Report and opinions of the Attorney General of Georgia from May 1st, 1920, to June 15, 1921

REPORT. AND OPINIONS
OF THE
ATTORNEY~GENERAL
OF
GEORGIA
FROM MAY 1st, 1920, TO JUNE 15, 1921
R.A.DENNY
Attorney-General
IHDEX PiUNTNG r.:D.
Atlanta, Ga.

STATE OF GEORGIA
ATTORNEY-GENERAL'S OFFICE
ATLANTA

To His Excellency, Governor Hugh M. Dorsey,

State Capitol, Atlanta, Georgia.

1\fy Dear Sir: Pursuant to the requirement of law, and in view of the termination of my official life as Attorney-General coincident with yours as Governor, the latter part of June 1921, I am submitting to you herewith my annual report, covering my official services from the first day of May 1920 to the approximate ending of my term in June, 1921.
Differences of opinion are the inalienable right of every man, woman and child.
. I am pleased to address you "Excellency" in view of unvarying custom, extending as far back as 1777 in this Country, and endorsed by authorities political, legal and literary.

See the definition of "Excellency;"-

The Americana, Vol. 10, page 618.

Encyclopaedia. Britannica, 11th Ed.

Volume 10, page 49.

'

Century Dictionary, Vol. 3, page 2052.

Black's La.w Dictionary.

Bouvier's Law Dictionary.

See also:

Journals of the Senate of the State of Georgia. for the yea.rs1800, (pp. 31; 49) 1802, (pp. 4; 12) 1804, (pp. 521 ; 522 : 525) 1805, (pp. 4; 10; 11; fl2; 55; 56; 62.) 1808, 1809, 1811.

The abvve references are simply of aclik.e character With and co::nir.uing fr:om .tl!.e, Legid~;~tive J ourr.a!B. of Georgia suc-
cessively irom the year last mentic.ned to the year 1863, where

specific reference is again made to His Excellency in the Journal of the Senate of the State -of Georgia, pages 6; 40; 66; 70 and 94.
Thereafter, almost uniformly, the Governor has been addressed as "Excellency", in accordance with the lexicographers' definition, down to and including the present date.

I am herewith submitting, attached to this report, and as a

part thereof-

1st: A statement of all civil and criminal cases which have

been disposed of by these offices during the term of

my incumbency.

2nd: A list and report of the ;:status of all litigation now

pending to which the State is a party plaintiff or

defendant; said list embodying-

(a) Civil cases pending in the United States Supreme

Court.

(b) Criminal cases pending in the United States Su-

preme Court.

(c) Civil cases pending in the State Courts.

(d) Criminal cases pending in the State Courts.

3rrl. The written opinions rendered, by these offices (during

my incumbency), to His Excellency, the Governor, and

to such other State House Officials, who were author-

ized to have and receive the co-operation and assis-

tance of the Attorney-General.

In view of the many different Departments and Commis-

sions created by our Legislatures, with the right to call upon

this Department for advice, many opinions have been ren-'

dered verbally, which, in the Latd.c of :i;hi~1gs, cannot be incor-

porated into this report.

',,: : /.:

The work of the <;>ffi,)c oi Attorncy-Ge~~ral" is, of necessity,

an arduous one,. ;:-qt<iring constant .~tudy, watchfulness and

care.. In this work I have had the able help of the Honorable

Uraham Wrigh.t;' as Assif':a~: .~t~or:rif,i-G.:meral, ~vl1'o; com-





J,,J

4

hines not only legal acumen but a scholarly ability that has well fitted him for the discharge of the duties appertaining to the position.
In taking leave of my official positiol'l I wish to extend the personal thanks of both myself, as Attorney-General, and the , Honorable Graham wright, as Assistant Attorney-General, to. Your Excellency, and to all the Heads of Departments of the State, who, at all times, have been uniformly kind, 'Courteous, appreciative and co-operative. I will leave the Capitol with the accession of many friends and as many warm and tender recollections.
Respectfully submitted, R. A. DENNY, Attorney-General.
CASES DISPOSED OF.
Civil: H. M. Dorsey, Governor vs. William A. Wright, Comptroller-General.
Petition for Mandamus, involving the constitutionality of the State Highway, and Motor Vehicle ,A,cts of 1919. Mandamus refused by Superior Court; appealed to the Supreme Court, and judgment of the lower Court reversed.
A. W. Gaskins, et. al. vs. H. M. Dorsey, Governor, et. al. Injunction, etc. In Fulton Superior Court, involving the creation of Lanier County. Injunction refused, and decision affirmed by Supreme Court.
Turner, et. al. vs. \Vade, Sheriff.
In the Supreme Court of the United States; from Brooks County, Georgia. Injunction, etc. Finally disposed of by reversal of State Court.
Estate of A. V. Gude vs. State of Georgia.
In Court of Ordinary of Fulton County. Appeal from the decision of the Commiss~oners on ap-
5

praisement of the estate for inheritance taxes. State's contention sustained. ~latter finally disposed of.
Ogletree, et. al. vs. \Voodward, et. al.
In the Superior Court of Butts County. Injunction to restrain Board of Tax Equalizers from increasing assessments in Butts County. Involving the constitutionality of Tax Equalization Law. Injunction denied; appeal to the Supreme Court. Judgment of the Court below affirmed.
Geo~ .l\I. Napier vs. McLendon, Secretary of State.
Mandamus involving question of returns of the election for Attorney-General. In Fulton Superior C.ourt. :Mandamus refused. Appeal to Supreme Court. Judgment of lower court affirmed.
Criminal: Israel Jones vs. State; l\Iurder; from Richmond Oounty. Affirmed. ~euben Mincey vs. ,State; Murder; from Laurens County. Affirmed. Edwards vs. State; Murder; from Talbott County. Affirmed. -...vatson vs. State; :Murder; from Bibb county. Affirmed. Charlie Harris vs. State; Murder; from Floyd County. Reversed. Viola Johnson vs. State; Murder; from Bibb County. Reversed. Lee Cross vs. State; Murder; from Bibb County. Affirmed. Jim Williams vs. State; Murder; from Mitchell Count. Affirmed. Rollie Young vs. State; ' Murder; from 'Effingham County. Affirmed. Oscar Dorsey vs. State; Murder; from Coffee County. A __rmed.
6

George Swain vs. State; l\Iurder; from Tatnall County Reversed.
Levi Widner vs. State; Rape; from Miller C~mnty. Affirmed.
Shorty Ford vs. State; Rape; from Chatham County. Affirmed.
Emanuel Brooks vs. State; :Murder; from Bibb County. Affirmed.
Fleta Evans vs. State; l\Iurder; from Twiggs County. Affirmed.
Joe James vs. State; Murder; from Twiggs County. Affirmed.
Mitch Jones vs. State; Murder; from Thomas County. A __rmed.
Riley Bird vs. State ; Rape; from Calhoun County. Affirmed.
Lee Curry vs. State ; Murder; from Toombs Count. Reversed.
Joe Rowland vs. S.tate. Murder; from Wilcox County. Affirmed.
Arthur Osborn vs. State; Rape; from Cherokee County. Dismissed.
Dave Bowden vs. State; Murder; from Putnam County. Affirmed.
Ed O'Rear vs. State; Murder; from Taliaferro County. Affirmed.
Jim Williamson vs. State i nlurder; from Floyd Oounty. Affirmed.
Marion Callaway vs. State; Murder; from Fulton County. Affirmed.
Green Walker vs. State; Rape; from Emanuel County. Affirmed
Allen vs State; Murder; from Haralson County. Reversed.
Little vs. State ; Murder; from Haralson County. Reversed.
Brown vs. State; Murder; from Warren County. Reversed.
7

PENDING LITIGATION
Civil ca.<;;es in the United States Supreme Court: State of Georgia vs. State of South Carolina.
Original suit in the Supreme Court of the United States to establish and fix the boundary line between Georgia and South Carolina, the State of Georgia being represented by the Attorney-General, and Judge Thomas F. Green, of Athens, Georgia, as Special Counsel.
All evidence in the litigation has been taken; transcribed and printed n accordance wth the rules of the Supreme Court of the Unted States. The case is now, and has been for the past three months ready for final argument before the Court. Every effort has been made to have it set for final argument so as to be disposed of before the retirement of the present Attorney-General, these efforts have been thwarted by the inability of the Attorney-General of the State of South Carolin~ to agree to a hearing, owing to his other
I
engagements. Consequently, the case .cannot be disposed of by hearing before the coming Fall Term of the United States Supreme Court. Full preparation has been made, and nothing more is to be done other than file the briefs, and arguing the case.
The Texas Company vs. J. J. Brown, Commissioner of Agriculture, et. al.
Petition for injunction, etc., to restrain the 'Agricultural Department from the collection of Inspection fees. In the District Court of the United States for the Northern District of Georgia. Case was heard and decision rendered in favor of the State's contention. Whereupon the plaintiff appealed to the United States Supreme Court, where it is now pending. Messrs. Brew-
8

ster, Howell & Heyman are Special Counsel for the State of Georgia. Briefs have been filed, case advanced and set for hearing in October, 1921.

Criminal cases in the United States Supreme Court:
Robert Hawes vs. State of Georgia. Violation of the Prohibition law arising in Wilkes County.
Ponder vs. State of Georgia.. Violation of the Prohibition law arising in Glynn County.
Cleve Edwards vs. State of Georgia. Violation of the Prohibition law arising in Hall County.
Jim Denson vs. State of Georgia. Arising on conYiction for ::\Iurder m Twiggs County.

Civil cases pending in the State Courts of Georgia:

I

I

J. L. Riley & Company vs. William A. Wright, Comp-

troller General.

Pending in the Supreme Court of Georgia from

Fulton County. Injunction against canceling

Agency licenses iQf Fire Insurance 4gent.

G. E. Cooper, et. al. vs. R. E. Rollins, et. al., State

Board of Barber Examiners.

In the Supreme Court on appeal from Fulton

Superior Court. Injunction refused by Superior

Court; appeal carried to the Supreme Court. Invoiving the constitutionality of the 'crea~~on of

the State oBard of Barber Examiners.

J. M. B. Hoxsey vs. William A. Wright, Comptroller

General of Georgia.

In Fulton Superior Court. Injunction to re-

strain the collection of occupation taxes. Plea

and demurrer filed.

9

W. E. Sexton vs. C. B. Howard, et. al., and the Board of Public Welfare.
Injunction in the Superior Court of Fulton County. Plea filed.
Colgate & Company Ys. William A. wright, Comptroller-General.
In the Superior Court of Fulton County. Injunction against the collection of occupation taxes. Demurrer and answer filed.
Shredded Wheat Bi;<cnit Company vs. William A. Wright, Comptroller-General.
In the Superior Court of Fulton County. Injunction against the collection of occupation taxes. Demurrer and answer filed.
The Dennison ::uanufacturing Company vs. william A. Wright, Comptroller-General.
In the Superior Court of Fulton County. In- . junction against the collection of occupation taxes. Demurrer and answer filed.
Welch Grape ,Juice Company vs. william A. Wright, Comptroller-General.
In the Superior Court of Fulton County. In june tion against the collection of occupation taxes. Demurrer and answer filed. P. P. Jackson vs. Lucien Harris, Tax Collector of Fulton County. .In the Superior Court of Fulton County. Injunction to restrain the collection of occupation taxes. This case pending subject to decision of the Su-preme Court in the case of Engresser vs. Union Investment Company, the same question being involved in both cases. State of Georgia vs. The Estate of J. B. White. In the Supreme Court of Georgia. Involving a. decision of Tax Equalizers of Richmond County. State of Georgia vs. Hutchinson. Wilsox Superior State of Georgia vs. Hutchinson. Wilcox Superior Court. Litigation and flnal execution against Tax Col--
10

lector and bondsmen. Lands have been sold and: matter is now in charge of J. B. Wall, SolicitorGeneral, of the firm of Wall, Grantham & Kassowitz, of Fitzgerald, Georgia. Settlement, and full collection negotiated and pending.
Engresser vs. Union Investment Company, et. al. In the Supreme Court of Georgia. Intervention by State Superintendent of Banks. Error from: Fulton Superior O<;mrt, involving the Act of 1920, as to Uniform Small Loan law.
Latimer for use ~f State vs. Fulton National Bank. In Fulton Superior Court. Involving the misuse of State funds.
J. H. Jones, et. al. vs. Valdosta, ::\Ioultrie & western Railroad.
Intervention of the State of Georgia pending in the United State~ Court fo1' the Southern District of Georgia. Petifion for the payment of taxes due the State. State of Georgia vs. :Martin, Tax Collector. Suit against the Tax Collector and his bondsmen. Judgment for the State. In the Superior Court of Wheeler County. l\Iatter pending on motion for new trial: In charge of W. A. Wooten, former Solicitor-General, representing the State. Bank of Clayton vs. Daniels, Tax Collector. Petition for Injunction in Clayton Superior Court, involving tax on the capital stock of the Bank. National Council Junior Order American l\Iechanics vs. William A. Wright, Comptroller-General. Injunction in Fulton Superior Court, involving the. enforc~ment of the Insurance Laws. Dorsey, Governor vs. P. B. Latimer, et. al. Suit on Bond. Che:rokee Superior Court.
Criminal cases pending in the Supreme Court:
Henry Langston, Jr. vs. State. Murder; from Morgan County.
11

Bill lVIoore vs. State. Rape; from Glynn County.
lVIadison Cumming vs. State. Murder; from Baldwin County.
J. C. Grant vs. State. l\iurder; from Hall County.
T. .A. Davis vs. State. Rape; from Cobb County.
David Lochamy vs. State. Murder; from Tift County.
Dennis Hooks vs. State. l\Iurder; from Treutlen County.
Henry, .Alias Shorty, .Anderson vs. State. l\Iurder; from Floyd County.
James J\Iorgan vs. State. l\Iurder; from Haralson County.
1\Iilton Hinson vs. State. l\Iurder ; from Cook County.
G. G. Miller vs. State. l\Iurder; from Fulton County.
Pat Cohen vs. State. 1\Iurder; from Troup County.
Charlie Harris vs. State. 1\Iurder; from Floyd County.
1\facie Giddens vs. State. 1\Iurder; from Worth County.
Gene, alias James Harris vs. State. 1\Iurder; from Baldwin C~nmty.
George .Alford vs. State. 1\Iurder; from Pike County.

OPINIONS
Executive may remove disabilities without involving grant of pardon.

:Jiay 6, 1920. ,

Ron. Hugh ni. Dorsey,

Governor of Georgia,

Atlanta, Georgia.

Dear Governor: Replying to your inquiry of the third

. inst. submitting the following: A plea of guilty was entered

by a man to the offense of larceny after trust of an amount

making the offense a felony.

Counsel now seek to have his disabilities removed, in order

that he may vote.

Can this be done without granting him a pardon, the effect

of which might probably enable him to recover the fine

paid 1

The offense of larceny after trust is set forth in Park's

Criminal Code, Section 192, and the punishment there pre-

scribed for one having been found guilty is imprisonment and

labor in the penintentiary for not less than one year, nor

more than five years. The crime, as defined by this Section,

has its penalty prescribed by the same Section. No further

penalty is prescribed by the Code.

By the' Constitution of Georgia it is prescribed that no per-

son shall be permitted to register, vote, or hold any offce or

appointment of honor or trust in the State of Georgia, who

sh~ll have been convicted of larceny in any Court of compe-

tent jurisdiction punishable by t~1e law of this State, with

imprisonment in the penitentiary, unless such person shall

have been pardoned.

This is in no sense a part of the penalty as prescribed by

Section 192 for the offense of larceny after trust, but is

purely an incident, a result especially fixed by the Consti-

tution for all persons convicted of felonies as prescribed and

specifically set forth in Section 6404. However, by Article 5,

Section 1, Paragraph 12 of the Constitution (See Code section

6481). The Governor is given. the special power to grant re-

prieves and pardons, to commute penalties, remove disabilities.

imposed by law, and remit any part of a sentence for offense!>

13

.

'

:against the State, after conviction, except in certain cases as therein prescribed.
I have been able to find only three cases bearing upon the subject. In volume 1 of the Supreme Court Reports, page 606, our Supreme Court has laid down the doctrine that the pardon power of the Executive cannot be exerted after the sentence of the law has been fully executed.
This case has reference solely to the effect of an Executive pardon. The Court deciding that it would necessarily work a restitution of the fine undisposed of in the hands of the Cus-. todian who received same. But the pardon after a sentence has been executed is empty of benefit. Nor can the restitution of a fine be available after same has passed from the immediate possession and control of the Officer receiving same, i. e., after it has been appropriated in the manner prescribed by law. This case does not touciJ. upon the removal of incidental disabilities which the law has fixed.
The case of Parrott vs. wilson, 51st Georgia Reports, page, 255, is confirmatory of the doctrine laid down in 1st Kelly, and affirms that decision.
The third and only remaining case that I have found is that of Carmichael, et. al. vs. Banks, 102nd Georgia Reports, page 217. Nor does this case treat directly with the question under consideration. It, however, does treat with the disjunctive rights of the Executive to pardon, or reprieve, pr commute, or remit part of a sentence, or to remove disabilities.
And so, I reach the conclusion that the Executive has the power to remove the disabilities and restore the citizenship without involving the grant of a pardon. The grant of a pardon would necessarily remove disabilities because the former is predicated upon an Executive declaration of innocence, but the removal of disabilities does not presuppose or establish innocence, but is a rescission of a penalty which the law makes incident to the prescribed punishment for the crime.
Respectfully submitted, R. A. DENNY, Attorney-General. May 6, 1920.
14

.Executive has no authority for removal of Justice of Peace for mal-

l\fay 6th, 1920.

Hon. Hugh M. Dorsey,

Governor of Georgia,

,.

Atlanta, Georgia.

My Dear Sir: Acknowledging receipt of and replying to

:your inquiry of the fifth instant, I beg to say:

The matter stated is as follows: Complaint is made that a

Justice of the Peace "appears to use his office for illegiti-

mate purposes." No specifications are furnished as to what

he does, although these are promised, if desired.

Question: 1st. Has the Governor any jurisdiction what-

:soever concerning such matters~

2nd. If not, where should they go for relie1

3rd. If there is no provision made under which relief may

be had, would legislation be suggested, and, if so, what~

Answering: , 1st. I am of the opinion that the Governor

has no jurisdiction in such matters.

By .Code section 6525 (Park's Code, Vol. 5) it is provided

that Justices of the Peace shall be elected by the people, and

commissioned by the Governor. This ends the Governor's

connection with them.

The same Section then says, in conclusion; ''They shall be

removable on convictio~ for malpractice in office.'' This

Section is a Constitutional provision, it being Art. 6, Section

7, Paragraph 3 of the Constitution.

2nd. Section 4656, Vol. 4 of Park's Code provides-" Jus-

tices are removed from office in the manner prescribed in the

Constitution and also by conviction for malpractice in office,

or for an~ felonious or infamous crime.''

Sections 295, 296 and 300, of the Penal Code (See Park's

Code, Vol. 6) provide full recourse against these Officers for

.all and every sort of malpractice, and subjects them to pun-

ishment as for a misdemeanor, and removal from office (295).

Also provides procedure before Grand Jury and Indict-

ment (296).

And suspension of official privileges after indictment and

..Pending trial (300).

15

3rd. The answers to Questions 1, and 2, sufficiently covernumber 3. I hardly think any legislation necessary.
Respectfully submitted, R. A. DENNY, Attorney-General.
Saccharine Tablets: marketing and sale of.
May 5, 1920. Hon. J. J. Brown,
Commissioner of Agriculture, Atlanta, Georgia.
l\Iy Dear Sir: Replying to your verbal request with ref-erence to the matter set forth in the letter dated l\Iay third, by the Charles A. Smith Drug Company, to this office, with reference to the marketing and sale of saccharine tablets, 1 beg to say that:
There is no statute in the State of Georgia prohibiti:O:g the sale of saccharine tablets where they are marketed as such The statutes of the State have reference solely to the manufacture and sale, or offering for sale of deleterious, or misbranded foods, adding poisonous or deleterious substances (describing some substances considered deleterious, or detrimental to health). There are also regulations with reference to the substitution of substances of a deleterious nature in the manufacture and marketing of merchantable foods, etc.
I am of the opiliion that if the parties undertook to market an article that they designate as "rugar" which was made up in the main with saccharine, or to which saccharine contributed, it would be unlawful; but t~e marketing and sale of saccharin~ tablets, such as are mentioned in the letter to you, is lawful. l\Iy conclusions with reference to the matter are based on Sections 6141, 2103 and 4460 of Park's Code.
I am, dear sir Very respectfully yours, R A. DENNY, Attorney-GeneraL
16

Executive without authority to remove "disabilities" (so-called) of disbarred attorney-at-law.

May 11, 1920.

Hon. Hugh l\L Dorsey,

Governor of Georgia,

Atlanta, Georgia.

~ly Dear Sir: Complying with your verbal request to an-

swer to you a communication addressed to me, as Attorney-

General, undet date of May eighth, by william B. Kent, of

Alamo, Georgia, I beg to say that:

_

I have gone, with considerable care, over the file in the

matter of Mr. Kent's urgent application to you for the re-

moval of what he calls his "disabilities," and I beg to report

to you as follows :

In confirmation of the several opinions you have had from

my predecessor in office, Honorable Clifford walker, I do not

see how or wherein you have any jurisdiction whate-.:er in

the premises. 'l'he file seems to indicate that Mr. Kent was

first disbarred from practice as a lawyer, as provided by

Civil Code Section 4967 (3 and 4), and that, thereafter, he

was tried and convicted of malpractice in the office of Ordi-
nary. He states' in his letter of July :h, 1917, to l\lr. Albert

Howell, Jr., that since his disbarment he has been judge of

the City Court of Mount Vernon. The file seems to be replete

with inconsistencies, but, a_fter having gone to the bottom of

things, I am convinced that you have no jurisdiction what-

ever in the premises.

The Code prescribes the method of relief from his disbar-

ment disabilities which he will. have to follow. His conYic-

tion of malpractice in the Office of Ordinary carries with it no

disabilities and, therefore, he needs no relief in that matter.

Respectfully submitted,

R. A. DE-NNY, Attorney-General.

17

Motor Vehicle Law held unconstitutional-not, having been passed by aye and no vote as shown by Legislative Journ-als.

l\Iay 13, 1920.

Hon. Hugh ::\I. Dorsey,

Goyernor, Atlanta, Georgia.

l\Iy Dear Sir: I am in receipt of'your communications of

t.he fifth and eleventh instant, wherein you hand me an

opinion, rendered by l\Ir. Quincey, of the Highway Commis-

sion, attached, and a letter from the Secretary of State,

Honorable S. G. McLendon, also attached, and asking my

opitlion on the question discussed by them, as to whether the

Motor Ychicle Law, as passed by the Legislature of 1919

(See Acts of 1919 page 256) is a valid law, or whether the

same is unconstitutional, by reason of its being an Appro-

priation Bill, and not having- been passed in accordance with

the Constitution of the State. Section 20, of the 1\Iotor

Vehicle Law (Acts of 1919, page 259) provides that:

Section 20. Be it further enacted, That "the full amount

of the fees collected under this Act shall be turned into

the State Treasury by the Secretary of State within' thirty

days after collection, in such manner as the State Treasurer

ma~- prescribe, and that it shall be the duty of the State Trea-

surer, to set aside from said fees the sum authorized by the

budget sheet as prescribed under section 19 hereof. The

remainder of said funds arising under and by virtue of this

Act shall he distributed each year by the State Highway Com-

mission among the several Counties of this State, according

to the post-road mileage in each County, and spent by said

Highway Commission in the building, repairing and main-

taining public roads in each County, until December 31, 1920,

at which time said State Highway Commission shall apply

said fund to liquidate the bonded indebtedness of the State

created to support and build roads therein, and pay the

interest on siune; but should no such bonded indebtedness

be created, then said Highway Commission shall continue

to distribute said funds among the several Counties as afore-

said, and apply the same as aforesaid, until said bonds are

authorized.''

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~

18

There is only one way under the Constitution of Georgia whereby money, once "turned into the State Treasury" can be gotten out, and that is by Legislative authority duly enacted in the manner provided by the Constitution.
The Constitution of Georgia by Article 3, Section 7, Paragraph 11 (See Park's Code; Section 6440) provides:
''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 money shall be published every three months, and 'also with the laws passed by each session of the General Assembly."
To draw any of this money, therefore, "so turned .into the Treasury" as provided by Section 20, Acts of 1919, page 259, can only be accomplished by an "appropriation made by law.'' The Treasurer of the State has no authority to pay any monies out of the Treasury for any purpose as specifically stated by said Section of the Acts of 1919, unless the proper appropriation for so doing is made by the Legislature.
It being clear, therefore, that, the Act of 1919, by Sections 19 and 20, involves an appropriation from the State Treasury (the money having been turned into the State Treasury) it follows that Article 3, Section 7, Paragraph 12 (Park's Code Section 6441) provides the Constitutional manner of appropriating such money, which is as follows:
"No Bill or resolution appropriating money shall become a law, unless upon its passage the yeas and nays, in each house are recorded.''
It, therefore, becomes necessary to inquire as to whether the Act of 1919, page ;256, involving an appropriation as aforesaid, was passed in accordance with this Constitutional provision. If it was not, it does not become a law.
This Bill was House Bill 144, and was introduced in the House of Representatives by Messrs. Burt, of Dougherty, Dubose, of Clarke, and Neill, of Muscogee, and read the first time on June 30, 1919 (See House Journa;I 1919, page 841). It was entitled ''A Bill to amend an Act known as the Georgia Motor Vehicle Law," and was referred to the Committee on Public Highways. '
19

On July 22, 1919, it was read a second time in the House of Representatives (See House Journal 1919 page 841).
On July 30, 1919, it was read a third time in the House of Representatives, when certain amendments were adopted. The report of the Committee was favorable to the passage of the Bill, as amended, but, on its passage, the Bill failed to receive a requisite Constitutional majority and was lost. (See House Journal1919 page 1057).
Mr. Dubose of Clarks, gave notice that at the proper time, he would move for a reconsideration of the action of the House in defeating the Bill.
On July 31, (the next day) Mr. Dubose, of Clarke, moved that the House reconsider the action of the House of yester. day in defeating the. passage of the Bill. The previous question, on motion to reconsider was moved and prevailed, the main question was ordered on the motion to reconsider, the . vote being Ayes 108, Nays 46, the motiori to reconsider was adopted, and the Bill went to the heel of the Calendar. (See House Journal 1919 page 1294).
On Aug-ust 7, 1919, the Bill came up again in the House of Representatives, certain amendments were read and adopted, the report of the Committee was agreed to, and the Bill was put on its passage receiving a viva voce vote of 132 ayes and 11 nays. Thereupon the Bill was declared to have passed by the requisite Constitutional majority: The ayes and nays were not called for or recorded (See House Journal1919 page 1294).
The history of this legislation in the Senate is as follows: On August 8, 1919, the Bill was read in the Senat~ the first time, and referred to the Committee on Finance. (See Senate Journal 1919 page 1020). On August 9, 1919, it was read the second time in the Senate. (See Senate Journal 1919 page 1045). On August 11, 1919, it was taken up for a third reading and put on its passage, and a substitute for the whole Bill was offered and adopted. The report of the Committee which was favorable to the passage of the Bill, was agreed to. On a viva voce vote the Bill was passed by ayes 27, nays none, which was declared as being the requisite Constitutional majority.
20

The substitute, as passed by the Senate, was sent back to the House, and the House refused to agree to the substitute, whereupon the whole matter was referred to a Conference Committee, 'vhich finally reported to both Houses an agreement upon, the original Bill, which report was adopted, thereby completing the enactment of this Bill. (See Senate J:ournal page 1204, and House Journal page 1552).
While I am familiar with the decisions of the Supreme Court of this State, cited by Mr. Quincey, in his letter to y"ou of the 17th, I am of the opinion that these decisions do not apply to our Constitutional requirement, as shown by Section 6441, for the reason that the manifest intention of that Section is that the Legislature shall provide upon the passage of all appropriation bills a comprehensive and permanent record of the vote cast thereon; and the fact that the vote cast is specifically required to be yeas and nays precludes any idea that the action of the President of the Senate, the Speaker of the House, and of the Governor, in approving the Bill would be conclusive on the question as to the validity of the manner in which the Bill was passed. This Section, in terms requires as a condition preced~nt to the validity of all appropriation Bills the record of the yea and nay votes thereon, and, if such record is not made, in my opinion the Bill so far as same involves an appropriation is essentially invalid and void, as much as it would be without the approval of the Governor, the Speaker of the House of Representatives, or the President of the Senate.
In fact, in the leading case in Georgia, and in the one upon which Mr. Quincey relies (Deloach vs. Newton, 134th Georgia page 739) this Section of the Constitution is clearly differentiated from the one then before the Court (6443) the Court there saying: .
"\Ve need not determine what would be the ruling under a stringent provision similar to that contained ni the North Carolina Constitution, as for example, the Constitutional statement contained in Section 5775 (Park's Code Section. 6441) of our Civil Code, that no bill or resolution appropriating money shall become a law unless upon its passage the .yeas and nays, in each house are/ recorded." In the present

case, it 1s contended that the Act in -question is invalid, because the Journal of the House of Representatives does not show that the Constitutional provision embodied in the Civil Code; Section 5777 (See Park's Code Section 6443) was complied with. That section is as follows: ''No Bill or resolution shall become a law unless it shall receive a majority of the votes of all the members elected to each House of the General Assembly, and it shall in every instance, so appear on the Journal.''
The language here employed is different from that contained in Section 5775 (Park's Code 6441). The section now involved declares that no bill shall become a law' unless it receives a majority of the votes of all the members elected to each House, but does not add, 'and also unless it so shall appear on the Journal;' but after the first provision it adds the command, or direction, that it shall so appear. Therefore, whatever might be held in regard to an Appropriation Act, the present law comes clearly within the reasoning and authority of the judicial decisions above discussed. Neither are we dealing with what may be the requirements as to amendments proposed. to the Constitution, which, strictly speaking, are not Acts of the Legislature in the ordinary acceptation of the words, but proposals of amendments."
From the above, the legal deduction and conclusion is clear:
Section 6441 has reference to Bills appropriating money and must be specifically complied with, and the declaration of the Speaker of the House, and the President of the Senate declaring the passage of, and the approval of the Governor of, the Act as declared passed, works no estoppel as to judicial inquiry into the procedure going before, . and questionings as to whether the law was complied with and the yeas and nays recorded,
Now, with Section 6443 it is different, and that section applies to -legislative enactments (not Constitutional amendments, or those appropriating money) of a general or special character not requiring the aye and nay vote.
The decisions ~ited and depended upon by Mr. Quincey have reference to this latter class of legislation, and in that class
22

of legislation ,~e may not go back of the declaration of the

President _of the Senate, and the speaker of the House in

declaring the passage of, and the Governor, in approving the

Bill as pas;ed.

. Therefore, seeing that there was no yea and nay vote upon the passage of the Bill, I am of the opinion that that. portion of Section 20 of the Motor Vehicle Law of 1919 (Acts 1919 page 259) which appropriates and authorizes payment of

the revenue derived under the law, by the Treasurer of the

State of Georgia, is invalid and unconstitutional.

In accordance with your request, I am returning you herewith the file sent me with yours of the fifth and eleventh

instant.

Respectfully submitted, .R. A. DENNY, Attorney-GeneraL

The requisite number of States adopting the National Constitutional Amendment the women of Georgia are entitled to vote .whether Georgia has acted or not.
l\Iay 14, 1920. Ron. Hugh :l\I. Dorsey,
Governo:r, State Capitol. My Dear Sir: Replying to your letter to me of date April twenty-seventh, enclosing a letter from Mrs. McDougald, and copy of your reply thereto asking whether, if suffrage should carry by the adoption of the proposed United States' Constitutional Amendment by the requisite number of States, notwithstanding Georgia had not specifically acted thereon, or had repudiated such adoption by the requisite number of States, the same would immediately operate in Georgia and permit the women of our State to exercise the voting privileges thereunder 1 Also whether such voting privileges in Georgia, if permitted thereby, would apply only to National elections, or whether they would apply with equal effect to all State, County and Municipal elections Y
23

Also inquiring if suffrage should carry whether it would be advisable for some legislation to be enacted at the approaching session of the General Assembly I reply as follows:
Much ~s it is distasteful to me-contrary though it be to the teachings and precepts of a good mother, who, from our earliest infancy, taught an only sister and me that the Mother's throne and province and invulnerable-sphere was her home and fireside, where she, as Mistress of the world, and Queen of mankind, go,:erned man, who, in turn, as her minister, governed tlle universe:
Destructive, as it seems, of the modest, retiring influence of wife and sweetheart whose wishes political or social are as law to the average man and citizen:
Much as I am. opposed to the Fifteenth Amendment and ,the Prohibition Law (and that too on principle):
I am constrained to bow in submission to the legality and validity of both the Fifteenth Amendment and the Prohibition Law.
And now must needs give you as my oninion that, notwithstanding the Legislature of the State of Georgia, may not have adopted the Federal suffrage amendment, if, or so soon as, the requisite number of States of our Union have adopted said Amendment legally, it will become as effective and of full force in Georgia as in those States so adopting. And this will give the right of suffrage to the fair sex not only in National, but in State, County and Municipal elections.
The above answers questions one and two hereinabove set forth.
As to the third question: I do not think any lgeislation need be enact!(d at the approaching session of the General Assembly touching the matter, howeve.r remotely.
Respectfully submitted, R. A. DENNY, Attorney-General.
24

The Directorate of Branch Banks may consist in whole or part of the same persons who constitute the Directorate of the parent institution.

l\Iay 17, 1920.

Hon. T. R. Bennett,

Superintendent oL Ba~kR,

Atlanta, Georgia.

My Dear Sir: Acknowledgin!!. receipt of your inquiry of

the fourteenth instant, askin!! my opinion as to whether or

not, under Section 3, of Article l, of the Banking Law of the

State of Georgia, enacted by the r~e!!islature of 1919, on Au-

gust sixteenth, the Directora~e of branch banks may be com-

posed in part, or altogether of memberR of the Directorate

of the parent bank, I beg to say:

Section 3, Article 1 of the Act provides:

"Banks whose capital has been fully paid in and is unim-

paired may establish branches in the cities in which they are

located or elsewhere, after having first obtained the written

approval of the Superintendent of Banks, which approval may

be given or withheld by the Superintendent in his discretion,

and shall not be given until he shall have ascertained to his

satisfaction that the public convenience and advantage will

be promoted by the opening of such branch hank.

Such branch banks shall he operated as branches and under

the name of the parent bank, and under the control and direc-

tion of the Board of Directors and Executive Officers of said

parent bank.''

"The Board of Directors of the parent bank shall elect a

cal'!hier, and such other officers as may be required to pro-

perly conduct the business of said branch and a Board of

Directors, or r~oan Committee, -\vho shall be responsible for

the conduct and management of said branch but not of the

parent bank, or of any other branch save that of which

they are officers, directors or committee.''

Under the above qupte,d, paragraph it is clear that the

Board of Directcr.s_of the -bar,~~t ban~, in electing the directo-

rate, or loan cnmmatee, or' the b~mic4. bank, may choose the

members tt~rp;Jf in whole or in pa;t fr~il:t the parent bank, if

they so ct"esir~, but said directors, or co~mi1.tee, when so cho:s-

,

''.\.

'

.' " :.~ ~f) '._/

. . .

,, . .,...

-.-

en as such directors of'the branch bai1k shall, in that capa-

city be responsible for the conduct ancl ~anagement of said

branch but (as Directors of said branch bank) shall not be

responsible for the conduct and management of the parent

bank, or of any other branch bank save that of which they

are officers, directors or committee.

I do not see that there is any other conclusion or answer

that can be given to your inquiry than the above, and, to

that effect I must concur in the expression of Mr. William

'\V. Osborne, President of The Exchange Bank of Savannah,

set forth in his letter to you of date May thirteenth, attached

to your request to me for an opinion.

_This opinion is rendered you as a matter of right by virtue

of the authority vested in you under Section 23, or Article 2

of the Banking .Act hei'einabove referred to.

Respectfully submitted,

R. A. DENNY, ~-lttorney-General.

l\Iay 20, 1920,

I-Ion. C. A. West,

Executiw Secretary, State Capital,

Dear l\Ir. West: Replying to your inquiry of the eigh-

teenth instant, asking that I give you certain information

as requested of Governor Dorsey by A. l\1. Devaney, of Au-

gusta, Georgia, as to "hat fee-bill Magistrates in Augusta are

now to be governed by, I beg to say

Section 6003, vol. 5 of Park's Code, does not apply to

:Magistrates in the City of Augusta in view of the fact that

the population of Augusta does not come within the limits

prescribed by said Section. . Therefore, the l\fagistrates in

Augusta will be governed by the fees set forth in Park's Code,

vol. 5, Section 6002, as amended by the Acts of 1918 (See

Georgia Laws of 1918, pages 124,125, and 126.)

I find no other amendments to Section 6002.

Therefore, l\fr. Devaney should_ be g~vered as above set

forth.

.

.

Resr>ectfully sub~itted,

R. A. DENNY, Attor:uey-General.

26

The Citizens and Southern Bank of Savannah may consolidate its bond to the State with the bonds of its branches, as State De- ' pository or Depositaries.
l\Iay 21, 1920. Hon. Hugh M. Dorsey,
, Governor, State Capitol. Dear .Governor: Referring to your communication of the eighteenth instant, wherein yQu state that you have appointed The Citizens & Southern Bank, at Atl~nta, Macon and Savannah, as State Depositories, and fixed bonds as follmvs: Atlanta $50,000; 1\Iacon $10,000; Savannah $10,000, and asking 'vhether the Officers of said The Citizens & Southern Bank may under the law, be permitted, by their request, to file one bond of the aggregate amount as set forth above for the said three branches in lieu of filing separate bonds for each bank. I beg to say: The Citizens & Southern Bank is a regularly chartered institution under the laws of Georgia, as shown by the Acts of the General Assembly, September 27, 1887 (See Acts of 1887, page 344), as amended by the Acts of .the General Assembly of September 8, 1891 (See Acts of 1890-91, vol. 2, pages 277 and 278), and amended further on March twentieth, 1906 by the Secretary of State, by which last amendment its name was changed to ''The Citizens & Southern Bank.'' There is no record in the office. of the Secretary of State, or in the Acts of the General Assembly authorizing the establishment of any branch banks of The Citizens & Southern Bank either in Atlanta, Macon or Savannah. Therefore, it necessarily follows that these branch banks above named are Agencies of the parent bank at Savannah. This being the case, it is eminently proper that the parent bank should execute the bond for these branch banks in the aggregate sum of Seventy Thousand ($70,000.00). Dollars instead of making separ~te bonds fr omthe branches. This, under the conditions as above stated, would be a strict compliance with the terms of Section 1252 of volume 1 of Park's Code.
Respectfully submitted, R. A, DENNY, Attorney-General.
27

No charter amendments can be granted banks under the Act of 1917 as that Act has been superseded by the Bank Act of 1919.
May 25, 1920. Hon. S. G. McLendon,
Secretary of State, State Capitol. Dear Sir: Replying to your communication of the twentieth instant, with reference to the construction of the Banking Act of 1919, with reference to amendments to Charters, I beg to say: I have referred your letter to Honorable T. R. Bennett, Superintendent of Banks, and, after conference with him, I am replying to your communication as follows: The caption of the Act of 1919 provides that the same shall be "An. Act to regulate Banking in the State of Georgia; to create the Department of Banking-to provide for the incorporation of Banks,...and the amendment, renewal.and surrender of charters." (See Acts of 1919, page 135). By Article 1, Section 1, of this Act it is provided: "This Act .shall take effect-and shall supersede all existing laws regulating banks and banking in this State." (Acts 1919, page 222). By Article 9, Section 1, of the Act, .provision is made for amendments to the charters of banks, and the purposes for which these amendments may be allowed are specified. (See Acts 1919, page 169) .. It is clearly manifest from a careful reading of the Act of 1919, that it is intended to be exhaustive upon the question of Banks and Banking legislation therein referred to, and this is clearly shown by that portion of Article 21, quoted above. Such an intention 'vould be a repeal of the Act of 1917:
Hardy vs. The State, Court of Appeals, decided May 1920, and cases there cited. I cannot see that this Act should rel;llain effective any more than should the old Acts providing generally for incorporation and amendment of charters of banks, and it would not be seriously insisted that this Act unquestionably repeals and ~upersedes such former Acts. It seems to me that the specific instance Of which you speak in your letter is one that no bank should insist upon unless
28

it had been clearly ruled by the Supreme Court, as irreparable

injury might result by reason of the improper grant of sm~h

an amendment. The procedure for adjudication of- such mat-

ters is ciearly set forth in Article XVI of this Act, and the

time involved in determining this legal question should not



be a serious factor.

' While it is true that the question presented, being a ques-

tion wholly of construction, may be considered as doubtful,

still, as above stated, after careful study of the Act of 1919,

I am of the opinion that no charter amendment can now be

granted a bank, under the Act of 1917, as the same is not effec-

tive since the date of taking effect of the Act of 1919, to-wit; on Januarx 1, 19~l0.

Respectfully submitted,

R. A. DENNY, Atto_rney-General.

State Veterinarian not subject to. removal by Governor.
August 27th, 1920. Hon. Hugh M. Dorsey, Governor,
State Capitol, Atlanta. My Dear Sir: Yolir communication of the' 21st inst., with reference to the alleged irregularities on the,part of the State Veterinarian, Dr. Bahnsen: You ask me whether, under the law, the Governor has any jurisdiction or authority in this matter, and, if he has, you de-. sire that I let you know "\vhat it is, and how, under the law, . you may proceed. I reply as follows: Section 2082 (a), Volume 1, of Parks Code, creates the office of State Veterinarian and provides for his appointment and term. This Section is as follows:
"The office of State Veterinarian in the Georgia State Department of Agriculture is hereby created, and the Commissioner of Agriculture is hereby authorized to appoint a competent and qualified veterinarian (who must receive the endorsement of the Georgia State Board of Veterinary Examiners) to fill this ppsition under the title of 'State Veterinarian," such officer to continue in office during good behavior and the proper performance of his duties."
29

By this enactment, it can be clearly seen that the State Veterinarian is an appointee :of the Commissioner of Agricul~ ture, and holds his office indefinitely, or, as specifically stated, "During good .behavior and the proper performance of hiil duties." It is clearly seen, from this Section, that the Veter~ inarian is an appointee of the Commissioner of Agriculture and not of the Governor, and that his term is not prescribed. .. In the case of wright vs. Gamble, 136 Ga. Rep., page 376, it is held that ''where the tenure of an office is not prescribed b~~ law, the power to remove is an incident to the power to appoint. In such cases the appointee holds at the pleasure of the appointing power.''
Applying this Code Section, and the decision of t!J.e Supreme Court, I am of the opinion that the Governor of the State, under the law, has no jurisdirtion or authority over Doctor Bahnsen as State Veterinarian. The Governor is not clothed with any authority whatsoever, or with any duty, in connection with this situation,. and the only proper course for him to pursue would be to call the attention of the Commissioner of Agriculture to the situation, the power being in this latter officer to remove the Veterinarian for misconduct, or for such reasons as are prescribed by the Statutes.
I do not doubt at all that if the Commissioner refuses to act by way of removal, or take such other steps as may be necessary in the premis,es, in view of the findings of the Legislative Committee, that he himself is amenable for being guilty of misconduct in office, by reason of his.failure to act with reference to the misconduct of the State Veterinarian, and he himself would be subject to such strictures and penalties as the head of Departments are subject to under the laws of this State.
Respectfully submitted, R. A. DENNY, Attorney-General.
30

The promulgation and ratification of the 19th Amendment gives women immediate right of suffrage independent of any enabling Act.

August 30th, 1920
Ron. Hugh l\L Dorsey, Governor, State Capitol, Atlanta.
}1y Dear Sir : Replying to your verbal request for my
opinion, I submit the following:
i

THE UNITED STATES CONSTITUTIONAL Al\1END-

MENT No. 19 having been ratified by three-fourths of the

States of the Union, and said ratification result having been

duly promulgated by the Secretary of State -of the United

States,. an opinion is sought as to:

.

' 1st. whether any enabling Act of the Legislature of Georgia. is necessary to put the provisions of said Amendment into effect; and,
2nd. As to what the status of the women of Georgia is as co the immediate right of suffrage in all pending elections.

Answering the first question: No enabling Act is necessary.
Answering the second question: \Vomen, if in all other particulars qualified under, the Constitution of Georgia, arc entitled to vote immediately in all elections, primary or general, without registration.
The ratification and promulgation of the 19th Amendment to the Constitution of the United States provides:
1st. The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by and State, on account of sex.
2nd. Congress shall have the power, by appropriate legishtion, to enforce the provisions of this Article.
Two questions are raised under the present Constitution and statutes of Georgia:
A: Has a woman, who possesses all necessary qualifications under our Constitution, the right to vote in Georgia, without additional legislation? (The 19th Amendement to the United States Constitution being ratified and in op2rat'on.)
B: Is it necessary that a woman register b.3fore voting?
31

Under our system of Government, the right of suffrage is neither a natural, absolute nor vested 1ight, but one which is de~ived from the sovereign, either' through the Constitution or the statutes. 'l'he States, as a general rule, have exclusive right to grant and define the right of suffrage, and this right is limited in certain particulars by the Constitution of the United States, one of which particulars is that i10w contained in the l!Jth Amendment quoted above.
The Constitution o~ the State of Georgia with reference to defining or granting the right of suffrage, provides:

"Every male citizen of this State who is a citizen of the

United States, twenty-one years old or upwards, not iaboring

under any of the disabilities named in this Article, and pos-

sessing the qualifications provided by it, shall be an elector

f!nd entitled to register and vote at any election py the J,J~O

ple: Provided, that no soldier, sailor or marine in the mili

tary, or naval service of the United States shall acquire the

rights of an elector by reason of being stationed on duty in

th's ;;tate." (See Section 6396, Volume 5, Parks Code of Geor-

gia).

1

"To entitle a person to register and vote at any election of

the people, he shall have resided in the State one year next

preceding the election, and in the county which he offers to

vote six months preceding the election, and shall have paid all

taxes which may have been required of him since the adop-

tion of the Constitution of Georgia of 1877, that he may have

had an opportunity of paying agreeably to- law. Such pay-

ment must have been made at lea'lt SIX months prior to the

election at wh:ch he offers to vote, except when such electio.1s

are held within six months from the expiration of the time

fixed by law for the payment of such taxes." (See Section

6397, Volume 5, Parks Code of Georgia.)

"Every male citizen of this State shall be entitled to register

as an elector and to vote in all elections m said State, who is

not disqualified under the provisions of Section 2 of Article

2 of this Constitution, and who possesses the qualifications

prescribed in paragraphs 2 and 3 of this Section or who will

possess them at the date of the election occurring next after

his registration, 'and who in addition thereto comes within

either of the classes provided for in the five following subdi-

visions of this paragraph.

"1st: All persons who have honorably served in the land or naval forces of the United States in the Revolutionary war, or in the \Var of 1812, or in the \Var with Mexico, or in any

32

war with the Indians, or in the War between the States, or in the War with Spain, or who honorably served in the land or naval forces of the Confederate States, or of the State of Georgia in the War between the States; or,

"2nd: All persons lawfully descended from those embraced

in the classes enumerated in the subdivision next above; or,

.

"3rd: All persons who are of good moral characterand un-

derstand the duties and obligations of citizenship under a

republican form of government; or,

"4th: All persons who can correctly read in the English language any paragraph of the Constitution of the United States or of this State, and correctly write the. same in the English language when read to them by any one of the registrars, and all persons who solely because of physical disability are unable to comply with the above requirements but who can undertsand and give a reasonable interpretation of any paragraph of the Constitution of the United States or of this State that may be read to them by any one of the registrars; or
"5th: Any person who is the owner in good faith in his own right of at least forty acres of land situated in this State, upon which he resides or is the owner in good faith in his own right of property situated in this State and assessed for taxation at the value of $500.00." (See Section 6398, Volume 5, Parks Code of Georgia).

In the case of Ex Parte Yarbrough, 110 U. S. p. 651, the Supreme Court of the United States held:

"In all cases where the former slave holding States had not removed from their Constitution the words 'white man,' as a qualification for voting, the 15th Amendement to the Constitution does, proprio vigore, substantially confer on the negro the right to vote ......."
And in the case of Neal vs. Delaware, 100 U. S. p. 409, of the opinion, the Supreme Court rules:
"Beyond question the adoption of the 15th Amendment had the effect, in law, to remove from the State Constitution, or render inoperative that provision which restricts the right of suffrage to the white race."
The same principle is recognized in Georgia in the case of Howell, et. al. vs. Pate, et. al., 119th Georgia, p. 537.
Applying, therefore, the above rule,; and decisions to the instant matter, it is clear that, upon th~ adoption and promul-

33

gation of the 19th Amendment, the effe'ct was to nullify in the
_Coustituti9ii ind. la,vs of the Stat~ pfGeorgia the word 'male'
a's a qualification for .a voter, and this a~endment to the Con,stitution proprio vigore confers on women the right to vote.
Any otherconstruction than this would put the State above the Constitution of the United States, and would eni!ble the state, by a p~ssive inaction in non-repeal of these provisions, .to defeat the,, e:)(press mandate of the Constitution of the United States.
Consequently, though it may be desirable to change the laws ilnd Constitution of Georgia to clarify the situation, it is not necessary, and any woman possessing the necessary qualifications under the Constitution is entitled to the right of suffrage,. and no enabling act or statute is necessary.
With reference to the second question as to the necessity of '.registration: . .As a general rule, registration laws are upheld, not upon the ground that registration is an additional qualifi-
cation, but upon the theory that such laws regulate the manner of exercising a right already existant, and tend to the purity of the ballot. But in order to be valid such registration laws must afford to the persons entitled to vote a reasonable opportunity to register before the election.
While the Constitution of Georgia provides:
'.
"After the year 1908, elections by the people shall be by ballot, and only those persons shall be allowed to vote who have been first registered in accordance. with the require ments of law." (See Section 6395, Volume 5, Parks Code of Georgia).
Yet, it has been held that the neglect of the Legish1-ture to make such provision does not operate to deprive those having the Constitutional qualifications from exercising the right of franchise: (Stallcup vs. Tacoma, 13 'Vash. p. 141.)
.And that the necessity for registration only becomes an essential qualification when the legislature had enacted a proper registration law: (Morris vs. Powell, 125, Ind. p 281.)
This rule is necessarily true, for otherwise a law could be enacted providing that only white persons should be allowed
34

to register, and only persons registered. might vote, and by such enactment the provisions of the 15th Amendment would be defeated. No one would be allowed to register and 'only .persons registered might vote, and by such enactment the provisions of the 15th Amendment would be defeated. , No orie :would contend for a moment that this could be held to be the law and yet, today we are confronted with the same condition, to-wit: The Constitution of Georgia: prohibiting all perso~s from voting, unless registered, and the statutes of Georgia authorir;ing only the registration of males. It is to the effect of laws dealing with the right of suffrage that the courts look, and not to the language :
:
Meyers vs. Anderson, 238, U. S. 368. Guinn vs. U. S., 238 U. S. 347.
The laws of Georgia dealing with the registration of voters are embodied in Code Sections 34 to 74, inclusive, of Parks Code. These laws deal only with the registration of males. One of the provisions of the oath which must be subscribed to is that the applicant possesses the ''qualifications of an elector required by the Constitutional Amendment adopted in 1908," .and as one of the qualifications embodied in this Amendement is that such applicant be "male" it is manifestly impossible for any woman to take the oath, and therefore impossible for sueh woman to register. \Vere the provision that only registered voters should exercise the franchise upheld in this instance, the Legislature of Georgia could, so far as the State of Georgia is concerned, disfranchise every woman in the State of Georgia by failing or refusing to change the present registration laws. Certainly they could not by indirection in this manner do that which they cannot do directly. While it is true that we have concluded in the first portion of this opinion that the 19th Amendment nullifies the word "male" in the ,Constitution of Georgia, still the oath to be taken requires the applicant to swear that he is possessed of the qualifications set forth in the Amendment adopted in 1908-not that the applicant is qualified by law, or is qualified to vote, but by reference it makes the language of the Amendment a part of the oath, just as effectively as though it were written into the oath verbatim.
35

In so far as the six months period of registration prior to an election is concerned, this is arrived at by the provision of Code section 38, which provides that the registration books shall be closed for the election six months prior to the general election. , As there is no law in Georgia under which women may register, for any manner in which their names may get upon such registration books, or upon the registration lists, this this section is wholly inapplicable to them, as are other registration laws of thie Statt-
Summing up, therefore, women at-v entitled to vote immediately, both upon the ground that no reasonable opportunity was given them to registel", and upon further ground that there is no law in Georgia providing for the registration of women, or under which they may register, and, therefore, the necessity for registration only becomes an essential qualification under our Constitution when the Georgia Legisbhire has enacted a proper registration law for women.
Instead of a change of the present law with regard to registration, so that women can vote, an enactment is necessary requiring them to register and until such law is passed they are . entitled to exercise their Constitutional right of franchise under the Constitution of the United States; and vote without reg-istration, provided, of course, they are qualified otherwise under the Constitution and laws of GeOJgia.
Any other construction than this would either operate as a disfranchisement on account of sex, in violation of the Constitution of the United States, or would rlemand some self constituted State authority to enlarge on the registration laws of Georgia. This latter creates legal absurdity and consequently until Legislative action is had women can vote without registration.
Respectfully submitted, R. A. DENNY, Attorney-General..
GRAHAM WRIGHT, Assistant Attorney- General.

Executive without authority to remove Sheriff for misconduct.

August 31st, 1920.

Hon. Hugh l\L Dorsey, Governor,

State Capitol, Atlanta.



My Dear Governor: Replying to your communication of

the eighteenth instant, with reference to the communie'ltiou of

Mr. Abe Minchew, dealing with the removal of a Sheriff for

misconduct and requesting me to advise you if you can do any.

thing, and, if not, what the people of the county can do, I beg

to say:

Code Section 48!)7, which deals -\vith the removal of the

Clerk of the Superior Court, provides:

"They are subject to be removed from office by the Judge of said Court, for any sufficient cause, including incapacity or misbehavior in office, charges for whict must be exhibited to the Court in writing, and the facts tried oy a special jury, such clerk being entitled to a copy of the charges three days before trial."

Code Section 4920 provides in part:
"Section 4897, as to removal, also applies to Sheriffs.".
There is no provision of our law which authorizes the Governor to remove tillY Sheriff for miscondu.ct, or other cause. Therefore, the only. action that you c0uld take in the matter would be to instruct the Solicitor-General of the Circuit in which this county lies to institut eproceedings under the above Code Section for the removal of the Sheriff.
The statute is silent as to who may prefer charges; but I am of the opinion that this should be done in the manner followed in the case of Lancaster vs. Hill, 136th Georgia, 405, that is by the Solicitor-General upon the relation of some named citizen. The remainder of the Section seems to he perfectly clear upon the question of procedure.
I am returning yon the letter of Mr. Minchew herewith. Yours very respectfully, R. A. DENNY, Attorney-General.

37

The Coro.ner of one County is without authority to hold an inquest on. a person killed in another County than his own.
August 31st, 1920. Dr. William A. Davis,
, Director Bureau Vital Statistics, Atlanta, Georgia.
. Dear Sir: Replying to yours of the 27th inst., I beg to advise you that I am of the opinion that under the facts of this c~se, the Coroner of Bibb County had no right to hold an in-. quest, except upon the request of Monroe County, or upon the order of court having criminal jurisdiction in Bibb County.
There can be no question but that, under tile Yital Statistics Law, this body should not have been removed from Monroe County without a removal permit granted in terms of the law. However, this having already been done, constitutes merely a violation of the law and I see no way .'lt thi.-; time in which the matter could be remedied. It would seem to me that under the circumstances, all that you could do would be to note the facts, as they have been made to appear to you, upon your record of this death.
Yours very truly, R. A. DENNY, Attorney-General.
In the matter of Bond Elections in School Districts.
September ~nd, 1920. , Hon. E. L. :McCrory,
:, Executive Secretary, State Capitol. Dear Sir: Replying to your communication of the 31st, ultimo., enclosing a letter- from Mr. D. L. Millee, ,) D( ntou, Ga., with reference to the legality of a certain bond election in his School District, I beg to say: Bonds for building school houses in local tax districts are authorized by Section 1545, Volume 1, of Parks Code of Georgia, which reads as follows:
38'

,-:

"When one~fourth of the registered qualified voters of a

School District, in which a local tax is now or may hereafter

be levied for school purposes, shall be filed with the Board of

Trustees of such District, a petition asking for an election

for the purpose of determining whether or not bonds shall be

issued for the purpose of building and equipping a school

bouse, or houses for said District, the required number of

petitioners to be determined by said Board of Trustees, it

shall be the duty of said Board of Trustees to fix the amount,

denomination, rate of interest and dates when due and call

such election in terms of law now provided for a county issue

of bonds, except as herein otherwise provided. The said

Board of Trustees, in case the election is for a bond issue,

shall follow the law as required for county authorities as em-

bodied in Section 440, et seq., of this Code,. in the issue

thereof. Said Board of Trustees may .order such election to

be held on the school site or other suitable place in the dis-

trict, of which they shall give notice by posting same at three

public places in said district not less than ten days previous

to said election. None but regis!.ered, qualified voters shall

be permitted to vote in said election. The ordinary shall

furnish a certified list of registered voters in such school dis_-.

trict to the managers of election thirty days before such elec~

tion is held. The ballots cast shall have written or printed

thereon 'For Schoolhouse' or 'Against Schoolhouse.' The bal-.

lots cast and the voting list sball be lodged with the said Board'

of Trustees, who shall declare the result. Said Board of Trus-

tees, or a majority of them, shall be the election managers,.

and if for any reason they fail to act, any three free holders.

of the District may qualify and act.''

It wilL be seen from the foregoing that only registered!., qual-

ified voters may participate in the election. Inasm1eh ns it is.

not the province of this office to determine whether Mr. Miller-

has had a fair deal, we can only suggest that he consult com-

petent counsel to investigate the matter' for him to a!Scertain

whether the provisions of the law have been complied with by

the Board of Trustees.

Respectfully submitted, .. ,.

R. A; DENN)", .

..

Att~rr~e,y,-Gen~rat.

39

,.

Disp\lsltion of person becoming insane after conviction of crime.

SeptemiJer 2nd, 1920.

Ron. E. L. McCrory,

Executive Secretary, State Capitol.

Dear Sir: Replying to your communication of the 30th,

ultimo., enclosing- letters from the Clerk of the Superior Court,

and Sheriff, of Terrell County, with refer.ence to the insanity

of one Prince Alford, who on August 20th, 1920, was convicted

of an assault with intent to murder, sitice which time he has

developed pronounced insanity, and IJeing now confined.

Sections 1074 and 1075,. Parks Code, Volume 6, seem to cover

the case, and are as follows :

"Upon satisfactory evidence being offered to the Governor of this State that the person convicted of a capital offense, has become insane subsequent to ills conviction, the Governor may within his discretion, have such person examined by expert physicians as the Governor may choose, and said physicians shall report to the Governor the result of their investigation; and the Governor may if he shall determine that the person convicted has become insane, have the power of committing him to the State Sanitarium until his sanity shall have been restored, as determined by laws now in force. The costs of the investigation shall be paid by the Governor out of the contingent fund. Neither this nor the preceding section applies to any case pending August 17th, 1903." (Section 1074 Code of Ga.)
"When any person shall, after conviction of a capital crime, become insane and shall be so declared in accordance with the provisions of the preceding section, the convict shall be received into the State Sanitarium, there to be safely kept and treated as other adjudged insane persons. All the provisions of the law relating to insane persons under sentence of imprisonment In the penitentiary shall apply to the class of cases herein provided for, and In so far as applicable." (Code of Georgia, Section 1075.)

Applying the aboveto the instant case,it is my opinion that

the Governor should direct that the insanity of the man in

question should be inquired into as by the quoted Sections pre-

scribed, and that the case should then be disposed of as therein

set forth.

Respectfully submitted, R. A. DENNY,

Attorney-General.

A special funj appropriated by the Legislature must be used JQr that purpose and may not be diverted.
Sep~ember 16th, 1920. Hon. S. G. McLendon,
Secretary of State, State Capitol. Dear Sir: I am in receipt of yours of the second instant, enclosing a communication from Honorable M. L. Brittain, State Superintendent of Schools, inquiring as to whether au'tomobile trucks, owned by the Municipalities of this State, and exclusively used for the transportation of pupils to the public schools of the State, are subject to the provisions of the Auto.mobile Registration Act of 1915 as amended by the Motor Vehicle Law of 1919. Replying to this inquiry, I beg to say: The Automobile Act of 1915, by Section 4, provides that ''every owner of a motor vehicle, or motorcycle, shall, on or before the first day of March in each year, before he shall operate such motor vehicle, or motorcycle, reg-ister such vehicle in the office of the Secre-tary of State, and obtain a lice~se to operate same for the ensuing year.'' The Act then, as amended by the Motor Vehicle
a Act of 1919, proceeds to fix schedule of fees for such licenses,
:and provide for the disbursement of the money. Common knowledge, and the terms of these laws themselves clearly iudicate that this license fee is imposed for revenue rather than for regulation. The revenue, however, as so provided, is for .a specific purpose, to-wit: the buildinp: and maintenance of public highways in the State of Georgia.
The question of the distinction betw<en a license and a tax is set forth very clearly in the case of Home Insurance Company vs. The City of Augusta, 50th Georgia, page 530. In that case, Trippe, Justice, said:
"There is a clear distinction recognized between a license granted, or required, as a condition precedent before a certain thing can be done, and a tax assessed on the business which that license may authorize one to engage in." (42nd Ga. p. 596.)
"A license is a right granted by some competent authority to do an act which, without such right, would be illegal. A tax is a rate, or sum of money, assessed, on the person, property, etc., of the citizen." (36th Ga. p. 460.)

."A license is issued under the police power of the authority which grants it. If the fee required for the license is intended~ for a revenue, its exaction is an exercise of the power of taxation."

Applying the rule announced in this.decision, it is clear thatthese laws, in so far as the fee required is concerned, are undoubtedly an exercise of the power of taxation by the State,. and are to be regarded as such, keeping in mind, however, the specific purpose for which the revenue so raised is to be ex- pended.
With this conclusion,' the question is then presented as totaxation by the State of the property of the State or the sub- . ordinate political aivisions thereof.
The Constitution of the State of Georgia, Article 7, Section 2, Paragraph 2, provides in part, as follows:

"The General Assembly may, by law, exempt from taxation all public property, etc."

and, in accordance with this provision, the Legislature of the: State of G_eorgia has enacted a law which is now embodied in Code Section 998, and is, in part, as follows :
"The following described property shall be exempt from taxation, to-wit: all public property, etc."

In the case of Board of Trusteees of the Gate City Guard vs.

City of Atlanta, in the 113th Georgia, page 883, the words,.

"public property," as used in the foregoing statute, and in the-

Constitutional provision quoted above were defined to mean

"only such property as is owned by the State, or some political

division thereof, and title to which is vested directly in the

State, or one of its subordinate, political divisions, or in some-

person holding exclusively for the l;>enefit of the State, or a

subordinate public corporation.''



The established policy of this State, as laid down by the-

Supreme Court is in line with the above Code Section. In the-

case of Penick vs. Foster, in the 129th Georgia, page 217, the-

rule is stated to be as follows:

"The general rule is that public property and the variou& instrumentalities of government 11.re not subject to taxation..

.This immunity rests upon the most fundamental principles of government being necessary in order that the functions of government may not be unduly impeded, and that the government be not forced into the inconsistency of taxing itself in order to raise money to pay over to itself."
,
And in the course of this opinion, the Supreme Court says~ page 225:
"A municipal corporation, occupying for many purposes the same position as the State, so far as the taxing of its instrumentalities are concerned, is not within the operation of a tax law, unless expressly named, or there is clear language indicating such an intent."
See also in the same connection, in the case of State vs. Western & Atlantic Railroad Company, 136th Georgia, page 619. The reasons contained in these decisions and the law quoted are broad enough to cover pot only the ad valorem property tax, but likewise to cover any license, or occupation. tax, imposed by the State or its political subdivisions, provided said tax so imposed is to be used for general purposes.
Consequently, applying the rules hereinbefore laid down by the decisions quoted, the public property represented by the ownership of the automobile, as mentioned in Mr. Brittain's letter, would not be subject to the license tax imposed by the Act of 1915, as amended by the Motor Vehicle Law of 1919, in the absence of some express provision in these Acts making them applicable.
Such express provision is clearly found, however, in the fact that the monies to be raised by the Highway Act and the Motor Vehicle Amendment are to be held by the State Treasurer as a separate fund to be used exclusively' for the building and maintenance of public highways in the State of Georgia.
Therefore, by reason of the fact that the funds so raised by this taxation are to be used for this specific purpose, I am constrained to decide that it cannot be diverted for the purposes a~ set forth and contended for in the .communication of the State School Commissioner, however meritorious the object in view. A special fund appropriated by the Legislature for a speciat purpose must be used for that purpose and may not be diverted.
43

In' collecting this tax for special purposes the otherwise in-consistency of the State in taxing itself in order to raise money to pay .over to itself is done away with for the reason that the money so raised by these Acts is not paid to the State; but is specifically delegated to a special purpose, to-wit: the building and maintenance of highways.
Respectfully submitted,, R. A. DENNY, Attorney-General.
:Expense of arrest and return of probationers violating their parole falls under same rule as execution of warrants.
September 20th, 1920. Hon. Hugh M. Dorsey, Governor,
State Capitol, Atlanta. My Dear Sir: I am in receipt of yours of the 15th inst., enclosing communication from Mrs. 1\Ianson, in which she requests an opinion from the Attorney-General as to who (under the present form of probation blank, in the event of a violation of the parole of probation) should bear the expense of the paroled's apprehension, arrest and return to the Institution. The Georgia State Reformatory was established by the Act of 1905. (Acts of 1905, page 127). By the Acts of 1919, page j73, the name of this Institution was changed to '' rJ-eorgia Training School for Boys,'' and the powers theretofore vested in the Prison Commission of the State of Georgia were vested in a Board of Managers. Section 1247 of the Penal Code provides:
"A written order signed by any member of the Prison Commission shall be sufficient warrant to any officer of the State, or any other person named in the order, to authorize the officer, or other person named, to arrest and return to actual custody any conditionally released or parole inmate; and it is the duty of all officers of the State to execute any such order placed in their hands, the same as any ordinary criminal warrant."
Under the provisions of this Code Section, it is quite clear that the expenses incurred in the arrest and return of a pro-
44

bationer, who has violated the terms of his parole, stand upon

the same footing as the costs of any ordinary criminal war-

rant of the State of Georgia, and the payment would likewise

be upon the same basis as under ordinary criminal warrants

,

of the State .of Georgia. Of course, under these conditions,

in the event that the probationer, violating the terms of his

parole, had any estate, sufficient to pay the expenses, then

sal-\ 'xpenses could be made from him; otherwise, the officer

would not receive compensation for the arrest and execution

of the warrant, except in those cases specifically providing for

the P.ayment of costs and expenses under some special statute

I trust, dear sir, that this answers your inquiry fully.

Respectfully submitted,

R. A. DENNY,

Attorney-General.

The maintenance of an inmate of the State Sanitarium is chargeable to and collectible from the estate of such inmate if they have one.
September 20th, 1920. Hon. Hugh l\:L Dorsey Governor,
State Capitol, Atlanta. lVfy Dear Sir: I ain in receipt of yours of the 15th inst., stating that the Special Tax Investigators of the State have developed an estate of a woman in Clarke County who many years ago was committed to the State Sanitarium at Milledgeville, Georgia, and requesting information as to whether or not there is any way, under the law, by which the State can force the estate of this woman to pay the expenses of maintaining her as an inmate of the State Sanitarium. By Code Section 1565, et seq., provision is made for the admission of inmates to the State Sanitarium. Code Section 1607 provides as follows:
"If a patient committed as a pauper, or as of limited means, becomes entitled to an estate, said estate is bound for his support according to its value, and whoever holds it may be compelled to secure to the Sanitarium its proper charges, or to turn over to the trustees the property to be held for such purpose."
45

. Under the provisions of Code Section 1573, prescribing the authority of the Trustees of the Georgia State Sanitarium, l.t is provided that they shall have authority:

"7. To bring suit in their names for any claims the institution might have, whether arising upon contract or tort::

Under these Sections of the Code, I am of the opinion that

'the State, by proper proceedings through these Trustees against

the Guarqian of this insane person, can require proper pro-

'vision made for the support of this woman in the State Sani-

tarium, and in addition thereto can collect from such Guardian

ihe expenses of the State already incurred within the statutory

period.

If you desire that I take steps in this matter, kindly furnish

me with the names of the Special Tax Investigators who de-

veloped these facts, so that I may take the matter up with

ihem, in order to secure the necessary data to institute these

proceedings in Clarke County.

Respectfully submitted,

.

R. A. DENNY,

Attorney-General.

'Insane soldiers and sailors under Government protection may be admitted to the State Sanitarium without commitment trial provided the conditions set forth in Code Sees. 1601 and 1609 are complied with.

September 22nd, 1920. -Ron. Hugh M. Dorsey, Governor,
State Capitol, Atlanta. My Dear Sir : Replying to your inquiry of the 20th ,inst., enclosing letter from the Georgia State Sanitarium which requests an opinion from the Att.orney-General as to whether or not the Board of Trustees can admit insane soldiers and sailors to the Georgia State Sanitarium without the formal com-mitment required by law, the Government being obligated to pay for these persons at $3.00 per day, I beg to say:
This matter is governed by the provisions of Code Sections 1601 and 1609 of the Code of 1910 of the State of Georgia, which provide:
46

."1601. ".A pay patient, resident of this State, shall not be admitted

unless accompanied by authentic evidence of lunacy, accord-

ing to law, or there is produced the certificate of three re-

spectable prac~icing physicians, well acquainted with the con-

ditio_n ()f the patient, or from one of such physicians and two

respectable citizens, stating the cause of the application."

.

;1.609. "Before or after admission of a pay patient, resident or non-

resident, by certificate, the person alleged to be a lunatic, or

his friend or relative, may make a demand of the superintend-

ent for a trial of the question of lunacy by jury, which shall

be had without delay, according to law, in the county of

:Baldwin."

'Therefore, these pay patients may be admitted without formal commitment trial, in accordance with the provisions of these Code Sections, where the terms thereof have been complied with, subject, of course, to a formal trial, upon demand, in accordance with the provisions of Section 1609, quoted ..above.
Respectfully submitted, R. A. DENNY, Attorney-General.

-:The Executive has authority to suspend collection of tax of an individual provided such suspension complies with the requirements of Code Section 162.

_ October 4th, 1920. Ron. Hugh M:. Dorsey, Governor,
State Capitol, Atlanta. My Dear Sir: Replying to your verbal request, presented >through Mr. West, asking for a construction of Code Section 162, Volume 1, of Parks Code, as applying to an individual case, I beg to say: The verbiage of Section 162 would seem to indicate that the suspension mentioned refers solely to a class of tax, and not ;an individual. However, the language i~ broad enough to indude both, and, therefore, I give it to you, as my opinion, that _you can suspend the tax in an individual case as you may see fit without incurring any criticism or censure from any -quarter. This suspension, of course, could only be until the
''47

next session of the General Assembly as provided by the Code Section mentioned.
I have the honor to remain, Very respettfully, R. A. DENNY, Attorney-General.
Salar-y of the pr-esent and futur-e Attor-ney-Gener-al of Georgia are controlled by Act of Aug. 10, 1919, which was validly passed.
October 7th, 1920. Hon. Hugh M. Dorsey, Governor,
State Capitol, Atlanta. My Dear Sir: In compliance with your verbal request that I give you a written opinion with reference to the amount of salary, per annum, that the Attorney-General (present incumbent) is entitled to, I beg to say: Prior to August 18, 1919, the salary of the Attorney-General' of G(lorgia was fixed at $3,000.00, in addition to certain fees that were allowed him for certain classes of litigation as specifically prescribed; he also, in addition to the above, was entitled to a salary of $. :. . . . . . as Supervisor of County Officers, and County Records. His entire compensation from the above sources aggregated something over Five Thousand DolJars, as estimated. The General Assembly of the State of Georgia in the session of 1919, enacted a law reorganizing the office of the AttorneyGeneral, abolishing the salary of Supervisor of County Officers and County Records, and also abolishing the right of the At~ torncy-General to draw any additional ft>es or compensation as theretofore specifically provided, and jncreasing the salary of the Attorney-General from Three Thousand to Five Thousand' Dollars. Section 2 of that Act provides:
"Be it further enacted by the authority aforesaid; That the
salary of the Attorney-Gene;al is h<Jreby fixed at the sum ot
$5,000 per annum, the same being the total compensation. heretofore paid' for all services rendered, provided that the Attorney-General shall hereafter represent the State in all cases.
48

betore the Supreme Court of the United States, and preform all other services beyond the limits cf the State without extra compensation. The salary of the Assistant Attorney-General is hereby fixed at the sum of $2,500 per annum. The salary of the stenographer to the Attorney-General is hereby fixed at the sum of $1,500 per annum."

This Act was duly enrolled, signed by the Speaker of the House, President of the Senate, and was approved by the Governor of the State of Georgia on August 18, 1919, and filed in thr office of Secretary of State of the State of Georgia.
It develops from an investigation of the journals of the Senate and House, respectively, that this bill 'vas passed unanimously by vote; that in the House it received a vote of 107 ayes, and no nays, which was more than two-thirds of those present, those present being more than a quorum of the House. In the Senate it received a vote of 32 ayes and no nays, which was more than two-thirds of those present, those present being more than a quorum of the Senate.
The Constitution of the State of Georgia provides by Article 6, Section 13, Paragraph 2 (See Parks Code, Section 6534), that:

"The General Assembly may at any time, by a two-thi'rds vote of each branch prescribe other and different salaries for any, or all,. of the above officers. but no such change shall affect the officers then in commission."

The officrrs referred to in said Sectimt are the Judges of the

Supreme Court, the Superior Courts, tlw Attorney-General,

and the Solicitors-General of the State.

Mr. Clifford "Walker was the thrn Attorney-General in com-

mission at the timr of the passa;!P of this Act, to-wit: Ang:nst

18, l!H9.

Since that time he,lJas resig:nrd, anrl the prrsent incumbent, R. A. Denny, has been appointed Attorney-Genet~'ll in his.

stead.



It is, therefore, clear that thr drawing of the increased sal-

ary of Five Thousand Dollars, by Attorney-General Denny, is

not violative of the above Constitutional section in its pro-

vision ''That no such change shall affrct the officers then in

commission,'' or the rf'aflon that AttornPy-General Denny was

49

not at that time in commission.. The very terms of said provision, however, denied the right of Attorney-General Walker to benefit by such increase, he then being in commission.
The only remaining question, therefore, for consideration, is the question of the validity Of this law, by reason of the facts hereinafter set forth and explained,. which facts are gleaned solei?' from the Journals of the Senate and House.
It appears from the Journals of the House and Senate that the House consisted of 193 members, and the Senate of 51 members. In both bodies, the Journals state, a quorum was present on the passage of- the bill.
On the p!ls.sage of the bill in the House the ayes were 107, and the nays were none. .There was no roll call, or other record of the vote by ayes and nays.
In the Senate the ayes were 32 and the nays were none and there was no other record of the vote by ayes and nays. The Journals recite that the Speaker of the House, and the President of the Senate announced that the bill had received the J,"equisite Constitutional majority, and was, therefore, passed. The bill, as passed, was signed by the Speaker of the House, the President of the Senate, approved by the Governor on August 18, 1919, was duly enrolled as a law of Georgia and filed with the Secretary of State. Therefore, unless the Journals are consulted to establish facts to the contrary, the law was regularly passed, duly approved and became of force and effect on the day of its approval, Angust 18, 1919, with re~ gard to all incumbents excepting only the one then in commission.
'fhere have been four decisions of the Supreme Court of Georgia touching the enactment of laws by the Legislature where the question of consulting the Journals, to establish the validity or invalidity of the passage of an Act is involved. In each case the Supreme Court has decided that the Journals may not be consulted for such purpose, but that the declara. tion of the Speaker of the House, and President of the Senate, and the signature of those two officials, together with the approval and signature of the Governor, the enrollment of the hill, and filing in the office of the Secretary of State, preclude any examination or investigation as to the manner in which
50

the Act was passed, or as to whether the requisite vote was taken or recorded, and this, notwithstanding any Constitutiontal provisions on the subject in the Constitution of Georgia.
It is decided further that the Journals of the House and Senate are not admissible in evidence to support any attack on , the validity of any Act of the Legislature.
The Supreme Court of Georgia in the case of Deloach vs. Newton, 134 Georgia, page 739, had under consideration the effect of the omission of the Journal entries; as affecting the validity of a law passed by the General Assembly. This case was based on the Constitutional requirement, as set forth in Section 6443, Parks' Code, providing that "no hill shall hecome a law unless it shall receive a majority of all the votes of each House of the General Assembly, and it shall, in every instance~ so appear on the Journal. In this case, after considerable review of foreign authorities, and of all previous decisions of the Supreme Court of Georgia touching upon the question, the Supreme Court of Georgia held:
"A bill duly signed by the President of the Senate and the Speaker of the House, approved by the Governor, was conclusive, and that the journals may not be_resorted to to show that the bill had not been passed in conformity with the Constitutional requirements."
This decision was followed by the Supreme Court of Georgia in the case of Whitley vs' State, 134 Ga. p. 758.
and in the case of :
"Atlantic Coast Line Railway Co. vs. State, 137th Ga. p. 45."
In this last named case the Supreme Court held in terms as follows:
"A duly enrolled act, properly authenticated by the regular presiding officers of both Houses of the General Assembly, approved by the Governor and der>osited with the Secretary of State as an existing law will be conclusively presumed to have been enacted in accordance with Constitutional requirements, and that the journals of the two Houses of the General Assembly are not admissible to show. to the contrary."
51

As above stated, these decisions dealt with the Constitutional provision embodied in Code Section 6443, as above quoted.
Early in the term of the present Attorney-General, Mr. Denny, the question was again presrnted as regarding the validity of a bill appropriating money from the State Treasury, where the Journals showed a failure to comply with the Constitutional requirement provided by Section 6441, Parks' Code, where the Journals showed affirmatively that the ayes and nays had not been taken or recorded, notwithstanding the fact that in the House the ayes and na:vs were called for and refused. It was in this case contended that the Act in question was in contravention of and in violation of the provisions of another Constitutional clause, to-wit: Code Section 6441, which provides:
a "No bill or resolution appropriating money shall become
law unless upon its passage the ayes and nay~, in each House, are recorded."
Under a stringent pr~wision of this kind (and it is really impossible for the human mind to conceive of language which could be stronger than this) the Supreme Court of Georgia in the case of Dorsey, Governor vs. \Vright, Comptroller-Ge~ eral (See 103 Southeastern Reporter, page 591), holds: That the general legal principle announced and applying in the case of The Atlantic Coast Line Railway Company vs. The State, above cited, was applicable in the then instant case of Dorsey, Governor, vs. Wright, Comptroller-General, and that the decision in The Atlantic Coast r~ine case was controlling.
This, therefore, settles the question, as regards the Constitutional qurstion shown in Section G443 with rrganl to g"'lleral bills, and Section 6441 with regard to hills appropriating money.
The increase of the salary of the. Attorney-General "as, however, under the Constitutional section as shown by 6:>3J, Parks' Code, which, however, embodies identically the same principles as eovered by the decisions in the four cases cit .>d. It is absolutely controlling in every detail hy the decisions of our Supreme Court in said fonr cases.
52

without going any further, therefore, it would seem manifest that our Supreme Court is definitely, positively and unequivocably committed to the enrolled bill doctrine, and that under no condition or provision of the Constitution of- Georgia will the Supreme Court of Georgia allow the Journals looked to, or placed in evidence, to determine the validity of an enrolled bill, but it is held that the bill itself is conclusive of the validity of its passage through the Legislative Department of the State.
Under the decisions of the Supreme Court dealing with the Constitution as hereinabove cited, it would be impossible for the Supreme Court to make an exception with reference to the bill increasing the salary of the Attorney-General, the language of Constitutional section 6534, controlling the increase of salaries, being manifestly not so strong, mandatory, or directory upon the latter, as is the language of these Constitutional sections 6443 and 6441, in construing which the Supreme Court held so definitely that the enrolled bill is conclusive, and that the Journals may not be consulted in evidence to establish any failure of proce_dure or invalidity in enactment.
However, and in addition to the finding of our Supreme Court touching the question of the theory of the enrolled bill, it will be noted that the provision of Code section 6534, regarding- the increase of the salary of the Attor:ney-General is that:
"The General Assembly may, at any time, by two-thirds vote of each branch, etc. etc. etc. etc."
Article 5, Section 1, of the Constitution of the United States provides:
"That Congress, whenever two-thirds of both houses shall deem it necessary, etc. etc."
In a recent decision of the Supreme Court of the United States in seven cases there pending, the question was raised that this language in the Constitution of the United States, which is almost, if not altogether identical with that of our Constitution, as quoted above (Code Section 6534) makes a t."o-thirds vote of the total membership of each house, but the
53

Supreme Court of the United States in said seven cases by its opinion ruled and held that the language had reference to a two-thirds vote of those members of both houses who were present at the passage of the Resolution, or, in other words, held that this provision in the National Constitution means a two-thirds vote of a quorum of each branch of the National Assembly. See:
State of Rhode Island vs. Palmer, Attorney-General, et. al. 40 S. C. R., page 486.
State of New Jersey vs. Palmer, Attorney-General, et. al., 40 S. C. R., page 486.
Dempsey vs. Boynton, United States Attorney, et. al, 40 S. C. R., page 486.
Distillers and warehouse Company vs . Gregory, United States Attorney, et. al., 40 S. C. R., page 486:
Christian Fergenspan vs. Bodine, United States Attorney, et. al., 40 S. C. R., page 486.
Sawyer, et. al., vs. Manitowoc Products Co., 40 S. C. R., page 486.
St. Louis Brewing Association vs. Moore, Collector, et. al., 40 S. C. R., page 486.
In the opinion rendered by the Supreme Court in. the above case the Court says :
"The two-thirds vote in each house, which is required in proposing amendments is a vote of two-thirds of the members present-assuming the presE;Jnce of a quroum-and not a vote , two-thirds of the entire membership present and absent."
And the Court cites the following:
Missouri Pacific Railway Co. vs Kansas, 248 United States, page 276; 39 Supreme Court, page 93; 63 Law Edition, page 239; 2 A. R. L., page 1589.
As shown above, the language of the United States Consti_tution, and of our State Constitution are almost identical.
Applying, therefore, the reasoning of the United States Supreme Court decision to the instant provision of the Constitution of the State of Georgia, it would seem that the Legislature., of Georgia, has fully complied with the mandate of our Constitution, and that the bill increasing the salary of the At-
54

torney-General was clearly passed by a two-thirds vote, a quorum of both houses being present at its passage.
Therefore, upon either the enrolled bill theory, or upon the latter question suggested that there was in fact no ,violation of the Constitution shown by the Journals, it is, as decided by the Supreme Court of the United States, manifestly apparent that the present incumbent Attorney-General, is entitled to receive, and have paid to him, tllE' compensation provided by the legislative ..,\ct of Aug-ust 18, 1D19.
Respectfully submitted, R. A. DENNY, Attorney-General.

The Governor of Georgia is without authority to interfere with Primary Elections or their results.

l
Hon. Hugh ir. Dorsey, Governor,

October 18th, 1920.

State Capitol, Atlanta.

l\Iy Dear Sir: I am in receipt of yours of the 15th inst., in

which you state that 1\'Ir. A. S. Howell, of Ingleside, Georgia,.

has made complaint to you that in the primary of September-

8th, he was defeated for the office of County Superintendent of'

Schools, by reason of the fact that th,~ voters of the town dis-.

tricts were allowed to vote, and requesting me to advise you as:

to whether or not the matter is one in which vou should take

action. :..



While it is true .that the Act of 1919, Section 147, page 349, provide~ that the voters in independent school systems. of any

county, shall not vote in any election for Superintendent of

County Schools, still I am of the opinion that this is a matter

in which you, in your offcial capacity, have no right to take

any action. 'The Supreme Court has repeatedly held that mat-

ters of primary elections are political, and that the Legis-

. lature alone has the right to prescribe rules for the determina-

tion of contests of such elections, and that in the absence of

legislative enactment specifically conferring jurisdiction on

the courts, and that the courts cannot assume jurisdiction.

Applying the same rule to the Executive Branch of the Gov-

55

~rnment, I find no provision of our law authorizing action on the part of the Governor in the conduct of contests of any primary election, and I am, therefore, of the opinion that there is no actinn that can be taken by you in this matter.
Very respectfully yours, GRAHAlVI WRIGHT, Assistant Attorney-General.
The District Grand Lodge, No. 18, Odd Fellows of America, if an Insurance Order, .comes directly under charge of the Insurance Commissioner.
October 18th, 1920. Hon. Hugh M. Dor:;;ey, Governor,
State Capitol, Atlanta. .M:y Dear Sir: I have carefully gone into the file in the matter of the DiRtrict Grand J;odge. No. 18, Odd Fellows of America, in line with our conversation of this morning. It seems to me that the application for leave to bring Quo Warranto is based wholly upon the changed status of this Company since the decision of the SuprPme Court in the 146th Georgia, brought about hy the amendments to the charter of this Company. In the 146th Grorgia, the Supreme Court held this Company to he a Fratrrnal Bt>nEfit Association. The whole question is now Rummed up in paragraph 12 of the application addrPRsed to you, wherein it is alleged that the Company is now, by reaRon of the amendmrnts to its charter, a l\Iutual or Asse:;;sment InRurance Company. As I understand this case, this is the whole issuP. and it seems to me that it could he settled much more easily by other proceedings than Quo Warranto. If their contention be true that this Company is now a lVfutual Asses:;;ment Company, they are required to be licensed (Code Section 2535) and doing business without such license would be illegal. The question could he very clearly raised either by i;njunction against this Compan:v, on the part of the Insurance Commissioner of the State of Georgia, if he is satisfied that complainant:;; are correct in their contention, to en-
56

join- them from carrying on an insurance business of this character without a license, or the whole question could he adjudicated and determined by a criminal prosecution of any {)fficer, or Agent of this Company, under the provision of Criminal Code Section 626. In my opinion, either of these methods could be used to raise and adjudicate the questions involved as effectually as a proceeding by Quo Warranto.
I am further of the opinion that if the complainants are right in their contention that this Company is a l\Iutual Assesment Company, the entire matter falls properly under the jurisdiction of the Insurance Commis.~ioner of the State of Georgia, for such direction as he may sec fit to giw it.. Section 626, of the Criminal Code, referred to above, provides in terms that it is the duty of the Insurance Commissioner to see that all pe:csons violating the provisions of that Section are prosecuted. Section 2412 (a) Parks,. Code, makes it the duty of the Insurance Commissioner of the State of Georgia to see that all laws relating to insurance are enforced. As the "hole -case. of the complainants is based upon the alleged violation of the insurance laws of the State of Georgia, I am clearly of the opinion that the matter is one primarily for the attention of the Insurance Commissioner.
I trust, dear sir, that this cowrs your inquiry fully, and beg to remain,
Very respectfully yours, GRAHAM WRIGHT, Assistant Attorney-General
October 18th, 1920. Ron. Hugh l\I. Dorsey, Governor,
State Capitol, Atlanta. My Dear Sir: I have before me the application of Bob Holcomb, for pardon, or commutation of sentence, and from a reading of this, I take it that the facts are, briefly, as follows: Holcomb, on November 24th, 1919, plead guilty in three -cases. In: case number one, he was given a fine of $50, awl all costs, and was sentenced to serve tweh-e months in the chain gang, with the proviso that at the expiration of three months
57

he might serve the remainder of the sentence outside the chain-: gang, so long as he made a good citize11. In case number 2,. he was fined $25.00, and costs, and sentenced to serve ten months, to begin at the expiration of the sentence in case number one. He was allowed to serve this sentence outside the chaingang upon the same condition as in case number one.
In case number three he was fined $50.00, and all costs, and sentenced to serve twelve months to commence after the expiration of sentences one and two, outside the chaingang, upon the same conditions as above.
He paid these fines under each of the three sentences on November 24th, 1919, and served out the sentence of three months in case number one, and was then released on probation.
On April 15th, 1920, he was committed to the chaingang for a breach of probation by J\L C. Tarver, Judge, this order providing ''It is ordered that he be permitted to serve the sentence in numbers two and three to the August term, 1919,. simultaneously, beginning as of .date 0f his reception in the chaingang under this order and judgment, and continuing for a period of twelve months from the 24th day of February,. 1920. The sentence in number two is to expire in ten monthsc from said date, and the sentence in the case above stated, (which was number three) is to expire in twelve months from said date.'' Under this order he was placed in the chaingang of Habersham County, and on October 12th, 1920, he was ordered released upon habeas corpus by Judge J. B. Jones.
He was then immediately re-arrested, upon warrant of Judge Tarver, and is now confined in \Vhitfield County.
The petition for habeas corpus showed that no attack was. made upon sentence number two, and the whole attack was made upon sentence number three.
Under the order of Judge Tarver the sentence in case number two was effective to December 24th, 1920, and, upon this. basis alone, as this sentence was not attacked, I am unable to see how the writ could have been granted on October 12th, by Judge Jones. Neither do I see any basis for the attack made upon the sentence in case number three, for, while this sentence provides: ''The defendant may be discharged at any time upon the payment of said fine and the costs,'' still,
58

from a reading of the entire sentence it is manifest that this.

deals with his physical discharge, or release, from cQstody, to

beginning the service of his term on probation and not the dis-

charge of all other penalty. To show that this is true the

sentence reads ''do pay within three days a fine of $50, and all'

the costs of this prosecution, and serve twelve months in the-

cha.ingang, provided that he may serve same outside the chain-

gang so long as he makes a good citizen after paying said fine

and costs.''

, (:

. A sentence must be construed in its entirety. V'oiume 16,.

C. J., page 1313.

However, in the absence of an appeal from the :(inding of

Judge Jones, I am of the opinion, that his judgment is con-

clusive .upon the question of the validity of sentence number

three.

Though, so far as I can find the question has never been

positiyely determined in Georgia, the rule of the weight of.

authority, based upon reason, seems to be as stated in 21st

Cyc., page 349.

"The discharge of the prisoner on habeas corpus will, as a general rule, in the absence of statute, constitute a conclusive determination that at the time of his discharge he was improperly restrained, and he cannot be arrested a second time without new circumstances to authorize the arrest, which did' not exist when the discharge was granted."

Applyinl!' this rule, it would seem that as sentence number two was not inissue in this case, he could be la,dully detained under that sentence until December 24th, 1920. But that the adjudication is conclusive as to sentence number three, and' that he could not be lawfully held thereunder.
It would seem, however; as the question has never been definitely determined by our Courts, that his proper course would be to proceed by habeas corpus and appeal rather than to apply for pardon, or commutation. Under the view I have taken of this case, of cou~se, a habeas corpus cou~d not be maintained by him until after the 24th of December, 1920.
I trust have covered the matter fully, and beg to remain, Very respectfully yours, GRAHAM WRIGHT, Assistant Attorney-Generar

59

No Officer, Agent, Director or Employee of a Bank may borrow money from said Bank for any partnership in which he is interested, without both the written consent and security provided for in Sees. 11 and 12 of Art. 19 of the Banking Act.

October 23rd, 19,20.

Hon. T. R. Bennett,

Superintendent of Banks, State Capitol.

Dear Sir: I have before me the letter of the Newnan Bank

& Trust Company, referred to me by you, in which they re-

quest a construction of Sections 11 and 12 of Article 19 of the

Banking Act of 1919, with reference to loans to a partnership,

{)ne of whose members is an officer, or director, of the Bank.

Section 11 prohibits any officer, agent, director or employee

making any loan to himself directly or indirectly, or to any

firm or partnership of which he is a member, witliout the con-

sent in writing of a majority of the Board of Directors, or

Committee in charge.

Section 12 prohibits any bank from making any loan to any

officer, agent, director or employee, except upon good collat-

al or security and then only when the 'lame has' been approved

h~ a majority of the directors, or a Committee thereof.

It will be noted that in Section 12 partnerships are not re-

ferred to.

, ,

Section 21, of Article 20, of this Act makes it~ misdemranor

for any officer, director, agent or employee of the bank to bor-

row for himself directly or indirectly for any firm or partner-

ship of which he is a member, without compliance with Sec-

tion 11 above referred to "Qr who shall in like manner pro-

cure such loan which is not secured in the manner provided

hy Article 19, Section 12. ''

By Section 22 of Article 20, it is made a misdemeanor for

any officer, or Agent of any hank to lend to any other officer,

director, agent or employee, either directly or indirectly any

money without compliance with the provisions of Sections 11

and 12 of Article 20.

Construing tlw;e four sections together, I am of the opinion

that no officer, agent, director or employee of any bank can

borrow money for any partnership in which he is interested

without both the written consent provided for in Section 11,

60

and the security provided for in Section 12, of Article 19 of the Banking Act. If there is any further information you may desire in this matter, please advise me.
Very respectfully yours, GRAHAM WRIGHT, Assistant Attorney-General
Wherever any special grant or privilege occur-s in any Bank Charter granted since the Code of 1863 conflicts with any provision of the Banking Act of 1919 or any Amendement thereof, the latter law will operate as a repeal of the conflicting charter provision, and any rules made in pursuance thereof.
October 23rd, 1920. Ron. T. R. Bennett,
Superintendent of Banks, State Capitol. Dear .Sir: Replying to your verbal request for an opunon , with regard to the effect upon Charters of Banks, previously granted by the Legislature, or the Secretary of State, prior to the enactment of the Banking Law of 1919, I beg to say: The famous Dartmouth College case (4th L. Edition United States Supreme Court, page 629) the Supreme Court of the United States held that a grant of a charter by a State to a corporation conferred a vested right which could not be impaired by subsequent legislation without violating the provisions of the Constitution of the United States. To meet the conditions brought about by this decision there was inserted in the Code of the State of Georgia in 1863, a provision, which is now embodied in Code Section 22:39 in the following language:
"In all cases of private charters: llereafter granted, the State reserves the right to withdraw:the franchise unless such right is expressly negatived in the charter."
By this provision, as construed by the Supreme Court, the State reserved to itself the right to revoke, change or modify any charter granted by it, and as all charters are granted subject to flxisting law this law became an integral part of any charter granted subsequent to the Code of 1863. \Vest End,.
61

-etc. vs. Atlanta, etc., 49 Ga., 151 (5). This has been repeatedly TUled by the Supreme Court o Georgia, and likewise by the Supreme Court of the United States. See:
West End, etc. vs. Atlanta, etc., 49 Ga. p. 151 (67). Georgia vs. Railroad Co., 60 Ga., p. 268. Railroad Co. vs. Georgia, 98 U. S., p. 359. Davis vs. Vernon, 103 Ga:, p. 491. Also see citations under section of Parks Code, set forth above.
Therefore, wherever any special grant or privilege occurs in any charter granted to any Banking Corporation since the Code of 1863, is in conflict with any provision of the Banking Act of 1919, or any amendment thereof, the later law will operate as a repeal of the conflicting charter provision, and any rules made in pursuance thereof. See \Vest End, etc. vs. Atlanta, etc., 49th Ga. 151 (8).
I trust, dear sir, that I have covered the question fully, and beg- to remain,
Yours very truly, R. .A. DENNY, .Attorney-General.
Women eligible to hold office in Georgia, when.
October 23rd, 1920. Hon. Hugh l\L Dorsey, Governor,
State Capitol, .Atlanta. lVIy Dear Sir: Replying to the inquiry of the 22nd, inst., :addressed to you by the Ordinary of Columbia County, and -your request for an opinion upon the questions therein involved, as to whether or not it is legal for a woman to hold a public offce, I beg to say: Under the principle apnounced by the Supreme Court of Georgia in the case of white vs. Clemons, 39th Georgia, page '232, women are eligible to appointment or election to public offices in Georgia, provided they are not otherwise rendered ineligible by any of the provisions of Code Section 258.
Very respectfully yours, GRAHAM \VRIGHT, Assistant Attorney-General
62

-The Pre>-hibition laws of Georgia, how enforced, and the ri1jht of the State's Executive to interpose therewith.
October 25th, 1920. 1Ion. Hugh :M. Dorsey, Governor,
State Capitol, Atlanta. My Dear Sir: I have before me the communication of the 9th, inst., from Ron. Murray l\L Stewart, Mayor of Savannah, calling attention to the violation of the prohibition laws of the :State, in the City of Savannah and County of Chatham, and -requ,esting information as to the duty of the County in the enforcement of these laws, which letter was referred to me with the verbal request that I advise you as to your duties in the premises. In response thereto, I beg to say: The Constitution of the State of Georgia, by Parag-raph 12, Section 1, Article 5, provides, among other duties of the Governor:
"He shall take care that the laws are faithfully executed, and shall be a conservator of the peace throughout the State."
By Paragraph 11, Section 1, Article 5, of the Constitution of Georgia, the Governor is made the Commander in Chief of the Army and Navy of the State and the Militia thereof.
Code Sections 1434 Penal Code and 141 Civil Code provide the methods and conditions under which the Governor may call out and use the Militia.
It is clear, from the letter before me, that none of the conditions set forth in these statutes now exist in Savannah.
From a reading of these laws, four things are clear: First-That it is made the duty of the Governor to see that the laws of this State are enforced. Second-That the only instrumentality provided the Governor with which to enforce the law is the Militia of the State. Third-That the Legislature of Georgia has confined the use of this instrumentality to certain conditions. Fourth-That it is the policy of the. law of Georgia that the Governor shall work through and in lwrmony with the local constituted authorities in the enforcement of the laws. This question of the authority of the Governor in the en:forcement of tht> la,~s was elahoratt>ly discussed in an opinion
6,'),

of .Attorney-General J. l\I. Terrell, in 1894, Volume 1, Opinions: of Attorney-General, page 214, and by Attorney-General Hart and .Attorney-General Clifford Walker, Opinions of AttorneyGeneral, 1904-17, page 123; Opinions, 1918, page 48; see also page 35. It will be unnecessary to again review this matter; and I merely state my conclusions.
The Governor of Georgia is under the duty: to' 'see that the laws are enforced, but in aid of this duty, he is given no authority or instrumentality aside from the local authorities, save the use of the Militia. Its use is restricted by the Legislature to certain conditions which do not. exist in Savannah.
The policy of the law being as stated above, that the Governor shall act through the local officials in the enforcement of law, it is clear that it is not only the right but as well the duty of the Governor to direct the attention of the local judges, solicitors, sheriff, police and other officials to any breach of thP law which may he broug-ht to his attention, and to direct and request that they take steps toward the enforcement of such laws in the manner provided-by law, and while disregard thereof would not he, in itself, a -violation of their duty, still, should the condition remain unchanged and should they faii to enforce the law, it would then he. proper for the Governor to submit the facts to the r~egislature, for such action as it saw fit to take.
Referring now to the letter of the l\T~yor, in which he states:
"I desire information from you us to the function of the county, in the enforcement of these laws."
This can probably be answered best by giving ydu a brief summary of the machinery provided for t~e enforcement of such laws, .from among which the Mayor can doubtless find the information ~vhich he desires.
ThP administration of the law, and the enfoicenient thereof locally may he stated generally as bein~ vested ill t}H; Courts, solicitors-general, gra11d juries, sheriff, county poli'ce and city police.
It is the duty of the courts to admini~ter and construe the laws, enforcing- them, and after conviction, hy the imposition of sentence. It is in no sense the duty of the court to prOSP.-
64

cute for the violation of any law; in faet, for the Judge to do

so would be to disqualify him on the trial of the case. And

yet, with reference to the prohibition laws, it is specifically

the duty of the Judge to especially give in charge the anti-

liquor laws to the grand jury, and to instruct them to investi-

.

gate and return indictments against all persons violating such

laws.

Acts Extraordinary Session, 1915, Page 84.
The Solicitor-General is under the duty to prosecute all persons indicted before the courts, and to represent the State in such prosecutions. It is specifically made his duty, upon receiving information giving him probable cause to believe that there has been a violation of any of the statutes named (prohibition laws) to proceed to lay the matter before the grawl jury, or to institute a criminal prosecution against said party, if he is willing and able to make such affidavit, or, if not, he must superintend the preparation of papers, and the institution of the prosecution, if any citizen is willing to make an affidavit for the institution of a criminal prosecution. He is further authorized to institute proceedings by injunction to abate all :'blind tigers'' as a nuisance.

Acts Extraordinary Session, 1915, Page 86.
The grand juries are under the !iuty of indicting any person violating these laws where the evidence constitutes a sufficient basis. In the enforcement of the prohibition laws, it is specifically provided that they may subpoena witnesses and require them to testify generally as to any offense within their knowledge, committed within two yearc;, by any person, with" out specifically interrogating the witness as to any particular offense.
Acts Extraordinary Session, 1915, Page 84.
It is the duty df the sheriff to preserve the peace, to make arrests and specifically with reference to these laws ''Sheriffs are charged with the duty of being on the alert for violation of any of such statutes and with co-operating with the solicitors and prosecuting attorneys in bringing violators to justice."

65

Acts Extraordinary Session, 1915, Page 87.
It is the duty of the county police to preserve peace and or-
der, and to' detect any violation of the laws, and to enforce such laws by prosecution or arrest:
The police of the City of Savannah are under a similar duty, and in this connection, it might not be amiss to state that the Mayor of Savannah is by law the head of the police department of that City, and is specifically given authority to re:move any member of the police force for neglect of his duties.
The police of Savannah are not strictly local or city officers. As stated by Justice McCay in the case of Cook vs. Macon, 54th Georgia, page 468:
"He (a policeman) is a peace offieer; his duties do not lie in the lin'e of special private duties or rights of the corpora tion, but they are duties connected with the public peace, in which the State is interested and m a very wide sense he is a State officer."
And it cannot, therefore, be said that the enforcement of State laws is not within the scope of th('ir duty.
In addition to these, the laws of Ge0rgia likewise provide, through Civil Courts, a means of suppressing the sale of liquor, which is available to any citizen. Code Section 5335 provides that any place _commonly known as "Blind Tiger'' may be enjoined as a nuisance upon the application of any citizen of the County where the same may be located. Section 5336 and Setion 5337 provide for the procedure in such cases. And by the Acts of Extraordinary Session, 1915, page 80, Section 4, a similar remedy is provided, which may be brought by any Solicitor-General, by the Attorney-General or by any citizen of the County. Under this law, you would be authorized to require the Attorney-Gene~al to bring such proceeding, if you , were satisfied that the conditions were within the definition of .a uBlind Tiger" laid down in that Act.
This, stated briefly, is the machinery provided by the law "for the enforcement of the prohibition laws.
The most potent of all forces, howe':er, in the enforcement of laws is that arising from the moral and legal duty of the ei'tizens of the County to uphold the laws of the State and to
66

enforce the same, and a disregard of this duty makes the en-

forcement of laws a difficult matter in any community.

I trust that I have covered fully all of the matters submit-

ted, and I beg to remain,

'

Very respectfully yours,

.

GRAHAM WRIGHT,

Assistant Attorney-General

The Appropriation provided under Sec. 7 of the Act of. Aug. 17, 1920, regulating sale, etc., of Calcium Arsenate, is not continuous.

October 26th, 1920. Ron. Hu~rh l\L Dorsey, Governor,
State Capitol, Atlanta. My Dear Sir: I am in receipt of yours of the 18th instant, requesting an opinion as to whether or not Section 7 of the Act approved August 17th, 1920, being entitled, "An Act to regulate the registration, branding, sale and analysis of calcium arsenate, etc,'' is a continuous appropriation, or merely an appropriation of the sum therein named, and as to whether or not the sum thereby appropriated is available immediately. In response thereto, I beg to say: I am of the opinion that the appropriation is not a continuous or annual appropriation, but is a specific appropriation of the sum of Five Thousand Dollars, and no more, either at the present, or at any future time, and that the sum appropriated is available immediately.
Yours very respectfully, GRAHAM WRIGHT, Assistant Attorney-General.

The confinement of children under sixteen years o,f age in the jails or lockups in this State is prohibited by the Statutes of Georgia, and the establishment of Juvenile Courts in the Counties of the State is not discretionary, but obligatory.

October 27th, 1920. Ron: Hugh M. Dorsey, Governor,
State Capitol, Atlanta. My Dear Sir:. I have before me the communication of the
Boa;rd of Public vVelfare, referred to these offices by you, re-
67

questing an. opinion from the Attorney-General as to the confinement of children, under t4e age of sixteen years, in the common jails of the Counties of the State;
By the Act approved August 16th, 1915 (Acts of 1915, page 35) the Legislature of Georgia created in the Counties of this State having a population of sixty thousand, or 'more, Juvenile Courts. The jurisdiction of these Courts, by the terms of this Act, is extended to all children violating any Municipal or State law, except those crimes punishable by death or life imprisonment. By Section 14 of this Act it is provided that whenever any child, less than sevente~n or eighteen years of age, according to sex, is brought before a Magistrate, su_ch l\Iagistrate shall transfer the case to the Juvenile Court by an order directing that said child shall be taken forthwith to the detention home. Section 18 of the Act provides for the establishment of the detention home. Section 19 of the Act pro vides that no child coming within the provisions of this Act shall be detained in, or committed, to a jail, or common lockup, or any other place where such child can come in contact, at any time, or in any manner, with adults convicted or under arrest.
By this Act of 1916, page 58, the provisions of this law are extended to all counties throughout the State, and it is again provided in that Act that the children, under the provisions thereof, shall be kept separate and removed from any jail, lock-up, or other place of imprisonment where adult~ are confined.
This Act further provides that "the Judge of the Superior Court shall designate an existing Court of record to act and be known as The Juvenile Court of said County"-the powers, authority, _jurisdiction and procedure of the same shall be established. The Judge of tlie Juvenile Court, under this Section, shall make arrangements for the proper detention of children under this Act in surroundings, separate and removed from any jail, lock-up or other place of imprisonment where adults are confined.
Under these laws it is not a matter of discretion with the Judge of the Superior Court as to the designation of a children's court, but it is a mandatory duty upon him. This is
68

manifest from that portion of Section 3 of the Act of 1916, which reads :
"It is the purpose of this amendment to make state-wide the benefits of the Juvenile Court.''
Further, when such Court has been designated by the Judg~ of the Superior Court, the Judge of the Court designated, cannot refuse to act, as the duties of the Juvenile Court under these Acts then becomes as much a part of his office as any other duties imposed by law, and the fact that no compensation is provided does not alter this condition.
While there is no remedy available to compel the Judge of the Superior Court to designate the Court which is to act as the Juvenile Court, as mandamus is not available, still I am sure that the Judges of these Courts will perform their duties when their attention is directed to the law.
The performance of the ministerial duties imposed upon the Court designated as the Juvenile Court can be enforced by mandamus.
The Supreme Court has passed upon these laws but once, in the case of:
williams vs. Davidson, et. al., 147 Ga. 491. in which case the laws were held not to conflict with Article 6, Section 4, Paragraph 1, of the Constitution of Georgia. The Supreme Court has never passed upon or decided whether these laws are exclusive, and the jurisdiction conferred on the Juvenile Courts divests the other Courts of jurisdiction to try and punish children within the classes referred to 1n these Acts, but is clearly manifest from the provisions of these .Aets that children under the ages specified shall be dealt with in these Courts, and that under no condition shall th~ children be confined in the common jail unless this be found necessary by the Judges of the Juvenile Courts.
If there is any further information desired in this matter, please advise me.
Yours very respectfully, GRAHAM WRIGHT, Assistant Attorney-General.
69

Legislation restricting cotton acreage In G80rgla, would be unconstl
tutional.
October 27th, 1920. Ron. Hugh :M. Dorsey, Governor.
State Capitol, Atlanta. l\fy Dear Sir: Replying to yours of the 27th instant, requesting opinion as to whether a law restricting the cotton acreage in the State of Georgia would be unconstitutional, I beg to say: That were such legislation proposed for the purpose of affecting the quantity of cotton to be marketed, or the price
thereof, it would be against public policy, and such a law
would be unconstitutional both under the State and Federal Constitutions, and would constitute the taking of property without due pracess of law.
A denial of due process of law results from any statute which takes away any of the essential attributes of private property. See, for full discussion of the questions involved:
Volume 12, Corpus Juris, p. 1214, et. seq. It is really inconceivable that there could be a more essential attribute of private property than the right, in the owner of' such property, to use same for the production of such commodities as he may deem best. The suggestion is so manifestly unconstitutional as to require no extended discussion. Should a law be passed, having for its object the suppression of crop infection, or parasite, or the .prevention of the spread thereof, if it is apparent that a necessity exists for such restriction, and if such restrictions are reasonable for the purposes for which they are intended, then such law wouid fall within the police power of the State, and would not be unconstitutional. With reference to the second portion of your letter, in which you request an opinion as to tlH~ right of the Board of Entomology to restrict the cotton acreage for the purpose of exterminating the boll weevil, I am of the opinion: That no such authority exists in this Board. It has the authority, after the discovery of the boll weevil in the crop of any person, to require its eradication, or the destruction of the crop, but I am unable to find any authority granted this Board to restrfct the planting of cotton.
70

I trust I have covered the above matters fully, and be~ tnJ remain,
Yours very respectfully,
GRAHAl\:l.WRIOHT~
Assistant Attorney-General. .

Soliciting Agen~ of the A. T. &. S. F. R'y. Co., not subject to Occupation Tax in Georgia.

November 3, 192.0, Hon. William A. Wright, Comptroller-General,
State Capito~, Atlanta. Dear Sir: I am in receipt of yours of the 28; ultimo, enclosing a communication from Judge G. T. Tun11; with regard to, the question of taxation of the Soliciting Agent of the Atchison, Topeka & Sante Fe Railway Company, under Sectioh 45 of the General Tax Act of 1918, and, in your letter requesting,: an opinion as to the liability of this Agent for the Occupationt taxes imposed by that Act.
In the case of McCall vs. California 136 U. S. page 104, 34th
Law Edition page 391, the Supreme Court held that the Agent of the Railway Company, which had its principal place of bus.-
iness in Chicago, and operated a: line of Roads between Chica~
and New York, and whose duty it was to solicit passengertraffic over such roads in the City of San Francisco, California was engaged in interstate commerce and was not subject to a license or occupation tax imposed by the City of San Francisen.
It does not appear from the letters before me whether Oll." not 1\:l.r. Curtis sells any transportation over the lines of theA. T. & S. F. R'y Company, but, in the event that he does not,.. I am clearly of the opinion that the proposition submit,ted is,; controlled by the case cited above, and that this Agent would!.L not be subject to the tax imposed by Section 45 of the GeneraD. Tax Act of 1918.
I trust I have covered the matter fully, and, in compliancewith your request, I am returning you herewith the letter of Judge Tunell.
Yours very truly, GRAHAM WRIGHT, Assistant .Attorney-General_

-;.:.

'Z1

.t.J11der the Act of 1920, known as the Paint Bill, it becomes the duty of the Chief Food Inspector and Chief Drug Inspector to carry out its provisions without additional compensation.
November 4th, 1920. Ron. J. J. Brown, Commissioner of Agriculture,
State Capitol, Atlanta. Dear Sir: I have yours of the third instant, requesting an {)pinion upon the construction of the Act approved August 17, 1920, and known as the "Paint Bill.'' Under Section seven of this Act it is made the duty of the State Pure Food & Drug Inspector to enforce the provisions of the Act. While it is true that this office was abolished; and the offices of Chief Food Inspector, and Chief Drug Inspector were created in lieu thereof, I am of the opinion that it will be the duty of both of these officials, under the provisions of this Act, to enforce same. I am further of the opinion that this Act makes such enforcement obligatory upon those officials. The law makes no provision for the employment of an Assistant. to carry out the duties imposed by this Act, and it is my opinion that the employment of such an Assistant for either of these offices for this purpose would not be lawful. It was manifestly the intent of the Legislature that the duty of enforcing this law should be carried out by the existing officers .through existing m~chinery, and without additional expense to the State.
Yours very respectfully, GRAHAJU WRIGHT, Assistant Attorney-General.
Appropriation Act cf 1919 makes provision for $700 for year 1920 and 1921 each for furniture replacement in House and Se1ate Chambers, same to be equally divided.
November 9th, 1920. Hon. Hugh .M:. Dorsey, Governor,
State Capitol, Atlanta. Dear Sir: Replying to your inquiry of the second instant, :asking for an interpretation. of Division C, Subsection 2, item
72

H, page 25, of the Acts of 1919, in which an appropriation is

made for new furniture and replacements in the House and

Senate Chambers, each for the sum of $350, to be immediately available, I beg to say:

A specifically careful reading of this item H shows that

the appropriation is for $350 for the House and $350 for the

Senate chamber.

'

This is a portion of the General Appropriation Bill, covered

by the Acts of 1919, pages 7 to 26, both inclusive.

The openng paragraph of the Act (See page 8) says that:

"The sums of money hereinafter set out or so much thereof as may be needed be and the same are hereby appropriated for the fiscal years of 1920-1921, for the business and purposes stated."

Item H (see page 25) clearly makes this an appropriation of $350 for the House, and $350 for the Senate, or $700 shown by that item taken by itself. construing it, however, with the opening section of the Act, as hereinabove quoted (page 8) the queston arises as to whether this is an appropriation of $700, as for the years 1920 and 1921 conjunctively, or for each of these ;years taken disjunctively.
It is my opinion that the appropriation is for $700 for the .above stated years and taken disjunctively; i.e.; $700 for the year 1920, and $700 for the year 1921.
That I am right in this conclusion is borne out by the various items of this general appropriation Act. As an illustration "A" is the salaries of the officers of the Executive Department, but only states the annual sum, showing that the same is to be for each of the years 1920 and 1921. On page 11, .for the support and maintenance of the University of Georgia $95,000 clearly means -for the year 1920 and a like sum for the year 1921. On the same page for the support of the Georgia School of Technology $125,000 clearly means for the year 1920, and a like sum for the year 1921.
And so on down throughout the entire Act the intent of the Legislature is clearly shown that the individual items, as therein set forth, are clearly intended for each of the years l920 and 1921.

. 73

I am, therefore, of 'the opmwn, as above stated, that thC' appropriation Act is for $1,400-$700 for the year 1920, being $350 for the House and $350 for the Senate, and $700 for the past year 1921, to be divided between the two chambers in like manner.
Respectfully submitted, R. A. DENNY, Attorney-General.
Und~r Acts of 1909 and 1918 Local Courity Inspectors are vested with
full authprity to quarantine as well as prosecute for any inter~ terence.
November 9th, 1920~ Doctor Peter F. Bahnsen,
State Veterinarian, State Capitol, Atlanta.
Dear Sir: Replying to your verbal inquiry of this date. with reference to quarantine authority under the tick eradication laws of 1909 and 1918, I beg to say:
That the Local County Inspector, under the terms of the Tick Eradication laws of Georgia is an officer authorized by the Statute law of Georgia to represent the State with full authority to act in accordance with such laws in behalf of the State of Georgia, and, under the Acts hereinabove re- ferred to the Local Inspector has full power and authority to. arrest, confine and treat all cattle in his jurisdiction, and, to that end is invested with full power to place such cattle in quarantine for the purposes stated.
Any person, owner, or individual, interfering with, impeding,. obstructing or resisting such Local Inspector in the exercise of his duties, covered by the Statute, by way of quarantine or treatment of such cattle so arrested and quarantined by him is subject to indictment as for a misdemeanor, and punishable as prescribed by the penal section o:f the Acts hereinabove mentioned. The Acts mentioned are to be found in the Acts.
74

of the Legislature of 1909, pages 131 to 135, and the Acts of

1918, .pages 256 to 259

I have the honor to remain, dear sir,

Very respectfully yours,

R. A. DENNY,

~

Attorney-General.

The full limit orf the powers of the State Board of Entomology as to,
the Boll_ Weevil does not extend to quarantine enforcement.

November 16th, 1920. Hon. J. J. Brown, Commissioner of Agriculture,
' State Capitol, Atlanta.

My Dear Sir: I have before me- your communication of the fifteenth instant, asking that I let you hear from me by noon of this date as to just how far the State Board of Entomology. can go, under the law regulating the powers of this Board with reference to the extermination of the boll weevil. Owing to the engagements that were upon me to-day and yesterday evening from the -office, of the Governor, and elsewhere, I have been unable to make an exhaustive examination intothe matter of which you ask, and I am, therefore, unable to give you such full opinion as you seek and ask for. In fact, I have been unable to find any special powers given the Board of EntomoLogy other than those covered by Parks Code in Chapter 4, Volume 1, section 2120 et seq., and the Act of 1914, page 19.

Under the Code provisions (included in the above reference)

the State Board of Entomology has rather generally full power

to enact and enforce such rules as may seem proper to them,

in connection with the carrying out the purposes and object~

for which it was created. One section of the law provides that

such rules so created by them shall have the same force and

weight as Statutes.



However, I find no special statute, or permission, for the ~tate B<>ard of Entomology to establish quarantine regulations in the regular course of their work; and the full limit of their power being seemingly confined to the discovery of the

76

boll weevil pest in separate and specific instances, and taking hold of same then and there in these individual instances, destroying the crop' and othewise endeavoring to exterminate the evil. This, however, does not extend to quarantine powers.
I think it would be desirable to have some specific legislation on this score.
Vecy respectfully yours, R. A. DENNY, Attorney-General.
Power of the Governor of Georgia unlimited and unrestricted by any agency as to commutations and pardons.
November 16th, 1920. Ron. Hugh :M. Dorsey, Governor,
State Capitol, Atlanta. l\Iy Dear Sir: Referring to your inquiry of the fifteenth instant, I am answering as follows:
"A petition was filed with the Prison Commission asking for the commutation of a life term sentence to twenty years,
in order that there might be an immediate parole."
You ask me to give you my opinion on the above. The power to pardon, in Georgia, is vested in the Governor, by Article 5, Section 1, ~aragraph 12 of the Constitution of the State. (See Parks Code Volume 5, Section 6481). The language of this Section is in part as follows:
"He shall have power to grant reprieves and pardons, to commute penalties, remove disabilities imposed by law, to remit any part of sentences for offenses against the State, after conviction, except in cases of treason and impeachment, subject to such regulations as may be provided by la.w relative to the manner of applying for pardons."
It will be seen that this Constitutional provision, in express terms confers upon and vests in the Governor alone the pardon power.
76

By Article 2, Section 2, Paragraph 1, of the Constitution of the United States, the President of the United States is vested with like power, stated as follows:
"The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into actual service of the United States. He may require the opinion, in writing, of the princ. ipal officer in each Executive Department, upon the subject relating to the duties of their resper.tive offices; and he shall have power TO GRANT REPRIEVES AND PARDONS FOR OFFENSES AGAINST THE UNITED STATES, EXCEPT IN CASES OF IMPEACHMENT."
A comparison of this Constitutional provision of the United States Constitution and the State of Georgia Constitution shows that the pardon power is conferred upon the United States' Executive and the State Executive in almost identically the same terms, being, however, a little fuller, more comprehensive and carrying greater authority to the Governor of the State than is vested in the President of the United States.
A very profound, exhaustive and interesting discussion of the pardon power so conferred is to be found in the 71st United States Supreme Court Reports (4th Wallace) on page 333, being in ;re: A. H. Garland, petitioner. Quoting from the opinion of :Mr. Justice Field:
"The Constitution provides that the President shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment.
"The power thus conferred is unlimited, with the exception stated. It extends to .every offense known to the law, and may be exercised at any time........................ after conviction and judgment. This power of the President is not subject to Legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenses. The benign prerogative of mercy reposed in him cannot be fettered by any Legislative restrictions."
Adopting the above as being the law of our State under our Constitution, I unhesitatingly advise you that you have the right to commute the sentence to twenty years, as set forth in your letters to mefi or pardon absolutely.
77

The creation of the Prison Commission by the Legislature, in no wise curtails the pardon power of the Governor. That Jaw simply directs how applications for pardon may -be made

through the Prison Commission, they merely acting as an ad-

junct to, or assistant of, .the Executive Office. Failure on the part of the Prison Commission to recommend does not at all

interfere with the right of the Governor to intervene and act

independently of the Commission.



An exhaustive and interesting, as well as a well digested opinion -on this subject was rendered on July eighth, 1909, to Governor Joseph l\I. Brown, by the then Attorney-General, our late friend John C. Hart. This can be found in Opinions Of The Attorneys-General of the State of Georgia, from January first, 1904 to January first, 1914, page 117.

This book can be found in these offices, if you desire to

read the opinion.

'

Honorable Clifford Walker also rendered an opinion on this

-subject to Governor Nat E. Harris, under date of January 29th, 1916, which can be found in the volume published by

the State of Mr. Walker's opinions, 1916, page 66.

The above covers fully, I think, your inkuiry, and I have

the honor to remain, dear sir, Very respectfully yours, R. A. DENNY, Attorney-General.

Construction of -apparent conflict between the "Brantley Amendment" and the Brantley Resolution" as enacted and passed by the Legislature of Georgia in August, 1920, and harmonizing election dates as fixed thereby.

December 30, 1920. Ron. Hugh M. Dorsey,
Governor, State Capitol, Atlanta. My dear sir:
Acknowledging receipt of and replying to your inquiry of the twenty-ninth ultimo, wherein you _ask, at" the request of :Messrs. J. K. Larkin, and B. M. Thomas, whether the elec-
78

tion of .a member o the Legislature for the new County of

Brantley, is to be held on December eighth, 1920, in pursuance

to the provisions of the Constitutional Amendment creating

the Comity of Brantley, or whether said electien is to be held on the first Tuesday in January 1921, as prescribed by, and

.

in accordance with the Resolution to amend the Constitu-

tion so as to provide a new apportionment among the sev-

ral Counties of the State then existent, and as the same may

be hereafter created so as to define the new legislative rep-

resentation in the Legislatures to follow: I beg to say;

The enrolled bill as dep'osited in the office of the Secretary of State shows that the proposal to amend the Constitution of the State so as to create the County of Brantley was first introduced in the Senate on July 14, 1920, passed the; Senate by the necessary Constitutional majority on July 21, 1920, went to the House, where it was read the first time July 23, 1920, and was passed in the House on July 27, 1920, by the requisite Constitutional majority; was approved by the Governor on August 14, 1920.

The enrolled "Resolution," as deposited in the office of the Secretary of State; shows that the proposal to amend the Constitution relative to the Reapportionment of l\Iembers of the Legislature for the several Counties of the State, was first introduced in the House on August 2, 1920; passed by the necessary Constitutional majority on, August 4, 1920, and went to the Senate and was read the first time on August 9, 1920, and was passed in the Senate on August 11, 1920, by the requisite Constitutional majority, and approved by the Governor on August 17, 1920.

For the purpose of this opinion the Constitutional amendment creating the County of Brantley will hereinafter be designated as the "Brantley Amendment" and the Resolution reapportioning the Legislative members will be designated as the '.'Reapportionment Amendment.''

Both of the above proposed Amendments to the Constitutirm were regularly advertised by the Executive of the State, as provided by law; were regularly adopted by vote of the prcple in the general election held on November 6, 1920, and

79

both were declared ratified as Amendments to the Constitution, of. Georgia in the proclamation of the Governor of Georgia, dated November 17, 1920.
The "Brantley Amendment" has definite and specific provisions with reference to the manner, time and place of holding its first election for all its County Officers, including its members of the House of Representatives of the General Assembly for the Term of 1921-22. (See Section 1, Brantley Amendment).
The "Reapportionment Amendment," by Section 1, provides a ne'lv apportionment of the members of the House of the General Assembly of Georgia, and, by Section 2, it provides that when said Amendment has been agreed to and ratified by vote of the people and confirmed by proclamation of the . Governor that all new Counties created by the General Assembly (which includes the County of Brantley) should hold an election in each of said Counties on the first Tuesday in January 1921, under the laws now governing similar elections, for members of the General Assembly.
QUERY: Which Amendment controls the County of Brantley?
The conflict is apparent; both Amendments were proclaimed as a part of our Constitutional Governm~nt on the same date. The "Brantley Amendment" is complete within itself, and provides everything necessary for the new County, as regards the election of its member to the next General Assembly, this provision having been made as a necessary part and incident to the gist and purpose of the Act, or Amendment. It was not only incident to said Amendment, but pertinent thereto, and an integral and necessary part thereof.
The ''Reapportionment Amendment'' was primarily intended, as shown by its context, to provide only for a reapportionment of the members of the House of Representatives of the General Assembly and a provision for representation therein by the new Counties. The .prime object of said Resolution can be said to have been directed to the matter of reapportionment, and the election feature, as provided thereby, was not, there-
80

fore, integral to said Proposal as other and specific provision had already been made for Brantley County.
Both amendments were passed, within three days of each other; both were submited to a vote of the people by proclamation of the Governor and at the same election, and both were proclaimed to have been adopted as a part of the Constitution by the Governor on the same day. Both proposals were in pari materia. Both must be construed .together.
"The rule that statutes in pari materia should be construed together applies with peculiar force to statutes that are contemporaneous or nearly contemporaneous; for, in such case, we have the same minds acting upon the one subject, and it is not to be presumed that the same body of men would pass conflicting and incongruous acts. The presumption is that they have in mind the whole subject under consideration; that while the one general subject is touched in separate acts, yet the legislative intent was that. of a harmonious whole." (See Ruling Case Law, Volume 25, Section 286.)
"Although there is a wide difference in the phraseology between an earlier and a later statute relating to the same subject, if the object of both statutes was the same; the earlier statute may be looked to in determining the meaning of the later statute, which may be held to require by implication what was in terms required by the previous statute. If a special meaning was attached to certain words in a prior act, there is a presumption of some force that it is intended that they should have the same signification when used in a subsequent act in relation to the same subject matter." (See 25 Ruling Case Law, Section 287.)
Applying the above general rules, I give it as my opmwn that it was not the intention of the law makers to repeal, change, or modify the "Brantley Amendment" by the passage of the "Reapportionment Amendment,'' but the purpose of the r~egislature was purely and solely to provide a necessary machinery for elections that might have been overlooked and omitted by the Acts creating the Counties named theretofore.
Any other construction would necessitate the County of" Brantley incurring an absolutely unnecessary expense of two elections, one on December eighth, for its other County Officers, and another selection on the first 'fuesday in January,
81

immediately following, for the sole purpose of electing a member of the General Assembly.
I am clearly satisfied that such was not the intention of our law makers, and I give it to you as my opinion, based upon the provisions of the law as herein stated, that a member of the House of Representatives of the General Assembly for the term of 1921-22, for the County of Brantley should be elected at their general County election on December 8, 1920, as provided by the Constitutional Amendment creating said County.
Respectfully submitted,. R. A. DENNY, Attorney-General.
, Executive without auth~rity to create Advisory Board for Public Institutions.
December 6th, 1920. Hon. Hugh 1\'I. Dorsey,
Governor, State Capitol, Atlanta. My dear sir:
Referring to and answering your letter of the 29th ultimo, in which you hand me a communication of November 19th, from l\Irs. C. H. Dougherty, l\Irs. Ray l\IcLarty and l\'lis;; . Blanche Middlebrooks, of Sparta, asking whether under the law, you would have authority to follow the suggestion made by these ladies, I beg to say:
The suggestion made by the aforesaid ladies, which comes to you more by the way of request, is, that in view of the fact that there is no vacancy in the Board of Trustees of the State Sanitarium, to which office they aspire, they ask that you "create by Executive Order, a Board of Visitors, or Advisory Board, for the State Sanitarium, upon which you could appoint ladies who are deeply interested in the welfare of the Institution, and, in this way, give to them official recognition in order that they would not be embarrassed in an effort to study the needs of the Institution without interference in
82

any way with the Management, but infull accord and sympathy therewith."
I beg to say that: I have hunted diligently, and am unable to find any authority on the part of the Governor, to interfere with the prescribed statutory provisions for the management and control of the State Sanitarium.
Nor am I able to find any statutory authority vested in the Governor whereby he is authorilo:ed to create and appoint Advisory Boards for any public institution of the State, unless specifically authorized to do so by statute. I am, therefore, constrained to say that you have no authority to grant the request of these good women.
I am returning you, herewith, the correspondence to and from your office with these ladies.
I have the honor to remain, dear sir, Yours very respectfully, R. A. DENNY, Attorney-General.

A member of the Georgia Legislature is not ineligible to appointment as an Officer o'f the National Guard.

Ron. Hugh M. Dorsey,

December 6th, 1920.

Governor, State Capitol, Atlanta.

My dear sir: Replying to your inquiry of the 29th ultimo wherein you
refer to me correspondence between your office, and Honorable Ben J. Fowler, Representative elect from Bibb County,

and requesting that I advise you whether or not, under the law, ~,Ir. Fowler, who has been recently elected as a member of the Legislature, next Session, from the County of Bibb, is eligible to the appointment, at your hands, of Major, Judge

Advocate General's Department, on the Georgia National

Guard.

"

I beg to say: 'l'he National Guard of Georgia was created

under what is known as the "Military Reorganization Act"

83

approved August 21, 1916. (See Acts of the Legislature of 1916, pages 158-194). Section 5 of that Act is as follows:-
"The militia of the State shall consist of all able bodied citizens of the State, and all other able bodied males who have or shall have declared their intention to become citizens of the United States, and are residents of this State, who shall be more than eighteen (18) years of age and, except as hereinafter provided, not more than forty-five years of age, and said militia shall be divided into three classes, the National Guard, 'the Naval Militia and the Unorganized Militia."
This ~Iilitary Reorganization Act as a whole, including Section 5, was passed by the Georgia Legislature pursuant to what is known as the DICK BILL, passed by the United States Congress, June 3, 1916. (See United States Statutes at Large, Volume 39, part 1, pages 166-217.)
Section 1 of the Dick Act provides; "That the Army of the United States Shall Consist of the Regular Army of the United States, the Volunteer Army, the Officers Reserve Corps, the Enlisted Reserve Corps, the National Guard, while in the service of the United States, and such other Land Forces as are now, or may hereafter be authorized by law. Sections 57 and 58, of the Dick Act are as follows:
"Sec. 57: The militia of the United States shall consist of all able-bodied male citizens of the United States, and all other able-bodied males who have or shall have declared their intention to become citizens of the United States, who shall
be more than eighteen years of age and, except as hereinafter provided, not more than forty-five years of age, and said militia shall be divided into three classes, the National Guard, the Naval Militia, and the Unorganized Militia."
"Sec. 58. The National Guard shall consist of the regularly enlisted militia, between the ages of eighteen and forty-five years organized, armed and equipped as hereinafter provided, and of commissioned officers between the ages of twenty-one and sixty-four_ years."
It will be seen that the provisions of the Dick Act with regard to the organization of the National quard. are almost verbatim et literatim and identical with the Act of the Georgia General Assembly of 1916 herein above cited.
84

The Dick Act further provides for pay for the National Guard of $500.00 per year as for a Captain, and the same pay shall be paid to every Officer of higher rank than that of Captain. (See 39th Revised Statutes at Large, page 209.)
The Constitu~ion of the State of Georgia (See Parks Code Section 6420) by Article 3, Section 4, Paragraph 7, provides:
"No person holding a military commission, or other appointment or office having any emolum.2nt or compensation annexed thereto, under this State, or the United States, or either of them, except Justices of the Peace, and officers of the militia, nor any defaulter for public money or for any legal taxes required of him shall have a seat in either house; nor shall any senator, or representative after his qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Senate, to any office or appointment having any emolument annexed thereto, during the time for which he shall have been elected."
Applying the Constitutional provi~ion to the Act of 1916, and the Dick Act, as hereinabove cited, three things are clear:
First; The Georgia l\Iilitia is not abolished, but, under the Dick Act and the Act of 1916, has simply been divided into three classes, one of which is The National Guard. Second: That the officers named by the Dick Act (See cita. tion) receiYe compensation for their services as such. Third: That a member of the Legislature of Georgia, who is also connected with the militia, or National Guard, by appointment, is eligble to hold said appointment together with his commission in the Legislature by reason of the militia exception in the Constitutional provision. I am, therefore, of the opinion that Mr. Fowler has a perfect right to accept the appointment of Major in_ the National Guard from your hands, and to also serve as a member of the incoming Legislature of 1921-22.
Respectfully submitted, R. A. DENNY, Attorney-General.
85

The Governor is required to issue his commission to Congressmen elect for the term of his election, unless properly prescribed notice of contest Is served within five days and pressed to hear ing within 30 days.
Decelllber 8th, 1920. Hon. Hugh l\I. Dorsey,
Governor, State Capitol, Atlanta. :::\Iy dear sir:
Replying to your inquiry of the fourth instant, asking me for an opinion as to whether a commission should be issued
by you to Honorable Thomas l\I. Bell, as Congressman elect
from the Ninth Congressional District of Georgia, for a term beginning l\Iarch 4th, 1921, I beg to say:
I am returning you herewith a letter addressed to you upon this subject, under date tl1ird instant, by Honorable H. H. Dean, Attorney at Law, Gainesville, Ga., who, I infer, is acting as Attorney for Hon. Thomas M. Bell in a certain intended contest of the election of l\'l:r. Bell by 1\Ir. Barnwell.
Replying, I beg to respectfully submit that I do not see any serious question as to the proper course for you to pursue in this matter, and I call your attention to the following:
Section 121, Paragraphs 1 and 2, of Parks Code, Volume 1, is as follows:
"Sec. 121. PROCEEDINGS IN CONTESTED ELECTIONS. In all cases when the election of a person by the people to any office requiring a Commission from the Governor is ,contested, the following shall be the proceedings in all contests arising therefrom.
"1. NOTICE TO GOVERNOR TO WITHHOLD COMMISSION. The contestant or his attorney shall give written notice to the Governor of an intention to contest, and upon receipt of such notice the Governor shall withhold the issuing of a commission until the contest is decided, or until the time hereinafter prescribed shall have elapsed without the filing of such contest. In all cases the Governor shall withhold the issuing of commissions to persons elected, five days after said election shall have been held.
"2. NOTICE TO ADVERSE PARTY. Such contest shall be begun by giving the adverse party five days notice in
86

writing, stating the grounds of contest, the time and place

where the contestant intends to take testimony, and the

judicial officer before whom the testimony will be taken:

Provided, for providential cause or other sufficient reason,

any other judicial officer than that named in the notice,

qualified to act, may preside at the taking of such testimony,

.

the cause of such change being made to appear by the

affidavit of the contestant, and to be made a part of the

record in said case. Said notice may be served by the sheriff,

or any constable of the county where the contest is pend-

ing, who shall be paid by the party cast in the contest two

dollars for service of notice of contest and fifty cents for

each subpoena served."

I an;t advised that the notice called for in the above quoted paragraph was duly served upon your Excellency as by said paragraph required, and that thereupon issuance of commission to ?.1r. Bell has been withheld.
Section 102 of Volume 1, Parks Code, IS as follows:
"Sec. 102. MEMBERS ELECT TO APPLY FOR COMMISSION IN THIRTY DAYS: VACANCIES. If any person duly elected as aforesaid shall not, within thirty days after the Governors proclamation, apply for his commission, the Governor shall order a new election, as presoribed in the preceding section, and vacancies for any cause are filled in like manner."
whether essential or not the fact remains that under this last quoted section of our Code, the Congressman elect shall apply for and receive a commission from the Executive of our State as such Congressman elect.
I am advised that the Honorable Thomas l\1. Bell has applied to you for the issuance of his commission as provided by Section 102.
Paragraph 8, of Section 121, of Volume 1 of Parks Code of Georgia so far as relates to the present question is as follows:

"P. 8. COPY OF NOTICE-COMMISSION, WHERE TO ISSUE. The contestant shall send to the Governor a copy of the notice, in writing, required by subsection 2 of this

87

Section to be served on the contestee .
I am advised that the notice required under this paragraph last above quoted, has not been served upon you by the contestant, Mr. Barnwell. This being the case, it is unnecessary to go farther. Manifestly it is your duty to at once issue commission to the Congressman elect, as prescribed by Section 102, and, with that commission, the Congressman elect appears before the body to which he has been elected and is prima facie seated as the Congressman elect from his District in Georgia.
The way is then open for the issue to be formed between him and the Contestant in the Congress of the United States on the contested question as to who is entitled to the ~eat.
Under Article 1, Sectioll' 5, Paragraph 1, of the Constitution of the United States:
"Each House shall be the judge of the election, returns, and qualifications of its own members:"
Therefore, any issue which is desired to be made by the contestant as to Mr. Bell's right to represent his District comes regularly before the House of RepresentatiYes by the aboYe ExecutiYe action on the part of the GoYernor of his State, in issuing his commission.
I am, therefore, returning herewith 1\Ir. Dean's letter to you, agreeing with him fully as to his conclusions, without discussing, or criticizing the premises upon which he bases same.
Respectfully submitted, R. A. DENNY, Attorney-General.
88

In the interest of prortecting the State with reference to State's deposits in State Depositories, the Governor has authority to require detailed information from the Superintendent of Banks as tOi the condition and reliability of such lnsttutions. This authority, however, does not extend to the State Treasurer.
December lOth, 1920. Ron. Hugh M. Dorsey,
Governor, State Capitol, Atlanta. l\Iy dear sir :
Replying to your letter of inquiry of yesterday, attached hereto, I beg to say:"
I am asked by you whether, under the law, the Treasurer and Governor, in the interest of protecting the State with reference to deposits made in every State Depository, have the right to require of the Superintendent of Banks information as to the status and reliability of such Depositories.
I find no direct and specific statement of such authority in the Banking Law of the State of Georgia approYed August sixteenth, 1919, nor yet in the Amendment thereof approved August fourteenth, 1920.
However, I find abundance of implied authority to the above effect in said Banking Law and Amendment thereto as note the following:
Article 2, Section 2 says that:
"The Chief Officer of the Department of Banking shall be known as the Superintendent of Banks, and shall be appointed by,the Governor by and with the advice and consent of the Senate."
Section 4 of the same Chapter says:
"The Governor shall immediately remove from office any Superintendent of Banks violating the provisions of this Section."
Section 7 of the same Article (2) recites:
"The Superintendent of Banks may be suspended or removed whenever the Governor has trustworthy information, to be judged of by him, that the Superintendent is insane, or has absconded, or grossly neglects his duties, or is guilty of conduct plainly violative of his duties::
89

Section 15 of the same Article (2) recites:
"The Superintendent of Banks shall make an annual report to the Governor on or before the 31st day of December, which report shall be filed in his office, and by him laid before. the General Assembly in connection with his first annual message thereafter."
Paragraph 2, Section 16, of the same Article recites:
"That the annual report of the Superintendent of Banks shall set forth a summary condition of every bank, as shown by the last report received in response to ,call, and such condition as shown by the last examination made, and such other information in relation to said bank as in his judgment may be useful."
Article 20, Section 2 recites:
"Any Superintendent of Banks, Assistant Superintendent. Examiner, or Office Assistant, who shall knowingly, or wilfully disclose the condition and affairs of any bank, ascertained by examination, except to the extent authorized by law, shall be guilty of a misdemeanor."
Taking all of the above sections together, it appears to me very clearly that by implication, if not directly, the Governor has power at any and all times to call upon the Superintendent of Banks for any special or detailed information he may desire with reference to the condition of banks, or the Banking Depar.tment.
This authority, however, would not extend to the Treasurer. This could be supplied very easily though by the Treasurer seeking such information through the Governor.
Under the original banking law of the State the State Treasurer was ex-officio the Superintendent of Banks, but his official connection therewith was superseded by the Act of 1919, known as the "Banking Law."
Under the Act of 1876, page 128 (See section 233, Volume 1, Parks Code) ''the Governor may exercise a general superintendence over the office of State Treasurer, not inconsistent with the provisions prescribed for it by law, and may at any time appoint some competent person to examine into the state of such office, for any period of time he may designate, and report it!l condition to him;''
90

Section 228, paragraph 10, Volume 1 of Parks-Code provides that if at any time when the Legislature is not in session, the Governor have information that the safety of the public funds requires it, he shall pass an Order in writing, directing the Treasurer to make such change in the Depositories as may be found necessary or desirable.
The section under the old law above cited gives the Governor unquestionably the right of superintendence over the affairs and office of the Banking Superintendent.
Has this section 223 been repealed by the new banking law? Article 21, Section 1 of the new Banking Law Act of August sixteenth 1919, recites that this Act shall take effect from and after the first day of January 1920, and shall then supersede all existing laws regulating banks and banking in this State. Section 1, Article 22 of the ~~ct repeals all conflicting laws. The question now arises as to whether the above superseding section, and the repealing section would repeal section 223 of Parks Oode. If Section 223 is a law regulating banks and banking it would unquestionably be superseded; but it does not appear to me to be such a law, but merely a provision specifically authorizing the Governor to inspect the office and affairs of the Banking Superintendent. If this conclusion is correct then the Governor has specific authority delegated to him by Section 223 for the purposes inquired about. However, aside from that, it is my opinion that the Governor aR the Chief Executive of the State, even in the absence of specific authority, has such implied authority under the banking law. hereinabove cited as is inquired of in your letter of inquiry. This is confirmed by Section 5 of the Amendment to the law, approved August fourteenth 1920 which provides that:
"The expense of furnishing certified copies of records and reports by the Superintendent of Banks shall be paid by the person applying for such certified copies before such copies are delivered, except where such .copies are called for on behalf of the State."
91

Answering the third paragraph of your communication as to whether the State Treasurer, 'vould be entitled to information as regards banks generally, that is, those not designated as State Depositories I beg to Say: I do not think so.
The above covers complete answer to your communication. Respectfully submitted, R. A. DENNY, Attorney-General.
Automobile Tags, unused, cannot be redeemed by the State and price refunded.
December lOth, 1920. Hon. S. G. l\IcLendon, Secretary of State,
State Capitol, Atlanta. :Jiy Dear Sir: Replying to your inquiry of the eighth mstant, I beg to say: I know of no authority whatever nsted in you to make refund to l\Ir. Stanton, or any bod~- else under any circumstances for any automobile tag purchased and not used, the purchaser finding that he did not need the tag. The State ca1mot redeem tags purchased, nor would they be permitted to return l\Ir. Stanton the price paid for same. I beg to remain,
Yours very respectfully, R. A. DENNY, Attorney-General.
Failure of candidates to file statement of election expenses defeats his rights to be declared the nominee.
December lOth, 1920. Hon. C. A. West, Executive Secretary,
State Capitol, Atlanta. l\Iy Dear Sir: Replying to your inquiry of the 8th instant, enclosing me a letter to the Governor from J. P. Chambers, Clerk of the Superior Court of Dawson County, with reference to the failure of some candidate to file with the Clerk of the Superior Court a statement of his expenses incurred during the campaign, and inquiring whether he can be a legal officer:
92

'l'he only law we have upon this subject is to be found in Volume 1, Parks Code, sections 92 and 93.
Section 92 states in specific detail what officers are required to file sworn returns, with whom they must be filed, and what they must contain. 'l'his statute says that these officers shall file such returns within the time 'limit prescribed, and, therefore, that section of the Code is a definite and specific mandatory requirement, raised upon persons elected t ooffices as listed therein, to file these certain statements under oath.
Paragraph 93 provides the penalty for failure. It recites that "no person violating the provisions of the preceding section shall be declared the nominee of his party."
'l'his covers completely your inquiry, and I beg to remain, Yours very respectfully, R. A. DENNY, Attorney-General.
P. S.: I am returning herewith to you ::\Ir. Chambers' letter.
December lOth, 1920. Hon. C. A. \Vest, Executive Secretary,
State Capitol, Atlanta. ::\Iy Dear Sir: Replying to your letter of the eighth instant, enclosing one from Judge Y. E. Bargeron, Ordinary of Effingham County, requesting information as to filling a vacancy in the office of County Commissioner of Effingham County, I beg to say: From the letter from Judge Bargeron I gather that the vacancy referred to will not occur until the first day of Jannary, 1921, it being caused by the death of one of the newly elected members of the Board of Roads and Revenue of Effingham County between the date of his election as such member of the Board and his taking office and assuming his duties by virtue of his election on January first, 1921. 'l'he Board of Commissioners of Roads and Revenues of Effiingham County was created by Act of the Legislature of Georgia, approved December 13, 1871 (See Acts of the General Assembly of 1871-2, page 225). 'l'he first section of said Act is in the following words:
93

Section 1. Be it enacted, etc., That from and after the passage of this Act there shall be established in the Counties of Floyd, Berrien, Effingham, Schley, Sumter and Greene, in this State, a board of commissioners of roads and revenue, to consist of five persons, to be elected by the voters of the County, and commissioned by the Governor, the first election. to be held on the first Saturday in January, 1872, said commissioners to hold their office until the regular election in November of said year, then at the regular election every fourth year thereafter, and vacancies to be filled by the remaining commissioners; . said commissiOners shall be exempt from militia, road and jury duty."
By the terms of this section vacancies are to be filled by the remaining commissioners.
Sectio~ 2 of said same Act is in the following words :
Section 11. That the persons chosen to fill the vacancy are commissioned for the unexpired terms of the outgoing commissioners, and hold their offices accordingly. That no person is eligible as commissioner, unless he has been a resident citizen in the County at least one year next preceding his qualification. Before entering on the duties of his office he shall take the oath of office required to be taken by the civil officers of this State."
By the terms of this Section the person chosen to fill the vacancy is commissioned for the unexpired term.
It is true, as stated above that there can be no vacancy until the first day of January 1921, and until the remaining four commissioners elect shall have met, organized and elected their permanent Chairman and such other officers as they require. Upon these four commissioners having done this, and having organized, the 'vacancy in their body will be apparent; therefore, they should immediately select and appoint a commissioner to fill this vacancy for the unexpired term which will be the remainder of the four years for which the dead man was elected, commencing January 1, 1921 after the organization of the Board of the remaining four members.
I think thi swill thoroughly answer yours, above referred to, and beg to remain,
Yours respectfully, R. A. DENNY, Attorney-General.
94

Superior Court Judge marrying and sojourning with his wife in another County, not belonging to his Circuit, no cause for removal, or necessary evidence of his abandonment 'of original residency.

December lOth, 1920.



Hon. C. A. West,

Executive Secretary, State Capitol, Atlanta.

J\Iy dear sir :

Replying to your letter of the eighth instant, making in-

quiry with reference to Judge B. F. walker, of the Superior

Court of Toombs Circuit, I beg to say:

I notice that Judge walker has recently married a good

woman of Jefferson County, which is not in his Judicial Cir-

cuit. This is not within itself an uncommendable act upon

the part of the Judge. I think it is the duty of all reputable

and respectable male citir;ens to marry, and I know of no

restrictions of law requiring a Judge to marry within the

confines of his own Judicial Circuit.

Judge walker's change of residency is a matter of intent

on his part, and the law so provides. So long as the Judg-e

is simply sojourning in Jefferson County, with his newly ac-

quired wife, without any announced intention to abandon his

own citizenship and become a citizen of Jefferson County,

he is still a citizen of his original county. ,

It would be eminently impossible and improper, under the

facts and circumstances as set forth, to determine that the

Judge has abandoned his old residency and has become a cit-

izen of another County. It is true, however, that the Judge of

the Circuit has no right to issue legal proceedings, or sign

judicial matters outside the confines of his own Circuit, but

the doing so would not be a cause for impeachment or. re-

moval, but one solely of defense in the proceedings so signed

by him.

I have the honor to remain, dear sir,

Yours very respectfully,

R. A. DENNY,

Attorney-General.

95

Trustee of the State University not disqualified to hold office as a member of the Board of Public Welfare.
Decemher 17th, 1920. Hon. Hugh l\L Dorsey,
Governor, State Capitol, Atlanta. l\Iy dear sir :
I am in receipt of your inquiry of yesterday, enclosing me letter from Judge Andrew J. Cobb, and asking tliat I give you an opinion, at my earliest convenience, as to whether Judge Cobb's tenure of Trusteeship of the State University renders him ineligible to the office, or membership of the Board of Public \Velfare.
I am returning Judge Cobb's letter, addressed to you, raising this question, and replying to your inquiry with reference thereto, I beg to say:
The only clause that I have 'found that would seem to even indirectly point a question of ineligibility in the in-stant case is the closing sentence of section 1 of the .Act creating the Board of Public \Velfare, approved August 18, 1919 (See Georgia Laws 1919, page 223).
This sentence, fully quoted, is as follows:
"No director, officer, or employee of an institution subject to the terms of this Act shall be appointed a member of such Board, nor any kinsman by blood or marriage to such officer."
I know of no law appertaining to the State University that disqualifies its Trustees, or renders them by virtue of their office as such Trustees, .ineligible to hold positions on other Boards. I, therefore, am confining my answer to you to the quoted provision of section 1 of the Board of Public \Velfare Act as hereinabove copied.
\Vhat institutions are "subject to the ter_ms of the Board of Public \Velfare Act?''
The answer to this question is to bt> found in Section 6 of the Act, which srction in so far as it deals with 'the instant question is iu the following words, to-wit:
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"That the duties or the Board shall be strictly visitorial and

advisory, without. administrative or executive powers ex-

cept as may be afterward provided by law. It is hereby

empowered and authorized, and it shall be a duty as a whole,

or by committee of its members, or by its Secretary or

assistant secz;etary to visit, inspect and examine once a

year, or oftener county jails, the State, county, municipal

and private institutions and organizations which are of an

eleemosynary, charitable, correctional or reformatory charac-

ter, and which are for the care, cu-stody or training of the

orphaned, defective, dependent, delinquent or criminal

classes; it shall also inspect a,nd report upon the workings

and results of chartered or private institutions or associa-

tions or organizations engaged in the care and protection

of homeless, dependent, defective and delinquent children or

adults .

. . . . .

A careful reading of this above quoted section will show conclusively that there is no intention whatever to include the State l.Jniversity within its purview, nor could the State university by any possible construction of the plain language of this section be construed as one. of the institutions intended to be covered thereby. Section 6 of the Board of Public \Velfare Act clearly confines its operations to all State, county, municipal and private institutions, organizations which are eleemosynary charitable, correctional or reformatory character, or which are for the care, custody or training of the orphaned, defective, dependent, delinquent, or criminal classes.
It could safely be said that the University of the great State of Georgia under no possible stretch of imagination can be construed to be either directly or ii1directly such an institution.
I gave you an opinion very intimately touching the question now under consideration on July 2, 1920, touching the authority of the Board of Public \Velfare over chaingangs in
our State. I beg to refer to said opinion which is quite ex-
haustive as an illustrative accompaniment to the question now presented. Having, therefore, gone this far I beg to state finaUy, that it is my opinion J~dge Cobb is not in any sense disqualified or ineligible to fill both the position of Trustee

97

of the State University and membership on the Board of Public Welfare.
I have the honor to remain, my dear sir, Very respectfully yours,
. R. A. DENNY,
Attorney-General.

The provisions of the proposed Constitutional Amendment creating the

County of Lanier, sufficiently broad to authorize the Executive

to submit the "negative," notwithstanding not affirmatively stated

In the Bill.



December 27th, 1920. Ron. Hugh M. Dorsey,
Governor, State Capitol, Atlanta. .My dear sir:
Complying with your request for an opinion upon the questions presented by R. A. Hendricks, of Nashville, Georgia, in his letter of Dec. 9th, 1920, arising out of the litigation now before the Supreme Court, in the two cases of Clements, Et. AI., v. Anderson, Et. Al., concerning the establishment of the County of Lanier, I beg to say:
The main question raised in this case is the question of the provision of the Constitutional amendment submitted, which provided that the Governor should submit the question Qf the ratification of this amendment to those favoring the adoption of the amendment in certain language without providing any particular language for the submission of a negative vnte. This question was before you at the time that you submitted this proposed Constitutional amendment, and at that time I advised you to submit both the affirmative and the negative of the question, and I have never, at any time, expressed any opinion contrary to the above to either Mr. Hendricks or to any of his a~sociates. My mind is perfectly clear and I am absolutely satisfied that the provision of this Constitutional amendment, providing that you should submit this question to the qualified voters of the State of Georgia, was broad enough to authorize you to submit the negative,
98

even though this question \Vas not specifically set forth in the bill; in my opinion, there is no merit whatever in this contention as to the bill.
The other contentions as to the bill deal with matters which are absolutely concluded by the ratification of the proposed amendment, and any of the questions therein raised are concluded by the decision of the Supreme Court in the case of McWilliams v. Smith, 142nd Ga., page 209. I am clearly of the opinion that the entire position taken by the plaintiff in this case is without merit; that the judgment of the lower court wll be affirmed, and that you should not fail to make the appointment and issue the Commissions to the Officials of this County.
A considerable portion of this petition is largely argumentative, and a large part is devoted to an attack upon this Constitutional amendment, which, summed up, seems to be that the Legislature committed a fraud upon the inhabitants of Berrien and Clinch Counties. Such a thing, of course, is a legal absurdity, as the Legislature is bound only by Constitutional restriction, and a charge of fraud in the acts of the Legislature is a thing unheard of in our jurisprudence, and impossible to maintain.
I believe that this covers the situation fully, and I beg to remain, dear sir,
Very respectfully, R. A. DENNY, .Attorney-GeneraL
In re Felix Miller, fugitive from justice.
December 28th, 1920: Hon. Hugh M. Dorsey,
Governor, State Capitol, Atlanta. My dear sir :
Replying to your request for an opinion upon the questions raised on extradition for Felix Miller, pending before you, the questions presented being as to the sufficiency of the

affidavit presented and as to whether or not the accnsed, having been brought to Georgia by the Federal authori~ies is a fugitive from justice.
The second question above presented has been decided in terms by the Supreme Court of Georgia in the case of;-
Keliy vs. Mangham, 145 Ga., p. 57, in which the Supreme Court held that facts similar to this, in the Miller case, constituted the accused a ''fugitive from justice.''
Upon the first question-the sufficiency of the affidavit, the rule is clearly established that: Each State has the right to prescribe the forms of pleading and processes to be observed
Jn her Courts and, consequently, in a case involving the
surrender under the Act of Congress of a fugitive from justice the sufficiency of these forms cannot be called into question.
In re: Reggel, 114 U. S. p. 653 And the rule is also clearly stated that the Magistrate in the act of congress referred to has reference to any person who is regarded as a Magistrate under the law of the State where the alleged crime is committed: In re: Kaine 14 How. p. 103 It appears that the warrant before yon in this matter is in conformity to the Statutes of Indiana. In addition to this, it appears that the accused has already plead ''guilty'' to the offence charged and is now in effect an "escaped convict." Under these circumstances the application is in proper form, and is not open to the objections and attacks urged against it before you, and should be granted.
Very respectfully yours, GRAHAM WRIGHT, Assistant Attorney-General.
LA\V UPelRARY
UNIVERSITY OF G=CRGIA ATHENS, GEOrWIA

Monies collected by a Tax Collector and deposited by such officer of flclally In a Bank, not a State Depository, constitute a preferred claim covered by sub-section 1 of Section 19, Article 7 of the
. Banking Act of 1919
December 29th, 1920. Ron. T. R. Bennett,
Superintendent" of Banks, State Capitol, Atlanta.
My dear sir: Replying to your request for an opinion as to whether or
not money collected by a Tax Collector of this State, and deposited by him in .a bank not a State Depository would be a preferred claim, coming under sub-sectiom; 1 and 2 of Section 19, of Article 7 of the Banking Act of 1919 where the bank failed prior to the remittance by such Tax Collector.
The title to such money is vested in the State and County, the Tax Collector being merely the Agent for the collection thereof. Therefore, such portions of such money so deposited as the State is entitled to would come under the pr-ovisions of subsection 1 above referred to, and such portion as the County is entitled to would come under the provision of subsection 2, and liqi1idation by your Department should be made accordingly.
Yours very respectfully, GRAHAM: WRIGHT, Assistant Attorney-General.

A Bank or person transmitting for collection a draft or other evidence of indebtedness to another Bank, which latter falls before collection has been remitted, does not become a preferred creditor, . but o;ccupies the relationship of a depositor.

December 29th, 1920.

Ron. T. R. Bennett,

Superintendent of Ba_nks,

State Capitol, Atlanta.

My dear sir:

Replying to your verbal request for an opm10n upon the

question arising under the Banking Act of 1919 as to the

.

~.,,_

.; . u:ll'lt

. ;;.

10'"1

rights of a bank, or person who had sent fot:- collection to another bank a draft or other evidence of indebtedness, which latter bank had collected, but failed to remit, and which latter Bank had then been taken overby your Department:
Prior to the pAssage of the Act of 1919 the Supreme Court of Georgia had held in the case of Tiedeman vs. Imperial Fertilizer Company (109 Georgia page 661) that:
"Where the owner of notes placed the same in the hands or another tor collection, and the bailee, having made col lection, tailed to remit the proceeds, the claim of the owner o! the money collected was, in a general sense, in the nature of a fiduciary debt, but not s11ch an one as entitled him to a priority over the claims or general creditors in the distribution or the assets of the bailee who had become insolvent."
This decision was later followed by the Supreme Court of Georgi!! in the case of:
Ober & Sons vs. Cochran, Receiver, 118 Georgia page 396. It is clear, therefore, that prior to the passage of the Banking Act of 1919, the owner of such note, or draft, was merely a common, or general creditor, ranking with the general depositors of such insolvent bank By the Act of 1919, Article 7, Section 19, the order of paying off the debts of an insolvent bank is set out specifically. By Article 19, Section 34, of this Act it is provided that under circumstances such as those stated above a lien is created in favor of the owner of such item on the assets of the bank making the collection. Construing these two sections of the Banking Act together in view of the decision of the Supreme Court above referred to, the payment of such items should be made under the sixth subdivision of section 19, Article 7, above referred to, unless the identical funds realized from such collection can be proven and traced in such way as to create a trust under the decision of the Court in the case of Ober & Brother vs. Coch-
ran, Receiver, cited above, in which event, payment would be
made under the fifth subdivision of this section.
102

Under no conceivable theor~ could these funds be turned

over, or paid out, in this order, under the provisions of this

law.

Yours very truly,

GRAHAM WRIGHT,

,

Assistant Attorney-General.

State's Executive without authority to reinstate- an inmate of the Confederate Soldiers' Home who has been dismissed therefrom.
January 3rd, 1921, Hon. Hugh M. Dorsey,
Governor, State Capitol, Atlanta. My dear sir:
Replyiny to your request for an opinion as to whether or not you have any jurisdiction of the application of Mr. W. A. Wright, formerly an inmate of the Confederate Soldiers Home of Georgia, whereby you may require his reinstatement therein, he having been dismissed by the Superintendent, I bag to say:
The management of this Home is vested in a Board of Trustees appointed by the Governor, whose duty it is to prescribe the rules and regulations for the government of the Institution, and who are authorized to appoint a Super.intendent and prescribe his duties; Penal Code section 1515. By Code section 1517, it is prescribed that the beneficiaries. of this Home may be admitted and receive its benefits under the regulations prescribed by the Board of Trustees.
There is no law vesting any authority in you over the conduct of this Home, and you are, therefore, without jurisdiction in the matter, the sole remedy for the aggrieved person being an appeal to the board of Trustees.
Yours very respectfully, GRAHAM WRIGHT, Assistant Attorney-General.

103

Prison Commission without authority to ascertain road mileage exc~pt thru Counties; Courts having enjoined both for and aganst, the only remedy Is legislation at a future session of Legislature.
January 5th, 1921. lion. R._ E. Davison,
Chairman, Prison Commission, State Capitol, Atlanta.
Dear sir: Replying to your recent inquiry as to whether the Prison
Corrnnission would be authori11ed, in the absence of any in.forma._tion from the various Counties, as to their road mileage, to ascertain the mileage from any other source, or, should you wait until the Legislature directs from what source the information may be obtained, I beg to say:
The Prison Commission has already been enjoined from cutting out the streets and alleys, or any of same in making calculation of the road mileage of Fulton County, and has also been enjoined from including the streets and alleys in making calculation of the road mileage of Spalding County.
Therefore, it would appear that one court of competent jurisdiction tells you that you must, and another court of competent jurisdiction tells you that you must not.
In fixing the road mileage of the State it is absolutely necessary that you adopt a uniform rule for all counties. Under the legal proceedings already had, as hereinabove re~ erred to, it will be impossible for you to do this.
I do not think you have any authority to go outside for other information upon which you can base your finding as to road mileage, and, I therefore, suggest the proper thing for you to do will be to wait 'until the next session of the Legislature when proper directory legislation can be had clarifying the atmosphere, and giving specific instructions.
very respectfully yours, R. A. DENNY, Attorney-General.
114

:Governor without authority to call out the Military except as by the

Code provided. Governor has authority to employ and pay a de-

tective out of contingent fund fer protection of State's Interests,

citizenry and property

,,

Ron. Hugh ::n. Dorsey,

January 8th, 1921.

Governor, State Capitol, Atlanta.

l.Iy dear sir:

Complying with your request for an opinion:

First: As to your authority to interpose personally in

the matter of the failure 'on part of the officers

of Hall County to interpose and apprehend indi-

vi.duals, and, by such means are endeavoring to

clear the County of the negro population:

Second:, As to your authority to call out and send to Hall County a quota of the military, or militia of the State, for the protection of the people by reason of the first above mentioned condition:

Third: As to your authority to employ a private detectiv~ for the purpose of apprehending the parties threatened, as set forth in the first paragraph
hereto:

Fourth: If you have such authority, as set forth in the third statement above, whether you have authority to pay for such detective out of the contingent fund:
I beg to say: In the limited time accorded me for investigating and reporting on these matters, I hav~ been unable to make, such investigation in as satisfactory manner, or with such conclusive results, as I would like. However, I do not think you have any authority to personally interpose in the troubles mentioned, by going to Gainesville, either for a conference or investigation. I do not think you would be. violating any duty by going to Gainesville, but I do not think you could do .anything after you had gone there. The enforcement of the

105

law rests with the Judges of t'ile Courts of Hall County, ti1e Solicitor General, with the aid of the Sheriff and h1s Deputies. You can from' your offices in Atlanta, by advice and solicitation accomplish with these officers by correspondence all, if not more than you could do by going to Gainesville personally.
This statement is based upon the absence of any legal authority on the part of the Governor to act otherwise than through the regularly constituted law and court agents fixed by Statute. An opinion on this subject was rendered to Governor Joseph M. Brown by Attorney-General H. A. Hall, on July 26, 1910, and I quote therefrom:
"By Article 5, ~action 1, Paragraph 12 of the Constitution of this State, it is provided (among other duties of the Governor therein set forth): He shall take care that th~t laws are faithfully executed, and shall be a conservator of the peace throughout the State.
!
"The clear intent of this provision is that the Governor shall act in harmony with the officers of a County rather than to seemingly ignore them in undertaking to enforce the laws himself in such county. When it is remembered that each county has its chosen officers, specially charged with the administration of the laws of the State in such county, it is clear that the Governor should not interfere with the due administration of the law in such county, unless it is made to appear that the officers charged with this duty are unable to cope with the situation, or that such officers are wilfully negligent in the performance of their duties. If the officers of a county should appeal to the Chief Executive tor aid on the ground of inability on their part to meet and deal with the situation, then the Governor would be authorized, and It would be his duty, to take such steps as were necessary to the due enforcement and administration ot. the law in the particular county. If it should be made to apP.Bar to the Governor that the ot!icers specially charged , with the administration or the laws in a particular county are willfully negligent in the discharge of their duties, then proceedings conformable to the statutes should be taken tor the removal ot such delinquent officers. If there was any doubt as to the law upon this question, numerous precedent& might be cited to sustain this view.''
106

Second: Sections 141 and 142, Parks Code, Volume 1 prescribes the authority of the Governor to call out the military of the State under certain emergencies as therein set forth, but I do not think that any of these emergencies have arisen in the instant case. Therefore I am constrained to advise you that in the instant case you would not be authorized, at the present time, to call out the military. Three and four: Section 159, of Volume 1, of Parks _Code is as follows:
"159. MAY EMPLOY AGENTS. And he has power to engage the services or any competent person for the discharge of any duty required by the laws, and essential to the interests of the State, or necessary, in an emergency, to preserve the property or funds of .the State."
Under this authority it is my opinion that you would unquestionably be authorized to employ such dectective as might be desirable for the purposes as hereinabove set forth, and, with equal positiveness, I give it to you, as my opinion, that you will have authority to pay such detective out of your contingent fund.
Quoting from an opinion of Honorable John C. Hart, Attorney-General; to Honorable Hoke Smith, Governor, rendered on November 16, 1908:
"My idea of the contingent fund is that it is a sum or money appropriated by the Legislature to meet the expenses not provided for, and which may occur, in the administration of the State's affairs."
I do not hink that the use of the contingent fund would be authorized if the Legislature had made provision by appropriation to meet the expanses to be incurred, but where the situation is an emergency, and the object sought is essential to the interests of the State, or necessary, in such emergency, the contingent fund can be used for defraying such expenses. Quite an exhaustive and comprehensive opinion on this subject was rendered by Hororable J. M. Terrell, Attorney-General, to Honorable William A. Wright, Comp-
107

troller-General, under date of March 20, 1894. 'rhis arose out of the matter of preventing the Corbett-Mitchell prize fight to be pulled off on Georgia soil. In the course of said opinion, the Attorney-General refers to the case of Neagle, as reported in Book 5 Lawyers' Reports Annotated, page 92. This Neagle case arose out of the employment by. the Attorney-General of the United States, with the subsequent ratification of the President, or Neagle to accompany Justice Field as a protective body-guard while touring through the State of California on official business. Field bad been previously threatened, and, in fact, in this very tour an attack on him was made, which was resisted by Neagle, and,' in the altercation following the attack the party was killed. The Circuit Court of the United States sustained the employment of Neagle and the payment for his services notwithstanding there was no specific authority shown either in the President or the Attorney-General to make such employment. The Court took the view that it was such an emergency as justifi,ed the act.
I finally give it to you as my opinion, therefore, that you have full authority not only to employ the detective for the purpose in view, but to pay for such employment out of your contingent fund.
Respectfully submitted, R. A. DENNY, Attorney-General.
The Constitutional Amendment reapportioning the Counties of the State requires a Legislative enabling Act to put It In force.
January 15th, 1921. Ron. Hugh M. Dorsey,
Governor, State Capitol, Atlanta. My dear sir:
Replying to your inquiry of the twelfth inst., wherein you call attention to the action of the last Session of the Le~Jis lature when was passed a proposed Constitutional amendment increasing the membership of the House of Representativet'l, which amendment was subsequently ratified by a vote of tho
. 108

tpe<lple, and upo.n which your proclamation as issued established it as a part of our Constitution:
The Constitution of 1877, Article 3, Section 3, Paragraph 1, prescribes the number of representatives in the House of Representatives from the State, restricting the total number to 189, and providing that the six largest counties, naming them, shall have three representatives each, and the twenty-six next largest counties, naming them, shall have two representatives each, and the balance of the counties of the State shall have one each. By Paragraph 2 of said Article and Section the Constitution further provides that the apportionment hereinabove referred to shall be changed by the General Assembly at its first session after each census taken by the United States Government so as to give the six counties having the largest population three representatives each, and the twenty-six counties having the next largest population two representatives each, but provided further that in no event shall the aggregate number of representatives be increased.
A careful study of the Acts of the General Assembly from and after the adoption of the Oonstitution of 1877 shows that in eaeh of the years following the taking o~ the national census, to-wit; in the years 1881; 1891; 1901 and 1911, the Legislature of Georgia acting under the above constituted Constitutional provision, has by Act established and announced the apportionment of representatives for the next succeeding decade.
The somewhat remarkable crusade for new counties in the State started in full force subsequent to the year 1910. The creation of these new counties naturally and logically required the increase of representation in the House of Representatives. Up to that time, as can be seen by reference to the Constitutional provision hereinbefore first mentioned, the represen-' tation in the House of Representatives was limited to a specific number stated.
The creation of these new counties, of a necessity, was accomplished by individual and specific Constitutional Amendments, each one of said Amendments providing for representation by the county in the Legislative body.
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In the year 1918, pursuant to this large inc~ease in the counties, this Constitutional provision was amended whereby it was provided that the House of Representatives should consist of one hundred and ninety three members to be apportioned in accordance with the original Constitutional provision, as herein set forth. (See Acts of 1918, page 87), Subsequent thereto there has been a still greater increase in the .creation of new counties in the State, and also subsequent thereto there has been a new census of the United States for the year 1920.
Pursuant to this most recent condition, the Legislature of 1920 (See Acts 1920, page 55) proposed another amendment to the Constitution of the State whereby the specifically stated number of members of the House of Representatives was taken away entirely and a provision was made that thereafter upon the ratification of said amendment the eight largest counties of the State should have three representatives each, and the thirty next largest counties should have two representatives each, and the remaining counties of the State, including the newly created counties should have one representative each. This Constitutional amendment has beep duly submitted to the people, adopted by them in the election, and proclaimed as a part of the Constitution by the Executive Proclamation.
Attention is called tb the verbiage of the Constitutional amendment of 1920, wherein it is provided that the House of Representatives "shall. consist of representatives apportioned among the several counties of the State, etc."
And this brings us again to the provisions of Article 3, Section 3, Paragraph 2 of the Constitution of 1877 which provides that the apportionment shall be changed by the Gen. eral Assembly, etc.
Applying the several Constitutional provisions as hereinabove set forth to the instant question, my opinion is that the Act of 1920, is nothing more than a change or amendment of the Constitution of 1877, still depending upon that section of the Constitution hereinabove referred to as Article 3, Section 3, Paragraph 2, and subject to the terms thereof.
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Therefore, the Constitutional amendment of 1920 demands

an enabling Act to put it in force. Standing by itself. it is

.simply directory as towhat shall be done by the Legislature,

.and, so standing, it is necessary for the Legislature at the next Session to pass a proper enabling Act to put it in force.

.

Respectfully submitted,

R. A. DENNY,

Attorney-GeneraL

Confirmation by the Senate of the appointment by the Governor of Trustees for the SQuth Georgia Normal College Is not by law required or necessary..
January 15th, 1921. . lion. Hugh l\L Dorsey,
Governor, State Capitol, Atlanta. My dear sir:
Replying to your inquiry of the eighth instant asking for .an opinion as to whether the law requires confirmation by the Senate of your appointment of Trustees of the South Georgia Normal College, I beg to say:
'l'he Agricultural, Industrial & Normal College of South Georgia (now generally known and designated as the South Georgia Normal College) was created by the Legislature of 1906. (Acts of 1906, page 75).
By this creative Act this college was established as a branch of the State University, and the first and fourth sections of said Act are in thQ following words, to-wit:
"Section 1: Be it enacted by the General Assembly, and it is hereby enacted by authority of the same, That there shall be established in connection with the State Univer.sity, and forming one of the devartments or branches thereof, an Agricultural Industrial and Normal College to be located, equipped and conducted as hereinatter provided."
"Section 4: Be it further enacted by the authority afore said, That said college shall be a part of the University of this State, and under the general control and management of its board of trustees. The local board of trustees shall have authority from time to time to prescribe such rules
111

and by-laws for the regulation of the college and the train~ lng and governing of students, and OJ!n such departments
of training and Instruction therein as said local board of trustees may think the progress and advancement of the times requires, subject to the approval of the board of trustees o! the University of Georgia and not inconsistent with this Act."
The third section of this Act provides for the management of said school by a board of trustees and ho\v they shall be appointed and constituted. The said third section is in the following words, to-wit:
"Section 3: Be It further enacted by the authority aforesaid, That the immediate charge of said College shall be In a board of trustees to be composed of the State School Com~ missioner, and the Chancellor of the University, for the time being, and nine citizens of Georgia, three of whom shall be residents of Low'ndes County, to be appointed by the Governor, three for a term of two years, three for a term of four years, and three for a term of six years, from the date of their appointment, which Board of Trustees shall be the local board of said college."
, The Act nowhere provides for confirmatory action on the part of the Senate for any trustee appointment made by the Governor.
Section 1365, .of Parks Code, providing for the appointment of Trustees for the University of Georgia, which is the parent stem of our State Educational Institutions, is in the following words, to-wit:
"Section 1365. BOARD OF TRUSTEES: The board of trustees of the University of Georgia, shall be composed of one member from each Congressional District, four from the State at large, two !rom the City of Athens, and the Chairman ex-officio of the local board of trustees of each branch of the State University where by laws now of force they are made such trustees, all of whom, except the latter, shall be appointed by the Governor and confirmed by the Senate, under the rules governing the a];)pointment and confirmation of other officers of this State required by law to be confirmed by the Senate."
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From the above, I deduce that there is no specific requirement for the confirmation by the Senate of appointment of trustees for this South Georgia Normal College to be found either in the Act creating said college, or in the laws governing the appointment of Trustees of the State University.
There being no specific requirement, we next look to the general law requiring 'confirmations by the Senate of governmental appointments. A careful investigation indicates that there is no general law particularizing or specifying what appointments of the Governor shall be confirmed by the Senate. This confirmation, therefore, on the part of the Senate depends upon specific legislation as to specific officers. In other words, confirmation by the Senate is necessary where this fact must affirmatively be shown by the Act providing for the appointment. I find no such provision as regards the appointment of Trustees for the South Georgia Normal College.
Therefore, I give it to you as my opinion that: Confirmation by the Senate of your appointment of Trustees for the South Georgia Normal College is not necessary.
Respectfully submitted, R. A. DENNY, Attorney -General.
Justices of the Peace and Constables, previously elected to the new Counties creation, should retain their offices until the termination of their Commissons, where the districts are not disturbed by the lines of the new Counties.
January 28th, l !)21. Hon. Claude A. \Vest,
Executive Secretan, State Capitol, Atlanta.
l\Iy dear sir: Replying to your request of ,January 18th, for an opmwn
as to whethrr those .Justices of the Peace who were elected in the territory now comprising the several new counties created by the last Legislature, prior to the creation of those
113

counties can serve under the comm1sswns issued to them, or whether it will be necessary. to hold elections in those districts, I beg to say: By the provisions of Code section 832, Justices of the Peace and Constables where districts are not disturbed b ythe lines of new counties shall retain their offices in their districts until their commisions expire. Under the provisions of this Code section the officers now n commission would continue until the expiration of these commissions, and no ne'v elections can be called.
Yours very respectfully, GRAHAM WRIGHT, Assistant Attorney-General.
No prohibition exists against appointing a Bank as County Depository in which Bank one of the Commissioners is an Officer. Follow Code Section 393.
January 28th, 1921. Ron. Claude A. \Vest,
Executive Secretary, State Capitol, Atlanta.
My dear sir: Replying to yours of the 26th, instant, enclosing letter from
James T. Vocelle, and requestin~ an opinion as to whether or not the Commissioners of Camden County the chairman of which body is a stockholder and officer, as well as director, of a bank, may appoint that bank a County Depository, I beg to advise: That this could he legally done. There is no prohibition against such action either in the general law or in the special acts creating the Board of Commissioners of Camden County.
The provisions of Code section 393 might possibly apply, and I would suggest that the matter be handled by the Commissioners in conformity with the provisions of that section. If this is done, and the appointment is made- in compliance with the Act of the General Assembly, approyed August 7,
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1915 (See Acts 1915, page 165) there could be no question as to the legality of same.
Yours very respectfully, GRAHAM WRIGHT, Assistant Attorney-General.
A creditor of a defunct Bank holding securities for his debt, must exhaust the securities so held, crediting the claim and prove same for balance due.
January 28th, 1921. Hon. T. R. Bennett,
Superintendent of Banks, State Capitol, Atlanta.
Dear sir: I have gone carefully over the question raised by the Han-
over National Bank as to the method, or policy, to be adopted in allowing proofs of claims of unsecured creditors against defunct banks being administered by, your Department, together with a letter from Mr. Orville A. Park, which you handed me.
Under the decisions of the Supreme Court referred to by Mr. Park: Collins vs. American Exchange Bank, 147 Georgia, page 273 and Citizens & Southern Bank vs. Alexander, 147th Georgia, page 74, it is clearly apparent that the rule adopted by the Supreme Court of Georgia is that the creditor holding securities for his debt must exhaust those securities, creditin~ them upon his debt, and prove his claim only for the balance due.
I cannot find that this rule has been changed in any manner by the Act of 1919. It seems to me, therefore, that, under the circumstances, you are bound by these decisions; that you cannot adopt any other rule than this in accepting proof of claims unless specifically authorized so to do by an Act of the Legislature. I am inclined to believe that there might be serious question of your liability upon your bond should you adopt any other rule, and loss thereby result to any creditor or depositor of any defunct institution. I recogni.!':e, of course, the serious complications that this will
115

bring about, but the only relief that I can see that you can hope for in the matter would be the passage by the next Legislature of some bill to relieve this condition, and to authorize you to handle these matters as you wish. I am returning herewith the file you handed me.
Yours very respectfully, GRAHAM WRIGHT, .Assistant Attorney-General.
Executive Secretaries may administer oaths under prescribed regulations only.
January 28th, 1921. Hon. Claude .A. West,
Executive Secretary, State Capitol, .Atlanta.
Dear sir: Replying to your inquiry of the 18th, instant, in which you
request an opinion as to whether the Secretar~ of the Executive Office can administer an oath to State or County officers, and as to whether the Governor may atithorize him to do so by dedimus potestatum:
Code secti,on 271 provides:
"When not otherwise provided by law, and not directed in the dedimus potestatum the oath of office may be taken before any officr authorized by law to administer an oath
The persons to whom the Governor directs his dedimus are provided by Code section 144 to be:
"Such officers as are authorized to administer oaths
It is clear, under this provision, that the Secretaries of the Executive Department could not be authorized to administer the oath by a dedimus unless they had power to administer an oath without such authority.
As a general proposition no one has the power to admin- ister an oath unless authorized by law, hut it has been held that such authority may he implied from the power to charge fees for the administration of an oath. Or, as expressed in the case of:
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Bucher vs. Thompson, et. al. 32 P. R. p. 498.
"As the Legislature has, by direct Act, provided compen sation to such officers for administering oaths, it clearlY implies a power or authority in them to administer such oaths on the principle that that which is implied in a statute is as much a part of it as what is expressed."
A careful search through the laws of Georgia develops the fact that there is no express enactment authorizing the Sec: retary of the Executive Department to administer an oath. The only reference to such acts by them is contained in Code section 1246 and 1248, referred to in your letter, which provides a fee to them. for admin_istering an oath and issuing a certificate thereof to "a salaried officer." This Code provision exists in every Code of the State of Georgia, beginning with the first Code of Georgia of 1861. Code of 1861, s~ction 867 is the language now contained in Section 1248 of the Code of 1910. It apparently originated in the Act of December 18, 1792, where the provision under consideration appeared in this language: ''Administering an oath of office to any person where the profits thereof amount to upwards of $107.14 (25 pounds Sterling) per annum and giving a certificate thereof, $1.00." At that time it was received by the Secretary as a part of the compensation of his office:
Prince's Digest 1857, page 261.
In 1861 an Act was passed that: "The Secretaries of the Governor shall each receive the sum of twelve hundred dollars per annum and no more."
Acts 1861, page 70.
Prior thereto they had received no fixed salary, but the_ir pay had been fixed by annual appropriation. Evidently the codifiers of the Code of 1861 construed this Act to deprive the Secretaries of the fees theretofore prescribed and, accordingly, provided that these fees should be paid by them into the Treasury, which provision of the Code was adopted by the Legislature in 1861, and has been repeatedly so adopted since that time. This is the history of Code section 1248.
117

Applying the principle above to these provisions of the law, it is clear that the Secretaries of the Governor have the authority to administer the oath to salaried officers (whether State or County) and to issue a certificate thereof. The fee received to be paid into the Treasury. This authority would not, however, extend to that class of officers whose compensation was derived in the form of fees, but only those who received a salary as compensation. It follows, of course, that the Governor might direct a dedimus to the Executive Secretary for the sa:(lle purpose and applicable to the same class of persons.
Yours very respectfully, GRAHAM WRIGHT, Assistant Attorney-General.
Filing cases for Prison Commission should be charged to Public Buildings and Grounds.
January 28th, 1921. Hon. Claude A. West,
Executive Secretary, State Capitol, Atlanta.
Dear sir: Replying to your communication of the 27th, instant, in-
uiring as to whether the expense of purchasing three filing cabinets for use in the office of the Prison Commission should be charged to the maintenance fund for the Prison Commiasion or to the appropriation for Public Building and Grounds, I beg to advise that:
Under the Appropriation Act of 1919 this expense should be charged to the Appropriation for Public Buildings and Grounds.
Yours very respectfully, GRAHAM WRIGHT, 'Assistant Attorney-General.
118

Postmasters may hold the office Olf Notary Public and ex-Officio .rustice of the Peace.
February 4th, 1921. Ron. Claude A. west,
Executive Secretary, . State Capitol, Atlanta.
Dear sir: I have before me yours of the third instant, requesting an
opinion as to whether or not a postmaster is eligible for appointment as Notary Public and Ex. Officio Justice of the Peace:
Code section 258 prescribes the disqualifications from holding offce in this State. By subdivision 4 of this section "All persons holding any office of profit or trust under the Government of the United States, other than that of postmaster, or any of the several States, or Foreign States, are rendered ineligible to hold any civil office in this State."
Inasmuch as there is a specific exception made of the office of Post Master, there is no legal objection to the appointment of a person holding the office, to be a Notary Public and Ex. Officio Justice of the Peace.
Yours very respectfully, GRAHAM WRIGH'T, Assistant Attorney-GeneraL
Governor without authority to appoint persons to make arrests.
February 9th, 1921. Hon. Hugh M. Dorsey,
Governor, State Capitol, Atlanta. Dear sir:
I have before me your communication of the seventh instant, in which you request an opinion as to the authority of the Governor to authorize a person to make arrests, and, if no such authority exists, to suggest the method by which such authority could be conferred.
There is no authority in the law of Georgia authorizing the Governor to appoint a person for the specific purpose of
119

making arrests unconnected with the appointment to an official office.
The method suggested by you in your letter, of having the person deputized by the Sheriff of the County, or appointed County Policeman by the Ordinary, or County Commissioners, are both available, and are the simplest methods of procedure. In addition to this such authority might be conferred in those Counties having more than twenty thousand inhabitants by the appointment of such person by the Solicitor General, with the approval of the Judge of the Court, to act as Special Criminal Bailiff as provided by Penal Code, sections 808-9 which would confer upon such persons the authority to ma~e arrests.
Yours very respectfully, GRAHAM WRIGHT, Assistant Attorney-General.
Commutation of death sentence to life imprisonment, jurisdiction of the person of the prisoner immediately passes to the Prison Commission.
February 9th, 1921. Hon. Hugh M. Dorsey,
Governor, State Capitol, Atlanta. Dear sir:
I have before me yours of the seventh instant, requesting an opinion as to whether or not a commutation of the death sentence to life imprisonment of one convicted in 1894 of murder, sentenced to hang, and thereafter committed to the State Sanitorium, would have the effect of taking such person out of the State Sanitorium, and tu_rning him over to the Prison Commission.
Under the provisions of Penal Code section 1199 all convicts are placed under the jurisdiction of the Prison Commission of Georgia. By the provisions of Penal Code section 1229, the Prison Commission is required to m~ke provision at the State Farm for the care, maintenance and medical treatment of all insane convicts, with the provision, however, that such. con-
120

victs as '~ere in the State Sanitorium at the time of the passage of that AM should be returned by the Superintendent 1hereof to the Prison Commission so soon as arrangements had been made to care for such convicts at the State Farm.
Under these provisions of law upon the commutation of . the death sentence to -life imprisonment jurisdiction of the person of the convict immediately passes to the Prison, Com mission, and it then becomes their duty to provide for such insane convict at the State Farm, and the duty of the Superintendent of the State Sanitorium to return such convict to the Prison Commission so soon as they can receive him.
Yours very respectfully, GRAHAM wRIGHT, Asistant Attorney-GeneraL
Funds to credit. of a Tax Collector in a defunct Bank are not properly assignable to the State Treasurer, but the T. C. claim is a prior lien for State and County against said Bank, for the full collection of which he is chargeable.
February 9th, 1921. Hon. W. J. Speer,
State Treasurer, State Capitol, Atlanta.
near sir: I have before me the letter of Honorable George Cravens,
'Tax Collector of Appling County, stating that he has made an assignment to you, as State Treasurer of the sum of $9,271.22, which was on deposit to his credit as Tax C~llector in the 'Baxley Banking Company prior to the failure of that Bank, .and your request for advice as to the proper procedure on your part in this matter.
I am of the opinion that this assignment complicates matters, and does not give any more preference in the payment of funds than is given already to the Tax Collector by law. In my judgment, it would be best for you to refuse to accept this assignment, advising the Tax Collector that you will hold him responsible for the collection of this sum of money, and
121

for him to proceed to collect by proving his claim against the Baxley Banking Company as Tax Collector of the County.
For your information, I might add that these offces a short time ago gave an opinion to the State Superintendent of Banks, that funds on deposit in a defunct institution to the credit of the Tax Collector of the County were a debt due the State and County, respectively, under sub-division 1 of Section 19, of Article VII of the Banking Act, and upon prop- er proof should be paid by him according-ly, unless it could be shown that these funds belonged to the Tax Collector individually.
Yours very respectfully, GRAHAM WRIGHT, Asistant Attorney-GeneraL
Notaries Public and Ex-0 cio Justices of the Peace, notwithstandin!r the expiration of their prescrbed term of office, hold over untit their successors have been appo,inted and qualified.
February 9th, 192L Hon. Claude A. West,
Executive Secretary, State Capitol, Atlanta.
Dear sir: We are in receipt of your communication of the fourth in-
stant, in which you state that in a number of militia districts of the State no elections were held for the office of Justice of the Peace on December fourth, and that some of the Justices are continuing to perform the duties of the offices under their old commissions, and requesting an opinion as to whether or not, under these facts, they are authorized to continue to discharge these .duties.
Code section 261, provides:
".All officers of this State must reside therehr, at such places as are designated by law, and discharge the duties of their offices u"ntil their successors are commi:SSioned anci qualified."
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In the case of Walker vs. Ferrill, the Supreme Court held, under this section, that an appointee of the Governor to the office of County Commissioner continued to hold office after the expiration of his term until his successor was qualified. The same rule was followed in the case of Shackelford vs. West, 138th Georgia, page 159, and in the case of Bates vs. Bigby, 123rd Georgia, page 727.
The same rule was adhered to, the principle being amiounced in that case as follows:
"A Notary Public and Ex-Officio Justice of the Peace, although his resignation is tendered to and accepted by theGovernor, continues in office under the statutes of this State until his successor is appointed and qualified."
Under these authorities it is cle~tr that the Justices of the Peace, under the circumstances described above have authority, and it is their duty, to continue to discharge the duties of their offices until their successors are duly commissioned and qualified.
Yours very truly, GRAHAM WRIGHT, Asistant Attorney-General.
Renewal of Bank Charter and Amendment of Charter may be combined in one petition.
February 12th, 192L Hon. S. G. McLendon,
Secretary of State, State Capitol, Atlanta
I am in receipt of your letter of the 11th, instant, enclosing comm-.,mication from the Bankers' Trust Company, in which letter you desire an opinion as to whether or not an application for a renewal of charter, as well as an amendment to the charter can be contained in one application. or whether it will be necessary to have separate applications, one for a renewal of charter, and the other for the amendment of thecharter.
123

While the Banking Act of 1919 deals with amendments and renewals to charters in separate articles (Articles 9 and 10) the procedure established for both is practically the same, and, inasmuch as a renewal of charter is nothing more nor less than an amendment, and is so dealt with in a number of the statutes of other States, I cannot see any legal objection to combining the applications for amendment and renewAl in the same petition, complying, of course, with the requirements of both Articles 9 and 10. Where the matters are handled in this way, and the Banking Company elects to follow this procedure, in my opinion, the charge should be made for thr collection of a fee, both for. the amendment anrl renewaL
Yours very respectfully, GRAHAM WRIGHT, Asistant Attorney-General.

Postage for the Banking Department is chargeable to and must be paid out of the Contingent Fund of the State's Executive.

February 22nd, 1921.

Hon. Hugh J\1. Dorsey,

Governor, State Capitol, Atlanta.

l\fy dear sir:

In your letter of the 15th, instant, you ask nie for an opinion

as to whether under the statute law of Georgia, the State

Banking Department should pay for its postage stamps, or

whether it is proper they should be charged to the State and

paid for out of the contingent fund by the Governor. Re-

plying, your attention is respectfully called to the following

Acts of the Legislature:



Under section 8, Article 2, of the Banking Law, approved

August 16, 1919, it was provided:

"That the Superintendent of Banks shall be provided with suitable apartments at the State Capitol, furnished at the State's expense. He. shall reside at the Capitol and shall keep his office open daily, Sundays and holidays excepted.

124

He shall be furnished from time to time, necessary furni-

ture, fuel, light and other proper conveniences for the trans-

action of the business of his of!ice, the expense of which

shall be paid by the State in the same manner as the ex-

penses of other offices at the Capitol are paid."

.

Nothing more appearing th-an the above I would unhesitatingly advise y,ou that postage stamps do not come under the provisions of the foregoing section.
However, there was an amendment to the Georgia Banking Law, approved August 14, 1920, whereby the aforestated section was amended by inserting after the word "necessary" and before the word "furniture" the word "equipment" so that said section, as amended, is as follows:
"He shali be furnished from time to time necessary equipment, furniture, fuel, light, and other proper conveniences for the transaction of the business of his office, the expense of which shall be paid by the State in the same manner as the expenses of other offices at the Capitol are paid."
If there was nothing further, I would still gin it to you as my opinion that this amendment did not include postage stamps for that Department.
There is, however, another section of the Banking Law touching this present situation, which is Section 14, of Article 2, providing :
"All the expenses incurred in and about the conduct of the busines of the Department of Banking, including the salaries of the Superintendent of Banks, the Assistant Superintendent, the Examiners and office Assistants, and the traveling expenses incurred in examining banks, except the the office expenses provided for in Section 8 of this Article, shall be collected from the Banks as hereinafter provided. All amounts so paid shall be deposited by the Superintendent of Banks in such bank or banks as he may see fit and subJect to his check as such Superintendent, and shall be used for the expenses of the Department of Banking only."
This section again hints at this kind of expense, hut, without more, I would still he of the opinion that it does not coYer postagP, nor was it intended to cover postage.

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However, by an amendatory Act to the Banking Law, passed by the Legislature of Georgia, and approved August 14, 1920, Section 14, of Article 2, as above quoted, is amended so .as to read, as so amended, as follows:
"All the expenses incurred in and about the conduct of the business of the Department of Banking, including the salaries of the Superintendent of Banks, the Assistant Superintendent, the Examiners, the Office Assistants, and the traveling expenses incurred in examining banks, except the office expenses including printing, postage, stationery and office supplies, telephone, and telephone tolls, provided for in section 8 of this Article, shall be c9llected from the banks as hereinafter provided."
Now, the only provision in Section 8 IS that:
"He shall be furnished from time to time necessary fur~ niture, fuel, light and other conveniences for the transaction of the business of his office, the expenses of Which shall be paid for by the State
Applying the above amendment to section 14, it is clearly shown by this amendatory Act of August 14, 1920 that postage was construed and legislated to be one of the "other proper conveniences for the transaction of the business of his office.''
Therefore, I am constrained to give it to you as my opinion that the postage is to be paid for by the Governor out of the -contingent fund.
I beg to remain, dear sir, with high regard, Yours very respectfully, R. A. DENNY, Attorney-General.
'Civil legal instrumentalities provided for the enforcement of the Prohibition laws in Georga.
February 24th, 1921. Hon. Hugh 1\L Dorsey,
Governor, State Capitol, Atlanta. 1\ly dear sir :
In accordance with my conversation with you, and your re-
of quest of several days ago, I have made a careful study the
126

'instrumenta1ities provided for the enforcement of the prohi'bition laws of this State, and of the United States.
At your request, sometim~ ago I gave you a full and ex-haustive opinion as to the powers of the Governor of Georgia in this matter, which you doubtless recall, and this opinion ' 'is entirely exhaustive of that phase of the matter. It is need]ess to deal with the criminal phase of these laws, as they are so well known as to require no comment, and this opinion will be confined to those remedies, other than criminal. prosecutions, provided for by those laws and which are available to every citir:en where the criminal side of the Court fails to .function 'for any reason.
As early as the year 1899, an Act was passed in Georgia, :which is now embodied in Code Sections 5335, et. seq., declaring any place, where spirituous, malt or intoxicating liquors were sold in violation of law, to be a "blind tiger" and a nuisance, which might be abated or enjoined as such upon the application of any citizen, and providing for service and seizure where the parties were unknown. Of recent years this law has been invoked and the Supreme Court has uniformly upheld it. A public hearing upon such an injunction ena:..}>les the most searching investigation and examination in a public and open manner, which cannot be disregarded by officials, and serves to ventilate the entire situation to such :an extent as to effectively force the closing of such places.
Following the adoption of the prohibition law in Georgia, :and in aid of the enforcement thereof, at the Extraordinary Session of 1915 (Acts Ex-Session 1915, page 104) the Legislature again provided for the abatement of such places by injunction, and provided that suits thereunder might be brought :not only by any citizen of the County, but by the SolicitorGeneral of the Circut, and, upon direction of the Governor, by the Attorney-General of Georgia.
Realizing the effectiveness. of such a remedy, doubtless from observation, the Congress of the United States adopted similar, but more stringent procedure in the Volstead Act. By :sections 21-24, inclusive, of this Act (Federal Statutes Annotated, Supplement of 1919, pages 212 and 213) penalties are ])rescribed and the procedure is set out. Section 21, in sub-
127

stance, provides that all buildings where liquors are sold shalt be a common nuisance, that th' 1Jersons operating the same shall be subject to a fine of not more than $1,000, and where the building is so used with the knowledge of the owner,. that the building shall be subject to the payment of such fine. Section 22 of this Act, in substance, provides that an action may he brought in the name of the United States to enjoin. such place as a nuisance, by the Attorney-General of the United ~tates, or by any United States Attorney, or any prosecuting Attorney of any State, or subdivision thereof,. or by the Commissioner or his Deputies or Assistants, and. that the Judge may grant a temporary restraining order, and. ''upon the judgment of the Court ordering such nuisance abated the Court may order that the room, house, building,. structure, boat, vehicle or place shalll not be occupied or used. for one year thereafter." Section 23 of the Act makes such injunctions applicable t oany person who ",keeps or carries. around on his person, or in a vehicle, or leaves in any place for anotl1e rto secure, or who shall travel to solicit, or take or accept orders for the sale of liquors.'' Section 24 provides a. punishment by contempt proceedings of any person violating such injunction by a fine of not less tha:n $500.00 or more than. $1,000, and by imprisonment not less than thirty days or more than one year, or both.
These, briefly stated, are the laws provided (other than criminal laws) for the suppression of the violation of the prohibition laws: They are available to all citizens of the County, to all prosecuting officers, and to the Commissioner of Internal Revenue, and his deputies and assistants. They permit of a searching public investigation and are beyond doubt the only effective weapon for the enforcement of these laws in those places where officials and juries see fit to condone a violation thereof.
Replying specifically to your request for an opinion as to what officers are subject to impeachment: 'fhe Constitution' of Georgia, by Code section 6429, provides:
"6429. Par. 3. POWER TO IMPEACH: The House of: Representatives shall have the sole power to impeach all. persons who shall have been, or may be, in office."
128

This is the only provision of our law which in any wise defines who may be impeached. Beyond any doubt it applies to all Constitutional, State and County officials, and to all other State and County officials holding public office. The mere fact that the I~egislature has seen fit to provide another mode of removal of officials from office does not prevent an impeachment proceeding' which is one prescribed by the Constitution, and of which exclusive jurisdiction is vested in U.e Legislature, and though removal from office is one of. the results of impeachment it is not the only result of such judgment. (Code section 6426) Should any Act by express language seek to prohibit the removal of any public officer by impeachment, such Act would be clearly unconstitutional; it follows, therefore, that what could not be done directly could not be done by implication.
I trust that I have fully covered the matters submitted, and I beg to remain,
Yours very respectfully, GRAHAM WRIGHT, Assistant Attorn'ly-General.
Inadequate facilities to enable the Georgia Training Scl:lool for Boys or Girls to accept committed or sentenced children, can only be corrected by Legislative action. Situation unfortunate, but otherwise remidiless.
February 25th, 1921. Hon. Hugh l\L Dorsey,
Governor, State Capitol, Atlanta. l\Iy dear sir :
Replying to yours of the 15th instant, enclosing letter from Judge \V. J. Nunnally, and requesting an opinion on the legal matters therein involved, I beg to say :
In the event any child is sentenced to the Georgia Training Sehoool for Boys or Girls, who is a fit subject, under the law to be committed to such an Institution, and such Institution is unable, by reason of inadequate facilities to take such person, this is a matter for which there is no remedy except
129

through the Legislature o Georgia. 0 course, if their facilities were adequate and the refusal is merely captious they could be compelled by mandamus to admit such prisoner. Pending the time when such priiiloners are admitted to these Institutions it would seem that the law requires that they . be held in jail unless some other disposition of them be made by the Judge, or the Prison Commission.
The condition is regretable, but one which the Legislature only has authority to meet and remedy.
Yours very respectfully, R. A. DENNY, .Attorney-General.
Governor may not suspend collection taxes except upon emergency, and then such suspension must be state-wide.
Feb:ruary 26th, 1921. Hon. Hugh l\L Dorsey,
Governor, State Capitol, .Atlanta. My dear sir:
Replying to your inquiry of the 19th instant, with reference to a request preferred to you by a member of the Board of County Commissioners of Hancock County, to suspend the collection of the 1920 taxes until May 20, 1921, I beg to say:
Unquestionably, under Code section 162, the Governor has the authority to suspend the colle~tion of taxes due the State until the meeting of the next General .Assembly, but no long~ er.
It is also unquestionably true that a construction of Section 162 would authorize the Governor to suspend the collection of taxes due the State for a shorter time, if he so saw fit, than until the next session of the General Assembly.
Secti~n 162 simply prescribes the maximum length of time that he may so suspend, but does not limit a minimum length of time thereby.
Ho"ever, it is my opinion that the Governor has no authority under the above stated section to suspend the collection
130

of taxes (applying the facts set forth in the instant case) of one County unless he suspends for the same length of time in all the Counties of the State.
This too, notwithstanding Section 162 says he shall have the right to ''suspend the collection of the taxes o~ any part thereof." A proper construction of the words "any part thereof" simply means any percentage of the taxes due generally, but not a suspension for general reasons such as appear in the Hancock matter. Such Order would have to cover all the Counties in the State.
It is clear that Section 162 is intended to apply to an emergency, but not to a general depressed condition I(Jnly.
If the Comptroller-General, in his wisdom, agrees to allow the Tax Collector of Hancock County until May first to 'make his final settlement it certainly seems to me that so allowing ten days of grace would warrant allowing still further grace if he saw fit, by the same token.
However, the relief being granted until May first would, under our law, most effectuallly preclude and, defeat any effort on the part of the Sheriff of the County to do any injury to the tax payer after May first up to May 20th, the suspension of time that is asked for of you.
Fi Fas on all these taxes are supposed to have been issued by now. The whole machinery of the Tax Collecting Department would be seriously hampered by a compliance with the request.
It is my opinion that the law will not warrant it. Very respectfully yours, R. A. DENNY, Attorney-General.
Ul

The restoration to Its stockholders of a Bank by. the State Banking Department does not necessarily preclude its continuance as a State Depository.
March 3rd, 1921. Hon. Hugh M. Dorsey,
Governor, State Capitol, Atlanta. My dear sir:
Complying with your request, directly preferred to me by Miss Baird, your Private Secretary, that I give you an answer to the letter of State Treasurer, W. J. Speer, addressed to you under date of second instant, I beg to say:
Mr. Speer calls your attention to the fact that the Citizens Bank of Ocilla, Georgia, and the Effingham County Bank, of, Guyton, Georgia, both suspended banks, and both State Depositories under appointment by the Governor, have been restored to their stockholders, and have reopened for business. He enquires of you if there is any reason why these restored hanks should not continue their relations with the State as State Depos~tories, and whether their temporary suspension would disqualify them as State Depositories.
First: These two banks have been restored to their stockholders. There can be no "legal" reason why they should not continue as State Depositories.
Second: Neither would their temporary suspension disqualify them as such State Depositories by and under any legal grounds.
The question, therefore, resolves itself simply into a question of sound business judgment, for you to dispose of, with no legal complications appertaining thereto.
Respectfully submitted, R. A. DENNY, .Attorney-General.
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State cannot be sued for Injury of student at any of Its Institutions.
March 3rd, 1921. Hon. Hugh 1\f. Dorsey,
Governor, State Capitol, Atlanta. My dear sir:
Replying to your inquiry of the second instant, stating that Marion Dwight Sa,nders, R. 0. T. C. student at the State University, was badly injured at the University of Georgia in the prosecution of his work, and inquiring whether or not, assuming negligence on the part of those in charge of the grounds, "there is any method by which the State of Georgia could be sued, or the University, or any one in authority in any of the Departments of the State .of Georgia "could be made to pay?''
Replying, I beg to say : The University of Georgia is owned, operated, supported and controlled by the State of Georgia, through certain Trustees, holding office by appointment of the Governor of the State. It is, therefore, a branch of the State, and if any suit is to be brought it would have to be brought against the latter. The State cannot be sued. The following is the general rule:
"Where the State is the party doing the injury, there is no judicial remedy of any sort."
See 23rd Georgia, page 438. The young man having been a member of the R. 0. T. C., it occurs to me he might have some redress, compensation or relief from the United States authorities by reason of his connection with that Department.
Respectfully submitted, R. A. DENNY, Attorney-General.
133

Previous years' tags may not be used by the Commissioner of Agriculture for the current year's fertilizers.

March 4th, 1921!

Hon. Hugh M. Dorsey,

Governor, State Capitol, Atlanta.

My dear sir:

Replying to your inquiry of the 18th ultimo, calling atten-

tion to the number of fertilizer tags in the basement of the

Capit9l, and asking whether those old tags may be used by

the Commissioner of Agriculture, in order to save expense to

the State, I beg to say:

.

This matter was thoroughly thrashed out by me with and

for Mr. J. J. Brown, Commissioner of Agriculture, in the

early days of my incumbency as Attorney-General of the State.

Since the receipt of your inquiry. I have gone over the whole

matter again and am constrained to adhere to the former con-

clusion as reached by me, and as above referred to. The law

of the State prohibits the use of any tags printed for one

year in or for any subsequent year. These inspection tags,

issued by the State, are furnished by the Commissioner of

Agriculture; at a price, to the manufacturers of fertilizers and

manipulators, or agents representing them. Section 1793, of

Pa~ks Code, Volume 1, specifically says:

"Any tags left in the possession of the manufacturer, shall not be used for another Season, and shall not be redeemed by the Department of Agriculture."

So long as the above law stands as quoted upon our statute books, it is my opinion that previous year's tags may not be used by the Commissioner for the current year's fertili.P.:ers.
Respectfully submitted, R. A. DENNY, Attorney-General.

134

The School Warrants of Georgia are in no sense "Bonds" nor are they interest bearing per se.

March 7th, 1921.

Hon. Hugh l\L Dorsey,

Governor, State Capitol, Atlanta.

~

1\fy de.ar sir:

Your Executive Secretary, Mr. West, has submitted to me

the letter of Mr. Campbell M. Krenson, representative of the

Guaranty Company of New York, dated the 7th instant,

wherein he asks whether or not the school warrants issued by

the State would come under the provision of the Banking Law,

Chapter 2, Article 6, Section 239. Mr. Krenson designates

them as "bonds" and it appears that on that rock he seems

to meet with the danger of foundering. The school warrants,

as issued by the State, are in no sense "bonds" of the State,

but they are evidences of indebtedness, and would not come at

all under the provision of the Banking Law quoted and cited

hy Mr. Krenson. Nor, are they in any sense, interest bearing

obligations. I return herewith 1\Ir. Krenson 's letter.

Respectfully submitted,

R. A. DENNY,

Attorney-General.

Life of Bank Charter unchanged by new Banking Law.
March 9th, 1921. Hon. S. G. :McLendon,
Secretary of State, State Capitol, Atlanta.
Dear sir: Replying to ,YOUr inquiry of the third instant, submitting
a letter from Judge John T. Allen, with reference to the life of a bank charter issued under the law of the State of Georgia, I beg to say:
Section 2215, of Parks Code of Georgia, volume 2 seems to definitely fix the life of all corporations (including banks) chartered by the General Assembly at Thirty years from the
135

date of the grant of the charter. This was the law before

the Legislative chang-e providing for the chartering of banks

by the Secretary of State instead of the Legislature. By

that Legislative change it was provided that the same general

rules and conditions appertaining to legislative charters

should in like manner appertain to those granted under the

new regime. Therefore, the thirty-year life of a banking

charter was continued.

Under the Acts of 1893, page 71 (See Parks Code, Volume

2, section 2266) banking corporations were specifically char-

tered for a term of thirty years with the right of renewal

thereafter. This section of the Code was re-enacted under the

ne" banking law, approved August 16th, 1919 in chapter 17.

I therefore conclude that the life of a charter of a bank

under the existing law is as heretofore, to-wit: thirty years.

I have the honor to remain,

Respectfully yours,

.

R. A. DENNY,

Attorney-General.

The State's Executive has no power, authority or contro'l over a Deputy Sheriff of a County acting as such.
March 9th, 1921. Hon. C. A. West,
Executive Secretary, State Capitol, Atlanta.
Dear Mr. West: Replying to your inquiry of the eighth instant, responding
to an inquiry from Mrs. W. H. Felton, of Cartersville, calling attention to the contention of a Deputy Sheriff of Bartow County, who claims the right to serve as a member of the County Tax Assessors Board, I beg to say:
I cannot see how, or wherein the Governor should be called upon to intervene, interfere or act with reference to the question raised. It appears to me that the whole matter is solely one to be thrashed out by the County authorities, and their action, so far as the Executive of the State is concerned,
136

would be conclusive. It would be the duty of the County authorities of Bartow County t,o consider, attend to and correct any errors or mistakes in connection with the matter mentioned.
The Deputy Sheriff is not an appointee of the Governor, nor is he commissioned by the State's Executive, and the State's Executive has no power, authority or control over him as such.
Respectfully submitted, R. A. DENNY, Attorney-General.
Election Managers holding elections for Justices of the Peace and Constables are entitled to compensation for their servic_es and should be paid.
March 8th, 1921. Ron. C. A. West,
Executive Secretary, State Capitol, Atlanta.
Dear sir: Replying to yours of the fourth instant, requesting an
opinion as to whether the election managers holding elections for Justices of the Peace and Constables are entitled to compensation fo.r their services, I beg to say that: Sub-section 13, of Section 82 of the Code is, in my opinion, applicable to elections of Justices of the Peace and Constables, and the compensation therein provided for should be paid.
Yours very respectfully, GRAHAM WRIGHT, Assistant Attorney-General.
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Ordinaries without authority to appoint Justices of the Peace except for the interim between vacancy and election called to fill same.
March 9th, 1921. Ron. C. A. \Vest,
Executive Secretary, State Capitol.
Dear l\Ir. \Vest:Replying to yours of the eighth instant calling attention to
some counties of the State where elections for Justices o the Peace were not held on December fourth as is by law provided, and that the Ordinaries have appointed citizens to fill such positions, and upon such appointment request commissions from the Governor, I beg to say:
I know of no authority authorizing appointments of this character, nor should such appointments receive commissions from the Governor. Upon the failure to hold the elections as prescribed by law on the fourth o December the Ordinary has the privilege of appointing only for such period, or vacancy as may ensue, filling said place up to the time of the call for an election for the purppose of filling the office.
Respectfully submitted, R. A. DENNY, Attorney-General.
Benzol comes vyithin the Inspection law requirements of Georgia.
March 14th, 1921. Hon. J. J. Brown,
Commissioner of Agriculture, State Capitol.
Dear Sir: I am in receipt of your inquiry of the 18th of ' February, in which you atate that certain companies in Geor-
gia buy in car lots Benzol, which is a hi-product of coal, which is blended with gasoline and sold by them under certain trade names for use in automobiles, and requesting an opinion from me as to whether or not it is your duty to make inspection of this Benzol.
138

The inspection of oil, gasoline and all other like products is dealt with by the provisions of Code Sections 1802 to 1814, inclusive. These sections are found in Volume 1 of Parks' Code of Georgia, and taken in conjunction with Section 642, of the Penal Code (See Parks' Code, Volume 6, Section 642) constitute all the la wthat is necessary to quote to you with regard to the question in hand.
The only provisions defining the products to be inspected by you are thos~ recited in Section 1809 of the Code "wholly or partly composed of naphtha, coal oil, petroleum, or products thereof, or of other substances or materials emitting an inflammable vapor: which are used for illuminating or heating purposes in lamps, or stoves, within this State.
These must, however, be taken in consideration in connection with Section 642, of the Penal Code which confirms the classes of material that you must inspect and which are subject to the inspection of the Agricultural Department.
Under Section 1809 (a) it is clearly made the duty of the inspectors to inspect all illuminating oils sold, and to inspect all gasolines, benzines and naphthas sold, or offered for sale in this State.
Benzol is a bi-product of coal, and all .naphthas, benzines, kerosenes, gasolines and kindred products are also hi-products of coal. This being the case Benzol comes clealy and completely within the .purview and requirement of the section requiring inspection.
Sections 642 of the Penal Code clearly provides that it shall be the duty of all persons keeping for sale or selling any naphthas, kerosenes, gasolines, or any hi-products of a similar character to have same inspected. The mere fact that Section 1809 of the Code seems to exclude any other products except those for illuminating or heating purposes in lamps or stoves would not exclude the duty of the Commissioner of Agriculture to have Benzol inspected because it clearly comes under the head of naphthas, which are added, in addition to illuminating oils by the section hereinbefore referred to. And, in addition to Section 1809, Section 642 of the Penal Code clearly covers the situation, it being admitted and insisted that Benzol is a bi-product of coal and a naphtha.
139

Besides, Section 1809 (a) of the. Code makes it the duty of all inspectors of illuminating oil to inspect all gasolines, benzines and naphthas sold or offered for sale in the State.
Benzol is unquestionably a naphtha. The above specific provisions of the Code as set out are the only sections of the law which I find dealing with the inspection of gases and oils by JIOUr Department,. and these .provisions are to be construed strictly and confined to the articles stated in laws of this character. I am of the opinion that y'our Department has full authority to inspect and require payment of fees upon the Benzol in its crude state, it being a bi-proquct of coal, and clearly a naphtha, as has been defined by your State chemist.
With reference to the right of the Department to collect fees for this inspection I would again simply call yo'ur attention to Section 642, of the Penal Code, which makes it a misdemeanor for any manufacturer or dealer to refuse to have an inspection of this product, as well as all other gasolines or like commodities.
Respectfully submitted, R. A. DENNY, Attorney-General.
The Act of 1917, page 197, does no:t repeal Section 1128 of the Code, whereby the Comptroller General has discretionary authority to grant extension of time to Tax Collectors tO! make their final reports.
March 15th, 1921. Bon. William A. Wright,
Comptroller-General, 1 State Capitol.
Dear General: Replying to your inquiry with reference to the problem presented you with reference to the statutory limit for Tax Collector's final reports as regards Lucien Harris, the retiring Tax Collector of Fulton County: .I beg to give you my reply, and opinion thereon, as follows:
Prior to the year 1917 (when the only conflict with reference to your duties appertaining to this matter arose by reason of
140

the passage of the Senator Odom Act, (See Acts of 1917, page 197) the laws appertaining to Tax Collectors and Tax Receivers were quite as stringent ~s they are under the new Act: the Tax Receivers and Tax Collectors were required definitely and affirmatively to do their work and make their final reports within a prescribed time as fixed by statute.
However, as far back as the year 1843, the Legislature, realizing the stringency and drasticity of the laws appertaining to Receivers and Collectors of taxes passed an ameliorating, or relieving statute, which is codified in Parks' Code, Volume 1, as Section 1128. By this arrangement, or enactment, the Comptroller-General has certain discretion in his determination as to what constitutes a sufficient excuse on the part of either the Tax Collector or Tax Receiver for. his failure to make his returns and final report within the time prescribed by law. If, in the discretion of the Comptroller-General, the excuse furnished him was good and sufficient it was within his power to grant an extension of time in which to complete his work.
This was the situatio~ up to the year 1917 when Senator Odom's Act was passed, as is found in the Acts of 1917, hereinbefore referred to. By this last mentioned Act, the Tax Collector is required to collect interest on all taxes not paid by the twentieth day of December at the rate of seven per cent per annum. There are' various other drastic duties required of him that are not altogether in conformity with the previous la", hut all l;taving reference to an effort on the part of the State to req_nire the fullest promptness in making final returns and reports of the Tax Oollector. Applied specifically our law gives to Tax Receivers as the same is now in force by the Act of 1917, more latitude and more time, ana they can be granted more time in which to mqke their fiwil reports than is accorded, by the drastic clauses of the Act of 1917, to the Tax Collector. I am clearly of the opinion that this was not the intention on the part of the Legislators, and I am clearly of the opinion that a proper construction of the several Acts with reference to the Tax Collector would not warrant the exaction of such a drastic interpretation of the law as it now stands.
141

In short, I am of the opinion that whilst the law of 1917 creates a new basis and a new line of duty for the Tax Collector in closing up his books promptly, does not repeal Section 1128 of the Code hereinabove referred to, nor does it affect Sections 1125, or 1181, of the same Code. In short, there is nothing incompatible with the enforcement of the Act of 1917 with the same discretionary privilege accorded to the Comptroller-General as is granted by the above section quoted in the old law running back as far as the year 1843.
I, therefore, give it to you as my opinion that you have perfect authority to grant l\Ir. Harris such relief, or extension of time as, in your discretion, may seem best and proper under the circumstances and exigencies arising in this particular case.
I have the honor to remain, dear sir, Very respectfully, R. A. DENNY, Attorney-General.
Code Section 1230 applies to all felony convicts In the State Penitentiary, but not to misdemeanor convicts, and the costs of trial for escapes of felony and not misdemeanor convicts are borne by the State.
March 15th, 1921. Hon. Hugh M. Dorsey,
Governor, State Capitol, Atlanta. Dear Sir: I have before me yours of the 5th inst., enclosing a communication from Judge James B. Park, requesting an opinion as to whether or not, under the provisions of Code Section 1230 of the Oriminal Code, the State is to pay the expenses and fees of trials for the escape of misdemeanor convicts from the penitentiary, and as to what fees and expenses would properly be paid by the State in the conviction for escapes of felony convicts from the penitentiary. The Section of the Code in question, which provides:
"The expenses of all trials for escapes from the peniten tiary or attempts to escape, and for all other crimes com
H2

mmited by penitentiary convicts while confined in the penitentiary, shall be paid by the State, upon a bill of costs to be certified by the Judge trying the case"-
is codified from the Act of 1890-91, page 86. At the time of . the passage and approval of that Act, there was no law in existence providing for the admission of misdemeanor convicts to the penitentiary of the State of Georgia, and construing the provision~ of this Section in relation to the provisions of Section 2 of the Criminal Code defining the meaning of the word "felony" and "misdemeanor," it is clear that the words "penitentiary convicts,'' as used in this Section, have application only to felony convicts and in no sense apply to a person conYicted for a misdemeanor. I am quite clear, therefore, that the provisions of this Section are without application to a misdemeanor convict, even though he might be confined at the State Farm or in the State Penitentiary.
As to what is embraced in the language-"the expenses of all trials for escapes," 'yould seem to me clearly to cover the court costs of the officers of court i~ such trials, as aside from these facts and provisions, there is clearly no expense incident to a trial of a criminal in tliis State which is not already borne either by the State or the County, and it is manifestly impossible to segregate the expenses of a trial, in so far as the payment of the jurors and other items of the trial are concerned ''"hieh are now bo,rne by the County, from the general court expenses. It would seem, therefore, to he clear that this language must, of necessity, have application to the fees of the officers of court in such trials, which are ordinarily charged in the bill of costs.
The manifest and evident purpose of this provision of the Code is to encourage the officers of court in conducting such prosecutions, in order to suppress escapes and attempts to escape, the idea doubtless being that these officers, knowing that a convict will be unable to pay any fine or 'costs imposed upon him by the court, would be less likely to exercise great diligence in securing conviction in these matters than they would be should their costs be guaranteed to tht>m by the State upon a conviction.
143

Therefore, upon full consideration of the matter, I am of the opinion that in those cases involving the conviction of felony convicts for escapes or attempts to escape from the State Farm that the costs should be paid by the State, in accordance with the provisions of this Section, the costs properly chargeable being the costs chargeable against the defendant upon a conviction under the general criminal laws of the State.
I trust, dear sir, that I have covered this matter fully, and I beg to remain,
Very respectfully, R. A. DENNY, Attorney-General.

The right of inspection of Fertilizers does not extend t01 purchases and

shipments from sister states.

l

March 17th, 1921. Hon. J. J. Brown,
Commissioner of Agriculture, State Capitol.
Dear Sir: Replying to your letter of inquiry of the 16th instant, wherein you enclose a copy of a letter dated February
the fourteenth, 1921, from your Mr. 'N. H. Harrold, asking
information and opinion as to whether the users of fertilizers in South Georgia or any where in the State may buy fertilizers in a sister State and have them shipped over here and use them without reference to any requirement of Georgia with reference to the ta!?ging and inspection of such fertilizers.
This question is not a new one, and has been thoroughly sifted and thrashed out by both our Supreme Court and our Court of Appeols. Answering first your inquiries, therefore, letters "a," "b" and "c" at the bottom of the letter, I beg to say:
"A." In the law of Georgia there is nothing to prevent a citizen of Georgia from going across the line into a sister State and purchasing there fertilizers and having them shipped to his farm in Georgia without inspection or tags.
144

, ''B.' ..:\ citizen of Georgia cim order fertilir;ers by mail or telephone from a sister State and ha'Ve such fertilizers shipped to him here in Georgia independent of any inspection or tag law.
"C." A representative from another State cannot come , into Georgia and take orders, etc., because, under Penal Code, Section 642, this would be a misdemeanor on his part and he would be amenable to the Criminal law of the State of Georgia; also he would be amenable to the laws of Georgia as provided by Section 6 of the Act of 1901, page 65. He would also be amenable under Section 14 of the same Act of 1901.
Answering specifically the inquiries as set forth in the letter of Mr. Harrold to your Department, I beg to say: Florida dealers, or manufacturers of commercial fertilizers have a perfect l'ight to sell their product in Florida, they thereby becoming Florida contracts, and have an equal right to ship the fertilizers so sold in Florida to a Georgia citizen into Georgia through the purchasers' orders. There is no hiw requiring such fertilizers so shipped by Florida dealers into Georgia, upon a trade made in Florida, to have them tagged or inspected.
A Florida manufacturer of commercial fertilizers has a legal right to ship his goods into Georgia sold through a Florida dealer in Florida without complying with the Georgia tag law governing the shipping of fertilizers in this State.
This opinion in toto is fully borne out. and confirmed by the Supreme Court in the case of:
Atlantic Phosphate Company vs. Ely, 82nd Ga., p. 438. This decision was rendered in 1889. Subsequently the Court of Appeals rendered a similar decision thoroughly covering this question, which. decision can be found n the case of Newton vs. Coe Mortimer & Co., 20th Appeals 736, as late as 1917. The two above decisions fully cover the questions propounded to me.
Respectfully submitted, R. A. DENNY, Attorney-General.
145

The refusal of an Insurance Agent to acknowledge service, so long as he does not secrete himself in such manner that service cannot be lawfully perfected upon him, does not vacate the office so as to authorize another appointment.

General William A. Wright, Insurance Commissioner,

March 19th, 1921..

State Capitol. Dear Sir : Complying with your request for a construc~ion of Code Section 5 2446 and 2447 as to the duty of an Agent appointed by an Insurance Company, or by yourself, to acknowledge and receive service in behalf of foreign Insurance Companies and as to your right of removal of such officer by reason of his refusal to so acknowledge service; I beg to advise you:

Under. the provisions of Code Section 2446 it is perfectly clear that any such agent has the power to acknowledge service of any suit brought in the State of Georgia, or such suits may be served upon him in the usual manner. I find nothing in this section making it compulsory upon such agent to acknowledge service and inasmuch as the section specifically provides that service or process may be perfected by serving him, I am quite clear that .the power to acknowledge service is simply a power given him, which, however, is not compulsory under the statute and that he might decline to so acknowledge service in which event service would, of necessity~ have to be perfected in the ordinary and usual manner.

Code Section 2447 provides the conditions under which the Insurance Commissioner may appoint such agents. These provisions are as follows: First, Tha.t he shall have absented himself from the State, or his usual place of business or abode, or, Second: shall secrete himsalf so that process may not be served upon him, and, Third: shall have become disqualified from any cause whatever, or, Fourth: shall have died. Under either of these conditions you are authorized to appoint an agent in his place. These appear to be exclusive and you will note that the refusal of such agent to acknowledge service is not included in them. The language is this section:

146

''So that process may not be served upon him,'' would imply the direct contrary, and shows clearly that the mere refusal to acknowledge service would not be the basis of a removal of such an agent so long as he can be found and service could be lawfully perfected upon him.
I, therefore, conclude that the refusal of such agent to acknowledge service so long as he does not secrete himself in such manner that service cannot be lawfully perfected upon him does not vacate the office in such manner as would authorize the appointment by you of another agent.
Very respectfully yours, GRAHAM WRIGHT, Assistant Attorney-General.
Fees for registration of birth and death certificates are payable by the Treasurers of the Counties direct without audit or approval by the County Boards, which is unnecessary.
March 19th, 1921. Ron. Hugh M. Dorsey,
Governor, State Capitol, Atlanta. My Dear Sir: I have before me yours of the ninth instant, in which you state that the Commissioner of Health in the State of Georgia informs you that the County Boards of seYeral counties have refused to pay for the registration of birth and death certificates, and, in which, you request an opinion as to whether or not it is necessary to obtain the approval of the County Board to the account of the Registrars for such registration, or whether the same may be paid by the Treasurer on presentation of the bill therefor to the Treasurer. By the provisions of Code Section 410 all claims against counties must be audited and registered by the Ordinaries of their respective counties, and an order on the Treasurer issued to claimants of same, except where otherwise provided by law. The Acts of 1914, page 171, provide for the registration of vital statistics. By Section 19 of this Act the compensation of the local registrars is provided for. This section, in part, provides:
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"All amounts payable .to a local registrar under the provisions of this section shall be paid by the Treasurer of the County in which. the Registration District is located, upon the certification of the State Registrar."
The effect of this law is to require the payment of these fees by the County Treasurer direct, and it is unnecessary for these claims to be audited by the Board of Commissioners of the county. Upon the presentation to the County Treasurer of properly certified claims, in accordance with Section 19, above referred to, to the person entitled thereto. Such provision as that contained in the Act of 1914 is clearly legal and it is a proper exercise of the Legislative discretion:
Clarke vs. Eve, 134th Ga. 788. phatham County vs. Daughtry, 120th Ga. 121.
and cases there cited. I trust I have covere.d the matter fully and beg to remain, Yours very respectfully, GRAHAM WRIGHT, Assistant Attorney-General.
Tax Collectors are not holders of monies unaccounted for until after the date fixed by law for settlement has been reached; therefore, being elected to other office, oath to that effect may be taken.
March 19th, 1921. Ron. C. A. West,
Executive Secretary, State Capitol.
Dear Sir: I have before me yours of the eighteenth instant, in which you state that in some of the counties of this State the former Tav Collectors have been elected to other offices, and requesting an opinion from these offices as to whether such Tax Collectors can subscribe to their oaths of office with the provisions therein that they are not the holders of any monies due the state or the county, when as a matter of fact
148

their final settlement for the taxes for the year 1920 will not be made by them until April 20th.
I am of the opinion that such oath can be taken and subscribed by any Tax Collector 'lvho has otherwise properly accounted for all monies coming into his hands and the fact that he has not, as yet, made settlement for the taxes of 1920, and will not do so until April 20th, would not preclude his taking the oath.
The law gives to these Tax Collectors until April 20th, to make such final settlement, and any Tax Collector who has otherwise fully complied with the provisions of the law is clearly not the holder of any public monies unaccounted for until such date as the law expressly gives him to account for the same, or, in other words taxes for the year 1920, charged to the Tax Collector of the several counties of this State by virtue of their duty to collect the same becomes money of the State unaccounted for only after Such time as they are required by law to make final settlement, and until such time these monies in their hands would not be unaccounted for within the meaning of the oath prescribed by Code Section 269.
I trust I have covered the matter fully, and beg to remain, Yours very rescpectfully, GRAHAM WRIGH'r, Assistant Attorney-General.

Criminal Warrants may be sworn out in any Co.unty for the arrest of persons in another County and executed by Sheriff of either County; and the Judge of the Court, In the County where the alleged crime was committed and stands for trial, may order de tention of the prisoners in any 'other County pending commitment.

Ron. H~gh M. Dorsey,

March 25th, 1921.

Governor, State Capitol, Atlanta.

My Dear Sir:

I have before me your request for an opinioll' as to where a

criminal warrant may be issued in this State, and by whom

served and executed ; and as to whether a person arrested

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may be confined in a jail other than in the county where the crime is committed; and as to who may hold the commital trial.
Section 903 of the Penal Code provides that any Judge of the Superior, City or County Court, or Justice or any corporation officer clothed by law with the powers of a Justice of the Peace, may issue his warrant for the arrest of any offender against the penal laws.
By Penal Code, Section 919, it is provided:
"An arresting officer may arrest any person charged with . crime, under a warrant issued by a judicial officer, in any county of the Stat.e, without regard to the residence of said arresting officer; and it is his duty to carry the accused, with the warrant under which he was arrested, to the county in which the offense is alleged to have been committed, for examination before any judicial officer of that County."
You will observe that there is no restriction upon the person authori~:ed to issue warrants. Any of the officers named may issue a warrant for any offender against the penal laws of this State, and Section 919 above quoted in terms provides that any arresting officer of the State, without reference to his residence, may execute such warrant. Where such warrant is issued, the Judge of the Superior Court may, if he deems it for any reason unsafe to confine the prisoner in the county where the crime was committed, require his removal to and incarceration ni the jail of any other county of the State, by proper order.
It is the right, however, of such defendant to demand a commitment trial in the county where the crime was committed within a reasonable time after his arrest. Section 919, above cited. Such trial may be held before the Judge of the Superior Court of such county (Code Section P. C. 931) and the holding of such court and binding over the defendant would not diskualify the Judge in the subsequent trial of such defendant in the Superior Court:
Cochran vs. State, 113th Ga. 736. , Replying specifically to the second paragraph of your letter and applying the law above: a warrant coul9. be sworn out in
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Fulton County for the arrest of the defendant in Jasper County which warrant could be executed in Jasper County by the Sheriff of either Fulton, or Newton, or any other county, and the Judge of the Superior Court of Jasper County could order these defendants confined, pending commitment in any county in Georgia where they may be held for a reasonable time before such trial:
King vs. State, 6th Ga. Appeals 352. Yours very respectfully, GRAHAM WRIGHT, Assistant Attorney-General.
School Warrants of the State of Georgia, after being discounted, are thereby made or termed "interest bearing" within the meaning of New York 'statutes.
March 25th, 1921. Hon. Hugh l\L Dorsey,
Governor, State Capitol, Atlanta. My Dear Sir: With reference to my letter of March 7th, 1921, dealing with the construction of school warrants issued by the State and their application under the provisions of Banking Law, Chapter 2, Article 6, Section 239, of the State of New York, I beg to say: At the time that your secretary, Mr. West, formally submitted this question to me, I understood that the only question submitted was as to whether or not these warrants could in any sense be considered as Bonds of the State of Georgia, and upon their face, without reference to any sale or negotiation of such warrants, whether or not they were interest bearing obligations. My opinion, therefore, given you on March 7th, while I adhere to the same so far as it affects these questions is without application to those warrants upon their being discounted, whereby a percentage is deducted from the principal, in lieu of a stated rate of interest fixed therein. You now present to me, for the first time, the question of whether or not these school warrants would be considered "interest bearing obligations" of the State, within the meaning of this law, after being so sold at a discount by the State.
151

Bearing in mind the purpose of this law to protect the institutions purchasing this character of paper and to see that such institutions do not suffer by reason of the purchase of nonproductive securities, the question of what is an interest bearing obligation should, in my opinion, be liberally construed to conform to the purposes and intentions of this law.
The Act of 1915, providing for the issuance of these warrants (Acts of 1915, page 56) by Section 2 of the Act provides distinctly that it shall be lawful to sell, at a dis~ount, said warrants to any person, bank, or banking institution, the said sale to be made at the lowest possible rate of discount, which shows a manifest and clear cut intention upon the part of the Legislature of the State of Georgia to provide payment for the use of the money advanced upon these warrants in the form of discount in lieu of interest. These "arrants, so far as I can learn, have always been discounted by the State of Georgia, and my information is that the warrants issue~ this year have been accepted by a broker 'upon an agreed discount.
In Volume 7, Corpus Juris, page 712, a discount is defined to be ''a transa'ction by which a bank in making a loan on a promissory note or other paper deducts the interest in advance, so that the borrower receives only the face value of the obligation, less the interest on such face value from the time when the loan is negotiated until its maturity." 'And in Volume 3, Ruling Case Law, page 607, it is said: A discount may he defined as a loan upon an evidence of debt where the compensation for the use of the money until the maturity of the debt is deducted from the principal and retained by the lender at the time of making the loan." The word "discount" has, in commercial usage a large meaning, and is more comprehensive than the mere purchase of paper, and such language covers loan transactions as well as actual purchases and discount, as understood within their restricted meaning: Sundahl vs. Edmunds First State Bank, 155 N. W., page 794.
Applying this definition of the word ''discount'' to those warrants it appears that the use of the word ''discount'' on these warrants is simply another method of calculating, or charging, or collecting the interest to be charged thereon, and after such discount has been charged by the purchaser of such
152

warrants, such warrants then, so far as the purchaser was concerned, would become and he interest bearing obligations, as much for his purposes as thou!!h the obli~ation itself bore Interest upon its face. Construing the word ''discount'' in the comprehensive sense. referred to above and bearing- in mind the liberal interpretation and construction which undoubtedly should be given to the Act above referred to of the State of New York, and in view of the fact that the Act of 1915 of the State of Georgia above referred to specifically provides for the discount of these papers, I am of the opinion that these warrants, after being discounted by the State of Georgia, and in the hands of a savings bank, or like institution in the State of New York, under the provisions of the law above referred to, would properly be considered "interest bearing obligations" so far as that institution itself was concerned, within the meaning of the New York statute above referred to.
The fact that the Banking Department of New York placed this construction upon this law relieves any question of doubt that might exist with reference to this matter.
I trust, dear sir, that I have covered the matter fully, and beg to remain,
Yours very respectfully, R.A. DENNY, Attorney-General.
An employee of the U. S. P. 0. may be commissioned an ex-officiO! Notary Public.
1\farch 26th, 1921. Ron. Claude A. West.
Executive Secretary, State Capitol, Atlanta. Dear sir: Replying to your verbal request for an opm10n as to whether or not an employee of the United States Post Office can be legally commissioned as an ex-officio Notary Public by the Governor, I beg to say that: I can see no objection whatever to the issuance of a commission to an employe of the post office as a Notary Public.
153

The law prohibits any one holding an office under the United

States Government, other than Post Master fl'lom holding an

office under the State Government, but does not prohibit an

employee of the U. S. Government from accepting such an

office.

I trust this is the information you desire.

.

R. A. DENNY,

Attorney-General.

Governor has authority to require Attorney-General to assist in prose cution of criminal case; but- has no authority to employ special counsel in criminal case. Judge of Superior Court has authority, with' limitations, to appoint Solicitor pro-tem.

Hon. Hugh M. Dorsey,

1\Iarch 28th. 1921.

Governor, State Capitol, Atlanta.

Dear Sir: -

I have before me your request for an opinion upon the fol-

lowing matters:

First: The authority of the Governor to require the Attor-

ney-General to assist or conduct the prosecution of a criminal

case in the trial court,

Se.cond: The authority of the Governor to employ special

counsel for such purpose.

Third: The right of the Judge -of the Superior Court to ap-

point a Solicitor Pro Tern in such case, pending in the trial

court.

Answering the :first of these inquiries, it is clear that under

the provisions of the Constitution of the State of Georgia

(Code Section 6529), and of the statutes of the State of Geor-

gia (Code Section 254), you have the right to .require such

services of the Attorney-General of the State of Georgia.

Answering your second inquiry above, I am unable to find

any authority given to the Governor of the State of Georgia

to employ special Counsel to assist in the conduct of criminal

cases.

The law specifically authorizes the employment of Counsel

by the Governor in civil cases, but the clear intent and pur-

154

pose of the law is that the conduct of criminal litigation shall

be c-onducted in behalf of the .State without additional ex-

pense to the .State, other than that provided for to the Solicitor

General. I am, therefore, of the opinion that you are without

authority to employ Counsel at the expense of the .State in this

character of case.

'

Answering your third inquiry, I beg to say that the matter

of the appointment of a Solicitor Pro Tem is provided for in

Code Section 4929. Under this Section, the Judge of the Supe-

rior Court is given authority to appoint a Solicitor Pro Tern

where the Solicitor General of the Circuit is absent or indis-

posed or disqualified from interest or relatonship to engage in a

prosecution. Under such circumstances, the Judge of the Supe-

rior Court may not only appoint a Solicitor Pro Tern, or, if he

deems it desirable, he may command the services of the Solici-

tor General of any other Circuit accessible, or he may make

requisition on the Governor for the Attorney-General, as the

emergencies, in his discretion, may require. Under any of

these circumstances, the Judge may appoint a Solicitor Pro

Tern. I do not believe that the authority would exist except

in the specific instances enumerated in this statute.

I trust, dear sir, that I have covered your inquiry fully, and

I beg to remain,

Very respectfully,

GRAHAM WRIGHT

Assistant Attorney-General.

Administrator of estate cannot be required to pay taxes of his Intestate until after expiration of first twelve months of his ad ministration.
March 31st, 1921. Ron. William A. Wright,
Comptroller-General, State Capitol. Dear Sir:
I have before meyour request for an opinion as to whether or not the Administrator of the estate of a person who died December 2nd, 1920, can be compelled by levy and sale of
155

property of the intestate under tax execution for 1920 taxes to pay such execution prior to twelve months from the date of his a.ppointment as Administrator.
The policy of the law of Georgia is to give to an Administrator a period of twelve months in which to ascertain the condition of the estate before he is compelled to pay out any funds to creditors or distributees of the estate. Under provisions of Code section 4000 providing for the manner and order of payments to be made by the Administrator taxes are classified as the fourth class in the order of payment, and it is clear, that our law intends such taxes to be paid subsequent to the first three classes. In the <:ase of Irvine, Administrator vs Irvine, 145th Georgia Reports, page 660, the question was presented as to compelling payment by an Administrator of expenses of administration prior to the expiration of this twelve months period, which e~penses are classified in the third class, and above taxes in the order of paying debts under the Code section cited, and in this case the Supreme Court held the twelve months period to be applicable. The Court says in this opinion:

"Wlhere claims are presented for payment from the assets

of the estate in the hands of the administrator it is but

reasonable that the administrator should have opportunity

not only to investigate the validity of the claims but to

make provision for their payment in case they should be

found binding against the estate

These

provisions of the Code show the well defined policy of the

law that an administrator shall not be called to account and

pay claims against the estate out of the assets in his hands

for administration before the expiration of one year from

the date the administrator qualifies."

Under this authority and the several Code Sections of Georgia I am satisfied that an administrator under the circumstances of this case could not be compelled to make settlement of taxes due by the decedent until the twelve months period had expired.
yours very respectfully, R. A. DENNY, Attorney-General.

156

.Tile Board of Managers of the Georgia Training School for Boys, through its chairman, has full authority to. grant an inmate, fdr good and sufficient reason, a two weeks parole
.April 5th, 1921. Hon. Hugh 1\I. Dorsey,
Governor, State Capitol, Atlanta. l\fy dear Governor:
Replying to the submitted letter of )lr. F. J. Paxon, as Chairman of the board of Managers of the Georgia Training School for Boys, addressed to you under date of the thirtyfirst ultimo, and asking whether as Chairman of said Board he has the right to gra;nt a parole for two weeks to one of the inmates of the school for good and sufficient reason, I beg to say:
The origin of the Georgia Training School for Boys is found in the .Act of 1905, page 127, establishing the Georgia State Reformatory. Under this original Act the control, management, discipline and conduct of said Reformatory was squarely and substantially in the hands of the Prison Commission.
Consequently, to-wit: by the Act of the Legislature of 1919, page 373, the character, and name of this Institution was changed by amendment to the first mentioned Act hereinabove stated, whereby its name then became "The Oeorgia Training School For Boys'' and the same authority, control, discipline, management and conduct was placed in charge of the Board of Managers as therein designated. The said Georgia Training School for Boys is now being 'so conducted, and Mr. F. J. Paxon, as I am informed, is the Chairman of the Board of Managers.
By Sections 9 and 10 of the Act of 1905, pages 128-29, the Board of Managers, as created by the Act of 1919, has full power ~nd authority to exercise their discretion in the entire management, control, paroling or disciplining of inmates of said Institution.
It is, therefore, my opinion that l\Ir. Paxon, as Chairman representing the Board of ::\fanagers of the Institution has full power and authority to grant a two weeks vacation, or .parole, for one of the inmates, under such proper restrictions as he may consider wise, and that this authority may be exercised
157

by him independently of any personal appeal to the State's
Executive, or other authority. Respectfully submitted, R. A. DE~NY, Attorney-General.

The legality of the State's School Warrants is dependent upon the

~

General Appropriations for any year not being in excess of the

State's anticipated revenue for the same year.

April 6th. 1921. Hon. Hugh l\1. Dorsey,
Governor, State Capitol, Atlanta. Thfy dear Governor:
Your communication of the second instant has had my careful consideration, and I beg to give you herein my opinion in reply to same as follows: I am asked to furnish an opinion as to the legality of what is known as the "School Warrants" for the year 1921.
As a matter of information, it is not improper for me t() state that this question is now presented to me officially for the first time, and I respectfully submit that I have not heretofore either rendered any opinion on the subject or i:ntimated any opinion, realizing that to do so would involve the considc eration of the authorized disbursements of the State, as shown by the legislative appropriations as against the anticipated revenue of the State for the year or period for, and in which, the warrants were executed and floated.
Up to this time the sole expressions of opinion that have come from these offices were, first, on March 7th, last, when I rendered an opinion that these school warrants were not "bonds" nor were they on their face "interest bearing." On Thfarch 25th, I rendered the opinion that these warrants upon being discounted, would thereby legally become interest bearing.
The question now arises: Are these warrants legal ab initio? 1\fy sole attention is hereby given to that inquiry.
158

I do not find that any Attorney-General of the State has ever passed upon this question except the Honorable Clifford \Valker, who, in an exhaustive and well considered opinion on October 30th, 1915, covered the question and answered it fully for that year (1915.)
This opinion is to be found in the Opinions of the AttorneyGeneral of Georgia for 1916, pages 98-109. I respectfully refer to that opinion as being a thoroughly well-digested consideration of the subject and its conclusions and findings I most heartily endorse and affirm in every particular.
That o.pinion, however, has reference solely to the year in which it was. rendered, to-wit, 1915, and, in order to appl~ it to the year 1921 reference must be had to the anticipated revenue of the State of Georgia for the year 1921 as applied to the total appropriations of tne Legislature for the same year as already fixed.
Briefly, reference is made, first, to the Act of the Legislature, approved August 13, 1915, which, in my opinion, was a thoroughly legal act, thoroughly Constitutional, and entirely practical. By the first section of that Act it is specificall.\ stated that it is ".passed for the purpose of anticipating collection of the taxes of the current year." Ergo: each year "s warrants must, of necessity, be predicated upon the anticipatory collections of taxes for that year.
Article 7, Secti_on 3, paragraph 1, of the Constitution .provides:
"That no debts shall be contracted by or on behalf of the State except to supply casual deficiencies of revenue, to repel invasion, suppress insurrection, to 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, $500,000."
Under the organic law of our State our entire revenue must be raised by taxation on the part of our General Assembly, and its power is limited by the Constitution and may not exceed five mills on each dollar of the value of the property taxable in the State. The amount of revenue so raised, however, is augmented by certain fees, liC('llRCS, OCCUpation and inheritance taxes, and other like sources.
159

Our Constitution further provides that no monies may be drawn fvom the Treasury except by appropriation made by law. It, therefore, follows that in view of the inhibition against the incurring of debt as provided in our Constitution, that the Legislature may not make legal appropriations that may be in excess of the anticipated revenue of the State from the sources as hereinabove referred to.
So long as the appropriations of the General Assembly as covered by the general appropriation Act, together with such special appropriation as they may make, do not exceed in the aggregate, the total anticipated revenue of the State for the same period, all of said appropriations are legal.
In other words, the State's current expenses under our Constitution are to he provided by appropriations of the General Assembly, and these appropriations of the General Assembly must be based on revenues on hand together with such anticipated revenues already assessed but not yet collected.
Our Constitutional provisions covering this question were entirely predicated upon the intention to .prevent the State from running into debt, and to keep her expenditures within her revenues. So long as this is done and followed, the warrants, issued for school purposes, are absolutely legal notwithstanding the revenue for paying same is not actually in hand.
Therefore, I giv'e it to you as my opinion, that so long as the appropriations made by the Legislature are not in excess of the anticipatory revenues to he desired by the State under its taxing power for the same period, warrants issued for school purposes under the Act of the r~egislature of August 13, J 915, arc absolutely legal and binding obligations upon the State of Georgia.
R('spectfully submitted, R. A. DENNY, Attorney-General.
160

As to legality of specific School Warrants mentioned.
April 9th, 1921. Bon. Hugh M. Dorsey,
Governor, State Capitol, Atlanta. My dear Governor:
In re : School warrants 1921. Referring to my opinion rendered you on the sixth instant touching the above, in connection with the conversation had by and 'between Mr. Ward1aw, Presid~~t, of th{l .Trust Com- , pany of Georgia, yourself .and, myself on yesterday, wherein Mr. Wardlaw called attention to the desirability of a .positive statement from these offices with reference to the specific legality of the school warants for 1921, I beg to say: Having received from the Comptroller-General a statement of the anticipated revenues of the State for the yeal" 1921, and having received from the State Treasurer a similar statement showing the amount of the appropriations that .were made by the Legislature for the year 1921, and appliying these two official statements to the opinion rendered by me to you under date Of the sixth instant, I give it to you as my opinion that the specific school warrants, for the year 1921, as. now sought to be discounted by you are legal and valid obligations of the State of Georgia, for the payment of which the State has pledged its full faith and credit.
Yours very truly, R. A. DENNY, Attorney-General.
The Soldiers' Home cannot be thrown open to World-War men;
April 22nd, 1921. Ron. Hugh M. Dorsey,
Governor, State Capitol, Atlanta. My dear sir:
Replying to your request, verbally made through your Executive Secretary, Mr. Claude A. West, this day, asking whether the organic laws of Georgia's Home for Soldiers are such as to preclude the admission of World War men for tha
161

purpose of hospitilization, medical care and treatment, I beg to say:
The Soldiers Home of Oeorgia, under the prescribed Statutory name of "The Confederate Soldiers Home of Georgia'' 1900 (See Acts of the General Assembly of 1900 page 86). A was established by virtue of an Act approved December 19th1 {lareful reading of this Act in its entirety (its great length making it unnecessary to transcribe it in this connection) clearly established the Home, and the same was accepted uy the State of Georgia for the benefit of such ex-Confederat; soldiers .as ni.ay need the benefit thereof. The term of this acceptance was for twenty years, "'hich term has been extended for an aditional ten years, under the terms of the original Aet. Under sections 1, 3, 4 and 5, of said Act it is clearly established that said Soldiers Home was for the benefit exclusively of ex-Confederate Soldiers.
Said Act is the organic law of the Georgia State Home for Soldiers, and, under its terms, the admission of the 'Vorld War men would be precluded, no matter whether for the pur.pose of hospitilization, medical care and treatment or for any other purpose.
I know of no other legislative provision for a State Home in Georgia as would care for the World War men, concerning which you make inquiry.
Respectfully submitted, R. A. DENNY,. Attorney-General.
Insurance Commissioner of Georgia has authority to require all Firelnauranc Companies doing business in Georgia, to incorporate In their Policies the provisions of Code Sec. 2476.
April 22nd, 1921. Hon. William A. Wright,
Insurance Commissioner, State Capitol, Atlanta. J\fy dear General : Complying with your verbal request for an opinion >construing the decision of the Supreme Court in the case of the Westchester Fire Insurance Company vs. Bell (See Volume. 106, Southeastern Reporter, page 186, da.
162

cision rendered February 21, 1921) as related to the right of the Insurance Commissioner of the State of Georgia to prescribe such form of policy as may or must be used by the Insurance Companies doing business in Georgia, as provid~d by Section 2470, of Volume 2 of Parks Code of Georgia-! beg to say:
A careful study and consideration of the decision of the Supreme Court in the Westchester Fire Insurance Company case clearly shows that that decision simply construes the enforcement of fire insurance policies issued and ac.eepted by the property owner. By the terms of that decision the reason that the provisions of Seceion 2476 of our Statutory law (See Parks Code, volrune 2) did not apply and control so as inure to the benefit of the insured was because it was not so stated in the 'Contract.
"It having been so written in the bond" it must necessarily be binding and prevail, and this too, notwithstanding it demands and requires a pound of flesh taken nearest to the heart. Thanks, however, to the wisdom of our Legislative counsels, the provisions of Section 2470 puts it within the power of the Insurance Commissioner, without doing violence to the decision of the Supreme Court and in behalf of our public, to provide and protect, the insuring public from the enforcement of the Shylockian provisions of the fire insurance contracts which are necessarily to be accepted by the insuring public. Section 2470 of the Code provides that:
"Each and every fire insurance company doing business in this State, shall adopt and write a standard or uniform policy such as may be prescribed by the Insurance Commis-
sioner, and it shall be unlawful to Issue any other class of policy in this State.''
Therefore, in view of the decision of the Supreme Court in the \Vestchester case, or in any other case, or decision, it is within the power of the Insurance Commissioner to designate such curative clause, or amendment, to the form of insurance policy issued, as may be considered desirable by the Insurance Commissioner, looking to the full protection of the in-
163

aured a-gainst the direct loss or damage by fire as by Section 2476 of the Code contemplated.
You, therefore, have a .right under Section 2470 of our Code to prescribe a rider to be attached to all fire insurance policies issued by Companies authorized to do business in this State, embodying the provisions of Section 2476, of Volume 2, of Parks Code of Georgia, so that same shall thereby become an in~egral part of the contract of insurance.
Respectfully submitted, R. A. DENNY, Attorney-General.
State Treasurer without authority to loan any portion or part of the Motor Vehicle fund to the Governor or any one else.
April 20th, 1921. Hon. Hugh l\L Dorsey,
Governor, State Capitol, Atlanta. . Dear Sir: Complying with your request for an opmwn as to whether or not the 'freasurer of the State of Georgia has authority to loan to. you the sum of $500,000.00 of the l\Iotor Vehicle Fund in his hands, I beg to say : - Section 20 of the Motor Vehicle Act of 1919 (Acts of 1919, page 259), provides that the fund realized from Motor Vehicle Fees shall be turned into the State Treasury, and shall be held by him and distributed by the State Highway Commission among the several Counties of the State annually. Section 3 of Article 4 of the Highway Department Act of 1919 (Acts of 1919, page 247), provides that the funds realized from Motor Vehicle licenses, less the expense of collecting the same, shall be deposited with the Treasurer of this State to the credit of and as a part of the State Aid Road Fund, and said fund shall be 'controlled and disbursed under the provisions of this Act. Section 4 of the same Article provides that the disbursement of the State Aid Road Fund shall be made upon warrants drawn by the >Governor, upon bill of particulars and .
164

vouchers approved and submitted by the State Highway De.partment, or its duly authorized representative.
The Supreme Court recently held that these provisions of the Highway Department Act control and not the provisions of the Motor Vehicle Act above referred to.
Nothing is clearer in our law than that the funds of the State deposited with the State Treasurer shall be held by him for the pur.poses only for which they were appropriated and intended.
By the provisions of Code Section 228, Sub-Division 8, it is provided that all payments from the Treasury .shall be paid from the funds appropriated for such purpose and not from any other, and by the provisions .of Sub-Section 11 of the same Code Section it is provided:
"The treasurer shall not, under any circumstances, use himself, or allow others to use, the funds of the State in his hands; and for every violation of this section he is liable to the State for the sum of five hundred dollars, as a penalty, or a forfeiture of his salary, M' said forfeiture will pay the penalty incurred."
The only provision of our law authorizing the loan or deposit of any funds in the State Treasury for any purposes whatsoever is that found in Section 10 of Code Section 228, which authorizes the Treasurer, with the approval of the Governor, to ''deposit all funds set apart for the purpose of education, or any other purpose, not required for immediate use, in any chartered bank of this State subject to his draft as Treasurer, and with the Governor make such contract with said Bank for the use of said funds as may be beneficial to the State.'' And a similar provision is provided by Code Section 1251 dealing with State Depositories, but under all of these contracts the fund so deposited must be held at all times subject to the check or draft of the State Treasurer. (Code Section 1259).
Upon a review of all of these authorities, it is clear 'that the Motor Vehicle Fund is a fund established by the Legislature of the State of Georgia for a particular and sperific pur-
165

pose, to be held by the State Treasurer and to be disbursed
by him only in the manner .provided for in that Act. It is also quite clear that the State Treasurer of the State
of Georgia has no right or authority to lend any money in his hands belonging to any fund, or to deposit the same, under any contract, except such contracts as may be made with the consent and approval of the Governor and which at all times leave the money subject to his check or draft. Any other loan made by the State Treasurer would, in my opinion, be an illegal use of the State funds. . There is, of course, no question of your authority, as Governor, to borrow the sum of $500,000.00 provided for by the Constitution, but the difficulty as I see it, and as you will gather from this opinion, is the authority of the Treasurer to make the loan. Upon a consideration of the above authori-
ties, i, therefore, conclude that the Treasurer is without au-
thority to make this loan to you from these funds. Respectfully submitted, R. A. DENNY, Attorney-General.
The proper and only collecting officer for levy advertisement and colo lection of transferred tax fi. fas. is the Sheriff.
April 22nd, 1921. Hon. William A. Wright,
Comptroller-General; State Capitol, Atlanta. l\fy dear sir: In compliance with your verbal request for an opinion construing Section 1225, of Volume 1, of Parks Code of Georgia, as regards the rights thereunder of third .parties, transferees, in the enforcement and collection of transferred taxi fi fas, I beg to say : Preliminery to a specific answer to your inquiry I would respectfully call your attention to the fact that the section of the Code under consideration (Section 1225, Volume 1 of Parks Code of Gerirgi.a) has been amended by the Act of August 14, 1915, (See Acts of 1915, page 11) whereby the seventy five thousand population limit in the original. Act has
166

been changed to one hundred and twenty-five thousand population. With this change, Code section 1225 still remains intact.
.A careful reading of this section 1225 indicates clearly that the Statute was enacted so as to further the collection of taxes by the several officers, thereby enabling them to complete their offcial reports and returns to the State and Counties within the time allowed them by law. The Statute prescribes specific authority granted the Tax Collectors for the specific .purpose of collecting their ta:xes giving them the powers of a Sheriff to the extent of levying, advertising and selling property for the purpose of collecting. It is my opinion that this is the sole .purpose and object of the Statut~.
Now, when a third party elects, either for investment or otherwise, to pay the Tax Collector the amount of taxes due by any one or more tax payers whose taxes are in default or about to be in default and takes a transfer of the fi. fas. for same from said Tax Collector to himself, and having so paid the amount of said taxes to the Tax Collector, he becomes the owner and possessor of the fi. fas. against the tax payer which has no other and superior rights to any other judgment fi. fas. except that the protection of the prior lien for the payment of taxes goes on to the transferee, and is a fixed lien against the property of the tax payer.
So far as the Tax Collector is concerned the taxes represented by the transferred fi. fas. have been thereby paid to him, and in making his final report to the State and County, said taxes are reported as paid and so accounted for. Thereby, the Tax Collector's duties and obligations, under section 1225, or any other section have been fully complied with, and he has no other duties, privileges or obligations resting upon him to further handle the final levying and collection of said fi. fas. s-o transferred.
Thereafter the transfer~ of said tax fi. fas., desiring to enforce them by levy and sale thereafter is relegated to the Sheriff of the County, and he is the Officer who must levy, advertise and sell.
Respectfully submitted, R. A. DENNY, Attorney-General.
167

Prisoner developing tuberculosis, the Prison Commission has authority to transfer him from County chain-gang to State Farm, the County of his conviction paying expense.
May 2nd, 1921. Hon Hugh :M. Dorsey,
Governor, State Capitol, Atlanta. My dear sir: Replying to your inquiry, made to these offi. ces verbally through Mr. McCrory, your Clemency Clerk, as to whether, under our law, the Prison Commission had the authority to transfer a misdemeanor prisoner from a County chain gang to the State farm by reason of said prisoner's having developed tuberculosis, putting him in a condition of health that was precarious and dangerous to his fellow prisoners-! beg to say: . I have read with interest the file furnished me with reference to the case in hand from Newton County, and, with no disrespect to the Chairman of the Prison Commission I fail to find any specific ruling of the State's Attorney-General to the effect that the Prison Commission has no right to transfer as.. hereinabove set forth. I do not say that there has been no such opinion rendered, but it has not been rendered by the present Attorney-General's Office, nor have I been able to find it in the published reports of my predecessors. I am of the opinion that the Prison Commission has heretofore, in various cases, transferred misdemeanor convicts from County chain gangs to the State Farm, upon good and sufficient cause being made to appear to them for so doing, conditioned however upon the County authorities paying the expenses incident to such transfer and ultimate release at the termination of the sentence. I am of the 'Opinion that the Prison Commission has authority to make such transfers prpvided the County authorities will agree to incur such expense as hereinabove stated, and I am further of the opinion that they would have the right to decline to make such transfer without such agreement on the part of the County authorities as to the expenses. In the instant case, a petition having been directed to the Executive. for parole, setting forth facts as to the prisoner's
168

<Condition, with the certificates and affidavits attached from :the medical and health authorities confirming same, it occurs -to me, and I give it as my opinion that: A proper disposi-tion of the matter would come under the powers and duties ,of the Governor, as set forth under Section 1078, Volume 6, ' .of Parks Code of Georgia. Applying- the powers of the Gov-ernor as therein set forth, to the instant case, the procedure would. be an Order .from the Governor commuting the sentence and imprisonment of the convicted man from the term fixed by the Judge in the County chain gang to a like term at the State Prison Farm, in such camp as is provided for such conditions of health.
This latter course is clearly within the p::nYcr and authority of the Executive, and, in the absence of an affimative .agreement on the part of the County authorities to be responsible for the expenses attending the matter, I would rec1ommend this course, as, in my opinion, you have full authority to act in accordance with the recommendation.
Respectfully submitted, R. A. DENNY, Attorney-General.
'The Governor without authority to offer rewards for apprehension, ar. rest and conviction of persor:ts charged with misdemeanors.
May 5th, 1921. 1Ion. Clyde Matthews,
Commissioner Department of Game & Fish, State Capitol, Atlanta.
1\Iy dear sir: Replying to your inquiry of the fourth instant with ref-
erence to the right of the Governor to issue rewards for the aprehension and arrest of the persons dynamiting fish in the River Ohoopee, in the County of Tatnall, as per a letter addressed to you under date of April 26th by the City Court ::Solicitor of. Reidsville, I beg to say:
169

First: I am returning herewith, as per your request, the letter of the Solicitor of the City Court of Reidsville hereinabove mentioned.
Second: Section 604, Volume 6 of Parks Code of Georgia, prescribes that the use of fire arms, dynamite or other explosives or destructive substances for the purpose of killing fish shall constitute a misdemeanor, and the person or persons so doing shall be adjudged guilt.y of a misdemeanor.
Section 902, Volume 6 of Parks Code of Georgia, prescribes the powers and duties of the Governor with reference to offering rewards, but does not extend his power to the apprehension and conviction of misdemeanor cases, it being con,fined to felonies. I am, therefore, constrained to give it to yon as my opinion, that the Governor of Georgia has no power or authority to offer rewards for the apprehension, arrest and conviction of misdemeanor vi1olators of the law; \hispower of offering rewards being confined to felony cases, as. prescribed by our Code.
Respectfully submitted, R. A. DENNY, Attorney-General.

The ownership of Meteorite falling on private property or public road:.

l\Iay 5th, 1921.

Doctor S. W. 1\faCallie,

State Geologist, State Capitol, Atlanta.

l\Iy dear sir:

.

Replying to Y'Onr letter of the 28th ultimo, wherein you

ask for an opinion as to the rightful ownership of a meteorite:

i.e. Does it belong to the owner of the property on which

it falls or to the party that finds it? And asking, further,

where the meteorite is found in the public l"oad, who is its

rightful owner-I beg to say:

First: As to that part of the meteorite that fell upon

private property:

The original doctrine of treasure trove was usually defined

as .gold or silver in coin, plate or bul1Ton found C'oncealed in

170

the earth, or in a house, or other private place, but not lying on the ground, the owner of the discovered treasure being unknown. The above seems to have been based upon the treasure being gold or silver coin or bullion. This has been ramified to a certain extent so as to cover articles manufactured from gold and silver, and has also included paper representatives of gold and silver. By the early Common Law the finder :of treasure trove had title against all the world except the true owner. This seems to have been the general rule of nearly all nations, and is the law of England to this date. In this country however, the law relating to treasure trove has generally been merged into the law relating to Joost property found.
It is a well recognized principle of our law that the owner of lands owns absolutely everything thereon, thereunder or thereover appertaining to the land, as well as all accretions or natural accessions.
We are informed that a meteorite travels at an -ernormous rate of speed, approximating forty or fifty miles per second, but decreasing in speed as it comes in contact with the opposing currents of the earth, and the gravitation of the earth. Therefore, we are also told, that impeded in its flight by those earth currents encountered, it decreases in.speed so that when it finally reaches the earth its speed will hardly excPe<l t\yo or three miles per second. .This speed, however, would be of su__:cient force to practically bury a four pound accretion consisting of heavy iron metal a considerable distance in the ground. It is a well established principle of our law that a permanent annexation to the soil of anything in it, makrs it a part :of the realty. Applying this principle to the instant matter it becomes self evident that the meteorite thereby becomes a part of the realty. Applying, in addition, the otherprinciple hereinbefore enunciated as to the ownership of the realty it follows that the meteorite became a part of the realty and became the absolute property of the individual owning the realty.
Answering your inquiry as to the part of the meteorite that fell in the ptiblic road, and was there picked up, or-
171

found by some one rightfully pasing along said road. The public roads in our State are not the property of the State, notwithstanding the State interests itself in their support and maintenance, nor are they the property of the Counties, the Counties occupying relatively a similar relationship to them as the State, only a litle more intimately and closer associated with the people. The public has no title, eo nomine, in the roads, its tenure being an easement only. It is generally understood that the actual ownership is in the adjacent or adjoining property owners, and where the ownership of lands js not the same on both sides of the road, then said ownership extends to the middle of the road. This, however, has reference solely to the fee in the land subject to the rights of property as users, occupiers and prese-nt possessors of said road for the purposes of travel. It follows that anybody traveling the public road and finding something of value lying practically upon the surface thereof, becomes the owner
thereof' by assuming t? take charge of it. Applying this doc-
trine to the instant case, if the :piece of meteorite fell upon the public road and, by reason of its speed, it became so imbeded in the road that it could not be removed therefrom by a finder without digging it up and thereby scarifying, or destroying the surface of the road, it became a ever, in falling it simply occupied the surface of the road, or part of the ownership of the adjoining property. If, howapproximately so it became the property of any person traveling along the road and finding it picked it up, and assumed the ownership and control thereof.
Respectfully submitted, R. A. DENNY, Attorney-Genera1.
172

INDEX

A.

ACKNOWLEDGEMENT of service by Insurance Agent. ....... 146

ADMINISTRATOR, Taxes paid by, when..... : ................. 155

AMENDMENTS-

To Bank Charter not granted under Act of 1917. . . . . . . . . . 27

To Federal Constitution, effect in Georgia ................ 23-31

APPROPRIATIONS-

Fund not used for other purposes ........................ . 41

For calcium arsenate not continuous ..................... . 67

Of 1919 construed ....................................... 72

APPOINTMENT, Trustees of Normal College, confirmation unnecessary .......................................... . 111 :.__/

ATTORNEY, disabilities of disbarment not removable by the

Governor ............................................. . 17

ATTORNEY-GENERAL-

Salary of ................................................. . 48

Governor may require to try criminal case ................ . 154

ATTORNEY, Governor cannot employ in criminal case ....... . 153:

AUGUSTA, Fees of Magistrates in ......... , ................... . 26

AUTOMOBILE LICENSE, School trucks must have ........... . 41

No refund on

92

B. BANKING ACT-
Of 1919 construed .......... : . ............. 25-61-101-101-114-135 Of.1919 supersedes Act of 1917 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28' BANK\VIhen charter not affected by Act of 1919 . . . . . . . . . . . . . . . . . . 61 May give one bond for Branches as State Depository. . . . . . . . 27 Loans to Officers and Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Proof of claim against, and .manner of payment. . . . . . . . . . . . 115 Application for renewal and amendment in one petition . . . . . . 123 Life of charter, of unchanged by Act of 1919 ... , . . . . . . . . . . 135 BANKING DEPARTMENT, Expense of postage, how paid ...... 124 BENZOL, is within Oil Inspection Laws . . . . . . . . . . . . . . . . . . . . . . . 13S: BIRTH and health certificate fees, how. paid .................. 147 BOLL \VEEVIL, State Entomologist no power to quarantine.... 75 BOND ELECTION, in School District . . . . . . . . . . . . . . . . . . . . . . . . . . 38 BRANTLEY COUNTY, Act creating construed , . . . . . . . . . . . . . . . . 78
c.
CAMDEN COUNTY, Depository Act construed ................ 114 CATTLE INSPECTORS, powers of . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 CAMPAl'GN EXPENSES, Effect of failure to file statement... . 92 CHARTER, granted since 1863 subject to Act 1919............ 61
173

<CHILDREN, not to be confined in jail . . . . . . . . . . . . . . . . . . . . . . . . . 67 CIVIL CASES-
Disposed of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Pending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9 COMPENSATION, No additional to Drug Inspector............. 72 COMMISSIONER OF AGRICULTURE, not to use fertilizer tags
of previous years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 COMPTROLLER-GENERAL may extend time of settlement of
Tax Collector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 CONGRESSMAN Governor required to commission . . . . . . . . . . . . 86 COLLECTION by bank not a preferred claim... . . . . . . . . . . . . . . . 101 CONTINGENT FUND of Governor, what chargeable to .......... 105 CORONER jurisdiction of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 COSTS in escape cases of felony convicts . . . . . . . . . . . . . . . . . . . . . . 142 COUNTY to pay expenses of moving prisoners ............. ... 168 CRIMINAL CASES-
Disposed of ........... : ................................. : . 6 Pending . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 9 CRIMINAL WARRANT, how executed ......................... 149 COTTON ACREAGE, restriction of . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

D.
DIRECTOR of branch and parent bank may be same.......... 25 DISTRICT GRAND LODGE, subject to Insurance Commissioner. 56

E.

EFFINGHAM COUNTY, Vacancy in Board, how filled.......... 93

ELECTION-

Governor cannot interfere with

55

Managers how paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

ESCAPED CONVICT, expense of trial paid how . . . . . . . . . . . . . . . . 142

EXPENS~ OF ARREST of probationer, how paid . . . . . . . . . . . . . . 44

F. FEES-
Justice of the Peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Birth and Health certificates ............................. 147 FERTILIZER TAGS, not good at expiration of year ............ 134 FERTILIZERS, bought in and shipped from another State, not
subject to inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 FIRE INSURANCE COMPANY, Form of policy and contents .... 162
FUGITIVES from justice defin!ld ........................... :' ,99

G.
-GENERAL ASSEMBLYMember of eligible as Officer of National Guard. . . . . . . . . . . . 83 Reapportionment Act necessary ............................ '108

174

GEORGIA TRAINING SCHOOL-

Legislature only can provide additional facilities . . . . . . . . . . . 129

Power of Board of Managers .............................. 157

GOVERNOR-

.

May remove disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Cannot remove Justices of the Peace for malpractice. . . . . . . . 15

Cannot remove disbarment disabilities . . . . . . . . . . . . . . . . . . . . . 17

Cannot remove State Veterinarian . . . . . . . . . . . . . . . . . . . . . . . . . 29

Cannot remove Sheriff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Has power to suspend collection of taxes . . . . . . . . . . . . . . . . . . 47

Cannot interfere with Primary elections. . . . . . . . . . . . . . . . . . . . 55

Machinery given to enforce the prohibition law........... . 63

Pardoning power unlimited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

Cannot create Advisory Boards . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

Must commission Congressmen . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

May require statement of condition of State Depository. . . . . . 89

Must submit Constitutional Amendments .................. 102

Cannot reinstate inmate of Soldiers Home ................. 103

May employ dectectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Cannot authorize persons to make arrests ...... . . . . . . . . . . . . 119

Suspension of tax collections by . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

Has no authority over Deputy Sheriff . . . . . . . . . . . . . . . . . . . . . . . 136

Cannot employ Attorney in Criminal Case . . . . . . . . . . . . . . . . . 154

Cannot offer reward for one charged with misdemeanor. . . . . 169

H
.:HOLCOMB, Pardon of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 HIGHWAY, fund cannot be loaned by Treasurer . . . . . . . . . . . . . . . 164

I .

.INJUNCTION, in enforcement of Probition Law . . . . . . . . . . . . . . . . 25 INSANE PERSONS-

Disposition of, after conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Expense of care chargeable to their estate . . . . . . . . . . . . . . . . 45 Soldiers and Sailors, how admitted to Sanitarium. . . . . . . . . . 46 Sentence of death commuted. Prison Commission has juris
diction or . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 'INSURANCE COMMISSIONER-

Jurisdiction over Odd Fellows . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Power over form of fire insurance policy. . . . . . . . . . . . . . . . . . . . 162

INTEREST BEARING, School warrants are, when . . . . . . . . . . . . 151

INTERSTATE COMMERCE-

Soliciting Agent of Railroad is engaged in

71

Fertilizer Inspection law does not apply to

144

J
.JUSTICE OF PEACENot removable by Governor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

175

In New Counties retain office .......................... 113: May be Post Master ......................~ . . . . . . . . . . . . . . 119 Hold until successor is elected and qualified .............. 122 Ordinary appoints when . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 May be Post Office employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 JUVENILE COURT ACT, construed .......................... 6T
L.
LANIER COUNTY, Amendment creating, construed . . . . . . . . . . . 98 LICENSE, for automobile used for school purposes. . . . . . . . . 4ll

M.
MEMBERSHIP, of General Assembly, Enabling Act necessary .. 108 METEORITE, ownership of ..................................... 170 MILITIA, called out by Governor, when . . . . . . . . . . . . . . . . . . . . . . 105 MOTOR VEHICLE LAW, unconstitutional . . . . . . . . . . . . .. . . . . . . . 18;

N.
NATIONAL GUARD, o .. cers in . may be member of General' General Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83'
o.
OATH, .of public officer construed .............................. 148 ODD FELLOWS, jurisdiction of Insurance Commissioner. . . . . . . . 56' OFFICERS of Bank borrowing from Banks . . . . . . . . . . . . . . . . . . . 60 OIL INSPECTION LAWS, Benzol is within . . . . . . . . . . . . . . . . . . . . 138

P.
PAROLE, Board of Managers of Georgia Training School may. . . . 15T PAINT BILL, of 1920 carries no additional fees . . . . . . . . . . . . . . . 72' PARDON, power of, unrestricted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7S POST MASTER, may hold office of Justice of Peace. . . . . . . . . . . 119 PREFERRED CLAIM, funds of State are, under Banking Act . . 100
Draft collected and unremitted is not . . . . . . . . . . . . . . . . . . . . . 100 PRISONER, expense of removal, paid by County .............. 168 PRISON COMMISSION, method of finding road mileage ...... 104 PROBATION VIOLATED, expense of arrest, how paid.......... 44 PROHIBITION LAWS, methods of enforcement .............. 63126 PUBLIC BUILDING ACT APPROPRIATION, what chargeable to 118 PUBLIC OFFICE, women eligible for . . . . . . . . . . . . . . . . . . . . . . . . . . 62.

Q.

QUARANTINE-

Of cattle .................................................... . 74:

Against boll weevil

7S

176

R.
RE\VARD, not offered for misdemeanor ae~used . . . . . . . . . . . . . . 169 REQUISITION FOR FUGITIVE, duty of Governor.............. 99 ROAD MILEAGE, how ascertained .. : ......................... 104

s.
SACCHARINE TABLETS, Sale of .. .. .... . .. .. .. .. .. .. .. . .. .. .. 16 SCHOOL BONDS, election for ....... : ........ , . . . . . . . . . . . . . . 38 SCHOOL 'VARRANTS ........................................ 135
Are not Bonds ............................................. 151 Are interest bearing, when . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Legality of ............................ : . ............... 158161 SECRETARY of Executive Department may admini tcr oath .... 116 SENTENCE, effect of where several . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 SERVICE, of process on non,resident Insurann Co . .. ........ . 146 SHERIFFNot removable by Governor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 May serve criminal warrant, and where .................. 149 Must levy tax fi fa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16G SQLDIERS HOME\Vho admitted ................................. : . .......... 161 Authority of Governor over inmates ................ : . ... ~. 103 SOLICITING AGENT, of Railroad, engaged in interstate comm~rce 71 STATE DEPOSITORIESGovernor may require statement of condition of... . . . . . . . . . 8~1 Banks reorganized are eligible . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1:12 Bond of where several branch banks . . . . . . . . . . . . . . . . . . . . . . 27 STATE BOARD ENTOMOLOGY, cannot cjuarant'ne for boll
weevil .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 STATE, not liable to suit ....................................... 133 STATE SUPERINTENDENT, of Banks must furn'sh Gov.Jrnor
statement of condition of State Depositories. . . . . . . . . . 89 STATE SANITARIUM-
Collection of expenses from Inmates . . . . . . . . . . . . . . . . . . . . . . . 45 Soldiers and Sailors, how admitted to. . . . . . . . . . . . . . . . . . . . . . IG Governor cannot create Advisory Board for . . . . . . . . . . . . . . . . 82 STATE VETERINARIAN, not removable by Govtnwr....... . . . 29 STATE TREASURER, assignment of deposit to. . . . . . . . . . . . . . . . . 121 STATE TREASURER, cannot loan Highway fum! .............. 16 I SUFFRAGE Al\IEND1IENT, effect of in Georg a . . . . . . . . . . . . . :11
SUPERIOR COURT JUDGE, not disqualified when . . . . . . . . . . . . 95

T.

TAX Act 1918, Section 45, construed

71

TAX COLLECTOR-

Deposit in name of, preferred claim in Dank ............ 101-121

Improper to assign deposits in fai!Pd bank ......... , ...... 121



Time of final settlement by . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . HO May take oath of office when . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148 TAXESCannot be required of administrator for one y~ar .......... 155 Suspension of collection of ............................. 47-130 Executions leviable by Sheriff only . . . . . . . . . . . . . . . . . . . . . . . . 166 TRUSTEESNormal College, confirmation of appointment is unnecessary. 111 Of University qualified to hold other offices . . . . . . . . . . . . . . . . 96
"-----
u.
UNIVERSITY OF GEORGIA, not liable to suit ................ 133 ~
v.
VACANCY, in Commission of Effingham County, ho'v filled.... 93 VETERINARIAN, not removable by Governor . . . . . . . . . . . . . . . . . . 29
w.
WARRANT, (criminal) how issued and served ................. 14!! WOMAN SUFFRAGE, amendment effect in Georgia .......... 23-31 WOMEN may hold office .................. . . . . . . . . . . . . . . . . . . . 62
17R