-REPORTS AND OPINIONS
OF THE
ATIORNEY-GENERAL
OF
G. EORGIA
FROM MAY 1st, 1921, TO JUNE 15, 1922
GEO. M. NAPIER,
Attorney-General
SEWARD M. SMITH,
Assistant Attorney-General
T. R. GRESS,
Secretary.
1922 DOWMAN-WILKINS CO.
Atlanta Ga.

ATTORNEY-GENERALS
1868-1872 .................. .' ..... Henry P. Farrar. 1872-1877 ........................ N. J. Hammond. 1877-1880 ........................ Robert N: Ely. 1880-1890 ........................ Clifford Anderson. 1890-1892 ........................ George N. Lester. 1892-1902 ........................ J. M. Terrell. 1902-1902 ........................ Boykin Wright. 1902-1910 . . . . . . . . ; . . . . . . . . . . . . . . . John C. Hart. 1910-1911 ........................ Hewlett A. Hall. 1911-1914 . . . . . . . . . . . . . . . . . . . . . . . . Thos. S. Felder. 1914-1915 ........................ Warren Grice. 1915-1920 ........................ Clifford Walker. 1920-1921. ....................... R. A. Denny. 1921- ........................ George M. Napier.

STATE OF GEORGIA
ATTORNEY~GENERAL'S OFFICE ATLANTA
May 20th, 1922.
Honorable Thomas W. Hardwi'ck,
Governor of Georgia, State Capitol.
Dear Governor :-In conformity with the law, we are herewith submitting report of the work of this department of our State Government, since the incumbency of the undersigned to the date of the publication of this report.
Herewith is submitted statement of all Civil and Cri'minal cases disposed of during this time, also a report as to the status of all litigation now pending in the courts, in which the State of Georgia is party plainti'ff or defendant.
Permit me to advert to the increasing amount of business in this department. We have no doubt, handled a larger number of matters, many of which being of great importance to the State, than have been disposed of by any Attorney-General in the same length of time. The growth of the State, and of business in the State, the resistance to features of taxes imposed, by the last Legi'slattire, have ~ll contributed to this logical i'ncrease in the volume of busibess coming to this office.
This report does not embrace replies to individuals, who apply to us for opinions on subjects of unlimited range. Without attempti'ng to give an official opinion, we do, in these matters, make such suggestions as are pertinent and helpful without invading the province of the practicing lawyers, to whom in most cases the questions should have been submitted.
The Assistant Attorney-General, from the beginning of tny incumbency of this office, has been Hon. Seward M.
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Smith, who has rendered able and painstaki'ng assistance in all the duties of the office. We have also been fortunate in having as Secretary in this Department, Mr. T. R. Gress, a competent, skilled and experienced lawyer~ But for their abilities and great industry, it would have been impossible to attend to the heavy busi'ness handled.
In making this report to your Excellency, permit me to acknowledge and express appreciation for the courtesies and kindness shown us by the Executive Department.
I have the honor to be, with great respect, Sincerely yours, GEO. l\:1. NAPIER, Attorney-General.
CASES DISPOSED OF IN UNITED STATES SUPREME COURT.
Civil:
State of Georgia vs. State of South Carolina.
This was an original suft filed in the United States Supreme Court to establish and fix the boundary line between Georgia and South Carolina. A decision was rendered on the 27th day of January, 1922, fixing the boundary line as follows: 1st. Where there are no islands in the boundary rivers, the location of the line between the two states is on the water midway between the main banks of the ri'ver when the water is at ordinary stage; 2nd. Where there are islands, the line is midway between the island bank and the South Carolina shore when the water is at ordinary stage ;
4

3rd. That all islands in the Chattooga river are reserved to Georgia as completely as those in the Savannah and Tugaloo rivers. The results of this decision, which completely sustained every contention of the State of Georgia, is to give Georgia the title to many very valuable hydro-electric sites, the taxes from which will be very considerable.
The Texas Company vs. J. J. Brown, Commissioner of Agriculture, et. al.
Peti'tion for injunction, etc., to restrain the Agricultural Department from the collection of Inspection Fees. This case was heard and decision rendered in favor of the State's contention, releasing a large sum of money for use by the State.
Criminal:
Robert Hawes vs. the State. Violation of the Prohibition Law arising in Wilkes County. The United States Supreme Court affirmed the contentions of the State of Georgia.
Jim Denson vs. the State. Arising on conviction for Murder in Twiggs County. The United States Supreme Court affirmed the State's contentions.
Cleve Edwards vs. State of Georgia. Violation of the Prohibition Law ari'sing in Hall County. The United States Supreme Court affirmed the contentions of the State.
5

CASES DISPOSED OF IN THE SUPREME COURT OF GEORGIA;
I
Civil:
G. E. Cooper, et. al. vs. R. E. Collins, et. al., State Board of Barber Examiners.
This case involved the constitutionality of the creation of the State Board of Barber Examiners. The Supreme Court of our State rendered a dec!sion holding the Act constitutional.
William A. Wright, Comptroller-General vs. Thos. W. Hardwick, Governor. Mandamus proceedings.
This was a case attacking the validity of the discounting of the W. A. R. R. warrants. The decision held that the State had authority to anticipate this revenue and to discount the rental for five years.
Bank of Clayton County vs. Dan!els, Tax Collector. This was a case involving tax on the Capital Stock
of the Bank. This case was argued. in the early Fall of 1921. The Supreme Court has not rendered a decision, as yet.
J. H. Jones, et. al. vs. Valdosta, Moultrie and Western Railroad.
This was an intervention filed for taxes in the United States Court for the Southern District of Georgi'a. The Comptroller-General has received the taxes.
Criminal:
Garnett Richards vs. the State; Murder; from Taliaferro County. Reversed.
6

Joe Jackson vs. the State;

Murder; from Worth County.

Affirmed.

Louis Murray vs. the State;

Murder; from Harris County.

Pending.

Clarence Thweat vs. the State;

Murder; Muscogee County.

Affirmed.

J. E. Buchanon vs. the State; Murder; from Wheeler County.

Affirmed.

Ludie Riley vs. the State;

Rape; from Dougherty County. Affirmed.

John Warren vs. the State;

Murder; from Bibb County.

Pending

, Frank Jones vs. the State; Murder; from Chatham County.

Pending.

Edmond Hubbard vs. the State; Murder; from Meriwether County. Pending.

Frank Dorsey vs. the State; Rape; from White County.

Pending.

Edwin O'Berry vs. the State;

Murder; from Appling County. Clint Mathis vs. the State; .

Pending.

Murder; from Catoosa County. Affirmed.

Harry Ellis vs. the State;

Murder; from Bulloch County. Clyde Manning vs. the State;
Murder; from Newton Superfor

Pending.

Court. James Douglas vs. the State;

Reversed.

Murder; from Walker County. M. C. Mitchell vs. the State;
Murder; from Bibb County. J. A. Fontana vs. the State;

Reversed. Reversed.

Murder; from Richmond County. Pending. John Johnson vs. the State;

Murder; from Cherokee County. Affirmed.

7

Joe Jordan vs. the State; , Rape; from Ware County.
George Swan vs. the State; Murder; from Tattnall County.
Frank Jackson vs. the State; Murder; from Fulton County.
Dennis Green vs. the State; Murder; from Fulton County.
Voge Lamar vs. the State; Murder; from Fulton County.
D. Stanford vs. the State; Murder; from Bacon County.
Will, alias Flig Goosby vs. the State; Murder; from Clarke Ctmnty.
P. T. Connell vs. the State; Rape; from Wilkinson County.
Will Ravenel vs. the State; Rape; from Hart County.
Henry Langston, Jr. vs. the State; Murder; from Morgan County.
Romeo Henry vs. the State; Murder; from Tift County.
John Thompson vs. the State; Murder; from Clarke County.
J. R. Dedge vs. the State; Murder; from Treutlen County.
G. M. Hudson vs. the State; Murder; Dougherty County.
Esau Echols vs. the State; Rape; from Floyd County.
John Jenkins vs. the State; Murder; from Pike County.
Bud Bailey vs. the State; Rape; from Thomas County.
8

Pending. Pending. Pending. Pending. Pending. Reversed. Pending. Pending. Pending. Pending. Pending. Pending. Reversed. Pending. Pending. Pending. Pending.

Yerner Vincent vs. the State; Murder; from Murray County.

,
Reversed.

Major Carter vs. the State; Murder; from Pierce County.

Pending.

Levi Bryany vs. the State; Murder; from Houston County.

Pending.

B. W. Davis vs. the State; Murder; from Chatham County.

Pending.

Causey Chapman vs. the State; Murder; from Dooly County.

Reversed.

Lee Adams vs. the State; Murder; from Dooly County.

Reversed.

Lawyer West vs. the State; Murder; from Dooly County.

Reversed.

Chess Lewis vs. the State; Murder; from Dooly County.

Reversed.

Buddy Wall vs.. the State; Murder; from Dooly County.

Reversed.

Marshall Bass vs. the State; Murder; f.,rom Laurens County.

Pending.

King Green, alias Archie Peterson vs. the State;

Murder; from Decatur County.

Pending.

J. S. Peek vs. the State; Murder; from Cobb County.

Pending.

Will Bradford vs. the State; Murder; from Wilkes County.

Pending.

J. M. S. Green vs. the State; Murder; from Tift County.

Pending.

R. L. Jordan vs. the State; Murder; from Dooly County.

Pending.

Mary Townsend vs. the State; Murder; from Hall County.

Pending.

Macie Giddens vs. the State; Murder; from Worth County.

Pending.

9

Grover Ison vs. the State; Murder; from Spalding County..
Frank R. DuPree vs. the State; Murder; from Fulton County.

Pending. Pending.

CASES DISPOSED OF IN SUPERIOR COURTS.
The State vs. Claude A. West. Mr. West pleaded guilty to the charge of embezzling the State's funds and was sentenced from 6 to 11 years.
The State vs. R. N. Berrien. Mr. Berrien was found guilty on a charge of embezzlement and he has filed a motion for a new trial. By direction of the Governor, the AttorneyGeneral a,ssisted in the prosecution of these cases.

PENDING LITIGATION.

Civil cases in the United States Supreme Court: State of Georgia vs. Tennessee Copper Company and the Ducktown Copper and Iron Co., Ltd. A consent decree provides for. a system of arbi'tration to determine damages.
Criminal cases in the United States Supreme Court:
Bill Moore vs. the State; Rape, from Glynn County, Georgia. Briefs have been filed. Motion for advancement of hearing has been made.
Ponder vs. the State of Georgia. Violation of the Prohibition Law ansmg in Glynn County. Briefs have been filed.
10

I

Civil cases in the State Courts of Georgia:
State of Georgia vs. the Estate of J. B. White. This is a suit to collect taxes. This case has been transferred to the Federal Court and is being litigated there.

Bank of Clayton County vs. Daniels, Tax Collector.

This is a case involving tax on the capital stock of the bank invested in Liberty bonds. Thi's case was argued early in the Fall before the Supreme Court of Georgia and we are awaiting the decision of the court with great interest.

Crawford Wheately Estate vs. T. R. Bennett, Supt. of Banks.

This is a case involving the constitutionality of the Assessment Section of the Banking Act of
Georgia.

Dennison Mfg. Company vs. Willi'am A. Wright, Comptroller-General.

This is a suit to recover taxes paid under

protest.



New York Life Insurance Company vs. William A. Wright, Comptroller-General.
This is a suit to recover taxes.
William D. Harwell et. al. vs. William A. Wright, Comptroller-General.
Sam Lee et. al. vs. WilHam A. Wright, ComptrollerGeneral.
This is a suit involving the constitutionality of the General Tax Act passed by the General Assembly of Georgia, 1921. A Tax on Laundries.

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J. H. Ewing, et. al. vs. William A. Wright, Comptroller-General.
This is a case involving the consti'tutionality of the General Tax Act. A tax on Loan Agents and Attorneys.
J. M. Jones, et. al. vs. William A. Wright, Comptroller-General.
This is a case involving the constitutionality of the General Tax Act imposing a tax on Wood and Coal Dealers.
J. N. Hirsch vs. William A. Wri'ght, ComptrollerGeneral.
This is a case involving the constitutionality of the General Tax Act of 1921, imposing a tax on Cigar Dealers.
E. B. Izlar and W. J. Bremer, et. al. vs. William A. Wright, Comptroller-General.
This is a case involvi'ng the constitutionality of the General Tax Act of 1921, imposing a tax on Coke, Wood and Coal Dealet:s.
Atlanta Auto Hotel, et. al. vs. William A. Wright, Comptroller-General.
This case involves the constitutionality of the General Tax Act of 1921, imposing a tax on Garages.
Dorsey, Governor, vs. P. B. Latimer, et. al. Suit on Bond. Cherokee Superior Court.
W. D. Manly, et. al. vs. W. S. McLendon, Secretary of State.
Petiti'on for Mandamus to compel the Secretary of State to issue charter to corporation styled, "Bank of the State of Georgia."
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.
OPINIONS.
BANKS ARE NOT LIABLE FOR TAX ON SELLING TRAVELERS' CHECKS AND FOREIGN EXCHANGE UNLESS THEY ENGAGE IN THIS BUSINESS WITH SUCH FREQUENCY AS TO CONSTITUTE A BUSINESS.
July 15, 1921. Hon. T. R. Bennett,
Superintendent of Banks, Atlanta, Georgia.
Dear Sir: Complying with your request for an opinion upon the question presented by the Bank of Adel, Adel, Georgia, in their letter of June 18, 1921, relating to a tax levy on banks selling Travelers Cheques and Foreign Exchange for a profit. Thi's tax being $50.00 per year, I beg to say:
That it is my opinion that banks are not liable for this tax unless they engage in the selling of these checks and foreign exchange with such frequency and in such a way as to constitute a business. I cite as my authority Section 1001 (1) of Article 6 of Regulations No. 59 of the Treasury Department of the Uni'ted States of America.
Respectfully submitted, SEWARD M. SMITH,
Assistant Attorney-General.
POWER OF GENERAL ASSEMBLY TO AUTHORIZE DISCOUNT OF W. & A. RAILROAD RENTAL.
July 16, 1921. Hon. Thomas W. Harwick,
Governor of Georgia, State Capitol. Dear Governor Hardwick :
I have the. honor to reply to your letter, in which you inquire: "Whether or not the General Assembly would
13

have power, under the Constituti'on, to authorize the Governor, in order to meet appropriations made by law which cannot be otherwise met, .to anticipate the rental of the Western and Atlantic Railroad Company by drawing warrants against the same and discounting these warrants for the purpose of placing in the Treasury funds with which to pay appropriati'ons duly made. Would such warrants create a debt against the State in violation of the Constitution?"
1st. The General Assembly of Georgia has, in my opinion, the power to authorize the Governor to use the rental of the Western & Atlantic Railroad by discounting in advance, payments on this rental, drawing warrants agai'nst same, and discounting these warrants, placing in the Treasury of the State the proceeds thereof. And this money to be used for any purpose for which said rental payments would be available if paid into the Treasury in the customary manner.
The use of the income of this railroad property would, in no sense, be using the! property ; and the use of the income for legally authorized purposes would not be creating a debt against the State of Georgia, in vi'olation of the Constitution of this State, nor of the United States. Nor, in so doing, would the State emit any bills of credit as contemplated and forbidden by the Constitution of the United States. Bills of credit are ,such as are issued by a State on the general credit thereof, without the appropri'ation of any special fund for the payment of such bills.
Your letter does not raise any. inquiry as to the length of time for which it is proposed to anticipate the rental income of the Western & Atlantic Railroad, and it is not deemed necessary to advance any views upon that question.
Wi'th great respect, Sincerely yours,
GEO. M. NAPIER, Attorne:v-General.
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COUNTIES NOT EXEMPT FROM PAYING VITAL STATISTICS FEES ARISING IN INSTITUTION LOCATED IN COUNTY.
July 18, 1921.
Doctor W. A. Davis, Director, State Capitol.
Dear Doctor: With reference to the attached file of correspondence between your Department, and the District Registrars for Vital Statistics in Baldwin County, I beg to say that:
The law simply requires the Local Registrars to keep a record of the birth and death certificates. This will include the deaths occurring in any Sanitarium or Institution of any kind. Of course, the people of Baldwin County may contend that the State should pay the expense incidental to the death of persons sent by the State from other counties to the Georgia State Sanitarium at Milledgeville.. On the other hand Baldwfn County, and the City of Milledgeville receive great benefit from the money expended for the maintenance of the Sanitarium at Milledgeville.
There is nothing in the law exempting Baldwin County from the expense of registration of death certificates of persons dying at the State Sanitarium.
Of course, the means of enforcing payment by the County Treasurer of Baldwi'n County might bring up considerable contention.
You might like to have, through the Representative in the General Assembly from Baldwin County, an Act passed which would and could shut out any contention that Baldwin County should be relieved of the expense of taking the vital statistics, including deaths occurring in the State Sanitari'um.
This matter you might bring to the attention of the Baldwin County representatives, if you see fit to do so.
I return you herewith the file of correspondence referred
15

to. If there is anything else we can do in the premises, please advise us.
Very sincerely yours, GEO. M. NAPIER, Attorney-General.
CORPORATION HAVING SAME OFFICERS AND PERSONS IN EACH 1\IAY CONTRACT WITH EACH OTHER, IF CONTRACT FAIR.
Hon. W. A. Wright, Comptroller-General, State Capitol.
Dear General Wright: Referring to your verbal request of thi's morning with reference to the right of corporations having officers in common to contract with each other, I beg to advise that this matter is regulated by the provisions of Section 2221 of Parks' Code of Georgia, which are as follows:
"A contract otherwise fair is not rendered void by the fact that the contracting parties consist of corporations having the same persons or officers in each."
The foregoing section seems to me to cover the inquiry you preferred. You did not tell me what kind of corporation was i'nvolved in the matter about which you made inquiry; therefore, I suggest you may find some assistance by reading the following Sections of the Code in connection with the matter: 2228; 2410; 2423; 2425; and 2564.
If there is any other feature about which you desire information, I shall be glad to try to get it up for you.
Yours very respectfully, GEO. M. NAPIER, Attorney-General.
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BONDS OF ST. PAUL FEDERAL LAND BANK ARE NOT U. S. BONDS.
July 20, 1921. Hon. W. J. Speer,
Treasurer, State Capitol. Dear Sir: Replying to the verbal i'nquiry of Assistant Treasurer J. 0. Anderson, as to whether certain bonds in the
sum of Ten Th.ousand Dollar's of the Saint Paul Federal Land
Bank are United States' Bonds in contemplation of the law in this State requiri'ng a deposit of bonds in said amount by the Fidelity Insurance Company as a condition precedent to such Company's beginni'ng business in the State of Georgia, I beg to say :
Although bottomed on the collateral security of United States' bonds, they are merely bonds of the Saint Paul Federal Land Bank.
My interpretation of said law is that actual bonds wherein the United States Government is the obligor are required to meet the demands of our statute.
While perhaps the bonds of. the Federal Land Bank are just as good security as United States Bonds, the fact remains that the law would not be strictly compli'ed with by your acceptance of these Federal Land Bank Bonds in lieu of bonds of the United States Government.
Trusting that I have answered the inquiry fully, I beg to remain,
Very sincerely. yours, GEO. M. NAPIER, Attorney-General.
' 17

LIENS SHALL RANK ACCORDING TO DATE.
July 21, 1921. Hon. T. R. Bennett, Supt. Banks,
Atlanta, Georgia. Dear Sir: Replying to your verbal request of this date . in regard to priority of liens against banks as set out i'n Section 34, Article 12 of the Banking Law of Georgia, I beg to submit the following: Section 34, Article 12 of the Banking Law of Georgia, holds that these liens shall rank with other liens, according to date, etc. Ci'tizens National Bank of Danville vs. Haynes, Receiver. 114 Ga., Page 490 holds that such money was not impressed with a trust in favor of the sending bank, so as to give it a priority over the general creditors and depositors of the collecting bank. Ober and Sons vs. Cochran, 118 Ga., Page 396, holds the same. United States National Bank of Omaha vs. Glanton, Receiver, also, holds the same. In view of the above-mentioned authorities it i's my opinion that these liens shall rank with other liens, according to date. Trusting that I have furnished you with the information desired, I remain,
Yours very truly, SEWARD M. SMITH,
Assistant Attorney-General.
18.

INTEREST SHOULD NOT RUN IN FAVOR OF CREDITORS, AFTER BANK HAS BEEN PLACED IN HANDS OF BANKING DEPARTl\IENT.
July 23, 1921. lion. T. R .Bennett,
Superi'ntendent of Banks, State Capitol.
Dear Sir: Replying to your inquiry based on .attached letter of Messrs. Anderson & Wood, Attorneys, of Madison, Ga., with reference to the right of the holder of cheque issued by the Cashier of the Morgan County Bank to interest on the sum called for by said cashier's cheque during the time of the suspension of the bank, we beg to say:
Interest should not be paid on this claim from January 14, 1921 to April 12, 1921. The Morgan County Bank was, during that period, in a state of suspended animation. Your Department took it when it was financially sick, and you resuscitated it. During the time it was closed, it was in charge of your Department for the benefit of all its creditors.
''Interest should not run in favor of one creditor at the expense of another while the law, acting for all, is administering the assets."
People vs. Am. Loan & Trust Company, 172 N. Y. 3714 Cited, with many cases in L. R. A .. , (New Series.)
As agai'nst an insolvent bank, a debt might continue to bear interest, but as against the assets in the hands of a Receiver, interest should be calculated. only to the date of suspension; and, as in this case, the assumption of the control of the funds by legally constituted authorities acting in the interest of all creditors.
Sincerely yours, GEO. M. NAPIER, Attorney-General.
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STOCKHOLDERS IN BANK LIABLE TO DEPOSITORS IN AN AMOUNT EQUAL TO THE FACE VALUE OF THEIR STOCK.
July 26, 1921. Hon. T. R. Bennett, Supt. of Banks,
State Capitol, Atlanta, Georgia. Dear Si'r: Your letter of the 25th inst., received and contents noted. CRAWFORD et. al., RECEIVERS vs. SWICORD. 147 Ga. Page 553, holds that each stockholder is liable to depositors, in an amount equal to the face value of his stock. In view of the above ruling, it is my opinion that you would make your assessment against the stockholders in an amount equal to the face value of their stock. That is you would base your assessment on the amount paid in, and not on the authorized capital. Trusti'ng that t~e above gives you the information desired, I beg to remain,
Yours very truly, SEWARD M. SMITH,
Assistant Attorney-General.
INQUIRY AS TO SANITY MUST BE HELD IN COUNTY OF SUBJECT'S RESIDENCE. .
July 29, 1921. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
1Jear Governor Hardwick: Your request for an opinion in answer to one of the Trustees of the Georgia State Sanf. tarium, as to whether the requirements of the Board of Trustees of said Sanitarium, that all persons (inmates of the Georgia Satte Sanitarium) must be committed from
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the counties of their residence, is a sound legal position, I beg to say:
The laws of this State seem to contemplate that the County where an alleged lunatic is domiciled and well known, and his property situated is the only proper place for holding an inquisiti'on as to his sanity. Courts of last resort almost invariably sustain this view. Under our law, of course, there are exceptions, such as the trial of criminals who file pleas of insanity, and that an insane convict must be tried in the county where he was sentenced, and the tri'als of non-residents becoming insane in the State of Georgia.
Section 1574 of the Code of Georgia provides: That patients are to be admitted and discharged from the Sanitarium under such rules and regulations as the Trustees shall prescribe.
In my opinion the Trustees of the Georgia Sanitarium are within the law of this State i"n holding that persons admitted to the Sanitarium must be committed under inquisitions of lunacy held in the counties of the residence of such alleged lunatics.
With great respect, Sincerely yours, GEO. M. NAPIER, Attorney-General.
SUGGESTED ADDITIONS TO BE MADE IN CONTRACT WITH TENNSEEE COPPER CO., ET. AL.
July 30, 1921. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capilol.
Dear Governor Hardwick: Pursuant to your instructions we have very carefully examined the various ,Resolutions
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. adopted by the General Assembly from time to time pertaining to the Tennessee Copper Company and the Ducktown Sulphur Copper & Iron Company, Limited.
We have also critically examined the contract entered into by and between the State of Georgia and those Companies on the twentieth day of August, 1918, the same bei'ng based upon a Joint Resolution of the General Assembly approved August 20, 1918, conferring authority upon the Governor to enter into said agreement.
The draft of the contract sent to me for examination omits an expression contained in the contract of August 20, 1918, which, after referring to the sulphur dioxide gases use the language and "other injurious fumes." I merely call attenti'on to this, although I presume the term "sulphur dioxide gases" may be extensive enough and sufficiently inclusive of what has been deemed essential.
No mention is made in the new agreement as to the payment of costs which have accrued in the United States Supreme Court. I called attention to this in a conversation which I had wi'th Honorable John D. Little over telephone. He informed me that he, and his Associates, would agree to 1pay all the costs, and would settle every item of that kind when a final arrangement is made to have the litigation discontinued in the Supreme Court of the United States.
Your attention is respectfully called to the fact that Paragraph 17 of the new contract refers to the right given under the Resolution, approved August 20, 1918, adopted by the General Assembly of the State of Georgi'a, but nothing is said in this proposed contract as to the terms and provisions of the contract aforesaid approved August 20, 1918.
Simply as a matter of additional precaution, I suggest that the following paragraph be added to said paragraph 17, at page 9, of the contract, which you sent me for examination:
"And likewise, the contract entered into and executed by and between the contracti'ng parties hereto, on August 20, 1918, based upon the Resolution aforesaid, the State of
22

Georgia then acting through the Governor, the Honorable Hugh M. Dorsey, together with all the rights and privileges then confirmed to the State of Georgia, are made a part of this contract, and the present contract herewith entered into shall be construed and interpreted in the light of the terms and provisions of said contract of August 20, 1918, not inconsi'stent herewith."
If I can render any further service in this connection, please command me immediately.
With great respect, I am, Sincerely yours, GEO. M. NAPIER, Attorney-General.
IN THE DISCRETION OF COMMISSIONER COMMERCE AND LABOR WHETHER SEAT SUITABLE ONE.
July 30, 1921. Ron. H. M. Stanley,
Commissioner of Commerce and Labor, Atlanta, Georgia.
Dear Sir: Your letter of the 29th received and contents noted:
You ask our interpretation of that section of the Georgia law, which requ!res employers to furnish suitable seats to their female employees, and permit the use of such seat when not engaged 'in the duties. for which they were employed, I beg to submit the following:
The Acts of 1889, page 167 reads as follows: "An Act to require persons or corporations employing females in manufacturing, mechanical or mercantile establishments to provide suitable seats, and permit the!r use by such females, when not necessarily engaged in the active duties for which they were employed: To provide penalties for violations of this Act, and for other purposes.
23

SECTION 1. Be it further enacted, That all persons and corporations employing females in manufacturing, mechanical or mercantne establishments must provide suitable seats, and permit their use, by such females when not necessarily engaged in the active duties for which they were employed.
SEC. II. Be it further enacted, That any person who shall fail to comply with the requirements of the first section of this Act, and the officers of any corporation, which shall fail to somply with the requirements of the first section of this Act, shall be guilty of a misdemeanor; and, on conviction thereof, shall be punished by a fine of not less than $10.00, nor more than $25.00 for each offense.
You will note in the Act quoted above that the words suitable seats are used. Our courts have never attempted to define what constitutes a suitable seat. The circumstances of eac'h case would be different.
It is my opinion that the Commissioner of Commerce and Labor would have the sole right to say whether or not a seat was a suitable one. It is left within the discretion of the Commissioner of Commerce and Labor.
Trusting that the above will give you the information desired, I beg to remain,
Yours very truly, SEWARD M. SMITH,
Assi'stant Attorney-General.
.
DUTY OF GOVERNOR TO SATISFY HIMSELF IF QUESTION RAISED, WHETHER BILL CARRYING APPROPRIATIONS, WAS ACCOMPANIED BY RECORD OF YEAS AND NAYS.
August 5, 1921. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick: As to the question raised in
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the letter to yourself from Honorable W. E. Watkins, ReP.-
resentative from Butts County, in the present General
Assembly, as to whether it is the duty of the Governor of
the State to investigate the facts as to whether a Bill carrying an appropriation voted upon in the two Houses of the
General Assembly was accompani'ed in its passage by a
record of the yeas and nays, we beg to say: 1st: This is the character of Bill which the Constitution
provides shall not become a law, unless upon its passage in both House and Senate, the yeas and nays are recorded.
2nd: One of the members of the House informs the
Governor that he called for the years and nays, but that the call was not sustained. Is it the duty oi. the Governor
to investigate this matter before approving the Bill?
The Governor is one of the component parts of the legislati've function of our State Government. It is right to investigate any phase of the passage of any law at any stage prior to his final approval of the measure.
The Courts hold that:-
"A duly enrolled act, properly authenticated by the regular presiding officers of both Houses of the General Assembly, approved by the Governor, and deposited with the Secretary of State as an existing law, will be conclusively presumed to have been enacted in accordance with constitutional requirements."
Dorsey, Governor, vs. 'Vright, Comptroller-General. 150 Ga. 321.
In the case of De Loach vs. Newton, 134th Ga. 739 the Court decides that Legislative Journals will not be looked to, for the purpose of invalidating an Act of the Legisla-
ture apparently regular on its face, but the Court says:-
"We need not determine what would be the ruling under a stringent provision similar to that contained in the North Carolina Law.
"We need not determine what would be the ruling under a stringent provision similar to that contained in the North Carolina Constitution, as, for example, the Constitutional statement, contained in our Civil Code, Section 5775 (Parks' Code, Section 6441) that no Bill or Resolution appropriating money shall become a law, unless upon its passage the yeas and nays are recorded."
Idem p. 755.
25

In Sherman vs. Story, 30 Cal. 253, 275, the whole subject was carefully considered. The Court, speaking through Mr. Justice Sawyer, said:-
"Better, far better, that a provision should occassionally find its way into the statute through mistake, or even fraud, than that every Act, state and national, should at any and all times be liable to be put in issue and impeached by the journals, loose papers of the legislature, and parol evidence.
"Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable. . . . The result of the authorities in England, and in the other States clearly is, that, at common law, whenever a general statute is misrecited, or its existence denied, the question is to be tried and determined by the court as a question of law-that is to say, the court is bound to take notice of it, and inform itself the best way it can; that there is no plea by which its existence can be put in issue and tried as a question of fact; that if the enrollment of the statute is in existence, the enrollment itself is the record which is conclusive as to what the statute is, and cannot be impeached, destroyed or weakened by the Journals of Parliament, or any other less authentic or less satisfactory. memorials."
Cited and approved in:-
F1ield vs. Clark, 143 U. S. 675.
Si'nce the approval of the Governor of a Bill which, on its face, will pass the scrutiny of our Courts, which look only into the law, and not into the facts attending its passage, is the last of the three steps of the enactment, the position of the Governor, as a co-ordinate part of our State's legislative powers in safeguarding the Constitutional rights of the people, and in requiring the passage of laws in the manner prescribed by the Constitution of Georgia is obvious.
"When the right to enact a law depends upon the existence of facts, it is the duty of the legislature, before passing the Bill, and of the Governor, before approving it, to become satisfied in some appropriate way that the facts exist."
Lee vs. Tucker, 130th Ga. 48.
Quoted from Stevenson vs. Colgan, 91 Cal. 649.
From this decision of our Supreme Court it appears that, if the Governor has any doubt as to the f~wt that an Act
26

has been passed in a Constitutional manner, it is his duty . to satisfy hi'mself in that regard.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
LENGTH OF TERM OF STATE LIBRARIAN.
August 8, 1921. Hon. Thomas W. Hardwick,
Governor Qf Georgia, State Capitol.
Dear Governor Hardwick: Replying to your recent letter in which you ask the opinion of this Department, as to the term of office of the State Librarian, I beg to say:
This office was created in 1847, by an Act of the General Assembly, approved December 17, 1847, providi'ng, simply,
"That His Excellency, the Governor, be and he is hereby authorized to appoint some fit and proper person to act as State Librarian, who shall be paid the sum of One Hundred Dollars per annum for his services."
No term of office was prescribed. Section 157 of the Political Code provides, however, that the Goyernor "has the power of appointing the following officers, who shall hold their office during the time for which he is Governor, subject to be removed at his pleasure (after naming other offi'cers) ;-
A State Librarian. By the Act of 1881, found codified in Section 172 of the Political Code, it was provided that:-
"The Governor shall present for confirmation by the Senate, some fit and competent person "to serve as State Librarian, whose term of office shall be four years, and until his successor shall have been chosen and confirmed in like manner."
On November 28, 1888, Governor John B. Gordon having previously, to-wit: on April 6, 1888, suspended the incum-
27

bent in the office of State Librarian, sent to the senate the nominati'on of John Milledge, Esq., to be Librarian for the unexpired term of four years from September 27, 1885, and also John Milledge to be State Librarian for the term of four years from September 27, 1889."
Captain Milledge was reappointed in 1893.
Hon. James E. Brown served for four years from Novemver 6, 1897, by appointment of Governor William Y. Atkinson. On October 23, 1901, Governor Allen D. Chandler appointed Judge C. J. Welborn to be State Librarian for a term of four years from October 24, 1901. He was reappointed on October 24, 1905, for a term of four years.
In March, 1908, Judge Welborn resigned the office, to be effecti've from and after March 31, 1908.
On that date Governor Hoke Smith appointed Mrs. Maude Barker Cobb as State Librarian, to fill said vacancy caused until the next meeting of the General Assembly, and "until her successor is appointed and qualified according to law."
On June 25, 1908, Governor Smith sent to the Senate, along with numerous other names, the appointment of Mrs. Maude Barker Cobb to be State Librarian for a term of four years from June 25, 1908. Her appoihtment was duly confirmed by the Senate on June 27, 1912. Mrs. Cobb was reappointed to said office by Governors Brown, Harris and Dorsey respectively, and such appointments were duly confirmed by the Senate.
It seems no date was fixed by Statute for the beginning of the term of office of State Librarian. Executive construction, legislative construction and practice have had some bearing upon it. The change i'n the date of the meeting of the General Assembly also assisted in shifting these dates.
If it could be assumed that September 27, November 6, November 28 or October 24 was the day on which the term of office ended, then the appointment of Mrs. Cobb on March 31, 1908, would have been for the remainder of the unexpired term of Judge Welborn, ending in the fall of
28

.
1909, and subsequently appointments would have ended in 1913, 1917 and 1921, on the corresponding date.
In my opinion, the language i'n the .Statute "and until his successor shall have been chosen and confirmed in like. manner" does not fix the ending of the term of office as of the date the Senate confirms next after a vacancy in the office occurs.
The matter of executive construction and legislative precedent presents a more perplexing situation:
"On the princi'ple of contemporaneous exposition, common usage and practice, under the Statute, or a course of conduct indicating a particular understanding of it, will frequently be of great value in determining its meaning, especially when such usage has been acquiesced in by all parties concerned, and has extended over a long period of ti'me."
36 Cyc. p. 1139. The construction placed upon a Statute by the officer whose duty it is to execute it is entitled to great consideration, especially, if such construction has been made by the highest officers in the executive department of the Government, or has been observed or acted upon for many years, and such construction should not be disregarded or overturned unless i't is clearly erroneous. Idem 1140-41. Prior to the Act of 1881 appointments were for terms of two (2) years ending at widely varying dates. After the passage of the Act of 1881, the months of September, October, November and June were allowed for the ending of the terms of this office. During four periods of four years each the three Governors and the various Senates here recognized the term of this officer as four years ending about June 26th. If such construction is not deemed of controlling weight, then the general facts would i'ndicate that the term of the present incumbent originally dating from October 24, 1909, could be held to end on October 24, 1921.
29

In my opinion, it is an open question in law, without any decision in the Courts of this State to control, and with no exact precedent from the courts of any either State. Consideri'ng previous executive construction and the sanction of the legislative branch, it could establish the ending of the term of the State Librarian in accordance with the last appointment on June 26, 1924.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
GOVERNOR AUTHORIZED TO APPROVE RESOLUTION TO RECONVEY LAND IN EXCESS OF AMOUNT CALLED FOR IN DEED TO STATE.
August 10, 1921. Hon. T homas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick: Replying to your favor of the ninth instant wherein you request us to examine the conveyance given by the Trustees of the Tuttle-Newton Home to the State of Georgia, and to advise you whether the Resolution authorizing you, as Governor 'of Georgia, to transfer to the said Tuttle-Newton Home one hundred acres of land described in the Resolution aforesaid, I beg to say that:
A careful examination of the papers and documents relating to this transaction as well as of the Warranty Deed executed by the offi'cers of the Tuttle-Newton Home to the State of Georgia to a certain large tract of land in Richmond County shows that the said warranty deed contemplated the conveyance of a tract comprising three hundred and twenty-five acres. However, a careful survey of the various tracts of land making up the acreage sought to be
30

,

conveyed, shows that the total acreage was four hundred

and twenty-f\ve (425) acres of land.

Therefore, this Resolution authorizes the Governor to

effectuate the reconveyance of the extra one hundred (100)

acres of land found to be included in the boundaries of the

various tracts making up the whole area.

I see no reason why Your Excellency should not approve

the Resolution referred to.

Permit me to call your attenti'on to the fact that it is

indicated that the officers of the Tuttle-Newton Home do

not specify the particular portion of the entire tract to be,

reconveyed to said Tuttle-Newton Home. When the con-

veyance is drawn to re-invest the title to one hundred acres

of said entire tract in the Tuttle-Newton Home the proper

persons may advantageously select for the State of Georgia

the one hundred acres to be reconveyed-leaving the title

to three hundred and twenty-five acres in the State of Geor-

gi'a, which body of land will be best suited of the whole tract

for the purposes prompting the warranty deed to the State

of Georgia aforementioned.

Herewith, we are returning the House Resolution No. 62,

referred to in your letter, and also other documents sent us

by Doctor Abercrombie, including the blue print of the sur-

vey, which seem to be proper papers for the Executive files.

Trusting this may cover the subject in hand, I am with

great respect.

Sincerely yours,

GEO. M. NAPIER,

Attorney-General.

RE-PRINTING EARLY VOLUME GEORGIA REPORTS MAY BE

PAID FOR OUT OF FUNDS ARISING FROM SALE OF

CODES, ETC.

.

Ron. Thomas W. Hardwick,

Governor of Georgi'a,

State Capitol.

Dear Governor Hardwick: Replying to yours of this date

31

as to bill presented by the Byrd Printing Company for $1,289.00 for reprinting early volumes of Georgia Reports, in which you say:-
"I am advised by the State Treasurer that he has suffiicient funds on hand, received from the sale of Acts, Codes and Reports during the year 1920, with which to pay this account, but there seems to be some question as to whether work done during this year can be paid with funds received during the year 1920. I will, therefore, thank you to advise me whether or not under the law this can be done?"
The Act of 1919, page 19, contains this provision:-
"For reprinting earlier volumes of the Supreme Court Records, to be paid only from money received from the sale of Georgia Reports, the State Acts, and the Code, during 1920, such sums as may be needed."
My interpretation is, that thi"s means that the expense of this particular item of printing, is to be paid out of the money received from the sales of the Reports, Acts and Code during 1920. The time for the completion of the pri'nting does not seem to be limited; and I deem it proper that thi's bill be paid out of the funds above referred to.
With assurance of high respect, I am Very truly yours, GEO. M. NAPIER, Attorney-General.
"RECIPROCAL INSURANCE EXCHANGE" CANNOT LEGALLY TRANSACT BUSINESS WITHOUT FIRST OBTAINING LICENSE FROM INSURANCE COMMISSIONER.
August 13, 1921. Hon. William A. Wright,
Comptroller-General and Insura~ce Commissioner, State Capitol.
Dear General Wright: As to the proposed Insurance Exchange referred to in the letter of Mr. Walker Harlan to yourself under date of August 12, 1921, from which I quote:
32

"We have a reciprocal insurance exchange with headquar- . ters in Jacksonville, Florida, conducted for the benefit of the hardware dealers in Alabama, Florida, Georgia and Tennessee, which States compose the Southeastern Retail Hardware & Implement Association. We maintain Hardware Association headquarters here in Atlanta. This makes us maintain two offices for the conduct of our business. The most inconvenient and expensive part of .the arrangement is the dividing, of my time between the two offices.
"Plans have been completed to move our Hardware Association headquarters to Jacksonville in the same office with the insurance department. The thought occurred to me yesterday to talk the matter over with you and see if there was any arrangement that could be made, whereby the Alabama, Florida and Tennessee Insurance business could be conducted from Atlanta, and we still maintain the Jacksonville office for the conduct of the Georgia insurance business only. I have an idea that if the above plan would meet with your approval, that the Board would consider keeping the Hardware Association headquarters in Atlanta, and move the Alabama, Florida and Tennessee Insurance business here in the same office with the Hardware Association."
" . . . It will save expense of me running back and forth from Jacksonville so much and another feature, it would conserve my time. The above arrangement, as we understand it, would be within- the Interstate Commerce law, but would you be willing for us to do it?"
"Another point. If the above meets with your approval, would you permit us to keep a copy of the Georgia recotds here in the Atlanta office? Our only reason for wanting a copy of the Georgia records here would be for the inspection of the several Insurance Departments when they audit our Insurance Department, or, in other words, if we keep a copy of the Georgia records here, it will save an expense of making an audit here, and also Jacksonville. If the records are divided, the Insurance Auditors would have to make an audit at both Atlanta and Jacksonville. We will still maintain our Jacksonville office for the conduct of all Georgia business. We further understand that we can solicit Georgia business from Jacksonville by mail only."
This matter is controlled by Sections 2414 and 2443 of
our Code. Code Section 2414 provides:-
"COMPANIES MUST BE LICENSED. It shall not be lawful for any Insurance Company, chartered by this State or other States, or foreign government, to transact any business of insurance in this State without first procuring a license from the Insurance Commissioner."
Code Section 2443 defines an Insurance Agent as follows:
"DEFINITION OF AN INSURANCE AGENT. Any person who solicits in behalf of any insurance company, or agent
33

of the same, incorporated by the laws of this or any other State or foreign government, or who takes or transmits, other than for himself, any application for insurance or any policy of insurance to or from such company, or agent of the same, or who advertises or otherwise gives notice that he will receive or transmit the same, or who shall receive or deliver a policy of insurance of any such company, or who shall examine or inspect any risk at any time, or receive or collect or transmit any premiums of insurance, or make or forward any diagrams of any building or buildings, or do or perform any other act or thing in making or consummating of any contract of insurance for or with any such insurance company, other than for himself, or who shall examine into or adjust or aid in adjusting any loss for or in behalf of any such company, whether any of such acts shall be done at the instance or request or by the employment of such insurance company, or of, or by, by any broker or other person, shall be held to be the agent of the company for which the act is done, or the risk is taken."
The propositi'on is controlled by a decision by the Court
of Appeals of Georgia in:-
Jalonick vs. Green County Oil Co. 7th/311 : -
"The undisputed evidence shows that the plaintiff was the manager of the Cotton Seed Oil Millers Insurance Bureau; that the Bureau was not incorporated, and was located in the State of Texas, and was denominated by its manager as a 'mutual insurance company composed entirely of cottonseed oil mills; and its aim was to furnish its members with insurance at absolute cost.' The defendant, by a written contract, became a member of the Bureau, and the policy of insurance was issued, covering its property located in Greene County, Georgia, and the defendant made a written agreement to pay the $250 as premium. The policy was written in the State of Texas, and sent through the mail to the defendant in Georgia. Neither Jalonick, as manager, nor the Cotton Seed Oil Millers Insurance Bureau had any license from the Insurance Commissioner of Georgia to transact insurance of any character in the State of Georgia.''
"The Act of 1887 (Acts of 1887, p. 114) embodied in Section 2023 of the Civil Code of 1895, is as follows: 'It shall not be lawful for any insurance company chartered by this State, or other States, or foreign government, to transact any ...... business of insurance in this State without first procuring a license from the insurance commissioner.' The Supreme Court, in Fort vs. State, 92 Ga. 8 (18 S. E. 14, 23 L. R. A. 86) having held that this law only included chartered insurance companies, the legislature in 1893 passed an Act which provided that 'All laws regulating the business of insurance in this State by companies are applicable to individuals, associations, and corporations in like business.' (Acts 1893, p. 81, Civil Code of 1895, Section 2071). It is insisted that the
34

insurance policy in question was a Texas contract, and there- ,. fore it was not necessary to procure a license in Georgia; and it is also claimed that the plaintiff acted as a broker for the members of the insurance bureau, and that under Section 2072, of the Civil Code, the insurer was not required to have a license. Neither one of these positions is sound or tenable under the statutes of this State. Sections 2054 and 2055 of the Civil Code makes it a penal offense for any person to solicit insurance in this State in behalf of any insurance company, in this State or elsewhere, unless such company has received a certificate of authority from the insurance commissioners of the State, and Section 2072, supra, prohibits any person owing property in this State from procuring a policy of insurance from any insurance broker, unless such broker has been duly licensed. . We hold that under the law of this State no insurance company, domestic or foreign, chartered or unchartered, and no individual or association of individuals, can legally transact any insurance business of any kind or character within the State, without first having procured the license required to carry on such business from the commissioner of insurance of this State."
"The Interstate Commerce Commission does not regulate Insurance.
Based upon the statutes, and interpretation as to them, by our Appellate Courts, it is my opinion that such a reciproca'r insurance organization cannot carry on in this State any clearing house or exchange business, nor the handling of any insurance business for parties over in other States, without being first granted authority to do so by the Insurance Commissioner of the State of Georgia.
With assurances of high respect, Sincerely yours, GEO. M. NAPIER, Attorney-General.
ORDINARY SHALL RECEIVE ONE-HALF OF THE COMMISSION ALLOWED FOR COLLECTING INHERITANCE TAXES.
August 16, 1921. Hon. T. N. Holcombe, Ordinary,
Valdosta, Georgia. Dear Judge: Replying to yours of the fifteenth instant, wherein you ask an opinion as to the effect of the Act of
35

1919 "amending the inheritance tax law of 1913, and in which you ask whether the Ordinary is entitled to one-half of the commissions, or fees, paid to the Tax Collector, where the parties died prior to the Act of 1919, and where the estate has been wound -up, and all proceedings filed and finished since that time?"
This matter is controlled by the language of the Act of 1919, whi'ch says 'that immediately upon the filing of the report of appraisement, the Ordinary shall calculate and determine the amount of taxes due on such property under this Act, and shall, in writing, certify such amount to the Tax Collector, the State Tax Commissioner, the Executor, the Administrator or Trustee and to the person for whose use the property passes, and, for such service the Ordinary shall receive one-half of the commission hereafter allowed for the collection of such taxes."
. The fees allowed the Ordinari'es are in compensation of the services thus performed. If, in the estates to which you refer, the parties died prior to the Act of 1919 and where the estate has been wound up, and all proceedings filed and finished since that time, you have performed the services referred to above, and would be legally entitled to one-half of the commission allowed for the collection of the taxes.
In other words, no matter when the owners of the estates may have died, if nothing had been done toward the apprai'sement and the collection of the inheritance taxes until after the amendment passed in 1919, the Ordinaries who perform the services will be entitled to their fees, or onehalf of the commissions.
Trusting that this may have fully answered your inquiry, I am, with regards,
Sincerely yours, GEO. M. NAPIER, Attorney-General.
36

.
FEMALES ARE ENTITLED TO THE PRIVILEGE OF ELECTIVE . FRANCHISE.
August 16, 1921. Hon. Hugh Baird,
Tax Collector, Muscogee Countr, Columbus, Georgia.
My Dear Sir: In reply to, yours of the 11th instant, I beg to say:
On the 13th ihstant Governor Hardwick approved the Act of the present General Assembly conferring upon women in this State the privilege of exercising the elective franchise.
The chief enactment is in the followihg language: SECTION 2167. Females. Females are entitled to the privilege of the elective franchise, to hold any civil office or perform any civil functions in as full and complete a manner as the same can be enjoyed by any male citizen of this Stale; provided, however, females shall not be li'able to discharge any military, jury, police, patrol, or road duty. Female citizens have thus been placed upon a footing of equality with male citizens of this State, so far as the right to vote is concerned. Yet the women who vote in Georgia must meet all the requirements of the law as regards regi'stration by male
citizens, as a qualification to vote in the various elections.,
Therefore, if, under the rules for registration of citizens for municipal elections, females now have time to qualify, you are authorized to regi'ster them.
Sincere' ly y.ours,
GEO. M. NAPIER, Attorney-General.
37

COUNTY POLICEMEN CANNOT LEGALLY SERVE PAPERS IN CIVIL MATTERS.

Auust 17, 1921. Hon. H. A. Powell, N. P. & J.P.,
Summerville, Georgia.
Dear Judge: Yours of the sixteenth instant just received. The Act more clearly states the provisions in reference to the powers of County Policemen than the Code section. The Act of 1919, in Section 3 (Page 142) says:-

"That said County Police shall each of them have under the direction and control of the commissioners or ordinaries the same power to make arrests, and to execute and return all criminal warrants and processes as Sheriffs of this State
now have, and shall under the same directions and authority, have all the powers of sheriffs as peace officers, in the county of their election or appointment."

You will see that this indicates very clearly that the power and authority of County Poli'cemen is limited by this section to the service of crimin~l warrants and criminal processes, and they have all the powers of sheriffs as peace officers in their respective counties.

It is in my opinion that such County Policemen cannot

legally serve papers in civil matters. The Act does not seem

to intend or contemplate that County Policemen will be

brought into competition with bailiffs and constables. Of

course, these County Policemen might be temporarily ap-

pointed as constables if conditions should arise authori'zing

them to be sworn in.



With assurances of best wishes, I am,

Sincerely yours,

GEO. M. NAPIER,

Attorney-General.

38

.
FEES OF ORDINARY AND SHERIFF IN LUNACY CASES.
August 19, 1921. Hon. Elias Whitfield,
Ordinary Pickens Co., Ga., Jasper, Georgia.
Dear Sir: Replying. to your letter of the 18th instant, wherein you ask our opi'nion on the question of fees allowed the Ordinaries and Sheriffs of the several counties of the State, we beg to submit the following:-
Section 3101, Park's Annotated Code fixes the fees of the Ordinary and the Sheriff in all lunacy cases. These fees being $5.00 and no more for the ordinary and $3.00 and no more for the Sheriff.
The act of 1918, which you quoted in part in your letter, applies to the physici'ans that are required in these cases. The $10.00 that is mentioned in this Act is ip addition to the fees quoted in Section 3101.
Trusting that we have been of some assistance in clearing. up the situation for you I beg to remain,
Yours very truly, SEWARD M. SMITH,
Assi'stant Attorney-General.
FEES IN REGARD TO GRANTING LETTERS DISMISSORY WERE INCREASED UNDER ACT 1920.
August 20, 1921. Hon. W. B. Townsend, Ordinary,
Dahlonega, Georgia. Dear Judge: Replying to yours of yesterday, I beg to say: By reference to the schedule of fees. in Park's Annotated Code, you will find under Section 4827 a proviso that your . fee for reeciving applications and granting letters dismissory were fixed at $5.00, and that, on the second page over
39

it is stated "for services in making settlements of accounts of any Executor, Administrator, or Guardian as prescribed in this Code $10.00."
Under the Act of 1920 these fees were respectively increased to $7.50 and $12.00.
The services for which the fee of $12.00 is named is that service referred to in Section 4073 of our Civil Code.
Trusting this may clearly and cbmpletely answer your inquiry, and with best wishes for your conti'nued offcial success and for your personal happiness and prosperity, I am
Sincerely yours, GEO. M. NAPIER, Attorney-General.
BANKS MUST SIGNIFY WHETHER OR NOT THEY ARE INCORPORATED.
August 25, 1921. Hon. T. R. Bennett,
Superintendent of Banks, State Capitol.
Dear Sir:
In re: Use of name by Messrs. C. L. Hardwick & Company, Dalton, Georgia.
This matter was discussed between Mr. E. A. Thompson, Assistant Superintendent of Banks, and myself, a week or two since. At that time I had opportuni'ty only for a cursory examination of the Act.
The Act of 1898, Page 72, places a prohibition upon the use of the word "Bank" or the words "Banking Company," by private bankers, on their stationery, unless such bank should indicate in the same connection that the bank is not incorporated.
The Banking Act of 1919, provides:-
"No person, firm or voluntary association, or private cor. poration, other than a regularly chartered and organized
40

bank, shall use the words 'bank,' 'banker,' 'banking company,'

'banking house' or any other similar name indicating that

the business done is that of a bank, either upon an office

sign at its place of business, or upon any of its letteer heads,

bill heads, blank notes, receiptsfi certificates, circulars, or

any other written or printed paper, without also using there-

with the words, plainly written or printed so that the same

may be readily read 'Private Bank,' 'Not Incorporated' and

every person, firm, association or private corporation other

than a regularly chartered bank, advertising to receive, or

receiving deposits, shall at the window or desk at which

such deposits are received place a conspicuous sign with

letters not less than one inch in height upon which shall be

printed the words 'Private Bank, Not Incorporated.' Pro-

vided that any private banker, or bankers, engaged in the

banking business at the time of the passage of this Act,

I
!' '
i

may continue to use, without further qualification or restriction, the word 'Banker' or 'Bankers' where the use of their name conveys unmistakably that they are not incorporated."

The name, C. L. Hardwi'ck & Company, would indicate

very strongly that this is not a corporation; otherwise if it

read "C. L. Hardwick Company." Considering the long

period of years in which this firm has carried on a banking

business, and the evident purpose of the law to allow such

firms to continue the use of such names in pri"nting, sta-

tionery, etc., my opinion is that Mr. Harwick and his asso-

ciates may continue to use their stationery, etc., as here-

tofore.

Sincerely yours,

GEO. M. NAPIER,

Attorney-General.

BENZOL, BEING BY-PRODUCT OF COAL OIL, IS SUBJECT TO INSPECTION BY STATE OIL INSPECTOR.

Hon. J. J. Holloway, State Oil Inspector, State Capitol.
Dear Sir: We have for consideration the letter of one of your local inspectors, i'n which he says:-
"Can you tell us how soon Judge Wright will have our gasoline laws in proper shape? Some of our local oil com-
41

panies are very much inclined to the use of benzol, as it is not subject to inspection or taxes."
Also, this will serve to acknowledge receipt of the interesting and lucid letter of Dr. S. H. Wilson, State Chemist, on the subject of benzol, and other naptha and petroleum products.
On the subject of the duty of your Department to inspect benzol, the matter was passed upon by Attorney-General R. A. Denny. See opinions of Attorney-General 1921, page 138, in which it was held that your Department has full authority to inspect benzol.
In thi's connection it is well to consider Section 642, of our Penal Code, which reads:-
"SALE OF UNINSPECTED OIL: If any person shall sell or keep for sale or in storage, any crude or refined. petroleum, naptha, kerosene, earth-rock, coal, machine, or illuminating oil, the products of petroleum, earth-rock, or coal oil, without having the same inspected and approved by an authorized inspector, he shall be guilty of a misdemeanor."
Benzol is a by-product of coal-oil. It seems to be a volatile, inflammable and explosive substance, and that it can be used to operate a gasoline engine.
Construing the Act providing for inspection of oils, gasolines, etc., together with the penal statute above quoted, it i's clear that the intendment of the law is that Benzol should be inspected, and fee~ paid for such inspection, just as in the case of kerosene, benzine and gasoline.
It is my opinion that your local inspectors are authorized to inspect all benzol kept and offered for sale in this State.
Very truly yours, GEO. M. NAPIER, Attorney-General.
42

SEARCHES AND SEIZURES OF PROPERTY MUST BE REASONABLE.

Hon. Thomas W. Hardwick,

August 26, 1921.

Governor of Georgia.

State Capitol.

Dear Governor Hardwick: Replyi'ng to certain questions on the subject of the legality of search warrants propounded by W. Milton Thomas, Esq., of Athens, in his letter to Your Excellency, I have the honor to say:

The Constitution of the State contains the following:-

"6372. SEARCHES AND WARRANTS: The right of

the people to be secure in their persons, houses, papers and

effects, against unreasonable searches and seizures, shall not

be violated; and no warrant shall issue except upon probable

cause, supported by oath, or affirmation, particularly describ-

ing the place, or places to be searched, and the persons or

things to be seized."

'

1st.: The warrant may issue upon probable cause, supported by oath. 2nd.: The search should not be unreasonable.

The first depends upon the Magistrate. The second upon the Officer.

It has been expressly held:-

"It cannot be denied that the power of the State to protect the lives, health and property of its citizens, and .to preserve good order and the public morals, the power to govern men and things within the limits of its dominions, is a power originally and always belonging to the State, not surrendered to them by the general government, nor directly restrained by the Constitution of the United States, and essentially exclusive."

United States vs. Knight 156 U. S. 1.

Our own Supreme Court has held that all acts of our legislatures in prohibiting the maki'ng, the sale and the

43

keeping on hand of intoxicating liquors and beverages have been constitutional, valid, lawful.
Out of the effort to enforce these laws, many of them apparently drastic, has grown up the custom of search and seizure. The searches are not always reasonable, and yet, the Magistrate issuing the warrant must depend upon the good faith and the good judgment of the offi'cer executing the warrant for the search.
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the person or things to be seized.
Civil Code, Section 6687~ In the Williams case, 100 Ga. page 515, the Court, speaking through Mr. Justice Lumpkin, said:
"It may be here remarked that no distinction is, or should be, observed between an unauthorized search of the person, and one which merely involves an invasion of the citizen's constitutional rights to be secure in his houses, papers, and effects."
for none is recognized either by the Federal or by our State Constitution. The right to be secure in the lawful possession and enjoyment of property, evidently being regarded as no less sacred than the citizen's right to immuni'ty from an unreasonable search of his person."
Officers are presumed to perform their duties. If a Magistrate grant and issue. a search warrant upon alleged probable cause duly supported by oath of a responsible person, and an officer, armed with a warrant specifying the places to be searched and things to be seized, should search and seize, the presumption would be that the search and seizure were reasonable. But this, of course, could be rebutted by proof.
In conclusion, it may be said that the law authorizes the issuance of search warrants as hereinbefore set out, and
44

their execution in a reasonable manner. The Constitution guarantees no less; the law undertakes to justify no more.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
BANK ELIGIBLE FOR STATE DEPOSITORY.
August 2q, 1921. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwi'ck: Referring to your verbal inquiry as to the eligibility of The Citizens & Southern Bank of Atlanta to be designated, by yourself, as one of the State Depositories for Atlanta: There seems to be no legal obstacle whatsoever.
With the proper bond given, it appears that this bank
a will be very eligible depository.
Respectfully and sincerely your3, GEO. M. NAPIER, Attorney-General.
BANKS MAY ACQUIRE THE PRIVILEGE OF EXERCISING THE POWERS OF TRUST COMPANIES PROVIDED THEY HAVE A PAID IN CAPITAL OF $50,000.00.
August 29, 1921. Hon. T. R. Bennett,
Superi'ntendent of Banks, State Capitol.
Dear Sir: Complying with your request for opinion of this office, wherein you say:-
"I shall be very glad for you to examine amendment to the Trust Company laws as well as amendment to the Banking
45

Act as passed in 1920, and advise if, in your opmiOn, this Department can grant permission for an amendment to charter of a bank permitting acquisition of Trust Company powers and privileges when the capital is only $50,000 instead of $100,000 as indicated by the Banking Act." . . . . . .
The Act of 1917 provided that banks could exercise tlie powers of Trust Companies upon having a paid in capital of
$100,000.00.
An examination of the Act of 1917, page 81, reveals the fact that no specific secti'on of the Civil Code is referred
to in this amending Act, but it in reality refers to an Act of the General Assembly of Georgia which has been codi-
fied under Section 2817 of the Civil Code.
The Act passed by the General Assembly, approved
August 14, 1920, page 102, amends this section of the Code;
There can be no mistaking the legislative i'ntent to amend the law prescribing the necessary amount of capital paid
in before any bank is authorized to exercise the powers of Trust Companies. Following is the amendment:-
"Amendment to Section 1, Article 8, by adding and inserting at the end of Section 1, Article 8, the following:
" 'The pereon filing such application may also acquire all the rights, powers and privileges and immunities, and be subject to alL the liabilities and restrictions conferred and imposed upon trust companies by Sections 2815 to 2821, both inclusive of the Civil Code of Georgia of Hl10, and the several Acts amendatory thereof, and in addition to the usual banking powers conferred and described in this Act, providing Ruch applicants shall allege that at least $100,000.00 of capital stock has been subscribed and actually paid in; provided also such applicants shall pay to the Secretary of State upon filing such application to be converted by him into the Treasury of the State a fee of $25.00 in addition to the fee of $50.00 above provided, in all cases where trust company powers are desired as above set forth."
But on page 77 of the Acts of 1920 we find another and later Act of the General Assembly. The pertinent portion of it reads as follows:-
"Section 1. Be it enacted by the General Assembly, and it is hereby enacted by authority of the same, That Section 2817 of the Civil Code of the State of Georgia of 1910, as amended by an Act approved August 21, 1917, relative to the corporate powers and functions of trust companies, be
46

amended by striking the words 'One hundred thousand dol- . Jars' in the second and third lines of the paragraph immediately following paragraph 14, as approved August 21; 1917, and substituting the words 'fifty thousand dollars' in lieu thereof, so that said paragraph when so amended shall read as follows:-
" 'No trust company organized under the provisions of this article shall exercise arty of the rights and powers conferred until at least fifty thousand dollars of the capital stock shall have been subscribed and paid in. . '"
This Act was approved August 17th, 1920, and bei'ng later than the Act printed at page 102, et. seq., has the effect of repealing that Act.
Therefore, the final effect of this conflicting legislation is to provide that banks may acquire the privilege of exercising the powers of Trust Compan"ies, provided they have a paid i'n capital of Fifty Thousand ($50,000.00) Dollars.
Sincerely yoqrs, GEO. M. NAPIER, Attorney-General.
DEALER'S LICENSE ALLOWED BY SECURITIES COMMISSION.
August 31, 1921. Hon. T. B. Conner, Chief Examiner,-
Georgia Securities Commission, State Capitol.
My Dear Sir : Replying to your letter under date of August 26th, wherein you ask:-
"In the light of the definition of the term 'dealer' in Section 5 of the Act can the Commission construe Section 15 so as to provide for a dealers' license covering the classes described, the only thing' remaniing then for them to do being to furnish the Commission with a summary statement in accordance with Section 11, showing that each security to be offered is in Class 'C' and paying the filing fee of $5.00."
"Would such a construction of the Act necessitate the allowance of the same privilege to dealers in Class 'D' securities?"
47

1st. It can, by full compliance with the requirements contained in Secti'on 15 of the Securities Law. Acts 1920, page 260.
In construing the terms of the Securities Law, we need to have resort to the terms of its predecessor, "The Georgia Blue Sky Law."
The current of authority in this country, at least, at the present day, is in favor of reading statutes according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of ei'ther limiting or extending their operation.
Persons vs. Wright, 4th Ga. 485. 2nd.: It would not. The securities defined under class "D" and those now defined class "C" are qui'te differei:J.t indeed, and each stand upon their respective merits.. In this connection we may be reminded: A substantial "compliance with any requisition of the Code, or laws amendatory thereof, especi'ally on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by the enactment. Civil Code, Section 4, Paragraph 6.
Very truly yours, GEO. M. NAPIER, Attorney-General.
WARRANTS DRAWN ON W. & A. R. R. RENTAL NOT TAXABLE.
August 26, 1921. Hon. S. G. McLendon,
Secretary of State, State Capitol.
Dear Sir: In response to your verbal request, as to whether certain warrants contemplated to be drawn on the
48

Western and Atlantic R. R. Rental Fund, to the State, are ..
taxable in Georgia. PENICK VS. FOSTER 129 Ga. page 220 reads as follows: "The government, whether it be the State or one of its
. political subdivisions, is dependent, for the due exercise of its powers, on certain instrumentalities needful and proper in the matter with which it is dealing. Credit is absolutely indispensable to any government, whether it exists in the form of a State government or in the form of one of the poli'tical subdivisions of the State. It becomes necessary, in the life of a State, as well as to its political subdivisions, to be able to establish credit in order to carry on successfully and property the governmental functions." The State can neither tax itself, nor tax its own property, assets or income. Nor would any political subdivision of the State have authority to levy a tax upon the property, assets or income of the State. This inhibition would apply to municipalities. It follows that the said warrants would not be taxable by the State or by any of its political subdivi'sions. Of course, if the State should dispose of these warrants as free from such taxes, the State would be pledged to maintain the same as so tax free; just as the State, in transferring the warrants, is pledged and bound to protect the purchasers thereof. The legislature has exempted public property from taxation. The Western and Atlantic Railroad and the rental income from it are public property and both are exempted from taxati'on in this State. Respectfully submitted, GEO. M. NAPIER, Attorney-General.
49

STATE OIL INSPECTOR UNDER NO OBLIGATION TO REFUND INSPECTION FEES ON GASOLINE, ETC., RE-SHIPPED.
August 31, 1921.
Hon. J. J. Holloway, State Oil Inspector, State Capitol.
Dear Sir: Replying to your favor under date 29 instant, wherein you ask an opinion of this office regarding the practice of refunding fees received by Local Inspectors on oils brought into the State and reshipped into other States.
Apparently there fs no legal basis for the practice of refunding such fees by the State of Georgia.
My information is that some of your predecessors established the practice, or rule, whereby our local inspectors refunded the inspection fee of one-half a cent per gallon to Oil Companies who presented bills for such refund upon a statement that certain quantities of oils inspected in Georgi'a have been re-shipped into another State.
This practice, so far as I am advised, applies to the sections contiguous to the borders of adjoining States.
It may not be said affirmatively that it is illegal to maintain the practice of refunding these fees, but the law does not seem to contemplate such refund. Our Code, Section 1809, states:-
"It shall be the duty of all inspectors to .inspect all gasolines, benzines and naphthas sold, or offered for sale, in this State."
Of course, i't would not be unlawful for such oils to be transported through the State.of Georgia into another State, but when portions of the oils inspected by our local inspectors are afterwards drawn off, and sent into other States, it appears to be uncertain and an unsafe practice for the State to have to refund the money received for inspecting this oil. It seems to inure to the benefit of the Oil Companies, and to the detriment of the State.
50

If thi's practice is maintained in your Department it . seems there should be some rule by which the State would not be imposed upon to the extent of making inspections and having t~ refund fees.
The Inspector does the work and is entitled to his fees, and your Department is under no obligation to make such
inspection for the benefit and convenience of the Oil Com- panies. If it is to thei'r convenience to have the oil shipped to certain points within the State of Georgia for sale in the contiguous territory (in Alabama, Florida, Tennessee or South Carolina) the Companie~ should be willing to pay for that convenience which they- thus recei've. Of course if it affirmatively appears that oil shipped into Georgia is sold, or offered for sale to parties over the line in another State, the law would not, in that event permit any refund of fees in any circumstances.
At any rate, your Department is under no obli'gation to maintain the practcie of refunding fees.
The law further says that. the Commissioner of Agriculture shall be authorized to make such rules for your Department as he may deem proper.
The matter, therefore, resolves itself, in one of discretion of the Commissioner in making rules governing the matter herein considered. But nowhere does our law make it obligatory upon the Commissioner of Agriculture to formulate a rule allowing a refund of such fees.
Very truly yours, GEO. M. NAPIER, Attorney-General.
51


GASOLINE USED BY FUEL DEALERS SUBJECT TO INSPECTION.

September 5, 1921.
Hon. J. J. Holloway,
State Oil Inspector,
State Capitol. Dear Sir: Replying to yours of the second instant, to which was attached a letter from Mr. R. E. Hodgson, District Manager Standard ~il Company, in which he says:-
"The Georgia inspection law on gasoline provides that we must pay one-half cent per gallon into the State on every gallon of gasoline which we sell within the State. The law does not provide that we shall pay this inspection on such gasoline as we use in the operation of our own motor vehicles. While we have, for some time past, been through oversight, paying inspection on such gasoline as we have used, we wish as of August 1st to eliminate the payment of inspection on this gasoline, provided it is your opinion that we are not liable for inspection on gasoline used in oU:r own vehicles."
We beg to say that:
Section 1809 (e) of the Ci"vil Code of Georgia settles this question:-
"The provisions of this law shall apply not only to gasolines, benzines and napthas sold or offered for sale in the State of Georgia, but likewise to all such commodities that m'ay be sold elsewhere and brought into the State of Georgia, for consumption or use. When such commodities or any of them may be purchased within the State of Georgia, or without the State and brought into the State, by any person, firm or corporation, not for the purpose of selling or offering the same for sale, but for the purpose of consumption or use by the purchaser in manufacturing or other lawful purpose, either as fuel or otherwise, the inspections herein prescribed shall be made, and the fees above fixed shall be paid therefor, except that no such purchaser shall be required to pay more than $1,200 per annum for the inspection of all such commodities used or consumed by him as aforesaid, and such payments may, in the discretion of the Commissioner of Agriculture, be divided into equal monthly payments of one hundred dollars each."
From the language of this section of the Code it is clearly provided that your Department is required to inspect and
52


.
collect fees for inspecting all fuel oils "brought into the State of Georgia, for consumption or use."
It, therefore, follows that all importers or other dealers in such commoditi'es, and transporting their wares about the State of Georgia with the fuel oils brought by them in the State of Georgia for the purpose of supplying their own trucks, or other vehicles of transportation must, nevertheless, submit to inspection of such fuel oils, etc., as are intended even for their own use as aforesaid.
Trusting thi's may fully answer the question, I am, Very truly yours, GEO. M. NAPIER, Attorney-General.

AS TO LIABILITY OF GOVERNOR'S MANSION PROPERTY TO TAXATION.
September 6, 1921. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick: In response to your verbal request, that we report on the question, whether the property located at the corner of Peachtree and Cain Streets, in the City of Atlanta, will be subject to taxation, aJter it shall have been leased?
The following opinion is submitted: Sectiort 6554 of the Civil Code, which section is a part of the Constitution of the State of Georgia, reads:-
"The General Assembly may by law exempt from taxation all public property; places of religious worship or burial; all institutions of purely public charity; all buildings erected for and used as a college, incorporated academy, or other seminary of learning; the real and personal estate of any public library, and that of any other literary association used by or connected with such library; all books and philosophical apparatus; and all paintings and statuary of any company
53

or association, kept in a public hall, and not held as merchandise or for purpose of sale and gain: Provided the property so exempted be not used for purposes of private or corporate profit or income."
"The General Assembly shall further have power to exempt from taxation farm products, including baled cotton, grown in this state and remaining in the hands of the producer, but not longer than for the year after their production."
The Act of the General Assembly of 1878, page 32, reads as follows :-
An Act to carry into effect Paragraph 2, of Section 2, of Article 7, of the Constitution of this State, in reference to the exemption from taxation of certain property therein described.
"Section 1. Be it enacted by the General Assembly of the State of Georgia, That the following described property shall be exempt from taxation, to-wit;
"Atl public property, places of religious worship, and places of burial, all ir..stitution of purely public charity, all buildings erected for and used as a college, incorporated academy, or other seminary~ of learning, the real and personal estate of any public library and that of any other literary association used by, or connected with, such' library; all books, philosophical apparatus, paintings and statuary of any company or association kept in a public hall, and not held as merchandise or for purposes of sale and gain; provided the above described property so exempted be not used for purposes of corporate profit or income."
Section 6556, Article 7, Paragraph 4, of the Constitution reads:-
"Section 6556, Par. 4. Laws exempting property void. All laws exempting property from taxation, other than the property herein enumerated, shall be void."
It will b; notic,ed that the Constitutional provision, and the legislative enactment contain exactly the same proviso.
The provi'so is controlling. As it was observed by Dwarris, the great authority on statutes:-
"A proviso directly repugnant repeals the purview."
Our Supreme Court has held:-
"It is the use of the property which renders it exempt, or non-exempt, not the use of the income derived from it."
Linton vs. Lucy Cobb Institute, 17 Ga. p. 685.
54

"The proviso in Civil Code Section 5884 (now 6554) was no doubt intended to settle this question by extending the exemption only so long as the property was used for the quasi public purpose. Whenever it was used for profit or income, it lost the exemption which was granted so long as it was devoted to charitable, religious or educational purposes."
Idem, p. 686.
Exemptions are in derogation of equal rights, and must be
strictly construed :-
"All exemptions from liability to taxation are construed strictly. Without reference to other States, or to elementary works, it is enough to say that this Court, in the well considered case of The Mayor and Council of Macon vs. The Central Railroad Company, 50th Georgia, 620, ruled this principle, after holding up the case for a term for further and full examination. And it ought to be so held. The power to tax is the lifeblood of the State and the governing communities, county and municipal, which are the limbs of the State, essential to the well being of the entire body politic-indeed to its healthful action and the preservation of life. And the Supreme Court of the Union, as of this State, so rule, and the whole current of the law flows in the same channel with scarcely a ripple in its course.
Atlanta Street R. R. Co. vs. City of Atlanta, 66th Georgia, pp. 107-108.
Should the property, on which the old building known as
the Governor's Mansion is now standing, be leased for a
term of fifty years, and should there be erected! thereon
an office building, a hotel, or a department store, for fn-
stance, would the thus changed use of the property render
it non-exempt from taxation?
Would the income be private or corporate profit or in-
come? Would the land which has been the site of the time-
honored, but now dilapidated "mansion" be public in i'ts
use and subserviency; or, after the superstructures shaJl
have been erected for the purpose of ali"gnment with mam-
mon, will the rentals and income be subject to classification as "private or corporate profit or income"?
These are the questions for determination. The leasehold will continue, say for fifty years. It is to
be considered whether the lessee would have such an interest in the property as would subject it to taxation, even though
55

at the end of the half century, the buildi'ngs attached to
the realty sh'all revert to the State of Georgia.
The great analyst of the law, Chief Justice Bleckley, held
in an almshouse case:-
"We doubt not the entire establishment, however extensive or composite, would be exempt from taxation if used directly and solely for public charity, and not as a source of profit or income. The property, though enumerated in the Constitution and Act of 1879, is not to be exempt if used for income, whether private or corporate, is manifest from the proviso with which the clause in both instruments concludes. The terms 'private or corporate' are employed in contradistinction to public. Public property, when productive, yields public income to the State, the county, the city or the town; but all other property enumerated is either private or corporate income. Public property is not taxed whether income be derived from it or not; but private or corporate property though it be connected with the external, visible institution, is not exempt if used for income, since the income from such property must, by. reason of its ownership, be either private or corporate, these terms being comprehensive enough to include all income whatsoever that is not public."
Trustees, etc., vs. Bohler, Tax Collector. 80th Georgia, p.p. 162-163.
and again:-
"If property is allowed to be used as taxed property, it also is to be taxed. If it comoetes in the common business and occupations of life, with the property of other owners, it must bear the tax which theirs bears. Thus, if even a synagogue or a church were rented out during the week for a store room or a shop, though divine service might be performed in it on Saturday or Sunday, and though the rents were all appropriated to religious or charitable uses, its exemption would be lost."
"When the tax officer goes forth to search for taxable property, all of which he finds employed in the ordinary uses of common life, unless it belongs to the public, he is to regard as taxable. When exemption is claimed, he is not to look for persons, natural or artificial, nor for ideal beings, but for real, visible things."
In the next succeeding volume, the Court held:-
"We arrive at .the conclusion that the property itself, claimed to be exempt, must be used directly and immediately for the charitable object, not from any express declaration to that effect in the Constitution or the statute, for there is none, but from the negative contained in the proviso upon use for private or corporate profit or income. Interpreting 'private or corporate income' to mean any income which is
56

not public, we consider that productive property used as capital to raise money to expend in charity ffi used for private income when the owner is a private individual, and for corporate income when the owner is a corporation."
Massenburg vs. Grand Lodge, 81 Ga. p.p. 217- 218.
"It is the use made of the property, and not the purchase
or sale thereof, which determines the matter of taxation."
Georgia Mausoleum Co. vs. Dublin, 147 Ga. 653.
"The use to which the property is devoted is to be looked to to determine whether or not it is exempt. 4 Dutcher, 103; 28 La. An. 212, 19 Ohio, 110, 36th Ohio St. 258, 3rd Michigan 173. That property though enumerated in the Constitution and Act of 1878, is not to be exempt if used for income, whether private or corporate, is manifest from the proviso with which the clause in both instruments concludes. All property other than that which is public is either private or corporate; and if it yields income at all, it is either private or corporate income; and the private or corporate income as used in this section has been interpreted to mean any income which is not public. Massenburg vs. Grand Lodge, 81 Ga. 217. Income as defined by Mr. Webster, is that gain which proceeds from labor, business, property or capital of any kind; as, the produce from a farm, the rent of houses, the proceeds of a professional business, the profits of commerce or of occupation, or the interest of money or stock in funds, etc.; revenue, receipts, salary; especially the annual receipts of a private person or a corporation from property, etc. Webster's Int. Dictionary 745. In Anderson's Dictionary of Law, 532, income is defined to be: 'that which comes in or is received from any business or investment of capital, without reference to the outgoing expenditures.' Profit means acquisition beyond expenditure; excess of value received for producing, keeping or selling, over cost; hence pecuniary gain in any transaction or occupation; emolument. Webster's Int. Die. 1144."
Munday vs. Van Hoose, 104 Ga. p. 299.
"It must be conceded to the State that whether a tax exempting clause be viewed from the standpoint"of the State down to the people or from the standpoint of the people up to the State-, there be unbending and inviolate rules which, as sure as words of the law, are always to be reckoned with, and those rules (from the standpoint of the State) are that an abandonment of the sovereign right to exercise the vital power of taxation can never be presumed. The intention to abandon must appear in the most clear and unequivocal terms. (Pac. R. Co. vs. Case County, 53 Mo. 100. cit. 27); and from the standpoint of the people they are, that equality is equity in taxation; that the yoke of taxation-a forced contribution of all citizens; that to relieve one but increases the burden for governmental needs-should rest evenly upon the necks of the other that tax exemptions are in derogation of equal
57

rights-are contrary to common right, hence are not to be favored by the courts, but should be construed strictly, and confined to the subjects specified, including such as are necessarily within the contemplation of the legislation under review. Kansas City Exposition Driving Park vs. Kansas City, 21 L. R. A. (N-S)."
Idem, page 174, Citing the Georgia cases.
As remarked by the Court in the Massenburg case, cited supra:-
"The more one investigates the constitutions, statutes and reports of the several States, the more will he be impressed with the tendency to narrow the range of exemption from taxation."
In a Pennsylvania case a lot, owned by the borough had been dedicated for market and other purposes. Contract was made with certain parti"es who were to erect a suitable brick building, according to plans adopted by the borough, on the "square," to be !J-Sed for a public market house, in and for said borough; possession to be given to the borough, after the expiration of a period of t~n years. The lessees were to retain possession for the time stipulated, and could let said bui1ding, and retain the rents, issues and profits thereof until possession should be taken by the borough, as provided.
The Supreme Court of Pennsylvania held that the Market House was taxable.
If the State should lease its real estate to an individual, or to a corporation for the purpose of allowing the erection thereon of a building, or buildings, for business uses, and
fur thepurpose of producing income and profits, the present
character of the property which is distinctly public-a home for the State's Chief Executive-the very character, nature and use of the property, would be changed.
When so changed, this property would be in competition with other lines of property, business and enterprise of similar character, and, like them, should bear its proportion of the burden of taxation.
My opinion is, then, that in the hands of lessees, the said
58

property, when used to produce profits or income, will be subject to taxation.
Respectfully submitted,
GEO. M. NAPIER,
Attorney-General.
Hon. Thomas W. Hardwick,
Governor of Georgia,
State Capitol.
Dear Governor: This is to acknowledge receipt of yours of this date, to whi'ch is attached letter from Honorable George W. Stevens, State Reporter, as follows:-
"I understand that the que'Otion of law that you wish to refer to the Attorney-General, is whether the Act of 1920 (Georgia Laws 1920, page 237) Section 3, is mandatory in requiring that the contract authorized and required by that law be made with the lowest bidder who complies with the terms of that law (shows himself able, prepared, ready and willing to perform the contract and make the bond pursuant to law); or whether, on the other hand, the State's Chief Executive has the legal power, consistently with this Statute, and the general law of the State, to adopt and :enforce a policy of declining, for reasons that seem good to him, to approve a contract awarded by the Reporter for the Supreme Court to a contractor resident in another State of the United Sta~es, whose bid is the lowest, provided that a resident contractor acceptable to the Reporter (although one of the competing bidders) presents, before the contract is approved, an offer to execute and perform the contract at the price stated in the bid of the contractor to whom the Reporter has awarded the contract, the 'right to reject any and all bids' having been reserved. In addition to the Act of 1920, supra, !)ee Civil Code, Section 1349, superseded by said Act and Peeples vs. Byrd, 98th Georgia, page 688, decided under the older law; also Byrd vs. Cook, 146th Georgia, pages 657659."
I have the honor to reply:-
Section 1349 (Acts 1883) of our Civil Code provides:-
"Reporter to contract for printing. The Reporter of the Supreme Court, with the consent and approval of the Governor, shall have power to award the contract for the publication of the Supreme Court Reports in the same general manner as the contract for other public printing is now awarded, but in making such award the said Governor and the Reporter shall not be limited to the lowest bidder, but
59

may take into consideration the responsibility of such bidder, and his capacity and ability to perform such contract, in all cases making such award as will promote the best interests of the State, and secure the cheapest and most prompt and efficent performance of said contract."
This section was construed in the case of:-
Peeples vs. Byrd, 98th Georgia, page 691:-
"It will be observed, however, that the second section of the Act of 1883 distinctly declares that the Governor and Reporter shall not be limited to the lowest bidder, and confers upon them a very broad discretion in this regard, the scope and extent of which was sufficiently apparent from the language of the statute. Undoubtedly then,.it is their right, under the law, to reject any and all bids. The advertisement published in the present instance, distinctly reserved this right; and we are therefore decidedly of the opinion, that their authority to exercise it was beyond question."
Our Supreme Court held in the case of Byrd vs. Cook:-
"Section 3. The Reporter, acting with the advice of the Governor, shall from time to time, as the occasion may require, prepare and outline a proposed contract conforming to the provisions of the Act in general detail, but leaving blanks to be filled where necessary from the bids to be submitted as hereinafter provided for, and shall file the same in the office of the Governor for public inspection. The Governor shall, thereupon, advertise for bidders under said contract. Said advertisement shall be published twice in separate weeks, in some daily newspaper of said State, and shall designate the time, place and manner in which bids will be received. The right to reject any and all bids shall be reserved. The Governor and Reporter to contract with such lowest bidder in the event such contractor complies with the terms of this law."
Section 18 of the Act of 1920, hereinbefore cited pro-
vides:-
'The requirement that bids shall be invited as to the lowest terms the bidder will undertake to perform the work is designed to secure the most advantageous contract for the State. Unrestricted competition among bidders is expected; and the statute regulating such bidding should be so construed as to encourage, and not restrict, bidding."
"Byrd vs. Cook, 146th Ga. p. 659."
Thi's must be considered, it seems, in the light of the
provisions of Section 1349, part of the tenth title, at chap-
ter six, of the Code of 1910.
60

.
The retention of the right to reject any or all bids necessarily prevents the supersession of that portion of Section 1349, which provides: "In all cases making such award as will promote the best interests of the State, and secure the cheapest, and most prompt and efficient performance of sai'd contract."
And yet, the last words of the Act of 1920, supra, are:"The Governor and Reporter to Contract w!th such lowest bidder, in the event such contractor complies with the terms of this law."
In my opinion the law is not mandatory in requiring the contract to be let to the lowest bidder, if responsible.
But the provisions of the law, and the i'nterpretation of the principles involved, by the Supreme Court of this State, seem opposed to the adoptipn, and enforcement of an executive policy of declining to send work outside of the State, if an offer is obtained from responsible parties inside the State at a pri'ce no higher.
The instant case is a concrete example. If the lowest bid is satisfactory, save that it is made by a concern without the State, it could be rejected only upon the ground that resident contractors are preferred. An admirable ground, if sound in reasoning. But says the law: "Unrestricted competition among bidders is expected; and the statute regulati'ng such bidding should be so construed as to encourage and not to restrict bidding."
Should the work be re-advertised, bidders from without the State would, of course, withdraw from the lists, and a coterie within the State could force the letting of the work to one of their number at a higher figure. Competition would thus be stifled, and the interests of the State would suffer.
The State would pay more for the volumes used, and her people would, in taxes, pay the advanced pri'ces. Lawyers and users of the books would suffer, by reason of the restricted competition.
61

The duty of the Commissioner of Public Printing may properly be cited in this connection:-

"So much of the law now contained in the Code of 1910 tenth title, chapter 6, as is not necessarily superseded by the terms of this Act, is hereby retained in force."
There is no proscription to be found in the law against a non-resident of Georgi'a. The advertisement for this skilled work is an invitation to all comers. The question of their ability, solvency, general qualification, is left to the Governor and the Reporter, under, as it seems, the broadest policy to encourage unrestricted competition.

I now quote the following paragraphs from Your Excellency's letter:-

"In a.ddition to the above, two of the Georgia bidders have now offered, pending final action by me on the matter, to meet the bid of their Missouri. competitor, and have obligated themselves, in writing, so to do, if I should refuse to approve the award of Mr. Stevens."

"The question I wish to present to you is this: Under the

Act referred to, have I the right to reject any and all bids

because I believe, as a matter of public policy, that the work

ought to be done in this State, if the Georgia bidders will

meet the lowest price submitted."



The Act of 1920, Section 3, provides expressly that:-

"The right to reject any and all bids shall be reserved."
"The contracts for such public printing will be awarded to the lowest and best bidder whose bid is filed in compliance with the law, provided it shall appear that such bidder has the capacity and ability to perform the contract in such a way as will promote the best interests of the State, and secure the cheapest and most competent and efficient performance of the contract."
Civil Code, Sections 1338-1339;
Byrd vs. Cook, 146th Ga. 658.
My conclusion, after an exhausti've investigation of the
law is:
1st: The right is undoubtedly reserved to you to reject any and all bids, under the provisions of Section 1349, of the Civil Code. But the law does not proscribe a bidder because he is so unfortunate as to reside without the bor-
62

ders of our State. A~d the simple fact that he is a non- .
resident would not be a legal ground on which to reject hi's bid, although the fact involves the necessary resultant that the money for this printing and publishing will be sent without the State, when it would be so desirable to have it expended to maintain employment of persons living within the State.
2nd: The spirit, if not the letter, of the law, would requi're the re-advertisement of the proferred contract, in the event the lowest bid, now in hand, should be rejected.
In a case involving the building of a court house, it was recently held:-
"Contracts for building a court house, under the statutes mentioned in the preceding notes, can be entered into by the county authorities only after advertisements for bids in accordance with the statute, and must be let to the lowest bidder as provided by statute, and the advertisement should invite all reasonable competition."
Bird et. a!. vs. Franklin County Commissioners. Supreme Court of Georgia, January lith, 1921, 106th S. E., page 834.
The concluding sentence of Section 3 of the Act of 1920 is: "The Governor and Reporter to contract with such lowest bidder in the event such contractor complies with the terms of the law."
This clearly narrows the determination of the matter, and would seemingly confine the consi'deration of the bids to the basis of ability to comply with the law, and the efficiency, promptness and economy with which the work contracted for can be performed and delivered; and, therefore, the law does not contemplate the adoption of any executive policy or restriction not entirely consonant with the broadest competition, both wi'thin and from without the State of Georgia.
GEO. M. NAPIER, Attorney-General.
63

CHANGES IN BOARD OF COl\11\IISSIONERS OF CHARLTON COUNTY EFFECTIVE JANUARY 1, 1922.
September 7, 1921. Ron. Thomas W. Hardwick,
Governor of Georgia, State Capi'tol.
Dear Governor Hardwick: In response to your verbal request for an opinion of this office as to the time on which an Act amending the Act creating a Board of Commissioners for Charlton County, and approved by Your Excellency on the tenth day of August, 1921, becomes operative, we beg to submit:-
This Act very materially changes and modifies the Act creating the Board of Commissioners of Roads and Revenues of Charlton County, approved August 12th, 1920. By that Act the Board of Commi'ssioners of Roads and Revenues for said County was fixed at three members, and, according to the scheme of that Act, the same became operative on the first day of January, 1920, and the number of days pay for each of the members of said Board was designated for a period of one year.
The Act approved August 10, 1921, provides that said Board of Commissioners of Roads and Revenues for Charlton County shall be composed of five members. It provides that one of these shall hold office for the period of one year from the first day of January, 1922, and it is further enacted that each of the other four shall begin their terms of service on the first day of January, 1922.
What might be termed the schedule fn this Act revolves around the first day of January, 1922.
In another portion of the Act it provides: "That this Act shall go into effect and become operative on the passage of same and approval of the Governor."
There are certain provisions in this Act which refer to other Acts "heretofore approved by the G'eneral Assembly
li4


relating to the Board of Commissioners of Roads and Revenues for the County of Charlton."
It would be legal for the present Board of Commissioners to consider and enforce any laws i'n the previous Act or Acts relating to the powers and procedure of the Board of Commissioners of Roads and Revenues of Charlton County. In my opinion, the personnel of the Board cannot be changed until the first day of January, 1922.
The definite and repeated reference to the time when each of the five members shall begin their terms of service i's; in my opinion, controlling under the law, and the beginning of thei'r official terms must, therefore, be postponed until the first day of January, 1922.
Sincerely yours, GEO. M. NAPIER, Attorney-General.
INCREASE IN TAXATION TO SUPPORT PUBLIC SCHOOL INVALID, UNLESS AUTHORIZED BY POPULAR VOTE.
September 7, 1921. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor: I have the honor to reply to your letter of even date herewith, to which was attached letter of Mayor 0. B. Manees, of Canon, Georgial wherein he inquires as to the validity of an Act of the General Assembly of 1921, amending the Act of 1911, page 894, which established a public school system for the city of Canon.
The Act of 1921 undertakes by mere amendment to increase the rate of taxation upon the property of the City of Canon, from one-fourth of one per cent to three-fourths of one per cent.
The said Act does not provide for an election to ratify or reject the proposed increase of the rate of taxation from
65

twenty-five cents to seventy-five cents on the hundred

dollars.

This increase in the rate of taxation for school purposes

would be invalid and unlawful unless authorized by a vote

of two-thirds of the legal voters of the municipal corpora-

tion who shall vote at an election to be held for that purpose.

I am, therefore, obli'ged to advise thht the authorities of

the city of Canon cannot legally proceed to levy and col-

lect the increased taxes, for the reasons "above stated.

Respectfully submitted,

'

GEO. M. NAPIER,

Attorney-General.

BOARD OF EDUCATION HAS THE RIGHT TO SAY WHETHER THE TAXES SHALL BE FIVE 1\IILLS ON THE DOLLAR OR LESS.
September 19, 1921. Hon. Eschol Graham,
Judge Oconee Circuit, McRae, Georgia.
Dear Judge Graham: Replying to yours of the 17th instant, in which you ask my opinion as to the particular meaning and effect of the amendment to the Constitution adopted in 1920, which says:-
"The proper county authorities whose duty it is to levy taxes for county purposes in this State shall, on the recommendation of the Board of Education assess and collect taxes for the support of the public schools under its control, or not less than one nor more than five mills on the dollar of all taxable property outside the independent local systems."
My opini'on is that the clear and unequivocal intendment of the Legislature as to the meaning of this language is that the County Board of Education fixes the amount, or rate of taxation; that is, that the Board of Education has the right to say whether the taxes shall be five mills on the -dollars or less, and to fix the exact number of mills to
66

.
be assessed by the County Authorities whose duty it is to levy the taxes for County purposes.
In this connection you will find of great i'nterest a decision in the 72nd Georgia, Pages 552 and 553, being the case of Smith vs. Bohler.
Assuri'ng you of my pleasure at being called upon in this matter, and trusting that this may answer your inquiry, I am, with best wishes,
Very sincerely yours, GEO. M. NAPIER, Attorney-General.
COUNTY BOARDS OF EDUCATION EMPOWERED TO RECOMMEND WHAT Al\IOUNT OF TAXATION FOR SCHOOLS SHALL BE LEVIED.
September 15, 1921. Prof. Carlton B. Gibson,
Supt. of Schools, Savannah, Georgia.
Dear Sir: Your recent letter has remained unanswered, for the reason that part of the time all my attention was requ ired in looking after some litigation begun on the part of the State.
My interpretation of the Constitutional Amendment adopted,last November is, that it empowers County Boards of Education, wi'thout any election, to recommend what amount of taxation for schools shall be levied, anywhere from one (1) mill to five (5) mills in the limits of their respective counties.
This tax to be in addition to any tax up to five (5) mills voted by the County, or by any school sub-divisi'on thereof.
The law expressly provides that counties having a "local school system of taxation adopted prior to the Constitution of 1887" do not fall under the application of the Constitutional Amendment adopted last November.
67

The Constitution of 1877 expressly excepted the then "existing local school systems."
Chatham County, therefore, is not subject to the recommendati'on of its Board of Education, authorizing the levy of an additional tax. And, in order to legally hold an election to increase your County taxes for the support of education, a special Act of the Legislature will have to be passed by our General Assembly.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
ORDINARY REQUIRED TO FIX BOND OF TAX COLLECTOR.
September 15, 1921. Ron. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor: Your letter of the 14th inst., enclosing letter from the Tax Collector of Charlton County, Georgia, received and contents noted, and in reply beg to submi't the following:
SECTION 1208 PARK'S CODE holds that a bond for County taxes when given must be approved by the Ordinary, filed in his office, recorded in the book with other official bonds, and in all respects is an official bond.
SECTION 292 PARK'S CODE holds that an official bond of a Tax Collector, gi'ven for County taxes, must be approved by the Ordinary and filed in his office, and by him recorded.
MALOY VS. WILLIAMS ET. AL. 140 GA. 376 upholds the above Code sections.
In view of the above authorities it is my opinion that
68

,
the Ordinary of Charlton County is required to fix the bond of the Tax Collector.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
COST OF STANDARD OF WEIGHTS AND MEASURES FOR COUNTIES PAYABLE OUT OF CONTINGENT FUND OF STATE.
September 20, 1921. Hon. Thomas W. Hardwick,
. Governor of Georgi'a, State Capitol.
Dear Governor Hardwick : In response to your letter, enclosing letters of the Ordinaries of Lowndes and Terrell Counties, as to obtaining standards of weights and measures, and your inquiry whether the contingent fund may be rightfully used in purchasing standards of weights and measures for various counties i'n need of them:
The law is imperative that when counties make requisitions for standards of weights and measures the Governor shall furnish them.
No appropriation or provision having been made for the expense incident to the purchase of such standards of wei'ghts and measures, the law, in my opinion, authorizes the payment of the cost of same out of the contingent fund.
A principle in point is contkined in the language of Code Section 318, where, in reference to the payment of the salaries of persons for whom no compensation is prescribed, it provides:-
"If no money is thus appropriated, and the employment is indispensable, he (the Governor) has the privilege to pay them out of the contingent fund."
In the matter of the standards of weights and measures, they are indi'spensable, under the law; and if no money has
69

been appropriated to pay for them, the Governor would be authorized to pay for them out of the contingent fund.
This opinion is in accord with that of former AttorneysGeneral.
The United States' Standard of Weights and Measures should be obtainable from the United States'_ Bureau .of Weights and Measures, Washington, D. C.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
FAlLURE OF OFFICER TO GIVE BOND WORKS NO INJURY. UNLESS BY DEFAULT OF OFFICER.
September 16, 1921. Ron. Thomas W. Hardwick,
Governor of Georgi'a, State Capiotl.
Dear Governor Hardwick: I have the honor to acknowledge the reecipt of your letter to which is attached the letter of Honorable W. H. Stembridge, Ordinary of Baldwin County, wherein he states that Honorable J. H. Gladin, County Surveyor-elect had not qualified for this term of office.
He further states that Mr. Gladin claimed that he had arranged with the Agent of a Bonding Company to make his offi'cial bond, and thought that same had been done until his attention had been called by Judge Stembridge to the fact that he had not qualified by making bond. Judge Stembridge states that he has allowed Mr. Gladin to qualify by executing a satisfactory bond, and that he has mailed to Your Excellency the Dedimus to be filed with the other County officers of Baldwin County. The statute provides:-
"Code Section 285: The official bonds of public officers, required by law to be filed in the office of Comptroller, Secretary of State, or Executive Department, must be filed
70

therein within- forty days after the election or appointment of such officer; all county officers shall have until the first day of January next after the election to file their several bonds as required by law."
The succeedi'ng Section, 286, further requires:-
"When any officer of whom bond is required fails to make and file the -same as prescribed in the preceding section, it is . the duty of the court, or officer in whose power it is required to be filed, at once to certify such failure to the appointing power, and to the power whose duty it may be to order an election."
Offices are vacated, under the law, among a number of causes, by failure to apply for and obtain commissions, or by failure to qualify, or give bond, or both, within the time prescribed by the laws and constitution. Code Section 264.
It was held by our Supreme Court in the 44th Georgia, Page 50l "that forfeiture of the right to the offi'ce does not result from mere failure to giye bond; it must appear that the not giving bond was by the fault or failure of the officer."
The Ordinary of Baldwin County exercised his discretion, having considered the facts in the case; and having allowed the surveyor-elect to quali'fy arid execute a satisfactory bond it would be, in my opinion, within the Executive's discretion to allow this officer, the County Surveyor of Baldwin County, to proceed with the discharge of the duties of that office.
Officers are presumed, by law, to perform their duties, and, si'nce the Ordinary of that County has acted in the manner above stated, it would be within the law for the Executive Department to consider Mr. J. A. Gladin as having properly qualified as the Surveyor of Baldwin County.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
71

WOMEN NOT DUE TO PAY POLL TAX FOR THE YEAR 1921.

September 28th, 1921. Hon. Thomas W. Hardwi'ck,
Governor of Georgia, State Capitol.
Dear Governor Hardwick: I have before me the request of Hon. A. S. Perry, of Cuthbert, communicated to you, for opinion of this office upon the following questions:-

"Will the women who register during the year 1921 be

required to pay poll tax for the year 1921 ?"



"Will women who are eligible to register during 1921, but who do not register until 1922 be required to pay poll tax for 1921 before they will be entitled to vote?"

1st: Women who register during 1921 should not be required to pay poll tax for the year 1921 ; -

"To entitle a person to register and vote at any election by the people . . . he 'shall have paid all taxes which may have been required of him . . . that he may have had an opportunity of paying agreeably to law."
Par. 3, Sedion 34, Political Code.
The poll tax returns are, by custom, made early in the year. Women were given the right of the elective franchise by an Act approved in August of thi's year. Theretofore women had not been subject to poll tax. This poll tax was not leviable upon them for the year 1921. And, therefore, women should not be required to pay poll tax as a condition precedent to registering during the year 1921.
They are in like case with a minor who is to come of age before the next election. He is allowed to register and vote without paying poll tax, for the year i'n which he registers, if he registers after any considerable portion of the year has elapsed.
2nd: Women who do not register until 1922 should not be required to pay poll tax for 1921, before so registering, for the reasons above stated.

72

In registering in 1922, in the oath stating that they had paid all taxes required of them, interli'neations or notations could be made showing 1922 poll tax excepted.
The payment of poll taxes by women in Georgia is now an obligation, not an opti9n. Everything possible should be done to facilitate and encourage the ingathering of the poll, or capitation, tax of One Dollar, which goes to the support of educati'on. There is no law requiring the payment of poll tax for a given year until toward the close of the year. Long continued custom has given the men that right, and, of course, women must be accorded the same privilege.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
COUNTY COl\11\IISSIONERS' DUTY OF LOOKING AFTER THE SOLVENCY OF BONDS OF COUNTY OFFICERS.
September 23, 1921. Hon. E. W. Marshall,
Ordinary, Eatonton, Georgia. Dear Judge: I am pleased to refer to yours of the 21st instant. The law confers all of the authority legally exercised upon the Board of County Commissioners in such counti'es as have Commissioners of Roads and Revenues, and, it follows, in my opinion that the duty of looking after the solvency of bonds of County Officers, or having such bonds strengthened when needful would devolve upon the County Commissioners. Section 1241, of the Code says:-
"In all cases where there are one or more sureties on the bond or bonds of county treasurers, tax collectors, or tax receivers shall own real estate in any county or counties other than the county in which such officers shall hold office, such bond within thirty days after execution thereof, shall be
73

recorded in the county or counties wherein such real estate is situated, by the ordinary of such counties, or if the fiscal affairs of such counties are or shall be by law committed to commissioners, such bond or bonds shall be recorded within thirty days after its execution, by such Board, in the book of record of bonds of county officers."
You will note that this section requires the Commi'ssioners to look after the bonds of county officers where the fiscal affairs of such counties have been, by law, committed to the Board of County Commissioners.
It seems to me, however, that in the fullness of caution, you might officially and in writing noti'fy the Board of Commissioners of Roads and Revenues that there is need of an investigation of the solvency of the sureties on a given bond, and probably a necessity for a strengthening of such bonds. This will, then, keep your office entirely in the clear.
With best wishes for your continued official success and your prosperity and happiness, I am,
Sincerely yours, GEO. M. NAPIER, Attorney-General.
BILL ABOLISHING CITY COUR.T OF ASHBURN HELD INOPERATIVE.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick: In reply to your favor, to which you attach letter of Judge Joe McHancock, Ordinary of Turner County, asking for opini'on, as to "the validity of the Bill abolishing the City Court of Ashburn:"
My opinion, after very careful examination of this Act, approved August 10, 1921, is that the referendum clause in the Bill is defective, and that, thereby, the entire Act is rendered ineffectual and i'noperative. The language of the Act is as follows:-
74

.
Section 4: Be it further enacted, That the provisions of this Act shall become of full force and effect when the same shall have been ratified by a majority of the qualified voters of Turner County at an election to be called by the Ordinary of Turner County for the second Wednesday in November, 1921, at which election the question of abolishing said City Court, shall be submitted to the qualified '\Toters of Turner County, and if a majority of the qualified voters of Turner County shall vote for the abolishment of said City Court at said election then the same shall be declared abolished from and after the result of said election is declared."
Without considering the omission of a provision for publishing notice of this election, so that the voters of the County could be apprised of the question to be passed upon by them, which might be done under the general statutes governing speci'al elections, the failure of the Act to provide for forms of ballots to be used, written or printed, for and against the proposition to be submitted is a fatal defect.
"A designation of the form of the ballot is to facilitate the legislative design, and to prevent possible complicati'ons arising out of the variety of modes of expression of the voters upon the subject."
It is, therefore, my opinion, that the Ordinary of Turner County, will need to await additional legislation before he can call an electi'on to legally determine whether said Court is to be abolished or retained.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
WHETHER MANDAMUS ADVISABLE IN PROCEEDING AGAINST TAX ASSESSOR OF BUTTS COUNTY.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick: Under your request, dated September lOth, to look into the matter of the failure of the
75

local Board of Tax Assessors of Butts County to levy an additional forty per cent upon the taxable values of the property of that County, as shown by the 1920 Digests, I have pretty carefully considered all the facts set out in the letter of Hon. H. J. Fullbright, State Tax Commissioner, to Your Excellency. This letter i's attached for your further information.
The decision of the Supreme Court of Georgia on this case, Ogletree et. al. vs. Woodward, Chairman Board of Tax Assessors of Butts .County, is reported in the Southeastern Reporter, page 243, and was handed down December 9th, 1920.
At page 246, Southeastern Reporter, the Court says:-
"In the present case the Board of County Tax Assessors
did not demand an arbitration, as was its right. There was no attempt to arbitrate, and :uo failure of the arbitrators to agree, as in the case of Turner vs. Wade, supra. We are not therefore, called upon to decide whether, on failure of the arbitrators to agree, the statutory requirement of the State Tax Commissioner 'shall stand affirmed' is violative of the due process clauses of either the State or Federal Constitution."
There is every reason to believe that, after mandamus is employed to compel the Local Board of Tax Assessors of Butts County to proceed to put this increase upon last year's digests, and after County Tax Officers undertake to enforce the collection of the increased taxes, a multi'tude of individual suits will result. Individual notice will be necessary to each tax-payer, and thus the way will be opened to a multiplicity of demands for arbitration, or other species of liti'gation, in which the State's officers will be involved.
Should the proceedings to collect these taxes be ineffectual, great practical harm might result, because of the tendency thereby to invite resistance in other counties in the event a similar situation should arise in them, and the breaking down of the morale of tax enforcement.
It is a practical question, it seems. We can proceed with a petition to mandamus, but cui bono? Is it best for the State, considering the virtual certainty of further litigation,
76

and its possible doubtful outcome, to proceed with fts efforts to trounce the recalcitrant Tax Assessors?
Awaiting your instructions, Respectfully and sincerely yours, GEO. M. NAPIER, Attorney-General.
HIGH SCHOOLS MAY BE ESTABLISHED BY COUNTY BOARDS OF EDUCATION.
September 30, 1921. Hon. M. L. Brittain,
State Superintendent of Schools, State Capitol.
Dear Doctor: In reply to your request for opinion as to the right of a County Board of Education to expend money for High Schools, with especi'al reference to an inquiry received from Gwinnett County:
As a matter of history and practice, High Schools have, to some extent, been favored and supported by Boards of Education for many years.
A Constitutional amendment was adopted last year authorizing the General Assembly to make such appropriations from the State funds to support High Schools in this State, as the condition of the Treasury may authori'ze.
But Section 107 of the School Code of 1921 reads:
"The Board of Education of any County or Municipality shall have the right to establish one or more High Schools, or Junior High Schools, as, in their opinion, may be necessary, and may be possible through local taxation funds."
The money arising from taxation, imposed either by elective consent, of the people of a county, or municipality, or from tax imposed by county authorities in accordance with the recommendation" of the County Board of Education, or from both sources, would be avai1able to the extent deemed advisable in the judgment of the Board of Education of the
77

County, or of the municipality to be served by such High
School. In providing educational facilities for the children and
youth of our State, there has been evidence of growing liberality, both as to the provisi'on of means and the disposition of the funds raised.
Sincerely yours, GEO. M. NAPIER, Attorney-General.

VACANCIES IN THE OFFICE OF TAX RECEIVER ARE HANDLED AS IN THE CASE OF CLERKS OF SUPERIOR COURT.

October 1, 1921. Ron. C. R. Tondee,
Ordinary, Ellaville, Georgia. Dear Judge Tondee: Replying to yours of the 22nd ultimo, wherein you ask complete advice as to proceedings in your County, where your Tax Receiver has di'ed, I beg to say, first:As to the election of his successor. Vacancies in the office of Tax Receivers are handled as in the case of Clerks of the Superior Court. Section 4881 of the Code provides:-

"If a vacancy occurs (or will shortly occur), the Ordinary of the County where it happens shall give notice in one or more of the public gazettes of said County (if any), and at the court house, and at three or more of the most public places of said county, twenty days previously to the day of the election, which shall be appointed by him."
Section 4886 also provides:-

"When a vacancy occurs, and it is not more than six months

from the time of the election can be appointed by the Ordi-

nary and held until the existing term will expire, the person

or persons appointed shall discharge the duties of the office

for the balance of the term, and there shall be no special

election."



Therefore, you have authority to appoint some qualified person to discharge the duties of Tax Recei'ver, as you

78

will see clearly is provided for in Section 4886 of the Code, and, as early as convenient, you may designate a day on which a speci~l election will be held for Tax Receiver called after twenty days' notice, as provided in Section 4881, above quoted.
There is now nothi'ng to prevent women from being elected to the office of Tax Receiver in the State of Georgia.
As to the digest, I take it that the person whom you appoint to fill the vacancy will be the proper one to sign the digest, upon the evidence obtainable that they have been correctly made up.
Respectfully yours, GEO. M. NAPIER, Attorney-General.
FEMALES SUBJECT TO SAME REQUIREMENT AS MALES, AS TO VOTING.
October 1, 1921. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick: Replying to questi'ons asked by Mr. W. H. Williford, of Rockledge, Georgia, to-wit:-
"Is it law for women to register in a county six months before the election to become legal voters?"
"Can they vote in a town election before they register with the County authorities?"
Replying to the above : Women are subject to exactly the same requirements as men, with reference to qualifying as voters. Every step toward having their names entered on voters' and registration lists must be taken for \the women voters, just the same as for the male voters. By complying with the municipal requirements as to reg-
79

istration, etc., they would be entitled to vote in City and Town elections.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
EXPENSES OF JUDGES APPPOINTED TO HEAR CASES IN SUPREME COURT PAYABLE BY THE STATE.
October 1, 1921. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick : In re: Payment of expenses of Superior Court Judges assigned to service on the Supreme Court of Georgia.
Replying to your favor of even date herewith, I beg to say that:
In my opinion, it is entirely proper for the Governor to pay the expenses of Judges Peter W. Meldrim, and Moses Wright, on account of the~r recent attendance upon the bench of the Supreme Court of Georgia. Not only does the Executive construction and practice in this State authoriz;e the payment of such expenses by the State, but the general principles of law hold that where a public officer, i"n the due performance of his duty, is required to incur expenses on the public account not covered by his salary, or commission, the reasonable and proper amount thereof forms a legitimate account against the public, for which he should be reimbursed.
That is exactly the case of one of the Superi"or Court . Judges assigned by the Governor to service on the Supreme
. 80

,
Court of the State, when any of the Judges of that Court are disqualified.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.

ACT ABOLISHING SCHOOL SYSTEM, CITY OF TENNILLE, DEPENDENT ON REFERENDUM.

October 3, 1921.

Hon. Thomas W. Hardwick,

Governor of Georgia,

State Capitol.

Dear Governor Hardwick: Replying to your request for

opinion as to the status and effect of the Act of the General

Assembly abolishing the present school system of the City of Tennille, Georgia:

I fi'nd that this bill was approved officially by Your Ex-

cellency on August 15, 1921.



There is a proviso that the Bill shall not become effective until and unless the Act abolishing this school system shall be approved by a majority of the qualified voters, voting in

a special election to be held in the City of Tennille on the

first Wednesday in June, 1922.

The operati'on of said school system, therefore, will con-

timie undisturbed until the same may be abolished as a re-

sult of said special election to be held next summer.

Respectfully submitted,

GEO. M. NAPIER,

Attorney-General.

81

TERM OF JUDGE W. T. TOWNSEND.
October 4, 1921. Ron. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick: Replying to y.our request for an opinion as to the beginning and expiration of the term of offi'ce of Judge William T. Townsend, newly appointed to the position of Judge of the City Court of Cartersville:
The records show that from the creation of the office the term of the Judge expired on October nineteenth of each quadrennium. The term of Judge George H. Aubrey, of this Court, is fixed in his second and last commission as beginning October 9th, 1917, and expiring October 9th, 1921. However, his former term ended on October 19, 1917, and, therefore, his second term ran four years from the nineteenth day of October, 1917.
The law holds that it i~ not within the power of the Executive to shorten or extend a term of office by appointment. The discrepancy referred to should be attributed merely to clerical oversight or mistake. In my opini'on Judge Townsend's term, therefore, legally begins October 19, 1921, and should extend to October 19th, 1925.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
WHAT FEES ALLOWED SOLICITOR-GENERAL IN SPECIAL CASES.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick: In reply to your request for advice as to what fees the law allows in a case presented
82

by the petition of Solictor-General R. S. Foy, of the Tifton Judicial Circui't, I find that:
It is provided in Section 1126 of the Penal Code of Georgia that Solictors-General are allowed fees;-

"For services in cases mentioned, where the State is an

interested party, at the discretion of the Governor, not ex-

ceeding $50."



In the same section it is provided that fees in the Supreme Court are, in capital cases $50.00; other felonies $30.00; all other cases $15.00.
The law further provides in Secti'on 1128 of the Penal Code that:-

The fees of Solictors-General, for services rendered in the Supreme Court, shall be paid by the State on the warrant of the Governor. In all cases when the Solicitor shall present the certificate of the Clerk of the Supreme Court as to services, and of the Clerk of the Superior Court to the fact that the defendant was acquitted, or unable to pay costs."
The petitioner has furnished in proper form the certifi-
cate of the presiding judge that his services are properly and faithfully claimed, and it is probably not absolutely necessary to have a certificate from the Clerk of the Supreme Court. This certi'ficate of the Clerk of the Supreme
Court is essential before the warrant of the Governor is paid in all criminal cases in which the Solictor-General appears before the Supreme Court. I would deem it to be complete, however, if your Excellency should name a fee in this case, that the Clerk of the Supreme Court should be requested to certify that the services named in the petiti'on were performed in the Supreme Court, and that such certificate should be attached to the warrant issued. This seems to cover the law applicable in this situation.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.

83

LIBERTY BONDS LEFT WITH BANK FOR SAFE KEEPING AND BANK FAILS, BONDS WOULD BE PAID UNDER SUB~SEC TION 5, OF SECTION 19, OF THE BANKING LAW OF GEORGIA.
October 6, 1921. Hon. T. R. Bennett,
Superintendent of Banks, State Capitol.
Dear Sir: In compliance wrth your verbal request_ of this date, in regard to whether or not Liberty Bonds, when left for safe-keeping, or for conversion, and the cashier gives his reecipt for same, would be paid as preferred claims in the case of a defunct bank? I beg to submit the following:-
Section 3494 Park's Annotated Code reads as follows:-
When chattels are delivered by one person to another to keep for the use of the bailor, it is called a deposit. The depositary may undertake to keep it without reward, or gratuitously; it is then a naked deposit. If he receives or expects a reward or hire, he is then a depositary for hire;-very variant consequences follow the difference in the contract.
Section 3496 Park's Annotated Code reads as follows:-
Deposits of money in a bank do not constitute a case of naked deposit, the use of the money being a valuable consideration. A special deposit of a sealed package of money would be a naked deposit.
In view' of the above Code sections, rt is my opinion that one leaving Liberty Bonds for safe-keeping at a bank, it would constitute a gratuitously bailment, and if the bank should become defunct these Liberty Bond claims would be paid "Under sub-section 5 of Section 19 of the Banking Law of Georgia.
Trusting that the above gives you the fnformation desired, I beg to remain,
Yours very truly, SEWARD M. SMITH,
Assistant Attorney-General.
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.
LAW ALLOWS FEE TO SHERIFF FOR RECEIVING AND DISCHARGING PRISONER ONE Tll\IE ONLY ON SAME CHARGE.
October 7, 1921.
Hon. Thomas W. Hardwick,
Governor of Georgia,
State Capitol.
Dear Governor Hardwick: Replying to your request for opinion for Honorable U. R. Jenkins, Ordinary of Johnson County, as to the fees a jailor is entitled to for turning keys on prisoner, I have investigated the law, and find as follows:-
The Act of 1875, page 22, reads:-
"Be it enacted by the General Assembly of the State of Georgia, That from and after the passage of this Act, Section 3698 of the Code of 1873, relating to the fees of jailer, the words therein, 'for turning the key, or discharging the prisoner by virtue of ,habeas corpus, by order of the Court, Judge or Justice,' shall be construed as follows: That the jailer is allowed sixty cents for turning key when he receives the prisoner, and wh.en he brings him or them before the court for trial, and said prisoner has been tried, but in no way shall he receive any fees for turning keys more than once for a prisoner; that is to say, only for turning the key when he receives the prisoner, and when he finally discharges him."
In the case of Clark, Treasurer, vs. Clark, Sheriff, from Richmond County, the Supreme Court held :-
"Penal Co"de (1895) Section 1107; (1910) Section 1134, in setting forth in the fee bill the fees or costs to be paid Sheriffs for specified services in criminal cases, and fixing the amounts to be paid in each case, provides that: The Sheriffs are entitled to the following fees, to-wit:-
''For conducting a prisoner before a Judge or Court or to and from jail, $1.25. This provision of the statute means that the Sheriff shall be entitled to $1.25 for conducting a prisoner before a Judge or Court to and from jail one time; that is, for conducting a prisoner from jail before a Judge or Court and returning him to jail, a Sheriff is only entitled to $1.25 for the whole service. The ruling in Sapp vs. Rozar, 70 Ga. 722, holds nothing to the contrary. The record in that case was on file in the clerk's office of this Court, shows that in that case the Sheriff was endeavoring by mandamus to collect the sum of sixty cents for each time he turned the
85

key of the jail on a prisoner. The holding in that case was to the effect that the Sheriff could only charge sixty cents for turning the key on the prisoner when he was received, and sixty cents for turning the key on the prisoner when he was finally discharged. In this connection see an Act of the General Assembly, approved March 2, 1875."
Clark vs. Clark, 137th Ga. 190.
The principle was set out in a decision by Chief Justice Jackson in 1883:-
"A sheriff is only entitled to be paid once for bringing a prisoner confined in jail into Court for trial, and once for returning him.' He cannot claim a fee for each time he may conduct him to and from the jail pending his trial. Code Section 3696; Acts 1880-1, Page 90."
Sapp, Sheriff vs. Rozar, Ordinary, 70 Ga. 22.
My opinion is, therefore, that a sheriff can legally be allowed fee for receiving and discharging a prisoner one time only (on the same charge), no matter how many times the prisoner may be bonded out and returned to the custody of the Sheriff before the prisoner is finally discharged.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
DISCRETION OF GOVERNOR AS TO SUFFICIENCY OF INDICTMENT IN DEMANDING EXTRADITION.
October 20, 1921. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor: In re: Extradition of John D. Walker.
Attention was given thi"s matter immediately upon receipt of your letter yesterday, and we have reviewed the authorities cited on memoranda of opposing counsel, besides others found in our research.
86

,
You say: "Two points are at issue:-
1: Is the indictment against Walker void?
2: If the indictment is void, should I, as Governor, ask
for Walker's extradition from Texas?"
.First: The weight of authority, as. we find it, is that
the indictment is not void.
The indictment is attacked, as being void, because, as
alleged, the United States Courts have exclusive jurisdic-
ti'on.
In the case of William Ross vs. the State of Georgia, it
was held by ur own Supreme Court:-
"By the 629th Section, it is declared that the Circuit Courts of the United States shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where it is or may be otherwise provided by law, and concurrent jurisdiction with the district courts of crimes ana offenses cognizable therein."
"By Section 5209, Title, National Banks, it is provided that 'every president, director, cashier, teller, clerk or agent of any Association who embezzles, abstracts or wilfully misapplies any of the moneys, funds or credits, of the association;
. . . or who makes any false entry in any book, report or statement of the Association, with intent, in either case, to injure or defraud the Association or any other company, body politic or corporate or any individual person, or to deceive any officer of the Association, or any agent appointed ~o examine the affairs of such Association, and every person, who, with like intent aids or abets any officer, clerk or agent in any violation of this Section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years, nor more than ten."
"Section 5328. Nothing in this title (Crimes) shall be held to take away or impair the jurisdiction of the Courts of the several States under the laws thereof."
U. S. Reports, 155, Page 92.
"Such institutions not only do business in the State, are protected by the authority of the State, have access to the Courts of the State, but are created .by its laws, and its business is regulated by legislative enactments of the State; but it is not to be held that, while organized under the laws of the general government, national banking associations are foreign corporations, nor, in their capacity as persons, are aliens; on the contrary, such Associations are established and located, under the law of their creation, at a certain given locality in one 'of the States or other. political divisions of the United States, and such place or point is distinctly named in the certificate of organization (1 National Bank Cas. 161;
87



6 Blass, 26); and for jurisdictional purposes, they are to be treated as citizens of the State within which they are located.
"Such associations are not otherwise citizens of the United States. 2 Abb. (U. S.) 232; 8 Blatch. (U. S.) 137; 6 Peters 761. Indeed the business of a national banking associatiOll must be done at this designated location, and it cannot lawfully do business, such as cashing cheques drawn upon it elsewhere. 38 Fed. Rep. 883. So that, equally with Sta:te banks, national banks are citizens of the State in which they are located, in the sense that corporations are citizens; and this result follows from the act which creates such association."
Linton vs. Childs, 105 Ga. 569-10.
And;-

"The fact that a person who has stolen property belong-

ing to a national bank is an officer of the bank and subject

to punishment for embezzlement under the' U. S. St. of 1864,

c. 106, No. 55, does not relieve him from his liability to pun-

ishment for the same act as larceny at common law or under

the statutes of a state."



Commonwealth vs. Joseph T. Barry, 116 Mass. Rep. 1.

And;-

"52. Prosecutions in State Courts. An indictment under State law for forgery committed for the purpose of deceiving the bank examiner is triable in the State court, and it is no objection to the jurisdiction of the State courts that the offense was a violation of the national banking law, and that
the offender is subject to punishment for both crimes." Cross vs. State (1889) 10 Sup. Ct. 47, 132 U. S. 131, 33 L. Ed. 287."

"Where Congress has prescribed the punishment only where an officer of a national bank embezzles property of the bank, a State legislature may prescribe the punishment where the property embezzled is deposited in the bank, and belongs to the depositor. State vs. Tuller (1867) 34 Conn.
280."

"Gen. St. Conn. tit. 12, No. 191, prescribing the punishment where an officer of any bank incorporated by authority in the State embezzled any property deposited in the bank applies to tellers of national banks doing business within the
State, Id."

"Upon trial of the defendant for forgery it appeared that .<,\

draft was drawn by one national bank upon another, that de-

fendant was a bookkeeper in the bank, and without authority

filled a draft signed in blank by the assisting cashier, issued

it and crime.

fraudulentl Held that

y t

h

ch e

anged punish

m1hiesn

b t

ook of

t

entries he crim

t e

o cover was wi

the thin

the jurisdiction of the State courts, notwithstanding this

Section and Act March 3rd, 1875, which provides that the

88

Circuit Courts of the United States shall have exclusive cog nizance of all causes and offenses cognizable under the au-
thor of the United States, except as otherwise provided by law. Hoke vs. People (1887) 122 Ill. 511, 13 N. E. 823."
9 U. S. Compiled Statutes, p. 11984.
Second: As to the propriety of the Governor asking ex-
tradition, even if the indictment is held to be void.
Inasmuch as the Act of the Governor on whom a demand
for extradition is made is merely ministeri'al, the discretion
which can and should be exercised is confided to the Gov-
ernor of the demanding State. Therefore, where an indict-
ment is, on its face, absolutely void, the Governor of the,
demanding State would be clearly within his discretion to
refuse to order extradition of the alleged offender:-
"Whether in fact the act is a crime is often one of the questions to 'be tried, and it can only be finally and conclusively determined in the courts of the demanding State. It is consequently held that the accusation on which the requisition is based will not be scrutinized with technical accuracy. If it charges a crime substantially,- the determination of its technicalsufficiency as a pleading must be referred to the courts of the demanding State."
Hawley's Interstate Extradition, pp. 34, 35.
No. 374. Will not usurp function of Examining Magistrate. While the executive possesses the power to look into proceedings before the examining magistrate and to disregard his commitment, if it should be deemed to be unwarranted, this power will not be exercised so as to supers!!de the examination and decision by the courts of matters which are properly subjects for the consideration and determination of the judicial branch of the Government on writs of habeas corpus and certiorari. The inquiry of the executive is untechnical, and is directed to the determination of the broad question whether upon the merits such a case has been made 'out as to require the surrender of the accused under the treaty."
Moore on Extradition. Vol. 1, Sec. 374, p. 570.
"Sec. 3. Discretion of the demanding executive. Whether the executive of a State or territory shall actually make a demand upon the executive authority of another State or territory, for the delivery of a fugitive criminal, is a question which both the Constitution and the law of Congress leave to his discretion. Neither imposes it upon him as a duty in any case. What they do is to secure the right and specify certain conditions in respect to the manner in which it shall be exercised, and then leave every executive to de-
89

termine for himself whether. the right shall be exercisd or.

not."



.

Spear on the Law of Extradition, Section 3, p. 402.

This matter resolves itself to the question whether the indictment in the case is void. The trend of authorities is to the effect that should the executive of the demanding State have doubt of the validi'ty and legality of the indictment, he will, nevertheless, request the return of the offender, and let the courts pass upon technical questions of law. However, it is within the discretion of the Governor, of the demanding State, to pass primarily upon the sufficiency of the proceedings, including the indi'ctment; and the Courts have no power to control or inquire into the exerci'se of his discretion.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.

CONVICTS RECORD MUST SHOW THAT HIS CONDUCT HAS BEEN GOOD IN ORDER TO ENTITLE HIM TO HAVE HIS TIME OF SERVICE SHORTENED.

October 28, 1921. Hon. S. L. Wilkes, Ordinary,
Lincolnton, Georgia. Dear Judge: Am in receipt of yours, raising the question whether misdemeanor convicts who are allowed to go on probation, after having been sentenced to serve on the chaingang, but whose paroles are revoked after a certain part of their terms have elapsed, are entitled to deduction of four days time in each month for good behavior. The statute allowing the diminution of the time of penal servi'ce provides that the daily record kept of the misdemeanor convict's conduct shall show that his conduct has been good, in order to entitle him to have his time of service shortened four days in each month.
90

.
Reasoning by analogy, it might be held consistently that the probationer would be entitled to have his time shortened if his record for good behavi'or is clear; but, on the other hand, should the probation officer re-deliver the convict to the authorities because of unfaithfulness, or bad conduct, the convict would then not be entitled to any "good time."
The Act creating the plan of probating convicts is silent as to the shortening of the term of convicts, when out on probati'on, but, the foregoing is a reasonable construction which might be followed until the Legislature establishes a rule in such cases.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
BANK BORROWING MONEY FROM WAR FINANCE CORPORA TION AND BECOMING INSOLVENT, THE EXISTING DEBT WOULD BE PAYABLE AS PROVIDED IN SECTION 19 OF ARTICLE 7 OF THE BANKING LAW OF THIS STATE.
October 28, 1921. Hon. T. R. Bennett,
Superintendent of Banks,. State Capitol.
My D~ar Sir: Your letter to hand, in which you ask whether, if State Banks and Trust Companies ask loans under Section 24, of the War Finance Corporation Act, your Department "shall regard these obligations as coming under sub-section 3, Section 19, of Article 7 of the Banking Act, approved August 16, 1919, in case of insolvency of any borrowing bank.
The War Finance Corporation is an agency of the United States Government specifically created to effectuate certain
91

financial functioning. The money _used is money of the United States.
In my opinion, should any Bank or Trust Company of this State secure a loan from the War Finance Corporation and become insolvent, the existing debt would be payable as provided in Section 19 of Article 7, of the Banking Law of this State; that is to say, the indebtedness of such insolvent institution .would be discharged in this order:
1st: Debts due the State of Georgia. 2nd: Debts due any County, district or municipality of the State, includi'ng unpaid taxes. 3rd. Debts due the United States.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
t'UNISHMENT FOR FAILURE TO SEND CHILD TO SCHOOL.
November 1, 1921. Hon. M. L. Brittain,
State Superintendent of Schools, State Capitol.
Dear Sir: In response to the following inquiry:-
"In case a parent fails to send a child to school after having been duly notified and the said parent has been fined $10, by the Board of Education, and the parent refuses to pay, and also refuses to send the child to school, what steps are to be taken, under the compulsory law, and before what court is the case to be tried?"
Upon investigation of the law, we find that Section 171 of the School Code Provides : -
"Every parent, guardian or other person having charge and control of a child between the ages of eight and fourteen years, who is not exempted or excused as hereinafter provided, shall cause said child to be enrolled in and to attend continuously for six months of each year a public school of the district or of the city or town in which the child resides, which period of attendance shall commence at the beginning of the first term of said school in the year."
92

. Section 172 of said Code reads :-
"Any parent, guardian or other person who has charge and control of a child between the ages aforesaid, and who wilfully fails to comply with the foregoing requirements shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not to exceed ten dollars for the first offense, and not to exceed twenty dollars for each subsequent offense, said fines to include all costs; but the court trying the case may, in its discretion, suspend enforcement of the punishment, if the child be immediately placed in attendance at a school as aforesaid, and may finally remit the f.ame, if such attendance has continued regularly for the number of months hereinbefore prescribed for attendance."
An indictment would be necessary. in prosecuting this offense, except in cases where indictment would be waived; and, therefore, information to the Grand Jury and hearing before the Superior Court of the County where the offender lives would be necessary.
Respectfully submi'tted, GEO. M. NAPIER, Attorney-General.
OSTEOPATH NOT AUTHORIZED TO PRESCRIBE NARCOTIC DRUGS.
November 1, 1921.
Doctor T. F. Abercrombie, Secretary State Board of Health, .State Capitol.
Dear Doctor: In response to your verbal request for opinion as to whether osteopaths have the right, under the laws of the State of Georgia, to furnish prescriptions for narcotic drugs, I beg to say:
1st: Under the laws of th~ State osteopathy is considered to be a non-drug giving school of medical practice; and an osteopath is deemed to be one who can diagnose, treat or prescribe for any human di'sease, deformity, pain, injury, or physical condition without the use of drugs.
Supplement Civil Code Sections 1735, 1738.
93

The provisions of these Sections do not apply to those practicing their profession as licensed physicians, or to any one followi'ng in his or her practice the orders of licensed drug-giving physicians.

2nd: Osteopathy consists principally in rubbing, pulling,

kneading, with the hands and fingers certain portions of the human body, and in manipulating and flexing the li'mbs of. those afflicted with disease.

It teaches neither therapeutics, materia medica, nor surgery. It ignores bacteriology and depends entirely on manipulating the body for curing or ameliorating di'seased conditions of the human system. The theory of this science is that numbers of ailments are due to imperfect circulation and irregular nervous action, and that by manipulation without the ai'd of medicines or drugs, its practitioners may assist and enable nature to right the diseased condition and remedy the evil. It, therefore, administers no drugs and it "waives the knife" in favor of other votaries of the art of healing.

It is my opinion that osteopaths are not authorized to

prescribe narcoti'c drugs. This would be allowing them to

invade the province, dangerous to humanity, of putting it in

the power of addicts and others, to obtain poisons, and other

powerful drugs. And this, it clearly appears, was not con-

templated by the statutes.

'

Respectfully submitted,

GEO. M. NAPIER,

Attorney-General.

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,
BANKING LAW CONTEMPLATES THE LEVYING OF A FULL 100% ASSESSMENT UPON BANK STOCKHOLDERS, IF SUCH AMOUNT IS NEEDED TO COVER DEPOSITS IN THE BANK.
November 4, 1921. Hon. T. R. Bennett,
Superintendent of Banks, State Capitol.
Dear Sir: You ask for opinion as follows:-
"Referring to Section 1, Article 18 of the Banking Act, approved August 16, 1919, I should like to have your opinion as to whether or not full assessment of 100 per cent on the stockholders of a bank may be issued by this Department, if, in its opinion such whole assessment is necessary in order to collect from solvent stockholders sufficient amount to cover deposits.
"Or, in other words, may we make 100 percent assessments on a bank of $15,000 capital in order to collect sufficient amount from solvent stockholders to pay $46,000 of deposits in such bank?"
1st. In my opini'on, the law contemplates the levying of a full one hundred percent assessJ11ent upon bank stockholders, if such amount is needed to cover deposits in the bank.
2nd. The statute provides that "the par value of each share of stock shall be $100." The par value is, of course, the face value. If but sixty per cent of the face value has been paid in, the stockholder would be liable for the balance of his subscription on the stock.
3rd. The stockholders of a bank of $15,000 capital would be subject to an assessment of one hundred per cent of the face value of their stock, if that amount should be required to make good the deposits i'n the bank.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
95

TAXATION OF PROPERTY IN SCHOOL DISTRICTS IS APPLIED FOR MAINTAINING AND NOT FOR BUILDING SCHOOL HOUSES.
November 4, 1921. Hon. W. A. James,
Supt. Polk County Schools, Cedartown, Georgia.
Dear Sir: In reply to your letter, which is as follows:-
"My Board requests me to write you for an opinion on the latter part of Section 84 of the School Code, which reads as follows: 'In respect to the building of school houses, the said Board of Education may provide for the same either by labor on the part of the citizens of the sub-districts, or by a tax on their property.' We wish to know if we have the right to bpild schoolhouses by taxing the sub-districts.''
I beg to say: It seems to me that so far as is known no power of taxation has been put into effect by County Boards of Education, under the provisions of this section.
The taxation of property in school districts i's applied for maintaining and not for building school houses.
The use of voluntary labor by citizens of a sub-district would be an available, and very valuable support in repairing, or even in buildi'ng school houses. But an effort to impose a tax by the Board, in order to provide funds for a school building would tend in the direction of "taxation without representation."
It is in conflict with the spiri't of the statute providing for an additional levy of taxation amounting to five mills when voted in any district by a two-thirds majority of the citizens thereof.
In my opini'on, you would meet with legal difficulties in trying to enforce the collection of an arbitrary amount of taxation upon the property of citizens in a sub-district.
Houses should, of course, be built, in order to open the door of opportunity to acquire knowledge to every child in our State, and, if the citizens of the Di'strict needing repairs on its present building, or a new building, are moved by
96

,
such a deep desire to furnish such an opportunity to their children, it will accomplish great results. I would not advise the enforcement of taxation under the section referred to.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
STATE BOARD OF HEALTH EMPOWERED TO MAKE RULES AND SUMMONS PERSONS TO APPEAR BEFORE VENEREAL CLINIC.
November 16, 1921. Doctor Joe P. Bowdoin,
Health Department, Capitol Annex, Atlanta, Ga.
Dear Sir: Your letter is to hand, wherein you ask opinion as to proper method of summoning persons to appear before venereal clinics for examination, under the provisions of the law for the treatment and prevention of venereal disease.
An examination of the statute shows that the State Board of Health is empowered and directed to make rules and regulations for the carrying out of the purposes of this Act. Section 6 of this Act .(Acts 1918), Page 277, provides:--:-
"Any person who shall violate any of the provisions of this Act, or any lawful rule or regulation made by the State Board of He.alth pursuant to the authority herein granted by any other statute law, or who shall fail or refuse to obey any lawful order issued by any State, County or Municipal Health Officer pursuant to the authority granted in this Act, or any other Act or the regulations prescribed thereunder, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished as provided in Section 1065 of the Code of Georgia of 1910."
For the purpose of making a summons to appear a "lawful order issued," and in order to keep a record thereof, the Municipal Health Officer might have his deputies supplied with printed summonses to appear before the venereal clinic, such orders to be duly signed by the Municipal Health Offi~
97

cer, for persons within his local ju!isdiction, leaving the time and place to be filled in by the Deputy at the time the summons is served.
A rule providi'ng for this procedure would make such orders, or summonses lawful, and would be as expeditious virtually as the giving of a mere verbal notice to appear.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
FACE VALUE OF BANK STOCK IS THE PAR VALUE.
November 18, 1921. Hon. T. R. Bennett,
Superintendent of Banks, State Capitol.
Dear Sir: This will serve to acknowledge receipt of your letter, in which you say:-
"In order that we may know the proper procedure in assessing ~tockholders of banks, organized under laws prior to enactment of the Act approved August 16, 1920, and what amount we may assess?
"First. In banks closed by this D'epartment for liquidation under Article 7, showing $15,000 capital paid in by issue of one hundred and fifty shares at the par value of $100 per share.
"Second. Banks that have issued two hundred and fifty shares, and have paid in sixty dollars per share."
"Third. Banks which have issued one hundred and fifty shares at $100 per share, and one hundred shares at $60 per share paid in.
"Fourth. Also, I should like to have your opinion as to whether or not banks operating with authorized capital of $25,000, and paid in $15,000, can be required by this Department to pay in the $10,000, in accordance with charter; and, if not, can we require that charter be amended to conform to
the new law?"
Our Supreme Court, in the 147th Georgia, Page 553, i'n the case of: Crawford vs. Swicord, held as follows:-
98

,
"We, therefore, conclude that a proper and reasonable construction of the provisions of Section 2270, supra, in so far as the construction of the section is involved in the question her.e presented, is as follows: (1) Said corporation is liable (a) to creditors, for the debts of the corporation, to the extent of his unpaid shares of stock; and (b) to depositors in an amount equal to the face value of his stock. Of course, the stockholders are liable equally and ratably, and not one for another as sureties."
It is my opinion:-
First: In the case of a Bank, organized since 1893, having a nominal capital of $25,000, but with only $15,000 actually paid in, you have the right to assess the stockholders the entire $10,000 unpaid, for creditors; and, in addition, the face value of the stock, for the depositors of the bank.
Second: You would be authorized to assess $40 per share, on which but $60 had been paid, provided the par value of the stock was $100 per share, and to levy an additional $100, on each share of stock, if that amount is needed to pay depositors.
Third: This is answered by the answer to number two above.
Fourth: In my opinion, such a bank as named in your fourth inqui'ry can, by your Department, be required to pay in the $10,000 remaining unpaid of the $25,000, named by its charter, if the entire $25,000 had been subscribed for. If not subscribed for, the charter could be amended, making the capital $15,000.
Fifth: I have had some doubt as to the exact meaning of "face" value, as applicable to banks, under certain conditions. The weight of authority is to the effect that the face value is the par value as shown by the certificate of stock, and as authorized by and named in the charter of the bank. A mere notation written or stamped on the certificate "only $60.00 paid in" would not be held by the courts to make the "face value" of the certificate of stock $60.00, where creditors and depositors are concerned.
The rule, as announced above, would remain effective, and the $40.00 per s~are would be assessable upon such
99

stock, and the holder of such stock would be liable to pay $100, on each share of stock held by him, or so much thereof as would be necessary to protect depositors of. the bank against loss.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
STOCKHOLDERS OF BANK LIABLE FOR FULL ASSESSMENT.
November 18, 1921. Hon. T. R. Bennett,
Superintendent of Banks, Dear Sir: This wiil serve to acknowledge receipt of your letter, in which you say:-
"In order that we may know the proper procedure in assessing stockholders of banks, organized under laws prior to enactment of the Act approved August 16, 1920, and what amount may we assess?"
"First: In banks closed by this Department for liquidation under Article 7, showing $15,000 capital paid in by issue of one hundred and fifty shares at the par value of $100 per share?
"Second: Banks that have issued two hundred and fifty shares, and have paid in sixty dollars per share?
"Third: Banks which have issued one hundred and fifty shares at $100 per share, and one hundred shares at $60 per share paid in ?
"Fourth: Also, I should like to have your opinion as to whether or not banks operating with authorized capital of $25,000, and paid in $15,000, can be required by this Department to pay in the $10,000, in accordance with charter; and, if not, can we require that charter be amended to conform to the new law?"
Our Supreme Court, in the 147th Georgia, Page 553, in the case of: Crawford vs. Swicord, held as follows:---,-
"We, therefore, conclude that a proper and reasonable construction of the provisions of Section 2270, supra, in so far as the construction of the Section is involved in the question here presented, is as follows: (1) Said corporation is liable
100

(a) to creditors, fo'r the debts of the corporation to the extent of his unpaid shares of stock; and (b) to depositors in an amount equal to the face value of his stock. Of course, the stockholders are liable equally and ratably, and not one for another as sureties."
It is my opinion :-
First: In the case of a bank, organized since 1893, having a nomi'nal capital of $25,000, but with only $15,000 actually paid in, you would have the rightl to assess the stockholders the entire $10,000 unpaid, fm: creditors; and, in addition, the face value of the stock, for the depositors of the bank.
Second: You would be authorized to assess $40 per share, on which but $60 had been paid, provided the par value of the stock was $100 per share, and to levy an additional $100, on each share of stock, if that amount i's needed to pay depositors.
Third: This is answered by the answer to number two above.
Fourth: In tny opinion, such a bank as named in your fourth inquiry can, by your Department, be required to pay in the $10,000, remaining unpaid of the $25,000, named by its charter, if the entire $25,000 had been subscribde for. If not subscribed for, the charter could be amended, making the capital $15,000.
Fifth: I have had some doubt as to the exact meaning of "face" value, as applicable to banks, under certain conditions. The weight of authority is to the effect that the face value is the par value as shown by the certificate of stock, and as authorized by and named i'n the charter of the bank. A mere notation written or stamped on the certificate "only $60.00 paid in" would not be held by the Courts to make the "face value" of the certificate of stock $60.00, where creditors and depositors are concerned.
The rule, as announced above, would remain effective, and the $40.00 per share would be assessable upon such stock, and the holder of such stock would be liable to pay

$100, on each share of stock held by him, or so much thereof as would be necessary to protect depositors of the bank against loss.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
STOCK IN CORPORATION SUBJECT TO TAXATION.
November 18, 1921. Hon. William A, Wri'ght,
Comptroller-General, State Capitol.
Dear Sir: Your letter of the 18th, enclosing letter of Mr. R. C. Brooks, received and contents noted.
Mr. Brooks asks the question whether or not stock in a foreign corporation, with most of its property located in Georgia, and said stock being held by a resident of Georgia, would be subject to taxati'on.
Our Constitution provides that taxation in this State shall be ad valorem on all property subject to be taxed within the territorial limits of the State of Georgia:
Code Section 6553. "All property of every nature whatsoever" is required to be taxed, unless such as the Constitution speci'ally authorizes the legislature to exempt:-
125th Ga. Reports, Page 589. Section 1087 of the Code requires each taxpayer to answer, among many other questions, the following: "The amount of capital invested in stocks of companies other than such companies as are required to be returned by the Presidents or their Agents to the _Comptroller-General." The company mentioned in Mr. Brooks' letter would not have to make such returns to the Comptroller-General of this State; hence, the stock held by residents in thi's State
102

would be subject to taxation, even if the company pays tax on it in another State.
Trusting that the above covers your inqpiry, I am, Sincerely yours, SEWARD M. SMITH, Assistant Attorney-General.
THE STATE AN INTERESTED PARTY TO LITIGATION.
November 25, 1921. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick: Honorable Joe M. Lang, Solicitor-General, Cherokee Ci'rcuit, refers a matter to me verbally suggesting that he obtain my opinion on same in the case of:-
W. A. Gaines & Co., pltffs. vs. L. M. Holmes, and1 Joe .M. La,ng. In the Superior Court of Dade County, an effort was made by process of Injunction to restrain Holmes, Sheriff, and Lang, Solicitor-General, from proceeding to destroy 2,100 gallons of whiskey seized by Holmes, Sheriff of Dade County. These officers are not named i'n the statement of the case, but are named in the body of the petition.
The intended effect of this Injunction was to restrain the State from its proceeding in another case. My conclusion, therefore, is that the State was an interested party in the litigation i'n the court below, as weli as in the hearing of this case upon appeal by Gaines & Company, Plaintiffs in Error in the Supreme 'court of this State, which appeal was argued on yesterday by Mr. Lang, who has spent several days this week working. very diligently on his brief. As I understand it, you merely want .my opinion as to
103

whether or not the State was an interested party in this case: For the reasons above stated, I conclude that the State was an interested party.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
R.N. BERRIEN HELD TO BE AGENT OF THE STATE IN DISCOUNTING SCHOOL WARRANTS.
November 25, 1921. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick: This acknowledges receipt of your favor of 23rd instant, to which was attached original letter of Hon. M. L. Brittain, State Superintendent of Schools, with certain inclosures therein stated; and copy of your reply to letter of Supt. Brittain.
Your letter, and its inclosures, raise the question:In the event loss is sustained by the apparent conversion of certain State School Warrants by R.N. Berrien and Company, upon whom will the loss fall, the State, or the County or ;School system in whose favor the respective warrants were issued? 1st. The Act of the General Assembly, approved August 13, 1915 (See Acts 1915, Page 56), provide, as follows:-
"That for the purpose of anticipating collection of taxes of the current year, the Governor shall be and he is hereby authorized to draw his warrant, at the end of each and every month during the current year, in favor of the State School Supt., or of the several counties school Supts., and Treasurers of local school systems in the discretion of the State Board of Education, for such amount or amounts as are then due the teachers. Said warrants shall be drawn on the funds appropriated by the legislature for the current year, and shall not exceed in the aggregate amount the appropriation for the
104

public schools so made for that year. The honor of the State is hereby pl~dged to the payment thereof.
"That it shall be lawful to sell at discount said warrants to any person, bank, or banking institution, the said sale to be made at the lowest possible rate of discount."
My investigation shows that, when ready to make the first sale of the warrants authori'zed in this Act, a conference of certain officials of the State, and others interested, was called by the Governor of the State. A plan was then agreed upon, by which the State Superintendent of Schools should forward the warrant issued in favor of a County, or of a school system to the proper educational officer thereof, in order that the warrant might be indorsed, and by such officer returned to the State Superintendent. The warrants upon return to the State Department of Education were then listed by amount, number, county and city, and presented to the Banking concern authori"zed to receive and discount them, by which banking concern the cheques were sent out to the Superintendent and Treasurers. The proceeds of the warrants so discounted to be by the Bank or Broker handling the warrants then forwarded to the school officials of the respective county or school system.
The Act was passed in 1915. At the beginning of each year thereafter, the Governor advertised for bids for discounting these warrants. On December 16, 1920, the usual notice was given and on January 20, 1921, the bids were opened at the Executive Department and R.N. Berrien, having made the lowest bid, was authorized to handle these warrants, as shown on page 432 of the Executive Minutes. For two years previous he had made the lowest bid for these warrants. Prior to that time they were given as follows:-
1915. Federal Reserve Bank of Atlanta.
1916. Robinson, Humphrey Wardlaw Co., National Park Bank of New York and Federal Reserve Bank of Atlanta.
1917. Third National Bank of Atlanta and Federal Reserve Bank of Atlanta.
1918. Trust Company of Georgia.
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Then, R. N. Berrien Company. During all of this time, exactly the same method was followed.
Taking the warrant sent to Hon. Carlton B. Gibson, Superintendent of the Schools of Chatham County, referred to i'n your letter, as an instance and illustration, we find that on the 27th day of October, 1921, warrant number 1147, was. issued by Your Excellency, in accordance with the Act of 1915, aforecited, in favor of C. B. Gibson, Superintendent of the Schools of Chatham County, for the sum of $10,300.
Attached to said warrant was the following letter which is set out in facsimile as follows:
"November 12, 1921. Treasurer Board Of Education,
Chatham County, Georgia. Dear Sir:-
Enclosed you wi11 find the Governor's warrant for $10,300 for your schools, which is ten per cent of your State appropriation for 1921. Please acknowledge receipt by return post card, and oblige.
This warrant will be discounted at the rate of 7.5 per cent per annum, if endorsed and sent at once to State Superintendent of Schools, M. L. Brittain, Atlanta. As you will see, all that is necessary for proper endorsement is for you to sign your name exactly as it is written in the face' of the warrant and city in the blank indicated.
.Please do not keep the warrant twenty-four hours, as we can do nothing until all are returned. If you will see to it that your warrant is not delayed, check will be sent to you promptly by R. N. Berrien Company of Atlanta.
Please be sure not to deposit this warrant in the bank or have any other endorsement on it than your own. iJf it is not endorsed exactly as directed a duplicate will have to be issued and this will cause much delay.
Very truly, M. L. BRITTAIN,
Superintendent of Schools."
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The manner and proceeding of sending out the other war- rants involved in the alleged defalcation was, as I am advised, exactly similar to the steps taken concerning the one going to Chatham County.
In the manner of sendi"ng these warrants to schools Superintendents, Treasurers of school boards, etc., the State was following an established custom, adopted as an essential step in the discounting of these warrants.
The school official exercised no choice in the selection of the agent, or intermediary, chosen by the State to discount or negotiate the sale of the warrants. The State authorities could not have i"ntended the sending of the warrant to Prof. Gibson as payment, because, through the State Superintendent of Schools, Mr. Gibson is informed that the warrant will be discounted at the rate of 7.5 per cent per annum, if endorsed and sent at once to State Superintendent of Schools, M. L. Brittain, Atlanta. He is further told in said letter:-
"Please do not keep this warrant twenty-four hours, as we can do nothing until all are returned. If you will see to it that your warrant is not delayed, check will be sent to you promptly by R. N. Berrien Company of Atlanta." ,
"Please be sure not to deposit this warrant in the bank or have any other endorsement on it other than your own. If it js not endorsed exactly as directed a duplicate will have to be issued. and this will cause much delay."
- In legal contemplation, the sending of this warrant for endorsement of payee could not have been payment of the warrant.
The payee is assured: "If you will see to i"t that your warrant is not delayed, check will be sent you promptly by R.N. Berrien Company, Atlanta."
By the terms of the Act the sale of school warrants is to "be made at the lowest possible rate of discount."
The sale is made by the State, by a process of "collective bargaining" so to speak. It is a sale in solido, with the respective items, or parts, reassembled after being properly ~ndorsed by each of the payees, i"n order that the school teachers of the State may avoid the heavy discount rate they
107

would likely have to stand if they should undertake to sell the warrants singly.
The endorsement by the payee being deemed a necessary prerequisite to the delivery of the entire lot of warrants to the broker for discount, under the terms of the contract, made with him by the State, the sending of the warrant in question to C. B. Gibson, Superintendent of Chatham County Schools, for his endorsement, was not payment to the County of the amount named i'n the warrant, nor was the return of such warrant so endorsed evidence of payment by the State; nor could the same be held to be a receipt for the payment of the amount of funds named in the school warrant.
The State said, through the Superintendent of Schools: "If you will see to it that your warrant is not delayed, check will be sent you promptly by R.N. Berrien Company." The State by these means instructed Hon. C. B. Gibson, a school official of Chatham County, to return the warrant to the State, in order that the State's agent, R. N. Berrien Company, might thereby be enabled to discount the warrant along with others, and thus obtai'n the money with which to pay the salaries of the teachers of Chatham County.
If the check for the. proceeds of the warrant had been sent by R. N. Berrien Company, as promised in the letter of instructions, the same would have constituted payment, if the check has been paid.
2nd. My conclusion is that R. N. Berrien Company was the agent of the State of Georgia, and not the agent of the Board of Education of Chatham County.
The following citations, will serve to throw li'ght and emphasis upon the well known rule of law:-
"If a principal recognize or adopt a transaction made by his factor, he assumes all of its obligations, both to thir<f persons, and to the factor. And to bind the principal it is not necessary that he confirm it directly but the confirmation may arise by implication from the acts or proceedings of the principal in pais."
Richard Byrne vs. Doughty & Beall, 13 Ga. 46. Headnote 2. "A person who has held out another, through a course of dealing, as his agent, and has thm; induced third parties to
108

deal with him as agent, is estopped, as to such third parties, from denying the agency."
Fitzgerald Cotton Oil Co. vs. Farmers Supply Company, 3rd Ga. Appeals, 212. First Headnute.
"If a person assuming to act as an agent of a corporation without legal authority, makes a contract and the corporation recevies the benefit of it, such acts will ratify the contract, and render the corporation liable thereon."
The Merchants Bank of Macon vs. The Central Bank of Georgia. 1st Georgia 418. 1st Headnote.
"If one of two innocent parties must suffer by the act of a third party, he who put it in the power of such third party to do the wrongful act must suffer the loss, rather than the innocent party who would be a victim without any fault on his part."
Blaisdell, et. al. vs. Bohr, et. al. 77th Ga. 381. Headnote (b). "For the negligence of one person to be properly imputable to another, the one to whom it is imputed must stand in such relation, or privity, to the negligent person as to create the relation of principl and agent. . . . "
Section 3475, Parks Code of Georgia.
"The relation of principal and agent arises whenever one person, expressly or by implication, authorizes another to act for him, or subsequently ratifies the acts of another in his behalf."
Section 3569, Parks Code of Georgia. . . . . . . . . . . . . . ..
In the case of School City of Terre Haute vs. Harrison School Tp., 112 N. E. 514, the Court held:-
"The various officers through whose hands the tuition revenue of the State arising from the common school fund pass in its distribution and expenditure, are agents of the State."
"Through distribution of school revenue to the school corporations of the State does not change the title or ownership of the money. The p~rsons to whom the money is entrusted, and to whom it is delivered, hold it as agents of the State. The State d"oes. not lose control of it until it is paid out for educational purposes."
State ex. rei. vs. McClelland, 138 Ind. 395.
If there be sufficient margin in the fund of four and a half millions of dollars appropriated to the support of the public schools of the State to cover any defi'ciencies created by the alleged embezzlement of the broker, the State could later provide funds to meet such deficiency. It would be
109

proper for the Governor to issue second warrants to any county or school system which has had its respective warrants converted to the use of the State's broker. The entire fund has been disminished, unless the broker shall restore the amount so converted. The later apportionments to all the counties and school systems might require ratable diminution i'n order not to overdraw the total available fund, and in order that every school should receive its just proportion of money paid by the State.
My conclusion is that Chatham County, and the other counties and school districts, by the misuse of the funds allotted to them by the State's broker, Berrien, have not received their portion of the school funds distributable at the time the warrants were sent out; and, therefore, Chatham County, for instance, has received less than its share of the school fund in this distribution.
"Where a particular school district has been apportioneq less than its share of the fund, it i's entitled to be made good, by deduction, in the next apportionment, the amount of the deficit from the amount which would otherwise be applied to those districts which would have received the excess."
.. Andrus, et. al. vs. Parris Directors, 108 La. 286.
3rd. The original warrant involved i'n the instant case will constitute a valid dbligation against the State of Georgia if in the hands of an innocent holder without notice, and before maturity.
4th. The Act above referred to, empowers the Governor to draw warrants either in favor of the State School Superintendent, or the several County school superi'ntendents and treasurers of local school districts in the discretion of the State Board of Education. A certain plan was decided upon, though now proven faulty, and for six years it has been followed. The legislature intended apparently to authorize the Governor to distribute the school fund equably, and to enable the teachers of the State to be paid promptly.
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As said by Tiffany, i'n his work on Government and Constitutionai Laws, "One of the best established rules of interpretation, one which reason and common sense forbid to be overlooked is that when the object of a power is clearly defined by its terms, or avowed in the context, it ought to be construed so as to obtain the object and not defeat it."
In Section 2 of the Act, referred to it provi'des : -
"Said warrants shall be drawn on the funds appropriated by the legislature for any year, and shall not exceed in the aggregate amount the appropriations for the public schools so made for the year."
The Executive has, in my opinion, authorityto issue second warrants to replace any, the proceeds of which may have been embezzled, thus allowing all the schools to participate in the entire fund in like proportion, even if necessary to scale down later allotments, unless by reason of fortuitous ci'rcumstances, or by deficiency legislation,- if needed, a sufficiency of available funds should render the same unnecessary.
The importance of this matter, and the numerous facts connected with its history will, I trust, be sufficient apology for the length of this opinion which is,
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
COUNTY HEALTH OFFICERS ARE NOT SUBJECT TO .PROFESSIONAL TAX.
November 28, 1921. Doctor M. B. Fort,
Commissi'oner of Health, Quitman, Georgia.
My Dear Sir: In re: your inquiry as to whether County Health Officers in this State are subject to the payment of the professional tax required of practicing physicians:
111

The General Statute says:-
"Upon each and every practitioner of medicine., etc., charging for their services as such." See-
Political Code, Section 918.
The 94th Section of the General Tax Act for the year 1921 provides a tax:-
"Upon each and every practitioner of law, medicine, etc., charging for their services as such."
Physicians who are selected for, and and fi1l positions of County Health Officers under the law, are not permitted to practice medicine.
A practitioner of medicine has been defined by the Courts to be one "who shall treat, operate upon, or prescribe for any physical ailment of another for a fee, or who shall hold himself out, by means of signs, car?s, advertisements or otherwise, as a physician or surgeon."
My conclusion is that, under the provisions of the law as stated, a County Health Officer is not requiredto pay a professional tax, during his incumbency of that office, and while at the same time he does not engage in the practice of medicine.
Respectfully submi'tted, GEO. M. NAPIER, Attorney-General.
TAX COMMISSIONER :MAY EMPLOY AGENTS.
November 28, 1921. Hon. Thomas W. Hardwick,
Governor of Georgia, State Cap~tol.
Dear Governor Hardwick: In response to your request, under date of the twenty-third instant, as to your authority to employ counsel in the matter of inheritance taxes in-
112

volved in the ~tate of Joseph Hull, deceased, I have examined very carefully the laws pertaining to this matter, including the Act of the last Legi'slature (Georgia Laws, 1921, Page 204).
My opinion is that this law was intended to cover cases of this nature, and, therefore, that the State Tax Commissioner has authority to employ ah Agent or Agents, to investigate this matter, and that the State Tax Commissioner likewise has authority to fi'x the compensation of the Agent or Agents.
The paragraph on page 205 of the Act seems awkwardly expressed and punctuated, but the sense of it seems clearly to be that in the event inheritance tax returns have lieen made from an estate about which the State Tax Commissioner is not satisfied, he may employ an agent, or agents, to assist him in determining the sums due as inheritance taxes due from that estate.
No commission shall be paid upon any sum acknowledged to be due in the returns of the estate.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.

AS TO WHAT NOTICE REQUIRED FOR SCHOOL ELECTION.
December 5, 1921. Doctor M. L. Brittain,
State Superintendent of Schools, State Capitol.
Dear Doctor: In response to your verbal request that I reply to questions asked you in the attached letter from Prof. J. C. Dukes, Superintendent of the Schools of Terrell County, I beg to say:-
1st: My advice is that you follow the requi'rements of the statute found in Section 440 of the Political Code,. that
113

notice of an election to be called for bond~ be given for thirty days in the newspaper of Terrell County in which the Sheriff's advertisements are published, and also that notice be given for ten days, or more, in the Consoli'dated School District. The term "registered, quali'fied voters" has been held to mean the voters whose names appear on the registration list for the last election held in the County. Inasmuch as no special registration has been provided for, reference will have to be had to this li'st both as to the qualification of the voters, and to ascertain whether twothirds of such registered, qualified voters, shall have voted for bonds.
Inasmuch as the previous registration list must be resorted to to determine these matters, it is, in my opinion, impossible for women to vote in this election, unless their names appear on the previous registration list.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.

ACT CREATING CITY COURT OF ELLAVILLE FIXES THB FEES

OF ITS CLERK.



December 7, 1921. Hon. Charles D. Carter,
Clerk City Court, Ellaville, Georgia.
My Dear Sir: Yours just to hand wherein you ask for opinion as to whether the Act of 1920, page 117, applies to Clerks of City Courts, as well to Clerks of Superior Courts in reference to fees, for attendance upon the Courts.
The Act of 1906, creating the City Court of Ellaville fixes the fees of its clerk for attendance at $2.00 per diem. All ather fees pertaining to this office are to be the same as,
114

.

those named for Clerks of the Superior Courts, where the

compensation is fixed by law. The Act of 1918, page 226, which you cite, is not analo-
gous; for the reason that it specially provides that Sherif~s

shall be paid "for attendance upon Superior or City Courts

(blackface type ours) per day $5.00.



My opini'on is that the per diem compensation for the

attendance of the Clerks of the City Court of Ellaville upon

the sessions of that court having been definitely fixed by

statute, the same cannot be increased or modified by impli-

cation; and that the act of 1920, increasing the fees of the

. the Clerk of the Superior Court does not operate to increase

the fees for attendance upon the court by the Clerk of the

City Court of Ellaville. With best wi's~es for your continued official success and
for your personal prosperity and happiness, I am,

Yours very sincerely,

GEO. M.NAPIER,

Attorney-General.

COUNTY DEPOSITORY MAY BE IN SOME OTHER COUNTY.

December 8, 1921. Hon. G. I. Alford, Chairman,
Board of Commissioners, Putnam 'County, Eatonton, Georgia.
My Dear Sir: Yours of the 7th instant received, in which you rai'se the ql}estion, as to what legal steps your Board can adopt in the selection of a County Depository, where no chartered bank in the county can furnish the bond required by law from a bank appointed the depository of the County
funds. In my opinion, after your Board shall have given each
of the chartered banks in your county an opportunity of qualifying as such County Depository, by giving the requi-
115

si'te bond, and upon the failure of each and all of such banks to qualify, your Board would then have the right to select some chartered bank in another county of this State, to act as the depository of your County, upon giving the bond as required by law. Preference should be given to some bank in an adjoining county. In such event, the minutes of the meetings of your Board, in selecting the various chartered banks of your County, as the depository of your County's funds, as well as the refusal and failure of each and all of them to furni'sh the bond required by the statute; and following such failure of all the banks in turn, a resolution , should be adopted and recorded reciting the facts named, and providing; because of the necessity of having a bonded depository, that another bank chosen .from outside the county, be selected to serve until such time as one of your chartered county banks shall be able and willing to qualify by giving the required bond.
Some of the. Acts creating county depositori'es for other counties provide that where no bank in such county can qualify, authority is given to appoint some incorporated bank in an adjoining county to act as such depository.
The exigenci'es of the case, and the well established rule that when qualified officials cannot be obtained in the county where needed, recourse may be had to one in an adjoining county, until one qualified is provided in the county where so needed, would apply.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
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.
PUNISHMENT FOR POISONING FISH.

December 13, 1921. Hon. J. Frank Rhodes,
State Game Warden, State Capitol.
Dear Sir: In compliance with the request of His Excellency, the Governor, I write you direct, in reference to the matter submitted by Mr. John Rummage, of Toomsboro, Ga. I beg to say :
That two sections of our Penal Code cover this case. They are as follows:

"Section 611: Poisoning Fi~h. Any person who shall directly by himself, or by aiding or abetting others, put walnut hulls, walnut leaves, devil shoe string, or any other poisonous
substances whatever of any kind in any waters, either running streams or standing waters, such as lakes, ponds, or eddy places in any river or creek within the limits of this State, which will be likely to drive away or poison the fish therein by contaminating said waters, shall be guilty of a misdemeanor."

"Section 774, Poisoning Fish. Any person who shall poi.son any lake, river, stream, or pond, with a view of poisoning fish therein, shall be guilty of a misdemeanor."

If evidence can bed>btained,. the parties guilty of poisoning

the streams can be brought to justice and condign punish-

ment.

Yours sincerely,

GEO. M. NAPIER,

Attorney-General.

COUNTY SITE. METHOD BY WHICH TO CHANGE,
December 15, 1921. Hon. William A. Wright,
Comptroller-General, State Capitol.
Dear General Wright: I beg to return herewith the let-
117

ter of Mr. W. C. Beck under date Morgan, Ga., December 14th, readi'ng as follows:-
"I am informed that Arlington has called for an election for the removal of the court house from Morgan to Arlington, an~ I want to' get your opinion as to the people registering. Will it be legal for me to appoint a man in each district of the county to take the registration books and register people, or should I keep the books in my office and let them come and register before me? Will appreciate an early reply."
Section 486, of Parks' Code of Georgia, proves as follows:
"486. APPLICATIONS FOR CHANGE. HOW 1\IADE: Whenever two-fifths of the electors qualified to vote for members of the General Assembly 'as shown by the registration list' (a) last made out of any county of this State shall petition the ordinary for the removal or change of the county site of said county, said ordinary shall at once grant an order directing an election to be held at the various election precincts in said county, not less than forty nor more than sixty days thereafter, notice of which election shall be published weekly for four weeks in the newspaper in which the sheriff publishes his legal notices, previous to the day of said election; all persons qualified to vote for members of the General Assembly are qualified to vote at said election: Provided, that elections under this section shall not occur oftener than once in five years."
You will observe that any person who is qualified to vote in an election for members of the General Assembly is entitled to vote in an election to change-the county site. It is my opinion that the right to vote in the election proposed will be limi'ted to the voters whose names appear on the last registration list of Calhoun County ;therefore, there will be no necessity for the appointment of registrars in each district, or for the registration of voters by the Ordinary.
Trusting that this is the informati'on required by Mr. Beck, I have the honor to remain,
Very respectfully yours, T. R. GRESS, Secretary.
(This opmwn given in absence of the Attorney-General and Assistant Attorney-General.)
118

.
SALARY OF CLERK IN PUBLIC SERVICE CORPORATION $1,200.

December 21, 1921. Hon. W. J. Speer,
State Treasurer, State Capitol.
Dear Sir: In reference to the second paragraph of Section 1 of the Act providing for salary of Clerk to Public Service Corporations (See Acts 1920, Page 236) it may be noted that this paragraph reads as follows:

"Be it further enacted by the authority aforesaid, That the

Wild Land Clerk in the Comptroller-General's office, shall

be ex-officio Public Service Corporation Clerk and shall dis-

charge the duties required of said Clerk by this Act, for

which service he shall receive a salary of twelve hundred

dollars ($1,200.00) per annum, and same is hereby appro-

\

priated by this Act, and the Governor is authorized to draw his warrant quarterly on the State Treasurer in payment of

same, as provided by law for the payment of salaries of State

officers and clerks."

The language "he shall receive a salary of $1,200 per annum, and same is hereby appropriated by this Act" (blackface type ours) carries the appropriation, without reference to any appropriati'on for same in the General Appropriation Act.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.

BOARD OF EDUCATION AUTHORIZED TO PAY COSTS OF PROCEEDINGS AGAINST COUNTY SUPERINTENDENT OF SCHOOLS, IF UNDERTAKEN IN GOOD FAITH.
December 16, 1921. Ron. M. L. Brittain,
State Superintendent of Schools, State Capitol.
Dear Doctor Brittain: .Upon, request for opinion on the
119

question propounded i'n the following letter from Hon. J. G. White, Superintendent of Schools of Atkinson County, towit:-

The Board of Education have instructed me to pay the expense account incurred by them in the proceeding to dis-
miss me from office. Please have the Attorney-General to give you an opinion as to the legality of this debt being paid out of the County school funds, and advise me what to do."

I assume that the Board of Education have instructed Mr.

White to pay out of the school fund.s of Atkinson County,

the expense of the proceedings instituted by them against

Mr. White.



My information is that upon investigati'on by the State

Superintendent of Schools, it was decided to retain Mr.

White.

However, that may be, if the County Board of Education

undertook the proceedings for the good of the public service,

and believed the same to be essential in the advancement of

that service, the expense of fjUCh proceedi'ngs could be paid

out of the public school fund of the county.

County officials acting within the scope of their duties,

in good faith, and not for purposes of private gain, or per-

sonal spite, would not themselves be chargeable with the

expense of any litigation incurred i'n their discretion as such

public officers.

Respectfully submitted,

GEO. M. NAPIER,

Attorney-General.

DEFAULTING TAX COLLECTOR. IF STATE'S INTEREST IN VOLVED, SUBJECT TO DISMISSAL BY GOVERNOR. IF COUNTY'S INTEREST INVOLVED, SUBJECT. TO COURTS.
December 19, 1921. Hon. Thomas W. Hardwick,
Governor of Georgia, Atlanta, Georgia.
Dear Governor: In the matter of the case of A. H.
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.
Glenn, Tax Collector of Chattooga County, which you referred to me on Saturday, 17th instant, for research and report as to certain phases of the law involved, I have the honor to submit the following:-
1st: My efforts did not extend to investigati'on of the technical meaning of "default," nor other purely technical questions. Nor have I examined the record in the case.
2nd: In order to obtain light on the meaning of the statutes involved, it was deemed proper to investigate the relative interest of the State and of the County involved, for the purpose of consi'dering the application .of the law to the respective interests of the State and of Chattooga County.
In the case cited in the 48th Georgia, we find that Judge Trippe said in the opinion:
"These provisions demonstrate what strong guards and means for summary protection both the organic and statute law throw around the public money. The running of the State machinery is so intimately connected with its treasury, and may be said to be so dependent upon it, and it is of such transcendant importance to the citizens and the public, that it cannot be subjected to the ordinary rules governing in other cases. Though great power is given to the Governor in the case of Tax Collectors and Tax Receivers, public policy and public necessity require it. Unless summary power and a speedy remedy be lodged somewhere, great danger may ensue-a danger greater to the State than a possible wrong that may be done by mistake, or otherwise, to the officer."
The State of Georgia, ex. rei. James M. Lennard vs. James A. Frazier. 48 Georgia 137.
My construction of this is: That the words "The :r:unning of the State machinery is so intimately connected wi'th its treasury, and it may be said to be so dependent upon it, and is of such transcendant importance to the citizens and the public that it cannot be subjected to the ordinary rules governing in other cases" imply that the "summary power and speedy remedy" referred to, and that the "great power gi'ven to the Governor in the case of Tax Collectors" should be considered in cases where the State alone is involved and
concerned.
121

The high court here refers to the lesser evil of wronging the officer than of allowing a "great danger" to ensue to the State.
In my opinion, the weight of argument and authority in construing the effect of laws would indicate that, even if it should be held under the deci'sion that it is mandatory upon the Governor to remove the Tax Collector who has defaulted in his duty to the State, it is not so mandatory upon the Governor to act when such default, failure or omission in the performance of the collector's duty involves his County only.
The duties of a Tax Collector toward the State and toward his County are clearly severable and distinct. This is shown by the separation of hi's bond as to the collection of taxes due the State and the taxes due to the Comity.
Section 1209, Parks' Code (Section 947 Political Code 1895, Vol. 1- provides that the Ordinary may, under certain circumstances appoint some one to collect the County tax. The section following defines the duties of such appointee.
Section 528, Parks' Political Code, covers the method by which County Offi'cers may bring defaulting Tax Collectors to an accounting as to county funds, and whereby they may suspend a Tax Collector, appoint another person in his stead to col~ect the county tax "pending such suspension and until the question of removal can be t:Jassed upon and decided by the proper tribunal."
Thus, clearly is defined the line of demarcation when the State and County proceed against an alleged defaulting Tax Collector. The two principal cases cfted are Bassett vs. Governor, lith Georgia 207, which was a proceeding reaching the Superior Court after the Justices of the Inferior Court had passed upon the matter, and wherein, the court held that securities on the Tax Collector's general bond are liable for default in the collection of the County taxes. The other decision is that in the case of Barlow, 47th Georgi'a,
122

page 839. In his opinion in the Barlow case, Chief Justic~ Warner said:-
"By the 933 Section of the Code, the Tax Collector is required to give two bonds: One for the collection of the State tax, and another bond, with sufficient security, payable to the
a Ordinary conditioned for the faithful nerformance of his
duties as Collector of the County Tax, in sum to be fixed by the Ordinary. The Ordinary has the same remedy to enforce the collection of the county tax on this latter bond against the Tax Collector and his securities thereto, as the OJmptroller-General would have against the collection of State taxes when in default."
"The securities upon a Tax Collector's bond payable to the Governor of the State, conditioned for the faithful performance of his duty in the collection of the general tax of the State are not liable to the Ordinary for the failure of the Tax Collector to collect and pay over the County tax."
This appears to effectuate a reversal of the opinion of the earlier case; and, I think, leaves a case involving County taxes only, clearly distinguishable from an instance where the Tax Collector has been derelict in his duty to the State.
The instant case involves some interesting and intricate points of law.
Taking the whole matter in its present situation the question arises, as I understand it: Whether Your Excellency will exercise the power of removing A. H. Glenn, or will the Superior Court, which has assumed jurisdiction of the cause involving County taxes only be allowed to pass upon the matter, thus giving Mr. Glenn a hearing before a jury.
If there be any further work of investigating any legal question, or particular case involved, I shall be pleased to await your commands.
With assurances of highest regard, Respectfully submi'tted, GEO. M. NAPIER, Attorney-General.
"123

COl\11\iERCIAL REPORTING AGENCIES PAY WHAT AMOUNT OF TAX.
,December 28, 1921. Hon. W. B. Harrison, Digest Clerk,
Comptroller-General's Office, State Capitol.
My Dear Sir : Responding to your verbal request for opinion as to the tax enforceable upon certain agencies, as described in the sixth and lllth paragraphs of the General Tax Act, I beg to say that:
The meaning of the language employed seems to be clear and unmistakable.
It providesa tax of two hundred dollars in every County in the State where such an agency may have an agency or branch agency which handles "collecti'ons," also referring to them as "commercial, and mercantile agencies."
Section 111 of this Act reads as follows:
"Reporting Agencies, Commercial. Upon each person, firm or corporation, engaged in the business of a commercial reporting agency in every county in the State where they have an office or branch office $125.00."
In my opinion, persons, firms, or corporations engaged only in the business of furnishing commercial reports are taxable in every county of the State in which they have a branch office the sum of $125.00, only.
Agenci'es handling collections, in certain counties of the State, would, of course, have to pay a tax of two hundred dollars in each county in which such agency may have an office or branch office, handling such collections.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
124.

SYRUP CALLED "SMILE," NOT FULLY LABELLED.

Hon. 0. S. Lee, Chief Food Inspector,

December 22, 1921.

State Capitol. Dear Sir: In reply to your inquiry as to the status of tlie soft drink being sold under the trade name of ('Smile" I beg to say: Upon an examination of the law applicable to thi's matter, my opinion is that:It is unlawful for the Smile Syrup Company to make and

distribute its so-called Smile Syrup, for the reason that it

violates the legal effect and fmport of sub-section 2 of Section 5 of the Georgia Food and Drug Act. The language is :

"If it be labelled or branded so as to deceive, or mislead the purchaser."

Evi'dently, it was the legislative intent to so fully protect purchasers that all such commodities must be sold, labelled or branded as to fully reveal to the purchaser what he is buying.
Now, if Smile should be sold under the name of "Orange Smile" for instance, and with a statement as to its content, the law might tolerate it.
W.ith the compliments of the season, I am, Very sincerely yours,

GEO. M. NAPIER, Attorney-General.

WRIT OF HABEAS CORPUS DENIED BY U. S. DISTRICT JUDGE BUT SUPERSEDEAS GRANTED.
December 29, 1921. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick: In the matter of Joe Bonner,
-12&

whose case was today considered by Judge Beverly D.

Evans, of the United States District Court, the following

telegram has been received:-



"Your wire. Following is complete copy of order. The above-named Joe Bonner, appellant, having applied to the United States District Court for the Southern District of Georgia, for a writ of habeas corpus, and his application having been denied, and he having filed his appeal to the Supreme Court of the United States from this decree, order and judgment of this Court denying his application for writ of habeas corpus, and citation having duly and regularly issued; Therefore, it is ordered by the Court that the said appeal operate as a supersedeas and the appellee, J. C. Middlebrooks, Sheriff of Jones County, Georgia, and his successors in office, is hereby ordered and directed to stay all proceedings against the above-named appellant, Joe Bonner, and the execution of the sentence of death of the Superior Court of Jones County, Ga., until his appeal is finally determined by the Supreme Court of the United States. It is further ordered that a copy of this order be served upon said J. C. Middlebrooks, Sheriff of Jones County, Georgia, together with a citation of this Court, by the Marshal, or by his Deputy. This, the 29th day of December, 1921. Beverly D. Evans, U. S. Judge."
Mr. W. 0. Cooper has called, and tells me he received
telegraphic communication from Savannah that Judge Evans
did not hear the writ of habeas corpus, but entered a denial,
allowing an appeal to the United States Supreme Court, and
granted a supersedeas, and dir.ected the Marshal to serve
the Sheriff of Jones County. He also informs me that the
Federal question made in the habeas corpus proceedi'11g is
based upon the allegation that the confession of the defend-
ant, Joe Bonner, was not freely and voluntarily made; and
that, therefore, he has been condemned without due pro-
cess of law, in violation of the Fourteenth Amendment to
the Constitution of the United States.
This proceeding is somewhat similar to that followed in
the Rawlings case, and in the Frank case. In principle, it
was held in the Frank case:-

"Habeas corpus will lie in the Federal Courts in behalf of a person held in custody under a conviction of crime in a State Court only in case the judgment under which the prisoner is detained is shown to be absolutely void for want of jurisdiction in the court that pronounced it, either because
126

such jurisdiction was absent at the beginning, or because it was lost in the course of the proceedings."
59th L. E. U. S. C. Repts., Page 969.
The proceedings seem to be in line with prevailing practice in the'United States Courts. This, of course, is going very far in taking over States' Rights, but the tendency, sad to relate, has been in that directi'on for some years.
The United States Supreme Court, in the 169th U. S. 653 held in re; Boardman, in behalf of Durrant:-
"If a State Court, after judgment here, proceeds before our mandate or affirmance issues, its action, though not to be commended, is not void."
On a habeas corpus, the court cannot look behind the sentence, where it had jurisdiction.
It has been held that, a Federal question raised in the United States Courts, is not availing, unless the question was rai'sed in the proceedings in the State Court, whose judgmentis under review.
This, of course, is a technical turn to save the neck of the condemned man. If the sheriff is served in time the.order will be controlling.
Whether your Excellency should grant a respite is a matter solely in your discretion, in my opinion.
Respectfully submi'tted, GEO. M. NAPIER, Attorney-General.
CORPORATIONS NEED NOT OBTAIN FROM ORDINARY A CERTIFICATE THAT THEY HAVE REGISTERED.
December 31, 1921. Hon. J. V. Castleberry,
Ordinary, Stewart County, Lumpkin, Georgia.
My Dear Judge: Replying to yours of the 30th instant, I beg to say:
From a careful examination of the law, it does not appear
127

necessary for persons or corporations registering in your

office, for carrying on a special business, to obtain from I
the Ordinary a certificate that they have so regi'stered, but

it seems to be desirable that they should have evidence that

they have so registered. In other words, the law seems to

be silent in this particular, and yet, for practical purposes

it would seem entirely desirable for all parties to have a

certificate, under the seal of the Ordinary, showing that such

business or occupati'on had been so registered. In the event

such certificate, under the seal of the Ordinary should be

aceptable, or desirable, by the parties, then you would be

entitled to your fee of $1.50, for issuing such certificate, and

seal.

Trusting that this may cover the questions propounded

in your letter, and, with best wishes for your continued of-

ficial success, and for a Happy and Prosperous New Year,

I am,

Very sincerely yours,

GEO. M. NAPIER,
Attorney~General.

PENSIONS FOR YEAR 1922 RESTRICTED TO PENSION LIST PRIOR TO 1919, BY EXPRESS LIMITATIONS IN APPROPRIATIONS ACT.
January' 10, 1922. Hon. J. W. Li'ndsey,
Pension Commissioner, State Capitol.
Dear Judge Lindsey: In accordance with your request, transmitted through the Executive Department, for a con struction from this office of the Acts fixing the amount of pensions to Confederate. soldiers to be paid this year, I beg to say:
Section 14, Paragraph (d) of the Act of 1921 (See Georgia Laws, 1921, Page 18) provi'des as follows:-
128

,

"For the payment of p<!nsions which shall become due for each of the years 1922 and 1923, $1,250,000.00. The same to be paid to that class of pensioners showing a pension prior to the Acts of 1919, and the amount to be paid to be the same as paid prior to all ,Acts of 1919."

The effect of this language is to limit the pensioners to those drawing, or "showing" pensions, prior to the Acts of 1919, and likewise to restrict the payments to the amounts paid.prior to all Acts of 1919."

The effect of the legislation of 1921 i's to repeal all Acts extending the eligibility of pensioners after the Acts of 1919, and, therefore, to repeal the Act of 1920. The legislative enactment at once struck many from the Confederate pepsion rolls, and at the same time reduced the annual payments to those whose names were allowed to remain on the lists.

The language of the Act is plain and unequivocal: "The

same to be paid to that class of pensioners showi'ng a pen-

sion prior to the Act of 1919." All other names were thus

eliminated. New names, added by the extension authorized

. in the Acts of 1919, and 1920, were thus removed. Possibly the General Assembly regarded the financ.ial emergency of the State as needing relief; and considered

a return to the class of pensioners, and the amounts allowed

such pensioners, as of the years previous to 1919, as essential.

'

At any rate, the effect of the law of 1921 has been to . li'mit legal payment of pensions to those only who were on the rolls prior to the Acts of 1919; and, as hereinbefore stated, to scale the payments down to the amounts allowed prior to "all Acts of 1919."
Respectfully submitted, GEO. M. NAPIER, Attorney-General.

129

SUPPLEMENTAL APPROPRIATION AVAILABLE FOR SUPPORT OF CONFEDERATE SOLDIERS' HOME.
January 10, 1922. Governor Thomas W. Hardwick,
State Capitol, City. Dear Governor: Responding to your -request for a written opinion as to whether the appropriation of $5,000.00, provided under Acts 1919, Page 38, as a supplemental provision for the support of the Confederate Soldiers' Home is available, regardless of th.e fact. that no menti'on is made o~ it under the General Appropriation Act of 1921: A careful examination of the Act in question results in the conclusion that this supplementary provision is to be effective annually. Section 5 of the Act provides that the Board of Trustees for the Home shall file with the Governor an annual report showi"rig in detail the disbursement of the particular funds. In my opinion the sum. of $5,000.00 is available for the year 1922, and will continue to be annually available until said Act of 1919 is modified, or repealed by the General Assembly.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
TWO COUNTY OFFICES CANNOT BE HELD BY SAME PERSON AT SAME TIME.
Governor Thomas W. Hardwick, Governor of Georgia, State Capitol. January 12, 1922.
Dear Governor: Complying with your request for an opi'nion as to the disqualification of one who has been elected
130

.
a Commissioner of Roads and Revenues for a County in this State, who already holds the office of N. P., and ex-officio J.P., of his County:
Such person may qualify for the new office by promptly resigning from the office of Notary Public and ex-officio Justice of the Peace. Unless he does resign he is barred from recei'ving a Commission as County Commissioner.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.

TAX COLLECTORS REQUIRED UNDER THE LAW TO KEEP

SCHOOL FUNDS SEPARATE FROM STATE AND COUNTY

FUNDS.

.

January 12, 1922.
Hon. M. L. Brittain, State Superintendent of Schools, State Capitol.
Dear Sir: In response to your request for opinion as to the duty of Tax Collectors in collecting and accounting for special school taxes on county unit basis, I beg to say:...:..._
Section 130 of the School Code fully covers this matter,
and it reads as follows:-
"It shall be the duty of the Tax Collector to compute and collect said taxes, keeping the same separate by school districts from the county and state funds, and monthly turn same over to the secretary of such local school districts, as well as tax received for said district from railroads and other corporations, that make their returns to the ComptrollerGeneral, taking receipt for the same upon order from the County School Superintendent, and said Tax Collector shall receive as compensation thereof two and one-half percent of the amount collected up to $18,000.00, and one and one-fourth perc.ent on any additional amount collected."
In collecting special school taxes, under a county uni't of taxation, the Tax Collector is required, under the provisions of the Jaw above cited, to keep these taxes separate from
131

the State and County funds, and to turn over the funds MONTHLY to the proper school authorities of the County.
This duty is mandatory upon the County Tax Collector. He has no discretion in varying from the law, and by mandamus can be compelled to make such monthly accountings of the school money.
The law in this State has slowly, but at least gradually developed enactments looki'ng to a modification of the scant policy toward our teachers, who have long had to discount their small earnings in order to obtain a living.
It is the scope of this statute to yield up the money gathered under special taxation for schools ,as gathered in, an9 it makes clearly the duty of the Tax Collectors to account
with the funds. The policy of retaining the money in bank
is foreign to this law. Respectfully submitted, GEO. M. NAPIER, Attorney-General.
THE GOVERNOR'S RIGHT TO DECLINE TO CONTINUE SALE OF SCHOOL WARRANTS.
January 12, 1922. Hon. M. L. Brittain,
State Superintendent of Schools, State Capitol.
Dear Doctor Brittain: Replying to your letter stating:-
"The Governor declines to advertise for bids for the school warrants, believing that these arrangements should be made by the State or local superintendent. I wish myself that the extra hazard necessarily involved in discounting these large sums might be avoided, but the pressure for this financial help is so great from all over the State, and the law authorizing it is so plain, that prompt action is required in this emergency.
"I write to ask, therefore, if I am authorized "to advertise and arrange for these bids, as has been done by the different Governors of the State heretofore. In other words, the
132

,
Executive Department of the State under previous Governors arranged the method and plan hitherto followed with the advice and counsel of leading banking authorities of the City, and I feel the necessity for careful legal guidance in making any changes, especially as the law as passed in 1915 does not seem to give this authority to the State or County Superintendent."
Paragraph 2 of the Act (See Georgia Laws 1915, PP. 56 and 57) provides:-
"Be it enacted by the General Assembly of Georgia, and it is hereby enacted by authority of the same, That for the purpose of anticipating collection of taxes, the Governor shall be and he is hereby authorized to draw his warrant, at the end of each and every month, in favor of the State School Superintendent or the several county school superintendents and treasurers of local school systems, in the discretion of the State Board of Education, for such amount or ani.ounts as are then due the teachers. Said warrants shall be drawn on the funds appropriated by the legislature for the current year, and shall not exceed in the aggregate amount the appropriation for the public schools so made for that year. The honor of the State is hereby pledged to the payment thereof."
The law does not impose upon the Governor the duty to adverti'se for bids for the discounting of these warrants, and it will, in my opinion, be lawful for the State Superintendent of Schools to direct the discounting of such warrants, if agreeable to the payees, effectuating the mandatory provision, the sale to be made at the lowest possible rate of discount.
Inasmuch as the Executive construction, since the passage of this Act has been that the Governor should adverti'se for bids for the discount sale of these warrants, and since the Executive himself has conducted these negotiations of the sales of the warrants, I take the liberty of suggesting that an Executive order be passed and duly recorded directing the State Superintendent of Schools to advertise for bids, and direct and conclude the negotiations for the sale of the warrants, and the di'stribution of the funds.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
133

GOVERNOR 1\IAY RECALL APPROVAL FOR EXTRADITION.

Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.

January 13, 1922.

Dear Governor Hardwick: In response to request from

the Executive Department in reference to the case of one J. W. Taylor, of Early County, for whose extradition to Florida you allowed papers to issue-as more fully set out

in letter of A. H. Gray, Esq., Attorney at Law, of Blakeley, Ga.:

It is my opinion that you are quite at liberty to recall your approval of the requisiti'on of the Executive Department of Florida, upon prima facie evidence that injustice might be done to have the alleged fugitive from justi'ce extradited; and that you may ask for further evidence.

Aside from the technical allegation that J. W. Taylor,

aforesaid, was not in Flori'da, when the check was issued, it is at least true that he was really not a fugitive from justice.

The further showing that said Taylor had already made
the deficient check good indicates, if true, that the pro-
ceedings smack of an effort to use the criminal functions
of extradition as agency to collect a debt.

Thi's is said without prejudice to the effect of any facts to be presented at a hearing before Your Excellency, provided such a hearing be granted.

With great respect, Sincerely yours,

GEO. M. NAPIER, . Attorney-General.

184

.
CALCIUM ARSENATE INSPECTION MAY BE PERFORMED BY ONE OF SIX FERTILIZER INSPECTORS.
January 14, 1922. Hon. J. J. Brown,
Commissioner of Agriculture, State Capit9l.
Dear Sir: In answer to your question whether the laws governing your department will authorize you to spend a part of the fertilizer money for the payment of the salary of an "inspector of fertilizers and calci'um arsenate."
"In my opinion the law would authorize you to require one or more of your six inspectors of fertilizers, whose se:r.vices you employ for the entire year, to inspect calcium arsenate, after the season for the use of that insecticide opens.
The law contemplates that it i's specially within the province of your Department to make effective the use of insecticides which will protect the crops, fruits, etc., of this State.
However, in my view of the law, you would not be authorized in effect to create a position not contemplated and not provided for in the Acts pertaini'ng to your Department.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
CONSTABLES MUST BE UNDER BOND.
January 18, 1922. Mr. J. H. Hollingsworth,
Tax Collector, Georgetown, Georgia.
Dear Sir: I am pleased to have yours of the fourteenth instant, but do not know whether I can help you out of your difficulty.

You certainly need a bonded Constable in your County. They cannot legally function without being under bond. Five hundred dollars in incorporated towns and cfties, and $200.00 in districts outside of incorporated towns and cities. It seems to me that the best thing for you to do is to insist that some Constable make this bond so you can turn over to him your tax fi fas for collection. It is a very bad time to enforce the collecti'on of taxes, of course, but the law lays down your duty, and it is necessary to comply with the law.
The Constable can levy the fi fas up to $100.00 in amount. The Sheriff would be obliged to levy those in excess of that sum. The law says that the Tax Collector may turn over the tax fi fas to the Sheriff or Constable, but I do not know by what process you could compel the Sheriff to take the fi fas unless he is willing to do so in the regular discharge of his duties.
You can put it up to the Sheriff that you have a right to deli'ver these fi fas to him for collection. He should take them to help you, or assist you in getting the Constable bonded so you can turn over to the Constable the fi fas under one hundred dollars.
I know the difficulties that you face in the discharge of your unpleasant duty when times are so hard; and yet, the people will appreciate and feel that an Officer is obliged to carry out the requirements placed upon him by the law.
Very sincerely yours, GEO. M. NAPIER, Attorney-General.
136


MERGER OF FHATERNAL ASSOCIATIONS LAWFUL, IF FAIR.
July 19, 1921. Hon, Wi1liam A. Wright,
Comptroller-General, State Capitol.
Dear General: Replying to yours of this date with reference to the combination and merger of the Eminent Household of the Woodmen of this State, and the Columbian Wood.: men of Mississippi, I beg to say:
Your attention is called to Section 2221 of Parks' Code of Georgia.
In this connection please also see the case of:Griffin vs. Inman, Swann & Co., 57th Ga. Report (9) Page 372.
Encyclopaedic Digest of Georgia Reports, Page 803, sub-title 4; contracts between corporations having officers in common.
My conclusion is that these two corporations could effectuate, and would have the right to effectuate the merger, and the consolidation of their offices and resources, provided the same should be deemed a fair contract.
Under the law, the Insurance Commi'ssioner is the proper person to decide whether such contracts between corporations having the same officers is a fair contract.
You could, therefore, either by directing a complete referendum to the Georgia membership, or by any other process of investigation you may deem wise and convenient, satisfy your mind on this subject.
Evi'dently the burden is upon the merger corporati_on to establish the fairness of the proposed contract. With great respect, I am,
. Sincerely yours, GEO. M. NAPIER, Attorney-General.
137

CONSIDERING THE LAW REQUIRING PUBLISHERS OF SCHOOL BOOKS TO FILE AFFIDAVITS, ETC. (See Also Next Opinion.)
November 10, 1921. Hon. M. L. Brittain,
State Superintendent of Schools, State Capitol.
Dear Doctor Brittain: Replying to your favor of November second, in whi'ch you raise the question, whether publishers of school books, when they file lists of books and prices, with new bonds, at the expiration of a five-year period, as provided in the Yeoman's Law, may be allowed to file books in this State at higher prices than they are now delivering books in other States, and wherei'n you state you have been advised this question will arise when publishers submit renewal propositions for furnishing school text-books, now being used in the public schools of this State, I submit the followi'ng opinion:-
1st: It may be unprofitable for publishers to furnish school books for the next five years at the prices at which they contracted to furnish them five years ago. The result of such a situation might reduce the number of publishers who would compete for the business of this State, and might thus restrict the list of books to such an extent that the State of Georgia could not obtai'n many books which would be very desirable to her schools. All of these questions, however, should have been considered by the legislative mind when this matter was presented for passage.
2nd: The law says in Section 4 of the Yeoman's Act, Acts 1916, Page 106:-
"which price shall not exceed the lowest price the publisher has made elsewhere in the United States."
Again, in the same Section:-
"so that at no time shall any book so filed and listed be sold to school authorities in Georgia at a higher price than is received for such book elsewhere in the United States."
138

This language "than is received for such book," confines

the matter to the present, current, and continuing business,

and is conclusively hedged about by the words "so that at

no time," quoted supra.

3rd: Under the provisions of the law, our school author-



ities would not be authorized to contract with any publisher

who does not make bond as required in Section 4 of the Act

of 1916, above referred to, which is as follows:-

" ... the bond to be conditioned as follows: First, the publisher "'ill furnish any of the books listed in said statement, and in any other statement subsequently filed by him wwithin five YEars to the Board of Education of any County, City, local School system, separate School district, and District Agricultural Schools in the State of Georgia, at the lowest net wholesale price contained in said statement, which price shall not exceed the lowest price the publisher has made lsewhere in th United States, an dthat he will maintain said price uniformly throughou tthe State of Georgia, on the books filed under the provisions of this Act. Second: That the publisher will reduce such prices automatically to the State of Georgia whenever reductions are made elsewhere in the United States, so that at no time shall any book so filed and listed be sold to school authorities in Georgia at' a higher net price than is received for such book elsewhere in the United States; and tha tupon failure or refusal of the publisher to make such reduction all contracts for such book or books shall become null and void. Third: . That all such books offered for sale, adoption or exchange in the State of Georgia shall be equal in qulayi tto those filed in the office of the State Superintendent of Schools, as regards paper, binding, print, illustration, subject matter, and all other particulars that may affect the value of such school books. Fourth: That the publisher shall not enter into any understanding, agreement or combination to control the prices or restrict competition of the sale of school books in the State of Georgia."
4th: My attention has been called to an opini'on of the
Attorney-General of Mississippi upon a similar question.
But the statute of Mississippi is quite different from the
Georgia law, omitting enti'rely the sweeping and unequivocal
requirements already hereinbefore quoted from Section 4
of this State.
5th: 1f it be found that the necessity of following the
prices now existing in other States will prevent publishers
from listing books for an incomi'ng period of five years, the

139

legislature will have to be looked to to modify the requirements heretofore enacted.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
BONDS OF PUBLISHERS FILED WITH PRICES, APPROVED WITH RESERVATIONS.
January 19, 1922. Hon. M. L. Brittain,
State Superintendent of Schools, State Capitol.
Dear Doctor: The attached bond is approved, so as to render the same operative, but the approval of same is with the following qualifications:
Having very serious concern as to the meaning of the second clause in the condi'tions of the bond required by the Act of 1916, all of which requirements are specifically made a part of the bond attached hereto; and facing, on the one hand, the almost certain withdrawal of school book pubiishers who have been dealing with this State, thereby causing inconvenience and actual loss on the part of the patrons of our Schools in changing to new series of books ; and, on the other hand, the revision of pri'ces upward by all the publishers now serving our State, as well as those who would list their books if allowed to file under a higher scale of prices, the undersigned sought and obtained from Honorable M. J. Yeomans, the author of the law, under the provisions of which these findings of prices and bonds are made, his understandi'ng of the legislative intent pertaining to said law.
140

~.' His reply covers two phases of the question, and they
may be briefly stated in his own language:
"It was never the intention of the author of the law, nor of the General Assembly that passed it, that it would ever be used as an instrument for fixing prices, but that it would act to prevent unjust discrimination in contracts of sales of contemporaneous dates, and under similar conditions. At the time the Bill was passed, publishers were actually contracting for the sale of books in other States at less prices than they were being offered for sale, or were being sold in Georgia. With these conditions in mind, the Author so framed the Bill as to prevent this unjust discrimination."
"The Author of the law well knew, as did the General Assembly that passed it, that the cost of the production of all commodities were continuously fluctuating from time to time, and from year to year, and in order that prices might be made stable within a fixed period, and uniform throughout the State with undue and indiscriminate charges precluded, the Bill was so drawn as to provide for a five-year contract, and for a sale at the beginning of that contract, with deliveries thereon deferred to a later time, as the books were needed.
"The contract with the State of Georgia made with various publishers is an entire contract, and not severable, and the Author of the Bill having at the time of the passage thereof, and previously thereto made an exhaustive study of contracts of a similar nature which publishers had made with other States, had this particular question in mind. It was never the intention of the Author, nor of the General Assembly that either the State, or the publishers, should be bound by a contract of sale, which the publishers may have made years before with another State, and on which deliveries were then being made.
"A contract of sale, or a sale made by a publisher, say with the S'tate of Wisconsin, in the year 1919, and running five years from that date, and on which books are now being delivered in compliance with the sale then made, will not affect or determine the price which the publishers may make to Georgia in the year 1922, but that price must be fixed and determined by the lowest net wholesale price at whcih books are now being sold or offered for sale anywhere in the United States."
Considering the views above set forth and the exigencies
of the present situation with reference to the cost of pub-
lishing and manufacturing books, and relying upon the con-
dition of the bond to the effect that, whenever lower pri'ces
are made elsewhere in the United States, the State of Geor-
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gia shall immediately be given the benefit of same, the annexed bond is hereby approved.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.

PROCEDURE WHERE SOLICITOR GENERAL DISQUALIFIED.

Hon. Thomas W. Hardwick,

January 24, 1922.

Governor of Georgia,

State Capitol.

Dear Governor Hardwick: In reply to the request of

certain citizens of Jeff Davis County, for the assistance of

this Department in an i'nvestigation of the fire which destroyed the Carter Cotton Oil Mills on February 21st, 1921, I beg to say that:

Section 4929, of the Code provides that:-

"When a Solicitor is absent or indisposed, or disqualfiied from interest or relationship to engage in a prosecution, the presiding judge must appoint a competent attorney of the circuit to act in his place, or he may command the services of a solicitor-general of any other circuit accessible or he may make a requisition on the Governor for the Attorney-General, as the emergency in his discretion may requirE!."
Section 254 (3- of the Code provides:-

"To attend, on the part of the State to all criminal causes in any of the circuits, when the Solicitor-General thereof is prosecuted, and to all other civil or criminal causes to which the State is a party."
Section 255. reads as follows:-

"When the services of such Attorney-General shall be needed in any of the judicial circuits, the presiding judge thereof shall notify the Governor twenty days before the time, place ami cause, and the Governor may (in his discretion) order the Attorney-General to comply, unless the law in the case presented makes it his imperative duty to do so."
142

From the law above cited, it seems to me that it is proper for the presiding judge to give direction to this matter, and, i'f he should think proper to make requisition on the Governor for either the Attorney-General, or the Assistant Attorney-General to handle this matter before the Grand Jury, or to prosecute the case to trial, the said Judge should take the initiative. This. does not exclude the exercise of discretion on the part of the Executive, in my opinion.

In this connection, please let me suggest that i't will be well to avoid establishing the precedent of sending some one from this office to the various circuits except in criminal causes of outstanding importance, for the reason that many calls would likely be made upon the Attorney-General if it once becomes known he i's subject to be designated to relieve the Solictors-General of their duties in the premises. But, of course, ~n this instance you are solely the judge concerning the importance of the matter.

With great respect, I am, Very sincerely,

GEO. M. NAPIER, Attorney-General.

VACANCY IN OFFICE OF .JUDGE. OF CITY COURT. HOW

FILLED.

'

<

Governor Thomas W. Hardwick, State Capitol.
Dear Governor: Responding to your request for opinion as to filling the vacancy i'n the office of Judge of the City Court of Leesburg, Lee County, I submit the following:-
This office was created under Act passed in 1905. (See Georgia Laws 1905, Page 267-.
"Be it further enacted by the authority aforesaid, That there shall be a judge of the said City Court of Leesburg, who shall be appointed by the Governor by and with the advice
143

and consent of the Senate, whose term of office shall be four years, and all vacancies in the office of Judge shall be filled by appointment of the Governor for the unexpired term subject to the approval of the Senate, which may then be in session, or if the Senate be not in session at the time of such appointment, then subject to the approval of the Senate at its next session thereafter."
In my opinion, you have the right now to fill the existing vacancy, subject to confirmation by the Senate at its next session.
However, having let the appointment pass beyond the first of January, no harm would occur, should you deem it entirely advisable, to defer making the appointment until the Senate is again in session.
Respectfully yours, GEO. M. NAPIER, Attorney-General.
TAX COLLECTORS COLLECTING SCHOOL TAX ENTITLED COMPENSATION.
January 27, 1922. Hon. P. H. Jones,
Tax Collector, Albany, Georgia.
My Dear Sir: Yours inquiring what compensation is provided by law to Tax Collectors for collecting school tax, duly to hand.
The compensation is fixed by Section 130 of the School Code, whi'ch is as follows : -
"It shall be the duty of the Tax Collector to compute and collect said taxes, keeping the same separate by school districts from the County and State funds, and monthly turn same over to the Secretary of the local School districts, as well as tax received for said district from railroads and other corporations that make their returns to the ComptrollerGeneral, taking the receipt for the same upon order from the County School Superintendent, and said Tax Collector shall receive as compensation thereof two and one-half percent of the amount collected up to Eighteen Thousand
1:44

.
($18,000.00) Dollars, and one and one-fourth percent on any additional amount collected."
With best wishes, GEO. M. NAPIER, Attorney-General.
GOVERNOR HAS POWER TO DECLARE OFFICE VACANT WHEN OFFICER FAILS TO DO HIS DUTY.
January 28, 1922. Hon. A. H. Riley,
Ordinary, Butler, Georgia. Dear Judge: Replying to your letter in reference to Mr. W. J. Griffith, and his present disabilities with reference to the office of Receiver of Tax Returns of Taylor County, I am glad to reply at the earliest possible moment. The law provi'des that when such officer fails to do his duty, it is within the power of the Governor to declare the office vacant, but I think it would be a strained construction of the law to interpret it as contemplating that when a man becomes physically sick that he could be deprived of his office because of his technical fai1ure to perform its duties. It would be within the rights of Mr. Griffith to employ a clerk, or deputy, who could perform the duties of the office for Mr. Griffith. Of course, Mr. Griffith is bound under his bond to pay the State for any loss or damage that may ensue to it because of hi's conduct of the office, and, it might be that the friends of Mr. Griffith would wish him to be indemnified by bond executed by such Clerk or Deputy as he may select. I, therefore, state to you in answer to your direct question that it will be proper for Mr. Griffith to delegate some
145

one to take his place and perform his duties awaiting furtheir developments as to his physical condition.
Very sincerely yours, GEO. M. NAPIER, Attorney-G;eneral.
ASSOCIATION OF 1\IAil\lED WORLD WAR VETERANS RELIEVED OF TAX, UNDER STATUTORY PROVISIONS.
January 28, 1922. Hon. William A. Wright,
Comptroller-General, State Capitol.
Dear General Wright": Responding to your request, concerni'ng letter of Hon. J. D. Crump, Tax Collector of Bibb County, .as to persons subject to special occupation tax imposed by Paragraph 10 of the General Tax Act, relatirrg to exhibitions of boxing and Wrestling matches, I beg to say that the only opinion given by me in this connection was a verbal one to some ex-service men from Macon.
My casual opinion was that, under Section 994 of the Code, an associ'ation of "persons with one arm, or one leg" could, by complying with the provisions of that section, be relieved of paying any tax; but, upon carefully considering that section of the Code, it seems that that particular kind of occupation is not within the purview of said Code secti'on.
However, the provision in the 46th Paragraph of the General Tax Act for 1922 (See Georgia Laws 1921, Page 49) will relieve these veterans of the World War, if the entire proceeds are to go to the "charitable and benevolent purposes" of supporting the maimed and disabled soldiers.
My i'nformation was that an association of ex-service men composed only of men who had lost an arm or leg expected to conduct these exhibitions. A statement of the membership of the association, so constituted, supported by affi-
146

davit showing that fact, and the entire proceeds are for charitable and benevolent purposes, to-wit; to the support of the maimed and disabled ex-service men, would in my opinion reli'eve such association from any tax for boxing, sparring and wrestling matches.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
A BILL FOR ACCOUNTING AND SETTLEMENT AGAINST TWO SETS OF SURETIES, WOULD SAVE A MULTIPLICITY OF ACTIONS.
January 30, l922. Hon. R. A. Bell,
County Attorney, Grady County, Cairo, Georgia.
Your letter propounds the following questions:-
"When the Tax Collector of a County whose term expires on December 31st of a certain year, and who enters upon a succeeding term on January 1st, with the sureties on his official bond other than those on his official bond during the first term, dies in default to the County for certain taxes, collected and before final settlement, and where it is not possible from his records to determine just what amount and part of the default occurred in the first term, and what part in the last, against which set of sureties should suit be brought to recover the amount of his default as to taxes levied in September and collected the ensuing Fall and Spring (in the Fall while his old bond was in force and in the Spring when his new bond was in force)? Or should suit be brought in equity against both sets of sureties for the amount of the default?
"In 1918, the General Assembly enacted a law allowing the Tax Receivers of county taxes the same rate of commission as the Tax Collectors receive. Prior to that time they had been allowed one-half of what the Tax Collector received. In the case of Floyd County vs. Salmon, 151 Ga. 313, the Supreme Court held 'The standard by which the compensation is to be measured is, since the passage of the Act, the/ full amount paid the Collector, prior to the passage of that Act, one-half of the amount paid the Collector, . . . and is entitled to be paid for . . . services at the rate fixed in the old law until August 17, 1918, and at the rate provided
147

in the Act thereafter to the end of the year.' Where the County Commissioners, mistaking the effect of the law, pay the Receiver compensation for the entire year of the passage of the Act at the new rate, thereby paying to such Receiver more than he is entitled to under the decision noted above, is the surety company on his official bond liable for the amount paid to him in excess of his legal charges as fixed in , the decision above?"
"Where in a given year, that is from January 1st to DC.: cember 31st, three different persons serve as Tax Collector of a county; one from January 1 to July 15; another from July 15 to August 30; and the third from August 31 to December 31, should the commissions from that year's levy of taxes be divided ratably among the three Collectors according to the length of service of each one, or should the Collector who serves from August 31 to December 31, receive all the commissions from the year's levy and collection?"
1 : In my opinion a Bill for ,accounting and settlement
against the two sets of sureties, would save a multiplicity of actions, and would be the proper beginning of the litigation.
2: It would seem that the Surety Company would not be Hable for the excess amount of commissions paid to the Tax Receiver. The Receiver should, of course, return the amount received by him through the error of the County Commissioners, but the ordinary provisions of a surety bond do not contemplate that an excessive compensation will be voluntarily paid such an officer in settlement made by County officials. See:-
Haralson County vs. Golden, 104 Ga. 19. 3: The just and equitable rule i'n settling with several officials serving as you set out, would be to pay them ratably, either on the basis of the respective length of time each served, or for the proportionate amount of work done by each. A safe proceeding would be to file a petition in your Superior Court, bringing in all parties, asking the Court for direction. With assurances of high esteem and good wishes,
Very sincerely yours, GEO. M. NAPIER, Attorney-General.
148

,
CHAIRMAN OF COUNTY COl\11\IISSIONERS SHOULD NOT PERFORJ\1 THE DUTIES OF DEPUTY WARDEN.
January 30, 1922. Hon. G. A. Wallace,
Clerk Superior t:ourt, Leesburg, Georgia.
My Dear Sir: You inquire whether the Chairman of your Board of County Commissi'oners can legally perform the duties of Deputy Warden of the County, which latter office is under the control and supervision of the Board of County Commissioners. There are several obstacles to the holding of such an office by the Chairman of your Board of County Commissioners, which we will notice in their order: Section 5 of the Act creating the Board of County Commissioners (See Georgia Laws 1921, p. 519) provides:-
"That the holding of the office of County Commissioner shall disqualify any of said Commissioners from holding any other county office during the term for which they may have been elected."
What is a County office? A public office is the right, authority and duty created and conferred by law by which, for a given period, either fixed by law, or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the Government, to be by him exercised for the benefit of the public. The individual so invested is a publi'c officer. Mechem's Public Office and Officers, Section 1. Whoever holds a particular charge or employment effecting the Government, whether that Government be of the Nation, State, or County, would be deemed an officer.
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A deputy warqen, selected by the same authority that selects the warden, would be an officer in the sense contemplated in the provision that one of the County Commissioners of your County shall be disqualifi'ed to hold any other County office.
2nd: The inhibition contained in Section 259 of the Code forms another obstacle to the exercising of the duties of deputy warden by the Chairman of your Board of County Commissioners. See this section, which reads as follows:-
"No person shall hold, in any manner whatever, or be commissioned to hold at one time, more than one county office, except by special enactment of the legislature heretofore or hereafter made; nor shall any commissioned officer be dputy for another commissioned officer, except by such special enactment."
A special Act of the Legislature would relieve the situation, of course.
3rd: Public policy dictates that in a situation like the one presented, where the officer (the deputy warden is the same as the Chairman of the Board whi'ch elects the said deputy warden, the pe,rformance of whose duties are supervised by such a Board, the effect being that the warden is elected by himself, and two associates, and his work is passed upon by himself, public policy dictates that such a situation should not exist.
Trusting that I have fully answered your inquiry, I am, Si'ncerely yours, GEO. M. NAPIER, Attorney-General.
150

TAX RECEIVER'S COMPENSATION SAME AS TAX COLLECTOR'S.

February 1, 1922.

Hon. W. E. Denney,

Superintendent of Schools,

_

Franklin, Georgia.

My Dear Sir: Replying to yours of the 31st ultimo. My

construction of the law is that:

The Tax Receiver gets as his compensation exactly the

same the Tax Collector receives.

Section 130 of the School Code controls this matter and

f~lly answers your question regarding the commission of

the Tax Collector for collecting school taxes. 'Ehi's section

reads as follows:-

"It shall be the duty of the Tax Collector to compute and co!J.ect said taxes, keeping the same separate by school districts from the County and State funds, and monthly turn same over to the ~ecretary of such local school districts, as well as tax received for said district from railroads and other corporations that make their returns to the comptrollergeneral, taking the receipt for the same upon order from the County School Superintendent, and said Tax Collector shall receive as compensation thereof two and one-half percent of the amount collected up to eighteen thousand ($18,000.00) dollars and one and one-fourth percent on any additional amount collected."
Does the Tax Receiver render any service in this connection?
Very truly yours,
Q:EO. M. NAPIER,
Attorney-General.

DUTY OF CORONERS TO HOLD INQUESTS OVER DEAD HUMAN BODIES.
February 2, 1922. Hon. W. D. Mead, Coroner,
Lumber City, Georgia. My Dear Sir: Replying to your letter of the first instant, I beg to say that:
151

While Coroners have no vested right to hold inquests over dead human bodies, it is prescribed to be their duty to do so in accordance with the requirements of the Penal Code, Secti'on 1337. This section provides that Coroners shall take inquests over dead bodies in their respective counties as follows:-
1st: Of all violent, sudden, or casual deaths when there are no eyewitnesses to the killing, or cause of death, and such death occurs under suspicious circumstances.
The fact that a dead body has been found in a house where no persons were present at the time of the death would give a Coroner basis and ground for holding an inquest. In fact, usually a Coroner would be criticised if te did not hold an inquest under such circumstances. The 116th Georgia, page 23, in the case of Davis vs. Bibb County, it was held that power is delegated to any County to levy taxes to pay Coroners, and that under our Political Code a County tax shall be assessed "to pay Coroners all fees that may be due them for holding inquests."
Officers are presumed, under the law, to perform their duties, and, of course, your County Commissioners would have the right to call i'n question the propriety of an inquest; but, in law, the burden would be upon them to show that you acted without judgment and discretion, before the County would be relieved of paying your fees.
A provision is made in Section 1348 of our Penal Code, that where the verdict of a Coroner's jury suggests that death was caused by poison the Coroner shall have a competent and i'mpartial physician make an examination, to be paid for out of the County Treasury in a sum not to exceed twenty dollars.
It has been held in the 57th Georgia, page 347, that the Coroner has authority to employ a physician at the County's expense only where the verdict of the Coroner's jury suggests death by poison. Therefore, the matter of paying
152

the physician in the case you name is more difficult to determine than is the matter of your right to fees.
No book is provided by the State for a Coroner's docket. This you will have to provide at your own expense.
Trusting I may have fully answered the questi'ons in your letter, and with best wishes for your official success, I am
Very sincerely yours, GEO. M. NAPIER, Attorney-General.

BUREAU OF MARKETS HAS THE RIGHT TO DRAW UPON. STATE TREASURER FOR PART OF FERTILIZER TAX.

Ron. L. B. Jackson,

February 2, 1922.

Director Bureau of Markets,

State Capitol.

Dear Sir: Replying to your inquiry as to the right of

your Department to draw upon the State Treasury for the

part of the fertilizer tag tax allotted to the support of your

Department by Act of the General Assembly of 1921, I

beg to say:

My construction of the law in reference to the financial

support of the Bureau of Markets is:

1st: That you are enti'tled to draw the regular appro-

priation of $35,000 in accordance with the practice followed,

that is, in twelve equal monthly instalments.

2nd: You are entitled to receive two-thirds (2-3) of the

tax of thirty cents per to~ as the same is paid into the

State Treasury. That is, this twenty cents per ton is imme-

diately available for the support of the Bureau of Markets

when and as collected.

It is, of course, essential to pay the entire tax into the

Treasury as collected. Draft upon the Treasurer can be

made at any time, however, for an amount not exceeding

153

two-thirds (2-3) of ~he amount of the fertilizer tax aforesaid as collected and paid into the Treasury, not exceeding $65,000.'
Sincerely yours, GEO. M. NAPIER, Attorney-General.
GOVERNOR'S AUTHORITY. SALE OF FURNITURE, ETC., IN OLD EXECUTIVE MANSION.
February 3, 1922. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick: Referri'ng to the verbal request of your Executive Secretary, Miss White, for opinion with reference to the sale of furniture, and other personal property now stored in the old Executive Mansion, I beg to invite attention to the provision of Code Section 313, Volume 1 of Parks' Code:-
. "When any public property Ehall become unserviceable it may be sold or otherwise disposed of, by order of the proper authority, and an entry of the same shall be made in said book, and. the money received therefrom shall be paid into the Treasury."
The Supreme Court of Georgia has held in the case of: Dyer, et. al., Commissioners vs. Martin, et. al. 132 Georgia, page 445;-
"Public property becomes unserviceable in the purview of the Political Code, Section 278, so as to empower the proper authority to sell the same, where such property cannot be beneficially or advantageously used under all the circumstances."
In my opinion, all that is required is an order from you to the Public Custodian directi'ng the sale of the property
154

in question, and the delivery of the proceeds of such sale to the State Treasurer.
Of course, it is entirely within Your Excellency's discretion to withhold from sale any articles of furniture, or household effects deemed desirable for preservation to the State, and to give direction for the storage thereof until such time as it may again be used, or otherwise disposed of.
Respectfully yours, GEO. M. NAPIER, Attorney-General.
GEORGIA NORMAL AND INDUSTRIAL COLLEGE. RATE OF PAYMENT OF APPROPRIATION TO.
February 6, 1922. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick: You letter of the fourth instant is to hand, wherein you ask opinion as to what rate of payment you are authorized to make to the Georgia Normal & Industrial College, for the year 1922.
The language of the appropriati'on to this Institution is exactly as follows:- (See Georgia Laws 1921, p. 12)
"For the Georgia Normal and Industrial College the sum of $90,000.00 (provided that of this sum $90.000.00 shall be used for maintenance, including a Summer term, and $12,500 for carrying on extension work."
Construing this language, we find that the $90,000.00 must all be "spent for maintenance, including a Summer term" then follows the clause in the appropriation made, "and $12,500.00 for carrying on extension work." It would be impossible for the College to carry on any extension work except for the additional amount named in additi'on to the
155

$90,000.00 allowed for maintenance, and the Summer term. 'l'his additional amount is fixed at $12,500.00.
The punctuation in this item of the appropriation bill is faulty and misleading. very often in legi'slation the marks of punctuation are added by a clerk, and this duty, or privilege, as the case may be, is performed frequently in a capricious and novel way.
"Less care is apt to be taken in punctuation than in any other part of Bill Drafting, and the courts, with the exceptions noted later, continue to exercise comnlete control over punctuation whenever it is necessary to give effect to legislative intent.." .Jones on Statute Law !\laking, p. 39.
The appropriation for the Georgia Normal & Industrial College for the two years last past throws light on the situation. (See Georgia Laws 1919, p. 12.) The language there employed i's : -
"(m) For the Georgia Normal & Industrial College: $100,000.00 for maintenance, including a Summer term. For extension work the sum of $12,500.00."
Having regard for the history of this legislation, I find what is generally well known, that a cut of ten percent was made on the appropriation for all scholastic institutions probably without exception, for the years 1922 and 1923. Applying this basis to the appropriation for thi's college, the allowance would be for maintenance and Summer term, $90,000.00. For Extension work $12,500.00. Thus effectuating a cut of ten percent from the main appropriation, and leaving the item for extension work unchanged.
If the college should have the total appropriation for the two previous years cut from $112,500,00 to $90,000.00, the decrease would be at the rate of twenty percent, which would be wholly at variance wi'th the legislative intent.
But the construction of the language employed and the legislative intent, as well established and recognized, support the view indicated.
My opinion, therefore, is that you have the authority to pay to the Trustees of the Georgia Normal & Industrial
156

College its appropri'ation on the basis of one hundred two thousand, fi~e hundred ($102,500.00) Dollars.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
ASSESSMENT ON BANK STOCK MADE FOR DEPOSITORS ONLY.
February 8, 1922. Hon. T. R. Bennett,
Supt. of Banks, State Capitol.
Dear Sir: Replying to your verbal request for opinion on the question of whether or not money derived from assessment of stockholders can be used to pay off a loan made through the War Finance Corporation, beg to submit the following:-
Section 20 of Article 7 of the Banking Act of Georgia reads as follows:
" . . . and he shall immediately thereupon make an assessment upon the stockholders of said bank sufficient, when added to the cash assets so available for depositors to pay the said depositors in full."
Thfs assessment is made solely for the benefit of depositors and can not be used to pay off a loan made through the War Finance Corporation.
Yours very truly, SEWARD M. SMITH,
Assistant Attorney-General.
157

WAR FINANCE CORPORATION CLAIMS SHOULD BE ENTITLED TO PRIORITY.

Ron. T. R. Bennett, Supt. of Banks, State Capitol.

February 4, 1922.

Dear Sir: Replying to your verbal request of recent date for opinion on the question of whether or not the War Finance Corporation would come under sub-section 3, Section 19 of Article 7 of the Banking Laws of Georgia, beg to submit the following:

The War Finance Corporati'on was created by Congress as a war measure, an Act entitled "An Act to provide further for the national defense and security, and, for the purpose of assisting in the prosecution of the war, to provide credits for industries and enterprises in the United States necessary or contributory to the promotion of the war, and for other purposes."

Section 3115 of the U. S. Compiled Statutes provides that "The capital stock of the Corporation shall be $500,000,000.00, all of which shall be subscribed by th'e United States of America."

Owing to the fact that the United States of America owns all the stock and the Secretary of the Treasury supervises the said Corporation, it will be necessary to allow. them to come under the above menti'oned sections.

Trusting that the above will give you the information desired, I beg to remain,

Yours very truly,

SEWARD M. SMITH, Assistant Attorney-General.

158

DUTY OF COUNTY TREASURER TO PAY ALL ORDERS ACCdRDING TO DATE.
Hon. Hubert L. Culberson, County Treasurer, Fulton County, Atlanta, Georgia.
My Dear Sir: In reference to the question whether you, as County Treasurer, are authorized and required to pay over certain funds of Fulton County to cover appropriations made by the County Commissioners of Fulton County to certain benefacti'ons and public charities of Fulton County, I beg to say: This is, of course, not a matter which I would be expected to render an opinion of an official character, and this I will not undertake to do.
The result of my research and .consideration of authorities is that merely of a character intended to assist you in reachi'ng a safe conclusion in the matter.
The statute includes, among the duties of the County Treasurer:-
"To pay, without delay, when in funds, all orders according to their dates (or other debts due); and when not in funds, as hereinafter provided."
The orders referred to issue from the Ordinary, or from the Board of County Commissioners, as the case may be.
The Act of 1880, creating the Board of Commissioners for the County of Fulton contains, among other provisions, the following, with reference to the authority and powers of the Board:-
"And making rules ... for the promotion of health, as are not inconsistent with law, and to exercise such other powers as are granted by law, or are indispensable to their jurisdiction over county matters, and county finances."
Quite a lin~ of decisi'ons have .been handed down by our Court of last resort in reference to the duty of Treasurers in paying the orders received by them from County Commissioners.
159

It was held in the case of:- Shannon vs. Reynold&, 78th Ga. 764.

"Unless this Treasurer, who is the executive officer of the Ordinary, could show that the order on him was fraudulent; or that a mistake existed as to the amount found to be due, he could not go behind the judgment of the Ordinary, acting as County Commissioner, directing the .payment of this sum."
This case involved the payment of the County's indebt-
edness for the erection of a court house and jail.
In the case of:- Mitchell vs. Speer, Treasurer, 39th Ga. 59
the Court says:-.

"It is clearly the intent of the Code, Sections 548, 549, and

550, that, the county taxes shall be assessed specifically for

the several purposes authorized by law. Section 550 says

that the order of the court assessing the tax, shall specify

the percent levied for each specific purpose, and this just after

Section 548 has specified, in detail, the several purposes for

which county taxes may be laid.

.

"We think this is a wise provision. Every order assessing a tax should specify the percent laid for each of the nine
specific purposes mentioned in Section 548. And if there be
a tax laid for any purpose, not there included, by virtue of some other law, the percent laid for that purpose should be
stated in the order. The funds, when collected, should be dealt with in the same manner. The Treasurer should keep
a separate account of each fund, and each county order
should specify the fund on which it is drawn; and no order ought to be drawn on any fund not properly raised for the payment of the claim. It is intended that the order of the court, assessing the tax, shall be a sort of appropriation bill, and that the Ordinary shall draw it intelligently, in view of
the peculiar state of the pecuniary condition of the County. Such a cause will conduce to economy, to a full understand-
ing of county matters, and each person dealing with the county can then know the security he has for the payment of the promises made him. We deem this provision of the Code of great importance, and Ordinaries and Treasurers who neglect to conform to this salutary law are greatly to blame.
By the division of the funds into as many as nine or ten smaller funds, the public are made aware of the uses to which the taxes are to be applied, and a far better control over the public money is secured, and this is of great importance. The looseness heretofore existing has been a great evil, and the waste and misuse of the county fqnds is a serious
matter of complaint.".

The taxing powers of the counties can be exerci'sed under the Constitution of this State, for the following purposes only. "Educational purposes; to build and repair the public

160

buildings and bridges; to maintain and support prisoners; to pay jurors and coroners, and for litigati'on, quarantine, roads and expenses of courts; to support paupers and pay debts heretofore existing; to pay the county police, and to provide for necessary sanitation."
Constitution State of Georgia, Code Section 6562.
Section 513 of the Political Code provides as follows:-
"Section 513.: Objects of County Tax. County taxes shall be assessed for the following purposes:
1. To pay the legal indebtedness of the county due, or to become due during the year, or past due.
2. To build or repair court houses or jails, bridg-es or ferries, or other public improvements, according to the contract.
3. To pay sheriffs, jailers, or other officers' fees that they may be legally entitled to, out of the county.
4. 'ro pay Coroners all fees that may be due them by the county for holding inquests.
5. To pay the expenses of the county, for bailiffs at courts, non-resident witnesses in criminal cases, fuel, servant hire, stationery, and the like.
6. To pay jurors a per diem compensation.
7. To pay expenses incurred in supporting the poor of the county, and as otherwise prescribed by this Code.
8. To pay charges for educational purposes, to be levied only in strict compliance with the law.
9.. To pay any other lawful charge aaginst the county.
It next becomes. important to inqui're, who are paupers? The Code Section 553, thus answers the question:-
"Who are paupers? No person shall be entitled to the benefits of the provision for the poor who is able to maintain himself or herself by labor, or, if not, has sufficient means, and in cases where females ar~ unable to maintain themselves and the helpless children they may have also they may be aided to the extent required in the furnishing of food, clothing and shelter."
The term "paupers" may be used indiscriminately to designate poor and indigent persons standing in need of relief. The disability of the poor to maintain themselves
161

is a pecuniary disability. It might be said that the view of
the law as to the relief of the poor, and the furnishing of charitable relief to those helpless by reason of di'sease and deformity, especially infants, who are peculiarly helpless
and may be dependent upon charitable relief to prevent their becoming lifetime dependents upon the County or State, has been a progressive and broadening one. Anciently, in the time of the Inferior Court, the tax for the support of the poor could not exceed one-ei'ghth part of the general tax.
In some jurisdictions the County Commissioners are authorized to employ physicians for the poor throughout the
county. 30 Cyc. 1072, citing cases in Indiana and Wisconsin.
Treatment legally provided might be obtained at the expense thereof contributed to, i'n places located outside the county.
The question turns then upon the authority of the Board
of County Commissioners to bind the- Treasurer to pay the orders they issue.
In the case of The Neal Banking Company vs. Chastain,
121st Georgia 504, it was held:-
" . . . The Treasurer cannot go behind the judgment of the ordinary directing the payment of the sums set out in the orders, nor set up any want of authority in the ordinary to issue them, unless he can show that they were fraudulent or that the ordinary made a mistake as to the amount adjudged to be due. Shannon vs. Reynolds, 78 Ga. 761. We think it clearly appears upon the face of the orders th11t the ordinary acted within his jurisdiction. The orders are evidence of his judgment, and are as conclusive as any other judgment of that court upon matters devolving upon the ordinary of the county. In the case of Coleman vs. Neal, 8th Ga. 560 (2), it was held that 'After an order granted by the Inferior Court on the County Treasurer, to pay a creditor of the county so much money, it is not in the power of the treasurer to defend hinEelf for causes existing prior to the granting of he order. See Beall vs. State, 9th Georgia 367."
'l'he same decision further says 'the law will presume that those several officers performed their duties, unless
the contrary is shown.' In my opi'nion, the County Treasurer is authorized to
disburse the funds of the County on orders properly drawn
162

.

by the County Commissioners, provided each order specifies

the particular fund out of which the same is to be paid,

and provided the Treasury is in funds to allow payment

of same.

The payment of such order out of the proper funds, in

my opinion, would not subject the County Treasurer, or the

sureties on his bond to liability.

.

On the other hand, should the Treasurer deem any of

such orders to be issued by mistake, or fraudulently, or

even illegally, he would have the right to decline to pay

such orders until by mandamus proceedings a court of

proper jurisdicti'on could determine the validity of the

orders so issued; for "before an officer can be required to

pay out public money, or be justified in so doing, those who

demand its payment, should be able to show a clear pro-

vision of the law which entitles them to receive it."

Sincerely yours,

GEO'. M. NAPIER,

Attorney-General.

CANNOT PLEDGE AS COLLATERAL BONDS OR OTHER SECURITIES ALREADY SET APART TO THE SINKING FUND.
February 11, 1922. Mr. E. 0. Cook,
Ci'ty Treasurer, Carrollton, Georgia.
My Dear Sir: Replying to your letter of the ninth instant:
This is not a matter in which I can undertake to give an official opinion; but in which you should seek the advice of your City Attorney.
At the risk of bei'ng somewhat impertinent, for the sake of assisting you, and with the understanding that my advice is to be taken merely as thatof a friendly lawyer, I will say:
163

It was held by our Supreme Court in 129th Georgia, page 804:-
"A liability for a current expense can be incurred by a municipal corporation for any one year, provided there is, at the time of incurring the liability, a sufficient sum in the treasury of the City which may lawfully be appropriated to the payment of the liability incurred, or if a sufficient sum to discharge the liability can be raised by taxation during the current year; and such a transaction would not create a debt within the meaning of that word as it is used iri the Constitution."
The same is held by the Supreme Court in the case of; Tate vs. City of Elberton, 136th Ga. 301.
In my opinion, it would be hazardous, and not authorized by law, to pledge as collateral bonds or other securiti'es already set apart to the sinking fund.
Trusting this may be of service to you, I am, Sincerely yours, GEO. M. NAPIER, Attorney-General.
GENERAL EXPENSES INDUSTRIAL COMMISSION TO BE BORNE BY THE COMMISSION.
February 15, 1922. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor : In reference to the bills presented by the Industria:! Commission, with request for warrants to pay same, which matters necessitate a construction of the Act creating the Industri'al Commission, with particular reference to the manner in which the expenses of the Industrial Commission are to be raised and paid:
The Industrial Commission was created under an Act of the General Assembly, approved August 17, 1920.
164

By Section 52, of this Act, it is provided : -
"Be it further enacted, That (a) the Commission shall be provided with adequate offices in the Capitol or some other suitable building in Atlanta, in which the records shall be kept and its official business transacted during regular business hours; it shall also be provided with necessary office furniture, stationery and other supplies."
Section 76 of the Act is as follows:-
"Be it further enacted, That for the purpose of paying the expenses of this Commission, there shall be collected from insurance carriers writing this class of insurance in. Georgia, a tax of one per cent, of the gross earned premiums, this to be in addition to the tax collected by the Insurance Department under the General Tax Act. This one per cent commission shall be collected by the Secretary-Treasurer in the same manner said tax is now collected by the Insurance Department. After all the expenses, including salaries and traveling expenses of the Commission and such Deputies as may be authorized, have been paid, the remainder of the money collected by the Secretary-Treasurer shall be turned into the State Treasury in the manner prescribed by law."
I have been shown an opini'on by Honorable Graham
Wright, former Assistant Attorney-General, answering this
question:-
"By whom will the necessary furniture, supplies, printed matter, etc., for the use of the Commission, be furnished?"
In reply to this question, Mr. Wright gave opinion as
follows:-
"In answer to your second question, I beg to say:-Section 52 provides:-"That the Commission shall be provided with adequate offices in the Capitol or some other suitable building in the City of Atlanta, in which the records shall be kept and its official business transacted during regular business hours; it shall also be provided with necessary office furniture, tationery and other supplies." The evident intention of the Legislature was that the State should furnish the Commission with offices, office furniture, stationery, printed matter and everything necessary for the operation of the Department."
I concur in the opinion given by Mr. Wright, at that time.
However, construing both the provisi'ons of this law, in
reference to raising revenue, and defraying expenses, to-
gether, iny opinion is: That for permanent equipment of the offices of this Commission, including necessary furniture,
165

typewriter, etc., and stationery and supplies necessary to enable the Commi'ssion to begin its work, the expense should properly be borne by the State. But the cost of stationery and printing "and all expenses, including salaries and traveling expenses, incurred by the Commission in carrying on, are to be borne out of the commission on the gross earned premiums received from the Insurance Carriers, to be collected by the Commission, as provi'ded in said Section 76 of the Act, as above set out.
With assurances of highest respect, I have the honor to be, Sincerely yours, GEO. M. NAPIER, Attorney-General.

WHAT AMOUNT OF COSTS ARE OFFICERS OF COURT ENTITLED TO IN CASES INVOLVING VIOLATIONS OF GAME AND FISH LAWS?

Hon. J. Frank Rhodes,

February 16, 1922.

State Game and Fish Commissioner, State Capitol.

Dear Sir: Replying to your question: "What amount of

costs are officers of Court entitled to retain in cases tried in

the Courts, involvi'ng violations of the game and fish laws

of the State?"

Section 5 of the Acts of 1911-12, as amended 1916-19, as found on page 2 of the codification of the laws pertaining to your Department contains the following:-

"Each county warden shall receive one-fourth of all the fines and forfeitures and penalties collected in the county in which he holds the office imposed for violations of any of the game and fish laws of this State where he does not furnish the evidence necessary to convict. If he does arrest or cause the arrest, and furnish. the evidence necessary to convict, then he shall have three-fourths of such fines, forfeitures and penalties. Any person arresting, or causing to
166

be arrested offenders under any of the game and fish laws of this State and furnishing the evidence necessary to convict such offenders shall receive one-half of fines, forfeitures and penalties imposed and collected from such offenders and legal fees paid to constables. The remaining portion of fines imposed and collected shall be forwarded to the State Game Commissioner and by him turned into the Treasury to the credit of the game protection fund."
The usual misdemeanor costs are allowable, the law requiring the court in all cases, where conviction results, to impose "a fine of not less than $10.00, or more than $100.00, and all costs for each offense." See Section 12 of the Act.
Under the law, the fine goes to the State Game Warden, less the deductions made, as provided in Secti'ons 5 and 9 of this law.
The costs, of course, go to the officers of court, and only the costs, as the law provides for the immediate division and forwarding of balance of the fine by the Clerk of each Court, to the State Game Commissioner, and by him turned over to the State Treasurer to the credit of the Game Pro tection fund.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
NOTARY PUBLIC WOULD NEED TO RESIGN IN ORDER TO TIECOME COl\ll\HSSIONER OF ROADS AND REVENUES.
February 17, 1922. Miss Myrtie Wh:i'te,
Executive Secretary, State Capitol.
Dear Miss White: In conformity with your verbal request for some further opinion in reply to the matter submitted by Hon. A. I. Munroe, Ordinary of Calhoun County, as to the eligibility of George W. Hammond to accept the
167

office of member of the Board of County Commissioners, I beg to say that:
Accordi'ng to the letter of Judge Munroe to Mr. D. B. Blalock, the only alleged disqualification is that he is now a Notary Public:
In my opinion, Mr. Hammond is qualified to accept the office of Commissioner of Roads and Revenues of his County if he desires. to do so upon his resignati'on of the office of Notary Public and ex-officio Justice of the Peace.
The law prohibits the holding of two county offices by an individual at the same time; but it does not prohibit an i'ndividual from running for one office while he is holding to another, although, because of policy, and the public feeling about some offices, candidates for one office frequently resign another office held by them during their candidacy for the second office.
In my opinion, as above stated, Mr. Hammond is entitled to qualify as Commissioner of Roads and Revenues of Calhoun County upon hi's first resigning as Notary Public and ex-officio Justice of the Peace.
Very respectfully yours, GEO. M. NAPIER, Attorney-General.

CLAIMS FOR COST, WHETHER PRIORITIES AGAINST ASSETS OF INSOLVENT BANK.

February 13, 1922.

Hon. T. R. Bennett,

Superintendent of Banks,

State Capitol.

.

My Dear Sir: In your letter of the sixteenth instant, you

state as follows:-

"In the case of the Commercial City Bank, of Americus, which bank's affairs are in the hands of this Department
168

for liquidation, or resumption, the liquidating agent in charge advises that the Clerk of the Superior Court, and the Court Reporter, are insisting that bills due them by this bank, contracted before the bank closed be put in the class of preferred claims."
The Banking Law gives priority in the payment of debts due by an insolvent bank:
1st: Debts due the State of Georgia. 2nd: Debts due any county, district or municipalfty of the State, including unpaid taxes. The priority in favor of the State arises upon the principle that the English Crown had a prerogative right to preference. The pri'ority of the County rests upon the statute, which, of course, must be stri'ctly construed. In the case you present, there is no claim that could be pr~sented or maintained in law by the County. If the prerogative right of the county could be passed on to one of its citizens, even though an officer of the courts, it could as well be passed on to any others of the thousands having citizenship within its borders. Clai'ms for court costs are frequently reduced to judgment against particular property, or defendants, for use of the officers of court; but these claim~ would not be ~uable by the County nor capable o:l! being maintained as a priority in a contest over the assets of an insolvent bank. In my opini'on, the law does not authorize a preference in favor of a Clerk of the Superior Court, nor of a Court Reporter, for bills due them as such by the bank, when the bank's assets are being liquidated and distributed.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
169

SHERIFFS. HOW TRIED FOR MALFEASANCE.

February 18, 1922. Hon. Thomas W. Hardwi~k,
Governor of Georgia, State Capitol.
Dear Governor Hardwick: As to your verbal request for the law pertaining to proceedings against Sheriffs who are charged wi'th non-feasance in office, I respectfully submit the following:
Section 4920, of the Code provides:-

"If any Sheriff or Deputy fails to comply with the provisions of Section 4914, he shall be fined for a contempt, as the Clerk of the Superior Court is in similar case. Section 4897 as to removal also applies to Sheriffs."

Charges as to "any sufficient cause, including incapacity

or misbehavior in office, must be exhibited to the Court in

writing, and the facts tri'ed by a special jury, such (Sheriff)

being entitled to a copy of the charge three days before the

trial."

It has been held by the Supreme Court that "sufficient

cause" means a cause, or conduct relating to and affecting

the administration of the office, and material as to the

interests of the public.

With great respect,

Sincerely yours,

GEO. M. NAPIER,

Attorney-General.

170

,
PROVISIONS OF ELLIS HEALTH LAW WOULD BECOME INOPERATIVE UPON RECOl\11\IENDATION OF TWO SUCCESSIVE GRAND JURIES.
February 19, 1922. Doctor T. F. Abercrombie,
Commissioner of Health, State Capitol.
Dear Sir: In your letter of the thirteenth instant, you ask:
"In the event this measure is adopted by the recommendation of two successive grand ]uries in a given county as provided for in Section 3 of the Act, and in the event two successive grand juries have recommended the suspension of Sections 5 to 15 inclusive of the Act. as provided for in Section 3; and also in the event the budget for the current year has been adopted, as provided for in Section 6 of the Act, would the service of the full time Commissioner of Health, selected as provided for in Section 6 of the Act, cea~e immediately or would he continue in office until the unexpended balance of the budget be exhausted?"
"In the event tre grand jury has not recommended the adoption of this mtasure, thereby putting into effect Sections 5 to 15 inclusive, of the Act, has the County Board of Commissioners the right to make an appropriation of any amount for the purpose of protecting the health of the people of the County? If they have this right are the funds to be expended and the work anicipated to be conducted by the Board of County Commissioners, or. by the County Board of Health, as provided for in Section 2 of the Ellis Health Law?
It is my opinion that: The provisi'on contained in the last sentence of Section 3 of the Ellis Health Law (See Georgia Laws 1914, page 126), is as follo'Ys : -
"That the operations of said Sections of this Act shall likewise be suspended in any county upon the recommendation of two successive. grand juries of said county."
Should two successive grand juries recommend the suspension of the operations of Sections 5 to 15 inclusive of this Act, such suspension would be in immediate effect.
A County Board of Health has been created in every County in the State. Two of the three members of such
171

Board are permanent offi'cers of each County, to-wit; The County Superintendent of Schools, and the Chairman of the Board of County Commissioners.
The third member is a physician to be elected by the grand jury. Should the grand jury fail to elect such physician, that fact will not vacate the Board of Health. It can legally function wits its two permanent members, aforesaid, and will be authorized to exerci'se all the powers and authority of such Board of Health, including those set forth in Sections 1670 to 1676, inclusive, of Parks' Code.
The County Commissioners would have the right to make an appropriation for the purpose of protecting the health of the people of the County; such funds to be expended under the direction of the two members of the County Board of Health aforesaid, although no physician should be elected by the grand jury.
Respectfully submitted,
GEO. M. NAPIER,
Attorney-General.

CO-INSURANCE CLAUSE lN POLICIES NOT IN CONFLICT WITH LAW.

Hon. William A. Wright, Insurance Commissioner, State Capitol.

February 20, 1922.

Dear General Wright: Replying to yours with attached correspondence, in reference to insurance policies on property in Americus, Georgi'a, and in which you say:-

"l am, therefore, submitting the correspondence to you,
with request that you give an official ruling as to whether or
not it is a violation of either Section 2544, or of the Standard policy law for insurance companies to include in their policy contracts, by rider, a 75 percent co-insurance clause, or a
larger percentum co-insurance clause."

172

The ruling in the Parker case, 106th Georgia Reports, page 1, is very clear. The second headnote of this decision is as follows:-
"A stipulation in such a policy to the effect that should the insured fail to comply with a covenant on his part to 'at all times maintain a total insurance upon the property insured
. . . of not less than 75 per cent of the total cash value thereof' he shall be deemed to be a co-insurer to the extent of the deficiency, and in that event shall bear . . . propartion of any loss occurring under this policy, 'is not in contravention of Section 2110 of the Civil Code, which provides that 'all insurance companies shall pay the full amount of loss sustained upon the property insured by them, provided said amount of loss does not exceed the amount of insurance expressed in the policy,' and which declares that all stipulations in such policies to the contrary shall be null and void."
Sections 2544 and 2545 are to be construed together and, so construing them, it appears that the co-insurance clause is not in conflict with the valued poli:cy law, contained in Section 2545, of the Code.
And, in my opinion, it is lawful for the insurance companies to include in their policies a seventy-five per cent coinsurance clause.
All poli'cies should conform to the standard or uniform policy prescribed by the Insurance Commissioner, who would have the authority to approve any form of rider, containing clauses, or provisions, not in conflict with the law, and not containing any of the terms of such standard policy.
Trusting that this fully answers your fnquiries, I have the honor to remain,
Sincerely yours, GEO. M. NAPIER, Attorney-General.
173

TAX Fl. FAS. NON-TAXABLE.
February 24, 1922. Hon. S. G. McLendon,
Secretary of State, State Capitol.
Dear Sir: Your favor is received m which you ask the following question:-
"Suppose A should purchase all the tax fi fas issued by the tax collector, have the same transferred to him by paying principal, interests and costs up to the time of the transfer, would A be required to pay taxes on these fi fas to either the State or the County, and, further, would A's income from these tax fi fas, which is seven per cent per annum, be subject to Federal taxation as a part of his income?"
A tax fi fa issued by the State, or by a county, or by a municipal government, is an instrumentality fssued by such government, for ft is an agency, means or instrument issued, if in conformity with the law, for the purpose of raising money for the government.
Such "instrumentalities of government" are not taxable by the State, county, or munfcipality, and automatically, and ipso facto, income from them is not taxable by the Federal Government.
These tax fi fas, or instrumentalities, are made by our law negotiable. Section 1145, of Parks' Code provides:-
"Whenever any person, other than the person against whom the same has issued, shall pay any execution issued for State, county or municipal taxes;or any other execution issued without the judgment of a rourt. under any law, the officer whose duty it is to enforce said execution shall, upon the request of the party pEying the same, transfer said execution to said party; and said transferee shall have the same rights as to enforcing said execution and priority of payment as might have been exercised or claimed before said transfer. Provided, said transferee shall have said execution entered on the general execution docket of the superior court of the county in which the same was issued, and if the person against whom the same was issued resides in a different county, then also in the county of such per~on's residence, within thirty days from such transfer. And in default thereof such executions shall lose their lien upon any property
174

which has been transferred bona fide and for a valuable consideration before the record and without notice of the existence of such execution."
It may be noticed that the Sheriff is the proper officer to transfer tax fi fas issued by a county, in all counties having a population of less than 75,000: In countres having a population of 75,000 or more, the Tax Collector is authorized to make such transfers.
, Sincerely yours, GEO. M. NAPIER, Attorney-General.
SHERIFF MAY NOT EXACT PAYMENT OF COSTS IN ADVANCE IN CASES FOR ENFORCING COMPULSORY SCHOOL ATTENDANCE.
February 25, 1922. Hon. M. L. Brittain,
State Superi"ntendent of Schools, State Capitol.
Dear Sir: Replying to your request for opinion whether a Sheriff of this State may legally demand guarantee, or payment of costs in advance of services, in cases involving the enforcement of the compulsory education law:
A line of decisions of our Supreme Court, running back through the 9th Georgia, the 11th Georgia, and 33rd Georgi'a Reports, holds it to be illegal for the Sheriff to exact costs 'in advance.
In the Levar case, 103rd Georgia, page 42, the court held ' in the case of a Constable who took costs alleged to be due himself in advance, was guilty of the crime of extortion, as defined in Section 302 of our present Penal Code.
One of the principles of our fee system of compensating officers is, that fees await the performance and the ascertainment of service.
175

Only i'n those cases wherein the statute expressly provides for the securing prepayment of costs, has any officer any right to demand guarantee of payment, or prepayment of same.
In cases of enforcing the compulsory education law, there is no such provision; and it is, therefore, the duty of the Sheriffs to execute criminal process, and await the award of the costs in due course, by the Court disposing of the case, as is done in all cases i'n the criminal courts.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
WOMEN NOT SUBJECT TO STREET TAX.
February 25, 1922. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick: In response to your request for opinion, on the question propounded in the letter of Hon:S. J. Howell, Mayor of Adel, Georgia, who asks:-
"Will a female be entitled to vote, without first paying street tax as required of males, in the attached ordinance?"
In the Act conferring the privilege of the elective franchise upon women (See Georgia Laws 1921, page 107-, the following provi'so modifies the terms of the Act, to-wit:
"PJ'ovided, however, females shall not be liable to discharge any military, jury, police, patrol or road duty."
Any municipal ordinance requiring females to perform any road duty, or to pay any street tax, would, therefore, be unlawful and void.
Females are entitled to vote without first paying street
176

tax, as required, of males, in the Ordinance of the City of A del.
With high regards, I am, Very sincerely yours, GEO. M. NAPIER, Attorney-General.
INCUMBENT UPON ORDINARY TO CALL SPECIAL ELECTION FOR TAX RECEIVER.
February 25, 1922. Hon. Harry Johnson,
Ordinary, Floyd County, Rome, Georgi'a.
Dear Judge: I am this day in receipt of your favor requesting opinion as to your duty in the matter of calling an election to fill a vacancy in the office of Receiver of Tax Returns for your County.
You tell me that some days ago the Tax Receiver of your County died, and that, acting under the law, you have appointed a qualifi'ed person to assume and discharge the duties of this office.
This is what is termed as an accidental vacancy, and your acts and doings in reference thereto, have been in accordance with the provisions of the Code. Section 4881, of Parks' Code, which applies to the offi'ce of Tax Receiver, is as follows:-
"If a vacancy occurs (or will shortly) the Ordinary of the County where it happens shall give notice in one or more public gazettes of said county (if any), and at the court house, and at three or more of the most public places of said county, twenty days previously to the day of election, which shall be appointed by him."
Note the concluding phrase in this section, "which shall be appointed by him." That is to say, the time and date of such election to select a new Tax Receiver shall be named by the Ordinary.
177

It is mandatory upon the Ordinary to order an election, and to giv'e noti'ce (as prescribed) twenty days previously. But the naming of the time and date of the election is discretionary with the Ordinary.
Section 4796 confers upon Ordinaries, wh,en sitting for County purposse "original and exclusive jurisdi'ction over the following subject, to-wit:-
"In supplying, by appointment, all vacancies in county offices, and in ordering elections to fill them."
Mechem, in his work, "Law of Offices and Offi'cers," which is a standard authority, says, at Section 594 : -
"There is, however, a large class of cases where the question of acting or not is one resting purely in the discretion of the officer. Where this discretion exists, no other criterion can be resorted to. The pardoning power of the executive furnishes one of many illustrations of this rule. Analogous to but not identical with this, is the case in which the law requires the officer to 'act' in accordance to his discretion. Here, the duty to act is imperative, but the manner of acting is discretionary."
In the instant case your discretion is the sole criterion as to the date for the holding of the election to be called by you. It should be within a reasonable time. As to that numerous ci'rcumstances may need to be considered: the state of the work at present; the need of a Receiver at a particular time of the year; the character of services being performed by your present appointee to this office. All of these matters are solely for your consideration.
My opinion is, therefore, that it is incum}?ent upon you to call the special electi'on afroesaid, at such time as in your judgment and official discretion will best serve the interests of your great country.
Sincerely yours, GEO. M. NAPIER, Attorney-General.
GMN
178

COUNTY AUTHORITIES ARE WITHOUT AUTHORITY TO EMPLOY A DEMONSTRATION AGENT AND PAY HIS SALARY OUT OF THE COUNTY FUNDS.

March 2nd, 1922.

Hon. Will Smith,

Ordinary, Rabun County, Clayton, Georgi'a.
Dear Judge: My reply to yours of the 24th instant has been somewhat
delayed incident to my trip to Washington City.

I have gone to the Supreme Court and examined the opinion, not yet published, in the case of Floyd County.
The Court say that the County authorities are "without authority to employ a demonstration agent and pay his salary out of the County funds."

They hold that the legislature has power to authorize counti'es to employ such agents, and to levy taxes to pay them.

It has also been held by the Court that upon the adoption of the Ellis Health Law in a County, upon the recommendation of two successive grand juries, taxation for health purposes may be levied to cover salary of demonstration agent, as his work is along the lines of health and sanitation as well as agriculture.

Under this decisi'on it seems that you are without authority to pay out the county funds on the salary of a demonstration agent, unless the Legislature has passed a special act authorizing the same.

Sincerely yours,

GMN

GEO. M. NAPIER,

Attorney-General.

179

THE BANKING LAW GIVES PRIORITY IN THE PAYMENT OF DEBTS DUE BY AN INSOLVENT BANK.
February 13th, 1922. Hon. T. R. Bennett,
Superintendent of Banks, State Capitol.
My Dear Sir: In your letter of the sixteenth instant, you state as fol-
lows:
"In the case of the Commercial City Bank, of Americus, which bank's affairs are in the hands of this Department for liquidation, or resumption, the liquidating agent in charge ' advises that the Clerk of the Superior Court, and the Court Reporter, are insisting that bills due them by this bank, contracted before the bank closed be put in the class of preferred claims."
The Banking Law gives priority i'n the payment of debts due by an insolvent bank:
1st: Debts due the State of Georgia. 2nd: Debts due any county, district or municipality of the State, including unpaid taxes. The priority in favor of the State ari'ses upon the principle that the English Crown 'had a prerogative right to preference. The priority of the County rests upon the statute which, of course, must be strictly construed. In the case you present, there is no claim that could be presented or maintained in law by the County. If the prerogative right of the county could be passed on to one of i'ts citizens, even though an officer of the courts, it could as well be passed on to any others of the thousands having citizenship within its borders. Claims for ~ourt costs are frequently reduced to judgment against particular property, or defendants, for use of the officers of court; but these claims would not be suable by the County nor capable of
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being maintained as a priority in a contest over the assets of an insolvent bank.
In my opinion the law does not authorize a preference in favor of a Clerk of the Superior Court, nor. of a Court Reporter, for bills due them as such by the bank, when the bank's assets are being liquidated and distributed.
Respectfully submi'tted, GEO. M. NAPIER, Attorney-General.
TAX COLLECTORS COMMISSIONS ARE TEN PER CENT OF THE AMOUNT OF THE SPECIAL OR OCCUPATIONAL TAXES COLLECTED.
Hon. J. H. Hollingsworth, Tax Collector, Georgetown, Georgia.
My Dear Sir and Friend : Replying to yours of the 13th instant, I beg to say that:
The Comptroller-General holds, as you will find by reference to the top of page 7, of his pamphlet of special instructions to Tax Collectors, that your commissions are ten percent of the amount of the special or occupational taxes collected.
If you have any difficulty understandi'ng any point regarding your commissions, I suggest that you write direct to the Comptroller-General, and, then, if there is any legal question, he will refer same to me.
I am always glad to hear from you, and to serve you in every possible way.
Very si'ncerely yours, GEOI M. NAPIER, Attorney-General.
181

STATE TREASURY ENTITLED TO REMITTANCE OF AMOUNT OF CHECKS, WITHOUT EXCHANGE.
February 15, 1922. Hon. J. 0. Anderson,
Assistant State Treasurer, State Capitol.
My Dear Sir: Replying to yours of the thirteenth instant, in which you ask our construction of the law regarding the charge of exchange by the Depositories of the State against other depositories, on checks issued other than checks issued by the State Treasurer:
It i"s our opinion that, as among themselves, one State Depository may charge another State Depository exchange according to agreement or established custom; but, so far as the Treasury Department is concerned all items are to be paid and remitted at par, so that the State Treasurer will receive net remittance on all items transmitted through any depository of the State.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
DEALERS IN CIGARS SUBJECT TO TAX IN TOWNS INCORPORATED OR NOT.
February, 15, 1922. Hon. G. W. Hendricks, Ordinary,
Cartersville, Georgia. Replying to yours of the fourteenth instant, in reference to the effect of Paragraph 41 of the General Tax Act of 1921, relative to the sale of cigars i"n unincorporated towns and cities, etc., I beg to say that: A town is usually defined as any considerable aggregation of people dwelling in close proximity, and inasmuch as
182

the Act does not limit the tax to incorporated towns and cities, the tax is payable by all dealers i'n cigars, who conduct a business in a town as above defined, whether the town is incorporated or not.
Some communities may be towns without being so in the opinion of the inhabitants, and may never be incorporated. There can be towns entitled to i'ncorporation which have never yet adopted the use and prerogative of becoming an incorporated municipality.
A city is peculiarly a body of people raised to the dignity of a city by act of incorporation, and a town in this State cannot become1 a city wi'thout being incorporated by the General Assembly, as a City.
You are eminently correct in your judgment holding that inasmuch as the statute does not say incorporated towns or cities, persons selling cigars in a town which has never been incorporated are liable to the tax just as are dealers who conduct a business of that ki'nd in cities and incorporated towns.
Assuring you that it is a pleasure to have heard from you, and to have answered your inquiries, and with best wishes for your personal and official success, I am,
Very sincerely yours, GEO. M. NAPIER, Attorney-General.



COUNTY COMMISSIONERS ARE ENTITLED TO HOLD OFFICE UNTIL THE ELECTION IN THE COUNTY NEXT HELD FOR

COUNTY OFFICERS.

February 16, 1922. Hon. W. B. Gibbs,
County Attorney, Jesup, Georgia. Dear Sir: Replying to your questi'on. as to whether the County Commissioners of Wayne County are to be elected
183

this Fall, or at a subsequent election to be held in your County, I beg to submit:
This Act (See Georgia Laws 1921, p. 585) does not contain in its caption any reference to the abolition of the officers of the Commissioners of Wayne County, nor to any shortenfng of the tenure of terms, or office of the Commissioners.
Section 6445 of the Code provides :-
"No law, or Section of this Code, shall be amended or repealed by mere reference to its title, or to the number of the Section of the Code, but the amending or the repealing act shall distinctly describe the law to be amended or repealed, as well as the alterations to be made."
No amendment to any existing law is mentioned in the caption or the body of the bill. The tenure of office of a county offiical elected under a previous local law could not be shortened or changed in this manner.
Considering the enti're Act, it would, in my opinion, be necessary to construe the provision contained in Section 2 of said Act of 1921, as calling for an election to be held at the time the next general election of county officers of Wayne is held.
It is provided in the latter part of this section that the commfssioners elected shall hold office for four years, etc., indicating that the new arrangement would coordinate with the terms of the other officers of the County.
In my opinion, the present Commissioners are entitled to hold office until the election in the County next held for County officers.
Sincerely yours, GEO. M. NAPIER, Attorney-General.
184

GOVERNMENT LAND IS NON-TAXABLE.
March 3, 1922. Hon. John F. Harris,
County Commissi'oner, Cusseta, Georgia.
My Dear Sir: Further reply to yours has been delayed incident to my trip to Washington City.
The government now owns the land on the Reservation, and the soldiers therein have their homes on land of the government, but within the State of Georgia.
As I understand, the extent of the conveyance made by your people and also the effect of the condemnation proceeding, locates the homes of the soldiers on property of the Federal government, but they also own property in the State of Georgi'a. The Government land is non-taxable, but the personal property of the officers and men should pay their just proportion of the burdens of taxation.
The United States Supreme Court has held that "The taxing power of the State is one of its attributes of Sovereignity; it exists independently of the Constitution of the United States, and may be exercised to an unlimi'ted extent, except so far as it has surrendered to the Federal Government."
21 Lawyers Ed. U. S. Supreme Court Reports, p. 787, citing a great many cases.
If the deeds do not contain any reference to surrendering the power of taxation of the personal property, then request should be obtained from the Commanding Officer. to allow the Tax Receiver, or his representative to enter upon the Reservation and receive returns of personal property.
Much will depend upon the attitude and the co-operati'on of the officers.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
185

COMl\IISSIONS LEGALLY ISSUED TO JUSTICE OF THE PEACE IF VACANCY IN OFFICE EXISTED.

Hon. Thomas W. Hardwick, . Governor of Georgia, State Capitol.
Dear Governor Hardwick: In re: 921st District, Muscogee County.

March 9, 1922. Justice of the Peace,

Returning herewith all papers in the above matter, we beg to say that:
This office was informed that a vacancy existed i'n the office of Justice of the Peace of the 92lst District, Muscogee County, and we advised you, under date of February 20th, that, when a vacancy existed, it was the duty of the Ordinary to fill same by an appointment, and that you should commission such appointee.
Whether 'or not a vacancy existed in that di'strict is a question we were not called on to decide. We now affirm our previous ruling, but we do not pass on the question of the existence of a vacancy at the time Judge Gammon was appointed. However, if a vacancy existed in fact, the appointment of Judge Gammon was legal, and his commission entitles hi'm to the office. It is merely a question of fact as to the existence of a vacancy, and it might be better to have a hearing on the matter and let both sides appear with their witnesses, in order that the facts may be developed.
If Judge Gammon was appointed ~he'n a ~acancy actualiy existed in the office, then his appointment is valid, and a commission should not be given Mr. George. Mr. Wohlwen-
186

der:s letter of February 19, contained the statements of facts upon which our opinion was based.
Respectfully submitted, GEO. M. NAPIER, Attorney -General.
COST OF PRINTING REPORTS OF DEPARTMENT OF COMl\IERCE AND LABOR PAYABLE OUT OF STATE PRINTING FUND.
March 9, 1922. Hon. H. M. Stanley,
Commissioner of Commerce and Labor. State Capitol.
Dear Sir: I am in receipt of yours of the eighth instant, in which you ask:-
"Please advise me, under the Act creating the Department of Commerce and Labor, the cost of the printing necessary to maintain the Department shall be borne by the general printing fund, or from the contingent fund appropriated for the incidental and traveling expenses of the Department?"
The Act of 1911, Section 1, provides that:-
"The office of said Department (Commerce and Labor) shall be kept' in the Capitol, and shall be furnished and provided for, as are other Dr.partmental offices of the State."
In Section 6 it i's provided that the annual reports of said Department "shall be printed and paid for by the State, just as the reports of other public offices are printed and paia for."
With a few exceptions the reports of the various Departments of the State Government are printed and paid for by the State, and out of the Printing Fund.
Among the excepted Departments are those of Education, Agriculture, Railroad Commissi'on, Prison Commission, and Geological Survey. However, the Acts creating andrelating to those Departments provide for a fund out of which to pay for their printing.
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In the other Departments and public offices, the expense of the necessary printing it payable out of the Printing . Fund.
For these reasons i't is my opinion that the cost of printing necessary for your Department, as well as the expense of the printing of your annual report should be paid out of the Printing Fund.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
COUNTY AUTHORITIES CAN CONTRIBUTE TO PAYMENT OF SALARIES OUT OF ANY FUNDS OF THE COUNTY NOT RAISED OR SET ASIDE FOR A SPECIAL PURPOSE.
March 18, 1922. Prof. J. K. Giles, Assistant Director,
Georgia State College of Agriculture, Athens, Georgia.
My Dear Si'r: You ask:-
"Can County Commissioners, or Ordinaries, pay the County's part, of tne County Agent's salary out of fines, fees and forfeitures ?
"Could they pay him as Supervisor of the County Farm, making it a demonstration farm?
"May the Board of Education employ agents as instructors in agrirulture and home economics, or as Assistant to
the County Superintendent of Education, or as Supervisor of these subiects in the Common Schools of the Counties?
"In case the Board of Education does not have sufficient funds in hand at this time, may such Board request emergency educational funds from the County Commissioners for this purpose ?"
In my opini'on: 1st: Yes, County authorities may legally contribute to the payment of such salary out of any funds of the county, not raised or set aside for a special purpose, which funds
188


have not arisen from taxaton. (Provided that by special Act of the Legislature, any County might raise money .to be expended for the salary of a County Agent.)
2nd: By making the County farm a Demonstration and Experiment Farm, for educational purposes, and by arranging for pupils of the Common Schools to attend the Agricultural instruction and demonstration to be afforded, the County authorities (the Ordinary, or Commissioners, as the case might be), would be authorized to employ a County Agent and pay his salary.
3rd: I can find no lawful obstacle nor objection to their doing so.
4th: There is no provision for the lendi'ng of money by the County Commissioners to the Board of Education. The assistance to be rendered by the Commissioners to the County Board of Education would be restricted to the amount of funds available under the preceding sections hereof.
It is pertinent to observe in this connection that the li'ne of education carried on, and now capable of broad extension by the Farm Demonstration Agents is basic, and is of the highest importance in the development and progress of our State. The Anglo-Saxon has always been a lover of the home acre. His peculiar successes have been built upon his skill and mastery in breeding flocks and herds, in the cultivation of the soils, progressively increasing in fertility. These great objectives are the ultimate goals of education; and concomitantly, the art of home making, domestic sciences, culinary supremacy, and dependable sanitation.
Briefly speaki'ng, the laws of our State tend to encourage all these great constructive principles of real and successful education.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
189

GOVERNOR HAS AUTHOIUTY TO REQUIRE ITEMIZED STATEMENT OF EXPENSE ACCOUNT.
March 20th, 1922. Hon. L. B. Jackson,
Director Bureau of Markets, State Capitol.
My Dear Sir: Yours received, to which is attached copy of a statement of expenses, furnished by your Department, to the Execltive Department.
You quote sub-section (e) of the General Appropriation Act, 1921 (See Georgia Laws, 1921, page 8), which reads as follows:
("The Governor shall require of the Superintendent (or the Treasurer, or official having charge of the finances of any institution or department) a monthly statement of all expenses, itemized and sworn to before issuing any warrants.)"
His Excellency, the Governor, may deem it essential to have very fully itemized statements, and, on the other hand, he may not do so. That is a matter dependi'ng not on any law, but upon his own discretion and opinion.
In the statement handed me, I would suggest at least these changes:
"J. H. Mills .............................. $77.00"
If this is for expenses on a trip for your Department, it would seem that you might state:
"J. H. Mills, trip to Tennessee, including railroad expenses, itemized statement of which is on file in this office ................ ............... $77.30." "Times Publishing Company ............ $6,395.65"
In all instances, the safe way would be to have duplicate or triplicate copies of every such statement, or invoice, furnished you, and you mi'ght state that item thus:
"Times Publishing Company, as per itemized statement hereto attached, marked Exhibit 1, $6,395.65."
These illustrations will probably suffice.
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.
If the Governor desires a fuller statement than that suggested under the Mills item, it will be lawful to require it. This province it is not my purpose to invade. But with the minute 1letai1s of file in your office, in easy reach for ready reference, the idea I suggest may meet the situation. However, if the Governor decides that he desires to have assembled in one place in the Capitol the itemized records of all payments of money, it will be within the scope of the law to require every item on your statement to be itemi'zed in fullest detail.
Sincerely yours, GEO. M. NAPIER, Attorney-General.
EXEMPTION FROl\1 JURY DUTY OF l\IILITARY PAY l\1El\IBERS.
Hon. Thomas W. Hardwick, Governor of Georgia, State Capitol.
Dear Governor Hardwick: I have the honor to acknowledge the receipt of your letter with reference to attached memorandum of the Adjutant General of Georgia, and correspondence thereto attached. Said documents are herewith returned.
These matters pertain to the legality of the exemption of certain pay-members of the volunteer military forces of the State from Jury duty.
The law creating these exemptions is as follows: Section 871 of the Penal Code, in enumerating various classes of persons who are exempted from "all jury duty" mentions: "The special pay members of any company of volunteer
191

forces of the State, whose certificates of membership, signed

by the company commander, and attested by the first ser-

geant, whq produced in any Court, shall be evidence of the

right to the exemption."

.

This is founded upon the Act of 1884-5. Section 1413 of the Penal Code reads as follows :

"1413. Exemption from road duty, jury duty, and street tax. Every officer and enlisted man of the aforesaid military forces shall be exempt from road duty and street tax during the time of his service. Each company of the military forces shall have the privilege of bearing upon its rolls a class of membership, not to exceed thirty in number, to be known and designated as 'special pay members,' who upon paying a sum of money, as prescribed by said company, not less than twenty-five dollars per annum to said company, shall be exempt from jury duty, road duty, and street tax so long as such membership is continued. Certificates of membership shall be prepared and signed by the company commander and delivered to each of the special pay members of the company, and when produced in any court of this State shall be evidence of the right of the holder thereof to the exemptions herein granted."
It was stated in the publfc prints sometime since that
Judge Pendleton, of the Fulton Superior Court had declined
to recognize these exemptions as binding on the Court, even
declaring the law to be unconstitutional. The other judges
would probably follow this construction.
A test case may be necessary.
In order to render temporary assistance to the militaman
mentioned in Captain O'Keefe's letter, I took the liberty of
wri'ting a letter to Judge Pendleton copy of which is hereto
attached.
Respectfully submit~ed,
GEO. M. NAPIER,
Attorney-General.

I !J2

BUREAU OF MARKETS HAS RIGHT TO USE FERTILIZER TAG FEES FOR EXPENDITURES FOR ANY WORK DONE IN FURTHERANCE OF ITS DUTIES.
March 25th, 1922. Hon. L. B. Jackson,
Director Bureau of Markets,
State Capitol.
Dear Sir: I have before me yours of even date wherewith you ask:
"On March lOth la~t we made a requisition to the Governor for a specified sum out of the sixty-five thousand ($65,000.00) dollars provided by Act of the General Assembly of 1921, as is shown on page 101, of the Acts of 1921. A warrant has not been issued, the reason being given that this requisition covered some items contracted prior to 1922, .and was not therefore lawful."
"Every item contained in our requisition of March lOth was for work required to be done by the Bureau of Markets by the provisions of an Act approved August 21, f.Jl7. Our requisition appears to us to be perfectly regular and lawful."
"We want your opinion as to whether or not our action is lawful in paying bills contracted prior to 1922 out of the fupnd provided under the Act as shown on page 101 of the Acts of 1921."
The Act of 1921, giving the Bureau of Markets two-thirds (2-3rds) of the fertilizer inspection fees, is entirely distinct from the General Appropriation Act making certain allowances available for the years 1922 and 1923.
The portion of the Act (See Acts 1921, pages 101-2), pertinent to this discussion is as follows:
"Two-thirds of the amount arising from the said inspection fee of 30 cent3 per ton on all fertilizers hereinbefore referred to or so much of said amount as may be necessary shall be paid to the Department of Agriculture for the use of the Bureau of Markets within said Department, in furtherance of the duties impoo:ed upon, and the work required to be done by the said Bureau of Markets by the provisions of an Act Approved August 21, 1917."
In my opinion this money is available, as paid in, for, expenditure by your Department for any work done, or ex-
193

penses incurred in furtherance of the duties imposed upon

your Department under the act of 1917.

"In furtherance 'of" means in promotion of, in aid of, by

way of assistance in, etc., etc.



There are no words of limitation in the Act forbidding the

use of the money arising from the fertilizer fees in payment

of expenses i'ncurpred previous to-1921.

You have shown to me requisition on your Department

for the sum of $1,563.60 in favor of the Port and Harbor

Commission, part of the funds being for salaries and ex-

penses incurred previous to December 31, 1921. The prin-

ciple which would authorize your Department to be drawn

upon for funds to pay these expenses would authorize you

to expend the money. arising from the portion of the fer-

tili'zer fees due your Department.

In my opinion it is entirely legal, and within the contem-

plation of the statute referred to, to pay your Department,

the portion of .the fertilizer fees due under the Act, and for

you to expend the funds in payment of expenses incurred

in furtherance of the work done, and duties imposed, under

the Act of 1917, although such expenses have been incurred

prior to the year 1922.

Respectfully submitted,

GEO. M. NAPIER, I Attorney-General.

INDUSTRIAL COMMISSION NOT REQUIRED TO REFUND AMOUNT PAID BY STATE FOR CERTAIN ARTICLES.
March 27th, 1922. Hon. H. M. Stanley,
Chairman Industrial Commission, State Capitol.
Dear Sir: Replying to your written request for opinion as to the liability of the Industrial Commission to refund an amount paid by the State for certain articles in the nature of
194

-.
offfce supplies used to start the Commission off in business when it was established and began to function on March 1st, 1921: I have referred to my written opinion furnished to the Governor on February fifteenth, 1922, in which I referred to an opinion of the Honorable Graham Wright, former Assistant Attorney-General, which was dated September 24th, 1920. I quote from the opinfon of Mr. Wright as follows.
"In answer to oyur second question, I beg to say Section 53 provides:-'That the Commission shall be provided with adequate offices in the Capitol, or some other suitable in the City of Atlanta, in which the records shall be kept and its official business transac~ed during regular business hours; it shall also be provided with necessary office furniture, stationery and other supplies.' The evident intention of the Legislature was that the State should furnish the Commission with offices, office furniture, stationery, printed matter and everything necessary for the operation of the Department."
I concurred in the opinion given by Mr. Wright as above set out, and am still of the same opinion.
If these supplies were purchased by the Commission and paid for by the State at the time the_ Industrial Commission began to function, the bill was properly pai'd by the State, and there would be no justice in the repayment of this bill by the Industrial Commission.
The provision of the law that the Commission should be furnished with the necessary office furniture, stationery and other supplies shows clearly the legi'slative intent that the State should furni'sh the Commission with everything needful for the operation of the Industrial Commission. In fact, the Industrial Commission was a creature and child of the State, and it was fully the legislative intent that the Commissi'on should be taken care of until it had passed its initial experimental stage and had reached the point where it could fully function and be self-sustaining.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
195

INSURANCE COMMISSIONER CANNOT REFUSE TO ISSUE LICENSES, IF REQUIREMENTS OF INSURANCE LAWS OF GEORGIA ARE MET.
March 25th, 1922. Hon. William A. Wright,
Comptroller General, State of Georgia, Atlanta, Ga.
Dear Sir : Your letter of March the 23rd, enclosing charter granted by the Secre~ary of State to the Great American Fraternity, with newspaper copy of petition for said charter, and also petition of that organization to your department for the issuance of a license to permit its operation, and also a formal protest filed by Joe P. Bowdoin, G. M., of the Grand Lodge of Masons of Georgia, setting forth objections against the issuance of said lceinse, received and contents noted.
You ask the questi'on whether or not your department can refuse to issue license permitting the said organization to conduct business in accordance with the published notices, if the requirements of the insurance laws of Georgia are met.
I find no provision of law that would warrant you to decline the issuance of the license as requested.
If the Grand Master of the Grand Lodge of Georgia thinks that the words "The Great American Fraternity" infringes upon the name Free and Accepted Masons and the use of its emblems, then his remedy would be by way of injunction in the courts.
Section 1994, Park's Annotated Code of Georgia. _ United Order of Odd Fellows et. al. vs. Emory 140/423. The above code section and Georgia case fixed the method to proceed in the case of an infringement upon the name of a secret order. Trusting that the above covers your inquiry fully, I am,
Yours very truly, GEO. M. NAPIER, Attorney-General.
196

CHECK REQUIRED TO BE CERTIFIED TO BY OFFICER OF BANK.
Hon. T. R. Bennett, Supt of Banks, State of Ga., Atanta, Ga.
Dear Sir: In compliance with your verbal request of this date for opinion on the question, whether or not the attached check certified to by a bookkeeper of the Commercial Bank, Savannah, Georgia, is a proper certification, beg to submit the following:
Section 37 of Arti'cle 19 of the Banking Act of Georgia reads as follows :
"No check shall be certified except by the president, a vicepresident, cashier, or an assistant cashier of a bank x x x x."
The check in question is i:wt certified to by the proper officer, therefore, it is my opinion that the check i's not a good and valid obligation against the bank.
I am herewith returning to you the file connected with this case.
Yours very truly, SEWARD M. SMITH,
Assistant Attorney-General.
LEGISLATURE CONTEMPLATED SCHOOL DISTRICTS SHOULD NOT BE CARVED OUT OF MORE THAN ONE COUNTY.
April 8th, 1922. Hon. M. L. Brittain,
State Superintendent of Schools, State Capitol.
Dear Si'r: Yours with the attached two letters of Messrs. Boykin & Boykin, of Carrollton, Georgia, received:
197

It seems to me clear that the Legislature contemplated that school districts should not be carved out of more than one County. This is expressly held in the case of:
Edal,do vs. Southern Railway Co., 129 Ga., 662. If I were the Attorney advising the prospective purchasers of the bonds, I would turn the bonds down upon this decision. Really, there would be nothing else for me to do until the Supreme Court shall expressly hold that a school di'strict may be established out of territory in more than one county, and the procedure in collecting the taxes to meet the bonds would appear hazardous and extremely doubtful. The incoming Legislature could amend the law, unless some constitutional obstacle exists requiring the amendment to the Constitution.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
SCHOOL BONDS ARE PROPERLY SUBJECT TO THE OBJECTION OF AN ATTORNEY.
Aprii lOth, 1922. Hon. M. L. Brittain,
State Superi'ntendent of Schools, State Capitol.
Dear Sir: Yours with the attached two letters of Messrs Boykin & Boykin, of Carrollton, Georgia, received.
The question involved is whether the school bonds voted by Villa Rica School District number 40, are properly subject to the objection of the Attorney, who in passing upon the validity of the bonds for the expectant purchaser of the same. The trouble is occasi'oned, as we learn from the correspondence, by reason of the fact that this school district is made up of parts of the Counties of Carroll and Douglas.
I
198

Our Supreme Court in the case of:
Edalgo vs. Southern Railway, 129 Ga., 258,
raises tlle question, whether a school district may be formed out of more than one county.
In the opinion of Mr. Justice Cobb in said case it is stated:
"The School District i~ a new creation. It is an innovation. How must it be classified; as belonging to political divisions such as counties and militia districts, or with municipalities? A municipality may be located in two or more counties; but whenever this has happened, confusion and inconvenience have inevitably resulted. It is to be noted that in the enumeration school districts follow counties and militia districts and precede municipal corporations. Is it not more reasonable that the people intended that thend new ppolitical division, school districts, should be of the nature of militia districts, that is, wholly within the limits of one county, than that they should take on the characteristics of the municipal corporation and be subjected to all the confusion and inconvenience necessarily attending a political division rent asunder by 11 county line? It is by no means free from serious doubt that a school district can be laid out so as to embrace territory situated in two or more counties. But we will not rule the present case on this point, and our utterances on this subject are merely to call attention to the grave doubts that arise as to the nower of the General Assembly to create school districts the territory of which is located in different counties."
Should objectfon be made to the collection of taxes for the redemption of the school bonds to be issued by this school district, the obstacle interposed by this decision of the Supreme Court would be serious. The purchaser of .the bonds might well consider the hazard and uncertainty of enforcing the collection of these bonds if litigation should ari'se, over the collection of the taxes in the district, for the purpose of raising the necessary funds. Of course, the objection to the bonds as issued could be met later by a revision of the School district, conforming its terri'tory to the county, or by proper amendment to the law, which, as indicated, in the opinion above quoted, might require a Constitutional Amendment.
Respectfully submitted,
GEO. M. NAPIER, Attorney-General.
199

THE TERM FRESH WATER DRAIN HAS REFERENCE TO AN ARM OR BRANCH OF ANY FLOWING STREAM.
April 26th, 1922. Hon. J. Frank Rhodes,
Commissioner of Game and Fish,
State Capi'tol.
Dear Sir: I am in receipt of yours in which you ask opinion as to the construction of section 603 of the Penal Code, with particular reference to placing traps, etc., in streams, defining fresh water drains, etc.
The term "fresh water drain" has reference, obviously to an arm or branch of any flowi'ng stream, through which water flows, or into which fresh water might back. As long as the water in such drains is fresh, or particularly so, and so long as fish can naturally have "free passage" through such stream or "fresh water drain," it is unlawful to place traps, nets, seines, or other device for catching the fish in any such stream, or fresh water drain.
In protecting fish from capture such traps, nets, sei'nes, etc., it seems that the law contemplates that fish shall have ingress and egress through every stream or drain. Indeed, they are to have "free passage."
When a drain, by reason of non-flowage, is permanently cut off from the body or stream of water which has been flowing through it, it may no longer be termed a fresh water drain, and, in such event, the fish in the drain could be taken with nets and seines, wi'thout regard to keeping one half of the channel of the drain must be left open, regardless of the to the letter of the law, and would likewise give the persons owning land near the mouth of the fresh water drain an unequal advantage in the matter of taking fish over such owners as might live further up the drain.
The term "low water mark" which does not apply to drains, i~ the record low water mark of the flowi'ng of water in
200

streams. In fresh water drains, low water mark or high water mark is not to be taken into account. One-third of the channel of the drain must be left open, regardless of the "low water mark" in such drain, so long as it remains a fresh water drain.
Respectfully submitted, GEO. M. NAPIER, Attorney-General
WOMEN SUBJECT TO POLL TAX.
Aprilllth, 1922. Hon. John R. Dickenson,
Tax Receiver, Monroe, Georgia.
Dear Sir: Responding to yours of the tenth i'nstant, asking that we give you our opinion as to women paying poll tax for the year 1922, I beg to say that:
It is obligatory upon all women, of this State, between the ages of twenty-one and sixty, to pay a poll tax of one dollar per year. Thi's law is effective from January 1, 1922..
You understand this is to aid the educational fund, and the payment of this poll, or capita tax, is just as obligatory upon women as upon men.
Women should return a poll tax, even if they have no property, to the Tax Recei'vers, who may well devote considerable attention to the ingathering of this poll tax, because, in their entirety these taxes will very considerably increase the fund for the aid of education.
With best wishes for your personal and official success, lam,
Very respectfully yours, GEO. M. NAPIER, Attorney-General.
201

CLERKS SUPERIOR COURT ENTITLED TO FEE FOR ENTERING CERTIFICATE ON DEEDS, ETC.
April 12th, 1922. Hon. J. C. Cooper,
Secretary County Officers Associ'ation of Georgia, Milledgeville, Georgia.
My Dear Mr. Cooper: Your recent letter came during my absence from the office, and now I am replying at the earliest opportunity to consider the question propounded in your letter.
You ask:
"When a deed or mortgage or other similar instruments are filed for record, is a Clerk of Court authorized to make a charge of 50 cents for the certificate of record thereon? As I see it, authority for this charge is contained in Code of Georgia, Volume 1, section 5995, page 1378, being the fifteenth fee item on said page which read~ for 'certificate and seal 50 cents'."
In my opinion, should the Clerk of the Superior Court enter upon the deed, mortage or other like instrument of writing a certificate in substance as follows: "I hereby certify that.this conveyance (or instrument) was filed for record," etc., and sign the same, it would be deemed a certificate, and for such certificate the law authorizes the Clerk. of the Superior Court to charge a fee of fifty cents.
The law requires Clerks to keep a filing docket on which there must be entered the date and hour of the filing of deeds, mortgages, etc.
The language of the law (Code section 3320) i's as follows:
"The said Clerk is required to keep a docket for such filing, showing the day and hour thereof, which docket shall be open for examination and inspection as other records of his office."
For this filing the Clerk is allowed a fee of ten cents for each instrument so filed.
The formality of the record of deeds, etc., is considered
202

.
sufficient when a mere notation is entered thereon, showing the book and page of the record, but, if the Clerk actually enters thereon a certificate as indi'cated above, he is entitled to charge for such certificate the fee of fifty cents allowed ih the statute fixing the fees of Clerks of the Superior Court.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
ORDINARY'S DUTY TO EMPLOY COUNSEL TO DEFEND SUITS AGAINST THE COUNTY.
Ron. G. W. M. Tatum, Chairman County Commissioners, Trenton, Georgia.
My Dear Sir: I am in receipt of your favor wherein you state:
"The Seymour Construction Company recently brought suit .Dade County, to recover an amount claimed due them on road construction in Dade County. Please read the Act of 1914, page 346, and decide whose duty it is to defend said suit, whether the Board of Roads and Revenues of Dade County or the Ordinary of the County, or both the Board and the Ordinary?"
"Whose duty is it to employ the Attorney?"
Upon careful readi'ng and consideration of the Act of 1914 referred to, my conclusion is that the Ordinary of Dade County, was, by this Act divested of his authority over county affairs, only as to the construction of roads and bridges, and all supervision of roads and bridges, and all bond issues of said county for road purposes.
The Constitutional scheme of county government is that the powers in relati'on to roads, public buildings, taxes and other county matters are to be exercised by the Ordinary except where the General Assembly confers such powers
203

upon County Commissioners of a particular county; when the administration of county affairs in a particular county is lodged with the Commissioners, the power over county matters usually exercised by the Ordinary devolves upon them and they may discharge such functi'ons with reference to county matters as are conferred on them by the Act of their creation:
Dyer vs. Martin, 132 Ga. 447. In the instant case, the power conferred by Statute upon the Ordinary of Dade County "in examining, settling, and allowing all claims against the County," and in exerci~ing other powers as are granted by law and as are indispensable to his juri'sdiction" are not conferred by the Act of their creation upon the Board of Commissioners of said county. It is, therefore, my opinion, that it is the duty of the Ordinary of the County of Dade to take all needful steps, including the employment of counsel to defend the said suit against the County.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
PROPERTY NOT INCLUDED IN BONDED DISTRICT TAX SHOULD NOT BE SPREAD OVER SAME.
April 13th, 1922. Hon. J. T. Goree,
County Superi'ntendent of Education, Donaldsonville, Georgia.
My Dear Sir: We are only to-day in receipt of copy of your letter to the State Superintendentof Schools, wherein you refer to the consolidation of the Hammock Springs and Don.aldsonville School districts, and wherein you say:
204

"There is an outstanding bonded indebtedness over, the Donaldsonville School district, as it was, of $25,000.00. There is no indebtedness outstanding against the Hammock Springs district as it was."
"What effect will this merger have upon this outstanding indebtedness with respect to the new district? Will all the property that is not contained in the Donaldsonville school district, after consolidation, be subject for this indebtedness?"
To undertake to subject the property in the distri'ct which has not voted bonds would be violati'ng the time honored principle that there can be no taxation without representation.
Section 145 of the School Code provides, in part:
"County authorities in levying and assessing taxes for the purpo~e of paying the interest and retiring and paying off said bonds shall, in the event that the entire county is not embraced within the area or territory in which said election is held, levy and assess such taxes only against the property located within the area or territory within which said election is held."
Thus it is manifest that some other plan to equalize the situation will need to be worked out in lieu of spreading the tax over property not i'ncluded in the bonded district.
With best wishes for the cause of education in your County, and for yourself personally,
Very sincerely yours, GEO. M. NAPIER, Attorney-General.
INTERSTATE COMMERCE PROTECTS AGENTS FROM THE PAYMENT OF LICENSE, IF SAID AGENT TAKES ORDERS AND SENDS THEM TO THE HOUSE.
April 13th, 192~. Hon. M. Blanchard,
Mayor, Crawford, Georgia. Dear Sir:
Your letter dated March 27th, 1922, was received by me at my home in Decatur, Georgia, last night. It seems that
205

your letter with two others had been, in some mysterious
way, delayed in transmission, or delivery. I greatly regret
thi's delay, and am replying at once.
You state:
"The writer is Mayor of Crawford, Georgia. Fuller Brush Company, manufacturers of brushes and household utilities, and who sells direct to the consumer, by taking orders from house to house, and follows this with delivering the goods and collecting therefor. On page 3 of business license ordinance City of Crawford, Georgia, of which I enclose a copy, we have charged these people a license of $6.25 for six months for one of their representatives to do business in the City of Crawford."
"Fuller Brush Company claims this ordinance is in conflict wih the State and Federal laws, and that they are not liable to pay a licem:e. Certainly we do not want to do anything that is unlawful and are writing you for an opinion on this, if you will be so kind."
If the agent you refer to takes orders and sends them into
the house which later ships the goods in accordance with
the orders, interstate corumerce would protect the agent
from the payment of this license tax. Our courts of last Re-
sort have held:
"One who, in this State, as the representative of a principal residing in another State, takes orders on such principal for the purchase of goods held in another state, and who, when the goods are shipped by his principal to him, receives them in this State, breaks the original packages in which they are contained, distributes them among the customers from whom he obtained such orders, and upon delivery receives from them the price of the goods, 'is engaged in interstate commerce."
Stone vs. State, 117th Ga. 292.
Our Courts of last resort have held that towns and cities have the right to levy occupation taxes, as distinguished
from licenses to do business. An occupation tax upon every
salesman whatever, representing a domesti'c dealer or a nonresident form or corporation rather than a license fee re-
quired of agents selling different articles of commerce, would
put a different complexion on your case. Respectfully submitted, GEO. M. NAPIER, Attorney-General.
206

,
TAX EXECUTIONS C:ANNOT BE LEVIED MERELY UPON ESTATES.

April 15th, 1922. Hon. William A. Wright,
Comptroller-General, State Capitol.
Dear Sir: On your request for opinion as to questi'on raised in letter of Hon. J. J. Loyless, Tax Collector of Early County, which is as follows :

. "There have been a good many levies made for unpaid tax for year 1921, and among them are several estates, and I
have been notified that they are objectionable. I am enclosing notice as references.

"Please return notice; also advise what to do in this case,

by return mail."



Executions cannot be levied merely upon estates. It is

necessary, in case of tax executions, as in ordinary executions

based on judgments of courts,. to issue them against some

person or persons.

It is also indispensably necessary that fi' fa should show

upon whose property it is to be levied. In issuing a fi fa,

if against an estate, the same should be defined as against

John Doe, Executor or administrator of the Estate of Richard Roe, and against the lands and tenements of said Ri'chard roe, deceased (on which taxes may be due and unpaid) the same being part of the estate of said Richard Roe, and being

for unpaid taxes, for the year

, etc., as you usually

state.

If you issue a fi fa merely against John Doe, Executor

say, the word "as executor" would be deemed a mere description of the person, and would be treated as surplussage;

but if the fi fa is issued against John Doe, Executor of the

estate of Ri'chard Roe, and the property is referred to as that belonging to the estate of Richard Roe, deceased, you will

207

have the person named and will sh~w the property upon which the tax execution is to be levied.
Respectfully submitted,
GEO. M. NAPIER, Attorney-General.
NECESSARY FOR ANY SCHOOL DIVISION, WHETHER IT HAD OR HAD NOT VOTED LOCAL TAX, TO HOLD ELECTION FOR ISSUING BONDS.
April 17th, 1922. Hon. J. 0. Bacon,
County Superintendent of Education, Reidsville, Georgia.
Dear Sir: Replying to your favor of the fourteenth instant, in whi'ch you say:
"As you know, Tatnall County's Board of Education levies and collects a county wide school tax. There are some school districts that have voted local tax as a school district, and some have not. Would it be necessary for a school district
in this county that has not voted local tax as a district tc
vote such district tax on itself before it could legally bona itself for the purpose of building and equipping a school building for that district? In reading section 143 in the 1921 school code, under which law we bond school districts, the law says, 'Or of a district in a county now levying a local tax.' I am confused as to the proper interpretation. Please advise me on this.''
"I would also like to know if two or more school districts already having local tax as districts be consolidated into one, does this consolidation annul the local tax privileges of the territory included in the consolidated district? Also if a district having local tax as a district be divided into two districts would each separate district have to vote local tax after the division in order to levy as a district?"
It would be necessary for any school division, county or district, whether it had or had not already voted local tax, to hold an el~ction for issuing bonds for building and equip~ ping school houses.
208

Two or more school districts, already having local tax, would retain the local tax, should such districts be consoli dated.
Should a district already having local tax be divided into two or more districts; the local tax upon the territorJ would continue of force, unless removed by an election. The principle of the law is not to interfere with existi'ng local school conditions.
However, shourd either consolidation or division of districts materially change any local school condition such for instance, as the rate of taxation, the question of local taxation would be resubmitted to the voters of the district, as territorially changed by consolidation or subdivision.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
FAILURE TO PAY TAXES DOES NOT PREVENT THE RIGHT TO VOTE IN ELECTIONS HELD WITHIN SIX MONTHS FROM THE EXPIRATION OF THE TIME FIXED FOR THE PAYMENT.
April 18th, 1922. Hon. J. N. Akins,
Member Board of Registrars, Statesboro, Georgia.
Dear Sir: Yours of the 17th instant received. You ask:
"The question has been raised in this County whether or not those who are delinquent in payment of 1921 taxes can vote in the primary for county officers called and fixed for May 10, 1922. There seems to be a difference of opinion, some believing that such delinquent tax payers can vote in any primary held within six months from December 20, 1921."
Secti'ons 39 and 59, of the Political Code seem to control in the question at issue. Section 39 provides:
209

"No one shall be allowed to register for said election unless he shall have paid all taxes due by him at least six months before the date of the election."
The latter part of section 59 contains the controlling proviso:

"x X

X

X

X

X

X

X

X

X

X

X

and provided that no person shall be qualified to vote at any

election unless he shall have paid all taxes due at least six

months before the same, except when said election is held

within six months from the expiration of the time fixed by

law for the payment of said taxes."

Six months after the taxes are finally due; that is to say "from the expiration of the time fixed by law for the payment of said taxes," seem to be accorded as a matter of grace in which to allow the tax payer to get square with hfs taxes and political standing. The new registration lists cannot be gotten ready before June 1st and the registrars have five days additional within which time to file with the Clerk of the Superior Court of their County, complete lists of the registered voters of the County as prepared and determined by them.
While some of the participants in the primary may not qualify to vote in the general election, because of their failure to pay taxes, this doe~ not prevent the right to vote in elections held withi'n six months from the expiration of the time fixed by law for the payment of said taxes."
Respectfully submitted,
GEO. M. NAPIER, Attorney-General.

210

COUNTY TO WHICH CASE IS TRANSFERRED SHALL BE RE Il\IBURSED BY THE COUNTY FROM WHICH THE CASE IS SENT.
April 20th, 1922.
Hon. L. W. Rogers,
Sheriff Wayne County,
Jesup, Georgia.
My Dear Mr. Sheriff: Yours of the 19th instant, received, in which you state:
"I am writing this ltter to you for you to give me an opinion in the case of The State vs. W. H. Tyson who entered a plea of guilty under three indictments. With the bank case which he was indicted in Wayne County ,and being unable to be tried in Wayne County on account of being unable to get a jury in said case, was transferred to Glyntl County, and after the trial of L. Carter, he decided he had better enter a plea of guilty and ask for the mercy of the court, and after doing so, he. was given a sentence of three months in Wayne County jail, and then to pay a fine of One Thousand dollars, or if he failed to pay said fine of One Thousand dollars, to serve a term of twelve months in Glynn County chain gang.
"Now what I am after; it seems to me that no one seems to know which county is entitled to the One Thousand Dollars fine, and as Wayne County did pay all the expenses of the trials of Glynn County, officers' fees and everything in full, making a total of about three thousand dollars, there being considerable non-resident witnesses. Now, it seems to me that Wayne County would be entitled to this fine, as I made all the arrests, took all the bonds, and served all the subpoenas in said case which were issued by the Clerk of Glynn County, and mailed to me, for which I have never received any pay whatever."
This raises an interesting question.
Our law provi'des:
Code Section 1110.
"'Vhen the venue is changed, the whole costs of the case, and expenses of the trial in the county to which it was transferred shall be borne by the county from which the case is removed. The jail fees, if any, of the person to be tried, shall be collected and paid by the county treasurer of the county from which the case was removed; the mode of collecting these fees, and regulating the amount of fees is the same as in other like cases. The entire court costs, including the
211

costs of the sheriff, bailiff, clerks, and jurors shall also be paid by the county treasurer of the county from which the case was removed, and shall have the same priority as jail fees, and shall be paid to the county treasurer of the county where the case is tried, after having been first paid by him."
The principle upon which the law proceeds is apparently, that the county to which the case is transferred shall be reimbursed fully and "in every particular by the county from which the case is sent for trial. This being done; the bill of costs and expenditures being footed by the county in which theindictment originated; it would seem, as a mere matter of equity, that the fine should go to the county which had borne the burdens of costs and expenses. Certainly, the costs of officers of court of the county transferring the case should be fully paid out of money brought into court by the prosecution of that particular case.
However, where cases were transferred from the Superior Court of Hall County to the City Court ofthat County, and a fund was raised therefrom in the City Court, the officers of the Superior Court were held to have no further claim thereon than to have such costs as had accrued in their favor in those cases, prior to their removal, paid :
Greer vs. Hudson, 74 Ga. 817. I have searched .over many authorities on the subject, hoping to find a case, or a ruling in point, but i'n the comparatively limited time available for this one subject, nothing definite has been brought to light. The court will have to adjudicate the matter, and will have the opportunity of "blazi'ng the way" on this question. With best wishes for your personal and official prosperity and success,
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
212

LOCAL REGISTRAR'S DUTY TO GATHER STATISTICS BY REGISTERING BIRTHS AND DEATHS.
April 25th, 1922. Hon. Joe McHancock,
Ordinary Turner County, Ashburn, Georgia.
Dear Judge: Doctor T. F. Abercrombie, Director of the Bureau of Vital Statistics, has referred to me certain correspondence with Mr. Clark McMurrain, one of the Local Reg- . istrars of your County.
Mr. McMurrai'n writes to the authorities here that your County owes him a considerable sum of money for work performed by him in your County.
The law imposes upon the State Director, and upon the Local Registrars, the mandatory duty of gathering these statistics, by registering births and deaths.
I am trying, Sir, to aid the State, and your County, bYi bringing to your attention the seri'ous view that we are all in duty bound to administer the law as our Representatives enact it. Our Legislature has placed upon every county the duty of paying these fees. This expense might not appeal to us; yet it should be met while the law is in force.
The general movement of getting valuable statistics for the whole of our country, coveri'ng matters of disease, health surroundings, birth rate and death rate by races, and in proportion to population, all this shows how important it is for our State to stay in line.
The failure and non-co-operation of any county handicaps the administration; and, as one of the officers of the law, I am appealing to you for your full co-operati'on in this matter.
213

Awaiting your consideration, and reply, I am, with best wishes,
Very sincerely yours, GEO. M. NAPIER, Attorney-General.
WITHDRAWAL OF PART OF AUTOMOBILE TAX FUND FOR TEMPORARY USE IN PAYING INDEBTEDNESS OF STATE NOT AUTHORIZED.
April 25th, 1922. Hon. Thomas W. Hardwick,
Governor of Georgia, State Capitol.
Dear Governor Hardwick: In response to your request for opinion as to wether the law authorizes the withdrawal by warrant of a portion of the automobile license tax fund now i'n the State Treasury for the payment of the indebtedness of $500,000, outstanding against the State, this being for an amount borrowed under authority of the Act authorizing the Governor to borrow money to supply deficiencies.
Section 3, of the Act of 1919 (page 247) provides that all funds shall be deposited with the Treasurer of this State to the credit of the State-Aid-Road fund.
The succeeding section of thi's Act provides that the disbursement of this fund "shall be made upon warrants drawn by the Governor upon bills. of particulars, and vouchers approved and submitted by the State Highway Department, or its only authorized representatives."
The Act of 1921 amending the Highway Department Act does not change the principle upon which the funds are to be withdrawn from the Treasury.
214

With a large sum in the Treasury, not needed at the present time, i'n meeting expendituresof the Highway Department, it would seem good business policy to use a portion of these funds to pay off the indebtedness of the State, above referred to, and thus save about two thousand dollars per month in interest. The State would have the right to borrow again to the extent of $500,000 to replace any part of the special fund so withdrawn. The Executive Department also has a precedent for such a shifting of the funds.
But the provisions of the law seem without authority for such acti'on.
Code section 163, which provides for payments from the Treasury upon the warrant of the Governor says: "The warrant shall always specify on what appropriation or fund it is drawn."
Code section 228 (8) prescribing the duties of the State Treasurer provides: "All payments from the Treasury shall be paid from the fund appropriated for such purpose, and not for any other."
Of course, it was in the power of the General Assembly to have provided for the temporary use of these funds, arisi'ng from the automobile license tax, in meeting current needs of the State, and for their replacement, but this was not done. The indebtedness referred to was outstanding when the Highway Department Act was amended, and it is, of course, to be presumed that the Legislature was aware of the fact that the State was paying interest on the indebtedness contracted .to supply deficienci'es in its revenue. That the Legislature did not make provision for the profitable use of such funds as might accumulate in such sums as to be available for just such an opportunity, would indicate that it did not desire to modify the general plan of controlling the finances of the State, of keepi'ng the respective funds unmixed.
The approaching session may, in its wisdom, see fit torevise the provision covering the use of the automobile license
215

fund; but, in the absence of such action it is my opinion that the weight of the law negati'ves the propriety of using any part of this fund to pay off indebtedness of the State.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
VOTERS l\IUST BE REGISTERED AND SHALL HAVE PAID ALL TAXES, ETC.
May 1st, 1922. Hon. Leon Covington,
Chairman Board of Registrars, Rome, Georgia.
My Dear Sir: Yours of the twenty-fifth instant received yesterday, wherein you ask:
"Is a man or woman who has never registered before entitled to vote at this special election who has registered and paid taxes within five days after the call of this special election?"
"Is a man or woman entitled to vote at this special election, who has previously registered and paid back taxes due within five days from the call of said special election?"
1st: In my opinion, they are so entitled to vote. The chief qualificati'ons for voting are that the voter must be registered and shall have paid all taxes due at least six months before the same, unless the election isheld within six. months from the expiration of the time fixed by law for the payment of said taxes.
2nd: There is apparently no legal obstacle to voters bei'ng allowed to register within the five days after the call of the special election, provided they qualify upon the payment of. taxes which can at that time be legally required of them under the law.
216

The law should be construed and applied in such manner as to encourage the payment of taxes, and so as to enfranchise as many citizens as possible.
With assurances of esteem and best wishes, Respectfully submitted, GEO. M. NAPIER, Attorne,r-General.
IT IS UNNECESSARY FOR CANDIDATES TO DESIGNATE WHICH VACANCY THEY DESIRE TO FILL.
May 2, 1922. Hon. L. D. Passmore,
Chairman, Democratic Committee, Sylvester, Georgia.
Dear Sir: Replying to yours of the twenty-ninth ultimo, wherein you ask opinion as to whether candidates for two vacancies in the House of Representatives from your County should designate on their tickets which of these vacanci'es they seek to fill; or whether the candidates should simply announce their candidacy generally :
In my opinion, it is unnecessary for candidates to designate which vacancy, that is to say, whose shoes, they desire to fill. They should merely run generally as candidates for the House of Representati'ves, just as they would do if the terms of living men had ended, and the candidates were seeking places as Representatives in the Legislature.
I am not familiar with any legal provisions requiring a runover in the event neither of the candidates receives a majori'ty. It seems the two men receiving the highest number of votes should be declared elected.
With best wishes, I am, . Very sincerely yours, GEO. M. NAPIER, Attorney-General.
217

GAME AND FISH WARDEN OF CHARLTON COUNTY NOT AUTHORIZED TO REQUIRE PAYMENT OF LICENSE FEE.
May 2, 1922. Hon. J. Frank Rhodes,
State Game and Fish Commissioner,
State Capitol. Dear Sir: In response to your request for opinion as to the validity of the local Act, passed by the Legislature in 1917, in reference to fishing in the waters of Charlton County, and in reference to shipping fish taken from the waters of that County. See Georgia Laws 1917, page 327.
The caption of the Act does not make reference to any prohibition of fishing in the streams, lakes or other waters of Charlton County, but only to the removal of fish by "transportation, shipping or otherwise from any of the streams, lakes, ponds or any other body, or bodies of water containing fish within the boundaries of Charlton County."
Thi's would render, under our Constitutional provision, void the provision of said Act, that non-residents may not fish in the waters of Charlton County without paying for a license to so fish.
But Section 1 of this Act provides that non-residents of that county may not fish for the purpose of transporting, or shipping fish out of the boundaries of Charlton County.
The Act further provides that any person or persons desiri'ng to fish in the waters of Charlton County shall provide themselves with a license, etc. This would prohibit residents of the county from fishing, unless they should first obtain a license, which, manifestly, is not the intention of the Act.
On account of the defects in the Bill, both in the caption, and body of i't, it is my opinion that it is unconstitutional, invalid and inoperative, and that under it the county game and fish warden of Charlton County, is not authorized to
218

require the payment of a license fee from either non-residents, or residents of that county.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.

BASIS OF DIVISION OF FEES AMONG TAX RECEIVERS, EACH

SERVING P A~T OF YEAR.

.

May 10, 1922. ,
Hon. William A. Wright,
Comptroller-General,
State Capitol.
Dear Sir: Replying to your recent letter aski'ng for advice and opinion as to the proportionate commissions to which Messrs. John Armistead, and W. H. Abbott, of this County, are entitled, as Tax Receivers, I beg to submit the following:
Mr. T. M. Armistead, Tax Receiver of Fulton County, died March 18th, 1922. His son, Mr. John Armistead, was appoi'nted to fill the office during the interim, pending a special election to elect a successor. The election occurred April 18th, 1922, and Mr. W. H. Abbott was duly elected, and immediately qualified as Receiver.
How are commissions to be apportioned among John Armistead, W. H. Abbott, and the estate of T. M. Armistead?
The Courts will likely have this matter to decide. There appears to be no precedent wherein simi1ar facts were involved.
Is the total compensation arising from the commissions received by a Tax Receiver to be treated as an annual salary, divisible into monthly portions, and in such a case as the one in hand tc:1 be prorated among temporary and permanent
219

officials accordi'ng to length of time of service ; or is the remuneration respectively to depend upon the amount of tax returns received by each official?
In the case of:- Floyd County vs.Salmon, 151 Ga. 316, the Supreme Court held in effect that the compensation of the Tax Receivers and Collectors should be treated "in the nature of solary for his entire services for the year." In the 26th Appeals, page 582, the case of the same partie~ being under consideration the Court i'n commenting on the decision of the Supreme Court, above referred to, and in passing upon the compensation of the Tax Receiver, as compared with the compensation paid the Tax Collector, said;- "P'rior to August_17, 1918, he (the Tax Receiver) was entitled to receive one-half of the compensation of the Tax Collector for the same peri'od of time, and for the remainder of the year, he was entitled to the same compensation as the Tax Collector, the compensation of both officers to be treated in the nature of fixed salaries for the entire year, and to be apportioned accordingly.
The Supreme Court of Florida held in the case of the Collector of Revenues:-
"We think that the clear intention of the Legislature was to provide compensation with reference to the collections made upon each annual assessment, and that the same ru1.e applies whether one or more officers make the collections. Any other construction would be manifestly unjust to the offiCers engaged in this duty. The terms of the law attach the compensation to the office, and the warrant is a process under which the collection is made for each annual assessment. The compensation is fixed with reference to the annual assessment,"
State of Florida ex. rei. Gonzales vs. Drew, 16th Florida, 305.
In view of these decisions, it is my opi'nion that the compensation of Tax Receivers in this State is now upon an annual basis. The whole work of the year is compensated by the total commissions paid him. It, therefore, follows that the amount of tax returns received by the incumbent for any particular month, or months, cannot legally fix the compensati"on earned for that month or perioa of time.
220

And where an Appointee serves for a certain number of months, and is in turn succeeded by a Receiver, who is elected at a special election, it would seem equitable and legal for the appointee to be paid in such proportion to the total compensation paid the officer, as the time he serves bears to the period of twelve months, i'n which the compensation will be earned.
Replying to the question raised as to Mr. Armistead's right and competency to make up a digest including all the returns during his incumbency: It would be the duty of the Tax Receiver, that is, the duly elected, to make up the digest from the returns taken in during the appoi'ntee's time of service, as well as from the returns such regularly elected officer has received. "Upon the expiration of the officer's term, unless he is authorized by law to hold over, his rights, duties and authority as a public officer must ipso facto cease."
Public Offices and Officers by Meachern, Section 396. Mr. Abbott, the elected Receiver, who has qualified and assumed the duties of the office, now is under the responsibility of having a digest of all the returns for the current year made out, under his sup~rvision. I find no where in the laws of Georgia any provision taking the offi'ce of Tax Receiver out of the general rule above cited.
Respectfully submitted, GEO. M. NAPIER, Attorney-General.
221

INDEX

A.

ACTIONS, bill for accounting and settlement against sureties, would save a multiplicity of suits.......... . . . . . . . . . . . 147

ACCOUNTING AND SETTLEMENT. See Actions.

APPROPRIATIONSPensioners restricted to pension list prior to 1919. . . . . . . . . Rate of payment of appropriation to Georgia Normal and Industrial College . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Supplemental appropriation available for support of Confederate Soldiers' Home . . . . . . . . . . . . . . . . . . . . . . . . . . . .

128 155/ 130

ATTORNEY-

Right to object to school bonds . . . . . . . . . . . . . . . . . . . . . . . . . . 198 AUTOMOBILE TAX-
Withdrawal of part of, for temporary use in paying indebtedness of State not authorized . . . . . . . . . . . . . . . . . . . . . . 215

B.
BANKSAssessment of bank stock made for depositors only . . . . . . . . 157 Banking law gives certain priority . . . .. . . . . . . . . . . . . . . . . 180 Checks and foreign exchange, non-liability . . . . . . . . . . . . . . . 13 Claims for cost, whether or not priorities against assets of bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 County depositories, may be in some other county . . . . . . . . 115 Eligible for State depository . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Face value of stock is the par value . . . . . . . . . . . . . . . . . . . . . 98 Incorporation of, must be shown . . . . . . . . . . . . . . . . . . . . . . . . . 40 Interest should not run after bank placed in hands of superintendent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Law contemplates 100 per cent assessment . . . . . . . . . . . . . . . . 95 Liberty Bonds payable under Section 19 of the Banking Laws .............................. .".............. 84 Liens shall rank according to date . . . . . . . . . . . . . . . . . . . . . . . . 18 Priority as to payment of debt due Finance Corporation 91 Stockholder's Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Trust company, privileges may be acquired . . . . . . . . . . . . . . . 45
BENZOL, is within Oil Inspection Laws . . . . . . . . . . . . . . . . . . . . . 41
222

BOARD OF EDUCATIONAuthorized to pay cost of proceedings against Superintendent 119 Empowered to recommend amount of taxation for schools 67 May establish high schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Right to say whether taxes shall be five mills or less . . . . . 66
BOND, Constables must be under . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 BONDS-
Federal Land Bank, not U. S. Bonds . . . . . . . . . . . . . . . . . . . . . 17 Publishers' bonds filed with prices, approved with reserva-
tions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 School bonds are properly subject to the objection of an
Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198 Solvency of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 BOUNDARY LINE, State of Georgia . . . . . . . . . . . . . . . . . . . . . . . . 4 BUREAU OF MARKETSFertilizer tag tax can be used by, for work in furtherance
of its duties ............................. , . . . . . 193 Has the right to draw upon the State Treasurer for part
of fertilizer tax ....................... . . . . . . . . . . . . 153 BUTTS COUNTY, Mandamus against Tax Asstssors . . . . . . . . . 75

c.

CASES~

Disposed of in Supreme Court of Georgia . . . . . . . . . . . . . . . 4

Disposed of in Superior Courts . . . . . . . . . . . . . . . . . . . . . . . . . 10

Disposed of in U. S. Supreme Court . . . . . . . . . . . . . . . . . . . 4

Transferred, county to which shall be reimbursed by the

county from which case sent . . . . . . . . . . . . . . . . . . . . 211

CANDIDATES, Unnecessary for, to designate which vacancy

they desire to fill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

CALCIUM ARSENATE, Fertilizer Inspectors may inspect . . . . 135

CHARLTON COUNTY, Changes in Board of Commissioners. . . 64

CHECKS-

.

Required to be certified by officer of bank . . . . . . . . . . . . . . . . 197

State Treasurer entitled to" amount of, without exchange 182

CHILDREN, Puniohment for failure to send child to school . . . . 92

CIGARS, Dealers in, subject to tax in towns incorporated or not 182

CITY COURT, Vacancy in office of Judge, how filled......... 143

CITY COURT OF ASHBURN, Law abolishing held inoperative 74

CITY COURT OF ELLAVILLE, Act creating fixes the fees . . . . 114 CITY OF TENNILLE, Act abolishing' school system dependent

on referendum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

CLAIMS, War Finance Corporation should be entitled to priority 158

223

CLERKS SUPERIOR COURTS, Entitled to fee for entering certificates on deeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

COMMERCE AND LABOR, Commissi9ner of. Cost of printing reports of, payable out of State Printing fund ............................................ ' 187 Discretion of, whether or not seat is suitable one . . . . . . . . . 23

COMMISSIONERS OF ROADS AND REVENUES, Notary Public would have to resign to become member of . . . . . . . . 167

COMPULSORY SCHOOL ATTENDANCE, Sheriff not entitled to cost in advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

COMMERCIAL REPORTING AGENCIES, Pay what amount of tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

CONFEDERATE SOLDIERS' HOME, Supplemental appropriation available ................. .'. . . . . . . . . . . . . . . . 130

CONTINGENT FUND, Cost of weights and measures payable out of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CONSTABLES, Must be under bond . . . .. . .. . . . .. . . . . . . . . . . . .
'i CONVICTS, Record must show his conduct . . . . . . . . . . . . . .
COSTSClaims for, whether priorities against assets of insolvent banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Sheriff cannot exact in advance for enforcing compulso'ry
school attendance . . . . . . . . . Fees allow~d officers of Court in cases involving violations
of the Game and Fish Law . . . . . . . . . . . . . . . . . . . . . . CORPORATIONS-
Contract with each other having same officers . . . . . . . . . . . . , Need not obtain from Ordinary a certificate that they have
registered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . War Finance Corporat~on claims should be entitled to
priority ................................. ~ . . . . Salary of clerk in public service . . . . . . . . . . . . . . . . . . . . . . . . Stock in, subject to taxation . . . . . . . . . . . . . . . . . . . . . . . . . . . . COUNTIESAuthorities cannot employ demonstration Agent . . . . . . . . . Authorities of, can contribute to payment of salaries out
of funds not set aside for special purpose . . . . . . . . Depository may be in some other . . . . . . . . . . . . . . . . . . . . . . . Cannot pay demonstration agent salary out of county funds Chairman of County Commissioners should not perform
duties of deputy warden . . . . . . . . . . . . . . . . . . . . . . . . . . Duty of Ordinary to employ counsel to defend suits against

69 135 90
168
175
166
16
127
158 119 102
179
188 115 179
149 203

224

County to which case transferred shall be re-imbursed by county from which case came . . . . . . . . . . . . . . . . . . . . . . . 211
Duty of County Treasurer to pay all orders according to date 159 Law prohibits one person holding two county offices at same time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Health officers not subject to professional tax . . . . . . . . . . . . . . . . 111 Method by which to change county site . . . . . . . . . . . . . . . . . . . 117 School Districts of, should not be carved out of more than one 197 School Superintendent, proceedings against payable by Board of Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Two offices cannot be held by same person at same time 130 Treasurers shall pay local registrars . . . . . . . . . . . . . . . . . . . . 189
COUNTY COMMISSIONERSDuty of looking after solvency of bonds . . . . . . . . . . . . . . . . . . 73 Entitled to hold office until election in the County next held for County officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
COUNTY POUCEMENT, Cannot serve papers in civil matters 38
COUNTY TREASURER, Duty to pay all orders according to date 159

D.
DEPOSITORS, Assessment of bank stock made for depositors 157

E.

ELECTIONSCounty Commissioners entitled to hold office until election in the county next held ........................ , . . . 183 Incumbent upon Ordinary to call election . . . . . . . . . . . . . . . . . 177 Necessary, for issuing bonds, whether or not school division had voted local tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208 Notice required for school elections . . . . . . . . . . . . . . . . . . . . . . 113

ELLIS HEALTH LAWTwo successive grand juries may suspend . . . . . . . . . . . . . . . . 171 Would become inoperative upon recommendaton of two successive grand juries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

ESTATES, Tax Executions against . . . . . . . . . . . . . . . . . . . . . . . . . . 207

EXPENSESIndustrial Commission to bear all expenses . . . . . . . . . . . . . . 164 Itemized statement can be required by Governor . . . . . . . . . . 190

EXECUTIONS, Tax t;xecutions cannot be levied merely ,upon

estates

0 0 - 0

207

225

EXTRADITIONDiscretion of Governor as to sufficiency of indictment . . . . S6 Governor may recall approval for . . . . . . . . . . . . . . . . . . . . . . . 134

F.

FEMALES-

Entitled to vote

37

Not subject to street tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

Not due to pay poll tax for the year 1921 . . . . . . . . . . . . . . . . 72

Suffrage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Subject to poll tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

FEESAct creating City Court of Ellaville fixes fees . . . . . . . . . . . . 114 Basis of division, among tax Receivers, each serving part of year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 Clerk Superior Courts entitled to, for entering certificates on deeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 Game and Fish Warden of Charlton County not authorized to require payment of license fee . . . . . . . . . . . . . . . . . . . . 218 Solicitor-General, allowed in special cases . . . . . . . . . . . . . . . 82 Sheriff entitled to for receiving and discharging prisoner 85

FERTILIZER INSPECTORS, May inspect calcium arsenate . . . 135

FERTILIZER FEES, Can be used by Bureau of Markets . . . . . . 193 FI. FAS., Tax Fi. Fas., non-taxable . . . . . . . . . . . . . . . . . . . . . . . . . . 174 FISH, Punishment for poisoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 FRATERNAL ASSOCIATIONS, Merger of, lawful, if fair . . . . . 137 FUNDS, County funds can be used to pay salaries, if not set
aside for a special purpose , . , ... , ........... , . . . . . 1,88

G.
GAME AND FISH, What amount of cost _allowed court officers on cases involving violations of the Game and Fish Laws 166
GAME AND FISH WARDEN, Not authorized to require payment of license fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
GEORGIA NORMAL AND INDUSTRIAL COLLEGE, Rate of p~~,-:nent of appropriation ....................... : .. : .. 155
GEORGL\. REPORTS, Paid for out of funds arising from sale of Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
GOVERNORHas authority to require itemized statement of expense account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
226

Authority to sell furniture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Authorized to approve resolution . . . . . . . . . . . . . . . . . . . . . . . . 30 Discretion of, as to sufficiency of indictment . . . . . . . . . . . 86 Duty to satisfy himself whether bill was accompanied by
record of yeas and nays ... ........ _. . . . . . . . . . . . . . . . . 24 Mansion property, taxability of . . . . . . . . . . . . . . . . . . . . . . . . . 53 May recall approval for extradition . . . . . . . . . . . . . . . . . . . . . 134 Power to declare office vacant . . . . . . . . . . . . . . . . . . . . . . . . . 145 Right to decline to continue sale of School Warrants . . . . . . 132
GRAND JURY, Two successive grand juries may suspend operation of Ellis Health Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

H.

HABEAS CORPUS, Denied by U. S. District Judge

125

I.

INDICTMENT, Discretion of Governor, as to sufficiency of

86

INDUS~RIAL COMMISSION-General expenses to be borne by the Commission . . . . . . . . . . 164 Not required to refund amount paid by State for certain articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

INQUESTS, Duty of Coroners to hold . . . . . . . . . . . . . . . . . . . . . . . 151

INSURAN.CE, Co-insurance clause not in conflict with law. . . . 172

INSURANCE COMMISSIONERCannot refuse to issue license, if laws of Georgia are met 196 Grant license to transact business . . . . . . . . . . . . . . . . . . . . . . 32

INTERSTATE COMMERCE, Protects agents from payment of

license

205

J.

JURY, Military pay members exempted from duty . . . . . . . . . . . . 191

JUSTICE OF THE PEACE, Commission legally issued to, if

vacancy existed

186

L.

LABELS, Syrup called "Smile" not fully labeled . . . . . . . . . . . . . 125

LAND, Government land is non-taxable . . . . . . . . . . . . . . . . . . . . . 185

LEGISLATURE, Contemplated school districts should not be

carved out of more than one county

197

227

LIBERTY BONDS, Payable by bank which fails, under Section

19 of the Banking Act . . . . . . . . . . . . . . . . . . . . . . . . . . .

84

LICENSESInsurance Commissioners can not refuse to grant, if laws of Georgia met . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 Interstate Commerce protects agents from the payment' of same . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

LITIGATIONPending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 State interested party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

M.
MALFEASANCE, Sheriffs, how tried for . . . . . . . . . . . . . . . . . . . . 170 MANSION, Governor authorized to sell furniture contained
therein ....................................... . . . 154 MILITARY, Pay members exempted from jury duty . . . . . . . . . . 191 NARCOTIC DRUGS, Osteopath not authoriz~d to prescribe... 93

N.

NOTARY PUBLIC, Would need to resign to become Commissioner of Roads and Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

OFFICER, Failing to make bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

OIL INSPECTION LAWSBenzol is within . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Gasolene used for fuel, dealers within . . . . . . . . . . . . . . . . . . . . 52

ORDINARY-

Required to fix bond of Tax Collector . . . . . . . . . . . . . . . . . . . . . 68 Commission allowed for collecting inheritance tax , . . . . . . . 35 Duty to employ counsel to defend suits against the county 203 Need not grant certificate to corporation that has regis-
tered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . 127 Incumbent upon, to call special election . . . . . . . . . . . . . . . . . . . 177 Fees in lunacy cases .......... : . . . . . . . . . . . . . . . . . . . . . . . . . 39 Fees, under Act of 1920 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

OSTEOPATHS, Not authorized to prescribe narcotic drugs

93

P.
PENSIONS, 1922 Pensions restricted to pension list prior to 1919 128 POLL TAX-
Females not due to pay, for year 1921 . . . . . . . . . . . . . . . . . . 72
228

Women subject to . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 PRINTING, Cost of, reports of Department of Commerce and
Labor, payable out of State Printing Fund . . . . . . . . . . . 187 PROPERTY, Not included in bonded district, tax should not be
spread over same . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204 PUBLIC OFFICERS..:_
Tax Receiver's Compensation, same as Tax Collector's . . . . 151 Duty of Coroners to hold inquests over dead bodies . . . . . . 151 Expenses of, how paid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 PUBLIC OFFICER, Failing to do his duty, Governor has power
to declare office vacant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 PUBLIC OFFICES-
Two cannot be held by same person at same time . . . . . . . . 130 Office of Tax Receiver, how filled . . . . . . . . . . . . . . . . . : . . . . . . 78 Solicitor-General disqualified :. . . . . . . . . . . . . . . . . . . . . . . . . . . 142 Vacancy in, how filled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 PUBLIC SCHOOLSFunds required to be kept separate from State and County 131 Increase of taxation to support . . . . . . . . . . . . . . . . . . . . . . . . .. . 65 May be established by Board of Education . . . . . . . . . . . . . . 77 Notice required for school elections . . . . . . . . . . . . . . . . . . . . . 113 PUBLISHERSLaw requires publishers of school, books to file affidavits 140 Bonds filed with prices, approved with reservations . . . . . . . . 138
R.
REGISTRARSCounty Treasurer shall pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Duty to gather statistics by registering births and deaths 213
SALARY, Can be paid out of any funds of County not set aside for special purposes ........... : . . . . . . . . . . . . . . . 188
SANITY, Inquiry as to, must be held in the County of subject's residence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SCHOOLS, Bonds of, are subject to the objection of an Attorney 198 SCHOOL DISTRICTS-
Legislature contemplated, should not be carved out of more than one county . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Taxation of property in, is applied for maintaining, and not for building school houses . . . . . . . . . . . . . . . . . . . . . . . . . . 96
229

SCHOOL WARRANTSR. N. Berrien, agent of State, in discounting . . . . . . . . . . . . 104 Governor's right to decline to continue sale of . . . . . . . . . . . . 152

SEARCHES AND SEIZURES, Must be reasonable . . . . . . . . . . . 43

SECURITIES, Cannot be pledged when already set apart . . . . . 163

SECURITIES COMMISSION, License allowed by . . . . . . . . . . . . 47

SHERIFFMay not exact payment of costs in advance for enforcing compulsory school attendance . . . . . . . . . . . . . . . . . . . . . . . 175 Fee allowed for receiivng and discharging prisoner . . . . . . . 85 Fee in lunacy cases . . .. ... . .. ... ... ...... ... . .. ........ 39
How tried for malfeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

SINKING FUND, Cannot pledge collateral bonds already set apart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

SOLICITOR-GENERAL, Fees allowed in special cases

82

STATE OF GEORGIABoundary line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Interested party to litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Not authorized to withdraw part of automobile tax fund in paying indebtedness of State . . . . . . . . . . . . . . . . . . . . . . . . 214

STATE BOARD OF HEALTH, Empowered to make rules and

summon persons to appear before venereal clinic

97

STATE DEPOSITORY. (See Banks.)

STATE LIBRARIAN, Length of term . . . . . . . . . . . . . . . . . . . . . . 27

STATE OIL INSPECTOR, Fees on gasoline reshipped . . . . . . . . 50

STATE TAX COMMISSIONER, May employ agents . . . . . . . . . . 112

STATE TREASURY, Entitled to remittance of amount of checks without exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

STATE TREASURER, Allowed to pay Bureau of Markets part of fertilizer tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

STATISTICS, Duty of Registrars to gather by registering births and deaths . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214

STOCKS, Assessment on bank stock made for depositors...... 157

STOCKHOLDERSLiable for 100 per cent assessment to cover deposits . . . . . . 95 In banks, liable for full assessment . . . . . . . . . . . . . . . . . . . . . 100

230

STREAM, The term, "fresh water drain," has reference to arm or branch of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

SUFFRAGE, Qualifications of female voters . . . . . . . . . . . . . . . . . 79

SYRUP, Called "Smile" not fully labeled

125

T.

TAXATIONCommercial reporting agencies pay what amount of license 124

Commission of ten per cent due Tax Collectors for collecting special or Occupational taxes . . . . . . . . . . . . . . . . . . . . . 181

County Health Officers not subject to special tax . . . . . . . . . 111

Dealers in cigars subject to tax . . . . . . . . . . . . . . . . . . . . . . . . . . 182

Failure to pay taxes does not prevent right to vote in elections, when held within six months . . . . . . . . . . . . . . . . . . 210

Females not subject to street tax . . . . . . . . . . . . . . . . . . . . . . . . 176

Fi. Fas., non-taxable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

Government land non-taxable . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

Increase of, to support public schools . . . . . . . . . . . . . . . . . . . . . 65

Maimed world war veterans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

Mansion property, taxability of . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Necessary for any school district to hold election whether it had or had not voted local tax . . . . . . . . . . . . . . . . . . . . . . . 209
Property not included in bonded district, tax should not be spre.ad over same ................................. . 204

School tax collected by Tax Collector; com!Jensation due .. . 144

TAXES, All must be paid by voters ......................... . 217

TAX ASSESSORS, Mandamus against ...................... . 75

TAX COLLECTORSBond of .. ~ ........................................... . 68

Commissions are ten per cent of amount of special taxes or Occupational taxes .............................. . 181

Defaultnig, subject to dismissal by Governor ............ . 120

Entitled to compensation in collecting school tax ......... . 144 Required to keep school funds separate from State and
County ........................................... . 131

TAX RECEIVERS-

Basis of division of fees among each serving part of year 220

Compensation, same as Tax Collector for collecting County

Tax ' 151

Vacancies filled, how

78

231

TENNESSEE COPPER COMPANY, Additions to contract

21

TRUST COMPANIES. (See Banks.)

v.
VACANCIES, Unnecessary for candidates to designate which one they desire to fill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
VETERANS, Associ.ation of maimed world war veterans . . . . . . 146 VITAL STATISTICS, Counties not exempt from paying fees . . . 15 VOTERS-
Must be registered and pay all taxes .................... .' 217 Not disqualified to vote, if taxes not paid within six months,
provided election held within six months from expiration of the time fixed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

w.
WAR FINANCE CORPORATION, Claim should be entitled to priority ............... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
WATER, Fresh, the term of, has reference to an arm or branch of flowing stream . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
WEIGHTS AND MEASURES, Cost of, payable out of contingent fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
WOMEN, Subject to poll tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 .W. & A. RAILROAD-
Discount of rental notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13
Warrants drawn on non-taxable......................... 48

232