REPORT AND OPINIONS
OF THE
ATTORNEY -GENERAL
OF
GEORGIA
FROM JUNE 15, 1915, TO DECEMBER 31, 1916
CLIFFORD WALKER
' Attorney-General
1917
INDEX PRINTING Co., STATE PRINTERS
ATLANTA, GA.

STATE OF GEORGIA
ATTORNEY-GENERAL'S OFFICE
ATLANTA
Han. Nat E. Harris, Governor, State Capitol.
DEAR GoVERNOR :-Pursu~nt to the terms of the law, 1 present herewith the Report of the Attorney-General covering the period from June 26th, 1915, to December 31, 1916.
Publication of this report has been delayed by the litigation involving the State printing.
I herewith furnish a report of the present status of the civil cases to which the State is a party. A list of the criminal cases before the Supreme Court and a list of petitions for receiver for banks filed during the period is also presented.
The report is concluded by written opinions rendered by this Department. The increase of the number of .such opinions is notable. Along with the progress of the State in all other lines its legal business has kept pace. I~ach session of the Legislature has created one or more boards or commissions which are advised by the legal Department. Many oral opinions are rendered to the Department heads; the press of official business being such that it was impossible to reduce them to writing The work has grown beyond the physical limitations of any one lawyer.
I count myself and the State most fortunate in securing the services of Hon. Mark Bolding to January 1st~ 1916, and of Hon. l\L C. Bennet after that time as Assistant to the Attorney-General. These gentlemen are law-

yers of character and rare ability and deserve highest co~mendation for their faithful services to the State.
I particularly call attention to the fact that the steadily-increasing number of matters of a legal nature has brought about the employment of special counsel from time to time. In my judgment this employment should_ be correlated under the legal Department. The dignity of the Department, the proper relation of such matters to the office, as well as considerations of economy and efficiency suggest that all legal matters be referred to the office of the Attorney-General with suitable provision for the necessary assistance. Lawyers who are experts upon matters handled by the important departments of government, as, for instance, taxes, insurance and banking, should be employed. designated to such departments, their surplus tim(' to be devoted to other work of the legal department. Such an organization would result in
a large saving to the State and a' more efficient and satis-
factory accomplishment of its legal work.
The Act of August 8th, 1916, placed upon this Departmentment the duties of enforcing the collection of inheritance taxes. I have associated in each county local counsel who are now engaged in checking over all estates administered since the passage of the Inheritance r:J~ax Act four years ago. All estates liable to payment of the tax will be forced to pay the same. Developments up to this writing indicate that the income to the State through these taxes will be largely increased.
The Act last referred to also made it the duty of the Attorney-General to supervise the books and records of the County Officers of the State looking to their uniformity and general efficiency. The friends of this bill urged &s the most pressing need a modern system of indexing the deed. and mortg~ge records of the Counties. After
4

weeks of investigation and study of the various systems, including personal conferences with the Clerks of Superior Courts who had tested these systems, I adopted the Cott Family Index and through Deputy Supervisors have succeeded in having it installed in over one hundred of the Counties of the State. This is a wonderful improvement over the old index enabling the location of E.ny deed or mortgage in from one to three minutes. The &pirit of the Act will be extended to other records as op- portunity permits and in my judgment vast improvements in the County records will result.
Respectfully submitted, . CLIFFORD '\VALKER, Attorney-General.
The State of Georgia vs. The Tennessee Copper Company, and The Ducktown Sulphur, Copper and Iron Company, Ltd.
A report of this case is found on Page 16 of the Report of Attorney-General Grice for the year 1915.
'l'he, defendant, The Ducktown Company, filed a motion to have the decree theretofore entered against it discharged and vacated. On this motion the Supreme Court ordered evidence submitted by both sides, and after a large amount of testimony was taken and argument had the court handed down the decree found in the report referred to.
Subsequently the said defendant filed its further motion that this decree be modified so as to conform, as it contended, to the report of the Special Inspector appointed by the Supreme Court in that decree. And the State of Tennessee filed its motion, at the same time, for leave to intervene and ask the same modification on behalf of said defendant.
After further argument before the Court the said motions were denied and the decree remained as formerly. The Court handed down a decree in which they granted to the State the
5

injunction sought and on these terms insisted upon by the State in the following decree:
"This cause coming on to be heard on the report of the Inspector heretofore appointed to observe operations of the plant and works of defendant The Ducktown Sulphur, Copper and Iron Company, Limited, and upon consideration thereof
"It is now here ordered, adjudged, and decreed (and all former decrees are accordingly modified) as follows:
"I. That defendant The Ducktown Sulphur, Copper and Iron Company, Limited, hereafter shall not permit escape into the air from its works of fumes carrying more than 45 per cent. of the sulphur contained in green ores subjected to smelting.
"2. That it shall not hereafter from April 10 to October 1 in any year permit escape into the air of gases the total sulphur content of which shall exceed 25 tons- during one day and not more than 50 tons per day shall be permitted to escape at other times.
"3. That it shall keep a daily record of the amount of green ores smelted, sulphur in green ore, acid made, sulphur in acid, and per centum of sulphur escaping so that statements may be compiled therefrom substantially the same as Table 3, page 19, printed report of the Inspector. It shall also keep a weather record showing direction and velocity of wind, humidity, temperature and pressure at intervals of six hours. These records, verified by the oath of a responsible officer or employee of the defendant, shall be reported to the Clerk of this Court immediately after the end of .each calendar month.
"4. That it shall deposit with the Clerk of this Court an additional sum of $125.40 to cover expenses and compensation of Inspector.
"5. That the Clerk shall pay to Dr. John T. McGill, Inspector heretofore appointed, the sum of $3,375.40-$3,000 being compensation for services, and $375.40 to meet expenses incurred in ex cess of payments heretofore made to him.
"6. The costs of the proceedings in the cause from February 24, 1914, to this date will be charged to defendant The Ducktown Sulphur, Copper and Iron Company, Limited; costs accruing prior to February 24, 1914, will be divided equally between Tl1e Ten nessee Copper Company and The Ducktown Sulphur, Copper and Iron Company, Limited.
"7. The cause will be retained on the docket until further order of the court."
APRIL 3, 1916.
Subsequent to this time the State of Tennessee by its Attorney-General filed a motion for modification of this decree,
6

which motion was denied by the Supreme Court of the United
States. The State has prosecuted this cause against this defendant
to a successful conclusion and this phase of the case is prac-
tically ended. As to the other defendant, the Tennessee Copper Company,
I found on coming into office, that the State of Georgia had entered into an agreement with said defendant covering a period from October, 1913, to October, 1916, which stipulation is found in the Acts of 1913, page 1295. At the last regular Hession of the Legislature by Resolution, the Governor was directed to enter into practically the same stipulation with this defendant, said stipulation and agreement being found in the Acts of 1916, page 1056.
I consider it unfortunate that whereas this matter is pending in the Courts in a case wherein both Copper Companies are parties defendants, in actual practice the case is being handled as to one of the defendants in the Judicial branch of the Government and as to the other in the Legislative Department.
I respectfully suggest that the case cannot so proceed in fairness and equity to all,parties. The entire matter should be in the control of the Legislature or left to the decree of the Courts.
On assuming office I found that my predecessor has associated Hon. J. A. Drake and Hon. Lamar Hill of Atlanta as Special Counsel in the taking of testimony and assisting the Attorney-General in representing the State in this cause in -the Supreme Court of the United States. These gentlemen having been of counsel in other cases involving similar questions had peculiar advantage and opportunities and have rendered invaluable services to the State through the present administration.

Mayor and Aldermen of Savannah, etc., vs. Harvey Granger et

al., and Mayor and Aldermen of Savannah, etc., vs. J. S.

Balmer et al.

.

In these cases Granger and others filed a petition in the Superior Court of Chatham County, seeking to injoin the City of

7

Savannah, by its proper officers, from enforcing an ordinance of the City of Savannah, adopted under the Act of the Legislature of 1910 as amended by the Act of 1913, requiring the registration in that city of automobiles and like vehicles, and providing that persons convicted of a violation of the ordinance should be fined in the police court of the City of Savannah. It was claimed that the Acts of the Legislature above referred to, as well as the ordinance adopted thereunder, were unconstitutional for various reasons. The injunction was granted by the Judge of the Chatham Superior Court. The 1\Iayor and Aldermen of Savannah brought the case to the Supreme Court. At the direction of the Governor, I appeared with the able Attorney for the City of ,Savannah before the Supreme Court in behalf of the Mayor and Aldermen, and filed a brief therein as the qu~stions raised involved the constitutionality of the Acts of the Legislature above referred to. The Supreme Court reversed the judgment of the Court below.
J. B. Elwell et al. vs. Peter F. Bahnsen, John F. Fahey et al.
The petitioners in this case brought their petition in the Superior Court of Thomas County against Peter F. Bahnsen, as State Veterinarian, and John F. Fahey, D. 1\I. Adams, R. L. Braswell, and others, as cattle inspectors under the Acts of the Legislature of 1909 and 1910, seeking to enjoin the defendants from carrying into effect or establishing or maintaining any quarantine of the cattle belonging to them in Thomas County and from carrying into effect in any wise the Acts of 1909 and 1910 relating to the eradication of cattle tick in the State of Georgia. Under the Act of 1909 any duly authorized live-stock inspector, acting under the authority of th~ Commissioner of Agriculture, is authorized and required to quarantine any stall, lot, yard, pasture, field, farm, town, city, militia district, county, or any part or the whole of the State of Georgia, when he shall determine the .fact that live stock in such place or places are affected or infected with a cpntagious disease or the cause of the same.
Under the Act of 1910 it is provided that it is the duty of the State Veterinarian to investigate and take proper measures
a

for the control and suppression of all contagious and infectious diseases among the domestic animals within the State, under such rules and regulations as may be promulgated by him and approved by the Commissioner of Agriculture of the State of Georgia, and that he shall assume charge of the work of cattle tick eradication i~ co-operation with the Federal authorities.
Mr. John F. Fahey, one of the defendants, is an agent of the Department of Agriculture of the United States in the work carried on by the Department of Agricu_Iture for the suppression of contagious and infectious diseases among the domestic animals in the United States. He was also acting under the authority of the Act of the Legislature above referred to. The Department of Justice of the United St!ltes assisted the State authorities in defending this suit. Hon. Chas.. D. Russell, an able Assistant District Attorney for the Southern district of Georgia, appeared in the case as Attorney for the defendant, John F. Fahey, as a Federal officer.
The petitioners claim in this case that the Acts of the Legislature of 1909 and 1910 providing for the eradication of cattle ticks in this State are unconstitutional and that the enforcement of the same as against the petitioners was unconstitutional on the ground that there was no necessity for the quarantine and that the quarantine was established without any hearing and that the enforcement of the quarantine deprived the plaintiffs of their property without due process of law and that the quarantine laws were in conflict with the Interstate commerce clause of the Federal Constitution and that compulsory dipping is unconstitutional.
This case came on to be heard before his Honor Judge W. E. Thomas on the fourth day of December, 1916. A great deal of evidence was introduced. After argument the court held that the Acts were constitutional and the injunction was, therefore, denied.
This was an important case as it involved the work of tick eradication in the State. On this subject the General Assembly in 1912 said :
"The annual losses from tick-infestation of our cattle are proven . to be in excess of $6,000,000 annually.
"It has been proven that this pest can be exterminated from any farm, county or State by systematic inspection and disin-
9

fection of all the cattle, and at a cost not exceeding. twenty-five per cent. of the actual annual death losses from tick fever.
"An area greater than four times the size of the State of Georgia has been permanently freed of this pest since 1906, and not a single county having become re-infested after it had. been freed.
"The eradication of the cattle tick is absolutely essential to the development of a profitable cattle industry.
"The development of a profitable and progressive live sto~k industry, the key-stone of intensified and diversified farming, has proven the only successful solution of fighting the boll weevil."

Georgia Railway & Power Company vs. Wright, ComptrollerGeneral.

This suit was brought for the purpo~e of restraining and enjoining the Comptroller-General from seeking to collect taxes on a dam across the Savannah river belonging to the Georgia Railway & Power Company and located in the County of Elbert. The Comptroller-General contended that practically all of this dam was located in Georgia and subject to taxation in Georgia. The Power Company contended that only about 160 feet of the dam, measuring from the Georgia shore, is within the jurisdiction of this State, and that the rest of the dam is within the jurisdiction of South Carolina. The suit, therefore, called for a decision locating the boundary line between the States of Georgia and South Carolina at this point.
This. question required a construction of the Convention of Beaufort, adopted April 28th, 1787. This Convention provided:
"The most northern branch or stream of the river Savannah from the sea or mouth of such stream to the fork or confluence of the rivers now called Tugaloo and Keowee, and from thence the most northern branch or stream of the said river Tugaloo till it intersects the northern boundary line of South Carolina, reserving all the islands in the said river Savannah and Tugaloo to Georgia, shall forever hereafter form the separation limit and boundary between the States of South Carolina and Georgia."
At the particular point in question in the Savannah river the dam. belonging to the Power Company extends from the Georgia shore to a small island which lies in the river and is 35 or 40 feet from the South Carolina :;;hore. The Power Com-

10

. ,_ . : "' ~:

pany contended that the true boundary line between the States of Georgia and South Carolina was the thread or middle channel of the Savannah river regardless of islands, and that, therefore, only 160 feet of the dam was located in Georgia. It further contended that the expression, ''The most northern branch or stream of the Savannah river'' refers to what is now called the Chattooga river, which is the most northerly branch of the Savannah and Tugaloo rivers, the Tugaloo becoming the Savannah river after its intersection with the Keowee river. On the. other hand, the Comptroller-General contended that the expression "the most northern branch or stream of the river Savannah" refers to any branch or stream flowing around the north side or South Carolina side of an island lying in the Savannah river, and that, therefore, practically all of the dam in question is located in the State of Georgia, and subject to taxation therein. The case was tried in the Fulton Superior Court and the injunction was denied. Upon appeal to the Supreme Court it was held that the contention of the Comptroller-General is correct and that all islands in the Savannah and Tugaloo are in Georgia, and that "the most northern branch or stream of the river Savannah,'' as used in the Convention of Beaufort, means a stream passing around the northerly side of any island lying in the river.
This is a very important decision to the State of Georgia. The Savannah is a noble river nearly 300 miles long, and averaging a thousand feet wide from the locality here in question to the sea. There are many islands in the Savannah river, and every island was invoived in this question. A great many of them, perhaps a majority of them, are located in shoaly parts of the river and near falls adapted for water power development. They are constantly growing in importance and value. This decision will eventually. result in adding millions of dollars in value to the taxable property located in this State, as the water power development along this river increases in importance. .
Heimer vs. State of Georgia.
Heimer was convicted of the offense of violating the prohibition law. He appealed from the decision of the City Court of
11

J\1acon to the Court of .Appeals. The Court of .Appeals affirmed the judgment. Heimer then obtained a writ of error to the Supreme Court of the United States complaining that his rights under the Federal Constitution were violated in that the evidence upon which he was convicted was obtained by an unlawful search and seizure. He failed to docket the case in the Supreme Court of the United States and to file the record thereof with the Clerk of this Court on or by the return day for said case. I appeared before the Supreme Court and moved to have the case - docketed and dismissed, which motion was granted and the case dismissed.
Sumter County vs. Cook, Secretary of State of Georgia.
This was a suit brought by the County of Sumter through its proper officers to compel by mandamus the Secretary of State to allow to Sumter County its pro rata part of the automobile tax funds for the year 1915. The. Secretary of State claimed that more than ten per cent. of the automobiles in Sumter County were not returned for taxation for that year, and that for this reason, under the .Act of 1914, Sumter County could receive no part of the automobile tax fund for that year. The County of Sumter contended that the .Act of 1914 was unconstitutional on account of the provision above referred to, the same being contained in Section 6 of the .Act. In this case a new automobile law having been passed, an agreement was reached by which the County of Sumter agreed to accept and the Secretary of State agreed to pay fifty per cent. of the amount of the automobile tax fund claimed by the County upon the basis of rural route mileage. This appears to be an equitable adjustment of the matter in view of the fact that the amount received is less than the amount paid in by the County under the automobile registration .Act. Full justice was done the county by this payment, but at the same time the county was penalized for its failure to comply with the law.
Wright, Comptroller-General, vs. Union Tank Line Company.
This case involved the constitutionality of Sections 989 and 990 of the Code of 1910 which provide a method for determining
12

the number and value of the cars of equipment companies operated in this State. 'l'his method or scheme of the Statute is what is sometimes called the track-mileage basis of apportionment, or what in a general way is termed the unit rule. The Union Tank Line Company is a foreign corporation and owns and rents to the various railroads tank cars to be used in the transportation of oils, etc. It contended that the Unit rule p.rovided in the Statute was illegal and unconstitutional as applied to it for the reason that it claimed that it did not habitually employ in this State the number of cars ascertained by the rule.
The Judge of the Superior Court of Fulton County enjoined the enforcement of the tax assessment. Upon appeal by the Comptroller-General the judgment of the lower Court was reversed, my distinguished predecessor, Hon. \Varren Grice, representing the State. Later the Supreme Court granted a rehearing to the defendant in error. Representing the ComptrollerGeneral, I filed a brief and argument upon the rehearing. Later ,the Supreme Court re-affirmed its former judgment. The case was then sent back to the Fulton Superior Court for final judgment. Final judgment refusing the injunction was rendered in the lower court and the 'tank Line Company again brought the case to the Supreme Court. The case has again been heard in that Court but no decision has been rendered therein.
State of Georgia vs. Louisville & Nashville R. R. Co. et al.
In December, 1915, the Louisville & Nashville Railroad Company and the Atlanta, Knoxville and Northern Railway Company began the publication in the official newspapers of Cobb, Cherokee and Bartow Counties certain notices of an intention _ on the part of these companies to build a branch railroad through these counties from a point on the line of the Atlanta, Knoxville and Northern Railway Company at or near l\Iarietta to a point on the line of the Louisville & Nashville Railroad Company near Cartersville in Bartow County. These notices were being published in pursuance of the provisions of Section 2587 of the Code of 1910. Prior to this time and on October 5th 1914
William J. Morrison and others had filed in th~ office of' Secre~
tary of State an application for a charter for a railroad com-

pany under the name of North Georgia Mineral Railway. This company, when chartered, proposed to build a railroad estimated to be about fifty miles in length and running from the City of Atlanta in a northerly direction through Fulton, Cobb, Cherokee, and Bartow Counties and to a point on the line of the Louisville & Nashville Railroad Company at or near Cartersville. It was conceived that the purpose of obtaining a charter for the North Georgia 1\Iineral Railway Company and of the effort to build the branch road above referred to was to build a line of railway parallel with the Western & Atlantic Railway in violation of the Act of the Legislature approved August 11th, 1915. This Act provides among other things :
"No corporate power or privilege shall ever be granted by the Secretary of State, to any private company to build a line of railway parallel with the track of the Western & Atlantic Railway, or that will depreciate the value of said Western & Atlantic Railway, so long as the same remains the property of this State."
After conferences with the Governor on this subject and with my associate counsel in the matter, Judge Horace l\1. Holden, and Hon. John C. Hart, it was decided to file a petition to enjoin the further proceedings looking to the building of this branch line as well as the further publication of the notices. On December 28th, by direction of the Governor, a petition was filed in the Superior Court of Bartow County on behalf of the State of Georgia against the Railroad Companies referred to and all the newspapers in which the notices were being published in which~ it was prayed that the publication of the notices be enjoined and that the building of the railroad as proposed be likewise. enjoined. Upon the presentation of this petition Ron. . A. W. Fite, Judge of the Superior Courts of the Cherokee circuit, granted a temporary restraining order. The interlocutory hearing was had on the thirty-first day of January, 1916. Upon this hearing the Court granted an injunction as prayed. This injunction is still in force. No exception was taken to the order of the court granting this injunction and the case is now pending in the Superior Court of Bartow County. The defendants in this case contend that the Act of.the Legislature of 1915 prohibiting the building of a railroad parallel to the tracks of .the Western & Atlantic Railroad is unconstitutional on many grounds. Another case, to wit: W. J. Morrison et al. vs. Philip
14

Cook, Secretary of State, involves all the constitutional questions raised in this case. The Morrison case has not yet been decided by the Supreme Court but a decision in that case will determine all the constitutional questions involved in the case of the State vs. the Louisville and Nashville Railway et al.

W. J. Morrison et al. vs. Philip Cook, Secretary of State.

On October 5th, 19H, W. J. Morrison, A. C. King, and others filed in the office of the Secretary of State their petition praying to be incorporated under the name of North Georgia Mineral Railway. The length of the railroad proposed to be built by the corporation whose charter was sought was estimated to be fifty miles and to extend from the City of Atlanta in Fulton County in a northerly direction through the counties of Fulton, Cobb, -Cherokee and Bartow to \Varfords Cross Roads in Bartow County. When it became known to the public that a charter was being sought for the proposed railroad company for the purpose of building the road above referred to, there were many protests by citizens of the State against the granting of the charter sought in the petition and the building of the railroad. Several conferences were held between his Excellency, John M. Slaton, then Governor of Georgia, and the Attorneys representing the petitioners for the charter. The result of these conferences was that an agreement was entered into between the Governor and the petitioners for charter whereby the Secretary of State was to postpone any action upon the petition for charter filed with him until after the General Assembly had met' in regular session in the Summer of 1915, in order that the Legis:' lature might consider the questions involved in the application for a charter.

When the Legislature met in the Summer of 1915 an Act was passed which provides, among other things, that no corporate power or privilege shall ever be granted by the Secretary of State to any private company to build a line of railway parallel with the track of the Western & Atlantic Railway or that will depreciate the value of said Western & Atlantic Railway so long as the same remains the property of this Stat6.

(

. t
r

15

!

Upon the passage of this law the Secretary of State, the Hon. Philip Cook, passed the following order on the petition for charter of the North Georgia l\Iineral Railway Company: "The within' petition denied, this the 12th day of August, 1915, in pursuance of an Act of the General Assembly approved August 11th, 1915. Philip Cook, Secretary of State."
This action upon the part of the Secretary of State was taken upon the belief by him and others that the proposed charter was sought for the purpose of building a railway parallel to the track of the Western & Atlantic Railway and which would result in depreciating the value of the Western & Atlantic Railway.
It was claimed that the charter for the North Georgia :Mineral Railway Company was sought at the instance of and for the benefit of the Louisville & Nashville Railroad Company, and that if said charter should be granted it was intended by the petitioners therefor and the Louisville & Nashville Railroad Company that the latter company would be the real builder and owner and operator of said railroad. It was further contended that the Louisville & Nashville Railroad Company was the owner and operator of a railroad extending from Cartersville by the way of Etowah, Tennessee, to Knoxville, Tennessee, and that this Railroad at Knoxville, Tennessee, connected with the general system of railways owned and operated by the Louisville & Nashville Railway Company, and that this system of railways extends to Nashville, Tennessee; Cincinnati, Ohio; Louisville, Kentucky; Evansville, Indiana, and New Orleans, Louisiana, and covers a large part of the West and Northwest. It was further contended that the Louisville & Nashville Railroad Company owns a majority of the stock of the Nashville, Chattanooga -and St. Louis Railway Company, the present lessee of the Western & Atlantic Railroad. For these reasons it was contended that the building of the proposed railroad from Atlanta, Georgia, to W arfords Cross Roads in Bartow County, which is a point on the line of the Louisville & Nashville Railroad from Cartersville to Knoxville, Tennessee, would completely parallel the tracks of the Western & Atlantic Railroad through its entire length and seriously impair and depreciate, if not practically destroy the value of the Western & Atlanti; Railroad. It was therefore contended that the granting of the proposed charter
16

would be in direct violation of both the letter and the spirit of the Act of the General Assembly of 1915 above referred to.
On the 31st day of December, 1915, the petitioners for a charter for the North Georgia :Mineral Railway Company tiled in the Superior Court of Fulton County, Georgia, a petition for mandamus to compel Philip Cook, as Secretary of State, to issue a charter to the North Georgia l\fineral Railway Company. In this petition it was claimed that the Act of the General Assembly of 1915 was unconstitutional upon a number of grounds. Owing to the very great importance of the case to the interests of the State his Excellency, Nat. E. Harris, Governor, employed Judge Horace l\L Holden and Hon. John C. Hart to assist me in the defense of the case.. The State also had the very valuable aid of Ron. 1\iark Bolding, the able and efficient Assistant to the Attorney-General.
His honor, Judge John T. Pendleton, Judge of the Superior Courts of the Atlanta Circuit, after hearing extended arguments of counsel held the Act constitutional and refused to make absolute the mandamus rule nisi. The petitioners for charter excepted to the ruling of the court in refusing to grant a mandamus absolute and the case was carried to the Supreme Court of Georgia. Extensive briefs have been filed, both by the Attorneys for the State and the Attorneys representing the petitioners and the case has been argued before that court. At the present time the Supreme Court has not handed down its decision in the case.
Robert Kitchens, appellant, vs. J. 0. Hamilton, Sheriff of Washington County, Georgia:
Robert Kitchens, a negro and a resident of the County of Washington, was tried on the tenth day of September, 1914, upon a bill of indictment charging him with the offense of murder for the killing of one H. A. Brantley. He was convicted of murder without any recommendation. He carried the case by writ of error to the Supreme Court of Georgia and the Supreme Court affirmed the judgment of the court below on the fifteenth day of March, 1915.
On May 14th, 1915, Kitchens applied to the District Court of
17

the United States for the Southern District of Georgia for a

writ of habeas corpus. The grounds of the petition were based

upon the following allegations. That the jury commissioners of

Washii:tgton County failed to select and did exclude all colored

persons of African descent from the list of petit jurors and

grand jurors for said county, and that this was done on account of their race and color, although there were a number of colored men in the county who were well qualified to serve either

as grand jurors or petit jurors. He further alleged that the

jury impanelled to try him upon the bill of indictment was

made up exclusively of the white race and all negroes were ex-

cluded because of their color from serving on the jury. He fur-

ther claimed that his counsel was deterred from pleading the above stated facts or challenging the array on the ground of fear and danger of mob violence, and on account of the great

prejudice that existed at the time of the trial between the two

races.

After a consideration of the petition, his honor, Judge Emory Speer, denied the writ of habeas corpus, but allowed an appeal

to the Supreme Court of the United States.



This case came on to be heard by the Supreme Court of the
United States on January 17~h, 1916. By direction of the

Governor I filed a brief in this case in the Supreme Court of

the United States,_ and also appeared and argued the case before

that tribunal.

After a consideration of the case, the Supreme Court handed

down its decision affirming the decision of Judge Speer in

denying th.e writ of habeas corpus, upon the authority of
Andrews vs. Swartz, 156 U. S. 272, and Frank vs. 1\Iangum,
237 u. s. 309.

William A. Wright, Insurance Commissioner, vs. Farmers Mutual Insurance Association.
'l'he Farmers l\futual Insurance Association is an assessment mutual fire insurance association and each of the members thereof is ony of the insurers as well as one of the insured, and each of the members of the association is liable for its con-
18

tracts of insurance after the assets of the association have become exhausted.
The principal office of this association was in the County of Gordon and its members included several hundred residents of the Counties of Bartow, Gordon, Murray, Whitfield and Catoosa.
On the 6th day of May, 1916, certain creditors of this association filed in the office of the Insurance Commissioner their petition under the provisions of the Act of the Legislature approved August 14th, 1914, and praying that the Insurance Commissioner be directed to institute proper proceedings for the appointment of a Receiver for the association. Upon the hearing of this petition by the Insurance Commissioner sitting in connection with the Governor and Attorney-General, all parties consenting, it was ordered that the Insurance Commissioner be authorized and directed to make application for the appointment of the Receiver for the Association. Accordingly I presented to the Superior Court of Gordon County a petition for Receiver, and upon the hearing a permanent Receiver was appointed. The assets of the Company are now being administered under the direction of the Gordon Superior Court and an effort is being made to require the various members of the association to pay to the Receiver the amounts due by them under their insurance contracts.
0. P. Byrd vs. Philip Cook et al.
On August 2nd, 1916, C. P. Byrd filed a petition for injunction against Philip Cook, Secretary of State, William A. Wright, Comptroller-General, and W. J. Speer, Treasurer, such officers constituting the Board of Commissioners of Public Printing of the State of Georgia. Byrd claimed that such Board of Commissioners had published advertisements inviting bids to do the public printing for the State of Georgia for two years beginning August 1st, 1916;. that several persons had submitted bids, including _Byrd, and the Index Printing Company. He further alleged that the Board of Commissioners was about to let the public printing to the Index Printing Company upon the bid submitted by it, and he prayed for an injunction to
19

prevent the awarding of the contract for the public printing to the Index Printing Company. The grounds upon which the injunction was asked were that at the time the bid of the Index Printing Company was submitted, Hon. 1\1. L. Brittain, the State Superintendent of Schools, was a stockholder, director and recording secretary of that corporation, and also that Clifford Walker, the Attorney-General, was a stockholder and dircetor of the company, and that R. C. Norman, Solicitor-General of the Toombs Circuit, was a stockholder in the company. It was further claimed that for the reasons above stated the bid of the Index Printing Company was illegal and void and that no contract for the public printing could be lawfully made with this company,'on account of the following provisions of the Constitution of the State:
"The General Assembly shall provide by law for letting the public printing to the lowest responsible bidder or bidders who will give adequate and satisfactory security for the faithful performance thereof. No member of the General Assembly or other public officer shaH be interested, either directly or indirectly, in any such contract."
This case came on for trial before his honor, Benjamin H. Hill, Judge of the Superior Courts of the Atlanta Circuit, on the 11th day of August, 1916. Upon the trial it was shown that each of the parties above named, prior to the consideration of the bids by the Printing Commissioners, had sold and disposed of all of his stock in the Index Printing Company and was not at that time either directly or indirectly interested in the Index Printing Company. It was further shown that the sale of stock on the part of the parties above named was bona fide and intended to permit the State to receive the advantages of the contract to be made on the part of the State with the Index Printing Company. It was further shown that none of the parties above named had any knowledge that the Index Printing Company had even submitted a bid for the public printing until after the bid had already been submitted and the time had arrived for awarding the contract. It was further shown by undisputed evidence that the cost to the State of doing the public printing under the bid submitted by the Index Printing Company was seven thousand dollars per year less than the cost of doing the same work under the bid submitted by Byrd.
!0

It was further shown that both the Index Printing Company and Byrd had all the equipment and qualifications necessary ior doing the public printing of the State.
Upon the hearing of the case his honor Judge Hill refused the injunction sought by Byrd and he excepted and carried the case by writ of error to the Supreme Court of Georgia. Briefs have been filed in the Supreme Court and the case has been argued but at the present time the Supreme Court has not handed down its decision in the case.
State of Georgia, by Clifford Walker, Attorney-General, vs. Georgia Railway & . Power Company, Fulton Superior Court.
In August, 1916, F. T. Mason and others, who are dealers in crushed stone and similar commodities, filed a sworn relation with the Attorney-General, alleging that the Georgia Railway & Power Company was customarily exceeding its charter powers, by e:ggaging in the business of selling crushed stone and other paving materials in competition with the relators; that owing to the fact that the street railway company could haul the stone, etc., on its own cars without freight charges, it was about to crush out competition and to create a monopoly to itself. The relators represented that since only the State could move in such matters, they would be remediless unless the AttorneyGeneral filed an information asking for an injunction. Upon this sworn relation, in order that these citizens might have their day in court, the Attorney-General filed an information against the Georgia Railway & Power Company. At the hearing the defendant made the point that in this State the Attorney-General did not have the common law power attaching to the office of filing informations in civil matters on the relation of private citizens or on his own motion, but could act in such matters only when directed to do so by the Governor. The trial judge sustained the point and dismissed the petition. The question being one of general importance, an appeal was taken to the Supreme Court, where the matter is now pending.
21

The State vs. The Yaryan Naval Stores Company.
This is a claim for fees for inspecting naphtha used in its manufacturing plant in Brunswick. My predecessor effected a settlement whereby the company agreed to pay $100.00 per month. This agreement was continued for the current year.

In re Macon 'Terminal Company.
This was a case involving the tax for one year upon $1,600,000, the proceeds of bonds issued to construct the new Terminal Station in Macon. This money was deposited in a bank in the City of New York pending the erection of the Terminal properties, a clause in the mortgage making the money available only as the purchase of lands and the erection of buildings was consummated. Mter several conferences, an adjustment of the matter was made which was satisfactory to the Comptroller-General and to the Company.
In re Holcombe.
The audit of the books of the departments of the State Government disclosed a shortage of $4421.78 in the Department of _Keeper of Public Buildings and Grounds.
The keeper charged the default to his Assistant E. E. Holcombe and there was evidence of such defalcation. All of the amount due has been collected and covered into the State Treasury except the sum of $1,403.11 represented by checks on the Fulton National Bank alleged to be forgeries. The Keeper filed suit against the Bank to recover this sum and by agreement the State consented to the suit and is to assist in its maintenance although it has not waived its claim upon the Keeper or his bondsmen as to this balance due. The suit is pending in Fulton Superior Court.

Pursuant to the terms of the Banking Laws of Georgia, at

the request of the State Treasurer, petitions for Receiver were

, , filed by direction of the Governor for the Banks listed below

I:)' it~

,.

22

-

and the affairs of these institutions are now being administered by the Superior Courts.
In conference with State Treasurer Speer, a plan has been worked out whereby insolvent banks are in some instances liquidated by those most interested. This plan has proved remarkably successful and it is believed that many receiverships with attendant costs and large losses will be eliminated.

Bank of Blakely, Blakely, Ga. Bank of Alamo, Alamo, Ga. Bank of Colbert, Colbert, Ga. Bank of Georgetown, Georgetown, Ga. Bank of Toccoa, Toccoa, Ga. (intervention). Farmers' and Merchants' Bank of Lyons, Lyons, Ga. Farmers' and Merchants' Bank of Byromville, Byromville, Ga. Citizens Banking Company of Baxley, Baxley, Ga. Bank of West Point, West Point, Ga. Citizens and Screven County Bank, Sylvania, Ga.
-, .,- - - - ,, .. ?';<:t"'T "'!: .,.,.,..- j
Wm. A. Wright, Comptroller-General, vs. The Georgia R. R. & Banking Company.

In December, 1915, Ron. Wm. A. Wright, as Comptroller-

General of the State, issued fi. fas. against the Georgia Rail-

road & Banking Company for back taxes for eight years on

the following property :

15,000 shares of the capital stock of the Western Railroad of

Alabama, valued at $1,250,000,

$31,000.00 worth of bonds of l\Ionroe Railroad, valued at

$20,000.00.

.

.

$84,000.00 worth of bonds of the Union Point & White 'Flains

Railroad, valued at $25,000.00,

and forwarded the same to the Sheriff of Richmond County

for enforcement. The Comptroller-General, prior to issuing

these fi. fas., had notified the Georgia Railroad & Banking

Company to make returns of this property and they had re-

turned the same_ under protest, fixing the values as above set

out.

23
J

On the first day of January, 1916, the Georgia Railroad & Banking Company filed its bill in equity in the United States District Court for the Northern District of Georgia against Wm. A. Wright, Comptroller-General, seeking to enjoin the collection of these fi. fas., and procured an order from the court requiring the defendant to show cause why the injunction should not be granted. In this bill the contention was made that this stock in the Western Railroad of Alabama was not taxable because the same had been transferred to the Louisville & Nashville Railroad Company and the Atlantic Coast Line Railroad Company as part of the lease which was made to William A. Wadley by the Georgia Railroad & Banking Company in 1881, and by successive transfers had reached the two Railroads above named. When this bill was served the Governor designated Pierce Bros., of Augusta, Ga., and Geo. vVestmoreland, of Atlanta, Ga., as associate counsel, to assist the Attorney-General in defending said suit. An answer was duly filed and the case was argued at length, the AttorneyGeneral and his associates, at the request of the presiding Judge, submitting a printed brief of eighty-four pages, ana the Judge held up his decision until November, 1916, when he filed his opinion, holding that the property was taxable, refusing the injunction and afterward making a decree in accordance therewith, dismissing the plaintiff's bill. So far the Georgia Railroad & Banking Company has not filed any exceptions to the decree of the court, nor applied for any writ of error, but has some months yet in which to do so, if it decides to carry the case to the higher court. The AttorneyGeneral and his associates feel quite confident that the higher court will affirm the judgment below in the event the case is carried to the higher court.
At the same time Wm. A. wright, as Comptroller-General, issued the foregoing fi. fas. against the Georgia Railroad & Banking Company, he issued fi. fas, against the Louisville & Nashville Railroad Company and the Atlantic Coast Line Railroad Company for taxes on $1,075,000.00 of bo,nds deposited by said Railroad Companies as security for the performance of the covenants contained in the lease held by said Railroads for the years 1908 to 1915, inclusive, and the Louisville & Nashville Railroad and Atlantic Coast Line Railroad filed their bill
24

on the equity side of the United States District Court for the Northern District of Georgia against Wm. A. Wright, as Comptroller-General, seeking to enjoin the enforcement of the collection of the taxes on these bonds, and procured an order from said court on the first day of January, 1916, to ~how cause why the injunction should riot be granted, and the Governor designated Pierce Bros., of Augusta, Ga., and Geo. Westmoreland, of Atlanta, Ga., as associate counsel with the AttorneyGeneral, to reprel'l'ent the State in this suit. An answer was duly filed and the case was argued, ap.d in October, 1916, the United States District Judge filed his opinion, holding that this property was not taxable, as the same was on deposit to the Farmers Loan & Trust Company, of New York, and was not within the jurisdiction of the taxing power of this State, and entered a decree in accordance with this opinion.
So it will be seen that the State won the case which the Georgia Railroad & .Banking Company brought, and lost the case brought by the Louisville & Nashville Railroad.
The time to appeal these cases has not expired, and it has not yet been determined whether the State will carry the case which was decided adversely to the higher court.
Capital Cases in Supreme Court.
Pursuant to the terms of the Constitution, I have represented the State before the Supreme Court in the following cases:
Jeffers vs. State. From Douglas. Reversed. Small vs. State. From Chatham. Affirmed. Ashford vs. State. From Berrien. Affirmed. Brown vs. State. From Rabun. Affirmed. Campbell vs. State. From Mitchell. Reversed. Davis vs. State. From Washington. Affirmed. Gibbs vs. State. From Chatham. Reversed. Head vs. State. From Butts. Affirmed. Holden vs. State. From Gilmer. Reversed. Howard vs. State. From Oglethorpe. Reversed. Ingram vs. State. From Randolph. Affirmed. Lee vs. State. From Wilcox. Affirmed.
25

Lundy vs. State. From Meriwether. Affirmed. McKinney vs. State. From Miller. Affirmed. Montford vs. State. From Laurens. Reversed. Newnan vs. State. From Walker. Affirmed. Pollard vs. State. From Glynn. Affirmed. Rhodes vs. State. From Richmond. Affirmed. Richardson vs. State. From Floyd. Affirmed. Sheppard, alias Roberson. From Montgomery. Affirmed. Slappey vs. State. From Macon. Affirmed. Stewart vs. State. From Lee. Reversed. Thomas vs. State. From Wheeler. Affirmed. 'l'homas vs. State. From Mitchell. Affirmed. Westbrook vs. State. From Carroll. Affirmed. Willis vs. State. From Hancock. Affirmed. Andrews vs. State. From Miller. Reversed. Boone vs. State. From Carroll. Affirmed. Chancey vs. State. From Decatur. Affirmed. Higgs vs. State. From Ware. Affirmed. Hurst vs. State. From Jenkins. Writ error dismissed. Jeffers vs. State. From Douglas. Affirmed. Kelly vs. State. From Chatham. Reversed.. Kettles vs. State. From Whitfield. Reversed. Lampkin vs. State. From Decatur. Affirmed.' Lindsey vs. State. From Clay. Affirmed. Milling vs. State. From Meriwether. Writ error dismissed. Moose vs. State. From Decatur. Reversed. , Roberts vs. State. From Lowndes. Reversed. Storey vs. State. From Harris. Affirmed. Tanner vs. State. From Barrow. Reversed. Vincent vs. State. From Oconee. Reversed. Williams vs. State. From Glynn. Affirmed. Williams vs. State. From Turner. Affirmed. Shirley vs. State. From Franklin. Affirmed. Peterson vs. State. From Calhoun. Reversed. McLendon vs. State. From Glynn. Affirmed. Jones vs. State. From Elbert. Writ error dismissed. Hendrix vs. State. From Bulloch. Affirmed. Cotton v,s. State. From Meriwether. Affirmed. Graham vs. State. From Irwin. Affirmed. Smith vs. State. From Jenkins. Affirmed.
26

Franklin vs. State. From Laurens. Reversed. Smith vs. State. From Fulton. Reversed. l\Iathis vs. State. From Dooly. Affirmed. Smith vs. State. From Chatham. Affirmed. Smoot vs. State. From Spalding. Reversed. Waters vs. State. From Laurens. Reversed. Underwood vs. State. From Pike. Reversed. Glawson vs. State. From Bibb. Affirmed. Lott vs. State. From Coffee. Affirmed. Anderson vs. State. From Terrell. Affirmed. Dennis vs. State. From Pike. Affirmed. Scrutchens vs. State. From Bartow. Reversed. Johnson vs. State. From Bibb. Affirmed. Hicks vs. State. From Paulding. Affirmed. Lucas vs. State. From Bibb. Affirmed. Hill vs. State. From Fulton. Affirmed. Mallory vs. State. From Greene. Affirmed. Vincent vs. State. From Oconee. Affirmed. Graham vs. State. From Irwin. Affirmed. Maxwell vs. State. From Berrien. Affirmed. Bell vs. State. From Baker. Dismissed. Patterson vs. State. From \Vare. Affirmed. Vernon vs. State. From Cobb. Reversed.
27

OPINIONS TO THE GOVERNOR

Where there is a vacancy in the office of County Treasurer, it is the duty of the Ordinary to appoint some qualified person to act as .Treasurer, until a special election can be held. for the purpose of filling such vacancy.

June 30, 1915. Hon. C. A. West, Secretary Executive Department;
State Capitol. DEAR SIR: I acknowledge receipt of your request for opinion as follows:
"I am sending you herewith a letter which the Governor has just received from Ron. John A. Cobb, Ordinary of Sumter County, wherein he advises he bas appointed Mr. J. C. Bynum, Treasurer of Sumter County to succeed Mr. P. H. 'Villiams, deceased.
"It is my understanding that the Ordinary is not authorized to make the appointment of a County Treasurer, hut should call a special election for the purpose of filling such vacancy. I would appreciate your opinion at your earliest convenience."

I respectfully submit the following:

Investigation discloses the peculiar status of our law on filling

vacancies in the county offices.

-

Section 4796 of the Code provides that the Ordinary when

sitting for county purposes has exclusive jurisdiction over the

following subject-matters, naming, among others:

"In supplying, by appointment, all vacancies in county offices,

and in ordering elections to fill them."

Section 567 of the Code provides:

"Vacancies (in the office of Treasurer) are filled as vacancies

in other county offices are filled."

Pursuing the inquiry ip.to the methods of filling the vacancies

in other county offices we find in the case of the Ordinary that

it is the duty of the Clerk of the Superior Court to order an

election to take place within 20 days on the fact of the vacancy

being made known to him. Code Sec. 4782.

In case a vacancy occurs (in .the office of County Surveyor)

28

the Ordinary must appoint such surveyor until the vacancy is

fiiled according to law. Code Sec. 592. If a County Surveyor

' ~

derives his authority from appointment he needs no commission

beyona the order of such Ordinary entered on his minutes, of

f

which appointment the Governor of the State must ,be infor~ed

without delay. Code Sec. 593. As t~ County Coroners Section 610 of the Code provides that

Coroners are elected, commissioned and qualified and removed

in the same manner as County Surveyors, and that vacancies

in the office of Coroner are filled as they are in the office of

Surveyors.

In the case of the Clerk of the Superior Court, when a va-

cancy occurs in his office, the Ordinary of the County is required

to call a special election to fill the vacancy. Code Sec. 4881.

The person elected holds the office for the unexpired term.

Sec. 4881-2. As soon as the vacancy occurs, or in anticipation

of it, the Ordinary must appoint some qualified person to fill

the office of Clerk until the vacancy is filled by an election.

Sec. 4884. visions:

But Sec. 4886 of the C, ode makes the following pro-

"When a vacancy (in the office of Clerk) occurs and it is not more than six months from the time the election can be appointed by the Ordinary and held until the existing term will expire, the person or persons appointed shall discharge the duties of the office for the balance of the term and there shall be no special election."

Section 1194 qf the Code provides that vacancies in the office of Tax Receivers are filled as vacancies in the office of Clerk of the Superior Court.
Section 1205 of the Code provides that vacancies in the office of Tax Collector are filled in the same manner as are vacancies in the office of Tax Receiver.
Vacancies in the office of Sheriff are filled as in cases of vacancies in the office of Clerk of the Superior Court, except when there is a failure to appoint as set forth in Code Sec. 4884, the Coroner of the county shall act as Sheriff; and if there is no Coroner the Ordinary shall make a temporary appointment. Code Sec. 4904.
While vacancies in the office of Ordinary are never filled by appointment and while the provisions for the filling of vacan-

29

cies in the offices of Coroner and Surveyor are not so clear1 I a~ of the opinion that in providing that vacancies in the office of Treasurer are filled as vacancies in other county offices are filled_ (Sec. 567) it was intended that the method clearly prescribed in the cases of the Clerk of the Superior Court, Sheriff, Tax Collector and Tax Receiver should be followed, to-wit: a temporary appointment by the Ordinary pending an election to be called by him in case more than six months will elapse from the time the election can be appointed by the Ordinary until the existing term will expire, the appointee to hold office until the expiration of the term in case less than six months will elapse from the time the election can be appointed by the Ordinary until the existing term will expire.
Since it appears that more than six months will elapse from the time of an election can be appointed by Ordinary Cobb until the existing term of Mr. Williams will expire, it is my opinion that it is the duty of Ordinary Cobb to call a special election at once to fill the vacancy in the office of Treasurer of Sumtel County and that under the law it can not be filled in any other way.
It is my opinion further that until the special election can M' called and held for the purpose of filling said vacancy, it is the duty of the Ordinary to appoint some qualified person to discharge the duties of the office. But such person needs no commissioll from the Governor, the or9-er of the Ordinary duly entered upon the minutes being sufficient authority for the performance of his temporary duties. Howev~r, the Governor should be notified of the appointment without delay.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.

The

buildings of the Georgia Industrial School for Colored Youths should be covered by what may be their pro rata part of insurance which the appropriation for insuring public buildings may purchase.

July 2, 1915. Hon. Nat. E. Harris, Governor,
State Capitol, Atlanta. DEAR SIR: I have yours of the 20th ultimo requesting an

30

opinion as to whether or not the Georgia industrial Schooi for Colored Youths should be included in the list of public buildings insured under the appropriation for that purpose.
The Act providing appropriations for the insurance of public buildings, approved August 19th, 1913, declares "that the following sums of money be and they are hereby appropriated for each of the fiscal years 1914 and 1915 for the following purposes." It names, among others, "For insurance on public buildings, the sum of One Thousand Dollars, or so much thereof as may be necessary."
Section 147 of the Code requires the Governor to keep insured the public buildings of the State with certain exceptions.
The intention of the law is to provide insurance for all buildings owned by the State and not specially excepted. The buildings under consideration are not excepted from the operation of the law. The only question is whether or not these buildings are owned by the State.
Section XI of the Act approved November 26th, 1890, establishing the Georgia Industrial School for Colored Youths provides that ''all property purchased under the authority of this Act shall be free from liens or incumbrances, and title to the same as well as to any donations that said Commission shall receive shall be taken in the name of the Trustees of the University of Georgia in their corporate capacity, and said property shall become the property of the State of Georgia, and the same shall not be alienated by any one, nor shall any valid lien be created thereon, neither in the erection of any building thereon, nor by the act of any person, nor by the operation of law.''
Under the above quoted Section of the Act, the Trustees of the University of Georgia hold the legal title to the property of this school as trustees for the State for the purposes named in 'the Act, but the property is the absolute property of the State.
It therefore follows that under the law as it now stands the buildings of this school should be covered by what may be their pro rata part of insurance which the appropriation for insuring public buildings may purchase.
Of course the Legislature could provide that the insurance on these buildings should be purchased solely from the appropriation made for the support of this school and not from the gen-
31

eral appropriation for the purpose of insuring the public build-

ings of the State.

Yours very truly,

CLIFFORD WALKER,
Attorney-General.

Where the grand jury of a county, in their resolutions, pass an order stating that whereas there is dispute relative to the county line between that county and another county and that they recommend "that the necessary steps be taken at once for the permanent establishment of said county line," this is a substantial compliance with the requirements of the law as stated in Code Section 472, and the Governor would be authorized to name a surveyor to define the county lines as provided by said Section of the Code.
July 7, 1915. Hon. Nat. E. Harris, Governor,
State Capitol, Atlanta. DEAR SIR: I have yours of the 7th inst. requesting my opinion as to whether or not you are authorized under the law to name a surveyor to define the lines between the counties of Candler, Tattnall, and Evans, under the provisions of Sections 472 et seq. of the Code under the following state of facts: The Clerk of the Superior Court of Candler County having furnished your office with a certified copy of the General Presentments of that county, containing among other things the following: "Whereas, a dispute has arisen as to the county line between Candler, Tattnall, and Evans counties, we recommend that the necessary steps be taken at once for the permanent establishment of said county lines.'' The Clerk of said court now requests that you appoint a surveyor under the above presentments to define the county lines under the sections above mentioned. The question is whether or not the above presentments comply with the provisions of Section 472 of the Code. The section mentioned provides that whenever the boundary line between two or more counties in this State shall be in dispute, and the Grand Jury of either county shall present that the
32

same requires to be marked out and defined, it shall be the duty

of the Clerk of the court to certify such presentments to the

Governor who shall appoint some suitable and competent sur-

veyor for the purposes mentioned.

While the presentments under consideration do not exactly

and strictly comply with the said section of the Code, in my opinion they are a substantial compliance wit~ said section.

They set forth that there is a dispute as to the county line be-

tween the counties mentioned, and recommend that "steps be

taken at once for the permanent establishment of said county

line." I think that this is substantially equivalent to saying

that the disputed line ''requires to be marked out and defined.''

Altogether they could mean nothing but that an original boun-

dary line between certain counties had become obscure or uncer-

tain, and that the same should be discovered and re-established

according to the met~od provided by law. This is the intent and

purpose of the sections mentioned. I think, therefore, that under

the said presentments you are authorized to name a surveyor to

define the county lines as provided by said section of the Code.

-

Yours very truly,

CLIFFORD WALKER1 Attorney-General.

A member of the State Board of Education who temporarily absents himself from the State is entitled to receive his salary during such absence.

Han. Nat. E. Harris, Governor,

July 12, 1915.

State Capitol, Atlanta.

DEAR SIR: In reply to your request for an opmwn as to

whether or not Professor T. J. Woofter is entitled to receive his

salary as a member of the State Board of Education for the

first and second quarter of the year 1915; when it appears that

during. the said quarters he has been in Europe and has not at-

tended any of the meetings of the said board, as provided by law, I beg to say:

It does not appear from the facts in the case as furnished me

that Professor Woofter lias abandoned the said office, or that the same has been declared vacant.

33

"The right to receive or recover the salary or other compensation attached to an office being vested in him only who i&- by law the duly chosen and qualified incumbent of it, it follows necessarily that when the right of the officer to the office ceases, either through his resignation, removal, misconduct, or abandonment, his right to longer receive the compensation thereupon ceases also."
Mechem's Public Offices and Officers, page 870.
Under Section 264 of the Code of 1910, an office may become vacant by death, resignation, judgment of court, incapacity which shall operate from the time the fact is ascertained and declared by the proper tribunal and removal; that is to say, by the incumbent ceasing to be a resident of the State, or of the county, circuit, or district for which he was elected; in the last case, the removal from the State, the office becoming vacated immediately.
It does not appear that Professor Woofter has ceased to be a resident of the State, but that he is only temporarily sojourning in Europe. His office could not therefore be considered as vacant unless he has ceased to be a resident of the State or has abandoned his office.
Vol. 29 of Cyc., page 1'423, states the law to be that "the fact that officers have not performed the duties of the office does not deprive them of the right to legal compensation, provided their conduct does not amount to an abandonment of the office.'' See also:
Cote vs. Biddeford, 06 1\Ie., page 491. Phillips vs. Boston, 150 Mass., 491. Wardlaw vs. New York, 137 N. Y., page 194. Emmitt vs. New York, 128 N.Y., page 117.
It is my opinion, therefore, that, unless it appears that Professor Woofter has ceased to be a resident of this State, or has abandoned his office, he would be entitled to the legal compensation attached thereto.
The above cited Section of the Code, to wit: Section 264, further provides that an office may become vacant by the incumbent abandoning the office and ceasing to perform its duties, or either.
I think this Section means that to render the office vacant by abandonment, the incumbent must permanently leave the same and cease to perform the duties thereof with the intention to permanently abandon the same and cease to perform its duties.
34

If Professor woofter is in fact only temporarily sojourning in
Europe, probably engaged in study the better to fulfill his duties, with the intention of returning and performing the duties of the office, and with no intention of abandoning the office, or if he is involuntarily detained in that country, the bare fact that for the first two quarters of the present year he has not discharged the duties of the office which he holds would not deprive him of the right under the law to receive the compensation attaching to the office. I think this would certainly be true in view of the fact that no action has been taken by the proper auth~rities- to declare the office vacant, and to appoint his successor.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.

L. W. Scoville, and McLane Tilton, Jr., and L. W. Scoville as executors of the estate of G. W. Scoville, are the persons entitled under the law to a renewal of the lease of what is known as the "ln. dian Spring Reserve," the former lease expiring July 15th, 1915, and the contract and lease submitted with this opinion is in proper legal form.

Hon. Nat. E. Harris, Govern~r,

July 13, 1915.

State Capitol, Atlanta.

DEAR SIR: In response to your request that I look into the

matter of your making, on behalf of the State, a renewal of the

lease of what is known as the ''Indian Spring Reserve,'' to the

present holders of the original lease, I beg to say that I have

made an investigation of the matter and find that the present

lease was authorized by an Act of the Legislature, approved

November 11, 1889, and that said lease was duly executed by his

excellency, J. B. Gordon, Governor of Georgia, on the 15th day

of July, 1890. This lease expires on the 15th day of July, 1915.

The Act of the Legislature authorizing this lease provided that

the person, or persons, holding such lease, at the expiration

thereof, should have the right to re-lease the same for a like

term on conditions of the lease herein provided for.

I also find that J.J. W. Scoville, and McLane Tilton, Jr., and

35

/
L. W. Scoville as executors of the estate of G. W. Scoville, are the persons now holding the said lease, the same having been transferred and assigned to L. W. Scoville and G. W. Scoville, the last named party being deceased. '
I further find that under the law, the persons above named are now entitled to have a renewal of the said lease under the term on conditions of the lease therein provided for.
I have examined the contract and lease submitted with this report, and in my opinion the same is in proper legal form for the purpose of making the lease or re-newal thereof as pr.ovided by the said Act of the Legislature, and that it is legal for your excellency to execute the same as prayed for by the petitioners.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.

Aliens, the subjects of governments at peace with the United States, shall have the privilege of purchasing, holding, and conveying real estate in this State.

July 20, 1915. Hon. Nat. E. Harris, Governor,
State Capitol, Atlanta. DEAR Sm: I have yours of recent date inclosing a letter from the Honorable Robert Lansing, Secretary of State of the United States, wherein he requests information concerning the laws of this State with regard to the right of aliens to hold and inherit real estate in this State. In reply, I will say that I do not find any constitutional provision on the subject. Section 2173 of the Code of this State of 1910 provides:

"Rights of Aliens as to Realty. Aliens, the subjects of govern-

ments at peace with the United States and this State so long as

their governments remain at peace, shall be entitled to all the

rights of citizens of other States resident in this State, and shall

have the privilege of purchasing, holding, and conveying real

estate in this State."

,

The above quoted Section of the Code was enacted in the years 1785 and 1849'.

36

Section 2174 of the Code of this State of 1910 provides:
"Rights to Sue- and Testify. The citizens of other States of the United States, or of foreign States at peace with this State, and friendly Indians, shall by comity be allowed the privilege of suing in our courts or giving evidence therein, so long as the same comity is extended in their courts to the citizens of this State."
The above quoted Section of the Code was enacted in the year 1785.
Section ~175 of the Code of this State of 1910 provides:
"Liens. Aliens may receive and enforce liens by mortgage or
otherwise on real estate in this State."
The above quoted Section of the Code was enacted in the year 1785.
Section 2171 of the Code of this State of 1910 provides:
"Aliens. Aliens are the subjects of foreign governments, not
naturalized under the laws of the United States."
The above quoted Sections of our Code cover all of the provisions of our law relating to the matter inquired of in the letter of the Secretary of State of the United States.
Trusting that I have given you the information desired, I am, Yours very truly,
CLIFFORD wALKER,
Attorney-General.
As the law now stands, the bond of the Treasurer of Lowndes County should be made payable to the Commissioners of Roads and Revenues of said County and should be approved by them.
Atlanta, Ga., July 21, 1915. Gov. Nat E. Harris,
State Capitol, Atlanta. DEAR Sm : I have yours of July 14th, requesting my opinion as to whether the bond of the Treasurer of Lowndes County should be made payable to the Ordinary of that County or to the Commissioners of Roads and Revenues, and also whether such bond should be approved by the said Ordinary or the said Commissioners of Roads and Revenues. Section 292 of the Code of this State of 1910 provides that
37

the bond of County Treasurers "must be approved by the Ortlinary and filed in his office, and by him recorded.''
Section 571 of the Code of this State of 1910 provides that County Treasurers shall ''give a bond payable to the Ordinary of the County,'' etc.
Section 569 of the Code of this State of 1910 provides that the oath of Treasurers must be entered on the Minutes of and filed in the office of the Ordinary, and that his official bond must be filed and recorded in said office.
From the above quoted Sections of the Code it would appear that the Treasurer's official bond of Lowndes County should be made payable to and approved by the Ordinary of said County. This is unquestionably true unless it appears that other provisions have been made legally and constitutionally.
It appears that by an Act approved December 11, 187J, a Board of Commissioners of Roads and Revenues was establi~'led by the Legislature for the County of Lowndes. It does not appear that this Act has ever been repealed. See Acts 1871-7:3, page 227. Section 5 of this Act, among other things, provides:
''The said Board of Commissioners shall have the authority and jurisdiction defined in Section 345 and Section 346 of Irwin's Re~ised Code. They shall have authority to approve all official bonds formally required by law of the Justices of the inferior courts, and sent them by the Governor with the dedimus; to qualify such officers and to deliver them their commissions.''
By reference to Section 346 of Irwin's Revised Code of this State, it will be seen that the inferior courts had practically the same authority and jurisdiction as the Ordinaries now have in counties where no Board of Commissioners of Roads and Revenues has been established, except as to lunacy matters and the administration of estates. Section 587 of the same Code provides that County Treasurers shall "give a bond payable to the Justices of the inferior court of the county, with securities to be by them approved, in a sum which, in their judgment, will bedouble the amount of the county taxes for the ensuing year, receipts from other sources, and cash on hand.''
Section 585 of the same Code provides that the Treasurer's oath of office "must be entered on the minutes of the inferior court and filed in the office of the Ordinary and his official bond must be filed and recorded in said office."
38

It will be seen that under Sections 346 of Irwin;s Revised Code that the inferior courts had original and exclusive jurisdiction, among other things, ''in directing and controlling all the property of the county, as they may deem expedient according to law, and also in levying the taxes of the county."
From the above quoted Sections of Irwin's Code it would appear- that if the Commissioners of this county, under the Act of 1871, have the authority "to approve all official bonds formerly required by law of the Justices of the inferior courts, and sent them by the Governor with the dedimus; to qualify such officers and to deliver to them their commissions,'' to direct and control the county property and levy the county taxes, they would have the authority to approve a Treasurer's bond, and such bonds should be made payable to them; provided Section 5 of said Act is now valid and constitutional. This would further appear to be true for the reason that the Commissioners of Roads and Revenues, under the Act of 1871, were invested with practically the same powers and duties as the Justices of the inferior courts and under the law the Justices of the inferior courts were required to approve these bonds, and the bonds were required to be made payable to the Justices of the inferior courts.
This brings us to the_ question as to whether or not the Act of 1872 is now valid and constitutional. It appears that this Act has been amended several times, ,but that none of the amendments change the provision of the Act relating to official bonds.
It has been suggested that the Section of the Act of 1871 relating to the approval of official- bonds is in violation of Article two, Section four, Paragraph one, of the Constitution of this State providing:
"Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law."
This provision of the Constitution is a part of the .Constitution of 18~7. The law under consideration was enacted prior to the adoptwn of the present Constitution and under the Constitution of 1868. The provision of the Constitution under consideration
39

has reference to laws which might be enacted after the adoption thereof, for it says no special law shall be enacted, etc. This provision does not affect laws which had already been enacted provided they were constitutional at the time they were enacted. In this connection, see the case of Thorpe vs. Butt, Ordinary, et al., 106 Ga. 52, where it is said: "When the .Act of 1872 was passed, the Constitution of 1868 was in force. That Constitution did not contain the same provision as to special legislation as does the Constitution of 1877. It was competent for the Legislature, at that time, to pass a sp"ecial law giving jurisdiction over county matters to the comity judges, and thereby change the general law which gave it to the Ordinary in eve county where no Board of Commissioners of Roads and Revenues had been created.'' In this connection, see also the case of Moore vs. Houston County, 128 Ga. 187. See also the case of Massey vs. Bowles, Sheriff, 99 Ga. 216. See also the case of Burks vs. Morgan, 84 Ga. 627.
The law of 1871, under consideration, was not affected by the provision of .Article 2, Section 3, Paragraph 1, of the Constitution of 1877, relating t~ uniformity in county officers. This provision in the Constitution relates solely to "whatever officers may hereafter be created by the General .Assembly," etc. See in this connection the case of Thorpe vs. Butt, 106 Ga. 52, hereinbefore cited.
It will be seen at a glance that this provision applies to officers "hereafter" created, that is, created subsequently to the adoption of the Constitution of 1877. It could not apply to officers created and jurisdiction conferred before this provision became part of the State Constitution.
It is my opinion under the authorities above cited that Section 5 of the .Act of 1871 was valid and constitutional when it was passed and approved, and that it was not affected by either of the provisions of the Constitution above referred to. If it was valid when passed and approved, it is valid now, since it appears that there is no amendment to the .Act changing this Section.
In view of the authority, powers and duties conferred by the said .Act upon the Commissioners of Roads and Revenues of Lowndes County, construed in connection with the provision of
41

Irwin's Revised Code referred to in the Act relating to the powers and duties of the Justices of the Inferior Courts, I think, that as the law now stands, the bond of the Treasurer of Lowndes County should be made payable to the Commissioners of Roads and Revenues of said County and should be approved by them.
See Art. 12, Sec. 1, Par. 4 of the Constitution. Clark v. Reynolds, 136 Ga. 817 (3, 6, 7, 8).
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
The word "freeholders," as used In Section 2040 of the Code of this State of 1910, means freeholders who are qualified to vote.
July 23, 1915. Hon. Nat. E. Harris, Governor,
State Capitol, Atlanta. DEAR Sm: I have your letter of July 16th, enclosing a communication from Hon. W. M. Wynne, Ordinary of Bleckley County, in which you request an opinion from me as to the meaning of the word "freeholders" as used in Section 2040 of the Code of this State of 1910. Your question is whether the word freeholders as use(! in this Section includes women, minors, and non-resident landowners or whether it includes only male residents of the district who are freeholders, and are entitled to vote. I do not find that this word has been construed by any decision of our Supreme Court. As will appear from many adjudicated cases outside of this
State, when used in a political sense the word freeholder has a
different meaning from what it has when used in contracts, deeds, etc. As used in the Section of the Code under consideration, it has a political signification, and should not be construed by itself, but in the light of proper and relevant circumstances, and in conne~tion with the public policy of the State. The whole policy of this State, so far as established by constitutional and legislative enactment to this time, has been to exclude women from participation in governmental affairs, and from exercising .
41

any influence, by their action or inaction, as of legal right, in controlling any one of its political subdivisions, or the State itself. Under our statutes the word "freeholder," as describing qualifications of appraisers, commissioners, and especial class of jurors, excludes females. In view of the fact that neither minors nor women would be permitted to vote in the election which might be called under the Section of the Code under consideration, I am of the opinion that both of these classes are to be excluded in construing the word "freeholders," as used in this Section.
In this connection see the case of Wray vs. Harrison, 116 Ga. 93.
There are many cases in other States, holding that the word citizen should be con!)trued to mean, one who is recognized by law, as competent to exercise political rights, including particularly the sovereign right _of voting. See Abrigo vs. State, 29 Texas App., 149. School District vs. School District, 63 Ark., 543. Blanch vs. Pansch, 113 Ill., 60. Thomason vs. State, 15 Ind., 449. Blair vs. Kilpatrick, 40 Ind., 312. These decisions, of course, refer to cases in which the word freeholders is used in a political sense. In view of the fact that non-resident landowners could not participate in an election held under the provisions of -Section 2040 of the Code, it is my opinion that they also should be excluded in construing the word as used in this Section. In other words, in my opinion, before the Ordinary of any county would be a.uthorized to call an election under the provisions of this Section, it wouid be necessary that a majority of the male resident freeholders who are qualified to vote should file a petition with the Ordinary, asking for such an election. All minors, females and non-resident freeholders should be excluded in determining whether or not a majority of the freeholders have filed such a petition.
As stated before, I find no decision of our Supreme Court on the subject herein considered. However, almost the identical question was before the Supreme Court of North Carolina, in the c&se of Gill vs. Commissioners, 160 N. C., 176. In this case, the meaning of the word freeholders, as used in a statute providing .for the laying off of special school districts, upon the petition of a certain number of freeholders, was construed to mean freehold~rs of the district who were qualified to vote. The opinion in this
42

case is a very elaborate and well considered one, and cites numerous authorities to sustain the view therein set forth. In addition to the above cited case, there are other cases decide_d by other States of the Union, sustaining in general the principles announced in the Gill case. See 174 Ind., 620; 84 Neb., 230; 27 S. D., 37; 29 Wis., 419; 57 Wis., 147.
Yours very truly,
w CLIFFORD .ALKER,
Attorney-General.

Vacancies in the office of County Surveyor are filled as in the case of Clerk of the Superior Court. Section quoted as to filling vacancies in the office of Clerk of Superior Court.

Gov. N. E. Harris, State Capitol, Atlanta.

Cordele, Ga., July 29, 1915.

DEAR SIR: The man elected for Surveyor of Crisp County moved off and did not qualify. The Grand Jury have recommended that I appoint one. Have I the authority His umixpired term is OV!Jr a year. Which is my duty, to appoint or call an election? Please advise me and oblige.

Very truly yours, S. W. OoNEY,
Ordinary, Crisp County, Ga.

Governor N. E. Harris, State Capitol, Atlanta.

July 29, 191?.

DEAR SIR: In response to your favor of even date, transmit-

ting a letter from Hon. S. W. Coney, Ordinary of Crisp County,

wherein he raises the question whether he has authority to ap-

point a County Surveyor, the Surveyor-elect having removed

from the county before he qualified, I beg to submit the follow-

~g:

.

The question was ruled on in a thoroughly considered opinion rendered to you June 30, 1915. I quote from this opinion:

43

"In case a vacancy occurs in the office of County Surveyor the Ordinary must appoint such Surveyor until the vacancy is filled according to law. Code Section 592. If a County Surveyor derives his authority from appointment he needs no commission beyond the order of such_ Ordinary entered on his minutes, of which appointment the Governor of the State must be informed w!tl;wut delay. Code Section .~93."
Vacancies in the office of County Surveyor are filled as in the case of Clerk of the Superior Court. Such office is filled as follows:
".A temporary appointment by the Ordinary pending an elec tion to be called by him in case more than six months will elapse from the time the election can be appointed by the Ordinary until the existing term will expire, the appointee to hold office until the expiration of the term in case less than six months will elapse from the time the election can be appointed by the Ordinary until the existing term will expire."
Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
When a bona fide resident pensioner of this State dies beyond the limits of the State during a temporary absence from the State the estate of such pensioner is due the amount of such pensions as had accrued and were payable at the time of the death of such pensioner.
July 31, 1915. Hon. Nat. E. Harris, Governor,
State Capitol, Atlanta. DEAR Sm: Yours of July 29th with enclosures in the matter of an appeal to your excellency from a ruling of the Commissioner of Pensions in the cases of Mrs. Valeria Ann Toole and Mrs. Ann M. Douglas has been received. The following facts appear from the papers transmitted to me: Mrs. Toole, the widow of Jasper Toole, was on the pension roll for the year 1915, and had been on this roll for a number of years. She had been a resident of Georgia since 1881, and was such at the time of her death. On April 12th, 1915, she left her home in Augusta, Ga., to pay a visit to her sister who lives in Aiken County, S_outh. Carolina. She was taken sick during
44

her visit and died at the ho;-ue of her sister in South Carolina on the 21st day of April, 1915. She was buried in South Carolina where she died. Her funeral expenses amounted to fiftynine dollars.
Mrs. Douglas, the widow of James S. Douglas, was on the pension roll for the year 1915, and had been a resident of this State since 1883, living at Augusta, Ga. While on a visit to one of her sons in Aiken County, South Carolina, she took sick and died on the 23rd day of February, 1915. At the time of her death she was a resident of the State of Georgia. She was buried in Augusta, Ga. Her funeral expenses and the expenses of her last illness amounted to one hundred and sixty-four dollars.
It further appears that these ladies died after the pensions became due, but before the same was paid to them. The funds for the payment of these pensions has not reverted to the State Treasury.
The question presented is whether or not under the above stated facts the funeral expenses and the expenses of the last illness of these ladies can be paid legally out of the pension funds that had accrued to them for the year 1915, or rather applied to such payment so far as such funds will go.
Section 1504 of the Code of this State, Vol. II, provides:
"In all cases under the pension laws of this State whenever a pension has accrued to any pensioner who dies before the pay ment of the same, the pension commissioner is authorized, and it shall be his duty, to pay the same over to the ordinary of the county of such deceased pensioner; Provided, the pensioner dies in this State and leaves no widow or dependent child or children, or any estate of any kind or value, to be by him paid to his widow, and, if no such widow, applied to the payment of his or her funeral expenses and to such expenses of last sickness as may be shown by sworn statement of such, etc."
It does not appear distinctly that these pensioners had no estate of any kind or value, but as they are said to have been on the indigent pension roll, it may be assumed that they left no such estate.
It will be noted that this Section says that such payment shall be made, "provided the pensioner dies in this state." The question, therefore, is, -should this language be construed to mean "provided the pensioner dies resident in this State."
45

This question is not free from doubt and is one that allows ample room for a difference of opinion. I do not find that this question has ever been presented to the .Attorney-General or that he has ever given an opinion on it. The Commissioner of Pensions has ruled that the payments could not be made unless the pensioners were actually in this State at the time of their deaths. This ruling is unquestionably in accordance with the strict letter of the law. It is possible that this strict interpretation of the letter of the law gives the true intention of the Legislature in enacting the law, and that the law was written as it stands for the purpose of preventing the commission of frauds on the State.
On the other hand, it seems to me that this constructionof the law is not necessarily required under the terms of the .Act taken in connection with all the provisions of our pension laws and that in most cases it would be hardly fair and just, certainly not in accordance with the ,spirit and intention of the pension laws.
All that is required of a person who is entitled to a pension under the law and whose name is on the roll is that he remain a bona fide citizen of the State of Georgia, and a resident of this State. He is not required to remain actually in the State all the time, provided he continues to be a resident of the State. Certainly his pension would not be stopped because he might make a temporary visit to his children or friends in another 'State or might attend one of the Confederate Reunions in another State. The whole spirit and intention of the law seems to be to provide these pensions so long as the pensioner remains a bona fide resident of the State. The very next Section of the Code after the one under consideration, to wit: Section 1505, provides that when a pensioner has been enrolled for the following year and is alive at the date of closing up the pension rolls for such year, but dies before the time the pension becomes payable, his pension shall be paid to his widow, etc. It does not say that he must die actually within this State. Section 1483 of the Code provides for the payment of pensions to pensioners who had left the State, but had returned and become a bona fide citizen of the State. Frequent reference is made all through the pension laws to the matter of citizenship and residence in the State. All other provisions of the laws
46

\_
\
in this respect refer to actual residence in the State and not to the matter of where the pensioner may be actually stopping at any certain time. Under the. law the actual residence of the pensioner is the main consideration and he is permitted to exercise some personal liberty without forfeiting the allowance the State gives him.
A careful reading of the various p~nsion laws as found in our Code will show that for years the lawmaking power has been becoming more and more liberal with these old soldiers. The whole spirit and intention of the enactments seems to be that they shall be dealt with as fairly and as bountifully as the circumstances will permit. It can not be supposed that the Legislature deliberately intended to enact a law that would work an injustice to any of them or their poverty-stricken widows. I can not bring myself to the conclusion that the Legislature ever intended that these indigent widows of Confederate soldiers should be required to stay every minute within the limits of the State and actually die within the State or else lose the funds already provided for them and to which they are entitled in the payment of their funeral expenses and expenses of last illness, and possibly suffer for lack of medical a~tention in their last illness and die and be buried by public charity. This would certainly result in some cases, and I do not think the Legislature ever intended to treat the widows of Confederate soldiers in such manner. Such a construction of the law would mean that if one of these pensioners should stray one foot beyond the boundary of the State to attend to some trifling matter and should be stricken and die just over the line, he would have to be buried in the Potter's field unless his relatives or friends or public charity should provide the funds for his funeral expenses. I think the purpose and intention of the law was to give these pensioner~ a decent burial and provide medical attention in their last illness in case they were at the time of their deaths bona fide residents of the State and otherwise entitled to the same under the law.
.1\frs. Toole and l\Irs. Douglas were bona fide residents of the State at the time of their deaths. Their pensions had accrued and were payable. I assume from the record that they left no estate. They were on a temporary visit to the homes of their children in the State of South Carolina and happell(id to die
47

there. Possibly they were too sick to be brought back to their homes in Georgia. When they left Georgia they expected to return. If all the other necessary facts are shown to exist, I am of the opinion that their pensions may lawfully be applied to the payment of their funeral expenses and expenses of last illness.
Yours very truly, CLIFFORD \VALKER, Attorney-General.
The General Assembly has no power to either create private corporations of any kind or to amend or renew their charters.
August 6, 1915. Han. Nat. E. Harris, Governor,
State Capitol, Atlanta. DEAR SIR: I have your request for an opinion as to the constitutionality of a recent Bill passed by the General Assembly entitled, ''An Act to amend an Act entitled an Act to incor-. porate the Trustees of The Oconee Hill Cemetery; and for Other Purposes." It appears that this bill seeks to amend an Act approved December 7th, 1860, which Act created & corporation under the name and style as that above set forth. It is sought in the bill to amend the said Act to confer certain corporate powers and privileges and duties on the corporation created by the Act of 1860. The question is whether or not the General Assembly has the power under the Constitution to amend the said Act creating the corporation by conferring on the corporation certain powers, privileges, and duties, or in other words whether or not the said bill is constitutional. Under the Constitution of the State of Georgia of 1798 the Legislature of the State had the power to grant corporate powers and privileges to private and public corporations. See Constitution of 1798, Sec. 22. The Act of 1860, therefore; was constitutional at the time it was passed. Under the Constitution of 1861 and 1865 and 1868 the General Assembly had no power to grant corporate powers and privileges to private corporations except to banking, insurance, railroad, canal, navigation, mining, express, lumber, manufacturing, and telegraph companies.
48

The Constitution of 1877, Art. 3, Sec. 7, Par. 18, (Sec. 6446 of the Code), provides :
The General Assembly shall have no power to grant corporate powers and privileges to private companies, but it shall prescribe by law the manner in which such powers shall
. be exercised by the courts. * * All corporate powers and
privileges to banking, insurance, railroad, canal, navigation, express, and telegraph companies shall be issued and granted by the Secretary of State in such manner as shall be prescribed by law.
The corporation involved in this case is a private corporation. See Sections 2190 and 2191 of the Code of 1910.
The bill under consideration certainly seeks to grant corporate powers and privileges to a private company. Under the Constitution of this State the General Assembly has no such power. It only has power "to prescribe by law the manner in which such powers shall be exercised by the courts.'' In Section 2823 of the Code, the General Assembly has prescribed the manner in which this power shall be exercised by the courts. In Section 2823 (6), it is provided :
''The powers conferred in this Section shall extend to the amendment and renewal of all charters contemplated in the Section, within the jurisdiction of said courts, whether the original charter sought to be amended or renewed was originally granted by the General Assembly of the State or by a SuperioL' Court of this State."
It will be noted that under the above quoted paragraph of the Constitution, the General Assembly has no power to grant corporate powers and privileges to banking, insurance, railroad, canal, navigation, express and telegraph companies, but thr.t charters to such companies shall be ''issued and granted by the Secretary of State in such manner as shall be prescribed by law.'' The General Assembly has provided that charters to such companies shall be amended or renewed by the Secretary of .State upon proper application therefor. See Sections 2193, 2194, 2197, 2798, 2201. These Sections of the Code refer tJ corporations that had been created by the General Assembly.
It will thus be seen that under the present Constitution, the General Assembly has no power to either create private corpc.rations of any kind .or to amend or renew their charters. Its
49

powers in that respect are limited exclusively to public corpora-

tions. I am of the opinion, therefore, that the bill under considera-
tion is unconstitutional and that the General Assembly has no

power to enact such a law.

Yours very truly,

CLIFFORD WALKER,
Attorney-General.

An Act of the General Assembly which provides for the abolishment of the office of County Treasurer of a county, but does not provide any means of any kind for the handIing of the cQunty funds, is constitutional.
August 9, 1915. Hon. Nat. E. Harris, Governor,
State Capitol, Atlanta. DEAR SIR: I have your request of today for an opinion on the question whether or not an Act of the Legislature is constitutional which merely provides that the office of County Treasurer of any county shall be abolished but does not provide any means of any kind for the handling of the county funds, or in other words, provides no person by whom, nor any machinery by which the county funds are to be received from the tax-dollector and disbursed as the law requires. Under the Act of the Legislature approved August 14th, 1914, ana subsequently ratified by the people as an amendment to the Constitution of this State, the General Assembly has the power to abolish the office of County Treasurer in any county. The Act of the Legislature which undertakes to abolish the office should pro~ide some method of handling the county funds unless some other method has been provided by law. This is true for the reason that Section 574 of the Code of 1910 provides:
"All county funds are to be paid to, and disbursed by, the County Treasurer except such as may be specially excepted by law, and then to be collected and disbursed as specially directed."
I know of no other officer or officers of the county who are authorized by law to receive or disburse county funds in any
50

county where the office of 'l'reasU:rer has been abolished unless provision is made therefor at the time the office is abolished. Where no such provision is made, the probable result would be that the tax-collector would not be authorized to pay the funds collected by him to any one, endless confusion might result, the business of the county might be paralyzed, and the p'ublic interest suffer. However, I know of nothing in the Constitution which renders a statute void for any of the above reasons. Before a statute can be held unconstitutional it must appear that it contravenes some express provision of the Constitution, or the public policy of the State deducible from the constitutional guarantees and prohibitions. The wisdom, expediency, reasonableness, or justice of a statutory enactment are matters addressed solely to the judgment and discretion of the lawmaking power and the executive power in approving or disapproving suc}l legislation. So far as the Legislature has gone in passing the bills under consic;ieration, it is clearly within its powers under the Constitution. The fact that the laws are incomplete and defective 'does :p.ot render them void or unconstitutional. Under the ruling of the Supreme Court in the case of Puckett vs. Young, 112 Ga. Rep., page 578 (2), I am of the opinion that the bills under consideration are constitutional. As before stated the fact that they are incomplete and defective, I think, is a matter properly addressed to the sound judgment and discretion of the executive power when its approval is sought.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.

There is no law authorizing the Governor to appoint or provide a physician or specialist, to be sent by the State to any county in the State, to testify before a commission or jury in a lunacy trial in _such county.

Hon. Nat. E. Harris, Governor,

August 13th, 1915.

State Capitol, Atlanta.

DEAR SIR: I have before me your favor of even date enclos-

ing a communication from Hon. C. C. Lane, Ordinary of Early

County, requesting that your excellency send a specialist to that

county to testify in the lunacy trial of H. Lee Strickland. It appears that Strickland has been arrested on five warrants charging him with the offense of arson and five warrants charging him with the offense of assault with intent to murder, and that a commission to enquire into his sanity has been issued and set for hearing on the 14th of this month. The Ordinary requests that a specialist be sent by the State to testify before the commission or jury trying the case. There is no law, so far as I have been able to find, authorizing the Governor to appoint or provide a physician or specialist for the purpose indicated. 'rhat is a matter solely fol' the county authorities of Early County. They have authority to provide such assistance in the hearing if they deem it necessary. See 135 Ga. 259.
Yours very truly,
w CLIFFORD .A.LKER,
Attorney-General.
An act of the General Assembly which endeavors to extend the jurisdiction of a municipal corporation beyond the incorporated limits of such city over certain specified territory for the purpose of preserving and protecting the water supply of such city, and for no other purposes, is unconstitutional.
Atlanta, Ga., August 16, 1915. Hon. Nat. E. Harris, Governor,
State Capitol. DEAR Srn: I have your request of August 14th for an opinion as to the constitutionality of certain provisions of an Act lately passed by the General Assembly to amend the Charter of the City of Athens. It appears that Section 6 of the said Act provides that from and after the passage of the same "in order to preserve and protect the water supply of the City of Athens, and to prevent its. contamination and pollution, 'the corporate limits of the City of Athens are hereby extended for police and sanitary purposes so as to embrace that portion of the water shed, etc,'' describing the territory to be included. By Section 7 of the said Act it is provided that the Mayor and Council and the Board of Health of the City shall have power and authority to pass such ordinances in relation to and over said
52

territory as they may deem necessary and proper to _protect the

water supply, and to prevent its contamination, and to secure

the sanitary quality thereof, and to punish violators of the said

ordinances by fine and imprisonment, and further providing

''that the Mayor and Council shall have no authority to levy taxes upon the persons and property in the said territory." It is provided in Section 8 of the said Act that the Mayor and

Council shall have the power to regulate and prohibit the dis-

charge of sewage and other waste matter in the waters of the

said territory, and to abate nuisances, and to prohibit the con-

duct in said territory of any business which may endanger the

public health. The first question is whether the provisions contained in Sec-

tions 6, 7, and 8- of the Act, as set out above, constitute the territory mentioned therein a part of the City of Athens, and

the residents thereof citizens of said City with the right to vote

and subject to all the duties and liabilities of such citizens and

entitled to all the benefits thereof, and if stl, whether such pro-

visions of the charter as provide that no tax shall be levied upon

the persons or property of said territory are unconstitutional and void on account of such exemption from taxation.

If the residents of the territory mentioned are citizens of the

City of Athens under _this Act with all the benefits and liabili-

ties attaching thereto, the said exemption from taxation is un-

constitutional and void. Tarver vs. Dalton, 134 Ga., -page 462

(1).

.

So far as 1 have been able to find the question as to whether or not the Legislature can confer on municipalities police powers beyond their limits or boundaries has not been decided by the Supreme Court of this State. They are creatures of the State, however, and it seems to be universally recognized that the Legislature can confer upon them any powers it may see proper, provided they are not in conflict with the Constitution. It has

been held in many States that the Legislature can confer on municipal corporations the authority to exercise beyond their corporate limits just such powers as are granted in this Act. The general rule is well stated in vol. 28, page 703 (5) of Cyc. as follows:

"The corporation boundaries usually mark tbe limit for the exercise of the police power by the municipality; but in many

63

instances because essential to the statutory performance of police functions, and especially for the preservation of the public health, the municipality is granted police power beyond its boundaries. Thus it has been held that the grant of power to acquire territory for water supply beyond the _limits of the municipality is within the competency of the Legislature, and that the municipality may exercise police power in the protection of the territory thus acquired to insure cleanliness, and prevent any business and conduct likely to corrupt the fountain of water supply for the city. So, likewise, it may acquire outside territory for sewerage purposes, and exercise police power over the same; and also, it would seem, establish quarantine beyond the municipal boundaries and thus protect its citizens from epidemic or "any contagious or infectious disease, as well as locate and regulate houses of detention and hospitals for infectious and contagion~ diseases beyond the city limits."
See also, Dillon on Municipal Corporations, Vol. 1, Sections 352 (n), 354 (n); Vol. 11. 662 (n), 776 (n), 684 (n).
Since the Act under consideration only extends the city limits for police and sanitary purposes and in order to prevent-the contamination and pollution of the water supply, and expressly for these purposes only, it is clear that the intention of the General Assembly was not to extend them for all, or any other, municipal purposes. As residence within the corporate limits confers rights and imposes duties upon the residents thereof, and since the Legislature has the power to confer just such powers on the City in relation to the ''water shed'' as it has undertaken to confer, and since it expressly says that these powers are conferred for police and sanitary purposes, and since the naming of these particular purposes would ordinarily exclude others of a different character, and since the Legislature does not expressly confer any other powers on the City in relation to this territory, I am of the opinion, that no other powers than those necessary for police and sanitary purposes are conferred by the Act, and that residents of this territory are not citizens of the City of Athens and have no right to vote in its elections and are not liable to taxation under its authority.
The next question is whether or not Sections 6, 7, and 8 of the Act are constitutional for the reason that they contain matter. not expressed in the title thereof.
It will be noted that the title of the Act sets out that the Act is for the purpose of amending an Act creating the City of
54

Athens by providing for a registration of voters and for other purposes. Nothing is said about extending the police power beyond the original limits of the said City. If the Act made provisions only for matters relating to the City as then constituted and within its proper corporate limits as then existing, I think the title of the Act would be sufficient. But the Act goes beyond matters ordinarily germane to an amendment to the charter to a city where no notice is given in the title of the amending Act that the corporate powers are to be extended beyond the corporate limits. In such cases, I think, under the law such notice should be given in the title of the Act. Under the decision of the Supreme Court in the case of Blair vs. State, 90 Ga., page 326 (1), I am of the opinion that the Sections of the Act above referred to in relation to the extension of the powers of the City beyond the corporate limits for the purposes named are unconstitutional and void. If the powers of the City can be extended for one mile, they can be ext~nded one hundred miles, and I think under the law, the persons who are to be affected by this extension of the power of the City should be put on notice of the intention to extend such powers. I have not overlooked the case of Richardson vs. l\fayor, etc., of l\facon, 132 Ga., page 122, and the cases therein cited. None of these cases involve the extension of the police power beyond the corporate limits of the City so as to affect persons living outside of such limits. In all the cases where the limits of the municipalities have been extended by Acts amending their charters, notice of such extension has been given in the title of the amending Act. I, therefore, think the Sections of the Act mentioned are unconstitutional and void.
Yours very truly, CLIFFORD WALKER, Attorney-General.

A provision in a municipal charter for woman suffrage in municipal elections is unconstitutional and void.

.

Atlanta, Ga., August 16, 1915.

Hon. Nat. E. Harris, Governor,

State Capitol.

DEAR SIR: I have your request of today for an opinion on

55

the question whether or not a provision in a 1\Iunicipal Charter granted by the General Assembly providing for woman suffrage in municipal elections is valid and constitutional. In reply I will say that in my opinion such a provision in a 1\Iunicipal Charter is unconstitutional and void. It is directly in conflict with the provisions of Art. 2, Sec. 1, and Paragraphs 2 and 4 of the Constitution of this State. It is also in conflict with the provisions of Section 2167 of the Code of 1910 of this State. It is also in conflict with the settled public policy of this State as deduced from the Constitution and laws of the State. See the case of Wray vs. Harrison, 116 Ga., page 93 (1). The qualifications of electors in municipalities must conform to such qualifications as are required by the Cons,titution and laws of the State in State and county elections.. See l\fcl\Iahony vs. Savannah, 66 Ga., page 217 (1). See also Howell et al:vs. Pate et al., '119 Ga., page 537 (1, 2) and authorities therein cited. However, this invalid provision would not necessarily render the whole charter void. White vs. Forsyth, 138 Ga. 753 (6a).
Yours very truly,
CLIFFORD wALKER,
Attorney-General.
There is no fatal variance between the Statement of the crime charged in the requisition proper and that in the affidavit attached to the requisition, when the crime stated in the requisition is that of "obtaining personal property by false pretense" and the crime stated in the affidavit is that of fraudulently obtaining lodging on the faith of a certain check therein described without at the time having funds in the bank on which the same was drawn, said check being worthless.
Atlanta, Sept. 16th, 1915. Hon. Nat. E. Harris, Governor,
State Capitol, Atlanta. DEAR SIR: I have your request for an opinion in the matter of requisition by the Governor of the State of Florida for Chas. G. Groover, claimed to be a fugitive from justice from that State. You wish to know whether or not there is a fatal variance between the statement of the crime charged in the requisition proper and that in the affidavit attached to the requisition.
56

The crime stated in the requisition is that of ''obtaining personal property by false pretense.'' The crime stated in the affidavit is that of fraudulently obtaining lodging on the faith of a certain check therein described without at the time having funds in the bank on which the same was drawn, said check being worthless. All the circumstances are set out in the affidavit. I know of no law which requires the mere representations of the Executive of the demanding State in the matter of naming or designating the crime to comply with all the technical exactness of an indictment. The duly authenticated copy of the affidavit setting out the facts of the alleged crime is controlling regardless of the mere technical name that may be given to the offense in the requisition proper. In Hawley on Inter-State Extradition, page 75, it is said: ''The representations of the Executive of the demanding State are of no effect unless supported by a duly authenticated copy of the indictment found or the affidavit made.''
In the same work, pages 34 and 35, it is said: ''Whether in fact the act is a crime is often one of the questions to be tried, and it can only be finally and conclusively determined in the courts of the demanding State. It is consequently held that the accusation on which the requisition is based will not be scrutinized with technical accuracy. If it charges a crime substantially, the determination of its technical sufficiency as a pleading must be referred to the courts of the demanding State." A number of cases are cited including 69 Ind. 15; 24 Fed. 132; 116 U. S. 80; 33 Hun. 9'9.
In the same work, pages 106 and 107, it is said: "The Supreme Court of the United States has said: 'It must appear, therefore, to the Governor of the State to whom such a demand is presented, before he can lawfully comply with it, first, that the person demanded is substantially charged with a crime against the laws of the State from whose justice he is .alleged to have fled, by an indictment or an affidavit, certified as authentic by the Governor of the State making the demand and second that
the person demanded is a fugitive from the ju'stice' of the 'State
the Executive authority of which makes the demand.' " The above statement of the law is supported by what is said
in Cyc., Vol. 19, pages 89 and 90. On page 90 of this vol. it is said: ''The affidavit must set out the alleged crime with
57

sufficient expiicitness to appri~>e the Governor who receives it
of the facts which constitute the offense. It is not insufficient, however, merely because it is defective in form or has not the technical exactness of an indictment.''
To induce one to cash a check on a bank in which the maker has no funds has been held to be obtaining money under false pretenses, although the maker did not expressly say that the check was good. See State vs. Hammesley, 52 Or. 156; People vs. Wasservogle, 77 Cal. 173; Com. vs. Drey, 19' Pick (.l\Iass.) 179.
In view of the fact that it is stated in the affidavit upon which the requisition is based that the defendant had fraudulently obtained lodging from the prosecutor by means of the worthless check, it appears to me that the crime committed, if any, is that of obtaining goods under false pretenses.
I do not think, therefore, that there is any fatal variance between the statement of the crime charged in the requisition proper and that contained in the affidavit or copy thereof attached to the requisition.
I have not scrutinized the papers in the case to see whether all the other requirements of the law have been strictly complied with as the above point was the o~ly question raised in your request for an opinion.
Yours very truly, CLIFFORD "\VALKER, Attorney-General.
Services rendered the State on special employment of the Governor in the reading of Acts of the Legislature after passage but within the time allowed the Governor to approve or disapprove the same, when it was physically impossible for the Governor and his Secretaries to do the work within the, time limit, is a legal charge upon the State payable out of the contingent funds.
September 20, 1915. Hon. Nat. E. Harris, Governor,
State Capitol, Atlanta. DEAR SIR: I have before me your inquiry as to the legality of the payment out of the Contingent Fund of a bill for services rendered the State on special employment of the Governor in
58

the reading of Acts of the Legislature after passage but within the time allowed the Governor to approve or disapprove the same when it was physically impossible for the Governor and his Secretaries to .do the work within the time limit. I respectfully submit the following .opinion:
Section 318 of the Code provides as follows:
"All persons employed by the Governor for whom no compensation is prescribed are paid, according to his discretion, out of the money appropriated therefor. If no money is thus appropriated, and the employment is indispensable, he has the privilege to pay them out of the contingent funds."
Section 159 of the Code likewise provides:
"And he (The Governor) has power to engage the services of any competent person for the discharge of any duty required hy the laws, and essential to the interests of the State, or necessary, in an emergency, to preserve the property or funds of the State."
It will, of course, be granted that the reading and passing upo~ Acts of the Legislature is not only essential to the interests of the State, but required by the laws of the State. It follows, then, that under the circumstances stated, the employment was indispensable and the bill for such services was and is a proper charge against the State.
A question is raised by the provisions of Code Section 6488 (Article 5, Section 1, Paragraph 19 of the Constitution of the State):
"The Governor shall have power to appoint his own secretaries, not exceeding two in number, and to provide such other clerical force as may be required in his office; but the total cost for secretaries and clerical force in his office shall not exceed six thousand dollars per annum."
Granted that the regular routine work of the Governor's office absolutely requires secretaries and clerical help whose salaries fully exhaust this fixed sum of six thousand dollars per annum, has the Governor the power to employ additional assist~ ance when, in his discretion, such employment is indispe~sable?
From a reading of the Constitutional provision above set out it will be seen that the answer to the question turns upon a construction of the world clerical. In other words it seems clear .that all clerical work of the office must be cared for within the
59

limits fixed by the Constitution, to wit: six thousand dollars per annum.
The Legislature has a right to pass any law not inhibited by the Constitution. The Constitutionality of every Bill passed by the Legislature is, therefore, to be considered by the Governor before he gives his approval thereto. Is the determination of the Constitutionality of an Act of the Legislature a matter of clerical work?
While !t seems to me that the putting of the question serves as a sufficient answer I have interested myself in an examination of definitions of the word ''clerical'' and find the following:

"Of or pertaining to a clerk or penmanship, as 'the clerical

force.' "-Standard Dictionary.

-

"Of or pertaining to a clerk, writer or copyist, as 'clerical

error.' "_c.Jnternational Encyclopedia.

"Of or relating to a clerk or copyist-consisting of clerks, 'the

clerical force,' 'clerical work,' etc."-Webster's Dictionary.

We further inquired into the definitions of the word "clerk" and find the following :
"A person employed in an office for keeping records or accounts. His business is to write or register the transactions of the tribu nal or body to whicf1 he belongs."-Bouvier, 505.
Adopted by N. Y. Supreme Court.-73 N. Y. 442. "A person employed to keep accounts or do writing; a hired assistant in an office. "-Standard Dictionary. "In modern times clerk indicates any one who makes and keeps records, public or private, or one employed in some subordinate position in a ~tore, an office, etc. "-International Encyclopedia. "One who is employed in an office, public or private, to keep records or accounts." "One employed to keep records or accounts, to have charge of correspondence or the like, with or without administrative, P.X ecutive or other authority; a scribe, an accountant."-Webster's Dictionary. "One who attends to correspondence, keeps records or does other writings for others, now often a stenographer. "-Standard Dictionary.
While the term "clerk" has wider significance, it will be seen that running through all the definitions the prevailing and generally accepted meaning of ''clerical'' is the writing of correspondence and the keeping of records and accounts.
As hereinbefore indi~ated the principal object of reading o.f

60

Acts of the Legislature by and for the Governor is to see that the inhibition against the passage of laws contravening the Constitution is respected. Such work is not the work of a clerk; in no sense is it clerical. It is legal work and only a trained, legal mind can do it properly. The interests of the State demand that it be done by one competent to do it and I "am clearly of opinion that a bill for such services is a legal charge upon the State payable out of the contingent funds.
Yours very truly, CLIFFORD WALKER, Attorney-General.
In a' capital felony case, Governor has the right to offer reward of $500.00.
The State vs. Nick Johnson. Request for Offer of Reward. September 30, 1915.
Gov. Nat E. Harris, State Capitol, Atlanta.
DEAR Sm: I have before me your request for an opinion as to your authority to offer a reward of $500.00 in the above stated case. I have to say:
The law as stated in Section 902, as follows: .
"The Governor shall, in his discretion, offer and cause to be paid, rewards for the detection and apprehension of the perpe trator of any felony committed within this State, such reward not to exceed the sum of two hundred and fifty dollars in case of felonies not capital and not to exceed the sum of five hundred dollars in capital felonies."
This case being a capital felony it will be perfectly proper and legal for you to offer a reward of $500.00.
Very truly yours, CLIFFORD wALKER, Attorney-General.
Ill

reference to this bond and no power to relieve the sureties thereon. It is a municipal bond with which the State has nothing to do. The Sections of the Code referred to relate to State and County officers and their bonds. In fact, Section 300 of the Code, which is a part of Chapter three, provides:
"All the provisions of this chapter apply to the oaths of office and the official bonds of all public officers of this State, or those whose office may be established hereafter, unless the contrary is expressly provided."
I do not think Chapter 3, entitled Official Bonds and Sureties Thereon, has any reference to municipal bonds. These are matter for the regulation of the municipal authorities.
Yours very truly,
CLIFFORD WALKER,
Attorney-General
The Governor has authority to employ all the employees used in looking after the Capitol Buildings and Grounds and the Mansion and fix their salaries, except the salaries of the Keeper of Public Buildings and Grounds and the operator of the elevator in the Capitol building.
Atlanta, Ga., October 6, 1915. Hon. Nat. E. Harris, Governor,
State Capitol, Atlanta. DEAR Sm: I have your communication of the 5th inst. requesting an opinion as to authority under the law to employ porters and other help in the Capitol Building and Mansiqn, and also authority to fix the compensation of porters and other help in the Capitol and 1\fansion. In reply I will say that under Section 146 of the Code the Governor has general supervision over all the property of the State, with power to make all necessary regulations for its protection. Under Section 159 of the Code he has authority to employ persons for the discharge of any duty required by the laws. Under Section 157 of the Code he has authority to employ or appoint a person to keep the Capitol grounds and other property of the State at the seat of government. Such person holds only during the pleasure of the Governor. Under Section 170 of the Code it is the duty of the Governor to appoint the Capitol guard. Under Section
62

167 of the Code, he has authority to appoint a messenger for

the executive departme'ut. It will be noted that on page 12

of the Acts of 1913, that the elevator operator is to be ap-

pointed by the Keeper of Public Buildings, and his salary is

fixed by this Act. Section 8 of the Appropriation Bill of the

year 1913, page 24 Acts of 1913, provides ''for ordinary repairs

of public buildings; to purchase coal, wood, lights, furniture for

the executive mansion, and the various,departments of the State

Government; to pay the hire of engineers, guards, watchmen,

servants at the Mansion and such porters for the various de-

partments as the Governor may employ, and for general ex-

penses incident to the keeping in proper condition the public

buildings and grounds and to hire such other labor as may be

necessary, the sum of $26,800.00; out of this appropriation the

sum of $1,800.00 per annum shall be paid to the Keeper of

Public Buildings and Grounds.'' This same Section ~urther

p_rovides: ''The Governor shall require itemized accounts of all

payments out of this fund before drawing warrants therefor."

Taking all of the above cited provisions of the law together,

I am of the opinion that it is the intention of the law that the

Governor shall have supervision and contr.ol over all porters

and other help employed in and about the Capitol Building

and Mansion, and also supervision and control over the com~

pensation of these employees, except where their compensation

is fixed by law, as in the case of the Keeper of Public Buildings

and Grounds, and the operator of the elevator. While it is

probably true that the Legislature did not contemplate that

the Governor would actnally employ all such persons, but that

they would be employed by the Keeper of Public Buildings and

Grounds, under the supervision and direction of the Governor,

I am of the opinion that the Governor has the authority to em-

ploy any or all of them, and to fix their compensation, except

where otherwise specially provided by law. Of course, the com-

pensation so fixed by him would be limited by the Gener~l Ap-

propriation Act.



Very truly yours,
CLIFFORD WALKER,
Attorney-General.

63

Chapter three of our Code, entitled "Official Bonds and Sureties thereon," has reference to State and county officers, and their bonds, and has no reference to bonds of municipal officers.
Atlanta, Ga., November 16, 1915.
Hon. Raymonde Stapleton, Secretary, State Capitol.
DEAR SIR: I have your communication of this date containing a request from the Governor for an opinion on the question of the authority of the Governor to relieve the sureties on the bond of the sexton of Rome, Ga. The application is made under Sections 301 and 302 of the Code of this State, and it appears that the bond is a municipal bond given by the sexton of thP City of Rome to the proper authorities of the City .of Rome f9r the faithful performance of his duties as such sexton. In reply, . I will say that_in my opinion the Governor has no authority with reference to this bond and no power to relieve the sureties thereon. It is a municipal bond with which the State has nothing to do. The Sections of the Code referred to relate to State and County officers and their bonds. In fact, Section 300 of the Code, which is a part of Chapter three, provides:
"All the provisions of this chapter apply to the oaths of office and the official bonds of all public officers of this State, or those whose office may be established hereafter, unless the contrary is expressly provided."
.I do not think Chapter 3, entitled Official Bonds and Sureties Thereon, has any reference to municipal bonds. These are matter for the regulation of the municipal authorities.
Yours very truly, CLIFFORD WALKER, Attorney-General.
Foreign Consuls, Vice-Consuls, and their secretaries are subject to the license tax and other requirements of the law regulating the operation of motor vehicles.
Atlanta, Ga., January 4, 1916. Hon. Nat. E. Harr~s, Governor,
State Capitol, Atlanta. DEAR SIR: I have your request for an opinion as to whether or not under the provisions of Article 111 of the Consular Con-
64

vention concluded on December 11th, 1871, between the United States and the German Empire, the Secretary of the German Imperial Consul stationed in Atlanta, Ga., is subject to the license tax and other requirements of the Act of the General Assembly approved November 30th, 1915, providing for the regulation of motor vehicles in this State. Said Article 111
reads as follows:
Art. Ill. The representative, Consuls general, Consuls, ViceConsuls, Consular-Agents, as well as their chancellors and secretaries, shall enjoy in the .two countries all privileges, exemptions and immunities which have been granted or may in the future be granted, to the agents of the same rank of the most favored nation. Consular officers not being citizens of the country where they are accredited, shall enjoy in the country of their residence, personal immunity from arrest or imprisonment except in the cases of crime, exemption from military billetings and contributions, from military service of every sort, and other public duties, and from all direct or personal or sumptuary taxes, duties and contributions, whether Federal, State or municipal. If, however, the said consular officer,; are, or become, owners of property in the country in which they reside, or engage in commerce, they shall be subject to the same taxes and imposts, and to the same jurisdiction as citizens of the country, property holders, or merchants. But under no circumstances shall their personal income be subject to any tax. Consular officers who engage in commerce shall not plead their consular privileges to avoid their commercial liabilities. Consular officers of either character shall not in any event be interfered with in the exercise of their official functions further than is indispensable for the administration of the laws of the country.
In reply to your inquiry, I will s~y that in my opinion the said Secretary is liable to all the requirements of the motorvehicle law, including the license fee provided for therein, for the following reasons :
The motor-vehicle law is merely a police regulation. Its purpose is the regulation of the operation of such vehicles in this State. The caption of the law is as follows:
An Act providing for the annual registration and identification of motor-vehicles and motorcycles; regulating their use upon the public streets and highways of this State; requiring chauffeurs to obtain a license to operate such vehicles; to provide for the distribution of the fees collected hereunder among the counties of this State; to make the Secretary of State Commissioner of motorvehicles; to provide expenses for operation and enforcement of
65

law; to prescribe penalties for the violation of the provisions of this Act; -to provide for the employment of a clerk and inspector of motor-vehicles; and repealing all laws and parts of laws in conflict with this Act, and for other purposes.
The purpose of this law is not to provide revenue, but to regulate the operation of these vehicles. The act makes the violation of any of its provisions a misdemeanor. See Section 23 of the Act. Its purpose is to protect the citizens, streets and highways of this State from the dangers incident to the operation of such instrumentalities. The license fee is merely incidental and a part of the general scheme of police regulation. Certainly the Consuls, Vice-Consuls and their Secretaries are subject to the criminal laws and police regulations of the State. Under the provisions of the convention they are subject to ar.rest for violations of the criminal laws. If it costs the Secretary some small amount to secure a tag and number for his car, this license fee is not a tax and stands upon the same footing as the cost of other accessories for his car required under the law, as for instance, certain kinds of lights, mufflers, horns, etc. He is required under the law to provide these things as a condition precedent to the right to .operate his car, and a failure to do so is a violation of the criminal laws of this State.
Very truly yours,
w CLIFFORD A.LKER,
Attorney-General.
The Governor is empowered to grant _reprieves and pardons as a matter of grace, subject to no limitation except as to the manner of applying therefor, except in cases of treason and lm peachment.
January 29, 1916. Hon. Raymonde Stapleton, Exec1~tive Secretary,
State Capitol, Atlanta. DEAR Sm: I have before me your favor of even date and asking my opinion in the matter of application for pardon. I note you advise that the Prison Commission has recommended that the applicant's sentence be commuted to present service and upon conditions named by the Commission. In response thereto I beg to say that it is my opinion that the Constitution of Georgia empowers the Governor to grant
66

reprieves and pardons as a matter of grace, subject to no limitation except as to the manner of applying therefor, and except in cases of treason and impeachment.
Since the Governor may grant an absolute pardon it follows by the terms of the Constitution (Article 5, Section 1, Paragraph 12) that he may "commute penalties," "remit any part . of a sentence," or grant a conditional pardon upon such terms as may appear to be to the best interest of the State and of society. The Courts have gone so far as to hold that although the Governor cannot banish a citizen from his State against his will, the Governor may grant a pardon on condition that the convict voluntarily leave the State and remain outside the State.
Under the law of Georgia, the Legislature, under the authority of the clause ''subject to such regulations as may be provided by law relative to the manner of applying for pardons," has providedthat the applications should be filed through the Prison Commission upon such reasonable terms as may be prescribed by that Commission. This law is constitutional and valid and the application for pardon must be presented through the Prison Board to be acted upon by that body in its capacity as advisory to the Governor. While it is inconceivable that such conditions should arise, if the Prison Board s!wuld see fit not to act upon an application or delay the hearing upon the same for an unre11sonable time, the Governor could take the application in hand and act thereon because the constitutional provision granting to the Legislature the authority to prescribe rules relative to the manner of applying for pardons cannot be employed to deprive the Governor of the superior power of granting pardons.
While it is the right if not the duty of the Prison Commission to make any recommendations as to pardons, reprieves, commutations or conditional pardons, and while the Commission is well within its authority in suggesting the conditions upon which the commutation in the case now before the Governor should be granted, the Governor is not strictly bound thereby. He may grant an absolute pardon; he may grant the pardon upon the terms suggested by the Prison Commission; he may alter or change the terms; or add conditions thereto. As stated before, the basis of pardons coming down from the time of our English forefathers is the grace of the Governor
67

who takes the place of the Crown in the old English laws, and that power cannot legally be abridged with the one exception hereinbefore referred to.
I trust the foregoing fully an~nvers your inquiry. I have not taken the time to cite authorities because of the extremely exacting stress of public business before this office, but must be con-
tent to say that in my opinion the principles herein announced
are supported by legal authority. Very truly yours, CLIFFORD wALKER, Attorney-General.-
If a prisoner is serving a sentence for a term less than life for either of the offenses of treason, arson, rape, or assault with intent to rape the Governor of the State may grant him a parole or conditional pardon if the other requirements of the law have been complied with by him.
Atlanta, Ga., February 11, 1916. Hon. Raymonde Stapleton, Executive Secretary,
State Capitol, Atlanta. DEAR SIR: I have your communication of the lOth inst. containing a request from the Governor for an opinion on the following question: Can a parole or conditional pardon be granted under Section 1224, Article 2, of the Code of t_his State to a person serving a sentence for treason, arson, rape, or assault with intent to rape, although the sentence be one for less than life? In reply I will say that according to the express terms of the section referred to, no parole or conditional pardon can be g~anted to a person serving a life sentence for any of the offenses mentioned above. If the prisoner is serving a sentence less than a life sentence for any of the said offenses there is no inhibition in the statute against allowing him a parole or conditional pardon if the other requirements of the law have been comJ.>lied with by him. The statute says ''no parole shall be granted to any one serving a life sentence" for certain offenses. It does not say that no parole shall be granted' to one serving a sentence less than a life sentence for these offenses. The sentence above quoted as well as the sentence immediately following that in Section 1224 of the Code is dealing only with "life sentences," and the letter thereof provides that persons serving life sentences
68

for crimes other than treason, arson, rape, or assault with intent to rape, may be granted paroles when they have served at
least ten years under said life sentence. These two provisions ol
the Code mean, in my opinion, that persons serving life sentences may be granted paroles when they have served at least ten years under the sentence, except that no person who is serving a life sentence for treason, arson, rape, or attempt to rape shall receive a parole at all. The mere fact that as the law now stands there is no "life senten.ce" for the crimes of rape or attempt to commit rape would not change this construction of the law where the law itself is not ambiguous. The most that can be said of that is that it is merely an oversight of the Legislature. There may be "life sentences" imposed by the courts for the crimes of treason and arson. In. fact the degree of punishment to be inflicted for the crime of rape is left very largely to the discretion of the jury trying the case and to the court. See Sections 94 and 98 of the Penal Code. Under certain circumstances a person convicted of this crime may be punished by imprisonment for 'not more than a year. Where such broad discretion is given to the judge and jury in such cases, it is hardly to be supposed that persons convicted of this crime were intended by the Legislature to be entirely excluded from all executive clemency and especially where they have not so provided in clear and unmistakable terms.
Yours very truly,
CLIFFORD wALKER,
Attorney-General.-

The State is not liable for the expenses of judges of the Superior Court where, for any reason, one such judge exchanges services with another.

Hon. Nat. E. Harris, Governor,

February 18, 1916.

State Capi(ol, Atlanta.

DEAR Sm: I have before me your request for opmwn in

reference to the payment of expenses of judges of the Superior

Court who relieves other judges. Replying thereto I beg to ad-

vise that the law covering such cases is found in Sections 4842

and 4844. The language of 4842 is as follows:

"Whenever it shall be made satisfactorily to appear to the
69

Governor that any regular term of the Superior Court, as fixed ' by law in any county of this State, will not be holden or con-
tinued in session because of the bodily or mental sickness or other disability of the Judge . . . then and in that event it shall be the duty of the Governor to name and assign a Judge, etc."
Section 4844 reads as follows:
"The actual expenses of the Judge thus holding the court outside of his circuit by direction of the Governor, including costs of transportation and hotel bills, shall be by the Governor paid to such Judge out of the contingent fund."
Interpreting the words italicized, to wit, "bodily, or mental sickness or other disability," I am of the opmion that only providential causes were intended to be recognized. Illness (physical or mental) of the Judge or members of his family or death in the family compelling him to remain af home, should be recognized. It is true that the words "other disabilities" are somewhat general, and I would not undertake to limit the instances which might possibly arise, but I am quite clear that the Section was not intended to cover instances where for any reason one judge exchanges services with another judge.
Yours very truly,
CLIFFORD wALKER,
Attorney-General.
It is the Governor's duty to supervise the bond& given by Tax-Col, lectors, pursuant to Sections 1207 and 1208 of the Civil Code, and to require additional security whenever he deems it necessary, and also to pass upon all applications for relief from such bonds.
March 2, 1916. Hon. Nat. E. Harris, Governor,
State Capitol, Atlanta. DEAR Sm: I have before me your f~vor of even date asking my opinion as to whether Sections 301 and 302 of the Civil Code of 1910 apply to bonds given by Tax-Collectors pursuant to Sections 1207 and 1208 of the Code. In response thereto I beg to say: Section 1208 provides as follows :
"Such bond for county taxes when given must be approved by the Ordinary, filed in his, office,-and in all respects is an official bond."
70

Section 30l contains the foiiowing provision: .
"When the surety to any bond, given by any officer for the performance of any public duiy''-he shall proceed for relief in the manner prescribed.
I am aware of the apparent conflict in reason; it would seem that the Ordinary should act in such cases; moreover, the Executive Office is overwhelmed with work necessary to the carrying on of the business of the State. However, the language of the Section 301 is plain. I have been unable to find any provision of the law authorizing the Ordinary or any authority other than the Governor to grant such relief. I am 'strongly of the opinion that the law should be amended, but finding it as it is written it is my opinion that the Governor should act upon such applications.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
The prohibition law passed by the Extraordinary Session in 1915 makes no provision for the disposal of the stock of near beer or other prohibited liquors on hand immediately after the passage of the law.
April 3, 1916. Hon. Nat E. Harris, Governor,
State OapitoE. DEAR SIR: I have your letter of March 31st, enclosing a letter from Hon. John A. Cobb, Ordinary of Sumter County, Georgia, in which the Ordinary has requested my opinion on the rollowing questions: Immediately after May 1, 1916, will the near beer dealers in this State be allowed to ship out of the State any near beer they may have on hand on that date? In reply will say that there is no law of this State which prohibits these near beer dealers from shipping near beer out of the State. However, the further question arises whether or not near beer dealers who have in their possession near beer on May 1, 1916, above the quantity allo~ed by the law will be guilty of a violation of the law. In answer to this question I will say
71

that Section seven of the Act number three approved November 17, 1915 (Acts Special Session, page 82), and Section sixteen of Act number four approved November 18, 1915, (Acts Special Session, page. 100) prohibits absolutely any person having in his possession more than one gallon of vinous liquor, six gallons of beer or one-half gallon of whiskey at any one time or during a period of thirty days. This amount can only be kept in places used exclusively for residential purposes. I am of the opinion, therefore, that if these near beer dealers have in their possession after twelve o'clock p. m. April 30, 1916, near beer in amounts greater than that indicated above they would be guilty of a violation of the laws above referred to. These laws make no provision for the disposal of the stock of near beer or other prohibited liquors Qn hand after twelve o'clock, April 30, 1916.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
No convict can be restored to the rights of citizenship, including the right to vote and hold office, except by full and complete pardon granted by the Chief Executive of the State.
April 4, 1916. Hon. Nat. E. Harris, Go.vernor,
State Capitol, Atlanta. DEAR SIR: I have your request of recent date for an opinion on the following matter, to-wit: Heretofore in certain cases -the Governor has issued orders in regard to certain convicts serving sentences in the penitentiary in this State, providing, among other things that the term of service of the named convict "is hereby commuted to present service and it is further ordered that he be discharged from custody." The question is whether or not under such an order the person receiving the same has had his rights of citizenship restored to him, including the right to vote, or whether it is necessary in order to entitle him to vote that a formal pardon be granted to him. In reply I will say that in my opinion where it is ordered by the Governor that a sentence be commuted to present service and that the person is discharged from custody, such order
72

is nothing more than a ''commutation of sentence.'' A ''commutation of sentence" is defined to be "the change of a punishment to which a person has been condemned to a less severe one." See Cyclopedia of Law and Procedure, Volume 29, page 1561, citing many authorities.
The Governor of this State under the Constitution- has the authority to ''commute penalties, and to remit any part of the sentence for offences against the State." See Article 5, Section 1, Paragraph 12 of the Constitution.
Article 2, Section 2, Paragraph 1 of the Constitution of this State provides, among other things, that the following classes of persons shall not be permitted to register, vote, or hold any office or appointment; (1) Those who have been convicted of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned; (2) Idiots and insane persons._ It therefore appears that persons convicted of an offence punishable by imprisonment in the penitentiary cannot vote or hold office unless they have been pardoned of this offence.
In the case of United States vs. Athens Armory, 35 Ga. 362, the Supreme Court of Georgia says:
"A pardon is an act of mercy, flowing from the fountain of bounty and grace; its effect, when it is a full pardon, is to obliterate every stain which the law attached to the offender, to place him where he stood before he committed the pardoned offence, and to free him from the penalties and forfeitures to which the law had subjected his person and property; to acquit him, says Sir William Blackstone, of all corporal penalties and forfeitures annexed to the offence for which he obtained his pardon."-
See also in this connection the case of Diminick vs. Bowden, 44 Ga. 357.
The same doctrine is laid down in the case of Cook vs. Freeholders, 26 N. J. (Law) 326. See also Edwards vs. Common~ wealth, 78 Va. 39.
It appears therefore from these authorities that an act of the Governor which only remits a part of the penalty imposed upon one who has been convicted of an offence involving moral turpitude is sufficient for that purpose only, but that such an order does not free such a person from ''the stain which the
73

law attaches to the offender." The offender may be relieved by such an act of the Governor by suffering the penalty imposed upon him by the court, but still, in the eyes of the law, he is attainted, and carries with him the stain of having offended against the law in a serious matter. While this stain remains upon him, and until his offence against the law is blotted out he is not permitted to enjoy the privileges of citizenship. Only a full and free pardon at the hands of the Chief Executive can blot out this stain and restore him to the rights of citizenship. In the case of Miller vs. the State, 149 Ind. 607, it is said:
"Pardon is remission of guilt, amnesty, oblivion, or forgetfulness. The ~ct of a board of managers, under the authority given them by the statutes, in shortening the term prescribed by a sentence, and leaving the conviction of guilt unaffected, is not a pardon."
It is my opinion, therefore, that in the cases of the persons above mentioned, none of them can be restored to the rights 9f citizenship, including the right to vote and hold office, except by full and complete pardon granted by the Chief Executive of the State. A mere commutation of sentence or a remission of part of a sentence, or anything less than a formal pardon is insufficient for this purpose.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
Under the terms of the contracts and stipulations in the matter of State of Georgia v. Tennessee Copper Co. et al., executed September 15th, 1913, it is p_roper for the Governor to make appointments of Arbitrators and Inspectors for the ensuing year.
May 2, 1916 Hon. Nat_, E. Harris, Governor,
State Capitol, Atlanta. DEAR SIR: I have your favor in which you ask my opinion as to the term of office of Arbitrators and Inspectors provided under the term of contracts and stipulations in the matter of State of Georgia vs. Tennessee Copper Company et al, executed in September 15, 1913. Replying thereto, I beg to say that this agreement was negotiated through Governor John 1\f. Slaton. The minutes of the Executive Department show that on October
74

I I
!

8th the Governor made the appointments provided for under said contract in the following language, to wit:

J. J. Brown is designated Inspector. "The life of this appoint ment being subject to the pleasure of the Governor who reserves the right to make a change when thought advisable." .
E. S. Griffith is designated .Arbitrator "until further ordered." J. J. Brown is designated Referee, "said designation being only the remainder of the present year."

The minutes further show. that J. J. Brown was thereafter appointed Referee for the term of one year for and during the succeeding year.
The last order bearing date May 26, 1915, reads as follows:

"That by virtue of contract entered into between the State of Georgia and the Tennessee Copper Company under authority of resolution of the General .Assembly approved .August 6, 1913, the appointment of E. S. Griffith, of Buchanan, Ga., as Arbitrator for the State, that of J. J. Brown as Inspector, and that of J. J. Brown as Umpire in the matter of arbitrations be and the same are hereby -continued for the year 1915, the appointments to date from .April 1, 1915, each of the appointees having performed the duties of their respective positions since that time; these appoint ments being under the same terms and conditions as to compensa tions as for 1914."

It appears therefore that the Governor who entered into thE stipulation was of the opinion that the appointments were not made during the life of the contract but by the year. It further appears that the appointees have themselves requested their

re-appointment and that they have considered the matter in the

same light. I find nothing in the contract to the contrary and

am therefore of the opinion that it is proper for you to make

the appointments at present for the ensuing year.



Yours very truly,

CLIFFORD WALKER,

Attorney-General.

It is the duty of the Governor to keep the Capitol Building Insured for one-half of its value.

Hon. Nat. E. Harris, Governor, State Capitol, Atlanta.

May 31, 1916.

DEAR Sm: I have before me your request for an opinion

75

wherein you state that it has been brought to your attention that the State does ~ot carry fire insurance upon the Capi-

tol Building, and you raise the question as to your duty in the

premises under the law.

'

Section 147 of the Code reads as follows:

"The Governor shall keep insured, at one-half their value, all of the public buildings of the State and Library, except the State Arsenals at Milledgeville and Savannah, the Penitentiary at Milledgeville, and the building of the Western & Atlantic Railroad."

It is perfectly clear that the legislative intent is here expressed that the State Capitol Building should be insured at one-half its value. It appearing, however, that former administrations have not kept the Capitol insured the wording of the appropriation providing funds to cover insurance is brought into question, and properly so. This paragraph reads as follows:

"For insurance on public buildings, the sum of $75,000.00 (seventy-five thousand dollars) or so much thereof as may be necessary, to be paid out when the present insurance expires."

The question is whether or not the duty of the Governor is affected by the last clause of the paragraph of the appropriation: "to be paid out when the present insurance expires." On reflection I am satisfied that the Legislature did not intend to limit the buildings to be insured or the amounts thereon, but intended that the money so appropriated should be available in ..case of each policy now in existence as and when the said policy expired. The direction to the Governor to insure the public buildings is plain and positive, and I feel sure that the Legislature had no intention to restrict him in complying with that direction by its appropriation Act referred to. I therefore ha~e to advise that.the Governor has ample authority, if indeed it is not mandatory upon him, to insure the Capitol Building at one-half its value.
Very truly yours,
w CLIFFORD A.LKER,
Attorney-General.

76

Where a reward is offered by the Governor for the apprehension and delivery of a fugitive criminal to the sheriff of the county where the crime was committed with evidence to convict after such fugitive had already been arrested, bt,~t, upon his trial, he was convicted upon the evidence furnished by the person who had so arrested him, who is seeking the reward, such applicant would be entitled to one-half of the reward so offered.
July 28, 1916. Hon. Nat. E. Harris, Governor,
State Capitol, Atlanta.
DEAR Sm: I have your request of recent date f9r an opinion on the matter of the application of l\1r. C. J. wheeler, for a reward of $250.00 for the apprehension and delivery to the Sheriff of Berrien County of the unknown party claimed to have been guilty of setting fire to and burning the gin house of A. E. Rampey. It appears that on the 20th day of 1\Iarch, 1915, the Governor of this State offered a reward for the ''apprehension and delivery of the said unknown parties to the Sheriff of Berrien County with evidence sufficient to convict.'' The reward was $250.00. It further appears from the record in this case, that A. E. Rampey and Virge Curry were arrested on the 18th day of l\Iarch, 1915, by the Sheriff of Berrien County. It further appears by the affidavits attached to the application that 1\'Ir. Wheeler furnished the information upon which the arrest of these parties was made. It further appears that both of these parties were convicted of arson in the burning of the said gin house and sentenced to terms in the penitentiary which they are now serving. It appears that no motion for a new trial is now pending. It further appears from the affidavits attached to the application for the reward that 1\:Ir. Wheeler furnished the evidence upon which both of these parties were convicted and that without the information and evidence furni~hed by him it would have been impossible to secure a conviction. The only difficulty about the case arises from the fact that the said parties were arrested on the 18th day of March, 1915, whereas, the reward was not offered until the 20th day of March, 1915. However, it appears that Mr. Wheeler furnished the information upon which the arrests were made and later furnished the evidence which resulted in a conviction of both parties. Under the law of this State as found in Section 902 of the Penal Code of 1910, and under the terms of the offer of a reward as published in this case,
'fT

two things are required to be done to entitle a person to receive the reward: First, the apprehension of the incendiary, and second, the furnishing or proof sufficient to convict. According to the rulings of various courts on this subject it is generally necessary that these conditions must be met and these acts performed after the publication of the reward. In this case, one of these things, to-wit, the apprehension of the incendiary was made before the publication of the reward, but the other, to wit, the furnishing of evidence sufficient to convict was performed after the publication of the reward and evidently with a view of claiming the reward. Some of the courts have held that a reward in such cases can not be apportioned, but I am inclined to think the sounder rule in a case like the one under consideration would be to apportion the reward and pay to the applicant onehalf of the amount offered. In this case I am of the opinion that in justice and equity the reward should be apportioned and at least half thereof paid to the applicant.
Yours very truly,
CLIFFORD wALKER,
Attorney-General.
An Act of the General Assembly authorizing a county to issue bonds for the purpose of erecting a school building is not in conflict with the general law on the manner of issuing such bonds, and is therefore not unconstitutional.
Atlanta, Ga., July 29, 1916. Hon. Nat. E. Harris, Governor,
State Capitol, Atlanta. DEAR SIR : In reply to your request for an opinion as to the validity of the Act -of the General Assembly authorizing the County of Richmond to issue bonds for the purpose of erecting a school building, I beg to say: Under the decision of the Supreme Court of this State in the case of Smith et al. vs. Bohler et al., 72 Ga. 546, the Board of Education has the authority to levy a tax for the purpose indicated. If this were not true, under Section 6562, Paragraph 2, of the Code (Constitution) the county authorities have the power to levy a tax for such purpose. Under Sections 6563 and
78

6564 of the Code (Constitution) counties have the authority to

incur bonded debts rrovided the total amount of indebtedness does not exceed '' sev~n per centum of the assessed value of all

the taxable property therein.'' This means, of course, that the

bonds could be issued for any purpose for which taxes could be

levied.



Sections 440 et seq. of the Code of 1910 provide the way and

manner in which such bonds may be issued; for the election to be

held to determine whether or not the.bonds are to be issued, etc.

These sections refer to any county, municipality or division of

the State.

The only question, as I see it, that can arise in the case is

whether or not the Act in question is' a special law in conflict

with the provisions of a general law on the same subject. Sec-

tions 440 et seq. constitute a general law. The Act in question

is, of course, a special law.

In the case of Farmer vs. 1\Iayor, etc. of Thomson, 133 Ga.,

page 94, the Supreme Court says that the Legislature can make

a special law on this very subject in relation to municipal cor-

porations for the reason that they are creations of the law and

may be changed at will by the lawmaking power. The ob-

jection mentioned, therefore, could not apply to a municipal cor-

poration.

However, in the cases of the County of Dougherty et al. vs.

Boyt et al., 71 Ga., page 484, and Elliott vs. Gammon et al.,

Commissioners, 76 Ga., page 766, the Supreme Court holds that

the issuance of bonds by a county must be made as provided by

the general law as set forth in the sections of the Code above

mentioned.

A reading of the bill under consideration will disclose that it

is substantially in conformity with the general law as to the

election and the issuance of the bonds with one exception which

will be discussed later. This would not render the Act void or

the issue of bonds illegal. See the case of Farmer vs. Thomson,

aLove cited, where it is said: "It is a special law which con-

flicts with a general existing law which is obnoxious, not one in

harmony with the general law and prescribing certain additional

matters in regard to a municipal election not in conflict with the

grneral law."

.

As to the portion of the Act not exactly in harmony with the

79

general law. Section 6564 of the Code (Constitution) provides that at or before the issuance of the bonds provision must be made for the levy of a tax sufficient to pay them. This would ordinarily be done by the Commissioners where there are commissioners, for they are the county authorities exercising the power of levying taxes. Section 442 of the Code, a general law, p~ovides that when the Constitutional provisions have been met, the authority to issue bonds is given to the proper officers of said county. This would ordinarily be the commissioners where ther'3 are commiSSIOners. The Act under consideration provides that the Board of Education is to issue the bonds and to provide for the payment of the principal and interest on the same as it may mature by the levy of a tax in the same manner as other taxes for the support of the schools are levied. Under the decision of the Supreme Court in the case of Smith vs. Bohler, above cited, the Board of Education of the County_ of Richmond has the power to levy taxes for the support of the schools of that county. Under the Act of 1872 such board is tl1e county authority- for the purpose of levying taxes for the schools. This Act was passed under the Constitution of 1868 and being constitution~! when p;{ssed, it is now GOnstitutional.
For the reasons above stated, I think there is very little doubt that the Act under consideration is constitutional.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.
1. The election of a Justice of the Peace and Constables for a newly created militia district, as called for in Section 380 of the Civil Code, shall be held- immediately after the things required under Section 379 thereof, requiring the transmission of certified proceedings from the Ordinary's minutes and publication, have been complied with.
2. An election precinct can be established in any such newly created militia district at any regular term of the Court of Ordinary after the report of the Commissioners appointed by the Ordinary to pay out such district.
July 31, 1916. Hon. Nat E. Harris, Governor,
State Capitol, Atlanta, Ga. DEAR Sm: I have your letter of recent date inclosing a
80

communication from Hon. A. F. Byrd, Ordinary of Appling. County. Mr. Byrd states that an application for laying out a new militia district ~n said county has been filed with him and that he has appointed the Commissioners to lay out the district, that the said Commissioners have filed their report; that the same has been approved by him and the proceedings trans- . mitted to the Governor, and that the same are now being published as required by law in the public gazette of the county. He wishes a construction of Section 380 of the Code relative to the time when an election must be called in the new district for the purposes of electing a Justice of the Peace and Constables for the said district.
In reply to this question I will say that Section 380 provides that this election must be called "immediately," as soon as such is done. The words in said Section, ''as soon as such is done,'' in my judgment refer to all the things required to be done under Section 379 of the Code; that is to say, that after the proceedings have been transmitted to the Governor and after they have been published for thirty days at the door of the court house and in the public gazette, then the election is to be called immediately. I think the thirty day publication must be completed before the election is ordered. Judge Byrd wishes to know further whether or not after the completion of the advertisement or publication for thirty days,. he can defer calling the election. In reply to this question I will say that the Statute says that the election must be called "immediately" after the requirements of Section 379 have been complied with. For this reason I do not think the ordering of the election could be deferred.
Judge Byrd further desires to know whether or not the political party in power has the right to order the primary on September 12th of this year held where they may see fit, or in uther words, if the Ordinary can not get the new district fully established in time, said party can order the election held in the new district after the publication which will be complete in thirty days. In reply I will say that the rule and regulations of the State Democratic Executive Committee adopted May 3rd, 1916, require that said primary election shall be conducted in accordance with the laws of this State. The primary election therefore_will have to be held at the precinct established by law
81

. at the time of holding the primary. Under Section 79 of the Code election precincts are established by the Ordinaries at a regular term of their court, description of which must be entered on the minutes at the time. Under Section 378 of. the Code, as soon as the Ordinary approves the report of the Commissioners, and records the- proceedings on his minutes, the new district "shall be known and regarded accordingly." In my opinion under the provisions of this last mentioned Section, and under said Section 79 the Ordinary is authorized to establish an election precinct for the new district at the next regular term of his court. I do not think the establishment of the election precinct is regulated in any way by the requirements for the publication for thirty days of the proceedings to establish the new district. It seems to be the intention of the law that the new district legally exists from the date the report of the Commissioners is approved by the Ordinary. The purpose of the publication of the proceedings is to inform the people that the new district has been created, and its boundaries defined. I think that the election precinct may be established at any regular term of the Court of Ordinary after the approval of such report. Very truly yours,
.. CLIFFORD WALKER,
Attorney-General.
A Resolution of the General Assembly providing for the exemption of a citizen from taxation is unconstitutional.
August, 18, 1916.
Hon. Nat. E. Harris, Governor, State Capitol, Atlanta.
DEAR SIR: I have before me your favor of recent date transmitting House Resolution Number 102, being a Resolution for the relief of T. A. Baldwin and the Catoossa Springs Company with your request for an opinion as to its constitutionality.
In response thereto I beg to say that Article 7, Section 2, Paragraph 4 of the Constitution of the State of Georgia reads as follows:

"All laws exempting property from taxation, other than the property herein enumerated, shall be void."
Article 7, Section 16, Paragraph 1, reads as follows:
"The General Assembly shall not, by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation, or association."
Resolution Number 102 provides for the relief of two taxpayers in exempting them from certain taxes. I am of the opinion therefore that the Resolution is unconstitutional and should be vetoed. However appealing to the individuals at interest it may be, it would be a dangerous precedent, leading to untold complications, if such a resolution were placed upon the statute books of this State.
Yours very truly,
CLIFFORD WALKER,
Attorney-General. , __
Where a defendant was convicted of voluntary manslaughter and carried his case to the Court of Appeals for review, and the Court of Appeals certified the case to the Supreme Court for decision on certain constitutional questions involved therein, the Solicitor-General of the circuit is entitled to a fee for his appearance and services rendered in the Court of Appeals, but he is not entitled to another fee in the same case for his appearance in the Supreme Court.
August 18, 1916. Hon. Nat. E. Harris, Governor,
State Capitol, Atlanta. DEAR Sm: I have your request of today for an op1ruon on the following matter: A defendant was convicted of voluntary manslaughter and carried his case to the Court of Appeals for review. The Court _of Appeals certified the case to the Supreme Court for decision on certain constitutional questions involved therein. The Solicitor-General of the circuit has received the fee provided by law for his appearance and services rendered in the Court of Appeals. He now requests another fee in this case for his services rendered in the Supreme Court. You wish my opinion as to whether or not the Solicitor-General is entitled to both fees in the case, one for the Court of Appeals and the other
83

for the Supreme Court. In reply I will say that in my opinion the fee for the services in the Court of Appeals was properly and legally paid. However, I do not think that under the law the Solicitor-General is entitled to another fee in the same case for his appearance in the Supreme Court. Section 1126 of the Criminal Code provides, in part, as follows: ''For services in the Supreme Court his fees are: In capital cases $50.00, other

felonies $30.00." This Section was enacted prior to the time at which the Court of Appeals was created, and the fees formerly payable for services in the Supreme Court are now payable for services rendered in the Court of Appeals in cases which, according to law, now go to the Court of Appeals. The Solicitor

has already received the only fee allowed by, law under this

Section. The provision contained in the same Section to wit, "For
services in cases not mentioned, where the State is an interested party, at the discretion of the Governor, not exceeding $50.00, '' in my opinion is not applicable. This Section refers to the fees

of the Solicitor-General rendered in the Superior Courts in cases not mentioned in said Section. The first part of Section 1126 provides for fees to be paid to the Solicitor-General for his services in the lower courts, and the latter part of the Section beginning ''for services in the Supreme Court, etc.'' refer to the fees to be paid to- the Solicitor-General for services rendered in

the Appellate Courts.

~ours very truly,

CLIFFORD WALKER,
Attorney-General.

84

Where, as provided in Sections 472 et seq. of the Civil Code, the Gov.

ernor, upon the recommendation of the Grand Jury, appointed

a Surveyor to mark out and define the county lines between

certain counties, such a Surveyor is subject to be removed by

the Governor, but only after there has been a charge formu-

lated against such Surveyor, and notice to him of the. accusation,

and a hearing of the evidence in support of the charge, and an

opportunity given him of making a defense.

In such a proceeding the Governor has the right to act upon the ap-

plication of the grand jury, or the county authorities, or a citi-

zen and taxpayer of either of the counties interested.

"

August 23, 1916. Hon. Nat: E. Harris, Governor,
State Capitol, Atlanta. DEAR SIR: I have your letter of August 23, 1916, in which you request an opinion on the following matter: Under Sections 472 et seq. of the Civil Code the Governor, upon the recommendation of the Grand Jury, appointed a Surveyor to mark out and define the county lines between Pulaski and Bleckley counties, and Pulaski and Houston counties. A portion of this survey has been made. It is now claimed by some of the parties at interest that the said Surveyor is conducting the survey in such a manner, by delaying the work, or making it extend over too long a period or otherwise, so as to become unsatisfactory to the county authorities. You wish to know whether or not the Governor has the authority to revoke the appointment of the .Surveyor and to remove him from office, and if so, upon whose recommendation would he have to act. In reply I will say that Section 155 of the Code declares as follows: ''All appointments to discharge a public duty, by the General Assembly, or by the Governor under its authority, are declared to be offices within the meaning of the Constitution.'' It will be noted that the provisions of the Code relating to the appointment of a Surveyor in cases of disputed county lines do not provide for the removal of such Surveyor, nor do they provide any certain or fixed length of time within which the Surveyor is to hold his office or perform the work. It seems now to be the universally accepted rule that, where the tenure of the office is not prescribed by law, the power' to remove is an incident to the power to appoint. In such a case no formalities such as the preferring of charges against, or the
85

granting of a hearing to, the incumbent, are necessary to the Iawful exercise of the discretionary power of removal. See,
Wright vs. Ganble, 136 Ga. 376. 29 Cyc. 371, 1408. 23 A. & E. Enc. Law, 405, Mechem, Pub. Off. 445. Throop, Pub. Off. 304 et seq. Coleman vs. Glenn, 103 Ga. 458. Gray vs. McLendon, 134 Ga. 224.
Where, therefore the tenure of the office is not fixed by law, and no other provision is made for removals, either by the Constitution or by Statute, it is said to "be a sound and necessary rule to consider the power of removal as incident to the power of appointment.''
But this power of arbitrary removal is to be limited to those circumstances, and if the tenure is fixed by law, or if the officer is appointed to hold during the pleasure of some other officer or board than that appointing him, the appointing power can not arbitrarily remove him. See Mechem's Public Officers, 445.
While it is true that one who holds an office during the pleasure of the appointing power is removable without notice and without a hearing, this rule is not applicable when the office is held during good behavior or for a fixed term. Where an officer holds his office for a certain number of years, if he shall so long behave himself well, he can not be removed, even for misbehavior, without notice and a hearing. So where he is appointed for a fixed term, and removable only for cause, he can be removed only upon charges, notice, and an opportunity to be heard: See
Coleman vs. Glenn, 103 Ga. 458. Throop on Pub. Off., Section 364. -
It will be noted from the above authorities that if a public officer is appointed for a fixed term or if the tenure of his office is certain and fixed, he can not be removed arbitrarily without notice and an opportunity to be heard. The duty of a Surveyor appointed under Section 472 of the Code, and the purpose for which he is appointed, is to survey, mark out, and define the boundary line in dispute, and return such survey with plat to the Secretary of State's office to be recorded in a book to be
86

kept for that purpose. While it is true that no definite and fixed time is prescribed within which the Surveyor is to finish the work for which he is appointed, yet the tenure of his office is fixed in that he is to continue until one specific job or piece of work is finished. This, in my judgment, makes his tenure of office definite and fixed. In my judgment, therefore, such a Surveyor is subject to be removed by the Governor, but only after there has been a charge formulated against him, and notice to him of the accusation, and a hearing of the evidence in support of the charge, and an opportunity given to the party of making a defense.
In reply to your question as to who w~uld be authorized to seek the removal of such a surveyor, I will say that, in my judgment, the Governor has the right to act upon the application of the grand jury, or the county authorities, or a citizen and taxpayer, of either of the counties interested. I am inclined to think that the Governor would be authorized to act on his own motion, if the proper notice and hearing were given.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.

Provisions of the Act, as to when the appropriation for the use .of the Resaca Confederate Cemetery Is available.

t.iovernor Nat. E. Harris,

October 14, 1916.

-State Capitol, Atlanta.

DEAR Sm: I have before me your favor of recent date, trans-

mitting letter from Hon. A. L. Henson, Secretary of the Board

of Trustees of the Resaca Confederate Cemetery, in which he

inquires if the appropriation carried by the Act of the General

Assembly approved August 19, 1916, for the use of the Resaca

Confederate Cemetery is now available.

In response thereto, I beg to say that the Act referred to contains the following proviso:

"Provided no funds appropriated under this Bill shall be available until all appropriations made by the Legislature last November for maintenance purposes for 1916 and 1917, and

87

especially the public schools and pensions appropriations for those years, have been paid."
It follows, therefore, that the fund will be available only after the appropriations referred to have been paid.
Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
Where a bank has been appointed as a State Depository but does not - qualify as such for a length of time, the Governor may, in his discretion, treat the failure to qualify as resulting in a vacancy and proceed to fill the same either for the unexpired term or for a new term of four years, or he may now accept the bond of such bank and allow the bank to qualify for the unexpired term.
October 16, 1916. Hon. Raymonde Stapleton, Executive Secretary,
State Capitol, Atlanta. DEAR SIR: I have before me your favor of 13th instant in which you say:
"Governor Harris directs me to enclose you attached proceedings in reference to the Peoples Bank of Gordon. This Bank was appointed on January 22, 1915, as a State Depository for a term of four years, but they did not qualify. In June, 1916, the Board of Directors passed resolutions accepting the appointment.
"The Bank then filed a bond and have asked the Governor to approve the same and to order the Tax-Collector to depo~it with said bank. Governor Harris desires to know if this order did not lapse during the time, and if he woul<l. be authorized to appro~e the bond of the bank and let it continue as a Depository under this order at this late date."
Section 1252 of the Code provides that each of the deposi. tories shall, before entering upon the discharge of their duties, execute a bond, with good and sufficient surety, to be fixed and approved by the Governor. It appears, therefore, that in order to qualify as a depository the bank must execute a bond. Failure to execute this bond within a reasonable time may be construed by the Governor as a failure to accept the appointment, and the Governor may, in his discretion, declare a vacancy and proceed to make another appointment. What constitutes a
88

reasonable time under such circumstances would also be a matter within the discretion of the Governor.
Section 1253 provides:
"That whenever from any cause the State Depositories in any locality shall cease to operate it shall be the duty of.. the Governor to make another appointment, either to fill out the unexpired term or to enter upon a new term of four years as the case may be."
Reasoning by analogy the same principle would apply to a bank failing to qualify within a reasonable length of time as to a bank which did qualify but later ceased.
Under the facts stated as to the bank in question it is clear to me that the Governor may, in his discretion, treat the failure to qualify as resulting in a vacancy and proceed to fill the same either for the unexpired term or for a new term of four years, or he may, in the exercise of his discretion, now accept the bond and allow the bank to qualify for the unexpired term.
I am returning herewith your file. Yours very truly,
CLIFFORD wALKER,
.Attorney-General.
If, through mistake or other cause, a taxpayer has paid into the Treasury of the State a greater amount than he was liable for the Governor may draw his warrant on the Treasury in favor of such taxpayer for the proper amount.
.Atlanta, Ga., October 24, 1916. Hon. N. E. Harris, Governor,
State Capitol, Atl<!-nta. DEAR SIR: I have your favor of even date requesting an opinion on the question whether or not there is any authority in law for the refunding of overpaid taxes directly to the taxpayer out of the Treasury of the State. In reply I will say that S<:;ction 1102 of the Code of 1910 provides as follows:
If by reason of_ such mistake, or from any other cause, a taxpayer's money is in the Treasury for a greater amount than he is !~able for, of which such officer is clearly satisfied, he may certify the same to the Governor, who shall, if he approves, draw his warrant on the Treasury in favor of such taxpayer for the proper amount, out of any moneys not otherwise appropriated.

A reading o the preceding Section, to-wit: Section 1101, clearly indicates that the expression ''such ,officer,'' as used in the Section quoted, refers to the Comptroller-General.
The Section quoted applies where the money of the taxpayer has been paid into the Treasury of the State. The next Section, to-wit: Section 1103, applies to cases where the mistake has been discovered before the money has actually been paid into the State Treasury. The latter Section provides as follows:
If such mistake is ascertained before the tax-collector has paid the amount into the Treasury, the Comptroller-General, with the sanction of the Governor, shall authorize such collector to refund the amount, or, if he has not collected it, to order him to desist.
Section 1101 of the Code, which is the first Section mentioned above, refers to cases where it is desired to correct a mistake in the tax digest. This Section provides that the ComptroilerGeneral, _with the sanction of the Governor, may correct such mistake by making the necessary entries in the digest furnished the Comptroller, and notify the Ordinary and Tax-Collector o the county from which such digest comes of such mistake and correction.
I hope the above will give you the information you desire. Very truly yours,
CLIFFORD wALKER,
Attorney-General.
A bank, designated as a State Depository, should give bond to cover the entire time of the term for which it is so designated.
_November 7, 1916. Hon. Raymonde Stapleton, Executive Secretary,
State Capitol, Atlanta. DEAR SIR: I am in receipt of your inquiry as to whether or not it is permissible under the law for a bank, designated as a State Depository, to give bond as such for a length o time less than the duration of such term. Our Code, Section 1252, in stating the provisions of the law relative to such bond says that ''Said bond shall be conditioned for the faithful performance of all such duties as shall be required of them by the General Assembly or the laws of this State, and or a faithful account of
90

the money or effects that may come into their hands during their continuance in office." In order, therefore, for such a bank to comply strictly with the terms of the law it would be necessary for them to give a bond covering the entire time of the term for which they ar~ thus designated as such pepository. Such a bo.nd should cover the entire time during their continuance in office. A bond covering only a portion of such term would not be in compliance with the provisions of the law relating thereto.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.

The use of the Hall of the House of Representatives in the State Capitol for the presentation ceremony of a portrait of Nancy Hart by the Daughters of the American Revolution to the State of Georgia, the Governor representing the State in the accept. ance thereof, would not be violative of Resolution No. 64, passed at the last General Assembly, expressing the sense of that body that such Hall should be used for some Department of the State only.

Hon. Nat. E. Harris, Governor,

November 16, 19'16:

State Capitol, Atlanta.

DEAR Srn: Replying to your inquiry as to whether the use of

the Hall of the House of Representatives, in the State Capitol, for the purpose of having the presentation ceremony therein by

the Daughters of the American Revolution to the State of Geor-

gia of a portrait of Nancy Hart, would be in violation of Reso-

lution Number 64, passed by the last General Assembly, I beg to

advise that as the same General Assembly, by resolution Num-

ber 25, accepted this portrait for the State of Georgia, and that you, as Governor, will be representing the State of Georgia in

ac::cepting the portrait, I do not think that the use of this Hall

for such ceremony would be a violation of either the letter or the spirit of the first ~entioned resolution.

Yours very truly,

CLIFFORD WALKER,

Attorney-General.

91

All citizens having claims against the Tennessee Copper Company who so desired having submitted their claims under the old contract with said Company, prior. to October 1st, 1916, on which date a new conhact was entered into with said Company relative to the claims therein mentioned, the- Governor is authorized to refund the balance of money of the Company remaining on hand under said old contract, by check, payable to the attorney of said Company, under the order of the President of said Company.
November 22, 1916. Hon. Nat. E. Harris, Governor,
State Capitol, Atlanta. DEAR SIR: I have before me your favor of even date in the matter of the contract between the State of Georgia and the Tennessee Copper Company in which you say that the Copper Company is requesting the return of the balance of the money which is deposited to its credit in the Fulton National Bank after paying the awards and expenses of the present year which amount to some $7,100.00 or other large sum, checks for which amount have already been signed by the Governor. This will leave in the bank some twenty thousand dollars. You ask me to inform you whether or not this fund shall be returned to the Company or whether any amount should be kept in bank to pay contingencies on the old contract, and if so, under what authority? In response, I beg to remind you, in the first place, that the contract referred to is not now in life, having been superseded by a new contract as of date October 1, 1916. The question then turns upon any contingency whereby the Company should be under obligations under the old contract and for liabilities dating prior to October 1st. In the second place it will be noted that under Section 8 of the contract no citizen of the State having or claiming a right of action for damages on account of injury is bound by the terms of this contract unless such citizen shall voluntarily submit his claim to arbitration under the rules and regulations therein prescribed. In other words, any citizen who has not so voluntariiy submitted his claim to such arbitration still has his remedy against the Company with no limitation except the general statute of limitations prevailing in such claims under the general laws of this State and such citizens could not object to the return of the funds deposited.
92

All citizens having and claiming such rights of action who have seen fit to submit their claims to arbitration have already had their rights passed upon by the Board of Arbitration whose awards have been duly made and payments made as stated in your letter. I am advised of no appeal or exception to such awards or of any objection on the part of such citizens to the return of such funds so deposited. .1\Ioreover, the contract itself expressly provides ''that such balance as may remain of such accumulated fund at the expiration of this contract shall revert to the Company." This provision being expressed in the bottom of the contract and being full notice to all parties at interest and claimants for damages it appears clear to me that it follows that under the facts hereinbefore set out the Company is entitled to a refund of the balance now on hand.
Yon enclose with your letter an order of President \Vedge bearing date November 15, 1916: and ask if the check to cover said balance should be made payable as therein directed.
This order directs that such check be made payable to the order of 1\fr. John D. Little, attorney for Tennessee Copper Company and delivered to l\1r. Little. In as much as lVIr. Little is the attorney of record for tlie Company I beg to advise that a check made payable to him as directed would be legal and that you can safely comply with this request.
I am returning herewith the file in the matter referred to. Yours very truly,
CLIFFORD \VALKER,
Attorney-General.

A member of the Railroad Commission of Georgia having resigned, and the Clerk of the House of Representatives having been ten. dered the position thu,s made vacant on the Railroad Com. mission, and said Clerk having also tendered his resignation as such Clerk, which has been accepted by the Governor, all of which appears in writing and recorded on the Minutes of the Executive Department effective before such former Clerk qualifies as such member of the Railroad Commission, said former Clerk ~<l.n legally qualify as a Railroad Commissioner.

lion. Nat. E. Harris, Governor,

November 23, 1916.

State Capitol, Atlanta.

DEAR SIR: I am returning herewith file submitted to me

93

wherein the Honorable Joseph F. Gray tenders his resignation

asRailroad Commissioner and the Honorable John T. Boifeuillet

is appointed to succeed him and said Boifeuillet tenders his

resignation as Clerk of the House of Representatives, effective

from November 21st, and the said resignation formally accepted

by you as Governor, all of which appears in writing, and also

recorded on the minutes of the Executive Department, effective

before 1\fr. Boifeuillet qualifies as Railroad Commissioner.

It is my opinion that under such condition Mr. Boifeuillet can

legally qualify as Railroad Commissioner.



Yours very truly,

CLIFFORD wALKER,
Attorney-General.

In the regular election for Justice of Peace, there being only two candidates for said office1 and each having received the same number of votes, the election is void, and a special election will have to be called to fill the vacancy thus caused.

Hon. Nat. E. Harris, Governor,State Capitol, Atlanta.

December 9, 1916.

DEAR Srn: Replying to your favor of even date in which you

raise the question as to the proper authority for ordering an

election when an election has been held for Justice of the Peace in a militia district, with two candidates, each candidate receiv-ing the same number of votes, I beg to advise that in my opinion

this result is the same as if no election had been held at all, and

that there will be a vacancy in the office at the expiration of the

term of the present incumbent. if there is such a Justice of the

Peace. As soon as there is such a vacancy the Notary Public and Ex-Officio Justice of the Peace in the same district, if there

is one, calls an election to fill the vacimcy as provided in Section. 4658 of the Code. If there is no such Notary in the same cir-

cumstances the Ordinary of the County would order the election as provided in Section 4660 of the Code. In this connection I beg leave to refer you to the opinion of former -Attorney-General Warren Grice,_ under date of January 5, 1915. (Reports and Opinions of Attorney-General of Georgia, 1914, page 64.)

Yours very truly,

CLIFFORD w .A.LKER,
Attorney-General.
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A Solicitor-General is not entitled to a fee of $50.00 for representing the State before the Court of Appeals in a case where the defendant was indicted for murder but convicted of manslaughter only.
December ~4, 1916. Hon. Raymonde Stapleton, Executive Secretary,
State Capitol, Atlanta. DEAR Sm: Replying to your inquiry of the 29th ult., as to whether a Solicitor-General is entitled to $50.00 for representing the State before the Court of Appeals in a case where the de-. fendant was indicted for murder but only convicted of manslaughter, I beg to advise that, as our laws provide that this fee shall be paid for such services in capital cases only, the question presented is really whether this is such a capital case.
See Park's Penal Code, Sec. 1126.
Our Supreme Court has defined a capital felony as being a felony to which the death penalty may be affixed as punishment in given circumstances.
Caesar v. State, 127 Ga. 710 ( 1). Dawson v. State, 130 Ga. 133.
As manslaughter is not such a felony as would come within this definition I do not think that such a Solicitor-General would be entitled to a fee of $50.00 for such services, but that he would be entitled to the $30.00 only allowed for such services in ''other felonies." The same conclusion would necessarily be reached from the decisions of Kenan, 109 Ga. 819, and Maddox, 111 Ga. 647.
Yours very trulpr,
CLIFFORD WALKER,
Attorney-General.

At an election held for the purpose of selecting a Justice of the Peace, the mere fact that the voters of the District selected for this office one of the managers of such an election would not, of itself alone, render such an election void.

Hon. Nat. E. Harris, Governor,

December 18, 1916.

State Capitol, Atlanta.

DEAR Sm: I am in receipt of your inquiry as to whether the

95

fact that one of the managers in an election for Justice of the Peace was himself a candidate and received the highest number of votes cast would render the election v:oid.
Our Code, Section 125, provides that no election shall be defeated for non-compliance with the requirements of the law, if held at the proper time and place by persons qualified to hold them, if it is not shown that, by that non-compliance, the result is different from what it would have been had there been a proper compliance.
Justice Bleckley, in the case of Hardin v. Colquitt, Governor, ex rel., 63 Georgia, p. 589, headnote 3, says: that an election for the office of Justice of the Peace is not void by reason of one of the managers being a son-in-law of one of the candidates, and, in the decision, on page 597, says: "Indeed, if the voters chose to elect -one of the managers to serve as their Justice of the Peace we see not very clearly how it could be prevented.''
The law relating to the election of Justices of the Peace has not been amended in such a way, since the date of that decision, as, in my opinion, would make any change in it. The fact, therefore, that the people of the district saw fit to elect one of the managers of the election as Justice of the Peace . would notnecessarily render the election void, in iny opinion.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.
Where a county of this State has previously agreed to bear the expenses of bringing a prisoner from another State to this State upon the requisition of the Governor such county should be held liable for these expenses.
Hon. F. R. Jones, Private Secretary, State Capitol, Atlanta.
DEAR SIR: I have before me your request as follows:
"Governor Harris directs me to ask for your opinion on the question whether or not the State can be held liable for the expenses of bringing a prisoner from the State of Louisiana to the State of Georgia upon the requisition of the Governor, wher.e the County had previously agreed to bear the expense and refused to carry out the agreement."
Prior to the receipt of your request I had had a conference
96

with l\Ir. Sibley, of Milledgeville, touching this question. He takes the ingenuous position that the county authorities did not legally obligate themselves to pay the expenses and the Governor having granted a requisition without such legal guaranty, being in effect au order to the agent named in the requisition to proceed to Louisiana and bring the prisoner back to Georgia, that the State is liable for the expenses. He bases his contentions on the Act of General Assembly which provides that counties shall not be liable to officers for expenses of returning prisoners from other States except when such expenditures are authorized by the county authorities.
It will be seen that if the contentions of the able counsel for applicant are upheld the practical result will be that county authorities will refuse to authorize such expenditures, the State will be called upon to pay all expenses and the State's system of requisition, with long precedents, will be revolutionized.
The basis of legislation on the subject of requisitions is found in Article 4, Section 2, Paragraph 2 of the Constitution of the United States. It reads as follows:
"A person charged. in any State with treason, felony, or other crime who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdicition of the crime."
The importance of this provision is seen when it is remembered that it is a companion of the next section of the Constitution forming the basis of the fight for State's Rights which brought on the Civil War. It is one of the fundamental provisions guaranteeing personal liberty as well as State's Rights but I do not find that it has been followed by legislation which requires the Governor to pay the expenses of the agent removing the person charged with crime. I do not mean to hold that the Governor could not, on proper case made, enter his order requiring such person removed at the expense of the State. But the precedent and custom now of force is of such long standing as to have all but the dignity of the law and I advise that it be followed in this case. Especially is it true when the requisition was issued with the belief honestly maintained by all that the county authorities had guaranteed the expenses.
It is my opinion that the counties should be held liable for
97

these expenses unless a proper case is expressly made to the Governor before he orders the requisition to issue.
Yours very truly, CLIFFORD \VALKER, Attorney-General.
Executive warrants issued by the Governor, authorized. by and pursuant to the terms of the Act of the General Assembly, approved August 13th, 1915, to provide for the prompt payment of the public school teachers of the State, by authorizing the issuance of the Governor's warrant and the sale of the same, examined, checked, approved and countersigned by the Comptroller-General, drawn in anticipation of revenues provided for by previous legal appropriation and levies already assessed but not actually collected and covered into the Treasury in payment of claims against the State for services already rendered, in the aggregate sum less than the total amount so appropriated, are not inhibited by the Constitution of Georgia, and are, in contemplation of our constitutional provisions, cash transactions; their payment being provided for by funds constructively in the Treasury.
In Re: EXECUTIVE WARRANTS IN P AYl\fENT OF COlVfl\ION
SCHOOL TEACHERS.
The General Assembly of Georgia, at its 1915 Session, passed an Act (Approved August 13, 1915) entitled "An Act to provide for the prompt payment of the public school teachers of the State, by authorizing the issuance of the Governor's warrants and the sale of the same, and for other purposes.'' The provisions of said Act are here quoted:
"Whereas, the prompt payment of the public school teachers of the State is impossible under the present system of levying and collecting the State taxes, for the reason that these taxes are not collectible until the end of the year; therefore,
"Section I. Be it enacted by the General Assembly of Georgia, and it is hereby enacted by authority of the same, That for the purpose of anticipating collection of the taxes of the current year, the Governor shall be and he is hereby authorized to draw his warrant, at the end of each and every month during the current
98

year, in favor of the State School Superintendent or of the several county school superintendents and treasurers of local school sys terns, in the discretion of the State Board of Education, for such amount or amounts as are then due the teachers. Said warrants shall be drawn on the funds appropriated by the Legislature for the current year, and shall not exceed in the aggregate amount the appropriation for the public schools so made for that year. The honor of the State is hereby pledged to the payment thereof.
"Sec. 2. Be it further enacted by the authority aforesaid, That it shall be lawful to sell at a discount said warrants to any per son, bank or banking institution, the said sale to be made at the lowest possible rate of discount.
"Sec. 3. Be it further enacted by the authority aforesaid, That all laws or parts of laws in conflict with this Act be and the same are hereby repealed."
Approved August 13, 1915.
The State Board of Education in regular session held October 30, 1915, duly passed resolutions pursuant to the terms of the foregoing Act directing that the warrants be drawn in favor of '.'the several county school superintendents and treasurers of local school systems" said resolution being duly entered of record on the minutes of said Board.
In order that persons at interest not familiar with the details of the State system of schools or of its system of levying and collecting the State taxes and the method of making appropriations therefrom may be informed, I shall amplify somewhat the information given in the preceding resolutions before entering upon the discussion of the legal questiom; involved.
In the payment of the school teachers from the appropriations made by the State they are divided under the law into two classes: 1. ''Local school systems.'' These are systems located within the incorporated towns and cities of the State. 2. "The county school boards." These comprise all schools not included in the first class. The State Superintendent of Schools issues his statement or requisition upon the Governor showing in detail the several sums due each county school board and each local school system, whereupon the Governor issues his warrant covering these amounts and checks are forwarded: 1. To the Treasurer of the Local School System, and 2. To the Superintendent of County Schools, who is by law, made the executive officer of the County School Board.
Services are rendered and accounts kept "by the month."
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In other words, contracts are made, say in 1914, for services to be rendered in 1915. Pursuant to these contracts schools are opened on the first l\Ionday in January, 1915. Services are rendered by the teachers throughout the month of January. At-the end of the month accounts are filed upon which it is ascertained that the State is due a fixed amount. This amount is due and payable on the first day of February and the teacher is entitled to a warrant for the payment of services already performed for the month of January just as other officers of the civil establishment as Judges of the Supreme Court, State House Officers or Janitors in the capitol are entitled to (and actually receive) warrants on the first of February for services rendered by them during the month of January. For under the law all monies drawn from the Treasury is drawn upon the warrant of the Governor, approved and countersigned by the Comptroller-General (and only after express appropriation therefor).
In practice, all officials o.f the State are so paid monthly ex- cept these teachers. This unfortunate condition is brought about by no intentional discrimination against these worthy servants of the State, but by the financial system of the State.
It should be here noted that each General Assembly in its biennial session, provides in its General Appropriation Bill for the maintenance of these schools -for the two years next following. That is to say the General Assembly of 1913 appropriated funds for the maintenance of the public schools of the State for the years 1914 and l 915-in exactly the same terms as were apporpriated funds for the maintenance of the civil establishment-for the salaries of other State officials. The point is that the teachers are due, and entitled to compensation, for their January work of each year on the first of February in the same measure as are all other employees of the State. As indicated, in practice, the teachers are not so paid, but on the contrary, are forced to wait the better part of a year for their well-earned stipends because of the fact that while appropriations for the salaries and expenses of the State government are made in a preceding year the taxes for the current year are collected in the late winter and during the first months- of the following year. Such funds as are available during the earlier months have been applied to other' funds. The teachers have been left to their own resources resulting in ~reat confusion, lack of
100

uniformity, in some cases exorbitant interest charges and a seeming lack of appreciation of the schools-all of which has resulted in a most decided handicap to the administration of the schools of the State and a real reflection upon every citizen of the State.
It is not surprising, therefore, that the Act of August 13, 1915, was unanimously passed by both the Senate and the House of Representatives and cordially approved by his Excellency, Governor Harris, himself an able lawyer and formerly an honored member of the Judiciary of the State.
It naturally follows that this Act will be upheld unless clearly repugnant to and inhibited by some provision of the Constitution of the State.
Article 7, Section 3, Paragrah 1, of that instrument provides:
"No debts shall be contracted by or on behalf of the State except to supply casual deficiencies of revenue, to repel invasion, suppress insurrection, and defend the State in time of war, or to pay the existing public debt; but the debt created to supply deficiencies in revenue shall not exceed, in the aggregate, five hundred thousand dollars."
Code 6558.
For reasons which will hereinafter be made clear certain other sections of the Constitution are here cited:
"The powers of taxation over the whole State shall be exercised by the General Assembly for the following purposes: . _ . For educational purposes, in instructing children in the elementary branches of an English education only."
Code 6551. "The levy of taxes on property for any one year by the General Assembly for all purposes, except to provide for repelling invasion, suppressing insurrection, or defending the State in time of war, shall not exceed five mills on each dollar of the value of the property taxable in the State." Code 6552. "No money shall be drawn from the Treasury except by appropriation made by law; and a regular statement and account of the receipt and expenditure of all public IIIoney shall be published every three months, and also with the laws passed by each session of the Ge'Ileral Assembly." Code 6440.
Also the following provisions of the Code : "It is the duty of the Comptroller-General:
101

"1. To keep an account showing the several appropriations authorized by law, the time when the same are drawn from the Treasury, in whose favor, and to what fund charged.
"2. To examine, check and countersign all warrants upon the Treasury drawn by the Governor . . . and charge the amount thereof to the funds on which they may be respectively drawn, previous to their being presented to the Treasurer for payment.
"3. To audit all accounts against the State, and allow or reject the same before they are submitted to the Governor."
Code 238. ".All payments from the Treasury, unless otherwise provided, shall be made upon the warrant of the Governor, and he may withhold his approval on any account audited and certified by the Comptroller General. The warrant shall always specify on what appropriation or fund it is drawn." Code 163.

"It is the duty of the State Treasurer:

"1. To receive and keep safely all money . . . and to pay out the same only upon the warrants of the Governor, when countersigned by the Comptroller-General." -
Code 228.

The warrant now under consideration is the usual form drawn by the Governor, approved and countersigned by the Comptroller-General, on the State Treasury, for services already rendered, bearing no interest, ''for balance due and unpaid on monthly pro rata for first nine months of the year 1915, out of funds appropriated for the support and maintenance of the Common Schools in the Appropriation Act approved August 19, 1915, for which a levy of tax has already been made and is now in process of collection, and charge same to account of Common School Fund for 1915. ''
With the history of the legislation and the provisions of the Constitution and the Statute Law of the State before us can it be said that the Act of August 13, 1915, is in any sense repugnant to the Constitution 1 If so it is repugnant to Article 7, Section 3, Pa:r:agraph 1, first above quoted:

"No debts shall be contracted by or on behalf of the State except to supply casual deficiencies of revenue, to repel invasion, sup-

press insurrection, and defend the State in time of war, or to pay

the existing public debt; but the debt to supply deficiencies in

revenues shall not exceed, in the aggregate, five hundred thousand

dollars."

.

Code 6558.

102

On reflection it will be clearly seen that the Constitution is not violated for the sufficient reason that the Act in question does not contract or create a debt. The obligation of the State is created when the appropriation is made and the contract with the teachers entered into and performed. The debt is f.!Omplete on the first of each month for services rendered during the pre- ceding month. The very terms of the Act provide that the warrants shall be drawn only at the end of the month-after the rendition of the services-'' for such amounts as are then due the teachers.'' This legislation provides, not for the creation of a debt, but for the payment of obligations already created and existing. A mature consideration of this question will, in my judgment, arrive at this conclusion.
Fortunately, authorities are at hand upholding this view. Our own courts have so declared. In the case of Augusti:o. A. Fletcher, executor, vs. John W. Renfroe, the Supreme Court had under consideration this identical question. The issue was presented by able counsel-Messrs. Lester & Thompson, l\IcCay & Trippe for plaintiff error, and Attorney-General N. J. Hammond for the Treasurer. The Court was composed of Chief Justice Hiram. Warner and Associate Justices Logan E. Bleckley and James Jackson. The Court, through the sound and able Justice Bleckley (later the honored Chief Justice), announced this opinion :
"What are they? (Executive warrants.) Not bills or notes. The Governor has no power to execute bills or notes and bind the State. Are they contracts at all, or in the nature of contracts? We think not. They are not engagements between party and party, but the mere license of the Governor, authorizing the Treasurer to pay money. The creditor need not have possession of them at all. He need never see them. They are officia( documents passing between two officers of the State, and may be handed from one to the other without the intervention of anybody. Usage has established a different course of dealing but there is nothing in the nature of things that requires it. If the Gov~rnor pleased to do so he might send every warrant he issues to the ComptrollerGeneral, and, after its approval by that officers, have it brought back to his own office and there held till paid. This would, perhaps, involve a change in bookkeeping and in the system of re ceipts, but nothing more. It would change no legal right of the creditor, for his right is to have the money, not to have the war rant. The warrant create8 no debt. It is the letter of the Attor-
103

ney which the State, by the Governor, with the approval of the
Comptroller-General, sends to the Treasurer, authorizing him to
make payment." 56 Ga. 677-8.
With ~uch more elaborate reasoning and just as clear the Supreme Court of South Dakota reached the same conclusion. Here the Court, on request of the Governor, rendered ''an advisory opinion as to the legality of an Act of the Legislature to provide for. the issue of warrants by the State to defray current expenses, based on revenues assessed and not yet collected." By reference to this opinion found in 6 South Dakota Reports, 518, In re State Warrants, it will be observed that not only the Act under review, but the provisions of the Constitution of South Dakota are practically identical with those of our State. The limits of this opinion will not permit the quotation of the Constitutional provisions but it must be said that they closely follow the wording of the Georgia Constitution.
The South Dakota Act provides:

"That to protect the public credit and enable the State to pro-

vide for current expenses, the State Treasurer, with the advice

and consent of the Governor and Auditor, is hereby authorized

and directed, . . . to issue warrants based upon the revenues

of the State already assessed for the current year, but not yet

collected. and in an amount never exceeding the amount of such

revenues so assessed and not yet collected. .

. Said warrants

shall not be negotiated for less than their face value and shall be

subject to the same provisions of law as to the .rate of interest

thereon and otherwise as all other warrants on the State Treasury,

All money received from the negotiation of such warrants shall

be applied only to the payment of the necessary and actual cur-

rent expenses of the State."

To illustrate the similarity of Constitutional provisions to our own, Article 13, Section 2, is quoted:

"For the purpose of defraying extraordinary expenses and making public improvements, or to meet casual deficits or failure in revenue, the State may contract debts never to exceed, with previous debts, in the aggregate $100,000.00, and no greater indebtedness shall be incurred except for the purpose of repelling invasion, suppressing insurrection, or defending the State or the United States in war, and provision shall be made by Jaw for the payment of the interest annually, and the principal when due."
. The Court holds:
"By general law the Legislature has provided for the levy of

104

an annual tax for meeting the ordinary expenses of the State. By so providing in a constitutional manner for the levy of a sufficient tax, it 'has provided a revenue, to the extent of the tax, for the payment of the ordinary or current expenses of the State. It may then make appropriation of such revenue for diverse and specific purposes, included within the ordinary expenses of the State, and may authorize the issue of evidence of such appropriation in the form of warrants, without incurring an indebtedness therefor, within the meaning of said Art. 13 of the Constitution. If this were not so, then the appropriations of each Legislature in excess of the cash actually in the hands of the State Treasurer, and in the fund from which such appropriations were made, would, to the extent of such excess, constitute the creation of a debt against the State. It is well understood that the aggregate of the general appropriations of each Legislature in this, as in other States, generally greatly exceeds the amount of actual cash in the hands of the State Treasurer when such appropriations are made. The taxes levied and in process of collection are treated as in the State Treasury, though not yet actually paid over to the State Treasurer. It has been ruled in several cases, and by high judicial authority, that State funds; so in sight, but not yet in hand, may be anticipated and appropriated as tlwugh actually in the possession of the State Treasurer. -In State vs. McCauley, 15 California, 430, the learned Chief Justice Field, speaking for the Court~ said: 'The eighth article (the constitutional article limiting State indebtedness and corresponding to our Section 2, Article 13) was intended to prevent the State from running into debt, and to keep her expenditures, except in certain cases, within her revenues. These revenues may be appropriated in anticipation of their receipts effectually as when actually in the Treasury.' This case, decided in 1860, has been subsequently several times approved and followed by the Supreme Court of California. See McCauley vs. Brooks, 16 Cal. 28; Koppib.-us vs. Commissioners, I d. 253; and People vs. Pacheco, 27. Cal. 175. The same question was before the Supreme Court of Ohio in State vs. Medberry, 7 Ohio St. 529, where the proposition of the California court was fully endorsed. This court says: 'Under this system of prompt payment of expenses and claims as they accrue, there is, undoubtedly, after the accruing of the claim, and before its actual presentation and payment, a period of time intervening in which the claim exists unpaid; but to hold that for this reason a debt is created would be the misapplication of the term "debt," and substituting for the fiscal period a point of time between the accruing of a claim and its payment, for the purpose of finding a debt; but appropriations having been previously made, and revenue provided for payment, as prescribed by the constitution, such debts, if they niay be so called, are, in fact, in respect of the fiscal year, provided_ for with a view to immediate adjustment
105

and payment. Such financial transactions are, therefore, not to

be deemed 'debts.' The same question is elaborately discussed in

State vs. Parkinson, 5 Nevada. 15, and the same conclusions

reached as by the California and Ohio courts. It would seem,

therefore, that, both upon authority and principle, we should be

justified in saying that appropriations from the assessed, but not

yet collected r!Jvenues of the State, and the issuance of warrants

in pursuance and in evidence thereof, is not the incurring of an

indebtedness, within the meaning of Section 2, Article 13 of the

Constitution.

"At first thought, it may seem difficult to maintain that the

issuing of an obligation to pay is not the incurring of an in-

debtedness; but as aptly said by the court in State vs. Parkinson,

supra, 'similar language (prohibiting State indebtedness beyond

a designated limit) in the constitutions of other States had judi

cial interpretation before the foundation or adoption of the Con

stitution of the State,

and thus the legal presumption

arises that the language was used with reference to such interpre-

tation.' Critically considered, it may constitute the incurring of

an indebtedness; but it is not an indebtedness repugnant to the

Constitution, because its payment is legally provided for by funds

constructirely in the Treasury. If the drawing of a warrant upon

the State Treasury is the incurring of indebtedness by a State,

then the drawing of such warrant would violate the constitution,

even if there was money in the State Treasury to pay it, if the

constitutional limit of indebtedness had been reached; for there

must always be some time intervening between the drawing of

the warrant and its payment, and during such time the indebted-

ness of the State would be increased beyond the constitutional

limit. Such an interpretation of the constitutional limitation

would obviously be too hypercritical to be practicable or reason-

able. It being once established, as we think it is by the authori-

ties already cited, that the revenues of the State, assessed and in

process of collection, may be considered as constructively in the

Treasury, they may be appropriated and treated as though actually

and physically there; and an appropriation of them by the Legis-

lature does not constitute the incurring of an indebtedness, within

the meaning of Section 2, Article 13.

"In the light of, and following these conclusions, the answer to

the immediate question submitted to us does not seem to involve

serious doubt or difficulty. The Legislature has, by this law, set

apart and appropriated, as' we have seen it may do, a portion of

the assessed and incoming revenues of the State, to be exchanged

for or converted into ready cash, for immediate use in meeting

the current expenses of the State. If the Legislature may law-

fully make appropriation from such revenues, in various and

different amourtts, to meet specific items of expense, we can see

no objection in principle, to its aggregating a number of such

106

~tmounts, and covering the appropriation therefor all in one act. To illustrate: It has already been shown by the authorities cited that, although there may be, no funds actually in the hands of the State Treasurer, yet the Legislature may lawfully appropriate from the incoming revenues of the State a sufficient amount to pay the per diem and mileage of the members of the Legislature without incurring an indebtedness therefor, within the meaning of the constitutional prohibition. The several members take their warrants and hold them against the incoming funds so appropriated until they come within the physical reach and control of the State Treasurer. Would it import a new or different principle if one member should takt'! them all, and advance to the individual members the several amounts due them? We think not. But, if a member may do so, there is no reason why . a third party may not; and this, in effect, is just what the law under consideration proposes to have done. It may be suggested that the warrants authorized by this law will draw interest, and to that extent, if no more, an objectionable indebtedness is incurred; but, in respect to interest, the warrants authorized by this law are not different from those which we have already seen may properly be drawn and issued. If the issuance of the warrant creates no unconstitutional debt, how can the incident of interest, which the statute imposes as a compensation or allowance for delay, make .that an unconstitutional debt which was not so before? As we read State vs. Parkinson,_ supra, that case, both as to facts and questions of law, was entirely analogous to that now presented to us. The law now before us expressly sets apart and appropriates a sufficient amount of the accruing funds of the State to meet and pay whatever of these representative warrants may be issued. It simply provides for the reimbursement of the party who immediately pays, or furnishes the money to pay, such current expenses of the State as the Legislature may now lawfully make appropriations for. The revenues so appropriated are as effectually set apart and devoted to the payment of the current expenses of the State as though the representative warrant or warrants did not intervene and, to the extent so appropriated, they cannot be used for any other purpose.
"In line with the foregoing views, and influenced thereby, we conclude, and express the opinion, that there is nothing in the general plan or the terms of the act which conflicts with the constitution of the State, and that warrants issued in pursuance thereof, and under the conditions therein named, will be legal and binding upon the State."
(Signed by the Judges of the Supreme Court, 6 S. Dak. 518.) State vs. McCauley, 15 California, 430. McCauley vs. Brooks, 16 California, 28. Koppicus vs. Commissioners, 16 Cal. 253. People vs. Pacheco, 27 Cal. 175. State vs. Medberry, 7 Ohio St. 529.
107

It will be noted that the Act above approved can be said to be more objectionable than the Georgia Act because the former provides for an additional obligation covering interest charges while no such provision is made in the Georgia Act, the warrants being simply delivered to the officials as agents for the persons rendering the services who may discount them if they choose, paying the interest charges themselves if they elect to discount them.
The limits of this opinion have, perhaps, already been unduly extended. The vast importance of the question involved to the children of the future and to all the real interests of the State has encouraged me in the effort to present the matter as clearly as possible. It will now be pursued no further than to add that later decisions of the Courts support the reasoning herein announced:
"Certificates or warrants, issued by the State in anticipation of revenues collectible within the biennial period in which the Legislature meets, and payable therefrom, do not create a 'debt' within the meaning of that term as used in the Constitution, regulating the incurring and paying of debts by the State government."
"W~~:rrants issued in anticipation of taxes are held not to constitute a debt on the theory that moneys, the receipt of which is certain from the collection of taxes, are regarded as for all prac tical purposes already in the Treasury and the contracts made upon the strength thereof are treated as cash transactions."
Rowley vs. Clarke, Dec. 15, 1913, Iowa. 144 Northwestern Reporter, 908.
For an elaborate. discussion of the question of what constitutes a "debt" in contemplation of constitutional provisions limiting the creation of debts by States and municipalities particular reference is made to Swanson vs. City of Ottomwa, 118 Iowa, 161, and numerous cases therein cited.
The conclusions herein announced are also further sustained in the well c'onsidered case of Brown vs. Ringdal, 109 Minnesota, 6.
See.also:
Flecton vs. Lamberton, 69 Minn. 187. Kansas vs. Board of Commissioners, 4 Kansas, 261. Ash vs. Parkinson, 5 Nevada, 15. Noble vs. Clinton, 28 Louisiana Ann. 400. Grant vs. City of Davenport, 36 Iowa, 396.
108

Dively vs. City of Cedar Falls, 27 Iowa, 227. French vs. City of Burlington, 42 Iowa, 614. Houston & Texas R. R. vs. Texas, 44 Law Ed. U. S. 673. Dawson Waterworks Case, 106 Ga. 696.

Following what seems to me the soundest reasoning as well

as sustained legal authority, it is my opinion that under the

laws of Georgia, executive warrants issued by the Governor,

authorized by and pursuant to the terms of the Act of August

13, 1915, examined, checked, approved and countersigned by

the Comptroller-General, drawn in anticipation of revenues pro-

vided for by previous legal appropriation and levies already

assessed but not yet actually collected and covered into the

Treasury in payment of claims against the State for services

already rendered, in the aggregate sum less than the total amount

so appropriated, are in no sense inhibited by the Constitution

of Georgia; they create no new debt repugnant to that Consti-

tution; they are in contemplation of our Constitutional' pro-

vision cash transactions, their payment being provided for by

funds constructively in the Treasury and they are perfectly

valid.

Yours very truly,
w CLIFFORD .ALKER,

October 30, 1915.

Attorney-General.

109

OPINIONS TO THE SECRETARY OF STATE
The County Treasurer Is the proper person to receive and pay out the automobile tax fund apportioned to the county.
July 2, 1915. Hon. Philip Cook, Secretary of State,
State Capitol, Atlanta. DEAR SIR: Yours containing letter from 1\Ir. Geo. Griffith, Commissioner of Madison County, and requesting an opinion as to whether or not the Treasurer of .1\Iadison County is the proper person to receive and pay out the automobile tax fund apportioned to said county and whether or not the said Treasurer is entitled to receive the usual fees for receiving and paying out the said fund. In reply, I will say that in my opinion, as the law now stands, the Treasurer of this county is the proper person to receive and pay out this fund and that he is entitled to the usual fees for receiving and paying out the same. My reasons for this opinion are the following: Section 574 of the Code of this State provides: All county funds are to be paid to, and disbursed by, the County Treasurer, except such as may be specially excepted by law, and then be collected and disbursed as specially directed. Section 588 of the Code provides for the payment of commissions to the Treasurer of the county for receiving and paying out county funds. Under the original Act, that of 1910, the registration fees were to be paid into the State Treasury. Under the Act of 1913, these funds were denominated as a State road fund, and were to be apportioned among the counties of the State. The Act of 1914 provided for the distribution of this fund, and directs that the proper portion thereof shall be transmitted to the proper authorities in each county. I find no special law relating to this automobile tax fund so
110

far as its receipt and distribution by the County Treasurer is concerned. He is, therefore, the proper officer to receive and pay out the same in the manner provided by law. I, therefore, conclude that he is entitled to the usual fees or commissions for so doing. So far as Section 11 of the Act of 1914~ approved August 17, is concerned, it applies only to the commutation tax, or rather all moneys for public road purposes arising from commutation tax. The matter of the automobile tax fund is not considered anywhere in this Act. I think, therefore, that this latter fund is subject to be handled by the County Treasurer in the same manner as other county funds. Of course, it can not be used for any other purpose than in improving the public roads of the county.
Your.s very truly,
CLIFFORD wALKER,
Attorney-General.
The Railroad Commission has jurisdiction of the issuance of stock by a navigation company engaged in the transportation of persons or freight for hire.
Atlanta, Ga., April 22, 1916. Hoit. Philip Cook, Secretary of State,
State Capitol, Atlanta. DEAR SIR: I have your letter of recent date enclosing a communication from Mr. Walter DeFore, of Mitcon, Ga., regarding the Macon-Atlantic Navigation Company. It appears that this company intends placing on the market capital stock of the company to be sold at par. You wish to know whether or not the selling of this stock comes within the provisions of the Act of the Legislature approved August 19th, 1913 (Acts 1913, page 117) the same being an Act to regulate the sale of Stocks, Bonds, etc., or whether or not" the character of the business carried on by a navigation company is such as to bring it within the law creating the Railroad Commission of this State and extending the powers of the commission. In reply, I will say that while the character of the business is not set out in the letter of Mr. DeFore, I assume that the hw~iness carried on by this company is that of th~ transportation
111

of passengers and freight by water, and that its business makes it a common carrier. Any person wlfo carries on the business of transporting persons or freight for hire and carries on the busipess for the public generally and continuously for any period of time is a common carrier. See Code of 1910, Sections 2711 and 2712.
Fish vs. Chapman and Ross, 2nd Ga. 349. Deen vs. Wheeler, 7th Apps. Ga. 507.
Section 2663 of the Code of 1910 provides that the "Railroad Commission shall have and exercise all the power and authority heretofore conferred upon it by law, and shall have the general supervision of all common carriers," etc. Section 2665 of the Code provides that "each of the companies or corporations over which the authority of the Railroad Commission is extended by law shall be required to furnish said commission a list of any stocks, the issuance of which is contemplated, and it shall be unlawful for any of said companies or corporations to issue said stocks, bonds, notes, or other evidences of debt, payable more than twelve months after the date thereof, except on the approval of said railroad commission. '' Said Section further provides in what manner the commission shall proceed to obtain the facts upon which to base its approval or disapproval of such stocks, bonds, or other evidences of debt. I am of the opinion, therefore, that the matters referred to in the letter come squarely under the jurisdiction of the Railroad Commission of this State;
It will be noted also that Section 9 of the Act of 1913 provides that bonds, stock or other securities whose issue is regulated by a "public service commission" are excluded from the operation of that Act. The Railroad Commission of this State is a "public Service Commission," and therefore the stocks, etc., mentioned are excluded from the operation of the Act of 19'13.
Yours very truly,
CLIFFORD WALKER,
.Attorney-General.
112

The automobile license tax should be paid on an automobile owned by a municipality.
April 29, 1916. Hon. Philip Cook, Secretary of State,
State Capitol, Atlanta. DEAR Sm: Replying to your favor of recent date wherein you enclose letter from Ron. Geo. C. Palmer, Solicitor-General, Columbus, Georgia, raising the question as to exemptio~s of municipally owned automobiles from the payment of the registration taxes under the law of 1915, I beg to say that the question is not without difficulty. However, the tax is not one upon property, but is based upon police regulations. In view of the fact that this is a very important law and the failure of a city itself to comply with its terms would, in my judgment, encourage others to defy the law and in the view of further fact that the money derived is used for the benefit of all the people I have advised your department to insist upon the payment of the tax by the municipality. Such has been the precedent from the first and all the municipalities have paid for the registration. This registration will prove a safeguard to the city against damages caused by reckless driving of employees and otherwise be beneficial and I believe that the cities should and will cooperate with you in your efforts to enforce the law.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.
Where a loan and trust company has been given authority to exercise some of the powers and functions of a banking company the Secretary of State, upon application to him by such company, may properly grant the certificate renewing the charter provided all of the requirements of the law are complied with.
June 21, 1916. Hon. Philip Cook, Secretary of State,
State Capitol, Atlanta. DEAR Sm: I am in receipt of your favor of recent date, enclosing a communieation from Messrs. Ryals & Anderson, At-_ torneys, of l\Iacon, Georgia, in reference to the renewal of the charter of the Georgia Loan & Trust Co. You wish my opinion on the question as to whether or not, under Sections 2193 and 2194 of the Code of this State, you are
113

authorized to issue a certificate to said company renewing the charter thereof. It appears that this company was granted a charter by the General Assembly of this State on September 26, 1883, and that said charter was amended by an Act of the General Assembly approved September lOth, 1887. The Sections of the Code above cited refer to the renewal of charters of banking and other companies which have been incorporated by the General Assembly. The question in the case is whether or not the Georgia Loan and Trust Company may be denominated a banking company so as to authorize the renewal of its charter under the Sections referred to.
The Act of the General Assembly incorporating this company provides that the company shall have the following powers, among others :
"To do a general banking business, so far as to receive money on deposit for investment only, to make loans, upon any security, either real and personal, it may deem proper; discount or buy notes or other papers, buy, sell, draw and issue bills of exchange, either foreign or domestic, issue time and demand certificates of deposit, to certify checks, but these acts shall only be done in connection with and for the purpose of carrying on such business of rectliving money for investment."
The Act further provides that the ''Corporation shall have the right to make and negotiate loans secured by deed to real estate, etc., invest money in real estate or other security, either for its own account or for clients, etc." The other provision in the Act relating to the powers of the corporation seem to include most of the powers usually exercised by Trust Companies.
There is some doubt in my mind as to whether or not this company can properly be designated or denominated as a Banking Company. The powers conferred upon it by the Act are such as to indicate that it may properly be considered a Trust Company.
Morse, in his work on Banks (third edition) Paragraph 2, defines a bank as "An institution, usually incorporated, with power to issue its promissory notes, intended to circulate as money, known as bank notes, or to receive the money of others on general deposit; to form a joint fund that shall be used by the institution for its own benefit for one or more of the purposes of
making temporary loans and discounts, of dealing ill notes, for-
114

eign and domestic bills of exchange, coin, bullion,- credits, and the remission of money, or with both these powers, and with the privilege, in addition to these basic powers, of receiving special deposits, and making collections, for the holders of negotiable paper, if the institution sees fit to engage in such busi_ness.''
As a further definition, he says : ''Practically a bank is a place where deposits are received and paid out on check, and money is loaned on security. If the institution has the additional power of issuing its promissory notes to circulate as money, it is called a 'Bank of Issue.' ''
The Century Dictionary, in defining "Banks" classifies them under four distinct heads, viz: ''National B~nks, Private or State Banks, Loan and Trust Companies, and Savings Banks." It will be noted that authority is given the Georgia Loan & Trust Company to exercise some of the powers and functions of a banking company. For this reason I will advise that in the event an application is made by this Company under the Sections of the Code above referred to, you may properly grant the certificate renewing the charter provided all the requirements of the law are complied with.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.
When a clerical error is made in reporting the mileage of a county for the purpose of distribution of the State Automobile Fund there is no legal reason why such error should not be corrected and the adjustment made upon proper mileage.
July 14, 1916. H on. Philip Cook, Secretary of State,
State Capitol, Atlanta. DEAR SIR: I have your favor enclosing file in re distribution of the State Automobile Fund with reference to the County of Screven,. and asking my opinion as to the legality of the claim filed by said. County. It appears that in figuring the mileage of the County a clerical error was made and the number of miles reported to you and made the basis of the original distri:: bution was smaller than it should have been.
115

I have investigated the matter and can find no legal reason why the error should not be corrected and the County of Screven allowed the correct amount due her. I, therefore, recommend that the adjustment be made, based upon the correct mileage of the County.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.

No label shall be recorded with the Secretary of State that probably would be mistaken for a label already of record.

July 14, 1916. Hon. Philip Cook, Secretary of State,
State Capitol, Atlanta. DEAR Sm: I have before me your favor of even date enclosing application for the registration of the word "Co-Cola" advi~ ing me that you have refused to register the word on account of the similiarity of the formation of the letters to that of "Coca-Cola" already registered in your office in the year 1903. You state that in your judgment the case comes under a provision of the Section 3 of the Act of December 20, 1893, which reads:

-"No label shall be recorded that probably would be mistaken

for a label already of record."



In response thereto, under the conditions stated by you, I know of no legal reason why your judgment is not correct.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.

116

OPINIONS TO THE COMPTROLLER-GENERAL
The replacing of policies of one insurance company by those of another under any guise is contrary to the policy of the laws of this State.
July 28, 1915. Hon. Wm. A. Wright, Insurance Commissioner,
State Capitol, Atlanta. DEAR Sm: I have received your favor of even date, transmitting letter from 1\Iessrs. Lorick & Vaiden, of Augusta, and asking my opinion on the question therein raised. In response, I beg to say: I understand that these gentlemen desire permission to replace policies in one company, which I will call the old company, with those of another company, which I will call the new company. In order to effect this change they desire permission to return to the holders of policies in the old company commissions on such policies, these commissions to be applied to the payment of premiums on the policies of the new company. While it is claimed that this arrangement is sought in good faith after coming to the conclusion that the policies in the old company were not as valuable as they were represented to be, and it is desired to make restitution in part, at least, I am advised that the policyholders in the old company were in fact amply protected. Coming, as it does, from active agents of the new company, I have no hesitancy in saying that under the conditions named the arrangement is repugnant to the spirit of the rule against rebating commissions as well as the further rule against abating new premiums. To be perfectly plain the Department has not and should not lend its approval to any plan, however fair it might appear, whose practical effect would be the replacing of policies of one company by another. If an agent misleads a person and sells a policy which he afterwards finds to be worthless he can, if he wishes, miike good the loss, but this action must come as an original proposition,-
117

from a pure source, and not coupled with any plan of abatement of new premiums or the replacing of policies in one company with those of another. The doing of one good deed must not be made the excuse for the doing of another bad deed.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.

The "passing" of shares of stock in a domestic corporation owned by a non-resident decedent is subject to our Inheritance Tax Laws.

Atlanta, Ga., April 7, 1916.

Hon. W. A. Wright, Comptroller-General,

State Capitol, Atlanta.

DEAR SIR: I have your favor of April 5, 1916, enclosing a

letter from Hon. Henry McAlphin, Ordinary of the County of

Chatham, in which you ask my opinion on the following ques-

tion, relating to the construction of the Inheritance Tax Laws

of this State, to wit: In a case where a non-resident of this

State dies, and at the time of his death is the owner of shares

of stock in a corporation of this State which said shares pass on

the death of the decedent by will or by the laws regulating

descents and distributions, the certificates representing such

shares not being within the State, are such shares of stock in the

domestic corporation owned by such non-resident subject to the

Inheritance Tax Laws of this State?

In reply, I will say that this question has never been passed

upon by the Supreme Court of Georgia. However, this very

question has been decided by a number of the courts of last resort

in other States, and in some of these cases the provisions of the

State laws on the subject are similar to the provisions of the

law enacted by the Legislature of this State in the year 1913.

After a careful consideration of the subject I am of the opinion

that the "passing" of shares of stock in a domestic corporation

owned by a non-resident decedent is subject to our Inheritance

Tax Laws even though the certificates representing the shares

are not physically within this State. My opinion is based upon

the decisions of the courts of last resort in other States and upon

the reasoning contained in these decisions.



118

Our Statute on this subject provides as follows:
"All property within the jurisdiction of this State, real and personal, and every estate and interest therein, whether belonging to the inhabitants of this State, or not, which shall pass on the death of a decedent by will or by the laws regulating descPnts and distributions" shall be subject to- taxes.
The above quotation is taken from Paragraph one, Section one, of the Act of 1913. It will be noted that for the most part the Georgia Law follows the New York Law on this subject and especially so as to Paragraphs one and two of Section one of the Act.
The wording of the New York Law, which was enacted by the State of New York in 1892 is, in part, as follows:
"A tax shall be imposed upon the transfer of any property, real or personal, or of any interest therein, or income therefrom, when the transfer is by will or by the intestate laws of this State, and shall include all property or interest therein, whether situated within or without this State, over which this State has any jurisdiction for the purpose of taxation."
Thus it will be seen that the Georgia law imposes a tax upon the passing of; ''All property within the jurisdiction of this State" and the New York Law imposes a tax upon the transfer of all property "over which this State has any jurisdiction for the purposes of taxation." It will thus be seen that provisions of the Georgia law in this respect are identical in effect with the provisions of the New York law. For this reason, the decisions of the highest courts of New York are peculiarly valuable in arriving at the true intent and meaning of the Georgia law. In the case of Mann vs. Carter, 74 N. H., page 345, the Supreme Court of that State says:
"When the Legislature adopts the statutory language of an oth.er State, it is ordinarily presumed to have bad in mind the existing decisions of such State defining the extent and purpose of the statute, and to have used the identical phraseology in the sense thus indicated."
For a long time it has been settled by the decisions of the courts of New York that shares of stock in corporations existing under the laws of that State, held by, and represented by certificates in the possession of non-resident decedent at the time of his death at his domicile out of the State and which then
119

pass to non-residents are subject to the Inheritance Tax. This was first decided in 1896 in the matter of The Estate of Henry Bronson reported in the 150 New York Reports, page 1. The ~easoning of Judge Grey who delivered the opinion of the Court of Appeals of New York in this case is so clear and cogent that I quote a portion of the same here. Judge Grey, speaking for the court, says:
"By Section one, a tax is imposed upon the transfer of any real or personal property of the value of $500 or over, in the following cases, namely, viz: When the transfer is by will or by the intestate laws of this State from a resident decedent; or when the transfer is by will or intestate law, or property within the State and the decedent was a non-resident at the time of his death. The important words to be noticed in this Section, which imposes the tax, are, in the case of a non-resident decedent,, 'property within the State.' Their importance is evident; inasmuch as the attempt of the State to collect a tax, where the decedent was not within the jurisdiction, is limited, to that which posses the legal attributes and characteristic. of property here. In that connection, reference may be made to Section 22 of the Act, meaning all property or interest therein, 'over which this State hab any jurisdiction for the purposes of t:,txation.' "
"The attitude of a holder of shares of capital stock is quite other than that of a holder of bonds, towards the corporation which issued them. The bond holders are simply creditors, whose concern, with the corporation, is limited to the fulfillment of its particular obligations, the share holders are persons who are in terested in the operation of the corporate property and franchises and their shares actually represent undivided interests in the corporate enterprise. The corporation has the legal title to all the properties acquired and appurtenant; but it holds them for the pecuniary benefit of those persons who hold the capital stock. They appoint the persons to manage its affairs; they have the right to share in surplus earnings and, after dissolution, tqey have the right to have the assets reduced to money and to have them ratably distributed. Each share ,represents a distinct interest in ti:te whole of the corporate property."
"As personalty, the legal situs does follow the person of the owner of the shares; but the property is in his right to share in the net produce, and, eventually, in the net residue of the corporate assets, resulting from liquidation. That right as a chose in action must necessarily follow the share holders person; but that does not exclude the idea that the property, as to which the right relates and which is, in effect, a distinct interest in corporate property, is not within the jurisdiction of the State for the purpose of assessment upon its transfer throu!!'h the opera-
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tion of any law, or of the act of its owner. The attempt to tax a debt of the corporation to a non-resident of the State, as being property within the State, is one thing, and the imposition of a tax upon the transfer of any interest in, or right to, the corporate property itself is another thing. The corporation is the creation of State laws and those who become its member!\, as share holders are subject to the operation of those laws, with respect to any limitation upon their property rights and with respect to the right to assess their property for the purposes of taxation."
In the case of J ermain vs. Lake Shore, etc, Railroad Company, the Court of Appeals of New York held that certificates of stock in the possession of a decedent were merely evidence as to the number of shares of stock which the holder has, and that the same right would have existed whether any certificates had ever been issued as evidence of these rights or not. 91 N. Y. 483.
The next time the Court of Appeals of New York had before it the question of the taxability of stock in a domestic corporation held by a non-resident decedent was in 1899, in the l\Iatter of the property of Emily M. Fitch, 160 N.Y., page 87. In this case Judge Parker delivered the opinion of the court in which the Bronson case was reviewed and affirmed and it was again held that such shares of stock were taxable under the transfer Act.
In 1902 the Court of Appea"ls of New York held that shares of stock in a joint stock association of the State of New York, held by a non-resident decedent, were subject to taxation under the transfer Act. See Matter of the Estate of George Jones, 172 N. Y. 575.
In 1905, the Court of Appeals of New York, in the case of Potter vs. Paulmer, 183 N. Y. 238, held:
"Shares of capital stock of a domestic corporation owned by a non-resident decedent represent an interest in property within the jurisdiction of this State for the purpose of taxation upon its transfer, and the assessment thereof is properly computed upon the value of his interest in the whole of the corporate property as evidenced by the number of shares of stock of which he dies possessed and not upon that proportion of its value which represents the proportion of the capital and assets of the corporation employed here."
Upon inspection it will be found that Section one, Paragraph one, of the Georgia Iyheritance Law, is a literal copy of the law
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passed by the Legislature of the State of New Hampshire in the year 1905. This law was before the Supreme Court of New Hampshire .for construction in the year 1907 in the case o.f Gardner vs. Carter, 74 N. H. 507. In that case the Supreme Court o.f New Hampshire followed the Supreme Courts of New York and Massachusetts and held:
"Shares of stock in a domestic corporation, which form part of the estate of a non-resident decedent, constitute property within the jurisdiction of this State, and are subject to the tax imposed by Chapter 40, Laws 1905."
Upon inspection it will be found that Paragraph one, Section one of the Georgia Law is almost a literal copy of the law enacted by the State of Massachusetts in 1891. This law was before the Supr_eme Court of Massachusetts for construction in the case of Kingsbury vs. Chapin, 196 1\Iass. 533. In that case the Supreme Court of Massachusetts followed the Court of Appeals of New York in the Bronson and Fitch and Jones cases. The court said:
"We think that stock in such a corporation is 'property within the jurisdiction of the Commonwealth,' under the language of our statutes authorizing the taxation of collaterit! inheritances. We think it is property within the jurisdiction of the Common wealth in a constitutional sense, such as to enable the State to subject it to taxation as against a non-resident owner. This fol lows from decisions and reasoning in Graves vs. Shaw, 173 Mass. 205, and in Moody vs. Shaw, 173 Mass. 375. See also The Amer ican Coal Company vs. Commissioners, 59 Md. 185; St. Albans vs. National Car Company, 57 Vt. 68, State vs. Travellers Ins. Co., 70 Conn. 590; Travellers Ins. Co. vs. Com., 185 U. S. 364.
The Supreme Court of the State of Massachusetts held such shares of stock in a domestic. corporation held by a non-resident decedent taxable in the following cases:
Graves vs. Shaw, 173 Mass. 205. Moody vs. Shaw, 173 Mass. 375.
The Supreme Court of the State of New Jersey held such shares of stock belonging to a non-resident decedent taxable in the case of Dixon vs. Russell, 78 N.J. (Law) 296.
The Supreme Court of the State of Maryland held such stocks liable .for taxation in the case of Maryland vs. Dalrymple, 70 Md. 294.
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On this subject see case of Neilson vs. Russell, 76 N. J. (Law) 27 and also the same case, 76 N. J. (Law) 655.
Also on the general subject of the situs for taxation of personal property see case of Alvany vs. Howard, 55 N.C. 51. This case involved an Inheritance Tax Law and the opinion of the court delivered by Pearson, J., in 1853 is a very able and interesting discussion on the subject.
Upon the authority of the decisions above cited and the reasoning contained therein, I am clearly of the opinion that the stock mentioned and referred to in your letter, or rather the passing or transfer of the same, is subject to taxation by this State under the Inheritance law approved August 19, 1913.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.
The Insurance Commissioner is authorized to withhold a license to do business in this State to an insurance company whose contract of insurance contains provisions contrary to the laws of this State.
July 12, 1916. Han. Wm. A. wright, Insurance Commissioner,
State Capitol, Atlanta. DEAR SIR: I have before me your favor of even date in which you ask my opinion as to granting the license to the Heralds of . Liberty to do business in Georgia. I beg to advise that Section 2498 of the Code provides that:
"The assured may direct the money to be paid to his personal representative: or to his widow or to his children or to his assignee; and upon such direction given, and assented to by the insurer, no other person can defeat the same. But the assign ment is good without such assent."
The Supreme Court in the case of Ancient Order U. W. vs. Brown, 112 Ga. 545, decided that:
"The public policy which prevents one person from insuring a life of another in whose life he has no insurable interest is based upon the presumption that a temptation would be held out to the one taking out the policy to hasten, by improper
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means, the time when he should receive the amount of the insurance named in the policy."
To the same effect, see Union Fraternal League vs. Walton, 109 Ga. 459.
I also call your attention to Section 6 of the Act approved August 17th, 19'14, Section 6 which limits the beneficiary.
It appears to me that the Heralds of Liberty, in their contract, come dangerously near violating the spirit of the law in several particulars herein referred to, if they do not actually transgress . the law. There is marked evidence of chance, if not actual spirit of gambling, involved and there is so mucp. doubt as to the good morals of the contract as to challenge your discretion to say the least of it.
ltours very truly,
CLIFFORD WALKER,
Attorney-General.
An association which writes insurance for employees of the Federal Government can legally qualify as a Fraternal Order under the Act approved August 17th, 1914.
July 18, 1916. Hon. W. A. Higgins, Deputy lns1trance Commissioner,
State Capitol, Atlanta. DEAR Sm: I have before me your favor of recent date enclosing copy of the Constitution and By-Laws of the Railway Mail~ Mutual Benefit Association and inquiring if this association can . legally qualify &S a Fraternal Order under the Act approved August 17, 1914. Section 32 of said Act reads as follows :
"The Provision of this Bill shall not apply to Fraternal Benefit Societies whose membership has not exceeded five thousand members, and that all Societies writing insurance for employees of the Federal Government and Public Utilities Companies shall come within the provisions of this Act."
I am advised thaf this Association writes insurance for employees of the Federal Government and am therefore of the opmwn that it comes within the provision of said Act and is subject to the terms of the same.
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I am advised by the author of this Section that this construction is in accord with the intention of the Act.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
The Insurance Commissioner can legally accept for deposit under Sections 2554 and 2557, of the Code county and municipal bonds duly and legally validated under the laws of this State.
September 30, 1916. Hon. Wm. A. Wright, Insuran(.:e Comtissioner,
State Capitol, Atlanta. DEAR SIR: I have before me your favor of yesterday, asking an opinion as to the meaning of the words "Bonds of this State which, according to the Acts and Resolutions of the General Assembly, are valid," in reference to Sections 2554 and 2557 of the Code. In other words, are Georgia State bonds alone contemplated in said language, or are Municipal bonds duly validated also contemplated? It is my opinion that the latter is the case. The language itself so implies. The Act does not say State Bonds or Georgia Bonds. Such bonds are, of course, valid without Acts or Resolutions of the Gene~al Assembly. In my judgment, the words ''which, according to the Acts and Resolutions of the General Assembly are valid" refer to bonds which are validated under the Act or Resolution of the General Assembly. I am strengthened i~ my views on the subject by consideration of the fact that the policy of this State would encourage the sale of bonds of her Municipalities at a favorable price. Moreover, similar provisions of the Code permit in express terms the deposit of Municipal bonds, duly validated. Answering specifically your question I beg to advise that you can legally accept for deposit under the Sections named, County and Municipal bonds duly and legally validated under the laws of this State.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.
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Section 1102 of the Code refers only to refund of taxes paid into the Treasury by tax-collectors by mistake.
November 17, 1916. Hon. W. A. Wright, Comptroller-General,
State Capitol, Atlanta. DEAR SIR: I am returning herewith file in reference to the claim of J. L. Peavy, who asks for a warrant from the Governor in refund of alleged over-payment of oil inspection fees. I regret to advise that in my judgment the Section (1102) on which this claim is based was intended to refer only to refund of taxes paid into the Treasury by Tax-Collectors by mistake. I advise, therefore, that this petiti_on must be referred to the Legislature.
Yours very truly, CLIFFORD WALKER, .Attorney-General.
The general law requires the Tax-Receiver, under certain conditions, to double tax property, both real and personal, when the same is not returned tor taxation by the owner within the time prescribed by law. Such defaulter may be relieved of such double tax upon his land, however, by paying the taxes thereon before December 20th.
December 13, 1916. General William A. Wright, Comptroller-General,
State Capitol, Atlanta. DEAR SIR: I have before me your favor of even date asking my interpretation of Section 1107 of the Political Code. I beg to advise that this Section is a relief measure and must be construed strictly. In other words the general law requires the Tax Receiver, under certain condition, to double tax property, both real and personal, when the same is not returned for taxation by the owner within the time prescribed by law. Section 1107, however, provides that a person may be relieved of the double tax upon his land if he voluntarily comes up and pays the single tax on the land before December 20th of the year in which the tax is assessed. As stated, this Section must be construed strictly and so construing it, it can not be held to relieve
126

the defaulter of the double tax on any other property except land.
l\Iy final conclusion is that a defaulter failing to give in his tax: as required by law and the Tax Receiver assessing and double taxing said property, the defaulter is liable for the double tax on both land and personalty. However, the defauiter may be relieved from the double tax on his land byvoluntarily paying the tax before December 20th. He can not be relieved of the double tax on his personalty by paying the tax before December 20th. His only relief would be by application to the Ordinary or County Commissioners in their discretion with evidence of providential or other satisfactory excuse, as provided in Section 1108 of the Code.
Answering your second question I beg to advise that taxes upon live stock and cattle should be returned in the county in which is located the farm or lands upon which the live stock and cattle are located. Such live stock and cattle are incident to such lands just as the farming implements are incident to the land and the situs of said personalty is the situs of the land, to which it is incident.
Trusting that this is the information that you desire, I am, Yours very truly,
CLIFFORD WALKER,
Attorney-lieneral.
1. Municipal bonds, and other bonds of like character, are subject to the provisions of the succession tax contained in the Inheritance Tax Law.
2. Legacies to charitable, educational or religious institutions, and the like, are taxable under the provisions of the Inheritance Tax Law.
3. A pecuniary bequest made to an executor in lieu of his commission which is less than the amount he would be entitled to as com. missions is not taxable under the Inheritance Tax Law.
4. After allowing the exemptions expressly fixed by law the Inheritance tax must be calculated presently upon all classes of property descending or transferred.
Hon. Wm. A. Wright, Comptroller-General, State Capitol, Atlanta.
DEAR SIR: I have before me the matter of the estate of Jame&
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L. Foster, deceased, wherein counsel for the Executor raises two questions, and you yourself raise two other questions. Taking them up in order, I respectfully submit the following:
I. Exception is taken to the finding of the Ordinary acting under Section ll of the Act approved August 19, 1913, known as the Inheritance Tax Act, wherein Municipal Bonds amounting to $69,500.00 ar:l found subject to the Inheritance Tax.
It is not stated that these bonds are non-taxable bonds under the regular tax laws of the State. Granted that they are so non-taxable the courts have held them subject to the Inheritance Tax.
Gray on Limitation of Taxing Powers, 744. Plummer vs. Coler. 178 U. S. 115. U. S. vs. Perkins, 163 U. S. 625. Scholey vs. Rew. 23 Wall 331. .Magoun vs. Illinois Rank, 170 U. S. 283 . .Murdock vs. \Yard, 178 U. S. 139148.
"The constitutionality of the (inheritance) taxes has been declared, and the principles upon which they are based explained, in various cases cited. It is not necessary to review these cases or state at length the reasoning by which they are supported.
They are based on two principles: i. An Inheritance Tax is
not one on property, but one on the succession. 2. The right to take property by devise or descent is the creature of the law, and not a natural right-a privilege, and therefore the authority which confers it may impose conditions upon it (a State may deny the privilege altogether-Knowlton case). From these principles it is deduced that the States may tax the privilege, discriminate between relatives, and between these and strangers, and grant exemptions; and are not precluded from this power by the provisions of the respective State Constitutions requiring uniformity and equality of taxation."
l\fagoun vs. Illinois Bank, 170 U. S. 283, 288. Knowlton vs. Moore, 178 U. S. 41, 56. Mager vs. Grima, 8 How. 490. U. S. vs. Perkins, 163 U. S. 625, 629. Snyder vs. Bettman, 190 U. S. 249, 252. Scholey vs. Rew. 23 Wall 331, 346. 2. Further exception is taken to the report of the Ordinary finding that devises of $1,000.00 to the Young l\Ien's Christian Association, the Young Women's Christian Association, St. John's Church and the Union Society are subject to the Inheritance Tax.
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In contemplating these most worthy institutions one is prompted by a great desire to find authority to hold' these devises not subject to any burdens. Indeed, some of the States expressly provide for such exemption. It is probably true that such exemption would have been provided in Georgia's law had our lawmakers' attention been drawn to the subject. But unfortunately the law was not so written.
The Supreme Law of the State, Article 7, Section 2, Par. 2, provides:
"The General Assembly may, by law, exempt from taxation, all public property, places of religious worship, or burial; all institutions of purely public charity; all bulldings erected for and used as a college, incorporated academy or other seminary of learning, the real and personal estate of any public library, and that of any other literary association, used by or connected with such library; all books and philosophical apparatus; and all paintings and statuary of any company or association, kept in a public hall and not held as merchandise, or for purpose of sale or gain: Proj-'ided, the prpperty so exempted be not used for purposes of private or corporate profit or income."
The language of this enabling provision was followed almost identically by the General Assembly in the Statute Law of the State: Section 998.
If this provision be relied on as a basis for the exemption to these "institutions of purely public charity," it would be sufficient answer that the buildings, the campus, the plant actually in use in the operation of these institutions are 'exempt but not income producing property:
"Income producing property is taxable, though the income be used for charitable or educational purposes."
Park's Code, 998, and cases cited. 117 Ga. 678.
But these devises are subje~t to the Inheritance Tax on another principle. They are taxable before they reach the institutions, even though it be granted that the property would otherwise be taxable.
"A legacy to a charitable, educational or religious institution is not exempt from taxation (inheritance taxation) merely because the property of the institution is exempt from general taxes."
37 Cyc. 1572, 4 (b), and cases cited. Sherrill vs. Christ Church, 121 N. Y. 701.
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Presbyterian Church lld. of Missions, 11 N. Y. Suppl. 310. In re Eav::maugh 6 N. Y. Sup!. 669. In re Keith 5 N. Y. Sup!, 201. 1 Connolly Surr. (N.Y.) 370.
I reluctantly tlonclude that the devises to these worthy institutions are subject to the Inheritance Tax.
3. You inquire of me my opinion as to the correctness of the ruling of the very able Ordinary in the following paragraph of his report:
"I find that u"nder Item Four John A. Foster, the brother of Testator, is given $15,000.00 in lieu of his commissions and I rule that there is no Inheritance Tax due the State on said amount _ as the commissions would have amounted, for receiving and <lis bursing said estate, to a good deal more than $15,000.00 on which there would have been no Inheritance Tax."
This question has given me more anxiety than any of the others. The first impression was that the brother had taken this bequest under the will and so taking he must take with it the burdens imposed thereon. A studied investigation of the authorities does not free the question from doubt and difficulty. Indeed, some of the jurisdictions hold that this first impression is sound.
In the English Courts it was held:
"It is thoroughly well settled that where you have a gift or disposition in favor of an executor expressed to be in return for his trouble, that does not prevent the disposition being a legacy upon which duty is chargeable."
"Likewise, where a testator declares that Trustees for carry ing on his manufacturing business should be paid an annual sum, all such annual sums were liable to taxation."
In re Thorley Law Journal 1891, Vol. 60. Ch. Div.
However, it should be here noted that the law required Trustees as well as Executors, in the absence of express provisions to the contrary, to perform the duties they undertake without receiving any remuneration for performing the duties. In re Thorley.
In another case a legacy was given a lady on condition that she should found a horne for the testator's children. It was not disputed that she must pay duty on the whole legacy, although it was a case in which the burden of the legacy might exceed the
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benefit. Attorney-General vs. Sharp, Law Journal 1891, Vol. 60. Ch. Div.
The decisions of some of the American courts tend to the same conclusion. For instance in the Gould case, 156 N.Y. 423, it was held that if a testator bequeaths a legacy to a creditor in payment of his claim and the creditor accepts it, the transfer is taxable.
So it was held that if a widow elects to take a legacy under the will in lieu of dower it is taxable.
Re Riemann 42 :Misc. (N. Y~) 648. Re DeGraff 24 Misc. (N. Y.) 147.
But the same Court held, In re Bartlett, 4 1\Iisc. (N. Y.) 380 25 N. Y. Suppl. 990, that if taxable the bequest must be a gift and not the payment of a debt or an advancement of compensation for services to be rendered.
See also In re Thorley, supra., 37 Cyc. 1668, and cases cited.
The Ohio courts have held:
"Where a pecuniary bequest is made to an executor in lieu of his commissions, only the excess of such legacy above the reason able value of his services is taxable."
In re Hooper 6 Ohio. S. & C. Pl. Dec. 560. 4 Ohio N. P. 186.
These holdings seem to be based on another principle. In America Executors are entitled to compensation for their services fixed by the law. Commissions of such executors are expenses of administration and therefore chargeable to the estate and not to the legatees or devisees. To hold them subject to taxation would be to charge to the legatees or devisees funds which never reached them.
After mature reflection I am of the opinion that this latter impression is the sounder. I am advised by the author of the Inheritance Tax Act that the Act follows closely the provisions of the New York Act. For this reason I have noted and followed wherever possible -decisions of the New York Courts. I am, therefore, finally placing my opinion on the authority of these Courts which holds that the commissions should be deducted before the Tax is fixed.
In re Kennedy 46 N. Y. Suppl, 906. In re Van Pelt llS N. Y. Suppl. 655.
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As bearing out this position it is interesting to note a Minnesota case practically identical with the English case, cited hereinbefore (In re Thorley). Here a trustee was named to manage a wholesale liquor business after the death of the testator for which services he was to receive $5,000 a year for ten years. In this case it was held that while commissions of executors are exempt from taxation this compensation of a trustee for carrying on the business was taxable.
"The expenses of the administration of the estate of a deceased person are proper to be deducted in ascertaining the value of the estate for the purpose of taxation under the Inheritance Tax Law. The expenses of administration are imposed as a matter of law and are caused by the use of the machinery of the law provided by the State to wind up the affairs of deceased persons, and can not ordinarily be avoided; hence it is just that they should be de ducted from the valuation of the estate. Trusts, however, of the character of that here before the court, are created for the benefit of those to whom the property ultimately passes, are of volun tary creation, and intended for the preservation of the estate."
State ex rel. vs. Probate Court of Hennepin Co. 101 Minn. 487. Gihon's estate, 169 N. Y. 443. Silliman's case, 79 App. Div. 98-80 N. Y. Suppl. 336.
While in the case passed on by the Ordinary a bequest is given in lieu of commissions, the Ordinary certifies that the amount is smaller than the aggregate of the commissions fixed by law and under the controlling principles cited I am finally of the opinion that the Ordinary's ruling is correct.
4. Your last inquiry brings into question this finding of the Ordinary:
"I find that under the terms of said will onehalf of the income of the residue of said estate is payable to Mrs. Elizabeth L. Foster for her life but my ruling is that this item is not subject to an Inheritance Tax."
The Ordinary gives no reason for this finding. I haven't the will before me and can not judge for myself directly. If he bases his judgment on the fact that the tax has already been calculated on the amount of the property bearing the income then his ruling is correct. It is enough for me to say that after allowing the exemptions expressly fixed by law the tax must be calculated presently upon all classes of property descending or transferred, which tax must be paid by the executor.
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"If the property passing as aforesaid shall be divided into two or more estates, as an estate for years or for life and a remainder, then said tax shall be levied on every estate and interest separately, according to the value of the same at the death of the decedent that the value of the remainder. in said "property so limited shall be ascertained by deducting the value of the life estate, term of years or period of limitation from the fair market value of the property 110 limited and the tax on the several estate or estates, remainder or remainders or interest shall be immediately due and payable to the Tax-Collector of the proper comity, and said tax shall accrue as provided in Section 3 of this Act (providing that the same shall be a lien on the property of the estate).
Inheritance Tax Act, Acts of 1913, page 93, Section 4.
In other words, the taxes accrue on the value of all the property as ascertained under th~ terms of the Act payable presently. When paid, the income produced by said property will not be so taxable.
5. It seems that the Ordinary has allowed an exemption of $5,000 each to several of the legatees. In this connection I call your attention to the opinion rendered by my distinguished predecessor, Attorney-General Grice, wherein he holds that only one such exemption shall be made from the remainder.
Report and Opinions, 1914, page 129.
You will note that our Supreme Court has not passed upon this new law. Upon consideration thereof the questions herein raised will be finally determined. My conclusions may not be entirely sound. But until they are so finally adjudicated the officials will, in my opinion, be safe in following them.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
133

OPINIONS TO THE STATE TREASURER

In a county where there-are two State depositories the tax-collector

in such county should deposit the State funds collected by him

altogether with the bank named by the Governor in his proc-

lamation required under Section 1260 of the Code.

c [

~

;i~ i .



b c" j : ) ;ul; ;~{i~l~~:

Hon. W. J. Speer, State Treasurer, State Capitol, Atlanta.
DEAR SIR: I have yours of the 5th inst. requesting my opinion on the question as to whether in a county of this State where there are two State depositories the tax-collector in such county would be authorized under the law to divide the State funds collected by him between the two State depositories, or would he be required to deposit such funds altogether with the bank named by the Governor in his proclamation required under Section 1260 of the Code.
The Section of the Code referred to provides that at the time the Governor makes the appointment of the depositories, he shall make a list of the counties whose tax-collectors shall be instructed to pay State funds into each depository, and that such tax-collectors shall pay into no other depository than that named by the Governor. Said Section also provides that the Governor shall make known by a proclamation duly published in the city where such depository is located the apportionment of counties belonging to such depository, and such proclamation shall give the name of the depository selected to receive the State funds collected from such counties.
In my opinion, the Section above mentioned, construed in connection with the entire Chapter 5 of the Code, means that the tax-collectors of the several counties are required to deposit the funds of the State only in the depositories named in the said proclamation of the Governor. I can find no provision of the law authorizing the tax-collectors to deposit State funds in any other depository than that named in the said proclamation. If it should happen that there are in-any county other

134

State depositorl.es not named in the said prociamation, i do not
think such depositories are such as in contemplation of the law, as was intended, should receive from the tax-collectors the State funds.
Section 1251 of the Code provides that State depositories are to make satisfactory contract~ relating to interest on State funds with the Governor, and Section 1252 of the Code provides for the giving of -bond by depositories handling State funds, said bonds to be approved by the Governor. One of the purposes of the said proclamation doubtless was to make known to the tax-collectors and others interested the fact that satisfactory contracts had been made with the Governor relating to State funds, and that proper bonds had been given and approved by the Governor.
Yours very truly,
CLIFFORD wALKER,
Attorney-General.

Where an appropriation was made for the Georgia State Sanitarium, under a special appropriation Act of the Legislature for 1914, and a requisition was made in proper form to the Executive Department for the balance due, on such appropriation on December 5th, 1914, but this requisition was not sooner honored because of lack of funds in the State Treasury, it is legal for the Treasurer of the State to honor" the Governor's warrant for such balance, and his duty also.

Hon. W. J. Speer, State Treasurer, State Capitol, Atlanta.

September 22, 1915.

I}EAR Sm: I have before me request for an official opinion submitted through Mr. Williams of the Executive Department wherein the question i~ raised as to the legality of the payment of. the balances of appropriations made by the General Assembly of 1914 to the Georgia State Sanitarium under a Special Appropriation Act known as No. 514, and published in the Official Acts of the Legislature for 1914 on page 19.

The law governing such cases is expressed in Section 228, Paragraph 15 of the Civil Code, to wit :

135

"He (the Treasurer) shall not pay any appropriation due and not called for within six months after the expiration of the fiscal year for. which it is appropriated, but it reverts to the general fund in the Treasury."
Attached hereto and furnished from the files of the Executive Department is a requisition in proper form from the Trustees of the Sanitarium of date December 5th, 1914, calling for the balances in question. I am advised that this requisition was not sooner honored because of lack of funds in the State
I
Treasury. Under the conditions stated it is my opinion that it is not
only legal but your duty to honor the Governor's warrant issued on this requisition as soon as the funds in the Treasury will justify its payment.
Yours very truly, CLIFFORD WALKER, Attorney-General.
A bank examiner in charge of a bank whose solvency is being examined into or pending application for a receiver under the Georgia Banking Laws should hold and preserve the assets of
such bank in statu quo pending the order of the Treasurer restoring the bank to its former status or the order of a court appointing a receiver.
November 10, 1915. Hon. J. 0. Anderson, Chtef Clerk Treasury Department,
State Capitol, Atlanta. DEAR SIR: I have before me your request for an opinion on the question whether or not the Bank Examiner in charge of a Bank whose solvency is being examined into or pending application for a Receiver under the Georgia Banking laws has the authority to return notes held by such Bank for collection endorsed by another bank as collateral notes, held against bills payable, said notes bearing their collection stamp :. ''For collection and return." Responding thereto I beg to say that the Bank Examiner is in charge of such Banks as a quasi Receiver; it is his duty to hold and preserve the assets of such bank in statu quo pending the order of the 'freasurer restoring the Bank to its former
136

status or the order of' a Court appointing a Receiver. In the absence of an order of court I would hold it dangerous to change the status of any of the assets or possessions of the Bank and as a general rule I would advise you to await an order from Court. There may appear exceptions to this general rule but unquestionably the rule is a safe one.
Yours very truly, CLIFFORD WALKER, Attorney-General.

The Acts of 1914 known as No. 510, the appropriation for the eradication of cattle tick, and No. 473, the appropriation for the further maintenance arid support of the Agricultural Department, are to take effect upon their approval by the Governor and the appropriations annually made are to be prorated by the month.

Nov. 15, 1915.

Hon. W. J. Speer, State Treasurer,

State Capitol, Atlantl!

DEAR SIR: I have before me your request for an opinion as

to the time when the Acts of 1914 known as No. 510, the ap-

propriation for the eradication of Cattle Tick, and No. 473, the

appropriations for the further maintenance and support of the

Agricultural Department and as to how the money appropriated

shall be divided as to time. In reply I beg to say the intent is

not clear and I therefore advise you to give to the Acts the only safe construction, v~z. : they take effect upon their approval by

the Governor (containing nothing in the body of the Acts ex-

pressly to the contrary) and the appropriations annually made
are to be prorated bY the month. In other words, an appropria-

tion of express

$d1i2r~0~0t0io.0n0asantnoutaalklyin, gapefpfreocvt eodr

August divison

17, 1914, without as to time, should

be held to take effect August 17, 1914, and the Treasurer will be

safe in paying out the appropriation in installments of one-

twelfth or $1,000.00 at the end of each month succeeding said

August 17th, 1914.

')'rusting that I have made myself clear in this matter,

Yours very truly,

CLIFFORD WALKER,

Attorney-General.

137

The State Bank Examiner of this State under the law has no authority or jurisdiction to supervise in any way or to any extent the business of private banks or bankers in this State.

Hon. W. J. Speer, State Bank Examiner, State Capitol, Atlanta.

May 20, 1916.

DEAR SIR: I have your favor of May 18th il_l. which you ask

my opinion on the question as to whether or not under the law the State Bank Examiner has any authority or jurisdiction to supervise in any way or to any extent the business of private

banks or bankers in this State.

In reply I will say that Section 2311 of the Code of 1910 provid~s as follows:

"The foregoing provisions shall not apply to any private bank or bankers doing business in this State."

The above quoted paragraph is found at the end of Section 3, Chapter 2, and Article 1 of the Code: Said Section 3 sets out the law upon the subject of the State Bank Bureau and defines the powers and duties of the State Bank Examiner. The term "foregoing provisions" evidently refer to all the provisions of said Section 3 of the Code. This is unquestionably true when we consider Section 33 of the Act of the Legislature of 1907 (Acts 1907, page 85). The Bank Bureau was created by the Act of 1907 above referred to and said Section 33 thereof reads as follows:

"That nothing in this Act herein contained shall be so construed as to apply to any private bank or bankers doing business in this State."

Answering your question, I will say that in my opinion the State Bank Examiner of this State under the law has no authority or jurisdiction to supervise in any way or to any extent the business of private banks or bankers in this State..
Yours very truly,
CLIFFORD wALKER,
Attorney-General.

138

Section 210 of the Penal Code of 1910 is not in conflict with, nor in any wise repealed or modified by Section 2275 of the Civil Code of 1910 or the Act of the Legislature approved August 22, 1905.
May 27, 1916. Hon. W. J. Speer, State Bank Examiner,
State Capitol, Atlanta. DEAR SIR: I am in receipt of your letter of 1\Iay 24th in which you request my opinion on the question as to whether or not Section 210 of the Pe:oal Code of 1910 is in conflict with Section 2275 of the Civil Code of 1910, and whether or not said Section 210 Penal Code is repealed or in any wise a:ffe~ted by the Act of the Legislature approved August 22, 1915 (Acts 1905, page 74). Section 210 of the Penal Code provides as follows:
"Any officer or agent of any bank, or other corporation, who shall use or borrow for himself, directly or indirectly, any money or other property belonging to any bank or other corporation of which he is an officer or agent, without the permission of a ma jority of the board of directors, or of a committee of the board authorized to act, shall be guilty of a misdemeanor."
Section 2275 of the Civil Code provides as follows:
"No bank or corporation doing a banking business shall loan to any officer of the bank without good collateral or other ample security; and when such loan exceeds ten per cent. of the capital stock of the bank, it shall not be made until approved by a majority of the directors of the ba~k, evidenced by their signatures in writing."
In reply to your question I will say that in my opinion said Section 210 of the Penal Code is not in conflict with Section 2275 or with the Act of the Legislatqre above mentioned which is codified in said Section 2275, nor is said Section 210 in any wise repealed or modified by said Section 2275 or the Act of the Legislature codified therein.
Both of these Sections were placed in the Code of 1910 by the Codifiers and adopted or enacted by the Legislature. It is a familiar rule of construction that Sections of the Code relating to the same subject matter, and which were codified at the same time, must be so constructed, if possible, as to harmonize with others. Cited, Gillis vs. Gillis, 96 Ga. 11. Section 210 of the Penal Code provides that any officer or agent of any bank shall
139

not be permitted to use or borrow any money or property belonging to the bank without the permission of a majority of the board of directors, or of a committee of the board authorized to act. This Section does not require such permission of the board of directors to be evidenced in writing. It provides that such officer or agent shall not use or borrow any money or property from the bank or other corporation without the permission of the board of directors. If such officer or agent does borrow or use such money without the permission required, under this Section, he is guilty of a misdemeanor.
Said Section 2275 of the Code of 1910 is taken from Section 1914 of the Code of 1895, and from the Act of the Legislature above mentioned. Said Section 1914 as it appears in the Code of 1895 reads as follows: "No bank or corporation doing a banking business shall loan to any officer of the bank without good collateral." The Act of the Legislature of 1905 above referred to amended said Section 1914 of the Code of 1895 by adding thereto the following words "or other ample security; and when such loan exceeds ten per cent. of the capital stock of the bank it shall not be made until approved by a majority of the directors of the bank, evidenced by their signatures in writing,'' so that said Section would read as above quoted. It will be noted that.this amendment of 1905 did not undertake to affect in any way Section 210 of the Penal Code. Section 2275 is therefore to be construed in harmony with Section 210. The former requires that no bank shall loan one of its officers any money without good collateral or other ample security. It further provides that where a loan is made to an officer of the bank, and such loan exceeds ten per cent. of the capital stock of the bank, it shall not be made until approved by a majority of the directors of the bank, evidenced by their signatures in writing.
Section 210 requires any loan less than ten per cent. of the capital stock to be made with the permission of a majority of the board of directors, or of a committee of the board authorized to act. It is also possible tha,t a loan ex~eeding ten per cent. of the capital stock if made without such permission and without complying with the requirements of Section 2275 would be in violation of said Section 210. At any rate if such loan exceeds ten per cent. of the capital stock of the bank, then, Sec-
140

tion 2275 applies, and such loan could not be made until approved by a majority of the directors of the bank, evidenced by their signatures in writing. It will therefore be seen that said Section 210 applies generally to loans less than ten per cent. of the capital stock of the bank and provides how such loans are to be made. Section 2275 applies to loans for more than ten per cent. of the capital stock of the bank and provides a different method by which such loans are to be approved by the directors of the bank.
I hope the above will give you the information you desire. Yours very truly,
CLIFFORD wALKER,
Attorney-General.
In case the capital stock of any bank or stock company doing business under the laws of this State has been impaired over ten per cent. the law requires that this impairment must be made good within ninety days by assessment on its stock or by deduction of its capital if such deduction will not place its capital below the amount required by the banking laws and a bank could not deduct such impairment sum from its loss account and charge the same to the bank building account.
June 27, 1916. Hon. W. J. Speer, State Treasurer,
State Capitol, Atlanta. DEAR SIR: Section 2291 of the Civil Code of 1910 provides as follows:
"Whenever it shall appear that the capital stock of any bank or stock company doing business under this "law has been impaired over ten per cent., the State Bank Examiner shall notify such bank to make such impairment good within ninety days, etc."
You inquire if it is a compliance with the law in case of an impairment for the bank to deduct a sum of money from its loss account and charge same to its bank building account. The law does not permit by indirection that which is illegal directly. The requirements of the law is mandatory; the impairment must be made. good within ninety days by assessment on its stock or by a deduction of its capital if such deduction will not place its capital below the amount required by the banking laws. In
141

other words, the assets of the bank must be increased m good faith and not by the manipulation of figures on paper.
Yours very truly,
CLIFFORD wALKER,
Attorney-General.
The funds placed with the State Treasurer- by the State Board of Barber's Examiner-s from registration fees and from renewals are not State funds.
July 11, 1916. Hon. W. J. Speer, State Treasurer,
State Capitol, Atlanta. DEAR SIR: I have your request of even date for a construction of Section 7 of the Act of the Legislature approved August 17th, 1914 (Acts 1914, page 75) regulating the occupation of barbering in this State. Said Section 7 is as follows:
"Section 7. Be it further enacted that said board shall on the first day of January in each year report to the Governor a full statement of the receipts and disbursements of the board for the preceding year, and any moneys in the hands of the Treasurer of said board at the time of making such report in excess of five hundred dollars, shall be paid over to the State Treasurer, to be kept by him for the future maintenance of said board, and to be disbursed by him upon warrants issued by said board."
It will be noted that all the money referred to in the above quoted Section of the Act is money which comes to the State Board of Barber:s Examiners from registration fees and from renewals which are required to be made annually. No part of . this money comes from the Treasury of the State. A reading of the Bill will show that it was the intention of the Legislature that this Board should be self-sustaining and that no funds of the State should be used in the support or maintenance thereof. It will further appear that all funds belonging to this board are to be used exclusively for the support and maintenance of the board. There is no provision of this Law by which said fund can be used for any other purpose. I am of the opinion, therefore, that it was never the intention of the Legislature that any of this money should go into the Treasury of the State,
14ll

but that at the end of the year all funds in excess of five hundred dollars in the hands of the Treasurer of said Board, should be deposited with the State Treasurer not as State funds but merely for the purpose of having the same safely and properly kept by the State Treasurer. For this reason I am of the opinion that Article 3, Section 7, Paragraph 11 (Code, 6440) of the Constitution of this State, providing that no money shall be drawn from the Treasury except by appropriation made by law is not applicable. Said funds in my opinion are not State funds and when deposited with the State Treasurer are not placed in the Treasury of this State. The Act provide that such funds shall be kept by the State Treasurer for the future maintenance of said Board, and shall be disbursed by the Treasurer upon warrants issued by said Board. I am further of the opinion that under the law it is not necessary for an appropriation to be made for these funds to be drawn from the hands of the Treasurer, nor is it necessary that the Governor issue his warrant therefor. The Treasurer of the State is authorized to disburse these funds upon warrants drawn by the said Board for the future maintenance of the said Board. Said warrants in my judgment should be signed by the members of the said Board and set out that the funds are to be used for the maintenance of the said Board.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.
It is not the duty of the State Bank Examiner to call upon a bank to pay one of its certificates of deposit held by a- private party and in a case where the bank is not insolvent or to report such a failure to pay to the Governor.
August 24, 1916. Hon. W. J. Speer, State Treasurer,
State Capitol, Atlanta. DEAR SIR: I have your request of August 22nd for an op.in- ion on the following matter: It appears that on January 16th, 1916, the Farmers and Merchants Bank of Sale City, Georgia, issued a certain certificate of deposit payable to the order of
143

payee on one day's notice, the same being due and payable on April 15th, 1916. This certificate was endorsed by Chase & l\falone, and by Chase & l\Ialone endorsed to your order for collection. There is no restriction whatever upon this certificate as to its payment, and it appears to be a valid obligation of the Bank. The Bank now fails and refuses upon the demand of yourself, as the State Bank Examiner, to pay this certificate. You are not in a position to report to the Governor that the Bank is insolvent. You have given notice under Section 2347 of the Code that unless the said certificate is paid within thirty days you intend to take steps to have said Bank placed in the hands of a Receiver, and to have the charter thereof forfeited, under Sections 2306 and 2347 of the Code. You wish to know whether or not it is your duty as State Bank Examiner and whether or not you are authorized to report to the Governor the fact that this Bank has failed to pay the certificate and whether or not it is thereupon the duty of the Governor to instruct the Attorney-General to institute proceedings to forfeit the charter of the bank and appoint a Receiver to wind up its affairs.
The Bank Bureau of this State was created by the Act of 1907 and was "charged with the duty of seeing to the enforcement of the banking laws of this State." Under this law the State Bank Examiner is required to examine into the conditions of banks and to make examinations of banks, to call upon banks for sworn statements of their resources and liabilities, to take charge of banks which are insolvent, to report such insolvency to the Governor for the purpose of having the same placed in the hands of Receivers, to call upon banks to make good their capital stock when the saine has been impaired over ten per cent. and to otherwise enforce the banking laws. Section 2347 of the Code is taken from the Act of the Legislature of 1907. Section 12 of said Act is as follows :
"Every bank, trust company, except national banks, doing business in the State of Georgia which shall refuse or neglect to comply with any requirements lawfully made upon it by the State Bank Examiner pursuant to this Act, for a period of thirty days after demand in writing is made, shall be deemed liable to a forfeiture of its charter, and the State Bank Examiner may thereupon institute the necessary steps to revoke its authority to transact a banking business."

It will be noted that this Section of the Act of 1907, which is codified in Section 2347 of the Code, refers to a refusal on the part of a bank ''to comply with any requirements lawfully made upon it by the State Bank Examiner pursuant tn thi,~ Act." It is my opinion, therefore, that Sectio'n 2347 of the Code has reference to the institution by the Stat!i Bank Examiner of steps to revoke the authority of the bank to transact the banking business in cases where such bank fails or neglects to comply with any requirement which the Bank Examiner is authorized under the said law of 1907 to make upon it. After a careful examination of the Act of 1907 I have been unable to find any provision therein making it the duty of the State Bank Examiner to call upon a bank to pay one of its certificates of deposit held by a private party and in a case where the bank is not insolvent. For this reason it is my opinion such failure to pay after notice given by the State Bank Examiner under Section 2347 of the Code would not authorize the State Bank Examiner to institute proceedings under that Section to forfeit the charter of the bank or to place its affairs in the hands of a Receiver. The only provisions in the Act of 1907 for the appointment of a Receiver for a bank are found in Sections 2305 and 2306 of the Code which refer to insolvent banks, and Sec- , tion 2292 of the Code which provide for the appointment of a Receiver for a bank which shall in any manner obstruct or interfere w1th the Bank Examiner in the discharge of his duty, or refuse to be examined on oath touching the concerns of the bank. However, Section 2342 of the Code provides in. part as follows: "The Banks of this State shall pay specie for any of their bills, notes, drafts, or other obligations, when due and demanded by the holder."
Section 2343 provides a penalty for a violation of Section 2342 and Section 2344 provides that for a violation of Section 2342 the Governor is authorized to cause judicial proceedings to be instituted against such bank for the forfeiture of its charter.
Section 2349 of the Code provides: "Bank charters are subject to forfeiture for the same general grounds as those of other corporations and also for the violation of any obligation imposed by law, unless contrary to the contract of their charter."
It appears that the above provisions contained in Sections
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2342, 2343, 2344 are codified from the Acts of 1818 and 1832, but- these provisions are still of force.
Section 2350 of the Code provides ''When the Governor is informed that a Bank incurs the penalty of a forfeiture, he shall cause the Attorney-General to institute proceedings therefor in the county where the bank or parent bank is located.'' This Section further provides for the appointment of a Receiver to wind up the affairs of the bank.
In my opinion Section 2350 refers (1) to cases where the bank has failed to comply with any requirements lawfully made upon it by the State Bank Examiner pursuant to the Act of 1907, (2) to cases outside of the provisions of the Act of 1907, to wit, such as those set out in Sections 2342 and 2349 of the Code. In the latter cases the State Bank Examiner is not required to report such matters to the Governor for the purpose of having proceedings instituted to forfeit the charter.
In my judgment the State Bank Examiner is not required ~nder the law to report to the Governor the failure of a solvent bank to pay a certificate of deposit in order that the Governor may institute proceedings to forfeit the charter or wind up its affairs.
Yours very truly,
CLIFFORD wALKER,
Attorney-General.
146

OPINIONS TO AGRICULTURAL DEPARTMENT

,
The Act approved August 17th, 1914, appropriating $7,500 to the Agricultural Department for the Chemical Department, is an annual appropriation and available pro rata from that date.

July 7, 1915.

Hon. J. D. Price, Commissioner of Agriculture,

State Capitol, Atlanta.

DEAR SIR: Replying to your request for an opinion as to the

Act approved August 17, 1914, appropriating $7,500.00 to the

Agricultural Department for the Chemical Department, I beg

to advise that it is clear that the appropriation is an annual one

and available pro rata from August 17, 1914 to December 31,

1914, and a full $7,500.00 for the.year 1915.

Indeed, there are indications that the Legislature intended

the entire $7,500 to be available on August 17, 1914 for the

year 1914 also, but I do not so hold as I am advised that the

Chemical Department has managed to operate without insist-

ing upon such construction.

-

Yours very truly~

CLIFFORD WALKER,

Attorney-General.

All moneys arising from the Pure Food Section of the Department of Agriculture should be paid into the Treasury and disbursed through the Governor's warrants upon the Treasury based upon requisitions of the Commissioner of Agriculture. "
July 16, 1915. Hon. J. D. Price,
Commissioner of Agriculture, Capitol.
DEAR SIR: In response to your favor of even date in which you state that you have been following the precedent fixed by your predecessors in office in handling the funds collected
147

through the Pure Food Section of your Department, but that your attention has just been called to the provisions of the Act of 1913, page 29, and asking my construc~ion of said Act in view of the precedent stated, I respectfully submit the following:
The Act plainly directs that the Governor shall draw warrants upon the Treasury upon requisition of the Commissioner of Agriculture. While there are exceptions to the rule (mainly in connection with other funds collected through the Agricultural Department) it is the policy of the State that all funds collected shall be covered into the Treasury and thence be withdrawn only upon warrants drawn by the Governor and in view of this policy and of the plain wording of the Act it is my opinion that all monies arising from this fund contemplated by said Act should be paid into the Treasury and disbursed through the Governor's warrants upon the Treasury based upon requisitions of the Commissioner of Agriculture. Of course such disbusements are limited to the amounts in the Treasury arising from collections made under the terms of said Act.
Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
The funds arising under the Act approved August 19, 1913, should be paid into the Treasury and disbursed through the Governor's warrant upon the Treasury based upon requisitions of the Commissioner of Agriculture.
July 16, 1915. Hon. Jas. D. Price, Commissioner of Agriculture,
State Capitol, Atlanta. DEAR SIR: In response to your favor of even date asking for a construction of so much of the Act approved August 19, 1913, Acts of 1913, page 29, as refers to the collection and disbursement of funds thereunder, I beg to submit the following: The Act plainly directs that the Governor shall draw warrants upon the Treasury upon requisition of the Commissioner of Agriculture. While there are exceptions to the rule, it is the policy of the State that all funds collected shall be covered into
148

the Treasury and thence be withdrawn only upon warrants drawn

by the Governor. In view of this general policy and of the plain

wording of the Act of August 19, 1913, it is my opinion that all

monies arising from this fund under said Act should be paid

into the Treasury and disbursed through the Governor's war-

rants upon the Treasury based upon requisitions o the Com-

missioner of Agriculture.

Of course, such disbursements are limited to the amounts in

the Treasury arising from collections made under the terms of

said Act.

Yours very truly,

CLIFFORD WALKER,

Attorney-General.

The words "High-Grade" Fertilizer can be legally used only in two instances:
'i. In complete fertilizer containing two per cent. of potash, etc., or acid phosphate containing 1 per _cent. of potash, etc., or more.
2. In fertilizer of "a grade or analysis of equal total commercial value."
January 19, 1916.
Hon. J. D. Price, Commissioner of Agriculture, - State Capitol, Atlanta.
DEAR SIR: I have before me your request of recent date for an opinion as to the law regarding the use of the words "highgrade'' as applied to the branding and registration of fertilizers in this State.
In response thereto I beg to say that the law on the subject is contained in Section 4 of the Act of the Legislature to regulate the registration of fertilizers and reads as follows:
''Section 4. Be it further enacted, That the words ''highgrade" shall not appear upon any bag or other package of any complete fertilizer, which complete fertilizer contains, by its guaranteed analysis, less than ten per cent. available phosphoric acid, 1.65 per cent. nitrogen (equivalent to 2 per cent. amm{lnia) and two per cent. of potash, or a grade or analysis of equal total commercial value; that the word "standard" shall not appear upon any bag or other package of any complete fertilizer whirh contains, by its guaranteed analysis, less than
149

8 per cent. available phosphoric acid, 1.65 per cent. nitrogen, (equivalent to _2 per cent. ammonia) and two per cent. potash, or a grade or analysis of equal total commercial value; that the words "HIGH-GRADE" shall not appear upon any bag or other package of any acid phosphate with potash which shall contain, by its guaranteed analysis, less than 13 per oe'Jlt. available phosphoric acid and 1 per cent. potash, or a grade or analysis of equal total commercial value; that the word ''Standard'' shall not appear upon any bag or other package of any acid phosphate with potash, which shall contain, by its guaranteed analysis, less than 11 per cent. available phosphoric acid and 1 per cent. potash, or a grade or analysis of equal total commercial value; that the words "high-grade" shall not appear upon any bag or other package of any plain acid phosphate which shall contain, by its guaranteed analysis, less than 14 per cent. available phosphoric acid; and lastly, <that the word "standard" shall not appear upon any bag or other J.ackage of plain acid phosphate which shall contain by its guaranteed analysis less than 12 per cent. available phosphoric acid. It is hereby provided that no complete fertilizer, a!'id phosphate with potash, acid phosphate with nitrogen, or plain acid phosphate shall be offered for sale in this State which contains less than 12 per cent. of total plant food, namely: available phosphoric acid, nitrogen when calculated as ammonia, and potash, either singly or in combination; provided,- that in mixed fertilizers there shall not be claimed less than 1 per cent. potash and 0.82 per cent. nitrogen, when one or both are present in the same mixture.''
It will be noted that the law limits the use of the words "highgrade" in connection with fertilizer only to a fertilizer which is "complete" and contains phosphoric acid, nitrogen, and potash, "or a grade or analysis of equal total commercial value.
I understand that owing to the very unusual conditions brought about by the war. there is practically no potash on the market and you are called upon to make some concessions under the extraordinary conditions.
The words "High-Grade" Fertilizer can be legally used only in two instances :
1. In fertilizer containing potash (together with phosphoric acid and nitrogen in the proportions fixed by Section 4) ._
150

2. In fertilizer of ''a grade or analysis of equal total commercial value.''
Strict interpretation of this law may for the time being ap_pear hard on the manufacturers but this Department has no discretion in declaring the law as written. However, on reflection, I feel sure the manufacturers will realize that they would probably be subjected to numerous and costly lawsuits if not heavy losses if they should fail to comply strictly with the law as written, even if this Department of yours should wink at the violation of the law. After all, strict observance of the law may prove the safe course in this matter as it usually does in other matters.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.
Oil is subject to inspection and the payment of fees fixed by law, and the Department of Agriculture should look to the person first . having possession of the oil for the payment of such fees and not to a purchaser who might be found casually In possession of lt.
March 8, 1916. Hon. Jas. D. Price, Commissioner of Agriculture,
State Capitol, Atlanta. DEAR Sm: I have received your favor of even date referring to me the file, Re: National Rosin Oil & Size Co., Inspection of Car of Oil in Car U T L X No. 12815. Referring thereto I beg to say that in my opinion the oil is subject to inspection' and the payment of fees fixed by law in the hands of the Standard Oil Co., and the regular course to pursue in such cases is for the Department to look to the Standard Oil Company as the person first having the oil in its possession and not to the purchaser from the Company who might casually be found in possession of the oil. Any v:iew to the contrary was probably based on an opinion overlooking the Act of 1912, page 149. (See Park's Code of Georgia, Sections 1800, 1809 (a), 1809 (c), 1809 (h).)
Yours very truly,
CLIFFORD wALKER,
Attorney-General 151

If signal oil is used for illuminating or heating purposes it is subject to inspection.
June 21, 1916. Hon. J. T. Hixon, State Oil Inspector,
State Capitol, Atlanta. DEAR Sm: I am in receipt of your favor of recent date enclosing a communication from Mr. G. R. Wilby, in which you request my opinion as to whether or not what is known as signaloil is subject to inspection by your department. In reply I will say that if such oil is used for illuminating or heating purposes it is subject to such inspection. The purpose of such inspection is to ascertain by a proper test whether the oil. will flash at a lower temperature than 100 degrees. Your department is required to make this test and to brand the receptacles containing the s_ame either approved or rejected. Section 642 of the Penal Code provides as follows :
"If any person shall sell, or keep for sale or in storage, any crude or refined petroleum; naphtha, kerosene, earth rock, coal, machine, or illuminating oil, the products of petroleum, earth rock, or coal oil, without having the same inspected and approved by an authorized Inspector, he shall be guilty of a misdemeanor."
I hope the above will give you the information you desire. Yours very truly, CLIFFORD WALKER, Attorney-General.
Gasolines, benzines, and naphthas, when the same are kept on hand for consumption or use, are subject to inspection.
June 21, 1916. Hon. J. T. Hixon, General Oil Inspector,
State Capitol, Atlanta. DEAR Sm: I am in receipt of your request of recent date for an opinion on the following matter: It appears that the Seaboard Air Line R. R. Co. has on hand in this county for use and consumption "a quantity of gasoline, benzine, and naphtha, which it has purchased without the State. It is admitted that said articles are not kept on hand by this company for the purpose of sale but for its own use and consumption~ You wish to know
152

whether the said gasoline, ~enzine, and naphtha are subject to inspection under the laws providing for the inspection of oil.
In reply I will say that Section three of the Act of the Legislature, approved August 19th, 1912, provides as follows:
"Be it further enacted by the authority aforesaid, that for the purpose of this Act, gasolines, benzines, and naphthas shall be deemed to be subject to the same supervision and control as is now provided for illuminating oils."
The provisions of the law relating to the supervision and control of illuminating oils as referred to in the above quoted portion of the Act of 1912 relate to the manufacture and sale and offering for sale, or keeping on hand for sale, such illuminating oils. However, the Act of the Legislature, approved August 19th, 1913, provides as follows:
"The provisions of this Act shall apply not only to gasolines, benzines, and naphthas sold or offered for sale in the State of Georgia, but likewise to all such commodities that may be sold elsewhere and brought into the State of Georgia, .for consumption or use."
In my opinion, therefore, gasolines, benzines, and naphthas, when the same are kept on hand for consumption or use, are subject to the inspection provided in the Act of the Legislature of 1912, and to the other provisions of said Act, and it is your duty to have such articles properly inspected as provided in said Act. However, I will say that in my judgment, Section 642 of the Penal Code is not applicable to persons keeping said articles on hand or in storage for consumption or use, said Section, in my opinion, applies only to oils kept for sale.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.
Crude oil is subject to inspection under the laws of this State.
September 2, 1916. Hon. J. T. Hixon, State Oil Inspector,
State Capitol, Atlanta. DEAR Sm : I have your letter of recent date. requesting information on the following matter: A car of crude oil, same
153

being petroleum, has been received in this State and the purchaser desires to have the oil inspected. You wish to know whether or not crude oil is subject to inspection under the laws of this State.
In reply I will say that Section 642 of the Penal Code makes it a misdemeanor for any person to sell or keep for sale any crude or refined petroleum without having the same inspected and approved. Section 1809 of the Civil Code provides for the inspection of oil and the terms of this.Section are broad enough to include crude oil. I am of the opinion, therefore, that crude oil is subject to the inspection of other oils provided for under the laws of thi8 State.
Yours very truly,
w CLIFFORD .ALKER,
.Attorney-General.
154

OPINIONS TO STATE SUPERINTENDENT OF SCHOOLS.

Nominations for candidates for County Superintendent of Schools may ' be had at any time that may be fixed by the proper authorities of the political party making the nomination.

November 17, 1915.

Hon. M. L. Brittain, State Superintendent of Schools,

State Capitol, Atlanta.

DEAR Sm: I have your letter of the 15th inst., saying that

you have received from certain county school superintendents

I

and secretaries of Democratic Executive Committees inquiries as to whether a County Superintendent of Schools is to be nominated at the same time with the county officers, or whether they

i

arc to be nominated at the time members of the General Assem-

l
i

bly are nominated in the event these elections occur at different periods. In reply I will say that nominations of any political

party in this State are held under the rules of the party organi-

I
I

zation holding the same, except where such primary elections are regulated by law. The only regulations as to the time for holding elections to nominate candidates for office are found in Sec-

I

tion 129 of the Code. This Section provides as follows:

f

"Whenever any pclitical party in this State shall hold primary

elections for nominations of candidates for office, such party or its

autnorities shall cause all candidates for nominations for Gov-

ernor, State Hous~ Officers, Members of Congress, United States

Senators, Judges of the Superior Courts, Justices of the Supreme

Court and Court of Appeals, Solicitors-General and Members of

the General Assembly to be voted for on one and the same day

throughout the State at such date as may be fixed by the State

Executive Committee of such party."

You will notice from the Section above quoted that elections for Governor, State House officers, Members of Congress, United States Senators, Judges of the Superior Court, Justices of the Supreme Court and Court of Appeals, Solicitors-General and Members of the General Assembly must be voted for on one and

155

the same day throughout the State. As the County Superintendent of Schools is not mentioned among the officers whose nominations are made on the same day throughout the State, I am of the opinion that the nominations for this office may be had at the same time as the nominations for candidates for the offices mentioned or at any other time that may be fixed by the proper authorities of the political party making the nominations.
Yours very truly,
w CLIFFORD A.LKER,
Attorney-General.
An election is illegal, where persons voted at the courthouse, voting places being open in the precinct or militia district in which they resided, and no election being held at the time and under the law at the courthouse.
November 27, 1915. Hon. M. L. Brittain, State Supt. of Schools,
State Capitol, Atlanta. DEAR SIR: I have your favor of November 24, enclosing a letter from 1\fr. N. A. Brown, of Columbus, Ga., requesting an opinion on the following state of facts: It appears that the County of Muscogee recently held an election under the McMichael law for the purpose of adopting local taxation for the schools of the county. It appears that the City of Columbus is an incorporated city operating a public school system and that it was not included in the election, referred to. It further appears that a large part of the population of one of the militia districts of the county outside of the City of Columbus found it inconvenient to cast their ballot at the voting precinct of the militia district in which they reside and are registered. Since the law requires that the polls 1n a militia district outside of the incorporated town be open at eight o'clock A. 1\L, and close at three o'clock P. 1\f., and since it appeared that the persons above mentioned were unable to vote during the hours above specified, a voting precinct was opened at the county site in the City of Columbus and kept open from seven A. 1\f., until six P. 1\f., to accommodate the voters above mentioned in the election for a local tax. The question is whether or not it was legal
156

for the polls to be open in this election at the county site in the City of Columbus.
Section 3 of the Act of 1906 (Acts 1906, page 61) provides: ''Said election shall be held as ordinary county elections are held.'' This provision, as will be noted, refers to a~ election for the purpose of adopting local taxation 'for the schools of the county. By reference to Section 4 of the same Act it will be found that elections for the purpose of providing for local taxation for school districjs are to be held "Under the rules governing ordinary elections.'' The question to determine then, is whether or not the opening of the polling place at the county site, under the circumstances detailed above, would be legal under the laws regulating ordinary county elections.
Section 68 of the Code of 1910 provides that all persons shall be allowed to deposit their ballots at the voting precinct of the militia district or city ward in which they are registered, but not elsewhere except as hereinafter provided. The same Section provides further than in the event no voting precinct is established and open in an3" militia district, the county registrar must furnish to the election manager at the county site a list of registered voters of such militia district, and persons whose names appear on such lists shall be allowed to vote at the courthouse. It does not appear that no voting precinct was established and open in the militia districts outside of the City of Columbus which we have under consideration. It further appears that no election was being held at the time at the courthouse in Columbus. For these reasons I am of the opinion that there was no provision of law for opening the polls in this election at the courthouse, or at any other voting precinct in the City of Columbus, and that th~ same was illegal. I have not overlooked Section 69 of the Code, which provides that voters may, under certain conditions, cast their ballots at the county site instead of at the voting precinct of their respective districts or wards. This Section, in my opinion, as well as the latter part of Section 68 above mentioned, could not apply in any case where, at the time, and under the law, no election of any character was being held within the corporate limits of the city in which the courthouse is located. I do not think the authorities will have power to move the voting place of the district under consideration to the courthouse, in the City of
157

Columbus any more than they would to move it to some other district, or even to some other county.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.

The clause "Five years' experience in actual supervision of schools," as contained in Code Sec. 1565 (q), means the "overseeing" of schools; the managing and direction of schools in some school unit, either county or city system of schools.

December 1, 1915.

Hon. M. L. Brittain, State Superintendent of Schools, State Capitol, Atlanta.

DEAR Sm: I have before me request of Prof. E. M. Pofford,

of Waycross, through you, for an interpretation of the clause "Five years' experience in actual supervision of schools" as contained in Code 1565 (q).

Replying thereto, I beg to say t~at the author of the Act advises that the intention of this expression involving the defini-

tion of the word "supervision" is expressed in the literal mean-

ing of the word; that is to say, the "overseeing" of schools;

the managing and direction of schools in some school unit, either

county or city system of schools.



I have investigated the records of the State School Department and find that this Department has uniformly so construed

the law.

While custom and precedent are not binding in legal construction, they are weighty, and when sustained with probable

correctness, are controlling.. That the principalship of a single

school was not contemplated in this connection is borne out by the context, other expressions in the body of the statute referred

to. The word "teaching" implies the occupation of such a principal, or the more common expression "Teacher." It is clear that something more than acting as a "Teacher" as commonly understood was contemplated.

I conclude that the interpretations given the law here by the

school authorities of the State are correct and binding in law. I am appending a succinct statement of the qualifications re-

158

I

&

i

; I

qmred which I trust will simplify the difficulties in determin

ing just what the law does mean.

Trusting that this is the information you desire,

Yours very truly,

CLIFFORD wALKER,
Attorney-General.

Where a county maintains a county-wide local school system, and the County Board has no contract with the trustees or patrons of the local district schools for the repair of the school buildings of such local districts, but it has been the policy of the County Board to require the district trustees or patrons to repair and keep In order such district school buildings, neither the county, the county board, nor the members thereof, nor such district trustees, nor such patrons vyould be liable for damage for injury to a pupil of one of such schools who was Injured by reason of defects in the floor of one of such schools, such defects being unknown to the County Board.
Atlanta, Ga., January 6, 1916.
Hon. M. L. Brittain, State Superintendent of Schools, State Capitol, Atlanta.
DEAR Sm: I have your letter of recent date enclosing communication from Hon. John C. Harman, County School Superintendent for the County of Washington. The following facts appear from the letter of Mr. Harman: Washington County maintains a local school system on the county-wide plan. The County Board has no contract with the trustees or patrons of the local district schools for the erection or repair of the school buildings of such local districts, but it has been the policy of the County Board to require the district trustees or patrons to repair and keep in order the district school buildings. The . County Board takes cognizance of such matter only when they have been brought to the attention of the Board. The schoolhouse in one of these districts got out of repair and the local trustees or patrons undertook to repair it. In doing this they failed to make the proper repairs on a portion of the floor, and one of the pupils in the school fell through the floor and sustained certain injuries. The defects in the floor were not known to the County Board. The question is: Is there any liability
159

on the part of any one for these injuries, and if so who is liable?

In reply to this inquiry, I will say that certainly the county

would not be liable. See Section 384 of the Code of 1910, and the citation of authorities under this Section in Park's new

annotated code. In addition t.o this a county is considered as

a mere school district under the law of 1911 revising the school

system of the State. Thus the county, as a county, has nothing

to do with the administration of the school laws, but i.s merely

a part of the State system.



I do not think the County Board would be liable either as a

Board or the members thereof liable individually. Under Section

1484 of the Code no duty is imposed upon them to make repairs,

but they merely have the authority to do so. Further, they arc

administrative officers and not liable for their acts unless done

maliciously. Certainly they could not be held individually liable

unless they had notice of the defects causing the said injury.

I think the same rule would apply in the case of the local trustees.

There was no legal duty resting upon them to make the repairs.

Even if such duty had been imposed on them, the performance

of the same would have been an administrative duty, and the

failure to perform the same would not render them individually

liable unless their failure was malicious. As to the patrons who voluntarily undertook to make repairs, their acts probably

would not render them liable unless the same were malicious. Yours very truly, CLIFFORD vVALKER,

Attorney-General.

The Treasurer of the South Georgia Normal and Industrial College at Valdosta may legally collect a salary as Treasurer of the institution, provided the trustees have considered this officer necessary and have manifested the same by proper action.
March 1, 1916. Hon. J. W. Stephens, State School Auditor,
State Capitol, Atlanta. DEAR SIR: I am due you an apology for delay in replying to your favor of sometime ago, wherein you ask if the Treasurer of the South Georgia Normal and Industrial College at Valdosta may legally collect a salary as Treasurer .of the institution.
160

You will recall that at the time your letter was received I was

engaged in an extensive litigation over the State railroad, which

engrossed every part of my time for six weeks.

-The law on the question raised by you is found in the Acts of

1906, page 75.

Third section of this Act provides, "That immediate charge of

said college shall be in a board of trustees.'' Section 5 provides

that the officers of the said college shall be ''a president and such

other officers-

as may be necessary, in the opinion of

the Board of Trustees to carry on the College, in accordance with

the intention of this Act.'' In Section 6 it is provided that the

"said Board shall be charged always with the immediate control,

supervision and management of said college.''

I fail to find any inhibition against the payment of a salary

to the officer performing the duties of Treasurer. Assuming that

the trustees have considered this officer necessary and have manifested the same by prope~ action, it is my opinion, therefore,

that the Treasurer may legally draw the salary for such services.

In other words, the matter is left to the discretion of the trustees,

by the letter and spirit of the Act creating the college.

Yours very truly,

CLIFFORD wALKER.
Attorney-General.

A County Superintendent of Schools would not be personally liable for public funds in his hand as such officer should the bank fail in which he had deposited such funds provided such funds were deposited in a bank in thi's State and provided that he exercised reasonable care and prudence in selecting the bank in which to deposit this money. He would be if such funds were deposited in a bank outside of this State.
March 31, 1916. Hon. 111. L. Brittain, State Superintendent of Schools,
State Capitol, Atlanta. DEAR Sm: - I am in receipt of your letter of recent date enclosing a letter from lion. H. l\L Kaigler, Superintendent of Schools for the County of Quitman. From your letter and that of Mr. Kaigler it appears that Mr.-Kaigler deposited the proportionate part of the common school fund allotted to Quitman
161

County in the Farmers & Merchants Bank of Georgetown. Some few weeks ago this bank failed and upon instructions from the Governor was placed in the hands of a receiver. The bank is totally insolvent and will be able to pay very little, if anything, to the depositors. At the time of the failure 1\Ir. Kaigler had on hand on deposit in this bank the sum of $354.17, which was standing to his credit as County School Superintendent. This bank was the only bank in Quitman County. So far as appears in your letter at the time this deposit was made, the Farmers & Merchants Bank of Georgetown was in good financial standing in Quitman County. The question is, whether or not 1\Ir. Kaigler is personally liable to the State for the amount of this deposit, provided it appears that he exercised reasonable care and prudence in selecting a bank in which to deposit this money.
In reply to the above question, I will say that as a general rule, according to the great majority of the. decisions of the courts, an officer who receives public money is regarded not as a mere bailee, but as one who by the terms of his undertaking has incurred a fixed and absolute liability to keep the money safely at all hazards. The leading case upon this subject is that of United States vs. Prescott, 3 Howard (U.S.), 578. The doctrine that an officer entrusted with public funds is not a mere bailee for hire was announced by the Supreme Court of Georgia in the case of Lamb vs. Dart, 108 Ga., pages 602-6. In this latter case the Supreme Court of this State held that a county treasurer who had deposited the county funds in a bank which subsequently failed was liable on his bond for the amount of such fund lost by the failure of the bank. In this case the court said:
"It is true the rule of law which is announced in this case may in some instances operate harshly, but a county treasurer when he accepts his office takes it with all its responsibilities and its perils."
The court further says :
"Indeed the trend of adjudications upon the subject leads to the conclusion that a loss by an official of public money entrusted to his care can not be excused unless it be the result of the Act of God or of the Public Enemy. Repeatedly has it been ruled that the taking of such funds by a thief, or its seizure by robber, or its consumption by fire, much less the failure of a bank un-
162

accompanied at that with any negligence on the part of the official, will not constitute a valid defense for a failure to account for the money."
The case last referred to above involved the liability of a
a county treasurer for the loss of county funds which he had de-
posited in bank which subsequently failed. It will be noted that in the case of a county treasurer the law gives no direction to him as to how he shall hold the funds. The matter of safely keeping the funds is left to him and he is responsible therefore unless the funds are lost by the act of God or the public enemy. In the case of Lamb vs. Dart, cited above, the court says:
"there is no authority whatever for his making any other person or corporation the custodian of the funds."
In another place the court says that the Treasurer is liable for the funds;
"when it is lost, and especially when the loss results from the failure of another with whom he had deposited the funds without authority of law."
As to the County Superintendent of Schools, however, it has been provided in Section 10 of the Act of the Legislature, approved August 21, 1911 (Acts 1911, page 100) ; as follows:
"All such funds (referring to the common-school funds) held by officials must be kept in banks, separate from their individual bank accounts."
It will be seen from the above quoted section that the County School Superintendent is not only authorized, but that it is his duty to deposit the common school fund in banks.
In Mechem on Public Offices and Officers, on page 610, it is said:
"in a few instances it is further provided that they shall be deposited in a certain manner or shall be kept in certain safes or other receptacles provided by the public; in which cases the officer who complies with the requirements is relieved from liability."
In the 29th volume of CyClopedia of Law and Procedure, it is said:
"but if the law has designated banks as depositories, for public monies, the deposit by an officer of public monies in such a depository relieves him from all liability." (See page 1439 of the work above cited.)
163

In the case of Hobbs vs. U. S., 17 Ct. Cl., page 189, the Court

of Claims of the United States held that where an officer of the

United States deposited funds belonging to the United States

in one of the banks designated as United States depositaries

and the bank failed, the officer was not liable, for the reason

that he was authorized by law to deposit these funds in the bank

and that when he so deposited them he had complied with the

law.

-

A case which is directly in point on the question under con-

sideration is that of the City of Livingston vs. Woods, 20 1\Ion-

tana, 91. This case holds that where the law, which in this case

was a city ordinance, directs that the Treasurer of a Municipality

deposit the public funds in a bank and he did so deposit them he

would not be liable for the funds in the case of a failure of the

bank, provided he had used reasonable prudence and caution in

selecting the bank, and was without fault or negligence in keeping his deposit.

Summing up the matter I find that there are two lines of

authorities in this country on the subject of the liability of a public officer intrusted with public funds. The first holds that

such officer is not a mere bailee, but is in fact an insurer of the funds and is to be held liable for the loss of the same, except

where the loss is occasioned by an act of God or of the public enemy. The second line of authorities holds that the public officer is relieved from liability if he can show that he has exer-

cised reasonable care and caution in keeping the same. The first of these lines of authorities mentioned above is set forth in

the Prescott case. The latter is upheld in an able opinion by

the Supreme Court of Tennessee, 96 Tennessee, page 296. The Supreme Court of Georgia has aligned itself with the former line

of authority as announced by the decision in the case of Lamb

vs. Dart, cited above.

_

However, even the former line of authorities holds that where

the law directs that public money shall be deposited in a bank

the officer who complies with this law is relieved from liability.

See City of Livingston vs. Woods, cited above.

I have not been able to find where this identical question has been passed upon by the Supreme Court of Georgia, but judging

from the expressions used by the Court in the case of Lamb vs.

Dart, quoted above, I am inclined to think our court would be

164

likely to agree with the doctrine announced by the Supreme Court of Montana. I do not think that an officer can be held liable for the loss of public funds where the la_w directs the manner in which these funds shall be kept and the officer complies with this law, and is without fault himself.
I 'have not overlooked the provisions of Section 1514 of the Code of 1910, which provides that; .
"he shall be holden for all amounts' so received on his official bond as Treasurer."
This section has reference to the County School Superintendent. I think this section is to be construed in connection with the section above quoted and that it means that the Superintendent as Treasurer is to be holden for all amounts received by him provided they are lost on account of his failure to comply with the law and deposit the same in a bank using reasonable prudence and caution in selecting a bank of good financial standing.
The second question yoU: ask in your letter is whether or not the County School Superintendent of Quitman County will be protected if he deposits the common school funds in a bank in Eufaula, Alabama, for the reason that there is now no bank in the County of Quitman. In reply to this question I will say that since the State of Georgia has no authority over the banks in the State of Alabama, and for the further reason that in the event of loss of the funds for the failure of the same the State would have no priority in payment from the assets of the bank, as it would have if its funds were deposited in a bank of this State, the County School Superintendent would deposit these funds in a foreign bank at his own risk, and if they were lost by the fail-
ure of such bank pe would be personally liable for the same.
I hope the above will answer the questions asked in your letter. Yours very truly, -
CLIFFORD WALKER,
Attorney-General.
165

1. It is a violation of the policy of our government to use any of the

public school funds in a school where the building used in the

school is owned by some church, and the teachers in the school

ail belong to that same faith and order, and the officers of that

church are perm_itted to hold, in such school building, religious

services, exclusively sectarian, immediately. preceding the as-

sembling of such school.

2. The State Superintendent of Schools can not anticipate that a

County Board of Education will violate the law by misdirecting

the expenditure of such funds and withhold from such county

ail or any part of the State funds legally appropriated to that

county for public school purposes~



3. If it be made to appear to the satisfaction of the State Superin

tendent of Schools that such conditions exist in any county;

that such conditions have continued to exist through many

years; that reasoning from such continued precedent or from

other evidence or circumstances satisfactory to such State

Superintendent of Schools it appears probable that a part of

such funds will be so misdirected, then it will be his right and

duty to bring to the attention of the CountyBoard of Education

the law above referred to and to give direction that the funds

be thereafter applied in strict accordance with the Jaw.

October 4, 1916.
Hon. M. L. Brittain, State Superintendent of Schools, State Capitol, Atlanta.
DEAR SIR: I have before me your favor of recent date in which you say:
"Some months ago a rumor reached me to the effect that the Chatham County Board of Education was aiding two Catholic Schools. These Savannah schools being established before the Constitutional Convention of 1877 form an independent local system and in consequence, neither I nor my supervisor has been authorized to inspect them. I wrote the President of the Board there at once, however, and asked if the charges were true. He gave it as his opinion that the facts referred to did not constitute a violation of the law, and, since he is a distinguished lawyer, I felt sure that this must be correct. Nevertheless, I wrote the Superintendent asking him to see that no sectarian schools there were illegally aided.
"The charges still being made in a weekly publication, I asked personally and by letter, members of the General Assembly to appoint a committee to look into the matter, since I wanted to know it if I had any illegal connection with the situation. It was refused on the idea_ that it was without sufficient foundation.
"It is probable that the question raised could not affect the
166

Catholics, who are found in only a few urban counties, so much as others. In the past year various churches, chiefly Baptist and Methodist, have built schools in cities and towns and especially in sparsely settled rural sections; frequently the same houses have been used for schools and churches, or religious services under the plea of necessity. If there is any law authorizfng .me to discontinue sending funds to Savannah, the same rule would force me to withhold them wherever the same church connection is found-probably from a majority of the counties of the Stateand I wish to be sure that the law means for me to take such step before causing such a loss in property and closing so many schools for months if not for years.
"These difficulties were not caused by any act of mine, but, though gradually diminished, have been in Georgia for forty years. I resolved, however, on the first occasion that a citizen should present the Savannah case in proper form, to ask that the question be settled legally, ei.ther by the courts or judicial opinion. This has now been done for the first time. In the letters accompanying, you will find statements from both sides and I respectfully request that you advise me as to whether the Savannah School Authorities are violating the law and whether or not I am authorized for this reason to di~continue sending State funds to that system."
Article 6, Paragraph 3, of the Constitution of the United States provides, among other things, that:
"No religious test shall ever be required a& ' qualification to any office or public trust under the United States."
Article 1, of the Amendments to the Constitution reads as follows:
"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press or the right of the people peacefully to assemble and to petition the government for a redress of grievances."
Article 1, Section 1, .Paragraph 12, of the Constitution of the State of Georgia, reads as follows :
"All men have the natural and inalienable right to worship God each accordingly to the dictates of his own conscience, and no human authority should in any case control or interfere with such 'right of conscience."
Paragraph 13 of said section reads as follows:
"No inhabitant of this State shall be molested in person or
167

property, or prohibited from holding any public office or trust, on account of his religious opinions; but the right of liberty of conscience shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the State."
Paragraph 14 of said section reads as follows:
"No money shall be taken from the public treasurv, directly or indirectly, in aid of any Church, Sect, or Denomination of Religionists, or any Sectarian Institution."
America was settled by brave men seeking a land where they could worship God according to the dictates of their own con~ sciences. For religious liberty they turned their backs upon their native lands and sailed for the more rugged but freer clime of Columbia. Freedom of thought and liberty of conscience were even dearer to them than the tenderest memories of fireside and hearthstone. Renouncing the sacred sentiments and traditions of home and country they boldly moved out to estab lish a government untrammeled by bigotry and intolerance.
It would be most remarkable if these fundamental principles were not of the very warp and woof. of the American Law. If I properly interpret the genius of our government, freedom of religious conscience is guarded as jealously as personal liberty itself. This very genius and this very jealousy have well earned for our country the merited title, ''The land of the free and the home of the brave."
Every patriotic citizen will guard with care these bedrock principles of our government and resist any encroachment upon the security of freedom.
Considerations, such as those herein referred to, no doubt, led the people of this State in convention assembled to place in the fundamental law the unmistakable mandate, "no money shall be taken from the public treasury, directly or indirectly, in aid of any Church, Sect, or Denomination of Religionists, or of any Sectarian Institution.''
So sound is this principle that high-thinking people are united in their allegiance to the doctrine of absolute separation of church and State. A denominational enterprise which receives favors from the State must inevitably accept conditions and instructions from the State. In consideration of receiving appropriations
168

from a secular government a church must receive and obey
orders from that government.
If a government in one city favorable to a certain church may grant special concessions to that church, then the government of another city unfavorable to that church may place a ban upon it and its communicants.
The next logical step is that a city government favorable to one church might provide that only teachers who were communicants of that church should be employed in its city schools. This might be followed by a requirement on the part of another government unfavorable to such church that no communicants of that church should teach in its public schools.
Such contingencies may be remote ; but they are unquestionably possible. They are repugnant to all ideas of republican government. The only safe course is found in maintaining an absolute and complete separation of church and State.
Applying the foregoing principles to the case at hand it seems to me that there can be but one conclusion.
1. A church in the City of Savannah owns two buildings adapted to school purposes. It agrees to permit the city government to use those buildings for the regular conduct of its public schools. In consideration of this agreement the city government on its part grants to that church certain valuable concessions. All the teachers of that particular faith and order are assigned to these special schools, and only such teachers are employed therein. The officers of that special church are permitted to hold in these school buildings religious services, exclusively sectarian, immediately preceding the assembling of the schools, as city schools-services held exclusively for influencing the students of that faith and of other faiths who come to the public schools upon the invitation of the city and at the expense of the taxpayers of all faiths and orders. Such religious services are held in no other school in the city.
Even if such an arrangement were entered into in the utmost good faith and with the highe~t patriotic motives, it must appear to any impartial mind that it is in violation of the policy of our government.
2. Having arrived at this conclusion the question arises as to the proper course of the State Superintendent of Schools in disbursing the State funds due the City of Savannah.
169

Under the law the County Superintendents of Schools certify to the State Superintendent of Schools the number of pupils in the several counties between the ages of six and eighteen years. Whereupon it becomes the duty of the State Superintendent of Schools to calculate the pro rata share each county is entitled to receive from the amount of the school fund appropriated by the State for the support of the public schools .for the following year and disburse the same accordingly to the County Boards through the County Superintendent of Schools. The law presumes that all public officers will do their duty according to law. It follows that the State Superintendent of Schools can not legally anticipate that the County Board of Education will violate the law by misdirecting the expenditure of the funds even before the funds are received by the County Board, or even before it has appropriated the funds to the various schools of the county. Consequently the State Superintendent of Schools can not legally withhold from any such County Board all or any part of the State funds so legally appropriated to that county.
3. However, it is my opinion that if it be made to appear to the satisfaction of the State Superintendent of Schools that such conditions exist in any county; that such conditions have continued to exist through many years; that reasoning from such continued- precedent or from other evidence or circumstances satisfactory to the State Superintendent of Schools it appears probable that a part of such funds will be so misdirected, then it will be his right and duty to bring to the attention of the County Board of Education the law herein referred to and to give direction that the funds be thereafter applied in strict accordance with the law. If the County Boards of Education should fail to act in accordance with such suggestions then ample authority will be found for the enforcement of the law.
In reaching the foregoing conclusions I have not questioned, and I do not now question, the sincerity of the motives of the County Board of Education. I understand that conditions were brought about by efforts to economize, and by a sense of financial inability to provide separate school buildings many years ago when the arrangement was first entered into. I appreciate and acknowledge the embarrassment incident to sharp differences in religious views and more or less prejudice on both sides. I am advised that much time and thought have been expended
170

upon these delicate questions to the end that these embarrassments might be brought to a minimum. Indeed, I have no right to question the sincerity of the belief of these public officers that the present method of dealing with the situation peculiar to Savannah is the best and most satisfactory way to handle it. They insist that the number of teachers who are communicants of the church referred to is smaller under the present system than it would be with separate schools; that children of noncommunicants are taught in the two schools and are as welcome as children of communicants, though the latter are iargely predominant in numbers; that no distinction as to religious views is allowed in the selection and qualification of teachers, though, only teachers who are communicants of the church referred to are assigned to the two schools mentioned and such teachers are not assigned to other schools; that all religious services are held before the regular hour for the assembly of the city schools-that after such hour the schools are operated exactly as all other public schools. In order that perfect fairness be done the County Board of Education, I am attaching to this opinion as an exhibit, the statement of facts furnished by the distinguished President of the Board.
Nor have I overlooked the suggestion that churches of other faiths and denominations (including my own) have offended against this law. While I have heard of no church holding such sectarian religious services in school buildings, I have been informed that contracts have been made with sectarian schools by towns and cities for teaching the children in such schools. While such instances have not met with the feeling and objections incident to the Savannah situation, they were clearly violative of the same principles, and as such, the leaders of the denominations have continued to declare them unwise, unscriptural and unpatriotic. As a result, such instances have become less numerous and should be eliminated entirely.
As anqther has said in language less polished, but possibly more expressive: "If the churches will keep their hands off the government, the government will keep its hands off the churches.'' I was never more clear or conscientious in the opinion that in our country even a slight connection of a church with the government will engender bitterness and prejudice as well as real resentment and finally prove of great harm to that
171

church; that the absolute and perfect separation of church and State will eventually be completely justified and prove beneficial alike to Church, State and people.
Yours very truly,
CLIFFORD wALKER,
Attorney-General.
The State School Superintendent is not authorized to send State pub. lie school funds direct to a school district established under an unconstitutional Act of the General Assembly.
November 11, 1916.
Hon. M. L. Brittain, State Superintendent of Schools, State Capitol, Atlanta.
DEAR SIR: Your request that I advise you whether the increase in the Pearson School District (Acts of 1916, p. 852) is legal and gives you authority to send funds to that town, on the basis of, the new territory taken from the county as well as that within regular municipal limits, received.
A request from your department was received at this office in January, 1913, for an opinion relative to a similar case. In th8 opinion of the. Attorney-General, at that time, relative to that Act, the law was unconstitutional and inoperative, citing several decisions of our Supreme Court to sustain his opinion. See Jones' Opinions of Attorneys-General, January 1, 1904, to January 1, 19'14, p. 490. Since that time our Supreme Court has handed down a decision in the case of James v. City of Blakely, 143 Ga. 117, where an Act of almost exactly similar nature to the one under consideration was held unconstitutional. For the above cited reasons, therefore, I would say that this Act, so far as it relates to the Pearson School District, is unconstitutional and void, and should be treated by you as a nullity.
Yours very truly,
CLIFFORD WALKER,
Attorney-General. 1
172

None of the State public school funds can be used for teaching adults, Funds raised by local taxation may be so used. '
December 13, 1916. Mr. M. L. Brittain, State Superintendent of Schools,
State Capitol, Atlanta. DEAR SIR: I am in receipt of the inquiry of the Superintendent of Schools of Savannah, Ga., transmitted to me by you, as to whether it was legal to use public school funds for teaching adults English and Elementary Civics in evening classes.
Section 1520 of our Code provides for the enumeration of the &chool children of the State; and Section 1521 provides how that enumeration is to be taken; and contains, among other provisions, a clause to the effect that the persons employed to make the enumeration ''shall go from house to house, making a thorough canvass of the territory assigned to them, taking the number of children between the ages of six and eighteen years," etc.
Section 1509 provides that ''admission to common schools shall be gratuitous to all children between the ages of six and eighteen years," etc.
Section 1468 provides that "it shall be the duty of the State School Commissioner to disburse the common school fund in the following manner: he shall, annually, proportion equitably. the State school revenue to the different counties of the State upon the basis of the aggregate of children between six and eighteen -years of age in each county,'' etc.
This would seem to indicate the intention and. desire upon the part of our law-making power that none of the State public school funds should be used for the education of any but children of the State between the ages of six and eighteen years, and that none of such funds could be used for teaching adults.
There seems to be no limit placed upon the use of funds raised by local taxation for educational purposes, however, as to the ages of those being so educated, and it would seem, therefore, that such funds could be used for educational purposes for adult&.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.
178

OPINIONS TO THE COMMISSIONER OF COMMERCE AND LABOR

1. In _making up lost time factory employees are not limited to a period of ten days.
2. A civil suit would have to be brought to exact a penalty for violation of the law prohibiting employees working longer than ten hours per day.
3. Such suit could be brought by any person. 4. Attorneys representing such plaintiff would be entitled to, and
could enforce the payment of,- reasonable compensation for services. 5. The State has provided no other method for the enforcement of this law. 6. The law does not require the Commissioner of Commerce and Labor to bring such suit. 7. The Commissioner of Commerce and Labor is not authorized to use any part of his contingent fund for the payment of attorney's fees and court costs in such cases.

.

May 2, 1916.

Hon. H. M. Stanley, Commissioner of Commerce and Labor,

State Capitol, Atlanta.

DEAR Srn: I have your letter of recent date, asking for an

opinion construing Section 3137, of the Code of this State, re-

lating to hours of labor in factories. You wish to know whether,

assuming that there has been a loss of time of ten days at a given

factory, the employees may be permitted to work longer than

ten hours per day or sixty hours per week, until they make up

the ten days' lost time, or whether they can only work for a

longer period of time each day for ten days in making up the

time lost. In reply, I will say that my construction of the afore-

said Section is that lost time, not exceeding ten days, amounting

in the aggregate to one hundred hours, may be made up by such

employees who have lost the time, and that such employees are

not limited to a period of ten days in making up such lost time.

In other words, the expression used in the statute "not to exceed

ten days" refers to the amount of time that may be made up

by such employees, and not to the period or length of time dur-

174

ing which they may work more than ten hours per day in making up said lost time.
Your next question is whether or not in order to exact a penalty for violation of the law prohibiting employees working longer than ten hours per day or sixty hours per week, no time having been lost, it is necessary under the existing law to bring a civil suit against the company violating the provisions of such law. In reply, I will say that under Section 3140 of the Code a suit may be brought against such company to subject it to a forfeiture of a penalty. Such a suit would be a civil suit. The law does not provide any other method of procedure.
The next question is whether or not it is the duty of any Prosecuting Attorney provided by the State to bring such suit. In reply to this question I will say that under Section 3140 of the Code, ''Any person with whom said contract is made, or any person having knowledge thereof, shall be competent to insti- tute such suit." It is further provided by this Section that "the amount recovered as a forfeiture shall inure to the benefit of the Board of Education of the county in which said violation may have occurred." Under the provisions of this Section such a suit would not be one instituted in the name of the State or for and on behalf of the State, but would be one instituted by an individual in his own name suing for the benefit of the Board of Education of the County. There is no law which makes it the duty of any of the State's Attorneys to prosecute such a suit.
, Your next question is whether or not, in the event a suit is instituted and a judgment is obtained against any company for the violation of said laws, there is any provision for the payment of Attorney's fees out of said judgment. In reply to this question I will say that under Section 3364 of the Code Attorneys at Law have a lien for their fees superior to all liens but tax liens upon suits, judgments and decrees for money, and no person is permitted to satisfy said suit, judgment, or decree until the lien or claim of the Attorney for his fees is fully satisfied. Under the provisions of this Section of the Code, I am of the opinion that the Attorney representing the plaintiff in such a suit would have a lien for his fees upon the amount of the judgment he recovered. Such Attorney would have the right to enforce such lien for a reasonable amount to compensate him for the services rendered, in securing the recovery. In my opinion,
175

the Board of Education of the County would have the authority to settle with such Attorney for his services. I am inclined to think that the Judge of the court in which the case was tried and the judgment obtained would have the authority to order and direct that Attorney be paid a reasonable fee for the services rendered, in connecti9n with. the case.

Your next question is whether or not the State has provided any other method than tha_t indicated above by which the services of an Attorney can be secured to prosecute such suit. In reply, I will say that I know of no law authorizing the employment of such Attorneys other than that above referred to.

Your next question is whether or not it is your duty as Commissioner of Commerce and Labor to bring such suit. In reply, I will say that there is no such law imposing such a duty upon you, in your official capacity. The law, as it now stands, does not impose such a duty upon any one, but merely authorizes any person with whom said contract is made or any person having knowledge of the violation of this law to bring the suit to exact the penalty. In other words, any person' is authorized to bring such a suit, but under the law, no individual nor officr.r of the State is required to bring the suit.

Your last question is whether or not you have the right, as

Commissioner of Commerce and Labor, to use any part of the

contingent fund of your department for the payment of Attor-

ney's fees and court cost in such cases. In reply, I will say

..

that since the law does not impose upon you the duty to bring

these suits I do not think you would be authorized to use any

part of this fund for the purposes indicated. Another reason

for this view of the matter is that under the General Appropria-

tion Act approved November 30, 1915, the sum of $1,800, or so

much thereof as may be necessary is appropriated to your de-

partment "to be expended as provided in the Act approved

August 18, 1913. '' The Act of 1913 provides that said sum

of $1,800 per annum shall be allowed ''for the incidental ex-

penses of sai department, in_cluding the actual traveling ex-

penses of said Commissioner, etc." I do not think this provision

of the law was intended to be used by you in the payment of

court costs and Attorney's fees in the prosecution of the suits

under consideration. It is to be used as incidental expenses "of

176

the department." tion you desire.,

I hope the above will give you the informa-
Yours very truly, CLIFFORD "\VALKER, Attorney-General. .

The Department of Commerce and Labor is authorized to procure and display to the people of the State illustrated pictures showing the progress and development industrially of the State of Georgia from its earliest days to the present time.
June 29, 1916. Hon. H. 11!. Stanley, Commissioner of Commerce and Labor,
State Capitor, Atlanta. DEAR SIR: I have before me your favor of even date in which you ask an opinion as to the legality of the Department of Commerce and Labor procuring and displaying to the people of the State illustrated pictures showing the progress and development industrially of the State of Georgia from its earliest days to the present time. In response, I beg to say that among other things, the Act approved August 21, 1911, establishing the Department of Commerce and Labor, provides that the Commissioner shall collect and collate information and statistics concerning labor and labor conditions throughout the State; and concerning the educational, moral and financial conditions of laborers, and the best means of promoting their mental, moral, and material welfare, and concerning the location, estimated and actual horse-power and condition of valuable water-powers, developed and undeveloped, in this State, and such other information and statistics concerning the industrial welfare of the citizens of this State as the Commissioner may deem to be of interest and benefit to the public and by the dissemination of such data to advertise the various industrial and natural resources of Georgia. From the reading of this Act, and particularly Section 2 thereof, it is perfectly clear that the enterprise proposed by you is not only legal, but comes squarely within the contemplation of the Act. I have no doubt that the same will be of incalculable benefit to the industries and people of the State.
Yours very truly, CLIFFORD WALKER, Attorney-General.
177

OPINIONS TO PRISON COMMISSION

The State Farm Buildings are included in the public buildings men-

tioned in Section 147 of the Code of Georgia which the Gov-

ernor is required to keep insured at one-half of their value.

[~-~j~:.i,1;,.1,.II [t
Hon. R. E. Davison, Chairman,

November 101 1915.

State Capitol, Atlanta.

DEAR SIR: I have before me your favor of even date in which

you inquire if the insurance on the State Farm Buildings is cov-



ered by the provisions of Section 147 of the Code of Georgia.
In reply thereto .I beg to advise that the Section referred to

reads as follows:

"The Governor shall keep insured, at one-half their value,. all of the public buildings of the State and library, except the State arsenals at l\filledgeville and Savannah, the penitentiary at Milledgeville, and the buildings of the Western & Atlantic R. R."

It is clear that the buildings of the State Farm are included in the term "public buildings of the State" in contemplation of the above Statute. It is true that "the penitentiary at Milledgeville" is excepted and that the State Farm is sometimes loosely referred to as the State Penitentiary. However, there can be no doubt that the old Penitentiary building, now abandoned as a penitentiary and converted into a State School was the building referred to. This is conclusively shown by the fact that the Act codified in the Section quoted was passed in 1882 (Acts of 1882-3, page 26) long before the erection of the present State Farm buildings.
I conclude, therefore, that the said buildings are included in the buildings ordered insured and are not excepted under the terms of said Section.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.

178

I
I
1
I

A Judge has no power to suspend a sentence after it has been made the judgment of the court and entered upon the minutes.
November 11, 1915. Hon. R. E. Davison, Chairman, Prison Commission,
State Capitol, Atlanta. DEAR Sm : I have before me your request for an opinion on the question submitted in your letter of recent date, to wit:
"! am enclosing you court papers in the case of .Alice Howell, convicted in Lumpkin County five years ago. It seems that this woman was convicted in the Spring of 1910 and sentence suspended until now. We want to ask you to give us your written opinion as to whether this sentence still stands good against this woman."
In response thereto I beg to advise that our Courts have held
that a Judge has no power to suspend a sentence after it has
been made the judgment of the court and entered upon the minutes. The fact that considerable time has elapsed, even under an alleged suspension, in no wise affects the validity of the sentence and under the law it should be now enforced.
Yours very truly,
CLIFFORD WALKER,
Attorney-General. File returned herewith.
The Governor has power and authority to grant conditional pardons.
December 15, 1915. Hon. Prison Commission, R. E. Davison, Chairman,
State Capitol, Atlanta. GENTLEMEN: In reply to your _request for an opinion on the question as to whether or not the Governor of this State has the authority under the law to grant a conditional pardon, I beg to say: Under Article Five, Section 1, Paragraph 12, of the Constitution of this State, the Governor is investe9- with broad powers on the subject of reprieves and pardons. He has not only the general power of the pardon, but also has power to grant reprieves, commute sentences, remove disabilities, to remit any
179

part of a sentence imposed by law. In my opinion, under the provisions of the Constitution above mentioned, the Governor unquestionably has the power and authority to grant a conditional pardon.
''The power to grant a pardon includes the power to grant a conditionlll pardon, the condition to be either precedent or subsequent." See Vol. 29, page 1570 Cyclopedia of Law. The law as above stated has been upheld by the Courts of Alabama, Arkansas, Iowa, Massachusetts, Michigan, Minnesota, Missouri, New York, Pennsylvania, South Carolina, 'l'exas, Vermont, Virginia, and the Supreme Court of the United States. I do not find, however, that the question has ever been passed upon by the Supreme Court of Georgia. However, the Legislature seems to have implied that the Governor had such power in the Act of September 9, 1908, known as "Parole Law."
On page 1570 of the work above stated, it is said:
"The condition may be of any nature, so long as it is not illegal, immoral, or_ impossible of performance. Thus, among other conditions, a pardon may be granted on condition that the person pardoned depart from and remain without the State, and this is true, even though the Constitution provides that under no circumstances shall any person be exiled from the State. So a pardon may provide that for a violation of any of its conditions, the recipient may be liable to summary arrest upon the Governor's warrant. Again a pardon may be granted upon the condition that the convicted person shall pay a certain sum of money to the State to reimburse it for the expense incurred in his trial, or that he shall be and remain a law-abiding citizen. But no conditions can be attaehed to a pardon that are to extend after the expiration of the term for which the prisoner was sentenced."
On page 1572 of the same work, it is said:
"A breach of the condition of a pardon avoids and annuls the pardon. Execution of the original sentence may then be enforced."
"A conditional pardon is a grant to the validity of which acceptance is essential." _
Manifestly if a Governor may grant a full pardon as a matter of grace he should have the power to pardon on conditions beneficial alike to the convict and to society.
The law, an above stated, has been sustained and upheld by a large numb~r of the States, and by the Supreme Court of the
180

United States. I, therefore, think that a conditional pardon in this State, if accepted, is perfectly valid and legal.
Yours very truly,
w CLIFFORD .ALKER,
Attorney-General.
That part of the Parole Law which provides that the Gove11nor can not grant a conditional pardon until the convict has served the minimum sentence fixed by law as punishment for the crime for which he has been convicted is unconstitutional.
Atlanta, Ga., December 22, 1915. Hon. Prison Commission of Georgia, R. E. Davison, Chairman,
State Capitol, Atlanta. GENTLEMEN: I have your request for an opinion on the question as to whether or not the following provision of the Act of the General Assembly, approved September 9th, 1908, known as the "Parole Law," to wit:
"That no parole or conditional pardon shall be granted unto any prisoner until he shall have served at least the minimum sentence fixed by law as punishment for the crime for which he has been convicted,"
is in violation of Art. 5, Sec. 1, Par. 12 of the Constitution of this State so far as the same relates to the grant of a conditional pardon.
In reply, I will say that I have already submitted an opinion holding that the power to grant an unconditional pardon includes the power to grant a conditional pardon, and that the Governor of this State has this power under the provisions of paragraph of the Constitution above referred to. The said paragraph reads as follows, so far as it relates to this matter:
"He shall have power to grant reprieves and pardons, to com mute penalties, remove disabilities imposed by law, and to remit any part of a sentence for offenses against the State, after conviction, except in case of' treason and impeachment, subject to such regulations as may be provided by law relative to the manner of applying for pardons."
It will be seen from the above quotation that the power of the Governor in this State to grant pardons, etc., is very broad and
181

that the Legislature is empowered to make regulations relative only the manner of applying for pardons.
While I find no rulings of the Supreme Court of Georgia on this point, the universal holding of the Courts of last resort in other States is to the effect that where the Governor is given power under the Constitution to grant reprieves and pardons, any limitation or restriction or encroachment on this power by the .Acts of the Legislature are utterly null and void unless the the Constitution itself imposes such restrictions or limitations. In this connection see the case of
Oklahoma v. Richardson, 49 L. R. A., p. 440. People v. March, (Mich.) 51 L. R. A., p. 461. Re Conditional discharge of convicts, 56 L. R. A., (Vt.) 658.
In the case of Rich v. State of .Michigan, 104 Mich., 436, almost the identical question now under consideration was before the Supreme Court of Michigan. It appears that the State of Michigan has a constitutional provision relating to the granting of pardons similar to our own and containing the same provision relative to the manner of applying for pardons. In this case it was held that an .Act of the Legislature providing for an .Advisory Board was unconstitutional because it might in some degree interfere with the free exercise of the pardoningpower by the Governor.
In Re Moore, 4 Wyo., 98, practically the same question was before the Supreme Court of that State, involving a similar constitutional provision to ours; it was held that any law which might limit or impose any restriction upon the authority of thf:! Governor to grant pardons is unconstitutional.
It seems to me there can be no doubt that the provisions of the .Act above referred to limit and restrict the power of the Governor to grant pardons for it provides that no conditional pardon shall be granted unto any prisoner until he shall have served at least the minimum sentence fixed by law as punishment for the crime for which he had been convicted. Certainly it can not be said that such a provision in the law relates only to the manner of applying for pardons. If the Governor has the power to grant a conditional pardon, then such a provision certainly limits his authority in this respect, a~cording to a long line of authorities on this question in many of the States.
182

I am, therefore, constrained to hold that the provisions of the Act above quoted are unconstitutional.
Yours very truly, CLIFFORD wALKER, Attorney-General.
Where a convict is sentenced to serve more than one sentence con. currently the Prison Commission would have authority to grant a parole at the expiration of the minimum term of sentence fixed by law for the offense for which the longest of the concurrent sentences was imposed.
September 21, 1916. Hon. R. E. Davison, Chairman,
State Capitol, Atlanta. DEAR SIR : I have before me your favor asking my opinion as follows:
"A convict is held under three sentences from the Superior Court under conviction for burglary and given a ten-year sentence in each case to be served concurrently. \Vhen would this convict be entitled to the benefit of the parole law Y"
If the sentences were imposed by the same court under the conditions named they would all expire at the end of ten years. 135 Ga. 529 (6) .. While the exact question !>ubmitted has not been determined by our courts, I am of the opinion that the Commission would have authority to grant a parole at the expiration of the minimum term of sentence fixed by law for the offense for which the longest of the concurrent sentences was imposed. However, the Commission has express authority to promulgate regulations to cover such cases and in its discretion it can consider the plurality of sentences and act accordingly. In other words, the fact that the court had seen fit to impose more than one sentence, especially as in this case the extreme penalty in each case had been imposed, should be weighed by the Commission in passing upon the matter on its merit.
I trust the above gives you the information you desire. Yours very truly, CLIFFORD WALKER, Attorney-General.
183

OPINIONS TO THE BOARD OF HEALTH

The State Board of Health has no power to purchase diphtheria antitoxin under Sec. 7, p. 62, Acts of 1915 (Extraordinary Session), making appropriations for the manufacture and distribution of such antitoxin.

Dr. H. F. Harris, Secretary, State Capitol, Atlanta.

July 27, 1916.

DEAR Srn: I have received your favor of even date in which you ask:

"Can the language used in Section 7, page 62, of the Acts of the Legislature of 1915, where the expression occurs 'for the manufacture and distribution of diphtheria antitoxin' be construed as the purchase from manufacturing concerns of antitoxin and its subsequent distribution?"

I note you say further :

"When first appropriated in 1908, money for this purpose was asked for the reason that manufacturers charged exorbitant prices, and I went to the Legislature and told them I could manu facture much cheaper and thus save the people much money. Though there had never been any money appropriated for buying antitoxin before, the first' Act was distinctly passed with a view of saving the people of the State the necessity of buying."

Replying to your favor, I beg to say I am clearly o the opinion the authority under the Act of 19'15 to manufacture and distribute antitoxin can not be construed as granting authority to purchase antitoxin.
If the Board desires such authority an amendment could be secured from the Legislature.
lrours very truly,
CLIFFORD WALKER,
Attorney-General.

184

1. Where a county has adopted the provisions of the Health Laws, as provided in the Acts of 1914 (Acts 1914, p. 124), by the recommendations of two grand juries and the selection of a County Board of Health such County Board can be compelled to appoint the Health Officer required under Section 6 of said Act.
2. Where the Grand Jury fails to complete the Board by the election of a physician as a member thereof there is no provision in said law for forcing them to so complete it.
3. Where the Grand Jury fails to elect a third member of such County Board of Health the Superintendent of Schools and the Chairman of the Board of County Commissioners, or the Ordi~ nary, as the case may be, may exercise the powers of such County Board.
August 15, 1916.
Dr. W. F. Harris, Sec1etary State Board of Health, . State Capitol, Atlanta.
DEAR SIR: I have your communication of recent date in which you state that the Board of Health of this State desires my opinion on the following matters:
First. Under the Act approved August 14th, 1914 (Acts 1914, page 124) a certain county adopted the provisions of this Act by the recommendation of two successive grand juries of the county. Also, the Board of Health of the County was completed by the election by the Grand Jury of a physician as a member of this Board. After the completion of the Board as set out above, the Board decided that the county was not able to provide a_ Health Officer as required under the provisions of the Act named, and refused to appoint such an officer, and further refused to carry out the provisions of the law as contained in this Act.
You wish to know whether or not there is any way by which said Board can be forced to appoint the Health Officer and otherwise put into execution the provisions o'f the Act.
In reply I will say that in my opinion the Board could be forced by Mandamus to appoint the Health Officer as required under Section 6 of the Act above mentioned. See Section 5440 of the Code. Also, 14 Am. and Eng. Enc. of Law, Art. Mandamus, 104. However, the Board would still have the right to fix the compensation of this officer, in any amount not less than twelve hundred dollars per annum.
I do not think that there is any provision of law by which the
185

Board can be forced to put into execution the other provisions of the Act. The usual remedy in such oases is that of mandamus but this remedy is not available to compel a general course of , official conduct for a long series of continuous acts to be performed under varying conditions. See Jackson vs. Cochran, 1M Ga. 396. .
It is possible that the members of this Board may be subject to indictment and removal from office for failure to perform their dutie~ under the law as provided in Section 295 of the Criminal Code' of this State. This Section has not been construed by the Supreme Court and it is doubtful whether or not it applies to the case under consideration.
Second. Your next question is whether or not in a case where the Grand Jury fails to complete the Board as required by law by failing to elect a physician a member thereof there is any method by which the Grand Jury may be forced to comply with the law and complete tpe Board. In reply to this question I will say that under the Act of 1914 there is no way provided by law by which the Grand Jury can be forced to make the election, and complete the Board.
.Third. Yo~r next question is whether or not the Superintendent of Schools and the Chairman of the Board of County Commissioners or the Ordinary, as the case may be, may exercise the powers of a County Board of Health in a case where the Grand Jury fails or refuses to elect a third member. In reply to this question I will say that in my opinion in such a case the officers mentioned could exercise all the powers of the Board of Health for the County. Section 2 of the Act provides: ''All the powers and authority now vested in the county authorities by Chapter 7, governing sanitary regulations by county authorities embraced in Sections 1670 (2), 1676, inclusive, of the Code of 1910, are hereby conferred upon and vested in the County Boards of Health created and established under the provisions of this Act.'" After the passage of this Act the county authorities were deprived of the powers vested in them prior to that time so far as the same related to the execution of the health laws and regulations. If the two members of the Board above referred to can not act for the reason that the third member , has not been appointed or elected, then the county would be deprived of the services of any health officer having authority
186

to carry out the health laws and regulations. I do not think the Legislature intended that such a condition should exist, and as the two members mentioned above constitute a quorum of the Board, I am of the opinion that they have the authority to exercise the powers vested in this Board.
I hope the above will give you the information you desire. Yours very truly,
CLIFFORD wALKER,
Attorney-General.
The State Board of Health is authorized to report and publish facts officially determined by the Board concerning any medicine or drug or alleged patent medicine to be injurious to the health. of the people.
October 14, 1916. Dr. H. F. Harris, Secretary, State Board of Health,
State Capitol, Atlanta. DEAR Sm: I have before me your favor of recent date in which you ask me to give you an opinion as to the right of the State Board of Health to publish, for the information and the protection of the people of the State, information concerning certain largely advertised alleged patent medicines considered to be by the Board of Health, injurious to the health of the State. In response thereto, I beg to say that the authority of the Board is based upon Section 1662 of the Code of Georgia:
"The State Board of Health shall have supervision of all matters relating to the preservation of the life and health of the people of the State."
In my judgment, the authority here quoted authorizes the State Board of Health to report and publish the facts officially determined by the Board concerning any medicine or drug, or alleged patent medicine, to be injurious to the health of the people.
In ascertaining the fact and reporting thereon the State Board of Health would be acting in a quasi-judicial capacity. Statements so made and published with the bona fide intent and purpose of preserving the public health would be made in the performance of a public duty.
187

Section 4436 of the Code of Georgia reads as follows:
"The following are deemed privileged communications; I. Statements made bona fide in the performance of a public duty."
As to such statements the following principles of law apply: 1. I suit should be brought against the members of the Board for damages they could relieve themselves from any liability by proving the truth of the statements made. "The truth of the charge made may always be proved in justification of the libel or slander." Section 4435 of the Code of Georgia.
2. I the members of the Board, in such a suit, were unable to sustain the truth of the charges made, they would still not -be liable for damages if they could satisfy the jury that they were acting with no wrong motive and with no malice, but in a bona fide purpose and fntent of protecting the public health. On the other hand, if the Board were unable to sustain the truth of the charges made, and the jury believed that they were acting with wrong motive and with malice, they would be liable for damages. However, in either case, the burden of proof would be upon the plaintiff bringing the suit, to show both that the charges were false and that the statements were made with wrong motive and with-malice. In other words, if the Board be acting in line with its duty to the people under the law they can not be made liable for damages until the plaintiff satisfies the jury that the statements made were false and that they were made with wrong motive and with malice.
The principles hereinbefore announced were before the court in the case of Beeks vs. Dickinson County, 131 Iowa, 247. This case involved the liability of the individual members of the Board of Health for enforcing a quarantine of the plaintiff's family on account of a supposed case of small-pox in such family. It appeared that no small-pox existed in the family. The court says:
"The statute makes it the duty of health officers to quarantine against 'all infectious or contagious diseases dangerous to the public' and it can not well be qnPstioned that the defendants were acting within the scope of their duty as such officers, and that in establishing the quarantine they were acting in a quasijudicial character. They were vested with the power to determine whether an infectious or contagions disease existed in the appel-
188

!ant's family, and if found to exist their duty under the statute required them to take the proper steps to prevent ite spread, and had they neglected to do so they would have been culpable in a high degree. They were therefore acting judicially, and it is the general rule that officers so acting are not liable for injuries which may result from such acts performed in the honest exercise of" their judgment, however erroneous or mistaken th.e action may be, provided there be no malice or wrong motive present. Raymond vs. Fish, 51 Conn., 80, (50 .Am. Rep., 3); Lowe vs. Conroy, 120 Wis., 151, (97 N. W. 942, 66 L. R. .A. 907); see, also, Paekard vs. Voltz, supra. In some cases an exception jo this general rule has been recognized, and the individual officers had been held liable because of the maxim that where there is a wrong there is a remedy. See Lowe vs. Conroy, supra, and cases cited therein, _and McCord vs. High, 24 Iowa, 336, where Judge Dillon, in a concurring opinion, recognizes and applies the rule. We are of the opinion, however, that where the public health is involved, this rule should not be applied, notwithstanding the fact that courts of great ability have so held. It is the modern tendency of judicial opinion to hold that the public health is the highest law of the land and 'whenever a police regulation is reasonably demonstrated to be a promoter of public health all constitutionally guaranteed rights must give way to be sacrificed without compensation to the owner.' 2 Tiedeman on State and Federal Control, Section 169.
"Nor does this doctrine necessarily conflict with the maxim to which we have referred. As we have already said, this board of health was a creation of the statute and its paramount duty was to protect the public health; its duty, then, was to the public and not to any individual member thereof, except to act honestly and without design to injure him. If a health officer fails to do his duty no individual may complain, for the duty is public and the officer is not charged with any individual duty to any particular person. Cooley on Torts, 382. If there be no liability for an omission of public duty, it would seem to follow without question that an erronf'ous performance should not subject the officer to personal liability. It may, it is true, cause an injury to the individual, but it is not a wrong because the officer owes the individual no duty beyond what we have already stated. Cooley on Torts, 379, 380. In volume five of his work on Negligence, Judge Thompson says: 'So a board of health may establish quarantine regulations and thereby cut off the entire trade of one section of the country with another. This measure may break up the business of a particular person and drive him into insolvency, and yet he would have n<, action for damages against the members of the board, although it might turn out that the regulation was in point of fact wholly unnecessary.' It is 'darn-
189

num absque injuris.' Benden vs. Nashua, 17 N. H. 477. See, also, Section 6376, Thompson on Negligence. Beeks vs. Dickinson County, 131 Iowa 247. Spe also, Atlanta News Publishing Company vs. l\Iedlock, 123 Georgia Reports, 714.''
Yours very truly,
CLIFFORD wALKER,
Attorney-General.
190

OPINIONS I TO THE COMMISSIONER OF FISH AND GAME
Section 2154 of the Co.de of this State of 1910 was repealed by the Act of the General Assembly approved August 21st, 1911.
Atlanta, Ga., August 11, 1915. Hon. Chas. E. Davis, Commissioner of Game and Fish,
State Capitol, Atlanta. DEAR SIR: I have your request of the lOth inst. for an opinion as to whether Section 2154 of the Code of this State of 1910 is now in force, or whether the same was repealed by the Act of the General Assembly approved August 21st, 1911. In reply I will say that while it is true that the subject matter contained in the Section of the Code mentioned is not referred to in the Act above cited, yet it is clearly apparent that in the passage of this Act the Legislature intended to make a general revision of the whole subject-matter contained in Sections 2143-2158 inclusive of the Code. Also, it is manifest that Section 2154 of the Code is inconsistent with the provisions of the said Act so far as the said Section relates to the commissioner of agriculture for the reason that said commissioner under the Act of 1911 has nothing to do with the Department of Game and Fish. Said Section is also inconsistent with Sections 594 (d), (f), (g), (m), of Park's Code of 1911. (Penal Code.) 'fhese last mentioned Sections were codified from the said Act of l911. For the reasons above stated I am of the opinion that the Section asked about in your request is not now of force for the reason that the same was repealed by the Act of the Legislature, approved August 21st, 1911. In this ~onnection see the case of Hammond vs. The State, lOth Court of Appeals Reports, page 143, in which the whole matter is discussed and said Section is held to have been repealed by the said Act of 1911.
Yours very truly,
CLIFFORD wALKER,
Attorney-General.
191

There is no prov1s1on of law by which the Game and Fish Commissioner can legally suspend the operation of Criminal Code Section 612 so far as it refers to taking fish during the months of February, March, and April.
September 1, 1915.
Hon. Chas. S. Arnow, Commissioner of Game and Fish, State Capitol, Atlanta.
DEAR SIR: I have your favor of the 20th inst., in which you ask an official opinion as to whether or not you may legally suspend the operation of Code Section 612 Criminal Code in so far as it refers to the taking of fish during the months of February, March and .April in the conduct of the business of the taking of shrimp and prawn for canning and other purposes. I am advised that this industry has developed into very large proportions in the last year or two, and that the strict enforcement of the law will result in great harm to the coast section of the State.
rio In reply I beg to say that I know of suggestion that could
come from this department in the premises. We must take the law as we find it. The suspension of one law but invites disregard of other laws. While statutes should be given reasonable construction this section is plain, and I find difficulty in seeing how its terms could be legally modified.
Of course the enforcement of the game and fish law are largely in your hands through your Wardens and Deputy Wardens, and a word from you to them would probably result in the suspension of prosecution for violations of this .Act. It is just as probable that the net result would be a failure to prosecute under other laws, and a consequent disregard of all laws to that extent. In other words, it seems unadvisable for a head of a department to be suggesting a suspension of any law.
I have considered the suggestion that in the taking of prawn, fish should be returned to the water. In this connection I am advised that fish so taken are always dead, and therefore this suggestion is of no value.
I conclude that this department is powerless to suggest a means of suspension of the law, unless you see fit to direct your Wardens to overlook such violations as may be incident to
192

the prawn business, which as indicated hereinbefore 1s to say the least a dangerous practice.
Yours very truly, CLIFFORD WALKER, .Attorn~y -General.
Discussion as to the time of expiration of commissions of the County_ Game Wardens under the present game and fish laws. Cannot hold office longer than the expiratibn of the term of the Commissioner who appointed them.
September 3, 1915. Hon. Chas. S. Arnow,
State Game and Fish Commissioner, State Capitol.
DEAR Sm: I acknowledge receipt of your favor of 1st inst. wherein you raise the question of the time of expiration of commissions of County Game Wardens under the present game and fish laws, and in response I beg to say:
The department of game and fish was reorganized under the Act of 1911 (See Acts of 1911, page 137, or Park's Code, 2158 et seq). The terms of this reorganizing Act provide that the State Game and Fish Commissioner ''shall appoint game and fish wardens and deputy wardens in each county of this State, such appointees to hold their office for the term of two years, unless sooner removed for cause by the Commissioner.'' Park's Code, 2158 (e).
Inasmuch as the department was organized under this Act and County \Vardens and Deputy Wardens appointed for two years from the first day of September, 1911, it appears that not only under the expressed terms of their appointment but under the terms of the law creating those offices the terms of . the original appointees expired by operation of law on the first day of September, 1913, and it likewise follows that the terms of those appointed to succeed the original appointees, that is to say those whose t~rms began September 1, 1913, expired on the first day of September, 1915, by operation of law. Park's Code, 2158 (d).
This department has heretofore rendered an opinion which I
193

now specially concur in to the effect that a retiring officer having authority to make appointments cannot make such appoint-

ments iii. cases where the terms expire after his retirement from office.. Nor can he do by indirection what the law inhibits directly. The equity of such ruling is readily apparent. If

the contrary were true untold mischief might result. Carried

to its final analysis such a system would result as follows : The retiring official with the co-operation of his original appointees

would secure the resignation of all his appointees a day before his retirement, make appointments -for two years in every case

and thereby fatally embarrass the incoming official by forcing

on him subordinates unfriendly or offensive to the administra-

tion, leaving it practically helpless throughout the entire term

of office.



It is clear that no such situation was ever contemplated by the law. It is repugnant to the policy of the State. A conscientious official is entitled to assistants and subordinates in thorough sympathy with his policies and this the law guaran-

tees to him.

In no department is this more important than in the case of the Department of Game and Fish. The law expressly

makes it his duty "to see that the laws now or hereafter enacted for the protection, propagation and preservation of game animals, game birds or other birds, and fish in this State are observed and that violations of said laws are promptly and

speedily prosecuted.'' The very nature of the duties here placed upon him require the most loyal support of his deputies as indeed he is powerless to act save through them.

I have not overlooked the fact that vacancies will naturally occur in these offices in cases other than hereiJ?.before contemplated. In such cases the authority of the Commissioner is clear to fill the vacancies. But they are to be filled only for the unexpired term, which ends on the first o~ September every two years.

Very truly yours,

CLIFFORD WALKER,
Attorney-General.

194

Wardens and Deputy Wardens, under the Game and Fish Commissioner of the State, have a right to remove or break any dams, nets, traps, etc., placed across the streams of this State is violation of Section 603 of the Penal Code of 1910.

May'3, 1916. Hon. Chas. S. Arnow, Commissioner of Game and Fish,
State Capitol, Atlanta. DEAR SIR: I have received your favor of the 2nd in wllich you ask my opinion as to whether or not the Wardens and Deputy Wardens of your department have the right to remove or break any dams, nets, traps, etc., placed across the streams of this State in violation of Section 603 of the Penal Code for 19'10. This Section was passed before the establishment of your department and gave the Sheriff of the County the right to remove the said obstacles referred to in the above mentioned Section. In reply I will say that Section 5 of the Act approved August 21, 19'11 (Georgia Laws, Acts of 1911, page 139), says:

". . . Such Wardens and Deputy Wardens shall enforce all the provisions of this Act and all other lau:s in reference to game and fish in their respective counties. . . . "

The Wardens and Deputy Wardens were given the right to

enforce all the laws in force relative to Game and Fish and it

is therefore my opinion that they would have the right to re-

move the nets, and traps, etc., in any of the streams of this

State in violation of the Section above mentioned.

Trusting that this is the information you desire, I am,



Yours very truly,

CLIFFORD WALKER,

Attorney-General.

The State had no authority to prohibit fishing within a limit of three miles from the low water mark on her coast in May, 1916. This defect in our law was remedied at the session of the General Assembly of 1916.
May, 9, 1916. Hon. Chas. S. Arnow, Commissioner of Game and Fish,
State Capitol, Atlanta. . DEAR SIR: I have your favor of May 4th together with a communication addressed to you by Mr. R. T. Bunkley, of
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Brunswick, Georgia. You wish to know whether or not the State of Georgia has the right during certain seasons of the year known as ''closed seasons'' to prohibit persons from fishing in the waters along the coast of this State and within what is known as the ''Three-mile limit'' from the shore. This question involves the jurisdiction of this State over what is usually called the "1\iaritine Belt." According to international law every independent State has the right to assume and exercise jurisdiction , over the territory in the ocean extending from low water mark on the shore three miles into the ocean. This right is recognized by the nations of the world. The only question that can arise in this case is whether or not it is necessary for such State to define her limits or boundaries so as to include the "]\l[aritine Belt" either in her Constitution or in her Statute. Laws. On this subject, in volume 12 of the Cyclqpedia of Law and Procedure, page 214 (B), it issaid:
"It has been said that the jurisdiction of a nation to punish offenses extends into the ocean to the distance of a cannon shot, which is estimated as one marine league from low water mark on the shore; but it is doubtful whether there is any jurisdiction to punish for offenses committed within this marine league limit, if the place or the offense is not an arm of the sea and within the body of a county, unless the jurisdiction is expressly conferred by the statute. Such jurisdiction, however, can undoubtedly be expressly conferred by statute, and such statutes have been enacted both in England and in the United States."
This question was before the District Court of the Northern District of California in 1894 in the case of Hombolt Lumber Manufacturing Association, 60 Fed. 428. This case involved an action for damages sustained within the three-mile limit on the coast of California. It was held that the courts of the State of California had jurisdiction of this case for the reason that the Constitution and the political code of that State fixed the western boundary of the State and of its counties on the Pacific Ocean three miles west of the shore line.
In the case of Commonwealth vs. 1\'lanchestcr, 152 ]\![ass. 230, the Supreme Court of that State held that the Courts of ]\l[assachusetts had jurisdiction to punish persons engaged in fishing in the waters of Buzzards Bay for the reason that the Legislature of that State had passed laws fixing the boundaries

of the State so as to include this bay. The court held that under international law the State of l\Iassachusetts had the authority to so fix her. boundaries as to assume jurisdiction over the waters of said bay.
The last mentioned case was carried to the Supreme Court of the United States and the judgment of the Supreme Court of Massachusetts. was affirmed. See 139 U. S. 240.
In the case of McCready vs. Virginia, 94 U." S. 391, the Supreme Court of the United States held:

"That each State owns the beds of all tide waters within its jurisdiction, and may appropriate them, to be used by its citizens as a common for taking and cultivating fish, if navigation be not thereby obstructed."

It will be noted that the State of Virginia had "appropriated" the waters involved in the last mentioned case by an Act of the Legislature, and had by such legislation extended her jurisdiction over them.
The State of Georgia by an act of the Legislature has fixed her boundaries so far as the coast is concerned in the following language:

"Thence along this line east, to a point designated thirty-seven links north of Ellicotts' l\Iound on the St. :Marys River; thence along the middle of said river to the Atlantic Ocean, and from thence to the mouth or inlet of said Savannah River." See Sec tion 16, Code.

Section 21 of the Code of this State reads as follows:

"The sovereignty and jurisdiction of this State extend to all

places within the limits of her boundaries, except so far as she

has voluntarily ceded the same to the United States, or adjacent

States, over particular localities."

.

Section 22nd of the Code reads as follows :

"The jurisdiction of this State and its laws extend to all per sons while within its limits, whether as citizens, denizens, or temporary sojourners."

It thus appears that the State of Georgia has never fixed or defined her limits or boundaries so as to include the "Maritime Belt," although she undoubtedly has the right to do so. I have been able to find no case holding that the jurisdiction of a State would extend three miles into the Ocean unless the State
197

had declared her purpose either in her Constitution or in her Statute Laws to include this territory within her boundaries. All the cases I have been able to find place the right of the State to exercise jurisdiction over such territory upon the fact that the State either in her Constitution or her Statute Laws has fixed and defined her territory or the limits thereof in such way as to include the three-mile limit. The Supreme Court of this State has not passed on the question. It therefore appears that there is some doubt as to the authority of the State of Georgia to enforce her laws within this limit on her coast, but in the light of the authorities herein cited I am inclined to the opinion that this State has no authority to prohibit fishing within a limit of three miles from low water mark on her coast.
Yours very truly,
CLIFFORD wALKER,
Attorney-General. NoTE.-The Legislature defined the limits of the State accordingly at its 1916 session.
The recent law, amending the game and fish laws, wherein it is provided that woodcock and summer or wood-duck may be killed from September 1st to January 1st following, contains a typographical error, in that It should read "December 1st" instead of "September 1st."
Section 10 of said Act, providing that it shall be lawful to kill buz. zards at any and all times. of the year, is not valid.
September 1, 1916.
Hon. Chas. S. Arnow, Commissioner of Game and Fish. State Capitol, Atlanta.
DEAR SIR: I have your letter of recent date requesting some information on the recent law amending the game and fish laws of this State.
You wish to know whether or not Section 7 of this Bill changes the law as it previously existed. In reply to this question I will say that Section 7 of the recent Bill amends Section 18 of the Act of 1911, by providing that persons following hounds in pursuant of foxes or deer or other animals not mentioned in the Act may go in or upon or through the uninclosed or unculti-
198

vated lands of another. You refer to the fact that the Bill-went to conference on this Section 7, and that the result of the conference does not appear in the Bill. Of course it is not necessary that anything that was done in conference appear in the Bill further than the amendments that may have been agreed to. Whatever the conference might have done the law stands as it appears now in Section 7.
With respect to Section 4 of the Act it appears in that portion thereof which sets forth the way in which the Act shall read when amended that woodcock and summer or wood-duck may be killed from September 1st to January 1st following. An inspection of the Bill will show that it does not provide for any amendment changing the season from December 1st to September 1st following. This change only appears as stated in the portion of the Act setting forth how the Bill shall read when amended. I am of the opinion that the word September in the Act is a typographical error and should be December. I do not think the Legislature intended to change the season, or rather the beginning of the season from December to September. For this reason I think that this part of the Act is invalid and that the law in this respect is the same as it was before the amendment and that this part of the law should read as follows: "Woodcock and summer or wood-duck from December 1st to January 1st following.'' See in. this connection case of Gilbert vs. Georgia, etc. R. R. Co., 104 Ga., page 412.
You ask about Section 10 of the Act. This Section provides ''That it shall be lawful to kill buzzards at any and all times of the year.'' In my judgment this Section is not valid for the following reasons to wit: Buzzards are non-game birds and are not referred to in the caption of this Act. This Section is .not in the form of an amendment either to the Act of 1911 or the Act of 1912. It does not purport to amend said laws referred to in said Bill nor any Section thereof. The Act of 1916 purports only to amend the Acts of 1911 and 1912 in respect to game birds, and Section 10 relates to a non-game bird and is not in the form of an amendment to any Act.
Yours very truly,
CLIFFORD WALKER,
Attorney-General.
199

OPINIONS TO GEOLOGICAL DEPARTMENT

The Advisory Board having approved the suggestion that the State

Geologist be permitted to expend not over $500.00 in purchasing

show cases and in collecting mineral specimens for the pur-

pose of exhibiting at the Georgia State Fair and other like

fairs in the State, the expenditures out of the funds of the

Geological Department would be legal.

"';, - '~~~litt~~~~m~.Y"

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C[ -,:j :;-

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Atlanta, Ga., December 13, 1916.

Hon. F. R. Jones, Secretary, Advisory Board of the Geological Survey, Atlanta, Ga.
DEAR SIR: I have before me your favor of even date in which you advise that at a meeting of the Board held this day it was ordered that the State Geologist be permitted to expend not over $500.00 in purchasing show cases and in collecting mineral specimens for the purpose of exhibiting at the Georgia State Fair and other like fairs in the State; this action taken subject to the approval of its legality by this Department.
Section 1965 of the Political Code fixes the duties of the State Geologist, enumerating certain duties and declares that he shall "perform such other duties as properly pertain to his office." Among the duties provided for in said Section and the following Section he is directed "to cause to be preserved in a museum specimens illustrating the geology, mineralogy, soils and wh~tever else may be discovered in the minerals or geological resources of Georgia, having scientific or economic value.''
Section 1971 provides that ''the Advisory Board shall have the supervision of the money expenditures in the prosecution of the work contemplated. The Board shall audit such accounts, item by item, and approve or reject the same, as in their judgment may be right.''
Not only the general conception of the sphere of th~ work of the Geological Department but the specific and express authority of the law indicates that the work now suggested fairly and reasonably comes within the purview of the Department., The

200

discretion as to such matters, within reasonable bounds, is placed in the Advisory Board. This Board, in its judgment, having approved the suggestion, believing it wise and beneficial, I am clearly of the opinion that the proposed expenditures out of the funds of the Geological Department would be legal.
Yours very truly,
CLIFFORD WALKER,
Attorney-General
201

OPINIONS TO STATE ENTOMOLOGIST

No provision is made for the payment of a per diem to the members of the State Board of Entomology while actually engaged in official duties.

Hon. Lee Worsham, State Entomologist, State Capitol, Atlanta.

October 2, 1916.

DEAR Sm : I have before me your request for an opinion pre-

ferred by the State Board of Entomology as to whether or not

a per diem may be paid the members of the Board while actually

engaged in official duties.

In response thereto, I regret to advise that I have been unable to find any legal authority for such payment. Under our Con-

stitution no money may: be drawn from the Treasury without a

legal appropriation therefor. No money can be paid from the

Governor's contingent fund to cover expenses which could have

been anticipated by the Legislature. The appropriations to

your Department do not authorize the payment of salaries or

per diem to members of the Board.

I am sure that this matter will receive proper consideration

when brought to the attention of the Legislature.

Yours very truly,

CLIFFORD WALKER,
_ Attorney-General.

202

OPINIONS TO STATE LIBRARIAN

The State Librarian is authorized to go outside of the endorsements , in ascertaining the qualificati9ns of an applicant for appointment of notary public for the State at large.

Mrs. Maud B. Cobb, State Librarian,

November 3, 1916.

State Capitol, Atlanta.

DEAR l\iADAM : I have before me your request for an opinion

in which you ask if the State Librarian is authorized to go back

of the endorsement as to character accompanying application for

appointment. In other words, you desire to know if you are

bound by such endorsements, or if the law permits you to make

other and further investigations as to the character and fitness

of the applicant..

Replying thereto, I beg to say that in my judgment you have

the same authority as the Judge of the Superior Court touching

the matter in g_1:estion. Discretion is yested in you as in the

Judge of the Superior Court, and I am clearly of the opinion

that if your investigation satisfies you that the applicant is un-

fitted for appointment you have the power and authority to so

hold and to decline to make the appointment.

Yours very truly,

CLIFFORD wALKER,
Attorney-General.

MISCELLANEOUS OPINIONS
A branch bank can not be a State Depository.
June 5, 1915. Hon. Grover C. Edmondson, Attorney-at-Law,
Alma, Ga. DEAR Sm : Yours of the 30th of June received. You ask whether or not, in the event the Town of Alma is added to the list of towns and cities in which the Governor can designate State Depositories, by a pending Bill in the Legislature, a branch business of a bank located and having its home office in another county,. be named by the Governor as a State Depository for Bacon County in which the Town of Alma is located Y In my opinion such a branch bank is only an agent of the parent bank. See :Morse on Banks and Banking, Vol.l, Fourth Edition, Section 46. Section 1249 of the Code provides that the Governor shall name a solvent chartered bank of good standing and credit in the towns named. I do not think this means .that he can name the agent of a bank located in some other town or county. Sections 1251 and 1252 of the Code provides that such banks thus named as State Depositories are to give bond and enter into contracts with the State through the Governor. I think the intention of the Code Sections mentioned is that the State shall deal with the chartered bank at its home office and not its branch or agent at some other place, or in some other town or county.
Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
204

A disabled or indigent Confederate -soldier, a resident of this State, has the right to carry on a plumbing business in any city or town without paying a license for the privilege of so doing and also to employ a servant to assist him.
June .30, 1915. Hon. lV. L. Stansell, Ordinary Walker County,
LaFayette, Ga. DEAR Sm: Yours of June 26th, requesting an opinion as to whether an old Confederate soldier is entitled to a license or certificate from the Ordinary of Walker County to carry on the business of "plumbing" in the Town of LaFayette, in which business he expects to employ one hand to assist him, has been received. In reply I will say that under Section 1886 of the Code of this State, any disabled or indigent Confederate soldier, if he is a resident of this State, has the right to carry on the business of plumbing in any Town or City without paying license for the privilege of so doing. This exemption would also apply to and cover any agent, servant, or employee of the Confederate soldier who may be acting for such soldier and in his name and merely employed by him. See the case of Hartfield et al. vs. City of Columbus, 109 Ga. Rep., page 112, and also, Anglin vs. State, 12 Ga. Apps., page 159. Upon the compliance by such soldier with the requirements of Section 1890 of the Code, it would become your duty under Section 1891 of the Code to issue the certificate therein provided for. But while such soldier is entitled to the above exemption as to "paying license" for the privilege of conducting the business, he would still be subject to all reasonable police regulations which cities and towns have the right to enact. See Campbell vs. Thomasville, 6 Ga. Apps. 237 (16).
Very truly yours, CLIFFORD WALKER, Attorney-General.
205

Confederate Veterans are not exempt from the tax on dealing in cigarettes.
July 2, 1915. fl. M. Fletcher,
Jackson, Ga. DEAR Sm: Replying to your inquiry of this morning in reference to tax demanded of l\Ir. R. W. 1\Iays, I find on examination that this office has formerly construed the cigarette tax along with the pistol tax and like taxes as police regulations and therefore not covered by the exemption allowed to Confederate Veterans. I believe this ruling is backed by authority and l\Ir. Mays will have to pay it unless he cares to test it in the courts.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
The State, or any county, cannot tax bonds, issued by a municipality to raise money to build a school building,_ where the charter of such city or town authorizes such bonds and where the same are held by residents of this State.
July 5, 1915. Mr. A. A. Arrington,
Ellaville, Ga. DEAR Sm : Your letter of June 29th, asking whether bonds sold by a city for the purpose of erecting a school building are subject to taxation by the State and county, has been received. In reply, I will say that if the charter of the city authorizes and contemplates the exercise of the power by the municipality to raise funds- for the purpose of erecting a school building, either by taxation or by the issue of bonds, or both, such bonds of a municipal corporation of this State in the hands of a resident of this State are not taxable by the State or any_ county thereof. See the case of Penick vs. Foster, 129th Ga. Rep., page 217.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
206

The purchaser of an automobile should immediately register the sam' and pay the full amount of the license tax before operating the same.
July 5th, 1915. Mr. E. L. Meadows,
Vidalia, Ga. DEAR SIR : Your letter of June 25th, addressed to Ron. Warren Grice, Attorney-General, has been turned over to me for reply. You ask whether a man who purchases an automobile now is required under the law to immediately register said machine with the Secretary of State and pay the tax of five dollars, and whether or not he would be required to pay only a proportionate part thereof, or whether or not his license would be good for twelve months from the date of said payment. Answering your first question, I think the purchaser of the machine would be required to register as required by law before running, driving, or operating the same. See Section 1 of the Act approved August 13, 1910, and also, Section 15 of the same Act. Also see Section 11 of the same Act as amended by an Act approved August 19, 1913. As to your second question, there is no provision in any of the Acts providing for the payment of any proportionate part of the tax. The Act simply provides for the payment of a fee for the calendar year during which the machine is registered, and for which the same is registered. It does not provide for any registration beyond the year, nor is there anything in any of the several Acts to indicate that any amount less than five dollars is to be received by the Secretary of State for the said registration. 1\Iy opinion, therefore, is that the purchaser could not pay a proportionate part of such tax for a part of the year, and that his license could not extend beyond the year of such registry.
Very truly yours, CLIFFORD WALKER, Attorney-General.
207

Law regarding the Alternative Four Day Road duty. Sections 704, 723 (a).
July 6th, 1915. Hon. W_. B. Townsend,
Dahlonega, Ga. DEAR SIR : I am in receipt of your letter of the 29th of June in which yon ask my opinion as to whether or not it is necessary in order to secure the Alternative Four Day Road law in your county that the present road law be abolished or suspended by recommendation of the Grand Jury. You say that your county, Lumpkin, at present has the Alternative Road law. In reply I will say that Section 704 of the Code of this State provides that the operation of this law, Alternative Road law, shall be suspended in any county of this State upon the recommendation of the Grand Jury, made at any term of the court, after a lapse of three years from the time it goes into effect. In order to secure the Four Day law it is necessary that the present law be suspended as provided in the above mentioned Section of the Code before an election could be had on the adoption of the former law. In the event your county has a population of between 9150 and 9950, Section 723 (a) of the Code will apply, and in that event, I think the operation of the said law would have to be suspended by an Act of the Legislature. However, this latter Section of the Code would not affect your county unless it has the population above indicated. You will understand that the law does not permit me to furnish an official opinion except on the request of the Governor, but, I am very glad to give you the above information.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Every citizen is authorized to give bond except in extreme cases.
July 7, 1915. Jfr. W. H. Hardie,
Ivey, Ga. DEAR SIR: The law allows the Attorney-General to furnish
208

official opinions only on request of the Governor, Code Section 254. However, I am glad to give you my opinion privately, and beg to say that the Constitution allows every citizen the right to give bond, except in extreme cases. If the officer has no extreme charge against your friend and he is ready to tender good and sufficient bond. in the county and this is refused your remedy would be to sue out a habeas corpus. This would insure every legal right.
Very truly yours, CLIFFORD WALKER, A ttorJ!ey-General.
The voters within any district in a county who have voted In stock law and fenced themselves can vote in a county election on the stock law.
July 7, 1915. Hon. A. J. Ledford,
Blairsville, Ga. DEAR SIR: Replying to your favor of recent date in which you ask if in a county where two or three districts have voted in stock law and fenced themselves the voters within those districts would be allowed to vote in a County election, I beg to say that Section 2049 of the Code provides as follows:
"Nothing herein contained shall prevent any district which has adopted this law from voting at any county election on the stock law."
Very truly yours, CLIFFORD WALKER, Attorney-General.
All commercial corporations are subject to the occupation tax.
July 9, 1915. Mr. R. L. Saville,
Dawson, Ga. DEAR SIR: Your recent letter in regard to tax of the Dawson Compress & Storage Co. received. You state that you have been called on to pay the occupation tax provided for in Section 950 of the Code of Georgia for 1910. You also state _in your letter
209

that the Dawson Compress & Storage Co. has leased all of its property to the Atlantic Compress Co., and that your company is doing no business further than making proper distribution among the stockholders of the rental on its property. You wish to know whether under these facts your company is liable for the aforesaid tax.
Under the Section above mentioned, to wit: Section 950 of the Code, ''All corporations incorporated under the laws of Georgia, shall, except those that are not organized for pecuniary gain or profit, and those that neither charge nor contemplate charging the public for services rendered,'' are required to pay each year an annual license or occupation tax.
The wording of the Act is somewhat peculiar, and there is no provision with .reference to the doing of business as a condition upon which the corporations referred to become liable for said tax. The question you ask has not been passed upon by the Supreme Court, as- far as I have been able to find, and, of course, I do not know what view the Supreme Court might take of it. Under the wording of the Act all corporations are liable for the tax except those not organized for pecuniary profit and gain or, in other words, commercial corporations. I assume, of course, that the Dawson Compress & Storage Co. was organized for pecuniary profit and gain to its stockholders. The provisions of the Act under consideration ~ake no exception in the case of such a corporation which has ceased to do business in the ordinary sense of the word. Such a corporation still maintains its corporate existence, and its franchise and its right to perform all the acts of a body corporate. The law also provides for the surrender by a corporation of its charter and franchise, but. so long as it retains its corporate existence and franchise, I think it is liable for the payment of this occupation tax. In order to escape the tax, it would be necessary for the corporation to surrender its charter and corporate franchise.
Of course, you will understand that the law does not permit me to furnish an official opinion unless upon the request of the Governor, and in relation to some matter in which the State is interested, but as a lawyer, I am glad to give you the above information.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
210

Law regarding witness' fees in a disbarment proceedings.
Atlanta, Ga., July 9, 1915. Hon. J. H. Gaskins,
Nashville, Ga. DEAR SIR: I have yours, of the 2nd instant in regard to the matter of witness' fees in a disbarment proceeding. You ask whether or not a county should be taxed with the fees of a non-resident witness in such a proceeding. I take it from your letter that in this case the proceeding was in the name of the State on the information of some person. You say that- the subpoenas were properly endorsed and that the fees were paid by the Treasurer before the rendition of .the verdict. The verdict was in favor of the defendant. In my opinion, under Section 4980 of the Code, it is only when the proceedings are instituted by the court of its own motion and are conducted in the name of the Stat~, that the costs are paid as in criminal cases. When the proceedings are instituted on the information of some relator, the costs would be paid as in civil cases. Under the Section of the Code above cited, I think it would be proper to take a judgment of the court against the relator for the amount of the costs in the case including the fees of the witnesses, and when the judgment has been satisfied, the proper amounts could be paid over to the Treasurer of the county to reimburse the county for the money paid out as fees to the witnesses. In no event, do I think, the county would be liable for the fees of these witnesses. You will understand that the law does not permit me to give an official _opinion except on t?-e request of the Governor and in relation to some matter in which the State is interested, but I am glad to furnish you my opinion as a lawyer.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
211 /

Where the express authority is given in the Charter, an officer of the municipality may proceed beyond the limits of the town or city and arrest persons who have violated the ordinances of such town or city. Such officer has also the right to go beyond the limits of the city and arrest an escaped convict from the city chain gang.
July 9, 1915. Hon. W. G. Park, C. A.,
Blakely, Ga.
DEAR SIR: I have yours on the 3rd inst. in which you request my opinion on the following legal question :
If a city convict escapes from the city chain-gang after conviction of the violation of a city law or ordinance, are the city officials authorized to go out of the corporate limits of the city and retake him, and if this can not be done how is he to be taken into custody again?
I think that Section 319 of the Penal Code of Georgia of 1910 answers your question. See also in that connection Collins vs. the State, 120 Ga. Rep., page 849.
A great many of the Acts of the Legislature providing for the incorporation of towns and cities provide that the marshals, policemen, or other peace officers of the municipality shall have the power and authority to make arrests for violations of the ordinances of such towns or cities outside of and beyond the corporate limits of the same. If, however, there is no such express authority given in the charter of the municipality, the officers of the town or city would not have the legal right to go beyond the limits of the town or city and make an arrest for the violation of its laws or to re-arrest an offender who had been convicted of the violation of such laws. This is true for the rea~on that where the charter power above mentioned is not given to the municipality, or its officers, such persons would cease to be officers as soon as they crossed the limits of the town or city. They would, therefore, outside of such town or city have no more authority to arrest than any other citizen of the State.
You will, of course, understand that the law does not permit me to furnish an official opinion except on the request of the Governor and in relation to some matter connected with the interest of the State. However, I am glad to give you the
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information asked for in your letter, hot officially, but as a lawyer.
Very truly yours,
w CLIFFORD ALRER,
Attorn.ey-General.
The Act establishing the city of Douglasville gives the town authorities the right to require every male resident thereof not under sixteen nor over fifty years of age to either work streets or pay a street tax.
July 10, 19'15. Mr. R. N. Kirby,
Douglasville, Ga. DEAR Sm: I have yours of recent date asking whether under the law a boy sixteen years of age can be compelled to pay street tax: You do not say what city or town you have reference to, but I presume you are asking with reference to the City of Douglasville, Ga. If you will examine the Act of the Legislature establishing the City of Douglasville, approved August 26th, 1891,, Section fourteen, you will find that the council of this city have the authority to require every male . resident thereof not under sixteen nor over fifty years of age to either work or pay a street tax. Of course, I do not know whether the council have ever passed such an ordinance, but they certainly have the authority to do so~ and to enforce the same, when passed. You will understand that under the law I am not permitted to furnish an official opinion except on request of the Governor in relation to some matter in which the State is interested, but, as a lawyer, I am glad to give you the information requested.
Very truly yours, CLIFFORD WALKER, Attorney-General.
213

Opinion relative to criminal cases in City Court of Quitman.

Hon. W. R. Knight, a. a. a.,

July 10, 1915.

Quitman, Ga. DEAR SIR: In response to the favor dated July 1, 1915, signed by Judge Long and other officials of the City Court of

Quitman, in which I am requested to give through you my

opinion relative to criminal cases in said court as established by the Act of 1912, page 287, Acts of the General Assembly,

the time when the court obtains jurisdiction, the costs to which the officers are entitled, etc., I beg to submit the following:
The law permits the Attorney-General to render an official opinion only on request of the Governor. Code Section 254.

However, it will be my pleasure to assist the county officers whenever I can though my opinion could hardly be considered

official.

I find very little law touching the questions submitted and I have concluded that the proper determination thereof should

largely follow the analogies to the Superior Court practice. In fact this seems to be contemplated in Flint vs. State, 12 Ga. App. 173.

While the issuance of a warrant by a Justice of the Peace may be the beginning of a prosecution and in a sense the court may be held to have jurisdiction for certain purposes, it is clear to my mind that the position of the Solicitor is analogous to that of the Grand Jury. For argument, consider this case: A hotel proprietor, in the utmost good faith, presents to the Solicitor an affidavit in proper form charging a defendant therein named with violating the recently adopted law punishing one "beating a board bill." The first question asked .by the Solicitor would be : ''Did you have the proper notice posted~'' The prosecutor answering in the negative, it would clearly be the duty of the Solicitor to ignore the warrant. If in such case, the prosecutor had gone to a Justice

of the Peace and the Justice of the Peace had committed the defendant to the City Court, the Solicitor would act in the

same way. In this latter case the Court would probably be said to have had jurisdiction. The warrant and commitment would be returnable to the Clerk of the Court and the Solicitor

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would be bound to consider it though as indicated above he has the clear right and in such cases it is his duty to disregard or ignore the same so far as entering an accusation where he is satisfied that a case could not be made out. In this connection it is interesting to note that the J~stice of the Peace himself, in case he is satisfied that the prosecution is malicious, may tax the costs on the prosecutor. Sec. 950.
In the case indicated first above, it seems clear that the costs would have to be charged to insolvent costs; the prosecutor acted in good faith and would hardly ,be chargeable.
It is my opinion as a lawyer that whenever the Solicitor is satisfied that a case has been stated through affidavit or commitment, it is his duty instanter to prefer an accusation, file the same with the Clerk and have the case docketed. It then becomes in every respect in the jurisdiction of the Court and can be disposed of legally only by an order of the court. The costs must follow this order of court. The prosecutor could pay the costs by agreement in a settlement if approved of by the court; I recall no method by which he couid be made to pay the costs unwillingly except by a verdict of a jury on the trial of the case declaring the prosecution malicious and unfounded or a like judgment of the judge if he should act as judge and jury by agreement.
.Answering your questions more specifically, I am of the opinion that the Solicitor of the City Court of Quitman under the Act of 1912 is required under his oath of office to consider any misdemeanor alleged to have been committed in your county within the limitations fixed by law in whatever manner it may have been brought to his attention; if he conscientiously believes no crime has been committed it would be his duty to ignore it, acting as a Grand Jury acts when an alleged crime is presented to it. If he conscientiously believes a crime has been committed it is equally his duty on presentation of an affidavit to prefer an accusation instanter, have the defendant arrested and. the papers transmitted to the Clerk of the Court.
In the first case the prosecutor should probably pay the officer issuing the warrant or attesting .the affidavit though I know of no law requiring him to do so except in case of a preliminary hearing before a Justice as contemplated by Sec: 950. In the
215

latter case the costs, as stated, will follow the order of the judge in his discretion, except on trial and verdict declaring the prosecution malicious and unfounded.
While I have been Solicitor-General, I have never acted as Solicitor of a City Court and am not an expert in the practice in such matters. It is probable that some angle appearing to your officers may not have occurred to me, but I trust with what I have said, in connection with the observations of the Court in the Flint case (12 Ga. A.pp. 169-173) and the citations found in Park's Penal Code (Vol. 6), you may work out your difficulties satisfactorily.
If, however, I can be of further service to you or any of the officers in this matter I shall be pleased to have you write me further.
Very truly yours,
CLIFFORD WALKER,
.Attorney-General.

Discussion as to whether a "purely Farm Corporation'' is liable to the tax required under Section 950 of the Code.

July 10. 1915. Hon. lV. H. Cone, Ordinary,
Statesboro, Ga. DEAR Sm: I have received your favor of 5th instant in which you ask my opinion on the question therein raised, to wit: Is a "purely Farm Corporation" liable to the tax required under Section 950 of the Code 1'' I respectfully submit the following:

The law permits the .Attorney-General to render opinions

only on request of the -Governor (Code Section 254) so my

opinion can hardly be considered official.

The language of the Section of the Code referred to is as

follows:

-

"All corporations incorporated under the laws of Georgia shall, except those that are not organized for pecuniary gain or profit and those that neither charge nor contemplate charging the public for services rendered, be and they are hereby required to pay each year an annual license or occupation tax, etc."

I understand your question to be : ''Is a purely Farm Corporation one not organized for pecuniary gain or profit or

216

one that neither charges nor contemplates charging for services rendered.?"
The courts in construing the clause "those not organized for pecuniary gain or profit" apply the test of strict literal meaning of the words. For instance they hold that of the property of churches, the church-house itself, which has no income, neither charging admission to its services nor for any services rendered by its pastor or other employees, would not be considered as property held for "pecuniary gain or profit," while a brick store-house h-eld for renting purposes under the same title by the same church corporation would be held property for ''pecuniary gain or profit.''
Applying the same ruling to your question I am of the opinion that if the farm you refer to is held as an experiment farm or a show-farm of any kind whose object is the advancement of the agricultural education and information of the people, having no income which is not applied to the improvement of its facilities and the widening of its. sphere of influence as stated, charging no fees for services rendered and not organized for the purpose or with the intention of making money, in other words if its object is the same as a public library or a public art gallery, then the corporation would be exempt, otherwise it would not be exempt. If its prime object and purpose is unselfishly and patriotically to instruct and inspire and elevate the people it would be exempt; if to make money for its stockholders it would not be exempt.
The clause ''such as do not charge or contemplate charging the public for services rendered" refers to such institutions as orphans' homes, public libraries and art ga:lleries and would hardly exempt a farm unless it were a show farm or an experiment farm maintained not for profit but for instruction and example to other farmers, its income being applied to such maintenance. If the farm carries on regular farming operations, making all the income it can, charging full prices for its products and applying its income and profits to 'its stockholders, the corporation would not be exempt.
Trusting this will give you the information you desire, Very truly yours,
CLIFFORD wALKER,
Attorney-General.
Z17

Law governing the authority of a county to condemn private lands for the purpose of improving, widening, grading, etc., a public road.
July 13, 1915. Hon. D. B. Bullard,
State Capitol. DEAR SIR: Replying to your request for information as to the authority of a county to condemn private lands in this State for the purpose of improving, widening, grading, etc., of a public road, I beg to say that the information you seek will be found in Section 5243 of the Code of 1910. This Section reads as follows :
"In all cases when it shall become necessary to condemn land in any county of this State, for the purpose of grading, improving, turnpiking, paving, widening, or macadamizing public roads, for the use and convenience of the public, the county authorities, consisting of the Ordinary or County Commissioners, as the case may be, shall have power and authority to condemn the lands of private persons or corporations so as to increase the width of said roads to a width, as in the judgment of such county authorities shall be proper, not to exceed a width of fifty feet at the_base of said road."
You will notice that this Section has reference only to the - widening, etc., of roads already established, and not to the establishing of new roads.
The proceeding for condemnation of property for the purposes set- out in the above quoted Section is the ordinary condemnation proceeding as set out in Sections 5206 and 5246, inclusive, of the Code of 1910. The only exception to the usual proceeding is found in Sections 5244, 5245 and 5246 of the Code.
Very truly yours, CLIFFORD WALKER, Attorney-General.
The Act providing for the prompt payment of the Teachers of Georgia is constitutional.
July 16, 1915. Hon. John D. Walker,
State Capitol, Atlanta. DEAR SIR: Replying to your ,request for my opinion as to
218

the Constitutionality of the Act providing for the prompt payment of the Teachers of Georgia, I beg to say that the Act was prepared after repeated conferences participated in by Governor Harris, himself one of Georgia's greatest lawyers, Former Attorney-General Hart, Col. Hollins Randolph, Attorney for the Federal Reserve Bank, and myself as, lawyers, together with yourself as a Banker and Business man and Mr. Brittain as an Educator. We had the Constitutional inhibition against the creation of additional debt by the State constantly in view and we considered that the Act referred to sought to pay existing debts of the State to the Teachers after maturity and not to make any new debts.
I am clearly of opinion that the Governor can be given authority to issue his warrants on the Treasury at the end of each month in payment of Teachers for work done during that month and that the Teachers are entitled to the warrants. The Teachers can then keep the warrants in their pockets till Fall if they prefer; they can deposit them in a safe for protection or they can sell them if they see fit. In no event would this be creating a new debt on the State; the debt had already been incurred and your Act simply provides a prompt payment thereof.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Assuming that all legal requirements have been complied with, It is not illegal for a local school district to levy and collect school taxes on a railroad running through the district, if the county tax had not been levied by the county authorities prior to the time of the election for such taxes.
July 23, 1915. Mr. .A. S. Rainey, Tax-Receiver,
Ellaville, Ga.
DEAR SIR: Your letter of July 17, addressed to Hon. John c.
Hart, Atlanta, Ga., has been turned over to me for reply. You wish to know whether or not the Trustees of the Ellaville local school district have the authority to levy a school tax on a railroad passing through this district, for the year 1915. It appears from your letter that this local school district voted on a local
219

school tax on July lOth, 1915. It does not appear from your letter whether at that time the county tax had been levied by the county authorities. Assuming that all the legal requirements have been complied with in the matter of laying out the county into local school districts and in calling the election, and that the election is legal, if the county tax had not been levied by the county authorities prior to the time of the election, or if the day for so doing had not arrived, it would not be illegal for the district school tax to be levied and collected for the year 1915. See the case of Cairo Banking Co. vs. Ponder, TaxCollector, et al., 131 Ga. 708.
Very truly yours, CLIFFORD WALKER, Attorney-General.
The tax exemptions mentioned in Sec. 994 of the Code apply only to blind persons, persons with one arm or one leg, and all other persons having lost a limb or limbs, or deformed by nature.
July 23, 1915. Judge W. L. Stansell, Ordinary,
LaFayette, Ga. DEAR Sm: Replying to your favor of 21st instant I beg to say that your interpretation of the law is correct. However, much we might wish to. stretch it, exemptions from taxations are like criminal laws-they must be construed strictly and no person or class of persons can legally be exempted unless the statute clearly includes them. In this instance only
"Blind persons, persons with one arm or one leg, and all other persons having lost a limb or limbs, or deformed by nature"
are exempted. The Legislature now in session has the power to add to these
exemptions. If you think wise you might refer the parties to your member of the Legislature.
Very truly yours, CLIFFORD WALKER, Attorney-General.
220

The Act regulating the occupation of barbers does not apply in cities or towns having less than 5,000 inhabitants.
July 23, 1915. Mr. Fred S. Walton,
305 W. Pine St., Milledgeville, Ga.
DEAR SIR: Your letter to Hon. W. A. Wright has been
turned over to me for r'eply. You wish to know whether the Act of the Legislature approved August 17, 1914, regulating the occupation of barbers, applies to persons following that business in cities or towns in excess of 5,000 inhabitants.
In reply I will say that this Act by its terms only applies to persons following that occupation in cities and towns in excess of 5,000 inhabitants, and does not apply to cities and towns having a smaller population than that above stated. If the city of Milledgeville has a population smaller than 5,000, as stated in your letter, the Act would not apply to persons carrying on this occupation therein.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
The fact that there is an incorporated town within a local school tax district does not prevent the establishment of such a district.
July 23, 1915. Mr. C. R. Strange,
Bridgeboro, Ga. DEAR Sm: I have your letter of June 29th, requesting my opinion as to the legality of your local district school tax. I assume that your county has been properly and legally laid off into school districts, that is to say, that the entire county has been so laid off. Also, I do not find that the town of Bridgeboro, at the time the election was held, was levying any local school tax. If your county is properly laid off into school districts, and the town of Bridgeboro was not levying any local school tax, under the facts and circumstances as presented in your letter, I am of the opinion that there is no illegality in your local school district, nor in the tax. The fact that there is any incorporated town in this district does not prevent the
~2l

establishment of the district, according to law, nor the en forcement of your local school tax. See Code, Section 1532.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
Taxes must be levied on all property of like class equally and uniformly. All businesses of like character should be given In at a uniform rate of valuation.
July 28, 1915. Mr. A. P. Johnson, President,
Blue Ridge, Ga. DEAR Sm: I have received your favor of recent date. Replying thereto, I beg to say that the law allows the AttorneyGeneral to render official opinions only on request of the Governor in matters touching the interests of the State directly. It must be understood that this opinion is only as an individual lawyer and not officially. The basis of taxation is equality and uniformity. All taxes must be levied on all classes of property, or rather on all property of like class equally and uniformly. I understand that it is not the policy of any of the taxing powers to tax property at its full value. Of course, its full value is the proper basis, but there should be no discrimination. In other words, if your business is taxed at its full value then all businesses of like class should be so taxed. If other such businesses are taxed upon a basis of 50 or 60 or 75 per cent. of its value, then your business should be so t~xed. Equality is equity and equity is right, and such should be the legal basis. From this statement it must appear whether you are being legally taxed or not. If the same rule is applied to all other businesses of like character it is legal; otherwise, it is not legal.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
222

Where a tax fi. fa. is issued against a mule, but before the levy can be made, the owner of the mule carries it to another state and sells it to a,third party, the mule can be levied upon if it returns to the original county,

Mr. A. B. Robertson, Tax-Collector,

July. 29, 1!:!15.

Ringgold, .Ga. DEAR Sm: I have yours of the 19th inst. asking for some information in regard to the levy of a tax fi. fa. The facts

as I gather them from your letter are that a Gypsy trader engaged in business in your county, and failing to pay the

tax provided for in Section 948 of the Code, you as Tax-Col-

lector issued an execution for this tax. The trader, however,

got away before any levy was made, and carried his mules

with him into the State of Tennessee, where the mule in question was sold by him to some third party. Afterwards, the

mule got away and returned to your county. You wish to

know whether or not this mule can now be held for the tax. Under Section 977 and 978 and 1152 of the Code of 1910

you certainly had the right to issue the fi. fa. This fi. fa. could have been levied on any property belonging to the

trader.

Under Sections 977 and 978 this tax becomes due under the law as S<?On as the trader begins to do business in any county;

in fact, he is required to register and pay the tax before he

opens up or carries on the business.

Under Sections 1140 and 3333 of the Code a lien for taxes arises on all the property of the taxpayer as soon as the tax becomes due, whether the same is given in for taxation or not.

See also Section 3329 of the Code, and the following cases:

Doe ex dem. vs. Deavers, 8 Ga. 479 (1, 2). The Atlanta, etc. R. R. Co. vs. State, 63 Ga. 483. Verdery vs. Dotterer, 69, Ga. 194. Winn vs. Butts, 127 Ga. 385 (3).

Under the facts stated in your letter. this lien for taxes attached to all the property of the trader as soon as he began business in your county. Under the law there is no way to discharge the lien of the State and county for taxes except to pay the taxes, and this lien is good for seven years. This applies both to real estate and personal property. A bona

223

fide purchaser for vahw without notice of the lien takes the property subject to the lien for the lien follows the property. See the Verdery case cited above, and also the \Vinn case and the Railroad case cited above. See also Section 1141 of the Code.
Under the law, I am of the opinion that the mule when it was found in your county was subject to your tax fi. fa. notwithstanding the fact that it had been carried to the State of Tennessee and sold to a third party.
You will understand that I can not give an official opinion except at the request of the Governor, but I am glad to give ytm the above information.
Very truly yours, CLIFFORD WALKER, Attorney-General. -
Legislature has the right, under Constitutional amendment passed last year, to abolish office of County Treasurer at any time. Present officer, however, should be allowed to serve out his term.
July 30, 1915. Hon. John G. Butler,
Blakely, Ga. DEAR SIR: Replying to your favor of 28th instant, I beg to say that it is my opinion that the Legislature has the right under the Constitutional Amendment passed last year to abolish the office of County Treasurer at any time it may see fit to do so. However, I have uniformly advised all the representatives that I thought equity and fairness demanded that the present officers should be allowed to serve out their terms and I understand in most cases this has been done.
Very truly yours, CLIFFORD WALKER, Attorney-General.
224

Laws governing the retirement of members of the Police 'and Fire Departments of the city of Augusta.
August 5, 1!h5. Mr. Geo. C. Schaufele, Supt., Richmond County Home,
Augusta, Ga. DEAR Sm: I have your letter of the 3rd inst., requesting some information in regard to the law for the retirement of members of the Police or Fire Departments of the City of Augusta. In reply, I will say that the first law on this subject was passed by the Legislature in the year 1903, and is found in the Acts of 1903, page 428. This law provided that any officer or private member of either of these departments who had served continuously therein for twenty-five years might be permitted to retire from active services on one-third of the pay of the rank of the position he was holding at the time of such retirement. This retirement was on the terms and conditions that the member obtain from one of the City physicians of the City of Augusta a certificate that he was no longer fit competently and fully to perform the active duties of his position. Upon the prosecution of the certificate to the commission or committee having charge of the department, if the committee or commission found the case to be meritorious they were authorized to retire such member as stated above. Such retired member was permitted to engage in any busines~ he might wish ani! was to draw the retired pay for the term of his natural life. However, he was subject at any time to call in cases of emergency to perform such services as he might be fit to perform. The Act further provided that it should not go into effect until it was adopted, by resolution or otherwise, by a majority vote of the City Council of the City of Augusta. The Council was authorized also to pass such ordinances as were necessary to carry into effect the provisions of the Act. Of course, I can not say what ordinances were passed by the Council or whether or not the Act was ever adopted by the Council of the City. As the Act was later amended I assume that it was properly adopted by the Council. The Act above mentioned was amended in 1913. The amendment will be found in the Acts of 1913, page 618. This amendment provides that any officer or private member of the departments above mentioned who has served continuously in either of
225

them for twenty-five years is permitted to retire frdm active service on half-pay of the rank or position he was holding at the time of his retirement. All he has to do is to notify in writing the person or persons in charge of the department of his intention to retire and of the time he has served. His retired pay is -to continue for life. This Act does not provide that it is to be ratified by the voters of the City of Augusta nor by the Council of the City.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
Discussion of the law of 1914 making it criminal to draw or utter checks, etc. without funds in the bank to cover the check.
August 5, 1915. H on. W. W. Dickson, J. P.,
Jefferson, Ga. DEAR SIR: I have your letter of the 4th inst. asking forsome information in regard to the law of 1914 making it criminal to draw or utter checks, etc., without funds in the bank to cover the check. The law says that in order for the act to be criminal, the check, draft or order must be drawn for a "present consideration," and the drawer must thereby "obtain from another, money or other thing of value, or induce such person to postpone any remedy he may have against such drawer." If the check, draft or order is given in payment of a past indebtedness no crime is thereby committed unless the person to wJ:wm the same is given is thereby induced to postpone any remedy he may have against the drawer. In the latter event the giving of the check, order or draft would be a crime under the statute, as the law seems to regard the postponing of any remedy against' the drawer as a ''thing of value" and a "present consideration." There can be no doubt that the giving of the check, order or draft is not criminal unless the drawer thereby obtains from another 'something of value, either money, goods, wares or merchandise or postponement of the remedy against the drawer if that is a thing of value. If the check, order or draft is given solely in pay-
226

ment of a past indebtedness, and there is no present considera tion, and no thing of value received at the time by the drawer, no crime is committed. If on the other hand, any thing of value is received at the time the check, order, or draft is given, and for which the check is given, or rather,' if. the check, order, or draft is the inducement by which the other party is led to part with anything of value, then, the giving of the same as criminal, provided the other elements of the crime exist, and the funds are not deposited within thirty days as provided by law.
You will understand that I am not permitted to give an official opinion on any question unless requested to do so by the Governor. This is not; therefore, an official opinion, but I am glad to give you the information requested, and I hope the above is a satisfactory answer to your question.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
Discussion of Section 994 of the Code, regarding the exemption of certain persons from paying license fees for the privilege of carrying on certain businesses.
August 12, 1915. Hon. T. N. Holcombe, Ordinary,
Valdosta, Ga. DEAR SIR: I have your letter of recent date asking for an opinion as to the meaning of Section 994 of the Code of this State of 1910. You wish to know whether the persons named in the said Section are exempt from municipal tax or license regardless of the business they engage in, or are they exempt from such tax or license only on the various kinds of business included in Sections 942, 943, 944, 945, 946 of the Code of 1910. Section 994 of the Code is the only Section I have been able to find exempting the persons mentioned therein from such taxes or licenses. This Section does not refer solely to Confederate soldiers and should not be confused with Section 1888 of the Code, which has reference to soldiers or veterans
227

of various wars. The ,latter Section allows a great many more exemptions than the former Section. Under Section 994, I think, the persons named therein are exempt only as to the various kinds of business referred to in Sections 942, 943, 9'44, 945, 946. The language is ''shall be relieved also from the payment of the taxes designated in Sectionii 942, 943, 944, 945, 946, and also from the payment of any county or municipal tax, if carrying on and dependent upon the kinds of business designated therein."
I think the first use of the word "also" means that as such persons had been exempt under Section 917 of the Code from the payment of poll tax, they are now, or "also" to be exempt under Section 994 from the payment of certain taxes set out in certain paragraphs of the Code, which said paragraphs are clearly set out in Section 994. The second use of the word "also" means that such persons having been exempt from the payment of poll tax under Section 917 and also from the payment of certain specific and occupation taxes as set out in certain named paragraphs of the Code, they are "also" to be relieved from the payment of any county or municipal tax u upon the kinds of business designated therein," if carrying on and dependent upon such business. ''The kinds of business therein" can only refer to the kinds of business designated in Sections 942 to 946, inclusive.
The words "provided, that before any person shall be entitled to the benefit of any other exemptions provided for in this Section, he shall go before the Ordinary, etc.," I think, mean that since certain persons have been exempted from the payment of poll tax under Section 917, before any person shall be tJntitled to the. benefit of any other exemptions besides those provided in Section 917, the said other exemptions being provided for in Section 99'4, he shall go before the Ordinary, etc.
I hope I have given you the information desired. Very truly yours,
CLIFFORD WALKER,
Attorney-General.
228

The boundary line between the States of Georgia and Florida is the middle of the St. Mary's river. One State could not operate ferry without consent of the other.
Atlanta, Ga., August 20, 1915. Mr. A. H. Prince,
President Kingsland Board of Trade, Kingsland, Ga.
DEAR SIR: I have your letter of the 14th l.nst. asking for some information on the .,following question: Which State, Georgia or Florida, has jurisdiction over St. l\Iary's river? Does Georgia own and control said river, or only a portion of it? and if only a portion of the river, what portion 1
In reply, I will say that the questions you ask are answered by Sections 16 and 20 of the Civil Code of this State of 1910.
Section 16, in describing the line, between Georgia and Florida, says:
"and thence along and down the western bank of said Chattahoochee, along the line or limit of high water mark, to its junction with the Flint river; thence along a certain line of survey made by Gustavus J. Orr, a surveyor on the part of Georgia, and W. Whitner, a surveyor on the part of Florida, beginning at a fore-and-aft tree, about four chains below the present junction, thence along this line east, to a point designated thirtyseven links north of Ellicott's Mound on the St. Mary's river,
. . thence along the middle of said river to the Atlantic ocean, etc." '
Section 20 of the Code says:
"The boundary line between Georgia and Florida shall be the line described from the junction of the Flint and Chattahoochee rivers to the point thirty-seven links north of Elliott's Mound, on the St. Mary's river; thence down said river to the Atlantic ocean."
It thus appears from the above quoted Sections of the Code, that the boundary line between the States of Georgia and Florida is in the middle of the St. Mary's river.
As to whether each State could own and operate a public ferry on this river, I think that the proper authorities of each State could operate such a ferry only with the consent or upon the agreement of the proper authorities of the other State.
You will understand that I am not permitted to give an official opinion on any question except at the request of the
229

Governor, but I am glad to furnish you the above information in the niatter.
Hoping that I have given you the information you desire, Very truly youril,
I CLIFFORD wALKER,
Attorney-General.

Organization of County Board of Health and term of office.

Hon. J. T. Colson, City Atty., Brunswick, Ga.

August 20, 1915.

DEAR SIR : Your letter of 11th instant could not be promptly answered because of the press of official work incident to the

closing of the legislative session. As you intimate the official duties of the Attorney-General

are limited to opinions furnished on request of the Governor.

The question you put is pertinent and interesting. As you

point out the law is impossible of enforcement literally inas-

much as two sessions of the Grand Jury could not possibly

have been held after the approval of the Act of August 17th,

1914, and before the First Thursday in January, 1915, (except, perhaps, in a few counties where the Grand Jury meets oftener

than twice a year).

However, the law directs that all Statutes shall have- a reason-

able construction-the plain intendent of the lawmaking body should be put in force unless unconstitutional. In this, case it

is clear that the Legislature could not have had in mind the

practical nullification of the law unless organization were per-

fected by the :F'irst 'l'hursday in January.

Reading the entire Act suggests that the intention of the Legis-

lature was that there should be uniform terms of office-that the first term should expire on the First Thursday in January, 1919,

and succeeding terms should expire every four years thereafter. It is my opinion, therefore, that your board should organize
at its pleasure for a term to expire on the First Thursday in

January, 1919, and thereafter for terms of four years from that date.

Very truly yours,

CLIFFORD WALKER,

Attorney-General.
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Exemption from road duty is limited to ministers and "all men who have lost one arm or one leg." Section 647.
August 24, 1915. Mr. J. E. King,
Baldwin, Ga. DEAR SIR : In response to your inquiry of 21st instant wherein you raise the question of your exemption from road duty under conditions of physical impairment therein .set out, I beg to say that the exemption is limited to ministers of the gospel and ''all men who have lost one arm or one leg.'' See Code of 1910, Paragraph 647. I feel that some concession should be made in your case and regret to find the law does not exempt you. But so the law is written.
Very truly yours, CLIFFORD WALKER, Attorney-General.
The Solicitor of a City Court is not a county officer.
Atlanta, Ga., August 27, 1915.
Hon. Homer C. Parker, Solicitor City Court, Statesboro, Ga.
DEAR SIR: I have your letter of recent date askin~ my opinion as to whether the Solicit,or of the City Court of Statesboro is a county officer within the meaning of Art. 11, Sec. 3, Par. 1 of the Constitution of this State as amended. In reply I will say that I do not think this office is a county office under the Constitution and laws of this State. The very paragraph of the Constitution mentioned (Code Sec. 660) declares that county offices "shall be uniform throughout the State, and of the same name, jurisdiction and remedies." These City Courts and their officers have never been uniform throughout the State. Some counties have them, some do not. No two City Courts are alike, but each is different from all the others. Their jurisdiction is different. In some, the Judge and Solicitor are appointed by the Governor; in others the Solicitor-General of the circuit is Solicitor; in others, both are elected by the people. For
231

a full history of these Courts, see the case of Welborne vs. State, 114 Ga. Rep., page 793. Originally the jurisdiction of the City Courts of Atlanta and Savannah was confined to the corporate limits of the cities in which they were located.
In the second place, these Courts are not created for the transaction of county matters any more than the Superior Courts are. Their business is the same as that of the Superior Courts so far as their jurisdiction extends, to wit, to enforce the laws of the State, especially in criminal matters. The business of county officers is the transaction of county matters or business entirely of a county nature, that is to say, matters relating to county revenue, roads, bridges, county property, etc. This is shown by the paragraph of the Constitution mentioned, and also by Art. 4, Chapter 5 of the Code, and especially Sections 111, 112, 113 thereof. See in this connection the case of McLain vs. State, 71 Ga. Rep., page 279 (3), in which it is held that a County School Commissioner is not a county officer largely for the reasons stated in this opinion.
For the reasons above stated I am of the opinion that the office of Solicitor of the City Court of Statesboro is not affected by the amendment to the Constitution mentioned in your letter.
Very truly yours, CLIFFORD WALKER, Attorney-General.
If the County Commissioners, or Ordinary where there are no Commissioners, autporize the payment of expenses in bringing a fugitive from justice back to the county for trial, such expenses should be paid out of the county treasury.
Atlanta, Ga., August 28th, 1915. Hon. A. B. Lovett, Solicitor City Court,
Sylvania, Ga. DEAR SIR: I have your letter of August 28th in which you ask for my opinion on the following question : Should the Sheriff's costs for bringing back a fugitive from justice to the county where the crime was committed ($2.00 per- day and necessary expenses), the fugitive having been charged by warrant and accusation with a misdemeanor, be paid out of the
232

county Treasury, or should it be paid by the disbursing officer of the City Court, out of a fine paid by the defendant under a plea of guilty; or in other words, should the Sheriff's costs of the nature indicated be paid as other costs out of ~he fine imposed, or does the law contemplate that such costs shall be paid in all cases out of the County Treasury 1
This is a very difficult question and is not at all free from doubt. It may require a decision of the Supreme Court to settle it. However, I will give you my opinion on it together with my reasons therefor.
The question involves a construction of Section 1134 of the .Penal Code of the State of 1910 which provides for the fees of sheriffs and among other things says :
"* *. * * and for bringing back fugitives from justice to the
county where the crime was committed, to be paid out of the County Treasury upon the approval of the County Commissioners or Ordinary, per day $2.00 and actual necessary expenses."
It would be easy to decide the question if the Code Section did not further provide as follows:
''Mileage, executing criminal, and for guards, herein provided, shall be paid by the county; and no cri.minal cost herein provided for shall be collectible out of the defendant until after conviction, except costs accruing upon forfeited recognizances.''
This Section might be construed to mean that costs for ''mileage, executing criminal, and for guards" are charges against the county, and that the other costs mentioned in the Section are to be collected out of the defendant. In fact, such has been the holding of the Supreme Court of this State in the case of Hall County vs. Gilmer, 123 Ga. Rep., page 173 (4), in relation to another item in the cost bill, to wit: the item of $1.25 allowed the sheriff for conducting a prisoner before a court or judge. However, the Section under consideration pz:ovides that said costs are "to be paid out of the County Treasury upon the approval of the Commissioners or Ordinary.'' In the case above cited the court says: "Nowhere in the Section (1134) is there any direct and explicit provision as to how the costs now under consideration ($1.25 for conducting a prisoner before court) shall be paid. It, therefore, holds that this cost is not a charge against the county, but is to be coUected out of the defendant. As to the costs now under consideration, there seems
233

to be a direct and explicit provision that they are to be paid out of the Treasury of the County.
In Barron vs. Terrell, reported in the 124th Ga. Rep. 1077, it is said:
''On the other hand, if the prior Act is susceptible of two constructions, the subsequent Act, under the authority of United States vs. Freeman, 3 Howard 556, is controlling as to the meaning to be put upon it. At the sessi<.m of the General Assembly for 1914 (Acts of 1914, page 123) an Act was passed providing that when a fugitive from justice is beyond the limits of the State, in order to make the expense of bringing him back to the county where the crime was committed, including the two dollars per day, a charge upon the county where the crime was committed, the incurring of any such expense and the amount thereof shall first be authorized by the Ordinary, Commissioners, or other officers in charge of the fiscal affairs of the county.'' Thus if we give to Section 1134 of the Code the meaning evidently attached to it by the General Assembly when the Act of 1914 was passed, as the Supreme Court says is proper, it would appear that prior to the said Act of 1914, the costs now under consideration, whether the fugitive be within or beyond the limits of the State, would, under the law, be a charge against the county and the county liable therefor. If there were not such a charge why was it necessary for the Legislature to say that there would not be such unless the amount thereof should be first authorizeu by the Ordinary, Commissioners, o; other officers in charge of the fiscal affairs of the county 1
I conclude therefore that in cases where the fugitive from justice is brought back from beyond the limits of the State, the Act of 1914 would apply, and that the cost under consideration would not be chargeable against the county unless the incurring and amount thereof should be first authorized by the county authorities.
If the fugitive from justice is within the limits of the State .and is brought back to the county where the offense was committed, the two dollars per day and the actual necessary expenses thereof would be costs to be paid out of the County Treasury. Of course these costs would not be charges against the county unless they were approved by the County Commissioners, or Ordinary, if there be no County Commissioners. I think it
234

would be the duty of the Commissioners or Ordinary to approve these costs unless some valid legal reason exists for their not doing so. This would be a matter for their sound legal discretion.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Whenever a person who is permanently registered falls to pay his taxes and is dropped from such registration list it is necessary for him to register again, when he pays up all of his taxes, in order to be entitled to vote at any election.
Atlanta, Ga., August 31, 1915. Hon. Thos. F. Thomson, Tax-Collector,
Savannah, Ga. DEAR Sm: Your letter to Hon. W. A. Wright, of the 27th inst. regarding tlie general registration hiw has been turned over to me for reply. Your question, as I understand it, is whether or not, when a person is registered on the permanent registration list and afterwards fails to pay his taxes, and is dropped from such list for this reason, and after being dropped from the list pays the taxes, is required to again register~ Section 3 of the Act of the General Assembly, approved August 19, 1913 (Acts of 1913, page 115), relating to the matter of permanent registration, among other things,. declares:
"Provided, that no person shall remain registered longer than he retains the qualification under which he registered."
One of the qualifications under which the voter registered was that he had paid all taxes. I am of the opinion that when the voter is dropped from the list for failure to pay taxes, it is necessary for him to register again.
Ve_ry truly yours, CLIFFORD wALKER, Attorney-General.
235

The County Board of Education has authority to determine any matter of local controversy in reference to the construction or administration of the school law. An appeal can be taken from their decision to the State Superintendent of Schools. Section 1485.
Atlanta, Ga., September 2, 1915. Dr. J. L. Weeks, Supt. of Schools,
Appling, Ga. DEAR SIR: I have your letter' of the 27th of August in regard to the threatened suit for injunction against the Board of Education of your county. I have also seen the letter in reference to this matter written by you to the State Superintendent of Schools. I gather from your letters that the County Board of Education of Columbia County is now providing a certain school in your county with one teacher and for a term of six months. The patrons of this school desire a school for a longer term. The Board does not feel justified in extending the term of this school, and some of the patrons are now threatening to bring suit to force the County Board to extend the term. You wish to know whether or not the courts will take hold of a matter like this, and whether or not the only remedy of these patrons is to appeal to the State School Superintendent.
_ In reply I will say that under Section 1485 of the Code of this State of 1910, the County Board has authority to determine any matter of local controversy in reference to the construction or administration of the school law. An appe~l can be taken from their decision to the State Superintendent of Schools.
The Supreme Court of this State has held in the case of Meadows vs. Board of Education of Paulding County, 136 Ga. Rep., page 153,. that the courts can not take cognizance of a matter of the nature mentioned in your letter until the parties have pursued the remedy pointed- out in the statute; that is to say, until they have carried the matter to the County Board and failing there to get a decjsion in their favor, appealed the case to the State Superintendent of Schools, and he has ruled against !Jlem.
It has also been held by our Supreme Court in the case of Dyer vs. Martin, 132 Ga. Rep., page 445, that a court of equity
236

will not interfere with the discretionary action of the governing officials of a county within the sphere of their legally delegated powers, unless such action is arbitrary and amounts to an abuse of discretion. See also, in this connection, the Meadows case above cited.
So it appears that the County Board of Education has jurisdiction to determine the matters mentioned in your letter, and that the courts will not interfere unless the action of the Board is oppressive, or arbitrary, or an abuse of their power_ or discretion.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.

State has the right to prescribe reasonable regulations and qualifications for persons practicing professions within Its borders. ' '

Mr. R. L. Mills, Augusta, Ga.

September 3, 1915.

DEAR Sm: The law of Georgia permits the Attorney-General to render an opinion only on request of the Governor. It has been my practice, however, not only to respond to requests for opinion as promptJy as official duties will permit, but to give my opinion as a lawyer whenever_it appears that the same may be of some service.
I am clear that the State has the right in the regulation of its internal affairs to prescribe reasonable regulations and qualifications for persons practicing professions within her limits. The State prescribes such limitations upon the practice of law,

medicine, veterinary surgery, school teaching, etc., and I have

been unable to find any law which would justify the conclusion that its regulation of public accounting is unreasonable. Until

it is so found the regulations must be complied with and it is

my opinion that pending the compliance with these regulations the practice within the State is unlawful.

Very truly yours,

CLIFFORD wALKER,
Attorney-General.

237

Legality of municipal tax upon school teachers discussed.
September 3, 1915. Hon. James Harrison, Clerk,
lllontezuma, Ga. DEAR SIR: I have received your favor enclosing a copy of an Ordinance of the City of l\fontezuma fixing a business license on the occupation of teaching school and inquiring if such ordinance is constitutional. Replying thereto I beg to advise that the law permits the Attorney-General to give official opinions only on request of the Governor and ''on any question of law connected with the interests of the State." See Code Section 254. However, it is my custom to assist citizens and other officers of municipalities and counties whenever I am able to do so though, of course, any opinion could not b_e considered official. There can be no doubt of the right of a municipality to levy . or fix licenses upon occupations provided they are not: 1. Unreasonable and oppressive. 2. Contrary to public policy. Only the Courts can define and fix what would come under either head. Personally, I doubt the constitutionality of the ordinance, as the policy of the State is to encourage education and eliminate illiteracy. As in the case of a tax upon the business, say of preaching 'or acting as pastor of a church, I am inclined to believe that the Supreme Court would hold it unconstitutional as contrary to the public policy of the State. However, as indicated above the final determination of the question would have to be left to the Court of last resort as an opinion from the Attorney General even if officially rendered upon formal request from the Governor would not be binding upon any citizen who cared to test the matter in the courts.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
238

The office of County Treasurer is not now, nor ever was, a constitutional office.
Atlanta, Ga., September 10, 1915.
Mr. Jas. H. Boykin, Lincolnton, Ga.
DEAR SIR: I have your letter of recent date asking my opinion as to whether or not the office of County Treasurer is a constitutional office since the Constitution was amended so that the Legislature can abolish this office in any county. In reply, I will say that the answer to your question depends upon what you mean by a ''constitutional office.'' This term has b(len defined by the courts to mean ''those either created by or provided for in the Constitution.'' See People vs. Scheu, 69th N. Y. Supp. 597-599. Also, Foster vs. Jones, 79 Va. 642. By reference to the Constitution of this State it will be seen that the office of County Treasurer is neither created nor provided for therein. It was created by an Act of the Legislature. See Sections 564 et seq. of the Code of 1910. The amendment to the Constitution to which you refer was an amendment to Article 11, Section 3, Paragraph 1. This Section provides that ''Whatever tribunal, or offices, may hereafter be created by the General Assembly, for the transaction of county matters, shall be uniform throughout the State, and of the same name, jurisdiction, and remedies, etc.'' The amendment simply provided that the Legislature could abolish the office in any county without violating this uniformity provision of the Constitution. It was only to get around this uniformity provision that the amendment was necessary. The Legislature, before the. amendment, could not abolish the office in one county without abolishing it in all the counties of the State. It will be noted that Article 11, Section 2, Paragraph 1, of the Constitution provides that all county officers shall be elected by the people and shall hold their offices for four years (formerly two years), but the office of County Treasurer is not created by any provision of the Constitution. It was created by an Act of the Legislature as before stated. It is my opinion, therefore, that the office of County Treasurer is not now, nor ever was, a constitutional office.
This, of course, is not an official opinion as I am not permitted
!39

to furnish official opinions except at the request of the Governor However, I am glad to give you the above information.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
There is no general State law which would prohibit the Mayor or Councilman of a city from ;~.lso being a member of the School B-oard of such city at the same time.
September 14, 1915. Hon. G. W. Leveritt,
Vidalia, Ga. DEAR Srn: Replying to your favor of recent date, I have been unable to find any _law which would disqualify a Mayor or Councilman from service on the School Board. Of course you understand that the charter would fix this question finally. It being silent on the question, I can find no authority to hold them disqualified. I can see a possibility of !rouble on the one hand, and some advantage on the other. However, if your people desire a change, I would suggest an amendment to the charter of your city. If I can serve you further in this or any other matter, I will be delighted to have you call on me.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
Fees for Solicitor-General for drawing indictments, or presentments.
September 14, 1915. Hon. Joe M. Lang,
Calhoun, Ga. DEAR Sm: Replying to your favor of the lOth inst., it is my opinion that the law fixing a fee to the Solicitor-General for drawing indictments means just what it says. Any bill of indictment drawn by you at the instance of a prosecutor and either returned as a No Bill or ignored by the Grand Jury is
240

covered. I take it that the scheme of the law was to fix compensation for the drawing of all bills of indictment prepared in good faith.
In some circuits prosecutions are presented in some cases in the form of presentments. I am clear that these presentments when voted down, or ignored, should not be included in the insolvent cost list.
I trust I have made myself clear. Very truly yours,
CLIFFORD wALKER,
Attorney-General.
A defendant in a civil suit can acknowledge service and waive process before the filing of the suit
Atlanta, Ga., Sept. 15, 1915. Hon. J. B. R. Barrett, Clerk, Superior Court,
Cleveland, Ga. DEAR SIR: I have your letter of recent date, asking for an opinion as to whether or not a defendant in a civil suit can acknowledge service thereof before the declaration is filed, and whether or not he can waive process before the suit is filed. In reply, I will say that under Section 5561 of the Code of this
State of 1910 a defendant can either waive process or acknowledge service providing the same is done in writing and signed by the defendant or some one duly authorized. This Section does not say whether this can be done before the suit is filed or not. It certainly ca~ be done after the suit is filed. However, the Supreme Court has held in the case of Langford vs. Driver, 70th Ga. Rep., page 588 (4), that the waiver and acknowledgment can be made before the suit has been filed. This case has never been overruled so far as I can find, and is the law of the State. If this waiver and acknolwedgment is made in writing as required by the Section of the Code above cited before the suit is filed, I do not think the Clerk would be required or authorized to attach process to the declaration.
I hope I have given you the informaticm you desire. Very truly yours,
CLIFFORD wALKER,
Attorney-General.
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The office of Ordinar:y is a constitutional office. The offices of Clerk of the Court, Sheriff, Tax-Collector, Tax-Receiver and Superintendent of Schools are statutory offices.
September 17, 1915. lllr. James H. Boykin,
Lincolnton, Ga. DEAR SIR:. I have your letter of the 17th inst., in regard to the status of the office of County Treasurer. You ask whether or not the offices of Ordinary, Clerk of Court, Sheriff, TaxCollector, Tax-Receiver, and Superintendent of Schools are constitutional offices or statutory offices. The office of Ordinary is a constitutional office for the reason that it is provided for in Article 6, Section 6, Paragraphs 1, 2, and 3 of the Constitution of this State. The other offices mentioned are statutory offices. I think you are correct in saying that the amendment referred to permitting the General Assembly to abolish the office of County. Treasurer, did not change its status in any county where it still exists.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Motorcycles are subject to the special tax called for by the Act of August 13th, 1910.
September 18, 1915. Mr. 0. T. Harper,
Reidsville, Ga. DEAR SIR: I have your letter of the 15th inst., asking my opinion as to whether motorcycles are subject to the special ta~ of $5.00 to which automobiles are subject. The Act to which you refer is that approved August 13, 1910 (Acts 1910, page 90). This Act by its terms includes any vehicle or conveyance of like character, propelled by steam, gas, gasoline, electricity, or any power other than muscular power. It would seem, therefore, that motorcycles are included in the terms of this Act. By reference to the case of Bonds vs. the State (case No. 6372), decided June 3, 1915, by the Court of Appeals of this State,
.!42

and reported in Vol. 85, No. 10, page 629, of the Southeastern Reporter of date July 17, 1915, it will be found that this question was before the Court. In that case the Court of Appeals held that a motorcycle is included in the terms of the Act above stated. l\Iotorcycles, therefore, are subject to the special tax :provided for in the Act of 1910.
Very truly yours, CLIFFORD WALKER, Attorney-General.
A member of the Board of Tax Assessors is eligible to act in the capacity of a Grand Juror.
September 18, 1915. Mr. James Kelly,
Ellaville, Ga. DEAR SIR: I have your letter of the 17th instant. You ask my opinion as to whether or not a member of the Board of TaxAssessors of the county, who is also Chairman of said Board, is eligible to act in the capacity of a Grand Juror. In reply, I will say that the Act providing for the equalization of taxation passed during the year 1913 provides in regard to the Board of County Tax-Assessors that ":Members of said Board during the time they hold their office, and for one year thereafter, shall be ineligible to hold any .State, County or l\Iunicipal office.'' I do not think, howewr, that a Grand Juror is an officer within the meaning of the above quoted Section of the Act.
Very truly yours, CLIFFORD WALKER, Attorney-General.
A judge of the Superior Court is not authorized to take a plea of guilty in vacation.
September 18, 1915. Hon. R. C. Norman, Solicitor-General,
Washirigton, Ga. DEAR SIR: I have your letter of the 17th inst., asking whether
- or not at the last session of the Legislature a bill was passed
243

authorizing a Judge of the Superior Court when a defendant is in jail charged with a misdemeanor to take a plea of guilty 1n vacation. I have carefully looked over all the bills passed at the last session of the Legislature, but do not find a bill of the character referred to in your letter. I do find a bill authorizing the prosecuting officers when a defendant is in jail charged with a misdemeanor to take an accusation against him and to try him on this accusation, without an indictment of the Grand Jury, provided he waives such indictment.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
The State tax on cigarette dealers is $25.00 per year. The year be gins January 1st and ends December 31st.
September 18, 1915. Mr. J. A. Grant,
Alto, Ga. DEAR SIR: I have your letter of recent date, asking what is the State tax per year on cigarettes, and when the year begins and ends. In reply I will say that Section 929 of the Code of 1910 provides for a tax of $25.00 per year on every dealer in cigarettes or ~igarette paper or cigarette tobacco, for each place of business. The year referred to is the calendar year beginning January 1st, and ending Dece~ber 31st. Such dealers are required to pay this tax to the Tax-Collector before they are authorized to open up or carry on said business. See Sec. 978 of the Code of 1910.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
244

The Committee on State Reformatories was authorized to make the visits contemplated in the Resolution passed during the Session of 1915 by the House of Representatives and such expenses as are incurred can be lawfully paid by the Treasurer.
September 18, 1915: lllr. Luther Roberts,
Gainesville, Ga. DEAR Sm: I have your letter of recent date, in which you say that during the recent session of the Legislature a resolution was passed authorizing a Committee on State Reformatories to visit these institutions, and that this resolution was only a House resolution and was never acted upon by the Senate. You ask my opinion as to whether there is any legal obstruction in the way of your Committee now making the visit, as provided in the resolution. In reply I will say that the portion of the Appropriation Bill for 1913 and 14 referring to this matter, reads as follows:
"For compensation of the several committeemen of the Senate and House of Representatives visiting by appointment the various public institutions of the State, the sum of five thousand dollars, or so much thereof as may lie needed to be paid only upon itemized accounts, showing the actual necessary expenses paid in cash by each committeeman making such visits and in no case to exceed the actual amount expended."
As it appears that there is no corresponding Committee of the Senate, I am of the opinion that it was not necessary for the Senate to act on this resolution. From the resolution of the House the Committee would be visiting these institutions "by appointment." Certainly these State reformatories are public institutions of the State, and ought to be visited and inspected. Assuming that the resolution was duly passed, as you state in your letter, I am of the opinion that this Com~ mittee has authority to make the visit provided for in the resolution, and that the expenses thereof can be lawfully paid by the Treasurer.
Very truly yours, CLIFFORD wALKER, Attorney-General.
245

A member of the Senate of this State is eligible to hold the office of Mayor or Councilman of his city.
Atlanta, Ga., September 18, 1915.
Hon. A. B. Conger, Attorney-at-Law, Bainbridge, Ga.
DEAR Sm : Your letter of recent date in regard to our mutual friend, Jno. W. Callahan, was received. I am very sorry that in the rush of official business in this office your letter was misplaced. I thought it had been answered until I discovered to-day that it had been unintentionally overlooked. I am glad to give you now my opinion in the matter presented in your letter. It appears that Ron. Jno. W. Callahan, who is a member of the Senate from the Ninth District, is a candidate for the office of l\Iayor of your town, and the question has been raised whether or not he is eligible to hold the latter office.
Art. 3, Sec. 4, Par. 7 of the Constitution of this State, Section 6420 of the Code, relates to the qualifications of members of the General Assembly. It provides that no person holding an office or appointment "under this State, or the United States, or either of them, shall have a seat in either house." My construction of the decision of the Supreme Court in the case of Long vs. Rose, 132 Ga. 288, is that the office of l\Iayor of a municipality is not an office "under this State." Certainly he is not elected to this office by tlie General Assembly, nor appointed by the .Governor, as provided against in the latter part of the paragraph of the Constitution above cited. In my opinion, therefore, Mr. Callahan would not be rendered ineligible to hold his seat in the General Assembly on account of his election to the office of Mayor. At any rate, this would be a question for the Senate, as each house is judge of the qualifications of its members. For the reason last stated and for the reason that the Supreme Court in the case of McWilliams vs. Neal, 130 Ga. 733, holds that the paragraph of the Constitution above cited is "not a mere provision against holding of two offices at the same time,'' the real question in the case is whether or not Mr. Callahan was eligible for election to the office of mayor of a municipality under Section 258, Par. ,4 of the Code of 1910; that is to say, whether or not his election to the latter
246

office is void for the reason that he was ineligible to hold it. In- my opinion this question is settled by the ruling of the Supreme Court in the case of Neal vs. Long above cited. The holding there is that the expression ''any civil office in this State" as used in the Code Section mentioned above does not refer to the office of either l\Iayor or Councilman of a municipality. I am of the opinion, therefore, that l\Ir. Callahan is eligible to hold the office of 1\Iayor of your city.
You will, of course, understand that I can not give an official opinion except on the request of the Governor, but I am glad to give you my views on the case presented.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
Discussion as to whether a county has a right by a resolution of the Board of County Commissioners to make a note for a loan for more than one-fifth of one per cent. per annum on the assessed valuation of all the taxable property in the county, when this note is given to pay an indebtedness already incurred and in the form of County Orders.
September 18, 1915. Mr. J. A. Space, Cashier, Darien Bank,
Darien, Ga. DEAR SIR: I have your letter of recent date, asking my opinion as to whether a county has the right by a resolution of the Board of County Commissioners to make a note for a loan for more than one-fifth of one per cent. per annum on the assessed valuation of all the taxable property in the' county, when this note is given to pay an indebtedness already incurred and in the form o County Orders. In reply, I will say that the answer to this question depends upon the construction of Article 7, Paragraph 7, Section 1, of the Constitution of this State. This Section provides that no county shall incur any debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one-fifth of one per cent. of'the assessed value of taxable property therein, without the consent of' twothirds of the qualified voters at an election for that .purpose. The Section of the Constitution above referred to!was before

the Supreme Court for consideration in the case of Butts County et al., vs. Jackson Banking Company et al., 129 Ga. Repo;rts, page 801, and also in the case of City of Dawson vs. Waterworks Company, 106 Ga., page 713. In the former case the Supreme Court said:
"In all the cases considered by this court since the adoption of the Constitution of 1877, the borrowing of money by counties (not to supply a casual deficiency of revenue) has been treated as forbidden by the Constitution. :Mason v. Commissioners of DeKalb County, 104 Ga. 35; Hall v. Greene, 119 Ga. 253; Town of Wadley v. Lancaster, 124 Ga. 354. We, therefore, think that the contract of loan, in pursuance of which the notes to the defendant in error were executed, is violative of .Article 7, Section 7, Paragraph 1, of the Constitution, and that thl' lll'tes are not enforceable against the county."
It will thus be seen that in no case are the county authorities . in any county authorized to borrow money for county purposes except in the case of temporary loans to supply casual deficiencies of revenue, unless the loan has been authorized by twothirds of the qualified voters of the county. at an election for that purpose. The Commissioners, therefore, do not have the right or power, by resolution or otherwise, to bind the county by a note to pay an indebtedness already incurred, as such a debt would not be made as a temporary loan to supply casual deficiencies of revenue. In fact, I will say that it is very dangerous to make loans of money to counties for any purpose.
However, it was held in the case of Butts Co. vs. Jackson Banking Co~pany, and City of Dawson vs. Waterworks Co., cited above,- that counties are liable for money had and received by them and applied beneficially to their authorized objects, although the contract by which the money was obtained was unauthorized by law. In the Butts case it was said, ''The obligation to account for money received by the county and actually devoted to lawful purposes rests upon the _broad principle of common honesty, which will not permit the county to retain the benefit of money lawfully applied to its use and at its request, simply because the county lacked the power to borrow the money."
In both of the cases above cited the Supreme Court held that ,where a person had advanced money to the county, and this
248

money had been used by it to discharge a legally incurred liability for current expenses, such person could maintain an action against the county for money had and received, and could recover the same. In all these cases, however, it would be necessary for the person advancing the money to show that the same was actually applied to lawful county expeu"ses; or in the payment of obligations legally incurred. by the county. In a case where the person advancing the money simply purchased outstanding county orders, the Treasurer of the county could be forced to honor these orders or script, provided it appeared that the orders were drawn in payment of obligations of the county legally and properly incurred. Unless these orders were drawn as above stated, their payment could not be enforced. And if money advanced to the county should not be beneficially applied to the payment of the obligations lawfully authorized, the same could not be recovered from the county.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Property belonging to an estate which is sold legally for the purpose of paying debts of the estate, where the proceeds of such sale are applied to the payment of debts of the estate, would not be subject to the Inheritance Tax Laws of this State.
:~
September 21, 1915. Hon. W. D. Porter, Tax-Collector,
Cochran, Ga. DEAR Srn: I have your letter of the 16th inst., asking for a construction of the Inheritance Tax Law. You wish to know whether the law requires an estate to pay Inheritance Tax on the gross appraisement thereof or on the net value after the indebtedness has been paid. This law has not been construed by the Supreme Court and, of course, I can not say what view it will take of the question presented. However, I will give you my view on the subject. Section 1 .of the Inheritance Tax Act, approved August 19, 1913 (Acts 1913, page 91), provides that all property within the jurisdiction of this State which shall pass on the death of the decedent, by will or by the law regulating
249

descents and. distributions, or by deed, grant, or gift, made or intenaed to take effect in possession or enjoyment after the death of the grantor or donor, to any person or persons in trust or otherwise, shall be subject to taxes. I am of the opinion that this Section of the Act means that it is-only "property which shall pass on the de~th of the decedent by will or otherwise, intended to take effect in possession or enjoyment, after the death of the grantor or donor.'' I do not think that property belonging to an estate which is sold legally for the purpose of paying debts of the estate where the proceeds of such sale are applied to the payment of debts of the estate, would be subject to this tax. However, property of the estate which does pass by will or otherwise as above indicated to any person or persons after the death of the grantor or donor would be subject to this tax although the property might be encumbered.

I find upon investigation that the Georgia Inheritance Tax

Law is similar in most respects to the Inheritance Tax Laws of

other States. The decisions of their courts, therefore, would be

applicable in construing our law. In Vol. 37 of Cyc., page 1553,

it is said:



"An inheritance or legacy tax is not a tax on the property affected, real or personal, but on the privilege of succeeding to the inheritance or of becoming a beneficiary under the will, the privilege of acquiring property by will or by succession being a right created and regulated by the State. Hence the power and right of the Legislature to impose burdens in the form of taxes on this privilege is 'not restricted by the Constitutional provisions relating to the taxation of property as such."

The doctrine announced above is sustained by the Courts of Colorado, Connecticut, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, l\fichigan, Montana, New Jersey, New York, Utah, Virginia, Wisconsin, and the decisions of the Supreme Court of the United States.
From the above authorities and the wording of the Act, I do not see how property of the estate could be subject to this tax unless it actually passed by will, the law of descents and distributions or otherwise to some person or persons, after the death of the grantor or donor. It is the privilege of succeeding to an inheritance or of becoming the beneficiary under a will, or of

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acquiring property by the law of succession that is intended to be taxed by the State.
I hope I have given you the information desired. Yours very truly,
CLIFFORD WAr.iER,
Attorney-General.
The authorities in charge of the State Sanitarium can not be forced to receive as an inmate of said institution a lunatic if it is physically impossible for them to so receive and take care of such lunatic on account of the lack of room or of money.
Atlanta, Ga., September 22, 1915. Mr. Ira Leggett, Clerk S.-C.,
Baxley, Ga. DEAR SIR: I have your letter of recent date in regard to the insane negro who has been refused admittance to the Georgia State Sanitarium. An answer has been delayed a little on account of pressing official business in this office and for the reason that for a week I was in North Georgia investigating the conditions relating to damage caused by the copper companies. In your letter you state that this old negro has been properly adjudged a lunatic and committed to the State Sanitarium and that the authorities refuse to admit him on the ground that for lack of room and appropriation they are unable at present to accept him. You ask whether or not the authorities of the Sanitarium have the right to refuse to accept him. You do not state in your letter whether or not this old darkey is a harmless lunatic. If he is, under Sections 1578 and 1597 of the Civil Code of this State, the authorities would certainly have the right to refuse to accept him. It would then become the duty of the county to provide for him on the pauper farm, or elsewhere, as determined by the county authorities. If the negro is dangerous to the public, it seems that under Sections 1574 and 1576 of the Code, it would be the duty of the authorities of the Sanitarium to admit him. However, if, for lack of room or money, they are unable to care for him and accept him into the institution, they certainly could not be forced to do so when it is physically impossible. Section 1599 of the Code
251

provides "if such a contingency should happen, it must be reported to the Governor without delay, who shall communicate the fact to the General Assembly." Theonly way to bring the matter before the Courts would be to bring a mandamus against the Superintendent or Trustees of the State Sanitarium to force them to receive, and care for the negro. This remedy would fail if the Superintendent or Trustees could show that they could not receive or care for the negro for lack of room or money. The only other remedy is to keep the negro in jail or care for him on the pauper farm until such time as the authorities of the State Sanitarium are able to receive him.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
1. The General Assembly has power to provide that no county order be issued without the consent of the County Treasurer.
2. Qu_eare: Is County Treasurer a Constitutional Officer?
Atlanta, Ga., September 24, 1915. Mr. W. W. Davis, Treasurer,
Newton, Ga. DEAR SIR: I have your letter of the 21st inst. in regard to the recent Act of the General Assembly. It appears that at the last session of the Legislature a bill was passed abolishing the Board of Commissioners of Baker County. Also a bill was passed creating the office of County Commissioner and making the Ordinary ex officio the Commissioner. The law also provides that no county order is to be issued without the consent of the Treasurer of the County. ,You ask whether or not the provision in the law imposing the above mentioned duty on the Treasurer is constitutional and whether or not it can be enforced. In reply I will say that you have asked a very difficult question and one that has not been settled by the Supreme Court. The answer probably depends upon whether or not under the Constitution of 1877, the office of Treasurer is a constitutional office. Under the Constitution of 1868 this office was a constitutional office. See Morris vs. Glover, 121 Ga. Rep., page 751. Also Massenburg vs. Bibb County, 96 Ga. Rep., page 614. However, under Sections 6599 and 6600 of the Code of
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1910 (Constitution of 1877 as amended), I am inclined to the opinion that the Treasurer is not a constitutional officer. "Where an office is created by statute, it may, in the absence pf constitu-
tional prohibitions, be entirely abolished, * * * or its duties
may be diminished or increased at the will of the Legislature at any time, even though done during the term for which the then incumbent was elected or appointed." l\Iechem 's Public - Officers and Offices. See also the case of Collins vs. Russell, 107 Ga. Rep., page 426 (1). It will be seen from the authorities above cited that a public office (not constitutional) is a creature of the Legislature, that the incumbent has no prpperty right therein, and that the office is entirely subject to legislative control.
Even if the office of Treasurer is a constitutional office, I am inclined to think that the Legislature could impose the additional duties required under the act mentioned. 'fhe duties of the office of County Treasurer are not prescribed in the Constitution, but by various acts of the Legislature. The additional duties imposed in this act are only incidents of the office and do not materially change the office. See Throop on Public Officers, page 19, Section 19'.
As stated above, there are some doubts involved in the question you present, and it will probably take a decision of the Supreme Court to settle it, but I give as my opinion the views above expresse<i.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Constitutionality of the Act providing for local school system for the town of East Lake, DeKalb County, Georgia, discussed.
September 25, 1915. Mr. R. E. Carroll, Supt. of Schools, DeKalb County,
Decatur, Ga. DEAR SIR: I have your letter of recent date relative to the matter of school tax for the Town of East Lake in your county. It appears that DeKalb County as a whole has provided for local taxation for the support of schools and that the Town of East Lake is situated in one of the school districts of the county
253

but had no local school system of its own until the passage of an Act providing for the same at the last session of the Legis-

lature. This Act passed in August of this year provided for

such a system and that from the time of its passage the town should have the authority to levy a tax for the support of its schools. The question is whether the County or the town has

the authority to collect the school taxes forthe year 1915, or at least the taxes for the Fall Term of the Schools in the Town of East Lake. I understand from your letter that at the begi.nning of the year 1915 the Board of Education of your county

made provision for maintaining the schools of the county for

the year and that the district in which the town was situated was included and that the district school was actually main-

tained in that district and town during the Spring Term of the year 1915. It further appears from your letter that the Board of Education is dependent upon the taxes to be collected

this Fall from this_ district to defray the expenses of supporting

the schools in the district for the Spring Term, 1915, at least insofar as such expenses are defray~d by local taxation. Under the law the fiscal year runs from January to January. It appears that contracts have been made and schools maintained and expenses incurred by the county authorities upon the faith of the power in the county to collect the local school tax from all the districts in the county to meet these contracts and expenses. It also appears that the apportionment of the State school fund has been made without regard to the local system

of schools in the Town of East Lake, and that this was done

before the passage of the Act creating the school system for the said town. Under the facts above stated, it appears to me

that the Act under consideration is retroactive insofar as it

affects the local school tax of your county for the year 1915, and that it tends to impair the obligations of contracts. For this reason I am inclined to think that so far as the taxes for

1915 are concerned, the Act is unconstitutional and unenforceable. You will understand that this is not an official opinion, as I can not under the law furnish an official opinion

except on. a matter where the State is interested and upon the

request of the Governor.

.

Very truly yours,

CLIFFORD WALKER,
Attorney-General.
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The Trustees of the Georgia State Sanitarium have no authority to fix the salary of the Superintendent and Principal Physician of said institution.
~\:.~~~-~-:;:~~-~~=:~.:~J~!.:.-r~~~>\~~~~
September 28, 1915. Hun. H. H. Dean, llfe11tber Board of Trustees, State ~anitarittm,
Gainesville, Ga. DEAR SIR: I have your letter of the 25th inst., requesting an opinion as to the authority of the Trustees of the State Sanitarium to fix the salary of the Superintendent and Principal Physician of this institution. I note what you say as to a conflict between Sections 320 and 1573 of the Code as to this matter. Also note what you say in reference to the valuable services now being rendered by Doctor Jones as the Superintendent and Principal Physician of the Sanitarium, and your desire to retain him in this position. You say that the salary of $2,500.00 is inadequate and that he has been offered a larger salary in other institutions. I am sure you are right in wishing to keep Dr. Jones in this position, and have sought to find some authority to authorize the Trustees to increase his salary. I have made considerable investigations to ascertain the origin of Sections 320 and 1573 of the Code. If Section 1573 should appear to be the last expression of the Legislative will on the subject matter thereof, it might be construed to supersede Section 320 and authorize the Trustees of the institution to fix the salary of the Superintendent and Principal Physician. I find that the Georgia State Sanitarium, formerly known as the Lunatic Asylum, was established by an Act of the Legislature assented to December 10, 1841 (Acts 1841, page 153). This Act in Section 4 provides: ''And the Salaries of all the officers of the Asylum shall be determined by the Trustees, subject to the approval of the Governor.'' This Act makes no provision further than that stated as to the salary of the Superintendent. The Act of 1841 was amended by an Act approved February 21, 1850 (Cobb's Digest, page 732). This latter Act provided that the Superintendent and Principal Physician should receive for his services a salary of $1,500.00 per annum. The Act further provides in Section 4: ''The other officers of the institution shall consist of an Assistant Physician, a Treasurer, etc., etc., whose salaries should be fixed by the Board of Trustees." It
255

further provided in the same Section that the Trustees shall, "In their by-laws, determine the salaries and tenure of the office of their officers.''
The next legislation I find on this subject is contained in the Code of 1891, Section 1287, in which the Trustees have authority "to appoint all the officers, point out their duties, and fix their salaries." Section 1576 of the same Code provides "that the salary of the Superintendent and Principal Physician of the Lunatic Asylum shall be $2,500.00, and the Assistant Physician . $1,250.00." Just when the Act codified in Section 1576 was passed, I have not been able to find, but it appears in the Code of 1861, as stated above.
The same provisions of the Code of 1861 as to the authority of the Trustees and the salary of the Superintendent are found in Sections 1638 and 1368.
The same provisions of the Code of 1861 as to the authority of the Trustees and the salary of the Superintendent are found in Sections 1344 and 1644 of the Code of 1882.
The same provisions of the Code of 1861 are found in Sections 285 and 1411 of the Code of 1895. The same provisions as stated above are found in the same form in the Code of 1910 as Sections 320 and 1753.
It will be noted that in all of the Codes above mentioned the provision fixing the salary of the Superintendent and Principal Physician is cortained in Sections entitled: ''Salaries and fees of officers" and not in the chapters relating generally to the State Sanitarium. It seems therefore that since the Act of 1850 the salary of the Superintendent and Principal Physician has been treated separately by the Legislature from the other provisions relating to salaries of the Officers of the Sanitarium. Why this is true I, of course, do not know, but such appears to be the fact. Both Sections of the Code, to wit: 320 and 1573, must therefore be considered of force, and it is necessary to construe them in such way as to reconcile the apparent conflict and give force and effect to both of them. This can only be done by construing Section 1573 to mean that it was the intention of the Legislature to provide that the Trustees were to fix all the salaries of the officers of the Institution except that of the Superintendent and Principal Physician, and that his salary was to be fixed by the Legislature as provided in Section 320 of the Code.
256

For some reason, the Legislature, since the establishment of the Sanitarium, has kept the provisions of law fixing the salary of the Superintendent and those of the other officers separate and apart. I am, therefore, of the opinion that th.e Trustees, under the law, have no authority to increase the salary of the Superintendent and Principal Physician to more than that provided by Section 320. It seems that this is a matter which ought to be brought to the attention of the General Assembly.
Yours very truly,
CLIFFORD wALKER,
Attorney-General.
The General Assembly has power to abolish an office that is not a constitutional office.
Atlanta, Ga., October 1, 1915. Mr. G. W. McCall, Treasurer,
Jesup, Ga. DEAR Bm : Your lette'r of the 24th of September received. It appears from your letter that at the last general election you were elected County Treasurer of Wayne County, and that your term of-office expires on December 31, 19'16. It further appears that at the 1915 session of the General Assembly an Act was passed abolishing the office of County Treasurer in Wayne County from and after January 1st, 1916. You wish to know. whether or not the Act abolishing the office at the time stated and legislating you out of office is valid. You will recall that by an Act approved August 14, 1914, a Constitutional Amendment was proposed, giving the General Assembly authority to abolish the office of County Treasurer in any county. This amendment was adopted by the people at the general election of 1914. Since the adoption of this amendment the Legislature has the power to abolish the office of County Treasurer. Whether or not prior to the adoption of this amendment the office of County Treasurer was a Constitutional office, since the adoption of the amendment the Legislature unquestionably has control over it. In the case of Gray vs. McLendon, 134 Ga., page 249, the Supreme Court says:
"If the office be created by Legislative enactment, the Legislature may abolish it; and if it be created by municipal authority,
257

that same authority may abolish it." ln the case of Wessolowski v. Gilbert, 51 Ga., 224, 227, it was said: "If the office be the creation of the Legislature, it may be abolished by Legislation." In the case of Dallis v. Griffin, 117 Ga. 408 (43 S. E. 738), it was ruled: "No man has a vested right to an office created by the Legislature. That body may 'legislate him out' of such office at its will;" and on page 410 it was said: "It is well-settled law that no man has a vested right to an office created by the Legislature. That body may abolish or modify an office which it has established, may shorten or lengthen the term prescribed for officer who is to hold it, or may decrease or increase the salary attached thereto. So firmly fixed is this principle that extended discussion of it is unnecessary." (Citing many cases.)

It appears that the Constitutional amendment was adopted

on the very day and in the same election at which you were

elected to the office of Treasurer. Of course, if the office to

which you were elected is a Constitutional office you could not

be removed therefrom by legislation, but since from the very

time your election took place the office has been under the con-

trol of the General Assembly it is my opinion that the Act abolishing the office on January 1, 1916, is valid and binding. It

does seem somewhat unjust to you to deprive you of part of

your term of office, and there may be some doubt as to the

validity of the Act, but I am inclined to think the courts would

sustain it.

- You will understand that this is not an official opinion, as I

. can not furnish an official opinion under the law, except on the

request of the Governor, but I am glad to give you my views of

the law involved.

Very truly yours,

CLIFFORD WALKER,
Attorney-General.

When an Ordinary resigns, to take effect at a later date, the Clerk of the Superior Court cannot order an election to fill the unexpired term until after. the date such resignation takes effect.
Atlanta, Ga., Oct. 1, 1915. Flon. J.P. Chambers, Clerk Superior Court,
Dawsonville, Ga. DEAR Sm: Your letter of recent date stating that the Ordinary of Dawson County has resigned his office to take effect on the 31st day of December, 1915, and asking my opinion as to
258

the method of filling the vacancy has been received. You request my opinion as to whether or not you, as Clerk of the Superior Court of said county, can order an election to fill the vacancy during the month of December, 1915, so that the elec-' tion can be had during this month and the persoh elected be ready to assume the duties of the office on the first of January, 1916. Your authority to call this election is found in Section 4782 of the Code of 1910. This Section provides that when a vacancy occurs in the office of Ordinary, it is the duty of the Clerk of the Superior Court, "on the fact of said vacancy being made known to him,'' to order an election to fill the vacancy. It is only when the vacancy occurs and is made known to the Clerk that he can order the election. There can be no vacancy in the office until the resignation takes effect. Therefore, I do not think you are authorized to order or advertise this election until the 1st of January, 19'16, since the Ordinary will act and receive compensation until his successor is qualified. He might resign December lst or lOth.
Yours very truly,
CLIFFORD WALKER,
' Attorney-General.
Sections relating to Tax-Receiver's commissions.
October 1, 1915. Mr. Fred B. Heaton, Tax-Receiver, Hart County,
Bowersville, Ga. DEAR Sm: I have your letter of September 28th in which you ask whether or not the Tax-Receiver is entitled to receive commissions on county taxes. Your question is answered by Sections 519 and 1202 and 1234 and 1235 (3) of the Code of 1910. These Sections ,provide that the Tax-Collector's commissions are the same on State and county taxes. They further provide that the county shall. pay the Tax Receiver one-half of what the Collector gets for collecting the county tax. They further provide the per cent. allowed the Receiver and Collector as compensation for their services. I hope the above gives you the information you desire.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
259

A person giving people medical treatment with the medicine he makes from herbs that he gathers out of the woods must comply with the laws of this State regarding the practice of medicine.

Mr. Ellis Bradley, Columbus, Ga.

October 4, 1915.

DEAR SIR: I have your letter of September 26, asking

whether a person is permitted under the law to give people

medical treatment with the medicin!J which he makes from herbs that he gathers out of the woods. In reply, I will say that

Section 462 of the Criminal Code of this State provides as

follows: ''Any person who shall fail to register, or who shall

practice medicine or surgery, in violation of the provisions of tke Civil Code shall be guilty of a misdemeanor."

Section 1683 of the Civil Code provides as follows: " 'Practice Medicine' defined. For the purpose of this chapter,

the words 'Practice l\Iedicine' shall mean, to suggest, recom-

mend, prescribe or direct, for the use of any person, any drug, medicine, appliance, apparatus, or other agency, whether ma-

terial or not material, for the cure, relief or palliation of any

ailment or disease of the mind or body, or for the cure or relief

of any wound, fracture, or other bodily injury or defor:mlcy,

after having received or with the intent of receiving therefor, either directly or indirectly, any bonus, gift, or compensation ,.
Section 168~ of the Civil Code provides as follows:

"WHO J\IAY PRACTICE. No person shall practice medicine within this State, unless he has been heretofore legally authorized so to do, or shall be hereafter authorized so to do by a diploma from an incorporated medical college, medical school, or university, or has, after attending one or more full terms at a regularly chartered medical college, been in active practice ,of medicine since the year 1866, or who was by law . authorized to practice medicine in 1866, or shall have been licensed by the medical board."

It appears from the statements in your letter that the giving of medical treatment as stated therein, would be "practicing

medicine" under the above quoted Sections of the Code, and a

violation of the law, unless you were authorized to practice medi-

cine under the laws of this State. Very truly yours, CLIFFORD wALKER,

Attorney-General.
260

Otherwise qualified, a person is not disqualified to vote pending his trial for a crime involving moral turpitude.
January 24, 1916. Mr. P. 0. Herrington, Esq.,
Mount Vernon, Ga. DEAR Sm: Replying to your favor of recent date, I am of the opinion that a person is qualified to vote pending his .trial for a crime involving moral turpitude. A man is considered innocent until he is proven guilty, and he can not be said to be finally adjudged to be guilty until the cas~ is disposed of. I regret that this can not be taken as an official opinion as the law allows me to render such opinion only on request of the Governor, but I am glad. to give you the benefit of my' idea on the subject.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
No State tax is imposed on professional phrenologists.
Atlanta, Ga., October 5, 1915. Mr. J. A. Hunt, Attorney-at-Law,
Atlanta, Ga. DEAR Srn: I have your letter of the 4th inst., requesting my opinion as to whether or not there is any State tax imposed on professional phrenologists doing business in this State. I know of no State tax on this business. There is a tax on the business of fortune telling, but as I understand this latter is not embraced in phrenology. Phrenology, as I understand, is the reading of the mental characteristics and powers as indicated by developments of the brain upward, forward, and backward from the medulla oblongata. For these reasons I do not think there is any State tax on a professional phrenologist. If, however, he is also a fortune teller and is carrying on this business, he would be liable for the tax imposed by Section 948 of the Civil Code of this State. I am also assuming that he does not treat people for any disease of the mind or body. If he does treat people for diseases of the mind or body, he would be subject to the tax provided in Section 960 of the Code of this State. You will understand that this is not an official opinion, as,
261

under the law, I am not permitted to furnish an official opinion except on the request of the Governor.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.

A resident of a municipality operating a school system not directly under the supervision of the County School Superintendent is eligible for said office.

October 5, 1915. Hon. Roland Bower,
Bainbridge, Ga. DEAR SIR: I have received your favor of 2nd instant in which you say that the question has been raised in your county whether .or not a person residing in and being a citizen of the municipality of Bainbridge is thereby disqualified to hold the position of Superintendent of County Schools, it being granted that the schools of the City of Bainbridge are not directly under the supervision of said Superintendent, but receives its quota of the State funds directly from the State Treasurer. In reply thereto I beg to say that the only reference to the citizenship of the Superintendent of County Schools is contained in Section 1491 of the Code wherein it is provided:

"The Commissioner (now Superintendent) must be a citizen of the county for which he is elected."

Sections 1489-1493 as well as Acts of 1911, pages 165, 102,

and 103, refer to the duties and qualifications of County Super-

intendents of Schools, but nowhere does it appear that the resi-

dents of any municipality or school district under any conditions

are disqualified. To the contrary, this new and amendatory

Act of 1911 directly and expressly provides what the qualifica-

tions as to residence shall be and defines them in the following

language-:



"and be a resident of the county in which he offers for election."
The question evidently arose in confusing the qualifications of a County Superintendent of Schools with those of members of the Board of Education of a county. As to this la_tter office Code Section 1479 provides, among other things, as follows:

"provided further, that whenever there is a portion of any_ county

262

a 1ocai schooi system having a board of education of its own and receiving its pro rata of the public school fund directly from the State School Commissioner and having no dealings whatever with the County Board of Education, then the members of the County Board of Education of such county shall be- selected from that portion of the county not embraced within the territory covered by such local system."'
It will be noted that the Code here limits the qualifications of the members of the County Board of Education and not those of a County Superintendent of Schools.
As stated, I have made a careful examination of the. law and find no such inhibition applying to a resident of any portion of a county. I, therefore, conclude that a person residing within and being a citizen of the municipality of Bainbridge is clearly qualified to hold the position of Superintendent of County Schools so far as l1is residence is concerned.
Yours very truly, CLIFFORD WALKER, Attorney-General.
A person is not eligible for the office of Chairman of the County Board of Education and Chairman of the Board of Trustees of a local school district at the same time.
October 8, 1915. Mr. M. Edwards,
Guyton, Ga. DEAR SIR: I have your letter of the 3d inst. requesting an opinion as to whether or not the same person is eligible to hold the office of chairman of the County Board of Education and at the same time hold the office of Chairman of the Board of Trustees of local school district in the same county. Under Section 1479 of the Code, if this local school system ,receives its pro rata share of the public school fund directly _from the State School Commissioner and has no dealings whatever with the County Board, the District Chairman would be ineligible to hold a position on the County Board. If this District School Board acts under the County Board, and not directly with the State Commissioner, a different question arises. To answer this question would involve a construction of Section 258 of the Code.
263

"The following persons are held and deemed ineligible to hold any civil office in this State, and the existence of either of the following states of facts is a sufficient reason for vacating any office held by such person, but tp.e aci;a of such person, while hold ing a commission, are 'valid as the acts of an officer de facto, viz:
4. HOLDING OTHER OFFICES. Persons holding any office of profit or trust under the Government of the United States (other than that of postmaster), or either of the several States, or of any foreign State."

Whether or not under the above quoted Section of the Code,

athe same person could hold both offices under consideration is very doubtful question. There is no decision of the Supreme

Court directly .in point, and no decision that throws much light

upon the question. The Supreme Court in the case of Coleman

v. Glenn, 103 Ga. 458, held that the members of a County

Board of Education are public officers. In Mechem on Public

Officers, page 19, Section 55, it is said: "School directors,

treasurers and trustees are public officers.'' From this decision

I conclude that both the members of the District Board and also

the members of the County Board are public officers under the

law. While there is considerable doubt on the question, I am

inclined to think that the Section of the Code above quoted

applies and that the same p,erson is not eligible to hold both

offices. Each of them, it seems to me, are civil offices in this

State, and each of them are offices of trust, and may be offices

of profit.

Very truly yours,

CLIFFORD wALKER,

Attorney-General.

Constitutional homestead must be advertised. Statutory homestead does not have to be advertised. (Sections 3416-3417.)
October 8, 1915. Hon. William Redd, Jr., Ordinary,
Colttmbus, Ga. DEAR SIR: I have your letter of recent date asking my opinion as to whether or not in setting apart an ''exemption'' under Section 3417 of the Code it is necessary to publish notice of the same in a gazette. In reply, I will say that Section 3417 of the Code provides for setting aside the statutory homestead. The
264

constitutional homestead of $1,600.00 must be advertised, but

the statutory homestead provided for in Sections 3416 et seq. of the Code does not have to be advertised in a gazette. The Sec-

tion itself declares "it shall not be necessary to publish the same

in a gazette. "

Very truly yours,

CLIFFORD WALKER,
Attorney-General.

A person has the right to sell pistol cartridges by paying the State license tax of $25.00. Whether the city or town can also tax such business would depend upon the charter of such city or town. If the charter of the city or town authorizes such license tax to be levied, the tax can be collected, if reasonable.
October 8, 1915. The 0. S. Bryant Oo.,
Bartow, Ga. DEAR SIR: I have your letter of October 5, asking whethe! or not you have the right to sell pistol cartridges by paying only a State license, and whether or not the town of Bartow, which is incorporated, has the right to levy a business tax on this business. In reply I will say that from Section 961 of the Code, an occupation tax of $25.00 is levied by the State upon this business. As to whether or not the town of Bartow can also levy an occupation tax on this business would depend upon the charter of the town. As I do not have the charter of the town before me, of course I could not answer this question. However, I will say that the town would not have the right to collect such a tax unless the power to -do so has been delegated to it itt its charter in plain and unmistakable terms. See the case of Albany Bottling Co..v. Watson, 103 Ga., p. 503. If the charter of your town is broad enough to convey such power to the town, then under the ruling of the Supreme Court of this State the town could levy an occupation tax on this business provided the tax was a reasonable one. See Mayor and Aldermen of Savannah vs. Cooper, 131 Ga. 670. If the terms of the charter are broad enough to cover the tax mentioned, it is very likely that the tax would be upheld by the (Jo~rt~.
265

You will understand that this is not an official opinion, as

I am not permitted to give an official opinion except on re-

quest of the Governor, but I am glad to give you my personal

views on the matter.



Very truly yours,

CLIFFORD WALKER,

Attorney-General.

Fraudulent Trade-Marks.
October 8, 1915. Empire State Chemical Co.,
Athens, Ga. GENTLEMEN: I have your letter of recent date with reference to the trade-mark claimed by you to have been registered under the laws of Georgia. It also appears that this same trade~mark has been registered under the laws of the United States, and that the person so registering the same under the laws of the United States is seeking to prevent its use by you. You ask whether this can be done. In reply will say that it is impossible to answer this question, for the reasun that it possibly involves a lawsuit with many matters of fact to be decided by the court or jury, and I, of course, not knowing what the history and facts surrounding the use of this trade-mark by both parties are, could not possibly say what the court might find the facts to be. The laws of the United States, of course, take precedence over the State laws on the subject of patents and trade-marks. The prior use of a trade-mark would be a large factor ip the case. Very likely the matter of registration would not enter very largely into the determination of the case. The case would most probably be 9.ecided on the principle of "unfair competition.'' This is set out in Section 4632 of the Code, which reads as follows:
"FRAUDULENT TRADE-MARKS, etc. Any attempt to .encroach upon the business of a trader, or other person, by the use of similar trade-marks, names, or devices, with the intention of deceiving and misleading the public, is a fraud for which equity grants relief."
Whether or not either party is attempting to encroach upon
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the business of the other, by the use of a similar trade-mark, and if so, which is the guilty party, are matters of fact depending very largely upon the history of the trade-mark and the circumstances surrounding its use. The court would enjoin the party seeking to deceive or mislead the public by the use of a trade-mark similar to that of the other party.
For the reasons above stated, you can clearly see that I could not predict what the findings of the court would be on this question.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
County Commissioners are not authorized by law to pay the Ordi nary for calling, passing upon and declaring the results of the various school election of the county under the McMichael Jaw.
October 8, 1915. Mr. William D. Buie,
Nashville, Ga. DEAR SIR: I have your letter of the 5th inst., asking my opinion as to whether or not the County Commissioners of your county have authority to pay the Ordinary for calling, passing upon and declaring the resu~ts of the various school elections of the county under the McMichael law. It appears that there is no express authority for the payment of this claim. Section 82 (13) provides for the payment of managers and clerks. Section 513 of the Code provides for the purposes for which county taxes may be assessed. No claim against the county can be paid for any other purpose than that for which taxes may be levied. See case of Albany Bottling Co. v. Watson, 103 Ga., p. 502. Also Houston County v. Kersh & Wynne, 82 Ga., p. 252. In looking over the subsections one to nine of Paragraph 513, I do not find any authority which seems broad enough to cover the expenses under consideration. Unless it is the last subsection, to wit, subsection 9, which reads as follows: ''To pay any other lawful charge against the county." . From the decisions cited above,. I do not think these sections would authorize the payment of the charges. No money can
267

be drawn from a county unless there is express authority for paying the same, or the authority is necessarily implied from other powers expressly granted. This implication of authority relates to the payment of the money for the services, and not as to the services themselves. See the cases above cited. While it seems that the Ordinary in this case ought in justice to be paid for his services, yet when asked for a strictly legal opinion as to the authority of the county to pay for ~he same, I must conclude that I do not think under the law the county i_s author. ized to pay the chargeil mentioned in your letter.
You will understand that this is not an official opinion, as under the law I can not furnish an official opinion except on request of the Governor, but I am glad to give you my views on the subject.
Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
Road laws of Georgia.
October 8, 1915. Hon. W. B. James,
Oak Hill, Ga. DEAR Sm: I have your favor of the 4th instant. You wish a copy of the road laws of Georgia. lam very sorry to say that in this particular instance I am unable to serve you for the reason that the road laws of Georgia are not published except in the Code of the State. Some ten or fifteen years ago Col. Goetchius, of Columbus, Ga., printed road laws of the State, and some five or six years ago they were published by Marshall Bruce & Co., of Nashville, Tenn. These publications are now out of print. and there have been so many amendments to the road laws that they would be of no value at the present time. You state in your letter that your county is operating under the old system. The only place to get this law is in the Code of 1910, which you can find in the office of the Ordinary of your county. You will find the law on this subject embraced in Sections 647 to 693 inclusive, and in Sections 724 to 757 inclusive. You will find the alternative road law in Sections 694 to 704 Miclusive, and the four days law in Sections 705 to 723 inclusive.
268

If you have any question relating to the road laws which you wish to have answered, if you will write me I will gladly give you my views.
Very truly yours, CLIFFORD w A~KER,
Attorney~General.
Patients who leave their bills unpaid at a sanatorium, are not guilty of violating the criminal laws of this State passed for the protection of hotel keepers, etc. Sanatorium is not a hotel, inn, tavern, etc.
October 8, 1915. Davis-Fischer Sanatorium,
Atlanta, Ga. GENTLEMEN: Your letter addressed to Hon. Warren Gnce, former Attorney-General of Georgia, has been received. You ask for an opinion as to whether or not patients who leave their bills at the Sanatorium unpaid, and who fail and refuse to pay them, are subject to prosecut,ion for a violation of the criminal laws of the State. Replying thereto, I beg to say that the law allows the Attorney-General to furnish official opinions only on request of the Governor. However, it will be my pleasure to indicate to you what my personal .views on the question suggested are. Under a recent Act of the Legislature, codified as Section 718 of Park's new Code of Georgia, a person who obtains food, lodging or other accommodation at any hotel, inn, boarding house or lodging house in the State with intent to defraud the owner or keeper of the same, is, under certain conditions, guilty of misdemeanor. However, the criminal law .is to be strictly construed, and I do not think this law would appy to a sanatorium. An ''inn'' is defined in law as including ''All taverns, hotels, and houses of public general entertainment for guests.'' I do not think that a sanatorium could be called ''a house for public general entertainment for guests." For the reasons above stated, I am of the opinion that a sanatorium is not embraced within the terms of the Act mentioned.
Very truly yours, CLIFFORD wALKER, Attorney-General.
269

A municipality has the legal right to prescribe reasonable regulations for the operations of automobiles.
October 18, 1915. Dr. W. R. Brigham,
Dublin, Ga. DEAR SIR: Your favor of October 6, addressed to my predecessor, reached me only to-day. Replying, I beg to say that it is within the law authorizing police regulation of a municipality to prescribe reasonable regulations for the operations of automobiles. As indicated, these regulations must be reasonab!.J. If, in the judgment of the higher courts, the ordinance is unreasonable and unjust it can be set aside. It occurs to me that the facts stateu by you constitute no ground of attack on the law, but make powerful evidence which should affect the discretion of the trial under the law. That which is unlawful under ordinary circumstances becomes lawful under extraordinary circumstances. In a case of life and death a greater speed would be permitted than in ordinary circumstances. However. all this is directed to the sound discretion of the Court or jury. These are my personal views. Indeed the law does not permit this department to render official opinions except on request of the Governor.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Law governing the subject of reckless driving of automobiles.
October 18, 1915. Rev. Mr. William S. Branham,
Calhoun, Ga. DEAR SIR: Replying to your favor of the 13th inst., the Acts of the Legislature of 1910, page 90, contain the general statute law on the subject of reckless driving of automobiles. You can find these also in Park's new Code. The City Ordi~ nances in the hand of the City Clerk are subject to your inspection as a citizen and taxpayer. These laws simply protect you from the excesses suggested, and it is the duty of every officer of the law to enforce these laws. When some innocent child
270

is killed, there will be a great revulsion of opinion, but alas! it

will be too late. Personally I deem the man whose efforts place a check upon reckless driving to be the best friend of the

drivers. Three persons were killed in Atlanta in one week recently. Another man was killed yesterday. If the drivers

do not hold themselves within due bounds, they will find the reaction against them most embarrassing.

These are my personal views. Indeed the law does not permit me to render a~ official opinion except on request of the -

Governor.

Very truly yours,

CLIFFORD WALKER,
Attorney-General.

City of Buford has authority to collect street tax of persons under 21 years of age. Sections cited.
October 19, 1915. Messrs. Harry D. Power, T. G. Haynes,
Buford, Ga. GENTLEMEN: I have before me your favors of recent date. They would have had earlier attention but I was out of the State on business connected with the office. You raise the question of the legal right of the City of Buford to collect street tax of persons under 21 years of age who are deprived of the right to vote. Replying thereto, I beg to advise that in the police regulation of a city the city has such authority when granted to it by the Legislature. Code of Georgia, Section 1015, lOth Court of Appeals, 337. 5th Appeals 299. Acts of 1910 54. On investigation of the question of the Legislative authority I find that the charter of the City of. Buford grants such. authority to the city. See Acts of 1896, Section 22, page 141.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
271

The County Board of Education of a county has the right to order a new schoC)Ihouse built if they consider it for the best interest of the people.
October 19, 1915. Mr. Geo. P .. Warren,
Hoboken, Ga. DEAR Sm: Replying to your favor of yesterday I beg to say that the authority of a County Board of Education in the matter of discretion in the expenditure of the county's share of school money is wide and the courts would not interfere with this discretion unless it was plainly and manifestly abused. Under the law they would have a right to order a new schoolhouse bui"lt if they considered it for the best interest of the people. If they abuse their discretion your best remedy would be to have others elected in their place.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Without the consent of the municipality, the County Commissioners_ can not work the roads or streets within the incorporate limits.
October 19, 1915. Hon. W. T. Moring, Clerk,
Reidsville, Ga. DEAR Sm : I have before me your request for an opinion on the question of the authority of County Commissioners to work the original public roads that run through towns and villages that are now incorporated towns and cities and beg to say: The question has not been definitely decided by our courts of last resort. However, their expressions have been such that we are left in little doubt as to what they would hold on a proper case. In the case of the Commissioners of Polk County vs. l\fayor and Council of Cedartown (110 Ga. 824) it was held:
"When the corporate limits of a city are so extended as to embrace therein a portion of a public highway and bridge over a stream crossing the same, the municipal authorities at once acquire the right to exercise jurisdiction over the bridge and are
272

chargeable with the duty of keeping it in repair after the county authorities have expressly relinquished such jurisdiction, which they may do with or without the assent of the municipal authorities."
"The moment that the Charter of the City of Cedartown was so amended as to embrace within the limits of that corporation that portion of the public road of which the bridge in question formed a part, the jurisdiction of the county over this part of
the highway ceased, and the same became subject to the control
and jurisdiction of the municipal authorities." 110 Ga. 825; 108 Ga. 417.
"The county was no longer under any duty in respect thereof." 110 Ga. 825. - "The obligation on the part of the county to keep such road or bridge in repair immediately ceases." 110 Ga. 826.
"It is obvious that the officers having control of county affairs can not justly be permitted to control the streets of a city and for this conclusion there are at least two satisfactory reasons."
141 Ga. 550. 1 Elliott on Roads & Streets, Section 503.
The conclusion is that jurisdiction over streets within an incorporated town or city is in the town or city. The county authorities can neither be forced to work these streets nor can they work or otherwise exercise jurisdiction over them or any part of them without the consent of the town or city.
However, in the case of Daniels vs. Athens, 54 Ga. 79, 55 Ga. 609, it was held that where county authorities, with the consent of the municipal authorities, built a bridge within the city limits, which was treated both by the comity and the municipal authorities as a county bridge, the city was under no duty to keep the same in repair. Having voluntarily built the bridge, with the consent of the municipal authorities, it was under a duty to keep the same in repair, and that this duty did not rest upon the municipal authorities.
County authorities have wide discretion as to where ro_ad work is to be done. They can not be forced to work any street in a municipality. If, in their discretion, they see fit to work any such street by and with the consent of that municipality, they have authority to do so. See authorities above named and cases therein cited.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
273

The Tax-Receiver's comm1ss1ons on the State taxes are paid by the

Tax-Collector upon the production of the Comptroller-General's

receipt for his digest. The Tax-Receiver's commissions on

county taxes are paid on county orders just as other claims

against the county are paid.

l'~'J1Ll~Iilih;;1LLJJ.c~~i~r.~-~" 'L~j j~J

I -'; : ,i -~

October 20, 1915.

Mr. Fred B. Heaton, Tax-Receiver, Bowersville, Ga.
DEAR SIR: I have your letter of the 11th inst. in which you ask whether your commissions as Tax-Receiver on county taxes are paid by the Tax-Collector or are paid by the county on a county warrant. In reply I will say that your commissions O:Q. the State taxes are paid by the Tax-Collector, upon the production of the Comptroller-General's receipt for his digest. See Section 1211 (8) of the Code. There is no authority of law for the Tax-Collector to pay your commissions on county taxes. These are paid by the county on county orders just as other claims against the county are paid. See Section 1202 of the Code. I hope the above will give you the information you desire.
Very truly yours,

CLIFFORD WALKER, Attorney~General.

Discussion as to whether or not the Treasurer and his bondsmen would be liable for paying certain 9ounty order in excess of the amount authorized by law.
Atlanta, Ga., October 21, 1915. Mr. J. A. Space,
Darien, Ga. DEAR SIR: I have your letter of recent date, asking my opinion whether or not the Treasurer and his bondsmen would be liable for paying certain county orders. You say in your letter that the County Commissioners are authorized to spend forty per cent. of the revenues of the county for roads, but that they have been spending more than that amount, and you wish to know whether or not the Treasurer is liable in the event he has paid this excess over the amount stated to be authorized
274

by law. In reply, I will say that from the facts stated in your letter it is impossible to. give any very definite answer to your inquiry. In the first place you do not state under what system of road WQrking your county is operating. As you know there are three systems employed by the different countie~; the alternative road law, the four days law, and the old system sometimes termed the "stick and dirt plan." Under the first system . a tax of not more than four-tenths of one per cent. may be levied on all of the taxable property of the county for use on the roads. Under the second system a tax of not less than ten, and not more than twenty-five cents per hundred of taxable property may be levied. Under the third system mentioned above, no road tax at all can be levied for road purposes. See Haisten vs. Glover, 114 Ga., page 992.
For the reasons stated above, I do not know where you find the authority. that the Commissioners are not permitted to spend more than ''forty per cent. of the revenue of the county on roads."
Assuming that the Commissioners are spending more than they are authorized to spend, I could not answer your question without knowing under what system they are working, the manner in which it is being spent, the fund from which it is being paid, and whether or not the county is receiving the benefit thereof. The determination of the question would turn very largely on the particular .facts .of the case. I presume that the payments you refer to were made upon county orders drawn by the Commissioners upon the Treasurer for the payment of debts apparently due by the county. I presume, also, that the county must have received the benefit of the money so paid out and expended. No case like that presented in your letter has ever been before the Supreme Court of this State so far as I can find. However, from some expressions used by the court in cases similar in some respects, I judge that it would take a pretty strong case to render the Treasurer and his bondsmen liable in a case of this sort. Of course, if there was a total absence of authority to authorize the expenditure on the part of the Commissioners, the Treasurer would have the right to refuse to pay the county orders. In the case of Shannon vs. Reynolds, 78 Ga., page _760, the Supreme Court says:
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"Unless this Treasurer, who is the executive officer of the Ordinary, could show that the order on him was fraudulent, or that a mistake existed as to the amount found to be due, he could not go behind the judgment of the Ordinary, acting as County Commissioner, directing the payment of this stLm."
The same principle is announced in the case of Neal Loan & Banking Co. vs. Chastain, 121 Ga., page 500. The general rule seems to be that the Ordinary or Commissioners in auditing the claims against the county and drawing orders on the Treasurer for their payment act as a sort of court and their judgments in these matters have the same effect as ordinary judgments of other courts. The Treasurer can not go behind them except in the cases mentioned in the cases above cited and in the event there is a total lack of authority in the Commissioners to make the payments. In just what cases the Treasurer would be held personally liable for the payment of orders drawn by the proper officers has not been decided by our courts. For this reason, I could not give a definite opinion without having all of the facts of the case before me. In any event it is pretty hard to tell just what the courts are going to decide on the peculiar facts of any case where you have no previous decision to guide you.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.-
1. Discussion as to whether or not a County School Superintendent is a State or County officer.
2. Whether it is necessary for this officer to be a resident of the county in which he offers for election two years prior to the election.
3. Citizenship depends upon the intention of the person.
Atlanta, Ga., October 29, 1915. lllr. J. C. Upshaw,
Covington, Ga. DEAR Sm : I have your letter of recent date asking for an opinion on the following questions:
1. Is the Comity Superintendent of Schools a State or County officer?
271

2. Is it necessary for this officer to be a resident of the county in which he offers for election two years prior to the election?
3. \Vhen is a man a resident of a county so as to render him qualified to hold a public office?
The first question you ask is a very difficult one to answer. There is no decision of our Supreme Court clearly defining just what is a county officer. The constitutional county officers are those which were in existence at the time of the adoption of the Constitution of 1877. See the case of J\Iorris vs. Glover, 121 Ga., page 751. These were the officers provided for by law for the transaction of county matters before the adoption of the Constitution of 1877, and included the Clerk of the Superior Court, the Sheriff, Tax Collector, Tax Receiver, Treasurer, Coroner, and Surveyor and possibly the Ordinary. These officers were recognized by the present Consti~ution. Constitution, Art. XL., Sec. 11. All these officers are required to be elected by the people, and must have been residents of the county for two years prior to their election, and hold their offices for four years. By Art. XI, Sec. 111 of the Constitution it was provided that whatever tribunal or officers were created after the adoption of the Constitution ''for the transaction of county matters," except Commissioners of Roads and Revenues, should be uniform throughout the State. Thus it appears that county officers are those, (1) who are elected by the people, (2) who are elected for "the transaction of county matters," (3) who hold their offices for four years, (4) who have been residents of the county for two years and are qualified voters. All of the above mentioned officers are county officers and must have the qualifications set out above.
Now, it appears that the General Assembly has provided that the Superintendent of County Schools is to be elected by the people of the county for a term of four years, and at the same election as that in which the State and County officers are elected, that the office shall be uniform throughout the State, and for the transaction of county matters. See Sec. 12 of the Act of the Legislature approved August 21, 1911. It looks, therefore, very much as if the intention of the Legislature was to make this office a county office. In the !lase of McLain vs. State, 71 Ga., page 284, the Supreme Court held that the County
277

School Commissioners were not county officers. The reason given by the Court for this holding was that these officers at that time were elected by the grand jury and held their offices for a term of four years. (It will be noted that at that time all county officers held their offices for a term of two years.) The views above expressed are strengthened by the reasoning of the Supreme Court in the case of Rose vs. State, 107 Ga., pages 702 and 703, in which it was held that a constable is a county officer. In this case it was strongly intimated that Ordinaries, Justices of the Peace, and Members of the Board of Education where elected by the people are county officers.
On the other hand, it is claimed that the Superintendent of County Schools is a State officer for the reason that he is a part of the State school system. Under the Act of the General Assembly approved August 21, 1913, the State is divided into school districts, each county being a district. (Section 4 of the Act.) The State Superintendent of Schools has the authority to suspend a County Superintendent. (Sec. 9.) The State Superintendent has charge of the administration of the State school fund, general superintendence of the schools, and the County Superintendent is responsible to the State Superintendent. (Sees. 5, 9, 10, 11.) It is the duty of the former t~ enforce all the regulations, rules, and instructions of the latter. (Sec. 12.) The County Superintendent is partly paid from the State school fund, but the county board has the authority to supplement his salary. (Sec. 15.) The State provides what is known as a school fund. See Section "1515 of the Code of 1910. It is claimed that the County School Superintendent is only a district agent or instrumentality used by the State in administering this State school fund. There is some force in this argument, and some lawyers are inclined to take this view of the matter. However, I must say that there is a very plausible reply to the above argument in this: (1) Neither the particular duties of an officer nor the character of the office necessarily determine the class in which it should be designated. See Collins vs. Russell, 107 Ga., page 427 and 428. (2) The fact that the officer is concerned with the administration of the State laws within his particular county or district does not necessarily make the officer a State officer. All the county officers, and especially the Sheriffs, Clerks of the Superior Courts, .and Tax-
278

Collectors and Tax-Receivers are vitally concerned with the administration of the State laws in their particular counties. Rose vs. State, 107 Ga., 702-3. The Tax Collector deals directly with the State in the collection of the State taxes and is responsible directly to the State, yet he is certainly a county officer. The Clerk of the Superior Court has many duties to perform for and on behalf of the State, and yet he is a county officer. The same may be said of the Coroner. So it appears that the arguments are pretty evenly balanced on the question as to whether the County School Superintendent is a Stat"e or county officer.
There is yet another view of the matter which may be correct. That view is, that the County School Superintendent is both a State and county officer, but is neither a Constitutional county or State officer. If he be a county officer, that is to say a statutory county officer and not a constitutional county officer, then Section 258 (7) of the Code of 1910 may apply. This Section provides as follows:
"No person shall be eligible to hold any county office in any county of this State, unless he shall have been bona fide a citizen of the county in which he shall have been elected or appointed at least two years prior to his election or appointment, and is a qualified voter entitled to vote."
This Section in my opinion applies to any officer whose duties are of a county nature, or who is elected or appointed "for the transaction of county matters," although he is not a Constitutional county officer. See Section 113 of the Code. This is true for the reason that the Constitution provides that "County officers'' must be elected by the people, and the Section quoted includes those officers who are either elected or appointed.
The reply to the last argument abov:e alluded to is, That the Section quoted is only an Act of the Legislature, and that the Act of the Legislature passed in 1911 in Section 14 provides thatthe County Superintendent of Schools must "be a resident of the county in which he offers for election.'' It may be said that the last mentioned Act supersedes the first for the reason that it is the last expression of the legislative will on the subject and in a matter dealing directly with the qualifications of the County Superintendent of Schools.
You will doubtless think that I have extended this opinion to great length without coming to any conclusion in the matter.
279

This is true. The whole matter is involved in so much obscurity and uncertainity that the best lawyers differ widely on it. The opinion of a lawyer is not worth very much on the subject. It will require a ruling of. the Supreme Court to clear up the whole matter and let us know "where we are at." I have given you all the law and decisions of the courts so far as I can find throwing any light on the subject.
The answer to your second question depends entirely on the answer to the first, and I have done my best in answering that.
In reply to the third question, I will say that under Art. 2, Sec. 1, Par. 3, of the Constitution of this State, to entitle a person to register and vote, he must have been a resident of the State one year, and must have resided in the county for six months neit,preceding the election at which he offers to vote. In order to hold a public office he must have the same qualifications unless there is an exception in the case of the County Superintendent of Schools, and the answer to that question would depend upon the answer to the first question propounded by you. A person is a resident of a county when he has taken up his abode in that county with his family with the intention of permanently remaining or abiding there with his family. If he goes to such county only for a certain purpose and with no intention of permanently abiding there, or if he has the slightest intention of removing therefrom, he is not legally a resident of the county. This intention must in all cases be bona fide. No certain length of time is required to establish domicile or residence, but a certain length of residence or domicile is required to entitle one to exercise the privilege of voting or holding office.
Code Sections 2181 and 2186.
There must be a bona fide intention to abandon the former residence before residence in the latter county is acquired.
Bush vs.. State, 10 App. 544 (2). Daniel vs. Sullivan, 46 Ga. 277.. Peacock vs. Collins, llO Ga. 281 (1, 2).
You will understand that this is not an official opinion, as this office is not permitted to furnish an official opinion except on the request of the Governor. However, I am very glad to
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give you the benefit of my personal views on the questions submit1ed in your letter.
Very truly yours,
CLIFFORD WALKER, Attorney~General.
Confederate veterans may peddle without a license.
November 5, 1915. Mr. M. R. Peacock,
Pavo, Ga. DEAR Sm: Replying to your favor of recent date, Section 1889 of the Code provides that all Confederate veterans may peddle without a license. The Ordinary should permit you to peddle under this Section. It is true that Sections 1888 and 1892 refer to a disabled soldier, but the Section first named authorizes your exemption. If the Ordinary is not clear in the matter, have him write to me and I will gladly take the matter up with him.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
Lien on tourist's automobile for work done.
November 5, 1915. Pate Garage,
Montezuma, Ga. GENTLEMEN: I have yours of recent date asking some ques~ tions with reference to 'the lien laws of the State. In reply I will say that if a tourist from Fulton County passes through your county and engages you to repair his automobileyou have a special lien for such services which may be asserted by holding the property. See Section 3354 of the Code. If you surrender possession of the car to the debtor, in order to assert your lien against it, you are required to record your claim or lien within ten days. This claim must be recorded in the office
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of the Clerk of the Supedor Court of the county where the owner resides. See. Section above cited. If you foreclose the claim for lien it would be necessary that the proceedings should be instituted in the county where the debtor resides, that is to say in Fulton County if the tourist lives there. See Section 3366, 1, 2, 3, and 4 and 5 of the Code.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
No State or county tax on selling Bibles or spelling books. When authorized by charter, municipality may impose tax.
November 5, 1915. Mr. A. Murphy,
Quitman, Ga. DEAR SIR: Replying to your favor of recent date there is no State or county tax on selling Bibles or spelling books. The city can impose a municipal business tax provided they pass an ordinance to that effect, and further provided they are so authorized by their city charter. You can get this information from the City Clerk.
Very truly yours,
CLIFFORD WALKER,.
Attorney-General.
A county can not offer rewards to be paid from county funds.
November 9, 1915. Hon. L. R. Wiggins,
Ringgold, Ga. DEAR SIR: Replying to your favor of the 8th inst., you will find that the Section of the Code limiting the' objects for which the Ordinary can levy taxes does not include a levy for the purpose named. For this reason any such appropria- tion as suggested by you would be illegal. The county cannot offer rewards. There is a special provision made therefor
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through the Governor, and I suggest that application be made to him.
Very truly yours,
CLIFFORD WALKER,
Attorney~General.
Assessment of property in contemplation of the Inheritance Tax Law should be based on the actual or market value of the property.
November 19, 1915. Hon. W. A. Mallory, Tax-Collector,
Athens, Ga. DEAR Sm: I am iri receipt of your favor of recent date requesting an official opinion upon the construction of the Inheritance Tax Act and in response beg to say that the language of. the Act on the question submitted is as follows:
"They (the appraisers) shall appraise such property at its actual or market value at the time of the death of the decedent." -Acts of 19l3, page 96.
This law was passed in 1913, when the custom of assessing taxes on a percentage of its actual or market value was recognized; in spite of this fact the Legislature expressly and clearly registered its will that in assessing Inheritance Tax the act1wl or market value should be adopted. It will be recalled that this Inheritance Tax is not a tax on the property directly, but on the right to inherit; therefore, the rules applying to direct property taxation do not apply exactly.
It is my opinion that assessment of property in contemplation of the Inheritance Tax Law should be based on the "actual or market value" of the property.
Yours very truly,
CLIFFORD wALKER,
Attorney-General.
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There is no general law directing the payment of rewards to sheriffs arresting 'escaped felony convicts.
November 20, 1915. Hon. L. E. Gibbs, Sheriff,
Abbeville, Ga. DEAR SIR: I have received your favor. and regret to say that I know of no general law directing the payment of rewards to sheriffs arresting escaped felony convicts. The Governor sometimes offers rewards in special cases, but I believe the rules of his department prevent the payment of rewards to Sheriffs. You might look into the matter and see if a reward was offered by others. Perhaps the county authorities offered such a reward.
Very truly yours,
CLIFFORD wALKER, .
.Attorney-GeneraL
Law regarding working on the Sabbath. Section 416.
November 20, 1915. JJir. 0. M. Hayward, President,
Reeves, Ga. DEAR SIR: Replying to your favor of 12th instant I beg to say that the only law against Sunday work is the general statute making it a misdemeanor to engage in the regular and usual work of the week day on Sunday,-the work of ordinary calling. You will find this in Criminal Code of Georgia, Section 416. Your Justice of the Peace will furni~h this to you.
Very truly yours,
CLIFFORD wALKER,
.Attorney-General.
Legal method of paying out money derived from the taxes collected.
.Atlanta, Ga., November 20, 1915. Hon. G. H. Gilreath, Treasurer,
Cartersville, Ga. DEAR SIR: I have your favor of recent date regarding the tax levy for your county and requesting an opinion as to the
J84

legal method of paying out money derived from the taxes for 1915.
It appears from your letter that the County of Bartow has a considerable outstanding indebtedness for the year 1914. It further appears that this indebtedness is in the form of county warrants or orders issued by the County Commissioners upon you as Treasurer. I assume that this indebtedness was legally contracted by the county and that the same is a lawful claim upon the county. You do not state in your letter for what purposes the aforesaid indebtedness was created. I assume, however, that the claims against the county were properly audited and allowed and registered, and that each of the orders . representing this indebtedness specifically designates upon what particular fund such order is drawn. This is required by Section -410 of the Civil Code. I suppose that all of these orders have been properly presented as required by Section 411 of the Code. You say in your letter that there were not sufficient funds raised by taxation during the year 1914 from the tax levies of that year to pay these county orders. Therefore, if these debts are legal and legally incurred, not having been paid at the time when they fell due, they remain a legal debt against the county and rank as an accumulated debt.
You send me in your letter a copy of the tax levies for the year 1915. I assume that this levy was properly and lawfully made, and therefore, I do not stop to consider whether or not the total per cent. levied is in excess of the 50 per cent. of the State tax for this year as required by Section 508 of the Code. I might say, however, in passing, that items one, two, six, and seven of the levy, as well as the levy of the special school tax, are not to be considered in ascertaining whether or not the levy exceeds the 50 per cent. on the State tax for the year. See Section 508 of the Code. Also see Waller v. Perkins, 52 Ga. Reports, page 234. Also, I might say that the county authorities have the right under the law to levy the_ per cent. of tax for the purposes mentioned in item one of the levy without the recommendation of the Grand Jury, and, if necessary, to make this per cent. equal to the difference between the current expenses; that is to say for those matters mentioned in items three, four, five, and eight of the tax levy, and one hundred per cent. upon
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the State tax for the year. See Section 507 of the Code. Also

see case of Sheffield v. Chancy, 138 Ga., page 677.

Section 513, of the Code prescribes the objects for which a

county tax may be levied. The purposes herein enumerated do

not include the special road tax under the alternative road law, nor the local school tax under the l\Icl\fichael law. It appears

that the tax levy followed the language of the Code in the Sec-

tion mentioned, except that no tax is levied to pay the coroner's

fees for holding inquests. I assume, therefore, as stated above,

that this tax levy was lawfully made.

Section 516 of the Code provides that taxes raised for educa-

tional purposes, or for the support of the poor, or any other

specific purpose,. must be used for such purpose respectively,

and none other.

-

Item one of you~ tax levy is as follows: "Thirty cents on the

$100.00 to pay the legal indebtedness of the county due or to

become due during the year 1915, or past due." This levy fol-

lows the exact language of Paragraph 1, Section 513 of the

Code. Of course you will understand that the money raised

by taxes for the year 1915 under each and all of the other items in the levy, with the exception of the first, m~st be applied to the purposes designated therein and for expenses incurred by the county for the year 1915 only. If any of these expenses

last mentioned remain unpaid at the end of the year 1915 for

the lack of funds in the hands of the Treasurer, then such ex-

penses or charges become accumulated debts of the county after

the year 1915. The question you ask therefore relates to item

one in the tax levy. The purpose of this item as stated above is

to pay the legal indebtedness due or to become due during the year 1915, or past due. You wish to know whether the fund

arising from taxation for the year 1915 under item one of the

levy is to be applied by you to the payment of debts becoming due during the year 1915, or whether if this fund if not suffi-

cient to pay the debts becoming due during the year 1915, and also prior debts -for the year 1914, is to be applied first to the

payment of the debts for the year 1914. I think there can be no question that the funds arising under item one of the levy

may be lawfully applied to the payment of accumulated debts

for the year 1911. The question therefore is, whether the accumulated debts for the year 1914 are to be paid first if the

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funds are insufficient to pay the indebtedness for both years 1914 and 1915.

Section 576, Paragraph 3, of the Code provides as follows:
"It is the duty of the County Treasurer to pay without delay, when in funds, all orders, according to their date (or other debts due); and when not in funds as hereinafter prescribed."

Section 579 of the Code provides as follows:

"\Vhen there are funds enough to pay all outstanding orders

and other forms of indebtedness due, which the Treasurer may

be authorized to pay, they may be paid indiscriminately without regard to their date; when there is enough to pay all dated anterior to some particular dates, all such may be likewise paid indiscriminately; when there is not enough to pay all of equal

degree, they shall be paid ratably; under all other circumstances

they shall be paid in the order of their dates."

-

Section 582 of the Code provides that on the first day of December of each year the Treasurer shall make an entry of the order in which the county orders are to be paid.
Since the funds raised under item one of the levy are to be used under the law for the payment of the legal indebtedness of the county due, or to become due, or past due, I am of the opinion that Section 579 of the Code above mentioned regulates the order in which the county warrants are to be paid. If this fund is insufficient to pay the indebtedness for the years 1914 and 1915, then the lawful warrants or orders which have been duly presented and registered are to be paid out of this fund first. Section 579 of the Code clearly provides that under such circumstances these orders are to be paid in the order of their dates. If the fund is not ,sufficient to pay all the outstanding orders for the year 1914, then it would have to be applied to the payment of the oldest orders as far as the same will go. If there are several orders bearing the same dates, then the fund would have to be paid out on them ratably. If the fund is sufficient only to pay all orders dated anterior to some particular date, then the entire fund would have to be applied to the payment of such orders. If the fund is sufficient only to pay the legal orders for the year 1914, no part of the same under the Section above quoted could be paid on the 19'15 orders.
I hope this will give you the information you wish. Very truly yours,
CLIFFORD wALKER,
Attorney-General.
287

Notes and loan deeds held by a non-resident in an,other State are not subject to taxation by a county in this State. (See cases sited.)
November 23, 1915. Mr. R. W. Edwards,
Louisville, Ky. DEAR SIR: In reply to your request for an opm10n on the Schley County tax matter I will say that I have looked into the facts set out in your letter to Hon. W. A. Wright, ComptrollerGeneral, of date November 13th, 1915, and am of the opinion that you are not liable for the tax assessed against you in this county, under the facts stated in your letter.
It appears from your letter that you are a resident of the State of Kentucky and have been such a resident all your life: You have never lived in the State of Georgia. It appears that you have loaned various sums of money to different parties living in Schley County. It also appears that you have never had an agent in the State of Georgia, but that applications for loans were made by parties reP.resenting the borrowers. It further appears that the notes and loan deeds given to secure the pay~ent of the money loaned by you to parties in Schley County are held by you at your home in Kentucky and are not kept by you in Georgia. Under the facts above stated I am sure that you would not be subject to taxation in the State of Georgia and that you are not liable for the taxes assessed against you in Schley County. This matter has been before the Supreme Court of the State of Georgia and the Supreme Court of the United States. On this subject see.
Armour Packing Co. v. Clark, 124 Ga. 307. City of New Orleans v. Stempel, 175 U. S., page 30!!, 44 Law Edition, page 175, and notes. Catlin v. Hull, 21 Vermont, page 152. Kirtland v. Hotchkiss, 100 U. S., page 4!!1, 25 Law Edition, page 6!!8.
The above cases, together with the cases cited therein and the notes appended to the Stempel case, supre, will give you a full discussion of the legal points involved in the case as presented by your letter. The holding in these c3;ses clearly shows
188

that you are not liable for the taxes assessed against you under the circumstances detailed in your letter.
I hope the above will give you the information -you desire. Very truly yours,
CLIFFORD WALKER,
Attorney-General.
County authorities can not be forced to work any street in a municipality, but they have authority, in their discretion, to do so by and with the consent of the municipality.
November 23, 1915. Hon. R. W. Wiggins, Ordinary,
Ringgold, Ga. DEAR SIR : when you were in this office last week you requested an opinion as to the authority of the County Commissioners to work the public roads that run through towns and villages now incorporated as such. In reply I will say that the question you ask has not been decided definitely by our Courts of last resort. However, the expressions used by the Supreme Court in certain cases are such that we are left in little doubt as to what they would hold on a proper occasion. In the case of the Commissioners of Polk County vs. 1\Iayor and Council of Cedartown, 110 Ga., page 824, it was held:
"\Vhen the corporate limits of a city are so extended as to embrace therein a portion of a public highway and bridge over a stream crossing the same, the municipal authorities at once acquire the right to exercise jurisdiction over the bridge and. are chargeable with the duty of keeping it in repair after the County authorities have expressly relinquished such jurisdiction, which they may do with or without the assent of the municipal authorities.
"The moment that the Charter of the City of Cedartown was so amended as to embrace within the limits of that corporation that portion of the public road of which the bridge in question formed a part, the jurisdiction of the county over this part of the highway ceased, and the same became subject to the control and jurisdiction of the municipal authorities."
"The county was no longer under any duty in respect thereof." llO Ga. 825.
"The obligation on the part of the county to keep such road or bridge in repair immediately ceases." 110 Ga. 826.
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In the same case it was also said :
"\Ve do not mean to hold that the county authorities may not, if they see proper to do so, build bridges within the corporate limits of cities and towns or improve the streets of towns and cities embraced within the limits of the county."
In the case of Commissioners of Sumter County vs. The -Mayor and Council of Americus it was_ held that a special Act of the Legislature authorizing and requiring the Commissioners to work the county chain-gang npon the streets of the City of Americus for not exceeding three months of each year is unconstitutional and void because it was a special law enacted in a case for which provision had been made in the alternative road law. However in this case the Court says:
"It is unnecessary to discuss whether county authorities could, if they saw proper, do work upon the streets of Americus with the approval .of the municipal authorities, or whether that would be beyond the contemplation of the general law. (See Commissioners of Sumter County v. Americus, 141 Ga., page 542.)
The conclusion is that jurisdiction over streets within an incorporated town or city is in the town. or city. The county authorities can neither be forced to work these streets nor can they work or otherwise exercise jurisdiction over them or any part of them without the consent of the town or city.
However, in the cas~ of Daniels vs. Athens, 54 Ga. 79, 55 Ga. 609, it was held that where county authorities, with the consent of the municipal authorities, built a bridge within the cny limits, which was treated both by the county and the municipal authorities as a county bridge, the city was under no duty to keep the same in repair. Having voluntarily built the bndge, with the consent of the municipal authorities, it was under a duty to keep the same in repair, and that this duty did not rest upon the municipal authorities.
County authorities have wide discretion as to where road work is to be done. They can not be forced to work any street in a municipality. If in their discretion they see fit to work any such street by and with the consent of that municipality, it seems from the expression used by the Supreme Court in the cases above cited, that they have authority to do so. However,
290

I have been unable to find any decisions of the Supreme Court directly in point on the question you have asked.
Very truly yours,
CLIFFORD wALKER,
Attorhey-General.
A teacher has no right to whip a child for something the child does on Saturday or Sunday, no school being held on these days. A teacher has the right to lay down reasonable rules and regula tions concerning the conduct of pupils going to and fromschool.
December 1, 1915. Hon. B. C. Head, Chairman,
Griffin, Ga. DEAR Sm: I have before me your favor of November 30th, in which you requ~st an opinion upon the following questions :
l. What right has a school teacher to whip a child for what he or she does on the road home or from home to school ?
2. Has a teacher a right to whip a child for what he does on Saturday or Sunday, when there is no school?
I answer the second question first by saying that the teacher has no such right. The parents have absolute control of the child on Saturday and Sunday when there is no school.
As a matter of proper discipline the teacher probably has a right to lay down reasonable rules for the conduct of school children on their way to and from school, especially when they congregate or get together on the way or pass public or dan-gerous places. This, in contemplation of the parents relinquishing, voluntarily, their right to control to the supervision of the teacher for the safety and good of the child, but, of course, such right can not be arbitrarily or unreasonably exercised.
Trusting I have given you the information you desire. Very truly yours,
CLIFFORD w AL.KER,
Attorney-General.
291

The word "supervision,". in Code Sec. 1565 (q), means "over-seeing" of schools; the managing and direction of schools in some school unit, either county or city system of schools.
December 1, 1915. Prof. E. 111. Pofford,
Waycross, Ga. DEAR SIR: I have before me your request for an interpretation of the clause "Five years' experience in actual supervision of schools'' as contained in Code Section 1565 (q). Replying thereto, I beg to say that the author of the Act advises that the intention of this expression involving the definition of the word ''supervision'' is expressed in the literal meaning of the word; that is to say, the "over-seeing" of schools: the managing and direction of schools in some school unit, either county or city system of schools. I have investigated the records of the State School Department and find that this Department has uniformly so construed the law. while custom and precedent are not binding in legal construction they are weighty and when sustained with probable correctness are controlling. That the prineipalship of a single school was not contemplated in this construction is borne out by the context, other expression in the body of the Statute referred to. The word "teaching" implies the occupation ()f such a Principal or the more common ~xpression "Teacher." It is cl~ar that something more than acting as a "Teacher" as commonly understood was contemplated. I conclude that the interpretations given the law here by the school authorities of the State are correct and binding in law. I am appending a succinct statement of the qualifications required which I trust will simplify the difficulties in determining just what the law does mean. County School Superintendent must possess at least one of the following qualifications:
I. Three years' experience in teaching, one year of which has been in Georgia, and the possession of a first grade license.
2. A diploma from a reputable college or normal school. 3. Five years' experience in actual school supervision.
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4. An approved examination before the State Board of Education as to qualification.
5. And, residence in the county for two years before the election.
Trusting that this is the information you desire. Very truly yours, CLIFFORD WALKER, Attorney-General.
The law regarding the County's right to borrow money. Art. 7, Par. 7, Section 1, Constitution of Georgia. Cases cited.
December 6, 1915. Mr. R. K. Hopkins,
Meridian, Ga. DEAR Sm: I have your letter of recent date asking for some information as to the issuance of bonds by counties for the purpose of raising money to be used in working the public roads of the county. You state in your letter that the county has already spent on the roads more than the entire income of the county for the year 1916, and that this money has been borrowed by the county. You ask whether or not bonds of the county are good and valid where they are issued against the total income of the county for the said year. I suppose the bonds you refer to are to be issued in addition to the bonds already issued as stated in your letter. I think the question you ask will depend upon the provisions of Art. 7, Par. 7, and Section 1 of the Constitution of this State. This Section provides as follows:
"The debt hereafter incurred by any county, municipal cor poration or political division of this State, except as in this Constitution provided for, shall never exceed seven per centum of the assessed value of all the taxable property therein; and no such county, municipality, or division shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue not to exceed one-fifth of one per centum of the assessed value of taxable property therein, without the assent of twothirds of the qualified voters thereof at an election for that purpose, to be held as may be prescribed by law."
You will see from the above provision of the Constitution that
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no county is authorized to borrow money, except to supply by a temporary loan or loans casual deficiencies of revenue not to exceed one-fifth of one per centum of the assessed value of the taxable property therein, without the assent of two-thirds of the qualified voters at an election held for that purpose. See also the case of Butts County, et al. vs. Jackson Banking Co. et al., 129th Ga., page 801, and the case of Dawson Water Works vs. City of Dawson, 106 Ga., page 713.
I hope the above will give you the information you desire. Very truly yours, CLIFFORD wALKER, Attorney-General.
No law provided for protest on the disposition of County's funds.
December 7, 1915. Hon. W. B. Townsend,
Dahlonega, Ga. DEAR SIR: Replying to your favor of yesterday I beg to say that the only legislation on the subject you will find in the Act submitting the Constitutional Amendment which simply gives the Legislature authority to abolish the office of County Treasurer. No provision is made whatever for the disposition of the County funds and the bills have been severely criticised for this reason but the law is so written. I am of the opinion that proper safeguards should have been provided directing tp.e placing of the funds under safe conditions. For the reason indicated I can find no legal basis for protest on the disposition of your own county's funds as you inquire. Trusting this is the information you desire.
Very truly yours, CLIFFORD WALKER, Attorney-Gen~ral.
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Citizenship is determined from the intent of the party.
December 9, 1915. Mr. W. A. Payne,
Young Cane, Ga. DEAR Srn: Replying to your favor of the 8th inst., it will be impossible for me to give you the opinion as to citizenship, as it is a matter of evidence. It will be determined by the intent of the party largely. If he intended to lose his citizenship in Georgia and gain citizenship in Tennessee, he would probably be disqualified. If, however, he was simply making a trip to decide one way or the other and finally decided to remain in Georgia he would not lose his citizenship here, and therefore would not be disqualified. I am sorry that I cannot be more definite, but this is one of the cases where it is impossible to be thoroughly so.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
Authority of Justice of Peace to issue fl. fas. Section 3293.
December 14, 1915. lllr. J. W. Colley,
Chipley, Ga. DEAR Sm: I have your letter of recent date asking for some information in regard to the foreclosure of some mortgages against parties residing in Troup County. It appears from your letter that five affidavits were made before the Justice of the Peace of the 565 District of Troup County for the purpose of foreclosing certain mortgages on personal property. It further appears that the fi. fas. were issued by the Justice of this district, and that they were made returnable to the Justice Court of the 1689th District of Troup County. You state in your letter that the propery sought to be levied on was located in the last named district, and that the parties against whom the fi. fas. were issued at that time resided in the 1689th district~ You wish to know whether or not. under the law the Justice of the 565 district had the authority under the circumstances above named to issue the fi. fas. making them '
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returnable to the Justice Court of the 1689 district of said County. In reply I will say that in my opinion the Justice of the 565th District had the authority to issue the fi. fas. as stated in your letter. See Code of Georgia, Section 3293, which gives him this authority. See also, 122 Ga., page 576. I hope I have given you the information you desire.
V cry truly yours,
CLIFFORD WALKER,
Attorney-General.
1. One who is not a lawyer is not authorized to engage in the business of drawing deeds, etc., for other persons and make charges for the same.
2. Such a person could represent another in making collections and receive compensation therefor provided he did not have to go into the courts.
3. A commercial notary public can administer oaths and attest papers in a general way.
4. A commercial notary public, otherwise qualified, is authorized to assist in holding a primary election.
Atlanta, Ga., December 14, 1915. Mr. J. L: Dent,
Roberta, Ga. DEAR SIR: I have your letter of recent date in which you ask the following questions: First. Is a male citizen of the State, who is not a lawyer, authorized to draw deeds, mortgages, contracts, notes, wills, bills of sale, and similar papers, for other persons, and make charges of fees for this work 1 Second. Is such a person, under the law, authorized to make collections for other persons and charge for his services 1 Third. Is a commercial notary public authorized by law to administer oaths and attest papers in a general way where the same is not required to be done by some special officer 1 Fo~rth. Is a commercial notary public authorized to assist in holding a primary election 1 In reply to the above question number one, I will say that Section 4930 of the Code provides that only certain persons who have been admitted to the bar are authorized to practice law in the courts. Section 918 requires such persons to pay a license
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before engaging in the business of practicing law. Just what constitutes the practice of law has never been defined by the higher courts of this State so far as I can learn. Section 1696 of the Code sets forth what constitutes the practice .of medicine.
The Court of Appeals has held that the making of one sale as a real estate agent constitutes "engaging in the business" of a real estate agent so as to render him liable for the tax on such business. Some of the courts of other States have held that the drawing of deeds, wills, etc., is the practicing of law. I am inclined to think, therefore, that if one carries on the business indicated in your first question, that is, engages in it as a business, it would be necessary for him to be admitted to the bar and pay the tax required of lawyers. Of course, it would be no violation of the law for him to draw a deed, will, etc., occasionally, but not as a business, and receive compensation therefor if the person for whom such work was done paid the charges voluntarily. But in no event would the law furnish him any means to enforce payment of such charges unless he were admitted to the bar and had paid the professional tax required of lawyers.
In answer to your second question, I think such person has the right to make collections for others and receive compensation therefore, but he could not represent others in the courts in making such collections.
In answer to your third question, I will say that a commercial 'notary public can administer oaths and attest papers in a general way where the sall'l:e is not required to be done by some special officer.
In answer to your fourth question, I will say that a commercial notary public is authorized to assist in holding a primary election provided he has been properly chosen for this purpose according to the rules of the political party holding the same and takes the manager's oath as required by law. In this connection see Sections 127 and 131 of the Code of 1910.
This does not apply where a Justice of the Peace is expressly required.
I hope the above will give you the information you desire. Yours very truly, '
CLIFFORD WALKER,
Attorney-General.
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Tax-collectors are required to pay amounts collected by them into tho State Treasury and State Depositories on the first Monday in each month at the time they make their monthly statements.
December 15, 1915. Howard Ashburn, Esq., Cashier,
Moultrie, Ga. DEAR SIR: Your favor of the lOth inst., directed to the Governor has been by him referred to me for answer. Replying thereto, I beg to say that under Section 1213 of the Code of this State of 1910, it is the duty of the County Tax-Collector to make monthly statements under oath of all taxes, both State and county, collected by him.
Under the provisions of Section 1214 of the Code, the TaxCollectors are required to make this monthly statement on the first Monday of each and every month.
Section 1215 of the Code provides as follows:
"The Tax-Collectors when they make their monthly statements as provided for in the foregoing Sections, after deducting their commissions on the amount included in their monthly statements, shall pay into the State Treasury, or such banks as are designated by the. Governor as State depositories, the hundreds of dollars of the State's part of the amount in said statement, leaving the fractions of hundred dollars on hand, and which will constitute the first item in the next month's statement; they shall also, at the same time, after deducting their commissions for collecting the county's part of the taxes, pay into the county treasury, the hundreds of dollars of the county's part of the amount in said statement, leaving the fraction of hundred dollars on hand, and which will constitute the second item in the next statement."
See also, Sections 1213 and 1216.
Construing the above quoted Sections together, it appears that the Tax-Collectors are directed to pay the amounts collected by them as State taxes into the State Treasury or such banks as are designated as State depositories at the .time they make their monthly statements, which time is the first Monday in each and every month. The amounts so deposited in the State depositories on the first Monday of each month are amounts collected by the Tax-Collectors since the last monthly statement made by them and since making the last depCn:!it with the State depositories. For this reason it appears that the law does not re-
298

quire Tax-Collectors to pay the amounts collected by them as State taxes into the State depositories as these taxes _are collected, but they are only required to pay the same into the State depository or tlie State Treasury once each month, and on the same time they make their monthly statements.
I hope the above will give you the information you desire. Yours very truly, CLIFFORD WALKER, Attorney-General.

'
A municipality may pass reasonable ordinances in regard to where a person may cross its streets.

Mr. Geo. W. Mttller,

December 18, 1915.

City.

DEAR SIR: I beg to acknowledge receipt of your favor of

15th instant, in which you inquire if the City of Atlanta has

the right to pass an ordinance preventing a man from walking

across the street at any point whatsoever when he has been a

voter, taxpayer and resident of that city for thirty-five years.

In response, I beg to say that the only legal inhibition against

the enactment of ordinances for the police regulation of a

municipality is that the ordinances must not be unreasonable.

Whether or not the traffic and dangers incident to travel on the

streets are such as to make the new regulations reasonable would

be a matter to be finally determined by the courts. I regret

that I can not give you a more definite reply.

V.ery truly yours,

CLIFFORD WALKER,

Attorney-General.

It' is the duty of the Tax-Collector to always keep open a registration book.
December 29, 1~15. Bon. J. A. Tyler,
Box Spring, Ga. DEAR SIR : General Wright has given me your favor of the 25th inst. to answer and I beg to say that the General Assembly
299

did pass a law making all registrations permanent unless they are stricken for non-payment of taxes. In other words, no man who has registered and paid his taxes need register again. However, it is the duty of the Tax-Collector to keep open a registration book always. It was the Collector's duty to keep this book this Fall. He can arrange with you to keep it open during the Spring and I would advise this as he may be unfavorably criticised if any one is deprived of voting on his account.
Very truly yours,
CLIFFORD \VALKER,
Attorney-General.
If there are no eye-witnesses to the death, it is the duty of the Coroner to hold an inquest.
December 29, 1915. Mr. 0. F. Allen,
Newnan, Ga. DEAR SIR: Your favor of the 25th inst., addressed to the Governor, has been submitted to me for reply. In reply I beg to say that if there were no eye-witnesses to the death it is the duty of tlie Coroner to hold an inquest. If you desire it, I suggest that you write insisting that this be done. The facts will not justify the offer of reward, but it is the duty of the Coroner to bring out all facts in the case, and I feel sure that this will give you the relief that you desire. If we can be of further service command us.
Very truly yours,
CLIFFORD WALKER,
Attorney-GeneraL
Sections cited relative to abolishing -or discontinuing an existing public road.
Atlanta, Ga., December 31, 1915. Mr. H. B. McCollttm,
Hapeville, Ga. DEAR Sm: I have your letter of recent date asking what arethe steps necessary under the law in order to abolish or dis-
300

continue an existing public road. In reply, I will say that you will find the law on this subject in Sections 640 to 644 inclusive of the Code of this State of 1910. In the case of Jones vs. Williams et al., Commis~oners, 70 Ga., .page 704, the Supreme Court says:

"An existing public road can not be discontinued without the order of the Ordinary or County Commissioners, where there are such Commissioners, passed upon application and notice, and duly registered in the proper office."

Section 644 of the Code provides :

"Applications for the discontinuance of an old road, in whole or in part, must likewise be made to such Ordinaries (or Com missioners, where there- are Commissioners) in writing, and like wise published, before it shall take effect."

This Section was not abolished by the alternative road law. See 118 Ga., page 639.

The law requires that the application be filed in the proper office, that notice and citation be published for thirty days at the door of the courthouse, and in a public gazette, if there is one published in the county, and that persons residing on land which such road touches be notified, said notice stating that on a certain day the application will be heard and granted if no good cause be shown to the contrary. Persons interested have a right to object to the order discontinuing the road, and the Ordinaries or Commissioners hear evidence and decide the matter.

This is not an official opinion as the law does not permit the Attorney-General to furnish an official opinion except on the

request of the Governor, but I am glad to give you the above

information..

Very truly yours,

CLIFFORD wALKER,
Attorney-General.

301

A series of auction. sales would be carrying on the business of auctioneer and as such be subject to the license tax.
Atlanta, Ga., December 31, 1915. Mr. M. D. Maloof,
Clayton, Ga. DEAR Sm: Your letter of recent date received and would have answered sooner but for the rush of business in the office. It appears from your letter that on certain days in each week you auction off a portion of your goods in the store where you carry on your mercantile business, and that you auction off your own goods. You wish to know whether or not under this State of affairs you are liable for the tax required by Section 923 of the Code of this State. In reply, I will say that the answer to this question depends on a definition of the term ''carry on business." Under the rulings of the courts a single auction sale would not constitute the carrying on the business of an auctioneer. 160 U. S. 149; 118 Fed. 239; 26 Fed. Cas. 556; 47 Ala. 533; 55 Ala. 118-119. However, the conducting of a series of such sales would be carrying on such business according to the rulip.gs of the courts. This would not be changed by the fact that you conduct the auction sales in your own place of business. In this connection see: Horsely vs. Woodley, 12 App. 456; Ford vs. Thomaston, 11 App. 359; Abel vs. State, 90 Ala. 631; Napier vs. State, 63 S. C. 60; U. S. vs. Wittig, 28 Fed. Cas. 744.
Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
A person can not hold the office of postmaster and justice of the Peace at the same time. (Section 160, Postal Laws and Regulations.)
Atlanta, Ga., January 4, 1915. Mr. J. H. Crisp,
Fender, Ga. DEAR Sm: I have your letter of recent date enclosing a copy of a letter from the Assistant Postmaster-General of the United State. It appears that you are postmaster at the office at Fender, Ga., and while holding the same have been elected or appointed Justice of the Peace. You wish to know whether in
~02

my opinion under Section 160 of the Postal Laws and Regulations of the United States you are qualified to hold the position as postmaster if you continue to hold the office of Justice of the Peace. Section 160 of the Postal Laws and Regulatl.ons is as follows:
"No person holding an office under the Post Office Department shall accept or hold any elective office under any State, territorial or municipal government (including the offices of alderman, coun cilman, etc.) even though no compensation may attach thereto, and no such person shall accept or hold such office by appointment."
It thus appea~s that the inhibition is against holding an office that is elective. The office of Justice of the Peace is an elective office. Sections 115, 116, 117, 118 of the Code of 1910. The fact that Justices of the Peace are commissioned by the Governor . does not prevent the office from being elective. Most of the State and County officers are commissioned by the Governor, but they are still elective officers.
I judge from the letter from the Assistant Postmaster-General and from your letter that you were appointed Justice of the Peace to fill an unexpired term under the provisions 4662 of the Code. If this be true, the .office itself is still an elective office even though the present incumbent is filling an unexpired term by appointment. The Section of the Postal Laws and Regulations referred to prohibits the postmaster accepting or holding any elective office. It is the character of the office itself, as to whether or not it is elective, that controls in this matter. The very words of the law itself makes this very plain. They are ''and no such person shall hold or accept such office by appointment." That is, no such person shall accept or hold any elective office by appointment evidently referring to cases in which a person may be appointed to fill an unexpired term in an elective office.
You will understand that this is not an official opinion as I could not furnish an official opinion on matters relating to the administration of the Federal Government.
. Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
303

No money can be paid out of the Treasury except upon appropriation
.Atlanta, Ga., January 8, 1916. Hon. J. M. Warren, Ordinary,
Abbeville, Ga. DEAR SIR: Your letter of recent date addressed to the Governor, asking for information as to the failure of the State to pay to the Ordinary the fee of one dollar for each pensioner on the rolls has been turned over to me for reply. It is true that the General .Assembly passed the .Act of 1914 referred to in your letter, but upon investigation I find that no appropriation has ever been made to make these payments. No money can be paid out of the Treasury without an appropriation therefor. The Treasurer could not pay the money and the Governor has no authority to draw the warrants. For this reason the payments have not been made. It may be that the next General .Assembly will make this appropriation, and in that event the fees will be paid. I hope the above will give you the information you desire.
Vcry truly yours, CLIFFORD WALKER, .Attorney-General.
The law gives one a right to work in another county and maintain his citizenship in his home county.
January 25, 1916. Hon. J. W. Cole,
Americus, Ga. DEAR SIR: Replying to your inquiry of recent date, I beg to advise that under the conditions named in your letter, it is clear that you are still a citizen of Paulding County, and are entitled to vote and enjoy all other privileges of a citizen. The law gives one the right to work in another county a part of the year, and still retain his citizenship in the county of his choice if he registers, pays his taxes, maintains a bona fide intention to retain his citizenship and claim his home in the latter county, making that intention known when he leaves the county to do the work, and while he is away-and on his return.
Very truly yours, CLIFFORD wALKER, .Attorney-General.
304

Church property bearing an income is taxable.

w: Mr. H. Venable,

February 1, 1916.

Commerce, Ga., R. F. D.

DEAR SIR: Replying to your favor of recent date, I under-

stand the rule to be that any church property bearing an in-

come is taxable. The church building, grounds, cemetery and

parsonage, when owned and occupied by the pastor and bring-

ing no rent income, should not be taxed.

After all the basis of taxation is uniformity. Certainly some

of the parsonages should not be taxed and others taxed. You

will not have so much right to complain if all parsonages are taxed. However, the rule stated above is my understanding

of the law.

Trusting this will give you the information you desire, Very truly yours,

CLIFFORD 'WALKER,

Attorney-General.

Where there is a plantation on the line between two or more counties taxes are paid where the improvements or most of the improve. ments are.
Atlanta, Ga., 'February 1, 1915. Mr. Stanford Bland,
Clerk Commissioners Roads and Revenues, Metter, Ga.
DEAR SIR: I have your letter of recent date asking whether or not persons who own tracts of land on a county line be. tween Candler and Tattnall Counties can refuse to pay taxes on their property located in Candler County to the latter county. In reply I will say that according to the provisions of Section 1065 of the Code of 1910, if the land is all eontained in one plantation, the returns are to be made and the tax paid in the county ''where the improvements or most of the improvements are.'' In this connection see the case of Robson vs. DuBose, 79 Ga. Rep., page 721. If the land is not embraced in one "plantation," then the returns thereon are
305

to be made and the taxes paid in that county in which the land lies. See Section 1068 of the Code.
Your letter would have been answered earlier but for the fact for the last month I have been busily engaged in the litigation to prevent the paralleling of the Western & Atlantic Railroad, the property of the State.
-Very truly yours,
CLIFFORD wALKER,
Attorney-General.
Where there is a dispute as to the boundary line between two coun ties and taxes are paid to the wrong county, such taxes rna)' be recovered back through proper proceedings.
Atlanta, Ga., February 1, 1916. Mr. Stanford Bland,
Clerk Commissioners Roads and Revenues, Metter, Ga.
DEAR SIR: I have your letter of recent date asking my opinion as to the proper method of proceeding to recover certain taxes belonging to Candler County which have been paid to Tattnall County on account of the fact that there was a dispute between these counties as to the location of the boundary line. In reply I will say that in my opinion the best method would be to .proceed against Tattnall County or its officers to recover these taxes. You are doubtless aware that Candler County could not recover and would not be entitled to the taxes for the year in which Candler County was created. Tn t:Q.is connection see the case of Tift County vs. Berrien County, 131 Ga. Rep., page 259.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
306

Judgments of Justice Courts rendered, in any civil cause, anywhere else than at the place for the holding their courts lawfully appointed are void.

Atlanta, Ga., February 1, 1916. Mr. W. B. Ingram,
Justice of the Peace. DEAR Sm : I have your letter of a few days ago requesting my opinion on the question as to whether or not a judgment rendered by a Justice of the Peace is valid and legal if the same is not rendered at some place in the district previously fixed and established according to law. In reply I will say that Section 4705 of the Code of 1910 provides as follows:

"All judgments of such justices rendered, in any civil cause, anywhere else thart at the place for the holding their courts lawfully appointed are void."

It appears from your letter that the Justice Court has been held in the Town of Ellenton, but that it is held at no fixed place in the town, but that it is held at different houses in the town. According to the decision of the Supreme Court in the case of Hilson vs. Kitchens judgments rendered under the circumstances above stated would be void. In that case it was said:

'~As there was no authority for holding court in the Town of Mitchell at any other place than in the house in which the court was first held, a judgment rendered at any other place is absolutely void."

The case above cited appears to be very much like your case, and it might help you to get the case and read it. It will be found in Vol. 107, Ga. Rep., page 230.

I would have answered earlier but for the press of business

in this office.

Very truly yours,

CLIFFORD WALKER,

A ttorneY:-General.

307

Question as to whether or not the School Superintendent is a State or County officer.
February 1, 1916. Hon. J. H. Hall,
Newton, Ga. DEAR SIR: Replying to your favor of yesterday, the question you submit has given us more trouble than any question yet before us. You can understand this when I tell you that the printed reports of the .Attorneys-General show that one of my predecessors has held the School Superintendent to be a State officer and another has held that he is a county officer. The matter turns upon this question, and the authorities are so confusing that to be perfectly frank our office and that of the State School Superintendent believe that only a decision of the Supreme Court will determine the matter. The question is so well balanced that I am advising my friends who inquire to take the chance and run the risk of the question being legally raised and determined in the courts. I regret that I could not give you a clear-cut reply, but the conditions. are as stated herein.
Very truly yours,
CLIFFORD WALKER,
.Attorney-General.
A suit in a Justice Court must be tried in the district of the defendant's residence unless he waives jurisdiction.
February 1, 1916. lllr. W. H. Weaver, Justice of the Peace,
Marion, Ga. DEAR Sm: I have your letter of recent date asking my opinion as to whether or not you are disqualified to try a certain case now pending in your court. As I understand from your letter the defendant does not reside in your district. The Justice of the Peace in the District in which the defendant resides is disqualified. .As the Justice of the Peace is not a party to the proceedings, I am inclined to- think that the case will have to be brought and tried in the district of the defendant's residence. If there is no other Justice of the Peace in the district of the defendant's residence, you would be authorized
308

and qualified to issue all process and preside in that district in the case stated in your letter, but not in your own district if the defendant raises proper objection thereto. In this connection see Code of 1910, Section 4669. Also, see the case of Dozier vs. Allen, 65 Ga. Rep., page 254.
Your letter would have been answered earlier but for the fact that for the last month I have been engaged in litigation trying to prevent the paralleling of the State Road.
Very truly yours,
CLIFFORD \VALKER,
Attorney-Gel!-eral.
An Ordinary cannot refuse t'o issue license for a retail dealer in near beer if the amount of the tax is paid or tendered.
Atlanta, Ga., February 1, 1916. Han. J. R. TVllams, Solicitor-General,
Americus, Ga. DEAR SIR: I have your letter of recent date, asking my opinion on the following question: The Ordinary of your county has _issued an execution against one Petripole for failure to pay the tax imposed on wholesale dealers in "near-beer" under Section 983 of the Code of 1910. Petripole is contesting the validity of this execution and during the pendency of the proceedings, he has made application for a license as a retail dealer in ''near beer'' under Section 984 of the Code. The question is whether or not the Ordinary can refuse to issue this license for a retail dealer in near beer if the amount of the tax is paid or tendered? I have looked into the matter and can not find any valid reason or law authorizing the Ordinary to refuse to issue this license if the tax is paid and the law otherwise complied with. I do not think the Ordinary has any discretion in the matter. I am sorry that my answer to your letter has been delayed, but for the last month I have been at work very hard in the litigation to prevent the paralleling of the Western & Atlantic Railroad.
Vcry truly yours,
CLIFFORD WALKER,
Attorney-General.
309

A foreign corporation engaged in the business of buying wages is not subject to a professional tax.
February 2, 1916. Messrs. Parker, Walker & Parker,
W ayoross, Ga. GENTLEMEN: Your favor of 25th ult., was not answered promptly because I was engaged in court on the L. & N. litigation. Replying thereto, I beg to say that the tax on loan agents is required under Section 2, Paragraph 18, of the Tax Act. The tax on the President is a personal occupation tax required under Section 3 of the Act and is legal. The third (professional) tax sought to be collected seems not to be authorized. If it is predicated on Paragraph 32, it is not legal as the taxes 'on foreign corporations are paid through the Comptroller-General's office and the records of that office show that this corporation has registered and paid the tax for several years. I can find no basis for the charge in the law. The Comptroller-General agrees with me and the Tax-Collector will be authorized to relieve the payment of the tax unless he can cite us to other authority in which case I will be pleased to confer with General Wright and advise him promptly. With an expression of the writer's high regard.
Very truly yours;
CLIFFORD wALKER,
Attorney-General.
Residents of a territory recently withdrawn from the limits of the city by an Act reducing the size of the city are liable for the city taxes, if they were within the limits of the city at the time fixed for the return of taxes for the year.
February 5, 1916. H. L. Causey, Esq., Attorney,
Alma, Ga. DEAR Sm: Replying to your favor of the 2d inst., I am of the opinion that- the residents of territory recently withdrawn from the limits of your city by an Act reducing the size -of the city will be subject to city taxes if they were within the
310

corporate limits of the city at the time fixed by the city for return of taxes for the year. You can ascertain just what time this was, and determine the matter accordingly.
You will recall that the Code permits the Atto.rney-General to render official opinions only on request of the Governor. However, I give you this as my personal opinion on the matter.
Very truly yours, CLIFFORD "\V.ALKER, Attorney-General.
School district could legally issue bonds to purchase and build a school building.
February 5, 1916.
Ohas. Pigue, Esq.,
Statesboro, Ga. DEAR Sm: I deeply regret that my connection with the L. & N. litigation has been such that I could not possibly give attention promptly to my mail for the last few days.
Responding to your favor of January 28th, you will note that the law does not permit me to give official opinions except on request of the Governor. However, I am glad to give you my personal views on the question submitted by you.
I am of the opinion that the school district could legally issue bonds to purchase as well as to build a school building. The school district could proceed under the law as for the building of a new school building. See Acts _of 1912, page 176. Having so proceeded and collected the money on the bonds, they could purchase from the City the present building. I believe the above to be within the substance of the law and that it will be sustained.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.

A citizen is not automatically dropped from the registration Jist if he does not pay his taxes on or before December 20th, but will be given until the registration books are closed the following year. A person who has not paid his 1915 taxes cannot vote in the primary of 1916. A person must reside six months in a county before he can vote. A person registered on the "Per manent Registration Book" remains registered until disquafi fied for non-payment of taxes or otherwise.
February 5, 1916.
Hon. 0. 111. Davis, Tax-Collector, Renfroes, Ga.
DEAR Sm: Replying to your favor of yesterday I beg to say:
1. The Courts have not interpreted the permanent registration law as yet, but it is my opinion that they will hold that a citizen is not automatically dropped from the registration list if he does not pay his taxes on or before December 20th. I am inclined to think he will be given to the time of closing the registration list the following year before striking him from the permanent registration book. Of course, if he has not paid his tax at that time he will automatically be stricken from the permanent book and he will then have to pay his tax and register again before he can vote.
2. ' Those who have not paid their 1915 taxes can not, in my opinion, vote in the Primary for 1916.
3. If a man moves his family out of a county and carries his citizenship, on returning, he must reside in the county six months and register again before he can legally vote.
4. The law requires you to keep open a "Permanent Regis-
tration Book.'' Since the passage of the law a citizen once regis-
tered remains registered until disqualified from non-payment of taxes or otherwise. He is then stricken from this permanent book and can not legally vote till he has removed his disqualification and registered again. For this registration you will be entitled to collect the usual fee.
Trusting this is the information you desire, with kind personal regards.
Very truly yours, CLIFFORD WALKER, Attorney-General.
312

Ordinaries' fees cited.

February 6. 1916. Judge Frank B. Jones, Ordinary,
Jesup, Ga. DEAR SIR: Only today have I had a moment's relaxation since I received your letter. I regret the delay and trust you have not been embarrassed thereby.
I have checked over the Code with considerable care and find that compensation for Ordinaries is fixed in the following Sections:

73, 125, 776, 827, 1201, 1728, 1787, 3101, 5328, 5330, 3447.

I would suggest that you go over all of these Sections as you may not have been collecting fees due you.
Of course, the main Section is 4827. The following items seem to apply to Guardianship :
For receiving application and granting citation ........... $1.25 For taking and recording administrators' or guardian's bond 1.00 For issuing letters of guardianship. . . . . . . . . . . . . . . . . . . . . . . 1.00 For recording the same. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50

These seem to be the only items which touch directly on guardianship. The fee bill (Section 4827) also provides:
"For every service required and performed, for which no fees are specified by law, the same fees as are allowed Clerks of the Superior Courts. for similar services, or for a like amount of labor."

This contemplates such payment where no fee is fixed in the

present fee bill.

will If you have any specific item or question write me in detail

and I

try to give you a more definite reply.

Very truly yours,

CLIFFORD WALKER,

Attorney-General.

313

A person relieved of tax under Section 994 of the Code could legally cond~ct a family grocery or a jeweler's repair shop.
February 7, 1916. Judge J. A. Drewry, Ordinary,
Griffin, Ga. DEAR SIR: Your favor of 1st instant would have been answered earlier but I was engaged in court trying the L. & N. R. R. case. Replying thereto, I beg to say that, in my judgment, -a person relieved of tax under Section 9'94 of the Code could legally conduct a family grocery or a jeweler's repair shop. Indeed, they may conduct any business not expressly excepted. (All taxes imposed under the police powers like licenses to run a pool table, carry a pistol, etc., are excepted.) Neither a Confederate soldier nor a maimed or blind man may be exempted from license taxes on such businesses. They are exempted under the law from all other taxes. If I have not covered what is in your mind I will be gtad if you will write me again.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
Under the prov1s1ons of the Permanent Registration Act a citizen once registered is always registered unless disqualified In some manner as prescribed by Jaw.
February 16, 1916. Hon. RobertS. Cook, Tax-Collector,
Cusseta, Ga. DEAR SIR: Replying to your favor of the .4th inst., I beg to say that the law permits the Attorney-General to give official opinions only on request of the Governor. However, I do not mind giving you my personal views on the question submitted by you. Any citizen who has registered since the passage of the permanent registration Act is permanently registered unless disqualified, in some manner known to the law. When disquali. tied he must remove his disqualification and register anew. I
314

believe the intention of the registration law was that within a reasonable time for each election the Tax-Collector should present to the registrars a list of those names appearing on the permanent registration book. The registrars then should, within a reasonable time, purge this list of disqualified voters and make up a registration list for the use of the managers of the election.
Very truly yours, CLIPFORD wALKER, Attorney-General.
Section 920 prohibits a municipality from levying an additional tax on doctors, dentists and other professional men, enumerated therein.
February 23, 1916. Hon. A. H. Graham, Clerk of Council,
Dublin, Ga. DEAR SIR: I have your letter of recent date, asking whether or not a municipality is authorized to levy a special tax; upon doctors, lawyers, and other professional men. In reply thereto, I will say that your question is answered by Section 920 of the Code, which provides among other things, to wit: "No municipal corporation or county authorities shall levy an additional tax on the profession and officials enumerated in this and the two preceding Sections, either as a license tax or fee otherwise.'' The two preceding Sections referred to impose a tax upon lawyers, doctors, dentists and other professional men. I hope the above will give you the information you desire.
Very truly yours, CLIFPORD WALKER, Attorney-General.
315

1. In an election called to be held before the date set for the registrars to purge the registration Jist the Jist used at the last previous regular election should be used in such election provided it be purged by the registrars before so using it.
2. In such an election duly registered voters on such list, who have failed to pay their taxes before the list is so purged, may prevent their names being stricken from such list by paying such taxes at any time before the list is so purged.
Atlanta, Ga., February 23, 1916. Han. A. F. Byrd, Ordinary,
Baxley, Ga. DEAR SIR: I have your letter of recent date asking my opinion in the matter of your county primary. It appears from your letter that the Executive Committee of your county has called the primary for the nomination of candidates for the county offices for the 3rd day of 1\fay, 1916. As this date is prior to the date fixed by law for the registrars to purge the registration list and to make out a new list for the years 1916 and 1917, you wish to know whether or not the persons whose names are on the list for 1914 are entitled to vote in this election and whether or not the said registration list for the years 1914 and 1915 can be used in this election? You will note that Section 59 of the Code provides that the list prepared for the general election for 1914 can be used for all elections for that year held after the making and purging of the list and for all elections held during the year 1915. However the Act of the Legislature of 1913 (Acts 1913, page 115) provides for a permanent registration list. This law further provides that this permanent registration list as well as the supplemental registration lists that may be furnished by the Tax-Collector for each year shall be purged by the Registrars. Now, I am of the opinion that the registration list for the year 1914 considered as a permanent registration list may be used in the election you refer to, but that before it can be used for this election to be held in 1916 it is necessary that it be purged as required by law by the County Registrars. You also ask my opinion as to whether or not those persons whose names are on the old list, but who have not paid their taxes for the year 1915, are entitled to vote in this election? As you know, the law requires that taxes be paid by the 20th of December of each year, and that after that date if the taxes are not paid the Tax-Collector is authorized
316

to issue executions. Under Article 2, Section 1, Paragraph 3 of the Constitution of this State, I am of the opinion that it is the duty of the Registrars to strike from the said registration list the names of the persons who have not paid their taxes for the year 1915. However, I am of the opinion these 'persons can now pay their taxes and prevent the striking of their names from the said list and thus preserve their right to vote in the said primary, since said election is to be held "within six months from the expiration of the time fixed by law for the payment of the taxes.'' See paragraph of the Constitution above referred to.
Very truly yours,
CLIFFORD \VALKER,
Attorney-General.
The Ordinary must call an election for the purpose of voting on the question of suspending the operation of the four days' road law whenever a petition is filed with him, signed by 150 or more voters of the county asking for such election.
February 23, 1916. Hon. T. 111. Boaz,
Calhoun, Ga. DEAR Sm: I have your letter of recent date in which you say that Gordon County is now operating under what is known as the four days' road law, and that recently an election was held for the purpose of suspending the operation of this law and that by a small majority the effort to suspend the law was defeated. You wish to know how soon another election may be called and held on this question. I have examined this law very carefully and I do not find any provision in the same regulating the length of time that must intervene between elections for this purpose. Section 711 of the Code provides ''On the filing of a petition with any Ordinary in this State, signed by 150 or more voters, of the said county, asking for an election to be held to determine whether the plan provided by this Article for working the public roads shall be suspended or not, the said Ordinary shall make an order providing for an election and shall appoint a day for the same, etc." In the
317

absence of any other provision on this subject relating to the

time of holding such election, I am of the opinion that such an election may be called and that it is the duty of the Ordinary to call such election at any time a petition is filed with the

Ordinary signed by 150 or more voters of the said county ask-

ing for such an election.

Very truly yours,

CLIFFORD WALKER,
Attorney-General.

The Registrars should purge list before being used.
February 23, 1916. Hon. Jno. L. Barrett, Tax-Collector,
Gainesville, Ga. DEAR SIR: I have your letter of recent date asking for some information with reference to your county primary. You wish to know whether or not the primary to nominate candidates for county offices can be called and held prior to the time fixed by law for the closing of the vote~:'s books and the purging of the registration list for the year 1916. In reply I will say that in my opinion it was the intention of the Legislature that these elections should be held after the registration list has been made up by the Tax-Collector and the list purged and perfected by the Registrars. However, I am not willing to say that these county primaries can not be legally held before this time. The Act of the Legislature of 1913 (Acts 1913, page 115) provides for a permanent registration list. If the election is held before the time indicated above, it is necessary to use the registration list for the years 1914 and 1915. Considering this list as a permanent registration list, I am of the opinion that it can be used in the primary election referred to above. However, I think that if this list is to be used, it will be necessary for the registrars to purge the same before it can be used in the said election.
Very .truly yours,
CLIFFORD wALKER,
Attorney-General.
318

A citizen temporarily out of the State cannot register by proxy.

February 24, 1916.

Hon. F. R. Longstreet, Gainesville, Ga.
DEAR Srn: Replying to your favor of the 9th inst. we regret to advise that we are unable to find any authority for a citizen temporarily out of the State registering by proxy. This seems particularly hard on a citizen. in the employ of the

Government at Washipgton. However, we can find no authority

to the contrary.

Very truly yours,

CLIFFORD WALKER,
Attorney-General.

No State law forbids the operation of pool and billiard rooms in cities and towns having a population of fifteen hundred or less. State license is $50.00 per year on each table.
February 24, 1916. Mr. L. A. Broeks,
Lithonia, Ga. DEAR Srn: Your letter of recent date regarding the State laws on the subject of pool and billiard rooms has been received. In reply, I 'will say that I know of no State law which forbids the operation of pool and billiard rooms in cities and towns having a population of fifteen hundred or less. The State license is fifty dollars per year on each table.
- Very truly yours,
CLIFFORD WALKER,
Attorney-General.

Where judgment has been entered of record and the Court adjourned, the Court has no power to reduce or suspend the sentence.
February 24, 1916. Hon. Joe M. Moon,
Cartersville, Ga. DEAR Srn: Your favor of the lOth inst., addressed to the Governor, has been handed to me for reply. In response there-
319

to I beg to say that the Courts have held in cases involving a

suspension of sentence that where judgment has boon entered

of record and the Court adjourned, the Court has no power to

reduce or suspend the sentence. It is probably true that the

sentence is in the breast of the Court before adjournment and

the sentence entered on the records. It is clear that after ad-

journment the sentence cannot be reduced.

This matter was passed upon in the case of Leopard v. State

from Clarke County. If I can be of any further service I will be pleased to have

you write me.

Very truly yours,

CLIFFORD WALKER,

Attorney-General.

A citizen who is otherwise entitled to vote would not be ineligible to hold a county office because of his failure to register.
Atlanta, Ga., February 26, 1916. Hon. W. E. Guerard,
Savannah, Ga. DEAR SIR; I have your letter of the 21st inst. regarding the matter of the registration of candidates for office, and the same would have been answered sooner but for the fact that I have been absent from the city on legal business for the State. The matter you ask about has been passed upon by one of the former Attorney-Generals of the State and as he cites the authorities in his opinion I will quote a part of that opinion in answer to your question. He says :
"The Constitution of this State provides in Section 5929 that all county officers must be bona fide residents of the county two years, and qualified voters. In conformity with this provision of the Constitution the Legislature passed an Act, embodied in Civil Code of 1910, Section 258 (7), which substantially conforms to the terms of the Constitution above referred to. In 1900, the Legislature amended Section 258 (7) and added at the end of said paragraph the words 'entitled to vote.' This amendment contained in the Acts of 1900 might have confused the question and rendered it doubtful if the very words which were added .by the ~said amendment had not been construed by our Supreme Court."
320

In the case of Mayor and Council of Madison vs. Waae, 88

Ga. 699, the Supreme Court of this State declares: "Registration

adds no qualification to voters, but only serves to identify them

as persons qualified to vote." So that it is clear that a person

may be a qualified voter and, though not registered, be eligible to

holU a county office.



Likewise in the case of McMahon et al. vs. The :Mayor etc. of

Savannah, 66 Ga. 224, the court used the following language:

"The new requirement of a registration has been held not to be

the addition of a qualification to an elector." Citing authorities.

"It is but a means of carrying out the registration law and

strictly in unison with the purpose, which are io provide for the

proper designation and ascertainment of a voter in municipal

elections. While it may not be, and is not, in the province of the

Legislature to prescribe a new qualifi~'ltion for an elector, it

certainly is within the scope of their authority to regulate the

mode and manner of conducting elections."

In the case of Davison vs. City Cour;dl of Dawson, 99 Ga. 817,

the Supreme Court of this State declares: "The word 'entitled'

as used in the phrase 'entitled to vote for members of the Gen

era] Assembly' should be construed as meaning 'Qualified,' and

registration adds no qualification to voters, but only serves to

identify them as persons qualified to vote."

In view of the interpretation which our Supreme Court has

placed on the words "entitled to vote"-construing them to mean

"qualified to vote"-! am of the opinion that a citizen who is

otherwise qualified to vote would not be rendered ineligible to

hold a county office because of his failure to register."

I think the above opinion sets forth the law on the subject

as declared by the Supreme Court of this State, and I there-

fore adopt the same as my own in reply to the question pre-

sented in your letter.

Very truly yours,

CLIFFORD WALKER,

Attorney-General.

Laws regarding the keeping of permanent qualification book for voters.
March 1, 1916. Hon. H. J. Read,
Brunswick, Ga. DEAR SIR: Replying to your favor of the 27th ult., a reading of the Act of August, 1913 (Acts of 1913, Page 116), will make it clear that you are right in your contentions.
321

That .Act requires ''Tax-Collectors to keep a Book to be called the permanent qualification book.'' It further requires that Board of Registrars ''~hall be charged with the duty of examining each two years the qualifications of each elector entered thereon.'' It further requires that the Tax-Collector shall make up a list of voters appearing on such permanent books who have paid all taxes required of them at least six months prior to the election. (Section 2.)
Section 3 provides that the voters who have qualified and signed the Permanent Qualification Book shall not thereafter be required to register again unless they have been disqualified and stricken from the permanent book by the Board of Registrars.
In other words six months before the election the Registrar shall strike from the permanent book all electors who have not paid all taxes required of them. All others are. entitled to vote.
I hope I make myself plain. Very truly yours, CLIFFORD WALKER, .Attorney-General.

The Collection of poll tax Is not necessarily incident to a right to vote.

Mr. J. R. Allen,

March 1, 1916.

Riverdale, Ga.

DEAR SIR: Replying to your favor of the 24th ult., I regret

that I have to advise that the collection of Poll Tax is not

necessarily incident to a right to vote.

The language of the law is that a Poll Tax of $1.00 is levied

"Upon each and every male inhabjtant of the State between twenty-one and sixty." Only the blind and those who have

lost a limb are excepted. Section 917 Code of 1910. If I can serve you further at any time call on me.

Very truly yours,

CLIFFORD WALKER,

Attorney-General.

322

Municipalities In this State are not authorized to levy and collect an occupation tax upon commercial railroads doing business in such municipalities.
March 1, 1916. Hon. R. M. Dennard,
Pineview, Ga. DEAR Sm: Replying to your favor of 26th ult., in the case of Arlington vs. Central of Georgia, 127th Georgia, page 721, the Supreme Court made the following ruling :
"Following the ruling in Augusta vs. Central Railroad, 78 Ga. 119, there is no authority vested in any municipality in this State to levy and collect an occupatiop tax upon a commercial railroad doing business in such municipalities."
This ruling does not seem to apply to express or telegraph companies.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
In order to qualify as a voter a man must register and pay all taxes required of him six months prior to an election.
March 1, 1916. Hon. P. J. Pughsley, Jr., Tax-Collector,
Lyons, Ga. DEAR Sm: Replying to your favor of recent date, in order to qualify as a voter a man must have paid all taxes which the law imposes upon him six months prior to an election. The young men should pay all Poll Taxes due in the past. Also Ad valorem Tax, if they own any property. Newcomers should register anew in the new county. Once registered they remain permanently registered unless stricken by registrars for some disqualification.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.

The Solicitor of a City Court is a State Officer and his term of office is not altered by the recent Act of the Legislature.
March 10, 1916. Hon. W. Woodrum,
Millen, Ga. DEAR SIR: Replying to your favor of the 3rd instant, the courts have ruled that the Solicitor of a City Court is a State Officer and in my judgment, the term of office of such Solicitors has not been altered by the recent Act of the Legislature.
Very truly yours, CLIFFORD WALKER, Attorney-General.
A County Treasurer is not entitled to commissions on money not pass ing through his hands.
Atlanta, Ga., March 13, 1916. Messrs. Daniel & Daniel, County Attorneys,
Claxton, Ga. GENTLEMEN: I have your letter of recent date, in which you ask my opinion on the f~llowing questions : The office of County Treasurer was abolished by the Legislature, to take effect on the 1st day of January, 1916. The Tax-Collector is required, under the law, to make his monthly statements on the first Monday in each month, beginning on the first Monday in October in each year. Code Section 1214. At the time the Tax- Collector makes his monthly statements, to wit: on the first Monday in each month, he is required, under the law, to pay over to the Treasurer the amounts in his hands, leaving th fractions of hundred dollars in his hands. Code Section 1215. As the Tax-Collector in this case did not pay over to the Treasurer the amounts in his hands which were collected during the month of December until the first Monday in January, 1916, and at that time the office of Treasurer had ceased to exist, the question is: Should the Treasurer be paid his commissions on the taxes collected during the month of December but not paid over by the Tax-Collector until the term of office of the Treas-
.:>24

urer had expired, i. e., on the first Monday in January, 19161

Section 588 of the Code provides that the Treasurer shall be

paid certain commissions on all sums received by him and cer-

tain commissions on all sums paid out by him.

In the case presented by you, none of the money involved had

been either received or paid out by the Treasurer. While in this case it seems hardly fair and just to the Treasurer that he

should receive no commissions on this money, still you have

. asked me for a strictly legal opinion on the matter, and I am obliged to say that under the law, as it is written, I do not

think he is legally entitled to any commissions on this money.

It is simply the misfortune of the Treasurer in a peculiar situa-

tion. In this connection see the case of Taylor vs. Lee, 107.Ga.

Rep., page 362.

Very truly yours,

CLIFFORD wALKER,
Attorney-General.

A municipality may levy a reasonable business tax on a telephone company doing business in such a municipality.

Atlanta, Ga., March 13, 1916.

Mr. 0. R. Sikes, Glennville, Ga.
DEAR SIR: I have your letter of recent date, in which you ask whether or not a telephone company operating under the regulation of the Railroad Commission of the State is subject to an occupation tax imposed by a municipality in which it is

carrying on business. In reply, I will say that such a company

is subject to such a tax on business done in a municipality pro-

vided the tax imposed is reasonable. In this connection see the case of Postal Telegraph Company vs. City of Savannah, 133

Ga. Rep., page 66.

Very truly yours,

CLIFFORD WALKER,
Attorney-General.

325

In the valuation of a life estate under the Inheritance Tax Law it is proper for the Ordinary to take into consideration the physical condition of the person entitled to such estate.
Atlanta, Ga., l\farch 13, 1916.
Hon. Raiford Falligant, Attorney-at-Law, Savannah, Ga.
DEAR Sm: I have your letter of recent date requesting my opinion on the question as to whether or not in fixing the value of a life estate for the purpose of taxation under the inheritance law, it is proper and legal for the Ordinary to take into consideration the ill health, disease, or physical infirmity of the person entitled to such estate, if such exists, or whether the expectancy is to be determined solely by the mortality tables without regard to the physical. infirmity of such person. In reply I will say that in my opinion, the mortality tables are to be used in all cases as provided by Section 4 of the Act approved August l::l, 19'13 (Acts 1913, page 93). However, I think that these tables would be absolutely binding only in the case of a person of normal health and strength. The purpose of this provision of the Act is to determine the expectancy of life of the person holding the estate. All the circumstances of the case are to be taken into consideration by the Ordinary and the expectancy of life determined by the mortality tables in the light of all the circumstances relating to the health, etc., of the holder of the life estate. The Supreme Court of this State has frequently held that in cases of permanent injuries and death by wrongful act the mortality tables are not binding on the jury in fixing the amount of damages, but where the jury desires to use these tables they may do so, and in that event it is the duty of the jury in estimating the probable length of a given man's life to take into consideration his health, occupation, habits and surroundings just as they are disclosed by the evidence.
Fla. Central R. R. Co. vs. Burney, 98 Ga. 1 (Ia.). Savannah, Florida and Western Ry. Co. vs. Austin, 104 Ga., page 614. Merchants and Miners Trans. Co. vs. Corcoran, 4 Ga. Apps., page 654.
To make these tables absolutely binding in all cases without regard to the circumstances above alluded to would in many
326

cases be unjust and unfair, where the health and strength of the person is below normal. In fact the expectancy of a man in a dying condition .would thus be held to be the number of years set out in the table, whereas, the real expectancy of the life would be a matter of only a few days. I do not"think that it was ever the intention of the Legislature in passing this .Act that any such rule should be applied.
Very truly yours, CLIFFORD wALKER, .Attorney-General.

Automobiles owned by a county must bear the regular State license

tags.

March 18, 1916.

Han. Geo. T. Oann,

Savannah, Ga.

_

DEAR SIR: Re Tags County .Automobiles. Replying to your

favor of- recent date, March 9, 1916, I have not been able to

find any law which will exempt the counties from the tax. I

have advised with the Secretary of State and he states that

the Counties of Fulton, Bibb, Richmond, etc., uniformly pay

the tax and he is of opinion that the counties should continue

to pay. It would have an unwholesome effect if they were ex-

empted, as casual observers would not know of the ownership

and be led to believe that the law was not being enforced.

Very truly yours,

CLIFFORD WALKER,

.Attorney-General.

Interpretation of the Act requiring public officials to report and file



statement of the fees collected by them. Citizen is entitled to'

inspect such records in the Comptroller-General office.

March 18, 1916. Han. Ben J. Fowler,
Macon, Ga. DEAR SIR: I regret that absence from the ~ity on official business has delayed my reply to your favor of recent date. While the Code directs the .Attorney-General to render offi.-
327

cial opinions only on request of the Governor, it is my pleasure to respond to such requests as yours;
My interpretation of the Act requiring public officials to report and file a statement of the fees collected by them (Acts of 1912) is that the Act was passed for the purpose of pro. viding information from which the people could determine whether the fee system should be abolished; in other words whether in any case an official was receiving more compensation than the work of his office justified.
I understand that you desire certain information from such reports to use in informing yourself and the voters on this very question and I am clear that you are entitled to inspect the records and obtain a transcript of the same. The Comptroller_ would probably have the right to direct the preparation of such a transcript and make usual charges therefor, but there is nothing illegal in his allowing you to make such a copy and then certify to its correctness if he wishes so to do.
Trusting this is the information you desire, Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
A member of a County Board of Tax-Assessors is ineligible to hold any other office during such time as he is a member of such Board and for twelve months thereafter.
Atlanta, Ga., March 21, 1916. Mr. J. W. Montgomery,
Preston, Ga. DEAR SIR: I have your letter of recent date asking how long a member of a County Board of Tax-Assessors is ineligible after the expiration of his term of office to hold a State, county or municipal office in this State. In reply, I will say that the law on this subject reads as.follows (Acts of 1913, page 125).
"The members of said board during the time they hold their office and for one year thereafter shall be ineligible to hold any State, county, or muncipal offi~e, but they may be re-appointed to succeed themselves as members of said board."
You will note that under the law, as above quoted, the mem-
328

bers of this board are rendered ineligible to hold a State, county or municipal office during the time they are members of the board and for one year after they cease to be members of the board. If a person ceased to be a member of the. board on January 1st, 1916, so far as this law is concerned, h~ would be eligible to hold a. State, county or municipal office, whose term begins January 1st, 1917. If the person continues in office until his successor is duly elected and qualified, then he would be ineligible for one year from the time he ceased to hold the office of Tax-Assessor. The period in all cases runs from the time the person ceases, in fact and in law, to hold the said office. I hope the above will give you the information you desire.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
A municipality can not collect a specific tax from a national bank.
Atlanta, Ga., March 22, 1916. Hon. S. J. Crouch, Mayor,
Statesboro, Ga. DEAR Sm: I have your letter of recent date asking my opin- ion as to whether or not the First National Bank of Statesboro is liable for a special municipal tax. You also enclose a copy of the ordinance Jmposing the tax. The bank is a national bank and the tax is an occupation tax, or a tax not upon the property of the bank, but upon its business. In reply, I am obliged to say that under the decisions of the Supreme Court of Georgia and the Supreme Court of the United States the city can not impose or collect this tax. The question has been before the Supreme Court of Georgia at least twice. In the case of Mayor etc. of Macon vs. First National Bank of Macon, 59 Ga., page 648, it was said :
"Whilst the property owned by the bank may be taxed by State authority, and the shares owned by the stockholders may also be taxed, the business of the bank-its right to operate and do banking business-ean not be taxed by the States. The distinction between the right to tax property and that to tax business in case of agencies working under Federal authority is well settled, we think."
329

In the case of Johnston vs. Mayor etc. of Macon, 62 Ga., page 650, the Court says :
"It (the municipality) could not tax the business of the national bank, because it was chartered by Congress, and the Government of the United States used its business for their fiscal operations, or could use it, and any interference by State taxation might, if allowed at all, amount to prohibition-by making the tax so high as to be prohibitory."
See also, the case of Linton vs. Childs, 105 Ga., page 567.
Very truly yours,
CLIFFORD WALKER, Attorney~General.
1. Tax-collectors are entitled to receive the specified commissions on all digests
2. A pardoned convict must pay a poll tax for each year between the ages of twenty-one and sixty years in order to entitle him to register and vote.
Atlanta, Ga., JI.Iarch 23, 1916. Mr. J. H. Hollingsworth,
Georgetown, Ga. DEAR Sm: I have your letter of recent date, asking whether you, As Tax-Collecto.r of Quitman County, are entitled to commissions on certain taxes under the following circmp.stances: In 1914, certain taxes amounting to $1,068 for the County of Quitman were assessed against the Central of Georgia Railroad. The railroad refused to pay this amount and carried the matter to court. Later the case was settled and the railroad paid to the county $356.16. The money was not actually paid to you as Tax-Collector. The question is: Are you entitled to your commissions on this latter a:rp.ount? In reply, I will say that in my opinion you are entitled to your commissions on the amount collected. Section 1234 of the Code provides that the Tax-Collector is to receive certain specified commissions on "all digests." The taxes mentioned certainly form part of the digest mentioned in this Section. Under Section 1039 of the Code it is provided that all taxes on railroads due a county are to be paid to the TaxCollector of the county. These taxes should have been paid to you, and the mere fact that they were paid in some other way
830

is not sufficient in lliw to defeat your right to the commissions provided by law.
The second question asked in your letter is whether or not it is necessary for a person who has. been convicted of a felony and served in the Penitentiary for a number of years i.n the State of Georgia, and later was released or served out his term, and has received a pardon from the Governor of the State, to pay his poll tax for the time he was incarcerated, before he is authorized to register and vote. As to this question, I will say that Section 917 of the Code of this State imposes a poll tax upon each and every male inhabitant of the State, between the ages of twenty-one and sixty years, except persons who have lost a limb or limbs or the use of the same in the military service of the Confederate States. There are no other exceptions. The tax, therefore, se!)ms under the law to be required of persons serving a term of service in the Penitentiary. Par. 3 of Section 34 of the Code provides, among other things, that to entitle a person to register and vote at any election; he ''shall have paid all taxes which may have been required of him since the adoption of the Constitution of Georgia of 1877 that he may have had an opportunity of payi~g agreeably to law." Under the above stated Sections of the Code, I am of the opinion that it would be necessary for the person to pay the poll taxes from the time he became twenty-one years of age, including the time he spent in the Penitentiary, in order to register and vote.
I hope the above will give you the information you desire. Very truiy yours,
CLIFFORD WALKER,
Attorney-General.
Where a deed is made to a county to a piece of property on which to build a court house and jail and the county decides to build elsewhere, the original site will not revert back to the grantor of such property, unless the deed contains, such provisions.
Atlanta, Ga., March 25, 1916. Hon. George R. Trapnell, Ordinary Candler County,
l'rletter, Ga. DEAR SIR: I have your letter of recent date enclosing copy of deed made and executed by Josiah Bird to the Commission-
331

ers of Roads and Revenues of Candler County to be used for the purpose of building thereon a court house and jail for said county. You wish to know whether or not in the event this location for the court house and jail is abandoned and the same buili elsewhere, the property conveyed in this deed would revert to the grantor. In reply I will say that in my opinion, under the authorities hereafter cited, I do not think the terms of the deed as they appear from the copy furnished me are sufficient to constitute a condition in the deed either precedent or subsequent. Therefore, I do not think that in case the location is abandoned the property would revert to the grantor. The grantor may have such an interest in the property that he would be entitled to have the county enjoined from using the, property for any .other purpose than that expressed in the deed, or he might have a right of action for damages. I cite the authorities upon which my opinion is based.
Code Sections 3716, 3717, 4568, 4224. Thompson et al. vs. Hart, 133 Ga. Rep., page 540. Thornton vs. Trammell, 39 Ga. Rep., page 202. City of Atlanta vs. Jones et al., 135 Ga. Rep., page 376. .Jones vs. Williams, 132 Ga. Rep., page 782.
I hope the above opinion and authorities will give you the information you desire.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
After August, 1913, a registration ls permanent provided the tax payer does not become disqualified.
March 25, 1916. Hon. J. A. Grant,
Alto, Ga. DEAR SIR: Replying to your favor of recent date, I beg to say that after August, 1913, a- registration is permanent provided the taxpayer does not become disqualified in some manner known to the law. If he removes his citizenship from the county he will of course become disqualified to vote in the
332

county from which he removes and on his subsequent return to that county would have to re-register.
I trust that this is the information you desire. Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
Section of the prohibition law passed by Extraordinary Session in 1915, cited.
March 29, 1916. Columbia Drug Co.,
Savannah, Ga. DEAR Sm : Press of official business has delayed my reply to your favor of recent date. The law permits me to render official opinions only on request of the Governor. However, I am pleased to give you my views on the. matter suggested. The prohibition law is contained in Section 1 of the new prohibition law and can be found in the Acts of the General Assembly of 1915, Extraordinary Sessio~. The book may be obtained from the State Librarian, Mrs. Maude B. Cobb, State Capitol, Atlanta, Ga. The law prohibits the sale of
"any drink, liquor or beverage containing one-half of one per cent. of alcohol or more by volume at 60 degrees Fahrenheit; any intoxicating bitters or beverages by whatever name called; all malted, fermented or brewed liquors of any name or description, manufactured from malt, wholly or in part, such as beer, lager-beer, near-beer, porter, ale, or any substitute for or imitation of said drinks."
Other definitions are made also, but the above is probably what you wish.
Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
&31

If a person in good faith simply leaves his county to see the country, with no thought of giving up his residence, he does not lose his citizenship in such county, though he may do some passing work of a temporary nature to pay his expenses on the trip and though his trip should be extended over a wide territory or a considerable period of time.
Eligibility of county officers as to residence.
March 29, 1916. Hon. George D. Rucker,
Alpharetta, Georgia. DEAR SIR: I have received your favor of the 27th instant, in which you inquire as to the legality of the citizenship of Mr. Claude V. Rainwater and of his el~gibility to hold the office of the Clerk of the Superior Court of your county. In reply thereto I beg to say that as a legal proposition it is not only difficult but practically impossible to define the limitations as to citizenship under circumstances similar to those outlined in your letter. The difficulty arises from the fact that in such cases the intention of the person in question largely determines his legal status. For instance, if Mr. Rainwater, in good faith, intended simply to make a visit to see the country with no thought of giving up his residence or citizenship he would remain a citizen of your county, even though he should do some passing work of a temporary nature to pay his expenses on the trip, and though his trip should be extended over a wide territory or a considerable period of time. On the other hand if he in good faith decided to move away from your county and take up an occupation in some other county or State he would on leaving your county lose his citizenship even though after a short time he should change his mind and decide to return to his former home and again take up his residence and citizenship. You will see that to determine the question at issue finally it will be necessary from facts and circumstances and statements of Mr. Rainwater to apply the facts in his case to the general rules necessarily imperfectly stated herein. Your second question is answered by a reference to .Article 11, Section 2, Paragraph one, of the Constitution of the State of Georgia, which provides, among other things, that
"no person shall be eligible to any of the offices referred to in
334

this paragraph (county officers) unless he shall have been a resident of the county, for two years and is a qualified voter."
Very truly yours,
CLIFFORD wALKER,
Att?rney-General.
Possession of liquors under prohibition law of 1915. (Laws Extraordinary Session, 1915, Section 16, page 99.)
March 30, 1916. C. J. Montgomery, M. D.,
918 John's Road, Augusta, Ga. DEAR Sm: I have been overwhelmed with official business and have been unable to take up your favor of recent date earlier. The law permits me to render official opinions only on the request of the Governor, but I will be pleased to give you personally any information in my possession. The law you inquire of is contained in Section 16 of the Prohibition Act (Acts of Extraordinary Session, 19'15, page 99) and is quoted below. The Act further provides that affidavits must be made before the Ordinary; that officers may inspect the same, the books of the express companies and otherwise ascertain if the law is being enforced. It will be impractical for me to quote the law in full but any Justice of the Peace or county officer will :furnish you with a copy of the book referred to. The Section referred to above reads as follows:
"Section 16. Be it further enacted by the authority aforesaid, That it shall be unlawful for any person to receive, accept delivery of, possess or have in possession at one time, or within any period of thirty consecutive days, whether in one or more places, (1) more than one gallon of vinous liquor, or (2) more than six gallons (48 pints) of malted liquors or fermented liquors such as beer, lager beer, ale, porter or other similar fermented or intoxicating or spirituous liquors, either in bottles or other receptacles, or (3) more than two quarts of spirituous liquors or other intoxicating liquors, or other prohibited liquors beyond those named in subdivisions one and two, above."
Trusting that the above will be what you wish and with best wishes, I am,
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
335

All county officers are required to file statements of campaign expenses within twenty days after the election.
March 30, 1916. Mr. J. H. Gross,
Alamo, Ga. . DEAR SIR: Replying to your favor of the 27th instant, in which you ask me to give you the law with reference to the filing of expense accounts by candidates, I beg to say that the law is contained in Section 92 of the Code and among other things provides as follows :
"All county officers, including county and city judges and solicitors elected by the people, shall, within twenty days from the date of holding said elections or primary elections, file with the clerk of the Superior Court of such county a statement itemized under oath, of all campaign expenses incurred by them, showing the amount of money expended in such campaign, the purpose for which it was used and the source of whence it was derived, but said county officers shall not be required to publish in any paper, said expenses. No person who shall violate any of the provisions of the preceding Section shall be declared the nomineeof his party." Section 671 of the Criminal Code reads as follows: "Whoever shall violate any of the provisions of Section 92 of the Civil Code, on the subject of publishing campaign expenses shall be guilty of a misdemeanor." -
The foregoing law was enacted in 1908. Upon examination I find that it has not been interpreted by the court. I am therefore unable to say just what the courts will hold in the event that a statement of expenses should be filed under the terms of the law after the expiration of the twenty days allowed by the law. However, I am of the opinion that if it should appear that the filing of the statement was unintentionally overlooked that the same was duly filed as soon as the matter was brought to the attention of the successful candidate, the extreme penalty would not be visited upon him.
I trust that the above gives you the information you desire. Very truly yours,
CLIFFORD WALKER,
Attorney-GeneraL
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A resident of a local school system, operated independent of the County Board of Education, cannot be a member of such Board.
April 1, 1916. L. D. McGregor, Attorney,
Warrenton, Ga. DEAR Sm: I have your letter of recent date asking my opinion on the following question, to wit: Can a citizen of a town working under a special legislative enactment with reference to its public schools or a resident of a local school district established by legislative enactment be eligible to membership on the County Board of Education 1 In reply, will say that your question is answered by Section 1479 of the Code, which provides, among other things, as follows:
"Provided further, that whenever there is in a portion of any comity a local school system having a board of educatiop of its own, and receiving its pro rata of the public funds directly from the State School Commissioner, and having no dealings whatever with the County Board of Education, then the members of the County Board of Education of such county shall be selected from that portion of the county not embraced within the territory covered by such local system."
See- also in this connection Section 16 of the Acts of the Legislature approved August 31, 1911 (Acts 1911, page 94). This Section, in part, reads as follows :
"Nor shall they (the Grand Jury) select any person who resides within the limits of a local school system operated independent of the County Board of Education for membership on the County Board of Education."
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
In a primary election for county officers electors are required to vote in the city ward or militia district in which they reside and are registered unless it should happen that a voting precinct Is not estab~ished and opened In such ward or district.
April 1, 1916. Mr. IIJ. A. McRainey,
Elmodel, Ga. DEAR Sm: I have your letter of recent date asking my opin-
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ion on the question as to whether or not in a primary election for the nomination of candidates for county offices, electors are permitted by law to vote at the court house at the county site instead of in the ward or militia district in which they reside and are registered. In reply will say that under Section 127 of the Code all primary elections are to be held in accordance with the laws of the State governing regular elections. Under Section 110 of the Code the elections for county officers are to be held in the same manner as elections f~r members of the General Assembly and State House officers.
Under the provisions of Sections 68 and 69 of the Code the electors are required to vote in the city ward or militia district . in which they are registered unless it should happen that a voting precinct is not established and opened in any city ward or militia district. In that event and in that event only can electors cast their ballots at the county site.
Section 130 of the Code provides as follows :
"No elector shall vote in any such primary election in a militia district other than the one in which he resides, or if he resides in a city, in a ward other than the one in which he resides, if an election precint be located in such ward."
I am of the opinion that the above quoted Section refers to an election either for State House officers, members of the General Assembly, or county officers. Under Section 668 of the Penal Code a violation of any of the above provisions of the law is declared to be a misdemeanor.
Hoping the above is the information that you desire. Very truly yours,
CLIFFORD WALKER,
Attorney-General.
Laws governing duplication of lost bonds.
April.4, 1916. H. B. Garrett, Esq.,
Augusta, Ga. DEAR" Sm: Your letter of March 31st, addressed to the Governor, has been referred to me for reply. I beg to advise that
338

the law governing duplication of lost bonds is contained in Sections 1270, 1272 of the Code. These Sections read as follows:'
"When any bond and coupon, or coupon, shall be lost, muti lated or destroyed, the Governor may issue to the holder a new bond, with proper coupons attached; or if coupon a_lone be lost, mutilated or destroyed, he may direct the Treasurer to issue new coupons in lieu of such coupons as may be lost, mutilated or destroyed."
"When mutilated, the mutilated bond, or coupon, must be surrendered; when lost or destroyed, the holder must make affi- . davit of such fact, that they. were his, in his own or some other right, at the time of the loss or destruction; if lost, that he has made diligent search without avail and despairs of ever finding them."
"Having made such affidavit, he shall then, before receiving the new bond, or coupon, give bond and surety to the Governor in a sum double the amount of the bond and coupon, or coupons alone so issued, as the case m~_ty be, conditioned to save the State harmless on account of issuing such new bond and coupon, or coupons only, as the case may be."
I am sure that this is clear and that you can easily comply with the terms of the law as stated.
Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
Unless garnishee earns money on Sunday, such day is not counted in exemption from garnishment.
.April 5, 1916. Hon. Tom Jones, City Clerk,
Austell, Georgia. DEAR SIR: I have your letter of April 1st in which you .ask my opinion on the following question: Under the present garnishment laws of this State all persons are exempt from the process and liabilities of garnishment on $1.25 per day of their wages. You wish to know whether or not in computing the amount exempt Sundays are to be included, or whether the amount exempt is to be computed on the working days in the month or week. In reply will say that Section 5298 of the Code exempts $1.25 per day of the daily, weekly or monthly
339

wages. (See Parks Code, Section 5298.) I construe the language used in the Act of 1914 as codified in the above stated Section to mean that the computation of $1.25 per day is to be made upon the working days in the week or month and that Sundays are to be excluded, unless garnishee earns money on Sunday.
Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
Solicitor of City Court is a State. officer and his term of office is therefore unchanged by the Act of 1914.
April 5, 1916. Hon. John E. Morris, Jr.,
Quitman, Ga. DEAR Sm: Replying to your favor of yesterday, the courts have held the Solicitor of the City Courts to be a State officer. I am therefore advising such officers that in view of the Act of 1914 their term of office remains unchanged.
Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
Section 128 of 'the Code pr-ovides for the closing of election, counting the ballots and announcing the results at each precinct.
April 5, 1916. Judge E. N. Smith,
Greensboro, Ga. DEAR SIR: Replying to your favor of yesterday I beg to say that the law on the subject of closing elections, counting the ballots and announcing the results at each precinct is contained in $ection 128 of the Code. Among other things it is provided:
"At the close of the election the managers shall proceed publicly to count the votes and declare the result. They shall certify
340

the result of the election and transmit the certificate with thli' tally sheet or poll list together with the ballots cast~ and all other papers relating to such primary election, within the time and in the manner prescribed in this Chapter."
.From a consideration of this Section it appears that the law contemplates that the ballots be counted and the result declared ''at the close of the election.'' Of course, the same rule applies to the town precincts, the managers of which must under the law follow the same regulations and exercise the same honesty and fairness in counting as is expected from the country precincts. If there be any fraud committed the proper course would be to give notice immediately of a contest and proceed according to the law of contests.
Very truly yours,
CLIFFORD wALKER,
Attorney-GeneraL
A county warrant, which appears on its face to be legally drawn and signed by the County Commissioners, payable out of a certain fund, and the Treasurer has a balance to the credit of that fund, when presented to the Treasurer must be paid by him.
April 5, 1916. Hon. T. R. Whitley,
Douglasville, Ga. DEAR Sm: I have received your favor of the 31st of March, in which you say :
"Will you be so kind as to give me a legal opinion as to the responsibility of a County Commissioner or Treasurer where a sinking fund has been levied and placed in the Treasury and diverted from its proper course and used, perhaps, for other county purposes, anyway, it is not in the Treasury. The specific case referred to there was levied in 1913 and 1914, a sinking fund to pay off the county bonds, due in 1918, January first. When the former Treasurer turned over the office to the present Treasurer, there should have been $1,600 in the sinking fund in the Treasury and there was only $500. The Treasurer claims that while this money was levied and collected and put in the Treasury it was not specially put apart by the County Commissioners and was drawn out on ~ccount of warrants on the General or Road fund for the county. I ask the opinion as to tbe
341

liability for this inoney and how it should be collected or whether the County Commissioners are liable entirely or whether the Treasurer. Thanking 'you in advance for this kindness, I am,
Yours very respectively, (Signed) T. R. WHITLEY.
In reply, I beg to say that the law on the subject is contained in Sections 514 and 516 of the Civil Code. These Sections read as follows:
"514. As soon as the county tax is assessed for the year, it shall be done by order of such ordinaries and entered on their minutes, which must specify the per cent. levied for each specific purpose. The assessment applies to every species of value or specfics which is taxed .by the State.'~
"516. Taxes raised foi: educational-purposes, or the support of the poor, or any other specific purpose, must be used for such purpose, respectively, and none other."
These Sections are, of course, based upon Section 513 which sets out in detail the purposes for which county taxes may be assessed. In construing these Sections the Supreme Court in. the case of Mitchell vs. Speer, 39 Ga. 59, decided as follows:
"It is clearly the intent of the Code, Sections 548, 549 and 550, that the county taxes shall be assessed specifically for the several purposes authorized by law. Section 550 says that the order of the court assessing the tax:, shall specify the per cent. levied for each specific purpose, and this just after Section 548 has specified, in detail, the several purposes for which county taxes may be laid.
"We think this is a wise provision. Every order assessing a tax should specify the per cent. laid for each of the nine specific purposes mentioned in Section 548. And if there be a tax laid for any purpose not there included by virtue of some other law, the per cent. laid for that purpose should be stated in the order. The funds, when collected, should be dealt with in the same manner. The Treasurer should keep a separate account of each fund, and eaah county-order should specify the fund on which it is drawn and no order ought to be drawn on any fund not properly raised for the payment of the claim.
"It is intended that the order of the Court, assessing the tax, shall be a sort of appropriation bill, and that the Ordinary shall draw it intelligently, in view of the peculiar state of the pecuniary condition of the county.
"Such a cause will conduce to economy, to a full understanding of county matters, and each person dealing with the county can
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then know the s~curity he has for the payment of the promise made him.
"We deem this provision of the _Code of great importance an<l Ordinaries and Treasurers who neglect to conform to this salutary law are greatly to blame. By the division of the funds into as many as nine or ten smaller funds, the public is' made aware of the uses to which the taxes are to be applied, and a far better control over the public money is secured, and this is of great im portance. The looseness heretofore existing has been a great evil, and the waste and the misuse of the county funds is a serious matter of complaint."
However, in the case of Shannon vs. Reynolds, 78 Ga. 761, the Supreme Court says :
"Unless this Treasurer, who is the executive officer of the Ordinary, could show that the order on him was fraudulent, or that a mistake existed as to the amount found to be due, he could not go behind the judgment of the Ordinary, acting as County Commissioners, directing the payment of this sum."
"This same principle is announced in the case of Neal Loan & Banking Co. vs. Chastain, 121 Ga. 500. The General rule seems to be that Ordinary or Commissioners in auditing the claims against the county and drawing orders on the Treasurer for their payment act as a sort of court and their judgments in these matters have the same effect as ordinary judgments of other courts. The Treasurer can not go _behind them except in the cases men tioned in the cases above cited and in the event there is a total lack of authority in the Commissioners to make the payments. In just what cases the Treasurer would be held personally liable for the payment of orders drawn by the proper officers has not been decided by our courts. In any event it is pretty hard to tell just what the courts are going to decide on the peculiar facts of any case where you have no previous decision to guide you."
In conclusion, I would say that the facts stated by you in your letter are hardly sufficient to form the basis of a definite opinion. If I had all the facts I might give you a more specific opm10n. However, it can be said by way of recapitulation that if there is presented to the Treasurer, a county warrant which appears on its face to be legally drawn and signed by the County Commissioners, payable out of a certain fund, and the Treasurer has on hand a balance to the credit of that fund, the Treasurer must pay the same, and there can be no liability on his part for so doing. On the contrary, if such warrant appears to be
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illegal on its face for any reason, or if it appears otherwise illegally drawn, but does not direct on its face that it be paid from a certain fund, or if it be legally drawn in every sense and properly directs its payment from a certain fund and the Treasurer has not sufficient funds to the credit of that certain fund to pay the warrant, the Treasurer may refuse the same and probably should do so, as he will be personally liable in the event it should appear the funds were illegally paid out.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Where a fi. fa. has issued on forfeiture of a criminal bond garnishment proceedings can be issued on such ti. fa. and the Solicitor General is authorized to make the affidavit and execute the necessary bond.
April 8, 1916. Franklin & Langdale, Attorneys,
Valdosta, Georgia. GENTLEMEN: Your letter of April 5th, addressed to Ron. N. E. Harris, Governor, has been turned over to me for reply. From your letter it appears that one Will Lumpkin was arrested and gave the usual bond for the appearance in the Superior Court of Clinch County. L. M:. Williams signed this bond as surety. Lumpkin failed to appear for trial and his bond was forfeited and subsequently judgment was rendered on this bond against Lumpkin as principal and Williams as surety. A fi. fa. has been issued upon this judgment. The Sheriff finds no property belonging to either of these parties upon which to levy the execution, but it appears that Williams has an interest in a partnership which, in an ordinary suit pending or judgment obtained, could be reached by garnishment. Question is whether or not process of garnishment can be issued upon the judgment based upon the foreclosure of such bail bo:rid and the same served upon the partnership. If so, who is authorized to make the affidavit for garnishment and execute the garnishment bond? According to the decisions of the Court the case of Davis vs. Millen, 111 Ga. 451, the garnishment law as embraced in Sect!on~
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5265 and 5266 and 1154 of the Code is to be strictly construed. However, in the case of State vs. Lockhart, 24 Ga. 420, a proceeding to forfeit a recognizance is not a criminal, but civil proceeding, or at least a quasi criminal proceeding. In such a case it appears that the State is a party plaintiff and the principal and surety on the bond are parties defendant.
Section 5266 of the Code provides that the affidavit to obtain garnishment can be made by the agent or attorney of the plaintiff, ''and shall have power to sign the name of the plaintiff to the bond, who shall be bound thereby in the same manner as though he had signed it himself.''
I hardly think the Sheriff or the attorneys representing the Sheriff in such a case could be regarded as either the agent or the attorney for the plaintiff, which is the State. Under Section 4926, Paragraphs 5, 7, and 11 of the Code the SolicitorGeneral is the Attorney for the State in such cases, and if any one is authorized to make the affidavit and execute the bond, necessary to obtain garnishment, in such cases, he is the proper person to do so, in my opinion.
In all cases .it is necessary that a valid bond be given before the process of garnishment can be issued. Unless, therefore, the Solicitor-General has the authority to bind the State by the execution of such a bond it seems that no valid process of garnishment could be issued.
I regard it as a very doubtful question whether the SolicitorGeneral can execute such a bond and bind the State thereby. I know of no law which would authorize him to so bind the State by the execution of such a bond unless it is Section 5266 of the Code. This depends upon whether or not in such a case the State may be regarded as a party plaintiff within the purview of this Section. The general rule is that the State is not bound by the provisions of an Act of the Legislature unless it is specifically named therein, or it clearly appears from the statute itself that such was the intention of the Legislature. Of course, no officer of the State, not even the Governor himself, has the authority to bind the State by a contract or writing, except in cases where the officer may be expressly authorized by law to do so. On the other hand it hardly seems reasonable to say that the State is left without adequate means of protecting its own interests and of collecting its debts. In this case the amount of
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the judgment is a debt due to the State, although the money whe11 actually received by the State is appropriated to the use of the officers of the court. It seems that no express provision of law has been made for the case you have in hand. I will advise that you have garnishment issued and that the SolicitorGeneral make the affidavit and execute the bond.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.

A Special election for member of the Legislature can be held at the same time the primary election is held.

April 8, 1916. Hon. Sam F. Garlington,
Augusta, Ga. DEAR Sm: I have your letter of April 7th in which you say that you desire to tender your resignation as a l\lember of the House of Representatives from Richmond County. You say further that the Executive Committee has fixed the Primary Election for June 7th. You wish to know whether or not at this Primary in June your successor could be elected, or whether or not a primary for one purpose and the general election for another could be held at the same time. In reply I will say that Section 90 of the Code of this State provides as follows :

"Elections to fill vacancies for members of the General Assem

bly take place under the authority of a writ of election, issued

by the Governor to the Ordinary of the county where the vacancy

occurs, who must order and publish a day for holding the same,

by giving at least twenty days' notice."

~

Section 91 of the Code provides as. follows :

"All the provisions of this chapter apply equally to elections to fill such vacancies and any other special election." ~

The "chapter" of the Code referred to in Section 91 as quoted above is chapter 3 of the Code, which sets forth all the provisi0ns of the law relating to ''elections for Members of the General Assembly."
It thus appears that an election to fill a vacancy caused by

346

your resignation would have to be called by the Ordinary of your county under the authority of a ''writ of election'' issued by the Governor, and will have to be held under the same rules and regulations as general elections for Members of the General Assembly. I see no reason why this special electio'n might not be held at the same time as the primary you refered to. Still the primary which is a party affair and the special election which is a State election would necessarily be separate and distinct elections and the special election would in all respects necessarily be held under the same rules and regulations as a general election for l\1embers of the General Assembly.
Very truly yours,
CLIFFORD WALKER, Attorn~y-GeneraL
A peddler of harness oil and soap is subject to the license tax.
Atlanta, Ga., April 10, 1916. Mr. W. L. Kirk,
Thomasville, Ga. DEAR SIR: I have your letter of the 4th inst., saying that you are engaged in the manufacture of certain oils to be used for healing purposes and also a harness oil and also a fine soap. These articles are manufactured by you for the purposes of sale. You wish to know whether or not you are liable to a tax for the manufacture and sale of these articles. In reply, I will say that if you are peddling these articles you would be subject to a tax. See Section 946 of the Code. If you suggest, recommend, prescribe or direct for the use of any person, the oil mentioned, for the cure, relief, paliation of any ailment or disease of the mind or body, or for the cure, or relief of any wound, fracture or other bodily injury, or any deformity, with the intent of receiving, either directly or- indirectly, any bonus, gift or com.pensation therefor, you would be practicing medicine under Section 1683 of the Code of 1910, and would be subject to the provisions of the law on that subject. It would be well for you to examine Section 1683 of the Code on this subject.
Very truly yours, -
CLIFFORD wALKER,
Attorney-General.
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Clerk of the Superior Court has a right to refuse to record a deed or mortgage improperly witnessed.
April 13, 1916. Mr. J .. A. Morgan,
Box 376, Valdosta, Ga. DEAR Sm: Replying to your favor of recent date, I beg to say that the Clerk of the Superior Court has a right to pass on the legality and proper witnesses of signatures to written instruments left with him for recording. For instance, a deed or mortgage should not be recorded where it. is improperly witnessed.
Very truly yours,
w CLIFFORD A.LKER,
Attorney-General.
The voting of a "single shot" ticket will not cause the entire vote of the precinct to be thrown out. The fact that a kinsman of one of the candidates assisted in holding the election will not cause the vote of the whole precinct to be thrown out.
April 13, 1916. Judge Hope H. Davis,
Franklin, Ga. DEAR Sm : Replying to your favor of recent date it is my opinion that the voting of a "single shot" ticket for one office at a voting precinct will not throw out the vote of the entire precinct for candidates for offices other than the one referred to. I am further of the opinion that the fact that a kinsman of one of the candidates assisted in holding an election would not throw out the vote of the whole precinct for other candidates if it so affected the candidate who was related. The buying of votes with money or whiskey is usually passed upon by the executive committee. I know of no other way to handle the matter except by prosecution under the criminal laws.
Very truly yours,
w CLIFFORD A.LKER,
Attorney-General.
348

Law governing manufacture and sale of "Hop Ale," a beverage con. taining only one-third of one per cent. alcohol, but made from hops.

.April 13, 1916. Bludwine Bottling Company,
Augusta, Ga. GENTLEMEN: Replying to your favor of recent date, in which you ask if it will be legal to bottle and sell Hop .Ale-which contains one-third of one per cent. alcohol, but is made from Hops, the syrup being manufactured by the .American Beverage Co., St. Louis, Mo. In reply, will say that the law does not permit me to give opinions except upon the request of the Governor, but I will be pleased to give you what information I have. The prohibition law is contained in the .Acts of the Extraordinary Session, 1915, and the first Section, Part 1, .Aritcle 2, says:

"-That the term prohibited liquors and beverages, when used in this Act-shall mean and include: (1) Alcohol, alcoholic liquors, spirituous liquors and all mixed liquors, any part of which is spirituous, foreign or domestic spirits, or rectified or distilled spirits; absinthe, whiskey, brandy, rum and gin; (2) vinous liquors and beverages; (3) all malted, ferinented or brewed liquors of any name or description, manufactured from malt, wholly or in part, such as beer, lager beer, near-beer, porter and ale and all brewed or fermented liquors and beverages in which maltose is a substantial ingredient, whether alcoholic or not, or whether intoxicating or not; (4) and all drinks, liquors or beverages containing one-half of one per cent. of alcohol or more by volume at 60 Fahrenheit; or any other liquids or liquors manufactured or sold or otherwise disposed of, for beverage purposes, containing said amount of one-half of one per cent. of alcohol or more: (5) any intoxicating bitters or beverages by whatever name called; (6) all liquors and beverages or drinks made in imitation of or intended as a substitute for beer, ale, wine or whiskey or other alcoholic or spirituous, vinous, or malt liquors including those liquors and beverages commonly known and called near-beer.
Trusting that the above will give you the information desired,

I am,

Very truly yours,

CLIFFORD wALKER,
.Attorney-General.

349

License fee required of itinerant doctors, dentists, opticians, etc. Section 960.
April 17, 1916. Dorsey, Shelton & Dorsey, Attorneys,
Empire Building, Atlanta, Ga. GENTLEMEN: With reference to your inquiry of the 15th instant, as to taxes and license fees required of the True-Sight Optical Company to do business in this State, I beg to refer you to Section 960 of the Code of the State of Georgia, 1910, as follows:
"Upon every itinerant doctor, dentist, optician, veterinary surgeon, osteopathist, or specialist of any kind traveling and doing business in this State, the- sum of ten dollars for each county in which they may practice or do business; provided, that the provisions of this paragraph shall not apply to persons whose fixed place of business is in any county of this State, and who have paid the professional tax required by Paragraph two of Section two of this Act."
Paragraph two of Section two of this Act provides for the payment of ten dollars to the State as professional tax.
When the Optical Company shall have paid its city privileges license in Atlanta and estabiished its place of business there and when it shall have procured a license for each Optician in its service doing business in the State of Georgia it then will have paid all taxes required of it in order to do business anywhere in the State of Georgia, and will not be required to pay any further county or municipal taxes.
Very truly yours, CLIFFORD WALKER, Attorney-General.
The Board of Commissioners of Emanuel County Is the proper au- . thority to lay out and establish militia districts.
Atlanta, Ga., April 18, 1916. Hon. John J. Moore, Ordinary Emanuel County,
Swainsboro, Ga. DEAR Sm: I have your letter of recent date in which you ask whether the Ordinary of Emanuel County or the Commis-
350

sioners of Roads and Revenues of that county have the power and authority to lay out and establish militia districts in the said county. In reply I will say that by the Act of the General Assembly, approved August 16, 1912, it is provided that a Board of Commissioners be created for this county, and in Section Nine of tb.is Act it is provided as follows:
.Said Board of Commissioners shall have exclusive jurisdiction when sitting for county purposes over the following subjectmatte'rs, to wit: (among others)
Fourth, in establishing and changing election precints and lines and militia districts.
Under the rulings of the Supreme Court in the following cases, such power is exclusively in the Board of Commissioners and the Ordinary has no jurisdiction in the matter.
Hackney vs. Leake, 91 Ga. Rep., page 141. Dew. vs. Smith, 130 Ga. Rep. 564. Conley vs. Poole, 67 Ga. Rep. 254.
I hope the above will give you the information you desire. Very truly yours,
CLIFFORD WALKER,
Attorney-General.
It is within the. discretion of the County Board of Education as to whether they pay the premium on the bond of the County School Superintendent.
April 19, 1916. Mr. N. H. Bullard, Supt. of Schools,
Milledgeville, Ga. DEAR SIR: In reply to your letter of recent date asking my opinion as to whether or not the County Board of Education has the authority to pay the premiums on the bond of the County Superintendent of Schools I will say that there is no express authority in the law either authorizing or requiring the County Board of Education to pay such premium. As stated in my previous letter, I understand that it is the custom for the Boards of Education to pay these premiums. In my opinion the Boards are not required to pay them, but may
351

do so if they see proper. It is a matter entirely within the discretion of the Board of Education of the county.
I hope the above will give you the information you desire. Very truly yours, CLIFFORD WALKER, Attorney-General.
In exerc1s1ng the power of sale contained in a deed to secure debt, the holder can select any newspaper of general ciroulation in the county for the purpose of advertising the sale, unless some specifi~ newspaper is named in the deed.
April 19, 1916. non. C. E. Leavy, Brunswick, Georgia.
DEAR SIR: I have your letter of recent date enclosing a copy of an advertisement of notice of sale. You request-my opinion as to whether or not this notice under the law is required to be published in the newspaper which carries the Sheriff's advertisements.
I will say that your letter would have been answered soonP.r but for the fact that for more than two weeks I havP. lJeeu engaged in important litigation _for the State which required all my time and attention. In reply to your request for opinion I will say that the notice inclosed is given for the purpose of exercising the power of sale contained in a deed to secure a debt. The deed requires that the sale shall be made upon the following advertisement, "After giving four weeks' notice of time and place of sale by advertisement once a week for four weeks on the first Tuesday,'' etc.
The law applicable to this case is contained in Section 4620, which reads as follows:
"The power of sale in deeds of trust, mortgages, an-d other instruments is to be strictly construed and must be fairly exercised. In the absence of stipulation to the contrary in the instrument, the time, place, and manner of the sale should be that pointed out for public sale."
The Supreme Court of this State has never passed upon the question you ask, and the question is not one free from
352

doubt. It will be noted that the deed does not S!lY in what newspaper the advertisement is to be published. If it had indicated what newspaper was to carry the advertisement, then it would have been necessary that the advertisement be published in that newspaper. It may be fairly assumed; however, that the maker of the deed intended that the advertisement was to be published in some newspaper of general circulation in Glynn County, Georgia. In the case of Vizard vs. 1\Ioody, 119 Ga. 918 (7), the Court had under consideration the validity of a sale under a deed which provided that the Trustee should sell the property ''after advertising said sale for ten days by publication in some newspaper published in said Jackson County." The court held in this case that the Trustee was not limited to any particular newspaper in the publication of the notice of the sale, and that the sale was valid. In this connection see the case of Crawford vs. Garrett, 121 Ga. 706. See also the case of Callaway vs. Bank, 54 Ga. 441 (2) .
.As stated above, there is some doubt about this question but under the authorities cited I am inclined to think that the holder of the deed could select any newspaper of general circulation in Glynn County and that the advertisement therein would be legally valid.
Very truly yours, CLIFFORD WALKER, .Attorney-General.
An office does not become vacant by reason of the removal of the in cum bent beyond the territorial Iimits of the jurisdiction until this fact has been determined by a court of competent jurisdic. tion upon proper proceeding.
.April 19, 1916. Mr. W. F. Adams,
Scotland, Ga. DEAR SIR: I have your letter of recent date in which you say that the person elected as Mayor of your city during the term of his office has moved out of the incorporate limits of the city. You wish to know whether or not the office of Mayor has become . vacated by such removal of the Mayor from the limits of the city, and whether his acts as Mayor are valid.
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In reply, I will say that if this removal of the Mayor is only temporary, and he removes from the city with the intention of returning, there would be no change of residence on his part. A change of residence does not result from a removal not intended to be permanent. However, the change of residence of. the 1\Iayor, if intended by him to be permanent, would vacate the office, but not until that fact has been judicially ascertained. See Section 264 (5) of the Code. Also see the case of Chanell vs. the State, 109 Ga. 150 (1). Also see the case of Bush vs. the State, 10 Ga. App. 544 (2).
In such cases as that mentioned by you, under the above quoted authorities, tke office would not become vacant until a proper proceeding has been instituted in the prop~r court to . test the validity of the Mayor's title to the office, and to declare the office vacant.
The proper proceeding in such cases would be by quo warranto, brought by any one interested in the office, and any citizen may file the writ, because all are interested in the proper disch~rge of the duties of the office, and the proper qualifications of the in. cumbent. See \Vhitehearst vs. Jones, 117 Ga. 803.
Hope the above will give you the information you desir.~. Yours very truly, CLIFFORD \VALKER, Attorney-General.
Act of 1913 requires the Tax.Collector to make up a new registration list every two years to be submitted to the Registrars." Registration book should be closed six months before t.he Tuesday after the first Monday in November which is now the legal date for holding State elections.
April 20, 1916. H on. Fred A. Cler,
Savannah, Georgia. DEAR SIR: Replying to your favor of the 17th instant it is roy opinion that the Act of 1913 requires the Tax-Collector ~o make up a new registration list every two years to be submitted to the Registrars. He will proceed by taking the list used in the former election and add thereto the names of all persons
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who have registered subsequently. He will furnish to the Registrars a separate list of those who have failed to pay their taxes or in his judgment have become otherwise disqualified. The Registrars then will consider the qualification of such persons and purge the list of all who are disqualified.
In answer to your second question I beg to advise that the registration books should be closed six months before the Tuesday after the first JHonday in November, which is now the legal date for holding the State elections.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
A person holding the office of Notary Public and ex-officio Justice of the Peace is ineligible to hold the office of Presidential Elector.
April 20, 1916. Hon. Clark Howell, National Committeeman,
Atlanta, Ga. DEAR SIR: I am in receipt of your letters of recent date, in which you ask my opinion as -to whether or not a person who is a Notary Public and ex-officio Justice of the Peace in this State and a member of this City Council and Mayor pro tern. of this city is eligible for the office of Presidential Elector. In reply, I will say that Article two, Section one, Paragraph two of the Constitution of the United States reads as follows:
"Each State shall appoint, in such manner as the Legislature thereof may direct, a number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in Congress; but no Senator or Representative, or per son holding an office of trust or profit under the United States shall be appointed an Elector."
Paragraph three of the same Section provides that Congress may determine the time of choosing the Electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.
The above provisions of the Constitution constitute all the provisions of law of the Federal Government on the subject of choosing the Electors and their qualification for the office.
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In re Green, 134 U. S. 377, the Supreme Court of the United States said:
"Although the Electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of State Legislatures when acting as Electors of_ Federal Senators, or the people of the States when acting as Electors of Repres~ntatives in Congress."
The same doctrine was announced by the Supreme Court of the United States in the case of McPherson vs. Blacker, 146 U.
s. 1.
From the above authorities it appears that a Presidential Elector is not a Federal Officer, but is a State Officer. From the same authorities it appears that the manner of electing these Presidential Electors is left to the States with the exception that the time of choosing them, and the day on which they give their votes is regulated by Congress. The Federal Government imposes no restrictions as to their qualifications except that mentioned above.
The question then arises, since these Electors are State Officers, whether or not the States may impose other conditions than those mentioned above for qualifications of Presidential Electors. I have been unable, after diligent search, to find any authority on this subject. However, I see no reason why the States may not impose other restrictions than those mentioned in the Federal Constitution for the qualifications of Electors under State laws. Of course such restriction must be consistent with the provisions of the Constitution quoted above. If the State may prescribe additional qualifications for these Electors, then Section 258 (4) of the Code of this State may be involved. This Section provides, among other things, the following:
"The following persons are held and deemed ineligible to hold any civil office in this State, and. the existence of either of the following states of facts is a sufficient reason for vacating any office held by such person."
Paragraph four of the same Section is as follows:
"Persons holding any office of profit or trust under the Government of the United States (other than that of Postmaster), or of either of the several States, or of any foreign nation."
Under the ruling of the Supreme Court of Georgia in the
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case of Long vs. Rose, 132 Ga. 288, I do not think that the fact that a person holds an office under a l\Iunicipal Government of this State would render him ineligible to serve as a Presidential Elector. However, I am inclined to think that a person holdiu~ the office of Notary Public and ex-officio Justice o: the Peace may be considered a person holding an office of profit or trust under the government of this State. If such person may be considered as holding such office he would be ineligible to hold the office of Presidential Elector provided the office of Presidential Elector may be considered ''any civil office in this State." I have been unable to find any authorities on this point. I am inclined to think that under the authorities I have cited, aperson holding.the office of Notary Public and ex-officio Justice of the Peace is ineligible to hold the office of Presidential Elector. To say the least there is a great deal of doubt about the matter, and I think the safe rule would be to hold such a person ineligible. As stated above I am unable to find any case where the question had been passed upon.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
1. The only standard of time in Georgia is what is known as meridian time, or, as it is popularly called, "sun-time."
2. Where a protest to an election must be filed before twelve o'clock, a protest filed after twelve o'clock meridian on the day speci fled, strictly speaking, it would be too late from a legal stand point.
3. Irregularities in opening or closing the polls would not render the election void unless it could be shown that the result of the election is different from what it would have been had the polls been opened or closed strictly according to law.
April 21, 1916.
Mr. H. G. Hester, Valdosta, Ga.
DEAR SIR: I have your letter of recent date in which you ask what is the legal standard of time in Georgia. In reply, I will say that in the case of Henderson .vs. Reynolds, 84 Ga. 160, the Supreme Court of this State said:
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"The only standard of time in computation of a day, or hours of a day, recognized by the laws of Georgia, is the meridian of the sun; and a legal day begins and ends at midnight, the meantime between meridian and meridian, or 12 o'clock post meridian. An arbitrary and artificial standard of time, fixed by persons in a certain line of business can not be substituted at will in a certain locality for the standard recognized by the law."
From the above it will be seen that the only standard for the computation of time in Georgia is what is known as meridian time, or, as it is popularly called, "sun-time."
The next question you ask is whether or not in a case in which the rules of the primary require that a protest shall be filed before twelve o'clock on a certain day, and the protest is filed thirteen minutes after that time, according to "sun-time" the protest is filed too late. In answer to this question, I will say that if the protest was filed after twelve o'clock meridian on the day specified, strictly speaking, it would be too late from a legal standpoint.
The next question you ask is whether or not in a case where .at an election the polls were closed or opened according to central time which is different from meridian or sun-time in that locality, the election would be irregular or void. In reply, I will say that this question is answered by Section 126 of the Code of this State of 1910: Said Section reads as follows:
"No election shall be defeated for non-compliance with the requirements of the law, if held at the proper time and place by persons qualified to hold them, if it is not shown that, by that non-compliance, the result is different from what it would have been had there been proper compliance."
In this connection see the following cases :
Irvin vs. Gregory, s6 Ga. 605.
Chamlee vs. Daly, 115 Ga. 266. Brumby vs. City of Marietta, 132 Ga. 408. Coleman vs. Emanuel County, 131 Ga. 643.
In volume 15th Cyclopedia of Law, page 364 (e), it is said:
"The provision of a statute as to the time of opening and closing the poll is so far directory that an irregularity in this respect which does not deprive a legal voter of his vote or admit a disqualified person to vote will not vitiate the election. But if the departure from the provisions of the statute in regard to the time for opening or closing the poll was so great that it must be deemed to have affected the result, the election must be held invalid."
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Specifically answering your last question, I will say that the irregularities in opening or closing the polls would not render the election void unless it could be shown that the result of the election is different from what it would have been had the polls been opened or closed strictly according to law.
Very truly yours,-
CLIFFORD wALKER,
Attorney-General.
Solicitor of City Court ineligible to seat in Legislature.
April 25, 1916. Hon. Paul Jli. Atkinson,
M.adison, Ga. DEAR Sm: I have received your favor of yesterday in which you advise that there is an overwhelming sentiment in your county that Hon. Albert G. Foster should be elected to serve out the unexpired term of his distinguished and lamented father in the Legislature, but raising the question of his eligibility, Mr. Foster being the Solicitor of the City Court of Madison. Replying thereto, I beg to say that nothing could give me keener pleasure than to be associated with Mr. Foster during the Summer term. However, an investigation of the law convinces me that he will be ineligible to serve in the Legislature while he retains his commission as Solicitor. Article 3, Section 4, Paragraph 7 of the Constitution of the State of Georgia (Code Section 6420) provides that:
"No person hol,ding-an office having any emoluments or compensation annexed thereto under this state--except Justices of the Peace and officers of the militia-shall have a seat in the House, etc." .
Trusting that this will give you the information you desire, and regretting that I could not find the law otherwise.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
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Law providing punishment of persons who deface or injure the Capitol Building, furniture therein or grounds and approaches thereto, etc., and 'giving jurisdiction of such crimes to the Recorder of the City of Atlanta, as well as the Judge of the Superior Court. Constitutionality of the jurisdiction of the Recorder discussed.
April 25, 1916. Hon. E. L. Jett, Assistant Chief of PoUce,
City, DEAR Sm: Replying to your favor of yesterday, I beg to say that the law referred to reads as follows:
"219. If any person shall mar, deface or in any way InJUre the Capitol Building, the approaches thereto, the trees, shrubbery, or grounds belonging to same, or any of the furniture, fixtures or property therein, he shall be punished as for a misdemeanor."
"220. Either the Recorder of the City of Atlanta or the Judge of the Criminal Court of Atlanta for Fulton County is em powered and duly authorized to hear and determine any case
arising under the provisions of the preceding Section, and to in
fiict the punishment prescribed therein."
You will note that the latter Section confers upon the Recorder the right to hear and determine such a case. -However, I am inclined to believe that this provision is unconstitutional and therefore void. The Constitution gives to every man charged with crime under the laws of the State the right of trial by jury. Moreover the Supreme Court in the case of Grant vs. Camp, 105 Ga. 428, held that:
"Since the adoption of the present Constitution of this State the Legislature can not confer jurisdiction over crimes against the State upon a court created for the trial of municipal offenses."
See also Aycock vs. Rutledge, 104 Ga. 533, and the authorities cited.
Trusting that this will give you the information desired. Very truly yours,
CLIFFORD WALKER,
Attorney-General.
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A tax defaulter is a person who fails to make a proper return of his property to the tax-receiver for the purpose of taxation before the tax-receiver closes his books.
April 25, 1916. Hon. J. H. Hollingsworth, Tax-Collector,
Georgetown, Ga. DEAR SIR: I have your letter of April 20th in which you ask for an opinion on the question as to when a person under the law becomes a tax defaulter, whether it is on the 20th day of December of each year or at the' time the Tax-Collector makes his settlement with the Comptroller-General. In reply, I will say that technically a tax defaulter is a person who fails to make a proper return of his property to the Tax-Receiver for the purpose of taxation before the Tax-Receiver closes his books. On this subject see Sections 1105, 1127, 1109, 1110, and 1111, of the Code of 19'10. A person who fails to make such return within the time required by law is a defaulter. However, persons who fail to pay their taxes within the time required by law are sometimes spoken of as defaulters, and sometimes as delinquent taxpayers. See on this subject Sections 1118, 1128, 1151, and 1229, of the Code of 1910. A person is a delinquent taxpayer or a defaulter when he fails to pay his taxes on or before the 20th day of December of each year. His default begins at the time when, under the law, the Tax-Collector is authorized to issue a tax execution against him. This date is the 20th day of December of each year, and he is a defaulter on and after that date. See Section 1229 of the code.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
The Prohibition Law of 1915 prohibits the sale of any drink or beverage containing more than one-half of one per cent; of alcohol at 60 degrees Fahrenheit.
April 27, 1916. Hobby-Threlkel Company.
Hobby, Turner County, Georgia. GENTLEMEN: Your letter of the 25th instant, addressed to the Governor, has been turned over to me for answer. You-
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wish to know if a merchant can sell apple cider with or without a license, and if the wholesale dealer or the retail men pay the license.
In reply, will say that the Prohibition Law passed in 1915 prohibits any drink or beverage, whether intoxicating or not, that contains more than one-half of one per cent. of alcohol at 60 degrees Fahrenheit, from being sold in the State of Georgia. (See Georgia Laws, 1915, Extraordinary Session, pages 79 and 80.)
.As to the license for dealing in non-intoxicating, non-alcoholic ciders, I will say that the State does not require any tax on dealers in such ciders and dealers are not required to obtain any license from the State. It may be that the town or city in which this business is carried on requires a license. It will be necessary for you to examine the city ordinances to ascertain whether the wholesaler or the retailer is required to pay the license tax.
Very truly yours,
w CLIFFORD .ALKER,
.Attorney-General.
The term of office of County Commissioners is not regulated by the ConstituUon of this State, but by the Acts creating the Board of Roads and Revenues.
.April 28, 1916. Hon. R. D. Meader, Atty.,
Brunswick, Grt. DEAR Sm: I have your letter of .April 25th in which you ask me for an opinion on the question ''.As to whether or not the statute which extends the terms of county officers to four years applies to the County Commissioners. By the use of the word "statute," I suppose you have reference to the amendment of the Constitution of this State proposed by the Legislature at its session in 1914 and ratified by the people on November 3rd, 1914. The Section as amended is now .Article 2 and Section 2, Paragraph 1 of the Constitution of this State. This Section so far as it relates to the terms of office of the county officers is as follows :
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"The county officers shall be elected by the qualified voters of their respective counties, or districts, and shall hold their offices for four years. (Provided that the provisions of the proposed amendment shall.not become effective until January l, 1917.)"
Article 2, Section 3, Paragraph 1 of the Constitution of this State provides as follows:

"\Vhatever tribunal, or officers, may hereafter be created by the General Assembly, for the transaction of county matters, shall be uniform throughout the State, and of the same name, jurisdiction, and remedies, except that the General Assembly may provide for the appointment of Commissioners of Roads and Revenues in any county."

Article 6, Section 19, Paragraph 1 of the Constitution of this State provides as follows:
"The General Assembly shall have power to provide for the creation of County Commissioners in such counties as may require them, and to define their duties."

It will be noted that the only change made in the Section

of the Constitution above quoted by the amendment ratified

November 3, 1914, was to substitute the word "four" in the

third line of the said Section for the word "two," thus leaving

the said Section just as it was before the amendment, except

that the third line as amended reads ''and shall hold their offices

for four years,'' whereas before it read ''and shall hold their-

offices for two years.''

It will be noted further that the second of the Sections

above quoted provides ''that the General Assembly may pro-

vide for the appointment of Commissioners of Roads and Rev-

enues in any county."



The third qf the Sections above quoted provides that the

"General Assembly shall have power to provide for the creation

of County Commissioners,. etc.''

In the case of County of Pulaski vs. Thompson, 83 Ga.

270 (4), the Supreme Court of this State holds that under the

Sections of the Constitution above quoted it is not necessary that

the Acts of the Legislature creating these boards of county

commissioners be alike or uniform in their operation, but that

there may be a difference in the powers given to the commis-

sioners, in the manner of their election, in their number and

their compensation and in other matters.

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The same doctrine is announced by the Supreme Court of Georgia in the case of Commissioners vs. Americus, 141 Ga. 544.
Now, it clearly appears that if under the Constitution as amended the County Commissioners hold their offices for four years, under the Constitution as it stood before the amendment the County Commissioners would hold their offices for only two years, although the Act creating their offices might provide that their terms of office were to be for four or six years or even for a longer period. If, therefore, the constitutional provision under consideration before the amendment did not regulate the terms of office of the Commissioners, the same provision as amended could not regulate the terms of office of these officers.
So far as I can find the Supreme Court has never ruled on the question as to whether or not this Section of the Constitution before the amendment was applicable to. and regulated the terms of office of County Commissioners. However, an examination of the Acts of the Legislature enacted since the adoption of the present Constitution even down to the session of 1915 will disclose that at every session Acts were passed creating boards of roads and revenues, and that a great many of thse Acts provide that the terms o~ office of the Commissioners shall be for four years, some for six years, and some for two years. It will be found further that these Acts provide different methods for electing the Commissioners, some of them providing that they be elected by the Grand Jury. Thus it appears that the construction placed upon these Sections of the Constitution by the members of the Legislature from the adoption of the Constitution to the last session of that body is that the terms of office of County Commissioners are not governed by the provisions of the Section of the Constitution quoted, but that the same may be lawfully fixed by the Act creating the office.
In answer to your question, I will say that in view of the uniform construction placed by the General Assembly upon the Section of the Constitution above quoted and under consideration, and in 'view of the doctrine announced by the Supreme Court in the cases above cited, and in view of the other provisions of the Constitution, quoted above, to the effect that the ''General Assembly may provide for the appointment of
364

Commissioners of Roads and Revenues,'' and that ''the Genera] Assembly shall have power to provide for the creation of County Commissioners," I am inclined to the opinion that the terms of office of County Commissioners are not regulated by the Constitution of this State, but are regulated by the Acts creating the Board of Roads and Revenues.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
Intoxicants become the property of the State after legal seizure, and, when so ordered by the proper court, the Sheriff must destroy the same.
April 29, 1916. Hon. 111. L. Meldrim, Chief of Police,
Savannah, Ga. DEAR SIR: Replying to your message of even date I regret to say that the law permits the Attorney-General to render official opinions only on request of the Governor. However, I shall always be pleased to give you the benefit of my opinion as a lawyer whenever you desire it. In the matter now before us I think the law is clear that immediatel;1 upon seizure the intoxicants become absolutely contraband and the property of the State. However, I am sure the officers have no authority to destroy the same without an order of court. It should be held as evidence in the trial of the case and at its conclusion the Judge having jurisdiction should order the whiskey disposed of under the terms of the law. I am satisfied that he could have it destroyed if he saw fit.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
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A City can legally pass any reasonable rules and regulations as to the health and sanitation of the city. Recorder must bind over to the State Courts any violation of State laws, where such violations occur while enforcing the rules and regulations pertaining to the health and sanitation of the city.
April 29, 1916. Hon. T. F. Abercrombie,
Brunswick, Ga. DEAR Sm: Replying to your favor of yesterday I beg to advise that in my judgment the City can legally pass any reasonable rules and regulations as to the health and sanitation of the City. If, in administering these rules and regulations, a violation of any State law is discovered, the Recorder must bind the defendant over to the State Court, as the Supreme Court in the case of Grant vs. Camp, 115 Ga. 428, held that the _Legislature has no authority to confer jurisdiction over crimes punishable under State laws upon Municipal Courts. He has authority, however, to bind over to the State Court. Trusting this gives you the information you desire, I am,
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
1. Ordinaries should file statements of the delivery, reception, keeping, etc., of intoxicating liquors in an orderly manner but are not required to keep an index thereof.
2. No specific form for the demand required to be made by Ordinaries upon persons and corporations failing or refusing to file statements is prescribed.
3. The Ordinary is not responsible to the sheriff for any fees for serving such demand.
4. An Ordinary cannot refuse to make such demand because the State has not furnished him with the necessary f_orms and stationery therefor.
5. No compensation is provided for Ordinaries for such services.
l\Iay 3, 1916. Honorable Henry McAlpin, Ordinary Chatham County,
Savannah, Ga. DEAR Sm: I have ~eceived your favor of the first instant in which you ask my opinion on the following questions, to wit:
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1. Whether or not under Section 10 of the Act of the General Assembly approved November 18, 1915, prohibiting the delivery, reception, keeping, etc., of intoxicating liquors, it is the duty of the Ordinary to file the statements therein required in an orderly manner and to keep an index of such statements. In reply to this question I will say that I think it would be proper for the Ordinary to file these statements in an orderly manner, but the law does not require that the Ordinary prepare and keep an index of such statements. Of course it would greatly vacilitate the work of the other Dfficers of the court if such an index were kept and such an index would very likely be of great service to persons interested in such matters, but there is no requirement in the law for the Ordinary to prepare such index.
2. The second question you ask is whether or not there is any specific form for the demand required to be made by the Ordinary under Section 10 (2) of the above-stated Act upon persons and corporations failing or refusing to file the statements provided for in said Section. In reply I will say that there is no specific form provided by law for this demand. Such a form should in substance state that the named person or corpor:ation has failed to file the statements required under the said Section of the law, and call upon. such person or corporation to file such statements. Such demand should be addressed to the person or corporation in default and signed by the Ordinary in his official capacity and dated.
3. Your next question is whether or not the Ordinary is responsible to the Sheriff for any fees for serving said demand upon the defaulting person or corporation. In reply I will say that the Ordinary is not responsible to the Sheriff for making the service of the demand required under this law.
4.. Your next question is whether or not an Ordinary would be authorized to refuse to make such demand until he has been furnished by the State with the necessary stationery and forms for making the demand. In reply I will say that the law does not make any provision for furnishing the Ordinaries with forms and stationery for the purposes above indicated, but the law does make it the .duty of the Ordinary to make written demand on any person, firm, or corporation failing to file the statements required under this Act. The Ordinary, therefore,
367

could not justify his refusal to make. the demand upon the ground that the necessary forms and stationery had not been furnished him for this purpose by the State.
5. Your next question is whether or not the law provides any compensation to the Ordinary for the services required under the above-mentioned Sections of the law. In reply I will say that no compensation is provided by the law for these services. While it may be true that the Ordinaries are entitled to some compensation for these services, evidently it was the intention of the lawmaking power that the persons seeking the office of Ordinary should be required to accept it with all of its burdens as well as benefits, and that the general compensation allowed to them should be sufficient to cover these services rendered in the interest of the public. These services seem to be regarded merely as incidental to the office, which in itself is sufficient compensation for their due performance. I will say further that there is no source under the law from which the payment for such services could be made. The law does not provide that the cost of such a proceeding may be taxed against the defaulting person or corporation. Under the law the county authorities would not have the power to pay for such services. See Section 513 of the Code. Also Albany Bottling Company vs. Watson, 103 Ga. 502. Also see Houston County vs. Korsch and Wynne, 82 Ga. 252. I hope the above will give you the information you desire.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
Where an automobile dealer sells an automobile under a conditional bill of sale, resei'VIng title In the seller, the buyer of such car must provide the license tag, If he has the control and po"sses sion of the automobile.
Atlanta, Ga., May 9, 1916. Mr. Nathan Coplan, Attorney-at-Law,
Atlanta, Ga. DEAR Sm: I have your letter of the 5th inst., requesting my opinion on the following question: Where an automobile dealer sells an automobile under a conditional bill of sale, reserving
368

title in the seller, is the seller required by law to keep a license tag on the car as owner of the car? In reply, I will say that in my opinion, such vendor is not required to keep such license tag on the car if the possession and control of the car has been surrendered to the vendee. In such case the vendor's title is held for a special purpose only, to wit: the collection of the purchase money. The equitable title charged with the payment of the purchase money passes to the vendee. In such cases, it is a settled rule of law that an equitable conversion takes place, and the property is treated, for most purposes, as if the legal title had passed. The same condition exists as in the case where a bond for title has been given to real estate, and possession surrendered, and part only of the purchase money paid. In the last mentioned case, the principles of law aboYe announced are held to apply. See Windicamp vs. Ins. Co., 4th Ga. Apps. 759 ;Hill vs. Winn, 60 Ga. 337 (3); Williams vs. vs. Amoskeag L. Co., 101 Ga. 641.
Very truly yours,
CLIFFORD WALKER,.
Attorney-General.
The law provides no way for an Ordinary to determine when a transportation company is delinquent is furnishing reports to such Ordinary with statements of the kinds and amounts of liquors, etc., delivered by them to consignees.
Atlanta, Ga., l\Iay 10, 1916. Hon. Henry lllcAlpin, Judge Court of Ordinary,
Savannah, Ga. DEAR SIR: I have your letter of recent date in which you ask me for information on the question as to how you are to determine when the transportation companies are delinquent under the recent Act of the Legislature which requires them to furnish the Ordinaries of the counties with statements of the kind and amount of liquors, etc., delivered by them to consignees. In reply I will say that there is no definite and certain way in which to .determine this question. The law requires all transportation companies to file these statements in the office of the Ordinary within three days after the day of delivery of such liquor. Of course, if no deliveries are made, there are
369

no statements to be made. The I.aw provides no way for you to determine when such companies are delinquent. That matter is left to the best judgment of the Ordinary. The only thing he can do is to act on the best information he may be able to obtain, and when in his judgment according to the information that comes to him, such companies are failing to furnish the stateJ?lents, it is his duty to make the demand required by the law. I am inclined to think, however, that there will be very little trouble on this score, as the companies will very likely comply very strictly with the law.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
City Marshal may procure "search warrant" to raid a place where he has reason to believe whiskey is stored or kept in violation of the law.
1\Iay 11, 1916. Mr. C. T. Chambliss, Clerk,
Broxton, Ga. DEAR SIR: I have your letter of May 9th requesting an opinion on the following question: \-Vhat legal,proceedings are necessary for a City Marshal to raid '1 place in whiclr he has reason to believe whiskey is being stored in violation of the lawY In reply I will say that in my opinion the proper way to proceed in such cases is to swear out a ''search warrant.'' See Section 1325 of the Code. While it has been held that evidence obtained by an unlawful search and seizure is admissible evidence in the trial of a criminal case against the owner of the premises, still it seems to me the proper and legal thing to do in such cases is to proceed by ''search warrant.'' See case of Walker vs. Dawson, 7 Ga. App., page 421. Also see case of Williams vs. State, 100 Ga., page 525. Also the case of Pickett vs. State, 99 Ga., page 12. I hope the above will give you the information you desire.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
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United States laws do not permit the office of Internal Revenue Collector to send -out names of persons, firms or corporations hav ing complied with the Federal laws to deal in liquors, etc.
l\Iay_ 11, 1916. Mr. H. A. Ledbetter,
Newton, Ga.
DEAR SIR: I have your letter of recent date in regard to the matter of your obtaining a list of persons holding wholesale or retail liquor license from the Internal Revenue Collector. In reply I will say that I have had a conference with some of the officials in the office of the Internal Revenue Collector and have been advised by them that under the law they are not permitted to make up these lists or to furnish them to any person, but that the books of this department showing the names of such persons are public property and are open to the inspection of any one. They state further that any Sheriff or any agent for the Sheriff of ~my county may examine these books at any time and make up for himself a list or lists of persons holding such license. They further state that they are willing to co-operate with the State authorities in enforcing the liquor laws, but that they are not permitted to make up and furnish such lists, and that the work in so doing would require a great deal of time and attention which they are unable, on account of the volume of business in the office, to devote to it. I hope you may be able to arrange to get these lists as the law directs.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
No compensation is allowed to Ordinaries for filing statements of the kind and amount of liquors, etc., required to be made by transportation companies.
l\Iay 11, 1916. Hon. C. W. Graves, .Ordinary Tift Co1enty,
'l'ifton, Ga. DEAR SIR: I have your letter of the 6th "instant requesting an opinion from me on the question as to whether or not the law provides any compensation to the Ordinaries of the various
371

counties for filing the statements of the kind and amount of liquors, etc., required to be made by the transportation companies. In reply, I will say that I regret that I have been unable to find a provision for compensation of the Ordinaries for these services. Except in the City-Counties our officers are poorly paid at best and I have always thought that if the great State of Georgia burdens officers with additional duties it is amply able to provide compensation and justice and fairness demand that it should do so. But as in the case of pension work no such provision was made in the liquor legislation. Unfortunately the law is that the county authorities could not legally pay for such services from the funds of the county. See - Section 513 of the Code. Also, see Albany Bottling Works vs. Watson, 103 Ga. 502. See also Houston County vs. Korsch and Wynne, 82 Ga. 252.
)faybe the Legislature will some day be led by a sense of justice to provide fair pay for work required of public servants.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
The terms of office of County Commissioners are not regulated by the Constitution of this State, but are regulated by the Acts creating the Boards of Roads and Revenues.
May 12, 1916. Mr. S. C. O'Kelley, Clerk,
Danielsville, Ga. DEAR Sm: I have your letter of l\Iay 6th in which you request information on the following question: Are the County Commissioners of the State to be commissioned for a term of four years as other county officers, when commissions are issued after the general election in November, 1916? It appears that under the Act of the Legislature of 1914, page 317, creating the office of Commissioner lor Madison ' County, the term of office is to be for two years. You wish to know whether or not since the amendment to the Constitution of this State proposed by the Legislature at its Session in 1914 and ratified by the people on November 3, 1914, the term of office of all County Commissioners is four years.
37!3

The Section as amended is now Article two and Section two, Paragraph one, of the Constitution of this State. This Section as far as it relates to the term of office of the county officers is as follows : _

"The county officers shall be elected by the qualified voters of their respective counties, or districts, and shall hold their office for four years. (Provided that the provisions of the proposed amendment shall not become effective until January l, 1917.)

Article two, Section three, Paragraph one, of the Constitution

of this state provides as follows :

.

. "Whatever tribmial, or officers may hereafter be created by the General Assembly, for the transaction of county matters, shall be uniform throughout the State, and of the same name, jurisdiction and remedies, except that the General Assembly may provide for the appointment of commissioners of roads and revenues in any county."

Article six, Section nineteen, Paragraph one, of the Constitution of this State provides as follows:

"The General Assembly shall have power to provide for the creation of county commissioners in such counties as may require them, and to define their duties."

It will be noted that the only change made in the Section of the Constitution above quoted by the amendment ratified November 3, 1914, was to substitute the word "four" in the third line of the said Section for the word "two," thus leaving the said Section just as it was before the amendment except that the third line as amended reads ''and shall hold their office for four years," whereas before it read "and shall hold their office for two years.''
It will be noted further that the second of the Sections above quoted provides "that the General Assembly may provide for the appointment of Commissioners of Roads and Revenues in any county."
The third of the Sections above quoted provides that the ''General Assembly shall have power to provide for the crea tion of County Commissioners, etc.''
In the case of County of Pulaski vs. Thompson, 83 Ga. 270, (4), the Supreme Court of this State holds that under the Sections of the Constitution above quoted it is not necessary that the Acts of the Legislature creating these Boards of County

'373

Commissioners be alike or uniform in their operation but that there may be a difference in the powers given to the Commissioners, in the manner of their election, in their number and their compensation and in other matters.
The same doctrine is announced by tb :l Supreme Court of Georgia in the case of Commissioners vs. .Americl)s, 141 Ga. 544.
Now, it clearly appears that if under the Constitution as amended the County Commissioners hold their offices for four years, under the Constitution as it stood before the amendment the County Commissioners would hold their offices for only two years, although the .Act creating their offices might provide that their terms of office were to be for four or six years or even for a longer period. If, therefore, the Constitutional provision under consideration before the amendment did not regulate the terms of office of the Commissioners, the same provision as amended could not regulate the terms of office of these officers.
So far as I can find the 'supreme Court has never ruled on the question as to whether or not this Section of the Constitution before the amendment was applicable to and regulated the terms of office of County Commissioners. However, an examination of the .Acts of the Legislature {'nacted since the adoption of the present Constitution even down to the session of 1915 will disclose that at every session .Acts. were passed creating boards of revenues and roads, and that a great many of these .Acts provide that the terms of office of the Commissioners shall be for four years, some far six years, and some for two years. It will be found further that these .Acts provide different methods for electing the Commissioners, some of them providing that they be elected by the Grand Jury. Thus it appears that the construction placed upon these Sections on the Constitution by the members of the Legislature from the adoption of the Constitution to the last session of that body is that the terms of office of County Commissioners are not governed by the provisions of the Sectivn of the Constitution quoted but that the same may be lawfully fixed by the .Act creating the office.
In answer to your question, I will say that in view of the uniform construction placed by the General .Assembly upon the Section of the Constitution above quoted and under consideration, and in view of the doctrine announced by the Supreme Court in the cases above cited, and in view of the other pro-
374

visions of the Constitution, above quoted, to the effect that the ''General Assembly may provide for the appointment of Commissioners of Roads and Revenues, and that "the General Assembly shall have power to provide for the creation of County Commissioners,'' I am inclined to the opinion that the terms of office of County Commissioners are not regulated by the Comstitution of this State, but are regulated by the Acts creating. the Board of Roads and Revenues.
Very truly yours, CLIFFORD wALKER, Attorney-General.
Lawful to sell medicine containing alcohol when sold for use as a drug; unlawful wlien sold and used as a beverage.
l\Iay 15, 1916. Peoples Drug Company,
Glennville, Ga. GENTLEMEN: Replying to your favor of 12th instant, I regret that the law permits me to render official opinions only on the request of the Governor. However, I do not mind saying that my personal view is that it will be held lawful to sell drugs containing alcohol so long as they are to be used in good faith as drugs, but when sold and used as a beverage, whatever.their name or however labeled, it will be unlawful.
Very truly yours,
CLIFFORD vVALKER,
Attorney-General.
Legal to have six gallons or 48 pints of beer under prohibition law passed at Extraordinary Session, 1915.
May 20, 1916. Hon. J.D. Watson,
Thomson, Georgia. DEAR SIR: Replying to your favor of recent date I am of the opinion that under the Prohibition law, a person is entitled to have in his possession under the law a total of six gallons or 48 pints of beer contained in any sized receptacle. You will see this from reading the last two lines of Section 18
375

of the Act wherein beer is expressly exempted from the restric-

tions upon other drinks.

Very truly yours,

CLIFFORD WALKER,
Attorney-General.

Laws governing elections for taxation for school purposes on the county-wide plan. Sections 1534-1535. Does not Include town with special school system before It Is abolished.
Atlanta, Ga., JI.Iay 20, 1916. Mr. J. W. Moon,
Hiram, Ga. DEAR Sm: I have your letter of the 15th inst., in which you ask my opinion on a question involving the following state of facts : The Town of Hiram has a local school system established by an Act of the Legislature. It is situated in a local school district considerably larger than the limits of the town. You wish to have an election called for t~e purpose of determining whether this local school district shall levy a supplemental tax for the support of its schools. The Town of Hiram wishes to abolish its system and become a part of the local school district. You wish to know whether or not the election can be called for the district including the Town of Hiram and the citizens of the said town allowed to vote in the election before the local school system for the town has been abolished by an Act of the Legislature and local taxation for the district including as a part thereof said town thus voted in at said election? In reply, I will say that in my opinion this can not be done for the following reasons : Section 1534 of the Code relating to elections for taxation for school purposes on the county-wide plan contains this provision:
"Provided, that if there be an incorporated town in the county holding the election, as provided in this Section, now operating a public school system, it shall not be included in the election without the consent of the municipal authorities; but if the _ municipal authorities so wish, they may abolish their system by a special Act of the Legislature, and avail themselves of the provisions of this Article."
Section 1535 of the Code relating to local taxation for school
376

districts contains no such provisions as that quoted above. And even if it did, elections can not be held on a mere contingency. If the special system for the Town of Hiram is abolished then the school district is changed from what it was when originally laid out by the County Board of Education for the limits of the town have been included therein. This may necessitate a rearrangement of the district lines. After the election is held the municipal authorities may refuse to have their system abolished, or the Legislature may fail or refuse to abolish the system. All these matters are contingent. An election for this purpose can be held only where the district lines have been definitely fixed and determined. The position of the voter is, at the time he votes, with the lines as thus laid out, and other matters definitely settled, he is in favor of or is opposed to a local tax and so votes. He is entitled to know at the time he votes what the effect of his vote in these matters is to be. For these reasons I do Iiot think a legal election can be held including the Town of Hiram until the special system is abolished and such changes made in the lines of the district, if any, as the County Board may deem best.
Very truly yours, CLIFFORD WALKER, Attorney-General.
One member of the County Board of Health, a "reputable physician," is elected by the Grand Jury of the county.
1\fay 20, 1916. Dr. 0. N. Harden,
Homer, Ga. DEAR SIR: I have your favor of the 17th instant in which you request my opinion as to whether or not under the facts stated you have been legally elected a member of the Board of Health of Banks County. It appears from your letter that at the J\Iarch term of Banks Superior Court (1915) you were recommended by the Grand Jury for membership on this Board. You further state that at the September term, 1915, of said Court no one was recommended for this position and at March term, 1916, of said Court you were again recommended for membership on the
377

County Board of Health. I suppose you mean by the expression "recommended" by the Grand Jury,_ that you were elected by the Grand Jury a member of this Board. Section 2 of the Act of 1914 (Acts 1914, page 124) provides that the Board of Health of each county shall be composed of three persons, to wit: the County Superintendent of Schools, the Ordinary, and one reputable physician "elected by the Grand Jury of the county at the session of the Superior Court for said county next preceding the regular January session of the County Board of Health of said county, or at any succeeding session of said Court.'' The law does not require such physician to be elected by two successive Grand Juries, but he is to be elected, when there is a vacancy by one Grand Jury and not by two Grand Juries. He holds his office for four years. It is provided in the Act above referred to that certain Section thereof, to wit: Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, shall become operative in any county only after the recommendation of two successive Grand Juries. This Section of said Act, which is Section 3, applies only to the sections above mentioned and not to the whole Act. Under the facts stated in your letter I am of the opinion that you are now legally entitled to hold the office referred to in your letter.
Very truly yours, CLIFFORD \V.A.LKER, Attorney-General.
A dog which makes a practice of killing or injurying sheep is a nuisance. A person will not be liable in a civil action for the killing of such dog when done as a fair act of prudence for the_ purpose of protecting his property, reasonable regard being had to the value of the dog, the value of the property menaced and the probability of present or future injury to his sheep or property.
May 25, 1916. Mr. H. E. McPeck,
Alto, Georgia. DEAR SIR : I am in receipt of your letter of l\fay 22nd in which you ask for some information on the subject of the liability of persons killing dogs which are in the habit of killing sheep. In reply I will say that you will find the law on
378

the subject laid down in the case of l\iiller vs. State, 5 Ga. App., page 463. In this case it was held as follows :
"A dog which makes a practice of killing or injurying sheep is a nuisance. The owner of sheep which from time to time have been attacked by such a dog may, without liability to prosecution under the statute against cruelty to- animals, cause it to be killed, even after it has escaped from the place where it attacked the sheep."
In the case cited it was said further:
"Whether the killing of a dog is justifiable or not, as related to a civil case, seems to depend upon whether the killing was done, not necessarily while some act of depredation was in progress, but under such circumstances as that the killing was a fair act of prudence on the part of the person doing the killing, reasonable regard being had to the value of the dog, the value of the property menaced, and the probability of present or future depredations."
The above case held that a dog such as described above could be killed by the owner of the sheep without liability for prosecution under the criminal laws even though the dog was at the time of the killing on the premises of the owner of the dog.
It appears further that a person who was the owner of the sheep attacked or menaced by such a dog would be justifiable in killing the same anQ_ not liable in a civil action for the value of the dog if the killing was a fair act of prudence on the part of the person doing the killing for the purpose of protecting his property, reasonable regard being had to the value of the _dog, the value of the property menaced, and the probability of present or future injury to his -sheep or other property from the dog.
Hoping the above will give you the information you desire, I am,
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
379

Undelivered liquors can be legally reshipped back to the original consignor by the railroads. Illegal to ship to any person except orig_inal consignor.
May 26, 1916. Messrs. Bennet, Twitty & Reese,
Brunswick, Ga. GENTLEMEN: I am in receipt of your letter of :May 23rd in which you request my opinion on the matter of what is the proper disposition for Railroad Companies to make of liquors which can not be delivered under the recent Prohibition Act without being subject to a violation of the law. It appears that in some instances shipments have been made in quantities exceeding that allowed by the laws. In others the consignees have refused to make the necessary affidavits. In others, the consignors have requested a reshipment of the freight to points other than the original destination. In reply I will say that in my opinion in all these cases the only thing the transportation companies can legally do is to transport the freight back to the original consignor. I know of no law which would forbid such reshipment. As to the cases in which the original consignor wishes to have the liquors reshipped to points other than the original destination, I am of the opinion that such reshipment can not be legally made under the provisions of Section 2 o the Act relating to the Delivery, Reception and Keeping of such liquors. See Acts Special Session, page 91. So, on the whole, I am of the opinion that the only safe thing the transportation companies' can do in cases where the whiskey, beer, etc., can not be legally delivered to the original consignee, is to reship the same to the , original consignor.
Very truly yours, CLIFFORD WALKER, Attorney-General.
A Clerk of the Superior Court is not removable from office for dealing in wild lands on speculation.
May 26, 1916. Mr. Folks Huxford, Clerk,
Homerville, Ga. DEAR Sm: I have your letter of May 22d, in which you request my opinion on the question as to whether- or not Para-
380

graph 240 of the Code of 1910 means that the Clerk of the Superior Court is subject to be removed from office in the manner therein prescribed for dealing in wild lands on speculation. In reply I will say that Section 240 above referred to is a part of Chapter 2 and Article 3 of the Political Code. Said Article 3 deals with the office of Comptroller-General. Section 1 relates to the election, bond, and rights of thE? Comptroller-General. Section 2 of this Article deals with the duty of the ComptrollerGeneral. Section 3, which includ~s Paragraph 240 of the Code, deals with the duty of the Comptroller-General with reference to wild lands. Section 4 of this Article deals with the annual report of the Comptroller-General. Sections 5, 6, 7, 8, 9, of the same Article deal with other matter relating solely to. the office of Comptroller-General. Inasmuch as the said Article 3 deals entirely with the Comptroller-General and his rights, powers and duties, I am of the opinion that Section 240 has no reference to the Clerk of the Superior Court and that he could not be lawfully removed under the provision of this Section. The Constitution of this State, Article 2, Section 2, provides the only method for removing county officers from office. This Section provides: "they shall be removed on conviction for malpractice in office.'' See in this connection case of Lancaster vs. Hill, 136 Ga., page 405. This Section of the Constitution contemplates a "conviction" of malpractice in office before a proper tribunal. Section 4897 of the Code of 1910 provides the method and proceedings for the removal of a Clerk of the Superior Court and also the Court in which the action is to be brought. I am of the opinion that the only way in which a Clerk of the Superior Court can be removed from office under the Constitution and laws of this State is that indicated under the above-cited Sections of the Code. Sections 160 lmd 161 of the Code, as well as Paragraph 18, of Article 5, Section 1 of the Constitution of this State, provide the way and manner in which the Comptroller-General may be suspended or removed from office. None of the provisions of law last referred to in any wise deal with the office of Clerk of the Superior Court. All the county officers can be removed from office in the way and manner' Clerks of the Superior Court are removed, and that can be only under the provisions of Section 4897 of the Code.
I hope the above will give you the information you desire. Very truly yours,
CLIFFORD WALKER,
Attorney-General.
381

The publication of notices for an election for no-fence in a county must be published in the official organ of tlie county. Section 2036. Definition of "the public Gazette." Means the official organ of the county.
l\Iay 27, 1916. Hon. W. B. Townsend,
Dahlonega, Ga. DEAR SIR: I am in receipt of your favor of recent date in which you request my opinion on the question as to whether or not the Ordinary of a county is required to publish the_ notices of a petition for an election for no-fence in the newspaper in which the Sheriff's advertisements are published or whether such notices may be published in any other newspaper in the county. In reply I will say that Section 2036 of the Code of 1910 provides as follows:
"'Vhenever so many as fifty freeholders in any county in this State shall petition the Ordinary for the benefit of the provisions of said Sections, said Ordinary shall at once make known throughout the county, by advertisement in the public Gazette, if there be one published in said county, etc."
The answer to your question turns upon a proper construction of the expression "by advertisement in the public Gazette." The question is whether this means any newspaper published in the county or at the county-site or whether it means the official organ of the county. This question has never been passed upon by the Supreme Court of this State. It is therefore very doubtful what the expression above referred to means, and it will require a decision of the Supreme Court to clear up the uncertainty. However, I will say that I am inclined to think that the expression means that the said notices are to be published in the official newspaper of the county. Fo-r the following reasons :
The word "Gazette" is defined in the Standard Dictionary to be ''a newspaper, or printed account of current events issued periodically; specifically, the official bi-weekly government - newspaper of London, Edinburgh, or Dublin, containing lists of bankrupts, dissolutions of partnerships, and annou~cements or honors, promotions, and appointments. Hence, any regular or official announcement or report.'' This word is defined in Black's Law Dictionary to be "the official publication of the
382

English Government, also called the London Gazette.'' The newspaper in which the sheriff's advertisements are published has long been regarded in the counties in this State as the official organ of the county. The Code of 1895 required that legal advertisements should be published in a newspaper in the county if there should be one. By the Act of 1899 it was provided that they should be published in a newspaper at the county-site, if one should be there published and should except the advertisements at the legal rate prescribed. By the Act of the Legislature passed August 15, 1910 (Acts 1910, page 87), provision is made for the selection of the official organ of a county for the publication of legal advertisements. So that by the last mentioned Act of the Legislature there has been established what is known as an official organ of the county. I am inclined to think therefore that the expression "the public Gazette" as used in this Act means the official organ of the county.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.

Registration lists must be revised up to May 7th.

Hon. A. F. Byrd, Ordinary,

JI.Iay 31, 1916.

Baxley, Ga.

DEAR SIR: Replying to your favor of recent date the registration list must be revised as of date 1\iay 7 and should be

completed up to that date by adding all those who have qualified

up to that date. If any man has not paid his tax for the years

1915 or prior thereto or is disqualified for any other reason he

should be struck from the list. You will recall the list is now

a permanent one and it should be purged of all illegal voters. by

striking them from the list whenever their disqualification is

made to appear.

Very truly yours,

CLIFFORD WALKER,
Attorney-General.

383

The citizens of an incorporated town having an independent school system cannot vote in the election held for school taxes on the county-wide plan until such independent school system has been abolished. The property of such citizens located within the incorporated town or city is not subject to such taxes until the independent school system is abolished.
June 3, 1916. Mr. R. D. Thomas, Superintendent,
Blackshear, Ga. DEAR Sm : I am in receipt of your favor of May 30th in which you ask for an interpretation of the following clause of the Act of the Legislature of 1906, page 68, the last part of which reads as follows :
"Provided, if there be an incorporated town in a county, holding an election as provided in this Section now operating a public school system, it shall not be included in the election without the consent of the Municipal .Authorities, but if the Municipal .Authorities should so wish, they may abolish their system by a special .Act of the Legislature and avail themselves of the provisions of this Bill."
You wish to know whether this Section means that citizens living in such incorporated town can not vote in the election, or their property is not subject to be taxed.
In reply I will say that in my opinion under the provisions of Section 1534 of the Code of 1910 which provides for local taxation on the county-wide plan, the persons living in an incorporated town operating a public school system under an Act of the Legislature can not vote in the election for county taxation for the support of public schools of the county unless and until the public school system of such town or city has been abolished by an Act of the Legislature. Neither is the property of such persons which is located within the corporate limits of such town or city liable to taxation for the support of the schools of any county, until such local system has been abolished. However, property located in the county outside of the incorporated limits of such town or city, is liable to the tax provided in this Section, and this is true even though the owner of such property may be resident of the town or city operating the public school system. Also, property which is located in such town or city. would be subject to this tax even though the
384

owners thereof do not reside in the town or city operating the

public school system.

Very truly yours,

CLIFFORD wALKER,
Attorney-General.

1. It is the duty of the Board of County Tax-Assessors to assess the property of any taxpayer which has not' been returned.
2. Such Board would not have to remain in session solely for the purpose of giving dissatisfied taxpayers a chance to serve them with notice of such dissatisfaction.
3. Service of notice upon the Secretary or Chairman of such Board of such dissatisfaction, if, at the time, the Board was not in session, would be good upon the Board.
-4. A separate notice of assessment should be served upon each of such defaulters so assessed.
5. Service of such notice should be served personally, or by leaving the same at the residence or place of business of residents, and by mailing to non-residents.
June 3, 1916. 111r. J. R. Dixon, Clerk,
Metter, Ga.
DEAR Sm : I have your letter of June 1st asking for a construction of Section 1116 (k) of the Code of 1914. This Section requires the Board of County Tax Assessors to act where the taxpayer makes a return of his property and you wish to know whether or not under this Section the Board is required to take action in cases where the taxpayers make no returns. In reply I will say that I think your question is answered by one of the provisions of this same Section, to wit: "It shall be the duty of said Board to see that all taxable property within the county is assessed and returned at its just and fair valuation."
Under this provision it is the duty of the Board to assess the property of any taxpayer which has not been returned and to give the notice to the taxpayer or owner as required in the same Section.
Your next question is whether or not it is the duty of the Board of Assessors to remain in session in order to give dis-
385

satisfied taxpayers a chance to serve them with notice of such dissatisfaction. In reply I will say that if the work of the Board has been finished I do not think they would be required to remain in session solely for the purpose indicated. They might adjourn until some future date within the time required foi: them to act on any notice of dissatisfaction for the purpose of naming their Arbitrator.
I am of the opinion that the dissatisfied taxpayer could serve notice upon the Secretary or Chairman of the Board if at the time the Board was not in session and that this service would be good upon the Board. Within three days thereafter the Board could name its Arbitrator.
Your next question is whether or not the notice, the copy of which is enclosed in your letter, is sufficient under the law for the notice required to be given to tax defaulters. In reply I will say that while it is very likely that this notice is sufficient, yet in order to avoid any possible trouble on the mere form of the notice; I think it would be ,better to prepare a separate notice for defaulters. This notice might state that the property was not returned for taxation and that the Board has assessed the same at a fair valuation and on equality with like property in the county, giving, of course, the assessed value of the property.
Your next question is whether or not it is absolutely necessary that all notices with reference to changes in the valuation of property should be served by officers rather than by mail. In reply I will say that this question is answered by the latter part of Section 1116 (k). It provides:
"It shall be the duty of the lloard to immediately give notice to any taxpayer of any chimge made in his return, either personally or by leaving same at his residence or place of business, or, in case of non-residents of the county, by sending said notice through the United States mails to his last known place of address."
It will be seen from this portion of the Section that it is only in case of non-residents that the required notice can be sent through the mails.
I hope the above will give you the information you desire. Very truly yours,
CLIFFORD WALKER,
Attorney-General.
386

A municipality located in a county where the fence law exists can, by ordinance, impound and sell sto.ck belonging to parties out-
a side of the limits of such municipality when such stock is
found running at large upon the streets of such municipality.

June 3, 1916. lllr. I. S. Ham,
Hagan, Ga. DEAR Sm: I have your letter of 1\Iay 30th, in which you request my opinion on the following question: Can a municipality located in a county where the fence law exists by ordinance, impound and sell stock belonging to parties outside of the town limits provided such stock is found running in the streets of a municipality? In reply, I will say that this question has been answered in the case of Geer vs. Thompson, 4 Ga. App., page 76. In this case the Court of Appeals, in the opinion, says:

"The public streets of a town are not designed for pasturage purposes; nor does it matter that the provisions of the stock law are not applicable to the county in which the municipality is situated. The power of the incorporated town or city to control the territory within the limits of its incorporation is not affected by the fact that beyond its incorporate limits cattle are permitted to run at large. If a municipal corporation, in the exercise of its right to protect the health and comfort_ of its citizens, sees proper to pass an ordinance prohibiting the running at large of cattle or other live stock within its own incorporate limits, this right is of full effect within those limits, regar:dless of what may be the regulations upon the subject of live stock in other portions of the county beyond the incorporate limits. Even at common-law, permitting cattle to run at large upon the streets of a city is a nuisance."

See also the case of Southwestern Sheep Company vs. Thomp-

son, 5 Ga. App., page 211.

The same ruling has been made by the Supreme Court of

Georgia.



See the following cases, Stone vs. Town of Tallulah Falls, 131

Ga. 542; Crum vs. Bray, 121 Ga. 709.

:Mayor of Cartersville vs. Lanhan, 67 Ga., 753; Bearden vs..

Madison, . 73 Ga. 184.

I hope the above will give you the information you desire.

Very truly yours,

CLIFFORD WALKER,
Attorney-General.
387

Lawful to ship back to original consignor, liquors undelivered.
June 5, 1916. Messrs. Bennet, Twitty d'; Reese, Attys.,
Brunswick, Georgia. GENTLEMEN: I have your favor of J\fay 29th, in which you request my opinion on the following question: In a case where a shipment of a quantity of liquors has been made from a point within this State to a consignee in this State, which can not be delivered to such consignee, may the shipment be re-transported by the railroad company to the original consignor at a point within the State 1 In reply, I will say that in my former letter on this subject I had reference only to a shipment of liquors from a point without the limits of -this State to a consignee within this State. J\fy former opinion did not cover the case of a shipment from one point in this State to another point within this State. You will note that under Section 19, page 101, of the Acts of the Legislature of 1915, Special Session, relating to the Delivery, Reception and Keeping of Intoxicating Liquors, it is a violation of the law for a transportation company to accept a shipment of liquors at a point or locality in this State to be transported to any other point or locality in this State. However, I do not find any provision of the Prohibition law making it a crime for a transportation company after having received such a shipment from a point within this State to another point in the State and such shipment not be!ng delivered to re-transport such shipment to the original consignor in this State.
Very truly yours, CLIFFORD WALKER, Attorney-General.
The Department of Agriculture is authorized to compel the disinfection of diseased live stock by compulsory dipping.
June 5, 1916. Mrs. J. S. Smith,
Lexington, Ga., R. F. D. No.3. DEAR MADAM : Your letter of May 31st, addressed to the Governor, has been handed to me for reply. Replying thereto,
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I beg to say that the law authorizes the Department of .Agriculture to compel the disinfection of diseased live stock by compulsory dipping. However, I understand that the Department of .Agriculture has adopted the policy of pursuading the people to do this work voluntarily, and those offending against the law are reported to the Grand Jury only after the other citizens of the county have obeyed the law and the disease is stamped out of the county except in a few cases where the parties have refused to comply with the law. In other words, the law authorizes the officials to force the dipping at their pleasure, but it is actually done only in cases of necessity to complete the work of stamping out the disease in a county.
Very truly yours, CLIFFORD WALKER, .Attorney-General.
The exemption of $5,000, mentioned in the Inheritance Tax Law, does not apply to an estate where the only heirs are first cousins, aunts, and an uncle, and the estate is taxed at the rate of five per cent.
June 6, 1916. Mr. Albert Sidney Camp, Attorney,
Newnan, Ga. DEAR Sm: I am in receipt of your letter of recent date in which you request my opinion on the following matter; an estate of a decedent is worth approximately $3,000.00. The heirs are : first cousins, aunts, and an uncle. In this case would the estate be subject to the Inheritance Tax or does the $5,000.00 exemption apply? . In reply, I will say that in my opinion the exemption does not apply and the estate is subject to the Inheritance Tax at the rate of five per cent. Paragraph one of Section one of the Inheritance Law of 1913 provides for a tax of one per cent. on any amount in excess of the value of $5,000.00 where the estate is transmitted or transferr~d "to any father, mother, husband, wife, child, brother, sister, wife or widow of a son, or any child or children adopted as such, or to any lineal descendant of such decedent, grantor, donor or vendor, born in wedlock."
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It will be noted that a cousin, an aunt, or an uncle is not a lineal descendant of such donor, etc., nor are these relatives included within any of the other degrees of kinship set out therein.
Paragraph two of Section one of this Act provides ''upon a transfer taxable under this Act, of property or any beneficial interest therein, of any amount to any person or corporation, or association other than those enumerated in Paragraph one of this Section, the tax shall be at the rate of five per cent. It will be noted that this latter Paragraph refers to a transfer to persons other than those enumerated in Paragraph one of this Section. It will be further noted that Paragraph two also refers to a transfer of property or any beneficial interest therein of any amount. Cousins, aunts, and uncles, are included in the ex- pression ''to any person other than those enumerated in Paragraph one of this Section.'' Where a transfer is made to persons other than those enumerated in Paragraph one of this Section, in my opinion, the tax is chargeable against property or any beneficial interest therein of any amount. For the reasons above stated I am of the opinion that the estate referred to is subject to an Inheritance Tax of five per cent.
yours very truly, CLIFFORD WALKER, Attorney-General.
1. Every person operating a motor-vehicle, not his own, for hire, unless employed by a licensed dealer, must secure a chauffeur's license.
2. This does not apply to a friend or relative of the owner of such vehicle who occasionally operates the same without receiving any compensation.
3. A person who is employed by another for other services,- but occasionally operates such a vehicle while in such employ, must obtain a license.
4. Such a license is not required by such a person when operating such a vehicle when not in such employment.
June 6, lf.Jl6. Hon. Otho Benton, N. P. and Ex-Officio J. P.,
Donalsonville, Ga. DEAR SIR: I am in receipt of your letter of June 2nd in
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which you request my opmwn on certain questions relating to the interpretation of the recent ::\Iotor-Vehicle Law.
Taking up your questions seriatim I will answer them.as follows: Pirst. Every person operating a motor-vehicle, not his own, is required to ~ecure the chauffeur's license unless Sllch person is an employee of a licensed dealer, or is not operating the same for hire. Second. In answer to the second, third, and fourth questions asked in your letter I will say that the term chauffeur, as used in the Act, does not include a friend or relative of the owner of the car who may occasionally operate the same without receiving any compensation of any kind or character for such services.
Fifth. In answer to this question I will say that the law requires a person who is employed by another for other services but occasionally operates a car while engaged in service for his employer to obtain a license to operate the car.
Si.dh. In answer to this question I will say that I do not think the persons referred to therein are required to have a license to operate cars, provided such persons receive no compensation for such services, and are not operating the car for, or on behalf of, the owner or employer.
Seventh. In answer to this question I will say that if the person operating the car referred to in the question receives no compensation of any kind, either directly or indirectly, from the owner of the car he "ould not be required to obtain a license to operate the same. However, I am of the opinion that the owner of the car would be required to register the same.
I hope the above will give you the information you desire. Yours very truly,
CLIFFORD WALKER,
Attorney-General.
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There is no provision of law or decision of the courts holding that the Clerk of the Superior Court or other trial court is relieved from the duty of filing the bill of exception or making out and transmitting the transcript of the record and the original bill of exception simply because the plaintiff in error has failed to pay the cost. Sections cited. If such costs are not paid, Clerk may get judgment. If plaintiff in error is a non-resident the Clerk may require a deposit of cost in addition to that which is required at the beginning of the suit.
June 6, 1916.
Hon. C. II. Hardison, Clerk Superior Cotwt,
Perry, Georgia.
DEAR SIR: I have your letter of June 3rd, in which you request information on the question as to whether or not a Clerk of the Superior Court is authorized to demand the payment of all costs accrued in cases up to the time of filing bills of exception before he is required to file the bills of exception or ~o make out the transcripts of the records and transmit the same to the Supreme Court or Court of Appeals, or in other words whether or not the Clerk can refuse to file a bill of exception and make out the transcript of the record before the cost accrued in the case up to that time has been paid.
In reply I will say tnat under Section 5167 of the Code it is the duty of the Clerk of the Trial Court when a bill of exception is filed in his office to make a complete transcript of such parts of the record as are specified in the bill and to transmit the same, together with the original bill of exception to the Clerk of the Supreme Court within ten days from the date the bill of exception is filed.
If the case is one which is carried to the higher court by a fast writ of error, it is the duty of the Clerk to transmit the bill of exception and a transcript of the record to the Clerk of the higher court within 15 days from the date of the service of the bill of exception. Civil Code, Section 6153. In the case of in re Contempt, 111 Ga. 89, the Supreme Court holds as follows:
"A failure to transmit either the record or the bill of excep tion within the time prescribed by law, when there is no sufficient excuse for the delay, is a contempt of this court; and a
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failure to certify upon the transcript the true cause of such delay is also a contempt of this court, notwithstanding there may be a sufficient excuse for such delay."
I can find no provision of law or decision of .the courts holding that the Clerk of the Superior Court or other trial court is relieved from the duty of filing the bill of exception or making out and transmitting the transcript of the record and the original bill of exception simply because the plaintiff in error has failed to pay the cost. Section 6165 of the Code referred to in your letter has been a number of times construed by the Supreme Court and the Court of Appeals. In the case of Perkins vs. Rowland, 69 Ga., page 661, the Supreme Court says:
"The statute, it is true, requires the plaintiff in error to enter into bond and pay the cost, _or else, in lieu thereof, file their affidavit. But the failure to do so does not deprive this court of jurisdiction to hear the cause. This failure to pay the cost and give bond, or file an affidavit, simply denies the complaining party a supersedeas to the judgment below, and nothing more. The giving of bond and security upon carrying up of cases to the Supreme Court is optional, not compulsory. Where no bond is given, or affidavit filed, the opposite party is at liberty to proceed to enforce his rights in the court below by execution or otherwise, subject, of course, to the chances of a reversal. Neither will the writ of error be dismissed because the record does not show that the costs in the court below have been paid. If the costs have not been paid, the defendant in error may cause execution to issue, and proceed at once to make it in the court below."
In the case of Bennet vs. Ralf, 4 Ga App, 484, the Court of Appeals of this State held as follows:
"The failure to pay costs and give bond, or to file a proper pauper affidavit in lieu thereof, in excepting to the judgment of the court below, will not deprive this court of jurisdiction. It is only where it is desired that the bill of exceptions shall operate as supersedeas that costs must be paid and bond given or pauper affidavit filed."
See Cummings vs. Clegg, 82 Ga. 776. The Clerk, in cases where the cost for the transcript of the record are not paid nor the affidavit given, may make out a bill of the cost for such transcript and present the same to the Judge of the Court and if the same is found by the Judge
393

to be correct, he may award judgment in favor of the Clerk for such cost. , The Clerk may then have execution issued and proceed to levy the same upon the property of the defendant in error. See Section 5996 of the Civil Code. If the plaintiff in error is a non-resident the Clerk may require a deposit of cost in addition to that which is required at the beginning of the suit. See Section 5987 of the Code.
As to the cost accrued up to the time of filing the bill of exception, I will say that the failure to pay the same does not relieve the Clerk of the duty to make out the transcript and to transmit the same to the higher court. However, the Clerk has .the right to have execution issue for the same and to have it levied on the property of the plaintiff m error, where the proper affidavit is not filed.
Very truly yours,
CLIFFORD vVALKER,
Attorney-GeneraL
Payment of Ordinaries for work done in connection with the prohibition law of 1915.
June 15, 1916". Hon. C. M. Wood,
Newton, Ga. DEAR SIR: I regret that press of official business has prevented an earlier reply to your favor of recent date. I have tried hard to find some law which would justify the payment of Ordinaries for work in connection with the new prohibition laws, but have not been able to find any such authority. I have therefore advised the Ordinaries to procure a cheap file to place the affidavits therein. and do no further work in the matter. The law does not require you to furnish order blanks or assist in ordering wliiskey or beer and I really think it would be improper. to d9 so, as yon might be considered the agent of the whiskey sellers. Your people will have to use the nearest express office or the one most convenient to them. If I cin give you further service or information I will be glad to do so.
Very truly yours, CLIFFORD WALKER, Attorney-General.
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- Registration lists closed automatically six months prior to an election and no person is allowed to vote whose name is not on such lists.
June 15, 1916. Han. John M. Johnson,
Hiawassee, Ga. DEAR SIR: I regret the press of official duties has prevented my answering your letter earlier. I understand that the law provides that the registration shall be closed automatically six months before the general election. It follows that one. who has not paid his poll tax prior to that date can not qualify for the general election next following. He can pay his tax and place his name on the registration list and thereafter become permanently registered but the Registrars make up their lists from those registered prior_ to the six month period.
Very truly yours,
CLIFFORD w-ALKER,
Attorney-General.
The Governor has no_ right under our laws to suspend an officer found derelict in his duty. Proceedings may be instituted in the proper courts.
,June 16, 1916.
Dr. G. T. Hendry, Blackshear, Ga.
DEAR SIR: Your favor of recent date, addressed to the Governor, has been referred by him to me for reply.
I regret to advise that I have been unable to find any law which would authorize the Governor to suspend an officer found derelict in his duty. The scheme ':lf. our laws seems to provide that the enforcement of the laws, both civil and criminal, shall be through the regularly constituted courts. Your remedy would therefore be to institute proceedings through a lawyer either civilly or criminally.
Very truly yours,
CLIFFORD WALKER,
Attorney-Gem~ral.
395

No person is entitled to vote in any election in this State except <lj duly registered voter who has resided in the State twelve months and in the county six months prior to such electio'n and who is at least twenty-one years of age at the date of such election.
Atlanta, Ga., June 16, 1916.
Hon. A. F. Byrd, Ordinary, Baxley, Ga.
DEAR Sm: I have your letter of recent date in which you request some information in regard to the election laws of this State. You wish to know whether or not persons who have not resided in a county for a period of six months before a county primary is held, but who will have resided in the county for said length of time when the general State election is held in November, and who are registered, are entitled to vote in the primary for the nomination of candidates for county offices 1 Also you wish to know whether or not persons who are not of_ age at the time of holding the primary for county officers, but who will be of age at the time of holding the general election, are entitled under the law to vote in the primary for the nomination of candidates for the county offices?
In reply I will say that I do not think such persons are entitled to vote in the primary. I base my opinion on the following Sections of the Constitution of this State:
Code of 1910, Section 34, Paragraph 3 declares:
"To entitle a person to register and vote at any election by the people, he shall have resided in the State one year next preceding
the election, and in the county in which he offers to vote six
months next preceding the election, and shall have paid all taxes which may have been required of him since the adoption of the Constitution of Georgia of 1877, that he may have had an oppor- , tunity of paying agreeably to law. Such payment must have been made at least six months p~;ior to the election, except when such elections are held within six months from the expiration of the time fixed by law for the payment of such taxes.
Section 34, Paragraph 8 of the Code declares:
"No person shall be allowed to' participate in a primary of any political party or convention of any political party in this State who is not a qualified voter."
If a person is not twenty-one years of age he cannot be a
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qualified voter. If he has not resided in the State one year and in the county six months, he ca.n not be a qualified voter.
I hope the above will give you the information you desire. Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.

A marriage is not invalid on account of want of authority in the minister.
1. Common law marriage is recognized. 2. Section 2942 quoted.

Hon. A. B. Kieffer, Springfield, Ga.

June 19, 1916.

DEAR Sm: Replying to your favor of yesterday I am very m:uch pleased to give you my views on the questions submitted.
Replying directly to your question I beg to say that I can

find no legal definition of a minister. However, a marriage is not invalid on account of want of authority in the minister..

1. A common law marriage is recognized. If the parties intended in good faith to be married, .and live together as man

and wife they are considered married in law. 2. Section 2942 of the Code reads as follows:

"A marriage valid in other respects and supposed by the parties . to be valid will not be affected by want of authority in the
minister or justice to solemnize the same; nor shall such objection be. heard from one party who has fraudulently induced the other to believe that the marriage was legal."

Generally speaking a minister is one who has been ordained to preach by some constituted Church. Men do preach, however, who are not regularly ordained and are usually recognized as preachers. If it should become vital to have a thorough definition I will look up the matter in the courts of other States and might be able to help you some. However, I apprehend that the laws referred to above are applicable.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.

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Provisions regarding the "Permanent Qualification Book" discussed.
June 19, 1916. Hon. C. C. Vosburg,
Chairman of Board of Registrars, Ringgold, Ga.
DEAR SIR: Replying to your favor of 17th instant: 1. Any qualified voter who registered since the passage of the permanent registration law became permanently registered until disqualified under_ the law. 2. It is not necessary, though perhaps most convenient in most -counties, that the registration actually be placed in one permanently bound book. Loose leaf books in any number more than one regularly bound books, may be used. 3. It is the duty of the Tax-Collect,w to keep and preserve a book or books showing the name of every voter registered since the passage of the law referred to. This book or books should clearly show just who has been registered. 4. From this book or books it is the duty of the Tax-Collector to transcribe a list of the voters registered and furnish the same to the Registrars. At any time after the passage of the Act he may have prepared such a list. If so, he may comply with the law by furnishing to the Registrars this original list, together with those who may have registered since. 5. It is not the duty of the Registrars to transcribe the list, but they should purge the list furnished by the Tax-Collector.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
Qualification of voters, as to residence.
June 22, 1916. JJfr. J. D. Britt,
Hommville, Georgia. DEAR SIR: Your letter of recent date addressed to the Governor has been turned over to me for reply. In reply I will say that the law requires all voters to register and vote in the county of their residence. A residence of six months in a
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county is required before a voter is permitted to vote. If you are now a resident of Clinch county, and will liave been at the time of the election a resident thereof six months prior to the election, you would be entitled to vote at the election. Very likely it will be necessary for you to apply to the Registrars of Clinch county and make the proper showing and have them place your name on the registration list. In this con,nection see Section 71 of the Code of 1910.
Very truly yours,
CLIFFORD wALKER,
A ttorne.y-General.
Every officer and enlisted man in the National Guard is exempt from road duty and street tax during the time of his service.
June 22, 1916. Mr. Robert L. Smith,
Quitman, Georgia. DEAR SIR: Your letter of recent date addressed to the Governor and asking whether or not a young man belonging to a military company and being trained, and having regular drills, is subject to road duty or street tax. In reply I will say that if the person mentioned is an enlisted man in the .National Guard 'of this State he is not subject to road duty or street tax. Section 1413 of the Penal Code of this State provides as follows :
"E~cry officer and enlisted man of the aforesaid military forces shall be exempt from road duty and street tax during the time of his service."
I hope the above will give you the information you desire. _Very truly yours,
CLIFFORD WALKER,
A t~orney-Genera].
:l99

The Governor of the State can only offer rewards for the capture of criminals, he cannot hire detectives to go into a county to investigate crime.
June 22, 1916. Han. Alfred R. Burgamy,
Warthen, Ga. DEAR SIR: Your letter of recent date, addressed to the Governor and asking whether or not he could send a defective to your county to investigate the case of a young girl supposed to have been murdered, has been turned over to me for reply. In reply I will say that this case certainly ought to be investigated thoroughly. However, the Governor of this State has no authority under the law and has no fund which he is authorized under the law to use in employing a detective to investigate such cases. I suggest that you take up this matter with the County Commissioners of your county, and request them to employ a detective to investigate the case. The Governor, however, would have the authority to offer a reward for the apprehension with proof to convict of a person guilty of this murder if in fact it develops that the girl was murdered.
Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.

Motor Vehicle Law discussed.

Mr. C. W. Hunt,

June ~2, 1916.

Calhoun, Georgia.

DEAR SIR: I am in receipt of your letter of recent date asking some information in regard to the l\fotor Vehicle Law. As I understand it you have a son who is practically grown and

who is very nearly sixteen years of age. You wish to know

whether he is authorized under the recent law to operate a bicycle with a motor attachment to propel the same. In reply I will say that I am inclined to believe that the term motor vehicles as used in Section 2 of the Act approved November

30, 1915 (Acts of 1915, Special Session, page 107), is broad

400

enough to include the vehicle in question. However, there is some doubt on the. question and I do not see where any harm would be done in allowing the boy to operate the bicycle.
Very truly yours,
w CLIFFORD AL~R,
Attorney-General.
Officers of this State under existing laws have the right and authority to take such steps as m,ay be necessary to eradicate cattle tick.
June 22, 1916. Mrs. Nancie A. Ammons,
Dallas, Ga. DEAR MADAM : Your letter of recent date, addressed to the Governor, has been referred to me for reply. In reply, I will say that under the law the officers of this State have the right and authority to take such steps as may be necessary to eradicat(' cattle tick. These officers have the right to quarantine cattle and under reasonable regulations to force the owners of the same to have them sprayed or dipped, where necessary to avoid the infection of other ~at1le. I understand that the officers do not desire to hstitute prosecutions in these cases except where it is absolutely necessary: They desire to work in harmony with the people wherever possible in securing the eradication of ticks.
Very truly yours, Attorney-General.
CLIFFORD WALKER,
It is a misdemeanor for anyone to put poison in a running stream so as to cause the destruction of fish.
June 22, 1916. Mr. John W. Ramage,
Toomsboro, Ga. DEAR Sm: Your letter of recent date, addressed to the Governor of this State, regarding the matter of the poisoning of the waters of a stream in your county and the destruction of the fish therein, has been turned over to me for reply. Replying
401

thereto I will say that under the law the &overnor has no authority in the matter. I suggest that y0u might write Hon. Chas. S. Arnow, Commissioner of Game and !<'ish, of this State. However, it would be well for you also to have the SolicitorGeneral of the circuit look into the matter. Under Section 611 of the Penal Code of this State it is a misdemeanor for any one to put poison in a running stream, so as to cause the destruc-. tion of fish. Also, the putting of poison in a stream under the law is a nuisance, and any party affected thereby would havethe right to apply to the Superior Court for an injunction to abate this nuisance.
Very truly yours,
CLrFFoRD wALKER,
Attorney-GeneraL
No moneycan be paid out of the Treasury without appropriation madeby law.
June 22, 1916. Hon. A. F. Byrd, Ordinary,
Baxley, Ga. DKI.R SIR: Your favor of recent date to Governor Harris regarding the payment of the Ordinaries few paying off pensioners for the years 1915-16 has been turned over- to me for r~ply. You wish to know why the Ordinaries have not been paid the amounts due them for this work.
In reply I will say that the Ordinaries are certainly entitled to their compensation for doing this work. The only trouble about the matter is that while the Legislature in 1914 passed an Act which provided that the Ordinaries should be paid for this work, for some reason the Legislature failed to appropriate any money for this purpose. It is very likely that this appropriation will be made at the ensuing session of the General Assembly. Under the Constitution of this State no money can he paid out of ihe Treasury without appropriation therefor. Article 5, Section 7, Paragraph 11 of the Constitution (Section 5440 of the Code) provides as follows: "No money shall be
402

drawn from the Treasury except by appropriation made by

law."

I hope the above will give you the information you desire.

Very truly yours,

.

CLIFFORD \VALKER,

Attorney-General.

Juvenile Co~:~rt has authority to commit to the State Reformatory.
June 26, 1916. Judge C. N. F'eidelson,
Savannah, Ga. DEAR sm: While doubting, because of lack of express authority in the law, I believe the spirit of the law should be considered and I have therefore ruled that the Juvenile Court has authority to commit to the State Reformatory.
Very truly yours, CLIFFORD '\VALKER, Attorney-General.
Where necessary the "Permanent Qualification Book" may include several books.
June 27, 1916. Hon. A. B. Robertson,
Ringgold, Ga. DEAR Sm: Replying to your favor of yesterday I regret to have to disagree with you as I must say you present your case in a very strong light: The best of lawyers disagree and are wrong at times. In one case recently all the living ex-Justices of the Supreme Court were declared to be wrong by the then existing court. The Act of 1913 provides "that from and after the passage of this Act (approved August 19, 191B) the Tax-Collectors of the several counties of this State are required to keep a book to be called a permanent qualification book, etc." It is true that the Act refers to "A book" and elsewhere refers to that book. as the "Permanent Qualification Book." However, it is well known that in the County of Fulton numbers of books
403

are required for the registration of voters. In some of the counties loose leaves are used which are later assembled in a book or books. These facts, together with the spirit of the law as shown throughout the text show that the desired end was to make registration after the passage of the Act permanent and that not the book itself was vital.
The law presumes that all men, both priva~e and official, have knowledge of the law. The Act of August 19, 1913, requires the Tax-Collector to forthwith provide and keep a permanent qualification bo.gk. With a knowledge of that law a citizen presents himself for registration and does actually register upon a book supplied by the Tax-Collector, has a right to presume that he is legally registered, and it would be inequitable and unjust in light of the law which says that he ''shall not thereafter be required to register or further qualify" to deprive him of his right to vote. The qualification, it will be noted, is the same as that provided by the law under the old registration. The sole question is as to whether the book itself is vital. I am clear that the Legislature did not intend that such a technicality should be permitted to deprive a voter of this most vital right.
It is but fair for me to say that our records show that this ruling has been made a number of times montha ago and could not be considered as partial to any interest in your county.
Very truly yours,
w CLIFFORD .A.LKER,
Attorney-General.
Act of Legislature requ1r1ng judge of Superior Court to hold fourterms a year In a certain county Is a general law. A municipality can rent Its school buildings.
July 6, 1916. Mr. W. I. Geer, Attorney at Law,
Colquitt, Ga. DEAR SIR : Your letter of June 30th received. I note the information asked in the letter. In reply, I will say that as the Attorney-General is required under the law to give his official
404

opinion only at the request of the Governor and in relation to any question of law connected with the interest of the State or the duties of any of the State Departments, I could not give you an official opinion on the question asked. I might say, however, as a lawyer, that I think your first question as. to whether or not a local law or Act of the Legislature requiring a judge of the Superior Court to hold four terms of the court per year in a county is contrary to the general law or to the constitution, is answered by the case of Burge vs. Mangum, sheriff, 134th Ga., page 307. I do not think such an Act, having such a purpose, would be a local Act, but would become a general law. See Section 6517.
As to your second question, I think that if the title to the schoolhouse is in the municipality, and there are no restrictions on the ownership, such municipality could charge rent ther~for. Of course, if the town does not. own the property, or does not have the right to its possession, it could not charge the rent.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
Dog Is a domestic animal and ~herefore must be given in for taxation.
July 8, 1916. Hon. J. E. Dubberly, Tax-Receiver,
Brunswick, Ga. DEAR Sm: I have your letter of July 5th requesting information on the matter of the dog tax. You wish to know whether or not a person who is the owner of a dog is required to return the same for taxation although a transportation company is not liable in an action at law for the negligent killing of a dog. In reply, I will say that in this State a dog has been declared by the Supreme Court to be a domestic animal within the meaning of Article seven, Section two, Paragraph one, of the Constitution of this State (Code 6553). See the case of Wilcox vs. State, 101 Ga. 563. The tax, therefore, upon dogs found in Section 972 of the Code of this State is legal and valid according to the ruling of the Supreme Court. Also in the case of Jemison
405

vs. Southwestern R. R., 75 Ga. 444, the Supreme Court of this State held that a dog is property in a qualified sense and that the owner may maintain an action against another for damages for the wanton and malicious killing of his dog.
Very truly yours, CLIFFoRD wALKER, Attorney-General.
The persons qualified to hold elections are Ordinaries, Justices of the Peace, and freeholders;
July 8, 1916. Hon. A. F. Byrd, Ordinary,
Baxley, Ga. DEAR Sm: I have your letter of July 4th, asking what persons are authorized under- the law to act as managers of an election. Section 76 of the Code provides that persons qualified to hold elections are Ordinaries, Justices of the Peace and freeholders. There must be three superintendents, and one must either be an Ordinary or a Justice of the Peace, except in certain cases not provided for in this Section.- See Section 77 of the Code. Section 81 of the Code provides that if by ten o'clock a. m. on the day of the election, there is no proper officer present to hold the election, that is to say, if there is no Ordinary or Justice of the Peace present to hold the election, or if there is one and he refuses to act, three freeholders may superintend the election. Section 116 of the Code provides that election for a Justice of the Peace may be held by three freeholders appointed by the Ordinary. Section 120 of the Code provides that elections for Constable are to be held in the same manner as elections for Justice of the Peace.
Yery truly yours, CLIFFORD wALKER, Attorney-General.
106

Where the joint service of an acting Ordinary and an elected Ordinary is required to make out pension rolls and perform other
- necessary service in connection with the payment of such pensions, etc., they are jointly entitled to the fees for such services. to be divided proportionately between them.
July 8, 1916. Hon. J. P. Chambers, Clerk of Superior Coul't,
Dawsonville, Ga. DEAR Sm: I have your letter of July 6th asking for some information on the following matter. It appears that the Ordi- _ nary of your county resigned on December 31st, 1915, and that as Clerk of the Superior Court you acted as Ordinary until the 18th day of January, 1916. During this time you made out the pension rolls for the year. Mr. Kay assumed office on or about January 18th and sent out the checks in payment of the pensioners in your county. You wish to know who is entitled to the fees provided' by 'Section 1511 of the Penal Code, for this work. In reply I will say that the Section above referred to provides that the Ordinaries shall be allowed a fee of $1.00 per capita per annum, for preparing all papers and proofs, fixing up and preparing the annual pay rolls for securing, receiving, and paying out the pension to the various pensioners of their respective counties, which shall be in full settlement for all services to be performed in connection with the pension rolls of their county. From this it will appear that neither yourself nor ::\Ir. - Kay has performed all the services to be performed in connection with the pension rolls of the county. It requires the services of both you and 1\Ir. Kay to entitle you to such pay. In my judgment the application for the fees would have to be made by you and :l\Ir. Kay jointly setting out all the facts in the case, and that the payment would have to be made to both of you jointly. \Vhen the payment is made it will be necessary for you and .Mr. Kay to reach an equitable adjustment between yourselves as to the amount each is to receive.
Yours very truly,
CLIFFORD \V~\I,KER,
Attorney-Gimeral.
407

Commissioners can require Tax-Collector to make monthly statements and pay over any moneys due to be paid. If he fails or refuses to do this, they can suspend him from office and appoint some one else as Collector to act until the defaulting Collector can be tried before the Superior Court. Defaulting Collector forfeits all commissions. Commissioners can issue a fi. fa. against the defaulting Tax-Collector and all the sureties on his bond.
July 8, 1916.
Hon. W. E. Champion, Chairman, Ft. Valley, Ga.
DEAR Sm: I have your letter of July 5th in which you request information on the following question: you state that the Tax-Collector of Crawford County is behind with the county about $12,000 and that you are unable to get a settlement out of him or to get a report from him. You wish to know what steps the County Board of Commissioners are to take.
In reply I will say, that under Sections 527, 528, of the Code, the Commissioners have the authority to call upon the Tax-Collector and require him to make the monthly statements as required by law and to pay the money in his hands over to the Treasurer of the County. If it appears upon the investigation that he is due the county any money or fails to make such reports the Commissioners have the authority to suspend him from office and appoint another person to act as Tax-Collector until there can be a trial before the Superior Court. Also under Sections 521, 522 and 523 of the Code, the Commissioners have the power and authority to issue a f( fa. against the defaulting tax-collector and all sureties on his bond, and in this way proceed to collect the amount due by him to the county. In this connection see the case of County of Pulaski vs. Vaughan et al., 83 Ga., page 270; also the case of Greer vs. Turner County, 138 Ga., page 558, also in this connection see the case of Sayer vs. Brown, 119 Ga., page 539. It will be noted that under Section 1190 of the Code of the TaxCollector's bond binds the property of his sureties from the time of the execution of the bond. Also it appears that under Section 1216 of the Code that where the Tax-Collector fails to pay over the money in his hands belonging to the county or
408

fails to make the reports required by law he forfeits all of his commissions.
I hope the above will give you the information you desire. Very truly yours,
w CLIFFORD Al;KER,
Attorney~GeneraL
The General Assembly may create the office of County Commissioner for a county for a term of less than four years and may create an office and name the person to fill it,
July 11, 1916. Hon. E. Z. Arnold, Chairman,
State Capitol, Atlanta. DEAR SIR: Referring to the Bill of l\Ir. Cook, of Telfair, I beg to say that on a casual inspection of the general law and particularly the authority of Mechem on Public Offices and Officers, I seriously questioned the right of the Legislature to create a position and at the same time fill the position by appointment. However, after thorough investigation, I find that the rule in this State differs from the general rule and it is clear that not only by precedent but by express authority that such action is. legal. This is held in the case of Lambert vs. Norman, 119 Ga~ 351, and the Mayor and Council of Americus vs. Perry, 114 Ga. 871. In as much as County Commissioners are elected in this State for two, four, or six years, the provision in Mr. Cook's Bill fixing the term at less than four years is not illegal.
Very truly yours,
CLIFFORD WALKER,
Attorney-GeneraL
409

The same qualifications for managers of regular elections apply to managers of primary elections.
July 19, 1916. Hon. A. F. Byrd) Ordinary,
Baxley, Ga. DEAR Sm: I have your letter of recent date asking whether <>r not the same rules of law governing regular elections so far .as the same .relate to the managers thereof is applicable to the selection of managers for primary elections. In reply I will say that Section 127 of the Code provides as follows:
"Every political primary election held by any political party, organization, or association, for the purpose of choosing or select ing candidates for office, or the election of delegates to conven tions in this State, shall be presided over and conducted in the manner and form prescribed by the rules of the political party, organization or association holding such primary elections, by managers selected in the manner prescribed by such rules. Such managers shall, before entering upon the discharge of their duties, each take and subscribe an oath that he 'Will fairly, impartially, and honestly conduct the same according to the provisions of the law providing how primary elections shall be held in this State, and in accordance tcith the laws of this State governing regular elections for the offices of t]],is State.'"
Paragraph 2, on page 5 of the Rules and Regulations of the State Democratic Committee of this State adopted l\Iay 3, 1916, provides as follows:
"The Primary election shall be conducted in accordance with the laws of this State and the customs of the party in so far as those customs do not conflict with existing laws."
Section 76 of the Code provides that Ordinaries, Justices of the Peace and Freeholders are the persons qualified to hold elections. In my opinion only Ordinaries or Justices of the Peace <>r Freeholders are qualified to act as managers of primary elections in this State.
I hope the above will give you the information you desire. Very truly yours, CLIFFORD WALKER, Attorney-General.
410

It is now too late to carry a case to the Supreme Court, tried in the Superior Court in 1912.
July 20, 1916. lllr. Chester A. H olzendorf,
Kingsland, Georgia. DEAR Sm: Your letter of the 13th instant addressed to Honorable \Villiam A. \Vright has been turned over to me for reply. You wish to know whether or not it is now too late to carry a case to the Supreme Court for review, which was tried at the fall term of the Superior Court in 1912. In reply I will say that it appears that a trial was had in this caee at the fall term of the Superior Court of Camden County in 1912. A judgment was rendered partly in your favor and partly against you. If you had desired to carry this case to the Supreme Court it was necessary that a motion for a neyv trial be filed dmi.ng the term of the court at which the judgment was rendered. If the term of court lasted longer than thirty days the motion must have been made within thirty days. From the facts stated in your letter I judge that it is now too late to file a motion for a new trial and carry the case to the Supreme Court for review.
Very truly yours,
CLIFFORD wALKER,
Attorney-GeneraL
Whether a municipal corporation would have a right to levy an occupation tax upon a soft drink bottler of another municipality, who sent out and delivered bottled drinks to regular customerso in such first named municipality would depend upon the charter powers and ordinances of such municipality.
July 21, 1916. Chero-Cola Company,
Vidalia, Ga. GENTLEMEN: I have your letter of recent date, requesting my opinion on the following matter: It appears that your company is engaged in the business of bottling soft-drinks. You maintain a bottling plant, I suppose, in the town of Vidalia, Ga. From this point you send out to the various towns and cities
411

bottled soft-drinks and deliver them to your regular patrons or customers in these towns. I assume from your letter that you have regular patrons in these cities and towns and that you habitually sell and deliver to them the goods mentioned, and that the delivery is made in trucks or vehicles owned by your company and by your agent or employees. You wish to know whether or not you are subject to an occupation or business tax imposed by the various towns and cities in which these regular -sales and deliveries are made. In reply, I will say that in the first place, this will depend on whether or not the particular , town or city imposing the tax has charter power to impose such .a tax. In the second place, an answer to your question would depend upon whether or not the tax ordinance of any particular town or city is broad. enough to cover the kind of business you .are carrying on in the city. However, if the town or city has the charter power to levy such a tax, and the ordinance imposing the same is broad enough to. cover the business you are .engaged in, I am of the opinion that the municipal corporation could enforce the tax. In this connection see the case of Davis vs. 1\iayor, etc., of 1\facon, 64 Ga., page 128, also see the case of Gunn vs. 1\fayor, etc., of 1\:'facon, 84 Ga., page 365.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
1. Where there is a school district, portions of which are in two counties, one of the counties having county wide tax for school purposes, and the other county having local school district tax system, the portion of such district in such latter county could not hold an election for the purpose of adopting a local tax for school purposes.
:2. An election could be called by the Ordinaries of both counties, covering the entire district, to vote on the question as to whether or not a tax system for school purposes should bei adopted by the district.
July 21, 1916. llfr. H. J. Parker, Su'[Jerintendent of Schools,
Baxley, Georgia. DEAR Sm: I have your letter of recent date requesting my -opinion on the following matter: The Counties of Appling and
412

Wayne have a county line School District, which was established by the concurrent action of the County Boards of Educa. tion of the respective Counties. The County of Wayne has local taxation !or the support of schools on the county wide plan. Appling County has not adopted the plan of local taxation for the support of the schools. A portion of the school district referred to is in Wayne County where a local tax is collected, and a portion of the district is in Appling County, where no such local tax is levied. The schoolhouse for this district is located in that part of the district which is in Wayne County. It now appears that the people living in that part of the district which is in Appling County desire to vote on the question of local taxation for this district or for the part of the district which is in Appling County. You wish to know whether the Ordinary of Wayne County or the Ordinary of Appling County should call the election for the portion of the district lying in Appling County. In reply I will say that your request presents a very difficult question, and one which involves a case not covered by the provisions of the law. In the first place there is no provision of law for holding an election in only a part of a school district and I do not think such an election can be held, legally. Next questio.n is, whether or not a district election can now be held for the entire district including that part thereof which is in Wayne County and which is already operating under the county wide plan. The law makes no provision for a case of this kind, and there is considerable doubt as to whether or not such an election can be held. However, I am inclined to the opinion that it would be legal to call and hold an election for the entire district, including the portion thereof lying in Wayne County. The only provision of the law relating to the question is found in the Act of the Legislature approved August 15th, 1910 (Acts 1910, pages 34 and 35). This Section provides that the Ordinary of the county in which the schoolhouse is located shall order the election. From this it appears that the Ordinary of Wayne County is authorized to call the elec.tion for the entire district. There is no other provision of law which applies to the case. However, I would suggest that as a matter of caution you have the Ordinaries of both counties to issue an order calling the election for the entire district and let the election be held under the concurrent orders
413

of the Ordinaries of both counties. This could do no harm and it would serve to meet any objection that might be urged to the calling of the election on the ground that the same was not called by the proper authorities.
Your next question is whether or not an election can be held now and be in time to have the tax levied and collected for this year in the event the election for the local tax is carried. In reply I will say that if the election is held in time for the County Commissioners to receive the rate and include it in the regular tax levy for the county, the tax may be collected for this year. In this connection see Section 1537 of the Code.
I hope the above >vill give you the information you desire. Very truly yours,
CLIFFORD WALKER,
Attorney-GeneraL
Holding an election for local taxation. Section 1537. Cairo Banking Company vs. Ponder, Tax-Collector, et al.,- 131 Ga. 708.
July 22, 1916.
Mr. T. N. H1trst, Luthersville, Ga.
DEAR SIR: Your letter of recent date, addressed to Ron. Warren G'rice, has been turned over to me for reply. You say: "In September, 1914, I wrote you, asking you how late in the year 1915 we could hold an election for local taxation (1\Icl\Iichael School Law) and collect tax for the year 1915. Your reply was this : '' 'Provided you hold your election in time for the County Commissioners to receive notice and include it in fixing the rate for. 1915.' " You request some authorities on the question of the legality of a local school tax where the election for the same was held and the rate fixed at or before the fixing of the rate of taxation for the county for the year, although the complaining parties had previously made their tax returns for State and County purposes. In reply, I will say that Section 1537 of the Code seems to cover the case. Also the
414

ease of Cairo Banking Company vs. Ponder, Tax-Collector, et al. 131 Ga., page 708, seems to be directly in point.
Very truly yours,
CLIFFORD \VALKER,
Attorne):-General.

Question of taxes upon ten thousand doll~rs bequeathed in a will to a person.

Honorable William Galt, Canton, Ga.

July 24:, 19'16.

DEAR SIR: In response to your request for an opm10n in

the matter of taxes upon the ten thousand dollars bequeathed to Mrs. l\Iary R. Brown, under the first item of the codicil to

a will of James R. Brown, who died ::\larch 2. 1915, and whose

will was probated June 7, 1915, I beg to say that I have care-

fully considered the matter and am of the opinion that the state is liable for the taxes. Under tlw new tax equalization law, taxes are made ,to mature and be due on property and

valuations are fixed thereon as of January 1st of each year. The will in effect directed that on ::\Iarch 2, 1915, the sum of

ten thousand dollars be paid to Mrs. Brown. It appears clear to me that that sum and not the sum less the taxes should

be made available. Of course this is only the opinion of a lawyer and it may

be incorrect though I have considered the matter carefully.

Very truly yours,

. CLIFFORD W.-\LKER,

Attorney-General.

The fact that there is a State tax on dealers in cigarettes would not prevent a municipality from levying a business tax on the same business.
July 26, 1916. Dent's Pharmacy,
Glennville, Ga. GENTLEMEN: I have your letter of recent date, requesting my opinion on the question as to whether or not the City of Glenn-

ville has the authority to levy a business tax of $25.00 on your company for engaging in the business of selling cigarettes, although you have already paid State Tax of $25.00 on this bu~i ness. In reply, I will say that the fact that you are required to pay the State Tax on the business of dealing in cigarettes would not prevent the city from levying a business tax on the same business. In this connection see the case of l\fayor and Aldermen of Savannah vs. Cooper, 131 Ga., page 670.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.

House Bill No. 756 is constitutional.
July 27,1916. Hon. D. B. Bullard, Chairman,
House of Representatives. DEAR Srn: I am returning herewith House Bill No. 756 and beg ~o advise that in my judgment the bill is constitutional. The Court of Appeals in the case of First District Agricultural and Mechanical School et al. vs. Reynolds, decided that a contract made by the Trustees of said school for the purchase of furniture to equip the school was within the scope of the authority delegated to them and is enforceable against the school and trustees thereof in their official capacity. It is further held that such schools are not such public institutions of the State as would be exempt from suit on contract made by their Trustees within the scope of the authority delegated to thein by the terms of the Act of 1906, page 72.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.

A municipality is authori_zed to exact a license on pool rooms.

Mr. A. L. Mallary,

July 31, 1916.

Thomaston, Ga.

DEAR SIR: Replying to your favor of Saturday, I regret to

416

advise that you have been misinformed at: tl' the law. It is legal for a city to exact a license upon pool rooms.
Very truly yours,
CLIFFORD WALKER,
-Attorney-Gen~ral.
If a person in good faith intends to retain his citizenship in a certain county, he does not forfeit such citizenship while temporarily out of such county.
July 31, 1916. Hon. James R. Grant,
Toccoa, Ga. DEAR Sm: Replying to your favor of 28th instant I beg to say that in my opinion you are entitled to receive your salary under the facts set out in your letter. While temporarily attending his wife, who is under the care of physicians, a man may remain out of his county for weeks or months and still retain all rights of citizenship. The sole question is whether or not you are in good faith retaining your citizenship in Jeff Davis County. If you are you have a right to retain your position and to receive your salary.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
In order for one to be qualified to the office of County Superintendent of Schools he must have had three years' practical experience in teaching (one year in Georgia) holding a first grade license, or shall have a diploma from a reputable college or normal school, or. have had five years' experience in actual supervision of schools, or shall stand an approved examination before the State Board.
August 1, 1916. Hon. John M. Johnson,
Hiawassee, Ga. DEAR SIR: Replying to your favor of 29th instant the qualifications for County Superintendent of Schools are set out-in Acts
417

of 1911, pages 94 and 102. See also, Park's Code, Section 1565 (q).

Three years' practical experience in teaching (one year in

Georgia), holding a first grade license, a diploma from a college

or normal school, or five years' experience in actual ' super-

vision of schools, standing an approved examination before the

State Board qualifies one for holding this office-any one of the

qualifications stated being sufficient.

.

Very truly yours,

CLIFFORD wALKER,
Attorney-General.

A person once registered on the permanent qualification book does not have to register again unless he becomes disqualified for some reason known to the law.
August 4, 1916. Hon. Charles Vosberg, Chairman,
Board of Registrars, Catoosa County, Ringgold, Ga.
DEAR SIR: On August 19, 1913, the Legislature passed an Act known as the Permanent Registration Act. It is the opinion of this office that any citizen who registered after this date is permanently registered and cannot be required to register again unless disqualified for some reason known to the law. Such persons are entitled to vote and the Tax-Collector should include the names of such persons in his list furnished to the Registrars and the Registrars should place their names on the voters' list, provided, as indicated, that subsequent to their registration they have failed to pay their taxes or otherwise disqualified themselves. In this case, they must qualify by removing their disabilities and then register anew.
This is not intended as a full opinion but a copy of the full opinion will be furnished if necessary.
The effect of this opinion is to hold that the book itself is not vital. The permanency of the registration after the date stated is the important thing. The Tax-Collector should have been provided with a permanent registration book immediately.
418

Failure should not and did not penalize citizens who regis~ tered before such a book was furnished.
Very truly yours,
CLIFFORD wALKER,
Attorney-General. ,
1. There Is no law which would prevent a deputy sheriff from being also a member of the County Board of Education.
2. A sheriff's sale on the Fourth of July is legal.
August 4, 1916. Hon. A. J. Walker,
Oobbville, Ga. DEAR Sm: Replying to your favor of recent date, I ean find no law which makes it unlawful for a inan to act as DC>puty Sheriff and at the same time serve on the County Bn:H'd of Education. Likewise I have not been able to find any lnw IYh;l'h makes it unlawful for a Sheriff to sell property on the f,Jnrth day of July.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
/
The law does not provide rewards for the arrest of criminals unless the reward be specifically and specially offered and advertised by the Governor.
August 4, 1916. Mr. R. F. Salter,
Smithville, Ga. DEAR SIR: Replying to your favor of yesterday the law provides no rewards for the arrests of criminals unless the reward be specifically and specially offered and advertised by the Governor. I presume no such reward was offered or you would' have heard of it. If there was you would be entitled to it.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
419

A citizen who has served in the United States Army during his full term of enlistment is not exempted thereby from the payment of street tax.

Calhoun & Askew, Attorneys, Arlington, Georgia.

August 7, 1916.

GENTLEMEN: Replying to your favor of recent date asking

whether or not a citizen who has served in the United States

Army during his full term of enlistment is exempt from the payment of street tax I beg to say that I have been unable to find any law exempting such a person. The only law concern-

ing .exemptions from street tax is found in the Penal Code rela-

tive to men in the National Guard of the State, and then only

while actually enlisted.

'

Hoping the above is the information you desire, and with

kind personal regards, I am,

Very truly yours, CLIFFORD WALKER,

Attorney-General:

A Bill to abolish the Board of Roads and Revenues of Murray County and a Bill introduced to create a Board of Supervisor's of Roads and Revenues for Murray County. Constitutionality discussed.
August 7. 1916. Hon. E. H. Beck,
. State Capitol, Atlanta. DEAR Sm: I am in receipt of your request of the 4th instant for an opinion on the following matter : A Bill has been introduced in the General Assembly providing that the Board of Roads and Revenues of 1\furray County be abolished. It is provided in this Bill that the repeal of the law creating said Board shall not go into effect unless. the same is approved by a majority of the voters. of the said county at an election to be held on this question. If a majority of the voters at said election favor the repeal of the Board, the said Board is to be abolished as provided in the Bill. A subsequent Bill has been introduced providing that a Board of Supervisors of Roads and Revenues for this same county, and further providing that said
420

Act creating said Board of Supervisors shall not become effective in said county until the same has been submitted to and approved by the qualified voters of said county at an election to be held for that purpose. You wish to know whether these Bills or either of them, if they are both enacted into law; will be invalid or unconstitutional solely on the ground that it may result that they are in conflict with each other, or repugnant to each other.
In reply, I will say that I confine my answer strictly to the question asked and do not consider whether or not either of these Bills will be invalid upon any other grounds.
I understand the law on this subject to be as follows: Where an Act contains certain Sections that inay be considered in conflict with a following Section, or where two Acts contain Sections that may be considered in conflict with each other, but the intent of the Legislature can be arrived at, and its real purpose carried out, by giving effect to the later Section and others in harmony with it, the Act does not become inoperative because of the conflict. Hand et al. vs. Stapleton et al, 135 Alabama Rep., page 156.
A Legislative Act incapable of interpretation and enforcement because of irreconcilable conflict of meaning between its principal provision will be held inoperative and void. See the case of In re Ed Hendricks, 60 Kansas Report, page 796.
The only conflictthat could arise in the two Bills under consideration would result from the following contingency: That the people at the election should vote against the repeal of the old Commission and at the other election vote to adopt the law providing for the Board of Supervisors. This, of course, is not at all likely to happen, but still it is a possibility. However, in the event such a contingency should arise I am of the opinion that no real conflict would exist for the reason that under numerous rulings of the Supreme Court of this State the expression of the Legislative will is held to prevail. The law, therefore, would be construed as repealing. the former Act by implication and would constitute the law on the subject. In the case of l\Iacon & Birmingham R. R. Co. vs. Gibson, 85 Ga., page 20, the Supreme Court held: "The rule, so far as w~ know, is universal that where there is an irreconcilable conflict between
421

two statutes, the later of the two must prevail and the former give way."
For these reasons I am of the opinion that the statutes m question would not be invalid or unconstitutional because of any inconsistency or repugnancy between them.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
Filing of campaign expenses by candidates for Congress.
August 8, 1916. Mr. Thomas A. Lang, Atty.,
Calhoun, Ga. DEAR Sm: Your letter of recent date asking for information relative to the filing of campaign expenses by candidates for Congress, was duly received. In reply, I will say, that the law on this subject is contained in an Act of Congress of August 19th, 19il, and another Act of August 23rd, 1912. The first of these Acts provides in part as follows :
"Every person who shall be a candidate for nomination at any primary election or nominating convention, or for election at any general or special election, as Representative in the Congress of the United States, shall, not less than ten. or more than fifteen days before the day for holding such primary election or nominating convention, and not less than ten or more than fifteen days before the day of the General or specia1 election at which candidates for Representatives are to_ be elected file with the Clerk of the House of Representatives at Washington, District of Columbia, a full, correct, and itemized statement of all monies, and things of value received by him or by any one for him with his knowledge and consent, from any source, in aid or support of his candidacy, together with the names of all tho~e who have furnished the same in whole or in part; and such statement shall contain a true and itemized account of all monies and things of value ~iven, contributed, expended, used, or promised by such candidate, or by his agent, representative, or other per son for and in his behalf with his knowledge and consent, together with the names of all those to whom any and all such gifts, con tributions, payments, or promises were made, for the purpose of procuring his nomination or election."
"Every such candidate for nomination at any primary election or nominating convention, or for endorsement or election at any general or special election, or for election by the Legislature
422

of any State, shall, within fifteen days after such primary elec tion or nominating convention, and within thirty days after any such general or special election, and within thirty days after the day upon which the Legislature shall have elected a Senator, file with the Clerk of the House of Representatives or with the Secretary of the Senate, as the case may be, a full, correct, and itemized statement of all monies and things of value received by him or by any one for him with his knowledge and consent, from any source, in aid or support of his candidacy, together with the names of all those who hav~ furnished the same in whole or in part; and such statement shall contain a true and itemized account of all monies and things of value given, contributed, expended, used, or promised by such candidate, or hy his agent, representative, or other person for and in his behalf with his knowledge and consent, up to, on, and after the day of such primary election, nominating convention, general or speci~l election, or election by the Legislature, together with the names of all those to whom any and all such gifts, contributions, payments, or promises were made for the purpose of procuring his nomination, endorsement, or election."

The said Act of 1912. provides as follows:

"Every statement herein required shall be verified by the oath _ or affirmation of the candidate, taken before an officer authorized to administer oaths; and the depositing of any such statement in a regular postoffice, directed to the Clerk of the House of Representatives or to the Secretary of the Senate, as the case may be, duly stamped and registered, within the time required herein, shall be deemed a sufficient filing of any such statement under any of the provisions of this Act."

I have not quoted all of the provisions of these Acts as they are very long and it would be well for the person making the

statement to read the Acts carefully before making up their

statement.

Very truly yours,

CLIFFORD WALKER,
Attorney-General.

423

A sheriff does not have to pUblish report of his inspection of the books of the United States Internal Revenue Collector unless there are persons from his county having secured liquor Ji. censes. The sheriff is entitled to his fee of $25.00 for the year's work regardless of whether there are any people from his county who have secured U. S. licenses.
August 15, 1916. Hon. S. C. O'Kelley, Clerk,
Da-nielsville, Georgia. DEAR Sm: Replying to your favor of the 14th instant asking my opinion as to whether or not the Sheriff is required to publish report of inspection of the books of the United States Internal Revenue Collector containing the names of the persons, firms, or corporations, thereon from his county who may have secured liquor licenses, will say that unless there are names on the said books from his county he is not required to publish report, stating that there are no names on the said books. You wish to know further if the Sheriffis to be paid $25.00 for the year if no names from his county are on said books. Replying to this question will say that the law directs that each Sheriff must inspect the books on the first of each month and directs that he be paid $25.00 for the year and therefore it is my opinion that the Sheriffs have earn~d their fee of $25.00 when they
inspect the books each month for the year, regardless oi how
many or how few names may be thereon.
Trusting that the above is the information you desire, and with best wishes, I remain,
Very truly yours, CLIFFORD WALKER, Attorney-General.
.
Wholesale and retail druggists are allowed to sell "pure alcohol" under certain conditions. Unlawful for them to sell whiskey, etc. Sheriffs do not have to publish names of such dr,uggists who procure license from the United States to sell "pure alcohol."
August 15, 1916. Baohrnan & Sirnrnons, Attorneys,
Hurt Building, Atlanta, Ga. GENTLEMEN: Replying to your favor of recent date, asking my 'opinion as to whether or not retail and wholesale druggists
424

are exempted from the operation of the last prohibition law relative to selling whiskey, etc., will say that they are allowed to sell ''pure alcohol'' the same as they could before the last prohibition law was passed. See Acts of Extraordinary Session, 1915, page 83, Section 10, bottom of page. This refers to the Acts of the Legislature of 1907, page 82. Also, the repealing clause of the last prohibition law, on page 89 of the Acts, Extraordinary Session, Section 24.
As to whether or not it is the duty of the Sheriff of. any county to procure and have published the names of wholesale and retail druggists who may have obtained a license to sell pure alcohol as provided by law, I will say that, in my opinion, it is not the intention of the Legislature, in the Act of 1916, to require such names to be obtained and published. Section 10 of the Act, page 83, provides that "nothing in this Act shall apply to regularly licensed retail or wholesale druggists, who, under the prohibition Act of August 6, 1907, are allowed to sell alcohol, etc.''
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
1. The Superintendent of Schools of a county in which a local tax is levied by districts is not required to notify all the corporations owning property in such district, which are required to make their tax returns to the Comptroller-General of the levy of the tax, annually, giving them informations as to the bound-aries of the district, etc.
2. It is the duty of the County School Superintendent to notify the tax rate assessing authority of a county of the rate fixed for a local school tax in any such district which has adopt('d the same before the time such tax rate is assessed.
3. Such a tax could not be collected out of a part of the people of such a district unless if could be collected from all persons and corporations.
August 16, 1916. Han. S. J. Hale, County School Superintendent,
Trenton, Ga. DEAR SIR: I have your letter of recent date requesting my
425

OpllliOn as to the interpretation of certain provisions of the School Laws of this State.
You wish to know whether or not it is necessary for the Superintimdent of Schools of a county in which a local tax is levied by districts. to notify, each and every year, all the corporations which are required to make their tax returns to the ComptrollerGeneral of the levy of the tax, and to give them information as to the boundaries of the district, etc., to enable them to make returns of their property located in such districts. In reply I will say that the only provision on this subject is found in Section 1541 of the Code. This Section provides in part as follows: ''It is hereby made the duty of the County Superintendent of Schools of each county to ~urnish on or before January 1; 1907, to each such corporation, information as to the boundaries of each school district in which such corporation may have property, such as will enable such corporation to determine the amount of its property in such district, and he shall also furnish similar information whenever the boundaries of any school district may be changed.'' In my opinion this Section means that the information referred to therein is to be furnished corporations referred to on or before January 1, 1907, and that when such information has been furnished as required by law, it is not necessary that such information be furnished at any other time, unless the lines of the district have been changed. In the latter event it is his duty to give such information as soon as the change has been made, but it is not necessary that such information be given more than once. I do not think that elections for local school tax have anything to do with the matter of giving this information: The information is to be given at the time stated for all districts regardless of whether any or all of these districts at the time were levying a local tax. After an election has been called and held and has resulted in favor of a local tax, it is not necessary that such information be given again, pro- vided it was given in the first instance as required by law, and provided that no change has been made in the boundaries of the district. The corporations referred to under the law are entitled to information one time as to the establishment of the district and its boundaries, but are not entitled to any further notice on this subject after the first notice unless the lines have been changed.
426

You wish to know further where the local taxes for the support of schools can be collected for the present year in certain districts where the election favoring such a tax was recently held. In reply to this question I will say that Section 1537 of the Code provides in part as follows : ''The County School Commissioner of each county, at or before the time for fixing the rate of said county by the Ordinary thereof, or the County Board of Commissioners, as the case may be, shall certify to the said Ordinary, or said Board of Commissioners, as the case may be, and to the Comptroller-General of the State the rate of taxation fixed for each school district in the county, and said taxing authority of said county shall levy such special tax at the same time and in the same manner as is now prescribed for levying taxes for county purposes.'' Sections 1036 to 1041 of the Code provide that the Comptroller-General shall assess the . tax for school purposes against the property of the corporations located in such district and notify the president and treasurer of such companies of the tax assessed against them. They. ~re then required to pay said tax to the Tax-Collector of the county. It will thus be seen that if the County School Commissioners notify the taxing authorities of the county of the rate of tax fixed in the districts at or before the time for fixing the rate of tax for the county, so that the special tax may be included in the general tax levy for the county, the tax for the local districts may be collected for that year.
Your next question is whether or not such a local tax could be collected in such a district in the event it was found that the corporations which make their returns to the Comptroller-General could not be forced to pay the same. In reply I wilL say that a tax could not be collected out of a part of the people in the district if for any reason other persons or corporations could not be forced to pay the same.
Yours very truly,
CLIFFORD wALKER,
Attorney-General.
427

Where the county authorities have committed a person to the State Insane Asylum in accordance with the provisions of the law the Superintendent cannot refuse admission of such person on the ground that he is not a resident of the State.

August 18, 1916.

lion. J. R. Horton, Ordinary,

. Fitzgerald, Ga.

DEAR SIR: I have your favor of recent date requesting my

opinion on the following matter: It seems that one Rollins

was tried for lunacy in your Court and adjudged insane and

duly committed to the State Sanitarium. Dr. Jones, the Super-

intendent of the Sanitarium, now refuses to admit Rollins into

this institution on the ground that Rollins, as Dr. Jones con-

tends, is not a resident of this State: You wish to know whether

or not Dr. Jones has the authority to refuse to accept Rollins.

into this institution on the ground stated.

In reply I will say that Sections 1574 to 1577 of the Code of

1910 provide "lunatics, epileptics, idiots, and demented ine-

brates shall be admitted to and discharged from the Sanitarium

under such rules and regulations as the Trustees shall pre-

scribe." They further provide that such rules and regulations

when thus established shall be executed and carried into effect

by the Superintendent and other officers of said asylum. Also

it is provided that it shall be the duty of said Trustees to cause

to be furnished to the different Ordinaries of the State copies

of said rules and regulatioU:s. However, I do 'not understand

that it is the purpose of these Sections to confer upon the

Trustees power to prescribe rules for the commitment of patients

to the Sanitarium not harmonious with Section 3092 of the Code

of thi~ State, providing for commitment to the asylum of per-

sons non compus mentis.

.

Sections 1574 to 1577, inclusive, of the Code havetio applica-

tion as to the method of commitment. They apply only after

commitment in conformity with Section 3092 of the Code. The

Board may prescribe rules and regulations for the patient after

legally committed to the asylum, but not relative to the pro-

cedure anticipating commitment to the asylum.

Section 1600 of the Code provides "every one sent to the

Sanitarium from any county in Georgia must be shown, in the

exemplification of proceeding, to be at the time strictly a citizen

. 00 4.00

_of this State, in terms of the law relating to citizens. For the reason above stated it is my opinion that where the provisions
of said Section 1600 of the Code have been complied with and a patient has been duly and legally adjudged a subject to be committed to the State Sanitarium, and has been cop1mitted as provided by Section 3092 of the Code, the Superintendent could not refuse to admit him into the Institution on the ground that he is not a resident of the State.
Very truly yours, CLIFFORD \VALKER, Attorney-General.

Ordinary's cost in cases of opening up private ways discussed. ,.

,.August 23, 1916.

Hon. W. D. Whelchel, Ordinary,

Gainesville, Ga.

1

DEAR SIR: I have your letter of August 22nd asking for information in reference to the Ordinary's cost in cases of opening up private ways. In reply I will say that Section 827 of
the Code provides ''the fees of the Ordinary in such case shall be $3.00, to be paid by the losing party." Section 4827 provides generally for fees of the Ordinary. In the case of Fortson vs. :Mattox, 67 Ga., page 282, it was held that in a case of this kind the Ordinary sits, not as the Court of Ordinary, but as the Ordinary. See also Sections 4796 and 4797 of the . Code.. The Ordinary in such case "sits fqr. <loipty P.ur.poses."
It will be noted that Sections 825, 826, 827, are codified from an Act of the Legislature passed in 1872. See Acts of 1872, pages 60 and 61. This Act provides for the .remo;val of obstructions in private ways and is ~eparate and .distinct from other laws relating to th,e powers and jurisdictio~ o. :the. Ordinary. It provides for all the proc~edings,be:f,or,e the Ordinary to remove such obstructions. It requires . that ,a petition ,be filed by the complaining party, and a rule nisi td he'.issued and served, and for a hearing, and for an -o~q.,er t'o remove such obstruction, and finally fol' a warrant to -the~sh~riff directing him to remove the obstruction: As to the fees, it provides that the fees of the Ordinary in such case shall be $3~00.""1 am of

129

the opm1on that the fees here referred to are th., fees which the Ordinary is entitled to receive for performing the duties set out and required in the Act only, that is to say that he shall have fees of $3.00 for filing the petition, issuing the rule, hearing the case, rendering judgment, and if necessary for issuing ,a warrant. I do not think he is entitled to receive any further fees for these specified purposes.
However, Sections 4281 et seq of the Code setting forth the proceedings before the , O~dinary sitting for County Purposes provide that a docket must be kept of such proceedings, and that the same shall be recorded upon the minutes of the Ordinary. I am of the opinion, therefore that in addition to the $3.00 mentioned in Section 827 of the Code the Ordinary is entitled to the Fees specified in Section 4827 of the Code for filing and docketing the petition, for issuing subpoenas, and for recording on his minutes a~l the proceedings in the case. I think also he would have the authority to render judgment against the losing party for the fees of the witnesses. The Sheriff would be entitled to his fees for service, etc.
Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
If, in attempting to create a new militia district,_an order was passed approving a survey containing less than 100 male persons over 21 years of age, or if such survey left an older district without this number of such persons within its limits, such order would be null and void.
~ugust 23, 1916. Hon. A. F'. Byrd, Ordinar_y, " Baxley, Ga. ': DEAR SIR: Your letter of August 21st regarding the Militia District matter received. In reply I will say that Section 375 of the Code provides as follows :
"Each district hereafter organized or changed must contain within its limits at least 100 male persons over 21 years of age, resident at the time of the organization, liable to militia duty, and in its formation must not leave any older district with a Jess number."
430

If the district referred to was formed in violation of this Section the order approving the survey would be null and void, and the Court would have the authority to set aside and vacate the same.
As to your other question relating to what persons are to be counted in determining the number necessary for th{ formation of a new district, I will say that if you will turn to Sections 1370 and 1371 of the Penal Code of 1910 you will find the law setting forth what persons are liable to military duty. These Sections are too long to quote.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
If cider contains more than one-half of one per cent. of alcohol and is sold and used as a beverage, It is an Intoxicant and comes within the meaning of the Prohibition Law of the Extraordinary Session, 1915.
August 24, 1916. Bennet, Twitty &; Reese, .Attys.,
Brunswick, Georgia. GENTLEMEN: I have your letter of recent date in ,regard to the amount of alcohol prohibited. I am unable to state whether or not under the Prohibition Act of 1915 it was intended that cider should be outlawed or classed as one of the intoxicants. In reply I will say that in my opinion if the cider referred to is a drink or beverage and contains one-half of one per cent. of alcohol, or if it is sold or manufactured or otherwise disposed of, for beverage purposes, and contains one-half of one per cent. of alcohol or more, or is made in any part of malt, it would come within the prohibition of said ~aws, and could not be delivered except as provided in the Act. I do not think you would be required to presume that every shipment of cider contains one-half of one per cent. of alcohol, or more _unless it is generally understood and known that such cider contains the amout of alcohol prohibited.. I am unable to state whether or not it is generally known that cider such as that in question contains alcohol in .an amount greater than that amount allowed by law. However, .if the cider does .in fact contain
431

more alcohol than is allowed by law the delivery of the same would be unlawful.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
The terms of office of all county officers begin on January 1st, 1917.
August 25, 1916. Mr. L. 1V. Hutto,
Rockingham, Ga. DEAR SIR: Your letter of August 24th directed to the Governor of this State in reference to the office of Tax Receiver of Bacon County has been received. It appears that on January 5th, 1915, you were elected Tax Receiver of said county. Bacon County is a new county and came into existence by a ratification of the people at the general election in 1914. Therefore under Section 112 of the Code your term of office will expire by law on January 1, 1917. The Constitutional Amendment ratified November 3rd, 1914, providing that the term of office of all county officers shall be four years became effective January 1st, 1917. See Code Section 6599 as amended by the Act of the Legislature of 1914 (Acts 1914, page 43.) It is therefore legal for an election to be held this year at the time for the holding of the general election for the purpose of electing a Treasurer of Bacon County as well as for all county officers.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
Under the Prohibition Acts of 1915 no malt liquor or liquor containing more 'than one-half of one per cent. of alcohol can be sold as a beverage.
August. 25, 1916. Mr. lV. M. Cole,
Boston, Ga., Box 122. DEAR SIR : Replying to your letter of the 23rd, addressed to the Governor, having been turned over to me for answer by the
432

Governor, I will say that from the guarantee "and other infor-

mation sent, I am unable to say whether or not the "Number .
i" can be sold without violating our prohibition laws. The law

prohibits any beverage being sold that contains more than one-

half of one per cent. alcohol. The ''Guarantee'' dpes not say

how much alcohol "Number 7" contains. It could be "non-

intoxicating" and still have more alcohol than one-half of one

per cent. The law prohibits any beverage being sold that is

made wholly or in part from malt, regardless of whether or not

it has any alcohol in it. Your "Guarantee" does not say that

"Number 7" comes within that Section of the last prohibition

law, but only says "and that it (Number 7) is not a malt liquor,

as defined by the Internal Revenue Department of the U. S."
a Just what is malt liquor as defined by the Internal Revenue

Department of the United States, I am unable to say.

To be on the safe side, I would suggest that you have a

chemical analysis made of Number 7 and if it is made from

malt, wholly or in part, or, if it conta~ns more than one-half of

one per cent. of alcohol, then it is a violation of the last prohibi-

tion law.



Very truly yours,

CLIFFORD WALKER,

Attorney-General.

County Registrars must furnish certified list of the registered voters to. the managers of the election at each voting precinct.
August 28, 1916. Ron. W. H. Weaver, County Registrar,
Marion, Georgia. DEAR Sm: Replying to your favor of the 21st instant asking my opinion as to whether or not it is the official duty of the County Registrars to furnish certified list of the registered voters to the Managers of the coming primary election at the various precincts, or whether or not it is the duty of the .Managers to get said lists from the official list the Registrars have filed in the Clerk's office, will say, that Section 67 of the Code of Georgia of 1910 provides as follows:
"LIST TO BE FURNISHED ELECTION-MANAGERS. The County Registrars shall, at or before the hour appointed for opening th.~. polls, place in possession of the managers of the election at each voting precinct in the county one or more printed or
433

clearly written copies of the lists of regiatered voters for such militia district or city ward in which the voting precinct is situated, said lists to contain all the information hereinbefore provided for; and the County Registrars shall, in like manner, place in possession of the election managers of the voting precincts at the courthouse, at the county site, proper lists for each militia district, the voting precinct of which is situated outside of an incorporated town. Said lists of registered voters - shall be duly authenticated by the signature of two of said County Registrars."
Trusting that the above is the information desired, and if I can serve you further, advise me.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.

County must pay for publication of the names of persons, firms or corporations having secured liquor licenses, as provided by the Legislature, Extraordinary Session 1915.

August 28, 1916.
Hon. E. H. Griffin, Editor, Bainbridge, Ga.
DEAR Srn: Replying to your favor of the 20th regarding payment for publishing the names of persons, firms or corporations having liquor licenses, as provided for by the last" prohibition law, will say that in Section 16, Part 1, Title 2, of the last prohibition law (Acts E~traordinary Session, 1915, page 85, Section 16) provides as follows, in part:

" . . . shall publish for two successive weeks in some news-

paper in his county .

for such services the Sheriffs

shall each receive the sum of $25.00 per annum, and the expense

and cost of publmhing the same, to be paid out of the general

funds of his county."

Trusting that the above is the information you desire, and if

I can serve you further, please advise me.



Very truly yours,

CLIFFORD wALKER,
Attorney-General.

434

Election for local school taxation. Election for Trustees after district is laid out. Collection of school tax.

September 2, 1916.

Hon. S. Booth,

Morven, Georgia.

'

DEAR SIR: I have your letter of recent date regarding the

school tax in your district. In reply I will say that an elec-

tion for local taxation can be held in the district not earlier

than twenty days nor longer than sixty days after the petition

for election is received. The election for Trustees may be held

after the district is laid off at a time and a place and in a

manner prescribed by the Board of Education of the county.

The loca1 tax election could be held before the election for

Trustees, but in no event can the'Board of Education order

the election for Trustees later than ninety days after the dis-

trict is lai,d out. In this connection see Sections 1533 and 1535

of the Code. As to whether or not the tax could be collected

for this year I will say that if the election is held and carries

for the local tax, and the County School Commissioner is able

to certify to -the Ordinary or Board of Commissioners of the

county the rate of taxation fixed :for the district at or before

.the Ordinary or Commissioners fixes the rate of taxation for

the county, the district tax may be collected. If the County

School Superintendent is unable to do this, then the tax could

not be collected.

Very truly yours,

CLIFFORD WALKER,

Attorney-General.

. Act creating the Board of County Commissioners for the County of Hart. Constitutionality discussed.
September 2, 1916. Hon. W. B. McMullan, Ordinary, Hart County,
Hartwell, Ga. DEAR SIR: I have your letter of recent date requesting me to give you an opinion as to whether or not that part of the third Section of the Act creating a Board of County Commissioners of Roads and Revenues for the County of Hart and
435

limiting the commutation tax to $2.50 is legal and valid. Said Section prpvides that the Board of Roads and Revenues shall have the right to subject all persons residents of said County, who are subject to road duty in said County under the laws of the State of Georgia, to a payment of a commutation tax not to exceed $2.50.
In reply I will say that this precise question has never been before the Supreme Court of this State, but from expressions used in several cases I am of the opinion that under the rulings of the Supreme Court the Section referred to is valid and constitutional. See the cases of Pulaski vs. Thompson and Company, 83 Ga. 270 (4), Churchill vs. Walker, 68 Ga. 681.
Very truly yours,
CLIFFORD WALKER,
Attorney-GeneraL
Town of East Lake cannot legally collect taxes on the property of the Atlanta Athletic Club, said property not being within the cor. porate limits of such town, though an Act of the Legislature gives such town the authority to levy and collect taxes on the Athletic Club's property.
September 2, 1916. Mr. R. E. Carroll, Superintendent of Schools,
Decatur, Georgia. DEAR SIR: I have your letter of recent date requesting my opinion as to the authority of the town of East Lake to collect school taxes on the property of the Atlanta Athletic Club, adjoining said town. Such property. is not included in the corporate limits of the town, but by the Act of 1915 the town authorities are given the power to levy a tax upon this property. In reply I will say that in my opinion the town of East Lake is not authorized and has no power to levy any kind of a tax upon property not situated within the corporate limits of the town.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
436

Discussion as to what remedy a person has when he has returned his property for taxation in a city or town and the city council has raised the valuation thereof as returned by him.
Atlanta, Ga., September 4, 1916. Mr. .A. R. Richardson,
Brooklet, Ga. DEAR SIR: I have yours of recent date asking what remedy a person has when he has returned his property for taxation in a city or town and the city council has raised the valuation thereof as returned by him. In reply I will say that as you do not state what city or town you refer to, it .is impossible to answer your question. Different towns and cities under their charters have different methods of appraising property for taxation where there is a dispute as to the real value of the property. You will have to refer to the charter of the town in which your property is located. If the said ~harter has no provision on the subject, then the general law on the subject would apply. This law is found in Sections 862 and 863 of the Code of this State of 1910. The former of the Sections above referred to provides in part as follows:
"All persons dissatisfied with the value placed on 'their property shall appear before the said Assessors and produce testimony as to the value of property, and the decision of said Assessors, after hearing the evidence, shall be final."
If the assessment is made fraudulently or not in the manner prescribed by law, the courts will issue an injunction against the collection of the tax.
Under the law, I am not permitted to furnish an official
.am opinion except on the request of the Governor, but I . glad
to give you the above information: Very truly yours,
CLIFFORI) WALKER,
Attorney-General.
. ::.

The Act of 1914, rev1s1ng the health laws of the State, is constitutional and valid.
September 8, 1916. Hon. J. J. Golden,
Tifton, Ga. DEAR SIR: Replying to your favor of 6th instant, I beg to say that under the police powers of a State its authority to enact legislation and provide regulations for the health of its people and the promotion and protection of the sanitation of the State is unlimited. The powers given to the State or a municipality for such purposes is stronger than on any other line and I have no hesitancy in reaching the conclusion that the Act of 1914 to revise the health laws of the State (Act Number 471-Acts of 1914, page 124) is bqth constitutional and valid.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
1. County authorities are authorized to levy a 'tax for the purpose of paying accumulated indebtedness as high as the difference be tween the tax for current expenses, which includes the items set out in Section 513 with the exception of items two and seven, and one hundred per cent. upon the State tax for the year in which it is levied.
2. Where county warrants are _issued withou~ a stipulated date of maturity they are due and payable five days from the date on which they were issued and delivered.
3. If there were no funds with which to pay such warrants, mandamus absolute could not be made against the Treasurer.
4. Question as to whether or not the Commissioners are allowed to create indebtedness In an amount beyond what they can pay by a tax levy for the year in which the indebtedness Is created. Answered by case of Butts County vs: Jackson Banking Company, 129 Ga. 804.
September 8, 1916. Hon. G. H. Gilreath, Treasurer,
Cartersville, Ga. DEAR SIR: I have your favor of recent date requesting my opinion on the following matters, relating to Bartow Comity. It appears that Bartow County, through its Board of Commissioners during the year 1914 issued county warrants for the
438

sum o! $63,945.08. During the year 1915 county warrants were
issued amounting to $37,319.74. The total indebtedness .for the years 1914 and 1915 amounts to $101,264.82. It further appears that up to September 1, 1916, these county warrants will be increased to $110,000.00. This last, of course, includes the current expenses for the year 1916.
You wish to know whether or not the County Commissioners can levy a rate of taxation sufficient to pay all debts made for 1916 and 1914 and 1915, and also, whether or not they are limited in the rate that may be levied.
In reply, I will say that Section 513 of the Code sets out the matter for which a county tax may be levied. These purposes are nine in all. Section 508 of the Code fixes the limit upon the rate of county taxation, to wit, that it is not to exceed fifty per cent. upon the amount of the State tax for the year it is levied. However, in estimating the fifty per cent., items two and seven of Section 513, as well as the locai school tax and the road tax, are not to be included. See Waller vs. Perkins, 52 Ga. Heports, page 234. Also, see Sullivan, Tax-Collector, vs. Yow et al., 125 Ga. Reports, page 326. Also Sheffield vs. Chancy, 138 Ga. Reports, 677. However, the taxes to be levied under Section 513, item 1, are not sufficient to pay the accumulating indebtedness for 1914 and 1915, and also the debts to become due during the year 1916. Section 507 of the Code was intended to meet the condition appearing to exist in your county. This Section provides as follows :
' "'Vhen debts have accumulated against the county, so that one hundred per cent. on the State tax, or the amount specially allowed by. local laws, can not pay the current expenses of the county and the debt in one year, they shall be paid off as rapidly as possible, at least twenty-five per cent every year."
In the case of Waller vs. Perkins, referred to above, the Supreme Court says: .
"When .debts against the county 'other than debts for public buildings and their repairs,' accumulate so that the fifty per cent. allowed by Sections 509 and 511 will not be sufficient to pay them, the Grand Jury may recommend a tax for county purposes as high as one hundred per cent. upon the State tax, and if this amount, or the amount allowed by local laws, will not pay the necessary current expenses and the accumulated debt, the creditors have a right to require that at least twenty-five pe" cent. of the debt shall be paid therefrom."
439

In the case of Sheffield vs. Chancy, above referred to, the Supreme Court says:
"We are of the opinion, therefore, that under the present status of the law, if there is a legal indebtedness of a county incurred in a manner authorized by law, it is contemplated that it shall be paid in the manner previously fixed, and that the tax levy of the difference between the current expenses and one hundred per cent. upon the State tax can be made without recommmdation of the Grand Jury. This is reinforced by the requirement that at least twenty-five per cent. shall be paid in each year, and the fact that the creditors may bring mandamus to compel the levy of the tax and the taxpayer may contest the proceedings."
Replying specifically to your question, I will say that the county authorities are authorized to levy a tax for the purpose of paying this accumulated indebtedness as high as the difference between the tax for current expenses, which includes the items set out in' Section 513 with the exception of items two and seven, and one hundred per cent. upon the State tax for the year in which it is levied.
Your next question is when are county warrants due which are issued without a stipulated date of maturity. In reply, I will say that in my opinion, such warrants are due and payable five days from the date on which they were issued and delivered. See Section 580 of the Code.
Your next question is whether or not such warrants are subject to mandamus. In reply, I will say that a mandamus could not be made absolute against the Treasurer unless he had in his hands funds sufficient to pay them and which belonged to the separate funds upon which the warrants were drawn. If he had such funds in his hands. he would be subject to mandamus.
Your next question is whether or not the Commissioners are allowed to create indebtedness in an amount beyond what they can pay by a tax levy for the year iu which the indebtedness is created. In reply, I will say that this question is answered by the Supreme Court in the case of Butts County vs. Jackson Banking Company 129 Ga. 804. In this case the Supreme Court says:
"It was he purpose of the Constitution to provide a system of finance for suborclinate public corporations, under which then>
440

should be each year contracts made for t:lC exrenses of the year, and these were to be paid out of moneys arising from taxes levied during the year, that is, that each year's expense s:wuld be paid by taxes levied during the year, and no item of expense was to be paid. except out of the taxes levied during the year in which the contract for such expense was made. Any liability which was not to be discharged by money already in the Treasury, or by taxes to be levied during the year in which the contract under which the liability arose was made, is a debt within the meaning of the Constitution, and can not be incurred without the preliininary sanction of a popular vote, unless it be for a temporary loan to supply casual deficiencies of revenue."
However, the case above referred to held that the county might be liable for money borrowed and for which it received the benefit.
I hope the above will give you the information you desire. Very truly yours,
CLIFFORD WALKER,
Attorney-GeneraL

1. Property located beyond the jurisdiction of the State is not sub-

ject to the Inheritance Tax Law.

.

2. -Each heir, who is a father, mother, husband, wife, child, brother,

sister, wife or widow of a son, or any child or children adopted

as such, of the descendant, or by any lineal descendant of such

decedent, Is entitled to an exemption of $5,000.

Atlanta, Ga., September 9, 1916. Hon. Henry McAlpin, Ordinary,
Savannah, Ga. DEAR Sm :. Referring again to the matter of the inheritance tax on the Gans estate I wil_l say that if it is shown that only $11,250.00 of this estate is located in the State of Georgia, then only that amount is subject to the inheritance tax laws of this State. The State of Georgia can not tax property or the transfers thereof when the same is not within the jurisdiction of this State. If the property is not located in the State it is not within the jurisdiction of the State, and is not subject to the tax. It appears that there are four heirs to this estate. You wish to _know whether or not each of these heirs is entitled to the exemption of five thousand dollars. In reply I will say that in the case of Martin vs. Pollock, 144 Ga., page 605, the Su-

441

preme Court of this State held that each of the heirs, if he is one of those enumerated in Section 1 and Paragraph 1 of the Act, is entitled to an exemption of five thousand dollars. Therefore, if any one of the heirs receives property in excess of five thousand dollars from the portion of the estate located in Georgia, he would be subject to the tax on such excess. If none of the heirs receives property in excess of five thousand dollars, then no tax can be collected. Each heir is entitled to an exemption.
Very truly yours, CLIFFORD WALKER, Attorney-General.
One sale does not constitute carrying on a business.
September 9, 1916. McKenney & Powell Bros.,
Woodbury, Ga. GENTLEMEN : Replying to your favor of the 8th instant will say that a t?wn has no right to collect a tax if you maintain no business and carry on no business in the town. One sale does not constitute carrying on a business. See the case of Gunn vs. The Mayor and Council of Macon, 84 Ga., page 365, and also the case of Williams vs. City of Tifton, 3 Ga. App., page 445. Trusting that the above is the information you desire, I am,
Very truly yours, CLIFFORD WALKER, Attorney-General.
A person who has served a sentence in the chain-gang is not exempt from tiie payment_ of taxes.
September 9, 1916. Hon. Tom Jones,
Austell, Ga. DEAR Sm: Replying to your favor of recent date the law is clear that a man who has served a sentence in the chaingang is not exempt from the payment of any kind of tax. In fact the law does not generally exempt folks from paying taxes,
.442

and I suggest that you make anybody show you the law before you hear anything about exemptions.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.

It is necessary to have two appraisements of an estate that is subject to the lnherita"ce Tax Law; one under the Jaws relating to the administration of estates, and one under the Inheritance Tax Act.

Hon S.D. Fanning, Ordinary, Washington, Ga.

September 9, 1916.

DEAR Sm : I have your favor of the 7th inst. in which you ask whether or not it is necessary to have two appraisements of

an estate that is subject to the inheritance tax, one under laws

relating to the administration of estates, and the other under the

provisions of the Inheritance Tax Act.

In reply, I will say that in my opinion the law contemplates

that there shall be two appraisements. One is required under

the general law. relating to the administration of estates. The other is had under the Inheritance Law.

Very truly yours,

CLIFFORD WALKER,
Attorney-General.

The owner .of an automobile or a friend or a member of the owner's family may drive the car withou:t. a chauffeur's license.
September 9, 1916. Hon. Fred W. Gilbe1t,
Washington, Ga. DEAR SIR: Replying t; your favor of 4th instant, we interpret the law providing a tax on chauffeurs to mean that the owner of a car or a friend or a member of the owner's family may drive a car without the license. If the owner has in his employ a driver on a salary and any part of his employment is the driv-
443

ing the car we think he should obtain the chauffeur's license. We know of no other reasonable line of demarcation to fix.
With my kind personal regards. Very truly yours,
CLIFFORD WALKER,
Attorney-General.

No fund is provided from which can be paid the cost of the stenographic work of the Special Committee appointed by the Legisla-

___ ture to consider the tax question.
~F'/T -~?;]: _ ~:;;-:If,~';-' ~~-:-:::r

rT:J~--JJ-:'l~~VifJ

--

'September 14, 1916.

Hon. Jno. D.. Walker, ~parta, Ga.
DEAR Sm: Your letter of recent date addressed to the Governor and relating to the matter of the payment of the cost

of the stenographic work of the Special Committee appointed

by the Legislature to consider the tax question has been turned

over to me for reply. You wish to know whether or not there

is any fund out of which this cost could be paid. In reply I

will say that I regret that there is no fund from which this

money can be legally paid. Such matters are usually provided

for by a Special Resolution authorizing the payment of the ~arne. I do not think this money could be paid out of the con-

tingent fund for the following reasons, as well stated by one of

the former Attorney-Generals:

"The purpose of the contingent fund, which is appropriated each year to be expended under the direction of the Governor, is to pay those expenses and obligations of the State which are liable but not certain to occur, and which can not well be foreseen by the General Assembly. This debt was made by a branch of the General Assembly and, of course, was well known while that body was in session, and it could not very well come within the definition of a contingent debt or liability of the State. I do not think that the expenses of the Legislature are chargeable anyway, against the contingent fund."

I regret that I am not able to find any way by which the Xpenses referred to can be legally paid.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
444

Discussion as to whether or not under the recent Act of the Legislature the Ordinaries are required to make monthly reports and payments to the State Treasurer <>f the fund received by them from the tax on whiskey shipments.
September _18, 1916. H on. J. A. Wills, Ordinary,
Jefferson, Ga. DEAR SIR: I haye yo~r letter of recent date requesting my opinion as to whether or not under the recent Act of the Legislature the Ordinaries are required to make monthly reports and payments to the State Treasurer of the fund received by them from the tax on whiskey shipments. In reply I will say that the Act provides that the first $600 received by the Ordinary for each fiscal year from the date of the passage of the Act from said tax paid to them by the transportation companies shall go to the Ordinary. After $600.00 has been received by him during each year, the Ordinary is to receive ten per cent. of the amount in excess of $600.00. It will, therefore, be seen that the Ordinary is not required to make any payments to the State Treasurer until he has received $600.00, and has on hand some ainount in excess of $600.00, ninety per cent. of which he is required to pay to the State Treasurer. After he has received his
$600.00, he is then required ta pay whatever. amount he has
on hand after that time, less ten per cent. to the State Treasurer at the end of every thirty days. The Act provides in this respect as follows: ''And at the end of each thirty days of each fiscal year, from the date of the approval of this Act he shall make payment to the State Treasurer of such amount as he may be due to pay into the Trc:osmy under the provisions of this Act." It thus nppears that the Ordinary is not required to make any report to the Treasurer or make any payments to him until such Ordinary has received the amount of $600.00. After that time he is required to make monthly payments to the State Treasurer, at the end of each month, of whatever amounts he may at the end of the month be due to pay into the Treasury under the provisions of this Act.
I hope the above will give you the information you desire. Very truly yours,
CLIFFORD WALKER,
Attorney-General. 445

The Act appi'Oved August 19th, 1916 (Regulating the practice of Ophthalmology), requires all those now practicing any other non-drug giving school of medical practice within the meaning of the Act to appear before the Board and stand an examination on certain subjects. Must stand such examination within sixty days.
September 18, 1916. Dr. E. L. McCraney,
Blairsville, Ga. DEAR SIR: Your letter of recent date asking for some information in regard to the recent law relating to practitioners of ophthalmology has been received. You state that you hold a diploma from the Northern Illinois College of Ophthalmology, and you desire to know whether or uot under the Act of the last Legislature you will be required to go before the State Board and stand. an examination. In reply I will say that said Act provides as follows :
"Be it further enacted, That within sixty days after the pas sage of this Act, all of those now practicing within this State any other non-drug giving school of medical practice within the meaning of this Act shall appear before. said Board provided in this Act on a date fixed by said Board and stand an examination on those subjects required in Section 7 of the original Act as amended by this Act."
This Act was approved August 19th, 1916. I hope the above will give you the information you desire.
Very truly yours, CLIFFORD WALKER, Attorney-General.
In the absence of a contract c.itizens .of a municipality would have no recourse against a person who had been furnishing light and water service and who refused to continue such service.
September 18, 1916. Hon. W. T. Dickerson, Attorney-at-Law,
.Homerville, Ga. DEAR SIR: I have your letter of recent date regarding the matter of the franchise for lights and water granted to individuals by a municipality. In reply I will say that I have given
446

this matter considerable thought and attention and have arrived at the following conclusions:
A corporation or person furnishing electric light or power service to the public is under the jurisdiction of the Railroad Commission. See Sections 2662 and 2663. A corporation or person furnishing water to a city is not under the jurisdiction of the Railroad Commission. However, a person furnishing electric light service to the public is under the jurisdiction of the Commission to the extent that the Commission may regulate rates and otherwise regulate in the interests of the public the manner of conducting the business. Where such a corporation or person absolutely refuses to continue te furnish such service, I do not think the Railroad Commission has jurisdiction to force such person or company to continue to do so. This is true for the reason that the law seems to refer to the regulation of the operation of such business, and also for the reason that there is no way by which the Commission could enforce an order requiring the person or corporation to continue in business.
If the municipality has a contract with the individuals by which such individuals have agreed to furnish light and water, it might institute a suit for aamages for a breach of contract. If citizens of the town have contracts- with such persons to furnish light and water, they might institute suits for damages for breach of the contracts. However, in the absence of a contract either with the city or with the citizens of the town, I do not see how either the citizens of the town or the city can have any recourse against the persons who refuse to continue to furnish the light and water. Of course, the city can revoke the franchise. It may b!l possible that either the city or the citizens, if they have expended money and sustained loss on faith of any understanding or agreement ~ith the persons agreeing to furnish light and power, might recover damages to the extent of such loss. This would depend upon the facts of each individual case.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
447

New Optical law requires certificate of examination to be filed by applicant with Clerk of the Superior Court in each county he intends to practice in. Clerk's fee is $1.00.

September 21, 1916.

Mr. Hugh B. Jones,

Calhoun, Ga.

DE.AR SIR: Replying to your favor of yesterday, I have just

been down to the office of the Secretary of State and thoroughly
examined the new optical law as requested by you. 1 find that

it requires you to have the certificate. issued by the Examiners

after an examination recorded in the office of the Clerk of the

Superior Court of each county in which you have an office or

do any practice. The Bill provides that the Clerk of the Court

may charge a fee for this registration of one dollar for each

county. This is only regulation on the subject inquired about

by_ you. Trusting that this gives you the information you

desire, I am.

Very truly yours,
CLIFFORD w .ALKER,

Attorney-General.

Commissioners can require Overseer to do his duty before the expiration of twelve months. Section 690.

Mr. C. N. Walker,

September 21, 1916.

Ellijay, Ga.

DE.AR SIR: Replying to your favor of recent date I beg to

advise after studying Section 690 of the Code that I am en-

tirely at sea as to just what the Section really means. In other

words, it is capable of two constructions, either one of which

could be justified by strong arguments. I regret that I have

been unable to find any decision of the court on the subject.

It is my judgment that the court when they do interpret

the .Section will hold that the Commissioners can require the

Overseer to do his duty before the expiration of twelve months.

However, he must be given due notice of his neglect and time

in which to do the work and after this he would be entitled

to a hearing if he desired before he could be fined.

Trusting this is the information you desire, I am,

Very truly yours,
CLIFFORD w .ALKER,

Attorney-General.

448

of A Judge of a City Court can be elected Solicitor-Gen~ral the Circuit
while holding such judicial position.
September 21, 1916. Hon. Alvin V. Sellers,
Baxley, Ga. DEAR SIR: I have received your favor of 16th instant in which you say you were elected Soli~itor-General in the recent primary and being Judge of the City Court are in some doubt as to your right to retain the Judgeship until January 1st, when your term expires and also when the term of your predecessor, the present Solicitor-General, expires. In other words you submit the question whether you can be legally elected in the November election while holding the judgeship. In response to your request I beg to say that the exact question seems not to have been before our Court. However, I am clearly of the opinion yqu can retain the judgeship and legally be elected Solicitor-General. In hundreds of cases county officers holding one office are elected to fill other offices while still in office. The present TaxCollector of my own county was nominated for Ordinary and will retain his place as Tax-Collector until January 1st, when he will qualify as Ordinary. A number of the candidates for the Court of Appeals are at present members of the Legislature. Not only so, but if you will refer to the Statutes inhibiting the holding of more than one office you will see that in every case the inhibition is against the holding of two offices and nowhere have I been able to find any provision against the election to one office while holding another. Inasmuch as the law generally provides that an office holder shall retain his office until his successor is qualified I would suggest that you be careful to see that your successor qualifies as Judge of the Oity Court before you qualify as SolicitorGeneral. l\Iy conclusion is that you will be safe in retaining the office as Judge of the City Court as suggested herein.
very truly yours,
CLIFFORD WALKER,
Attorney-General.
44.9

A person holding himself out as an expert and tests eyes and fits glasses is liable for the tax prescribed by the Optometry Bill. Punch board is violation of the law.
September 22, 1916. Americus, Ga. Han. F. L. Thomas, DEAR SIR: I regret that the law does not allow the AttorneyGeneral to render official opinion except upon the request of the Governor. However, I do not mind saying to you that my understanding is that the Optometry Bill permits the simple sale of glasses without an examination or license. However, any one examining or testing eyes or fitting glasses or prescribing or holding himself out as an expert on such matter is liable to pay the license. In answer to your second question the courts have held that such schemes as the punch board you describe is a violation of the law, even though the full money's worth is always obtained. Trusting that this gives you the information you desire, I am,
Very truly yours, CLIFFORD \VALKER,. Attorney-General.
There is no law to prevent the county executive committee of a party from adopting a majority rule in the holding of primary elec' tions for nominating county officers.
September 27, 1916.
Hon. A: F. Byrd, Ordinary, Baxley, Ga.
DEAR SIR: Replying to your favors of September 22nd and 23rd I am of the opinion that the county executive committee can legally adopt the majority rule in the holding of primaries for .the nomination of county officers. Having complied substantially with the material requirements.of the primary laws they may prescribe such rules and regulations as are not directly in conflict .with the letter and spirit of the primary law. I am of the o.pin,ion that the majority rule is not so in conflict with that law.
Aside from the strict legality of that action if all parties accepted these regulations and acquiesced in the action of the
<150

c?mmittee and submitted their cause to th~ second prima:r;y they would be bound thereby and I know of no legal authority for setting aside the action of the people in the last election.
Trusting that this is the information you desire, I. am Very truly yours, CLIFFORD WALKER, Attorney-General.
Where authorized, a city or town may collect street taxes on males between the ages of 16 and 21 years of age.
September 27, 1916. Hon. Tom Jones,
Austell, Ga. DEAR SIR :. Replying to your favor of 26th instant I know of no law or decision of the Supreme Court which exempts a male between the ages of 16 years and 21 years from paying street tax legally imposed by a city or town. As suggested to you heretofore; I would listen to no claim of exemption not accompanied by a citation of the law itself to authorize it.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Medicines, tonics and extracts, containing more than one-half of one per cent. alcohol can be legally sold when intended for use as a medicine, but unlawful when sold and used as a beverage.
September 29, 1916. Andrews, the Druggist,
Brunswick, Ga. DEAR SIR : Replying to your unsigned letter of September 27th, I regret to say that the law permits the Attorney-General to render opinions only on official :request of the Governor. However, I have no hesitancy in favoring my friends with my personal views. The question you submit has not been passed upon by the courts and until so passed upon it will remain: more or less an open question. Inasmuch as many bona fide drugs contain more than one-half of one per cent. of alcohol;
451

to the attention of this. office the matter of the Inheritance 'J'a.:'_ due under the will of said deceased and particularly under i~mn
three of said will. The same reads as follows :

"I' give and bequeath to Right Reverend M. J. Curley, Bishop

of St. Augustine, :Florida, and to his successors in such office

forever the sum of about fifteen thousand dollars ($15,000.00), in

trust, the same to be invested by him or his successor in office in

.interest-bearing securities and the income therefrom to be used

in the perpetual upkeep and care and maintenance, of the family-

burying grown .. in Florida." .



\ The specifi question submitted is whether or not this fund of

$15,000.000 in trust is exempted under the. Inher!tance Act of

1913.

Able counsel for the Executrix points out the fact that there

has been no adjudication by the courts of Georgia on the ques-

tion involved and looking to the decisions of other States cites.

with confidence decisions rendered by the New York Courts. To

this it may be said:

_

1. The New York Statute differs materially from the Georgia

Statute, and particularly so as to exemptions of the nature of

the one now under consideration. The New York Statute ex-.

pressly exempts property devised or bequeathed for religious

ceremonies, observances or commemorative services, of or for

the deceased donor or to any person who is a Bishop, or to any

religious, educational, charitable, missionary, benevolent, hospital

or infirmary, corporation wherever incorporated, including cor-

porations organized exclusively for Bible or Tract purposes.

Personal property other than money or securities bequeathed to:

a corporation or association wherever incorporated or located,:

organized exclusively for the moral or mental improvement of

men or women or for scientific, literary, library, patriotic, ceme-

tery or historical purposes are also exempted. Ross on Inherit-

ance Taxation, 613. No such provisions or exemptions are al-

lowed under the Georgia Act. Acts of 1913, page 91.. 2. Not only so, but the New Yo~k authorities are .them-

selves in conflict even as to the New York law.

"A bequest to a cemetery corporation of another State, the in-

terest to be used for the purpose of keeping the testator's 'lot

in .good condition forever,' has recently been held subject to the New York Transfer Tax."-Ro~s on Inheritance Taxation, page

207, note .62.

, .. , .

4!?4

The court in the case of Estate of Fay, 62 l\Iisc. Rep. 154, 116 N. Y. Supp. 423, said:
"In matter of Vinot's Estate, 7 N. Y. Supp. 517. Surrogate Ransom held that a bequest of one thousand dollars to an asso ciation, the income of which was to be applied to the care and preservation of the burial plot of a decedent, was not taxable. As this decision has not been overruled by a higher court,'it might be considered as a controlling authority in this case. In view, however, of the language of the Court of Appeals in the Gould case, 156 N. Y. 423, 51 N. E. 287, and of the appellate division in the ~IcAvoy case, 122 App. Div. 377, 98 N. Y. Supp. 437, it would appear that the decision in the matter of Vinot would scarcely meet with the approval of the appellate courts at the. present time. In the Gould case it was held that the property was taxable, although bequeathed for the purpose of satisfying a contractual obligation existing at the time of decedent's death; . and in the McAvoy case it was held that the bequest was tax able, although the beneficiary received it in payment of services to be rendered thereafter. While it has been held that a sum spent by an executor in the erection of a monument to decedent i's exempt (~latter of Edgerton's Estate, 35 App. Div. 125, 54 N. Y. Supp. 700), and that a reasonabie sum spent in the purchase. of a burial plot for decedent may be regarded as a part of the funeral. expenses and therefore a proper deduction (Matter of Liss' Estate, 39 "!'.lise. Rep .. l23, 78 K Y. Supp. 969), there is a manifest distinction between such expenditures made by an executor in his discretion and a bequest made by decedent in his last will to a certain benefici.ary and for a certain specific purpose. In the latter case the property passes to the beneficiary, by virtue of the provisions in decedent's will, and as the statute provides that all property passing by will (if not going to parties specifically mentioned as being exempt), is taxable, the bequest to the Mt. Auburn Cemetery Association would seem to be taxable."
The Court in the l\Iavcrick case relied upon by counsel were divided in opinion, two of the five judges rendering a strong dissenting opinion. In re l\faverick's estate, 119 N. Y, S. 914. . The Georgia Act containing uo specific exemption, I am of the opinion that the transfer is taxable and that the judgment of the Court of Ordinary was correct. Having so concluded, I do not discuss the reasonableness of the sum fixed for the maintenance of the cemetery.
Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
455

A public school teacher is not exempt from road tax; elected for a longer term than one year would be removable for cause.
October 9, 1916. Professor J. B. King,
Richland, Ga. DEAR SIR: Replying to your favor of 4th instant, I can find ;no law which exempts a public school teacher from road tax. I presume that there was a clerical error in quoting Senator Smith. He probably stated that public school teachers should be exempt. I doubt the legality of the election of a teacher for a longer period than one year. Certainly he 1vould be removable for cause if he were elected for a longer term.
Trusting that this is the information.you desire, I am, Very truly yours, CLIFFORD wALKER, .Attorney-General.
The amended garnishment laws, as far as it relates to the liability of laborers to garnishment.
October 13, 1916. Mr. 0. 0. Newsome,
Summerville, Ga. DEAR SIR: I have your favor of recent date requesting information as to the recent garnishment law, as far as it relates to the liability of laborers to garnishment. In reply I will say that the law, as amended, reads as follows:
"All persons shall be exempt from the process and liabilities of garnishment on one dollar and twenty-five cents per day of their daily, weekly or monthly wages, and on fifty per cent. of the excess thereof, whether in the hands of their employers or others. All wages above the exemptions herein provided for shall be subject to garnishment, and the garnishee in making answer shall state specifically when the wages therein referred to were earned by defendant and whether the same were earnd as daily, weekly or month!~ wages."
I hope the above will give you the information you desire. Very truly yours, CLIFFORD WALKER, Attorney-General.
456

The law authorizing common carriers to charge certain fees for shipments of alcohol. ,
October 13, 1916. Valdosta Drug Company,
Valdosta, Ga: GENTLEMEN: Replying to your favor of recent date asking my opinion as to whether or not common-carriers can charge fifty cents for each shipment of alcohol, will say, that the law does not permit the Attorney-General to render official opinion, except upon the official request of the Governor. However, I take pleasure in giving you my views upon the subject; being, of course, worth no more than those of any other lawyer. Section 24, page 103, of the Acts of 1915, Extraordinary Session, provides as follows :
"That nothing in this Act shall make it unlawful for any per son, firm or corporation to have shipped, and have delivered alcohol for any purpose permitted by the laws of this State; and nothing herein shall be construed to. prevent wholesale druggists from furnishing or selling alcohol according to law to licensed retail druggists, or from furnishing or selling alcohol to public or charity hospitals or to medical or pharmaceutical colleges, nor shall this Act prohibit the sale by licensed druggists c:if wood or denatured alcohol for art, scientific or mechanical purposes, or grain alcohol to bacteriologists who are actually engaged in that class of work for scientific purposes only."
Section 430 of the Penal Code of 1910, provides:
"Nothing in the preceding Sections of this Article shall be so construed as to prevent wholesale druggists from selling or fur nishing alcohol in wholesale quantities to regular licensed retail druggists, or to public or charity hospitals, or to medical or pharmaceutical colleges. All wholesale druggists shall be re quired to keep a complete record of all their sales of alcohol, which record shall at all times be open for inspection to the regular authorities of such counties or cities in which such wholesale stores are located."
Section 426 of the Code provides the manner in which licensed retail druggists may sell or furnish alcohol for medici- , nal purposes only upon the prescription of a regular practicing physician of this State.
The Act of the Legislature approved August 19, 1916 (Acts
457

l.n6, page 72), .provides}or the bringing of alcohol into the State of Georgia for the purpose of its wse in manufacturing articles of commerce. This law prohibits railroad companies or other common-carriers from delivering alcohol when brought into this State except for use only in manufacturing articles of commerce, and also prohibits said companies from delivering such alcohol except in cases where the consignee makes affidavit as provided by said laws. The affidavit provided is that. appearing in the circular enclosed 'vith your letter.
It thus appears that wholesale druggists are permitted to sell or furnish alcohol to licensed retail druggists, or to public or charity hospitals, or to medical or pharmaceutical colleges~ without making the affidavit referred to by the consignee or the payment by him of the fee of fifty cents provided in the Act of 1916. However, if the alcohol is to be delivered to any person for use only in manufacturing articles of commerce, the affidavit referred to must be made and the fee provided must be paid before the transportation companies are permitted to make a delivery of the alcohol.
Very truly yours, CLIFFORD WALKER, Attorney-GeneraL
Justice of Peace has power to punish as for a contempt of court any person refusing to obey his summons to appear in his court.
October 13, 1916. Air. L. A. Free,
N. P. and Ex-Officio J. P., Colquitt, Ga. DEAR Sm: I have you letter of recent- date in which you request my opinion on the following matter: In a case where a person has been duly summonded as a juro1 in a Justice's Court and he refuses to obey the summons and appear in court, haS' the Justice of the Peace the authority to fine him, or to imprison him for contempt of court? In reply I will say that under Section 4746 of the Code the Justice can fine the defaulting juror not exceeding $5.00. Under Section 4679 (2) and. Section 4643 I think the Justice of the Peace has the authority
458

to 'imprison a: defaulting. juror not exceeding five hours .for contempt of court In the. case. of Ormond, Justice,. vs. Ball, 120 Ga. 9l6 {8; 9) the Supreme Court says: :''When~ver a "Justice of tlie Peace is holding court he. has all the powers usually incident to courts, such as to preser.ve and enforce. order, 'to compel 'obedience to judgments, orders, and process, and to ~eontroi the conduct of -officers and other persons connected, with 'the judicial proceeding before it in every .matter .pertaining thereto, and the like.''
Very truly yours,
w CLIFFORD ALRER,
Attorney-General.
. \' ,
Mandamus against City to enforce collection of taxes.
October 13, 1916. Mr. W; P. Aiken,
.. G-odfrey, Ga. DEAR SIR: I have your letter of recent date, in which you state that the municipal recorusof .the Town of Godfrey were .destroyed by fire in July, 1915. Some of the citizens have. paid their taxes for 1915. Other citizens refuse to pay such taxes. You state further that the municipal authorities now in office refuse to enforce collection of these taxes. You wish to know what remedy citizens have in such a case. In reply, I wilf say that if the amounts due as taxes can be ascertained, a mandamus .might be brought against the city authorities for the purpose of forcing them to take proper steps to enforce collection of the taxes due the city.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Justice of the Peace may change his place of holding court by complying with the law. Section 4701 provides manner of changing.
October 14, 1916. Hon. J. B. Mitchell, J. P.,
Kenwood, Ga. DEAR SIR: Replying to your favor of even date, I beg to say
459

that you have the authority to change the place of holding Justice's Court to some other place, naming it, by written order, a majority of the qualified voters of your district having petitioned for such a change. See Section 4701 of the Code. The Ordinary can act only after the Justice of the Peace has refused to make the change. The law fixes thirty days' notice when the _ordinary acts, but it seems to provide that when the Justice of the Peace acts, sixty days' notice, and the notice should be published or posted in the district for sixty days. In other words, I suggest that you sign the written order changing the place of holding the court from the present place to the new place, describing the new place, and post this written order at the old courthouse and make a copy of the order ancl post it at the new place designated. If you will do this there _ can be no question as to the legality.
Very truly yours,
CLIFFORD WALKER,
A.ttorney-General.
Under the Acts of 1915 and 1916 an express company is not author. ized to collect 25 cents a quart for the delivery-of alcohol.
October 16, 1916. J. E. Bozeman,
Sumner, Ga., R. F. D. No.2. DEAR SIR: Your letter of recent date, addressed to Hon. Frank Park, Sylvester, Ga., has been turned over to this office for reply. You wish to know whether an Express Company has the right to charge 25c on a quart of alcohol for delivering it when the express is prepaid. In reply, I will say that if the delivery is made to a licensed retail druggist, or public or charity hospital, or a pharmaceutical college, the express company would not charge any fee beyond express. If the alcohol is delivered to the consignee for the use in the manufacture of articles of commerce alone, a fee of fifty cents may be charged, one-half of which goes to the express company and the other half to the Ordinary of the County. See Acts of the Legislature of 1916, page 72. If the alcohol is delivered under the 16th Section of the A.ct of 1915, Special Session, page 99, which provides that
460

any person may accept delivery of and possess, within any period of thirty consecutive days, not more than two quarts of spirituous liquors or other intoxicating liquors or other prohibited liquors, the express company would be authorized to charge only ten cents on each separate delivery.
Trusting that the above is the information you desire; I am Very truly yours, CLIFFORD WALKER, Attorney-General.
The manufacture .of wine is absolutely prohibited.
October 16, 1916. Mr. Joseph R. Moody,
Screven, Ga. DEAR SIR: Your letter of recent date, addressed to the Governor, has been turned over to me for reply. You wish to know whether or not the law of this State prohibits the manufacture of wine for medical or Church use. In reply, I will say that the law of this State prohibits absolutely the manufacture of wine for any purpose.
Very truly yours, CLIFFORD WALKER, Attorney-General.
The fees allowed Ordinaries "For receiving application and granting letters dismissory" and "For services in making settlement of accounts of any executor, administrator, or guardian" are for two separate and distinct services.
October 16, 1916. Him. .A. H. Riley, Ordinary,
Butler, Ga. DEAR SIR: I have your letter of recent date, asking my opinion on the construction of Section 4827 of the Code. One provision in this .Section is that the Ordinary is entitled ~o a fee of $5.00 ''for receiving application and granting letters dismissory, whole service.'' Another provision is that the Ordinary is en-
461

titled to'a .fee:.of $10.00 ''for.services in.making settlemept of gccouuts of any executor, administrator, or. guardian; as prescribed in thi's Code." You wish to know whether the Ordinary is entitled to charge both fees.
In reply, I will say that the receiving of the application and granting letters dismissory, 'and the services in making settlement of accounts of any executor, etc., are entirely diffcrrnt transactions. The making of settlements involves the examination of the final' returns and all the vouchers attached thereto. The matter of receiving the application and granting letters dismissory is separate from the making of settlements. I am of the opinion, therefore, that the Ordinary is entitled to inclnde
both items in his b1Ii .{)f"cosfs..,. . . . .
Very truly yours, CLIFFORD WALKER, Attorney-General.
A Sheriff is not required by law to go after a fugitive from justice,
Held in another State, where his County Commissioners refuse to pay his expenses for the trip;
October 16, 1916. Mr. R. E.Battle, Sheriff,
Ell-aville, Ga. DEAR SIR: Your letter of recent date, addressed to the Governor, has been turned over to me for reply. It seems that a party charged with embezzlement in your county is being held in 'Oregon for the purpose of being returned to Georgia for trial, but th~t"the County Commissioners of your County refuse to appropriate money to bring this .man back to Georgia. You ask what your duty is in the matter. In reply, I will say that if the County Authorities refuse to pay the expenses of bringing this man back, there is nothing further that you can do. The law does not require you to go into another State a:t your own expense for the purpose -of bringing back for trial to this State a fugitive from justice.
Very truly yours, CLIFFORD wALKER, Attorney-General.
.4,62

A town or city may levy and collect a license or occupation tax for:carrying on a business, though the stat~ aiso levies anil collect~ a tax on the same business, except in cases where sp-ecifically excepted.
Atlanta, Ga., October 19, 1916. DeCamp Glass Casket Co.,
.Atlanta, Ga. GENTLEMEN: I have your letter of recent date, in which you ask for some information in regard to Municipal Taxation. In reply, I will say that the fact that you have complied with a State law authorizing you to carry on the business of selling stock in the State, _and have even paid a tax to the State for the privilege of carrying on the business, would not prevent a Town or City from also levying a license or occupation tax for carrying on the business in such Town or City. In this connec:. tion see the case of l\Iartin vs. Town of Statesboro, lOOth Georgia Report, page 419.
Very truly yours, CLIFFORD. wALKER, Attorney-General.
Under the Act of the Extraordinary Session of the General Assembly of 1915, Section 1, page 91, a common carrier would be guilty criminally if more than the quantity of intoxicating. liquors allowed to one person were delivered to such a person within the period stated with the knowledge of the agent of such a carrier.
October 20, 1916. Jllr. B. C. C1tllens,
Southern Express Co., lVaycross, Ga. DEAR SIR: Your letter of the 19th instant, addressed to the Governor, asking for some information regarding the last prohibition law, has been turned over to this Department for reply. Replyin'g thereto I will say that Section 1, page 91, Acts Extraor.,. dinary Session 1915, makes it a misdemeanor for any transportation company to deliver to one person more than the quantity of liquors allowed therein per month. The company would, therefore, be liable if the agent knew the consignee was
463

violating the law in receiving more liquors than are permitted, as the law makes it the duty of the transportation company to keep a record of the shipments and to see that no person receive more than the quantity allowed per month.
I trust that the above is the information you desire. Very truly you.rs,
CLIFFORD wALKER,
Attorney-General.
The election held for the purpose of passing upon the establishment of a municipal court for the city of Augusta is held in the same manner as all other general elections.
October 21, 1916: Mr. Loyd T. Hall, Clerk,
Augusta, Ga. DEAR Sm: I have your letter of October 14th, requesting information on the matter of the election to be held on November 7th, 1916, for the purpose of passing on the question of establishing a municipal court for the City of Augusta. In reply, I will say that this election, will be held in the same manner as all other general elections are held. See Section 38 of the Act approved August 19th, 1916. Section 76 of the Code of this State provides:
"The persons qualified to hold such elections are: Ordinaries, Justices of the Peace, and freeholders. There must be three Superintendents, and one must be either an Ordinary or a Justice of the Peace, except in a certain contingency herein after to be set forth."
The contingency referred to is where no proper officer is present to hold the election, or where there is one present but he refuses to act. In that event three freeholders may superintend the election. See Code Section 81. The persons above referred to are the only persons qualified to hold any election, and it is necessary under the law that such persons superintend the election referred to.
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
464

Governor cannot appoint detectives.
October 21, 1916. D. A. Barlow, Esq.,
Cochran, Ga. DEAR SIR: Your letter of recent date addressed to the Governor has been turned over to this department for reply. In reply I will say that the Governor of this State has no authority under the law to appoint detectives. It will be well for you to see the local county authorities or the municipal authori ties in regard to this matter.
Very truly yours, ' CLIFFORD WALKER, Attorney-General.
A person who has had three fingers amputated is subject to road duty or street tax.
October 24, 1916. Mr. Alonzo Daughtry,
R. F. D. No.6, Box 7, Tifton, Ga. DEAR SIR: Your letter of the 22nd inst. came to hand and I have referred same to the Attorney-General. These matters do not come within my jurisdiction, but I have. asked the Attorney-General, Mr. Clifford Walker, to take the matter up for you so that he may write you concerning the law that troubles you, if he can do anything for you. Sorry I can not do more than this.
Very truly yours, NAT. E. HARRIS, Governor.
*****
October 24, 1916. Mr. Alonzo Daughtry,
R. F. D. No.6, Box 7, Tifton, Ga. DEAR SIR: Your letter of October 22nd; addressed to the Governor, has been turned over to this Department for reply. It appears that you have had three of your fingers amputated, and you wish to kllow whether or not this fact relieves you from road
465

duty or street tax. In reply, I will say that Section 647 of the

Code of this State, provides as follows:



"All male iNhabitants in this State, between the ages of sixteen ami fifty years, shall be subject to work on the public roads,. except ordained ministers of the gospel, who are in the regular discharge of ministerial duty, and in charge of one or more churches; and all men who have lost one arn1 or one leg."

It thus appears that since you, have not lost one arm or one: leg you are not exempt from road duty. Persons who are not exempt from road duty under the l~ws nf the State are subject to street tax where they resid() in incorporated towns or villages, or cities.
Very truly yours, CLIFFORD WALKER, Attorney-General..

In order to entitle a person to vote he must have been a citizen of the ~tate eighteen months before the general election.
October 24, 1916. E. G. Carroll, Esq.,
Rossville, Ga. DEAR SIR: Replying to your favor of recent date I beg to advise that a man must be a citizen of this State twelve months: before he can even register. In other words, he must have been in the State eighteen months before the general election to register and vote in as much as the registration books close six months before the election.
If a man moves out of the State and becomes a citizen of imother State the above rule will apply to him, even though he remain a citizen of the foreign State only a short time. If he wishes to vote in Georgia he must remain a citizen of this State.
Trusting this is the information you desire, I am, Very truly yours, CLIFFORD \VALKER, Attorney-GeneraL

466

_,.

, ;.,. , """ ,,~; ,, .. ,~,... , " ~'Oetober 24, l916 .

w. 1 .H~n. L:'st~1~~~u; Y'' "., .,. ~: !,-.:~,-~ ~ .:~- ~,.. : :,.'' , '.'.,

LaFayette, Ga.

-

'

DK~R :Sm; ,. i ~- ,qeeply regret that absence from the office prevented an earlier reply to your fav~r.,o.f..lB.tlf ,ipstan~....\ , L\

The law requires the Governor to send 0;ut .11lanks for election

tally sheets; et<l., to the Ordinaris of, the different covnties: , It

.is their duty,to hand' them to the :Justice.:ofthe Peace who acts

as manager of the election. There is absolutely no- prO'vision.of

law for paying .for the tickets: The friends -and candidates,. both

State and local, must, therefore see to: it- that the .ti-ckets: . are

furnished. In practice, I -understand that the Executive Com-

' mittees take this fact into consideration in levying- the. amounts

of assessments upon candidates in the primary and retain enough

funds after the primary to m:eet this expense,
This seerns to be somewha:t loose and :unsatisfactory, but :r

. understand that this is the way the matter is handled.. ' ''.

Very truly yours,

CLIFFORD wALKER', : .. I

Attorney-General.

The State has no power to prohibit the use of the mails to periodicals containing liquor advertisements.

October 25; 1916.

Re,v. llfr. W. ().. G{enn,

Claxton, Ga. DEAR SIR: Replying to you~ favor of _the 18th. instant, I re-

gret to advise that while it is unlawful to advertise liquor in

papers or magazines the State can not prohibit the .use .of the

.mails for such purposes.







.. Efforts ,are being. made to secure. remedial legislation and I .trust they. will be successful.

Very truly. yours,

CLIFPORD WALKER, .
Attorney-General.

467

A municipality has the authority to divide the general business of merchandising into as many specific classes as they deem proper and to levy an occupation tax on each of such classes. A tax on cigarettes is therefore valid, though the dealer also pays a general business tax.

October 26, 1916.

Blackshear Drug Company,

Blackshear, Ga. GENTLEMEN: I have your letter of recent date in which you say that you have paid a business tax to the City of Blackshear,

and that now the City has passed an ordinance placing a tax of $300.00 on any person engaged in the sale of cigarettes. You wish to know whether the City is authorized to collect both the -

business tax and the tax on cigarettes. In reply, I will say that in my opinion the City has the power.

and authority to divide the general business of merchandising into as many specific classes as they may deem proper, and to

levy an occupation tax on each of such classes. From the facts stated in your letter I think the cigarette tax is a valid tax. See in this connection the case of Kelly vs. City of Atlanta, 69

Ga., page 583.

Very truly yours,

CLIFFORD wALKER,
Attorney-General.

The collection of a local school tax can not be defeated by an election held during the fiscal year after such tax has been duly levied.
October 26, 1916. Hon. W. H. Stembridge, Ordinary,
Milledgeville, Ga. DEAR SIR: I have your letter of the 23rd instant, in which you say that a petition has been filed asking for an election to be held for the purpose of deciding whether or not the local tax in a school district shall be repealed. The election will probably be held in December of this year. You wish to know whether or not in the event the election carries for the repeal of the tax, the local tax 'levy for the present year can be collected.
468

In reply I will say that the fiscal year runs from January 1st to December 31st. Also the scholastic year is coincident with the calendar year. The taxes therefore for the year 1916 for this local school district have accrued and have been levied, and contracts have been made in contemplation of the collection of this tax. The levy of the school tax therefore for the fiscal year 1916 is collectible, and the collection of the same,. can not be defeated by the repeal of the local tax for this district.
Very truly yours,
CLIFFORD WALKER,
Attorney-General

The amendment to the charter of the Independent Presbyterian Church granted by the legislature is void. Legislature nas no power to grant amendments in such cases.

October 26, 1916.

Hon. Samuel B. Adams, Attorney-at-Law, Savannah, Ga.
DEAR SrR: I have your letter of the 20th instant relative to the matter of the amendment to the charter of the Independent Presbyterian Church. In reply I will .say that this

matter was referred to me by the Governor, but no formal -opinion was rendered. A hasty verbal opinion was furnished by me. At the time I was familiar with the case of Jones vs.

Habersham, 107 U. S. 174. This decision seems to me to be

directly in the teeth of the Constitutional provision: "The Gen-

eral Assembly shall have no power to grant corporate powers ,

and privileges to private companies

. but it shall pre-

scribe by law the manner in which such powers shall be exer-

cised by the courts." I do not understand how the Legislature can have power under this provision of the Constitution to grant an amendment to a charter to an existing corporation and thereby confer additional corporate powers and privileges upon such corporation. It seems clear to me that such an amendment does confer corporate powers and privileges upon private companies. But whether the decision above referred to is sound or not, it seems to me that we have legislative construction at least of the provision of the Constitution above quoted

469

in thB Act. of the l}egit?lat~J.:re o~ ~897,..now,, cqdified.as ~ection
:2823 (6), of the Code. : T.hisSection _provides. "tl,le pqwers con;:ferr.ed in this Sectiop shall extend_ to the a!llendment. and. re-

:newal of all charters contemplated in the.: Section, w;ithip. the 'jm:isdiction of said Court,. whether the, original chart~r SO]lgh,t

ito be amended or renewed was.or.iginally granted. by thE1 Gel\-

-~ral.Assembly of the State. or ,by. a Superior Court :of.1this

State.'' .

.,_: ~ : _,, J _..~

_ .



Taking into consideration .the provision of this Act, I was

at the-time the matter of the charter was referred to me and
.Iun now _of the 'opinion that the Legislature has no power to

grant an amendment to a charter such as that referred to in

your letter. At any rate it is- clear from the Section of the

(Jode above ref~rred to that the Superior Court has full power

f/t_; C'~:'

',,- r

'

~

-.

~.

'

I-~.

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.,

.~nd._authority to grant the ameridm~nt to the charter which is

desired by the Church.

Very truly yours,

CLIFFORD WALKER,

. Attorney-General.

_A -local school district in a county having a county-wide tax for school

'

purposes can not issue bonds for the purpose of erecting school

house~



October 27, 1916.

Hon. B. D. Purcell, County Superintendent of Schools,

Jesup, Ga.



DEAR Sm: I have your letter of the 23rd instant, asking my opinion as to whether or not, under the Acts of 1912, pages 176

_and 177, a school district in.a county having a county-wide local

.tax can issue bonds for the purpose of building and equipping -a schoolhouse.

In reply, I will say that the Act referred to provides ''for issuing bonds for the purpose .of building schoolhouses in school .districts in which a local tax is now or may hereafter be levied .for school purposes/' It is clear that- this Act refers only to _local school distric-ts where a local district school tax is levied. ~l. dO not. think the provisions of this Act would apply in a

.:470

scho~l district which is embraced in.a county having a countywide local school tax. I do not think the. provisions of this Act could apply in such a case for the further reason that the law provides no machinery in such cases for the levying of taxes to take care of the intere~t on the bonds or to provide for. a sinking fund. Bonds can not be issued by any political division of the State unless there is specific authority in the law for the issuance of the same.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Liable to tax upon dealing in bicycles.
October 28, 1916. The Farmers Hardware Company,
llladison, Ga. GENTLEMEN: Your letter of recent date regarding the tax on bicycles was duly received. You say that you do not keep bicycles in stock but that you sell a few of them, taking the orders and then ordering them out. You wish to know whether or not you are subject to the ~tate tax. Section 927 of the Tax Act provides: "Upon every bicycle dealer selling or dealing in bicycles, either at wholesale or retail, for themselves, or upon commission, or consignment, the sum of $10.00 for the fiscal year or any pa~t thereof, to be paid to the Tax-Collector of the county at the time they may commence business.'' From the above quoted provision of the law it appears that your company will be liable for the tax. I hope the above will give you the information you desire.
Very truly yours, CLIFFORD 'WALKER, Attorney-General.
471

It was not the intent of the Prohibition Act of 1915 that any slight, inadvertent error in spelling the name of the consignee should operate to prohibit the delivery of a shipment.
October 30, 1916. T. B. Ford, Esq., P. M.
Sylvester, Ga. DEAR SIR: Replying to your favor of 28th instant, I regret that the laws of Georgia permit the Attorney-General to render opinions only on official request of the Governor. However, I am glad to give you my personal views on the question submitted. It was not the intent of the recent prohibition law that any slight, inadvertent error in spelling the name of a consignee should operate to prohibit delivery of packages of bona fide purchasers of whiskey who provide identification and sign their proper names to the records delivery affidavit. Law is reasonable. The provision of the prohibition law referred to was aimed at purely fictitious employment of false names in order to deceive, not slight errors in spelling. The express agent, who is also postmaster, should apply the same rule to patrons of his company as he does to patrons of the postoffice department. He is being paid as a quasi-state officer under the recent law and he runs the risk of losing this connection if he is unreasonable in his construction and enforcement of the law. Trusting that this is the information you desire, I am,
. Very truly yours, CLIFFORD WALKER, Attorney-General.
A Confederate soldier who meets the requiremen.ts of Section 1888 of the Code of this State may carry on the business of dealing in cigarettes without paying license for so doing, subject however to reasonable regulations in the conduct of his business. (Campbell vs. Thomas, 6 Ga. App. 212.)
October 31, 1916. Dr. P. Smith,
Conyers, Ga. DEAR SIR: Your letter of recent date, requesting my opinion as to whether or not a Confederate soldier is authorized to carry
472

on the business of dealing in cigarettes in a town or city without the payment of any license tax imposed by such municipality. In reply, I wi~l say that under Section 1888 of the Code of this State any disabled or indigent Confederate soldier or soldiers of the Seminole, Creek, or Cherokee Indian war, or :Mexican war, who is a resident of this State may carry on this business in any town, city, county, or counties of this State without paying license for the privilege of so doing. You >vill note.that the Section refers to any disabled or indigent Confederate soldier. Such soldier is also required to obtain a certificate from the Ordinary of the County, stating the facts of his being such disabled or indigent Confederate soldier. However, such soldier stating he is exempt from the payment of the license tax is still su.bject to reasonable regulations in the conduct of his business by the municipality. See Campbell vs. Thomas, 6 Ga. App. 212.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
Managers of National election should count all the tickets that are voted.
November 3, 1916. Hon. J. E. V. Lyon,
Ball Ground, Ga. DEAR SIR: Replying to your favor of November 2d, managers of National election should count all the tickets that are voted. The consolidated return should show the. sum total of votes counted. This can be interlined in the event a name voted for does not appear on the printed consolidated sheet. Trusting that this is the information you desire, I am,
Very truly yours,
CLIFFORD WALKER,
.Attorney-General.
473

County Tax:collector's commissions.
November 3, 1916. Hon. Chas. L. Davis, Commissioner,
lVarm Springs, Ga. DEAR SIR: I have before me your request for an opm10n as to the right of a County Tax-Collector to retain commissions from taxes paid by corporations. I beg to advise that the Tax-Collector collects all taxes and retains the usual commission on amounts appearing on the tax digest. This applies to ad valorem taxes. I presume you referred to specialoccupation taxes. These are reported to the Ordinary and collected by the Tax-Collector under special Section of the Tax Act and the Tax-Collector is entitled to retain ten per cent. for collecting. Occupation taxes for foreign corporations are paid through the Comptroller-General and the Tax-Collector is entitled to no commission on the same. If I have not answered the specific question in your mind I will be pleased if you will write me again.
-Very truly yours, CLIFFORD \VALKER, Attorney-General.

No fee provided for the Ordinary for services rendered in making up election blanks and getting them out to the various precincts for an election.

November 3, 1916.

Hon. H,. B. Smith,

Dah?onega, Georgia. .

. DEAR SIR: Replying to your favor of yesterday I regret t?

say that I know of no law. providing for the ,payment to an

Ordinary for services re~dered in making up election blanks

and getting t~em out to the various precincts for an election.

. . R~gretting thi.s,



Very truly yours,

CLIFFORD WALKER,

Attorney-General.

'474

In a regular election the candrdate for a county office receiving the highest .number of votes is elected.
November' 8,. 1916. Hon. Joe McHancock,
Ashburn; Ga. DEAR SIR: Replying to your favor of yesterday the man who receives the highest number of votes at the election held yesterday should be declared duly elected, whether he was nominated in a primary or not. The primary is only a nomination; it binds only the participants in that primary and they are bound only morally. They themselves can vote for another if their consciences will permit them to do so. In law it does not matter how a candidate is nominated or if he is not nominated at all. The people have a strictly legal right to vote for wliomever they please and the candidate receiving the highest number of votes of the people is entitled to have his votes canvassed and returned and to have his election certified to.
Very truly yours, . CLIFFORD "\VALKER, Attorney-General.
Law governing admission to the bar of Georgia.
November 9, 1B16. Mr. S. 11!. Dinkins,
Bullard, Ga. . DEAR SIR: Replying to your favor of the 8th instant inquir.ing as to the admission to practice law in Georgia, will say, that if the State wherein you were admitted to practice allows lawyers from Georgia to be admitted without examination, then Georgia admits lawyers from that State without examination. See Section 4942 Code 1910.
As to examination, Section 4935 of the Code 1910 provide$ as follows:
"The applicant must be examined touching his knowledge: "l. Of the princ,iples of the common and statute law of Eng land, of force in this State.
475

"2. Of the law of pleading and evidence. "3. The principles of equity, and equity pleading and practice. "4. The Revised Code of this State, the Constitution of the United States and of this State, and the rules of practice in the Superior Court."
I trust the above will give you the information you desire. .Very truly yours,
CLIFFORD WALKER,
Attorney-General.

Compensation of Tax-Collector on list furnished by Comptroller-General. Read, Tax-Collector, vs. Glynn County, 90 Southeastern Reporter, page 60 (5).

November 16, 1916. Hon. Ohas. L. Davis, Commissioner,
Warm Springs, Ga. DEAR Sm: Replying to your last letter I beg to say that the question you submit has been before the Supreme Court and they have ruled as follows:

"The compensation of a Tax-Collector is fixed by Civil Code of 1910, Paragraph 1234, which provides that: 'On all digests for the first one thousand dollars, six per cent.,' and on greater amounts he is allowed by this Section smaller percentages as commissiOns. This Section does not authorize the Collector to treat as a separate and distinct digest from all others the state ment or list furnished him by the Comptroller-General, setting forth the names of the public service corporation and amounts of taxes due by them to the county on property owned by them in the county. Instead of computing full commission on the statement or list furnished him by the Comptroller-General, the Tax-Collector must compute his commissions according to the percentages fixed by Section 1234 of the Code on the aggregate amount of taxes under the digest furnished him by the TaxReceiver and the statement or list furnished him by the Comp troller-General." Read, .Tax-Collector vs. Glynn County, 90 SouthPastern Reporter, page 60 (5).

This case has just been decided by the court and can only be found in the Advance Sheets referred to above. It will be pub-

lished in the next volume of the Georgia Reports.



Very truly yours,

CLIFFORD WALKER,
Attorney-General.

476

Constables are county officers and as such their terms of office have been extended from two to four years.
November 16, 1916. Judge L. A. Perdue,
Newnan, Ga. DEAR SIR: Replying to your inquiry of the 13th inst., as to whether constables are included in the law passed in 1914 amending the Constitution so as to make the term of office of county officers four years, instead of two, I beg to advise that our courts have never passed on the question, definitely, as to whether constables were county officers. In the case of Rose v. State, 107 Ga., page 703, however, the question is discussed at some length, and, while that particular question was not the matter under direct decision at that time, yet the entire argument of the court is to the effect that constables are comity officers, and there is an intimation that if the matter were before the Supreme Court that that would be their conclusion. It would seem, therefore, that, as our law stanrls at present, constables should be treated as county officers, and as such county officers that their term of office would come under this constitutional amendment, making it four years instead of two.
Yours very truly, CLIFFORD wALKER, Attorney-General.
A person cannot legally hold the office of Justice of Peace and be- a member of the Board of Education at the 'same time.
November 18, 1916. JJlr. I. 111. Barksdale,
JJlayfield, Ga. DEAR SIR: Replying to your letter of the 9th inst., wherein you request my ideas as to whether you can hold the office- of Justice of the Peace and also be a member of the Board of Education at the same time, I beg to advise that while I do not see how the holding of one of these offices would be, in any way, inconsistent with holding the other, yet there is a provision of our law, contained in Section 258 (4) of our Code, which
477

says that a person holding any office of profit or trust under the government of the United' States (other than that of postmaster), or of either of the seyeral States, or .any foreign State, is held and deemed ineligible to hold any civil office in this State. This would seem to preclude the holding of two State offices at the same time by any one, except that a Justice of the Peace 'may be'a Legislator. In the case of McWilliams v. Neal, 130 Ga. 735, it is held that a member of the Board of Education is a State officer, and therefore ineligible to election as a member of the Legislature. And in the case of Long v. State, 127 Ga~ 286, it is said that a Justice of the Peace is an officer .of'the State, although that was not the point at issue in the trial of that case. The trend of the opinions seems to be, however, that both of these offices ilre State offices, and that, therefore, it does not seem that one person could hold both at the same time.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Law regulating the time of opening and closing the books to receive taxes. Bond of Tax-Receiver.
November 21, 1916. Hon. J. M. ![night, Tax-Receiver,
Valdosta, Georgia. . DEAR Sm: Your letter of the 20th received. Replying thereto, will say that Section 1116(f) of Park's Annotated Code (Acts 1913, page f23) regulates the time of opening and closing. the books to receive taxes, and is as follows:
"The several Tax-Receivers of this State 'shall open their books for returns of taxes on the first day of February and shall close the same on the first day of May of each year, and within ten days thereafter it shall be the duty of the Tax-Receiver of each county to present the tax returns of the county for the current year to the County Board of Tax-Assessors created by this 4rticle, for the purpose herein contemplated and provided. The Tax-Receiver .shall not transmit .copies of this tax digest to the. Tax-Collector and the ordinary of the county until after the same shall have been finally received and corrected to conform to the final finqings of the State l'a_x-Commissioner under the pro-

VISIOns of Section lll6(t) and lll6(u). When the tax returns of any county are finally adjusted and fixed as provided by said Sections lll6(t) and lll6(u) the Tax-Receiver shall forthwith send one copy of the revised and corrected county tax digest to the Comptroller~General and one copy each to the Tax-Collector and Ordinary of the county as now provided by law. The in dividual returns made by taxpayers to the Tax-Receiver, shall be for property held and subject to taxation on the first day of January, previously."
As to the bond of Tax-Receiver, Section 292is as follows:
"The official bonds of the Clerk of the Superior Court, of Sheriffs, Coroners, County Surveyors, County Treasurers, TaxCollectors, and Tax-Receivers, given for county taxes, must be approved by the Ordinary and filed in his office, and by him recorded. The bonds of Tax-Collectors and Tax-Receivers for State taxes, after being likewise approved, must be recorded by the Ordinary, and the original bond must be by him transmitted to the Governor for deposit in the Comptroller-General's office."
Also Section 1195 :
"Such Receiver, whether elected or appointed, before, entering on the duties vf his office, besides the oath required of all civil officers, must take and subscribe th.e following oath: _'I swear that I .will truly and faithfully perform the duties o( Receiver of returns of taxable property, or of persons or things specially taxed in the county to which I am appointed, as required of me by the laws, and will not receive any return but on oath or affirmation, and will, before receiving rethrns, carefully e:xa'mine each, and will to the best of my ability carry .out all the re quirements made upon me by the tax law, so help me God.' He shall also, at the same. time, give bond and security in a sum equal to one-fourth of the amount, of the State tax supposed to be due from the county for the year in which he shall give bond;. provided, however, that no T~x-Receiver 'shall be required to give a bond exceeding tne 'sum of ten thousand dollars; ti1e amount of said ,bond to ;be filled by the Comptroller-General before being l3ent out to tbe several counties from the executive offices."
Very truly, yours,
" CLIFFORD WALKER,
, , ... , . Attorney-General:
479

No law prohibiting bank officers from charging a commission for themselves for making loans of the bank's funds, unless resorted to in order to evade the usury laws of the State. Such conduct violates every moral law.
November 23, 1916. Hon. A. M. Smith,
Brunswick, Georgia. DEAR SIR: Replying to your favor of 19th instant, I know of no law prohipiting bank officers from charging a commission for themselves for making loans of the bank's funds. Such conduct violates every moral law and in my personal judgment would be reason sufficient to require a resignation if I were a stockholder or an officer of the bank. If the scheme is resorted to not for the personal interest of the officer but in order to evade the usury law in the interest of the bank, then the usury penalties would be involved.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Under Section 4879, Clerk of Superior Court is disqualified to practice law in any of the courts. Clerk may abstract titles to lands.
November 24, 1916. Hon. John R. Powell, Jr.,
- Swainsboro, Ga. DEAR SIR : Further referring to your favor of 21st instant, I am of the opinion that under Section 4879 the Clerk of the Superior Court is disqualified from practicing law in any of the courts. However, I think that he can abstract titles to land without offending the law. At first I was somewhat in doubt about the matter, as I recall that this question was before me some time ago. On reflection it now occurs to me that that question turned upon whether or not abstracting title was practicing law; whereas the law in this case says that the Clerk shall not practice in any court. It is clear that abstracting title is not practicing in any court, and I feel sure, therefore, that you will be safe in so doing.
Very truly yours, CLIFFORD WALKER, Attorney-General.
480

The Act approved August 16th, 1915, creating the Haralson Board of Commissioners is constitutional.
November 24, 1916. Dr. E. B. Hutcheson,
Buchanan, Ga. DEAR SIR: I regret that l have been unable to find time to reply sooner to your favor of 13th instant. The law permits the Attorney-General to render opinions only upon official request of the Governor. However, I am glad to give you the benefit of my personal views and beg to advise that the courts have distinctly held the constitutional provision that no special law shall be enacted in any case for which provision has been made by an existing general law and the further constitutional provision. with reference to the uniformity of laws pertaining to county offices do not apply to County Commissioners. The Constitution, Article 6, Section 19, Paragraph 1 (Civil Code, No. 6548), provides "the General Assembly shall have power to provide for the creation of County Commissioners in such counties as may require them, and to define their duties." "The Legislature has the power to pass separate and distinct Acts for any county which require County Commissioners; and it is not necessary that these Acts shall be uniform in their operation in all such counties.'' County of Pulaski vs. Thompson, 83 Ga. 270. See also, Sayer vs. Brown, 119 Ga. 545. l\fy conclusion is the Act approved August 16th, 1915, creating the Haralson Board of Commissioners is not unconstitutional upon the grounds stated. The Legislature may provide any method for electing the Commissioners as it may see fit. Trusting that this is the information you desire, I am,
Very truly yours,
CLIFFORD wALKER,
Attorney-General.
481

No Jaw prohibiting bank officers from charging a commission for themselves for making loans of the bank's funds, unless resorted to in order to evade the usury laws of the State. Such conduct violates every moral Jaw.
November 23, 1916. Hon. A.M. Smith,
Brunswick, Georgia. DEAR SIR: Replying to your favor of 19th instant, I know of no law prohi~iting bank officers from charging a commission for themselves for making loans of the bank's funds. Such conduct violates every moral law and in my personal judgment would be reason sufficient to require a resignation if I were a stockholder or an officer of the bank. If the scheme is resorted to not for the personal interest of the officer but in order to evade the usury law in the interest of the bank, then the usury penalties would be involved.
Very truly yours, CLIFFORD WALKER, Attorney-General.
Under Section 4879, Clerk of Superior Court iS disqualified to practice law in any of the courts. Clerk may abstract titles to lands.
November 24, 1916. Hon. John R. Powell, Jr.,
- Swainsboro, Ga. DEAR SIR: Further referring to your favor of 21st instant, I am of the opinion that under Section 4879 the Clerk of the Superior Court is disqualified from practicing law in any of the courts. However, I think that he can abstract titles to land without offending the law. At first I was somewhat in doubt about the matter, as I recall that this question was before me some time ago. On reflection it now occurs to me that that question turned upon whether or not abstracting title was practicing law; whereas the law in this case says that the Clerk shall not practice in any court. It is clear that abstracting title is not practicing in any court, and I feel sure, therefore, that you will be safe in so doing.
Very truly yours, CLIFFORD WALKER, Attorney-General.
480

The Act approved August 16th, 1915, creating the Haralson Board of Commissioners is constitutional.
November 24, 1916. Dr. E. B. Hutcheson,
Buchanan, Ga. DEAR SIR: I regret that .I have been unable to find time to reply sooner to your favor of 13th instant. The law permits the .Attorney-General to render opinions only upon official request of the Governor. However, I am glad to give you the benefit of my personal views and beg to advise that the courts have distinctly held the constitutional provision that no special law shall be enacted in any case for which provision has been made by an existing general law and the further constitutional provision. with reference to the uniformity of laws pertaining to county offices do not apply to County Commissioners. The Constitution, .Article 6, Section 19, Paragraph 1 (Civil Code, No. 6548), provides "the General .Assembly shall have power to provide for the creation of County Commissioners in such counties as may require them, and to define their duties." "The Legislature has the power to pass separate and distinct .Acts for any county which require County Commissioners; and it is not necessary that these .Acts shall be uniform in their operation in all such counties.'' County of Pulaski vs. Thompson, 83 Ga. 270. See also, Sayer vs. Brown, 119 Ga. 545. J'vfy conclusion is the .Act approved .August 16th, 1915, creating the Haralson Board of Commissioners is not unconstitutional upon the grounds stated. The Legislature may provide any method for electing the Commissioners as it may see fit. Trusting that this is the information you desire, I am,
Very truly yours,
CLIFFORD wALKER,
.Attorney-General.
481

The regulation of the railroad requiring consignees to sign receipts for alcohol personally is entirely legal and reasonable.

J. B. Ryals Drug Company,

November 24, 1916.

Cordele, Ga. GENTLEMEN: Replying to your favor of yesterday it is my

opinion that the regulation of the railroad requiring consignees

to sign receipts for alcohol personally is entirely legal and rea-

sonable. You will recall that a special concession was made to druggists in this matter. Large hotels, hospitals and other

such institutions are appealing to me daily for relief from the

prohibit_ion laws, but we can find no authority for concessions to them. The railroads would violate the law if they were to de-

liver alcohol to other than those favored by the exceptions on the prohibition law, and it is necessary in order to protect

themselves that reasonable safeguards be thrown around the

delivery. There will be all conceivable efforts to get around these prohibition laws and on reflection I believe you will conclude that efforts to enforce the law should be encouraged. It has never been given a fair trial in Georgia. If we can try it

for three or 1our years we can. then determine once and for all whether the law is a good one or not. In the meantime, all of us should be willing to lend our aid even if we are placed to

inconvenience at times.

Very truly yours,

CLIFFORD wALKER,
Attorney-General.

Section 4782 expressly provides that the Ordinary shall not hold office until his successor is qualified as is true in some other offices, but there is provision for the Clerk of the Superior Court to perform the duties of the office ad interim.
November 25, 1916. Hon. S.D. Harn,
Clyde, Georgia. DEAR Sm : Replying to your favor of 22nd instant I beg to advise that Section 4782 of the Code applies to question submitted.
4~2 .

It appears that in the regular election held on the 7th day of November, 1916, 1\Ir. W. E. Butler was elected Ordinary of Bryan County; that on the 15th day of November, before being qualified as Ordinary, and before the expiration of the present term, Mr. Butler departed this life. The present term expires on the 31st day of December, 1916. On the 1st day of January1 1917, there will be a vacancy in the office of the Ordinary and under the provisions of Section 4782 it will be the duty of the Clerk of the Superior Court of Bryan County on said day of January, 1917, to order an election to take place within twenty ~ays from the date of said order giving notice thereof by publication and until the vacancy is filled the law directs that the Clerk of the Superior Court shall perform all the duties which the Ordinary could perform as Clerk. It will be seen, therefore, that this Section expressly provides that the Ordinary shall not hold office until his successor is qualified as is true in some other offices, but there is provision for the Clerk of the Superior Court to perform the duties of the office ad interim.
Trusting this is the _information you desire, and with an expression of my high personal regards, I am
Very truly yours, CLIFFORD .W,ALKER, Attorney-General.
County Treasurer can not calculate commissions on his commissions.
November 27, 1916. Hon. J. J. Paulk,
Ocilla, Georgia. DEAR SIR: Replying to your favor of 25th instant I have been unable to find any law which authorizes the Treasurer to calculate commissions on his commissions and retain both sums. Such calculations have been held illegal in cases of Executors and Administrators and I find no authority for it as to County Treasurers. If you can cite any authority to me I will be
pleased. to consider it as it is an interesting question.
very truly yours, CLIFFORD WALKER, Attorney-General.
483

It is the duty of the county authorities to pay the managers and clerks regular compensation for holding elections for Justices of the Peace and Constables.
December 6, 1916. Hon. Z. B. Rogers,
Elberton, Ga. DEAR Sm: Replying to your favor of 4th instant I am of opinion that it is not only the right but the duty of the county authoritiE;s to pay managers and clerks for election of Justices of the Peace and Constables regular compensation for holding such election. Section 118 provides that such election shall be governed by the law regulating a general election. I am clear in the opinion that it was the purpose of the law to provide such compensation and such interpretation is in accord with equity and justice. Trusting that this is t~e information you desire, I am,
Very truly yours,
CLIFFORD WALKER,
Attorney-General.

The death of a tax collector, who has been reelected, before his new

term begins, creates a vacancy in the office which can be filled

by an election duly called by the Ordinary.

~:-:~--

--~-- ~~~~--~ :.s-~-~~1:-~l ~'.~' '!~~-,._ ... '~ . ---- ;- ~~

' 'December 7, 1916.

Judge W. H. Stembridge,
Milledgeville, Ga.
DEAR SIR : Replying to your letter of the 1st inst., I beg to advise that, as you state that the old Tax-Collector of the county, Mr. K. P. Hawkins, who died on November 17th last, had been re-elected for the term beginning January 1st next, his death, in my opinion, creates a vacancy in the office necessitating an election to fill the same.
Park's Code of Georgia, Vol. 1, Sec. 1205, prevides that vacancies in the office of Tax-Collectors "are filled as they are in the office of Receiver."
Section 1194 provides that " "" "" "" '"' Vacancies (in the .- !I
484

office of Tax-Receiver) are filled as vacancies for such clerks." Section 4881 to 4886, Vol 4, provide for filling vacancies in
the office of Clerk.
Section 4881 provides that ''If a vacancy occurs *. * * the
Ordinary of the county where it happens shall give notice in one or more of the public gazette"s of said county and at the court house and at three or more of the most public places of said county twenty days previously to the day of election, which shall be appointed by him.''
I think, therefore, that you can call an election to fill the office of Tax-Collector at any time, provided it is called at such a time as that you can give, and do give, at least twenty days' notice before the day of holding such election; treating the vacancy just as though it were an unexpired term.
It is also my opinion that you can advertise for the election now and that you will not have to wait until the appointee's time is out.
With best wishes I am, Very truly yours,
CLIFFORD wALKER,
Attorney-General.
The tax-collector must eompute his commrssrons on the aggregate amount of taxes under the digest furnished him by the tax receiver and the statement furnished him by the ComptrollerGeneral.
December 8, 1916. Mr. C. A. Duggan, Tax-Collector, Oconee County,
Watkinsville, Ga. DEAR SIR : Replying to your letter of the 1st, I beg to advise that the case of Read, Tax-Collector, v. Glynn County will be found on page 60 of Volume 90, No. 1, of the Advance Sheets of the Southeastern Reporter, issued October 28th, 1916. These Advance Sheets of this publication are taken by a great many lawyers in Georgia, and I have no doubt but that you can easily locate it in some good lawyer's office. The fifth headnote of that decision reads as follows :
"Fifth Taxation-Tax-Collector-Compensation. "The compensation of a Tax-Collector is fixed by the Civil Code
485

of 1910, Section 1234, which provides that: 'On all digests for the first one thousand dollars, six per cent.,' and on greater amounts he is allowed by this Section smaller percentages as commissions. This Section does not authorize the collector to treat as a separate and distinct digest from all others the statement or list furnished him .by the Comptroller-General setting forth the names of the public service corporations and amounts of taxes due by them to the county on property owned by them in the county.. Instead of computing full commissions on the statement or list furnished him by the Comptroller-General, the TaxCollector must compute his commissions according to the percentages fixed by Section 1234 of the Code on the aggregate amount of taxes under the digest furnished him by the taxreceiver and the statement or list furnished him by the Comp troller-General."
With best wishes and regards, I am, Very truly yours, CLIFFORD WALKER, Attorney-General.
There is no "failure of the Superior Court" (Section 880 Penal Code) where the judge opens court and grants certain orders, etc. Therefore, the grand and traverse jurors do not hold over until the next term.
December 8, 1916.. JudgeR. Eve,
Tifton, Ga. DEAR Sm: I. have before me your favor of yesterday and hasten to reply as requested. It appears that you have been elected Judge of the newly created Tifton Circuit, your commission dating from January 1st, 1917; that a former Judge at the July Term, 1916, drew grand and traverse juries for the December Term, 1916; that on the 1st Monday in December the Judge of the Court appeared in the County and opened Court, granting certain orders and then adjourned until the 1st Monday in January in 1917; he had previously by proper order given notice that the juries would not be required to appear and serve at said December Term; the new Act creating the Tifton Circuit fixes the first term of the court in Tift County on the 2nd 1\ionday in January, 1917. You ask if there is any legal
486

reason why the grand and traverse juries drawn at the July Term, 1916, could not be used at the regular term of Tift Court to be held on the 2nd Monday in January, 1917.
In my opinion Section 880 of the Penal Code does not apply. This Section reads as follows:
"\Vhenever there shall be a failure of the Superior Court, in consequence of the non-attendance of the Judge, or other cause, the jurors summoned for such court shall stand over to the next succeeding term, in the same manner as suitors and witnesses do."
There was no ''failure of the Superior Court'' at the December Term. The Court was held and for this reason, in my judgment, said Section docs not apply and the jurors summoned for such court will not stand over to the next succeeding term.
It is true that the present Judge could order the jurors so drawn to appear for service at the adjourned term of the court on the 1st l\Ionday in January, 1917, or it may be that he has already done so. A court held at said time by you as presiding Judge with said jurors serving would be entirely legal. However, it appears that on the said 1st l\Ionday in January, 1917, you will be engaged in holding court in the County of Turner. You can not, therefore, hold the court at the time -fixed. That term of the court will expire by limitation and a new 'term will begin on the 2nd Monday in Ja:imary. Having arrived at the conclusion that the jurors drawn for the December Term will not stand over to the new term it occurs to me that Section 8-75 will apply. This Section provides that whenever any session of a court of record from any oause is about to convene and there have been no juries drawn for the same, the Judge shall, in the manner prescribed for d~awing juries at the close of the regular term, draw such juries as may be necessary, and cause them to be summoned. I can appreciate the practical difficulty involved. It is possible that you can draw the jury early l\Ionday morning and I hope that in this manner you may solve the problem.
Very truly yours,
CLIFFORD WALKER,
Attorney-General.
487

The County Tax-Receiver is not entitled to a commission on amounts collected as local tax for public school funds.
December 9, 1916. Mr. G. A. Taylor, 0. S. S. Bacon Oounty,
Alma, Ga. DEAR Sm: Replying to your inquiry of the 4th instant as to whether the Comity Tax-!Wceiver is entitled to a commission on the amount collected as local tax for public school funds I beg to advise that there seems to be no duties imposed on such Receiver by law in relation to such tax and no provision made for the payment to the Receiver of a commission for the collection of such tax. There are duties. imposed on the TaxCollector and the Legislature has made provision for the payment to the Collector of a commission of 21j2 per cent. of amount collected. See Code Section 1538.
Very truly yours, CLIFFORD wALKER, Attorney-GeneraL
There is no provision for an appeal from. the decision of the Secretary of State in county line disputes.
December 13, 1916. Mr. J. S. Daniel, Oottnty Attorney,
. Olaxton, Ga. DEAR Sm: Replying to your letter of the 8th inst;, I beg to advise that the law makes no provision for an appeal from the decision of the Secretary of Sta.te in the case of county line disputes. Our Code (Park's Civil Code of Georgia, Section 476) contains the provision that upon such a decision being made by the Secretary of State, he shall cause the survey and plat to be recorded in a book to be kept for that purpose, whereupon the same shall be final and conclusive as to the boundary line in dispute. No provision whatever is made for any appeal from such a decision.
Very truly yours, CLIFFORD WALKER, Attorney-General.
488

The label or brand must state the truth as to the contents of the

bottle.

December 14, 1916.

Messrs. J. B. Davenpmt & Co.,

Augusta, Ga.

GENTLEMEN: Replying to your letter of the 8th inst., relative

to the matter of the complaint of the Agricultural Department

against you for misbranding an imitation of lemon extract.

You request me to advise yqu "if we change our label instead

of reading Ext. Lemon U. S. P. it shall read Ext. Lemon, con-

taining 84% Alcohol, 3%% Oil Lemon artificially colored, would

this comply with the law.''

As I understand this matter this suggested change would not

comply with the law; that under the ruling of the Department

of Agriculture lemon extract is defined to be the flavoring ex-

tract prepared from oil of lemon, or from lemon peel, or both,

and containing not less than five (5) per cent. by volume of oil

of lem';>n (see Bulletin No. 66, pp. 103-4, item 9 and 9a), and

that the State Chemist's analysis of your product shows it to

be an imitation of lemon extract containing only 2.67% oil of

lemon and colored with tumeric. In order for you to comply

with the law I think it would be necessary for your label, or

brand, to state the truth as to the contents of the bottle.

You also ask me if the ruling of the Department contained in

this same Bulletin, page 65, item 2, covers food products same

as drugs. This ruling seems to have been intended to apply

to drugs alone.

-

Trusting that this is the information desired by you from

me, I am,

Very truly yours,

CLIFFORD wALKER,

Attorney-General.

A Tax-Receiver must give a bond to the county and one to the State. Sections 1195, 1197.
December 18, 1916. Mr. A. S. Rainey,
Ellaville, Ga. DEAR SIR: Replying to your letter of the 6th inst., in- which
489

you ask me if you, as Tax-Receiver, will be required to make bond to county and State, I beg to advise that it is my understanding that you will have to make two separate bonds, one to the county and the other to the Governor, and that all necessary blanks and information will be furnished you. Section 119'7 of the Code, in enumerating your duties, says that it is your duty_ to conform to such rules as you may be furnished with, and to obey such orders as may be given you by the Comptroller-General. Section 1195 states the provisions relative to your oath and bond.
Trusting that this is the information desired by you. Very truly yours, CLIFFORD wALKER, Attorney-General.
The Ordinaries are to receive the first $600 accruing to them for keeping a record of the consignees of liquor shipments, as provided in the Act approved August 19th, 1916, for each year beginning with the date of the approval of the Act.
December 18, 1916. Judge C. M. Wiley,
Macon, Ga. DEAR SIR: Your favor of 14th inst., addressed to Ron. W m. A. Wright, Comptroller-General, in which you ask for a construction of the Act approved August 19th, 1916, so far as the same fixes compensation for Ordinaries, has been referred to me for reply. You raise the question as to the beginning of the year referred to in Section 4 of said Act. This Section provides as follows:
"Each Ordinary shall retain the first $600.00 for each fiscal year from the passage and approval of this Act out of the amount thus paid in to him under the provisions of this Act and etc."
It will be noted that there seems to be conflict in the language of the Act itself. The fis1.ml year for the State of Georgia commences on the first day of January and ends on the thirty-first day of December of each year unless otherwise provided. The Act referred to went into effect upon its approval (August 19th, 1916). Collections were begun at that time and the Ordinaries
490
I
I
I

began to retain compensation for work done by them. The maximum fixed by law for such compensation was $600.00 a year. I am clearly of the opinion that it was the intention of the Legislature, though unfortunately expressed, for the year fixed by this .Act to begin on .August 19th, 1916, and end on .August 18t_h, 1917.
This construction is borne out by several other expressions in the .Act itself, all of which provide that compensation shall be for fiscal year from the passage and approval of this Act. No one will contend that the Legislature intended double pay for the first year's work, and I am satisfied that all parties will agree that under the law a year should begin in .August and end in .August.
Very truly yours,
CLIFFORD wALKER,
.Attorney-General.
Constables and Justices of the Peace are commissioned for a term of four years.
December 19, 1916. Hon. Walter Mathews,
Buchanan, Ga. DEAR SIR: I have before me your favor of 15th instant in which you raise the question whether or not a Constable is a County Officer in contemplation of the .Act of the General .Assembly, approved .August 14th, 1914, amending the Constitution of the State of Georgia by providing for election of County Officers for four years instead of two years, as heretofore. It appears that our courts have not passed upon this question directly. However, in Rose vs. State, 107 Ga., page 697, the Supreme Court practically decided that a Constable is a County . Officer. Judge Little, speaking for the court, says:
"By our law it would seem that a Constable is recognized as a County Officer. Our Constitution, in Article 11, Section 2, Paragraph 1, declares that County Officers shall be elected by the qualified voters of their respective counties or districts, and shall
491

nold office for two years. By Section 35 of the Civil Code it is provided, that unless an otherwise qualified voter shall register
as prescribed, he shall not be permitted to vote in any election
for presidential elector, for members of Congress, or Governor, or State House officers, or members of the General Assembly, or County Officers, or County ComJ?issioners, or Justice of the Peace, for Constables, for members of the County Board of Education, where chosen by the people, nor in any other popular election to fill any other 'State or county office. This Section unmistakably treats a Constable, by express reference, as either a State or County Officer. Section 4192 of the Code prescribes the oath of office. which each Constable must take and subscribe before he enters on the duties of his office, as follows: 'I swear that I will duly and faithfully perform all the duties required of me as a Constable of the county of .......... , according to the best of my ability and understanding.' By other provisions of our Code, we find that the Constable is an officer charged by the
law with the performance of imp~rtant duties, entitled to
emoluments fixed by the Statute, his tenur~ of office prescribed, that he is elected by the people of the county who reside within the district where he is required to exercise the functions of his office, under rules prescribed for the election of other officers of the State, and must take an oath before he can lawfully discharge any of such duties. Certainly, therefore, a Constable is a public officer (Mech on Officers and Offices, Section 9), and it would seem that, both by our Constitution and statute law, recognitio'n to him as a County Officer."
Moreover, public convenience would argue strongly for the interpretation herein made. Practically all of the officers are now elected for a term of four years. If the Constable must be elected for a term of two years only the State would be driven to the expense and worry incident to a State-wide election every four years for Constable alone. I am clear that the Legislature and the people have declared as pubiic policy otherwise and I am therefore advising that Constables as well as Justice of the Peace be commissioned for a full term of four years.
Very truly yours,
w CLIFFORD .ALKER,
Attorney-General.
492

A Justice of the Peace of the militia district in which a municipality is located may preside at a municipal election of such municipality.

Mr. G. 0. Kaigler,

December..29, 1916.

Georgetown, Ga.

DEAR Srn: Replying to your favor of 20th instant in which

you say that at a city election recently held in Georgetown the
managers were a Justice of the Peace residing out of the in-

corporate limits of the city, and two freeholders, there being

no Justice of the Peace residing in the city, but the Justice who

did hold the election had jurisdiction in the militia district in

which Georgetown is located, I beg to advise that in my judg-

ment the election was legal. The law provides that ''such elec-

tions shall be conducted under the management of a Justice of

the Peace and two freeholders who are electors in said town and

not candidates in said election.'' The law further provides that

no election shall be held to be void for technical errors unless

fraud and material harm result. .As stated, if the election was

actually honestly held by the Justice of the Peace it is my

opinion that the election is valid.

Very truly yours,

CLIFFORD wALKER,

.Attorney-General.

A Tax-Collector can not be compelled to pay over money collected by him during any month before the first day of the succeeding month.
December 29, 1916. Charles Emory Smith, Esq.,
Metter, Ga. DEAR Srn: Replying to your favor of 20th inst., I beg to say that the law permits the .Attorney-General to render official opinions only on the request of the Governor. I am pleased, of course, to give you my views on the question submitted, though it will be only personal and not official. The law requires the tax-collector to make monthly statements and settlements. Sections 1213-1216. The Supreme Court
493

has held that mandamus will not lie to compel County Tax Collectors to pay money collected during a certain month to the County Treasurer before the first day of the month succeeding - its collection, or to compel him after that time to pay such money to one whose term of office as. Treasurer hal? expired and whose successor has been elected and qualified. See 107 Ga. 362. I think the moral and right thing to do is for the TaxCollector to pay over to the Treasurer all the funds collected in regular course of business up to the last day of December. It is certainly legal for him to do so if he so desires. You will see that this precedent in other counties would be harmless, as the same rule would apply to the incoming Treasurer at the end of his term. Of course in your county this state of affairs will not exist inasmuch as you have abolished the office, but this
last iwt does not alter the equity of the case, and I always be-
lieve in doing the right thing whomsoever it may help or harm. With kind personal regards, Very truly yours,
CLIFFORD WALKER,
A ttorncy-OPneral.
494

INDEX
A
ABSTRACT TITLES, Clerk of SuperiQr Court may ................. 480 AD}.liNISTRATION, etc., Ordinaries' fees in . . . . . . . . . . . . . . . . . . . . . . . 461 ADMISSION" TO BAR .......................... ........_......... 475 ADULTS, School funds cannot be used for ......................... 175 AGRICULTURAL DEPARTMENT-
Chemical Department of, Appropriation for annual. ............. 147 Live Stock, infected, may compel dipping of ................... 388 ALCOHOLCommon C~rriers, fees of ................................ 457; 460 Druggist may sell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424 Medicine, containing, may be sold ..... ~ . . . . . . . . : . . . . . . . . . . 375; 451 Receipts for, signing, law reasonable .......................... 482 Two Quarts (Acts 1915) could be received ..................... 453 ALIENS, Right to own real estate ...... :. . . . . . . . . . . . . . . . . . . . . . . . . 36 ALTERNATIVE ROAD LAWElection for called when ...................................... 317 Grand Jury may suspend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208 ANTITOXIN, Diphtheria, State Board of Health may purchase. . . . . . . 184 APPRAISEMENT, Estates, Inheritance tax ........................ 442 APPROPRIATIONSApplication for in eighteen months sufficient. . . . . . . . . . . . . . . . . . . . 135 cattle Tick eradication, annual. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Chemical Department, Agricultural Department, annual. ........ 147 Resaca Confederate Cemetery, for, when available............... 87 Schools, for, State Superintendent cannot anticipate misuse of.. . . 166 Treasurer must have before payment ..................... 304; 402 ASSESSMENT, Property, for tax purposes ........................ 437 ASSESSORS, County Board of should assess unreturned property. . . 385 ASYLUM, Insane, State Superintendent of must receive insane person 428 ATTORNEYS, Factory employees, violation of ten hour law, can re-
cover compensation for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 AUGUSTA-
Fire Department, retirement of ............................... 225 Municipal Court, election for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464 AUCTION SALES, Series, Auctioneer, and subject to license ......... 302
495

.AUTmiOBILESChauffeur's license unnecessary for friend, etc.. . . . . . . . . . . . . 390; 443 Fund, Error in mileage, may be corrected. . . . . . . . . . . . . . . . . . . . . . 115 Municipality may regulate ................................... 270 Purchaser must register. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Reckless driving of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 Tax: County Treasurer handles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Municipality subject to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

B

B.AHSON, Peter F., et al., v. Elwell, et al.. ..................... . 8

BALMER, J. S., et al., v. Mayor, etc., of Savannah, etc.............. . 7

BANKS-

i

Branch, cannot be State depository ........................... . 204

-~

Examiner cannot compel solvent bank to pay certificate of deposit 143

Failure to qualify as State depository ........................ . 88

Impairment of capital stock must be made good . . . . . . . . . . . . . . . . . 141

National, occupation tax, municipality cannot collect ........... . 329

Officer : Commissions on loans, may charge .................... . 480

Loans to ............................................. . 139

Private, not subject to examination . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

Solvency question, examiner should preserve present status ..... . 136

Solvent, State examiner cannot compel payment of certificate of

deposit ............................................... . 143

State depository, bond of, for what time ...................... . 90

B.AR, .Admission to ..... ............................... 475

BARBERsExaminers, Funds of Board not State funds .................. . 142 Regulation of in cities of less than five thousand ............... . 221

BENZINE, for use, subject to inspection ......................... . 152

REQUEST to executor less than commissions not subject to Inheri tance tax ............................................. . 127
BIBLES and books, no tax on selling ........................ ..... . 282

BICYCLES, Tax on dealers in ................................... . 471

BILL OF EXCEPTIONS, Clerk of Superior Court, costs in ......... . 392

BOARDBarber Examiners, funds not State funds ..................... . 142 Education, State, member of temporarily absent entitled to salary 33 Health, State, may purchase diphtheria antitoxin .............. . 184

BONDSAppearance, Citizens may give ............................... . 208 Criminal, forfeited, garnishment may issue on ................. . 344 Lost, Duplication of...................... , ................. . 338 Lowndffi County, Treasurer of, payable to whom ............... . 37

496

Municipal, cannot be .tax ..................................... 206 School buildings, for, Act constitutional. . . . . . . . . . . . . . . . . . . . . . . 78
District in County on county-wide plan ................... 470 Tax-Collector, Governor's supervision of. . . . . . . . . . . . . . . . . . . . . . . 70 BOTTLER, Soft drink, Municipality, license of non-resident ......... 411 BUFORD, City of, may collect street tax on minors ...... , ......... 271 BUILDINGS, of Georgia Industrial School for Colored Youths..... . 30 BURIAL GROUND, Bequest for, Inheritance Tax, subject to ......... 433 BUSINESS, "Carrying on," defined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442 BUZZARDS, Killing illegal ..................................... 199
BYRD, C. P., v. Cook, et al...................................... 19
c
CAMPAIGN 'EXPENSESCandidates for Congress ..................... : . . . . . . . . . . . . . . . . 422 County officers must file ................................ .". . . . . 336
CANDIDATES, Congress,' campaign expenses of. . . . . . . . . . . . . . . . . . . . 422
CAPITALCases in the Supreme Court................................... 25 Felonies, Governor's power as to rewards....................... 61
CAPITOLDefacement of, law relative to void. . . . . . . . . . . . . . . . . . . . . . . . . . . . 360 Insurance of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Employees, Governor appoints and controls. . . . . . . . . . . . . . . . . . . . 62
CARRIERS, COMMONAlcohol, fees in ........................................ 457; 460 Prohibition Act, 1915, violation of ............................ 463
"CARRYING ON BUSINESS" defined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442 CARTRIDGES, Pistol, License tax on ............................. 265 CATTLE TICK-
Appropriation for, annual. ................... :. . . . . . . . . . . . . . . 137 State may eradicate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401 CERTIFICATE OF DEPOSIT, Bank solvent, Examiner cannot com-
pel payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
CHARITY, Legacy to, Subject to inheritance tax ................... 127
CHARTER, Private corporation, expires in thirty years ............ 451 CHAUFFEUR, MOTOR-VEHICLE-
Incidental to employment, must have license. . . . . . . . . . . . . . . . . . . 390 License not necessary for friend, etc.. . . . . . . . . . . . . . . . . . . . . . . . . . 390 Must procure license. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390 CHECKS, Drawing, etc., without funds ............................ 226 CHEMICAL DEPARTMENT, Appropriation to, annual. ............ 147
497

CHURCHProperty bearing. income taxable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305 School, using, illegal ......... , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
CIDER, Intoxicating, Sale of illegal. ............................. 431

CIGARETTESConfederate Soldier may sell ................................. 472 Dealers in, Municipality may tax ........................ 415; 468 State tax on ............................................... 244
CITIZEN, Unregistered, may' hold county office ..................... 320

CITIZENSHIP-

Absence, long, may be lost ............................... , . . . . 334 Citizen may work in another county ........................... 304 Determined by intention and presence. . . . . . . . . . . . . . . 276; 295; 417

Convict, how restored. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

CITY COURTQuitman, Criminal cases in ................. ,,,, . , !14: Judge, Solicitor-General, may be elected ....................... 449 Solicitor; Ineligible for General Assembly ..' .................. 359 State officer .................................. 231; 324; 340

CLERKHouse of Representatives, May be R. R. Commissioner, how. . . . . 93 Optometry, Practitioner, Registry, fee of. ..................... 448 Superior Court: Abstract titles, may prepare.................. 480

Bill of Exceptions, costs in .. : . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392

Deed, improperly witnessed, not record ............., ....... 348

Duty when Ordinary resigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258

Law, cannot practice.. . . . . . . . . . . . . . . . . . . . . . . . . . .

480

Wild land, may deal in. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380

CONDITIONAL PARDON, Governor can grant ............. ....... 179

COLLECTIONS; Agent for, anyone may be, unless necessary to go

into court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

COMMERCIAL CORPORATION, Occupation tax, must pay ......... 209

COMMERCE AND LABORCommissioner of, Not required to bring suit for violations of ten hour labor factory law .............................. 174 Not to use funds for attorneys fees for violations ten hour labor factory law ................................. :. 174 Department of, may procure and use pictures. . . . . . . . . . . . . . . . . . 177

COMMISSIONERS, COUNTYOverseer, May compel to do duty ............................. 448
Streets, cannot work without consent ......................... 272 Terms of ................. . ', . . . . . . . . . . . . . . . . . . . . . . . 362 ; 372

COMMISSIONSOn commissions, Treasurer cannot collect ...................... 483

498

Tax-Collectors ........................................ 330; 474 Forfeiture of ........................................... 408
Treasurer; Cannot collect, on commissions. . . . . . . . . . . . . . . . . . . . 483 On money handled only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
COMMON CARRIERSAlcohol, fees of .................................... : .. : . 457; 460 Prohibition, Acts 1915, violation of. .......................... 463
CONFEDERATE SOLDIERSCigarettes: Tax on, must pay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 ~lay sell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472 Peddle, may ................................................ 281 Plumbing business, may carry on. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
CONGRESS, Candidates for, campaign expenses of. . . . . . . . . . . . . . . . . . 422
COOK, et al., v. C. P. Byrd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
COOK, SECRETARY OF STATE, v. Morrison, W. J., et al.. . . . . . . . . 15 v. Sumter County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CONTINGENT FUND, Available for special services in Governor's office ............................. -................ 58
CONSTABLESCounty officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477 Terms of office of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 491
CONSTITUTIONALITY, County Treasurer, Act abolishing office..... 50
CONVICTCitizenship, restored how. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Poll tax, pardoned, must pay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330 Taxes, must pay ..................................... . . . . . . 442
CORONER'S INQUEST, held when ................. ; ............. 300
COSTS, Clerk Superior Court, Bill of Exceptions ................... 392
CORPORATIONSPrivate: Charter expires in thirty yearR ..................... 451 General Assembly, Amendment by, void .................. 469 Cannot create . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 School tax counties, notice not required. . . . . . . . . . . . . . . . . . . . . . . 425
COUNTYAutomobile tax, must pay............................. , . . . . . . 327 Board: Health, Physician, grand jury elect. . . . . . . . . . . . . . . . . . . . 377 Tax-Assessor, member of, cannot hold other office. . . . . . . . . . . . 328 Bonds, Insurance Commissioner may accept ............. -. . . . . . . 125 Commissioners: General Assembly may name. . . . . . . . . . . . . . . . . . . 409 Tax-Collector, may suspend ............................... 408 'Terms of .......................... : .. ............. 362; 372 Terms of, General Assembly may fix. . . . . . . . . . . . . . . . . . . . . . 409 Condemnation power for road purposes. . . . . . . . . . . . . . . . . . . . . . . . 218 Debt, above annual income ................................... .438
499

~.
Deed to, does not revert on failure to build on land ............. 331 Funds, no provision for disposition of. ........................ 294 Liability for expenses for fugitive from justice................ 96 Line: Dispute; Grand jury, sufficiency of order of. . . . . . . . . . . . . . 32
Secretary of State's decision final. . . . . . . . . . . . . . . . . . . . . . . . . 488 Surveyor removed how . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Liquor licenses, must pay for publication of. . . . . . . . . . . . . . . . . . . 434 Officers: Campaign expenses, must file ......................-... 336 Citizen, unregistered, can be .............................. 320 Constables are ......................................... 477 Election; Plurality of votes elect .......................... 475
Primary, executive committee may fix rules for ......... 450 Residence of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334 Terms of, begin when. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432 Orders, General Assembly may regulate issuance of ............. 252 Taxation, for school purposes, election for ...................... 376 Taxes, indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . 438 Treasurer: Automobile tax, handles........................... llO Constitutional office, is not ............................... 239 Constitutionality Act abolishing office. . . . . . . . . . . . . . . . . . . . . 50 Office may be abolished . . . . . . . . . . . . . . . . . . . .'. . . . . . . . . . . . . . 224 Vacancy in, Ordinary fills................................ 28 Schools: Superintendent: Funds in insolvent bank not liable for .. 161 Nominated at any time .................................. 155 Surveyor, Vacancy filled how. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 . -Warrants: County bankrupt, mandamus not lie against Treasurer 438 Treasurer must pay ...................................... 341 Undated, due whell'.. : . ............ ; ..................... 438
COURT HOUSE, Voting at illegal, no election held there ............ 156
CRIMINALSApprehension of, Governor may offer reward ................... 400 Bond forfeited, garnishment may issue........................ 344 Fugitive, non-resident, sheriff not compelled to go after ......... 462
CRUDE OIL, Subject to inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
D
DAJ\fS, etc., illegal, game wardens may break .........._............ 195
DEBTCounty: Above annual income. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438 Giving note for ....................................... 247 How incurred : ; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 How paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 Tax levy to pay .................................... 238 Teachers,_ executive warrant for pay of, is not. . . . . . . . . . . . . . . . . . . 98
500

DEEDSDrawing, lawyer only authorized to charge for ................. 296 ~ecurity, foreclosure of advertised where ...................... 352 To county, does not revert on failure to build on land . . . . . . . . . . . . 331 Witnesse!l improperly, clerk should not record .................. 348
DEPOSITORY, State, branch bank cannot be .............. : . . . . . . . . 204 DEPOSITORIES, State, Governor names. . . . . . . . . . . . . . . . . . . . . . . . . . 134 DEFACEMENT, Capitol, law relative to void ....................... 360 DEFAULTERS, Tax: Assessment, service of notice on. . . . . . . . . . . . . 385
Definition of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361 DIPHTHERIA, Antitoxin, State Board of Heal~h may purchase. . . . . . 184 DEPUTY-SHERIFF, County Board of Education, may be member of 419 DETECTIVES, Governor cannot employ. . . . . . . . . . . . . . . . . . . . . . 400; 465 DOGS-
Domestic animal, taxable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405 Sheep-killing, may be killed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 DOMESTIC CORPORATION, Stock in, Owned by deceased non-resi-
dent, subject to inheritance tax ...................... US DIPPING, Infected live stock, may be compelled. . . . . . . . . . . . . . . . . . . . 388 DISBARMENT PROCEEDINGS, Witness fees in . . . . . . . . . . . . . . . . . . . 211 DOUGLASVILLE, Street work, authority relative to ............... 213 DISTRICT SCHOOL, Unconstitutional, not entitled to funds ........ 172 DUCKTOWN, Sulphur, Copper & Iron Co. v. State.................. 5
E
EAST LAKEAtlanta Athletic Club, cannot collect taxes from. . . . . . . . . . . . . . . . 436 School system of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
EDUCATIONCounty Board: Controls schools, etc.. . . . . . . . . . . . . . . . . . . . . . . . . . 236 Deputy Sheriff may be member of ......................... 419 Justice of Peace cannot be member of. .................... 477 May build school houses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 Premuim on bond of Superintendent may pay . . . . . . . . . . . . . . . 351 Resident. local district member of cannot be. . . . . . . . . . . . . . . . 337 School trustee, member of, cannot be. . . . . . . . . . . . . . . . . . . . . . . 263 Legacy to, subject to inheritance tax. . . . . . . . . . . . . . . . . . . . . . . . . . 127 State Board, member of, temporarily absent entitled to salary. . . 33 Taxation for, countywide plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
ELECTIONSClosing, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 340 County officer, by plurality of votes ........................... 475 Illegal, persons voting at court house, no election being held there 156
501

Irregularities in, not necessarily void ........................ 357 Justice of the Peace; Managers of, pay of. ................... 484
Tie vote, void ......................................... 94 Managers: Kinsman of candidate will not void .............. : . . 348
Primary, qualification of ................................. 410 Qualification of ................................... ; . . . 406 Municipal, Justice of Peace may manage ....................... 493 National, Tickets should be counted . . . . . . . . . . . . . . . . . . . . . . . . . . . 473 No fence, publication of notice .. : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382 Ordinaries' fees in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474 Primary, Executive committee may fix rules for ...._............ 450 Precinct in new militia district, how established. . . . . . . . . . . . . . . . 80 Protest, must be filed before twelve o'clock ..................... 357 Registration books open, last registration list used .............. 316 Registrars, Managers, l.ist must be furnished. . . . . . . . . . . . . . . . . . . 433 Taxation, for school purposes, county-wide plan, who can vote in 384 School Tax: Portion of district cannot hold ................... 412 When it goes into effect ................................. 414 "Single-shot" voting will not void ............................ 348 Special, Member of General Assembly, at same time as primary
election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346 Stock law, who can vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 Tickets for, Governor does not furnish .......................... 467 Voter; must vote in own precinct if open. . . . . . . . . . . . . . . . . . . . . . . 337
Who is qualified ... : ........... : . . . . . . . . . . . . . . . . . . . . . . . 396

ELECTOR, Presidential, Justice of the Peace cannot be ............. 355

ELWELL, J. B., et al., v. Peter F. Bahnson, et al.. . . . . . . . . . . . . . . . . 8

EM.AJ\'DEL COUNTY, Commissioners of, lay out militia districts. . . . . 350

ENTOMOLOGY, State Board of, no provision for pay oL ........... 202

ESTATES, Appraisement of, inheritance tax ..................... .. 443

EXAMINER, Bank, should preserve present status of bank where solvency being investigated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

. EXECUTIVE WARRANT for payment of school teachers constitutional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

. EXEMPTIONS-

Inheritance tax

441

Applies to those mentioned in Act only. . . . . . . . . . . . . . . . . . 389

Road duty, National guard ......... - ........................ 399

Tax: Confederate veteran, etc., for grocery store, etc............ 314

Blind person, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220; 227

EXPERIENCE, Five years in supervision of school explained ......... 158

F
FACTORY EMPLOYEES-
Not limited to ten days in making up lost time .............. 174

502

Violation ten hour Jaw: Attorneys can recover fees ............ 174 Enforcement of ......................................... 174 Remedy civil suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 Suit brought by any person ............................ ~. 174
FALSE PRETENSE, Obtaining goods by, sufficiency of requisition.. . 56 FARM CORPORATION, Occupation tax .................. ~ ...... 216 FEDERAL EMPLOYEES, Insurance company for fraternal order .... 134 FARMERS MUTUAL INS. Co. v. Wright Ins. Com................. 18
FEESInspection of oil, possessor subject to ......................... 151 Ordinaries: Administration, etc............ : .................. 461 Intoxicating liquors .......................... 366; 371; 394 Liquor shipments .<. .. 490 Pension rolls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407 Public officials, statements must be made ...................... 327 Solicitor-General: Court of Appeals and Supreme Court. . . . . . . . 83 Court of Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Witness, in disbarment proceedings ........................... 211.
FERTILIZER, "High grade" defined ........... :.: ............... 1411 -FINGERS, Road duty, maimed person subject to ................... 465 "FIVE YEARS EXPERIENCE in actual supervision of schools"
explained .. -............... : . . . . . . . . . . . . . . . . . . . . . . . . 158
FISHBeyond three mile-limit, State formerly had no jurisdiction ..... 195 Game and Fish Commissioner cannot suspend laws. . . . . . . . . . . . . . 192 Poison, running stream, criminal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
FOREIGN CONSULS, Motor-vehicles, must pay license tax on .... :. 64 "FREEHOLDER" defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 FRATERNAL ORDER, Insurance company for federal employees is.; 134
FUGITIVE FROM JUSTICEExpenses of returning, payable how. . . . . . . . . . . . . . . . . . . . . . . . . . . 232
- Non-resident, sheriff not compelled to go after .................. 462 When county liable for expenses for. . . . . . . . . . . . . . . . . . . . . . . . . . . 96
FUNDS, School, misuse of should be prevented by State Superintendent of Schools if within his knowledge. . . . . . . . . . . . . . . . . . . 116
G
GAME AND FISH COMMISSIONER, Cannot suspend 612 of Criminal Code ................................... ; . . 192
GAME WARDENS, Terms of office expires when ........... :.. .... 193 GARNISHMENT-
Issued on forfeited criminal bond. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
503

Laborers . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . 456 Sunday not counted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339

GASOLINE, for use, subject to inspection. . . . . . . . . . . . . . . . . . . . . . . . . 152

GENERAL ASSEMBLYCannot create private corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Corporations, Private, charter amendment void ............... . 469 County Commissioners, may name and fix term of office . . . . . . . , . 409 Has no power to relieve citizen from taxation ................. . 82 Solicitor City Court ineligible for ............................ . 359 Statutory office, may abolish . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

GEOLOGIST, State, may make exhibits .......................... . 200

GEORGIA INDUSTRIAL SCHOOL for colored youths, buildings, insurance on ...................................... . 30

GEORGIA R. R. & Banking Co. v. Wright, Comp.-Gen.............. . 10

GEORGIA R. R. & Power Co.-

v. State .................................................. . 21

v. Wright, Comp.-Gen.

10

GOVERNORCannot send specialist to lunacy trial. . . . . . . . . . . . . . . . . . . . . . . . . . 51 Conditional pardons, can grant ............................... 179 Controls employees of Capitol-Building........................ 62 Detectives, cannot employ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400; 465 Farm buildings, State, must insure . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 Office of, special services in, payable from contingent fund. . . . . . . 58 Parole Law, iimiting power of to pardon, unconstitutional.. . . . . . 181 Power: Paroles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Reprieves and pardons, to grant. . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Rewards, in capital felonies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Where bank fails to qualify as State depository .. :.. . . . . . . . . 88 public officer, unfaithful, cannot suspend. . . . . . . . . . . . . . . . . . . . . . 395 Tax Collector's bond, supervision of. . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Tickets for election, not to furnish. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467

GRAND JURYMember of may be Tax Assessor. . . . . . . . . . . . . . . . . ... . . . . . . . . . . 243 No "Failure of court," do not hold over . . . . . . . . . . . . . . . . . . . . . . . . 486 Not compelled to complete Board of Health ..................... 185 Sufficiency of order in county line dispute. . . . . . . . . . . . . . . . . . . . . . 32

GRANGER, Harvey, et al. v. Mayor, etc., of Savannah. . . . . . . . . . . . . . 7

H
HALL of House of Representatives, use of ....... , . . . . . . . . . . . . . . . . . 91 HAMILTON, Sheriff, v. Kitehene................................. 17 HARALSON, Commissioners, Act constitutional. .................. 481 HARNESS OIL, etc., Peddler of must pay license tax ............... 347
504

HART COUNTY, Commissioners of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435

HEALTH-

And sanitation, city may regulate ..................., .......... 366

Board: Grand jury not compelled to complete. . . . . . . . . . . . . . . . . 185

Not complete majority act ...................... :. . . . . . . . 185

Organization, etc. . ..................................... 230

Physician, elected by grand jury. . . . . . . . . . . . . . . . . . . . . . . . . . 377

Laws: Adovted, county must appoint Health Officer. . . . . . . . . . . . . 185

1914, constitutional ................. : . .................. 481

State Board of: May publish facts relative to injurfous medi-

cines, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

May purchase diphtheria antitoxin. . . . . . . . . . . . . . . .

184

HEIMER v. State .................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

"HIGH GRADE" Fertilizer defined ............................... 149

HOLC01fBE, in re. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

HOMESTEAD, Constitutional and statutory, advertisement of. . . . . . . 264

"HOP ALE," Law governing sale of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349

HOTEL, Protection of, not apply to sanitarium .................... 269

HOUSEBill No. 756 unconstitutional. ............................... 416 Representatives, of, Hall, use of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

IMPAIRMENT OF CAPITAL STOCK of bank, must be made good ... 141
INDEBTEDNESS, County, Tax levy to pay. . . . . . . . . . . . . . . . . . . . . . . 438
INDIAN SPRINGS, Reserve, Lease of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
INHERITANCE TAXApplies to all property. . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . 127 Appraisement under . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 Bequest, subject to. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415 Burial Ground, Bequest for, subject to ......................... 453 Charity, Education, and Religion, legacies to, subject . . . . . . . . . . . 127 Debts; applies on property beyond ........................... 249 Domestic corporation, stock in, owned by deceased non-resident, subject to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Executor, Bequest to, less than commission, not subject. ..... 127 Exemptions: Appli-es to those mentioned in Act only. . . . . . . . . . . . 389 Specified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441 Life estate, physical condition of owner considered. . . . . . . . . . . . . 326 Market value, property must be assessed at. . . . . . . . . . . . . . . . . . . . 283 Municipal bonds, subject to .................................. 127 Property outside of State not subject to. . . . . . . . . . . . . . . . . . . . . . . . 441
INTERNAL REVENUE COLLECTOR, Intoxicating liquor, list of, not to furnish ............................... . . . . . . . . . . 371
505

INSANE PERSON, State Sanitarium Superintendent must receive ... 424
INSPECTION FEES, Oil, possessor of, subject to ................... 151
INSURANCECapitol Building . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Commissioner: County and ~Iunicipal bonds, may accept. . . . . . . . 125 Illegal company, may withhold license from ............... , 123 Company, Federal employees, fraternal order. . . . . . . . . . . . . . . . . . . 124 Georgia. Industrial School for Colored Youths, Buildings. . . . . . . . 30 Policy, Companies difl'erent, not interchangeable. . . . . . . . . . . . . . . . II7 State Farm building, Governor must carry on .................. 178
INTOXICATING LIQUORSContraband, may be destroyed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365 Index to receipts, Ordinaries not required to keep. . . . . . . . . . . . . . . 3GG Internal Rev:enue Collector, not' to furnish list of . . . . . . . . . . . . . . . 371 Ordinaries fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366; 371; 394 Sale of prohibited .................... .'. . . . . . . . . . . . . . . . . 323; 432 Search \Varrant for, City marshal may secure .................. 370 Sheriffs fees, Ordinaries not responsible for. . . . . . . . . . . . . . . . . . . . . 366 Statements of; No specific form required ....................... 366 Ordinaries must demand. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366 Transportation companies, furnishing statements of. . . . . . . . . . . . 369 Undelivered, may be returned. . . . . . . . . . . . . . . . . . . . . . . . . . . . 380; 388
!~REGULARITIES, Election, not necessarily void. . . . . . . . . . . . . . . . . . 357
ITINERAKT DOCTORS, etc., License tax on. . . . . . . . . . . . . . . . . . . . . . . 350
J
JUDGECannot suspend sentence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 City Court, Solicitor General, may be elected. . . . . . . . . . . . . . . . . . . 449 Superior Court, exchange service, State not liable for expenses. . 69
JUSTICE COURTSDefendants in, must be in district. . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 Place of holding, how changed. . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . 459 Judgments in void unless in court room ........................ 307
JUSTICE OF THE PEACEBoard of Education, member of, cannot be . . . . . . . . . . . . . . . . . . . . . . 477 Election: Etc., Managers, pay of........... :. . . . . . . . . . . . . . . . . 48' Tie vote, void. . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . 94 Fi. Fas., may iBeue ..................................... 29.'> Manager of election may be elected...... . . . . . . . . . . . . . . . . . . . . . 95 Municipal election, may manage ............................... 493 New militia district, hold how.................... . . . . . . . . . . . SO Postmaster, cannot be ................................... 302 Presidential e!Pctor, cannot be . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
506

Summons, failure to obey, may punish for contempt. . . . . . . . . . . . 458 Terms of office of ............................................ 491 JUVENILE COURT, State Reformatory may commit to ............ 403
K
KITCHENS v. Hamilton, Sheriff................................. 17
L.
LABELImitation or duplicate not recorded. . . . . . . . . . . . . . . . . . . . . . . . . . . 116 Or brand, must state truth. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489
LABORERS, Garnishment of . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . 456 LAW, Practice, Clerk of Superior Court cannot. . . . . . . . . . . . . . . . . . . 480 LEASE, of Indian Springs Reserve. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 LEGACIES, Charity, etc., subject to inheritance tax. . . . . . . . . . . . . . . . 127 LEGISLATURE-
Member of, special election at same time of primary election. . . . 346 Solicitor City Court, not eligible for. . . . . . . . . . . . . . . . . . . . . . . . . . 359 LIBRARIAN, State, may investigate character of notaries public. . . . 203 LICENSEIllegal Insurance company, Commissioner may withhold ........ 123 Liquor, County must publish. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434 Motor Vehicles, Chauffeur, when necessary to procure ........... 390 Tax: Automobile, purchaser must procure ...................... 368
Motor vehicles, foreign consuls must pay on. . . . . . . . . . . . . . . 64 LIEN, Automobile, for work done ......................... ....... 281 LIFE ESTATE, Owner of, physical condition may be considered in
inheritance tax on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326 LIQUOR-
Intoxicating, sale of prohibited. . . . . . . . . . . . . . . . . . . . . . . . . . 323; 432 Possession of, Acts 1915 .......... . . . . . . . . . . . . . . . . . . . . . . . . . . . 335 Prohibited defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333 Quantity of, Law of 1915 .................................... 375 Reshipment to original consignor. . . . . . . . . . . . . . . . . . . . . . . . . 380; 388 Shipments, Ordinaries, fees of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490 LIVE STOCKInfected, Agricultural Department may compel dipping. . . . . . . . . 388 Municipality may sell in no fence county. . . . . . . . . . . . . . . . . . . . . 387 LOAN AND TRUST COMPANY, Secretary of State has jurisdiction of 113 LOCAL SCHOOL TAX, incorporated town, within............... 221 LOUISVIJ:LE & NASHVILLE R. R. CO v. State ................... 13 LOWNDES COUNTY, Treasurer of, bond payable to whom. . . . . . . . . . 37
507

LUNACY TRIAL, Governor cannot send specialist to............... 51

M

l\IACOK TERMINAL COl\IPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

MAILS, State has no control of .................................. 467

MALT LIQUORS, Sale of prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432

MANAGERS-ELECTIONS-

Justice of Peace, etc., pay of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4S4

Kinsman of candidate, not void ............................... 34S

Qualification of; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406

In primary

410

MANDAMUSMunicipality, to collect tax. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459 Treasurer, cannot be when no funds to pay county warrants ..... 43S

MANSLAUGHTER CASES, Solicitor General, fees in.............. 95 MARRIAGE, by minister without authority, valid ................. 397

MEDICIN~
Alcohol, containing, may be sold ......................... 375; 451 Injurious, State Board of Health may publish facts. . . . . . . . . . . . 1S7 Practice of, who subject to regulation of. . . . . . . . . . . . . . . . . . . . . . . 260
MILITIA DISTRICTSLaying off illegal, void ...................................... 430 New: Election precinct, how established....................... SO Justice of the Peace, how elected.......................... SO
MINISTER, Marriage by, without authority, valid ................ 397

MORRISON, W. J., et a!., v. Cook, Secy. of State.................. 15

MOTOR-CYCLES, Special tax, subject to. . . . . . . . . . . . . . . . . . . . . . . . . . 242

MOTOR VEHICLESBicycle, motor attached. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Chauffeur: Incidental to employment, must be licensed. . . . . . . . . 390 Friend, license unnecessary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390 License, must be procured.. .. . .. .. .. .. .. . . . .. . .. . .. .. .. .. 390 License tax on, foreign consul must pay. . . . . . . . . . . . . . . . . . . . . . . . 64
MUNICIPAL CORPORATIONSAutomobile tax, liable for ....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Bonds of: Cannot be taxed ................ ~ . . . . . . . . . . . . . . . . . 206 Inheritance tax, subject to. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Insurance commissioner may accept. . . . . . . . . . . . . . . . . . . . . . . 125 Bottler, soft drink, non-resident, license of. . . . . . . . . . . . . . . . . . . . 411 Cigarettes, dealer in, may tax. . . . . . . . . . . . . . . . . . . . . . . . . . . 415; 46S Election in, Justice of the Peace may manage .................. 493 Health and sanitation, may regulate .......................... 366 Limits, Act extending jurisdiction beyond unconstitutional.. . . . . 52

508

Live-stock, may sell in no fence county . . . . . . . . . . . . . . . . . . . . . . . . 387 National banks, occupation tax from, cannot collect. . . . . . . . . . . . 329 Occupation tax: May levy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468
National banks, cannot collect from ...................... 329 Railroads, cannot collect from. . . . . . . . . . . . . . . . . . . . . . . . . . . 323 State licensee, may collect from ................ .".... 463; 468 Telephone companies, may collect from. . . . . . . . . . . . . . . . . . . 325 Pool rooms, may tax ........................................ 416 Police officer of, jurisdiction to arrest ......................... 212 Professions, cannot tax. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 Railroads, occupation tax, cannot collect from ................. 323 School buildings, may rent ..................... ; . . . . . . . . . . . . 404 Street tax, minors, may collect from .............. .'. . . . . . . . . . . . 451 Tax, mandamus to collect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459 Teachers, school, tax on. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 Telephone companies, occupation tax from, may collect. . . . . . . . . . 325 Water and light service discontinued citizens without recourse .. 446 Woman suffrage, provision for i'n charter void. . . . . . . . . . . . . . . . . . 55 MURRAY COUNTY, Commissioners of ............................ 420
N
N APTHA, Inspection of, when for use . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 NATIONAL-
Banks, occupation tax from, municipality cannot collect ........ 329 Guard, Road duty, exempt from. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399 NAVIGATION COMPANY, Railroad Commission controls ........ 111
NEAR BEERLicense, tax paid, must be issued 309 00 00 00 . . . . . . . . . . . . 00 . . . . . . . . Prohibition Law of 1915..................................... 71
NO FENCE ELECTION, Publication of notice. . . . . . . . . . . . . . . . . . . . . 382 NOTARIES PUBLIC-
Commercial: Character of, State Librarianmay investigate ...... 203 Election, may hold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
Oaths, may administer, and attest deeds ...................... 296 NOTES AND LOAN DEEDS, Non-resident owner of, not taxable .... 288
0
OCCUPATION TAXCommercial corporation must pay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 Farm corporation .......................................... 216 Municipality may levy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468 National Bank, municipality cannot collect from ............... 329 Railroads, municipality cannot collect from. . . . . . . . . . . . . . . . . . . 323
509

State licensee, municipality can collect from. . . . . . . . . . . . . . 463; 46S: Telephone companies, municipality can. collect from .............. 325
OFFICERS-
Bank, and directors, of, loans to. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
County: Election of, by plurality of votes ..................... 475 Statutory, except Ordinaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Municipal police, jurisdiction to arrest ........................ 212 Public, unfaithful, Governor cannot suspend ................... 395
OFFICIALBonds for State and County officers, Chapter 3 of Code relates to 64 Organ, defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382.
OFFICEConstables and Justices of the Peace, terms of . . . . . . . . . . . . . . . . . . 491 County, unregistered citizen may hold ......................... 320 Removal of holder not necessarily vacate ...................... 257 Statutory, General Assembly may abolish ...................... 257
OILCrude, subject to inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Inspection fees, possessor of, subject to...... . . . . . . . . . . . . . . . . . . 151 Signal, subject to inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
OPTHALMOLOGY, Practice of ............................~ . . . . . . 446
OPTOMETRY, f'ractitioner of: Must register and pay Clerk's fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 448 \Vho is . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450
ORDINARIESFees of: Administration, etc., of estates ........................ 461 Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474 Guardianship, etc. . .................................... 313 Intoxicating liquors ...................... 336; 371; 394; 491 Pensions rolls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407 School election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 'Vays, private, opening.................................. 429 Intoxicating liquors: Fees in . . . . . . . . . . . . . . . . . . . 366; 371; 394; 491 Index of not required .................................... 366 Sheriff's fees, not responsible for ........................ 366 Shipments, payments to State Treasurer. . . . . . . . . . . . . . . . . 445 Statements of, must demand.: ............................ 366 Office of: Constitutional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 Vacanacy in, how filled. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258; 482 Treasurer's office, vacancy in, fills. . . . . . . . . . . . . . . . . . . . . . . . . . 28
OVERSEER, Commissioners may compel to do duty . . . . . . . . . . . . ,. . . . 448
p
PARDONSGovernor's power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
510

Conditional: ............................... ; . . . . . . . . . . . 68 Can grant ..... : ................................... 179

PAROLES-
Governor: Pardoning Power, law limiting unconstitutional.. 181 Pow~r ..................................... :. . ... . . . . . 68

PEDDLE, Confederate veteran may . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281

PEDDLER, Harness oil, etc., must pay license tax

347

PENSIONSDeath outside State pension payable how . . . . . . . . . . . . . . . . . . . 44 Rolls, Ordinary's fees ........................ ; . . . . . . . . . . . . 407

PHRENOLOGIST, No state tax on . : ........................... 261

PLANTATION, on line of counties, taxes paid where improvements are ............................................. 305

POISON, Fish, running stream, criminal . . . . . . . . . . . . . . . . . . . . . . . . 401

POLL TAXConvict, pardoned, must pay ............................... 330 Voters, allnot necessarily pay .............................. 322

POOL ROOMSMunicipality may tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 Not forbidden in cities, etc.... ............................. 319
POLICE, Jurisdiction to arrest ................................. 212
POSTMASTER, Justice of the Peace cannot be ................. 302
PRESBYTERIAN CHURCH, Independent, charter amendment void .............. : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469

PRESIDENTIAL ELECTOR, Justice of the Peace cannot be . . . . 355 PRIMARY ELECTION, Executive Committee may fix rules for. . . . 450 PRISON COMlVi:ISSION, Parole prisoner, may, expiration of
minimum sentence .................................... 183

PRIVATEBanks, examination, not subject to ......................... 138 Corporation, General Assembly cannot create . . . . . . . . . . . . . . 48
PROFESSIONSMunicipality cannot tax .................................... 315 State may prescribe regulations for ........ : .............. .- .237

PROHIBITIONAct, 1915 ..................................... , . . . . . . . . . . . . 361 Common carrier, violation of. . . . . . . . . . . . . . . . . . . . . . . . . . . . 463 Consignee, slight error in name, shipment delivered ...... 472 Near beer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Possession of liquor ............ ; . . . . . . . . . . . . . . . . . . . . . . 335 Quantity of liquors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375 Liquors enumerated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323; 432
PROPERTY, All subject to inh_eritance tax ...................... 127

511

PROTEST, Election, must be filed before twelve o'clock

357

PUBLIC-

Gazette, defined .................................... , . . 382

Official: Fees of, Statement of; Must make . . . . . . . . . . . . . . . . . 327 Citizen may inspect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
Unfaithful, Governor can not suspend ......... .'. . . . . . . . . 395

PUNCH BOARD, Unlawful .............................. 450

PURE FOOD FUNDS, State funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

Q

QUITMAN, City Court of, Criminal cases in . .-... . . . . . . . . . . . . . . . 214

R

RAILROADSCommission: Member of, Clerk of House of Representatives may qualify how . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Navigation Company, has control of ................... 111 Local school tax on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 Occupa,tion tax, municipality cannot collect from . . . . . . . . . . . 323

RIGHT TO CITIZENSHIP, of convict, restored how . . . . . . . . . . . . . 72

REAL ESTATE, Aliens, right to own . . . . . . . . . . . . . . . . . . . . . . . . 36

REFORMATORIES, State Committee on, expenses of ........... 245

REGISTRARS, Voters, list of, must furnish managers . . . . . . . . . . . . 433

REGISTRATIONBook: Closes six months prior to election .............. 354; 395 Kept how . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321 Tax Collector must keep . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 List: Revised to May 7th .................................. 383 Tax Collector must make every two years ............... 354 Permanent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332; 398; 403; 418

RELIGION, Legacy to, subject to inheritance tax ............. 127

REMOVAL, Office holder, not necessarily vacate office. . . . . . . . . . 353

REPRESENTATIVES, Clerk of House of, may be Railroad Com missioner, how . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

REPRIEVES, Governor's power to grant . . . . . . . . . . . . . . . . . . . . . . . 66

REQUISITIONSExpenses of, when county liable for . . . . . . . . . . . . . . . . . . . . . . . . 96 Language of, sufficient. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

RESACA, Confederate Cemetery, appropriation for, available when . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

RESIDENCE-

Absence, long, not necessarily change

334

512

County officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334 Voter ................................................ 396; 398
Length of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 466 REWARDS-
Dapital felonies, Governor's power as to . . . . . . . . . . . . . . . . . . . . 61 County cannot pay ................................. .'........ 282 Governor may offer-cannot employ detectives .............. 400 Offered after arrest, divided how . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Payable when ............................................. 419 ROADSAlternative Law: Grand jury may suspend ................. 208
Election called when . -. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 Condemnation, county's power for . . . . . . . . . . . . . . . . . . . . . . . . . . 218 Duty: Exemption from ............................ : . . . . . . . 231
Maimed person, not necessarily exempt . . . . . . . . . . . . . . . . . 465 National Guard, exempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399 Soldier, discharged, subject to ......................... 420 Laws ..................................................... 268 Public, abolished how ...................................... 300 Tax, school teacher, subje-ct to .........-.................... 456
s
SABBATH, Working on, unlawful. .............................. 284 ST. MARYS RIVER, Boundary between the StaJes, ferry on ...... 229 SANITARIUM:.._
Hotel, is not a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269 State: Lunatic, cannot be forced to receive .................. 251
Superintendent of: Must receive insane person .......... 428 Salary of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25f'
SAVANNAH, Mayor, etc., of v. Balmer, et al. . . . . . . . . . . . . . . . . . . . 7 v. Granger, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SCHOOLSBoard, Mayor or Councilmen may be members of . . . . . . . . . . . . 240 Buildings: Bonds for, Act constitutional . . . . . . . . . . . . . . . . . . . . 78 Church, using, illegal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Defects in causing injury management nor patrons liable for damages ..........................._. . . . . . . . . . . . 159 District, bonds, may issue for . . . . . . . . . . . . . . . . . . . . . . . . . . 311 Municipality may rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404 County: Superintendent: Bond of, Board of Education may pay premium on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 Corporation, need not notify . . . . . . . . . . . . . . . . . . . . . . . . . . . 425 Citizen of municipality may be ......................... 262 Funds in Insolvent bank, not liable for . . . . . . . . . . . . . . . . . 161 Nominated at any time ................................ 155
513

Qualification of . ; . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Residential eligibility ................................. 276 State or county officer ............................. 276; 308
Taxing authority, must notify when ... , ............ 425 Church, use of building, illegal ........................ ..... 166 District: Election in ....................................... 435
Portion of, election for, cannot hold ................. ... 412 Unconstitutional, not "entitled to funds ................. 172 Election, Ordinary's fees in .................... , . . . . . . . . . . . 267 Funds of, cannot be used for adults .................... 173 Houses: Bonds for, District in county on county-wide plan. . . 470 County Board of Education may build . . . . . . . . . . . . . . . . . 272 Local system, Resident of District cannot be member of
Board of Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337 Superintendent, qualification of . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292 "Supervision of for five years" explained . . . . . . . . . . . . . . 158; 292 Tax: Collection of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
County-wide plan: Election for ........................ 376 Who can vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
Property subject to ................................ 384 Defeated after levy ................... , . . . . . . . . . . . . . . . . 468 Election for, when it goes into _'"effect . . . . . . . . . . . . . . . . . . . 414 Local: Incorporated towns, in .......................... 221
Railroads . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 Tax-Receiver, commissions, not entitled to ............... 488 Teachers: Executive warrants for payment of constitutional 98 Municipal tax on ............. . . . . . . . . . . . . . . . . . . . . . 238 Road tax, subject to ................................... 456 Removable for cause ............................... :. . 456

SEARCH WARRANT, Intoxicating Liquors, City Marshal may secure ............................................ 370

SECRETARY OF STATECounty line controversy, decision final ..................... 488 Loan and Trust Company, hal? jurisdiction of . . . . . . . . . . . . . . 113

SECURITY DEED, Foreclosure of, may be advertised in any newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
SENATOR, State, municipal officer, may be .................... 246

SENTENCE- -

Court cannot suspend after adjournment ................... 319

Judge cannot suspend

179

SERVICE-Acknowledgement before filing in civil suit ................. 241 Tax-Assessors, County Board of, notice, how made . . . . . . . . . . 385

SHERIFFSCriminal, fugitive, non-resident, not compelled to go after .... 462

514

1ntoxicating liquors: Deaiers in, U. S. license, duties of ...... 424 Fees, Ordinary not responsible for ..................... 366

SIGNAL OIL, Subject to inspection ............................ 152
SOLDIER, Discharged, road duty, subject to ...................... 420
SOLICITORCity Court, State officer .............. ~ ........... 231; 324; 340 General: Fees of: In Court of Appeals .. .. .. .. .. .. .. .. .. .. . 95
In Court of Appeals and Supreme Court . . . . . . . . . . . . 83
Indictments, fees for drawing ...................... 240
Judge of City Court, may be elected . . . . . . . . . . . . . . . . . . . . 448

SOUTH GEORGIA NORMAL AND INDUSTRIAL COLLEGE, Treasurer of, may collect salary .................. 160

STANDARD TIME, "Sun time" ................................ 357

STATEBank Examiner, certificate of deposit, solvent bank, cannot compel to pay ..................................... 143 Board of Barber Examiners, funds of not State funds ........ 142 Board of Education, member of, temporarily absent, entitled to draw salary ............................. :. . . . . . . 33 Board of Health, diptheria antitoxin, may purchase . . . . . . . . . 184 Depositories: Bank's failure to qualify . . . . . . . . . . . . . . . . . . . . . 88 Bond of, for what time ... :. . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Branch bank cannot be . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 Governor names ............... _.. . . . . . . . . . . . . . . . . . . . . . . 134 Farm buildings, Governor must insure ...................... 178 Funds, pure food funds are ............................... 147-8 Geologist, may make exhibits ............................. 200 Librarian, may investigate character of commercial Notaries Public .................................... ., . . . . . . 203 Reformatory, Juvenile, court may commit to ................ 403 Superinte)ldent of schools: Misuse of funds by Board of Education, cannot anticipate ................... : ...... 166 Misuse of funds within knowledge, should prevent ...... 166 v. Ducktown Sulphur, Copper & Iron Co., Ltd............. . . . 5 v. Georgia Railway & Power Co............................. 21 v. Heimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 v. L. & N. R. R. Co., et al............. .... .. .. .. .. .. .. .. .. .. 13 v. Tennessee Copper Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Appointment of arbitrators, etc..................... , . . 74 v. Yaryan Naval Stores Co.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

STOCK LAW, Election, who can vote .......................... 209

STOCK, (Live-Stock) municipality may sell in no-fence county ... 387

STREAM, Running, fish, poison, criminal

401

STREETSCounty, authorities may work .................... ; . . . . . . . . . 289

515

Commissioners cannot work without consent ................ 272 Crossing, municipality may regulate ......................... 299 Tax, minor, municipality may collect from .................. 451

SUFFRAGE, Women, provision for in municipal charter void . . . . 55

SUMMONS, Justice Court, failure to obey contempt ............. 458

SUMTER COUNTY v. Cook, Secretary of State.................. 12

SUNDAY, Garnishment does not apply to . . . . . . . . . . . . . . . . . . . . . . . 339

"S.UN TIME," Standard time

357

SUPERIOR COURTS"Failure of," defined ..... : . ................................ 486 Four terms in county general law .......................... 404 Judges exchange service State not liable for expenses . . . . . . 69 Plea of guilty in, in vacation ............................... 243

SUPERINTENDENT OF SCHOOLS.:_

County, not liable for funds in insolvent bank ............... 161 State, cannot anticipate misuse of funds by Board of Educa-
tion .............................................. 166

SUPERVISION OF SCHOOLS for five years explained ...... 158; 292

SUPREME COURT, case barred from .......................... 411

SURVEYOR: County line dispute, how removed . . . . . . . . . . . . . . . . 85 County, vacancy in, how filled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

T
TAXAssessment, defaulters, notice, service on . . . . . . . . . . . . . . . . . . . 385 Assessors: County Board of: Complaints of dissatisfied taxpayers ............................................ 385 Member of, cannot hold other office .................... 328 Property, unreturned, should be assessed by ............ 385 Service on .................................. , . . . . . . . . . 385 Grand jurors, may be . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 Automobile: County must pay ............................. 327 County Treasurer handles ................................ 110 Bicycles, Dealers in ....................................... 471 Books, opened when ....................................... 478 Collector: Bond of, Governor's supervision of . . . . . . . . . . . . . . . 70 Commissions of ........................ 330; 474; 476; 485 Forfeiture of ...................................... 408 County Commissioners, may suspend when . . . . . . . . . . . . . 408 Depository; uses one named by Governor . . . . . . . . . . . . . . 134 Payments, made when ............................ 298; 493 Refund of taxes paid in by mistake ..................... 126 Registration book, must keep .......................... 299 Suspension of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
516

Vacancy in office, filled how . . . . . . . . . . . . . . . . . . . . . . . . . . . 484 County, levy of, to pay debt ................................ 438 Defaulter: Definition of .................................... 361
Double-taxed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Exemptions, blind persons, etc. . ................. ' . . . . 220; 227 Fi. Fa., third party, property sold to, may be levied on ....... 223 Itinerant doctors, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 License, peddler of harness oil, etc., must pay .............. 347 Local school; in incorporated town ......................... 221
On Railroads ........................ , . . . . . . . . . . . . . . . . . 219 Municipality, mandamus to collect . . . . . . . . . . . . . . . . . . . . . . . . . . 459 National bitnk, occupation, municipality cannot collect ...... 329 Occupation: Commercial corporation, must pay ............. 209
Railroads, municipality cannot collect from ............. _323 State licensee, municipality may levy on ........... ; . . . . 463 Telephone company, municipality may collect . . . . . . . . . . 325 Poll: All voters not necessarily pay ..... ................... 322 Convict, pardoned, must pay ........................... 330 Payer, refund of taxes improperly made . . . . . . . . . . . . . . . . . . . . 89 Professions, municipality cannot . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 Question, Special Committee, pay of stenographer of . . . . . . . . 444 Receiver: Bonds of ................................... 478; 489 Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Paid how and when . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Defaulter, should double-tax property . . . . . . . . . . . . . . . . . . . 126 School tax, commissions, not entitled to on . . . . . . . . . . . . . . 488 School: Collection of .................................... ~ . 425 Defeated after levy .................................... 468 Telephone company, occupation tax, municipality may collect
from .............................................. 325
TAXATIONChurch property bearing interest subject to . . . . . . . . . . . . . . . . 305 Citizen, General Assembly cannot relieve from . . . . . . . . . . . . . 82 School purposes: County wide plan: Election for . . . . . . . . . . 376 Election, who can vote in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384 Property subject . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384
TAXESCity, territory withdrawn, residents must pay ..... , ......... 310 Convict must pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442 May be refunded Tax-Collector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126Plantation on county line paid where improvements are ..... 305 Paid out, how ............................... : . . . . . . . . . . . . . 284 Received when . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478 Uniform, must be . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 Voter, must pay six months before election ................. 323 Wrong county, paid in, mistake may be corrected . . . . . . . . . . . . 306
517

TEACHERSExecutive warrant for payment of constitutional . . . . . . . . . . . . 98 l\lunicipal tax on ................ ,',, ........................ : 238 Payment, law constitutional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 Road tax, subject to ....................................... 456 Removable for cause .................................. 456 Vacation, cannot punish pupil for what he does during ...... 291

TEMPORARILY ABSENT, State Board of Education, member of, entitled to draw salary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

TERMS OF OFFICE, Constables and Justices of the Peace ...... 491

TELEPHONE COMPANY, occupation tax, municipality may collect .............................................. 325

TENNESSEE COPPER COMPANYFunds of, left on hand, refunded . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 v. State ..................... , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Appointment of arbitrators, etc. . . . . . . . . . . . . . . . . . . . . . . . . 74

TICKETS, Election, Governor not to furnish . . . . . . . . . . . . . . . . . . . . 467

TIE VOTE, Election of Justice of the Peace, void .............. . 94

TIME, Standard, "Sun time"

357

TRADE MARKS, Fraudulent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266

TREASURER (COUNTY)Commissions; On Coimnissions cannot collect . . . . . . . . . . . . . . . 483 On money handled only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324 County; Warrants: Must pay .......... : . .................. 341 Not paid, mandamus will not lie against . . . . . . . . . . . . . . . . 438 Funds, liability for illegally spent .......................... 274 Lowndes County, bond of, payable to whom . . . . . . . . . . . . . . . . 37 May be abolished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 Office of: Act abolishing, constitutionality of . . . . . . . . . . . . . . . . 50 Constitutional, is not . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 Vacancy in, filled how . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

TREASURY, Appropriation, money in, paid out on, only

304,; 402

u

UNION TANK LINE v. Wright. Comp.-General

12

v
VACANCY IN OFF'ICE, HOW FILLEDOrdinary's . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482 Surveyor's, County ...................... ,.. . . . . . . . . . . . . . . . . 43 Tax-Collector's . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484 Treasurer's, County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
VOTINGAt Court House, no election being held there, illegal. . . . . . . . . 156

518

"Single-shot" will not void election . . . . . . . . . . . . . . . . . . . . . . . . 348 VOTE, Who is entitled to .................................... 396 VOTERS-
Absent, cannot vote by proxy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319 Dropped from list must reregister ............... ;........... 235 List, purged before using .................................. , 318 Poll tax, all not necessarily pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322 Registration book of, permanent, how kept . . . . . . . . . . . . . . . . . 321 Registration of, permanent ................................. 332 Registration of, until registration book closes ............... 31~ Registered: Remain registered until disqualified ........ 312; 314
Taxes, may pay until list purged . . . . . . . . . . . . . . . . . . . . . . . 316 Residence of ............................... 396; 398
Length of ..... : .. -. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 466 Taxes, must pay six months before election . . . . . . . . . . . . . . . . . 323 Unconvicted, may vote .................................. : . 261 Vote in own precinct, must, if open ......................... 337
w
WAGES, Buying, foreign corporation, professional tax, not subject to ................................................ 310
.WARDENS (GAME)Dams, illegal, may break ................................... 195 Terms of office, expiration of ............................... 193
WARRANTS (COUNTY)Must be paid ......................... ~ ................ :. . . . 341 No funds to pay, mandamus not lie against 'I;reaslirer. . . . . . . . 438 Undated, due when .......................... _.............. 438
WARRANTS, Executive, for payment of teachers, constitutional.. 98 WATER AND LIGHT SERVICE Discontinued, citizens of munci-
pality without recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . :. 446 WAYS, Private, opening, Ordinary's cost in .............. ~....... 429 WHISKEY, Double-proof, two quarts could be received (Acts
1915) ................................................. 453 WILD LAND, Clerk of Superior. Court may .deal in. . . . . . . . . . . . . . . 380 WINE, Manufacture of prohibited ............................... 461 WITNESS FEES, in disbarment proceedings .................... 211 WOMAN SUFF'RAGE, Provision for in municipal charter void.... 55 WOODCOCK, etc., Law should read "December" instead of "Sep-
tember" ............. .................................. 198 WRIGHT, COMPTROLLER-GENERAL-
v. Ga. Ry. & Banking Co.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 v. Ga. Ry. & Power Co.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
519

v. Union Tank Line Co.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 WRIGHT, Wm. A., Inse. Com. v. Farm~rs Mutual Inse Co.. . . . . . . 18
y YARYAN NAVAL STORES CO v. State......................... 22

520