from inquiry made, that this has in effect been the construction put on the statute in question for a lonp- number of years by the Executive Department, that is, that an officer who makeR an arrest in the regular discharge of his duty is not entitled to receive a reward offered by the Governor, notwithstanding the officer did not make the arreRt by virtue of process in his hands to he executed.
It is my: opinion that this claim should be denied. Very truly,
s. T. FELDER,
Attorney General.
J nne 24, 1912.
HoN. JosEPH M. BROWN, Governor, CapitoL
Dear Sir--I am in receipt of your letter of the 22d inst., enclosing a letter from Mr. \V. K. Miller, attorney for the Charleston & Western Carolina Railway Company, and I note your request that I advise you if there is any State fund from which the claim, as set up by Mr.
37

Miller, can be paid. If the claim is a proper one for the State to pay there is, of course, no fund out of which it could be paid, except the contingent fund.
From the facts, as I understand them, there does not appear to be any liability on the State to reimburse the railroad company for the amount expended in the manner stated. From Mr. Miller'R letter I gather that the railroad company, in order to protect negro firemen from assaults made by white firemen and their sympathizers, employed guards, and that these guards were Rworn in as deputies by the Sheriff of Richmond County. The Sheriff presented the bill to the County Commissioners of Richmond County and the payment of it waR refused, and the railroad company was required to pay the guards, which amounted to $180.00, and it is now asked that the railroad company be reimbursed this sum of money out of the State Treasury on the ground that the company iR a tax payer and their property is entitled to protection at the handR of the State. I underRtand that the Governor was not rallerl on to employ these gnardR or to protect the property, and was in no way concerned in the employment. Surel,v it cannot be eontended that a private person or corporation can, at their discretion and will, employ persons to protect their property and ereate a liability on the State to pay for s1wh services. There is no authority of law for paying this claim.
Very truly,
T. s. FELDER,
Attorney General.
.June 26, 1912. RoN.JosEPH 1\f. BRowN, Governor,
Capitol.
Dear Sir-I am in receipt of your letter of the 24th
38

inst., enclosing a letter from Mr. W. H. C. Tate, asking you to revoke the commission of W. S. Huff, a justice of the peace, on account of the fact, as stated in the letter, that the officer "is now in jail for contempt of court, he was appointed as receiver of one of the dredge boats in this county and reserved one thousand dollarS' for the sale of the same and has mislaid the money, or at least has used it for his own benefit.''
Justices of the Peace are removable from office upon conviction for malpractice in office. (Civil Code 6525, Constitution.) Section 4656 of the Code provides that, ''JusticeS' are removed from office in the manner prescribed by the Constitution, and also on conviction for malpractice in office, or for any felonious or infamous crime.'' By Section 258 of the Code persons' are made ineligible to office who have been "convicted and sentenced finally for any felony, under the laws of this or any other State involving moral turpitude, the offense being also a felony in this, unless restored by a pardon from the proper executive, under the great seal of the State, to all the rights of citizenship.'' Section 264 of the Civil Code dedares' that all offices in this State are vacated, among other things, by "voluntary act or misfortune of the incumbent, whereby he is placed in either of the conditions specified of ineligibility to office, which shall operate from the time the fact is ascertained and declared by the proper tribunal.'' Section 264 further declares that an office is vacated ''By decision of a competent tribunal declaring the office vacant.''
Under the facts submitted by Mr. T'ate's letter it does not appear upon the present record that the commission of the justice of the peace is subject to be revoked. The fact that he has been sentenced to jail for contempt of court does not mean that he has been convicted of a
39

crime. For one to stand convicted of a crime he must have been tried in the manner prescribed by law for a violation of a penal statute, that is, tried upon accusation or indictment charging him with a violation of one of the criminal statutes and duly convicted in a court of competent jurisdiction.
Very truly,
T. s. FELDER,
Attorney General.
September 17, 1912.
MR. W. R. PowER, Executive Secretary, The Capitol, Atlanta, Ga.
Dear Sir-Replying to your letter in which you submit for my interpretation that part of Section 2 of the New School Law which applies to the amount of expenses which may be allowed to the members of the State Board of Education, I note that you "wish to know w'hether that amount covers the total expense of the four or could it be construed to mean each."
Section 2 of the Act provides that:
'''I' he four appointees shall receive as compensation for their services $250.00 per annum each ~, * * * and be allowed their actual traveling expenses; the total expenses for the four appointees shall not exceed $100.00, in going and returning to their homes, upon submitting a sworn itemized statement acC'ompanied by proper vouchers and riot otherwise.'' It seems plain from thi:,; language that the entire sum which may be paid is $100.00, which shall cover the ex-
40

penses of each and all of these officers, and the law cannot be read to mean $100.00 for each officer.
Yours very truly,
s. T. FELDER,
Attorney General.
October 24th, 1912.
MR. A. H. ULM, Executive Secretary, State Capitol.
Dear Sir-Replying to your requeRt that I advise you whether Hon. A. S. .T. Hall, Ordinary of Fannin Cou:q.ty, may be permitted hy and with the consent of the Governor to withdraw his resignation heretofor.e tendered to the Governor under the conditions aR Rhown by the correspondence which you submit to me. The correspondence shows that Mr. Hall tendered his resignation on the 22nd day of May of the present year to take effect on the 15th day of the following November, and that the Governor accepted the resignation on the 23rd day of May, and on the following day notified the Clerk of the 'Superior Court of Fannin County that he had accepted the resignation of Mr. Hall to take effect on the 15th day of November, 1912. Mr. HaJI by a letter to the Governor of date the 10th im;t. makes known his desire to withdraw his resignation. Mr. Hall's resignation having been tendered and accepted to take effect in the future a vacancy in the office of Ordinary would not actually exist until that date arrived, that is, until the 15th day of November. No eJection has been called by the Clerk of the Superior Court to fill the expected vacancy, and no new rights have intervened. I think
41

that with the consent of the Governor this resignation can be legally withdrawn.
I return the correspondence sent me. Very truly,
s. T. FELDER,
Attorney General.
STATE OF GEORGIA, ExECUTIVE DEPARTMENT,
ATLANTA.
November 4, 1912.
HoN. T'. S. FELDER, Attorney General, State Capitol.
Dear Sir-By the Governor's direction I herewith send to you a file ]eft in this office by .T. J-1. Riley & Co., said file relating to a request for relief on the bond of a constable in Fulton County.
The law requires Constables to give bond to the County Ordinaries, certificate of which constitutes their commission. \Ve have no record whatever relating to these officers. Their election is not certified to this office and they are not commissioned from here. Their bonds are not made out to the Governor, but to the Ordinary or County Commissioners.
In some counties the Ordinaries or County Commissioners grant relief on these honds. In others they insist on this office doing so. Having no original record to go by i1t is difficult to grant relief intelligently.
I would thank you to advise this office if it is neces-
42

sary for the Governor to pass on applications for the relief of sureties on the bonds of Constables.
Respectfully yours,
A. H. ULM,
Secretary Executive Department.
November 18th, 1912.
MR. A. H. ULM, Secretary Executive Department,
Capitol.
Dear Sir--I am in receipt of your letter enclosing correspondence from Messrs..J. L. Riley & Company and othen; as to relief of a surety on a cons,tab1e 's bond to which they refer, and I note the question which you ask. I think Section :301 of the Civil Code controls the matter. You will notiee from this section that a surety may be relie\'ed from a bond of a public officer by making a svvorn applieatjou to the Governor, provided the cause for the relief is good and the Governor approves the same. A Constable is a puhlie officer and this Section of the Code is applieable to :mreties on his bond. McCain vs. Bonnet', 122 Ga. 84~, 844.
I return all the file which you sent me. Very truly,
rr. s. FELDER,
Attorney General.
November 16th, 1912.
RoN. JosEPH M. BRowN, Governor, Capitol.
D'ear Sir-I have the honor to acknowledge receipt of the following letter from your Excellency:
43

''At the last ses'Sion of the General Assembly a bill was enacted into law establishing an Insurance Department, (Acts 1912, page 119), and section 17 of said Act provides as follows:
Sec. 17. Be it further enacted, That the officers of the Insurance Department heretofore mentioned shall be paid the following salaries: The Insurance Commissioner, $3,000.00 per annum; the Deputy Insurance Commissioner, who shall be a man of actuarial experience, $3,000.00 per annum, and the addi1tional clerk of the department, $1,500.00 per annum. All of said sums to be paid out of the State Treasury as is now provided by law for the payment of salaries of all State House officers, and the said officers of the Insurance Deother fees or compensation whatever. Provided, that in no event shall the salaries paid said officials exceed the fees received under the provisions of this Act.
''The Constitution of Georgia provides, Section 6492, Code of 1910, as follows:
Par. 4. Comptroller Genera] 's salary. The salary of the Comptroller General shall not exceed two thousand dollars per annum. The clerical expenses of his department, including the Insurance Department and wild land clerk, shall not exceed four thousand dollars per annum; and without said clerk it shall not exceed three thousand dollars per annum.
''Also the Constitution of Georgia further provides, Section 6495, Code of 1910, as follows:
Par. 7. F'ees and perquisites denied. The Secretary of State, the Comptroller General and the Treasurer shall not be allowed any fee, perquisite, or compensation, other than their salaries as prescribed by law, except their necessary ex-
44

penses when absent from the seat of government on business for the State.
"I respectfully request your written legal opinion as to whether I would be authorized to comply with Section 17, of said Insurance Act, as set out above, and draw my warrant in favor of the Insurance Department for the payment of the expenses as set out in said Section, under the two rSections of the Constitution as above recited. In other words, I would like to be advised as to whether Section 17 of said Insurance Act is Constitutional or not.''
I respectfully submit the following answer:
The Act mentioned became effective on ;the 19th day of August last, the Department of Insurance was at once organized, the officers entered upon the discharge of their duties, an appropriation was made by the Legislature for the payment of their salaries, and the question now is shall your Excellency draw warrants on the Treasury in payment of the services performed by the officers or shall you treat as a nullity the provisions of the Act fixing and allowing their compensation and the appropriation made for the payment of the same as in violation of the Constitutional provisions which you quote.
'The validity of the provision in the Act fixing and allowing to the Comptroller General, as Insurance Oommissioner, compensation for performing the duties required of him under ,the Act depend upon whether or not these duties come within those which he is required under the Constitution to perform as Comptroller General, or belong properly to the office of Comptroller General. If they do come within the scope of his duties as Comptroller General then he is not entitled to be paid the compensation provided, for to do so would be to violate the inhibition in the Constitution against his receiving
45

any compensation beyond the salary fixed by the Constitution. On the other hand if the duties of the Insurance Commissioner as fixed by the Act are not such as come within the official duties of the Comptroller General, as such officer, then the General Assembly has the power when they put duties on him foreign to his office to compensate him therefor and to do so is no violation of the Constitution. '[1his has been the long continued construction placed on the Constitution by the General Assembly of the State. The Bank Bureau was established by an Act of the Legislature in the department of the 'rreasury and the State Treasurer was made its chief officer at a fixed salary to be paid him in addition to the compensation allowed him by the Constitution as Treasurer. (Civil Code 2279 et seq.) The Secretary of State by a legislative enactment is Corporation Commissioner and is compensated for his services as such in addition to the Constitutional salary allowed him as Secretary of State. (Civil Code 2208 et seq.) The Constitution limits the clerical expenses of the Treasury Department and that of the Secretary of State, but these limitations were not eonsidered as applying when the Legislature came to fixing the clerical expenses of the Bank Bureau and Corporation Department, the legislative interpretation evidently being that the duties if these new departments were separate and distinct from those of the Treasury and Secretary of State and that it was legal to provide additional clerks to assist these officers in performing the duties. Many of the States of the Union have constitutional provisions similar to our own inhibiting the receiving of compensation by an officer beyond that of his fixed salary and I find that where the courts have construed the provision it has been held to mean that the officer should not receive additional compensation for
46

performing the duties incident to his office, and that the legislature could invest him with a new office and compensate him for performing i!s duties. It was held by the Supreme Court of Nehraska that ''One holding the .office of Secretary of State is eligible to that of Adjutant General, and the allowance to him of a salary therefor does not conflict with that section of the Constitution fixing the salary of Secretary of State and providing that he shall not receive to his own use. any fees, costs, perquisites of office, or other compensation.'' The State vs. Weston, 4 Neb. 234. The Supreme Court of !Sou:th Dakota held that a statute making the Secretary of State a member of the brand and mark committee and allowing him certain fees as compensation as a member of the committee in addition to his salary as Secretary of State did not conflict with a provision of the Constitution of that ~state which fixed the salary of the Secretary of State and "providing that his powers and duties shall be prescribed by law and that he shall receive 'no fees or perquisites whatever for the performance of any duties connected with his office.' '' State vs. Riddle, 81 Northwestern 980. Similar rulings were made in the cases of State vs. LaGrave, Comptroller, (Nevada) 48 Pac 193; Love vs. Baehr, Treasurer, 47 Cal 364; Grosman vs. Nightingill, 1 Nev. 323; State vs. Walker, 10 Ky. 473; Melone vs. State, 51 Cal. 549.
The Constitution does specifically require duties of the Comptroller General in regard to life insurance companies. Before a foreign life insurance company can do business in the State it must satisfy the Comptroller that it has made in its home State the deposit required by the Constitution, or in lieu thereof make the deposH with the Comptroller himself and receive a certificate from him. He issues certificates to domestic life insur-
47'

ance companies to do business in the State and receives the deposits required of them and approves the depository where the securities _are placed. (Art. 3, See. 12, Pars. 1, 2 and 3, Constitution). By an amendment to the Constitution ratified in 1891 the Comptroller grants charters to insurance and certain other companies in case of the disqualification of the Secretary of State. (Art. 3, Sec. 7, par. 18). From the adoption of the present Constitution until the year 1887 all the duties required of any State official as to insurance companies doing business in the State were performed under the law by the Comptroller Genera-l, as such officer, and he was not allowed any compensation therefor in addition to his salary as Comptroller. In 1887 an Act was passed by the General Assembly which declared, '''That the Comptroller General of this ~State shall be the Insurance Commissioner of this State, and shall be charged with the execution of all the laws of this State regulating the business of insurance in the State of Georgia.'' Under this Act the duties previously performed by the Comptroller General were put upon him as Insurance Commissioner and many new duties added, such as' general supervisory powers over practically all classes of insurance companies, the right to examine into their affairs and financial condition and in certain instances to apply to the courts for liquidation. He was allowed under the Act one-fifth of certain fees collected by him for his services. This was in addition to the salary which he received as Comptroller. (Acts 1887, p. 113; Code Sections 2413 to 2449). He has received these fees continuously since the passage of the Act, a period of twentyfive years. The Legislature by the passage of this Act of 1887 creating the office of Insurance Commissioner and making the Comptroller General that officer, and
48

compensating him as Insurance Commissioner for the duties performed under the Act, evidently deemed the duties which they put upon him as not properly belonging to the official duties of Comptroller General. To view it otherwise would be to impute to .the Legislature the deliberate intention to violate the Constitution. Had the Legislature considered the duties such as the Comptroller should perform as a part of his official duties under the Constitution they would have required him to perform them without eompensation. >State vs. Riddle, supra. The Supreme Court of Georgia in the case of Cunningham vs. State, 128 Ga. 56, say:
"While legislative interpretation of the Constitution is not binding upon the courts, it is often strongly persuasive, and espec.ially is this true where the interpretation has been for a long time followed by the lawmaking department of the government.''
And the same court in rremple Baptist Church vs. rr'erminal Company, 128 Ga. 680, use this language:
''This court, and all other courts, will recognize the practice of co-ordinate departments of governments, and allow the construction placed by the officers in such dep~rtments upon statutes, and even the Constitution, to be operative where there is room for construction. The long-continued practice of the executive or the legislative department will be treated as persuasive authority by the courts, and has, in numerous cases ,been followed, although the individuHls composing the court at the time would have doubt as to the true construction if the question were left unaffected by the construction placed upon it by another department of the government.''
If a payment of the compensation provided for in the
49

Act of 1887 did not violate the Constitution, then it is clear that the compensation allowed under the Act of 1912 is equally free from such criticism. The latter Act simply fixed a definite sum which the Insurance Commissioner shall receive out of the fees collected in lieu of the percentage of the fees allowed by the former A'Ct. The Legislature by placing the Commissioner on a salary doubtless intended to and did save money to the State. The Act of l 912 largely increased the duties and powers of the Insurance Commissioner. It is plain that it was the legislative intent as expressed in the Act of 1912 to make the Department of Insurance ,a separate and distinct department of the government. The title to the Act begins: ''An Act to provide for the establishment of a department of insurance; to provide officers therefor, stipulate their salaries, etc." In the body of the Aet it is provided that: ''There shall he established in this State, in the office of the Comptroller General, a department which shall be called the Insurance Department of the State of Georgia, * * * its chief officer shall be the Comptroller Geneml, who shall be styled Insurance Com-
missioner * * * * The Commissioner shall have an official
seal of such device as he shall, with the approval of the Governor, select * * r., * The office of Insurance Commissioner shall be deemed a public office, etc. * ~, * * The Commissioner shall report annually to the Legislature his official transactions, etc."
The power of the Legislature to allow this compensation to the Comptroller General, as Insurance Commissioner, is not free from doubt, it being questionable if it is not the intent of the Constitution that he should perform these duties required as a part of his duties as Comptroller, but I think the doubt should be resolved in
50

favor of the validity of the Act and the legislative wil1 carried out.
''Mere doubt as to the constitutionality of a particular enactment settles its v,alidity. Heard vs. State, 113 Ga. 447.
'' l<Jvery Ad of the General Assembly is presumed to be constitutional, until it is declared to be unconstitutional.'' Griggs VR. State, 13 Ga. Appl. 683.
"Courts are not at liberty to declare an Act void because, in their opinion, it is opposed to the spirit supposed to vervade the Constitution, but not expressed in words." Park vs. Candler, 114 Ga. 46'6, 472.
The courts, whose r1uty it is to pass upon the constitutionality of legislative enactments, will not declare an Act unconstitutional unless it is clearly demanded, and is a plain and palpable violation of the Constitution, and where an Act is ''susceptible of two eonstructions, one violative of the Constitution and the other in consonance therewith, the latter construction will be adopted.'' If the matter is in the least doubt it is a cardinal rule that the courts will uphold the constitutionality of the Act. Park vs. Candler, 113 Ga. G47; Wellborn vs. EsteR, 70 Ga. 390; Plapworth vs. State, 103 Ga. 36.
"A Rtatute is not to be construed in a way such as will render it unconstitutional if it will admit of another conRtruction under which it may be constitutionally upheld." Smith vs. Evam, 125 Ga. 109.
It will be seen that the courts are loath to declare an Act of the General Assembly unconstitutional, and will not do so exeept in a plain and palpable case, so with much more hesitancy should the administrative depart-
51

ment set at naught the will of this co-ordinate branch of the government.
The Act in question provides that the Insurance Commissioner may appoint a clerk in addition to the one already employed by the Comptroller. If the Insurance Department, as now created, is a separate and distinct department of the government and the Insurance Oommissioner a distinct officer from that of Comptroller General and entitled to the compensation provided for in the Act, then I think it follows that the Legislature had the
right to provide a clerk for the Insurance Department
and compensate such clerk. There being certain duties under the Constitution in connection with insurance companies which the Comptroller General must perform and which cannot be performed by him as Insurance Commissioner, the limitation as to the clerical expenses of "his department, including the insurance department," as used in the Constitution can be construed to apply to the c~erical expenses which he shall expend in the performance of his duties in reference to insurance c1ompanies as Comptroller.
I do not see any trouble as to the right of the Deputy Commissioner to receive his salary. There is no constitutional provision which adversely affects him. He is not a clerk, but an officer appointed under the Act by the Insurance Commissioner ''to assist him in the discharge and performance of his duties, and in the event of a vacancy in the office of Insumnce Commissioner, and in his absence or disability for any reason" to perform the duties of Insurance Commissioner.
I am of the opinion that your Excellency would be ,authorized in drawing warrants upon the Treasury for the salaries 'Called for by the Act, such warrants specify-
52

ing that they are to be paid out of the insurance fees deposited therein under the provisions of the Act.
Very truly,
T. s. FELDER,
Attorney General.
DEPARTMENT OF STATE.
ATLANTA, Feb'y 21st, 1912.
HoN. T. S. FELDER, Attorney General, Capit,ol.
Dear Sir-I enclose you all correspondence, as well as the certificate of sale issued by the Hon. J. I. 'Summerall, Ordinary of Pierce County, as to School Lot No. 100 of 9th district originally Appling, now Pierce, County:
I suppose the Ordinary made this sale under Section 3811 of the Code of 1910.
I would refer you to Section 3812 of said Code, and request you to give me your official opinion whether the Ordinary of Pierce County had the legal right to sell this Lot 100 reserved to the State for educational purposes.
Yours truly, PHILIP CooK, Secretary of State.
March 1st, 1912.
HoN. PHILIP CooK, Secretary of State, Capitol.
Dear Sir-I am in receipt of your letter of the 21st ult. enclosing report of the Ordinary of Pierce County of a sale of land lot No. 100 in the 9th district of originally Appling, now Pierce, County, and note your request that I advise you whether or not this sale is legal.
53

The lot of land in question was set apart and reserved by the General Assembly by an Act approved December 15th, 1818, for school purposes.
Upon investigation I find that this particular lot of land, among others, was by Governor Terrell, in an order passed in January, 1903, recognized as property of the State adversely held, and suit was ordered to be brought to recover the same. (Executive Records, Minute Book 1902-6, pages 52-54 and 70.) By an Act approved August 17th, 1903, the General Assembly authorized the settlement of suits which had been brought to recover these school lots, and, also, provided for compromises with parties claiming adversely to the State where suits had not been filed. In the latter cases if, after notice was given as provided by the statute, no compromise wae, made, suits were authorized to be brought. 'rhe FJxecutive order referred to and this Act of the Legislature undertook to and did deal directly with this lot of land which the Ordinary has sold.
The land in question being the property of the State the Executive had the power to order the recovery of the same, and the Legislature, of course, had the right to declare and direct how adverse holders might be dealt with and the land disposed of. The Legislature having done this its direction is exclusive and must be followed.
It is, therefore, my opinion that the Ordinary of Pierce County had no authority to sell the lot of land in question, and you, as Secretary of State, should not issue any grant under said sale.
I return herewith all papers which Y'OU sent with your letter.
Very truly,
s. T. FELDER,
Attorney General.
54

September 26th, 1912.
HoN. PHILIP CooK, Secretary of State, Capitol.
Dear Sir-Replying to your letter of the 16th inst., which is as follows:
"Will you please advise the Printing Commission if the Act approved 29 of Feby. 1876 (page 1, Laws of 1876), is still of force or if the same has been repealed by the Ad approved Aug. 13, 1909, (page 113, Laws of 1909).
"If the Act of 1876 is still of force would the Printing Commission be au{horized to pay out of the general printing fund for printing by the Agricultural department the sum of $1,000.00 to a printer other than the State printed"
The Act of 1876 which you refer to is as follows: ''That from and after the passage of this Act,
the Printing of the Department of Agriculture of this State shall be paid for as now pi'ovided by law for the payment of other public printing of this State: Provided, the amount expended under this Act shall be limited to the sum of one thonsand dollars.''
At the time this Act was passed the public printing of the State was done by an officer known as the Public State Printer, who was elerted by the General Assembly and his compensation as fixed by statute was a certain per centum ''on the actual costs of the material and labor employed in the public printing." A general appropriation was made then, as now, for the printing fund. The Constitution of 1877 abolished the office of State Printer and directed that the General Assembly should provide for the letting of the public printing to the lowest responsible bidder. Civil Code 6575. An Act was passed
55

in pursuance of this Constitutional provision in 1879 and the public printing has since been done under a contract. Acts 1878-9, page 37. This Act as amended in 1909 is contained in Sections 1337 et seq. of the Civil Oode. It will be observed that the Act of 1876 provides that ''the Printing of the Department of Agriculture of this State shall be paid for as now provided by law for the payment of other public printing of this State." As the Constitution abolished the office of State Printer and provided a different method for the doing of the public printipg, the printing from the Department of Agricultur& cannot now be done as the public printing was done at the time the Act of 1876 was passed.
The printing from the Agricultural Department
which is to be paid for out of the general printing fund
under the control of the printing commission, and which comes within the contract the State has for the doing of the public printing, must now be done under that contract and paid for accordingly.
Very truly,
T. s. FEI,DER,
Attorney General.
------------
DEPARTMENT OF STATE.
A:'rLANTA, Oct. 12th, 1912.
HoN. Tnos. S. :B,ELDER, Attorney General, Atlanta, Ga.
Dear Sir-In compliance with Section 16 of" An Act to provide for the establishment of a Department of Insurance," etc., approved August 19th, 1912, the United States Health and Life Insurance Company, a mutual,
56

industrial, life, health and accident insurance company, has filed in this office a petition to become a stock company.
Does this not become an amendment to the original charter of said company, and should I not charge this company a fee of $25.00, to be covered into the Treasury for this amendment, as required by Section 1248 of Code of 1910.
An early reply will be appreciated. Yours truly, PHILIP CooK, Secretary of State.
October 16, 1912.
RoN. PHILIP CooK, Secretary of State, State Capitol, Atlanta, Ga.
Dear Sir-Replying to your inquiry of the 12th inst. I beg to say that a certificate filed under Section 16 of the Act creating the insurance department, should be, I think, treated as an application for an amendment and a fee of $25.00 as prescribed by Section 1248 of the Civil Code for amending charters of insurance rompanies should be c~harged.
Very truly,
'r. s. F'ELDER,
Attorney General.
June 5th, 1912.
RoN. W. J. SPEER, 'l'reasurer and State Bank Examiner, Capitol.
Dear Sir-In the matter of Waycross Savings & Trust Company.
57

Replying to your oral request that I give you my opinion, under the facts which you submitted to me, as to whether the above named institution is subject to examination by you as State Bank I1Jxaminer. 'l'be secretary of the institution, in ltis letter to you, claims that the institution is not subject to examination by the State Bank Examiner for the reasons, ''First, we are chartered by the Superior Court, not the Secretary of State; second, we are not doing a banking business. We are
chartered to do a B. & L. business, and to accept deposits
not subject to check, as provided in Sections 2878 to 2881, of C'ode of 1~111, inclusivt~. And this is what we are doing."
The Constitution and statutes passed in pursuance thereof require all corporate powers and privileges to do a banking business to he granted by the Secretary of State. Civil Code 6446, 2262. rrhe Superior Court rannot confer upon a corporation authority to do a banking business. Civil Code 2823; Steed vs. American National Bank, 136 Ga. 693.
Section 2279 of the Civil Code charges the Bank Bureau with the duty "to examine into the condition of all banks, banking companies, banking associations, branch banks, trust companies,'' and Section 2299 of the Civil Code makes it the duty of the State Bank Examiner or his assistant to visit twice in each year for the purpose of making an examination "each and every bank or trust company cbing busine,_s in thi:l State, by law subject to his exr:tmination, except national banks, etc.''
This corporation not being chartered by the Secretary of State cannot be classed as a banking corporation and the State Bank Examiner has, therefore, no authority to examine into its affairs.
58

As to whether this corporation, being chartered to do a building and Joan association business, is authorized to accept deposits not subject to check under the sections of the Code cited by its secretary I am not required or authorized to decide.
Very truly, \
T. s. FELDER,
Attorney General.
September 20, 1912.
HoN. \V. .T. SPEER, 8tate Tre~nmrer, The Capitol, Atlanta, Ga.
Dear Sir-R,eplying to your request for my opinion as to whether the Act approved August 19, 1912, amending Section 1795 of the Civil Code repeals the provision in sub-section one of Section 22R of the Civil Code which makes it the duty of the 'l'reasurer to pay out the money in the 'l'reasury only upon the warrants of the Governor when countersigned hy the Comptroller General, and if you can ''lawfully make the payment:;; required under the Act to the Commissioner of Agriculture on his warrants.'' T note the reference which you make to subsedi on 12 of said Section 228, which an~:horiz:es the Treasurer "to pay all officer:;; of the 8tate whose salaries are fixed by law," etc., and that you wish to know if you are authorized to honor the warrant of the Commissione'r of Agriculture for the salaries of the employees mentioned in the Act. I also note your reference to subsection 2 of Section 2:38 of the 0ivil Code which makes it the duty of the ComptroJler to examine and countersign the warrants upon the Treasury drawn by the Governor, President and Speaker.

The Act in question amends Section 1795 of the Code

so as to require the Commissioner of Agriculture to pay

into the State Treasury all money received by him from

the inspection of fertilizers without deducting from the

same the salaries of the inspectors and certain expenses

mentioned in the Section, as was done before the passage

of the Act, and directs that these salaries -and expenses

shall be paid from the rrreasury out of these inspection

fees upon warrants drawn by the Commissioner.

The Legislature has authority, of course, to make this

disposition of these fees and it has equal authority to

say in what manner they shall be paid out. The direc-

tions contained in Section 228 of the Code as to how

money shall be paid from the Treasury is but a legisla-

tive enactment and can, of course, be modified or excep-

tions made to it, at the pleasure of the Legislature. It

will be noticed from the reading of the Section that it

already contains eXJceptions in that it allows money to

be drawn from the Treasury upon the draft of the pre-

siding officers of the two bodies of the Legislature. The

Act we are discussing is but another exception in that

it allows the Commissioner of Agriculture to draw his

warrants upon the Treasury for the purposes named

therein. Section 163 of the Civil Code provides that, ''all

payments from the Treasury, unless otherwise provided,

shall be made upon warrant of the Governor." The

Legislature has seen fit by this Act to otherwise provide.

It is my opinion that warrants drawn on the Treasury

by the Commissioner of Agriculture in accordance with

the provisions of the Act in question should be honored

by you and charged against the fund deposited in the

Treasury under the terms of the Act.

Yours very truly,
s. T. FELDER,

60

Attorney General.

,Jan. 8th, 1912.
HoN. \VM. A. \VmcniT, Comptroller General, Capitol.
am Dear Sir'--I in receipt of your letter enclosing a
letter from Mr. A. P. Stewart, Tax Collector of Fulton County, and note the questions which he submits, and upon which you ask an official opinion from me.
Mr. .Stewart wishes a ruling upon the right of two persons to register in Fulton County, the facts being in one case that the party returns and pays his State and county taxes, personal and poll, in an adjoining county, but, in business, is connected with one of the offices at the State Capitol. He claims the right to register in Fulton County as a resident of the county. The other party claims to have two homes, one in Fulton and the other in DeKalb County, with business offices in Atlanta. Mr. Stewart also wishes to know what rule can be adopted as regards a man's domicile.
Section 2181 of the Civil Code gives the general rule for determining the domicile of a person. It reads as follows:
''The domicile of every person of full age, and laboring under no disability, is the place where the family of such person shall permanently reside, if in this State. If he has no family, or they do not reside in this State, then the place where such person shall generally lodge shall be considered his domicile."
"Domicile" and "residence," as used in our election and tax laws, are synonymous.
The law fixes the county of residence as the place where a person shall register and vote. Par. 3, Sec. 1, Art. 2, Constitution of Georgia. He makes oath at the
61

time he registers that he is a resident of the particular county in which he is registering. Civil Code Section 36.
Returns of personal property for taxation are required to be made to the re-ceiver of the county of a person's residence. Civil Gode 1075. There are some exceptions made in this Section, but they are not here pertinent. A person also makes return of his poll and professional taxes in the county of his residence. Civil Code Sections 917, 918 and 977.
In the two instances mentioned the parties by the making of the returns of their taxes have made a declaration as to what county they reside in. In addition to this I take it that neither one of them lodge in Fulton, nor does the family of either live in Fulton, but they only claim the right to register in Fulton because their business is in Atlanta.
I do not think Fulton is the county in whirh the law contemplates these two parties shoulil register.
Very truly,
s. T. FELDER,
Attorney General.
May 18th, 1912.
HoN. WM. A. WRIGHT, Comptroller General, Oapitol.
Dear ,Sir-Replying to your request for an official opinion upon the claim of Ron. T. Rod Skelton, Solicitor of the City Court of Hartwell, for $15.00 for representing the defendant in error in the Court of Appeals in the case of P. L. Fleming et al. vs. Hoke Smith, Governor, forfeiture of bond, from the City Court of Hartwell.
The case arose in the City Court of Hartwell upon
62

proceedings to forfeit a bail bond. Upon a judgment absolute in that Court against Fleming and others, de-

fendants, error was brought to the Court of Appeals. Mr. Skelton, as Solicitor, represented the defendant in error, Hoke ~Smith, Governor, in the Court of Appeals. The Judgment of the lower court was reversed. -While

the case was pending in the Court of Appeals the City

Court of Hartwell was abolished by the General Assem-

bly and all pending cases transferred to the Superior

Court of Hart County.

Mr. Skelton now presents the certificate of the Clerk

of the Court of Appeals to the effect that he appeared

by briefs and represented "the defendant in error" in

that court in the case named, and also presents a certifi-

cate from the t 'Jerk of the Superior Court to the fact

that he, as Solicitor of the City Court of Hartwell, "represented the State in the case of "B--,leming et al. vs. Hoke

8mith, Governor, in a bond forfeiture, which was liti-

gated in the City Court of Hartwell,'' and that the judgment rendered by the City Court was reversed by the

Court of Appeals and ''the defendants released from further liability on said bond.'' On these certificates the

Solicitor now asks for the payment of a fee of $15.00 out

of the State Treasury.

)

The Act creating the City Court of Hartwell provides that the fees of the Solicitor of that court shall be "for representing the State in each case carried to the ~Supreme

Court from said City Court, fifteen dollars, to be paid

him in the same manner as the Solicitor General of the

Northern Judicial Circuit is paid for performing similar

duties in the Supreme Court.''

Section 1126 of the Penal Code provides that for

services in the 1Supreme Court the fees of the Solicitor

63

General are: (1) In capital cases, $50.00; (2) Other felonies, $30.00; (3) All other cases, $15.00; (4) For litigated recognizances, double fees and commissions.
Section 1128 of the Penal Code is as follows:
"STATE To PAY FEES IN SuPREME CouRT, WHEN.
The fees of the solicitors, for services rendered in the Supreme Court, shall be paid by the State, on warrant of the Governor, in all case's when the Solicitor shall present the certificate of the Clerk of the Supreme Court as to services, and of the Clerk of the Superior Court to the fact that the defendant was acquitted, or was unable to pay the costs.'' This Section applies alike to cases in the Court of A:ppeals by the terms of the Constitutional Amendment creating the court. It will be observed from the Section of the Code quoted that before the Solicitor is entitled to a warrant on the State Treasury in payment for services rendereu in the Appellate Court, he must present a certificate of the Clerk as to the services therein, and also a certificate of the Clerk of the lower court to the fact "that the defendant was acquitted or was unable to pay the eostR.'' From the character of the certificate required from the Clerk of the lower court, that is, that the defendant was acquitted or was unable to pay the costs, I think that t!Je Section only applies to criminal cases propt~r, and that it does not apply in cases arising upon bond forfeitures. I am therefore of the opinion that the claim whielt you submit to me is not such a one as is covered by tl1e Section of the Code last referred to and warrnnt should not be drawn upon the 'l'reasury for the payment of the same.
Very truly,
s. 1'. FELDER,
Attorney General.
64

September 18, 1912.

HoN. vVJVI. A. "WRIGHT, Comptroller General, State Capitol, Atlanta, Ga.

Dear Sir-Replying to your letter in which you ask

my opinion if the general insurance Act, approved

August 19, 1912, repeals Section 248 of the Civil Code

which allows a clerk to be appointed by the Comptroller

at a salary of $1,800.00 per annum, $600.00 of which is

to he paid out of insurance fees.

-

Section one of the general insurance Act provides

that: ''The Insurance Commissioner may also appoint

a clerk in addition to the one already employed by the

Comptroller," and rSection 17, which fixes the salaries of

the officers of the Insurance Department named by the Act, mentions the clerk as ''an additional clerk of t~e

Department.''

I think it plain that the General Assembly intended

to, and did by the Act, retain the clerk named in Section

248 of the Code. It must be noticed, however, that although the Code

fixes the salary of this clerk at $1,800.00 per annum, that

part of the salary which is required to be paid out of

the insurance fees cannot in :fa:ct lbe :paid since the

passage -of this new Act, until an appropriation is made

for the purpose.

Section 2 of the Act provides-

"That the Commissioner shall collect the charges, fees and taxes as now provided by law and give proper receipts therefor, and at the end of every calendar month, or oftener, in the discretion of the Commissioner, shall pay into the State Treasury, all amounts collected by him."

and Section 18-

,' That all fees, license taxes and other dues and

65

taxes now imposed by the laws of this State and by this Act on insurance companies, shall be collected as now provided by law, and paid into the State Treasury as hereinbefore provided."
It will be seen from these Sections that all fees collected by the Insurance Department must be paid directly into the Treasury without deduction, and as the Constitution requires that "no money shall be drawn from the T'reasury except by appropriation made by law," it will, therefore, require a specific appropriation by the General Assembly to authorize the paym~nt to said clerk of any sum out of the insurance fees.
Yours very truly,
T. s. FELDER,
Attorney General.
April 27th, 1912.
RoN. T. J. CoNNER, Cartersville, Ga.
Dear Mr. Conner-! am in receipt of your letter of the 18th inst. and beg to submit the following as an answer to. the questions propounded by you.
1st. You ask if you can, as Commissioner of Agriculture, deposit all funds which come into your hands directly into the State Treasury, and after making such deposits draw upon the State Treasury ~r such funds as may be needed by you to meet the necessary expenses of the department.
Section 1795 of the Civil Code answers this question in the negative. The Section reads as follows:
''CoMMISSIONER's DuTY As TO CoLLECTIONS. It shall be the duty of the commissioner of agricul-
66

ture to keep a correct account of all money received from the inspection of fertilizers, and to pay the same into the Treasury after paying out )of said sum the expenses and salaries of inspectors, and for the tags and bottles used in making such inspections, and all materials used for making such inspections, and the materials used in recording same, and po,stage for sending out the bulletins
pertaining to the fertilizers'' * * * * * .
In addition to the above 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. This provision of the Constitution makes it plain that no money, when it has once reached the Treasury, can be taken therefrom except by a specific appropriation made by the General Assembly.
2nd. You ask "Can I under the law when I take the office call in the commissions held by the various oil inspectors appointed by my predecessor, and appoint other oil inspectors for that department of the service."
The oil inspectors, with the exception of the general
inspector, are appointed to hold office for two years from the date of the appointment "unless sooner removed by the Commissioner of Agriculture for incompetence, malfeasance or other sufficient cause.'' Civil Code Sections 1801, 1805. The term of the office being fixed by law at two years the incumbent cannot be removed before the expiration of that time, except in the manner provided by the law under which he was appointed, that is for "incompetence, malfeasance or other sufficient cause."
The words "or other sufficient cause" following the words "incompetence, malfeasance" should be construed to mean a cause of like character with incompetence 01 malfeasance, that is, a cause sufficient to remove must be
67

one affecting the competency of the officer or his official conduct. L1ancaster vs. Hill, 136 Ga. 405, State vs. McGarry, 21 Wis. 502, State vs. Hay, 63 N. W. Rep. (Neh.) 821, In re Soule estate, 25 N. Y. 8up. 270 and in re Tilden, 98 N. Y. Rep. 434.
The general inspector of oHs, however, stands upon a different footing from the other oil inspectors. He is appointed by the Commissioner of Agriculture, but the statute does not fix any tenure of office nor any manner of removal. But, as is ~stated by our Supreme Gourt in the case of Wright vs. Gamble, 136 Ga. 3'78, "where the tenure of the office is not prescribed by law, the power to remove is an incident to the power to appoint.'' The general inspector of oils, therefore, holds at the plea1sure of the Commissioner of Agriculture and you can, when you enter upon the discharge of your duties, remove the present incumbent and appoint another in his stead if you 'SO desire.
Wishing you a moRt successful ndministration of your office, I beg to remain,
Sin(~erely yours,
T. s. FEJJDER,
Attorney General.
May 23rd, 1912.
RoN.J. .J. CoNNER, Commissioner of Agriculture, Capitol.
Dear Sir-I am in receipt of your letter of the 21st inst. in which you ask my opinion '' aR to whether or not a commission issued by the Commissioner of Agriculture in the case of a resignation hy an oil imrpector for a two years term i:s not totally void.'' I quote further from your letter as follows:
68

''To be more explicit, Mr. Shelby Smith on Oct. 1st, 1910, was commissioned by my predecessor as oil inspector of Atlanta, term to expire on October 1st, 1912. On the 25th day of April, 1912, Shelby Smith resigned that commission and Mr. Hudson, who was then Commissioner, accepted the resignation. M. E. Tilley was on the ~same day commissioned by Mr. Hudson oil inspector for Atlanta, his term to expire on the 25th day of April, 1914.
"Now, my question is, is Mr. rrilley's commission good even until October 1st, 1912, at which time Mr. Smith's term of office won1 d1 have expired?
''Further, is a failure of Mr. Hudson to sign the order appointing Mr. Tilley fatal to Mr. Ti1ley''s commission and is the commission void on account of such failure?''
Under the law it is made the duty of the Commis-
sioner of Agrieulture to appoint an inspector of oils at
Atlanta and nine other designated eities of the State.
Each of said inspectol'ls holds his offiee for two years
fl'om the date of the appointment unless sooner removed
by the Commissioner of Agriculture for ineompetence,
malfeasance or other sufficient cause:
"If any vacancy ,shall occur in any of the offices ~f Inspector of Oils the vacancy shall be filled by the Commissioner of Agriculture for the unexpired term.'' Civil Code Sections 1800, ] 801.
The Act of the General Assembly from which the law
was codified use'S this language :
"If any vacancy shall occur in any of the offices of Inspector of Oils created by the first Section
of this Act, the said vacancy shall be filled by ap-
pointment by the Gommirssioner of Agriculture for the un~xpired term of the inspector 7Dho shall have vacated or been removed! from office." Acts 189091, Vol. 1, p. 138.
69

The law requires that an inspector "immedfi.altely after his appointment and before entering upon his duty as inspector, shall give bond in an amount to he fixed by the Commissioner of Agriculture.'' The bond is required to he made payable to the Governor, and shall be signed by the inspector and his sureties and approved by the Commissioner of Agriculture. Civil Code Section 1802.
The records in your department, as submitted to me, show the following:
First. That Mr. Shelby Smith in a letter dated April 17th, 1912, addressed to Hon. T. G. Hudson, Commissioner of Agriculture, tendered his resignation as Oil Inspector for the Atlanta district, the same to become effective on and after the 25th day of said month. Upon thi<s letter is written: "Aceepted-T. G. Hudson-Com. of Agrl. ''
Second. An order headed ''State of Georgia By T. G. Hudson, Commissioner of Agriculture,'' in which it is recited that "There being a vacancy in the office of Oil Inspector for the Atlanta District caused by the resignation of Shelby Smith, Oil Inspector, it is hereby ordered that M. E. Tilley of Atlanta, County of Fulton, State of Georgia, he, and is hereby, appointed Inspector of Illuminating Oils for the Atlanta District, said State and County, for a term of two years, said term beginning on the 25th day of April, 1912, and ending on the 25th day of April, 1914, or at the pleasure of the Commissioner; and he is hereby authorized to enter upon the discharge of the dutie's of said Inspector upon making oath and filing bond, as required by law.'' This order is not actually sig'lled by the Commissioner of Agriculture, but there appears at the end of the order the following: "By the Commissioner: J. F . .TOHNSON, Commis,sioner's Clerk.''
70

Third. A bond signed by Mr. Tilley and certain sureties, conditioned as required by the statute, and reciting that: '' M. E. Tilley was, on the 25th day of April, 1912, appointed Inspector of Illuminating Oils, etc."
Fourth. A signed oath of office by Mr. Tilley as Inspector of Illuminating Oils.
A commission was duly issued to Mr. M. E'. Tilley, signed T. G. Hudson, Commissioner of Agriculture, and counter-signed by Mr. Johnson, as Clerk. The commission recites that it is issued in pursuance of the appointment of M. R Tilley as Oil Inspector, etc.
After receiving his commis,sion, giving the bond, and taking the oath of office, as above stated, Mr. Tilley entered upon the discharge of his' duties as Oil Inspector of the Atlanta D~strict.
I am of the opinion that he has been legally appointed and is entitled to the office. The fact that Mr. Hudson did not actually sign the written order of appointment does not prevent the appointment from being a legal one. The statute is silent as to how the appointment shall be made and simply makes it the duty of the Commissioner to fill the vacancy when it shall occur for the unexpired term.
''On general principles the choice of a person to fill an office constitutes the essence of his appointment.'' Throop on Public Officers, page 174.
''An appointment consists in the choice by the appointing power of the person appointed. T'he exercise of the appointing power involves the exercise of discretion, and it must be accompanied by the intention on the part of the appointing offi.cer to place the person of his choice in the position to be filled.'' 29 Cyc. 1371.
I think the records are sufficient to show that Mr. M.
71

E. Tilley wa's the choice of the Commissioner and selected

by him to fill the vacancy occasioned by the resignation of Mr. Smith, and that after his selection he was placed in the position to be filled.

'fhe fact that the records disclose that Mr. Tilley was appointed for two years, rather than for the unexpired term of Mr. Shelby Smith as required by the statute, I do not think vitiates the appointment ab initio, but the

appointee is entitled to hold for the time for which the

Commissioner should have appointed him, that is, for the unexpired term of Mr. Smith. 'fhe tenure of an office depends upon the Act creating the office, and not upon

the order of appointment or the commis,sion issued. The statute distinctly provides that when a vacancy shall

occur it shall be filled by the Commissioner for the unexpired term. A vacancy did occur by the resignation

of Mr. Smith, Mr. Tilley was appointed to fill the vacancy, and the statute fixed the time for which the appointment was made. 'fhe Commissioner could neither extend nor

shorten the time of the holding of his appointee by any act of his. 'ehe legal effect of the appointment is to

make Mr. Til1ey the inspector of oils for the Atlanta district for the unexpired term of Mr. Shelby Smith.

The above views are fully ~sustained by the authori-

ties. Hench vs. The State, 72 Ind. Rep. 297, People vs.

'ryrrell, 87 Cal. 475, Hench vs. Chapin, 110 Ind. Rep. 272, .Jeter vs. State, 1 McCord (R C.) 151, Hoke vs. Field, 73 Ky. Rep. 144, Throop on Public Officers Section 313.

I herewith return all papers received from your office.

Very truly yours,

s. T.

FELDER,

Attorney General.

72

June 20th, 1912.
MR. J. J. CoNNER, Commissioner of Agriculture, Capitol.
Dear Sir-Replying to your request that I indicate to you ''in writing whether or not the Jaw authorizes the appointment of live stock inspectors other than those set forth in Section 2081 of the Code of Georgia, by the Department of Agriculture~ And if so, what official in this department is authorized to make the appoint-
ments~''
The A'ct approved August 13th, 1910, which created the office of State Veterinarian, provides in Section 2 as foUows: "That the duties of the State Ve,terinarian shall be to investigate and take proper measures for the control and suppres1sion of all contagious and infectious diseases among the, domesticated animals within the State under su('h rules and regulations as may be promulgated by him and approved by the Commsi1sioner of A1griculture of Georgia.'' Under this authority the State Veterinarian and the Commissioner of Agriculture in 1910 agreed on and promulgated rules for the employment of persons to work under the State Veterinarian in the control and suppression of contagious and infectious diseases among the domesticated animals, and prescribed in these rules very properly the duties of aH persons so employed and what was to be expected of them by the Department.
From my conversation with you and the State Veterinarian I learn that the men employed under these rules work at the pleasure of the Department, being employed by the month, and are simply employees of the Depart-
73

ment used for the purpose of wssisting in the control and suppression of those contagious and infectious diseases ars contemplated by the statute. They are not officers of the rState and their employment is simply temporary for the purpose of meeting the conditions of the infected districts of the State as the occa'sion seems to require. I think the employment of such help irs clearly within thq bounds and contemplation of the statutes.
The General Assembly evidently did not expect th~ State Veterinarian to personally make all the inspection8 necessary to carry out the purpo,ses of the law as it would be impossible for him to do so on account of the large territority which must be covered, and it wms expected that he should have help in carrying out the directions of the law. He is required to take proper measurers for the suppression and control of the diseases and to do this he must, of course, have help.
Each and all of tlwse employees are engaged for service subject to your approval and may be di,scharged at any time. They are in no way officers of the State, but are simply employees of the Department. The rules heretofore promulgated and approved by your predecessor are now subject to such changets as you and the State Veterinarian may deem advisable.
Trusting the above gives you the information desired, I beg to remain,
Sincerely yours,
s. T. FELDER,
Attorney General.
74

STATE OF GEORGIA, DEPARTMENT OF AGRICULTURE,
ATLANTA.
ATLANTA, GA., Sept. 20th, 1912.
HoN. 'PHos. S. FELDER, Attorney General, Atlanta, Ga.
Dear Sir- Please interpret for my official guidance, Provision, as shown on page 29 of Bulletin No. 51, which I herewith hand you with this letter. Under this provision is it necessary for a physician who was actively engaged in the practice of medicine five years prior to 1889, to have a license from the State Board of Pharmacy, in order to conduct his business legally1 I mean where engaged in the retail drug business. I will thank you for an official opinion. ~With kind regards.
Very truly yours, T. A. CHEATHAM, State Drug Inspector.
Sept. 26th, 1912.
DR. 'I\ A. CHEATHAM, State DTug Inspector, Capitol.
Dear Sir-Replying to your letter of the 20th inst. I beg to say that it is not necessary for ''physicians who are graduates of medical colleges in good standing, and who have been practising medicine for five years prior to October 25th, 188~," to have a license from the State Board of Pharmacy in order to conduct a retail drug business. See Civil Code Section 1726,
Very truly,
T. s. FELDER,
Attorney General.
75

Feb. 19th, 1912.
HoN. M. L. BRITTAIN, State Superintendent of Sehool,s, Oapitol.
Dear Sir-Replying to your letter submitting the question of the State Board of Education as to whether or not it is a violation of the law for members of the Board to accept 'Sample copies of 'school books. I do not think the accepting from publishing houses or dealers of sample copies of school books by the members of the State Board of Education will be a violation of either the spirit or the letter of the law. It is one of the duties of the board to select the text books to be used in the schooJ.s of the State, and the specimen copies which they receive are without value to them personally, and are only used to assi,st them in intelligently performing their official duty in this regard. I do not see any impropriety in the members aceepting sample copies for the purpose named.
Very truly,
s. T. FELDER,
Attorney General.
May 30th, 1912.
HoN. M. L. BRITTAIN, State Superintedent of Schools, CapitoL
Dear Sir-I am in receipt of your letter of the 25th inst. enclosing letter from Mr. E. D. Kelley, of Martin, Ga., a1sking ''how long one must reside in a county before he could be elected to the office of County School Superintendent,'' and I note your request that I answer the question.
76

The question he propounds is one not without diffi-
culty. The answer depends upon whether the County <Superintendent of Schools is a county or State officer. The courts have not yet prussed on the matter. A county officer is required by the Constitution of the State to be a resident of the county in which he offers for election two years. Civil Code 6599. If the County Superintendent .of Schools is a county offi.cer a residence of two years would therefore be required in the county in which he offers for e'lection. I am of the opinion, however, from the investigation I have made that the County Superintendent of Schools is not a county officer but is a State officer. He is a part of the State School System. 'l'he Act of 1911 creating this office treats it as a State office in that it fixes' the tenure of the office at four years while county officers under the Constitution hold their offices for two years. Code 6599, Acts 1911, page 94, Section 14.
The qualifications of the County Superintendent of Schools, as set forth in Section 14 of the Act referred to, a's to residence simply provides that he must ''be a resident of the county in which he offers for election." I think that this provision controls and that it is only required that a person be a bona fidJe resident of the county, no particular time being neces,sary. He must, of course, also be a citizen of the State of Georgia. Civil Code 258.
Very truly,
s. T. FELDER,.
Attorney General.
77

July. 25th, 1912.
RoN. M. L. BRITTAIN, State Superintedent of Schools, Capitol.
Dear Sir~ I am in receipt of your letter of the 22nd inst., which reads as follows:
"On May 7 last, J. C. McEachin, County Superintendent-Elect of Telfair County, failed to take up his commission by rea,son of having accepted a .position in Florida. After a month's interval, the County Board of Education elected T. P. Windsor for the remainder of this four year term. ks you will see by the letter attached, the legality of this election by the Board has been questioned and I shall appreciate the favor if you will give me your opinion on the subject.''
A commis:sion having been issued to Mr. Windsor, and he being in possession of the office, there does not appear to be any question for my decision, but as a courteous reply to your letter I cheerfully give you the law upon the subject as I find it.
The last expression of the Legislature upon the subjed of filling vacancies in the office of County School Commissioner (now County Superintendent), is contained in an Act approved August 15th, 1910, (A1cts 1910, page 76), which reads as follows:
''That in ca1se of a vacancy caused by death, resignation, removal from office or from any cause whatsoever in the office of County School Commissioner in any county of this State, the County Board of Education shall elect a County School
Commissioner for the unexpired term, * *."
Section 264 of the Civil Code provides,
''That all offices in the State are vacated * * By
failing to apply for and obtain commissions or
78

certificates, or by failing to qualify or give bond, or both, within the time prescribed by the laws and Constitution."
Wrom your letter it appears that Mr. McEachin, the County Superin:tendent-eleet, failed to apply for and obtain his commission and, of course, failed to qualify and give bond. This created a vacancy in the office and, under authority of the Act above quoted, it was proper for the Board of Education to elect a per~son in the place of Mr. McE,aohin for his unexpired term, which I understand they did when they elected Mr. Windsor. It appears to me that Mr. Windsor is legally in possession of the office.
Of course, if any person at interest desires to contest his title to the offiiee he has a right to do so in the courts by appropriate proceedings.
Very truly,
T. s. FELDER,
Attorney General.
STATE OF GEORGIA, DEPARTMENT OF EDUCATION'
ATLANTA.
September 12, 1912.
HoN. T. S. FELDER, Attorney General, State Capitol.
Dear Sir-House Bill No. 603, passed during the recent session of the General A1ssembly, provides for uniformity as to term of office of the County School ~Superintendents of the State. The gre~t majority of these assumed their official duties during 1912 and the
79

law seems to be elear concerning them, moving up their terms and making their commissions date from January 1, 1913, to January 1, 1907-a matter of only a few months. There are, however, nine of these officials whose commissions instead of dating from 1912 begin during 1914 and 1915 as follows:
Grady-J. S. Weathers, March 15, 1914. Jenkins-W. V. Lanier, January 18, 1914. Stephens~J. I. Allman, January 6, 1914. Turner-J. T. Moore, January 1, 1914. Ben Hill-R. J. Prentiss, April 16, 1915. Crisp-J. W. Bivins, J anaury 1, 1915. Jeff Davis-T. J. Ellis, January 1, 1915. Tift-R. F. Kersey, January 1, 1915. T'oombs-G. C. Brantley, January 1, 1915.
Please inform me as to whether or not these nme officials also shall have commissions dating from Jranuary 1, 1913, and when they or their successo~s in office must be elected.
Truly yours, M. L. BRITTAIN'
State Supt. of Schools.
tSeptember 16, 1912.
HoN. M. L. BRITTAIN, State Supt. of Schools, The Capitol, Atlanta, Ga.
Dear Sir-I am in receipt of your letter of the 12th inst. in which you ask my interpretation of the Act approved August 19, 1912, to make uniform the term of office of County Superintendents of Schools.
The evident purpose of this Act is to make the terms of office of all Superintendents of Schools begin and end
80

at the same time. That is, to begin on the first day of

January, 1913, and end on the first day of January, 1917.

Section 2 of the A~et provides that all County Super-

intendents whose terms began in 1912 ~shall continue until

the first day of January, 1917. As you say in your letter,

it seems to be plain that the incumbents who entered

upon the duties of their respective offices during the

present year are given an additional tenure and hold

their commissions without further election until the first

day of January, 1917.

T:he effect of the Act upon those County Superi:J?-

tendents who did not begin their respective terms in

1912 is not by any means so clear, but the safer con-

struction would seem to require the holding that the

term of offi.ce of all other County Superintendents of

Schools, that is to say, all those whose terms did not

begin in 1912, shall expire on the first day of January,

1913, and that their successors must be elected at the

coming general election to be held on the second day of

October.

Yours very truly,

s. T.

FELDER,

Attorney General.

September 14, 1912.
RoN. M. L. BRITTAIN, ~State Superintendent of Schools, The Capitol, Atlanta, Ga.
])lear Sir-I am in receipt of your letter of the 12th inst. conveying the request of Professor Jere M. Pound for my opinion ''as to the validity of his membership on the State Board of J<~ducation '' under the facts recited.
Replying thereto I beg to >Say that the Constitution
81

of the State tnaktls it '' th@ duty of th(; Attorney Gener:al to aet as the lt:!gl:tl adviMr bf tht:! Ext:!eutiv~ Department.'' To rtlnder an opirtion on thl:l question ptl:lsented by Pttifesstir Pound wbuid requite that 1 tElview and pass
upon the legality of an executive order of the Governor and certain of his acts as Chairman of the State Board of Education. To do this in the absence of a request from the Governor would be an improper use of my office. Indeed, I am without authority of law to give the opinion unless a request for the same should come from the Governor. T'he duty of the Attorney General in this regard is prescribed by statute, which is as follows:
''lt i!'l th@ duty o the Alttorney General when
required so to do by th{l Governor, ''To give his opinion in writing, or otherwise,
on any question of law connected with the interest of the State, or with the duties of any of the departments.'' Civil Code, Sec. 254. I do not, therefore, deem it proper for me to render the opinion requested by Professor Pound.
Yours very truly,
T. s. FELDER,
Attorney General.
STA'rE OF GEORGIA, DEPARTMENT OF EDUCATION,
ATLANTA.
September 21, 1912.
RoN. THOMAS S. FELDER, Attorney General, State Capitol.
Dear Mr. Felder-I shall appreciate the favor if you
82

will kindly read Section 8, page 455, Georgia Laws of 1900; note too page 78 of the Compilation of Common School Laws, and give me your opinion as to whether or not it i,s legal for the County School Superintendent of Thomas County to pay over to the Thomasville local system the per capita of the State school funds to be credited on tuition accounts.
Truly yours, M. L. BRITTAIN,
State Supt. of Schools.

Sept. 25th, 1912.

HoN. M. L. BRITTAIN, State Superintendent of Schools, Atlanta, Ga.

Dear Sir-I am in receipt of your letter of the 2J,st

inst. asking my opinion upon the legality of an agreement

existing between the Board of Education of Thomas

County and the Board of Education of Thomasville for

the payment to the latter Board of the per capita of the State school fund of those pupils resident in Thomas

County, but living without the limits of the city of Thom-

a,sville, who attend Thomasville public schools, the par-

ents and guardians of such pupils consenting to and

requesting such payment. The facts I gather from your

enclosures.

I do not see anything in the agreement which i~s

violative of the law.

Very truly,

s. T.

FELDER,

Attorney Gene~al.

83

STATE OF GEORGIA, ATLANTA.
November 8, 1912.
HoN. T. 8. FELDER, Attorney General, State Capitol.
Dear Sir-I have a letter from Jefferson County asking whether or not it is legal for a man to serve as Ordinary and as a member of the County Board of Education at the same time.
Section 259 of the Code inhibits a person holding at one time more than one county office. It ~s not clear to me, however, as to the distinction under our laws between a county and a public office and I shall appreciate the favor, therefore, if you will write me whether or not these two positions ean be legally filled by one person at the same time.
'rruly yours, M. L. BRITTAIN'
State Supt. of Schools.
Nov. 8th, 1912.
HoN. M. L. BRITTAIN, State Superintendent of Schools, Atlanta, Ga.
Dear Sir-Replying to your letter of this date I beg to say that there is no statutory inhibition against a person holding two offices, provided they are not both county offices, and provided, of course, that the duties are not incompatible. The 'section of the Code you refer to, viz.: 259, you will observe by a reading of the same,
84

provides that a person shall not hold more than one county office. An Ordinary is not a county officer, but a State officer.
Very truly,
s. T. FELDER,
Attorney General.
July 12th, 1912.
PRoF. J. M. CoLLuM, Principal, Americus, Ga.
My Dear 1Sir--Replying- to your letter in which you ask if students may enter the Ag-ricultural District Schools ''who are not prepared to do Hig-h School work, and if so how low in g-rade work may they enter''; and, second, does ''unity of plan'' as used in the last sentence of the Act creating- these schools mean ''uniformity-the use of the same text books, and the same grade work, or may this 'unity of plan' be followed without the uniform use of books, etc.''
The answer to your first question is found in Section 6 of the .AJct approved August 18th, 1906, creating- these schools, which reads a:s follows :
''That the course of studies in said schools shall be confined to the elementary branches of an Eng-lish education, and practical treatises or lectures on agriculture in all its branches, and the mechanic arts, and such other studies a:s, will enable students completing the course to enter the Freshman cla1ss of the State Colleg-e of Ag-riculture on certificate of the principal.''
It will be observed that there is nothing said in the section in reference to high school work or as to how
85

low in grade a student may enter the school. ''That is elementary which pertains to the rudiments or first principles." In determining the .course of studies for the schools, however, the entire section must be considered. While the first part of the section says ''that the course of studie~S shall be confined to the elementary branches of an English education,'' the last part of the section adds ''and such other IRtudies as will enable student's completing the course to enter the Freshman clas~s of the State College of Agriculture." So, however low in grade a student is permitted to enter the school when he does complete his course therein he must be in a position to enter the Freshman class of the State College of Agriculture on certificate of the principal. This is mandatory.
'Section 1 of the Act provides that ''said schools shall be branches of the State College of Agriculture, a department of the University of Georgia. The general Board of Trustees of the University shall exercise such supervi~sion as in their judgment may be necessary to secure unity of plan and efficiency in said schools.''
I do not think "unity of plan" necessarily means the identical text books, but I ~should think it would require the same grade of work. This, however, is a matter that has been placed very largely in the discretion of the general Board of Trustees of the University of Georgia, as they are required to exercise such supervision as in their judgment is necessary to secure unity of plan and efficiency in said schools.
Very truly yours,
s. T. FELDER,
Attorney General.
86

Feb. 28th, 1912.
HoN. R. E. DAviDsoN, Chairman, Capitol.
Dear Sir-Replying to your letter of this date asking my opinion if the Prison Commission has the authority to rent lands adjoining the Georgia State Reformatory for the purpose of cultivation by the inmates of the reformatory.
The Act establishing the institution directs that: "The inmates of the reformatory shall be employed in agricultural, domestic and mechanical work, and shall be given a reasonable amount of instruction in the elementary branches of an English education." The Prison Commission has the power, under the Act, "to determine in their discretion as to what character or kind of work any particular inmate shall be required at any time to perform.''
If the Commission is not in possession of sufficient lands on which to work those inmates of the reformatory which it has determined shall be worked at agricultnra1 pursuits then, in my opinion, the Commission is authorized to rent lands adjoining the reformatory for that purpose.
Very truly,
s. T. FELDER,
Attorney General.
March 9th, 1912.
HoN. R. E. DAVISON, Chairman, Capitol.
Dear Sir: Replying to your letter of the 7th inst. in the matter of Mrs. Sallie Freeney in which you ask my
87

opinion if Mrs. Freeney, who was sentenced by the court to life imprisonment and later commuted to a term of years in the penitentiary, is entitled to have her commuted sentence reduced for good conduct as provided by law for convicts sentenced for a term of years.
The record discloses that Mrs. Freeney was sentenced by the court to labor in the penitentiary for life, and that she began her service under said sentence on the 14th day of F'ebruary, 1908. On the 24th day of June of the following year an Executive order was entered commuting her sentence to five years in the penitentiary.
Section 1221 of the Penal Code directs the keeping of a record at the penitentiary of the conduct of each convict, and those convicts who demean themselves uprightly and well are entitled to have deducted from the time for which they may have been sentenced a certain number of months for each year, after the expiration of the first year. The section also states that this reduction of time shall apply only to such convicts who have not been sentenced to imprisonment for life.
''To commute'' is defined, ''To exchange for one penalty or punishment another, less severe." W ehster 's Diet. The change of a punishment to which a person has been condemned to a less severe one. Bouvier's Law Diet. The substitution of a lesser for a greater penalty.
"To commute means to change. * * * In its legal
s:ense to commute would seem to change from a higher to a lower punishment.''
Ogletree vs. Dozier, 59 Ga. 800. "Commutation of a punishment is not a conditional pardon, but the substitution of a lower for a higher grade of punishment.''
Black's law Diet. page 236. ''A commutation is not a conditional pardon; nor is it simply the substitution of one punishment
88

for another. In its legal acceptation, it is a change of punishment from a higher to a lower degree, in the scale of crimes and penalties fixed by the
law, * * *"
In re Victor, 31 Ohio St. Rep. 206.
The Supreme Court of Nebraska in re Hall, 34 Nebr. 206, in constructing a good conduct statute of that State, similar to ours, and the rights under it of a convict commuted from life imprisonment to a term of years, reached the conclusion,
''First, That the commutation of a sentence like the one under consideration is not in the nature of a conditional pardon, but the substitution of one sentence for another, and for the purpose of its execution will be treated precisely as if the substituted sentence had been ~mposed by the court in the first instance, provided, of course, it is within the jurisdiction of the court; second, that an order of commutation, like a pardon, should be strictly construed as against the State and liberally in favor of the convict.''
As soon as the Executive order was passed commuting the sentence of Mrs. Freeney its terms fixed the period of her sentence, and it was, by operation of law, substituted for the original sentence. It changed her sen. tence from that of life to five years, thus making her a convict for a term of years instead of for life. The Executive order in this case should be given the same force and effect and treated as if it had been originally imposed by the court, assuming that the court had jurisdiction to pass the same.
The evident policy of the "good conduct" statute is to induce the convicts to submit to the government of the penitentiary authorities, thereby reducing the expense and cost of controlling and guarding them, to encourage
89

them to build up character and to help to bring about their reformation. There would seem to be the same reason for applying the benefits of this statute to prisoners whose sentences have been reduced to a term of years by the clemency of the Governor, as there is for extending it to those originally imprisoned for a term of years.
North Carolina has a "good conduct" statute similar to ours and its Supreme court in construing the swme in regard to prisoners sentenced to life and commuted by the Governor to a term of years decided that the commuted prisoner was entitled to the benefits of the statute.
In re McMahon, 34 S. E. 193'. An order of commutation should be strictly construed as against the State and liberally in favor of the convict, and the same rule applies in the construction of statutes affecting liberty. It is my opinion, therefore, that the provisions of section 1221 of the Penal Code apply to the convict in question and that she is entitled to its benefits, and that there should be deducted from the term of her sentence, as commuted by the Governor, whatever time she may haYe earned by her good conduct.
Very truly,
s. T. FELDER,_
Attorney General.
J\fay -1-th, UH2.
MR. R. E. DAVIDSON, Chairman Prison Commission, ,.Capitol.
Dear Sir: Replying to your letter of the 29th ult in which you ask if it is the duty of the Prison Commis-
90

sion to transfer to the State Farm misdemeanor convicts sentenced thereto under the Act of 1908.
I do not find any statute upon the subject at all. The Act of 1908 simply gives the judges discretion to sentence to the State Farm females and other misdemeanor convicts in lieu of sending such to the chain-gang of the county and no mention is made whatever as to whether the State or county shall pay the cost of transportation from the county to the State Farm.
I understand that from the passage of the Act of 1908 it has been the practice of your department to transfer these misdemeanor convicts to the State far~ just as you do the felony convicts. This construction of the Act and the duty of the Comm~ssion in regard thereto is justified, and I would advise that it be continued until a different direction is given by the Legislature.
Very truly,
s. T. FELDER,
Attorney General.
OFFICE OF STATE GAME AND FISH CoMMISSIONER
OF GEORGIA.
Fitzgerald, Ga.,' Feb. 20, 1912.
RoN. T. S. FELDER, Attorney GeneraL Atlanta, Ga.
Dear Sir: A deputy warden, C. W. Barber, .Jr., of Chatham County arrested two men caught in the act of violating the State Game Law; and who plead guilty to said offense, and retaliated hy having Barber presented for the offense of "assault with intent to murder"; upon
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Barber's trial the jury returned a verdict of''not guilty,'' and wrote in their verdict ''finding the prosecution to be mali'cious'." The County_ Warden employed Col. Robert L. Golding to defend the deputy Wlarden, Barber, and the attorney has presented me with a bill for a fee of $50.00 for his services.
Please write me an opinion as to my duty and right to pay such a claim.
Sincerely, J. E. MERCER,
State Game and Fish Commissioner.
February 22nd, 1912.
HoN. JESSE E. MERCER, State Game and Fish Commissioner, Fitzgerald, Ga.
Dear Sir: I am in receipt of your letter of the 20th inst. and note the question you present. Your authority for paying out funds received by you as Commissioner is found in the Act approved August 20th, 1911, creating the Department of Game and Fish. Unless the Act eontains a provision giving the authority to pay out money for a specific purpose then you have no such authority. I do not find anything in the Act which would seem to authorize the Commissioner to pay the fee of an attorney employed by a warden for services rendered to the warden in defending him in a prosecution brought against him for an assault with intent to murder. The fact that the prosecution against the warden arose as retaliation of a prosecution which the warden had brought for a violation of the game law does "not change the situation.
Very truly,
s. T. Fl<lLDER,
Attorney General. 92

Dublin, Ga., January 3, 1912.
HoN. THOMAS S. FELDER,
Attorney General, Atlanta, Ga.
Dear Sir: Assuming that the special election to be held on the lOth will ratify the action of the December 7th primary, can I immediately take the oath of office as Commissioner of Commerce and Labor and begin the discharge of the duties, or will it be necessary that I wait until the new governor is inaugurated January 24th~
Thanking you for the information, I am, Yours very truly, H. M. STANLEY,

HoN. H. M. STANLEY, Dublin, Ga.

January 5th, 1912.

My Dear Sir: Replying to your letter of the :jrd inst.

The Commissioner of Commerce and Labor under the

first section of the Act creating the department, is elected

at the same time, in the same manner and under the same

rules and regulations as the Governor. 'fhis makes it

necessary for the Legislature to receive and canvas the

returns and declare the result of the election. TbesEo

provisions of the act apply to the special election to be

held on the lOth and you cannot, therefore, take the oath

of office until after the extra session to be held on the 24th at which time the result of your election will be de-

clared by the General Assembly in the same manner as

Governor Brown's election will be declared.

Very truly yours,

s. T.

FELDER.,

Attorney General.

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